Recent work in democratic theory has seriously questioned the dominant pluralist model of self-government and recommended the adoption of a ‘deliberative’ conception of constitutional democracy. With this shift in basic political theory, the objection to judicial review, often voiced in jurisprudential theory, as an anti-democratic instance of paternalism merits another look. This paper argues that the significant differences between four recent theories of constitutional review—put forward by Ely, Perry, Dworkin, and Habermas—are best understood as arising from different positions taken on (...) two cross-cutting distinctions that have been inherited from Locke and Rousseau: democratic processes as aggregative versus deliberative, and democratic legitimacy as substantive versus procedural. A reconstruction and critical evaluation of the four theories of judicial review, with special emphasis on their underlying theories of constitutional democracy, yields a set of criteria for adequate accounts of democratic processes, democratic legitimacy, and their relation to judicial review. I argue that the best understanding of constitutional review is yielded by Habermas’s theory because it combines a conception of popular sovereignty in terms of the collective process of citizens’ deliberative attempt to institutionalize the general will through law, with a resolutely proceduralist conception of democratic legitimacy. However, I also argue that some of the specific proposals Habermas makes concerning the institutionalization of constitutional review in an independent, non-accountable judiciary and the scope of duties for such a body need to be modified in the light of his overriding commitments to participatory deliberative processes and procedural legitimacy. (shrink)

Neither Habermas nor his communitarian and poststructuralist critics sufficiently explore the non-linguistic, playful, and performative dimensions of contemporary public spheres. I argue that the approaches of Castoriadis and Touraine can inform a theoretical understanding of the history and current resonance of this public sphere of performance. Their concepts of the social imaginary, the autonomous society, and subjectivation highlight the role of fantasy, images, individualism, and other non-rational factors in late modern public life.

Critics of Jürgen Habermas's theory of communicative action argue that he has failed to recognize the extent to which moral argumentation is grounded in particular historical contexts, cultural traditions, collective identities, or social lifeworlds. Although he has engaged in a series of strategies aimed at acknowledging the role of particularistic considerations without abandoning his primary commitment to ethical universalism, Habermas has not succeeded in meeting all of the objections of his critics. This paper treats the contradiction between formal and substantive (...) rationality, which lies at the heart of the debate, as an empirical phenomenon within the social world. It argues that the antinomy of formal and substantive rationality plays a central role in historical processes of social change. Through critical argumentation, social actors deliberate on contradictions among strategic, moral, and ethical standards of validity, and they struggle to resolve these contradictions through collective action and the reform of laws, policies, and institutions. Examples are drawn from US political history to substantiate the argument, and some questions are raised for further research. (shrink)

In Between Facts and Norms, Habermas articulates a system of rights, including human rights, within the democratic constitutional state. For Habermas, while human rights, like other subjective rights have moral content, they do not structurally belong to a moral system; nor should they be grounded in one. Instead, human rights belong to a positive and coercive legal order upon which individuals can make actionable legal claims. Habermas extends this argument to include international human rights, which are realised within the context (...) of a cosmopolitan legal order. The aim of this paper is to assess the relevance of law as a mechanism for securing human rights protection. I argue that positive law does make a material difference to securing individual human rights and to cultivating and augmenting a general rights culture both nationally and globally. I suggest that Habermas' model of law presents the most viable way of negotiating the tensions that human rights discourse gives rise to: the tensions between morality and law, between legality and politics, and between the national and international contexts of human rights protection. (shrink)

Universalism can be religious or secular; within the category of secular universalism, a distinction can be made (especially in China) between universalism focused on ‘universality’ or the universal validity of certain ideas and universalism focused on ‘generality’ or the general extension of certain ideas. Within the category of universality-based universalism, ‘value universalism’ holds one or some values to be universally valid and ‘culture universalism’ holds a certain culture or a certain way of ranking various values to be universally valid. Within (...) the category of ‘value universalism’, a distinction can be made between ‘dialogue-oriented universalism’, which argues for the priority of the right to communication over other rights and ‘monologueoriented universalism’, according to which one subject can unilaterally decide what is of universal validity for all. Not only ‘monologue-oriented universalism’, but also ‘dialogue-oriented universalism’ can be understood in a Euro-centrist way; there is thus a distinction between West-centrist and non-West-centrist varieties of universalism. The key to avoiding West-centrist universalism while upholding universalism is to make a distinction between essentialist universalism and constructivist universalism, and to see what is universally shared by all relevant parties as something to be constructed through the process of ‘Verkehr’ in Marx’s sense that is informed by the process of ‘Kommunikation’ in Habermas’s sense. (shrink)

In this article I confront Jürgen Habermas' deliberative model of democracy with Claude Lefort's analysis of democracy as a regime in which the locus of power remains an empty place. This confrontation reveals several structural similarities between the two authors and explains how the proceduralization of popular sovereignty provides a discourse-theoretical interpretation of the empty place of power. At the same time, Lefort's insistence on the open-ended nature of the democratic struggle also points towards an unresolved tension at the core (...) of Habermas' model between the cognitive nature of deliberation on the one hand and the freedom of moral and political agents on the other. A proper solution of this tension requires a full appreciation of the ineliminable gap between actual and ideal deliberation. Because actual deliberation can never result in an ideal consensus, the actual exercise of democratic power should be understood as an unavoidable interruption of deliberation. Key Words: consensus • deliberation • democracy • empty place of power • Jürgen Habermas • Claude Lefort. (shrink)

This paper argues that the public can do more than legitimate government; it can provide public knowledge for sound public policy. Critics of democracy worry that the public has too little objectivity and impartiality to know what is best. These critics have a point: taken one by one, people have little knowledge of the whole. For this reason, citizens need to escape the cloisters of kith and kin and enter a world of unlike others. They need to be open to (...) other perspectives and concerns. They need to deliberate with others in public. In other words, an inchoate plurality of people needs to become public in order to develop a more comprehensive picture of the whole and to define ‘where the shoe pinches’. Democracy requires that the multitude deliberate publicly in order to create public knowledge by which sound public policy can be formed. Key Words: deliberation • democracy • John Dewey • Jürgen Habermas • legitimacy • particularity • perspectives • rational deliberative • proceduralism. (shrink)

A number of phenomena have lent a new complexity to the long-standing challenge of constructing a legitimate and stable political order. I contend that both legitimacy and integration under contemporary conditions ultimately hinge upon a form of public practical reasoning that departs considerably from the ones proposed by John Rawls, Jürgen Habermas and several deliberative democrats. I argue that the generalizability test that constitutes the cornerstone of most contemporary neo-Kantian theories of public reason should be abandoned as a rule of (...) public argumentation and be replaced by a norm of civic responsiveness towards minority claims. I not only suggest that a wider variety of reasons, motives and genres of speech needs to be admitted within the purview of public reason, but more fundamentally that generalizability cannot cogently be seen as anything more (or less) than a civic virtue. The underlying point of this article is that neo-Kantian theories of public reason work with a problematic conception of practical reason. I conclude by providing reasons, against some radical and agonistic democrats, why the language of public reasoning needs to be retained and renovated. Key Words: acknowledgement • agonistic democracy • deliberative democracy • generalizability • Habermas • pluralism • practical reason • public reason • Rawls • social integration. (shrink)

A fil rouge goes through Habermas’s decade long research. It is the idea that Reason and rationality permeate human societies and may lead human action towards emancipation, if aptly elaborated through the filter of theoretical reflection. Theory must pick up on this rational core and turn the intrinsic rational potential inherent to modern societies into a self-consciously pursued ‘project of enlightenment’. This introduction to the special issue ‘Habermas, Democracy, and the Public Sphere: Theory and Practice’ shows how Habermas’s work in (...) different scientific domains contributes to the construction of the ‘project of modernity’ from the many angles that such a complex project requires. The public sphere is, in Habermas’s theory, the societal domain in which communicative interactions have a chance to make Reason come to bear on human societies and lead them on the path to social and political emancipation. The contributions to this special issue focus therefore on the public sphere and illustrate the evolution of the concept in Habermas’s work and its relation to democracy at national and supranational level. (shrink)

This article aims to develop a ground for freedom of speech that combines two justifications – democratic participation and autonomy. First, it is argued that consequentialist justifications, such as discovery of truth and personal development, are far from providing a strong justification for free speech due to their reliance on uncertain empirical validation. Second, it is claimed that a stronger and better ground for free speech can be constructed by articulating two non-consequentialist justifications for free speech – democratic participation and (...) autonomy. This articulation, which I call the double-grounded non-consequentialist justification for free speech, considers autonomy and democratic participation as complementary principles. In this sense, a double-grounded justification engages justification as autonomy and democratic participation in a dialogue in order to provide remedies for the specific weaknesses of these two positions. (shrink)