Legal Theory Legal Theory Lecture 22 Lecture 22 Habermas, Law and Democracy Habermas, Law and Democracy 3 key issues: 3 key issues: The legitimation of law The legitimation of law under conditions of social under conditions of social pluralism pluralism The relationship between The relationship between fundamental rights and fundamental rights and democracy democracy The constitutionalisation of The constitutionalisation of fundamental rights fundamental rights
Transcript
Legal Theory Legal Theory Lecture 22Lecture 22
Habermas, Law and DemocracyHabermas, Law and Democracy
3 key issues:3 key issues:
The legitimation of law under The legitimation of law under conditions of social pluralismconditions of social pluralism
The relationship between The relationship between fundamental rights and fundamental rights and democracydemocracy
The constitutionalisation of The constitutionalisation of fundamental rightsfundamental rights
Three key ways in which law can Three key ways in which law can operate within a society:operate within a society:
By sanctions and the fear of By sanctions and the fear of sanctions amongst its subjects;sanctions amongst its subjects;
By habit;By habit;
By the general, free and rational By the general, free and rational acceptance of its subjectsacceptance of its subjects
(Or some combination of these)(Or some combination of these)
To the extent that one values To the extent that one values freedom and prefers a legal system freedom and prefers a legal system based on the general rational based on the general rational acceptance of its subjects to one acceptance of its subjects to one imposed by force or operating by imposed by force or operating by habit, one is faced with the challenge habit, one is faced with the challenge of of identifying the formidentifying the form which that which that legal system should take. legal system should take.
What kind of legal system (which laws) What kind of legal system (which laws) will generally command the free and will generally command the free and rational acceptance of subjects? rational acceptance of subjects?
A system comprised of laws which A system comprised of laws which subjects generally believe there are subjects generally believe there are good reasonsgood reasons for having and for having and obeying. obeying.
A system comprised of laws which A system comprised of laws which subjects generally believe are justified subjects generally believe are justified or or legitimatelegitimate..
In a society in which all subjects share the In a society in which all subjects share the samesame set of beliefs, values and interests, set of beliefs, values and interests, the enactment and operation of laws the enactment and operation of laws whose whose contentcontent reflects those shared reflects those shared beliefs, values and interests will be freely beliefs, values and interests will be freely and rationally accepted by those subjects and rationally accepted by those subjects and will be readily justified (legitimated) and will be readily justified (legitimated) with reference to those beliefs, values with reference to those beliefs, values and interests (reasons). and interests (reasons).
Laws may be legitimated by their content. Laws may be legitimated by their content.
Socially Pluralistic SocietiesSocially Pluralistic Societies In a society in which In a society in which only someonly some subjects share a subjects share a
set of beliefs, values and interests, a law which set of beliefs, values and interests, a law which reflects those beliefs, values and interests will be reflects those beliefs, values and interests will be freely and rationally accepted only by those freely and rationally accepted only by those subjects who share them and will be readily subjects who share them and will be readily justified (legitimated) with reference to those justified (legitimated) with reference to those beliefs, values and interests (reasons) only by beliefs, values and interests (reasons) only by those subjects. those subjects.
For other subjects holding competing beliefs, values and For other subjects holding competing beliefs, values and interests, that law will not be freely and rationally interests, that law will not be freely and rationally accepted but will operate by some other means – for accepted but will operate by some other means – for example, by the operation of sanctions and the fear of example, by the operation of sanctions and the fear of sanctions. sanctions.
Laws may not be legitimated by their content. Laws may not be legitimated by their content. Something else is required. Something else is required.
In a pluralistic society where In a pluralistic society where consensus about beliefs, values and consensus about beliefs, values and interests (moral, political, religious) interests (moral, political, religious) appears not to exist, how can we appears not to exist, how can we justify/legitimate a law or legal justify/legitimate a law or legal system? system?
How can we effectively argue that one How can we effectively argue that one law or legal system is to be generally law or legal system is to be generally preferred over any other? preferred over any other?
How can we argue for the legitimacy How can we argue for the legitimacy of a given law or legal system? of a given law or legal system?
Habermas’s projectHabermas’s project in in Between Fact and Between Fact and NormsNorms (BFN) is to articulate a legal theory (BFN) is to articulate a legal theory for a for a modernmodern society such as ours where society such as ours where traditional sources of legal traditional sources of legal authority and authority and legitimacylegitimacy have broken down. have broken down.
What grounds the What grounds the legitimacylegitimacy of positive of positive laws in a modern pluralistic societylaws in a modern pluralistic society
What is it that can give the (rational) What is it that can give the (rational) members of such a society members of such a society good reason good reason to obeyto obey the laws they are subject to? the laws they are subject to?
Key questionKey question - how can we explain the fact - how can we explain the fact that certain positive laws, the contents of that certain positive laws, the contents of which do not directly serve the values or which do not directly serve the values or interests of certain members of society, may interests of certain members of society, may nevertheless be accepted by those members nevertheless be accepted by those members as as legitimatelegitimate? ?
Habermas argues that in the modern age the Habermas argues that in the modern age the only universally recognised source of only universally recognised source of legitimacy in relation to law is that the law be legitimacy in relation to law is that the law be the result of a the result of a democratic law-making democratic law-making processprocess. .
"The "The democratic procedure for the democratic procedure for the production of lawproduction of law evidently forms the only evidently forms the only post-metaphysical source of legitimacy". (BFN post-metaphysical source of legitimacy". (BFN p.448)p.448)
Habermas’s argument in relation to legitimacy Habermas’s argument in relation to legitimacy and democracyand democracy
Habermas starts with some standard liberal Habermas starts with some standard liberal premises: premises: Most human beings are fundamentally Most human beings are fundamentally rationalrational. .
Rational beings recognise the value of their own Rational beings recognise the value of their own freedomfreedom. .
On the On the classical liberal model classical liberal model (Hobbes, Rawls(Hobbes, Rawls)), , rational individuals choose to form a social contract rational individuals choose to form a social contract (constitution) and create the state in order to (constitution) and create the state in order to preserve their freedom. preserve their freedom.
Positive law is legitimate to the extent that it complies Positive law is legitimate to the extent that it complies with the terms (content) of the social contract with the terms (content) of the social contract (constitution).(constitution).
That contract/constitution will reflect the shared That contract/constitution will reflect the shared fundamental interests of the individuals who formulate it.fundamental interests of the individuals who formulate it.
Habermas rejects the traditional liberal model of humans as Habermas rejects the traditional liberal model of humans as beings whose rationality consists in them being able to beings whose rationality consists in them being able to think and act rationally think and act rationally in isolation from othersin isolation from others (See (See Preuss article). Preuss article).
Habermas takes a more Habermas takes a more socialsocial (communitarian) (communitarian) perspective on humans. perspective on humans.
Humans are fundamentally Humans are fundamentally communicatively rationalcommunicatively rational – – which is to say they are only able to think and act rationally which is to say they are only able to think and act rationally and freely to the extent that they are able to and freely to the extent that they are able to communicatecommunicate effectively with others (roots in empirical effectively with others (roots in empirical language/discourse theory).language/discourse theory).
Adequate communication with others is a pre-condition of Adequate communication with others is a pre-condition of individual rationality and freedom (per communitarianism?).individual rationality and freedom (per communitarianism?).
The better the quality of one’s communication with others, The better the quality of one’s communication with others, the more fully one may realise one’s humanity, rationality the more fully one may realise one’s humanity, rationality and freedom (and freedom (communicative liberalismcommunicative liberalism).).
Based on rational reflection and Based on rational reflection and empirical research, Habermas empirical research, Habermas elaborates a theory about the elaborates a theory about the conditions under which high quality conditions under which high quality communication with others can take communication with others can take place. place.
These are the conditions of These are the conditions of communicative rationalitycommunicative rationality, the , the conditions under which people are conditions under which people are most fully able to communicate with most fully able to communicate with others , are most fully rational and others , are most fully rational and free, and most fully human. free, and most fully human.
He identifies the conditions of He identifies the conditions of communicative rationality as (roughly) communicative rationality as (roughly) those conditions under which any person, in those conditions under which any person, in the course of their communication with the course of their communication with others, is:others, is:
treated with equal respect;treated with equal respect; enabled to express themselves freely, enabled to express themselves freely, enabled to listen to others and to be listened to, enabled to listen to others and to be listened to, enabled to rationally argue for and discuss their enabled to rationally argue for and discuss their
beliefs, values and interestsbeliefs, values and interests enabled to participate as an equal in any enabled to participate as an equal in any
decision-making or action affecting that person.decision-making or action affecting that person.
Positive laws which maintain the Positive laws which maintain the conditions of communicative conditions of communicative rationality will be considered rationality will be considered legitimate by rational subjects because legitimate by rational subjects because they will be seen as necessary to the they will be seen as necessary to the maintenance of their own freedom.maintenance of their own freedom.
Such laws will be considered Such laws will be considered constitutional (basic) by rational constitutional (basic) by rational subjects because they are subjects because they are fundamental to ensuring their own fundamental to ensuring their own communicative rationality, identity and communicative rationality, identity and freedom.freedom.
A legitimate constitution will contain A legitimate constitution will contain provisions which institutionalise the provisions which institutionalise the conditions of communicative rationality. conditions of communicative rationality.
It will contain provisions which provide that It will contain provisions which provide that all subjects are: all subjects are: treated with equal respect;treated with equal respect; enabled to express themselves freely, enabled to express themselves freely, enabled to listen to others and to be listened to, enabled to listen to others and to be listened to, enabled to rationally argue for and discuss their enabled to rationally argue for and discuss their
beliefs, values and interestsbeliefs, values and interests enabled to participate as an equal in any enabled to participate as an equal in any
decision-making or action affecting that person.decision-making or action affecting that person.
For Habermas, the conditions of For Habermas, the conditions of communicative rationality in the communicative rationality in the public sphere are the conditions of public sphere are the conditions of democracy. democracy.
Communicative rationality in the Communicative rationality in the public sphere = democracypublic sphere = democracy
DemocracyDemocracy - OED - OED Government by the people; that form of government in Government by the people; that form of government in
which the sovereign power resides in the people as a which the sovereign power resides in the people as a whole, and is exercised either directly by them (as in the whole, and is exercised either directly by them (as in the small republics of antiquity) or by officers elected by them. small republics of antiquity) or by officers elected by them. In modern use often more vaguely denoting a social state in In modern use often more vaguely denoting a social state in which all have which all have equal rightsequal rights, without hereditary or arbitrary , without hereditary or arbitrary differences of rank or privilege. differences of rank or privilege.
In a democracy, state power is exercised by the people and In a democracy, state power is exercised by the people and for the people of the state. for the people of the state.
Democratic legal process involves the creation, Democratic legal process involves the creation, interpretation and enforcement of law in a manner which:interpretation and enforcement of law in a manner which: Is accountable to the people;Is accountable to the people; Is in the interests of the people;Is in the interests of the people; Involves the people.Involves the people.
See also Bottomley on good See also Bottomley on good (legitimate) governance in the (legitimate) governance in the corporate spherecorporate sphere
See also Iris Marion Young, Hutchinson See also Iris Marion Young, Hutchinson and Monahan, Waldron on the and Monahan, Waldron on the conditions of democracy.conditions of democracy.
A legitimate constitution in a modern pluralist A legitimate constitution in a modern pluralist society will be a democratic constitution – one society will be a democratic constitution – one which establishes the conditions of which establishes the conditions of democratic decision-making and action and democratic decision-making and action and which is itself established or reiterated by which is itself established or reiterated by democratic means. democratic means.
"From the standpoint of legal theory, the "From the standpoint of legal theory, the modern legal order can draw its legitimacy modern legal order can draw its legitimacy only from the idea of only from the idea of self-determinationself-determination: : citizens should always be able to understand citizens should always be able to understand themselves also as themselves also as authors of the lawauthors of the law to to which they are subject as addressees". (BFN which they are subject as addressees". (BFN p.449)p.449)
FurtherFurther, ,
given their recognition of the need for there given their recognition of the need for there to be substantive laws regulating the to be substantive laws regulating the behaviour of the members of the society; behaviour of the members of the society; and and
given their recognition that their own given their recognition that their own individual values and interests may not individual values and interests may not always be taken up by law; always be taken up by law;
rational subjects will accept the legitimacy of rational subjects will accept the legitimacy of substantive positive law as long as it is substantive positive law as long as it is created under conditions of communicative created under conditions of communicative rationality – that is in accordance with a rationality – that is in accordance with a communicatively rational legal constitution. communicatively rational legal constitution.
Therefore, modern rational subjects Therefore, modern rational subjects will accept as legitimate:will accept as legitimate:
any positive law which contributes to any positive law which contributes to the maintenance of democracy the maintenance of democracy within the society (constitutional and within the society (constitutional and public laws); and public laws); and
any positive law which has been any positive law which has been enacted in accordance with such enacted in accordance with such democratic laws. democratic laws.
Substantive positive law is legitimised Substantive positive law is legitimised not by virtue of its not by virtue of its contentcontent but by but by virtue of the virtue of the procedureprocedure by which it by which it was enacted. was enacted.
Within a democratic political-legal Within a democratic political-legal process, validity = legitimacy. process, validity = legitimacy.
This model of legitimacy is consistent This model of legitimacy is consistent with a society in which there is a with a society in which there is a plurality of views about values and plurality of views about values and interests on all issues other than the interests on all issues other than the value of democracy itself. value of democracy itself.
Subjects who do not recognise the value of Subjects who do not recognise the value of democracy and the legitimacy of democratically democracy and the legitimacy of democratically enacted laws are on Habermas’s theory to some enacted laws are on Habermas’s theory to some degree degree irrational irrational and in need of reasoned and in need of reasoned discussion and argument and, if that fails, in need discussion and argument and, if that fails, in need of sanctioning from the state. of sanctioning from the state.
For the reason that a democratic state and For the reason that a democratic state and democratically enacted law are necessary for the democratically enacted law are necessary for the well-being of its rational subjects, the state is well-being of its rational subjects, the state is authorised (indeed expected) to exercise authorised (indeed expected) to exercise coercioncoercion to ensure that the law is obeyed by its subjects to ensure that the law is obeyed by its subjects and the conditions of democracy protected. and the conditions of democracy protected.
The state exercises coercion according to The state exercises coercion according to democratically enacted positive laws (rule democratically enacted positive laws (rule of law). of law).
Democracy may need to be defended. Democracy may need to be defended.
Query the majoritarian implications of this. Query the majoritarian implications of this.
Note the resonances here with the earlier Note the resonances here with the earlier discussion on the limits of liberal toleration discussion on the limits of liberal toleration of illiberal practices in minority groups.of illiberal practices in minority groups.
Does this mean that all law is ultimately based Does this mean that all law is ultimately based on force? on force?
For Habermas the notion of For Habermas the notion of legitimate law is informed by notions legitimate law is informed by notions of of
normativitynormativity - the independent - the independent normative value of democracy; and normative value of democracy; and
positivitypositivity - validity according to a rule - validity according to a rule of recognition (identifiability) and of recognition (identifiability) and enforceability. enforceability.
On positivityOn positivity
If we are to act freely, we need to know If we are to act freely, we need to know what the rules are which regulate our what the rules are which regulate our action. This requires both a rule of action. This requires both a rule of recognition and the publicity of laws. The recognition and the publicity of laws. The law must be law must be identifiableidentifiable. .
Additionally, if law is to protect our Additionally, if law is to protect our freedom it has to be freedom it has to be enforcedenforced on all who on all who might break it (enforceability).might break it (enforceability).
Positivity (understood in terms of Positivity (understood in terms of identifiability and enforceability) is a identifiability and enforceability) is a necessary (but not sufficient) condition of necessary (but not sufficient) condition of legitimacy. legitimacy.
Mere positivity (identifiability and Mere positivity (identifiability and enforceability) is not enough to ensure that enforceability) is not enough to ensure that law is freedom-guaranteeing. (See Hart and law is freedom-guaranteeing. (See Hart and Waldron on the dangers of positive law). Waldron on the dangers of positive law).
An additional element is also needed to An additional element is also needed to ensure the legitimacy of a law – and that is ensure the legitimacy of a law – and that is its enactment by democratic procedure ie its its enactment by democratic procedure ie its validity according to a democratic validity according to a democratic constitution. (Hints of Fuller’s fidelity here)constitution. (Hints of Fuller’s fidelity here)
Not merely liberalism but democratic Not merely liberalism but democratic liberalism. liberalism.
"Modern law is formed by a system of "Modern law is formed by a system of norms that are coercive, positive and, so it norms that are coercive, positive and, so it is claimed, freedom-guaranteeing. is claimed, freedom-guaranteeing.
The formal properties of coercability and The formal properties of coercability and positivity are associated with the claim to positivity are associated with the claim to legitimacy: the fact that norms backed by legitimacy: the fact that norms backed by the threat of state sanction stem from the the threat of state sanction stem from the changeable decisions of a politicalchangeable decisions of a political lawgiver is linked with the expectation that lawgiver is linked with the expectation that these norms guarantee the autonomy of these norms guarantee the autonomy of all legal persons equally. all legal persons equally.
This expectation of legitimacy is This expectation of legitimacy is intertwined with the facticity of making intertwined with the facticity of making and enforcing law". (BFN p.447)and enforcing law". (BFN p.447)
Habermas: between legal positivism Habermas: between legal positivism and natural law theoryand natural law theory
Habermas is not so much concerned with the Habermas is not so much concerned with the descriptive question "what is law?" but with the descriptive question "what is law?" but with the more normatively charged and morally/politically more normatively charged and morally/politically important question "what is important question "what is legitimatelegitimate law?". law?".
He seeks to go beyond the limited positivist He seeks to go beyond the limited positivist concerns about law and embrace the broader and concerns about law and embrace the broader and morally and politically richer concerns of morally and politically richer concerns of contemporary anti-positivists and natural law contemporary anti-positivists and natural law theorists. theorists.
In embarking on his task, Habermas seeks to:In embarking on his task, Habermas seeks to: avoid the defects of both traditional legal positivism and avoid the defects of both traditional legal positivism and
traditional natural law theorytraditional natural law theory adopt the strengths of both. adopt the strengths of both.
Legal PositivismLegal Positivism
Key Defect Key Defect
Legal positivism provides no basis for a Legal positivism provides no basis for a legal critiquelegal critique of (valid) positive law. of (valid) positive law.
Key StrengthKey Strength
Legal positivism seeks to provide an Legal positivism seeks to provide an objective, empirically well-justified objective, empirically well-justified theorytheory of law. of law.
Natural Law TheoryNatural Law TheoryKey DefectKey Defect
The NL source of the legitimacy of positive law is The NL source of the legitimacy of positive law is problematic in two ways:problematic in two ways: epistemicallyepistemically - the standards of legitimacy are not objectively - the standards of legitimacy are not objectively
knowableknowable and are the subject of much disagreement. Difficult and are the subject of much disagreement. Difficult to justify the existence and content of these standards. to justify the existence and content of these standards.
politicallypolitically - as a result of their not being objectively knowable, - as a result of their not being objectively knowable, access to and articulation of the standards of legitimacy access to and articulation of the standards of legitimacy generally resides with an generally resides with an eliteelite whose values and interests may whose values and interests may not coincide with those of other legal subjects. not coincide with those of other legal subjects.
Key StrengthKey Strength
Natural law theories provide a legal basis for the critique of Natural law theories provide a legal basis for the critique of the positive law. the positive law.
Habermas’s legal theoryHabermas’s legal theory A third way between/beyond/including A third way between/beyond/including
facticity and normativity. facticity and normativity.
Habermas's concept of law is "between" Habermas's concept of law is "between" fact (valid enforceable commands) and fact (valid enforceable commands) and norm (extra-legal standards).norm (extra-legal standards).
Habermas's methodology is "between" Habermas's methodology is "between" positivism and natural law theory. positivism and natural law theory.
Source of legitimacy of law for HabermasSource of legitimacy of law for Habermas
The legitimacy of the positive law for The legitimacy of the positive law for Habermas is a function of:Habermas is a function of:
the the factfact that it was that it was createdcreated in accordance with in accordance with legally-constituted legally-constituted democraticdemocratic proceduresprocedures (validity and normativity); (validity and normativity); andand
the the factfact that it can/will be that it can/will be enforcedenforced to ensure to ensure the outcomes of democratic decision-making the outcomes of democratic decision-making within the society will be maintained within the society will be maintained (enforceability and normativity).(enforceability and normativity).
Strengths of Habermas's theoryStrengths of Habermas's theory It avoids the defects and appropriates the strengths of both It avoids the defects and appropriates the strengths of both
legal positivism and natural law theory. legal positivism and natural law theory.
Like legal positivism, it provides an account of law that:Like legal positivism, it provides an account of law that: is based on objective, social scientific reasoning and method; is based on objective, social scientific reasoning and method; acknowledges the role that state acknowledges the role that state coercioncoercion plays in the plays in the
constitution and maintenance of law (though to a lesser extent constitution and maintenance of law (though to a lesser extent than classical positivists);than classical positivists);
Like many natural law theories, it provides a basis for the Like many natural law theories, it provides a basis for the identification of identification of legitimatelegitimate law and, thus, for the legal law and, thus, for the legal critique of existing or proposed positive law. critique of existing or proposed positive law.
Unlike classical natural law theory though, the basis for Unlike classical natural law theory though, the basis for such critique lies in the such critique lies in the objectively knowable and objectively knowable and democratically defensibledemocratically defensible conditions of conditions of communicative communicative rationalityrationality. .
It provides an account of both It provides an account of both law and the critique of law and the critique of lawlaw based on objective and justifiable reasoning and based on objective and justifiable reasoning and method. method.
Critique of HabermasCritique of Habermas As a liberal theorist, Habermas is vulnerable to As a liberal theorist, Habermas is vulnerable to
many of the critiques of liberalism we have many of the critiques of liberalism we have encountered. encountered.
Note Young’s and Moller-Okin's critique of the liberal Note Young’s and Moller-Okin's critique of the liberal emphasis on the public sphere. emphasis on the public sphere.
Is Habermas’s notion of human nature, reason and Is Habermas’s notion of human nature, reason and the public sphere too verbal, intellectual, the public sphere too verbal, intellectual, argumentative etc. – too male, too middle-class, argumentative etc. – too male, too middle-class, too ethnocentric? See the accounts of these too ethnocentric? See the accounts of these advocated by CLS, feminism, critical race theory advocated by CLS, feminism, critical race theory etc.etc.
Is his theory too historically and culturally specific Is his theory too historically and culturally specific (Western modernity)? Does it fail to apply to other (Western modernity)? Does it fail to apply to other less pluralistic cultures where there is a moral or less pluralistic cultures where there is a moral or religious consensus.religious consensus.
Why see communication as fundamental Why see communication as fundamental to humans? Why not some irrational drive to humans? Why not some irrational drive to survival, self-interest etc.? Are his to survival, self-interest etc.? Are his empirical claims true or even provable? empirical claims true or even provable?
Why assume that most people are rational Why assume that most people are rational in the sense he uses the term? in the sense he uses the term?
Is he able to resolve the tension between Is he able to resolve the tension between majoritarianism and minority rights? What majoritarianism and minority rights? What happens if rational agreement can't be happens if rational agreement can't be reached? Will the majority's will ultimately reached? Will the majority's will ultimately prevail? prevail?
Habermas on the relationship between Habermas on the relationship between democracy and rightsdemocracy and rights
Question is "what [legal] rights Question is "what [legal] rights mustmust citizens mutually grant each other if they citizens mutually grant each other if they decide to constitute themselves as a decide to constitute themselves as a voluntary association of legal consociates voluntary association of legal consociates and to legitimately regulate their living and to legitimately regulate their living together by means of positive law?" (BFN together by means of positive law?" (BFN p.453)p.453)
Habermas conceives of the constitutional Habermas conceives of the constitutional task as that of setting up a system of legal task as that of setting up a system of legal rights, institutions and principles by which rights, institutions and principles by which the the public and private autonomy public and private autonomy (freedom/self-determination)(freedom/self-determination) of citizens can of citizens can be cultivated and protected. be cultivated and protected.
AutonomyAutonomy (freedom/self-determination under (freedom/self-determination under law) comprises two key dimensions:law) comprises two key dimensions:
Public autonomyPublic autonomy - Freedom to participate - Freedom to participate equally in the creation and maintenance of equally in the creation and maintenance of the legal system and pursue other collective the legal system and pursue other collective goals (economic, social, technological etc). goals (economic, social, technological etc). Facilitates the setting and realising of public goals Facilitates the setting and realising of public goals
(including the maintenance of a democratic legal (including the maintenance of a democratic legal system) through the operation of system) through the operation of public rightspublic rights (communicative liberties). (communicative liberties).
Private autonomyPrivate autonomy - Freedom to pursue - Freedom to pursue one's own way of life and goals within the one's own way of life and goals within the society. society. Facilitates individual freedom to choose one's Facilitates individual freedom to choose one's
personal or shared conception of the good life personal or shared conception of the good life through the operation of through the operation of private rightsprivate rights (individual liberties).(individual liberties).
Therefore, a legal system needs to provide Therefore, a legal system needs to provide two kinds of rights to its citizens if they are two kinds of rights to its citizens if they are to be properly free: to be properly free:
Public rightsPublic rights (communicative liberties) to (communicative liberties) to participate as an equal in the creation and participate as an equal in the creation and maintenance of the legal system which maintenance of the legal system which governs citizens and in the pursuit of other governs citizens and in the pursuit of other collective goals.collective goals.
Private rightsPrivate rights (individual liberties) to (individual liberties) to pursue each person’s own way of life and pursue each person’s own way of life and goals goals consistent withconsistent with the rights of others the rights of others to pursue theirs and with maintenance of a to pursue theirs and with maintenance of a system of public rights. system of public rights.
Private autonomyPrivate autonomy ensured by individual ensured by individual liberties - classical liberal rights to life, liberties - classical liberal rights to life, liberty and property with an anonymous liberty and property with an anonymous rule of law.rule of law.
Freedom from unreasonable interference with Freedom from unreasonable interference with one’s reasonable pursuit of the good life by one’s reasonable pursuit of the good life by State or other persons (legal accountability State or other persons (legal accountability rights);rights);
Freedom of conscience, speech, religion, Freedom of conscience, speech, religion, association, travel, etc.association, travel, etc.
Property rightsProperty rights Fair notice rightsFair notice rights Rights to access the courts to enforce other Rights to access the courts to enforce other
private rightsprivate rights Due process in legal proceedings affecting one’s Due process in legal proceedings affecting one’s
Public autonomyPublic autonomy ensured by mechanisms of ensured by mechanisms of popular sovereignty and democratic self-popular sovereignty and democratic self-legislation. legislation.
Right to participate in public decisions affecting one’s Right to participate in public decisions affecting one’s interests as an equalinterests as an equal
Right to voteRight to vote Right to voting equalityRight to voting equality Right to run for and sit in ParliamentRight to run for and sit in Parliament Right to equality of voting power in ParliamentRight to equality of voting power in Parliament Right to equally participate in public discussions about Right to equally participate in public discussions about
Right to information affecting one’s interests (freedom of Right to information affecting one’s interests (freedom of political communication)political communication)
Fair notice rightsFair notice rights Rights to access the courts to enforce other public rightsRights to access the courts to enforce other public rights Due process in legal proceedings affecting one’s public Due process in legal proceedings affecting one’s public
interests interests
Are public rights more fundamental to self-Are public rights more fundamental to self-determination than private rights or vice versa? determination than private rights or vice versa?
The individual liberties which ensure private autonomy are The individual liberties which ensure private autonomy are ensuredensured only by being the product of the exercise of public only by being the product of the exercise of public autonomy. autonomy.
Why? Because if given a free choice, rational people will Why? Because if given a free choice, rational people will ensureensure that private autonomy is provided for by their legal that private autonomy is provided for by their legal system. system.
Only the people themselves can ensure that their private Only the people themselves can ensure that their private rights are provided for at law. rights are provided for at law.
Therefore, Therefore, private autonomy relies upon public private autonomy relies upon public autonomyautonomy. .
Public rights necessary for self-determination as Public rights necessary for self-determination as fundamental rights?fundamental rights? Argument for public rights to be constitutionally entrenched? Argument for public rights to be constitutionally entrenched?
FurtherFurther, though, public autonomy may only be , though, public autonomy may only be properly properly exercisedexercised by privately autonomous individuals. by privately autonomous individuals.
Why? Because only people who are privately autonomous Why? Because only people who are privately autonomous (who have had the benefit of living privately autonomous (who have had the benefit of living privately autonomous lives) are lives) are capablecapable of properly exercising the rights and of properly exercising the rights and responsibilities that go with public autonomy. responsibilities that go with public autonomy.
Only free and rational (privately autonomous) people are Only free and rational (privately autonomous) people are capable of governing themselves in the public sphere. capable of governing themselves in the public sphere.
Therefore, Therefore, public autonomy relies upon private public autonomy relies upon private autonomyautonomy. .
Private rights necessary for self-determination as Private rights necessary for self-determination as fundamental rights?fundamental rights? Argument for private rights to be constitutionally entrenched? Argument for private rights to be constitutionally entrenched?
"The individual liberties of the subjects of private "The individual liberties of the subjects of private law and the public autonomy of enfranchised law and the public autonomy of enfranchised citizens citizens make each other possiblemake each other possible". (BFN p.454)". (BFN p.454)
BothBoth private and public rights are necessary to private and public rights are necessary to ensure freedom/self-determination under law. ensure freedom/self-determination under law.
All those private and public rights necessary for the All those private and public rights necessary for the maintenance of self-determination as fundamental rights?maintenance of self-determination as fundamental rights?
Argument for all those private and public rights necessary Argument for all those private and public rights necessary for the maintenance of self-determination to be for the maintenance of self-determination to be constitutionally entrenched? constitutionally entrenched?
Habermas goes beyond mere liberalism to a richer Habermas goes beyond mere liberalism to a richer democratic liberalism. democratic liberalism.
“…“…the desired the desired internal relation between internal relation between human rights and popular sovereigntyhuman rights and popular sovereignty consists in the fact that the requirement of consists in the fact that the requirement of legally institutionalising self-legislation can legally institutionalising self-legislation can be fulfilled only with the help of a code be fulfilled only with the help of a code ((constitutionconstitution) that simultaneously implies ) that simultaneously implies the the guaranteeguarantee of actionable of actionable individual individual libertiesliberties. By the same token, the . By the same token, the equal equal distributiondistribution of these liberties can in turn of these liberties can in turn be satisfied only by a be satisfied only by a democratic democratic procedureprocedure that grounds the supposition that grounds the supposition that the outcomes of political opinion and that the outcomes of political opinion and will formation are reasonable. This shows will formation are reasonable. This shows how private and public autonomy how private and public autonomy reciprocally presuppose one another in reciprocally presuppose one another in such a way that such a way that neither one may claim neither one may claim primacy over the otherprimacy over the other. “ BFN p.455. “ BFN p.455
Key questionKey question - should all those fundamental private and - should all those fundamental private and public rights necessary for the maintenance of self-public rights necessary for the maintenance of self-determination be determination be constitutionally entrenchedconstitutionally entrenched? ?
Should the very conditions of freedom and democracy at Should the very conditions of freedom and democracy at law be put law be put beyondbeyond the free and democratic control of any the free and democratic control of any given generation of citizens? given generation of citizens?
NoNo - Fundamental rights should be enforceable only as - Fundamental rights should be enforceable only as positive laws and should not be given priority as pre-given positive laws and should not be given priority as pre-given moral facts over the legislative power of the sovereign moral facts over the legislative power of the sovereign people. Public autonomy would be infringed if fundamental people. Public autonomy would be infringed if fundamental rights were given such primacy.rights were given such primacy.
YesYes - The people regardless of their public autonomy should - The people regardless of their public autonomy should not be able to enact any laws which violate the not be able to enact any laws which violate the fundamental human rights necessary for the realisation of fundamental human rights necessary for the realisation of public and private autonomy. Fundamental private and public and private autonomy. Fundamental private and public rights are necessary conditions of there being public rights are necessary conditions of there being popular sovereignty and legitimate positive law in the first popular sovereignty and legitimate positive law in the first place. place.
