A CRITICAL ANALYSIS OF HABERMAS’S QUALIFIED DEFENSE OF STRONG JUDICIAL REVIEW By Aidan Michael Sprague-Rice A DISSERTATION Submitted to Michigan State University in partial fulfillment of the requirements for the degree of Philosophy – Doctor of Philosophy 2019 A CRITICAL ANALYSIS OF HABERMAS’S QUALIFIED DEFENSE OF STRONG ABSTRACT JUDICIAL REVIEW By Aidan Michael Sprague-Rice The question of how best to resolve constitutional indeterminacy has recently returned to prominence in American political philosophy. Jürgen Habermas’s contribution to this debate, which takes the form of a qualified defense of strong judicial review, is interesting, but it has not been the subject of much scholarly attention. In this dissertation I provide a recapitulation of Habermas’s account, locating it within the context of both Habermas’s ambitious communication theory of society and the ongoing American debate. This accomplished, I next subject Habermas’s defense of strong judicial review to critical scrutiny. Through this process I demonstrate that Habermas’s defense of strong judicial review does not sit comfortably with certain main premises of his social theory. Most importantly, I show that Habermas’s attempt to legitimate strong judicial review runs afoul of his contention that members of rationalized societies should be expected, on reflection, to endorse a communicative criterion for analysis of the legitimacy of legal institutions. Because history teaches that there are alternative practically realizable forms of constitutional interpretation which come closer to realizing a situation in which communicatively processed public opinion influences constitutional interpretation, Habermas’s qualified defense of strong judicial review must ultimately be understood as in significant tension with his overall social theory. I conclude my account by engaging in some speculation about both why Habermas might not have noticed this and what further lines of research are suggested by this analysis. Copyright by AIDAN MICHAEL SPRAGUE-RICE 2019 For Michael Ray Sprague, In memory of your courage and persistence. WBSFA v ACKNOWLEDGEMENTS Many, many people helped me write this dissertation. I must thank two groups in particular. First, my dissertation committee members: Todd Hedrick (the chairman of my committee), Frederick Rauscher, Christian Lotz, and Stephen Esquith, were always available to answer questions and provide support. Professor Hedrick, in addition, provided extremely challenging and helpful comments on multiple drafts of each chapter and spent numerous hours steering me through the complexities of Habermas’s social theory. He was always encouraging of my progress, insightful in his commentary, and understanding when I (all too often) missed deadlines or tried out unpromising arguments. If there is a Platonic ideal of a dissertation director, he would be it. Second, I must thank my family members. Susie Rice and Tom Maza, Barbara Johannsen, Pat Commins, Deirdre and Brad Jones, Sarah Sprague, Betty and Tom Fillmore, Tracy, Ray, and Shirley Fisher, Byron Rempp, and Adam and Erin Rice-Carlson have always been there for me. My mother, Elizabeth Rice, supported me in every way she could and encouraged me to keep going. Molly Sprague-Rice, my little sister, who is a true philosopher, helped me to work out my ideas when I was confused and helped me to get my mind off of writing (usually by saying something hilarious) when I was exhausted. Harrison Jones, my nephew, helped me remember to pay attention to details by providing a good example with his mastery of the different trains who live on the island of Sodor. Amber Sprague-Rice, my wife, took care of our son, and me, when I had to meet a deadline or pull an all-nighter. That happened a lot, and I can’t thank her enough. vi Finally, I must thank my son, William Michael Sprague-Rice. William, you are a sweet boy who can stand up on a horse with no hands. Sometimes in the past year or two I asked you to let me go down to the basement to write even though you and I both know it would have been much better to go play outside. I owe you a lot of time and a lot of thanks for being so patient. You made doing all this writing bearable with your big smile and happy heart. You mean the world to me and I love you so much. vii TABLE OF CONTENTS Introduction ........................................................................................................................... 1 Topic and Questions to be Answered .................................................................................... 1 Plan of the Work .................................................................................................................... 6 Justification of the Project ..................................................................................................... 9 Chapter 1: The Ongoing Academic Debate about Judicial Review ...................................... 10 1.1 Framing Strong Judicial Review ..................................................................................... 10 1.1.1 The Paternalistic Critique ............................................................................................. 12 1.2 Defenses of Strong Judicial Review ................................................................................ 17 1.2.1 The Argument that Strong Judicial Review is not Paternalistic Because the Court’s Decisions are Tied to Public Opinion .............................. 18 1.2.2 The Argument that Strong Judicial Review is paternalistic, but that popular sovereignty is not necessary for legitimacy ........................... 35 1.2.3 The Argument that, although Strong Judicial Review is superficially paternalistic, it ensures that citizen can identify with the laws, and so is not a threat to popular sovereignty ......................................................................... 40 1.2.3.1 (a) Ronald Dworkin’s Defense of Strong Judicial Review ....................................... 41 1.2.3.2 (b) John Rawls .......................................................................................................... 50 1.2.4 The Argument that, although Strong Judicial Review is superficially Paternalistic, it works to ensure that the conditions necessary for individual participation in the political process are met such that it should not be seen as a threat to, but instead as enabling, popular sovereignty .............................................................................................. 57 1.3 Reconstruction of the Arguments Made by the Various Prominent Judicial Review Skeptics ..................................................................................... 62 1.3.1 Thoroughgoing Critique of Strong Judicial Review: Walter Bellamy, Mark Tushnet, and Jeremy Waldron ..................................................................................... 64 1.3.2 Moderate Skepticism: Larry Kramer and Christopher Zurn ........................................ 70 1.4 Conclusion ....................................................................................................................... 74 Chapter 2: Habermas’s Theory of Modern Rationality, Society, and Legitimacy ................ 77 2.1 Introduction to Habermas’s Social-Theoretic Project, Description of His Motivations and Meta-Theoretical Commitments .................................. 79 2.1.1 Habermas’s Basic Project ............................................................................................. 79 2.1.2 Habermas’s Motivations ............................................................................................... 81 2.1.3 Examples of Habermas’s Use of his Social Theory .................................................... 83 2.1.4 The Scope of Habermas’s Social Theory ..................................................................... 85 2.2 Habermas’s Engagement with Weber ............................................................................. 88 2.2.1 Habermas’s Choice of Weber as a Starting Point ........................................................ 89 2.2.2 Habermas’s Reading of Weber’s Account of the Historical Development of Rationalized Societies ................................................................................. 98 2.2.3 Weber’s Account of the Organization of Social Action in viii Modern Societies ................................................................................................................... 103 2.2.4 Adorno and Horkheimer’s Use of Weber in the Dialectic of Enlightenment .............. 106 2.2.5 Habermas’s Critique of Weber ..................................................................................... 108 2.3 Habermas’s Alternative to Weber’s Social Theory ......................................................... 113 2.3.1 Habermas’s Theory of Modern Rationality .................................................................. 114 2.3.1.1 Conclusion of (c) ....................................................................................................... 130 2.3.2 Habermas’s Alternative to Weber’s Theory of Social Action and his Alternative Diagnosis of the Times .......................................................................... 136 2.4 Habermas’s Theory of Political Legitimation ................................................................. 139 2.4.1 Habermas’s Account of the Legitimacy Burden Faced by Modern Social Institutions .................................................................................................... 140 2.4.2 Habermas’s Description of the way in which Constitutional-Democratic Legal Systems could be Legitimated ......................................... 141 2.5 Habermas’s Concept of Constitutional Democracy and His Legitimation of Constitutional Democratic Legal Systems .................................................. 147 2.5.1 Habermas’s Account of Constitutional Democracy ..................................................... 147 2.5.2 Habermas’s Legitimation of Constitutional Democracy .............................................. 148 2.6 Conclusion and First Articulation of Habermas’s Defense of Strong Judicial Review ..................................................................................................... 152 2.7 An Impressionistic Depiction of Two Criticisms of Habermas’s Social Theory ................................................................................................... 153 2.7.1 Richard Rorty .............................................................................................................. 153 2.7.2 Amy Allen ................................................................................................................... 166 Chapter 3: A Critical Analysis of Habermas’s Defense of Strong Judicial Review ............. 175 3.1 Reconstruction of Habermas’s Defense of Strong Judicial Review ................................ 177 3.1.1 Definitions .................................................................................................................... 177 3.1.2 The Practical Commitment to Communication ............................................................ 180 3.1.3 Legitimacy Conferring Characteristics of Constitutional-Democratic Legal Systems ........................................................................................................................ 186 3.1.3.1 (a) Habermas’s Description of Constitutional Rights ............................................... 188 3.1.3.2 (b) The General Function of Constitutional Rights ................................................... 190 3.1.3.3 (c) The Conditions under which the Constitutional Rights can be Reasonably Expected to Perform their Normative Function ................................................. 193 3.1.4 Habermas’s Legitimation of Strong Judicial Review in Constitutional Democratic Legal Systems .................................................................................................... 214 3.1.4.1 Proper (Proceduralist) Self-Understanding ............................................................... 217 3.1.4.1.1 Ronald Dworkin’s Constructivist Account of Judicial Interpretation .................... 219 3.1.4.1.2 Habermas’s Critique of Dworkin’s Monological Approach .................................. 224 3.1.4.2 Proper Structure and Situation ................................................................................... 227 3.1.4.3 Two Additional Considerations: The Need for Timely Decisions and Openness to Revision ..................................................................................... 235 3.1.4.4 Why Habermas Believes that Members of a Rationalized Lifeworld Should be Expected to see a Court Which Meets the Aforementioned Conditions as Legitimate ......................................................................................................................... 237 3.1.4.5 Is There a Paradox Here? .......................................................................................... 242 ix 3.1.4.6 The Relationship between Habermas’s Argument and the Question of Judicial Review .................................................................................................. 244 3.1.5 Locating Habermas’s Justification of Strong Judicial Review in the Ongoing Academic Debate about the American Supreme Court ................... 245 3.2 A First-Pass Critique of Habermas’s Legitimation of Strong Judicial Review ............... 253 3.2.1 Three Objections to Habermas’s Account .................................................................... 254 3.2.2 Tentative Conclusion .................................................................................................... 267 3.3 Responses Available to Habermas .................................................................................. 268 3.3.1 Popular Constitutionalism ............................................................................................ 270 3.3.2 Parliamentary Sovereignty: Britain .............................................................................. 271 3.3.3 The Notwithstanding Clause: Canada ......................................................................... 273 3.4 Conclusion ....................................................................................................................... 275 4 Conclusion: Possible Explanations and Further Research ................................................. 278 4.1 A Merely Reconstructive Project? ................................................................................... 279 4.2 Allergic to Populism? The Need for Coherence in Constitutional Interpretation? ......... 280 4.3 Further Research .............................................................................................................. 284 BIBLIOGRAPHY ................................................................................................................. 286 x Introduction Topic and Questions to be Answered My topic in what follows is Jürgen Habermas’s response to what Frank Michelman calls the “question of judicial review” (Justice as Fairness, Legitimacy, and the Question of Judicial Review: A Comment, 1407) Put simply, the question of judicial review is the question whether the American Supreme Court’s empowerment to engage in strong judicial review1 can be shown to be normatively desirable or if some alternative method of arriving at definitive interpretations of the Constitution should be adopted instead of, or perhaps somehow in tandem with, it2. Much ink has been spilled attempting to resolve this question, and various competing camps have staked out ground on all sides of it3. 1 I use Jeremy Waldron’s well-known distinction between “strong judicial review” and “weak judicial review” throughout this dissertation. A constitutional court has the power to engage in strong judicial review when it can do some, or all, of the following on the basis of its interpretation of the Constitution: (1) decline to apply a law passed by the legislature to some particular case (to which it would seem plainly to apply), (2) modify the meaning of a law in a way that departs from its plain meaning, or (3) prevent a law from ever coming into force (The Core of the Case Against Judicial Review, 1354). On the other hand, a constitutional court has the power to engage only in weak judicial review when it can, on the basis of its interpretation of the meaning of the Constitution: (1) review legislation for its compatibility with constitutionally enshrined rights and issue a public report detailing its conclusions, but (2) cannot invalidate or refuse to apply the law (The Core of the Case Against Judicial Review, 1355). 2 This is actually a bit of a mis-statement insofar as what Michelman means by ‘the question of judicial review’ is the question whether or not constitutional democracies in general ought to make use of strong judicial review. I am phrasing the question in this narrower way, focusing on the American Supreme Court, in order to make my topic more focused and manageable. Thus, the exercise that I am engaged in here is consciously parochial. I mean to investigate the normative status of strong judicial review in the legal system of the United States. Habermas’s contribution to this debate is likewise consciously parochial. His focus is primarily on the legal systems of the German Federal Republic and the United States. Happily, this means that there is no problem in determining whether or not Habermas’s reflections on strong judicial review are meant to apply to the debate about the American Supreme Court. Since he is nearly always referring to this system when he talks about strong judicial review and constitutional courts, we can usually straightaway interpret his arguments as having to do with the American system. Unsurprisingly, different countries deal with the problem of constitutional indeterminacy differently. The German Federal Republic uses something like the American version of judicial review. The Canadian system makes use of a system of weak judicial review (as defined above). And the British system, famously, makes use of parliamentary supremacy (in which the courts are not empowered to pronounce on the constitutionality of the laws). 3 A representative sample of the best recently published (within the last twenty-five years) books which deal with the question of judicial review would have to include: Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (2008); Mark Tushnet, Taking the Constitution Away from the Courts (1999); Christopher F. Zurn, Deliberative Democracy and the Institutions of Judicial Review (2007); Christopher L. Eisgruber, Constitutional Self-Government (2001); Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (1996); Cass R. Sunstein, One Case At a Time: Judicial Minimalism on the Supreme Court (1999); Richard Bellamy, Political Constitutionalism: A Republican Defence of the 1 That some institution must be empowered to produce a legally authoritative interpretation of the Constitution is clear to most, for the document is, in many of its crucial clauses, ambiguous4. But an ambiguous constitution, left without a definitive and legally authoritative interpretation, can discipline neither the processes, nor the outcomes, of ordinary law-making. Thus, without empowering some body to produce authoritative interpretations of the Constitution, we would face two related prospects which nearly all commentators believe should be avoided even at a high cost. These are (1) legal uncertainty (as competing claims about whether or not some law or practice is consistent with the basic law of the Constitution would be bound to proliferate and would remain unresolved given the absence of a body with the authority to render definitive judgements) and (2) its direct offspring, social instability5. But, though most all commentators accept this much, there is widespread disagreement on almost everything else. After all, old ways, even those which are well-established, are not necessarily best. And skeptics of the normative desirability of strong judicial review continue to deny that allowing the Constitutionality of Democracy (2007); Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004); Lawrence G. Sager, Justice in Plainclothes: A Theory of American Constitutional Practice (2004); Frank I. Michelman, Brennan and Democracy (1999). And a list of important recent articles would have to include Jeremy Waldron’s The Core of the Case Against Judicial Review (2006), Aileen Kavanagh’s Participation and Judicial Review: A Reply to Jeremy Waldron (2003), and Alon Harel’s Rights-Based Judicial Review: A Democratic Justification (2003). 4 Examples of constitutional ambiguity are numerous and well known. One of the more frequently discussed examples is the due-process clause contained in the first section of the Fourteenth Amendment to the U.S. Constitution. The relevant section reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (Art./Amend XIV, Sec. 1). One significant difficulty with this passage is interpreting the meaning of the phrase “due process of law”. Widely divergent interpretations have been proposed which take the term to refer to the securing of substantive outcomes, or, alternatively, to the guarantee of certain procedures. See Ely’s Democracy and Distrust for a discussion of the relative merits of these interpretations (Ely, 14-21). Another obvious area of concern is determining to whom this “due process” is being extended by the amendment (whether to citizens or to the broader class of persons who are, at the relevant time, “within the jurisdiction” of a state). 5 One classic expression of the general concern that laws must be unambiguous and enforced in a predictable way can be found in Hobbes’ Leviathan. 2 Supreme Court to have final (or at least practically final) say about what the Constitution means is the only or best way to resolve the problem of constitutional indeterminacy6. It is not possible to overstate how much the recent debate about the question of judicial review has been influenced by the framing of the question offered by Alexander Bickel in his book, The Least Dangerous Branch: The Supreme Court at the Bar of Politics7. Therein Bickel formulates what has come to be known as the “counter-majoritarian difficulty”. This worry – essentially the concern that empowering the Supreme Court to engage in strong judicial review is normatively undesirable since it interferes with the achievement of a normative ideal of first importance, popular sovereignty, by allowing a small number of judges to pronounce definitively on the meaning of the Constitution and to thereby effectively overturn legislation enacted by democratically elected officials – has prompted proponents of strong judicial review (including, most prominently, Bruce Ackerman, Ronald Dworkin, Christopher Eisgruber, and John Hart Ely) to attempt to demonstrate that, appearances notwithstanding, the Court’s ability to engage in strong judicial review does not compromise, and actually (at least on some of their accounts) protects, the ability of the American people to govern themselves8. 6 I use ‘constitutional indeterminacy’ and ‘constitutional ambiguity’ interchangeably throughout all of this text. It is my impression that ‘constitutional indeterminacy’ is currently the dominant term in the literature. These terms refer to exactly what one would expect them to refer – a constitution which admits of several plausible competing interpretations. 7 Though Bickel’s framing is undoubtedly the predominant lens through which the practice is considered in our political moment, other framings have been dominant historically. As Larry Kramer points out in The People Themselves: Popular Constitutionalism and Judicial Review, the normative status of strong judicial review has been more or less in doubt, and for various reasons, in different historical periods. Sometimes a commitment to “popular constitutionalism” has been widespread. In these moments, the general public has tended to regard the Court with a mixture of resentment and suspicion. In such periods, the people tend to see participation in the processes which yield legally effective interpretations of the Constitution to be something like a basic and inalienable right which all citizens rightly possess. Sometimes, on the other hand, a commitment to “legal constitutionalism” has been ascendant. In these periods, the Court’s exclusive ability to render more or less final decisions about the meaning of the Constitution has been widely accepted as normatively justifiable. Kramer claims that we are currently living in a period in which legal constitutionalism is the dominant view. He further claims that the intellectual path which led toward this moment has been paved by highly effective justifications of strong judicial review, like Bickel’s. 8 See Bruce Ackerman, We the People, volume 1: Foundations (1993); Bruce Ackerman, We the People: Volume 2: Transformations (2000); Bruce Ackerman, Deliberation Day (2004); Ronald Dworkin, A Matter of Principle (1985); Ronald Dworkin, Law’s Empire, (1986); Ronald Dworkin, Freedom’s Law: The Moral Reading of the 3 Opponents of the practice have countered by offering a variety of reasons to believe that the actions taken by the court have indeed (historically) interfered with, and can be expected to continue to interfere with, popular sovereignty. They also seek to show that the use of strong judicial review produces a wide range of additional normative problems, including judicial overhang (Mark Tushnet) and the juridification of basic rights (Jeremy Waldron)9. In his contribution to the debate, Habermas ultimately sides with the former category of theorists. That is, he concludes that, assuming that certain conditions are met, the Court’s empowerment to engage in strong judicial review can be shown to be normatively desirable (or at least not significantly normatively problematic)10. In support of this position, Habermas argues that the Court’s empowerment to engage in strong judicial review does not necessarily interfere with popular sovereignty (which Habermas refers to with ‘public autonomy’) because the Court’s decisions can reasonably be expected, at least under certain circumstances11, to generally American Constitution (1996); Christopher L. Eisgruber, Constitutional Self-Government (2001); John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1990). 9 See Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (2008); Mark Tushnet, Taking the Constitution Away from the Courts (1999), Jeremy Waldron, Law and Disagreement (1999), Jeremy Waldron, The Core of the Case Against Judicial Review (2006). 10 Habermas gives the clearest and most complete version of his argument in favor of strong judicial review in chapters 5 and 6 of his central work on political philosophy, Between Facts and Norms. I will treat the argument made in these chapters as definitive of his thinking about strong judicial review. However, as will become clear as we proceed, one cannot understand the argument which Habermas makes there without also grasping his complex social theory (the central statement of which is worked out over the course of the two volumes of the Theory of Communicative Action). 11 The circumstances that Habermas has in mind are the following. First, the court will have adopted and will continuously maintain a proceduralist view of the Constitution. That is, the members of the court will understand the Constitution as a document which is directed at ensuring, through the granting of basic rights to all citizens and the establishment of certain democratic procedures, that (1) all citizens are allowed to participate in public debate about political questions under conditions of equality and non-coercion and (2) the various decision-making institutions which are tasked with producing law will have a strong incentive to attempt to respond to the conclusions reached in these communicative exchanges by modifying the legal code such that it comes to accord with the relevant conclusions. Second, the court will understand itself to be tasked with interpreting the Constitution in accordance with this reading (such that, when the Constitution proves to be ambiguous, the court will resolve the ambiguity by assuming that the unclear passage is an attempt to realize this larger purpose, or at least that it does not conflict with it). This will have the consequence that the court will be primarily concerned with ensuring that individuals possess the rights necessary in order for public deliberation of the relevant type to take place. And third, the Court will be situated within, and will maintain an attitude of openness toward, a robust legal public sphere. That is, the members of the Court will have access to a high-quality debate between legal scholars about constitutional law and the various issues that might arise in that domain. 4 ensure that citizens enjoy the rights necessary in order to participate in equitably structured processes of public deliberation about political questions. Those processes of deliberation, in turn, work to generate public opinion. And, at least in a minimally well-functioning liberal democratic political system like that of the United States, this public opinion exercises an influence on the legal system such that the laws which the system ultimately produces, and which work to regulate social life, are able to be understood to be responsive to the (“communicatively processed”) concerns and demands of the public. But because a community which was organized by laws which were subject to public input in this way would be one in which (at least for Habermas) the ideal of popular sovereignty was, more or less, realized, Habermas concludes that, assuming that the relevant conditions are met, not only does strong judicial review not interfere with popular sovereignty, but also that it might be normatively desirable for the United States (and other, relevantly similar, constitutional democracies as well) because it can work to do the opposite. That is, strong judicial review might even be desirable because, appearances notwithstanding (and, again, required conditions met), it actually helps to enable popular sovereignty12. I will consider these conditions in detail in chapter 3. For now, I will just note that the fact that Habermas insists that these conditions must be met in order for strong judicial review to be normatively desirable indicates that Habermas’s defense of strong judicial review is a limited one. This is because it only applies to courts with (1) the requisite view of the Constitution, (2) the requisite view of its own role as a branch of government tasked with interpreting the Constitution, and (3) the requisite situation vis-à-vis the public sphere. Habermas should be understood, then, as proposing a set of conditions which would render the Supreme Court’s use of strong judicial review normatively justifiable. I will later attempt to show that, even if these conditions were met, still Habermas’s justification of strong judicial review would not be compelling. To anticipate, this is because, even if the court were to understand the Constitution and its own purpose as Habermas requires, still it could not be expected to have superior insight, compared to that which would be generated through public communication processes, into the question which rights are necessary in order for public deliberation processes of the relevant type to take place. 12 To say roughly the same thing, but in a simpler way, Habermas is committed to the claim that, under certain conditions, engagement in strong judicial review by the Supreme Court should be understood not as interfering with popular sovereignty, but instead as helping to enable popular sovereignty by securing a necessary condition for its realization: the possession, on the part of the members of the public, of the basic rights necessary in order for processes of high-quality public deliberation to take place and to become legally efficacious (in a sense I will explain below). 5 The question that I propose to ask in what follows is whether or not Habermas’s argument is compelling. That is, does Habermas’s analysis actually provide us with good reasons to believe that the resolution of questions of constitutional interpretation can be handled by a constitutional court like the U.S. Supreme Court without interfering with the ability of the people to rule themselves? How does his account face up to the objections to strong judicial review which have been forwarded by trenchant strong judicial review skeptics like Jeremy Waldron, Richard Bellamy, Larry Kramer, and Mark Tushnet? And is Habermas’s thinking about strong judicial review consistent with the general thrust of his critical social theory? I will develop and defend answers to these questions over the course of the following pages. Plan of the Work In order to arrive at a position from which I can analyze Habermas’s thinking about the question of judicial review, I must first engage in some significant groundwork. To begin with, I must introduce the dense academic debate which has grown up around the question of judicial review (chapter 1). This will allow us to get a clear sense of what the question of judicial review is, how Habermas’s account relates to the other prominent defenses of the practice which are available in the literature, and the main objections to the practice of strong judicial review (which his account must be able to overcome if we are to take it as compelling). After I have introduced the main positions in the debate, I must spend significant time introducing Habermas’s general social theory (chapter 2). I must do this because Habermas’s thinking about strong judicial review is in large part grounded upon it, and Habermas’s social theory, though it is widely recognized as important, is, despite the best efforts of a generation and a half of translators and interpreters, still not well-understood in the American philosophical discourse. 6 In terms of its conceptual relationship to his defense of judicial review, Habermas relies on his social theory in order to defend the claim that members of the public would have to possess certain basic rights in order to participate in public discourse and to explain why popular sovereignty is a normative ideal of first importance in the eyes of citizens. He also uses his theory to explain why, despite the way the issue is commonly framed, the realization of popular sovereignty requires the possession of basic rights (and vice versa). These considerations are crucial in order to understand the way that Habermas attempts to defend strong judicial review (since he presents it as an institution which ensures that the requisite rights will be realized by citizens). Once this groundwork has been laid, I will finally be in a position to reconstruct, and then develop a critical analysis of, Habermas’s qualified defense of the use of strong judicial review by both the American and the German legal systems (chapter 3). I will begin with a sympathetic reconstruction of Habermas’s account. However, once I have presented it, I will attempt to show that Habermas’s defense of strong judicial review does not sit comfortably with certain core premises of his social theory. In a nutshell, my argument against Habermas is that, despite what he claims, if his basic social theory is correct, then the use of strong judicial review by the American legal system cannot be understood as contributing to the realization of the ideal of popular sovereignty. This is because, in order for us to believe that the Supreme Court will be capable of playing the role that Habermas nominates it to play, it must be shown that its members can normally be expected to be in a good position to correctly determine which rights the public must possess in order for inclusive and non-coercive public discourse to take place. But a basic proposition which can be drawn from Habermas’s social theory is that the only forum which is ultimately capable of 7 determining which rights the public must possess in order for such discourse to take place is the forum of public discourse itself. So, if Habermas’s theory is right, then unless there is some reason for us to expect that the members of the Court will be compelled to reach the same conclusions about what is required as the general public would reach through extended discourse about the topic, then there is no reason for us to believe that the members of the Court will be likely to be correct in their determinations about which rights are necessary in order for public discourse of the relevant kind to take place. But, in that case, we should not expect the Court (even if it so desired) to be able to consistently interpret the Constitution in such a way as to ensure that the members of the public possess the rights necessary for public discourse of the relevant kind to take place. Thus, if some alternative to strong judicial review which is more likely to render decisions about basic rights which track communicatively-processed public opinion about this topic than it is can be identified, the use of strong judicial review will not be able to be regarded as anything other than an impediment to the realization of the ideal of popular sovereignty. But there appear to be many practically feasible (and, indeed, historically realized) alternatives which would, for structural reasons, be more likely than the Supreme Court to track communicatively generated public opinion about the rights necessary in order for public discourse of the relevant kind to take place. To name just one, disputes about the meaning of the Constitution could be resolved, as in the Canadian or British systems, through public elections (which take place after a period of public deliberation). So, it appears that, if we accept the core premises of Habermas’s social theory, then his defense of strong judicial review cannot succeed13. 13 One way that Habermas might respond to this criticism is by pointing out that the public sphere in America has been thoroughly decimated such that there is no reason for us to take public opinion to represent anything like the communicatively worked out consensus of the members of the public. In that case, it might be that a court (made up of wise and learned justices) would be the best available institution to use to determine which rights citizens must 8 On this basis I will argue that, for the sake of maintaining consistency throughout his overall program in social and political philosophy, Habermas should give up the claim that the use of strong judicial review does not pose a normative problem for constitutional democracies like the United States. I will argue that he might, instead, attempt to show that his social theory could accommodate a defense of “weak judicial review”. Justification of the Project The main reason for undertaking this study is that, although Habermas is widely recognized as a master political philosopher who has developed a sophisticated and important account of constitutional-democracy, and although his account of judicial review is recognized as an important entry on the side of the defenders of strong judicial review14, Habermas’s account of judicial review has not received much consideration in the American academic debate. Indeed, the most prominent theorists in that debate (Ackerman, Dworkin, Rawls, Ely, Eisgruber, Waldron, and Bellamy, among others) tend to deal with Habermas’s theory of judicial review only in passing. We may therefore expect that, by bringing Habermas’s voice more fully into the conversation, the discourse will be enriched. This is the principal justification which I offer for this study. possess in order for equitable and non-coercive public discourse to take place. Habermas is usually reluctant to pronounce definitively on the status of the public sphere in America. So, it is unclear whether or not he would be willing to take this non-ideal route in responding to my critique. As I have already indicated, the best way to read him on strong judicial review is as making the argument that, if certain relatively strict conditions were met (e.g. a healthy public sphere, robust participation in public discourse about basic rights and other matters), strong judicial review would not necessarily be normatively undesirable, and might even be normatively beneficial. This is the argument that I am primarily concerned with in this essay. Thus, though some consideration of these empirical issues is inevitable, I will not try to do anything like provide an answer to extremely difficult questions about the status of the actually existing American public sphere. Instead, I will more or less stick to the attempt to show that, even if the ideal conditions that Habermas is imagining were met, still his attempt to demonstrate the normative acceptability of strong judicial review would fail. 14 See, for instance, Cristina Lafont’s inclusion of Habermas among the most important proponents of judicial review in her 2016 article Philosophical Foundations of Judicial Review. 9 Chapter 1: The Ongoing Academic Debate about Judicial Review Having introduced my general project and made clear the steps that I propose to take in pursuing it, I can now begin my analysis. Thus, in this first chapter, I will characterize the state of the ongoing academic debate about strong judicial review in the United States15. I divide the chapter into several parts. In the first part, I explain that, at least in general, the debate about the use of strong judicial review has been a debate about (a) the extent to which the achievement of the normative ideal of popular sovereignty is imperiled by the use of strong judicial review and (b) the consequences of this prospect (1.1). In the second part, I describe four distinct ways that defenders of strong judicial review have tried to rebut the claim that strong judicial review is normatively problematic because of its alleged interference with popular sovereignty (1.2). I have identified these distinct approaches through a wide-ranging review of the literature. However, I do not claim that they represent every important position which has been developed on the pro-judicial review side of the debate, merely the most prominent ways that the practice is defended. In the third part, I show how some of the best-regarded judicial review skeptics have attempted to counter the proponents and argue against the normative desirability of strong judicial review (1.3). Finally, in the fourth part, I offer some concluding remarks which are intended to both clear the way for my contextualization of Habermas’s distinct justification of strong judicial review and to lay the groundwork for a formal statement of his position (1.4). 1.1 Framing Strong Judicial Review For better or worse, the academic debate about the question of judicial review almost always centers on concerns about whether or not the use of strong judicial review should be seen 15 I limit myself to consideration of scholarship dealing primarily with the American Supreme Court for reasons of familiarity and time-constraints alone, not because I take the American debate to be especially sophisticated or important. 10 as an impediment to the realization of a key normative concept in democratic theory – the concept of rule by the people, or popular sovereignty. In general, proponents of strong judicial review take one of two tacks in responding to this possibility. They either (1) deny that strong judicial review interferes with popular sovereignty or (2) admit that it does, but then hasten to deny that popular sovereignty is as attractive an ideal as it is generally made out to be. Opponents are usually content to pick apart the descriptions of strong judicial review which these defenders mobilize on empirical grounds. They try to show that, if we pay attention to how strong judicial review actually functions in the legal system of the United States, we will see that it cannot be understood as anything other than an anti-democratic mechanism which works to limit self-rule. As I have already indicated, probably the best-known account of the way that strong judicial review might interfere with popular sovereignty is Alexander Bickel’s “counter- majoritarian difficulty”, developed in his classic book The Least Dangerous Branch. A similar concern, formulated by the American jurist Learned Hand, has also captured the attention of many theorists16. As Christopher Zurn points out, the criticisms of strong judicial review that Bickel and Hand make are actually somewhat different (Zurn, 3-13; and see below). However, for our purposes, it is permissible to say that Bickel and Hand can be understood as noticing what is basically the same potential problem with strong judicial review, namely, that it seems to prevent “the people” from occupying their rightful place as law-makers in the law-making process. I turn now to a review of Bickel and Hand’s somewhat different articulations of this criticism. 16 Bickel himself cites Hand in The Least Dangerous Branch (p. 20). Dworkin devotes a full chapter to him in Freedom’s Law. And Christopher Zurn provides a commentary on the difference between Bickel and Hand’s respective concerns about strong judicial review and popular sovereignty in Deliberative Democracy and the Institutions of Judicial Review. 11 1.1.1 The Paternalistic Critique In The Least Dangerous Branch, Alexander Bickel attempts to give an unambiguous formulation of the way in which strong judicial review might interfere with popular sovereignty. Bickel is thinking explicitly about the American Supreme Court in the famous passage in which he attempts to distill the basis of the claim that strong judicial review conflicts with popular sovereignty. He writes: “… when the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of representatives of the actual people of the here and now; it exercises control, not in behalf of the prevailing majority, but against it. That, without mystical overtones, is what actually happens.” (17). Although it may seem obvious, it is worth taking a moment here to lay out three analytically distinct elements of the practice of strong judicial review which Bickel more or less collapses into one in this formulation, for a review of these will give us occasion to offer some general comments about how answers to the question of judicial review should be interpreted. In referring to the possibility that the Supreme Court will declare some law or act unconstitutional, Bickel refers in a truncated way to a complex process. In general, when the Supreme Court agrees to hear a case in which it is alleged that some statute (or administrative action) is unconstitutional (excepting cases in which the Court rules narrowly, refusing to decide the main constitutional issue(s) in question), it must resolve the matter at issue through (1) developing an interpretation of the meaning of the relevant section of the Constitution (i.e. determining which rights or procedures are prescribed in that section and what, exactly, they prohibit or require) and of the statute or administrative action, (2) rendering a judgment about 12 whether or not the law (or administrative action) under consideration violates the rights or procedures the relevant section prescribes, and then (3), in cases in which it is determined that a law (or administrative action) does violate those rights or procedures, deciding whether the offending law (or action) should be nullified (in part or in whole) or modified (and how) in order that the conflict with the constitutional basic law is resolved. These three distinct activities, which Bickel refers to as one when he refers to the possibility of finding some law (or action) unconstitutional, are at least analytically distinguishable (though it is of course true that, in actually reaching a decision, the individual justices are not likely to approach the question at issue in such a step-by-step fashion). Now, as I have already said, the question of judicial review is the question whether it can be shown that it is normatively desirable, or at least not normatively problematic, for the Supreme Court to be the institution which is empowered to develop authoritative interpretations of the Constitution and apply them to questions of law. Reviewing the three steps outlined above helps us to notice that how we answer this question depends upon our normative theory of American democracy (i.e. our theory about how the American democratic system should function in the first place) and especially our view of the role that the Constitution should play, as a part of this system, in the shaping of the laws. This is because, when we consider whether the Court should or should not be empowered to interpret the Constitution in a binding way, we are, given the fact that the interpretations that the Court arrives at play an important role in shaping the legal code and the set of actions which both the legislature and administration will understand themselves to be able to take (because these interpretations ground the Court’s decision-making process about whether or not a law or administrative action either should be, or need not be, nullified or modified), considering, first, what role we believe that the Constitution 13 should play in the shaping of the legal code, and, second, whether the Court will be likely or not likely to interpret the Constitution in such a way that the Constitution will impact the laws in the way that we have determined that it should. But this is a normative analysis which can only be undertaken if we can rely on a more general theory about (1) how the laws should, in general, be shaped in America and (2) what role the Constitution should play in shaping the laws. To put this in terms of a simple formula – how one answers the question of judicial review will depend on what one takes the Constitution’s proper role to be (this being informed by our normative commitments about how the legal system should function) and whether or not one believes that it is more likely or less likely to play that role if the Court, as opposed to some other institution or arrangement, is tasked with interpreting and applying it. What this means for the purposes of our analysis is that, when we try to make sense of the way that a theorist responds to the question of judicial review, we will have to ultimately unpack the way that the theorist conceptualizes the Constitution’s normative role in American democracy. And this will frequently require looking into the theorist’s more general normative account of American democracy and the American legal system itself17. Having said this much, we can turn back to Bickel’s formulation of the counter- majoritarian difficulty. For Bickel, it is plain that the central normative ideal of American democracy is popular sovereignty (conceptualized as rule by the majority). This is the ideal which Bickel takes the American political system to be fundamentally directed toward achieving. Indeed, on his account, it is chiefly the fact that American democracy makes popular sovereignty possible that makes the system itself normatively desirable. From this it is a very short step to 17 The fact that the counter-majoritarian difficulty has proven to be such a compelling framework for posing the question of judicial review, then, indicates that many of the theorists who attempt to resolve the question of judicial review take popular sovereignty to be the central ideal which American democracy should be set up in order to realize. 14 Bickel’s concern, referred to in the passage just quoted, that allowing the Supreme Court to interpret the Constitution is normatively problematic. For a commitment to majority rule would plainly seem to mean that majorities must be able to pass laws (whether directly or through the intermediation of their elected representatives) which accord with their wishes. But then strong judicial review, because it expressly empowers a small minority group of judges to, on the basis of their interpretation of the Constitution, overturn the decisions reached by the representatives who are elected by the majority of citizens, seems to be a straightforwardly anti-majoritarian mechanism (and this would, arguably, be true whether or not the Court ever did actually use its power to overturn some piece of legislation or some administrative action). The decision to use the Court to produce legally authoritative interpretations of the Constitution therefore appears to Bickel to be, at a minimum, normatively problematic. As I have already mentioned, the famous American jurist Learned Hand develops a similar criticism of strong judicial review (and in doing so mobilizes a similar normative theory of American democracy). The main difference is that Hand does not identify majoritarian outcomes with “the will of the people” as Bickel does. Instead, Hand focuses on the simple fact that, whatever else the members of the Supreme Court claim to be, they are not identical with “the people”. Thus, even if we do not equate “the people” with “the majority”, still there is a problem with strong judicial review because, given that the Supreme Court is made up of a very small number of judges and that those judges are (at least in the American system) not directly elected and generally insulated from political pressure (through their enjoyment of lifetime tenure), we cannot, unless we are making use of a definition of “the people” which departs severely from ordinary usage, understand the use of strong judicial review to be anything other than a practice through which some group other than “the people” exercises a major influence on 15 the shaping of the legal code and thereby stands in the way of the achievement of popular sovereignty (i.e. rule by the people). Hand provides a statement of this position in a famous passage (quoted in several places by Ronald Dworkin) comparing justices on a constitutional court with Platonic philosopher- kings: “For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not. If they were in charge, I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs. Of course I know how illusory would be the belief that my vote determined anything; but nevertheless when I go to the polls I have a satisfaction in the sense that we are all engaged in a common venture. If you retort that a sheep in the flock may feel something like it; I reply, following Saint Francis, “My brother, the Sheep’”. [Hand, 73]. It is clear that what Hand is saying here is similar to, but not quite the same as, Bickel’s formulation of the counter-majoritarian difficulty. Again, the difference is that, while Bickel straightforwardly identifies majoritarianism with popular sovereignty, Hand leaves open what it would mean for the people to rule and merely points out that that the courts, because they are composed only of an extremely small fraction of the total public and are not elected, cannot plausibly be thought to be identical with, or to be directly elected representatives of, the people. Bickel somewhat fills in the content of the concept of “the people” while Hand does not. In thinking about how to frame the question of judicial review, I think it is wise to follow Hand’s, as opposed to Bickel’s, example. Indeed, what it means to refer to “the people” is 16 unclear and this, along with the question what it would mean for “the people” to rule, is a difficult question to answer. But we do not need to know the precise answer to this question to recognize the basic contours of the larger critique which both Bickel and Hand make, and which proponents of strong judicial review have found serious enough to devote quite a lot of time and ink to rebutting. What both Bickel and Hand both point out is that there is a normative difficulty for a country like the United States insofar as making use of strong judicial review seems to stand in the way of realizing the central normative ideal of popular sovereignty. The danger is that the use of the courts to settle conflicts about the appropriate way to interpret the Constitution will allow a small minority group of judges (however eminent they are as individuals) to exercise very serious influence over the lives of many people. By using their power to pronounce upon the meaning of the Constitution, the members of the Court effectively wield a veto over the process of ordinary law-making. In a nutshell, this is the worry that there is something paternalistic about strong judicial review. In what follows I will therefore generally refer to this concern, however it is precisely formulated (i.e. however the concept “the people” is precisely filled out), as the paternalistic critique. 1.2 Defenses of Strong Judicial Review As I have already said, the paternalistic critique has seemed to many proponents of the normative desirability of strong judicial review to be a serious objection which demands a response. In the American discourse, there are at least four distinct routes that supporters have tried to take to show that the critique is ultimately not devastating. These include the argument that, contrary appearances notwithstanding, strong judicial review is actually not paternalistic because the Court’s decisions are, for various reasons, tied to public opinion (1.2.1), the argument that strong judicial review is paternalistic, but that popular sovereignty, at least of an 17 unlimited sort, is actually not an attractive normative ideal (1.2.2), the argument that strong judicial review, while superficially (or merely apparently) paternalistic, does not prevent citizens from identifying with the laws of the community (and actually may make them more likely to be able to do so) and so is not ultimately a serious threat to popular sovereignty (1.2.3), and the argument that strong judicial review, while superficially (or merely apparently) paternalistic, enables citizens to shape the laws under which they live, and so actually enables popular sovereignty (1.2.4). Below I will present each of these lines of response in turn. Before turning to this exercise, however, I must make a brief comment about terminology. As I have already said, this dissertation deals with the question of judicial review from a consciously parochial perspective. That is, it is concerned with whether or not Habermas’s thinking about strong judicial review could serve as a compelling argument in the American debate about the Supreme Court’s empowerment to engage in strong judicial review. For this reason, most of the theorists who I discuss below talk about strong judicial review in terms of the Supreme Court and the American Constitution. However, this is not true of all of the theorists who I consider. Therefore, in the following section, I will sometimes use ‘Constitution’ and ‘Court’ and sometimes use ‘constitution’ and ‘court’. I let the original context of the theorist under discussion decide the matter. Whether a theorist thinks about the question of strong judicial review in terms of the American legal system alone or in terms of general democratic theory, however, rarely makes a difference in the context of this dissertation, and when it does, I draw explicit attention to that fact. 18 1.2.1 The Argument that Strong Judicial Review is not Paternalistic Because the Court’s Decisions are Tied to Public Opinion The most straightforward, but perhaps prima facie least plausible, way to respond to the paternalistic critique is to deny that the use of strong judicial review is actually a threat to popular sovereignty. This way of arguing is well-established in the American debate18. The idea is that, if it can be shown that the Supreme Court will be likely to produce interpretations of the Constitution which would correspond with those that “the people” (however defined) would choose if they were only empowered to do so, or if some other good reason can be given why “the people” (however defined) should identify with the decisions that the court reaches (even if the conclusions that the court comes to are other than those which most members of the public have actually reached), then there is no harm to popular sovereignty done by strong judicial review. The paternalistic critique is dissolved because strong judicial review does not function to produce constitutional interpretations which differ from those which “the people” themselves would have (or should have) chosen. Several theorists have attempted to rebut the paternalistic critique in this way. I have articulated relatively impressionistic accounts of three variants of this strategy below. (1) Some theorists have attempted to deny that strong judicial review is paternalistic by examining the actual consequences of using strong judicial review in constitutional 18 The most famous example comes from Alexander Hamilton. Writing in Federalist 78, Hamilton, attempted to allay concerns that the adoption of a Supreme Court capable of nullifying laws passed by the legislature would amount to usurping the peoples’ rightful role as lawmakers by identifying the court’s decisions with the peoples’. In the section I quote below, Hamilton is directly discussing the power of strong judicial review and the question of whether or not it interferes with the legislature’s power to make the laws on behalf of “the people”: “Nor does this conclusion [i.e. decision in favor of strong judicial review] by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both, and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.” 19 democracies19. Barry Friedman, Christopher Eisgruber, and Alon Harel have each separately argued that an examination of the history of the decisions reached by the American Supreme Court suggests that Court’s decision-making process is, in Friedman’s words, significantly “hemmed in” by public opinion such that the interpretations of the Constitution which the Court ultimately settles on and applies can be expected to generally be those which majorities would endorse (The Will of the People and the Process of Constitutional Change, 1232-1233)20. If this is true, then we might be able to join with Friedman in dismissing the paternalistic critique on the grounds that it rests upon “a descriptively inaccurate foundation” (Dialogue and Judicial Review, 580). Because the Supreme Court would not often produce interpretations of the Constitution which would depart from those favored by the people (assuming that we define “the people” as “a majority of the people”), the court’s disciplining of the legislative process (e.g. its nullification or modification of the laws) could be seen as an expression of the will of the people (because, in that case, the Court would discipline the legislative process in accordance with its understanding of the meaning of the Constitution and, since the Court would generally read the Constitution as the public does, the interpretations of the Constitution and the resulting disciplining actions taken by the Court would be quite likely to be the same ones that the general public would also take if it were empowered to do so). Then there wouldn’t be any good reason to worry about the Court’s decisions functioning as constraints on popular sovereignty. It would 19 These theorists, generally, agree with Bickel and Hand that popular sovereignty is the (or at least a) core ideal that the American democratic system ought to be directed at achieving. In order to show that strong judicial review is normatively desirable, then, they attempt to show that using the court to interpret the Constitution contributes to, or at least does not interfere with, the realization of this ideal. The strategy that they generally employ in attempting to make this case is to try to show that the Court does not interfere with popular sovereignty because it does not (or at least not in the long run) interpret the Constitution differently than the people do. But in that case the decisions that the Court reaches are no threat to popular sovereignty, because the people would have reached the same decisions and the consequences for the laws would be identical. 20 See also Harel, Rights Based Judicial Review: A Democratic Justification, and Friedman, Dialogue and Judicial Review; The Will of the People and the Process of Constitutional Change, and The Will of the People. 20 not matter, on this account, who ultimately is empowered to interpret the Constitution so long as the interpretations, and subsequent actions, which were ultimately undertaken would usually be the same as those which the people (whether conceived of as a majority of the citizens or in some other way) would undertake. In order to evaluate this type of argument, we need to determine whether or not there is something about the way that the Supreme Court is structured which ensures that the interpretations of the Constitution that it generally settles upon (and therefore the decisions that it ultimately renders) will usually be ones which “the people” would also settle on if they were called upon to play the role of constitutional interpreter. Otherwise the harmony between the Court’s decisions and the will of the people (which at this point in the argument has the status of a mere hypothesis) might be dismissed as a historical accident. Alon Harel attempts to demonstrate that the Court can be generally expected to interpret the Constitution as the people would by arguing that the process that the Court uses to develop an interpretation should be understood as a “participatory form of decision-making”. By this he means that the Court’s interpretation of the meaning of the Constitution necessarily depends upon “societal convictions and moral judgements of the public” (248). What Harel has in mind here is the idea that all reflection about the meaning of a public document like the Constitution is influenced by the social-cultural milieu in which the reflection takes place. But because constitutional democracies like the United States are structured in such a way that they ensure that all members of the public (at least to a limited extent) can participate in defining this milieu (through participation in what Habermas would call the “political public sphere”), the decisions that members of the Court can be expected to reach about the meaning of the Constitution should 21 not be understood as being reached through the isolated reflection of a small set of jurists, but instead should be understood to be influenced (perhaps even significantly) by public opinion21. Harel’s argument calls to mind the recent explosion of literature surrounding the relationship between democracy and public debate22. Theorists who adopt a “deliberative democracy” approach to democratic theory have noted that liberal democracies, because of the combination of basic rights and relatively open and critical mass media institutions which they characteristically possess, enable a multiplicity of diverse perspectives on pressing political issues to be developed and utilized in public debate (Bohman, 2007). It is this feature of liberal democracy which Harel believes makes it possible for us to think of members of the Court as developing their interpretations of the Constitution through dialogue with the public. For members of the Court are, after all, human, and so can be expected to pay attention to public debate and to be influenced by it. So, in a relatively “open society” like the United States, in which all members of the public are (at least to a limited extent) able to participate in public debate about how the Constitution should be interpreted (among other political questions), the fact that the justices can be expected to be influenced by public debate must be understood to mean that the justices can be expected to be influenced by a process of deliberation in which all members of the public can participate (to a greater or lesser degree). 21In Harel’s own words: “… judges do not operate as moral experts who deprive us of the right to deliberate effectively on fundamental issues of justice. Instead, the boundaries of the rights they identify depend upon societal moral convictions. The process of identifying what these rights are is partially a process of identifying the socially accepted moral foundations in which they live. Delegating the power to identify the boundaries of rights to judges should not therefore be equated with alienating one’s participatory rights because delineating the boundaries of rights is grounded in societal value judgements.” (256). 22 See, for instance, Deliberative Democracy and the Epistemic Benefits of Diversity, James Bohman (2012), or The Epistemic Benefits of Deliberative Democracy, Robert Goodin (2017). 22 Alternatively, the legal scholar Christopher Eisgruber provides a “democratic-pedigree” account of the reason that the Supreme Court will tend to produce constitutional interpretations which accord with the convictions of the majority. Because appointment to the Supreme Court is a political process in which democratically elected representatives are involved (both, in the person of the executive, as the appointer, and, in the several members of congress, as scrutinizers of the appointment who are in a position to veto the executive’s proposal), we can expect, according to Eisgruber, that the constitutional interpretations produced by members of the Court will, at least generally speaking, tend to be comfortably consistent with “the American mainstream” (Eisgruber 71; and see Friedman’s The Will of the People: How Public Opinion has Influenced the Supreme Court and Shaped the Meaning of the Constitution, 373-376). This is because, if the executive made a practice of appointing, and legislators made a practice of approving, justices who could be expected to produce constitutional interpretations which deviated from widely shared public consensuses (where these exist), they would face the prospect of being voted out of office (though it is of course true that the mix of concerns which motivate voters includes more than who makes up the bench of the Supreme Court, such that the power of this disciplining mechanism should not be overstated). But of all three of these theorists, the most convincing argument (because it relies on an exhaustive analysis of the way that the court has actually functioned in American history coupled with a convincing account of the features of the Court that ensure that it will be incentivized to take public opinion into account) that the Supreme Court will tend to interpret the Constitution in roughly the same way as the general public is given by Barry Friedman himself, in his book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution. There Friedman presents a historical study of the relationship 23 between Supreme Court decisions and public opinion. He uses public polling data to attempt to show that divergences of opinion between the Court and the public are usually short-lived. This empirical result gives Friedman occasion to argue that Bickel’s counter-majoritarian difficulty (and, presumably, also the more general paternalistic critique which I have formulated above) is overstated and not cause for major concern about the normative desirability of the Court. Friedman holds that the use of strong judicial review should actually be seen as a practice which induces the public to engage in reflection about important constitutional issues23. The basic idea here is that rulings by the Court, because they attract a certain amount of publicity, provoke public attention and that the constitutional issues involved can thereby be expected to become the topic of public debate. He further claims that once a public consensus emerges from this (potentially long and drawn out) process of reflection (which, again, should be understood as jump-started by the Court’s taking up of the constitutional issue in question), the Court is incentivized to take notice of it and move quickly to modify its interpretation of the Constitution (if necessary) so that it comes to accord with the public’s. To support this claim, Friedman argues that there are good reasons to believe that the Supreme Court has not, and indeed cannot, depart too significantly from settled public opinion about the meaning of the Constitution without facing significant political repercussions from the public. He writes: “The most telling reason why the justices might care about public opinion, though, is simply that they do not have much of a choice. At least, that is, if they care about preserving the Court’s institutional power, about having their decisions enforced, about not being disciplined by politics. Americans have abolished courts, impeached one justice, regularly defied Court orders, packed the Court, 23 Christina Lafont has also recently made a claim like this in her article, Philosophical Foundations of Judicial Review (2016). 24 and stripped its jurisdiction. If the preceding history shows anything, it is that when judicial decisions wander far from what the public will tolerate, bad things happened to the Court and the justices.” (The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, 375). Friedman’s historically-informed argument asks us to attend to the actual history of the relationship between the Supreme Court and the American public. Well-known historical cases, like the Court’s ultimate capitulation to the political pressure brought-to-bear on it by the executive branch in the 1930’s (when the Roosevelt administration threatened to pack the Court in order to prevent it from continuing its pattern of nullfiying New-Deal legislation and was at least somewhat successful in rallying the public behind this proposal), testify to the fact that the Court’s actions are not actually cut off from certain political realities. The Court is actually, in Friedman’s estimation (echoing Hamilton’s remarks in the Federalist 78), quite dependent upon the public’s esteem for it24. Without it, its rulings would not be enforceable. Thus, the justices on the Court have a strong incentive to pay attention to shifting public opinion about the meaning of the Constitution when they are faced with controversial cases (which can be expected to attract significant public interest)25. 24 Friedman quotes former Justice Sandra Day O’Connor, who also echoes Hamilton in explaining the reasons that the court actually must pay attention to public opinion: “Justice O’Connor was quite frank in explaining that ‘we don’t have standing armies to enforce opinions.’ Instead, ‘we rely on the confidence of the public in the correctness of those decisions. That’s why we have to be aware of public opinions and of attitudes toward our system of justice, and it is why we must try to keep and built that trust.’” (The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, 370) 25 It should be noted here that, despite what my relatively impressionistic recapitulation of his account might suggest, Friedman is not claiming that the courts will always render decisions which correspond immediately with prevailing public opinion about the meaning of the Constitution. The claim that Friedman is making, instead, is that, over the long term, the Court faces significant political pressure to bring its practice of constitutional interpretation into alignment with prevailing public opinion (especially when there is near consensus among members of the public about the relevant constitutional issues). If this is right, then Friedman can make a strong case that he has shown that, appearances notwithstanding, the Court actually does not seriously threaten the public’s ability to 25 Whatever the reason which is supposed to ensure that the Court will produce interpretations acceptable to the people ends up being, theorists who make this argument will ultimately have to deal with the obvious counter-argument: that there appear to be practically feasible ways of allowing majorities to resolve Constitutional disputes such that, if the court can be counted on to basically mirror public opinion, it is unclear why it should not just be replaced with these more direct decision-making processes26. (2) Another possible argumentative strategy which might appropriately be fitted under this heading is the one developed by Eisgruber in his Constitutional Self-Government (although Eisgruber’s argument might also, and perhaps somewhat more naturally, be thought of as a variant of the arguments explicated below, in 1.2.3). Writing in the context of the American debate about the Supreme Court’s legitimacy, Eisgruber attempts to dissolve the paternalistic critique by arguing that strong judicial review should be understood as working not to interrupt self-rule, but instead to “implement a subtle form of democratic rule” (3). For Eisgruber, the central normative ideal which is at the core of American constitutional democracy, and which the Constitution must be understood as working to advance, is the ideal of “self-rule” (or what we have been calling “popular sovereignty”) [18]. But ‘self-rule’, for Eisgruber, means rule by all of the people (i.e. all of the citizens), not just a majority of them. This means that, if American democracy is to achieve the ideal of popular sovereignty, it must set up political decision-making procedures which ensure that the laws which ultimately regulate the lives of individual citizens are those which all (or at least virtually all) of the citizens can ultimately support. These laws would, on Eisgruber’s account, have to “respond to the interests govern itself, because the public retains the political power to force the Court to alter its interpretation of the Constitution if it departs too severely from public consensus (e.g. through electing representatives who will undertake to change the composition of the Court or alter its jurisdiction or apply other forms of discipline). 26 I will consider the responses which Friedman and others have made to this critique in chapter 3. 26 and opinions of all the people” (19). Or, for short, they would have to be laws which treat all citizens “impartially” (19). Once he has laid this principle down, Eisgruber believes that he is in a position to argue that the Court poses no threat to popular sovereignty. In fact, because of certain characteristics which it possesses (e.g. life tenure for members, concerns about maintaining public prestige on the part of its members, etc.), he claims that it is especially well positioned to adjudge constitutional disputes in an impartial way such that it can help to ensure that the goal of popular sovereignty is realized. Thus, for Eisgruber, in the final analysis the Court actually should not be seen as a paternalistic institution and the paternalistic critique is revealed to be a misguided concern. Indeed, instead of being understood as paternalistic, the Court should be understood as an institution which, because of certain features which ensure that its members will be able to judge constitutional disputes in a “disinterested” way, helps to ensure that the laws are impartial such that the ideal of popular sovereignty is realized (64). What Eisgruber has in mind, though initially somewhat puzzling, can be made clearer by means of an example. As I have just said, for Eisgruber, the American Constitution outlines various rights and procedures which, if they are interpreted in accordance with the correct understanding of the normative purpose of the Constitution (as the foundational document which launches the project of establishing popular sovereignty for American citizens), work to ensure that the laws will treat citizens in a disinterested way (i.e. not favor or harm any citizen arbitrarily). Consider, for instance, the right to free speech contained in the First Amendment to the Constitution. This right can be understood as being intended to ensure that the laws will not gradually be changed in such a way that they come to favor the interests of some powerful subset 27 of citizens27. The way this is supposed to work should be familiar to those who have taken at least a high school Civics class. In short, because each citizen, by virtue of the right to free speech, is empowered to participate in political debates, the possibility that lawmakers will be able to pass unjust and partial laws is lessened. Individual citizens are able to help forestall this possibility by exercising their right to speech and thereby making the general public aware of the potentially unjust nature of proposed legislation. The political backlash which the general public can bring-to-bear against legislators might then (at least in theory) work to counteract the possibility that the laws in question will be enacted. But, if the right to free speech came to be interpreted to mean that members of the public were allowed to speak only when they spoke in support of the powers that be (on the dubious grounds, for instance, that those powers are the only ones which work to preserve the people’s liberty and so all speech which opposed them is speech which is not really free), then the constitutional right to free speech would no longer work to ensure that the laws were impartial. In that case the normative ideal of popular sovereignty would be imperiled. What is needed, according to Eisgruber, then, is a method of ensuring that constitutional rights will be interpreted in such a way that they will play the role that they must if the American system of government is to realize the ideal of popular sovereignty (i.e. if the system of laws is really to be in the equal interest of all). Eisgruber believes that the Supreme Court’s empowerment to engage in strong judicial review represents a solution to this problem because the Court is structured in such a way that it is likely that its interpretation of the Constitution will ensure that constitutional rights do play the role of ensuring that the legislative process will 27 And, indeed, this was one of the principle justifications offered for the amendment when it was originally proposed. See Noah Feldman’s, The Three Lives of James Madison: Genius, Partisan, President for a discussion of this and of other considerations dealt with by the framers of the American Constitution. 28 produce laws that will generally be impartial. Again, this is because the members of the Court, because of their lifetime tenure and their desire to maintain their prestige as respectable public servants, will not readily be corrupted by the political process. They will tend, instead, to give to the Constitution interpretations which ensure that it functions as it was apparently designed to function – as a means for ensuring that the laws remain impartial and fair. On this line of thinking, the Court’s empowerment to engage in strong judicial review, then, should be expected to work to help ensure that the ideal of popular sovereignty was realized. With his focus on the structural characteristics of constitutional courts and his account of what it would mean for the ideal of popular sovereignty to be realized (impartiality in the laws), Eisgruber presents a different kind of account than the descriptive theories of Harel and Friedman. He gives us some intriguing reasons to believe that the Court should be granted the power to engage in strong judicial review. This is especially so if we take note of the various ways that majoritarian decision-making processes can tend to produce governing coalitions whose members are more concerned with ensuring their re-election by catering to their particular electoral base than with ensuring that the laws which they produce are impartial. We will see that many other theorists have fixed on the same features of the Court, particularly the way that it insulates its members from political tumult through lifetime tenure, in order to try to develop an account of its normative desirability. Although Eisgruber’s argument is interesting, one obvious potential deficit is its conception of the conditions which make it possible for a body such as a constitutional court to render neutral decisions. A critic might plausibly hold that, on Eisgruber’s account, the features of constitutional courts which allow them to render impartial political decisions are precisely those features which remove from their members the incentive to pay attention to contemporary 29 politics. But we might think that it is precisely through a knowledge of contemporary politics that one would be exposed to the pull and push of informed argumentation necessary in order to render sound judgements about the requirements which must be met in order for the laws to be impartial. I will consider this issue further in my critique of Habermas’s defense of the Court (in chapter 3). (3) The final theorist who must be considered in this section is Bruce Ackerman. Like Eisgruber and Friedman, Ackerman believes that popular sovereignty is a core normative ideal for American democracy and that the Court’s use of strong judicial review does not conflict with it because the Court does not characteristically countermand the will of “the People”28. Furthermore, Ackerman maintains that the Court plays an important role in ensuring that the normative ideal of popular sovereignty is realized by working to prevent politically empowered factions (which cannot credibly claim to speak on behalf of the People) from passing laws which would conflict with the will of the People (expressed through the arduous process of constitutional law-making). The Court’s use of strong judicial review is therefore, on Ackerman’s account, not only normatively unproblematic, but also normatively desirable. Ackerman’s account of the Court’s role in the legal system is quite complex, so I can only offer an impressionistic summary of it here (leaving out many interesting and important details). The core premise of Ackerman’s argument, first laid out in his book We the People: Foundations, is that the American democratic system should be understood as being characterized by two quite distinct forms of law and two corresponding processes of law-making. The first form of law is “higher law”. This is constitutional law – the basic rights and procedures 28 Ackerman capitalizes “the People” in order to distinguish the public opinion which he believes that the Court must respond to in order to plausibly be said to encourage popular sovereignty from the form of public opinion which is produced during periods of normal politics (which Ackerman takes to be, in a sense, unworthy of the Court’s attention). The meaning of this distinction will be made clear in what follows in this section. 30 which discipline all other laws and provide rules for their genesis and repeal. It is produced through the process of constitutional law-making. The second form of law is “ordinary law”. The laws which fit under this heading are those which are produced through normal, day-to-day, legislative processes. They are the laws which are developed in response to social conflicts and collective action problems which arise in the course of daily life. On Ackerman’s account, the process of ordinary law-making is normally dominated by political elites who are primarily motivated by concerns about re-election, the maintenance of prestige, economic self-enrichment, or increasing their own political power. The members of the public, because they tend to be focused on the various obligations of daily life, are typically content to allow this elite to shape the legal code. However, the public can sometimes become intensely involved in the political process. This happens when social movements bring to the public’s attention that the country faces issues of great (moral or practical) importance. When members of the public begin to perceive that the country is facing dire problems of this sort, they become politically activated and begin to participate fully in political life. Then, through collective deliberation, the individual members of the public constitute themselves as “the People”29 and work their way toward widely shared conclusions about how the laws should be changed so as to respond to the newly evident difficulties. This process generally leads to the demand that the higher law (stated in the form of the Constitution) come to be interpreted in such a way that it corresponds with the conclusions which have been reached and thereby begins to 29 It is not completely clear to me how Ackerman thinks of the transformation which takes place from time (1), sometime before the transformation of the several individual people who make up the legal community into “the People” takes place, and time (2), the time at which “the People” can be said to be constituted and to have formulated their position about how the urgent political questions facing them ought to be resolved. However, what is clear enough is that Ackerman believes that what popular sovereignty involves is the relationship between the public opinion which is formed during these latter periods and the legal code. For Ackerman, we have popular sovereignty when the public opinion which is formed during these periods of exceptional, “higher”, politics shapes the legal code, and we fail to have popular sovereignty to the extent that the public opinion which is formed during such periods does not have this relationship to the legal code. 31 discipline ordinary law in such a way that those conclusions become effective as law (thereby responding to the perceived crisis). Ackerman thinks of the back and forth from ordinary to higher law-making as part and parcel of the American democratic system: “American history has a cyclical pattern which we will learn to identify as the characteristic product of a liberal citizenry. One part of the cycle is characterized by normal politics, during which most citizens keep a relatively disengaged eye on the to-and-from in Washington while they attend to more personal concerns. Although this relative passivity meets the predictable disapproval of political activists who hope to transform the status quo, they find that their appeals to the People for a transformative politics are regularly rebuffed at the polls in favor of politics-as-usual. Then, for a variety of reasons, one or another transformative appeal begins to engage the attention of a wider audience. Often it requires a generation or more of preparatory work before a constitutional critique gains the mobilized support of enough citizens to push it onto the center of the political stage. Even then, it is hardly guaranteed success… But there have been times when political movements generated mobilized popular consent to new constitutional solutions.” (We the People, volume 1: Foundations, 31). Now, it is clear that, if Ackerman’s description of the political process is correct, then, if American democracy is to come anywhere close to realizing the ideal of popular sovereignty, it must contain some mechanism which ensures that the conclusions reached by the public in moments of widespread political participation ultimately work to influence the law over the long term. Otherwise, Ackerman’s account would have to be interpreted as a disillusioned realism 32 which shows that the members of the public, though they may momentarily force a re- interpretation of the higher law which works to influence ordinary law, ultimately do not live under laws which they can understand as having been given to them by themselves. In response to this worry, Ackerman holds that it is the Court’s ability to engage in strong judicial review which, historically, has worked to ensure that the decisions reached by the public during these periods of “higher politics” impact the process of ordinary law-making over the long term. The Court, on this account, plays a “preservationist” role in the American system. Its constitutional jurisprudence works to ensure that the decisions reached by “the People” in moments of political crisis continue to discipline the process of ordinary law-making until a new set of decisions is reached. Thus, the Court, for Ackerman, does not operate paternalistically, but instead on behalf of “the People” (as something like their steward). Ackerman therefore rejects critiques of the Court like Bickel’s: “In rejecting the countermajoritarian difficulty, I hardly wish to give the modern Supreme Court a blank check. I do not deny that it is undemocratic for Nine Old Lawyers to force the country to embrace the moral ideals that win their approval by a vote of 5 to 4. I mean, instead, to suggest a third possibility: that the modern Court has been doing a credible (not perfect) job interpreting the constitutional principles hammered out by We the People at the Founding, Reconstruction, and the New Deal (as well as at lesser constitutional moments).” [We the People, volume 1, Foundations, 261]. By referencing the Founding, Reconstruction, and the New Deal, Ackerman means to point to historical instances in which he believes that the members of the public did become politically engaged and worked to develop shared beliefs about how serious problems in 33 American society ought to be dealt with through the legal system. To take an example I have already mentioned once, Ackerman presents the New Deal period in American history as an instance in which, through a period of “higher politics”, a new public consensus regarding the economic relationship between capital and labor developed in response to the dire economic crisis of the Great Depression. The Roosevelt Administration’s economic proposals, presented as a New Deal for the American public, were the rallying point for this social movement. And the energy of the movement was channeled into the demand that the Constitution (which until then had been interpreted by the Court to rule out the legality of most ordinary-law restrictions on contracts between employers and workers) be interpreted in a way which allowed the reform regulations associated with the New Deal to come into effect. The Court’s subsequent constitutional jurisprudence, because it worked to reinforce this new way of interpreting the Constitution, is taken by Ackerman to support the ideal of popular sovereignty – because it ensured that the decisions reached by the public during this period both came into force and have remained effective (and will until they are revised by the public in another moment of “higher lawmaking”). Thus, the Court can be understood, on Ackerman’s account, as working to ensure that the members of the public live under laws which they have given themselves30. Ackerman’s account is certainly interesting. However, there are some potential problems with it. To consider just one: Ackerman is operating with a highly specific concept of popular sovereignty. It is unclear whether or not we ought to accept his claim that “the People” only 30 Ackerman’s account of the reasons why we can expect the Court to generally attempt to interpret the Constitution in accordance with the interpretations favored by the People basically tracks with Friedman’s account. For both Friedman and Ackerman, the Court is structured in such a way that, if it made a practice of regularly ignoring the public consensus about how the higher law should be interpreted, and especially if it did so when this consensus was the result of a period of “higher lawmaking”, it would face serious consequences. For Ackerman’s complex description of the way that social movements have succeeded in reforming the higher law see, We the People: Foundations, volume 1. 34 develop the laws under which they live in special, irregular, periods of “higher politics”. Indeed, many democratic theorists have thought that a normatively important characteristic of constitutional democracy is that it promises that all citizens will be allowed to participate, at any time, in developing the laws under which they live. If we accept Ackerman’s analysis, however, we seem to be required to understand the people to change the laws only in very limited, historically rare, circumstances. But this may be too much of a departure from the typical meaning of ‘popular sovereignty’ to convince us that Ackerman has truly understood what it would mean for American democracy to be structured in such a way that the people rule. And, if this is the case, then his defense of strong judicial review by the Supreme Court will not be able to function as a compelling response to the paternalistic critique. 1.2.2 The Argument that Strong Judicial Review is paternalistic, but that popular sovereignty is not necessary for legitimacy Another way to approach developing a justification for the Court’s empowerment to engage in strong judicial review is to simply accept the main claim made by proponents of the paternalistic critique (i.e. that the Supreme Court’s empowerment to engage in strong judicial review does indeed threaten to interfere with popular sovereignty), but then go on to deny that the ideal of self-rule, or popular sovereignty, is so important that any institution which interferes with it must be understood as normatively illegitimate (or as compromising the legitimacy of the constitutional-democratic legal system of which it is a part). This way of defending the normative desirability of strong judicial review is perhaps the best known in the American tradition. It is associated with the famous concept of the tyranny of the majority – the concern that a society in which the people actually did rule themselves would be characterized by irrational decisions and oppression of minority groups. 35 As I have just said, there are many examples of this argument available in the literature. One representative and succinctly stated account has been put forward by Larry Alexander (in a paper in which he is responding to Alon Harel’s justification of strong judicial review, described above). Alexander begins by staking out a purely consequentialist account of political legitimacy. He claims that “governmental institutions, including the institutions of judicial review, are justified solely by the consequences they produce…” (Is Judicial Review Democratic? A Comment on Harel, 238). He then joins this claim with the claim that it is, morally speaking, crucial that each citizen be treated with basic respect. He then denies that part of according to an individual the respect which he or she deserves is empowering that individual to help shape the laws under which he or she lives. Instead, for Alexander, what counts in determining whether or not an individual is accorded basic respect is the content of the laws which govern his or her life. If those laws are general and impartial in nature, and do not systematically deprive any citizen of the basic goods that he or she would need to live a decent life, then they do indeed treat each citizen with basic respect. Having said this much, Alexander goes on to claim that those rights which have been enshrined in the Constitution, if realized, would work to ensure that each citizen is protected from arbitrary violence (whether threatened by the state itself or individual citizens). But being subject to arbitrary violence would amount to being exposed to a form of disrespect. Therefore, Alexander concludes, even if the Supreme Court’s empowerment to engage in strong judicial review does prevent “the people” from producing authoritative interpretations of the Constitution (and therefore having a hand in governing themselves), the Court’s retention of this power is still normatively justifiable if it is more likely than alternative decision-making bodies to ensure that the Constitution is interpreted in such a way that citizens come to possess those rights which the 36 Constitution guarantees them and which, morally speaking, they must possess if they are to be shielded from arbitrary violence31. Bickel himself attempted to resolve the counter-majoritarian difficulty in a similar way. He claimed that it was self-evident that the public could not be counted on to “sustain a working system of general values.” (26). By this he meant that the public could not be counted on, if given the power to render authoritative interpretations of the Constitution (whether through democratic referendums or through selecting representatives to undertake this task for them), to ensure that all citizens possessed the basic rights necessary to prevent the “ordinary law-making process” (to use Ackerman’s term) from trampling upon the rights of minority groups in morally unacceptable ways. In contrast, he claimed (as have several of the figures we have already considered) that the Court, because its structure is such that its members enjoy “insulation” from the political process, and especially time to develop thought-out determinations about how the Constitution should be interpreted, could be counted on to ensure that the basic moral rights outlined in the Constitution will be interpreted in such a way that all citizens can enjoy them (i.e. that the law not only will “satisfy the immediate needs of the greatest number but also will strive 31 Indeed, for Alexander, there is nothing morally important about the ability of the individual to participate in democratic decision-making. On this line of thinking, the only reason that we might want to reserve for members of the public the ability to participate in determining the content of the legal code is instrumental. We would want to do so only if it turned out that by so doing we would make it more likely that the legal code would work to protect the individual’s basic rights and thereby reserve for the individual the respect which is his or her due. Thus, Alexander writes: “In short, I reject a moral right to democratic decision-making except as an infelicitous way of claiming democracy’s superiority on consequentialist grounds, including a consequentialism of rights protection. The alleged moral right to democracy surely does not follow from any plausible egalitarianism. It does not follow from equality of welfare (or the opportunity therefore), not from equality of resources, both of which might be better secured in a benign despotism. Nor does it follow from equality of respect; for what is up for respect here is not other people’s welfare, but other people’s judgements about what everyone’s moral rights and duties are. Those judgements may be wrong, in which case respecting them may entail allowing those whose judgements they are to impose immoral constraints and duties on other people. Respect for persons does not extend to respecting their violations of others’ rights, and respect cannot be demanded for erroneous moral judgements in the form of acceding to them. There is no right to violate others’ rights so long as enough people agree with you.” (Is Judicial Review Democratic? A Reply to Harel, 281). 37 to support and maintain enduring general values” [27]). Jesse Choper develops a similar position in Judicial Review and the National Political Process32. And Lawrence Sager, in his 2004 book Justice in Plainclothes: A Theory of Constitutional Practice, also says much the same. Sager, writing about the American Constitution and Supreme Court, begins by asking the following question: “Why do we have a Constitution and why do we value a constitutional practice that takes some important questions out of the hands of the popular political process and distributes authority over them to some combination of the historical political decisions that produced the enacted Constitution, on the one hand, and the decisions of contemporary constitutional judges on the other?” (29). Here Sager, by focusing on the concept of basic rights, is following Bickel’s lead in presenting constitutionalism (understood as a regime of inviolable basic rights) as a check on popular sovereignty. The rights embedded in the Constitution, on this sort of account, are to be thought of as ensuring that majorities cannot use the electoral system to gain power and abuse minority groups. Setting the problem up this way allows Sager to conclude that strong judicial review is justifiable because judges are experts in the meaning of the rights inscribed in the Constitution and can be counted on to ensure that those rights are secured for otherwise vulnerable members of society. Thus, strong judicial review is justified, since it is an institution 32 In his review of the debate about strong judicial review Zurn picks out the relevant passage from Choper. Choper claims that the American Supreme Court (and presumably constitutional courts like it) is better suited than the people themselves to determine which values the Constitution must protect because members of the Court are insulated from the hurly-burly of politics which renders individual citizens incapable of sustained and principled reflection. In Choper’s own words, The Supreme Court, “… is insulated from political responsibility and unbeholden to self-absorbed and excited majoritarianism. The Court’s aloofness from the political system and the Justices’ lack of dependence for maintenance in office on the popularity of a particular ruling promise an objectivity that elected representatives are not – and should not be – as capable of achieving. And the more deliberative, contemplative quality of the judicial process further lends itself to dispassionate decision making.” (quote cited in Zurn, 38). 38 which works to ensure that government will be just (but not necessarily under the control of the people). Sager accordingly concludes: “To make sense of our constitutional practice, we have to see it as justice-seeking; that is, as serving the end of making our political community more just. Central to our constitutional practice is the partnership between the popular constitutional drafters who typically paint with broad strokes and the popular constitutional interpreter who is concerned with bringing rich content and close detail to the general principles announced in the text. The justice-seeking account of our constitutional practice depends upon the belief that this partnership, over time, will be a reasonably good guide to the most critical requirements of political justice.” (Justice in Plainclothes: A Theory of American Constitutional Practice, 71). With their arguments in favor of some degree of paternalism, Choper, Bickel, Sager, and Alexander seem to present a reasonably straightforward and realistic justification of strong judicial review. Their arguments are pragmatic and can obviously be expected to seem most congenial to us at moments when we fear that the rights of some disempowered group are about to be trampled upon by an antagonistic political movement which has come to power. Then it is easy to want the courts to interfere on the grounds of justice, damn the consequences for the abstract political value of general popular sovereignty. However, as Jeremy Waldron has pointed out, it is not at all clear from the historical record that strong judicial review (at least as the Supreme Court has practiced it in America) can be counted on to protect the rights of vulnerable citizens from such tyrannical majority groups. 39 Indeed, the history of the American Supreme Court contains several ignominious decisions which functioned to deny vulnerable members of society those rights which they desperately needed to maintain their safety and dignity when they were under assault from more powerful majority groups33. A critic might thus charge proponents of strong judicial review who rely on this argument with either viewing the history of the Court through rose-colored glasses or with not providing strong enough reasons to believe that the Court will, in the future, interpret the Constitution in such a way as to maintain the dignity of vulnerably citizens when it is threatened by the dynamics of “ordinary politics”. 1.2.3 The Argument that, although Strong Judicial Review is superficially paternalistic, it ensures that citizen can identify with the laws, and so is not a threat to popular sovereignty A further way that some theorists have approached justifying the Court’s ability to engage in strong judicial review is to argue that, though the Court’s exercise of this power might appear to be paternalistic, it ultimately ensures that the laws which regulate social life will be normatively justifiable and therefore will be such that most members of the public will be able (by critically analyzing the laws and discovering the normative principles manifested in them) to recognize them as normatively appropriate. But in that case, the argument goes, the apparently paternalistic nature of strong judicial review would be revealed to be mere appearance. This would be because strong judicial review would have to be understood as functioning to ensure that a condition to which the vast majority of citizens are presumably committed (i.e. living under normatively justifiable laws) would be realized. Thus, the legal system’s use of strong 33 The two most commonly cited examples of the Court failing in this way are probably Korematsu v. United States and Dred Scott v. Sanford. The particulars of these decisions are well known, so I will not summarize them here. I cite them by name only to call it to our attention that these decisions so spectacularly failed to protect the minority groups whose interests were involved in them from harms that befell them due to majoritarian decision-making processes that their names have been seared into the minds of most all of those who are even slightly familiar with the legacy of the American Supreme Court. 40 judicial review would have to be understood as working to bring about an end to which the people are already committed, and this is the same thing as saying that it would have to be understood as working to enable popular sovereignty. We have already seen Eisgruber make an argument like this. However, two other prominent and important versions of the argument can be found in the work of (a) Ronald Dworkin and (b) John Rawls. 1.2.3.1 (a) Ronald Dworkin’s Defense of Strong Judicial Review To explicate Dworkin’s argument (which he continuously refined over the course of his career), we need to understand (1) the characteristics which Dworkin believes the laws must possess in order to be normatively justifiable, (2) how Dworkin thinks of the American Constitution and the nature of constitutional interpretation, and (3) what Dworkin means when he refers to the identification of the public with the laws. (1) In the first chapter of his important book, Freedom’s Law, Dworkin introduces his concept of democracy. He refers to this as “the constitutional conception of democracy” (17). In terms of a formula, the constitutional conception of democracy holds that a legal community is democratic if it is structured in such a way that “collective decisions [i.e. decisions about how social life should be regulated] be made by political institutions whose structure, composition, and practices treat all members of the community, as individuals, with equal concern and respect” (17). One thing to note about this definition is that it associates democracy not with particular processes, but with particular political principles. Democracy, on this account, is about whether or not the laws (as produced and applied by the relevant institutions) manifest a commitment to egalitarianism34. 34 Dworkin is aware that this definition of democracy may strike some as idiosyncratic. Indeed, he recognizes that democracy is most frequently associated with particular decision-making procedures, most obviously popular 41 Now, Dworkin takes the establishment and protection of democracy in the United States to be a normative goal of first importance. Thus, he is committed to seeing as normatively desirable any institutional arrangement which would contribute to ensuring that the egalitarian conditions which he takes to be definitive of democracy are realized. This is ultimately the first step that Dworkin takes in justifying strong judicial review. He tries to show that the use of strong judicial review, as opposed to an alternative form of constitutional interpretation, makes it more likely that the laws will be egalitarian, and therefore normatively justifiable, than would otherwise be the case. (2) To see why Dworkin believes that strong judicial review should be expected to work to ensure that the laws manifest a commitment to egalitarianism, we must gain a sense of Dworkin’s concept of the Constitution and his theory of constitutional interpretation. Dworkin is famous for theorizing, against originalists like Antonin Scalia and the legal positivists (most famously J. L. Austin and H.L.A. Hart), that the American Constitution should be read as an expression of abstract moral principles which is intended to chart a moral course for the country35. The Constitution, on his account, lays out a set of procedures and rights, which are elections and referendums, not a set of egalitarian outcomes. However, Dworkin maintains that this common concept of democracy does not adequately capture the normative substance of the term. Here Eisgruber’s formula of democracy as rule by all of the people should return to mind, for Dworkin, like Eisgruber, clearly understands rule by the people to mean rule by laws to which all could consent. This is why he insists that democracy is something other than majority rule. 35 To make a very complex matter overly simple, we might say that originalists generally claim that, when disputes about the meaning of the Constitution arise, the document should be interpreted in accordance with the understanding of its meaning which the framers of the Constitution would have endorsed. How to determine what this understanding would have been is, of course, an incredibly fraught project. Legal positivists generally hold, instead, that controversies about the meaning of the Constitution must be resolved by paying attention to the semantic content of the various clauses of the Constitution (and in cases where the text does not admit of a discernible answer, judges must simply resolve the law in accordance with their discretion). I hasten to add to this description what will be immediately obvious – that both of these characterizations are severely over-simplified. However, I do not have space to provide a more complete explication of either originalism or legal positivism here. See Dworkin’s A Matter of Principle for his account of both doctrines. Also see H.L.A. Hart’s The Concept of Law for a classic statement of legal positivism and Antonin Scalia’s A Matter of Interpretation for a classic statement of originalism. 42 expressions of certain moral principles, which are supposed to constrain the process of ordinary law-making. The moral principles, which the procedures and rights in the Constitution are expressions of, on Dworkin’s reading, are essentially the familiar egalitarian ones. Thus, Dworkin is committed to the claim that, if the Constitution is interpreted correctly (i.e. if the egalitarian principles which it actually establishes, through constitutional rights and procedures, as higher law are correctly identified and applied), then the laws produced by the country’s law- making institutions will be normatively justifiable. This is because the Constitution, as higher law, will control and shape the institutions of ordinary government and the laws which they promulgate, and it will, as egalitarian, ensure that those institutions and laws conform to the egalitarian principles which Dworkin believes work to render them normatively justifiable36. At this point in the argument, Dworkin has identified a clear normative role which strong judicial review might play in the American legal system. If he can show why we ought to expect the court produce “correct” interpretations of the Constitution more often than would other potential interpretive arrangements, then he will have shown that strong judicial review is normatively desirable because it would be the interpretive institution most likely to ensure that the laws which govern society manifest the commitment to egalitarianism which they must in order to be normatively appropriate. Dworkin relies on two main comparative arguments to show that strong judicial review is especially well-suited to generating interpretations of the Constitution which would have the required characteristics. I will refer to these as (i) the forum of principle argument (given at A 36 We should notice, here, that whether or not we accept Dworkin’s account will in part depend on whether or not we join him in seeing egalitarian moral principles as normatively legitimate. Dworkin seems to want to adopt a moral realist strategy in his defense of these, but analysis of this would be outside the scope of my project. See Dworkin’s well-known essay, Objectivity and Truth: You’d Better Believe it, and the introduction to his book, Sovereign Virtue to get a sense of his thinking about moral realism and related issues. 43 Matter of Principle, 11 and Freedom’s Law, 32-33), and (ii) the framing argument (given at A Matter of Principle, 69-71). (i) The more persuasive of Dworkin’s two arguments is the forum of principle argument. It is also a central argument for Dworkin. He gives a version of it in at least three of his most important texts –Law’s Empire, A Matter of Principle, and Freedom’s Law. The argument begins by identifying some of the decisions which the American legal system must make as decisions which involve “matters of principle” (A Matter of Principle, 24). Matters of principle are “questions about the rights that individual citizens have against each other and against the society as a whole.” (A Matter of Principle, 24). So, decisions having to do with matters of principle are roughly to be understood as decisions about the meaning of the rights enshrined in the Constitution. The next step Dworkin takes is to draw a comparison between strong judicial review and majoritarianism as mechanisms for interpreting the Constitution. A majoritarian approach to constitutional interpretation would involve either the use of popular referendums to settle questions of constitutional interpretation or would involve allowing elected representatives to resolve constitutional disputes through the ordinary electoral and legislative processes. Dworkin claims that a consideration of the relative merits of these alternative forms of interpretation will show that strong judicial review is superior from the perspective of ensuring that the laws manifest a commitment to egalitarianism. So, the question before us now is this: How does Dworkin argue against majoritarianism and in favor of strong judicial review? Against majoritarianism, Dworkin argues that, if the American legal system was to use a majoritarian decision-making mechanism to resolve disputes about matters of principle (i.e. 44 constitutional interpretation), we could expect the laws, at least some of the time, to fail to treat individual citizens as though they were worthy of equal concern and respect. This would be true, on Dworkin’s account, even if his account of the appropriate way to interpret the Constitution was widely accepted. Dworkin also argues that, when legal systems use strong judicial review to interpret the meaning of constitutional rights (assuming that the members of the court accept something like Dworkin’s interpretive philosophy), the interpretations which are produced would have the effect of ensuring that the laws would generally treat individuals as though they were worthy of equal concern and respect. This is the positive side of his argument. I will consider both sides in turn. First, the negative side of the argument. Dworkin offers multiple reasons to be skeptical about majoritarianism as a form of constitutional interpretation. One of the most apparently powerful is the concern (which we have just seen in our review of the previous set of theorists) about the possibility of tyrannical majorities. This is the worry that, if questions about the meaning of the Constitution were to be settled in majoritarian ways, politically powerful groups might see fit to deny politically dis-empowered groups equal standing in order to maintain their political power (or to gain some other kind of benefit) [A Matter of Principle, 24-25]. This is to say that, even if legislators or citizens who are tasked with resolving questions about the meaning of constitutional rights were to understand themselves as tasked with providing a moral reading of those rights (as Dworkin claims they should), the temptation to privilege themselves might be overwhelming. Linares Lejarraga, in his article, Constitutional Rigidity and the Default Rule, points to a thought experiment that Dworkin develops (in his late text, Justice for Hedgehogs) to make the reasons for Dworkin’s skepticism about the ability of majorities to make principled decisions 45 clear. Dworkin asks us to imagine a familiar example from applied ethical theory – the lifeboat example. In this well-known case, survivors of a shipwreck are clinging to a lifeboat which cannot support them all. Dworkin then asks what the appropriate decision-making mechanism for deciding who should be allowed to stay on the boat, and who must be thrown over, would be. He argues that, in a case like this, because the boat’s occupants are very likely to view the question under discussion to be one which must be resolved in their favor, they are not likely to be able to maintain a commitment to egalitarianism (because they are likely to be deeply invested in their own survival, not to mention the survival of family members or friends). The use of majority-rule, even when all involved agree, on an abstract-intellectual level, that egalitarianism is the moral principle which should guide their decision-making, then, would be morally inappropriate. In order to maintain a practical commitment to egalitarianism (meaning a commitment upon which the parties to the relevant decision would actually act), some alternative decision-making mechanism would have to be used. When we apply this lesson to the question of constitutional interpretation, the root of Dworkin’s concern becomes clear. In its simplest form, the concern is that, when it comes time to resolve matters which citizens are likely to be highly invested in resolving in accordance with their own wishes, individual citizens cannot be trusted to resolve matters of principle in good faith. Instead of making up their minds in accordance with their considered judgments about which rights citizens, as possessors of equal standing and dignity, should possess, they might be expected to vote (if an electoral decision-making process was to be used) to privilege themselves politically or in favor of interpretations of the Constitution which would privilege their loved ones over other members of society. A legal system which allowed matters of principle to be resolved in majoritarian ways, then, would be liable to fail to produce laws which manifested a 46 commitment to egalitarianism, because it would likely not be able to ensure that constitutional rights, which are supposed to enforce egalitarian outcomes in the law-making process, would play this role. Another reason that Dworkin rejects pure-majoritarianism is his concern that members of the public are not especially well-suited to answering questions about which rights citizens should possess. This concern represents a sort of Platonic distrust of the intellectual capacities and virtues of the general public. Indeed, Dworkin believes that resolving matters of principle correctly requires that one possess a fully worked-out theory of basic rights and is capable of engaging in subtle, complex, forms of reasoning (A Matter of Principle, 24). But he also believes that many members of the general public may not be up to this task (A Matter of Principle, 24). In that case, decisions about matters of principle, when made by legal systems which make use of majoritarian decision-making procedures, might fail to resolve questions of right correctly. And then the guarantee that citizens be accorded equal respect and standing by the law would not be likely to be met. Having seen why Dworkin is skeptical about majoritarianism, we can now consider the positive side of his argument. In short, Dworkin holds that strong judicial review, when it is carried out by judges who have accepted Dworkin’s account of what it means to correctly interpret the Constitution37, can be expected function to ensure that laws which regulate social life are such that each citizen is accorded equal concern and respect because of (1) the skills which judges characteristically possess (i.e. the ability and willingness to engage in prolonged 37 I will go into some more detail on Dworkin’s account of constitutional interpretation in chapter 3. For now, what I mean to refer to is Dworkin’s claim that the Constitution should be understood, contra originalists and legal positivists, as a document which aims to launch a legal system which will, in turn, realize “abstract moral principles”. Dworkin believes that understanding the Constitution this way means that, when we interpret the rights and procedures which it lays out, we must see them as attempts to contribute to this project and therefore interpret the Constitution as a whole as an attempt to bring the moral principles we find in it to realization. 47 and complex moral reasoning) [A Matter of Principle, 25] and (2) the relative isolation from popular pressure which judges characteristically enjoy (A Matter of Principle, 28). Taken together, Dworkin holds that these two characteristics enable review of legislation by the Court to function as a “forum of principle” in which we can expect that decisions will be made in good-faith (i.e. that the decision-making of the justices will be guided only by their conception of what rights each individual citizen should possess given that the Constitution is directed at ensuring that all citizens should be taken to possess equal standing, and be seen as deserving of equal concern and respect) by competent judges. And, if this is so, then strong judicial review should be expected to produce legally binding constitutional interpretations which regulate the law-making process in such a way that the laws which it produces will manifest a commitment to egalitarianism. The idea that constitutional courts represent a “forum of principle” in which constitutional interpretation will be guided only by disinterested argumentation is one which many commentators have found dubious. I will consider several strong critiques which have been made against arguments of this kind below (in section 1.3). (ii) On top of the forum of principle argument, Dworkin also offers another interesting (albeit secondary) argument in favor of strong judicial review. I will call this the framing argument. The framing argument seeks to justify the Court’s use of strong judicial review on the grounds that, when matters of principle come before the Court, the Court characteristically presents them to the public in such a way that the public can be expected to develop an appreciation for the rights-issues which are involved in the matter (A Matter of Principle, 69-71). This focus on the Court’s “activation” of the general public is reminiscent of Ackerman’s account (described above). Dworkin holds that this feature of strong judicial review works to 48 make the public more likely to see the relevant issue in such a way that their political activity (including the choices which they make in the voting booth) will be directed by a commitment to seeing their fellow citizens (and themselves) as worthy of equal concern and respect. On this basis, he concludes that strong judicial review should be understood as a feature of the American legal system which contributes to the system’s producing laws which manifest a commitment to egalitarianism. We will see a similar version of this argument below when we turn to consider Rawls’ argument in favor of strong judicial review. (3) Now that we have seen how Dworkin argues in favor of strong judicial review, we need to consider how he rebuts the paternalistic critique. That is, how does Dworkin attempt to show that strong judicial review actually enables popular sovereignty38? Frank Michelman provides a succinct answer to this question in his commentary on Dworkin (in Brennan and Democracy). There Michelman explains that Dworkin believes that citizens can understand the laws under which they live to be laws which they themselves are committed to, laws which they can identify with, just so long as the laws actually meet the egalitarian criteria Dworkin lays out as definitive of democracy. “Professor Dworkin proceeds to state certain rational preconditions for this sort of identification. You cannot, he says, reasonably ally your political agency with that 38 The reader should be aware that another possible reading of Dworkin’s account downplays the claim that strong judicial review produces laws which members of the public can identify with and stresses, instead, Dworkin’s claim that the Court’s empowerment to engage in strong judicial review functions to produce normatively justifiable laws. I am influenced, here, by Michelman’s reading of Dworkin’s account, so I have emphasized a reading of Dworkin on which his justification of strong judicial review is grounded upon its tendency to produce laws with which members of the public could identify. Dworkin could just as well be presented as a theorist who takes strong judicial review to be justified simply because it produces morally justifiable laws (i.e. laws which embody a commitment to egalitarianism). If we read Dworkin that way, then he belongs (with Sager, Bickel, and Alexander) among those theorists who hold that the Court’s interference with popular sovereignty is justified because it produces morally desirable outcomes (i.e. it ensures that the laws under which we live are morally justifiable). Since my purpose in presenting this introduction is simply to give an impression of the different arguments about strong judicial review which are currently in circulation, I do not take it to be incumbent upon me to pronounce upon which of these two readings most closely adheres to Dworkin’s own words. I take both to be plausible readings which can be supported by different sections of Dworkins’ various texts. And both positions are certainly well-represented in the literature. 49 of any collective body that does not by its actions maintain a due respect for your own moral and intellectual singularity, and for the interests you accordingly take in both the contents of collective outcomes and your capacities to influence them.” (30). The idea here is that, if the laws under which one lives actually do manifest a commitment to egalitarianism, then, as a rational agent, one must see them as just laws, laws which are normatively appropriate because they treat each citizen as though they possess equal dignity. These laws would be rationally justifiable such that, even if they were not produced by, or directly responsive to the opinion of, the individual him or herself, still they would have to be seen as deserving of respect. But if this is true, then the laws could, in a certain way, be understood by the individual as having been willed by that individual him or herself, since each person must, on pain of irrationality, want to live under laws which are worthy of respect. Therefore, because strong judicial review, at least on Dworkin’s account, works to ensure that the laws actually do have this egalitarian character, it cannot be thought of as interfering with the ideal of popular sovereignty. Again, this is because popular sovereignty, ultimately, requires that the people live under the laws which they would choose for themselves, and the laws produced by strong judicial review would be such laws. Thus, the interference with popular sovereignty pointed out by Bickel is, on this account, revealed to be merely apparent interference, not really an impediment to popular sovereignty. 1.2.3.2 (b) John Rawls Another influential account which belongs under this heading is John Rawls’ theory of justice (developed first in A Theory of Justice and then modified in Political Liberalism)39. 39 The reader should note that Rawls develops his thinking about strong judicial review in general terms. So, whereas the previous authors reviewed tend to think about judicial review in terms of the American Supreme Court, 50 Rawls argues that the use of strong judicial review may be normatively desirable for constitutional democracies like the United States because it can work to ensure that a fundamental normative goal of the citizens of those societies (i.e. a goal to which all reasonable citizens are, at least insofar as they are reasonable, committed) is realized. But because, in that case, strong judicial review would function to ensure that a widely shared goal was realized, it could not be understood to be contrary to the commitments of the public. Thus, the paternalistic critique would be rebutted. In order to ground his argument, Rawls first must develop an account of the basic normative commitments which are shared by most citizens of constitutional democracies. Rawls attempts to develop such an account in Political Liberalism. There he articulates a (“political, not metaphysical”40) “conception of justice: which he calls “justice-as-fairness” (9). For Rawls, conceptions of justice are, very roughly, accounts of the way that the state should act and be organized. In Rawls’ own words, they are specifications of “… the fair terms of social cooperation between citizens regarded as free and equal and fully cooperating members of society…” (3). They provide a “…publicly recognized point of view from which all citizens can examine before one another whether their political and social institutions are just” (9). Rawls uses more general language. Nevertheless, we can find in Rawls’ account a defense of the American Supreme Court’s empowerment to engage in strong judicial review. To make this translation from the general to the particular, all that is needed is to interpret Rawls as saying that the Supreme Court’s empowerment to engage in strong judicial review would be justifiable if it used its power in the general way that Rawls claims constitutional courts should use their power. 40 Rawls’ use of the phrase “political, not metaphysical” is intended to indicate that he is not engaged in a project which seeks to find an “ultimate” ground for the principles of justice. That is, Rawls does not claim to be in a position to identify universally valid principles of justice which would have an unchallengeable status because they are grounded upon indubitable metaphysical or religious truths (or anything of the sort). Rawls’ project, instead, is to make explicit those normative commitments which are shared, at our particular, historically contingent, moment in time, by all reasonable citizens (whatever their comprehensive doctrine) and to provide a theoretical account of them. Again, Rawls calls this a “political” project because it does not seek to reveal an unchallengeable moral truth, but instead to make clear whether or not there is some set of principles and social-political arrangements which a wide swath of the public might agree upon such that the society erected upon those principles would be characterized by social stability. 51 Rawls claims that justice-as-fairness is the conception of justice which could “gain the support of an overlapping consensus” of reasonable (though conflicting) comprehensive doctrines in democratic societies characterized by the “fact of reasonable pluralism.” (Political Liberalism, 15). This is to say that Rawls maintains that justice-as-fairness represents that conception of justice which most citizens of democratic societies should be expected to endorse (at least upon reflection) [Political Liberalism, 97]. Rawls explains the existence of this convergence of normative commitments by noting that democratic societies tend to have “public political cultures” which ensure that citizens, though they might disagree on most everything else, will generally share a set of fundamental normative ideals and principles (Political Liberalism, 97). Rawls uses the methodological device of the original position to demonstrate that the two basic principles of justice which justice-as-fairness identifies are the principles which most members of democratic societies would endorse as appropriate criteria for regulating the basic structure of society, including the essentials of society’s basic law, the constitution. As is well known, the original position is a thought-experiment which is supposed to help us unpack the implications of the basic political commitments which we, as members of a democratic society, can be expected to share with our fellow citizens. This small set of commitments includes, most importantly, a commitment to being reasonable (this includes being committed to organizing society in such a way that it can be understood as realizing the ideal of “fair social cooperation [Political Liberalism, 51]). The original position thus asks us to formulate basic principles from behind a “veil-of-ignorance.” From this epistemically restricted perspective we would be forced to choose reasonable principles because we would not know how to privilege our own interests 52 given the possibility that we might occupy any social identity once the restrictions imposed by the veil were removed41. As is well known, Rawls argues that, if we adopt his method and reason from the original position, we will end up affirming two basic principles of justice. Then, through our reflection on what would be involved in applying these principles, we will ultimately arrive at the principle of liberal legitimacy (Political Liberalism, 136) 42. As long as the original position has been set up in such a way that it actually succeeds in modelling the shared ideals which most members of democratic societies accept (i.e. as long as most members of democratic societies actually are committed to being reasonable and the original position actually does direct our reflection in such a way that the principles which we would affirm from its perspective would be the ones to which we would be committed if we were reasonable), then the principles and commitments we 41 The original position, then, helps us to unpack the implications of our reasonableness. It is a thought-experiment which makes clear to us what we, as reasonable, are already committed to, before we engage in theorizing about how society should be structured. 42 Rawls uses the four-stage sequence of application as a model for how we ought to apply the principles of justice to the circumstances of our social life. At the first stage, Rawls demonstrates that the principles of justice represent the basic (and highly abstract) normative commitments which reasonable people can be expected to share. He uses the device of the original position to model the commitments which reasonable people, qua reasonable, would have to accept in determining which basic principles they should use to regulate their lives-in-common. At the second stage, Rawls introduces the concept of the constitution, or higher law, as a way that the abstract principles of justice can begin to take on concrete meaning. Here the severe epistemological constraints of the original position are relaxed somewhat. In contrast to the near total ignorance which is characteristic of the veil of ignorance as imposed in the first stage, we now gain more information about the society in which we live and are tasked with coming up with a set of political institutional arrangements and practices which would work to realize, under these newly revealed conditions, the basic principles of justice we have affirmed in the first stage. In other words, we make use of the newly revealed information about the society to which the basic principles must apply to help us determine which basic institutional arrangements would best realize the basic principles under these conditions. In the latter two stages we do much the same. That is, we gain even more information about the society we are to live in and make the principles of justice even more concrete through deciding on the legislative and administrative actions which the principles, now interpreted as constitutional prescriptions and practices, would require us to take. Rawls’ defense of strong judicial review, since strong judicial review has to do with developing binding interpretations of the constitutional higher law, belongs in the second stage (when we are deciding upon the essentials of the constitution). Thus, when I say that Rawls argues that strong judicial review is normatively desirable because it works to ensure that a shared normative commitment is met, what I mean to say is that Rawls holds that the use of strong judicial review (as a practice which generates binding constitutional interpretations) is normatively desirable because it works to ensure that the constitutional higher law will discipline the ordinary law produced by the legislature and enforced by the administration in such a way that the ordinary law will manifest the basic principles of justice (in the most complete way possible given the society under consideration) which Rawls grounds in the first stage. 53 affirm when we think from the original position ought to indeed turn out to be those to which most members of society are at least implicitly committed. Because I have limited space I cannot go into considerations about whether or not the original position actually does model commitments shared by most members of democratic societies. Instead I will simply state those principles and commitments which Rawls holds would be chosen if we did organize our thinking about constitutional democracy through the device of the original position. The principles of justice Rawls affirms are: “a. Each person has an equal claim to a fully adequate scheme of equal basic rights and liberties, which scheme is compatible with the same scheme for all; and in this scheme the equal political liberties, and only these liberties, are to be guaranteed their fair value. & b. Social and economic inequalities are to satisfy two conditions: first, they are to be attached to positions and offices open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least advantaged members of society.” (Political Liberalism, 5-6). And the liberal principle of legitimacy, which Rawls believes follows from the principles of justice (see Political Liberalism, 137, FN 5) is this: “… our exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason.” (Political Liberalism,137). 54 At this stage, then, Rawls can claim to have reconstructed the basic normative principles to which, as reasonable, individual citizens of constitutional democracies are committed. They are committed, in short, to ensuring that the constitutional law which organizes their interactions (as legal subjects) will work to realize their shared commitment to the basic principles of justice. Now, in order to make the argument that strong judicial review is normatively desirable, Rawls must provide us with an argument which shows that the use of constitutional courts to interpret the Constitution (in which the principles of justice are expressed as concrete rights and procedures) in a legally binding way should indeed be expected to work to ensure that the Constitution actually does function to realize the principles of justice which it was designed to implement. That is, he must show why we should expect a constitutional court to produce interpretations of basic constitutional rights which would ensure that those rights would work to discipline the process of ordinary law-making in such a way that the basic principles of justice which the rights are supposed to express would indeed work to discipline the output of the legislative process. In attempting to meet this burden, Rawls provides an interpretation of constitutional rights which conceptualizes them as beyond the reach of the ordinary process of legislation. The idea is that free and equally situated individuals would agree, if they were tasked with designing a constitution, to “take certain items off the legislative agenda” (Freeman, 352). In order to ensure that their political life was consonant with the basic principles of justice, they would enshrine a set of basic rights in the constitution. Rawls’ argument that it would be appropriate to task constitutional courts with interpreting these rights and striking down legislation which violates them is grounded on long- standing worries about whether or not ordinary law-making processes can be expected to 55 consistently produce legislation which would not violate basic rights. The main concern here is that, unless the ordinary process of law-making is disciplined by institutions which will step in to prevent the passage of laws which would violate the basic rights, there will be no reason to presume that the output of that process will accord with the basic rights identified in justice-as- fairness and inscribed in the constitution. But, in that case, there would be no reason for members of the public to presume that the laws which govern their daily lives are worthy of respect. In order to ensure that the laws live up to these basic principles, then, it makes sense to nominate a particular institution to prevent violations from occurring. For Rawls, constitutional courts which engage in strong judicial review can, for the reasons which Dworkin and Eisgruber both point out (i.e. the insulation of their members from political pressure, the expertise of the justices and their access to a sophisticated legal community in which constitutional questions can be subjected to critical debate) play this role in a legal system. We can therefore see strong judicial review as a mechanism which people would reasonably desire in order to “protect themselves against their own irrational inclinations… by accepting certain impositions designed to undo the unfortunate consequences of their imprudent behavior.” (A Theory of Justice, 218-219). Constitutional courts exercising strong judicial review would, on this account, function as exemplars of public reason. That is, they would secure in the minds of the public the belief that the laws are legitimate (because they would be seen as working to prevent the laws from coming into conflict with the basic principles embodied in constitutional rights). This is why Samuel Freeman, writing about Rawls’ defense of strong judicial review, says that Rawls’ account of strong judicial review ought to be read in terms of “precommitment43”. Again, the main idea here 43 “So conceived, judicial review is a kind of rational and shared precommitment among free and equal sovereign citizens at the level of constitutional choice… By granting to a non-legislative body that is not electorally 56 is that strong judicial review can be justified on the grounds that it would be reasonable to accept the institution if we were tasked with designing a constitution (and institutions for constitutional interpretation) which would work to ensure that our political lives were governed by the basic principles of justice. Something like the American Supreme Court is a fit institution for ensuring that the constitutional rights which are supposed to ensure that the principles of justice are realized in daily life actually perform this function because its members will be insulated from political pressure and have sufficient time to render thoughtful interpretations of the Constitution. We should thus see strong judicial review’s interference with the ordinary process of legislation as something which we should endorse because it works to secure a fundamental normative commitment, the commitment to ensuring that the laws under which citizens live will embody, and be able to be presumed (by all citizens) to embody, the basic principles of justice which are disclosed to us through the thinking from the original position. 1.2.4 The Argument that, although Strong Judicial Review is superficially Paternalistic, it works to ensure that the conditions necessary for individual participation in the political process are met such that it should not be seen as a threat to, but instead as enabling, popular sovereignty The final defense of strong judicial review which I will consider in this section focuses on the salutary impact that strong judicial review can have on the process of democratic decision making. John Hart Ely and Robert Post (among others) have attempted to show that the American Supreme Court’s empowerment to engage in strong judicial review is normatively desirable because it helps to ensure (through providing citizens with certain rights and upholding accountable the power to review democratically enacted legislation, citizens provide themselves with a means for protecting their sovereignty and independence from the unreasonable exercise of their political rights in the legislative process. Thereby, they freely limit the range of legislative options open to themselves or their representatives in the future.” (Freeman, 353). 57 the requisite forms of politics) that all citizens are able to participate in the process of democratic deliberation which ultimately determines which pieces of legislation become law such that, whatever laws the political process ultimately produces, the individual citizen will be able to see himself or herself as having been able to take part in the authorship of them and thereby will be able to identify with them. If this is right, then the paternalistic critique appears to be more or less de-fanged. This is because the Court will then have to be understood as an institution which acts to enable popular sovereignty. Even though it may do so by engaging in paternalistic means, still the ultimate result of its practice of constitutional interpretation will be the achievement of a political situation in which individuals participate in (or are at least always allowed to participate in) fashioning the legal code which regulates their lives. Probably the most famous version of this democratic-process legitimation of strong judicial review is to be found in John Hart Ely’s book, Democracy and Distrust: A Theory of Judicial Review. Ely begins his argument by developing an account of the American Constitution on which it should be understood as a document which is primarily concerned with “process writ large” (87). By this Ely means that he understands the Constitution to be an attempt to specify how political disputes should be resolved (i.e. which processes and procedures should be used to resolve them) within the American legal system. Specifically, Ely takes the rights and procedures laid down in the Constitution to be directed at “ensuring broad participation in the processes and distributions of government.” (87). He sees in these procedures and rights an attempt to, “ensure that in the making of substantive choices the decision process will be open to all on something approaching an equal basis, with the decision-makers held to a duty to take into account the interests of all those their decisions affect.” (100). 58 By providing an account of the purpose of the Constitution, Ely lays the groundwork for his defense of strong judicial review. For, if he can provide good reasons for us to believe that a constitutional court like the Supreme Court is likely to develop interpretations of the Constitution which would ensure that it fulfills its purpose (as Ely understands it), then he can show that strong judicial review is normatively desirable insofar as the Court’s interpretations of the Constitution can be expected to work to ensure that citizens, through the rights which they possess and the political procedures which determine how the laws are to be shaped, are in a position to participate in the production of the law44, and this is the essence of popular sovereignty. Ely gives us two reasons to believe that constitutional courts are well situated to undertake the form of interpretation which he believes that they should. First, he claims that the justices are likely to be insulated from political pressure to render partial decisions (favoring some group’s control over the political process, for instance) because they are “political outsiders”. This should by now have the sound of a familiar refrain. Indeed, we have seen a similar idea in Dworkin conceptualization of the Court as a forum of principle (and in Eisgruber’s and Rawls’ account of the “disinterestedness” of the justices). Second, Ely holds that members of the Court, because they are likely to be lawyers, are also likely to be experts in judging processual questions (e.g. whether or not all members of society are being given an equal opportunity to influence the laws). These two features of the Court, according to Ely, make it so that the Court is a good forum for interpreting the Constitution in such a way that the rights 44 Ely refers to the form of interpretation which is suggested by his reading of the constitution as a “representation- reinforcing” approach to constitutional interpretation. It is an approach to constitutional interpretation which focuses primarily on “unblocking stoppages in the democratic process” – by which Ely means ensuring that all citizens are equally able to participate in shaping the legal code and are not blocked from doing so by discrimination or otherwise illegitimate power formations. 59 and processes which characterize the American legal system will work to ensure that all citizens can participate in shaping the legal code. If Ely’s description of the way that the Court is structured is correct, then we can see why he believes that the American system should retain strong judicial review. The paternalistic critique is dealt with, by Ely’s account, because constitutional interpretation is conceptualized as a process which works to ensure democratic control of the legal code. Ely himself draws the relevant analogy – the Court functions like a referee in a sporting event (105). Even though the referee has power which the players do not, the referee, him or herself, does not determine the ultimate outcome of the game (or even the outcome of particular sequences within the game). Instead, the referee functions to ensure that the rules of fair play are enforced. So long as these rules are not violated, so long as all the players conduct themselves according to the rules, the way that a sequence of play turns out is not up to the referee. Instead, the shape the sequence takes is determined by the players. Similarly, Ely would like us to believe that the members of the Court, though they possess a power which the members of the general public do not – to shape the meaning of the constitutional basic law of the country – do not (or at least do not completely) determine the substance of the legal code. Instead, they (assuming that they adopt Ely’s view of the normative purpose of the Constitution) work to ensure that the practice of politics is open and inclusive. But this means that members of the public can come to identify with the laws because they know that they have an opportunity (preserved for them by the Court’s constitutional power) through participation in the political process, to influence them. Therefore, it cannot be the case that we 60 should understand the institution of strong judicial review to interfere with popular sovereignty. It should be understood to work, instead, to enable it45. One interesting element of Ely’s argument which becomes apparent when reviewed immediately after Dworkin’s is that the argument is predominantly concerned with the political process. It justifies the Court’s empowerment to engage in strong judicial review on the grounds that this is necessary in order to ensure that individual citizens can participate in this process of law-making. Dworkin’s argument, on the other hand, seeks to justify the Court’s empowerment on the grounds that it is necessary to ensure that the laws which govern citizens’ lives are, in some sense, the correct laws (i.e. morally justifiable laws). Dworkin can then rebut the paternalistic critique on the grounds that the Court ensures that something that most all citizens should be expected to want – just laws – comes about. Broadly speaking, then, we can say that Dworkin’s argument in favor of strong judicial review is focused on the substantial outcomes which the Court produces, whereas Ely’s is focused on the political process which the Court safeguards. A further thing to notice about Ely’s argument is that, this time like Dworkin’s, its success depends upon the members of the Court adopting the philosophy of constitutional interpretation which Ely recommends. It is one thing to give reasons in favor of believing that the justices will be well-situated to carry out a particular form of constitutional interpretation, it is another to provide reasons to believe that the justices will be likely to engage in that form of interpretation at all. We will see, in our review of the critiques of strong judicial review that this is a problem with the attempt to justify strong judicial review which has not gone unnoticed. For, 45 This argument represents Ely’s answer to Bickel’s counter-majoritarian critique, which I have been referring to as an instance of the paternalistic critique. For a simply stated version of the argument, see Democracy and Distrust: A Theory of Judicial Review (102-104). 61 even if we could imagine a form of interpretation which, if the justices only could be expected to regularly practice it, would render strong judicial review normatively desirable, still we would not yet have shown why we ought to make use of strong judicial review. To accomplish this, we would also have to provide arguments which show why we can reasonably expect the justices to undertake the type of interpretation which we believe they ought to undertake (and to be skillful or competent in the undertaking of this form of interpretation). 1.3 Reconstruction of the Arguments Made by the Various Prominent Judicial Review Skeptics Having accomplished our review of the four main types of justification which are commonly offered in favor of strong judicial review, we are now in a position to begin our review of the different critiques developed by the judicial review skeptics. The five theorists whose work I will focus on in this section are Jeremy Waldron, Walter Bellamy, Larry Kramer, Christopher Zurn, and Mark Tushnet. Although there are other sophisticated and important critics of strong judicial review participating in the contemporary debate, I have chosen to focus on these five because they are frequently cited and because, taken together, they represent something close to a complete spectrum of the different arguments which are commonly given against the normative desirability of strong judicial review. It is useful to think of judicial review skepticism as either thoroughgoing or limited (or in-between these two extremes). On one end of this spectrum, the thoroughgoing end, are figures like Walter Bellamy, Mark Tushnet, and, to a large extent, Jeremy Waldron. These thinkers are strongly opposed to strong judicial review on principled grounds. Bellamy believes that empowering a constitutional court to engage in strong judicial review involves setting up a relationship of domination between certain classes of citizens; while Tushnet, for his part, thinks that the use of strong judicial review tends to diminish the ability and willingness of other 62 branches of government to weigh in on questions of constitutional interpretation. Strong judicial review is therefore, on both of these accounts, straightforwardly and seriously normatively undesirable. Jeremy Waldron also holds strong judicial review to be significantly normatively problematic – so much so that he claims that it should almost always be rejected. However, according to Waldron, we can justify making use of strong judicial review in cases of serious political pathology (in which the use of the courts to arrive at definitive interpretations of the Constitution could be expected to preserve important rights for otherwise politically imperiled groups). Alternatively, Larry Kramer and Christopher Zurn represent a limited form of skepticism which is willing to accept strong judicial review as an element of the legal system so long as alternative forms of constitutional interpretation are also established and are politically effective. Zurn conceptualizes this in terms of dialogue between different forums of constitutional interpretation. We might think of these thinkers as attacking the “judicial supremacy” component of strong judicial review (as opposed to strong judicial review itself). This means that Kramer and Zurn accept that strong judicial review can be a healthy component of American democracy, but only when other forms of binding constitutional interpretation are also developed such that the Court would no longer be the exclusive, or “supreme” interpreter of the Constitution. I will review these positions in the order that I have introduced them. Then, in a brief concluding section, I will take stock of the various positions and identify those which seem to be most damning for the defenders of strong judicial review. At the end of the day, the somewhat lengthy exercise which we have carried out in this chapter will have been worth the effort because it will help us to contextualize Habermas’s position when we are finally in a position to reconstruct it and subject it to critical analysis (at the end of chapter 3). 63 1.3.1 Thoroughgoing Critique of Strong Judicial Review: Walter Bellamy, Mark Tushnet, and Jeremy Waldron Walter Bellamy develops his challenge to strong judicial review in his book, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy. There Bellamy, following Philip Pettit, endorses the republican conception of freedom as non-domination (as opposed to positive or negative accounts of freedom46) as a normative criterion of first importance. Freedom as non-domination is a theory of freedom which holds that individuals are free when they are not involved in relationships of domination. A relationship of domination exists when one person is “under the power” of another such that, even if the empowered individual is not exercising his or her power to impact the choices of the other person, he or she might exercise that power at any time. The normative insight which is operating in the background here is that human beings cannot flourish under conditions of domination because human flourishing involves being able to develop and undertake distinct life projects in accordance with one’s considered reflections about the nature of the good life. But the ability to do this is significantly compromised if the individual believes or feels him or herself to be subject to the will of another person. 46 The well-known distinction between positive and negative accounts of freedom was developed by Isaiah Berlin in his essay, Two Concepts of Liberty. Much has been written about Berlin’s distinction, and many commentators have revised or extended it in different ways. Oversimplifying, we can say that a negative theory of freedom conceptualizes freedom in terms of the absence of physical constraint or coercion. On this account, an individual, X, is free just so long as he or she is not subject to immediate threat or to physical constraint. A positive theory of freedom, on the other hand, conceptualizes freedom in terms of rational self-determination. On this account, an individual, Y, is free just so long as he or she is acting in a rationally controlled way (i.e. autonomously). Eric Nelson, in his article, Liberty: One Concept too Many?, has made the interesting proposal that the positive concept of freedom should actually be thought of as a maximally negative account insofar as most philosophers who have endorsed it have thought of freedom as involving both the absence of physical constraints or threats and the absence of overriding psychological compulsion (through the achievement of a state of rational autonomy). Pettit’s concept of republican freedom was intended to serve as a middle ground between positive and negative accounts. For Pettit, the individual is free just so long as he or she is not subject to immediate physical constraint or threat and is not a party to a relationship of domination. Thus, Pettit seeks to expand the negative concept of freedom, but does not accept the positive theory of freedom. 64 Bellamy’s argument against strong judicial review is that it ultimately sets up a relationship of domination between citizens and members of the court. “Of course, courts claim to offer a fair and impartial process, where all are treated as equals. But when it comes to the making of decisions about our collective life, they lack the intrinsic fairness and impartiality of the democratic process – that of treating each person’s views equally. For constitutional judicial review seems premised on an unjustified assertion that those on the bench are more equal than the rest. Given their freedom to interpret the law in diverse and inconsistent ways, according to the moral and legal positions they hold, with no more authority than any other legal interpreter apart from the mere fact that they are in a position to impose their opinion, their rule cannot be other than arbitrary and hence dominating.” (166-167) As we can see, Bellamy’s reasons for denying the normative desirability of strong judicial review (which are quite reminiscent of Learned Hand’s) have to do with the very structure of the court. Whereas Dworkin, Eisgruber, and Ely (and virtually all proponents of strong judicial review) understand the way that the courts are structured to work to help ensure that they will be able to arrive at sound interpretations, Bellamy focuses on the power- differential which exists between citizens and justices. It seems undeniable that members of a constitutional court possess a power to shape the legal code which individual citizens lack. But, for Bellamy, setting up the legal system so that this sort of imbalance exists guarantees that individual citizens will tend to see themselves as in a domination relationship with the justices. Importantly, this will be so even if the justices always interpret the constitution in a way that has good normative consequences. The point is that the mere use of this sort of non-representative 65 institution tends to diminish the ability of individual citizens to see themselves as autonomous and capable of charting their own course. Thus, Bellamy concludes that the use of strong judicial review tends to diminish the prospects of individual flourishing and so should be rejected47. In Taking the Constitution Away from the Courts, Mark Tushnet stakes out a position which is, in some respects, quite similar to Bellamy’s. Like Bellamy, Tushnet objects to constitutional interpretation being left to courts on principled grounds. However, whereas Bellamy’s objection is grounded upon his republican conception of freedom, Tushnet bases his objection on a more ambiguous commitment to democracy (Taking the Constitution Away from the Courts, 31). We have already, in our impressionistic review of Bickel and Hand, seen how this kind of critique can be made. In short, constitutional courts, because they are empowered to interpret the constitution, exercises the ability to determine the way that the constitutional higher law will discipline the process of ordinary lawmaking. But, in that case, “the people” (however defined) seem to be cut off from participation in the process which determines which characteristics the laws which work to regulate their lives will possess (because those characteristics may, to a large extent, be determined by the higher law itself). What is interesting about Tushnet’s argument is that, while it frames this conceptual problem in basically the same way that Bickel and Hand did, it introduces a specific hypothesis which is meant to further our concern about the normative desirability of strong judicial review. 47 Notice that, although representative democracies might be though to be arranged in such a way that many domination relationships exist, Bellamy believes that constitutional courts are particularly problematic institution because it seems to escape democratic control in a way that the legislature and the executive do not. Thus, Bellamy is not making the claim that all representative institutions are dominating. He is claiming, instead, that there is something particularly problematic about the Supreme Court. Because its members exercise power over the course of their lives (unless impeached), the members of the public over whom they hold sway cannot effectively influence them (or, at least, the influence which they hold over members of the court is significantly different than the sort of influence that they hold over elected officials). Thus, from Bellamy’s perspective, when we are dealing with the courts we must admit that we are dealing with a one-way relationship of domination (the justices being in a position of dominance over against regular citizens). 66 For Tushnet, one consequence of making use of strong judicial review is the development of the problem of “judicial overhang” (Taking the Constitution Away from the Courts, 58). This is the possibility that treating the constitution as a legal document can be expected, over time, to transform its nature in the minds of citizens such that it comes to be thought of not as the foundational statement of a morally charged political project, but as a complex set of principles and procedures which requires expert interpretation in order to be understood. The problem with coming to understand the constitution in this way is that, over time, citizens may come to think of the laws which govern their lives as things which they have no business interpreting or attempting to change (in the same way that an academic philosopher would, so long as he or she was not afflicted by delusions of grandeur, have to admit that the finer points of medical practice were beyond his or her comprehension). The use of strong judicial review, therefore, is problematic for Tushnet because he believes that it can be expected to make the project of democratic popular sovereignty less likely to succeed (at least insofar as the success of this project depends on the maintenance of a liberal democratic political public culture within which individual citizens are encouraged to participate in critical analysis of the laws, including thinking about how they could be improved). As I have already said, Bellamy and Tushnet represent one end of the spectrum with regard to the question of judicial review. In response to positions like theirs, proponents of strong judicial review sometimes respond with an attempt at principled realism. They suggest that the legal system would be thrown into turmoil if the constitutional courts were not empowered to interpret the constitution. In that case, the story goes, we would not be able to get clarity on what the constitution allows or prohibits, such that the constitution could no longer function as “higher law” (and this, they say, would be accompanied by all of the disastrous outcomes alluded to in 67 the introduction). I will not attempt to say anything definitive about this possibility at this point except to note that the question is ultimately an empirical one. Indeed, as Tushnet (and Waldron and Kramer as well) points out, familiarity with the actual history of the American Supreme Court suggests that the Court has not always functioned to produce normatively compelling interpretations of the Constitution and has, at least sometimes, worked to undermine predictability about its meaning (see Taking the Constitution Away from the Courts, 95-129)48 Jeremy Waldron Having reviewed the objections of Tushnet and Bellamy, I now turn to probably the best- known judicial review skeptic: Jeremy Waldron. Waldron attacks strong judicial review in his article, The Core of the Case Against Judicial Review and in his book, Law and Disagreement. In Law and Disagreement, Waldron introduces his basic account of the characteristics which render a legal system legitimate. For Waldron, the purpose of the legal system is to enable citizens to develop just (i.e. fair) terms of cooperation in the face of real-world conditions of concerted and reasonable (i.e. not obviously superficial or confused) disagreement (Law and Disagreement, 7). Waldron claims that, under these conditions, the only decision-making mechanism which would be just is a majoritarian one. The reason for this is that, under conditions of reasonable disagreement, the use of non-majoritarian decision-making mechanisms would imply that the epistemic capacity of some minority group of citizens (that group which would be empowered to make decisions) is to be valued more highly than that of the majority. For, otherwise, there would be no reason to prefer the will of the minority to that of the majority. 48 We need only recall the distinct periods in the Court’s history which Ackerman identifies (see above) to get a sense of the way that the Court has, at least some of the time, undermined predictability about the Constitution’s meaning. The Court’s shift from the laissez-faire approach characteristic of its Lochner era jurisprudence to its post- Roosevelt-ian willingness to see state regulation of the economy as constitutional serves as one obvious example of its willingness to shift the Constitution’s meaning in unexpected, or at least wholly novel, directions. 68 But the only reason we could have to value the epistemic capacity of a minority group more highly than the epistemic capacity of a majority group is the knowledge that this minority group is more likely to be correct (about whatever issues are up for debate) than the majority group. However, in a situation in which reasonable debate is ongoing (such that no group is able to convincingly demonstrate that its preferred position on some substantive political issue is correct), this would be unjust on processual grounds because it would amount to favoring the minority group’s epistemic capacities over the majority group’s epistemic capacities arbitrarily (since, under conditions of reasonable disagreement, we could not be sure whether or not our analysis that the minority group was more likely than the majority to be correct would be, itself, correct). This means that those who hold out for a legal system which employs non-majoritarian decision-making processes are (most likely) engaging in what we might call epistemic self- aggrandizement –“insist[ing] unreasonably on what appear to [them]… to be the right solution[s] to the urgent problems we face.” (Law and Disagreement, 118). It would be more in line with justice, on Waldron’s account, to adopt a majoritarian decision-making procedure under these conditions because, at least in that case, each citizen’s input in the political decision-making process would be weighted equally. Waldron’s attack on strong judicial review follows straightforwardly from his argument in favor of majoritarian-ism. On Waldron’s account, there are two main types of argument which are regularly made in favor of judicial review – results-based arguments and process-based arguments. Note that this roughly tracks with what we found above in our analysis of Dworkin, Rawls, and Ely. According to Waldron, most defenders of judicial review combine these types of arguments in the following formula: Strong judicial review is justifiable because it guarantees: 69 “A good decision and a process in which claims of rights are steadily and seriously considered.” (The Core of the Case Against Judicial Reivew, 1347). Waldron’s basic argument against the first, results-based, way of arguing in favor of strong judicial review is that determining that constitutional courts generally make good decisions when they engage in constitutional interpretation presupposes that one has the epistemic capacity to determine which side of the several ongoing, reasonable, debates about constitutional interpretation is correct. But, at least for many of the decisions which the U.S. Supreme Court has made over the past fifty years, debate about how the Court should have decided is still ongoing. This suggests that we should not use a results-based test to attempt to justify strong judicial review because, in so doing, we would be presuming to know what we cannot know (i.e. engaging in the problematic form of epistemic self-aggrandizement which Waldron identified): which side of an ongoing reasonable debate about how the court should have resolved controversial constitutional issues was correct. Furthermore, Waldron’s chief difficulty with processual justifications of strong judicial review is obvious given his normative point-of-departure. Indeed, strong judicial review is a straightforwardly anti-majoritarian decision-making procedure. Thus, for Waldron, it cannot be justified on processual grounds and legal systems which make use of it thereby incur a legitimation deficit49. 1.3.2 Moderate Skepticism: Larry Kramer and Christopher Zurn 49 Waldron’s ultimate conclusion about strong judicial review is that it cannot be justified except in cases where the political environment is so problematic that members of the public cannot be trusted to interpret the constitution in accordance with a commitment to basic fairness and concern for one another. Unlike Dworkin and Ely, Waldron does not imagine that the “tyranny of the majority” is a constant threat to the maintenance of decent democratic societies. However, he does recognize that there are some circumstances in which majorities can act despotically. These are the only cases in which Waldron would countenance the claim that strong judicial review might be normatively justifiable. However, Waldron does not appear to believe that any of the legal communities commonly recognized as constitutional-democratic societies meet these conditions at present. Thus, he accepts a much more optimistic account of majoritarian political processes than does Dworkin (and the other defenders of strong judicial review). 70 The final set of judicial review skeptics who I will consider are those who take strong judicial review to be normatively problematic for essentially the reasons that Bickel and Hand do, but who, also, are committed to reform of the Court (as opposed to doing away with it altogether). I take Larry Kramer and Christopher Zurn to be two good representatives of this way of thinking, though they approach the question of judicial review from different perspectives. In short, Kramer develops a critical-historical analysis of the Supreme Court’s use of strong judicial review, whereas Zurn develops a more traditional normative analysis from the perspective of deliberative democratic theory. I consider their accounts in turn. Larry Kramer, in his book The People Themselves: Popular Constitutionalism and Judicial Review, offers a historical account which shows that the currently dominant doctrine of “judicial supremacy” is a recent innovation in the American constitutional imagination. Judicial supremacy is the political position that the Court should be the institution which possesses final authority to interpret the meaning of the constitutional text. Kramer assembles historical evidence to make it clear that this way of thinking about the Court’s mandate is relatively new in American history. Prior to its development, members of the American public generally took constitutional interpretation to be a political process in which they, rightly, were to play an active role (through public debate and acts of civil disobedience, among others). What Kramer succeeds in doing is making it clear that the judicial review proponents’ ostensibly realistic disavowal of the public’s ability or willingness to participate in resolving important constitutional questions is not grounded upon historical experience. This suggests that a main argument which we have seen deployed, over and over again, against popular constitutionalism – the idea that unserious or irresponsible majorities ought to give way to intellectually gifted and responsible jurists when it comes time to answer the difficult questions 71 posed by constitutional law – is flimsy. Kramer therefore suggests that, at a minimum, reforms should be made to the system of constitutional law. It must be opened up to greater participation from the public (though, of course, it is not entirely clear what this would mean). Christopher Zurn concurs with Kramer’s conclusions in his book, Deliberative Democracy and the Institutions of Judicial Review, and goes beyond them by offering some concrete proposals for reform. Zurn begins by offering an account of the problem with strong judicial review which echoes that of Bickel and Hand (but which is also influenced by Zurn’s deliberative theory of democracy). He then outlines five proposals for reforming the legal system which he believes could work to reduce, as far as possible, the conditions which give rise to the paternalistic critique. Zurn’s first step in formulating his critique of strong judicial review is to endorse a normative standard which can be used to critically evaluate the desirability of forms of constitutional construction or interpretation. He holds that “from the pure normative point of view of democratic constitutionalism, the power of constitutional change inheres only in the people themselves, specially formed into a constituent assembly and exercising their constituent power.” (262). Zurn is relying on a more basic principle of deliberative democracy in supporting this claim. The basic idea, which we will consider in great detail when we turn to our analysis of Habermas’s political philosophy, is that democratic institutions are desirable because they allow for public deliberation to take place and to become politically effective. This consequence of democratic institutions is desirable, in turn, because it works to ensure both a form of autonomy (what Habermas would call “public autonomy” or “popular sovereignty”) and to ensure that the laws are basically rational. Cashed out in terms of a criteria for analyzing the normative desirability of forms of constitutional interpretation, Zurn’s criteria can be simply stated: Only 72 those constitutions which are developed by the people, and are subject to their considered revisions, should be considered normatively legitimate. Once Zurn has affirmed this normative standard, he provides us with reasons for believing that the use of strong judicial review inevitably violates it. Zurn uses the phrase “protection-elaboration transmutation” to describe how constitutional courts will inevitably modify the meaning of the constitution (even if they only intend to discover its “original meaning” and apply it faithfully) [258]. The strongest reason that Zurn thinks that the modification of the Constitution’s meaning is inevitable is that application of the Constitution’s relatively ambiguous clauses to ever-changing circumstances will require the justices to make determinations about the import of constitutional language without the benefit of sure guideposts pointing out the way that the framers of the Constitution would have responded to these circumstances. In the act of applying a constitutional provision, then, the justices inevitably extend the meaning of the Constitution in unexpected ways. But this means, for Zurn, that they violate the normative standard just outlined – that the people are the only ones in a position to legitimately modify the Constitution. Because Zurn does not believe that it would be wise to attempt to abolish constitutional courts (since this might well bring about significant political instability and because the legalization of the Constitution is an irrevocable part of our form of life such that some legal institution must be responsible for generating definitive statements about the meaning of the Constitution), his response to this problem is to propose reforms which would lessen, as far as possible, the tension between the deliberative ideal and the Court’s interference with it. He proposes that, in addition to strong judicial review, legal systems develop “self-review panels in legislatures and regulatory agencies, mechanisms for inter-branch debate and decisional 73 dispersal, easing formal amendability requirements, and establishing civic constitutional fora” (274). These alternative forms of constitutional interpretation could be empowered to produce readings of the Constitution which would be competitors with those produced by the Court (though, as Zurn admits, some institution or procedure would have to be empowered to develop interpretive decisions which would be, at least for some length of time, definitive50). Thus, a process of dialogue about the Constitution, which the public could more easily participate in, would be inaugurated. This could work to lessen the Court’s interference with the deliberative ideal because it would enable a more inclusive form of deliberation about the Constitution to take place and become politically effective such that members of the public could recognize, in the definitive interpretations of the Constitution which impact their lives, their own contributions as shapers of the Constitution. Zurn is relying on Habermas’s theory of deliberation in order to support this conclusion (Zurn, 341). As we will see presently (in chapters 2 and 3), Habermas plausibly connects open processes of public communication which produce (communicatively-processed) public opinion (which he describes as taking place in the “public sphere”) to high quality decisions about political issues (including how the Constitution should be interpreted). If this is right, then proposals like Zurn’s and Kramer’s seem to make good sense. Adopting them would have the effect of improving the interpretations put forward by constitutional courts by ensuring that their decision-making processes about the Constitution were structured in such a way that they would gain the epistemological benefits that come along with open and inclusive public deliberation. 1.4 Conclusion 50 Zurn does not designate which of these institutions would possess this power in his account. However, in keeping with his attempt to democratize constitutional interpretation, we might propose that legislative review panels, or civic forums in which constitutional issues are formulated and later, after a period of democratic will-formation, resolved through a vote, could play this role. 74 Having now reviewed the arguments of various prominent theorists in the debate about judicial review, we are finally in a position to make some generalizations. To begin with, we have seen that, if the pro-judicial review theorists I have chosen for review are representative of the best of that side of the debate, there are at least four main strategies which are used to justify strong judicial review. These include the argument that strong judicial review actually does not tend to produce constitutional interpretations which deviate from the opinion of the majority of people, the argument that strong judicial review is necessary in order to secure morally important outcomes (regardless of interference with popular sovereignty), the argument that strong judicial review produces laws which the public can identify with because the laws are egalitarian (or otherwise reasonable), and the argument that strong judicial review produces laws which the public can identify with because it ensures that members of the public will be able to actively participate in determining the content of those laws. One the other side of the question, Waldron, Kramer, Tushnet, Zurn, and Bellamy suggest multiple interesting arguments that could be made against strong judicial review. To pick just two, Waldron argues that the use of strong judicial review is unjustifiable because it represents a form of epistemic injustice – in which the views of a minority group, the members of a constitutional court, are unjustifiably taken to be of a higher quality than those of the majority of citizens. Bellamy, on the other hand, argues against judicial review on the grounds that it represents a relationship of domination – where a certain group of people is always empowered to exercise their authority over another group (even if they only rarely do exercise their authority). These generalizations will be useful when we attempt to determine how Habermas’s argument about strong judicial review fits into the overall debate. They also give us some sense 75 of the difficulties involved in justifying strong judicial review. I will make use of these insights when I present my critical reconstruction of Habermas’s argument, in chapter 3. Having now achieved a basic sense of the issues at play in the debate, and the main arguments which are regularly made in the literature, we are ready to shift gears and introduce Habermas’s complex social theory. This we must do in order to understand the peculiarities of his own account of the normative desirability of strong judicial review (as well as the limitations which his theory places upon the sort of justification of the practice which he can ultimately endorse). 76 Chapter 2: Habermas’s Theory of Modern Rationality, Society, and Legitimacy Now that I have characterized the state of the debate about the question of judicial review, I can begin the process of presenting Habermas’s intervention in that debate. As I have already indicated, the first step in this process is to present a summary account of Habermas’s social theory. I will do this through an analysis of one of the main lines of argumentation (Habermas’s critical engagement with Max Weber’s theory of social rationalization) which can be found in Habermas’s Theory of Communicative Action (though I will also frequently draw on Habermas’s other writings when doing so will enable me to explicate a point more clearly). My reason for proceeding this way is that the Theory of Communicative Action represents the most mature statement of Habermas’s basic social theory. It is, as Jean-Marc Durand Gasselein has written, “the base of the trunk from which the tree [Habermas’s overall project in social theory] grows and subsequently branches out”51. Reconstructing Habermas’s social theory is my task in the present chapter. Once this is done, I will, in chapter 3, make use of my presentation to develop a further reconstruction, this time of Habermas’s thinking about strong judicial review. After this is completed, I will then finally be in a position to subject Habermas’s limited defense of the institution of strong judicial review to critical scrutiny (also in chapter 3). Habermas’s social theory is quite complex. It combines multiple sophisticated analyses of diverse topics that are usually treated in isolation (including the theory of macro-social development, the theory of “modern” rationality, and the theory of social action). Different interpreters have adopted different approaches to presenting it52. My strategy is to first make 51 See Durand-Gasselein’s introductory essay, entitled Introduction – the work of Jurgen Habermas – Roots, Trunk, and Branches, in Philosophical Introductions: Five Approaches to Communicative Reason. 52 Consider, for instance, the distinct approaches taken by four scholars and popularizers of Habermas’s work: Thomas McCarthy, Gordon Finlayson, David Ingram, and John Sitton. In his early and seminal study, The Critical 77 some general introductory comments about what Habermas hopes to achieve by developing his theory (2.1) and to then briefly detour to a critical reconstruction of the basics of Max Weber’s own, better-known, social theory (2.2). I introduce Weber because Habermas understands his social theory to be, in several respects, a critical response to Weber’s project53. Thus, by recalling the social phenomena which Weber was interested in explaining, and the conclusions which he reached, we can gain an appreciation for the questions which Habermas also means to address. Once this intellectual background has been filled in, I will explain how Habermas criticizes Weber and develops his own conclusions about the nature of contemporary (rationalized) societies (2.3). Once I have reached this point, I will be in a position to explain Theory of Jürgen Habermas, McCarthy presents Habermas’s social theory largely through a critical analysis of competing social-theoretic approaches. McCarthy introduces Habermas’s account by contrasting it with positivistic social theory and the larger intellectual tendency toward scientism. By contrast, in his short work, written for a popular audience, Habermas: A Very Short Introduction, Finlayson presents a topical introduction to Habermas’s project in social theory. For Finlayson, Habermas’s account is best thought of as a systematic combination of five distinct, but interrelated, research projects. These are “1. The pragmatic theory of meaning; 2. The theory of communicative rationality; 3. The programme of social theory; 4. The programme of discourse ethics; 5. The programme of democratic and legal theory, or political theory.” (xviii). David Ingram builds on Finlayson’s topical introduction strategy, and blends it with wide-ranging intellectual historical analysis, in his recent study, Habermas: Introduction and Analysis. Whereas Finlayson found five distinct projects in Habermas’s social theory, Ingram identifies nine distinct programs. The programs address “1. The nature of social action (focusing on communicative action), 2. The nature of meaningful speech (focusing on the relationship between validity and language), 3. The nature of reason (focusing on practical, or communicative, reason), 4. The nature of knowledge and truth (focusing on the relationship between language and reality), 5. The nature of society (focusing on the dual nature of society as lifeworld and system), 6. The logic of child development and the logic of social evolution (focusing on the psychological “decentering” of the ego and the correlative modernization of society), 7. A discourse ethical account of morality (focusing on the use of real and simulated dialogue in resolving conflicts justly), 8. A discourse theoretic account of law and democracy (focusing on the use of a proceduralist paradigm in resolving tensions between liberal and welfare paradigms), and 9. A diagnosis of social pathologies and ideological delusions (focusing on the contradictions of advanced capitalism and the dialectic of enlightenment).” (26). Finally, John Sitton, in his study, Habermas and Contemporary Society, introduces Habermas’s social theory through an analysis of its relationship with Western Marxist social theory. My approach in what follows is probably closest to Sitton’s insofar as I present Habermas’s social theory through an analysis of the way that it follows, and also critically departs from, a particular social-theoretic tradition (although I focus primarily on Max Weber’s theory of societal rationalization instead of Marx’s critical account of the political economy of capitalism). 53 Habermas’s belief that Weber is, if not the most important, then at least an absolutely central figure for social theory is confirmed in passages like this one (which is but one of many): “I feel that Max Weber’s question regarding the paradoxes of rationalization is still the best key to a philosophically and scientifically informed diagnosis of our time.” (A Berline Republic, 60-61). This passage, and the several others like it which can be found throughout Habermas’s corpus, makes it clear that Habermas does indeed see his own project in social theory as a critical response to Weber’s social theory. 78 Habermas’s thinking about the general normative standards which legal systems must meet if they hope to retain legitimacy in the eyes of the members of the public (2.4 and 2.5). Having gotten this far, I will then be in a position to present Habermas’s argument that constitutional democratic legal systems with strong judicial review, like the U.S. legal system, are not necessarily normatively undesirable (I provide a sketch of Habermas’s argument in 2.6, and a much more extensive reconstructive analysis of it in chapter 3). I will finish the chapter with a review of two interesting criticisms of Habermas’s general social theory which have been made, respectively, by Richard Rorty and Amy Allen (2.7). I do this to give some sense of the critical response which Habermas’s general social theoretic project has generated and to put us in a position to consider the modifications to his defense of strong judicial review which Habermas might be forced to make if certain elements of his social theory (those which Rorty and Allen subject to critical attention) prove to be untenable. 2.1 Introduction to Habermas’s Social-Theoretic Project, Description of His Motivations and Meta-Theoretical Commitments In this section I present the reader with an impressionistic description of Habermas’s social theory (2.1.1), describe Habermas’s stated motivations for developing his theory (2.1.2), provide some examples of the uses to which Habermas has put his theory in recent years (2.1.3), and comment on the scope of Habermas’s project (2.1.4). 2.1.1 Habermas’s Basic Project As I have just said, Habermas’s basic project is to develop a theory of modern society54 by critically working through (i.e. reconstructing, critically analyzing, and revising) Max 54 The use of the phrase “modern society” requires some comment. What does it mean for Habermas to develop a theory of specifically modern society? Why not simply a theory of society? What is the force of ‘modern’ here? The short answer to these questions is that Habermas, following Marx, Weber, and Durkheim, takes it as a point of departure that contemporary societies, in Habermas’s language “modern societies”, are quite different from earlier 79 Weber’s “problematic of societal rationalization”55 and the Western Marxist56 response to it (represented primarily, for Habermas, by Lukács, Adorno, and Horkheimer57) [Theory of forms of society, in Habermas’s language “mythic societies” or “pre-modern societies”. One key difference is that, in mythic societies, people generally made sense of experience in a radically different way than they do in modern societies. To use Habermasian language, the interpretations of members of mythic societies are “undifferentiated”. They do not distinguish (or at least do not distinguish as sharply as members of modern societies do) between objective, intersubjective, and subjective elements of experience. A consequence of this is that the way that social action is organized in mythic societies is quite different from the way that it is organized in modern societies. Thus, a theory of modern society has to do with the way that social action is organized when individuals can be expected to differentiate between objective, intersubjective, and subjective elements of experience. It seeks to determine, among other things, what the consequences of this new way of interpreting experience have been for the organization of social action. 55 The phrase “problematic of societal rationalization” is Habermas’s shorthand for Weber’s analysis of the origins and consequences of the process of macro-social change which led to the shift from the mythic to the modern form of society. “Societal rationalization” is the term that Habermas most often uses to refer to this process. Thus, we can say that Habermas is interested in explaining the forces which led to societal rationalization and the consequences which this process of societal transformation has had for the organization of social action in modern societies. 56 ‘Western Marxism’ refers to a strand of Marxist social theory which is characterized by its divergence from what is sometimes called “orthodox” or “Soviet” Marxism (the latter being associated with Karl Kautsky, Georgi Plekhanov, Vladimir Lenin, Rosa Luxemburg, and Leon Trotsky, among others). Whereas orthodox Marxism focused on “…the economic laws of motion of capitalism as a mode of production, analysis of the political machinery of the bourgeois state”, and “strategy of the class struggle necessary to overthrow it”, Western Marxism “came to concentrate overwhelmingly on study of superstructures” (Anderson, 44-45, 75). In general, the Western Marxists (including Lukács, Gramsci, Marcuse, Adorno and Horkheimer, Benjamin, Althusser, and Sartre) can be understood as attempting to explain the historical failure of the proletariat to develop a revolutionary class consciousness by analyzing the form of experience and the knowledge-generating practices characteristic of capitalist societies. In developing their analyses, they relied on several non-Marxist theorists, most importantly Hegel, Freud, and Weber (Anderson, 58). Their attempts to synthesize the insights of these theorists with Marx’s critical account of capitalism produced several extremely rich analyses of the form of experience, knowledge, and reason under capitalism. The most important of these, for Habermas, are Adorno and Horkheimer’s Dialectic of Enlightenment and Lukács’ History and Class Consciousness. For historical accounts of Western Marxism, see: Considerations on Western Marxism, Perry Anderson; Dialectic of Defeat: Contours of Western Marxism, Russell Jacoby; The Spell of Capital: Reification and Spectacle; Samir Gandesha, Johan F. Hartle (especially Gandesha and Hartle’s introductory essay: Reification and Spectacle: The Timeliness of Western Marxism). 57 Very briefly, in The Protestant Ethic and the Spirit of Capitalism, Weber developed an account of social development which he intended as a competitor to Marx’s historical materialism. Whereas Marx appeared to claim, (e.g. in the preface to the Contribution to the Critique of Political Economy) that (1) large-scale social change could be expected to occur when the development of the forces of production began to be “fettered” by the relations of production characteristic of capitalism, and (2) that the nature of the change provoked by this conflict could be known in advance to be liberatory (because capitalism could be expected, through certain of its internal dynamics, to reduce the vast majority of members of society to the status of property-less workers and to produce widespread class consciousness on the part of those workers, such that the proletariat would inevitably seize the moment represented by the conflict between relations and forces of production to inaugurate a society in which class distinctions were gradually abolished, and along with these economic exploitation), Weber held that theories of social change must involve an interrogation of the prevailing form of experience, beliefs, and “rationality” in the society under consideration. He therefore offered a very different account of the development of capitalism, and of the prospects for social change in a capitalist society, than the economic determinist account he associated (in my view wrongly) with Marx. In short, Weber tried to develop a theory of social development which gave the social superstructure its due in explaining social change. Though Lukács and Adorno and Horkheimer recognized that Marx’s actual account of social change was much more nuanced than the economic determinist account that Weber attributed to him, they found Weber’s work to be extremely useful as a starting point for conceptualizing the form of experience and 80 Communicative Action, volume I, 7]. This project has at least three, interrelated, parts. First, it involves attempting to explain the origins of the process of societal rationalization and the reasons for its world-historical significance (theory of macro-social development). Second, it involves developing an account of the impact that the process of societal rationalization has had on the way in which social action (i.e. interactions between members of society) is organized in modern societies (theory of social action). Third, it involves developing a theoretical framework which can be used to ground diagnostic investigations58 of rationalized societies such that the “contrary tendencies of development” which are at work in them can be made evident and subjected to critical analysis (Religion and Rationality: Essays on God, Reason, and Modernity, 87). In Habermas’s own, more succinct, formulation, his project involves critically working through Weber’s account of societal rationalization in order to develop a systematically unified theory of the “genesis, constitution, and ambivalent development of modernity” (i.e. modern societies) [Religion and Rationality: Essays on God, Reason, and Modernity, 82]. 2.1.2 Habermas’s Motivations rationality of “modern” societies. As I have already indicated, this topic became pressing for the Western Marxists when historical events contradicted the optimistic account of social development associated (at the time) with Marxism. They turned to Weber’s analysis of the form of rationality characteristic of modern societies in order to develop an understanding of the reasons why the social revolution predicted by Marx failed to materialize. The results were Lukács’s theory of reification (laid out in his History and Class Consciousness) and Adorno and Horkheimer’s pessimistic critique of instrumental rationality (developed in the Dialectic of Enlightenment). On the relationship between Marx and Weber see the introduction to Norbert Wiley’s anthology, The Marx-Weber Debate and Understanding Classical Sociology: Marx, Weber, Durkheim by Hughes, Martin, and Sharrock (chapters 1-3). On Weber’s limited appreciation for the actual complexity of Marx’s theory of social development see Anthony Giddens’ Marx, Weber, and the Development of Capitalism (but see also G.A. Cohen’s defense of the economic- deterministic account which Weber attributes to Marx in his Karl Marx’s Theory of History, A Defense). For an analysis of the relationship between Weber and Adorno and Horkheimer, see the introduction to Deborah Cook’s Adorno, Habermas, and the Search for a Rational Society. For an analysis of the way that Lukács made use of Weber’s account of societal rationalization in the development of his theory of reification, see Zoltan Tarr’s A Note on Weber and Lukács, and Michael Löwy’s Anticapitalist Readings of Weber’s Protestant Ethic: Ernst Bloch, Walter Benjamin, György Lukács, Erich Fromm. 58 I take ‘diagnostic investigation’ from Gordon Finlayson’s Habermas: A Very Short Introduction. The term refers to Habermas’s attempt to develop an explanation of the various social pathologies which plague modern society. These include the loss of meaning, anomie, and alienation (Finlayson, 62; see also, Habermas, A Reply, 225-226). 81 Habermas’s primary motivation for developing his social theory is political59. Indeed, he frequently describes himself as attempting to continue the Marxist tradition that seeks to investigate and support the “potential for reason encapsulated in the very forms of social reproduction [of modern societies]” (A Reply to My Critics, 221)60. Although Habermas accepts 59 By this I do not mean to imply that Habermas develops his social theory in the service of some particular ideological project (e.g. the struggle for political power undertaken by the members of the Green Party). He does not see it as the role of the social theorist or philosopher to determine how particular political questions ought to be resolved (Moral Consciousness and Communicative Action, 211; Habermas and Marxism, 25). Instead, what I mean by saying that Habermas has a political motivation is that Habermas’s ultimate reason for developing his social theory is to contribute to the ongoing effort to reform society such that it becomes more humane, more just. He seeks to do this by developing a theory which can help reveal the causes of various social pathologies which both undermine the democratic process and, quite simply, contribute to the existence of pain, confusion, and suffering for members of rationalized societies (Moral Consciousness and Communicative Action, 211). My understanding of Habermas’s basic, political, motivation to develop a social theory is confirmed by Habermas himself. Consider, for instance, a recent essay, Public Space and Political Public Sphere, in which Habermas reflects on his early political experiences and identifies the political motivations which both initially led him to engage in philosophy and social theory and continue to motivate him to refine his theory. Habermas writes, “… it was the caesura of 1945 that first led to the eye-opening experience for my generation without which I would hardly have ended up in philosophy and social theory. Overnight, as it were, the society in which we had led what had seemed to be a halfway normal everyday life and the regime governing it were exposed as pathological and criminal. Through this experience, the confrontation with the legacy of the Nazi past became a fundamental theme of my adult political life. My interest in political progress, spurred by this concern with the past, became focused on conditions of life that escape the false alternative between Gemeinschaft and Gesellschaft, “community” and “society.” What I have in mind are, as Brecht puts it, “friendly” forms of social interaction that neither surrender the gains in differentiation of modern societies nor deny the dependence of upright individuals on one another – and their reciprocal reliance upon one another.” (Between Naturalism and Religion, 17-18; emphasis mine). Also see Jean-Marc Durand Gasselein’s The Work of Jürgen Habermas – Roots, Trunk, and Branches in the essay collection Philosophical Introductions: Five Approaches to Communicative Reason (especially section I.A). 60 Whether or not Habermas should actually be understood as a Marxist is a matter of some dispute. Resolving this question depends upon determining what it means to be a Marxist. As the passage reproduced below suggests, Habermas sees himself as following Marx insofar as he is motivated by (what he takes to be) Marx’s theoretical intention – to develop a theory of modern societies which does not neglect the destructive underside of the modernization process of which capitalism is a central part. However, as Julius Sensat Jr. points out in the introduction to his early analysis of Habermas’s relationship to Marxism, Habermas has, since Legitimation Crisis at the latest, consistently claimed that Marx’s political-economic analysis must be updated to take account of the ways in which capitalism has changed since the publication of the first volume of Capital (Sensat, 12). In A Berlin Republic, Habermas writes: “… the theoretical foundations of Marx’s critique of capitalism have been superseded. But an impartial analysis of the simultaneously liberating and uprooting, productive and destructive effects of our economic organization on the life-world is more essential today than ever before.” (A Berlin Republic, 87; also see Communication and the Evolution of Society, 95-96 & Habermas: Autonomy and Solidarity, 64-65). Julius Sensat, Agnes Heller, Tony Flood, and Harry F. Dahms all have written analyses of Habermas’s relationship with the Marxist tradition which suggest that Habermas should indeed be understood as a Marxist (though one who claims that (1) Marx’s theory of social development, historical materialism, must be reformulated and (2) that contemporary capitalism has been altered in important ways by state intervention such that Marx’s 82 that modern societies are very far from being worthy of being called rational or humane61, he nevertheless believes that they harbor the potential to develop in accord with these ideals. Habermas wants to contribute to the realization of this possibility and understands his theory as providing an overview of the structure of modern societies which might prove helpful to those who share his political orientation. In his own words, he wants to contribute to the “conquest of unhappiness and misery” (Habermas: Autonomy and Solidarity, 53). And he seeks to do so by developing a social theory which can illuminate the “structurally anchored developmental trends that run in opposite directions [in modern societies]” in order to “help [us] … become aware of possibilities for practical intervention.” (A Reply, 261). 2.1.3 Examples of Habermas’s Use of his Social Theory Habermas has repeatedly attempted to use his social theory to identify threats to the maintenance of constitutional democracies and to ground proposals for political action that might contribute to the preservation of constitutional-democratic institutions and to the (re)generation of the motivations necessary for widespread participation (on the part of members of the public) in democratic processes to take place. He is preoccupied with constitutional democracy because critique of political economy must be updated if it is to apply to the contemporary situation). Joseph Heath and John Sitton, on the other hand, deny that Habermas ought to be considered a Marxist. Heath believes that Habermas has given up too many of the core traditional Marxist beliefs to be considered as such. Sitton charges that Habermas’s social theory becomes ideological insofar as it presents a vision of social reality on which participation in the public sphere can tame the capitalist economic system without making it clear that the capitalist economic system is so entrenched (and powerful) in contemporary societies that such participation is functionally impossible without social revolution. See Jurgen Habermas’s Critique of Marxism, Tony Flood; Habermas and Marxism, Agnes Heller; Habermas and Analytical Marxism, Joseph Heath; Habermas and Contemporary Society, John Sitton; Theory in Weberian Marxism: Patterns of Critical Social Theory in Lukács and Habermas, Harry F. Dahms; Habermas and Marxism: An Appraisal, Julius Sensat. 61 Indeed, although Habermas is sometimes charged with not paying enough attention to the violence, exploitation, and poverty which are undeniable in contemporary societies, he repeatedly refers to these things. See, for instance, Europe: The Faltering Project, where Habermas refers to the undeniable scandal of poverty and inequality in developed societies (105). See also Habermas’s recent essay collection, The Lure of Technocracy, where Habermas refers to the injustice characteristic of contemporary forms of economic burden-sharing as one that “cries out to heaven” (70-71). 83 he sees it as a “necessary condition” for the realization of an “emancipated form of life” (Between Facts and Norms, xli). Thus, although the way that I have framed his project might make it sound conservative, Habermas actually believes that constitutional democracies, because they enable long-term political dialogue between members of society and include institutions which can be expected to give legal effect to social consensuses painstakingly built through this dialogical process, enable (or at least can be understood as representing a necessary condition for enabling) a process of ongoing social reform (perhaps even of quite a radical sort) to take place. Habermas’s attempt to use his theory to support constitutional democracy should not, then, be thought of as a politically conservative project62. Indeed, Habermas describes himself as standing in opposition to all forms of authoritarianism and in support, instead, of “radical democracy” (A Berlin Republic, 74-75). Thus, it is clear that, instead of seeing Habermas as supporting political conservatism, his project is actually an attempt to secure the conditions necessary for a reasoned form of social change (which does not necessarily equate to an extremely gradual or minimal form of change) to take place over time63. 62 For competing views see Scheuerman’s Between Radicalism and Resignation: Democratic Theory in Habermas’s Between Facts and Norms and Bohman’s Complexity, Pluralism, and the Constitutional State Faktizität und Geltung. 63 One example of the way that constitutional democracies function which, along with others, leads Habermas to his belief that they should be seen not as fundamentally conservative but instead as reform-oriented is the way that they treat dissidents. In general, those who object to legitimately passed laws are not punished in constitutional democratic societies. Instead, these societies extend extremely broad rights to participate in protest actions and to engage in critical public speech which shield dissident activity. Habermas sees in rights like these protections which enable non-coercive communication about the laws which ought to govern social life to continue even after contrary laws have been passed. Again, this feature of constitutional democracy suggests that it is fundamentally not conservative. For, instead of forcing rigid compliance with traditional norms or legitimately passed laws, constitutional democratic societies preserve space for dissent and criticism such that public opinion can be swayed in the future and effect a change in the laws. Constitutional democracy, then, should be understood as a reform- oriented project. Despite Habermas’s repeated insistence on this element of constitutional democracy, some critics of his project have made the claim that Habermas fetishizes consensus and casts continuous disagreement in a negative light. For a recent example of this type of criticism, see Romand Coles’ Communicative Action and Dialogical Ethics: Habermas and Foucault. There Coles makes the argument that, while Habermas’s account of lifeworld rationality, which he uses as the basis for both moral theory and the theory of political legitimation, does indeed lead to the fetishization of consensus, Foucault’s alternative account of discourse does not and should therefore be 84 Examples of Habermas’s use of his theory to contribute to this project can easily be found throughout all of his published work – from The Structural Transformation of the Public Sphere (in which Habermas investigates the forces which led to the breakdown of the bourgeois political public sphere and the subsequent breakdown of the “subjective capacity for rational criticism of public authority” [The Structural Transformation of the Public Sphere, 172)]), to Legitimation Crisis (in which Habermas attempts to identify the “stress limits of advanced capitalism” and argues that the “cultural contradictions” produced by the system might provide opportunities for social movements that seek to bring about a democratic transformation of society [Legitimation Crisis, 143; The Lure of Technocracy, 85]), to several recent essay collections, for instance The Postnational Constellation, Europe: The Faltering Project, The Divided West, and The Lure of Technocracy (in which Habermas identifies out-of-control economic globalization as the main contemporary challenge to constitutional democracy and argues that increased international cooperation is the only way to confront it because globalization effectively neutralizes the capacities for self-regulation of the individual nation- state. Habermas takes this project to be an urgent one because the situation produced by unregulated economic globalization threatens to produce a “loss of solidarity” that could “destroy liberal political culture” and “end up eroding the legitimation of democratic procedures and institutions” in the minds of members of the public [The Postnational Constellation, 50-51].). 2.1.4 The Scope of Habermas’s Social Theory One way in which Habermas classifies social theories is through generalizing about their content (i.e. the type of social phenomena with which they are concerned). On the one hand, there are social theories which attempt to “conceive society as a whole” (Theory of preferred to Habermas’s. A similar critique is made by Robert W.T. Martin. See his Between Consensus and Conflict: Habermas, Post-Modern Agonism and the Early American Public Sphere. 85 Communicative Action, vol. I, 3). On the other, there are social theories which focus primarily on explaining the way in which some particular social subsystem64 organizes social action. Whereas the former sort of social theory attempts to explain how the main principles of social organization operating in society (Habermas identifies “money, administrative power, and solidarity” as “the three major forces of macrosocial integration” [Between Facts and Norms, 150]) both produce regular patterns of social action and drive social development (and possibly 64 Habermas takes it as a point of departure that modern societies are functionally differentiated (Postmetaphysical Thinking, 193). This means that they have been restructured in a particular way. Whereas traditional societies organized social interactions through a set of norms that were anchored in religious worldviews (themselves largely immune to critique), the organization of social action in modern societies is governed by multiple, and sometimes conflicting, “principles”. Social theorists sometimes describe these different principles as functioning to organize social action in discrete domains, commonly referred to as “social sub-systems”. For instance, a social theorist might define the economic sub-system as a social sphere or domain in which the principle of strategic rationality works to organize social action. That would be to say that, in the economic sphere, individual subjects (generally) determine which actions they will take on the basis of self-interested calculations about which means will be most effective for the achievement of personal ends under the constraints of their particular choice-environment (constituted by the legally promulgated “rules of the game”, the laws governing economic transactions, the ownership of property, and so forth). The economic sub-system would thereby organize social action (i.e. interactions between members of society) by licensing self-interested calculation on the part of individuals and simultaneously enforcing (through the legal system) particular sets of incentives and disincentives to which individuals would have to react in order to realize their preferred ends. If this is true, we can say, for short, that the economic sub-system organizes social action according to the principle of strategic rationality. Habermas identifies “markets” (i.e. the economic system) and “administrations” (i.e. the system of state administration) as the two main social sub-systems which work, alongside the “lifeworld” (in which he believes engagement in communication oriented to mutual understanding plays this organizing role), to coordinate social action in modern societies. Thus, he writes: “There is also another way of meeting a need for understanding which goes beyond the available possibilities of reaching consensus; this need in fact disappears entirely as soon as socially- integrated domains of action are switched over to system-integration. That is precisely what happened to many areas of life in the wake of capitalist modernization. Money and power – more concretely, markets and administrations – take over the integrative functions which were formerly fulfilled by consensual values and norms, or even by processes of reaching understanding.” (Habermas: Autonomy and Solidarity, 175). Habermas’s conceptualization of society as functionally differentiated in this way has led to some critical notice from theorists who are generally friendly to his overall project. Hugh Baxter, for instance, claims that Habermas’s description of social systems as “norm-free” leads him to misconstrue the way that these systems actually work to organize social action. After all, it is not as though workers in a firm (to continue with an example from the economic sub-system) are not allowed to communicate in order to solve the problems which come up in the course of the working-day. Habermas recognizes this point, but maintains that, when social systems work to organize social action, communication and norm- consciousness only operate in a restricted way. Lifeworld norms are always subject to suspension when action is being organized by these systems. See Baxter’s System and Lifeworld in Habermas’s Theory of Communicative Action and Habermas’s Theory of Communicative Action, Volume II, p. 460). I will provide a more rigorous definition of social systems and “lifeworld”, and some further discussion of this topic, below. 86 also social breakdown), the latter sort focuses on how individual social subsystems organize social interactions within their own particular boundaries. We can call these two types of social theory (1) general social theory and (2) particular social theory. Habermas opts to develop a general social theory. Therefore, we can describe him as being theoretically ambitious, because he attempts to provide us with something quite complicated – an understanding of the structure of the whole of society – as opposed to explaining something limited – an understanding of the way in which a particular social subsystem organizes social action within its own sphere of influence. Habermas’s decision to try to develop a general social theory can be explained by recalling the political end for the sake of which he develops his social theory in the first place. Given that Habermas’s basic intention is to contribute to the project of bringing about a humane and rational society, and that he seeks to contribute to this end by providing us with a theoretical framework that can be used to identify threats to, and opportunities for solidifying and expanding, constitutional democratic institutions and the motivations necessary to participate in democratic processes, Habermas must develop a general social theory because only this sort of theory puts us in a position, through the account it offers of the relationships between the different principles of social organization which are operative in society at a given time, to understand the developmental tendencies at work in modern societies (including the various ways that these different organizing principles might interact with one another and the consequences that their interaction might have for the organization of social action). But knowledge of these developmental tendencies is just what we must possess if we want to grasp the long-term threats to, or opportunities for further solidifying, constitutional democratic institutions. Indeed, from the limited perspective of particular social theory, it is difficult to see 87 how questions relating to the developmental tendencies of modern society could even be posed. This is because particular social theories, by definition, do not investigate the way in which the social subsystems which they seek to explain might work to influence the developmental path for society as a whole. Thus, Habermas describes what I am calling “particular social theories” as theories which “remain in mid-air, without telling us very much” unless they are integrated by a general social theory that explains the relationships between the social subsystems which they take as their respective subjects65 (Habermas: Autonomy and Solidarity, 114-115). 2.2 Habermas’s Engagement with Weber Having characterized the motivations behind, and some of the basic commitments of, Habermas’s social theory, I turn now to Habermas’s engagement with Max Weber. I first explain why Habermas chooses to use Weber’s social theory as a starting point for the development of his own account (2.2.1). I then explain how Habermas interprets Weber’s account of the development of modern societies (i.e. Weber’s account of macro-social change) [2.2.2] and how Habermas interprets Weber’s account of the organization of social action in modern societies (theory of social action) [2.2.3]. I then briefly summarize the “diagnosis of the times” which 65 In his article, System and Lifeworld in Habermas’s Theory of Communicative Action, Hugh Baxter puts this point in the following way: “In order to grasp the structure and processes of functionally differentiated systems of action – whether at the level of “concrete organizations” (such as business firms), sub-systems of a society, or even societies at large – analysis must push beyond the system in question, beyond its internal processes of decision and execution, to an account of the contingency of these processes upon relations of interchange between the system and its relevant environments. This is the distinctive claim of all varieties of systems theory: in addition to an understanding of internal processes of a system, social theory must grasp the external processes of interchange between the organization or system and its environments.” (65-66). What Baxter means by this is that particular social theories can only be of limited use in developing an account of social development and charting an (admittedly always speculative) course of future social development. Again, this is because the theorist who contents him/herself with developing a particular social theory is not in a position to ask the larger question – how might the different social sub-systems which work to organize social action at a given time in society interact with one another and what consequences might this have for the society in question? The particular social theorist is not in a position to answer this question precisely because he/she only possesses a theory of some particular social sub-system, and so cannot consider how other social systems may interact with that system and what the consequences of this interaction might be for the way in which social action is organized. 88 Weber drew from his theory and how Weber’s analysis was taken up by Adorno and Horkheimer (diagnosis of modernity) [2.2.4]. Having reached this point, I am then in a position to explain how Habermas criticizes Weber’s account (2.2.5). As I have already indicated, this detour into Habermas’s engagement with Weber is meant to help us to contextualize Habermas’s own social theory. That is to say, it puts us in a position to understand the basic questions which Habermas means to address through his social theory. I provide an extensive summary of the way that Habermas answers these questions (which he, in many respects, takes over directly from Weber) in section 2.3. Understanding the intellectual context of Habermas’s account will ultimately enable us to better understand the reasons why he provides the sort of defense of strong judicial review which he does, and the theoretical constraints by which his defense is bound. 2.2.1 Habermas’s Choice of Weber as a Starting Point As I have just said, Habermas’s strategy in developing his social theory is to critique and build upon Weber’s account. There are at least three reasons why. First, Weber’s account represents an investigation of the main phenomena with which Habermas is concerned – the developmental tendencies of, and organization of social action in, modern societies. Second, Weber’s account was a major inspiration for several influential strands of social theory (most notably the critical account produced by Adorno and Horkheimer) which are pessimistic about the emancipatory prospects of modern societies66. Because Habermas seeks to argue against this position, he seeks to demonstrate Weber’s shortcomings and to thereby undercut his pessimistic competitors. Third, Habermas takes Weber’s reflections on the complex way in which social action is organized in modern societies to be methodologically important insofar as they show 66 For a succinct analysis of the way that Adorno and Horkheimer reacted to, and extended, Weber’s account of social rationalization, see Richard Ned Lebow’s Weber’s Tragic Legacy (45-49). I also provide an impressionistic depiction of this relationship below (in 2.2.4). 89 that social theorists working toward a theory of the organization of social action in modern societies must deal with the problem of finding a way to simultaneously explain social action from both the participant perspective and the observer perspective67. Since the first two reasons are relatively straightforward, I will only consider the third in detail. I turn to this now. Just as Habermas drew a broad distinction between the general and the particular in his discussion of social-theoretic content (see section 2.1.4), Habermas again draws a broad distinction between different types of social theory in his discussion of social-theoretic methodologies. He locates these on a spectrum that ranges between subjectivism and objectivism68 (On the Pragmatics of Social Interactions, 10). At the subjectivist end of the spectrum are social theories that take the normative judgments made by individual social subjects to be a determining factor in the organization of social action. In other words, theorists who adopt subjectivistic methodologies produce social theories which take as a point of departure that members of society are not indifferent about the question of how their social interactions should be organized. Instead, subjectivists take individual subjects to regulate their social interactions in accordance with basic norms. The application of these norms determines the “socially binding definition of the situation[s]” that the subjects encounter and determines how they will attempt to regulate their interactions with one another (On the Logic of the Social Sciences, 53-55). Thus, the attempt to understand social action, on the subjectivistic account, requires that social theorists come to adopt the participant 67 Though I will explain why Habermas finds this element of Weber’s social theory attractive in detail shortly, for now we can say that Habermas believes that Weber is right about this because, as A. Anthony Smith puts it, he both accepts the Marxist point of departure that economic relations of production exercise a profound influence on the forms which social interaction takes and equally well accepts that the “structure of moral-practical consciousness” plays an important role in determining how social interactions are organized (Two Theories of Historical Materialism: G.A. Cohen and Jurgen Habermas, 1). 68 In proceeding this way, Habermas is adopting meta-theoretical concepts that have been widely used in social theory. See Morrow’s Critical Theory and Methodology, chapters 1-2, for an account of some of the basic issues in social scientific meta-theory and a discussion of the origins of these terms. 90 perspective, “the perspective of the acting subject himself” (On the Logic of the Social Sciences, 53-55). This allows the theorist to understand the way that the agents who participated in some social interaction understood the interaction. On the basis of that understanding, the theorist can come to understand why the relevant social agents acted as they did. Adopting this participant perspective means that the social theorist develops an understanding of the “rationality” which individual members of a society characteristically use to interpret and respond to the normative dimensions of the social situations that they encounter. A theory of rationality, in this sense, is a theory of the practices through which experience is interpreted, knowledge is developed, and actions are generated in a given society. In Habermas’s language, it is a theory of the way in which the resources of “the lifeworld” are continuously used, modified, and reproduced by social subjects who must come to agreement, and cooperate, with one another, at a given time and place in history. On the other hand, at the objectivistic end of the spectrum, we find social theories that tend to de-emphasize the importance of developing an understanding of the normative judgments that social subjects make in order to explain the organization of social interactions69. In Habermas’s words, objectivistic social theory “… conceives the life process of society not 69 As a matter of historical fact, social theorists who adopt objectivistic methodologies have tended to deny that their subjectivistic competitors are really “doing science”. The idea here seems to be that the subjectivists’ preoccupation with interpretation renders their accounts of social action hopelessly imprecise. An example of this hostility, which employs a variation of this critique, is to be found in Paul Diesing’s Objectivism vs. Subjectivism in the Social Sciences. There Diesing argues that subjectivistic accounts of social reality are either otiose or reducible to more desirable objectivistic accounts. A more recent example can be found in Austin Harrington’s Some Problems with Gadamer’s and Habermas’s Dialogical Model of Social Understanding. William Rehg also makes the same point that I am making in his introduction to Habermas’s Between Facts and Norms. He sees contemporary systems theory, in the tradition of Talcott Parsons and (especially) Niklas Luhmann, as rejecting subjective interpretation in favor of “rigorous restriction to the observer perspective” (Between Facts and Norms, xxi). I would contend that neither Diesing nor Harrington (nor contemporary systems theorists) provide compelling arguments against the idea that subjective interpretation is crucial in coming to understand how members of the lifeworld understand themselves and the norms which govern their interactions with one another. Though it would be interesting to consider whether or not this debate could be resolved, I do not have the space here to do more than register that it is ongoing. 91 internally as a process of construction, that is, of the production of meaningful structures, but externally as a natural process that, like other processes, can be observed in its empirical regularities and explained by means of nomological hypotheses” (On the Pragmatics of Social Interactions, 10). This is to say that objectivistic theorists (more or less) dispense with an interpretation of subjects’ normative perspectives and explain social action, instead, as the product of intelligent, calculative, adaptations made by individual subjects who are reacting to stimuli (on behaviorist accounts) or to the environments constituted by social sub-systems (on systems-theoretic accounts) in the pursuit of basic ends. An understanding of these basic ends, coupled with an understanding of the possibilities for action that a system/environment enforces, allows objectivistic social theorists to generate predictions about behavior patterns that can be expected to occur over the long term. These predictions can be generated without having to investigate the normative perspective of social subjects. Thus, objectivistic social theorists tend to play down, or even reject outright, subjectivists’ claims that social theory must be based upon a theory of rationality (as defined above). Now, as Habermas sees, it is clear that whether a social theorist opts for a subjectivistic or an objectivistic methodology is dependent upon the way in which the theorist imagines social action to be organized70. If social action is taken to be primarily coordinated through norm consciousness (and, when it is unclear what norms ought to guide action, processes of communication directed at determining the characteristics that a particular situation has and the norms which ought to guide behavior in such a situation), then a subjectivistic methodology will be appropriate. If, on the other hand, social action is taken to be primarily governed by the 70 Morrow describes this in terms of the basic ontology, the basic “conception of the nature of social reality” which a theorist is working with (Critical Theory and Methodology, 54). In short, how we imagine that social action is organized will ultimately determine which meta-theoretical orientation we adopt. 92 development, on the part of individual subjects, of instrumentally rational action plans directed at the achievement of personal ends, then an objectivistic methodology will be (more or less) appropriate. Weber’s great merit, for Habermas, is that he recognizes that, when we are examining modern societies, accounts which are primarily subjectivistic or primarily objectivistic are one- sided (for reasons I will make plain presently). This means that any account of social action in modern societies will have to integrate subjectivistic and objectivistic methodologies (i.e. it will have to (1) explain social action, in some instances, by relying on a theory of rationality, and, in other instances, by relying on a theory of instrumental calculation and an account of the constraints and possibilities presented to actors by the choice-environments which they encounter and (2) determine when it is appropriate to adopt a subjectivistic and when an objectivistic methodology). Habermas is in full agreement with Weber on this point for reasons which I will now make plain. For Habermas (and Weber), the problem with primarily subjectivistic accounts is that they do not pay sufficient attention to the fact that modern societies are, as Karl Marx and Adam Smith made clear through their analyses of the capitalist economic system, functionally differentiated (Theory of Communicative Action, vol. I, 158)71. In Habermas’s own words: “functionally specialized action systems” have, in modern societies, “become independent vis-à- vis socially integrated spheres of action, that is, spheres integrated through values, norms, and 71 Habermas takes this point to be more than an empirical reality. He goes beyond this by saying that contemporary societies could not, practically speaking, do without social sub-systems. That is, Habermas does not believe that societies which attempted to organize social action through communication alone, dispensing with social sub- systems, could endure over time. In his own words, “Survival imperatives require a functional integration of the lifeworld, which reaches right through the symbolic structures of the lifeworld and therefore cannot be grasped without further ado from the perspective of participants. Rather, they require a counterintuitive analysis from the standpoint of an observer who objectivates the lifeworld.” (Theory of Communicative Action, volume II, 232; emphasis mine) 93 mutual understanding” (Between Facts and Norms, 354). That is to say that social sub-systems (e.g. the economic system and the modern state) at least sometimes take the lead in organizing social action in modern societies. But when they function to coordinate social action, the normative commitments of social actors become secondary from the perspective of organizing social action. Instead, to use Habermas’s terminology, “media of money and power” force individuals to adopt a “strategic stance” in their interactions with one another (A Reply, 254)72. This is not to say that, when systems take the lead in organizing social action, individual subjects completely forego their normative commitments. It is, instead, to say that, when this happens, individuals are put under significant pressure to forego acting in accordance with their normative commitments when doing so would interfere with the imperatives issued by those who occupy a position of authority in the system (whether this be an employer in the economic sphere, or an officer of the law in the legal sphere, or some other official). This is why Habermas has sometimes referred to the capitalist economic system and the state as, in the final analysis, “norm-free social structures” (Theory of Communicative Action, vol. II, 185). 72 Weber speaks, in this context, of the “rational organization of free labour under regular discipline” (The Protestant Ethic and the Spirit of Capitalism, 23; emphasis mine). By invoking a disciplinary mechanism, Weber is pointing out the way in which the capitalist economic system forces actors to engage with one another strategically. When social action is coordinated by capitalism, the choices actors make are tied to certain basic consequences – economic enrichment (e.g. finding a job, getting a raise, turning a profit) or economic punishment (e.g. unemployment, reduction in wages, loss of capital). Because the severity of economic punishment is such that no one (or at least very few people) can afford to incur much of it, when social action is organized by the economic system, actors are forced to decide how to act on the basis of an analysis of the economic consequences that are likely to result from the choices that they make. Thus, normative considerations (i.e. considerations about how actors should interact with one another regardless of self-interest) are largely screened out, or at least become secondary, when capitalism functions to organize social action. Weber expresses this idea succinctly when he says: “The capitalistic economy of the present day is an immense cosmos into which the individual is born, and which presents itself to him, at least as an individual, as an unalterable order of things in which he must live. It forces the individual, in so far as he is involved in the system of market relationships, to conform to capitalistic rules of action. The manufacturer who in the long run acts counter to these norms, will just as inevitably be eliminated from the economic scene as the worker who cannot or will not adapt himself to them will be thrown into the streets without a job.” (The Protestant Ethic and the Spirit of Capitalism, 54-55; emphasis mine). 94 The upshot of this fact about modern societies is that, when social sub-systems take the lead in organizing social action, it does not make sense to adopt a subjectivistic approach and make use of a theory of rationality to explain social action. Instead, the appropriate methodological perspective in this case is objectivistic. Again, this is because, under these conditions, we do not need to analyze the normative commitments of individuals to understand how social action is organized because individuals are (in the final analysis) not being directed by their normative commitments in determining how to act. They are, instead, in a situation in which they face overwhelming pressure to act in accordance with the dictates of their employers or the legal representatives of the state. Norm-consciousness and rationality do not take the lead in organizing social action in these domains, then. Instead, the behavior of individuals is, at bottom, explicable in terms of calculative responses to the incentives and disincentives for obedience to directives which are brought-to-bear by employers and/or representatives of the state. To put it simply, the power of employers and state-representatives to severely punish forces individuals into a strategic mode of interaction. And this means that the appropriate social-theoretic methodology is objectivistic. However, for analogous reasons, Habermas (along with Weber) also recognizes that exclusively objectivistic social theories are also limited. The problem here is that objectivistic social theories fail to see that members of modern societies do in fact organize their interactions with one another, at least some of the time, through norm-consciousness and a form of rationality (defined as knowledge and action generating practices which can produce new norms or situation-definitions in the case of disputes about the appropriate way of understanding or reacting to a situation). 95 Habermas gives multiple arguments that social interactions are in fact organized in this way. One of the most compelling is found in Between Naturalism and Religion. There Habermas argues, following a suggestion by Wilfrid Sellars, that, if things were as strong objectivists claim (i.e. if the organization of social interactions was almost always disconnected from norm- consciousness and knowledge and action generating practices), then it would be mysterious, from a biological-evolutionary perspective, why humans have developed the capacity to engage in the practice of normative and situational analysis and argumentation at all. Habermas states this objection in the form of incredulous questions: “If the process of “giving and asking for reasons” had to be dismissed as an epiphenomenon, there would not be much left of the biological functions of the self-understanding of subjects capable of speech and action. Why do we have to demand justification from each other? What purpose is served by having a whole superstructure of agencies of socialization that drill into children causally superfluous habits of this sort?” (Between Naturalism and Religion, 163-164)73. Having concluded that both subjectivism and objectivism represent one-sided starting points from the perspective of a social theory concerned to explain social action in modern societies, but also having affirmed that each does correctly identify one source of societal integration (i.e. one process which organizes social action in modern societies), Habermas, following Weber, claims that a key task for social theory is to find a way to integrate these two 73 In arguing this way Habermas is trading on the principle that capacities which are “expensive” from an evolutionary perspective, would be unlikely to have developed if they played no role (or a very limited role) in social life. The fact that we can, and frequently do, argue about moral and political questions, then, suggests that individuals must indeed take themselves to be under normative obligations (at least some of the time). This suggests that a subjectivist methodology would be, at least some of the time, appropriate for social theory. And, if this is true, this means, in turn, that social theorists must develop a reconstructive account of the form of rationality which members of the lifeworld (to use Habermas’s terminology) use to resolve disputes which arise about the nature of a shared situation or the normative obligations which obtain in that situation if they hope to understand how social action is organized. 96 social-theoretic paradigms (Habermas: Autonomy and Solidarity, 88). It is for this reason that Habermas takes Weber’s theory of modern society – which should (on Habermas’s account) be seen as a well worked-out and influential, if ultimately unsuccessful (see 2.2.5), attempt to resolve the problem of integrating system and lifeworld perspectives (i.e. objectivistic and subjectivistic theoretical perspectives)74 – to be an indispensable starting point75. By undertaking a critique of Weber’s theory of modern rationality and the “diagnosis of the times” that he bases upon it, Habermas hopes to learn from Weber’s failures and incorporate his insights on the way 74 Habermas uses the polar concepts “lifeworld” and “system” to describe the social spheres in which either subjectivistic or objectivistic methodologies (respectively) would be appropriate. As I have already said, a subjectivistic methodology is appropriate when we are trying to explain social action that is fundamentally governed by norms, norm-consciousness, and by processes of dispute resolution which come into play when disagreement about appropriate norms becomes apparent. Habermas refers to the sphere of social life where social action is organized this way as “the lifeworld”. Conversely, an objectivistic methodology is appropriate when we are trying to explain social action that is ultimately governed by subjects’ intelligent, purposively rational, adaptations to the choice environment which they encounter. As I have already indicated, Habermas refers to the spheres of social life where social action is organized in this way as “social sub-systems”. In his own words: “... I use “system” and “lifeworld” as concepts for social orders that differ in their mechanisms of societal integration, that is, in the intermeshing of interactions. In “socially integrated” spheres of action, this interlinking or sequential ordering is achieved either through the intentions of the agents themselves or through their intuitive background understanding of the lifeworld; in “systemically integrated” spheres of action, order is generated objectively, “over the heads of the participants” as it were, through the functional interlocking and reciprocal stabilization of consequences of action of which the agents need not be aware.” (Justification and Application, 166-167). “Modern societies are integrated not only socially through values, norms, and mutual understanding, but also systemically through markets and the administrative use of power. Money and administrative power are systemic mechanisms of societal integration that do not necessarily coordinate actions via the intentions of participants, but objectively, “behind the backs” of participants. Since Adam Smith, the classic example for this type of regulation is the market’s “invisible hand.” (Between Facts and Norms, 39-40) “In functionally differentiated societies, social relations come about either through “organization,” the “market,” or consensus-formation (i.e. communicative actions, values, and norms). Corresponding types of social interaction assume concrete form in the bureaurcratic state, the capitalist economy, and civil society (as a separate sphere differentiated from both).” (Between Naturalism and Religion, 329-330) 75 Habermas’s appreciation of Weber’s realization that the analysis of modern societies requires thinking through the relationship between system and lifeworld perspectives is widely shared by other prominent social theorists (e.g. Anthony Giddens and David Lockwood). As I have already said several times now, the key idea here is that modern societies are functionally differentiated such that, in some cases, social action is produced through “values/norms”, and, in other cases, it “is primarily shaped in non-normative, utilitarian fashion by the differential control and distribution of resources within and outside the economic sphere.” (Mouzelis, 112). For a brief overview of the importance of the distinction between social and systemic integration in contemporary social theory see Nicos Mouzelis’ Social and System Integration: Lockwood, Habermas, Giddens. & & 97 to successfully conceptualizing the relationship between the subjectivistic and objectivistic paradigms such that he will be in a position to develop a thoroughgoing characterization of the way in which social action is organized in modern societies. Having made clear why Habermas begins his social theory with an analysis of Weber, I will now develop an impressionistic depiction of the way that Habermas reads and responds to the main claims of Weber’s social theory. 2.2.2 Habermas’s Reading of Weber’s Account of the Historical Development of Rationalized Societies On Habermas’s reading of Weber’s social theory, Weber’s account of the birth of modern societies begins with (1) a speculative historical account of the origins, and a theoretical reconstruction of the nature, of “modern structures of consciousness”. Having described these structures, Weber tries to show how the form of rationality (understood in the sense already proposed) which they enable works to set into motion (2) a process of cultural rationalization which (a) continuously revolutionizes the (to use Habermas’s preferred term) “lifeworld” (i.e. the shared store of taken-for-granted “background knowledge”, the set of shared knowledge- generating practices, basic beliefs and action-orientations, which members of a society always have at their disposal and depend upon in order to coordinate social action [On the Pragmatics of Communication, 209]) and (b) is implicated in beginning the process of “societal rationalization” (by which Weber means to refer to the development of the capitalist economic system and the modern state). (1) On Habermas’s reading, Weber sees the historical transformation of religion from the mythical to the modern form (i.e. the process of “religious rationalization”) as a world-historical process which works to produce “modern structures of consciousness” (Theory of 98 Communicative Action, vol. I, 156). Habermas apparently finds this view credible and tells us that, “Weber’s investigations can be used to substantiate the view that all the paths of religious rationalization branching through civilizations, from the beginnings in myth to the threshold of the modern understanding of the world … point in the same direction, that of a disenchanted understanding of the world, purified of magical ideas.” (Theory of Communicative Action, vol. I, 196). On Habermas’s reading, Weber takes the modern form of experience (i.e. modern structures of consciousness) to represent a departure from the mythical form insofar as it (i) allows sharp distinctions between descriptive, normative, and aesthetic “worlds” to be drawn by individuals [Theory of Communicative Action, vol., I, 186], (ii) works to progressively strip away the prohibition on critical inquiry which had previously functioned to preserve a widespread social consensus about the nature of reality and socially acceptable behavior [Theory of Communicative Action, vol. I, 62, 71], (iii) leads to the repudiation of magical thinking and the conceptualization of experience, instead, in terms of discrete objects which are related to one another in a causal network which is governed by natural laws [Theory of Communicative Action, vol. I, 196], and (iv) enables a particular form of rationality (i.e. modern knowledge and action-generating practices) to develop and become predominant across cultures. For Weber, the form of rationality which gradually emerges from the development of the modern form of consciousness is characterized by a commitment to the inferential principles of formal logic and to the investigative practices of empirical scientific inquiry (i.e. the form of rationality which develops is instrumental rationality). Weber understands the slow but steady transition from the form of knowledge and action generation characteristic of a mythical form of life to the modern, instrumentally-rational, form of knowledge and action generation to produce 99 continuous changes, which he refers to as “rationalization processes” that impact cultural practices and the “personality system” (to use Habermas’s phrase) of modern subjects. (2) (a) For Weber, the cultural rationalization process which is unleashed by the development of modern structures of consciousness and modern rationality is highly disruptive. It is a process of transformation of the lifeworld (i.e. revision of commonly accepted beliefs and forms of action) which is carried forward, throughout generations, by individuals who continuously undermine dominant ideas and practices by subjecting them to rational critique. This process is facilitated by what Habermas calls “cultural systems of action” (e.g. the academic system) which store the critical analyses and innovations of previous generations and transmit them to new generations. This enables a long-term learning process (which revolutionizes dominant cultural practices and revises the store of commonly accepted beliefs in accordance with the principles and practices licensed by modern rationality) to take place. As this process continues, Weber believes that it generates ever-more widespread commitments to the methods, principles, and conclusions associated with modern science, modern morality (i.e. universalistic and principled forms of morality) and modern art76. (b) Weber famously used his theory of cultural rationalization to help to explain the development of the capitalist economic system and the modern state. He described the coming into being of capitalism and the modern state as an instance of “societal rationalization”. The cultural rationalization process which Weber identified as leading to this societal rationalization 76 After these distinct forms of rationality, which Weber refers to as distinct “value spheres”, have been thoroughly developed, however, Weber believes that they can be expected to come into conflict with one another. He expects that this conflict will ultimately lead to the breakdown of modern morality and to the predominance of the modern scientific form of experience and rationality (i.e. to the dominance of a disenchanted, instrumentally rational, form of experience and knowledge-generation). 100 was the development of the “Protestant ethic”. Because this part of Weber’s theory is quite well known, I will limit myself to a brief summary of it. Weber’s overall theory of the process which produced societal rationalization should be read as an attempt to complement Marx’s proto-functionalist analysis of social development (the best known statement of which is given by Marx in the preface to the Contribution to the Critique of Political Economy) with an analysis of the cultural worldviews and practices which actually directed efforts to reform social institutions when the limitations of pre-capitalist relations of production began to be felt (first, for historical reasons, in Western societies) early in the seventeenth-century. Whereas Marx lays down the functional requirement of material reproduction which societies must meet in order to avoid descending into crisis (in short, a society’s relations of production must not fetter the development or use77 of its technological forces of production), Weber describes the cultural background which directed the historical efforts to reform social institutions such that these crises could be avoided. The details of Weber’s account, in brief, are as follows: Weber conceives the process of cultural rationalization (which we have just characterized) to have cleared the way for the development of new religions. Among these were “Calvinism and the Protestant sects”. These religions, in turn, worked to secure commitments on the part of their members to a particular set of “value orientations and behavioral dispositions” (The Protestant Ethic and the Spirit of Capitalism, 40)78. And these, in turn, played a guiding role in the process of social reform which ultimately produced capitalism and the modern state. 77 See G.A. Cohen’s Karl Marx’s Theory of History: A Defense for an analysis of the different types of “fettering” which Marx identifies in the Contribution to the Critique of Political Economy. 78 Habermas summarizes Weber’s account of the peculiar features of Protestantism in the following list: 1. Radical repudiation of magical measures and all sacraments as means in the quest for salvation – the definitive disenchantment of religion; 101 For Weber, the orientations and dispositions which individuals took on through participation in Protestant congregations led to the development of a form of life in which individuals were guided in their decisions about how to interact with one another above all by calculations about how to maximize efficiency and profitability in their “vocations”. The commitment to this form of social action, in turn, had a significant impact on the shape that efforts to bring about social institutional reform ultimately took79. Influential “carrier strata” institutionalized their commitments to “the rational ethics of ascetic Protestantism” by gradually reforming laws and cultural norms in accordance with this ethic (The Protestant Ethic and the Spirit of Capitalism, 27). This process of social reformation, over time, contributed to the development of what Weber called “the most fateful force in our modern life, capitalism” and the modern state (The Protestant Ethic and the Spirit of Capitalism, 17). At the same time, the tremendous functional advantages enjoyed by societies which underwent this societal 2. Relentless isolation of the individual believer in a world where the dangers of creature idolatry threaten, and in the midst of a soteriological community that denies any visible identification of the elect; 3. The idea of a calling or vocation, based to begin with on the teaching of Luther, according to which the believer proves himself to be an obedient instrument of God in the world through the worldly fulfillment of the duties of his vocation; 4. The transformation of the Judaeo-Christian rejection of the world into an innerworldly asceticism of restless labor in one’s calling; outward success does not, it is true, represent the real basis of the individual redemptory fate, but it does represent a basis for knowing it; 5. Finally, the methodical rigor of a principled, self-controlled, autonomous conduct of life, which penetrates every domain of life because it stands under the idea of assuring oneself salvation. (Theory of Communicative Action, volume I, 164-165). As this list of basic features helps to make clear, members of Protestant congregations were induced to adopt a rigorously controlled way of life in order to attempt to demonstrate to themselves (and others) that they are among the elect (chosen by God for eternal salvation). The widespread adoption of a form of life directed toward demonstration of “success in one’s calling” led members of the Protestant congregation to attempt to reform society in such a way that the preconditions for the development of the capitalist economic system were met (though they did not, of course, have this consequence in mind as they undertook these reform steps). 79 This formulation may make it seem as though Weber is opting for Hegelian idealism over Marxist materialism. However, as is made clear in the famous passage comparing world-ideas to “switchmen” determining the tracks down which social evolution runs, Weber believes that efforts to reform society could become causally efficacious only for the reason that Marx suggested – because the existing relations of production were fettering the development and/or use of the forces of production. 102 rationalization process (i.e. the advantages enjoyed by the societies which were early-adopters of capitalism) ensured both the growth and stability of the early-adopter societies and the eventual spread of this form of social-institutional arrangements (capitalism and the contemporary administrative state) such that Weber ultimately concludes that the societal rationalization process he describes is a process “having universal significance and value” (The Protestant Ethic and the Spirit of Capitalism, 13). 2.2.3 Weber’s Account of the Organization of Social Action in Modern Societies As I have already said, Weber understands modern subjects (i.e. moderns) to inhabit a lifeworld which has been thoroughly reshaped by a process of cultural rationalization. Moderns thus can be expected to rely upon the principles and practices which are vindicated in always- ongoing learning processes (themselves made possible by the combination of the development of the modern form of experience and the cultural systems of action described above) when they must organize social action outside of social subsystems. Of course, as we have seen, Weber does not believe that the lifeworld always takes the lead in organizing social action. That is, he does not believe that moderns always determine how to act on the basis of a rational interpretation of the characteristics of their shared situation and a rational determination of which basic norms ought to decide how action should proceed under these conditions. Instead, Weber accepts that, at least in some cases, social action is coordinated by what Habermas calls “norm free social structures” (i.e. social subsystems). We have already given some impression of what this means. Weber’s identification of the dual sources of social organization (lifeworld rationality and system rationality, respectively) presents him with the problem we identified above. He must develop some account of what determines when one source (lifeworld rationality) or the other 103 (social subsystems) takes the lead in coordinating social action. That is, he must develop an integrated account of the dual principles which function to organize social action in modern societies. On Habermas’s reading, Weber attempts to respond to this problem by developing a speculative account, grounded on his theory of modern rationality, about how the learning processes which Weber refers to under the title “cultural rationalization” will ultimately play out. To make a long story very short (and acknowledging that there are multiple plausible ways to read Weber on this topic), because Weber conceptualizes modern rationality as, ultimately, a form of knowledge and action-generation which is characterized above all by formal logic and empirical scientific analysis, he believes that, in the long run, the ability of moderns to ground commitments to basic ethical values will be undermined. The reasons that Weber believes this are familiar from the history of modern philosophy. For, if modern rationality really is as Weber describes it, then, as Hume showed in the Treatise of Human Nature, basic values (and perhaps even commitments to moral universalism), cannot be grounded rationally80. Thus, as the learning processes which are called forth by cultural rationalization become more sophisticated, the basic principles of modern morality will be revealed to be incapable of rational justification. On top of this, the form of experience that Weber thinks is characteristic of modern societies (what we might call the objective form of experience) – in which social phenomena are interpreted as objects which are governed by causal laws – makes it difficult for subjects to understand themselves as autonomous beings worthy of 80 This is ultimately the lesson which Adorno and Horkheimer draw from Weber. They see his reconstruction of modern rationality as making clear that, in the rationalized lifeworld, it is impossible to redeem basic normative claims argumentatively. See Tony Couture’s Habermas, values, and the rational internal structure of communication (section 2) for a brief discussion of this and the reasons that Habermas rejects this conclusion. I will also provide a reconstruction of Habermas’s rejection of this thesis presently. 104 special consideration and moral protection81. For, in this case, they will tend to see themselves as part and parcel with the world of causally determined objects of experience. Thus, Weber concluded, in the long-run moderns will face a crisis of meaning and no longer be able to rationally ground even basic normative claims. On the strength of this analysis, Weber concludes that social action in modern societies will increasingly be organized through instrumentally-rational calculations made by individuals. Because they will not be able to draw upon traditional sources of ethical meaning and will have difficulty grounding basic value-commitments, members of modern societies will, on Weber’s account, come to view even interactions which are not governed by social sub-systems as situations which call for a strategic approach to achieving personal ends. Moderns will tend increasingly to think of actions or principles as the Calvinists tended to (though no longer for the old religious reasons): as being virtuous or good “only in so far… as they are actually useful to the individual” (The Protestant Ethic and the Spirit of Capitalism, 52, 179-180). This suggests that the need for the sort of interpretive, normative, analysis proposed by the subjectivists will gradually diminish. On the basis of these theoretically-informed speculations, Weber implicitly suggests a solution the problem of integrating interpretive (i.e. subjectivistic) and objectifying social- theoretic methods. By proposing a speculative theory of macro-social development on which social action can be expected to become less and less governed by the internally undertaken efforts to rationally determine which moral norms ought to govern social interactions, the 81 This, of course, is one of the main problems which Kant sought to deal with in his critical philosophy. As is well known, Kant’s solution was to make the noumenal freedom of the individual (as well as the existence of God and the possibility of immortality) thinkable (though not demonstrable) through his reconceptualization of experience as the product of the synthetic activity (giving an objective form to raw sensory data) of the mind. See, The Critique of Pure Reason, and The Critique of Practical Reason. 105 problem of determining which social-theoretic method we should rely upon to explain social action is ultimately resolved in favor of the objectivist approach. Again, the image of society which is suggested by this move is one in which social action comes to be organized either through self-interested adaptation to the dictates of impersonal forces (social sub-systems) or by self-interested adaptation, on the part of individuals, to the threats or opportunities posed by other people (when social interactions are organized outside the auspices of social sub-systems). Weber famously presents this image of society in the conclusion to his Protestant Ethic and the Spirit of Capitalism. It is, in Habermas’s terms, Weber’s ultimate “diagnosis of the times”82. 2.2.4 Adorno and Horkheimer’s Use of Weber in the Dialectic of Enlightenment As is well known, Weber’s analysis of modern rationality was a source of inspiration for the pessimistic account of modern society that Adorno and Horkheimer developed in their influential book, The Dialectic of Enlightenment. For Adorno and Horkheimer, the process of 82 Taken piece by piece, Weber’s diagnosis is the following: [1] “Since [Protestant] asceticism undertook to remodel the world and to work out its ideals in the world, material goods have gained an increasing and finally an inexorable power over the lives of men as at no previous period in history.” This is Weber’s appreciation of the functionally differentiated nature of modern societies and his claim that, as a matter of historical fact, the development of Protestantism led to the development of capitalism. When actions are organized by social sub-systems like the capitalist economic system, individuals must relate strategically to one another for the sake of securing their own material needs. [2] “To-day the spirit of religious asceticism – whether finally, who knows? – has escaped from the cage. But victorious capitalism, since it rests on mechanical foundations, needs its support no longer. The rosy blush of its laughing heir, the Enlightenment, seems also to be irretrievably fading, and the idea of duty in one’s calling prowls about in our lives like the ghost of dead religious beliefs. Where the fulfilment of the calling cannot directly be related to the highest spiritual and cultural values, or when, on the other hand, it need not be felt simply as economic compulsion, the individual generally abandons the attempt to justify it at all. This is Weber’s claim that the cultural rationalization process he describes will lead to a situation in which modern subjects will ultimately lose the ability to ground moral commitments at all and become self-interested calculators even in their interactions with one another. They will tend, on this account, to adopt self-interested pursuits, even at the expense of traditional moral commitments, and they will increasingly not even feel the need to provide a justification for this orientation to self-interest. [3] “In the field of its highest development, in the United States, the pursuit of wealth, stripped of its religious and ethical meaning, tends to become associated with purely mundane passions, which often actually give it the character of sport.” (The Protestant Ethic and the Spirit of Capitalism, 182). 106 disenchantment (i.e. the transformation of the mythic lifeworld into the modern) which Weber referred to under the title of cultural rationalization was merely an episode in a longer-running process of rationalization which represented the attempt by the human species to bring the natural world under control through a process of identification (i.e. concept formation) and experimentation. This thesis is complex and speculative (such that serious consideration of it is well beyond the scope of my project here), but what is clear enough is that Adorno and Horkheimer agree with Weber (or at least the reading of Weber which I have given here) about how this rationalization process will ultimately play out. As we have just shown, Weber’s analysis suggests that modern subjects can be expected to lose their ability to undertake critical normative analyses of the social systems which organize their interactions and to become more and more inclined to see both themselves and other people as mere objects (as opposed to subjects deserving of dignity and respect). Thus, when Adorno and Horkheimer claim that “Enlightenment’s program was the disenchantment of the world” their statement has a double-meaning (Dialectic of Enlightenment, 1). On their account, not only does rationalization lead to the breakdown of belief in the enchanted, mythical world, but it also means the development of a new, unfriendly and inhumane, form of society. In short, rationalization ultimately leads to the loss of (among other things) moral consciousness. Efforts to critique or resist exploitative social systems or to join with others in solidarity in defense of human dignity are therefore doomed to fail. In this case, constitutional democratic institutions cannot be understood as Habermas would like to understand them – as social institutions which work to maintain the potential for social progress – because modern subjects can no longer be conceived as being capable of generating the motivation to support such a project. The project of social emancipation, announced in the foundational documents of the world’s major 107 constitutional democracies, is thereby revealed by Horkheimer and Adorno’s Weberian analysis to be an empty one, a promise which is incapable of redemption. 2.2.5 Habermas’s Critique of Weber Habermas’s critique of Weber’s social theory is complex, but the most crucial element of it is his critique of Weber’s theory of lifeworld rationality. In a nutshell, Habermas holds that, though Weber is correct to claim that we need to develop a theory of lifeworld rationality in order to explain social action, Weber’s account fails to grasp the way in which members of modern societies actually generate knowledge and action83. The chief reason for this failure, in Habermas’s mind, is that Weber does not appreciate the communicative nature of knowledge and action generating processes84. Habermas expresses this objection in the charge that Weber’s theory of rationality is ultimately “logocentric”. That is to say that accepting it amounts to “neglecting the complexity of reason effectively operating in the lifeworld… and restricting reason to its cognitive-instrumental dimension” (Questions and Counter-Questions, 408). Another shorthand which Habermas uses to refer to his basic objection is that Weber remains trapped in the “paradigm of the philosophy of consciousness” (The Philosophical Discourse of Modernity, 296). That is to say that Weber’s account of rationality is developed from within the theoretical tradition which conceptualizes rationality as a practice of reflection 83 For a good introductory discussion of Habermas’s critique of Weber’s account of rationality, see Darrow Schecter’s The Critique of Instrumental Rationality from Weber to Habermas (especially chapter 6). 84 In his Reason and Rhetoric in Habermas, William Rehg points out that, in leveling this critique against Weber, Habermas is at least partially inspired by the work of Stephen Toulmin. In, The Uses of Argument and Human Understanding, Toulmin argued that adopting the dominant way of conceptualizing lifeworld rationality (as instrumental rationality) leaves us unable to explain how we justify many of the claims which we do, indeed, succeed in justifying. This suggests that the instrumental-rational characterization of rationality which Habermas attributes to Weber is incomplete (at least insofar as it is meant to be a reconstruction of the form of rationality which is actually operating in the modern lifeworld). See Habermas’s discussion of Toulmin in Theory of Communicative Action, volume 1, p. 24-27. 108 that is undertaken by individual subjects operating in isolation from one another85. On this view, members of the lifeworld primarily set their beliefs and determine which actions they will take by engaging in processes of internal reflection (akin to the form of reflection which is on display in Descartes’ Meditations on First Philosophy) which are guided by the basic principles of formal logical analysis and empirical-scientific analysis86. Habermas calls his alternative to this way of conceptualizing rationality the “paradigm of mutual understanding” (The Philosophical Discourse of Modernity, 296). The difference is that, whereas the paradigm of consciousness conceives rationality as a process undertaken “in the mind” of individual subjects, the paradigm of mutual understanding puts this “cognitive- instrumental aspect of reason in its proper place as part of a more encompassing communicative rationality.” (The Theory of Communicative Action, vol. I, 390). This is to say that the paradigm of mutual understanding ultimately conceives modern rationality as a communicative practice. This does not mean that it does not involve a commitment to logical analysis or to the basic principles of empirical-scientific investigation. Instead, it means that modern rationality involves more than these commitments. It has to be understood as a form of communication as well, as a linguistically-mediated form of social interaction. 85 Habermas does not intend this critique to apply only to Weber. Indeed, he thinks that most of the classic figures in the Western philosophical tradition have not, in their formulations of “reason” or “rationality”, paid sufficient attention to the intersubjective and linguistic nature of rationality. Peter Dews points out that, though initially Habermas’s claim that this paradigm shift was necessary was met with rejection or incomprehension, many of the leading philosophers in the Continental tradition (including Derrida and Foucault) appear to have ultimately accepted Habermas’s claim that this shift is necessary to undertake in order to adequately conceptualize the rationality of the lifeworld. See Dews’, The Paradigm Shift to Communication and the Question of Subjectivity: Reflections on Habermas, Lacan, and Mead (p. 483-490). 86 For an analysis of the emergence of this monological and instrumental concept of rationality, and a succinct account of the reasons that Habermas finds it to be inappropriate for characterizing the actual practices of knowledge and action generation which take place in the lifeworld, see Martin Jay’s Reason After Its Eclipse: On Late Critical Theory (especially chapters 4, 5, 6, and 7). 109 To see why this is so (i.e. why we must conceptualize lifeworld rationality as a communicative practice), we might ask ourselves when it is that members of the lifeworld actually do engage in the practice of knowledge-generation. When do we (as members of the lifeworld) actually feel the need to engage in reflection about how things in the world are or how they ought to be? Following Habermas (who was himself following, via Karl Otto-Apel, the American pragmatists), I submit that the circumstances under which we do this, generally, are situations in which we find ourselves engaged in disagreements or disputes. We frequently (though not always) attempt to settle these through communication. Absent the provocation of contrary opinions, however, we generally go about our daily lives, assuming that our basic beliefs are unproblematic (or perhaps not even reflecting on them at all). But if the way that I have presented things here is accurate, if most members of the lifeworld really do not feel compelled to re-think their basic beliefs or commitments unless they get involved in disputes about them, and if it is really true that, in such cases, members of the lifeworld will tend to feel compelled to resolve the dispute through communication (which can turn into argumentation), then an understanding of the rationality of the lifeworld really must involve an analysis of the form of communication which is characteristic of the lifeworld, because it will, at least most of the time, be through engagement in communication with one another that members of the lifeworld will come to challenge, and potentially revise, their own beliefs and action plans. And this means that the form of communication will play a role in determining how beliefs and actions are generated in the lifeworld such that we must characterize this form of communication in order to understand how belief and action generation actually does take place. Thus, in part at least, our theory of lifeworld rationality will have to become a theory of communication – a theoretical reconstruction of lifeworld communication practices. 110 Habermas attempts to show the limits of the consciousness paradigm which he attributes to Weber by pointing out that, if modern rationality really was as the proponents of the consciousness paradigm imagine, then readily apparent characteristics of modern societies could not be explained. For instance, in this case members of modern societies would have no way to generate either lasting agreements with one another about the nature of the external world or lasting shared commitments to particular forms of social interaction. This is because they would not have at their disposal a shared commitment to a process of communication to use in repairing breakdowns in the store of shared beliefs and action orientations (Schecter, 187). But, since these are readily apparent features of modern social life, since disputes frequently are resolved in lasting fashion and cooperative action plans are developed and maintained over time, the consciousness paradigm must be too narrow to capture important characteristics of modern rationality. This again suggests that modern rationality must be understood as something more than an internally undertaken process of reflection (in the Cartesian mold). It must be understood as a social practice through which agreements (i.e. mutual understanding) can be developed. Thus, again, modern rationality should be conceptualized as a communicative, and intersubjective, practice. It should be understood as the way that moderns use language to generate shared situation definitions (i.e. knowledge) and action-orientations (i.e. commitments to engage in particular forms of action). By reconceptualizing rationality in this way, Habermas believes that he has shown that he must investigate the way in which moderns use language in order to develop a theory of modern rationality that does not neglect its complexity. Thus, Habermas’s first step in developing his theory of lifeworld rationality is to develop a theory of language-use. The method that Habermas makes use of in this endeavor is “reconstructive”. That is to say that he begins by taking the 111 phenomena which could not be explained by thinkers who accept the paradigm of consciousness, the development of mutual understanding and mutual commitments, as a basic characteristic of modern social life. He then attempts to make use of his own status as a member of a rationalized communication community to make theoretically explicit the otherwise implicit knowledge of how language can be used, by communicating subjects, to achieve these things (i.e. he attempts to translate his implicit know-how into a theoretical know-that [On the Pragmatics of Communication, 33]). He can then tentatively affirm that language-use functions in the way that he has described because it must in order for these initially identified social phenomena to take place. Now, the Kantian roots of the method of rational reconstruction just described should be immediately evident. And, indeed, Habermas repeatedly describes himself as following not just in the tradition of Marx, but also in the tradition of Kant. However, Habermas believes that the transcendental philosophical project to which Kant was committed is no longer capable of being carried through. He thinks of his method, instead, as a form of “quasi-transcendental”, or weak- transcendental, analysis (On the Pragmatics of Communication, 42). The chief upshot of this is that Habermas believes that he must subject his conclusions to empirical tests87. Then, if his own reconstruction of how language might be used to achieve shared agreements or cooperative action proves to be non-idiosyncratic, he can bolster his claim that his theory correctly describes the way in which moderns use language to generate knowledge and action (Couture, 407). 87 Habermas’s insistence that the theory of modern rationality could conceivably be falsified by empirical evidence has been criticized by his friend and close-collaborator Karl-Otto Apel on the grounds that the basic norms or presuppositions involved in communication oriented to mutual understanding are transcendentally grounded. See Apel’s Normatively Grounding ‘Critical Theory’ through Recourse to the Lifeworld? A Transcendental-Pragmatic Attempt to Think with Habermas against Habermas and Habermas’s Discourse Ethics (chapter 4 of his Moral Consciousness and Communicative Action) for the main interventions in this debate by Apel and Habermas. See also Marianna Papastephanou’s Communicative action and philosophical foundations: comments on the Apel-Habermas debate. 112 Habermas ultimately claims that his account of modern language-use has a near-universal application (i.e. that his theory of rationality correctly reconstructs the practices through which members of the vast majority of existing societies generate shared knowledge and produce collective action in the lifeworld)88. Because Habermas claims that modern rationality involves a commitment not only to the principles of logical reasoning and empirical-scientific investigation, but also to certain intersubjective, communicative, practices, and therefore also to certain normative presuppositions (those which subjects who are “playing the language game” of modern rationality would have to make as a part of their interaction with one another), he can develop a diagnosis of the times which is markedly different from Weber’s account. In brief, Habermas claims that cultural rationalization should not be expected to result in a situation in which modern subjects are fated to become amoral calculators dedicated to furthering their own, individual, interests. He attempts to use his alternative account of lifeworld rationality to ground this more optimistic outlook and to thereby support the claim that, contrary to Adorno and Horkheimer’s pessimistic conclusions, modern societies retain the potential to become more just and humane through increased democratization. I turn now to explaining in detail how Habermas sees his alternative theory of modern rationality licensing this more optimistic account of modern societies. 2.3 Habermas’s Alternative to Weber’s Social Theory Now that we have recalled the basics of Weber’s account and gained some sense of how Habermas criticizes it, we are prepared to examine Habermas’s alternative to Weber’s theory of 88 Habermas’s claim that his theory has a nearly universal scope has been criticized for various reasons. Some have found it to be indicative of a sort of European ethnocentrism. Others have claimed that theorizing rationality in this way threatens to implicitly label innovative uses of language as deviant. I will briefly consider criticisms like these when I recapitulate Richard Rorty’s critique of Habermas’s universality claim (in section 2.7.1). 113 modern rationality (2.3.1) and to unpack Habermas’s alternative to Weber’s theory of the organization of social action (and the alternative diagnosis of the times that Habermas bases upon it) [2.3.2]. 2.3.1 Habermas’s Theory of Modern Rationality Because, as I have already said, Habermas understands ‘rationality’ to refer to the practices which members of the lifeworld use to generate knowledge and action, and because he claims that these practices must be understood as linguistic practices, he builds his theory of rationality out of his theory of language-use, “Universal Pragmatics” (hereafter “UP”). UP is a theoretical reconstruction of the way that members of the lifeworld use language to generate shared situation definitions (i.e. shared beliefs) and shared collective action orientations (i.e. shared commitments about how to organize social action) [On the Pragmatics of Communication, 4]. It should be understood as a theory of rationality, in the sense of the term introduced above, because it explains how knowledge and action are generated in the lifeworld. We can use a three-track model to present the main forms that Habermas believes this process can take. Communication might proceed either (b) smoothly, (c) problematically, or (d) strategically (this characterization is mine, not Habermas’s). Before we characterize these different tracks that communication might take, however, we must (a) introduce some of the basic terminology which Habermas employs in his presentation of UP. (a) There are at least five key terms which we must understand in order to understand UP: lifeworld, world-concept, speech-act, validity claim, and illocutionary effect. We have already seen how Habermas defines ‘lifeworld’. To recall, for Habermas the lifeworld represents the segment of society in which social action is organized more or less intentionally (through the normative analyses undertaken by social subjects or through sustained adherence to basic 114 patterns of interaction). The organization of social action in the rationalized lifeworld (i.e. the lifeworld which is shaped by the process of rationalization) is the phenomena which both Habermas and Weber seek to explain by developing their respective theories of modern rationality. For Habermas, individuals born into a society are socialized into that society’s lifeworld. Through this process they come to take on an extremely wide range of shared beliefs and shared collective action orientations (i.e. normative commitments). Following Habermas, we can refer to this set of shared beliefs and normative commitments as the “shared lifeworld background” (Theory of Communicative Action, vol. I, 70). By reflecting on the nature of the beliefs and commitments which make up the shared lifeworld background of members of modern societies, Habermas (following Kant’s transcendental-deductive method in the first Critique, but with the reservations discussed above) believes that he can reconstruct the form of experience produced by societal rationalization (recall that this is also Weber’s first move in attempting to characterize the modern form of rationality). Habermas describes the modern form of experience in terms of basic world-concepts. Members of rationalized lifeworlds learn to assign the elements of their experiences to one of three “worlds” [The Philosophical Discourse of Modernity, 313-314]. They interpret them as either objects (things belonging to the objective world), other subjects (agents belonging to the intersubjective, social, world), or internal experiences (mental phenomena which belong to the private, subjective, world) [The Theory of Communicative Action, vol. I, 70]. On Habermas’s account, the form of experience taken on by members of a rationalized lifeworld is reflected in the speech-acts (i.e. linguistic utterances) which those subjects perform in the course of daily life. With the performance of each speech-act, subjects take a position on 115 the objective world, the intersubjective world, and on their own internal, subjective, world. That is to say that, with the performance of each speech-act, subjects make a claim about how the objective world is, how the intersubjective world ought to be, and about the sincerity of the speech-act which they perform (On the Pragmatics of Communication, 166-167; The Philosophical Discourse of Modernity, 313-314). Each speech act, then, can be understood as raising three separate “validity claims”: a claim to truth (i.e. to providing a true description of the external world), to correctness (i.e. to providing a correct account of the norms which should govern social interactions), and to truthfulness (i.e. to providing a sincere expression of one’s internal, subjective, world) [The Theory of Communicative Action, vol. II, 121]. Habermas explains the organization of social action in the lifeworld through his account of communication between subjects. We can represent this using the following general scheme: Ego performs a speech act. By doing so he/she raises the three validity claims just described. Alter responds to the speech act. He/she may either accept or reject the claims made by Ego (Truth and Justification, 164). If Alter accepts the claims that Ego raises, he/she accepts as true Ego’s definition of the situation that both Ego and Alter confront and accepts as correct Ego’s understanding of the normative requirements that both Ego and Alter are under in that situation. Alter also accepts that Ego was sincere in performing his/her speech act. In this case Ego’s speech act can work to generate action by Alter. The reason this is so is that Alter, in this case, recognizes that Ego’s normative claim is correct, and, because Alter (along with Ego) is committed to acting in accordance with the normative requirements that he/she believes to obtain in a given situation (Ego and Alter both having taken on this commitment through the process of childhood socialization), this means that he/she must understand him/herself to be under an obligation to act in accordance with Ego’s normative claim. Alter can therefore expect to feel 116 motivated (at least to some extent) to act in accordance with the normative claim that Ego raises. Habermas refers to the ability of speech acts to produce action in this way as the illocutionary force of speech acts. It is because speech acts have an “illocutionary binding and bonding effect” that they can be used to coordinate social action in the lifeworld (Moral Consciousness and Communicative Action, 58). (b) When communication proceeds smoothly, subjects easily come to mutual understanding with one another and effortlessly organize their interactions (On the Pragmatics of Communication, 247). As might already be obvious, a big part of the reason why they are able to do this because of their shared lifeworld background89. As we have already said, this background equips subjects with a wide range of shared beliefs and normative commitments. Thus, when a subject performs a speech act which raises validity claims that are covered by (i.e. obviously rooted in or grounded upon) these shared beliefs/commitments, then the audience to whom the speech-act is performed can be expected to accept all three validity claims without difficulty. In that case, because they will have reason to accept the speech-act (because they already accept as true/correct the validity claims raised by it), they will accept the situation definitions proposed in 89 For Habermas all successful communication (i.e. communication which functions to produce mutual understanding and to organize social action) depends upon this shared lifeworld background: “It would be completely impossible to explain how everyday processes of consensus formation repeatedly succeed in overcoming the hurdle posed by the risk of disagreement built into practices of reaching understanding in the form of criticizable validity claims were we not able to take into account the massive preunderstanding of participants in communication: this preunderstanding resides in the self-evident features of an intuitively present, prereflexively known form of life that is presupposed as unproblematic – features that have become culturally habitualized for the participants in communication and into which they have been socialized. Subjects acting communicatively, in their superficially autonomous achievements in reaching understanding, are dependent on the resources of a background knowledge of the lifeworld that is not at their disposal.” (On the Pragmatics of Communication, 209). Whether or not Habermas has succeeded in generating a sufficiently clear account of the lifeworld, which explains how it actually performs the function which Habermas attributes to it is a matter of ongoing dispute. Barbara Fultner maintains that Habermas does not succeed in this and that his theory of communication is therefore of limited use in explaining how significant disputes in the lifeworld, for instance “racial disagreements” might be resolved. See Fultner’s Intelligibility and Conflict Resolution in the Lifeworld. Also see section 2.7.2, where I reconstruct and discuss Amy Allen’s challenge to Habermas’s theory of lifeworld rationality. 117 the speech act and feel (at least weakly) compelled to act on the obligations associated with its normative component. Again, this is what Habermas refers to when he refers to the illocutionary force of speech acts. Habermas gives the example of a professor addressing one of his/her students with the following speech act: “Please bring me a glass of water.” (On the Pragmatics of Communication, 141). If the professor and the student already share the conviction that it is true that the world is such that it is possible for the student to bring the professor a glass of water, that it is correct to claim that it would be normatively appropriate for the student to undertake this task, and if the student, on top of this, accepts that the professor means his/her speech-act sincerely (i.e. that the Professor is being truthful), then the speech-act should work to induce the student to bring the professor a glass of water. This is a basic example of the shared lifeworld background enabling communication to coordinate social action in the lifeworld smoothly. (c) Habermas believes that, much of the time, communication in the lifeworld proceeds smoothly. That is, the speech-acts raised in the context of everyday life are generally understood by the people to whom they are addressed and accepted by them. Social interactions are thereby organized. However, the speech-acts performed by a member of the lifeworld may also be rejected by those to whom they are addressed. This means that Alter rejects at least one, and possibly all three, of the validity claims raised by Ego in his or her speech-act. We might call an instance of communication in which the speech-act performed by Ego is rejected by Alter in this way problematic communication. Habermas holds that, when communication turns out this way (i.e. when Ego’s speech- act is rejected by Alter along at least one, but possibly more, of the lines of validity), subjects who have been formed within a rationalized lifeworld can be expected (if they desire to resolve 118 the dispute without engaging in deception, the use of force, or through the offering of inducements) to engage in a process of argumentation directed at repairing the disrupted consensus (i.e. the breakdown in the shared lifeworld background)90. Argumentation is a particular form of communication in which problematic validity claims are made the subject of conversation. Its structure mirrors that of a competition. Thus Ego, who initially raised the problematic claim, attempts to provide reasons which speak in favor of the claim’s truth or correctness. Alter, who rejected the claim, must either accept that the reasons that Ego offers show that the initial claim actually was deserving of assent (i.e. Alter must withdraw his/her rejection of the claim) or, in response, must use further reasons to show that the reasons that Ego offered in defense of the problematic claim actually do not show what Alter believes that they show (i.e. that the initially raised claim actually is true or correct). In that case Ego will have to either withdraw his/her claim or offer further reasons which show that Alter’s reasons for rejecting Ego’s initial claim are not convincing and that the claim actually is worthy of assent. The process continues in this way until Ego and Alter can reach a shared understanding about what is true or correct. Then, having restored the otherwise fractured background consensus, Ego and Alter can resume normal communication aimed at developing shared beliefs and cooperative action. In Habermas’s own words: 90 Although subjects can be expected to have, through childhood socialization, internalized a commitment to entering into argumentation in this situation, nothing forces them to engage in argumentation. They might sometimes instead decide to break off further communication or to attempt to switch over from what Habermas calls a communicative orientation to a strategic one (i.e. to switch from attempting to convince Alter of the truth/correctness of the claims raised in the speech act to forcing Alter to accept some claim or to act in some way) [On the Pragmatics of Communication, 236]. Some theorists have queried Habermas’s projects on the grounds that it fails to establish that members of the lifeworld will actually internalize a strong enough commitment to engaging in argumentation for us to expect that they will generally see communication as the appropriate way to resolve lifeworld disputes. Seyla Benhabib uses the phrase “rationalist fallacy” in this context. See her Critique, Norm, and Utopia: A Study of the Foundations of Critical Theory. See also Atle Møen’s Democracy and public communication: A Durkheimian Lens on Habermas. 119 “In discourses we attempt to reestablish or replace an agreement that had existed in communicative action and became problematized… The goal of argumentation is to work through a situation that arises through the persistent problematization of validity claims that are naively presupposed in communicative action. This reflexive form of communication leads to a discursively produced, justified agreement (which of course can settle once again into a traditionally pregiven, secondarily habituated agreement).” (On the Pragmatics of Social Interactions, 100). Now, in order to develop a characterization of modern rationality, Habermas must give an account of the basic inferential principles and practical norms which subjects make use of and adopt when they engage in argumentation. This is because, given the role that Habermas assigns argumentation in his theory of communication, argumentation must be understood as the predominant practice through which subjects generate knowledge and action in modern societies (because, as I have already suggested above, members of the lifeworld will generally only have occasion to engage in practices of knowledge and action generation when some dispute arises between them, and they will, if Habermas is correct, rely on argumentation to structure this interaction)91. Again, this is not to say that Habermas claims that members of the lifeworld feel 91 Some critics have charged that, by developing a theory of rationality to explain social integration, Habermas is giving short-shrift to other drivers of social action. Brian Whitton, for instance, objects to Habermas’s account on the grounds that it does not take sufficient notice of the way that “moral will formation” must be understood as “sensuous” (Universal Pragmatics and the Formation of Western Civilization: A Critique of Habermas’s Theory of Human Moral Evolution). For Whitton, Habermas’s account of modern rationality is both “highly abstract” and “disembodied”. In short, Whitton holds that it is of limited usefulness because it does not consider the way that lifeworld disputes are actually communicatively resolved in the lifeworld. Instead, it only reconstructs some basic ideals which most members of the lifeworld are likely to accept regarding how disputes ought to be resolved. Arash Abizadeh levels a similar critique in his On the Philosophy/rhetoric Binaries: Or, is Habermasian Discourse Motivationally Impotent? Byron Rienstra and Derek Hook, in their Weakening Habermas: The Undoing of Communicative Rationality, also criticize Habermas’s account on the grounds that it departs too significantly from empirically observed reasoning processes. For Rienstra and Hook, Habermas’s theory of communicative rationality assumes that participants in the communicative process will possess “heroic” qualities which most members of the lifeworld do not possess. On this ground, Rienstra and Hook criticize Habermas’s account for being overly 120 themselves to be under something like an overwhelming ethical commitment to resolving all lifeworld disputes through communication92. Indeed, Habermas clearly accepts what no one can deny – that disputes in the lifeworld are sometimes (perhaps even frequently) settled through compromise, bargaining, the offering of inducements, or through the use of force (among other ways). Instead, Habermas’s claim is that argumentation is, and will likely remain, the predominant practice that members of the lifeworld rely upon to resolve disputes for (1) functional reasons, and, (2) because members of the lifeworld see argumentation as an appropriate practice to use to resolve disputes given the sorts of validity claims which are raised in speech acts, and (3) because those members of a community who habitually relied on some alternative form of dispute resolution would soon lose the trust and esteem of their fellow community members (such that members of the lifeworld face significant disincentives to regularly refusing to sincerely engage in argumentation to resolve disputes). (1) To begin with the functional analysis, Habermas claims that the only practice which members of a rationalized lifeworld can regularly make use of in their attempts to resolve lifeworld disagreements is argumentation93. This is because widespread reliance upon the main optimistic and not rooted firmly enough in empirical reality. I cannot resolve the question of whether or not Habermas’s account is vulnerable to these objections here. 92 Though some interpreters of Habermas have indeed thought that this is the best way to read him. That is, they have held that Habermas should be understood as claiming that members of a rationalized lifeworld are socialized into an admittedly weak ethical commitment to resolving disputes in accordance with principles that could, in the final analysis, be redeemed in appropriately structured argumentation. Tony Couture, for instance, thinks that we should see Habermas as suggesting that members of the lifeworld understand themselves to be involved with one another in what he calls “communicative contracts” (Couture, 412). These are moral relationships which require that disputes be resolved through fairly structured argumentation. “The contract is a commitment to clear and consistent verbal negotiation rather than violence or treachery…” (Couture, 413). Couture claims that we usually only have a “merely intuitive knowledge” of our commitment to these communicative contracts, but that, upon investigation, we can make it clear to ourselves that we are committed to such relationships, in a moral sense. 93 Jari Niemi, in his article, Jurgen Habermas’s Theory of Communicative Rationality: The Foundational Distinction between Communicative and Strategic Action, makes this point in the context of a discussion of the difference between accounts of social action which employ communicative, and strategic, concepts of lifeworld rationality (respectively). On Niemi’s account, Habermas argues that we must adopt a communicative account of lifeworld rationality not because he believes that members of the lifeworld do not have the choice to resolve disputes 121 alternative methods of dispute resolution – the use of inducements, temporary compromise, or reliance on imperatives backed up by force – could produce only unstable and temporary agreements between subjects. Successful dispute-resolution through argumentation, on the other hand, anchors shared commitments about the nature of a situation or the norms which ought to govern social interactions in the minds of the disputants by allowing them to work out together what is true or correct on the basis of shared reasons (and, since disputes which arise in the lifeworld largely have to do with rather mundane questions, not the perennial concerns of philosophers, this process can proceed with regularity and relative ease). A lifeworld in which subjects had largely given up the attempt to resolve disputes through argumentation (as part of the process of communication aimed at reaching mutual understanding), then, would be one in which regular patterns of social action would not occur94. And thus, the fact that members of the strategically, but only because he believes that the strategic resolution of disputes cannot become the predominant form of dispute resolution in the lifeworld. Again, this is because, if members of the lifeworld did adopt a predominantly strategic approach to dispute resolution in the lifeworld, the outcome of processes of dispute resolution would not enjoy the presumption of legitimacy in the minds of the members of the lifeworld (the outcome would be seen, instead, as a mere modus vivendi). Members of the lifeworld would thus likely depart from their strategically arrived at solutions as soon as their situation changed in such a way that it came to be in their interest to do so. But, in that case, it would be very difficult (if not impossible) to generate lasting agreements or shared commitments. But we can, and frequently do, generate these kinds of agreements. Thus, the rationality of the lifeworld (i.e. the predominant form of dispute resolution in the lifeworld) must be communicative, not strategic. 94 In her article contrasting Habermas and Apel, Communicative Action and Philosophical Foundations: Comments on the Apel-Habermas Debate, Marianna Papastephanou puts this point in terms of Habermas’s attempt to “secure the priority of communicative over strategic reason” (61). By this phrase, Papastephanou means to refer to Habermas’s attempt to show that communication oriented to mutual understanding (i.e. the “language-game” I have just been sketching out (in 2.3.1 [b-c]) in which the three validity claims are raised with the performance of each speech-act and in which argumentation is relied upon to resolve disputes when disagreements about the nature of the shared situation or disagreements about the norms that should govern action become apparent), and not strategic (i.e. instrumental) rationality, is the form of rationality which members of the lifeworld regularly use to organize social action. Papastephanou agrees with my reading of Habermas when she says, further, that the way that Habermas attempts to justify this claim about the priority of communicative reason is by “appeal to a sociology linguistically reformulated so as to explain the coordination of action via communicative means…” (61). By this phrase she expresses the same point that I have just tried to make – that Habermas believes that we can be sure that communication oriented to mutual understanding plays the role of the rationality of the lifeworld because, if it did not, then minimal social integration (i.e. the ability of members of the lifeworld to regularly coordinate social action) would be impossible. Papastephanou points to the following passage from Habermas’s Reply to my Critics (written in the immediate aftermath of the publication of The Theory of Communicative Action) as evidence that her (and my) reading of Habermas is correct. Habermas writes, 122 lifeworld frequently do succeed in developing long-term agreements about the nature of their shared situation and long-term agreements about the norms which ought to govern social interactions (i.e. the fact that social action is not practically impossible) indicates that argumentation (as part of communication oriented to mutual understanding) is, at least for the moment, the predominant mode of knowledge and action generation in the rationalized lifeworld. And because, furthermore, a social world in which long-term agreements and shared practices could not be generated would be a highly unstable one, we can say that a generalized commitment to argumentation is functionally necessary for social reproduction. (2) The argument that I have just rehearsed suggests why Habermas believes that argumentation (and the larger process of communication oriented to reaching mutual understanding, of which it is a part) is functionally necessary for the reproduction of a rationalized lifeworld. However, Habermas’s analysis does not stop at this point. He also seeks to show why, from the perspective of members of the lifeworld, argumentation appears to be an appropriate practice (though, again, not necessarily a practice which is understood as compulsory by members of the lifeworld in the sense of a strict ethical duty) to use when disputes arise and are significant enough that they must be resolved in a lasting way. As I have already said, Habermas develops his characterization of argumentation through the method of rational reconstruction. That is to say that he attempts to produce an account of the “Because all lifeworlds have to reproduce themselves through the agency of action oriented towards reaching understanding, so the general character of communicative rationality stands out within the multiplicity of concrete norms of life.” (61). What this passage clearly suggests is that Habermas’s position is the one that both Papastephanou and I attribute to him – communication oriented to mutual understanding (involving argumentation) must (at least for the moment) play the role of the rationality of the lifeworld given that the lifeworld is not characterized by overwhelming social instability. In Papastephanou’s words, in this passage Habermas is making the claim that “the attainment and maintenance of social order” must “be primarily a matter of communicative action and not strategic [rationality]…” (68, FN 72). Russell and Montin, among others, also read Habermas this way. See their article, The Rationality of Political Disagreement: Ranciere’s Critique of Habermas (section I). 123 norms and principles which participants involved in argumentation feel compelled to accept by (1) cataloging subjects’ pre-theoretical intuitions about how argumentation processes should be structured and (2) then making use of his own status as a member of a language community to provide, from the participant perspective, a plausible account of the reasons that members of the lifeworld possess these intuitions (The Hermeneutic Claim to Universality, 186). An important background assumption here is that members of the lifeworld think of argumentation as a process which must approximate certain ideals in order to be capable of correctly deciding between conflicting validity claims95. In other words, Habermas starts from the assumption that members of the lifeworld do not accept as appropriate just any process of dispute resolution. Instead, they believe that argumentation, as characterized below, possesses particular qualities that make it the appropriate mechanism for resolving lifeworld disagreements. They believe that argumentation should be relied upon to settle disagreements, in short, because it is a procedure which can be relied upon to determine what is true or correct (and claims to truth and correctness are the sorts of claims we are dealing with when we are trying to resolve disputes which are generated by the rejection of a speech-act)96. Although the analogy is not perfect, we might think of this practical commitment (I will sometimes, in what follows, use this phrase, “practical commitment”, to emphasize that the 95 As Maeve Cooke points out in her article, The Point of Discourse, Habermas presumes that members of the lifeworld believe that the disputes which arise between them (about how their shared situation is, which norms ought to govern their behavior, or about whether or not a speaker is behaving sincerely) can be resolved correctly in the sense of context-transcendent, as opposed to context-immanent, correctness. The shared belief that disputes are about matters which can be described or resolved correctly or incorrectly is a necessary presumption given that members of the lifeworld believe that there is an appropriate form of communication to use in resolving these disputes. 96 Thus, the commitment of members of a rationalized society to argumentation as the appropriate practice of dispute resolution is grounded upon the shared basic world-concepts which Habermas believes are the legacy of the process of cultural rationalization. Because, in the performance of our daily speech acts, we raise validity claims to truth, rightness, and sincerity, the practice which we believe we should rely upon to resolve the disputes which arise in daily life is that one which we believe can correctly adjudicate these claims (i.e. the practice which can plausibly claim to help us sort through which speech-acts actually do make good on the validity claims they raise and which speech-acts, on the contrary, fail to make good on the validity claims which they raise). 124 commitment to argumentation guides practice, but is not a straight-up ethical commitment, as one might think that something like J.S. Mill’s harm principle97 is) as analogous to the practical commitment that a cancer researcher has to relying on certain methods of investigation (the use of randomization, the method of double blind, controlled study, etc.) when he or she attempts to determine whether or not some experimental cancer drug decreases 5-year mortality rates for a specific type of cancer. The commitment of the researcher, in this case, is not really an ethical commitment. Instead, it is a commitment to practices which make sense given the sort of question that is being asked (whether the use of the drug under investigation by a target population can be expected to have the effect of reducing the mortality rate or not). Similarly, the commitment of members of the lifeworld to engaging in argumentation to resolve disputes does not have to be taken to be understood by those members (among whom Habermas, of course, places himself) as an ethical commitment (though it is a commitment which has normative implications). Instead, it can be understood a commitment to a set of dispute-resolution practices which make sense given what is being disputed about – the truth of some claim to represent the world as it is, the correctness of some normative claim about how interactions should be regulated, or the sincerity of the speech-act which someone has performed. I turn to explaining why Habermas holds that members of the lifeworld should be expected to see argumentation as an appropriate practice for the purpose of dispute-resolution (given the types of validity claims which are being disputed about in a rationalized lifeworld) now. On Habermas’s reconstructive analysis, the decision to engage in argumentation processes involves participants in three distinct sets of commitments, which Habermas 97 See Mill’s On Liberty. 125 sometimes refers to as “pragmatic presuppositions of argumentation”: dialectical, rhetorical, and logical98. We have already briefly suggested what the dialectical commitment involves. In brief, members of the lifeworld think of argumentation as a competition or game between proponents and opponents of a validity claim. On this account, a successful proponent of a claim is that participant in conversation who can demonstrate to the other participants, through the mobilization of good reasons, that the claim(s) that he/she endorses should be accepted. Because they think of argumentation in this way, participants in argumentation accept that they must limit their participation in argumentation to relevant matters and must proceed authentically (i.e. must really be attempting to make it clear that some claim either deserves assent or should be rejected, not merely trying, through stratagem, to get the claim accepted or rejected). For Habermas, the reasons that members of the lifeworld can be expected to demand that participants in argumentation accept these dialectical commitments are clear enough. Indeed, if a 98 In Moral Consciousness and Communicative Action Habermas gives a general gloss on what these principles or presuppositions of argumentation are like: “It makes sense to distinguish three levels of presuppositions of argumentation along the lines suggested by Aristotle: those at the logical level of products, those at the dialectical level of procedures, and those at the rhetorical level of processes. First, reasoning or argumentation is designed to produce intrinsically cogent arguments with which we can redeem or repudiate claims to validity…In procedural terms, arguments are processes of reaching understanding that are ordered in such a way that proponents and opponents, having assumed a hypothetical attitude and being relieved of the pressures of action and experience, can test validity claims that have become problematic. At this level are located the pragmatic presuppositions of a special form of interaction, namely everything necessary for a search for truth organized in the form of a competition. Examples include recognition of the accountability and truthfulness of all participants in the search. At this level I also situate general rules of jurisdiction and relevance that regulate themes for discussion, contributions to the argument, etc. …Finally, in process terms, argumentative speech is a process of communication that, in light of its goal of reaching a rationally motivated agreement, must satisfy improbable conditions. In argumentative speech we see the structures of a speech situation immune to repression and inequality in a particular way: it presents itself as a form of communication that adequately approximates ideal conditions. This is why I tried at one time to describe the presuppositions of argumentation as the defining characteristics of an ideal speech situation… The intention of my earlier analysis still seems correct to me, namely the reconstruction of the general symmetry conditions that every competent speaker who believes he is engaging in an argumentation must presuppose as adequately fulfilled.” (Moral Consciousness and Communicative Action, 87-88). 126 participant in the process of argumentation was revealed to be proceeding inauthentic-ally, or if it became clear that the participant’s contributions to the process were largely irrelevant, then there would be no reason to assume that the outcome of the argumentation process should really be taken to settle the question of whether or not a disputed claim should be accepted or rejected. This would be because the argumentation process could not be understood as dealing with the matter at hand. It would have to be seen, instead, as irrelevant (if the contributions of the participants were off-topic) or as inauthentic (if the participants were revealed to be proceeding strategically, not honestly attempting to determine whether or not a disputed validity claim deserved assent). The logical commitments that members of the lifeworld believe that participants must take on in argumentation include a commitment to the basic principles of logic (e.g. the principle of non-contradiction, the law of excluded middle… etc.). The commitment of moderns to these principles is made manifest by the way in which participants attempt to redeem their claims, and criticize their opponent’s claims, in actual argumentation processes. In brief, participants in argumentation attempt to either show that a claim deserves assent or that it should be rejected by constructing arguments in which a set of premises is supposed to provide an inferential warrant (on the basis of a prior acceptance of the basic logical principles) for some further claim, the conclusion. The reason that members of the lifeworld can be expected to only see as legitimate argumentation processes in which participants manifest a commitment to the basic principles of logical analysis is that argumentation is taken to be an attempt to determine whether or not claims are true or correct on the basis of reasons. But a commitment to determining whether or not a claim is true or correct on the basis of reasons involves a commitment to evaluating the 127 reasons given in favor of the claim through the principles of logical analysis, since only these principles function to allow us to determine that the inferential link which supposedly connects the conclusion to the reasons given either really is, or really is not, such that the conclusion is supported by the reasons (i.e. that an acceptance of the truth or rightness of the reasons offered implies an acceptance of the truth or the rightness of the conclusion). Finally, the rhetorical commitments that members of the lifeworld believe must be taken on by participants in argumentation include a commitment to “inclusivity” (i.e. to allowing all subjects who can communicate, and who have something at stake in the dispute at issue, to participate in the process if they so desire), to “equal distribution of communicative freedoms” (i.e. to arranging the argumentation process in such a way that “everyone has an equal opportunity to make contributions”), to “absence of contingent external constraints” (i.e. to arranging argumentation in such a way that “the yes/no positions of participants on criticizable validity claims” will turn out to be “motivated only by the power of cogent reasons to convince”, not to be motivated by coercion or other extraneous, irrelevant, forces), and to the formation of “uncompelled consensus” (Between Naturalism and Religion, 82; Toward a Rational Society: Student Protest, Science, and Politics, 7). The rhetorical commitments taken on by participants in argumentation, in short, involve commitments to maximum inclusivity, equal participatory rights, freedom from coercion, and to the reformation of disturbed social consensuses. The reason that members of a rationalized lifeworld accept the rhetorical commitments of argumentation is that they understand argumentation to be a process which is supposed to enable the making of a reasoned determination about whether or not disputed claims are worthy of assent. In Habermas’s words, argumentation is supposed to “… allow all relevant information and explanations to be brought up and weighed so that the stance participants take can be 128 intrinsically motivated solely by the revisionary power of free-floating reasons.” (Truth and Justification, 106-107). But, because we can only confidently make a determination about whether or not a disputed validity claim deserves assent if we (i) consider the widest range of possible arguments and counter-arguments that could be given in favor of, or against, the claim, and (ii) open ourselves up to critique from the broadest array of possible objectors (because otherwise we might unknowingly fall into mistakes or our process of reflection might be incomplete because some important potential objection or alternative was missed), subjects must accept the rhetorical commitments outlined above, because they (by allowing the broadest range of subjects to participate under conditions of equality and with the maximum shared set of conversational rights) ensure that the widest range of potential alternatives or counter-arguments will be considered in the process of argumentation, such that we can consider the outcome of that process to be the best available indication of whether or not the claim with which it is concerned should really be understood as true, correct, or truthful. (3) Having characterized argumentation as a linguistic practice which involves participants in certain normative commitments, and having shown why members of the lifeworld can be expected to see argumentation as the form of dispute resolution which is appropriate given the sort of validity claims which are raised by speech acts, we should also pay attention to a final argument that Habermas gives in favor of his claim that communication oriented to mutual understanding (including argumentation as the form of dispute resolution) can be expected to be the knowledge and action generating practice which is predominant in the lifeworld. This final argument points out that members of the lifeworld who habitually relied upon attempts to manipulate others into accepting their validity claims (in Habermas’s language, this is latently strategic action, described below), or who regularly issued threats or otherwise 129 engaged in coercion to attempt to get others to accept their validity claims, would not be able to maintain the trust of their fellow community members. They would, instead, generally lose the esteem of the members of their community. But since this would be both psychologically painful and would bring with it a whole host of negative practical consequences, members of the lifeworld are incentivized to rely on communication oriented to mutual understanding, including a commitment to using argumentation (as just described) to resolve disputes, when they attempt to coordinate their actions with one another or arrive at shared situation-definitions. This is another reason that Habermas believes he is justified in making the claim that communication oriented to mutual understanding should be understood as the rationality of the rationalized lifeworld. 2.3.1.1 Conclusion of (c) Although he once characterized these in terms of an “ideal speech situation”, Habermas now represents the set of commitments that members of the lifeworld believe that participants in argumentation must take on in terms of “counter-factual idealizations” (The Liberating Power of Symbols, 98). These are, in short, presuppositions about the conditions which must obtain in order for argumentation to count as a practice which is appropriate for resolving disputes on the basis of shared reasons. These ideals are counter-factual (in the sense that they are never actually fully realized), but nevertheless do impact the behavior of individuals (insofar as participants who attempt to engage one another in argumentation do actually endorse them and take on a commitment to them, and insofar as this commitment to these ideals, though they are never fully realized, actually does regulate the way that individuals engage in communication with one another, and, finally, insofar as participants in conversation must believe that these ideals are at 130 least being approximately realized in order to participate in communication oriented to mutual understanding at all). Habermas claims that his reconstruction of the process of argumentation functions to make explicit certain centrally important characteristics of the practice of knowledge and action generation which has become dominant in modern societies. This is because, as we have already seen, Habermas does not believe that there is any plausible alternative to regularly engaging in communication (and, with it, argumentation) for members of the lifeworld (The Liberating Power of Symbols, 99). For this reason, we can say that Habermas holds that moderns are practically committed (in the sense of a practically necessary commitment, not a commitment to an ethical form of life) to engaging in argumentation when their shared lifeworld background breaks down such that they become aware that they possess divergent interpretations of the world or that they disagree about which norms ought to regulate social interactions. And this means that moderns are practically committed to engaging in a form of dispute resolution which is structured by the three sets of commitments (dialectical, logical, and rhetorical) just outlined. Habermas’s reconstruction of this process leads him to conclude, against Adorno and Horkheimer, that modern subjects can be expected to retain a commitment to normative analysis and moral consciousness. Habermas reasons that, because moderns are practically committed to structuring their communicative engagements with one another in accordance with the counter- factual idealizations which they accept as definitive of an appropriate form of argumentation, they can replace the normative substance (previously anchored in religious traditions) which Weber believed was lost in the transition to modernity with a basic normative orientation to justice and solidarity which is grounded upon a commitment to relying on the process of argumentation to resolve disputes. Along these lines, Habermas tells us that, 131 “…in the symmetry conditions and reciprocity expectations of everyday speech oriented to reaching understanding, there already exist in nuce the basic notions of equal treatment and general welfare on which all morality turns, even in premodern societies. The ideas of justice and solidarity are already implicit in the idealizing presuppositions of communicative action, above all in the reciprocal recognition of persons capable of orienting their actions to validity claims.” (Justification and Application, 50). The basic idea here (which Habermas has sometimes failed to make completely explicit) is that, because moderns are practically committed to resolving disputes which arise in the lifeworld through argumentation99, and because argumentation requires that subjects treat one another as equals and extend to one another basic respect, moderns must be committed to structuring their overall form of life in such a way that the conditions necessary in order for subjects to see one another as worthy of respect and equal standing are not violated. That is to say, moderns must understand themselves to be committed to structuring their shared form of life in such a way that subjects could plausibly see one another as having equal worth and dignity. Otherwise something to which moderns are practically committed, the possibility of entering into argumentation when disputes about the shared lifeworld background arise, would be rendered impossible. Thus, we can say that, though the commitment to relying on argumentation to resolve disputes is not, itself, an ethical commitment (on Habermas’s account), the practical commitment to relying on argumentation does ground some basic ethical commitments (or at 99 Habermas expresses this, when it comes to disputes about practical matters, in terms of a principle, (D), which holds that: “Just those action norms are valid to which all possibly affected persons could agree as participants in rational discourses.” [Between Facts and Norms, 107]. Habermas says, about (D): “I assume that the principle itself reflects those symmetrical relations of recognition built into communicatively structured forms of life in general.” (Between Facts and Norms, 109). That is, a commitment to the normative principle, (D), is based on a practical commitment to modern rationality, which tells us that communication processes should be structured, as far as possible, in accordance with the norms of the ideal speech situation. 132 least pushes members of the lifeworld toward a commitment to the normative project of securing a form of life in which the equal worth and dignity of all members of the communication community is possible). (d) Having characterized Habermas’s reconstruction of communication oriented to mutual understanding and given some impression of the three main reasons that Habermas believes that this form of communication is, and will remain, the predominant form of communicative practice in rationalized societies (such that we can refer to it as the form of lifeworld rationality in rationalized societies), we should also briefly review Habermas’s account of other forms of communication. Habermas identifies three ways that modern subjects sometimes coordinate social action through different forms of communication. These include manifestly strategic communication, latently strategic communication, or systematically distorted communication (On the Pragmatics of Communication, 171)100. In manifestly strategic communication, subjects openly seek to influence one another’s behavior not through an attempt to arrive at mutual understanding about which norms ought to guide behavior in a given situation, but through either proposing incentives or disincentives for the performance of particular actions or the acceptance or rejection of particular beliefs. To take a commonplace example, a parent might offer a child a reward for the achievement of good grades. In this case, the child is being motivated to study harder or to pay attention in class by the prospect of the desired reward, not through coming, through a process of 100 See Jari L. Niemi’s Jürgen Habermas’s Theory of Communicative Rationality: The Foundational Distinction Between Communicative and Strategic Action (p. 518-520) for a succinct and accessible analysis of the first two of these alternatives to communication oriented to mutual understanding. Niemi correctly points out that what is definitive of strategic forms of communication is the intention of the actor(s) who decide to communicate this way: “The goal of an agent who acts strategically is a successful intervention in the objective world. Whether the intended action is successful depends on the agent’s ability to influence the addressee either through declarations of force or through deceit. In both cases language shrinks to a medium of information.” (519). 133 argumentation, to the reasoned recognition that it is normatively right, or practically important, to study and achieve high marks. Subjects who engage in manifestly strategic communication, for short, openly attempt to pressure, or incentivize, one another into accepting certain beliefs or engaging in certain forms of action. In latently strategic action, on the other hand, a participant in communication willfully attempts to influence another participant’s actions or beliefs, but does not do so openly. Instead, the attempt to influence is disguised as an attempt to engage communicatively in the pursuit of mutual understanding. Here Ego attempts to make it seem as though he/she has good reasons to give to Alter in favor of some validity claim, but the reasons are either not truly convincing (and Ego knows this, but still attempts to use them to compel Alter) or Ego does not actually sincerely accept them. He/she only makes use of them in order to try to influence the actions that Alter will ultimately take or the beliefs that he/she will ultimately affirm. We might think, for example, of the participant in a political debate who attempts to gain affirmation for his/her positions from the audience by willfully providing misleading (or even provably false) reasons in favor of those positions. Finally, in systematically distorted communication, “… at least one of the participants is deceiving himself or herself regarding the fact that he or she is actually behaving strategically, while he or she has only apparently adopted an attitude orientated to reaching understanding…” (Reply to my Critics, 264). Typically, in instances of systematically distorted communication, a participant in a communicative exchange cannot allow some belief or commitment to be called into question because the possibility that the belief/commitment might prove not to be rationally redeemable represents a threat to that participant’s psychological integrity. In that case, the participant may continuously attempt to suppress the possibility of critical investigation of the 134 claim from arising while simultaneously attempting to give the impression that he/she is behaving rationally (i.e. would be willing to take up and defend the claim in argumentation). Habermas ultimately holds that, though subjects often engage in strategic communication (whether open, latent, or systematically distorted), the primary form of communication operating in the lifeworld, the kind of communication to which subjects are ultimately committed (because they see it as the appropriate way to determine what is actually true or right), the form of communication which is the default mode for subjects in rationalized lifeworlds, is communication oriented toward mutual understanding (outlined in b-c). Since my purpose in undertaking this review of Habermas’s social theory is not to reach a judgement about whether or not it is ultimately correct, but instead to set up an analysis of Habermas’s defense of strong judicial review, I will not, at this point, comment further on whether or not Habermas’s claim that communication oriented to mutual understanding (i.e. communication which makes use of the process of argumentation that I have unpacked above) is the primary communicative practice in the rationalized lifeworld is defensible. Ultimately, as we have seen, this is an empirical claim which stands or falls on the basis of empirical investigations. We will see, in our review of Amy Allen’s critique of Habermas’s theory (in 2.7.2), that a quite serious criticism of Habermas’s approach is that it appears to conceptualize social action through rose-colored glasses (i.e. that Habermas does not fully appreciate how coercion, violence, or suppressed motivations play a role in lifeworld communication and that, because of this, he ends up developing an account of the processes by which social action is generated which depicts them as far more benevolent than they actually are). Whether or not this critique is ultimately compelling will not be able to be decided at that point, either (though I will 135 give some reasons for thinking that Allen’s criticism somewhat caricatures Habermas’s account or at least could be incorporated into a revised version of it). 2.3.2 Habermas’s Alternative to Weber’s Theory of Social Action and his Alternative Diagnosis of the Times Now that we have reviewed Habermas’s theory of modern rationality, we are in a position to see how he makes use of this theory to generate an alternative to Weber’s “diagnosis of the times”. As we have already seen, Habermas joins Weber in accepting that modern societies are functionally differentiated. This means that he can only rely upon his theory of lifeworld rationality to explain the way in which social action is organized in the lifeworld. When social systems take the lead in organizing social action, different organizing principles come into play. In that case, communication oriented toward mutual understanding no longer functions as the primary means by which social action is organized, and the social theorist needs to adopt an objectivating perspective101. This leads to the problem we have already reviewed above. That is, in order for his social theory to be useful for us, Habermas must give us some way to think through when the lifeworld takes the lead in organizing social action and when, conversely, social sub-systems do We have already seen how Weber attempted to resolve this problem. He tried to respond to it by arguing that modern subjects will increasingly find it difficult to ground basic value 101 Habermas’s commitment to the functional differentiation thesis is apparent in his provisional definition of modern societies, offered in the second volume of the Theory of Communicative Action: “... societies are systematically stabilized complexes of action of socially integrated groups.” (Theory of Communicative Action, vol. II, 152). By this formula he means to convey that, in modern societies, social action is coordinated through communication in the lifeworld (this is the meaning of ‘social integration’), but that this form of society must be stabilized by social systems (which coordinate action through purposive rationality) such that both communication and systems-logic work to organize social action in modern societies. And this means that we must face the problem, originally identified by Weber, of finding a way to combine subjectivistic and objectivistic forms of understanding if we want to understand social life in modern societies. 136 claims and will tend to become instrumentally rational calculators in both the lifeworld and when their actions are organized by social sub-systems. This means that social theory can increasingly rely upon the objectivating perspective alone in order to explain social action. Adorno and Horkheimer take Weber’s analysis as their point of departure. They therefore tend to neglect or disparage the self-understanding of modern subjects. They tend to theorize modern subjects, in Habermas’s terms, as “cultural dopes” – depersonalized and programmed subjects who act for reasons that they increasingly neither can, nor want, to understand (Between Facts and Norms, 377). Habermas’s alternative to Weber’s account of lifeworld rationality suggests a different answer to the question. If Habermas is right to claim that modern subjects are committed, through their practical commitment to engaging in communication oriented toward the achievement of mutual understanding, to a certain basic normative orientation, then we cannot join with Adorno and Horkheimer in expecting moderns to tend to become primarily self- interested, instrumentally-rational, calculators. Instead, moderns must be expected to maintain their moral consciousness and to subject the social arrangements which govern their lives to normative critique. This means that both subjectivistic and objectivistic methodologies will be required for the construction of a theory of social action in modern societies. Therefore, Habermas must provide us with some way to think through when one or the other method of explaining social action is appropriate. Habermas’s ultimate conclusion about this issue is that there is a historically dynamic relationship between lifeworld rationality and the instrumentally rational action orientations imposed on social action by social subsystems. The lifeworld can impact the way in which social sub-systems organize social action through acts of political participation which, through the 137 medium of law, function to “reprogram” social sub-systems. In this case the dominant organizational principle would be lifeworld rationality. But social sub-systems can also “react” upon the lifeworld and take over the organization of elements of social life which were previously within the lifeworld’s domain102. In this case the logic of social systems would have to be understood as the main organizing principle. This means that social theorists must undertake an empirical analysis of the political situation in the societies which they seek to understand in order to determine which of the two organizing principles – lifeworld rationality or system rationality – is dominant at a given time (and in which domains). Ultimately this is an empirical question103. However, given that social theorists are themselves members of the lifeworld, and thereby have taken on a practical commitment to the idea that, when practical disputes about the organization of social action arise, they should be resolved through processes of communication that aim at the development of consensus and mutual understanding, they cannot be neutral about the prospect of an “administered society” in which social systems would become dominant vis-à-vis the lifeworld and function to program the lifeworld. They should instead be expected to view this as a political possibility toward which they must be opposed because it violates their practical commitment to relying on communication to resolve disputes and organize their interactions within the lifeworld. Habermas’s takes his social theory’s ability to explain how critical theory can, in this way, “secure its own normative foundations” (through an analysis of “the concept of communicative reason”) to indicate that it marks an advance over 102 Habermas refers to this latter possibility with the phrase “colonization of the lifeworld by systems”. 103 In Habermas’s own words: “The question of which side [systems or lifeworld] imposes limitations on whose imperatives, and to what extent, must be treated as an empirical one that cannot be decided beforehand on the analytical level in favor of the systems… the colonization of the lifeworld and democratic constraints on the dynamics of systems that remain unresponsive to the “externalities” they produce represent two equally legitimate analytic perspectives.” (Justification and Application, 170-171). 138 alternative approaches (like Adorno and Horkheimer’s) which appear to have difficulty grounding normative criteria for social critique [Habermas: Autonomy and Solidarity, 90]. To repeat, Habermas’s answer to questions about the primacy of lifeworld or system is to point out that the relative strength of these competing principles of social organization varies historically (according, to no small extent, to the competing political efforts of proponents of lifeworld rationality and proponents of greater system autonomy). Thus, Habermas’s social theory takes on an urgent tone. For Habermas, the only thing that can preserve the possibility of communicative control over social life is political participation in the public sphere. Thus, Habermas ends Between Facts and Norms, with the following statement: “Once again, in the final analysis, the only thing that serves as a “palladium of liberty” against the growth of independent, illegitimate power is a suspicious, mobile, alert, and informed public sphere that affects the parliamentary complex and secures the sources from which legitimate law can arise.” (Between Facts and Norms, 442). 2.4 Habermas’s Theory of Political Legitimation Now, having given a first statement of Habermas’s theory of modern rationality, and the theory of social action which he builds upon it, I can finally turn to unpacking the standards which Habermas believes that modern social institutions must meet in order to be thought to be legitimate, or normatively acceptable, by members of the public (in what follows I will treat ‘legitimacy’ as shorthand for ‘normatively acceptable’). In this chapter I will express these standards under the heading of the legitimacy burden faced by modern social institutions (2.4.1). Habermas believes that this burden applies equally to the legal system as a whole and to its component parts. Once I have explained this, I will then give a quick explanation of how 139 Habermas proposes that constitutional-democratic legal systems are able to meet this legitimation burden (2.4.2). I take up this question in more detail in the first part of chapter 3, where I also reconstruct Habermas’s legitimation of strong judicial review. 2.4.1 Habermas’s Account of the Legitimacy Burden Faced by Modern Social Institutions Habermas is committed to the idea that societies can only avoid entering into crisis states if, over the long term, the social subsystems and political-institutional arrangements which they make use of are generally found to be legitimate (i.e. to possess the quality of legitimacy) by the members of the lifeworld (Between Naturalism and Religion, 79). To be found to possess the quality of legitimacy, on Habermas’s account, means to be found to be “right and just” and to therefore be taken to be worthy of “recognition” by members of the public (Communication and the Evolution of Society, 178). Because modern subjects inhabit a rationalized lifeworld, and can therefore be expected to have taken on a practical commitment to resolving disputes through argumentation, Habermas believes that we can, through developing a reconstruction of the rationality of the lifeworld, gain insight into the characteristics which contemporary political institutions must possess if they are to gain legitimacy in the eyes of the public. Habermas’s desire to understand what these legitimacy-conferring characteristics would be is one of the main reasons which leads Habermas to actually undertake the reconstruction of lifeworld rationality which I have just finished summarizing. Habermas uses ‘legitimation’ to refer to the attempt to “make good” on the “claim to legitimacy” which is implicitly raised by every political order (Communication and the Evolution of Society, 182-183). Legitimations, then, are attempts to show why something (e.g. the constitutional-democratic legal system) ought to be recognized as “right and just” by members of the lifeworld. In Habermas’s own words, “[l]egitimations serve to … show how and 140 why existing (or recommended) institutions are fit to employ political power…” (Communication and the Evolution of Society, 182-183). Habermas devotes himself to developing a legitimation of constitutional-democratic legal systems in his main work dealing with political philosophy, Between Facts and Norms. Now, as we have already seen, for Habermas, the process of rationalization has invalidated the religious legitimations which previously worked to justify political orders. As a part of this process, members of the lifeworld have internalized a practical commitment to accepting as true or correct only those claims that can be redeemed communicatively (in an appropriately structured argumentation process). They have also taken on a commitment to acting in accordance with those claims that can be redeemed in argumentation. This means that modern political institutions must shoulder a particularly heavy legitimation burden. In short, they must possess characteristics which enable their proponents to develop legitimations of them that could gain widespread support in processes of public argumentation if they (the institutions in question) are to avoid being seen as unjustifiable attempts to impose the will of a particular group upon the social whole such that their directives should either be ignored or resisted104. 2.4.2 Habermas’s Description of the way in which Constitutional-Democratic Legal Systems could be Legitimated 104 Habermas makes this point in a discussion of the way in which the legitimation burden is dealt with by constitutional democratic political orders. “In the secular state, government must in any case be put on a nonreligious footing. The democratic constitution must fill the gap in legitimation opened up by a secularization that deprives the state of religious legitimation. The practice of constitution-making generates those basic rights that free and equal citizens must accord one another if they wish to regulate their coexistence reasonably and autonomously by means of positive law. The democratic procedure owes its legitimizing power to two components: first, the equal political participation of all citizens, which ensures that the addressees of the law can also understand themselves to be the authors of these laws; and, second, the epistemic dimension of a deliberation that grounds the presumption of rationally acceptable outcomes.” (Between Naturalism and Religion, 121; emphasis mine. Also see, A Berlin Republic, 170-171) 141 In order to better understand the way that Habermas thinks about the legitimation burden which legal systems must meet in modern societies, we need to (a) understand some basic characteristics of modern legal systems and the meaning and reconstructive justification of the discourse principle (the basic normative principle which Habermas believes that moderns are committed to by virtue of their practical commitment to resolving disputes through argumentation). Once we have attained an understanding of these things, we can (b) give a characterization of the sort of legitimation of political institutions (or the legal system as a whole) which Habermas believes that modern subjects could be expected to find to be convincing. (a) For Habermas, a chief characteristic of modern societies is the modern legal system. By ‘modern legal system’ Habermas has in mind the collection of institutions which work to produce, interpret, and enforce the legal code in modern societies. Historically speaking, the development of the legal system was functionally necessary for the development of the capitalist mode of production (Habermas: Autonomy and Solidarity, 110-111). It enabled the capitalist production processes to get going, and worked to stabilize them, by generating a new form of self-understanding on the part of members of the lifeworld. Specifically, legal systems gave subjects “the status of [the] legal person” (The Inclusion of the Other, 260-261). Legal persons are “bearers of individual rights” (The Inclusion of the Other, 260-261). Once subjects could think of themselves as rights bearers standing over against one another in civil society, capitalist relations of production could develop (insofar as capitalism, by definition, involves the existence of a set of formally free laborers who possess a limited set of rights and who must make their way in the world by contracting with one another, and with the owners of the means of production, for goods and services under certain rules which are legally promulgated). The legal 142 system also made it possible for members of the lifeworld to give up the commitment to organizing all lifeworld interactions through communication oriented toward mutual understanding. By both claiming a monopoly on the power to punish and committing to using that power only to ensure that subjects follow the law, the legal system functionally authorizes subjects to “adopt a strategic attitude”, instead of a communicative stance, in their lifeworld interactions with one another (Theory of Communicative Action, vol. II, 154). As I have already said, on Habermas’s account, no society which attempted to resolve all lifeworld disagreements through communication processes would be able to meet basic functional requirements for social reproduction. In Habermas’s own words: “Under the modern conditions of complex societies… unfettered communicative action can neither unload nor seriously bear the burden of social integration falling to it.” (Between Facts and Norms, 37). The reason why is that communication oriented to mutual understanding (including the process of argumentation described above) is too cumbersome, too time-consuming, to serve as the sole source of social integration for societies like our own – in which myriad conflicts must be resolved on a daily basis in order to secure material necessities (among other necessary things). From a functional perspective, then, the development of the legal system can be understood as providing a solution to the problem of coordinating social action for modern societies (Between Facts and Norms, 114-118). Again, in Habermas’s own words, “Modern law steps in to fill the functional gaps in social orders whose integrative capacities are overtaxed.” (Between Facts and Norms, 42). By securing for each person a set of basic rights (which are not subject to everyday challenge or revision), the legal system “fixes the limits within which a subject is entitled to freely exercise her will” and thereby works to relieve members of the lifeworld of the 143 requirement that they enter into communication processes each time a dispute arises in the lifeworld (Between Facts and Norms, 82). Subjects can “drop out of communicative action” (i.e. decide not to engage in argumentation when disputes arise) and simply determine how to respond to lifeworld disputes, instead, on the basis of their private preferences and an understanding of their basic rights105 (Between Facts and Norms, 120). The legal system therefore can be understood as providing a much less demanding alternative to the communicative process of dispute resolution. Relatively quick determinations can be made about which side of a dispute is correct through appeal to enacted laws or basic rights. And institutionalized adjudication processes can come into play when the meaning of the law is not sufficiently clear. All this said, Habermas recognizes that the fact that modern societies cannot (functionally speaking) do without legal systems does not, from the participant perspective of members of the lifeworld, constitute a legitimation of those systems. This leads him to ask the following general question: Under what conditions should we expect modern subjects to accept a legal system as legitimate? That is, what is it about a legal system that can make it appear to be “right and just” in the eyes of modern subjects? Or, to put it more pointedly, how can moderns accept any legal system as legitimate when they have already taken on, through socialization into a rationalized lifeworld, a practical commitment to communication and argumentation as the practices by which disputes should generally (though not necessarily always) be resolved and collective action generated? 105 In Habermas’s own words: “Basic rights are actionable individual rights whose meaning at least in part is to free legal persons in a carefully circumscribed manner from the binding force of moral commands by creating domains of legal conduct in which actors can act in accordance with their own preferences.” (The Inclusion of the Other, 191) 144 Habermas’s answer to this question is grounded upon his reconstruction of lifeworld rationality. As we have already seen, for Habermas, a commitment to argumentation as the process by which disputed validity claims ought to be resolved yields a commitment to several basic normative principles. The most fundamental of these, the one which (according to Habermas) all others must ultimately be understood as grounded upon, is the “discourse principle”, which Habermas abbreviates as “(D)”. (D) says: “Just those action norms are valid to which all possibly affected persons could agree as participants in rational discourses.” (Between Facts and Norms, 107). This is to say that (D) holds that the only normative claims that members of the lifeworld can consider to be valid are those claims which could gain consensus acceptance in a process of argumentation which approximately realizes the pragmatic presuppositions of argumentation (i.e. the dialectical, logical, and rhetorical commitments outlined above). (b) Given his theory of modern rationality, it is not surprising that Habermas holds that modern subjects must accept (D). Indeed, (D) is simply an expression of the commitment to resolving practical disputes (i.e. disputes about the way that collective action should be organized) through argumentation, formulated as a principle106. What is less obvious, but equally important, is that, because, as (D) reminds us, members of the lifeworld are committed to 106 Habermas holds that (D) can be further specified (i.e. can be unpacked such that it yields a further principle which can be used to evaluate normative claims) according to the type of normative claim which is the topic of argumentation. For instance, when disputes arise about moral questions (i.e. questions about how to justly regulate interpersonal interactions in the lifeworld), (D) can be specified in the form of the “principle of universalization” or “(U)”. (U) says: “Every valid norm must satisfy the condition that the consequences and side effects its general observance can be anticipated to have for the satisfaction of the interests of each could be freely accepted by all affected (and be preferred to those of known alternative possibilities for regulation).” (Justification and Application, 32). (U) stands as a further specification of (D) insofar as it combines a pre-theoretic understanding of the meaning of moral questions with a commitment to resolving such questions through argumentation. In Habermas’s words, (U) represents the principle that modern subjects have to adopt given their commitment to “the content of transcendentally constraining presuppositions of argumentation” and “the attendant knowledge of what it means to justify practical [moral] norms.” (Between Naturalism and Religion, 86-88). See Juvénal Ndayambaje’s What Goes Wrong in Habermas’s Pragmatic Justification of (U) for a critical comment on Habermas’s argument that (U) can be “derived from the pragmatic presuppositions of argumentation in general”. 145 resolving practical disputes through argumentation, they must also accept processes of argumentation themselves as legitimate, that is, as “right and just” (or at least as unavoidable, and therefore not things that could be considered illegitimate). And this means that they must, furthermore, accept social arrangements which enable argumentation processes to take place (so long as those arrangements do not also produce normatively undesirable consequences) to be legitimate (on the principle that willing an end implies willing the means to that end as well). This way of thinking suggests one legitimation of the legal system which members of the lifeworld could be expected to find convincing. If a legal system were to function in such a way that it could be understood as enabling members of society to participate in an ongoing process of argumentation (which works to resolved disputes about what the laws should be like and to define the meaning of basic rights), then it could be understood as legitimate by modern subjects because it would have to be understood as a means to an end to which moderns are committed (i.e. a means to the end of resolving disputes about the normative regulation of social interactions through argumentation). Thus, Habermas tells us that legal systems can gain legitimacy in the eyes of modern subjects if they possess characteristics which can be understood to work to allow argumentation processes, which in turn work to produce laws and to secure basic rights, to take place107. Habermas claims that constitutional democratic legal systems do possess these characteristics and takes the reconstructive route just suggested in developing his legitimation of 107 Habermas’s decision to look for the legitimacy of constitutional democracy in the decision-making procedures it establishes places him in the proceduralist camp of the deliberative democracy school of political philosophy. The main alternative camp sees democracy as legitimate because the procedures which it uses are likely, under current circumstances, to yield decisions which are correct (whether in a moral sense or in some other sense). Rainer Forst identifies both liberal and communitarian accounts (associated with Rawls, Sandel, and Walzer; and Taylor and Alasdair MacIntyre, respectively) of deliberative democracy as instrumentalist in his article The Rule of Reasons. Three Models of Deliberative Democracy. For further discussion see J. Glendhill’s article, The Ideal and Reality of Epistemic Proceduralism. For a compelling instrumentalist account of deliberative democracy, see Amy Gutman and Dennis Thompson’s Democracy and Disagreement. The main difference between proceduralist and instrumentalist accounts of deliberative democracy is that the former, but not the latter, sees the procedures of deliberative democracy as normatively justifiable on other than instrumentalist grounds. 146 the constitutional democratic legal system. I turn now to explaining what it is about constitutional democratic legal systems that, in Habermas’s eyes, allows them to be understood as working to make argumentation possible (and its outcome, communicatively processed public opinion, legally efficacious). 2.5 Habermas’s Concept of Constitutional Democracy and His Legitimation of Constitutional Democratic Legal Systems In this section I first (very briefly) say a few words about how Habermas conceptualizes the basic political institutions of constitutional democratic societies (2.5.1). I then provide an initial explanation of the way that Habermas reconstructs the constitutional democratic legal system in order to make clear the reasons that members of the lifeworld should be expected to see that constitutional-democratic system as legitimate (2.5.2). 2.5.1 Habermas’s Account of Constitutional Democracy To begin with, I will say something very general about what Habermas has in mind when he talks about constitutional democratic societies. In short, when Habermas talks about constitutional democratic societies, he has in mind societies, like the United States and the German Federal Republic (the two societies which Habermas most frequently references in his work), which make use of a particular set of political institutions and processes to produce, interpret, and enforce laws. Thus, he means to refer to societies in which, among other things (1) there is a division of power (drawn differently in different legal systems) between legislative, executive, and judicial branches of government, (2) citizens are granted the familiar set of basic, constitutionally embedded, rights, (3) processes of collective democratic decision making serve to elect representatives and sometimes to directly enact laws, and (4) there is an independent, and relatively free, press and a network of autonomous informal public spheres in which a wide 147 range of issues can be freely taken up, in critical and inclusive debates, by members of the public108. 2.5.2 Habermas’s Legitimation of Constitutional Democracy Habermas’s theoretical reconstruction of the constitutional democratic legal system, which he calls Kantian Republicanism, is supposed to provide a legitimation for the system which would be convincing from the perspective of a member of the lifeworld by uncovering those elements of the system which render it worthy of respect (The Dialectics of Secularization, 24). As has already been said, the characteristic of the system which Habermas believes can render it legitimate in this way is that it ties the production of law to inclusive argumentation processes109. In brief, Habermas claims that the basic rights which constitutional-democratic legal systems reserve for their citizens, along with the democratic procedures that they use to produce law, function to ensure that the laws produced in a constitutional democracy can be understood as the products of argumentation. And, given the practical commitment to argumentation taken on through by modern subjects through socialization into a rationalized lifeworld, this means that both the laws produced by the constitutional democratic legal system and the constitutional democratic legal system itself will have to be seen as legitimate (because 108 This description is, of course, highly impressionistic and overly simplistic. However, I think it is sufficient for the purposes of the argument being developed here. Those interested in the more minute points of Habermas’s account can find a fuller articulation of the way that Habermas conceptualizes constitutional democratic societies and legal systems in the first three chapters of Between Facts and Norms. I repeat that, in a work such as this, it is appropriate to simply say that, in talking about constitutional democratic societies, Habermas is basically thinking about the legal institutions and liberal-democratic political culture of societies like the United States and the German Federal Republic. I will provide a more developed account of the way that Habermas thinks of societies like these in chapter 3. 109 Habermas uses the phrase “communicative power” to describe the force which discursive argumentation processes assume in constitutional democratic societies. In short, Habermas believes that members of the lifeworld will see constitutional democratic legal systems as legitimate because the institutions and rights which characterize such systems work together to enable processes of large-scale argumentation about political disputes to take place and to have an effect on the laws which are produced by the system. See Patrick O’Mahony’s Habermas and Communicative Power for an account of the way that Habermas believes that large scale argumentation can become legally effective through the institutional arrangements of the constitutional democratic legal system. Again, I explain this at some length presently (in chapter 3). 148 these are, respectively, the outcome of argumentation processes and necessary conditions for argumentation processes to take place). We can best make sense of Habermas’s reconstruction of the constitutional democratic legal system if we think of it as making explicit two broad processes which the system’s elements enable. First, constitutional democratic legal systems enable members of society to engage in argumentation with one another (about how the law should be) in what Habermas calls the “political public sphere”. That is to say, under constitutional democratic legal systems, citizens may publicly raise and use reasons to attempt to redeem claims about how the law should regulate social life (and many other topics besides this). The constitutional rights which citizens possess function to ensure that the process of public opinion formation which thereby takes place (i.e. the process of argumentation which produces shared beliefs and commitments regarding how society should function) is organized in such a way that it can be understood as (at least roughly) realizing a commitment to the presuppositions of argumentation (Gautam Bhatia, 345-346)110. By making explicit the way that constitutional rights enable public discourse to be structured in accordance with the presuppositions of argumentation, Habermas believes that he has provided an explanation for how constitutional democracy enables members of society to 110 My account of the way that large scale discourse might take place in the public sphere is, of course, highly compressed. Habermas’s own account of constitutional rights and the public sphere is much more sophisticated and takes into account the multitude of potential obstacles to the public sphere’s ability to function in the optimistic way I have sketched out here. Because all that I am doing in this section is giving an impressionistic account of the characteristics which Habermas believes work to render constitutional democratic legal systems legitimate in the eyes of the members of the lifeworld, I cannot go into the numerous complexities associated with this topic area. Habermas describes the system of rights which enable participation in the public sphere to be understood as an ongoing process of large-scale rational discourse in Between Facts and Norms. There he also discusses several significant obstacles to the public sphere functioning this way (especially in chapter 8). See also James Bohman’s Public Communication and the Epistemic Value of Diversity: Deliberation and Legitimation in Media Societies. I take this up in detail in chapter 3. 149 engage in what we might call large-scale rational deliberation111 which generates shared beliefs and commitments regarding how the law should work to regulate social life. To reiterate, on Habermas’s account, the constitutional rights which are normally a part of a constitutional democratic legal system enable members of a society to engage in reasoned debate with one another which generates public opinion. The legal system must be seen, then “as institutionalizing rational discussion on matters of public concern” (Feteris, 146). Thus, Habermas has only to show how the public opinion which is produced through this process can be expected to become politically effective (such that the laws which are produced by the legal system can be said to be, if not directly determined by the public opinion which is produced through this process, then at least impacted by it) to show why the constitutional democratic legal system itself can be expected to be taken to be worthy of respect by moderns. Toward this end, Habermas reconstructs liberal democratic political institutions in order to show that they are structured in such a way that public opinion (produced through the processes of large-scale rational deliberation) will exert a strong influence on the content of the laws produced by the constitutional democratic legal system112. Habermas sees, in democratically elected legislatures and democratically elected executives, political institutions which are structured in such a way that political officials will be incentivized to arrive at 111 This term is my own, though it is similar to formulations used by other interpreters of Habermas. Tony Couture, for instance, refers to “practices of rational public debate” (Habermas, Values, and the Rational Internal Structure of Communication, 410). 112 My way of framing Habermas’s claim may make it sound as though he theorizes the public sphere as a formal forum in which discussions are always explicitly directed at resolving outstanding political questions. This is an over-generalization which I have made simply for the sake of convenience. In actuality, Habermas thinks of the public sphere as an informal network of diverse and anarchic publics which spring up around various questions. The public sphere can be understood as functioning like an “alarm system” which filters different arguments in accordance with the basic principles of lifeworld rationality and warns public officials about problems which members of the lifeworld are encountering in their daily lives. See Thomas Hove’s The Filter, the Alarm System, and the Sounding Board: Critical and Warning Functions of the Public Sphere for a more complete account of the way that the public sphere relates to the legal system in Habermas’s thinking. 150 decisions which accord with the public opinion that is generated through participation in the public sphere113. The requirement that political officials stand for re-election, for instance, functions as an incentive for officials to determine what public opinion is and to shape law in accordance with it (Between Facts and Norms, 185-186). This dynamic, and the ability of the general public to directly pass laws in some constitutional democracies, works to ensure that public opinion can become politically effective114. Thus, because constitutional rights ensure that public opinion will be an expression of the outcome of large-scale rational debate, and because liberal democratic political institutions ensure that the content of law will be shaped by public opinion, Habermas can conclude that the constitutional democratic legal system itself will be understood by moderns as deserving of respect115. Again, this is ultimately because, in that case, 113 Several critics of Habermas’s legal philosophy deny that he has actually shown that the political institutions of the constitutional democratic legal state will ensure that the outcome of large-scale rational deliberation works to influence the legal system. Stephen Gondrick, in his article Re-Discovering Radical Democracy in Habermas’s Between Facts and Norms, identifies William Scheuerman and James Bohman as two critics who forward compelling objections to Habermas along these lines. See Scheuerman’s Between Radicalism and Resignation: Democratic Theory in Habermas’s Between Facts and Norms and Bohman’s Complexity, Pluralism, and the Constitutional State Faktizität und Geltung. 114 Rainer Forst gives a succinct account of the way that the public sphere is supposed to work on Habermas’s model in his The Rule of Reasons. Three Models of Deliberative Democracy: “Its [the public sphere’s] function lies on the input as well as on the output side of democratic decisions: on the input side insofar as in the informal networks of discussion within smaller publics like associations or movements as well as in the public in general reasons are generated which either in a dispersed form or in a stronger form as “communicatively generated power” enter into more formal procedures of deliberation and decision-making and influence these processes. Once these publicly informed and formed reasons have entered the center of decision- making processes by way of passing certain institutional and deliberative “sluices”… such as parliamentary debate and political hearing, the public sphere again has an important role of checking these procedures and critically discussing its output with respect to the question of whether certain reasons have been ignored or inadequately taken into account.” (369). 115 In reconstructing Habermas’s account of the legitimacy basis of the constitutional democratic legal system, I join with María Emilia Barreyro and Jeffrey Flynn in interpreting Habermas as seeing the political public sphere as playing a crucial role in the genesis of “communicative power” which ultimately influences the laws promulgated by the legal system. An alternative reading of Habermas downplays the extent to which the public sphere plays a role in this process. For these proponents of a narrow reading of “communicative power”, the legitimacy of the constitutional democratic legal system is mostly a matter of the social institutions which define constitutional democracy (i.e. this account downplays the importance of the informal and “anarchistic” processes of opinion and will formation which take place in civil society). See Barreyro’s, The purest form of communicative power. A reinterpretation of the key to the legitimacy of norms in Habermas’s model of democracy, Constellations, 2018; 25: 459-473; and see Flynn’s Communicative Power in Habermas’s Theory of Democracy, European Journal of Political Theory. 151 the constitutional-democratic legal system will have to be understood as enabling the widely shared practical commitment to argumentation (the origins of which I have reconstructed above) to be met when disputes arise about the laws. 2.6 Conclusion and First Articulation of Habermas’s Defense of Strong Judicial Review Having now presented an admittedly very cursory summary of Habermas’s complex social theory, and having given some impression of the way in which Habermas uses that theory in developing his legitimation of the constitutional democratic legal system, we have finally arrived at a point from which I can give a first articulation of Habermas’s defense of strong judicial review. In brief, Habermas believes that constitutional courts which exercise strong judicial review, provided that their members understand their role in a particular way (which I will describe below) and have access to a robust legal public sphere (which I described in chapter 3), are capable of ensuring that the public possesses the set of constitutional rights necessary for large-scale rational deliberation to take place. In that case, the use of constitutional courts which engage in strong judicial review would have to be understood as an element of the legal system which does not undermine its legitimacy, because, (1) in order to be legitimate, legal systems must ensure that the citizenry possesses these rights, and because (2) the court would have to be understood to work to ensure that this necessary condition for legitimacy was realized. Shortly (in 3.2), I will challenge the claim that the decision-making procedure of strong judicial review is more likely than majoritarian alternatives to ensure that the public possesses the constitutional rights which are necessary in order for large scale rational deliberation to take place. If this is true, then Habermas’s defense of strong judicial review would have to be understood, at best, as incomplete. He would then have to go beyond showing that strong judicial review can ensure that the public possesses the basic rights necessary for large scale discourse 152 and show, also, that strong judicial review is more likely than majoritarianism to produce this outcome (even under the relatively ideal conditions outlined in chapter 1). However, before I proceed to this critique, I must first give a very close reading of Habermas’s argument that the courts can indeed be expected to function this way (3.1). And, before I turn to this task, I will, in order to complete my account of Habermas’s theory of lifeworld rationality, briefly survey two strong criticisms of Habermas’s social theory which have been raised since the publication of the The Theory of Communicative Action (2.7). 2.7 An Impressionistic Depiction of Two Criticisms of Habermas’s Social Theory The two criticisms which I will now consider come from Richard Rorty and Amy Allen, respectively. One thing that is useful about reviewing the criticisms is that doing so allows us to gain a better understanding of certain of Habermas’s main theoretical commitments. As we will see, Rorty and Allen take issue with one of Habermas’s central theoretical building blocks – his theory of lifeworld rationality. Rorty challenges Habermas’s claim that communication oriented to mutual understanding should be understood as having a nearly universal (i.e. cross-cultural) scope. Whereas Allen challenges Habermas’s claim that the account of lifeworld rationality which he offers correctly reconstructs the predominant form of knowledge and action generation which is relied upon to settle disputes which arise in the lifeworld. 2.7.1 Richard Rorty The first criticism which I will consider comes from Richard Rorty. As I read him, Rorty’s main objection to Habermas is that the theory of rationality which Habermas relies on to explain the way that social action is organized in the lifeworld is flawed insofar as it makes a claim to cross-cultural relevance when it should really, instead, only be understood as a particular form of rationality among others which are “in-circulation” in the lifeworld at any 153 given moment. The significance of Rorty’s objection should be clear from what has already been said above. For, if Rorty is correct that Habermas’s account of rationality is not universal (e.g. if it should be understood as describing the knowledge and action generating practices of only a particular culture or sub-culture within society), then Habermas’s social theory will be significantly weakened insofar as it will not be able to pretend to provide us insights into those cultural groups in which different forms of rationality are predominant. To understand how Rorty attempts to motivate his position, we must first call to mind some of the basics of his fairly well-known historicist account of rationality (1). Once we have done this, we will be in a position to see how Rorty frames his critique of Habermas’s theory (2) and how Habermas responds to his objections (3). What will be made explicit through engaging in this exercise is the importance, for Habermas, of maintaining the claim that his theory of lifeworld rationality has a cross-cultural (virtually universal) relevance. I am hoping that, by bringing this universalistic element of his theory to the forefront, we will be able to see why Habermas does not, as some theorists have, develop a defense of strong judicial review on the grounds that the institution will protect distinct cultural groups. His justification for the institution of strong judicial review, on the other hand, focuses on realizing and maintaining the conditions which are necessary for the members of the public to constitute themselves as a collective, communicating and law-giving, public. (1) In his two main works, Philosophy and the Mirror of Nature and Contingency, Irony, and Solidarity, Richard Rorty contrasts his “historicist” account of reason, which begins from an appreciation of the “contingency of language” (Contingency, Irony, and Solidarity, 67), with (what he takes to be) the traditional conception of the project of Philosophy and its accompanying conception of rationality. Rorty believes that philosophers have traditionally seen 154 Philosophy as the attempt to determine the conditions under which knowledge-claims can be held to be justified (in the sense of a context-transcendent justification)116. This conception of the philosophical project suggests that the philosopher’s role is to determine the nature of rationality. In other words, Rorty believes that, historically speaking, philosophers have generally taken it to be their task to determine which forms of reflection can be counted on to reveal indubitable truths (or to provide us with other forms of knowledge). In contrast to this traditional way of understanding the philosophical project and rationality, Rorty advocates a radically historicist account. What this means is that Rorty conceives of the knowledge and action generating practices being used in the lifeworld as historically contingent, in a constant state of flux, and at least potentially multiple (i.e. Rorty does not believe that all members of society necessarily make use of the same form of rationality, the same knowledge and action generating practices). In coming to this position, Rorty was famously motivated by his reading of several influential philosophers (who he calls, collectively, “ironists). Wittgenstein, Heidegger, and Dewey are the three main representatives of this group that he singles out in Philosophy and the Mirror of Nature. What all of these thinkers tell us, according to Rorty, is that it is a mistake to see rationality in the traditional (roughly Cartesian) way – as a universally shared form of knowledge and action generation, as a form of reflection or set of practices which is fixed either 116 Writing in the introduction to Philosophy and the Mirror of Nature, Rorty describes the dominant self- understanding of professional philosophers in the following way: “Philosophers usually think of their discipline as one which discusses perennial, eternal problems – problems which arise as soon as one reflects. Some of these concern the difference between human beings and other beings, and are crystallized in questions concerning the relation between the mind and the body. Other problems concern the legitimation of claims to know, and are crystallized in questions concerning the “foundations” of knowledge. To discover these foundations is to discover something about the mind, and conversely. Philosophy as a discipline thus sees itself as the attempt to underwrite or debunk claims to knowledge made by science, morality, art, or religion.” (Philosophy and the Mirror of Nature, 3, emphasis mine). 155 by the world (which we use them to know) or by the mind’s synthetic activity (which renders intelligible otherwise raw sensory data and thereby determines the form of reflection which we must use to make sense of our experience). Instead, Rorty claims, we must learn to see the knowledge and action generating practices which we make use of as particular to our own cultural tradition, and as always subject to change. It is difficult to reconstruct the reasons that Rorty ultimately ends up endorsing this account of rationality. Partly this is due to Rorty’s own reluctance to argue for his position. Indeed, Rorty frequently suggests that he does not mean to develop arguments in favor of his account of rationality at all (Nelson, 125). Instead, Rorty claims, he is simply suggesting an alternative way of thinking about what rationality is, an alternative starting point for reflection on rationality itself (Nelson, 125). He suspects that, if his alternative was taken to heart, if people began to think of rationality as a historically contingent set of practices, always changing, variable, and multiple, we might give up a set of philosophical problems which are unsolvable and begin, instead, to focus on working on the political problem of realizing a form of life in which each person is accorded the resources and freedoms to develop his or her own unique (and potentially beautiful) identity and life-project. But, though Rorty does sometimes attempt to forego arguing for this position, I submit that we can also find more or less worked out arguments (or at least suggestive considerations) in his writings which explain why he thinks of rationality as he does. The most powerful of these, to my mind, is (what I would like to call) the argument from history. The argument from history is the argument that the appearance of discernibly different forms of rationality in the historical record indicates that rationality is not a fixed form of knowledge and action generation and that we can never be sure that the form of rationality which 156 we have been socialized into (through our being born into, and raised within, a particular social situation) is universally shared either in our own society or in different societies at a given time. Though Rorty mostly prefers to avoid arguing for his position in this way (thinking, as I have already said, that it is preferable to refrain from argumentation at all and to present his account of rationality, instead, as merely an alternative to the dominant way of conceptualizing rationality), his reflections on the intellectual path that led him to his position makes it clear that it is something like this argument from history, an appreciation for the historical variability of forms of rationality, that stands behind and motivates Rorty’s account. My interpretation of Rorty’s position is supported by his introduction to Philosophy and the Mirror of Nature. There, Rorty writes about his realization that the questions which seem pertinent to us, the very way that we make sense of our experiences, is determined by the language game, the “vocabulary” which we adopt. “Almost as soon as I began to study philosophy, I was impressed by the way in which philosophical problems appeared, disappeared, or changed shape, as a result of new assumptions or vocabularies. From Richard McKeon and Robert Brumbaugh I learned to view the history of philosophy as a series, not of alternative solutions to the same problems, but of quite different sets of problems. From Rudolf Carnap and Carl Hempel I learned how pseudo-problems could be revealed as such by restating them in the formal mode of speech. From Charles Hartshorne and Paul Weiss I learned how they could be so revealed by being translated into Whiteheadian or Hegelian terms. I was very fortunate in having these men as my teachers, but, for better or worse, I treated them all as saying the same thing: that a “philosophical problem” was a product of the unconscious 157 adaptation of assumptions built into the vocabulary in which the problem was stated – assumptions which were to be questioned before the problem itself was taken seriously.” (Philosophy and the Mirror of Nature, xiii, emphasis mine). What is suggested by this passage is that Rorty draws a fundamental lesson from his acquaintance with the history of philosophy. He takes it that the history of philosophy demonstrates that different language-games (or forms of rationality) have been dominant at different historical moments. This appreciation of historical variability, what Rorty in some places calls the “sociality of reason” can be understood as the realization (or basic premise) which leads Rorty to claim that the philosophical attempt to reconstruct a universal rationality, to give an account of rationality which will be definitive and final, is misguided (Philosophy and the Mirror of Nature, 7). Indeed, such a project could never hope to succeed because rationality itself (which Rorty joins Habermas in defining in terms of the form of language use which is characteristic of the lifeworld) is an unpredictable, and ever-moving, target. (2) Now, given the way that he thinks about rationality, it is not difficult to guess the way that Rorty objects to Habermas’s project. For Rorty, Habermas’s universalistic reconstruction of rationality is a mistaken project (and potentially even insidious) insofar as Habermas misunderstands the target which he seeks to reconstruct. Whereas Habermas believes that, in his account of lifeworld rationality, he is making explicit the rules (procedures) of a “language- game” which is almost universally played (across cultures), Rorty doubts that Habermas’s reconstruction of the “rationality of the lifeworld” is anything more than a reconstruction of a language-game played by a relatively small group of people. In fact (somewhat problematically), Rorty even goes beyond doubt in several places and gives this the status of an assertion. One example of this is Rorty’s essay, Universality and Truth. There Rorty imagines the different 158 responses that he and Habermas might make to an opponent of liberal political practices and values. Whereas (Rorty claims) Habermas would attempt to ground a commitment to those things through awakening his opponent to the inescapability of the basic practices and principles of lifeworld rationality (and thereby to shared normative commitments to liberal practices and values which was outlined above), Rorty, because he does not believe there is any shared rationality on which to ground shared normative commitments, simply has to throw his hands up and admit that his commitment to liberal values and practices is a matter of ethnocentrism. Thus, Rorty writes: “People like Habermas and myself cherish both the ideal of human fraternity and the goal of universal availability of education. When asked what sort of education we have in mind, we often say that it is an education in critical thinking, in the ability to talk over the pros and cons of any view. We oppose critical thinking to ideology, and say that we oppose the ideological education of the sort which the Nazis inflicted on German youth. But we thereby leave ourselves wide open to Nietzsche’s scornful suggestion that we are simply inculcating our own ideology: the ideology of what he called ‘Socratism.’ The issue between me and Habermas boils down to a disagreement about what to say to Nietzsche at this point. I should reply to Nietzsche by conceding that there is no non-local, non- contextual, way to draw the distinction between ideological education and non- ideological education, because there is nothing to my use of the term ‘reason’ that could not be replaced by “the way we wet Western liberals, the heir of Socrates and the French Revolution, conduct ourselves.” I agree with MacIntyre and 159 Michael Kelly that all reasoning, both in metaphysics and ethics, is tradition- bound.” (Universality and Truth, 20-21). What this passage suggests is that, at least some of the time, Rorty goes beyond the skeptical position on rationality which I described above, and instead makes the claim that there actually are different forms of rationality in circulation in different societies. The way this passage shows this is that Rorty, here, clearly countenances the possibility of an opponent of the language-game which he prefers (suggesting that there are at least two different language-games being played) and then attributes the language-game that he prefers to a particular socio- historical tradition (that of Western liberalism). Rorty’s argument with Habermas would end at this point if it were not also the case that Rorty believes, for normative reasons, that Habermas’s way of conceptualizing rationality (as a virtually universally-shared form of language use) is potentially dangerous. The reason that Rorty forwards this additional objection to Habermas is that he has the view that it is morally important to protect innovative uses of language which can lead to new language-games (i.e. new “forms of rationality”). He makes this case most explicitly in his well-known text, Contingency, Irony, and Solidarity. There, Rorty takes a stand in favor of a “poeticized culture”. By this he means that he would like to support the development of a culture in which the activity of poetic re-description of life and creation of identity would be protected and esteemed. In Habermas’s attempt to reconstruct a universally shared rationality, however, Rorty detects a potential threat to this project. For, if Habermas’s account became widely accepted, then the deviant uses of language which Rorty wants to protect might become endangered. They might come to be thought of not as original creative acts opening up new possibilities for experience and self- 160 description, but instead as destabilizing mistakes which should not be permitted to take root in popular culture. (3) Now that we have given some sense of the objections that Rorty makes to Habermas’s social theory, we are in a position to see how Habermas responds to them. This will, hopefully, drive home the importance for Habermas of maintaining the virtual universality of his account of lifeworld rationality. It will also help us to see why Habermas foregoes a cultural-rights defense of strong judicial review (which Rorty himself once seemed to consider plausible) in favor of his universalistic defense. I can discern two distinct responses which Habermas might make to Rorty’s objections. The first is to argue that, if things were as Rorty suggests that they are, then something which undoubtedly does happen, inter-cultural communication, would be impossible (or at least improbable) [a]. The second is to argue that Rorty gets himself involved in significant contradictions by accepting the position that there are multiple distinct language games being played by distinct communities (b). In short, if this claim were true, Rorty would not be qualified to assert that there are, in fact, different forms of rationality being used by different communities (because the truth of this initial claim would undercut the epistemic status of the rationality which he relies on to make the claim so significantly that there would be no good reason to accept his conclusion). I will reconstruct these responses in turn and then say something about the connection between Habermas’s “universality thesis” and the path that he takes in defending the legitimacy of strong judicial review (c). (a) Kai Nelson addresses intercultural communication in his article, Skeptical Remarks on the Scope of Philosophy: Rorty v. Habermas. There he views Habermas and Donald Davidson as both confronting Rorty with the undeniable fact that cross-cultural communication does occur. 161 But if things were as Rorty suggests, if different cultural groups really were making use of different forms of rationality, playing different language games, it is hard to see how this would be possible. Nelson writes: “There is for starters the social fact that we do communicate, and do communicate across cultures, and that there are no untranslatable or non-comparable languages. Davidson and Habermas can be plausibly viewed as doing much the same thing, namely, attempting to explain how this happens, to explain how, if you will, various field linguists from various tribes studying other various tribes can succeed… For them to do so, we must assume a common human nature in a perfectly unproblematic and mundane conception of human nature. We must assume, that is, that the people from other tribes have, as we do, beliefs, desires, make observations, form intentions, think, question and the like and that, generally speaking, their beliefs, desires, intentions, questionings are broadly like ours… Inter-tribal and intra-tribal communication does obtain. Only if there is some shared basis of belief could this happen. But it does happen, therefore, there must be some shared basis of belief.” (145). What this passage shows is that Rorty’s attack on Habermas’s attempt to reconstruct a universalistic account of rationality starts out from an unpromising position. Indeed, Rorty would be the last to deny that communication across cultures takes place. In his political philosophy he maintains that just this sort of communication is what is necessary in order to secure a form of life in which difference and personal autonomy (two of his core values) would be safeguarded. But it seems clear enough that this sort of intercultural communication, as Nelson points out, indicates that there is not a deep difference between forms of rationality being used by members 162 of different cultural groups. For, if there were, then it is difficult to imagine any communication succeeding at all. This is because, at the end of the day, the form of experience which a member of a cultural group has, for both Habermas and Rorty, will depend upon the language game that they are socialized into. But radically different forms of experience might not allow for communication to take place, since these would generate extremely divergent frames of reference. So, since communication does take place across cultures, we should suspect that the form of rationality being used by different cultural groups is likely to be shared (or at least similar). But this suggests that Habermas’s attempt to develop a universalistic theory of rationality is not as misguided as Rorty thinks. (b) Another possible way which Habermas might respond to Rorty is by considering what Rorty’s own epistemic position as a theorist would be if his account of rationality turned out to be correct. As I have already suggested, one of the main reasons that Rorty adopts the account of rationality which he does is that he has been impressed by the historical situatedness of rationality. In other words, he sees that different forms of rationality have developed at different historical moments, and this suggests to him that it would be foolish to assume that any one particular form of rationality has a universal application (or that it will not be replaced by some alternative form of knowledge and action generation in time). But, it must be pointed out, that in taking this position (for the reasons that I have attributed to him), Rorty seems to be claiming that he is capable of correctly determining that some forms of rationality are different from others. But this is a substantive claim. It is a claim about how things are, about the different knowledge and action generating practices that different groups make use of. As such, then, it appears to be a truth claim of an unbounded sort. Thus, it appears that Rorty believes that he is describing things correctly when he makes the claim, not just giving expression to his particular, 163 contingent, form of rationality. Indeed, if Rorty could not claim that it was actually true that different forms of rationality have developed throughout history, then there would be no obvious reason to adopt his perspective on rationality. But, just by trying to relativize rationality in the way that he does, Rorty apparently prevents himself from making this argument. For, if his own form of rationality is just another contingent social practice, then there seems to be no reason to believe that the conclusions which he reaches about rationality are true. But, in that case, there is no reason to hold the position that Rorty does hold about rationality. In the article just referenced, Kai Nelson also gives a good gloss on this Habermasian response. He sees this counter-argument to Rorty, in short, as being a version of the self- referential inconsistency critique. In Nelson’s version of this response, what is problematic with Rorty’s position is that it seems to attempt to explain to us “the way that things actually are”, but at the same time denies that anyone is in a position to make such a claim. In the following passage Nelson quotes Habermas (who is responding to Rorty as well as various other thinkers who would like to awaken us to the historical contingency of rationality) to make this point: “But, as Habermas has it, all of these accounts, paradoxically, after their rejection of First Philosophy and foundationalism, still keep on in effect believing, though groundlessly, “in the authority and superiority of philosophical insights, namely their own, over those of science, politics, and everyday life.” After all, they continue to claim that they give the right interpretation of what everyday life is or of what science is and of its scope, its limits and of the authority of its claims. But this is in effect a turning back to something like the very Kantian conception of philosophy they started out by rejecting. This reveals – though, of course, this is not something they would, or perhaps even could, acknowledge – that they cannot 164 really take their dismissive goodbye and good riddance for real. They cannot really take their dismissal of truth as genuine, for, after all, they are giving to understand that what they say is the truth, or is at least true.” (Nelson, 123-124). As I have already suggested, Rorty has formulated a strategy to deal with the challenge of self-referential inconsistency. In short, he seeks not to argue for his position on the grounds that it is correct, but simply to recommend it on the grounds that it might help us to overcome tiresome and distracting problems. I cannot pursue any further here whether or not this response is compelling. Instead, I will simply summarize what this review of Rorty’s critique, and Habermas’s response, helps us to see about Habermas’s social theory and the type of justification of strong judicial review which Habermas can be expected to develop. (c) Reviewing Rorty’s critique of Habermas’s universalist theory of rationality helps to make clear why Habermas develops the type of justification of strong judicial review which he does. In short, Habermas’s justification of strong judicial review seeks to justify the institution on the grounds that it helps the members of the public to do something to which they are all, in some sense, already committed (through their commitment to a shared form of rationality). That is, in short, to settling their disputes through communication oriented to mutual understanding. This type of justification is premised on the existence of a common practical commitment to a particular form of dispute resolution (lifeworld rationality). Habermas’s universalism about rationality, then, points him in the direction of the type of defense of strong judicial review which he ultimately develops. However, there are other, plausible, justifications of strong judicial review which start not from the assumption of commonality or shared commitments, but, instead, from the assumption of divergent commitments and deep differences in values, beliefs, and even forms of experience 165 (or, in Habermas’s language, basic “world-concepts”). We have already seen, in our review of the different prominent defenses of strong judicial review, some such accounts. The desire to protect minority rights, for instance, fits in rather well with the Rorty-an idea that the lifeworld is not characterized by a shared form of rationality, but rather by different, and perhaps incompatible, practices of knowledge and action generation117. Habermas, because he sees convergence on a shared form of rationality rather than difference, does not frame his justification of the practice in this way. 2.7.2 Amy Allen Having reviewed Rorty’s argument that Habermas’s theory of rationality ought to drop its claim to universality, we can now move on to considering Amy Allen’s different, but related, critique of Habermas’s social theory. Allen states her critique of Habermas most definitively in her book, The Politics of Ourselves. There, within the context of a discussion of subject formation (having to do with whether or not the normative goal of autonomy is achievable under conditions of deeply ingrained cultural sexism, racism, and hetero-normativism), Allen takes Habermas to task for developing an account of lifeworld rationality (i.e. practices of knowledge and action generation) which portrays communication in far too rosy a way118. In this section I will summarize Allen’s critique (1) and then consider how Habermas might respond to it (2) and 117 Indeed, Rorty himself once seemed attracted to a defense of strong judicial review which would conceptualize it as a practice whereby reasonable compromises could be worked out between groups of citizens who were divided by fundamentally different ideas, values, and knowledge and action generating practices. Though he later, in the wake of Bush v. Gore, revised his optimistic account of the Court, Rorty at one time wrote the following: “As our presidents, political parties, and legislators become ever more corrupt and frivolous, we turn to the judiciary as the only political institution for which we can still feel something like awe. This awe is not reverence for the Euclid-like immutability of the law. It is respect for the ability of decent men and women to sit down across tables, argue things out and arrive at a reasonable consensus.” (Take Care of Freedom and Truth will Take Care of Itself, 112). 118 This claim is related to Rorty’s claim insofar as it also attacks Habermas on the grounds that his theory of rationality is misconceived (however Rorty’s emphasis is on Habermas’s universalism, whereas Allen focuses on the particulars of Habermas’s reconstruction). 166 consider the implications of Allen’s critique for thinking about the legitimacy of strong judicial review (3). In doing so, I will correct for a widely shared misimpression about Habermas’s account of lifeworld rationality. This will put us in a better position to understand Habermas’s argument about strong judicial review by making it clear that Habermas does not believe that the normative criteria which members of the lifeworld can be expected to make use of when they ask after the legitimacy status of the social institutions which regulate their lives are ever fully realized (or even come close to being realized) by those individuals in their interactions with one another. (1) The first thing to notice about Allen’s critique of Habermas’s theory of lifeworld rationality is that it is not a thoroughgoing one (in the sense of Rorty’s rejection of the attempt to develop a universalistic theory of rationality at all). Indeed, Allen agrees with several of Habermas’s basic premises, including Habermas’s account of rationality as “impure” and “historically variable” (40-41). Where she departs from Habermas’s account is on the question of its conceptualization of power within the context of communication. In short, Allen believes that Habermas does not pay sufficient attention to the way that instances of communication in the lifeworld are impacted by culturally ingrained power relationships. Allen begins her attack by rehearsing Nancy Fraser’s well-known critique of Habermas’s account, which Fraser developed in the article, What’s Critical About Critical Theory? She presents Fraser as offering the broad outlines of a critique of Habermas’s position. She then attempts to expand upon Fraser’s critique through engaging in considerations about whether the practices of knowledge and action generation which members of rationalized societies actually engage in ever come close to resembling the depiction of these practices which Habermas develops in his reconstruction. 167 I will start my review of Allen by briefly commenting on her point-of-departure. In her well-known article, Fraser attacked Habermas’s social theory on the grounds that it only (or most primarily) conceptualizes power in terms of behavioral imperatives which are “issued” by social systems against members of the lifeworld119. To make this concrete, we might think of the example of a parent who is forced (by the economic realities under which he or she lives) to forego spending time with his/her children in order to maintain employment. But, according to Fraser, choosing to conceptualize power exclusively (or at least nearly exclusively) in this way means that the picture of rationality which Habermas ends up presenting is one in which the various “asymmetrical power relationships” which structure processes of lifeworld communication will be de-emphasized. This is a problem for Fraser because, as feminist theorists (and many others) have correctly pointed out, these power relationships, which put pressure on dis-empowered individuals to behave in ways that they ultimately do not want to behave, are a normal part of daily life. Indeed, they are centrally implicated in the maintenance of patriarchy (and other forms of oppression). Building on Fraser’s general critique, Allen also challenges Habermas’s account along these lines. For Allen, Habermas’s theory of lifeworld rationality needs to be supplemented with an analysis of the characteristic ways that participants in conversation are respectively privileged and disempowered in patriarchal, White-supremacist, heteronormative, capitalist societies like our own. Allen attempts to motivate her position through offering a theoretically informed 119 What Fraser has in mind is Habermas’s account of the way that social sub-systems (especially the economic system) can work to put individuals into a situation in which they face enormous pressure to violate their own normative commitments about how they should interact with other members of society. I discussed this possibility, which Marx and Weber also brought out, respectively, above. Habermas, according to Fraser, is quite right that social systems can have these consequences. And he is also right, on her account, that, when they do function this way, we are dealing with a form of normatively unjustifiable power which is functioning to oppress individuals. Nevertheless, Fraser believes that Habermas’s account is lacking when it comes to appreciation of the other various ways that power functions to oppress individuals in the lifeworld. 168 description of the power dynamics in “traditional, heterosexual, nuclear families”. She writes the following: “Now, it seems to me that the elephant in the room here is the traditional, heterosexual, nuclear family’s role in the reproduction and maintenance of gender and sexual identity and relations of dominance and subordination. After all, one might wonder, what heterosexual family is not structured by asymmetrical relations of power? As may second-wave feminists have shown, the gender division of paid and unpaid labor, the second shift, the gender gap in wages, and sex-segmented labor market all serve to systematically disadvantage women in heterosexual families. These structural economic forces combined with ideological norms of masculinity, femininity, motherhood, fatherhood, and heterosexuality itself serve to encourage individuals to enter into such asymmetrical family relationships in the first place… Arguably, then, the smoldering conflicts that arise from gendered power asymmetries will serve to systematically distort communication between men and women in most families; such distortions will in turn suppress those conflicts so that they continue to smolder beneath the surface of apparently communicative action. If this admittedly broad sketch is at all accurate, then it becomes apparent that the scope of systematically distorted communication … is much broader than Habermas seems to assume; indeed, it appears pervasive.” (104). From this passage it is clear that what Allen is charging Habermas with is failing to develop a theory of rationality which actually takes account of the way that disputes are resolved when they arise between members of the lifeworld. For Allen, Habermas’s account makes it 169 appear as though the highly desirable norms and practices of communicative repair (which, as we have already seen, he designates as “lifeworld rationality”) which he outlines in terms of a theory of argumentation are actually realized in the lifeworld. But this is not so. When members of the lifeworld actually engage in communication oriented to mutual understanding, the conversational permissions which participants actually possess will be, to a large extent, influenced by legacies of sexism, racism, and hetero-normativism. In other words, culturally engrained norms of masculinity and femininity (among many others) will mold both expectations and behaviors within communication and thereby prevent the ideals identified by Habermas (i.e. the counter-factual idealizations of communication oriented to mutual understanding) from being realized. But this seems to suggest that Habermas’s account of lifeworld rationality, far from making us aware of the way that communication is structured in rationalized societies, actually threatens to distort our understanding. But then, it would seem, the sociological model which Habermas would like to base upon his theory of communication (the building of which, as we showed in the introduction, was the central concern of Habermas’s overall project in social theory) will be subject to distortion as well. For Allen, this all adds up to the realization that Habermas’s theory of lifeworld rationality must, if it is to be the basis of a critical theory (one which can do what Habermas wants it to do) be significantly revised120. (2) Having gained a basic idea of the problems which Allen has with Habermas’s account of lifeworld rationality, we can now turn to the question of how Habermas might respond to her criticisms. As we have already seen, Habermas develops his account of lifeworld rationality in 120 Allen’s recommendation is that Habermas’s reconstruction of rationality be complicated by sophisticated analyses of power developed in the tradition of Foucault. She is most interested in Judith Butler’s account of subjectivization, developed in her book, The Psychic Life in Power: Theories in Subjection. I do not have the space here (nor do I possess the expertise) to go into questions about whether or not the particular synthesis which Allen proposes would be possible, or what elements of Habermas’s theory of rationality and society would survive a confrontation with Butler’s account. 170 terms of certain basic ideas about how communication should be structured which he claims that virtually all members of the lifeworld would endorse (at least upon reflection). Importantly, he refers to these as “counter factual idealizations” (The Liberating Power of Symbols, 98). His reason for doing so, which we have already touched on, is precisely because he does not believe that these commitments are ever actually realized in practice. This is why he calls them “counter- factual”. But this does not mean, for Habermas, that these shared commitments are unimportant. Indeed, he recognizes that, though they are never fully realized, they still possess a “broadly normative content” and so provide an at least weak motivation for members of the lifeworld to organize their communicative interactions in certain ways (The Liberating Power of Symbols, 98). Now, as we have just seen, the critique which Allen forwards against Habermas’s theory is that it misconceives the actual processes of communication which take place in the lifeworld. Because it focuses primarily on the shared commitments which participants in communication jointly endorse (or would jointly endorse on reflection), it misses other important features of communication in rationalized societies. Most notably, for Allen, it does not pay nearly enough attention to how communication processes are structured not only by shared commitments about how communication, in general, should be structured, but also by legacies of racism, sexism, hetero-normativism (and other oppressive ideologies). The result is that Habermas ends up with a theory of lifeworld rationality, and a social theory built upon it, which does not pay enough attention to the way that illegitimate power and oppression structure both particular processes of communication and the laws and institutions which regulate our daily lives. To see how Habermas might best respond to this line of criticism, we need to return to where we started in this chapter – with our account of the reasons that Habermas attempts to 171 develop a general social theory in the first place. As we saw, Habermas has (what I called) a “political” motivation for developing his general social theory. That is, his theory is intended to provide us with a way of making sense of the interactions between various social systems. Toward this end, Habermas provides us with a reconstruction of the rationality of the lifeworld. He does this because he thinks that such a theory will allow us to think through questions about how members of the lifeworld are likely to view the social sub-systems which work to organize their lives. And this is important because it can help us to generate good guesses about whether or not social instability, or even crisis, is in the offing (given our understanding of the set of political and social circumstances which we face at a moment in time). And, on top of this, as we have already said, the theory of lifeworld rationality also helps us, as social theorists, to clarify our own normative commitments (which we have taken on no less than the members of society who we make the subjects of our investigations). Now, as I see it, there is nothing in Habermas’s project which counsels against incorporating the insights about how actual communicative processes are structured which philosophers working from a perspective like Allen’s have developed. Indeed, as I have already said, in reconstructing lifeworld rationality Habermas is doing something akin to what Weber was doing in his attempt to provide a narrative-like account of cultural rationalization. That is, Habermas is making explicit certain basic characteristics of lifeworld rationality, but not claiming that all, or even most, instances of communication are therefore pure instances of that form of rationality. But this means that there would be nothing threatening to his project in supplementing it with an account of the way that actually existing racist, sexist, hetero-normative and other culturally-specific ideologies regularly impact communicative interactions. These various ideologies could be understood as cultural content which plays an important role in 172 determining how actual processes of communication will play out. This content (e.g. sexist assumptions and patterns of behavior) would, of course, in its turn, have to be expected to be gradually transformed through ongoing processes of communication (in a way analogous to the process of cultural rationalization which Weber described – in which dominant beliefs and well- established cultural patterns of action were continuously modified by being continuously subjected to rational scrutiny over time). But the fact that these ideologies and cultural patterns could be expected to change over time would not mean that sophisticated accounts of the actually existing oppressive and widespread beliefs and prejudices which are the legacy of patriarchy, White supremacy, and homophobia would not be needed to understand the current status of cultural rationalization in the lifeworld. Thus, I think that Habermas would have to welcome Allen’s proposal and agree that synthesizing his account of general features of communication with an account of communicative pathologies would improve his understanding of the perspective of members of the lifeworld. I will comment further on this project in my concluding comments (below). (3) One interesting element of Allen’s critique, which might prove relevant when it comes time to assessing Habermas’s reconstruction of the legitimacy status of strong judicial review, is that it suggests an additional defense of strong judicial review which Habermas might be able to offer. If Habermas were to accept Allen’s account of lifeworld rationality as infected with the noxious historical content of sexism, racism, homophobia (and other forms of oppressive ideology and cultural practices), then he might be able to justify strong judicial review on the grounds that, though it would, under ideal conditions, not be for judges to determine which constitutional rights are necessary in order for large-scale rational deliberation to take place, judges should indeed take on this role when oppressive cultural ideologies like 173 these are still likely to have an impact on processes of public deliberation. In that case, perhaps because judges can be trusted to be experts on processual questions (as Ely suggested), it might prove to be better to allow constitutional courts to resolve questions about constitutional interpretation (rather than majoritarian forms of decision-making) because they will actually be more likely to ensure that members of the public possess the rights which they must in order for large scale rational deliberation to take place. 174 Chapter 3: A Critical Analysis of Habermas’s Defense of Strong Judicial Review Having worked through the basics of Habermas’s social theory, in this chapter I will reconstruct Habermas’s argument that constitutional democratic legal systems which empower constitutional courts to engage in strong judicial review do not necessarily have to run into legitimacy problems (3.1). As I have already indicated (in sections 2.4 through 2.6), for Habermas, a legitimate legal system is a legal system that is structured in such a way that the laws which it produces will generally be taken to be worthy of respect (because they can be expected to be reasonable) by members of the public. Said in a slightly less complex way, then, a legitimate legal system is a legal system which, by virtue of the way that it is set up, can reasonably be expected to regularly produce legitimate laws. To demonstrate that some constitutional-democratic legal systems which empower constitutional courts to engage in strong judicial review would also possess the property of legitimacy, Habermas must define the basic elements of these systems, describe how these systems would produce laws, explain which features the laws produced by such systems would have (and how the system would guarantee that they would have these features), and then make use of his account of the basic normative commitments which members of the public can be expected to endorse (which is grounded upon the practical commitment to resolving disputes and forming collective action plans through communication oriented to mutual understanding) to show that laws with these features would generally be taken to be legitimate by the public such that the legal system which ensured that they would have these features would also generally be taken to be legitimate. As I have already explained, the legitimacy-related feature which Habermas thinks that laws produced by constitutional-democratic legal systems would have is a procedural one. 175 Because he believes that constitutional-democratic legal systems produce laws which can be known to be responsive to processes of public communication which roughly accord with the ideal presuppositions of communication oriented to mutual understanding, Habermas believes that members of rationalized societies should be able to see those laws as legitimate, and therefore should be able to see the constitutional-democratic legal system which structures the production of the legal code as legitimate as well. I will use the step-by-step approach which I have suggested here in organizing my reconstruction of Habermas’s account. Once I have finished reconstructing Habermas’s argument, I will develop a “first-pass” counter-argument to his position (3.2). In doing so, my argument will be internal to Habermas’s basic social theory. That is, I will not try to argue against Habermas on the grounds that his theoretical claims about the communicative orientation of members of rationalized lifeworlds is wrong, or on the grounds that his reconstruction of the legitimacy basis of constitutional democratic legal systems is flawed. Instead, I will try to show that, even if we accept these basic premises of Habemas’s social and political account as true, his argument that, assuming that certain conditions are met, strong judicial review need not cause legitimation problems for constitutional-democratic legal systems would still not be convincing. This is chiefly because, as I said in the introduction, Habermas fails to show why members of the public should expect decisions about the meaning of basic constitutional rights, when made by constitutional courts, to be guided by communicative processes of public opinion and will formation. But, as I hope that I have already shown, and as I will again show in this chapter, Habermas is absolutely committed to the claim that members of rationalized societies can be expected to have internalized a commitment to seeing public deliberation (i.e. public processes of communication oriented to mutual understanding) as the only available source of legitimate 176 law such that they cannot be expected to accept as legitimate decisions about basic rights which are not guaranteed to be influenced by such a process of public communication. 3.1 Reconstruction of Habermas’s Defense of Strong Judicial Review I will begin this section by laying out precise definitions of key terms (3.1.1). I will then briefly review Habermas’s account of the practical commitment to communication and argumentation which members of rationalized lifeworlds can be, more or less, expected to take on through socialization (3.1.2). Having accomplished this, I will then review in detail Habermas’s account of the way in which this practical commitment can be expected to lead members of the lifeworld to see (some) constitutional democratic legal systems as legitimate (3.1.3). Of course, I have already given a general gloss on why Habermas thinks that citizens should generally expect that constitutional democratic legal systems will produce legitimate laws. But I will, in this section, significantly expand the account that I have so far offered. After this final bit of groundwork has been laid, I will then show how Habermas argues that, assuming that certain conditions are met, the use of strong judicial review by constitutional democratic legal systems need not pose legitimacy problems for those systems (3.1.4). Once this is accomplished, I will (1) argue that Habermas’s approach to defending strong judicial review seems, at least upon initial inspection, to be promising as a response to the judicial review skeptics (introduced in chapter 1) and (2) place his account in context relative to the various other justifications of the practice which were presented in chapter 1 (3.1.5). 3.1.1 Definitions In my impressionistic depiction of Habermas’s social theory, I left some key terms somewhat ambiguous, but now they require more specification. The main terms which must be 177 defined are: ‘legal system’, ‘constitutional democratic legal system’, ‘constitutional court’, ‘strong judicial review’, and ‘weak judicial review’. In what follows, when I refer to the legal system, I am generally referring to the set of institutions and practices which work to generate, interpret, and enforce the laws in some particular legal community. For example, both the House of Representatives and the Michigan State Police are institutions which are a part of the legal system in the legal community of the United States of America. This is because they, in turn, generate federal laws (which apply to all citizens of the United States) and enforce state laws (which apply to all citizens of the United States just as long as they currently reside in the state of Michigan). Although this definition of ‘legal system’ is, of course, still somewhat imprecise, it should be clear by this example what I generally have in mind by this term. When I refer to constitutional democratic legal systems I am referring to legal systems which have, among others, several basic characteristics. First, constitutional democratic legal systems have constitutions which specify particular law-making procedures and endorse a set of general, basic, individual rights which are understood to be fundamental and controlling for “ordinary law” (such that laws or administrative actions which violate them must be understood as illegitimate). Constitutional democratic legal systems also make use of democratic decision- making mechanisms in order to generate, reform, or otherwise modify the legal code (including those constitutionally guaranteed processes and rights). Representative democracy is one familiar instance of this. In a representative democracy, members of the legal community (hereafter I will use both this term and terms like “citizens” to refer to this group of people) elect representatives who are tasked with both making laws which will govern their interactions and administering these laws (among other things). 178 Constitutional democratic legal systems also, as Habermas understands them, are characterized by a (more or less) healthy public sphere in which citizens are able to communicatively engage with one another about important political issues (and most all other issues of shared concern or interest as well) under conditions which at least roughly approximate the counter-factual presuppositions of argumentation (as defined above). I define ‘public sphere’ (and several related terms) precisely below (in 3.1.3). Constitutional democratic systems also make use of mass media institutions which enable widespread public communication to take place (across wide spaces and in relatively short time) and also shape public communication in various important ways, for instance through choices about how to frame important political issues. When I refer to a constitutional court, I am referring to a body of judges which is tasked with (1) developing an interpretation of the meaning of the basic rights and procedures contained in the constitutional document (or documents) of the legal community and (2) making use of this interpretation to answer questions about whether or not constitutionally enshrined rights and procedures have been violated either through the promulgation of laws by the legislative branch of government, or by the administrative activities of the executive branch, or in some other way. The members of constitutional courts can be expected to use various different interpretive and adjudicative methods (in accordance with their personal philosophies of judicial interpretation and their understanding of the constitutional text which they must interpret) to arrive at the conclusions which they reach about these questions. The judges on a constitutional court are also characteristically reliant upon a sophisticated support staff, including clerks and outside researchers, which (at least hopefully) enables them to gain a thorough understanding of the questions which they are required to answer. 179 When I refer to strong judicial review, I am, following Jeremy Waldron, referring to a power which some, but not all, constitutional democratic legal systems which make use of constitutional courts grant to constitutional courts. A constitutional court has the power to engage in strong judicial review when, either by more or less settled tradition or through explicit constitutional language, or in some other way, it is empowered not only to (1) render a decision about whether or not some particular law or administrative action has violated constitutional rights or procedures, but also to, on the basis of finding that such a violation has occurred, (2) nullify (or, in some cases, modify) the offending law or issue a legally binding order that the administration cease behaving in the offending way. Legal systems which make use of constitutional courts, but do not empower them to interact with the other branches of government in this way, are legal systems which, by contrast, empower the courts to engage only in weak judicial review. 3.1.2 The Practical Commitment to Communication As we saw in chapter 2, one of Habermas’s main social-theoretic points of departure is the (Weber-inspired) claim that a widespread process of societal rationalization has taken place and transformed the lifeworld (across cultures) in such a way that members of the lifeworld have taken on a practical commitment to engaging in communication oriented to mutual understanding when (among other times) disputes about the norms which ought to govern social life arise or when traditional patterns of behavior become problematic (from the perspective of the individuals who engage in the behavior, whether for reasons of effectiveness or normative reasons) such that new cooperative action plans must be formulated. As we also saw in chapter 2, Habermas refers to the communicative practices which members of the lifeworld use to resolve 180 these disputes as “lifeworld rationality”. He reconstructs this form of rationality in his theory of language-use, Universal Pragmatics121. As I hope I have already made clear, this is not to say that Habermas claims that all individuals socialized into a rationalized lifeworld thereby take on, or recognize themselves to be under, something like a thoroughgoing ethical commitment to resolving the disputes which arise in daily life through communication. It is also not to say that all disputes or breakdowns in cooperative action result in communication aimed at restoring consensus. Sometimes, of course, members of the lifeworld simply do not perceive disagreements to be significant enough to require resolution. And sometimes, of course, members of the lifeworld forego attempting to rationally resolve their disputes and rely instead on power imperatives or bargaining. Habermas does not deny any of this. What Habermas is saying, instead, is that members of the lifeworld can generally be expected to see communication oriented to mutual understanding as the appropriate procedure to use to resolve such disputes (whether these be mundane disagreements which arise in the course of daily life or the perennial topics of philosophical investigation) because of the sorts of validity claims which are raised through the performance of speech acts (i.e. claims to context-transcendent truth or normative rightness). Put another way, the claim that Habermas is making is that, from the perspective of a member of the rationalized lifeworld, there is no available alternative practice of knowledge- generation or dispute-resolution that makes better sense to use if our goal is to determine whether or not some truth-claim is actually true, or some normative claim is actually correct. I have already provided a reconstruction of the reasons why members of the lifeworld should 121 I reconstructed the basics of UP above (in sections 2.3-2.4). For a good general statement of UP see the collection of Habermas’s essays published as On the Pragmatics of Communication. Maeve Cooke’s introduction to that volume is an especially insightful reconstruction of the basics of Habermas’s account. Also see chapter 3 of the first volume of Habermas’s The Theory of Communicative Action. 181 (according to Habermas) be expected, upon reflection, to accept this claim (see section 2.3.1). I have also said that, in roughly the same way, members of the scientific research community can generally be expected to see experimental study designs as the appropriate method to adopt in attempting to resolve questions about causal relationships between two variables. Like members of the lifeworld who, as a practical matter, must rely on communication oriented to mutual understanding to resolve disputes, they do this not because they retain an ethical commitment to this (scientific) method, but instead because it appears to be the unquestionably appropriate method to adopt, the only practically available course of investigation to take, if they are interested in answering the question which is before them (i.e. if they are interested in determining whether or not a causal relationship between two variables actually exists). Now, by “communication oriented to mutual understanding” (which, as I have already made clear above, includes argumentation as the process of dispute resolution which comes into play when disagreements surface), Habermas means to refer to a particular form or practice of language-use (which we explicated above). We are engaged in communication oriented to mutual understanding when we are attempting to determine whether or not some claim is true, some proposed action is right, or some utterance is sincere by evaluating the reasons which might be given in favor of, or against, these claims. Because the goal of this communicative interaction is to bring to bear the full critical capacity of the community in evaluating these reasons, a commitment to communicative action involves further sub-commitments to structuring our communicative interactions so that they are maximally inclusive, oriented toward consensus, and devoid of coercion. Habermas describes these sub-commitments in terms of “presuppositions of argumentation”. 182 Now, given their practical commitment to argumentation, and the further commitments which are grounded upon this prior commitment, we could justifiably expect that members of rationalized lifeworlds would accept as legitimate only those laws which do not conflict with the conclusions which are reached (or would be reached) by processes of public argumentation which have to do with the laws themselves (e.g. public processes of argumentation about what the content of the laws should be)122. This is because the practical commitment to communication oriented to mutual understanding means that, if we want to determine whether or not some normative claim is correct (and the set of normative claims here would seem plainly to include claims about how the laws should be), the only knowledge-generating process which is fit to provide us with an answer is communication oriented to mutual understanding. Thus, laws which, either in content or in application, plainly diverge from communicatively generated consensuses about how the laws should be (including questions about what their content should be, how they should be applied, etc.), must be expected to be understood by members of the public to be problematic from the perspective of legitimacy. And, again, this is because such laws would have to be understood by members of the public to be the embodiments of unjustified (at least for the moment) normative validity claims123. Thus, Habermas tells us: 122 This is why Habermas tells us that: “Members of a legal community must be able to assume that in a free process of political opinion- and will-formation they themselves would also authorize the rules to which they are subject as addressees.” (Between Facts and Norms, 38). 123 In making this claim, I am making only a point about the legitimacy-standards which members of the lifeworld could be expected to employ in asking after the legitimacy-status of a particular legal statute. It is important to note, however, that Habermas does not believe that the finding that some particular statute is illegitimate would imply that the legal system as a whole was illegitimate as well. Instead, when it comes to analyzing the legitimacy of the legal system, Habermas believes (as I make plain below) that what is in question is whether or not the system is structured in such a way that it can reasonably be expected to regularly, but not necessarily always, produce reasonable laws (i.e. laws which possess a high degree of legitimacy because they are responsive to processes of appropriately structured public communication). 183 “… the legitimacy of statutes is measured against the discursive redeemability of their normative validity claim...” (Between Facts and Norms, 30). Furthermore, from what has already been said, we know that, on Habermas’s account, the only legal systems which members of the lifeworld can be expected to see as legitimate are those systems which are set up in such a way that they can be expected to regularly produce laws which are seen by members of the public to be worthy of respect. But, since whether or not the laws are worthy of respect has now been shown to be a function of whether or not they correspond with communicatively generated public opinion, this means that, on Habermas’s account, the only legal systems which can be expected to be found to be legitimate by members of the lifeworld are those systems which are structured in such a way that they can be shown to enable members of the lifeworld to engage in communication oriented to mutual understanding when disputes arise about how the laws should be structured or applied. Furthermore, these institutions must not only be able to be shown to enable the individual members of society to engage in communication about how the laws should be which at least approximates the basic presuppositions of communication (outlined above), but they must also be able to be shown to ensure that the conclusions reached through these processes become politically effective (i.e. that the decisions reached through processes of communication actually do work to shape the legal code). For, only if these conditions are met, will members of modern societies be able to see their legal system as one which guarantees that the laws will, so far as possible, accord with communicatively generated consensuses about how the laws should be. And only in that case will members of the public be able to understand the legal system as a system which is likely to produce laws which are worthy of respect (because the laws produced by the system are, in some 184 sense at least, the product of a process of public communication and are therefore likelier than laws produced through some alternative process to be correct). The argument which I have just reconstructed is the key to Habermas’s political philosophy as it is presented in his central work on the subject, Between Facts and Norms. There, in chapters 2, 3, and 4, Habermas undertakes what he calls a “reconstruction of law” (Between Facts and Norms, 132). What is being reconstructed in these chapters is the legitimacy-basis of constitutional-democratic legal systems. That is to say that, in developing his reconstruction, Habermas examines the different elements of constitutional democratic legal systems and shows how, at least under certain conditions, they can reasonably be expected to work together to produce laws which correspond with communicatively generated public opinion about how the laws should be such that such systems should enjoy the presumption of legitimacy on behalf of the members of the public. To put all of this simply, a crucial part of developing the sort of reconstruction which Habermas develops is reconstructing the communicative criteria which members of the public can be expected to apply in their analyses of whether or not the laws under which they live are legitimate. Habermas holds that constitutional democratic legal systems can be understood to be legitimate by members of the public because they ensure that the laws will possess a high degree of legitimacy through the way in which those laws come to be. The basic legitimacy principle involved here, then, is, in Habermas’s words, the principle that that “legitimate law is [in the sense that it must be] generated from communicative power” (Between Facts and Norms, 169). Thus, as we will see, in developing his reconstruction of the legitimacy basis of constitutional democratic legal systems, Habermas must show us why we should believe that these systems are structured in such a way that they will generally work to ensure that public communication 185 oriented to mutual understanding both takes place and directs (or at least is always in a position to direct) the process through which laws are produced (i.e. that processes of appropriately structured public communication shape the legal code)124. 3.1.3 Legitimacy Conferring Characteristics of Constitutional-Democratic Legal Systems As I have just made clear, Habermas attempts to legitimate constitutional-democratic legal systems on the grounds that they enable members of the legal community to regulate their interactions through public communication processes which approximately realize the norms of communication oriented to mutual understanding. Thus, because constitutional democratic legal systems would ensure that the laws which regulate social life were indeed responsive to public communication processes, and therefore should be understood as legitimate, constitutional democratic legal systems themselves would have to be seen as legitimate as well (on something like the principle that willing some end requires also willing the means to that end). As I have also already suggested (in sections 2.4 – 2.6), constitutional-democratic legal systems have several features which, on Habermas’s reconstructive analysis, can be shown to work to ensure that public communication about the laws will approximately realize the presuppositions of communication oriented to mutual understanding and that the conclusions reached through these communicative exchanges will become legally effective. The three main features Habermas identifies are (1) a system of basic, constitutionally enshrined, rights which, when interpreted correctly and made politically effective (such that they become more than merely paper-bound ideals), work to secure the conditions necessary for the realization of (2) an autonomous public sphere in which inclusive communicative processes of public opinion-and- 124 The translator of Habermas’s Between Facts and Norms, William Rehg, puts the point this way: “…laws must issue from a discursive process that makes them rationally acceptable for persons oriented toward reaching an understanding of the basis of validity claims.” (Between Facts and Norms, xix). 186 will-formation are able to take place and can be expected to influence the content and application of the legal code through (3) democratic decision-making procedures and rules, themselves also constitutionally guaranteed, which influence the behavior of lawmaking officials and enable the existence of competing political parties. I turn now to a much more detailed recapitulation of Habermas’s analysis of these different features than I have yet offered. My reconstruction of these features of the constitutional-democratic legal system will lead me to a final statement of the way that Habermas sees them functioning to enable public communication processes to shape the legal code (4). I will then make some brief comments about the way that Habermas understands the relationship between his reconstruction of the legitimacy-basis of constitutional democratic legal systems and sociological analyses of actually existing constitutional democratic societies (5). Once all of this is accomplished I will be in a position to reconstruct the reasons that Habermas believes that the use of strong judicial review by such a system would not necessarily compromise that system’s legitimacy and might actually be crucial to establishing and maintaining it (3.1.4). (1) As I have just said, Habermas’s reconstruction of the legitimacy-basis of constitutional-democratic legal systems is organized around his account of the basic, constitutionally guaranteed, rights which are characteristic of such systems125. To understand 125 This formulation may make it seem as though Habermas’s account of the characteristic constitutional rights amounts to empirical generalization. However, Habermas believes that the general rights which he reconstructs are not only the ones typically found in constitutional democratic legal systems, but are also the rights which members of a legal community must possess if they are to communicatively control the law. Kevin Olson makes this point in his article, Do Rights Have a Formal Basis? Habermas’s Legal Theory of the Normative Foundations of the Law. There, he writes the following about the system of rights: “When the principle of democracy is interpreted within the framework of positive law, according to Habermas, it establishes the need for five different kinds of rights. These rights are defined in terms of the functional requirements of a legal system legitimated by democratic political processes. They outline the kinds of legal guarantees people would need to act as citizens in formulating a fair and legitimate set of laws to govern their own conduct.” 187 how Habermas sees these constitutional rights as helping to secure the legitimacy of the constitutional-democratic legal system, we need to (a) describe these rights, (b) see why, in general, Habermas believes that they can be understood to work to enable public communication to both take place and become legally efficacious, and (c) make clear one of the main conditions which Habermas believes must be met if that system of rights is to be able to play the role that he assigns to it. 3.1.3.1 (a) Habermas’s Description of Constitutional Rights Habermas identifies five sets of basic constitutional rights in Between Facts and Norms. The first set of rights are “rights to the greatest possible number of equal individual liberties”. The second are rights that set “the status of a member in a voluntary association of consociates under law.” The third set are rights that “result immediately from the actionability of rights and from the politically autonomous elaboration of individual legal protection.” The fourth set of rights are rights to “equal opportunities to participate in processes of opinion-and will-formation in which citizens exercise their political autonomy and through which they generate legitimate law.” The fifth set of rights are rights to “the provision of living conditions that are socially, technologically, and ecologically safeguarded insofar as the current circumstances make this necessary if citizens are to have equal opportunities to utilize the civil rights listed in (1) through (4).” (Between Facts and Norms, 122-123). The first three sets of rights which Habermas identifies define who is a subject of the law (the second set), ensure that constitutional rights will apply to these subjects and protect their constitutionally guaranteed liberties (the third set), and reserve for subjects of the law the widest zone of free choice (“private autonomy”) which can co-exist with an equally wide zone which is 188 reserved for every other subject of the law (the first set of rights)126. These rights determine, in brief, what rights do and to whom they apply. The fourth set of rights is directly related to ensuring what Habermas here calls “political autonomy”. Roughly speaking, ‘political autonomy’ refers to what we have been talking about throughout this chapter (and the last half of chapter two as well) – the ability of subjects of the law to engage in public communication about how the laws should be and to make the agreements which they reach through their communicative exchanges effective in legal terms. Indeed, this fourth set of rights, in Habermas’s words, “…guarantees participation in all deliberative and decisional processes relevant to legislation and must do so in a way that provides each person with equal chances to exercise the communicative freedom to take a position on criticizable validity claims.” So, again, these rights make public communication possible and ensure that it will be able to play a role in shaping the legal code127. Finally, the fifth set of rights guarantee that the first four sets of rights will be more than merely formal rights. These rights work to ensure that the four prior sets of rights will be realizable for the subjects of law. They work to ensure that the members of the legal community 126 The reason that Habermas believes that constitutional-democratic legal systems must maintain a wide zone of private autonomy for their citizens is that he conceptualizes the legal system as a system which works to unburden subjects of the requirement that they resolve disputes communicatively. The system of laws allows them to forego entering into communication when disputes arise by, in a sense, pre-judging the outcome of disputes through the promulgation and enforcement of rules. Thus, the legal system allows subjects to pursue whatever projects they would like to pursue, within the limits set by the laws. This is what is meant by the “zone of free choice”. 127 By conceptualizing rights in this way, Habermas is opting for something similar to J.H. Ely’s idea of rights as protections or permissions which enable participation in the political process. I characterized Ely’s account of constitutional rights above (in section 1.2.4). This way of thinking about constitutional rights is in contrast to the accounts of rights (associated with the liberal tradition) as fundamentally constraining (or negative). Theorists who conceive of rights as constraints generally think of them as anti-democratic mechanisms designed to prevent particular political outcomes (whether or not they can be traced to “the people”) from coming to pass. These theorists thus (at least generally) part company with legitimations of constitutional democracy like Habermas’s. For a criticism of Habermas’s account which moves along these lines, see Bonnie Honig’s article, Dead Rights, Live Futures: A Reply to Habermas’s “Constitutional Democracy”. I will comment further on the relationship between Habermas’s democratic theory and his defense of strong judicial review, and the dominant accounts in the American debate, below. 189 will actually be able to exercise the rights which are constitutionally guaranteed to them through ensuring that a certain social minimum of material resources and other “living conditions” are guaranteed for all members of the legal community. 3.1.3.2 (b) The General Function of Constitutional Rights Now, in order to get a sense of the reasons that Habermas believes that the rights which constitutional democratic legal systems extend to their subjects can be expected to work to both enable public communication processes and to ensure that the public opinion generated through them becomes politically effective, we need to get clear on the type of rights which Habermas has in mind when he conceives of the fourth and fifth sets of rights, and see how Habermas believes that these rights could be regularly interpreted, or made concrete, in such a way that they could reasonably be expected to function to both guarantee the existence of public communication processes (which approximately realize the norms of communication oriented to mutual understanding) and to ensure that the public opinion produced in these processes would become legally effective. As far as our first task goes, the following passage, in which Habermas is writing about public autonomy, makes it clear what sort of rights Habermas has in mind when he refers to rights which would be grouped under the fourth set. “The principle that all “governmental authority derives from the people” must be specified according to circumstances in the form of freedoms of opinion and information; the freedoms of assembly and association; the freedoms of belief, conscience, and religious confession; entitlements to participate in political elections and voting processes; entitlements to work in political parties or citizens’ movements, and so forth.” (Between Facts and Norms, 128). 190 In this passage it is clear that Habermas is conceiving of the rights which make up the fourth set as responses to certain social facts which might prevent public communication (which approximately realizes the norms of communication) from taking place or becoming legally efficacious. The fourth set of constitutional rights can be understood, on this account, as attempting to ensure that pernicious cultural or political ideologies (e.g. the cultural oppression of members of a religious group), or political practices of domination (e.g. the reservation of certain political offices for members of an elite class), or other impediments to inclusive and non-coercive communication processes, cannot prevent members of the legal community from participating in public communication with one another about how the laws ought to be128. These rights also guarantee, for members of the public, the ability to participate in political parties and other interest groups, and rights to certain forms of political participation. These further rights ensure that members of the public will be able to pressure legally empowered officials to modify the legal code in accordance with the conclusions reached in processes of public communication. Taken together, these two types of rights express the general normative purpose of the fourth set of constitutional rights: to ensure that public communication processes (which approximately realize the norms of communication oriented to mutual understanding) can take place and to ensure that the public opinion generated through those communicative exchanges can become legally effective. Likewise, the fifth set of constitutional rights can be understood as working to ensure that the background conditions which must be realized in order for the fourth set of rights (and the others rights as well) to be of practical use are in place. These rights would ensure, for instance, 128 The actually enumerated rights which are expressed in particular constitutions, then, can be read as a sort of historical record of both the ways that public communication has been suppressed in the past and the overcoming of this suppression through political activity undertaken by the citizens and enshrined in explicit constitutional protections against the resumption of that form of suppression. 191 that each citizen possesses the minimum material resources (e.g. food, shelter, clothing, perhaps also leisure, and many others besides) necessary in order to fully participate in political life. As reflection on the failure of most actually-existing constitutional democracies to secure the fifth set of rights for their citizens makes clear, Habermas intends his discussion of the basic constitutional rights to refer to those rights which constitutional-democratic legal systems would have to extend to legal subjects if they were going to actually live up to the communicative legitimacy-criteria we have been discussing throughout this chapter. The fact that not all actually-existing constitutional democracies explicitly guarantee citizens these rights, then, does not call into question the correctness of Habermas’s reconstruction of them. Instead, at least on Habermas’s account, this failure calls into question the legitimacy of those very legal systems. To the extent that they do not reserve for legal subjects the material and ecological (and other) resources necessary to participate fully in political life, their legitimacy-status is imperiled. Since, in going forward, my task is to attempt to see whether or not Habermas’s reflections on the question of judicial review (i.e. his argument that the use of strong judicial review would not necessarily compromise the legitimacy-status of the constitutional-democratic legal system) are compelling, I will mostly forego further discussion of the fifth set of rights. However, this should not be taken to mean that I do not think that the failure, on the part of a legal system, to reserve these rights for legal subjects compromises the system’s legitimacy. Indeed, I accept as correct the Marxist insight that purely formal rights, rights rendered un- actionable by conditions of material deprivation, are non-functional and ultimately ideological. I therefore think that the failure, on the part of a legal system, to meaningfully extend the fifth set of rights to legal subjects is serious and does significantly lessen the legitimacy of the system. 192 3.1.3.3 (c) The Conditions under which the Constitutional Rights can be Reasonably Expected to Perform their Normative Function Having provided a more concrete description of the basic rights which Habermas believes can work to enable public communication and to ensure that it becomes legally efficacious, we now need to see what practice of constitutional interpretation Habermas thinks could be used by constitutional democratic legal systems in order to ensure that these constitutional rights and procedures are applied in such a way that they actually work to enable public communication and connect its output to the legal system. For short, we need to see what form of interpretation would ensure that the constitutional rights and procedures work to realize the normative purpose of the constitution. As we saw in the introduction, this is a crucial question. This is because constitutional rights are general, but also must be made to apply to specific circumstances if they are to be other than paper-bound ideals. This means that the only thing which guarantees that constitutional rights and procedures will be able to live up to their normative purpose is a context-sensitive application which keeps the normative purpose of the constitutional project in view. In the form of a question, then, we have to ask how Habermas believes that the constitutional rights and procedures which he identifies could be made to apply to various social circumstances in such a way that they actually would realize the twin normative goals of ensuring that members of the legal community can engage in public communication oriented to mutual understanding and that the public opinion which their communicative engagement generates becomes legally efficacious. Habermas uses the concept of “legal paradigms”, to explain historically observable changes in the prevailing wisdom about how, exactly, the system of rights enshrined in the 193 constitution ought to be interpreted. Legal paradigms are, roughly, theoretically informed accounts of society which are used to conceptualize the subjects of the legal community and the various elements of social reality129. Different legal paradigms, therefore, suggest different answers to the question of how constitutional rights ought to be applied to particular, historical, circumstances. The paradigms of law which are dominant at a given historical moment frame public reflection on how constitutional rights and procedures can enable, and whether or not they actually are enabling, public communication to take place and to influence the legal system. From the perspective of a legal body tasked with generating authoritative interpretations of the constitution, legal paradigms are indispensable because, without them, both the sheer number of interpretive possibilities, and extremely difficult questions about how a proposed interpretation would actually function if it was adopted, would make the project of applying constitutional norms to empirical reality overwhelmingly complex. Legal paradigms make this task manageable by providing an account of social reality which enables us to discern “…the restrictions and possibilities for realizing basic rights” (Between Facts and Norms, 437). In other words, the account of social reality offered by a legal paradigm, because it provides a sense of the elements of social reality which might prove problematic from the perspective of the overall normative goals of the constitution, provides those legal bodies tasked with constitutional interpretation (however they turn out to be structured) with insights that can be used in overcoming the problem of constitutional indeterminacy. As I will presently show, Habermas relies on what he calls the proceduralist paradigm of law to show how a legally empowered interpretive body could resolve questions of constitutional 129 In his book Rawls and Habermas: Reason, Pluralism, and the Claims of Political Philosophy, Todd Hedrick offers a good definition of legal paradigms. They are: “generic conceptions of (a) the nature of the legal person, the subject of law, and (b) the telos of the rule of law – that is, its point or goal.” (173). 194 interpretation in such a way that members of the public could have confidence that the system of constitutional rights and procedures works to both enable public communication about the laws and make the resultant public opinion legally efficacious. In his discussion of legal paradigms in Between Facts and Norms, Habermas both identifies the liberal paradigm and the welfare paradigm as the two historically dominant paradigms of law130 and also shows how these distinct legal paradigms fail to generate constitutional interpretations which ensure that constitutional rights and procedures will work to realize the general normative purpose of the constitution131. Very briefly, by ‘liberal paradigm of law’, Habermas has in mind the account of state and society associated with classical political economy132. So long as the liberal paradigm was the dominant account of social reality, constitutional interpretation was understood (at least by the relevant legal officials) as properly aiming at securing the conditions necessary for capitalist relations of production to exist and free market exchanges of goods and services to take place (e.g. the enforcement of private contracts entered into by consenting parties). This is explained by the fact that, according to classical political-economic theory, both individual and political freedom (including popular sovereignty) could best be protected through the establishment of free markets and private ownership of the means of production. One of the grounds that this claim was justified on was the theoretical claim that the capitalist economic system ensured a dispersal of material resources throughout society such that the power differentials necessary for political oppression would be unlikely to come into being. From the perspective of an emerging 130 That is, Habermas claims that, for most of the (relatively short) history of actually existing constitutional- democratic legal systems, these paradigms were dominant (at least among those legal officials who were concerned with constitutional interpretation and in a position to develop official interpretations of constitutional rights). 131 See Between Facts and Norms, especially chapters 1-4, for Habermas’s description of these different paradigms. Also see David Ingram’s Habermas: Introduction and Analysis, chapter 7, Law and Democracy: Part II: Power and the Clash of Paradigms. 132 Some of the main sources of this tradition being J.S. Mill and Adam Smith. 195 bourgeois society which wanted to reign in the power of royals to interfere in the daily life of liberated individual rights-bearers, this account was highly compelling. It also remains in circulation today. It has recently been articulated, for instance, by Milton Friedman133. Habermas objects to the liberal paradigm on the grounds that both empirical reality and conceptual considerations make it clear that the conclusions of the classical political economists regarding the relationship between capitalism and political freedom were incorrect. He also claims that because, historically speaking, the social-theoretic claims of the liberal paradigm eventually became indefensible, an alternative paradigm, the welfare paradigm of law, developed and became dominant. “What the liberal model assumed about the functioning of the market mechanism and about the economy as a power-free sphere proved incorrect. As a result, to enforce the principle of legal freedom under the changed social conditions as they are perceived in the social-welfare model, it is necessary to “materialize existing rights and create new types of rights.’” (Between Facts and Norms, 400). In contrast to the liberal paradigm, which did not consider the various ways that capitalist societies, though they extend equal formal rights to all members, ultimately impoverish large groups of citizens and thereby significantly diminish the “use-value” of those citizens’ rights and freedoms, the welfare paradigm of law was based on a theory of society that was cognizant of this dynamic. The interpretations of the constitution produced under this new paradigm, then, tended to see constitutional rights and procedures as implying a re-distribution of material resources. 133 See Friedman’s Capitalism and Freedom, for instance. And see C.B. MacPherson’s classic Democratic Theory: Essays in Retrieval, chapter VII, for a compelling response to Friedman’s account. 196 Habermas describes the changes in constitutional interpretation which took place after the transition to the welfare paradigm in terms of a materialization of the law. By this phrase he means to point to the tendency of constitutional courts to interpret the constitution in such a way that the rights inscribed in it are taken to guarantee the possession of material and social resources for legal subjects. Historically, the rise of the welfare paradigm is connected with the development of the welfare state. Though Habermas recognizes that, in order to play the role which they must if the constitution is to actually realize its normative purpose, constitutional rights must be backed with material resources, he notes that the welfare paradigm, along with the liberal paradigm, has historically generated constitutional interpretations which stand in the way of the constitution actually enabling public communication and making it legally efficacious. The main problem with the welfare paradigm, on Habermas’s account, is that, at least historically speaking, the materialization of law ended up producing a situation in which legal officials, who were tasked with overseeing the redistribution of resources which the paradigm calls for, developed rules governing the conduct of their “clients” which diminished the autonomy of those legal subjects by strongly incentivizing particular forms of life (those compatible with the rules). But this diminishment of autonomy is a problem from the perspective of the overall normative purpose of the constitution insofar as the communicative aspirations of the constitution (at least as Habermas understands them) require that legal subjects enjoy a high degree of private autonomy (since this is a necessary condition for communication oriented to mutual understanding to take place). The welfare paradigm’s connection to the development of incentive structures which normalize behavior (in accordance with the rules propounded by administration officials), therefore, conflict with the constitution’s overall normative purpose. 197 As opposed to these historically dominant accounts, Habermas develops the “proceduralist paradigm” of law. In contrast to the liberal and welfare-state paradigms, the proceduralist paradigm does not amount to a fully fleshed out theory of social reality. Instead, it amounts to the claim that the normative purpose of the constitution is to enable public communication (which at least approximately realizes the ideals of communication oriented to mutual understanding) and to ensure that the public opinion which is produced through public communication can become legally efficacious. The proceduralist paradigm, then, should be understood as an expression of Habermas’s basic theory of the legitimacy-basis of constitutional- democratic legal systems. Formally speaking, what makes it different from the liberal and welfare-state paradigms is that it couples its account of the normative purpose of the constitution and laws with a much more flexible and open theory of social reality than those that are characteristic of the liberal or welfare paradigms. Indeed, in terms of guiding interpretation of constitutional rights, the proceduralist paradigm is grounded upon the “communication theory of society” (Between Facts and Norms, 437). This theoretical account of social reality differs from the liberal and materialist theories of society (which ground the liberal and welfare paradigms, respectively) insofar as it provides a normatively loaded account of the relationship of the legal system with other social sub-systems (e.g. the lifeworld and the economic system), but does not pre-judge the way that those related sub-systems will either facilitate or impede the connection between public communication processes and the legal system. Habermas writes: “The communication theory of society… conceives the constitutionally organized political system as one among several subsystems. This system can serve as 198 backup surety for problems of overall social integration. It does so through an interplay of institutionalized opinion-and will-formation with informal processes of public communication. The political system can succeed at this insofar as it is embedded, through a public sphere based in civil society, in a lifeworld context shaped by a liberal political culture and corresponding socialization patterns.” (Between Facts and Norms, 437). What this passage suggests is that the proceduralist paradigm makes use of the communication theory of society to provide constitutional interpreters with an organizing framework that can be used in reaching judgments about whether or not some element of actually-existing social reality is interfering with the desired connection between public communication and the legal system. In other words, the paradigm tells us that the political institutions which are tasked with interpreting the constitution must remain open to all available social theoretic insights about how different social sub-systems (e.g. the economic system) or elements of social reality might interfere with public communication processes and their connection to the legal system. In order for the constitutional-democratic legal system to be legitimate, on Habermas’s proceduralist account, the institutions or practices which it tasks with interpreting the meaning of constitutional procedures and rights must, on the basis of theoretically-informed insights, interpret the rights and procedures found in the constitution in such a way that they neutralize impediments to (1) the taking-place of public communication processes and (2) the connection of those processes with the shaping of the legal code. An evident strength of this paradigm is that it remains open to theoretical insights coming from various traditions. It does not dogmatically prescribe one account of society, as the liberal account did, but remains open to insights which 199 can be traced to various sources in its attempt to consider how constitutional rights and procedures must be interpreted if public communication is to take place and influence law. The main upshot of Habermas’s account of legal paradigms is that it allows Habermas to claim to have shown a way that constitutional democratic legal systems could overcome legitimacy-concerns having to do with whether or not they will be able to make constitutional rights and procedures concrete in such a way that public communication could be expected to both take place and influence, and thereby legitimate, the laws. If a constitutional-democratic legal system made use of a political institution (or a set of decision-making practices) which (1) was tasked with interpreting constitutional rights and procedures in instances of dispute about their meaning and rendering definitive, and legally binding, judgments about them, (2) made sense of its task in accordance with the understanding of the normative purpose of constitutional rights and procedures which is proposed by the proceduralist paradigm, and (3) could reasonably be expected to be capable of effectively applying the proceduralist paradigm when it was called upon to actually engage in constitutional interpretation (where this means that the institution would not only (a) understand its task to be ensuring that impediments to public communication and impediments to the connection between public communication and law were neutralized, but also would (b) be structured in such a way that it could be reasonably expected to succeed in identifying the relevant impediments and interpreting the constitution in such a way that (i) citizens would indeed possess the rights necessary for public communication of the relevant kind to take place, and (ii) political processes would indeed be appropriately organized to ensure that the outcome of public deliberation became legally efficacious), then we could say that the constitutional democratic legal system in question would be one that was likely to produce legitimate law, and therefore was itself legitimate, because the system would thereby both (2, 200 below) ensure that public communication (which approximately realized the norms of communication oriented to mutual understanding) could take place and (3, below) ensure that the output of public communication would be in a good position to become legally efficacious. Habermas describes these dual, legitimacy-generating, outcomes in terms of the establishment of an autonomous public sphere (2) and the establishment of democratic decision- making conditions necessary in order to ensure that communicatively-generated public opinion becomes legally effective (3). I turn now to offering some commentary on how Habermas describes these two ideal outcomes. (2) Habermas describes the way that the basic constitutional rights, if ably interpreted by an institution which adopted the proceduralist paradigm, would enable public communication to take place in terms of the establishment and protection of an “autonomous public sphere”. This famous spatial metaphor is intended to refer to the ability of citizens to make use of their voices in a public context (e.g. in communication about problems generated by the existing laws or communication about the way that the legal code ought to be changed to deal with some problem or to enable some collective action to take place). The conceptual couple of the public sphere, then, is the private sphere (the contexts in which individuals do not think of themselves as, or interact with one another in the capacity of, citizens but instead see themselves as private individuals who are not, at least for the moment, concerned with either questions about how the laws should be or other questions of general public interest). The way that Habermas thinks about the public sphere (and therefore also the way that he sees constitutional rights potentially working to enable and preserve its existence) is complex and requires some elaboration134. 134 For a good introduction to Habermas’s account of the public sphere, see Douglas Kellner’s Habermas, the Public Sphere, and Democracy: A Critical Intervention. 201 To begin with Habermas’s analysis of the public sphere itself, several key terms must be introduced and defined. The most important of these are ‘public sphere’, ‘civil society’, and ‘public opinion’. Habermas defines ‘public sphere’ in the following passage: “The public sphere can best be defined as a network for communicating information and points of view (i.e. opinions expressing affirmative or negative attitudes); the streams of communication are, in the process, filtered and synthesized in such a way that they coalesce into bundles of topically specified public opinions.” (Between Facts and Norms, 360). In this definition we see that, for Habermas, the public sphere refers to always-ongoing processes of public communication which are made possible by the constitutional rights described above. When the public sphere is basically healthy, meaning that the constitutional rights described above actually do function to enable members of society to engage in communication which basically approximates the presuppositions of communication oriented to mutual understanding, Habermas calls the public sphere “autonomous”. This is because, in that case, the public opinion (defined below) resulting from the public sphere has to be understood as the product of the participants in communication themselves. Habermas also distinguishes between different types of public sphere along topical lines. So, a public conversation about a work of art’s beauty (or lack thereof) could be said to be a contribution to the literary or artistic public sphere, whereas an act of public communication having to do primarily with political questions would be considered a contribution to the political public sphere. Again, what enables individuals to participate in these various conversations, ultimately, is the rights they possess to assemble, to speak freely (without fear of punishment), to make up their own minds about the topics with which they are concerned (freedom of 202 conscience), and to do other such things. Of course, these rights do not guarantee the existence of an autonomous or healthy public sphere, they only enable it. Indeed, in terms of analyzing the health (or autonomy) of an actually existing public sphere, mass media institutions, which obviously also play an important role in mediating public communication through their agenda- setting, information-sorting, and framing functions, are crucial. And, on top of this, public communication will not even take place unless members of the lifeworld are socialized into the commitments characteristic of a liberal political culture. However, although these topics are important, I cannot go into the massively complex considerations about the impact of the mass media or socialization on actually-existing public spheres (of actually existing constitutional democratic societies) here135. In the definition of the public sphere just given, Habermas also introduces the concept of public opinion. In Habermas’s usage, ‘public opinion’ refers to those beliefs and commitments which, through the participation of members of the lifeworld in public communication (i.e. through engaging in processes of “opinion-and will-formation” in the public sphere), become socially widespread and predominant136. Public opinion, then, can roughly be understood as an output of public communication processes. It is not the same as a description of the unconsidered initial beliefs of members of the lifeworld, but instead refers to those widely shared beliefs and 135 See Sonia Livingstone and Peter Lunt’s The mass media, democracy, and the public sphere for a good primer on this problem complex. Also see Manuel Castells’ Communication Power for a relatively recent overview of the state of communications theory and Castells interesting reflections on the relationship between mass media and public opinion. Cass Sunstein offers a pessimistic account of the prospects of the autonomous public sphere under conditions of digital networked media in his Neither Hayek nor Habermas. 136 To be precise, Habermas distinguishes between ‘public opinion’ and ‘public opinions’. The latter term refers to those diverse beliefs and commitments which are taken on by distinct members of the lifeworld through their individual participation in processes of public communication. The former term refers to those particular beliefs and commitments which become predominant through the same public communication processes. So ‘public opinion’, for Habermas, refers to those beliefs and commitments which become socially widespread and predominant through processes of public communication oriented to mutual understanding. 203 commitments of citizens which emerge through engagement in an autonomous public sphere (i.e. in processes of public communication oriented to mutual understanding137). Finally, Habermas also refers to “civil society”. By this concept he means to refer to the existence of certain semi-formally established elements of the public sphere. These are clubs, institutions, societies, loosely-organized social movements, and the like, which grow up in response to perceived social problems and develop frameworks for communication and planning directed at discerning effective and normatively justifiable solutions to those problems. They also, at least some of the time, engage in direct political agitation (e.g. protest movements) aimed at ensuring that the problems around which they are organized will be addressed or that their proposed solutions will be taken up by law-making authorities. In the various associations and interactions of civil society, then, the political public sphere finds its most organized form. Through participation in civil society (e.g. joining, or otherwise participating with, a group dedicated to understanding, or resolving, or otherwise responding to, some particular problem-complex, or beginning one), members of society are able to communicate with one another in a structured way about how political questions ought to be resolved. Frequently members of these groups will determine that the best way to arrive at a satisfactory resolution is through the use of administrative power (which must, itself, be directed 137 In Habermas’s own words: “In the public sphere, utterances are sorted according to issue and contribution, whereas the contributions are weighted by the affirmative versus negative responses they receive. Information and arguments are thus worked into focused opinions. What makes such “bundled” opinions into public opinion is both the controversial way which it comes about and the amount of approval that “carries” it. Public opinion is not representative in the statistical sense. It is not an aggregate of individually gathered, privately expressed opinions held by isolated persons. Hence, it must not be confused with survey results. Political opinion polls provide a certain reflection of “public opinion” only if they have been preceded by a focused public debate and a corresponding opinion- formation in a mobilized public sphere.” (Between Facts and Norms, 362). 204 by those legal officials who, through election or appointment, have been invested with the power to command it)138. As I have already suggested, in his description of these elements of the public sphere, Habermas makes it clear how he sees the constitutional rights sketched in section (1) enabling processes of public communication which approximately realize the counter-factual ideals of communication oriented to mutual understanding to take place. In short, the constitutional rights to assembly and speech (e.g. freedom of speech and conscience, freedom of religion and the broadest mutually realizable set of negative liberties), assuming that they are interpreted correctly by those institutions which are empowered by the legal system to apply them, enable members of society to both enjoy private autonomy and also to engage in public communication about any topic whatsoever. Coupled with other constitutionally guaranteed rights to bodily integrity, non-discrimination (and the like), these rights also ensure that this process of public communication will be an inclusive one (because freedom of speech and conscience will enable all who want to participate to do so) and a non-coercive one (because significant limits will be placed on the ability of individuals to harm or threaten one another such that attempts to coerce agreement will be minimized). Thus, we can begin to get a sense of how, exactly, Habermas sees constitutional rights enabling a process of large-scale public communication to take place. The autonomous public sphere, the existence of which these constitutional rights enable and protect, gives members of the public the opportunity to participate in public communication which approximately realizes the presuppositions of communication oriented to mutual 138 Habermas’s own description of civil society is the following: “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, distill 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.” (Between Facts and Norms, 367). 205 understanding. Thus, we now see how Habermas takes the system of constitutional rights to fulfill the first of its two normative purposes, enabling public communication to take place. However, as we have already noted, in order for Habermas to make good on his claim that constitutional democratic legal systems can redeem their claim to legitimacy, he must also show how the public opinion which is developed through the communication that takes place in the public sphere can reasonably be expected to become legally efficacious139. (3) Habermas identifies multiple processes which can lead the public opinion generated in the public sphere to become legally efficacious. Again, the reason this is important for Habermas is that, on his account, public communication itself cannot directly “program” the legal code in constitutional democratic societies140. Instead, in order to become legally effective, 139 Some commentators have found that this part of Habermas’s theory contains significant ambiguity. Indeed, sometimes Habermas seems to present the public sphere as wild, as a mere sensing mechanism which works to make legally-elected representatives aware of society-wide problems. These representatives, then, are placed in a position to generate solutions through their own communication processes. But the public sphere itself, on this reading, is too disorganized and anarchic for us to expect it to be able to render solutions to perceived problems. Sometimes, on the other hand, Habermas does seem to present the public sphere as capable of both identifying important problems and generating solutions to those problems. On this reading, those solutions, in turn, must be taken up by the legislators in order for the laws to be understood as legitimate. This is because, if they were not so-taken up, then there would be no reason to see the legal code as something which was shaped by public communication. In the introduction to chapter 8 of Between Facts and Norms, Habermas admits that he does indeed sometimes make the public sphere sound like a mere warning system. But he then adds that, from the perspective of democratic theory, it actually must be more than this. It also must ensure that the political system solves the problems which are identified in the public sphere and takes up the solutions to them developed in “civil society”, and also in the informal discourses which take place in the public sphere. To my mind, this makes it clear that Habermas’s account should be read as one on which public communication processes do indeed have to impact the shaping of the legal code in order for the laws produced by the system to be generally expected to be legitimate such that the legal system itself can also retain its legitimacy in the eyes of members of the public. Habermas writes: “Up to now, I have generally dealt with the public sphere as a communication structure rooted in the lifeworld through the associational network of civil society. I have described the political public sphere as a sounding board for problems that must be processed by the political system because they cannot be solved elsewhere. To this extent, the public sphere is a warning system with sensors that, though unspecialized, are sensitive throughout society. From the perspective of democratic theory, the public sphere must, in addition, amplify the pressure of problems, that is, not only detect and identify problems but also convincingly and influentially thematize them, furnish them with possible solutions, and dramatize them in such a way that they are taken up and dealt with by parliamentary complexes. Besides the “signal” function, there must be an effective problematization.” (Between Facts and Norms, 359). 140 This is in contrast to both liberal and civic-republican accounts of democracy. On the liberal account, democratic voting processes should be understood as enabling individual members of society to express their preferences 206 public opinion must become “communicative power”. That is, it must become effective in shaping the decisions made by legally empowered law-making authorities (e.g. members of Congress, in the American system)141. In Between Facts and Norms, Habermas identifies at least three ways (a-c, below) in which the transformation of public opinion into communicative power capable of influencing legislators (and therefore shaping the legal code) might take place. My description of these alternative routes is necessarily impressionistic. Though each of the different routes sketched below is interesting, space constraints prevent me from considering them in any further detail here. (a) The most direct path which public opinion might travel, on Habermas’s account, is through the path of elections. Because the constitutions of democratic societies contain basic rights which ensure not only that an autonomous public sphere will exist, but also specify certain political procedures which ensure that competing political parties will exist, and that those parties must compete to gain power in free elections (also guaranteed through a combination of constitutional rights and constitutionally enshrined procedures), political parties are incentivized to pay attention to the various problems and solutions which are identified in the public sphere (through supporting a would-be lawmaker or political party which most closely aligns with them). The legal code produced by those representatives, then, can be traced to the preferences held by the majority of the citizens. On the republican account, on the other hand, democratic decision-making processes express something like the unified will of the public. This will, in turn, is generated through public communication processes in which a shared ethical self- understanding can be worked out from initially divergent views. On Habermas’s account, the republican depiction of democratic decision-making processes is overly optimistic insofar as it does not pay sufficient attention to the deep pluralism which is characteristic of contemporary constitutional democracies. This pluralism makes the arrival at a shared ethical-self understanding on the part of the public impossible. 141 In Habermas’s own words: “… within the boundaries of the public sphere, or at least of a liberal public sphere, actors can acquire only influence, not political power. The influence of a public opinion generated more or less discursively, in open controversies, is certainly an empirical variable that can make a difference. But public influence is transformed into communicative power only after it passes through the filters of institutionalized procedures of democratic opinion-and will-formation and enters through parliamentary debates into legitimate lawmaking… Not influence per se, but influence transformed into communicative power, legitimates political decisions.” (Between Facts and Norms, 371). 207 (and especially in the organized communicative exchanges which take place in the civil society segment of the public sphere) and to both champion them in attempts to gain power via popular elections and to pass legislation which takes up the solutions. Thus, citizens of a constitutional democratic society should be able to see that, through participation in the public sphere and the use of their voting rights, and especially through participation in organized social movements which are definitive of civil society, the public opinion which they generate through public communication will, over time, be in a position to become legally efficacious (albeit not directly, but instead through the law-making activities of their elected representatives). (b) Throughout Between Facts and Norms, Habermas also repeatedly pays attention to the procedures of parliamentary debate. He nominates these as another reason to believe that legally empowered lawmakers will tend to pay attention to the public opinion generated in the public sphere. Because lawmakers will generally understand themselves (among other ways) to be tasked with solving social problems, and because the structure of the legislature is such that lawmakers can engage in communication with one another oriented to discovering the best solution to such problems, lawmakers will have an incentive to pay attention to the public sphere and consider whether or not the solutions proposed there (and the arguments given in favor of them) represent good solutions to society-wide problems. Thus, lawmakers may not even need the threat of being removed from power (via elections) to induce them to be responsive to public opinion when it comes to their development of the legal code. Indeed, at least under certain conditions, we should expect that legislators will treat the public sphere as an important source of arguments and proposals for regulating social life. Thus, the communication engaged in by members of the legal community will, once again, be in a position to influence the legal code. 208 (c) Related to this, Habermas also develops an account of the phenomena of “influence” which can be generated by social movements which themselves grow up in civil society. We might think of famous examples like the American Civil Rights movement here. In that case, the emergence of a social movement concerned with establishing civil rights (and making existing civil rights actually effective) for disenfranchised Black Americans became politically effective in no small part due to the emergence of charismatic and popular leaders who were able to marshal public opinion in society at large and to influence legally elected representatives. The skillful use, by the leaders of the movement who emerged, of the influence which they gained ensured that the problems being raised by the movement, along with (at least some of) the solutions proposed by the members of the movement, were taken up by the legal system and had an impact on the way that the legal code was shaped. In the case of social movements which have been successful enough in influencing public opinion to gain credibility in the eyes of legislators (who themselves have to manage relations with members of the public and can therefore be expected, at least under certain conditions, to want to appear to be on the side of popular movements concerned with social change), then, there is a further path for communication to travel the road to legal efficaciousness142. A main point to be seen about all three of these ways that Habermas nominates for public opinion to become politically effective is that they, just as well as the necessary conditions for the development of the public sphere, are constitutionally guaranteed through basic rights and constitutionally enshrined procedures. The most obvious basic right involved here is the right to 142 Though the example I’ve chosen here may suggest otherwise, Habermas also sees that influence, connecting up the public sphere with the legal system, can also be generated in less extraordinary ways. Interest groups which are formed in civil society, for instance, frequently pressure legislators to consider particular political proposals or to act or vote in certain ways. This suggests a more mundane path that public communication might travel to become legally efficacious. In short, through participation in civil society, members of the lifeworld can hope to influence the legal system by organizing collective action which influences the decisions of the members of that system. 209 participate in general elections or to assemble into political parties or informal social groups (which can become effective political movements). The constitutional rights which Habermas sees enabling public communication, then, go beyond establishing an autonomous public sphere and also do their duty in enabling processes of public communication to become effective by enabling members of the public to apply various forms of pressure to, and in some circumstances even direct control over, their legally empowered representatives143. For Habermas, the ultimate lesson is that, in well-functioning constitutional-democratic societies, the constitutional rights and constitutionally enshrined procedures which empower citizens to remove and replace the current class of law-making officials with those who will ensure that the result of public communication, public opinion, becomes legally effective in terms of reshaping the legal code, serve to ensure that public communication remains tied to the legal code such that the laws under which citizens live can be understood as traceable, in terms of their content, to their own communicative interactions. This feature of the laws in constitutional-democratic societies is what provides them their presumption of legitimacy and 143 In the following passage, Habermas makes clear that he does see constitutional rights playing both these roles. That is, they both enable public communication and structure the legal system such that the outcome of these communication processes can be expected to become legally efficacious. Habermas writes: “The constitution of this sphere [civil society] through basic rights provides some indicators for its social structure. Freedom of assembly and freedom of association, when linked with freedom of speech, define the scope for various types of associations and societies: for voluntary associations that intervene in the formation of public opinion, push topics of general interest, and act as advocates for neglected issues and underrepresented groups; for groups that are difficult to organize or that pursue cultural, religious, or humanitarian aims; and for ethical communities, religious denominations, and so on. Freedom of the press, radio, and television, as well as the right to engage in these areas, safeguards the media infrastructure of public communication; such liberties are thereby supposed to preserve an openness for competing opinions and a representative diversity of voices. The political system, which must remain sensitive to the influence of public opinion, is intertwined with the public sphere and civil society through the activity of political parties and general elections. This intermeshing [of political system and public sphere/civil society] is guaranteed by the right of parties to “collaborate” in the political will-formation of the people, as well as by the citizens’ active and passive voting rights and other participatory rights.” (Between Facts and Norms, 368). 210 what, ultimately, legitimates the constitutional-democratic legal system itself (on the grounds that it is a normatively tolerable means to the widely-shared end of producing legitimate law through communication oriented to mutual understanding). (4) Having now reviewed in more detail the way that Habermas sees constitutional rights working to enable public communication to both take place and become legally efficacious, we can say that we have arrived at a tolerably complete statement of Habermas’s reconstruction of the legitimacy-basis of constitutional democratic legal systems. Again, what makes these systems legitimate, for Habermas, is that they enable public communication to play the role that, as members of a rationalized lifeworld, citizens can be expected to see as appropriate. In short, because the constitutional rights and procedures of the constitutional democratic legal system, assuming that they are interpreted correctly, enable public communication (which at least approximately realizes the presuppositions of communication oriented to mutual understanding) to take place and to shape the legal code, members of society can see the laws under which they live, the normative regulations which structure their interactions with one another, as the product of an always-ongoing public communication process. But since, from their practical commitment to communication oriented to mutual understanding (which Habermas establishes in working out UP), they must be expected to believe that this is the appropriate way to determine how their interactions should be regulated, members of constitutional-democratic legal communities should not be expected to object to the legitimacy of this form of legal system. (5) Before going on to provide a further reconstruction, this time of Habermas’s thinking about how strong judicial review need not compromise the legitimacy of the constitutional democratic legal system (and, indeed, may even help to secure the system’s legitimacy), I must make it clear that Habermas significantly complicates the reconstructive picture which I have 211 presented so far in this chapter in Between Facts and Norms (especially in chapters 7 and 8 of that text). There Habermas introduces what he calls a “disillusioning” sociological perspective that suggests that the relatively ideal conditions which he is assuming in his reconstructive analysis of the legitimacy-basis of the constitutional-democratic legal system are frequently not met in the societies which make use of those systems. One obvious example of this, which we have already seen in our brief review of Amy Allen’s critique of Habermas’s account, is that culturally widespread racism, sexism, and homophobia (among others pernicious ideologies) prevent public communication processes from coming anywhere close to realizing the norms of communication oriented to mutual understanding. Furthermore, the capitalist economic system systematically oppresses and, to a greater or lesser degree, impoverishes a large sub-set of the population in most constitutional democratic societies. This, too, prevents the communication which takes place in the public sphere from being able to be thought of as coming anywhere close to realizing the norms of communication oriented to mutual understanding144. Both of these elements of social reality – which we can broadly think about in terms of cultural and systemic impediments to communication oriented to mutual understanding – make it possible that the proceduralist account of the constitution is hopelessly optimistic. Habermas recognizes that the two political realities to which I have just referred threaten to make a mockery of his legitimation of constitutional-democratic legal systems. For, if public communication processes cannot plausibly be thought of as approximating the norms of 144 Several commentators have taken Habermas to task on the grounds that his reconstruction of the constitutional democratic legal system is ideological because it fails to note that the system of rights cannot be fully realized within the confines of the capitalist economic system. Because capitalism works to systematically disempower a large number of citizens, the legal protections which are supposed to enable the development of an autonomous public sphere are insufficiently powerful to play this role. For a good critical account which makes this kind of argument, see Jeff Noonan’s Modernization, Rights, and Democratic Society: The Limits of Habermas’s Discourse Theory. Also see John Sitton’s Habermas and Contemporary Society. 212 communication oriented to mutual understanding, then constitutional-democratic legal systems, despite their impressive, constitutionally enshrined, systems of rights and democratic procedures, will not be able to claim to be legitimate. This is because, under these conditions, the legal system would not be able to be thought of as succeeding in ensuring that the laws which regulate social interactions between citizens would be traceable to processes of public communication oriented to mutual understanding, because those processes of public communication would either not take place or could not be considered to come anywhere near approximating the norms of communication oriented to mutual understanding. I have already suggested, above, the way that Habermas attempts to respond to this problem. What is supposed to ensure that the constitutional rights and procedures (which are themselves supposed to ensure that communication oriented to mutual understanding can take place and become legally efficacious) actually play the normative role that Habermas assigns to them, on Habermas’s account, are those institutions of law-making (i.e. the legislative process) and constitutional interpretation which, respectively, amend the legal code to resolve social problems (usually identified first in the public sphere) and resolve constitutional disputes by applying constitutional rights and procedures to concrete circumstances and thereby making them effective in ensuring that communication takes place and works to shape the legal code. Habermas, as we have seen, discusses the latter in terms of the effective application of the proceduralist legal paradigm to questions of constitutional interpretation. This said, it is evident that Habermas’s ability to show that constitutional-democratic legal systems should be taken to be legitimate depends, at least in part, on his ability to show that those systems can rely on some institution or practice of constitutional interpretation which can be expected to apply the proceduralist paradigm reasonably well over time such that members of the lifeworld could 213 reasonably expect that impediments to the realization of an autonomous public sphere would gradually be done away with. Although Habermas does not claim that constitutional courts exercising strong judicial review are the only realizable solution to the problem of constitutional interpretation, he does defend them as a solution which can help to shore up the legitimacy of constitutional-democratic legal systems in the face of cultural and systemic impediments to public communication. Under the right conditions, constitutional courts can, on his account, help to ensure that the constitutional rights which the constitutional-democratic legal system makes use of are such that they actually deal with the problems we have just identified: pernicious cultural ideologies and the dis-empowering and oppressive effects of the capitalist economic system. I turn to unpacking the conditions under which Habermas believes that constitutional courts are fit to serve in this role, such that constitutional-democratic legal systems do not necessarily, through making use of them, further diminish their claim to legitimacy (and may actually help to bolster it), now. 3.1.4 Habermas’s Legitimation of Strong Judicial Review in Constitutional Democratic Legal Systems Having now explained in some detail the way that Habermas reconstructs the legitimacy- basis of constitutional democratic legal systems, we are finally in a position to reconstruct and critically examine Habermas’s argument that the use of strong judicial review by constitutional democratic legal systems does not necessarily undermine the legitimacy of those systems (and, indeed, might even be an important element in bolstering those systems’ legitimacy)145. 145 Habermas explicitly makes the first claim in chapter 6 of Between Facts and Norms. There, he writes: “… a constitutional court guided by a proceduralist understanding of the constitution does not have to overdraw on its legitimation credit.” (Between Facts and Norms, 279). 214 As we have already seen, constitutional courts are tasked with interpreting constitutionally enshrined rights and procedures and, through the application of their interpretations to a given dispute about the meaning of the constitution, reaching judgments about whether or not acts of legislation or administrative actions violate the constitutional higher law. As we have also already seen, constitutional courts which are empowered to engage in strong judicial review are able to go beyond this and to make their interpretation of the constitution effective by using it to nullify acts of the legislature or the administration (in the name of protecting constitutionally established rights and procedures). Because, as I have already established, Habermas believes that, if the constitutional democratic legal system is going to be taken to be legitimate, constitutional rights must both (1) work to secure for members of society the ability to engage in public communication processes which approximately realize the ideal presuppositions of communication oriented to mutual understanding and (2) maintain the democratic procedures which ensure that communicatively generated public opinion is always in a position to influence the legal system, he must show that constitutional courts which are empowered to exercise strong judicial review should be expected to interpret constitutional rights in such a way that the rights which the court claims that members of the public are constitutionally guaranteed, and the procedures which the court claims that the constitution prescribes, actually ensure that public communication (which approximately realizes the presuppositions of communication oriented to mutual understanding) will be able to take place, and its output, public opinion, will be able to become legally efficacious. If, on examination, the courts could not be expected to interpret the constitution in this way, then constitutional- democratic legal systems which made use of strong judicial review would face legitimacy problems because, in that case, the courts would have to be understood as compromising the 215 ability of the legal system to ensure that public deliberation was possible by potentially blocking the possession of some basic rights necessary in order for public deliberation to take place and to become legally efficacious. It follows from this that, on Habermas’s account, the only time a constitutional democratic legal system with a constitutional court exercising strong judicial review can avoid legitimacy problems is when that court can reasonably be expected to interpret the (usually somewhat vague and ambiguous) rights inscribed in the constitution in such a way that they actually do function to (1) shield members of society from coercion and to ensure that they are capable of participating in processes of public deliberation which approximately realize the ideal presuppositions of communication oriented to mutual understanding and (2) make the public opinion generated through communication undertaken in the public sphere legally efficacious146. Because he is a defender of the possibility that at least some constitutional democratic legal systems with strong judicial review can avoid thereby taking on additional legitimacy problems, Habermas owes us an account of the conditions under which we could reasonably expect constitutional courts to function in the required way. He provides us with the required 146 Although the way that I have just presented Habermas’s description of the constitutional court’s role may make it seem as though he is committed to the position that, in order to avoid legitimacy problems, the court must put aside questions about the plain meaning of the constitutional text when it decides constitutional questions in favor of simply asking what decision would best serve the goal of ensuring that members of the public possess the constitutional rights necessary in order for public communication of the relevant sort to take place and to become legally efficacious, Habermas actually maintains that courts should not depart too significantly from the prima facie meaning of the constitution in resolving constitutional questions. His view is that, in constitutional-democratic legal systems which are candidates for being thought of as legitimate, the constitution itself will, in its various clauses, manifest “a piece of existing reason” (by which he means to refer to a commitment to settling legal disputes, and shaping the legal code, reasonably) which should enable members of the court to arrive at interpretations of the text which both ensure that members of the public will possess the requisite rights and can be shown to be tied to the text of the constitution (and subsequent acts of legislation). Thus, in holding that the constitutional court must play the role that he assigns to it, Habermas is not holding that the court should ignore the constitutional text or the relevant legal history. He is, instead, presuming that the constitutional text and legal-historical background will be sufficiently rich to allow the court to arrive at constitutional interpretations which would both be plausibly textually grounded and be such as to work to enable public communication to take place and to become legally efficacious. I say more about this below in my presentation of Dworkin’s constructivist account of legal interpretation. 216 account in chapters 5 and 6 of Between Facts and Norms. There he claims that there are two main conditions which must be met in order for constitutional courts to be well-positioned to resolve constitutional disputes in such a way that the legal system’s use of strong judicial review would not generate legitimacy problems. First, the courts must possess a proceduralist understanding of both the constitution and of the court’s own role in interpreting it. Second, the courts must be (1) structured and (2) situated in such a way that ensures that the best available arguments about how the constitution ought to be interpreted are made available to it, argued for in front of it by capable representatives, and critically considered by it. As part of this latter condition, the court must have access to (i.e. be situated within) a robust legal public sphere in which competing arguments can be refined over the course of time. I will now turn to explaining the reasons that Habermas believes that a court which met both of these conditions could be expected to interpret the constitution in such a way that the legal system of which it was a part could be expected to do a reasonably good job of offering citizens the rights necessary in order for public communication to take place and for public opinion to become legally efficacious such that the constitutional-democratic legal system in question would not have its legitimacy compromised by the use of strong judicial review. 3.1.4.1 Proper (Proceduralist) Self-Understanding The first condition which Habermas claims that constitutional courts must meet in order to avoid compromising the legitimacy of the legal system is that they (or, more exactly, their members) must possess a “proceduralist self-understanding”. As I have already suggested in my brief discussion of legal paradigms, what this means (among other things), for Habermas, is to possess both a certain view about the normative purpose of the constitution itself and a certain view about the proper role of the court in interpreting it. First, on the proceduralist account, the 217 purpose of the rights and procedures which are contained in the constitution is to ensure that processes of public communication which approximately realize the ideal presuppositions of public communication will (1) always be able to take place and (2) work to influence the content and application of the legal code. Second, on the proceduralist account, the proper role of a constitutional court empowered to engage in strong judicial review is to interpret the constitution in such a way that the rights which are contained in it do come to actually perform these functions (i.e. do come to actually make public communication of the relevant type possible and to make its outcome, public opinion, legally efficacious)147. Meeting this requirement requires members of the court to have access to sophisticated social theories which they can use to identify potential impediments to the existence of the requisite form of public communication and its connection with the legal system (e.g. theories of culturally embedded power relationships like those Amy Allen relied on in developing her critique of Habermas’s social theory). Before I say something more about why Habermas thinks that the members of a constitutional court must possess a proceduralist self-understanding in order not to compromise the legitimacy of the legal system, I will first say a few words about the method of interpretation which Habermas believes that a court with a proceduralist self-understanding could adopt if it wished to succeed in playing its role. In working out this account of interpretation, Habermas draws heavily on Ronald Dworkin’s constructivist account of judicial interpretation. Indeed, at the end of the day, Habermas’s account can be seen as an intersubjectivistic reworking of 147 As I suggested in my discussion of the proceduralist paradigm, part of the way that Habermas conceptualizes this is in terms of maintaining flexibility about the question of whether a liberal or a welfare-materialist reading of the constitution, and especially of the concept of freedom, would better serve the goal of ensuring that the constitution realizes its normative purpose. 218 Dworkin’s constructivistic account, one which shows how a constructivist methodology could be used in the service of a proceduralist practice of constitutional adjudication. 3.1.4.1.1 Ronald Dworkin’s Constructivist Account of Judicial Interpretation Probably Dworkin’s best-known contribution to legal theory is his constructivist account of judicial interpretation (also sometimes called “the moral reading” account). Dworkin developed his unique and influential approach in several works148. He initially conceived his project as developing an alternative to the positivist account of law developed by H.L.A. Hart. One famous statement of his position can be found in Law’s Empire. There Dworkin used the example of chain-novels to explain how he believed that judges ought to interpret the constitution. To make a long story short, Dworkin asks us to imagine that we have been tasked, along with several other people, to produce a coherent and high-quality chain-novel. Such novels are written by a series of authors who conceive of the general nature of the novel in advance of contributing to its writing. For instance, if the novel is a murder mystery, the authors agree to write the novel so that it will function as a murder mystery. That is, they begin, and continuously orient, their shared writing process by coming to a common understanding of the general point or form of the novel, the general end toward which it should always be advancing. Given this shared understanding, when one of the authors in our scenario is tasked with adding to the novel, he or she does not simply start writing from scratch. Instead, on Dworkin’s account, the author can be expected to undertake a review of what previous authors have written so far and to attempt to see how what they have already written might constitute a murder- 148 For a good, short, article summarizing (and critically interrogating) Dworkin’s constructivist theory of constitutional interpretation, see Gregory Bassham’s Freedom’s Poltiics: A Review Essay of Ronald Dworkin’s Freedom’s Law: The Moral Reading of the American Constitution. See Dworkin’s A Matter of Principle, Taking Rights Seriously, Freedom’s Law, and Law’s Empire. 219 mystery in process. That is, the author can be expected to try to understand how previous authors have contributed to the overall project of writing a murder mystery. Furthermore, the author must, so far as possible, forego radically revising what previous authors have written. He or she must, that is, develop the best possible interpretation of what the previous authors have written, given their shared understanding of what the novel is fundamentally about, and continue the story with this shared understanding in mind. Only then will the shared project of writing the novel stand a chance of producing a novel which actually functions as a murder-mystery. Now, for Dworkin, judicial interpretation of constitutional rights and procedures should be, and be understood by the members of the public as, an essentially analogous process. Judges must arrive at an understanding of the overall point, the general normative-political project, of the constitution which they interpret. And they must be guided in their interpretive decisions about the meaning of the procedures and rights contained in the constitution by this understanding of the main point or purpose of the document. They must also make sense of the previous interpretive decisions made by other judges by thinking of them as prior attempts to interpret the constitution in accordance with this understanding of the constitution’s overall normative purpose. Their further contribution in interpreting the constitution then also must, so far as it is possible, cohere with these previous interpretations. The judge should see his or her activity, then, as part of a collaborative effort aimed at making constitutional law the best possible realization of the overall normative project which the judge attributes to the constitution itself. Dworkin’s philosophy of legal interpretation is attractive to Habermas for at least two reasons. First, by conceiving of legal interpretation as a process which requires judges to attempt to achieve as much consistency as possible with the interpretative efforts of judges who have 220 interpreted the constitution previously, Dworkin’s account, if it were taken up by members of a constitutional court as a philosophy of interpretation, would prevent constitutional interpretation from becoming an activity which would result in frequent changes in the meaning of the constitution (i.e. it would encourage judges, so far as possible, not to arrive at interpretations of the constitution which fundamentally disagree with prior, legally established, interpretations). This is important, for Habermas, because he correctly sees that, from a practical perspective, constitutional law can only effectively function if the meaning of constitutional rights and prescriptions is relatively predictable (because it is only in this case that members of society can know what to expect from the legal system and can therefore develop plans of action which accord with the law). The second reason that Dworkin’s account is important for Habermas is because it provides Habermas with an answer to highly popular accounts of judicial interpretation, like Antonin Scalia’s originalism (briefly discussed in chapter 1), which hold that judges must, in developing interpretations of the constitution, be guided primarily by an understanding of the expectations of the framers of the constitution. Habermas needs to avoid interpretive approaches like these in order for the constitution to be able to do the work that he requires of it since, if the constitution were to be interpreted as a set of positive prescriptions which meant only what the framers expected them to mean, then the rights contained within the constitution could not be interpreted in the light of ongoing learning-processes which can be expected, in time, to reveal many of the beliefs and general perspectives of the framers’ generation to be partial (and in some cases extremely prejudicial and unreasonable). But, in that case, the rights established in the constitution could not reasonably be expected to work to shield citizens from newly-discovered threats to their ability to participate in public communication processes, because the conceptions 221 of citizenry and popular government which the constitutional framers were working with were limited by their historical-cultural circumstances in such a way that they did not conceive of forms of oppression and coercion which are quite significant in contemporary eyes. But, then, if the meaning of constitutional rights and procedures had to be set in accordance with the often- benighted expectations of the framers, there would plainly be no reason to expect constitutional rights and procedures to function as they must if they are to work to preserve the legitimacy of the constitutional-democratic legal system. Dworkin’s approach is thus attractive to Habermas because it gives him a way to claim that judges can find in the constitution not a particular set of invariant rules, but instead a political project, the realization of the set of rights necessary for communicative control of the legal code, which itself can be the basis for an interpretation of basic rights. In short, judges can interpret constitutional rights and procedures not in light of the expectations of the framers, but in light of the overall normative goal, or political project, which the constitution is evidently directed at achieving. This allows them to depart from the expectations of the framers and to find in the constitution those rights which are necessary for public communication to take place and to become legally efficacious (if they are working with a proceduralist account of the political- normative purpose of the constitution). Thus, Habermas maintains that members of a constitutional court, if they are to avoid compromising the legitimacy of the constitutional- democratic legal system, ought to understand themselves as Dworkin’s judges would – as being tasked with interpreting the constitution in accordance with the political project which the constitution implies in the various rights and procedures which the constitution enshrines (but which is richer than those clauses such that it can be said to confer rights upon citizens, and prescribe procedures for the political process, which are not explicitly stated in the document). 222 Habermas makes it clear that my reading of his position, on which he believes that judicial decisions must satisfy both the need for legal certainty and the need for rational defensibility, is correct in the following passage, in which he is reflecting on the dual roles which law must play in order to be effective in constitutional-democratic societies. “We have already seen how the tension between facticity and validity is inherent in the category of law itself and appears in the two dimensions of legal validity. On the one hand, established law guarantees the enforcement of legally expected behavior and therewith the certainty of law. On the other hand, rational procedures for making and applying law promise to legitimate the expectations that are stabilized in this way; the norms deserve legal obedience. Such legitimacy should allow a law-abiding behavior that, based on respect for the law, involves more than sheer compliance. Both guarantees, certainty and legitimacy, must be simultaneously redeemed at the level of judicial decision making… In order to fulfill the socially integrative function of the legal order and the legitimacy claim of law, court rulings must satisfy simultaneously the conditions of consistent decision making and rational acceptability.” (Between Facts and Norms, 198). Once Habermas has identified Dworkin’s constructivism as a workable philosophy of judicial interpretation (but with certain revisions, which I will describe below), he believes that he can maintain that, if members of the court were actually to adopt a constructivist approach, and if they were also to maintain an understanding of the constitution as inaugurating the sort of political project which the proceduralist paradigm suggests (i.e. if the constitution was understood by the members of the court as being directed at achieving a political situation in 223 which individual citizens were given the rights necessary to participate in public processes of deliberation which roughly accorded with the ideal presuppositions of communication oriented to mutual understanding, that is ideals of maximum inclusion, equal standing, non-coercion, and the formation of uncoerced consensus), then judges would be at least somewhat likely to interpret the constitution in such a way that citizens would be likely to possess the rights which they would have to possess in order for this form of public communication to both take place and become legally efficacious. This would be because, in that case, the members of the court would understand arriving at such interpretations as their task. So, since it is (at least usually) reasonable to believe that the first step in making progress toward some goal (even if the goal is ultimately unattainable) is adopting that goal as one’s own, judges would, because they would have at least taken the first step, be that much more likely to interpret the constitution in such a way that it would reserve for citizens the relevant rights (and maintain the relevant political procedures). 3.1.4.1.2 Habermas’s Critique of Dworkin’s Monological Approach One element of Dworkin’s approach to judicial interpretation which Habermas finds problematic, however, is its “monological” character. Indeed, on Habermas’s telling, Dworkin’s description of judicial interpretation does not sufficiently consider the most important reason that we might believe that members of a constitutional court would be able to produce compelling constructivist-proceduralist interpretations of the constitution. In short, Habermas believes that it is the combination of the deliberative structure typical of constitutional courts, and their being situated within a robust legal public sphere (which produces highly sophisticated opinions on constitutional questions), that makes it possible for us to imagine that a court characterized by a proceduralist self-understanding (where this means that at least most of the members of the court 224 adopt something like the proceduralist paradigm) might be able to actually develop constructivist interpretations of the constitution which would ensure that constitutional rights and procedures would consistently enable public communication (of the right sort) to both take place and to become legally efficacious. For this reason, we can say that Habermas, though he both adopts Dworkin’s general constructivist theory of the constitution and finds his theory of judicial interpretation useful, insists that we pay attention to the intersubjective, communicative, elements typical of constitutional-court decision-making if we want to find a way to show that constitutional courts could render plausible constructivist interpretations of the constitution from the proceduralist perspective. Habermas’s lays out his critique of Dworkin in chapters 5 and 6 of Between Facts and Norms. There Habermas explicitly tells us that Dworkin’s “solipsistic” account, because it places too heavy a burden on individual judges, cannot explain how judges could produce proceduralist- constructivist interpretations of the constitution (i.e. constructivist interpretations which attribute a proceduralist purpose to the constitution) that members of the lifeworld could expect to be correct. However, if we conceptualize judicial decision-making as a communicative, argumentative, practice (whereby members of the court understand themselves as being in dialogue, argumentative and otherwise, with participants in the legal public sphere, as well as one another), then we may be able to see how such interpretations could reasonably be expected to be correct. In Habermas’s own words: “To justify … the premises of a decision, Dworkin calls for a comprehensive theory that, as we have seen, overtaxes the solipsistic efforts of the individual judge. This raises the question whether the ideal demands on the postulated theory might not be translated into ideal demands on a cooperative procedure of theory 225 formation, that is, demands on a legal discourse that takes into account both the regulative ideal of single right decisions and the fallibility of actual decision making. A discourse theory of law, which ties the rational acceptability of judicial decisions not only to the quality of arguments but also to the structure of the argumentative process, might not solve this problem, but it at least takes it seriously. Such a theory relies on a strong concept of procedural rationality that locates the properties constitutive of a decision’s validity not only in the logicosemantic dimensions of constructing arguments and connecting statements but also in the pragmatic dimension of the justification process itself.” (Between Facts and Norms, 226). Summing up, we can say that, at this point, Habermas has, in Dworkin’s constructivism, identified a method of constitutional interpretation which, if he could show that members of the court (operating with a proceduralist understanding of the constitution) should, at least under some conditions, be able to apply it successfully, would render the claim that strong judicial review need not cause legitimacy problems for constitutional-democratic legal systems plausible. Indeed, members of a constitutional court who adopted Dworkin’s constructivism and also held a proceduralist account of the normative-political purpose of the constitution would have to be expected to see as one of their goals both identifying existing cultural and systemic impediments to public communication and arriving at interpretations of constitutional rights and procedures which, so far as possible (without diverging so extensively from established precedent that they produced overwhelming constitutional confusion), work to neutralize them. They would thereby be committed to bringing existing public communication processes closer to realizing the norms of communication oriented to mutual understanding. Thus, if Habermas could indeed identify 226 conditions under which we should expect members of a constitutional court to be able to carry out this constructivist-proceduralist practice of constitutional interpretation plausibly well, he would have gone a long way toward showing that, at least under certain conditions, the use of strong judicial review would not harm the legitimacy status of constitutional democratic legal systems. 3.1.4.2 Proper Structure and Situation The main reason that Habermas believes that judges who possess a proceduralist self- understanding might be able to be successful in their attempts to develop constructivist interpretations of the constitution is that he believes that the members of the court can, at least under some circumstances, (1) gain an appreciation of the expert opinions which are generated in a robust legal public sphere, and (2) rely upon the structure of courtroom proceedings, in order to augment their critical power as constitutional interpreters by both ensuring that they are aware of the most sophisticated (and best) arguments about constitutional interpretation and social theory which have been developed in the legal public sphere at a given time, and by ensuring that they have a good appreciation of the particular elements of the constitutional controversy which they are tasked with resolving. It is important to appreciate at the outset that, by making this claim, I am not claiming that Habermas takes the members of a constitutional court to possess wisdom or intelligence (or, indeed, any other personal characteristic) by virtue of which they are to be considered more likely than any other member of society to adjudge constitutional disputes correctly (from the proceduralist perspective). If this were indeed Habermas’s position, then he could justly be interpreted as advocating something like a philosopher-king account of the legitimacy of strong judicial review. But this is not his position. 227 What I mean to suggest in the following, instead, is that Habermas believes that judges are, if certain conditions obtain, in a good position to resolve constitutional controversies correctly149 (from the perspective of a proceduralist theory of law), because they are (1) granted the time, leisure, and material support necessary to gain a familiarity with the complex legal discourses that are carried out in the legal public sphere and (2) because they can rely on a certain, highly structured, set of legal procedures which work to ensure that they are well- informed about the most developed arguments which bear upon a particular constitutional dispute. Habermas’s account does not, therefore, attribute special virtue to the members of a constitutional court. It does not maintain that judges are, as Learned Hand forcefully denied, to be trusted to resolve constitutional disputes because they are the best, or the wisest, among us. It focuses, instead, on the way that the members of a constitutional court might, by virtue of the court’s situation (relative to the legal public sphere) and procedures, be enabled to produce apt constructivist-proceduralist constitutional interpretations. To understand why Habermas thinks that these two conditions (access to a robust legal public sphere and use of certain courtroom proceedings) would enable judges who possess a proceduralist self-understanding to resolve constitutional disputes in such a way that the rights and procedures contained in the constitution could enable public communication processes to take place and to become legally efficacious, we need to consider them closely. (1) To begin with the legal public sphere, according to Habermas, when the members of a constitutional court are faced with determining whether or not some law or administrative action 149 What it would mean to resolve constitutional controversies correctly from the perspective a proceduralist theory of law is to resolve controversies about what the constitution means in such a way that the constitution ends up doing the work which, on the proceduralist account, it is supposed to do. This, as we have seen, involves ensuring that members of the public possess the rights necessary to engage in communication oriented to mutual understanding about how the legal system should respond to social problems. It also involves possessing the rights necessary in order to ensure that the outcome of public communication, public opinion, impacts the legal system (such that we can understand the laws under which we live to be responsive to public communication processes). 228 violates the constitution, they need not, as Dworkin’s model seemed to suggest, resolve the question through monological reflection (Between Facts and Norms, 226). Instead, if the requisite pre-conditions obtain, judges may seek to resolve the interpretive questions which they are tasked with answering by engaging in a wide-ranging process of research, dialogue, and critical reflection which is made possible (among other things) by the existence of a legal public sphere (Between Facts and Norms, 234). As I hope is clear given the definition of ‘public sphere’ provided above, when I refer to the legal public sphere, I am referring to the various discourses about the meaning of constitutional rights and proposed laws or administrative actions which are institutionalized in the academic world of peer-reviewed journals and scholarly inquiry, in the political public sphere of individual citizens who interact with one another and further competing arguments about such questions (making use of institutions like the free press to communicate across wide-distances), and in specialized discourses about the particular topic areas that proposed legislation or administrative action would impact (undertaken primarily by the social movements which Habermas locates in civil society). The complex discourse carried on in the legal public sphere can ultimately be understood, on Habermas’s account, as a highly mediated form of public communication (insofar as, at least in constitutional-democracies, as defined above, all members of society are, in principle, allowed to participate in it; though, in practice, the material and formal barriers to participation, may be quite high). Furthermore, members of constitutional courts can gain an understanding of the debates which are always-ongoing in the legal public sphere, including an appreciation of emerging consensuses (i.e. well-solidified public opinion) about these topics because the adjudicative practice of constitutional courts is characteristically structured in such a way that 229 highly-skilled advocates of the various competing positions involved in a constitutional controversy will be selected to serve as effective representatives of the best arguments which have developed in the legal public sphere (see below for comments on the structure of courtroom proceedings). In Habermas’s words, the “legal discourses” of the legal public sphere are made into “components of courtroom proceedings” (Between Facts and Norms, 234)150. For Habermas, if this sort of structural connection between the court and the legal public sphere obtains, then the members of the court can gain an overview of the debates, and an appreciation of the public opinion, expert (meaning the public opinion which issues forth from institutionalized forms of constitutional reflection, for instance scholarly academic work) and otherwise (meaning the public opinion which issues forth from less rigorously institutionalized processes of public communication, for instance communication about constitutional interpretation located in the editorial pages of newspapers), which existing communicative processes generate. And this, in turn, allows the members of the court to plausibly claim that they are in touch with the always-ongoing processes of public communication about questions of how the constitution should be interpreted. Therefore, members of the court, if they adopt a proceduralist self-understanding, can plausibly claim to have some insight into how the constitution should be interpreted if the rights and procedures inscribed within it are to function as the proceduralists claim that they should (i.e. if they are to succeed in enabling public 150 In the American system, the connection between the legal public sphere and the Supreme Court is maintained in various ways. Advocates who argue before the Court can be expected to have recourse to the legal public sphere in identifying and refining the most convincing arguments in favor of, or against, some particular constitutional interpretation. The Court also is connected with the legal public sphere through the filing of amicus briefs, which allow parties not directly involved in the case at issue to make the Court aware of various arguments (or other important information) about the case at issue. Joseph Kearney and Thomas Merrill investigate the relationship between amicus briefs and the Supreme Court’s jurisprudence in their joint work, The Influence of the Amicus Curiae Briefs on the Supreme Court. 230 communication processes to (i) come even closer to realizing the presuppositions of communication oriented to mutual understanding and (ii) become legally efficacious). Again, the members of the court can claim to have this insight precisely because, through surveying the public opinion, expert and otherwise, generated in the legal public sphere, they can gain a sense of how public communication about the relevant questions, much of which is admittedly carried out in highly specialized academic journals or in other forums which have a relatively high bar for participation, has played out. And, as has been said already, in a rationalized lifeworld, in which there is a generalized commitment to the idea that public communication is the process that should be used to settle disputed questions, public communication processes must appear to be the appropriate practice to use to determine which claims are true or normatively correct. This means that members of the court, by virtue of the various factors which enable them to become aware of the complex debates being carried out in the legal public sphere (in communicative exchanges that are, in principle at least, open to all), could plausibly claim to be in a good position to resolve questions of constitutional interpretation correctly because they would have an understanding of the public opinion which those public communication processes which have actually taken place have generated. On this basis the members of the court could plausibly claim that their decision-making has been open to input and revision in accordance with public communication processes and that it therefore should be seen as a good surrogate for large-scale processes of public communication (which themselves are too cumbersome and time-consuming to be of regular use in resolving constitutional disputes) when it comes to arriving at proceduralist interpretations of the constitution. 231 Habermas’s own words give evidence that my reading of his position is correct. Consider the following two passages in which Habermas is reflecting on the legitimacy of judicial decision-making in general. “Like democratic procedures in the area of legislation, rules of court procedure in the area of legal application are meant to compensate for the fallibility and decisional uncertainty resulting from the fact that the demanding communicative presuppositions of rational discourses can only be approximately fulfilled.” (Between Facts and Norms, 234) & “…ideal demands on the procedure of argumentation must be harmonized with the restrictions imposed by the factual need for regulation. Law must once again be applied to itself in the form of organizational norms, not just to create official powers of adjudication, but to set up legal discourses as components of courtroom proceedings. Rules of court procedure institutionalize judicial decision making in such a way that the judgment and its justification can be considered the outcome of an argumentation game governed by a special program.” (Between Facts and Norms, 234). In both of the above passages Habermas points out that judicial decision-making, if it is not to produce legitimacy problems for the legal system, must, through adopting particular practices (e.g. procedural rules which ensure that the various complex arguments which are relevant to resolving the constitutional issue in question are presented to the court by skilled advocates), ensure that the decisions ultimately reached by the justices are influenced by the legal discourses (i.e. specialized public communication processes) which are always ongoing in 232 the legal public sphere. This does not mean that members of the court would, on Habermas’s account, resolve constitutional questions by inquiring into how “the people” want the relevant constitutional disputes to be resolved at any given moment. It means, instead, that they could claim to be in a good position to allow their decision-making processes to be influenced by those arguments which have been developed in the legal public sphere. Assuming that constitutional courts establish the relevant practices, then, and assuming that the members of the court remain open to being convinced by novel arguments, we can plausibly find, in the decisions made by the courts, an admittedly indirect, but nonetheless existing, connection with actually ongoing public communication processes. On this basis members of the lifeworld should be able to maintain the expectation that the decisions reached by constitutional courts will be reasonable, because these decisions can be understood as traceable, however indirectly, to public communication processes, and public communication processes, as I have already shown, are understood by members of the lifeworld as uniquely appropriate for resolving questions (whether about some claim’s truth or normative correctness) correctly. Thus, a court which set out to resolve a constitutional dispute in accordance with a proceduralist understanding of the constitution could claim to be in a good position to arrive at a correct resolution to the constitutional question because of its openness to insights generated through public communication processes and its ability to gain an appreciation for, and to apply critical scrutiny to, the arguments developed in such processes. (2) Other elements of the rules of courtroom procedure also figure into Habermas’s claim that courts can be shown to be in a good position to develop constitutional interpretations which members of the lifeworld should feel compelled to accept as correct. Habermas specifically references the processes whereby courts systematically collect evidence, conduct outside 233 research, stage high-level argumentative exchanges (between advocates and opponents of a particular position), engage in internal, reasoned, deliberations (between the members of the court), and produce written justifications which refer to the reasons which speak in favor of the position that the court ultimately takes in justifying this position (Between Facts and Norms, 226-234). He claims that, by reflecting on these processes, we can see that, if they were indeed characteristic of the constitutional adjudication of a constitutional court, they would put the members of that court in a good position to understand the consequences which would flow from interpreting constitutional rights and procedures in a novel way. But this is further evidence that constitutional courts can be understood as interpretive institutions which are well-suited to carry out the proceduralist paradigm. Summing up, we can say that, for Habermas, what the court gains from making use of the procedures just sketched out, along with maintaining access to the legal public sphere, is both a formally compelling decision-making procedure along with a familiarity with the best-available substance (i.e. the most sophisticated available theories and arguments about how a particular constitutional dilemma ought to be resolved). The court, then, can be understood by citizens as being in a good position to render reasonable judgments about whether or not some proposed law or administrative action would violate the constitution (when the constitution is understood as a political project which secures for the public the rights necessary for participation in large scale and equitably structured rational discourse to take place). This means that the use of strong judicial review by such a court would not generate significant legitimacy problems for the legal system, because members of the lifeworld would have good reason to expect that such a court would interpret the constitution in such a way that the connection between the legal system and 234 the public sphere, which (at least on Habermas’s account) is the lynchpin of the legal system’s legitimacy, would remain intact. 3.1.4.3 Two Additional Considerations: The Need for Timely Decisions and Openness to Revision Having now made clear the two main conditions which Habermas claims can work to render strong judicial review non-threatening to the legitimacy of the constitutional-democratic legal system, I will comment briefly on two other important elements of Habermas’s thinking about constitutional interpretation – (a) the functional need for timely and consistent decisions (which is not directly related to legitimacy, but is still an important aspect of his account) and (b) the openness of constitutional courts to revision (which is important from the perspective of legitimacy). (a) To begin with the former, we have already seen (above, in my discussion of Habermas’s reading of Dworkin) that Habermas accepts the importance of ensuring that the meaning of the constitution is clear and predictable for members of the public. As I have suggested, one main reason that Habermas believes that whatever institution is tasked with interpreting the constitution must ensure that this clarity/predictability criteria is met is that, if it were not, we could not expect the constitution to be able to effectively regulate interactions between members of society. But then, among other things, constitutional rights and procedures could not be expected to ensure that members of the public would be able to engage in acts of public communication about how social life should be regulated. But, in that case, the legal system itself would therefore face significant legitimacy problems, since, as I have already shown, the constitutional-democratic legal system’s legitimacy rests, for Habermas, on its ability 235 to ensure that this form of public communication will be able to take place and that its output, public opinion, will be able to become legally efficacious. Habermas’s acceptance that some institution or practice must be able to settle constitutional controversies in a definitive (but not necessarily permanent, see below) way, seems certainly to explain, at least to some extent, his willingness to see, in strong judicial review, a practice that can be useful, and not legitimacy-compromising, for the legal system. In going forward, it will be useful to remember that Habermas takes this position on constitutional interpretation. Indeed, his focus on the importance of unambiguous resolution of constitutional questions may help to explain why he does not endorse a popular constitutionalist position (of the sort associated with Bellamy and Tushnet, see below), even though that position may seem to be, on first glance at least, a more natural extension of his commitment to public communication as the motor-force driving the constitutional-democratic legal system’s legitimacy. (b) The other aspect of Habermas’s thinking about the courts which is worth mentioning here is his focus on the concept of revisability. For Habermas, an important aspect of court decision-making is the ability to revise previous decisions. We have just seen that Habermas thinks that courts ought not to revise precedents frequently, but this does not mean that Habermas believes that court decision-making ought always to follow established precedent. Indeed, as should not be surprising when we are considering a figure like Habermas, who legitimates the constitutional-democratic legal system itself on the grounds that it allows an always-ongoing learning process to take place and to constantly reconfigure the law, Habermas would find a constitutional court which was empowered not only to engage in strong judicial review but also tasked with rendering final, unchallengeable, decisions, extremely problematic from the perspective of the legitimacy of the legal system as a whole. Thus, in addition to the 236 court’s situation and structure, described above, Habermas also holds that only those constitutional courts which are willing to revise precedents in line with the outcome of an ongoing learning process (itself carried out in the legal public sphere) are courts which do not necessarily threaten the legitimacy of the legal system. 3.1.4.4 Why Habermas Believes that Members of a Rationalized Lifeworld Should be Expected to see a Court Which Meets the Aforementioned Conditions as Legitimate In order to see why Habermas believes that a constitutional democratic legal system with a constitutional court which possessed the characteristics just outlined should be expected to be seen as legitimate by members of a rationalized lifeworld, we must first recall the basic practical commitment to communication oriented to mutual understanding which Habermas holds that all members of rationalized societies have more or less taken on through being brought up within a rationalized society. As I have repeated several times, members of a rationalized lifeworld believe that questions about what is true and about how social life should be regulated ought to be decided upon through communicative processes. We can understand constitutional courts to be tasked with answering just such questions. That is, constitutional courts are “required” to answer questions about how social life should be regulated insofar as they are tasked with interpreting the constitution (which, in turn, regulates social interactions straightforwardly through the coercive power of the legal system). Now, if the members of a constitutional court do possess a proceduralist self- understanding, they will understand themselves, when they are required to resolve some constitutional dilemma, to be required to determine which rights the public must possess in order to participate in large-scale rational discourse (and in order for that discourse to become legally efficacious) and to interpret the constitution in such a way that these rights will be extended to 237 the public. They will also, as we have shown, take into consideration established legal precedents and attempt to arrive at constitutional interpretations which do not depart too extensively from them. Of course, the courts cannot fully realize the ideal presuppositions of communication oriented to mutual understanding (as sketched out in chapter 2) in their attempts to answer these questions. This is because time-constraints and other practical impediments stand in the way. However, assuming a certain structure and situation (described above), court decision- making can, according to Habermas, be understood as open to the insights and critical perspectives developed in the legal public sphere. And since, in constitutional-democratic societies (at least as Habermas understands them), all members of the public are, in principle at least, able to participate in the legal public sphere, we can see constitutional courts as being influenced by something like public communication in their decision-making about the meaning of the constitution and therefore the meaning of the basic rights which citizens possess, because we can understand the members of the court as remaining open to (in the sense of critically considering) the (specialized) public opinion generated by the legal public sphere in their attempts to determine how to resolve the constitutional questions which come before them. But, in this case, citizens might be able to see the court as contributing to, not causing problems for, the legitimacy of the legal system, because they could see the courts as working to ensure that something which a legitimate legal system must guarantee – the basic rights necessary for participation in large-scale public deliberation – would in fact be realized. And, again, this would ultimately be because, (1) as members of a rationalized lifeworld, citizens would have to believe that public communication itself is the only process which is appropriate to determine which rights are necessary in order for public communication to approximately realize the norms of communication oriented to mutual understanding, and (2) the court would have to be seen as 238 being open to influence by public communication when it attempts to answer the question which basic rights are necessary in order for public communication to continue or to overcome some newly discovered potential obstacle (because the courts would be guided in their decision making by the complex discourses which are mounted in the legal public sphere). If what I have said is right, then constitutional courts with the outlined characteristics could be seen as proceeding correctly in answering constitutional questions, and therefore would have to be taken to be likely to produce rationally acceptable proceduralist interpretations of the constitution. Therefore, constitutional democratic legal systems which made use of constitutional courts to determine which rights members of the public will possess, and which procedures will characterize the law-making process, would not have to be seen as illegitimate because they rely on courts in this way. Indeed, the use of the courts to answer these questions could even be seen as helping to secure the legitimacy of the legal system because it would have to be seen as working to ensure that citizens possess the rights necessary in order to participate in processes of public communication (and to ensure that such communication becomes legally effective) such that the legal system itself should be thought legitimate. Because the courts would be seen as (1) working to ensure that public communication comes ever-closer to realizing the presuppositions of communication oriented to mutual understanding and (2) that the public opinion generated in public communication becomes legally effective, through interpreting the constitution in such a way that members of the legal community could enjoy the rights necessary in order to participate in these public communication processes, the courts would have to be seen as working to burnish the legitimacy of the legal system, not as working to undermine it. Importantly this does not mean that there would not be other institutional arrangements which could be used to interpret the constitution in an equally legitimate way. It merely means, instead, that constitutional courts 239 which meet the demanding criteria laid out above should be expected to be taken by members of the public (upon reflection) to represent a tolerably good way to interpret the constitution. To say the same thing, but in a simpler way, what Habermas is arguing is that, simply put, using communication oriented to mutual understanding to determine which rights citizens must possess in order to participate in large-scale rational discourse would involve allowing all members of the public who desire to forward any argument whatsoever about this question to participate in a process in which they can, indeed, formulate and forward their arguments, defend them, and challenge the arguments made by other members of the public under conditions of equal standing, non-coercion, and consensus-orientation. The idea is that, once these conditions are met, the best argument about the relevant topic (in this case constitutional rights) will win out. The way that Habermas tries to demonstrate that constitutional courts will be influenced by such a process is by relying on the existence of a legal public sphere which is made up of the academic system, civil society, and the mass media (among other elements). All members of the public are, in principle, allowed to forward, defend, and challenge arguments about the constitution through participation which is mediated by these institutions. And the court is capable of paying attention to this process and can notice which arguments survive critical scrutiny the best through various means (e.g. the filing of amicus briefs in the American system). The court can then, through the use of courtroom procedures, pay even closer critical scrutiny to these arguments and draw a reasonable determination about which arguments are most convincing. But this process is, if certainly not an instance of pure communication oriented to mutual understanding determining which constitutional rights the public will possess, at least a tolerable substitute for it insofar as all citizens are allowed to participate in the process (albeit at 240 significant remove). This is why, as we have already seen, Habermas says that court proceedings should be understood as working to institutionalize a particular “argumentation game”. The members of the court are exposed to the arguments about constitutional interpretation which are developed in the legal public sphere (in processes of public communication) and then, through reflection on these diverse reflections, render a temporary judgment which, for the moment, settles the constitutional question. Public communication processes thereby can be both understood to influence court decision-making, and to be improved, coming ever closer to realizing the norms of communication oriented to mutual understanding, through the court’s decision-making as well. But the courts do not, as I have already emphasized, have to be understood as closing the question permanently when they render a decision. Indeed, counter- arguments can develop through the institutions which structure the legal public sphere and win the day in a later instance of constitutional review. If what has been said so far is true, then Habermas can conclude that the public should be expected, when the relevant conditions are met, to see strong judicial review as a process by which public communication plays an important role in resolving a disputed question. But, since the members of the public are already committed to using public communication to resolve disputes, they cannot find this procedure to be problematic. Therefore, Habermas argues, the members of the public do not, so long as the requisite conditions are met, have good reason to take strong judicial review to produce legitimation problems for constitutional democratic legal systems as a whole. And, again, because strong judicial review, on Habermas’s reading, is a process whereby public communication is involved in settling the question of which rights are necessary for public communication about political questions to continue and become politically effective, the use of the practice of strong judicial review also can even be understood to burnish 241 the legitimacy of the constitutional-democratic legal system because it can help to ensure that the system of rights and procedures which is the hallmark of that system will perform the normative function to which they are assigned by the system. 3.1.4.5 Is There a Paradox Here? One question which the reconstruction I have just offered might bring up is whether or not there is something paradoxical about Habermas holding that it is the openness to public communication processes (made possible by certain structural and situational elements of constitutional courts) which enable members of a constitutional court to reach reasonable conclusions about how constitutional rights and procedures should be interpreted. The apparent paradox is that Habermas seems to be saying that members of the court can be expected to reach reasonable conclusions about how constitutional rights and procedures must be interpreted in order to make public communication possible by remaining open to public communication. But this assumes that public communication is already taking place, such that there would be no need for the court to ask what is necessary for public communication to take place, since it is already ongoing. Is there a problem here? The answer to this question is that the apparent paradox is not really a difficulty, since what Habermas is maintaining in claiming that the court’s openness to the public communication processes enables it to determine how constitutional rights and procedures should be interpreted so that public communication processes can come closer to realizing the norms of communication oriented to mutual understanding is not that the public communication processes in the lifeworld perfectly realize the norms of communication oriented to mutual understanding, but instead that if the court is going to be expected by members of the lifeworld to determine what is necessary in order for public communication processes to overcome existing 242 impediments to the realization of the norms of communication oriented to mutual understanding, the court will have to remain open to existing processes of public communication, fully knowing that they do not completely realize the norms of communication oriented to mutual understanding. This is because communication oriented to mutual understanding is, from the perspective of members of the lifeworld, the best available source of insight into how public communication processes themselves should be structured. Thus, even if existing communicative exchanges do not live up to the norms of communication oriented to mutual understanding, still the court must be open to the insights which might be generated from these imperfectly structured instances of communication if it is to be taken to be an appropriate forum for interpreting the constitution along proceduralist lines. Communication, after all, can be communication about communication. Language, for that reason, is a self-reflexive medium. Indeed, most all people have had the experience of gaining some insight into how past instances of communication have failed, and how future instances of communication could be improved, through communicative exchanges about communication itself. To take an example from academia – it would not be surprising to hear that some instructor, eager to improve the dynamics of his or her classroom conversations, regularly leads conversations with his or her students about how to improve communication in the classroom. This would be an instance of communication about communication through which insights into how to better structure instances of future communication could emerge. Thus, though it does sound paradoxical to speak of the court’s openness to public communication as being an important reason to believe that the court will be able to determine what is necessary for public communication processes to take place, the appearance of troublesome paradox here is merely apparent. 243 3.1.4.6 The Relationship between Habermas’s Argument and the Question of Judicial Review Now that I have reconstructed Habermas’s attempt to defend the legitimacy of constitutional democratic legal systems which empower constitutional courts to engage in strong judicial review, we are nearly ready to subject his account to critical scrutiny. I will do that below (in 3.2). First, however, I will contextualize Habermas’s account relative to the other main defenses of strong judicial review which can be found in the American discourse (in 3.1.5). I introduced these positions in chapter 1. Before turning to these remaining tasks, however, I should first remind the reader that, despite the general language in which Habermas discusses constitutional-democratic legal systems, strong judicial review, and constitutional courts (which I have adopted in my presentation of his account), he makes it clear, in Between Facts and Norms and elsewhere, that he is thinking of both the American Supreme Court and the Constitutional Court of the German Federal Republic in reconstructing the legitimacy of constitutional-democratic legal systems with strong judicial review (Between Facts and Norms, 194). This means that we can justly read Habermas’s reconstruction of strong judicial review as an entry into the American debate about strong judicial review and to treat him as a qualified proponent of the Supreme Court’s empowerment to engage in strong judicial review (qualified because he lays out several demanding conditions which would first have to be met before the Court could be considered unproblematic from the perspective of the legitimacy of the American constitutional-democratic legal system). In what follows, therefore, I will treat Habermas as a participant in the American debate. Thus, unless some particular consideration forces me not to, I will revert to referring specifically to that context (i.e. I will no longer exclusively frame my commentary in terms of 244 constitutional courts in general, but will instead refer to the American Supreme Court and the American Constitution, and the like). 3.1.5 Locating Habermas’s Justification of Strong Judicial Review in the Ongoing Academic Debate about the American Supreme Court Having now finally reconstructed Habermas’s qualified defense of strong judicial review, we are in a position to compare his justification to the four types of legitimation of strong judicial review which we identified in chapter 1. This will allow us to see how Habermas fits into the ongoing American debate about strong judicial review and to characterize the way that his position is interestingly different from, and therefore potentially superior to, the various legitimations on offer in that discourse. To recall, the four types of legitimation of strong judicial review which we identified in chapter 1 were (1) the position that, contrary appearances notwithstanding, the Supreme Court’s power of strong judicial review is actually not paternalistic because public opinion can be expected to shape the Court’s decisions in various ways (associated with Alon Harel, Barry Friedman, Christopher Eisgruber, and Bruce Ackerman), (2) the position that the Court’s power of strong judicial review is paternalistic, but that this is not normatively problematic because popular sovereignty (which, as I have said, Habermas sometimes refers to with ‘public autonomy’) is not a political ideal of first importance (associated with Larry Alexander, Alexander Bickel, Lawrence Sager, and Jesse Choper), (3) the position that the Court’s power of strong judicial review is only apparently paternalistic, but that it does not really violate popular sovereignty because it ensures that members of the public can identify with the laws, insofar as strong judicial review works to ensure that they are rationally justifiable (associated with Ronald Dworkin and John Rawls), and (4) the position that the Court’s power of strong judicial review is only apparently paternalistic, but that it does not really 245 violate popular sovereignty because it ensures that members of the public are in a position to help shape the legal code, such that they can understand the laws under which they live as the product of their own choices (associated with John Hart Ely and Robert Post). I will draw some conclusions about the relationship between these positions and Habermas’s own legitimation below (5). (1) In reviewing these positions and comparing them with Habermas’s approach, several similarities and differences are immediately apparent. First, Habermas’s legitimation of strong judicial review does somewhat work along the same lines as those pursued by the theorists in group (1). Recall that Alon Harel, for instance, argues that we should understand strong judicial review as a “participatory form of decision-making” because the members of the Supreme Court do not interpret the Constitution in a vacuum, but instead are influenced in their reading of the Constitution by the cultural milieu of which they are a part. But, since this milieu is influenced by members of the legal community (in their capacity, which they share with the justices, as members of the lifeworld), we can understand the justices’ decision-making process to be influenced by members of the public such that we need not see their decisions as sealed off from public influence. Friedman also points to the importance of public opinion in trying to argue that the American Supreme Court should not be seen as reaching interpretations of the Constitution in a way that escapes public influence (though his account focuses more on the ability of the members of the public to discipline judges if their jurisprudence goes too far astray from public expectations than it does on the idea that judges can be understood to be influenced by public opinion because of their shared status as members of the lifeworld). Habermas’s reliance on the legal public sphere to connect the interpretations reached by constitutional courts to processes of communicative public opinion formation is, indeed, 246 somewhat reminiscent of both Harel and Friedman’s strategy. After all, the basic idea is the same in all three cases. Simply put, the interpretations which constitutional courts reach must be understood as influenced by public communication because some feature of the court, either the cultural embeddedness of the justices, the court’s reliance on public esteem, or the desire by the justices to reach correct decisions about the meaning of the constitutional text, incentivizes its members to pay attention to the arguments and critical perspectives developed in the legal public sphere. The main difference is that, whereas Harel and Friedman conceptualize the connection of Supreme Court with public opinion in terms of subtle forms of influence which the public can have upon it, Habermas conceptualizes the Court’s connection with public opinion in terms of the structure of courtroom proceedings. His idea is that there are several features of that process which ensure that public communication processes will be influential for the justices. We have already suggested what these might be, above. Thus, Habermas can be seen as extending Harel and Friedman’s account and describing the various ways that public communication processes can be influential because a consideration of it is built into the procedures used by the Court to reach decisions. (2) When we consider the defenders of strong judicial review who are located in group (2), however, Habermas’s legitimation of the practice seems quite distinct, and even opposed. Recall that the theorists who are a part of group (2) seek to defend strong judicial review on the grounds that it leads to laws which are more consonant with considerations of justice or morality than they would otherwise be (if the legal system did not make use of strong judicial review). Larry Alexander’s consequentialist defense of strong judicial review, for instance, simply holds that strong judicial review is a normatively desirable element of the legal system just so long as it 247 leads to better consequences (on Alexander’s theory of the good) than would an alternative arrangement. From what has been said so far, it should be clear why Habermas does not wish to propose a defense of strong judicial review on these grounds. In short, by invoking a consequentialist test (or, for that matter, a straightforwardly moral test of any kind) Alexander (and theorists like him) have to resort to substantive moral theories which Habermas thinks cannot be plausibly defended in the aftermath of the social rationalization processes which have undermined widespread shared belief in the traditional sources of moral value (e.g. un- challengable religious traditions). Because Habermas is convinced that contemporary rationality has become procedural, and therefore does not ground substantive moral claims until it is applied, through discourses of justification and application, to particular circumstances, he cannot see moral tests of the legitimacy of political institutions like the one that Alexander proposes as rationally defensible. For Habermas, the justification of a legal practice like strong judicial review will have to be made on the grounds that the institution in question enables communicative resolution of moral and political dilemmas by the actually-existing public. (3) A more interesting comparison can be made when we consider the relationship between Habermas’s legitimation and the account developed by Dworkin, which I located under the heading of group (3). Recalling what has been said about Dworkin so far, we should be able see that Habermas’s account differs from Dworkin’s in terms of the way that the normative purpose of the Constitution is conceptualized. For Dworkin, the Constitution attempts to inaugurate an egalitarian political project. And this project, for Dworkin, is a morally justifiable one. Thus, if it can be shown that the Supreme Court would be more likely to interpret the Constitution in accordance with this egalitarian project than conceivable majoritarian 248 alternatives, Dworkin can claim that the Supreme Court’s practice of strong judicial review must be understood as normatively justifiable. Dworkin offers an account of constitutional interpretation which attempts to show why we might think that members of the Court will be able to reach egalitarian interpretations of the Constitution given this understanding of its normative purpose. Now, Dworkin’s account of the normative purpose of the Constitution is clearly opposed to Habermas’s account of the normative project which the Constitution attempts to inaugurate. Indeed, Habermas’s proceduralist account of the Constitution locates its normative importance in the way that it connects public communication processes to the legal code, not in terms of certain substantive moral or political goals which the Constitution is supposed to help us achieve. Thus, in terms of their accounts of the normative purpose of the Constitution, Habermas and Dworkin are at odds. Where Habermas and Dworkin agree, however, is on the basic outlines of the philosophy of judicial interpretation (which I have already discussed) and on their optimism about what can be gained for the practice of constitutional interpretation by the rules of courtroom procedure which characterize the Court’s taking of evidence and formulation of judgments. As we have seen, Dworkin talks about the Court’s ability to thoughtfully and critically process sophisticated arguments about how the Constitution should be interpreted in terms of the court’s functioning as a “forum of principle”. This idea, that a constitutional court is in a position to render correct judgments about competing arguments about constitutional interpretation, can also be found (though not under that name) in Habermas’s discussion of the rules of courtroom procedure. Indeed, Habermas clearly believes that one of the reasons that we ought to trust constitutional courts to resolve constitutional disputes reasonably is that they are (at least if they are structured 249 like the American Supreme Court or the German Federal Court) structured in such a way that they can critically work through the various arguments and perspectives which are developed in the legal public sphere. For both Habermas and Dworkin, then, constitutional courts are good candidate institutions for constitutional interpretation because the way that they are structured ensures that they will be in a good position to discriminate between convincing and unconvincing arguments about how the Constitution should be read given a theory of the normative project which it attempts to launch. We must keep in mind, however, that Habermas and Dworkin differ in their understanding of the kind of question that constitutional courts ought to attempt to answer. Habermas sees these questions as primarily procedural (i.e. questions about which rights and procedures are necessary to enable public communication about the laws and to make the public opinion which these processes generate legally efficacious), whereas Dworkin sees the Court as being tasked with answering moral questions about how the Constitution ought to be interpreted if it is understood as an attempt to launch an egalitarian political project. Habermas can be seen, further, as attempting to make Dworkin’s account of the Court’s ability to perform its role plausible by showing that its members could engage in constructivist readings of the Constitution which could hope to succeed in reaching correct decisions about how the Constitution should be interpreted given the influx of critical power and diverse perspectives which the Court can gain access to through remaining open to the legal paradigms, constitutional arguments, and general critical perspectives developed in the legal public sphere. If we see constructivism as an intersubjective, communicative, project, then we can begin to understand how judges might be able to make correct decisions about the meaning of constitutional language (given some normative theory of the role of the Constitution). Thus, we again find Habermas in partial agreement with a prominent American proponent of strong 250 judicial review. He extends Dworkin’s account by showing how the Supreme Court, through courtroom proceedings which allow it to engage with the legal public sphere, can plausibly hope to live up to Dworkin’s ideal of the forum of principle. (4) Habermas’s account also clearly shares something with the defense of Court’s power of strong judicial review which is developed by John Hart Ely. As we have seen, Ely’s legitimation of strong judicial review is related to his understanding of the American Constitution as a procedural document which should be understood as attempting to ensure widespread participation in the process of law-making for citizens. Ely, therefore, should be read as seeing the Constitution as an attempt to ensure that the rights and procedures necessary to enable all citizens to participate in the process of law-making are maintained over time. The similarity to Habermas’s account is obvious, since Habermas also sees the Constitution as working toward making this form of participation in the law-making process possible. It is worth noting here that Habermas also criticizes Ely on some points in Between Facts and Norms. His most pointed criticism is that Ely frequently misunderstands the normative connotations of the project of constitutional interpretation which he, himself, advocates. Ely, for instance, rejects Dworkin’s constructivism on the grounds that constitutional interpretation should attempt to avoid investing the Constitution with normative principles. This, Ely worried, would provide judges tasked with interpreting it nearly unlimited power in determining what is constitutional. Habermas objects that Ely’s own program, however, only makes sense if we accept that the Constitution launches a normative project. Thus, Ely cannot avoid seeing the Constitution as a normatively laden document. He should, by Habermas’s lights, accept Dworkin’s constructivism and, as Habermas does, couple it with a commitment to democratic proceduralism. 251 (5) Having compared Habermas’s legitimation to some of those positions which we canvassed in chapter 1, we can present certain conclusions about how Habermas’s approach relates to these. In short, Habermas’s legitimation of strong judicial review can be seen as a sophisticated synthesis of several of the main positions in the American debate. Like the group (1) theorists, Habermas maintains that strong judicial review must be connected to communicatively worked out public opinion if it is not to be understood as an illegitimate element of the constitutional-democratic system. Like the group (3) theorists, Habermas insists that we see the Constitution as a document which launches a general normative project. He thus rejects the view of the Constitution as a set of positive rules (associated with originalists like Antonin Scalia) and claims that the legitimacy of strong judicial review is dependent upon the Court adopting, and tolerably carrying out, a (Dworkin-ian) constructivist approach to interpretation. He proposes the concept of the legal public sphere and reconstructs courtroom procedures to show how the justices could be thought to be in a good position to carry such a project out (and, at the same time, to remain in contact with communicatively generated public opinion). In short, they can hope to develop highly sophisticated interpretations of the Constitution because they have access to public communication through participation in the legal public sphere and because they are well-positioned to judge which arguments developed in that sphere are plausible (through courtroom proceedings in which these arguments are introduced, framed, defended, and criticized before the judges by a series of researchers, clerks, and trained advocates). Finally, like the group (4) theorists, Habermas understands the normative purpose of the Constitution as a proceduralist. That is, he sees the Constitution as working to ensure that public communication processes about political questions will be able to take place and become legally efficacious. He thus claims that, in order for the Court’s power to engage in strong 252 judicial review to not cause legitimacy problems for the American legal system as a whole, the members of the Court must not only adopt a constructivist view of the Constitution, but also must understand its (proceduralist) purpose correctly. What all of this ultimately suggests about Habermas’s thinking about strong judicial review is that it is an interesting synthetic account which brings together several of the insights to be found in the different major pro-judicial review camps and Habermas’s own, highly sophisticated, social theory. We can read Habermas as combining Dworkin’s constructivist account of constitutions with an intersubjective, communicative, theory of the formation of public opinion and its connection to court decisions (owing something to Friedman, Harel, and Eisgruber), and with an Ely-like understanding of the normative project which the Constitution attempts to support. He brings these positions together to show why the use of strong judicial review need not cause legitimacy problems for constitutional-democratic legal systems, but he does not, like Dworkin (and some other defenders of strong judicial review) suggest that this is the only form of constitutional interpretation which would be necessary in order for the legal system to maintain legitimacy. I turn now to considering whether or not Habermas’s complex, synthetic, theoretically-grounded, defense of strong judicial review can withstand critical scrutiny. 3.2 A First-Pass Critique of Habermas’s Legitimation of Strong Judicial Review Now that we have both made clear how Habermas attempts to argue for the legitimacy of strong judicial review (i.e. argue for the claim that the use of strong judicial review need not cause major legitimacy problems for the legal system) and clarified the relationship between his position and the dominant positions in the American debate, we have finally arrived at a point from which we can develop a critique of his argument. In this section I will attempt to 253 demonstrate that, for multiple reasons, Habermas’s legitimation is ultimately unconvincing. I will then attempt to show that, although Habermas’s account of social theory is ultimately in conflict with his attempt to legitimate strong judicial review, it can accommodate a defense of weak judicial review. On this basis I will argue that, if he doesn’t want to revise some of the core claims of his social theory, Habermas should give up his defense of strong judicial review and defend the normative desirability of weak judicial review instead. Once I have made this argument, I will consider several possible objections which might be made to my attack by an astute defender of Habermas’s position. I will summarize these and then, ultimately, attempt to develop compelling responses to them. If I am successful, I will have shown that Habermas was too sanguine about the legitimacy of constitutional democratic legal systems with strong judicial review in Between Facts and Norms. Therefore, as an entry into the American debate about the Supreme Court’s empowerment to engage in strong judicial review, Habermas’s approach, though interesting, ultimately does not succeed. If what I am saying here is true, it would be interesting to ask what might account for Habermas’s error. I will offer some brief considerations about this question in my conclusion. 3.2.1 Three Objections to Habermas’s Account I want to begin my attack on Habermas’s (admittedly limited) defense of strong judicial review by pointing out two objections to the practice which we might have expected to lead Habermas to be suspicious of its normative desirability. First, as we have seen Mark Tushnet point out, strong judicial review might reasonably be expected to create the impression, on the part of members of the public and their elected representatives, that questions about basic constitutional rights are matters which ought to be resolved by a group of elite legal experts (a). This is the problem of judicial overhang. Second, as we have seen Richard Bellamy point out, 254 the use of strong judicial review to produce and apply authoritative interpretations of the Constitution appears to involve the production of significant power differentials between citizens (b). This is the concern that strong judicial review involves setting up normatively unjustifiable domination relationships. Once I have formulated these two objections, I will pose an additional problem for Habermas’s account. Roughly, the claim that I will make is that, because the use of strong judicial review reserves decision-making authority for a small group of judges and does not (at least not characteristically) build in disciplining structures which ensure that those judges will be responsive to the public opinion generated in the legal public sphere, it raises the prospect that the decisions reached by a constitutional court will diverge from the conclusions which are, or would be, reached through processes of public communication staged in the legal public sphere (c). But, given Habermas’s social-theoretic account, it is exceptionally difficult for him to find a plausible reason to reserve interpretive power for a small group of judges (even if these judges adopted the proceduralist paradigm and understood their role to be reasonably working through the various arguments generated in the legal public sphere on their way to decisions which could be seen to be influenced by the communication which takes place there). Although I believe, and will attempt to show, that Habermas’s account could perhaps face up to the first two objections, this last objection is a major problem for Habermas. This is because a foundational premise of his social theory is that members of the lifeworld, at least in general, can be expected to maintain a practical commitment to public communication as the appropriate practice to use in order to resolve disputes about how social life should be regulated (and this would seem plainly to include disputes about constitutional interpretation, since the way these disputes are resolved bears heavily on how we determine which basic rights members 255 of the legal community will possess). Thus, if Habermas is right that members of the lifeworld do endorse (or would at least, upon reflection, endorse) this practical commitment, then they cannot be expected to see strong judicial review, even under the exacting conditions which Habermas lays out, as neutral or positive from the perspective of the legitimacy of the legal system. Ultimately this is because even those exacting conditions do not ensure that the court’s interpretations of the constitution will correspond with, or be influenced by, communicatively generated public opinion about how constitutional rights ought to be interpreted. I will introduce and attempt to motivate these objections (a-c) in turn. Once I have finished presenting them, I will then work out, on the basis of my reflections, a tentative conclusion regarding Habermas’s account (3.2.2). (a) Mark Tushnet’s judicial overhang critique of strong judicial review, developed in Taking the Constitution Away from the Courts and Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (among other places), holds that the use of strong judicial review to resolve constitutional indeterminacy can contribute to the development, on the part of members of the public and elected legislators, of the belief that interpreting constitutional rights and procedures is a matter which calls for expert legal analysis. Tushnet formulates the judicial overhang critique within the context of the American debate about the question of judicial review. Indeed, he sees the practice of strong judicial review as figuring prominently in the historical development of the widespread commitment to judicial supremacy which is on display in American political culture151. Recall, from chapter 1, that judicial supremacy refers to the doctrine that the Supreme Court is, and ought properly to be, the 151 One proof of the widespread acceptance of judicial supremacy is the reaction, on the part of legal scholars, to proposals, like Tushnet’s and Larry Kramer’s, that judicial supremacy be replaced by something like popular constitutionalism. Larry Alexander and Lawrence Solum, for instance, say of Larry Kramer’s proposal for a popular constitutionalism that it has, “the capacity to inspire dread and make the blood run cold” (1637-1639). 256 “final arbiter” of the meaning of the Constitution (Taking the Constitution Away from the Courts, 8)152. Without going too much into the details of Tushnet’s complicated historical argument linking strong judicial review to the rise of judicial supremacy, we ought to be able to see, on conceptual grounds alone, why a legal system’s use of strong judicial review might plausibly be expected to lead members of the public to see the constitution itself as fundamentally a legal document, and therefore to see constitutional interpretation as the rightful province of legal experts. The simple reason, of course, is that to make use of strong judicial review is both to task legal experts with producing interpretations of the constitution, and, crucially, to give the interpretations of those experts overriding political effect (meaning that the interpretations of the members of the court are capable of countermanding the constitutional interpretations which are implicit in acts of the executive, or laws passed by the legislature, which the court finds unconstitutional, not to mention the interpretations of the constitution which non-experts might develop in communication in the political public sphere). But, as we have seen Jeremy Waldron argue in The Core of the Case Against Judicial Review, it would not make sense to give this power to the judiciary unless judges could, for some plausible reason, be expected to be especially well-positioned to reach correct judgments about how the constitution ought to be interpreted. But, this would seem plainly to mean that the constitution itself must be understood as fundamentally a legal document, because only the attempt to interpret such a document would call for the special expertise of those who have undergone legal training (i.e. judges and 152 As I mentioned in chapter 1, Larry Kramer, in his The People Themselves: Popular Constitutionalism and Judicial Review, provides a detailed historical account of the path that the concept of judicial supremacy took from being a fringe view to a widely shared belief in the appropriateness of the Supreme Court’s status as the institution which is responsible for generating definitive interpretations of the Constitution. Kramer’s historical account basically dovetails with Tushnet’s. 257 lawyers). But conceiving the constitution this way would indeed suggest that members of the public who are not legal experts should see constitutional interpretation as a practice which they do not possess the requisite skills or training to pursue in anything other than the role of an amateur. If this conceptual restatement of Tushnet’s historically informed argument is basically on track, then we can credit him with having noticed a likely consequence of the legal system’s “decision” to make use of strong judicial review. The question, then, is whether or not the phenomena of judicial overhang ought to serve as a challenge to the supposed normative desirability of strong judicial review. And this depends, of course, on the way that strong judicial review is normatively justified. Indeed, from the perspective of a consequentialist approach like Larry Alexander’s, Tushnet’s concerns about judicial overhang, which are rooted in his commitment to popular constitutionalism as a form of democratic self-determination, would not pose any serious problem. Alexander could simply reply to Tushnet that, just as we are quite happy to refer to expert analysis when we need work done on our cars or a complex medical procedure, there is nothing problematic about relying on legal experts to interpret the Constitution so long as this can plausibly promise to bring about better moral consequences (from the perspective of our substantive theory of the good) than an alternative practice of constitutional interpretation. However, when it comes to an account like Habermas’s, this sort of response, for reasons that I have already sketched out, is clearly off the table. Indeed, Habermas’s justification of strong judicial review seems particularly vulnerable to a critique based on the judicial overhang phenomena. Because Habermas legitimates strong judicial on the grounds that members of the court will have access to a robust legal public sphere, through which they can plausibly claim to 258 be in contact with public communication processes about how constitutional rights and procedures must be interpreted so as to both enable further instances of public communication and to maintain their political efficaciousness, anything which threatens to greatly diminish the prospects that members of the legal community will participate in public communication about the constitution is problematic. But, as Hugh Baxter points out in a brief commentary on Tushnet153, the phenomena of judicial overhang could be expected to do just that. It might well work to “stunt democratic self-governance” by making members of the public less likely to see vital political questions about the meaning of the constitutional higher law as ones which they have any business attempting to answer. Thus, it seems, Habermas should have been expected to see in strong judicial review the potential that the practice would stifle the very public communication which he understands as the basic source of the legitimacy of the constitutional-democratic legal system. He should have been more skeptical of the normative desirability of strong judicial review on the grounds that it might well be expected to contribute to civic privatism, which is ultimately incompatible with seeing the legal system as legitimate, since it means the gradual drying-up of the source of that system’s legitimacy. (b) Walter Bellamy’s critique of strong judicial review, made on the grounds that the practice constitutes a form of domination, represents a similar problem for an account like Habermas’s. As we have already seen, Bellamy defines domination in terms of the power which the dominating party possesses vis-à-vis the dominated party. In Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy, he writes, 153 See Baxter’s, “A Comment on Mark Tushnet’s Some Notes on the Congressional Capacity to Interpret the Constitution.” 259 “Domination issues from an individual or body possessing the power willfully to exercise… interference over others, or in other ways to ignore or override their opinions and interests.” (151). Given this definition, for Bellamy, it is patently obvious that a constitutional court like the American Supreme Court would be in just such a dominating position, relative to individual citizens, if it were empowered by the legal system to engage in strong judicial review. After all, as is obvious from even a passing acquaintance with the history of constitutional law, the power to provide definitive interpretations to constitutional rights and provisions can either advance or impede the interests of members of the public. This fact, combined with the fact that courts which are empowered to engage in strong review represent small bodies, gets us directly to a situation in which some group has the power to exercise interference with the interests of another. But, though it may look this way on first glance, Bellamy’s position is not that any political institution with the power to interfere in the lives of legal subjects is therefore normatively undesirable. Indeed, Bellamy is not an anarchist. He is willing to countenance political hierarchies on practical grounds. What is especially problematic about a constitutional court exercising strong judicial review (on his account), however, is that the members of the court, at least in the American system (and in most other systems as well), are not easily subject to removal, or discipline, by members of the public. The lifelong tenure characteristic of the American system, for instance, along with the structural insulation of the members of the Court from political pressure (taken as a virtue by many of the defenders of strong judicial review who we canvassed in chapter 1), means that the domination relationship set up between members of 260 the Court and members of the public is normatively problematic, because it is not modifiable by the members of the public. One reason that, from the perspective of Habermas’s Kantian Republicanism, the domination relationship which Bellamy sketches represents a problem is that, as Rawls points out in A Theory of Justice, the political institutions which a society makes use of are not neutral from the perspective of character-formation. If Rawls is right on this point (and Habermas would certainly agree with him), then the legal system which makes use of a political practice which establishes relationships of domination, like strong judicial review (at least if Bellamy is right to conceptualize it in the way that he does), can be expected to have an impact on the political culture which would be negative from the perspective of Habermas’s social theory. Indeed, if Habermas is correct that the source of the legitimacy of the constitutional-democratic legal system is the existence of an autonomous public sphere which enables public communication (that approximately realizes the presupposition of communication oriented to mutual understanding) to take place, then the use of strong judicial review, assuming that Bellamy is right to claim that this involves establishing relationships of domination between the justices and members of the public, has to be seen as normatively undesirable because it makes it more likely that members of the public will be willing to see intersubjective relationships of domination as appropriate. But, if domination-relationships come to be seen as appropriate forms of social relationship, then public communication processes will be less likely to live up to the presuppositions of communication oriented to mutual understanding, since one of the norms of that form of communication is the realization of a situation of non-coercion and non-domination such that participants in the communicative exchange can raise or criticize claims (and do a whole range of other things besides) without fear of reprisal. 261 If this, admittedly speculative, account of the cultural consequences of making use of strong judicial review is at all plausible, then we should have expected Habermas to see in that practice a possible threat to maintaining the political culture which is a necessary condition for the public communication processes which are central to his attempt to redeem the legitimacy of constitutional-democratic legal systems. That he still maintains that strong judicial review can function as an element of these systems which does not necessarily compromise their legitimacy (and, indeed, sometimes buttresses it), suggests that he has either missed the character-informing elements of political institutions (which is highly unlikely), or that he believes that alternatives to strong judicial review as the definitive form of constitutional interpretation are, normatively speaking, worse (or riskier) than that practice. I will follow up on this as a possible line of response which Habermas could take below (b.1). (c) Whereas the previous two arguments attacked Habermas’s defense of strong judicial review on the grounds that it might plausibly be thought, assuming the basics of Habermas’s account of the legitimacy-basis of constitutional-democratic legal systems (reconstructed in this chapter) is correct, to harm the legitimacy-status of the legal systems which make use of it by impoverishing the public sphere, Habermas’s defense of strong judicial review is also vulnerable to a stronger set of objections. These are the objections (1) that strong judicial review, at least as it is institutionalized in the American and German legal systems, is not structured in such a way that the constitutional-interpretive decisions reached by the justices are guaranteed to be influenced by the processes of public communication which take place in the legal public sphere and (2) that even if the members of a constitutional court empowered to engage in strong judicial review all accepted Habermas’s proceduralist account of law as correct and saw part of their role in interpreting the constitution to be to remain open to the best arguments generated in the legal 262 public sphere (i.e. even if Habermas’s conditions for the Court to be non-problematic from the perspective of legitimacy were all met), still there would be, on Habermas’s own account, compelling reasons to reserve final interpretive authority not for the members of the court but for the members of the general public. I turn now to unpacking these objections in turn. (1) One aspect of strong judicial review, at least as it is practiced in the American and German constitutional-democratic legal systems, which stands out as especially problematic given Habermas’s justification of the practice, is the way in which the justices who sit on the American Supreme Court and the German Constitutional Court are insulated from the sort of political pressures which Habermas credits with ensuring a connection between the behavior of legislators and public communication processes. Indeed, as we saw in chapter 1, defenders of the American Supreme Court’s role in the political process (like Eisgruber and Dworkin) point to the features which allow its members to disregard political concerns, like lifetime tenure (or very long tenure, in the German case), the absence of formally established procedures through which the public can force the Court to take up a particular constitutional question, and constitutionally protected salaries, as important protections for the members of the Court, which position them in such a way that they are more likely than they otherwise would be to correctly resolve constitutional indeterminacy. This way of thinking would be part and parcel with Dworkin’s forum of principle argument, for instance. What is problematic about these features of strong judicial review (which are basically typical of constitutional courts which are empowered to engage in strong judicial review in existing constitutional-democratic societies) should, by this point, be pretty obvious. Indeed, as we have seen, Habermas attempts to show that constitutional courts are to be understood as capable of rendering decisions about questions of constitutional interpretation through paying 263 critical attention to the arguments developed in the legal public sphere. But it is clear that the features of constitutional courts which insulate their members from political concerns should be expected to tend to free the members of the court to take up any relationship which they wish to the legal public sphere. This is in obvious contrast to the salutary role that Habermas takes political pressure to play when it comes to the legislative and executive branches of government. There Habermas is happy to see common features of constitutional-democratic societies (e.g. free and regular elections and competing political parties) which work to pressure lawmakers to pay attention to, and act in at least relative accordance with, communicatively-processed public opinion, as working to ensure that public communication processes can, in an admittedly indirect way, be reasonably expected to have an effect on the legal code. But if it is fair to assume, as Habermas presumably does, that these constitutionally enshrined incentivizing mechanisms are necessary to ensure that the legislature will not break the connection with public communication which is necessary in order for the legal code (and with it the legal system as a whole) to be seen as legitimate, then, unless Habermas wants to try to maintain the implausible proposition that members of the judiciary are less corruptible than members of the legislature, and therefore less in need of an incentive structure that will ensure that their decisions remain tied to the public communication processes which take place in the legal public sphere, there is no easy way to explain why Habermas does not make the claim that the absence of similarly incentivizing structures should be understood as a significant problem for constitutional courts insofar as their absence means that there is no good way to ensure that constitutional courts empowered to engage in strong judicial review will not merely pay the public opinion developed in the legal public sphere token attention. 264 (2) Perhaps one way that Habermas might try to respond to an argument like this is by claiming that, in reconstructing the conditions necessary in order for constitutional courts (empowered to engage in strong judicial review) to avoid compromising the legitimacy of constitutional-democratic legal systems, he is not taking a position on the incentive structure which would be necessary to ensure that justices on such courts would meet those conditions (i.e. adopt a proceduralist account of the constitution and adopt the appropriate relationship of openness and willingness to learn from the legal public sphere). Instead, he might very plausibly claim, all that he is doing in Between Facts and Norms is identifying conditions which, if they were characteristic of the self-understanding and structure of a constitutional court, like the American Supreme Court, empowered to engage in strong judicial review, would license the belief, on the part of members of the legal community, that the decisions reached by the court were likely to ensure that constitutional rights and procedures would consistently be interpreted so as to protect the autonomy of the public sphere (in its various forms) and ensure that the connection between the political public sphere and the legal code remained intact such that the use of strong judicial review would not have to be seen as normatively undesirable. Even if we take this to be all that Habermas is saying, however, there would still be a very significant problem with his account. The problem that I have in mind here is similar to the challenge to strong judicial review which we have seen Jeremy Waldron raise. Waldron, recall, made use of the concept of epistemic self-aggrandizement to make clear that assigning constitutional interpretive authority to a small group of judges requires us to explain why we ought to expect those judges to be better positioned than the body politic to reach correct decisions about how constitutional rights and procedures should be interpreted. 265 This problem reoccurs with additional force for an account like Habermas’s. To see why, recall that Habermas’s social theory is grounded upon his theory of lifeworld rationality. And recall, further, that, per the basis of that theory, UP, members of the lifeworld take a process of inclusive, non-coercive, and consensus-oriented argumentation to be the appropriate method to use in correctly resolving disputes about what is true or right. Now, if this account is correct, then members of the lifeworld cannot be expected to see the assignment of authority to interpret the constitution to a constitutional court as one which is more likely than the assignment of that authority to the deliberating public (as a whole) to result in correct resolution to instances of constitutional disagreement (i.e. disagreement about how to interpret the constitution). The reason why is that the commitment to inclusivity which is part and parcel of the theory of argumentation (which itself is a core part of UP) would seem to be straightforwardly better realized by a process of widespread public communication (temporarily terminating either in public referendums about disputed constitutional questions or in elections in which legislators themselves are empowered to interpret the constitution on the basis of the political program on which they ran) than it would be by a process of deliberation undertaken by a small group of judges. And this would be true even if the judicial deliberation process was structured in such a way that the justices were strongly incentivized to be open to, and to be willing to learn from (i.e. take into critical consideration), the public opinion emanating from a robust legal public sphere. This is because the only plausible reason to prefer assigning constitutional interpretative authority to a group of judges, rather than to the deliberating and voting public, would be because we expect those judges to be better able to make determinations about which arguments developed in the legal public sphere are most convincing. But this would be to decide in favor of relying on a less inclusive process of communication, rather than a more inclusive process, when 266 the question to be resolved is a question of constitutional interpretation. But to decide this way would be to come straightforwardly into conflict with the norms of communication oriented to mutual understanding which are reconstructed in Habermas’s theory of lifeworld rationality, because one of these norms, as I have just said, involves a commitment to inclusivity (and is reconstructed in terms of the idea that a more inclusive argumentative and decision-making process is likely to be superior to a less inclusive argumentative and decision-making process from the perspective of arriving at correct conclusions). Thus, the use of a constitutional court to resolve constitutional indeterminacy would have to be understood as being in significant tension with the practical commitment to communication oriented to mutual understanding which we have seen Habermas hold as a nearly universally shared commitment for members of the lifeworld. Therefore, from the perspective of members of the legal community, the use of strong judicial review, ultimately, would still have to be seen as normatively problematic, because it would have to be seen as tending to undermine the legitimacy-basis of the legal system as a whole154. 3.2.2 Tentative Conclusion Taken together, the three objections which I have assembled in this section suggest that, despite Habermas’s argument in favor of strong judicial review, there are many good reasons to see it as a process which might work to undermine the legitimacy of constitutional-democratic legal systems. I submit that the most powerful of these is the argument that I have just made. If 154 This is not to say that, on Habermas’s account, all use of decision-making bodies which are not directly tied to public communication processes causes legitimacy problems. It is to say, instead, that when it comes to resolving constitutional questions, Habermas, given his social theory, will not be able to find a plausible reason to prefer a less inclusive decision-making process to a more inclusive decision-making process. This is because, even if the justices of a constitutional court were determined to learn from public communication, still members of the lifeworld should be expected, if Habermas’s account of lifeworld rationality is correct, to see public referendums or elections, following a process of public communication in which the disputed issue was taken up, to be more likely to reach a correct determination, because these are more inclusive and equitable communicative processes of opinion- formation. They are, in short, communication and decision-making processes in which more people can participate. 267 that argument is on the right track, then strong judicial review, on Habermas’s own theory of lifeworld rationality, should make it relatively less likely that constitutional rights will be interpreted in accordance with communicatively generated public opinion than would be the case if constitutional indeterminacy were resolved through inclusive public communication processes which terminated in elections or referendums. But, in that case, members of the lifeworld should be expected to believe that constitutional courts represent a comparatively deficient decision- making mechanism when it comes to constitutional interpretation, because members of the lifeworld are committed to the idea that, if we want to find a true or correct answer to a truth- directed or a normative question (and this plainly would include questions about which rights are necessary in order for communication oriented to mutual understanding to take place), the appropriate practice to rely on is engagement in communication oriented to mutual understanding itself. This suggests that Habermas’s attempt to legitimate strong judicial review fails, and that his argument, interpreted as a qualified defense of the American Supreme Court’s empowerment to engage in strong judicial review (i.e. a defense which shows that the Court’s power would not be normatively problematic if the Court were to meet the conditions Habermas lays out), does not advance the proponents of strong judicial review. This suggestion would be able to be seen as something even more, a reasonable suspicion, if some alternative decision-making procedure, like the ones I have merely suggested just now, could be described in relative detail and shown to be practically feasible. I will draw on the well-known examples of the British and Canadian practices of constitutional interpretation to make this case below. First, however, I will turn to responses that could be made on Habermas’s behalf. 268 3.3 Responses Available to Habermas In this section I will briefly outline the different responses which an astute defender of Habermas’s position might attempt to make to the three objections which I have just outlined. I will argue that, though Habermas might have some ability to respond to the objections associated with Tushnet (a.1) and Bellamy (b.1), or at least to show that they are not necessarily fatal, he cannot overcome the strong objection, grounded on his own social theory (c.1). (a.1) In response to Tushnet’s problem of judicial overhang, Habermas might claim that this problem would not necessarily afflict a constitutional court whose members explicitly adopted a proceduralist paradigm and made it clear that they considered the legal public sphere a centrally important resource. In that case we might expect members of the public to be reassured that the practice of constitutional interpretation is one in which they are well suited to participate. The plausibility of this response would ultimately be an empirical question. (b.1) It is more difficult for Habermas to respond to Bellamy’s concern that the power possessed by members of the court, because it seems to escape the public’s control, will work to undermine the political culture which is necessary for the long-term maintenance of an autonomous public sphere. Against this possibility Habermas might be tempted to argue, with Dworkin, that long terms of tenure and relative isolation from political pressure are important in order for judges to be in a position to dispassionately consider the arguments developed in the legal public sphere. But this response would ultimately be unconvincing, since Habermas is willing to see the ability of members of the public to pressure lawmakers to be a salutary characteristic of the structure of constitutional-democratic legal systems, and there is no obvious reason to believe that questions relating to the application of the constitutional law are fundamentally different from questions relating to the generation of the legal code itself, such 269 that, if it is good to enable public pressure to maintain the connection between public communication and the legislature, it is plausible to believe that it would be good to do something similar for the judiciary. This route of response blocked off, Habermas might simply have to rely on the argument that constitutional courts are a deeply entrenched institution in legal systems like the United States’ and the German Federal Republic’s. Therefore, he might argue, since these institutions can play the role of constitutional interpreter plausibly well, and since it would be difficult, and perhaps impossible, to replace them, we ought simply to focus on defining the conditions under which constitutional courts would not significantly damage the legitimation status of the legal system. (c.1) Though the first two objections are significant, it is especially difficult to imagine how Habermas might respond successfully to the last one. Indeed, historical examples of legal systems which resolve constitutional indeterminacy through direct elections of legislators (who are themselves empowered to interpret the constitutional higher law) suggest that, at least under certain historical conditions, this is a practically workable solution to the problem of constitutional indeterminacy. The legal systems of both Canada and Great Britain, for instance, have done without strong judicial review of constitutionality for quite a long time and have not collapsed into a mess of contradictory constitutional interpretations and legal instability. 3.3.1 Popular Constitutionalism It is beyond the scope of the project being pursued here to develop an exhaustive comparative study of the relative merits of popular constitutionalism (i.e. an approach to constitutional interpretation which relies on democratic elections, or referendums, to resolve disputes about the constitution) and judicial supremacy (i.e. an approach to constitutional 270 interpretation which gives constitutional courts the last, and definitive, word when it comes to resolving constitutional disputes). Indeed, my topic here is the more limited question of whether or not Habermas’s qualified defense of strong judicial review is compelling as an entry into the American debate on that question. At this point I have argued that, if a popular constitutionalist project of constitutional interpretation would not have to be expected to produce serious legal instability (or otherwise have to be considered implausible), then, for reasons internal to his social-theoretic account, Habermas should have been much less optimistic about strong judicial review. Indeed, we might have expected that he should, ultimately, claim that the practice of strong judicial review would be legitimacy-compromising for constitutional-democratic legal systems, including the legal system of the United States. Habermas should have noted that, on the other hand, popular constitutionalist alternatives would not necessarily be legitimacy-compromising, that they would be more normatively desirable. Although I cannot settle the matter definitively by providing a thorough account of popular constitutionalist alternatives to strong judicial review, still, in order to motivate my argument, I will provide a brief primer on two different, historically well-established, practices of popular constitutional interpretation – the parliamentary sovereignty approach of Great Britain and the weak judicial review approach of the Canadian legal system. Again, the very existence of these forms of popular constitutional interpretation, and their (more than) apparent compatibility with the rule of law, is a strong suggestion that my ultimately negative conclusion about the tenability of Habermas’s qualified support of strong judicial review is correct. 3.3.2 Parliamentary Sovereignty: Britain 271 To begin with the legal system of Great Britain, it is well-known that the British system differs from the American and German legal systems insofar as the British constitution is “partly written and wholly uncodified”. What this means is that, unlike the American Constitution, the British Constitution is understood as being made up of rights and procedures which have been legally promulgated by parliament. Though these rights and procedures have attained something like the status of a constitutionally anchored rights (in the minds of the members of the public), they are ultimately revisable through the ordinary law-making authority of parliament. What we have in the example of the British legal system, then, is an instance in which it seems that popular constitutionalism has been wholly realized. Decisions about how to interpret constitutional rights in the British system are taken by popularly elected representatives. These representatives must periodically stand for re-election, such that their interpretive constitutional decisions are always subject to further revision. The members of the legal community, the general public, then, are in a position to directly weigh-in on questions of which basic rights and procedures ought to regulate the legal system. Now, as I have already said, it is well beyond the scope of my project here to give an exhaustive analysis of the British legal system. There may well be elements of a system of parliamentary supremacy that are, all things considered, normatively undesirable. However, from the perspective of Habermas’s reconstruction of the legitimacy-basis of constitutional democracy, this system of parliamentary control is clearly superior, on conceptual grounds, to the strong judicial review alternative. This is because, once again, the former, much more so than the latter, system attains the communicative norm of inclusivity. In other words, the system of parliamentary supremacy should be expected to be seen, by members of a rationalized lifeworld, as superior to strong judicial review on the grounds that it can be expected, because it comes 272 closer to realizing the ideal of resolving disputes in accordance with public communication processes that approximately realize the norms of communication oriented to mutual understanding, to do a better job at determining which constitutional rights and procedures are necessary in order for public communication processes themselves to overcome existing impediments to realizing the norms of communication oriented to mutual understanding. This conceptual argument, coupled with the fact that the British legal system has not, through its use of parliamentary supremacy, collapsed into a mess of contradictory constitutional interpretations or legal instability, suggests that Habermas ought to have seen that, even if the demanding conditions that he set for strong judicial review were met, still strong judicial review would be problematic for the legitimacy of those constitutional-democratic systems which make use of it. 3.3.3 The Notwithstanding Clause: Canada Another example of a popular constitutionalist practice of constitutional interpretation can be found in the Canadian legal system. Like the British system of parliamentary sovereignty, the Canadian legal system does not have a single written constitution. Instead, Canadian constitutional law is inscribed in several important documents. Two of the most important of these are the Constitution Act of 1867 and the Constitution Act of 1982. The latter includes the Canadian Charter of Rights and Freedoms, a document somewhat analogous to the American Bill of Rights. The rights and procedures outlined in the several Canadian constitutional documents are understood as representing the Canadian Constitution. Canada’s legal system enables a constitutional court to consider administrative acts or legislative decisions for their compatibility with the constitutional higher law. As I have already mentioned, however, the Canadian constitutional court is invested not with the power of strong judicial review, but instead with something closer to (what Waldron calls) weak judicial review. 273 In short, the Supreme Court of Canada is empowered to declare administrative acts or legislative decisions unconstitutional and to block them from coming into force, but administrators and legislators can respond to this decision by attempting to pass an override through the legislative forum. This legislative override, called a notwithstanding clause, has the effect of mooting the Court’s judgment for a five-year period. The Court’s attempt to stop an administrative action or a legislative decision from going into effect, then, can be overridden by the decisions of popularly elected representatives. This has the effect of throwing the disputed question over to the voting public for an ultimate decision, because the five-year period ensures that the public will be able to weigh-in on the dispute, through parliamentary elections, before the Court’s order declaring the act or decision unconstitutional would go back into effect. The newly elected government can then decide whether to adopt another 5-year notwithstanding override of the Court’s decision. What is interesting about the Canadian practice of constitutional interpretation is the way that it preserves the constitutional court’s place in the legal system but, at the same time, removes from it the final authority to determine the meaning of constitutional rights and procedures. By adopting the notwithstanding provision, the Canadian system ensures that members of the public, through a voting process which is preceded by a period of opinion-and- will-formation (to use Habermas’s term), are able to exercise authority over the meaning of constitutional rights and provisions if they deem the Court’s constitutional interpretation to be flawed. This “weak judicial review” way of organizing constitutional interpretation, then, also appears to be superior to the practice of strong judicial review from the perspective of something like Habermas’s Kantian Republicanism. The reason is clear – Kantian Republicanism both reconstructs the legitimacy of the constitutional-democratic legal system on the grounds that the system enables public communication processes to take place and to become legally efficacious 274 and is premised on a theory of communication which holds that processes of communication must be as inclusive, non-coercive, and equitable as possible if they are to arrive at correct answers to disputed questions. But resolving constitutional indeterminacy through something like the Canadian practice of constitutional interpretation is to make use of a significantly more inclusive, equitable, and non-coercive communicative practice than strong judicial review (for obvious reasons, because all citizens of Canada are enabled to participate directly in the process of communication about the relevant issue and the decision-making process which resolves it). Therefore, members of a rationalized lifeworld would have to be expected to see the Canadian practice of constitutional interpretation to be more likely than strong judicial review to arrive at correct determinations about the rights and procedures necessary in order for public communication processes to take place and to become legally efficacious, such that, in terms of their impact on the legitimacy-status of the system, something like the Canadian practice would have to be preferred. 3.4 Conclusion If it actually is the case that the popular constitutionalist alternatives, briefly described above, do not render the legal code practically useless (because unpredictable or chaotic), then it seems that Habermas would have to accept, for reasons already stated, that they should be seen as superior to the practice of strong judicial review by a constitutional court. Again, the main point here is that Habermas claims that members of the lifeworld have internalized a practical commitment to resolving normative disputes through communication oriented to mutual understanding. But one of the norms of argumentation which this practice presupposes is the opening up of the communication community to the input and judgment of all of those who are practically affected by the normative question at issue. But all members of a legal system are, at 275 least potentially, impacted by the way that constitutional questions are resolved. Thus, the practice of resolving constitutional questions through a process of judicial argumentation begins to seem straightforwardly normatively undesirable in the face of plausible alternative practices of dispute resolution, like the Canadian and British examples, which would more directly involve the members of the public, both in the capacity as contributors of arguments to the legal public sphere and in the capacity of critical reactors to the arguments that can be found there who ultimately can resolve questions of constitutional indeterminacy through making judgments about what would be best. As Waldron has pointed out, any attempt to claim that this practice would be inferior to the decision-making of a constitutional court would have to nominate some capacity of that court which would make it superior to the general public’s ability to apply scrutiny to legal questions and resolve them in accordance with the arguments that develop in the legal public sphere. But the critical capacity of a small group of judges, just nine in the American system, cannot plausibly be maintained to be superior to the critical capacity of the communicating public if we do, in fact, accept Habermas’s theory of lifeworld rationality. Having explicated Habermas’s argument in favor of strong judicial review, subjected it to critical scrutiny, and considered how Habermas might respond to some significant objections, I am now in a position to render a stronger conclusion about Habermas’s defense of strong judicial review. I have tried to suggest that the last objection to Habermas’s approach is a fatal one. The reason is clear – the use of strong judicial review is not a foregone conclusion for legal systems. Indeed, alternative decision-making procedures might be used to determine how the constitutional basic law should be interpreted. And, further, historical evidence suggests that there are alternative practices which would lead to decisions which could be expected to regularly correspond with the will of the general public – democratic decision-making 276 procedures whereby constitutional controversies are resolved through the election of representatives after a period of public communication. If this is true, then Habermas’s defense of strong judicial review must, ultimately, be seen as unconvincing. Applied to the American debate about the Supreme Court’s power to engage in strong judicial review, it would have to be seen as an interesting, but ultimately unconvincing (because internally inconsistent), entry on the side of the pro-strong judicial review theorists. Having reached this point in my analysis, a further question arises. Why does Habermas attempt to defend a political practice which, ultimately, cannot be taken to be normatively desirable given his theory of modern rationality? How can we explain this? In the next chapter I will propose a possible explanation for Habermas’s attempt to hang on to the guidance of constitutional experts in the face of his radically democratic and participatory theory of lifeworld rationality. I will also outline some different areas of research which the project that I have undertaken here suggests. 277 4 Conclusion: Possible Explanations and Further Research Having now completed my analysis of Habermas qualified defense of strong judicial review, it remains for me to propose an explanation for Habermas’s failure to see that even a form of judicial review which met the strict conditions that he outlines would remain problematic from the perspective of legitimacy. I think that there are at least two plausible explanations for this failure. First, as I have already alluded to above, Habermas’s project might be conceptualized as a form of reconstructive analysis that should not be taken to be required to offer alternatives to deeply entrenched elements of constitutional-democratic legal systems. In other words, Habermas might maintain that my critical analysis of his project misses the mark insofar as, in his thinking about strong judicial review, he is not attempting to determine what form of constitutional interpretation would be ideal from the perspective of Kantian Republicanism, but instead merely attempting to show how an existing form of constitutional interpretation (i.e. strong judicial review) could come as close as possible to living up to the legitimation-burden set by Kantian Republicanism. As I will argue momentarily, though some defenders of Habermas might desire to make this defense of his position, it is not really a plausible one. Second, and more plausibly, we might claim to detect in Habermas’s qualified defense of strong judicial review his concern to maintain relative consistency in the meaning of the constitutional basic law (and therefore to maintain the ability of the constitutional law to organize the behavior of citizens). On this reading, Habermas would be committed to the position that constitutional courts are more likely than popular constitutionalist alternatives to develop the constitutional law in a coherent, consistent, and unchaotic way over time. I think that some version of this second explanation is at least more plausible than the first and will engage 278 in some speculation about it in my description of the further research for which the project that I have laid out here calls. 4.1 A Merely Reconstructive Project? One possible explanation for Habermas’s over-optimistic assessment of strong judicial review has to do with how he conceives his project in political philosophy. Habermas has, after all, repeatedly disclaimed the idea that philosophers are in a good position to dictate to members of the public how they ought to structure their legal systems or political lives. Instead, in accordance with his theory of communicative rationality, Habermas sees the resolution of political questions like these as properly the business of public communication. His idea is that public communication processes are the only processes which are fit, over time, to identify workable political institutions. The job of determining how these should be structured, then, belongs to the communicating public, not to theorists who possess theoretical expertise. From this perspective, it might appear that Habermas’s thinking about strong judicial review makes good sense. If we adopt this perspective, what we will see in Habermas’s qualified defense of strong judicial review is Habermas thinking about how an actually existing element of the legal systems of some constitutional democracies, like the United States, might function so as not to interfere with the legitimacy of those systems. Habermas would be reluctant to say more than this, to make comparative analyses of different forms of constitutional interpretation or to recommend wholesale changes, because he would see this as a question which members of the public themselves, in their capacity as citizens, would have to work out on their own. This said, while it is undoubtedly true that Habermas does see the role of the philosopher in something like the limited way that I have described, I do not think that this explanation for Habermas’s overly-optimistic account of strong judicial review can ultimately be thought to be 279 compelling. The reason is that, though we might grant to Habermas that he is right that philosophers are not in a position to pronounce upon how, specifically, the legal (or economic) system ought to be reformed, still Habermas, as a critical theorist, does see his social and political theories as having a diagnostic component. Thus, though Habermas might deny that he is in a position to say how, exactly, constitutional democracies like the United States or Germany ought to resolve constitutional indeterminacy, still it is incumbent upon him, when he launches even a limited defense of strong judicial review, to make it clear how that practice threatens to imperil the legitimacy-status of constitutional-democratic legal systems. Otherwise his reconstruction of strong judicial review would be Pangloss-ian. If this is true, then Habermas’s failure to fully bring out the legitimacy-imperiling elements of the practice of strong judicial review remains puzzling. What accounts for his failure to notice how this practice of constitutional interpretation is in tension with his reconstruction of the legitimacy-basis of constitutional-democracy? 4.2 Allergic to Populism? The Need for Coherence in Constitutional Interpretation? Perhaps a more plausible explanation for Habermas’s overly-optimistic account of strong judicial review can be found in his biography. As I have already pointed out (in chapter 1), Habermas explains his reasons for engaging in philosophy and social theory at all in terms of a personal crisis which he experienced toward the end of his youth in Nazi Germany. The details of Habermas’s early life are well known. He was drafted into the Hitler Youth and only narrowly avoided seeing combat. And just as well known is Habermas’s determination to defend constitutional democracy. As we have already seen, Habermas takes this form of government to be a necessary condition for social emancipation. 280 To some commentators, the theory of modern rationality which Habermas developed in the two volumes of the Theory of Communicative Action seemed to suggest that Habermas would, in his political philosophy, advocate for a “radical” form of democracy. After all, the claim that members of the lifeworld have internalized a commitment to resolving disputes and generating collective action plans through communication oriented to mutual understanding does evoke utopian images of society as a communicatively self-organizing collective. That Habermas ultimately, as we have seen, cashes out his social theory in terms of a defense of constitutional democracy, in which public communication is connected to the legal system through various institutionalized discourses and legally empowered law-making and applying bodies (e.g. the legislature and the courts), then, can seem to be a betrayal of this idealistic impulse. How Habermas would respond to this charge is clear enough. He would, first of all, deny that his account of democracy, just because it is a legally mediated one, is not radical. Indeed, Habermas frequently refers to the potentially radical nature of constitutional-democratic legal systems. He would, further, point out that the attempt to resolve political disagreements directly through unmediated large-scale processes of public communication is an idealistic pipe-dream which would not be functionally realizable for a complex modern society. The only plausible way for public communication processes to regularly impact the legal system, on his account, is for public opinion to make its way from the general public spheres, through specialized discourses (e.g. the legal public sphere), to legally authorized law-making or applying officials, who are empowered to change (or re-interpret) the legal code155. This process has the advantage of refining public opinion ever more completely such that the actions ultimately taken by the 155 Indeed, only the existence of the legal system, with state power enforcing the law, enables public communication to organize social life on Habermas’s account. Anarchistic, collective self-organization, therefore, would ultimately mean the inability of public communication to play a major role in the shaping of public affairs. 281 legal system can be expected to be reasonable. In short, because the public opinion which originally develops in the general public spheres is critically considered over and over again as it is transmitted from those spheres to legally empowered authorities, its ultimate content can be considered the outcome of a process of rigorous critical analysis. What is potentially problematic about this approach is that, at least in the case of constitutional courts, it appears, as I have argued, that the connection between the decisions reached by the court and communicatively processed public opinion is very tenuous. In short there is not much to the structure of constitutional courts (at least if we are envisioning them, with Habermas, as they are structured in the United States and the German Federal Republic) which ensures that their decision-making will be influenced by the best available arguments which have developed in the legal public sphere, and, even if there were, still I have shown that, on conceptual grounds, the use of courts to settle constitutional disputes cannot (if we accept Habermas’s reconstruction of the commitments which we have taken on through socialization into a rationalized lifeworld) be taken to be normatively superior to popular constitutionalist alternatives (e.g. the Canadian model described above). Seeing this, we might be tempted to conclude that the reason that Habermas does not appear to notice this fact is that, in his political philosophy at least, his ultimate posture is defensive. We might speculate that, because he is eager to prevent popular majorities from tearing apart constitutional-democratic institutions, he is content to countenance a form of constitutional interpretation which is only minimally connected to the public opinion generated in the public sphere. Leaving constitutional interpretation largely in the hands of legal experts seems a safer bet, from the perspective of maintaining the constitutional-democratic institutions 282 and rights which have, improbably, become dominant in some societies, than is relying on public processes of communication. If the explanation just given were correct, then we would have to say that Habermas, at the end of the day, is ultimately moved to defend practices like strong judicial review because he distrusts the reasoning capacities, or willingness to reason, of the masses. However, another possibility is that Habermas is ultimately reluctant to call strong judicial review normatively problematic because he is concerned that popular constitutionalist alternatives to strong judicial review would be more likely than strong judicial review to produce interpretations of basic constitutional law which would diverge radically from previous interpretations and therefore generate legal uncertainty. Since significant legal uncertainty would undermine the ability of constitutional rights and procedures to organize the behavior of citizens at all, this would have to be seen as a highly problematic form of constitutional interpretation. Thus, Habermas might believe that, even though strong judicial review is normatively problematic (for the reasons laid out in chapter 3), still it is superior to the main available alternative, popular constitutionalism. This explanation of Habermas’s willingness to countenance the problematic elements of strong judicial review is, of course, purely speculative. I offer it now only as a hypothesis about what might account for Habermas defending, in an admittedly highly qualified way, a practice that seems clearly to be at odds with core elements of his overall social theory. Further research would be required to determine whether or not the misgivings about popular constitutionalism that I have imputed to Habermas could be justified. I have tried to suggest, above, that the historical examples of the British and Canadian systems suggest that they would not be. However this question is answered, at the end of the day, the resonant point remains that 283 Habermas’s defense of strong judicial review, however limited, simply does not sit comfortably with his overall social-theoretic project. 4.3 Further Research The project that I have completed in this dissertation – an investigation of Habermas’s thinking about strong judicial review – has raised some interesting lines of inquiry. First, one set of questions has to do with whether or not there are other areas of his political philosophy in which Habermas might be too optimistic about the connection between public communication and political institutions. In the form of a question we might ask: Despite his apparent commitment to them, can we detect a general mistrust of actual public communication processes in Habermas’s account? Are there other areas of Habermas’s political philosophy where institutionalized decision-making processes threaten to break off significantly from processes of public opinion and will formation? Secondly, the project I have pursued here also raises the question whether or not there are other ways that Habermas’s communicative theory of society be cashed out in political terms. I have tried to suggest, above, that Habermas’s ultimate political conclusions, in Between Facts and Norms, might rest too much on his worry that allowing public communication processes to more directly affect the legal code would lead to legal instability. But is this a necessary conclusion given Habermas’s social theory? Or could his communication theory of society be used to support alternative, more directly democratic, political programs? Both of these questions are interesting and could be the subject of much further research. One final area of inquiry which this dissertation suggests is an investigation into whether or not there are any circumstances that would make the use of strong judicial review normatively desirable. What I have done in this dissertation is to develop an answer to the question whether 284 or not Habermas’s qualified defense of strong judicial review is compelling as an entry into the American debate about the Supreme Court’s empowerment to engage in strong judicial review. This project, of course, does not rule out the possibility that some alternative defense of strong judicial review (either in general or in the American case in particular) would be compelling. However, what reflection on Habermas’s account suggests is that, if we are going to connect communication oriented to mutual understanding to the legal system’s legitimacy in something like the way that Habermas does, then any practice of legally binding decision-making which is not structured in such a way that actual processes of communicative public opinion formation can be expected to impact the behavior of the institution in question will have to be thought of as suspect. This conclusion suggests that, if we want to investigate the health of constitutional- democratic legal systems from the perspective of a communication theory of society, then the first step must be to learn from social-scientific accounts what existing elements of social reality (whether these be culturally engrained ideologies or existing social systems, like capitalism), impede the existence and legal efficaciousness of high-quality public communication. Thus, further research would have to involve integrating Habermas’s general communication-theoretic account of society with the critical insights of theorists like Amy Allen, who focus on the cultural and systemic elements of social reality that impede public communication processes from even approximately realizing the norms of communication oriented to mutual understanding. 285 BIBLIOGRAPHY 286 BIBLIOGRAPHY Abizadeh, Arash. "On the philosophy/rhetoric binaries: Or, is Habermasian discourse motivationally impotent?" Philosophy and Social Criticism 33.4 (2007): 445-472. Ackerman, Bruce and James S. Fishkin. Deliberation Day. New Haven, CT: Yale University Press, 2004. Ackerman, Bruce. We the People, volume 2: Transformations. Cambridge, MA: The Belknap Press of Harvard University Press, 1998. —. We the People, volume I. Cambridge, MA: The Belknap Press of Harvard University Press, Adorno, Theodor and Max Horkheimer. Dialectic of Enlightenment. New York, NY: Verso, 1991. 1944. Alexander, Larry and Lawrence B. Solum . "Popular? Constitutionalism?" Harvard Law Review Alexander, Larry. "Is Judicial Review Democratic? A Comment on Harel." Law and Philosophy 118.5 (2005): 1594-1640. 22.3 (2003): 277-283. Allen, Amy. The Politics of Our Selves. New York, NY: Columbia University Press, 2008. Anderson, Perry. Considerations on Western Marxism. London, England: Verso, 1976. Apel, Karl-Otto. "Normatively Grounding 'Critical Theory' through Recourse to the Lifeworld? A Transcendental-Pragmatic Attempt to Think with Habermas Against Habermas." Rasmussen, David and James Swindal. Critical Theory. Sage Publishing, 2003. Barreyro, Maria Emilia. "The Purest Form of Communicative Power. A reinterpretation of the key to the legitimacy of norms in Habermas's model of democracy." Constellations 25.3 (2018): 459-473. Bassham, Gregory. "Freedom's Politics: A Review Essay of Ronald Dworkin's Freedom's Law: The Moral Reading of the American Constitution." Notre Dame Law Review 72.4 (1997): 1235-1276. Baxter, Hugh. "Sstem and Life-World in Habermas's 'Theory of Communicative Action'." Theory and Society 16 (1987): 39-86. —. "A Comment on Mark Tushnet's 'Some Notes on Congressional Capacity to Interpret the Constitution'." Boston University Law Review 89 (2009): 511. 287 Bellamy, Richard. Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy. Cambridge, UK: Cambridge University Press, 2007. Benhabib, Seyla. Critique, Norm, and Utopia: A Study of the Foundations of Critical Theory. New York, NY: Columbia University Press, 1986. Berlin, Isaiah. Liberty: Incorporating Four Essays on Liberty. Oxford, England: Oxford University Press, 2002. Bhatia, Gautam. "Discursive Democracy and the Limits of Free Speech." Constellations 25.3 (2018): 344-358. Bickel, Alexander. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. New Haven, CT: Yale University Press, 1986. Bohman, James. "Complexity, Pluralism, and the Constitutional State." Law and Society 28.4 —. "Deliberative Democracy and the Epistemic Benefits of Diversity." Episteme 3.3 (2012): (1994): 897-930. 175-191. —. "Political Communication and the Epistemic Value of Diversity: Deliberation and Legitimation in Media Societies." Communication Theory 17.4 (2007): 348-355. Butler, Judith. The Psychic Life in Power: Theories in Subjection. Stanford, CA: Stanford University Press, 1997. Castells, Manuell. Communication Power. Oxford, England: Oxford University Press, 2013. Choper, Jesse H. Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court. New Orleans, LA: Quid Pro Quo Books, 2013. Cohen, G.A. Karl Marx's Theory of History: A Defence. Princeton, NJ: Princeton University Press, 1978. Coles, Romand. "Communicative Action and Dialogical Ethics." Polity 25.1 (1992): 71-94. Cook, Deborah. Adorno, Habermas, and the Search for a Rational Society. London, England: Routledge, 2004. Cooke, Maeve. "The Point of Discourse." Social and Legal Studies 17.1 (2008): 97-103. Couture, Tony. "Habermas, Values, and the Rational, Internal Structure of Communication." Journal of Value Inquiry 27.3-4 (1993): 403-416. 288 Dahms, Harry F. "Theory in Weberian Marxism: Patterns of Critical Social Theory in Lukacs and Habermas." Sociological Theory 15.3 (1997): 181-214. Descartes, Rene. Meditations on First Philosophy. Hackett Publishing Company, 1993. Dews, Peter. "The Paradigm Shift to Communication and the Question of Subjectivity: Reflections on Habermas, Lacan, and Mead." Revue Internationale de Philosophie 194.4 (1995): 483-519. Diesing, Paul. "Objectivism vs. Subjectivism in the Social Sciences." Philosophy of Science 33.1/2 (1966): 124-133. Dred Scott v. Sandford. No. 60 U.S. 393 19 How. 393; 15 L. Ed. 691; 1856 WL 8721; 1857 U.S. LEXIS 472. Supreme Court of the United States. 6 March 1857. Durand-Gasselin, Jean-Marc. "Introduction: The Work of Jürgen Habermas: Roots, Trunk and Branches." Habermas, Jürgen. Philosophical Introductions: Five Approaches to Communicative Reason. Cambridge, England: Polity Press, 2018. Dworkin, Ronald. A Matter of Principle. Cambridge, MA: Harvard University Press, 1985. —. Freedom's Law: The Moral Reading of the American Constitution. New York: Oxford —. Justice for Hedgehogs. Cambridge, MA: The Belknap Press of Harvard University Press, University Press, 2005. 2011. —. Law's Empire. Cambridge, MA: The Belknap Press of Harvard University Press, 1986. —. "Objectivity and Truth: You'd Better Believe It." Philosophy and Public Affairs 25.2 (1996): —. Sovereign Virtue: The Theory and Practice of Equality. Cambridge, MA: Harvard University —. Taking Rights Seriously. Cambridge, MA: Harvard University Press, 1978. Eisgruber, Christoper. Constitutional Self-Government. Cambridge, MA: Harvard University 87-139. Press, 2000. Press, 2007. Ely, John Hart. Democracy and Distrust: A Theory of Judicial Review. Cambridge, MA: Harvard University Press, 1980. Feldman, Noah. The Three Lives of James Madison. New York, NY: Random House, 2017. Feteris, Eveline T. Fundamentals of Legal Argumentation: A Survey of Theories on the Justification of Judicial Decisions. Springer Netherlands, 1999. 289 Finlayson, Gordon. Habermas: A Very Short Introduction. Oxford, England: Oxford University Flood, Tony. "Jürgen Habermas's Critique of Marxism." Science and Society 41.4 (1977/1978): Press, 2005. 448-464. Flynn, Jeffrey. "Communicative Power in Habermas's Theory of Democracy." European Journal of Political Theory 3.4 (2004): 433-454. Forst, Rainer. "The Rule of Reasons. Three Models of Deliberative Democracy." Ratio Juris 14.4 (2001): 345-378. Fraser, Nancy. "What's Critical About Critical Theory? The Case of Habermas and Gender." New German Critique 35 (1985): 97-131. Fred Korematsu vs. United States. No. 323 U.S. 214 65 S. Ct. 193; 89 L. Ed. 194; 1944 U.S. LEXIS 1341. Supreme Court of the United States. 18 December 1944. Freeman, Samuel. "Constitutional Democracy and the Legitimacy of Judicial Review." Law and Philosophy 9.4 (1990-1991): 327-370. Friedman, Barry. "Dialogue and Judicial Review." Michigan Law Review 91.4 (1993): 577-682. —. "The Will of the People and the Process of Constitutional Change." The George Washington Law Review 78.6 (2010): 1232-1254. —. The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution. New York, NY: Farrar, Straus and Giroux, 2010. Friedman, Milton. Capitalism and Freedom. Chicago, IL: University of Chicago Press, 2002. Fultner, Barbara. "Intelligibility and Conflict Resolution in the Lifeworld." Continental Philosophy Review 34.4 (2001): 419-436. Gandesha, Samir and Johan F. Hartle. The Spell of Capital: Reification and Spectacle. Amsterdam University Press, 2017. Giddens, Antony. "Marx, Weber, and the Development of Capitalism." Sociology 4.3 (1970): 289-310. Glendhill, James. "The ideal and reality of epistemic proceduralism." Critical Review of International Social and Political Philosophy 20.4 (2015): 486-507. Goodin, Robert E. "The Epistemic Benefits of Deliberative Democracy." Policy Sciences 50.3 (2017): 351-366. 290 Grodnick, Stephen. "Rediscovering Radical Democracy in Habremas's Between Facts and Norms." Constellations 12.3 (2005): 392-408. Gutmann, Amy and Dennis Thompson. Democracy and Disagreement: Why moral conflict cannot be avoided in politics, and what should be done about it. Cambridge, MA: The Belknap Press of Harvard University Press, 1996. Habermas, Jürgen. A Berlin Repulic: Writings on Germany. Cambridge, UK: Polity Press, 1998. Habermas, Jürgen. "A Reply." Honneth, Axel and Hans Joas. Communicative Action: Essays on Jürgen Habermas's "The Theory of Communicative Action". Cambridge, UK: MIT Press, 1991. Habermas, Jürgen. "A Reply to My Critics." Held, D. and J. Thompson. Habermas: Critical Debates. Cambridge, UK: MIT Press, 1982. —. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. Boston, MA: The MIT Press, 1998. —. Between Naturalism and Religion. Cambridge, UK: Polity Press, 2008. —. Communication and the Evolution of Society. Cambridge, UK: Polity Press, 1984. —. Europe: The Faltering Project. Cambridge, UK: Polity Press, 2009. —. Habermas: Autonomy and Solidarity. New York, NY: Verso, 1986. —. Justification and Application: Remarks on Discourse Ethics. Cambridge, UK: The MIT Press, 1994. —. Legitimation Crisis. Cambridge, UK: Polity Press, 1976. —. Moral Consciousness and Communicative Action. Cambridge, UK: Polity Press, 1990. —. On the Logic of the Social Sciences. Cambridge, UK: Polity Press, 1988. —. On the Pragmatics of Communication. Cambridge, UK: Polity Press, 1998. —. On the Pragmatics of Social Interaction: Preliminary Studies in the Theory of Communicative Action. Cambridge, UK: Polity Press, 2003. —. Postmetaphysical Thinking. Cambridge, UK: Polity Press, 1992. —. "Questions and Counter-Questions." Praxis International 4.3 (1984). 291 —. Religion and Rationality: Essays on Reason, God, and Modernity. Cambridge, UK: Polity Press, 2002. —. The Dialectics of Secularization. San Francisco, CA: Ignatius Press, 2005. —. The Divided West. Cambridge, UK: Polity Press, 2006. Habermas, Jürgen. "The Hermeneutic Claim to Universality." Bleicher, J. Contemporary Hermeneutics. Routledge and Kegan Paul, 1980. —. The Inclusion of the Other. Cambridge, UK: Polity Press, 1998. —. The Liberating Power of Symbols. Cambridge, UK: Polity Press, 2001. —. The Lure of Technocracy. Cambridge, UK: Polity Press, 2015. —. The Philosophical Discourse of Modernity. Cambridge, UK: The MIT Press, 1990. —. The Postnational Constellation. Cambridge, UK: Polity Press, 2001. —. The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society. Cambridge, UK: Polity Press, 1989. —. The Theory of Communicative Action, Volume 1: Reason and the Rationalization of Society. Boston, MA: Beacon Press, 1985. —. The Theory of Communicative Action, Volume 2: Lifeworld and System: A Critique of Functionalist Reason. Boston, MA: Beacon Press, 1987. —. Toward a Rational Society: Student Protest, Science, and Politics. Cambridge, UK: Polity —. Truth and Justification. Cambridge, UK: Polity Press, 2003. Hamilton, Alexander, James Madison and John Jay. The Federalist Papers. Signet Publishing Press, 1987. Company, 2003. Hand, Learned. The Bill of Rights. Cambridge, MA: Harvard University Press, 1958. Harel, Alon. "Rights-Based Judicial Review: A Democratic Justification." Law and Philosophy 22.3/4 (2003): 247-276. Harrington, Austin. "Some Problems with Gadamer's and Habermas' Dialogical Model of Sociological Understanding." Journal for the Theory of Social Behaviour 29.2 (1999): 371-384. 292 Hart, H. L. A. The Concept of Law. Oxford, England: Oxford University Press, 2012. Heath, Joseph. "Habermas and Analytical Marxism." Philosophy and Social Criticism 35.8 (2009): 891-919. Hedrick, Todd. Rawls and Habermas: Reason, Pluralism, and the Claims of Political Philosophy. Stanford, CA: Stanford University Press, 2010. Heller, Agnes. "Habermas and Marxism." Held, D. and J. Thompson. Habermas: Critical Debates. Cambridge, MA: MIT Press, 1982. 21-41. —. "On Habermas: Old Times." Thesis Eleven 143.1 (2017): 8-14. Hobbes, Thomas. Leviathan or the Matter, Forme and Power of a Commonwealth, Ecclesiasticall and Civill. Cambridge, MA: Cambridge University Press, 1904. Honig, Bonnie. "Dead Rights, Live Futures: A Reply to Habermas's "Constitutional Democracy"." Political Theory 29.6 (2001): 792-805. Hove, Thomas. "The Filter, the Alarm System, and the Sounding Board: Critical and Warning Functions of the Public Sphere." Communication and Critical/Cultural Studies 6.1 (2009): 19-38. Hughes, John A, W. W. Sharock and Peter J. Martin. Understanding Classical Sociology. London, England: Sage Publications Ltd., 1995. Hume, David. A Treatise of Human Nature. Oxford, England: Oxford University Press, 2000. Ingram, David. Habermas: Introduction and Analysis. Ithaca, NY: Cornell University Press, 2010. Jacoby, Russell. Dialectic of Defeat: Contours of Western Marxism. Cambridge, England: Cambridge University Press, 1981. Jay, Martin. Reason After Its Eclipse: On Late Critical Theory. Madison, WI: The University of Wisconsin Press, 2016. Kant, Immanuel. Critique of Pure Reason. Cambridge University Press, 1999. —. Practical Philosophy. Cambridge, England: Cambridge University Press, 1999. Kavanagh, Aileen. "Participation and Judicial Review: A Reply to Jeremy Waldron." Law and Philosophy 22.5 (2003): 451-486. Kearney, Joseph D. and Thomas W. Merrill. "The Influence of Amicus Curiae Briefs on the Supreme Court." University of Pennsylvania Law Review 148 (2000): 743-855. 293 Kellner, Douglas. "Habermas, the Public Sphere, and Democracy." Boros, D. and J.M. Glass. Re-Imagining Public Space. New York, NY: Pallgrave Macmillan, 2014. 19-43. Lafont, Cristina. "Philosophical Foundations of Judicial Review." Thorburn, D. Dyzenhaus and M. Philosophical Foundations of Constitutional Law. Oxford, England: Oxford University Press, 2016. Lebow, Richard Ned. "Weber's Tragic Legacy." Journal of International Political Theory 13.1 Lejarraga, Sebastian Linares. "Constitutional Rigidity and the Default Rule." Ratio Juris 27.4 (2016): 37-58. (2014): 540-549. Livingstone, Sonia and Peter Lunt. "The mass media, democracy and the public sphere." Livingstone, Sonia and Peter Lunt. Talk on Television: Audience Participation and Public Debate. London, UK: Routledge, 1994. 9-35. Lowy, Michael. "Anticapitalist Readings of Weber's Protestant Ethic: Ernst Bloch, Walter Benjamin, Gyorgy Lukacs, Eric Fromm." Logos 9.1 (2010). Lukacs, Georg. History and Class Consciousness. Cambridge, MA: The MIT Press, 1968. Macpherson, C.B. Democratic Theory: Essays in Retrieval. Oxford, England: Oxford University Press, 1973. Martin, Robert WT. "Between Consensus and Conflict: Habermas, Post-Modern Agonism and the Early American Public Sphere." Polity 37.3 (2005): 365-388. Marx, Karl. A Contribution to the Critique of Political Economy. Chicago, IL: Charles H. Kerr & Company, 1904. 1981. McCarthy, Thomas. The Critical Theory of Jürgen Habermas. Boston, MA: The MIT Press, Michelman, Frank I. Brennan and Democracy. Princeton, NJ: Princeton University Press, 1999. —. "Justice as Fairness, Legitimacy, and the Question of Judicial Review: A Comment." Fordham Law Review 72.5 (2004). Mill, J.S. On Liberty. London, England: John W. Parker and Son, West Strand, 1859. Moen, Atle. "Democracy and Public Communication: A Durkheimian lens on Habermas." Acta Sociologica 62.1 (2018): 20-33. Morrow, Raymond A. and David D. Brown. Critical Theory and Methodology. London, England: Sage Publications, 1994. 294 Mouzelis, Nicos. "Social and System Integration: Lockwood, Habermas, Giddens." Sociology 31.1 (1997): 111-119. Ndayambaje, Juvenal. "What Goes Wrong in Habermas's Pragmatic Justiciation of (U)." Dialogue: Canadian Philosophical Review/Revue canadienne de philosophie 56.1 (2017): 89-110. Nelson, Eric. "Liberty: One Concept Too Many?" Political Theory 33.1 (2005): 58-78. Nelson, Kai. "Skeptical Remarks on the Scope of Philosophy." Social Theory and Practice 19.2 (1993): 117-160. Niemi, Jari I. "Jürgen Habermas's Theory of Communicative Rationality: The Foundational Distinction Between Communicative and Strategic Action." Social Theory and Practice 31.4 (2005): 513-532. Noonan, Jeff. "Modernization, Rights, and Democratic Society: The Limits of Habermas's Democratic Theory." Res Publica 11.2 (2005): 101-123. Olson, Kevin. "Do Rights Have a Formal Basis? Habermas' Legal Theory and the Normative Foundations of the Law." The Journal of Political Philosophy 11.3 (2003): 273-294. O'Mahony, Patrick. "Habermas and communicative power." Journal of Power 3.1 (2010): 53-73. Papastephanou, Marianna. "Communicative Action and Philosophical Foundations: Comments on the Apel-Habermas Debate." Philosophy and Social Criticism 23.4 (1997): 41-69. Pettys, Todd E. "Popular Constitutionalism and Relaxing the Dead Hand: Can the People be Trusted?" Washington University Law Review 86.2 (2008): 313-361. Rawls, John. A Theory of Justice (Revised Edition). Cambrige, MA: The Belknap Press of Harvard University Press, 1999. —. Political Liberalism. New York, NY: Columbia University Press, 1993. Rehg, William. "Reason and Rhetoric in Habermas." Levy, Jerrold E. and Stephen J. Kunitz. Rhetoric and Hermeneutics in Our Time. New Haven, CT: Yale University Press, 2017. 358-377. Rienstra, Byron and Derek Hook. "Weakening Habermas: the Undoing of Communicative Rationality." Politikon: South African Journal of Political Studies 33.3 (2006): 313-339. Rorty, Richard. Contingency, Irony, and Solidarity. Cambridge, England: Cambridge University Press, 1989. —. Philosophy and the Mirror of Nature. Princeton, NJ: Princeton University Press, 1981. 295 —. Take Care of Freedom and Truth will Take Care of Itself. Stanford, CA: Stanford University Press, 2006. Rorty, Richard. "Universality and Truth." Brandom, Robert. Rorty and His Critics. Malden, MA: Blackwell Publishing, 2000. Russell, Matheson and Andrew Montin. "The Rationality of Political Disagreement: Ranciere's Critique of Habermas." Constellations 22.4 (2015): 543-554. Sager, Lawrence G. Justice in Plainclothes: A Theory of American Constitutional Practice. New Haven, CT: Yale University Press, 2006. —. The People Themselves: Popular Constitutionalism and Judicial Review. New York, NY: Oxford University Press, 2004. Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law. Princeton, NJ: Princeton University Press, 2018. Schecter, Darrow. The Critique of Instrumental Reason from Weber to Habermas. Continuum, 2010. 651. Scheuerman, William E. "Between Radicalism and Resignation: Democratic Theory in Habermas's Between Facts and Norms." Dews, Peter. Habermas: A Critical Reader. Wiley-Blackwell, 1999. Sensat, Julius. "Habermas and Marxism: An Appraisal." Philosophical Review 89.4 (1980): 649- Sitton, John. Habermas and Contemporary Society. New York, NY: Palgrave Macmillan, 2003. Smith, A. Anthony. "Two Theories of Historical Materialism: G.A. Cohen and Jürgen Habermas." Theory and Society 13.4 (1984): 513-540. Sunstein, Cass R. "Neither Hayek nor Habermas." Public Choice 134.1-2 (2008): 87-95. —. One Case at a Time: Judicial Minimalism on the Supreme Court. Cambridge, MA: Harvard University Press, 2001. Tarr, Zoltan. "A Note on Weber and Lukacs." International Journal of Politics, Culture, and Society 3.1 (1989): 131-139. Toulmin, Stephen. Human Understanding, Volume I: The Collective Use and Evolution of Concepts. Princeton, NJ: Princeton University Press, 1977. —. The Uses of Argument. Cambridge, MA: Cambridge University Press, 2003. 296 Tushnet, Mark. Taking the Constitution Away from the Courts. Princeton, NJ: Princeton University Press, 1999. —. Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law. Princeton, NJ: Princeton University Press, 2009. U.S. Constitution, Art./Amend XIV, sec. 1 Waldron, Jeremy. Law and Disagreement. Oxford, England: Clarendon Press, 2004. —. "The Core of the Case Against Judicial Review." The Yale Law Journal 115.6 (2006): 1346- 1406. Weber, Max. The Protestant Ethic and the Spirit of Capitalism. Routledge Classics, 2001. Whitton, Brian J. "Universal Pragmatics and the Formation of Western Civilization: A Critique of Habermas's Theory of Human Moral Evolution." History and Theory 31.3 (1992): 299-313. Wiley, Norbert. The Marx-Weber Debate. Sage Publications, 1987. Zurn, Christoper. Deliberative Democracy and the Institutions of Judicial Review. New York, NY: Cambridge University Press, 2007. 297