The Constitutional Protection of Rights in Dworkin 's and Habermas' Theories of Democracy
The Constitutional Protection of Rights in
Dworkin's and Habermas' Theories of Democracy
Cornelia Schneider
'Elections, open, free and fair, are the essence of democracy,
the inescapable sine qua non. Governments produced by
elections may be inejJicien t, corrupt, shortsighted,
irresponsible, dominated by special interests, and incapable
of adopting policies demanded by the public good. These
qualities make such governments undesirable but they do not
make them undemocratic. Democracy is one public virtue, not
the only one. '
Samuel P. Huntington 1
The concept of democracy is generally understood to mean, first and
foremost, the 'rule by the people'. Beyond this fairly uncontroversial basic
definition, however, different conceptions of democracy abound.
Huntington' s school of thought, for example, proposes a minimalist
procedural understanding of democracy. That understanding identifies
democracy exclusively with a system established through majority voting,
and the struggle for democracy with the establishment of rules of electoral
procedure. It is contended that this conception is fundamentally flawed, as
democracy means much more than rule of the many. In this paper, l propose
an alternative conception of democracy based on the constitutional protection
of rights. By this l mean that truly democratic systems must have established
individuallegal rights that the dominant legislature - the majority - does not
have the power to override or compromise. A constitution in this sense is not
necessarily a written instrument, but sorne mechanism that grants extra
protection to certain fundamental rights.
The problem with this conception of democracy is that many
commentators think it 'undemocratic'. They continue to regard democracy
as being the 'rule by the people' in the sense of rule of the majority. Thus,
1 S. P. Huntington, The Third Wave - Democratisation
in the tate Twentieth
Century (Oklahoma, 1991).
UCL Jurisl2.rudence Review 2000
in their view, a constitution that protects individual rights runs counter to the
most fundamental democratic assumption of popular sovereignty. It limits
the power of the majority to implement the majority's will. A legislator
passes laws that reflect the will of the people. Yet a constitutional court can
often declare those laws unconstitutional and thus expressly counteract the
will of the people. Rights and popular sovereignty seem in irreconcilable
competition, because maintaining the priority of rights often requires the
setting aside of widely supported policies (e.g. the right not to be
discriminated against because of sexual orientation might upset the feelings
of a majority which believes that homosexuality is indecent).
The fact that most Western states have nonetheless adopted a
constitutional structure has been recognised as a flaw in their democratic
attire, but accepted as the lesser of two evils. The constitutional protection of
an individual's autonomy and dignity against coercion has been regarded
preferable to a 'tyranny of the majority', and this approach is reflected in a
liberal constitutional tradition deeply rooted in Western history? Any
acknowledgement that this prioritisation of rights might sacrifice sorne
aspects of so-called 'democracy', has been accompanied by the defiant
observation that 'democracy is not everything'.3 Along with Huntington,
many commentators are thus of the opinion that 'liberal constitutionalism',
so to speak, is only another public virtue that has no connection to
democracy. On the contrary, they regard it as subversive of what they
believe to be 'democracy'. It is only recently that academics have picked up
on the thought that constitutionalism and democracy, or its manifestations,
rights and popular sovereignty, are not really contradictory concepts. What is
more, they could be called complementary and as such both constitutive of
true democracy.
l will explore this thought with reference to the writings of two
academics who have established themselves at the forefront of constitutional
democratic thinking, Ronald Dworkin and Jürgen Habermas. The
constitutional protection of rights is a theme common to their works,
although they adopt slightly different approaches. Dworkin has so far
dismissed Habermas' theory.4 In this paper, largue that there are more
affinities between the two theories than Dworkin would possibly like to
acknowledge. l outline Dworkin's and Habermas' respective democratic
2 F. Zakaria, 'The Rise of Illibera1 Democracy', 76 (1997) Foreign Affairs 6, 22, p.
3 R. Dworkin, 'Equality, Democracy, and Constitution', (1990) 28 Alberta Law
Review 2, 324, p. 326.
4 R. Dworkin, 'Constitutiona1ism and Democracy', (1995) 3 European Journal of
Philosophy l, 2, p. 8.
The Constitutional Protection of Rights in Dworkin 's and Habermas' Theories of Democracy
theories in turn, pointing out similarities where appropriate. This will serve
the purpose of identifying a core constitutional theory that is common to
both writers. On the issue of protection of rights, however, l find Habermas'
approach more convincing. By sharing certain constitutive elements with
Dworkin's constitutional model, whilst overcoming certain flawed aspects of
Dworkin's the ory, Habermas has managed to offer a persuasive redefinition
of the concept of democracy at the beginning of the 21 st century.
A Constitutional Conception of Democracy
Democracy has often been misunderstood and misinterpreted. In its simple st
form, it is taken to be 'government by the people'. One must be care fuI,
though, not to equate this with majoritarianism. Democracy does not mean
mere majority rule, but legitimate majority rule. This entails that the will of
the majority must be subject to the constraints of sorne kind of constitutional
structure which cannot be changed. The argument that constitutionalism
subverts democracy through limiting the democratic right of the majority to
pass the laws it wants is thus based on a false understanding of what
democracy means, and must be rejected. The most fundamental aim of
genuine democracy is not to pass laws in accordance with certain procedural
requirements, but to treat 'all members of the community, as individuals,
with equal concern and respect'.5 As such, no arrangement that serves to
further this fundamental aim - such as the protection of rights by a
constitution, or the interpretation of the constitution through an unelected
judiciary - can be classed as counter-democratic per se. On the contrary,
many constitutional provisions that seem aimed at limiting democracy,
actually enhance it. Such an approach reflects that of Ronald Dworkin and it
is his the ory which will be advanced as an aspiring model of true democracy.
It is a the ory of great importance because it combines the fundamental
aspects of two theories of democracy, liberalism and civic republicanism,
that were formerly seen to be in fierce and mutually exclusive competition.
On the standard reading of classical moderns, liberal theorists such as John
Locke have been pitted in this debate against republicans such as Jean-
Jacques Rousseau. LiberaIs regard the protection of individual rights against
the encroachment of the sovereign will as paramount. Thus, personal rights
that guarantee individuals the freedom to pur sue their own goals and
happiness are more important than democratic process. Civic republicans, on
the other hand, pre fer the legitimacy accorded to their political system by
fully acting in accordance with the will of the majority. On this view, human
freedom has its summit not in the pursuit of private preferences but in self-
5 R. Dworkin, Freedom 's Law (Cambridge, MA, 1996), p. 17.
UCL Jurisl2.rudence Review 2000
governance through political participation. Accordingly, liberal views tend
to define legitimate government in relation to the protection of individual
liberty, often specified in terms of human rights, whereas republican views
tend to ground the legitimacy of laws and policies in notions of popular
sovereignty. Dworkin's constitutional conception of democracy builds a
bridge between these two principles. To understand why his constitutional
model is preferable to either straight-forward liberalism or civic
republicanism requires us to appreciate its foundations.
Government of the people, by the people, for the people
Dworkin is generally in agreement with the definition of democracy as
'government by the people', but rejects the majoritarian reading that has
been given to it. His most fundamental premise is that democracy is
government by the people as equals. It is from this starting point that he
develops his constitutional conception of democracy. He has adopted a
tripartite vision of democracy that, to a certain extent, reminds of Abraham
Lincoln's definition of democracy as 'government of the people, by the
people, for the people'6 (although Dworkin places greater emphasis on the
protection of rights). Whereas Lincoln saw governance in a democracy as
stemming from the people (of), as being practised by the people, and as
being practised in the people's interests (for), Dworkin regards it as essential
that citizens be given a part in a collective community which governs, a
stake in it, and independence from it. 7 The two concepts are not wholly
analogous, but affinities can certainly be detected.
Dworkin's principle of participation corresponds to Lincoln's
government by the people. It is, so to say, the starting point of a democratic
system as such, because it demands that every citizen be given an equal vote,
and thus an equal role to play in the establishment and development of the
democratic framework. It is the principle of participation which makes
possible the setting-up of the most fundamental institutional structures of a
democracy: it requires the provision of a system of univers al suffrage, and
structures of representation that make political offices open in principle to
everyone. 8 At this point, an important argument can be advanced in favour
of constitutionalism, and against basic majoritarianism. Elementary
democratic structures, such as a system of univers al suffrage, are brought
about by structural rules that allocate the right to vote, outline electoral
guidelines, assign powers to the designated players, in short: which
determine the set-up of a democratic system. These structural provisions
6 A. Lincoln, Gettysburg Address (Gettysburg National Cemetery, 19 Nov. 1863).
7 Dworkin, fn. 3 above, p. 337; fn. 5 above, p. 24.
8 Dworkin, fn. 3 above, p. 338; fn. 5 above, p. 24.
The Constitutional Protection of Rights in Dworkin 's and Habermas' Theories of Democracy
must be constitutional, i.e. immune to change, because if they were ever
changed, a political system would no longer be a democracy. If a black
majority in South Africa decided to change the electoral system so as to deny
the white South African population a vote in the next elections (which,
under a strict majoritarian reading, they would be allowed to do), South
Africa would cease to be democratic under even the crudest definition of
democracy. Even though their system would initially be democratic on the
majoritarian conception, majority proportions are liable to change at any
point in the future, e.g., if the majority of the black population decided to
emigrate to Mozambique, or if South Africa annexed a territory with a white
majority population exceeding the original South African black population.
In such a case, the 'rule by the people' could no longer be guaranteed under
the altered electoral rules. It follows that even majoritarians must, to a
limited extent, support a political system that provides safeguards for the
most fundamental structures of democracy. The best way to achieve this
result is, as hinted at above, the implementation of a constitution that
protects the most elementary structures of democracy through what Dworkin
calls 'structural constitutional' or 'enabling' provisions. 9
Going further than this limited majoritarian view, however, Dworkin
suggests that the principle of participation not only explains the democratic
necessity of 'structural constitutional provisions', but also of what he calls
'disabling constitutional provisions' which prote ct political liberties, such as
freedom of speech, freedom of assembly, etc. In a system where
constitutional provisions accord individuals the right to speak freely, a ruling
majority cannot silence an individual who voices his unfavourable opinion
about a system's regime. They are thus 'disabled' from exercising their will
to stop the individual from delivering his speech. Majoritarians regard such
disabling rules as fundamentally undemocratic, as they curtail the power of
(with the help of 'enabling rules') elected officiaIs. Dworkin counters this
view, once again, with an argument based on the fundamental premise of
equality. If everyone is to be afforded the same genuine opportunity to make
a difference to their political system (by casting their vote, or having their
say in a decision), then they must be allowed political liberties. When
somebody wants to make an informed choice, they need access to the same
information that others have. When somebody owns important information,
they must have the right to share it with others. Citizens who participate in
the democratic process must have individual rights that help them to
participate as best as they cano Otherwise, the outcome of elections will not
really reflect the will of the majority, but the will of individuals that were
9 Dworkin, fn. 4 above, p. 2.
UCL Jurisl2.rudence Review 2000
able to most widely disseminate their views - at the expense of other views
that might have yielded more popular support had they been allowed to
make themselves heard. According to Dworkin's theory, disabling provisions
do not really 'disable' democracy, rather they enhance it (it could thus be
argued that 'disabling' provisions is a misleading term, and that they would
best be referred to as a sub-form of 'structural' provisions, or maybe 'less
expressly' structural provisions).
At this point it is important to alert the reader to the similarity
between the principle of participation and Jürgen Habermas' theory of
communicative action. It would at this stage go too far to explain Habermas'
model in detail. However, the reader needs to keep in mind certain affinities
between the two models, in order to be able to appreciate Habermas'
contributions to, and indeed furtherance of, Dworkin's theory at a later
point. Dworkin sees political liberties as a prerequisite to genuine
democracy, a constitutional structure as the best way to protect them.
Citizens are to be encouraged to share their information, to engage in
discussion, so that the democratic process will always be democratic, and
equal. Habermas puts yet more emphasis on discourse than Dworkin. The
analogous the me in his the ory is that the protection of rights, that help
citizens to develop more fully, to build their individual opinions, to engage
in discourse, are necessary for the establishment of true democracy. This will
be discussed more fully below.
To return to Dworkin's tripartite vision of democracy, it can be
observed that his second principle of stake roughly equates to Lincoln's
perception of government for the people. Lincoln meant that legitimate
government should be practised in the interest of the people. Democracy is
more than a mere system of collective decision-making, but is there for a
purpose. Similarly, Dworkin insists that a society must not merely
implement the will of the majority, but must display concern for the needs
and prospects of its minorities. An individual cannot be a member of a
collective unit as envisaged by the first principle of participation, unless he is
treated as a member by others; this, in turn, involves that others 'treat the
consequences of any collective decision for [the individual's] life as equally
significant a reason for or against that decision as are comparable
consequences for the life of anyone else' .10 For Dworkin, the princip le of
stake makes possible a communal conception of democracy - which is
preferable to a merely statistical conception.
Under a statistical conception of democracy, 'the people' are looked
upon as a mere figure of speech; a result or decision brought about by 'the
people' is merely due to the coincidence of many individual actions.
10 Dworkin, fn. 5 above, p. 25.
The Constitutional Protection of Rights in Dworkin 's and Habermas' Theories of Democracy
Dworkin refers to the example of a foreign exchange market. We can regard
it as a collective entity that has effects on the currency market ('the foreign
exchange market drove up the price of the yen'). At the same time we know
that the foreign exchange market is no actual entity as such. Its effects are
not due to the action of one single body, but to the coincidence of many
individual actions ('the combined effects of the very large number of
individual currency transactions was responsible for the higher price of the
yen').ll A statistical conception of democracy is majoritarian, insisting, as
Dworkin says, that political decisions be made 'in accordance with sorne
function of the votes or decisions or wishes of the individual citizens one by
one' . 12 Its emphasis is on procedure. It should have become apparent that on
a statistical conception of democracy only expressly structural provisions -
those that determine the procedure and organisation of a democratic system -
can be regarded as democratic. As such, a statistical conception cannot
reconcile the supposed conflict between democracy and a constitution that
protects individual rights.
This is why Dworkin contends that a communal conception of
democracy offers a better account of democracy. It regards 'the people' not
as a more or less arbitrary amalgamation of individual actions, but as a
group that is able to take political decisions as a distinct entity. Dworkin here
borrows from John Rawls in order to explain: if a statistical conception of
democracy could be likened to the foreign exchange market, then a
communal conception can best be elaborated by drawing an analogy to an
orchestra. Individual musicians are unable to play a symphony by
themselves, they have to perform together. Yet it is not enough that they
each play their own piece of music as they deem appropriate, but that they
play as an orchestra, that they feel as part of a group where everyone is
equally important. 13 Dworkin argues that his communal conception bears
similarities to Rousseau's notion of a 'volonté générale', because in both
models political decisions are taken by a distinct entity - the people as such -
rather than any set of individuals one by one. 14 It is interesting that Dworkin
should adopt Rousseau out of all people to have been the inspirational force
behind the communal conception. After all, Rousseau is generally regarded
as a republican with little sympathy for liberal concerns. l think that
Dworkin emphasises the supposed affinities between his own and Rousseau's
11 Dworkin, fn. 3 above, p. 329.
12 Dworkin, fn. 3 above, p. 330.
13 J. Raw1s, A Theory of Justice (Cambridge, MA, 1971), pp. 523-524.
14 Dworkin, fn. 3 above, p. 330; fn. 4 above, p. 4; fn. 5 above, p. 20; e.g. 1.-1.
Rousseau, The Social Contract, edited by R. Grims1ey (Oxford, 1972).
UCL Jurisl2.rudence Review 2000
conception of democracy in order to give even more weight to his thesis that
democracy and constitutionalism are not irreconcilable - even on a
Rousseauean view. Once again, his argument focuses on the way we should
conceive of structural provisions. On a communal conception of democracy,
structural provisions should not be limited to matters of procedure and
organisation as is the case on a statistical conception. The principle of stake
demands that individuals, united in a group, display the same concern for
minorities in the group that they would for themselves. Positive liberties that
help individuals to adopt or develop an attitude in line with the principle of
stake, and that help a group to main tain a common set of ideals, thus
enhance democracy rather than disable it. Constraints on majority decisions
in order to further those liberties would not be undemocratic. On the
contrary, a system in which a majority is not restrained from discriminating
against minority members oftheir community, is undemocratic. 15
Dworkin's principle of independence is the last element of his vision
of democracy. To a limited extent, similarities can be detected to Lincoln's
notion of government of the people. Lincoln merely meant that political
power originates in the people; a democratic government is legitimated by
this genesis. Dworkin's principle, on the other hand, means that for there to
be a democracy, we must have a community of 'independent moral agents' -
i.e. a community's government is prohibited from dictating what its
members think about matters of political or moral or ethical judgment,
whilst it has an obligation to encourage its members to form their own views
on these matters through their own reflective and individual conviction. 16 At
first sight, the principle of independence seems like just another principle
that serves to explain the superiority of a communal, and constitutional,
conception of democracy. Naturally, it provides even better reasons than the
first two principles mentioned above, for treating political liberties as
themselves structural to democracy. Sorne sort of constitutional guarantees
of freedom of speech, association and religion (and following from that,
liberal tolerance of unpopular sexual and personal morality) become
conditions for true democracy. The protection of these liberties is necessary
to allow and encourage individuals to take responsibility for their own
personalities and convictions, which, in turn, is essential to arrive at an
efficient democratic structure. 17 Looked at more closely, however, the
similarity of the principle of independence with Lincoln' s government of the
people becomes more obvious.
15 Dworkin, fn. 3 above, p. 339.
16 Dworkin, fn. 5 above, p. 26.
17 Dworkin, fn. 3 above, p. 341.
The Constitutional Protection of Rights in Dworkin 's and Habermas' Theories of Democracy
Essentially, the principle of independence states nothing but the
already familiar claim that for political power to be legitimate, it must
originate from the people. The argument proceeds along those lines: for a
democratic system to be legitimate, the people must be able to regard
themselves as the authors of decisions taken by the system. In order to be
able to regard themselves as the authors, they must identify with the political
community - understand themselves as its 'moral agents'. But they can
understand themselves as moral agents only if they preserve independent
judgment about the values that will govern their own individual lives and
about the quality of the community' s decisions. (And, of course, personal
liberties are essential to make this independence possible.)18 A member of a
group can best identify with the group - and more easily feel bound by its
decisions - if he knows that he has had his own, independent, impact on the
decision. A musician who plays the triangle in John Rawls' orchestra knows
that he is important and irreplaceable in his own right, even if he is not the
first violin. He will, as a member of the group, feel just as exhilarated as any
other member of the orchestra if the concert is a success. A footballer who
sat on the substitutes bench during the whole game will nonetheless feel
responsible for the loss of agame. Thus, in order to be a genuine member of
a political community, an individual must be satisfied that the act taken by
the community,
'is in sorne pertinent sense [his] act, even when [he] argued
and voted against it, just as the victory or defeat of a team of
which [he is] a member is [his] victory or defeat even if [his]
own individual contribution made no difference either
Maybe even more striking than the principle of independence's similarity to
Lincoln's vision of government of the people, is its similarity to Habermas'
concept of co-originality of public and private autonomy. Habermas argues
even more eloquently than Dworkin that democracy will only work if the
addressees of laws feellike the authors of those laws. Roughly, his argument
is that individuals will only participate in democratic procedure (for which
they need public autonomy), if they have been granted individual liberties to
develop their own personalities and convictions (private autonomy). They
will then be willing to accept laws passed through the democratic process,
because they have had their say in it. Each form of autonomy is required to
18 J. Cohen, 'Habermas on Democracy', (1999) 12 Ratio Juris 4,385, p. 391.
19 Dworkin, fn. 5 above, p. 22.
UCL Jurisl2.rudence Review 2000
explain the other; they are 'co-original' .20 Again, however, this will be
explored more fully in the next section.
Dworkin's constitutional conception of democracy seems to be a
commendable effort to close the conceptual gap between constitutional and
majoritarian readings of democracy. Indeed, if we switch to a communal
interpretation of democracy as developed by Dworkin and as outlined above,
we will notice that many constitutional provisions that have been regarded as
limiting democracy actually enhance it. One critical comment remains to be
made about Dworkin's theory, however. What he has done is to structure a
model that reflects political reality and democratic institutions prevalent in
the USA today. He has looked at the US system in order to make 'pre-
interpretive assumptions about what good democracy is like in practice' and
to develop a model of democracy that justifies 'these familiar institutions
and assumptions' .21 Hence, his principle of participation explains why a
good democracy must have a system of (near) univers al suffrage, and
structures of representation that make political offices open in principle to
everyone. His principle of stake explains the existence of provisions for a
welfare state, and guarantees of non-discrimination. His principle of
independence, lastly, makes evident the need for constitutional guarantees of
freedom of speech, association and religion, as well as for liberal tolerance
of unpopular views. The danger with his approach is that, trying to build a
model of an ideal political system by justifying existing structures runs the
risk of ending up with a model that institutionalises the shortcomings of
present systems.
Indeed it seems that the existing Anglo-American liberal democratic
model might already have led Dworkin to conclusions that do not necessarily
follow from his theory. He supports certain institutions without examining
too closely their raison d'être; justifying their existence by reference to sorne
ultimate right to equality - although the right to equality might just as well
call for different institutions. Thus, a welfare state system on which Dworkin
insists might not be as essential to universal democracy as he thinks. Worse
still, faced with the strains of 21 st century reality, it might even fail to
deliver the equality that it was meant to achieve. Similarly, his emphasis on
judicial review and other institutional practices in the USA might make his
model too restricted to be of universal validity.
The skeleton argument of Dworkin's the ory is intuitively appealing.
Interpreting the constitutional protection of rights as enhancing democracy
rather than disabling it, makes possible a comprehensive conception of
20 J. Habermas, Between Facts and Norms (Cambridge, MA, 1996), pp. 104, 118 -
21 Dworkin, fn. 3 above, p. 337.
The Constitutional Protection of Rights in Dworkin 's and Habermas' Theories of Democracy
democracy that was formerly impossible. But the angle that Dworkin has
chosen to build his model fails to provide answers of univers al validity. l
will thus turn to the theory of Jürgen Habermas which manages to overcome
many of the shortcomings of Dworkin' s democratic model. Habermas has
developed a theoretical constitutional model applicable to any political
A Discursive Conception of Democracy
Jürgen Habermas' conception of democracy is founded on the abstract ideal
of 'a self-organising community of free and equal citizens', co-ordinating
their collective affairs through their common reason?2 In brief, Habermas
finds the basis of democracy in a general, 'post-metaphysical' the ory of
hum an reason, which he presents in the theory of communicative action?3
Habermas calls his the ory 'post-metaphysical' because it adapts the Kantian
metaphysical principle of universal reason which, he claims, can no longer
be defended in its original form because of 'conditions of social and
ideological p lurali sm ,.24This classical idealist conception of the principle of
unity of reason insisted on the existence of a unitary common consciousness,
so that individuality was curtailed. 25 Due to the complexity of the modern
world, this view can no longer be upheld. Members of a pluralistic society
naturally embrace competing philosophies of life, hold widely diverging
conceptions of the good, and find themselves in significant disagreement
over fundamental values. A unitary common consciousness no longer exists
and, universal reason is dead, according to this view. Instead, Habermas
proposes the concept of communicative reason, where individuals engage in
practices of free, open-ended, and reflective discussion. Whereas the concept
of univers al reason presupposed that every citizen would be in agreement
over sorne fundamental values which were based on a system of natural,
22 Habermas, fn. 20 above, p. 7.
23 Cohen, fn. 18 above, p. 386.
24 J. Habermas, 'Reconciliation through the Public Use of Reason - Remarks on
John Raw1s' Politica1 Liberalism', (1995) Journal of Philosophy, 109, p. 117. See
a1so K.-H. Ladeur, 'Can Habermas' Discursive Ethics Support a Theory of the
Constitution?', European University Institute Working Paper LAW No. 99/4
(avai1ab1e at p. 3.
25 E.g., for 1. Kant on unity of reason see J. Simon, Philosophie des Zeichens
(Berlin, 1989), p. 278; for J.-J. Rousseau see A. Se1igman, Innerworldly
In dividu a lis m, Charismatic
and its Institutionalisation
Brunswick 1994), p. 187.
UCL Jurisl2.rudence Review 2000
'higher', rights of divine providence,26 Habermas' approach finds reason in
the procedure of argumentation itself. At the end of the argumentation
process we might no longer be blessed with a 'universally valid view of the
world', but instead we will have achieved a 'we-perspective from which all
can test in common whether they wish to make a controversial norm the
basis of their shared practice'.27 To put it bluntly: Even though one might,
on an individual level, disagree with a collective body on the value, or the
'rightness', of certain legal or moral norms, the inclination to abide those
norms will be great - as long as the decision was taken in accordance with
discursive action, and is thus based on 'common reason'. This, of course, is
a question about the legitimacy, or validity, of norms.
Legitimacy, in Habermas' definition, means 'worthiness to be
recognised'. Or, in other words, it means that there are 'good arguments for
a [norm's] claim to be recognised as right and just' - a legitimate norm
deserves recognition. 28 When applied to a political system, legitimacy thus
could mean two things: (1) that legitimate norms will be observed by
members of the political system out of respect for them and because they are
considered as right and just, or (ii) that legitimate norms give a state the
power to coerce members into submission precisely because of their
legitimacy.29 Habermas has developed a principle of legitimacy which he
labels 'D'.
'''D'': just those action norms are valid to which all possibly
affected persons could agree as participants in rational
discourse. ,30
The important thing to bear in mind is that 'D' is meant to be a hypothetical
test under ideal conditions. We are not really expected to gain 'valid' norms
through univers al agreement, because, as we have established above, in a
26 1. Kant, 'On the Proverb: That may be true in theory, but is of no practica1 use'.
In Kant, PerpetuaI Peace and Other Essays, transI. by T. Humphrey
(Indianapolis, 1983), pp. 81-92, here p. 82. Regarding the imminent question of
whether the protection of rights subverts pure democracy, it must be observed
that Kant wou1d not have seen the existence of such a prob1em. He assumed that
no individua1 cou1d ever agree in the first place to 1aws infringing on their own
private autonomy as warranted by natura1 1aws.
27 Habermas, fn. 24 above, p. 117.
28 Habermas, 'Legitimation Prob1ems in the Modem State', in W. Outhwaite, The
Habermas Reader (Oxford, 1996), p. 248.
29 Cohen, fn. 18 above, p. 392.
30 Habermas, fn. 20 above, p. 107.
The Constitutional Protection of Rights in Dworkin 's and Habermas' Theories of Democracy
modern pluralistic society, univers al agreement is impossible. Thus, we have
to distinguish between what would hypothetically be agreed by all under
ideal conditions, and what is actually agreed by most under adequate
procedural conditions. 3l Whereas 'D', presuming ideal conditions, demands
univers al acceptance, in reality a norm would be valid if most people agreed
under procedurally adequate conditions that it was right. In reality, we will
never find 'the truth', thus a norm may not be ultimately 'right' only
because a majority has decided that it is. Nonetheless it will be valid, i.e.
citizens will observe it out of respect for it, and the state may legitimately
(with moral justification) impose it by force of law. 32 A word of caution:
just because a norm may not be 'right' in the metaphysical sense of the
word, does not mean that Habermas does not believe in the concept of 'one
right answer,.33 There is a right answer, and the principle of 'D' shows us
how to arrive at it. The difference is that discourse is an ongoing process,34
and that validity, or truth, claims change with it over time. Reason is subject
to a 'fallibilist proviso' that assumes that majority decisions can be revised at
any time when found to be wrong. 35 A norm that was 'right' 30 years ago
might no longer be 'right' today. Nevertheless, that norm was valid at its
time, validated through 'D'.
It is interesting to note, at this point, the similarities between
Habermas' ide a of an eternal discourse, and Dworkin's approach to judicial
interpretation. 36 Dworkin proposes that there is in relation to every dispute
always a 'right answer' which provides the best solution. A judge's task,
when faced with a dispute, is to find that answer. Although Dworkin has
never himself suggested this, the meaning of his concept of 'one right
answer' becomes much clearer wh en it is revised in the light of Habermas'
eternal discourse. When a judge delivers his judgment, this can well be
regarded as if it were 'the right answer' - the fact that the 'truth' is subject
to change does not make it less 'true' at the time. However, this does not
mean to imply that once a judge has spoken, interpreted the law, and set
31 F. Miche1man, 'Democracy and Positive Liberty', (1996) 21 Boston Review 5, 1
32 Miche1man, fn. 31 above, at IV.
33 W. Rehg, in Habermas, fn. 20 above, p. xiii.
34 Habermas, fn. 20 above, p. 129; K. Günther, 'Legal Adjudication and
Democracy', (1995) 3 EJP l, 36, p. 47; C. Larmore, 'The Foundations of Modem
Democracy', (1995) 3 EJP l, 55, p. 59.
35 Habermas, fn. 20 above, p. 186.
36 1 am gratefu1 to Charlie Grapski for pointing this out to me.
UCL Jurisl2.rudence Review 2000
forward what it means, it is the law for eternity. It only remains valid until
the process of truth-finding (or validation or legitimation) cornes up with a
contrary result. Until that moment, however, we can treat it as if it were the
truth. 37 What is interesting about this process is further that Dworkin, like
Habermas, believes citizens to have a direct influence on it through engaging
in argumentation:
'[judicial review] provides a forum of politics in which
citizens may participate, argumentatively, if they wish, and
therefore in a manner more directly connected to their moral
lives than voting almost ever is. ,38
To return to the question about the legitimacy of norms, it can thus be
concluded that norms can be regarded as valid under 'D'if they are
universally rationale and acceptable (i.e. that under ideal conditions, every
affected pers on would agree to it). To a certain extent, 'D' can thus be
equated with what other commentators have called 'popular sovereignty'.
Democratic systems (compared to autocratic or totalitarian systems) gain
their legitimacy from the fact that they represent the will of the people. Free
elections establish the wishes of the majority; this process in turn accords
validity or legitimacy to the political system. This is what commentators like
Huntington have called popular sovereignty. Habermas similarly expresses
the legitimacy of a political system in his principle 'D'. However, whereas
Huntington equates popular sovereignty with democracy, Habermas sees 'D'
as only one element of it. On Habermas' conception, the concept of law or
of a legal code, and the system of rights, are just as important as 'D' to bring
about democracy. All of these concepts are interrelated; and Habermas'
model of democracy is thus a highly complex one which warrants an
understanding of each of its constitutive elements. In the following, an
explanation of the other elements of democracy will be given.
It has been ascertained that norms can be validated through 'D'if they
can be approved by all affected parties. However, approval by all affected
parties will only be forthcoming (even in theory) if the political system of
which they are members provides the appropriate institutions that gives them
the opportunity to do so. It is at this point that the concept of law cornes into
play. In Habermas' model, 'legality' or a 'legal code' are necessary to create
37 C. Grapski, 'Dworkin and Habermas: the Discursive Intuitions in Dworkin's
Theory of Law and Democracy', MA. Thesis in Legal and Political Theory, UCL
1998, pp. 14-16.
38 R. Dworkin, 'What is Equa1ity? Part 4: Politica1 Equality', (1987) 22 University of
San Francisco Law Review l, p. 29. (emphasis added)
The Constitutional Protection of Rights in Dworkin 's and Habermas' Theories of Democracy
the conditions in which citizens can engage in discourse in order to produce
legitimate law. 39 The principle 'D' can thus not exist without a legal code.
But similarly, the legal code is dependent on 'D', because law is only
validated through democratic process. The legal code and 'D' thus mutually
presuppose each other. 40
To take this one step further, the idea of political and civil rights is
introduced. Habermas claims that the institutions provided for by the legal
code must assign equalliberties to each person. Only if every person has the
same right to participate in the practice of legitimate lawmaking can citizens
as addressees of law obtain a correct understanding of the legal order as
created by themselves as its authors. 4l It was noted before that individuals
will accept norms decided upon by a collective body adhering to correct
procedure. The real importance of this correct procedure then is that citizens
feel that they have had their say in the process of lawmaking. They can
accept a collective value judgment even if disagreeing with it, if they can
identify with the collective body that passed such judgment and can attribute
their actions to it as parts of a whole. 42 (Y ou will remember that Dworkin
already emphasised the importance of the principle of stake which granted
every citizen an equal opportunity to play a role, and the principle of
independence which assured every citizen that it was their own independent
opinion that influenced collective value judgments.) Habermas refers to this
as the 'co-originality' of private and public autonomy,43 which was already
hinted on in the first section of this paper. It is an important concept which
warrants careful explanation, especially as it will finally pro vide an overview
of Habermas' conception of the constitutional protection of rights in a
democratic system.
Private and Public Autonomy of Citizens in a System of Rights
It was said in the introduction to this paper that to many theorists 'rights and
popular sovereignty seem in irreconcilable competition'. This statement had
to be qualified, as even most majoritarians would have to agree that certain
'political liberties' (regarded as a prerequisite for public autonomy) are
necessary to ensure popular sovereignty, i.e. the democratic process, and
39 J. Habermas, 'On the Internai Relation between the Rule of Law and
Democracy', (1995) 3 EJP l, 12, p. 16; Habermas, fn. 20 above, pp. 111, 136 ff.;
Ladeur, fn. 24 above, p. 12.
40 Habermas, fn. 20 above, p. 122.
41 Habermas, fn. 20 above, pp. 120 - 121.
42 Habermas, fn. 20 above, p. 133.
43 Habermas, fn. 20 above, pp. 104, 118 - 130.
UCL Jurisl2.rudence Review 2000
therefore, in its widest sense, democracy itself. As we have seen, 'personal
liberties' (a prerequisite for priva te autonomy or personal development), on
the other hand, are still widely regarded as subverting the principle of pure
democracy. According to Habermas, '[t]hus far no one has succeeded in
satisfactorily reconciling private and public autonomy at a fundamental
conceptuallevel', as is 'evident' ifwe consider the tensions between ideas of
'human rights and popular sovereignty' .44As shown above, Ronald Dworkin
has already attempted to bridge this conceptual gap between the notions of
rights and popular sovereignty, by declaring certain rights necessary to
enhance 'democracy' (i.e. only the protection of rights will enable citizens to
participate in popular government). Dworkin, however, does not envisage all
conceivable personal liberties to be deserving of special protection, as he
does not intend 'the absurd claim that every constraint on majoritarian power
[i.e. personalliberties] improves democracy'. 45
Habermas' model is thus wider than Dworkin's as he regards a ground
category of basic rights as a prerequisite condition constitutive of
democracy. We have stated above that, on Habermas' conception, democracy
is dependent on a legal code that provides the institutions for legitimate law-
making. Legitimate law-making, in turn, will only be possible if a variety of
equal liberties is provided, a 'system of rights'. This includes both
participatory, 'political' liberties, as well as 'personal' liberties. 46 Put very
simply, individuals need political liberties to participate in democratic
procedure (which will grant them public autonomy), but they will only be
willing to participate if they have been granted individual liberties to
develop their own personalities and convictions (i.e. if they have private
autonomy).47 Each form of autonomy is required to explain the other; they
are 'co-original'. 48
Habermas' model contains political and personal liberties on a very
abstract level, not specific fundamental rights - such as rights to conscience,
bodily integrity, non-discrimination etc. - as Dworkin's model did. 49 Those
familiar liberal basic rights of our modern societies which Dworkin mentions
can be fitted into Habermas' model of highly abstract basic rights only at a
later stage. There are two reasons for Habermas' insistence on rights 'in
abstracto'. First of all, his theory is modelled on a highly theoretical world
44 Habermas, fn. 20 above, p. 84.
45 Dworkin, fn. 3 above, p. 341.
46 Cohen, fn. 18 above, p. 391.
47 Habermas, fn. 20 above, p. 122; Ladeur, fn. 24 above, p. 12; Habermas, fn. 39
above, p. 17.
48 Habermas, fn. 20 above, pp. 104, 118 - 130.
49 See text regarding fn. 21 above.
The Constitutional Protection of Rights in Dworkin 's and Habermas' Theories of Democracy
in which there is not yet an organised state authority against which specific
rights, such as freedom of speech, would have to protect. Secondly, and
more importantly, Habermas refrains from offering a catalogue of specific
rights to avoid precisely what we have criticised in Dworkin's theory - to
become overly focused on a certain model that could not be of univers al
validity. Habermas suggests that the basic rights he proposes remain
'unsaturated' .50 This means that political systems can interpret them and
give them concrete shape in the way which is most appropriate for their
individual circumstances. Habermas is not concerned with proposing a set
catalogue of rights that every 'true' democracy will have to pro vide for its
citizens, just as he is not concerned with finding a specific type of political
organisation that will serve as a once-and-for-all model of democracy.
Concerning democracy as the overall principle, he is aiming to provide a
template of democratic organisation that must be applied separately to
individual political systems. Concerning rights that are essential to this
overall principle of democracy, he proposes general rights that must be
interpreted, adapted, and specified by each society in its own way.
But which are these categories of rights? Habermas generates, first of
all, three categories of civil rights that guarantee the 'priva te autonomy of
legal subjects so that they can recognise each other in their role of addresses
of law' .51 These rights are to guarantee (i) the greatest possible measure of
equal subjective liberties or freedom of action, based on (ii) membership in a
free association of citizens and (iii) individual legal protection in exercising
one's rights. 52 A fourth category of rights warrants political autonomy
through which citizens enact legitimate law: (iv) the right to equal
participation in the democratic opinion- and will-formation process.
The similarity between Habermas' and Dworkin's models of
democracy gains even greater clarity when one recognises the resemblance
between 'political rights' and 'enabling rules', and 'personal rights' and
'disabling rules'. Habermas is in agreement with Dworkin that 'political
rights' safeguard the exercise of public autonomy and make possible public
participation in the first place (although, contrary to Dworkin, he refuses to
name what these rights should entail other than a basic right of equal
participation). It is clear that those rights deserve protection because without
them, 'democracy', in its widest sense, must fail. One step further, however,
Habermas rejects the view that personal liberties, which guarantee citizens'
private autonomy, should be worth less than political rights. They are as
50 Habermas, fn. 20 above, p. 125.
51 Habermas, fn. 20 above, p. 123 (emphasis added).
52 Habermas, fn. 20 above, p. 122.
UCL Jurisl2.rudence Review 2000
fundamentally important as political rights. This is justified by claiming that
personalliberties (or 'human rights') 'legally enable the citizen's practice of
self-determination' .53In other words, citizens will only be able to participate
fully in the democratic process if they can develop sufficient personal
autonomy. This they can only gain if their fundamental hum an rights are
protected. Dworkin agrees with Habermas to the extent that he regards
'democracy and constitutional constraint.. .not [as] antagonists, but [as]
partners in principle'. 54 Dworkin cannot envisage, however, all personal
liberties that guarantee private autonomy and freedom of action to enhance
democracy,55 whereas Habermas cano This slight difference in emphasis
might be explained by the fact that Habermas is firmly based in a German
constitutional tradition which affords citizens a 'right to personality' (i.e. to
full and unrestrained development of one' s personal abilities) as one of its
most fundamental rights enshrined in Article 2 of its basic law
( Grundgesetz).
In conclusion, it must be observed that Habermas' emphasis on the
importance of both political and personal rights perhaps paradoxically serves
to emphasise the ideal of popular sovereignty. In his words, the principle of
sovereignty 'forms the hinge between the system of rights and the
construction of a constitutional democracy. ,56 Fundamental rights have their
proper basis in the principle of popular sovereignty, so that citizens will
understand their collective will as the source of all the norms which bind
them. On Habermas' conception, the essentially protective function of such
rights does not lie primarily in restricting the power of the state, but instead
at the deeper level of empowering individuals to participate in this
democratic self-rule. (Notice again the similarity to Dworkin's distinction
between 'disabling' and 'enabling' rules!) As Larmore has observed,
'[i]ndividual rights serve, not to protect us against the collective will, but
rather to protect the means necessary for creating a collective will.' 57
Democracy in Habermas' eyes thus is a form of self-rule, made possible
through the system of rights that ensures the co-originality of public and
private autonomy.
53 Ladeur, fn. 24 above, p.l2.
54 Dworkin, fn. 3 above, p. 346.
55 See text regarding fn. 45 above.
56 Habermas, fn. 20 above, p. 169.
57 Larmore, fn. 34 above, p. 65.
The Constitutional Protection of Rights in Dworkin 's and Habermas' Theories of Democracy
In this paper l have attempted to show that the concept of democracy as 'rule
by the people' entails more than mere majority rule. Free elections alone by
no means suffice to bring about a democratic system. The two theories under
review have both illustrated that a political system can only achieve true
democracy if it provides sorne sort of constitutional protection of rights from
encroachment of the sovereign will. l have further attempted to show the
similarities between the two approaches, as well as their most significant
Both writers seem to base their democratic models on sorne ultimate
right to equality. Dworkin does not fundamentally oppose the structures of
government as proposed by a majoritarian reading of democracy (i.e.
popular elections), but he redefines the aim of democracy to be the taking of
decisions in accordance with structures, compositions, and practices of equal
concern and respect for all citizens. Habermas' the ory of democracy is
similarly grounded on the ideal of self-rule in which every individual has an
equal part. Taking a slightly different approach to Dworkin, however, he
suggests that self-rule can only be brought about in the first place, if
personal liberties (equal subjective liberties or freedom of action), and
politicalliberties (the right to equal participation in the democratic opinion-
and will-formation process) are protected. On both accounts, fundamental
rights are in need of protection in order to preserve every citizen' s equal
status. Rights are thus not subverting democracy, but enhancing it.
More defined differences between the two academics can be detected
when testing their theories on real political systems. Dworkin argues that
many constitutional provisions that protect rights, can be interpreted as
enhancing democracy rather than subverting it. His constitutional model of
democracy thus affords those provisions more democratic legitimacy than
previous models used to do. However, the criticism that his model is too
focused on the American constitutional system, and therefore fails to provide
a model of univers al validity, is a powerful one. l am inclined to favour
Habermas' principle of 'unsaturated' basic rights. Political systems can shape
and interpret Habermas' categories of basic rights in their own ways, and
build constitutional models that suit their specific needs. Overall, Habermas
proposes a certain basic pattern of democracy (which includes the protection
of rights), but does not insist on specific manifestations of it. An analysis of
the concrete social and political conditions of each particular society, of its
specific disposition, of general information about it is necessary before a
society can decide which types of organisation, which mechanisms of
political association, and especially, which fundamental rights, are best
UCL Jurisl2.rudence Review 2000
suited for its very particular circumstances. Therefore, true democracy
cannot mean an 'a priori preference' for any particular type of democracy,58
but means something different in each case. The only known variables are
principles of self-rule, a system of (unsaturated) rights, and a legal form to
institutionalise the democratic system.
l find Habermas' approach to offer a very promising re-definition of
the concept of democracy, capable of living up to the challenges of the
modern world. It is to be hoped that his the ory will start a process of re-
evaluation among the existing 'democracies' of this world, which might
finally guarantee what the apparent existence of democracy has been
promising for so long: equal rights for all citizens.
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