Cronin Ciaran - Inclusion of the Other Studies in Political Theory

This translation Massachusetts Institute of Technology 1998

First published in Germany as Die Einbeziehung des anderen. Studien zur politischen Theorie, 1996 by Suhrkamp Verlag, Frankfurt am Main, Germany.

First published in Great Britain in 1999 by Polity Press in association with Blackwell Publishers Ltd.

Reprinted 2005

Polity Press
65 Bridge Street
Cambridge CB2 1UR. UK

Polity Press
350 Main Street
Maldon, MA 02148, USA

All rights reserved. Except for the quotation of short passages for the purposes of criticism and review, no part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher.

Except in the United States of America, this book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, hired out, or otherwise circulated without the publishers prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser.

ISBN 0-7456-3046-4

A catalogue record for this book is available from the British Library.

The book was set in New Baskerville by Wellington Graphics

For further information on Polity, visit our website: www.polity.co.uk

Contents

Editors Introduction

The wide-ranging essays collected in this volume provide an overview of Jrgen Habermass work in political philosophy over the past decade together with a number of important elaborations of its basic themes in connection with current political debates. One of the distinctive features of this work has been its approach to the problem of political legitimacy through a sustained reflection on the dual legitimating and regulating function of modern legal systems. Eschewing the revolutionary utopianism of traditional socialism while remaining true to its emancipatory aspirations, Habermas has focused on the claim to legitimacy implicitly raised by the legal and political institutions of the modern constitutional state and has asked how this claim can be grounded in an appropriate theory of democracy. Extending his discourse theory of normative validity to the legal-political domain, he defends a proceduralist conception of deliberative democracy in which the burden of legitimating state power is borne by informal and legally institutionalized processes of political deliberation. Its guiding intuition is the radical democratic idea that the legitimacy of political authority can only be secured through broad popular participation in political deliberation and decision-making or, more succinctly, that there is an internal relation between the rule of law and popular sovereignty. In the present volume Habermas brings this discursive and proceduralist analysis of political legitimacy to bear on such urgent contemporary issues as the enduring legacy of the welfare state, the future of the nation state, and the prospects for a global politics of human rights.

This is, of course, the central question of modern political philosophy in both the liberal and civic republican traditions. Habermass theory of political legitimation is deeply indebted to both, but he takes his immediate orientation from a discursive analysis of questions of normative validity. He first developed this approach in his discourse theory of morality and now extends it to the legal domain in a way that is sensitive to the formal features of legality that set it apart from morality. This general approach to normative questions is based on the cognitivist premise that certain kinds of action norms admit of reasoned justification in practical discourse and that their validity can as a consequence be elucidated by an analysis of the forms of argumentation through which they are justified.

However, this normative approach to law and politics is in need of supplementation by an analysis of the functional contribution that positive legal orders make to the stabilization and reproduction of modern societies. Modern legal systems developed in response to the problems of social order created by accelerating processes of modernization; the formal features of legality are dictated by this regulative function of modern law. Moreover, Habermas claims that these two approaches to law, the normative and the functional, are inseparable. The problem of the basic principles of a constitutional democracy cannot be addressed in abstraction from the positive and coercive character of the legal medium in which they are to be realized; and these formal features of modern law are conditioned by the problems of social integration and reproduction to which modern legal orders respond. It is crucial for the analyses of human rights and popular sovereignty that form the core of Habermass theory of democracy that the parameters of the problem they are intended to solve are laid down by history. If, following Habermas, we approach the problem of legitimacy by asking what rights free and equal citizens have to confer on one another when they deliberate on how they can legitimately regulate their common life by means of law, then the medium or language in which they must answer this question is not something they are free to choose but is imposed by the constraints of the task they are trying to solve. There are no functional alternatives to positive law as a basis for integrating societies of the modern type.

It is not our aim to offer an exhaustive analysis of this wide-ranging theoretical project here. Instead, by way of introduction we will outline the relevant features of Habermass discourse theory of normative legitimacy as they bear on his theory of legal rights (section 1), before turning to his proceduralist conception of deliberative democracy (section 2). We will then consider the implications of this project for the problems of the future of the nation state, of a global politics of human rights, and of corresponding supranational political institutions (section 3). This will provide the background for some concluding remarks on Habermass contributions to the debates currently raging on multiculturalism and the rights of cultural minorities (section 4).

Habermas starts from the assumption that in modern, pluralistic societies, social norms can derive their validity only from the reason and will of those whose decisions and interactions are supposed to be bound by them. He shares this starting point with John Rawls, who has emphasized that disagreement over conceptions of the good and questions of ultimate value is likely to be an enduring feature of pluralistic societies and could only be overcome through the repressive imposition of one belief system. Yet their responses to the challenge posed by pluralism differ in important ways. Rawls argues that citizens committed to different and incompatible comprehensive doctrines can nevertheless reach an overlapping

The discourse principle forms the cornerstone of a theory of both moral and legal validity which is intended to rebut noncognitivist skepticism concerning the rational basis of moral and legal norms.

This discursive analysis of normative questions allows for a sharp differentiation between moral and legal validity. The principle of discourse expresses a general idea of impartiality that finds different, though complementary, expressions in moral and legal norms. Habermass differentiation between law and morality challenges the traditional assumption that morality represents a higher domain of value in which basic legal and political principles must be grounded. With the emergence of modern societies organized around a state and a positive legal order, the understanding of the basis of political legitimacy underwent a profound transformation: modern natural law or social contract theory broke with traditional natural law in arguing that political authority flows from the will of those who are subject to it rather than from a divinely ordained moral order. Nevertheless, the assumed priority of morality over law continued to play a central, if not always critically examined, role in both the liberal and communitarian traditions of modern political thought. Whereas classical liberalism in the Lockean tradition accords primary importance to prepolitically grounded rights of individual liberty, communitarian thinkers appeal to values rooted in inherited national, religious, or ethnic identities as the inescapable background against which all questions of political justice must be answered. Against both traditions, Habermas argues that law and morality stand in a complementary relation. The basic human rights enshrined in modern legal orders are essentially