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Farewell to Justification : Habermas, Human Rights, and Universalist

Morality
Farid Abdel-Nour
Philosophy Social Criticism 2004 30: 73
DOI: 10.1177/0191453704039393
The online version of this article can be found at:
http://psc.sagepub.com/content/30/1/73

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Farid Abdel-Nour

Farewell to justification
Habermas, human rights, and
universalist morality

Abstract In his recent work, Jrgen Habermas signals the abandonment

of his earlier claims to justify human rights and universalist morality. This
paper explains the above shift, arguing that it is the inescapable result of
his attempts in recent years to accommodate pluralism. The paper demonstrates how Habermass universal pragmatic justification of modern
normative standards was inextricably tied to his consensus theory of
validity. He was compelled by the structure of that argument to count on
the current or future availability of a unified framework within which all
can potentially articulate their needs and interests. With his abandonment
of the justification Habermas has rid discourse theory of this controversial
assumption. In weakening its defense of human rights and universalist
morality against the charge of ethnocentrism, he has strengthened his
theorys foothold in the lived pluralist world.
Key words argumentation ethnocentrism Habermas human rights
justification legitimacy pluralism rational consensus Rehg

Until very recently, the goal of justifying human rights and modern universalist morality seemed to run through Jrgen Habermass complex
and multifaceted work like a unifying thread. In The Theory of Communicative Action his defense of modern normative standards against
the charge of ethnocentrism took the form of a sociological argument.1
By the late 1980s it started to take the shape of a Universal Pragmatic
Justification.2 What remained constant was his claim to demonstrate
that the universalist content of human rights and modern morality is buttressed by their universal validity. However, in two recent essays dealing
with human rights and political legitimacy, Habermas scrupulously
PHILOSOPHY & SOCIAL CRITICISM vol 30 no 1 pp. 7396
Copyright 2004 SAGE Publications (London, Thousand Oaks, CA and New Delhi)
www.sagepublications.com DOI: 10.1177/0191453704039393

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Philosophy & Social Criticism 30 (1)
avoids any claim to justification. In Remarks on Legitimation through
Human Rights,3 he offers human rights as the answer to a problem that
once confronted Europeans when they had to overcome the political
consequences of confessional fragmentation and now confronts other
cultures in a similar fashion (RL 128). He does not point to the universal justifiability of human rights, but offers them instead as a solution
that worked well for Europe and that others would do well to imitate
when they confront a similar problem.4 Similarly, in Constitutional
Democracy: a Paradoxical Union of Contradictory Principles,5 he interprets constitution-making as a way of putting into words the project of
bring[ing] forth a self-determining community of free and equal citizens
(CD 775) and explains in great detail how a full system of liberal and
participatory rights is implicit in such a project. At no point in this essay,
however, does he point to a justification of the project itself. Instead, he
seems content to let human rights and constitutional democracy be contingent upon the desire among a group of free and equal persons to selflegislate. This is in contrast with his earlier criticism of John Rawls for
relying on unjustified substantive normative assumptions (IO 678,
5963).
With these two essays Habermas signals a significant shift in his
work. He seems to have abandoned his long-standing claim to justify
human rights and universalist morality. This paper offers an explanation
for the above shift. It argues that Habermass abandonment of his universal pragmatic justification is the inescapable result of the numerous
attempts made in recent years to render discourse theory accommodating to pluralism. In the last decade or so, several of Habermass
friendly Anglo-American critics have sought to broaden the scope of discourse theory in order to render it appropriate for a pluralist world. At
the heart of the most compelling attempts in this direction was the
following demand: Habermas needed to allow agreements reached for
different reasons to qualify as candidates for rational consensus.6
Habermas, however, who throughout his career had evinced a great
willingness to change his mind and meet his critics concerns, uncharacteristically refused to budge on this particular point. For some time
he continued to insist stubbornly that only agreements reached for the
same reasons could be rational.7 The critics underestimated the enormity
of the change they were proposing. Only if Habermas also abandoned
the universal pragmatic justification of human rights and universalist
morality could he adjust his theory in this way. His scrupulous avoidance of all claims to justification in his recent essays can be read as an
indication of Habermass willingness to now pay this dear price for the
accommodation of pluralism.
My argument renders explicit what Habermas has left implicit. It
demonstrates how Habermass justification collapses once a conception

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Abdel-Nour: Farewell to justification
of rational consensus is introduced that would accommodate pluralism.8
The core of the justification was that universalist morality and human
rights can be justified to anyone who would argue about morality and
political legitimacy because the practice of arguing itself is normatively
structured. However, a careful reconstruction of this argument reveals
that it requires the parties involved to recognize no normative authority
other than that of the better argument, and to aspire towards a shared
secular framework within which to articulate their respective needs and
interests. The justification turns out to be tailored to secular cognitivists,
and to be incompatible with any deviation from this world-view. While
a universal justification of human rights and universalist morality
cannot possibly convince everyone it certainly cannot be expected to
convince the consistent skeptic, the a-moralist, the closed-minded dogmatist, or the one who lacks good will it ought at least to address the
open-minded believer. If it is conceived for this world, it ought to
address those who are willing to change their minds on normative questions and learn from the arguments of others, but who cannot live
without religious faith. Ultimately, Habermas has had to abandon his
justification because it neither addressed nor applied to anyone who
deviates even in this minimal way from secular cognitivism. With Max
Weber, he seems to understand (perhaps more clearly now) that not
everyone can bear the fate of the [modern] times like a man,9 and that
a version of discourse theory that has no room for the fainthearted
loses all practical significance. In my view, for maintaining a toehold in
the lived world, no price is too dear for ideal theory to pay. The line
distinguishing it from fantasy cannot be allowed to become blurry. By
abandoning the universal pragmatic justification, Habermas has thankfully brought this line back into focus and placed discourse theory
squarely on this side of it.
My argument is in four sections. In the first, I focus on the discourse
principle (D), which Habermas had offered as a general principle for
normative guidance. I demonstrate that (D) is inextricably bound with
Habermass consensus theory of validity. This in turn restricts the
interpretation of rational consensus (one of its central concepts) to
agreements that are reached for the same reasons. In the second section
I explicate the two principles with which Habermas tailored the
intuition of impartiality implicit in (D) to the political and moral
spheres. His principle of democracy captures the intuition of impartiality for the political sphere and allows for the derivation of the system
of human rights, while his universalization principle (U) captures the
same intuition for the moral sphere and yields a universalist morality.
It is because Habermas thought he could justify these two principles
that he claimed that human rights and universalist morality are universally justifiable. The first two sections set the stage for the core of my

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Philosophy & Social Criticism 30 (1)
argument, which I offer in the third. Habermass universal pragmatic
justification of the principle of democracy and the principle of universalization (U) depends on the narrow interpretation of the discourse
principle (D) offered in Section I, where rational consensus can only be
achieved for the same reasons. This is what limits the scope of the justification to secular cognitivists and excludes open-minded believers. In the
fourth section I deal with an attempt by William Rehg to broaden the
reach of Habermass argument beyond these narrow confines. In his
Insight and Solidarity,10 he seeks to render Habermass project
accommodating to the religiously inclined, as well as to secularists. In
so doing, however, Rehg circumvents the consensus theory of validity
to which the principle of democracy and the principle of universalization (U) are inextricably tied via the discourse principle (D). I argue that
Rehg does not succeed in reconciling a broad reformulation of discourse
theory with the universal pragmatic justification.

I The discourse principle (D) and the consensus theory of

validity
In Between Facts and Norms Habermas offered his discourse principle
(D) as a general criterion for determining the normative validity of any
proposed action norm, be it moral or political (BFN 107). In this section
I explicate this principle and its two related concepts, rational discourse
and rational consensus, with the goal of revealing its necessary connection to Habermass consensus theory of validity.
(D) pins the validity of action norms on the outcomes of actual discourses. It says: Just those action norms are valid to which all possibly
affected persons could agree as participants in rational discourses (BFN
107). The first segment of (D), Just those action norms are valid to
which all possibly affected persons could agree, merely records the fact
that the contemporary normative theorist cannot count on the existence
of a universally recognized sacred source of normative validity. It gives
expression to the modern idea that a norm of action will be heteronomous, an alien imposition, and therefore not valid if it cannot be
linked somehow to the wills of those to whom it applies. To my mind,
this segment of (D) is uncontroversial. It leaves open the possibility of
individual reliance on, say, religious authority, without counting on such
reliance.
In the modern Western tradition of political and moral theory, the
linkage of a norm to the wills of those affected by it is a necessary
but not sufficient condition of its validity.11 Having laid out the necessary condition for a norms validity in the first segment of (D),
Habermas presents his version of the more controversial sufficient

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condition in the second segment. If it is left without qualification, the
standard of what persons could agree to would allow for agreement to
occur under constraint. One could, for example, agree to a norm in
ignorance of ones interests. Alternatively, ones acceptance could be
drawn out of one by force, deception, or manipulation. Thus, in the
second segment of (D), Habermas neutralizes these potential concerns
by requiring that those affected agree to the proposed norm as participants in rational discourses. Only under the strict conditions that
prevail in such discourses does the agreement of those affected by a
proposed norm count to validate its application and enforcement. This
segment of (D) is deeply controversial as will become evident in the
following discussion.

Rational discourses
For Habermas, the conditions that prevail in rational discourses guarantee impartiality. Thus agreements arrived at under these conditions have
a normative significance that distinguishes them from all other types of
agreement such as business deals, for example, which occur under very
different conditions. He describes rational discourses as open communicative practices in which the participants seek to reach Verstndigung or mutual understanding about the truth of a proposition or the
validity of an action norm. Their motive necessitates that the participants be equally positioned, which in turn imparts the characteristic of
impartiality to their agreements. Habermas calls the process whereby
the participants in such discourses seek to convince each other Argumentation.12 Given their motive of reaching Verstndigung, persons
who engage in argumentation necessarily rely on certain presuppositions.13 Every participant in the process described above necessarily presupposes that: (1) all competent speakers (on the matter in question) are
allowed equal access to the discourse; and (2) all are allowed equal
opportunities to participate.14
In On Liberty John Stuart Mill argued for the freedom of expression
for every opinion, reasoning that the silencing of any opinion would be
a potential loss in the search for truth.15 Just as for Mill the freedom of
expression for all opinions is internally related to the value of truth, for
the participants in a rational discourse the rules of equal access and
equal participation are internally related to their goal of determining
truth or validity. The reason no perspective may be arbitrarily excluded,
nor its participants restricted, is that it may shed additional light. Each
perspective or participant might reveal fallacies in the arguments
accepted by others, might point to unforeseen consequences of a norm,
or might offer a better alternative norm or proposition. In other words,
equal access and equal participation emerge as rules of argumentation

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Philosophy & Social Criticism 30 (1)
because the participants in this process are understood to be oriented
towards the avoidance of error. The fear of missing a fallacy, an unforeseen consequence, or a better alternative undergirds the necessary status
of these rules.
When Habermas specifies in the second segment of (D) that the
acceptance of those affected by a norm, if it is to validate the norm,
must be obtained in the context of rational discourses, he says a great
deal. In so doing he not only precludes the drawing out of agreement
by force, intimidation, and ignorance, but also evinces his reliance on a
consensus theory of validity similar to Charles Sanders Peirces and
Thomas Kuhns consensus theory of truth (WT 2556, MCCA 56, BFN
14). For it is precisely the motive of arriving at validity consensually
that makes it essential for all competent speakers on the subject to be
given equal access and to be allowed equal opportunities to participate.
This connection between the presuppositions of argumentation and the
motive of the participants in that process is very important to emphasize. For these presuppositions do not necessarily inhere in every dialogical process, nor are they necessary whenever the participants in
dialogue seek to arrive at consensus. Without the goal of arriving at
truth or validity via consensus, these rules are not necessary presuppositions.16

Rational consensus
Habermas considers validity-claims to be analogous to truth-claims,
both being premised on consensus (MCCA 507).17 However, a consensus theory of validity is in greater danger of being understood as a
contextualist theory than is a consensus theory of truth. The normative
question of what is valid has been reduced by no less venerable an authority than Max Weber to the empirical question of what is considered
to be valid in a particular context.18 Habermas is acutely aware of this
danger and seeks to avoid it. Therefore he clearly specifies that the kind
of agreement arrived at by the participants in a rational discourse is a
rational consensus achieved when all participants are convinced by the
force of the better argument. What distinguishes rational consensus
from any other is that it is based only on the cognitive force of the
argument, not on the rhetorical skill of the speaker. While a participants
powers of persuasion can effect an ideological consensus, only the
force of her argument can effect a rational consensus. A consensus
theory of validity must rely on this contrast if it is to avoid the pitfalls
of contextualism (IO 60, 867). Since the force of the argument, and
not the particularities of speaker and audience, determine the achievement of a rational consensus, we expect those who achieve it not only
to share a conviction about the truth of the proposition or the validity

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of the norm in question, but also to share an understanding of why this
proposition is true or this norm valid. They must agree on the reasons
supporting the truth- or validity-claim (IO 86).
Yet the limits of a Sprachsystem or framework within which a discourse is conducted might restrict the kinds of reason that can be articulated within it. This in turn can inhibit the communicative search for
truth or validity. Aware of this impediment to finding arguments that
convince all in a discourse, Habermas requires that the language of a
discourse within which a problem is articulated, reasons given, and
arguments made be flexible and revisable until reasons are found that
convince everyone.19 Its choice at the beginning of the discourse ought
not to determine a priori the interests, needs, and perspectives that can
be articulated in a Sprachsystem (WT 250, 252, JA 90). Therefore argumentation, as Habermas understands it, counts at least on the presumption by the participants that one Sprachsystem can be found in
which they can all interpret their needs and interests. Granted they
expect it to be flexible and revisable, but this flexibility in no way puts
into question its unity. Rational consensus over a norm is achieved when
parties agree on a set of reasons for accepting the proposed norm. It
occurs within one, albeit flexible and revisable, Sprachsystem.
The insistence on the same reasons in rational consensus is the direct
consequence of the motive of the participants. Oriented towards achieving mutual understanding about questions of truth or validity, they must
necessarily expect to arrive at a consensus for the same reasons. Recall,
however, that this same motive of arriving at truth or validity consensually had rendered the principles of equal access and equal participation into necessary presuppositions implicitly made by the participants. This means that the necessary character of impartiality in rational
discourses and the demand for the same reasons in rational consensus
are intimately connected. Both are rendered necessary by Habermass
consensus theory of validity. This latter theory, which endowed the conditions of equal access and equal participation with their necessary
status in rational discourses, places a restriction on the type of agreement to be reached by the participants. It must be arrived at for the
same reasons. Therefore, the necessary status of impartiality in rational
discourse, which is critical for Habermass epistemic claim, is inextricably tied to this narrow interpretation of rational consensus.
So far I have explicated (D), the general criterion of normative
validity offered by Habermas, and two of its related ideas: rational discourse and rational consensus. I have argued that the standard of impartiality is only necessarily implicit in (D) within the context of Habermass
consensus theory of validity, and that this theory requires that only agreements reached for the same reasons qualify as candidates for rational
consensus. However, if (D) is to be useful for moral orientation and for

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determining political legitimacy, it requires further specification. That is,
if persons affected by a norm are to engage in a rational discourse over
its validity, they are in need of specific criteria with which to determine
whether the norm is worthy of their agreement.

II Postmetaphysical articulation of moral and political

standards
Inspired by Kant, but aware of the controversies surrounding the notion
of a transcendental subject, Habermas offers moral and political criteria
that capture Kants normative intuitions without the metaphysical trappings. He offers the principle of democracy as the criterion of political
legitimacy and the principle of universalization (U) as the criterion of
morality. The principle of universalization is Habermass postmetaphysical rendition of Kants categorical imperative, and the principle of
democracy is a similar substitute for Kants original contract. These two
principles allow Habermas to retain the normative intuition of impartiality for both spheres while avoiding the philosophy of the subject. His
goal in this articulation is to render Kantian standards justifiable. Here
I explicate this articulation in order to clarify exactly what it is that
Habermas had set out to justify, before showing in Section III how that
goal is ultimately frustrated.
Since moral norms regulate the action of each individual towards
every other individual, and since a rational discourse involving everyone
(as would be demanded by (D) for this sphere) is practically impossible,
Habermas has the participants in moral discourses rely on (U) as a
criterion that would compensate for this inevitable shortcoming. The
participants in a moral discourse use (U) to determine whether the
proposed moral norm deserves their recognition.
(U) says that a proposed moral norm is only deserving of recognition if:
All affected can accept the consequences and the side effects its [the norm
in questions] general observance can be anticipated to have for the satisfaction of everyones interests (and these consequences are preferred to
those of known alternative possibilities for regulation). (MCCA 65)

This principle tak[es] into account the impersonal or general character

of valid universal commands (MCCA 63), thus capturing the idea of
impartiality implicit in the categorical imperative. In a rational discourse
over the validity of a proposed moral norm, if the general observance
of the norm can be anticipated by any of the participants to have sideeffects and consequences that any one of those affected would not
accept, it is undeserving of approval and as a result cannot define the
duties that everyone owes to everyone else. (U) serves to remind those

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engaged in rational discourses that when they assess proposed moral
norms, they must consider the interests of everyone.20 In this way (U)
captures the idea of a universalist morality.
Just as participants in rational discourses over proposed moral
norms rely on (U), similarly the participants in discourses about political
legitimacy need a criterion with which to determine whether proposed
political norms are worthy of their agreement. Unlike moral discourses,
discourses over legitimacy concern a specific group of citizens in a
particular time and place (BFN 153). Here too, however, the expectation
is that not all citizens will necessarily be active participants in a rational
discourse on legitimacy. Yet, the interests of all citizens must be taken
into account, as must their ability to assent actively to the norm in
question. The criterion that Habermas offers for this context is the principle of democracy. This principle states that
. . . only those statutes may claim legitimacy that can meet with the assent
[Zustimmung] of all citizens in a discursive process of legislation that in
turn has been legally constituted. (BFN 110)

The principle of democracy captures the dual content of Rousseaus

and Kants device of original contract. It encodes the idea of democratic participation (public, political autonomy) as well as the idea of
basic human rights (individual, private autonomy) (BFN 94, 99, CD
767). When the principle of democracy requires that statutes meet with
the assent of all citizens in a discursive process of legislation, it
captures the idea of political autonomy. It requires that there be an
open process of legislation in which all citizens can participate in some
form. Under legitimate law, each citizen is able to conceive of herself
as the author of the law (BFN 4089, 454, CD 767, 777). Secondly
the principle of democracy captures the idea of basic individual rights
and liberties guaranteeing individual (private) autonomy for all. Just as
when using the device of original contract we expect the participants
to consent freely to nothing less than a political system that guarantees a measure of equal basic rights and liberties, so the principle of
democracy demands the impartial distribution of these rights and liberties.
From the principle of democracy Habermas derives a system of
rights encoding both private and political autonomy.21 When the participants in a rational discourse rely on this principle as their criterion of
legitimacy, they demand of a proposed political norm that it be consistent with the following list of rights (BFN 125):
1
2

basic rights that result from the politically autonomous elaborations

of the right to the greatest possible measure of equal individual liberties
basic rights that result from the politically autonomous elaboration

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3
4

of the status of a member in a voluntary association of consociates

under the law
basic rights that result immediately from the actionability of rights
and from the politically autonomous elaboration of individual legal
protection
basic rights to equal opportunities to participate in processes of
opinion- and will-formation in which citizens exercise their political
autonomy and through which they generate legitimate law. (BFN
1223, CD 777)

Individual autonomy is encoded in the three categories of rights that

define the status of a legal person (1, 2, 3), and political autonomy is
encoded in a right to political participation (4). These categories of
rights capture the intuition of impartiality for the political sphere. Equal
individual liberties, equal opportunities to participate, as well as equal
membership and equal legal protection, characterize constitutional
democracy. The impartial allocation of these rights is the feature that
precludes slavery, apartheid, or paternalism, as well as authoritarianism.22 It is also the feature that is most important to justify in order to
avoid the charge that constitutional democracy is an ethnocentrically
western political form.
We have seen that universalist morality and basic human rights,
including the right to equal democratic participation, can be derived
from Habermass postmetaphysical re-articulation of Kantian principles. According to Habermas, the above modern normative standards
are universally justified because the principles of universalization and
democracy from which they can be derived are themselves universally
justified.

III Habermass universal pragmatic justification and its

limits
Both (U) and the principle of democracy can be derived from the presuppositions of argumentation.23 As we saw in Section I, persons who
argue presuppose the equal access and equal participation of all competent speakers. Therefore they implicitly accept the standard of impartiality at the core of the principles of universalization and democracy.
When those affected by a proposed political norm engage in a discourse
over legitimacy as required by (D), and when in so doing they rely on
the principle of democracy to determine whether the norm is legitimate,
they are using a criterion that is already implicit in the very practice in
which they are engaged. The situation is similar in a moral discourse.
When Habermas requires the participants in the relevant discourses to

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use (U) or the principle of democracy as their criterion for judging
proposed norms, he simply makes explicit what all who argue already
assume. In rational discourses these principles are not imported from
the outside (MCCA 756).
This is Habermass universal (or transcendental) pragmatic justification. He writes that it is designed to remind anyone who so much
as enters into argumentation that he is already participating in a normatively structured practice (JA 77). Within the practice of argumentation no one can consistently deny the validity of the principles of
universalization and democracy. Anyone who would do so becomes
embroiled in a performative contradiction because the very attempt at
denying their validity argumentatively implicates one in the presuppositions of argumentation (MCCA 80). In argumentation one can reject
the validity of these principles only by in fact assuming it.
For example, when a Muslim believer, participating with a liberal
atheist in a rational discourse on legitimacy, argues that equal basic liberties and rights, including the equal right to political participation,
constitute a western imposition alien to her tradition and culture, the
liberal could remind her that the principle of democracy from which
the system of rights is derived is not alien to her in her capacity as a
participant in argumentation. The very practice of argumentation
within which she articulates her rejection of the system of rights
contains the normative core of the principle of democracy. By rejecting the system of rights, even while deploying its normative core to
argue her case, she falls into a performative contradiction. Faced with
this response she must choose. She can either accept the validity of the
principle of democracy, and thus the legitimacy of the system of basic
rights, or she can exit the practice of argumentation. Such is the compulsion of Habermass universal pragmatic justification. It lays claim
to the practice of normative argumentation in toto. Anyone who rejects
the principles of universalization and democracy would be leaving the
community of those who argue (in the strict sense) about morality and
legitimacy respectively.24

Limits and scope

Habermas himself recognizes two limits to this justification of basic
human rights and universalist morality. It does not reach the skeptic
(MCCA 99) and it cannot compel someone lacking good will. In the
face of the second limitation, he declares philosophy powerless. Socialization processes will have to produce the good will, philosophy itself
cannot do so (JA 79, BFN 113). He addresses the first limitation,
however, by offering a sociological argument as a broad net with which
the consistent skeptic and anyone else who slips through the cracks of

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the universal pragmatic justification could be caught. I discuss this
argument and its shortcomings at the end of this section.
For now, however, let us continue to consider the above example.
For Habermass universal pragmatic justification to compel the Muslim
believer, she cannot be a skeptic, nor can she lack good will. Additionally, she must be someone who sees room for discussion over normative questions. She cannot be someone who considers all such questions
to be fully and transparently answered by a religious text, for example.
This means that she cannot be a closed-minded dogmatist. If the skeptic,
the one lacking good will, and the closed-minded dogmatist were the
only figures immune to Habermass universal pragmatic justification,
then it would have achieved its goal. For such figures might have to be
coerced, or bargained with, but they are predictably beyond any theoretical attempt to justify and legitimize action norms. If Habermass universal pragmatic justification can assure us that no open-minded,
reasonable person, with good will, can coherently deny the validity of
basic human rights and universalist morality (irrespective of gender,
class, race, cultural background, and world-view), then it will have
served a tremendous practical function. The justification would offer the
advocates of human rights and universalist morality the assurance that
these are not western ethnocentric particulars masquerading as universals.
Unfortunately, Habermass argument cannot yield this desired
practical result. In fact his universal pragmatic justification not only
requires the Muslim believer and her atheist liberal interlocutor to be
open-minded, capable reasoners with good will. It expects them to
share a secular cognitivist world-view. Since the justification is
premised on the process of argumentation over normative validity,
certain conclusions follow. Both must be able to conceive of their needs
and interests from within the same Sprachsystem. Let us imagine that
our believer is not a dogmatist, but an open-minded Muslim whose
adherence to any of the traditions of textual interpretation in Sunni
Islam does not, in her mind, preclude the possibility of learning something about normative questions from others who do not share her
world-view. Let us also imagine that her atheist interlocutor is similarly disposed. In Habermass universal pragmatic justification, these
two interlocutors respective commitments to their different worldviews are expected to be commensurate with their conviction that a
Sprachsystem can be found within which the needs and interests of
both can be interpreted. Since atheism and Sunni Islam are irreconcilable, the only hope for a common framework would be one that allows
both to interpret their needs and interests while bracketing the basic
tenets of both doctrines. This means that in order to be subject to the
justification of impartiality, the Muslims and the atheists commitment

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to their respective world-views must be very minimal. It cannot be
integral to their interpretation of their own respective needs and interests. For all normative intents and purposes, they would have to be
seculars who bracket their comprehensive doctrines in all matters pertaining to morality and politics.
Persons subject to Habermass universal pragmatic justification are
expected to have one more characteristic. They are to value conviction
by argument (which is by definition revisable and always in danger of
being supplanted by the better argument) over obedience to the
commands of their religion or doctrine. In a pluralist context, they are
expected to subject all such commands to ratification in a process of
argumentation with others who are not necessarily committed to the
source of the command. In short, whatever religious or other beliefs the
Muslim and the atheist have, they must not only consider them to be
irrelevant in their understanding of their own needs and interests.
Rather, they must also consider them to be revisable pending the better
argument. This means that on top of all the other requirements that
they must fulfill, the Muslim and her interlocutor must both be cognitivists where normative questions are concerned before Habermass
justification would apply to them. Therefore, in addition to the skeptic,
the one without good will, and the closed-minded dogmatist, the openminded believer is also immune to Habermass justification. Adding up
these exclusions, it would appear that Habermass justification of the
universal validity of basic human rights and universalist morality can
only assure us that these standards are not ethnocentric impositions if
we are willing to believe that the world is populated by secular cognitivists. Needless to say, at this point in time such a belief would be tantamount to an exercise in delusion.
Since the reach of Habermass universal pragmatic justification has
turned out to be so excessively narrow, it remains to be seen whether
the net with which he had sought to catch the skeptic might prove to
be wider. In Discourse Ethics Habermas tested the limits of his universal pragmatic justification by engaging in an imaginary confrontation
with the consistent skeptic. While acknowledging that the skeptic
would only need to reject the game of wits from the outset and choose
to remain silent in order to avoid being embroiled in a performative
contradiction (MCCA 99), Habermas argued that such an attitude does
not get the skeptic off the hook. For he remains susceptible to the sociological constraints articulated in his Theory of Communicative Action.
The skeptic, according to Habermas,
. . . by refusing to argue . . . cannot . . . deny that he moves in a shared
socio-cultural form of life, that he grew up in a web of communicative
action, and that he reproduces his life in that web . . . he cannot reject the
ethical substance [Sittlichkeit] of the life circumstances in which he spends

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his waking hours, not unless he is willing to take refuge in suicide or serious
mental illness. (MCCA 100)

The practice of argumentation is internally interwoven with our sociocultural form of life (JA 83) and no one, including the skeptic, can
choose to escape its presuppositions simply by abstaining from
argument.25 This means that while the skeptic insofar as he chooses to
abstain from argumentation may be immune to the universal pragmatic
justification of the standard of impartiality, he cannot choose to abstain
from social life. Undergirding all social existence are the truly
inescapable presuppositions of communication. These are at least partly
identical with the presuppositions of argumentation as such (MCCA
101).
For the sake of brevity suffice it to say that when he relied on this
argument, Habermas had to switch gears. Confronted with the skeptic,
he abandoned his universal pragmatic justification and turned to his
sociological theory of communicative action instead. Whereas the justification is contingent upon the willingness of the persons involved to
engage in argumentation on normative questions, the sociological
argument is contingent only upon their existence within the symbolically structured socio-cultural form of life that G. H. Mead argues
mark[s] the threshold of anthropogenesis (TCA2 22). Everyone,
including the skeptic, is embroiled in the presuppositions of communication that undergird the socio-cultural form of life, and therefore the
idea of impartiality, which is partly constitutive of everyday communication, cannot be a foreign imposition on anyone. Given the broad reach
of his theory of communicative action, why did Habermas avoid falling
back on it except in cases where his universal pragmatic justification
faltered? The answer is because the latter has a compulsion that the
sociological argument lacks (MCCA 88, BFN 437). Those who are susceptible to the power of performative contradiction are literally
stopped in their tracks if they reject the principles of universalization
and democracy. They can accept these principles and continue as participants in the practice of normative argumentation, on the one hand; or,
on the other, they can deny these principles and exit the practice of
normative argumentation altogether.
If left only with his sociological argument, however, Habermas is
deprived of the weapon of performative contradiction. This argument
allows us to know that everyones social existence is built on presuppositions that can yield the idea of impartiality. Yet, this insight is of little
import to us because the sociological argument at best reveals impartialitys presence in action contexts. It does not give us a reason for why
this idea, ubiquitous as it may be, is to be elevated to the status of a
guide to action. No empirical theory, no matter how well supported by

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evidence (be it Habermass theory of communicative action or Darwins
evolutionary theory), can exercise the same practical compulsion on
anyone as can the universal pragmatic justification on those who argue
about normative questions. Habermas was mistaken in MCCA when he
held the threats of suicide and schizophrenia over the skeptics head.
Those who are immune to the universal pragmatic justification of impartiality (including the skeptic), can live their lives amid inconsistencies and
contradictions and need not be any the worse for it. Only in the context
of normative argumentation do such threats have meaning.

IV Pluralist reformulation
The above discussion reveals that Habermass sociological argument
does not have the compulsion of a justification. Furthermore the universal pragmatic justification of impartiality fails in the very context in
which it is most urgently needed. It is precisely in a world inhabited by
secularists as well as the religiously committed that the universal justification of human rights and universalist morality is most needed by the
supporters of these standards. Yet, the universal pragmatic justification
is so narrow in its scope as to apply only to secular cognitivists. What
is not clear at this stage, however, is whether this limitation can be
remedied by tinkering with the theory. This section investigates
William Rehgs attempt at rendering Habermass project accommodating to pluralism, while simultaneously saving his justification. I
demonstrate, however, that even this very promising attempt fails.
Led by Thomas McCarthy, some of Habermass friendliest critics
have in recent years attempted to render his normative theory accommodating to pluralism by broadening his understanding of rational consensus. They have sought to conceive of consensus in such a way as to
accommodate reasonable differences in world-view and perspective. In
two influential essays, McCarthy argued that rational consensus, understood as agreement for the same reasons is too exacting a standard.26
Instead he suggested that Habermas move in the direction Rawls had
marked out with his idea of an overlapping consensus, where a set
of norms acting as a module can be supported from within a multiplicity
of reasonable world-views (Legitimacy and Diversity, p. 1093). Harald
Grimen and James Bohman offered specific formulations that are consistent with McCarthys suggestion. Grimen offered a reading of (D) in
which different reasons may be more or less decisive for each party as
they seek consensus (Consensus and Normative Validity, p. 49) and
Bohman offered the idea of a moral compromise, as a weak plural
agreement, to which each side could assent for different reasons (Public
Deliberation, pp. 92, 45, 88, 89).

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It was left to William Rehg, however, to undertake the most
ambitious project in this direction. He took up this challenge and sought
to reformulate rational consensus in such a way as to grant normative
significance to agreements reached for different reasons.27 In his formulation rational consensus is conceived of as allowing for a single norm
[to] be arrived at through a number of different frameworks (and need
interpretations) (IS 76).28 Rehg writes:
A norm is reached on the basis of good reasons, and a rational consensus
thereby attained, if and only if (a) each of those affected can convince the
others, in terms they hold appropriate for the perception of both their own
and others interests, that the constraints and impacts of a norms general
observance are acceptable for all; and (b) each can be convinced by all, in
terms she or he considers appropriate, that the constraints and impacts of
a norms general observance are acceptable for all. (IS 75)

Whereas in Habermass formulation rational consensus would be tied

to a single set of reasons addressed to a universal audience, Rehgs
alternative allows for multiple reasons universally tested (IS 243). As
with McCarthy, Bohman, and Grimen, this means that in moral discourses, all need not accept the consequences and side-effects that the
general observance of a proposed moral norm may occasion for the
same reasons. Rather, the participants must be able to present their
needs and interests in the language of others (IS 77), so that each would
be convinced on her or his own terms, and would have sought to
convince everyone else in their own respective terms.
Rehgs formulation does not rely on the availability of any one
Sprachsystem in which the needs and interests of everyone can be
articulated. Every participant gets to have her or his needs and interests articulated in their own terms. The question now is whether
rational consensus, broadened in this way to account for the pluralism
of world-views and to transcend the religioussecular divide, can
continue to perform its role in the justification of impartiality. Rehg
offers a four-step justification of the standard of impartiality premised
on two conditions, both of which are contained in the first step. The
first condition is that conflicts of action be understood as prone to being
settled by appeal to norms (IS 5862, 66). This means that we must
assume that the bearers of the competing interests and needs in
question are willing to resolve their conflict by appeal to a general
standard. The second condition is that norms are established argumentatively. This means that we assume these bearers of conflicting
interests to consider a norm worthy of their appeal only if it is the
product of argumentation.
From the above two premises, both contained in (1) below, Rehg
derives the normative core of (U) as follows:

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If one assumes (1) a pluralistic group decides to resolve their conflicts of
interest cooperatively by reaching argued agreement (as rational conviction) on a norm; and if (2) a commitment to argument means treating all
the competent speakers on the issue as equal dialogue partners in this
argument . . . and finally, if (3) a social norm is a shared general expectation serving to resolve potential conflicts of interest by regulating the
pursuit of those interests . . . then (4) every such moral expectation must
rest on reasons all those subject to (and affected by) the expectation can
accept in open debate, for otherwise the norm is not justified for those
subject to it, and thus its observance may not be expected of them (nor
may the noninterference of other affected parties be expected). (IS 667)

Rehgs conclusion (4) captures the standard of impartiality and it

does follow ineluctably from the above premises. Minor modifications
allow for a parallel derivation of the element of impartiality in the principle of democracy. Therefore I take the above to be a sound derivation
of the standard of impartiality for both the moral and political spheres.29
While acknowledging that his justification is weak, in that it is contingent on the two conditions articulated in (1) (IS 68), Rehg offers it
as an argumentation-theoretic explication of the commitment given in
(1) (IS 69). Thus, like Habermas, he connects modern normative standards to the process of argumentation itself. When in (1) he identifies
the conditions that must obtain before the standard of impartiality can
be derived, Rehg merely makes clear what Habermas left implicit,
namely that modern normative standards are justified only to persons
who are willing to resolve their conflict of interest by appeal to norms
they arrive at argumentatively. It is therefore no surprise that Habermas
should have endorsed Rehgs four-step justification (BFN 109, note 38).
As Rehg offers both a justification of the standard of impartiality
and a pluralistic reformulation of rational consensus, it would be
tempting to conclude that he has offered a justification that accommodates the pluralism of world-views. In fact he has not. If we are to
consider (4) as justified from the uncontroversial premises in (1), then
we must understand the ideas of equal access and equal participation
in (2) to be necessary consequences of the decision to reach argued
agreement in (1). If this is the case, then Rehg has assumed that argued
agreement is to be understood in Habermass narrow and controversial
way. The standard of impartiality derived in (4) is justified to those who
will act on norms that they arrive at by means of the practice of argumentation as it is narrowly described by Habermas. As we saw in
Section I, one can only claim that equal access and equal participation
are necessary presuppositions in a process oriented towards rational
consensus, based on the same reasons. This narrow understanding of
rational consensus and the presuppositions of argumentation are both

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necessary requirements within Habermass consensus theory of validity.
They come in a package.
Equal access and equal participation are not necessary presuppositions in the dialogical process described by Rehg (as well as McCarthy,
Bohman, and Grimen) where a consensus is arrived at for different
reasons.30 In this pluralistic conception of rational consensus, a speaker
X who tailors the reasons that she offers listeners Y and Z to their
respective world-views, is unable to take at least one set of these reasons
seriously herself.31 Indeed, knowing the differences in world-views
between herself, Y and Z, X may not emphasize the reasons that
convince her of norm Ns validity. In such a practice it does not matter
to X how misled Y and Z are in their reasons for accepting N. Whatever
its merits, a process structured in this way is inconsistent with a consensus theory of validity (WT 250, 252). Within this theory, in which
validity-claims are considered analogous to truth-claims, the force of the
better argument requires that the parties be convinced by the same
reasons. If in Rehgs (2) equal access and equal participation are to be
considered necessary presuppositions, then the derivation of the
standard of impartiality is tied to the consensus theory of validity.
Rehgs four-step derivation of impartiality can act as a justification
only by relying on the narrow understanding of rational consensus as
agreement reached for the same reasons. His pluralist rendition of
impartiality, on the other hand, relies on the broad understanding. This
means that when persons who would refer to norms in resolving their
conflicts of interest try to arrive at a standard with which to judge these
norms, they are expected to engage in argumentation, in Habermass
strict sense. In such a process the presuppositions of argumentation
would justify to them the standard of impartiality in the principles of
democracy and universalization. Hence, when they use the above principles to judge proposed norms, they can be sure that these are universally valid standards. However, they can have this assurance only if the
process they are involved in is oriented towards Verstndigung, where
they either rely on or aspire towards a single (albeit revisable) Sprachsystem. For the four-step derivation to act as a justification, Rehg must
imagine the differences in world-view between these parties to be such
that one Sprachsystem can be found in which they dissolve.
It is true that Rehgs pluralist reformulation of impartiality allows
each of those who are divided by deep differences to rely on their worldview when they come to apply the idea of impartiality to a proposed
norm under consideration. Yet, what need do they have for this flexibility if their differences in world-view can be absorbed within one
Sprachsystem when the standard of impartiality is justified to them? If
their differences can be transcended when impartiality is justified to
them, then these same differences can certainly be similarly transcended

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when time comes to apply this criterion to proposed action norms. The
justification that Rehg offers for modern normative standards cannot
accommodate the kind of plural consensus in which parties accept a
norm for different reasons. To parties engaged in the dialogical practice
in which each is convinced on her own terms, impartiality is not necessarily justified. Only if these same parties are imagined to overcome their
differences in another discourse can impartiality be justified to them.
This means that in the conversation between the Muslim believer and
the liberal atheist that we left behind in Section III, if these two figures
are engaged in a dialogue oriented towards a broad consensus achievable for different reasons, the believer can reject the principle of universalization and the principle of democracy without being caught in a
performative contradiction. When she engages with her liberal interlocutor in such a process she is not subject to Habermass or Rehgs
justification of the standard of impartiality. Discourse theory can make
room for the Muslim believer, but it cannot by putting the screws on
her reveal to her that she is already committed to human rights and universalist morality. If she is not already committed to the moral and
political intuition of impartiality, she will need to be persuaded to
become thus committed.

Conclusion
Discourse theory, once it is reformulated in such a way as not to count
on the possibility of a single Sprachsystem, becomes inhospitable to the
universal pragmatic justification that Habermas had provided for
human rights and universalist morality. The latter justification, it has
turned out, implicitly assumes the universality of secular cognitivists.
Now that Habermas seems to have abandoned his justification, he has
indicated that his theory was not meant to rest on such an assumption,
nor presumably on such a hope. Having paid a dear price for the
accommodation of pluralism, however, he still has one important step
to take explicitly. Habermas needs to adopt the broad conception of
rational consensus that his friendly critics have for some time been
urging upon him. There is no longer any reason for him to insist that a
rational consensus must be reached for the same reasons.
Critical as my argument has been of Habermass justification project
and of Rehgs attempt to rescue it, it is offered in a spirit of genuine
regret that such a promising path should have turned out to be a deadend. A committed universalist, I am unable to swallow ( la Richard
Rorty) the wholesale crediting of a particular culture or way of life with
the standards of human rights and modern morality.32 Rather, I belong
to those who need the assurance that these standards universal

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significance is due to their universally demonstrable worthiness, and not
merely to the fortuitous outcome of western hegemony. Habermass
universal pragmatic justification was not a traditional foundationalist
argument. It sustained the hope that ethnocentrism and contextualism
may not be the inevitable consequences of the linguistic turn in philosophy. Its failure, however, brings again to the forefront the question of
whether philosophy in the aftermath of this turn can possibly offer the
assurance that committed universalists need.
I have no alternative path for philosophical justification of human
rights and universalist morality to offer. For now, it is probably worth
bracketing the above question, and instead of despairing, committed
universalists ought to consider whether our stand might not ultimately
be vindicated in practice. A practical political project of moral persuasion could yield a consensus on human rights and universalist morality.
Were such a consensus to be achieved in practice, and were committed
universalists to know that it was achieved without pressure, manipulation and deception, but in good faith and freely, we might be able to
have our assurance, even if philosophy turns out to be incapable of
offering it. A project of moral persuasion would entail justifying human
rights and universalist morality piecemeal, to each of the challengers
within her own framework.33 The goal would be to forge a global overlapping consensus over the worthiness of impartiality as a political and
moral standard and over the commitment to the equality and freedom
of persons that it implies, on the basis of different reasons embedded in
different world-views.34 Such a practical project is daunting and risky.
It is not guaranteed to succeed. If it is to offer us the assurance we need,
it will have to leave open the possibility that in the process we ourselves
might be convinced out of our own commitments. I venture to speculate that such a risk is worth taking. For now, we would do well to
define the nature and parameters of the persuasive enterprise that could
yield such a consensus and provide us with the assurance that, after the
failure of Habermass justification, we more desperately need.
Department of Political Science, San Diego State University, CA, USA

PSC

Notes
1 The Theory of Communicative Action, Vol. 1, trans. T. McCarthy (Boston,
MA: Beacon Press, 1984), hereafter TCA1; and The Theory of Communicative Action, Vol. 2, trans. T. McCarthy (Boston, MA: Beacon Press,
1987), hereafter TCA2. The nature of the justification that Habermas
offered in these works is sociological in character, and differs from the

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3
4

5
6

9
10
11

12

philosophical justification he offered in later works. I discuss this distinction in Section III.
Moral Consciousness and Communicative Action, trans. C. Lenhardt and
S. Nicholsen (Cambridge, MA: MIT Press, 1993), hereafter MCCA; see in
particular pp. 78 and 197. Justification and Application, trans. C. Cronin
(Cambridge, MA: MIT Press, 1993), hereafter JA; see in particular
pp. 769. Between Facts and Norms, trans. W. Rehg (Cambridge, MA: MIT
Press, 1996), hereafter BFN; see in particular p. 2. Habermass side of his
exchange with John Rawls is published in The Inclusion of the Other, ed.
Ciarnan Cronin and Pablo De Greiff (Cambridge, MA: MIT Press, 1998),
hereafter IO; see p. 68.
Remarks on Legitimation through Human Rights, In The Postnational
Constellation, trans. M. Pensky (Cambridge, MA: MIT Press, 2001),
hereafter RL; see pp. 11329.
Furthermore, rather than seeking to justify the equal entitlement to
inclusion central to constitutional democracy, he assumes its desirability by
merely pointing out that legitimations based on religions or world-views
of this sort are incompatible with the inclusion of equally entitled nonbelievers or persons of other persuasions (RL, 127). Thus he leaves the
worthiness of equal entitlement undefended and unjustified.
Constitutional Democracy: a Paradoxical Union of Contradictory Principles, Political Theory 29(6) (December 2001): 76681; hereafter CD.
Thomas McCarthy, Practical Discourse, in Ideals and Illusions
(Cambridge, MA: MIT Press, 1991); Legitimacy and Diversity, Cardozo
Law Review 17 (1996): 10831125. Harald Grimen, Consensus and
Normative Validity, Inquiry 40 (1997): 4762 (esp. 49). James Bohman,
Public Deliberation (Cambridge, MA: MIT Press, 1996), p. 92; see also
pp. 45, 88, 89.
See, for example, Habermass insistence on this point in his Reply to
Symposium Participants, Benjamin N. Cardozo School of Law, in
Habermas on Law and Democracy: Critical Exchanges, ed. M. Rosenfeld
and A. Arato (Los Angeles: University of California Press, 1998), p. 395.
Habermas is also insistent on this point in IO, p. 86.
Seyla Benhabib must have recognized the link. For, as soon as she directed
serious attention to the question of difference in the early 1990s, she
dispensed with the justification, albeit without much explanation as to why
her focus on difference made this necessary. See Situating the Self (New
York: Routledge, 1992), p. 30; hereafter STS.
Max Weber, Science as a Vocation, In From Max Weber, ed. H. Gerth and
C. Mills (New York: Oxford University Press, 1946), p. 155.
William Rehg, Insight and Solidarity (Berkeley: University of California
Press, 1994), hereafter IS.
Much of the controversy in modern political thought centers precisely on
the question of what would count as a sufficiently legitimating link between
a norm and the wills of the individuals to whom it rightly applies. Locke,
Rousseau, Kant and Hegel each provide very different responses to this
question, thus laying out the terrain of many a current debate.
Jrgen Habermas, Wahrheitstheorien, in Wirklichkeit und Reflexion:

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Walter Schulz zum 60. Geburtstag (Pfullingen: Verlag Gnther Neske,
1973), hereafter WT see p. 214; See also JA 50; MCCA 92.
13 These presuppositions which undergird everyday communication come to
the surface in rational discourses. Every participant in argumentation
necessarily presupposes these rules which Habermas borrows from Robert
Alexy. They include the following:
1

Every subject with the competence to speak and act is allowed to take
part in a discourse.
2a Everyone is allowed to question any assertion whatever.
2b Everyone is allowed to introduce any assertion whatever into the
discourse.
2c Everyone is allowed to express his attitudes, desires, and needs.
3 No speaker may be prevented, by internal or external coercion, from
exercising his rights as laid down in 1 and 2. (MCCA 89; numbering
mine)

14

15
16

17

18

These rules of argumentation specify the presuppositions that every participant in argumentation makes implicitly.
Following Benhabib in Toward a Deliberative Model of Democratic Legitimacy, in Democracy and Difference (Princeton, NJ: Princeton University
Press, 1996), p. 78 and STS 30, as well as William Rehg (IS 624), I take
these two principles to capture the core of Alexys rules. The category of
all competent speakers is a broad one that can be specified in any number
of ways depending on the subject-matter under discussion.
John Stuart Mill, On Liberty, ed. E. Rapaport (Indianapolis, IN: Hackett,
1978), pp. 1552.
These presuppositions are inherent in everyday communication. However,
their role as presuppositions of communication is distinct from their role as
presuppositions of argumentation. Habermas insists on this distinction. I
explain its significance at the end of Section III. It has to do with the distinction between Habermass sociological argument in TCA1 and TCA2 and
his more recent philosophical justification.
The difference between practical discourses and discourses over truth is that
theoretical scientific discourses are the arbiters of propositional truth-claims
about the objective external world, while practical discourses are the
practices in which social norms claims to validity are redeemed when
rationally motivated agreement is achieved, (MCCA 88). Habermas
acknowledges that propositional truth is different from validity in that it
has no internal relation to consensus (JA 527). He also moderates his claim
to suggest that the assumption of a single right answer to a normative
question is merely a presumption pending the construction of a framework
within which such an answer can be found. Nonetheless he continues to
insist on the analogy. See his response to Thomas McCarthy in Habermas
on Law and Democracy, p. 404, and his response to John Rawls (IO 82).
According to Max Weber, modern law is stable only to the extent that it is
believed to be legitimate and to the extent that it is enacted from sources
believed to be legitimate. See Economy and Society, ed. G. Roth and C.
Wittich (Berkeley: University of California Press, 1978), pp. 31, 36. For

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19

20

21

22

23

24

Habermas, this empiricist reduction of the question of legitimacy bypasses

its core. By declining to ask about the modern legal and political orders
worthiness to be recognized, Weber avoided the question of what makes
it deserving of legitimacy. He simply engaged in Thrasymachuss sophistic
trick of turning the question of What is the just [legitimate]? to What is
considered to be just [legitimate]? (See Communication and the Evolution
of Society (Boston: Beacon Press, 1979), p. 203.
Any limitation of the language of the discourse in this regard jeopardizes
its status as a vehicle of truth and universal validity; it would then be a
partial framework that arbitrarily excludes some perspectives, needs and
interests and that conduces towards an ideological consensus.
Seyla Benhabib and Maeve Cooke have argued that (U) is both redundant
and controversial. Their claim is that since moral principles affect all, and
since the moral discourses envisaged in (D) are open to all, then there is no
need to specify that everyones interests be taken into account, for everyone
is already conceived to be part of the moral discourse. See (STS 37) and
Maeve Cooke, Language and Reason (Cambridge, MA: MIT Press, 1994),
p. 152. In my view (U) cannot be dispensed with. By requiring the participants to take on the moral point of view, it compensates for the inevitable
shortcomings of actual discourses.
The system of rights, which has the principle of democracy at the core, can
be derived from the interpenetration of (D) and the legal form as such (i.e.
the concept of law in general) (BFN 112). This, however, is not a controversial idea for Habermas to import. This means that the participants in
discourses over legitimacy already assume the legal form as a way to
stabilize behavioral expectations (BFN 122). The legal form brings into
these discourses the idea of rights and liberties (BFN 123). However, the
legitimacy of legal norms is not determined by the legal form itself. Only
by bringing in the discourse principle can one show that each person is owed
a right to the greatest possible measure of equal liberties that are mutually
compatible (BFN 123). With Benhabib I take this derivation to be sound
(Democracy and Difference, p. 78).
Any system of law, including a feudal one, can be expected to offer some
measure of individual liberty, some conception of membership, some expectation of legal protection and some kind of popular consultation. The above
list of rights guarantees that a law or a political system is legitimate only if
(1) each person is the bearer of rights and liberties (this precludes the possibility of slavery or legal death), (2) the rights and liberties of each person,
including the right to political participation, are equal (this precludes legal
privileges, a system of apartheid, and a paternalist system), and (3) the
liberties and rights are as extensive as is compatible with equal liberties and
rights for all citizens (this precludes an authoritarian form of government).
My focus throughout is only on the impartiality provision of the principle
of democracy. The entire principle cannot be derived from the presuppositions of argumentation. Rather, as I have observed in note 21 above, the
concept of law has to be introduced from the outside.
Persons engaged in argumentation over empirical questions of truth are not

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necessarily susceptible to Habermass justification of the principles of

universalization and democracy.
Habermas adheres to G. H. Meads claim that communicative action is
anthropologically fundamental, and that it determines the range within
which historical lifeworlds can vary (TCA2 144).
McCarthy, Practical Discourse, in Ideals and Illusions, and Legitimacy
and Diversity.
His attempt is unlike Benhabibs in that it continues to insist on the centrality of consensus and seeks to save Habermass justification.
He adds an empathy requirement (reminiscent of Benhabibs representative
thinking in STS 53, 133) that enjoins each participant to inhabit the world
of the other discussion partners, at least enough to present and assess
arguments those partners could accept (IS 82).
A parallel derivation of the impartiality provision in the principle of
democracy would be as follows. If one assumes (1) that a pluralistic group
decides to [organize the basic structures of their society] cooperatively by
reaching argued agreement [among themselves] (as rational conviction) on
[basic laws]; and if (2) a commitment to argument means treating all
competent speakers on the issue as equal dialogue partners in this argument;
and finally, if (3) a [law] is a shared general expectation [supported by force]
serving to resolve potential conflicts of interest by regulating the pursuit of
those interests; then (4) every such [enforceable law] must rest on reasons
all those subject to (and affected by) it can accept in open debate, for
otherwise the [law] is not justified for those subject to it, and thus its observance may not be expected of them [nor may its enforcement be considered
legitimate].
Margaret Kohn has correctly argued in this vein that dialogue itself cannot
achieve its own necessary preconditions: Language, Power, and Persuasion, Constellations 7 (2000): 40829, 41719. See also Cooke, Language
and Reason, p. 31.
Translation across frameworks, and the fact that the frameworks are not
isolated and not incommensurable, is alone not enough to render the
practice Rehg relies on an argumentative one, in which the presuppositions
identified by Habermas and Alexy are implicit. See IS 77, note 26, where
Rehg places great weight on the commensurability of frameworks.
On the inadequacy of Rortys ethnocentrism see my Liberalism and Ethnocentrism, Journal of Political Philosophy (2) (June 2000): 20726.
Habermas treats anything short of a consensus arrived at for the same
reasons as tantamount to a strategic compromise. A project of moral
persuasion would have to be designed to tap the normative potential of the
immense spaces between these two poles.
Unlike the overlapping consensus of Rawlss Law of Peoples, which is very
thin and does not include the above commitment, this would have to be a
thicker consensus, but with the important disadvantage that it is not yet in
place and would still need to be forged. For a discussion of Rawls on this
topic see my From Arms Length to Intrusion: Rawls Law of Peoples
and the Challenge of Stability, Journal of Politics (2) (May 1999): 31330.

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