#19665 - 4.C.Iii. Critical Theories Democracy Democracy Overview - Jurisprudence

DEMOCRACY OVERVIEW

DELIBERATIVE DEMOCRACY

Habermas, “Three Normative Models of Democracy”

• Two different views of DEM:

  • Liberal

  • Republican

• Republican has an ADV – preserves idea of DEM as institutionalizing public use of reason by AUT citizens

  • They hold deliberation (and public communication) in high regard; BUT they see it in communitarian way = i) ethically constricts POL discourse, and ii) assumes ethical consensus

    • For communitarians, DEM and ethical community are close = individual gets clearer sense of who they are with people who are similar to them – use this as launching pad for reflection

      • BUT this doesn’t sit well with law:

        • Making norms is a question of justice = universal, moral matter

        • Compromises are key in POL process

• Point is – ethical discourse is flawed = doesn’t give DEM genesis of law

• Better alternative = PROCEDURALIST view

  • Discourse theory – integrates both REP and LIB views

    • Legitimation = communicative presuppositions of will-formation RATIONALIZE

      • Rationalization – stronger than LEGIT, weaker than CONST of POL power

    • POP SOV = SOC is decentred; POP SOV is intersubjective

Habermas, “On the Internal Relation between ROL and DEM”

• Deep, internal relation between ROL and DEM

• Modern conception of law = law is positive (changeable by decisions of legislators) + freedom-giving

  • BUT how do can you have LEGIT if laws can always be changed?

    • Classical answer = HIGHER law (positive law is subordinate to eternal, moral law)

      • BUT this POV has collapsed

• Law and morality = different but also complementary

• Legal REGs are too specific to only be LEGIT by morality

  • Positive nature forces law to split up

    • Distinction between authors and addresses – individual liberties and public AUT

      • BUT both of these make the other possible

      • Put otherwise – POP SOV (public) and ROL (rights guaranteeing private)

• Law is LEGIT as instrument of PROTECTING both spheres

  • REP gives priority to POP SOV; LIB to ROL

• REG can only be LEGIT if all affected by it consent to RAT discourse

  • Depends therefore on CONDITIONS of institutionalizing communication – HR (private) is critical for providing conditions of INST = HR makes SOV possible

    • For INST to occur, you need INST rights > for that, you need legal code

      • For legal code to work, you need people to bear rights = no law without private AUT

  • YET, to consensually regulate private AUT, you need public AUT

• They are CO-ORIGINAL – the error of both LIB and REP is that they prioritize on or the other

  • That’s why we need PROCEDURALIST POV

Thomassen, “Habermas: A Guide for the Perplexed”

• [Overlap with the above]

• Discourse ethics – shows validity of moral norms

  • BUT morality alone isn’t enough in modern SOC = we need law

    • YET, it’s also LEGIT by RAT discourse (like morality)

      • Discourse ethics – UNIVERSALIZABILITY of norms

        • Applied in legal context = DEM principle – only STATs are LEGIT that meet assent of all in discursive process

          • Thus – source of LEGIT law = discourse and DEM principles

• Upshot = discourse theory of law and DEM (law is irrelevant here)

  • This is better than REP or LIB version of DEM – they’re too caught up in PHI of subject = says that RAT/validity of laws is decided via subjects’ interests/identities

    • DD is INTERSUBJECTIVE

Benhabib

• LEGIT-RAT PARADOX (will of all vs general will = Rousseau’s formulation)

  • If will is source of LEGIT, it can be IRRAT, but

  • If will must conform to reason (be RAT), it can be ILLEG (i.e., contra will of majority)

• SOLUTION = DD

  • What’s considered in general will (LEGIT), must result from process of DELIB conducted in RAT manner (fulfilling several criteria)

    • DMEP = valid norms are only those agreed by all those affected by their consequences, so long as AGR i) EQ and symmetry, ii) right to question, iii) right to ARG on rules of discourse

      • Makes sense, but it’s ABSTRACT – you need a DEM theory to flesh it out

    • Procedures of DELIB create LEGIT and practical RAT

      • It’s PROCEDURALIST in nature – focuses on INST procedures for making decisions

• Three counterarguments:

  • Liberal – DD undermines personal liberties + destabilizes ROL

    • WRONG - conditions of discourses (basic rights), are basic rules of game which can be contested within the game, BUT only INSOFAR as one abides by them FIRST

  • Feminist – distinction between private and public = abstracts people from their circumstances

    • WRONG – Fraser’s model of numerous, dispersed public spheres

  • Institutionalist – it’s anti-INST in nature and dangerous

    • WRONG – several attempts at NOR theory of DD (e.g., Dryzek) + DD incorporates practical RAT in several ways + reflects implicit logic of DEM principles (e.g., PAR opposition)

RADICAL DEMOCRACY

Attack on deliberative democracy and Habermas

Mouffe

• Deliberative democracy model incomplete- focus on reason + rational argumentation rather than looking at the political

• Attacks deliberative dem on the following grounds

1. Wittgenstein – idea of rational dialogue is flawed

2. Lacan – ideal speech situation...