articledworkin

The Constitutional Protection of Rights in Dworkin 's and Habermas' Theories of Democracy

101

The Constitutional Protection of Rights in

Dworkin's and Habermas' Theories of Democracy

Cornelia Schneider

Introduction

'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).

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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.

26.

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

103

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.

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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

105

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.

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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

107

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).

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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

109

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

way'.19

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.

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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 -

130.

21 Dworkin, fn. 3 above, p. 337.

The Constitutional Protection of Rights in Dworkin 's and Habermas' Theories of Democracy

111

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

system.

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 http://www.iue.it/PUB/Wpapers/LWon1ine.htm1). 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

Community

and its Institutionalisation

(New

Brunswick 1994), p. 187.

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'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

113

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

miche1man.htm1).

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.

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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

115

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.

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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

117

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.

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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

119

Conclusion

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

differences.

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

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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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