The Counterfactual Yardstick: Normativity, Self-Constitutionalisation and the Public Sphere (DIA-LOGOS) [New ed.] 9783631654880, 9783653047387, 363165488X

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Dia-Logos

Schriften zu Philosophie und Sozialwissenschaften Studies in Philosophy and Social Sciences

18

Karolina M. Cern, PhD, Chair of Ethics at the Department of Philosophy, Adam Mickiewicz University (Poland); author of The Conception of Time by the Early Heidegger (2007), co-author of Ethos in Public Life (2008, repr.2011); co-editor of eight volumes and author of numerous articles in practical philosophy.

Karolina M. Cern · The Counterfactual Yardstick

The chief concern of this book is to discuss a democratic legitimation for modern law. Investigation is therefore steered towards current debates on processes of Europeanisation and the issue of self-constitutionalisation of a democratic polity. This turns out to be a complex concept referring to the threefold constitutionalisation: legal, institutional and horizontal, and hence to processes of evolutionary constitution making as well as institutional and societal constitutionalisation. Developing democratic legitimation in post-conventional terms rests on the presumption of increasing the processes of incrementally rationalising lifeworlds and unveils the role of the practical power of judgement transferred from the concept of a (monological) subject to the (dialogical-discursive) public spheres.

Bd./vol. 18

Dia-Logos Herausgegeben von/Edited by Tadeusz Buksiński und Piotr W. Juchacz

The Counterfactual Yardstick Normativity, Self-Constitutionalisation and the Public Sphere

Karolina M. Cern

ISBN 978-3-631-65488-0

DIA 18_265488_Cern_GR_HCA5 PLE.indd 1

20.08.14 11:55

Dia-Logos

Schriften zu Philosophie und Sozialwissenschaften Studies in Philosophy and Social Sciences

18

Karolina M. Cern, PhD, Chair of Ethics at the Department of Philosophy, Adam Mickiewicz University (Poland); author of The Conception of Time by the Early Heidegger (2007), co-author of Ethos in Public Life (2008, repr.2011); co-editor of eight volumes and author of numerous articles in practical philosophy.

DIA 18_265488_Cern_GR_HCA5 PLE.indd 1

Karolina M. Cern · The Counterfactual Yardstick

The chief concern of this book is to discuss a democratic legitimation for modern law. Investigation is therefore steered towards current debates on processes of Europeanisation and the issue of self-constitutionalisation of a democratic polity. This turns out to be a complex concept referring to the threefold constitutionalisation: legal, institutional and horizontal, and hence to processes of evolutionary constitution making as well as institutional and societal constitutionalisation. Developing democratic legitimation in post-conventional terms rests on the presumption of increasing the processes of incrementally rationalising lifeworlds and unveils the role of the practical power of judgement transferred from the concept of a (monological) subject to the (dialogical-discursive) public spheres.

Bd./vol. 18

Dia-Logos Herausgegeben von/Edited by Tadeusz Buksiński und Piotr W. Juchacz

The Counterfactual Yardstick Normativity, Self-Constitutionalisation and the Public Sphere

Karolina M. Cern

20.08.14 11:55

The Counterfactual Yardstick

Dia-Logos Schriften zu Philosophie und Sozialwissenschaften Studies in Philosophy and Social Sciences Herausgegeben von / Edited by Tadeusz Buksiński / Piotr W. Juchacz Advisory Board Karl-Otto Apel (Frankfurt am Main) Manuel Jiménez-Redondo (Valencia) Peter Kampits (Wien) Theodore Kisiel (Illinois) Hennadii Korzhov (Donetsk) Marek Kwiek (Poznań) George McLean (Washington) Evangelos Moutsopoulos (Athènes) Sergey Nizhnikov (Moscow) Ewa Nowak (Poznań)

Bd. /vol. 18

Karolina M. Cern

The Counterfactual Yardstick Normativity, Self-Constitutionalisation and the Public Sphere

Bibliographic Information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data is available in the internet at http://dnb.d-nb.de. Library of Congress Cataloging-in-Publication Data Cern, Karolina M., author. The counterfactual yardstick : normativity, self-constitutionalisation and the public sphere / Karolina M. Cern. p. cm. — (Dia-logos ; 18) Includes bibliographical references. ISBN 978-3-631-65488-0 1. Sociological jurisprudence. 2. Law—Philosophy. 3. Constitutional law— Europe. I. Title. K370.C47 2014 340'.115—dc23 2014027780 Publishing Reviewer: Professor Dr. Gerhard Seel (University of Bern, Switzerland) This publication was financially supported by the Adam Mickiewicz University in Poznań. This book has been prepared within the framework of the research project: NN 110 237839 financed by the Polish Ministry of Science and Higher Education. ISSN 1619-005X ISBN 978-3-631-65488-0 (Print) ISBN 978-3-653-04738-7 (E-Book) DOI 10.3726/978-3-653-04738-7 © Peter Lang GmbH Internationaler Verlag der Wissenschaften Frankfurt am Main 2014 All rights reserved. Peter Lang Edition is an Imprint of Peter Lang GmbH. Peter Lang – Frankfurt am Main · Berlin · Bruxelles · New York · Oxford · Warszawa · Wien All parts of this publication are protected by copyright. Any utilisation outside the strict limits of the copyright law, without the permission of the publisher, is forbidden and liable to prosecution. This applies in particular to reproductions, translations, microfilming, and storage and processing in electronic retrieval systems. This publication has been peer reviewed. www.peterlang.com

To the Kantian Transcendental Imagination & the Three Modi of Its Pure Synthesis As Interpreted by Martin Heidegger And Personified by Elka, Sienia and Piti

Table of Contents Acknowledgements........................................................................................... 1 Introduction ...................................................................................................... 5 CHAPTER I Taking Citizens Seriously. Questioning the Time Modes of Legal Enterprise ........................................................................................... 23 1. Introduction to the Problematics ............................................................... 23 2. Context of Investigations .......................................................................... 26 3. The First Road: Dworkin’s Monological Meta-Construction of the Present ........................................ 28 4. The Second Road: Habermas’s Discursive Reorientation Towards the Future-Oriented Project ............... 52 5. The Third Road: MacCormick’s Present Perfect of the Interpretative Cooperation ..................................... 61 6. At the Crossroads or Polemical Signposts ................................................ 80 7. Where the All Roads Lead ........................................................................ 86 CHAPTER II The Idea of Self-Constitutionalisation and Constitutional Patriotism ............. 91 1. The Background of Reading the Idea of Constitutional Patriotism .................................................................................................. 91 2. Constitutional Patriotism—the Outline of Approaches ............................ 102 3. Basic Premises of the Idea of Constitutional Patriotism ........................... 107 4. Constitutional Patriotism—the Boat Metaphor and its Readings ............. 114 5. A Further Explication of the Three Time Modes of the Constitutional Interpretation ..................................................................... 135 CHAPTER III The Ethical Fibre of Constitutional Patriotism and Horizontal Constitutionalisation ........................................................................................ 147 1. Questioning Values in Habermas .............................................................. 147 2. Values and Interests ................................................................................... 152 3. Values and Norms ..................................................................................... 160 4. Value Enhancement and the Concept of Authenticity ............................... 166 5. The Political Turn Towards Culture .......................................................... 173

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CHAPTER IV Institutional Intersections or Contractarianism by Habermas .......................... 209 1. A short Outline of Basic Ideas that Characterise Contractarian Theories ..................................................................................................... 209 2. Habermas’s Transformations of the Contractarian Paradigm ................... 212 CHAPTER V What is the Prescription for the European Union?........................................... 253 1. Kantian Ius Cosmopoliticum or European Self-Constitutionalisation? ........................................................................ 253 2. Internal Dimension of the EU’s Constitutionalisation .............................. 262 3. External Dimension of the EU’s Constitutionalisation ............................. 281 REFERENCES................................................................................................. 293

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Acknowledgements I have been fortunate to receive significant support and assistance from outstanding people as well as institutions during the last several years that I have spent working on this book. I could not have completed this without the grant The Role of the Principle of Mutual Recognition and Institutional Morality in Justifying and (Re)Distributing of Human Rights, funded by the Polish Ministry of Science and Higher Education (2010–2012). The project was initiated by my fruitful scientific cooperation with Bartosz Wojciechowski and later on with Marek Zirk-Sadowski. This inspiring cooperation resulted in several jointly organised international conferences, co-written articles and (co-)edited volumes. Therefore, I thank all involved in the project heartily for the years of collaboration. The above scientific cooperation evolved and resulted in the establishment of the Center for the Theory and Philosophy of Law (CENHER) at the University of Lodz. On this occasion, special thanks go to the two of the members of its Scientific Board José Manuel Aroso Linhares and Georg Lohmann, with whom I had many interesting, inspiring discussions held in a very friendly atmosphere. I am also indebted to many people who made important contributions to crystallizing my standpoint on the problem of the democratic legitimation of law, in particular in regard to the European Union, or who helped me in my research in organisational terms. I am particularly grateful to Tadeusz Buksiński, the former Director of the Department of Philosophy, and Ewa Nowak, the Head Chair of Ethics and the Research and Development Deputy Director of the Department of Philosophy of Adam Mickiewicz University, Poznań, who significantly and vigorously supported my research. The current Director of the Department of Philosophy, Roman Kubicki, undoubtedly also deserves acknowledgement for his support during the final steps of preparing this manuscript. Crucially, I developed my ideas by discussing diverse issues with Manuel Jiménez Redondo, Gerhard Seel and Georg Lind, and I hope to engage in more discussions with them in the near future. As a member of the Center for Public Policy (CPP AMU), directed by Marek Kwiek, I was also able to participate in the 7th Framework Programme (Marie Curie Initial Training Network (2009–2013)) EduWel—Education as Welfare. Enhancing opportunities for socially vulnerable youth in Europe, directed by Hans-Uwe Otto. That was a great opportunity to meet wonderful people and engaging scientists from all over the Europe, who are focused on the capabilities approach-based outlook on education. In that regard, I derived tremendous philosophical pleasure and

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inspiration in discussing the relationships between education and diverse forms of recognition with Isabell Diehem. However, I owe much in particular to Elaine Unterhalter, who dedicated a lot of her time to me and granted me research access to all the benefits of the Institute of Education, University of London, in the academic year 2012–2013. That time truly quenched my scientific thirst, and I hope to be granted that access again in the near future, counting on her openness and understanding of my countless questions and issues to discuss. Elaine also kindly assisted me with determining the final version of the title of this book. I would also like to express my special and honest appreciation to those who read previous versions of this book and made comments or remarks—you had, let me say, nerves of steel. Here, I am referring foremost to Piotr W. Juchacz, whom I asked several times for a careful reading and profound discussion of certain parts of the book, and with whom I had tough—quoting Jürgen Habermas in The Inclusion of the Other, on his scientific relationship with John Rawls—‘family quarrels’, during which Piotr’s sympathies lay with Rawls, particularly as regards the constitution or constitutional essentials, and mine with Habermas. Furthermore, I am truly grateful to Marta Soniewicka for reading the whole book and making very careful, precise and wise comments, especially regarding Chapter I. She worked incredibly hard and helped me a lot. My warm thanks also go to Michał Cichoracki, who read the book-in-progress not once but twice, and vigorously debated with me on certain issues. Most importantly to me, Michał kept telling me that what I had written made sense and mattered, and that I should not look back—that often kept me alive, so to speak. I would also like to thank Marek Kwiek, whose short and sharp but right comments jarred me from ‘thinking my own thoughts’ and pushed me to make some important changes in the book. In addition, Ewa Nowak supported not only me but all of us from the Chair of Ethics, teaching us what fruitful scientific cooperation actually means for research. And she was right. So, I would like to thank Ewa, not only as a ‘Head’ but also as a friend, and sincerely acknowledge my colleagues and friends from the Chair of Ethics: Anna Malitowska, Piotr Makowski, Mateusz Bonecki and the relative newcomer Małgorzata Bogaczyk-Vormayr, for the positive atmosphere at work, the stimulating discussions, the real mutual understanding and all the projects we have done together and are eager to do together in the near future. However, the greatest and most unspeakable debt I owe to my family. Academic obligations and research in particular are intellectually and emotionally exhausting, and they absorb, and sometimes even steal, a lot of time and attention. And the time is most precious, because we are the time itself. It was due to their unconditional and unrestricted love, their uncompromising belief that whatever

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I do or say matters and deserves all possible forms of assistance, and all the little and big sacrifices that they had to make that this was possible and meaningful. For all this, I would like to wholeheartedly thank my grandma Aniela Dombrowska, my mum Elżbieta, who encouraged my philosophical aspirations, my sister and best friend Izabela, who, as an artist, has the best insights into our souls, and to her fiancé Teo, who is undoubtedly a part of our family. But the member of my family who bore the greatest burden of my research, day by day, was Piti. His daily care and emotional as well as organisational support were immeasurable and cannot be overestimated. His giant, creative and demanding philosophical imagination, integrated with his elevated intellectual expectations of me, is what makes him special. In other words, Piti is simply the best! Warm appreciation for the emotional support and care also go to my father Tomasz and his wife Grażyna. The inspiration for the title of my book comes from the normative concept of the constitution as presented by John Erik Fossum and Augustín José Menéndez in The Constitution’s Gift. A Constitutional Theory for a Democratic European Union. The book naturally evolved from previously published articles; therefore, I drew passages and ideas from them, to which I give credit in the bibliography. However, Chapter II, The Idea of Self-Constitutionalisation and Constitutional Patriotism, is adapted by permission of the Publishers from “On the Constructivist Premise of Constitutional Patriotism as a Normative Idea”, forthcoming in Towards Recognition of Minority Groups: Legal and Communication Strategies, eds. Marek Zirk-Sadowski, Bartosz Wojciechowski and Karolina M. Cern (Farnham: Ashgate, 2014).  The book was written directly in English, though I am not a native English speaker. This was possible due to the assistance and hard work of my editor, to whom I am also very thankful.

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INTRODUCTION Modern law requires democratic legitimation, but developing this in post-conventional terms rests on the presumption of increasing the processes of incrementally rationalising lifeworlds. In other words, the requirement of democratic legitimation associated with modern law is tailored for well-educated citizens. This presents one of the greatest challenges that democratic polities face in the twenty-first century, namely, how to guarantee equal opportunities to realise equal rights for democratic education and hence for participation in constructing self-reflexive societies1. Thus, the chief concern of this book is to discuss a democratic legitimation for modern law. I attempt to explore the problem following primarily Jürgen Habermas, in the sense that I understand this issue in terms of the co-originality of the rule of law and the principium of popular sovereignty. That directs my investigations towards current debates with regard to processes of European integration which raise issues concerning the self-constitutionalisation of a democratic polity and the concept of the self-reflexive polity2. The concept of self-constitutionalisation refers basically to processes and procedures of legitimating, enacting and applying fundamental principles, that is, basic rights (constitutional norms), and other provisions by those who are both the authors and addressees of these legal regulations. Self-reflexivity refers to a discursive learning which is a transformative and thus open-ended process of self-determination of the consonants of the democratic polity which therefore involves questions concerning the self-understanding of the consonants constituted by this process. 1

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Anthony Giddens, Turbulent and Mighty Continent. What Future for Europe?, Polity Press, Cambridge 2014, p. 96: ‘The empowerment of users and decentralisation of decision-making must be on the agenda. These processes should be sharply distinguished from privatisation as such. The fostering of human and social capital is, or should become, a key part of welfare systems. Educational reform, stretching from early years schooling right through to higher education and lifelong learning, hence becomes fundamental. (…) The social investment state [that the concept of which Giddens introduces in his book and opts for] therefore has to be much more interventionist than the classical welfare state was’. John Erik Fossum, “Nationalism, Patriotism and Diversity–Conceptualizing the National Dimension in Neil MacCormick’s Post-sovereign Constellation”, in: Augustín José Menéndez, John Erik Fossum (eds.), Law and Democracy in Neil MacCormick’s Legal and Political Theory. The Post-Sovereign Constellation, Springer, Law and Philosophy Library, Volume 93, Dordrecht, Heidelberg, London, New York, 2011, p. 268.

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My principal thesis, which I discuss in the course of this book, is that the selfconstitutionalisation of a democratic polity presumes its origins both in the rule of law and in popular sovereignty, that is, the co-originality which is expressed in the statement that ‘personal autonomy (…) is the sum of both the private protective rights and public participatory right’3. This then unveils itself as a complex concept referring to the threefold constitutionalisation: legal, institutional and horizontal. In other words, the concept of the self-constitutionalisation of the democratic polity refers to processes of evolutionary constitution making4, institutional constitutionalisation and horizontal (societal) constitutionalisation. Furthermore, I contend that modern democratic societies face a certain reflexive turn. This means that self-determination constitutes the very heart of self-understanding (be it individual or collective). Only when one presumes this turn does it become clear that the concept of self-constitutionalisation is a complex concept that is also concerned with societal (horizontal) relations. Thus, self-constitutionalisation proceeds through an open-ended, discursive examination of issues which entail both the individual and collective identities. This turn, in my view, provides a response to the question as to how it is possible that ‘the motivational force of reasons, namely, that the insight into good reasons, has behavioural consequences’5. The legal system operates only through complex institutional settings, where, due to appropriate procedures and processes of legitimation as well as application, it undergoes self-reflexive changes which are supposed to respond to claims expressing democratic credentials. In this context, these democratic credentials refer to two normative criteria: first, inclusiveness, and second, the discursiveness of institutional functioning6. Thus, I contend that the self-reflexivity of the

3 4 5 6

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John Erik Fossum, “Constitution-making in the European Union”, in: Erik Oddvar Eriksen, John Erik Fossum (eds.), Democracy in the European Union. Integration through deliberation?, Routledge, London and New York 2002, p. 120. John Erik Fossum, Augustín José Menéndez, The Constitution’s Gift. A Constitutional Theory for a Democratic European Union, Rowman & Littlefield Publishers, Inc., Lanham, Maryland, 2011, pp. 41–42. Erik O. Eriksen, „Reflexive integration in Europe”, in: Erik Oddvar Eriksen (ed.), Making the European Polity. Reflexive Integration in the EU, Routledge, London, New York, 2005, p. 16. Tanja Hitzel-Cassagnes, „Are We Beyond Sovereignty? The Sovereignty of Process and Democratic Legitimacy of the European Union”, in: Augustín José Menéndez, John Erik Fossum (eds.), Law and Democracy in Neil MacCormick’s Legal and Political Philosophy, The Post-Sovereign Constellation, Springer, Law and Philosophy Library, Volume 93, Dordrecht, Heidelberg, London, New York, 2011, pp. 150–151.

legal system is generated within ‘institutional intersections’, that is, diverse public consultations designed appropriately for a triple division of power which comes to fruition for the addressees of law through the transformation from opinion formation into will formation. In this approach, these addressees of law must always also be authors of the law. Crucially, in my view, the demands of the discursive and inclusive character of these institutional intersections may be met only if they simultaneously also enhance the increase of the processes of the incremental rationalisation of lifeworlds that enable the emergence of a self-reflexive culture. The discursive ethos of self-reflexive cultures socialises citizens to carry out discursive problem-solving, engagement with common and general values as well as a search for abstract political ideals which provide a justification for common action norms. Hence, the processes of self-constitutionalisation may proceed at the legal level of constitution making then, and only then, when the processes of horizontal constitutionalisation proceeding in lifeworlds as well at the level of cultures have already been launched. Thus, it follows that the central concept of this theory is, in fact, the normative concept of the public sphere founding the ‘twotrack model’ of deliberative democracy7 characterised by an upward (legal constitutionalisation) and downward (horizontal constitutionalisation) flow of opinions within the communicative structures. Therefore, it may be stated in reference to the European Union, as a distinct and specific polity, that it continues to establish rather than preserve the claim, ‘Without a public sphere, no democracy!’8 With that in mind, in Chapter I, I introduce the basic concepts and notions related to the mutual connections between the concept of law and the public sphere. I do so by discussing three contemporary approaches to law that stem from three diverse legal traditions. These are law as integrity, the proceduralist paradigm of law and the post-positivist legal pluralism, respectively argued by Ronald Dworkin, Jürgen Habermas and Sir Neil MacCormick. I develop my analyses following the conviction articulated by Ronald Dworkin that the conceptualisation of law should be conceived of in terms of its temporal aspect9. 7

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Patrizia Nanz, Europolis. Constitutional patriotism beyond the nation-state, Manchester University Press, Manchester, New York, 2006, p. 35 and p. 39. See also Sarah Sorial, “Habermas, Feminism, and Law: Beyond Equality and Difference?”, Ratio Juris, Vol. 24, No. 1, 2011 (pp. 25–48), here p. 38. Erik Oddvar Eriksen, John Erik Fossum (eds.), “Conclusion: legitimation through deliberation”, in: Erik Oddvar Eriksen, John Erik Fossum (eds.), Democracy in the European Union. Integration through deliberation?, Routledge, London, New York, 2002, p. 266. Ronald Dworkin, Law’s Empire, The Belknap Press of Harvard University Press, Cambridge, Massachusetts, London, England, 1986, pp. 94–100.

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First, I investigate Dworkin’s monological meta-construction of the present, presuming that he is especially interested in the problem of the stability of law. The conceptualisation of that stability shall take into account the issue of protecting the legal system against its constant and, consequently, contingent transformations, if the political community, to which it is tailored and is supposed to serve, is to respond to the modern, normative political claims, especially the claims to justice. However, at the same time, the system of law shall do justice to these great modern normative demands in democratic societies. My thesis is that Dworkin makes a prominent shift in comprehending the normative system of law, because he lifts its concept to a stage of publicly recognised principles of political morality as well as legal rights justifying the whole body of law with regard to the said normative demands. In addition, the integrated system of recognised principles, as justifying arguments for legal rights, constitutes the very reason why the model of a community of principle, advocated by Dworkin, articulates a deontological understanding of legal rights as trumps over the arguments from policy. Constitutional Justices, in this line of argumentation, unveil themselves to be guardians of the deontological reading of the body of law, due to the interpretations of law that they provide, which must be argumentative, though never deliberative, because they are always only theoretic-monological. Habermas agrees with Dworkin on the deontological interpretation of constitutional principles, that is, basic rights. Nevertheless, he polemicizes with Dworkin on at least two crucial points, notably, whether legal rights (or basic rights, as Habermas refers to them) are indeed foremost a means against a government and, in consequence, whether the interpretations of basic rights should be reposed in the hands of those who constitute the best educated and most responsible group of citizens (as argues Dworkin10), that is, in the hands of constitutional judges. Therefore, in my next step, I indicate the most significant implications of Habermas’s co-originality thesis (of the rule of law and of the principle of popular sovereignty). These implications, I argue, first, change the perspective from which fundamental rights (basic rights) may be considered, because at stake is the fact that there is no longer an elaboration and assurance of the legal means to be exercised, if needed, against the government, but above all, there is at stake the establishment of the horizontal relations of mutual recognition among free and equal

10 Ronald Dworkin, Justice for Hedgehogs, The Belknap Press of Harvard University Press, Cambridge, Massachusetts, 2011, pp. 142–143.

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citizens as co-partners in the political enterprise11. Second, this entails the idea of the right to participate ‘in the public debate over the justification of norms’12. This idea underpins the new paradigm of law that aims at a formal-legal equality that does justice to the recognition of the social inequalities that suppress the exercise of ‘equally distributed liberties’13 without leaning towards state paternalism but rather, quite the contrary, giving the addresses of law back their voice as those affected. Third, as the requirement of public debates over the justification of norms unveils the specific, normative conception of the public sphere as the very heart of this paradigm of law, it simultaneously uncovers the very precondition of any legitimate self-constitutionalisation of a democratic polity, namely, the horizontal (societal) constitutionalisation, that is, the increasing processes of incrementally rationalising lifeworlds. In other words, Habermas shifts from the argumentative yet monological approach to modern law, as proposed by Dworkin, towards the discursive approach that explicitly underscores the normative role of the public sphere in the processes of its democratic legitimation and emphasises that this approach recalls the future-oriented comprehension of the political community. The investigation of the most paramount changes that have been introduced to the contemporary comprehension of modern law could not be completed, however, without discussing MacCormick’s proposal in that domain. In short, since Dworkin shifts that comprehension from the level of legal rules towards the principles of political morality and, justified by them, fundamental rights (constitutional rights), Habermas is able to root the legitimation of such a way of understanding law within the concept of the public sphere, enabling MacCormick to de-couple modern law from the concept of the state. His apparently ‘innocent’ distinction between a normative order, an institutional normative order and an institutional order14 exceeds the narrow, state-oriented thinking of 11 Jürgen Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg, The MIT Press, Cambridge, Massachusetts, 1999, pp. 250–251. 12 Jacques Lenoble, “Law and Undecidability”, in: Michael Rosenfeld, Andrew Arato (eds.), Habermas on Law and Democracy. Critical Exchanges, University of California Press, Berkeley Los Angeles London 1998, p. 42. 13 Jürgen Habermas, “Paradigms of Law”, in: Michael Rosenfeld, Andrew Arato (eds.), Habermas on Law and Democracy. Critical Exchanges, University of California Press, Berkeley, Los Angeles, London, 1998, p. 20. 14 Compare Neil MacCormick, Questioning Sovereignty. Law, State, and Nation in the European Commonwealth, Oxford University Press, Oxford, New York, 2001; Neil

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law and thus the conceptualisation of the legal system. Crucially, he liberates, so to say, thinking of law in terms of a legal order, or, more precisely, in terms of ‘a set of law-making and law-applying institutions and associated practices and attitudes, which, in a mutually reinforcing way, ensure the systemic quality of that normative order’15. It is in this shift, which is elegant in its simplicity, that MacCormick founds the idea of legal pluralism16. In addition, the analysis of the one of MacCormick’s best known claims, that we, basically, ‘by nature [are] norm-users’17, complemented by the statement that ‘as moral agents (…) we more resemble (…) judges’ than legislators18, unveils that in his conception, the power of judgement, not the law-giving power, plays the crucial role. This is precisely the power of judgement that in the course of the institutionalisation of a normative order, in fact, becomes institutionalised. I contend that MacCormick was the first to acknowledge that what is characteristic of modern law is not full-fledged consensus but rather balancing reasons oriented at maintaining and sustaining the ‘defeasible universality’19 or, rather, reasonable disagreement. With that in mind, I argue that what must be set free and further enforced and entrenched, at least with regard to the EU and Union law, is the public power of judgement. Moreover, the public power of judgement, as the complementary moment of the public use of reason, which is, on its part, lawgiving, may be exercised only in the public sphere, in particular, in the institutional intersections that I discuss more in-depth in Chapter IV. In the closing paragraphs of the first chapter, I briefly recapitulate the analysis and compare the standpoints of the three great thinkers. Then, drawing on Massimo La Torre20, I sum up in eight points the change of the paradigms of law that stems from the former analyses and characterises the legal culture, at least

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16 17 18 19 20

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MacCormick, Institutions of Law. An Essay in Legal Theory, Oxford University Press, Oxford, New York, 2008. Neil Walker, “The Cosmopolitan Local”, in: Augustín José Menéndez, John Erik Fossum (eds.), Law and Democracy in Neil MacCormick’s Legal and Political Philosophy. The Post-Sovereign Constellation, Springer, Law and Philosophy Library, Volume 93, Dordrecht, Heidelberg, London, New York, 2011, p. 8. Neil MacCormick, Questioning Sovereignty, op. cit., Chapters 7 and 8. Neil MacCormick, Institutions of Law, op. cit., p. 245. Neil MacCormick, Rhetoric and the Rule of Law. A Theory of Legal Reasoning, Oxford University Press, Oxford, New York, 2005, pp. 4, 19, 57–68. Ibidem, p. 94. Massimo La Torre, Constitutionalism and Legal Reasoning, Springer, Dordrecht, The Netherlands, 2007.

of the EU, that is basically related to the breakdown of the elementary positivistic assumptions concerning the conceptualisation of the legal system. The crucial conclusions, however, concern my claim that the changed comprehension of the legal system—as the principles-based, interpretative and foremost tailored for the public discursive justifications system—entails the necessity for introducing on a large scale the democratic education of all citizens for the sake of entrenching their real power and discursive public participation in the legal-political processes of law-making and law-application. The post-conventional model of the legal system, as remaining in constant need of ongoing justification on the part of its addressees, who are always also its authors, presumes neither a concept of a rational agent nor a rational choice theory. Rather, this model presumes the increasing processes of the incremental rationalisation of lifeworlds that cannot proceed and ‘make a leap towards’ the political and economic elite- and law-driven processes of Europeanization without educational support oriented at entrenching each citizen’s competence for realising the rationality potentials in discourse, and thus oriented at enforcing each citizen’s competence for exercising communicative freedom and mutual respect for it. That claim is crucial and decisive, because without citizens who understand themselves as (at least also) Eurocitizens and who, as Eurocitizens, would act in the diverse publics, there is no democratically legitimised European law. Introducing the concepts of post-sovereign (MacCormick) and post-national (Habermas) constellation that characterise the EU on one hand, and introducing the statement that its processes of integration are driven foremost by law and are complemented by the New Public Management reforms21 that make the EU an unsettled polity22 on the other hand, I turn in Chapter II towards an in-depth analysis of the idea of constitutional patriotism as formulated by Jürgen Habermas. The main theme here is to examine whether, and to what extent, positive law may be regarded, in the case of the EU, as ‘a means of social integration, indeed, as a medium that sustains the self-understanding of a solidary community, albeit in a

21 Johan P. Olsen, Europe in Search of Political Order. An institutional perspective on unity/diversity, citizens/their helpers, democratic design/historical drift and the co-existence of orders, Oxford University Press, Oxford, New York, 2007. 22 Johan P. Olsen, Governing Through Institution Building. Institutional Theory and Recent European Experiments in democratic Organization, Oxford University Press, Oxford, New York, 2010, pp. 9, 81; Neil Walker, “The place of European law”, in: Gráine de Búrca, J. H. H. Weiler (eds.), The Worlds of European Constitutionalism, Cambridge University Press, Cambridge, New York, 2012, p. 58.

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highly abstract form’23. I discuss the institutionalisation of discourse rule (D) in the medium of law, from which stems the principium of democracy, and therefore I analyse the comparison between political self-legislation and moral self-legislation24 as founded on the autonomy of will. I argue that the idea of self-lawgiving reconciled with the idea of democracy leads to the idea of self-constitutionalisation by the citizenry, to which constitutional patriotism refers. In the next step, I extensively discuss, presented by Habermas in the article ‘Constitutional Democracy. A Paradoxical Union of Contradictory Principles?’, the boat metaphor and its readings. I analyse the constructive premise of the idea of constitutional patriotism with regard to the deontological reading of the constitution that Habermas argues for, and with regard to the political morality that mediates between constitutional culture and political culture, which I bring out from his investigations due to his distinction between moral norms and ethical values as interests. I introduce the triple time-mode structure of the same standards of the constitutional interpretations as a constitutional learning process25 that is never-ending, open-ended26 and thus always incomplete, as founded on a constitutional culture that reveals itself as a search for reasonable disagreement, rather than one for full-fledged consensus27. In that regard, the same normative project of self-constitutionalisation, for which the idea of constitutional patriotism constructs reasons for attachment, unveils the universal principles as those which are supposed to meet political ideals in public debates—that is, it unveils the role of the practical power of judgement transferred from the concept of a (monological) subject to the (dialogical-discursive) public spheres. The public use of reason reveals an inextricable dependence on the practical power of judgement that operates in public discourse, transforming citizens’

23 Jürgen Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg, The MIT Press, Cambridge, Massachusetts, 1999, p. 223. 24 Jürgen Habermas, “Constitutional Democracy. A Paradoxical Union of Contradictory Principles?”, Political Theory, Vol. 29 No. 6, December 2001 (pp. 766–781), here pp. 778–779. 25 Bonnie Honig, “Dead Rights, Live Futures: A Reply to Habermas’s ‘Constitutional Democracy’”, Political Theory, Vol. 29, No. 6, December (pp. 792–805), here p. 797. 26 Ciaran Cronin, “On the Possibility of a Democratic Constitutional Founding: Habermas and Michelman in Dialogue”, Ratio Juris, Vol. 19, No. 3 September 2006 (pp. 343–69), here p. 357. 27 Jan-Werner Müller, Constitutional Patriotism, Princeton University Press, Princeton, Oxford, 2007, p. 57.

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opinions into the political will of the citizenry as the sovereign. Crucially, the transformative power unleashed in discourse supports the normative understanding of the constitution and renders it ‘a tradition-building process’28 due to the concept of constructivist interpretation that Habermas and Dworkin share. It results that as the understanding of the tradition becomes comprehended as the future-oriented project, the self-understanding of each polity (including national identities) becomes open to future (re)interpretations based on the same normative—universal-principles oriented—project. The idea of constitutional patriotism provides a normative framework for understanding processes of Europeanization. Within this framework, the processes of integration by law are revealed as the medium through which come to light complex processes of reshaping national identities on one hand, and cooperative constructions of universalisable normative claims (the basic rights of Eurocitizens) on the other; in other words, these are interactions between the common European constitutional culture and the Member States’ constitutional culture29. The tensions caused by the interactions between them may facilitate the strengthening of the role of the public sphere in terms of its intense influence on the processes of decision-making and, at the same time, trigger the increase of the processes of incrementally rationalising lifeworlds. Therefore, in my view, the idea of constitutional patriotism, as formulated by Jürgen Habermas, is neither to be understood in terms of ‘legal patriotism’30 nor ‘national patriotism’. Rather, it binds the emancipatory force of a (cosmopolitan) civic perspective with a constitutional debate. The idea of constitutional patriotism accentuates the conjunction of the processes of legitimate law-making and processes of transformation from opinion- into will-formation. In other words, I claim that constitutional patriotism stresses the conjunction between the public use of reason (constitution making and/or interpreting) and the public power of judgement (transformation from opinion- into will-formation). In Chapter III, I more closely investigate crucial assumptions made by Habermas in the course of advocating for the idea of constitutional patriotism, and 28 Jürgen Habermas, “Constitutional Democracy…”, op. cit., p. 774. 29 Compare Marek Zirk-Sadowski, “Flexible normative space between the European law and the Member State law as a source of constitutional identity”, in Marek ZirkSadowski, Bartosz Wojciechowski, Karolina M. Cern (eds.), Towards Recognition of Minority Groups: Legal and Communication Strategies, Ashgate, Farnham, 2014. 30 Paul Magnette, “How can one be European? Reflections on the Pillars of European Civic Identity”, European Law Journal, Vol. 13, No. 5, September 2007 (pp. 664–679), here p. 673.

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I analyse whether, in light of these assumptions, this idea seems viable, that is, what horizontal constitutionalisation in fact means for ordinary citizens. As such, I first investigate Habermas’s understanding of values, of the relationship between values and interests, between values and norms, between value enhancement and the concept of authenticity or an ethical life as correlated with (the presumption of) the societal development at the post-conventional stage. Second, drawing on these investigations, I discuss the so-called political turn towards culture through an analysis of the term democratic ethos and the concepts of communicative/deliberative freedom performance and discursive participation in the public sphere, as well as the discursive exit from public debates, eventually polemicizing with Per Mouritsen31 on the role and meaning of the idea of constitutional patriotism for the everyday life of citizens. My thesis is that the reconstruction of Habermas’s understanding of values, as distinct from norms, shall embark on the analysis of dramaturgical action (and its claims to truthfulness and beauty) and the ‘partiality of desires and feelings’32 as well as ‘the experience of human plurality’33 that underpin this kind of action, and, eventually, on the specific justification of the said ‘partiality of desires and feelings’, that is, intersubjective transparency. Further analysis unveils the dependence of this kind of justification on the specific concept of tradition that supports the transparency of evaluations as recalling shared needs. The point of reference for this transparency of evaluations is everyday conduct, so the evaluations may strongly motivate action taking. If values, that is, the standard interpretations of needs, are embedded in norms, then norms strongly motivate action taking, because they are justified by the transparency of evaluations. Quite the contrary, norms, which point to the rightness (as a specific validity claim), when considered at the post-conventional level, are in need of justification, although qua reasons. Thus, in order to justify a normative judgement, one must take a hypothetical attitude which calls for reasons. In my view, that turns normative judgement into counterfactual judgement. Consequently, normative judgements—formulated at the post-conventional level of 31 Per Mouritsen, “Political Responses to Cultural Conflict”, in: Per Mouritsen, Knud Erik Jørgensen (eds.), Constituting Communities. Political Solutions to Cultural Conflict, Palgrave Macmillan, Houndmills, Basingstoke, New York, 2008. 32 Jürgen Habermas, The Theory of Communicative Action, Volume I, Reason and the Rationalization of Society, trans. by Thomas McCarthy, Beacon Press, Boston, 1984, p. 92. 33 Seyla Benhabib, Critique, Norm and Utopia. A Study of the Formulation of Critical Theory, Columbia University Press, New York, 1986, p. 244.

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a common norms understanding—no longer embody values and instead become counterfactual judgements. Such norms are constructed because their direct references to specific values disappear. Moreover, such norms unfold themselves as moral ones because (i) taking the perspective of the other (Mead) that aims at (ii) meeting the requirement of the impartiality of the normative judgements (Kant) is supposed to be contained in the procedure of norms formulation. Therefore, the problem of justifying norms moves towards the legitimation of the legal system, in which processes of ‘value enhancement’ are expressed. The legal system as a whole must deal with the processes of differentiating values, of enhancing them, and their conflicts or competition should be consensually dissolved by each individual, who is free and equal to any other34, that is, by individuals who may always also obey the law for the recognition of its normative validity claims35; otherwise—paradoxically—their needs would become deprived of the (intersubjective recognition of their) meaning. This issue is very important, because it makes Habermas acknowledge that the problem of law legitimation should always also be related to the problem of socialisation in democratic societies, which forms the Hegelian heritage in Habermasian thought. According to this approach, an assumption that communicative freedom is tightly interwoven with processes of rationalising lifeworlds is pertinent—its power depends on ‘the extent to which the rationality potentials built into communicative action and released in discourse penetrate lifeworld structures and set them aflow’36. In my view, the communicative freedom released in discourses turns the project of self-understanding into a normative undertaking of its interpretative foundations, but also for the sake of autonomous self-determination by all its participants37. In other words, that turn gives birth to a discursive ethos. Paradoxically, then, in the aftermath of the increase of the incremental processes of rationalising lifeworlds, which is characteristic of pluralistic societies, selfdetermination (either individual or collective) is uncovered as the crux of self-understanding. The said turn moves in two directions: it examines the formalprocedural conditions under which communicative (or discursive) freedom operates and, at the same time, offers emancipation from any forms of oppression that would stymie the free choice of elements (meanings, concepts, cultural resources, structures of references and so forth) with which one forms beliefs about one’s 34 35 36 37

Jürgen Habermas, The Theory of Communicative Action, op. cit., pp. 260–261. Ibidem, p. 261. Jürgen Habermas, Between Facts and Norms, op. cit., p. 98. Compare ibidem, pp. 97–98.

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interests as well as well-being (be it material, intellectual, symbolic or otherwise), or beliefs about one’s capabilities and social position (which refer to identifying what is out of actual reach for someone and why, though from the moral point of view, the claim to its availability seems well justified). I analyse this turn, and I contend that it is strongly related to education; that is, it liberates the choice (and/or refusal) of possible factors that would affect identity formation. It emerges here as processes of emancipation from constraints, as that which cannot be freely recognised by an individual as pertaining either to his/her individual project or to the collective one38. According to the democratic ethos’ intrinsic critical nerve, the matter is that it should also put a critical eye on ‘the underlying social conditions that hinder and facilitate the emergence of effective types of political agency’39. Democratic ethos, as such, must be conceived of as discursive freedom performance, critical attitude taking and the exercise of the power of judgement that lead towards ‘the distinction between moral and ethical questions [that] maintains the priority of justice over the good’40. This takes place in processes of discursively (anew) reaching an agreement on issues previously having been brought to light in debates. Thus, this turn opens all spheres of life to public debate in order to detect any forms of injustice on one hand, and to liberate these spheres from those forms through their deliberative resetting on the other hand. Given the significance of the discursive participation in the public spheres that comes at the fore in Chapter III, I contend in Chapter IV that Habermas’s theory of deliberative democracy makes a relevant contribution to contractarian conceptions and, importantly, situates these conceptions at the post-conventional stage. This means that ground-breaking changes are introduced into the theoretical scheme of contractarian thought; for example, instead of a hypothetical state of nature, Habermas elaborates a hypothetical attitude of the participants in actual discourses that take place in the real world. Instead of laws of nature, there are two principles in constant action in these discourses: the principle of discourse (D) and the argumentative principle of universalisation (U). Eventually, due to the claim that ‘the 38 Compare Erik Oddvar Eriksen, Jarle Weigård, Understanding Habermas. Communicating Action and Deliberative Democracy, Continuum, New York, London, 2003, p. 426. 39 Lois McNay, “Feminism and Post-Identity Politics: The Problem of Agency”, Constellations, Vol. 17, No. 4, 2010 (pp. 512–525), here pp. 514–515. 40 Jürgen Habermas, “Reply to Symposium Participants, Benjamin N. Cardozo School of Law”, in: Michael Rosenfeld, Andrew Arato (eds.), Habermas on Law and Democracy. Critical Exchanges, University of California Press, Berkeley, Los Angeles, London, 1998, p. 388.

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logic of justice questions becomes dynamic’41, the social contract is understood in terms of the ongoing processes of self-constitutionalisation that also socialise citizens and, as such, exceed national borders and take over the role of a pure act (of a constitution enactment) undertaken by the citizens of a particular polity. In its essence, the consent uttered in a constitution (that is, in the ongoing practice of ‘constitution founding’42) unveils itself to stem from agreements made in, as I call them, institutional intersections and in processes of horizontal constitutionalisation. That is why, on this approach, consent is viewed as a process to be legitimised in public procedures of the ongoing legitimation of the law. Therefore, interestingly, it may be stated that on this approach, not particular citizens but subjectless publics (first, communicatively; second, procedurally organised) are the ‘subjects’ of the ongoing utterance of consent43. I analyse more in-depth the differences between communicative action and discourse, due to the main claim made by Habermas that his theory of deliberative democracy stems from the institutionalisation of the principle of discourse (D), later on complemented by the principle of argumentation (U) ‘as a bridging principle that makes agreement in moral argumentation possible’44. First, I claim that for Habermas, two moments—leaving the pre-political state and leaving the pre-social state (of nature)—must come hand in hand, and this seems to be the second reading of the co-originality thesis expressed in the code of law-making, with the first reading which I present in Chapter II. Political individualisation, in other words, may proceed only in the way of socialisation, which seems to be a lesson from Hegel, albeit, in my opinion, initiated by Hobbes45. Second, as the processes of saturating the legal code in the normative substance proceed, so do the interpretations of universalisable normative claims always come into play. These interpretations of universalisable normative claims, at the level of the constitution of a certain democratic polity, are called basic rights. Taking 41 Ibidem. 42 Jürgen Habermas, “Postscript to Between Facts and Norms“, in: Mathieu Deflen (ed.), Habermas, Modernity and Law, SAGE Publications, London, Thousand Oaks, California, New Delhi, 1996, pp. 140–141. 43 Jürgen Habermas, “Reply to Symposium Participants, Benjamin N. Cardozo School of Law”, op. cit., pp. 391–392. 44 Jürgen Habermas, Moral Consciousness and Communicative Action, trans. Christian Lenhardt, Shierry Weber Nicholsen, The MIT Press, Cambridge, Massachusetts, 1999, p. 57. 45 Therefore, Habermas cannot agree on the role of basic rights prescribed by Dworkin— they cannot be the only and simply a means against a government.

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this for granted, Habermas concludes that ‘human rights institutionalize the communicative conditions for a reasonable will-formation’46. The institutionalisation of the discourse rules must protect both the private and public autonomy, due to the co-originality thesis. Therefore, paradoxically, in comparison with the former proposals on how to understand human rights, Habermas claims that only those rights that always also protect the democratic conditions of the saturation of these rights in their normative content may be appropriately called human rights. Human rights are supposed to express such norms whereby the impartiality of the judgments and decisions based on such rights is never overruled by the collectivity (that is, the collective self-understanding or collective interests), from which follows the requirement of protecting each citizen as free and equal to any other. Third, Habermas, as a contemporary post-metaphysical contractarian thinker, does not presume any concept of a rational agent (here, citizen) or theory of rational choice; he presumes instead, due to the very presumptions of rationality potentials being released in discourses, the increasing processes of the incremental rationalisation of lifeworlds. I explain in what sense and to what extent these processes raise the expectation of the specific moral-democratic competencies of |citizens, concerning procedures for the generalisation of interests and values as well as the abstraction and construction of counterfactual norms, that is, procedures that crucially aim at taking ‘a decentred understanding of the world’47. Fourth, the ongoing justification of law at the post-conventional level, which refers to the procedures for the generalisation of interests and values as well as the abstraction and construction of counterfactual norms, recalls the public power of judgement. Thus, the normative conception of the public sphere must also imply the institutional constitutionalisation48 that forms the democratic heart of both the legal and horizontal constitutionalisations. The concept of institutional constitutionalisation refers, then, to such institutional settings that enable transformations from opinion- to will-formation.

46 Jürgen Habermas, The Postnational Constellation. Political Essays, trans. Max Pensky, The MIT Press, Cambridge, Massachusetts, 2001, p. 117. 47 Jürgen Habermas, Moral Consciousness and Communicative Action, op. cit., p. 138. Jürgen Habermas, “Reply to Symposium Participants, Benjamin N. Cardozo School of Law”, op. cit., pp. 386–387. 48 Compare Tanja Hitzel-Cassagnes, “Discursive Processes in the European Institutional System”, in: John Erik Fossum, Philip Schlesinger, Geir Ove Kværk (eds.), Public Sphere and Civil Society? Transformations of the European Union, ARENA Report No 2/07.

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In order to discuss such transformations from opinion- to will-formation in a well-grounded way and from the normative point of view, one must realise that they require, as I name them, specific intersections between these two tracks of communicative action. By this, I mean that the institutional intersections are those institutional arrangements which express the empowerment of citizens in the sense that they establish their ability to ‘do things’ in the political public sphere and also be the addressees of public concerns49, and this issue forms the main theme of the two-track model of deliberative democracy. In other words, as Massimo La Torre claims, ‘constitution (…) also means the self-understanding of community members and their practice of self-institution, that is of instituting themselves as citizens’50, because in the context of the co-originality thesis that refers to a constitutional democracy taking into normative account the rule of law as well as the principle of popular sovereignty, ‘constitution in short is the bedrock of legal order, not of the State’51. I analyse these institutional intersections due to the concept of ‘the composite character of democratic legitimacy’ formulated by Augustín José Menéndez52 and ‘two sets of normative criteria’ in which, in the view of Tanja Hitzel-Cassagnes, ‘legitimate processes of justification (…) have to meet’53. Interestingly, meeting the said normative requirements on the part of the composite character of democratic legitimacy results in understanding law as law in the making. In other words, taking citizens seriously on fair and equal terms results in changing the paradigm of law, at least with regard to the EU, and acknowledging that the law of a democratic constitutional polity is essentially in the making, as it expresses the will of the discussion within the democratic polity54. Furthermore, to make true these claims that are characteristic of a constitutional democracy, it is necessary to focus both investigations and institutional engagement on the legalpolitical institutions questioning the normative principles that they actually meet, in order to enable institutional intersections, as the very heart of the two-track model of deliberative democracy. Hence, this is both a theoretical and a practical challenge. 49 Compare Josiah Ober, „The Original meaning of ‘Democracy’: Capacity to Do Things, not Majority Rule”, Constellations, Volume 15, No 1, 2008 (pp. 3–9). 50 Massimo La Torre, Constitutionalism and Legal Reasoning, op. cit., p. 6. 51 Ibidem, p. 33. 52 Augustín José Menéndez, “The European Democratic Challenge: The Forging of Supranational ‘Volonté Générale’”, European Law Journal, Vol. 15, No. 3, May 2008 (pp. 277–308), here p. 283ff. 53 Tanja Hitzel-Cassagnes, „Are We Beyond Sovereignty? The Sovereignty of Process and Democratic Legitimacy of the European Union”, op. cit., pp. 150–151. 54 Massimo La Torre, Constitutionalism and Legal Reasoning, op. cit., p. 77.

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For me, it is undeniable that the idea of interpreting basic rights, grounded in the discourse ethics, as always—here and now—the best interpretations of universalisable normative claims (that is, human rights) necessarily exceeds the concept of a national polity. Undoubtedly, this idea is directed at shaping a kind of constructivist, inclusive community based on the introduced three normative conceptions of constitutionalisation, namely, legal, institutional and horizontal. Therein, the collective efforts oriented at elaborating the best interpretations of human rights come hand in hand with—meeting the democratic requirements—the public constructions of justifications for political decisions, and horizontal constitutionalisation that bears fruit in transnational solidarity relations. And this is the next great change introduced into the contractarian paradigm, however Kantian in spirit. It is about apprehending the current global-international situation in terms of the state of nature, without limiting the application of the term to any state-national situation. This postulate, nevertheless, makes sense and may be comprehended as a useful theoretical device suitable for changing the global political and legal situations if and only if adopting a moral point of view—transgressing broadly lifeworlds’ particular perspectives—is possible. The problems discussed in Chapter IV seem to take the EU as the most visible or even paradigmatic polity at stake. Thus, in the fifth and final chapter, I consider the significance of ‘soft constitutionalism meeting soft pluralism somewhere in the middle’55 with regard to the internal and external dimensions of the EU’s processes of constitutionalisation. I endorse the theory of the constitutional synthesis and particularly the concept of the constitution in a normative sense, as presented by John Erik Fossum and Augustín José Menéndez56; however, I make some critical remarks on its certain premises. Having agreed that the problem of the European constitution remains best seen in dynamic terms, and thus the more the normative synthesis proceeds, the deeper and wider the demand for democratic credentials becomes, I claim that the understanding of the sources of the common European constitutional law undergoes a reinterpretation as well. This seems to be visible in the ECJ’s ruling in Kücükdeveci57 concerning the interpretation of the principle of non-discrimination on the grounds of directive 2000/78, in which the source of the

55 Gráinne de Búrca, “The ECJ and the international legal order: a re-evaluation”, in: Gráine de Búrca, J. H. H. Weiler (eds.), The Worlds of European Constitutionalism, Cambridge University Press, Cambridge, New York, 2012, p. 281. 56 John Erik Fossum, Augustín José Menéndez, The Constitution’s Gift, op. cit. 57 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62007J0555:EN:H TML.

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European law invokes the sources of national constitutional laws, which I analyse in greater depth. With regard to the external dimension of the EU, I argue that the EU is not only a polity ‘in-between’, as stated by Neil Walker58, but principally should remain the polity ‘in-between’ if it is to meet the democratic ‘nature’ which is ‘to be unfinished and in the process of becoming rather than static’59. Accordingly, I contend that the same applies to the European law viewed as undergoing processes of democratic constitutionalisation: the more self-constitutionalisation of the said law proceeds, the more dialogical should be its position in the external dimension, notably in the global field of international constitutional law. Having presumed this, I return to the Habermasian standpoint on the Kantian idea of a world republic and critically examine it, holding on to the notion that the significance of public autonomy and political individual rights cannot be overestimated in the global dimension, and, although we should follow this path unwaveringly, we should embark on global institutional intersections that, due to the two-track model of deliberative democracy, constitute the heart of processes of legal constitutionalisation and horizontal constitutionalisation, that is, that may contribute to the increase of the processes of the incremental rationalisation of lifeworlds. This, however, requires support, understood as democratic education. When there is no democratic education, there is no democratic legitimation of modern law.

58 Neil Walker, “The place of European law”, in: Gráine de Búrca, J. H. H. Weiler (eds.), The Worlds of European Constitutionalism, Cambridge University Press, Cambridge, New York, 2012, pp. 90, 98. 59 Johan P. Olsen, Governing Through Institution Building, op. cit., p. 138.

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CHAPTER I Taking Citizens Seriously. Questioning the Time Modes of Legal Enterprise 1. Introduction to the Problematics At the turn of the twentieth century, vital questions arose in the arenas of philosophical and legal investigations concerning the relations between the domains of law and morality. The impulses behind this animated research were of different sorts. On one hand, the industrial revolution caused significant changes in the market economy as well as in societal relations, launching the expansion, diversification and complication of social and political structures; furthermore, all of these changes visibly contributed to launching various emancipatory movements of social and even national provenance. These phenomena bore fruit in the need for new or revised questioning of the sources, foundations, breadth and scope of social control that would sustain the coordination of social processes on fair and just terms. On the other hand, these phenomena themselves became part of processes discerned and depicted by Max Weber as processes of occidental rationalisation at the levels of the society, culture and subjective structures1. In this context, and particularly important for the social sphere, these processes may be regarded as ‘forming and singling out a capitalistic market and a modern state’2. Further, the latter became governed in a new bureaucratic manner; in other words, a shift occurred towards a government driven by objective criteria, rather than forcing subjective decisions made by office-holders. In addition to the capitalistic market and the modern state administrative government, the third important factor of this occidental rationalisation was a positive law that started to function ‘as an instrument organizing the capitalistic market, the modern state and relations between them’3.

1

2 3

Max Weber, Gospodarka i społeczeństwo. Zarys socjologii rozumiejącej, trans. D. Lachowska, PWN, Warszawa 2002, Jürgen Habermas, The Theory of Communicative Action, Volume I, Reason and the Rationalization of Society, trans. Thomas McCarthy, Beacon Press, Boston, 1984. Jürgen Habermas, The Theory of Communicative Action, op. cit., pp. 158–159. Ibidem, p. 159.

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In this vein, Marek Zirk-Sadowski argues that there are three important premises to be taken into account when we consider the phenomenon of the emergence of modern law. First, ‘an emergence of the bureaucratic state apparatus (…) started to play a key role in determining the make-up of law, which became an element of running a society’4. This was the important background against which the German philosophy of law was developed, because, according to Massimo La Torre, the ‘rule of law (Rechtasstaat) in the German public law means paradigmatically administrative jurisdiction. Democracy (…), constitution in a strong sense (…) and fundamental rights disappear from the province of law. Fundamental rights [in this very context] are suggestively replaced by “public subjective rights” actionable not before ordinary judges, but exclusively in front of administrative courts (…)’5. As the second constituent of the emergence of modern law, especially important for continental Europe, Zirk-Sadowski indicates, was ‘singling out a notional apparatus of a jurisprudence with regard to the reception of a notional apparatus of Roman law’6; this describes the specific formal-dogmatic method that contributed to the emergence of legal positivism7. The integral part of this paradigm formed a thesis on the normative separation between morality and law8 due to the societal origins of the latter which many legal philosophers have recognised. Or more precisely, long before this, when legal positivism was in its infancy, the foundation of that paradigm was laid on the theoretical presumption that the law derives from the sovereign’s command9 or at least may be characterised by its own specific normative logic, of which the actual norm-production was strictly related to a state. Thus, as Neil MacCormick argues with reference to Kelsen, ‘the state simply is the

4 5 6 7 8

9

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Marek Zirk-Sadowski, Wprowadzenie do filozofii prawa [Introduction to the Philosophy of Law], Zakamycze, Kraków, 2000, pp. 174–175. Massimo La Torre, Constitutionalism and Legal Reasoning, Springer, Dordrecht, 2007, p. 22. Marek Zirk-Sadowski, Wprowadzenie do filozofii prawa, op. cit., p. 177. Ibidem, p. 175. The very sense of this separation thesis, as Alexy neatly writes, is as follows: ‘there is no necessary connection between the law as it is and the law as it ought to be’; Robert Alexy, On the Concept of Law and the Nature of Law/O pojęciu i naturze prawa, Wykład im. Leona Petrażyckiego, Fundacja „Ius et Lex”, Warszawa, 2006, p. 36. John Austin, The Province of Jurisprudence Determined, Weidenfeld and Nicolson, London, 1954.

territorial legal order personified’10. Conceived as above, this form of positivism may be named ‘original or hard legal positivism’11. Generally, as one may see, the guiding idea of legal positivism was to set free the state apparatus and its means of social control from the social control itself, or rather, to ‘liberate’ the law, in the sense of making it autonomous when confronted with social, cultural and/or religious values. Then the conceptualisation of modern law redirected its objectives towards the effective realisation of social goals12. At the same time, it aimed at reorienting the source of legal-political legitimation; that is, it introduced a shift in the employment of the terms under which the source was conceivable from the supranational terms, which were still present in the writings of many influential thinkers subscribing to the tradition of natural law, towards more secular, or more state-related or state-embracing, terms. Although the methodological and ontological autonomy of law (or, more precisely, the claim to the jurisprudential autonomy) is not exclusive to legal positivism13, it

10 Neil MacCormick, Questioning Sovereignty. Law, State, and Nation in the European Commonwealth, Oxford University Press, Oxford, New York, 2001, p. 21; see Chapter 2 “The State and the Law”, ibidem. Ulrich Preuss distinguishes three traditions of law, drawing on the concepts of contractarianism proposed by Hobbes, Locke and Rousseau— respectively, (i) ‘the law as a sovereign command’, (ii) ‘the law as reasonable mediator’, and (iii) ‘the law as the expression of a collective identity’— and argues that on their basis were founded, respectively, (i) ‘the Prussian-German preconstitutional state of nineteenth century’, (ii) ‘the American model of the constitutional state’ and (iii) ‘the French model of the democratic republic’, Ulrich K. Preuss, “Communicative Power and the Concept of Law”, in: Michael Rosenfeld, Andrew Arato (eds.), Habermas on Law and Democracy. Critical Exchanges, University of California Press, Berkeley, Los Angeles, London, 1998, p. 325. In this context it is worth to remember that young John Austin spent several years in Germany preparing himself for taking a position of legal law professor at the University of London. 11 Marek Zirk-Sadowski, Wprowadzenie do filozofii prawa, op. cit., p. 182. 12 Ibidem, p. 175. Preuss succinctly and aptly describes this issue as follows: ‘since modern law is predominantly positive law, lawmaking has become the business of specialized agencies (…) that have increasingly used lawmaking more as an instrument of social steering and engineering. (…) The law become a tool for managing very different problems in very different social areas. As a consequence, legal problems have become problems that can be understood and resolved only by experts’, Ulrich K. Preuss, “Communicative Power and the Concept of Law”, op. cit., pp. 325–326. 13 Jerzy Stelmach, Bartosz Brożek, Metody prawnicze, Wolters Kluwer, Kraków, 2006, pp. 23–29, particularly pp. 27–29.

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remains conceptually strongly associated with this approach, which was influential throughout the twentieth century. Especially important to the further development of legal positivism was a discussion held in German scientific circles, Naturrechtsdiskussion. Jerzy Stelmach and Bartosz Brożek frame this as follows: ‘The Nazi regime revealed, in view of many German philosophers and theorists, the bankruptcy of the positivistic vision of law’14, which assumed ‘subordination to law regardless of its matter’15. As a result, the insistence on an unambiguous conceptual or definitional distinction between morality and law became highly embarrassing16. In the aftermath of this debate, argues Robert Alexy, ‘the German Federal Supreme Court as well as the Federal Constitutional Court pursued a non-positivistic line. The jurisprudential core of their reasoning is Radbruch’s formula. (…) It says that “the positive law”, secured by legislation and power, takes precedence even when its content is unjust and fails to benefit the people, unless the conflict between statute and justice reaches an intolerable degree that the statute, as “flawed law”, must yield to justice’17.

2. Context of Investigations Chief among the attempts oriented at defending legal positivism after the Second World War was, of course, that of Herbert L. A. Hart, in his famous The Concept of Law. Alluding to the Oxford School, namely, to the philosophy of language of George Edward Moore, and more clearly to the late Ludwig Wittgenstein and his conception of language games, Hart put forward almost ab novo the question of what the law is, that is, what the concept of law is in fact. Elucidating the

14 Ibidem, p. 29. 15 Jan Woleński, Wstęp. Harta pojęcie prawa [Introduction. Hart’s concept of law], in: H. L. A. Hart, Pojęcie prawa [The Concept of Law], trans. J. Woleński, PWN, Warszawa, 1998, p. XIV. 16 On the current legal positivism see: Jerzy Stelmach, Bartosz Brożek, Metody prawnicze, op. cit., pp. 271–272. 17 Robert Alexy, On the Concept of Law and the Nature of Law/O pojęciu i naturze prawa, op. cit., p. 32. It comes here about BGHZ 16 (Decisions of the Federal Supreme Court in Civil Matters, vol. 16) (1955), 350, At 354, and BVerfGE 23 (Decisions of the Constitutional Court of the Federal Republic of Germany, vol. 23) (1968), 98, at 106, ibidem.

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legal rules—and rules basically—in comparison to game rules18, he stated that the primary rules, and ‘parasitic’ on them the secondary rules of law19, from which the most important is the rule of recognition, are constituted in practice and through the practice of judicature20. In other words, his intention was to demonstrate that the law consists of rules, and as a result, although it is possible to indicate factual cases of mutually overlapping legal rules and moral rules (as Hart named them)21, still, ‘there is nothing which can be profitably singled out for study as the relation between them’22. Hart’s conception raised another storm of debates around the law, its nature, its concept, the role of legal practice for the comprehension of law and, especially, the significance of the practice of judicature that cast a figure replacing that of the sovereign expressing his will or command. Then, the problem of the relations between law and morality shifted from questioning the prerequisites of the sovereign will or command to questioning the best (model of) justification of a ruling and what such a justification model would mean. Thus, interestingly, it can be depicted as the first tacit move towards decoupling the law from the state and breaking the positivist template—even if came at the price of the ‘cosmopolitanisation of jurisdiction’ or ‘judicial globalism’23.

18 Compare H. L. A. Hart, The Concept of Law, 2nd edition, Clarendon Press, Oxford, 1994, pp. 109–110. 19 Ibidem, pp. 80–81; ‘[The secondary rules are] on a different level from the primary rules, for they are all about such rules; in the sense that while primary rules are concerned with the actions that individuals must or must not do, these secondary rules are all concerned with the primary rules themselves. They specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined’; p. 94 And the secondary rules are the rule of recognition, rules of change and rules of adjudication; pp. 94–97. 20 ‘Existence [of the rule of recognition], unlike that of statute, must consist in an actual practice. (…) The case for calling the rule of recognition “law” is that the rule providing criteria for the identification of other rules of the system may well be thought a defining feature of a legal system; and so itself worth calling “law”; the case for calling it “fact” is that to assert that such a rule exists is needed to make an external statement of an actual fact concerning the matter in which the rules of an “efficacious” system are identified’; ibidem, pp. 111–112. 21 Ibidem, pp. 192–193. 22 Ibidem, p. 185. 23 Tanja Hitzel-Cassagnes, “Are We Beyond Sovereignty? The Sovereignty of Process and Democratic Legitimacy of the European Union”, in: Augustín José Menéndez, John Erik Fossum (eds.), Law and Democracy in Neil MacCormick’s Legal and

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Thus, it must be highlighted here that the process by which the discussion developed on the rules and principles as the basic elements of the system of law that, in fact, casts judges as (or allows them to pretend to be) ‘legal kings’ or ‘kingsphilosophers’ in the political domain, as Dworkin seems to imagine, provides valuable insights into the socioeconomic as well as political transformations that the world is currently undergoing—be it processes of globalization par excellence or regional transformations, such as processes of Europeanization. In that regard, the basic problems that one must face may be framed, in general, as follows: who is the addressee of the law and who is its author; whether there is any place for kings in the legal domain or equality prevails; whether the law originates from a command, from a ruling or from arguments or arguments considered in discourse; whether the law is met with agreement or disagreement; and eventually, whether the (dis/)agreement is just former, actual or, alas, merely in principle.

3. The First Road: Dworkin’s Monological Meta-Construction of the Present Ronald Dworkin acknowledges that in the rapidly changing world, the problem of understanding the law and, more importantly, its conceptualisation should be conceived of in terms of its temporal aspect24. As he reasonably states on this matter, ‘the assumption that the most general point of law, if it has one at all, is to establish a justifying connection between past political decisions and present coercion shows the old debate about law and morals in a new light’25. This new light unfolds the vision of the future as a bone of contention26. On the other hand,

Political Philosophy, The Post-Sovereign Constellation, Springer, Law and Philosophy Library, Volume 93, Dordrecht, 2011, p. 139. 24 Ronald Dworkin, Law’s Empire, The Belknap Press of Harvard University Press, Cambridge, Massachusetts, London, England, 1986, pp. 94–100; and precisely in this context, Dworkin examines his conception of law as integrity. 25 Ibidem, p. 98. 26 Between law as integrity and legal pragmatism that is utilitarian in spirit; ibidem, pp. 94–96, 160. Ronald Dworkin, Justice in Robes, The Belknap Press of Harvard University Press, Cambridge, Massachusetts, London, 2006, p. 21. Compare Jürgen Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg, The MIT Press, Cambridge, Massachusetts, 1999, p. 201.

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drawing on John Rawls’s theory27, and thus paying heed to the liberal normative claims focused on political justice, the raising of which has been characteristic of modern Western societies since the end of the twentieth century, and which the theory of law should necessarily take into account28, Dworkin is especially interested in the stability of law29. In my view, this stability of law unfolds as the crux of his theory in legal philosophy and explains his tough opposition to value pluralism30. Importantly, he expresses awareness that the conceptualisation of the stability of the modern legal system cannot be equivocated with its rigidity; otherwise the system of law would not respond to the abovementioned current normative problems, which it, nevertheless, should be able to do in Dworkin’s view. Therefore, he aptly acknowledges that a matter of principles is more relevant with regard to the issue of the stability of law than anything else; or, the other way round, as Dworkin argues, ‘the crucial stability in any case is that of integrity: the system of rights must be interpreted, so far as possible, as expressing a coherent vision of justice’31. The conceptualisation of that stability shall protect the legal system against the constant and, in consequence, contingent transformations of it, if the political community, for which it is tailored and is supposed to serve, is to respond to the modern, normative political claims, especially the claims to justice; however, at the same time, the system of law shall do justice to these great modern normative demands in democratic societies32. Therefore, the crucial issue of the stability of law, comprehended in terms of its integrity, unfolds as investigations oriented towards ‘a norm of unification called forth

27 But for Dworkin’s considerations in political philosophy, basically The Theory of Justice matters, not Political Liberalism nor the later writings of Rawls on the fact of value pluralism. 28 On this raising claims to justice that the legal system in the USA was expected to answer in the second half of the last century, writes Rebecca L. Brown, “How Constitutional Theory Found its Soul: The Contributions of Ronald Dworkin”, in: Scott Hersovitz (ed.), Exploring Law’s Empire: The Jurisprudence of Ronald Dworkin, Oxford University Press, New York, 2006. See also Ronald Dworkin, Justice in Robes, op. cit., p. 212. 29 “Argument from Stability as an Argument from Political Morality”; Ronald Dworkin, Law’s Empire, op. cit., pp. 366–367. 30 Consider his polemics with Isaiah Berlin’s view in Ronald Dworkin, Justice in Robes, op. cit., pp. 105–116, 159–162. 31 Ronald Dworkin, Law’s Empire, op. cit., p. 368. 32 Compare ibidem, p. 97.

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by a more fundamental social unity’ that ‘gives expression to the important deep assumption of the unity of community’33. As one may see, Dworkin attends to the issue of legal stability by articulating the necessity of taking into account the ideal of the political integrity of a political community34. Accordingly, he conceives of law as integrity that ‘combine[s] backward- and forward-looking elements’35, because ‘it begins in the present and pursues the past only so far as and in the way its contemporary focus dictates’36. Thus, the conception of law as integrity, in fact, renders the concept of law a political concept37, but one that is understood in terms of ‘the aspirational concept of law’38. The very sense of this move rests on coupling the rule of law—viewed as ‘the rights conception’ in opposition to the ‘rule-book conception’39—with the ideal of political integrity, from what follows that the consistency of the legal system conceived of legal rules cannot trump the demand for political integrity based on a coherent vision of justice40. As Gerald J. Postema accurately points out, ‘the 33 Gerald J. Postema, “Integrity: Justice in Workclothes”, in: Justine Burly (ed.), Dworkin and His Critics with Replies by Dworkin, Blackwell Publishing, Padstow, Cornwall, 2005, p. 294. 34 Ronald Dworkin, Law’s Empire, op. cit., p. 134; he argues that ‘a state that accepts integrity as a political ideal has a better case for a legitimacy than one that does not’, ibidem, pp. 191–192. 35 Ibidem, p. 226. 36 Ibidem, p. 227. 37 Ronald Dworkin, A Matter of Principle, Harvard University Press, Cambridge, Massachusetts, London, England, 1985, p. 160; Ronald Dworkin, Justice in Robes, op. cit., p. 162. 38 Ronald Dworkin, Justice in Robes, op. cit., p. 13. Ronald Dworkin, A Matter of Principle, op. cit., 146. 39 Ronald Dworkin, A Matter of Principle, op. cit., see chapter “Political Judges and the Rule of Law”. See also Massimo La Torre, Constitutionalism and Legal Reasoning, op. cit., pp. 77–79. 40 Dworkin states this in such a way that one may sense a little bit of acerbity of his words directed towards ‘classic’ visions of law; Ronald Dworkin, Law’s Empire, op. cit., p.167: ‘integrity rather than some superstition of elegance is the life of law as we know it’. In this context, Jeremy Waldron asks whether in Dworkin ‘a commitment to the rule of law represent[s] at least in part a belief that public power should be exercised in a particular way, rather than just any way that offers the morally best outcomes’ (Jeremy Waldron, “The Rule of Law as a Theater of Debate”, in: Justine Burly (ed.), Dworkin and His Critics with Replies by Dworkin, Blackwell Publishing, Padstow, Cornwall, 2005, p. 321), and he seems to be convinced that the Dworkinian understanding of the rule of law is inextricably proceduralist and thus takes over

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concept of justice gives shape and direction to integrity’s quest for principled unity of the community’s past and present’41. Therefore, in fact, the Dworkinian remedy against the rapid transformations of a legal system which responds to social, political and economic demands is the conception of law under construction by the judges who lead it to the normative purity of its principles42. Crucially, then, Dworkin makes a prominent shift in comprehending the normative system of law due to ‘the constructive side of his argument’43; that is, he levels its concept on a stage of principles as well as legal rights justifying the legal system as a whole44 with regard to the said normative demands focused on matters of justice and related to the dynamics of social, political and economic changes within the political community. In other words, Dworkin turns ‘the legal background’45 into the very heart of law, which I consider to be one of his most

41 42

43 44

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the ‘objective’ outcome, that is, a reading of an integrated set of principles as an underpinning of the one concept of justice. Nevertheless, not surprisingly for me, Dworkin himself is not interested at all in abandoning his vision of the ‘objective’ set of principles that starts to emerge in his writings, and for this very reason, he holds onto the claim of the great significance of the ‘objective outcomes’ for which it would be unthinkable to appear to not be doing justice to the proceduralist view on the rule of law; Ronald Dworkin, “Ronald Dworkin Replies”, in: Justine Burly (ed.), Dworkin and His Critics with Replies by Dworkin, op. cit., p. 388. Gerald J. Postema, “Integrity: Justice in Workclothes”, op. cit., p. 295. Ronald Dworkin, A Matter of Principle, op. cit., p. 16: ‘For the ideal of adjudication, under the rights model, is that, so far as is practicable, the moral rights that citizens actually have should be available to them in court. So a decision that takes background rights into account will be superior, from the point of view of that ideal, to a decision that instead speculates on, for example, what the legislation would have done if it had done anything’. Jeremy Waldron, “Did Dworkin Ever Answer the Crits?”, op. cit., p. 156. Ronald Dworkin, Taking Rights Seriously, Harvard University Press, Cambridge, Massachusetts, 1978, p. 28: ‘(…) Principles play an essential part in arguments supporting judgments about particular legal rights and obligations’; moreover, ‘unless at least some principles are acknowledged to be binding upon judges, requiring them as a set to reach particular decisions, then no rules, or very few rules, can be said to be binding upon them either’; ibidem, p. 37. Crucially, however, ‘arguments of principle are arguments intended to establish an individual right; (…) principles are propositions that describe rights’; ibidem, p. 90. Ronald Dworkin, A Matter of Principle, op. cit., pp. 2–3. And finally, ‘Law as integrity (…) holds that people have as legal rights whatever rights are sponsored by the principles that provide the best justification of legal practice as a whole’, Ronald Dworkin, Law’s Empire, op. cit., p. 152. Jeremy Waldron, “Did Dworkin Ever Answer the Crits?”, op. cit., pp. 155, 156.

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significant contributions to the philosophy and theory of law46. For this reason, although he claims—not always very clearly—that the law shall not be understood solely as the rules of law but also as principles47, he admits that the predictability of law may be seconded48 when the theoretical justification of the whole body of law comes into play (as a necessary moment of judicial justification in hard cases49). This entails that the integrity of the principles50 justifying legal rights is crucial for this theoretical justification responding to the question of what the law is. Hence, he emphasises in Law’s Empire that integrity ‘commands horizontal rather than vertical consistency of principle across the range of the legal standards the community now enforces. It insists that law (…) contains not only the narrow explicit content of these decisions but also, more broadly, the scheme of principles necessary to justify them’51. Dworkin’s statement, in Taking Rights Seriously, that principles are numberless and change quickly52 may be confusing in this context; however, if we look closer at what matters for Dworkin, then it appears that he intends to set aside contingent moral claims in favour of the principles of political morality that he simultaneously elaborates in his books with the appropriate method for interpreting them53. 46 Adrás Sajó, “Constitutional Adjudication in Light of Discourse Theory”, in: Michael Rosenfeld, Andrew Arato (eds.), Habermas on Law and Democracy. Critical Exchanges, University of California Press, Berkeley, Los Angeles, London, 1998, pp. 360–361: ‘Apparently, constitutional adjudication is inclined to transfer even constitutional rules into principles, thereby increasing the degree of freedom of constitutional adjudication. The transition to principles feeds the accusation of uncontrolled judicial activism’. 47 Ronald Dworkin, Taking Rights Seriously, op. cit., p. 344. 48 For Dworkin, the predictability of law matters basically for the political decisionmaking and also for the process of law-making. However, the point is that in the case of the judicial decision-making, much more prominent is the fairness than mere predictability; in other words, predictability should follow the fairness of judicial judgements; Ronald Dworkin, Law’s Empire, op. cit., pp. 140–144. 49 After all, judicial decisions in hard cases should be consistent with established principles; Ronald Dworkin, Taking Rights Seriously, op. cit., p. 116. 50 As Dale Smith notes, ‘coherence in principle (…) Dworkin often equates with integrity’, Dale Smith, “Many Faces of Political Integrity”, in: Scott Hersovitz (ed.), Exploring Law’s Empire: The Jurisprudence of Ronald Dworkin, Oxford University Press, New York, 2006, p. 143. 51 Ronald Dworkin, Law’s Empire, op. cit., p. 227. 52 Ronald Dworkin, Taking Rights Seriously, op. cit., pp. 25, 44. 53 Ibidem, p. 343: ‘The process of “drawing” principles from institutional history is the process of judging justifications of that history, where justification is distinguished from explanation’; thus, the formulation of principles is by no means contingent, and the

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Moreover, in A Matter of Principle, while investigating the meaning of the so-called original intention and its subject, he explicitly writes that the commitment to the Constitution ‘presupposes a priori commitment to certain principles of political justice which, if we are to act responsibly, must therefore be reflected in the way constitution is read and enforced’54, and thus what ‘makes the document law, it can only be because we accept principles of political morality having that consequence’55. Taking it all for granted, the statement declaring that there are plenty of principles gives way to the claim that there is a forum (or a ‘set’ or ‘scheme’) of quite publicly recognised principles56 that ‘have currency in the community in question’57, and the main idea is to keep on working them out and demonstrating them to be non-contradictory ones and, in this very sense, as a ‘consistent’ or rather integrated forum of principles that underpin, to recall Postema once more, a unified concept of justice58. Therefore, with regard to this view, Joseph Raz seems to assert that it expresses ‘a strong monistic coherence’59, with which I agree. This makes the following claim: ‘to distinguish between two kinds of consistency a lawmaker might seek: consistency in strategy and consistency in principle’60. This is especially important because the consistency in principles wins the former61. Further, on this approach, Raz seems to hit the point

54 55 56 57 58 59

60 61

phrase that there are ‘numberless’ and rapidly changing principles is rather rhetorical and, unfortunately, may be confusing. Ronald Dworkin, A Matter of Principle, op. cit., p. 35. Ibidem, p. 36. Ronald Dworkin, Taking Rights Seriously, op. cit., p. 347. Ibidem, p. 344. Gerald J. Postema, “Integrity: Justice in Workclothes”, op. cit., p. 296. Joseph Raz, “Speaking with One Voice: On Dworkinian Integrity and Coherence”, in: Justine Burly (ed.), Dworkin and His Critics with Replies by Dworkin, op. cit., p. 285. Dworkin refuses that his view is monistic, but if we impose a purpose on his early writings as on an object of interpretation, in order to make it the best possible, then it seems, at least to me, that it is the best justified claim. Moreover, it seems to me that this is the same reason why James E. Fleming argues for ‘a dualist constitutional democracy’ that takes also or simultaneously into account the basic liberties argued for on the grounds of deliberative democracy; James E. Fleming, “The Place of History and Philosophy in the Moral Reading”, in: Scott Hersovitz (ed.), Exploring Law’s Empire: The Jurisprudence of Ronald Dworkin, Oxford University Press, New York, 2006, p. 29. Ronald Dworkin, Law’s Empire, op. cit., p. 132. Ibidem, p. 134.

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when states that ‘Dworkin does not regard coherence (…) as virtue [of law] at all’62. The concept of integrity, in fact, is ‘narrower than consistency’, and thus it concerns ‘principle and does not require any simple form of consistency in policy’63. Nevertheless, one may still ask why the normative system is comprehended not only in terms of legal rights but also in terms of principles. The underlying reason for Dworkin seems to be that ‘legal rights may pre-exist any form of legislation’64, although some of them are ‘very important claims, [and yet] are not demonstrable’65. However, there may be pre-existing legal rights only when there are arguments in favour of them66. This means that the legal rights may pre-exist the legislation only when there are principles in favour of them which are recognised in a certain political community67, because ‘arguments of principles are 62 Joseph Raz, “Speaking with One Voice: On Dworkinian Integrity and Coherence”, op. cit., p. 288. 63 Ronald Dworkin, Law’s Empire, op. cit., p. 221. See also Ronald Dworkin, A Matter of Principle, op. cit., p. 17. 64 Ronald Dworkin, Taking Rights Seriously, op. cit., p. XI. Ronald Dworkin, Justice for Hedgehogs, The Belknap Press of Harvard University Press, Cambridge, Massachusetts, 2011, pp. 405–406: ‘It is then necessary to distinguish two classes of political rights and duties. [1] Legislative rights are rights that the community’s lawmaking powers be exercised in a certain way (…). [2] Legal rights are those that people are entitled to enforce on demand, without any further legislative intervention, in adjudicative institutions that direct the executive power of sheriff or police’; square brackets added by KMC. 65 Ronald Dworkin, Taking Rights Seriously, op. cit., p. XIV. 66 Ibidem, p. 365: ‘No one has a political right (…) unless the reasons for giving him what he asks are stronger than some collective justification that normally provides a full political justification for a decision’. 67 Smith makes an apt remark that a ‘recognizable principle of justice’ is not a clear idea (Dale Smith, “Many Faces of Political Integrity”, op. cit., p. 153), and it is not clear either whether and to what extent it is supported by the whole practice of judicial interpretation, such as in the specific terms with which it would be differentiated from the rule of recognition that would simply and exclusively refer to the principles underpinning the whole legal system. However, that is not all. Menéndez explicates the sense in which Kelsen and Hart’s presumption of the tight bonds between the legal system and the state prompts them to see that not citizens as addressees of law but ‘legislatures and judges were decisive in the process of defining Kelsen’s internal point of view, both in leading the process of identification of the contents of the Grundnorm (the historical constitution to which it pointed), and of Hart’s socially-backed rule of recognition (defined by reference to the social practice of judges)’; Augustín José Menéndez, “From Constitutional Pluralism to a Pluralistic Constitution? Constitutional Synthesis as a MacCormickian Constitutional Theory of European Integration”, in: Augustín

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rights-based’68, in the sense that legal rights ‘are sponsored by the principles that provide the best justifications of legal practice as a whole’69. Therefore, it may be stated that when Dworkin refers to the concept of integrity, he refers, in fact, to the integrity of legal rights and principles70 justifying the identification and understanding of these legal rights and, only in consequence, legal rules71. Legal rules are only binding if there are (i) principles that justify them and legal rights that endorse them, but (crucially, as it runs in conjunction with this) (ii) in light of the institutional history (of legislation and adjudication), their significance (the legal enforcement) is entirely seconded when compared with political principles and legal rights72 operating as their justifications (as arguments in favour

68 69 70

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José Menéndez, John Erik Fossum (eds.), Law and Democracy in Neil MacCormick’s Legal and Political Philosophy, The Post-Sovereign Constellation, Springer, Law and Philosophy Library, Volume 93, Dordrecht, 2011, p. 216. From this, it does not follow that Dworkin was a positivist, though he drew much more than he admits from this stream of Continental legal philosophy that he criticised, but simply that the above difference is not settled in clear terms, and it seems that the conception of the judges’ community may shed some promising light on the difference between the chain process of judges’ interpretations and the simple rule of recognition; compare Marek ZirkSadowski, “Interpretation of Law and Judges Communities”, International Journal for the Semiotics of Law, Vol. 25, No. 4, 2012 (pp. 473–487). Nevertheless, the question posed by Rasmussen—of the ‘ideal of an open society of interpreters of the constitution’—must rest for Habermas’ response; David M. Rasmussen, “How is valid law possible? A review of Between Facts and Norms by Jürgen Habermas”, in: Mathieu Deflen (ed.), Habermas, Modernity and Law, SAGE Publications, London, Thousand Oaks, New Delhi, 1996, p. 35. Ronald Dworkin, A Matter of Principle, op. cit., p. 3. Ronald Dworkin, Law’s Emipre, op. cit., p. 152. A principle is ‘a standard that is to be observed, not because it will advance or secure an economic, political, or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality’; Ronald Dworkin, Taking Rights Seriously, op. cit., p. 22. Hence, as principles operate in the mode of justifying legal propositions, they ‘do not set out legal consequences’ automatically (ibidem, p. 25). Ronald Dworkin, Justice in Robes, op. cit., p. 51: ‘We justify legal claims by showing that principles that support those claims also offer the best justification of more general practice in the doctrinal areas in which the case arises’. Therefore, as Jeremy Waldron rightly emphasises, principles ‘are also capable of standing against foreground law’; Jeremy Waldron, “Did Dworkin Ever Answer the Crits?”, op. cit., p. 158. Ronald Dworkin, Justice in Robes, op. cit., p. 56: ‘The theory-embedded view (…) is an account of legal reasoning—of how we properly argue toward claims about what the law is’; in other words, formulating the answer to the question of what the law

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of their legal enforcement). I contend that this is the way one should understand the Dworkinian novelty—not just in terms of broadening the legal system with political principles but rather as turning the system into the concept of political principles oriented at one concept of justice and legal rights that utter this. This is also the reason why the model of a community of principle73 articulates a deontological understanding of legal rights74 as trumps ‘over the kind of trade-off argument that normally justifies political action’75, that is, over arguments from policy. Legal rights, understood by Dworkin as political rights, that is, rights against state coercion, therefore justify political decisions76. Interestingly, introducing morality into law, that is, introducing principles of political morality ‘embedded in institutional history’77 to a system of law for the sake of necessarily coupling the rule of law with the ideal of political integrity, was but the price which Dworkin decided to pay for being able to hold onto the stability of the legal system in a rapidly changing world. This was also in order to have a legal autoreview78—made by judges, because not legislature but ‘adjudication is characteristically a matter of principle’79—to protect the legal system, through proclaiming ‘the adjudicative principle of integrity as sovereign over law’80, that

73 74 75 76 77 78

79 80

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is may be done only by responding to the question of how we properly argue for or against the validity (enforcement) of legal propositions. There is no law when there is no argumentation-based justification. Ronald Dworkin, Law’s Empire, op. cit., pp. 211–214, 404. Ibidem, p. 213. Ronald Dworkin, Is Democracy Possible Here? Principles for a New Political Debate, Princeton University Press, Princeton, Oxford, 2006, p. 31. Ronald Dworkin, Justice for Hedgehogs, op. cit., p. 329. Ronald Dworkin, Is Democracy Possible Here?, op. cit., p. 96. Ronald Dworkin, Taking Rights Seriously, op. cit., p. 353. Ronald Dworkin, A Matter of Principle, op. cit., p. 70: ‘Judicial review insures that the most fundamental issues of political morality will finally be set out and debated as issues of principle and not political power alone, a transformation that cannot succeed, in any case not fully, within the legislature itself’. Ibidem, p. 3. Legislature may refer to other kinds of arguments as well; see Ronald Dworkin, Taking Rights Seriously, op. cit., p. 111, footnote 1. Ronald Dworkin, Law’s Empire, op. cit., p. 404. The claim is then that exclusively judges should control moral principles—otherwise, according to Dworkin, we must face the unbelievable situation that parliaments do so (that is, that they meet the requirement of fair decisions made by majorities); compare Stephen Breyer, “Introduction: The ‘International’ Constitutional Judge”, in: Scott Hershovitz (ed.), Exploring Law’s Empire: The Jurisprudence of Ronald Dworkin, Oxford University Press, New York, 2006, pp. 1–2.

is, for the assurance of the stability of legal order as well81. It seems that for Dworkin, this was, if not the only, then at least the most reasonable way to respond to issues of justice in legal terms and protect the equality of the addressees of law82. The assurance of the stability of law, and of the legal order as well, is for Dworkin a decisive aim in the construction of his theory, in my view. He presumes, at least at the beginning of his writing—and with regard to this very issue, the abovementioned turn from the philosophy of law towards political philosophy that he declares83 is evident—that ‘the law worked pure’84, or rather, due to John Gardner’s brilliant remark that the role of interpreter comes at the fore in 81 This very idea of a normative control aiming at the assurance of legal ‘stability’ as integrity over the changes to a legal system, and also over the legal order, is clearly expressed in the following words concerning the interpretative work of the exemplary judge Hercules: ‘Hercules interprets not just the statute’s text but its life, the process that begins before it becomes law and extends far beyond that moment. He aims to make the best he can of this continuing history, and his interpretation therefore changes as the story develops. He does not identify particular people as the exclusive “framers” of a statute and then attend only to their hopes or expectations or concrete convictions or statements or reactions’; Ronald Dworkin, Law’s Empire, op. cit., pp. 348–349. Previously, in A Matter of Principle, he states that ‘It is open for a lawyer to argue, as I have myself, that the impact of the statute on the law is determined by asking which interpretation, of the different interpretations admitted by the abstract meaning of the term, best advances the set of principles and policies that provides the best political justification for the statute at the time it was passed.’; ibidem, p. 129. 82 Ronald Dworkin, A Matter of Principle, op. cit., p. 165: ‘There can be no useful interpretation of what that clause means which is independent of some theory about what political equality is and how far equality is required by justice, and the history of the last half-century of constitutional law is largely an exploration of exactly these issues of political morality’. Ronald Dworkin, Taking Rights Seriously, op. cit., p. 227: ‘(…) The right to treatment as an equal is fundamental, and the right to equal treatment, derivative. In some circumstances the right to treatment as an equal will entail a right to equal treatment, but not, by any means, in all circumstances’. Ronald Dworkin, Justice in Robes, op. cit., p. 176: ‘This is political integrity, which means equality before the law, not merely in the sense that the law is enforced as written, but in the more consequential sense that government must govern under a set of principles in principle applicable to all’. 83 Ronald Dworkin, Justice for Hedgehogs, op. cit., p. 324. Dworkin confesses here that Life’s Dominion, Sovereign Virtue, Is Democracy Possible Here? and Justice for Hedgehogs form and contribute to the Dworkinian argumentative strategy on the political morality issue. It is the one cluster of ideas on the subject. 84 Ronald Dworkin, Law’s Empire, op. cit., p. 400.

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Dworkinian theory85, the interpretative process of working the law pure legitimises the legal system. It seems, then, that Dworkin draws some inspiration—quite surprisingly—from Hans Kelsen’s view on the normative source of law; however, instead of the Grundnorm founding the system of legal norms, he proclaims the law as integrity in terms of its aspirational concept, as ‘the law worked pure’. He considers ‘the law worked pure’ from all contingent interpretations of the body of law, and thus the law grounded in the integrated system of recognised principles, as justifying arguments for legal rights and taken together with those rights86; moreover, ‘the law worked pure’ is a matter of the future (re)construction of law towards which the present legal practice argumentatively moves87. Therefore, his conception pertains to a right-based constructivist model of political theory88. Yet once more it must be emphasised that under this very assumption, the shift consisting of incorporating the principles into the system of law, that is, the recognised principles of political morality, by no means signifies dissolving law in morality; quite the contrary, it was thought to assure the stability of law against such legally uncontrolled attempts. Arguably, the idea of working the law out pure led Dworkin to the incredibly philosophically inspiring insights in The Matter of Principle, namely, into the concept of normative interpretation that turns out to be constructive and to the conclusion that ‘the distinction between interpreting and inventing is itself the product of an interpretative judgement’89. A normative interpretation is an interpretation based on deontologically90 understood principles as justifying 85 John Gardner, “Law’s Aim in Law’s Empire”, in: Scott Hersovitz (ed.), Exploring Law’s Empire: The Jurisprudence of Ronald Dworkin, Oxford University Press, New York, 2006, p. 224. 86 Ronald Dworkin, Law’s Emipre, op. cit., p. 413: Thus, ‘the protestant character of law is confirmed’. 87 Thus, I do not agree with Gerald J. Postema, who advances a strong thesis that in Dworkin, ‘integrity rests on the assumption that the community’s past is normative for its present and future’, Gerald J. Postema, “Integrity: Justice in Workclothes”, op. cit., p. 298; emphasis added by KMC. Nonetheless, I do admit that the past plays a prominent role in establishing the procedures for recognising political principles that the adjudication should—according to Dworkin—apply. 88 Ronald Dworkin, Taking Rights Seriously, op. cit., pp. 171–177. 89 Ronald Dworkin, A Matter of Principle, op. cit., p. 168. Of course, from the very beginning, there is a kind of ambiguity in Dworkin’s thought, as he also emphasises that judges should not invent the institutional history but rather construct the best justifications of it by reflecting upon historical ‘data’; ibidem p. 160. 90 Renée M. Watkins-Bienz, Die Hart-Dworkin Debatte. Ein Beitrag ze den internationalen Kontrowersen der Gegenwart, LIT Verlag, Berlin, 2004, p. 83.

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arguments; therefore, he bravely states that ‘the whole issue of objectivity, which so dominates contemporary theory in these areas, is a kind of fake. We should stick to our knitting. We should account to ourselves for our own convictions as best we can, standing ready to abandon those that do not survive reflective inspection’91. These inspiring and brave philosophical insights concerning the significance of a constructive interpretation seem quite relevant, because they give rise to a certain inner tension between his conception of the stability of law as its integrity related to a united political community92 on one hand, and the construction of law as working it out pure in normative terms, when the political community is not (axiologically) united, on the other hand. In my opinion, this very tension is what pushes Dworkin to shift his attention mainly to the issues of political morality and, more importantly, to the claims that he interprets law on the basis of objective values93.

91 Ronald Dworkin, A Matter of Principle, op. cit., p. 172. 92 What is at stake here is the response to the question of whether integrity utters, to a certain extent, a particularity of the possible interpretations of universalisable claims—political principles oriented at the concept of justice—which is what I contend, or whether it ‘amounts to universalizablity’, as La Torre argues (Massimo La Torre, Constitutionalism and Legal Reasoning, op. cit., p. 70). I shall come back to the issue in later passages. 93 Ronald Dworkin, Justice in Robes, op. cit., p. 154: ‘Political values, too, are real’. In Ronald Dworkin, Is Democracy Possible Here?, he writes with a stronger emphasis that ‘we must be assuming that there is objective truth to be had in the realms of ethics and morality. (…) But we must make that assumptions because the opposite, sceptical claim is philosophically indefensible’; Is Democracy Possible Here?, op. cit., p. 43; and on p. 46, he makes an assumption that rejecting this sceptical position forms a common ground for diverse political cultures. Further, in Justice for Hedgehogs, he announces that this whole book concerns values and their unity or mutual dependence (Justice for Hedgehogs, op. cit., p. 2) because ‘in political morality integration is a necessary condition of truth’ (ibidem, pp. 5–6), so holds with ‘a value-based general theory [of interpretation]’, from it which follows ‘that political morality depends on interpretation and that interpretation depends on values’. Thus, it may be stated that for the late Dworkin, there are objective moral values on which the general theory of interpretation is founded. More precisely, he intends to buttress his standpoint with the strong claim that these are objective ethical values, because he makes a crucial reduction in the sense of ‘interpretative integration of ethics and morality’ (ibidem, p. 14.). Consequently, therefore, ‘the best understanding of morality flows from and helps define the best understanding of ethics’ (ibidem, p. 16). However, there are also thinkers for whom the late Dworkin’s convictions formulated in political philosophy are quite sound (and in opposition to my standpoint, the writings in the field of the philosophy of law do not seem convincing). One of them is Matthew Kramer, who

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In my view, Dworkin attempts to achieve at least two objectives. The first is to ‘slow down’ the consequences of the construction of law—that would appear or be spoken about at the level of the legal order operating—because they would turn out to be too rapid processes of its universal-normative transformation. I shall probe the issue of a constructive interpretation in more detail in Chapter II. Second, as Richard J. Arneson wittily notes, ‘the theorist of justice appears to be in a bind: given the evident fact of widespread disagreement on the good among members of a diverse modern society, to allow convictions about the good to influence the choice of principles of justice threatens to defeat the search for broad and reasoned agreement on such principles’94. The point is that Dworkin does not differentiate properly the social and political spheres95. Thus, he realises that with endorses the tenet of value-monism that Dworkin endorses; Matthew Kramer, Working on the Inside: Ronald’s Dworkin Moral Philosophy, Paper No. 9/2012, May 2012, available at http://www.law.cam.ac.uk/ssrn/. 94 Richard J. Arneson, “Cracked Foundations of Liberal Equality”, in: Justine Burly (ed.), Dworkin and His Critics with Replies by Dworkin, op. cit., p. 79. 95 Hercules’s ‘theory identifies a particular conception of community morality as decisive of legal issues; that conception holds that community morality is the political morality presupposed by the laws and institutions of the community’ (Taking Rights Seriously, op. cit., p. 126); thus ‘integrity therefore fuses citizens’ moral and political lives: it asks the good citizen, deciding how to treat his neighbor when their interests conflict, to interpret the common scheme of justice to which they are both committed just in virtue of citizenship’ (Ronald Dworkin, Law’s Empire, op. cit., pp. 189–190). But political morality is a part of the abstract political culture which is being established, as I will argue in the subsequent chapters, in and through ‘institutional intersections’, as I name them, and it cannot be directly identified with reasonable comprehensive doctrines stemming from lifeworlds—and the problem is that Dworkin does not differentiate them properly. The latter forms but a basis that animates the political public sphere. Moreover, Dworkin presumes that one (and the same) form of life is shared by the participants in social practice (in the sense of Wittgenstein; compare: ibidem, pp. 63–64, 90.), although in Justice in Robes, he tries to unfold this practice as more interpretatively complex, referring also to disagreements about the criteria for identifying diverse interpretative concepts and the institutions that handle them (Ronald Dworkin, Justice in Robes, op. cit., pp. 11–12). Nevertheless, once again in Is Democracy Possible Here?, he advocates that there is ‘an objective standard of a good life’ (Ronald Dworkin, Is Democracy Possible Here? Principles For a New Political Debate, op. cit., pp. 12–13), and in Justice for Hedgehogs, he confirms this flat or reductionist view of forms of life and political morality holding onto the existence of objective ethical values (Ronald Dworkin, Justice for Hedgehogs, op. cit., p. 7). Jürgen Habermas, on the contrary, considers pluralistic societies in which members do not share the same form(s) of life. From Habermas’s perspective of the constructivist

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regard to the very assumptions in political philosophy that he takes for granted, one concept of justice, and consequently a unified set of political principles, is hardly conceivable. Therefore, in his later writings, he decides to strengthen the claim about the unity of the political community also presupposing, in a quite controversial manner, its ethical integrity96. With the problem of the stability of the legal system at the centre, Dworkin makes a crucial assumption that ‘law is an interpretative concept’97; otherwise, it would not be possible to think of the system of norms in terms of principles and of legal rights justifying the whole body of law—the system which is to be worked pure—because the law would be caught in a past that does not fit the current modern demands of justice98. Thus, the interpretation of law, in view of theory, the forms of life are not shared, and what is or may be shared is to unfold in the political practice, namely, in the processes of the public construction of justifications of will-formation, or in the processes of the public construction of the ideas pertaining to an abstract political culture. Thus, if the community’s morality is the political morality, then it is connected with the public justifications of political and legal decisions, which are also always made by citizens and not only by their representatives and which are definitely not the same as social moralities (stemming from different lifeworlds) relating to social practices that are supposed to justify some numberless moral claims (compare: A Matter of Principle, op. cit., p. 153). Coming back to Dworkin, it must be reiterated that whatever the political morality is, in his view, the constitutional morality ‘is the justification that must be given for its constitution as interpreted by judges’, and because legal practice—interpretation—is always argumentative (Ronald Dworkin, Law’s Empire, op. cit., p. 13.), then it follows that judges, while interpreting the constitution, recognise or dis-recognise certain principles that are decisive for legal issues and pertaining—in their view—to the community morality. In fact, Dworkin himself admits this reading: ‘judges should enforce only political convictions that they believe, in good faith, can figure in a coherent general interpretation of the legal and political culture of the community’; Ronald Dworkin, A Matter of Principle, op. cit., p. 2; compare ibidem, pp. 161–162. 96 Compare the critical standpoint on this move in Richard J. Arneson, “Cracked Foundations of Liberal Equality”, op. cit., p. 80. 97 Ronald Dworkin, Law’s Empire, op. cit., pp. 87, 410. Ronald Dworkin, Justice in Robes, op. cit., pp. 11, 12–22. The recognition of law as an interpretative practice means, in view of Dworkin, the recognition of law as an argumentative practice, that is, in Habermasian terms, as the practice developed at the post-conventional stage; compare Ronald Dworkin, Law’s Empire, op. cit., pp. 90–91. 98 And that is a real problem generated by the ‘semantic sting’, as Dworkin advocates that ‘government has become too complex to suit positivism’s austerity’, Ronald Dworkin, Justice in Robes, op. cit., pp. 211–212; ‘The political appeal of positivism correspondingly drained away. It was associated no longer with democratic progress,

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Dworkin, must have the following characteristics99. (i) It must be the normative and thus constructive100 interpretation (i_a) of the whole body of law101, that is, of its statutes, adjudication as well as of the legal practice that is connected to the whole process of law making and application102 (i_b). (ii) The aim of the interpretation of the whole body of law is to give one right answer to questions concerning what the law says and what it does not say. Crucially, as Dworkin constantly emphasises, the question of what law is, is a normative question, not a descriptive one, because it involves the issue of the principles of law and legal rights that justify the normative system as such. To reiterate the relevance of this shift—if Dworkin’s comprehension of the legal system had stayed at the level of legal rules (or legal norms, as may be said in the vein of the continental tradition), then he would not have been able to hold onto the stability of law when faced with the changing socio-political and economic situations as well as the technological innovations that all induced changes in law (understood as legal rules)—changes that would express the recognition of that said dynamic of the world and normative claims that stand behind them. (iii) Thus, the constructive interpretation of law is to be made on a meta-theoretical level by judges103 in hard cases, that is, when ‘the question whether or not some party has a right to a political act or decision’104 appears. (iv) It results that although the meta-interpretation of law must be argumentative, because the body of law is in never-ending need of justification and its principles are in need of weighting105 when related to concrete issues, it is

99 100 101 102 103

104 105

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but with conservative majoritarianism; it was liberal judges who appealed to morality in justifying greater legal protection for individual rights’; ibidem, p. 212. I do not intend to completely characterise the idea of the interpretative nature of law in Dworkin; I solely wish to indicate the crucial points of the issue in question. Ronald Dworkin, Taking Rights Seriously, op. cit., pp. 160–163; an interpretation should be based on principles, as he claims till his turn towards objective values as its underpinnings. Ibidem, p. VII. Ronald Dworkin, A Matter of Principle, op. cit., p. 37. While elaborating on such an interpretation, Dworkin immediately raises the question about the theoretical background (about theories) of those who make political decisions, in order to draw from this theoretical background arguments for a certain reading of the meaning of a statute, that is, a reading grounded in the best justification of it; compare Ronald Dworkin, Law’s Empire, op. cit., pp. 327–338. Ronald Dworkin, Taking Rights Seriously, op. cit., p. 297. Ibidem, p. 26: ‘principles have (…) the dimension of weight of importance’, see pp. 41, 44.

always monological106 and never deliberative, although it is argumentative and, to a certain degree, presumes partnership107 within judges; thus, he contends that any interpretation of the constitution ‘must be a justification drawn from the most philosophical reaches of political theory’108, (v) because it is oriented towards such an interpretation of the principles justifying legal rights and thus the whole system of law, which is grounded in the claim to political integrity, and only such an interpretation is able to do justice to the claim that ‘law as integrity (we might say) is the idea of law worked pure’109 and, this way can also protect the stability of the system of law and of an order. In my view, all these theoretical moves entail that although ‘his theory allows ample room for historical reasoning’110, we may nevertheless observe the transition of accents related to time, from the past—understood as legal rules enacted by a historical law-maker and/or recognised by judges—to the present, or more precisely, to ‘the moral judgement of the present-day judge’111, but interestingly, 106 Neil MacCormick puts it concisely: ‘my dear friend and admired senior colleague, Ronald Dworkin, is an interesting example of somebody who always surveys the world from a single position: his own’; Neil MacCormick, “MacCormick on MacCormick”, in: Augustín José Menéndez, John Erik Fossum (eds.), Law and Democracy in Neil MacCormick’s Legal and Political Theory. The Post-Sovereign Constellation, Springer, Law and Philosophy Library, Volume 93, Dordrecht, 2011, p. 17. The point is that the same seems to apply to the scientist Dworkin as well as to his theory—a monological attitude. 107 Naturally, I think here of the Dworkinian depiction of a judge who is ‘like a novelist in a chain’ and ‘must regard himself, in deciding a new case before him, as a partner in a complex chain enterprise of which these innumerable decisions, structures, conventions, and practices are the history’ (Ronald Dworkin, A Matter of Principle, op. cit., p. 159). The idea of judges’ communities, developed by Marek ZirkSadowski, draws on that extensively; nevertheless, in so doing, it still takes over the argumentative, but not deliberative, underpinnings. Interestingly, however, the idea seems to fit the current practice of the supreme courts in the European Union; compare Voßkuhle Andreas, “Multilevel Cooperation of the European Constitutional Courts. Der Europäische Verfassungsgerichtsverbund”, European Constitutional Law Review, Vol. 6, 2010 (pp. 175–198). 108 Ronald Dworkin, Law’s Empire, op. cit., p. 380. 109 Ibidem, p. 400. 110 Christopher L. Eisgruber, “Should Constitutional Judges be Philosophers?”, in: Scott Hershovitz (ed.), Exploring Law’s Empire: The Jurisprudence of Ronald Dworkin, op. cit., p. 5. 111 Rebecca L. Brown, “How Constitutional Theory Found its Soul: The Contributions of Ronald Dworkin”, op. cit., p. 50.

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by no means to the future112. The One Right Answer Thesis113, that is, the answer being made here and now when the question stemming from a hard case is being posed, takes for granted the necessity of the argumentative interpretation of institutional history (past rulings and hypothetical situations114) and that the justification for the judicial ruling should explain all past judicial judgements. That claim anchors the process of working the law pure in the present as the clash between the past rulings and the future normative purity of law, and, in this way, protects the system of law against a contingency that would threaten the demand of integrity115. 112 As Dworkin advocates for ‘a conception of interpretation, a conception which claims that the best political theory gives the intentions of legislators and past judges a decisive role in interpretation’; Ronald Dworkin, A Matter of Principle, op. cit., p. 163; therefore, ‘it is his [judge’s] job to continue that history into the future through what he does on the day’; ibidem, p. 159 (emphasis added by KMC), because ‘law as integrity supposes that people are entitled to a coherent and principled extension of past political decisions even when judges profoundly disagree about what this means’; Ronald Dworkin, Law’s Empire, op. cit., p. 134. 113 The One Right Answer Thesis is a constructivist normative assumption that stipulates the conditions under which a normative formulation of the best response to what the law says is the best justified one; compare Ronald Dworkin, Taking Rights Seriously, op. cit., p. 81. The construction of the best justification embraces basically two levels of consideration: it responds the question of a better fit related to the history of institutionalisation, and a question of political morality, that is, of the principles of political morality; ibidem, p. 340. For this reason, Raz argues that ‘integrity is a matter of achieving the greatest possible fit with past legal records’ (Joseph Raz, “Speaking with One Voice: On Dworkinian Integrity and Coherence”, op. cit., p. 288). However, I do not agree with him on this issue, for the reasons stated above; I fully endorse James E. Fleming, who states that ‘we should acknowledge the place of history in constitutional interpretation (…) [and] should keep it in its place [in order to] move beyond the threshold dimension of fit to the dimension of justification’; James E. Fleming, “The Place of History and Philosophy in the Moral Reading of the American Constitution”, in: Scott Hersovitz (ed.), Exploring Law’s Empire: The Jurirsprudence of Ronald Dworkin, Oxford University Press, New York, 2006, p. 36. 114 Ronald Dworkin, Taking Rights Seriously, op. cit., pp. 87–90. 115 Ibidem. The ideal judge Hercules should deliver a coherent justification (ibidem, pp. 116–117), which is based on principles, for all precedents, also taking into account mistakes, and give justifications as to why they were mistakes (ibidem, p. 121). In addition, the judge should explain why he treats other cases differently (ibidem, p. 135). This also applies to interpretations of statutory provisions made by judges; this is a relevant issue because these are judges who interpret the whole body of statutes in a way that is oriented at justifying them as consistently established ones (ibidem, pp. 116–117). As one may see, the relevance of the above-stated features

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In other words, the One Right Answer Thesis is a procedure tailored for delivering the interpretation of the system of law116; the institutions that apply this procedure and the appropriate office-holders (judges) may come to different conclusions (statements), and thus to different competing interpretations, but in Dworkin’s view, this may happen under a unifying precondition that there is one law (one system or body of law) to be interpreted by all of them, and its identity is in fact under construction (is being interpretatively constructed, or is in the process of working it up)117. This is a compelling theme in this conception. Further in the argumentation, if we presume together with Dworkin that principles are to be understood in a deontological fashion, which is what is at stake with this kind of normative interpretation, then what is under construction (constructive interpretation) is one universal body of law founded on principles justifying legal rights. As Dworkin states, human rights may be conceived as ‘the trumps-over-sovereignty idea’118, and if human rights should not be random rights, then they must sooner or later be related to the ‘set of principles’ justifying the legal rights of a certain polity. Perhaps, then, this constructive interpretation towards the pure body of law would lead in its consequences to the claim that a unified legal system is conceivable if it is based on human rights that legitimise political decisions119. If one presumes that morality is a matter of argumentation (and Dworkin does), and further, presumes that discursive argumentation justifies universalisable, normative claims (which Jürgen Habermas assumes), and if one deals with a system of law that takes

116 117

118 119

of interpretation consists of a monological interpretation that does not take citizens seriously. The judge may take into account statements made in public in a parliament as arguments for or against a certain provision; however, at the end of constructing his argumentative strategy dedicated to erecting ‘an entire theory of law’ that would justify his interpretation of the issue in question, he is expected—on the grounds of Dworkinian theory—to present it in a consistent way, because the community’s ‘constitutional morality, (…) is the justification that must be given for its constitution as interpreted by its judges’ (ibidem, p. 126). In other words, the one who recognises which principles of political morality are ‘established’ in a certain community is a judge himself. Ibidem, pp. 279–280. ‘Under law as integrity (…) ordinarily one interpretation (…) provides a better justification of standing constitutional practice than any other: that is, that one interpretation is a better answer to the third question, of law’; Ronald Dworkin, Law’s Empire, op. cit., pp. 371–372. Ronald Dworkin, Justice for Hedgehogs, op. cit., p. 333. Ronald Dworkin, Is Democracy Possible Here?, op. cit., p. 96.

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seriously the right to treatment as an equal (as Dworkin does), then, at the end of the day, one comes to the idea of the universal system of law put forward. Moreover, it may be claimed that for Dworkin, principles are arguments put forward in order to make legal rights the best interpretations of universalisable, normative claims, because while most of them are rights that shall always be tailored to the political community in question (that is, political rights), there are some ‘universal [ones], because arguments are available in favour of these rights against any collective justification in any circumstances reasonably likely to be found in political society. Is these that might plausibly be called human rights’120. There is, however, one more issue strongly linked with these problems that must therefore be put forth. There is one law, in the sense of the body of law, nevertheless under the condition of taking into account a claim to political integrity; in other words, there is one system of law for each political community121 according to Dworkin. The presumption of political integrity should be understood as a consequence of the claim that there is a right to treatment as an equal which is fundamental and must be undoubtedly observed and exercised. Only doing justice to the ideal of political integrity may safeguard the right to treatment as an equal in the medium of law122. In order to meet the said claim, the identity of law (of the system of law) undergoes construction and cannot be read as given but calls for the one right answer. In my view, the claim to political integrity that broadens the understanding of the rule of law replaces the principle of popular sovereignty in Jürgen Habermas’s co-originality thesis, which I will discuss in depth in a subsequent subchapter. The point is that Dworkin holds onto the interpretation of political rights particularly as rights against

120 Ronald Dworkin, Taking Rights Seriously, op. cit., p. 365. 121 Ronald Dworkin, Law’s Empire, op. cit., p. 185: ‘integrity holds within political communities, not among them’ and ‘interpretative theories are by their nature addressed to a particular legal culture, generally, the culture to which their authors belongs’; ibidem, p. 102; ‘legitimacy flows from and defines citizenship. This objection points away from justice, which is conceptually universalistic, and toward integrity, which is already more personal in its different demands on different communities, as the parent of legitimacy’; ibidem, p. 193. 122 Dworkin argues in Law’s Empire that ‘a collection of law’ would be deemed autonomously enacted (by an autonomous legislator) only if it is internally consistent—in the sense stipulated by the law as integrity, that is, based on principles and legal rights that are justified by them—otherwise the legislator’s will would be deemed heteronomous; ibidem, p. 189.

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government123, because he is strongly interested in the stability of law and is thus afraid that interpreting political rights also as such rights that people have against their fellow citizens—what means, in fact, coupling the rule of law with the principle of popular sovereignty—would cause the legal autoreview to slip away, allowing far too much room for the citizens’ interpretations. Taking it all for granted, we may clearly see why in the Dworkinian conception the judges are those who are to interpret the law, and even more importantly, according to this conception, ‘judges make contemporary judgements of political morality’124. Dworkin ‘cannot imagine what argument might be thought to show that legislative decisions about rights are inherently more likely to be correct than judicial decisions’125 and he ‘know[s] of no reasons why a legislator is more likely to have accurate beliefs about the sort of facts that, under any plausible conception of rights, would be relevant to determining what people’s right are’126. In fact, the stability of law is possible, in view of Dworkin, only if the legal order is auto-reviewed. However, democracy must address this matter that the principle of popular sovereignty should be co-assumed with the rule of law. I agree with Habermas that the will of citizens matters, because legislating is all about this, not just about the will of a group of people who claim that they are better educated and more sophisticated in their thinking and that ‘both the responsibility and the tradition are clearer in their case than in that of advocate, professor, or citizen’127. In other words, the following issues are highly debatable in Dworkin’s considerations in the field of political philosophy, and even in his conception of a moral reading of the constitution. 1. The Dworkinian understanding of legal rights is quite narrow in this sense. Dworkin understands them as rights against a government, even when he makes some attempts to recall a more republican understanding of the polity, refers to 123 Ronald Dworkin, Taking Rights Seriously, op. cit., p. 94; footnote 1 seems especially crucial on that point; p. 150, see also on the role of a government pp. 197, 198, 199, 205. See also Ronald Dworkin, Law’s Empire, op. cit., p. 93. 124 Ronald Dworkin, Freedom’s Law. The Moral Reading of American Constitution, Oxford University Press, New York, 2005, p. 37. 125 Ronald Dworkin, A Matter of Principle, op. cit., p. 24. Compare also Ronald Dworkin, Sovereign Virtue. The Theory and Practice of Equality, Harvard University Press, Cambridge, Massachusetts, London, England, 2002, pp. 208–209. 126 Ronald Dworkin, A Matter of Principle, op. cit., p. 24. 127 Ronald Dworkin, Justice for Hedgehogs, op. cit., pp. 142–143.

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Isaiah Berlin’s concept of positive liberty (or liberty of ancients in Benjamin Constant) and states that he pays heed to the ‘right of self-determination’128. 2. This is so according to his narrow understanding of democracy, comprehended not as the principle of popular sovereignty but as an idea infected by ‘the majoritarian premise’ that is neither removable nor transformative; it may even be stated that Dworkin is consequently blind to any other conceptualisation of democracy129. 3. I think that the above, at the philosophical level, is underpinned by a specific understanding of the interpretative work in general—the work that is monological in fact and therefore renders Dworkin incapable of conceptualising interactions, that is, communicative interactions, among citizens. From this, it follows that he may attend to the issue of community not as a common discursive ‘product’ or ‘creation’ but, at best, as an object of a common agency130 and monological argumentation. 4. The aforementioned problem seems inextricably connected with the Dworkinian conflating, or mixing, of the social and political spheres and respective actions that constitute them. This issue has a serious effect on his thinking about ‘public opinion’. The problem that arises here is that he does not differentiate processes of opinion formation from processes of will formation, resulting in his statement that citizens’ opinions are being uttered in legislative decisions131

128 Ronald Dworkin, Freedom’s Law, op. cit., p. 21. 129 Compare Bellamy critically on that issue in Richard Bellamy, Political Constitutionalism. A Republican Defence of Constitutionality of Democracy, Cambridge University Press, Cambridge, 2007, pp. 93–100. 130 Ronald Dworkin, Freedom’s Law, op. cit., p. 20. 131 The reading of an act, of a statute, under law as integrity aims at showing the political history in the best light through unfolding the political history in terms of institutional theory. Such a reading (that interprets the lawmaker’s intention in terms of the principles justifying the statute as a part of the normative system), in view of Dworkin, shall pay heed to (i) legislators’ statements about the statute made during debates over it; (ii) public opinion on that matter; and (iii) committee reports; Ronald Dworkin, Law’s Empire, op. cit., p. 313. However, the problem concerning public opinion here is that the ‘public’s opinion (…) is revealed and expressed in legislative statements’; ibidem, p. 342. Therefore, it maybe stated that (i) Dworkin does not differentiate opinion formation from will formation, and thus he (ii) identifies the expressions of citizens’ will, made by their representatives, with citizens’ opinions that are, in fact, made in so-called weak publics (that are not yet institutionalised within the political system). Thus, he remains blind to the processes by which the citizens’ opinions transform into their will, that is, to the processes by which the public constructs the justifications for the decision-making.

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and, as such, they constitute a material to be taken into account by judges, who ‘make contemporary judgements of political morality’132. The grave problem that emerges from this confusion takes the shape of the Dworkinian incapacity to conceive of transformations of opinions and will due to public justifications; one may only claim the search for better justified interpretations of normative claims made by judges. 5. On a deep philosophical level, we may discern the influence of this noninteraction as non-discursive thinking about the interrelations among citizens, who are also always persons, on the determination of the very aim of democracy—as Dworkin claims, it is ‘goal-oriented’133. This entails that the conceptualisation of democracy as such has little to do with enforcing and developing people’s (citizens) reasonableness—but interestingly, he argues quite the contrary to Rousseau, although recalling Rousseau—and this explains why reasonable judges are needed to protect the basic normative claims of the reason, like justice and the fairness of cooperation. 6. Taking it all for granted, we may see that the Dworkinian conception of the theory of law and its inextricable link with political theory resembles Plato’s considerations from the Republic—but instead of ‘pure’ philosophers, Dworkin advocates ‘lawyers and judges [who] are working political philosophers of a democratic state’134—taking the objectivity of values as the most important assumption in making argumentative interpretations, which work the law pure instead of marching throughout the anamnesis. Let us pose the question again: Why does Dworkin give so much attention to the issue of political morality? Why does he insist that the law pertains to the domain of political morality?135 The answer is, because the faster judges and lawyers, in general, acknowledge that the current world is too complex to hold onto the separation between law and politics or morality, the faster their roles would transform into the roles of those who are entitled to protect the stability of law, employing also political terms and responding to the urgent contemporary problems of political morality. In addition, Dworkin considers judicial activism as a kind of catching up in civic education—under the condition that judicial decisions are based on principles136—and

132 133 134 135 136

Ronald Dworkin, Freedom’s Law, op. cit., p. 37. Ibidem, pp. 15–16. Ronald Dworkin, Justice for Hedgehogs, op. cit., p. 414. Ibidem, p. 5. Ronald Dworkin, Taking Rights Seriously, op. cit., pp. 138–139.

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therefore, in his view, the ‘principles of fairness seem to speak against, not for, the argument from democracy’137. In his late writings, I contend, he makes the turn from principles towards values, significantly denying the value pluralism. ‘We cannot defend a theory of justice without also defending, as part of the same enterprise, a theory of moral objectivity.’138 The redefinition of the rule of law as also embracing ‘pre-existing legal rights’ was thought to reasonably, and not in a stubborn fashion, protect the stability of law. Alas, the turn from principles towards objective moral values as the fundamental underpinnings of legal interpretation (and of the interpretation of law) seems to be a move back towards its simple rigidity. The statement that the law is an interpretative concept, it results, is by no means intended to destabilise the system of norms which, at this point, is open to moral argumentation; quite the opposite, it seems that it is intended to protect the stability of the system of law in the new twentieth-century social reality, by taking control over the recognition of principles of political morality139. In this context, it is worth noting that Dworkin willingly follows Rawls in understanding the concept of public spheres, and he never even takes into account Habermas’s considerations on this issue. For Dworkin, the public sphere consists of political institutions and public office-holders, and it is sharply cut off from the social sphere140. This public sphere, which plays a significant role in the process of recognising the political principles that a judge (Hercules) may invoke while constructing his interpretative argumentation, is closed to social issues, to the possibility of social emancipation, because these would introduce too much dynamism to the system of law and destabilise it. The thin concept of the public sphere that Dworkin employs in his theory enables him to hold onto the statement that law is a matter of theoretical (meta-theoretical) interpretation, that is, monological interpretation141. 137 Ibidem, p. 142. 138 Ronald Dworkin, Justice for Hedgehogs, op. cit., p. 8. 139 Ronald Dworkin, Justice in Robes, op. cit., p. 35: ‘It would encourage us to see jurisprudential questions as moral questions about when, how far, and for what reason authoritative, collective decisions and specialized conventions should have the last word in our lives’. 140 Compare Ronald Dworkin, Freedom’s Law, op. cit., p. 10: ‘They [judges] must regard themselves as partners with other officials, past and future, who together elaborate a coherent constitutional morality, and they must take care to see that what they contribute fits with the rest’. 141 The above statement does not contradict my previous claim that there is no difference to Dworkin between social and political public practices, and thus between social and

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The consequences of the Dworkinian theory may be considered as follows. (i) First, the Dworkinian theory is responsible for introducing a certain dynamic to the understanding of law that, in the early years of Dworkinian scientific activity, would have been emancipated in terms of the burden of the transformation of law towards the ‘law worked pure’. Further, this transformation would have come about due to the need to give the political principles dedicated reflective weighting—most of all—to do justice to the ideal of integrity. However, in the latter phase of his work, Dworkin seems to be afraid of the possibilities which he created by elaborating and delivering a new theoretical tool kit for the understanding of the system of law, and for that reason, he turns back towards objective political (and also ethical) values. This is actually a turn back because the normative deontological approach to legal rights that encourages Dworkin to make the very inspiring and bold claim that ‘the issue of objectivity (…) is a fake’142 (he probably states this because the issue of objectivity is a descriptive term, and as such, it might be seen as a certain theoretical obstacle to justifying the claim to normative integrity; thus, what matters most is this normativity) has become replaced by the strong assertion of the objectivity of values143, and by the reduction of the problems of law to problems of political morality, and of the latter to ethics. Nevertheless, the issue of the legal dynamic is, in the meantime, undertaken by Habermas, whose theory I shall analyse in subsequent chapters. (ii) Second, the visible care for assuring the stability of the legal system pushes Dworkin to deny a profoundly democratic cooperative and discursive character of law—with regard to its interpretation, and to a certain extent, to processes of law making—under the cover of the principle of equality and, more

political morality; rather, it stems from this claim. The point is that because he identifies these two diverse kinds of practice, he cannot see any good reason for admitting the reasonableness of granting citizens access to public justificatory debates, and he remains threatened by the image of majority-rules-democracy. On this non-transformative approach, the public office-holders already acknowledge (interpret) what citizens would have to say, so they do not have to speak up themselves. Furthermore, in Dworkin’s theses, public office-holders, especially judges, are better educated and are more responsible, so they may prevent the simple majority-rule with which Dworkin identifies democracy. 142 Ronald Dworkin, A Matter of Principle, op. cit., p. 172. 143 Ronald Dworkin, Is Democracy Possible Here?, op. cit., pp. 43, 46; Ronald Dworkin, Justice for Hedgehogs, op. cit., p. 7.

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precisely, under the right to equal concern and respect144. Interestingly, this refusal undergoes intense scrutiny from Neil MacCormick, who endeavours to protect the law against the influence of political power that, in his view, most often lacks normative authority and, to a certain extent, as I will try to show in a subsequent subchapter, against soaking up moralisation, which finally led MacCormick to institutional interpretative pluralism. (iii) Nonetheless, the transformation of comprehending the system of law as a normative system towards the stage of principles and legal rights becomes especially relevant because MacCormick’s elaboration of the concept of post-sovereign states and its relation to interpretative institutional pluralism enables one to think about the opening of the legal sources of Union law towards the common European constitutional culture. This issue seems to be undertaken in the conception of law as a constitutional normative synthesis, as presented by John Erik Fossum and Augustín José Menéndez. The common European constitutional culture seems to be the source of arguments to be used while interpreting (that is, justifying) the common action norms of Union law. Therefore, while we may agree or disagree with particular Dworkinian statements, his great contribution to the philosophy and theory of law is undeniable and remains influential.

4. The Second Road: Habermas’s Discursive Reorientation Towards the Future-Oriented Project In the meantime, Robert Alexy offers a continental version of the refutation of Hart’s position. Also making use of Jürgen Habermas’s analysis concerning the discourse ethics, he affirms in his famous work, A Theory of Legal Argumentation, that legal argumentation145 pertains to moral argumentation, and it constitutes a special case (Sonderfall) of practical discourse146. Habermas, who also draws on 144 Ronald Dworkin, Taking Rights Seriously, op. cit., p. XII. 145 Robert Alexy, A Theory of Legal Argumentation. The Theory of Rational Discourse as Theory of Legal Justification, trans. Ruth Adler, Neil MacCormick, Clarendon Press, Oxford, 1989. He investigates the issue in part C. 146 A theory of general rational practical discourse is analysed in part B of that book. La Torre, however, emphasises that the Sonderfallthese endorsed by Alexy ‘ignores

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Alexy’s considerations147 concerning the ‘procedural theory of practical reason’148, does not entirely endorse Sonderfallthese149. It is so, first, because of Habermas’s restriction concerning the difference between the deontological understanding of principles and values which states that the latter—contrary to principles or moral norms—may be interpreted qua expressions of preferences150, second, the discourse

147

148 149

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what for Habermas is the real point of disagreement with Alexy’s views: legal validity derives from much more than moral discourse requirements and a legal validity that satisfies the requirement of the ideal discursive situation is necessarily bound to a specific political horizon: constitutional democracy. Alexy’s mistake would be his silence or ambiguity about the relevance of a special institutional setting (constitutionalism) for a rationality of legal discourse’; Massimo La Torre, Constitutionalism and Legal Reasoning, op. cit., p. 75; and that theme will be explained in the course of the book. Habermas also refers to Alexy while developing his discourse theory; compare Jürgen Habermas, Moral Consciousness and Communicative Action, trans. Christian Lenhardt, Shierry Weber Nicholsen, The MIT Press, Cambridge, Massachusetts, 1999. See also his confession on this point, Jürgen Habermas, “Reply to Symposium Participants, Benjamin N. Cardozo School of Law”, trans. William Rehg, in: Michael Rosenfeld, Andrew Arato (eds.), Habermas on Law and Democracy. Critical Exchanges, University of California Press, Berkeley, Los Angeles, London, 1998, p. 428. Jerzy Stelmach, Bartosz Brożek, Metody prawnicze, op. cit., p. 31. On the difference between Alexy and Habermas according to the Sonderfallthese with regard to Alexy’s claim to the correctness of law, see Stuart Toddington, “The Moral Truth about Discourse Theory”, Ratio Juris, Vol. 19, No. 2, June 2006 (pp. 217–229), here pp. 225–226. As La Torre aptly notes, in view of Alexy, a constitution is a teleological rather than a deontological enterprise; Massimo La Torre, Constitutionalism and Legal Reasoning, op. cit., p. 32. Therefore, it must be stressed that for Habermas, fundamental rights must be read in a deontological fashion as conceptually distinct from values, while in Alexy, they differ from one another only in the form of expression. Jürgen Habermas, Between Facts and Norms, op. cit., pp. 208, 230–237, 254–255ff. See Robert Alexy, “Jürgen Habermas’s Theory of Legal Discourse”, in: Michael Rosenfeld, Andrew Arato (eds.), Habermas on Law and Democracy. Critical Exchanges, University of California Press, Berkeley, Los Angeles, London, 1998. Compare also Silvina Alvarez, “Constitutional Conflicts, Moral Dilemmas, and Legal Solutions”, Ratio Juris, Vol. 24, No. 1, 2011, (pp. 59–74), here p. 69; Karolina M. Cern, Bartosz Wojciechowski, “Postmetaphysical approach to moral autonomy and justification of the thesis of the necessary relations between the legal and moral discourse”, in: Bartosz Wojciechowski, Piotr W. Juchacz, Karolina M. Cern (eds.), Legal Rules, Moral Norms and Democratic Principles, Peter Lang Edition, Frankfurt am Main, 2013. David M. Rasmussen, “How Is Valid Law Possible?”, op. cit., p. 37: ‘Habermas’s point is that norms require a procedural mechanism for rational universalization, while values can only be legitimated as preferences’.

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theory is thought to replace the root of both morality and the law151. Thus, he takes the other route to the issue in Between Facts and Norms, deemed one of the most prominent works in the philosophy of law152, wherein he elaborates and thus accentuates the formal concept of autonomy that enables ‘norms of action branch out into moral and legal rules. From a normative point of view, this corresponds to the assumption that moral and civic autonomy are co-original and can be explained with the help of parsimonious discourse principle that merely expresses the meaning of postconventional requirements of justification’153. From the perspective of the legal philosophy, this means that Habermas broadens the way of conceiving the rule of law by adding as a necessary co-element the principle of popular sovereignty that is always co-original. However, form the perspective of political philosophy, it means that Habermas binds democracy with law; some authors perceive this as a certain shortage with regard to the understanding of the ideal of democracy, especially in the larger international or global context154. Furthermore, the co-originality of the rule of law and of the principle of popular sovereignty importantly changes the perspective from which fundamental rights may be considered. At stake is the fact that there is no longer an elaboration and assurance of the legal means to be exercised, if needed, against the government (and this way, to reiterate the issue, Dworkin conceives individual political rights), but, above all, there is at stake the establishment of the horizontal relations of mutual recognition among free and equal citizens as co-partners in the political enterprise155. The idea of the right to participate ‘in the public debate over the 151 Jürgen Habermas, “Postscript to Between Facts and Norms”, in: Mathieu Deflen (ed.), Habermas, Modernity and Law, SAGE Publications, London, Thousand Oaks, New Delhi, 1996, p. 139. 152 Compare Richard A. Posner, The Problematics of Moral and Legal Theory, The Belknap Press of Harvard University Press, Cambridge, Massachusetts, London, England, 1999, p. 98. 153 Jürgen Habermas, Between Facts and Norms, op. cit., p. 107. Thus, La Torre names this view (and includes Alexy’s discursive stance on legal law) the ‘inclusive natural law’ doctrine; Massimo La Torre, Constitutionalism and Legal Reasoning, op. cit., p. 147. Habermas, however, responds that ‘the discourse-theoretic concept of law steers between the twin pitfalls of legal positivism and natural law’, Jürgen Habermas, “Postscript to Between Facts and Norms”, op. cit., p. 140. 154 James Bohman, “From Demos to Demoi: Democracy across Borders”, Ratio Juris, Vol. 18, No. 3, 2005, (pp. 293–314), here p. 296. 155 Jürgen Habermas, Between Facts and Norms, op. cit., pp. 250–251. On this issue, compare William Rehg, “Against Subordination. Morality, Discourse, and Decision in the Legal Theory of Jürgen Habermas”, in: Michael Rosenfeld, Andrew Arato (eds.),

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justification of norms’156 underpins the new paradigm of law that aims at such a formal–legal equality that does justice to the recognition of the social inequalities that supress the exercise of ‘equally distributed liberties’157 without leaning towards state paternalism but rather, quite on the contrary, giving the addressees of law back their voice as those affected. In Habermas’s considerations, the normative source of law becomes conceived as an institutionalisation of the principle of discourse, thanks to which the latter operates in the medium of law and thus generates the principium of democracy. Consequently, this interweaves the form of law and the principle of discourse, such that the saturation of the code of law in the normative content is related to the communicative mobilisation of citizens. In other words, in the aftermath of introducing the said weave, the principle of democracy, regarded as a ‘mechanism for producing legitimate law’158, and the code of law itself—that is, the form of law necessary for enacting the law, although at this very moment the latter remains free from any normative content—presume each other and then become saturated with the normative content ‘by a political legislature in response to changing circumstances’159, but always with regard to the communicative mobilisation of citizens and the wide structures of communication through which the citizens may be heard. In brief, the idea of the proceduralist paradigm of law that introduces ‘a public of citizens’ 160 is at the centre of the philosophy of law. As a result, as Massimo La Torre pertinently states, ‘constitutionalism will not really do without a public sphere and some activism of the latter’161; moreover, the very sense of contemporary constitutionalism may be conceived as ‘the morality of a self-defining public sphere’162. In addition, Habermas questions both

156 157 158 159 160 161 162

Habermas on Law and Democracy. Critical Exchanges, University of California Press, Berkeley, Los Angeles, London, 1998, p. 264, supra note 27. Jacques Lenoble, “Law and Undecidability”, in: Michael Rosenfeld, Andrew Arato (eds.), Habermas on Law and Democracy. Critical Exchanges, University of California Press, Berkeley, Los Angeles, London, 1998, p. 42. Jürgen Habermas, “Paradigms of Law”, in: Michael Rosenfeld, Andrew Arato (eds.), Habermas on Law and Democracy. Critical Exchanges, University of California Press, Berkeley, Los Angeles, London, 1998, p. 20. Jürgen Habermas, Between Facts and Norms, op. cit., 122. Compare James Bohman, “From Demos to Demoi: Democracy across Borders”, op. cit., p. 301. Jürgen Habermas, Between Facts and Norms, op. cit., p. 125. Jürgen Habermas, “Paradigms of Law”, op. cit., p. 18. Massimo La Torre, Constitutionalism and Legal Reasoning, op. cit., p. vii. Ibidem, p. viii; see also p. xii.

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the legislative activity and the judicial activity of the supreme courts. With regard to the latter, he states the problem, neatly articulated by David Rasmussen, as ‘how to establish the link (…) between the activity of the courts and democratic willformation’163. Habermas responds to the question by underscoring ‘the communicative conditions of argumentation that make impartial judgement possible’164; in other words, due to the co-originality of the rule of law and the principle of popular sovereignty, he shifts from questioning argumentative judicial interpretations to discursive judicial interpretations, thus hitting out at the model of monological judicial interpretation and eventually leaving the door open for further and deeper processes of its democratisation, however, understood as the institutionalisation of the discourse rule that always safeguards the deontological reading of its foundations. The point is that, on the discursive approach, the supreme courts embody— only or as much as—the reflexive momentum of self-legislation processes165. Thus, the addressees of any constitutional issues (including constitutional conflicts) should eventually be unfolded as the authors of the constitution (that is, citizens). Therefore, the problem stated—and it must be admitted that it is also left open166—by Habermas indeed concerns how to translate this very premise of the source of the legitimation of the constitution into the case of the review of the law. That is, we must understand how to translate the co-originality thesis into the procedural terms of the review of constitutional provisions including fundamental 163 David M. Rasmussen, “How is valid law possible?”, op. cit., p. 38. 164 Jürgen Habermas, Between Facts and Norms, op. cit., p. 230. 165 Ibidem, pp. 241–242: ‘From the vantage point of discourse theory, the logic of the separation of powers demands an asymmetry in the way the branches of government interlock: the executive branch, which is not supposed to have control over the normative grounds of legislation and adjudication, is subordinate in its activity both to parliamentary oversight and to judicial review, whereas the opposite relation, a supervision of the other two branches by the executive, is excluded. (…) if we interpret the logic of separated powers in terms of argumentation theory, it is reasonable to construe legislation self-reflexivity, in a manner similar to the self-reflexive construction of the administration of justice, and to furnish the legislature with the authority to review its own activity. (…) What is known as abstract judicial review belongs without question among the functions of the legislature. Hence it is not entirely off track to reserve this function, even at a second level of appeal, to a legislative self-review that could be developed into a quasi-judicial procedure’. 166 Compare critically: Jacques Lenoble, “Law and Undecidability”, op. cit., especially pp. 69–71. See also András Sajó, “Constitutional Adjudication in Light of Discourse Theory”, op. cit., especially pp. 338, 362–363.

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rights, whereby the review would do justice to the principle of popular sovereignty and to the rule of law (understood in terms of legal certainty and the claim to its rightness167). In other words, since ‘the court may not assume the role of a regent who takes the place of an underage successor to the throne’168, that is, the court cannot take the place of ordinary citizens claiming—as Dworkin argues—that it advances their civic education, the most challenging problem is how to reasonably conceive the procedures of the democratic discourse in relation to judicial interpretations, due to the premise that fundamental rights are no longer a means against a government; they are rights that citizens grant one another to assert their mutual recognition as free and equal beings. According to Habermas, then, fundamental rights articulate the very preconditions of the socialisation of citizens into a democratic society169. Moreover, the current paternalistic model of judicial review no longer fits any discursive model tailored for the post-conventional stage of societal development. Thus, it may be stated that the self-defining or self-determining activity in the public sphere, rightly emphasised by La Torre and undoubtedly overlooked by Dworkin, is the focal issue in Habermas, who tailors his theory to modern democratic societies, that is, societies functioning on the post-conventional stage, on which moral practices of deliberation, to a certain degree, have already been reflected in the social and political-legal practices170. As a consequence, the constitution is no longer conceived as a persistent set of fundamental norms functioning 167 Jürgen Habermas, Between Facts and Norms, op. cit., p. 199. 168 Ibidem, p. 280. 169 Jürgen Habermas, “Postscript to Between Facts and Norms”, op. cit., p. 144. 170 Stefan Rummens, “Democratic Deliberation as the Open-Ended Construction of Justice”, Ratio Juris, Vol. 20, No. 3, 2007, (pp. 335–354), here p. 339. Compare also José Manuel Aroso Linhares, „Habermas y la argumentación jurídica“, transl. Aurelio de Prada García, Revista de la Facultad de Derecho de la Universidad Complutense de Madrid, Núm. 79, 1991–1992 (pp. 27–54), José Manuel Aroso Linhares, „O homo humanus do direito e o projecto inacabado da modernidade“, Boletim da Faculdade de Direito, Vol. 86, 2010 (pp. 515–561). Significantly, Rodolfo Arango states that theories of rights tailored for ‘well-ordered societies’—according to Rawls, however, the Habermasian perspective is that one would also say ‘societies on the postconventional stage of moral-democratic development’, and the argument would still be very important—are parochial due to these very assumptions, as they ignore, as I understand Arango, the rest of the world which is not ‘well-ordered’ at all and neither may be conceived as being at the ‘post-conventional stage’. Compare Rodolfo Arango, “Basic Social Rights, Constitutional Justice, and Democracy”, Ratio Juris, Vol. 16, No. 2, 2003, (pp. 141–154), here p. 142.

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‘above’ citizens and their polity; rather, it becomes perceived as an utterance of fundamental mutual agreements among citizens themselves that may at any time be challenged and undergo reasonable reconstructions due to the formulations of better arguments stemming from the discursive elaborations of constitutional issues. Briefly, the constitution starts to be comprehended as processes of discursive self-constitutionalisation on the part of its authors, who are always also the addressees of law, rather than as an enacted set of binding norms. The principle of discourse that Habermas uses in his investigations of the foundations of the democratic society was previously elaborated by him on the grounds of ethics discourse, in which, together with the principium of universalisation, it was supposed to function as a twentieth-century response to the Kantian project of the foundation of morals, or more precisely, as a modern response to the categorical imperative. The most profound aim of the institutionalisation of the principium of discourse rests on the fact that it is supposed to lead, or guide, to the intersubjective recognition of validity claims—recognition achieved by everyone affected and thus everyone who is supposed to participate in real discourse. Therefore, Habermas decides to apply this principium of discourse (D)171 in order to reconcile the factual constraints (in terms of legal sanctions) and legitimate validity of legal norms172, for which the discourse principle occurs as a joining nexus. However, in a certain sense, and to a significant degree, morality becomes inscribed in the process of institutionalising the discourse principle. This is evinced in the legal code, notably the five categories of rights that generate further legal norms173 (and in so doing, they imply the principle of democracy in action). They may be deemed the institutionalisation of human rights in the sense of the ‘basic [constitutional] rights’174 that condition and enable the active participation of the members of a polity in question in the processes of saturating the legal code in the normative content appropriately to the principium of universalisation (U)175. In other words, the principium of universalisation (U) renders the process of saturating the legal code in a normative substance by everyone affected, such that this

171 He applies only the principle of discourse (D), without taking immediately into account the principium of argumentation (U), which I explain in greater depth in Chapter II. 172 Jürgen Habermas, Between Facts and Norms, op. cit., p. 27. 173 Ibidem, pp. 122–123. 174 Jürgen Habermas, “Postscript to Between Facts and Norms”, op. cit., p. 142. 175 Here comes about the nexus of the principle of discourse and the legal form.

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becomes a process whereby moral claims are also taken into account, and in the aftermath of discursive proceedings, only outcomes that do justice to the universalisable form of moral claims are endorsed176. Therefore, as Stefan Rummens argues, the principles of discourse (D) and universalisation (U) settle respectively the proceduralist criterion and substantive criterion of justice177 on the whole lawmaking structure. Interestingly, as the upshot, they provide an open structure for a legitimate response to the requirements of justice178; nevertheless, the structure does not generate contingent answers (legal norms) but those that are based on epistemic reasons constructed within the deliberative processes, due to the ‘testing procedures’ settled by the principle of universalisation (U) that itself is tailored to differentiating partial and impartial reasons179. Therefore, the indicated rights of the code of law-making do not have a priori any moral content, but they are thought to guarantee all addressees of law real participation in the legitimation discourses180, whereby normative outcomes are 176 Bartosz Wojciechowski analyses the issue in more depth in Philosophical Approach to the Interculturality of Criminal Law, Peter Lang Verlag, Frankfurt am Main, 2010, Chapter II, section 2. 177 Stefan Rummens, “Democratic Deliberation as the Open-Ended Construction of Justice”, op. cit., pp. 337, 340; Stuart Toddington, “The Moral Truth about Discourse Theory”, op. cit, p. 227. 178 Stefan Rummens, “Democratic Deliberation as the Open-Ended Construction of Justice”, op. cit., p. 337. 179 Ibidem, pp. 343–345. 180 Habermas comments on the issue as follows: ‘(…) The establishment of the legal code as such already implies liberty rights that beget the status of legal persons and guarantee their integrity. But as soon as the legal medium is used to institutionalize the exercise of political autonomy, these rights become necessary enabling conditions; as such they cannot restrict the legislator’s sovereignty, even though they are not at her disposition’; Jürgen Habermas, Between Facts and Norms, op. cit., p. 128. In this context, Rodolfo Arango raises a serious objection towards this conceptual setting, charging Habermas with ignoring the significance of social rights as conditions for the ability to exercise one’s right to political autonomy. He argues that the formal term ‘autonomy’ as a precondition of the co-originality of the rule of law and of the principle of popular sovereignty ‘is an idealised concept, which presupposes the existence of the rights to autonomy and political participation, but which is not concerned to assure that the material conditions for autonomy and participation be exercised effectively by every individual. (…) [It] does not presuppose the guarantee of basic social rights’; Rodolfo Arango, “Basic Social Rights, Constitutional Justice, and Democracy”, op. cit., p. 148. Interestingly, a quite similar accusation was made years ago by Nancy Fraser in her famous “Rethinking the Public Sphere: A Contribution

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deliberatively settled and determined in the processes and procedures of communication among the citizens themselves. As Habermas argues, interpreting these five basic rights in terms of human rights pertains to the subsequent legislative steps of interpretation181. The basic idea of this proposal seems to be as follows: if citizens are to perform on the post-conventional stage of social development and take their political and private freedoms seriously, then they must have certain procedures (institutions) protected and guaranteed in order to formulate and articulate qua communicative structures their opinions and then discursively transform them into the political will, in order to have a real impact on political decisions182. With that in mind, Habermas embarks on the Dworkinian boat, prepared for the ‘constitutional sail’183 and ‘boldly goes where no one has gone before’184, that is, towards the common ‘future-oriented’ and ‘tradition-building project’185, although—or rather, because—the project is deontological in its essence. In opposition to Dworkin, Habermas takes much more seriously the principle of popular sovereignty; therefore, in any intersections of law and morality, the discourse comes to the fore in which all those affected by the law are supposed to participate, speak up, consider their arguments and construct normative responses to the issues posed. The root assumption of this standpoint is that the power and content of the moral claims to be imprinted also in law are not settled before the constitutionalisation discourses take place. Nevertheless, the equality of all citizens imposes deontological constraints on the interpretations of basic rights as constitutional rights.

181 182 183 184 185

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to the Critique of Actually Existing Democracy” (in: Habermas and the Public Sphere, Craig Calhoun (ed.), The MIT Press, Cambridge, Massachusetts, London, 1992), where the fire was directed at the previous model of the public sphere that Habermas proposes in The Structural Transformation of the Public Sphere. An Inquiry into a Category of Bourgeois Society, (trans. Thomas Burger, Frederick Lawrence, The MIT Press, Cambridge, Massachusetts, 1999), and what seems to deliberately change in Between Fact and Norms, taking into account the said line of critique. Jürgen Habermas, Between Facts and Norms, op. cit., pp. 125–126. Ibidem, p. 128. Ronald Dworkin, Freedom’s Law, op. cit., p. 12. Part of the introduction to each episode of Star Trek: The Next Generation. Jürgen Habermas, “Constitutional Democracy. A Paradoxical Union of Contradictory Principles?”, Political Theory, Vol. 29, No. 6, December 2001 (pp. 766–781), here p. 774. See also: Jürgen Habermas, “On Law and Disagreement. Some Comments on ‘Interpretative Pluralism’”, Ratio Juris, Vol. 16, No. 2, 2003 (pp. 187–194), here p. 193.

5. The Third Road: MacCormick’s Present Perfect of the Interpretative Cooperation Dworkin’s great contribution to the domain of the philosophy of law is also challenged by Neil MacCormick’s post-positivist approach186. In short, as Augustín José Menéndez and John Erik Fossum state, this approach is ‘a form of legal positivism which is conscious not only of the morality necessarily underpinning law, but also of the structural shift implied in the constitutionalisation of national legal orders, making law bind through principles to be detailed and derived into rules, not through rules which would then be generalised into principles’187. In view of MacCormick’s approach, Dworkin’s theory can be characterised as social rule scepticism, because, according to the latter, social practice does not generate social rules188. According to the theory of the American philosopher of law, the legal order stems from the background morality of those whose principles are embedded in the political institutions, and the background morality itself is the morality of the political community, whose principles are recognised at the legal-political level or should be recognised on the basis of the interpretation of the whole body of law. As MacCormick states in relation to the One Right Answer Thesis, ‘the law completely determines everyone’s rights (…) though it is difficult and inescapably controversial question what rights exactly the law does grant in what contexts to what persons’189, and that which precisely answers this question would be the correct answer. Therefore, in the Scottish scholar’s view, one should, in fact, consider three kinds of orders that may sometimes intertwine, although they are different in nature: (i) a normative order, (ii) an institutional normative order and (iii) an 186 On MacCormick’s post-positivist stance compare Aldo Schiavello, “Neil MacCormick’s Second Thoughts on Legal Reasoning and Legal Theory. A Defence of Original View”, Ratio Juris, Vol. 24, No. 2, June 2011 (pp. 140–155). 187 Augustín José Menéndez, John Erik Fossum, “Introduction”, in: Augustín José Menéndez, John Erik Fossum (eds.), Law and Democracy in Neil MacCormick’s Legal and Political Philosophy, The Post-Sovereign Constellation, Springer, Law and Philosophy Library, Volume 93, Dordrecht, 2011, p. X. 188 In other words, Dworkin’s theory challenges legal positivism, from which emerges MacCormick’s thinking. On the most current assumption of legal positivism, compare: Massimo La Torre, Constitutionalism and Legal Reasoning, op. cit., Stelmach, B. Brożek, Metody prawnicze [Legal Methods], op. cit., pp. 271–272. 189 Neil MacCormick, H. L. A. Hart, second edition, Stanford University Press, Stanford, 2008, p. 39.

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institutional order. The core idea here is that ‘norms belong within normative orders, of which some are, and some are not, institutional in character’190. The most profound example of a normative institutional order is modern law, whereas morality belongs to the domain of a non-institutional191 normative order. Moreover, MacCormick discusses an institutional order that lacks a normative character, which is politics. An institutional order is envisioned by MacCormick as follows: ‘politics is a matter of power, of the actual exercise of power within human societies or communities, and of elaborating principles for the proper exercise of power. Political power is the power to direct social agencies and individuals to certain defined ends presumptively for the common good, to exercise control over available goods (economic and non-economic) and to determine or influence their distribution among persons and groups’192. As one may see, in contrast to Habermas, he depicts politics as a medium through which legal (normative institutional) settlements are applied according to the social reality and multiple relations of diverse kinds among the citizens. This is quite an important shift that he explains as follows: ‘one of the merits of using the concept of institutional normative order is that one does not automatically, from square one, so to say, privilege the state as the locus of law’193. The MacCormickian understanding of law, inevitably drawing on the functioning of the ancient mode of law and the idea of an ‘institution’ as its basic element, so characteristic of Roman law, exceeds the narrow, state-oriented thinking of law and thus the conceptualisation of the legal system, and its order paradoxically pushes forward the modern thinking of law. Crucially, he liberates, so to say, thinking of law in terms of its legal order, or more precisely, in terms of ‘a set of law-making and law-applying institutions and associated practices and attitudes, which, in a mutually reinforcing way, ensure the systemic quality of that normative order’194. It is in this shift, which is elegant in its simplicity, that MacCormick founds the idea of legal pluralism195.

Neil MacCormick, Questioning Sovereignty, op. cit., p. 1. Ibidem, p. 1. Ibidem, pp. 11–12. Neil MacCormick, “MacCormick on MacCormick”, op. cit., p. 19. Neil Walker, “The Cosmopolitan Local”, in: Augustín José Menéndez, John Erik Fossum (eds.), Law and Democracy in Neil MacCormick’s Legal and Political Philosophy. The Post-Sovereign Constellation, Springer, Law and Philosophy Library, Volume 93, Dordrecht, 2011, p. 8. 195 Neil MacCormick, Questioning Sovereignty, op. cit., Chapters 7 and 8. 190 191 192 193 194

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Importantly, politics is not something that happens beyond institutional settings. If one then claims that politics does not have normative traits, then one in fact questions, on one hand, political institutions, including legal institutions like the legislature, executive or even judiciary, and points at disclosing whether they are underpinned by the legal (normative institutional) principles; on the other hand, since politics also means the processes of communicative decision-making, the question must also be posed as to whether there is any relation (and if there is, then what is its nature?) between the normative order and the institutional order. In sum, he questions public-institutional work and seeks its normative credentials. The normative institutional order is characterised, in his view, by three kinds of rules: (i) an institutive rule, accordingly to which ‘the occurrence of a certain (perhaps complex) act or even a specific instance of the institution in question comes into existence’196; (ii) consequential rules that constitute a certain setup of rules that appear as the consequence of an instance of the institution coming into existence to which those rules are related197; (iii) terminative rules, which, in every case, are correlated with the existence in time of an instance of the institution, and therefore determine when an instance of the institution terminates due to the consequences of its actions198. Crucially, the specific positivist imprint may be seen here in the method which MacCormick employs, that is, an ‘explanatory definition’199. On the contrary to the above depicted normative institutional order, a ‘normative order is a kind of ideal order’200. Importantly, with regard to ‘such an order it is possible to establish the difference of right and wrong in action’201. Thus, it is quite significant now that MacCormick, in his analysis concerning Hart’s philosophy of law, comes to a conclusion about what is needed for a profound deliberation of moral issues, which are, in fact, values and not norms. This means that in MacCormick’s view, the normative order, as such, is not the ultimate and most important or prominent premise, because it is supposed to take into account

196 Neil MacCormick, Otta Weinberger, An Institutional Theory of Law. New Approaches to Legal Positivism, D. Reidel Publishing Company, Dordrecht, 1986, p. 52. 197 Ibidem, pp. 52–53; ‘To put it generally, for each institution there is a set of rules of which an operative fact is that an instance of the institution exists’, p. 53. 198 Ibidem, p. 53. 199 Neil MacCormick, “MacCormick on MacCormick”, op. cit., p. 18. 200 Neil MacCormick, Questioning Sovereignty, op. cit., p. 3. 201 Ibidem, p. 4.

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those values202, whereby the ideal of a normative order is by no means ‘neutral’203. From this, it follows that since there are ‘values as fundamental elements in all human consciousness’204, then norms—considered to be at the level of a normative order—must deal with diverse values and, stemming from them, preferences205 and eventually, the normative order is supposed to solve cleavages and discrepancies concerning what one ought to do in certain circumstances. The preliminary conclusions concerning the understanding of the normative order follow that since values are the most important underpinnings of norms constituting the normative order, and the normative order is never ‘neutral’, then we may presume that there is a plurality of norms dealing with certain values and potential conflicts among them. In addition, due to the assumptions that (i) diverse values underpin the norms constituting the normative order and (ii) the norms are in need of interpretation related to particular contexts raising questions of conduct, one may see that what may appear, at least from time to time, is a ‘disagreement over the interpretation of norm’206. That disagreement may also appear with regard to the normative institutional order and its norms, and it may contribute to debating (balancing to a certain extent207) and developing further interpretative arguments including rival arguments that always exist208, to consider ‘rival interpretations’209 and rival theories210 as well as

202 Neil MacCormick, H. L. A. Hart, op. cit., p. 64ff. The point is that MacCormick extracts the idea from Hart’s conception, and because it is not so easy to agree with this interpretation as the interpretation of Hart’s philosophy, it should be ascribed to the MacCormickian concept of the normative order rather than to Hart. 203 Ibidem, p. 4. 204 Ibidem. 205 Neil MacCormick, Practical Reason in Law and Morality, Oxford University Press, Oxford, New York, 2008, p. 22: ‘The judgement of what is worthy of our care, concern, attention, and action is a judgement in the realm of the “ought”, though not in the realm of ‘duty’ as such. It is universalistic in a weaker way than the judgement of duty. What is worthwhile for me must be worthwhile for anyone—but not for everybody’. 206 Lars Christian Blichner, “Juridification from Below: The Dynamics of MacCormick’s Institutional Theory of Law”, in: Augustín José Menéndez, John Erik Fossum (eds.), Law and Democracy in Neil MacCormick’s Legal and Political Philosophy, The Post-Sovereign Constellation, Springer, Law and Philosophy Library, Volume 93, Dordrecht, 2011, p. 37. 207 Neil MacCormick, Rhetoric and the Rule of Law. A Theory of Legal Reasoning, Oxford University Press, Oxford, New York, 2005, p. 186. 208 Ibidem, p. 154. 209 Ibidem, p. 54. 210 Ibidem, p. 154.

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(rival) value-judgements211 which also relate reasons as justifications of rulings212 that aim at ‘seeking to solve contradictions [in the law] as they emerge’213. In other words, solving a problem concerning conflicts of the values underpinning the normative order may proceed basically via its specific judgemental-interpretative institutionalisation that leads towards constructing diverse institutions of law pertaining to ‘different branches of law [that] focus on different values or clusters of values’214, in the sense that ‘each branch of law has, when studied in detail, a set of value orientations’215, and crucially, ‘it is against those very values that we test and eliminate rival rulings in problematic cases’216. These diverse institutions belonging to certain branches of law inevitably face multiple problems and—importantly—do not answer the totality of such value-problems embedded in the normative order against which they operate as pertaining to the institutional normative order; that is, they do not claim the universal unity of responses to value-problems, because, as the Scottish philosopher argues, ‘law does not, of course, have conclusive moral value’217; however, these institutions of law offer responses referring to branch-values218. Hence, these are two issues that I find most intriguing and worth further in-depth investigation to extend this paper. First, the presented standpoint on the values underpinning the diverse branches of law (conceived here as a normative system) entails, as Nico Kirsch argues, ‘institutional pluralism’219; although the consistency of law and the universality of 211 Ibidem, p. 77: ‘Every statement of law, both in judicial justifications and in doctrinal commentaries, rests at least on an implicit, and often on an explicit and articulated, interpretative argument. Such arguments presuppose, and often articulate value systems and value judgement’. 212 Ibidem, p. 114. 213 Ibidem, p. 54. 214 Ibidem, p. 113. 215 Ibidem, p. 114; see p. 254. Union law functions in this way; see Flavia Carbonelli, “Coherence and Post-sovereign Legal Argumentation”, in: Augustín José Menéndez, John Erik Fossum (eds.), Law and Democracy in Neil MacCormick’s Legal and Political Philosophy, The Post-Sovereign Constellation, Springer, Law and Philosophy Library, Volume 93, Dordrecht, 2011, p. 173. 216 Neil MacCormick, Rhetoric and the Rule of Law, op. cit., p. 114. 217 Ibidem, p. 13. 218 Ibidem, p. 114: ‘The values against which it is proper to test juridicial consequences are those which the branch of law in question makes relevant’. 219 Nico Kirsch, “The Case for Pluralism in Postnational Law”, in: Gráine de Búrca, J. H. H. Weiler (eds.), The Worlds of European Constitutionalism, Cambridge University Press, Cambridge, New York, 2012, p. 222.

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the reasons justifying the judgements are for MacCormick of irreducible value, it must be clarified that he advocates for the ‘defeasible universality’220, to which I will return shortly, at the end of this section of the chapter. The aforementioned statements mean, first, that there may be diverse chains of institutions of law (pertaining to appropriate branches) answering bulks of value problems or preference problems or at least interest problems. In other words, the institutions of law that are underpinned by the tacitly presupposed plurality of values221 form a certain legal plurality within ‘a common legal universe governed by the norms of international law’222. This presumption of the plurality of values that are ‘imperfectly commensurable’ traces its heritage to positivism, as MacCormick himself admits223. Second, then, is the One Right Answer Thesis, which MacCormick resists endorsing, may be eventually acceptable only under the presupposition that it is always contestable. I will investigate this in greater detail in what follows. Undoubtedly, MacCormick’s stance on the normative order is not yet uttered without leaving room for doubt, and thus it still calls for closer scrutiny. When attending to the issue of the normative order, the Scottish thinker most often gives the example of the spontaneous forming of a ‘queue’ (or a ‘line’) that happens often in everyday life224. In his view, this forming of a queue represents a common, conscious and (externally) unconstrained225 action that aims at the realisation of a shared normative opinion226 which, importantly, does not have to be universalistic in nature but an opinion about how one ought to act227. This action proceeds due to 220 Neil MacCormick, Rhetoric and the Rule of Law, op. cit., p. 94. 221 Compare John Erik Fossum, “Nationalism, Patriotism and Diversity—Conceptualising the National Dimension in Neil MacCormick’s Post-sovereign Constellation”, in: Augustín José Menéndez, John Erik Fossum (eds.), Law and Democracy in Neil MacCormick’s Legal and Political Philosophy, The Post-Sovereign Constellation, Springer, Law and Philosophy Library, Volume 93, Dordrecht, 2011, p. 274: ‘Law, in contrast, being a normative order, is not value-free or ethically neutral and as such resembles ethical morality’. 222 Neil MacCormick, Questioning Sovereignty, op. cit., p. 117. 223 Neil MacCormick, Rhetoric and the Rule of Law, op. cit., p. 116. 224 Neil MacCormick, Institutions of Law. An Essay in Legal Theory, Oxford University Press, Oxford, New York, 2008, pp. 13–14; Practical Reason in Law and Morality, Oxford University Press, Oxford, New York, 2008, pp. 51–52; “Norms, Institutions, and Institutional Facts”, Law and Philosophy 17, May 1998 (pp. 301–345), here pp. 306–307. 225 Neil MacCormick, “Norms, Institutions, and Institutional Facts”, op. cit., p. 312. 226 Neil MacCormick, Institutions of Law, op. cit., p. 15. 227 He says about ‘the same idea of the right thing to do’; Neil MacCormick, “Norms, Institutions, and Institutional Facts”, op. cit., pp. 306–307.

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a certain interpretative practice, yet not due to any canonical formulation228 of how one ought to form a line. From this, it follows that this common action-taking also means the coordination of the action, since it is underpinned by the shared idea ‘of the right thing to do’ and, as is quite relevant here, it functions satisfactorily even if it is not perfect229. With regard to this, he states that ‘sometimes normative order is, or is in part, “informal normative order”’230 and, as such, indicates the first move conventions, which are ‘the implicit norms of informal normative order’231 in the second move. At stake here is MacCormick’s elementary claim that we, basically, ‘by nature [are] norm-users’232. What does this mean? And how does it relate to the previous scrutiny of the normative order as underpinned by values? He explains as follows: ‘the moral is that we humans are norm-users before we are norm-creators. If so, it follows that our sense of duty and obligation to each other is and has to be prior to any authoritative imposition upon us’233. But what does this mean precisely? There are at least two ways of understanding the sense of the statement that we are originally norm-users. The first one may indicate the rationality of human action as a precondition of the action itself. Therefore, the statement may convey that we must primarily be rational, in the sense of being rule-followers, in order to—in the next move—ask about the reasonableness of the rule-driven action, or the rule itself. This interpretative strategy would be quite similar to the one we may apply to Ulpian’s formulation of justice. If ‘justice is the constant and perpetual will to render to every man his due’, then justice refers, first of all, to a certain order that clarifies the predictability of the (legal) assessment of actions, whereby one is clear about what s/he is—or is not—allowed to do. Then, in the second move, the question may be posed as to which order is just, questioning what requirements such an order must meet to actually be just—to be a normative order. For example, invoking Ulpian once again, it should enable its addressees ‘to live honorably, to

228 Ibidem, p. 309. 229 Neil MacCormick, Institutions of Law, op. cit., pp. 14–15; ‘queuing is a socially located and essentially interpersonal activity that is oriented to a common normative opinion. But the common opinion does not presuppose any single common prearticulation of the norm at the heart of the normative opinion’, ibidem, p. 15. 230 Neil MacCormick, (Norms, Institutions, and Institutional Facts), op. cit., p. 309. 231 Ibidem, p. 309. 232 Neil MacCormick, Institutions of Law, op. cit., p. 245. 233 Neil MacCormick, Practical Reason in Law and Morality, op. cit., p. 29.

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harm no one, to treat all persons with the respect due to them’234; otherwise, behind the order, one may find pure power. Furthermore, since MacCormick explicitly gleans insight from Roman law, it would seem at least partly justified to explain the meaning of the claim that we are norm-users. In addition, with regard to these three basic requirements, it seems much clearer why the Scottish thinker states that ‘justice, or at least justice according to law, is a rather complex function of the lines between rightness and wrongness, and responses to actions that cross them, and it ranges across the whole set of relevant values’235 as it should cope, respectively, with the ideas of at least (i) the honest—or good—life, (ii) equal respect for the diverse pictures of the former and (iii) equal respect (fair and impartial treatment) with regard to how one performs the latter—or rightness, in other words. I think, however, that this would only be a partly fitting response, for the other possibility which states something in addition to this first possibility must also be taken into account. Namely, in view of MacCormick, I contend that we need to pay heed to the crucial link between the stage of the mere rationality of action (rulefollowing) and the stage of the normativity of action-taking (norm-usage). This crucial link is conceived as judging, that is, as the power of judgement. Moreover, I would even argue that judging levels the concept of mere rationality that is here embedded in the rule-following at the level of morality—as MacCormick claims in the above-quoted paragraph—depicted as norm-usage. Importantly, in order to judge something in a moral sense, we need to find ourselves in an intersubjective context236 which would be deemed as a locus of moral judgement itself. Actually, the Scottish philosopher strongly insists that ‘as autonomous moral agents (…) we more resemble (…) judges’ than legislators237. Thus, two matters must be underscored in this context. The first is that MacCormick’s considerations on morality and its relation to law lean on the power of judgement, whose locus is intersubjective. However, second, the power of judgement is not yet a public power of judgement. The latter harbours a quite relevant problem: as the power of judgement is not a public power of judgement, it cannot be seen as a direct source of the legitimation of the law; in order words, its

234 Neil MacCormick, Rhetoric and the Rule of Law, op. cit., p. 115; translation of ‘honeste vivere, alterum non laedere, suum cuique tribuere’ intentionally follows the one proposed by MacCormick, see his reference 35. 235 Ibidem, p. 113. 236 Neil MacCormick, Practical Reason in Law and Morality, op. cit., p. 16. 237 Ibidem, pp. 4, 19, 57–68; Neil MacCormick, “MacCormick on MacCormick”, op. cit., p. 20.

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non-public or rather private character generates a gap between the private judgements which people make in everyday situations and office holders’ official judgements238. Consequently, ‘there is still a conceptual difference between law and democracy’239 in MacCormick. This is a very important issue, in my view, because this post-positivist thinker’s stance claims that not so much the social practice (considered as a fact) but the moral practice of judging constitutes the backdrop of law, and it is the judgementalinterpretative communication that generates the great force of social integration. To put it more clearly, rather than the outcomes of the interpretative-judgemental activity, this activity itself generates the basal power for social integration and the inclusion of others. The rehabilitation of this critical reflective attitude constitutive of morality, as Augustín José Menéndez argues, continues the Hartian project to the extent that it ‘reveals that coercion is only one of the legal techniques of social integration, but it also makes explicit the extent to which coercion cannot, by itself, found a legal system, or ensure the stability of the legal system’240. However, as Menéndez aptly underlies, it also exceeds this project because it leads MacCormick to claim that ‘law must, indeed, be understood and theorised not from the standpoint of institutional actors, but from that of addresses of law, i.e., citizens’241. This reading, I hope, although it may perhaps be confusing at first, sheds some light on the confession made by the legal philosopher himself: ‘I am not entitled to call myself a natural lawyer (…) but I am no longer a positivist, but a postpositivist’242. Why does MacCormick consider calling himself a natural lawyer at all? Actually, since the moral practice of judging with regard to the values underpinning norms constitutes a normative source of institutional normative

238 Jeremy Waldron writes on the Janus-face feature of this gap in “Legal Judgement and Moral Reservation”, in: Augustín José Menéndez, John Erik Fossum (eds.), Law and Democracy in Neil MacCormick’s Legal and Political Philosophy, The Post-Sovereign Constellation, Springer, Law and Philosophy Library, Volume 93, Dordrecht, 2011. Compare Neil MacCormick, Rhetoric and the Rule of Law, op. cit., p. 100, where MacCormick identifies judges’ justifications of rulings as ‘public reasons’. 239 Lars Christian Blichner, “Juridification from Below…”, op. cit., p. 50. 240 Augustín José Menéndez, “From Constitutional Pluralism to a Pluralistic Constitution? Constitutional Synthesis as a MacCormickian Constitutional Theory of European Integration”, in: Augustín José Menéndez, John Erik Fossum (eds.), Law and Democracy in Neil MacCormick’s Legal and Political Philosophy, The Post-Sovereign Constellation, Springer, Law and Philosophy Library, Volume 93, Dordrecht, 2011, p. 214. 241 Ibidem, p. 216. 242 Neil MacCormick, “MacCormick on MacCormick”, op. cit., p. 24.

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order, he states that ‘it is more plausible to think that the good moral agent is the model that well-designed judicial systems seek to institutionalise’243; however, of course, in no case is the mere judging ‘all-important’244 (that is, neither with regard to morality nor legal law, and the contribution on the part of the norm-giving power must be taken seriously, too). In other words, what becomes institutionalised in the institutional normative order is basically the argumentative-judgemental feature of moral reasoning, only upon which the norm-giving comes into play and becomes constituted. In this context, Lars Christian Blichner rightly emphasises that ‘from the norm-users perspective, law that cannot be reasonably defended in public is not law’245; however, it is not enough, I would argue, to state that law is ‘intrinsically arguable’246, because the most important statement made by McCormick with regard to the issue in question is that both law and morality are supported by the practical-judgemental reasoning of the same genus247. Therefore, I cannot entirely agree with Blichner, neither when he claims that in MacCormick, ‘without pre-legal social order, a legal order would not be possible’248, nor when he states that the ‘institutionalisation of “norm-usage”’ is decisive for the ‘transition from normative order into institutional normative order’249. The regularity of actions that are maintained and sustained due to the shared standards of behaviour conceived as shared-rules-following is solely a moment of understanding a kind of action that underpins the institutional normative order. The other moment consists of an interpretation of action as well as of shared rules that are followed, and it is inevitably interrelated with the autonomous judgement over them; however, it comes here about making the judgement that takes into account others involved in the action250—and this eventually means indeed norm-usage. In fact, the concept of norm-usage entails the informal recognition of ‘ought’—whether or not this applies in a particular case—and it takes the

243 244 245 246 247 248 249 250

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Neil MacCormick, Practical Reason in Law and Morality, op. cit., p. 66. Ibidem, p. 198. Lars Christian Blichner, „Juridification from Below…”, op. cit., p. 34. Neil MacCormick, Institutions of Law, op. cit., p. 260. Neil MacCormick, Practical Reason in Law and Morality, op. cit., p. 4. Lars Christian Blichner, „Juridification from Below”, op. cit., p. 32. Ibidem, p. 31. As MacCormick highlights, ‘the demands of morality are demands on behalf of persons other than the one who is deliberating. (…) Impartiality between oneself and others is difficult to cultivate, but it is fundamental to morality’, Neil MacCormick, Practical Reason in Law and Morality, op. cit., p. 16.

form of an interpretation that may be deemed, due to MacCormick’s breadth and scope of considerations, a collaborative interpretation, even if it proceeds in the informal mode (we reflectively coordinate actions due to said requirements of impartiality). With regard to this view, we confront our interpretations with others’ interpretations or even collaboratively construct them and then judge them, due to the values and preferences which we hold, in light of our beliefs about how one ought to perform. Thus, I contend that what MacCormick intends to utter is the conviction that our everyday practice is by no means free from critical attitude-taking, from interpretations, judgements and normative reflections. In other words, the root assumption to be uncovered in the Scottish thinker’s reflections is that a democratic constitutional polity shall recognise these everyday critical-normative practices that back up the democratic institutions, and the idea of such a polity shall lean on such everyday practices as well as the respective institutional interpretative practices, because the latter constitutes an institutionalised extension of the former, aiming at the collaborative construction of better responses to problems. The objective here is to refuse the claim that people do not reflect in a critical-normative fashion, unless they are faced with ‘big issues’; on the contrary, it seems that for MacCormick, the original attitude of each human being is a reflective, critical one. However, this is not yet the end of the story about norm-usage. One may try to challenge this interpretative strategy even by pointing out the above quoted passages from MacCormick, in which he states that we are norm-users in this sense that convention comes first, that is, some shared standard of behaviour propels our actions and later on an autonomous judging occurs; in the sense which I am advocating here, it might meaningfully start to play a significant role in explaining the term ‘norm-usage’. I concede that to a certain extent, this is true. For there is still one more issue waiting to be framed and displayed in the context of current analyses, namely, collaboration or cooperation. How is that related to the claim that we are primarily norm-users? Does it cast any prominent role at all with regard to the normative order? My answer to these doubts is positive, and I think that we should trace back to chapter five of H.L.A. Hart to find key insights. The main problem under scrutiny in Morality, Positive and Critical is exactly the cooperation between human beings. As a positivist, Hart holds onto social practice as the source of the emergence of law. As stated above, MacCormick turns his philosophical investigations towards moral-practical argumentation as the crucial trait of human practice to be institutionalised in the law; nevertheless, he is aware that it is not enough to think of the legal system as a medium of integration in modern societies. Therefore, he presumes—due to the great insights

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elaborated in the said chapter, hence only partly following Hart—that human cooperation must be always already assumed, and thus it should be understood as that which has already been in action, which has already proceeded among human beings, because morality basically stems from cooperation, and its lancet, in the Scottish philosopher’s view, is ‘anti-protestant’ when related to the presumed sources of morality. More precisely, the crux of the claim that human beings are originally normusers251 offers crucial insight into moral issues: the insight into the constitutional for human beings’ reasonableness that primarily takes the shape of cooperation. Paradoxically, then, one might say, MacCormick extensively draws on positivistic heritage and comes inevitably very close to—but undoubtedly quite autonomously in his thinking, and hence it is hard to state whether deliberately or not—the basic philosophical insights and claims made by John Rawls in his Political Liberalism252 (yet, unsurprisingly, due to the previously tacitly presumed, and in the late writings explicitly articulated by MacCormick, pluralism of values). I cannot delve deeper into this issue here, but it must be emphasised strongly that I, nevertheless, would not like to state that MacCormick draws on Rawls in any visible way (the point is rather that they both, in their late writings, draw extensively on David Hume); rather, I would like to state that quite similar to Rawls, he presumes that the reasonableness originally refers to cooperation, which means exhibiting behaviour with regard to shared norms or standards of behaviour253. Naturally, these shared norms are to be examined due to the idea of justice, at least in Rawls, but to be able to scrutinise the idea in that direction, we must have already presumed that all interested parties understand the idea of justice as such, so they have already had at least a sense of justice, which Rawls had already elaborated in A Theory of Justice254, but MacCormick also independently, as it seems, recalls255. In order words, the previous reference to the reading of Ulpian’s definition of justice as guiding MacCormick’s claim that we are originally norm-users may be reformulated as follows: the idea of law draws on the idea of justice that, first of all, presumes human beings as those who have already cooperated and now

251 Ibidem, pp. 193–194. 252 John Rawls, Political Liberalism. With a New Introduction and the ‘Reply to Habermas’, Columbia University Press, New York, 1996, basically Lecture II. 253 Neil MacCormick, Practical Reason in Law and Morality, op. cit., p. 19. 254 John Rawls, A Theory of Justice, Oxford University Press, Revised Edition, Oxford, New York, 1999, basically Part One. Theory, Chapter I. Justice as Fairness. 255 Neil MacCormick, Rhetoric and the Rule of Law, op. cit., pp. 134, 139.

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ask—and are capable of judging autonomously—about the fair or, as MacCormick would rather say, impartial terms of cooperation256. Importantly, the direction of this questioning is inevitably bottom-up in its design. What is at stake here is the problem of universalisation, its breadth and scope and formation. With this in mind, I argue that MacCormick indeed understands morality as a specific claim to the universalizability of action norms257; nevertheless, such claims are differently expressed due to the diverse paradigms undoubtedly pertaining to moral philosophy (in this sense, for example, deontology and utilitarianism are also such paradigms). Therefore, reading MacCormick in terms of discourse theory would, in my view, seem like simply imposing a strange tool kit on his original considerations. In my opinion, MacCormick understands morality rather as the present perfect of cooperation that seems to be based on the requirement of impartiality due to the presumption of the already mentioned sense of justice which, together with the power of judgement, triggers bottom-up moral considerations (that is, considerations always stemming from a particular context that raises a moral dilemma) and, eventually, the norm-giving momentum as a basis for autonomous self-conduct. He arrives at this understanding without a tool kit designed to build the project of un-doubtful universalizability258; moreover, in fact, he does not seek it, as he instead argues for ‘defeasible universality’259. He exemplifies the perfect son of 256 Neil MacCormick, Practical Reason in Law and Morality, op. cit., p. 9: ‘the criticalrational discussion depends on an understanding of real people as they have really acted in the past and go on acting now. (…) Without empathy there is no understanding of (other) people as people. Without understanding of other people, there is no self-understanding’. 257 Compare Marina Lalatta Costerbosa, “Some Reflections on the Relationship Between Law and Morality – Neil MacCormick’s Point of View”, in: Augustín José Menéndez, John Erik Fossum (eds.), Law and Democracy in Neil MacCormick’s Legal and Political Philosophy, The Post-Sovereign Constellation, Springer, Law and Philosophy Library, Volume 93, Dordrecht, 2011, p. 100 ff. 258 It must be clear here that I do not claim that MacCormick ignores the problem of universalisability in the justification of judgements. He explicit states that ‘universalizability is essential to justification’ (Neil MacCormick, Rhetoric and the Rule of Law, op. cit., p. 198), but the point is how, in philosophical terms, to (re)construct such a procedure and what we assign to such a concept (not to a mere word); thus, I contend that such a construction draws more on Scottish (bottom-up) than German (top-down) Enlightenment in MacCormick. 259 Ibidem, p. 94. MacCormick’s previous considerations regarding the concept are of no importance here because they add nothing new or relevant; Neil MacCormick, Institutions of Law, op. cit., pp. 163–166.

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Scottish Enlightenment rooted in empirical investigations regarding morality, or at least investigations rooted in moral sentiments, that are always, if not individualistic (and in this sense may be universalised or ascribed to all human beings) than at least context-dependent with regard to the point of departure of moral considerations. As MacCormick asserts, ‘the practical character of morality is sufficiently guaranteed by its having this sentimental basis’260, and universalizability understood as a certain procedure or test is unable to reach this moral basis261. Therefore, universalizability, as he understands it, regards the ‘grounds of decision’262. Second, however, such a decision must take into account the particularity of the case under consideration and discern cautions263. Third, as one may see, this universalizability comes into play in the application of the law and does not refer to the legitimation of the law (system of law), which draws a clear distinction in comparison to Habermas. Fourth, then, MacCormick states that legal reasoning, which is what is at stake here, ‘is grounded in the pre-established law in some appropriate way. Hence the universalization that goes on in law is in a context that is already law-defined in large part’264, it is ‘not a justification at large and without limits’265; therefore, it would not be surprising that this universalisation is syllogism-related. However, the point is that what Habermas is interested in is precisely the construction of such universalisable normative claims, and this issue occurs out of scope, in fact, for both MacCormick and Dworkin, because even the latter states simply that judges and office holders of a certain kind just recognise political principles and, due to these recognised principles, construct an overarching theory of the institutional history that best fits the justification of a decision in a certain hard case. Hence, it must be emphasised, in this context, that for MacCormick, ‘we can only treat such a process of justification as implying rather than stating a universalized propositions of law’266. Finally, quite naturally, if a problematic (hard) case challenges the law in the sense of its norms, then one must look for such universally justifying reasons that are deemed legal principles. Nonetheless, it would be merely a kind of reliance on appearances to claim that the MacCormick’s stance gravitates towards the

260 261 262 263 264 265 266

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Neil MacCormick, Practical Reason in Law and Morality, op. cit., p. 57. Neil MacCormick, Rhetoric and the Rule of Law, op. cit., p. 21. Ibidem, p. 78. Ibidem, pp. 89–90. Ibidem, p. 100. Ibidem, p. 150; Neil MacCormick, Institutions of Law, op. cit., p. 246. Neil MacCormick, Rhetoric and the Rule of Law, op. cit., p. 159.

Dworkinian stance—despite the fact that the former sometimes writes in the vein of a thinker seduced by another thinker’s arguments, but that I find a kind of sound courtesy provoking an equally sound response—because MacCormick openly admits that he does not find convincing the difference, introduced by Dworkin, between principles and policies (the difference accepted by Habermas). Further, the fashion in which he argues against such a difference makes his standpoint different from those of both Dworkin and Habermas. He states that he agrees with Dworkin that ‘rightness and goal orientation are two sides of the same coin’267 (but it is doubtful whether Dworkin would accept this view without restrictions); nonetheless, MacCormick continues, ‘not to the point of accepting this stipulative distinction of policy and principle. Are not values of the law capable of being considered a kind of standing policy? That judges pursue them under the constraint of universalizability entails indeed that their decisions must always be decisions of principle. But this does not mean that such decisions require pre-identification of rights as a route to finding principles. I should rather say that legal rights are consequential upon than presupposed by the decisions of principle we make in law. That some of the deepest values of law are now enshrined in documents like the Charter of Fundamental Rights of the European Union [EU] does not undercut this point.’268 One may clearly see that MacCormick does not conceive of principles as justifications of legal rights understood in a deontological fashion269, that is, in the way that Habermas and Dworkin do so, and what is in both cases a core expression of universalizability, although differently conceptualised in the cases of the German and American philosophers. However, what remains intriguing is the important claim which seems to be hidden behind the above quotation. In that regard, MacCormick appears to argue that principles cannot be imposed from the topdown perspective of an institutional normative order that forms rather, as I stated before, ‘chains of institutions’ (that are always at least partly hierarchical) focused around the branches of law270. The point is that contradictions in the law at this 267 Ibidem, p. 120. 268 Ibidem. 269 Crucially, MacCormick identifies, to a large extent, principles with values, see ibidem, p. 192. 270 When I use the term ‘institution’, I by no means conflate it with organisations dedicated to exercising the law and so forth; the opposite is crucial in MacCormickian thinking, namely, that such ‘chains of institutions’ (that are also partly hierarchical) enable a judgemental-interpretative cooperation that does not have to stick to one country, one national law, etcetera; chains of institutions may spread on the global

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level—stemming from the plurality of values that are ‘imperfectly commensurable’—are supposed to be overcome, to be solved due to ‘defeasible universalizability’. In addition, taking for granted that it is impossible to build ‘a complete and wholly satisfactory theory of the interpretation of an entire legal system’271 because law includes contradictions272, it becomes apparent that the need for real problem-solving in law does not require the imposition of one coherent theory of the entire body of law in the process of the applying the law (neither justification). Quite the contrary, it rather calls for departing from, as MacCormick indicates, ‘commonplaces’ and reaching new, perhaps broader and deeper commonplaces— articulated, then, in terms of principles—and perhaps, even in a certain analogy, always partially overlapping consensus, as advocated by Rawls. It seems that MacCormick sees universality in the activity of legal reasoning rather than in a consensus over the theory of the body of law. Does this mean that human rights discourse is meaningless for him? The opposite seems true; he would rather call for cooperative investigations that are greater in breadth and scope, towards their understanding in legal terms, due to the basal sense of justice presumed to be shared that characterises human beings. And it is precisely this sense of justice and the cooperation and impartiality of judgements that it entails that seems to defend the law—in MacCormick’s view—against its unification that implies moralisation as well as killing the power of judgement with kid gloves. In consequence, as much as universalisation is necessary for the formulation of a judgement, it is always unfinished or uncertain with regard to its outcome, because it must be presumed that new interpretations of a problem may arise and other judgements may always be better justified. Crucially, then, as the son of the Scottish Enlightenment, MacCormick binds morality foremost with decisionmaking and action-taking, rather than with ‘pure’ reasons for action considerations. Therefore, Hume’s will, as opposed to Kantian reason, is morally more relevant for MacCormick, in the sense that a ‘judgement is, however, an act of will not solely of reason’273. In other words, drawing on the tradition of moral philosophy of the Scottish Enlightenment, he seems to argue that ethical persons, that is, those who realise a certain set of values, or who are characterised by reasonable comprehensive doctrines, once more recalling the Rawlsian concept, are those

scale, argumentatively filtering rival reasons underpinned by value pluralism and generating more and ‘deeper’ commonplaces. 271 Neil MacCormick, Rhetoric and the Rule of Law, op. cit., p. 54. 272 Ibidem, pp. 53–54. 273 Neil MacCormick, Practical Reason in Law and Morality, op. cit., p. 20.

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who—due to the present perfect of cooperation presuming a sense of justice that casts here the role of the moral concept—are actually interested in cooperation on fair terms with other ethical persons and within the judgemental-argumentative settings designed for constructing the common action norms that may bear fruit in a kind of reasonable disagreement274. Alternatively, he names this ‘a fair balance’ expressed in law ‘between those values [that stand behind ethical persons or reasonable comprehensive doctrines] in general terms’275, because it is more likely achievable than consensus. In addition, one may notice, as burdens of judgement increase the importance of the reasonable disagreement among reasonable comprehensive doctrines in Rawls, so, for MacCormick, the said ‘fair balance’, understood as ‘the reasonableness of the provision and of the possible objections to it’276, is crucial, as it is the balance stemming from the reasonable disagreement of the persons involved in ‘attending fairly’277 to the issue in question, and who invoke the plurality of reasonable grounds for formulating their judgements. Attending fairly, then, means paying heed to ‘a fair degree of impartiality’278 during debates over the issue and thus cooperating on fair terms in order to establish a fair balance of grounds underpinned by the values in a provision or ruling that, due to the claim of the defeasibility of the universality of judgements, may always be challenged. As a result, MacCormick clearly argues with Dworkin and with ‘the decisionist conception of rightness in judgement’279. Further, on these philosophical grounds, he seems to be less afraid—as a lawyer who is also a legal philosopher—of the transitions in the law and their implications for the political community than Dworkin is. The endorsement of the reasonable disagreement in the case of law entails, for example, the inevitable dynamic of the plurality of law under international law. Challenging interpretations develops the chains of law, and if they meet the strong requirements

274 Neil MacCormick, Rhetoric and the Rule of Law, op. cit., pp. 117, 163, 261, where he questions the concept directly. 275 Ibidem, p. 171. 276 Ibidem, p. 184. Compare Aldo Schiavello, “Neil MacCormick’s Second Thoughts on Legal Reasoning and Legal Theory. A Defence of Original View”, op. cit., p. 142: ‘According to MacCormick, it is not always possible to identify one right answer; nevertheless, a theory of legal reasoning makes it possible to distinguish between justified solutions and solutions that are not justified’; see also ibidem, pp. 143–144. 277 Neil MacCormick, Rhetoric and the Rule of Law, op. cit., p. 163. 278 Ibidem, p. 167. 279 Ibidem, p. 274.

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of the democratic justifications of the decisions made within them, then they may also be depicted as a medium of normative inclusion280. One thing that seems to escape MacCormick is that this dynamic extorts deeper and broader claims for citizens meeting democratic requirements oriented at discursive participation in diverse institutional settings, in order to normatively support and maintain the pluralistic whole. As the institutional normative order institutionalises the power of judgement, the interpretative-judgemental cooperation and, of course, the norm-giving—so too shall the pluralistic normative order enforce and support the identity of the former and social integration in the medium of law281. Nonetheless, despite the defeasibility282 of the universality of judgements that leads to the fair balancing of the grounds in favour of or against a final judgement, MacCormick is quite aware that judgements must be made while ensuring that the equality of the addressees of law is protected. However, given this theoretical approach, how is this possible? First, it is quite obvious that the institutionalisation of the normative order, or, precisely, of the interpretative-judgemental activity, means establishing the rules of recognition of the authority that issues binding judgements. Hence, as one may see, to a certain degree, legal institutions or chains of institutions are interrelated with the institutional settings and arrangements. In this context, it may be said that ‘every judicial decision, in virtue of the deciding judge’s authority, is right until (if ever) it is declared wrong by some higher judicial authority’283. In other words, the problem of rightness concerning a judgement relates back to the legal authority and institutional settings. Second, however, if a decisionist vision is to be rejected, then we must question the following issues: (i) whether the procedures for selecting and appointing judges meet democratic credentials284;

280 See Tanja Hitzel-Cassagnes, “Are We Beyond Sovereignty? The Sovereignty of Process and Democratic Legitimacy of the European Union”, op. cit. 281 Compare Johan P. Olsen, Europe in Search of Political Order. An institutional perspective on unity/diversity, citizens/their helpers, democratic design/historical drift and the co-existence of orders, Oxford University Press, 2007, Oxford, New York, p. 10: ‘(…) when the law is very precise, perfectly hierarchized, then its addressees have only a little room for free dealing with their purposes, especially in multicultural societies; then the artificial division of possible arrangements in hierarchy must be made: through territory, nationality, social strata or others’. 282 Neil MacCormick, Rhetoric and the Rule of Law, op. cit., pp. 252–253. 283 Ibidem, pp. 270–271. 284 Ibidem, p. 275.

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(ii) whether the procedures leading to the issuing of a certain ruling meet the condition of the reasonable and cooperative-judgemental balancing of the plurality of the grounds which the ruling should reflect; (iii) whether the meaning of the sources of law should be examined, as the idea of institutions taken in legal terms exceeds in its meaning the breadth and scope of the activities performed in each institutional setting and opens up an intersettings cooperation dedicated to reaching the cooperative interpretativejudgemental fair balance that is to be uttered in rulings and/or, importantly, in provisions. Putting it differently, this is because this idea narrowly exceeds the conceptualisation of law, that is, in relation to the concept of national territories, and introduces an idea of legal pluralism that questions the source of national versus international law285. That issue renders careful, necessary and urgent in-depth considerations with regard to Union law, since the latter extensively draws its principles—written or unwritten—from the common constitutional cultures of its Member States, and thus draws them from the ‘pre-established priority order’286, while MacCormick directly presumes that the universality of the reasons justifying legal judgements is originally expressed in that which is already established (be it provisions or rulings— but in the context of the latter, one may question whether European Courts’ rulings should be taken into account exclusively, or should the rulings of the (Supreme) Courts of the Members States matter?); (iv) finally, whether institutional settings tailored for interpretative-judgemental fair balance meet democratic requirements pointing at the discursive participation of citizens in political institutions. Consequently, I agree with Menéndez, who argues that: ‘by highlighting the connection between the normative and the institutional imagination of human beings and law, the institutional theory of law not only makes us see European constitutional conflicts as normal, but also stresses that integration cannot rest on law de facto providing one single authoritative answer to all legal problems. The stability 285 As Tanja Hitzel-Cassagnes aptly states in this context, the concept of sovereignty related to a national state ‘is also a negative concept (…) and closing due to its potential to exclude and deny sources of normative claims: claiming to “be” sovereign frequently implies mis-recognition, in the sense that the recognition of conflicting claims is denied. In this latter quality, sovereignty is a pre-reflexive concept’; Tanja Hitzel-Cassagnes, “Are We Beyond Sovereignty?”, op. cit., p. 143. 286 Flavia Carbonelli, “Coherence and Post-sovereign Legal Argumentation”, op. cit., p. 170.

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of Community law does not depend so much on the provision of one right answer through one single master rule, as on the affinity of the legal system and on political deliberation and bargaining, reasoning and decision-making’287. Taking the above for granted, for MacCormick, the plurality of legal orders due to the ‘recursiveness and resilience of the relevant complex of attitudes (…) will not easily lose their separate identity’288 in one (European) universe of legal systems. Thus, they must be each time negotiated in a certain context and due to a certain bulk of issues, as Neil Walker aptly states, on the basis ‘of particular bridging mechanisms negotiated between each other’289. Importantly, if we put aside what MacCormick explains as intellectually ‘seduced’ by Dworkin290, then we may see that as the one universal legal order is hardly conceived, so the peaceful though dynamic and transformative re-shaping of the plurality takes over291. Interestingly, it occurs then, that what is the most interesting and inspiring for MacCormick is MacCormick himself. MacCormick philosophises in his quite independent way, though drawing on his Scottish heritage, thanks to which he is capable of giving us ‘legal pluralism’292.

6. At the Crossroads or Polemical Signposts MacCormick argues with Habermas regarding the significance of the enactment of the EU’s (potential) constitution, when he states that ‘the existence of a constitution is not primarily a matter of the adoption’293, but such an existence is 287 Augustín José Menéndez, „From Constitutional Pluralism to a Pluralistic Constitution?…”, op. cit., p. 226. 288 Neil Walker, „The Cosmopolitan Local”, op. cit., p. 8. 289 Ibidem, p. 9. 290 Neil MacCormick, „MacCormick on MacCormick”, op. cit., p. 21. 291 Neil Walker, „The Cosmopolitan Local”, op. cit., pp. 12–13. Compare Johan P. Olsen, Europe in Search of Political Order, op. cit., p. 65: ‘A politically organized cooperative community has emerged in Europe, in spite of the considerable diversity, because no one has tried to impose a coherent political philosophy with clear, consistent and stable substantive goals and strategies. Integration has succeeded because it has been consensus oriented and has taken place on the basis of a fluid and loosely-coupled order with flexible rules of coordination, consistency and coherence’. 292 J. H. H. Weiler, “Dialogical epilogue”, in: Gráine de Búrca, J. H. H. Weiler (eds.), The Worlds of European Constitutionalism, Cambridge University Press, Cambridge, New York, 2012, p. 288. 293 Neil MacCormick, Institutions of Law, op. cit., p. 46.

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rather a matter of—and on this point, he also argues somewhat with Dworkin— ‘functionality, (…) a genuinely observed source of the genuinely observed norms followed by those carrying out official public roles specified in or under it’294. Therefore, in his view, ‘it is possible to have a functional constitution, even without the adoption of any formal documentary or written constitution’295. Crucially, then, taking this claim for granted, MacCormick contends that the EU already has such a constitution296. Moreover, the constitution, he continues the argumentative strategy, is more durable when it embraces ‘custom, usage and convention’297. These custom, usage and convention constitute the backdrop against which political institutions may legitimately function, because the constitution, as such, needs underpinnings298. These underpinnings spread over the institutional collaborative settings299 and social practice including, importantly and above all, the widespread exercise of the power of judgement on the part of the law addressees, as stated, understood as private persons rather than active citizens300.

294 Ibidem, p. 46. 295 Ibidem, p. 47. 296 Compare Neil MacCormick, The New European Constitution. Legal and Philosophical Perspective, Wydawnictwo Biura Trybunału Konstytucyjnego, Warszawa, 2003; Neil MacCormick, Who’s Afraid of a European Constitution, Imprint Academic, 2005. I will discuss in greater detail the problem of the European constitution and the European constitutional law in Chapter V. 297 Neil MacCormick, Institutions of Law, op. cit., p. 44. 298 Compare Neil MacCormick, Questioning Sovereignty, op. cit., Chapter 9, where, although MacCormick underlines the significance of public discussions as such (even if not directly oriented at opinion- or will-formation), he discerns a democratic deficit of the EU in the secrecy of the actions undertaken by the Commission. Therefore, what should be brought into sharp light, according to the Scottish philosopher, is basically the role played by institutions and institutional office-holders on the issue of democracy in the EU. 299 Neil MacCormick, Institutions of Law, op. cit., pp. 49, 57. It is important to mention that in Questioning Sovereignty, MacCormick still aims at elaborating the fundaments for the post-sovereign conception of the EU Member States with the usage of the Hartian tool kit focused on the rule of recognition. However, he meets there grave problems lying in the impossibility of introducing a clear distinction between the rule of recognition and rules of changes, which he recognises as a consequence of a specific multicentric law-making structure in the EU. From this arises the theoretical impetus for proclaiming a legal pluralism perfectly designed for the processes of the European integration of the law. 300 Compare Jeremy Waldron, “Legal Judgement and Moral Reservation”, op. cit.

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In so doing, MacCormick differs from Dworkin, for whom the recognition of a text as the constitution is supported by the recognition of political principles related to one concept of justice, hence related to the ideal of political integrity as well as justifying individual legal rights. In other words, the Dworkinian argumentative strategy might lead to the following questions: Even if we presume that the Court of Justice of the European Union safeguards individual legal rights—that is, human rights—it is still highly unclear: (i) who or which public institutions and at which level of the European public-administrative structure co-interpret the concept of justice tailored for the EU and/or are responsible for applying this concept within the European commonwealth—or is the Court of Justice left all alone with this highly responsible job? (ii) Actually, at stake is the set or scheme of principles that justify these legal rights; thus, one must ask what we may legitimately understand as the legal background, as the common European constitutional culture. In other words, the who, when and how remain unclear as to the legitimacy to determine, as Fossum and Menéndez put it, ‘the regulatory ideal of a common constitutional law’ of the EU that is ‘fleshed out’ in the concrete norms of the common constitutional norms of the Member States which, on the other hand, articulate the (pending, or, being under construction) constitutional identity of the EU301. (iii) And crucially, are Eurocitizens at least informed of the activities of these institutions302? What kind of a democratic legitimacy is met while recognising the basic setup or scheme of the principles of Union law? All of them seem to be incredibly important issues because, according to Dworkin, judges (for example, from the European Courts and perhaps also from the Supreme Courts of the Member States) should recognise in the justifications of their rulings these very principles of political morality that have already been publicly recognised as such principles303 in order to

301 John Erik Fossum, Augustín José Menéndez, The Constitution’s Gift. A Constitutional Theory for a Democratic European Union, Rowman & Littlefield Publishers, Inc., 2011, Lanham, Maryland, pp. 11, 52. 302 See critically on this issue Johan P. Olsen, Europe in Search of Political Order, op. cit., pp. 34–35. 303 Compare Johan P. Olsen, Governing Through Institution Building. Institutional Theory and Recent European Experiments in Democratic Organization, Oxford University Press, Oxford, New York, 2010, p. 14: ‘Good government implies exercising authority and power in accordance with fairly stable and publicly known principles and rules. (…) “Democracy” is, for example, a vision that does not prescribe specific substantive policy goals. In policy terms democracy is substantively open-ended (…). It is a form of government that prioritizes norms and values that are to a considerable degree consistent with contestation over specific policy outcomes’.

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(iv) safeguard the stability of the European legal order that is, in fact, still emerging or in-the-making. This claim to stability comprehended as balancing order and change is strictly connected to an analysis dedicated to the democratic credentials of the EU and is deemed one of the most important democratic requirements that a government should meet304. Habermas responds to the problem of a constitution for a democratic polity by proposing a code of law-making founded upon the process of the institutionalisation of discourse rules, for he states that ‘law joins forces from the outset with a communicative power that engenders legitimate law’305. On this ground, he further argues that Dworkin’s proposal, built on the four stages of an integrative interpretation (generally reachable only for the judge Hercules) may be deemed solipsistic306. In other words, he accuses Dworkin of not taking seriously enough the principle of democratic sovereignty. As a result, the charge of solipsism means that the Dworkinian approach to investigations concerning legal rights (or basic rights in the Habermasian conceptual template) is not sufficiently democratic, because it is not sufficiently communicative307. In fact, this also applies to the MacCormickian understanding of public spheres, vide, public justifications as made (constructed) basically by office-holders. Thus, it may be stated that the three important theories in question differ from one another on the following issues: a) The Legitimation of Law In view of Habermas, law legitimation is closely tied to the concept of communicative power that undergoes discursive procedures of opinion-formation

304 Johan P. Olsen, Governing Through Institution Building, op. cit., especially pp. 10, 77, 97, 120. Augustín José Menéndez, “From Constitutional Pluralism to a Pluralistic Constitution?…”, op. cit., especially pp. 211, 225–227, 239–240. 305 Jürgen Habermas, Between Facts and Norms, op. cit., p. 169. 306 Ibidem, p. 226. 307 Following Richard A. Posner, one may say that the difference between Habermas and Dworkin results from their different approaches to the same issue, namely, to the indication of the universal principles of law. He argues that the approach of the latter utters the de facto American mechanism of the functioning of law, and the approach of the former, the German one; compare Richard A. Posner, The Problematics of Moral and Legal Theory, op. cit., p. 92. Compare also Tomasz Raburski, “W stronę społecznej teorii prawa”, in: Piotr Orlik, Krzysztof Przybyszewski (eds.), Filozofia a sfera publiczna, UAM, Wydawnictwo Naukowe Instytutu Filozofii, Poznań, 2012.

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transformations into will-formation. In the case of Dworkin, it brings about a very specific interpretative strategy, basically provided in hard cases, which takes into account the political ideal of integrity and the whole body of law together with legal practice. For MacCormick, the most relevant element lies in the interpretative-judgemental cooperation held, most importantly, at the level of legalpolitical institutions, that is, in the construction of shared normative convictions that become recognised in particular branches of law. b) The Source of Law Dworkin understands this in terms of (i) publicly recognised political principles justifying individual political rights, (ii) as interpreted by judges, due to the institutional history of the polity that interpretations must fit. For the German philosopher, the source of law is understood in terms of the co-originality thesis of the rule of law and the principle of popular sovereignty that constitutes the laws of law-making and triggers processes of the self-constitutionalisation of the polity in question. Eventually, MacCormick seems to comprehend the source of law not only—not even primarily—in the momentum of the enactment of law, but, in my view, as stemming from the cooperative judgemental-interpretations of the normative order and its institutionalisation. Therefore, he provides the big picture of the pluralism of the legal system and order and thus of a preliminary theory of Union law. c) The Law-Making In the opinion of the American philosopher, by and large, the law is made by judges and not only by parliamentary bodies. Therefore, in the prominent role is cast the Supreme Court that is supposed to reveal and unfold the individual political rights of citizens as those affected by the law, and also—or rather, fundamentally—the Supreme Court should assure in this way the stability of law based on political principles. Habermas sees the issue quite differently; for him, the Dworkinian proposal seems to be immune to the principle of popular sovereignty and thus blind to the idea of public constructions of reasons. Through the public constructions of the reasons justifying legal decisions308, the rule of law (that protects

308 And in view of Habermas, every such decision has an influence on, or ‘contributes to’, the understanding of basic rights, Jürgen Habermas, “Paradigms of Law”, op. cit., p. 20.

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the equality of all due to the deontological interpretations of basic rights) and the opinions of citizens (that are anchored in lifeworlds and massive contexts of understanding) converge in procedural-institutional settings in order to articulate the will of the citizens. Finally, from the MacCormickian perspective, law-making serves primarily to fairly balance diverse, reasonable reasons in order to dissolve the inevitable contradictions embedded in the law, since the latter is founded upon a normative order underpinned by value pluralism, which is also always reflected in the branches of the institutional normative order. According to Richard A. Posner, in the Dworkinian vision, judges should ‘practice applied moral philosophy’309, whereas Habermas many times repeats that the searched nexus consists of the formal concept of autonomy capable of generating simultaneously the moral and legal principles310. However, Posner sees a kind of theoretical trick in this argument and insists that the said search for the abstract concept of autonomy results from the willingness to reject any philosophical or theoretical position that would be accused of smuggling a totalitarian view into a society, and that is the reason for opting to ‘secure the preconditions for rational inquiry’311 in a mutually cooperative accord. Posner also seems to be dissatisfied that the accord to which Habermas refers may always be only temporal, and thus, sooner or later, it would be in need of revision. However, that is due to the acknowledgement that as human beings, we all are embedded in a certain context of ‘here and now’ and for this reason are ‘limited’, even with regard to decisions on most fundamental issues; thus, the passage of time312 and transformations of our understanding of the issues in question exceed the previous context in which the normative accord was reached. If we focus on the problem of the European constitution, then MacCormick seems to ask, to be long-lasting, what the constitution-making should take into account in order to reveal itself as legitimate and predictable. His answer is bottomup reflective processes. That is the reason why, in his view, reflectively shaped habits play such an important role. ‘Institutionalization of judgement is a fundamental feature of the organization of normative orders’313, he argues, and rescues the idea of the power of judgement against the bedrock of the public use of reason as the common action norm-giving. Hence, MacCormick comes to the conclusion that

309 310 311 312 313

Richard A. Posner, The Problematics, op. cit., p. 97. Jürgen Habermas, Between Facts and Norms, op. cit., p. 105. Richard A. Posner, The Problematics, op. cit., p. 99. Jürgen Habermas, Between Facts and Norms, op. cit., pp. 20–21. Neil MacCormick, Questioning sovereignty, op. cit., p. 7.

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‘the more we take legal decision-making to be a public matter drawing on public sources, the less we force agents into the position of having to knuckle under moral decisions of particular judges and other legal officials’314. However, the more the citizens themselves make revisions on the grounds of interpretative-judgemental cooperation, the more they integrate them. Thus, the law integrates as a medium of discourse and of interpretative-judgemental cooperation based on fair terms that enable reasonable disagreement.

7. Where the All Roads Lead What is most relevant and common among the three conceptions in question? In each case, the relations between the normative foundations of the system of law of a democratic constitutional polity and its identity come about315. Further, in each of these conceptions, a question arises that concerns a federal state (the USA) or a political entity that would function as embracing more specific and particular political units (the EU and its Member States). In them, the elements of a constructive interpretive method applied to the system of law are entangled. In the case of Dworkin, the constructive interpretative method is applied by judges to the system of law conceived of political principles, legal rights and, consequently, legal rules, whereby a moral reading of the constitution turns the polity into constitutional democracy; in the case of Habermas, it is applied to the constitutional democracy stemming from the institutionalisation of discourse rules in the medium of law, whereby its normative source is conceived as multiple public spheres; and in the case of MacCormick, the pluralistic interpretative institutional practice that is sustained and maintained by the power of the judgement of all addressees of law comes about, whereby diverse normative viewpoints underpinned by value pluralism develop into a reasonable disagreement and a peaceful cooperation proceeding on impartial/fair terms. Dworkin states that ‘every community has paradigms of law’316 and these ‘paradigms are broken and new paradigms emerge’317. According to Habermas, a shift 314 Neil MacCormick, Institutions of Law, op. cit., p. 261. 315 In the case of Dworkin, the identity and integrity of the USA comes about here, and in the cases of Habermas and MacCormick, the EU and its identity as well as integrity are naturally at stake. 316 Ronald Dworkin, Law’s Empire, op. cit., p. 88. 317 Ibidem, p. 90. He also claims that ‘the American ideal of government not only under law but under principle as well is the most important contribution our history has

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in the legal paradigm reflects a shift in the understanding freedom and equality, and thus it triggers processes of new modes of realising (legitimating and applying) these ideas318. The change of the paradigms of law that characterises the legal culture of the EU is basically related to the breakdown of the basic positivistic assumptions concerning the conceptualisation of the legal system, as Massimo La Torre neatly states, and this seems to mean the following. First, the system of law is no longer comprehended as stable or persistent319 but as law ‘in-the making’320. Second, the law is no longer related solely to a state but also to other forms of polity (supranational, national and so forth)321, because it is now viewed as ‘the bedrock of a legal order, not of the state’322. Third, there may be an observable shift in the comprehension of the law from rules and duties towards rights and principles323. Fourth, according to La Torre, the positivistic claim that ‘the addressees of legal rules (…) are only judges and state officials’324 has been overcome, and the strong democratic credentials demand that those addressees also be recognised as citizens who are active in public spheres, due to the fifth shift, namely, towards the dualistic understanding of the constitution as backed up by the co-originality of the rule of law and the principle of popular sovereignty. Sixth, the positivity of law as made and enacted by the people themselves no longer means the ‘positioning’

given to political theory. Others nations and cultures realises this, and the American ideal has increasingly and self-consciously been adopted and imitated elsewhere’; Ronald Dworkin, Freedom’s Law, op. cit., p. 6, but I do not think that is the case at all. 318 Jürgen Habermas, “Paradigms of Law”, op. cit., p. 13. 319 Mauro Zamboni, Law and Politics. A Dilemma for Contemporary Legal Theory, Springer, Berlin, Heidelberg, 2008, p. 27. 320 Massimo La Torre, Constitutionalism and Legal Reasoning, op. cit., p. 14; Johan P. Olsen, Europe in Search of Political Order, op. cit., p. 243; Johan P. Olsen, Governing Through Institution Building, op. cit., pp. 52, 62; John Erik Fossum, Augustín José Menéndez, The Constitution’s Gift, op. cit., 2011. 321 Massimo La Torre, Constitutionalism and Legal Reasoning, op. cit., p. 13. 322 Ibidem, p. 33. Compare Johan P. Olsen, Governing through Institution Building, op. cit., p. 163: ‘Understanding the law as an epiphenomenon of political will, and economic and social forces, or in terms of judicial autonomy (law as governed exclusively by legal doctrines and techniques of interpretation), is perceived as naïve and uncompromising. The dynamics of law is analysed as part of larger interinstitutional processes (…)’. 323 Massimo La Torre, Constitutionalism and Legal Reasoning, op. cit., pp. 16, 31. 324 Ibidem, p. 13. Compare Zamboni on the American legal positivists, Mauro Zamboni, Law and Politics, op. cit., p. 91.

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of the law (legal rules)325, but tends to express the construction of law related to public justifications based on impartial universalistic principles of political morality. Seventh, the concept of the constitution becomes related primarily not to the constitutional momentum but to processes of legal constitutionalisation underpinned by complementary institutional constitutionalisation as well as horizontal (societal) constitutionalisation within a political community. Finally, as La Torre brilliantly states, a constitutional law ceases to be the ‘command’ of a sovereign and transforms itself into ‘civil conversation’, because ‘a “will of constitution” in fact is eminently a will of discourse’326 and raises for citizens the possibility of learning in terms of developing a ‘normative-educational project’ that integrates most327. And when we add to these the eighth point that ‘the nature of democracy is to be unfinished and in the process of becoming rather than static’328, as Johann P. Olsen rightly underscores the democratic underpinning of law as discourse, then we have the fifth and subsequent points explained: when the rule of law is coupled with the principle of popular sovereignty, then they trigger the processes of a common polity construction that, in its nature, is unfinished. From all of this follows the necessity of the democratic education of all citizens for the sake of entrenching their real empowerment and discursive public participation in the legal-political processes of law-making and law-application that would result at the end of the day, in the respect for law for its worthiness. Accordingly, democratic education would be dedicated to processes of bringing to light convictions and beliefs that form the deep-seated elements of citizens’ motivational structures and then become discursively and reflectively elaborated in order to foster the autonomy of each citizen that always presumes respect for the same autonomy of any other329. This, indeed, means entrenching the positive morality, but paradoxically, in the sense of the public power of judgement. It would also be dedicated to such a shaping of motivational structures that would come hand in hand with the emotions correlated with the best reasons for taking action that are being elaborated through deliberative participation in diverse institutions—participation oriented at constructing the justifications of decisions that are made there. And this means increasing the democratic competencies of citizens, who would

325 326 327 328 329

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Massimo La Torre, Constitutionalism and Legal Reasoning, op. cit., p. 12. Ibidem, p. 36, see p. 77. Johan P. Olsen, Europe in Search of Political Order, op. cit., p. 209. Johan P. Olsen, Governing Through Institution Building, op. cit., p. 138. Compare Ewa Nowak, Experimental Ethics. A Multidisciplinary Approach, LIT Verlag, Zürich, Berlin, 2013, pp. 153–155.

more fully and more effectively influence the public institutions and exercise the public power of judgement—their real not mere formal empowerment. In so doing, the citizens of any polity may more discursively make use of institutions of freedom and gain a more powerful voice in the discussion with their own selves with regard to the basic principles or basic rights that would become more visible to every one of them. Being a philosopher, at least in the contemporary times—in contrast to claiming oneself a philosopher—means seeing an equal capacity for philosophising in every human being330, because philosophising makes us equal as human beings.

330 Jürgen Habermas, “Reply to Symposium Participants, Benjamin N. Cardozo School of Law”, op. cit., p. 431: ‘However, philosophy conducts one discourse, among many others, and explains why there cannot be a superdiscourse. (…) [Philosophers] certainly cannot, however, lay claim to the institutional role of arbiter’. From what follows, Dworkin cannot claim constitutional judges to be ‘practicing philosophers’.

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CHAPTER II The Idea of Self-Constitutionalisation and Constitutional Patriotism 1. The Background of Reading the Idea of Constitutional Patriotism Integration by law is seen as a key feature of Europeanization1. Taking the thesis for granted, the following statements are of special significance for understanding the intellectual context of the idea of constitutional patriotism. A) Neil MacCormick proclaims post-sovereign constellation as the conclusion of his analysis on the mutual crossing or overlapping of the rule of recognition and rules of change in the EU. In Questioning Sovereignty. Law, State, and Nation in the European Commonwealth, MacCormick takes into consideration the doctrine of parliamentary sovereignty in the context of European integration by the ratification of the European Treatises and investigates whether the interrelations between the Hartian rule of recognition and rules of change have been modified in this sense, so that they are meshed, or whether the rule of 1

Ian Manner, “Normative Power Europe: A Contradiction in Terms?”, Journal of Common Market Studies, Vol. 40, No. 2, 2002 (pp. 235–58), here p. 241; Johan P. Olsen, Governing Through Institution Building. Institutional Theory and Recent European Experiments in Democratic Organization, Oxford University Press, Oxford, New York, 2010, pp. 46–47; Johan P. Olsen, Europe in Search of Political Order. An institutional perspective on unity/diversity, citizens/their helpers, democratic design/historical drift and the co-existence of orders, Oxford University Press, Oxford, New York, 2007, pp. 32, 176, 243. See also Neil Walker, “The Place of European Law”, in: Gráine de Búrca, J. H. H. Weiler (eds.), The Worlds of European Constitutionalism, Cambridge University Press, Cambridge, New York, 2012, p. 57; John Erik Fossum, Augustín José Menéndez, The Constitution’s Gift. A Constitutional Theory for a Democratic European Union, Rowman & Littlefield Publishers, Inc., Lanham, Maryland, 2011, p. 13. Christian Joerges, “What Is Left of the Integration Through Law Project? A Reconstruction in Conflicts-Law Perspective”, in: Edoardo Chiti, Augustín José Menéndez, Pedro Gustavo Teixeira (eds.), The European Rescue of the European Union? The Existential Crisis of the European Political Project, ARENA Report No 3/12, RECON Report No 19.

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recognition has changed itself in the case of each Member State of the European Community (now the EU)2. His conclusion is that these were ‘changes that involved the use of the “power of change” to add a new “criterion of recognition” to the rule of recognition’3 (the second abovementioned possibility), namely, the changes adding the new player-interpreter which is— the former European Court of Justice and today—the Court of Justice of the European Union. This statement implies the thesis about the ‘pluralism under international law’4, from which, on the grounds of the MacCormick’s theory of law, it follows that one can discuss the post-sovereignty of the Member States of the European Community (the EU). Hence, sovereignty is held with reference to the EU as a whole; moreover, in view of Anthony Giddens, now ‘the EU is (…) sovereignty+. Through their collaboration, the member states of the EU acquire more real influence in the world than they could as individual actors’5. The EU is an externally sovereign polity, however, its internal relations, built on the transition of the criterion of the rule of recognition within each Member State, prevent us from talking about the internally sovereign Member States. This is, in short, the reading of the idea of post-sovereignty in accordance with each EU Member State6 proposed by Neil MacCormick. Presuming this, it may be concluded that the ‘full sovereignty of the nation-state, if it ever existed, belongs to the past, and advocating full sovereignty as a normative aspiration seems dated and stale’7.

2 3 4 5 6 7

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Compare Francesco Viola, “The Rule of Law in Legal Pluralism”, in: Tomasz GizbertStudnicki, Jerzy Stelach (eds.), Law and Legal Cultures in the 21st Century. Diversity and Unity, Oficyna a Wolter Kluwer business, Warszawa, 2007, pp. 111–112. Neil MacCormick, Questioning Sovereignty. Law, State, and Nation in the European Commonwealth, Oxford University Press, Oxford, New York, 2001, p. 94; see also p. 115. Ibidem, p. 117. Anthony Giddens, Turbulent and Mighty Continent. What Future for Europe?, Polity Press, Cambridge, 2014, p. 11. Neil MacCormick, Questioning Sovereignty, op. cit., pp. 130–132. Joxerramon Bengoetxea, “Nation-States vs. Nation-Regions in the Post-sovereign European Polity”, in: Augustín José Menéndez, John Erik Fossum (eds.), Law and Democracy in Neil MacCormick’s Legal and Political Theory. The Post-Sovereign Constellation, Springer, Law and Philosophy Library, Volume 93, Dordrecht, 2011, p. 249.

B) Habermas identifies a post-national constellation. In general, the claim is that the civic society8 comes to have a crucial voice in processes of legitimate decision-making not only within the Member States but also in the European polity. Processes of globalization (which are the main, albeit not the only, factors here to be taken into account) comprehended in economic terms render the previous national constellation impossible to sustain any longer9, and in these circumstances, ‘welfare-state functions can be maintained at their previous level only if they are transferred from the nation-state to larger political entities which could manage to keep pace with a transnational economy’10. However, here, this does not only pertain to the economy. Global migration and the formation of multicultural societies demand different political forms of self-control correlated with new forms of social solidarity capable of motivating citizens to engage in spontaneous cooperation for the sake of the polity in this new geopolitical situation. As ‘globalization raises questions about the fundamental presuppositions of classical international law—the sovereignty of states and the sharp division between domestic and foreign policy’11—the concept of national culture as a ‘general political culture’12 has turned out to be too restricted to allow the majority of polities and their citizens to cope with the changing global situation. Therefore, concepts which seem more abstract, like that of a political culture, and more inclusive, like a transnational society, On the concept of the civic society, see Jürgen Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg, The MIT Press, Cambridge, Massachusetts, 1999, pp. 366–367. 9 Compare Pablo De Greiff, “Habermas on Nationalism and Cosmopolitanism”, Ratio Juris, Vol. 15, No. 4, December, 2002 (pp. 418–438), here p. 428: ‘What is noteworthy about processes of economic denationalization is not merely the increased magnitude of economic activity across national borders, but the rapid mobility of capital and the consequent competition for it among different states, which can lead to a race among countries to dismantle their welfare systems in the search for the competitive advantages’. 10 Jürgen Habermas, The Postnational Constellation. Political Essays, trans. Max Pensky, The MIT Press, Cambridge, Massachusetts, 2001, p. 52. On the significance of this issue in the context of processes of Europeanization see Christian Joerges, Florian Rödl, “Informal Politics, Formalised Law and the ‘Social Deficit’ of European Integration: Reflections after the Judgements of the ECJ in Viking and Laval”, European Law Journal, Vol. 15, No. 1, 2009 (pp. 1–19). 11 Jürgen Habermas, The Inclusion of the Other. Studies in Political Theory, (ed.) Ciaran Cronin, Pablo De Greiff, Polity, Cambridge, 2002, p. 174. 12 Jürgen Habermas, The Postnational Constellation, op. cit., p. 74. 8

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are at the same time needed to contemplate how it is possible to tap the political, social and economic discrepancies and to face the contemporary challenges arising all over the world. In order to make the claim for ‘larger political entities’ viable, that is, to enable transformations of polities, Habermas highlights the necessity of theoretically conjuring up other tools as well, besides the terms of economic reforms, and points at the role of the mass mobilisation of the citizenry cooperating for a better common future. In addition, since ‘an “ethos of universal law”’—or ‘universal drive’—‘led to a de-coupling of rights and autonomy’, then the latter ‘challenged the claim that nation states are the ultimate source of normative authority and the exclusive allocators of individual, social and political rights’13. Therefore, in this context, Habermas evokes the Kantian ius cosmopoliticum—weltbürgerliche Verfassung14. The underlying reasons for the said move seem to be as follows. The first is to evoke such an idea that would enable one to focus on two issues simultaneously: a legitimised legal-political order—that, for MacCormick, is of a specific kind, because it relies on the post-sovereign functioning of the EU Member States—and the spontaneous mobilisation of citizens for the sake of maintaining and sustaining such an order. Namely, this is to justify citizens’ actions for reflective changes to the order, aiming simultaneously at strengthening its legitimation as well as the citizens’ cooperation within such a normative-institutional framework. From this, it also follows that the sought-after idea should take into account to a considerable extent two basic practical principles, notably, the rule of law and the principle of popular sovereignty. That puts at the fore the specific normative comprehension of public spheres, because ‘in complex societies it is the deliberative opinion- and will-formation of citizens, grounded in the principles of popular sovereignty, that forms the ultimate medium for a form of abstract, legally constructed solidarity that reproduces itself through political participation’15. Therefore, to respond to the ambitious and challenging project of the EU constitutionalisation, it is of particular importance to indicate its sources somewhere besides in supranational agreements undoubtedly underpinned by neoliberal politics that tend to reduce civil 13 Tanja Hitzel-Cassagnes, “Are We Beyond Sovereignty? The Sovereignty of Process and Democratic Legitimacy of the European Union”, in: Augustín José Menéndez, John Erik Fossum (eds.), Law and Democracy in Neil MacCormick’s Legal and Political Philosophy, The Post-Sovereign Constellation, Springer, Law and Philosophy Library, Volume 93, Dordrecht, Heidelberg, London, New York, 2011, p. 137. 14 Jürgen Habermas, The Inclusion of the Other, op. cit., p. 168. 15 Jürgen Habermas, The Postnational Constellation, op. cit., p. 76.

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rights to private liberties above all16 and regard as sufficient explanations based purely on the assumption of increasing benefits (of course, benefits of chosen subjects of law, which quite often pertain to a business sector and have little to do with ordinary citizens). What matters here is to develop a project that would allow for ‘a common political existence’ and would rest on the abovementioned ‘common practice of opinion- and will-formation, nourished by the roots of a European civil society, and expanded into a Europe-wide political arena’17, or even—with regard to the normative potential of the Habermasian, though post-Kantian in its origin, project—expanded into a worldwide political arena with its nutriments in a global civic society. Nevertheless, the current processes of European integration by law—in opposition to what as important element in building externally and internally convincing European polity amicably put forward Habermas, MacCormick and many other thinkers in the social sciences—are directly connected to defining the European polity in instrumental terms, that is, in terms of its efficiency, utility, effectiveness and substantive outcomes18. This instrumental view of the polity in question entails justifying the processes of Europeanization in the name of strengthening the problem-solving capacities of all Member States, because it is presumed that they can be more effective by acting together than on their own, and even that they may act more efficiently together, as opposed to alone19. A quite common explanation for this theoretical (and also practical, because it is reflected in the reforms that have been undertaken so far) justification is that it allows for avoiding any kind of public sphere politicisation that would seem dangerous for the polity in question and, after the Second World War experience, would be especially

16 Ibidem, p. 94. 17 Ibidem, p. 100. 18 Johan P. Olsen, Europe in Search of Political Order. op. cit., pp. 6, 39, 58–59; compare John Erik Fossum, “Constitution-making in the European Union”, in: Erik Oddvar Eriksen, John Erik Fossum (eds.), Democracy in the European Union. Integration Through Deliberation?, Routledge, London, New York, 2002. 19 Johan P. Olsen, Governing Through Institution Building, op. cit., p. 51. This instrumental view of the Europeanization breaks down when faced with the crisis and the bailout policy in the EU, compare Marta Soniewicka, “Should Greece Go to Hell? Between Economic Salvation and Damnation in Europe”, in: J. Stelmach, R. Schmidt (eds.), Die Rolle des Rechts in der Zeit der wirtschaftlichen Krise, Krakauer-Augbsurger Rechtsstudien, Wolters Kluwer, Warszawa, 2013.

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unwanted in Europe. As a result, EU integration is basically understood in terms of a common market construction founded on four economic freedoms20. In other words, the processes of Europeanization by law are seen as means for realising ‘integration by expert élites, instrumental rationality and legitimacy by outcomes’21. This, in turn, makes the EU an unsettled polity22, as the processes of social, cultural and real political integration (understood as common and shared practices of political participation on the par of Euro-citizens in the European political sphere) are moved to the foreground. This idea of the high specialisation of the integration processes, instead of their politicisation, however, is not without problems. Some argue that these kinds of changes in the EU are ‘moving towards a post-democratic or post-parliamentary order in which influence of the people through territorial, representative democracy has only a marginal role’23. J. H. H. Weiler captures this concisely as follows: ‘it is the special brand of European Constitutionalism. Its Sonderweg’24. Moreover, since about the 1980s, the dominant methodological standpoint in the social sciences in Europe was first infected by the New Public Management (NPM) and then by the Post-New Public Management reforms, that is, ‘neo-classical

20 Neil Walker, “The Place of European Law”, op. cit., p. 84. For more in-depth analyses see Edoardo Chiti, Augustín José Menéndez, Pedro Gustavo Teixeira (eds.), The European Rescue of the European Union? The Existential Crisis of the European Political Project, ARENA Report No 3/12, RECON Report No 19, http:// www.reconproject.eu/projectweb/portalproject/RECONReports.html. 21 Jiři Přibáň, “Multiple Sovereignty: On Europe’s Self-Constitutionalization and Legal Self-Reference”, Ratio Juris, Vol. 23, No. 1, March 2010 (pp. 41–64), here p. 48. Compare also John MacCormick, Europeanism, Oxford University Press, Oxford, 2010, p. 4. 22 Johan P. Olsen, Governing Through Institution Building, op. cit., pp. 9, 81; Neil Walker, “The Place of European Law”, op. cit., p. 58. 23 Johan P. Olsen, Europe in Search of Political Order, op. cit., p. 29. ‘Task-effectiveness and technical imperatives presuppose depolitization and professional competence and knowledge, as well as the participation of organized interests. Europe is moving towards a post-democratic or post-parliamentary order in which influence of the people through territorial, representative democracy has only a marginal role.’ Some thinkers do not seem to see any problem with that, compare: Beate Sissenich, “Justification and Identity in European Integration: Comments on Morgan and Ferrara”, Constellations, Vol. 14, No. 3, 2007 (pp. 347–354). 24 J. H. H. Weiler, “Dialogical Epilogue”, in: Gráine de Búrca, J. H. H. Weiler (eds.), The Worlds of European Constitutionalism, Cambridge University Press, Cambridge, New York, 2012, p. 269.

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economic ideology’25 incorporated from the United States, and, in accordance, tailored to suit the construction of the EU as a simple problem-solving entity. This direction was taken on the basis of empirical data on the best foundations for redirecting research and related reforms from the problem of governing the EU to the problem of governance within the EU. Of course, these reforms intended to translate the previous political order into the language of effective outcomes springing from cooperation between the public and private sectors (most wanted under the terms of this paradigm26) functioning in an environment of free competition. As a result, these two spheres began to overlap, although their separation has been seen as a specific feature of the European tradition27; furthermore, at the same time, the normative sphere started to thin out and the problem of who is responsible for what arise as the problem of ‘different hands’28. As Marek Zirk-Sadowski argues, ‘the novelty of the situation is the conscious resignation from creating strong normative spheres in such a model [designed basically by the idea of governance] of society and political system’29, which aligns with Habermas’s statement that ‘with the concept of a ‘society based on private rights’, neoliberalism also calculates that the use-value of civil liberties is

25 Johan P. Olsen, Europe in Search of Political Order, op. cit.; Johan P. Olsen, Governing Through Institution Building, op. cit. p. 4. 26 The impact of this (Post) NPM imperative of cooperation between the public and private sectors is very well seen in the field of Higher Education Policy (HEP) and reforms that are being introduced to the European higher education (national) systems. It is also heatedly debated, in terms of an entrepreneurial university, in the field of Higher Education Research (HER); compare Marek Kwiek, Knowledge Production in European Universities. States, Markets, and Academic Entrepreneurialism, Peter Lang Edition, HERP 3, Frankfurt am Main, 2013. 27 Johan P. Olsen, Europe in Search of Political Order, op. cit., pp. 34, 249, 256–257; Jürgen Habermas, The Postnational Constellation, op. cit., pp. 18–19, 77. Compare Mark Van Hoecke, “European Legal Cultures in a Context of Globalisation”, in: Tomasz Gizbert-Studnicki, Jerzy Stelmach (eds.), Law and Legal Cultures in the 21st Century. Diversity and Unity, Oficyna a Wolter Kluwer business, Warszawa, 2007, p. 86. 28 Annie Hondeghem, “Introduction, Ethics and Accountability in a Context of Governance and New Public Management”, EGPA Annual Conference, Leuven 1997, IOS Press, 1998, p. 1. 29 Marek Zirk-Sadowski, “European Judicial Governance and Legal Philosophy”, in: Bartosz Wojciechowski, Marek Zirk-Sadowski, Mariusz J. Golecki (eds.), Between Complexity of Law and Lack of Order. Philosophy of Law in The Era of Globalization, Wydawnictwo Adam Marszałek, Toruń-Beijing, 2009, p. 362.

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consumed in the enjoyment of private autonomy’30. To put it differently, in the EU, we face the effectiveness–efficacy sting. The abovementioned strategy for legitimating the EU strengthens (and one might even say generates) issues arising from the post-national, post-sovereign and eventually post-democratic constellation, that is—according to CIDEL’s models of European public spheres31—we can certainly consider the EU as a problem-solving entity, and we can also regard it as a rights-based union, but since the characteristic trait of the polity in question that would shape its identity, namely, being a values-based community, has yet to appear, it is difficult to talk about Euro-citizens in anything other than legal terms. For this reason, basically, ‘the system of European governance as a distinct from a collective problem-solving is considered dispersed, fragmented, adapted to the specific operations of functionally differentiated subsystems of the EU, and therefore short of one constitutive political authority but capable of eliminating the constitutional sovereignty of national governments’32. These diagnoses lead to the hypothesis that the EU, which has been maintained in legal-instrumental terms, is a mere formal-abstract construct, that is—from a socio-political standpoint—an empty concept, in fact, because it lacks, according to Hegel, the civic substance within the civic living relations growing upward from everyday practice. The abovementioned understanding of the EU as an unsettled polity interplays with Jan-Werner Müller’s statements on the basic traits of the current situation of the polity under scrutiny33. A) Instead of the constitution crowning processes of legal integration, ongoing debates are kept over the project of the EU. It must be added that these debates take place mainly on the intergovernmental as well as intellectual levels, but regrettably not in public spheres involving citizenry34.

30 Jürgen Habermas, The Postnational Constellation. Political Essays, op. cit., p. 94. 31 CIDEL—research project, Citizenship and Democratic Legitimacy in the European Union (2002–2005), scientifically coordinated by Erik Oddvar Eriksen. 32 Jiři Přibáň, “Multiple Sovereignty: On Europe’s Self-Constitutionalization and Legal Self-Reference”, op. cit., p. 48. Therefore, there are also voices questioning even the possibility of calling the polity a problem-solving entity, for the idea of governance prevails there. 33 Jan-Werner Müller, Constitutional Patriotism, Princeton University Press, Princeton, Oxford, 2007, p. 125ff. 34 ‘[Member states’] governments are often unable to set aside policy disagreements for the greater good, and regularly ignore public opinion when making their collective decisions’; John McCormick, Europeanism, op. cit., p. 1.

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B) The power of political expansion redefines simultaneously the political environments of the Member States and the EU. In this context, John McCormick additionally distinguishes the inclusive integration of twenty-seven Member States of the EU and exclusive integration of ‘twelve either [states which] have aspirations to join the European Union or have policy agreements with the European Union that have had the effect of changing much of their domestic policy and body of laws’35. C) There is no European demos, states Müller in reference to the popular ‘no demos thesis’ in the literature. In his view, the EU is rather ‘based on a group of demoi’36. However, since it is unclear, even the latter statement can be questioned: What kinds of demoi might one discuss? National ones? Social ones? Hence, as Patrizia Nanz notes, we can distinguish two different views on European constitutional democracy: (i) it is not necessary (this conviction is characteristic of the tradition of economic liberalism, because under its terms, the EU is basically a problem-solving entity) and (ii) it is necessary, but unfortunately, it is not possible to accomplish it for the lack of European demos (this statement is basically supported by so-called demos-theorists)37. The concept of European demos is then seen as a significant problem in the current debates concerning the EU and its integration processes as well as in the debates regarding the EU and the processes of globalisation. In view of Giddens, the question about European demos should be complemented by the question about the European democratic leadership38, which in the case of, for example, Ukrainian conflict may sound loud. The apparent lack of a common European identity, broadly perceived a post-democratic setting of intergovernmental decision-making, together with the abovementioned problems, leaves room for a restatement of differently motivated national 35 Ibidem, p. 12. See also Augustín José Menéndez, “From Constitutional Pluralism to a Pluralistic Constitution? Constitutional Synthesis as a MacCormickian Constitutional Theory of European Integration”, in: Augustín José Menéndez, John Erik Fossum (eds.), Law and Democracy in Neil MacCormick’s Legal and Political Philosophy, The Post-Sovereign Constellation, Springer, Law and Philosophy Library, Vol. 93, Dordrecht, 2011, p. 220. 36 Jan-Werner Müller, Constitutional Patriotism, op. cit., p. 125. 37 Patrizia Nanz, Europolis. Constitutional patriotism beyond the nation-state, Manchester University Press, Manchester, New York, 2006, p. 11. 38 Anthony Giddens, Turbulent and Mighty Continent. What Future for Europe?, op. cit., p. 7ff.

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claims all over Europe and ‘“internal enlargement” is the EU side of the motto “Independence in Europe”, a normative institutional aspiration of some citizens in some nations without their own state such as the Basque Country or Scotland’39. Euro-enthusiasm is obviously accompanied by Euro-scepticism eventually. Nevertheless, just a few years ago, some voices emerged, taking lessons from the previously criticised Max Weber, to state that consequentialism as the European strategy of integration can lead the EU astray in the long term. Hence, the need for normative theories seems to have been reawakened in both the theoretical and practical dimensions. As Johan P. Olsen claims, ‘there is a need for normative theories of democratic legitimacy—theoretical ideas that prescribe indicators of democratic quality beyond the nation-state framework and that provide a basis for a critical perspective on European government and society’40. Moreover, as John Erik Fossum and Augustín José Menéndez affirm, the time has come at last for a constitutional theory of the EU41. In this light, a critical function of normative theories is not to be overestimated anymore, because, as Olsen argues ‘over time it will become obvious that an increasingly heterogeneous Union cannot be based solely on the aggregation of existing national preferences. Governing the Union will require the development of some degree of constitutional patriotism, civic virtue and duty, and a logic of appropriateness, as well as an increased willingness to redistribute resources. Such developments, if achievable at all, can only occur through politicization and citizen involvement’42. Here, it also occurs that a kind of civic-republican component is necessary for theories, if they are to offer a kind of counterbalance to a widespread strategic attitude towards the integration processes of the EU. However, it is worth keeping in mind that processes of identity-building may be considered in other terms besides just through the announced emergence of common values. For example, they may be considered through and in institutional practices, according to rule-following patterns of behaviour that consist of transforming shared rules and standards of behaviour, practices that are influenced by the identities of the actors engaged in sustaining those practices, but, at the same, these identities become influenced (reshaped or even reconstructed) by the practices themselves. The reflective relationship with the principles legitimating

39 Joxerramon Bengoetxea, “Nation-States vs. Nation-Regions in the Post-sovereign European Polity”, op. cit., p. 245. 40 Johan P. Olsen, Europe in Search of Political Order, op. cit., pp. 128–129. 41 John Erik Fossum, Augustín José Menéndez, The Constitution’s Gift, op. cit., p. 14. 42 Johan P. Olsen, Europe in Search of Political Order, op. cit., p. 134.

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such kinds of practices establishes a fundamental link here. In other words, the processes of building a common identity across the polity may proceed and may be sustained, according to Ronald Dworkin, Jürgen Habermas, Neil MacCormick, Johan P. Olsen and other social theorists, due to the citizens’ relationship to basic principles—a relationship that is maintained within democratic institutions—thus, the political community can be formed in and through the rule of principles. This rule of principles, if it is meant to increase and/or sustain the social solidarity stemming from the participation in shared practices, must be underpinned by a political institutionalisation43. The latter should also be nourished and animated by the everyday reflective communicative practice in which abstract principles, first translated into institutional rules, are finally translated into mutually understandable patterns of behaviour. However, the crux is that the other way of reflective influence, that is, bottom-up, should be recognised as equally or complementally required. Without this, the positive law cannot be regarded as ‘a means of social integration, indeed, as a medium that sustains the self-understanding of a solidary community, albeit in a highly abstract form’44. From this follows a requirement for protecting political as well as private autonomy that enables the development of reflective communicative practice that, in recourse, animates the exercise of equal liberties within democratic institutions and with regard to the rule of principles. Thus, the rule of (liberal constitutional) principles must be necessary 43 ‘Integration as political institutionalization refers to: (1) structures, rules, roles, and practices specifying legitimate authority relations and codes of appropriate behaviour; (2) shared purposes, identities, traditions of interpretation and principles of legitimacy that explain and justify practices and provide a basis for activating moral and emotional allegiances and solidarity; (3) common resources which create capability and capacity to act in a coordinated way.’; Johan P. Olsen, Europe in Search of Political Order, op. cit., p. 23. This kind of community, although it has not been achieved in the EU either, seems to show through the idea of ‘Future Europe construction’ contained in the Lisbon Treatise Preamble (TUE 2007). 44 Jürgen Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg, The MIT Press, Cambridge, Massachusetts, 1999, p. 223. Patchen Markel accurately captures Habermas’s intentions when he writes, ‘This prior attachment to universal principles was supposed to serve as a “filter” that could screen out the dangerous elements of national pride and historical consciousness. On this account, only after we have established an independent affective connection to normative principles will we be properly quipped to decide “which of our traditions we want to continue and which we do not”’; Patchen Markell, “Making Affect Safe for Democracy? On ‘Constitutional patriotism’”, Political Theory, Vol. 28, No. 1, February 2000 (pp. 38–63), here p. 51.

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complemented by the rule of popular sovereignty which is ‘expressed in those classical basic rights that guarantee the private autonomy of members of society. Thus the law is legitimated as an instrument for the equal protection of private and public autonomy’45. Interestingly, voices have also been raised from the other theoretical side, claiming that in ‘Western political culture’, there has been a ‘turn to politicsas-response-to-culture’46. As the source of this turn, the emphasis is placed on the significance of the citizenry and political culture as distinct from ethnic culture, and therefore able to become a vehicle of the processes of constructing a common identity, mentioned above. Thus, the search for a European demos that would be—in view of some theorists—identified in the concept of a European citizenry actively participating in the European political institutions threatens other theorists in the social sciences with a cultural unification smuggled under an umbrella of an abstract political culture as a playground for the rule of law and the rule of popular sovereignty. In the very heart of these philosophical anxieties one may identify Habermasian ideas.

2. Constitutional Patriotism—the Outline of Approaches An idea that addresses the problem of democratic legitimacy is the Habermasian idea of constitutional patriotism. In the following investigations, neither is the history of the idea of patriotism nor are the roots of constitutional patriotism, as such, presented in detail. Jan-Werner Müller carries out this task in Chapter I of his book Constitutional Patriotism47, due to the history of the idea of constitutional patriotism (Verfassungspatriotismus) introduced by Dorf Sternberg and its embodiment in the German debate concerning the critical-reflective relation to German political history, especially that of the twentieth century. Nevertheless, I would like to mention three kinds of patriotism which Pauline Kleingeld distinguishes in her article “Kantian Patriotism”, for they are of use in the next steps of the analysis. Then I shall discuss the different kinds of classifications of the 45 Jürgen Habermas, The Inclusion of the Other, op. cit., p. 258. 46 Per Mouritsen, “Political Responses to Cultural Conflict”, in: Constituting Communities. Political Solutions to Cultural Conflict, Per Mouritsen, Knud Erik Jørgensen (eds.), Palgrave Macmillan, Houndmills, Basingstoke, New York, 2008, p. 4. 47 Jan-Werner Müller, Constitutional Patriotism, op. cit., pp. 15–45.

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Habermasian standpoint on the idea of patriotism in order to establish the backdrop for the in-depth analysis of the most crucial and heatedly discussed passages expressing his notion of patriotism. The structure of the argumentation will aim at offering as clear and diligent an interpretation of the statements as possible. (i) Reconstruction of Pauline Kleingeld’s general division of the concepts of patriotism. a)  Civic patriotism—understood as part of a civic-republican heritage, because in this context, ‘“patriotic” and “for the common good” are therefore often used synonymously’48. b) Nationalist patriotism—‘the nationalist tradition has tied “patriotism” to the ideal of the nation-state’49 —makes this kind of patriotism an exclusivist standpoint for a more or less rigid definition of national membership50. c) Trait-based patriotism—best expressed as ‘the love of one’s country that results from reflection on or direct appreciation of its qualities’51—that has a little, if nothing, to do with national membership but with being moved by the special phenomena through which a nation appears, like nature, cultural heritage and so on. As John McCormick underlines, this kind of patriotism was in its previous form a kind of movement oriented towards dealing with ‘the elite domination of French and Latin’52 which was transformed for political purposes into nationalist patriotism after the French Revolution. In addition, Joxerramon Bengoetxea distinguishes between nationalism ‘meant normatively’ and ‘meant descriptively53. In the former case, nationalism is understood as providing an axio-normative structure for action-taking (good/ought), and in the latter case, it offers the structure of social practice. The general question stemming from the presented classification is as follows: Is the Habermasian proposal anything new and distinct from the well-known forms 48 Pauline Kleingeld, “Kantian Patriotism”, Philosophy & Public Affairs, Vol. 29, No. 4, 2000 (pp. 313–341), here p. 317. 49 Ibidem, p. 319. 50 Ibidem, p. 319. Compare Marta Soniewicka, “Patriotism and Justice in in Global Dimension. A Conflict of Virtues?”, Eidos, No. 14, 2011 (pp. 50–71). 51 Pauline Kleingeld, “Kantian Patriotism”, op. cit., p. 321. 52 John MacCormick, Europeanism, op. cit., p. 33. 53 Joxerramon Bengoetxea, “Nation-States vs. Nation-Regions in the Post-sovereign European Polity”, op. cit., p. 248.

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of patriotism, and is it capable of building a structure for European cooperation that establishes so-called positive solidarity54? Or even, following its main nub, a structure for a worldwide perspective suitable for building the corresponding ‘global community’ of a ‘cosmopolitan democracy’? Or, perhaps, it is, in fact, a republican contribution that tries to smuggle some kind of domination, but, if that is the case, whose domination (of what kind of groups or cultures, and over whom)? The Habermasian theory of deliberative democracy, at the heart of which one may discover that the idea of constitutional patriotism is meant to offer a proceduralist alternative to well-known liberal and republican paradigms with regard to the concepts of the citizen, the law and the nature of the political process55. His thesis plays an important role for the issue in question, as it states that a nation is defined by its culture, corresponding to Kleingeld’s ‘(b) distinction’ representing an ‘imaginary unity’56, because ‘collective identities are made not found’57. In this way, Habermas adopts the crucial premise of the republican model, stating that the concept of the nation is, in fact, a ‘political construct’, and since it originally stems from the social construct58, then the process of its coming into existence shall meet—and this seems to be the main theme of Habermasian reflections—the principle of voluntariness59. This socio-political construction runs, then, through the structure of each citizen’s realisation of his/ her basic rights, whilst private rights can never be betrayed for political rights, and they both must mutually presuppose one another, if the legal-political is to respond to the social and vice versa60. (ii) There are at least three approaches to the Habermasian idea of constitutional patriotism (the first two belong to the field of social sciences and the third to the realm of the philosophy of law) which aim at developing it or just coming into a serious debate with the proposal. I articulate them as follows:

54 Jürgen Habermas, The Postnational Constellation, op. cit., pp. 108–109. 55 Jürgen Habermas, The Inclusion of the Other, op. cit., pp. 240–243. 56 Ibidem, p. 234; compare Benedict Anderson, Imagined Communities: Reflections on the Origins and Spread of Nationalism, Verso, 1991. 57 Jürgen Habermas, The Postnational Constellation, op. cit., p. 19. 58 Jürgen Habermas, The Inclusion of the Other, op. cit., pp. 136–137. 59 Ibidem, p. 141. 60 See Chapter I, subsection “The Second Road: Habermas’s Discursive Reorientation Towards the Future-Oriented Project” in this book.

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a) The national perspective seems to prescribe Frank I. Michelman to Habermas61. Indeed, Neil MacCormick finds some kind of inspiration in the Habermasian proposal when he speaks of an inclusive nationalism62. Today, as John Erik Fossum argues, this inclusive nationalism ‘locates the sources foremost in politico-legal institutional traits’, but not in ‘ethnocultural traits’63—and this can be regarded as a transformed version of the national perspective developed by, among others, Neil MacCormick, who is regarded (by Fossum) as a ‘one of the very early forerunners of the “second-wave” nationalism theorists’64, where this second-wave is ‘a kind of social-democratic liberal nationalism’65. b) A (cosmopolitan) civic perspective, or democratic constitutionalism, which does not draw very strong attention to the ethical problems (where the concept refers to the idea of the authenticity of the demos), because ‘the relationship between law and nationalism appears quite contingent’66 for ‘the relationship between cultural nationalism and social integration is far more contingent that what is generally held. The same argument also applies to the role of nationalism in supplying social justice’67. Precisely 61 Frank I. Michelman, “Morality, Identity and ‘Constitutional Patriotism’”, Ratio Juris, Vol. 14, No. 3, September 2001 (pp. 253–271), here pp. 254–255. Compare Patchen Markell, “Making Affect Safe for Democracy? On ‘Constitutional Patriotism’”, op. cit., pp. 40, 43. 62 Neil MacCormick, Questioning Sovereignty, op. cit., Chapter 11, especially pp. 170, 182. 63 John Erik Fossum, “Nationalism, Patriotism and Diversity – Conceptualizing the National Dimension in Neil MacCormick’s Post-sovereign Constellation”, in: Augustín José Menéndez, John Erik Fossum (eds.), Law and Democracy in Neil MacCormick’s Legal and Political Theory. The Post-Sovereign Constellation, Springer, Law and Philosophy Library, Volume 93, Dordrecht, 2011, p. 262. 64 Ibidem, p. 268. Fossum provides the following explanation of his thesis: ‘In what sense is MacCormick’s liberal nationalism different from mainstream ones? The point is that the appropriate nationalism must somehow provide us with assurance that minority nationalism will not develop exclusivist propensities, or discriminate against either minorities within, or members of the majority within’, ibidem, p. 270; and he further adds: ‘The liberal dimension of liberal nationalism is supposed to ensure that the community is open to the inclusion of outsiders. Furthermore, the liberal ethos posits that there is ready-exit from the community’, ibidem, p. 271. 65 Joxerramon Bengoetxea, “Nation-States vs. Nation-Regions in the Post-sovereign European Polity”, op. cit., p. 247. 66 John Erik Fossum, “Nationalism, Patriotism and Diversity…”, op. cit., p. 275. 67 Ibidem, p. 277.

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this moment is put in question by theorists, who, like Per Mouritsen, see in this civic cosmopolitan approach the burden of republican danger related to the unification of cultures into one single culture. Thus, the charge here is that ‘the alleged neutrality of the civic constitutional space [appears] little more than chimera’68. c) A constitutional debate perspective that, in the context of constitutional patriotism, is best reconstructed by Ciaran Cronin; here, the problem is whether ‘that what constitutionalism stipulates as a precondition of democratic legitimacy conflicts with the most fundamental mechanism of democratic legitimation, popular rule’69 or quite the contrary. From this point of view, the problems apply in general to any constitutional polity concerning, as Frank Michelman states, a ‘paradox of constitutional democracy’, or, as James E. Flaming names it, ‘dualist constitutional democracy’70, and who develops his own conception within the family of a deliberative paradigm; and thus the former classifies Habermas as a constitutional contractarian. There is also a claim that the undertaking of the above mentioned problematics means ‘retro-politics driven by calls for (…) the foundation of identity-building of the future European citizenry’71 inspired by the tradition of ‘lawyers’ law’ or Juristenrecht, that includes ‘a very specific group of lawyers, most notably judges and advocate-generals of the ECJ, legal experts in the European Commission and the Council of Ministers, legal advisers to national governments, and EU law theorists’72. However, this is something of a conspiracy claim stemming from a functionalist perspective that is not interested in the problem of determining

68 Ephraim Nimni, “Constitutional or Agonistic Patriotism? The Dilemmas of Liberal Nation-States”, in: Per Mouritsen, Knud Erik Jørgensen (eds.), Constituting Communities. Political Solutions to Cultural Conflict, Palgrave Macmillan, Houndmills, Basingstoke, New York, 2008, p. 95. 69 Ciaran Cronin, “On the Possibility of a Democratic Constitutional Founding: Habermas and Michelman in Dialogue”, Ratio Juris, Vol. 19, No. 3 September 2006 (pp. 343–69), here p. 343. 70 James E. Flaming, “The Place of History and Philosophy in the Moral Reading of the American Constitution”, in: Scott Hersovitz (ed.), Exploring Law’s Empire: The Jurisprudence of Ronald Dworkin, Oxford University Press, New York, 2006, p. 28. 71 Jiři Přibáň, “Multiple Sovereignty: On Europe’s Self-Constitutionalization and Legal Self-Reference”, op. cit., p. 54. 72 Ibidem, p. 49.

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the civic justification of an order in which people are supposed to live and which they should observe; therefore, it is beyond the scientific normative interest of this chapter.

3. Basic Premises of the Idea of Constitutional Patriotism The idea of constitutional patriotism is presented in The Inclusion of the Other and is supported by the co-originality thesis (that ‘private and public autonomy require each other’73) which was previously elaborated in Between Facts and Norms and supplemented by several articles. Thus, I find as a fundamental point of reference, for my interpretation of the idea in question, the abovementioned problematics ‘c’ of a ‘constitutional paradox’, which shall then influence the (re)formulations of the concept of a nation and, accordingly, nationalism. Thus, in the course of my further analysis, I rely to a considerable extent on the well-known article “Constitutional Democracy” and on the argumentative strategy presented therein. The main theme of the Habermasian considerations is the response to the question of how it is possible to meet all the requirements of emancipatory movements (struggles for recognition): those connected with individual rights as well as those connected with diverse ethical communities. The Habermasian remedy (for the lack of legal and social recognition) still seems to be ‘activating’ public autonomy on behalf of saturating private rights74, because ‘democratic self-determination (…) has the inclusive meaning of self-legislation which involves all citizens equally. (…) In this connection the principle of voluntariness is crucial: that citizens belong to a state is a function at least of their free agreement’75. As one may see, the scientific background of the idea of constitutional patriotism is formed by the question of how to transcend (or reorient76) the ‘(b)’ approach to patriotism towards the ‘(c)’ approach according to which the idea of patriotism can be grasped in terms of constitutional patriotism. From the very beginning,

73 Jürgen Habermas, “Constitutional Democracy. A Paradoxical Union of Contradictory Principles?”, Political Theory, Vol. 29, No. 6, December 2001 (pp. 766–781), here p. 767. 74 Jürgen Habermas, The Inclusion of the Other, op. cit., p. 210. 75 Ibidem, p. 139. 76 Compare the very instructive article of Justine Lacroix “For a European Constitutional Patriotism”, Political Studies, Vol. 50, 2002 (pp. 944–958).

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Habermas’s focal interest is directed towards balancing the liberal (constitutional) and republican (civic) traditions. The idea of constitutional patriotism refers to this concept of autonomy that embraces both, seemingly contradictory, principles of democratic legitimation: the rule of law meeting human rights on one hand and the principle of popular sovereignty on the other. This concept of autonomy reconciles the idea shared by Rousseau and Kant that ‘the addresses of the law must also be able to understand themselves as authors’77 with the claim that those authors should be unbounded by any previous legal constraints. Thus, the binding force of the co-originality thesis is uttered in a formal understanding of the term ‘autonomy’, which refers to private autonomy as well as public autonomy. This formal understanding of autonomy entails ‘the normative expectation of complete inclusion and mutual recognition, as well as (…) the expectation of equal opportunities for utilizing equal rights’78. The formal understanding of autonomy79 is achievable when one applies the principle of discourse (D) (leaving aside at this very moment the principle of universalisation (U), which is of no use at this moment, otherwise it would be a case of moralisation of the law80) to the medium of law, in the sense that the principium of universalisation undergoes institutionalisation that forms the code of law consisting of five basic rights. The institutionalisation of the principium of discourse (D), or the institutionalisation of those rules that determine the possibility of reaching a consensus through deliberation (through putting forward and examining the best reasons for a norm-candidate), generates, at the end of the day, the principle of democracy (the principle of popular sovereignty), which, in turn, legitimises the procedure of the institutionalisation of the discourse rules. Owing to this institutionalisation of the principium of discourse, ‘the laws secure the conditions for epistemic democracy by conferring essential rights, and

77 Jürgen Habermas, “Constitutional Democracy. A Paradoxical Union of Contradictory Principles?”, op. cit., p. 767. 78 Ibidem, p. 775. 79 Compare Karolina M. Cern, Bartosz Wojciechowski, “Postmetaphysical Approach to Moral Autonomy and Justification of the Thesis of the Necessary Relations between the Legal and Moral Discourse”, in: Bartosz Wojciechowski, Piotr W. Juchacz, Karolina M. Cern (eds.), Legal Rules, Moral Norms and Democratic Principles, Peter Lang Edition, Frankfurt am Main, 2013. 80 Pablo De Greiff provides an in-depth analysis of this application of the (D) principle to the medium of law, “Habermas on Nationalism and Cosmopolitanism”, op. cit.

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epistemic democracy in turn secures the legitimacy of the laws’81. With regard to this circular justification, which has nothing to do with the vicious circle, both the institutionalisation of the principium of discourse in the medium of law and the principium of democracy, stemming from the former, become the underpinnings of such a process of saturation of the said code of law with the normative substance that it satisfies the co-originality thesis. In so doing, in other words, the saturation is supposed to do justice to the rule of law and popular sovereignty at the same time. What is at stake, then, is not a particular legal system but the laws of law-making82 in need of saturation in the normative matter by lawgivers, who are always also addressees of the common action norms. This standpoint entails a constructivist approach to the law with regard to both human rights and basic rights83, as the latter are the constitutional utterances of the former. I analyse this more fully in the subsequent chapters of the book. Putting things differently, according to Habermas, the formal understanding of the concept of autonomy opens up the possibility that instead of ranking human rights and popular sovereignty as previously competing sources of democratic legitimation, ‘rather, the rule of law is inscribed in political self-legislation, just as the categorical imperative—the idea that only universalisable maxims, maxims capable of universal consent, are legitimate and reasonable in the sense of showing equal respect for each person—is inscribed in moral self-legislation. However, whereas the morally acting individual binds her will to the idea of justice, the reasonable self-binding of the political sovereign means that the latter binds itself to legitimate law’84. Of course, this solution, elegant in its simplicity and profound in its reflexivity, has raised some doubts which I would like to discuss here. For example, Bonnie Honig argues the following. Richard A. Posner, The Problematics of Moral and Legal Theory, The Belknap Press of Harvard University Press, Cambridge, Massachusetts, London, 1999, p. 102. 82 Frank I. Michelman, “Morality, Identity and ‘Constitutional Patriotism’”, op. cit., p. 259; Ciaran Cronin, “On the Possibility of a Democratic Constitutional Founding: Habermas and Michelman in Dialogue”, op. cit., p. 349. 83 Jürgen Habermas, The Postnational Constellation, op. cit., p. 122. 84 Jürgen Habermas, “Constitutional Democracy. A Paradoxical Union of Contradictory Principles?”, op. cit., pp. 778–779. Richard Bellamy, Political Constitutionalism. A Republican Defence of Constitutionality of Democracy, Cambridge University Press, Cambridge, 2007, p. 90: ‘On this view, a “constitutional democracy” is a tautology rather than oxymoron. (…) Consequently, it is an unconstitutional rather than a constitutional democracy that represents a contradiction in terms’. 81

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a) ‘The analogy of political autonomy with moral autonomy is incomplete or misleading on at least two accounts: first, treating the rule of law as a categorical imperative leaves untouched the named issue of democracy versus constitutionalism. Constitutions are not as abstract as the principle of the rule of law’85. In the following paragraphs, I shall analyse the first mentioned chargé against Habermas’s co-originality thesis, in an attempt to demonstrate the justifiability of the German philosopher’s claim. The comparison between political self-legislation and moral self-legislation qua the appropriate principles inscribed in these processes, namely, the rule of law and categorical imperative, which Habermas proffers in Constitutional Democracy, is in part founded on the principle of the autonomy of will. Now, if the principle of autonomy is met, that is, if the very principle occurs to be the basis for a reflexive shaping of maxims, then the maxims as norms (with regard to their content, that is, their normative meaning) must also, due to their form, meet the requirement of representing the moral law, which is a universal one. The intended meaning of the procedure is that if the maxims are shaped just with reference to the principle of autonomy, then the will reveals itself as commonly law-giving. This accomplishment of the required universal form—of the maxims—results from the Kantian decisive assumption that what is in need of reflexive elaboration is a construction of such conditions of action that, if met, then the autonomy of will is granted86. In the practical philosophy of this famous thinker from Königsberg, it is precisely these conditions that the categorical imperative delivers, which are elaborated precisely to achieve this goal. In other words, the very object of the categorical imperative is the formal conformity of a maxim of action to the moral law. The said conformity justifies the rightness of moral norms (maxims). In the case of Habermasian practical philosophy, the focal issue is the construction of such conditions of action under which, if they are met, individual autonomy (moral autonomy of individuals) and public autonomy (popular sovereignty) are granted. Further, when they are granted, then the legitimacy of law is justified. The construction of the abovementioned conditions of action is founded on the 85 Bonnie Honig, “Dead Rights, Live Futures: A Reply to Habermas’s ‘Constitutional Democracy’”, Political Theory, Vol. 29, No. 6, December 2001 (pp. 792–805), here p. 793. On the debate over a ‘reflexive’ constitution between Habermas and Honig see Christopher Meckstroth, “The Struggle for Democracy: Paradox and History in Democratic Progress”, Constellations, Vol. 16, No. 3, 2009 (pp. 410–428). 86 Immanuel Kant, Grundlegung zur Metaphysik der Sitten, Werke in sechs Bänden, Könemann, Köln, 1995, p. 184 [396].

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co-originality thesis, that is, the co-originality of the rule of law and the principium of popular sovereignty, that is, ‘in normative terms, there is no such thing as a constitutional state without democracy’87. Hence, as one can see, Habermas does not make an equivocation of the charged sort. Taking this interpretation for granted, I agree with Alessandro Ferrara, who highlights that ‘just as the categorical imperative does not constrain the moral will from without but can be understood, at least under one interpretation, as a way of explicating what moral self-legislation is all about, so the idea of constitutionalism, with its central notion of rights, can be construed as a way of explicating what true political and, more specifically, democratic self-legislation is all about’88. In this case—based on the Habermasian co-originality thesis—the political selflegislation meeting the principle of democracy means that it must be possible to understand every citizen as a law-giver, because every citizen must be included in the processes of shaping the law-giving will. This implies that the political body of the sovereign—as a law-giver—consists of all citizens, and that meets the demand stated by Rousseau in The Social Contract. However, the most prominent conclusion is that every citizen should have the real possibility (though, not obligation) of active participation in public spheres protected and secured. I will refer to this issue in the subsequent chapters which discuss the Habermasian conception of public spheres in depth. b) The second issue that Honig raises is the coercive trait of legal law in opposition to moral laws. A full and honest interpretation of the co-originality thesis demands that one understands this; in other words, one must have a co-understanding of the principle of democracy with the rule of law. I do not agree with Honig’s charge, as I shall discuss as follows. The will can be understood as (universally) law-giving only when the maxim— which is formed by the autonomous will as well as checked up by the power of practical judgement—is in accordance with the moral law and also becomes a motive for the undertaken action. The will that produces maxims for nothing (maxims which do not function as motives for actual actions) is not a law-giving one. Thus, to understand entirely the concept of a law-giving will, one must take for granted a necessary

87 Jürgen Habermas, The Inclusion of the Other, op. cit., p. 215. 88 Alessandro Ferrara, “Of Boats and Principles: Reflections on Habermas’s ‘Constitutional Democracy’”, Political Theory, Vol. 29, No. 6, December 2001 (pp. 782–791), here p. 783.

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conjunction of two moments: the reflexive maxim formulation and this maxim’s operation as the motive for an actual action. This means that in this conjunction, the moment of self-coercion (self-necessitation) is established. In the case in question, self-coercion operates under similar terms as in the case of moral law-giving. With regard to the principle of democracy, the concept of a political sovereign includes every citizen as an author of the law, which one becomes only when s/he is coerced by the law given by him/her. Certainly, there is wide divergence in the understanding of this motivational component in individual cases of action—as the addressees of modern law, we can choose whether we reflexively shape our motives for action with regard to the law enacted by us, or we simply obey the enacted law in our motive for action89; however, this does not imply that the processes of law-giving are not legitimised by every citizen’s autonomous will. Having analysed the context of justification for the idea of constitutional patriotism, one can see in what sense it grows out from the abstract idea of autonomy whereby ‘the freedom of everyone—that is self-legislation—depends on the equal consideration of the individual freedom of each individual to take a yes/no position—that is, self-legislation’90. The idea in question normatively depends on this source legitimating the democratic law, because the idea of constitutional patriotism indicates the understanding of the freedom-constraints which spring from autonomous law-giving. Autonomous law-giving, I stress, with its claim to universalisability, uttered in the idea of a reasonable process of such a law-giving, demands the recognition of the other as able and capable of autonomous lawmaking; the other is recognised as an end in itself only when one is recognised as an autonomous law-giver in both the public and private dimensions. As one can see, the idea of self-lawgiving reconciled with the idea of democracy leads to the idea of self-constitutionalisation by the citizenry, to which constitutional patriotism refers. Therefore, with regard to the above-presented context of justification of the idea of constitutional patriotism, I can only partly agree with Jan-Werner Müller, who advocates that ‘constitutional patriotism is not itself a theory of justice: it is what has been called a normatively dependent concept, that is, it depends on a wider theory of justice to gain substantive normative content’91. I do agree with the first point of the statement, that constitutional patriotism is not itself a theory of justice but that it gathers together, or I would more exactly state, constructs ‘reasons for 89 Jürgen Habermas, Between Facts and Norms, op. cit., pp. 115–116. 90 Jürgen Habermas, “Constitutional Democracy…”, op. cit., p. 768. 91 Jan-Werner Müller, Constitutional Patriotism, op. cit., p. 11.

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attachment’92. However, in my view, which differs from Müller’s, when we analyse the Habermasian theoretical position, the concept does not depend on a theory of justice at all; rather, it undoubtedly refers to the abstract concept of autonomy forming the foundation of the theory of the democratic legitimation of the law. Thus, it must be strongly emphasised that in grasping the law as a mere medium of discourse that gives rise to a principle of democracy93, Habermas does not ‘dissolve law into morality’94. He is committed to the idea of democracy95 and is not interested in asking about the law itself or justice itself, as John Rawls96 states (and Richard Posner concurs97). In fact, Habermas does not postulate the problem of just law (but only of legitimated law); furthermore, we can add that he does not address the question of the just functioning of neither the law nor political institutions. Posner considers this to be a reason why the motivating power of the ‘major book’—Between Facts and Norms—is rather slight98, why it does not meet certain requirements that have arisen in our current world. In Posner’s view, Habermas overlooks, from his position between facts and norms, the profound and emotionally involving issues which deliberative processes concern. On the contrary, I would argue that he does not overlook the weight and significance of the problems which his discourse theory, when applied to the processes of legitimating democratic law, is supposed to face to; however, he sees no other solution

92 Ibidem, p. 50. 93 Jürgen Habermas, Between Facts and Norms, op. cit., p. 121: ‘The key idea is that the principle of democracy derives from the interpretation of the discourse principle and the legal form’. 94 Richard A. Posner, The Problematics of Moral and Legal Theory, op. cit., p. 101. 95 Ibidem, p. 103. 96 John Rawls, Political liberalism, Columbia University Press, New York, 1996, pp. 427–433; the problem noted by Rawls is ‘the outcomes of a legitimate procedure are legitimate whatever they are. This gives us purely procedural democratic legitimacy and distinguishes it from justice, even granting that justice is not specified procedurally. Legitimacy allows an undetermined range of injustice that justice might not permit’, p. 428. 97 Richard A. Posner, The Problematics of Moral and Legal Theory, op. cit., p. 104. 98 Posner boldly claims, ‘Ironically, given its universalistic Outlook, Habermas’s theory (like Hart’s, Dworkin’s speaks far more directly to his national, namely the German, situation, than to the situation of other countries. Americans do not need to be instructed in the values of diversity, the unavailability of ‘metaphysical’ groundings for political principles, the importance of democracy, or the preconditions for legitimate political institutions. These things are features of our form of life, the taken-forgranted background of discussion and debate’; ibidem, pp. 106–107.

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than for everyone affected by the law to pursue communicative action-taking and to redefine the social power under the terms of communicative power. The proposal of a formal understanding of the idea of autonomy has aroused many doubts: Who are citizens supplied with public rights? Who constitutes a demos (an indicated political sovereign), and can there be demois? Is it only about the (nation-) state or can the universalistic claims springing from the co-originality thesis initiate or create a more universalistic polity? Do the motivations and trust in the attempt on the part of citizens themselves matter? What does it mean, in fact, that all citizens are lawgivers—is it a viable idea or just a pure academic myth? These and many more controversies have questioned the idea of a formal understanding of autonomy; hence, it is not surprising that the proposal for constitutional patriotism, which is justified by this idea (and even stems from it), provoked other or further doubts. However, in order to sort through the questions as well as their possible answers, one must carefully look at Habermas’s most discussed presentation of the idea of constitutional patriotism.

4. Constitutional Patriotism—the Boat Metaphor and its Readings The decisive parts of the Habermasian considerations concerning the idea of constitutional patriotism are as follows. Of course, the interpretation of constitutional history as a learning process is predicated on the nontrivial assumption that later generations will start with the same standards as did the founders. Whoever bases her judgement today on the normative expectations of complete inclusion and mutual recognition, as well as on the expectation of equal opportunities for utilizing equal rights, must assume that she can find these standards by reasonably appropriating the constitution and its history of interpretation. The descendants can learn from past mistakes only if they are ‘in the same boat’ as their forebears. They must impute to all the previous generations the same intention of creating and expanding the bases for a voluntary association of citizens who make their own laws. All participants must be able to recognize the project as the same throughout history and to judge it from the same perspective99.

In the following part of the analysis, I refer basically to the most broadly and vigorously discussed moments of the quoted proposal.

99 Jürgen Habermas, “Constitutional Democracy. A Paradoxical Union of Contradictory Principles?”, op. cit., p. 775.

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1: ‘The same perspective’—this phrase indicates, I think, the same critical attitude-taking on the part of the predecessors and the actual participants in the project of self-constitutionalisation. This perspective embraces the following constituencies: a) The next generations undertake the same normative project ‘of creating and explaining the bases for a voluntary association of citizens who make their own laws’ as their forbears. However, this time, it should be undertaken as an explicitly normative attempt, that is, the one that is reflexively rooted in the formal understanding of the idea of autonomy, which is, on its part, supposed to justify this process of self-constitutionalisation100. The same normative project (that is, the project of self-constitutionalisation) offers ‘the best interpretation of the same constitutional rights and principles. These form the fixed point of reference for any constitutional patriotism that situates the system of rights within historical context of a legal community”101. Most precisely, at stake are the best constructions of human rights, which are embodied in, and for this very reason expressed as, constitutional principles (here, basic rights). This construction, understood in terms of the best interpretation, of human rights as constitutional principles, is made with the ‘device’ of discourse principle (D), that on its part is being institutionalised in the medium of law. The discourse

100 John Erik Fossum and Augustín José Menéndez in The Constitution’s Gift. A Constitutional Theory for a Democratic European Union (op. cit.) distinguish three conceptions of a constitution; two of them are sociological and one is strictly normative, which is at stake here (pp. 20–26). I will come back to this crucial distinction in Chapter V. On the sociological assumptions of the democratic constitutionalisation in Habermas, see Chris Thornhill, “Political legitimacy: A Theoretical Approach Between Facts and Norms”, Constellations, Vol. 18, No. 3, 2011 (pp. 135–169). Importantly enough, when Alexander writes on civil society, from the more sociological point of view, however, he writes in a similar vein that emphasises the normative project as a point of reference for its understanding: ‘civil society is a project. It cannot be fully achieved, even in the fullest flush of success. (…) The idea of civil society is transcendental. Its discourse and institutions always reach beyond the here and the now, ready to provide an antidote to every divisive institution, every unfair distribution, every abusive dominating hierarchy’, Jeffrey C. Alexander, The Civil Sphere, Oxford University Press, Oxford, New York, 2006, p. 9. 101 Jürgen Habermas, The Inclusion of the Other, op. cit., p. 225.

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principle (D)—or discourse rules—is ‘merely the form’102 in which we may argumentatively come to an understanding with others. It comprises rules enabling us to reach an understanding with regard to norms as intersubjectively legitimised103. These rules, while being institutionalised in the medium of positive law, form the legal code that is being further, in democratic procedures, saturated by citizens in normative content. The process of saturation in the normative content then determines the democratic articulation and thus the democratic justification of basic rights, which are here understood as the best interpretations of universalisable normative claims (that is, human rights taking all citizens as human beings)104. Therefore, as John Erik Fossum and Augustín José Menéndez highlight, this code of law-making constitutes ‘the bedrock of democracy’, as the laws of law-making ‘are needed in order to configure and bootstrap democracy’105.

102 Jürgen Habermas, Moral Consciousness and Communicative Action, trans. Christian Lenhardt, Shierry Weber Nicholsen, The MIT Press, Cambridge, Massachusetts, 1999, p. 91. 103 This means that not just the social currency of the norms in question is recognised (their social or/and institutional force); as validity claims, their worthiness is also recognised with regard to the discourse rules as forms of argumentation enabling us to reach an understanding on normative issues; ibidem, p. 61; I will discuss this in more depth in Chapter IV. 104 Thus, the concept of constitutional principles refers to either the legal code as the laws of law-making that meet the co-originality thesis or to basic rights as interpretations of universalisable normative claims (human rights, notably) that express the most profound saturations of the legal code with regard to the principium of universalisation. This differentiation is definitely not superfluous; it is meant to leave a constitutional space open for legitimised interpretations of basic rights. Put differently, on the co-originality thesis approach, from the perspective of the rule of law, one may talk of laws of law-making, and from the perspective of the principle of democracy, one may talk of basic rights—while referring to constitutional principles. Since basic rights are the best—always here and now—interpretations of universalisable claims, when one refers to the universality of normative claims and takes into account citizens as human beings, then one makes reference to human rights, and when one takes into account democratically justified interpretations of universalisable normative claims, then one refers to basic rights. The institutionalisation of discourse rules does not mean the institutionalisation of human rights (that would mean the equivocation of the principle of discourse with the principle of universalisation), but this institutionalisation of the discourse rules enables the articulation (that is, a constructive interpretation) of universalisable normative claims. 105 John Erik Fossum and Augustín José Menéndez in The Constitution’s Gift, op. cit., p. 25. As Todd Hedrick says “the system of rights represents a reconstruction

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Undoubtedly, what is of paramount importance in the above-quoted passage is that the understanding of the same normative project of self-constitutionalisation presumes—and here appears the first non-trivial assumption made, in my view, in the quotation—that all interpreters ‘must impute to all previous generations the same intention’. This assumption is non-trivial because its introduction dissolves the well-known theoretical problem concerning the significance and role casted by the intentions of the fathers-founders of any constitution. According to this assumption, the previous generations had the same intention as the next generations have (that is, every next generation has)106. I will offer a more detailed analysis of this important point in some passages below. b) The participants, therefore, must reinterpret the past—specifically, the legal history of interpretations of rights and laws—taking also into account the breadth and scope in which the same normative idea of self-constitutionalisation has so far been accomplished (that is, to what degree) as well as advanced, which indicates that the graduation (and not simply a quantity) of the process of making the idea come true under the historically changing circumstances should be taken into account107. In brief, it follows from this

of the kinds of legal rights that a constitutional order must confer upon participants in democracy in order for those participants to have justifiable confidence in the rational acceptability of the democratic process”; Todd Hedrick, “Coping with constitutional indeterminacy. John Rawls and Jürgen Habermas”, Philosophy & Social Criticism, Vol. 36, No. 2 (pp. 183–208), here pp. 191–192. 106 Quite similarly seems to see it Ciaran Cronin when he writes that: “the founders and later generations must share an intuitive understanding of what it means to engage in a democratic constitutional project”; Ciaran Cronin, “On the Possibility of a Democratic Constitutional Founding: Habermas and Michelman in Dialogue”, op. cit., p. 358. 107 As Ciaran Cronin neatly highlights, ‘All those involved in the political process must be able to agree in retrospect that the historical process of (re)interpreting and revising the constitution exhibits a gradual extension of basic rights to increasing numbers of social groups, so that equal individual liberties are gradually extended to members of groups who previously suffered discrimination, and the political rights of those hitherto excluded from full political participation are progressively guaranteed’.; Ciaran Cronin, ibidem, p. 356; however, it seems quite important to add the need for improvement and broadening the emancipatory rights, which pretty often at the very moment of their introduction (that is, their enactment) have negative side effects, and therefore cannot be entirely exercised in certain structural or economic situations or feed the opposition and so forth.

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that citizens-interpreters (every new generation of them) are supposed to have a critical attitude towards the history of constitutionalisation with regard to a constitutional culture, which ‘mediates between universal norms and particular contexts. One might also say that constitutional culture itself is then formed through what could be envisioned as a circular process, in which constitution, constitutional culture and cultural (including national) self-understanding in a more general sense come to influence and, ideally, reinforce other’108. More broadly capturing the issue, citizens are supposed to also have a critical attitude towards political culture, which certainly has changed, as it has been changing from generation to generation, proffering new theoretical terms and new practical institutional settings as frameworks for reinterpreting and applying the normative idea. I will come back to this (to the relation between a constitutional culture and a political culture, and the relevance of the relation) and discuss it in detail in some passages below. c) The new generations of citizens-interpreters are to be aware, just like their forebears, that they are participating in an open-ended process of interpreting the universalisable normative claims, and subsequent generations will do the same, that is, they will critically modify them in the name of the same normative project of self-constitutionalisation. As Habermas highlights, in explicit opposition to the Rawlsian theory of justice, ‘a constitution can be thought of as a historical project that each generation of citizens continues to pursue’109. Accordingly, the phrase ‘the same perspective’ refers to the metaphor of ‘being in the boat’. This means that as the boat sails the river that flows to the sea and that goes to the ocean, so the participants, like sailors, sail the river of open-ended debates concerning the currently viable interpretations of universalisable normative claims (human rights), which are from the perspective of self-constitutionalisation: basic rights. The perspective from ‘the same boat’ is thus unchangeable, as it is on the run to keep on the course towards ongoing debates regarding the viable interpretations of the same normative idea of self-constitutionalisation110, which are held under changeable socio-political and historical circumstances. This specific situation influences the consciousness of citizens, who live like any other generations in the acknowledged time of transitions, whereby the law—including the 108 Jan-Werner Müller, “A European Constitutional Patriotism? The Case Restated, European Law Journal, Vol. 14, No. 5, September 2008 (pp. 542–557), here p. 548. 109 Jürgen Habermas, The Inclusion of the Other, op. cit., p. 203. 110 Compare Alessandro Ferrara, “Of Boats and Principles…”, op. cit., p. 785.

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constitution—is conceived as the law-in-the-making. In that regard, I entirely agree with Ciaran Cronin, who concludes that ‘openness and incompleteness, therefore, are necessary implications of the ideal of democracy as self-rule on the procedural model: Only if later generations are free to challenge existing laws and constitutional interpretations can the coercive imposition on them of a constitutional order in whose founding they themselves were not directly involved be consistent with their public autonomy’111. This all makes the participants in the constitutional enterprise accountable for ‘keeping on the course’ in the face of history, namely, in the face of the next interpretations of constitutional rights as expressions of universalisable normative claims. This implies that the real challenge highlighted here is, in the name of the same normative idea of self-constitutionalisation, to keep the debates on constitutional rights always open, to always hold onto them and involve in the process all addressees of the law, who should be able to understand themselves as always also their own law-givers. In order to fully comprehend what kinds of legal-political possibilities (institutions), which enable meeting these demands, are required on this approach, one must have in mind that ‘citizens are not asked to agree or accept a particular constitution in all its specificity at a particular point in time—this would again be an unhelpful restrictive positivist notion of constitutional patriotism. It is perfectly reasonable for citizens to disagree even about some constitutional essentials’112. Only due to the assumption that the process of legal constitutionalisation also embraces discursive forms of its contestation and disagreement (including both the process and its outcomes), and not only a oneway search for the agreement at any price, the requirement of autonomy may be met. Paradoxically, then, it follows from this perspective that the legal positivity of law signifies that the law, including constitutional norms (or even human rights) 111 Ciaran Cronin, “On the Possibility of a Democratic Constitutional Founding…”, op. cit., p. 357. As Erik Oddvar Fossum and Jarle Weigård put it, ‘Votes therefore represent only temporary stops in the continuous discussion about what should be done. In so far as the various groups have equal conditions for making their cause known and fight for it, they will accept “wrong” decisions. Such a procedural interpretation of a majority principle makes it consistent with the concept of freedom, when it is not applied to irreversible decisions’; Erik Oddvar Eriksen, Jarle Weigård, Understanding Habermas. Communicating Action and Deliberative Democracy, Continuum, New York, London, 2003, p. 170. 112 Jan-Werner Müller, “A European Constitutional Patriotism?…”, op. cit., p. 546; compare Todd Hedrick, “Coping with constitutional indeterminacy…”, op. cit., p. 195.

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may be changed, because it is enacted by the people for the people113. Having that in mind, one may state that institutional interpretative pluralism that balances order and change, agreement and disagreement, may complete the idea of institutional patriotism, vide, self-constitutionalisation on the level of institutional order, if and only if, it meets strong democratic credentials. The said term—perspective—depicts here the renewal of the same project, and thus, the perspective is unchangeable. It anchors the project in the continuous history of self-constitutionalisation, because the constitution is grasped under the terms of the historic project of self-constitutionalisation. The self-constitutionalisation conceived as a historic project reveals itself to be embedded in the developing (or at least changeable) constitutional culture and, from the broader perspective, in the political culture. Therefore, the constitutional culture seems to influence or partially overlap a political culture in a democratic society founded on the co-originality thesis. In my view, their common field of concern appears to form a political morality. It is conceived as the relationship between the constitutional culture and the general political culture. To understand the political morality, it is decisive to answer questions about whether the general political culture is viewed by the prism of deontological aspects of the project of self-constitutionalisation and/or (quite the contrary in fact) the constitutional culture yields to the current politics-making, current interests and collective self-expressions that are present in the public and have a strong impact on the self-understanding of the polity in question. The concept of political morality for which I am arguing, due to its most general sense, supports a normative (deontological) reading of the constitution, in providing and sustaining the guarantee that the social practice of applying the constitutional norms does not lose the normative dimension of the constitution. The constitutional culture pays heed to constitutional readings and constitutional argumentations114 which put the requirement of providing a wide scope for an institutional interpretative infrastructure and, within that structure, an appropriate practice that embraces the legislature (and its statutes), constitutional courts and their review of the constitutionality of different laws115. The point is that the legal

113 Erik Oddvar Eriksen, Jarle Weigård, Understanding Habermas, op. cit., p. 129. 114 John Erik Fossum and Augustín José Menéndez in The Constitution’s Gift, op. cit., pp. 34–35. 115 Todd Hedrick, “Coping with Constitutional Indeterminacy…”, op. cit., p. 192. Jon Mahoney, who employs Rawlsian and Dworkinian arguments, writes critically on the Habermasian proposal regarding the issue of the deontological reading of rights,

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system itself, that is, the utterance of normative universalisable claims, generates a diversity of institutional interpretative work. With that regard, the political morality is conceived to have a certain cooperative practice of legitimation and application (appropriate approximations of norms/their readings)116. Crucially, then, the concept of the political morality replies to the question of what breadth and scope politics is oriented at justifying only legitimised (that is, doing justice to the said concept of autonomy) processes of law production and their outcomes. Consequently, the concept of political morality, as the inextricable link between the constitutional culture and the general political culture, is to a considerable degree decisive for understanding the claim for the ongoing, processual constitutionalisation, or evolutionary making, of any polity117. Here, what is at stake is that Habermas himself writes that ‘the deontological character of noninstrumentalisable rights manifests itself in the fact that they constitute “threshold weights” against political policies and collective goods’118. The statement, I would say, clearly points out the indicator for the concept of political morality, which consists of the recognition of these basic rights as ‘threshold weights’ when faced with policies and collective goods. That is precisely the common focus of the Habermasian and Dworkinian interests in political philosophy, as they both take a deontological position, from which no collective goods nor collective interests would ‘trump’ the non-instrumentalisable basic rights (though embedded in their two diverse paradigms of law: proceduralist and interpretative). Thus, the concept of political morality works as a double-edged sword, because it is oriented, on the one hand, towards safeguarding the normative reading of any constitution with regard to the whole array of its institutional interpretative enterprise, and, on the other hand, it plays a crucial role in mitigating and educating (in the sense of requiring a high level of self-reflexivity) the political culture and the politics-making, and thus, due to the proceduralist paradigm of law, its work also embraces processes of democratic socialisation within the political public sphere. My interpretation of the interrelations between these concepts that play a basic role in the field of practical philosophy seems to be in accordance with the analyses “Rights Without Dignity?: Some Critical Reflections on Habermas’s Procedural Model of Law and Democracy”, Philosophy & Social Criticism, Vol. 27, No. 3, 2001 (pp. 21–40). 116 Stephen Macedo, “Just Patriotism?”, Philosophy & Social Criticism, Vol. 37, No. 4, 2011 (pp. 412–423), here pp. 415, 419. 117 John Erik Fossum and Augustín José Menéndez in The Constitution’s Gift, op. cit., pp. 41–42. 118 Jürgen Habermas, Between Facts and Norms, op. cit., p. 214.

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provided by Erik Oddvar Eriksen and Jarle Weigård. For them, ‘a distinction is required between the cultural or value basis of a political order, which is dependent upon a particular identity that prevails in the groups and nations that people are members of, and the constitutional properties of such an order. The latter does not rest upon a particular set of values but on transcultural norms and universal principles. (…) The basic structure of constitutional democracies, then, does not only express certain values or conceptions of the good society, but in addition a conception of a rights-based society’119. The concept of political morality, in this context, responds to the question of whether in the actual practice of law legitimation, which exists in a complex institutional infrastructure, this conception of a rights-based society prevails over the current interests and expressions of political self-understanding, or whether the interpretations of basic rights stem from the latter and the processes of law legitimation seem justified in the name of the currently dominating interests and particular groups’ self-expressions. Nevertheless, it must be stressed that the kind of relationship established between basic rights and collective values and/or interests is fundamental to answer the question of what kind of political morality is dominant in a given polity, and it does not call for the exclusion of ethical self-understanding or the interests from political life or from any arguments relevant for law legitimation. As Pablo De Greiff rightly points out ‘in Between Facts and Norms Habermas has now opened up room for such a teleological dimension of valid law: He now specifically argues that in the justification of laws, pragmatic and ethical considerations rightly play a role’120. But playing a relevant role does not mean also playing a leading role—in the case of political morality, this leadership takes the requirement of the recognition of basic rights, and respectively, of the impartiality of the judgements justifying laws. As this impartiality is a leading and distinctive normative element with regard to the principium of universalisation (U), the core of political morality is designed by the deontologically interpreted basic rights 119 Erik O. Eriksen, Jarle Weigård, Understanding Habermas, op. cit., p. 246. 120 Pablo De Greiff, “Habermas on Nationalism and Cosmopolitanism”, op. cit., p. 422; De Greiff briefly and on point elucidates the pedigree of the abovementioned three kinds of arguments used in public justifications: ‘Following Kant, Habermas holds that what makes moral norms distinctive is that they raise a universal validity claim, and so differ both from pragmatic discourses, the validity of whose conclusions— Kant’s “imperatives of skill” is contingent on the commonality of particular ends, as well as from ethical discourses, whose claims—“counsels of prudence”—are valid only for members of a community which already shares a tradition and its strong evaluation’, ibidem.

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which form ‘threshold weights’, as Habermas states. That means that the basic rights need to be recognised as that what ‘trumps’ either the collective goods or collective interests. All these investigations provide the reasons for the conclusion concerning the idea of constitutional patriotism in terms of a constructivist interpretation that Habermas explicates. The latter indicates the interpretative condition under which it is possible to get involved with the past generations that participated in the process of the self-constitutionalisation and to exchange pro and con arguments for certain viable interpretations of the same normative project121. 2: ‘The same standards’—this phrase seems to have at least two points of reference. a) Having presumed the same intentions of all citizens-interpreters, in the sense analysed above, let us again focus the investigation on the unchangeable perspective of a never-ending and interpretatively open journey through constitutional debates which, in my view, must have a complex interpretative structure, if this structure is to function as the perspective of ‘the same boat’ and not simply the perspective of the same harbour. That is the reason for interpreting the constitutional process122, spread across the relations between former formulations of rights and rules and the next generations of citizens-interpreters who must cope with those formulations, as a learning process123. In order to interpret this process, I propose the following terms: (i) Past evoking—reformulations of the norms understood as a certain utterance of universal normative principles. (ii) Future invoking—the said reformulations proceed in light of the same normative idea of self-constitutionalisation within the democratic institutional setup. 121 The other important moment is, what Ciaran Cronin rightly points out, that ‘Habermas must assume that social actors are already committed to the practice of resolving normative disagreements through discourse, since this is a precondition of the efficacy of the discourse-internal standards of validity’; Ciaran Cronin, “On the Possibility of a Democratic Constitutional Founding…”, op. cit., p. 353. This will show the burden of its significance in the next subsections and chapters. 122 This means understanding the process of constitution-making as an evolutionary route; compare John Erik Fossum and Augustín José Menéndez in The Constitution’s Gift, op. cit., p. 42. 123 Bonie Honing, “Dead Rights, Live Futures: A Reply to Habermas’s…”, op. cit., p. 797.

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(iii) Present involving—this proceeds with reference to the current sociopolitical situation, political culture and what will eventually be the current constitutional culture (self-reflexively). Introduced above, the same structure of a constitutional process as a learning process forms the same standards for constitutional interpretations. Here, a constitutional culture is revealed to be ‘certain styles of political claim-making and contestation, as well as ways of (at least temporarily) agreeing to disagree’124 in at least a triple sense, directly referring to the triple structure of the same standards of the constitutional process as follows. (i) With regard to the history of self-constitutionalisation, this means its formation of the interpretations of constitutional principles. (ii) Constitutional interpretations concern the processes of cooperatively interpreting the normative idea of self-constitutionalisation. (iii) They need to proceed within the institutional framework designed to meet strong democratic credentials (due to the proceduralist paradigm of law), that is, through processes of (a) public justifications of basic rights and rules or (b) public justifications of the specifications (applications) of basic rights and rules, which Frank I. Michelman rightly differentiates125, but those moments seem to be necessarily correlated126. Habermas explicitly states that ‘the question of the context-specific application of universal norms should not be confused with the question of their justification. Since moral norms do not contain their own rules of application, acting on the basis of moral insights 124 Jan-Werner Müller, Constitutional Patriotism, op. cit., 2007, p. 57. 125 Frank I. Michelaman, “Morality, Identity and ‘Constitutional Patriotism’”, op. cit., p. 267: ‘From the standpoint of justification, there are always two alternative ways to describe over constitutional interpretation involving constitutional essentials. We can see them as debates over the meanings or applications of a set of canonical items, already securely certified to be acceptable to everyone as reasonable, come what may in disputes over how to apply them. Or we can see them as debates over which of the contesting meanings or applications will render these items acceptable to everyone as reasonable’. 126 This triple structure of constitutional interpretations may, naturally, give rise to the question about autonomy or the lack of autonomy of the interpretation of constitutional terms. However, this issue is far beyond the scope of this article. Tomasz Stawecki provides a more in-depth discussion of the problematics, “Autonomous Constitutional Interpretation”, International Journal for the Semiotics of Law, Vol. 25, No. 4, 2012 (pp. 505–535).

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requires the additional competence of hermeneutic prudence, or in Kantian terminology, reflective judgment’127. It may be presumed that we think—at least at the post-conventional stage—in terms of norms, notably, in terms of the procedural justification of norms qua providing arguments in favour of certain norms. The phrase ‘the same standards’ of ‘interpretation of constitutional history as a learning process’ emphasises the sustained demand for reinterpreting the normative idea (universalistic claims) in the changed socio-political circumstances, where reinterpreting means renegotiating as a mode of a public search for the best justified reasons for constitutional interpretations and/or constitutional changes (Michelman points out both senses). Therefore, the constitutional interpretation is to be understood as a part of the never-ending, open-ended128 and thus always incomplete process within which the interpretations of basic rights are never given and/or created definitively but are always in need of further reinterpretations and saturations in content by the next generation(s). That is, I repeat, the positivistic feature of modern law.

127 Jürgen Habermas, Moral Consciousness and Communicative Action, op. cit., pp. 179–180. 128 Ciaran Cronin, “On the Possibility of a Democratic Constitutional Founding…”, op. cit., p. 357. As Erik Oddvar Fossum and Jarle Weigård put it, ‘Votes therefore represent only temporary stops in the continuous discussion about what should be done (Habermas 1996a: 179). In so far as the various groups have equal conditions for making their cause known and fight for it, they will accept “wrong” decisions. Such a procedural interpretation of a majority principle makes it consistent with the concept of freedom, when it is not applied to irreversible decisions’; Erik Oddvar Eriksen, Jarle Weigård, Understanding Habermas, op. cit., p. 170. Richard Bellamy provides a similar argument that ‘people typically accede to a democratic vote to resolve rather than to dissolve, their continuing disagreements. Indeed, democracy’s attractiveness lies in its not requiring their substantive agreement in order to arrive at an agreed decision. It simply offers a fair way of overcoming differences of opinion that is not intrinsically biased towards any given decision. This fairness consists in treating different views on an equal basis and responding to the majority opinion. It also allows mistakes to be corrected and the losers to try again by permitting the periodic revision of decisions and the removal of those responsible for them’; Richard Bellamy, “Still in Deficit: Rights, Regulation, and Democracy in the EU”, European Law Journal, Vol. 12, No. 6, November 2006 (pp. 725–742), here p. 730.

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With regard to the triple structure, which is based on the three time modes129, the constitutional interpretations may be deemed to proceed as a specific synthesis. John Erik Fossum and Augustín José Menéndez make such a claim, and they introduce a theory of constitutional synthesis with reference to the constitutional law of the EU130. However, their complex theory is based on the differentiation of conceptions of a constitution, the constitutional dynamics and levels at which the normative synthesis proceeds: system of norms, legal-political institutions and public spheres. What is important in this context is that the synthesis is a normative synthesis. The Habermasian demand, imposed by the co-originality thesis based on the abstract understanding of the term autonomy, is met when all three structural moments of the same standards are prevented—a moment concerning elaborating universal claims, a moment concerning reinterpreting the history and thus selfunderstanding of the polity in question, and a moment of taking into account the demands of the present socio-political situation—that is, when public justifications concerning all these moments are held and they are kept open to further public debates involving all citizens as simultaneous addressees of law and law-givers131. As Habermas explains, ‘on this premise, each founding act also creates the possibility of a process of self-correcting attempts to tap the system of rights ever more fully’132 in order to make the normative premise of the universalisation of norms (which is indicated here by the idea of self-constitutionalisation) as viable as it is possible. Here, three time modes appear as the basic triple structure of the same standards of the process of ‘reasonably appropriating the constitution and its history of interpretation’. This basic triple structure is now understood to consist of

129 On the synthesis based on the triple time modes see Martin Heidegger, Kant und das Problem der Metaphysik, Vittorio Klostermann, Frankfurt am Main, 1991, GA3. I analyse more in-depth this three time mode synthesis in Karolina M. Cern, Koncepcja czasu wczesnego Heideggera [The Conception of Time by the Early Heidegger], Wydawnictwo Naukowe Instytutu Filozofii, Poznań, 2007. 130 John Erik Fossum, Augustín José Menéndez, The Constitution’s Gift, op. cit. 131 Ciaran Cronin, “On the Possibility of a Democratic Constitutional Founding…”, op. cit., p. 356: ‘The founding lays down a system of rights whose “normative substance” remains to be realized by subsequent generations who interpret and adapt the system of rights in the course of legislating for specific problem situations. To the extent that this historical process develops in a democratic fashion, the founding is legitimated retrospectively by the constitutional “project” it initiates’. 132 Jürgen Habermas, “Constitutional Democracy. A Paradoxical Union of Contradictory Principles?”, op. cit., p. 776.

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a constitutional self-explication comprehended as critical reflexive attitude-taking (past evoking) on behalf of the shared normative idea of self-constitutionalisation (the future invoking) and emancipating all citizens for a deeper and wider cooperation (the present involving). Hence, Müller rightly states that ‘what matters is a kind of critical, highly self-conscious back-and-forth between actually existing traditions and institutions, on the one hand, and the best universal norms and ideas that can be worked out, on the other’133. Therefore, this constitutional explication consists of a learning process that is a ‘highly self-conscious back-and-forth’ incessant move through the triple structure of the standards of (self-) interpretation. b) The phrase ‘the same standards’ in the above quotation corresponds to the concept of ‘the normative expectations of complete inclusion and mutual recognition, as well as […] the expectation of equal opportunities for utilizing equal rights’. Since, at the level mentioned above, the phrase refers to the standards of interpretation stemming from the same unchangeable perspective, the phrase now indicates the schema of saturating the normative idea of self-constitutionalisation in the normative content. Here, the idea gathers together the previous Habermasian considerations aimed at balancing both the liberal and republican traditions as (in each case) highlighting quite basic and elementary grounds for understanding the concept of polity. These are self-determination and self-understanding, indicating, respectively, the morallegal inclusion of all citizens by formal rights and the ethical-political recognition of persons and co-citizens. In addition, as the German philosopher introduces the proceduralist paradigm of law, in which the basic rights are not conceived as rights against government but rights that socialise democratic citizens, and therefore discursive participation in the public sphere constitutes its centre, so no less important in this schema are the aforementioned equal opportunities which are to fill the social and structural gaps or discrepancies of the possibilities among persons/citizens for exercising their equal rights. Thus, I agree with Müller that the object of attachment ‘is ultimately the very idea of citizens mutually justifying political rule to each other—and thus, in the end, the moral intuition that things should not just be done to people’134 as the common action norms must not be imposed on citizens ‘from above’. In fact, this idea, together with the correlated abovementioned intuition, constitutes the source and basis for formulating the normative content of ‘the same 133 Jan-Werner Müller, Constitutional Patriotism, op. cit., p. 29. 134 Ibidem, p. 58.

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standards’. Elaborating universal normative claims always leads to ‘expectations of complete inclusion’ which are bounded by a critically reflexive attitude towards the past and give voice to all vulnerable groups that lack recognition. Nonetheless, the embodiment of complete inclusion through basic rights is possible only when we account for the current socio-political situation that leads to the construction of equal opportunities for realising equal rights135, including political rights that secure political participation and a political voice with regard to the decision-making processes. As rightly states Amy Allen ‘a relatively equal distribution of social power facilitates, whereas an unequal distribution of social power restricts, the generation of communicative power and hence the possibility of political autonomy’136. Finally, legal constitutionalisation may obtain an actual legitimation only when it develops hand in hand with horizontal constitutionalisation that proceeds in lifeworlds, wherein living interactions take place and form the matter of an abstract law. 3: Initial conclusions According to this interpretative perspective, the next generations are supposed to come out from the formulation of a normative idea towards previous attempts to formulate basic rights and then reinterpret them in front of the current demands and constraints in order to obtain a viable reformulation of the idea of self-constitutionalisation. Here, ‘a nontrivial assumption’ made by Habermas comes to the fore. The matter is that the next generations must recognise the former generations as people who exerted the same effort that the current generation does. On this point, Alessandro Ferrara sees a grave problem: ‘[to be] in the same boat as 135 Pablo De Greiff, “Habermas on Nationalism and Cosmopolitanism”, op. cit., p. 436 Compare also José Manuel Aroso Linhares, “Jurisdição, diferendo e ‘área aberta’. A caminho de uma ‘teoria’ do direito como moldura?”, Studia Juridica, Universidad de Coimbra, Vol. 101, 2010 (pp. 445–477), especially pp. 462–465. 136 Amy Allen, „The Unforced Force of the Better Argument; Reason and Power in Habermas’ Political Theory”, Constellations, Vol. 19, No. 3, 2012 (pp. 353–368), here p. 358. Her interesting thesis is that Habermas makes in Between Facts and Norms a ‘distinction between the internal and external tensions between facticity and validity. (…) These two tensions map on to two basic distinctions in Habermas’ conception of power. Related to the internal tension is the distinction between communicative and administrative power, which are connected but also kept separated by the mechanism of law; related to the external tension is the distinction between communicative and social power, which are kept separate but ultimately linked by the methodological distinction between the quasi-transcendental project of rational reconstruction and the empirical analysis of power. In both cases, the normative concept of communicative power is counterposed to a kind of strategic power, since administrative and social power are both defined in instrumental and strategic terms’, ibidem, pp. 359–360.

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their forebears’ means to him to bring to fruition ‘the same political ideals and within an intergenerationally shared horizon (…) coming to the same conclusions that the predecessors drew concerning rights, namely, understanding those rights as ones that they themselves would have chosen to reciprocally grant one another’137. In my interpretation, the phrase in question does not imply that this understanding would come about as neither ‘the same political ideals’ nor an ‘intergenerationally shared horizon’. Instead of ‘the same political ideals’, but following Habermas, I point out the role played by ‘the same normative project’ consisting of ‘creating and explaining the bases for a voluntary association of citizens who make their own laws’, due to the presumed moral intuition, uttered by Müller, that ‘things should not just be done to people’. Therefore, my position is that the idea of ‘the normative project’, namely, self-constitutionalisation, should not be interpreted as equivalent to the term ‘political ideals’, because ‘political ideals’ are those terms in which the current demands for the inclusion of others (inclusion of diverse particular collective self-understandings, diverse particular group interests that have been so far marginalised, for example) are to be uttered, and these demands may be accomplished during the process of making the normative project viable. If a normative project is not supposed to be an empty and abstract claim, then it must handle the particular political context, understood and interpreted in terms of political ideals (e.g. political equality, social recognition, civic empowerment). In other words, changeable from generation to generation, socio-political and economic circumstances modify ‘political ideals’ (and the political culture). They become related to a constitutional culture which ‘mediates between universal norms and particular contexts’138, as Müller states. This signifies that ‘the normative project’ of a self-constitutionalisation indicates some universal principles (basic rights) which are to be referred to in particular (changeable) contexts, on the basis of a reflexive critical attitude towards the past. Attempting to do this entails explaining any particular context in terms of the most important and basic common political ideals which determine the self-understanding of the polity and its institutional settings as frameworks to which universal norms are to be applied. Alternatively, one may say that from the perspective of the ‘normative project’, the issue concerns forming universal principles further saturated in normative content during public debates. Thus, universal principles are supposed to meet political ideals in public 137 Here, Ferrara sees a problem: Alessandro Ferrara, “Of Boats and Principles…”, op. cit., pp. 784–785. 138 Jan-Werner Müller, “A European Constitutional Patriotism?”, op. cit., p. 548.

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debates—that is the role of the practical power of judgement transferred from the concept of a (monological) subject to the (dialogical-discursive) public sphere. The public use of reason reveals an inextricable dependence on the practical power of judgement that operates in public discourse, transforming citizens’ opinions into the political will of the citizenry as the sovereign. Ferrara’s interpretation of constitutional patriotism relies on the above-quoted ‘intergenerationally shared horizon’, while mine relies instead on shared intentions for the sake of carrying out the same normative project. Thus, in opposition to Ferrara, I claim that what is needed here are just different horizons of understanding (culturally, institutionally diverse), which are—given their diversity—in need of critical reflection in order to bring to our clear attention what we—participants in the normative project—really want and intend to change. This interpretative proposal functions as a constructivist methodological presupposition intended to substitute Hans-Georg Gadamer’s thesis on the ‘fusion of horizons’ as a specific process-presumption for reaching a mutual understanding (or understanding on something, alternatively). In fact, Gadamer’s thesis renders the subject of interpretative processes ‘effective history’, while in Habermas’s practical philosophy, the ‘subject’ dissolves into communicative structures or, rather, into communicative actions themselves. In so doing, Habermas, interestingly, seems to remain even more faithful to the Heideggerian deconstruction of the concept of the ‘subject’ than Heidegger himself. Therefore, any possible ‘fusion of horizons’ may solely result from releasing the potential of the rationalisation inscribed in the normative presumption of the same intentions (so, the direction of understanding becomes reversed). Taking this for granted, one may notice that even if the ‘subject’ is to be understood in terms of processes of communication (which are, by definition, ‘subjectless’), then—due to the discourse theory working in the background—it appears that these are processes of the self-constitutionalisation of citizens-interpreters; that is, the ‘subject’ is the cooperative reinterpretation of the history of self-constitutionalisation. As Habermas himself succinctly describes it, ‘a constitution that is democratic—not just in its content but also according to its source of legitimation—is a traditionbuilding project with a clearly marked beginning in time’139. Moreover, as an additional argument for this interpretative proposal, I recall Habermas himself. In Between Facts and Norms, Habermas explicates his standpoint on this issue in a specific ‘circular way’, namely, by quoting a certain paragraph from Ronald Dworkin’s Law’s Empire. Then, in the next step, he states that the quoted paragraph presents the full-fledged development of his own idea—the 139 Jürgen Habermas, “Constitutional Democracy…”, op. cit., p. 774.

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idea proposed years earlier in The Theory of Communicative Action, and from its very beginning polemical against Gadamer’s theory. This brings about the idea of a constructivist interpretation. Indeed, in my view, it suits the issue of the same intentions perfectly and, in particular, this constructivist interpretation is presumed in the idea of constitutional patriotism. Constructive interpretation is a matter of imposing purpose on an object of practice in order to make of it the best possible example of the form or genre to which it is taken to belong… We would then say that all interpretation strives to make an object the best it can be, as an instance of some assumed enterprise, and that interpretation takes different forms in different contexts only because different enterprise engage different standards of value or success140.

The above passage from Dworkin’s Law’s Empire illustrates the development of the concept of Habermas’s critical-hermeneutic procedure into a constructivisthermeneutic procedure (Dworkin) that is applicable to this object, which is a democratic constitution pertaining to the idea of constitutional patriotism, but Dworkin (especially in Dworkin’s later works) conceives of the constitution in axiological terms and Habermas on the deontological approach. Yet all constitutional interpretations, paraphrasing the quotation, strives to make a constitution the best it can be. From this, it follows that the ‘nontrivial’ premise—the same standards of constitutional interpretation—is a constructivist premise in fact. Its structure of interpretation is stretched over: (i) past evoking, where the reformulation of the found norms is understood as a certain utterance of universal normative principles, (ii) future invoking, proceeding with this reformulation in light of the same normative idea of self-constitutionalisation, and (iii) present involving, with reference to the current socio-political situation, political culture and the current constitutional culture (self-reflexively). As Habermas argues, ‘each national constitution represents a historically different way of constructing the same—theoretically reconstructible—basic rights, and each positive legal order implements the same basic rights in a different form of life’141. Why are they the same? Because they must remain—due to the normative

140 Ronald Dworkin, Law’s Empire, The Belknap Press of Harvard University Press, Cambridge, Massachusetts, 1986, pp. 52, 419n2; quotation intentionally follows Habermas’s Between Facts and Norms. 141 Jürgen Habermas, “Reply to Symposium Participants, Benjamin N. Cardozo School of Law”, transl. William Rehg, in: Michael Rosenfeld, Andrew Arato (eds.), Habermas on Law and Democracy. Critical Exchanges, University of California Press, Berkeley, Los Angeles, London, 1998, p. 400.

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project—‘compatible with universalist moral principles’142 in the sense that basic rights must claim to ‘represent[ation of] universal human rights’143. Without assuming the difference of the horizons (particular contexts) of understanding in the normative project, following Michelman, one cannot meaningfully distinguish between the problems related to the justification of basic rights and the problems related to their application. This is precisely with regard to the second case, of problems resulting from the justification of applications to particular situations, yet, still, with reference to the context of the whole legal order, since the last issue takes into account the historical situation of the polity in question, which is also explicable in terms of certain institutional settings and practices144. Hence, the problem of justifying a certain application relies on extremely important issues, such as the abovementioned common recognition of fundamental values and interests. However, basic rights should always prevail in decision-making, as Dworkin and Habermas univocally claim; yet values and interests, and the way they relate to the self-understanding of the polity, always matters. That is the reason why the processes of rationalising the identities arising from undertaking the same normative project affect the processes of applying basic rights. The unchangeable perspective of a never-ending and interpretative open journey through constitutional process (constitutional interpretations) is intergenerational. However, the horizons of understandings themselves are interpretatively constructed for the sake of (in the case of the Habermasian proposal) the same intentions, namely, the normative idea of self-constitutionalisation. Therefore, I agree with Honig, that ‘[If] we understand generational time as a self-correcting learning process, he [Habermas] positions himself between two established poles: against those who insists on the a-temporality of the constitution (e.g., original intentionalists) and against those, who insist on its mere temporality (realists as well as critical legal theorists)’145. A question that arises at this point concerns the role that is played by the normative project, towards which all generations have the same intentions. In my view, it should be regarded as a constructivist premise, in the sense of indicating the

142 Ibidem. 143 Ibidem. 144 Compare Mattias Kumm, “The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe Before and After the Constitutional Treaty”, European Law Journal, Vol. 11, No. 3, May 2005 (pp. 262–307), here p. 283. 145 Bonie Honing, “Dead Rights, Live Futures: A Reply to Habermas’s…”, op. cit., p. 797.

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conditions under which it is possible to interpret the universal norms in changeable socio-political circumstances, explicable in terms of political ideals. This constructivist premise springs from the application of the principium of discourse (D) to the medium of law. It becomes relevant with regard to the interpretative premise which would generate the same interpretative standards applicable to the constitutional process as a learning process. The very sense146 of the premise under investigation is that only such an interpretation, which is made according to the same interpretative standards (which assume the same universal normative project as their object), enables an understanding of previous constitutional attempts as well as their transformation into learning processes. The same intentions and efforts (the realisation of the same normative project) form a constructivist condition of making comprehensible both the former and future constitutional actions. However, it does not follow now that from the same and common intentions, any unambiguous agreement flows out concerning the way the common attempt should be made and would thus enable us to come ‘to the same conclusions that the predecessors drew concerning rights, namely, understanding those rights as ones that they themselves would have chosen to reciprocally grant one another’147. I definitely do not agree with Ferrara’s statement; moreover, the Habermasian explanation of the process of self-constitutionalisation as a learning process that enables self-correcting attempts seems to confirm my position on this point. The idea of constitutional patriotism provides a normative framework for understanding processes of Europeanization. Within this framework, the processes of integration by law are revealed as the medium through which come to light complex processes of reshaping national identities on one hand, and cooperative constructions of universalisable normative claims (basic rights of Euro-citizens) on the other; in other words, these are the interactions between the common

146 A sense, in general, is a formal structure within which something gains a meaning; compare Martin Heidegger, Sein und Zeit, Achtzente Auflage, Max Niemeyer Verlag, Tübingen, 2001, § 32, p. 151; ‘Sinn ist das, worin sich Verständlichkeit von etwas hält. Was im verstehenden Erschlißen artikuliertbar ist, nennen wir Sinn. Der Begriff des Sinnes unfaßt das formale Gerüst dessen, was notwendig zu dem gehört, was verstehende Auslegung artikuliert’. The formal structure here comprises the same interpretative standards on which the normative project is spread, and these very elements form the Auslegung in question. 147 Alessandro Ferrara, “Of Boats and Principles…”, op. cit., pp. 784–785.

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European constitutional culture and the Member States’ constitutional culture148. The tensions caused by the interactions between them may facilitate the strengthening of the role of the public sphere in terms of their intense influence on the processes of decision-making and, at the same time, trigger the increase of processes of the incremental rationalisation of lifeworlds. However, these two kinds of mutually interwoven processes are in need of both institutional complementation that implies the increasing empowerment of citizens as well as of the spontaneous sustaining communicative interactions. In the aftermath of the latter, transnational public spheres may come into existence that entail the emergence of so-called public solidarity. Thus, at the end of the day, this reveals that there is no inclusion of the other without the recognition of the other in both legal terms and in the ‘living relations of reciprocal recognition’149 and, in addition, it involves a constant renegotiation of the terms articulating equal opportunities for utilizing equal rights. Therefore, in my view, the idea of constitutional patriotism, as formulated by Jürgen Habermas, is not to be understood either in terms of ‘legal patriotism’150 or ‘national patriotism’. Rather, it binds the emancipatory force of a (cosmopolitan) civic perspective with a constitutional debate. The idea of constitutional patriotism accentuates the conjunction of the processes of legitimate law-making and processes of transformation from opinion-formation into will-formation. In other words, I claim that constitutional patriotism stresses the conjunction between the public use of reason (constitution making and/or interpreting) and the public power of judgement (transformation from opinion- into will-formation). 148 Compare Marek Zirk-Sadowski, “Flexible Normative Space between the European Law and the Member State Law as a Source of Constitutional Identity”, in: Marek Zirk-Sadowski, Bartosz Wojciechowski, Karolina M. Cern (eds.), Towards Recognition of Minority Groups: Legal and Communication Strategies, Ashgate, Farnham, 2014. 149 Axel Honneth, The I in We. Studies in the Theory of Recognition, Polity Press, Cambridge, 2012, p. 41. 150 Paul Magnette criticises Habermas’s idea of constitutional patriotism as follows; ‘[it] only acknowledges universal norms. The aim here [which Magnette advocates] is to reclaim ownership of one’s history in a critical way, by reading it in the light of the universal principles born by the fundamental rights, and not to replace it by an abstract belief in formal principles’; Paul Magnette, “How Can One be European? Reflections on the Pillars of European Civic Identity”, European Law Journal, Vol. 13, No. 5, September 2007 (pp. 664–679), here p. 673. However, in the course of this article, I provide arguments concerning the same perspective of constitutional interpretations, which has a triple time mode structure, and as a result, I claim that processes of critical rethinking or reclaiming history are inextricably linked to the Habermasian idea of constitutional patriotism.

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5. A Further Explication of the Three Time Modes of the Constitutional Interpretation Habermas ‘propose[s] that we understand the regress [of the legal self-constitutionalisation] itself as the understandable expression of the future-oriented character, or openness, of the democratic constitution: in [this] view, a constitution that is democratic—not just in content but also according to its source of legitimation—is a tradition-building project with a clearly marked beginning in time. All the later generations have the task of actualizing the still-untapped normative substance of the system of rights laid down in the original document of the constitution’151. The quoted passage clearly voices the previously highlighted issues which I captured under the terms of the triple time mode structure. Therefore, (a) past evoking is indicated by the term ‘tradition-building’, which means, in fact, renegotiating the meaning and significance of the past; (b) future invoking is grasped by him under the terms of a future-oriented project consisting of the construction of expressions of universalisable normative claims legitimated by all their addressees, who are always also their authors and (c) present involving is expressed in terms of open-ended public debates involving all addressees of law and processes of political decision-making.

A) The Role of the Future I contend that the above portrayed idea is Heideggerian in spirit, because Habermas ‘turns that future into a ground’152. The future will always conjure the past with regard to what we collaboratively do now—this is the meaning of the statement that the democratic constitution ‘is a tradition-building project’. Therefore, the actual meaning of the beginning (or, in other words, of a meaningful trigger) of the constitutional process will become disclosed in the future by every new generation. Importantly, this beginning is understood in normative terms (as a normative project), and as such, it is, by definition, counterfactual. From this follows ‘the idea of procedural, future-oriented popular sovereignty along these lines renders meaningless the demand to tie political will-formation to the substantive a priori of a past, prepolitically established consensus among homogeneous members of a 151 Jürgen Habermas, “Constitutional Democracy…”, op. cit., p. 774 (emphasis added by KMC). 152 Bonnie Honig, “Dead Rights, Live Futures…”, op. cit., p. 797.

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nation (…)’153. The only concept of the ‘a priori of the past’ that might be justified with regard to this triple time mode structure of a constitutional interpretation is a formal a priori which presumes that there is always something that has happened and indicating the past as significant, though not determining giveness in need of cooperative elaboration in a discursive manner that necessarily takes into account the two complementary time modes. In other words, with regard to this understanding of the constitutional interpretation, each interpretation of the present and history comes out from the future and not from the emerging (ethical) historical circumstances. Thus, the normative project—a certain idea of how we, as free and equal persons, ought to autonomously and impartially commit ourselves to each other—provides possibilities, understood as interpretational orientations or indicators, of how to understand all that has happened so far and is currently happening, in order to make the normative project’s approximation viable (or, in order to be able to understand the interpretations of the constitution in question as the best interpretations of universalisable normative claims). This entails that constitutional interpretations must be understood as such a learning process which is a transformative process154. The constitutional learning becomes a constitutional transformation under the terms of meeting the requirement of private and public autonomy—imposed by the principle of discourse (D)—and the requirement of impartiality—imposed by the principium of universalisation (U)—that expresses in discursive processes of saturation the basic rights in the content. The above-proposed reading of the constitutional interpretation seems to better address the demands that arise on the part of the contemporary concept of the self-understanding of a political community. As Patchen Markell aptly argues, ‘in the postconventional stage, the intersubjective has a different meaning and weight; it refers not only to the actually existing others whose demands unilaterally determine the individual’s identity, but rather to the “anticipated” or “projected” community of others to which the postconventional subject appeals for recognition of his unique, autonomously formed identity’155. Indeed, in the 153 Jürgen Habermas, The Inclusion of the Other, op. cit., p. 137. 154 Compare Paul Healy, “Rethinking Deliberative Democracy: From Deliberative Discourse to Transformative Dialogue”, Philosophy and Social Criticism, Vol. 37, No. 3, 2011 (pp. 295–311). 155 Patchen Markell, “Making Affect Safe for Democracy? On ‘Constitutional Patriotism’”, Political Theory, Vol. 28, No. 1, Feb. 2000 (pp. 38–63), here p. 42. I shall come to the concept of the post-conventional stages of morality in the next chapter, while explicating in more detail the importance of the idea behind the Habermasian theory

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constitutional interpretation in question, the central role is played by the discursive construction of as many universal norms (basic rights) as possible, that is, norms that, to the greatest extent and scope, do justice to the (formal) concept of autonomy and the criterion of impartiality. Consequently, they both entail the inclusion of individuals as human beings participating in the political community that also secures their private rights, according to the said concept of autonomy. However, in this reading of constitutional interpretation, a specific tension is in-built between centrifugal emancipatory forces, drastically exceeding the particularity of lifeworlds and, on the other hand, the centripetal motivational drive of Versinnilichung of the lifeworlds. In this second case, the proper weight should be given to the processes of the motivational anchoring156 of constitutional transformations in the lifeworlds, because these transformations are in need of obtaining a necessary degree of transparency, of becoming understandable in terms of everyday patterns of conduct. These transformations, in other words, must become transparent in terms of shared values, and thus translatable into the teleological and/or strategic actions of an ordinary citizen. Since the two kinds of forces accentuate different aspects of the public use of reason (where this reason means both the normative power of the public construction of universalisable normative claims and the power of judgement), Habermas straddles them both, keeping a tight rein on a procedurally achievable consensus, that is, a consensus based on the transformation of reasons that transcend the peculiarity of the lifeworlds from the inside. The latter includes such an approach towards the public justifications of common action norms that they become outcomes of the transformations of citizens’ opinions growing outward from the lifeworlds, and on the other hand, these justifications legitimise the law of upward constitutional interpretations. Therefore, the public use of reason should be understood, in the first place, as the power of judgement. In this context, Honig doubts whether we can grasp the future in terms of progress157, because whatever happens (what kind of constitutional interpretations as upshots of learning, transformative processes may result and thus be deemed the best but also viable, with regard to the particular polity, interpretations of universalisable normative claims), depends on the individuals themselves, their (cultural) mobilisation and their ability to sustain certain democratic procedures. as well as behind the current debates referring to multicultural societies and participation in public spheres. 156 Jürgen Habermas, The Inclusion of the Other, op. cit., p. 225. 157 Bonnie Honig, “Dead Rights, Live Futures…”, op. cit., p. 795.

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However, if the progress is to be achieved and the reason is not to reveal a Cyclops (that is, since a Cyclops is blind to a cluster of issues including practical issues), then ‘citizens are asked to reflect critically upon particular traditions and group identities in the name of shared universal principles’158. They must actively participate in the public sphere; otherwise, the constitutional principles with their claim to universality will remain empty ideas or simply express the power of the majority. The second issue which comes into play here is that if citizens do not work out their habits of utilising institutions of freedom, then these institutions may crumble, as their existence depends on the citizens themselves. Essentially, this is a statement undoubtedly shared by Jürgen Habermas and Neil MacCormick.

B) The Role of the Past and Ethical Self-Understanding I stated previously that the denial of ‘the substantive a priori of a past’ does not rub out ‘the formal a priori of the past’, because ‘a constitution can be thought of as a historical project that each generation of citizens continues to pursue’159 in the changing political and social circumstance. Thus, the process of interpreting the historical giveness, from the perspective of the same normative future-oriented project, is supposed to continue across subsequent generations. Crucially, this reading of constitutional interpretation, which is grasped in terms of learning, transformative processes or even a normative synthesis which, on its part, extorts the democratic legitimation which anchors the motivational components of the addressees of the normative claims in lifeworlds, addresses the question of a collective identity (of the self-understanding of the polity in question). If the history, precisely, the tradition, is to be built within the normative projected (of course, its meaning and significance) through the discursive enterprise, then, one may ask how deeply this tradition has already managed to influence the normative project itself, namely, its current state of realisation (an explication and/or reformulation of universalisable normative claims called basic rights). A history, an appropriately understood tradition of the normative project’s performance (realisation), may seem to construct the field of understanding within which the current interpretations of the

158 Jan-Werner Müller, Constitutional Patriotism, op. cit., p. 28 159 Jürgen Habermas, The Inclusion of the Other, op. cit., p. 203.

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most fundamental problems come into public light and, then, are expected to be solved by making the normative project come true or, rather, be better realised, improved, corrected and so on, in the said public debates. Put differently, the problem that arises at this point is the degree to which the ethical self-understanding of the polity is open for constant reinterpretation and renegotiation; the degree to which it is reflected in every institutional formulation of the normative project; and how much of it is actually reflected in the constitutional transformations. Arguably, the question is whether—and how much—the current self-understanding of the polity is interwoven with its capability for transforming basic rights into the best interpretations of the universalisable normative claims, that is, its capability for taking a direction towards a constitutional learning process that increases the political, social and economic inclusion. The two issues (the democratic-discursive capabilities of citizens as inhabitants of lifeworlds, who must be able and capable to translate legitimate common action norms into everyday patterns of conduct, and who, on the other hand, are expected to support constitutional transformations in the abovementioned direction) are interconnected and seem to stem from the current institutional functioning of public institutions, where decision-making is carried out160. The flame of different interpretations of ‘ethical self-understanding’ is ignited by Habermas himself, for whom ‘every legal system is also the expression of a

160 This dependence of the two kinds of transformations (in the domain of constitutional and political cultures as well as in lifeworlds) in the current institutional functioning stems from the assumption—which I will discuss in greater detail in Chapter IV—that precisely in these institutions the (third) transformation from opinions into the will happens. Therefore, their role, as enabling the conditions of the said (two) transformations, is also ‘educational’ in this sense that the capability for causing transformations in the said two areas depends on the quality and scope of democratic-discursive procedures have been worked up in those very institutions. I find this formulation of the transformative potentials the most adequate (but it does not mean the best in general) response to the problem of the conflict-increasing or conflict-generating side effects of public debates. On this very important matter, see: Thomas McCarthy, “Legitimacy and Diversity: Dialectical Reflections on Analytical Distinctions”, in: Michael Rosenfeld, Andrew Arato (eds.), Habermas on Law and Democracy. Critical Exchanges, University of California Press, Berkeley, Los Angeles, London, 1998; Stéphane Courtois, “Habermas’s Epistemic Conception of Democracy. Some Reactions to McCarthy’s Objections”, Philosophy & Social Criticism, Vol. 30, No. 7, 2004 (pp. 842–866).

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particular form of life and not merely a reflection of the universal content of basic rights’161. In Between Facts and Norms, he points out that ‘legal material touches on collective goals and goods in a way that allows questions bearing on the concrete form of life to arise, if not questions of shared identity as well’162. It should not be surprising, then, that emotional and even national aspects of the notion of patriotism come to light in many interpretations of the idea in question. They do so under the terms of different value-orientations or hierarchies of preferences, which are underpinned by emotions as a strongly motivational component for action-taking. The above-highlighted transparency of values and/ or interests is a binding force for cognition and emotions. With regard to the proposed reading of constitutional patriotism, the futureoriented project is meant to serve as a basis (founding a shared perspective) for a negotiation between the past (tradition) and the present. Thus, it turns out that this triple structure provides the means for reshaping contemporary identities. Moreover, it even reveals that our identities are never simply transmitted, inherited from the past; quite the opposite, they become, in the critically reflexive confrontation between the future and the past, reshaped or even constructed as a reasonable link between the two other time modes. The impact of the future-oriented project also reinforces the self-reflexivity of the polity in their lifeworlds as well as in the self-reflexivity in the cultural dimension. However, a robust argument may be mounted from the other point of view. Namely, one may say that the transformative power of the constitutional process (that is, constitutional interpretations), as a learning process, depends on the reflexivity of lifeworlds, on their capabilities—communicative structures, democraticdiscursive competencies of citizens as persons. Therefore, the less reflexive the lifeworlds are, the fewer the capabilities and resources necessary for maintaining and sustaining constitutional transformations will be, and the more rigid the self-understanding of the polity will be.

161 Jürgen Habermas, The Inclusion of the Other, op. cit., p. 217. 162 Jürgen Habermas, Between Facts and Norms, op. cit., p. 154.

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C) An Explication of the Present The idea of construction163 refers to the future which reveals itself as a possibility for self-understanding. It is not about denying the importance of the past, traditions, individual biography or the common history of a certain society, but rather about the mode of understanding, aiming at the gathering together of what has been so far variegated or multipartited. The inevitable diversity of human (co-) existence and conduct can be unfolded in unity (that is, simply as making sense for them); however, of course, never in an empirical way (for an empirical dimension is diverse and must stay diverse by its definition), but rather by pointing out the possible underpinnings—the concept, the ideal, the regulative idea, in fact—of the reinterpretation of this diversity. This reinterpretation is not to be contingent and accidental; on the contrary, it must meet the requirement of founding new interpretative possibilities164. In other words, constitutional patriotism as a (constructivist) normative idea, in fact, explains the construction of a certain comprehensive framework that can hammer out the possibilities and conditions for arriving at the answers to the question, ‘Who are we?’ (i.e. self-understanding). Such answers can gather together as much of the diversity as possible. The gathering, which is not accidental, is underpinned by the idea of social solidarity (however, it is thought of here as an abstract 163 In my opinion, to understand this ‘normative idea’, we must firmly and originally understand the philosophical idea of the construction which appears for the first time expresis verbis in Martin Heidegger’s Kant und das Problem der Metaphysik, Vittorio Klostermann, Frankfurt am Main, 1991, GA3. Of course, the idea occurs in Kant’s The Groundwork of the Metaphysics of Morals and Heidegger just seems to reflexively elaborate this for himself (Immanuel Kant, Grundlegung zur Metaphysik der Sitten, in Werke in sechs Bänden, Band 3, Könemann, Köln, 1995). In the case of Heidegger, it comes only about the structure of an understanding grounded in the Kantian threefold synthesis of the pure imagination as the framework/enabling conditions for the formal structure of an understanding. I do not intend to just extrapolate transcendental philosophy onto investigations in the domain of the contemporary philosophy of law, since the idea is not the same as the concept. 164 For example, in the case of Kantian moral philosophy, the concern is with the conditions under which our will, which happens to be good as well as wrong (this double possibility is the way that any will’s diversity is embodied in every human being), becomes good, with no doubts or reservations. Kantian constructivism refers to the building of definite circumstances, namely, a necessary form of motives of human action (here, necessary is the maxim conformity to moral law), under which our will acts well, that is, as a reasonable will (and not just as an arbitrary one).

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connection) that still fulfils the requirement of the functional unity of the community in question. As Habermas often writes, the requirement of the social solidarity maintained in modern pluralistic societies is met by the law and ‘produced’ within an abstract political culture wherein processes of the public legitimation of law are clearly voiced. Thus, the idea of generating possibilities for the comprehensive unification of unquestionable diversity implies the following. A) In those possibilities, the open structure of understanding is inscribed. The aim and the very sense of the phrase ‘open structure’ is thought here to give rise to new alternatives, instead of limiting, closing or just recalling existing ones (as there always exists only diversity, and the sought after unity is the strategy of interpretation that assumes as little harm to plurality as possible). That is the reason why I agree with Patchen Markell when he writes that ‘constitutional patriotism is a habit or practice that refuses or resists the very identity’165, because any stable, solid identification closes the structure of asking questions and of generating new possibilities for answering them, especially if one comprehends ‘we’ broadly, that is, including the next generations. This is why, in my view, a circle (a turn-around) of the Kantian post-metaphysical shift is made: the task of the self-determination of the polity uncovers itself as a basic element of (ethical) self-understanding, which is constructivist in nature166. B) The normative burden of these possibilities that enable us to form answers is their inclusiveness. Now, it is thought of here as a double-kick turn: 1) First of all, the objectivity of the possibilities discussed here means precisely ‘inclusiveness’. To the extent that the possibilities enable people to participate in the processes of answer-giving or answers-building, in processes that are held in the public sphere (both informal and formal), their results can be deemed ‘objective’, because they are ‘inter-subjective’, and under proceduralist terms, as Habermas argues, they may be rationally acceptable. The concept of intersubjectivity refers to the contexts of the justification of an epistemic validity of claims as well as to a normative validity of claims. However, in these two cases, it means something different. In the first case, the justification of truth claims ‘always [exceed]

165 Patchen Markell, “Making Affect Safe for Democracy?”, op. cit., p. 54. 166 This thesis is strictly connected with the chargé against Habermas that he replaces the former shapes of Sittlichkeit with a democratic ethos founded upon discursivedemocratic virtues (or, as I claim, competences). This argument shall be examined in the next chapter.

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justification, [and thus] justification can never be final or complete’167, as the validity of these kinds of claims does not depend on the contexts of their justifications but is related to the concept of an objective world. In the case of the normative validity of claims, the structure is ‘justificationimmanent’168. And in the current considerations, the focus is directed at the normative validity. In this case, ‘the universality of moral claims pertains to the “horizontal inclusiveness” of speech acts’169; therefore, the greater inclusiveness is presumed at the level of basic rights, and thus the more universalizability of these claims is met at the level of the constitution, the better (the more profound) the legitimisation of the legal norms (that stem from the former) that must be in compliance with moral claims. To put the consequence of this statement succinctly, the more inclusive (here, in the sense of the discursive involvement of citizens) the normative framework is, the more ‘inter-subjective’ (that is, legitimised) is the possibility of counderstanding among the citizens, which means here (co-) understanding the diversity. The term ‘objectivity’ means ‘intersubjectivity’, and the latter relates to the term inclusiveness that betrays, on its part, the character of a normative requirement. 2) Second, following the chosen path unwaveringly, the source of the intersubjectivity appears to be understood normatively. Here, the source refers to the ‘horizontal inclusiveness’ as a necessary requirement for constructing a comprehensive framework for answers-giving, that is, for formulating reasons and challenging them, a comprehensive framework which includes as many people and their understandings of ‘who we are’ as possible, with neither temporal nor spatial constraints. However, the point is that ‘questions of self-understanding and self-realization, rooted as they are in particular life histories and cultures, do not admit of general answers (…) do not yield

167 Steven Levine, “Truth and Moral Validity: On Habermas’ Domesticated Pragmatism”, Constellations, Vol. 18, No. 2, 2011 (pp. 244–259), here p. 247; on Habermas’s conceptions of truth, objectivity and epistemic justification, see also Steven Levine, “Habermas, Kantian Pragmatism, and Truth”, Philosophy & Social Criticism, Vol. 36, No. 6, 2010 (pp. 677–695). 168 Steven Levine, “Truth and Moral Validity: On Habermas’ Domesticated Pragmatism”, op. cit., p. 250. 169 Ibidem.

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general prescriptions’170. Therefore, they are in need of ‘enlightenment’171, of a ‘hermeneutic explication’172 due to their mutually interwoven descriptive and normative components. Hence, although ‘Habermas affirms the Kantian thesis that truth and moral validity, theoretical and practical reason, are categorically distinct’173, the epistemic categories turn out to be, in a

170 Thomas McCarthy, “Kantian Constructivism and Reconstructivism: Rawls and Habermas in Dialogue”, Ethics, Vol. 105, No. 1, October 1994 (pp. 44–63), here p. 46. Courtois rejects this objection, presuming that it would undermine the epistemic credentials of Habermasian deliberative democracy if one concludes (like McCarthy does) that ethical-political discourse is deprived of validity claims to rightness (as analogous to truth); Stéphane Courtois, “Habermas’s Epistemic Conception of Democracy. Some Reactions to McCarthy’s Objections”, op. cit., 859ff. But I think this is the case in this sense, that ethical-political discourse has its own specific validity claim—from the very beginning, that is, since The Theory of Communicative Action—to truthfulness or sincerity, but not to truth nor rightness. Due to this specific kind of validity claim, the assessment of authenticity of individual or collective self-expressions is possible. May claims of this kind generate disagreements? Yes, they may. And because ‘arguments that serve to justify standards of value do not satisfy the conditions of discourse’ (Jürgen Habermas, The Theory of Communicative Action, Volume I, Reason and the Rationalization of Society, trans. Thomas McCarthy, Beacon Press, Boston, 1984, p. 20), on one hand, they must be filtered through the critical attitude, due to which reasons may find their place (ibidem, pp. 21–22), but then we may instead refer to processes of hermeneutical self-understanding (I/we), and on the other hand, we may expect this kind of discourse to be (critically) rationally filtered, in the sense that presuppositions pertaining to discourses oriented at validity claims to truth or rightness in the aftermath of this filtration will come to light disentangled from emotional/subjective elements and from one another. From this, follow two issues. The first one is that processes of the rationalisation of lifeworlds are presumed to be both an enabling condition and an outcome of the procedural legitimation of law (or rather, this model presumes the increase of processes of rationalisation of this kind), and second, that if the ethical-political discourse was related to epistemic parameters, then the question of individual/collective identity would be subjected to right/true answers, which, I hope, was not intended by Courtois (that one comes to the other and says whom the other should be or really is), and I am convinced that this was not intended by Habermas (compare Jürgen Habermas, Between Facts and Norms, op. cit., Chapter IV: 4.2.2, 4.2.3). 171 Jürgen Habermas, Between Facts and Norms, op. cit., p. 160. 172 Ibidem, p. 161. 173 Steven Levine, “Truth and Moral Validity: On Habermas’ Domesticated Pragmatism”, op. cit., p. 248.

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certain sense, seconded. The normative understanding of inclusiveness must prevail if particular conceptions of self-understanding are not imposed on others and if the critical-hermeneutic filtering of ethical-political discourses is supposed to proceed, that is, the discourses are to be de-contextualised. As a result of this decontextualising filtering, the participants, on one hand, ‘are licensed to return to an action-framework where justified beliefs are transformed into behavioral certainties’174, and, on the other hand, they acknowledge that their normative solutions of evaluative disagreements are always ‘existentially provintional’175, because they remain embedded in the here and now of discourse and of the available arguments because, to reiterate, normative validity is ‘justification-immanent’. Therefore, what is certain is that there is an open structure of inclusiveness that determines the moral justifications. Furthermore, if this is so, then the law, which should be in accordance with the basic moral insights, must be set in an open-ended process of public procedural legitimation. The normative understanding of the term intersubjectivity that does justice to the requirement of inclusiveness entails consequential horizontal as well as vertical processes. ‘Thus, there is a greater scope for reflexivity, which entails that the polity is open to challenge, re-interpretation, and amendment. A reflexive polity is not only open to deliberative challenge, it is also a forum for critical self-examination on who we are, who we should be, who we are thought to be, and who we think we are.’176 The claim for such a reflexive polity follows the diligent insight into the idea of a normative future-oriented project that entails the renegotiation of the past and thus a reflexive identity-construction. The self-reflexive polity is characterised in normative terms that render it open, too, for a critical examination at each level—legal-political, institutional and horizontal—that is, at the level of social relationships. Hence, it may be deemed normatively self-constructing. In other words, to describe or measure phenomena intersubjectively, we must first have a normative unifying picture177 of what they should be like. For ‘intersubjectivity’ indicates inclusiveness, that is, involving as many people

174 175 176 177

Ibidem, p. 247. Ibidem, p. 252. John Erik Fossum, “Nationalism, Patriotism and Diversity…”, op. cit., p. 268. Exactly, this idea of a ‘unifying picture’ seems to reflect the Dworkinian idea of integrity applied in the first line to the interpretation and in the second line to the political community.

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(here, citizens178) as possible in a cooperative, defining the situation in which we all find ourselves. Then, this normative unifying picture refers to enabling the conditions of the process of this cooperative defining of the situation. In the context of practical philosophy, ‘enabling conditions’ turn out to be necessary rights that enable people (citizens) to join this special process of reflective (discursive) cooperation. That is the reason why I agree with Patchen Markell, that ‘constitutional patriotism is not a kind of affectively charged identification with a set of universal principles; instead, in keeping with the risks and dangers that come to inhabit the reproduction of all sorts identity (even in the postconventional situation), constitutional patriotism is a habit or practice that refuses or resists the very identification on which citizens depend’179. I agree with Markell for at least three reasons. First, discursive cooperation is, due to its premises, a critical, and for this very reason transformative, attempt. Second, Habermas’s claim concerning reaching a consensus in public debates is applicable to normative universalisable claims, but not to strongly evaluative claims that underpin the concept of identity (be it collective or individualistic)180. Third, in the case of a consensus responding to normative questions, its justification-immanent structure always exceeds the ‘here and now’ of those who have reached a consensus, and that means that the structure is intrinsically open. Further, this openness enables the transcendence of the validity claim on which the universalizability of the normative claim is founded. Therefore, it does not bring about any kind of ‘devotion to the country’, but instead of it, it brings about reflective reinterpretations of the past that occurs in the open-ended process, reinterpretations of the past that, together with the normative project, form a structural basis for the reflexive construction of the current identities in order to make the requirement for a horizontal inclusiveness come true, so the latter would refer not to an ideal speech situation181 but to reflexive and critical transformations of the actual social practice.

178 Compare Pablo De Greiff, “Habermas on Nationalism and Cosmopolitanism”, op. cit., p. 433: ‘The core of Habermas’s (…) defence of cosmopolitanism, then, lies in the worry that the nation state is not a reliable guarantor of human rights’. 179 Patchen Markell, “Making Affect Safe for Democracy?”, op. cit., p. 54. 180 Stéphane Courtois, “Habermas’s Epistemic Conception of Democracy. Some Reactions to McCarthy’s Objections”, op. cit., pp. 847–850. 181 Compare Jürgen Habermas, “Reply to Symposium Participants, Benjamin N. Cardozo School of Law”, transl. William Rehg, in: Michael Rosenfeld, Andrew Arato (eds.), Habermas on Law and Democracy. Critical Exchanges, University of California Press, Berkeley, Los Angeles, London, 1998, p. 418.

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CHAPTER III The Ethical Fibre of Constitutional Patriotism and Horizontal Constitutionalisation I. Questioning Values in Habermas The previous chapter advocated a deontological approach to constitutional interpretations. Crucially, the latter were captured in terms of learning, generating transformative processes which raise claims to capture a polity as a reflexive entity which ‘is not only open to deliberative challenge’, but is ‘also a forum for critical self-examination on who we are, who we should be, who we are thought to be, and who we think we are’1. In other words, it is the selfconstitutionalisation of a polity comprehended in legal terms as the processes that entail constitution-making (in the sense of evolutionary constitution-making); on the normative approach, it is a deontological—and, interestingly, that is the reason why it is a processual and even transformative—approach to constitutional interpretations. The latter was evinced to be inextricably linked to the processes of reflective identity-building of a polity that filter the concept of self-understanding by the prism of the concept of self-determination. Tentatively, if the presumption that the addressees of the law must always be able to understand themselves also as the authors of the law stands, then the said filtering should be boosted and proceed most of all in an informal public, wherein the citizens’ opinions are thematically organised, confronted, debated and so forth, and, due to the procedural paradigm of law in question, they promote institutionalised forms of communication, deliberatively elaborated and transformed in order to express the citizens’ will. Thus, pertinent to these processes of constituting a self-reflexive polity are reflexive institutions that enhance or stymie the bottom-up reflexive filtering of the collective self-understanding, while these parameters depend to a certain degree on whether—and how much—these institutions do justice to the discursive-democratic credentials of the procedural paradigm of law. 1

John Erik Fossum, Nationalism, Patriotism and Diversity—Conceptualizing the National Dimension in Neil MacCormick’s Post-sovereign Constellation, in: Augustín José Menéndez, John Erik Fossum (eds.), Law and Democracy in Neil MacCormick’s Legal and Political Theory. The Post-Sovereign Constellation, Springer, Law and Philosophy Library, Volume 93, Dordrecht, 2011, p. 268.

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Given the importance of the bottom-up processes of filtering the self-understanding, this chapter shall investigate the kind of discourse that will stimulate these processes and, foremost, Habermas’s procedural paradigm of law that is centred on the concept of the public sphere, and how values are understood, because this plays a crucial role in this case. Therefore, in the next chapter, the reflective institutions as the heart of the public sphere shall be questioned in order to present the whole theory in action. In the context of the provided investigations into the concept of self-constitutionalisation and the related idea of constitutional patriotism, which introduces a certain shift in the concept of self-understanding conceived of as focussing on self-determination and thus that which is thought to deliver strong reasons for citizens’ engagement in the ongoing practice of justifying basic rights as universalisable normative claims, Samantha Besson addresses an important difficulty with regard to the question of values in Habermas’s reflections. She writes that ‘Such procedures [presented in The Theory of a Communicative Action] were, however, clearly tailored to deal with conflicts of interests and did not take into account the fact that people who disagree in value commitments and judgements that are rooted in cultural and ethical differences are often unwilling to treat values like interests and bargain or compromise on them.’2 That statement seems to pull down the grey clouds over the viability of the idea of the communicative reaching of an understanding, as it highlights the source of (possible) grave obstacles to be overcome during the processes of, in particular, the public reaching an agreement, namely, values and strong evaluative assessments. Additionally, the quibble about values and interests seems serious, as Habermas himself writes that ‘in practical discourses only those interests “count” for the outcomes that are presented as intersubjectively recognized values and hence are candidates for inclusion in the semantic content of valid norms’3. In his later writings, however, he changes the formula and states that ‘a norm is valid when the foreseeable consequences and side effects of its general observance for the interests and value-orientations of each individual could be jointly accepted by all concerned without coercion’4. But does this change in the formulation of the

2 3 4

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Samantha Besson, The Morality of Conflict. Reasonable Disagreement and the Law, Hart Publishing, Oxford, Portland, Oregon, 2005, p. 34. Jürgen Habermas, The Theory of Communicative Action, Volume I, Reason and the Rationalization of Society, trans. by Thomas McCarthy, Beacon Press, Boston, 1984, p. 81. Jürgen Habermas, The Inclusion of the Other. Studies in Political Theory, (ed.) Ciaran Cronin, Pablo De Greiff, Polity, Cambridge, 2002, p. 43.

principle of universalisation change in a certain way the sense of the theory of discourse with regard to value orientations? From the first abovementioned quotation, it arguably follows that a certain condition of the generalizability of interests, under which they pretend to be values, appears in Habermas, and it seems unclear whether he also takes into account other kinds of disagreement besides those stemming from conflicts of interest; however, if he does not consider other kinds of disagreement, one may ask what kind of significance (if any) he ascribes to such disagreements in the context of the discursive search for an agreement. Indeed, the German philosopher most often invokes the interests of all affected (by the norm candidate in question) when he formulates the principium of universalisation (U), including the subsequent books in which he develops a theory of discourse ethics as an argumentative ‘superstructure’ of communicative actions. Apparently, the groundwork that he prepares in The Theory of Communicative Action comes now into question—but is it so? As the passage above suggests, the interests themselves may be presented as values (however, this is the opposite of Besson’s presentation of the issue), if and only if (a) they are ‘shared by other members of a community in similar situations’5, thus, when they are ‘intersubjectively recognised’, (b) they are ‘stripped of [their] intrinsic relation to a first person perspective’6, and (c) in this way, they must be prepared to pass a test of value-generalisation7, (d) and finally, when they meet the said requirements, these interests receive an epistemic status of arguments8 while justifying the norm in question. Importantly, an interpretation directed at the transformation of (any kind) of values into interests is not permitted in this line of consideration, for values affect the identity of a person, and thus, such a reduction of values into interests would distort the content of the identities themselves, which Habermas explicitly acknowledges 9. However, a question that arises at this point is why—for what kinds of reasons would it not be a sound interpretation? The answer to this question should shed light on the problem of the discourse concerning self-understanding. Deeper insight into the idea of the generalisation of the interests ‘of each is to be viewed as a legitimate and reasonable orientation establishing the universality of

5 Jürgen Habermas, The Theory of Communicative Action, op. cit., pp. 81–82. 6 Ibidem. 7 Ibidem. 8 Ibidem. 9 Jürgen Habermas, The Inclusion of the Other, op. cit., p. 98.

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norm’10, as Seyla Benhabib states in Critique, Norm and Utopia. She formulates three possible readings of ‘the general interests’ as underpinnings of the said universality of norm. The first one is the ‘minimal formulation’ for which ‘not taking interest in each other’s interests’11 is characteristic. The second is the ‘maximal formulation’ for which taking into account ‘an actual social situation’12 is decisive, but only under the condition that there are no conflicts of interest. Finally, her third proposed reading is the ‘critical formulation’ that takes heed of a ‘test-procedure’13 which she finds characteristic of the Habermasian considerations since his Legitimation Crisis. In her view, this third reading of ‘general interests’ may also indicate two further options. The first one is the discovery of the ‘true’ and the same needs, which implies, in fact, the discovery of a presupposed harmony of interests14, yet it does not sound either attractive or convincing, especially when one bears in mind that the idea under scrutiny serves as a backdrop for Habermas’s critical theory15. Thus, the second reading of ‘general interests’, achieved by passing the ‘test procedure’, is not only much more philosophically interesting; it also seems to be better tailored for the theory of communicative actions and discourse ethics. Notably, it brings about a ‘“moral-transformative” moment of practical discourse’16 as a distinctive feature of this theory. What matters here is that the abovementioned ‘generalisation of values’ cannot be explicated either as an aggregation of interests or as a simple generalisation which ignores what is peculiar and distinctive for individuals; crucially, it is definitely oriented at communicative transformations of interests. One must notice, then, that significant transformations of interests are possible only if the transformations of values precede them, or if they go hand in hand with the

10 Seyla Benhabib, Critique, Norm and Utopia. A Study of the Formulation of Critical Theory, Columbia University Press, New York, 1986, p. 310; she refers here to possible considerations at the level of discourse ethics and not solely communicative actions, but I evoke her analysis in order to shape the direction of my own considerations. 11 Ibidem, p. 311. 12 Ibidem. 13 Ibidem, p. 312. 14 Ibidem. 15 On the critical theory heritage of Habermas, including, especially, the element of the transformative-emancipatory drive of consciousness within societal relationships, David M. Rasmussen writes brilliantly, “Critical Theory and Philosophy”, in: David M. Rasmussen (ed.), Handbook of Critical Theory, Blackwell Publishers, Oxford, Cambridge, Massachusetts, 1996. 16 Seyla Benhabib, Critique, Norm and Utopia, op. cit., p. 313.

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former17. Therefore, in this lies the first hint for the subsequent analyses—namely, the response to the question concerning the extent to which and under what conditions the transformations of values are presumed in The Theory of Communicative Action. It is especially relevant when we take for granted that in his subsequent books, Habermas develops this argumentative strategy. Moreover, his thesis is that the transformations of interests reflect only the previous or simultaneous transformations of values on which they depend. Unsurprisingly, this is a thesis formulated in the Weberian vein. In my view, a simplification of the Habermasian understanding of the term in question, made by Besson, is not justified when we focus the research particularly on the Theory of Communicative Action, which forms the initial theoretical background for the further formulation of the principles of discourse ethics. My thesis is that the process of clarifying the differences between norms and values in Habermasian thought is neither made in one stroke nor in one book. Additionally, it takes the road of diffusing the understanding of the traditional notion of—basically, cultural—values, on the one hand, into three kinds of action: teleological (to the truth), dramaturgical (to truthfulness and beauty) and normative action (to rightness)18. On the other hand, it takes the approach of

17 Interestingly, empirical data concerning European integration show that ‘material benefits, thus, do not seem to drive European Identity’ (Thomas Risse, A Community of Europeans? Transnational Identities and Public Spheres, Cornell University Press, Ithaca, London, 2010, p. 46), which fits the constructivist thesis that ‘who I am explains to a large extent what I want’ (ibidem, p. 20), not the reverse. In addition, one should remember that in reality, there are diverse kinds of values. 18 There are two interesting matters to note. First, Seyla Benhabib rightly states that in this way, ‘communicative action has a threefold world-reference. These frameworks of reference, named, respectively, “world”, “society”, and “self”, are the “pragmatic presuppositions” of our speech acts’, Seyla Benhabib, Critique, Norm and Utopia, op. cit., p. 240. What is important for the analyses in this chapter is that the concept of (an objective) world undergoes transformations with regard to the interests which are pursued within the world and their pragmatic problem-solving; the concept of society, as I affirm in the text, appears to be always under a collective (discursive) construction; and, finally, the concept of the self indicates a narrative-interpretative unfolding of the self-understanding that, as in the classical German philosophy on which Habermas draws extensively from the very beginning of his scientific activity, always also presumes the other. Second, even a cursory glimpse at the criteria used in the above classification of actions is very instructive, as an analogy with the criteria of human higher capacities made by Immanuel Kant at the end of Introduction in The Critique of the Power of Judgement becomes obvious. In that regard, of course, from

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making a clear distinction between values and morals as well as legal norms. The previous concept of values—for which the Weberian understanding is the most important point of reference in the Habermasian research dedicated to processes of ‘enhancements of value’ (Wertseigerungen)—has simultaneously been translated into three crucial spheres of interest, of the ‘partiality of desires and feelings’19 as well as of those subordinated to normative rightness. It triggered a long way of reconceptualising the direction of the processes of occidental value rationalisations, in comparison to Max Weber’s depiction that, interestingly enough, launched a specific incorporation of the post-metaphysical shift made by Immanuel Kant in his practical philosophy into considerations regarding the legitimation of positive law. In that regard, it may be said that Habermas radicalised the Weberian concept of ‘socialization through motive formation’20 as the main theme of processes of rationalising lifeworlds, in fact bringing to light the necessary moral underpinnings of positive law, unlike Weber, who was, on this point, more sociologically than philosophically oriented. Indeed, the last problem seems to plague Habermas till now.

2. Values and Interests Let us turn to The Theory of Communicative Action, Volume 1, and, perhaps paradoxically, embark on investigations into a dramaturgical action. It can be reconstructed, in short, as follows: it is ‘the system of his own intentions, thoughts, attitudes, desires, feelings, and the like’21. Since ‘desires and feelings are two aspects of partiality rooted in needs’22, the said system is connected with (a) ‘the

19 20 21 22

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the specific philosophical standpoint, the interpretation of occidental rationalisation announced by Weber and later on rethought by Habermas, then, must introduce the strong and influential generation of the processes of separation and institutionalisation of such cultural spheres that fit the proclaimed higher capacities of humans. It is very insightful, and already, we may anticipate where the public use of reason operates and when the power of judgement does its job—and the latter we now focus on. On the Weberian burden of the Habermasian investigations, see Denis Vitale, “Between Deliberative and Participatory Democracy. A Contribution on Habermas”, Philosophy and Social Criticism, Vol. 32, No. 6, 2006 (pp. 739–766), here pp. 739–744. Jürgen Habermas, The Theory of Communicative Action, op. cit., p. 92. Seyla Benhabib, Critique, Norm and Utopia, op. cit., p. 238. Jürgen Habermas, The Theory of Communicative Action, op. cit., p. 86. Ibidem, p. 92; emphasis added by KMC.

active striving for goods’23 on the basis of (b) ‘the affective perception of situations’24. In this context, it may be stated that the ‘participants form a visible public for each other’25, and ‘bringing something of his subjectivity to appearance’ happens as a ‘performance’26. If, as Benhabib claims, ‘the communicative model of action does justice to the experience of human plurality (…) [because] in acting and speaking we show who we are and our difference from others’27, then, it does justice best in the case of dramaturgical actions. The plurality is, nevertheless, addressed to the one who performs as well as the onlookers. Thus, this human plurality calls for the unifying element, that is, for the structure of the sense within which it would gain intersubjective meaning. The two sides of the communicative action are expected to respond to the performance and these responses shall be able to suit one another, under the terms of the communicative model of action, in order to intersubjectively establish meaning of the experienced human plurality. Hence, from this, it follows that the plurality, in fact, puts in motion a specific dynamic of communicative understanding that inevitably must also take into account the partiality of the communicative insights expressed by the participants in a communicative action. At the end of these provisional analyses, Habermas admits—and I find this important for the further steps of this scrutiny—that ‘the concept of dramaturgical action is less clearly developed in social-science literature than are those of teleological and normatively guided action’28. At this very moment, the groundwork for comparative analyses is to be laid. In what follows, I will argue that although Habermas, in his clarifications of normative actions in Theory of Communicative Action, uses words indicating values, yet he positions the crux of the concept of values elsewhere, namely, in the realm of dramaturgical actions which do justice to the plurality of human existence and the partiality of human feelings. While describing the model of normatively regulated actions, Habermas states that ‘the values embodied in [existing norms] represent the standards according to which (…) needs are interpreted and developed (ausgebildet) through learning processes into needs dispositions’29. With regard to this apparently obvious

23 Ibidem. 24 Ibidem. 25 Ibidem, p. 90. 26 Ibidem. 27 Seyla Benhabib, Critique, Norm and Utopia, op. cit., p. 244. 28 Jürgen Habermas, The Theory of Communicative Action, op. cit., p. 90. 29 Ibidem, p. 89.

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embodiment of values in the normative structures is that the norms themselves gain action-motivating force. In addition to pronouncing the cognitive aspect of what one ought or ought not to do, due to the values they embody, they also stand for the motive for searching (that is, the motive for actively striving) for the previously stated goods. Accordingly, it appears that the standard interpretations of needs: (a) as representing sets of values, (b) but also necessarily expressing ‘the partiality of desires and feelings’30, (c) stand ‘at the level of language’ as evaluations, in this sense that they make ‘evaluative expressions (…) available’31. Hence, the very sense of evaluative expressions occurs to be best understood in terms of making the evaluative interpretations of needs available and, thus, these standard interpretations of needs coordinate or direct the active striving for goods. In so doing, the latter reveals itself to be dependent on the evaluative expressions. Nonetheless, it all renders dramaturgical actions ‘in a certain way parasitic; they rest on a structure of goal-oriented actions’32, but the reverse is not true. We can ‘objectively’ make sure which ones are positively evaluated by taking a look at what one does in a lifeworld with regard to the consistency of his/her actions. Furthermore, a spontaneous manifestation of one’s partiality of feelings or desires does not render the action ‘irrational’, because one always takes into account the others, the onlookers, as addressees of his/her performance, so one also monitors (or controls) what is going on in the action-framework of one’s lifeworld, and only in this sense does a dramaturgical action act as a parasite on a teleological one, as the former coordinates to a certain extent the action-taking. At the end of the day, the dramaturgical action proves to be a complex one, because in the structure of the interaction between the one performing his/her evaluative expressions and the onlookers, there is in-built a moment of his/her self-reflection33, or one may say ‘self-monitoring’ of the way the performance proceeds and makes available evaluative expressions. Additionally, in some prior passages, Habermas also states that ‘value judgements (…) serve to make predilections understandable. This component of justification (Rechtfertigung) is the bridge between the subjectivity of experience and that intersubjective transparency that experience gains in being truthfully expressed and, on this basis, attributed to an actor by onlookers’34. Therefore, in

30 31 32 33 34

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Ibidem, p. 92; emphasis added by KMC. Ibidem; emphasis added by KMC. Ibidem, p. 90. Ibidem, p. 91. Ibidem, p. 92.

addition to the pure ‘self-monitoring’ of this kind of communicative action comes into play the specific component of the justification of the ‘partiality of desires and feelings’ in the interpretations of needs (needs dispositions). This justification, interestingly, is within the aforementioned intersubjective transparency presuming (i) the truthfulness of expressions and simultaneously (ii) a reference to standard interpretations of needs that make value judgements understandable. As a result, the conjunction of truthfulness and the reference to standard interpretations of needs functions as the said intersubjective justification of predilections. The justification of such evaluative claims rests basically on the degree to which it becomes transparent that evaluations recall the needs shared with others. This transparency, as a kind of justification that is provided in the lifeworlds, means that the cognitive aspects are interwoven with a partiality of feelings and desires that weave together and constitute strong motivations for actions. This formulation, in turn, triggers further questions about the meaning and structure of the said justification. Of course, one may indicate here a Hegelian line of consideration as a background, which exceeds the issue in question35. I refer here to the tension between what is individual and what is particular (and therefore also partial), but also, to some extent, generalizable. The moment when generalizability becomes possible is embedded in the form, allowing the approval of what is individual, the form meant as a condition under which the individual is mediated in the mutual recognition of any other (whether individual or particular). Indeed, in this spirit, Habermas continues the investigation: ‘Evaluative expressions or standards of value (Wertstandards) have justificatory force (rechtfertigende Kraft) when they characterize a need in such a way that addresses can, in the framework of a common cultural heritage (gemeinsamen kulturellen Überlieferung), recognize in these interpretations their own needs’36. Not surprisingly, then, it appears that a reference to ‘a common cultural heritage’ makes a justificatory impact in such a way that the latter functions as a medium— a common, and thus shared, and to a certain degree an intersubjective, world—in accordance with which evaluative expressions become recognised as expressions of shared needs. A common ‘cultural heritage’ is this, ‘wherein’ standard

35 There is no surprise, then, because some highlight that Habermasian thinking is of the Hegelian left provenience; compare Manuel Jiménez Redondo, El Pensamiento Ético de J. Habermas, Colección HUMANITAS, Ediciones Episteme, Valencia, 2000; Kenneth Baynes, “Freedom and Recognition in Hegel and Habermas”, Philosophy & Social Criticism, Vol. 28, No. 1, 2002 (pp. 1–17). 36 Jürgen Habermas, The Theory of Communicative Action, op. cit., p. 92.

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interpretations of needs—to which individual expressions of desires and feelings always also refer (beside their claim to truthfulness)—are elaborated, if these values are supposed to work as justifications of predilections. The point of reference for these elaborations is everyday conduct, where individuals control or monitor their own performances and the reactions of others, through which their interactions gain the justification; since the legitimacy of the tradition is derived from ‘everyday historicity’37. Individual expressions, then, call for an intersubjective transparency that is foremost embedded in evoking ‘a common cultural heritage’, whereby they become understandable, namely, in the conducting of everyday affairs. Standard interpretations of needs are formulated on the grounds of ‘a common cultural heritage’, and from this perspective, they are to be comprehended as interpretations of values. In other words, the meanings of individual needs become generalised, so they form particular but shared interpretations, and thanks to this, they become ‘intersubjectively recognizable’. This is precisely what values are: generalised interpretations of needs, intersubjectively recognizable, because they are transparent in their being a weave of cognitions and partiality that strongly motivates everyday action. The phrase ‘gemeinsamen kulturellen Überlieferung’, however, may be translated into English as ‘a common cultural heritage’ as well as ‘a common cultural tradition’—and that makes a significant difference. Ulrich Kockel rightly distinguishes ‘tradition as a process involving cultural actors [that] always includes the possibility of modifying what is being handed down between generations in order to adapt it to the changed historical context. Only if it becomes fixated as heritage does tradition cease to imply process and change’38. First, when one takes into account that, with reference to Überlieferung needs are shaped as dispositions to have certain needs and also that, in order to gain certain standard interpretations and meanings we are to understand Überlieferung as a learning process, then, undoubtedly, the term Überlieferung should be understood as tradition. The latter delivers structures and resources of meanings as well as actions, whereby one’s needs, in learning processes based on the procedures of the generalisation, may gain, on the one hand, the form of standard interpretations (cultural interpretations), called values, or, on the other hand, those needs may be evaluated with regard to these standard interpretations. 37 Ulrich Kockel, “Heritage versus Tradition”, in: Marion Demossier (ed.), The European Puzzle. The Political Structuring of Cultural Identities at a Time of Transitions, Berghahn Books, New York, Oxford, 2007, p. 97. 38 Ibidem.

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Second, the concept of tradition, presented by Kockel in the opposition to the concept of heritage, stresses the active attitude on the part of actors engaged in a certain tradition, and in doing so, it better brings to light the learning processes that Habermas mentions. That implies that tradition delivers not only standard interpretations of needs (values) but also some interpretative tool kit to be put in motion by individuals and groups (as next generations) in order to enable them to (re)interpret as well as hold onto what may be understood as shared and common to them, despite the changing circumstances delivering diverse possibilities for reaching the goods they would strive for with regard to the developed needs. This issue is of considerable importance, because it sheds light on which sense values indicate the structure of preferences that account, in turn, for the mode in which an action oriented at those values may operate, namely, qua teleological actions, yet not the other way round. The understanding of common and shared needs determines the possible preferences according to the targets and means with which, in always more or less changeable circumstances, the needs may be satisfied. This explains why interests, under a specific generalizability condition, may be presented as values, but, quite the contrary, values cannot be reduced to interests. Moreover, the active striving for goods, on the grounds of the justified affective perception of a situation, forms a motivational framework. The point is that affects and cognitive aspects, when they come together, are strongly motivating. Third, but no less important, the possibility of modifying tradition is revealed as an inherent part of the tradition itself, because the latter is inherently oriented towards the articulation of what is shared and common in the changing world. This issue was mentioned in Chapter II, and I shall come back to it in the following considerations when discussing the more recent Habermasian understanding of the term authenticity as underpinned by a reference to value interpretations. Now, some difficulties which these analyses have uncovered must be faced. For example, the precise meaning of the following phrase is unclear: ‘In a similar way, feelings of, say, obligation, shame, or guilt stand in internal relations to the social world. But in general feelings and desires can only be expressed as something subjective. They cannot be expressed otherwise, cannot enter into relation with the external world, whether the objective or the social. For this reason the expression of desires and feelings is measured only against the reflexive relation of the speaker to his inner world’39. 39 Jürgen Habermas, The Theory of Communicative Action, op. cit., p. 92; emphasis already in the quoted text.

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The passage reveals that the depiction of dramaturgical actions has been too narrow for philosophical investigations—because it has been tailored just for sociological analyses—and it exceeds the Habermasian considerations, making them contradict one another to a certain extent. This is so, because the possibility of bridging the gap between subjective experiences and their intersubjective transparency is grounded, in fact, in Janus-faced evaluative expressions, with their claims to both the truthfulness and the justified understandability in front of others. In order to respond to the riddle of being Janus-faced, I propose the following interpretation. Values, as standard interpretations of (the meaning) of needs, are being worked out on the grounds of the common cultural tradition during learning processes, whereby the usage of the available structures and resources of meanings and of actions are shaped (just socialised, let us say). Therefore, values, as standard interpretations of needs, are acknowledged and elaborated within a double relationship (interrelations) that founds the aforementioned intersubjective transparency. Namely, (a) a self-reflection upon auto-expressions concerning needs, because those expressions presume truthfulness (‘auto-transparency’) resulting from the selfunderstanding of what needs one has; and proceeding hand in hand with the former (b) processes of justifying those needs, notably, through formulations of evaluative judgments, in such a way that they may be recognised as expressions of the same needs as those that others have; however, it becomes apparent that these others are supposed to belong to the same cultural tradition. In the second case, a kind of reference to standard interpretations of needs that make value judgements understandable emerges; that is, they make the value judgements that one formulates transparent to the other with regard to others’ expressions. Furthermore, the cultural tradition, importantly, indicates not only the same structures but also resources of meanings and actions, thanks to which interactions are but forms of the said learning and thus reflective processes resulting in (re)shaping dispositions to have certain needs. The reflective processes unfold as ongoing; they are fulfilled in everydayness and affect individuals as a circle of those who share the same tradition. However, what is quite relevant here is that they also affect how the standard interpretations of the needs, namely, values, are to be interpreted. Therefore, the crucial conclusion is that, in those standard interpretations of values, a specific, inherent dynamic is inscribed. Nevertheless, the dynamic remains stymied by the inextricable partiality of values that stems from their peculiar understandability, notably, transparency: the self-transparency of a performer of evaluative expressions and the transparency for the onlookers—in short, the transparency mediated in shared interpretations of needs that actually strongly motivate actions.

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The problem I see here is that the above reflective aspect of dramaturgical actions, in fact, slips away from Habermas in The Theory of Communicative Action40. He does not put into question all the tensions presumed by this unavoidably ‘reflective’ structure of ‘dramaturgical’ actions, as if they were pertaining only—to paraphrase the classical philosophy—to the domain of aesthetic41. He does not ‘thematize adequately the community of needs and solidarity, for, following George Herbert Mead, he assumes the standpoint of the “generalized other”, of rights and entitlements, to represent the moral point of view par excellence’42. Therefore, Habermas introduces such an understanding of dramaturgical actions and correlates them with a subjective world that must undergo conceptual transformations that exceed their initial meaning and leads him to the concept of authenticity, referring both to individuals and groups. On the other hand, one may admit that he analyses the problem, but from a perspective focused on the normative (moral) structures as stemming from taking the attitude of the other (following Mead) in Communication and the Evolution of Society43. Thus, in The Theory of Communicative Action, there are some ‘cuts’ in his thinking, and the task of defining the relationship between values and norms remains unfinished. This issue seems to be a source of many of the tensions which people are currently experiencing, or rather, tensions which are specific to modern multicultural societies. The processes of rationalizing identities—or structures of identity—that are inscribed in the reflective burden of ‘dramaturgical actions’ trigger questions on the tensions among, on the one hand, auto-expressions correlated to feelings, and thus referring to self-understanding (that takes into account one’s own diverse needs), and on the other hand, the need for an intersubjective justification of the said needs, that is, the need for a complex recognition on the part of others who also participate in the ongoing collective processes of reflective 40 Fortunately, they are not hidden behind the veil of scientific ignorance, because are they put into a bright light in Axel Honneth’s theory of recognition. 41 Compare in this context Jeffrey C. Alexander, The Civil Sphere, Oxford University Press, Oxford, New York, 2006, supra note 19 to chapter 5, pp. 581–582. Compare also William Outhwaite, Habermas. A Critical Introduction, Polity Press, Cambridge 1994, pp. 40–42. 42 Seyla Benhabib, Critique, Norm and Utopia, op. cit., p. 339. See the critique of this line of founding moral claims in Iris Marion Young, “Asymmetrical Reciprocity: On Moral Respect, Wonder, and Enlarged Thought”, Constellations, Vol. 3, No. 3, 1997 (pp. 340–363). 43 Jürgen Habermas, Communication and the Evolution of Society, trans. Thomas McCarthy, Beacon Press, Boston, 1979.

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(re)interpreting of shared values, and, it may be said, in the construction of a collective self-understanding. The questions raised here are as follows: How much must one strive for justifying his/her needs? How much, of what is justified on the grounds of a certain tradition, remains or may remain in conflict with the needs or desires one has and acknowledges? To what extent, regarding what is justified and recognised as needs for the sake of the common tradition, may also be deemed justified by an individual or by the social group, in the sense of being truthfully strived for? What happens when individuals or groups of individuals, with regard to their experiences, are not motivated to strive for the justified, because they have learned the dispositions to have different needs and thus look for what is unjustified with regard to a certain tradition? It shall be deemed their own business, as Benhabib regrets, that this very statement stems from Habermas’s considerations in The Theory of Communicative Action.

3. Values and Norms The second, yet complementary, issue at stake is the relationship as well as the difference between the concepts of values and norms. Habermas states that ‘the concept of normatively regulated action does (…) refer to members of a social group who orient their action to common values’44. However, it raises the question of ‘whether the existing norms themselves embody values that, in a particular problem situation, give expression to generalizable interests of those affected and thus deserve the assent of those to whom they are addressed’45. If so, then one may ask whether values are equivalent to norms. The specificity of norms, as it was stated, is conceivable due to their claim ‘to validity for a circle of addressees’46, namely, of the normative rightness which is denied to evaluative judgements, with their claim to truthfulness and intersubjective transparency. Therefore, in order to disentangle the problem of the specificity of normative claims, it must be stated that with regard to the concept of normatively regulated actions, what matters is their ‘normative rightness’ guaranteeing that they are ‘recognized as legitimate’47. Thus, the currency of norms stems from the recognition of their specific validity;

44 Habermas, The Theory of Communicative Action, op. cit., p. 85. 45 Ibidem, p. 89. 46 Ibidem, p. 88. 47 Ibidem, p. 89.

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otherwise, one may speak but of the currency of social norms at a conventional level. The latter means that norms are justified qua the intersubjective transparency of the emergent claims for a circle of their addressees, the intersubjective transparency which is characteristic of values that remain, at this conventional level of understanding norms, as decisive underpinnings of the recognition of norms. However, when norms are justified in such a way that they ‘themselves embody values’, they are justified (they are intersubjectively understandable in the sense of their transparency), nonetheless, not qua reasons. Therefore, the notion of the recognition demanded for norms undergoes here a certain transformation with regard to the specific legitimacy of norms: ‘when we use the concept of normatively regulated action we have to describe the actors as if they consider the legitimacy of action norms to be basically open to objective appraisal, no matter in which metaphysical, religious, or theoretical framework. (…) Acting in a norm-conformative attitude requires an intuitive understanding of normative validity; and this concept presupposes some possibility of their normative grounding’48. The legitimacy of norms is supposed to be distinct from the values justification that makes evaluative judgements intersubjectively transparent in the circle of addressees sharing a common tradition. However, the expressions the ‘intuitive understanding of normative validity’ and ‘the normative grounding’ seem to be highly problematic here. How can one handle these apparently contradictory statements? The phrase ‘as if’ gives the first hint at a hypothetical attitude. The second hint is given by the phrase ‘objective appraisal’ which means an assessment of norms by reasons. Taken together, they form a robust premise that in order to justify a normative judgement, one must take a hypothetical attitude which calls for reasons49. In my view, that turns the normative judgement into a counterfactual one (and levels the concept of a normative judgement at the post-conventional level of a common norms understanding). As a result, normative judgements formulated at the post-conventional level no longer embody values and instead become counterfactual judgements. 48 Ibidem, p. 420, supra note 25. 49 That means that it presupposes a discursive grounding, and the hitch is that Habermas seems to develop discourse theory under the pressure of the normative insufficiency of the communicative action alone; the discourse theory, then, is thought to handle the requirement of the more reflective attitude-taking that arises on the grounds of communicative action, that is, in order to cope with the problem of possibly reaching a normatively grounded consensus at the post-conventional level of the societal development.

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This turn, in my opinion, serves at least two purposes. The first is to ‘distinguish the factual [descriptive] from the normative [prescriptive] elements of an action situation’50. The second, however, when taking a hypothetical stance, discloses an unconditional claim to validity as an intrinsic feature of any categorical claim51. With regard to this hypothetical/unconditional attitude, the lifeworlds’ perspective cracks, so ‘morality arises (…) in the face of disintegrating communal forms of life and the pluralization of worldviews’52, when norms, which are formulated at the post-conventional level, transcend the worldviews. Thus, the normative judgement appears to be a normative yardstick suitable for assessing the situation and performing an action in the face of the pluralisation of worldviews and competing interpretations of tradition(s). However, ‘in the absence of metaphysically validated normative principles, moral-universal justification can be located only in a process of reciprocal rational argumentation that is in principle unfinished’53, which implies that the said norms must be comprehended as constantly undergoing a process of reciprocal (re)construction oriented at the procedural safeguarding of the impartial (uttering the equal terms of) inclusion of all affected as equal. Therefore, the said norms are by no means metaphysical nor other ‘ontologised’ constructs; they simply pertain to a specific domain of social actions—moral ones54. Crucially, since the component of an intuitive understanding of normative validity indicates that the latter severs the relationship to the ‘common cultural tradition’ and the transparency of normative judgements disperses as the ‘circle of addressees’ 50 Ibidem, p. 90; the rest of the sentence is ‘that is [to distinguish] conditions and means of values’, which seems to conflate values and norms and muddy the argumentation. That is why I leave it here, in accordance with my previous statement that Habermas seems to adopt this thinking in his text, but fortunately, he finally comes to clear, relevant conclusions on this issue. 51 Rainer Forst, Contexts of Justice. Political Philosophy Beyond Liberalism and Communitarianism, trans. John M. M. Farell, University of California Press, Berkeley, Los Angeles, London, 2002, p. 194. 52 Steven Levine, “Truth and Moral Validity: On Habermas’ Domesticated Pragmatism”, Constellations, Vol. 18, No. 2, 2011 (pp. 244–259), here p. 250. 53 Rainer Forst, Contexts of Justice, op. cit., p. 176. 54 Therefore, it is important to notice that the above construction of norms that transcend the horizon of everydayness does not postulate ‘a transcendental source’ of moral legitimacy; quite the contrary, it postulates the real cooperative and—stemming from the delivered and elaborated arguments—constructing the said norms; compare: Carlo Invernizzi Accetti, “Can Democracy Emancipate Itself From Political Theology? Habermas and Lefort on the Permanence of the Theologico-Political”, Constellations, Vol. 17, No. 2, 2010 (pp. 254–270), especially p. 260.

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potentially increases to all human beings, and then, ‘though moral problems arise in a contingent manner, they do not permit contingent responses’55. Although moral problems arise in particular forms of life, they do not permit responses that would be valid solely in those particular lifeworlds. From this point onwards, the affirmed ‘intuitive understanding’ shifts the structure of the justification of the said norms to a considerable degree. Norms, under conventional terms, are characterised by the strong visibility of an embodiment of values. In this sense, they gain ‘objectivity’ in terms of their transparency to the circle of addressees—everyone sees and understands what kinds of values, as shared interpretations of needs, are recalled in the said norms—and there is no need to call for the reasons, as the source of their legitimation. Or, put differently, any possible ‘argument’ to be put in favour of the norms functions rather as a demonstration of what is shared and common in them to the circle of addressees—embedded in a certain life form56. 55 Rainer Forst, Contexts of Justice, op. cit., p. 198. However, in Forst’s view, norms do not transcend the context; they arise from it (ibidem. 171; in fact, Forst is not very consistent on this issue), and that is the point with which I do not agree with him fully. 56 Compare Steven Levine, “Truth and Moral Validity: On Habermas’ Domesticated Pragmatism”, op. cit., pp. 249–252, who elucidates the ‘indexing’ of the ethical knowledge of certain life forms. This indexing is quite important, as it mounts a basic argument against the sensibility of an attempt made by Stéphane Courtis, in his brilliant text, to express the ethical discourse as a kind of epistemic-justificatory discourse, Stéphane Courtois, “Habermas’s Epistemic Conception of Democracy. Some Reactions to McCarthy’s Objections”, Philosophy & Social Criticism, Vol. 30, No. 7, 2004 (pp. 842–866). Hence, I do not agree with the latter when he claims that ‘the significance and reach of Habermas’s cognitivist position in the realm of his democratic theory lack clarity’ (ibidem, p. 843) on this point; quite the contrary, I argue that ethical discourse does not pertain to the domain of epistemic kinds of discourse, and that is not any accidental part of critical theory, because Habermas is quite aware and thus clear that the reason cannot possess itself, and, therefore, it is unfolded through the critical approach to what is outside of itself. As Manuel Jiménez Redondo aptly argues with regard to contemporary, post-metaphysical reason, ‘contemporary consciousness is always the consciousness of an absence as well, as awareness of what is missing: God understood as enigma of the world as the enigma of the factum of reason, reasons as having itself as receiving itself from beyond itself’, Manuel Jiménez Redondo, “Religion in the Public Sphere. Remarks on the Habermas-Ratzinger Debates”, in: Tadeusz Buksiński (ed.), Religions in the Public Spheres, Peter Lang Edition, Frankfurt am Main, 2011, p. 91. This means that the contemporary concepts of the good (including God as a possible point of reference for such concepts) comprehended as that which is ‘beyond-the-reason’ (beyond the epistemic terms and categories) trigger the dialectic of the self-establishing reason as it does so in the opposition; without

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In that regard, the intuitive understanding of the normative validity pronounces the processes of the rationalisation of values, that is, processes of value ‘enhancement’57 and processes of diminishing the transparency of values. Finally, ‘the abstract value standard of normative rightness’ emerges. The more reflexively the norm is formulated, the more general it becomes. When the norm is so general that it becomes abstract, it claims universal validity. Such a norm is constructed because its direct references to specific values disappear58. Moreover, such a such an opposition, the reason could not establish itself. Therefore, if all discourses were epistemic—in the public spheres—what would the role/significance of the epistemic discourses be? What would that mean, if anything? As Alexander underscores in his (more) sociological investigation (Jeffrey C. Alexander, The Civil Sphere, op. cit.), ‘the term “civil society” embraces also a network of understandings creating structures of feelings’ (ibidem, p. 56) and for these reason, ‘the binary discourse occurs at three levels: motives, relations, and institutions’ (ibidem, pp. 56–57). The reason for this is that the ‘democratic discourse’ and its kinds of narratives build not only structures of meanings but also of feelings. Their work is binary in the sense that ‘the discourse of repression is inherent in the discourse of liberty’ (ibidem, p. 67; see his analyses: ibidem, pp. 56–67). Thus, in the claim that there is a turn in the concept of self-understanding conceived of as self-determination coming to the fore, it comes about by stating that the reason, in the contemporary, post-metaphysical times, comes to voice in the sense of self-explicating and thus ceasing this oppressive element. I think that against this background, Habermas states that due to the discourse theory applied to a democratic constitutional polity, the discourse ‘leaves the value conflict unsettled’, Jürgen Habermas, “Reply to Symposium Participants, Benjamin N. Cardozo School of Law”, in: Michael Rosenfeld, Andrew Arato (eds.), Habermas on Law and Democracy. Critical Exchanges, University of California Press, Berkeley, Los Angeles, London,1998, p. 393. Compare also Andrzej Szahaj, Krytyka. Emancypacja. Dialog. Jürgen Habermas w poszukiwaniu nowego paradygmatu teorii krytycznej, Wydawnictwo Kolegium Otryckiego, Warszawa, 1990, pp. 108–110; Andrzej Maciej Kaniowski, Filozofia społeczna Jürgena Habermasa, Wydawnictwo Kolegium Otryckiego, Warszawa, 1990, p. 331. 57 Jürgen Habermas, The Theory of Communicative Action, op. cit., Chapter II, section 1. “Occidental Rationalism”. 58 This argumentative strategy reveals why Habermas develops the concept of communicative action into a more reflexive attitude towards problem-solving, namely, to discourse ethics which is reflectively parasitic on communicative actions. As Piet Strydom neatly differentiates, communicative action is ‘an interactionist or dialogical intersubjectivism’, and discourse is ‘a discourse intersubjectivist position’ (Piet Strydom, “Intersubjectivity—Interactionist or Discursive? Reflections on Habermas’ Critique of Brandon”, Philosophy & Social Criticism, Vol. 32, No. 2, 2006 (pp. 155–172), here p. 161). In this view, in brief, for the former, the relation ‘I’—‘Thou’

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norm unfolds itself as a moral one because both (i) taking the perspective of the other (Mead) that aims at (ii) meeting the requirement of the impartiality of normative judgements (Kant) are supposed to be contained in the procedure of norm formulation. From this, it follows that ‘moral rightness, or justice, becomes in effect a metanorm governing the discourse by which first-order norms and judgements are generated’59. Thus, a moral norm, as a specific counterfactual construction, indicates the conditions under which the impartiality of judgements, and, regulated this way, actions, may be met. The moral norm becomes a counterfactual construction because its transparency, that is, values embodiment in norms, disappears, so an addressee of the norm is no longer understood qua his/her life form but as one who is equal to every other with respect to needs and needs disposition. This idea of a transformation of the justification of norms, from the conventional to the post-conventional level, applies to an individual perspective, where the respect for, and validity of, norms is based on the abstractness that is sufficient to embrace different arguments which are underpinned by so generalised formulations of values or interests that their transparency gets dispersed. On the other hand, its possibility arises in the aftermath of social processes of occidental value rationalisation. However, if this is so, and if my interpretation is correct, and the normative world is to be understood in constructivist terms discerned as above, then values appear to be norms’ Versinnlichungen in time and space. The application of norms to societal and historical structures and resources of meaning thus requires that we take into account (in reverse, to processes of norms legitimation) the most broadly shared values. The application of norms, thus, is directed at making abstract norms understandable in different contexts, so they can perform common actions as well as gain stronger motivational power. However, since the counterfactual norms are meant to solve the (potential) conflicts of values in pluralistic societies, considering these terms equivalent is wrong. In fact, the application of those norms presumes the process of values rationalisation (enhancement), that is, of values ‘filtering’ aiming at their mutual reconciliation, at least to the extent

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is definitional, and for the latter, definitional also takes into account the position of the third person (an ‘observer’ of speech acts), pronouncing the reflexively-distanced attitude towards the undertaken communicative action and possibility to put in question the very assumption of the communicative action itself. This implies a more precise formulation of arguments. Since discourse ethics sets the normative framework for public spheres, in the next chapter, I will come back to the problem of norms, including above all moral ones, when I discuss discourse ethics directly. Steven Levine, “Truth and Moral Validity: On Habermas’ Domesticated Pragmatism”, op. cit., p. 250.

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that the reasonable disagreement would be sustained, thereby providing a more reflective (general) understanding of competing values as the upshot. Accordingly, not only processes of norms legitimation may be deemed transformative learning processes; the processes of applying the norms take on this characteristic as well. That also accounts for why a moral discourse may deliver legitimating arguments for the formulation of legal laws and still never be conflated with the latter. The norms of the positive law, at the post-conventional level, must be formulated with respect to their addressees as lawgivers themselves, who, importantly, formulate normative claims in real legitimation discourses that stem from particular historical contexts. Whereas ‘moral norms refer to action toward persons “in general” in a context of common humanity—toward one and, at the same time, all individual persons’60 and, thus, their formulations are characterised by the distance-taking to all forms of life, the legal norms instead, must stay in compliance with the moral argumentation, and become enacted; crucially, they must also be an outgrowth from real legitimising discourses involving all affected by them as lawgivers who take distance to their particular, affected forms of life. In other words, the system of legal norms must meet both the moral argumentation and self-understanding of the addressees of the positive law. In fact, the difference between values, as standard, generalised interpretations of needs, and norms, as abstract and counterfactual formulations of generalised values and interests, is fully brought to light in discourse ethics61.

4. Value Enhancement and the Concept of Authenticity Standard interpretations of needs are therefore grounded in procedures of generalisation. The more generalisation occurs, the more the circle of addressees, to whom the transparency of an evaluative judgement is oriented, will increase, because ‘value generalization means, again, a reflexive growth of patterns of meaning actions. These become diffuse as opposed to specific, abstract as opposed to concrete, and are increasingly subject to argumentative procedures of their acceptance’62. However, in modern pluralistic societies, the increase in the 60 Rainer Forst, Contexts of Justice, op. cit., p. 156. 61 I come back to the problem of norms in Chapter IV, when I direct my investigations at the broader array of Habermasian writings. 62 Seyla Benhabib, Critique, Norm and Utopia, op. cit., p. 247.

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number of addressees unavoidably leads to a break with the transparency of the evaluative judgements as expressions of shared needs (values). Their competing standard interpretations come into play. Processes of ‘value enhancement’ are incremental. Analyses of the latter shed a bright light on the Habermasian distinction between values and norms. They offer Habermas robust reasons for arguing that Weber still understands social phenomena in substantial terms, and thus Habermas redirects his considerations towards more formal features in the reconstruction of Weber’s value rationalisation processes. Habermas states the following: The rationality of values underlying action preferences is not measured by their material component but by formal properties, that is, by whether they are so fundamental that they can ground a mode of life based on principles (prinzipiengeleitete Leibensweise). Only values that can be abstracted and generalized (generalisiert) into principles, internalized largely as formal (formale) principles, and applied procedurally (procedural), have so intensive a power to orient action that can cut across various particular situations and, in the extreme cases, systematically penetrate all spheres of life and bring an entire biography, or even the history of social groups, under a unifying idea63.

Habermas points out the necessity of such a generalisation of values that results in: (a) forming principles (b) that transcend ‘a common cultural tradition’—that is, they transcend standard interpretations of needs—of a certain group of addressees, and therefore, principles also transcend a diversity of competing needs that each individual may be faced with. Hence, (c) such principles are formal and thus abstract interpretations of different values, and for this very reason, such principles can unify (that is the very sense of the term ‘penetrating’, used in the quotation) ‘all spheres of life (…) or even the history of social groups, under a unifying idea’. This means now that when principles are conceived of formal interpretations of diverse values, they can exclusively unify different interpretations of needs (or rather, values as standard interpretations of needs) through common and general procedures. The abovementioned generalisation that Habermas uncovers in Weber’s writings, however, receives in his considerations a burden of abstraction that launches a form (a procedure) of distance-taking from a common cultural tradition that, in turn, also diminishes the transparency of shared experiences and finally results in the lower motivational component of the common action norms when compared with values. The abstraction thought here introduces processes of ‘decentralization 63 Jürgen Habermas, The Theory of Communicative Action, op. cit., p. 171.

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of world-perspectives that is impossible without a simultaneous change in deepseated, moral-practical structures of consciousness’64. From this, it follows that the ‘objective’ arguments in favour of the norms under construction must also be formulated in a specific procedure. Although arguments from values or generalised interests are anchored in lifeworlds, they must exceed the narrow particularity of the circle of addressees, for whom they may be so transparent that they create no need for reason-giving in favour of them (or against them)65. The next crucial step that Habermas takes aims at a demonstration that all possible generalisations and abstractions take precisely this direction that justifies his postulate of three kinds of worlds and the actions related to them, namely, teleological, normatively oriented and dramaturgical. In that regard, he notices that ‘Weber distinguishes process in the technical rationality of means from “value enhancement” [Wertsteigerung]. As soon as science, morality, and art have been differentiated into autonomous spheres of values, each under one universal validity claim—truth, normative rightness, authenticity or beauty— objective advances, improvements, enhancements become possible in a sense specific to each’66. Processes of the cultural rationalisation of values bears fruit, eventually, in the differentiation of cultural spheres of values indicating cultural systems of actions specific to each of them. That is the reason why Habermas underlines that these three more abstract ideas indicating universal validity claims must be differentiated from materially understood values, and in this respect, Weber is not always consistent67 (presuming that he intends to be). It has previously been said that principles are formal interpretations, and as such, they can exclusively unify different interpretations of needs (values) through common and general procedures, through value-abstractions. This still leaves open the issue of coming to an agreement on these procedures. More generally, it should be explained now, how the validity of procedures—which are no longer standard interpretations of needs built over long passages of time in the medium of a common cultural tradition—is to be reached. In other words, the problem is that the validity of procedures is supposed to have a specific feature that would replace the binding force of the standard understandings of needs elaborated long ago in the medium of common world perspectives and experiences. In more complex

64 Ibidem, p. 176. 65 Compare Andrzej Szahaj, Krytyka. Emancypacja. Dialog, op. cit., p. 133. 66 Jürgen Habermas, The Theory of Communicative Action, op. cit., pp. 176–177; emphasis added by KMC. 67 Ibidem, p. 183.

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societies, it is possible to obtain this binding, integrative force, but in the medium of an agreement reached via a communicative justification of validity claims, deems Habermas68. He states that this is precisely where the problem of the justification of norms comes to the fore, in post-traditional societies. In other words, the traditional mode of justifying norms that is based on their embodiment of generalised values (as standard interpretations of needs), due to the common cultural tradition, cannot be sustained any longer. Thus, the problem of the justification of norms is moved towards the legitimation of the legal system, wherein the processes of ‘value enhancement’ are expressed. The legal system as a whole must deal with the processes of differentiating values, of enhancing them, and their conflicts or competition should be consensually dissolved by each free and equal to any other69, that is, by individuals who may always also obey the law for the recognition of its normative validity claims70; otherwise—paradoxically—their needs would become deprived of the (intersubjective recognition of their) meaning. That issue is very important because it makes Habermas acknowledge that the problem of legal law legitimation should always also be related to the problem of socialisation in democratic societies, which forms, once again, the Hegelian heritage in Habermasian thought. On the other hand, Habermas is focused on the explication of three autonomous spheres of values, ‘each under one universal validity claim’, as he argues. But in this division, where are the values that used to underpin the social norms? As Steven Levine incisively points out, for Habermas, ‘the only way to maintain moral universality [on the post-conventional level] is to rigorously separate the moral from the ethical’71. Reiterating the Habermasian statement, we notice that ‘as soon as science, morality, and art have been differentiated into autonomous spheres of values, each under one universal validity claim—truth, normative rightness, authenticity or beauty—objective advances, improvements, enhancements become

68 Jürgen Habermas, The Inclusion of the Other, op. cit., p. 255: ‘Normative agreement [aiming at rightness] has to shift from a consensus pregiven by tradition to a consensus that is achieved communicatively, that is, agreed upon [vereinbart]. In the limit case, what is to count as a legitimate order is formally agreed upon and positively enacted; with this, rationally regulated action [Gesellschafthandeln] takes the place of the conventional action’. 69 Jürgen Habermas, The Theory of Communicative Action, op. cit., pp. 260–261. 70 Ibidem, p. 261. 71 Steven Levine, “Truth and Moral Validity: On Habermas’ Domesticated Pragmatism”, op. cit., p. 254.

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possible in a sense specific to each’72. The question is, where may one uncover the concept of the good and the good life? In which autonomous sphere of values may the good be uncovered, and under which universal validity claim does the ethical, which is inextricably linked to particular values and thus is opposed to the moral, operate? Does the question of values, different from morals, not evoke aesthetic theories? Does it follow that the problem of the ethical pertains to a certain conception of aesthetic73? In a certain way, yes, but the term aesthetics changes its meaning. Arguably, this question proves very consequential with regard to the issue of the ethical component of the self-constitutionalisation of the democratic polity. My claim is that Habermas reworks his understanding of values in the direction reconstructed by me in the previous analyses of passages from The Theory of Communicative Action concerning the concept of dramaturgical action. A deeper reflection on the concept of dramaturgical actions pushes him towards overcoming the narrow and purely sociological understanding of it, fixed to the mere (statement of) expressions of the partiality of feelings and desires, and eventually resulting in the concept of authenticity, that is, a concept additionally underpinned by the terms self-understanding and collective understanding, as elaborated above. Namely, the split between the moral (universal) and the ethical (particular), due to the processes of value enhancement, bear fruit in the concept of authenticity as correlated to the ideas of the good and the good life which do justice—in a certain way—to the reflective components and structures of dramaturgical actions. Here, the phrase ‘in a certain way reflective’ means that the components are able to come into play with the reflective, and thus critical, process of the self-explication of the (communicative) reason74. Habermas points out that the ethical life is, in a certain way, dependent on the procedure of generalisability, because ‘the first person perspective does not imply an egocentric restriction to sheer preferences [as reducible to interests, under certain conditions]; rather, it points to an individual life history that is always already embedded in intersubjectively shared traditions and forms of life’75. The sheer reduction of the ethical life to mere preferences would not be justified, because

72 Jürgen Habermas, The Theory of Communicative Action, op. cit., pp. 176–177; emphasis added by KMC. 73 Compare Andrzej Szahaj, Krytyka. Emancypacja. Dialog, op. cit., p. 138. 74 This does not mean that the ethical loses its pre-epistemic status; it simply means that it gains an epistemic-explicatory drive when confronted critically with the moral. 75 Jürgen Habermas, The Inclusion of the Other, op. cit., p. 26.

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preferences grow from the interpretations of needs that one develops in learning processes, that is, in communicative actions wherein the standard interpretations of those needs (values) undergo transformations that are reflected in everyday life conduct and in evaluative judgements which are transparent to those who share the particular form of life. From this, it follows that an individual’s self-understanding, founded upon these communicative actions, reflectively interplays with others’ self-understandings. In fact, any self-understanding proceeds in a mutual communicative exchange of evaluative judgements that express the partiality of feelings and desires. However, these expressions of partiality, constitutive for a model of dramaturgical action, are necessarily bounded by the paramount need for their intersubjective recognition as the utterances of shared and common needs. The initially formulated concept of dramaturgical action was too narrow to embrace its inner reflective potential to reshape either an individual biography or even the frameworks of lifeworlds, that is, a collective self-understanding. However, realising this reflective potential, Habermas states that ‘the attractiveness of the values in light of which I understand myself and my life cannot be explained within the limits of the world of subjective experiences to which I have privileged access. From the ethical point of view, my preferences and goals are no longer simply given but are themselves open to discussion; since they depend on my self-understanding, they can undergo reasoned change through reflection on what has intrinsic value for us within the horizon of our shared social world. (…) The authenticity of a life-project can be understood as a higher-level validity claim analogous with the claim to truthfulness of expressive speech acts’76. The ethical life and its correlation with the concept of authenticity turn out to be based upon dramaturgical actions77. The concept of authenticity, in my view, emerges through rethinking the partiality of feelings and desires as well as the need for intersubjective recognition in terms of making them transparent (shared and common) to others in one’s everyday life conduct. It embraces, to some extent, the inner world, however, always in the relationship (tension) to the intersubjective world of standard interpretations of socialised dispositions to have needs. Tensions, therefore, prove to be in-built in this concept, but, as Habermas believes, they may be overcome in a discussion. Interestingly, this view presupposes the increase of self-reflection capabilities and thus the increase of rationalisation processes 76 Ibidem, pp. 26–27. 77 Eva Erman also presents this view, albeit with no detailed argumentative support, “Reconciling Communicative Action and Recognition. Thickening the ‘Inter’ of Intersubjectivity”, Philosophy & Social Criticism, Vol. 32, No. 3, 2006 (pp. 377–400), here p. 382.

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in lifeworlds that entail the appearance of a new kind of ethos, namely, a discursive ethos that makes transparent the claim to give reasons for the statement one makes78. The concept of authenticity that stems from the concept of auto-expression overrides the latter in this sense, that the former may be related to the complexity and totality of life, one’s biography or even to the history of a certain group, however, indicating a ‘conscious and coherent’79 conduct of lives. Additionally, as Habermas underscores, the truthfulness of speech acts is ‘corroborated’ by the coherency of the undertaken actions. What is of paramount significance here is, nevertheless, the relationship to others and the search for recognition on the part of others. The concept of authenticity establishes a correlation between a person and others and captures persons in terms of a need for the recognition of one’s experiences, interpretations of them, of the whole life in light of what is shared. The intersubjective understandability that becomes manifested in these forms of recognition and in strong shared evaluative expressions emerges, at any rate, as a form of interpretative particularism. While this interpretative particularism is, to a considerable extent, embedded in a certain contingency, because its binding force arises from the same ‘here and now’ of a shared time and place80, it also delivers strong motivational support for action-taking. This ‘ethical intersubjectivity’ is thus only conditionally valid and, in many cases, cannot furnish devices to solve the said tensions between what is individual and what is particular, or between particular forms of life, for it does not seek a more general (vide: abstract) form of self-reflectivity as the latter would lose the relationship to structures of feelings and thus the strongly motivational component. Therefore, ‘from Habermas’ perspective, individuals in modern pluralist society cannot pursue their own particular conceptions of the good life (ethical discourse) without establishing an agreement on those norms of conduct (moral norms) that ought to govern their self-chosen actions. These norms of conduct—or sittlich relation—replace the taken-for-granted “ethical life” found in ancient Greece and medieval Europe’81.

78 Jürgen Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg, The MIT Press, Cambridge, Massachusetts, 1999, p. 98. 79 Jürgen Habermas, The Inclusion of the Other, op. cit. p. 27. 80 Steven Levine, “Truth and Moral Validity: On Habermas’ Domesticated Pragmatism”, op. cit., p. 249. 81 Gulshan Khan, “Politics and Morality in Habermas’ Discourse Ethics”, Philosophy & Social Criticism, Vol. 38, No. 2, 2012 (pp. 149–168), here p. 159.

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It is a positive law, and more precisely, it appropriately shapes processes and procedures in order to support formulations of reasons that would handle legitimations of the said law, wherein the enhancement of values proceeds.

5. The Political Turn Towards Culture The more profound reflection on values, made in the way of examining the structures and meanings of dramaturgical action, uncovered the reflectivity of everyday life conduct as the source of individual as well as collective self-understanding. The plurality of human existence that draws extensively on the partiality of desires and feelings which constitute an irreducible part of each self (be it singular or plural) and remains in need of intersubjective justification, gives rise to an inner dynamic presumed in the concept of authenticity. This dynamic is launched by cooperative interpretations of what would be regarded as common and shared and, at the same time, would do justice to what is peculiar, what is not shared and thus is ‘other’. It seems that these critical investigations and insights lead Habermas to the affirmation of the self-reflexivity of modern Western cultures. This affirmation of the self-reflexivity of modern Western cultures is not surprising, when one notes, following Benhabib, that ‘the thesis of The Theory of Communicative Action [is that]: rationalization processes are paradoxical because they undermine the very rationality of the lifeworld which first made the societal rationalization possible’82. This means that when the potential for rationalisation is being unfolded in communicative actions and structures then processes of rationalisation, including the very sphere of the lifeworld without exception, become emancipated. The rationality of the lifeworld, due to the inner logic of communicative actions, reflexively transforms itself and, as a result, generates ‘a reflexive culture’ whose force relies precisely on the ability to increase reflexive transformations sustained by the free choice of their members concerning what to hold onto and what to continue, what to ‘critically examine’83 and to what extent to learn also from other traditions. As different lifeworlds undergo processes of rationalisation and generate a reflexive culture, so the latter appears nonfundamentalist, and gains the said force to make further and deeper transformations, and through this critical shift, it asserts its significance, exceeding the temporal

82 Seyla Benhabib, Critique, Norm and Utopia, op. cit., p. 236. 83 Jürgen Habermas, The Inclusion of the Other, op. cit., p. 222.

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contingency84. All of this is concerned with, as Patrizia Nanz states, horizontal constitutionalisation85 that I would like hereafter to put in motion against the backdrop of legal constitutionalisation. This essentially contributes to the full endorsement of the concept of the reflexive polity which must include not only its legal-institutional ongoing reshaping but must also embrace compatible and complementary self-reflexive processes that run in the lifeworlds. It may be said that the processual character of culture, even since The Structural Transformations of the Public Spheres86, carries with it today a disclosure of ‘the flexible nature of identity’87 as one of the main topics in social sciences. The Habermasian procedural depiction of cultures undergoing processes of rationalisation may be deemed—undoubtedly, among other authors’ works—theoretical foundations of the constructivist paradigm in social research, or at least, one of the most influential proposals in that dimension88. As some claim, it is ‘normatively more adequate to work with a notion of culture which is more open, allowing for changes and transformations in cultures as well as overlapping cultures and complex identities, taking into account the fact that claims of cultures are always also politically contested and contestable—a notion which is, therefore, de-essentialized and in a wider degree able to explain heterogeneous cultural practices and social reality’89. However, the imprint of the self-reflexivity of cultures, on the other hand,

84 Ibidem, pp. 222–224. 85 Patrizia Nanz, Europolis. Constitutional Patriotism beyond the Nation-State, Manchester University Press, Manchester, New York, 2006. 86 Jürgen Habermas, The Structural Transformation of the Public Sphere. An Inquiry into a Category of Bourgeois Society, trans. Thomas Burger, Frederick Lawrence, The MIT Press, Cambridge, 1999. 87 Jan Ifversen, “Transnational Europe”, in: Per Mouritsen, Knud Erik Jørgensen (eds.), Constituting Communities. Political Solutions to Cultural Conflict, Palgrave Macmillan, Houndmills, Basingstoke, New York, 2008, p. 124. 88 One of the most influential ‘triggers’ of such an approach is discussed at length by Benedict Anderson, Imagined Communities: Reflections on the Origins and Spread of Nationalism, Verso, 1991. On the current understanding of constructivism in the social sciences, see Thomas Risse, A Community of Europeans? Transnational Identities and Public Spheres, Cornell University Press, Ithaca, London, 2010, pp. 20–36. On the relation between constructivists and essentialists, see also Marion Demossier, “The Political Structuring of Cultural Identities”, in: Marion Demossier (ed.), The European Puzzle. The Political Structuring of Cultural Identities at a Time of Transitions, Berghahn Books, New York, Oxford, 2007, pp. 59–62. 89 Beate Roessler, “Authenticity of Cultures and of Persons”, Philosophy & Social Criticism, Vol. 38, No. 4–5, 2012 (pp. 445–455), here 448.

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for some thinkers, paradoxically challenges the significance of the ‘authenticity’ of both groups and individuals. Nevertheless, more essentialized approaches to culture and identity do not do justice, in my view, to the abovementioned processual dynamic of the said plurality and partiality. Moreover, when they additionally emphasise language or ethnic commonalities, they conceal forms of oppression and domination and misrecognise diverse groups that are ‘in-between’ or just in processes of emerging and struggling for recognition90. Shedding a critical light on these diverse forms of oppression, interestingly, on the reflexive processes, brings out the processual character of recognition which is to be gained at the individual, social and legal-institutional levels91. This critical light also addresses the concept of a nation as a specific cultural construct that undergoes processes of strong transformations oriented at a more universal re-shaping of its social and political structures that lead to its reflexive self-ensuring, that is, on normative universal fundaments92 that exceed the concept of a nation itself. Thus, as Jan Ifversen states, ‘in recent years, scholars have gone to great lengths to “de-nationalize” European identity, using two strategies: engage in discussions on the [a] general meaning of identity, and [b] transfer conceptualizations of European identity from the cultural to the political field’93. The groundwork for the [a] problem was laid in the previous subsection and will now be completed, at the same time preparing insights for the [b] problem, since the contestation of this conceptual shift that examines the concept of identity with a political template rather than a cultural one, delivers serious arguments to be reconsidered. Both issues, however, address the concept of democratic ethos as underlying communicative and, in particular, discursive actions94; thus, the 90 Rita Dhamoon, “Shifting from ‘Culture’ to ‘the Cultural’: Critical Theorizing of Identity/ Difference Politics”, Constellations, Vol. 13, No. 3, 2006 (pp. 354–373), here pp. 356, 359, 369. 91 See Axel Honneth, The Struggle for Recognition. The Moral Grammar of Social Conflicts, trans. Joel Anderson, The MIT Press, Cambridge, Massachusetts, 1995. 92 Alain Touraine, “Many Cultures, One Citizenship”, Philosophy & Social Criticism, Vol. 37, No. 4, 2011 (pp. 393–399), here p. 397: ‘Each culture must defend everybody’s right to create, use and transmit a culture which is defined first of all by the defence of universal contents, reason and human rights. Only such universalistic arguments are efficient defenders of cultural diversity’. 93 Jan Ifversen, “Transnational Europe”, op. cit., p. 124; square brackets added by KMC. 94 Seyla Benhabib, Critique, Norm and Utopia, op. cit., p. 283; Richard J. Bernstein, “The Retrieval of Democratic Ethos”, in: Michael Rosenfeld, Andrew Arato (eds.), Habermas on Law and Democracy. Critical Exchanges, University of California Press, Berkeley, Los Angeles, London, 1998; Frank I. Michelman, “Family Quarrel”, in:

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elucidation of the two issues in question, at the same time, sheds light on the latter concept of democratic ethos.

[a] Discussing the General Meaning of Identity The first strategy, in brief, grows from the claim to a communicative or discursive freedom95. This approach acknowledges speech—and, following Martin Heidegger, language as its tool—as a possibility for gaining a synthesis that conditions an understanding of the world, which is conceived of as a project that advances at both the individual and cooperative levels simultaneously96. Thus, the world is not an accidental product of interpretational cooperative activity, although it is erected with contingently available spatial and temporal ‘bricks’, namely, with reference to the tradition delivering the structures and resources of meanings and also of actions. The existence of a human as a being-in-the-world develops whilst undertaking interpretative projects within which existence and co-existence are understood (therefore, interpretatively constructed). The communicative freedom signifies here the room for meanings as well as interpretative strategies, according to which the (co)project is shaped. Crucial for aptly capturing the said room for meanings is a communicative relation among interpreters, for whom saying at least ‘yes’ or ‘no’ is of fundamental significance97; furthermore, the achieved

Michael Rosenfeld, Andrew Arato (eds.), Habermas on Law and Democracy. Critical Exchanges, University of California Press, Berkeley, Los Angeles, London, 1998. 95 In this subsection, I refer to a discursive freedom taken in a thinner sense than a communicative freedom, where it indicates, among other requirements defining the concept, a reflective attitude towards communicative actions and presumes formulating arguments in favour of the claims one puts forward. However, in the next chapter, I shall provide more detailed analyses of discursive action, evoking the theory of discursive ethics. In addressing the problems of (reflexive) cultures, the two terms, communicative freedom and discursive freedom, are most often used interchangeably; therefore, I also use here the terms ‘communicative freedom’ and ‘deliberative freedom’ almost interchangeably and aim at shedding some light on the consequences of the proceeding processes of rationalising lifeworlds and on the reflexive cultures which emerge. 96 This is because Dasein and Mitsein are presupposed as co-original, at least in Sein und Zeit; Martin Heidegger, Sein und Zeit, Achtzente Auflage, Max Niemeyer Verlag, Tübingen, 2001. 97 Compare Klaus Günther, “Communicative Freedom, Communicative Power, and Jurisgenesis”, in: Michael Rosenfeld, Andrew Arato (eds.), Habermas on Law and Democracy. Critical Exchanges, University of California Press, Berkeley, Los

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understanding (agreement) appears always in the aftermath of an elucidation of cooperative interpretative projects that, from the discursive perspective, demand an exchange and a recognition of arguments. As the reached agreement, according to rational presumptions of communicative (or discursive) freedom98, filters through the massive contexts of the individual as well as collective unproblematic understandings of the world, it becomes inextricably intertwined with the power of judgement99 exercised in the ‘application of this understanding’ in everyday situations, in everyday interpersonal relations and in action coordination. An effect of the processual dynamic of the human plurality and of the partiality of desires and feelings that are in need of intersubjective justifications is that ‘our identity is not only something we have received; it is at the same time our own project. (…) It is up to us, however, to determine which traditions we want to perpetuate and which we want to discard. This corresponds to a process concept of collective identity’100. The collective identity, to reiterate, unfolds in the aftermath of the exercise of the power of judgement, which, in the cases concerning the collective identity, starts to function as the public power of judgement. A processual concept of identity opens the tradition up to the future, because, here, one may discover the tradition that is being ‘utilised’—in a positive, noninstrumental sense of the phrase—that is, it is utilised in order to open up the future to individuals, making the community more inclusive and capturing identities in terms of their ongoing (re)constitutions. It introduces an element of modern thinking that overcomes transcendent forms of the legitimation of the world and social or political actions101. Such a processual concept of identity defends (processes

98 99

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Angeles, London, 1998; Manuel Jiménez Redondo, “Der kategorische Imperative in Begriffen von ‘Sein und Zeit’”, in: Norbert Leśniewski, Ewa Nowak-Juchacz, Die Zeit Heideggers, Peter Lang Verlag, Frankfurt am Main, 2002, pp. 40–44. Seyla Benhabib, Critique, Norm and Utopia, op. cit., pp. 317–322. Chapter I contains Neil MacCormick’s view on that issue; compare what Robin Celikates states regarding the capacity of judgement, “From Critical Social Theory to a Social Theory of Critique: On the Critique of Ideology after the Pragmatic Turn”, in Constellations, Vol. 13, No. 1, 2006 (pp. 21–40). Jürgen Habermas, “Reply to Symposium Participants, Benjamin N. Cardozo School of Law”, in: Michael Rosenfeld, Andrew Arato (eds.), Habermas on Law and Democracy. Critical Exchanges, University of California Press, Berkeley, Los Angeles, London, 1998, p. 399. Compare Carlo Invernizzi Accetti, “Can Democracy Emancipate Itself From Political Theology? Habermas and Lefort on the Permanence of the Theologico-Political”, Constellations, Vol. 17, No. 2, 2010 (pp. 254–270), especially p. 255.

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of) identity formation against its subordination to ‘higher transcendent forces’ or its reification, both of which imply turning an individual into an object of history instead of conceiving of the individual as an active subject. The agency of each individual becomes entrenched as long as the individual’s future is open, and it may rationally (intend to) affect its shape. On this approach to the concept of identity, the communicative freedom is presumed, and it entails that without relations to others, neither can the project of self-understanding nor the self-determination proceed further. Processes of differentiation, as doing justice to the human plurality and partiality of feelings and desires, and processes of bringing to acknowledgement what is common, are seen as inextricably connected, as somewhat dialectical processes wherein the power of judgement and critical reflection are mutually complementary. To this approach, an assumption that communicative freedom is tightly interwoven with processes of rationalising lifeworlds is pertinent—from the one perspective its power depends on ‘the extent to which the rationality potentials built into communicative action and released in discourse penetrate lifeworld structures and set them aflow’102. From the other view, these rationality potentials built into communicative action may be comprehended only with reference to the communicative freedom comprehended as their, to paraphrase Kant, ratio essendi. This means that communication, in particular, its reflective form, that is, discourse increases the room for saying ‘yes’ or ‘no’, further enable argumentative transformations of interests, (re)interpreting needs and responding to what the good is; they also have an impact on the increasing abstraction of common action norms formulations which are in need of compliance with practical and thus also hypothetical universal principles103. Because the individual autonomy is founded on an understanding and recognition of the same autonomy of any other as free and equal; thus, a demand for an increase of an individual’s autonomy, which is launched by discourse, is correlated with a demand of the same increase of the autonomy of any other, implying that ‘each person be recognized as a moral person with a right to justification and that this right be discursively respected’104. Following Rainer Forst’s statement, one may see that the communicative freedom released in discourse lays down the fundaments of ‘the community of justification’

102 Jürgen Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg, The MIT Press, Cambridge, Massachusetts, 1999, p. 98. 103 Compare ibidem, p. 97. 104 Rainer Forst, Contexts of Justice, op. cit., p. 190.

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from which no one can be excluded105, which renders it an extremely inclusive community—of all human beings. This moral normative demand indeed ‘intersects’ with real communicative networks functioning in different lifeworlds and reflexively opens them up to possible arguments made by others. Hence, it may be stated that, in fact, others enter our world, in the sense that our interpretations become inevitably open to arguments formulated by others, who belong to diverse publics, because the counterfactual community of justification (of all human beings) operates as a normative framework for the diversity of publics. Accordingly, the more others’ arguments actually enter our interpretations of the world, so the more the latter respond to diverse arguments, and thus the more the said normative demand is met. Actually, argumentative openness enables each individual to act ‘on the basis of the best available reasons’106 and to search for such best available reasons and, thus, strengthen and entrench the exercise of his/ her communicative freedom. From the normative point of view, these processes of widening and deepening communicative structures, which make the best arguments available and that enable their intersubjective critical examination, constitute a necessary element of the protection of each individual’s autonomy in both dimensions: a private one, exercised in the lifeworlds, and a public one, where there emerges the cooperative doing justice to the basic rights which frame the same normative room for the exercise of communicative freedom on which they are, in fact, founded. Therefore, components of what is common may be (re)constituted only through the critical investigations underlying the specificity of the individual that must freely recognise the common project (that is, the (re)interpretations of the good as the kernel of the ethical) as always also his/her project and not as the one who oppresses him/her. Importantly, a critical reflection runs as an ongoing process of pronouncing an agreement on, and contestation of, what is common and shared, and what is individual, and, as such, also deserves recognition on equal terms. In order to enable this reflective movement and establishment of equal terms of recognition a specific turn must take place. Namely, the communicative freedom released in discourses turns the project of self-understanding into a normative undertaking of its interpretative foundations, but, in addition, for the sake of autonomous self-determination by all its participants107. In other words, that turn gives birth to a discursive ethos. 105 Ibidem, p. 190. 106 Christian F. Rostbøll, Deliberative Freedom. Deliberative Democracy and Critical Theory, State University of New York Press, Albany, 2008, p. 134. 107 Compare Jürgen Habermas, Between Facts and Norms, op. cit., pp. 97–98.

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Paradoxically, then, in the aftermath of the increase of the processes of rationalising lifeworlds, which is characteristic of pluralistic societies, the selfdetermination (either individual or collective) is uncovered as the crux of selfunderstanding108. Erik Oddvar Eriksen and John Erik Fossum seem to argue in 108 One may state, with regard to the proclaimed turn, that it precisely follows Seyla Benhabib’s charge of utopia in the Habermasian considerations conceived of as separating—that is, without any further reflection—the question of human happiness (Seyla Benhabib, Critique, Norm and Utopia, op. cit., pp. 322–336). Thus, according to the rationalist assumption of both the theory of communicative action and discourse theory, individuals are left alone without any critical tool kits when facing the problem of happiness, or rather, as Benhabib advocates, they are presumed to sooner or later find on their own the way to their ‘accomplished lives’. In this view, although Benhabib addresses an important philosophical question (consider, for example The Seventh Seal, directed by Ingmar Bergman), we must acknowledge that the reconciliation of something reasonable (not simply rational), which also satisfies one’s life, is one of the serious issues under debate since ancient times. Even in Aristotle, the term eudaimonia does not mean simply ‘happy life’ but rather ‘good life’ (Compare: William J. Prior, Virtue and Knowledge. An Introduction to Ancient Greek Ethics, Routledge, London, New York, 1991, pp. 148–155). Good life is the one reasonably conducted and thus delivering on this account satisfaction and a sense of personal accomplishment. This view emphasises the significance of education, that is, an affective-cognitive education when one learns to draw on satisfaction from the way s/he lives his/her own life. It does not come about here with regard to indoctrination, neither to feel satisfied despite whatever happens in someone’s life, nor to follow the beliefs of an external authority of any kind, whether it is publicly recognised or not, which would be a source of happiness, but about the idea that emotions and feelings are to be harmonised when they follow reason, which, of course, presumes autonomy. As autonomy exists only in acting, emotions and feelings spontaneously initiate actions; therefore, the reason cannot come into existence without them. In other words, reasonableness, contrary to rationality, always also takes into account the reasonableness of the other and his/her autonomy, and definitely is not devoid of either emotions or feelings, but is—or should be, from the normative point of view—strongly supported by the emotions that trigger each individual to perform a right action instead of living a purely intellectualised life. As the great Neil MacCormick wisely states, ‘Acting well and wisely means acting for good reasons, and these must fully allow our affective as well as our intellectual nature’; Neil MacCormick, Practical Reason in Law and Morality, Oxford University Press, New York, Oxford, 2008, p. 1. With that regard, two thousand years ago, Aristotle was considering the idea of the right anger, one feels when acknowledging an injustice that others experience, which does not allow one to indifferently stare at this injustice, from which follows that those ‘good reasons’ are the ones that bind together arguments for a certain action with affects strongly motivating action-taking. Furthermore, if we take a look at Immanuel Kant’s

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the same vein, when they state that ‘in modern societies, citizenship has taken a cognitive turn, which reflects the onus on basic equal rights’109. As a result, on the one hand, integration, understood as taking into account one another in the actions undertaken on the basis of cognitive aspects that imply an endorsement of the action rules in question110, is lifted at more abstract dimensions of cognition in both individual and social lives111. The concept of democratic ethos, which I advocate here, indicates the recognition of argumentative self-determination as a kernel of self-understanding, be it individual or collective. It pays heed to the spontaneous spread of communicative freedom released in discourses, the examination of which is seen as a source of integration among diverse groups and/or individuals as well as an impulse towards cultural mobilisation directed at the further discursive development of this freedom that entails its entrenchment in terms of legitimised common action norms. The Critique of the Power of Judgement, we see a similar argumentative strategy, as emotions and feelings are supposed to cooperate with the power of judgement, and one draws satisfaction from the fitness of the judgements made (in the twofold move: from an abstraction to what is individual, or reflexively, from an individual (in the sense of phenomena) to the concept). Nevertheless, one may still argue that due to this vision, ‘doing justice’ redirects the significance of happiness into drawing satisfaction from the ‘little things’ one does in everyday life, instead of stressing the incredibly strong emotions usually ascribed to the picture of happiness. Yes, it appears quite sound, though one important philosophical piece of wisdom still seems to slip away. Since Hanna Arendt uncovered the power of everyday cruelty and evil that turn into banality in Eichmann in Jerusalem: A Report on the Banality of Evil, perhaps it is time to address the question about the power of everyday doing justice and the nontrivial withstanding of the everydayness of our lives, instead of looking for romantic heroes pertaining undoubtedly to ‘elites’ (whatever one conjures up under this term) to which many dream to belong, despite the incessant critique of the same elites. 109 Erik Oddvar Eriksen, John Erik Fossum, “Conclusion: Legitimation through Deliberation”, in: Erik Oddvar Eriksen, John Erik Fossum (eds.), Democracy in the European Union. Integration through Deliberation?, Routledge, London, New York, 2002, p. 268. 110 Compare Seyla Benhabib, Critique, Norm and Utopia, op. cit., p. 231. 111 Jürgen Habermas, The Theory of Communicative Action, op. cit., p. 258: ‘At the stage of primitive law, there is as yet no concept of an objective norm; at the stage of traditional law, norms are taken as given, as conventions that are passed on; only at the stage of modern law can norms be regarded as free enactments and judged in the light of principles that are themselves viewed as hypothetical. The rationalization of law reflects the same series of stages of preconventional, conventional and postconventional basic concepts that developmental psychology has shown to obtain in ontogenesis’.

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Paradoxically, again, this very turn gives the lie to the Habermasian statement that under the terms of post-conventional legal law, individuals become ‘morally unburdened’ because this ‘modern law displaces normative expectations (…) onto the laws that secure the compatibility of liberties’112. Quite on the contrary, the acknowledgement of the connection between communicative freedom and the rationality potentials released in discourse reveals that the determination of what is the moral in the opposition to the ethical becomes a subject in which there is work taking place almost every day, at least, in pluralistic societies. The rationality potentials released in the discourse filter the massive contexts of, as Habermas states, ‘unproblematic understanding’—convictions that coordinate the pragmatic circle in lifeworlds—and therefore, individuals become discursively burdened, in the sense that their action coordination is now supposed to answer the rationality potentials that are incessantly revealed in the discourse. The communicative freedom achieved in discourses that evoke the formulation and exchange of more and more abstract arguments—which therefore may be rightly called, in more precise terms, discursive or deliberative freedom—focusses on the levels and spaces wherein free and thus autonomous self-determination may be launched, thrive and become entrenched. With regard to the said turn, which locates at the centre of the concept of self-understanding the very structure of self-determination, critical reflection (and the power of judgement) is set free in the sense that due to the idea of normatively undertaking the interpretative foundations of the project of self-understanding, everything may one day become an object of critical examination and undergo a free communicative (discursive) reinterpretation, (re)establishment, dominance and power (de)construction including, essentially, the very conditions under which the critical examination itself is provided113. People’s ‘incapacity to reflect on their own condition (…) is a reliable

112 Jürgen Habermas, Between Facts and Norms, op. cit., p. 83. 113 Christian F. Rostbøll, Deliberative Freedom, op. cit., p. 160; he stresses, in this context, the significance of the deliberative freedom in exposing ideologies that enslave people and render them immune to a discursive examination of convictions, beliefs, sources and predilections. Compare in this context Ewa Nowak, Georg Lind, “Mis-Educative Martial Law—The Fate of Free Discourse and the Moral Judgement Competence of Polish University Students from 1977 to 1983”, in: Bartosz Wojciechowski, Marek Zirk-Sadowski, Mariusz Golecki (eds.), Between Complexity of Law and Lack of Order. Philosophy of Law in the Era of Globalization, Wydawnictwo Adam Marszałek, Toruń-Beijing, 2009.

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sign of being subject to ideology’114; therefore, examining the conditions under which the reflection (revealed in discourses) moves forward seems especially important. Thus, the said turn works in two directions: it examines the formal-procedural conditions under which communicative (or discursive) freedom operates and, at the same time, emancipates from any forms of oppression that would stymie the free choice of elements (meanings, concepts, cultural resources, structures of references and so forth) with which one forms beliefs about his/her interests as well as his/her well-being (be it material, intellectual, symbolic or otherwise), or beliefs about his/her capabilities and social position (which refer to identifying what is out of actual reach for someone and why, though from the moral point of view, the claim to its availability seems well justified). The said turn also emancipates in the sense of liberating the choice of elements with which the self-understanding is built, including, for example, gender or sexual orientation, religion, ethnic and/or national ascriptions, or sets one free from ethnic or national colours, worldviews and social roles and enhances the refusal (and/or endorsement) to play certain (traditional) roles. Finally, it is strongly related to education; namely, it liberates the choice (and/or refusal) of possible factors that would affect identity formation115. It emerges here as processes of emancipation from constraints, as that which cannot be freely recognised by an individual as pertaining either to his/her individual project or to the collective one116. This takes place in processes of discursively 114 Robin Celikates, “From Critical Social Theory to a Social Theory of Critique…”, op. cit., p. 23. 115 Compare, for example, Nancy Fraser, “Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy”, in: Craig Calhoun (ed.), Habermas and the Public Sphere, The MIT Press, Cambridge, Massachusetts, London, 1992, pp. 99–142; Nancy Fraser, Axel Honneth, Redistribution or Recognition: A Political-Philosophical Exchange, Verso, 2003; Sorah Sorial, “Habermas, Feminism, and Law: Beyond Equality and Difference?”, Ratio Juris, Vol. 24, No. 1, March 2011 (pp. 25–48). Significantly, this discursive openness that anchors public spheres in lifeworlds also builds communicative structures for emancipation; however, the debate now concerns the conditions under which access to these communicative structures would be deemed equal for everyone, whether they indicate economic factors, certain structures of gaining recognition or capabilities, in fact. 116 Erik Oddvar Eriksen, Jarle Weigård, Understanding Habermas. Communicating Action and Deliberative Democracy, Continuum, New York, London, 2003, p. 426: ‘Hence, respect for difference, pluralism, human rights, vulnerable identities, is required. The basic structure of constitutional democracies, then, does not only expresses certain values or conceptions of the good society, but in addition a conception of a rights-based society’.

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(anew) reaching an agreement on issues previously having been brought to light in debates. Eventually, this turn opens all spheres of life to public debate in order to detect any forms of injustice and to liberate them from those forms through their deliberative resetting. Additionally, as a result, ‘deliberative practical rationality is normatively binding in virtue of its being the medium for the expression and elaboration of our basic substantive ideas of solidarity, equality and freedom’117. Conceptualisations of the democratic ethos—that (re)builds social integration and trust through bottom-up processes of horizontal constitutionalisation (in the sense of reflective, critical filtration of massive, unproblematic understandings characteristic of lifeworlds), namely, through the discursive (re)setting (qua putting more and more universal claims at the fore) diverse projects of self-understanding with regard to the said ideas of solidarity, equality and freedom expected to do justice to the plurality of human existence—of course, differ, and the whole array also embraces more sceptical views. In one of the more radical forms, it is conceived of epistemic struggles in which meanings and their resources are at stake. On this approach, the horizontal constitutionalisation is limited because its proceeding is regarded as determined by processes of meaning-making. The limitation results due to the idea of the epistemic dominance replacing previous (historical) forms of oppression. Advocating certain pluralities of human existence comes with the price of downplaying other pluralities. On a slightly less radical approach, however, those struggles undergo catalytic transformations in cooperative attempts of mutual translations of meanings. While advocating this view of horizontal constitutionalisation, Patrizia Nanz affirms that, with regard to the presumed idea of ‘criss-crossing’ view perspectives and publics, there may emerge—or rather, there is emerging—‘a “community of justification” (…) [that has] also a semantic (or world-disclosing) dimension: the reservoir of potential meanings and interpretations of the world which can be made explicit in public deliberation and which are, as it were, the socio-historical “fleshingout” of our interpretations’118. In light of this, instead of dominating meaningswinners, through which some pluralities come to voice and others do not—which,

117 Pablo Gilalbert, “The Substantive Dimension of Deliberative Practical Rationality”, in Philosophy & Social Criticism, Vol. 31, No. 2, 2005 (pp. 185–210), here pp. 191–192. 118 Patrizia Nanz, Europolis, op. cit., p. 80. She also mentions the ‘collective translation process’. Compare Carlo Invernizzi Accetti, “Can Democracy Emancipate Itself From Political Theology?”, op. cit., p. 258. He follows, however, the Habermasian reflections considering the possibility of using in public spheres arguments drawing on religious beliefs, which is clearly a different context from which Nanz refers to.

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as I stated, would have a considerably limiting impact on the horizontal constitutionalisation and, in fact, render the idea of democratic ethos a vehicle of epistemic oppression—she discerns ‘interpretative charity’ and ‘dialogical solidarity’119 as basic mechanisms of meaning-making; moreover, these mechanisms are capable of generating social integration and trust, and reconciling pluralities while, at the same time, doing them justice. In my opinion, the idea of regenerating the reservoir of meanings in diverse lifeworlds seems to occupy huge importance in this context, because it safeguards the identity formation against any formalistic unification that would threaten the concept of free and unconstrained self-understanding, especially with regard to the said turn, making its crux (normative) self-determination. It also seems to be a more productive concept than the concept of epistemic struggles, developed in the social sciences after the de-construction of certain kinds of power dominance at the level of meaning-making120. The latter turns out to be inscribed in essentialist approaches to culture, which lead to or advocate, as a final result, the unification of lifeworlds. From this, it follows that the concept of a community of justification that is underpinned (besides the normative orientation) by processes of mutual translations of meanings, would have the advantage of assuring the processual renewal of the sources of meanings; and that implies the possibility of ceaseless individualisation in processes of communicative socialisation. Nevertheless, the idea of a constant mutual translation may also be seen as the Achilles heel of this approach to horizontal constitutionalisation. Jan Ifversen rightly points out that ‘one problem with this processual view on culture and identity is, however, that is has difficulties handling different degrees of flexibility and rhythms of change. (…) In its most radical form, a processual view will focus solely on identity as negotiated and not take semantic stability into consideration’121. It must now be fairly clear, on the one hand—as Steven Levine rightly states—that ‘the goal of [epistemic] justification is to discover a truth that always exceeds justification, [therefore] justification can never be final or complete’122. 119 Patrizia Nanz, Europolis, op. cit., p. 6; see also Patrizia Nanz, Multiple Voices: An Interdiscursive Concept of the European Public Sphere, in: John Erik Fossum, Philip Schlessinegr, Geir Ove Kværk (eds.), Public Sphere and Civil Society? Transformations of the European Union, ARENA REPORT No 2/07, http//www.arena.uio.no. 120 Rita Dhamoon, “Shifting From ‘Culture’ to ‘the Cultural’…”, op. cit., pp. 365–366. 121 Jan Ifversen, “Transnational Europe”, in: Per Mouritsen, Knud Erik Jørgensen (eds.), Constituting Communities. Political Solutions to Cultural Conflict, op. cit., p. 124. 122 Steven Levine, “Truth and Moral Validity: On Habermas’ Domesticated Pragmatism”, op. cit., p. 247.

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On the other hand, due to the pragmatic action-circle, ‘when arguments come to an end and truth claims are de-problematized, we are licensed to return to an actionframework where justified beliefs are transformed into behavioral certainties’123. In other words, although epistemic justification can never be final or complete, it nonetheless makes sense under a condition of a pragmatic action-circle that presumes a temporal de-problematisation of truth claims; this de-problematisation employs these truth claims in the context of an action-framework with reference to which the search for truth makes sense. In all of these respects, the concept of an epistemic community of justification, advocated by Nanz, raises several problems. First, participants in communicative actions, viewed as radical translators, may recognise one another as ‘incommensurably’ different124. Second, this recognition of the ‘incommensurable difference’ may shift and in the process effect a mutual translation to ‘othering’. Third, the lack of a temporal de-problematisation of truth claims may—so to say—paralyse the action-conduct, and if the action-framework collapses, then, the search for truth seems meaningless, because the validity claims cannot be corroborated. Fourth, a certain degree of semantic stability is arguably required to sustain the action-framework, to be able to live a life, in particular, in a rational way. Fifth, crucially, a certain degree of semantic stability is required to participate in processes of common action norms justification as an autonomous person—because this justification, namely, the basic rules of practical discourse demand that the participants in such a discourse commonly and consistently determine the use of the terms125 in which the process of justification proceeds, and they justify the common action norms with regard to the actions one may rationally plan, and not as a nonsense language game. A constant negotiation of identities at the semantic level dissolves the resources—that are needed in order to exercise autonomy—in a ceaseless search for meanings that stymie the discursive freedom performance as well as 123 Ibidem, p. 247. 124 As Paul Healy aptly argues, ‘essentially, the core objection is that by over-accentuating the difference between standpoints, it could easily mislead us into thinking that we could never really understand another, construed as so very different from ourselves’; Paul Healy, “Rethinking Deliberative Democracy: From Deliberative Discourse to Transformative Dialogue”, Philosophy & Social Criticism, Vol. 37, No. 3, 2011 (pp. 295–311), here p. 300. 125 Robert Alexy, A Theory of Legal Argumentation. The Theory of Rational Discourse as Theory of Legal Justification, trans. Ruth Adler, Neil MacCormick, Clarendon Press, Oxford 1989, pp.188–191.

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the contribution to an individual and/or cooperative project of self-understanding. Furthermore, there is no discursive freedom without the exercise of the power of judgement that operates in the constant rising and falling from what is general to what is individual and that critically examines one or the other: from constitutional principles till individual well-being and needs. The problem which this approach raises is that it diminishes the capability of the exercise of the power of judgement, because the establishment of shared meanings—even if they are presumed to be only temporarily valid—cannot come true, and it seems impossible to break through from constant semantic translations to more general and reflective (normative) statements. In this context, it seems especially important to give proper weight to the accentuation of the possibility of reaching a mutual understanding on the issues in question (even if it is presumed that it always remains open for revision), and emphasise also the outcomes of discursive cooperation. Heavily stressing the communicative processes of coming to an agreement themselves dissolves in darkness the crux of the matter: the conjunction of reflexive norms justification and action taking on the basis of these norms as motives for action; it dissolves in darkness the moment of action coordination as well as the (re)construction of the normative frames of the world we inhabit, and thus it stymies a critical examination of the social structures. Nonetheless, the affirmation of the temporality of always negotiated meanings as underpinnings of agreements on normative issues is of huge importance and, as such, does not contradict either the premises or an object of communicative action. All of these arguments provide sound reasons for agreeing with Paul Healy that ‘in our interaction with diversely situated others, we inevitably issue criticizable moral as well as epistemic claims which these others are entitled to contest and challenge’126. In that regard, Christian F. Rostbøll rightly underscores that ‘an alleged advantage of public deliberation is that it can deal with unfreely formed convictions by subjecting them to critical, intersubjective scrutiny. Issues such as self-deception, adaptive preference formation, manipulation, ideological domination, and the like may all be contributing factors to the way in which people understand what is good for them. Manipulation and hegemonic domination not only affect people’s explicitly political opinions but also their ethical-existential self-understanding’127. Therefore, the call for entrenching and developing communicative, or—as Rostbøll 126 Paul Healy, “Rethinking Deliberative Democracy: From Deliberative Discourse to Transformative Dialogue”, op. cit., p. 303. 127 Christian F. Rostbøll, Deliberative Freedom, op. cit., p. 156. See also Andrzej Maciej Kaniowski, Filozofia społeczna Jürgena Habermasa, op. cit., pp. 352–354.

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calls it—deliberative freedom, aims also at exceeding its own constraints and shortcomings by unleashing new spaces for freedom and previously unpredicted meanings of itself. In this way, it is supposed to transform unreasonable disagreements into reasonable disagreements128. It is also supposed to revise the meanings held in common use and to deconstruct their oppressive and enslaving forces. The concept of horizontal constitutionalisation indicates, then, processes of discursive resetting of epistemic and normative issues. These are processes of discursive (or, as some authors used to say, communicative, deliberative) freedom performance realised in a critical reflective attitude that is characteristic of the concept of democratic ethos and the exercise of the power of judgement. In other words, when rationality potentials, which are released in discourses, generate the democratic ethos, then the latter launches an increasing discursive penetration of a massive and unproblematic understanding characteristic of lifeworlds. That is, it launches the incremental demand for epistemic and normative justifications. Specifically, the processes grasped within the concept of horizontal constitutionalisation concern an argumentative elaboration of diverse individual affairs in such a way that the reflection moves upward and continues its critical march towards more general issues that involve a more extended, wider array of people, in order

128 Jürgen Habermas, The Inclusion of the Other, op. cit., p. 224. However, things do not go so easily in practice, and the conceptualisation of disagreement, its sources, presumptions and its scope have become a hot topic. In this context, compare William H. Simon, “Three Limitations of Deliberative Democracy: Identity Politics, Bad Faith and Indeterminacy”, in: Stephen Macedo (ed.), Deliberative Politics. Essays on Democracy and Disagreement, Oxford University Press, New York, Oxford, 1999, especially p. 52. See also Samantha Besson, The Morality of Conflict. Reasonable Disagreement and the Law, Hart Publishing, Oxford, Portland, Oregon, 2005; Besson polemicises with Habermas on whether procedural democracy and public discussion may bring an agreement, because, in her view, people disagree on moral issues as well. The source of the argument lays, however, in this, that Besson does not agree with Habermas’s sharp distinction between morality and ethics, and in fact, what she regards as moral disagreements is to be understood in Habermasian terms as ethical ones; see especially “Part One: The Nature of Disagreement” and pp. 212–233. I shall come back to this issue with regard to institutional intersections, as I call transformations of public opinions into will-formation (in other words, these transformations consist of institutional justifications of public decisions) in Chapter IV, elaborating a normative concept of public spheres. See also Thomas McCarthy, “Legitimacy and Diversity: Dialectical Reflections on Analytic Distinctions”, in: Michael Rosenfeld, Andrew Arato (eds.), Habermas on Law and Democracy. Critical Exchanges, University of California Press, Berkeley, Los Angeles, London, 1998.

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to establish common—yet freely justified—action norms, expressed eventually in a constitution. Further, for handling such issues, discourse becomes abstract, and deliberative arrangements become more advanced; then, importantly, the reflection, so to say, moves downward and critically uncovers what was previously amiss, what has been overlooked and what side effects have appeared in the aftermath of the public use of reason. In this context, undoubtedly, ‘articulations of identity and feelings of belonging [are] transgressing the nation state’129. Moreover, as Ifversen concludes, ‘the idea of transgression goes hand in hand with a processual account of identity which is at the core of the transnational. Constitutional patriotism thus seems to provide the best arguments for a transnational citizenship’130. Transnational citizenship is thus a bottom-up response to the concept of constitutional patriotism, and the two processes reinforce one another by forging the self-reflexivity of individuals, positive law and, eventually, democratically designed institutions. The said reinforcement implies an incredibly relevant issue. Taking into account the correlation between the achieved post-conventional level of legal and moral development, proclaimed by Habermas in Communication and the Evolution of Society131 and asserted in The Theory of Communicative Action, it must be noted that processes of increasing cultural reflexivity, underpinned by discursive freedom, render individuals more active citizens and strengthen their agency and voice in public affairs132, which are normatively presumed in the concept of 129 Jan Ifversen, “Transnational Europe…”, op. cit., p. 119. 130 Ibidem, p. 133. 131 Jürgen Habermas, Communication and the Evolution of Society, trans. Thomas McCarthy, Beacon Press, Boston, 1979. 132 With that regard compare highly inspiring and interesting article written by Jensen Sass and John S. Dryzek, “Deliberative Cultures”, Political Theory, Vol. 42, No. 1, 2014 (pp. 3–25). The authors state that the ‘intersubjective account of culture is compatible with the expansive concept of political deliberation that characterizes most work in deliberative theory. Deliberation here encompasses all communication concerning questions of political authority, not restricted to the argumentation, say, of communicative action (Habermas) or public reason (Rawls). Allowable communication includes rhetoric, silence, gossip, humor, ritual, the telling of stories, and what [Jane] Mansbridge calls ‘everyday talk’ (but not command, deception, coercion, or private expressions that cannot reach others). Deliberative theorists can apply critical standards to all these forms of communication. Yet they should also allow that communicative acts which are not deliberative in intention can be deliberative in effect. Certain kinds of protest, for example, may initially operate at the level of affect but later stir reflection and discourse. Thus intentions of individual actors matter less

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constitutional patriotism. Here, we confront some difficulties that I would like to highlight. As Habermas writes, on one hand, the conception of deliberative democracy, in opposition to the republican view, renders that ‘practical reason shifts from the individual level of ethical motivations and insights to the social level of gathering and processing information’133 and, in that regard, it ‘replaces the expectation of virtue with a supposition of rationality’134 which is, in his view, the outcome of the discursive release of rationality potentials. Alas, on the other hand, he explicitly underscores that ‘democratic institutions of freedom disintegrate without initiatives of a population accustomed to freedom’135 and therefore the performance of deliberative freedom, actively realising democratic rights and, more importantly even, becoming accustomed to actively realising these rights, appears to form the very precondition of the feasibility of the deliberative democracy itself, which he admits without any hesitation in arguing that ‘one can easily understand this accommodating lifeworld context in the sense of a “postconventional Sittlichkeit” or democratic ethos’136. What is at stake in this discussion is the significance of individuals as citizens, who are already accustomed to communicative freedom performance in terms of advanced discursive competencies, in order to sustain or even make the idea of deliberative democracy viable137. The problem is that the underpinnings of the concept of democratic ethos are presented by Habermas as ‘small and fulfilled requirements’138, which they definitely are not. According to the democratic ethos’

133 134 135 136 137

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than their significance within larger discursive systems. A deliberative culture comprises the meanings and symbols in terms of which deliberative practices are afforded significance within a specific political context.’; ibidem, p. 8. Jürgen Habermas, “Reply to Symposium Participants, Benjamin N. Cardozo School of Law”, op. cit., p. 385. Ibidem, p. 386. Jürgen Habermas, Between Facts and Norms, op. cit., p. 130. Jürgen Habermas, “Reply to Symposium Participants, Benjamin N. Cardozo School of Law”, op. cit., p. 385. Andrzej Szahaj, Krytyka. Emancypacja. Dialog, op. cit., pp. 173, 176. Clarissa Rile Hayward aptly states that “democracy requires, in addition to democratic institutions, democratic citizens”, “Democracy’s Identity Problem: Is ‘Constitutional Patriotism the Answer?”, Constellations, Vol. 14, No. 2, 2007 (pp. 182–196), here p. 182. Christian F. Rostbøll, Deliberative Freedom, op. cit., p. 164. He also affirms that the main difference between Rawlsian and Habermasian understanding of deliberations is that, respectively, “one of accommodating people with irreconcilable views and another of deliberation as a matter of learning and emancipation” (Christian F. Rostbøll, “Emancipation or accommodation? Habermasian vs. Rawlsian deliberative democracy”,

intrinsic critical nerve, the matter is that it should also put a critical eye on ‘the underlying social conditions that hinder and facilitate the emergence of effective types of political agency’139. Democratic ethos, as such, must be conceived of discursive freedom performance, critical attitude-taking and the exercise of the power of judgement that lead towards ‘the distinction between moral and ethical questions [that] maintains the priority of justice over the good’140; therefore, it does not signify any return to the dominance of the ethical over the moral141, but what remains untouched by Habermas, the social strata conditioning (enabling or stymieing) the deliberative freedom performance, should be critically analysed in greater depth with regard to that issue. The statement that we witness the increasing rationalisation of lifeworlds, in general, does not imply, in one stroke, either that all individuals may develop the subjective-cognitive structures appropriate to these processes, or that each individual has entrenched access to structures where the deliberative freedom, as the exchange of arguments directed at delivering the best available reasons for common action norms, is performed, or that each individual has the available structures within which the dialectic of calling for recognition, recognising and being recognised may proceed142. Crucially, these aspects seem to be interconnected, but the development of subjective structures at the post-conventional level seems to be conditioned by the actual participation in discourse, in the sense of discursive settings and structures both shaping an environment suitable for intellectual (abstract and critical) and empirical (involving a repertoire of repetitions and thus improvement) learning processes as well as delivering diverse resources of meanings. Thus, the critical nerve of the democratic ethos should, first, filter and bring to light all ideologies and false consciousness that stymie individual development and autonomous decision-making and therefore imply encapsulating an individual in such pictures of the world that are immune to others and their arguments, according to the

139 140 141 142

Philosophy & Social Criticism, Vol. 34, No. 7, 2008 (pp. 707–736), here p. 708), and, as a result, what Seyla Benhabib rightly noticed, as transformations of views. Lois McNay, “Feminism and Post-Identity Politics: The Problem of Agency”, Constellations, Vol. 17, No. 4, 2010 (pp. 512–525), here pp. 514–515. Jürgen Habermas, “Reply to Symposium Participants, Benjamin N. Cardozo School of Law”, op. cit., p. 388. Compare Ciaran Cronin, “On the Possibility of a Democratic Constitutional Founding: Habermas and Michelman in Dialogue”, Ratio Juris, Vol. 19, No. 3 September 2006 (pp. 343–369), here p. 367. Compare Sarah Sorial, “Habermas, Feminism, and the Law: Beyond Equality and Difference?”, op. cit., p. 34.

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concept of communicative freedom performed in discourses within the community of justification. Second, it should also take into account the issue of the democraticdiscursive capabilities conditioning the performance of communicative freedom qua discourses143. Third, if the democratic ethos is thought of as a non-oppressive, criticaldiscursive, even emancipatory (basal) shared attitude towards others, then it is supposed to deal with the emotional components of subjective structures and should recognise and find room for the claims to truthfulness backed by the plurality of existence, on the partiality of needs of which one strives for intersubjective recognition. The concept of transnational citizenship, as the bottom-up response to constitutional patriotism, that stems from the processes of rationalising lifeworlds, that is, from realising the communicative freedom by citizens as individuals, presumes a constructivist approach144. This approach unfolds identities as the nonhomogeneous aftermath of processes of the discursive exchange of arguments and thus of the discursive formation of subjective structures in general. Identities may be conceived, from a radical view, as ‘fragmented’145 or ‘multiple’146. As a result, 143 Habermas himself states that ‘arguments are, no doubt, pretty demanding forms of communication’, Jürgen Habermas, Europe. The Faltering Project, trans. Ciaran Cronin, Polity Press, Cambridge, Malden, 2009, p. 147. 144 Compare Karolina M. Cern, “Is a Construction of Lifeworlds Possible?”, in: Ewa Nowak, Dawn E. Schrader, Boris Zizek (eds.), Educating Competencies for Democracy, Peter Lang Edition, Frankfurt am Main, 2013. 145 Compare Marion Demossier, “The Political Structuring of Cultural Identities”, in: Marion Demossier (ed.), The European Puzzle. The Political Structuring of Cultural Identities at a Time of Transitions, Berghahn Books, New York, Oxford, 2007, p. 50. 146 In this context, Thomas Risse indicates four general models of such multiple identities with regard to studies concerning processes of Europeanization (Thomas Risse, A Community of Europeans? Transnational Identities and Public Spheres, op. cit., pp. 24–25), namely, a separate identities model presuming clear-cut values, norms and standards of conduct that are ascribed to each identity. Here, circles of groups with which an individual interacts on the basis of a certain identity are viewed as separated as well; the second, criss-crossing identities model highlights some interconnections between several identities of a person that result in strengthening the overlapping constituents, however without exerting pressure on the parts pertaining to the specificity of a certain identity, which means that the groups with which one interacts may differ; the third, nested identities model, indicates the hierarchical relations among constituents of the multiple identity and thus a more rigid one appears; and finally, a so-called ‘marble cake’ identities model, which Risse finds scientifically the most attractive, presumes that constituents ‘and the identity constructions that are related to them cannot simply be added on, but are intertwined and at least partly mutually reinforcing’, ibidem, p. 25. Compare also a more critical view on the approaches

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these identities are rendered ‘open for difference and permanent contestation, and ha[ve] no need to exclude the “other” for [their] own stabilization’147—here, in the sense of a permanent stabilisation. The said mobilisation of individuals as citizens, launched by the cognitive (reflexive) development in both the individual and societal dimensions, means that citizens discursively solve their disagreements by turning them into reasonable disagreements and also discursively—always taking for granted the discursively achieved ‘temporal’ accords—legitimate common action norms which they then follow on the basis of a cognitive endorsement.

[b] Transferring Conceptualizations of European Identity from Cultural to the Political Field Following Habermas, the democratic ethos stems from the spontaneous utilisation of deliberative freedom by a populace accustomed to doing so. Therefore, one may notice that it differs from ‘place’ to ‘place’, and from society to society. The diversity of its forms and shapes makes an imprint on the course and outcomes of the processes of legal constitutionalisation, namely, on interpretations of universalisable normative claims which are always comprehended as the best ones here and now. The crux of the idea of constitutional patriotism is that the reflexive transformations of lifeworlds keep on animating and sustaining the democratic legitimation of common action norms; moreover, the traditional support for collective action norms derived from the shared ethos focussed on the traditional, substantially understood values is replaced by the common practice of utilising democratic freedoms, safeguarded by the interpretations of universalisable claims and self-reflexive institutions which, in turn, reinforce this active and spontaneous utilisation of democratic freedoms, contributing to the increase in the processes of rationalising cultures. The reflection on these mutually reinforcing processes can be credited, for example, for the new direction in feminist thought, namely, from the politics of identity, heatedly debated in the 1980s and 1990s, to the so-called postidentity issues that relocate accents from the problems of self-understanding

to the conceptions of cultures presented by Ralph Grillo in “European Identity in a Transnational Era”, in: Marion Demossier (ed.), The European Puzzle. The Political Structuring of Cultural Identities at a Time of Transitions, Berghahn Books, New York, Oxford, 2007, pp. 75–76. 147 Patrizia Nanz, Europolis, op. cit., p. 9.

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and recognition to questions of self-determination concerning the normative conditions under which the free (liberated) construction of identities may proceed. This reset of issues seems, at least to me, to deliver a better equipped template, more useful for the claimed purpose of the re-presentation in the processes of a ‘common world’ cooperative construction. The shift, however, is charged of focussing on questions of radical political agency, a public and institutional engagement addressed in abstract terms, instead of speaking out about the problems of a plague with misrecognition in everyday life148. Since the conditions under which the free construction of identities may proceed address principally common action norms as basic rights, which, further on, must be saturated by appropriate sets of legal norms and regulations as well as become translated into appropriate institutional settings, then putting the stress on the significance of political agency aims not only at exerting real influence on the normative framework but also on real social power relations. In other words, due to the proceduralist paradigm of law that is centred on the public sphere, ‘the realisation of one’s private autonomy depends on the articulation of one’s needs in the public sphere; this, in turn, ensures the public recognition of one’s needs’149. This implies too that institutions influence identities, and participation in diverse institutions contributes to learning processes, so such a participation may develop ‘the social and political capacities of each individual’150. Nevertheless, through this line of argumentation, ‘culture has come to the fore as a political

148 Compare the very insightful argumentation of Lois McNay, “Feminism and PostIdentity Politics: The Problem of Agency”, Constellations, Vol. 17, No. 4, 2010 (pp. 512–525). 149 Sarah Sorial, “Habermas, Feminism, and the Law: Beyond Equality and Difference?”, op. cit., p. 32. 150 Denis Vitale, “Between Deliberative and Participatory Democracy. A Contribution to Habermas”, op. cit., p. 750. Vitale points out at three basic objects of participatory democracy that precisely shed light on the very sense of the abovementioned shift from questions of identity to issues of radical political agency. ‘The first is the normative argument that democracy will improve as citizenship is reconstructed and political practice enlarged beyond the representative system. The second is that increased participation is directly related to the reduction of social and economic inequalities. In other words, increased participation is connected to the achievements of a more substantive, rather than formal, democracy. Third is that political participation has an educative function, in that it develops the social and political capacities of each individual’; ibidem.

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tool’151, because cultural identities have proved to be, at least to a considerable degree, formed through processes of political participation, and among them, discursive participation in opinion- and will-formation, in public justifications of political decisions152. For many thinkers, this implies the dependence of culture upon politics. In that regard, Per Mouritsen in Political Responses to Cultural Conflict153 proffers the thesis that one can note ‘a [political] turn in Western political culture’154, namely, ‘the turn to politics-as-response-to-culture’155. The turn implies, in his view, an attempt to redefine the concept of ‘political or civic’ culture, as it would respond to the increasing diversity of modern pluralistic societies. He characterises this concept in a critical fashion and points out its three basic features. Here, I analyse them in light of the Habermasian correlations between the concept of constitutional patriotism and its bottom-up response qua horizontal constitutionalisation. The whole definition of the concept introduced by Per Mouritsen is as follows: First, [1] political values and norms are not mere legal rules to which private individuals must comply. They must be positively internalized. We must carry the constitution in our hearts and show the world that we do so in citizenship ceremonies or naturalization tests. We must let these principles override private and cultural inclinations, let the latter become shaped and coloured by the former, stand up for them and transmit them as a heritage to new generations and newcomers. [2] We must also actively identify with institutions and compatriots and maintain a modernist sense of community, which again overrides any group commitment. [3] Finally, the modern polity requires that we act, and become socialized into acting, as citizens. In short, we cannot simply be private selves with private pursuits; we must be members of a culture of citizenship156.

151 Marion Demossier, “The Political Structuring of Cultural Identities”, in: Marion Demossier (ed.), The European Puzzle. The Political Structuring of Cultural Identities at a Time of Transitions, Berghahn Books, New York, Oxford, 2007, p. 50. 152 It seems highly important that deliberation and participation are two different terms and the concept of participation is not the same as the concept of deliberative/discursive participation. What I advocate through the course of the whole book is, naturally, a certain concept of discursive participation and thus of deliberative democracy. 153 Per Mouritsen, “Political Responses to Cultural Conflict”, in: Per Mouritsen, Knud Erik Jørgensen (eds.), Constituting Communities. Political Solutions to Cultural Conflict, Palgrave Macmillan, Houndmills, Basingstoke, New York, 2008, p. 4. 154 Ibidem, p. 2. 155 Ibidem, p. 4. 156 Ibidem, p. 151.

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Let us analyse each thesis carefully, almost proposition by proposition. [1] ‘First, political values and norms are not mere legal rules to which private individuals must comply.’ As regards constitutional patriotism, the nerve of it consists of the discursive differentiation of principles and norms as well as interests and values, of course. This differentiation utters the relation between, on one hand, constitutional principles and, on the other hand, values and interests in every constitution. From the perspective of deontologically understood political morality, principles ‘trump’ collective goals and/or interests. This results from the theoretical construction of deliberative democracy, where what is crucial is that ‘discourse theory takes an intermediary position in the dispute between communitarians and liberals. It shares the latter’s deontological understanding of freedom, equality, justice and that the right thus takes precedence over what is good’157. Three kinds of arguments—principles, values and interests—become uttered in every constitution; however, only principles understood as a simultaneous source of simultaneous individual autonomy and political autonomy (principles that meet the requirements of the co-originality thesis) constitute ‘threshold weights’158. These threshold weights shape the burden of the deontological interpretation of each constitution (and that is the reason to call such an oriented core of political culture—political morality159): no values nor collective interests can prevail over rights securing individual and political autonomies simultaneously. The consequence of the fundamental importance of taking the analysis further is that no community (neither majoritarian nor minoritarian) can impose on others its set of values, as that would mean refusing any one of these others the constitutional rights to private or political autonomy. In the contemporary liberal tradition, ‘political discourse serves to interpret the principles of justice in a pluralistic community of law’160. Therefore, the focus is directed at concepts of neutrality and fairness. Political morality—the recognition of basic rights as trumping collective interests and/or some sets of values—forms the core of political culture which, in modern pluralistic societies, is to be conceived as abstract (not tailored with pre-given cultural certitudes to any subculture)

157 Erik Oddvar Eriksen, Jarle Weigård, Understanding Habermas, op. cit., pp. 124, 134. 158 Jürgen Habermas, Between Facts and Norms, op. cit., p. 214: ‘The deontological character of noninstrumentalizable rights manifests itself in the fact that they constitute “threshold weights” against political policies and collective goods’. 159 Jürgen Habermas, The Inclusion of the Other, op. cit., p. 215. 160 Patrizia Nanz, Europolis, op. cit., p. 32.

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and distinct from any convictions constituting forms of life. As Habermas underlines, ‘the level of the shared political culture must be uncoupled from the level of subcultures and their prepolitical identities’161. Thus, it comes about here as the recognition of a privileged position of the generalised and abstracted value of political justice. The very sense of the recognition of the universalised and abstracted value of political justice is that ‘if in the same democratic political community various cultural, religious, and ethnic forms of life are to exist among and with each other on equal terms, then the majority culture must become sufficiently detached from its traditional, historically explicable fusion with the political culture shared by all citizens’162. The process of this detachment is described here as the rising of the democratic ethos that takes seriously the turn making selfdetermination the crux of self-understanding. Democratic ethos is founded on the growing self-reflexivity of cultures—the ‘progressive expansion of horizons’, as Habermas calls it—and on the examination of deliberative freedom that puts in the public light diverse problems including its own social and cultural limitations, to which also pertains the perception of any cultural domination. Therefore, the detachment from cultural or any other forms of domination must be problematised by those affected and solved in reasonable, that is, in discursive terms that imply, at the end of the legitimation process, the decentralisation of lifeworlds as a condition under which the impartiality of judgements (solutions) may be met and justice to human plurality done. Analysing Mouritsen’s statement further, we encounter that these ‘values and norms’—that is, actually, constitutional principles—‘are not mere legal rules to which private individuals must comply’. I agree with this statement, as it pertains not only to legal rules but to constitutional principles, which are in need of legitimation on the part of all their addressees, who are also always law-givers. Understanding this seems crucial for comprehending why the next proposition is to be refused or at least significantly reinterpreted. Mouritsen claims that political values and norms ‘must be positively internalized’. Now, we must acknowledge that, basically, it is not about values but about constitutional principles which assure the basic rights of each citizen as free and equal, that is, principles which secure simultaneously one’s private and political autonomies, too; they are to be understood as the legal code within which subsequent legal rules are to be articulated. If internalised, that is, socialised as someone’s own, they would hardly even be values or (cultural) rules, because the more self-reflexive culture is, the greater 161 Jürgen Habermas, The Inclusion of the Other, op. cit., pp. 117–118. 162 Ibidem, p. 160.

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the breadth and scope of the exercise of communicative freedom in discursive terms is on the part of citizens as individuals, and, as a result, the lesser the possibility is for manipulation in any decision-making processes, including processes of (evolutionary) constitution-making. At any rate, the constitutional principles require their autonomous reflexive justification in both cases (that is, in the private and public dimensions), that meet the moral requirements as well as the normative claims of a political sovereign. As stated in The Theory of Communicative Action, on the post-conventional stage, all positive rights and norms are in need of justification by all their addressees, who are always also authors. The principles or norms of an autonomous law-giver of any kind (either individual or political) cannot simply be ‘internalized’; thus, paradoxically, the only object of this ‘internalisation’ that would be taken into account seems to be, and perhaps even should be, if there is at stake a post-conventional concept of law, a critical reflective attitude towards any moral or legal norms or rights. The only ‘object’ of this internalisation would be the discursive shaping of subjective structures which enable an exercise of deliberative freedom that, indeed, exceeds the frontiers between what is private and what is public and aims at a broader emancipation of each individual from contingent (historical, economic, ethical and political) constraints and domination. That is the procedural deliberative heart of the proclaimed transnational citizenship. In the background of this, there are presumed processes of rationalising lifeworlds and structures of personality, sustaining deliberative forms of the polity. This is, in fact, what most threatens those who pursue these kinds of charges. Immediately, however, it must be highlighted that everyone should have secured the right not to take a stance on any issue in question whenever s/he does not want to. Habermas explicitly underlines this as what, in his ‘deliberative democracy’, underpins a liberal understanding of negative rights. Mouritsen writes further that ‘we must carry the constitution in our hearts and show the world that we do so in citizenship ceremonies or naturalization tests’. First of all, let me repeat, we are supposed to carry on a critical reflexive attitude towards all moral norms, basic rights and legal norms/rules. Thus, what we discover in our hearts (just in this context) are rather honesty and authenticity (truthfulness), supporting our reflexively made statements in the sense that the statement really matters to us and conveys our self-understanding. Importantly, this presumes an affective-cognitive correlation, as was mentioned earlier. Whereas the processes of the rationalisation and reflexivity of lifeworlds proceed, our self-understanding is supposed to gain an increasingly reflective feature and, as stated above, the specific turn comes to characterise it: its matter consists of a

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discursive-normative self-determination. The term implies, then, that in the selfunderstanding is imprinted an orientation at doing justice to the requirement of impartiality in front of diverse conceptions of the good with regard to the idea of the community of justification as its underpinning. In other words, this doing justice implies the impartiality of judgements, but which are necessarily based on reasons—reasons that must be so reflexively transformed to create the possibility of a reasonable agreement or at least reasonable disagreement among those who do not share the strong substantial convictions about the world and the social relations within it. The direct transparency of normative claims can no longer be put forward. In this sense, in ‘a democratic constitutional state (…) the identity of the political community (…) is founded on the constitutional principles anchored in the political culture and not on the basis of ethical orientations of the cultural form of life predominant in the country’163. However, in order to meet this normative requirement, citizens are supposed to exercise their deliberative freedom as a trigger of their political agency and voice. In this context, Mouritsen asks whether ‘we must let these principles override private and cultural inclinations, let the latter become shaped and coloured by the former, stand up for them and transmit them as a heritage to new generations and newcomers’. The answer depends on how one understands ‘overriding’. If ‘override’ means ‘disregard’, then one misses the idea of constitutional patriotism and the complementary horizontal constitutionalisation, because, in the whole story, the emphasis is put, on the one hand, on securing the same freedom and equality of each citizen as a person and, on the other hand, on communicative freedom that also puts in question in discourses the given expressions of the former, in the sense that it entails an interpretation of a heritage as a tradition which is long-living, as long it is animated by cooperative projects of self-understanding that open the future up to all. The freedoms of everyone are safeguarded qua basic rights in the medium of law, and this means that the private and cultural inclinations of each individual are under the protection of the law compelling respect from diverse parties (individuals or groups) under those two conditions, which are founded on basic principles transcending lifeworlds and are in constant need of justification regarding what makes their utterance temporal. From the above elucidations, it follows that ‘the ethical integration of groups and subcultures with their own collective identities must be uncoupled from the abstract political integration that includes all citizens equally’164. An abstract 163 Jürgen Habermas, The Inclusion of the Other, op. cit., p. 229. 164 Ibidem, pp. 224–225; compare Erik Oddvar Eriksen, Jarle Weigård, Understanding Habermas, op. cit., p. 136.

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political culture is where the Versinnlichung of abstract norms (basic rights) cooperatively proceeds, and those norms are approximated and conceived of abstract political values—or more precisely, in light of previous analyses, these abstract political values are political ideals characteristic of a given polity—expressing diverse commonalities among different ethical life forms, such as democracy or freedom, which are primarily and originally abstract ideas (decoupled from relationships to particular political or historical ideals) or are uttered as normative claims, but not as evaluative expressions. These abstract political ideals regain, above all in the public, motivational force and become more flexible and suitable with regard to appropriate incorporations back to the lifeworlds, where they are supposed to filter massive contexts of unproblematic understanding. Therefore, if ‘override’ means ‘take precedence over’, then, only in this sense may it be appropriately comprehended that the freedom of each individual as equal to anybody else takes precedence over another’s ethical inclinations or interests. But that is not all, because one may charge every current formulation of a constitution with failing to protect all citizens equally, and may stand up in public for constitutional change. The very kernel of the Habermasian considerations is that the constitution is a historical project which takes seriously the positivity of law. ‘Even constitutional norms may be changed. This is meant when we say that modern law is positive. It is made by human beings and can be enforced, but it is also revisable.’165 This is the reason why I cannot agree with the statement that political values and norms ‘must be positively internalized’ and ‘override private and cultural inclinations’. They express a historical project which calls for undertaking by every next generation anew. As it is a project belonging to a positive law, it can be reformulated by citizens participating in political public spheres. Moreover, the citizens are expected to take on their shoulders their own autonomy, stand for their rights discursively and participate in the political life of the polity to which they belong. [2] ‘We must also actively identify with institutions and compatriots and maintain a modernist sense of community, which again overrides any group commitment.’ Mouritsen is quite right in indicating institutions as a possible source (in fact, one of many possible sources) of our identity formation. He seems to ignore, however, two important processes indicated by Habermas. First of all, Habermas refers to communicative structures, in which basically opinion-formation takes place, and to discursive will-formation that takes place basically in strong publics, 165 Erik Oddvar Eriksen, Jarle Weigård, Understanding Habermas, op. cit., p. 129.

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that is, in political institutions. From these two statements, it follows that social solidarity—which he talks about—is built within those communicative structures, including political institutions wherein the social solidarity is built through active participation in them. Who chooses (because the freedom to choose is the subject of the abovementioned kind of autonomy) not to act—in those communicative structures and political institutional discourses—is free to do so. Active participation in (political) institutions leaves a mark on both the participants and the institutions. In fact, participating in institutions may socialise a more discursive (more open to challenge) formulation of one’s validity claims, ends and so forth. It may do so, but it does not have to, as the possibility of such transformations of claims depends on the extent to which the institutional settings presume and actually enable such a discursive transformation of arguments as justifications of decisions. From the other side, institutions must deal with more different and diverse validity claims of their office holders and citizens or solve such problems that are in need of discursive formulation and operationalisation of abstract rules in order to handle all of the problems citizens bring to them. Therefore, any ‘identification with institutions’ is to be understood in terms of participation in institutions, which is characterised by a critical reflexive attitude-taking. Having described this perspective, one may see that ‘identification with compatriots’ sounds as though it is at odds with, and ‘maintaining a modernist sense of community, which again overrides any group commitment’ sounds contradictory to, ‘a modernist sense of a political community’ that is established through, as I name it, the institutional intersections between opinion- and will-formation, where the principles and norms of the polity are at stake. Thus, the ‘overriding’ of any group commitments starts, in fact, at the horizontal level of a free (transnational) opinion formation among diverse communities and individuals, and continues to rise spontaneously upward towards more institutional and more vertical discursive structures, where their entrenchment or contestation takes place. From this perspective, the use of ‘overriding’ is definitely unjustified, as a horizontal constitutionalisation indicates processes of communicative freedom performance qua discourses. Only spontaneous transnational communication ‘takes the form of a nonleveling and nonappropriating inclusion of the other in his otherness’166 which meets the normative requirement uttered in the concept of the community of justification, from which none may be excluded and everyone may rightfully expect the justifications of regulations or of the actions one encounters. 166 Jürgen Habermas, The Inclusion of the Other, op. cit., p. 40.

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[3] ‘Finally, the modern polity requires that we act, and become socialized into acting, as citizens. In short, we cannot simply be private selves with private pursuits; we must be members of a culture of citizenship.’ The first thing in need of clarification that must be explicitly stressed here is that constitutional patriotism is thought to reconcile both the liberal and republican perspectives. It is oriented at stressing the role of voluntary participation in public spheres, and therefore the two attitudes towards participation in opinion- and willformation are equally entitled as well as justified: a deliberative participation in public spheres and—as John Erik Fossum calls it—argumentative exit ‘through the protection of silence or licence to step up of the communicative space; citizens need not partake in all forms of activities’167. They all ‘must have the opportunity to choose exit or to not have an opinion at all’168. Nevertheless, what is each time at stake is their freedom, understood in terms of deliberative freedom, and the autonomous argumentation of one’s own opinion formation. Thus, participating in deliberative structures emancipates everyone from dominant ideologies and stereotypes, enabling everyone to acknowledge the limits of structures and resources in which their thinking about the world moves on169. To the same extent, both the deliberative exit and citizens’ empowerment functioning at the legal, institutional and social levels remain in need of securing. The idea of constitutional patriotism is supported by the co-originality thesis regarding both the principles of the rule of law and popular sovereignty, which implies so abstract a concept of autonomy that it embraces simultaneously private and political autonomies. ‘According to Habermas, legitimate political power 167 John Erik Fossum, “Constitutional Patriotism: Canada and the European Union”, in: Per Mouritsen, Knud Erik Jørgensen (eds.), Constituting Communities. Political Solutions to Cultural Conflict, Palgrave Macmillan, Houndmills, Basingstoke, New York, 2008, p. 143. 168 Erik Oddvar Eriksen, Jarle Weigård, Understanding Habermas, op. cit., p. 148. However, in Christian Rostbøll’s view, this is only a dodging strategy, because, instead of asking about private affairs, people are asked about their personal standpoint in general terms, so it requires a kind of courage to claim what one thinks and to be open to counterarguments; compare Christian Rostbøll, Deliberative Freedom, op. cit., pp. 167–168. 169 Christian F. Rostbøll, “Emancipation or Accommodation? Habermasian vs. Rawlsian Deliberative Democracy”, op. cit., p. 723: ‘The problem with ideology is that it excludes certain issues from being publicly discussed at all. The call for a more deliberative democracy on this view is a call for politicization, politicization in the sense of opening up for reflection the practical-moral issue sides of our relationships and conditions under which we live’.

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arises through the interaction between legally institutionalized, discourse arrangements and culturally mobilized public spheres, where the citizens both have the freedom to participate and to refrain from it’170; they are just free to participate in public spheres or to ‘argumentatively exit’ from them. They may argumentatively agree or disagree on the issues at stake. The ‘constructivist argument for “democratic legitimacy through communica­ tion”’171 is that public debates integrate people through and within the processes of law legitimation172. Hence, the constructivist thesis is as follows: collective identities (at the abstract level, referring to the [abstract] political culture) can be (re)constructed in and through discourses. Political participation, that is, discursive participation in institutions, in turn, influences individual and/or collective identities to the extent that the institutions entail discursive justifications of decisions. In fact, the discourses re-establish these individual as well as collective identities through ongoing debates. From this point of view, the processes of identity (re)construction trigger another turn; in other words, what is formed here is not just a particular collective identity but the concept of citizenship. Furthermore, this concept, referring to the exercise of communicative freedom and constant (re)negotiation of the normative and social frameworks of private and public autonomies is of a very specific kind. If universal normative principles always depend on supplements of particularity that enable them to become objects of attachment and identification but that are also never quite equivalent to the principles they purport to embody, then constitutional patriotism can best be understood not as a safe and reliable identification with some pure set of already available universals, but rather as a political practice of refusing or resisting particular identifications—of insisting on and making manifest this failure of equivalence—for the sake of the ongoing, always incomplete, and often unpredictable project of universalization173.

This specific position-taking is, with regard to my previous analyses, demanded by the term political morality, which refers to the two interplaying moments: universalisable normative claims (in which there is inscribed a cosmopolitan moment) and the particular context of a polity that undergoes ongoing processes of self-constitutionalisation. Furthermore, this understanding of the term political morality seems to be compatible with the concept of democratic ethos, for which

170 171 172 173

Erik Oddvar Eriksen, Jarle Weigård, Understanding Habermas, op. cit., p. 126. Patrizia Nanz, Europolis, op. cit., p. 22. Jürgen Habermas, The Inclusion of the Other, op. cit., pp. 243–244. Patchen Markell, “Making Affect Safe for Democracy? On ‘Constitutional Patriotism’”, Political Theory, Vol. 28, No. 1, February 2000 (pp. 38–63), here p. 40.

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the idea of self-determination turns out to form the matter of self-understanding and thus gives birth to the concept of horizontal constitutionalisation resulting in those who live in self-reflexive cultures discursively transgressing state-national borders. Therefore, universalisable normative claims indicate a cosmopolitan moment in the sense that they ‘appeal to the universal public that constitutes the basis for the higher-order principles upon which the democratic constitutional state is founded’174; in other words, they evoke humanity as the community of justification in which everybody should be free and equal. The above-quoted attitude, as a constitutive moment of political morality, means, first, that this refusal is to be understood at a political level, on the level of an abstract political culture, yet it does not call for any schizophrenic attitudetaking towards one’s own self. Second, this refusal of any particular identification does justice to the turn characteristic of the emergence of the democratic ethos, which consists of making self-determination a matter of self-understanding. If the defence, against any form of domination that infringes on one’s freedom, relies on the right to be given a reason, to be given a justification that is acceptable on the basis of impartiality, then an argumentative openness for better formulations of universalisable normative claims must characterise every political identity. This, on the other hand, entails a certain cosmopolitan attitude that means simply refraining from any ‘safe and reliable identification with some pure set of already available universals’; this, however, may generate certain tensions with reference to particular political contexts. Nevertheless, analyses of the contexts of the justifications in the Habermasian theory provide sound reasons for comprehending these tensions in terms of the communicative power unleashed in discourse, that is, as tensions causing further processes of rationalisation—or, at least, liberating from any ideological constraints—tailored, with regard to their speed, to the polity in question. The above-presented idea, however, raises different argumentative strategies which contribute to the debates on the relationship between the cosmopolitan and national levels of politics. One might even say that this entails a heated debate on the issue at stake. For example, Nanz deems that ‘Jürgen Habermas’s proceduralist theory of deliberative democracy formulates an idea of democratic constitutionalism which fully accounts for the universalist core of this idea and detaches it from the particularism of any specific national (political) culture’175. 174 Erik Oddvar Eriksen, Jarle Weigård, Understanding Habermas, op. cit., p. 135. 175 Patrizia Nanz, Europolis, op. cit., p. 23. Michel Rosenfeld agrees with this view on Habermas’s constitutional patriotism but that is the reason for the critique he provides

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The contrary view is advocated by Jan-Werner Müller, for whom ‘constitutional patriotism refers necessarily to particular, more or less clearly bounded political associations—it is precisely not the same as free-floating universalism or an ethical cosmopolitanism aimed at treating all humans equally. Its focus is on particular political structures, not humanity as a whole’176. In my more moderate view, the idea of constitutional patriotism has inscribed in itself cosmopolitan emancipatory potential. However, its viability is always temporarily limited177; in other words, it is tailored to the polity in question, in terms of necessarily meeting halfway real social solidarity resulting from horizontal constitutionalisation— an actual social co-operation aiming at the communicative establishment of fair terms of political association within the space of discursive institutional settings. The interpretations of universalisable claims, their justifications and their applications, in other words, the institutional functioning of a polity, as Habermas stresses, should be ‘internally related to the life-plans and lifestyles of all affected persons in a way they can grasp for themselves’178. The legal constitutionalisation—that is, processes of constitution-making—should draw their legitimating forces from the processes of discursive will-formation that proceed in institutional intersections; and the latter should draw their legitimacy from processes of horizontal constitutionalisation179. These clusters of processes that meet halfway in institutional intersections, wherein opinions should be discursively transformed into political decisions, in fact, influence and reinforce one another, so they form an interpretative-legitimating circle that has nothing to do with the vicious circle. Hence, I find quite justified the following formulation, made by Pablo de Greiff, concerning the inclusion of ethical components in the idea in question. He states that ‘if the validity of law were simply contingent on the law achieving certain goals and on embodying a shared community identity, Habermas’s legal theory would collapse into a form of communitarian positivism. While with the positivists

176 177 178 179

in the name of ‘comprehensive pluralism’ in Michel Rosenfeld, “Habermas’s Call for Cosmopolitan Constitutional Patriotism in an Age of Global Terror: A Pluralist Appraisal”, Constellations, Vol. 14, No. 2, 2007 (pp. 159–181). Jan-Werner Müller, A European Constitutional Patriotism? The Case Restated, in European Law Journal, Vol. 14, No. 5, September 2008 (pp. 542–557), here p. 545. Compare Robert Fine, Will Smith, “Jürgen Habermas’s Theory of Cosmopolitanism”, Constellations, Vol. 10, No. 4, 2003 (pp. 469–4870), here pp. 471–473. Jürgen Habermas, The Inclusion of the Other, op. cit., p. 100. Jürgen Habermas, “Postscript to Between Facts and Norms”, in: Mathieu Deflem (ed.), Habermas, Modernity and Law, SAGE Publications, London, Thousand Oaks, California, New Delhi, 1996, pp. 140–141.

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Habermas wants to distinguish between morality and law, against positivism, he insists that legitimacy imposes moral constraints on the law. Legitimate laws, therefore, can express a community’s sense of identity, and reflect its evaluative and practical priorities as well, so far as the laws’ compatibility with the universalistic requirements of morality has been established’180. The idea of humanity, understood as an inclusive community of justification forms a backdrop against which the particularity of every political community is to be each time critically elaborated. That is the reason why I entirely disagree with Müller, when he goes further in his argumentation and affirms that constitutional patriotism is a form of ‘statist nationalism’181. In my view, quite on the contrary to his claim, constitutional patriotism presumes reflexive processes triggered by the democratic ethos, that is, processes of horizontal constitutionalisation, and complementary political morality, that Patchen Markell captures in terms of a constant refusal of any solid identity ascription which enables the decoupling of an identity from the constraints of national terms182. Moreover, and quite paradoxically in the context of Müller’s statement, this flux vision of an identity formation (that he misrecognises in the idea of constitutional patriotism) triggers claims (precisely, charges against it) that it does not respond to the remarkable and profound question of who we are and that we should make ‘efforts to articulate definitions of “who we are” and “who we want to be” that depart from dominant definitions, efforts to advance and to defend competing accounts of how a particular polity might create a cohesive identity’183. As for me, the claim to make always the best—here and now—interpretations of universalisable normative claims as well as the complementary claim that I made

180 Pablo De Greiff, “Habermas on Nationalism and Cosmopolitanism”, Ratio Juris, Vol. 15, No. 4, December 2002 (pp. 418–38); here p. 424. 181 Jan-Werner Müller, “Three Objections to Constitutional Patriotism”, Constellations, Vol. 14, No. 2, 2007 (pp. 197–209). 182 Compare Cris Shore, “‘Government Without Statehood’? Anthropological Perspectives on Governance and Sovereignty in the European Union”, European Law Journal, Vol. 12, No. 6, November 2006 (pp. 709–724), here pp. 718–719. 183 Clarissa Rile Hayward, “Democracy’s Identity Problem: Is ‘Constitutional Patriotism’ the Answer?”, op., cit., p. 193; although she claims that it is ‘a double-edged sword’; ibidem, p. 190. Stephen Macedo unmasks the attempts made in recent reforms in education, in the United States and in France; their ideological, unreflective burden does not fit the idea of constitutional patriotism even a bit; compare: Stephen Macedo, “Just Patriotism?”, Philosophy & Social Criticism, Vol. 37, No. 4, 2011 (pp. 413–423), especially p. 420.

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in this chapter, that self-determination becomes a matter of self-understanding in modern times, characterised by self-reflexive cultures, should be treated with their whole gravity. As a result, it opens up a hard way that we should follow, that is, the way towards universalisable normative claims, on which we take into account the given understandings, the ones we are to consider on our own while collaboratively constructing the future. Respectively, if the law has developed such that it reaches the post-conventional level, we should also complementarily presume that individuals may and should develop at the post-conventional level, and develop a reflexive attitude towards themselves, others and the world (of course, the issue indicates the above-announced problems regarding education and unequal access to structures of deliberative freedom). Then the question of who we are may be answered: we are those who argumentatively, critically and, most of all, cooperatively construct the world in which we live. Moreover, according to the critical roots of Habermasian thinking, this suits the idea of self-emancipation from dominant ideologies184. Well, nobody has promised that democracy will bring easy answers to complex questions.

184 Christian F. Rostbøll, “Emancipation or Accommodation? Habermasian vs. Rawlsian Deliberative Democracy”, op. cit., especially pp. 721– 723.

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CHAPTER IV Institutional Intersections or Contractarianism by Habermas As far back as the 1970s and 1980s, Habermas directs his investigations towards processes and procedures of justifying a legal system. The main theme here is the post-conventional, and thus modern, stage of law development, which recognises that—as he writes in The Theory of Communicative Action—‘the domain of legality as a whole stands in need of practical justification’1. Further, this is understood in terms of a consensus that requires the conformity of legal and moral principles, because the conformity enables the observance of the law as a mark of respect, since its principles have become worthy of such recognition2. In my view, this very issue has been the main theme of the Habermasian investigations up until now, and it has been elaborated more in-depth from the constructivist standpoint of Kantian provenance, which I will try to demonstrate in this chapter. As a result, Habermas’s application of the constructivist means to the philosophy of law leads to the contractarian paradigm of the post-conventional stage of the reflection.

1. A short Outline of the Basic Ideas that Characterise Contractarian Theories The most significant idea of contractarian theories, in general terms, has always been to determine the source of the legitimation of such rules of a common political order and erected on them institutions, which all citizens will protect and

1 2

Jürgen Habermas, The Theory of Communicative Action, Volume I, Reason and the Rationalization of Society, trans. Thomas McCarthy, Beacon Press, Boston, 1984, p. 261. Ibidem, pp. 260–261: ‘The positivisation, legalization, and formalization of law mean that the validity of law can no longer feed off the taken-for-granted authority of moral traditions but requires an autonomous foundations, that is, a foundation that is not only relative to given ends. Moral consciousness can satisfy such a requirement only at the postconventional level. It is here that there first emerges the idea that legal norms are in principle open to criticism and in need of justification (…). What is important is that an autonomous grounding, independent of tradition, is required—in Weber’s terms, that validity based on traditional consensus is replaced by validity based on rational consensus’.

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consent to, expressed on the part of those citizens to whom all basic rules and political settings are addressed. The basic difference between classic and modern contractarian conceptions seems to lie in questions that the people have tried and/or are still trying to answer, while determining the breadth and scope of the consent and its validity. The most heatedly debated contractarian arguments in the Age of Enlightenment3, as Geoffry Sayre-McCord points out4, concerned basically three issues: (a) the origins of the government which was no longer seen as rooted in any transcendent authority, (b) the justification of compliance with the decisions of a government and, at the same time, (c) the justification of the limits of the governmental authority. As Massimo La Torre notes, ‘the prevailing German natural law doctrine favoured a triadic model of social contract. This was conceived as developing along three progressive stages: (i) pactum unionins, (…) (ii) pactum ordinationis, (…) (iii) pactum subordinationis (…)’5. The contemporary contractarian approaches are instead focused on articulating the interrelations between moral reasons and the mutual acceptability of common norms or rules to which reasonable beings would consent under certain conditions6. However, this gives rise to complex problems related to7 (a) the diversity of citizens who articulate the consent; (b) the diversity of citizens as the addressees of the consent; and (c) the diversity of citizens to whom the arguments provided in favour of the consent are to be addressed. In other words, the most current problems one must face with regard to this kind of approach indicate the following issues: who may agree, on what s/he may agree and due to what kind of procedure whereby the agreement signifies consent to legitimised common action norms (here appears the difference between those who articulate an agreement and those who should be convinced of it in order to accept it and thus legitimate it; this difference strongly influences the matter of the consent). 3

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See on this issue Jean Hampton, The Intrinsic Worth of Persons. Contractarianism in Moral and Political Philosophy, Daniel Fernham (ed.), Cambridge University Press, New York, 2007, especially Chapter 6 “The Contractarian Explanation of the State”; Jean Hampton, Political Philosophy, Westview Press, Westview, Oxford, 1997, p. 39ff. In the following paragraph, I reconstruct questions presented by Geoffrey SayreMcCord in “Contractarianism”, in: Hugh LaFollette (ed.), Ethical Theory (6th ed.), Blackwell Publishing, Padstaw, Cornwell, 2005, p. 249. Massimo La Torre, Constitutionalism and Legal Reasoning, Springer, Dordrecht, 2007, p. 5. Geoffrey Sayre-McCord, “Contractarianism”, op. cit., pp. 254–257. Ibidem, pp. 257–258.

According to Jean Hampton8, there are two pivotal aspects of contractarian conceptions: descriptive and prescriptive aspects. The former addresses the question of who are those that are supposed to enter into a social contract and what these people are like in general; in other words, it addresses what their basic characteristic is. The latter therefore indicates certain rules and/or norms as a matter of the consent in question, because taking into account what people are like enables the formulation of such common obligations that they might have good reasons to accept. These two reflective moments (descriptive and prescriptive) always occur in a certain order, as they are designated for certain tasks. Though there are generally three theoretical elements that are quite essential and specific for contractarian theories that organise and systematise these kinds of arguments. In individual proposals of particular thinkers, they are sometimes ascribed different names, although they occupy quite similar roles and functions within the theoretical template9. These three elements are as follows: pre-political/pre-social state10 → conditions enabling the entrance into the social contract → the social contract and the emergence of a polity

8

Jean Hampton, „Contract and consent“, in: Robert E. Goodin, Philip Pettit, (eds.), A Companion to Contemporary Political Philosophy, Blackwell Publishers, Oxford, Malden, Massachusetts 1995. 9 Karolina M. Cern, „Kontraktualizm“ [Contractarianism], in: Czesław Sułkowski (ed.), Wybrane problemy ekonomiczne i filozoficzne [Selected Economic and Philosophical Issues], Instytut Ekonomii i Zarządzania Politechniki Szczecińskiej, seria: Gospodarka i Społeczeństwo, Szczecin, 2006. 10 Sir Ernest Barker, “Introduction”, in: Sir Ernest Barker (ed.), Social Contract. Essays by Locke, Hume, and Rousseau. With an Introduction by Sir Ernest Barker, Oxford University Press, London. Oxford, New York, 1960, p. xii: ‘The theory of a contract of a government really postulates, as a prior condition, the theory of a contract of society. (…) We shall therefore say that the contract of government creates potestas, but only potestas; we shall say that the contract of society creates societas itself; and we shall recognize that societas is greater than potestas, or at any rate prior to potestas’. However, I rather doubt whether that statement implies Thomas Hobbes’s theory of the social contract, which is quite relevant here, because in the course of the book, I emphasise that for Habermas, the code of law is meant to serve as the code of rights that shape both political and social relations among the consonants of the political community. Habermas draws on this point on Hegel, but Hobbes would be considered as the first one in the modern era to, let me say, trigger the thinking on this idea.

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In the case of classical contractarian theories, the three elements are as follows: the state of nature → the laws of nature → the social contract

2. Habermas’s Transformations of the Contractarian Paradigm In the following analysis, I aim at demonstrating that there are good reasons to deem the Habermasian proposal as a contractarian reflection provided at the post-conventional stage of the development of this paradigm11. This means that ground-breaking changes are introduced into the theoretical scheme of contractarian thought; for example, instead of a hypothetical state of nature, Habermas elaborates a hypothetical attitude of the participants in actual discourses12 that 11 Habermas himself confesses that ‘consequently, a discursive or deliberative model replaces the contract model: the legal community constitutes itself not by way of a social contact but on the basis of a discursively achieved agreement’, Jürgen Habermas, “Postscript to Between Facts and Norms”, in: Mathieu Deflen (ed.), Habermas, Modernity and Law, SAGE Publications, London, Thousand Oaks, California, New Delhi, 1996, p. 137. In that regard, I state that the Habermasian discursive model is a post-conventional model of contractarian provenance. 12 In the following analyses, I am concerned with analyses provided on the grounds of the theory of discourse, and with its application to a democratic polity; thus, I employ the basic terms drawn up with regard to these two theoretical phases: discourse theory and its application to a democratic polity. Therefore, one must keep in mind that rules of discourse ethics are reflectively reconstructed from the structures of communicative actions and, in this sense, they are universally valid, yet nonprovable. The discursive argumentation presumes an ‘ideal speech situation’ as a critical yardstick (Jürgen Habermas, “Reply to Symposium Participants, Benjamin N. Cardozo School of Law”, transl. William Rehg, in: Michael Rosenfeld, Andrew Arato (eds.), Habermas on Law and Democracy. Critical Exchanges, University of California Press, Berkeley, Los Angeles, London, 1998, p. 418) for filtering any real discursive circumstances in order to enable the exchange and transformation of arguments in use and—crucially—reaching an agreement on the issue in question. On the ideal speech situation, with regard to the issues in question in the main course of my considerations, Seyla Benhabib writes in detail, Critique, Norm and Utopia. A Study of the Formulation of Critical Theory, Columbia University Press, New York, 1986, pp. 283–297; see also Steven Levine, “Truth and Moral Validity: On Habermas’ Domesticated Pragmatism”, Constellations, Vol. 18, No. 2, 2011 (pp. 244–259); here p. 245; Paul Healy, “Rethinking Deliberative Democracy: From Deliberative Discourse to Transformative Dialogue”, Philosophy & Social Criticism, Vol. 37,

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take place in the real world; instead of laws of nature, there are two principles in constant action in these discourses: the principle of discourse (D) and the argumentative principle of universalisation (U). Eventually, due to the claim that ‘the logic of justice questions becomes dynamic’13, the social contract is understood in terms of the ongoing processes of self-constitutionalisation that also socialise citizens and, as such, exceed national borders and take over the role of a pure act (of a constitution enactment) undertaken by the citizens of a particular polity. In its essence, the consent uttered in a constitution (that is, in the ongoing practice of ‘constitution-founding’14) unveils itself to be built upon agreements made in, as I call them, institutional intersections and in processes of horizontal constitutionalisation. That is why, on this approach, the consent that is viewed as a process is to be legitimised in public procedures of the ongoing legitimation of the law. Therefore, interestingly, it may be stated that on this approach, not particular citizens but subjectless public spheres (first, communicatively, second, procedurally organised), are ‘subjects’ of the ongoing utterance of consent15. In order to lucidly present the argumentative structure of the Habermasian considerations, I shall embark on an elaboration of the conditions that enable the entrance into a social contract (A); then I shall go through the modifications of the hypothetical momentum uttered in the concept of a pre-political (or pre-social) state of nature (B); and, finally, I shall turn the analysis to a post-conventional No. 3, 2011 (pp. 295–311); Karolina M. Cern. Bartosz Wojciechowski, “Postmetaphysical Approach to Moral Autonomy and Justification of the Thesis of the Necessary Relations between the Legal and Moral Discourse”, in: Bartosz Wojciechowski, Piotr W. Juchacz, Karolina M. Cern (eds.), Legal Rules, Moral Norms and Democratic Principles, Peter Lang Verlag, Frankfurt am Main, 2013. 13 Jürgen Habermas, “Reply to Symposium Participants, Benjamin N. Cardozo School of Law”, op. cit., p. 388. 14 Jürgen Habermas, “Postscript to Between Facts and Norms“, op. cit., pp. 140–141. 15 Jürgen Habermas, “Reply to Symposium Participants, Benjamin N. Cardozo School of Law”, op. cit., pp. 391–392: ‘Today, the abstract legal persons of classical jurisprudence must be replaced with an intersubjective concept: the identity of the individual is interwoven with collective identities”. However, it thus not imply that Habermas argues for “collective human rights’. On this subject see: Georg Lohmann, “‘Kollektive’ Menschenrechte zum Schutz ethnischer Minderheiten?”, in: Thomas Rentsch (ed.), Anthropologie, Ethik, Politik. Grundfragen der praktischen Philosophie der Gegenwart, Dresden, 2004; Georg Lohmann, “Unterschiedliche Kulturen— warum universelle Menschenrechte?”, in: Adrian Holderegger, Siegfried Weichlein, Simone Zurbuchen (eds.), Humanismus. Sein kritisches Potential für Gegenwart und Zukunft, Academie Press Fribourg, Schwabe Verlag, Basel, 2011.

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understanding of a social contract as ongoing processes of a worldwide selfconstitutionalisation (C).

A) C  onditions that Enable the Entrance into the Social Contract Let us recall and put into argumentative action the investigations conducted in Chapter II. In the widely discussed article “Constitutional Democracy. A Paradoxical Union of Contradictory Principles?”16 Habermas draws a comparison between political self-legislation and moral self-legislation qua the appropriate principles inscribed in these processes, namely, the rule of law and the categorical imperative. This comparison is founded on the principle of the autonomy of will. Now, if the principle of autonomy is met, that is, if the very principle serves as the basis for a reflexive shaping of maxims, then the maxims as norms (with regard to their content, that is, their normative meaning) must also, due to their form, meet the requirement of representing the moral law, which is a universal one. The intended meaning of the procedure is that if the maxims are shaped just with reference to the principle of autonomy, then the will shall reveal itself as commonly law-giving. This accomplishment of the required universal form—of the maxims—results from the Kantian decisive assumption that what is in need of reflexive elaboration is a construction of such conditions of action that, if met, then the autonomy of will is granted17. In the practical philosophy of this famous thinker from Königsberg, it is precisely these conditions that the categorical imperative delivers, elaborated precisely to achieve this goal. In other words, the very object of the categorical imperative is the formal conformity of a maxim of action to the moral law. Further, the said conformity justifies the rightness of the moral norms (maxims). In the case of Habermasin practical philosophy, the focal issue is the construction of such conditions of action under which, if they are met, individual autonomy (moral autonomy of individuals) and public autonomy (popular sovereignty) are granted. Further, when they are granted, the legitimacy of law is justified. The construction of the abovementioned conditions of action is founded on

16 Jürgen Habermas, “Constitutional Democracy. A Paradoxical Union of Contradictory Principles?”, Political Theory, Vol. 29, No. 6, December 2001 (pp. 766–781). 17 Immanuel Kant, Grundlegung zur Metaphysik der Sitten, Werke in sechs Bänden, Könemann, Köln, 1995, p. 184 [396].

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the co-originality thesis, that is, the co-originality of the rule of law and the principium of popular sovereignty stating that ‘in normative terms, there is no such thing as a constitutional state without democracy’18. The construction of the abovementioned conditions, under which the legal system of positive law may be deemed legitimised, is, in its essence, rooted in the theory of communicative action, or more precisely, in its further development, namely, in the discourse theory that differentiates two principles: the principle of universalisation (U) and the principle of discourse (D). The very sense of this differentiation—with regard to the analyses that will be provided in this chapter— consists of the institutionalisation of the discourse rules in the medium of law. This institutionalisation delivers the means for the legal assurance of public autonomy (understood as civic participation in the processes of law-making) as well as for the assurance of private autonomy19. The laws of law-making, obtained subsequent to this institutionalisation, do justice to the principle of democracy, and then, in the following procedural steps, become saturated in the normative matter with regard to the principle of argumentation (U). The latter comes into action afterwards, that is, in the procedures of saturation of the legal code in the normative content20. The institutionalisation of the discourse rules forms a legal code indicating the procedures for reaching an agreement on the constitutional norms and the legal system in general. This agreement is thought to be—with respect to the principle of democracy that is launched by the establishment of the legal code—an upshot of public debates held by citizens. In comparison with the previous conception of public spheres, proposed in Structural Transformations of the Public Sphere21, Habermas changes his view on the kinds of arguments that may be provided in public discourse. This change, importantly, is strongly connected with the conceptual elaboration of the differences between values, norms and interests22. Therefore, it shall be stressed that the three kinds of arguments may be formulated in 18 Jürgen Habermas, The Inclusion of the Other. Studies in Political Theory, Ciaran Cronin, Pablo De Greiff (eds.), Polity, Cambridge, 2002, p. 215. 19 Jürgen Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg, The MIT Press, Cambridge, Massachusetts, 1999, p. 128. 20 Jürgen Habermas, “Postscript to Between Facts and Norms”, op. cit., 144. 21 Jürgen Habermas, The Structural Transformation of the Public Sphere. An Inquiry into a Category of Bourgeois Society, trans. Thomas Burger, Frederick Lawrence, The MIT Press, Cambridge, 1999. 22 See Chapter III of this book.

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public spheres that account for the legitimation of the law, namely, ‘pragmatic, ethical, and moral reasons considerations rightly play a role’23. These three kinds of argumentations are related to interests, to interpretations of the good and accordingly to the good life, and they are related to political justice and hence to moral issues in general. Since the aim of the application of the principle of discourse (D) is basically to do justice to the requirement for autonomy (private as well as public), it is revealed to be an insufficient means for discursively solving moral issues. As Habermas highlights, ‘impartiality in judging cannot be replaced by autonomy in will formation’24; otherwise, the consensus on, that is, recognition of, the validity of normative claims would be equivocated with fair compromise. Thus, in the procedures of saturation, the legal code in the normative contents, the discourse rules must be supplemented by the argumentative principium of universalisation (U). This principium is designed so as to meet the requirement of impartiality which tests norms-candidates on whether they ‘can count on universal assent because they perceptibility embody an interest common to all affected’25 or not. Following Habermas, it must be stressed now that ‘practical discourse is not a procedure for generating justified norms but a procedure for testing the validity of norms that are being proposed and hypothetically considered for adoption’26. I contend, however, that this means precisely that Habermas delivers a procedure for constructing legitimised common action norms in the very analogical sense that the Kantian categorical imperative provides a procedure for constructing (literally, for testing) maxims, due to the requirement of their compliance with the universal law. Thus, it seems that Habermas argues for a similar procedure, but applied to a different domain; hence, the above quotation does not concern the construction of justified norms but the construction of legitimised norms, due to a public justification that accounts for three kinds of arguments. Therefore, the procedures for testing the validity of the norms-candidates must imply here, quite similarly, the public construction of norms. The latter is founded on providing the best arguments in favour of or against certain formulations of

23 Pablo De Greiff, “Habermas on Nationalism and Cosmopolitanism”, Ratio Juris, Vol. 15, No. 4, December 2002 (pp. 418–438), here p. 422. 24 Jürgen Habermas, Moral Consciousness and Communicative Action, trans. Christian Lenhardt, Shierry Weber Nicholsen, The MIT Press, Cambridge, Massachusetts, 1999, p. 72. 25 Ibidem, p. 65. 26 Ibidem, p. 103; see also p. 122.

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problem-solving that run through the process of such an abstraction that, finally, these formulations, supported by the said abstracted arguments, may serve as norms-candidates, in fact. Additionally, Habermas highlights further—unlike John Rawls, but similar to Immanuel Kant—‘with moral questions, humanity or a presupposed republic of world citizens constitutes the reference system for justifying regulations that lie in the equal interest of all’27. As this statement indicates, with regard to the principle (U) as a moral-normative constraint imposed on the processes of saturation of the legal code in the normative content (and testing normscandidates), it should be acknowledged that taking into account solely the citizens of a polity in question misses the requirement of unconditional impartiality characteristic of the moral reflection, and it leads to confusion between the moral point of view and the ethical perspective28. Pablo De Greiff aptly elucidates the pedigree of the abovementioned three kinds of arguments used in public justifications: ‘following Kant, Habermas holds that what makes moral norms distinctive is that they raise a universal validity claim, and so differ both from pragmatic discourses, the validity of whose conclusions—Kant’s “imperatives of skill”—is contingent on the commonality of particular ends, as well as from ethical discourses, whose claims—“counsels of prudence”—are valid only for members of a community which already shares a tradition and its strong evaluation’29. Consequently, the institutionalisation of the discourse rules, which are later on saturated by the procedurally elaborated—due to the principium of universalisation (U)—understandings of the collective interests, collective self-understanding and understanding of political justice, must always be in compliance with the basic moral insights, and, therefore, arguments from justice ‘trump’ all other ones, which is crucial for understanding the concept of political morality, investigated in Chapter III. Furthermore, the institutionalisation of discourse rules, due to its underpinning, namely, due to the co-originality thesis that states that the rule of law should proceed hand-in-hand with the principle of democracy, results in the 27 Jürgen Habermas, Between Facts and Norms, op. cit., p. 108. 28 And it is this very charge that Habermas lays against Rawls when he says that ‘Rawls’s construction of an overlapping consensus shifts the accent from the Kantian concept of autonomy to something like ethical-existential self-determination: a person is free when he accepts authorship for his own life’; Habermas Jürgen, The Inclusion of the Other, op. cit., p. 100. See also Rainer Forst, Contexts of Justice. Political Philosophy Beyond Liberalism and Communitarianism, trans. John M. M. Farell, University of California Press, Berkeley, Los Angeles, London, 2002, p. 156. 29 Pablo De Greiff, “Habermas on Nationalism and Cosmopolitanism”, Ratio Juris, Vol. 15, No. 4, December 2002 (pp. 418–438), here p. 422; emphasis added by KMC.

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code of law that may be understood as both the laws of law-making as well as basic rights, that is, as constitutional interpretations of the universalisable normative claims. The latter, with reference to the wider circle of participants in the enterprise of interpreting those universalisable normative claims, are called human rights. Taking this for granted, Habermas concludes that ‘human rights institutionalize the communicative conditions for a reasonable will-formation’30. The main idea here is that the institutionalisation of the discourse rules must protect both private autonomy and public autonomy, due to the co-originality thesis. Therefore, paradoxically, in comparison with the former proposals for how to understand human rights, Habermas claims that only those rights that always also protect the democratic conditions of the saturation of these rights in the normative content may be appropriately called human rights. In this sense, human rights, according to Habermas, ‘institutionalize the communicative conditions for a reasonable willformation’. Human rights are supposed to express norms whereby the impartiality of the judgments and decisions based on such rights is never overruled by the collectivity (that is, the collective self-understanding or collective interests), from which follows the requirement of protecting each citizen as free and equal to any other. The concept of discourse is explicable in terms of the discourse principle (D) (or, in other words, in the discourse rules) and the complementary ‘principle of universalization (U) as a bridging principle that makes agreement in moral argumentation possible’31, because it is oriented towards the said impartiality of normative claims. Discourse, then, is a specific kind of communicative action; ‘it reveals itself to be a reflective form of action oriented toward reaching an understanding’32. The most important moments of this reflectivity (according to this perspective) are as follows: a) The distinction between generalisability and abstraction: The latter procedure is specifically characteristic of normative (moral) claims testing, that is, the testing 30 Jürgen Habermas, The Postnational Constellation. Political Essays, trans. Max Pensky, The MIT Press, Cambridge, Massachusetts, 2001, p. 117. 31 Jürgen Habermas, Moral Consciousness and Communicative Action, op. cit., p. 57. 32 Ibidem, p. 100. He further develops this as follows: ‘Discourse ethics is compatible with this [Kohlberg’s] constructivist notion of learning [as a ‘creative reorganization of an existing cognitive inventory that is inadequate to the task of handling certain persistent problems’] in that it conceives discursive will formation (and argumentation in general) as a reflexive form of communicative action and also in that it postulates a change of attitude for the transition from action to discourse’; ibidem, p. 125.

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of validity claims oriented towards justice. Thus, besides interests that are candidates for generalisations, there are also ‘evaluative questions present themselves at the most general level as issues of the good life (or of self-realization); they are accessible to rational discussion only within the unproblematic horizon of a concrete historical form of life or the conduct of an individual life’33. b) This distinction between the kinds of arguments is made due to the abovementioned analogy to the three Kantian imperatives. From this very analogy follows the notion that there are three kinds of arguments that may be used in discourse: moral ones, politico-ethical ones and arguments from (generalisable) interests34. In addition, it may be stated that the three kinds of arguments organise or focus diverse publics. c) Essentially, in the case of testing the moral (hypothetical) norms-candidates, the triple Kantian abstraction comes into play as well. I think here of the following35: (i) The abstraction from (a posteriori) motives of action, namely, those related to the considered situation; (ii) ‘abstraction from the particular situation’; (iii) ‘abstraction from existing institutions and forms of life’ (in which is embedded the one who asks about how s/he should act in a given situation). Specifically, what is meant here are the following reflexive operations36: (i) abstraction and individualisation as the distinction between autonomy and heteronomy; 33 Ibidem, p. 108. 34 They are more precisely elaborated in Chapter IV, Between Facts and Norms, op. cit. 35 I refer in this reconstruction of the triple Kantian abstraction to Jürgen Habermas, Justification and Application. Remarks on Discourse Ethics, trans. C. P. Cronin, The MIT Press, Cambridge, Massachusetts, 2001, p. 118. 36 Jürgen Habermas, “Moral Development and Ego Identity”, in: Communication and the Evolution of Society, trans. Th. McCarthy, Beacon Press, Boston, 1979, pp. 83–87. I reconstruct the reflexive operations in accordance with the order of the triple abstraction; however, on page 86 (ibidem), Habermas states that, accordingly to Lawrence Kohlberg’s stages of moral development, ‘the actor must be able to understand and follow the individual behavioral expectations of another (level I); he must be able to understand and to follow (or to deviate from) reflexive behavioral expectations—roles and norms (level II); finally he must be able to understand and apply reflexive norms (level III)’; and on the very next page, he summarises it as follows: ‘role qualifications can be placed in a certain hierarchy from the formal viewpoints of (a) reflexivity, (b) abstraction and differentiation, and (c) generalization’.

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(ii) reflection as understanding and applying reflexive norms or principles; (iii) generalisation. In other words, these advanced operations, characteristic of the post-conventional level of individual moral development as well as societal moral development, are required in order to formulate the best reasons in favour of—or against—one of the competing norms. These reflexive operations also reveal the mechanism, or procedures, within which the transformations of interests, value-orientations and normative convictions proceed. The activity of forming norms-candidates involves these operations, whereby the best available reasons are elaborated and the norm-candidate is supposed to do them justice. As an incredibly important consequence, if the activity of forming the norms-candidates does not follow these operations, then the best reasons are not available to the participants in a discourse. d) The participants take a hypothetical attitude when the discourse is held, because, finally, ‘a decentred understanding of the world’37 can be assigned or attributed to the participants in the discourse after the above-presented reflexive operations have been employed. The conclusions that these investigations point to are as follows. First, in the Habermasian thought, the principles of discourse complemented by the principium of universalisation (U) reveal themselves to be a very peculiar but essential tool kit, notably, as ‘the rules necessary for any argumentation game to work; if one is to argue at all, there are no substitutes. (…) There are no alternatives to these rules of argumentation (…) [and] the participants must have accepted them as a ‘fact of reason’ in setting out to argue’38. Second, it may be stated, therefore, with regard to the post-conventional level of law development, that the rules of discourse together with the rule of argumentation replace the role previously cast by the concept of the laws of nature or, more currently discussed on this contractarian approach, the rules of rational choice39. They are deemed commonly

37 Jürgen Habermas, Moral Consciousness and Communicative Action, op. cit., p. 138. Jürgen Habermas, “Reply to Symposium Participants, Benjamin N. Cardozo School of Law”, op. cit., pp. 386–387. 38 Jürgen Habermas, Moral Consciousness and Communicative Action, op. cit., p. 95. 39 Compare Jean Hampton, The Intrinsic Worth of Persons. Contractarianism in Moral and Political Philosophy, op. cit.

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valid—as the higher-order rules that provide a template for the norms saturation in normative content—and thus, they always also refer to the universal normative framework (they are commonly valid and the most profound). Third, Habermas presumes that the abstract laws of law-making should embrace not solely fundamental political rights but also the rights shaping horizontal relations, namely, rights that socialise citizens-consonants in this contractarian-discursive project. This means that for Habermas, two moments—leaving the pre-political state and leaving the pre-social state (of nature)—must come hand-in-hand, and this seems to be the second reading of the co-originality thesis expressed in the code of law-making. Political individualisation, in other words, may proceed only in the way of socialisation, which seems to be a lesson from Hegel, but, in my opinion, initiated by Hobbes40. Fourth, as the processes of saturating the legal code in the normative substance proceed—within the normative framework established by the very legal code consisting of the institutionalised discourse rules and then complemented by the principium of universalisation (U) that does justice to the requirement of impartiality, that is, the principium imposed on the very procedures of the saturation of laws in the normative content—so, too, do the interpretations of the universalisable normative claims (in the sense of human rights) come always into play. These interpretations of the universalisable normative claims, at the level of the constitution of a certain democratic polity, are called basic rights41. 40 Therefore, Habermas cannot agree on the role of the basic rights prescribed by Dworkin—they cannot be the only and simply a means against a government. The point is that Dworkin seems to follow the Lockean model of law (Compare Ulrich K. Preuss, “Communicative Power and the Concept of Law”, in: Michael Rosenfeld, Andrew Arato (eds.), Habermas on Law and Democracy. Critical Exchanges, University of California Press, Berkeley, Los Angeles, London, 1998, p. 325), in which the socialisation (and its outcomes) of citizens is already presumed in the Second Treatise on Government. 41 David Ingram seems to capture the core Habermasian ideas in the similar vein: ‘Like Kelsen, Habermas grounds legal validity in a basic norm. Unlike Kelsen’s Grundnorm, Habermas’ principle of discourse (D) designates a norm that informs only those modern legal systems whose members are permitted the freedom to pursue individual aims. (…) Justification of such claims [Geltungsansprüche] here has both a vertical (hierarchical) and a horizontal (symmetrical) structure. The substantive arguments persons present to each other must be capable of being made as ascending levels of generality and depth. Most importantly, within a post-conventional moral setting persons will typically suppose some higher normative principles (such as human rights) in justifying the permissibility or necessity of their actions. A principle of

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B) Hypothetical (pre-political or pre-social) State of Nature Crucially for the following analysis, I share Seyla Benhabib’s view, that communicative action, especially its reflective form, called discourse, comes into play in public spheres basically because ‘the theory of communicative ethics is primarily concerned with norms of public institutional life, or with institutional justice’42. In other words, at the centre, between deliberative democracy and a complementary moment of the proceduralist paradigm of law on the other side, one may find the concept of the public sphere. Habermas takes seriously the demand made by Rousseau, that in the consideration dedicated to the normative foundation of a given polity, ‘men [should] being taken as they are and laws as they might be’43. He highlights, therefore, that public spheres, including the political public sphere, are to be understood as systems ‘open to the lifeworld (…), embedded in lifeworld contexts’44. The openness of the political public sphere safeguards the needs, problems, conflicts and diverse claims in anticipation of common legal regulation that the people raise as they actually are, and they are initially worked up due to processes of citizens’ opinion formation. One may notice in that regard that although Habermas gives up delivering a necessary characteristic of a (rational or reasonable) citizen, in order to answer the question of what kinds of common fundamental regulations each citizen may sensibly agree upon, as even contemporary contractarian thinkers used to do, he presumes instead, due to the very presumptions of the discourse theory, that rationality potentials are being released

universalizability (U) thus functions as a kind of foundational basic norm, which follows “abductively”, Habermas believes, from other assumptions regarding rational discourse and communicative interaction’, David Ingram, “Reconciling Positivism and Realism: Kelsen and Habermas on Democracy and Human Rights”, Philosophy & Social Criticism, Vol. 40, No. 3, 2014 (pp. 237–267), here p. 240. 42 Seyla Benhabib, Critique, Norm and Utopia. A Study of the Formulation of Critical Theory, Columbia University Press, New York, 1986, p. 310; public spheres, as such, should instead be regarded as ‘communicative networks’, but not as systems or institutions; compare: Jürgen Habermas, Between Facts and Norms, op. cit., p. 360; Erik O. Eriksen, Jarle Weigård, Understanding Habermas. Communicating Action and Deliberative Democracy, Continuum, New York, London, 2003, p. 186. 43 Jean-Jacques Rousseau, The Social Contract or Principles of Political Right, 1762, translated by G. D. H. Cole, Book I, public domain; http://www.constitution.org/jjr/ socon_01.htm#001. 44 Jürgen Habermas, Between Facts and Norms, op. cit., p. 352.

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in discourses and, for this reason, diverse processes of rationalisation hold on in proceeding, including the sphere of lifeworlds45. In other words, Habermas, as a contemporary post-metaphysical contractarian thinker, does not presume any concept of a rational agent (here, citizen); rather, he introduces incremental processes of rationalisation that proceed as being generated in the public spheres. Moreover, as the communicative structures of public spheres remain open ‘upward’ (towards processes of evolutionary constitutionmaking) and ‘downward’ (towards processes of rationalising lifeworlds), we deal with the post-Hegelian process of advancing rationality that brings into existence what was previously assumed46. In this context, I do not think that one might speak of a vicious circle, but I am convinced, paying heed to the analyses provided in the previous chapter of this book, that there is something important amiss or, at least, waiting for profound rethinking in quite a new fashion. Notably, I refer here to the concept of a lifeworld. This concept was introduced at the beginning of the twentieth century by Edmund Husserl, referring to unproblematic massive presuppositions concerning the world and the human relations within, on the basis of which unproblematic conduct may be pursued. Moreover, the change introduced by the reconceptualised processes of occidental rationalisation, after which even culture becomes self-reflexive and due to this shift the democratic ethos—through which communicative or discursive freedom emerges—puts in question the content of the said concept of lifeworlds. What seems to form an unproblematic presupposition in this context are the overwhelming processes of transformation due to the incremental exercise of discursive freedom. And there is nothing wrong with Habermas’s reconstructive diagnosis, despite the fact that the answer to the question of where people de-embedded in their lifeworlds may seek original, conceptually unmediated yet human relations that serve as a source of a spontaneous awaking impulse for reason. I state that in this highly selfrationalising world, people are becoming de-embedded in their lifeworlds, because the lifeworlds themselves are becoming de-embedded in their space that is, in certain places, recognised as exclusively or especially theirs. A lifeworld without its own space is not a lifeworld—the intimate sphere diminishes and

45 I owe insights in this serious issue to professor Tadeusz Buksiński who dedicated a lot of his time to discussing the problem with me. 46 Compare Manuel Jiménez Redondo, “Acción communicativa y teoría de la razón”, Anules de seminario de Metafísica, No. 30, 1996 (pp. 61–92). Servisio de publicaciones, Universidad Complutense, Madrid.

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thins down—and I doubt if the familiar communicate structures of diverse publics may replace it. From my perspective, this problem is unsettled. As stated, in the Habermasian conception, public spheres are spread between two moments, among which information, opinions, themes, arguments and so forth flow freely. This produces opinion-formation in the so-called unistitutionalised, weak publics and will-formation in the so-called institutionalised strong publics47. In other words, the normative conception of public spheres must also imply institutional constitutionalisation that occurs to form the democratic heart of both legal and horizontal constitutionalisations. The concept of institutional constitutionalisation refers, then, to such institutional settings that enable transformations from opinion- to will-formation. Erik Oddvar Eriksen and Jarle Weigård, who reconstruct Habermasian theory, employing sociological terms, indicate three basic kinds of relationships constituting the civil public sphere, namely, ‘an intimate sphere based on personal emotional bonds within primary group relations (relations of love, friendship and kinship), a voluntary sphere, which is an arena for activity and experience based on membership in secondary groups, and finally, a cultural sphere for the interpretation and formation of opinions’48. The great significance of this revisited, in comparison with The Structural Transformation of The Public Sphere49, approach to public spheres consists of anchoring the ‘foreheads’ of the public spheres already in the lifeworlds and not only in a ‘bourgeois society’50. That seems better able to address, and also deliver 47 See Nancy Fraser, “Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy”, in: Craig Calhoun (ed.), Habermas and the Public Sphere, The MIT Press, Cambridge, Massachusetts, London, pp. 99–142. 48 Erik O. Eriksen, Jarle Weigård, Understanding Habermas, op. cit., p. 186. Compare Habermas’s characteristic of the term lifeworld in Jürgen Habermas, Between Facts and Norms, op. cit., pp. 366–367. 49 Jürgen Habermas, The Structural Transformation of The Public Sphere. An Inquiry into a Category of Bourgeois Society, trans. Thomas Burger with the assistance of Frederick Laurence, The MIT Press, Cambridge, Massachusetts, 1999. 50 Jürgen Habermas, Between Facts and Norms, op. cit., pp. 366–367: ‘The expression of “civil society” has in the meantime taken on a meaning different from that of the “bourgeois society” (bürgerliche Gesellschaft) of the liberal tradition […]. What is meant by “civil society” today, in contrast to its usage in the Marxist tradition, no longer includes the economy as constituted by private law and steered through markets in labor, capital, and commodities. Rather, its institutional core comprises those nongovernmental and noneconomic connections and voluntary associations that anchor the communication structures of the public sphere in the society component of

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the means for, a deepened social criticism and wider social emancipation within a civil society. The importance of this move refers to the acknowledgement that the ‘public use of reason’, in the sense of both the enactment of legitimised common action norms and a reasonable setting of legal and political institutions that enable legitimate decision-making as its outcome, is founded upon the previous recognition of everyone ‘as a “reason-giver” by other “reason-givers”’51 and of the essential underpinning of the sustainment of this kind of recognition in institutionalised discourses, namely, that this recognition must spread, in fact, on the social relations of everydayness as well. Thus, the foreheads become pillars on which holds on, though in a constant building ‘a communicative structure that is related to (…) the social space generated in communicative action’52. Spontaneously running communicative actions, that is, those with no previously set theme, are characterised by the free generation of the social space where transformative processes of ‘filtering and synthesizing’ occur, sharing publicly expressed53 ‘information and points of view’, which result in forming ‘bundles of topically specified public opinions’54. Therefore, as one may see, the novelty of the Habermasian approach to the theoretical reconstruction of public spheres comprises relating them to wild circles as moments of ‘the private life spheres’ instead of sharply cutting the concept of public spheres off from these lifeworlds and simply reserving the term for those who enter into public spheres already as citizens, that is, bourgeois citizens. These wild circles as moments of ‘the private life spheres’ shape ‘the civil-social peripheries’55— or, in other words, outer peripheries—in comparison to the institutionalised and

51 52 53 54 55

lifeworld. Civil society is composed of those more or less spontaneously emergent associations, organizations, and movements that, attuned to how societal problems resonate in the private life spheres, distil and transmit such reactions in amplified form to the public sphere. The core of civil society comprises a network of associations that institutionalizes problem-solving discourses on questions of general interest inside the framework of organized public spheres’. Kenneth Baynes, “Freedom and Recognition in Hegel and Habermas”, Philosophy & Social Criticism, Vol. 28, No. 1, 2002 (pp. 1–17), here p. 5. Jürgen Habermas, Between Facts and Norms, op. cit., p. 360. Ibidem, p. 361: ‘Every encounter in which actors do not just observe each other but take a second-person attitude, reciprocally attributing communicative freedom to each other, unfolds in linguistically constituted public space’. Ibidem, p. 360. Ibidem, p. 381.

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hence strong polyarchial public spheres with their own inner self-governmental peripheries ‘at the edge of the administration’56. This reformulation of the concept of public spheres is inextricably linked to what Eriksen and Weigård quite neatly underline, namely, that ‘Habermas makes a distinction between opinion-formation in public spheres and will-formation in formal political institutions’57. This results in the differentiation of the two diverse in nature moments; however, in my view, they remain complementary, and therefore, both pertain to the concept of public spheres, in fact. That is, the communicative action referring to processes of opinion-formation in the social-civil peripheries, from which the processes of opinion formation stem and then run through diverse kinds of intensity in their institutionalisation—upward will-formation processes that remain at the centre of the political (open) system. However, it must be strongly stressed that the flow is also reversed: of essence to the public power of judgement discussed in Chapter III. The ‘institutional intersections’, as I would like to name them, where opinion- and will-formation meet one another, constitute the very essence of the transformation from the pure communicative action into its more reflexive form, namely, discourse. That provides sound reasons for calling the whole concept the ‘“two-track” model of deliberative democracy’58. This brings about, on the one hand, processes of free and spontaneous opinionformation by citizens in diverse spheres, generated with reference to intimate, voluntary and cultural relations, that proceed through increasingly institutionalised yet still free and voluntary forms of shaping increasingly influential59 opinions upward, to processes of will-formation that proceed due to the discourse rules that are institutionalised in the medium of law and complemented by the principle of argumentation, on the other hand. The incremental institutionalisation of forms of opinion-formation increasingly extorts, at the same time, the transformation of communicative action into its more reflexive form, and thus is supposed to deliver public justifications on the part of those who play public roles and make decisions60 within the whole spectrum of public spheres, up to the strong political public spheres. 56 Ibidem, p. 355. 57 Erik O. Eriksen, Jarle Weigård, Understanding Habermas, op. cit., p. 125. 58 Patrizia Nanz, Europolis. Constitutional Patriotism beyond the Nation-State, Manchester University Press, Manchester, New York, 2006, pp. 35, 39. See also Sarah Sorial, “Habermas, Feminism, and Law: Beyond Equality and Difference?”, Ratio Juris, Vol. 24, No. 1, 2011 (pp. 25–48), here p. 38. 59 Jürgen Habermas, Between Facts and Norms, op. cit., p. 363. 60 Ibidem, pp. 361–362.

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In light of the above statements, the crux of this model of public spheres comprises at least three decisive features: i) Diversity of public spheres. There are always different centres of different degrees of institutionalisation, and thus, of focusing (‘forming bundles of topically specified’) public opinions61, because ‘what is public and what is private—which interests are universal and which are special interests—are not given. There are no objective criteria which tell us that a topic rightfully belongs in one specific sphere; over time there have been vast changes with respect to which problems are regarded as private and which public. The point is rather the rules of communication are different’62. The said difference between the rules of communication refers most of all, in my view, to the degree to which they require critical, hypothetical attitude-taking on the part of the participants in actual discourses. ii) The spontaneous communicative flows of information, subjects/themes and arguments in question that swell from one institutional/organisational centre to another, and, thanks to broadcasting, become resonated by the spontaneous formation of opinions, eventually clash from time to time in controversies,

61 Of course, Nancy Fraser made a hallmark on this viewpoint of public spheres; compare: Nancy Fraser, “Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy”, op. cit. In view of Patrizia Nanz, the previous Habermasian conception of a public sphere assumes ‘that (a) it is exclusively based on rational-critical discourse, which (b) takes place in unitary public realm. Furthermore, it assumes (c) that it is possible for the interlocutors to debate “as if” they were social equals, and (d) that discourse in the public sphere should be limited to discussion about the common good, excluding “private” interests and issues. All these assumptions have been subjected to a concerted critique (..)’, Patrizia Nanz, Europolis, op. cit., p. 36; and in her opinion, ‘Habermas’s revised conception of the public sphere still presupposes a single, overarching public sphere under umbrella of a common liberal political culture and a shared constitutional identity’, ibidem, p. 38. 62 Erik O. Eriksen, Jarle Weigård, Understanding Habermas, op. cit., pp. 190–191. This issue is quite important for Habermas’s argument with Rawls; and as he states on the issue, ‘uncovers one of its [Rawlsian understanding of a public sphere] undesired consequences. This is shown, for example, by the rigid boundary between the political and the nonpublic identities of citizens. According to Rawls, this boundary is set by the basic liberal rights which constrain democratic self-legislation, and with it the sphere of the political, from the beginning, that is, prior to all political will-formation’; Jürgen Habermas, The Inclusion of the Other, op. cit., p. 70.

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thereby igniting more argumentatively diligent debates63. In fact, this last matter refers to the abovementioned change of the rules of communication, notably, into the rules of discourse as a reflective form of communication that starts to extort the more reflexive formulation of arguments (in favour or against) on an issue that remains under public debate. This normative theory of public spheres, founded on the concept of communicative action/discourse, provides a suitable reason for Habermas to claim that ‘the democratic procedure filters arguments and gives legitimacy-producing reasons a privileged chance to come into play’64, at least, in the parliamentary bodies that he indicates. iii) That all results in processes of the public discursive justifications of publicpolitical decisions (here, taken in a wide sense, that is, with regard to the whole political system) that unfold are included within a developed theory of communicative action. Thus, the Habermasian development of communicative and thus legitimate power turns him ‘to the idea of “subjectless” communication in the informal public sphere. He ultimately interprets public opinion as “anonymous” (since it is not located in any particular group of individuals) and as “decentred” within the network of communication itself’65. This subjectless and network-nested communication, in my view, constitutes the structure of the public power of judgement that underpins the public use of reason. Without the public power of judgement, the public use of reason would be at best (happily) just, but not legitimised66. Therefore, public opinion(s) as anonymous and decentred must be understood in terms of communicative and thus subjectless structures that escape control from the part of political authority. Moreover, they themselves are thought to be the source of the communicative power. This is so because public opinions demand the delivery of public justifications of public-political decisions that would be acceptable to as many people as possible (therefore, the discursive formation of arguments is crucial), and in this sense, these public opinions—or, more precisely, communicative structures—form a source of the legitimation of public-political decisions. According to these processes, social power converts

63 64 65 66

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Jürgen Habermas, Between Facts and Norms, op. cit., p. 362. Ibidem, p. 340. Patrizia Nanz, Europolis, op. cit., p. 35. On diverse approaches to justificatory procedures, including the Habermasian proposal, see Glyn Morgan, “European Political Integration and the Need for Justification”, Constellations, Vol. 14, No. 3, 2007 (pp. 332–346), here pp. 336–337.

in the flows within the communicative structures into communicative power. Thus, the significance of these processes relies, on one hand, on transforming the power of pure social pressure that may be socially or culturally mobilised, into communicative power, namely, the power of judgement that demands a discursive elaboration of justifications in order to make them (if possible) publicly acceptable justifications, for, as such, they become ‘converted into administrative power’67. On the other hand, taking into account the idea of the ‘“two-track model” of deliberative democracy’, there is also a top-down perspective to be included in the normative concept of public spheres. From this perspective, ‘the public sphere is a critical institution, which gives citizens an opportunity to assemble in order to hold the power holders accountable for their actions’68. Its reflexive and critical work is Janus-faced—to recall one of Habermas’s most favoured comparisons—as this work refers to the public power of judgement, for which definitional is the double flow of reflection, that is upward (generalisation and abstraction) and downward, in the sense of critically referring to general and abstract concepts and ideas related to everyday affairs. On this approach, it is presumed that in public spheres these matters that citizens bring to light from their lifeworlds are also critically filtered, which constitutes the initial requirement of social emancipation. Importantly, too, the process of filtering citizens’ opinions, initially embedded in their lifeworlds, pushes them towards the cooperative formulation of arguments that may be put forward in support of, or against, different public issues at stake. At the same time—for the sake of elaborating arguments for and/or against public-political decisions—this process of filtering citizens’ opinions also ‘launders’69 the political will/decisions in the flows of public debates. With regard to the dispute held with John Rawls and concerning the epistemic status of public justifications of agreements made in strong publics, this approach to deliberative democracy reveals the free and spontaneous anchoring of willformation in lifeworlds (or in Rawlsian terms, in ‘reasonable comprehensive doctrines’). The normative expectation is that in so doing, through the processes of institutionalising public debates, such public justifications are elaborated that serve as arguments in processes of decision-making in strong (political) public spheres. However, these justifications pertain to an abstract political culture that operates 67 Erik O. Eriksen, Jarle Weigård, Understanding Habermas, op. cit., p. 174. 68 Ibidem, p. 180. 69 Ibidem, p. 190.

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as a ‘neutral mediator’ among different lifeworlds (or, in Rawlsian terms, reasonable comprehensive doctrines) integrating a pluralistic society. Therefore, from the standpoint of deliberative democracy, it can be claimed that these public justifications, though constructed in institutionalised public spheres, still refer in some way to lifeworlds. The very meaning of this procedure is that although their outcomes form the expressions of the public use of reason (the strongly institutionalised), they still have a reference to lifeworlds, because they are the outgrowth of the public power of judgement (the reason that both institutionalises and deinstitutionalises), so they are not devoid of the motivational force; thus, with such public justifications, it becomes possible to reach ‘an agreement motivated by epistemic reasons’70. Now, we are faced with the most crucial issue for understanding the ‘two-track model of deliberative democracy’ as expressed above: where are, in fact, opinionformation processes being converted into will-formation processes? Where are, in other words, epistemic reasons being constructed that also serve as public justifications for political decisions? Where are different lifeworlds or reasonable comprehensive doctrines being converted into the matter of abstract political culture? Where is all of this going on? As Eriksen and Weigård succinctly note, ‘according to Habermas, legitimate political power arises through the interaction between legally institutionalized, discourse arrangements and culturally mobilized public spheres, where the citizens both have the freedom to participate and to refrain from it’71. According to the two-track model of deliberative democracy erected on the conception of public spheres, the processes of legal self-constitutionalisation (processes of constitution-making) ‘clash’ with so-called horizontal constitutionalisation (that is, with incremental processes of the rationalisation of lifeworlds) spurring the ‘institutional constitutionalisation’ that unfolds in the very heart of this story72. The most urgent task at this stage of analysis is to address the meaning and significance of this third kind of constitutionalisation process.

70 Jürgen Habermas, The Inclusion of the Other, op. cit., p. 42. 71 Erik O. Eriksen, Jarle Weigård, Understanding Habermas, op. cit., p. 126; emphasis added by KMC. 72 Compare Tanja Hitzel-Cassagnes, “Discursive Processes in the European Institutional System”, in: John Erik Fossum, Philip Schlesinger, Geir Ove Kværk (eds.) Public Sphere and Civil Society? Transformations of the European Union, ARENA Report No. 2/07.

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First, this problem seems to somehow escape the Habermasian considerations73. In order to talk about such transformations from opinion- to will-formation in a well-grounded way and from the normative point of view, one must realise that they require, as I name them, the specific intersections between these two tracks of communicative action. Institutional intersections here are meant as those institutional arrangements which express the empowerment of citizens in the sense that they found their ability to ‘do things’ in the political public sphere, and also to be the addressees of public concerns74, and this issue forms the main theme of the two-track model of deliberative democracy. In other words, as Massimo La Torre claims, ‘constitution (…) also means the self-understanding of community members and their practice of self-institution, that is of instituting themselves as citizens’75, because in the context of the co-originality thesis that refers to a constitutional democracy taking into normative account the rule of law and the principle of popular sovereignty, ‘constitution in short is the bedrock of legal order, not of the State’76. In these institutional intersections, citizens (individual ones, representatives of different organisations, or representatives of groups of interests, and so forth), are supposed to meet those who make legal and/or political decisions, notably, representatives of the power-holders, according to the triple division of power: representatives of the legislative, executive and judiciary. This normative claim satisfies the concept of ‘the composite character of democratic legitimacy’ formulated by Augustín José Menéndez. He indicates ‘its three components: procedural legitimacy, substantive legitimacy and adjudicative legitimacy’77 that refer, respectively, to processes of decision-making that become reflected in constitutional provisions, the processes of decision-making concerning the current political policies and political goals (that should stay in compliance with the former) and processes and procedures entrenching public accountability and 73 Denis Vitale writes in a very similar spirit, stressing that Habermas does not pay sufficient attention to institutions themselves, “Between Deliberative and Participatory Democracy. A Contribution to Habermas”, Philosophy & Social Criticism, Vol. 32, No. 6, 2006 (pp. 739–766), here pp. 755–756. 74 Compare Josiah Ober, “The Original Meaning of ‘Democracy’: Capacity to Do Things, Not Majority Rule”, Constellations, Vol. 15, No. 1, 2008 (pp. 3–9). 75 Massimo La Torre, Constitutionalism and Legal Reasoning, Springer, Dordrecht, 2007, p. 6. 76 Ibidem, p. 33. 77 Augustín José Menéndez, “The European Democratic Challenge: The Forging of Supranational ‘Volonté Générale’”, European Law Journal, Vol. 15, No. 3, May 2008 (pp. 277–308), here p. 283ff.

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responsiveness when choosing the judges and monitoring the exercise of their power of discretion. In addition, as Tanja Hitzel-Cassagnes argues, ‘legitimate processes of justification (…) have to meet two sets of normative criteria. (…) Such processes have to be essentially discursive and inclusive: a reciprocal game of reason-giving and reason-taking, which is open for contestation and revision has to be established. (…) Along these lines, constitutionalisation can be regarded as legitimate only if it is able to meet normative standards of deliberation, but, in order to realise these normative standards, processes of justification have to be embedded in an institutional structure which is capable of embodying these principles and of ensuring the normative acceptability of deliberative outcomes’78. This means that all three components of the composite concept of democratic legitimacy (procedural, substantive and adjudicative) have to meet the said two criteria referring to the processes of their performance, namely, inclusiveness and discursiveness, which, on their part, ‘have to be embedded in an institutional structure’. With that regard, the concept of institutional intersections reveals itself to be crucial for the theory of deliberative democracy, for at least three reasons that underpin this concept. a) Appropriately, that is, discursively, designed ‘institutional intersections’ between citizens’ opinions and administrative powers’ opinions should enable the construction of public justifications, providing the reasons that influence, in the sense of shaping, legal-political decisions, if the latter are to be legitimised. On the normative approach, the normative content of these legal-political decisions should result from justifications elaborated and delivered in discursively designed institutional procedures, that is, in institutional intersections that are supposed to contribute in formulating constitutional provisions, or in parliamentary decisions, or in establishing current policies (according to the normative framework enacted by the former), and also in processes and procedures determining adjudicative legitimacy. b) Institutional intersections are supposed to create possibilities for discursive transformations of opinions and formations of reasons due to the idea of communicative power. The concept of institutional intersections addresses

78 Tanja Hitzel-Cassagnes, “Are We Beyond Sovereignty? The Sovereignty of Process and Democratic Legitimacy of the European Union”, in: Augustín José Menéndez, John Erik Fossum (eds.), Law and Democracy in Neil MacCormick’s Legal and Political Philosophy, The Post-Sovereign Constellation, Springer, Law and Philosophy Library, Vol. 93, Dordrecht, Heidelberg, London, New York, 2011, pp. 150–151.

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the problem of such an institutional design of public deliberations that during these deliberations, it would be possible—drawing on discourse rules and the principle of argumentation—to transform epistemic reasons, initially anchored in lifeworlds, but discursively worked up in public, to transform them into the matter of an abstract political culture understood in terms of a neutral mediator among different forms of life (or, different comprehensive doctrines). Therefore, what occurs is the most crucial moment in the idea of the ‘two-track model of deliberative democracy’. These are precisely those ‘institutional intersections’ where the construction of public justifications is made. The public power of judgement operates here as a generator of epistemic reasons for legitimate political decision-making, that is, for the public use of reason. Crucially, it emerges as the discursive transformation of arguments anchored in lifeworlds into public justifications that would be able to integrate citizens beyond their loyalties to particular lifeworlds, under the umbrella of the ideals of general political culture and under the more abstract terms of common action norms79. c) As a result, in the core of deliberative democracy, there are at least three sorts of institutional intersections to be revealed, in my opinion. (i) First, there are public consultations that take place during the preparations of bills; here also, public hearings come to the fore, but may be questioned, as they do not meet discursive requirements of institutional settings80. The latter may be, of course, correlated with other forms of public debates related to public consultations, however, these forms of public consultations are not available to all citizens (even with regard to the institutions of public hearing there can

79 Compare Jürgen Habermas, Time of Transitions, op. cit., p. 102: ‘In complex societies, democratic legitimacy results from the interplay of institutionalized consultation and decision-making processes, on the one hand, and informal public processes of communication in which opinions are formed via the mass media, on the other. In constitutional democracies, the infrastructure of the public sphere ideally plays the role of transforming problems of concern to society as a whole into the focal topics of discourses so that citizens have an opportunity to relate simultaneously to the same issues in similar terms, and hence to take affirmative or negative stances on the associated controversies’. 80 Compare Piotr W. Juchacz, “Public Hearing: On the Dangers of Adversarial Participation”, in: Bartosz Wojciechowski, Piotr W. Juchacz, Karolina M. Cern (eds.), Legal Rules, Moral Norms and Democratic Principles, Peter Lang Verlag, Frankfurt am Main, 2013, pp. 238–240.

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be distinguished three circles of participation and influence81). (ii) Second, there are diverse forms of public consultations with reference to an executive, including public juries. (iii) Third, there is an institution of a jury in the relationship to the judiciary, whose institution is in need, in my view, of serious rethinking and reformulation in order to do justice to adjudicative legitimacy; and thus this is a serious challenge to judiciary’s discretion on all kinds of judicial adjudication82. As rightly states Menéndez ‘the guardianship of a democratic constitution is always open-ended process, in which it is We the People and not We the Court that has the last word’83 and that should be rethought with regard to the adjudication as well. The closer examination of some of these intersections indicates, with regard to the leading idea of constructing public justifications in institutional intersections, that they impose the requirement of a certain kind of institutional autonomy84 that supports the self-reflexivity of institutions, providing the framework for the said intersections. Here, I would like to indicate a certain cluster of problems resulting from Piotr W. Juchacz’s findings: civic participation may introduce better solutions than those presented at the beginning of consultations by office holders. However, in order to make this happen, the institutional framework must be open for such a possibility in terms of institutional settings. Otherwise, institutions tend to dodge 81 Ibidem, pp. 245–249. 82 Richard Bellamy, Political Constitutionalism. A Republican Defence of Constitutionality of Democracy, Cambridge University Press, Cambridge, 2007, pp. 90–91: ‘The need to keep open the possibility of democratic review seems particularly important when one remembers that the constitutions of many democracies have excluded significant categories of people from citizenship, notably women and those without property, and placed severe limits on the exercise of the popular will, such as the indirect election of representatives’. 83 Augustín José Menéndez, “A Proportionate Constitution? Economic Freedoms, Substantial Constitutional Choices and Dérapages in European Union Law”, in: Edoardo Chiti, Augustín José Menéndez, Pedro Gustavo Teixeira (eds.), The European Rescue of the European Union? The Existential Crisis of the European Political Project, ARENA Report No 3/12, RECON Report No 19, p. 79; available at http://www.reconproject.eu/ projectweb/portalproject/RECONReports.html. 84 Johan P. Olsen, Governing Through Institution Building. Institutional Theory and Recent European Experiments in democratic Organization, Oxford University Press, 2010; Johan P. Olsen, Europe in Search of Political Order. An Institutional Perspective on Unity/Diversity, Citizens/Their Helpers, Democratic Design/Historical Drift and the Co-existence of Orders, Oxford University Press, New York, 2007.

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everything that hinders maximising utilities85, because they are accountable for the outcomes. In other words, institutional design tailored for effective outcomes closes the window on the legitimating and transformative processes down86. Second, the actual institutional intersections’ design is hardly ever thought of as meeting the requirements of discourse or deliberation and of those imposed by the two-track model of deliberative democracy on public communication. Thus, subsequent to actual institutional intersections’ proceedings, the collective construction of public justifications hardly ever occurs. Third, there does not seem to be a sufficient procedural mechanism for ensuring that office holders remain responsible for taking into account public justifications (or, at least, for taking into account public opinions delivered in different quasi-institutional intersections)87. At this point in the analysis, a cluster of fundamental questions may be posed. (i) The previous investigations show that institutional constitutionalisation— and thus institutional intersections—form the kernel of deliberative democracy in Habermas’s theory. They form the kernel because they should transform88 citizens’ opinions into citizens’ will. However, do there exist such institutional intersections in which this actually happens? As long as these institutional intersections are not taken seriously by power-holders, normative requirements of deliberative democracy are not met. (ii) Diligently responding to the first question has little to do (though not nothing) with statistics. The fact that certain public consultations of whatever sort take place is not important; what is important is their meaning for the processes of decision-making with regard to the topic of these consultations. In what sense, and to what degree, should these institutional intersections (public consultations) matter in the further processes of preparing provisions and/or bills and so forth? To what extent should it be binding for decision-makers? What commissions, due to what procedures, explicate the transformations of the matter of initial provisions, bills and so forth with regard to the expressions of citizens’ opinions in such 85 Piotr W. Juchacz, “O nadziejach i trudnościach związanych z partycypacją obywatelską” [On hopes and difficulties related to a civic participation], in: Piotr Orlik, Krzysztof Przybyszewski (eds.), Filozofia a sfera publiczna [Philosophy and the public sphere], Wydawnictwo Instytutu Filozofii UAM, Poznań, 2012. 86 Johan P. Olsen, Governing Through Institution Building, op. cit.; Johan P. Olsen, Europe in Search of Political Order, op. cit. 87 Piotr W. Juchacz, “Public Hearing: On the Dangers of Adversarial Participation”, op. cit., pp. 242–244. 88 Glyn Morgan, “European Political Integration and the Need for Justification”, op. cit., p. 337.

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institutional intersections? What kind of specialists—if only specialists—should assist in rewriting the initial legal project, due to the institutional intersections? (iii) If the public justifications provided in institutional intersections should influence, in the sense of shaping, the legal-practical decisions as expressions of citizens’ will-formation, then one may rightly ask about the correlations between discourse rules (together with the principium of argumentation) and the forms of their institutionalisation in diverse institutional settings. If discourse rules together with the principium of argumentation (universalisation) provide enabling conditions for constructing public justifications (and founded on them common action norms), in the sense that if these conditions are met, then the common action norms founded on these justifications are legitimate (or rather, because, here, the construction takes the form of testing, the common action norms do justice to/ stay in compliance with these justifications), then what institutional intersections would best fit—due to the epistemic background—these requirements? (iv) As the addressing institutional intersections seem to become increasingly complicated, involving abstract procedures, one may also pose the following question. Should citizens and/or office holders be especially prepared for taking in institutional intersections, within which, on the grounds of arguments of interests, values and norms are (or rather, should be) constructed through the procedures of generalisation and abstraction of common action norms? Plainly stated, I endorse the idea of the public construction of justifications, due to which common action norms are constructed (or tested), but I also believe that the appropriate procedures are in need of careful formulation, and all citizens (including office-holders who are who they are because they are citizens) are in need of civic/democratic education to entrench in them and enable them to develop appropriate democratic-discursive competencies. Otherwise, those who are better educated may take advantage of those who are less educated—which does not entail that the bettereducated are right, because rightness indicates impartiality, not winning. Interestingly, imposing the criteria of inclusiveness and discursiveness on the processes of procedural, substantive and adjudicative legitimation leads, as argues Hitzel-Cassagnes, drawing on Kant’s philosophy of law, to the statement that ‘institutional orders and legal systems are provisional in nature in order to preserve the idea of progress’89. This provisionality of legal systems and orders 89 Tanja Hitzel-Cassagnes, “Are We Beyond Sovereignty? The Sovereignty of Process and Democratic Legitimacy of the European Union”, op. cit., p. 155.

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is perceived here as their responsiveness to the processes and outcomes of democratic legitimation. Legal systems and orders are supposed to be provisional as long as, and to the very extent that, this term is employed to buttress the selfreflexivity of the legal-political institutions responding to the requirements of the (incremental) inclusion and discursiveness imposed on them. Consequently, meeting the said normative requirements on the part of the composite character of democratic legitimacy results in understanding law as law-in-themaking. In other words, taking citizens seriously on fair and equal terms results in changing the paradigm of law, at least with regard to the EU, and acknowledging that the law of a democratic constitutional polity is essentially in-the-making, as it expresses the will of the discussion within the democratic polity. And to make true these claims that are characteristic of a constitutional democracy, it is necessary to focus both investigations and institutional engagement on the legal-political institutions questioning the normative principles that they actually meet, in order to enable institutional intersections, as the very heart of the two-track model of deliberative democracy. Hence, this is both a theoretical and a practical challenge. In addition, there is still a serious question left that addresses administrative inner peripheries, namely, the self-governmental institutions: how deeply and profoundly is (and should be) an impact exerted on the society by the intersections of opinion- and will-formation that occur in these self-governmental institutions? Furthermore, to what degree do public institutions in general work as ‘laundries’ of will-formation processes or as ‘filters’ of opinion-formation processes, and to what degree do they work as generators of public spheres90? * It must be clearly stated that the second (post-bourgeois) conception of public spheres presented by Habermas is by no means tailored to handle just—to employ Martin Heidegger’s terms—the idle talk that Heidegger criticises in Being and Time. On the contrary, though in some respects, Habermas undertakes Heidegger’s investigations on everydayness and, within the normative framework, reorients them, first, into the settlement of the original framework that in Habermas’s 90 Tadeusz Buksiński indicates this problem in Publiczne sfery i religie [Public spheres and religions], Wydawnictwo Naukowe Instytutu Filozofii UAM, Poznań, 2011. On the problem of a dominant, within the Polish peripheries of a strong public sphere, managerial model of self-government, see: Piotr W. Juchacz, “On the Post-Schumpeterian ‘Competitive Managerial Model of Local Democracy’ as Perceived by the Elites of the Local Government of Wielkoposka”, in: Tadeusz Buksiński (ed.), Democracy in Western and Post-Communist Countries, Peter Lang Verlag, Frankfurt am Main, 2009.

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conception springs from the communicative action91 and, second, the necessary overcoming of subject-related structures that generate meanings and are soaked in an irreducible first-person position-taking, which Habermas does by means of subjectless communicative structures of weak public spheres. Interestingly, all of this provides robust arguments for interpreting Habermasian thought as pertaining to contractarian reflections. Habermas redefines the first theoretical element, namely, the state of nature, postulating that ‘participants who thus far were engaged in inward reflection, focused on a kind of philosophical clarification, must step out from behind the veil of empirical ignorance and perceive what in general must be regulated under the given historical circumstances and which rights are necessary for dealing with these matters in need of regulations’92. This postulate of stepping out from the (Rawlsian) veil of ignorance transforms the hypothetical momentum of considerations concerning, to reiterate, (a) the descriptive element which discerns what people are like before they engage in social and political relations and settings, and (b) the prescriptive element that questions what may be comprehended as the best laws and the best order of the society for the people taken as they are. These two moments are, then, transferred to, or rather, replaced by, the real discussions held in public spheres by the citizens facing actual problems with regard to moral dilemmas, conflicts of interest and diversity of preferences. The hypothetical situation gives way, in fact, to communicative structures, within which public debates forming public opinions run—till the flows of these debates reach a strong political public, where the will-formation and decision-making take place. According to the analyses of the Habermasian conception of public spheres, I contend that in his contractual proposal, the following changes are introduced. Instead of compiling the abstract characteristic of those who are supposed to enter into a social contract, in this proposal, one deals with the practices of those who are supposed to participate in the (public) processes of reaching an understanding. Therefore, what matters most is not the question about what the people are like but the questions who and how may participate in public deliberations, notably, in institutional intersections, in which what is being addressed is what kinds of real problems matter for citizens and how to solve them. Hence, what constructing public justifications (pros and cons) for certain legal-political 91 Jürgen Habermas, The Theory of Communicative Action, op. cit. 92 Jürgen Habermas, “Constitutional Democracy. A Paradoxical Union of Contradictory Principles?”, Political Theory, Vol. 29, No. 6, December 2001 (pp. 766–781), here pp. 777–778.

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decisions rooted in the given historical circumstances actually means should be critically addressed. In fact, the hypothetical element of the contractarian paradigm is shifted from the pre-political or pre-social momentum, that is, from the concept of the state of nature or the original position, into an attitude—the hypothetical attitude93—of the participants in institutionalised public spheres, in particular, of the participants in discourses that lead to an understanding. This hypothetical attitude is revealed by Habermas as definitional for moral reflection, when one adopts a generalised perspective of everyone and all others94. The hypothetical attitude implies a decentred understanding of the world95, which enables abstract considerations of the norm-candidates in question as they become, due to this procedure, decontextualised96. In discourse, the participants adopt a hypothetical attitude and therefore no ‘state of nature’ nor ‘veil of ignorance’ is needed to transform a subject from a participant in the lifeworld into a rational and distanced observer characterised by the ‘fully decentred understanding of the world’97, from within which the social currency of norms as well as institutional settings are put in question and subjected to public argumentation. As one may see now, the idea of a post-conventional stage of the development of law exists ‘in reference to the social world, [of] a moralization of existing norms’98. Now, we come to the most urgent problem that the Habermasian proposal must overcome. In previous contractarian approaches, the hypothetical situation of the state of nature—or the original position—used to settle those kinds of reasons that would support a social contract as well as the legal-political design implied by those reasons. Taking into account the double structure of the hypothetical situation (its descriptive and prescriptive phases) leads to a statement that only those reasons would enter into foundational debates, which are already anchored in the lifeworlds’ structures (or in reasonable comprehensive doctrines), because exclusively they could be revealed while questioning human nature (in the descriptive phase of the procedure of 93 Jürgen Habermas, Moral Consciousness and Communicative Action, op. cit., p. 165; p. 125: ‘The participants in argumentation adopt a hypothetical attitude to controversial validity claims. The validity of a contested norm is put in abeyance when practical discourse begins’. 94 Jürgen Habermas, The Inclusion of the Other, op. cit., pp. 33, 42–43. 95 Jürgen Habermas, The Theory of Communicative Action, Volume I, op. cit., p. 69 ff.; Jürgen Habermas, Moral Consciousness and Communicative Action, op. cit., p. 8. 96 Jürgen Habermas, Moral Consciousness and Communicative Action, op. cit., p. 179. 97 Ibidem, p. 161. 98 Ibidem, p. 156; see also p. 177.

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conceptually capturing the state of nature). In other words, no transformation of reasons could be taken into account. It occurs, as a result, that in previous contractarian approaches, there have always been at stake only arguments of rational egoists (from interests and/or private conceptions of the good) determining ‘the generalized notion of the contract derived from private law’99. Accordingly, those egoists would perhaps cooperate with one another, albeit always on uncertain grounds, with regard to which consensus would be easily confused with compromise. Precisely, the generalised notion of the social contract that is derived from private law is under Habermas’s constant and massive critical fire, as he insists—thus putting forward this type of consideration on the law, namely, at the post-conventional level—that ‘reasonable citizens cannot be expected to develop an overlapping consensus so long as they are prevented from jointly adopting a moral point of view independent of, and prior to, the various perspectives they individually adopt from within each of their comprehensive doctrines’100. Moreover, Habermas seems to intend to demonstrate, in his discourse theory applied to a democratic society, that adopting the moral point of view comes into play quite commonly in a reflexive kind of culture, whose characteristic feature recalls the community of justification and reason-givers, and then, when the public is constructing justifications concerning political-public decisions, that is, in normative solutions made in strong publics101. Therefore, both moments presume transformations of opinions as learning processes. But one may doubt if it actually runs like this. Naturally, there is a great difference between Habermasian thought and the former contractarian theories. In modern reflections of this sort, the general nature of the yet non-socialised human being has been investigated; in the Rawlsian “original position”, there is an appropriate equivalent called the veil of (empirical) ignorance which cuts off—from the discussions considering the basic principles and institutional settings of the well-ordered society—any information related to social structures (the social positions of those involved) and processes of socialisation; that is, references to the given historical circumstances are eliminated. In contrast to this theoretical template, in the Habermasian proposal, the real effects of 99 Jürgen Habermas, The Inclusion of the Other, op. cit., p. 15. In this context, Eva Erman notices that ‘both Kantian and social contract theories thus remain prisoners of a subject-object world in which the subject cannot break loose from monological reasoning via a bridge between the ‘I’ and the “other”’; Eva Erman, “Reconciling Communicative Action and Recognition. Thickening the ‘Inter’ of Intersubjectivity”, Philosophy & Social Criticism, Vol. 32, No. 3, 2006 (pp. 377–400), here p. 380. 100 Jürgen Habermas, The Inclusion of the Other, op. cit., p. 77. 101 Ibidem, p. 68; also p. 35.

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processes of socialisation come into play as a basis for the possibility of reaching an understanding that would motivate action-taking. As he notes, ‘the participants [in discourse] can only draw on those features of a common practice they already currently share’102, and therefore, an understanding—in the sense of an agreement—must be formulated in the processes of constructing public justifications in discursively designed public debates. On the other hand, in these processes of reaching an understanding that lead from opinion-formation through constructing public justifications, and then to will-formation, all problems raised in relation to lifeworlds as well as all problems raised in relation to basic rights are put under the fire of argumentative debates. This ‘two-track model of deliberative democracy’ may work with regard to two principles—of discourse (D) and of argumentation (U)—which makes that ‘the moral point of view is already implicit in the socio-ontological constitution of the public practice of argumentation, comprising the complex relations of mutual recognition that participants in rational discourse “must” accept (in the sense of weak transcendental necessity)’103.

C) Social Contract—a Process Not an Act The conception of public spheres, based on the subjectless communicative structures and supported by discourses, largely determines the idea of the social contract. Specifically, it transforms the concept of the act of entering into the political state into the concept of ongoing processes of democratic self-reflective constitutionalisation, which is supposed to proceed at the three levels at the same time: at the level of the legal system as well as at the institutional and horizontal levels. Here, the leading idea is that citizens are involved in these processes as people taken as they actually are, here and now, in their historical and social embeddings104. From the premise of the hypothetical attitude taken by the participants in the discourse and, thus, from their decentred understanding of the world while testing norms-candidates, important consequences follow for an understanding of the social contract. It is no longer a hypothetical nor a historic act, but quite the contrary, it unveils itself as a historic future-oriented project. The participants in the project ‘cannot produce basic rights in abstracto but only particular basic

102 Ibidem, p. 41. 103 Ibidem, p. 68. 104 Compare Jeffrey C. Alexander, The Civil Sphere, Oxford University Press, Oxford, New York, 2006, p. 6.

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rights with a concrete content (…) and perceive what in general must be regulated under the given historical circumstances and which rights are necessary for dealing with these matters in need of regulations’105. The decentred understanding of the world that characterises the participants in this discursive task enables an abstract reflection on the norms-candidates as the best interpretations—always taking into account the historic here and now—of the universalisable normative claims106. From this stems the fact that this future-oriented project is embedded in the given historical circumstances; it nevertheless excludes, from the processes of forming the ‘best interpretations’ of the universalisable normative claims, the possibility of directly taking into account any ‘substantive background consensus’107, as the latter is, in post-metaphysical times, simply ‘shattered’. The participants in the project of self-constitutionalisation now ‘find themselves embroiled in global and domestic practical conflicts in need of regulation that they continue to regard as moral, and hence as rationally resolvable, conflicts’108. Moral norms must, therefore, be discursively constructed in public debates and then publicly accepted109 in order to override ‘the current state of nature’ existing from the global-international point of view, to override unguarded ius gentium and to establish ius cosmopoliticum (das Recht der Weltbürger), because ‘whereas international law, like all law in the state of nature, is only provisionally valid, cosmopolitan law would resemble state-sanctioned civil law in definitively bringing the state of nature to an end’110. Processes of self-constitutionalisation, according to the analyses provided in Chapter II, appear to have three time modes: (i) past evoking—reformulations of the norms understood as a certain utterance of universal normative principles; (ii) future invoking—the said reformulations proceed in light of the same normative idea of self-constitutionalisation; and (iii) present involving—that proceeds with reference to the current socio-political situation, political culture and the current constitutional culture eventually (self-reflexively). What role—if any—does this play in the Habermasian contractarian proposal? The threefold time structure indicates the point of reference—an inherited, that is, existing juridical frameworks, namely, national constitutions, international and

105 106 107 108 109 110

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Jürgen Habermas, “Constitutional Democracy…”, op. cit., pp. 777–778. Jürgen Habermas, Moral Consciousness and Communicative Action, op. cit., p. 179. Jürgen Habermas, The Inclusion of the Other, op. cit., p. 39. Ibidem, p. 39. Ibidem, p. 95. Ibidem, p. 168.

supranational laws as well as appropriate political institutional settings—for the public debates on current social, political, economic and other related problems. This provides the reason for Michelman’s charge that ‘the contractarian test of justification is one of hypothetical not actual acceptance of the constitutional essentials in question’111 fails. The test in question is to be understood, principally, in terms of the open-ended public and social practice of cooperation, and not as the momentum of a yes/no position-taking112. Therefore, the acceptability of constitutional essentials (basic rights) depends on the institutionalisation of the communicative coordination of actions, viewed also as learning processes that enable legitimate law-making, while the latter means, in fact, a threefold constitutional process. To reiterate, the self-constitutionalisation taken in legal terms is in need of completion in institutional terms, namely, as an institutional constitutionalisation qua institutional intersections that entail self-reflexive institutional settings, as an enabling condition for the discursive construction of public justifications. However, the success of maintaining and sustaining public justifications inextricably depends on horizontal constitutionalisation. The overstretching normative idea of the future-oriented project of self-constitutionalisation serves here as a critical yardstick that enables changes leading to the improvement of the current status quo. This normative yardstick, however, is tailored according to serious presuppositions of incremental processes of increasing rationalisation that proceed with regard to cultures, public-political institutions and legal systems as well as order. The present-involving moment refers, then, to the activation of the actual resources of an abstract political culture that is under constant construction, and also to the stimulation of its anchors, namely, pluralistic lifeworlds. Arguably, the present-involving time mode may be comprehended as a reference to the public construction of justifications of decisions that contribute to the development of an abstract political culture. These processes become complemented by the proliferation of the transnational citizenry that remains, in tension, caused by the interactions between the abstract political culture and the diversity of the transnational

111 Frank I. Michelman, “Morality, Identity and ‘Constitutional Patriotism’”, Ratio Juris, Vol. 14, No. 3, September 2001 (pp. 253–71), pp. 262. 112 As Pablo De Greiff neatly highlights, ‘Habermas argues not only for a universalistic principle of morality, but for the thesis that universalizability can only be tested through real dialogues and not through Kantian experiments’; Pablo De Greiff, “Habermas on Nationalism and Cosmopolitanism”, Ratio Juris, Vol. 15, No. 4, December 2002 (pp. 418–38), here p. 420.

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citizenry itself, which come to voice basically in institutional intersections which should be designed in a way that permits their rationally acceptable solutions. Thus, the future-invoking moment reveals itself to be the best—always here and now—interpretation of the normative universalisable claims capable of integrating all citizens as human beings, notably, in terms of human rights that are always under communicative (discursive) cooperative construction. More precisely, with regard to the so-called enabling conditions, the future-invoking normative project introduces the idea of the political construction of an inclusive community113 erected on the threefold compatible processes of constitutionalisation: with regard to self-constitutionalisation, understood in terms of the cooperative elaboration of the best interpretations of universalisable normative claims (human rights): institutional constitutionalisation, understood as providing and maintaining self-reflexive institutional frameworks, wherein institutional intersections take place and deliver public justifications for the decision-making processes; and finally, horizontal constitutionalisation, as incremental processes of rationalising lifeworlds, which underpin the possibility of self-reflexive transformations of cultures that may become entrenched within transnational social solidarity. Placing the emphasis on the open-ended processes of public justifications of political decisions, which should be made with regard to the universalisable normative claims, seems to be a crucial idea for this contractarian proposal of constitutional democracy. Meeting the normative expectations means that these processes should ‘always [be] open to the democratic freedom of calling into question and presenting reasons for the renegotiation of the prevailing rules of law, principles of justice and practices of deliberation’114. The concept of constitutional democracy, conceived as above, allows Habermas, as Jan-Werner Müller succinctly points out,

113 Bartosz Wojciechowski also writes on the idea of an inclusive constructivist community in Philosophical Approach to the Interculturality of Criminal Law, Peter Lang Verlag, Frankfurt am Main, 2010, Chapter 1.1. 114 James Tully, “The Unfreedom of the Moderns in the Comparison to Their Ideals of Constitutional Democracy”, The Modern Law Review, Vol. 65, No. 2, March 2002 (pp. 204–228), here p. 218; p. 217: ‘If citizens are to be free, then the procedures by which they deliberate, the reasons they accept as public reasons, and the practices of governance they are permitted to test by these democratic means must not be imposed from the outside (…), but must themselves be open to deliberation and amendment en passant (not all at once)—in the course of the exchange of reasons— as the principle of democracy requires. The entire exercise of democratic freedom in relation to the existing rule of law must be intersubjective and open-ended practical reasoning’.

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to avoid a twofold fallacy: the foundationalist fallacy115 and rationalist-voluntarist fallacy116. In the following paragraphs, I employ the tool kit introduced in the previous chapters in order to interpret these two fallacies that Habermas seems to escape, in Müller’s view. The foundationalist fallacy refers to the descriptive moment of the state of nature, that is, to formulating a response to the question, “What are the people like, who are supposed to enter into a social contract?” As opponents to the contractarian paradigm used to highlight, the answer to this question were conjured ex nihilo in fact. As the nature of an un-socialised human being remains unknown, further theoretical steps intended to erect, on this unknown and hypothetical human nature, the human capability for solving real conflicts in the world we inhabit, and for solving those problems in a way that presumes to establish a legitimate and decent legal-political order, that is, an order based on normative premises, all seems to be unjustified from the anti-contractarian point of view. Additionally, even if such a concept of human nature could become acknowledged, it would still remain useless in the face of real conflicts arising among differently socialised citizens, who are embedded in diverse cultures and thus hold onto different beliefs in contemporary pluralistic societies. Hence, the foundationalist fallacy of the previous contractarian thinkers lies in the fact that real citizens, as human beings, have the premises of general human nature imposed on them, and the best solutions, understood in terms of a decent society and just legal-political order, proposed in the next theoretical step, are tailored for others, rather than the real addressees of those philosophical investigations—that is, they are not tailored for citizens taken as they really are. On the other hand, the rationalist-voluntarist fallacy, as Müller neatly describes, relies on the ‘claim [that] the attachment has to be purely rational and voluntary’117. I interpret that as the attachment to the constitution as an utterance of the social contract. The very idea of this fallacy relies, then, on underestimating the complexity of the social contract. The latter should be characterised, as Habermas puts it, (i) by the threefold time mode (ii) proceeding on three levels of constitutionalisation processes, (iii) and should refer, with regard to the three possible formulations of arguments while using the public power of judgement, to norms, values and interests. 115 Jan-Werner Müller, Constitutional Patriotism, Princeton University Press, Princeton, Oxford, 2007, p. 70. 116 Ibidem. 117 Ibidem.

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The problem that arises at this point is that the rationalist aspect of this fallacy oversimplifies human beings as rational egoists, in fact. The claim to pure rationality, as a backdrop against which a social contract may be founded, underlies as the dominant premise the pursuit of individual interests—the premise that the best reason for people to bring the state of nature to its end is to protect their property, or more broadly, the acquisition of a warranty of private autonomy over all. Indeed, Habermas discerns in the previous contractarian theories, including the Rawlsian one (from The Theory of Justice), such a fallacy that results in denying the possibility of reaching—in the public use of reason—an understanding in terms of (moral) consensus and in adopting ‘the generalized notion of the contract derived from private law’118. But such rational egoists seem to be caught in the endless presence, in which they make unilateral decisions that are meaningful, but always only for a solitary individual. Interestingly, the voluntarist aspect of this fallacy, on the contrary, seems to overestimate the arbitrary will of those who are supposed to join the social contract. Paradoxically, however, with the well-grounded reference to the contractarian tradition, this aspect puts forward conceptions of the good that people may hold onto as the best and most solid reasons for the agreement on a certain axio-normative framework of social cooperation. Alas, this theoretical shift roots the social contract in the ethical tissue of social relations and, as a result, takes the attention back to the past, to that which ‘has always already connected’ some people. In other words, the voluntarist aspect catches people in their beliefs concerning the concept of the good and the good life, in the particularity of lifeworlds or reasonable comprehensive doctrines holding them tightly in the past. As Habermas himself adds, his conception is also oriented to avoid a third kind of fallacy, namely, ‘an abstractive fallacy’119 taking for granted a Western culture and its discourse as universally valid. In this case, it imposes on others a certain kind of discourse concerning human rights, and about ignoring the cultural and ethical peculiarity of different parts of the world. The defence of the German philosopher against a possible charge of this sort also stresses a liberal moment of the idea in question, which is focused on ‘provid[ing] every voice with a hearing’120. Further, it would be complemented with a more republican feature stressing the role of democratic and therefore cooperative attempts at providing a legitimation of the law, namely, discursive constructions of the best 118 Jürgen Habermas, The Inclusion of the Other, op. cit., p. 15. 119 Jürgen Habermas, Postnational Constellation, op. cit., p. 120. 120 Ibidem, p. 120.

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interpretations of human rights for the polity in question, notably, basic rights, instead of an imposition on any polity of the best interpretations of basic rights, as they would be comprehended from the external perspective. These cooperative attempts, one must keep in mind, come true in the institutional constitutionalisation, where, through institutional intersections, public justifications of decisions, including constitutional law-making, proceed. To sum up, Habermas seems to escape those three fallacies characteristic of the previous contractarian thinkers, qua introducing a threefold time structure for constitutional interpretations—interpretations that are supposed to contribute heavily to ongoing public debates as learning processes, which are in themselves transformative. Thus, taking citizens as they really are means here to take into account the communicative power that transforms human motives and reasons—the power that is realised in discourses. Nonetheless, it is undeniable that the idea of the interpretations of basic rights, grounded in discourse ethics, as always—here and now—the best interpretations of universalisable normative claims (that is, human rights) necessarily exceeds the concept of a national polity. Undoubtedly, this idea is directed at shaping a kind of constructivist inclusive community based on the introduced three normative conceptions of constitutionalisation, namely, legal, institutional and horizontal. Therein, the collective efforts oriented at elaborating the best interpretations of human rights come hand-in-hand with—meeting the democratic requirements— public constructions of justifications for political decisions, and horizontal constitutionalisation that bears fruit in transnational solidarity relations. This is the next great change introduced into the contractarian paradigm, however still Kantian in spirit. It is about apprehending the current global-international situation in terms of the state of nature, without limiting the application of the term to any statenational situation. This postulate, nevertheless, makes sense and may be comprehended as a useful theoretical device suitable for changing the global political and legal situations only and only if adopting a moral point of view—transgressing broadly the lifeworlds’ particular perspectives—is possible, however, on the grounds of discourse ethics. Thus, the future-invoking time mode, based on the principles of discourse ethics, calls for such a construction of a future inclusive political community founded on ‘cosmopolitan law [which] is a logical consequence of the idea of the constitutive rule of law. It establishes for the first time a symmetry between the juridification of social and political relations both within and beyond the state’s borders’121. Of course, 121 Jürgen Habermas, The Inclusion of the Other, op. cit., p. 199.

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as Habermas stresses, such a constructivist community must be complemented by a civil transnational—or cosmopolitan, as Habermas calls it—solidarity122; however, he does not seem to be quite clear as to what it could mean. I contend that the idea of the inclusive political community may gain the feature of feasibility exclusively through entrenching institutional intersections, wherein public justifications are constructed and which, at the same time, may trigger the processes of rationalising the lifeworlds that may entail the founding of social solidarity that exceeds national borders. Habermas, on one hand, discovers that at the cosmopolitan level, which is until now the most complex level we can think of, this solidarity may be only ‘legally constructed’, in the sense that solidarity also ‘reproduces itself through political participation’123. In light of my previous analyses, the talk about universal values (not ideas) seems to have only ideological relevance, as the motivational power of values relies on peculiarity that renders shared patterns of conduct transparent with regard to the shared needs. For this reason, organic solidarity cannot be restated. A more robust argument for constructing so-called positive solidarity at the cosmopolitan level seems to provide the idea of political participation— importantly, deliberative political participation that pays heed to the discursive institutional settings. This deliberative political participation is supposed to generate, in learning processes, understood also as transformative ones, an abstract political culture as a neutral mediator of different lifeworlds and, therefore, to stand as a source of social integration—once more with regard to the Kantian distinction of three imperatives—in relation to the ‘mutual understanding, intersubjectively shared norms and collective values’124 that underpin the emergence of a transnational-global citizenry. Naturally, at the very moment of current affairs, it should instead be understood in terms of pointing out the enabling conditions (elements of communicative structures to be developed and institutionalised on the global scale) for building such solidarity. On the other hand, Habermas states that ‘civic solidarity is rooted in particular collective identities; cosmopolitan solidarity has to support itself on the moral universalism of human rights alone’125. These seemingly contradictory views raise a question about what this cosmopolitan solidarity is in fact, and whether constituting it is a viable idea or not.

122 123 124 125

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Jürgen Habermas, Postnational Constellation, op. cit., pp. 55, 56. Ibidem, p. 76. Ibidem, p. 82. Ibidem, p. 108.

My response to this riddle is as follows. Habermas’s proposal, in comparison to previous contractarian theories, shifts the emphasis from the hypothetical past to the utopian future, where globally enforceable human rights stand as a legal figure of Kantian ius cosmopoliticum, as das Recht der Weltbürger, and form a ‘multilevel global constitutional system’126. Why does Habermas refer to this as a ‘realistic utopia’? Here, he shifts from the past to the future as the normative foundation of a social contract. The constructivist element of the contractarian paradigm becomes reinforced in the architectonic of his reflections, because the construction of an inclusive political community is assumed, but in the future. So far, the first theoretical moment of the paradigm in question, namely, the state of nature, has always been under theoretical construction, and now, the future turns out to be clearly under such a non-hypothetical construction. This is the very consequence of taking seriously all citizens as free and equal, and—under the enabling conditions of the principles of discourse ethics—giving them a voice in the communicative structures of public spheres. Crucially, the transformative power released during the participation in communicative, and especially in discursive, structures, strongly stressed by Seyla Benhabib, influences the participants’ reasons, interests and beliefs. Thus, the idea of the construction of a worldwide inclusive political community gains republican provenance, where ‘people (…) are viewed not as a prepolitical datum but as a product of the social contract. The participants form an association of free and equal consociates under law through their join decision to make use of their original right “to live under public laws of freedom”’127. This transformative power of discourse seems to form the core of the term ‘realistic utopia’. The idea of a worldwide inclusive political community is a kind of utopia in the sense of something that does not exist yet or may still be questionable128, but at the same time, it is something most wanted to come true from the normative point of view (these universalisable normative claims as enforceable rights). This utopia is realistic in this sense that it would 126 Jürgen Habermas, The Crisis of the European Union. A Response, trans. Ciaran Cronin, Polity, Cambridge, Malden, MA, 2012, p. 94, supra note. 127 Jürgen Habermas, The Inclusion of the Other, op. cit., p. 137. 128 However, for some thinkers, there is no doubt that ‘since the UN Declaration of Human Rights in 1948, we have entered a phase in the evolution of global civil society which is characterized by a transition from international to cosmopolitan norms of justice’, Seyla Benhabib, “On the Philosophical Foundation of Cosmopolitan Norms”, in: Tomasz Gizbert-Studnicki, Jerzy Stelmach (eds.), Law and Legal Cultures in the 21st Century. Diversity and Unity, a Wolters Kluwer business, Warszawa, 2007, pp. 63–64.

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be constructed in the long term—it needs generations to come true, as Habermas emphasises—under the enabling conditions of the principles of discourse ethics that are put into the processes of legal institutionalisation129. The feasibility of this realistic utopia depends on the incremental processes of increasing rationalisation of lifeworlds. This utopian picture may be comprehended as a viable idea, when one takes into account that it is not to be provided in one act but in certain multidimensional (national, international and transnational, global) threefold processes of selfconstitutionalisation and through diverse democratic procedures that take into consideration the ‘middle term’, that is, the ethical tissue of each polity in question, and also the ‘individual term’, that is, each citizen as a human being standing for the term ‘legal person’. ‘On the one hand, human rights could acquire the quality of enforceable rights only within a particular political community—that is, within a nation state. On the other hand, the universalistic claim to validity of human rights which points beyond all national boundaries could be redeemed only within an inclusive worldwide political community. This contradiction would find a reasonable solution only in a constitutional world society (which would not therefore necessarily have the characteristic of a world republic).’130

129 In this sprit, Habermas seems to understand the transformations of the recognition of the idea of human dignity, see Jürgen Habermas, Autonomy and Solidarity. Interviews, Peter Dews (ed.), Verso, 1986, p. 145. With regard to the issue in question, Seyla Benhabib charges Habermas’s critical theory with unjustifiably forging the moral understanding of institutional justice and leaving behind an aesthetic-expressive discourse, which signifies, in fact, leaving behind the philosophical interest that states that ‘what they [individuals] need and desire is their business’ (Seyla Benhabib, Critique, Norm, and Utopia. A Study of the Foundations of Critical Theory, Columbia University Press, New York, 1986, p. 332), and in the aftermath of this ‘transfiguration’ an ‘inner nature is moved into a utopian perspective’ (ibidem, p. 337). Quite similarly, she addresses the issue in Seyla Benhabib, “Critical Theory and Postmodernism: On the Interplay of Ethics, Aesthetics, and Utopia in Critical Theory”, in: David M. Rasmussen (ed.), Handbook of Critical Theory, Blackwell Publishers, Oxford, Cambridge, Massachusetts, 1996. 130 Jürgen Habermas, The Crisis of the European Union, op. cit., p. 93. Compare Jürgen Habermas, Time of Transitions, trans. Ciaran Cronin, Max Pensky, Polity Press, Cambridge, 2008, p. 28: ‘For notwithstanding their purely moral content, human rights exhibit the structural features of individual rights which are essentially oriented to achieving positive validity within an established legal order. Only when human rights have found their proper “place” in a global democratic constitutional order, analogous to that of the basic rights in our national constitutions, will we be

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The liberal protection of private rights builds the space for autonomously shaping the social milieu, including social solidarity, that would spread over at the transnational level, if the public autonomy—and implied rights for political participation—is also safeguarded, and supranational decisions enhance channels of opinion- and will-formation. Therefore, Habermas seems to be facing the firing squad: if there are such political orders that are immune to democratic procedures expressing the autonomous will of citizens as always the addressees as well as the authors of enacted law, then one must choose what comes first: democratic procedures in domestic legal systems that are channels for cooperative elaborations of the here and now best interpretations of universalisable normative claims (basic rights), or just the rule of law supported by the principle of argumentation (U) which is focused on impartiality, and thus necessarily implies the inclusion of every potential/possible addressee of the law. Habermas seems to choose— already in The Postnational Constellation, in The Divided West, and he restates his position in The Crisis of The European Union—the principle of argumentation that tests in the argumentative practice norms ‘capable of commanding universal agreement—for example, norms expressing human rights’131. This shift (and, in fact, it brings about at least two such current moves) appears paradoxical and contradictory to the co-originality thesis, presented and elaborated in depth in Chapter II (of the rule of law and the principle of democracy); however, it is repeated in The Crisis of The European Union132. The Habermasian argumentative strategy is, in my view, as follows: first, we take for granted a normative reconstruction of ‘horizontal relationships’ based on the Kantian imperative and inscribed therein the ‘reciprocal recognition of the legislating will of each person’133 that works as an intuitive assumption of every speech act. Then, we see that there is no need to ‘treat the creation of an association of legal persons, defined as bearers of individual rights, as a decision in need of normative justification’134, because this normative justification is, in fact, inscribed in this horizontal

131 132

133 134

able to assume that the addressees of these rights can also regard themselves as their authors as the global level’. Jürgen Habermas, The Inclusion of the Other, op. cit., p. 43. Jürgen Habermas, The Crisis of The European Union, op, cit., p. 87, supra note 23: ‘human rights are not opposed to democracy but are co-original with it. (…) Human rights make possible the democratic process without which they themselves could not be enacted and concretized within the framework of the civil rights-based constitutional state’. Ibidem, p. 90. Jürgen Habermas, Postnational Constellation, op. cit., p. 122.

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recognition. What remains in need is just the creation of a constitutional democracy and the provision of a guarantee for its exercise that aims at the cooperative construction of an appropriate legal-political order, notably, an order appropriate for the discursive construction of the best interpretations of universalisable normative claims. But once more, it must be stated, then, that the core idea now lies within the legal creation of the worldwide inclusive political community, wherein every citizen, as a human being, has an equal voice and equal opportunities to shape the world in which s/he lives, participating in the discursive construction of the best interpretations of universalisable normative claims, contributing to the construction of an abstract political culture and, in the meantime, shaping transnational solidarity relations. Indeed, three kinds of constitutionalisation have appeared in the book so far: legal, institutional and horizontal constitutionalisations. Should one of them be abandoned, or may we sensibly hold onto the threefold process to proceed?

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CHAPTER V What is the Prescription for the EU? 1. Kantian Ius Cosmopoliticum or European Self-Constitutionalisation? As those who are connected with the Oslo ‘factory’1 advocate, ‘theory matters’2. Moreover, ‘theory matters to politics’ and to citizens3, for whom it may spur discussions and debates, possibly making them better informed on the issues on which they should make decisions, either on their own or collectively. If it is so, and we have taken it for granted, then we have arrived at the point where the question about the significance of Jürgen Habermas’s contractarian theory of politics and citizens should be addressed directly. Therefore, the aim of this chapter is to scrutinise the extent to which any prescriptions for citizens and decision-makers of diverse kinds follow from the above analyses. Taking citizens seriously does not mean, however, that in each theory, they come to the fore of theoretical investigations all alone. In recent debates taking into account the legal and political situations of the EU, where the polity strongly influences Europeans’ everyday lives4, the most prominent issue at stake seems to be whether it makes sense—in philosophical terms—to hang onto the monist view of law which leads to claims on one constitutional law (that may be of diverse breadth and scope), or perhaps it is more reasonable to claim the paramount advantages stemming from a pluralist functioning of diverse autonomous legal systems. Moreover, according to Tanja Hitzel-Cassagnes, not just legal pluralism itself but the processes that have put it forward are of most

1 2 3 4

The ‘Oslo “factory”’—ARENA, Centre for European Studies, http://www.sv.uio.no/ arena/english/. John Erik Fossum, Augustín José Menéndez, The Constitution’s Gift. A Constitutional Theory for a Democratic European Union, Rowman & Littlefield Publishers, Inc., Lanham, Maryland, 2011, p. 225. Ibidem, pp. 128–129. Thomas Risse, A Community of Europeans? Transnational Identities and Public Spheres, Cornell University Press, Ithaca, London, 2010, p. 3; Augustín José Menéndez, “The European Democratic Challenge: The Forging of a Supranational ‘Volonté Générale’”, European Law Journal, Vol. 15, No. 3, 2009 (pp. 277–308), here p. 282.

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urgent philosophical and theoretical concern, namely, ‘the disintegration of legal orders, the fragmentation of legal regimes, the disintegration of institutions and the decentring of legitimate sources of law’5. In both cases, the identity of the European polity, and therefore also the identity of its citizens, is at stake. Undoubtedly, Immanuel Kant can be connected to the first approach, which could be still relevant in contemporary times6; and the German legal scholarship continues to develop this approach7, including Habermas, who undertakes the problem of the constitutionalisation of international law8. On what concerns legal pluralism, there is no doubt that Neil MacCormick is the one ‘who gave us “constitutional pluralism”’9. This is precisely the critical issue to which the previous analyses in this book have been leading. The discussions concerning the said issue take the EU as the most visible or even paradigmatic polity at stake. Daniel Halberstram incisively distinguishes in this context an ‘internal dimension’ that concerns the ‘relationship between the European Union and the Member States’ legal orders’10, and an ‘“external dimension” of European constitutionalism’ which refers to ‘a measure of independence

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Tanja Hitzel-Cassagnes, “Are We Beyond Sovereignty? The Sovereignty of Process and Democratic Legitimacy of the European Union”, in: Augustín José Menéndez, John Erik Fossum (eds.), Law and Democracy in Neil MacCormick’s Legal and Political Philosophy. The Post-Sovereign Constellation, Springer, Law and Philosophy Library, Vol. 93, Dordrecht, Heidelberg, London, New York, 2011, p. 134. 6 Compare on this very issue José Manuel Aroso Linhares, „Jus cosmopoliticum e civilização de direito: as ‘alternativas’ de tolerância procedmimental e da hospitalidade ética“, Boletim da Faculdade de Direito, Vol. 82, 2006 (pp. 135–180). 7 Gráinne de Búrca, “The ECJ and the International Legal Order: A Re-evaluation”, in: Gráine de Búrca, J. H. H. Weiler (eds.), The Worlds of European Constitutionalism, Cambridge University Press, Cambridge, New York, 2012, p. 131. 8 Jürgen Habermas, The Divided West, trans. Ciaran Cronin, Polity Press, Cambridge, Malden MA 2008. Most recently see Jürgen Habermas, “Plea for a Constitutionalization of International Law”, Philosophy & Social Criticism, Vol. 40, No. 1, 2014 (pp. 5–12). 9 Daniel Halberstram, “Local, Global and Plural Constitutionalism: Europe Meets the World”, in: Gráine de Búrca, J. H. H. Weiler (eds.), The Worlds of European Constitutionalism, Cambridge University Press, 2012, p. 288; Augustín José Menéndez, John Erik Fossum (eds.), Law and Democracy in Neil MacCormick Legal and Political Theory. The Post-Sovereign Constellation, Springer, Law and Philosophy Library, Vol. 93, Dordrecht, 2011, “Introduction”, p. X. 10 Daniel Halberstram, “Local, Global and Plural Constitutionalism: Europe Meets the World”, op. cit., pp. 185–186.

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from international law’11. These two clusters of problems may be affirmed as paradigmatic in the following cases. With regard to the ‘internal dimension’: Van Gend en Loos v. Nederlandse Administratie der Belastingen ([1963] ECR 1 case 26/62) or Flamino Costa v. ENEL ([1964] ECR 585 (6/64)), in which the ECJ (now the Court of Justice of the European Union) affirmed that the Union’s law (the former Community law) is sui generis, and, accordingly, Kadi I ([2008] ECR I-6351), the case when the ECJ in its review stated that it is itself basically dedicated to protecting the ‘municipal’ legal order of the EU. The second approach to constitutional issues with regard to the EU comprises at least two sorts of stances as well: one that emphasises the plurality of ‘separate and distinct legal orders’12 and another deemed to be originally MacCormickian, that emphasises ‘a pluralism of interpretive institutions (“institutional pluralism” or “interpretative pluralism”)’13, where the second name is introduced by Halberstram. The last view applies to institutions which are structurally distinct, but are all oriented at ‘interpreting a shared legal system of norms (…) [while the] unsettled hierarchy of interpretative authority’14 is assumed. In this context, respectively, the ECJ ruling in Kadi I, and its ruling in Kücükdeveci v Swedex GmbH & Co KG ([2010] C-555/07; especially para 21) seem to be paradigmatic. There are many nuance paths that branch from each of the two approaches and which are diversely labelled. Generally, it may be noted that, within the whole array, on one hand, there are claims to universal or global constitutionalisation confronted with claims to global legal pluralism, and on the other hand, there are claims to local constitutional sovereignty facing claims to multilevel governance15. However, as Gráine de Búrca aptly affirms, the best solution, at least in the case of the EU, lies in the ‘soft constitutionalism meeting soft pluralism somewhere in

11 Ibidem, p. 187. 12 Gráinne de Búrca, “The ECJ and the international legal order: a re-evaluation”, op. cit., p. 127. 13 Daniel Halberstram, “Local, Global and Plural Constitutionalism: Europe Meets the World”, op. cit., p. 168. In N.W. Barber’s view however, “MacCormick’s interpretation [of legal pluralism] is sophisticated, but it may not be sufficiently controversial to be described as ‘pluralist’”; N. W. Barber, “Legal Pluralism and the European Union”, European Law Journal, Vol. 12, No 3, 2006 (pp. 306–329), here p. 326. 14 Daniel Halberstram, “Local, Global and Plural Constitutionalism: Europe Meets the World”, op. cit., p. 168; N. W. Barber, “Legal Pluralism and the European Union”, op. cit., pp. 306–329. 15 Marek Zirk-Sadowski, Mariusz Golecki, Bartosz Wojciechowski (eds.), Multicentrism as an Emerging Paradigm in Legal Theory, Peter Lang Verlag, Frankfurt am Main, 2009.

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the middle’16. As the EU seems to be located in the middle of these debates, from this ‘meeting’ point of view, it may be depicted as the polity ‘in-between’17 the universal/global claims and the local ones, which are being pursued on the grounds of each of the two clusters of approaches, respectively. Further, the picture of the EU as the polity ‘in-between’ seems on one hand to pronounce the prescription resulting from the Habermasian considerations on the constitutional democracy that is expected to handle the universalisable normative claims, on the other hand, being challenged by the ethical fibre of each democratic polity (here, each Member State of the EU and, therefore, its constitutional culture) every time. Yet, interestingly, Habermas’s stance on the matter with regard to more detailed issues is not so consistent, in my opinion18. I shall discuss this below. The idea of the said meeting (of soft constitutionalism and soft pluralism) is drawn from the presumption of universalisable normative claims as underpinnings of the laws of law-making, which form the crux of a democratic constitution oriented at an impartial construction of norms expressing and safeguarding the freedom and equality of citizens in front of the law19. This presumption concerning universalisable normative claims seems to indicate legal monism as the stance that takes seriously the impartiality and equality of legal principles and norms and also seems to meet the demand for the one right answer (as least, in front of the here and now of questioning, vide Dworkin, Habermas) at the level of the interpretation of the legal system. However, it is important to continue to keep in mind what one may learn from Habermas’s investigations of the tensions between universalisable normative claims and the historical circumstances under which they are understood and elaborated, namely, that they always proceed against the backdrop of the constitutional culture, and even more broadly, against the abstract/ general political culture of a given polity. The universalisable normative claims are always in need of interpretations made ‘here and now’ (in certain historical circumstances); hence, their best interpretations retain some ethical fibre and are coloured with collective self-understanding on the part of the authors, who are 16 Gráinne de Búrca, “The ECJ and the International Legal Order: A Re-evaluation”, op. cit., p. 281. 17 Neil Walker, “The Place of European Law”, in: Gráine de Búrca, J. H. H. Weiler (eds.), The Worlds of European Constitutionalism, Cambridge University Press, Cambridge, New York, 2012, pp. 90, 98. 18 Compare Owen Parker, „Why EU, Which EU? Habermas and the Ethics of Postnational Politics in Europe”, Constellation, Vol. 16, No. 3, 2009 (pp. 392–409). 19 Compare Thomas Cristiano, The Constitution of Equality. Democratic Authority and its Limits, Oxford University Press, Oxford, New York, 2008.

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also the addressees, of the law. This is the reason why Pathen Markell maintains that the most appropriate utterance of this tension is made through the resistance to any solid identity-taking (or, in other words, the resistance to the faith in any solid collection or hierarchy of values) at the level of the constitutional culture20. The statement entails holding on in ‘the-between’ while looking ahead at the possibility of the increasingly universalised expressions of any already-taken position towards collective values, in order to do justice to the claim of impartiality. Interestingly, the possibility or even fostering of the stance characterised by ‘self-denying particularism, a sense in which what is legally peculiar to the EU is itself a rejection of particularism’21 is basically ascribed to pluralist approaches which ‘claim to preserve space for contestation, resistance and innovation, and to encourage tolerance and mutual accommodation’22. The tolerance, contestation, resistance and innovation may increase and remain preserved only there, where a plurality of voices is permitted, where they are permitted to come to light and engage in mutual and impartial interplay. Nevertheless, what enables the cultivation of these favourable circumstances for the development of the EU and its law seems to be the umbrella of the common cooperative enterprise dedicated to the best formulations of universalisable normative claims (that is, dedicated to the construction of the common European constitutional law), albeit with the simultaneous lack of a hierarchical order of interpretative players (e.g. the ECJ, national supreme courts of the Member States23). And this entails, in the case of 20 Patchen Markell, “Making Affect Safe for Democracy? On ‘Constitutional Patriotism’”, Political Theory, Vol. 28, No. 1, 2000 (pp. 38–63), here p. 54. 21 Neil Walker, “The Place of European Law”, op. cit., p. 88. 22 Gráinne de Búrca, “The ECJ and the International Legal Order: A Re-evaluation”, op. cit., p. 129. 23 Andreas Voßkuhle highlights in this context that there are no constitutional struggles among constitutional courts-interpreters, and ‘the idea of a comprehensive, dynamic Verbund of the national, supranational and international constitutional courts in the European constitutional sphere’ is being developed; Andreas Voßkuhle, “Multilevel Cooperation of the European Constitutional Courts. Der Europäische Verfassungsgerichtsverbund”, European Constitutional Law Review, Vol. 6, 2010 (pp. 175–198), here p. 184. Florence Giorgi and Nicolas Triart draw on one hand on François Ost and Michel Van De Kerchove and on Miguel Maduro on the other hand in order to develop a network model”, see Florence Giorgi and Nicolas Triart, “Natinal Judges, Community Judges: Invitation to a Journey through the Looking-glass—On the Need for Jurisdictions to Rethink the Inter-systemic Relations beyond the Hierarchical Principle”, European Law Journal, Vol. 14, No. 6, November 2008 (pp. 693–717). Mattias Kumm, “The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in

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the law, the lack of a clear-cut institutional order, a plurality of at least institutional interpreters; they must be at least institutional ones because, in this view, there are no citizens’ voices that can be heard, which undermines to a certain extent the democratic credentials backdrop of this enterprise24. Thus, the pluralist approach breeds the monist-universal approach, for which the diversity of players, although scoring the same goals, forms a characteristic presumption. The concept of the plurality of institutional interpreters (or players) has been charged with making the polity, as is the case of the EU, an unsettled one. Such an unsettled polity ‘is characterized by institutional collisions and confrontations

Europe before and after the Constitutional Treaty”, European Law Journal, Vol. 11, No. 3, May 2005 (pp. 262–307), here p. 301: ‘The relationship between the Court of Justice and national courts specifically is best understood as one focused on mutual deliberative engagement’. Martin Borowski provides a different argument (“Legal Pluralism in the European Union”, in: Augustín José Menéndez, John Erik Fossum (eds.), Law and Democracy in Neil MacCormick’s Legal and Political Philosophy. The PostSovereign Constellation, Springer, Law and Philosophy Library, Vol. 93, 2011), stating that ‘the unconditional supremacy of Union law [over Member States’ laws] is complemented by the judicial supremacy of the ECJ. According to the view of the ECJ, it is solely the ECJ itself, standing over and above the supremacy of Union law, that is empowered to invalidate or to forbear applying Union law’ (ibidem, p. 186) and, therefore, for the intersystemic norms, ‘the result is that the “law” dissolves into rival claims. Which claim will prevail becomes simply a question of politics and power’ (ibidem, p. 195). To sum up, the hierarchical relations within the legal order of the EU remain, to a certain extent, problematic. 24 Of course, an especially important role may be ascribed to the European Parliament; however, its role is quite circumscribed, and the problem at stake is that ‘law-makers in the national legal order are individuals. There, individuals are the primary lawmakers, albeit not in their private capacity: either directly qua citizens or indirectly qua officials’, but it is hard to affirm it in the way of meeting democratic requirements with regard to the European law at the moment; Samantha Besson, “Theorizing the Sources of International Law”, in: Samantha Besson, John Tasioulas (eds.), The Philosophy of International Law, Oxford University Press, Oxford, New York, 2010, p. 164; compare also Augustín José Menéndez, “A Proportionate Constitution? Economic Freedoms, Substantial Constitutional Choices and Dérapages in European Union Law”, in: Edoardo Chiti, Augustín José Menéndez, Pedro Gustavo Teixeira (eds.), The European Rescue of the European Union? The Existential Crisis of the European Political Project, ARENA Report No 3/12, RECON Report No 19, avail. at http://www.reconproject.eu/projectweb/portalproject/RECONReports.html.

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of institutional confusion, where prescribed behavioural logics, meanings, and resources are ambiguous, inconsistent, forgotten, or ignored’25. The shortcomings of an unsettled or unbalanced polity seem unquestionable; however, especially in times of transition, unsettled polities may also foster critical attitudes towards an existing state of affairs, thus creating new and better rules for the institutional design, particularly if the institutions function within the same legal framework. Of course, the requirements of equality as well as of rationality presume that everyone perfectly knows what s/he is free to do, what one is permitted and what one is forbidden to do, and that implies well-known and equal rules of an order; it means, in fact, a well-balanced order. But there is a kind of contradiction in this that is connected with two sorts of elements: a general one and a particular one. That is, a well-balanced order should be flexible enough to face new or unpredicted situations, from which, it follows that it should not be too rigid, especially if it is supposed to respond to the basic principal criteria of the processes of democratic legitimation, namely, inclusiveness and discursiveness26, which render the institutional order self-reflexive. Furthermore, a certain kind of soft pluralist vision of an institutional order has the advantage of establishing—proclaimed on the grounds of an organisationtheory-based institutional approach—a quasi-autonomy of political institutions, as opposed to the so-called democratic deliberative engineering. The latter presumes that, based on democratic expressions of political will, an institutional design and functioning entirely meet the expectations of a democratic founder which eventually makes the political institutions comprehensible basically in terms of utility and effective outcomes, which better fit the idea of governance than the idea of a rules-following and norms-guaranteeing democratic government27. Thus, the quasi-autonomy of institutions, established by institutional interpretative pluralism, may leave certain kinds of conflicts unsolved, which, according to the organisation-theory-based institutional approach, may be assessed also in a positive way, as leaving the political institutions some necessary time for discursive 25 Johan P. Olsen, Governing Through Institution Building. Institutional Theory and Recent European Experiments in Democratic Organization, Oxford University Press, 2010, p. 37. 26 Tanja Hitzel-Cassagnes, “Are We Beyond Sovereignty? The Sovereignty of Process and Democratic Legitimacy of the European Union”, op. cit., pp. 150–151. 27 Compare Johan P. Olsen, Europe in Search of Political Order. An Institutional Perspective on Unity/Diversity, Citizens/Their Helpers, Democratic Design/Historical Drift and the Co-existence of Orders, Oxford University Press, Oxford, New York, 2007; the book presents insightful analyses of this democratic institutional ‘paradox’.

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problem-solving within their organisational setups, that is, for time-consuming processes of mutual learning within the institutions, and resulting from all of this, identity formation28. But this is not where the story ends: constructing a self-reflexive democratic constitutional polity (Chapter II), whereby the processes of lifeworld rationalisation proceed and self-reflective cultures emerge (Chapter III), uncovers the central role of public sphere29 (Chapter IV) that forge the self-reflexive institutional functioning as a viable alternative to the (functional) environmental adaptation paradigm30. In addition, the self-reflexive institutional functioning, assuming the quasi-autonomy of institutions, enables the political institutions to combine, in more optimal (discursive) terms, a rule-following drive with the historical backdrop of certain institutions, which may launch more legitimate logics of appropriateness within the institutions. This represents the core idea of the two-track model of deliberative democracy, when understood in contractarian terms. The self-reflexive institutional functioning stems from taking seriously institutional intersections in which processes of opinion-formation, due to the employment of constuctivist terms and both the inclusive and discursive criteria of democratic legitimation, become transformed into public justifications of political decisions. The quasi-autonomy of institutions, tailored for taking seriously both the institutional intersections and institutional learning, instead of running for outcomes and maximising results in terms of utility31, is unveiled here as one of the fundamental issues of ‘the grounding of inherently legitimate political institutions’32 in the 28 Johan P. Olsen, Governing Through Institution Building, op. cit., p. 135. 29 Erik Oddvar Eriksen, John Erik Fossum, “Conclusion: Legitimation through Deliberation”, in: Erik Oddvar Eriksen, John Erik Fossum (eds.), Democracy in the European Union. Integration through Deliberation?, Routledge, London, New York, 2002, p. 266: ‘Without a public sphere, no democracy!” 30 Johan P. Olsen, Europe in Search of Political Order, op. cit., p. 228ff. 31 Erik O. Eriksen, “Reflexive Integration in Europe”, in: Erik Oddvar Eriksen (ed.), Making the European Polity. Reflexive Integration in the EU, Routledge, London, New York, 2005, p. 10: ‘The reflexive approach is seen as an alternative to the rational choice perspective underpinning “liberal intergovernmentalism”, which sees [European] integration as driven by the interest maximation of the contracting parties (…) It is also an alternative to neo-functionalism’s perspective on “unreflective” spillover processes from “low” to “high politics”’. 32 Thomas Christiano, “Democratic Legitimacy and International Institutions”, in: Samantha Besson, John Tasioulas (eds.), The Philosophy of International Law, Oxford University Press, Oxford, New York, 2010, p. 120.

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democratic polity. Such institutions, then, may be regarded as legitimate only if their legitimacy stems from public debates and the justifications constructed within the intersections of weak and strong publics. In this sense, a reflexive polity, within which ‘the actors reflexively monitor the circumstance of their activities and base their interventions on intersubjectively accessible reasons’33 may be characterised by a ‘reflexive constitutionalization (…) primarily meant to deal with the institutionalization of the public use of reason’34. Or, as I would rather say, the reflexive constitutionalisation is supposed to institutionalise—that is, employ the public use of reason for the expression of fair and equal terms of common action norms justified through—the public power of judgement, which operates in the sense of moving upward (increasing abstractness and institutionalisation in comparison with lifeworlds) and downward (critical bringing back to the lifeworlds the universalised common action norms as patterns of everyday conduct, and therefore it is the de-institutionalising process that brings the agreement into the pragmatic action circle)35. This issue, that is, the necessary intrinsic interplay between the public use of reason and the public power or judgement, is extremely important in the context of deliberative democracy, because it indicates the learning processes, supported by the communicative structures founding this approach to democracy, that define this two-track model36. From this follows three processes of constitutionalisation which complement one another: horizontal constitutionalisation, that is, incremental processes of increasing the rationalisations proceeding in lifeworlds (Chapter III), constitutionalisation understood in terms of an interpretative endeavour proceeding within the constitutional field (constitutional culture), and finally, the constitutionalisation thought of in terms of the institutionalisation of the public power of

33 Erik O. Eriksen, “Reflexive Integration in Europe”, op. cit., p. 10. 34 Tanja Hitzel-Cassagnes, “Discursive Processes in the European Institutional System”, in: John Erik Fossum, Philip Schlessinger, Geir Ove Kværk (eds.), Public Sphere and Civil Society? Transformations of the European Union, ARENA Report 2/07, p. 29. 35 Johan P. Olsen, Europe in Search of Political Order, p. 96: With regard to the processes of integration, he states that ‘processes of institutionalization and de-institutionalization include: (1) reorganizing forms, rules, roles and standards; (2) reinterpreting principles and doctrines, frames of understanding and justification, including who is to be accepted as authoritative interpreters of principles, rules and situations; (3) reallocating resources and changing principles for allocating resources’. 36 Compare Erik O. Eriksen, “Reflexive Integration in Europe”, in: Erik Oddvar Eriksen (ed.), Making the European Polity. Reflexive Integration in the EU, Routledge, London, New York, 2005, pp. 17–18.

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judgement (constructing public justifications) due to the universalisable requirement of the public use of reason. These three moments function in the subjectless public spheres on which the said two-track model of deliberative democracy is erected37. Taking this for granted, it may be stated that the said meeting between soft constitutionalism and (institutional or interpretative) pluralism harbours two tracks of consideration. The first one concerns the internal dimension, namely, the exclusively EU perspective, whereas the second concerns the external dimension, namely, the global perspective. Nonetheless, the point is that the best interpretations of universalisable normative claims result from cooperative interpretations, which are institutionally binding, so they characterise both approaches, to a certain extent, in my view, as the basis and fundamental common normative premises.

2. Internal Dimension of the EU’s Constitutionalisation The EU’s self-constitutionalisation became a hot theme of the current investigations and writings in the social sciences. There is essentially one critical issue at stake in those debates: Who or what rules the processes of Europeanization? The elites? If yes, what kind of elites: jurists, politicians, economists or well-off, welleducated Europeans in general38? At the beginning of Chapter II, I stated that the processes of Europeanization are basically legally driven, and the EU is characterised as having a ‘legocentric posture’39—so, perhaps, legal institutions rule—

37 From the above, it can undoubtedly be seen that throughout the book, I defend such an understanding of subjectless multiple public spheres, in which they flow up until they reach the political institutions breeding them in, or denying them, the legitimation. Any depiction of public spheres that makes a clear-cut distinction between them and political institutions seems to me to slip away the basic idea grounding investigations dedicated to the issue, notably, the legitimation of positive law as a medium of abstract integration in pluralistic polities. However, I agree with Hans-Jörg Trenz, that public spheres should be foremost understood in normative terms, and that is the reason why they are ‘neither a socio-cultural entity nor an institution or an organization that could be shaped by purposeful action’, Hans-Jörg Trenz, “In Search of the European Public Spheres”, in: Augustín José Menéndez (ed.), The European Democratic Challenge, ARENA Working Papers No. 4, February 2008, p. 3; http://www.arena.uio.no. 38 Thomas Risse, A Community of Europeans? Transnational Identities and Public Spheres, Cornell University Press, Ithaca, London, 2010, p. 61. 39 Neil Walker, “The Place of European Law”, op. cit., p. 91.

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just like the ECJ does, so supreme national constitutional courts rule as well40? But the EU affects the everydayness of the Eurocitizens41. So, perhaps, European office-holders have the real impact that we are looking for, especially bureaucrats from Brussels, as we all most often complain of the ‘faceless European bureaucracy’42? However, one must keep in mind that not bureaucrats from Brussels but the Member States are actually the ‘masters of treaties’, so, perhaps, there is an intergovernmental cooperative steering of the EU complemented by the European political institutions of both the supranational and national sorts? At any rate, there is no disputing the fact that the ‘no-demos thesis’ has made an overwhelming career in the state of the art concerning Europeanization43, although, formally, there are Eurocitizens who are directly also, besides the Member States, invoked in the treaties. Therefore, the cluster of issues resulting from the said question on the ruler/s now concerns the European law itself: founded by treaties—is it an international law or municipal law of the EU? Indeed, it is sui generis—but does it 40 Andreas Voßkuhle indicates that there are two ‘constitutional courts’ within the constitutional field of the European law, notably the Court of Justice of the European Union and the European Court of Human Rights, Andreas Voßkuhle, “Multilevel Cooperation of the European Constitutional Courts. Der Europäische Verfassungsgerichtsverbund”, op. cit., p. 176ff. 41 But who are Eurocitizens? Hagen Schulz-Forberg delivers interesting insights in that issue in his article “On the Historical Origins of the EU’s Current Crisis, or the Hypocritical Turn of European Integration”, in: Edoardo Chiti, Augustín José Menéndez, Pedro Gustavo Teixeira (eds.), The European Rescue of the European Union? The Existential Crisis of the European Political Project, ARENA Report No 3/12, RECON Report No 19. He observes that ‘the idea of a European identity was introduced as an instrument to stabilize the situation and to support the Werner and Davignon Plans. It was more precisely designed at the Copenhagen Summit in December 1973’ (ibidem, p. 27). And he adds that ‘in the 1980s, identity was linked to the market language as it emerged in Delors’ plan for an internal European market. (…) In the 1980s the identity concept also began to connote a European cultural value basis. The concept lost its connection to an imagined European political economy and reconnected to cultural imaginations’, ibidem, p. 28. 42 Thomas Risse, A Community of Europeans? Transnational Identities and Public Spheres, op. cit., p. 56. 43 Bellamy and Castiglione express the point clearly: ‘Though the EU dresses itself up in the rhetoric of democracy (…) it is covered at best by only the scantiest democratic fig leaf’, Richard Bellamy, Dario Castiglione, “The Uses of Democracy. Reflections on the European Democratic Deficit”, in: Erik Oddvar Eriksen, John Erik Fossum, Democracy in the European Union. Integration through Deliberation?, Routledge, London, New York, 2002, p. 65.

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mean something more relevant than this, that the said law is neither international nor national? Neil MacCormick used to claim that the EU has a constitution, but in a functional sense44—but does it mean anything significant when faced with the statement that ‘the reason there is incommensurability in Europe is because of the absence of a European constitutional demos’45? The existence of such a constitutional demos may be questioned on the grounds of the severe problems that the European public spheres suffer. For example, introduced in Chapter II, Habermas’s usage of the Kantian imperatives for differentiating three kinds of arguments in public spheres is further developed in order to depict the European state of affairs in that regard46. This differentiation yields ‘a problem-solving entity’, ‘a value-based community’ and ‘a rights-based postnational union’47. The first one consists of ‘criss-crossing’ networks dedicated to solving certain practical problems, but it is too fragmented and institutionally unbound to significantly participate in the edifice of European public spheres. The second layer seems to be, in general terms, seriously lacking in the EU, as the latter appears to be still too closely tied to national publics. In the terms elaborated in the course of this book, it may be stated that there is a void of

44 Neil MacCormick, Who’s Afraid of a European Constitution, Imprint Academic, Exeter, UK, 2005, pp. 40–44. 45 J. H. H. Weiler, “Prologue: Global and Pluralist Constitutionalism – Some Doubts”, in: Gráine de Búrca, J. H. H. Weiler (eds.), The Worlds of European Constitutionalism, Cambridge University Press, Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Tokyo, Mexico City, 2012, p. 13. 46 Compare John Erik Fossum, “Constitution-Making in the European Union”, in: Erik Oddvar Eriksen, John Erik Fossum (eds.), Democracy in the European Union. Integration through Deliberation?, Routledge, London, New York, 2002. The ideas presented by Fossum become later on elaborated on the grounds of the CIDEL research project—Citizenship and Democratic Legitimacy in the European Union (2002–2005), scientifically coordinated by Erik Oddvar Eriksen. Compare also Erik. O. Eriksen, “Introduction” and his “Reflexive Integration in Europe”, both in: Erik Oddvar Eriksen (ed.), Making the European Polity. Reflexive Integration in the EU, Routledge, London, New York, 2005. I recall, based on Kantian practical philosophy, CIDEL’s findings also in the article: Karolina M. Cern, Piotr W. Juchacz, “Post-Metaphysically Constructed National and Transnational Public Spheres”, in: Tadeusz Buksiński (ed.), Religions in the Public Spheres, Peter Lang Verlag, Frankfurt am Main, 2011, pp. 153–172. In the following considerations, my aim is also to develop some further arguments concerning problems with the so-called value-based community. 47 John Erik Fossum, Philip Schlessinger, Geir Ove Kværk (eds.), Public Sphere and Civil Society? Transformations of the European Union, ARENA Report 2/07, pp. 1–4.

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institutional intersections that would produce European-wide public justifications which seriously contribute to the emergence of the European abstract political culture48 as supported (where this support is meant as the requirement imposed by the integrative power of democratically made positive law) by the transnational citizenry. The third one, ‘a rights-based post-national union’, for which the interactions between the weak and strong publics are decisive, is not yet ‘fully-fledged’49. At any rate, rather thin European communicative structures are observed, despite the fact that there are also some voices claiming that the Europeanization of national publics renders the European problems common to all Eurocitizens50, because such Europeanization of national publics does not seem to be a sound enough premise to forge a backdrop for a constitutional demos. Thus, if one takes for granted ‘that (1) the European Union has a constitution in a material sense; (2) the European Union has at most bits and pieces of a formal constitution (…); (3) the European Union does not seem to have a constitution in a normative-democratic sense because the norms that make up the Union’s material constitution (…) seem to be lacking in democratic legitimacy’51—then the immediate question arises: ‘whose reason or reasons speak through such a constitution’52?

48 In other words, with regard to my investigations provided in Chapter III, the concept of ‘values-based community’ should be revisited and replaced by the concept of community of abstract political ideals that would respond, for example, to the problem how is conceivable an equivalent of the social democratic Rechtssaat on the level of the European Union? Otherwise we are dependent on the ECJ’s politics of four freedoms protection—for example. 49 John Erik Fossum, Philip Schlessinger, Geir Ove Kværk (eds.), Public Sphere and Civil Society? Transformations of the European Union, op. cit., p. 4. 50 Thomas Risse, A Community of Europeans? Transnational Identities and Public Spheres, op. cit., p. 5; Risse claims that the processes of Europeanization of national publics may be clearly observed. 51 John Erik Fossum, Augustín José Menéndez, The Constitution’s Gift, op. cit., p. 27. Compare Augustín José Menéndez, “A Proportionate Constitution? Economic Freedoms, Substantial Constitutional Choices and Dérapages in European Union Law”, in: Edoardo Chiti, Augustín José Menéndez, Pedro Gustavo Teixeira (eds.), The European Rescue of the European Union? The Existential Crisis of the European Political Project, ARENA Report No 3/12, RECON Report No 19, pp. 80–85; available at http://www.reconproject.eu/projectweb/portalproject/RECONReports.html. 52 Karolina M. Cern, Piotr W. Juchacz, Bartosz Wojciechowski, “Whose Reason or Reasons Speak Through the Constitution? Introduction to the Problematics”, International Journal for the Semiotics of Law, Special Issue, Vol. 25, No. 4, 2012 (pp. 455–463).

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In this book, the normative outlook on the said matters is of the basic concern. From the previous analyses emerge some profound hints as to the construction and bricks of the sought-after normative edifice of the EU. Its enabling conditions have been revealed as discourse principles applied to the democratic structure of the polity, to transform the status quo in the direction of wider and deeper democratisation. The direction of the transformations is traced back by the normative future-oriented project of the full inclusiveness of citizens as authors as well as addressees of basic rights as always, here and now, the best interpretations of universalisable normative claims. Normative claims are the constructed results of the public justifications achieved in institutional intersections. Institutional intersections are, then, the source of the mutual interaction and constructivist transformation of the opinion-formation into will-formation. This is the source, from which an abstract political culture is supposed to stem, and which is also supposed to increase the processes of rationalising lifeworlds enhancing the democratic ethos, both as the upshots of public justifications legitimating political decisions in the medium of positive law, which is then conceived as capable of integrating the citizens at the level of transnational citizenry. The normative force of inclusiveness is meant to forge the incremental empowerment of citizens, leading to the increase in breadth and scope of the processes of public discursive participation. The critical impact of the normative idea launches the specific dynamic of the processes of putting forward demands for the deeper and wider democratic legitimation of the common action norms and political decisions53. The ‘interpretation of international law is still a collective endeavor’54, and, as Habermas shows, any interpretation of common action norms, especially the democratic constitutional ones, is always a collective endeavour, because it should be so. This is precisely the reason why, as John Erik Fossum and Augustín José Menéndez aptly underscore, ‘the more fundamental reform has led to changes that 53 Christian Joerges claims the opposite ‘Instead of requesting the Union to cure its democratic deficit, we should understand and develop the potential of European law to compensate the structural democracy deficits of the European nation states’, Christian Joerges, “What Is Left of the Integration Through Law Project? A Reconstruction in Conflicts-Law Perspective”, in: Edoardo Chiti, Augustín José Menéndez, Pedro Gustavo Teixeira (eds.), The European Rescue of the European Union? The Existential Crisis of the European Political Project, ARENA Report No 3/12, RECON Report No 19, p. 52, http://www.reconproject.eu/projectweb/portalproject/ RECONReports.html. 54 Daniel Halberstram, “Local, Global and Plural Constitutionalism: Europe Meets the World”, op. cit., p. 197.

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were regarded as contributing to the democratization of the European Union, the more democratic credentials of the Union have been found wanting’55. And that explains, on one hand, the ‘democratization of democracy’56 and, on the other hand, ‘the snowballing democratic deficit’57 and results in rigorous research, not merely into European publics spheres but also into European constitutional demos. Keeping in mind that the processes of legitimating the law must go hand in hand with the processes of applying the law, one may easily acknowledge that these processes of interpreting the law shall necessarily take into account (a) the incremental empowerment of Eurocitizens, which demands wider and deeper inter-institutional interpretative cooperation (collective endeavour), (b) while the latter must take heed of the public justifications (institutional intersections meeting the criteria of the inclusiveness and discursiveness within institutional settings), (c) including taking into account the citizens themselves in the elaborations of institutional interpretations of basic laws as well58. From this, it follows that such a polity that turns out to be a collective constructivist endeavour is ‘a synthetic polity [that] is always in process’59, that is, in the process of becoming and emerging; it is always under construction directed at increasing in breadth and scope its inclusiveness and discursiveness. The vision of soft constitutionalism and institutional pluralism sketched in normative terms as above, is, in my view, fully realised in the theory of constitutional synthesis presented by John Erik Fossum and Augustín José Menéndez in The Constitution’s Gift. A Constitutional Theory for a Democratic European Union. The theory of normative synthesis meets the requirements presented above: (i) it is the normative theory which takes seriously the demand for the here and now best interpretations of the universalisable normative claims, (ii) and therefore pays attention to the interpretative institutional endeavour (iii) that takes heed of demands for strong democratic credentials that unleash and swell over time while the synthesis proceeds. Moreover, it is meant to be applicable not only to the EU case, but its aspiration aims at the global legal context. Nonetheless, there are some quibbles left that I would like to address below. 55 John Erik Fossum, Augustín José Menéndez, The Constitution’s Gift, op. cit., p. 222. 56 Denis Vitale, “Between Deliberative and Participatory Democracy. A Contribution to Habermas”, Philosophy & Social Criticism, Vol. 32, No. 6, 2006 (pp. 739–766), here pp. 753. 57 John Erik Fossum, Augustín José Menéndez, The Constitution’s Gift, op. cit., p. 63. 58 John Erik Fossum, “Constitution-Making in the European Union”, op. cit., p. 121. 59 John Erik Fossum, Augustín José Menéndez, The Constitution’s Gift, op. cit., p. 217.

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(i) The theory offers a useful map of contemporary debates on the constitutional matters by distinguishing three conceptions of the constitution in general. Two are sociological ones, namely, formal and material conceptions60, which refer, respectively, to ‘a single, written, and socially recognised constitution’61 and to ‘those norms that can be characterized as constitutional from actual patterns of behavior (…) [and] concern the institutional structure, the decision-making processes, and the basic entitlements that the subjects of law acknowledge to one another’62. It seems that Neil MacCormick refers to the last conception of the constitution when he highlights that the EU has a constitution in a functional sense63. However, what one may find at stake in the theory, and also in the course of these investigations, is the third conception of the constitution, namely, the normative one. ‘The normative conception of the constitution is an essentially normative yardstick, that is, a counterfactual yardstick.’64 Thus, in my view, this conception introduces the philosophical understanding of the normative concept, because it is not simply focused on the current practices of interpreting the fundamental norms but on what these norms should be like65. Taking into account the former considerations, basically those from Chapter II, one should keep in mind that universalisable normative claims are future-oriented (thus can never be fully realised). It 60 61 62 63

Ibidem, p. 22. Ibidem, p. 20. Ibidem, p. 22. Neil MacCormick, Who’s Afraid of a European Constitution, Imprint Academic, 2005, p. 40: ‘A constitution in a functional sense exists wherever a self-referential legal order exists. (…) It exists whenever there is a set of institutional rules which to a reasonable extent guides the behavior of a community of people and which they regard as some kind of a unity’; ibidem, p. 41: ‘Within the legal order of the European Union, rules have been established, mainly in the Treaties, but supplemented by caselaw and by some secondary legal instruments, that set up the various institutions of the Union’. 64 John Erik Fossum, Augustín José Menéndez, The Constitution’s Gift, op. cit., p. 24. 65 The normative conception of the constitution is not, naturally an obstacle to reconstruct the current ‘yardstick of European constitutionality [that] is basically composed of (1) the fundamental rights (…); (2) the economic freedoms at the core of the socio-economic constitution’ and to examine its democratic legitimation, in particular, with regard to the European Courts rulings, see Augustín José Menéndez, “A Proportionate Constitution? Economic Freedoms, Substantial Constitutional Choices and Dérapages in European Union Law”, op. cit., p. 121.

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is the normative claim to universality that leaves a counterfactual imprint on the normative conception of the constitution. And this is the only way the normativity is conceivable in purely philosophical terms66. The normative-philosophical conception of the constitution faces hard critical work while ‘defining constitution by reference to “ideal” (…) standards [and rejecting] a purely sociological definition of constitution’67. With regard to the Habermasian interpretative tool kit, introduced in Chapter II and employed in a quite polemic way to Gadamer’s proposal, but, on the other hand, undertaken by Ronald Dworkin, it functions by making the object of interpretation the best possible one. In so doing, whatever is recognised in sociological terms as the constitution68 must be comprehended in terms of what it should be like, not in terms of what it has been functioning as in practice until now69. Accordingly, my analyses in Chapter II reveal the Habermasian conception of constitutional democracy as based on a certain proposal of a normative reading of the democratic constitution. What is uncovered as paramount to the normative conception of the constitution is that it enables the renewal, in a critical fashion, of the past and present interpretations of constitutions with certain interpretative means oriented at making those past and present interpretations the best interpretations of the universalisable normative claims, because they deliver ‘an essentially normative yardstick’. The increasing demand for the wider and deeper democratic credentials of the European constitutional law gains significance if it is comprehended as a consequence of the application of this normative yardstick to the concept of the common European constitutional law, because this normative yardstick refers to ‘”ever closer” putting in common of national constitutional norms (normative synthesis). (…) Constitutional synthesis therefore presumes a considerable substantive identity between national constitutional norms and Community constitutional norms’70. 66 Compare: Steven Levine, “Truth and Moral Validity: On Habermas’ Domesticated Pragmatism”, Constellations, Vol. 18, No. 2, 2011 (pp. 244–259), here p. 250. 67 John Erik Fossum, Augustín José Menéndez, The Constitution’s Gift, op. cit., p. 24. 68 Ibidem, p. 26: ‘The democratic legitimacy of the constitution requires a basic convergence or overlap between the formal and material constitution’. 69 Ibidem, p. 24: ‘It turns the concept of constitution into a normative weapon which allows us to deny constitutional status to norms that are widely recognized in social practice as the formal constitution or that are followed uncritically as the material constitution of the political community’. 70 John Erik Fossum, Augustín José Menéndez, “Introduction. A Multitude of Constitutions? European Constitutional Pluralism in Question”, in: John Erik Fossum, Augustín José Menéndez (eds.), A Multitude of Constitutions? European Constitutional Pluralism

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The term identity itself calls for those who may recognise the identity in question, therefore it demands the said wider and deeper democratic credentials—as it is supposed to be the identity between71 Community constitutional norms and national constitutional norms. In view of Fossum and Menéndez, this normative yardstick entails the normative assumption ‘that law gives one right answer to all the problems to be solved through it. Legal argumentation breaks down if we assume that one and the same case can have different, even contradictory solutions. That may be the case empirically, but from an internal perspective to law that cannot be endorsed as part of the social practice of integration through law. Democratic legal systems are further pushed into this peculiar form of “monism” by the normative requirements of the principle of equality before the law’72. However, Tor-Inge Harbor cogently reveals the shortcomings of this presumption73. The principle of equality before the in Question, ARENA Report No. 4/12, RECON Report No. 20, pp. 1–2, available at http://www.reconproject.eu/projectweb/portalproject/RECONReports.html. 71 The phrase ‘the identity between’ seems to be intriguing as it may suggest that the identity is either Janus-faced, that is, on the one hand it is a national and on the other hand a European identity of constitutional norms to be recognised at the same time (the ‘dual identity’) or that the term identity should be conceived in processual terms and thus thinking of a national identity of constitutional norms triggers the process of acknowledging a European/Community identity of constitutional norms and vice versa. And in the latter case the term ‘identity between’ indicates how we understand the identity of constitutional norms as such—that means, that what is (or, becomes rather) common in both cases is the understanding of the ‘constitutional identity’ (what is to be refused and what is to be recognised, for example, the universalisability claims of these very norms and/or their specific construction). This poses, however, the other question: does the term ‘synthesis’ mean anything else than just the processual character of (constructing) common constitutional norms, or not? The problem resulting from Hegelian-dialectical approach to this particular synthesis (compare J. Peter Burgess, “Dialectical Constitutionalism?”, in: John Erik Fossum, Augustín José Menéndez (eds.), A Multitude of Constitutions? European Constitutional Pluralism in Question, ARENA Report No. 4/12, RECON Report No. 20) is that the synthesis of constitutional norms is not the same as the synthesis of comprehending two different kinds of constitutional norms (and the latter would be, perhaps, translated into the language of the processual character of constitutional identity as such). 72 John Erik Fossum, Augustín José Menéndez, The Constitution’s Gift, p. 51. 73 Tor-Inge Harbo, „Taking Pluralism Seriously? The Pluralistic Underpinnings of European Constitutional Law”, in: John Erik Fossum, Augustín José Menéndez (eds.), A Multitude of Constitutions? European Constitutional Pluralism in Question, ARENA Report No. 4/12, RECON Report No. 20.

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law is itself in need of a further interpretation that should be sensitive also to problems of social justice and their diverse conceptualisations. It would be strange, I would say, to expect the one right answer (theory) in that regard. Thus, the best answer, in this situation, is to interpret the principle in question on the best available reasons including problems of social justice. Furthermore, this issue is related with the other and no less general one, namely, that in the theory of constitutional synthesis ‘the role and place for essential political phenomena, like conflict and disagreement, is not taken into account’74. And I agree with Marco Goldoni with that regard. Therefore, I would rather interpret the relevance of the concept of constitutional synthesis as follows (and I suggest to give up discussing the law with the reference to ‘monism’ for ever, because it is no longer able to do justice to institutional interpretative pluralism). The normative yardstick imposes, in other words, the duty to participate in a cooperative endeavour oriented at the constructivist task of making the best interpretations of the universalisable normative claims, however, leaving interpretative room for diverse participants in the endeavour. As long as we understand the normative yardstick correctly, that is, as a counterfactual one, we may conceive of the endeavour as the realistic utopia: it is utopia in normative terms that, for the sake of their nature, cannot be realised in purpose-rational terms; however, the concept of utopia in question is realistic as long as it works in a critical way, generating hints oriented at the improvement of historically settled nevertheless currently pursued practices, that is, at the certain ‘here and now’ of interpretations of the legal system’s norms and its institutional order. In my view, since formal and material conceptions of a constitution furnish these interpretations of constitutional norms that rely on a social (interpretative) practice, they remain in need of complementation on the part of this ‘essentially normative yardstick’ which anew unleashes their normative content as always the here and now best interpretations of universalisable normative claims. In that regard, the normative yardstick as a counterfactual one may constantly work in a critical fashion, revealing the gaps among the normative project—the normative ideal—and the way(s) in which it has been unleashed so far. Thus, the normative conception of a constitution reviews in a critical fashion the social practice, more precisely (or directly), the interpretative institutional practice of the collective 74 Marco Goldoni, “The Gifts of Synthesis. Integration and Constitutionalisation”, in: John Erik Fossum, Augustín José Menéndez (eds.), A Multitude of Constitutions? European Constitutional Pluralism in Question, ARENA Report No. 4/12, RECON Report No. 20), p. 14.

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endeavour. Its integrative work proceeds at the normative level of the legal system, though it simultaneously calls for a wider and deeper inclusion, and in so doing, it should also open the institutional interpretative field of (civic) contestation, which would meet the normative requirement of the democratically open-ended process of debates and political decision-making. And this issue of (civic) contestation does not seem to be sufficiently highlighted in The Constitution’s Gift. (ii) The theory of the constitutional synthesis is a normative one, although it pays attention to the specific situation of the EU, where it proceeds, namely, to the pluralistic supranational (vertical perspective) and national (horizontal perspective) institutions dressed in different degrees of democratic credentials75. The institutional pluralism underpinned by the two perspectives generates ‘a common constitutional field’76 which is interpretative in nature as it consists of horizontal as well as vertical sets of constitutional norms. What is of special value is the reconstruction of the constitutional synthesis’ work that starts with a ‘transfer of democratic legitimacy from national constitutions [national constitutional norms] to the European Union’77, that is, to this theoretical place which Habermas has recently depicted as a solution to the global unbalance of powers. The analyses of how the normative synthesis proceeds may then be useful for depicting the problems at which the Habermasian halfway solution may arrive at. Interestingly, in the theory of constitutional synthesis, the most important element that makes the synthesis increasingly dynamic, seems to be basically the horizontal relations among the legitimised norms of particular constitutions of the Member States, not the vertical relations between the Court of Justice of the European Union and the other supreme courts of the Members States, as it is broadly depicted in the state of the art. This is so because the idea of normative synthesis relates to the articulation of what is normatively common to all constitutions, vide to certain constitutional norms. However, following the analyses in Chapters II and III, one may notice that the simple generalisation of norms does not come here into play because, in every constitution, there is an ethical

75 John Erik Fossum, Augustín José Menéndez, The Constitution’s Gift, p. 11. 76 Ibidem, pp. 15, 46; compare also Stephan Bredt, “The European Social Contract and the European Public Sphere”, European Law Journal, Vol. 12, No. 1, 2006 (pp. 61–77), here pp. 70–71. 77 John Erik Fossum, Augustín José Menéndez, The Constitution’s Gift, op. cit., p. 11.

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fibre imprinted, and without the (Euro)citizens’ legitimation, it cannot be either just wiped away or transferred from one to the other national constitution or deemed the common. And these arguments seem to slip slightly from Fossum and Menéndez’s attention78. Therefore, the harmonisation of national law raises the tensions between what is particular and what is more general in the normative content of each Member State’s constitution. It poses, then, the following question: What does the ‘common’ of national constitutions of Member States, that is, the ‘hard core’ of European constitutional law mean in philosophical terms? If its character is not axiological but normative, then, is not this constructed79? If it is so, then, the more the constitutional synthesis proceeds, the more the harmonisation of the normative content proceeds, and, as a result, the more democratic authorisation on the part of citizens is needed, especially when the normative ideal of a common constitutional law remains, confronted with the dynamic of synthesis, the vague slogan unsupported by the European public spheres. Goldoni is right again, when he states that ‘constitutionalism (…) has also been understood as a public process of constituting institutions which make possible for the people to govern themselves’80. And people govern themselves in order to cope with disagreements as well as through coping with contestation and disagreement.

78 Compare Marek Zirk-Sadowski, “Tożsamość konstytucyjna a prawo europejskie”, Analizy natolińskie, Vol. 53, No. 1, 2012 (pp. 1–34); www.edu.natolin.pl. 79 Is not the specific construction by the ECJ of the ‘common’ constitutional yardstick the object of his examination—its ‘vertical’ recognition of its credentials with regard to supreme courts of Member States as well as making decisions under cover of principle of proportionality that affect the substantial content of Union law? See Augustín José Menéndez, “A Proportionate Constitution? Economic Freedoms, Substantial Constitutional Choices and Dérapages in European Union Law”, op. cit., especially pp. 73, 102–113, 120, 127. See, ibidem, p. 124: ‘The obstacle conception [to the exercise of any economic freedom of anybody, including a non-discriminatory one] implies a transcendental yardstick of European constitutionality, emancipated from national constitutional law, and mysteriously derived by the Court [ECJ] from the rather dry and concise literal tenor of the Treatises. This dis-anchoring is at the core of the “legitimacy” crisis of the European Union, and call for either a rolling back of integration to render the old constitution of discrimination sustainable, or a federal leap through democratic constitution-making’. Naturally, the use of the term ‘transcendental yardstick’ with regard to Union law calls for a separate explanation—a very careful one, I am afraid. 80 Marco Goldoni, “The Gifts of Synthesis. Integration and Constitutionalisation”, op. cit., p. 15.

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In addition, the processes of applying the law require certain kinds of constitutional argumentation81. This, on one hand, puts forward the requirement of the wide scope of the institutional interpretative infrastructure—from the legislature (and its statutes) upward till the constitutional courts and their review of the constitutionality of different laws. The system of law itself, as the utterance of universalisable normative claims, due to the democratic procedural requirements, generates the diversity of institutional interpretative work82. With regard to my analyses provided in Chapters II and III, I would rather state that the institutional interpretative work interacts with the sphere of the abstract political culture. The abstract political culture is supposed to leave a legitimation imprint on the constitutional culture, which is in need of democratic credentials. On the other hand, the constitutional culture is supposed to underscore the deontological dimension of political morality as the core moment of an abstract political culture, both taking into account, with diverse emphases, the common purport, namely, the best interpretations of the universalisable normative claims. In that very regard, Mattias Kumm speaks about ‘constitutionalism beyond the state (CBS)’ which ‘insists on the central role of principles of political morality’83. This issue is quite relevant. The interactions between the constitutional culture and abstract political culture settle the deontological reasoning within the political institutions, which, from the organisation-theory-based institutional approach, comes to the fore as a basic trait of the said institutions84, if we conceive of them 81 John Erik Fossum, Augustín José Menéndez, The Constitution’s Gift, op. cit., p. 33. 82 Johan P. Olsen, Governing Through Institution Building, op. cit., p. 87: ‘The ideas of one resource of authority and power (the people), one dominant channel between rulers and the ruled (the electoral channel), and one single central authority (the legislature) shaping politics and society in an orderly and coherent way are unlikely to capture the complexity of contemporary democracies’. 83 Mattias Kumm, “The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty”, op. cit., p. 268. 84 Johan P. Olsen, Governing Through Institution Building, op. cit., pp. 38–39. Kumm argues that there is no legal argument whereby the thesis of the national constitutional supremacy (NCS) should prevail over the thesis of European constitutional supremacy (ECS) or, the other way round, and therefore, in fact, an answer is to be found in the design of the political setting with which, and within which, the courts—as certain kinds of institutions established within the framework of power division— interact (Mattias Kumm, “The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe Before and After the Constitutional Treaty”, op. cit., p. 283). In turn, the deontological constitutional debates between constitutional culture and abstract political culture qua shaping political morality come to the fore. From this,

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in democratic terms. Therefore, I do agree that only evolutionary, transformative processes come into play here, because within the plurality of the interpretative institutions, any change in the legal system must be translated into deontological codes of reasoning, and further, into standards of appropriate conduct, and into rule-driven behaviour as topoi of the discursive design of institutions, yet not institutional deliberative engineering. Accordingly, these time-consuming processes may generate institutional identity formations that, in turn, would sustain such institutional functioning which is oriented at supporting a normative, democratic institutional framework. All of this is supposed to proceed but in collective processes of mutual learning and identity-shaping, and all of it seems viable only under the condition of setting the previously highlighted quasi-autonomy of inclusive and discursive political institutions (securing their self-reflexive functioning within the normative democratic framework). Fossum and Menéndez seem to acknowledge the institutional logic and, as I understand the purport of their theory, the main attempt is to convince the reader that not only is a revolutionary route to the constitution-making conceivable and viable but also a less radical, though more time consuming, one, that is, the evolutionary dynamics of institutionalisation may find its way85. However, I would like to address an important quibble: evolutionary constitutional dynamics presupposes not a prepolitical common culture, as Fossum and Menéndez affirm, but it presupposes, quite on the contrary, constructing the abstract political culture through public debates held in multiple public spheres. This difference is of great relevance. The common prepolitical culture would stand for an enabling condition of the constitutional moment, but only whilst entering the revolutionary road of the constitutionalisation process, because it means, in fact, the shared ethical selfunderstanding, of which we cannot conceive in the case of so pluralistic a polity as the EU86, and which, further, constitutes a conceptual challenge for the normative it follows that the power of universalisable normative claims under the constructive interpretations made here and now would come to voice. 85 Fossum and Menéndez indicate three constitutional dynamics: constitutional transformation (constitution-making), transformative constitutionalisation and simple constitutionalisation, John Erik Fossum, Augustín José Menéndez, The Constitution’s Gift, op. cit., pp. 28–34. 86 This is also the reason why I do not agree with Amanda Perreau-Saussine’s reading of Kant’s idea of ius cosmopoliticum as founded on the ethical community. Her interpretative proposal does not seem to contribute towards developing a viable approach to the said law on the global scale; Amanda Perreau-Saussine, “Immanuel Kant on

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theory of a democratic constitution in general. The evolutionary dynamics, then, is not only more time-consuming but also more institutionally absorbing in terms of (a) the engagement in the cooperative interpretative endeavour (institutional debates) and (b) providing support for the institutional intersections. This is the reason why, as, on the other hand, Fossum and Menéndez succinctly state, the more the constitutional synthesis proceeds, the deeper and wider the democratic demands proceed. Therefore, taking the above for granted, the evolutionary dynamics tends to open the constitutional field for citizens, while the normative synthesis proceeds, and thus a derivative—from national constitutions—legitimation of the common constitutional law continues to diminish. If the evolutionary dynamics is to remain on its trajectory, then it must work up specific institutional intersections that would animate public justifications and reflect them in the abstract political culture, breeding this way the constitutional culture in the democratic credentials. This is a necessary requirement that unveils its imprint on the theory in question, because ‘democracies require both institutions that support order and stability, and institutions that support innovation and change. (…) [Therefore,] the task of democratic government is not to maximize change. It is to balance order and change’87. The exhaustively discussed ‘two-track model’ of deliberative democracy also renders necessary the other direction of discursive communication, notably, from the constitutional culture as the collective endeavour of elaborating the best interpretations of universalisable normative claims through public justifications (institutional intersections) to lifeworlds steeped in the democratic-discursive ethos. It brings about ‘integrative processes involving the political construction of common identities, purposes, norms, understandings, resources, and institutions’88. These integrative processes are especially relevant for the construction of a selfreflexive political community. (iii) The requirement of strong democratic credentials stems from the democratic procedural conception of a constitution; hence, as a result, the constitution may contain only “those action norms that meet with the highest standards of democratic legitimacy”89 make it possible that ‘citizens can clearly see

International Law, in: Samantha Besson, John Tasioulas (eds.), The Philosophy of International Law, Oxford University Press, Oxford, New York, 2010, pp. 68–70. 87 Johan P. Olsen, Governing Through Institution Building, op. cit., p. 120. 88 Ibidem, p. 39. 89 John Erik Fossum, Augustín José Menéndez, The Constitution’s Gift, op. cit., p. 25.

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themselves as authors of the said norms’90, and ‘therefore a European social contract has to be based on the individual citizens’91. Otherwise, the normative constitution does not exist, as is the case of the EU, which may vaunt the constitution in both sociological meanings, but not the normative one92, because Eurocitizens cannot ‘clearly see themselves as authors’ of the European constitution and ‘there is a democratic problem, at least if Weber is right, that a viable polity is impossible if the ruled do not voluntarily submit to the authorities because they are perceived as normatively acceptable’93. The normative project may hardly be deemed under its interpretative construction foremost for the thinness of actual European public spheres94 and the lack of really European institutional intersections wherein opinion-formation interacts with will-formation in public justifications95. In

90 Ibidem, p. 24; Augustín José Menéndez, “The European Democratic Challenge: The Forging of a Supranational ‘Volonté Générale’”, op. cit., p. 278: ‘the EU can only exercise its powers legitimately if its institutional structure and decision-making processes are sufficiently democratic, that is, if they ensure European citizens a sufficient degree of participation and influence over European affairs’. 91 Stephan Bredt, “The European Social Contract and the European Public Sphere”, op. cit., p. 69. Stephan Wernicke claims that ‘we are witnessing, parallel to the development of EU constitutional law, the emergence of a distinct and genuine “European social contract”’, Stephan Wernicke, “Au nom qui? The European Court of Justice between Member States, Civil Society and Union Citizens”, European Law Journal, Vol. 13, No. 3, May 2007 (pp. 380–407), here p. 382. 92 John Erik Fossum, Augustín José Menéndez, The Constitution’s Gift, op. cit., p. 27. 93 Johan P. Olsen, Governing Through Institution Building, op. cit., p. 83; Stephan Bredt, “The European Social Contract and the European Public Sphere”, op. cit., p. 62. 94 Thomas Risse vigorously argues with the statement claiming that, according to the survey data analyses, there are both ‘emerging European demos with majorities of EU citizens identifying with both their nation state and with Europe’ (Thomas Risse, A Community of Europeans? Transnational Identities and Public Spheres, op. cit., p. 60) and therefore ‘the complaints about the lack of a European demos are largely exaggerated’ (ibidem, p. 8). He indicates processes of the Europeanization of national publics (ibidem, p. 5); however, there is a serious problem highlighted by Hans-Jörg Trenz, namely, that any conceptualisation of European public spheres suffers the ‘methodological nationalism of media studies’, because the concept of public spheres has been tailored most of all to the concept of the state; Hans-Jörg Trenz, “In Search of the European Public Spheres”, op. cit., p. 7. 95 Augustín José Menéndez, “The European Democratic Challenge: The Forging of a Supranational ‘Volonté Générale’”, op. cit., p. 281: ‘Thus, the democratic legitimacy of the Union does not stem from the direct democratic participation of European

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this context, Menéndez proposes the concept of ‘the composite character of democratic legitimacy and, specifically the distinction of its three components: procedural legitimacy, substantive legitimacy and adjudicative legitimacy’96. The idea adds to the well-known and broadly discussed issue of the problem of ‘procedures designed to endure political representativeness’ as a basis for the democratic choice of the European judges97. Nevertheless, I think the problem remains best seen in dynamic terms. The more the normative synthesis proceeds, the deeper and wider the demand for democratic credentials becomes. The derivative legitimacy source of the European constitution law runs dry, which is not highlighted enough in the theory of constitutional synthesis itself. Therefore, the understanding of the sources of the common European constitutional law undergoes its reinterpretation as well. It seems to be visible in the ECJ’s ruling in Kücükdeveci98 concerning the interpretation of the principle of non-discrimination on the grounds of directive 2000/78 in which the source of the European law invokes the sources of the national constitutional laws99. The Grand Chamber, first, invoked (para 3) the general principles of the EU, remaining under the protection of ‘the European Convention for the Protection of Human Rights and Fundamental Freedoms’, which is the ‘basis’ also of the said directive, and, second, deemed that these basic principles ‘result from the constitutional traditions common to the Member States, as general principles of Community law’. In other words, it was stated that the general principles pertain to the common constitutional traditions of the Member States and, as such, are under the protection

96 97 98

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citizens in supranational decision-making processes, but from the fact that the wills aggregated through such processes are themselves the result of democratic decisionmaking procedures at the national level’. Ibidem, p. 283. Ibidem, p. 284. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62007J0555: EN:HTML. On this ruling compare: Karolina M. Cern, Bartosz Wojciechowski, „Święty Graal dziedzictwem przyszłości, czyli o poszukiwaniu wspólnej kultury prawnej w praźródłach prawa unijnego” [Saint Graal as the Legacy of the Future. On searching the common legal culture in presources of the Union Law], Principia, Vol. LVII–LVIII, 2013 (pp. 185–210); in the text above I refer in some way to the main thesis of the said article (but not in what regards analysis of the ruling in question). On the sources of international law see Samantha Besson, “Theorizing the Sources of International Law”, op. cit.

of the said Convention. Third, (in para 20) ‘the Court has held that that directive does not itself lay down the principle of equal treatment in the field of employment and occupation, which derives from various international instruments and from the constitutional traditions common to the Member States, but has the sole purpose of laying down, in that field, a general framework for combating discrimination on various grounds including age’. And from that follows that although, in this directive, there is no precise formulation of the said non-discrimination principle, it is well-rooted in the common constitutional traditions, which is, after all, laid down in the said directive as the general framework for its more in-depth interpretation. Finally, the Grand Chamber stated that it ‘has acknowledged the existence of a principle of non-discrimination on grounds of age which must be regarded as a general principle of European Union law’. From this, it eventually follows that besides the said principle of non-discrimination (a) under the protection of the Convention and (b) rooted in the common traditions of constitutional law, what is the most paramount issue here is (c) that the common constitutional traditions serve as the sources of the primary law under (re)interpretation. In other words, the Court opened the sources of the primary law of the EU. In so doing, one may say, it affirmed the insufficiency of previous democratic credentials, that is, the insufficiency of the derivative legitimacy of the common constitutional law of the EU that has been recalling the existing constitutional provisions (norms) of the Member States. As stated above, the simple generalisation of constitutional law is severely limited; as in every constitution, there is an ethical fibre imprinted as well, and the Court of Justice of the European Union is by no means democratically empowered to articulate the self-understanding of the polity (the EU), especially with regard to the fact that the concept of the self-understanding of the polity relates to the self-understanding of the citizens as also authors of the law of the polity, and thus, it should be pronounced by them exactly. The Court’s ruling, then, is most appropriately read in terms of (a) launching the debate on the normative future-oriented project (in terms relating to Fossum and Menéndez’s theoretical proposal as the regulative ideal), the debate on the normative conception of the constitution of the EU, (b) which should be held among the citizens of the Member States as Eurocitizens, because the national constitutional traditions of the Member States have emerged—in the process, in which the EU has been emerging as a united polity, that is, while the constitutional synthesis has been proceeding—as the coveted sources of democratic legitimacy for the common European constitutional law. If this is so, then the ECJ has met the demands imposed on the courts by Mattias Kumm that the courts in the EU should

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initiate and animate constitutional debates100 on these traditions. Alas, initiating the debate is not the same as debating the issue while involving the Eurocitizens themselves, which is what is at stake here. In addition, it may be stated that the ECJ triggered the possibility of the profound European horizontal constitutionalisation, which should lead through public justifications of the common constitutional traditions to their interpretative constructions, resulting at least in the interpretative construction of a common constitutional tradition of EU law. The common legal tradition of the EU is to be understood in constructive terms especially when one takes for granted Mark Van Hoecke’s judgement that ‘there are recent cultures that lack such a tradition. This, for example, is the case with European Union law and European Human Rights law’101. In accordance with the analyses in Chapter II, the core of what is common to the constitutional traditions of the Member States would be interpretatively constructable only with regard to the future-oriented normative project, which amounts to conditions set by the counterfactual yardstick102. Therefore, what these constitutional traditions have had in common so far will be revealed in the collective endeavour of elaborating this normative project (of the common constitutional law). The criterion of the interpretation, set by the counterfactual yardstick, is a normative one and invokes the idea of inclusiveness supported by discursiveness: the better an interpretation is, the more diverse traditions will have in common in deontological terms, and thus, the better the interpretation of the common constitutional tradition is, the wider will be the openness of the common future for Europeans103. This constructive task, in order to meet the procedural democratic 100 Mattias Kumm, “The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe Before and After the Constitutional Treaty”, op. cit., p. 292. 101 Mark Van Hoecke, “European Legal Cultures in a Context of Globalisation”, in: Tomasz Gizbert-Studnicki, Jerzy Stelmach (eds.), Law and Legal Cultures in the 21st Century. Diversity and Unity, a Wolters Kluwer business, Warszawa, 2007, p. 83. 102 Compare Augustín José Menéndez, “A Christian or a Laïc Europe? Christian Values and European Identity”, Ratio Juris, Vol. 18, No. 2, June 2005 (pp. 179–205). I agree with Menéndez statements that ‘the common constitutional traditions (…) are part of a process of political integration [of the EU]’ (ibidem, p. 187) and therefore ‘it is difficult to avoid favouring an open-ended and conscious process of constitutionmaking, where the whole constitutional edifice of the European Union and the member states could be changed in such a way as to re-establish their democratic legitimacy’ (ibidem, p. 190) also due to ‘the normative aspirations concerning who I/we want to become’ (ibidem, p. 193). 103 Karolina M. Cern, Bartosz Wojciechowski, Święty Graal dziedzictwem przyszłości, czyli o poszukiwaniu wspólnej kultury prawnej w praźródłach prawa unijnego, op. cit.

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requirements, must involve Europeans, European public spheres and set anew—or rather, for the first time—institutional intersections through which the said construction may come true. All of this must happen this way, because, as Van Hoecke discerns, ‘here the tension is rather between old and new ideas than between different traditions’104. This tension, as I understand the ruling in the Kücükdeveci case, is set in motion and addressed to the citizens of the EU.

3. External Dimension of the EU’s Constitutionalisation The abovementioned fundamental premises illustrating that in every process of democratic constitutionalisation, what come to the fore are interpretations of universalisable normative claims which can be deemed as the best ones (always only here and now) only if they may be comprehended as the upshots of cooperative constructivist enterprise imposing the demand of increasing inclusiveness, constitute the reason why the ECJ’s ruling in Kadi I105, in which the Court stated that ‘by virtue of the [its] exclusive jurisdiction’ it is dedicated to ensuring the observance of ‘the autonomy of the Community legal system’ (para 282), does not sound entirely convincing to many legal philosophers106. The point is, then, that the ECJ did not take the dialogical position in the wide international/global dimension and was satisfied with circumscribing the legal autonomy of the EU in its ruling107. 104 Mark Van Hoecke, “European Legal Cultures in a Context of Globalisation”, op. cit., p. 95. Compare Martti Koskenniemi, “International Law in Europe: Between Tradition and Renewal”, The European Journal of International Law, Vol. 16, No. 1, 2005 (pp. 113–124). 105 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62005J0402:EN: HTML. 106 Gráinne de Búrca, “The ECJ and the International Legal Order: A Re-evaluation”, op. cit., pp. 140–141; de Búrca directly takes a soft constitutional stance and bravely writes that in Kadi I, ‘the ECJ could have insisted on respect for basic principles of due process and human rights within the existing UNSC listing and de-listing process. By failing to do so, the Court lost an important opportunity to engage in dialogue about due process as part of customary international law, a dialogue which is relevant to international community as a whole not just the European Union (…) The ECJ not only failed to influence an important international debate on an issue which currently affects every member of the UN, but it also rejected an opportunity to develop channels of mutual influence between the EU and the UN legal orders’. 107 Compare Juliane Kokott, Christoph Sobotta, “The Kadi Case – Constitutional Core Values and International Law – Finding the Balance”, The European Journal of

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With this in mind, I contend that the EU is not only a polity ‘in-between’ but should remain the polity ‘in-between’ if it is to meet the democratic ‘nature’ which is ‘to be unfinished and in the process of becoming rather than static’108. Accordingly, the same applies, in my opinion, to the European law viewed as undergoing processes of democratic constitutionalisation: the more self-constitutionalisation of the said law proceeds, the more dialogical its position should be in the external dimension, notably in the global field of international constitutional law109. International Law, Vol. 23, No. 4, 2012 (pp. 1015–1024), here p. 1017 ‘(…) the judgement of CJEU [the Court of Justice of the European Union] in Kadi has been associated with a dualist conception of the interplay between the international and the Union legal order. It is seen as underscoring and defending the autonomy of EU law’. The phrase ‘a dualist conception’ or ‘a dualist approach’ refers to a situation generated in specifically ‘multilevel systems. In such systems it is possible that the level of protection of fundamental rights guaranteed by a higher level does not attain the level of protection the lower level has developed and considers indispensable. Refusing to accept the primacy of the higher level can be a proper means of responding to this deficiency’ (ibidem, p. 1018). 108 Johan P. Olsen, Governing Through Institution Building, op. cit., p. 138. 109 As the interpretation of the survey data concerning the European identity underscores, one of the specific elements of the emerging abstract political culture of the EU is binding the EU to holding onto cosmopolitan values, among other so-called modern values, like ‘peace, human rights, democracy, secularism’, Thomas Risse, A Community of Europeans? Transnational Identities and Public Spheres, op. cit., p. 52. The specific element of the European abstract political culture, in other words, articulates the vision of the EU as aspiring to come into an international/global dialogue on what is common to all human beings, what, in terms of relying on the survey data, is uttered as cosmopolitan values. In this context, invoking the phrase ‘international/global dialogue’ is not a contingent move, because the survey data show that the Americans, undoubtedly based on the same Western values which stem from the Western culture (understood as pertaining to lifeworlds, in this moment), may be recognised by Europeans either as an out-group, with reference to the ascribed preferences for using military means of conflict resolution in opposition to ‘civilian power’/ political means of conflict resolution as preferred by Europeans, or as an in-group in what concerns taking heed of democracy, peace and other ‘Western values’; ibidem, pp. 54–55. This ambivalence in recognition of Americans, while defining the identity of Europeans, indicates also the construction of the meanings of political values, that is, as precisely the ideals of the abstract political culture. See also: Päivi Leino, Roman Petrov, “Between ‘Common Values’ and Competing Universals—The Promotion of the EU’s Common Values through the European Neighbourhood Policy”, European Law Journal, Vol. 15, No. 5, September 2009 (pp. 654–671); finally, see also Ian Manner, “Normative Power Europe: A Contradiction in Terms?”, Journal of Common Market Studies, Vol. 40, No. 2, 2002 (pp. 235–58), here p. 252.

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These basic premises (heeding interpretations of universalisable claims, elaborated in the cooperative enterprise aiming at constructing constitutional norms supported by strong democratic credentials) represent the reason why I find highly disappointing the two shifts taken by Habermas in his most current books110. In my view, the German philosopher seems to obfuscate the most important claims that he has made himself, that he elaborated for decades, because the dialogical, resulting from the discourse principles position, has been replaced by the more liberal stance (in the sense of a stronger orientation towards the rule of law than popular sovereignty). This may be clearly seen in his claim for ‘artificially created norm[s] [that is human rights], at once compulsory and freedom-guaranteeing’111. The German philosopher, following Max Weber, over decades taught that the greater the scope of the legitimation of the law, the greater the stability of the legal political order would be as a result112. Thus, any current utilitarian calculation concerning the most wanted and desired outcomes cannot replace legitimate law-enactment or law-making. Any efforts to handle such important issues as the emancipation of those who are unequal before the law, who are not recognised as free and equal, in order to forge solid, entrenched legal and social relations based on equality, impartiality and freedom, cannot be conceived of as one stroke, because they may quite easily backfire and consequently collapse, solemnly deteriorating the situation that was intended to be improved. Legal constitutionalisation is in need of completion on the part of institutional constitutionalisation (increasing democratisation that entails an increment in the empowerment of citizens) that should stimulate, with regard to its intersections, horizontal constitutionalisation, generating ‘positive’ solidarity. Therefore, what must be distinguished is the urgent help required for those who suffer human rights violations, and future-oriented human rights education supported by democratic education that is oriented towards enhancing democratic-discursive competencies, due to the very profound precondition of Habermasian deliberative democracy, namely, the increasing processes of the incremental rationalisation of lifeworlds. 110 Here, I basically mean: Jürgen Habermas, Postnational Constellation, translated by Max Pensky, The MIT Press, Cambridge, Massachusetts, 2001, The Divided West, trans. Ciaran Cronin, Polity Press, Cambridge, Malden, MA, 2008, The Crisis of The European Union. A Response, trans. Ciaran Cronin, Polity Press, Cambridge, Malden, MA, 2012. 111 Jürgen Habermas, Postanational Constellation, op. cit., p. 122. 112 Compare Jürgen Habermas, The Theory of Communicative Action, Vol. 1, trans. Thomas McCarthy, Beacon Press, Boston, 1984, Chapter II Max Weber’s Theory of Rationalization, especially charges against utilitarianism.

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Second, Habermas seems to abandon the significant consequences of the principium of universalisation as well as of the principles of discourse applied to the theory of democracy, when his reading of Kant’s On Perpetual Peace leads him to the claim that ‘there is no need to interpret the goal of a constitutionalization of international law in terms of a world republic’113. He gives up the normative vision of the one political community that would have strong democratic support stemming from the citizens’ will, and replaces it with the vision equipped with the weakened normative force, wherein the democratic credentials of international constitutional norms are derivative of the national constitutional norms. Habermas underscores that the greatness of Kant’s innovative idea consists of ‘the transformation of international law (…) as a law of individuals’114; however, he concludes that ‘the global state of nations or world republic is the wrong model’115. The blade of my charge and philosophical disappointment cuts two strata off— the normative and pragmatic strata—and hits both of them. Although it seems to be 113 114 115

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Jürgen Habermas, The Divided West, op. cit., p. 123. Of course, what Kant intended, in fact, remains a riddle; on this issue see Amanda Perreau-Saussine, “Immanuel Kant on International Law”, op. cit. Jürgen Habermas, The Divided West, op. cit., p. 124. Ibidem, p. 134. Compare Jürgen Habermas, “The Constitutionalization of International Law and the Legitimation Problems of a Constitution for World Society”, Constellations, Vol. 15, No. 4, 2008 (pp. 444–455) and the debate over that in William E. Scheuerman, “’All Power to the (State-less?) General Assembley!’”, Constellations, Vol. 15, No. 4, 2008 (pp. 485–492) versus Hauke Brunkhorst, “State and Constitution – A reply to Scheuerman”, Constellations, Vol. 15, No. 4, 2008 (pp. 493–501). Most recently Habermas stated that ‘If one proceeds from the conventional premise that a world state enjoying a monopoly over the legitimate use of force is neither possible nor desirable, a dualistic conception of an international legal system comprising the law of peoples and the law of states seems unavoidable’, Jürgen Habermas, “Plea for a Constitutionalization of International Law”, op. cit., p. 6. Compare David M. Rasmussen, “Legitimacy, Sovereignty, Solidarity and Cosmopolitanism: On the Recent Work of Jürgen Habermas”, Philosophy & Social Criticism, Vol. 40, No. 1, 2014 (pp. 13–18), Arne Johan Vetlesen, “Comments on Jürgen Habermas’ Lecture ‘Plea for a Constitutionalization of International Law’”, Philosophy & Social Criticism, Vol. 40, No. 1, 2014 (pp. 19–23). Kjartan Koch Mikalsen writes critically, because opting for the Kantian league of states, in “Kant and Habermas on International Law”, Ratio Juris, Vol. 26, No. 2, June 2013 (pp. 302–324). Compare also highly inspiring article by David Ingram, “Reconciling Positivism and Realism: Kelsen and Habermas on Democracy and Human Rights”, Philosophy & Social Criticism, Vol. 40, No. 3, 2014 (pp. 237–267) and his comments on this ‘sceptical turn’ (ibidem, p. 248) producing the ‘legitimation gap’ (ibidem, p. 249).

sound to affirm—here and now—as a viable idea, the formation of an international constitution that derives its legitimacy from other ‘local’(‘national’or ‘supranational’) constitutions116, what Habermas does, although it lacks strong normative legitimation, because the normative power of the claims that may be used in a critical fashion lies in that they are always counterfactual in themselves117! And he appears to forget that such a dual legitimacy thesis (a direct legitimacy of the local constitution, and an indirect legitimacy of the global one), which he proposes in fact, refers to a no constitutional demos thesis118, and where there is no constitutional demos, there is no democratic polity. Thus, the normative power seems to escape Habermas in his recent writings, wherein he is more oriented towards the temporary solutions of current political problems than towards the strong philosophical legitimation of a (global/cosmopolitan) democratic polity119. The very conundrum of this halfway done normative proposal is as follows: For the sake of what is the expected international constitution, why should it invoke ‘local sovereigns’ (local ‘constitutions’ based on the highest democratic credentials)? In other words, Habermas’s pronouncement of the problem proves to be more pragmatic than normative, thus invoking, in this context, democratic constitutional polities as the source of the international constitution produces implausible, fuzzy argumentation. That is my point. The charge made by James Tilly against one of the ‘illegitimate trends’ in light of the constitutional democracy, 116 This is the interpretative stance on the European constitutional law made on the grounds of the theory of constitutional synthesis advocated by John Erik Fossum and Augustín José Menéndez in their Constitution’s Gift, op. cit. Though they explicitly underline that this source of the derivative legitimation of the European constitution is, to a considerable extent, limited and in order to sustain the democratic credentials of the said constitution, the constitutional synthesis must proceed through the democratisation of European public spheres that is greater in breadth and scope. 117 John Erik Fossum and Augustín José Menéndez, Constitution’s Gift, op. cit., p. 24. 118 J. H. H. Weiler, “Prologue: Global and Pluralist Constitutionalism—Some Doubts”, Gráine de Búrca, J. H. H. Weiler (eds.), The Worlds of European Constitutionalism, Cambridge University Press, 2012, Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Tokyo, Mexico City, p. 12. 119 Compare Robert Fine, Will Smith, “Jürgen Habermas’s Theory of Cosmopolitanism”, Constellations, Vol. 10, No. 4, 2003 (pp. 469–4870). In view of Fine and Smith ‘according to Habermas, democratic legitimacy simply is not possible for a political body that embraces everyone and therefore provides no particular foundation for collective identity or civic solidarity’; ibidem, p. 474. With that regard see Habermas articulating solidarity in precisely Hegelian terms in Jürgen Habermas, “Plea for Constitutionalization of International Law”, op. cit.

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which consists of a neat judgement that ‘global human rights regimes tend to favour the rights of private autonomy over public autonomy’120, perfectly applies to the issue in question. Taking the same normative focus in the public rights of all human beings all over the world, who are—under the requirement of the institutionalisation of discourse principles—also always citizens, stresses the necessity to pay the same attention to public rights and, consequently, to take care of the processes of democratisation in every ‘local’ polity. Furthermore, according to the founding thought of the abstract idea of autonomy, a cosmopolitan democracy—which is here at stake as a dimension complementing the processes of constructing the international constitutional law—should be ‘articulated in the public sphere in many parts of the world’121. Crucially, the 120

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James Tully, “The Unfreedom of the Moderns in Comparison to Their Ideals of Constitutional Democracy”, The Modern Law Review, Vol. 65, March 2002 (pp. 204–228), here p. 212. Erik Oddvar Eriksen, “Why a Charter of Fundamental Rights in the EU?”, Ratio Juris, Vol. 16, No. 3, September 2003 (pp. 352–73), here p. 353 ‘There is a tension between democracy and human rights, because so far the principle of popular sovereignty has only been made applicable to the rule of particular societies (…). This brings the nation state into a potential conflict relationship with other states. Human rights, for their part, no longer follow from democratic states’ self-legislation only (…). They also follow from international legislation under the direction of, among others, the UN, and enforced by special human rights courts. From a normative point of view this development is most welcome (…)’. However, Eriksen’s conclusion is that ‘yet the principle of popular sovereignty points to a particular society that autonomously governs itself, while human rights point to an ideal republic, and only with a cosmopolitan order— democracy at a supranational world level—can this opposition finally find its solution’; ibidem, p. 369. Compare also Etienne Balibar, “On the Politics of Human Rights”, Constellations, Vol. 20, No. 1, 2013 (pp. 18–26). David Held, Models of Democracy, Polity Press, Cambridge, 2007, p. 310. Thomas Christiano accentuates the role of international institutions as well; however, his proposal is based on democratic values as fundaments of those institutions; see Thomas Christiano, “Democratic Legitimacy and International Institutions”, in: Samantha Besson, John Tasioulas (eds.), The Philosophy of International Law, Oxford University Press, Oxford, New York, 2010. Although, generally, I sympathize with this view, I still cannot get rid of some quibbles about missing the deontological perspective while founding institutions on values. Values are the Versinnlichungen of norms, in the Heideggerian philosophical view, and, as such, they may support institutional functioning; however, institutions, or at least legal-political institutions, are guardians of the (deontological) normative power conferred by citizens, who are always also human beings, to the medium of law. Furthermore, the institutional constitutionalisation proclaimed here indicates the institutional intersections as the

most urgent job ahead is uncovered here as constructing and sustaining global public spheres, notably, the global institutional constitutionalisation processes, where the onus rests on the institutional intersections enabling and maintaining the public power of judgement in order to unleash the public use of reason, that is, to provide the construction of public justifications, including judiciary institutional interpretative work122. If the problem caused by the current state of affairs relating to international law is only that the latter is dependent on the power relations between states or other kinds of polities123, then what is significant is that there are no solid regulations safeguarding the equality of the parties of the international relations. Thus, this problem is to be uttered but in terms of power stabilisation, and no claims to international constitutionalisation sound justified. Therefore, ‘the problem of asymmetrical bargaining’124 among states, resulting from the current political state of affairs, wherein ‘the states play the role of an oligarchy’125, is broadly seen as one of source of the constructions of public justifications, for which neither interests nor values may ‘trump’ basic rights and—particularly the global context, where economic and/or financial players play prominent roles—founding such institutions on values seems to be too risky because they may be quite easily translated into the language of outcomes delivered by the well-off financial players. And the third point I would like to put forward here is that values are interpreted differently in the different lifeworlds. In other words, the international/global institutions erected upon values, even if they are claimed to be democratic, would be too prone to the local interpretational appropriation of them instead of setting them in motion for international and/or global dialogue. 122 The role of international institutions as envisioned by Ulrich Beck is not incorrect but is not sufficient either; compare Ulrich Beck, “Critical Theory of World Risk Society: A Cosmopolitan Vision”, Constellations, Vol. 16, No. 1, 2009 (pp. 3–22), here p. 19. I do agree with Eriksen who states that ‘Intermediate institutions in a global democratic world order—regional bodies capable of collective action between the UN and the nation state—are needed to be able to establish democratically controlled institutions to cope with global problems. That is why regional units such as the EU are normatively attractive’, Erik Oddvar Eriksen, “Why a Charter of Fundamental Rights in the EU?”, op. cit., p. 370. 123 Jürgen Habermas, The Divided West, op. cit., p. 120. 124 Thomas Christiano, “Democratic Legitimacy and International Institutions”, op. cit., p. 126. 125 Daniele Archibugi, “From the United Nations to Cosmopolitan Democracy”, in: Daniele Archibugi, David Held (eds.), Cosmopolitan Democracy. An Agenda for a New World Order, Polity Press, Cambridge, Oxford, Cambridge, MA, 1995, p. 129. William E. Scheuerman provides a critical though favourable examination of

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the most formidable obstacles against taking the idea of a world-republic seriously. As some thinkers rightly underscore, any local constitutionalism relies on the argument from a ‘state self-interest’126, and thus the power stabilisation is highly advantageous for the pursuit of different particular national interests. Naturally, Habermas had been calling for ages to override the argument from interests in the name of deontological morality (universalisable normative claims), quite like Dworkin. Nonetheless, his recent writings strongly supporting the significance of the idea of human rights seem, with regard to the argumentative strategy provided by the German philosopher and presented in the course of this book, to detract from the normative power of his own argumentation that he built for decades. On the other hand, the inner-state problems also come to light in the postnational and post-sovereign era. Very often, ‘the consent and the lack of consent of some states does not reflect the interests of most people in those states’127. This is so also because of the serious discrepancies between ‘the formal authorities of the state’ and rulers. The latter may be meant, first, as global actors that push the ‘world economy’128, unbound by the normative imperatives, and thus put the normative power of the states in question, especially, in debates dedicated to sustaining democracy and the vital issues of international or even global politics129. Second, if we add to the said argumentation that international and supranational organisations—which are not equipped with the strongest democratic credentials until now—start to play the main role in defining and carrying on international

‘Archibugi’s and Held’s vision of cosmopolitan law’ in “Cosmopolitan Democracy and the Rule of Law”, Ratio Juris, Vol. 15, No. 4, December 2002 (pp. 439–457). 126 Compare David Held, “Democracy and New International Order”, in: Daniele Archibugi, David Held (eds.), Cosmopolitan Democracy. An Agenda for a New World Order, Polity Press, Cambridge, Oxford, Cambridge, MA, 1995, p. 99, 104 n. 127 Thomas Christiano, “Democratic Legitimacy and International Institutions”, op. cit., p. 124. In addition, it may be stated that ‘all the states on the planet represent peoples imperfectly in two different senses: on the one hand, they can represent more than one people (…). On the other, states do not necessarily represent a people in toto,, in the sense that the members of that people may be citizens of more than one state (…)’, Daniele Archibugi, “A Critical Analysis of the Self-determination of Peoples: A Cosmopolitan Perspective”, Constellations, Vol. 10, No. 4, 2003 (pp. 488–505), here p. 491. 128 David Held, Models of Democracy, op. cit., p. 296. 129 David Held, Anthony McGrew, David Goldblatt, Jonathan Perraton, Global Transformations. Politics, Economics and Culture, Polity Press, Cambridge, 2001, pp. 32–86.

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relations, and that they even ‘have become “law-makers”’130 besides the states, or even instead of the states, for which the situation is inextricably linked with the incremental lack of democratic credentials of any formulation of international laws, then it so happens that not the pure stabilisation of powers but the impartiality of international norms directed at citizens to be free and equal before the law must be regarded as the critical issue at stake. Discerned as above, the problem discloses its normative countenance. The said ruling (in Kücükdeveci) regarding the recognition of every individual as free and equal before the law, and further, regarding such a recognition within social relations, leads to the second cluster of problems following from the considerations put forward in the previous chapter. Notably, it brings about here the two moments of the validity of the law: the one concerns aspects of law legitimation and the other concerns aspects of law application; however, both indicate the need for an institutional constitutionalisation. The freedom and equality of each individual may be affirmed and entrenched only if the interpretations of laws and their applications come hand-in-hand with the same degree of democratic credentials. This means that the said interpretations and applications are underpinned by the constitutional culture correlated, or, to some degree, harmonised with the abstract political culture. Constitutional laws as abstract and general provisions (with the laws of law-making at their heart) are always in need of interpretation, that is, institutional interpretations that never proceed in the void of (un)recognised meanings, but, on the contrary, they proceed within the constitutional field, generating constitutional argumentation. The suggestion that the target normative solution could be conceived of as an enactment of the international constitution that would draw its derivative, although sufficient enough, legitimation from the ‘local’ constitutions, underpinned by strong democratic credentials, seems to me to be missing the complicated nature of the legal system and order. This is so because ‘there is a problem of interpretation of the existing norms’131 of the international law; moreover, there is a problem regarding the international legal order within which the ultimate interpretative authority is not decisively settled, which the case Kadi I exemplifies. The appropriate functioning of such an international law constitution, and the legal system resulting from it, would sooner or later oblige the incorporation of, 130

Daniel Halberstram, “Local, Global and Plural Constitutionalism: Europe Meets the World”, op. cit., pp. 153–154. 131 Daniele Archibugi, “From the United Nations to Cosmopolitan Democracy”, op. cit., p. 122.

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for example, secondary laws132 organising the interconnections within the horizontal relations among constitutions ‘legitimising’ the international-national law, and further, also render inextricable at least bits and pieces of the institutional order oriented towards any kind of law ‘harmonisation’, which would be necessary for providing and safeguarding the equal freedom of its addressees-citizens. Even if it is to be claimed that under the umbrella of the monist idea of the international constitutional law, the institutional interpretative pluralism may proceed, or rather, the more it is to be claimed, the more democratic deficits are to increase in such a (global) polity, which Fossum and Menéndez depict and explain very neatly in relation to the processes of European self-constitutionalisation in their theory of constitutional synthesis. And this is the outcome of the dual-legitimacy thesis which refers, in fact, to the no constitutional demos thesis. Of course, the increase of a democratic deficit may be overcome only and only if, following Fossum and Menendez’s normative theory, the legal constitutionalisation would be significantly complemented by the dimension of institutional constitutionalisation. The processes of the constitutionalisation of international law, with the strong normative underpinnings demanding that citizens be able to understand themselves as authors of the said laws, which would be viewed as a kind of normative yardstick, do not necessarily render the direct form of democracy the best solution to be pursued in the first step. Thus, from the perspective of a more dynamic vision of the said issue, it is conceivable that the criticised halfway solution, indicating the international constitution as deriving its credentials from the established constitutional democratic polities-members, evolutionarily transforms itself into a more democratic constructivist polity, for which diverse institutional intersections would play a crucial role. Here, I refer to such institutional intersections that would enable the participants in worldwide public spheres to take part in the constructions of justifications of legal-political decisions, and through these constructions, participate in the construction of an abstract global political culture. Due to the two-track model of deliberative democracy, such international-global settings would trigger (or even forge) the incremental processes of rationalisation at both complementary levels, that is, at the global-legal and worldwide levels. These are processes of rationalising particular lifeworlds and cultures. As Eriksen rightly states, ‘deliberative politics is seen as reflexively organized learning process’133; 132 133

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On this issue, compare Samantha Besson, “Theorizing the Sources of International Law”, op. cit., pp. 178–179. Erik O. Eriksen, “Reflexive Integration in Europe”, in: Erik Oddvar Eriksen (ed.), Making the European Polity. Reflexive Integration in the EU, op. cit., p. 17.

therefore, conceiving of international law in the global dimension shall start by launching such learning processes, not by imposing whatever on whoever but by enabling democratically legitimate decision-making. In other words, taking citizens seriously demands some more courageous normative visions of them as the masters of the constitution, according to the analyses from Chapters II, III and IV, and such visions cannot proceed with the Habermasian halfway solution that depicts every individual as free and equal to any other, but only in a local (here, European or at least Western), unguarded and uncertain dimension. In order to change the world, one needs a normative yardstick, that is, a counterfactual yardstick, to put it in critical motion what the world is and how it should be. But the normative yardstick critically operates through threefold transformative time-consuming processes.

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