Institutionalising Deliberative Democracy

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 (1931) 46 CLR 73.

R v Kirby; Ex parte Boilermakers' Society of Australia (1957) 94 CLR 254 (High Court) and Attorney-General (Cth) v The Queen (1957) 95 CLR 529 (Privy Council).