Alternative Law Journal
A response to an article published in this journal in April 2000.
Last year a stimulating article on deliberative democracy was published in this Journal. The article by Tatum Hands canvassed issues and questions concerning the possibility of a truly deliberative democracy under the seemingly unaccommodating conditions of contemporary, western, neo-liberal societies. Hands approached the matter by way of critically appropriating the work of a number of contemporary democratic theorists, especially that of Jürgen Habermas, one of the world’s leading philosophers and social theorists. In this piece, I would like to develop the points raised by Hands by exploring, in a bit more detail, Habermas’s work on democracy and, in particular, its relation to discourse on the one side, and law on the other. In doing so, I would like to buttress the answer that Hands gives to the important question she herself poses; namely, ‘can deliberative theory work in practice?’.
Her own conclusion is that, while Habermas’s normative concept of democratic deliberation is theoretically interesting and important, she queries whether it can work under contemporary, non-discourse friendly conditions. In other words, Hands evinces substantial doubts whether Habermas’s theory of democracy, despite its virtues (well elaborated by the author herself) can, in practical terms, straddle the gap between normative ideal and factual reality. For measured against the manifestly non-egalitarian, instrumental and nakedly power-oriented character of even the best contemporary democratic regimes, what relevance, let alone impact, can a theory have, that is based on the notions of free and open political decision making, in which the interests of all the relevant parties are equally taken into account. The answer for most political theorists — except the apparently utopian ones — is very little. Such a theory, though interesting and provocative, simply cannot be institutionalised under present conditions.
In response, I will argue the following. First, it is wrong to conceive of Habermas’s theory of deliberative democracy as utopian. Second, the whole theory is constructed so as to answer the very practical question ‘how can deliberative democracy be institutionalised?’ where ‘institutionalised’ means fixed in place in such a manner that it can and must have a radical reforming effect on current practices. And third, as a result of the previous two arguments, we can answer the question posed by Hands’ article in the affirmative. This is the answer that many supporters of deliberative democracy (Hands included) have sought in Habermas, but have failed to find. In indicating how this affirmative answer can be found, and, in the broadest terms indicating what it looks like, my aim is to buttress attempts by Hands and others to develop and refine models of discursive democracy from inside, rather than outside, a Habermasian framework.
As a preliminary matter, it is necessary to consider what the idea of deliberative democracy entails. As the name suggests, it is a form of democratic governance in which decisions affecting citizens are arrived at by those citizens on the basis of rational deliberation on the nature of the problem (‘discursive collective opinion formation’) and the way the problem should be handled (‘discursive collective will formation’). This form of governance is democratic because democratic political decisions — which in modern states are, for the most part, expressed in the language of law — must be an expression of the opinions and will of the people who are subject to, or the addressees of, these decisions. It is democratic because it conceives the people as being the authors of the laws to which they are subject. It regards the people as being sovereign. It is deliberative in that it presupposes that the people can only be authors of the law that bind them if they can all freely agree among themselves about the restrictions and reinforcing sanctions that each reciprocally wishes to impose on others. Alternatively, if the agreement of all those affected is too strong a criterion, then at least, all must be able to participate, freely and equally, in such decisions. In either case, deliberation involves the idea of a rational discourse between free and equal citizens concerning the laws by which they wish to govern themselves. In Habermas’s terminology, it involves the idea of discursive collective opinion and will formation.
As already mentioned, such a model seems utopian when measured against even ‘best practice’ in contemporary liberal, social-democratic and neo-liberal democracies. My response to this perception is that it turns on a typical error, which critics of Habermas — even those as sympathetic as Hands — make in relation to conceiving the connection between norm and fact (ideal and empirical reality). They fail to see the sense in which Habermas’s reconstructive approach is immanent. By ‘immanent’, I mean that concepts such as free and equal participation and discursive deliberation and decision making are not merely the philosophical constructions of a detached idealist. Rather they refer to real and efficacious presuppositions and assumptions of actual persons engaged in everyday social and political practices. To be sure, these presuppositions lie, as it were, below the empirical surface structure of the social world. Being presuppositions they are ideas, and thus, literally, ideals. But being presuppositions of empirical practices, in which real social actors engage, these ideals are necessarily woven into the social fabric produced by these practices. In this way, empirical reality, including the compromises, set-offs and number crunching of democratic politics, is laden with the immanent critical norms of the participants in these practices (which, in the case of democracy, includes all of us).
Of course, one might ask how do we know all this? Especially, how do we know that deliberative democracy is the immanent norm (or deep structure) of modern democracy? The answers are to be found in Habermas’s discourse–theoretical concept of society as set out in his Theory of Communicative Action. In this seminal work, Habermas tries to prove, among other things, that linguistic communication — or more particularly, the primordial relations of mutual recognition that underpin language — is the basic unit of the production and reproduction of social life. In so far as communication depends on a number of strong normative presuppositions in order to perform its function — namely, to ‘transfer’ meanings inter partes — then these presuppositions find their way into all human and social institutions that are constituted by, and dependent on, linguistic communication. That is to say, where language goes — in particular a specific form of linguistic communication called ‘communicative action’ — so do the norms that are embedded in it. Thus if linguistic communication constitutes social institutions, then the demanding norms that underpin it find their way into the fabric of these institutions as well. Since, as we will see, democracy is dependent on forms of political communication and discourse, then it too must be dependent on, and infiltrated by, the strong normative presuppositions of language use. Such norms — which, in the context of political communication, pan out into the abovementioned norms of deliberative democracy — must be embedded within it. That is to say, the ideals of discursive democracy must be immanent in even the most instrumental and power-driven democracies.
Conceiving the internal relation between norm and reality in terms of deep versus surface structures, means that if the immanent norms of democratic politics do not correlate with day-to-day politics, one need not immediately blame the theory. For it is possible that the differences between facts and norms might be due to distortions and inversions in the facts themselves. For many matters, not only the above mentioned norms, find their way into — and, in part, constitute — the facts. Various forms of non and counter-normative influence such as money, political and administrative power (in the Machiavellian sense) also find their way into social actions and practices and their products. Democratic politics, far from being an exception to this, is the paradigm case of an institution, whose normative content — discursive collective opinion and will formation — is so heavily overlaid by functional exigencies that this content so invisible as to appear to be utopian. Yet, far from being not there, these ideals are merely repressed or kept latent. As such, they are often manifested negatively; that is, in the ever-growing chorus of criticism voiced publicly and privately, from all directions, against the failings of democracy. Witness, for example, the current discontent with, and dissent over, the perceived symbiotic relationship between neo-liberal democracies and global capitalism.
From where do these and other internal criticisms of neo-liberal democracy draw their force, if not from the norms that lie immanent, but not dormant, under the surface of the actual practices of such democracies themselves? In their capacity as critical thorns stuck in the flesh of social reality, such norms can only be ignored at the cost of terrible festering. For Habermas, the only way to stop such festering and ensuing infection is to press these democratic thorns so far and wide into the flesh of social reality, that they are able to compete with, and in a very specific sense, govern, the many counter-discursive tendencies that have hitherto had the better of them. The mechanism for achieving this is, in Habermas’s view, the law. Not any old law, to be sure, but a discourse concept of law which is conjoined, at its basic conceptual and institutional levels, with deliberative democracy.
From the normative perspective, the central role of law in contemporary, western functionally differentiated societies is to guarantee that the normative presuppositions of communication — as manifested in all linguistically permeated social domains — are successfully able to compete with the functional imperatives of social and politico– administrative power (i.e. money and the state). It is, in other words, to translate immanent norms into empirical reality: which, in the case of democracy, means to make sure that the ideals of deliberative democracy find their way into the actual practice of real democracies. In short, in the context of modern politics, the role of law is to institutionalise deliberative democracy.
This, of course, is not law’s only role in modern societies. From the functional perspective, law has the task of maintaining social stability: a function that is increasingly being thrust on it by virtue of the weakening of other social institutions that once fulfilled this role (i.e. custom, tradition, religion and peremptory moral codes).
Interestingly, by virtue of its intrinsic structure, modern law is uniquely equipped to perform both its functional and normative tasks at one and the same time. It is structurally equipped to stabilise behavioural expectations by virtue of the fact that it, unlike, say, pure morality, can recur to state-sanctioned coercion in cases of threatened or actual breach. While it is structurally suited to institutionalising discursive processes by virtue of the fact that such law itself must be rationally acceptable. Which is to say that it must be legitimate. What makes modern law unique is that both of its dimensions — stabilising expectations (force) and legitimacy (freedom) — are conjoined in the very way it is produced: that is, in its democratic genesis. For under modern conditions, the only restrictions (and reinforcing sanctions) that those subject to coercive law will agree to — if they are to take themselves to be free — are those restrictions that they, in the absence of any form of coercion, agree amongst themselves to impose equally on each other. In other words, the only way that law can fulfill its functional and normative tasks is if it is democratically produced: where ‘democratically produced’ means made in a discursive process in which all relevant people can freely and equally participate as authors in the laws they wish to impose on themselves as legal subjects. In this way, legitimate law and discursive democracy are internally related. They mutually presuppose one another, in that for one to exist so must the other.
If one seeks to institutionalise discursive democracy, however, the connection between democratically constituted and justified law, on the one hand, and discourse, on the other, must be further explored. The connection is not hard to make, given Habermas’s characterisation of legitimate lawmaking in terms of processes of free and equal discourse concerning the conditions by which people seek to live their lives together. The connection to discourse can be depicted analytically as follows. A legitimate law is a rationally, or discursively, justified law. Since justification — according to the basic principles of Habermas’s theory of communicative action — takes place in and through discourse (or argumentation) then the legitimacy of law depends on (certain) forms of rational discourse. Hence, the discourse–theoretical turn. As Habermas puts it, ‘if discourses … are the site where a rational [political] will can take shape, then the legitimacy of law ultimately depends on a communicative arrangement’.  This arrangement ensures two things: first, that the forms of communication that enable all relevant questions, themes and contributions that underlie discursive lawmaking can be freely and equally expressed by all participants in this process. And second, in order to ensure that all relevant forms of communication are freely and equally expressed and processed these forms themselves must be guaranteed in someway. Now, of course, discourses cannot themselves guarantee that they take place, nor that they take place in a truly discursive fashion. They are merely internally constituted; they rely purely on the rationality of the parties for their binding force. For this reason certain discourses must be externally constituted so as to ensure that the communicative conditions which make discourses discursive are, in fact, met. In the context of discursive lawmaking, it falls to law itself to ensure that these communicative conditions are satisfied. Since the forms of discourse that need to be guaranteed are the forms of communication that underwrite the legitimacy (or discursiveness) of law, then it falls to law to guarantee that its own presuppositions of rationality are met. That is to say, law must guarantee — or as Habermas puts it institutionalise — the conditions for its own production.
And, how can law do this? Habermas’s answer is that law must be constituted according to, and governed by, the system of rights and the principles of the rule of law. Taken together, the system of rights and the principles of the rule of law specify how the general conditions for the legitimacy of law — the free and equal participation by all citizens in a discursive lawmaking process — can be satisfied.
Looking at each individually, the ‘system of rights states precisely the conditions under which the forms of communication necessary for the genesis of legitimate law can be legally institutionalized’. Which is to say, it delineates the rights that citizens will have to accord one another, and the bare structure of the institutions that must protect these rights, for discursive democracy to be put in place. In Habermasian terms, the system of rights sets out how rational political opinion and will formation can be institutionalised, namely, through rights that secure for each person equal participation in a process of discursive lawmaking. As such, the system of rights interlaces the sovereignty of the people with individual liberties in order to guarantee a truly deliberative mode of political opinion formation and decision making. As will be readily apparent, for this to occur the system of rights has to ensure the freedom and equality of citizens capacities to participate in the lawmaking process. It has to ensure, in other words, that citizens’ individual rights protecting their private autonomy and political rights protecting their public autonomy are institutionalised in a balanced manner. To privilege the former over the latter (as is the case in most liberal-oriented democracies) or the latter over the former (as is the case in communitarian-oriented democracies) damages, in a number of ways, the deliberative character of democratic lawmaking.
As for the principles of the rule of law, these then bolster the process of institutionalising deliberative democracy, by further securing the discursiveness of the lawmaking process. They accomplish this in two ways. First, the application of these principles extends the process of legal institutionalization beyond the liberty of private persons and public freedom of citizens to the politico–administrative power already presupposed by the very form of law. Here the rule of law constitutionally disciplines the political power with which legitimate law is, from the very beginning, conjoined. In this way, the politico-administrative state, which is steered through the power code (again in the Machiavellian sense), is tied back to the communicative power generated in the discursive lawmaking process, and kept free of the illegitimate interventions of social power (in the Rupert Murdoch/Kerry Packer sense). And second, the principles of the rule of law interlace governmental power with the already interlaced matrix of popular sovereignty and individual rights ‘in such a way that the principle that “all governmental authority derives from the people” is realised through the communicative presuppositions and procedures of an institutionally differentiated opinion and will formation’. It accomplishes this by legally institutionalising the whole network of discourses and bargaining that underpins any discursive legislative process. This network includes the various forms of communication and modes of argumentation that are involved in the process of democratic lawmaking; forms which feed into this process from inside as well as outside the organised political sphere.
In relation to the second point just mentioned, three further matters require comment. First, the forms of communication and argumentation that must be institutionalised are systematically conceived by Habermas to cover the full range of practical reasoning concerning the ways free and equal people want to live their lives together. These discourses include moral, ethical–political and pragmatic discourses, as well as discursive modes of bargaining and negotiation. Second, the forum for these discourses — that is to say, for the discursive political participation of citizens — is not just the organised political sphere, but extends to include inputs from the array of public spheres in civil society. Without such an extension, the notion of political participation would mean nothing in large and complex nation states. What is more, the notion of international and global governance would simply be inconceivable. And third, the sublimation of the notion of popular sovereignty into a complex set of interconnected and legally institutionalised forms of communication and discourse, necessitates that many of the fundamental institutions of contemporary democracies be reconfigured. To take just one example, the notion of the separation of powers between various governmental institutions must, if it is to perform its role, be modified in the direction of a ‘functional separation of powers grounded in the logic of argumentation’. As Habermas argues, from the discourse–theoretical perspective, ‘the division of powers and responsibilities among authorities that respectively make, apply and implement laws follows from the distribution of the possibilities of access to different sorts of reasons and to the corresponding forms of communication that determine how these reasons are dealt with’. In the final analysis, if democracy is to be deliberative, the separation of powers should be configured in such a way so as to prevent politico–administrative power (power proper) and economic and social power (money) from overwhelming, as it currently has a tendency to do, communicative power (solidarity). Were this to be instituted in Australia, among the immediate legal implications would be the overruling of Dignan (which cedes virtually unchecked authority to the legislature to delegate legislative power to the executive) and the rethinking of Boilermakers (which, though it strongly separates judicial power from both executive and legislative power, does so in a manner that is more concerned with rigidly protecting the judiciary’s own turf, than guaranteeing the truly discursive quality of the judicial process). And, on a more dramatic level, the whole institution of responsible government would have to be radically recast in the direction of a governmental arrangement that, in limiting executive domination of the legislature, actually fosters — rather than inhibits — deliberative practices in parliament.
Summarising the first two sections of this article in reverse order we get the following. In the second section, I argued that deliberative democracy can be realised under contemporary conditions if it is institutionalised in the manner prescribed by Habermas’s system of rights and the principles of the rule of law. These rights and principles are designed to secure the freedom and equality of participation in, as well as the discursive quality of the various forms of communication and discourse necessary for, a broadly conceived discursive lawmaking process. Of course, in an article as brief as this, I have only attempted to offer sufficient detail so as to make plausible this radical discourse–theoretical conception of the institutional framework for deliberative democracy. Thus I have been unable, among other things, to elaborate the particular categories of rights that make up the system of rights, or the particular principles that constitute Habermas’s discourse concept of the rule of law. Nor have I been able to demonstrate how Habermas arrived at these particular categories of legal rights and principles. For these matters, all I can recommend is that one reads Between Facts and Norms in the hope that my present remarks might make it easier to do so.
In the first section, I argued that any institutional framework arrived at via Habermas’s reconstructive method will not be so out of touch with reality as to be virtually utopian. Not that sympathetic critics of Habermas, like Tatum Hands, believe that his theory of deliberative democracy is completely utopian. But they do query its capacity to provide practical guidance in institutionalising political reason in the face of the strong economic and governmental forces aligned against it today. But as I have tried to demonstrate, Habermas’s discourse theory of deliberative democracy is tailored to meet this need. It is a theory of institutionalization; one that sets out the blueprint for how the ideals of democracy can be actualised and fixed in place in the contemporary world. To this end, Habermas, in Between Facts and Norms, concentrates on delineating which institutions are required and how these can be firmly and effectively established. True, in some places in this book, he does go on to specify in some detail the actual shape of these institutions. But for the most part, he leaves this most practical of practical tasks to those who specialise in institutional design and construction, namely, legal specialists. What I hope I have shown, is that Habermas does not leave the more progressive of these legal specialists high and dry when they seek to play their part in reforming democracy.
[*] Robert Shelly teaches law at the University of New South Wales.©2001 Robert ShellyThe author would like to thank Arthur Glass for his comments on a draft of this article.
 Hands, Tatum, ‘Deliberative Democracy’, (2000) 25(2) Alternative Law Journal 65-7.
 Since I am here expositing Habermas’s position, all views expressed in this article, unless otherwise indicated, are intended to represent those of Habermas.
 Whether discursivity presupposes that the people must agree with the decision, as opposed to having the free and equal opportunity to merely participate in its making, is an open question. Habermas’s favours the former, whereas as Bohman (who I agree with in this regard) favours the latter; see Bohman, J., Public Deliberation: Pluralism, Complexity and Democracy, Cambridge, Massachusetts, MIT Press, 1996, pp.182-7.
 See Habermas, J., Theory of Communicative Action , Beacon Press, 1984 (Vol. 1) 1987 (Vol.2).
 The ‘must’ in this sentence, as well as the preceding two sentences, connotes the idea of a special type of ‘necessity’. To say that the ideals of discursive democracy must be immanent within modern democracy means that these ideals or norms are part of the meaning of democracy. To deny these ideals is to deny democracy. Or put differently, to say that a regime is a true democracy, but deny that this democracy entails the notion of discursive deliberation, is to contradict oneself.
 This metaphor comes from Habermas’s Postmetaphysical Thinking, MIT Press, 1992, p.47.
 This festering takes the form of social, cultural and psychological pathologies generated when potential economic and political crises are avoided by being displaced on to the socio-cultural domain (the lifeworld). See Habermas, above, ref 4, vol. 2, chap. VIII.
 The points made in this section are distilled from chapters 1, 3, 4 and 9 of Habermas’s Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, MIT Press, 1996.
 Habermas, above, ref 8, pp.103-4.
 Habermas, above, ref 8, p.110.
 In Between Facts and Norms, Habermas mostly refers to these principles as the ‘principles of the constitutional state’. But it is clear, that both locutions refer to the same thing.
 Habermas, above, ref 8, p.104. On this formulation see also, pp. 110-11, 121, 191, 298, 455-6.
 Habermas, above, ref 8, p. 111.
 The necessity for balanced institutionalisation is due to the fact that private and public autonomy are, what Habermas calls, ‘internally related’ or ‘co-original’, see above, ref 8, pp.104 and 127-8. This internal relation can be grasped in the following way. Public or political autonomy presupposes citizens who have sufficient personal space (viz. liberty) in their private lives so as to be materially and culturally able to participate in public discourse. That is, political autonomy presupposes that the subjects of the laws have the requisite material and communicative room to move in order to be able to participate in the law making process. Thus public autonomy presupposes private autonomy. While simultaneously, private autonomy presupposes political autonomy because to be autonomous in the private sense, you must also be the one who circumscribes the ambit of your own autonomy. For private autonomy can never be absolute. It does not mean that you can do whatever you want to do, but rather your liberty to do what you want to do must be compatible with everyone else’s liberty to do what they want to do. But if you are not the one who determines the conditions under which this compatibility is taken to exist you will not be autonomous, but heteronymous, in the sense of dependent on others. In this way, the private autonomy of addressees of the law is dependent upon these same people collectively circumscribing the ambit of their liberty in their capacity as authors of the law. Hence, the two types of autonomy mutually presuppose one another.
 Habermas, above, ref 8, p.132.
 Habermas, above, ref 8, p.135.
 Habermas, above, ref 8, pp.151-68. Note, that the category of moral discourse includes ‘discourses of justification’ and ‘discourses of application’.
 Habermas, above, ref 8, p.187.
 Habermas, above, ref 8, p.192.
 Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan  HCA 34; (1931) 46 CLR 73.
 R v Kirby; Ex parte Boilermakers’ Society of Australia  HCA 10; (1957) 94 CLR 254 (High Court) and Attorney-General (Cth) v The Queen  HCA 12; (1957) 95 CLR 529 (Privy Council).