Deliberative democracy: A sympathetic comment

Philosophy and Public Affairs

Volumn 29, Issue 4, 2000, Pages 371-418

  Freeman, Samuel ^a  

^a NONE

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EID: 0242440593     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/j.1088-4963.2000.00371.x     Document Type: Article

References (120)

1. See James Fearon, DD2, "Deliberation as Discussion," pp. 44-45.
2. Susan Stokes, DD2, "Pathologies of Deliberation," p. 123;
3. Adam Przeworski, DD2, "Deliberation and Ideological Domination," p. 140.
4. Whereas the anonymity condition says (in effect) that each person's vote is to count the same, the neutrality condition says each proposal is to count the same. This follows from the alleged requirement that in democratic voting no proposal is to be favored; there should be no presumption in favor of the status quo. Any measure requiring more than a bare majority violates the neutrality condition. On this distinction, see Knight and Johnson, DD1, pp. 287-92. The effect of neutrality is to eliminate constitutional constraints (which require special majorities) on voting. Given such momentous implications, the claim that neutrality is a requirement of democracy, relatively common among rational choice theorists, requires far more argument than it is usually given.
5. See, for example, J. A. Schumpeter, Capitalism, Socialism, and Democracy, 3rd ed. (New York: Harper, 1950), chs. 21-23.
6. See, for example, Amartya Sen, "Rational Fools: A Critique of the Behavioral Foundations of Economic Theory," Philosophy & Public Affairs 6 (1977): 317-44
7. Jean Jacques Rousseau, The Social Contract, Bk. IV, ch. 2, par. 8.
8. See Rousseau, The Social Contract, Bk. II, ch. 11, par. 1.
9. "But long debates, dissensions, and tumult betoken the ascendance of private interests and the decline of the state." Rousseau, The Social Contract, Bk IV, ch. 2.
10. Jon Elster reads Rousseau in this way, in DD2, p. 14.
11. "Civic humanism" is Rawls's term. He distinguishes it from "classical republicanism." See John Rawls, Political Liberalism, (New York: Columbia University Press, 1993, paperback ed. 1996), pp. 205-206.
12. Or as Habermas says, "Moral justifications are dependent on argumentation actually being carried out, not for pragmatic reasons of an equalization of power, but for internal reasons, namely that real argument makes moral insight possible." Juergen Habermas, "Discourse Ethics," in Moral Consciousness and Communicative Action (Cambridge: MIT Press, 1990) p. 57.
13. See also p. 68, directed against Rawls. See also Between Facts and Norms, pps. 147, 151.
14. Rawls calls this requirement the "liberal principle of legitimacy." Political Liberalism, p. 137. Cohen relies on a similar principle he calls the "principle of deliberative inclusion." See DD2, p. 203.
15. "We must not ask too much of a philosophical view." Political Liberalism, p. 368.
16. See, for example, Gutmann and Thompson, Democracy and Disagreement, p. 368, n. 34.
17. See John Ely's procedural account of democracy and judicial review in Democracy and Distrust (Cambridge: Harvard University Press, 1984), for a good example.
18. For example, Michelman sets forth several features of deliberativeness - "basic rights of free and equal persons," "commitment to public reason-giving," "motivational ... features such as public-spiritedness and reciprocity," "expectations of sincerity," and so on - which fit with the account above. See DD1, p. 149. Cohen's model of deliberative democracy is discussed later.
19. See Diego Gambetta, DD2, "Claro! An Essay on Discursive Machismo," at p. 22.
20. This kind of argument seems implicit in Philip Pettit's account of "contestatory democracy," which is, he says, deliberative because, unlike interest-group pluralism, it focuses on matters of common concern. "[T]he point is to create a testing environment of selection for the laws." See Philip Pettit, Republicanism (Oxford: Oxford University Press, 1997) pp. 277-79, 189, 192.
21. Both Pettit Republicanism (ibid.)
22. and Rawls in A Theory of Justice (Cambridge: Harvard University Press, 1971; 1999 rev. ed.) rely on this argument. Tom Christiano in DD1 does also, although he is mostly critical of deliberative views.
23. Gutmann and Thompson, Democracy and Disagreement, pp. 41-42.
24. See Robert Goodin, "Democratic Deliberation Within," Philosophy & Public Affairs 29 (2000): 81-109;
25. Rawls, A Theory of Justice (rev. ed.), pp. 205-206;
26. see also Gutmann and Thompson, Democracy and Disagreement, p. 42.
27. See Cass Sunstein, The Partial Constitution (Cambridge: Harvard University Press, 1993), p. 178. In general, see Sunstein, ch. 6, also pp. 133-55. See also Joshua Cohen in DD1, pp. 77-79.
28. Habermas also relies on a "strong normative view," (Michelman, DD1, p. 162) involving considerations of autonomy and political self-rule.
29. Habermas, "Popular Sovereignty as Procedure," in DD1, p. 47;
30. also in Habermas, Between Fact and Norm, pp. 474-75.
31. Habermas, Between Facts and Norms, p. 286. See pp. 322-23, where Habermas is clearer than usual that deliberative politics involves a "thought experiment," undertaken by a "real communication community," where it reflects on what would be agreed to within an "ideal communication community." In this hypothetical community citizens are presumed to have equal powers of reasoning and attentiveness, full knowledge of relevant information, an absence of egocentrism, self-deception and weakness of will, and an equal willingness for mutual understanding. (p. 325).
32. See Habermas, "Discourse Ethics," in Moral Consciousness and Communicative Action, p. 68.
33. See the essays in Habermas, Moral Consciousness and Communicative Action, where this point is frequently emphasized, at pp. 57, 67, 68, 94, 211. Against Rawls's principles of justice, Habermas says: "All contents, no matter how fundamental the action norm involved may be, must be made to depend on real discourses." (p. 94). In a strong statement of the epistemic need for joint deliberation, Habermas says, "Moral justifications are dependent on argumentation actually being carried out, not for pragmatic reasons of an equalization of power, but for internal reasons, namely that real argument makes moral insight possible." (p. 57).
34. Habermas, Between Facts and Norms, p. 450. Michelman discusses this feature of Habermas's view in DD1, pp. 160-61, 165.
35. See B. Grofman and S. Feld, "Rousseau's General Will: A Condorcetian Perspective," American Political Science Review 82, no. 2 (1988), pp. 567-76.
36. See Estlund, DD1, pp. 185-90 and p. 202, n. 21, for a discussion of the jury theorem.
37. See Ronald Dworkin, Sovereign Virtue (Cambridge: Harvard University Press, 2000), p. 207.
38. Jeremy Waldron, The Dignity of Legislation (Cambridge: Cambridge University Press,1999) notes that Condorcet himself was skeptical about average individual competence, especially in large assemblies (p. 32).
39. See, for example, Thomas Christiano, "Freedom, Consensus and Equality in Collective Decision Making," Ethics 101 (October 1990): 151-81,
40. for a criticism of the theorem's application to democracy. See also Christiano's contribution to DD1, "The Significance of Public Deliberation," pp. 271-73 and 277, n. 25.
41. Thanks to Matthew Risse for this suggestion. For a different account of how independence is satisfied, see David Estlund, "Opinion Leaders, Independence, and Condorcet's Jury Theorem," Theory and Decision 36 no. 2 (1994): 131-62.
42. Estlund, DD1, "Beyond Fairness and Deliberation: The Epistemic Dimension of Democratic Authority," pp. 173-204.
43. This is especially so if a further condition of Rousseauian autonomy is civic autonomy. This would mean autonomy is necessarily social: it requires acting on the General Will only as ascertained through democratic deliberation in which one participates as equal citizen. It is only in one's capacity as equal citizen that one gives the law to oneself.
44. Estlund's account resembles in many respects Charles Beitz's account of Complex Proceduralism" in his Political Equality (Princeton: Princeton University Press, 1989), ch. 5.
45. I use the terms "pure procedural conception of democracy" in Rawls's sense of pure procedural justice. It is the view that, so long as all democratic procedures are complied with, then whatever the outcome, it is just. David Estlund distinguishes between pure proceduralism with respect to justice and with respect to legitimacy. He says his own view is purely procedural with respect to legitimacy, but not justice. See Estlund, DD1.
46. "Deliberation and Democratic Legitimacy," in DD1, pp. 67-92.
47. "The notion of a deliberative democracy is rooted in the intuitive ideal of a democratic association in which the justification of the terms and conditions of association proceeds through public argument and reasoning among equal citizens. Citizens in such an order share a commitment to the resolution of problems of collective choice through public reasoning, and regard their basic institutions as legitimate insofar as they establish the framework for free public deliberation." Cohen, DD1, p. 72.
48. Whether Cohen also endorses (2), the epistemic branch of Habermas's "proceduralism," is less clear. Neither Habermas nor Cohen seem to endorse a further condition, that just laws are simply whatever laws would result from what is agreed to in any ideal procedure (assuming all its background conditions are met) realized in the real world. See section IV for further discussion.
49. Cohen says, "The [basic] liberties are not simply among the topics for deliberation; they help to comprise the framework that makes it possible." DD1, p. 84.
50. See here Cohen's paper, "The Economic Basis of Deliberative Democracy," Social Philosophy and Policy 6/2 (1988): 25-50.
51. For Rawls no actual political procedure satisfies pure procedural justice, for there are external standards of justice, provided by his hypothetical "four-stage sequence," by which to assess the decisions of actual deliberations. Habermas seems to endorse a similar sort of view when he says, for example, that the participants in democratic deliberation are to make "reference to an ideal audience or an ideally inclusive community," presumably to ascertain what they would agree to under their hypothetical conditions. Between Facts and Norms, p. 286, see also pp. 322-23, 325, discussed in note 24 above. I assume this provides an epistemic standard of justice for actual democratic deliberation.
52. For example, suppose citizens under ideal deliberative conditions decide that once the political minimum and public goods are satisfied, income and wealth are to be distributed by market exchanges and free gifts, or, alternatively, so as to satisfy average utility requirements. Are there democratic grounds for criticizing these decisions on grounds of justice or legitimacy?
53. See Thomas Christiano, "The Significance of Public Deliberation," DD1, pp. 243-78, for a thoughtful discussion of public deliberation and, at 262ff., a criticism of Cohen. He argues Cohen is liable to incoherence because of his position that ideal deliberative outcomes are "politically justified." If Christiano means that for Cohen deliberative outcomes are not only legitimate but also just, I hesitate to attribute this position to Cohen, although admittedly his earlier paper in DD1 is ambiguous.
54. See William Nelson's discussion and elaboration of J. S. Mill in Justifying Democracy (London: Routledge, 1980).
55. See also Christiano in DD1, and Charles Beitz, Political Equality, pp. 113-16, on how the openness of democratic procedures promotes responsible deliberation more likely to reach substantively just results.
56. "The requirement of providing acceptable reasons for the exercise of political power to those who are governed by it ... expresses the equal membership of all in the sovereign political body responsible for authorizing the exercise of that power." Joshua Cohen, DD1, "Procedure and Substance in Deliberative Democracy," pp. 407-37, at 416. In Democracy and Disagreement, Gutmann and Thompson say, "reciprocity," or seeking and giving "mutually justifiable reasons expresses the core of the process of deliberation," (pp. 52-53), and "prescribes accommodation based on mutual respect." (p. 56).
57. On the relationship between "full publicity" and political autonomy, see Rawls, Political Liberalism, pp. 66-81,
58. and the earlier 1980 Dewey Lectures, "Kantian Constructivism in Moral Theory," Rawls, Collected Papers, ch. 16.
59. For Rawls, the requirement that laws and policies be justifiable in terms of public reasons follows from a "liberal principle of legitimacy," which requires that for political power to be "proper" (Rawls seems to mean both just and legitimate), it must be exercised in accordance with a constitution, the essentials of which all reasonable citizens as free and equal might reasonably be expected to endorse, in the light of principles and ideals acceptable to them as both reasonable and rational. (See Political Liberalism, pp. 137, 217, 393)
60. This implies a "duty of civility" to justify coercive political action in terms of the "political values of public reason." (Political Liberalism, p. 217)
61. For Rawls this duty underwrites a democracy that is not simply constitutional, but also "deliberative." See Political Liberalism, p. lix (1996 paperback ed.): "The ideal of public reason contains a form of public political deliberation .... A belief in the importance of public deliberation is essential for a reasonable constitutional regime."
62. Cohen, DD1, "Procedure and Substance in Deliberative Democracy,"
63. and Cohen, DD2, "Democracy and Liberty," pp. 185-231.
64. See also Habermas, Between Facts and Norms,
65. and Gutmann and Thompson, Democracy and Disagreement;
66. also relevant in DD1, James Bohman, "Deliberative Democracy and Effective Social Freedom: Capabilities, Resources, and Opportunities," pp. 349-82;
67. and James Knight and James Johnson, "What Sort of Equality Does Deliberative Democracy Require?" pp.279-320;
68. and in DD2, Jon Elster, "Deliberation and Constitution Making," pp. 97-122.
69. In DD1, see Gerald Gaus, "Reason, Justification, and Consensus: Why Democracy Can't Have it All," pp. 205-42,
70. and Thomas Christiano, "The Significance of Public Deliberation," pp. 243-78.
71. See also Jeremy Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999), pp. 91-93, and ch. 7.
72. By Rawls, so far as I am aware. See Rawls's 1985 paper, "Justice as Fairness: Political not Metaphysical," in Collected Papers, at p. 395 for Rawls's first explicit reference to public reason: "The aim is free agreement, reconciliation through public reason."
73. See Charles Larmore, Patterns of Moral Complexity, (Cambridge: Cambridge University Press, 1987), p. 53
74. on "neutral dialogue." Bruce Ackerman has an earlier account in Social Justice and the Liberal State (New Haven: Yale University Press, 1980), ch. 11.
75. Juergen Habermas says the role of moral philosophy is to analyze the "communicative presuppositions and the procedure of a discursive process of opinion- and will-formation in which the public use of reason is manifested." "Reconciliation through the Public Use of Reason," in The Inclusion of the Other (Cambridge: MIT Press, 1998), p. 72.
76. See John Finnis, "Abortion, Natural Law, and Public Reason," in Robert E George and Christopher Wolfe, eds., Natural Law and Public Reason (Washington DC: Georgetown University Press, 2000) pp. 75-106, at 77-78.
77. David Gauthier, "Public Reason," Social Philosophy and Policy 12 (Winter 1995): 19-42, p. 25,
78. discussed in Gaus, DD1, pp. 225-26. Gauthier says, "By transferring the locus of deliberation from each individual to an agreed arbitrator, rationality supplants the resort to force in the resolution of conflicts." (p. 26). See also Michael Ridge, "Hobbesian Public Reason," Ethics 108, no. 3 (1998): 533-68.
79. In this regard, earlier claims by deliberative democrats that deliberation seeks consensus (for which they have been widely criticized, see, e.g., Gaus, DD1, or Waldron, Law and Disagreement), probably need to be revised, or at least clarified. (On this Cohen is now clear: "Even an ideal deliberative procedure will not, in general, issue in consensus." DD2, p. 197). The agreement that is to be had among reasonable persons is on the kinds of reasons that are relevant to political argument, and (if Rawls is right) on a liberal conception of justice, or at least a range of liberal conceptions, to construe these reasons and determine their weight. See Cohen, DD2, p. 222, who appears to agree.
80. Cf. Rawls, A Theory of Justice, p. 580 (p. 508 rev. ed.), "Being designed to reconcile by reason, justification proceeds from what all parties to the discussion hold in common."
81. Of course Iranians are not so uniform in their beliefs, but supposing they were.
82. Rawls says (Political Liberalism, p. 213): "Public reason is characteristic of a democratic people: it is the reason of its citizens, of those sharing the status of equal citizenship. The subject of their reason is the good of the public."
83. The right to present grievances and criticize government and majority views, along with freedom to form and join political parties with alternative platforms for realizing the common good, are protected too.
84. The papers mentioned in note 51 object that people have different standards of reasonableness, and that what constitutes reasonable acceptance is a subject of controversy. (Gaus, DD1, p. 223; Christiano, DD1, pp. 268-69). The implication is that pluralism is so deep in a democracy that there is no more likelihood of agreement on a basis for public reasoning than on anything else. Suffice it to say that Rawls recognizes that because of their different philosophical views people will have different definitions and criteria of reasonableness. He still believes, and argues, that a well-ordered society is realistically possible, where citizens agree on a liberal conception of justice and standards for public reason and political reasonableness.
85. Of reasonable comprehensive doctrines Rawls then says that, among other characteristics, they "are the doctrines that reasonable citizens affirm." (Political Liberalism, p. 36)
86. He hopes that the "deliberately loose" account of reasonable comprehensive doctrines can be compensated for by the account of reasonable persons. See Political Liberalism, p. 59. See also pp. xvi/xviii in the paperback edition: "Political liberalism also supposes that a reasonable comprehensive doctrine does not reject the essentials of a democratic regime."
87. Disagreement on comprehensive moral, philosophical, and religious doctrines is inevitable among even rational and fully reasonable persons because of certain "burdens of judgment," such as vagueness of general terms, evidentiary disputes, and diverse experiences.
88. Two other features of reasonable persons Rawls mentions are: (1) They want to be seen as fully cooperating members of society by others; (2) they have a "reasonable moral psychology." The latter condition implies reasonable persons are capable of acting for the sake of a conception of justice. Political Liberalism, pp. 81-82.
89. See Habermas, in "Reconciliation through Public Reason," in his The Inclusion of the Other (MIT, 1998),
90. originally appearing in The Journal of Philosophy, 92 (March 1995), 109-131. Cf. Gaus, in DD1, p. 224.
91. Joshua Cohen apparently does not find this to be such a problem. He says that different comprehensive views will interpret acceptable reasons differently and will assign them different weights. So long as people appeal to considerations that are acceptable to all, then "the fact that a proposal has majority support will itself commonly count as a reason for endorsing it." See, DD2, p. 197. For reasons mentioned in the text below I disagree. Cf. Rawls's claim: But "the assignment of weights is an essential and not a minor part of a conception of justice," for if two people differ about the weight to be assigned to different principles "then their conceptions of justice are different." (A Theory of Justice, p. 41 (pp. 36-37 rev. ed.).
92. Rawls, "The Idea of Public Reason Revisited," in Collected Papers, p. 581.
93. Gutmann and Thompson, Democracy and Disagreement, p. 76.
94. Gutmann and Thompson, Democracy and Disagreement, p. 78. They also say with respect to abortion and capital punishment that there are "mutually acceptable reasons" to which either side in democratic debate can appeal "that not only call into question our best judgment but also permit other citizens to reject our judgment and defend opposing ones."
95. Gutmann's and Thompson's conception of public reason differs from Rawls's and Cohen's in that it does not exclude many reasons the latter would deem metaphysical,epistemological, or comprehensive moral reasons. For example, they do not wholly reject or exclude from public reason the basic principles that libertarians and utilitarians offer as justifications. See, generally, chs. 3 and 4 of Democracy and Disagreement. They define public reasons in terms of a principle of reciprocity: "When citizens make moral claims in a deliberative democracy, they appeal to reasons or principles that can be shared by fellow citizens who are similarly motivated. The moral reasoning is in this way mutually acceptable." (Democracy and Disagreement, p. 55).
96. Their discussion indicates that, whereas religious considerations advanced by fundamentalists do not satisfy this reciprocity requirement on reasons (p. 65), philosophical considerations on abortion of the kind advanced by Ronald Dworkin and Judith Thompson do satisfy the criterion, as perhaps would the secular pro-life arguments (made by John Noonan) that life begins at conception since the zygote has a full genetic code (pp. 85-86). Abortion is their example of an issue that is not resolved by the reciprocity restriction on public reason. (Here they are in disagreement with Rawls. See Political Liberalism, p. 243nf, 246). In the event of such "deliberative disagreement", they propose principles of accommodation to preserve mutual respect in the face of unresolvable differences.
97. Habermas contends against communitarianism that moral questions of universal justice, not ethical questions of national identity, are the primary questions of deliberative discourse in a democracy. See his Between Facts and Norms, p. 282.
98. Habermas, Between Facts and Norms, p. 313.
99. For Gutmann and Thompson, accommodating moral disagreement on a basis of mutual respect is at least as important as resolving it. See Democracy and Disagreement, pp. 9, 79-85. In this and other regards, their view resembles that of Rawls.
100. I say "politically resolvable" rather than "morally resolvable." Of course, moral problems are not morally resolvable on the basis of public reason. For Rawls, it is not the role of liberal democratic politics or public reason to completely resolve moral disagreement. How could they? A political resolution is a moral resolution for Rawls, but it is not a complete moral resolution. It morally resolves a problem for purposes of democratic justice and politics.
101. Political philosophy for Habermas has a more "modest" role to play than working out substantive requirements of justice; it should instead provide the procedural conditions for the "normative validity" of democratic decisions. "What [moral philosophy] cannot do is make any kind of substantive contribution .... Moral philosophy does not have privileged access to particular moral truths." Habermas, "Morality and Ethical Life," in his Moral Consciousness and Communicative Action, p. 211.
102. "Real argument makes moral insight possible." Moral Consciousness and Communicative Action, Ibid., p. 57; see also pp. 67, 68, 94, 211.
103. See Gutmann and Thompson, Democracy and Disagreement, p. 44, where they say that the assumption that we can know the political truth before democratic deliberation with others who will be affected by laws can rarely if ever be justified.
104. See Gutmann and Thompson, Democracy and Disagreement, pp. 35, 38-39, 200, 223-29. For example, they contend that actual democratic deliberation is required to define an adequate social minimum, and more generally, what their principle of basic opportunity requires in the way of social conditions needed for free and equal deliberation. See pp. 217-19.
105. Gutmann and Thompson do not deny the role of principles of justice in public deliberation. Their objection to Rawls is that he tries to restrict public reason to reliance on a single conception of justice (or at least a narrow range of liberal conceptions), and that, besides the fact that this conception is indeterminate with respect to many questions, exclusive reliance on it limits political autonomy and the range of public reason. So in addition to justice as fairness, they see libertarianism, utilitarianism, and other egalitarian views as admissible within the range of public reason. See their Democracy and Deliberation, chs. 3-4. For Rawls, such a move makes public justification impossible.
106. Rawls, Collected Papers, p. 582.
107. Rawls, Collected Papers, Ibid., p. 583.
108. Rawls mentions specifically Habermas's discourse conception of legitimacy, as well as Catholic views of the common good, as permissible forms of public reason, so long as they are expressed in terms of political values and not in terms of the comprehensive doctrines of which they are part. See also Political Liberalism, (paperback ed.) pp. lii-liii.
109. Libertarianism is not a reasonable political conception according to Rawl's criterion. It cannot then provide content to public reason. This should not surprise, since libertarians normally reject democracy. For Rawls, libertarianism is not a reasonable political conception for it does not ensure citizens resources to make effective use of their freedoms and opportunities. Not having a place for a social minimum, libertarianism cannot satisfy the limiting condition of a political conception, the criterion of reciprocity. We cannot reasonably expect everyone, especially those worse off, to reasonably accept political terms of cooperation that assign rights to income and wealth only according to libertarian entitlement principles.
110. Because Young recognizes that "just and wise solutions to their shared problems" (DD1, p. 402) are the aim of democratic deliberation, her rejection of the common good as the focus of deliberation should not be understood as a rejection of a shared commitment to justice. She aims to reject views that insist that differences and perspectives should be put aside in deliberation in favor of an impartial point of view. For in non-ideal circumstances of social and economic inequality, so-called "impartial" norms are often biased, and the "common good" is usually defined so as to reinforce social privilege. DD1, p. 399.
111. So, Thomas Christiano argues that the significance of democratic deliberation lies, not in the fact that it enables citizens to discover what is required by some external standard, but in such facts as democratic rule checks the power of elites, protects fundamental rights, and advances the self-respect of citizens. See the papers by Thomas Christiano and by Jack Knight and James Johnson in DD1, and Henry Richardson's discussion of this issue, in his paper in DD1, p. 359.
112. Rawls says: "The idea of the original position is to set up a fair procedure so that any principles agreed to will be just. The aim is to use the notion of pure procedural justice as a basis of the theory." A Theory of Justice, p. 136 (p. 118 rev. ed.). See also p. 120 (p. 104 rev. ed.).
113. As previously indicated, this needs to be qualified given Rawls's most recent work on the subject. In "The Idea of Public Reason Revisited," Rawls says that there will be different liberal conceptions of justice that provide content to public reason in a well-ordered society. So at most it can be said here that citizens are united in affirming the basic liberties and their priority, and a social minimum (although they disagree about how that is to be set).
114. Michelman, "How Can the People Ever Make the Laws: A Critique of Deliberative Democracy," DD1, pp. 145-72 at p. 152.
115. See Habermas's criticism of Rawls in "Reconciliation Through the Public Use of Reason," Journal of Philosophy 32 (March 1995): 128,
116. where Habermas says Rawlsian citizens, because their deliberations are to be guided by the principles of justice, "cannot reignite the radical democratic embers of the original position in the civic life of their society." Rawls replies to this criticism in "Reply to Habermas," Journal of Philosophy 92 (March 1995) 153-60,
117. and Political Liberalism (1996 paperback ed), pp. 399-409 .
118. Political Liberalism Ibid., p. 131.
119. I assume Rawls intends his liberal principle of legitimacy as necessary and not a sufficient condition. A proposal that Congress has not passed (e.g., universal health care) is not valid law or legitimately enforceable, even though required by basic justice and any constitution commanding reasonable consent. Rawls's point is that, assuming a law is enacted according to legitimate procedures, its legitimacy still depends on the further condition that it accord with a constitution that would command reasonable consent. This does not mean that all unjust laws are not legally valid or legitimate, for even under ideal conditions a law could be enacted according to a just constitution and still be unjust or not wholly just (due to mistake or lack of adequate information). See Rawls, A Theory of Justice, sec. 53, "The Duty to Comply with an Unjust Law."
120. See Gutmann and Thompson, Democracy and Disagreement, p. 26-27, 33-39.