In the quest for a workable ideal of democracy, the systems approach has recently shifted its perspective on deliberative democratic theory. Instead of enquiring how institutionalized decision-making might mirror an ‘ideal deliberative procedure’, it asks how democracy might be construed as a ‘deliberative system’. This leads it to recommend de-emphasizing the role of parliament and focusing instead on non-institutionalized actors and communications. Though this increased emphasis is undoubtedly warranted, the importance of parliament must not be downplayed. In the debate about (...) transnational democracy – and about EU democratization in particular – it is widely held that making democracy safe for transnational politics entails finding new, non-parliamentary ways of organizing it. Here, the deliberative systems perspective may be misunderstood as offering an alternative, non-parliamentary route to transnational democracy. This article argues that a deliberative system without a parliamentary legislature is tantamount to deliberation without democracy and that an elected parliamentary legislature is constitutive of democracy as a deliberative system – national or transnational. To substantiate this claim, the article suggests looking at Habermas’ discourse theory in a new light, as a sociological-reconstructive approach that aims to explicate the cognitive dimension of modern democratic decision-making. Acknowledgement of discourse theory’s sociological intent enhances our understanding of democracy as a deliberative system in two important ways. First, it helps elucidate the epistemic meaning of democracy differently from the accounts given in alternative theories. Discourse theory holds that what generates democratic legitimacy in modern democracies is a particular epistemic quality which the democratic process lends to decisions by enabling citizens to view the latter as valid outcomes of a cooperative practice of collective problem-solving among equals. From this pragmatist understanding it follows, second, that the presence of a parliamentary legislature is crucial to the establishment and operation of democracy as a deliberative system. (shrink)

In his account of legal revolutions, Hauke Brunkhorst applies a dual perspective encompassing the approaches both of systems and discourse theory to social evolution: functional adaptation and group-based normative learning coexist as two mechanisms of societal change, the latter being conceptualized as occasional interruptions to an overall systemic process of societal evolution. This article argues that Brunkhorst’s ‘systems theory first’ perspective undermines his claim to be delivering critical theory and that while it is both possible and necessary to incorporate a (...) systems-theoretical perspective into discourse-theoretical social theory when devising a critical theory of law and democracy, the reverse does not apply. The building blocks of Habermas’ reconstructive approach to social evolution are presented as a conceptual framework that constitutes an alternative to Brunkhorst’s ‘systems theory first’ perspective but remains compatible with the basic premises of his account. A discourse-theoretical view that sees societal development in terms of a social learning process chimes with Brunkhorst’s dual perspective on the dialectics of legal evolution but at the same time upholds the aims of critical theory. (shrink)