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Jürgen Habermas's Postconventional Constractarianism As Cosmopolitan

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Jürgen Habermas's Postconventional Constractarianism As Cosmopolitan 2017 LINGUA POSNANIENSIS LIX (1) DoI 10.1515/linpo-2017-0003 Jürgen Habermas’s postconventional constractarianism as cosmopolitan constitutionalism1 Karolina M. Cern Institute of philosophy, adam Mickiewicz University in poznań [email protected] Abstract: Karolina M. Cern. Jürgen Habermas’s postconventional constractarianism as cosmopolitan consti- tutionalism. the poznań Society for the advancement of the arts and Sciences, pL ISSn 0079-4740, pp. ­27-38 In the course of this paper article I shall depict in what way Jürgen habermas’s application of the discourse theory to the democratic polity transforms the contractarian theoretical framework, presuming, however, that the reader is familiar with the general theoretical framework and the basic concepts characteristic for this political tradition. Moreover, I will also show that the relevance of this transformation consists in delivering a justification of a kind of cosmopolitan constitutionalism. Keywords: communicative action, discourse, public justifications, reflexive learning, self-constitutionalisation 1. Exposition of presuppositions and of the basic tool kit Cormac Mac amhlaigh develops a conception of “constitutionalism as legitimacy”, understood “as a form of reason-giving for the legitimacy of authority” (Mac amhlaigh 2016: 177-178). Further, he distinguishes three major accounts of this issue: sociological legitimacy, normative legitimacy and “mixed accounts” (2016: 182), and indicates Jürgen habermas as the most prominent proponent of the third account (2016: 184). What char- acterises the “mixed account” is a link between an external (ideal) yardstick for the evaluation of political and legal actions (“creating or sustaining a ‘right to rule’” (2016: 184)) and the actual beliefs and opinions of addressees of law (the ruled) on values, interests and norms (2016: 183). In other words, Mac amlaigh argues that habermas develops a kind of approach to legitimacy which takes into account both a normative 1 In the following paper I make use of some arguments worked out in Chapter III in Karolina M. Cern, The Counterfactual Yardstick. Normativity, Self-Constitutionalisation and the Public Sphere, Frankfurt am Main 2014. 28 KAROLINA M. CERN LP LIX (1) yardstick for political and legal decision-making and the actual opinions of their address- ees. I do agree with Mac amlaigh on this point, however, in addition I would like to stress the understanding of legitimacy at the post-conventional level where, as habermas states, the main moral and legal concern is the justification of modern law, according to “the idea that legal norms are in principle open to criticism and in need of justification […] based on rational consensus” (habermas 1984: 260-261). this rational consensus enables such a transformation of modern law that makes it possible to meet the require- ment of the conformity of legal and moral principles and to recognise modern law as worthy of observance. Both sorts of principles meet one another in the concept of human rights. this concept, as habermas argues, articulates modern individual liberties, and the kind of validity specific to human rights reaches beyond the nation states (2002: 190). this inner link between the validity of moral and legal principles, focused on the concept of human rights, renders the habermasian “mixed-account” of the legitimacy of political and legal institutions open to interpretation in terms of cosmopolitan constitutionalism. Characteristically, in the cosmopolitan approach, as Seyla Benhabib states, “each individ- ual as a legal person [is] entitled to the protection of basic human rights in virtue of their moral personality and not on account of their citizenship or other membership status” (Benhabib 2016: 113). Cosmopolitanism as both a moral and legal stance delib- erately operates beyond the nation-state, nevertheless, the nation-state cannot necessarily be ignored, as the case below will show. Cosmopolitan constitutionalism, it may be stated, searches for a justification of the specific “beyond the state” validity of human rights that remain in compliance with the moral principles for which “each individual [is] entitled to moral respect and concern” (Benhabin 2016: 113). the structure and pre- suppositions of the “mixed account of legitimacy” may serve as a perfect means for exploring this issue. In order to render the idea of rational consensus viable in the legal and political do- mains, habermas works out the theory of communicative action and afterwards – during several exchanges with Robert alexy, Karl-otto appel and Robert Brandon – the dis- course theory. the latter serves as a necessary reflexive “device” for justifying legal norms through processes of reaching rational consensus (habermas 1999b: 100). I would like to note that in this paper, I am basically concerned with analyses based on the the- ory of discourse, and with their application to a democratic polity. the concept of dis- course, as proposed by habermas, is explicable in terms of the discourse principles (D) and the complementary “principle of universalization (U) as a bridging principle that makes agreement in moral argumentation possible” (1999b: 57), because it is oriented towards the impartiality of normative claims. Discourse rules are reflectively reconstruct- ed from the structures of communicative actions and, in this sense, they are universally valid, yet non-provable. the discursive argumentation presumes an “ideal speech situa- tion” as a critical yardstick for filtering any real discursive circumstances in order to enable the exchange and transformation of arguments in use and – crucially – reaching an agreement on the issue in question (habermas 1998: 418). Moreover, habermas mentions that his proposal may be regarded as a contractarian reflection provided at the post-conventional level. he does not develop the idea, but merely states that “consequently, a discursive or deliberative model replaces the contract LP LIX (1) Jürgen Habermas’s postconventional constractarianism as cosmopolitan… 29 model: the legal community constitutes itself not by way of a social contract but on the basis of a discursively achieved agreement” (1996: 137). he also redefines the concept of a contract so as to include a moral attitude. that is a fundamental step, to which I will return in the course of this paper. 2. Discourse Theory as a sort of contractarian thought at a post-conventional level the application of discourse rules to a democratic polity generates the co-originality thesis, that is, the co-originality of the rule of law and the principium of popular sover- eignty, from which follows that “in normative terms, there is no such thing as a consti- tutional state without democracy” (habermas 2002: 215). In short, the thesis states that the laws of law-making, obtained subsequent to the institutionalisation of discourse rules in the medium of law, do justice to the principle of democracy, and then, in the subse- quent procedural steps, become saturated in the normative matter with regard to the principle of argumentation (U). the latter comes into action afterwards, that is, in the procedures of saturating the legal code in normative content (habermas 1996: 144). In other words, the institutionalisation of discourse rules results in a code of law that may be understood as both the laws of law-making as well as basic rights. here basic rights mean constitutional interpretations of universalisable normative claims. the latter are called human rights. For this very reason habermas concludes that “human rights institutionalize the communicative conditions for a reasonable will-formation” (2001b: 117). the presumption is that only those rights that always also protect the democratic conditions for the saturation of these rights in the normative content may be appropri- ately called human rights. From this it follows that, firstly, these rights institutionalise the conditions for self-government. Secondly, however, these rights are supposed to ex- press norms whereby the impartiality of the judgments and decisions based on such rights is never overruled by the collective self-understanding or collective interests, from which stems the requirement to protect each citizen as free and equal to any other. thirdly, it may be stated that “moral principles, such as respect for human dignity and equality, do not dictate a specific constitutional content, but constrain the range of possible variations that would be compatible with the principles of respect for persons, their equality and dignity” (Benhabib 2016: 1192) In this sense, application of discourse rules to a demo- cratic polity maybe regarded as delivering a justification of cosmopolitan constitutional- ism. Because habermas is equally concerned with the rule of law, the principle of pop- 2 In this article Benhabib draws on the above presented relationship among universalisable normative claims – human-rights – basic rights, despite the fact she builds her argumentation on ideas from John Raw- ls and Robert alexy. thus, employing a different template, she admits that she argues in a similar vein to habermas, putting an emphasis on the right to self-government (that is, the principium of popular sovereign- ty) as the “condition for the possibility of the realisation of a democratic schedule of rights. Just as without the actualisation of human rights themselves, self-government cannot be meaningfully exercised, so too, with- out the right to self-government, human rights cannot be contextualised as justiciable
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