ABAD I NINET y MONTSERRAT MOLAS 2009 Habermas and Ackerman. A Synthesis Applied To The Legitimation and Codification of Legal Norms

Ratio Juris. Vol. 22 No.
4 December 2009 (510–31)
Habermas and Ackerman:

A Synthesis Applied to the
Legitimation and Codification
of Legal Norms* raju_438 510..531
ANTONI ABAD I NINET AND JOSEP MONSERRAT

MOLAS**
Abstract. In this article we consider certain elements of the normative theory of

Jürgen Habermas in the light of the proposals of Bruce Ackerman, with a view to
strengthening a concept of deliberative democracy applied to the legitimation of
juridical rules. We do not construct a hierarchy of the two positions, but seek to bring
together certain elements to achieve a common project. As the starting point for
examining the work of the two authors, we take the scheme proposed by Habermas
in Faktizität und Geltung. In this connection, through the work of Ackerman, we
intend to fill in some of the gaps that Habermas appears to have left in the theory of
radical democracy applied to the law. The work of Ackerman can make a significant
contribution to deliberative democracy, to the discourse principle that Habermas
defines, and to the contractualist theories from a liberal perspective. The study of
these contributions makes possible a critical judgment that enables the legitimation
of juridical rules carried out by Habermas to acquire greater practicity. In examining
the epistemological status of juridical science and law, we attempt to determine the
weight and the performance of normative democracy. In Tarr’s view, it is a matter for
philosophers to examine direct democracy and its desirability.
In this article we compare specific elements of Jürgen Habermas’s norma-

tive theory with the proposals of Bruce Ackerman, in order to consolidate
a concept of deliberative democracy applied to the legitimation of legal
norms. Unlike other proposals we do not aim to evaluate the relative
* This paper is a result of the Research Project financed by the Spanish Dirección General de
Investigación del Ministerio de Educación y Ciencia (Ministry of Education) HUM2007-62763/
FISO.
** Research Group EIDOS. Hermeneutics, Platonism and Modernity (Universitat de
Barcelona).
© 2009 The Authors. Journal compilation © 2009 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and
350 Main Street, Malden 02148, USA.
Habermas and Ackerman 511
merits of the two positions, but, by uniting some of their component parts,
we aim to construct a common project. Our starting point is the program
introduced by Habermas in Faktizität und Geltung. We use Ackerman’s
work to fill in some of the gaps that, we contend, Habermas leaves in his
theory of radical democracy applied to law.
Ackerman’s work is an important contribution to the process of delib-
erative democracy and to the principle of discourse as defined by Haber-
mas, as well as to contractualist theories presented from a liberal
perspective. Here we offer a critique of his proposals and attempt to make
Habermas’s legitimation of legal norms more applicable in practice.
1. Habermas’s Normative Theory

In spite of the affirmations of certain positivistic authors, self-proclaimed
defenders of democracy applied to the law, Habermas’s normative theory
actually predates the publication of his Faktizität und Geltung (Habermas
1998). In our view, certain components of the largely forgotten theoretical
part of Habermas’s work are positive, and worth reviving, especially the
possibility of applying democratic processes to the codification of laws
without necessarily excluding morality from the system. In our opinion,
the normative contents of works such as Theorie und Praxis, in which
Habermas defines the concepts of natural law, positive law, and the process
of codification of legal norms, cannot be rejected on positivist grounds or
on the contention that Habermas had a negative vision of law. In Theorie
und Praxis, the author dedicates a whole chapter to natural law and to
revolutionary declarations of natural rights, placing special emphasis on
the process of positivization of these kinds of rights from a philosophical
perspective (Habermas 1969).
Nor should we ignore the legal and normative importance of Haber-
mas’s Theory of Communicative Action (Habermas 1985), in which he devel-
ops the Weberian concept of rationalization and explores how this process
affects the law, and defines juridification. Although the Theory of Commu-
nicative Action is not only a legal work and its legal concepts and theories
are developed alongside social and philosophical theories, it deals with
important legal definitions, such as natural law, positive law, and modern
law. Habermas affirms that modern law is a concept that is still in need of
a moral justification able to gauge the validity of its legal norms; modern
law, whether understood as a means or as an institution, has a need for
moral justification. Therefore, a hierarchical parity between ethical, juridi-
cal, and moral norms is clear. Habermas distinguishes between positive
legal norms and norms that are not already positivized; the latter are
norms of natural law, located at the top of the hierarchical scale of norms.
Habermas’s third work that deals with normative issues is Die nach-
holende Revolution (Habermas 1990a), in which he introduces for the first
Ratio Juris, Vol. 22, No. 4 © 2009 The Authors. Journal compilation © 2009 Blackwell Publishing Ltd.
512 Antoni Abad I Ninet and Josep Monserrat Molas
time the concept of the legitimation of law which he goes on to develop

later, and discusses the political consequences that the procedure of legiti-
mation entails. Die nachholende Revolution continues the conceptual criticism
of positivism which Habermas maintained throughout his work. Though
Die nachholende Revolution is a kind of bridge between the two main parts
of Habermas’s normative theory, it defends the same position on legal
rationalism and the need for a relationship between law and morality,
conceiving morality as a necessary component of the legitimation of
specific legal norms.
The normative content of these studies has been denied or ignored by
authors like Melkevik, on strictly positivistic grounds (Melkevik 2001).
This doctrinal school considers the injection of a dose of rationality in all
areas to be positive and advocates the total separation of law and moral-
ity. It is not the object of the present paper to participate in the eternal
controversy between positivists and iusnaturalists that Robert Alexy
describes so well (Alexy 2005), but we would just say that to deny the
normative content of Habermas’s work before the publication of Faktiz-
ität und Geltung is to alter the substance of his theory and to ignore core
elements of his thought.
In Faktizität und Geltung, a work that is basically legal in content,
Habermas introduces a radical change in his conception of positive and
natural law that modifies the process of legitimation of legal norms and
alters the relationship between legal norms on the one hand and moral and
ethical norms on the other. In order to sustain the ideal construction of his
theory, we argue, Habermas falls into a theoretical contradiction, produced
to an extent by the move from a iusnaturalistic trend to iuspositivism. For
Kettner, Habermas’s discourse on ethics disappears with Faktizität und
Geltung (Kettner 1992, 33). Codification, which was considered as some-
thing that limited freedom and was always in need of ethical support and
moral norms in order to legitimate legal norms, is finally seen as the only
procedure capable of doing so; all the connotations and relations between
law and ethics and morals are removed. Habermas eliminates any external
relation of the law, which allows us to qualify the theory as a positivist one.
The main goal of Habermas in Faktizität und Geltung is to reconcile the
concept of law with that of justice, and to reconcile democracy with law.
Habermas understands the law’s legitimation as a source of self-imposition
and obligation. The law is a bridge that unites democracy and legal norms.
The legal norms that are the result of this sort of self-imposition and
obligation must successfully reconcile legal and de facto equality (Rosenfeld
and Arato 1998, 5). Habermas seems to confuse the concept of Right (Recht)
with the concept of Law (Gesetz) and the concept of justice with legality. In
our view, Habermas’s formulation of the legitimation procedure is incon-
sistent in several essential aspects, and needs to be examined. Habermas
considers that the source of every legitimate law lies in the democratic
© 2009 The Authors. Journal compilation © 2009 Blackwell Publishing Ltd. Ratio Juris, Vol. 22, No. 4
process of the production of the law linked to the principle of popular

sovereignty.
At this point, we should stress that in spite of the criticism we present
here, we consider the stimulation of direct citizen participation in the Res
Publica and the assumption of responsibilities by citizens in the public
sphere to be very positive. As Baxter states, in Faktizität und Geltung
Habermas presents and explains the existing tension between the factic-
ity and the validity of law, using as arguments the political and legal
ideas of Kant and Rousseau, and goes on to create a strategy for rec-
onciling the two conditions (Baxter 2004, 483). Our critique is based at
all times on our recognition and admiration of Habermas’s work and
all the “theories of responsive democracy” applied to citizenship
(Michelman 2005; 1997).
The central premise of Habermas’s theory of law and democracy is the
principle of discourse. This principle implies that norms will be legitimate
when free and equal citizens deliberate and make decisions, in such a way
that all can agree to them without coercion or distorted beliefs. According
to this principle, the validity of a decision is related to a “rational
consensus”; norms are valid only if those affected can agree to them as
participants in a rational consensus (Habermas 1998, 138). For Habermas,
the introduction of this principle presupposes that practical questions can
be impartially and rationally decided (Habermas 2002, 501–20).
The legitimacy of the law, therefore, will be based in the final instance
on a communicative mechanism. This is the point where the communica-
tive action theory and the procedure of the legitimation of norms presented
in Faktizität und Geltung are linked. Habermas recognizes that his principle
of discourse supposes an increase in rationalization, and this new overdose
of rationality is justified by the theory of argumentation. It would seem,
then, that Habermas finally understands the law’s rationality as unavoid-
able and, because of the magnitude of his project, something that he is
ready to accept.
The other principle that Habermas introduces in his normative theory in
Faktizität und Geltung is the principle of democracy, which consists in the
uniting of the wills of citizens in acceptance of a legal norm that will be
applied on their behalf. As Habermas states, the main idea is that the
principle of democracy is due to the link of the principle of discourse with
a legal content, understanding this fusion as a logical genesis of rights,
which must continue their gradual reconstruction. In our view, the implan-
tation of a foreign discourse in the legal sphere raises problems for the
theory. Habermas defines the purpose of the principle of democracy as
establishing a legitimate procedure for the production of laws. We can only
claim legitimate validity for legal norms on the basis of a legally articulated
discourse, to which all the members of the juridical community affected by
the norm give their consent (Habermas 1998, 175).
The principle of democracy presupposes the possibility of deciding

rationally on practical questions and of making all kinds of possible
discourses from which laws derive their legitimacy. Consequently, the
resulting legal norm will be considered as a law because of the procedure
by which it has been approved, and not as a result of its final content.
In relation to this new position for morality in Faktizität und Geltung,
Habermas does not renounce the universal values contained in human
rights. Therefore we could say that his intention is to exclude morality
from the theory, but he finds that he cannot do so entirely, because he has
a need for the role that morality plays in the foundation of universal rights.
This contradiction affects universal rights—hierarchically, the most impor-
tant rights of all, which should be the main focus of his work. Perhaps this
contradiction is a consequence of taking the State as a basis of his enquiry.
Habermas thinks of the State as an entity to which to apply his theory, and
when he attempts to found cosmopolitan law and a kind of universal
constitution he makes certain omissions that affect the entire system. The
replacement of morality by universal rights appears to be no more than a
question of terminology: That is, Habermas requires morality in his system
and he merely gives it another name. This is the source of the inconsistency
in his proposal for the legitimation of universal rights, which must
necessarily act with a moral value. In our view, the moral justification of
specific norms is not an anti-democratic stance, as Melkevik seems to
indicate (Melkevik 2001).
In this paper we will not present a detailed discussion of the well-
known principle of discourse or of the principle of democracy, but only
of the critical elements which, in our view, can be completed by Bruce
Ackerman’s work. Both authors propose a new examination of contem-
porary constitutions and their constituent systems, focusing on different
kinds of democratic justification, and offer a procedural model of demo-
cratic legitimation. In both theories, legitimation is granted by public
deliberation.
In our view, then, Habermas’s main project—correcting the lack of
democracy in the application and codification of the law, and introducing
citizens into the process of the legitimation of norms—is still to be
completed. Ackerman’s work provides the best tools for improving Hab-
ermas’s project. In the following section, we analyze these proposals for
improvement, which will be possible if we place the debate in a philo-
sophical perspective that allows us to consider the political and legal
implications of both theories.
2. The Need To Complement Faktizität und Geltung

The first critical element to analyze is the application of the principle of
discourse to the legitimation of legal norms. The principle of discourse is
applied to the field of law without considering the specialization of legal

language or the diverse meanings and legal consequences that a word can
have. Ackerman solves this problem with the theory of neutral dialogue.
Habermas, on the other hand, starts from a direct concept of dialogue
subjected to principles of rational argument, and therefore does not consider
what dialogue in relation to law in present-day societies should be like; he
submits dialogue to the rationality filter that should motivate every kind of
decision and argument used in the deliberation system. Ackerman affirms
that the best way to understand the liberal tradition is precisely by trying to
define and justify the strength of the power of speech. The notion of
constraint can be considered as the organizing principle of liberal thought
and as the basis of the liberal state. Political talk in a liberal state is a device
to persuade people who are otherwise free to understand the concept of
good in very different ways. Ackerman continues by stating that liberal
theory invites people to resolve their substantive disagreements and achieve
a deeper unity through a common process of dialogue (Ackerman 1980, 359).
Ackerman considers that, in spite of this limiting characteristic, it is
possible to govern the world through dialogue. After analyzing the impor-
tance of dialogue in the modern world, Ackerman introduces the concept
of neutral dialogue that should rule in modern, liberal societies (ibid.,
359–60). In these societies, in which we find a similar dialogue to the one
used by Habermas in his ideal theory, this idea of constraint is eliminated.
This type of neutral dialogue has to guarantee the following fundamental
aspects of the liberal State, which will allow a kind of equality of oppor-
tunities and a kind of real equality as its starting point.
The concept of neutral dialogue starts from the following assumptions:
a) No citizen is genetically superior to another. One of the basic requirements
to be able to speak of dialogue in neutral conditions is to affirm that there
are no differences with regard to genetics, or indeed to any other aspect
like race, religion, or language. b) Each citizen receives a liberal education.
Education has to provide the basis of liberal principles for the citizens of
the State. In relation to education, we should stress the risks of an
education that is rationalized and normalized in the Foucaultian sense. c)
Each citizen starts his adult life under conditions of material equality. For some
critics this requirement is utopian, and places the theory of Ackerman at
the same ideal level as Rawls’s veil of ignorance or Habermas’s infinite
dialogue, even though the resolution of material equality is made more
feasible if considered as a requirement to guarantee the conditions for an
equality of opportunities; this is the basis of the importance that Ackerman
attributes to social justice.
Unlike Habermas, Ackerman analyzes the relation of dialogue to law in
modern societies; he establishes a system in which the idea of constraint is
eliminated without having to rationalize either the result or the arguments
used. In spite of the assumptions that Ackerman makes to ensure neutral
dialogue in specific conditions, he cannot guarantee its practicability or

effectiveness; however, we can apply it to Habermas’s normative theory in
order to introduce improvements. The application that we propose will
represent a step forward in the attempt to draw specific, time-constrained
conclusions for citizens in the public sphere. It may confer a certain realism
on the deliberative principle of democracy applied to the legitimation of
norms, all the more so if we consider that the neutral dialogue theory is
similar to the one that Habermas conceptualizes, even though Ackerman
focuses on the political, not the juridical field. For Ackerman a basic principle
is neutrality, to the extent of considering it as a starting point of his theory.
The concept of neutrality, together with the principles of consistency and
rationality, must guide liberal dialogue. All discussions of the legitimation of
power relations must be submitted to the neutrality principle that limits the
sort of arguments that will be acceptable in a liberal debate. No reason is
good if it requires force to affirm: a) that the argument used is better than
another expressed by a fellow citizen, b) that the concept of good (the
argument) is intrinsically superior to (an)other argument(s) proposed by the
fellow citizens. Though, as we have said, this statement does not represent
the definitive solution to the problem in relation to the concept of dialogue
applied to Habermas’s theory, it may represent a constructive criticism,
because it is closer to a recognition of the decision-making process that is
always involved in the positivization of a norm.
3. The Peculiarity of Legal Language

We consider that the nature of legal language may have direct repercus-
sions for the principle of democracy, and therefore we should at least
qualify the direct application of this principle to the field of law. Habermas
does not establish any type of speciality for legal language because he
reduces the concept simply to language in general, without taking into
account the fact that legal language has a series of characteristics of its
own. Consequently, as Pattaro asserts, Habermas reduces the concept of
legal discourse to linguisticity (Pattaro 1978; 1987). As stated above, the
theory of legitimation of law does not accept any differentiation between
internal and external legal culture, and rejects any sort of specialization of
legal discourse. Habermas applies a foreign discourse to the law in order
to legitimate legal norms and general legal principles regardless of their
hierarchical rank. The practical inviability of Habermas’s position from the
legal standpoint derives from the very nature of the normative idealism of
his theory, but furthermore, it must be possible to consider this ideal theory
as a benchmark. This is particularly difficult given the way in which
Habermas configured his theory. To do so, we consider that Ackerman’s
work, though an ideal work, can contribute to making Habermas’s theory
a benchmark in the legal field.
In law, we find propositions that can be qualified as metalinguistic. The

linguistic analysis of legal norms involves, among other things, their
interpretation (Bobbio 1960).
Inevitably, legal norms establish their own interpretative criteria, differ-
entiating between those that are interpretative and those that are not.
We consider that the application of Ackerman’s constructivist theory of
language to the Habermasian principle of discourse would be a good
theoretical exercise in order to improve the principle of democracy and the
democratic legitimation of legal norms, and even to propose a more
responsive democracy. To do so, we must take into account Ackerman’s
definition of the concept of dialogue. He establishes two varieties of legal
discourse: the discourse of reactive legislation, and that of interventionist
legislation. The use of one or other type will depend on the role granted
to the law in society. Reactive legislation is generated by social, economic,
or political agreements produced in society. In this kind of legislation no
legal debate is acceptable if it requires the jurist to question the social
agreements mentioned (Ackerman 1984, 44). Therefore, the jurist, making
use of Habermas’s terms, will be guided by the de facto existence of a social
act and not by the validity or legitimation of a particular social agreement.
This category of legal discourse reacts to social agreements; it does not
intervene or generate them. The consensus on dialogue in Ackerman is not
based on a sociological understanding of the contextual distortions caused
by the instrumental and institutional power. In this kind of legal debate,
dialogue is limited to the reactive imperative and to the evaluation of
specific actions against the background of a prevailing social practice; the
legitimacy of a practice will never become a legal question (Casebeer 1994).
In the legislation based on reactive discourse, with reference to the law
the only decisive question raised is whether the sanctionable conduct does
not comply with the institutionalized positive norms. The legitimacy of
legal norms per se is not questioned. The syllogism that is produced is
direct: Social agreement as a premise and legal discourse as a consequence;
the order or the content of the initial premise can never be altered.
The other kind of discourse is based on interventionist legislation. This
discourse is not limited to the appraisal of individual acts against the
background of the presumably legitimate social practice. Habermas and
Ackerman both support a kind of interventionist legal discourse, because
the application of legal rules questions the legitimacy of agreements of all
kinds. This type of legal discourse is the one that affects the constitutional
norms of the State (Ackerman 1998).
4. Constitutional Politics and Normal Politics

Another core element of Ackerman’s theory in relation to the dialogue
used by citizens when participating in law is the distinction he makes
between constitutional moments and normal moments. Constitutional

moments occur very rarely, at times when “We the People” speak using
extraconstitutional means to make fundamental changes in the Constitu-
tion (Nedelsky 1994, 500–15). These situations are characterized by the fact
that an unusually high number of citizens are convinced of the seriousness
of the matter under discussion (far greater than in the case of decisions to
be taken in normal times), by the fact that all citizens have the opportunity
to express their own views on the question, and finally by the fact that a
majority supports a specific way of solving the question (Ackerman,
Rosenkrantz, et al. 1991, 16). Unlike other authors, Ackerman considers
that the constitutional moments arise only at times of political upheaval,
and in fact only very rarely: He sees only three important constitutional
moments in the history of the United States.
Ackerman establishes a kind of formal criterion to determine whether a
particular moment should be defined as constitutional or normal. This
formal criterion is decisive. The distinction between normal and constitu-
tional moments turns out to be (at least) three distinctions mapped onto
each other. Normal moments are managed by elected representatives,
while constitutional moments are managed by the people; normal politics
are not particularly reflective, whereas constitutional politics are; normal
politics involve the pluralist pursuit of group interests, while constitutional
politics involve principles and the common good (Herzog 1999, 467–79).
Constitutional politics also play a role in altering the framework in which
normal politics develop: That is, constitutional moments not only differ
from the periods of normality that precede and follow them, but must
also ensure that the two phases of normal politics, before and afterwards,
are totally different. The constitutional moment is thus marked by dis-
continuity and transformation (Walker 2003). Constitutional moments are
extremely rare, occurring only at key political moments; they have long-
lasting constitutional effects (even though the constitutional moment is
only temporary) and, most importantly for the present study, the citizens
who aim to effect a constitutional transformation act directly.
The other kind of political moment is the normal moment. In normal
moments we include the everyday decisions taken by the government;
there is no debate or popular mobilization. The electorate entrusts the
management of legal matters to the government, and the government,
legitimated by this mandate, takes the decisions that it believes most
appropriate. In normal moments, a “united” population allows democrati-
cally elected groups to take political decisions.
For Ackerman, we should treat normal moments—that is, the situation
in which the people decide to withdraw from politics—with the greatest
respect. The people delegate power to their representatives, who may be
substituted through the appropriate democratic procedures. Therefore,
normal politics is as important as constitutional politics for the stability
and necessary continuity that every legal system needs. As noted above,
the purpose of the constitutional moment is to affect a specific normal
moment in a direct way, and to produce a different new normal moment.
In normal politics Ackerman stresses that the lack of debate and popu-
lar participation does not necessarily vitiate the legitimacy of the
decisions taken by the government if specific institutional conditions are
satisfied. These conditions are, first, that the representatives of the people
are responsible for their decisions. This statement is a sort of responsive
democracy applied to the people. The best way to construct a complete
responsive democracy is to start with the representatives; second, that the
institutional structure obliges the people’s representatives to take decisions
with regard to a broad vision of the public interest; third, that a legislation
should be established that stops interest groups from entering government
in order to obtain unfair advantages. These conditions demonstrate that it
is possible to make a theory that is less utopian than Habermas’s, when
introducing more democratic contents into political life in general, even if
they are aimed at the representatives.
In our view, the theory and experience of constitutional and normal
politics should be studied carefully if we want to implement Habermas’s
theory of deliberative democracy, since citizens have direct access to the
promulgation of the fundamental laws of their State, without intermedi-
aries. However, the study of how “the people” have acted directly in
constitutional and normal moments must start by distinguishing between
the types of norms to be codified; this is why the distinction between
normal and constitutional politics is so important. This differentiation will
help us to understand that the dialogue among citizens will vary according
to the type of legal norm to be codified and the political climate of a
specific society, and that a general acceptance of the principle of discourse
cannot be established without taking these elements into consideration.
5. Dualist Democracy
The differentiation between the two types of political moments is part of
the analysis of the concept of dualist democracy. Dualist democracy
distinguishes between the decisions taken by the government and those
taken directly by the people. Therefore, the concept of dualist democracy
rests on the difference between constitutional and ordinary politics intro-
duced above. The opposite of the dualist theory of democracy is the monist
theory. Ackerman describes these two contradictory approaches in order to
provide a synthesis. Monism sees the task of constitutional theorizing as
the reconciliation of the authority of unelected life-tenured judges to
invalidate legislation with the US’s primary and fundamental commitment
to democracy. The usual monistic solution is the assumption of legislative
validity (Posner 1992, 68–79).
Monist democracy consists in the basic idea that democracy requires

government by the representatives chosen by the people. These represen-
tatives have been conceded full power to pass laws, insofar as the choice
has been freely made. The most important institutional consequence of the
theory of monism is that in the period between elections any attempt to
reduce the government’s powers is seen as antidemocratic. The idea of
monism is very simple and attractive to anyone who believes in democracy
and popular representation and, therefore, in the anti-majority nature of
judicial resolutions. For monism there is no democratic authority other
than a democratically chosen parliament. For this theory, the basic distinc-
tion that dualism makes between the decisions of the people and the
decisions of the people’s representatives makes no sense (Ackerman,
Rosenkrantz, et al. 1991, 19).
Ackerman reminds us that democracy has been conceived for citizens
and that the system must allow their direct participation. Throughout
history, and especially in the last two centuries, society has adopted the
term “democracy,” but has reduced it to banality. The transformation took
place after a radical reconceptualization: The image of the Athenian polis
has been removed from the center of democratic thought and practice. The
US Constitution played a role in this transformation. Publius rejected the
image of the Greek polis as a model of popular government in the modern
age, and offered dualism as an alternative (Ackerman 1993, 295; 1998,
414–6).
In voting for normal politicians, private citizens do not see their votes as
signifying their consent to a change in fundamental principles; if this
possibility of change is appreciated, the general public must be informed
and given a fair chance to deliberate on the transformative propositions;
otherwise, the elected politicians cannot assume that they have received
the people’s support for their cheap talk of a brave new world (ibid., 307).
In this regard, the lack of expectations and possibilities of real changes
are the causes of the citizens’ lack of participation in democratic elections.
This lack of participation is an issue that must be addressed if electoral
results are to be considered legitimate.
Ackerman considers that the system of dualist democracy can offer a
kind of alternative to this erosion of democratic values. Dualist democracy
intends to attract the citizens’ initiative in liberal societies and to channel
it into public life. Viewed from this angle, the US Constitution is naïve in
its treatment of private citizens (ibid., 240). Most political institutions are
established for ordinary periods, times when the majority of the citizens
are not concerned with the public good; legislative and executive actions
do not reflect the people in their collective capacity. The representation in
a large republic reduces the chances that any single faction will win control
and helps to produce legislators who are at least partially devoted to the
public interest. Drastic constitutional changes are possible when, during
periods of constitutional politics, the people show their continued and

strong support for such change. During these periods, private citizens
become private citizens (Greenawalt 1994. 480–99).
Dualistic democracy rests on a conception of “private citizenship” that is
somewhere between the pervasive privatism that civic republicans
denounce and the public-spiritedness that Ackerman’s theory requires
(Galston and Galston 1994). Ackerman considers the premise upheld by
many private citizens: “What is good for me is good for my country” to be
wrong. He holds that only the second question is “really” important; that
is, should there be a clash of interests only the second question, what is
good for the country will prevail. He explains how to identify the occasions
on which the public and the private good diverge, and correctly affirms
that the way to be a perfect privatist might involve responding to an issue
on the public agenda (Ackerman 1993, 298).
Ackerman considers that dualism will emerge, sooner or later, in the
democratic system. Moreover, there has to be a sort of deal between
personal freedom and the constitutional (revolutionary) history of the U.S.
(ibid., 297).
One of the criticisms of Ackerman’s conception has to do with the
people’s lack of awareness when making a constitutional reform. That is to
say, even though a constitutional reform may be produced at a constitu-
tional moment, the people are not directly aware of the principles of
constitutional reform that the situation creates (Posner 1992, 68–79). This
awareness is crucial from a historical perspective in the exercise of popular
sovereignty, especially in revolutionary moments, and in the effect of these
moments on the establishment of rights (Barber 1996, 352).
Ackerman completes the concept of dualist democracy based on a new
Bill of Rights, that is, on an effective guarantee of equal opportunity in
schools, at work, and in the public arena (Ackerman 1993, 319). The idea
of dualist democracy is shared by Rawls and has similar effects to those
sought by Habermas through his principle of deliberative democracy.
In his deliberative theory, Habermas makes a kind of reverse monist
theory, that is, he excludes the representatives from any type of role in the
codification process.
In relation to dualist democracy there are strong similarities between
Ackerman’s and Habermas’s theories. Both authors propose a new exami-
nation of contemporary constitutions and their constituent systems, focus-
ing on the different sorts of democratic foundation; both offer a procedural
model of democratic legitimation, and, finally, in both theories legitimation
is granted by public deliberation. The difference between the authors lies
in the key point that Ackerman proposes: the strict separation between
constitutional experience and the ordinary politics of citizens. Habermas’s
theory, in contrast, is more dynamic and open to the public deliberation of
citizens. According to Vargova, Ackerman’s strict dualism permeates and
divides the spheres of politics, law and the social life of the liberal
democracy, constructing a normative hierarchy and a politically and
socially divided society, while Habermas establishes a concept of dynamic
dualism, distinguishing not only between informal and formal discourses,
but also between the “public sphere at rest” and mobilized social
movements (Vargova 2005, 365). In addition, unlike Ackerman, Habermas
advocates dynamic and reflexive interchange between citizens.1 We dis-
agree. In our view, Ackerman’s theory, with its inclusion of second gen-
erations, the necessary respect for minorities, and the elements required to
consider oneself as a liberal citizen, is far more realistic and is a far more
reliable basis for a universal theory. We cannot assume that the differen-
tiation between constitutional and normal politics is a simple distinction
between formal and informal discourse. The defense and exposition of
Ackerman’s dualist theory is the best ground for a real universal and
public sphere, and a genuine defense of democracy. Ackerman’s dualism
shows a genuine confidence in one’s fellow citizens, and renews the
essence of democracy in the Athenian sense, correcting many of the
shortcomings one finds in constitutions around the world.
6. The Public Sphere

Habermas begins his discussion of the concept of “the public sphere” by
considering its background. The concept originates in Greek thought,
which made a strong division between the public and the private, where
the oikos occupied the private realm, and freedom was to be found in
public, though of course the public realm of autonomous citizens rested on
the private autonomy of each as the master of a household. The bourgeois
public sphere that Habermas explores shares some features with this
picture (Calhoun 1996, 6). In the development of the separation of public
and private space, the idea of civil society appears. This concept is basic to
the understanding of the concept of the public sphere in Habermas. For
him, the public sphere is the discursive arena in which debate, deliberation,
agreement, and action take place (Villa 1992, 712–21). Therefore, the public
sphere in Habermas is the public space in which his discursive model is
applied, where the citizens deliberate on their common affairs; it is an
institutionalized arena of discursive interaction. This arena is conceptually
distinct from the State; it is a place for the production and circulation of
discourses which may, in principle, be critical of the State (Fraser 1996,
110). Habermas affirms that the principle of deliberative democracy can
work only if communication in the public sphere does not coincide with
1
Other authors claim that there have been more than three constitutional moments in the
last 200 years in the U.S., and that specific judicial rulings have had the same effect as
constitutional moments without public convulsion; see McConnell 1994 or Nedelsky 1994.
the institutionalized opinion in parliamentary bodies (Habermas 1998).

Therefore deliberative practice distinguished between the opinion that is
institutionalized in legal procedures and programmed to reach decisions
and the opinion created by informal channels of communicative politics
and which is formed in the political or legal arena (Baynes 2002, 18).
In Faktizität und Geltung, Habermas applies his conception of public
sphere to the law, and creates a specific kind of legal public sphere.
Citizens freely debate and agree on the contents of the legal norms that will
be applied.2
The application of the concept of the public sphere to the body of law
in Habermas is not a simple process; he describes the public sphere as a
place where public opinion is formed, but not one where decisions are
taken (Habermas 1998, 440). At this point it is vital to emphasize Haber-
mas’s theory of the construction of the rational will and the possible effects
of this theory on citizens in the public sphere.
Following Hannah Arendt, Habermas holds that the public sphere is a
“social space that generates communicative action” (Sitton 2003, 190), a
social space that is constituted when persons interact through acts of
speech and do not simply react in a strategic way. Therefore the public
sphere is a necessary component in Habermas’s normative project, since it
acts as an agora in which all those affected by a legal norm are able to
express their opinion.
7. The Eternal Dialogue

Other critical elements that we should highlight with respect to Haber-
mas’s formulations are the need for unanimity in the approval of the legal
norms, in addition to the ideal demands of universality and timelessness.
Unanimity is a conditio sine qua non and from a legal point of view places
the theory on a strictly theoretical footing, not a practical one (though this
does not imply that unanimity is not a model to be followed).
As Seyla Benhabib affirms, the application of a rule of consensus based
on the criterion of unanimity makes us suspect that this requirement will
be met only if minority points of view are silenced (Benhabib 1996, 77).
Unanimity is a general requirement that rests on the basic idea of the
citizens’ self-legislation. Citizens are subjected to the law as addressees, but
at the same time should also be understood as the creators of the law. In
order to put the idea of self-legislation into practice, citizens must reach a
unanimous consensus using rational speech.
Habermas’s theory rests on a strict ideal recognition of the autonomy of
the participating individuals. This recognition must be produced among
2
Habermas’s work on the concept of public sphere is very extensive and detailed in several
publications; Habermas 1990b.
the citizens who participate in the process of approving the rule, and must
not suffer interference from public opinion. Habermas presupposes the
existence of this particular sphere of autonomy, which will presumably be
respected by all the participants. He does not mention that this autonomy
implies that the citizens must possess certain characteristics, such as a
capacity for practical reasoning. The citizens must be able to reach con-
clusions collectively, even when these agreements may prejudice their own
interests. Nor does Habermas mention the special need for respect for
other participants in the approval of a positive legal norm which will affect
them. His intention is to grant the maximum level of democratic legitima-
tion to legal norms. From a real practical perspective, unanimity seems to
be rather utopian, even though it may be maintained as a reference point
of the ideal situation. Habermas does not mention any system of repre-
sentation because he is looking for a direct, universal democracy applicable
to law. The fact of having to choose a representative erodes this activity of
direct democracy, even though it facilitates the viability of the democratic
system and decision-making.
In this regard, Bohman criticizes the demand for unanimity linked to the
formulation of the principle of democratic legitimation. The unanimity or
the agreement of all citizens is too strong a criterion to be imposed in
democratic practice. It seems paradoxical that he should maintain the
criterion of unanimous agreement in Faktizität und Geltung (Bohman 1994,
823).
Habermas omits any type of mathematical approval used by parliaments
everywhere in order to legitimate legal norms. He does not establish a
specific numerical majority or the need for a majority (absolute or simple)
in order to consider a particular norm legitimate. It seems that he is
looking for a strictly theoretical legitimation, but also that he wants to
avoid one of the monsters of political and legal liberalism, the dictatorship
of the majority. Habermas responds by affirming that when public discus-
sion does not lead to rational consensus based on the general interest, but
diminishes the disagreements between citizens by highlighting particular
interests, the solution can be found by looking for an agreement at the
highest level of abstraction (Habermas 1993). He seems to solve the
probable conflict of interests by raising the level of abstraction of the
principle of discourse until he finds the first point of coincidence among
those affected by the norm. Presumably, by raising the degree of abstrac-
tion of the principle, the author aims to solve one of the other serious
problems that the rule of unanimity generates, that is, the “right of veto,”
which each citizen implicitly has if we require decision-making to be
unanimous. Ackerman seems to solve this “silencing” of minorities by
establishing respect for them and for second generations. The author
correctly affirms that the arguments and values of my ancestors and the
agreements they may have made do not have to coincide with mine, and
therefore each generation will have the right to give their own arguments
and participate in the agreements and the positive norms approved
through the principle of deliberative democracy. Any sort of deliberative
democracy theory must include the possibility of introducing the following
generations into the dialogue on the same footing as their ancestors, at the
risk of violating the necessary neutrality. Citizens are at least as good as
other citizens regardless of their date of birth, and, therefore, they must be
able to participate on an equal footing with their ancestors when partici-
pating in the legitimation of the political and legal norms. Habermas’s
principle of deliberative democracy applied to law, although it seeks a
universal application of the principle, does not mention the second gen-
eration. As we have noted, Habermas does not establish a time limit in his
principle of deliberative democracy and, therefore, different generations
may coincide in the hypothetical discussion.3
Nor does Habermas establish a method for organizing the right to
speak, or any individual or collegiate body responsible for doing so—or
any kind of body in charge of monitoring the time necessary for for-
mulating allegations, ensuring that the arguments are not repeated, and
determining when the rest of the affected citizens have understood par-
ticular concepts.
The determination of a time for each citizen to defend or counter the
arguments is a question of great significance in practical life. An example
might be a law court where each party must defend their position. The
party that has more time and more opportunities to counter arguments will
be at an advantage. We consider the negotiations may be completely
altered by the lack of a time variable. The participants who are more skilled
in marking the tempo of their arguments may modify the final result of the
norm being coded. The establishment of a time limit for speaking and of
a schedule for turn-taking are strictly necessary for practical reasons and in
order to achieve a situation of equality for citizens who want to participate
directly in the codification of norms. In Faktizität und Geltung, Habermas
seems to reply to all these questions on the basis that the rationality that
has to govern the theory of the argumentation will also regulate all these
aspects.
Every type of procedure of legislation and/or civic participation must
follow a set of procedural guidelines. These rules, for instance, the oppor-
tunity to speak, the length of time one is allowed to speak, the right to
reply, provide a set of guarantees for the participants in the process. In his
later work, On Law and Disagreement. Some Comments on Interpretative
Pluralism, Habermas mentions the need to introduce the element of time in
3
The conversation between generations is also an issue studied by Ackerman in a living
Constitution, answering the question as to whether a constitution is a kind of machine or an
organism; see Ackerman 2007, 1793.
his principle of normative democracy; quoting Waldron, he states that the

deliberative process must reach a conclusion, with votes and decisions
(Habermas 2003b, 190).
The problem arises in cases in which an agreement is reached and
succeeding generations wish to alter the terms agreed by their ancestors,
some of whom are still alive. The problem is aggravated by the demand
of unanimity throughout the process. All these circumstances may make
Habermas’s deliberative democracy project impracticable. To save his
theory of the second generation from this problem, Ackerman pro-
poses that our generation should be considered the zero generation,
establishing the foundations of the society and making our children’s
generation the first one (Ackerman 1980, 202). The solution provided is
a renewal of dialogue. In practice there are moments where both gen-
erations live together; it is at this moment of coexistence that all the
contents of neutral dialogue must be developed. At this moment, the
first generation asserts its right to determine each child’s initial wealth
(ibid., 203).
The principle of equality also arises from the principle of universality, a
nuclear element of Habermas’s system of rule legitimation. Everyone has
the chance to participate in the process, in conditions of equality. The use
of the term everybody in the principle of universality does not differentiate
between the participants on account of their knowledge, their debating
skills or any other objective or subjective aspect, such as gender, race, social
status, or merits. All citizens in full equality have the same (formal) right
to state their rationally founded opinion concerning the norm that will be
approved and later applied.
The equality that Habermas establishes in his principle supposes that
men, although unequal by their very nature or because of their economic
or academic status (class, education, etc.), should be treated equally. This
formulation is framed in the definition of volitive equality as opposed to
natural equality. We deduce that Habermas’s claim of universalism
entails this volitive egalitarian treatment as a consequence of the direct,
full access of the citizenry to discourse and to the rational contributions
of each of the participants, without conditions. Habermas considers
that, in terms of equality, his system of procedural legitimation con-
tinues the model of the welfare state that stresses the subjective
autonomy and the institutions of the constitutional State (Rosenfeld and
Arato 1998, 27).
The configuration of the concept of equality in Habermas fulfills the
requirements of the Kantian principle of being, that is, that each participant
should be considered as an end in itself, and not as a means (Chambers
1996, 239). This treatment of volitive equality involves applying the same
approach to situations that are different. This criticism is applicable in a
direct way to Habermas’s principle of equality, since, like any other right,
his principle of equality turns out to be unavoidably unequal.4 Habermas

recognizes the problem posed by submitting different needs to the same
rights.
The way to overcome this flaw in the definition of the principle of equality,
which moreover is extrapolated to the theories of the liberal tradition,
consists in affirming that only by expressing the differences in defining the
heterogeneous public can we guarantee a principle of real equality. There-
fore, egalitarian treatment will require the application of different rules to
different persons and needs, or a greater acceptance of diversity.
The last aspect that we wish to address in our analysis of the principle
of equality concerns the relationship between the concept of equality and
tolerance. The communitarians and feminists have strongly criticized Hab-
ermas’s construction of the principle of equality. The criticisms made by
these doctrinal sectors refer to the whole of Habermas’s work. The basis of
their criticism affects not only the concept of equality as we have just seen,
but also the fact that conditions of equality have to be guaranteed before
one can take part in the process of coding legal norms. Nancy Fraser, for
instance, states that it is not possible to insulate specific discursive arenas
from the effects of a non-egalitarian society when social inequality is
maintained (Fraser 1996, 140).
As Habermas states, the best way of countering intolerance is by making
an apt criticism of prejudice and to fight against discrimination, that is, to
struggle for equality of rights and not for mere tolerance (Habermas
2003a). This principle of equality must be a norm that includes those who
think in a different way from us, and who are discriminated against as a
result of prejudice. This rule of inclusive equality for all citizens must be
recognized universally by the political community in order to make
tolerance possible (ibid.). According to the principle of equality, we should
not tolerate actions that violate human rights. The Constitutional State and
international organizations must have effective means to safeguard these
rights; if not, equality will be merely formal, not real.
As we stated earlier, Habermas does not establish a time limit in his
principle of deliberative democracy; therefore different generations may
coincide in the hypothetical discussion. Unlike Habermas, Ackerman estab-
lishes some necessary conditions for considering someone as a citizen in
the liberal sense, starting from the basis that one of Ackerman’s funda-
mental goals is to demonstrate that, in the liberal State, excluded persons
will also see their rights respected and will receive its protection.
Describing the citizen as a liberal presupposes, according to Ackerman,
the existence of a set of exclusion criteria. Ackerman explicitly excludes those
4
Karl Marx affirmed: “Right by its very nature can consist only in the application of an equal
standard; but unequal individuals are measurable only by an equal standard in so far as they
are brought under an equal point of view, are taken from one definite side only [. . .]
everything else being ignored” (quoted in Love 1995, 59).
who cannot participate in a neutral dialogue. The necessary conditions are

dialogue (dialogic performance) and behavior (behavioral requirements)
which enable citizens to participate actively in society (Ackerman 1980,
69–103). The bases of a liberal state are dialogue and a theory of effective
communication between citizens. Citizens who cannot participate in this
constructive dialogue will not be able to legitimate their position in the State
and consequently will not be able to participate in the relations of power that
must be justified through this constructive dialogue. In the liberal State
citizens must defend their answers to questions asked legitimately by others.
Consequently, the only valid reason for excluding a particular citizen from
the relations of power is his or her lack of legitimate argument. In relation
to the “behavioral requirements” Ackerman seems to affirm that persons
must be consistent in their declarations and their actions, and must justify
their power when it is questioned by another citizen (ibid., 83).
8. Conclusion
In our analysis we have described the main aspects of Bruce Ackerman’s
work on normative philosophy which, we feel, might improve and add
force to Habermas’s principle of discourse applied to law. In our view, the
criticisms of the concepts of neutral dialogue and neutrality, as well as the
differentiation between constitutional and normal moments regarding the
constitutional experience of the United States should be taken into account
if we seek to establish a framework for legal discourse and its application
to legislation, especially in the case of constitutional laws. The principle of
discourse applied to law should also consider the specific features of legal
language, features which citizens without legal training may not know and
which on many occasions may be open to interpretation; the legal reper-
cussions may be particularly important. We have also discussed themes
such as respect for minorities and the consideration of second generations,
important points that Habermas does not consider when establishing his
principle of democracy. In our view, the application of these corrections to
Habermas’s project will result in a more democratic, realistic, and universal
theory.
After drawing attention to the value of Habermas’s normative theory
prior to the publication of Faktizität und Geltung, ignored by certain authors
and fundamentally altered by Habermas in 1992, we defend a possible
theory of non-positivist deliberative democracy, which does not entirely
exclude morality. As we have stressed, the application of the principles of
dialogue and normative democracy to the theory of legitimation of legal
norms relocates Habermas in the sphere of the positivism that he had so
forcefully criticized, and in the theses of the absolute separation between
morality and law. The present article proposes the application of certain
aspects of Ackerman’s theory in order to create a synthesis.
The article shows how the gaps that appear in relation to Habermas’s
theoretical construction in the application of the principle of discourse can
be complemented with the theory of constrictive dialogue. Moreover, we
analyze how Habermas applies the concept of dialogue directly to the field
of law, obviating the fact that law is text and context and the fact that it is
not possible to apply an acultural language aseptically to the law. Other
factors of Ackerman’s theory that we apply to the principle of dialogue are
the difference between constitutional and normal politics and the theory of
dualist rather than monist democracy, which serve to highlight the differ-
ences in mood of the citizenry when participating in the coding of a norm.
In our view, Habermas’s principle of universality would benefit from the
incorporation of the concept of the liberal citizen and the consideration of
the second generation present in Ackerman’s theory. This addition would
achieve a more universal and timeless theory. We have also analyzed how
the configuration of the principle of universality affects the principle of
equality in Habermas’s work and how Ackerman adds elements that can
make up for its possible shortcomings from an ideal perspective of the
principle of equality.
Combining these aspects of Ackerman’s work and Habermas’s theory of
legitimation of legal norms can achieve a more consistent and effective
project of radical democracy. Without these considerations and corrections,
Habermas’s work is better defined as a special intuition of a moral
philosophy or as a deontological-universal speculative theory rather than
a theory aiming to help to take appropriate decisions of a legal nature, and
to eradicate the four politico-moral flaws of our time. The philosophical
perspective that we propose offers a third way of analysis that will help to
draw conclusions regarding the specific logic of philosophy, and will bring
a new vision of the theory of deliberative democracy applied to the
codification of legal norms.
Ackerman’s work takes account of the fact that the mood of the population
is variable. The key point, then, is to establish whether we truly defend the
idea that the population should legislate directly on all legal matters that
might affect us, and whether we are willing to accept all the consequences
of this decision. Asking ourselves about the epistemological status of the law,
we determine the importance and the field of action of normative democ-
racy. As Tarr affirms, it is up to philosophers to discern and to discuss the
question of direct democracy and whether it is desirable (Tarr 2002).
(for Antoni Abad I Ninet)

Stanford Law School
Crown Quadrangle
559 Nathan Abbott Way
Stanford, CA 94305–8610
E-mail: abadininet@hotmail.com
(for Josep Monserrat Molas)

Facultat de Filosofia
Universitat de Barcelona
C/ Montalegre, 6
08001—Barcelona
E-mail: jmonserrat@ub.edu
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Ratio Juris. Vol. 22 No.

4 December 2009 (510–31)

Habermas and Ackerman:

ANTONI ABAD I NINET AND JOSEP MONSERRAT

Abstract. In this article we consider certain elements of the normative theory of

In this article we compare specific elements of Jürgen Habermas’s norma-

1. Habermas’s Normative Theory

time the concept of the legitimation of law which he goes on to develop

process of the production of the law linked to the principle of popular

The principle of democracy presupposes the possibility of deciding

2. The Need To Complement Faktizität und Geltung

applied to the field of law without considering the specialization of legal

dialogue in specific conditions, he cannot guarantee its practicability or

3. The Peculiarity of Legal Language

In law, we find propositions that can be qualified as metalinguistic. The

4. Constitutional Politics and Normal Politics

between constitutional moments and normal moments. Constitutional

Monist democracy consists in the basic idea that democracy requires

periods of constitutional politics, the people show their continued and

6. The Public Sphere

the institutionalized opinion in parliamentary bodies (Habermas 1998).

7. The Eternal Dialogue

his principle of normative democracy; quoting Waldron, he states that the

his principle of equality turns out to be unavoidably unequal.4 Habermas

who cannot participate in a neutral dialogue. The necessary conditions are

(for Antoni Abad I Ninet)

(for Josep Monserrat Molas)

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