Ratio Juris. Vol. 24 No.

1 March 2011 (25–48)

Habermas, Feminism, and Law:

Beyond Equality and Difference?* raju_472 25..48

SARAH SORIAL

Abstract. In this paper, I argue that Habermas’ proceduralist model of law can be put
to feminist ends in at least two significant ways. First, in presenting an alternative to
the liberal and welfare models of laws, the proceduralist model offers feminism a
way out of the equality/difference dilemma. Both these attempts to secure women’s
equality by emphasising women’s sameness to men or their difference from men
have placed the onus on women to either find a way of integrating themselves into
existing institutions or to confront the so-called question of women’s difference. The
proceduralist model renders this dilemma irrelevant. Instead, it proceeds from the
fact of sexual difference; a fact that produces competing and conflicting needs and
interests that require interpretation by both men and women. This, I argue, marks a
change in the very way we conceptualise the so-called problem of women’s
difference, insofar as the question is no longer framed in these terms. Second, I argue
that this deliberative process over the interpretation of conflicting interests affects a
fundamental shift in the nature of legal institutions themselves, insofar as law is no
longer a vehicle for promoting male interests.

In Between Facts and Norms, Jürgen Habermas develops a proceduralist

model of law that is grounded in deliberative procedures; these procedures
are, in turn, grounded in a system of rights that ensures equal rights of
participation in the law making process. Essential to this conception of
legal legitimacy is that the deliberative and decision-making procedures in
question be guided by the discourse principle. The discourse principle
states that: “Just those action norms are valid to which all possibly affected
persons could agree as participants in rational discourses” (Habermas
1998a, 138). This new paradigm of law is intended to perform a number of
different functions. It is intended to move beyond both the liberal and
welfare models of law, to re-establish the lost connection between private

* This research has been supported by the Australian Research Council under the Discovery
Projects scheme (DP 0879258) “Can saying something make it so? Sedition, speech act theory
and the status of freedom of speech in Australia” and by the Faculty of Law Legal Scholarship
Support Scheme.

© 2011 The Author. Ratio Juris © 2011 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main
Street, Malden 02148, USA.
26 Sarah Sorial

and public autonomy, and to provide a normative framework for thinking

about rights and oppression.
My primary aim in this paper is to assess the relevance of Habermas’
proceduralist model of law for securing feminist objectives. I take these
objectives to include the analysis and critique of patriarchal institutions,
concepts and relations; securing the equal representation of women in
public life; protection from rape, sexual harassment, domestic violence,
discrimination in education and the workplace, and the protection of
freedoms in general and reproductive freedoms in particular.1 I suggest
that the proceduralist model can be put to feminist ends in at least two
significant ways. First, in presenting an alternative to the liberal and
welfare models of laws, the proceduralist model offers feminism a way out
of the equality/difference dilemma. Both these attempts to secure women’s
equality by emphasising women’s sameness to men or their difference
from men have placed the onus on women to either find a way of
integrating themselves into existing institutions or to confront the so-called
question of women’s difference.2 The proceduralist model renders this
dilemma irrelevant. Instead, it proceeds from the fact of sexual difference;
a fact that produces competing and conflicting needs and interests that
require interpretation by both men and women.3 This, I argue, marks a
change in the very way we conceptualise the so-called problem of women’s
difference, insofar as the question is no longer framed in these terms.
Second, I argue that this deliberative process over the interpretation of
conflicting interests effects a fundamental shift in the nature of legal
institutions themselves, insofar as law is no longer a vehicle for promoting
male interests; a shift that feminists have long thought necessary to achieve
the aforementioned objectives.

1
While there is significant divergence in feminist views, I suggest that all feminists would
agree to these objectives to greater or lesser degrees. The significant point to be made, as
Patricia Smith argues, is that the rejection of patriarchy is the primary goal of all feminism:
“it is an irreducible point, and it distinguishes feminism from all other theories” (Smith 1993,
9). I also reject the claim that there is no identity to the category of woman, given the
significant differences that exist between women. While individual women will no doubt
experience oppression differently, there is nonetheless a commonality about women’s expe-
riences in relation to male dominance.
2
While many feminists have argued that this dialectic needs to be overcome, and have
suggested that the sameness/difference dilemma is a misformulation of the problem, some
feminists still think that the question of women’s so-called difference—whether socially
constituted or innate—cannot be ignored. For example, Georgia Warnke writes: “to ignore this
question is to condemn feminists to a Sisyphean struggle in which their efforts to achieve
equality for women by emphasizing the sameness of men and women are undermined by
protestations of women’s social or biological difference in which their efforts to secure
substantive opportunities for women by emphasizing their innate or constructed needs are
undermined by demonstrations of their human sameness” (Warnke 2000, 62). Although
Warnke does go on to argue that Habermas does offer a response to this struggle.
3
Arguably, the claim I am making is consistent with feminist pragmatism, in the sense that
it is anti-essentialist, and conceives of law as a process of conflict resolution, notwithstanding
its gender bias.

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 Habermas, Feminism, and Law 27

My secondary aim is to defend the deliberative model of law from the

charge that it is inherently masculine, and thus, reproduces gender inequal-
ity. The emphasis on a public life governed by reason and rights has been
criticized on the grounds that it reproduces a conception of public reason
that has traditionally been used to exclude women. The deliberative model
also assumes that everyone who is affected by an issue has the capacity to
contribute to public debate. It thus ignores the various social, cultural and
familial constraints on one’s capacities to contribute to law making.4
These concerns over public reason, I suggest, not only rest on a mis-
understanding of Habermas’ account of communicative reason, but risk
reproducing the very binaries between reason and affect that have been
used to exclude women from public life.5 With reference to Habermas’
account of communicative rationality, I demonstrate the way in which
one’s ability to contribute to informal public debate does not depend on
one’s intellectual capacities, or education, as contended by these criticisms,
but merely depends on one’s capacity to give reasons—whatever they may
be—for one’s position by way of language. I also demonstrate the way in
which these criticisms fail to distinguish between the cultural and political
spheres and between the spheres of ethics and justice. I conclude by
demonstrating the way in which Habermas’ model is actually closer to
feminist concerns than feminists have traditionally conceded.6

1. The Proceduralist Model of Law

According to Habermas, the function of modern law is to provide a means
for keeping together complex, pluralist and centrifugal societies. This

4
Many feminists have made this argument against Habermas’ deliberative model. For the
purposes of this paper, I focus on the criticisms made by Iris Marion Young. For others, see
Fraser 1995; Dean 1995; Fleming 1995. For a discussion of these positions in relation to
Habermas’ earlier work in A Theory of Communicative Reason, see Johnson 2000. For a more
general discussion on this problem of participation, see Geenens 2007. As Geenens 2007, 366
points out, actual debate on this deliberative model assumes, and may even require, that
everyone is able to contribute equally. It requires that each person should receive an equal
chance to exercise her communicative freedom and to take a position on criticizable validity
claims. But not all participants in a debate are in an equal position. Invariably, there are some
who will have more expertise in particular areas and who are in a better position to
understand the complex effects of various decisions. Such an inclusive discourse principle
thus assumes that everyone affected by a particular issue can contribute, irrespective of
expertise and understanding. Given the highly technical and specialized nature of law in
modern societies, and the complexities of the issues it must regulate, it is not clear what
contribution informal public discussion can make. A full examination of this difficult question
is outside the scope of this paper. Suffice it to say that my position is that in principle,
Habermas’ deliberative model is not exclusionary.
5
While Habermas’ deliberative politics is somewhat different from his earlier work on
communicative rationality and discourse ethics, it remains informed by his theory of com-
municative rationality.
6
For other arguments defending Habermas’ model on feminist grounds see Warnke 2000;
Johnson 2000; Meehan 2000.

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28 Sarah Sorial

integrative capacity of law is made possible by virtue of certain formal

properties that legal norms possess: Modern law is both enacted or positive
and enforced or coercive; it requires nothing more of its addressees than
conformity to its norms, but it also has to meet the expectation of legitimacy.
In this sense, modern law is “Janus-faced”: It permits individuals to comply
for strategic or prudential reasons—from fear of sanctions—or for normative
reasons—from respect for the law’s legitimacy.7
The law’s legitimacy is determined by the discourse principle according to
which legal norms are deemed legitimate only if all possibly affected persons
could agree to them as participants in rational discourse. “Those affected”
include anyone whose interests are affected by the foreseeable consequences
of a general practice regulated by the norms at issue. Rational discourse
refers to any attempt to reach an understanding over problematic validity
claims that takes place under conditions of communication. These condi-
tions must enable the free processing of topics and contributions, informa-
tion, and reasons in the public space (Habermas 1998a, 107–8).
The discourse principle forms the basis of Habermas’ proceduralist model
of law, intended to replace both the liberal and welfare state models
(Habermas 1998b). This model performs three fundamental shifts: It shifts
the locus of legislative and decision-making power from the formal institu-
tions of the state and locates it in the communications of an unsubverted
public sphere. The public sphere is in turn, tied to the “associational network
of a liberal civil society and gains support from the core private spheres of
the lifeworlds” (ibid., 18). Second, this model shifts the normative expecta-
tions from the level of the actors’ qualities, competences and opportunities
to the forms of communication in which opinion-formation can develop and
interact with the formal organs of the state (ibid., 18). Third, it re-establishes
the lost connection between private and public autonomy.
The liberal model of law depends on a separation between the economic
sphere, the individual/private sphere and the state. This “private law
society” was tailored for the autonomy of legal subjects, who, as market
participants, would seek and find their happiness by pursuing their own
particular interests as rationally as possible (ibid., 15). On this account, the
principle of legal freedom implied equal protection for all persons. Equal
protection for all was to be guaranteed through the formal universality of
legal statutes. The existence of these formal laws would, presumably,
ensure social justice: “The expectation of social justice was implicitly linked
with the demarcation of nondiscriminatory conditions for the actual exer-
cise of those liberties granted by legal norms regulating contracts, property,

7
See Habermas 2001. Habermas writes: “modern law leaves its addressees free to approach
the law in either two ways. They can consider norms merely as factual constraints on their
freedom and take a strategic approach to the calculable consequences of possible rule-
violations, or they can comply with the regulation ‘out of respect for the law’ ” (ibid., 114–5).

© 2011 The Author. Ratio Juris © 2011 Blackwell Publishing Ltd. Ratio Juris, Vol. 24, No. 1
 Habermas, Feminism, and Law 29

inheritance, and association” (ibid., 15). That is, so long as all persons were
given equal formal rights in law, social justice would follow as a matter
of course.
This was, however, based on dubious economic assumptions about
equilibrium in market processes, and the distribution of wealth and social
power. Rather than protecting the ideals of social equality and freedom by
means of formal law, an enormous gap opened up between formal and
substantive equality, as inequalities in economic power, assets and social
opportunities became more apparent (ibid., 15). This meant that the
universal right to equal individual liberties could no longer be guaranteed
through the negative status of the legal subject. A different model was thus
necessary to redress these emerging inequalities.
The welfare state model emerged in response to the fact “that legal
freedom, that is, the legal permission to do as one pleases, is worthless
without actual freedom, the real possibility of choosing between the
permitted alternatives” (Alexy 1985 cited in Habermas 1998b, 15). Unlike
the liberal market model, which leaves the market economy to its own
spontaneous forces, the regulatory welfare state intervenes once conditions
go beyond a point determined by the “limits of social tolerance” (Haber-
mas 1998b, 17). The state is held accountable for crisis conditions perceived
to result from its own deficiencies in planning and intervention (ibid.).
State intervention does, however, come at the cost of the private autonomy
of its citizens. While the welfare state model provides each individual with
a material basis for a dignified existence by guaranteeing social security,
health care, housing, income provisions, education, and leisure, it also
imposes and expects “normal” patterns of behaviour on the part of its
clients. According to Habermas, “this normalizing pressure obviously runs
the risk of impairing individual autonomy, precisely the autonomy it is
supposed to promote by providing the factual preconditions for the equal
opportunity to exercise negative freedoms” (ibid.).
Nowhere have these tensions between formal (liberal) and materialized
(welfare) law been more apparent than in the case of women’s rights. These
two models have also been the source of the tension between equality and
difference that has characterized much of the feminist debate about the issue
of women’s rights. As Habermas points out, the classical feminism stem-
ming from the nineteenth century understood the equality of women in
terms of equal access to existing educational institutions, public offices, gov-
ernments, and so on.8 The liberal rhetoric of equal rights was intended to
make gender irrelevant to social status, education, job prospects and political
power. But simply removing formal restrictions on women’s participation in
public life did not provide equal opportunity. As Habermas notes:

8
This has generally been the position of “second-wave feminism.” See Barnett 1998 for an
historical overview of shifts within feminism.

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30 Sarah Sorial

Liberal politics was supposed to bring about the inclusion of women in a society
that has hitherto denied them fair chances to compete. The difference between the
sexes supposedly would lose its social relevance once the differential access to the
relevant spheres was overcome. However, to the extent that the formal equality of
women was implemented in some important social spheres, the dialectic of legal
and actual equality was also felt. (Habermas 1998a, 421)

Granting women formal equality did little to challenge the traditional

stereotypes that continued to disadvantage women. Nor did it accommo-
date women’s biological differences, or address the problem of the unequal
division of domestic labour. Women who did manage to break into the
traditionally male fields of economics, law, politics or academic life found
themselves faced with the choice of relinquishing their personal life,
or working a double day, a choice that men did not have to make (Smith
1993, 4).
The welfare state model recognized the embodied differences between
men and women and developed protective norms in relation to pregnancy
and maternity, custody rights, divorce, domestic violence and sexual
assault. These norms and rights “cluster around the clear biological dif-
ferences connected with reproduction” (Habermas 1998b, 22). But like the
liberal model before it, the welfare state model also had some ambivalent
consequences for women. Legal provisions for maternity and pregnancy
only increased the risk of women losing their jobs while protective labour
laws only reinforced segregation in the labour market or led to the over
representation of women in lower wage brackets (ibid.).
The problem with both the liberal and welfare models of law is that
regulatory law merely reinforced existing stereotypes of gender identity.
Both models assume that equal entitlements of the sexes can be achieved
within the existing institutional framework and within a culture dominated
and defined by men. Habermas writes:

To the extent that legislation and adjudication in these cases are oriented by
traditional interpretative patterns, regulatory law consolidates the existing stereo-
types of gender identity. In producing such “normalizing effects,” legislation and
adjudication themselves become part of the problem they are meant to solve. As
long as the “normal work relation” of the fully employed male serves as the
standard for “deviations” that need to be offset, women are forced by compensa-
tory regulations to adapt to institutions that structurally disadvantage them.
(Habermas 1998b, 23)

The liberal and welfare-state models of law do not conceive of gender

relationships in terms of two equally problematic, and at times, conflicting
variables that are in need of interpretation. Rather, they place the onus on
women to assimilate to existing institutions that have traditionally served
the interests of men, but do little to challenge the nature of the institutions
themselves. By treating men and women as the same, the liberal view

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 Habermas, Feminism, and Law 31

ignored genuine physical and social differences in a way that disadvan-

taged the majority of women. By treating women as different, the welfare
view risked perpetuating the traditional stereotype of women as biologi-
cally domestic and dependent.
But the relevant question, as feminists such as Rhode point out, is not
whether women are or are not “like” men in respect to a given occupation,
or whether they are different from men; rather, the question is whether that
occupation can be redefined and restructured to make those differences less
occupationally relevant (Rhode 1989, 97). Such an approach, Rhode argues
“demands that feminists shift self-consciously among needs to acknowl-
edge both distinctiveness and commonality between the sexes and unity
and diversity among their members” (ibid., 97). It also requires a different
model of law that is able to negotiate these tensions and complex issues as
they arise.
The deliberative model of law provides one way out of the sameness/
difference dialectic, and, more significantly, guarantees that women are
participants in the law-making process. This model requires that the
affected parties themselves conduct public discussions in which they
articulate their needs, interpret their rights, and take responsibility for the
law making process about issues that affect them. The deliberative model
makes no prior assumptions about what those needs may be. It does not
assume, for example, what black women, or indigenous women, or
migrant women would want; it does not attempt to define women in terms
of a fixed identity or to constrain women within pre-defined categories. On
this model, all identities and assumptions are up for re-negotiation. By not
assuming to know what women want or need prior to deliberation by the
affected parties themselves, such a model also avoids state paternalism.
Moreover, as Rummens points out, actual deliberation has a twofold
epistemic function. First, actual deliberation is necessary for heuristic
reasons, in the sense that only the people involved or affected by a
particular issue have the lived experience of their own particular situation.
This epistemic privilege means that only they can make sure that all the
problems, needs, and values that they consider relevant are introduced into
the discursive process (Rummens 2007, 346).9 Second, actual discourse has
a transformative function. Actual deliberation requires that citizens “adopt
the perspective of all others,” and in doing so, subject their own prefer-
ences, interests and interpretations to critical examination and assessment.

9
Also see Benhabib 1996; Gutmann and Thompson 1996; Young 1996; Cohen 1999. In this
respect, the deliberative model is consistent with feminist epistemology, which argues that
members of oppressed groups have “epistemic privilege” or “double vision” in seeing how
power operates in the construction of knowledge. According to Fricker, “life led at the sharp
end of any given set of power relations provides for critical understanding (of the social world
in the first instance) where a life cushioned by the possession of power does not” (Fricker
2000, 147).

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32 Sarah Sorial

This process is transformative in the sense that citizens come to an

enlarged understanding of the issues, and possibly, correct or revise their
views. Habermas writes: “the moral point of view calls for the extension
and reversibility of interpretative perspectives so that alternative view-
points and interest structures and differences in individual self-
understandings and worldviews are not effaced but are given full play in
discourse” (Habermas 1995, 58).
The third function of deliberation is to re-establish the lost connection
between private and public autonomy; a connection that is severed by both
liberal and welfare models of law:

[A]fter the formal guarantee of private autonomy has proven insufficient, and after
social intervention through law also threatens the very private autonomy it means
to restore, the only solution consists in thematizing the connection between forms
of communication that simultaneously guarantee private and public autonomy in
the very conditions from which they emerge. (Habermas 1998b, 23)

By conceiving of autonomy in terms of a self-sufficient private individual,

the liberal model framed private autonomy in a way that prevented the
individual from projecting his or her particularistic concerns into public
discussion. The welfare model undermined private autonomy through
excessive intervention in citizens’ private lives. By conceiving of private
and public autonomy as co-originary or mutually dependent on one
another, the deliberative model is able to re-establish the lost connection
between public and private autonomy.
It is able to do this because on this model, legitimate law can only
emerge from the communications of an unsubverted public sphere that is
ultimately rooted in “the core private spheres of the lifeworld” (Habermas
1998b, 18). This means that the realisation of one’s private autonomy
depends on the articulation of one’s needs in the public sphere; this, in
turn, ensures the public recognition of one’s needs. Recognition of one’s
needs, particularly the public recognition of one’s oppression, helps realize
and promote one’s private autonomy. For example, until recently, women
have never defined the injury of rape. The men who have defined it have
done so based on their own self-serving interpretation (consider, for
example, the marital rape exception). Until recently, a rape was said to
have occurred if the attack was random, the attacker was a stranger, and
used significant force, such that the woman could in no way fight back.
Rape was not something that happened to women in their bedrooms, a
violation inflicted on them by their husbands or partners. The failure to
address this “private” experience of oppression in law constitutes misrec-
ognition of this oppression and the women who suffer it. This undermines
a woman’s private autonomy because legally, socially and culturally,
women are not deemed as deserving of legal protections or bodily integ-
rity. As Catharine McKinnon puts it:

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 Habermas, Feminism, and Law 33

when you are part of a subordinated group, your own definition of your injuries
is powerfully shaped by your assessment of whether you could get anyone to do
anything about it, including anything official. You are realistic by necessity, and the
voice of law is the voice of power. When the design of a legal wrong does not fit
as it happens to you, as in the case with rape, that law can undermine your social
and political as well as legal legitimacy in saying that what happened was an injury
at all—even to yourself. (MacKinnon 1993, 146)

On the deliberative model, the realisation of one’s private autonomy

requires the activation of one’s political or public autonomy and vice versa.
Gaining legal recognition of one’s oppression and the indignity one has
suffered enables oppressed agents to see themselves as worthy and deserv-
ing of legal rights, and thus can enable that agent’s private autonomy.
There are, then, three implications of the deliberative model for securing
women’s rights. First, it means that because women have epistemic privi-
lege in relation to issues that affect them, they themselves must participate
in the deliberative process. Second, the requirement that women them-
selves must contribute to the law-making process effects a fundamental
shift in the nature of the institutions themselves—a point I will return to
in the final section. Third, because the deliberative model requires women
to name and articulate their oppression, it enables public recognition of it.
This recognition has political implications insofar as it puts aspects of
women’s oppression on the political agenda, and personal implications
insofar as it enables women to realize their personal autonomy.10

2. The Problem of Deliberation and the Problem of Consensus

Despite widespread agreement about the importance of deliberation in
liberal democracies, the meaning, scope and application of deliberative
practices in particular contexts are often contested. What, for example, is
meant by deliberation? What speaking styles does it admit or exclude?
Can the deliberative model accommodate disagreement? In this section, I
address these concerns, focusing in particular on the criticisms raised by
Iris Marion Young about the exclusionary nature of deliberation, and
criticism raised by Georgia Warnke about the idea of universal consensus.
Although Young endorses a discussion-based ideal of democracy, she
identifies two problems with how this ideal is usually articulated. First, by
restricting the concept of democratic discussion narrowly to critical argu-
ment, deliberative democracy assumes a culturally biased conception of
discussion that tends to silence or devalue some people and groups, and
exclude aspects of communication, including rhetoric, narrative, affect, and

10
The intersubjective nature of autonomy shares some similarities with relational accounts of
autonomy, which emphasize the social political and cultural dimensions of agency. See
Mackenzie and Stoljar 2000.

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34 Sarah Sorial

emotion (Young 1996, 120).11 Second, deliberative theorists tend to assume

that processes of discussion that aim to reach understanding must either
begin with a shared understanding or take a common good as their goal.
According to Young, the deliberative model of communication derives
from a specific institutional context of the modern West: scientific debate,
modern parliaments, and courts. These institutional forms, rules, and styles
have come to define the meaning of reason in the modern world. As ruling
institutions, however, they have been elitist and exclusive, and have
traditionally been dominated by white, upper-middle-class men. While
these institutions claim to pursue truth through norms of deliberation, they
often operate as forms of power that silence or devalue the speech of some
people (ibid., 123).
Consider, for example, parliamentary debates or argument in court.
According to Young, these are not free and open public forums in which
all people actually have the right to express claims and to give reasons
based on their own understanding: Rather these forms of deliberation are
deliberately competitive and antagonistic (ibid., 123). These forums require
assertive and confrontational speech rather than speech that is tentative,
exploratory, or conciliatory. In most actual situations of discussion, this
privileges male speaking styles over female.12
Furthermore, the norms of deliberation tend to privilege speech that is
formal and general, that proceeds from premise to conclusion and that
clearly lays out its inference structure. However, these norms of articulate-
ness must be learnt, and often exhibiting such speaking styles is a sign of
social privilege (ibid., 124). Thus, deliberation is not by its very nature
democratic because it is not equally open to all ways of making claims and
giving reasons. Forums such as courts and parliamentary bodies also
favour speech that is dispassionate and disembodied, rather than speech
that is emotive:

[T]hus expressions of anger, hurt, and passionate concern discount the claims and
reasons they accompany. Similarly, the entrance of the body into speech—in wide
gestures, movements of nervousness or body expressions of emotion—are signs of
weakness that cancel out one’s assertions or reveal one’s lack of objectivity and
control. Deliberative norms tend to privilege “literal” language over figurative
language such as hyperbole, metaphor, and so on. (Ibid., 124)

11
Joan Landes also argues that Habermas’ efforts to promote private autonomy by way of
public autonomy inevitably results in the suppression of those “with different ways of
talking.” See Landes 1995. I would suggest, however, that Habermas’ account of private
autonomy is actually much closer to relational accounts of autonomy, advocated by feminist
philosophers including Mackenzie, Meyers, and Brison, to name but a few. For further
examination of this model of autonomy, see Mackenzie and Stoljar 2000.
12
For example, there is empirical evidence to suggest that girls and women tend to speak less
than boys and men in speaking situations that are more adversarial. When women do speak
in such situations, they tend to give information and ask questions rather than state opinions
or initiate controversy. See Young 1996.

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 Habermas, Feminism, and Law 35

In our culture, these differences in speech correlate with differences of

social privilege. The speech culture of white middle-class men tends to be
more controlled and less emotive, while the speech culture of women and
racial minorities tends to be more excited, emotional, and embodied.
According to Young, a discussion-based theory of democracy needs to be
broadened to include more forms and styles of speaking than deliberative
theorists allow:

while argument is a necessary element in such effort to discuss with and persuade
one another about political issues, argument is not the only mode of political
communication, and argument can be expressed in a plurality of ways, interspersed
with or alongside other communicative forms. (Ibid., 125)

These ways include greeting, storytelling, and narrative (ibid., 123).

Young also takes issue with the emphasis of deliberative theorists on the
transformative process that takes place as a result of deliberation. That is,
the idea that we each come to debate with subjective preferences and
choices that are transformed into objective claims for the greater good
because we have been persuaded by the better argument (ibid., 125). Young
argues there are two problems with this way of constructing the process of
discussion. First, in contemporary pluralist societies we cannot assume that
there are sufficient shared understandings to appeal to in many situations
of conflict and decision-making (ibid., 123). Second, the assumption of
prior unity cancels out the need to overcome one’s own viewpoint. If
discussion succeeds primarily when it appeals to what the discussants all
share, then there is no need for discussants to revise their opinions or
viewpoints in order to take into account the perspectives and experiences
beyond them. The problem here is that the attempt to find unity based on
the common good will cancel out the perspectives of others:

When discussion participants aim at unity, the appeal to a common good in which
they are all supposed to leave behind their particular experience and interests, the
perspectives of the privileged are likely to dominate the definition of that common
good. The less privileged are asked to put aside the expression of their common
experience, which may require a different idiom, or their claims of entitlement or
interest must be put aside for the sake of a common good whose definition is
biased against them. (ibid., 126)

Carol Gould and Georgia Warnke also raise similar objections.13 According
to Gould, the telos of Habermas’ deliberative model—what characterizes its
aim and method—is agreement, and difference is something that is gotten
past. Gould writes that “the reciprocal recognition is for the sake of common
agreement rather than also for the sake of enhancing and articulating

13
See also McCarthy 1998 and Heath 2001 for an extensive examination of this point.

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36 Sarah Sorial

diversity. Diversity may be the original condition of a polyvocal discourse

but univocity is it normative principle” (Gould 1996, 172). Warnke suggests
that the ideal of universal consensus ignores the importance of differences in
the way different groups within a society might foresee consequences,
understand their interests or interpret the meaning of the norms under
dispute. Warnke asks: “Must we assume that there are interests that are
generalizable or that only one sort of attention to consequences or one way
of understanding our interests or our norms can be rationally justified?”
(Warnke 1995, 251). Warnke demonstrates the difficulty, if not impossibility,
of arriving at generalizable interests about the morality of controversial
issues such as surrogacy or contact pregnancies.
If, for example, we argue against the enforceability of surrogacy con-
tracts on the grounds that they allow for the sale of babies, we interpret the
norm at issue as one that involves the inviolability and dignity of human
beings and the sanctity of the infant-mother bond. Surrogacy contracts, on
this view, violate both the interests of babies and the interests of those who
may be pressured to sell their babies because of poverty, welfare policies
and so on (ibid., 251). But another way of arguing for the enforceability of
surrogacy contracts is on the grounds that human beings are free to do
whatever they want with their bodies, and that surrogacy contracts
promote the autonomy and equality of women. Prohibiting contract preg-
nancies, on this view, violates the rights of the mother to act in her interests
and the interests of childless couples (ibid.). Is there a generalizable interest
here that would tell us whether surrogacy contracts are legitimate or not?
And if so, with which group does it originate? (ibid.).
On Habermas’ view, the norms under consideration are not specific
norms governing legitimate reproductive practices; rather, they are more
general and abstract principles such as those of human rights or freedom
and equality of persons (ibid.). But as Warnke points out, applying abstract
principles does not bring us any closer to generalizable norms in relation
to this issue, as these principles will be interpreted differently by groups
and people, depending on their concerns and interests, as well as their
cultural traditions, values and upbringing (ibid., 252). For example, for
those who support the legitimacy and enforceability of surrogacy contracts,
the meaning of liberty would include the right of women to enter into such
contracts, and the meaning of equality includes women’s full social and
economic equality with men. Since the right of men to enter into repro-
ductive contracts for the sale of sperm is not questioned, questioning the
right of women to enter into similar and enforceable contracts not only
denies them their freedom and equality, but assumes that they are less
rational than men and more likely to change their minds about the terms
of the contract, and less capable of either calculating their own interests in
an autonomous manner or pursuing them (ibid., 251). For those who
oppose the enforcement of surrogacy contracts, the meaning liberty might

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 Habermas, Feminism, and Law 37

be interpreted as including a woman’s right to change her mind about a

decision as difficult as giving up her child, while the right to equality could
be interpreted as including the rights of poor women not to be exploited
by childless middle-class couples (ibid.).
Warnke rightly points out that such differences in the way we under-
stand the norms of liberty and equality do not seem to be differences that
can be transcended or overcome through argumentation in practical dis-
course. They are differences in our sensibility and concern, differences in
our understanding of the value of motherhood and parenting, and differ-
ences in what we take to be a good society (ibid., 251). These differences
appear to stem from our cultural heritage and our experiences, rather than
from the force of reason. Warnke writes:

surely we can give arguments for or against our understanding of the norms of
liberty and equality that are involved in the issue of surrogacy, but the ability of our
arguments to persuade others does not seem to be independent of their values,
traditions, and conceptions of the good. (Ibid., 251)

These criticisms, I suggest, miss the mark in a number of important ways,

and thus fail to see the potential of Habermas’ deliberative model for
achieving feminist ends. Part of the problem here, as Benhabib has pointed
out, is that many of these criticisms fail to distinguish between conceptual
and institutional critiques, arguing that democratic institutions and im-
partial public places are essentially, rather than accidentally, masculine
(Benhabib 1996, 81). The problem with this argument is that it implies that
women, on account of their very nature, are unable to meet the require-
ments of impartiality, and prefer less formal modes of communication.
This, I suggest, not only reproduces the very binaries between reason and
affect that have been used to exclude women from public life, but is also
based on a misunderstanding of Habermas’ account of communicative
rationality and the function it plays in his proceduralist model. Further,
these criticisms fail to distinguish between the social/cultural sphere and
the political, between informal forums of deliberation and formal policy
and law-making institutions, between ethics and morality, and the way in
which these various spheres interrelate. In the following section, I distin-
guish between these various spheres and delineate their functions in order
to defend the deliberative model from these criticisms. I then demonstrate
the critical opportunities afforded by Habermas’ two-track system of
deliberation for achieving feminist objectives.

3. Communicative Rationality and the Problem of Exclusion

Young has argued that norms of deliberation are exclusionary because they
tend to favour speaking styles that are assertive, confrontational and

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38 Sarah Sorial

antagonistic. They thus tend to privilege male speaking styles over female.
Young also uses the example of parliamentary forums and courts to
illustrate the exclusionary nature of the deliberative model. This, I suggest,
rests on a flawed interpretation of Habermas’ account of communicative
rationality. It also misses an important distinction Habermas makes
between informal and formal forums of deliberation and their interrelation
and thus mischaracterizes the role of communicative rationality in the
deliberative model.

3.1. The “Two-Track” Model

For Habermas, discourse theory is concerned with the “higher-level inter-
subjectivity” of processes of reaching understanding that take place
through democratic procedures or in the communicative networks of
public spheres. These processes of reaching agreement take place in a
variety of forums, including public opinion-formation, institutionalised
elections and legislative decisions. These forums are categorised in terms of
informal and formal processes of deliberation and together form Haber-
mas’ two-track model of deliberative democracy: “Deliberative politics
thus lives off the interplay between democratically institutionalised will-
formation and informal opinion-formation. It cannot rely solely on the
channels of procedurally regulated deliberation and decision-making”
(Habermas 1998a, 308). The two tracks of deliberation perform two differ-
ent functions.
Informal communication in the public sphere is disorganised, anarchic,
and uncoordinated. It provides an unregulated space for detecting new
problems, bringing them to public awareness without the use of specialised
language and suggesting ways to address them: “Because the general
public sphere is ‘unconstrained’ in the sense that its channels of commu-
nication are not regulated by procedures, it is better suited for the ‘struggle
over needs’ and their interpretation” (ibid., 314). In this way, “the com-
municative structures of the public sphere constitute a far-flung network of
sensors that react to the pressure of society-wide problems and stimulate
influential opinions” (ibid., 300). The public space is founded on a network
of associations that “specialise [. . .] in discovering issues relevant for all
society, contributing possible solutions to problems, interpreting values,
producing good reasons, and invalidating others” (ibid., 485). Only after
such a public struggle for recognition of issues as political can the respon-
sible political authorities take up the proposals, put them on a parliamen-
tary agenda and then legislate and make binding decisions in relation to
them. This is referred to as the formal track of the legislative process.
The formal track of deliberative decision-making is how informal delib-
eration is made into positive law by conventional political institutions and
the organs of the state. Formal political processes also include elections,

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 Habermas, Feminism, and Law 39

legislatures and courts. Their function is to assess ideas and solutions, and
to make authoritative decisions that will be accepted by those affected:

The operative meaning of these regulations consists less in discovering and

identifying problems than in dealing with them; it has less to do with becoming
sensitive to new ways of looking at problems than with justifying the selection of
a problem and the choice among competing proposals for solving it. The publics of
parliamentary bodies are structured predominantly as a context of justification. These
bodies rely not only on the administration’s preparatory work and further pro-
cessing but also on the context of discovery provided by a procedurally unregulated
public sphere that is borne by the general public of citizens. (Ibid., 307)

This two-track system displaces the principle locus of participation from

formal political institutions to the informal pubic sphere and provides a
way in which the public can come into politics. The case of domestic
violence is illustrative of how this two-track system functions. Domestic
violence was once deemed a “private” concern until feminists argued that
it was a matter of common concern, and was thus a legitimate topic for
public discussion. Public debate raised awareness of the issue and pro-
posals for addressing it were made. Political legislators took account of this
informal debate and enacted norms that rendered spousal abuse a criminal
offence.14
There are two things to note about the two-track model of deliberation:
First, it does admit of the different speaking styles that Young is concerned
with, including storytelling and narrative. In both the above examples, law
reform was initiated precisely because women were able to tell their
stories, in their own voices, in the public sphere. Second, it effects an
important shift in the nature of parliamentary and legal institutions, insofar
as it shifts the legislative and decision making power from the formal
institutions of the state and locates it in the public sphere. This shift of
power from the state to those affected by the norms in question is one that
feminists have long argued is necessary for achieving the aforementioned
feminist objectives, particularly since it avoids state paternalism.

14
Consider also the recent debate in Australia about radical reform to existing sexual assault
laws. After extensive community consultation and counseling of victims of sexual violence,
the NSW Rape Crisis Center (RCC) brought to the attention of legislators and the public the
need for radical law reform in this area in order to improve the complainant’s experience of
the criminal justice system. The RCC has recommended a range of initiatives, including a
“one stop” unit to provide victims with medical and forensic facilities, specialist sexual assault
courts with specially trained lawyers and judges, and law reform in relation to consent and
the abolition of the requirement that complainants give evidence in court and be subject to
cross-examination. These recommendations were devised in light of women’s experiences of
sexual assault and based on what they wanted from the criminal justice system. See RCC
Annual Report 2005–2006 at http://www.nswrapecrisis.com.au/Resources/Annual_Report_
2006.pdf.

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40 Sarah Sorial

3.2. Communicative Rationality

Habermas concedes that his account of discursive rationality is embodied
in argumentative practices, but this does not mean that it will function in
exclusionary ways, at least at the informal stage of deliberation. Commu-
nicative rationality is defined as speech that is oriented towards reaching
understanding and serves the following functions: First, it gives expression
to the intentions of the speaker; second, it represents a state of affairs; third,
it establishes interpersonal relations with a second person. Habermas
writes:

With his speech act, the speaker pursues his aim of reaching understanding with
a hearer about something. This illocutionary aim [. . .] is two tiered: The speech act
is first of all supposed to be understood by the hearer and then—so far as
possible—accepted. The rationality of the use of language oriented toward reaching
understanding then depends on whether the speech acts are sufficiently compre-
hensible and acceptable for the speaker to achieve illocutionary success with them.
(Habermas 1998d, 315)

The criterion for rationality here is comprehensibility; that is, a speech act
is rational if it is credible in the given circumstances and if the validity
claims raised by the speech act can be vindicated further through dialogue.
The rationality of a speech act thus depends on its possible justification.
Rational discourse does not, therefore, refer to strict rules of formal
argumentation; instead, it refers to any attempt to reach an understanding
over problematic validity claims that takes place under conditions of
communication. These conditions must enable the free processing of topics
and contributions, information and reasons in the public space.15 The rules
and procedures that apply to actual deliberation include that everyone
who can speak can take part in discourse, that everyone may question any
assertion, that everyone may introduce assertions, that everyone can
express his or her attitudes, wishes, and needs, that no speaker may be
prevented from exercising his or her rights and that any kind of coercion,
external or internal, is prohibited (Alexy 1992, 235). Actual discourse must
also take into account various elements of psychological and sociological
circumstances of the addressee of argumentation or the audience. In actual
discourse, rationality is realised by a collectivisation of argumentation, or

15
For this reason, the discourse principle is conceived in an abstract manner to reflect the
broad scope of communicative reason and so as not to limit the kinds of issues and
contributions that can be made or the kinds of reasons that can count in each case; nor does
it specify the forms of argumentation and bargaining. All that is necessary for the discourse
principle to function effectively as a medium for legitimation is the existence of a legal system
that guarantees certain liberties to its citizens. Such a political system ensures that the
population is “accustomed to liberty,” and that citizens use this liberty not for the exclusive
pursuit of personal interests, but as a form of “public reason” for the collective good. See
Habermas 1998c, 461.

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 Habermas, Feminism, and Law 41

in the context of interpersonal dialogue, rather than individual reasoning

and dialogue.16
The discourse principle does not, therefore, depend on a metaphysical
and exclusionary conception of reason, as contended by feminist critiques.
All it requires is that speakers know how to form grammatical sentences,
and how to base their interactions on validity claims that others will
accept, or that could be, if necessary, substantiated with good reasons.
Communicative action, and the discourse principle upon which it is based,
thus reflect a form of reason based on argumentation rather than practical
reason. It also shifts “the burden of justifying the effectiveness of practical
reason from the mentality of citizens to the deliberative form of politics”
(Habermas 1998a, 386). The normative expectation of legitimate law-
making does not, therefore, lie with the rational competencies of partici-
pants, but with the communicative procedures in place.
This language-theoretical approach to reason differs from the subjective-
theoretical concept of practical intelligence insofar as it does not assume
that all subjects can, in one way or another, think in the same way or want
the same thing. As Luhmann points out, for Habermas, social coordination
ceases to arise out of the facts of consciousness, available to every subject
through self-reflection and instead arises from linguistic practices
(Luhmann 1998, 159). Deriving normative content from the structures of
language means that there are no restrictions as to what can count as a
reason, and no specified forms of argumentation in the context of an actual
debate. All that is required for the deliberative model is an ability to speak;
that is, to assert a position and give reasons for it. In principle, there is no
reason why this cannot include the forms of expression Young refers to,
such as greeting, narrative, storytelling, or emotion. In actual deliberation
we rely on all of these modes of communication to make an argument or
to persuade others of a course of action. Communicative rationality does
not require a particular style or argumentation or speaking: It only requires
an ability to give reasons for one’s position. Just because actual delibera-
tion, in fact, often privileges certain styles of speaking over others, it does
not mean that in principle, it does this. Nor does it mean that these
speaking styles are appropriate at the formal level of deliberation.
While the informal stage of deliberation can admit of different speaking
styles and modes of communication, formal institutions such as parliaments
and courts do not. This, however, does not render the deliberative model
exclusionary in the way Young contends. As Benhabib points out, greeting,
storytelling, and rhetoric cannot become the public language of institutions
and legislatures in democracy because in order to attain legitimacy, demo-
cratic institutions require that they articulate the justifications for their

16
Cf. Karl-Otto Apel’s account of discourse philosophy, which also rejects “monological”
reasoning in favour of interpersonal reasoning and argumentation. See also Weinberger 1992.

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42 Sarah Sorial

actions and policies in discursive language that appeals to commonly

shared and accepted public reasons. The attempt to introduce more partial,
affective and situated modes of communication could have the undesirable
consequence of inducing arbitrariness in the law-making process. Rhetoric
and emotion might cause people to act without having to give an account
of the reasons as to why they chose a particular course of action over
another. Benhabib writes:

[I]n short, some moral ideal of impartiality is a regulative principle that should
govern not only our deliberations in public but also the articulation of reasons by
public institutions [. . .] without such a normative principle, neither the ideal of the
rule of law can be sustained nor deliberative reasoning toward a common good
occur. (Benhabib 1996, 83)

The two-track system not only ensures that all those affected by a norm are
included in informal debate, but also effects a fundamental shift in the
nature of legal and political institutions themselves. The contribution of
women to the law-making process ensures that the issues that affect them
are placed on political and legal agendas in ways that reflect women’s
interests, rather than men’s. Consider, for example, the effects of this
institutional shift in relation to the debate about abortion that took place in
Australia in 2006 in the context of whether Australian women should have
access to the abortifacient RU486. As with all debates about abortion in
Australia, parliamentary representatives were permitted to vote according
to conscience, in the form of a “conscience vote” or “free vote”; that is, a
vote that is not in line with party policy. Of interest for my purposes is the
way women parliamentarians affected the outcome.
Prior to the 2006 decision, many women parliamentarians identified the
conscience vote in relation to abortion as the major obstacle to law reform.
Women argued against the continued framing of abortion as an issue of
conscience, and instead argued that political parties should adopt a specific
policy, and subject its members to the ordinary processes of party disci-
pline on the issue. According to Pringle, without party initiation and
backing, women thought that no reform of abortion law would be con-
templated or successful (Pringle 2007). This was primarily on account of
the limited number of women in parliament. The conscience vote on
abortion meant that men, based purely on their religious and moral
convictions, made laws in relation to issues that affected women.
The debate that occurred in 2006 and its outcome were markedly different
from the one in 1979. According to Pringle, when the House of Represen-
tatives voted against amendments to abortion law in 1979, there were no
women in the House; in 2005, the gender balance had changed signi-
ficantly in both Houses. Seventy per cent of Liberal/National Party women
voted in favour of the Bill and only two Labour women Senators voted
against it. The group most opposed to the Bill consists of conservative

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 Habermas, Feminism, and Law 43

Liberal/National Party men, with only 40% of the total members of this
group in parliament voting in favour of the Bill. Now there are greater
numbers of women in parliament, who—across party lines—are over-
whelmingly in favour of easier access to abortion and broadly pro-choice in
regard to related issues, reflected not only in a new alignment in parliament,
but in the scope and extent of reform that is possible when women are given
an opportunity to contribute to the law-making process (ibid., 17). The
deliberative processes in this particular case marked an institutional shift or
change in relation to this contentious issue.

4. The Problem of Consensus

Young and Warnke have argued that Habermas’ account of deliberation
will inevitably efface differences because of its emphasis on universal
consensus. According to Warnke, while we can give arguments for why
certain measures are proportionate to a given end, assent to such argu-
ments presupposes shared values and a shared understanding of the issues
that often simply does not exist. This is especially the case for controversial
issues such as surrogacy and abortion. I suggest, however, that this
criticism fails to distinguish between culture and politics, and between
ethics and morality.
Warnke is right to point out that given the diversity of worldviews and
conceptions of the good that exist in pluralist societies such as ours, and
given the differences in our interpretations of abstract principles such as
liberty and equality, it is often difficult, if not impossible, to come to an
agreement about certain contentious issues. Be that as it may, decisions still
need to be made about the regulation of practices such as surrogacy and
procedures like abortion, notwithstanding irresolvable value conflicts
between people. To make sense of this dilemma—the dilemma of how to
both agree and disagree with one another—we need to distinguish
between the level of cultural and social dialogue, or ethical decision-
making, and the level of democracy or pragmatic decision-making.
For Habermas, in the course of any deliberation about pragmatic legal
issues, the question “what ought we to do” will invariably raise a number
of ethical-political questions. These questions emerge from the conflicting
preferences and interests that will emerge in the course of deliberation.
They require the particular community to clarify their collective self-
understanding or shared forms of life that are found to be opaque and to
reinterpret their traditions and values:

Serious value decisions result from, and change with, the politicocultural self-
understanding of a historical community. Enlightenment over this self-
understanding is achieved through a hermeneutics that critically appropriates
traditions and thereby assists in the intersubjective reassurance or renovation of
authentic life orientations and deeply held values. (Habermas 1998a, 160)

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44 Sarah Sorial

The type of deliberation required for addressing these ethical-political

concerns differs from pragmatic deliberation insofar as it is concerned with
both a description of identity-shaping traditions and the normative projec-
tion of a particular way of life. The deliberation is concerned with the
existential question of who we collectively are and who we would like to be.
But these dialogues about our collective identity are not necessarily the
same as what we want from the state. Ethical dialogue, as Chambers points
out, does not design, implement and adjudicate policy. Rather, these
conversations contribute to broad and informal opinion and identity
formation, which influence the type of policy democratic citizens might
support. Chambers writes: “The crucial democratic role that interpretative
conversations play is not so much in directly shaping public policy but
rather in shaping, reshaping, criticizing, and unmasking the cultural under-
standings that underpin public policy” (Chambers 2000, 79). The important
point to note here is that ethical conversations do not have a definable end;
they are ongoing, even once the decision has been made. The political
decision to give Australian women access to RU486 did not end the debate
about abortion; nor will specific laws in relation to surrogacy enable us to
reach consensus about our interpretations of liberty and equality. Never-
theless, decisions about these issues must be made, and they must be made
in a way that is just, or that is in the interests of all those affected.
Questions of justice take the same form as moral questions insofar as
they share the same semantic form of categorical or unconditional impera-
tives. That is, they require impartial judgment, and must meet the test of
universalizability. This is determined by assessing whether a particular
decision can be regarded as equally good for everyone affected: “An
adequate justification of policies and laws must, however, consider yet a
further aspect, that of justice. Whether we should want and accept a
program also depends on whether the corresponding practice is equally
good for all” (Habermas 1998a, 161). For Habermas, true impartiality refers
to that standpoint from which one can generalize norms that can count on
universal assent because they embody an interest common to all affected.
It requires that all those affected adopt the perspectives of all others in the
balancing of interests (Habermas 1990, 65).
There is, then, an important distinction between questions of ethics and
questions of justice that is often blurred in criticism of Habermas’ delib-
erative model. Habermas concedes that even sufficiently inclusive public
discussions have shown that contested issues such as abortion and eutha-
nasia cannot be neutrally framed in relation to worldviews or ideologies.
What we are faced with in these cases is a value conflict that cannot be
resolved either by discourse or by compromise:

In a constitutionally organized pluralistic society, such an ethically controversial

issue may not be regulated under the ethically permeated description of a

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 Habermas, Feminism, and Law 45

self-understanding that, from the perspective of the universe of fellow citizens, is

just one among several collective self-interpretations (even if it is that of the
majority culture). (Habermas 1998c, 392)

Nevertheless, decisions have to be made about the regulation of practices

like surrogacy and abortion, notwithstanding irresolvable value conflicts
between people.
It is here that the distinction between questions of justice and questions
of the good life comes into play. Questions of the good life are ethical
questions. They are questions of who we are and would like to be.
Questions of justice, by contrast, concern “what is equally good for all.”
This level of abstraction requires a shift in perspective:

each participant must turn away from the ethical question of which regulation is
respectively “best for us” from “our” point of view. They must, instead, take the
moral point of view and examine which regulation is “equally good for all” in view
of the prior claim to an equal right to coexist. (Ibid., 393)

The point of such a shift in perspective is to enable parties to arrive at a

morally acceptable solution—a regulation acceptable to each party for the
same reasons—but that also leaves the value conflict unresolved.
For example, I may have a strong ethical position about the immorality
of abortion, but a shift in perspective would enable me to realize that
making my position legally binding is not in the equal interests of all.
Making my position binding on everyone would only force abortion
underground where it cannot be regulated. This would compromise the
safety and health of women seeking abortions, and impose additional
emotional and psychological burdens on them. There are women who
choose to have abortions for a variety of legitimate reasons, and having
made this difficult choice, they should have easy access to safe abortion.
That is, I may disagree with abortion per se, and still maintain that abortion
should be legal, safe, and readily available to women because this would
be in the equal interests of all. Habermas writes:

“We” (for instance, as Catholics confronted by a “liberal” abortion law) may

continue at an ethical level to abhor the legally permissible practice of others as we
have in the past. Instead, what is legally required of us is tolerance for practices that
in “our” view are ethically deviant. (Habermas 1998c, 393)

Habermas accepts that agreement over abstract norms such as the equal
right to coexist does not provide a basis on which conflicts could be
resolved in principle. Nor does it contain proscriptions for their application
to specific situations. As Warnke points out, the norms at issue in the
debate about surrogacy contracts—the norms of liberty and equality—are
agreed to by all those concerned; however, this agreement over abstract

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46 Sarah Sorial

norms does not yield rights answers. But to demand that it can or should
yield right answers to these debates is to confuse political and legal
questions with ethical ones. The idea that we cannot (and probably never
will) reach agreement over controversial issues because of intractable
differences in value orientations and understanding assumes that we either
must agree over these issues, or that they are essentially irresolvable. If we
adopt the former view (often attributed to Habermas), then we are guilty
of subsuming difference and making decisions based on the majority
(male, white, and privileged) view. If we adopt the latter view, then politics
becomes impossible. Distinguishing between the ethical and the political in
the way Habermas does keeps our ethical disagreements alive, but also
recognizes that despite our ongoing lack of consensus, decisions have to be
made, and they have to be made in such a way that they can be considered
legitimate by all those concerned.
Habermas’ deliberative model is not therefore inherently masculine or
exclusionary in the way some feminist thinkers have claimed. The require-
ment that all those affected by a particular norm participate in the debate
about that norm not only offers a way of overcoming the equality/
difference dilemma that has preoccupied much feminist thinking, but also
necessitates an important institutional shift. This shift is one that feminists
have long argued is necessary for any substantive changes to the status of
women’s rights. In this sense, Habermas’ model may be closer to feminist
concerns than feminists have traditionally conceded.

Faculty of Arts
The University of Wollongong
Wollongong NSW 2522
Australia
E-mail: sarahs@uow.edu.au

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