Democratic Constitutionalism and the Problem of Self-grounding in the Rawls-Habermas Debate

Abstract

Commenting on the recent revival of interest in his 1995 exchange with John Rawls, Jürgen Habermas has made clear that he never attempted to mount a systematic critical comparison of his legal and political philosophy with that of Rawls. For one, he could not assume Rawls’s familiarity with his discourse theory of law and democracy. It is little surprise, then, that the exchange failed to establish a basis upon which to adjudicate the relative merits of their approaches, and debate continues about what, if anything, is fundamentally in dispute. That being said, Rawls’s reply to Habermas is notable for the way he attempts to engage with Habermas’s political philosophy and, moreover, for containing his most well developed account of the place of political liberalism within a tradition of democratic constitutionalism. Rawls’s reply does much to call into question Habermas’s categorization of him as a liberal as opposed to a civic republican. Viewed in this light, there are reasons to think that it is in discussing the civic republicanism of legal theorists such as Frank Michelman, rather than in his debate with Rawls himself, that Habermas inadvertently offers his most penetrating analysis and critique of Rawls’s political liberalism. The real debate, we might conclude, is not between liberal and republican models of democratic constitutionalism, but between ethical and proceduralist branches of republicanism. My aim in this paper is to establish the points of similarity and divergence in the models of constitutional democracy developed by Rawls and Habermas. Both seek to develop models of democratic constitutionalism as ongoing historical projects. Moreover, it is common to their constructivist and reconstructivist approaches that these developing practices of collective self-government are seen as denied appeal to external normative foundations. They must rather generate their constitutive principles from within themselves. Such an analysis lends support to a revisionist line of analysis focused on the Hegelian as well as Kantian elements of their respective approaches. Indeed, it becomes evident that it is Rawls who is the more orthodox Hegelian. The aspiration to a freestanding conception of justice notwithstanding, for Rawls Kantian constitutionalism depends upon an anchoring in the substance of ethical life. In Habermas’s proceduralist paradigm, by contrast, in a move that pays deference to Hegelian methodology at the same time as it departs from Hegelian conclusions, the substance of ethical life is both absorbed into and transcended by the internally related procedures of law and democracy. The importance of this analysis lies not only in reframing our understanding of the relationship between the two most influential figures in contemporary political philosophy but also in drawing attention to seldom acknowledged presuppositions and limitations of Rawls’s approach.