File #295: "SYMPOSIUM1.1_35-48_LEYDET_Habermas's Decentered View.PDF"
PDF Text
Text
Habermas's Decentered View of Society
and the Problem of Democratic
Legitimacy
DOMINIQUE LEYDET
Universite du Quebec
aMontreal
ABSTRACT: One ofthe most interesting features ofJiirgen Habermas 's latest work
on democracy is his attempt to acknowledge the problem ofsocial complexity while
remaining faithfol to the core idea of the Rousseauian conception of democratic
legitimacy: the idea that legitimacy is grounded on citizens' participation in processes
of opinion- and will-formation which ensure the reasonableness of collective
decisions. The challenge for Habermas is to show how it is possible to conciliate the
consequences ofsocial complexity with this understanding oflegitimacy and popular
sovereignty. Does Habermas's attempt succeed? This is the question examined in the
present article.
RESUME: L 'un des aspects les plus interessants du dernier ouvrage de Jiirgen
Habermas est sa tentative de reconnaitre Ie probleme de la complexite sociale tout en
demeurant ftdele a I'idee centrale de la conception rousseauiste de tegitimite
democratique. Cette derniere estfondee sur la participation du citoyen aux processus
de formation de I 'opinion publique et de la volonte populaire, qUi seule peut assurer
Ie caractere raisonnable des decisions collectives. Le deft que doit relever Habermas
consiste a demontrer la possibilite de concilier les consequences de la complexite
sociale avec cette comprehension de la tegitimite et de la souverainete populaire.
Peut-on considerer la tentative de Habermas comme un succes? Voila la question qui
sera abordee dans Ie present article.
The specific challenge of democratic legitimacy is the following: citizens of
a democratic polity have to see themselves both as equal members of the
sovereign, and as its subjects. This, at least, is roughly how Rousseau put the
problem and its difficulty can be made even more explicit if we formulate it
as the following question: Under which conditions should citizens consider
that their experience as subjects does not simply refute their self-conception
as co-sovereigns? Rousseau's answer is that the laws that I must obey as a
Symposium, 1,1 (1997),35-48
36 Symposium
subject are legitimate in so far as I, as a citizen, can see myself as their colegislator. This must be shown to hold even if! am opposed to those laws and
must be coerced into submission. To explain how this could be possible, how
coercion could be legitimate, is to spell out the conditions of democratic
legitimacy and this, of course, was the purpose of the Contrat social. More
specifically, Rousseau's theory of the general will grounds the legitimacy of
collective decisions on a process of will-formation which encompasses all
citizens and ensures that decisions express the common good and not the
simple aggregation of private preferences.
This view of legitimacy was rejected by those who developed, at the end
of the 18th century both in France and America, the institutions of
representative government. They generally justified their rejection of direct
democracy by referring to problems of complexity. Consider, for instance, the
argument made by Sieyes at the beginning of the French revolution:
democracy could not be right for France because of the size of its territory,
the number of its citizens and also because of the complexity of the new
commercial society. The division of labour was the key to its prosperity,
thought Sieyes, and this principle should also be applied at the political level.
Thus the need for an indirect, representative form of government.! After the
revolution, liberals such as Benjamin Constant and Guizot generally tried to
defuse the whole issue of popular sovereignty by basing legitimacy on the
constitution and the division of powers' doctrine.
Today, social complexity is much greater than it was at the time of the
French revolution and yet normative democratic theorists still think of
democratic legitimacy in essentially Rousseauian terms. This is the case of
deliberative theorists such as Seyla Benhabitr, Joshua Cohen3 and, to a certain
extent, Jurgen Habermas. What makes Habermas's work particularly
interesting is the fact that he explicitly acknowledges the problem of social
complexity and yet attempts to remain faithful to what he sees as the core idea
of Rousseau's conception: the idea that legitimacy is grounded on citizens'
participation in processes of opinion- and will-formation which ensure the
rational acceptability of collective decisions. The challenge for Habermas is
to show how it is possible to conciliate the consequences of social complexity
with this understanding of legitimacy and popular sovereignty. Does
Habermas's attempt succeed? This is the question I wish to examine in the
present paper.
In the first section, I briefly explain his understanding of social complexity
and his reformulation of the principle of popular sovereignty. I show how this
reformulation leads to what he calls a two-track conception of democracy. In
the second section, I examine some of the consequences of this two-track
view. I consider whether Habermas succeeds in securing the connection
between citizenry, deliberation and decision which is essential to a
Habermas's Decentered View 37
Rousseauian view. I also criticize his treatment ofiegislative assemblies as the
weak link in his conception of democracy, especially given his strict view of
deliberation. Finally, drawing on the recent work of James Bohman, Joshua
Cohen and Joel Rogers, I briefly indicate two avenues that may help us
confront some of the difficulties raised by Habermas's theory, though in the
end they cannot be thought to alleviate its main shortcomings.
1. Social Complexity and Popular Sovereignty
Habermas's conception of social complexity is basically twofold. Firstly, the
development of extensive state action in a multiplicity of distinct fields has
made the process of political decision-making more complex. This has led to
the growth of administrative power and bureaucracies which rarely opens up
to any significant public scrutiny. Still, one must recognize the necessity of
such agencies and accept that a radical attempt to democratize the exercise of
administrative power would be achieved at the cost of efficiency.
Secondly, modem societies are 'polycentric'; they are constituted by a
plurality of action systems, none of which can claim to be the' apex', 'center',
or 'structural core of society'. In this context, the political system appears as
''just one action system among others'>4 and cannot pretend to control directly
other subsystems such as the market. Therefore, Habermas calls on us to
adopt a 'decentered view' of society. This understanding of social complexity
is largely drawn from the works of systemic sociologists such as Niklas
Luhmann and Gunther Teubner. But, in contrast to these authors, Habermas
does not want to say that subsystems, like monads, are essentially closed and
independent from one another, for this would make it very difficult to even
consider the issue of societal integration and deal with problems that concern
society as a whole. Habermas thinks that the political system is the level at
which such issues can be expressed, discussed and dealt with. His argument
is twofold. Firstly, the political and legal systems cannot be considered as
closed unless one reduces the political system to its administrative
component, steered by the medium of power. According to Habermas, the
political system is also made up of what he calls "spheres of communicative
power" (e.g., parliamentary bodies), through which it remains open to
concerns that emerge from the lifeworld. Secondly, the political system is
internally connected to law, which functions as a language which can translate
ordinary communication from the public and private spheres into a form
which can be received by the specialized codes of subsystems, and vice
versa. S This internal connection with the law habilitates the political system
to deal with issues of societal integration.
Habermas's conception of the political system highlights, what he calls,
its asymmetrical character. On the one hand, it is an action system among
38 Symposium
others, specialized in the production of collectively binding decisions. On the
other hand, and because of its internal connection to the law, "politics is
responsible for problems that concern society as a whole" 6. Through the
exercise ofiegitimate lawmaking, the political system produces the norms that
can regulate, to a certain extent, other subsystems and take up problems of
coordination. But it cannot intervene at will in these subsystems, and remains
dependent upon the adequate performance of their specialized functions.
Habermas's view of social complexity leads him to substantially modify
the principle of popular sovereignty as understood in the republican tradition.
He cannot accept the republican view of popular sovereignty as embodied in
the people, understood as a kind of unified macro-subject. Neither can he
accept the idea that the citizenry, as a collective actor, constitutes the whole
of society as a political society, without the distinctions between private and
public spheres, between state and society, as well as between the various
subsystems that make up a complex society. So the first consequence of
Habermas's understanding of social complexity is that it compels him, against
the republican view, to reformulate procedurally the principle of popular
sovereignty. This means that on his view "the 'self of the self-organizing
legal community disappears in the subjectless forms of communication that
regulate the flow of discursive opinion- and will-formation in such a way that
their fallible results enjoy the presumption of being reasonable."? In other
words, popular sovereignty is not embodied in a particular assembly or
institution or conception of the people, but rather situated in democratic
procedures. It makes itself felt, adds Habermas, as "communicatively
generated power" which "springs from the interactions among legally
institutionalized will-formation and culturally mobilized publics".8
Yet Habermas does not wish to abandon the core idea of republicanism
which grounds democratic legitimacy on processes of political opinion- and
will-formation between citizens. In order to remain true to this core idea, he
needs to do two things. Firstly, he has to maintain a clear connection between
the discussions that citizens have in their homes and workplaces; and
ultimately, the decisions fmally made at the level of formal political
institutions, or, to use his vocabulary, between the processes of opinionformation that take place informally in the general public sphere and
processes of opinion- and will-formation leading to binding decisions. If the
connection appeared too tenuous, it would be difficult to speak of popular
sovereignty in the Rousseauian sense of the word. Of course, theories of
representative government argue that popular sovereignty expresses itself
essentially through elections, but this cannot be enough for Habermas. He has
to show that the power of citizens goes beyond the simple act of selecting
leaders. The core idea coming from the Republican tradition that Habermas
wants to keep is that legitimacy depends, at least in part, on the effective
Habermas's Decentered View 39
participation of citizens in the process of opinion- and will-formation.
Secondly, it would not be enough for Habermas to call for a responsive
government, which is a familiar theme of classical parliamentary and liberal
political theory. Again following Rousseau, he wants to give a normative
value to the processes of opinion- and will-formation. In other words, it would
not be enough to show that the debates that go on in civil society somehow
influence the decision-making of formal political institutions. He makes the
further claim that these processes contribute to the production of decisions
that have a presumption of rational acceptability. This is what ultimately
grounds the legitimacy of collective decisions and the obligation citizens have
to obey the law.
To better appreciate the distinctiveness of Habermas's view, we can
compare it very schematically to Rousseau's. Rousseau's conception of
legitimacy had basically two components: first, all citizens are to participate
directly in the formation of the common will; second, the process of willformation is structured in such a way as to form a general will that expresses
the common good and is not equivalent to the aggregation of particular wills.
As we have seen, Habermas's acknowledgement of social complexity leads
him to radically reformulate and weaken the first condition. What he wants
to keep is the core idea of the second condition. That is, processes of opinionand will-formation have to be such that they secure the rational acceptability
of collective decisions.
This leads Habermas to a two-track view of democracy. Because of social
complexity, it is not possible to imagine that deliberative politics can be
"inflated into a structure shaping the totality of society ... for the simple reason
that democratic procedure must be embedded in contexts it cannot itself
regulate"9. Hence, Habermas criticizes Joshua Cohen for considering the ideal
deliberative procedure as a model for all social institutions. For his part,
Habermas wants to restrict deliberative politics proper to particular
institutions, notably to the legislature (which has the function of adopting
laws) and also to the courts.
Indeed, he distinguishes between "decision-oriented deliberations, which
are regulated by democratic procedures, and the informal processes of
opinion-formation in the public sphere" 10. The parliamentary bodies are
structured predominantly as a context ofjustification. They rely "not only on
the administration's preparatory work and further processing but also on the
context ofdiscovery provided by a procedurally unregulated public sphere that
is borne by the general public of citizens"ll. Thus, the informal public sphere
is considered as a source of reasons, as more likely than formal political
institutions to be the arena where genuine criticisms of social reality are
formulated, new needs identified and potentially emancipatory projects
developed.
.
40 Symposium
In order to give some content to the idea of popular sovereignty,
Habermas asserts that, at least in circumstances where an important and
controversial issue takes center stage, the flow of communication ought not
to move from the center to the periphery (i.e., from formal political
institutions to the informal public spheres) but, on the contrary, from the
periphery to the center: "binding decisions, to be legitimate, must be steered
by communication flows that start at the periphery and pass through the
sluices of democratic and constitutional procedures situated at the entrance to
the parliamentary complex or the courts"12.
This presupposes that the periphery, the informal public spheres, have a
specific set of capabilities since Habermas wants to say that any result of the
democratic process will have a presumption of reasonableness. As he
recognizes himself, this "places a good part of the normative expectations
connected with deliberative politics on the peripheral networks of opinionformation" 13. So although his view appears to be more modest than that of
other theorists such as Seyla Benhabib or Joshua Cohen, Habermas still needs
to make a strong normative presupposition. This is problematic since, as he
admits himself, the general public sphere remains "vulnerable to the
repressive and exclusionary effects of unequally distributed social power,
structural violence, and systematically distorted communication"14. In fact, it
is easy to imagine how the supposedly spontaneous or autonomous informal
processes of opinion-formation might be manipulated by powerful interests.
Yet, it is central to his argument to be able to defend, as non utopian, the
normative conception of an autonomous public sphere. This explains his
account of civil society, which he describes as independent from both the state
and the market. It also explains his attempt to differentiate between interest
groups which represent an already established social power and actors who
'spontaneously' emerge from the public ls .
2. Consequences and Problems
In order to assess Habermas' s attempt at reconciling a project of radical
democracy, a project faithful to both Rousseau's conception of democratic
legitimacy and the problem of social complexity, we should first look at the
connection between citizens, deliberation and decision. Since the legitimacy
of collective decisions is to be grounded on the preceding processes of
opinion-and will- formation, it is essential to show a close connection
between citizens' deliberation and decision. In Rousseau's thought, the
connection is obvious, since the collective decision is produced by the process
of will-formation which the assembled citizens undertake. In the case of a
theory of representative government such as Sieyes's, deliberation and
decision are also closely tied, since it is the representatives elected by citizens
Habermas 's Decentered View 41
who deliberate together in the Assemb!ee nationale and produce decisions as
a result of their discussions. But, of course, in the case of Sieyes' s theory, the
role of citizens is limited to the election of representatives; as he points out:
the nation has no other voice than that of its representatives. 16 What Sieyes
gives us is much more a theory of parliamentary rather than popular
sovereignty.
The problem with Habermas's theory is that he wants to keep hold of the
principle of popular sovereignty in a Rousseauian sense while recognizing the
necessity of representation. This leads him to an awkward position: on the one
hand, he has to maintain a convincing connection between citizens,
deliberation and decision; yet, on the other hand, he argues for a two-track
conception of democracy which can only weaken the connection. In fact, the
language which Habermas uses to describe this relation is extremely vague
and metaphorical. He says that formal political institutions must remain
'porous' to the concerns, needs, demands, reasons which are expressed in the
general public sphere. He talks about 'communication flows' that come from
the periphery and pass through the 'sluices' of democratic and constitutional
procedures of parliamentary bodies and the courts, etc. But, nothing more
precise comes out of his analysis.
What seems to be lacking is a theory of representation which would clarify
the nature of the link between citizens and their representatives. If the concern
is to secure a tighter connection between them, perhaps one could consider
options such as recognizing citizens' rights to both give and recall instructions
to their representatives. But this would not do since Habermas wants
parliamentary bodies to be themselves deliberative, and this, of course,
implies that representatives, once elected, must be independent from their
constituents. The only dimension of representation with which Habermas can
play is its composition. Many theorists today make the point that an assembly
in which minorities and historically marginalized groups had a significant
presence would be more open to the concerns of their respective constituency
and more likely to take up the issues that affect them. 17 This is intuitively
plausible, although hypothetical, and Habermas does express sympathy for
this kind of position, although he limits himself to this vague statement: "the
selection of members of parliament should provide for the broadest spectrum
of interpretive perspectives, including the views and voices of marginal
groupS"IS.
To conclude these remarks on the connection between citizens,
deliberation and decision, let me make the following points: Habermas' s twotrack view of democracy leads him to differentiate between the informal
processes of opinion-formation that go on in the general public sphere (which
he describes as unrestricted but not geared towards decision-making) and the
regulated deliberation taking place inside formal deliberative assemblies and
$I• •
PC
42 Symposium
leading to binding decisions. Because of this distinction, the relation between
citizens and their representatives can only be that of pressure or influence. It
must remain indirect in order to preserve the deliberative nature of formal
assemblies. Thus, his account does not seem to go much further than classical
parliamentary theory. Obviously, Rousseau would not be too happy with this
and it is difficult to see how Habermas can claim that his theory goes beyond
liberalism. Rather than succeeding in conciliating a radical democratic project
and social complexity, he seems to get caught in the following dilemma:
either one gives substantial meaning to Rousseau's conception of democratic
legitimacy and one's picture of what a democratic regime should look like
will more closely resemble the republic of councils defended by Hannah
Arendt l9 (or Marx in his writings on the Paris Commune), but then one cannot
claim to accept the reality of social complexity; or one does accept it and is
forced to weaken the meaning of Rousseau's conception to such a degree as
to make it undistinguishable from a liberal view. 20
Habermas's dilemma stems from his attempt to show what his conception
of democratic legitimacy would amount to in practice, but one can suspect
that it is also implicitly present in the works of all those writers who defend
a deliberative model of democracy based on a Rousseauian conception of
legitimacy. The question that should be raised is whether the problem does
not ultimately rest with this conception of democratic legitimacy. Should we
not stop thinking oflegitimacy in Rousseauian terms and attempt to formulate
a convincing theory of representative government?
The need for such a revision of our conception of democratic legitimacy
becomes all the more obvious if we focus not only on the connection between
citizens, deliberation and decision but also consider the problems raised by
Habermas's attempt to maintain the idea that processes of opinion- and willformation must be such as to ensure the rea&onableness of collective
decisions. To do so, the conception of deliberation which informs his view of
these processes remains true to the rationalist tradition that goes from
Rousseau and Sieyes to Guizot and, in a paradoxical way, to Carl Schmitt (as
opposed to the more pragmatic Burkean view). Deliberation, for Habermas,
must be defmed as a public and rational discussion among equals. Now, this
requirement of rationality, which implies the readiness of all parties to
question the value of the interests they support and to discuss an issue on its
merits, remains extremely problematic.
To illustrate, consider his analysis of the legislature, which plays an
essential role in his conception of democracy. According to Habermas, the
democratic process must be seen as centered on the production of legitimate
laws through a deliberative process which ideally starts in the general public
sphere and then is taken up by formal deliberative assemblies, regulated by
democratic procedures. The work of these assemblies is to filter what comes
Habermas's Decentered View 43
up from the periphery and, through appropriate deliberation, produce a
binding decision which has a presumption of rational acceptability. For
Habermas, the role of these assemblies is to transform the concerns and
demands expressed in the informal public spheres of civil society in
'communicative power', which itself, once it is taken up by the administrative
sphere and implemented, becomes administrative power. The role of
deliberative assemblies is central, therefore, and yet they remain curiously
underthematized in his account, as if he was still too wedded to Rousseau to
want to give too much attention to representative assemblies.
But the issue is more serious than that. Habermas does not confront any
of the difficult problems concerning the very possibility of deliberation inside
representative assemblies, which have been raised since at least the beginning
of our century, with the onset of what was called the crisis of parliamentary
democracy. This crisis was thematized in very different ways in the works of,
among others, James Bryce, Moisei Ostrogorski, Harold Laski, and, ofcourse,
Carl Schmitt whose writings left a clear mark on Habermas's earlier
Structural Transformation afthe Public Sphere. 21 In his work, Schmitt argued
that the fundamental principles of parliamentary democracy which he derived
from his reading of Guizot - rational and public discussion - were
unrealizable given the changes which the political system had undergone.
Parliamentary institutions thus remained an empty shell, devoid of any
justification and credibility. 22 The main culprit for Schmitt was the
development of organized and bureaucratic political parties which had
radically changed the status of the individual representative, who had become
the mere delegate of his party, subject to its discipline. This evolution had
basically killed all possibility of real deliberation inside the assembly.
Parliament had become a simple showcase without any power since real
decision-making took place elsewhere in secret bargaining processes between
party representatives. Not only was there no serious deliberation taking place
in the legislature, but also no real decisions were ever made there. Since the
beginning of the century, there have been no significant changes to the
situation of parliamentary bodies. If anything, the situation described by
Schmitt and others has only become worse. The shift of power between
legislatures, on the one hand, and the executive and administrative powers, on
the other, has increased while the level of parliamentary debates certainly has
not increased.
A large part of Schmitt's radical criticism of parliamentary democracy
rests clearly on his strict view of what parliamentary deliberation should be
like. Thus it seems that there could be two ways in which to respond to his
criticism if, as Habermas obviously does, one wishes to affirm the basic
framework of liberal democracy. The first one was sketched by Hans Kelsen
in a short essay written in 1929 where he attempts to defend the institutions
Habermas's Decentered View 45
44 Symposium
23
of parliamentary democracy while calling for some refonns. In this essay,
Kelsen tries to show that we need not, indeed should not, want to cling to the
strict view of deliberation referred to by Schmitt. Instead, he proposes an
alternative conception of democratic discussion as a process of compromise
between different and often opposed interests. On this view, the interests that
make up heterogeneous societies are not expected to question their own value,
but to enter a process of negotiation in an institutional framework which
imposes upon them certain constraints and ensures a degree of fairness. It is
not necessary here to enter into a detailed discussion of the advantages and
disadvantages of such a view. My only point is to show that the strict rational
view of deliberation is neither self-evident nor without alternatives in our own
tradition.
The other way to respond to Schmitt's criticism would be to show what
kind of refonn is needed to make significant deliberation possible again in our
parliamentary institutions. For instance, one could discuss the advantages and
disadvantages of weakening party discipline or reinforcing the role of
parliamentary committees, etc. Failing that, we would expect a strong
condemnation of our parliamentary system and a call for radical changes,
which is how Habennas himself did conclude his reflections in The Structural
Transformation of the Public Sphere.
What is surprising in his latest work is that there is very little in it to help
us confront what I will call Schmitt's challenge, while the radical tone of his
earlier book is nowhere to be heard. In many ways, Between Facts and
Norms, and especially its account of the separation of powers, presents us
with what looks very much like classical parliamentary theory in its French
version, rewritten in a more obscure language. Habennas basically holds on
both to the strict, rationalist conception of deliberation and the general
framework of parliamentary democracy without showing how this conception
could be realized in contemporary conditions. Habennas might answer by
saying that these issues are practical rather than theoretical, and cannot be
tackled appropriately in a philosophical reflection, since they are the stuff of
political and constitutional engineering. Yet, problems that arise in practice
can make a theory irrelevant if it remains incapable of showing how they
could be tackled. Furthennore, if problems revealed in practice are important,
they should lead us to revise the theory to enable it to cope with them.
In recent writings, deliberative theorists such as James Bohman, Joshua
Cohen and Joel Rogers do try to propose institutional answers to some of the
issues raised in this paper, notably concerning the connection between
citizens, deliberation and decision, which I will examine briefly. In his recent
book: Public Deliberation. Pluralism, Complexity and Democracy, Bohman
criticizes Habennas for focusing too exclusively on the legislative process and
suggests that deliberative theorists should tum their attention to "the problem
of making administrative and bureaucratic structures more deliberative and
democratic"24. This would address the shift of power between legislatures and
administrations, a shift which does not seem about to be reversed, since it was
caused mainly by the sheer expansion of governmental activities and their
increased complexity. Doing this need not threaten the ability of
administrative agencies to deal effectively with the issues they are responsible
for. What would be required is that administrative institutions develop their
own kind of 'political public sphere', which could include "public hearings
and local meetings with those affected by problem-solving strategies"2s. As
Bohman notes, the problem with such procedures, which already exists in
some areas, is that, too often they become exercises in infonnation rather than
serious consultation. Here again, the problem is to ensure that they be truly
effective. Still, it does seem to me that this constitutes a necessary avenue for
all those interested in democratic refonn.
In their work, Joshua Cohen and Joel RogersZ6 develop a different, though·
compatible, strategy. The focus of their interest is the increased role that
secondary associations could play in democratic states. The idea here is to
identify and possibly expand the areas in which secondary associations, such
as unions, cooperative associations, corporations, coul~ participate directly
in administration. We already have such arrangements in institutions such as
workers' compensation boards. The idea is to develop this approach to deal
with issues like environmental regulations, etc. The challenge for Cohen and
Rogers is to specify the conditions that could make secondary associations
more deliberative so as to decrease the risk that they handle problems and
differences only through bargaining.
The point here is to extend deliberative processes, in which there is an
effective connection between deliberation and decision, to institutions of civil
society; or, rather, to ensure that citizens, through their participation in such
associations, have a direct input in deliberation and decision. This idea,
which, on the face of it is very appealing, must confront two difficulties: frrst,
how to make such associations truly representative of their members, and
second, how to ensure that they function in a deliberative way. This second
problem is not made easier by the fact that Cohen and Rogers defend a strict
conception of deliberation, which seems hard to reconcile with the reality of
sectional interests. Yet, I do think that the kind of associative view of
democracy that Cohen and Rogers defend could constitute another possible
way to give citizens the means to participate more directly in the process of
policy-fonnation and implementation while retaining the general framework
of representative government (though it should be clear that extending the
power of groups does not mean necessarily extending the power of individual
citizens).
46 Symposium
To what extent can these two strategies appear as a way to resolve
Habermas's difficulties? Do they help us give a significant meaning to
Rousseau's conception of democratic legitimacy while still acknowledging
the reality of social complexity? Yes, in the limited sense that these
suggestions show how we could increase possibilities for significant input on
the part of citizens in deliberative and decision-making processes. But none
of these strategies will in themselves significantly alter the fact that our formal
political system must remain essentially representative. Most decisions are not
made by citizens or their associations, but at best by officials whose authority
comes from having been elected. In other words, the input of citizens remains
mostly indirect. Recognizing this should lead us to focus more on the question
of representation itself and on the opening up of administrative agencies to
public scrutiny. But this means that if we recognize the reality of social
complexity and accept Habermas's decentered view of society, then it is not
possible at the same time to uphold a Rousseauian view of democratic
legitimacy. What this means is that once we do acknowledge social
complexity we are back into the waters of liberal theory and
constitutionalism, and that we have abandoned Rousseau's radical democratic
ideal.
Finally, these propositions do not help us confront the more fundamental
problems raised by the strict conception of deliberation which they also
presuppose. Yet, it is perhaps these very assumptions underlying this view
that we need to question most urgently.
Habermas's Decentered View 47
Notes
E.- J. Sieyes, "Observations par un depute a I' Assemblee nationale" (2
octobre 1789), Ecrits politiques, choix et presentation de R. Zapperi
(Paris: Editions des archives contemporaines, 1985), p. 262.
2 See Seyla Benhabib, "Toward a Deliberative Model of Democratic
Legitimacy", Democracy and Difference: Contesting the Boundaries of
the Political, ed. S. Benhabib (Princeton: Princeton University Press,
1996), pp. 67-95.
3 See Joshua Cohen, "Deliberation and Democratic Legitimacy", The Good
Polity, A. Hamlin and P. Pettit (London: Blackwell, 1989), pp. 17-34.
4 1iirgen Habermas, Between Facts and Norms. Contributions to a
Discourse Theory ofLaw and Democracy, tr. William Rehg (Cambridge,
Mass.: MIT Press, 1996), p. 302.
5 Ibid. p. 354.
6 Ibid. p. 385.
7 Ibid. p. 301.
8 Ibid. p. 301.
9 Ibid. p. 305.
10 Ibid. p. 307.
11 Ibid. p. 307.
12 Ibid. p. 356.
13 Ibid. p. 358.
14 Ibid. pp. 307f.
15 Ibid. pp. 355f.
16 E.-J. Sieyes, Archives parlementaires, 7 septembre 1789, p. 595: "Le
peuple ou la nation ne peut avoir qu'une voix, celIe de la legislature
nationale".
17 See, for instance: Anne Phillips, The Politics ofPresence (Oxford: Oxford
University Press), 1995; Melissa Williams, Voice, Trust and Memory
(Princeton, Princeton University Press, forthcoming 1998)
18 1iirgen Habermas, Between Facts and Norms, p. 183.
19 Hannah Arendt, On Revolution (Viking Press, 1963)
20 For a criticism, from a radical democratic or republican perspective, of
Habermas's acceptance of social complexity as defined by authors such
as Niklas Luhman, see James Bohman, "Complexity, Pluralism and the
Constitutional State: On Habermas's Faktizitiit und Geltung', Law and
Society Review, vol. 28, no. 4, 1994, pp. 897-930.
21 Jllrgen Habermas, The Structural Transformation ofthe Public Sphere, tr.
T. Burger and F. Lawrence (Cambridge, Mass.: MIT Press, 1989)
22 Carl Schmitt, The Crisis of Parliamentary Democracy, tr. E. Kennedy
(Cambridge, Mass.: MIT Press, 1985)
48 Symposium
23 Hans Kelsen, Wesen und Wert der Demokratie (Tiibingen: J.C.B. Mohr,
1929). French tr.: La democratie. Sa nature - sa valeur, tr. Ch.
Eisenmann (Paris: Ed. Economica, 1988)
24 James Bohman, Public Deliberation. Pluralism, Complexity, and
Democracy, (Cambridge, Mass., London, England: MIT Press, 1996), p.
182. If Bohman is basically right in his reading ofHabermas, it seems to
me that Habermas does open the door to this kind of solution in his own
account and would be far from opposing it. See Jiirgen Habermas,
Between Facts and Norms, p. 193.
25 James Bohman, Public Deliberation, p. 190.
26 Joshua Cohen and Joel Rogers, Associations and Democracy, ed. Erik
Olin Wright, (London, New York: Verso, 1995)
and the Problem of Democratic
Legitimacy
DOMINIQUE LEYDET
Universite du Quebec
aMontreal
ABSTRACT: One ofthe most interesting features ofJiirgen Habermas 's latest work
on democracy is his attempt to acknowledge the problem ofsocial complexity while
remaining faithfol to the core idea of the Rousseauian conception of democratic
legitimacy: the idea that legitimacy is grounded on citizens' participation in processes
of opinion- and will-formation which ensure the reasonableness of collective
decisions. The challenge for Habermas is to show how it is possible to conciliate the
consequences ofsocial complexity with this understanding oflegitimacy and popular
sovereignty. Does Habermas's attempt succeed? This is the question examined in the
present article.
RESUME: L 'un des aspects les plus interessants du dernier ouvrage de Jiirgen
Habermas est sa tentative de reconnaitre Ie probleme de la complexite sociale tout en
demeurant ftdele a I'idee centrale de la conception rousseauiste de tegitimite
democratique. Cette derniere estfondee sur la participation du citoyen aux processus
de formation de I 'opinion publique et de la volonte populaire, qUi seule peut assurer
Ie caractere raisonnable des decisions collectives. Le deft que doit relever Habermas
consiste a demontrer la possibilite de concilier les consequences de la complexite
sociale avec cette comprehension de la tegitimite et de la souverainete populaire.
Peut-on considerer la tentative de Habermas comme un succes? Voila la question qui
sera abordee dans Ie present article.
The specific challenge of democratic legitimacy is the following: citizens of
a democratic polity have to see themselves both as equal members of the
sovereign, and as its subjects. This, at least, is roughly how Rousseau put the
problem and its difficulty can be made even more explicit if we formulate it
as the following question: Under which conditions should citizens consider
that their experience as subjects does not simply refute their self-conception
as co-sovereigns? Rousseau's answer is that the laws that I must obey as a
Symposium, 1,1 (1997),35-48
36 Symposium
subject are legitimate in so far as I, as a citizen, can see myself as their colegislator. This must be shown to hold even if! am opposed to those laws and
must be coerced into submission. To explain how this could be possible, how
coercion could be legitimate, is to spell out the conditions of democratic
legitimacy and this, of course, was the purpose of the Contrat social. More
specifically, Rousseau's theory of the general will grounds the legitimacy of
collective decisions on a process of will-formation which encompasses all
citizens and ensures that decisions express the common good and not the
simple aggregation of private preferences.
This view of legitimacy was rejected by those who developed, at the end
of the 18th century both in France and America, the institutions of
representative government. They generally justified their rejection of direct
democracy by referring to problems of complexity. Consider, for instance, the
argument made by Sieyes at the beginning of the French revolution:
democracy could not be right for France because of the size of its territory,
the number of its citizens and also because of the complexity of the new
commercial society. The division of labour was the key to its prosperity,
thought Sieyes, and this principle should also be applied at the political level.
Thus the need for an indirect, representative form of government.! After the
revolution, liberals such as Benjamin Constant and Guizot generally tried to
defuse the whole issue of popular sovereignty by basing legitimacy on the
constitution and the division of powers' doctrine.
Today, social complexity is much greater than it was at the time of the
French revolution and yet normative democratic theorists still think of
democratic legitimacy in essentially Rousseauian terms. This is the case of
deliberative theorists such as Seyla Benhabitr, Joshua Cohen3 and, to a certain
extent, Jurgen Habermas. What makes Habermas's work particularly
interesting is the fact that he explicitly acknowledges the problem of social
complexity and yet attempts to remain faithful to what he sees as the core idea
of Rousseau's conception: the idea that legitimacy is grounded on citizens'
participation in processes of opinion- and will-formation which ensure the
rational acceptability of collective decisions. The challenge for Habermas is
to show how it is possible to conciliate the consequences of social complexity
with this understanding of legitimacy and popular sovereignty. Does
Habermas's attempt succeed? This is the question I wish to examine in the
present paper.
In the first section, I briefly explain his understanding of social complexity
and his reformulation of the principle of popular sovereignty. I show how this
reformulation leads to what he calls a two-track conception of democracy. In
the second section, I examine some of the consequences of this two-track
view. I consider whether Habermas succeeds in securing the connection
between citizenry, deliberation and decision which is essential to a
Habermas's Decentered View 37
Rousseauian view. I also criticize his treatment ofiegislative assemblies as the
weak link in his conception of democracy, especially given his strict view of
deliberation. Finally, drawing on the recent work of James Bohman, Joshua
Cohen and Joel Rogers, I briefly indicate two avenues that may help us
confront some of the difficulties raised by Habermas's theory, though in the
end they cannot be thought to alleviate its main shortcomings.
1. Social Complexity and Popular Sovereignty
Habermas's conception of social complexity is basically twofold. Firstly, the
development of extensive state action in a multiplicity of distinct fields has
made the process of political decision-making more complex. This has led to
the growth of administrative power and bureaucracies which rarely opens up
to any significant public scrutiny. Still, one must recognize the necessity of
such agencies and accept that a radical attempt to democratize the exercise of
administrative power would be achieved at the cost of efficiency.
Secondly, modem societies are 'polycentric'; they are constituted by a
plurality of action systems, none of which can claim to be the' apex', 'center',
or 'structural core of society'. In this context, the political system appears as
''just one action system among others'>4 and cannot pretend to control directly
other subsystems such as the market. Therefore, Habermas calls on us to
adopt a 'decentered view' of society. This understanding of social complexity
is largely drawn from the works of systemic sociologists such as Niklas
Luhmann and Gunther Teubner. But, in contrast to these authors, Habermas
does not want to say that subsystems, like monads, are essentially closed and
independent from one another, for this would make it very difficult to even
consider the issue of societal integration and deal with problems that concern
society as a whole. Habermas thinks that the political system is the level at
which such issues can be expressed, discussed and dealt with. His argument
is twofold. Firstly, the political and legal systems cannot be considered as
closed unless one reduces the political system to its administrative
component, steered by the medium of power. According to Habermas, the
political system is also made up of what he calls "spheres of communicative
power" (e.g., parliamentary bodies), through which it remains open to
concerns that emerge from the lifeworld. Secondly, the political system is
internally connected to law, which functions as a language which can translate
ordinary communication from the public and private spheres into a form
which can be received by the specialized codes of subsystems, and vice
versa. S This internal connection with the law habilitates the political system
to deal with issues of societal integration.
Habermas's conception of the political system highlights, what he calls,
its asymmetrical character. On the one hand, it is an action system among
38 Symposium
others, specialized in the production of collectively binding decisions. On the
other hand, and because of its internal connection to the law, "politics is
responsible for problems that concern society as a whole" 6. Through the
exercise ofiegitimate lawmaking, the political system produces the norms that
can regulate, to a certain extent, other subsystems and take up problems of
coordination. But it cannot intervene at will in these subsystems, and remains
dependent upon the adequate performance of their specialized functions.
Habermas's view of social complexity leads him to substantially modify
the principle of popular sovereignty as understood in the republican tradition.
He cannot accept the republican view of popular sovereignty as embodied in
the people, understood as a kind of unified macro-subject. Neither can he
accept the idea that the citizenry, as a collective actor, constitutes the whole
of society as a political society, without the distinctions between private and
public spheres, between state and society, as well as between the various
subsystems that make up a complex society. So the first consequence of
Habermas's understanding of social complexity is that it compels him, against
the republican view, to reformulate procedurally the principle of popular
sovereignty. This means that on his view "the 'self of the self-organizing
legal community disappears in the subjectless forms of communication that
regulate the flow of discursive opinion- and will-formation in such a way that
their fallible results enjoy the presumption of being reasonable."? In other
words, popular sovereignty is not embodied in a particular assembly or
institution or conception of the people, but rather situated in democratic
procedures. It makes itself felt, adds Habermas, as "communicatively
generated power" which "springs from the interactions among legally
institutionalized will-formation and culturally mobilized publics".8
Yet Habermas does not wish to abandon the core idea of republicanism
which grounds democratic legitimacy on processes of political opinion- and
will-formation between citizens. In order to remain true to this core idea, he
needs to do two things. Firstly, he has to maintain a clear connection between
the discussions that citizens have in their homes and workplaces; and
ultimately, the decisions fmally made at the level of formal political
institutions, or, to use his vocabulary, between the processes of opinionformation that take place informally in the general public sphere and
processes of opinion- and will-formation leading to binding decisions. If the
connection appeared too tenuous, it would be difficult to speak of popular
sovereignty in the Rousseauian sense of the word. Of course, theories of
representative government argue that popular sovereignty expresses itself
essentially through elections, but this cannot be enough for Habermas. He has
to show that the power of citizens goes beyond the simple act of selecting
leaders. The core idea coming from the Republican tradition that Habermas
wants to keep is that legitimacy depends, at least in part, on the effective
Habermas's Decentered View 39
participation of citizens in the process of opinion- and will-formation.
Secondly, it would not be enough for Habermas to call for a responsive
government, which is a familiar theme of classical parliamentary and liberal
political theory. Again following Rousseau, he wants to give a normative
value to the processes of opinion- and will-formation. In other words, it would
not be enough to show that the debates that go on in civil society somehow
influence the decision-making of formal political institutions. He makes the
further claim that these processes contribute to the production of decisions
that have a presumption of rational acceptability. This is what ultimately
grounds the legitimacy of collective decisions and the obligation citizens have
to obey the law.
To better appreciate the distinctiveness of Habermas's view, we can
compare it very schematically to Rousseau's. Rousseau's conception of
legitimacy had basically two components: first, all citizens are to participate
directly in the formation of the common will; second, the process of willformation is structured in such a way as to form a general will that expresses
the common good and is not equivalent to the aggregation of particular wills.
As we have seen, Habermas's acknowledgement of social complexity leads
him to radically reformulate and weaken the first condition. What he wants
to keep is the core idea of the second condition. That is, processes of opinionand will-formation have to be such that they secure the rational acceptability
of collective decisions.
This leads Habermas to a two-track view of democracy. Because of social
complexity, it is not possible to imagine that deliberative politics can be
"inflated into a structure shaping the totality of society ... for the simple reason
that democratic procedure must be embedded in contexts it cannot itself
regulate"9. Hence, Habermas criticizes Joshua Cohen for considering the ideal
deliberative procedure as a model for all social institutions. For his part,
Habermas wants to restrict deliberative politics proper to particular
institutions, notably to the legislature (which has the function of adopting
laws) and also to the courts.
Indeed, he distinguishes between "decision-oriented deliberations, which
are regulated by democratic procedures, and the informal processes of
opinion-formation in the public sphere" 10. The parliamentary bodies are
structured predominantly as a context ofjustification. They rely "not only on
the administration's preparatory work and further processing but also on the
context ofdiscovery provided by a procedurally unregulated public sphere that
is borne by the general public of citizens"ll. Thus, the informal public sphere
is considered as a source of reasons, as more likely than formal political
institutions to be the arena where genuine criticisms of social reality are
formulated, new needs identified and potentially emancipatory projects
developed.
.
40 Symposium
In order to give some content to the idea of popular sovereignty,
Habermas asserts that, at least in circumstances where an important and
controversial issue takes center stage, the flow of communication ought not
to move from the center to the periphery (i.e., from formal political
institutions to the informal public spheres) but, on the contrary, from the
periphery to the center: "binding decisions, to be legitimate, must be steered
by communication flows that start at the periphery and pass through the
sluices of democratic and constitutional procedures situated at the entrance to
the parliamentary complex or the courts"12.
This presupposes that the periphery, the informal public spheres, have a
specific set of capabilities since Habermas wants to say that any result of the
democratic process will have a presumption of reasonableness. As he
recognizes himself, this "places a good part of the normative expectations
connected with deliberative politics on the peripheral networks of opinionformation" 13. So although his view appears to be more modest than that of
other theorists such as Seyla Benhabib or Joshua Cohen, Habermas still needs
to make a strong normative presupposition. This is problematic since, as he
admits himself, the general public sphere remains "vulnerable to the
repressive and exclusionary effects of unequally distributed social power,
structural violence, and systematically distorted communication"14. In fact, it
is easy to imagine how the supposedly spontaneous or autonomous informal
processes of opinion-formation might be manipulated by powerful interests.
Yet, it is central to his argument to be able to defend, as non utopian, the
normative conception of an autonomous public sphere. This explains his
account of civil society, which he describes as independent from both the state
and the market. It also explains his attempt to differentiate between interest
groups which represent an already established social power and actors who
'spontaneously' emerge from the public ls .
2. Consequences and Problems
In order to assess Habermas' s attempt at reconciling a project of radical
democracy, a project faithful to both Rousseau's conception of democratic
legitimacy and the problem of social complexity, we should first look at the
connection between citizens, deliberation and decision. Since the legitimacy
of collective decisions is to be grounded on the preceding processes of
opinion-and will- formation, it is essential to show a close connection
between citizens' deliberation and decision. In Rousseau's thought, the
connection is obvious, since the collective decision is produced by the process
of will-formation which the assembled citizens undertake. In the case of a
theory of representative government such as Sieyes's, deliberation and
decision are also closely tied, since it is the representatives elected by citizens
Habermas 's Decentered View 41
who deliberate together in the Assemb!ee nationale and produce decisions as
a result of their discussions. But, of course, in the case of Sieyes' s theory, the
role of citizens is limited to the election of representatives; as he points out:
the nation has no other voice than that of its representatives. 16 What Sieyes
gives us is much more a theory of parliamentary rather than popular
sovereignty.
The problem with Habermas's theory is that he wants to keep hold of the
principle of popular sovereignty in a Rousseauian sense while recognizing the
necessity of representation. This leads him to an awkward position: on the one
hand, he has to maintain a convincing connection between citizens,
deliberation and decision; yet, on the other hand, he argues for a two-track
conception of democracy which can only weaken the connection. In fact, the
language which Habermas uses to describe this relation is extremely vague
and metaphorical. He says that formal political institutions must remain
'porous' to the concerns, needs, demands, reasons which are expressed in the
general public sphere. He talks about 'communication flows' that come from
the periphery and pass through the 'sluices' of democratic and constitutional
procedures of parliamentary bodies and the courts, etc. But, nothing more
precise comes out of his analysis.
What seems to be lacking is a theory of representation which would clarify
the nature of the link between citizens and their representatives. If the concern
is to secure a tighter connection between them, perhaps one could consider
options such as recognizing citizens' rights to both give and recall instructions
to their representatives. But this would not do since Habermas wants
parliamentary bodies to be themselves deliberative, and this, of course,
implies that representatives, once elected, must be independent from their
constituents. The only dimension of representation with which Habermas can
play is its composition. Many theorists today make the point that an assembly
in which minorities and historically marginalized groups had a significant
presence would be more open to the concerns of their respective constituency
and more likely to take up the issues that affect them. 17 This is intuitively
plausible, although hypothetical, and Habermas does express sympathy for
this kind of position, although he limits himself to this vague statement: "the
selection of members of parliament should provide for the broadest spectrum
of interpretive perspectives, including the views and voices of marginal
groupS"IS.
To conclude these remarks on the connection between citizens,
deliberation and decision, let me make the following points: Habermas' s twotrack view of democracy leads him to differentiate between the informal
processes of opinion-formation that go on in the general public sphere (which
he describes as unrestricted but not geared towards decision-making) and the
regulated deliberation taking place inside formal deliberative assemblies and
$I• •
PC
42 Symposium
leading to binding decisions. Because of this distinction, the relation between
citizens and their representatives can only be that of pressure or influence. It
must remain indirect in order to preserve the deliberative nature of formal
assemblies. Thus, his account does not seem to go much further than classical
parliamentary theory. Obviously, Rousseau would not be too happy with this
and it is difficult to see how Habermas can claim that his theory goes beyond
liberalism. Rather than succeeding in conciliating a radical democratic project
and social complexity, he seems to get caught in the following dilemma:
either one gives substantial meaning to Rousseau's conception of democratic
legitimacy and one's picture of what a democratic regime should look like
will more closely resemble the republic of councils defended by Hannah
Arendt l9 (or Marx in his writings on the Paris Commune), but then one cannot
claim to accept the reality of social complexity; or one does accept it and is
forced to weaken the meaning of Rousseau's conception to such a degree as
to make it undistinguishable from a liberal view. 20
Habermas's dilemma stems from his attempt to show what his conception
of democratic legitimacy would amount to in practice, but one can suspect
that it is also implicitly present in the works of all those writers who defend
a deliberative model of democracy based on a Rousseauian conception of
legitimacy. The question that should be raised is whether the problem does
not ultimately rest with this conception of democratic legitimacy. Should we
not stop thinking oflegitimacy in Rousseauian terms and attempt to formulate
a convincing theory of representative government?
The need for such a revision of our conception of democratic legitimacy
becomes all the more obvious if we focus not only on the connection between
citizens, deliberation and decision but also consider the problems raised by
Habermas's attempt to maintain the idea that processes of opinion- and willformation must be such as to ensure the rea&onableness of collective
decisions. To do so, the conception of deliberation which informs his view of
these processes remains true to the rationalist tradition that goes from
Rousseau and Sieyes to Guizot and, in a paradoxical way, to Carl Schmitt (as
opposed to the more pragmatic Burkean view). Deliberation, for Habermas,
must be defmed as a public and rational discussion among equals. Now, this
requirement of rationality, which implies the readiness of all parties to
question the value of the interests they support and to discuss an issue on its
merits, remains extremely problematic.
To illustrate, consider his analysis of the legislature, which plays an
essential role in his conception of democracy. According to Habermas, the
democratic process must be seen as centered on the production of legitimate
laws through a deliberative process which ideally starts in the general public
sphere and then is taken up by formal deliberative assemblies, regulated by
democratic procedures. The work of these assemblies is to filter what comes
Habermas's Decentered View 43
up from the periphery and, through appropriate deliberation, produce a
binding decision which has a presumption of rational acceptability. For
Habermas, the role of these assemblies is to transform the concerns and
demands expressed in the informal public spheres of civil society in
'communicative power', which itself, once it is taken up by the administrative
sphere and implemented, becomes administrative power. The role of
deliberative assemblies is central, therefore, and yet they remain curiously
underthematized in his account, as if he was still too wedded to Rousseau to
want to give too much attention to representative assemblies.
But the issue is more serious than that. Habermas does not confront any
of the difficult problems concerning the very possibility of deliberation inside
representative assemblies, which have been raised since at least the beginning
of our century, with the onset of what was called the crisis of parliamentary
democracy. This crisis was thematized in very different ways in the works of,
among others, James Bryce, Moisei Ostrogorski, Harold Laski, and, ofcourse,
Carl Schmitt whose writings left a clear mark on Habermas's earlier
Structural Transformation afthe Public Sphere. 21 In his work, Schmitt argued
that the fundamental principles of parliamentary democracy which he derived
from his reading of Guizot - rational and public discussion - were
unrealizable given the changes which the political system had undergone.
Parliamentary institutions thus remained an empty shell, devoid of any
justification and credibility. 22 The main culprit for Schmitt was the
development of organized and bureaucratic political parties which had
radically changed the status of the individual representative, who had become
the mere delegate of his party, subject to its discipline. This evolution had
basically killed all possibility of real deliberation inside the assembly.
Parliament had become a simple showcase without any power since real
decision-making took place elsewhere in secret bargaining processes between
party representatives. Not only was there no serious deliberation taking place
in the legislature, but also no real decisions were ever made there. Since the
beginning of the century, there have been no significant changes to the
situation of parliamentary bodies. If anything, the situation described by
Schmitt and others has only become worse. The shift of power between
legislatures, on the one hand, and the executive and administrative powers, on
the other, has increased while the level of parliamentary debates certainly has
not increased.
A large part of Schmitt's radical criticism of parliamentary democracy
rests clearly on his strict view of what parliamentary deliberation should be
like. Thus it seems that there could be two ways in which to respond to his
criticism if, as Habermas obviously does, one wishes to affirm the basic
framework of liberal democracy. The first one was sketched by Hans Kelsen
in a short essay written in 1929 where he attempts to defend the institutions
Habermas's Decentered View 45
44 Symposium
23
of parliamentary democracy while calling for some refonns. In this essay,
Kelsen tries to show that we need not, indeed should not, want to cling to the
strict view of deliberation referred to by Schmitt. Instead, he proposes an
alternative conception of democratic discussion as a process of compromise
between different and often opposed interests. On this view, the interests that
make up heterogeneous societies are not expected to question their own value,
but to enter a process of negotiation in an institutional framework which
imposes upon them certain constraints and ensures a degree of fairness. It is
not necessary here to enter into a detailed discussion of the advantages and
disadvantages of such a view. My only point is to show that the strict rational
view of deliberation is neither self-evident nor without alternatives in our own
tradition.
The other way to respond to Schmitt's criticism would be to show what
kind of refonn is needed to make significant deliberation possible again in our
parliamentary institutions. For instance, one could discuss the advantages and
disadvantages of weakening party discipline or reinforcing the role of
parliamentary committees, etc. Failing that, we would expect a strong
condemnation of our parliamentary system and a call for radical changes,
which is how Habennas himself did conclude his reflections in The Structural
Transformation of the Public Sphere.
What is surprising in his latest work is that there is very little in it to help
us confront what I will call Schmitt's challenge, while the radical tone of his
earlier book is nowhere to be heard. In many ways, Between Facts and
Norms, and especially its account of the separation of powers, presents us
with what looks very much like classical parliamentary theory in its French
version, rewritten in a more obscure language. Habennas basically holds on
both to the strict, rationalist conception of deliberation and the general
framework of parliamentary democracy without showing how this conception
could be realized in contemporary conditions. Habennas might answer by
saying that these issues are practical rather than theoretical, and cannot be
tackled appropriately in a philosophical reflection, since they are the stuff of
political and constitutional engineering. Yet, problems that arise in practice
can make a theory irrelevant if it remains incapable of showing how they
could be tackled. Furthennore, if problems revealed in practice are important,
they should lead us to revise the theory to enable it to cope with them.
In recent writings, deliberative theorists such as James Bohman, Joshua
Cohen and Joel Rogers do try to propose institutional answers to some of the
issues raised in this paper, notably concerning the connection between
citizens, deliberation and decision, which I will examine briefly. In his recent
book: Public Deliberation. Pluralism, Complexity and Democracy, Bohman
criticizes Habennas for focusing too exclusively on the legislative process and
suggests that deliberative theorists should tum their attention to "the problem
of making administrative and bureaucratic structures more deliberative and
democratic"24. This would address the shift of power between legislatures and
administrations, a shift which does not seem about to be reversed, since it was
caused mainly by the sheer expansion of governmental activities and their
increased complexity. Doing this need not threaten the ability of
administrative agencies to deal effectively with the issues they are responsible
for. What would be required is that administrative institutions develop their
own kind of 'political public sphere', which could include "public hearings
and local meetings with those affected by problem-solving strategies"2s. As
Bohman notes, the problem with such procedures, which already exists in
some areas, is that, too often they become exercises in infonnation rather than
serious consultation. Here again, the problem is to ensure that they be truly
effective. Still, it does seem to me that this constitutes a necessary avenue for
all those interested in democratic refonn.
In their work, Joshua Cohen and Joel RogersZ6 develop a different, though·
compatible, strategy. The focus of their interest is the increased role that
secondary associations could play in democratic states. The idea here is to
identify and possibly expand the areas in which secondary associations, such
as unions, cooperative associations, corporations, coul~ participate directly
in administration. We already have such arrangements in institutions such as
workers' compensation boards. The idea is to develop this approach to deal
with issues like environmental regulations, etc. The challenge for Cohen and
Rogers is to specify the conditions that could make secondary associations
more deliberative so as to decrease the risk that they handle problems and
differences only through bargaining.
The point here is to extend deliberative processes, in which there is an
effective connection between deliberation and decision, to institutions of civil
society; or, rather, to ensure that citizens, through their participation in such
associations, have a direct input in deliberation and decision. This idea,
which, on the face of it is very appealing, must confront two difficulties: frrst,
how to make such associations truly representative of their members, and
second, how to ensure that they function in a deliberative way. This second
problem is not made easier by the fact that Cohen and Rogers defend a strict
conception of deliberation, which seems hard to reconcile with the reality of
sectional interests. Yet, I do think that the kind of associative view of
democracy that Cohen and Rogers defend could constitute another possible
way to give citizens the means to participate more directly in the process of
policy-fonnation and implementation while retaining the general framework
of representative government (though it should be clear that extending the
power of groups does not mean necessarily extending the power of individual
citizens).
46 Symposium
To what extent can these two strategies appear as a way to resolve
Habermas's difficulties? Do they help us give a significant meaning to
Rousseau's conception of democratic legitimacy while still acknowledging
the reality of social complexity? Yes, in the limited sense that these
suggestions show how we could increase possibilities for significant input on
the part of citizens in deliberative and decision-making processes. But none
of these strategies will in themselves significantly alter the fact that our formal
political system must remain essentially representative. Most decisions are not
made by citizens or their associations, but at best by officials whose authority
comes from having been elected. In other words, the input of citizens remains
mostly indirect. Recognizing this should lead us to focus more on the question
of representation itself and on the opening up of administrative agencies to
public scrutiny. But this means that if we recognize the reality of social
complexity and accept Habermas's decentered view of society, then it is not
possible at the same time to uphold a Rousseauian view of democratic
legitimacy. What this means is that once we do acknowledge social
complexity we are back into the waters of liberal theory and
constitutionalism, and that we have abandoned Rousseau's radical democratic
ideal.
Finally, these propositions do not help us confront the more fundamental
problems raised by the strict conception of deliberation which they also
presuppose. Yet, it is perhaps these very assumptions underlying this view
that we need to question most urgently.
Habermas's Decentered View 47
Notes
E.- J. Sieyes, "Observations par un depute a I' Assemblee nationale" (2
octobre 1789), Ecrits politiques, choix et presentation de R. Zapperi
(Paris: Editions des archives contemporaines, 1985), p. 262.
2 See Seyla Benhabib, "Toward a Deliberative Model of Democratic
Legitimacy", Democracy and Difference: Contesting the Boundaries of
the Political, ed. S. Benhabib (Princeton: Princeton University Press,
1996), pp. 67-95.
3 See Joshua Cohen, "Deliberation and Democratic Legitimacy", The Good
Polity, A. Hamlin and P. Pettit (London: Blackwell, 1989), pp. 17-34.
4 1iirgen Habermas, Between Facts and Norms. Contributions to a
Discourse Theory ofLaw and Democracy, tr. William Rehg (Cambridge,
Mass.: MIT Press, 1996), p. 302.
5 Ibid. p. 354.
6 Ibid. p. 385.
7 Ibid. p. 301.
8 Ibid. p. 301.
9 Ibid. p. 305.
10 Ibid. p. 307.
11 Ibid. p. 307.
12 Ibid. p. 356.
13 Ibid. p. 358.
14 Ibid. pp. 307f.
15 Ibid. pp. 355f.
16 E.-J. Sieyes, Archives parlementaires, 7 septembre 1789, p. 595: "Le
peuple ou la nation ne peut avoir qu'une voix, celIe de la legislature
nationale".
17 See, for instance: Anne Phillips, The Politics ofPresence (Oxford: Oxford
University Press), 1995; Melissa Williams, Voice, Trust and Memory
(Princeton, Princeton University Press, forthcoming 1998)
18 1iirgen Habermas, Between Facts and Norms, p. 183.
19 Hannah Arendt, On Revolution (Viking Press, 1963)
20 For a criticism, from a radical democratic or republican perspective, of
Habermas's acceptance of social complexity as defined by authors such
as Niklas Luhman, see James Bohman, "Complexity, Pluralism and the
Constitutional State: On Habermas's Faktizitiit und Geltung', Law and
Society Review, vol. 28, no. 4, 1994, pp. 897-930.
21 Jllrgen Habermas, The Structural Transformation ofthe Public Sphere, tr.
T. Burger and F. Lawrence (Cambridge, Mass.: MIT Press, 1989)
22 Carl Schmitt, The Crisis of Parliamentary Democracy, tr. E. Kennedy
(Cambridge, Mass.: MIT Press, 1985)
48 Symposium
23 Hans Kelsen, Wesen und Wert der Demokratie (Tiibingen: J.C.B. Mohr,
1929). French tr.: La democratie. Sa nature - sa valeur, tr. Ch.
Eisenmann (Paris: Ed. Economica, 1988)
24 James Bohman, Public Deliberation. Pluralism, Complexity, and
Democracy, (Cambridge, Mass., London, England: MIT Press, 1996), p.
182. If Bohman is basically right in his reading ofHabermas, it seems to
me that Habermas does open the door to this kind of solution in his own
account and would be far from opposing it. See Jiirgen Habermas,
Between Facts and Norms, p. 193.
25 James Bohman, Public Deliberation, p. 190.
26 Joshua Cohen and Joel Rogers, Associations and Democracy, ed. Erik
Olin Wright, (London, New York: Verso, 1995)