Legal Theory Lecture 22 Habermas, Law and Democracy


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Legal Theory Lecture 22 Habermas, Law and Democracy

  1. 1. Legal Theory Lecture 22 Habermas, Law and Democracy <ul><li>3 key issues: </li></ul><ul><li>The legitimation of law under conditions of social pluralism </li></ul><ul><li>The relationship between fundamental rights and democracy </li></ul><ul><li>The constitutionalisation of fundamental rights </li></ul>
  2. 2. <ul><li>Three key ways in which law can operate within a society: </li></ul><ul><li>By sanctions and the fear of sanctions amongst its subjects; </li></ul><ul><li>By habit; </li></ul><ul><li>By the general, free and rational acceptance of its subjects </li></ul><ul><li>(Or some combination of these) </li></ul>
  3. 3. <ul><li>To the extent that one values freedom and prefers a legal system based on the general rational acceptance of its subjects to one imposed by force or operating by habit, one is faced with the challenge of identifying the form which that legal system should take. </li></ul>
  4. 4. <ul><li>What kind of legal system (which laws) will generally command the free and rational acceptance of subjects? </li></ul><ul><li>A system comprised of laws which subjects generally believe there are good reasons for having and obeying. </li></ul><ul><li>A system comprised of laws which subjects generally believe are justified or legitimate . </li></ul>
  5. 5. Socially homogenous societies <ul><li>In a society in which all subjects share the same set of beliefs, values and interests, the enactment and operation of laws whose content reflects those shared beliefs, values and interests will be freely and rationally accepted by those subjects and will be readily justified (legitimated) with reference to those beliefs, values and interests (reasons). </li></ul><ul><li>Laws may be legitimated by their content. </li></ul>
  6. 6. Socially Pluralistic Societies <ul><li>In a society in which only some subjects share a set of beliefs, values and interests, a law which reflects those beliefs, values and interests will be freely and rationally accepted only by those subjects who share them and will be readily justified (legitimated) with reference to those beliefs, values and interests (reasons) only by those subjects. </li></ul><ul><ul><li>For other subjects holding competing beliefs, values and interests, that law will not be freely and rationally accepted but will operate by some other means – for example, by the operation of sanctions and the fear of sanctions. </li></ul></ul><ul><li>Laws may not be legitimated by their content. Something else is required. </li></ul>
  7. 7. <ul><li>In a pluralistic society where consensus about beliefs, values and interests (moral, political, religious) appears not to exist, how can we justify/legitimate a law or legal system? </li></ul><ul><li>How can we effectively argue that one law or legal system is to be generally preferred over any other? </li></ul><ul><li>How can we argue for the legitimacy of a given law or legal system? </li></ul>
  8. 8. <ul><li>Habermas’s project in Between Fact and Norms (BFN) is to articulate a legal theory for a modern society such as ours where traditional sources of legal authority and legitimacy have broken down. </li></ul><ul><li>What grounds the legitimacy of positive laws in a modern pluralistic society </li></ul><ul><li>What is it that can give the (rational) members of such a society good reason to obey the laws they are subject to? </li></ul>
  9. 9. <ul><li>Key question - how can we explain the fact that certain positive laws, the contents of which do not directly serve the values or interests of certain members of society, may nevertheless be accepted by those members as legitimate ? </li></ul><ul><li>Habermas argues that in the modern age the only universally recognised source of legitimacy in relation to law is that the law be the result of a democratic law-making process . </li></ul><ul><li>&quot;The democratic procedure for the production of law evidently forms the only post-metaphysical source of legitimacy&quot;. (BFN p.448) </li></ul>
  10. 10. Habermas’s argument in relation to legitimacy and democracy <ul><li>Habermas starts with some standard liberal premises: </li></ul><ul><ul><li>Most human beings are fundamentally rational . </li></ul></ul><ul><ul><li>Rational beings recognise the value of their own freedom . </li></ul></ul><ul><li>On the classical liberal model (Hobbes, Rawls ) , rational individuals choose to form a social contract (constitution) and create the state in order to preserve their freedom. </li></ul><ul><ul><li>Positive law is legitimate to the extent that it complies with the terms (content) of the social contract (constitution). </li></ul></ul><ul><ul><li>That contract/constitution will reflect the shared fundamental interests of the individuals who formulate it. </li></ul></ul>
  11. 11. <ul><li>Habermas rejects the traditional liberal model of humans as beings whose rationality consists in them being able to think and act rationally in isolation from others (See Preuss article). </li></ul><ul><li>Habermas takes a more social (communitarian) perspective on humans. </li></ul><ul><li>Humans are fundamentally communicatively rational – which is to say they are only able to think and act rationally and freely to the extent that they are able to communicate effectively with others (roots in empirical language/discourse theory). </li></ul><ul><li>Adequate communication with others is a pre-condition of individual rationality and freedom (per communitarianism?). </li></ul><ul><li>The better the quality of one’s communication with others, the more fully one may realise one’s humanity, rationality and freedom ( communicative liberalism ). </li></ul>
  12. 12. <ul><li>Based on rational reflection and empirical research, Habermas elaborates a theory about the conditions under which high quality communication with others can take place. </li></ul><ul><li>These are the conditions of communicative rationality , the conditions under which people are most fully able to communicate with others , are most fully rational and free, and most fully human. </li></ul>
  13. 13. <ul><li>He identifies the conditions of communicative rationality as (roughly) those conditions under which any person, in the course of their communication with others, is: </li></ul><ul><ul><li>treated with equal respect; </li></ul></ul><ul><ul><li>enabled to express themselves freely, </li></ul></ul><ul><ul><li>enabled to listen to others and to be listened to, </li></ul></ul><ul><ul><li>enabled to rationally argue for and discuss their beliefs, values and interests </li></ul></ul><ul><ul><li>enabled to participate as an equal in any decision-making or action affecting that person. </li></ul></ul>
  14. 14. <ul><li>Positive laws which maintain the conditions of communicative rationality will be considered legitimate by rational subjects because they will be seen as necessary to the maintenance of their own freedom. </li></ul><ul><li>Such laws will be considered constitutional (basic) by rational subjects because they are fundamental to ensuring their own communicative rationality, identity and freedom. </li></ul>
  15. 15. <ul><li>A legitimate constitution will contain provisions which institutionalise the conditions of communicative rationality. </li></ul><ul><li>It will contain provisions which provide that all subjects are: </li></ul><ul><ul><li>treated with equal respect; </li></ul></ul><ul><ul><li>enabled to express themselves freely, </li></ul></ul><ul><ul><li>enabled to listen to others and to be listened to, </li></ul></ul><ul><ul><li>enabled to rationally argue for and discuss their beliefs, values and interests </li></ul></ul><ul><ul><li>enabled to participate as an equal in any decision-making or action affecting that person. </li></ul></ul>
  16. 16. <ul><li>For Habermas, the conditions of communicative rationality in the public sphere are the conditions of democracy. </li></ul><ul><li>Communicative rationality in the public sphere = democracy </li></ul>
  17. 17. Democracy - OED <ul><li>Government by the people; that form of government in which the sovereign power resides in the people as a whole, and is exercised either directly by them (as in the small republics of antiquity) or by officers elected by them. In modern use often more vaguely denoting a social state in which all have equal rights , without hereditary or arbitrary differences of rank or privilege. </li></ul><ul><li>In a democracy, state power is exercised by the people and for the people of the state. </li></ul><ul><li>Democratic legal process involves the creation, interpretation and enforcement of law in a manner which: </li></ul><ul><ul><li>Is accountable to the people; </li></ul></ul><ul><ul><li>Is in the interests of the people; </li></ul></ul><ul><ul><li>Involves the people. </li></ul></ul>
  18. 18. <ul><li>See also Bottomley on good (legitimate) governance in the corporate sphere </li></ul><ul><ul><li>Accountability </li></ul></ul><ul><ul><li>Deliberation </li></ul></ul><ul><ul><li>Contestability </li></ul></ul><ul><li>See also Iris Marion Young, Hutchinson and Monahan, Waldron on the conditions of democracy. </li></ul>
  19. 19. <ul><li>A legitimate constitution in a modern pluralist society will be a democratic constitution – one which establishes the conditions of democratic decision-making and action and which is itself established or reiterated by democratic means. </li></ul><ul><li>&quot;From the standpoint of legal theory, the modern legal order can draw its legitimacy only from the idea of self-determination : citizens should always be able to understand themselves also as authors of the law to which they are subject as addressees&quot;. (BFN p.449) </li></ul>
  20. 20. <ul><li>Further , </li></ul><ul><li>given their recognition of the need for there to be substantive laws regulating the behaviour of the members of the society; and </li></ul><ul><li>given their recognition that their own individual values and interests may not always be taken up by law; </li></ul><ul><li>rational subjects will accept the legitimacy of substantive positive law as long as it is created under conditions of communicative rationality – that is in accordance with a communicatively rational legal constitution. </li></ul>
  21. 21. <ul><li>Therefore, modern rational subjects will accept as legitimate: </li></ul><ul><li>any positive law which contributes to the maintenance of democracy within the society (constitutional and public laws); and </li></ul><ul><li>any positive law which has been enacted in accordance with such democratic laws. </li></ul>
  22. 22. <ul><li>Substantive positive law is legitimised not by virtue of its content but by virtue of the procedure by which it was enacted. </li></ul><ul><li>Within a democratic political-legal process, validity = legitimacy. </li></ul><ul><li>This model of legitimacy is consistent with a society in which there is a plurality of views about values and interests on all issues other than the value of democracy itself. </li></ul>
  23. 23. <ul><li>Subjects who do not recognise the value of democracy and the legitimacy of democratically enacted laws are on Habermas’s theory to some degree irrational and in need of reasoned discussion and argument and, if that fails, in need of sanctioning from the state. </li></ul><ul><li>For the reason that a democratic state and democratically enacted law are necessary for the well-being of its rational subjects, the state is authorised (indeed expected) to exercise coercion to ensure that the law is obeyed by its subjects and the conditions of democracy protected. </li></ul>
  24. 24. <ul><li>The state exercises coercion according to democratically enacted positive laws (rule of law). </li></ul><ul><li>Democracy may need to be defended. </li></ul><ul><ul><li>Query the majoritarian implications of this. </li></ul></ul><ul><li>Note the resonances here with the earlier discussion on the limits of liberal toleration of illiberal practices in minority groups. </li></ul><ul><ul><li>Does this mean that all law is ultimately based on force? </li></ul></ul>
  25. 25. <ul><li>For Habermas the notion of legitimate law is informed by notions of </li></ul><ul><ul><li>normativity - the independent normative value of democracy; and </li></ul></ul><ul><ul><li>positivity - validity according to a rule of recognition (identifiability) and enforceability. </li></ul></ul>
  26. 26. On positivity <ul><li>If we are to act freely, we need to know what the rules are which regulate our action. This requires both a rule of recognition and the publicity of laws. The law must be identifiable . </li></ul><ul><li>Additionally, if law is to protect our freedom it has to be enforced on all who might break it (enforceability). </li></ul>
  27. 27. <ul><li>Positivity (understood in terms of identifiability and enforceability) is a necessary (but not sufficient) condition of legitimacy. </li></ul><ul><li>Mere positivity (identifiability and enforceability) is not enough to ensure that law is freedom-guaranteeing. (See Hart and Waldron on the dangers of positive law). </li></ul><ul><li>An additional element is also needed to ensure the legitimacy of a law – and that is its enactment by democratic procedure ie its validity according to a democratic constitution. (Hints of Fuller’s fidelity here) </li></ul><ul><li>Not merely liberalism but democratic liberalism. </li></ul>
  28. 28. <ul><li>&quot;Modern law is formed by a system of norms that are coercive, positive and, so it is claimed, freedom-guaranteeing. </li></ul><ul><li>The formal properties of coercability and positivity are associated with the claim to legitimacy: the fact that norms backed by the threat of state sanction stem from the changeable decisions of a political lawgiver is linked with the expectation that these norms guarantee the autonomy of all legal persons equally. </li></ul><ul><li>This expectation of legitimacy is intertwined with the facticity of making and enforcing law&quot;. (BFN p.447) </li></ul>
  29. 29. Habermas: between legal positivism and natural law theory <ul><li>Habermas is not so much concerned with the descriptive question &quot;what is law?&quot; but with the more normatively charged and morally/politically important question &quot;what is legitimate law?&quot;. </li></ul><ul><li>He seeks to go beyond the limited positivist concerns about law and embrace the broader and morally and politically richer concerns of contemporary anti-positivists and natural law theorists. </li></ul><ul><li>In embarking on his task, Habermas seeks to: </li></ul><ul><ul><li>avoid the defects of both traditional legal positivism and traditional natural law theory </li></ul></ul><ul><ul><li>adopt the strengths of both. </li></ul></ul>
  30. 30. Legal Positivism <ul><li>Key Defect </li></ul><ul><li>Legal positivism provides no basis for a legal critique of (valid) positive law. </li></ul><ul><li>Key Strength </li></ul><ul><li>Legal positivism seeks to provide an objective, empirically well-justified theory of law. </li></ul>
  31. 31. Natural Law Theory <ul><li>Key Defect </li></ul><ul><li>The NL source of the legitimacy of positive law is problematic in two ways: </li></ul><ul><ul><li>epistemically - the standards of legitimacy are not objectively knowable and are the subject of much disagreement. Difficult to justify the existence and content of these standards. </li></ul></ul><ul><ul><li>politically - as a result of their not being objectively knowable, access to and articulation of the standards of legitimacy generally resides with an elite whose values and interests may not coincide with those of other legal subjects. </li></ul></ul><ul><li>Key Strength </li></ul><ul><li>Natural law theories provide a legal basis for the critique of the positive law. </li></ul>
  32. 32. Habermas’s legal theory <ul><li>A third way between/beyond/including facticity and normativity. </li></ul><ul><li>Habermas's concept of law is &quot;between&quot; fact (valid enforceable commands) and norm (extra-legal standards). </li></ul><ul><li>Habermas's methodology is &quot;between&quot; positivism and natural law theory. </li></ul>
  33. 33. <ul><li>Source of legitimacy of law for Habermas </li></ul><ul><li>The legitimacy of the positive law for Habermas is a function of: </li></ul><ul><ul><li>the fact that it was created in accordance with legally-constituted democratic procedures (validity and normativity); and </li></ul></ul><ul><ul><li>the fact that it can/will be enforced to ensure the outcomes of democratic decision-making within the society will be maintained (enforceability and normativity). </li></ul></ul>
  34. 34. Strengths of Habermas's theory <ul><li>It avoids the defects and appropriates the strengths of both legal positivism and natural law theory. </li></ul><ul><li>Like legal positivism, it provides an account of law that: </li></ul><ul><ul><li>is based on objective, social scientific reasoning and method; </li></ul></ul><ul><ul><li>acknowledges the role that state coercion plays in the constitution and maintenance of law (though to a lesser extent than classical positivists); </li></ul></ul><ul><li>Like many natural law theories, it provides a basis for the identification of legitimate law and, thus, for the legal critique of existing or proposed positive law. </li></ul><ul><li>Unlike classical natural law theory though, the basis for such critique lies in the objectively knowable and democratically defensible conditions of communicative rationality . </li></ul><ul><li>It provides an account of both law and the critique of law based on objective and justifiable reasoning and method. </li></ul>
  35. 35. Critique of Habermas <ul><li>As a liberal theorist, Habermas is vulnerable to many of the critiques of liberalism we have encountered. </li></ul><ul><ul><li>Note Young’s and Moller-Okin's critique of the liberal emphasis on the public sphere. </li></ul></ul><ul><li>Is Habermas’s notion of human nature, reason and the public sphere too verbal, intellectual, argumentative etc. – too male, too middle-class, too ethnocentric? See the accounts of these advocated by CLS, feminism, critical race theory etc. </li></ul><ul><li>Is his theory too historically and culturally specific (Western modernity)? Does it fail to apply to other less pluralistic cultures where there is a moral or religious consensus. </li></ul>
  36. 36. <ul><li>Why see communication as fundamental to humans? Why not some irrational drive to survival, self-interest etc.? Are his empirical claims true or even provable? </li></ul><ul><li>Why assume that most people are rational in the sense he uses the term? </li></ul><ul><li>Is he able to resolve the tension between majoritarianism and minority rights? What happens if rational agreement can't be reached? Will the majority's will ultimately prevail? </li></ul>
  37. 37. Habermas on the relationship between democracy and rights <ul><li>Question is &quot;what [legal] rights must citizens mutually grant each other if they decide to constitute themselves as a voluntary association of legal consociates and to legitimately regulate their living together by means of positive law?&quot; (BFN p.453) </li></ul><ul><li>Habermas conceives of the constitutional task as that of setting up a system of legal rights, institutions and principles by which the public and private autonomy (freedom/self-determination) of citizens can be cultivated and protected. </li></ul>
  38. 38. <ul><li>Autonomy (freedom/self-determination under law) comprises two key dimensions: </li></ul><ul><li>Public autonomy - Freedom to participate equally in the creation and maintenance of the legal system and pursue other collective goals (economic, social, technological etc). </li></ul><ul><ul><li>Facilitates the setting and realising of public goals (including the maintenance of a democratic legal system) through the operation of public rights (communicative liberties). </li></ul></ul><ul><li>Private autonomy - Freedom to pursue one's own way of life and goals within the society. </li></ul><ul><ul><li>Facilitates individual freedom to choose one's personal or shared conception of the good life through the operation of private rights (individual liberties). </li></ul></ul>
  39. 39. <ul><li>Therefore, a legal system needs to provide two kinds of rights to its citizens if they are to be properly free: </li></ul><ul><li>Public rights (communicative liberties) to participate as an equal in the creation and maintenance of the legal system which governs citizens and in the pursuit of other collective goals. </li></ul><ul><li>Private rights (individual liberties) to pursue each person’s own way of life and goals consistent with the rights of others to pursue theirs and with maintenance of a system of public rights. </li></ul>
  40. 40. <ul><li>Private autonomy ensured by individual liberties - classical liberal rights to life, liberty and property with an anonymous rule of law. </li></ul><ul><ul><li>Freedom from unreasonable interference with one’s reasonable pursuit of the good life by State or other persons (legal accountability rights); </li></ul></ul><ul><ul><li>Freedom of conscience, speech, religion, association, travel, etc. </li></ul></ul><ul><ul><li>Property rights </li></ul></ul><ul><ul><li>Fair notice rights </li></ul></ul><ul><ul><li>Rights to access the courts to enforce other private rights </li></ul></ul><ul><ul><li>Due process in legal proceedings affecting one’s private interests </li></ul></ul><ul><ul><li>Sexual/reproductive rights? </li></ul></ul><ul><ul><li>Social/economic rights? </li></ul></ul>
  41. 41. <ul><li>Public autonomy ensured by mechanisms of popular sovereignty and democratic self-legislation. </li></ul><ul><ul><li>Right to participate in public decisions affecting one’s interests as an equal </li></ul></ul><ul><ul><li>Right to vote </li></ul></ul><ul><ul><li>Right to voting equality </li></ul></ul><ul><ul><li>Right to run for and sit in Parliament </li></ul></ul><ul><ul><li>Right to equality of voting power in Parliament </li></ul></ul><ul><ul><li>Right to equally participate in public discussions about issues affecting one’s interests (free speech, association, travel etc.) </li></ul></ul><ul><ul><li>Right to information affecting one’s interests (freedom of political communication) </li></ul></ul><ul><ul><li>Fair notice rights </li></ul></ul><ul><ul><li>Rights to access the courts to enforce other public rights </li></ul></ul><ul><ul><li>Due process in legal proceedings affecting one’s public interests </li></ul></ul>
  42. 42. <ul><li>Are public rights more fundamental to self-determination than private rights or vice versa? </li></ul><ul><li>The individual liberties which ensure private autonomy are ensured only by being the product of the exercise of public autonomy. </li></ul><ul><li>Why? Because if given a free choice, rational people will ensure that private autonomy is provided for by their legal system. </li></ul><ul><li>Only the people themselves can ensure that their private rights are provided for at law. </li></ul><ul><li>Therefore, private autonomy relies upon public autonomy . </li></ul><ul><li>Public rights necessary for self-determination as fundamental rights? </li></ul><ul><ul><li>Argument for public rights to be constitutionally entrenched? </li></ul></ul>
  43. 43. <ul><li>Further , though, public autonomy may only be properly exercised by privately autonomous individuals. </li></ul><ul><li>Why? Because only people who are privately autonomous (who have had the benefit of living privately autonomous lives) are capable of properly exercising the rights and responsibilities that go with public autonomy. </li></ul><ul><li>Only free and rational (privately autonomous) people are capable of governing themselves in the public sphere. </li></ul><ul><li>Therefore, public autonomy relies upon private autonomy . </li></ul><ul><li>Private rights necessary for self-determination as fundamental rights? </li></ul><ul><ul><li>Argument for private rights to be constitutionally entrenched? </li></ul></ul>
  44. 44. <ul><li>&quot;The individual liberties of the subjects of private law and the public autonomy of enfranchised citizens make each other possible &quot;. (BFN p.454) </li></ul><ul><li>Both private and public rights are necessary to ensure freedom/self-determination under law. </li></ul><ul><ul><li>All those private and public rights necessary for the maintenance of self-determination as fundamental rights? </li></ul></ul><ul><ul><li>Argument for all those private and public rights necessary for the maintenance of self-determination to be constitutionally entrenched? </li></ul></ul><ul><li>Habermas goes beyond mere liberalism to a richer democratic liberalism. </li></ul>
  45. 45. <ul><li>“… the desired internal relation between human rights and popular sovereignty consists in the fact that the requirement of legally institutionalising self-legislation can be fulfilled only with the help of a code ( constitution ) that simultaneously implies the guarantee of actionable individual liberties . By the same token, the equal distribution of these liberties can in turn be satisfied only by a democratic procedure that grounds the supposition that the outcomes of political opinion and will formation are reasonable. This shows how private and public autonomy reciprocally presuppose one another in such a way that neither one may claim primacy over the other . “ BFN p.455 </li></ul>
  46. 46. <ul><li>Key question - should all those fundamental private and public rights necessary for the maintenance of self-determination be constitutionally entrenched ? </li></ul><ul><li>Should the very conditions of freedom and democracy at law be put beyond the free and democratic control of any given generation of citizens? </li></ul><ul><li>No - Fundamental rights should be enforceable only as positive laws and should not be given priority as pre-given moral facts over the legislative power of the sovereign people. Public autonomy would be infringed if fundamental rights were given such primacy. </li></ul><ul><li>Yes - The people regardless of their public autonomy should not be able to enact any laws which violate the fundamental human rights necessary for the realisation of public and private autonomy. Fundamental private and public rights are necessary conditions of there being popular sovereignty and legitimate positive law in the first place. </li></ul>