cuptw.files. Web viewLet me start by quoting a passage from a recent essay by Habermas in which he...

Columbia University Political Theory Workshop, 12 October 2011Do not cite or circulate without the permission of the author.

Violating Neutrality? Religious Validity Claims and Democratic Legitimacy

Maeve Cooke

Jürgen Habermas takes the view that permitting religious contributions to formally

organized democratic deliberations – for example, deliberations in parliaments –

violates democratic neutrality, thereby undermining democratic legitimacy.1 In

adopting this exclusionary position, Habermas is in good company, for it is the

position favoured today by most political theorists concerned with democracy in

Western societies.2 For a number of reasons, I think this exclusionary position is

wrong; indeed I believe that it threatens democracy.3 Furthermore, I do not find

Habermas’ arguments in favour of the exclusionary position persuasive. My paper

today builds on some criticisms I have made elsewhere of his arguments for excluding

religious contributions from democratic law-making and decision-making processes.4

One of my main points in these critical discussions is that Habermas conflates

religious arguments with authoritarian arguments. In my view, this is too hasty.

Moreover, I think that if arguments are excluded from parliamentary debates and

legislative processes, it should be on grounds of their authoritarianism and not simply

on grounds of their religious character. In the present essay, I pursue a somewhat

different line of attack. I show how the conception of democratic legitimacy he

favours, combined with a problematic understanding of religious validity claims,

obliges him to adopt his exclusionary position. Accordingly, in order to make my

case I have to say something both about his conception of religious validity claims

and about his conception of democratic legitimacy.

1


Let me start by quoting a passage from a recent essay by Habermas in which he

justifies his exclusion of religious validity claims from formal processes of

democratic decision-making and law-making. He writes:

Religiously rooted existential convictions, by dint of their if necessary rationally

justified reference to the dogmatic authority of an inviolable core of infallible

revealed truths, evade that kind of unreserved discursive examination to which other

ethical orientations and worldviews, i.e. secular ‘conceptions of the good’, are

exposed.5

From this we can see that Habermas’ main objection to including religious

contributions in democratic deliberations is that they are not open to unrestricted

argumentative assessment. He offers three interconnected reasons for this: a) they

refer to a dogmatic authority b) this authority is authoritarian;6 c) they appeal in the

final instance to revelation, thereby making argumentative assessment of their claims

to validity epistemically unproductive. My concern in the following is with the third

component of his objection: his assertion that religious validity claims – in contrast to

ethical ones – rest on an ‘inviolable core of infallible revealed truths’.7

My argument against Habermas is that his view of religious validity claims is

connected with a conception of practical validity that is too heavily focused on

argumentation. Here I refer in particular to his conceptions of moral validity, legal

validity and political validity.8 I also hold that he is wrong to make reliance on

revealed truths a distinguishing feature of religious claims to validity.

His conception of practical validity is too focused on argumentation in two respects:

First, it assumes that people come to accept the validity of arguments for or against a

particular moral, political or legal view due to the exchange of reasons in

2


argumentation. In other words, it makes the rational acceptability of validity claims in

the domain of practical reason something that is determined purely argumentatively.

Second, it defines the quality of the outcome of democratic (and also moral)

deliberations solely in argumentative terms. As we shall see, it defines democratic

legitimacy (and also moral validity) as the outcome of an idealized procedure of

argumentation: it allows for nothing external to argumentation that could call the

validity of the outcome of such an idealized argumentative procedure into question.

I will show to begin with how this too heavily argumentation-focused view of

practical validity results in an unconvincing account of religious validity claims that

over-plays the differences between religious claims to validity and (for example)

ethical validity claims. I will then show how it leads to a conception of practical

validity that is problematic in a number of respects. Some of the reasons for rejecting

it are independent of the question of religion and democracy. However, some are

directly relevant to this question for an unwelcome side-effect of his argumentation-

focused view of political/legal validity is hostility to religious contributions to formal

democratic debates.

-1-

As I see it, Habermas’ view of how people come to accept the validity of arguments

for or against a particular moral, legal or political position is too heavily focused on

argumentation. I will outline an alternative account.

In the domain of practical reason, coming to accept the validity of a particular

perspective or position often requires a shift in perception. In other words, accepting

the validity of a particular perspective or position requires us to come to see the world

in a new way. Moreover, coming to see the world in a new way involves disclosure.

3


A person who changes her perception of her need for a certain income level, for

example, must have had her eyes opened to the importance of doing so. Some

process, some event, some argument or some person(s) must have opened her eyes.

For instance, her eyes may have been opened by the example of a neighbour who

lives well on a much smaller income or by powerful arguments from someone who

made her see that her need for a certain level of wealth can be satisfied only at the

expense of the well-being of other persons. To be clear: by ‘disclosure’ I simply mean

the kind of opening of eyes that precedes new ways of seeing in the domain of

practical reason. For ‘disclosure’ in this sense one may normally substitute the word

‘revelation’.

Shifts in perception are not only cognitive; normally they change not just what we

think but also how we behave. However, they always also have a cognitive

dimension. By this I mean that those to whom the validity claims are addressed will

be able to accept them rationally only if they come to see the world in a new way.

This means, in turn, that the shift in perception is epistemically significant, for it has

an important impact on assessment of the epistemic quality – the rationality or truth –

of the validity claims in question. (They are also existentially significant, but I cannot

pursue this aspect here.) For this reason I describe such changes in ways of seeing as

‘epistemically significant shifts in perception’.

Although coming to accept the rationality of a validity claim in the domain of

practical reason often presupposes an epistemically significant shift in perception, not

all such shifts happen in the same way. Broadly speaking, we may distinguish

between shifts in perception that are brought about due to the exchange of reasons in

argumentation and shifts in perception that happen for reasons independent of

argumentation.9

4


In the first case, the exchange of reasons brings about the shift in perception: the

factors determining the adoption of the new perspective or position are purely internal

to the argumentative situation. In the second case, by contrast, the new perspective or

position comes about independently of the argumentative situation: although

argumentation is needed to assess the rational merits of the new perspective, only

persons who have undergone the relevant change in perception prior to the

argumentation will be able to weigh up the merits of the validity claims in question.

To illustrate the first case, we could take Habermas’ account of public deliberation. In

Habermas’ normative account of democratic deliberation, all perceptions of needs,

interests and ethical concerns are in principle open to critical examination in public

deliberation, and hence to modification or transformation on the basis of good

reasons.10 This openness to modification or transformation is particularly important

under conditions of modern pluralism, where citizens tend to have conflicting

perceptions of their needs, interests and ethical concerns. If agreement is to be

achieved, therefore, citizens must be prepared to revise their perceptions of their

needs, interests and concerns in light of the needs, interests and concerns of other

citizens. The mutual revision of needs, interests and concerns calls for the public

exchange of arguments in which the objections of others compel citizens to look

critically at their own perceived needs, interests and concerns and to change them if

necessary. This illustrates what I mean by epistemically significant shifts in

perception that are brought about through the exchange of reasons in argumentation.

To illustrate the second case, we could take situations in which a vegetarian way of

life is to be justified rationally. Arguments for vegetarianism often involve non-

argumentative forms of disclosure and transformation.11 In such cases, those to whom

the arguments are addressed will be able to accept them on the basis of good reasons

5


only if they undergo, or have undergone, a change in perception prior to participation

in argumentation. Be it suddenly or gradually, independently of discussion they must

have come to see the world in a way that makes the reasons exchanged in the

discussion speak to them personally; here we may imagine argumentation-

independent experiences such as a visit to an abattoir or adopting a meat-free diet for

health reasons for a number of years.

It is easy to imagine similar situations in the case of religious validity claims. In such

situations, the persons to whom religious arguments are addressed will find them

rationally acceptable only if they undergo or have already undergone an epistemically

significant shift in perception independently of the exchange of reasons in discussion.

Examples might be situations in which the shift in perception is due to an existentially

significant experience such as the death of a loved one or to the practice of attending

church services for many years.

Why do I distinguish between the acceptance of validity claims due to the exchange

of reasons in argumentation and acceptance that comes about due to factors external

to the argumentative situation? One of my concerns is to make clear that Habermas

privileges cases of the first kind: at least in his account of moral, legal and political

validity he takes argumentatively induced shifts in perception to be the norm;12 by

contrast, in the case of religious validity claims he appears to exclude the possibility

of argumentatively induced shifts in perception. This tacit distinction between moral,

political and legal arguments, whose rational acceptability is argumentatively

induced, and religious arguments, whose rational acceptability depends on non-

argumentative factors, is part of the explanation for his exclusion of religious

arguments from formal processes of democratic deliberation. In the final part of my

6


paper, the significance of this point for our understanding of political legitimacy will

become apparent.

I now turn to the second respect in which Habermas’ account of practical validity is

too heavily focused on argumentation. Habermas not only privileges the exchange of

reasons in argumentation when it comes to explaining how epistemically significant

shifts in perception come about; in addition, he makes the exchange of reasons in

argumentation the determining factor in accounting for the epistemic quality of such

shifts in perception.13 More precisely, his criteria for determining whether or not the

new way of seeing counts as a cognitive gain are specified in terms of the procedure

and outcome of argumentation. This contrasts with his view of the epistemic quality

of the outcome of religious deliberations. In the case of religious deliberation he holds

that a source external to the argumentative procedure determines whether the result of

the deliberation is valid – that is, rational or true. For, as we have seen, he holds that

even self-reflexive, discursively inclined religious believers appeal to an

argumentation-external authority – a divine authority that reveals itself to human

beings. Let us take a closer look at this part of his account.

Broadly speaking, we can distinguish two positions vis-à-vis the epistemic quality of

the outcomes of deliberation. According to the first, the epistemic quality of the

outcome is attributable ultimately to something external to human deliberation

(indeed, to human communication); according to the second, its epistemic quality can

be explained entirely in terms of human communication, specifically, in terms of an

idealized procedure of argumentation.

The first position is held by many religious believers. Indeed, if their religious belief

entails belief in a God that transcends human practices and, furthermore, the belief

that God is truth, they are committed to such an explanation of the epistemic quality

7


of the outcome of argumentation: they cannot attribute it solely to the exchange of

arguments within the argumentative situation, at least in situations where participants

are concerned with truth. This means in turn that they make the question of whether

the change in perception is an epistemic gain – whether it is a qualitatively better view

of things –ultimately dependent on something outside of the deliberation. It is

important to note that the first position is not exclusive to religious believers. It is held

by anyone who asserts that truth in the practical sense is logically independent of the

outcome of intersubjective deliberation: it does not require belief in a divine source of

validity (at least not in any conventional, monotheistic or personalized sense of the

divine).

The second position is held by all those who affirm an epistemic-constructivist

conception of truth in the practical sense. Habermas is an example of someone who

does so, at least with respect to certain kinds of practical validity claims. This is most

clearly evident in his account of moral validity. 14 In Habermas’ view, moral reality –

the moral world – is ‘made by us’: the realm of morality is itself generated in

discourse.15 Moral validity is defined as the outcome of a discursive procedure,

universal in extent, in which participants reach agreement that a particular norm or

principle is equally in everyone’s interests. This discursively generated agreement is

conceived of as the ‘single right answer’ to the question at hand; moreover, as an

answer that is arrived at by everyone for the same reasons. This is what lends moral

validity its unconditional character and makes it analogous to truth.16 This is the first

noteworthy feature of Habermas’ conception of moral validity: it attributes to human

beings the power to generate knowledge that is valid in an unconditional sense. A

further noteworthy feature is that it implies a purely argumentation-internal view of

how we arrive at moral knowledge. In stipulating that the right answer must be

8


arrived at for the same reasons, it implies that only those shifts in perception that are

brought about by way of the exchange of reasons within moral argumentation are

epistemically significant. Thus, when he attributes to moral deliberation a

transformative power in the sense of a potential for changing perceptions, he means

that the participants, who are concerned to find norms or principles that are equally in

everyone’s interests, come to see their own interests differently when confronted

argumentatively with the interests of other participants; further, that this

transformation can be fully explained in terms of the exchange of arguments in a

context in which the guiding concern is to find ‘the single right answer’.

This account of moral deliberation is troubling for a number of reasons. To begin

with, it rules out the moral salience of arguments whose rational acceptability depends

on argumentation-external factors; this over-inflates the power of arguments to make

shifts in perception happen. Second, it leaves no room for an understanding of

epistemic quality that is non-argumentative: it makes the epistemic quality of shifts in

perception entirely dependent on finding ‘the single right answer’ by way of an

argumentative procedure. Let me outline briefly my objections to the latter aspect of

it.

My objections, in a nutshell, are that Habermas’ argumentation-internal

(constructivist) account of epistemic quality is finalistic, counter-intuitive and

hubristic. In order to show this, it is helpful to use his device of the ‘ideal speech

situation’, a thought experiment or methodological fiction that plays a significant role

in his theory of moral validity (and, I contend, in his account of legal/political

validity).17 In this theory, as indicated, a rational consensus reached under idealized

communicative conditions defines validity in a truth-analogous, unconditional sense.18

The projected ideal communicative situation is one of complete inclusion, perfect

9


fairness, total transparency of meaning and complete information, in which

participants in deliberation would be concerned only with the common pursuit of the

right answer and would be equipped with the powers of understanding and

imagination necessary to find it.19 Note that in the ideal speech situation, moral

validity is construed as a matter of constructing the single right answer to a moral

problem, as opposed to finding it. Participants in deliberation are given the powers of

understanding and imagination required not for recognizing the single right answer

but for producing it. This is why perfection of the procedure of intersubjective

deliberation, combined with application of the principle of universalizability, is held

to result in perfect moral knowledge. In this thought experiment, therefore, human

beings are granted the power to generate moral validity in an unconditional sense. I

see this thesis of the coincidence of human knowledge and (moral) truth as

worryingly hubristic. I also think it runs counter to some of our deepest intuitions, for

it eliminates the moment of receptivity to the unanticipated and to the new that we

associate with the best human achievements. Furthermore, I regard it as finalist, in the

sense that it postulates a possible endpoint to the process of historical learning and

creative human thinking, thereby denying the finitude of human knowledge, the

contingency of human life and history and the creativity and freedom of human will.20

-2-

Let me turn now to democratic legitimacy.21 There is evidence to suggest that

Habermas’ conception of democratic legitimacy is truth-analogous in just the same

way as his conception of moral validity, and hence open to the same objections that it

is hubristic, finalist and counter-intuitive.

There is no doubt that Habermas sees democratic politics as oriented towards truth.

By ‘truth’ he means a context-transcending conception of validity, in this case

10


legal/political validity. This is evident in his criticism of Rawls for suspending the

truth question and adoption, instead, of the category of the ‘reasonable’.22 Further

evidence is his interpretation of the principle of majority rule in terms of a search for

truth among citizens.23 It is apparent, too, in his observation that a post-truth

democracy would no longer be a democracy.24 The crucial question is whether he

holds an argumentation-internal, epistemic-constructivist, account of truth in this

sense of legal/political validity. My contention is that he does. For one thing, an

epistemic-constructivist account is in tune with his concern to maintain a conception

of validity that is at once context-transcending and immanent to social practices of

using language communicatively, making no reference to ‘otherworldly’ authorities of

any kind; Habermas calls this ‘transcendence from within’.25 As already indicated,

epistemic-constructivist accounts of validity avoid any such reference. For another,

the analogy he draws between moral autonomy and legal/political autonomy and, by

extension, between moral validity and legal/political validity, strongly suggests an

epistemic-constructivist account.

Following Rousseau and Kant, Habermas ties moral autonomy to moral insight: the

moral autonomy of the individual resides in binding herself freely to the insights of

practical reason.26 He goes beyond Rousseau and Kant in making insight something

that is discursively achieved. Importantly, as we have seen, in addition to giving it a

dialogical character, he construes moral insight as discursively constructed: as

generated by way of an idealized procedure of moral deliberation.

Habermas defines legal/political autonomy in the same terms as moral autonomy. The

legal/political autonomy of citizens resides in binding themselves freely to formal

principles regarding the exercise of power, understood as the insights of practical

reason.27 These insights are to be achieved by way of discursive processes of will-

11


formation in which citizens agree on which principles are rationally acceptable. The

principle of democracy, which expresses this idea of autonomy, is formulated by

Habermas as follows: ‘[O]nly those statutes may claim legitimacy that can meet with

the assent of all citizens in a discursive process of legislation that in turn has been

legally constituted.’28

In sum, legal/political autonomy, like moral autonomy, has an epistemic component:

it is internally linked with insight, understood as knowledge that claims validity

(truth) in a context-transcending sense. Moreover, as in the case of moral autonomy,

insight is construed both discursively, as something to be achieved dialogically, and

as constructed, as something generated by way of (an idealized) discursive procedure.

This epistemic conception of legal/political autonomy complements Habermas’

epistemic conception of democracy: just as he construes legal/political insight as

discursively generated insight, he gives a dialogical and constructivist interpretation

to the concept of truth orienting democratic politics.

The epistemic dimension fulfils two important functions in his legal/political theory.

To begin with, it serves to guarantee the freedom-constituting character of the

democratic constitutional state, which makes the democratic bond more than just a

modus vivendi.29 In addition it secures the context-transcending, critical moment of

the democratic deliberative process that is an essential element of his theory.

Habermas distances himself from radically contextualist approaches to validity, which

reject the universalist orientation of claims to truth and moral rightness and restrict

their putative validity to the inhabitants of a historically specific, local context.30

Against such approaches, he asserts a concept of situated reason that raises its voice in

validity claims that are at once context-dependent and context-transcendent.31 He

gives the concept of context-transcendence a strong, universalist interpretation that

12


involves a moment of unconditionality.32 In his account of moral validity, as we have

seen, this moment of unconditionality is secured by way of the idea of a discursively

achieved consensus that is deemed to be ‘the single right answer’ to the problem at

hand and accepted as such by everyone for the same reasons. We have also seen that

unconditional validity is held to be discursively generated (under idealized

conditions); in my terms it is given a purely argumentation-internal (constructivist)

interpretation. Habermas also attributes a context-transcending force to legal/political

validity claims. I have contended that moral autonomy and legal/political autonomy,

and by extension moral validity and legal/political validity, are analogous in

depending on ‘insights of practical reason’, whereby such insights are to be

understood as discursively generated. Thus, the context-transcending force of

legal/political validity claims, too, must be understood in this strong universalist,

argumentation-internal, sense.

While Habermas cannot lightly dispense with the epistemic dimension of his

legal/political theory, he does not have to construe it in argumentation-internal terms.

Recall my objections to his argumentation-internal interpretation of moral validity:

that it is hubristic, counter-intuitive and finalist. In the case of legal/political validity,

we can add hostility to the inclusion of religious contributions to (formal) democratic

deliberations. For, as we have seen, constructivism interprets the epistemic quality of

the outcomes of deliberation in purely argumentative terms, leaving no room for

interpretations that account for it in terms of a source external to argumentation.

Insofar as religious believers favour argumentation-external interpretations of

epistemic quality, therefore, his constructivist conception of political legitimacy is

hostile to religious arguments. For all these reasons, it is worth exploring alternative

interpretations.

13


In conclusion I will suggest that an alternative interpretation can be extracted from

Habermas’ own writings on law and politics. Whereas the epistemic-constructivist

conception of democratic legitimacy fits best with the analogy he draws between

moral and legal/political autonomy concerning their shared dependency on ‘insights

of practical reason’, and is consonant with his emphasis on ‘transcendence from

within’, the alternative conception builds on his remarks on the differences between

moral validity and democratic validity, and corresponding distinction between moral

discourses and democratic discourses.

From Between Facts and Norms onwards, Habermas has emphasized the differences

between moral validity and legal/political validity (political legitimacy).33 One key

difference is that moral norms regulate interpersonal conflicts from the point of view

of impartiality and are strictly bound by the principle of universalizability; democratic

decisions and norms, by contrast, draw on moral, pragmatic and ethical

considerations.34 In other words, in moral deliberations the over-riding consideration

is universalizability of interests, but in democratic processes of will-formation there is

an interplay of diverse dimensions of validity; moral claims are not the only – or even

the primary – kind of validity claim raised by participants in formal processes of

democratic deliberation: pragmatic and ethical validity claims also come into play.35

This difference between moral and democratic discourses is reflected in a difference

between the criteria appropriate for determining epistemic quality in each case. In the

case of moral validity, the appropriate criteria are both procedural and substantive: we

must assess whether the procedure of argumentation meets conditions such as

inclusivity, fairness, sincerity and rejection of all force except that of the better

argument and also whether the outcome satisfies the principle of universalizability of

interests. In the case of democratic legitimacy, by contrast, the procedural requirement

14


remains the same, but the universalizability requirement is replaced by a requirement

of general acceptability – the requirement that all citizens must be able to assent to the

outcome.36 As indicated, the latter requirement – the requirement that the outcome be

acceptable to all citizens – involves taking into account ethical and pragmatic as well

as moral considerations. This considerably complicates satisfaction of the requirement

of general acceptability for, in democracies in which citizens have different and often

conflicting ethical convictions and commitments, it is unlikely that they will ever

reach agreement as to the general acceptability of substantive democratic decisions.

But the point is not just that agreement is unlikely in practice. My discussion of shifts

in perception that are due to factors independent of the exchange of reasons in

argumentation helps us to see that it applies even to idealized democratic

deliberations.

I have proposed an account of practical validity in which argumentation-external

factors may be involved in bringing about the changes in perception required for the

rational acceptability of validity claims. For our present purposes, it suffices for this

to hold for just one of the three kinds of validity claims that are in play in democratic

discourses. Ethical validity claims are the most obvious candidate here.37 Recall my

example of the arguments for vegetarianism; this was intended to show that the

rational acceptability of ethical validity claims may require a shift in perception that

comes about for reasons independent of the procedure of argumentation. If this is so,

the reasoning powers of participants in even a perfect procedure of democratic

argumentation would not suffice for finding the single right answer. In other words, if

the rational acceptability of ethical validity claims may depend on shifts in perception

that are not attributable primarily to the exchange of arguments, there can be no

15


guarantee that citizens would agree on the rational acceptability of substantive

democratic decisions even under conditions of the ideal speech situation.

In sum, as soon as we allow for subjective experiences in specific contexts as possible

co-determinants of rational acceptability, the conditions for generating

unconditionally valid knowledge (“truth”) no longer obtain. No matter how perfect

the argumentative conditions, in any given instance the rational acceptability of a

particular argument might depend on argumentation-external factors missing in that

instance. This would mean in turn that even perfect argumentative conditions would

not guarantee a consensus and, hence, that an argumentatively achieved consensus

could not produce truth. As we have seen, Habermas’ account of moral validity

makes moral insight depend essentially on the exchange of reasons in argumentation.

Even if we grant him this account, his account of ethical validity claims clearly leaves

room for argumentation-external factors as co-determinants of their rational

acceptability. Admittedly, Habermas’ account of ethical validity claims is far from

straightforward. Nonetheless, it is clear that he sees them as context-specific,

experientially based claims relating to the good life and the good society.38 By

admitting such claims into the democratic process, therefore, he allows for the

possibility that even a perfect argumentative procedure would not generate agreement,

in the sense of a “single right answer” reached by participants for the same reasons. If

he does so, accordingly, he cannot consistently maintain an epistemic-constructivist

conception of democratic legitimacy.

This means that if ethical considerations are at play in democratic discourses, and if

argumentation-external factors are taken seriously, Habermas’ theory itself calls for

an alternative conception of democratic legitimacy to the constructivist one he

favours. The latter’s three core ingredients of construction, consensus and (strong)

16


cognitivism would have to be abandoned or modified. Since rational agreement

cannot be brought about purely by way of the exchange of arguments, the deliberative

procedure could no longer be thought of as a procedure of construction: as designed to

produce an outcome that is generally acceptable. For the same reason, no consensus

as to an outcome’s general acceptability could be envisaged, even under ideal

justificatory conditions. Importantly, however, this does not deny the idea of

consensus a cognitive status.39 The alternative conception retains the cognitive-

consensual component of Habermas’ constructivist conception, but interprets it

differently in two key respects. First, whereas the constructivist conception sees

human beings as the makers of unconditional validity in the domain of practical

reason, the alternative conception sees them as capable of recognizing truth in the

practical sense. The relationship between consensus and (practical) truth is inverted:

whereas in the constructivist conception, a discursively achieved, rational consensus

produces (practical) truth, in the alternative conception, truth commands a rational

consensus. The intuition here is that if something is true, every rational person, who

had undergone the requisite shifts in perception would have to agree to it.40 The

second important difference is that the requisite shifts in perception do not have to

come about purely argumentatively. Whereas the constructivist conception defines

practical truth as the result of the exchange of reasons in an idealized procedure of

deliberation, in the alternative conception, the ideal conditions necessary to recognize

truth are not exclusively deliberative, but involve a complex mix of argumentation-

external and argumentation-internal factors, which are contextual and subject-related

and hence cannot be specified in advance.

This raises the question of how the exchange of arguments in public deliberation

contributes epistemically towards the search for truth. For if, in the alternative

17


conception, argumentation did not contribute epistemically toward finding truth in the

practical sense, it would be open to the objection that it uncouples democratic

legitimacy from public deliberation. Elsewhere, I attempt to show that the alternative

conception of democratic legitimacy does not do this.41 Showing how public

deliberation contributes epistemically towards democratic validity is just one side of

the challenge facing this alternative conception of legitimacy. The other side is to

show how truth in the sense of legal/political validity, manifests itself in political

deliberation. According to the conception I am advocating here, democratic

legitimacy is not constructed in democratic deliberations, but is rather a justification-

transcendent idea orienting such deliberations. It may be described as a regulative

idea.42 But regulative ideas serve not just to guide human practices, they also serve to

motivate them. In order to have motivating power, they must project the image of a

condition that is desirable. But what is projected as desirable must also be tangible,

however ephemerally. If the exchange of arguments in public deliberation did not

open up spaces in which truth appeared at least fleetingly to the parties engaged in

such an exchange, it would be hard to see why they would continue to pursue it by

way of argumentation. I can only flag the need for further consideration of this

question here.

To sum up: I have argued that Habermas’ account of democratic discourses, when

taken together with my discussion in the foregoing, pushes us toward a conception of

political legitimacy that is not defined in epistemic-constructivist terms. In this

alternative conception, democratic validity in the truth-analogous sense is a

justification-transcendent, regulative ideal that orients public deliberation on

democratic matters and manifests itself in such deliberation. Construed in this way,

democratic legitimacy is granted a logical independence of the argumentative

18


procedure. This alternative conception of democratic legitimacy is not only more

consistent with Habermas’ account of democratic deliberation as an interplay of

ethical, moral and pragmatic factors, it has a number of additional advantages: it

avoids the objections of hubris, counter-intuitiveness and finalism that I raised against

his epistemic-constructivist conception, it is congruent with the argumentation–

external idea of truth to which many religious believers appeal, and it places no

barriers in principle to the inclusion of religious arguments in processes of democratic

legislation and decision-making.

19

1 Habermas does not expect all religious believers to be able in due course to justify their political positions independently of the reasons given solely by their comprehensive doctrines. Rather, his expectation holds only for those who occupy public office (for example, politicians operating within state institutions) or who are candidates for such office. See Jürgen Habermas, Between Naturalism and Religion, trans. C. Cronin, Cambridge: Polity Press (2008), p. 128. By contrast, Rawls does seem to expect this of all religious believers. See John Rawls, ‘The Idea of Public Reason Revisited’. In S. Freeman (ed), John Rawls, Collected Papers, Cambridge, MA: Harvard University Press (1999). 2 Rawls is a prominent representative of this position. See John Rawls, Political Liberalism, A serious challenge to it is offered by Wolterstorff, who rejects the traditional liberal view that citizens should not base their decisions and debates concerning political issues on their religious convictions. Wolterstorff argues for a ‘consocial’ position that imposes no moral restraint on the use of religious reasons and interprets the neutrality requirement as requiring impartiality rather than a rigorous separation of church and state. In his view, the exclusion in principle of religious reasons from public law-making and decision-making processes is at odds with liberal commitments to equality and impartiality. This does not imply that the liberal democratic state may not exclude religious reasons; it means only that it should have a strong rationale for doing so. See Nicholas Wolterstorff, ‘The Role of Religion in Decision and Discussion of Political Issues’. In Robert Audi and Nicholas Wolterstorff, Religion in the Public Square, Lanham, London: Rowman and Littlefield (1997), pp. 67-120.3 My argument against the exclusionary position is complex, but has two main strands: i) an anti-privatization argument, which draws a connection between the privatization of ethical and religious concerns and their immunization against rational challenge, leading to epistemological and ethical authoritarianism on the part of those who hold the views in question; ii) a recognition-theoretic argument, which draws a connection between individual human flourishing and public recognition of the concrete content of individual ethical and/or religious commitments and convictions. See, for example, M. Cooke, ‘A Space of One’s Own: Autonomy, Privacy, Liberty’, Philosophy and Social Criticism, vol. 25, no 1 (1999): 23-53; M. Cooke, ‘Privacy and Autonomy’. In Privacies. Philosophical Evaluations, edited by B. Rössler, Stanford, CA: Stanford University Press (2004), pp. 98-112; M. Cooke, ‘A Secular State for a Postsecular Society? Postmetaphysical Political Theory and the Place of Religion’, Constellations, vol. 14, no. 2 (2007), 224-238; M. Cooke, ‘Beyond Dignity and Difference. Revisiting the Politics of Recognition’, European Journal of Political Theory, vol. 8, no. 1 (2009): 76-95; M. Cooke, Privatization or Pluralization? Reflections on Multiple Jurisdictions”, Philosophy and Social Criticism, vol. 36, nos. 3-4 (2010): 425-440.4 For example, Cooke (2007), ‘A Secular State for a Postsecular Society?’; M. Cooke, ‘Critical Theory and Religion’. In Philosophy of Religion in the 21st Century, edited by D. Z. Phillips, and T. Tessin, London: Palgrave (2001), pp. 211-243.5 Habermas, Between Naturalism and Religion, p. 129; Habermas, ‘An Awareness of what is Missing’, trans. C. Cronin, Cambridge: Polity Press (2010), p. 18 (check!)6 This element of his objection is implicit in his reference to a ‘dogmatic authority’.7 In a longer version of this essay, I also discuss the first and second components: M. Cooke, Violating Neutrality? Religious Validity Claims and Democratic Legitimacy”. In C. Calhoun, E. Mendieta, and J. VanAntwerpen (eds), Habermas and Religion, Cambridge: Polity Press (forthcoming).8 I leave aside the question of whether Habermas’ conception of ethical validity, too, is overly focused on argumentation. His conception of ethical validity is not straightforward. In some of his writings, he attributes to it a cognitive moment, moreover one that is tied to the idea of discursively achieved consensus (J. Habermas, ‘On the Pragmatic, the Ethical, and the Moral Employments of Practical Reason’. In his Justification and Application, trans. C. Cronin, Cambridge, MA: MIT Press (1993); J. Habermas, ‘Individuation through Socialization. On George Herbert Mead’s Theory of Subjectivity’. In his Postmetaphysical Thinking, trans. W. M. Hohengarten, Cambridge, MA: MIT Press (1992). At other times, he seems to offer a more subjectivist account of ethical validity.

For an early discussion of some of the ambiguities in his account, see M. Cooke, ‘Realizing the Post-Conventional Self”, Philosophy and Social Criticism, vol. 20, nos.1/2 (1994): 87-101.9 This schematic distinction calls for a number of qualifications and clarifications. In the longer version of this essay (see note 7 above) I mention some of the most important ones. 10 Habermas clearly attributes a transformative power to public deliberation. See J. Habermas, Between Facts and Norms, trans. W. Rehg, Cambridge: MIT Press (1996), pp. 312-3. See also my discussion in M. Cooke, ‘Five Arguments for Deliberative Democracy’, Political Studies, vol. 48, no. 5 (2000): 947-969, esp. pp. 958-959. However, as we have seen, he considers religious validity claims immune to this transformative force.11 I do not want to claim that a change in perception is always necessary in order rationally to accept the arguments for vegetarianism. Someone can be raised a vegetarian, for example. Nor do I want to claim that epistemically significant shifts in perception cannot be argumentatively induced in the case of vegetarianism. My point is merely that there are situations in which the epistemically relevant shift in perception is not due to the exchange of reasons in intersubjective deliberation.12 The case of ethical validity claims is more complex. See note 8 above.13 I will show this to be the case for moral and legal/political validity claims. Once again, his position regarding ethical validity claims is more difficult to ascertain. 14 Habermas, Truth and Justification, trans. B. Fultner, Cambridge, MA; MIT Press (2003), pp. 237-275, esp. 266-75. He also makes clear that he means ‘constructivist’ in Rawls’ sense of the term. Cf. J. Rawls, ‘Kantian Constructivism in Moral Theory’, Journal of Philosophy, vol. 77 (1980). 15 Habermas, Truth and Justification, p. 262 [German, Habermas, Wahrheit und Rechtfertigung, Frankfurt am Main: Suhrkamp, 1999, p. 301]. He writes: ‘The] unconditional nature of moral validity claims can be accounted for in terms of the universality of a normative realm that has to be produced […eines herzustellenden Geltungsbereichs’, trans. altered].16 Habermas, Truth and Justification, esp. pp. 247-9.17 Habermas, Between Facts and Norms, pp. 322-3.18 Habermas offers a postmetaphysical interpretation of this moment of unconditionality. Such an interpretation aims to avoid referring to ‘otherworldly’ ideas by understanding transcendence in purely immanent terms: as a movement beyond existing human practices that can be made sense of entirely in terms of human practices. J. Habermas, ‘Are There Postmetaphysical Answers to the Question: What is the “Good Life”?’ In his The Future of Human Nature, trans. H. Beister, M. Pensky and W. Rehg, Cambridge, MA: MIT Press (2003).19 Cf. A. Wellmer, ‘Ethics and Dialogue: Elements of Moral Judgement in Kant and Discourse Ethics’. In his The Persistence of Modernity, trans. D. Midgley, Cambridge: Polity Press (1991). 20 For some remarks on finalism, see M. Cooke, Re-Presenting the Good Society, Cambridge, MA: MIT Press (2006), pp. 162-164 and pp. 177-178. In the present essay I have merely hinted at an argument against constructivist conceptions of context-transcending validity. Developing such an argument is one of my current projects.21 Passing over some difficulties arising from Habermas’ tendency to conflate political and legal validity, I use the term ‘democratic legitimacy’ in a general sense to refer to the normative claim to political/legal validity raised for democratic processes and their outcomes.22 J. Habermas, ‘Reconciliation through the Use of Public Reason’. In his The Inclusion of the Other, trans. C. Cronin and P. de Greiff, Cambridge, MA: MIT press (2000), pp. 49-73. More recently, Habermas reproaches Rawls for renouncing the ‘claim to truth of a practical reason uncoupled from worldviews’. J. Habermas,‘A Reply’. In Habermas, Awareness of what is Missing, pp. 73-4 (check!).23 He describes the democratic principle of majority rule as retaining an internal relation to the search for truth and representing only a caesura in an ongoing discussion. Habermas, Between Facts and Norms, p. 179. The epistemic significance he attaches to majority rule is particularly interesting, since it indicates that his cognitive interpretation of political legitimacy is not confined to formal legal/political principles regarding the exercise of political power but extends to the

substantive issues under discussion in everyday legal/political deliberations. Cf. T. McCarthy, ‘Legitimacy and Diversity: Dialectical Reflections on Analytical Distinctions’. In A. Arato and M. Rosenfeld (eds), Habermas on Law and Democracy: Critical Exchanges, Berkeley, CA: University of California Press (1998).24 Habermas, ‘Religion in the Public Sphere’, pp. 143-4.25 Habermas, Between Facts and Norms, pp. 1-18 (check!); Habermas, ‘Are There Postmetaphysical Answers to the Question: What is the “Good Life”?’ 26 See M. Cooke, ‘Habermas, Autonomy, and the Identity of the Self’, Philosophy and Social Criticism, vol. 18, nos. 3/4 (1992): 269-291.27 J. Habermas, ‘On the Architectonics of Discursive Differentiation: A Brief Response to a Major Controversy’. In his Between Naturalism and Religion, pp. 77-97.28 Habermas, Between Facts and Norms, p. 110.29 Habermas, Between Naturalism and Religion, pp. 134-135.30 One of the most prominent contemporary proponents of radical contextualism is Richard Rorty. See Habermas’ critique of Rorty in his ‘Richard Rorty’s Pragmatic Turn’. In his On the Pragmatics of Communication, pp. 343-382. Cf. my critique of radical contextualism in Cooke, Re-Presenting the Good Society, pp. 25-36.31Habermas, Postmetaphysical Thinking, p. 139.32 Habermas, ‘Truth versus Normative Rightness’. In his Truth and Justification. Cf. M. Cooke, Language and Reason, Cambridge, MA: MIT Press (1994), esp. chapters 2 and 5.33 Habermas, Between Facts and Norms, pp. 104-118 and pp. 157-168. See also his ‘Postscript’. In Between Facts and Norms, pp. 451-2 and Habermas, ‘The Architectonics of Discursive Differentiation’, pp. 77-97. 34 Habermas, ‘The Architectonics of Discursive Differentiation’, pp. 93-94; cf. Habermas, Between Facts and Norms, pp. 166-8. With regard to the latter it should be noted that in his ‘Postscript’ Habermas admits that the schema he presents on these pages is misleading because it presents ethical, moral and pragmatic validity claims as the object of discourses that are independent of one another, whereas in fact these claims are bundled together in the process of political will-formation (p. 565, n. 3). 35 This is why he rejects what he calls moralistic misunderstandings of the democratic principle of legitimacy, on account of their subordination of law to morality. See his critical remarks on R. Alexy in his Between Facts and Norms, pp. 229-232, and on Apel in ‘The Architectonics of Discursive Differentiation’, pp. 77-97.36 Like Thomas McCarthy, I read Habermas as extending legal/political discourses to encompass substantive legal/political issues, as opposed to confining them to discussion of formal principles of democratic rule. This makes the requirement of general acceptability even less realistic as a goal for concrete political praxis. See McCarthy, ‘Legitimacy and Diversity’, p. (check!).37 In fact, I think my argument holds for moral validity claims as well as ethical ones (and religious ones), but I will not pursue this point further here. 38 Habermas, “On the Pragmatic, the Ethical, and the Moral Employments of Practical Reason”.39 Nor does it rule out the possibility of consensus.40 I leave open the question of whether a discursively achieved consensus indicates truth, in the sense of pointing towards it. This seems to be Habermas’ position with regard to empirical truth. As he puts it: ‘[…] rational acceptability […] indicates the truth of a proposition’. Habermas, ‘Richard Rorty’s Pragmatic Turn’, p. 381, n. 55. 41 See the longer version of this paper as detailed in n. 7 above.42 I discuss what it means to see legal validity as a regulative ideal in M. Cooke, ‘The Dual Character of Concepts’. In M. Klatt (ed), Institutional Reason: The Jurisprudence of Robert Alexy, Oxford: Oxford University Press (2012).

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