Discursive morality and constitutionalism

It appears from the discussion above that even if no final truth will ever be discovered in politics, for practical purposes the terms of interaction must be somehow institutionally defined, to grant deliberative democracy continuity in time.

As argued above, the principle of openness raises the question what the possibility to publicly question, and eventually refute through democratic procedures, all norms

and rules, including those constituting the foundations of the model itself, means for the conceptual position of the deliberative norms of equality and reciprocity. If it means that these basic conditions can be “radically questioned” but not changed, the possibility of seriously questioning them remains merely formal. If, on the other hand, it means that changing the very basic principles of deliberative democracy is even theoretically possible, the ideal will be either self-contradictory or totally dependent on the egalitarian goodwill of the participants for its continuity.

Expecting that those points of view that do not share the deliberative ideals will

“withdraw from the conversation at some point” implies a firm assumption that the discussion remains guided by the deliberative principles mainly thanks to the democratic commitments of the participants, and those who do not endorse these principles are free to exit. But it remains to be shown how the principles survive if their opponents refuse to withdraw from the public sphere and particularly if they gain political support through the democratic process – a possibility that is mostly treated as extremely unlikely in current democratic theories, but that is nevertheless always latently present in politics. In such cases only an unquestionable and legally fixed normative framework can prevent the egalitarian processes of open discussion from being discontinued through democratic procedures (while no institutions can finally protect democracies from violent overthrow, but discussing such possibilities is beyond the scope of the present democratic theory debates). The recognition by the proponents of deliberative democracy that some protection of universal norms is inevitable for the survival of the model appears self-contradictory, because such institutional protection means that some issues are removed from the political agenda and structurally protected from the eventual outcomes of public discussions and democratic decisions.

As I argued in the previous section, Benhabib’s own texts confirm at least implicitly that deliberative theory cannot get rid of a distinction between on the one hand, the discursively created political principles that are open to ongoing public challenge, and on the other hand, the “ground rules” that should not be compromised because without them the inclusive framework of deliberations would itself not survive. Particularly in her later work, Benhabib supports a limited version of liberal constitutionalism, although she explicitly still promotes the ideal of deliberative democracy. But in spite of the emphasis on openness, strains of constitutionalism can be detected also in her earlier work. In 1992, Benhabib

described constitutional rights as the institutionalized expressions of the moral foundations of her model:

“…the metanorms of communicative ethics like universal respect and egalitarian reciprocity are often embodied in the constitutions of liberal democracies as basic principles of human civil and political rights. These rights are the ultimate moral principles to which appeal must be made in a situation of prima facie ethical conflict between different ways of life” (Benhabib 1992, 45).

Thus the conventional liberal conception of the priority of “the right” is redescribed here as a “metanorm”, the ultimate moral good. It is unclear to what extent rights as the legal expressions of moral principles are perceived to be an outcome of interactive, inclusive public political processes instead of their external constraints.

Given the quite wide scope of rights established in the constitutions of existing liberal democracies, the assumption that it roughly correlates with the “metanorms”

of deliberative democracy implies that the scope of issues that can be openly debated in the public sphere may still be not much less restricted in deliberative democracy than in conventional liberal theories.

The unconditionality of Benhabib’s moral and legal universalism, as well as her acknowledgement of the need to distinguish between debatable and undebatable issues in politics, appears most clearly in connection with discussions on the position of universalism in multiculturalism. Disputing Ayelet Shachar’s legal pluralist visions of “multicultural jurisdictions” that make some space for parallel legal systems within liberal democracy for particular ethnic or religious groups, Benhabib argues that Shachar’s legal pluralism as a solution to multicultural conflicts may lead to “legal eclecticism, which may undermine one of the cardinal virtues of the rule of law, namely, ‘equality for all before the law”’ (Benhabib 2002, 128). She notes that unless the claims of cultural rights are backed by reasons that all can be expected to share, there is reason to fear a “refeudalization of the law”, and argues:

“Without establishing very clear lines between nonnegotiable constitutional essentials and those practices, rights, and entitlements that may be governed by different nomoi groups; and without specifying the capacity of constitutional principles to trump over other kinds of legal regulations, we may not be resolving the paradox of multicultural vulnerability, but simply permitting its recirculation […]” (Ibid., my emphasis; see also Shachar 2001, 88-116.)

Arguing for the need to safeguard the nonnegotiable universal constitutional rights above other political and legal values, norms and arguments, Benhabib takes an

explicitly constitutionalist position while defending a deliberative approach to the disputes, negotiations and discussions held in the public sphere of civil society. This confirms that in her version of deliberative democracy, although all critical points of view are welcome to enter the discussion, possibly on the basic norms of the deliberative polity itself; the egalitarian criteria of justification are bound to ensure that those claims that defy the norms of equal citizenship will be rejected as unconstitutional. This vision, while unconditional in its rejection of the arguments that defy the values of democracy, universal individual rights and equality, echoes the Rawlsian insistence that such demands be restrained to the non-political sphere of quasi-private associational life and eliminated from the political debates that have actual consequences for the legal makeup of democratic societies. Although Benhabib insists on including e.g. religious fundamentalists in the public deliberation processes, in which they would have to complement, under the conditions of symmetry and universal respect, their own demands of equal respect with clarifications on how they respect the similar claims of others; the bottom line is that unless the participants yield to the deliberative norms and respect the equal constitutional rights of all citizens, they cannot validate their claims through the deliberation process (Benhabib 2002, 118-119).

This indicates that regarding the conceptual position of individual rights in relation to participatory democracy, the model of deliberative democracy is closer to liberal constitutionalism than its proponents might like to admit. Although the deliberative model contests the boundaries of the political and the traditional division lines between “the public” and “the private” spheres in a way that challenges many assumptions of conventional liberalism; it has to rely on some limits of acceptability of arguments presented and endorsed through the deliberation processes, if it is not to be potentially self-destructive. Because the feasibility of deliberative democracy is ultimately dependent on preserving the universalist principles of reciprocity and equal respect for all members of the deliberative polity, these principles need to be enforced through a politics of universal constitutional rights that can be criticized, disputed and discussed, but not overturned, in the course of democratic deliberations.

The non-negotiable moral foundation behind these principles is the strong humanist notion equal worth of each human individual that also motivates conventional liberalism as well as its egalitarian critics. The politics of rights in deliberative democracy is thus not endlessly “democratic” in a sense that existing

basic rights could be compromised even by following proper democratic procedures that theoretically might support such a compromise. The “metanorms” are fixed constitutionally as principles that any discussion on the further content and meaning of rights must respect by keeping other rules and decisions compatible with them.

While the theoretical ideal of political openness means that the scope and meaning of rights is open to public scrutiny, practical political realities require that the norm of openness must be compromised to some extent. The fact that no one is in a position to hold final truth claims about practical morality does not necessarily imply that the conditions for everyone’s equal participation and equal claim to respect need not be fixed beyond further challenge in particular political settings.