Rights without dignity?: Some critical reflections on Habermas's procedural model of law and democracy

Philosophy & Social Criticism

Volumn 27, Issue 3, 2001, Pages 21-40

  Mahoney, Jon ^a  

^a AUBURN UNIVERSITY   (United States)

Author keywords

autonomy; deontological reasons; Habermas; moral injury; proceduralism; rights

Indexed keywords

EID: 84997967378     PISSN: 01914537     EISSN: None     Source Type: Journal    
DOI: 10.1177/019145370102700302     Document Type: Article

References (44)

1. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge, MA: MIT Press, 1996);
2. hereafter cited as BFN, pp. 99–104.
3. See Ronald Dworkin's ‘Principle, Policy, Procedure’, in A Matter of Principle (Cambridge, MA: Harvard University Press, 1985), pp. 72–103.
4. The concept of moral justification that I rely on is best expressed by Christine Korsgaard's phrase ‘the appeal to autonomy’. See Sources of Normativity (New York: Cambridge University Press, 1996), pp. 19–20.
5. Christine Korsgaard, ‘The Reasons we can Share: an Attack on the Distinction between Agent-relative and Agent-neutral values’, in Creating the Kingdom of Ends (New York: Cambridge University Press, 1996)
6. pp. 275–310.
7. John Arthur, Words that Bind: Judicial Review and the Grounds of Modern Constitutional Theory (Boulder, CO: Westview Press, 1995);
8. see Chap. 2, ‘Perfecting the Democratic Process’, pp. 45–74.
9. These arguments represent my own reconstruction of two visible threads of thought that Dworkin has consistently defended. See, for instance, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977), Chap. 7
10. ‘Taking Rights Seriously’, pp. 184–205;
11. Freedom's Law: A Moral Reading of the Constitution (Cambridge, MA: Harvard University Press, 1996), esp. the introduction ‘The Moral Reading and the Majoritarian Premise’, pp. 1–38.
12. Dworkin, Freedom's Law, pp. 15–16.
13. Dworkin, ‘Why Liberals should care about Equality’, in A Matter of Principle, pp. 203–13.
14. Dworkin, ‘Principle, Policy, Procedure’, pp. 80–1.
15. Jürgen Habermas, ‘Discourse Ethics: Notes on a Program of Philosophical Justification’, in Moral Consciousness and Communicative Action, trans. C. L. Lenhardt and S. W. Nicholsen (Cambridge, MA: MIT Press, 1996), pp. 43–115.
16. Bruce Ackerman, We the People: Foundations (Cambridge, MA: Harvard University Press, 1991).
17. Ackerman uses this expression to designate the position of those whose ‘populist enthusiasms are constrained by deeper commitments to fundamental rights’ (p. 11).
18. BFN, p. 107.
19. In ‘Discourse Ethics: Notes on a Program of Philosophical Justification’, pp. 66 and 93, Habermas argued that (D) was specifically a moral principle. His current position thus involves a revision of an earlier conception of the discourse principle.
20. ‘Against Subordination: Morality, Discourse, and Decision in the Legal Theory of Jürgen Habermas’, in Habermas on Law and Democracy: Critical Exchanges, eds Michael Rosenfeld and Andrew Arato (Berkeley, CA: Berkeley University Press, 1998), pp. 257–71 (p. 260).
21. Habermas, ‘A Genealogical Analysis of the Cognitive Content of Morality’, in The Inclusion of the Other, eds Ciaran Cronin and Pablo De Greiff, trans.
22. Ciaran Cronin (Cambridge, MA: MIT Press, 1998), pp. 3–46.
23. ‘Remarks on Legitimation through Human Rights’, in Philosophy and Social Criticism 24(2/2) (1998): 157–71 (p. 164), 166.
24. BFN, p. 103.
25. John Rawls, Political Liberalism (New York: Columbia University Press, 1996).
26. Habermas's proceduralism is more demanding of citizens than is Rawls's ‘free standing’ conception of political liberalism. According to Habermas the sense in which his proceduralism is more demanding does not undermine the aim of accommodating pluralism since an appropriately conceived procedural model of law and democracy can be both inclusive and stable. Most importantly, Habermas believes his model of democracy is more democratic and inclusive than Rawls's. See Habermas, ‘Reasonable versus True, or the Morality of Worldviews’, in The Inclusion of the Other, pp. 75–101.
27. BFN, p. 82.
28. BFN, p. 82, 122–3, 84–94.
29. See Habermas, ‘Three Normative Models of Democracy’, in The Inclusion of the Other, pp. 239–52.
30. Dworkin, ‘Principle, Policy, Procedure’, p. 80.
31. ‘What Rights do we have?’, in Taking Rights Seriously, pp. 266–78
32. also ‘Why Liberals should care about Equality’, pp. 203–13.
33. For an insightful analysis of the harm done to persons when they are humiliated by institutions or by others see Avashai Margalit, The Decent Society (Cambridge, MA: Harvard University Press, 1996).
34. Dworkin, ‘Principle, Policy, Procedure’, p. 81.
35. Korsgaard, Sources of Normativity, pp. 19–20.
36. Thomas Nagel was the first to use the concept ‘deontological reason’; see The Possibilityof Altruism (Princeton, NJ: Princeton University Press. 1970), p. 73.
37. Korsgaard, ‘The Reasons we can share’, pp. 275–310.
38. In Korsgaard's words, ‘Values are neither subjective nor objective, but rather are intersubjective. They supervene on the structure of personal relations.’ p. 276, 298.
39. There are in fact strong similarities between the conception of practical reason defended by Korsgaard and Habermas's theory of communicative rationality. See, for example, Habermas's recent essay ‘Some Further Clarifications of the Concept of Communicative Rationality’, in On the Pragmatics of Communication, trans. Maeve Cooke (Cambridge, MA: MIT Press, 1998), pp. 307–42. One difference between Habermas's position and the one I am trying to develop here is that for Habermas practical reason plays a less significant role in the justification for rights.
40. Ronald Dworkin, Law's Empire (Cambridge, MA: Harvard University Press, 1986), pp. 285–6, 286.
41. Barbara Herman, The Practice of Moral Judgment (Cambridge, MA: Harvard University Press, 1993), p. 55.
42. Charles Larmore, ‘The Foundations of Modern Democracy’, in Justice: Alternative Perspectives, ed. J. Sterba (Belmont, CA: Wadsworth, 1999), pp. 188–96 (p. 196).
43. For a more recent elaboration of this argument see ‘The Moral Basis of Political Liberalism’, Journal of Philosophy xcvi(12) (December 1999): 599–625.
44. In The Inclusion of the Other, pp. 165–01 (p. 190).