Lasse Thomassen Deconstructing Habermas

Deconstructing Habermas

11. Classical IndividualismThe Supreme Importance of Each Human BeingTibor R. Machan

12. The Age of ReasonsQuixotism, Sentimentalism and Political Economy in Eighteenth-Century BritainWendy Motooka

13. Individualism in Modern ThoughtFrom Adam Smith to HayekLorenzo Infantino

14. Property and Power in Social TheoryA Study in Intellectual RivalryDick Pels

15. Wittgenstein and the Idea of a Critical Social TheoryA Critique of Giddens, Habermas and BhaskarNigel Pleasants

16. Marxism and Human NatureSean Sayers

17. Goffman and Social OrganizationStudies in a Sociological LegacyEdited by Greg Smith

18. Situating HayekPhenomenology and the Neo-liberal ProjectMark J. Smith

19. The Reading of Theoretical TextsPeter Ekegren

20. The Nature of CapitalMarx after FoucaultRichard Marsden

21. The Age of ChanceGambling in Western CultureGerda Reith

22. Reflexive Historical SociologyArpad Szakolczai

23. Durkheim and RepresentationsEdited by W. S. F. Pickering

24. The Social and Political Thought of Noam ChomskyAlison Edgley

25. Hayek’s Liberalism and Its OriginsHis Idea of Spontaneous Order and the Scottish EnlightenmentChristina Petsoulas

26. Metaphor and the Dynamics of KnowledgeSabine Maasen and Peter Weingart

27. Living with MarketsJeremy Shearmur

28. Durkheim’s SuicideA Century of Research and DebateEdited by W.S.F. Pickering and Geoffrey Walford

29. Post-MarxismAn Intellectual HistoryStuart Sim

Routledge Studies in Social and Political Thought

30. The Intellectual as StrangerStudies in SpokespersonshipDick Pels

31. Hermeneutic Dialogue and Social ScienceA Critique of Gadamer and HabermasAustin Harrington

32. Methodological IndividualismBackground, History and MeaningLars Udehn

33. John Stuart Mill and Freedom of ExpressionThe Genesis of a TheoryK.C. O’Rourke

34. The Politics of Atrocity and ReconciliationFrom Terror to TraumaMichael Humphrey

35. Marx and WittgensteinKnowledge, Morality, PoliticsEdited by Gavin Kitching and Nigel Pleasants

36. The Genesis of ModernityArpad Szakolczai

37. Ignorance and LibertyLorenzo Infantino

38. Deleuze, Marx and PoliticsNicholas Thoburn

39. The Structure of Social Theory Anthony King

40. Adorno, Habermas and the Search for a Rational SocietyDeborah Cook

41. Tocqueville’s Moral and Political ThoughtNew LiberalismM.R.R. Ossewaarde

42. Adam Smith’s Political PhilosophyThe Invisible Hand and Spontaneous OrderCraig Smith

43. Social and Political Ideas of Mahatma GandiBidyut Chakrabarty

44. Counter-EnlightenmentsFrom the Eighteenth Century to the PresentGraeme Garrard

45. The Social and Political Thought of George OrwellA Reassessment Stephen Ingle

46. HabermasRescuing the Public SpherePauline Johnson

47. The Politics and Philosophy of Michael Oakeshott Stuart Isaacs

48. Pareto and Political TheoryJoseph Femia

49. German Political PhilosophyThe Metaphysics of LawChris Thornhill

50. The Sociology of ElitesMichael Hartmann

51. Deconstructing HabermasLasse Thomassen

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Deconstructing Habermas

Lasse Thomassen

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ix

Contents

Acknowledgments xi

Introduction 1

1 The aporias of rational consensus 15

2 ‘A bizarre, even opaque practice’: Constitutionalism and democracy 43

3 The inclusion of the other? Tolerance 69

4 Civil disobedience within the limits of deliberative reason alone 95

5 Towards an ethics of discussion 121

Notes 147Bibliography 173Index 183

xi

Acknowledgments

Although this book carries my signature on the cover, it would not have been possible without the help and support of a number of people. I would like to thank the following people for the comments on and criticisms of the argument of the book: Andreas Antoniades, David Bailey, Olaf Corry, Simon Critchley, Jonathan Dean, Mark Devenney, Peter Dews, Jason Gly-nos, John Horton, David Howarth, Ernesto Laclau, Chad Lavin, Lars Ethel-berg Nielsen, Aletta J. Norval, Paulina Ochoa-Espejo, David O’Donnell, Ian O’Flynn and Lars Tønder and Albert Weale. The book would also not have been possible without the support of the institutions where I worked during the time that I was writing the book: fi rst the Department of Gov-ernment and especially the Ideology and Discourse Analysis Programme at the University of Essex, and later the Department of Politics and Public Administration at the University of Limerick. I would also like to mention those of my students — at Essex and Limerick, and at the discourse theory summer schools in Essex and Wellington — who had to sit through my seminars on Habermas and deconstruction and who responded to my read-ings of Habermas and Derrida. Finally, I would like to thank my editors at Routledge — Terry Clague in London and Benjamin Holtzman in New York — who responded to my endless queries.

Chapter 2 is an extended and revised version of ‘“A Bizarre, Even Opaque Practice”: Habermas on Cosmopolitanism and Democracy’, in The Derrida–Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edin-burgh University Press, 2006), 176–94. Chapter 3 is an extended and revised version of ‘The Inclusion of the Other? Habermas and the Paradox of Tolerance’, Political Theory 34, no. 4 (2006): 439–62. Parts of chapter 5 appeared in an earlier version in Norwegian as ‘Habermas og Derrida: fi losofi en i ei kritisk tid’, trans. Åsmund Forfang, Syn & Segn 4 (2005): 22–34.

1

This book is a deconstructive reading of the political philosophy of Jür-gen Habermas. In the book, I bring deconstruction to work on key issues in Habermas’s work: rational discourse and rational consensus, constitu-tional democracy, tolerance and civil disobedience. The aim is to contrib-ute to an understanding and critique of Habermas’s theory of society and politics. My main argument is that Habermas’s attempt to rationalize poli-tics through his notion of communicative reason ultimately fails. However, the problem with Habermas does not lie in the way he tries to rationalize politics, but in the very attempt to rationalize politics. Thus, the response should not be to try to rationalize politics in other ways, but to look for different ways of thinking about political issues. My wager is that decon-struction and the work of Jacques Derrida can help in doing so, and that deconstruction is better suited to address the issues I examine in the chap-ters that follow.

This book is not just about Habermas and Derrida. The issues that arise in the context of Habermas’s political philosophy are important issues for contemporary political philosophy: the relationship between constitution-alism and the courts on one side and democracy and popular sovereignty on the other side, the tolerance of religious difference, new forms of politi-cal protest, and so on. What is more, the debate between Habermas and Derrida may be said to be one of those defi ning debates in philosophy and, by extension, legal, political, and social theory. It is defi ning in the sense that it refl ects a larger debate between, on the one hand, critical theory, and on the other hand, deconstruction and post-structuralism. The two sides of the debate may be extended to include, on the former side, moder-nity, reason, and Enlightenment and, on the latter side, post-modernism, rhetoric, and the critique of reason. Although this is certainly one way of understanding the debate between Habermas and Derrida, I shall qualify the stark opposition in the following. Still, important differences remain between Habermas and Derrida, and this book is not an attempt to merge the two or to integrate arguments from one into the other. Nor is it simply a comparison of the two bodies of work. Rather, the book is an argument for

Introduction

2 Deconstructing Habermas

the pertinence of Derridean deconstruction, and I hope the book will also serve to develop deconstruction in the context of political philosophy.

To get a better idea of the stakes of the Habermas–Derrida debate, I turn fi rst to look at the history of their debate. In the remaining two sections of the Introduction, I then explain some methodological issues related to the deconstructive reading of Habermas, and fi nally, give a brief overview of the structure of the book.

LET’S HAVE A ‘DISCUSSION’!

It is safe to say that the relationship between Jürgen Habermas and Jacques Derrida has been characterized by, in the words of Derrida, an ‘unusual shared history’—a ‘history of a friendship with obstacles’.1 On 31 May 2003 Habermas and Derrida published an article together in Frankfurter Allgemeine Zeitung and Libération on the future role of Europe. Due to illness, Derrida, with Habermas, was only able to write a brief preface to the co-signed article. In the preface, they wrote of the ‘necess[ity] and urgen[cy] that French and German philosophers lift their voices together, whatever disagreements may have separated them in the past’, thus echoing Derrida’s words on the occasion of Habermas’s 75th birthday: ‘each in his own country, but both in Europe’.2

During the last years before Derrida’s death in 2004, both the publi-cation of the jointly signed article and the respectful tone in their com-ments on one another’s works are remarkable.3 They must be seen against the backdrop of their earlier hostile exchanges in the 1980s when Haber-mas, Derrida, and their respective followers viewed the other side as at best irrelevant, at worst philosophically and politically dangerous. In 1985, Habermas published two chapters on Derrida in his book The Philosophi-cal Discourse of Modernity.4 The intellectual climate in Germany at the time was marked by an opposition between Enlightenment, reason, and modernity, on the one hand, and what Habermas, among others, saw as the dangerous postmodern and neo-conservative critique of reason on the other hand.5 If Habermas’s reading of Derrida was unsympathetic, so were Derrida’s responses to Habermas.6 As he later noted, he had responded ‘as far as possible with arguments, but admittedly a little polemical’.7 The change in intellectual climate from the 1980s to the late 1990s may not be without importance for the change in the tone of their exchanges. In the 1980s, Habermas’s reading of Derrida and deconstruction was cast in terms of either/or (either for or against reason, and so on). Today, with Derrida’s more explicitly political writings, Habermas may acknowledge Derrida’s allegiance to the ideals of the Enlightenment, even if he may still be suspicious of Derrida’s philosophical position and may not believe that Derrida can support his political ideals with a deconstructive philosophy.

Introduction 3

The changes in the debate between Habermas and Derrida may, thus, also refl ect the development of their works during the last two decades: Habermas has developed a discourse theory of law and democracy, and Derrida wrote more explicitly about ethical and political issues. In the pref-ace to their jointly signed article on Europe, Derrida writes that, despite his differences with Habermas, he

shares [his] defi nitive premises and perspectives: the determination of new European political responsibilities beyond any Eurocentrism; the call for a renewed confi rmation and effective transformation of international law and its institutions, in particular the UN; a new con-ception and a new praxis for the distribution of state authority, etc., according to the spirit, if not the precise sense, that refers back to the Kantian tradition.8

Whatever their differences, Derrida and Habermas are aligned against the same common adversaries: inequalities arising from neo-liberalist capi-talism, terrorism, including state-terrorism, nationalism, and xenophobia. In addition, as Derrida writes, Kant ‘means a great deal to Habermas and me’, something echoed by Habermas when he writes that, ‘[a]part from all the politics, it is the philosophical reference to an author like Kant that connects me to Derrida’.9

The development in Habermas and Derrida’s relationship is refl ected in the views of commentators. Initially, some commentators on the Haber-mas–Derrida debate divided themselves according to their allegiance to either Habermas and critical theory10 or Derrida and deconstruction.11 However, a number of commentators, while no doubt more sympathetic to one than the other, argued that the opposition between Habermas and Der-rida rested on misunderstandings. For instance, Christopher Norris argued that both Derrida and Habermas work within the tradition of Enlighten-ment and Kant, and that Habermas’s reading of Derrida as a total critic of reason was therefore misplaced.12 Richard J. Bernstein and Richard Rorty, in different ways, argued that the two thinkers are complementary, asking different but equally important questions.13 More recently, commentators have argued that Derrida and Habermas are more or less complementary when it comes to ethics and politics, suggesting that even if philosophical disagreements remain, it may be possible for Derrideans and Habermasians to engage in a meaningful dialogue at the level of ethics and, especially, politics. Thus, some have argued that, while there are philosophical differ-ences between Habermas and Derrida, one can supplement Habermas with Derrida,14 or Derrida with Habermas.15

In his celebration of Habermas’s 75th birthday in 2004, Derrida writes how, ‘at a “party”’ at the end of the 1990s, and ‘[w]ith a friendly smile, [Habermas] came up to me and proposed that we have a “discussion”’.16


In The Philosophical Discourse of Modernity, Habermas had written that Derrida ‘does not belong to those philosophers who like to argue’.17 In another context, he said of Derrida that ‘there I don’t get a foot in the door’, implying that, with Derrida, there was nothing resembling a philo-sophical or sociological argument for him to engage with.18 Derrida’s reply to Habermas was that ‘I am one of those who love “arguing”’.19 Nancy Fra-ser echoed Habermas’s accusation and the general exasperation of critical theorists with the perceived lack of concern for politics in deconstruction. She wrote,

there is one sort of difference that deconstruction cannot tolerate: namely, difference as dispute, as good, old-fashioned, political fi ght. And so, [Derrida’s fellow deconstructionists] Nancy and Lacoue-Lab-arthe are utterly…faithful to deconstruction in refusing to engage in politi cal debate.20

Despite the personal and political rapprochement between Habermas and Derrida, fundamental philosophical differences remain between their approaches. Those differences yield different answers to political ques-tions, especially different kinds of answers, even when the Habermasian and Derridean positions may seem to converge on the responses to terror-ism, globalization, immigration, and so on. In the chapters that follow, I continue the ‘discussion’ begun by Habermas and Derrida. I do so by ‘argu-ing’ with Habermas from a deconstructive perspective and drawing upon the work of Derrida and other deconstructionists.21 In the next section, I will explain what it means to ‘argue’ deconstructively with Habermas. The book is not just an argument against Habermas, but also an argu-ment for a deconstructive approach to politics. Although my allegiances are clearly with Derridean deconstruction, I nonetheless hope that the reading of Habermas will be a hospitable one. What a hospitable reading involves is also the subject of the following section.

A HOSPITABLE READING

Deconstructing Habermas — A Deconstructive Reading of Habermas: No doubt, the title and the content of this book will raise questions, fi rst, about what deconstruction means and, second, whether a deconstruction of Habermas’s texts does not simply mean the destruction of the distinc-tions and concepts that Habermas is working with, for instance autonomy, reason, and communication.

What is deconstruction? This is a diffi cult question, especially because, as an approach, deconstruction is critical of any attempt to defi ne or assign an essence through the copula ‘is’ as in ‘deconstruction is…’. (‘What is deconstruction? nothing of course!’)22 Yet, we must try to answer the ques-

Introduction 5

tion, because deconstruction must have some specifi city in order to be a label that can meaningfully be applied to a reading or an approach. (‘What is deconstruction not? everything of course!’)23 To be a meaningful label, deconstruction must have a certain content that can be repeated and recog-nized across different contexts and uses of it. Particular uses of deconstruc-tion must make a claim to be instances of something transcending each one of them: deconstruction. Yet, deconstruction—what ‘it’ ‘is’—does not exist independently of its particular uses; rather, the meaning of deconstruction is constituted through the particular uses of it. This is much like Wittgen-stein’s point that the rule is constituted through its application, which is in each case also a partial reinvention of the rule.24

Derrida writes about deconstruction that

[i]t’s not a general method. It’s not my property. Deconstruction is not a tool; of course there are some schemes, some types, regular types that you could use as a grammar, as a technique, but they are only second-ary things in deconstruction. Deconstruction is not a technique, is not a method.25

Derrida concludes that

there is a possible teaching of those devices [of deconstruction], but not of deconstruction as such, which is not a general method, which is linked to idioms. Deconstruction must be different in every language, in every idiom, in its relationship to every single work.26

A way to explain why each deconstruction must be singular is the follow-ing: it must be possible to repeat deconstruction across different instances and contexts. This suggests that deconstruction has a meaning that tran-scends and remains constant across the different uses of it. However, if we take the view that meaning is contextual and constituted through relations of difference, then each particular use of deconstruction will be new because occurring in a new context. Further, if we believe that no context can be determined in its entirety, it will be impossible to pin down the meaning of deconstruction with reference to its uses in one or several contexts. In short, it is always possible to rearticulate what deconstruction means— what it ‘is’—in new ways. In more deconstructive terms, as a concept or method, deconstruction must be repeatable, but its repetition involves the inherent possibility that it could be applied—or, rather, articulated—in dif-ferent ways in new contexts. Deconstruction, then, is always ‘deconstruc-tion’: always this or that deconstruction, always in the plural rather than a single and defi nable thing, essence, programme, and so forth. No account of deconstruction can ever claim to express the essence of deconstruction, as if there were one. Hence the quotation marks around ‘deconstruction’: there is only this or that deconstruction, not deconstruction as such or


in the abstract. We might add that, although there is no deconstruction that is simply applied, there is only applied deconstruction understood as the concrete and singular uses of deconstruction; it does not exist apart from its particular uses. In conclusion, a deconstruction has a performative dimension; as such, the deconstructive reading of Habermas’s texts also has my signature, not just that of Derrida or others who have written about or done deconstruction.

One cannot simply apply deconstruction because each application is also a partial rearticulation and, hence, singular. Deconstruction as method, we might say, is also the deconstruction of method, if by method we mean the application of a programme or technique to an object where the method is supposed to be a transparent medium. ‘Deconstruction’, Derrida writes, ‘is not neutral. It intervenes’.27 Deconstruction, then, is interested: it proceeds from certain interests and with certain interests, which may of course vary and which are not universalizable interests. So, my deconstructive reading of Habermas is not neutral. The reading is guided by, fi rst, an acknowl-edgement of Habermas’s importance for contemporary legal, political, and social philosophy; second, a dissatisfaction with key motives in Habermas’s thought, such as the emphasis on consensus and a particular notion of reason; and, third, the hypothesis that deconstruction can provide answers that are better suited to issues in contemporary politics.

Not only is the deconstructive reading of Habermas not neutral; when deconstructing Habermas’s texts, I do not take his texts to be fully consti-tuted entities whose meanings merely have to be appropriated and assessed according to the right criteria. Nor do I assume that, if they are not read-ily appropriable because marked by contradictions, the texts have to be corrected through hermeneutic or critical insight. Rather, I shall proceed on the assumption—an assumption that must itself be proved through the reading—that Habermas’s texts are inherently heterogeneous. By heteroge-neous I do not mean that they exhibit a heterogeneity that can be accounted for by reference to different periods of Habermas’s work, for instance with reference to an earlier and a later Habermas. Nor do I mean a heteroge-neity that can be accounted for by reference to intellectual oversight on Habermas’s part. Nor do I refer with heterogeneity to contradictions that could be resolved if only the correct logic were applied. Instead, by textual heterogeneity I refer to what, in Derridean terminology, are aporias and undecidabilities. I refer, then, to the points where the conceptual catego-ries and distinctions that dominate Habermas’s texts fail. Put differently, heterogeneity refers to the points where the conceptuality of Habermas’s conceptual categories and distinctions cannot be upheld.

For instance, in chapter 1, I look at the rationality of rational consensus and rational discourse. I argue that when we follow Habermas’s argument through, we fi nd that the rationality of discourse and consensus come up against a limit: discourse, deliberation, and communication become mean-

Introduction 7

ingless if a rational consensus is reached. Thus, at the heart of Habermas’s conceptions of communication and reason is a notion—namely, rational consensus—that is paradoxical. The deconstructive reading then tries to identify heterogeneities such as this in Habermas’s texts and to identify the ways in which Habermas attempts to deal with the heterogeneity; for instance, the paradoxical status of the notion of rational consensus. On the basis of that, my reading seeks to develop an alternative approach that does not seek to resolve the heterogeneity, but to respond to it, for instance by accepting heterogeneity, paradox, aporia, and undecidability as inherent to reason.

Consequently, the aim of the book is not a more ‘complete’ Habermas, nor is it to come up with a ‘better’ Habermas, for instance to retrieve a more ‘critical’ or ‘radical’ Habermas. Omid Payrow Shabani’s recent book on Habermas—Democracy, Power, and Legitimacy: The Critical Theory of Jürgen Habermas—provides a good example of this latter strategy. In the book, Shabani tries to ‘recover’ a more critical and radical Habermas by ‘synthesizing’ him with insights from Michel Foucault and Derrida. From Foucault, Shabani takes insights about power; from Derrida, he takes an argument about the constitutive nature of difference in contemporary soci-eties. Shabani argues that Derrida’s writings from the 1990s on law and justice not only provide us with a critical and negative impetus, but also with an affi rmative account of justice and democracy. In an argument that I return to later in the book, Derrida maintains that there is an unbridge-able gap between law and justice, and that the latter is therefore always ‘to come’. This highlights the always incomplete and (potentially) unjust char-acter of present law: ‘The value of Derrida’s view of democracy as à-venir [to come]’, Shabani writes, ‘is that it does not allow the complacency of the real to debilitate the pursuit of the ideal’.28 Difference—disagreement, the otherness of the Other, and so on—is not some obstacle to be overcome on the way to consensus as one may say it is in Habermas. Instead, Shabani argues, difference must be cultivated, because without it, there would be no democracy worth the name. Thus, complementing Habermas with Derrida is supposed to increase attention to difference and to energise delibera-tive democracy. The problem with Shabani’s argument is that he ends up arguing for a position that is not that far from Habermas, for instance by emphasizing procedure and process.29 In doing so, he assimilates Foucault and Derrida to the Habermasian paradigm, doing injustice to the radical implications of Foucault and Derrida’s arguments. My reading of Haber-mas in this book is not an attempt to create a better Habermas, and, con-tra Shabani, I will argue that taking Derrida and deconstruction seriously takes us beyond Habermas and critical theory in important respects.

Finally, I would like to stress that my deconstructive reading will try to avoid the temptation to portray Habermas as ‘Habermas the Rationalist’. This is for two reasons: First, I believe it would be misleading. One of my main points in the book is that Habermas tries to rationalize politics, but


this must not be misunderstood. First of all, Habermas works with a differ-entiated conception of rationality, distinguishing between communicative and instrumental rationality, where the former is oriented towards mutual understanding and the latter towards control of things or people. There is much to be said in favour of communicative reason, which forms the basis for Habermas’s theory of society and politics, when compared to instru-mental reason. Whatever diffi culties there may be in distinguishing a pro-cedural from a substantive notion of reason, there is also much to be said in favour of a more procedural notion of reason as favoured by Habermas. In addition, there are, for Habermas, things that can never be (completely) rationalized, and there is a legitimate place for those things in society and politics. For instance, as I shall discuss in chapter 3, religion is part and parcel of what Habermas calls post-secular society, but, importantly, reli-gious reasons can be distinguished from so-called political reasons, which are cast in an idiom common to all citizens. So, while Habermas allows religion a place in constitutional democracy, this is conditional on the rela-tive marginalization of religion, a marginalization that is achieved with the hierarchical distinction between religious and political reasons. This is one example of the ways in which Habermas attempts to rationalize politics, but, in chapter 3, I also show how this attempt ultimately fails because Habermas has to, at one and the same time, assert and chip away at the hierarchical distinction.

This brings me to the second reason why I shall not characterize Haber-mas as a Rationalist with a capital R: doing so would suggest that his attempts to rationalize politics had succeeded, and that there were only a single, rationalist logic governing his texts. Derrida says in the context of his deconstruction of philosophical discourse: ‘I try to keep myself at the limit of philosophical discourse. I say limit and not death’.30 In my read-ing of Habermas, I take his texts, not as homogeneous, but heterogeneous. So, when working on the limit of Habermas’s texts, that ‘limit’ refers to those places where Habermas attempts to achieve homogeneity and clo-sure, where he attempts to establish conceptual limits, but ultimately fails. The point is that there is more than a simple rationalist logic at work in Habermas’s texts; the deconstructive reading aims at the ‘limit’ of that rationalist logic, at the points where it falters. Again, I believe Habermas should not be rejected out of hand as a Rationalist; rather, one must show the ways in which Habermas attempts to rationalize politics and how these attempts ultimately fail. I try to do so in different ways in the fi ve chapters that follow. For instance, I examine the idea that rational consensus must be the telos of communication (chapter 1); the mutual implication between constitutionalism and democracy (chapter 2); the possibility of ridding the concept and practice of tolerance of inequality and arbitrariness (chap-ter 3); the possibility of ‘normalizing’ civil disobedience (chapter 4); and that there are and should be such things as stable concepts of philosophy, democracy, and justice (chapter 5). In each case, I examine how Habermas

Introduction 9

tries to establish the necessity of these conceptual relationships, catego-ries and distinctions and how these attempts ultimately fail. As mentioned above, the aim here is not to resolve those failures, but to think through some of their implications for politics. Ultimately, that will take us beyond the Habermasian framework.

My reading of Habermas does not oppose deconstruction, or Derrida, to Habermas, as if the former were a platform or programme from which to erect an alternative to Habermas’s critical theory. For the reasons already explained, deconstruction is and can be no such platform or programme. Rather, whatever deconstruction may have to contribute will only arise from the reading of Habermas and from similar readings of other authors, and of concrete historical and contemporary cases. As such, deconstruction is a piecemeal exercise.

How, then, does the deconstructive reading proceed? Here we can take as our starting point Habermas’s portrayal of deconstruction as

an exercise that for [Derrida] did not primarily involve doctrinal content, or even the acquisition of a vocabulary that opens up a new world view. Doctrinal content and the acquisition of a world-disclosing vocabulary are also involved. But the practice of micrological reading and the discovery of traces in texts that have resisted the passage of time is an end in itself. Derrida’s deconstruction, like Adorno’s negative dialectics, is essentially a performative exercise, a Praxis.31

I have already addressed the way in which deconstruction is not a given set of techniques to be applied across different cases, but I would like to add a few words about the aspect that Habermas here refers to as ‘micrologi-cal reading’. The deconstructive reading is a close or careful reading. The reading follows the text as closely as possible and reconstructs the argu-ment and logic of the text, but the reading also disrupts the text. It follows the text out of respect, we might say, not out of love, as love makes blind. Thus, I follow the conceptual system governing Habermas’s texts as far as possible until, at some point, the conceptuality is exhausted; this is what I referred to above, in Derrida’s terms, as aporias and undecidabilities. If method is the road (from hodos) to truth and critical insight through the appropriation of what is proper to the text (its meaning, its conceptuality, and the author’s intentions), then the deconstructive method focuses on the aporias—literally: non-passage—of the text. That is, the text is marked by irresolvable aporias, where the conceptuality of the conceptual categories and distinctions break down. Take, for example, tolerance, which is the subject of the third chapter. The aim of that chapter is not just to show that Habermas’s conception of tolerance is conditional and limited. He would himself say that it is. Rather, the aim is to show how the conditions and limits that Habermas places on tolerance cannot be rationalized, and how the relationship between tolerance and intolerance cannot be rationally


resolved, but only be the subject of political negotiation without rational foundations.

At the points where the rigour of Habermas’s conceptual categories and distinctions break down, the only way to respect or to be ‘true to’ the text is to disrupt it or intervene into it, although not in order to re-establish its conceptuality. Such a reading ought to be a just reading.32 It should be just in the sense of precise, following the text as closely as possible. This is in order to be just in a second sense, namely in the sense of fair to the singularity of the text, to its style, its meaning, its context of enunciation, and to Habermas’s intentions. Justice in this second sense requires that the reading not be imposed on the text from the outside, as it were, in a foreign idiom with its similarly foreign questions, understandings, and concepts; hence another reason to start from a micrological reading of the text.

When approached in this fashion, the deconstructive reading becomes a guest in Habermas’s texts insofar as it is grafted onto them. However, fol-lowing Derrida’s work on hospitality, we might say that the deconstructive reading is a rogue guest who oversteps the hospitality shown to it when disrupting the texts.33 In fact, already when pointing out that the texts are heterogeneous, the reading implies that Habermas is, so to speak, not completely at home within the texts; or, rather, that the texts have effects— highlighted by the deconstructive reading—that cannot be controlled and that escape Habermas’s conceptual categories and distinctions, and, by implication, his intentions.

But the deconstructive reading not only takes advantage of the hospital-ity of Habermas’s texts; hospitality also extends in the opposite direction. The deconstructive reading must show hospitality to Habermas in that it welcomes his texts: it puts them on the table, takes them seriously, and aims at a just reading, one that is both precise and fair. Yet, the reading is also an appropriation, one that cannot proceed in a neutral or trans-parent manner or entirely from inside the texts. Even when aiming at a just reading, the deconstructive reading necessarily proceeds in an idiom that is not Habermas’s and, thus, never just—whether precise or fair—but always doing violence to the text. The reading begins neither entirely from within nor entirely from outside Habermas’s texts. Looked at in this way, the deconstructive reading is not complete and cannot be the fi nal word; it calls for a response because of the violence it does to the texts and because, as a consequence, it can always be more just.34 For all these reasons, I hope that the following reading of Habermas is also a responsible reading that responds to its own limitations and to other possible readings; in short, a reading that responds to the irreducible heterogeneity of Habermas’s texts. As a hospitable and responsible reading, it does not escape a certain condi-tionality and closure, but I hope it also opens a space for a ‘discussion’ and an ‘argument’. I add quotation marks around ‘discussion’ and ‘argument’ to stress that the deconstructive discussion and argument with Habermas do not claim to be disinterested or transparent. But nor does the decon-

Introduction 11

struction of Habermas’s texts imply their destruction. I now turn to a brief overview of the argument of the chapters of the book.

FROM RATIONAL RECONSTRUCTION TO DECONSTRUCTION

The focus on consensus and rational consensus as the telos of communica-tion are without doubt the most heavily criticized elements of Habermas’s work, and they are the subject of the fi rst chapter, where I focus on the rela-tionship between consensus and difference. I argue—to a large extent by following Habermas himself—that there are not just empirical obstacles to rational discourse and rational consensus, but obstacles that are inherent to the very concept of rational discourse and consensus. That is, at the heart of the concept of rational consensus is an aporia that we may sum up in the following way: if rational consensus is the end of communication, it is also the end to further communication and deliberation. I then establish some of the implications of this aporia for the relationship between, on the one hand, consensus and, on the other hand, difference and disagreement. My main points are that this relationship is one of political negotiation; that a consensus is always one among other potential consensuses; and that it comes down to a matter of political negotiation which consensus we aim to establish. The chapter also addresses another, related issue with regard to the theoretical foundations of Habermas’s project: rational reconstruction. There is a partition in Habermas’s project between practical discourse and rational reconstruction. Citizens deliberate and make decisions in practical discourse, and the philosopher and social scientist rationally reconstruct the universal presuppositions of practical discourse, presuppositions that make those discourses and their outcomes rational. The last section of chapter 1 addresses the process of rational reconstruction as envisaged by Habermas, especially the status that Habermas assigns to the rationally reconstructed structures. Analogous to my argument about rational dis-course and rational consensus, my argument here is that we should not think of the universals as rational reconstructions, but as political articula-tions of the basic norms of society.

Chapter 2 takes up Habermas’s attempt to rationally reconstruct the struc-tures of constitutional democracy, focusing on the relationship between its two components: constitutionalism (or basic rights and the rule of law) and democracy (or popular sovereignty). This relationship, Habermas argues, is one of mutual implication: there is no democracy, properly understood, without constitutionalism, and vice versa. Constitutionalism, in the form of basic rights and the rule of law, specifi es the conditions under which democratic will-formation is fair, but constitutionalism must itself be medi-ated by democracy in order not to be paternalistically imposed on the citi-zens. The co-originality of constitutionalism and democracy is connected


to the Habermasian concept of autonomy as rational self-legislation under conditions of equality, full inclusion, and so on. In the domain of discourse ethics, this means that those possibly affected by norms must have agreed to them in a rational discourse. In the domain of law, autonomy means that the addressees of the law must be able to see themselves simultaneously as the authors of the law, and this is precisely what the symbiotic relation-ship between constitutionalism and democracy secures. However, Haber-mas is only able to reconcile constitutionalism and democracy by placing them within a quasi-teleological history, thus shielding their relationship from the contingencies of politics. The gap between constitutionalism and democracy is thereby closed, but at the expense of introducing elements that cannot be the subject of the citizens’ rational self-legislation. Furthermore, I contend that Habermas’s approach removes us from understanding and criticizing past and present struggles for constitutional democracy, strug-gles that are also struggles about what constitutional democracy means. Instead, I argue, we should rather think of constitutional democracy as marked by an ineradicable tension between its two components. As such, constitutional democracy is, with an expression from Derrida that I also take up in chapters 4 and 5, always to come, that is, never reconcilable or realizable in any present, including a future present.

Chapter 2 introduces Habermas’s idea of autonomy and legitimate law as arising from the identity and the addressees and the authors of the law. In his most recent work, Habermas brings this to bear on the norms of tol-erance, which is the subject of chapter 3. Deliberative democracy becomes the answer to the problems of the arbitrariness of the threshold of tolerance and the paternalistic relationship between the tolerating and the tolerated. If the norms of tolerance are decided among those affected by them in delib-erations marked by full inclusion and equality, so Habermas argues, then the norms can be said to be rational and autonomous. However, as men-tioned in the previous section, Habermas relies on hierarchical distinctions between ethical and political levels of societal integration and between reli-gious and political reasons. The result is a tension in Habermas’s texts: on the one hand, the distinctions help establish the equality of tolerance, but, on the other hand, they threaten to undermine it. Drawing on Derrida’s writings on hospitality, I argue that tolerance is marked by an irresolvable aporia in that inequality is simultaneously the condition of possibility and the condition of impossibility of tolerance (and that intolerance is similarly both the condition of possibility and impossibility of tolerance). The apo-ria means that there is no rational resolution to the problems of tolerance, ‘only’ political negotiation.

Civil disobedience, which is the subject of chapter 4, is linked to ques-tions of law and justice and political obligation. Habermas argues that civil disobedience is a normal part of constitutional democracy, and that it func-tions as part of democracy’s self-refl exive attitude. Of course, if the laws are legitimate and the outcome of rational self-legislation, then there is neither

Introduction 13

need nor room for civil disobedience. Insofar as rational self- legislation is never achieved—for the reasons set out in chapters 1 and 2—the character-istics of civil disobedience are characteristics of all democratic action: the gap between legality and legitimacy, the role of maturity and responsibility that cannot be reduced to following a rule, and so forth. Chapter 4 thus provides another argument why we should think of constitutional democ-racy and justice as matters of political negotiation rather than rational reconstruction and rational procedures—as ideals that are to come rather than as ideals that have not yet been realized.

In the fi nal chapter of the book, I return to where I started: argument and discussion. The fi rst four chapters all establish in one way or the other the centrality of political negotiation without rational foundations. As a result, argument and discussion moves to the centre, but these now also concern the very rules of argument and discussion. I discuss the implica-tions of this in relation to philosophy, reason, and democracy. In each case, I look at what it means to include, as an essential part of philosophy, rea-son and democracy, the questions ‘What is philosophy?’, ‘What is reason?’ and ‘What is democracy?’ The result is to destabilize philosophy, reason, and democracy respectively. It becomes impossible to identify a conceptual essence of these, and they are all marked by the structure of ‘to come’. For instance, while we reason in the name of reason, it is a reason that cannot be made present because an intrinsic part of it is to ask ‘What is reason?’ Hence, discussion and arguments must answer not only to reason but also for reason. Similarly, in the cases of philosophy and democracy, one must answer to and for philosophy and democracy. Another implication of the argument of chapter 5 is that the question of responsibility moves to the fore. To say that one must answer not only to but also for reason is not to avoid, but to heighten responsibility, in particular because one must respond to the contingent exclusions that arise from articulating philoso-phy, reason, and democracy in one way rather than another. The structure of to come and the heightening of responsibility both illuminate the cen-trality of contestation and politicization as well as the negotiation involved in creating spaces for contestation and politicization—in short, spaces for ‘discussion’ and ‘argument’, including discussion and argument over what ‘discussion’ and ‘argument’ should mean.

15

1 The aporias of rational consensus

‘What raises us out of nature is the only thing whose nature we can know: language. Through its structure, autonomy and responsibility are posited for us. Our fi rst sentence expresses unequivocally the intention of univer-sal and unconstrained consensus.’ In this way, Habermas announces the theoretical leitmotiv of his future work in the appendix to Knowledge and Human Interest.1 In his subsequent writings, he was to develop an inter-subjectivist approach to ethics and politics: Hence, the focus on language, which is evident in Habermas’s work on a formal pragmatic theory of lan-guage from the early 1970s onwards. As linguistic animals, an interest in reason is always-already posited to us. The ‘universal and unconstrained consensus’ referred to above is analogous to Kant’s ‘fact of reason’:

it is evidently a fact of nature that the human species, confi ned to its sociocultural form of life, can only reproduce itself through the medium of that most unnatural idea, truth, which necessarily begins with the counterfactual assumption that universal agreement is possible. Since empirical speech is only possible by virtue of the fundamental norms of rational speech, the cleavage between a real and an inevitably ideal-ized (if only hypothetically ideal) community of language is built not only into the process of argumentative reasoning but into the very life-praxis of social systems. In this way, perhaps the Kantian notion of the fact of reason can be revitalized.2

The notion of rational consensus—although only one part of Haber-mas’s architectonic—is central not only to Habermas’s theories of com-municative action, discourse ethics, and deliberative democracy, but also to his critics. I shall start by explaining the centrality of the notion of rational consensus to Habermas’s approach to social action, rationality, and norma-tive validity. Next, I consider some of the criticisms of Habermas’s focus on consensus, most notably those of Jean-François Lyotard, Iris Marion Young, and Chantal Mouffe. Taking my lead from Mouffe, I then argue that the idea of rational consensus and Habermas’s approach more broadly,


are marked by an aporia: rational consensus is the condition of possibility of communication, but it would simultaneously spell the end to commu-nication. This has implications for the idea of rational consensus, for the relationship between consensus and dissent, and for how we think about reason. In this chapter I address the fi rst two of these issues; in the last chapter of the book I take up the third issue. Habermas’s theories of com-municative action, discourse ethics, and deliberative democracy rely on a division of work between the discourses of social agents and citizens and the rational reconstructions of philosophers and social scientists. Having shown the aporia of rational consensus related to discourse, in the last sec-tion of the chapter, I turn to consider Habermas’s rational reconstruction of the always-already of communication. He uses the method of rational reconstruction to argue for the unavoidability of rational consensus as a presupposition of com mun ication, but I argue that he is unable to establish the necessity of the idealized presuppositions of communication. Together the arguments of this chapter point towards the need to rethink reason, argumentation, and democratic deliberation.

RATIONAL CONSENSUS

Rational consensus is, according to Habermas, an unavoidable, if implicit, presupposition of communicative action; that is, action oriented towards mutual understanding and, ultimately, towards the telos of a rational con-sensus. Social action can be either strategic or communicative, the latter being action oriented towards mutual understanding. There is no alterna-tive to communicative action in the long run if we want something like a peaceful society. Moreover, strategic action presupposes a lifeworld back-ground that can only be reproduced through action oriented towards mutual understanding.3 In this sense, communicative action enjoys primacy and cannot be chosen; it is posited to us through ‘our fi rst sentence’. Similarly, the presuppositions of communicative action—ideas of rational discourse and rational consensus—are posited for, and by, us. Habermas writes:

The necessity of this ‘must’ has a Wittgensteinian rather than a Kan-tian sense. That is, it does not have the transcendental sense of uni-versal, necessary, and noumenal [intelligiblen] conditions of possible experience, but has the grammatical sense of an ‘inevitability’ stem-ming from the conceptual connections of a system of learned—but for us inescapable [nicht hintergehbar]—rule-governed behavior. After the pragmatic defl ation of the Kantian approach, ‘transcendental analysis’ means the search for presumably universal, but only de facto inescap-able conditions that must be met for certain fundamental practices or achievements. All practices for which we cannot imagine functional

The aporias of rational consensus 17

equivalents in our sociocultural forms of life are ‘fundamental’ in this sense.4

Communicative action and discourse are just some practices or language games among others, yet they are unavoidable, because non-substitutable practices that one cannot avoid in the long run if social interaction is to take place. Habermas talks about ‘the lack of alternatives’ (Alternativlosig-keit) in this respect.5

According to Habermas, we are always-already situated within a mostly unquestioned lifeworld background consensus.6 Communicative action complements the lifeworld in the sense that the lifeworld can only be reproduced through communicative action. The lack of alternatives for the reproduction of the lifeworld refers to learning and socialization more generally and to the peaceful resolution of disagreements more specifi cally. If disagreement arises over an aspect of the lifeworld, it is possible to shift from communicative action to discourse, where the participants argue for and against the validity claims under more or less idealized conditions. A validity claim is always put forward in a particular context, but, at the same time, it points beyond that context to the possibility of universal vindication through discourse ‘in ever wider forums before an ever more competent and larger audience against ever new objections’.7 Any speech act aimed at mutual understanding contains—implicitly or explicitly—the promise of discursive vindication of the validity claims contained in the speech act, which may be vindicated in a rational discourse potentially end-ing in a rational consensus. These validity claims are, among others, claims to truth and claims to normative rightness, both of which are claims to universal validity. In the following I am mainly interested in claims to nor-mative rightness.8 If the discourses meet certain criteria, we have a rational discourse (or argumentation). The criteria are ‘(a) the openness and full inclusion of everybody affected, (b) the symmetrical distribution of com-munication rights, (c) the absence of force in a situation in which only the forceless force of the better argument is decisive, and (d) the sincerity of the utterances of everybody affected.’9 There can be no internal or exter-nal constraints to rational discourse, ‘only the unforced force of the better argument’ counts.10 In terms of politics, these criteria could be expressed as the values of democracy, publicity, inclusion, and egalitarianism, which are all central to Habermas’s theory of deliberative democracy. The outcome of such a rational discourse will be a rational consensus ‘to which all possibly affected persons could assent as participants in rational discourse’.11 These presuppositions of rational discourse and consensus are unavoidable if you engage in argumentation.

Since 1983, Habermas’s argument for the unavoidability of the ideal-ized presuppositions of discourse and argumentation has been to show that you make a performative contradiction whenever you argue against


the necessity of the idealized presuppositions. You cannot argue against the presuppositions without simultaneously presupposing them.12 This is a central part of Habermas’s argument against post-structuralists such as Derrida and Foucault, who, Habermas thinks, are engaged in a total cri-tique of reason.13 Whenever you enter into argumentation or discourse, you have already made these idealized presuppositions. So, if our fi rst utterance contains the implicit promise to discursively vindicate the validity claims of that utterance if necessary, then any interaction presupposes communica-tive action, which in turn assumes the possibility of rational discourse and consensus. Habermas’s use of the performative contradiction argument assumes the universal validity of the rule of (pragmatic) non-contradiction; below, I shall question the force of this argument.

Habermas thus believes he has shown an internal relation between par-ticular and local validity claims, discourse, rational discourse, and rational consensus. The promise of the possibility of a rational consensus inherent in particular practices of argumentation and discourse means that the lat-ter may be said to contain some inherent rationality. With the presupposi-tions of communicative action, the Kantian opposition between real and ideal supposedly moves inside social practice: the ideal is ‘actually effi -cacious’ as a presupposition in real practice, and objectivity is actually effective in subjective points of view.14 Hence, the reference to the Kantian fact of reason in the initial formulation of the communicative turn in the Appendix to Knowledge and Human Interest: an interest in reason need not be posited as a transcendental Idea (in the Kantian sense involving a distinction between the noumenal and the phenomenal), but can instead be conceived as the presupposition always-already at work in the use of what distinguishes us as human beings, namely language.

The ‘fact’ of language and reason not only binds the speakers to each other via their mutual obligations to vindicate their validity claims, it also promises that discourse tends towards a rational consensus. That is, it tends towards a situation where what is subjectively true or right to each partici-pant is simultaneously universally and ‘objectively’ true or right because my/our reasons are identical to the reasons of everybody. The local validity claims contain the promise of the radical overfl owing of their situatedness in a rational, universal consensus. This is what we have to hold onto in our particular localities in order to transcend their particularity, and the ‘what we have to hold onto’ here contains a double sense: it refers, fi rst, to the fact that we have these structures to hold onto and, secondly, to the normative injunction to do so and to work towards rational consensus. It is the idea of a rational consensus that secures the rationality of discourse, and this in turn means that our particular practices of justifi cation are not reducible to subjective whims and relations of power.

In short, rational consensus is constitutive of communicative action, although only in a weak sense of counterfactual ‘idealizing suppositions we cannot avoid making’.15 The idea of rational consensus gives you a way


to distinguish between those norms that are ‘objectively’ right (namely, equally good for all) and those norms that are ‘subjective’ (relative to a particular good), because the latter are relativized vis-à-vis rational con-sensus. In other words, the idea of a rational consensus, conceived as a critical ideal, makes us able to rationally distinguish right from wrong and, in addition, it makes us able to view discourse as a learning process, where we in fact get closer to the truth and to what is normatively right. In con-clusion, then, rational consensus (and rational discourse) functions both as a regulative idea (a fact of reason giving communication a certain telos) and as a critical ideal, even if only conceived as a counterfactual: ‘actu-ally effective in ways that point beyond the limits of actual situations’.16 Importantly, and in opposition to Kant, the idea(l) is a ‘detranscendental-ized’ and ‘immanentized’ one. Habermas writes that ‘the sharp clarity of Kant’s oppositions (constitutive vs. regulative, transcendental vs. empiri-cal, immanent vs. transcendent, etc.) diminishes’, because we are no longer dealing with a monological subject but with the reason built into social practices of communicative action.17 Habermas himself makes clear the dif-ferences between his own attempt to detranscendentalize Kant through the route of Hegel and Marx and those who take the route of Nietzsche and Heidegger. While one must avoid transcendentalism in its Kantian form, one should not succumb to ‘an iconoclastic deconstructionism that throws out the baby with the bathwater’ and where ‘the traces of a transcending reason vanish in the sands of historicism and contextualism’. The problem with ‘deconstructionism’ is, according to Habermas, that it seeks to ‘liqui-date reason through its abstract negation’.18 That is, ‘deconstructionism’ abstracts from the pragmatic aspects of reason and thereby overlooks the quasi-transcendental potential of a communicative reason located in the very practice of communication.

I shall return below to the exact status and development of the notions of rational consensus and rational discourse in Habermas’s work. I shall argue that the idea of rational consensus is aporetic, and that this should lead us to rethink the status of rational consensus and the relationship between consensus and dissent. First, however, and in order to establish the precise stakes of the critique of rational consensus, I wish to look at some of the criticisms of Habermas’s consensual approach and examine some of the potential problems with rational consensus and rational discourse. These are the critiques of Habermas by Jean-François Lyotard, Iris Marion Young, and Chantal Mouffe respectively.

THE VIOLENCE OF CONSENSUS: JEAN-FRANÇOIS LYOTARD

One of the fi ercest critics of Habermas and his emphasis on rational dis-course and consensus is Jean-François Lyotard. They do have things in


common, though, among other things a reference to Ludwig Wittgenstein’s notion of language games.

Habermas uses Wittgenstein’s notion of language games to argue that language should be studied from its pragmatic aspect. However, he differs from Wittgenstein in two important aspects. First, he is interested in what different language games have in common, not in their particularities. For Habermas, then, it is important to be able to distinguish between, on one hand, local or empirical practices and, on the other hand, the quasi-transcendental structures of communication. Second, Habermas wants to uphold the distinction between two functions of language: problem solv-ing and world disclosure. It must not only be possible to distinguish the two, the former must be independent of the latter; that is, we must be able to address questions of truth and normative rightness independently of attending to the opacity of language.19

Lyotard, too, takes inspiration from Wittgenstein’s notion of language games. However, as opposed to Habermas, he emphasizes the multiplicity and incommensurability of language games. Language games are, in short, idiomatic, and there is no neutral meta-language to connect them. The rules of particular language games are not set in stone, however, because they are open to the agonistic contestation of the participants in the language game. This refl ects the general agonistic character of language games: ‘to speak is to fi ght, in the sense of playing, and speech acts fall within the domain of a general agonistics’. Lyotard is quick to add, though, that ‘[t]his does not necessarily mean that one plays in order to win.’20

From this conception of language games, Lyotard develops his critique of Habermas, which consists of two related points.21 First, he argues, Haber-mas relies on the Enlightenment meta-narrative of Emancipation, which serves as a meta-language of legitimation. Like any other meta-language, Habermas’s supposedly universal structures of communication violate and suppress the differences among language games because it is in fact just one language game among others presented as a universal language game. Thus, for Lyotard, if there is a multiplicity of justices, there should be a corresponding justice as multiplicity.

Second, and related to the fi rst point, Lyotard argues that the Haber-masian aim towards consensus imposes consensus where there is none and where there should rather be dissent. In this connection, Lyotard talks about ‘paralogy’, that is, the aim should be to create new openings within exist-ing language games as opposed to closing off language games by imposing consensus as their telos. Summing up, one might say that Lyotard is critical of Habermas’s universalism and focus on consensus because they issue in ‘terror’, by which he means ‘the effi ciency gained by eliminating, or threat-ening to eliminate, a player from the language game one shares with him. He is silenced or consents, not because he has been refuted, but because his ability to participate has been threatened’.22 Rational discourse and ratio-nal consensus also result in exclusion, not just inclusion.


Lyotard makes a similar point with what he calls ‘the differend’. Given the multiplicity of language games and given the necessity of connecting these in one form or another, violence is inevitable (although no particular violence is natural, and any particular violence can be put into question). The differend, then, refers to that which cannot be heard within a given common language, including that which cannot even be registered as a (legitimate) difference: the language silences her because it is unable to reg-ister her difference within it. Applied to Habermas, it means that even if the common language registers disagreements, and even if one does not arrive at a rational consensus, the allegedly universal structures of rational dis-course and consensus exclude certain voices from the very beginning. Thus, for Lyotard, the differend denotes the internal and inescapable limit of any language or consensus; universal inclusion and consensus is impossible.23

Lyotard’s argument suggests that at least some consensus and exclusion are necessary. This much also becomes clear when we consider his justice as multiplicity. If it is understood as a libertarian space where all differences are included on an equal footing, it would effectively be inegalitarian and exclusionary because otherwise disadvantaged groups (Muslims, for exam-ple) will not be able to take advantage of the (formal) equality to the same extent as other groups (middle-class xenophobes, for example). One cannot move automatically from the appreciation of difference to the apprecia-tion of concrete differences. Similarly, one cannot move automatically from the differend to particular exclusions or instances of violence. Therefore, even a justice as multiplicity must exclude certain discourses and practices in order to materialize as a justice of multiplicity. At the very moment of establishing multiplicity, it must also be limited; or, we might say, multi-plicity must defend itself against itself. In short, the condition of possibility of the inclusion of difference is its limitation. The conclusion is not that rational consensus or discourse is the answer, only that it is necessary to theorize the relationship between consensus and difference, and between consensus and the differend. Moreover, even if understood in a libertarian fashion, a justice as multiplicity relies on a certain universality and consen-sus because it implies that it can be equally just to all language games, that is, to the multiplicity of justices. Whatever the merits of Lyotard’s critique of Habermas, he cannot avoid references to something transcending the particularity of the language games and that includes a normative dimen-sion. In addition, it cannot be a criticism of Habermas that his conception of rationality excludes difference, as is often alleged. Of course it does. The question is whether it excludes too much and whether it excludes the wrong kinds of difference.

Habermas, of course, does not simply exclude difference and impose consensus. That would be a mischaracterization of his work. It is the con-cern with false consensus and universals that leads him to posit the possi-bility of a true and rational consensus and universals in the name of which domination and inequality can be detected. In addition, over the years, he


has revised his approach in light of the criticisms that it is too rationalistic, consensus oriented, and excludes difference. One example is his acknowl-edgement that his earlier reference to the public sphere was misguided. Instead, and following the critique of Nancy Fraser among others, he now argues that we should think of public spheres in the plural.24 Nonetheless, his conception of public spheres is limited by his insistence on (a particular notion of) the public use of reason as the guiding principle of all public spheres.

In chapters 2 and 4, I examine other aspects of Habermas’s work, where he arguably allows for difference and dissent. For instance, he makes allow-ances for different interpretations of the principles of constitutional democ-racy, although with the proviso that a rational kernel of those principles can be rationally reconstructed. Likewise, Habermas believes that civil dis-obedience is part and parcel of any mature constitutional democracy, thus allowing dissent over the legitimacy of the law. Yet, civil disobedience must take place within the limits of the public use of reason and the principles of constitutional democracy.

When Habermas makes reference to rationality, discourse, consensus, and universal structures of communication the aim is to show that a rea-soned defence of equality and inclusion is possible. To paraphrase the title of his book The Inclusion of the Other, the aim is to include the other without violating her otherness.25 This is the aim of his formal and proce-duralist conception of law and democracy and of his distinction between political and ethical social integration, for instance. Modern, pluralist soci-eties cannot be integrated at the level of a substantive ethical conception of the good, but must instead be integrated around political values, for instance as expressed in a constitutional patriotism. Hence also his cri-tique of nationalism: a nationalist consensus is imposed upon the plural-ism of contemporary societies in a fashion that violates the otherness of the other. Similarly with his deliberative take on the concept of tolerance, which I examine in chapter 3. As in other places, Habermas’s aim there is an inclusive and egalitarian political order. That his particular defence of inclusion and equality—including the notions of rational discourse and rational consensus—in fact leads to certain unacknowledged exclusions is one of the arguments of this book. For instance, although Habermas allows religious reasons a role in public life, their tolerance is conditional on the acceptance of the priority of political reasons and the acceptance of a hierarchy between political and religious/ethical reasons. It is therefore necessary to acknowledge Habermas’s attempts to include difference and otherness, but also examine the limits to these attempts. Central here is whether it is enough to qualify the notions of discourse and consensus so as to be more inclusive, or whether it is necessary to rethink the relationship between consensus and dissent more fundamentally. Iris Marion Young has attempted the fi rst route.


‘A MORE INCLUSIVE MODEL OF COMMUNICATION’:IRIS MARION YOUNG

Despite Habermas’s attempt to present a more inclusive notion of dis-course, several authors, who are sympathetic to Habermas, have criticized him for having a too restricted notion of discourse, thus effectively exclud-ing certain individuals and practices that are not deemed rational in the Habermasian sense of giving good, deliberative reasons. They argue that a Habermasian style consensus is thereby exclusive and violent.

A good example of this critique of Habermas is Iris Marion Young. She argues that deliberative democracy often rests on unquestioned limits of what it means to deliberate and to be rational. ‘The model of deliberative democracy’, she writes, ‘tends to assume that deliberation is both culturally neutral and universal.’26 However, since reasoning may take many different forms of which deliberation is only one, we need ‘a more inclusive model of communication’.27 As an alternative, she proposes a theory of ‘communica-tive democracy’, which involves the

equal privileging of any forms of communicative interaction where people aim to reach understanding. While argument is a necessary ele-ment in such an effort to discuss with and persuade one another about political issues, argument is not the only mode of political communi-cation, and argument can be expressed in a plurality of ways, inter-spersed with or alongside other communicative forms.28

The widened conception of communication allows Young to include things such as rhetorical language, narratives, and the activist politics of, for instance, civil disobedience.29 She also criticizes the emphasis on consensus as an aim of deliberation because it may lead us to overlook potential dis-agreements in the search of consensus.30

As an alternative, Young proposes that communicative democracy only rests on ‘a norm of reasonableness, which is a general norm of communi-cative action that aims to reach understanding’.31 In addition, democratic struggles take place within ‘agreed-upon and publicly acknowledged pro-cedures’.32 Importantly, for Young, the extension of inclusion to a wider range of groups and practices cannot simply be the extension of existing procedures and institutions. It must be possible to put into question the existing ‘style and terms of public debate’.33 This would go some way to answer Lyotard’s point that a particular language game such as communi-cative reason renders some voices invisible. It is not enough to ask for more communication, one must also ask for different ‘styles and terms’ of com-munication. In this way, to paraphrase Young, social difference becomes a resource, and ‘objectivity is an achievement of democratic communication that includes all differentiated social positions’.34


While Young is more pessimistic than Habermas of the possibility of real-izing these ideals in contemporary Western democracies, she thus retains the critical ideal of an ever widening conversation among participants in dialogue who are aiming at mutual understanding and, hence, consensus. And she retains the ideal of the possible inclusion of all voices, even if only as a critical ideal. Her argument is not against the ideals as such, but that the ideals do not fi t a complex reality of inequality. If properly understood, consensus and discourse could be rational in the sense of giving voice to all those possibly affected and including difference. Ultimately, consensus and dissent can be reconciled, although it happens by subsuming dissent to consensus as both the foundation (expressed in a set of fair procedures) and the aim of communication and democracy. It is thus clear that Young stays within the Habermasian imaginary. To her, it is possible—at least in theory—to eliminate the differend, to use Lyotard’s phrase, and the prob-lems with rational consensus and discourse only necessitate their relative relaxation. I believe we must move ‘beyond’ the critical theory or Haber-masian paradigm, and for this reason I now turn to look at the work of Chantal Mouffe. What we fi nd in Mouffe is a different way to think about consensus and the idealizations of communication.

‘BACK TO THE ROUGH GROUND’: CHANTAL MOUFFE

Chantal Mouffe, another of Habermas’s critics, argues that Habermas’s notions of consensus and rationality exclude difference and stifl e democ-racy. Her argument is worth considering because it gives me the opportu-nity to specify my disagreements with Habermas. Most importantly, her argument leads to the insight that rational consensus is aporetic, and that it is here that the critique of Habermas must aim, a line of argument that I will be pursuing in the rest of the chapter and in the rest of the book.

Mouffe argues that there are inherent, and not only empirical limits to the notions of rational discourse and consensus. She writes:

Habermasians do not deny that there will, of course, be obstacles to the realization of the ideal discourse, but these obstacles are conceived of as empirical. They are due to the fact that it is unlikely, given the practical and empirical limitations of social life, that we will ever be completely able to leave all our particular interests aside in order to coincide with our universal rational self. This is why the ideal speech situation is presented as a regulative idea.35

I shall return to Mouffe’s argument about the inherent, as opposed to empirical, limits to rational consensus and rational discourse shortly. First,


however, I wish to clarify some points regarding Habermas’s position in order that we may not fall back into the ‘empirical’ critique of Habermas that Mouffe rightly fi nds inadequate.

Mouffe refers to rational discourse as a matter of leaving ‘all our par-ticular interests aside in order to coincide with our universal rational self’. This is not exactly what Habermas has in mind. First, for Habermas, uni-versality and rationality are not situated in the self, that is, in the subject, but are, rather, understood intersubjectively. The rationality and universal-ity of the claims put forward by a particular subject is tested through public discourse. One may, of course, argue, as do Young and Mouffe, that the intersubjective model needs an account of the subject, or that Habermas presupposes a particular notion of the subject (as a rational, communicat-ing being) thereby excluding certain individuals and groups, but that is a different argument (although one I agree with).

Second, when entering (rational) discourse, one does not leave one’s particular interests aside. You enter as a whole person, putting forward whatever claims and arguments you may wish. If you had to leave your particular traits aside before entering the discourse, you would face the problem of how to move back to and reconnecting with your lifeworld background; this is Habermas’s critique of Rawls’s notion of the veiled subjects in the ‘original position.36 Thus, what lends rationality and uni-versality to discourse is not that no particularity is allowed to enter into it, but that all particularities are included through fair procedures. (Whether that inclusion actually treats all particularities equally is a different mat-ter, which I return to in chapter 3.) Habermas’s notion of rationality is one that is ‘situated’ in the lifeworld of language users. It is in this way that Habermas seeks to take into account Hegel’s critique of the Kantian self as abstract and atomistic. For Habermas, the discourse has to be both inter-subjective and real; that is, it cannot be carried out as a thought experiment à la Kant’s lonely but clever subject or as a discussion among Rawls’s repre-sentatives in the original position, who are ignorant of their own particular interests. Any critique of Habermas must take this into consideration. Fur-thermore, the critique must go beyond merely resituating Habermas within a messy empirical world—even if Habermas may at times abstract from the messiness of the world.

Third, and linked to the previous point, for Habermas, no issues have to remain outside public debate. It is thus not entirely fair when Mouffe writes that

Habermas now accepts that there are issues that have to remain out-side the practices of rational public debate, like existential issues which concern not questions of ‘justice’ but the ‘good life’—this is for him the domain of ethics—or confl icts between interest groups about distribu-tive problems that can only be resolved by means of compromises.37


For Habermas, any practical issue can be raised, and it can be done so from a moral, an ethical or a pragmatic perspective. What he does claim, how-ever, is that you can only talk of a rational consensus (and of a rational dis-course or publicity in the strict sense) in relation to the moral point of view. This is so because the moral point of view is purely intersubjective and not relative to a particular subject, whereas the ethical and pragmatic points of view are always tied to particular goals of particular subjects. Thus, when Mouffe writes that, for Habermas, ‘the very condition for the creation of consensus is the elimination of pluralism from the public sphere’, this can only refer to the fact that, for Habermas, the plurality of points of view are reconciled in the public use of reason.38 What must be criticized in Haber-mas, however, is the reliance on rational consensus as the constitutive telos of communication.

It is in this regard that Mouffe’s work points the way. Her argument proceeds along two related lines. She writes that

the obstacles to the realization of the ideal speech situation—and to the consensus without exclusion that it would bring about—are inscribed in the democratic logic itself. Indeed, the free and unconstrained pub-lic deliberation of all on matters of common concern goes against the democratic requisite of drawing a frontier between ‘us’ and ‘them’. We could say … that the very conditions of possibility of the exercise of democracy constitute simultaneously the conditions of impossibility of democratic legitimacy as envisaged by deliberative democracy.39

Here Mouffe relies on Carl Schmitt’s argument that, since democracy involves the identity of rulers and ruled in the demos, democracy also requires the establishment of the limits of the demos as well as the creation of an antagonistic frontier between ‘us’ (the demos) and ‘them’. Hence, according to Mouffe, democracy—including a deliberative democracy based on the notions of rational discourse and rational consensus—cannot be universal but involves the exclusion of those who are not part of ‘us’. Seen in this light, Habermas attempts the impossible, namely to create a universal ‘we’ without a corresponding (excluded) ‘them’. Mouffe’s argu-ment here is analogous to that of Lyotard. For both, to have an equal voice, one’s voice must be expressed within a particular language; before you can have a voice, you must belong to a demos. In short, there is no democ-racy—and no discourse or consensus—without exclusion, and this needs to be taken into consideration. Yet, as argued above, and as Mouffe argues contra Schmitt, this does not mean that all we have are isolated demoi.40

Mouffe makes the further argument that ‘the free and unconstrained public deliberation of all on matters of common concern is a conceptual [as opposed to empirical] impossibility, since the particular forms of life which are presented as its “impediments” are its very condition of possibility. With-out them no communication, no deliberation, would ever take place’.41


For Mouffe, a transparent language qua rational discourse would render discourse meaningless. It would not only mean that there is no need for world disclosure; it would quickly mean the end to discourse because the end of rational discourse (namely, rational consensus) would be the end to discourse, rational or not. (And with the term ‘conceptual’, Mouffe means ‘in principle’ or ‘necessarily’; that is, it does not aim at the semantic level alone, but can also apply to the pragmatic level, to use Habermas’s terms.) Here she quotes Wittgenstein to the effect that ‘[w]e have got on to the slip-pery ice where there is no friction and so in a certain sense the conditions are ideal, but also, just because of that, we are unable to walk: so we need friction. Back to the rough ground’.42 Disagreement and difference are the conditions of possibility of rational discourse; hence why a rational consen-sus would be the end to discourse.43

In the following section, I will take up this thread from Mouffe and argue that Habermas’s theory of discourse and consensus is marked by an irresolvable aporia. This aporia, I will argue, is an inherent limit to rational consensus and rational discourse, and one of its implications is that exclu-sion is inherent to consensus and discourse. These things must be taken into consideration when theorizing consensus, discourse, dissent, and more broadly, reason. Furthermore, it means that it is not suffi cient to criticize Habermas for overlooking the messy reality of the world, as does Young, for instance. Yet, my argument does not imply the complete rejection of any consensus or of any appeal to justice, only that these stand in need of a fundamental rethinking. In order to pursue this argument, it is necessary to return to Habermas’s formulation of the idea of rational consensus.

THE APORIA OF RATIONAL CONSENSUS

The status of the idealizations of rational discourse, including the notion of rational consensus, has developed throughout the course of Habermas’s work. When fi rst proposing his programme of a formal pragmatics of lan-guage, Habermas at times held that they were to some extent realizable if only the circumstances were right. At other times, and in response to critics who pointed to the utopian character of this proposition, the ideal-izations of rational discourse were, if not in fact, then at least in principle realizable,44 or they could only be ‘approximated’.45 Still, their realization was prevented by empirical constraints. On this view, the participants in discourse have ‘to suppose that a rationally motivated agreement [that is, a rational consensus] could in principle be achieved, whereby the phrase “in principle” expresses the idealizing proviso: if only the argumentation could be conducted openly enough and continued long enough’.46

Habermas has also referred to the idealizations, including the idea of rational consensus, as ‘actually working fi ctions’, which are presupposed, but which are not empirically possible: ‘at once claimed and denied’.47 They


are counterfactual, but we necessarily presuppose them and act as if they were realizable.48 On this line of argument, which can be found in Haber-mas’s earlier as well as in his later work, the decisive point is not whether rational discourse and rational consensus are something realizable. Rather, the effi cacy of the idealizations arises from their necessary assumption in discourse and communicative action. The very fact of assuming the ideal-izations constitutes and guides discourse and communicative action and provides an immanent, critical ideal.49

Lately, Habermas has gone one step further and written that the notion of rational consensus is not just an empirical, but a conceptual impossibil-ity. He puts it in the following way: ‘This entropic state of a defi nitive con-sensus, which would make all further communication superfl uous, cannot be represented as a meaningful goal because it would engender paradoxes (an ultimate language, a fi nal interpretation, a nonrevisable knowledge, etc.).’50 The end of rational discourse—namely, rational consensus—would also be the end to discourse, rational or not. Habermas adds in another context, quoting Albrecht Wellmer: ‘Even if the ideal reference points are understood as aims that are not attainable in principle, or attainable only approximately, it remains “paradoxical that we would be obliged to strive for the realization of an ideal whose realization would be the end of human history.”’51 The same point could be made by pointing to Habermas’s emphasis on the fallible character of consensus, which—if it reached all the way down, so to speak—seems to contradict the idea of a fi nal, rational consensus.52 I shall return to this below.

Thus, Habermas now recognizes the self-defeating character of the idea of a fi nal and rational consensus, even as a conceptual possibility. The idea of rational consensus would contradict central presuppositions of ratio-nal discourse, namely the presuppositions of openness to contestation of any norm or validity claim—the presupposition that the participants are always free to say ‘no’ to any validity claim that someone puts forward. In addition, the idea of a fi nal and perfect rational consensus makes impos-sible precisely that which it was meant to make possible, namely commu-nication. The assumption of the possibility of a rational consensus makes communication possible; but, in the state of a rational consensus, com-munication is both superfl uous and impossible. There is neither need, nor room for communication in this state. Rational consensus is, thus, the end to or the limit of communication; it is both the condition of possibility and the limit of the rationality of discourse.

Habermas and Wellmer refer to this situation as ‘paradoxical’. In Der-ridean terminology, the situation would be referred to as aporetic in order to refl ect its irresolvable character. As Derrida notes, etymologically, aporia denotes a ‘non-passage’.53 In the present context, the aporia or non-passage refers to the fact that what is the condition of possibility of communication (namely, rational consensus) is simultaneously its condition of impossibil-ity. That is, communication implies the possibility of rational consensus,


yet the latter simultaneously negates the former. The aporia means that the movement towards rational consensus must be interrupted; or, rather, it is a self-interrupting movement of communication. Rational consensus, then, cannot serve as the singular telos of communication or argumentation, and so consensus cannot be prioritized over dissent as more foundational or as the natural future of dissent. In addition, insofar as we are dealing with two simultaneous imperatives (something like rational consensus and dissent), the two cannot be reconciled. For instance, the non-passage should not be understood as a mere detour via dissent to a consensus. Likewise, although (rational) consensus may be an essential part of communicative action and discourse, so is dissent or difference, and one cannot be privileged over the other, for instance in a formal notion of rational consensus that reconciles all differences. Should this happen, dissent and difference would become mere obstacles to be overcome on the road to consensus. This is rightly pointed out by Robert Martin, who further argues that dissent is not just needed as an input to discourse and democracy, but also as a ‘check’ on any de facto consensus.54 Notice that one does not get off the hook by argu-ing that we can prioritize a limited notion of consensus. One way to do so would be to establish a minimalist or meta-level consensus, as proposed by John Dryzek and Simon Niemeyer when they argue that it is possible to reconcile dissent and consensus by distinguishing between a ‘simple level’ of dissent and a ‘meta-consensus’.55 The problem with this argument is that it does not consider what to do with dissent over the minimalist content of the consensus or over the distinction itself. Another way, which would not insulate consensus from dissent, would be a provisional consensus that is always open to contestation, but this does not make us able to prioritize consensus over dissent (let alone insulate consensus from dissent).

At the same time, we should avoid the idea that it is possible to recon-cile consensus and dissent by reference to their mutual implication. This is the proposal of Patchen Markell and John Brady. Markell writes that Habermas requires dissent and disagreement as evidence of fallibilism and refl exivity.56 Similarly, Brady argues that Habermas requires dissent, and that this leads to a positive evaluation of dissent and to the breakdown of the opposition between consensus and dissent.57 But, for both Markell and Brady, it remains possible to reconcile consensus and dissent; they do not become two contradictory goals. What is overlooked by Markell and Brady is that consensus and dissent not only seem to imply one another, but also mutually contradict one another — hence the aporia. In a fi ctional dialogue with Habermas, Geoffrey Bennington has made a point similar to the one made here, and his forceful criticism of Habermas is worth quoting at length here:

‘The end of communication as you formulate it would be the end of communication itself. So if we want to communicate, we also have to want not quite to understand each other…’ […] ‘This doesn’t mean that


simply communication is at its best the further you are from realising its end, just that it happens each time singularly in the uneasy negotia-tion of that tense singularity, each time differently suspended between understanding and bewilderment, agreement and refusal, consensus and coercion—and that this each-time singularity cannot be teleologi-cally organized by an Idea of rational consensus, however important that Idea might still be, singularly, here and there, in negotiating and resisting coercion and injustice…’.58

Not only is the regulative idea of a rational consensus impossible, but we also cannot stick to it alone (possible or not), because there is the compet-ing ‘idea’ of dissent. The negotiation of this tension between consensus and dissent cannot be rationalized because of its aporetic character, but is, instead, a matter of political articulation.

Consensus is not natural, and since no particular consensus is natural, it is not (only) a matter of consensus or dissent, but also of which consensus and which dissent: Hence why Bennington talks about ‘negotiating’ the aporia. If consensus is not the unavoidable goal of communication, then any consensus will be contingent and will exclude because it will impose consensus where there is none. That does not mean that we cannot ask questions of a particular consensus. Rather than rendering every exclusion or violence (and every consensus or difference) the same, it becomes all the more important which exclusion, which consensus, and so on, dominates. Foucault says in an interview, when asked to choose between alternatives: ‘My point is not that everything is bad, but that everything is dangerous, which is not exactly the same as bad. If everything is dangerous, then we always have something to do.… I think that the ethico-political choice we have to make every day is to determine which is the main danger’.59

Every constellation of consensus and dissent is dangerous—exclusive and violent—but some constellations may be better than others. There can be no external yardstick here, including the yardstick of a rational consensus immanent to the very use of communication, according to Habermas. All we have are discussions and struggles in which one may critically articulate a heritage and existing values and vocabularies, but where there is no guar-antee of a positive end-result, let alone a (rational) consensus, and where there is no guarantee that the process will be fair according to some uni-versal criteria. What we can do, however, is to criticize attempts (whether intentional or not) to conceal the partial and violent character of any con-sensus, that is, to conceal the fact that any consensus is the outcome of a political articulation and struggle. Thus, Bennington says, in his fi ctional dialogue with Habermas: ‘…Your appeals to reason and consensus in fact function coercively by trying to deny the non-rational “origin” of rational-ity or the non-consensual ground of consensus…’.60

Agonistic approaches—inspired by Derrida like that of Mouffe, or inspired by Foucault like that of William Connolly—provide a way to theo-


rize these struggles. They emphasize contestability, that is, the possibility and ability to say ‘no’. Such an approach does not reject consensus. As Wil-liam Connolly writes, it is ‘impossible to participate in discourse without projecting the counterfactual possibility of consensus; but…each attempt to interpret the actual import of that counterfactuality in any concrete set-ting is also problematical and contestable’.61 Connolly links this to contest-ability: ‘if a pluralizing ethos presupposes a “consensus”, it is mobilized above all around reciprocal appreciation of the contestability of contend-ing presumptions about the fundamental character of being. It is an ironic consensus’.62 The irony that Connolly refers to here is one that is ‘internal’ to discourse or, more broadly, reason. In other words, the dissent that ago-nistic democrats emphasize is not simply a ‘no’ to reason, but internal to reason, thus dividing it from the inside.

This is a decisive difference between agonistic democrats and Derrida, on one side, and Habermas and other discourse theorists and deliberative democrats, on the other side. For Habermas, the ‘no’ to a rational consensus or the refusal to engage in rational discourse are not possibilities internal to reason, but external to reason and therefore irrational. However, Haber-mas cannot establish the unity of reason by excluding as irrational those who contradict reason understood as rational discourse aimed at rational consensus. It is not possible to say that those who reject rational consen-sus and the other supposedly universal assumptions of communication are irrational, because reason can no longer be identifi ed with the possibility of rational consensus, and because reason has thereby become internally divided. Habermas’s performative contradiction argument does not have the desired effect of ridding reason of contradictions; on the contrary, the notion of rational consensus is itself performatively contradictory (in the form of the aporia identifi ed above). Furthermore, when reasoning with reason, one cannot do so simply from ‘within’ reason; one would have to presuppose what one is simultaneously putting into question. Indeed, it is reason’s internal division that makes this questioning of reason possible, because if the content and procedures of reason were immediately clear to us and settled, there would be nothing left to reason with. Reason is not one, but internally divided. We are not dealing here with a limit of reason where reason can be opposed to an outside (the irrational, and so on), and the reasoning with reason itself requires an affi rmation of reason and of a tradition of reason, which are thus not foreign to this reasoning with rea-son—an argument I develop in chapter 5. In conclusion, then, the internal division that follows from the aporia of Habermas’s argument is not just a limitation on reason, but also the condition of possibility for reasoning about reason—a reasoning that is not simply anti-reason or unreason.63

Despite Habermas’s acknowledgement of the problems with the notion of rational consensus, he still claims an essential connection between prac-tices of justifi cation and the idea of rational consensus. His position on the idea of a rational consensus has moved from it being empirically realizable,


to being not empirically but only in principle realizable, and fi nally to being not even in principle realizable. The fi rst of these moves was unproblematic for Habermas. As fi ctions, the idealizations of discourse and the idea of rational consensus can still have a guiding and critical effect in real dis-course. However, rational consensus as an ‘actually working fi ction’ is more diffi cult to dismiss for Habermas because he has constructed his theoretical framework in such a way that he needs an internal connection between practices of justifi cation and consensus in order that the former have moti-vational force. Particular practices of justifi cation get their force from the transcending power of the telos of rational consensus, a telos posited with and from within the practices themselves. If we do not proceed on the assumption that justifi catory discourses may solve our problems of norma-tive rightness, according to Habermas, those discourses lose their sense. He opens a constitutive gap between de facto consensus and rational consensus when accepting that the latter is a conceptual impossibility. However, this does not make him give up on the idea from his initial proclamation in the Postscript to Knowledge and Human Interests that communication ‘neces-sarily begins with the counterfactual assumption that universal agreement is possible’. Habermas retains the idea of rational consensus as something unavoidable and, in that sense, constitutive.

The problem with Habermas is not so much that he does not accept that the idea of rational consensus is unrealizable, even in principle. He does so and accepts that the end of communication would also be the end to com-munication. Yet, he is able to retain the idea of rational consensus precisely by placing it out of reach as something impossible. As an ‘as if’, rational consensus is uncontaminated by the messy world in which this ‘as if’ is supposed to have an effect, and its impossibility does not affect the way Habermas thinks about the world. In this way, the ‘as if’, the hypothetical and counterfactual character of the idea of rational consensus, protects it from the facticity of the world and distracts our attention from the latter.64

Although the counterfactual ‘as if’ status of the presuppositions is the basis for using the idea of rational consensus as a critical ideal, as Eric Clarke has argued in the context of Habermas’s conception of the public sphere, it may also have conservative effects. Habermas rightly believes that, if a rational consensus were possible, and if communication qua transparent discourse were possible, it would be the end to communication. It is neces-sary to go beyond this, however. The conclusion I wish to draw from this is that the impossibility of rational consensus should be taken into account as an essential feature of any attempt to think through the issues surround-ing consensus, dissent, and so on. In other words, the point is that the condition of possibility of communication is its simultaneous corruption or, with a term from Derrida, its essential ‘imperfectibility’. It is because rational consensus is impossible, and because communication must neces-sarily falter, that communication is possible.65 In this light, I next consider


various attempts by Habermas and others to move the emphasis from aim and consensus to process and dissent.

FROM AIM TO PROCESS: ‘DAS NEIN-SAGEN-KÖNNEN’

With Habermas’s growing awareness of the problems with the idea of rational consensus, he has shifted focus from the aim to the process of dis-course, even if the idea of rational consensus neither disappears nor loses its central place. Whereas he used to refer to his theory as a consensus theory of truth and normative rightness, he now refers to it as a discourse theory. The focus has shifted from consensus as a telos of discourse to the process of discourses. Habermas writes: ‘As a regulative idea, the critical point of the orientation toward truth [and normative rightness] becomes clear only when the formal or processual properties of argumentation, and not its aims, are idealized.’66 In line with his acceptance of the paradoxical character of a rational consensus, Habermas now distinguishes the fi nal state of rational consensus—the simultaneous ‘yes’ of everybody possibly affected under conditions of full inclusion and symmetry—from the pro-cess of justifi cation of validity claims, which is always local in time and space. He writes:

I share … with Wittgenstein and pragmatism, a holistic model of justi-fi cation that denies the availability of ‘fi nal’ or knock-down arguments. The holistic model can, however, escape relativist consequences only in view of the selectivity of a process of argumentation, the procedural features of which ground the presumption of the rational acceptability of outcomes.67

In short, increasingly, the process of discourse (procedures of full and equal inclusion, and so on), is the indicator of rationality, rather than the end-goal of rational consensus, whether achieved or not.68

The change in emphasis raises the question whether Habermas can, in this way, save his theory of language, rationality, and normative validity from the aporias associated with the notion of rational consensus. I would like to argue that he cannot do so, and I would like to do this by discuss-ing a term Habermas uses to sum up the processual and open character of discourses: ‘das Nein-sagen-Können’, that is, the negative possibility and positive ability to say ‘no’.69 The idealizations of discourse are meant to express the possibility of the discourse participants to freely say ‘yes’ or ‘no’ to validity claims. In other words, they are meant to express the exposure of any validity claim to the potential ‘no’ of any discourse participant: ‘The process of argumentation as such must remain open to any relevant objec-tions and any improvements of our epistemic condition.’70 This is what is expressed in Habermas’s use of the term ‘das Nein-sagen-Können’.


Das Nein-sagen-Können excludes the possibility of a fi nal consensus in the sense that any consensus must remain open to the possibility of a ‘no’. In other words, if there is a consensus, it will not be the result of a fi nal, unconditional ‘yes’, but because as a matter of fact no one raises any fur-ther objections. The rational consensus arrived at would, then, always be open to further potential objections, and, hence, not a rational consensus in the sense of a fi nal ‘yes’. The consensus would be conditional. There would be an irreducible gap between its conditionality (that is, its facticity or fi niteness) and an unconditional, universal consensus. Rational consen-sus (in a strict sense) would be heterogeneous to any consensus or discourse in the present. There would be an irreducible gap between the present (con-sensus or discourse) and the future rational consensus, because—following Habermas’s recent view that a rational consensus is a conceptual impos-sibility—the latter cannot be realized in any present. In Wellmer’s words, every validity claim—every ‘yes’ or ‘no’—would contain ‘a necessary sur-plus’ over the here and now, the speaking subject and the present.71

Following this line of argument, the process of justifi cation and creation of consensus is an open question. Practices of justifi cation may be oriented toward the future, but rational consensus cannot be their (only) telos. Ratio-nal consensus (in the strict sense) would dissolve the futurity, because to a rational consensus there would be no future. Rational consensus bestows rationality on particular practices of justifi cation, but, as Habermas him-self realizes, thus conceived, rational consensus is the end of, and to, his-tory. And is Habermas not precisely criticizing the points where history as a futural excess over any present of the social is reduced to presence—in the Hegelian Absolute Spirit and State, in the communitarian Good, in knowl-edge and language as representation of a pre-discursive reality, in short, in what Derrida would call the ‘metaphysics of presence’—thus reducing future possibility to an absolute or particular presence?

I am not arguing that Habermas escapes what Derrida, in different contexts, has called the ‘metaphysics of presence’. The ideas of rational consensus and rational discourse belong to the metaphysics of presence, because they imply the possibility of a transparent medium and a fi nal ‘yes’ from where all heteronomy has been excised. Rather, my argument is that Habermas’s project is marked by an aporia, something he himself to some extent acknowledges, although he does not consider its full consequences. He himself writes, for instance, that ‘[t]ime…is a constraint of an ontologi-cal kind.’72 That is, rational consensus as a future possibility cannot be a continuation of the present. Yet, he does not stop to reconsider the ideas of rational consensus and rational discourse and their role in his theoreti-cal framework, which would, admittedly, force him to rethink the whole framework. One might suggest, for instance, that we think of rational con-sensus in terms of Derrida’s ‘to come’: a future that is not a continuation of the present, but heterogeneous to the present. A future state that is impos-


sible, both empirically and conceptually, and therefore remains ‘to come’, always postponed (and not just out of reach, but possible as impossible).73

Returning to the idea of das Nein-sagen-Können, it may be pointed out that even if das Nein-sagen-Können does not rest on an idea of a fi nal consensus, it does at least rest on a prior consensus on the idealizations of discourse. On the one hand, das Nein-sagen-Können contains a double reference to a future exceeding any presence and to a presence. It contains a reference to a possible future ‘no’ that will, by defi nition, exceed the pres-ent consensus and discourse. On the other hand, das Nein-sagen-Können refers to the actual and positive ability to say ‘no’, an ability that must be positively present in order to have any effect. It is in this sense, that das Nein-sagen-Können may be said to rest on a prior ‘yes’ or consensus, for instance, about what it means to be a human being capable of communica-tion. Without the possibility and ability (Können) to say ‘no’ as a positive internal moment of the discourse, you would not have the ‘no’ (Nein) as a not yet realized possibility, as something radically exceeding the discourse. At the same time, the ‘no’ risks disappearing behind the Können insofar as the latter is a positive presence to which one cannot say ‘no’. In the Neinsagen-Können we then have an aporia: on the one hand, a tension between the ‘no’ and the ability to say ‘no’; on the other hand, a mutual interdependence between the two—hence the aporia, literally a non-pas-sage. One is presented with a choice, yet we are not dealing with two dis-tinct alternatives between which one can chose one at the simple exclusion of the other. The aporia is similar to the one found in relation to rational consensus and dissent: both tension and mutual implication.

Hence, there is no way around a certain consensus, even if only a prior consensus that must be at least provisionally assumed. For instance, the positive condition of possibility of the ‘no’, namely the ability to say ‘no’, is simultaneously the limit of the ‘no’, because there cannot be a ‘no’ to this ability. The possibility of dissent already involves a prior consensus—a con-sensus necessarily excluding certain possibilities. Das Nein-sagen- Können, for instance, rests on the idea that you have to respond to something in a certain way. The shrug and the blank look have already been excluded. And, not only a particular idiom is presupposed but also a conception of the—accountable, rational, sincere, and so on—subject, however intersub-jective Habermas’s account of language and social action may be.74 The point links back to a point made above by Lyotard, Young, and Mouffe in relation to exclusion and marginalization: there is no universal or transpar-ent language, and one must fi rst learn the relevant idiom before one can be heard. The ‘no’ is conditional on a prior ‘yes’: That ‘yes’ should be free and informed, but it must be registered in a language that cannot be freely chosen. Nonetheless, if we extend the argument above, the ‘yes’ may point beyond the particular consensus insofar as the ‘yes’ implies the possibility of a ‘no’, which cannot be reduced to the former. In short, although inclu-sion and voice is always conditional, the possibility of dissent cannot be


ruled out. To say that exclusion and closure is constitutive is not to say that there is no openness, inclusion, equality, and so forth.

To sum up, the ‘yes’ of Habermasian discourse and of the rational con-sensus is made possible by another ‘yes’—necessarily prior to the fi rst—to the possibility of saying ‘yes’. The possibility of the ‘yes’ depends on the ‘yes’ to its possibility. Habermas believes that ‘our fi rst sentence expresses unequivocally’ this ‘yes’ to the ‘yes’, although I have put this argument into question above. Rather than being simply posited to us as an always-already, this ‘yes’ seems to be one that must at least be affi rmed and repeated. One must say ‘yes’ to the ‘yes’. One must say ‘yes’ to the language in which one is speaking or trying to speak, and which provides the possibility to say ‘yes’ and ‘no’. The ‘yes’ to the particular idiom secures the intelligibility of one’s speech acts, but this opening up of the language is simultaneously a closure because it limits the horizon of intelligibility. After all, Habermas himself accepts that we are, to some extent, thrown into our lifeworlds and ethico-political traditions, which, although they can be questioned in parts, continue to shape our horizon.

In addition, there is the ‘yes’ that responds to a validity claim. Yet, it must also be possible to respond in another way, for instance to say ‘no’, and this must be an essential possibility. If this possibility did not exist, the ‘yes’ would simply repeat what it affi rms and would have no performative force, which is where Habermas locates the binding force of the discursive yes-no positioning. For all these reasons, the ‘yes’—including the fi nal ‘yes’ of a rational consensus—is an open question: any consensus is open to fur-ther yes–no positioning and relies on a prior consensus that cannot be fully discursifi ed and rationalized.75

Habermas relativizes the status of validity claims by conceiving them as always fallible, that is, always revisable in light of future yes–no position-ing. He writes:

With this kind of fallibilism, we, philosophers and nonphilosophers alike, do not by any means eschew truth claims [or claims to normative rightness]. Such claims cannot be raised in the performative attitude of the fi rst person other than as transcending space and time—precisely as claims. But we are also aware that there is no zero-context for truth claims. They are raised here and now and are open to criticism. Hence we reckon upon the trivial possibility that they will be revised tomor-row or someplace else.76

The possibility of a ‘no’ to a validity claim is always there, and so is the possibility of a ‘no’ to a consensus. However, as Rodolphe Gasché has rightly pointed out, this is no ‘trivial’ possibility, as Habermas would like, but an essential possibility, and, as I have argued above, it must be taken into consideration when theorizing discourse and consensus.77


This is not only the case in relation to Habermas’s theories of commu-nicative action, discourse ethics, and deliberative democracy, but also in relation to his programme of rational reconstruction of the universal and unavoidable structures of communication, discourse, and democracy. Here too Habermas introduces fallibilism, and, as I shall argue in the following section, here too he does not consider the full implications of the essential openness of the process of reconstruction.

RATIONAL (RE)CONSTRUCTIONS

Having shown the aporetic nature of the idea of rational consensus and some of the implications for how to theorize the relationship between con-sensus and dissent, disagreement or difference, it is now time to complete the picture by considering the method through which Habermas claims to have identifi ed the rational consensus as an unavoidable presupposition of discourse: rational reconstruction. I have already touched upon the argu-ments of performative contradiction and lack of alternatives, which both belong to the programme of rational reconstruction. Habermas uses the reconstructive method both in his discourse ethics and in his theory of deliberative democracy and law. Rational reconstructions aim to recon-struct the underlying and implicit structures of social interaction.78 In his theory of discourse ethics, Habermas uses a ‘formal pragmatic analysis, which focuses on the general and necessary conditions for the validity of symbolic expressions and achievements’. That is, he focuses on how rational-ity and validity can be generated intersubjectively under post-metaphysical and post-traditional conditions.79 In the theory of deliberative democracy, he seeks to rationally reconstruct the implicit principles of constitutional democracy, which I turn to look at in chapter 2. The reconstructed struc-tures, or presuppositions, are constitutive in the sense described above of lacking in alternatives.

In rational reconstructions, philosophy and ‘[e]mpirical theories with strong universalistic claims’ converge. Philosophy has the role of a ‘stand-in (Platzhalter)’80 for the reconstructive sciences, of which Lawrence Kohl-berg’s theory of moral development and Habermas’s formal pragmatics of communication are two examples.81 Philosophy and reconstructive empiri-cal sciences are supposed to work in tandem, one checking the always fal-lible results of the other, and thus avoiding the ‘violence and distortion’ involved in wrongly forcing an allegedly transcendental structure upon the singular lives of empirical persons.82 A reconstructive philosophy and sci-ence is supposed to avoid, on the one hand, an empiricism that provides no critical distance from the present and, on the other hand, a stronger tran-scendentalism. In his own words, Habermas tries ‘to steer clear of the Scylla of a neutralizing empiricism devoid of transcendence and the Charybdis of an overly ambitious idealism eulogizing transcendence’.83 This is why


Habermas talks about the quasi-transcendental status of the reconstructed universals. In the words of Thomas McCarthy, with the programme of rational reconstruction, Habermas aims to transform transcendental phi-losophy by making it ‘dependent on a posteriori knowledge’ so that the reconstructed a priori is a relativized one.84

Habermas embarked on the method of rational reconstruction from the early 1970s onwards as a response to criticisms of his earlier programme of knowledge-constitutive or human interests from Knowledge and Human Interest. However, the problems with the earlier programme also mark the later approach. In Knowledge and Human Interest, Habermas referred to a set of quasi-transcendental human interests as the presuppositions of pos-sible objective knowledge. He did this from the perspective of the history of the reproduction of the human species understood as a learning process— hence human interests. The cognitive human interests are both empirical and transcendental, thus continuing the critical theory tradition of locating regulative and critical ideals in existing practices. Through awareness of the universal interests, one acquires freedom from ‘the pressure and seduc-tion of particular interests’.85

However, the programme of human interests remained within the phi-losophy of consciousness and the connected problems of self-refl ection.86

Since the starting point was a philosophy of the subject, the emancipation of the subject was supposed to result from a process of self-refl ection. This raises the question of how an unemancipated subject (here, the human spe-cies) can take on the task of emancipating itself. Either the subject does not already have an interest in its own emancipation and is thus unable to carry out the process of self-refl ection on its own accord (the solution to this may be philosophical paternalism and political avant-gardism); or the subject does have an interest in its own emancipation, but this interest risks teleo-logically foreshadowing the process of the subject’s self- refl ection and sub-sequent emancipation. (The history of Marxism provides the best example of this conundrum.) The empirical self-refl ection can only be carried out by the subjects themselves, and so the problem is to show the possibility that subjects may transcend their own empirical reality without positing that transcendence to them in a paternalistic manner. The turn to a formal pragmatics of language and, subsequently, a discourse theory of ethics and democracy was meant to solve these problems.87

According to the later theory of discourse ethics, it is up to the agents themselves to test the generalizability of validity claims in discourses. Simi-larly, in a deliberative democracy, citizens are supposed to give themselves their own laws. However, this begs the question of the rationality of the discursive testing, and this is what rational reconstructions of universal and unavoidable structures of communication are supposed to provide an answer to: they set out the conditions under which communicating subjects and citizens may rationally decide the validity of claims and norms.


Although the earlier critical self-refl ection now divides into two—namely discursive tests of validity claims and rational reconstruction—the prob-lem of a practice of self-refl ection pulling itself up by the boot-strings does not disappear. Habermas becomes entangled in circularity. The rational reconstructions can be subjected to critical discourses in the philosophi-cal and scientifi c community, yet that begs the question of the conditions that make this discursive process rational. The answer to that question can only be given by rational reconstructions. The object of discussion, namely the reconstructed universals, becomes simultaneously the medium of the discussion. Although social agents are not burdened with the task of reconstructing the presuppositions they make behind their own backs when communicating, the philosopher and scientist are also communicat-ing agents whose reconstructive endeavour can only make use of the very language whose structures they are supposed to reconstruct. The ratio-nal reconstructor taking an external and observing attitude vis-à-vis lan-guage fi nds herself as a participant within the language she is trying to reconstruct. But, her participant perspective does not let her reconstruct language from a purely immanent perspective because the reconstruction presupposes the distance of the observer perspective.88 On the one hand, the gap between rational reconstruction and discourse must be maintained so that it is possible to establish the rationality of discourses independently of those discourses. On the other hand, the gap must be closed because the validity of the rational reconstructions must be established discursively. We are, thus, taken back to the (vicious) circularity that also characterized the earlier programme of human interests.

A related problem with the programme of rational reconstruction is the potential clash between the perspectives of the philosopher, the social sci-entist, and the social agents. The danger that the philosopher (possibly in conjunction with the social scientist) imposes purportedly universal struc-tures upon social agents in a paternalistic fashion has not disappeared. On the contrary, the division of labour between philosopher, social scientist, and social agent reinforces this danger when the philosopher-reconstructor takes the external perspective of an observer.

Habermas’s solution to this problem is to think of rational reconstruc-tions as fallible and hypothetical, just like the validity claims or the consen-sus arrived at: ‘all rational reconstructions, like other types of knowledge, have only hypothetical status. There is always the possibility that they rest on a false choice of examples, that they are obscuring and distorting correct intuitions, or, more frequently, that they are overgeneralizing individual cases.’89 These are practical problems that may in principle be overcome. It suggests that, to Habermas, the validity of the rational reconstructions is not essentially indeterminate (that is, they are not ‘to come’, to use a Der-ridean expression). Instead, for Habermas, the fallibility of the reconstruc-tions is a matter of not yet having the suffi cient knowledge. So, Habermas’s


fallibilism does not exclude the possibility of the future, correct elucidation of the quasi-transcendental structures. If, however, we accept the essential limit that all reconstructions face—namely, the fact that they must them-selves be cast in a natural language—then the fi nal, correct reconstruction must be forever postponed. (And here one would have to add the fact that rational reconstruction must retain a link to discursive justifi cation, which is in turn marked by the aporia identifi ed above, that is, by the impossibil-ity of a rational consensus.) Not only do we not yet have suffi cient knowl-edge to reconstruct the universal structures, but they will always elude us and remain ‘to come’, that is, they cannot be made present, whether now or in the future. That in turn implies that we rethink the status of the recon-structions as not merely fallible but a matter of contingent articulation, or of what one may also call politics: the politics of establishing what is taken to be the universal, rational, and natural.

The argument implies that there is an inescapable element of anticipa-tion in what the philosopher-reconstructor is doing. She anticipates—and can only anticipate—the universal structures, which can never be made present to us. Whatever privilege she may claim is undermined by the con-stitutive impossibility of a fi nal, correct reconstruction. This goes beyond Habermas’s fallibilism understood on the model of ‘not yet’ enough knowl-edge. Not only can we never establish the ultimate validity of rational reconstructions, there is always some opacity that prevents us from getting to the bottom of language. The gap between any particular reconstruction and the ‘to come’ is both constitutive and critical. In the latter sense, it can be held up against any philosopher-reconstructor who claims to have found the correct answer or to have found the way to fi nd the correct answer. Taking this perspective, it is impossible to avoid empiricism and the pater-nalistic positing of universals altogether. The reconstructions always pro-ceed from a particular perspective within a particular language (from a particular language game, we might say), and the universal structures are contingent articulations. Both of these aspects must be exposed through critical work. No reconstruction proceeds in a purely reconstructive man-ner; there is always an element of construction too. To claim, as Habermas does, that philosophy should and can be merely reconstructive, and thereby modest, is false modesty.90

In short, the problem with Habermas’s programme arises from the fact that the philosopher-reconstructor cannot step outside of what she is recon-structing, namely language. The basis of rationality announced in Knowl-edge and Human Interests, namely language, is simultaneously a limit to the rational reconstruction of the possibility of reason and freedom. Seen in this light, Habermas’s initial proclamation of an intersubjective and communicative basis for rationality and emancipation takes on a differ-ent meaning. Although—and because—language ‘raises us out of nature’, we cannot know its ‘nature’. ‘Our fi rst sentence’ may or may not express


‘the intention of universal and unconstrained consensus’; and if anything is ‘posited for us’, then that is just what it is: posited, not by nature, but by a particular and contingent reconstruction of it.

CONCLUSION

The notions of rational consensus and, by extension, rational discourse are marked by an aporia: the end of communication is simultaneously the end to communication. Not only does that mean that rational consensus is an impossible feat, as Habermas now also acknowledges, but it means that the condition of possibility of communication is simultaneously its condition of impossibility. Communication is possible qua impossible. There are thus not just empirical obstacles to rational discourse and rational consensus, but obstacles that are inherent to the concepts and practices of rational consensus and discourse. Hence, the critique of Habermas is not just that his notions of consensus and discourse are utopian or unrealistic, but that we need a different and better account of consensus, discourse, and, more broadly, communication. Such an account is beyond the scope of this book, although I would suggest that we look to Derrida’s work on iterability, for instance, for this account.91 What I do wish to address are the implications of this argument for how we think about reason, as the notions of rational consensus and rational discourse are central to Habermas’s conception of reason as communicative reason. One must, for example, take seriously conceptions of reason that do not have a telos of consensus or that do not claim to avoid a ‘performative contradiction’. In this way, it is possible to open a discussion of the question ‘What is reason?’ which is one of the top-ics of chapter 5. Opening a discussion over reason need not be paralysing; in fact, although there are no guarantees, it may be energizing. One might, for instance, criticize those who posit consensus as the inherent telos of reasoning and thereby effectively close down further discussion. In this and other ways, reasoning with reason, can contribute to what I, following Derrida, call an ‘ethics of discussion’ in chapter 5.

The arguments of the present chapter also have implications for the topics of the other subsequent chapters. In the next chapter, I examine Habermas’s proposal that, if conceived in deliberative terms, constitution-alism and democracy can be reconciled. The two chapters are linked in two respects. First, I argue in the next chapter that Habermas’s reconstruction of the necessary presuppositions of constitutional democracy is marked by a tension between a priorism and contextualism, and I argue that the reconstruction is a construction rather than a neutral reconstruction. Sec-ond, the proposed reconciliation of constitutionalism and democracy is supposed to refl ect the conditions of legal autonomy: to be fair, democracy must be mediated by constitutionalism, and vice versa. The result is that


the addressees of the law can understand themselves as simultaneously the authors of the law—a situation analogous to the one of a rational consen-sus. Yet, for reasons that I shall explain, the reconciliation of constitution-alism and democracy is impossible in a way similar to the impossibility of rational consensus. The arguments of this chapter are also linked to the argument of chapter 3. There I argue that the condition of possibility of tol-erance, inclusion, and equality is some intolerance, exclusion, and inequal-ity, and that, as a result, tolerance is a matter of political negotiation, not rational resolution. Finally, in chapter 4, I examine civil disobedience as one of those ‘marginal’ practices that can help give voice to those who have no voice in the present constellation and thereby provide a critical take on existing discourses and consensuses.

43

2 ‘A bizarre, even opaque practice’Constitutionalism and democracy

INTRODUCTION: CONSTITUTIONALISM AND DEMOCRACY

Since the mid-1980s, Habermas has developed a discourse theory of law and democracy in the guise of a theory of deliberative democracy. This follows his development of the theories of communicative reason and dis-course ethics dealt with in the previous chapter. The turn to law is neces-sitated, so Habermas argues, by the relative impotence of moral norms in large, complex societies. Morality cannot integrate these societies on its own and needs to be complemented by positive, enforced law, which is bet-ter suited to integrate a society of strangers. In The Theory of Communica-tive Action, with its well-known distinction between system and lifeworld, Habermas conceived of law as a systems medium. He highlighted the dan-ger of ‘juridifi cation’: the process whereby relationships in the lifeworld, which is otherwise integrated through communicative action, become colo-nized by systems imperatives and media. This is the case, for instance, in welfare state provisions of help to the disadvantaged who thereby become dependent on their legal categorization. The solution in The Theory of Communicative Action was to build a barrier around the lifeworld to pro-tect it from the systems.

In Between Facts and Norms, however, Habermas thinks of law and the relationship between system and lifeworld in a different and less defensive way. The aim is now to root the legal medium in communicative action and in discourse in the lifeworld, thereby subsuming law to the impera-tives of communicative action rather than the systemic imperatives of the state or the economy. As a consequence, Habermas argues, non-alienating, rational law becomes possible. Thereby Habermas can extend his theory of discourse ethics to law and translate the idea of moral autonomy (as expressed by the notions of rational discourse and rational consensus) into legal autonomy. The central idea to his discourse theory of law is autonomy understood as rational self-legislation. Autonomy ‘requires that those sub-ject to law as its addressees can at the same time understand themselves as authors of law’.1 This relation of self-legislation must of course—as is the


case in discourse ethics—take place under certain idealized circumstances of equality, full inclusion, and so on. In short, it must be based in the citi-zens’ free and equal deliberations on the laws that should govern their life together in the polity.

It is a widely held today, by laypersons as well as experts, that consti-tutional democracy is the best available form of government, and that it involves a ‘balancing’ or even ‘interdependence’ of its two key components: constitutionalism (human rights, the rule of law, and so on) and democ-racy (popular sovereignty, and so on). This idea has also been central to Habermas’s development of a theory of deliberative democracy and law since the mid-1980s. Given that constitutionalism and democracy are both seen as essential in some measure, the question is how they are related to one another. One may ask, for instance, which comes fi rst: constitutional-ism or democracy? In Between Facts and Norms and subsequent writings, Habermas argued that his discourse theory of democracy can reconcile constitutionalism and democracy and, thereby, solve some of the problems with other approaches.2

Habermas uses a number of different sets of terms to refer to approxi-mately the same entity: constitutionalism and democracy, private and public (or civic) autonomy, individual (or human) rights and popular sover-eignty, and the rule of law and democracy. Even if they do not mean exactly the same, I shall use the terms ‘constitutionalism’ and ‘democracy’ in the following discussion, especially because Habermas himself uses the dif-ferent sets of terms more or less interchangeably. The demos are supposed to give themselves their own laws—this is the idea of autonomy. But, as in discourse ethics, it is necessary to come up with certain specifi cations of the process of self-legislation in order to identify what would make it a process where the addressees of the laws really could see themselves as also the authors of the laws. This is the work of constitutional rights regulat-ing, among other things, membership, what can be legislated and how. Habermas’s thesis is that the relationship between constitutionalism and democracy must be one of co-originality in order to ensure autonomy and rational law. The addressees of the law will be able to see themselves as also the authors of the law if democracy is regulated by constitutionalism, if constitutionalism is mediated by democracy, and if one can be shown to imply the other so that one is not imposed on the other from the outside or in an arbitrary fashion. Habermas argues that if constitutional democracy is conceived as deliberative democracy, this symbiotic relationship between constitutionalism and democracy can be shown to be possible. At the same time, this guarantees freedom and equality: ‘no one is truly free until all citizens enjoy equal liberties under laws that they have given themselves after a reasonable deliberation’.3

What Habermas calls the co-originality thesis aims to show that consti-tutionalism and democracy simultaneously enable and require one another.

‘A bizarre, even opaque practice’ 45

Habermas refers to the co-originality thesis as ‘a strong intuition’. It refers to the mutual implication between constitutionalism and democracy:

In a certain way, we consider both principles [of constitutionalism and democracy] as equally original. One is not possible without the other, but neither sets limits on the other. The intuition of ‘co-originality’ can also be expressed thus: private and public autonomy require each other. The two concepts are interdependent; they are related to each other by material implication.4

Constitutionalism and democracy are not competing sources of legiti-macy, Habermas is saying. There is no democracy without constitution-alism, and vice versa; and one cannot, strictly speaking, say democracy without implying also constitutionalism, and vice versa. This thesis of the co-originality of constitutionalism and democracy is meant to solve a num-ber of problems, among them the relationship between the legislative and the judiciary, the role of judicial review, and interpretive constitutional dis-agreements. I will not be able to touch upon all these issues in this chapter. Instead, the following deconstructive reading of Habermas’s co-originality thesis shows that it is marked by an aporia analogous to the one identi-fi ed in relation to rational consensus in the previous chapter, and that the relationship between constitutionalism and democracy is characterized by a certain undecidability. On the basis of this reading of Habermas, I try to show the contours of a different, ‘deconstructive’ conception of constitu-tional democracy.

That the relationship between constitutionalism and democracy is no mere theoretical issue becomes obvious if one considers the 2000 US pres-idential election. Like the 2004 election, the 2000 election was marked by controversy over the election procedures. One of the most memorable images from the 2000 presidential election was that of election offi cials in the state of Florida examining ballot cards and looking for dimples and holes. What looked trivial and absurd to the onlooking world in fact turned upon an important political and philosophical problem. The election offi -cials were engaged in the identifi cation of the will of the American people. The election was supposed to be the expression of popular sovereignty, and the offi cials were trying to recognize the true will of the people in those holes and dimples. This was the context in which took place the calls to either just count the votes and let the people’s voice be heard or to follow the rules as they are stipulated in the election laws and the Constitution.

The will of the people did not express itself in an unmediated fashion. It was mediated by those ballot cards and by election offi cials’ interpreta-tion of them. Moreover, there are rules in place for how to identify the will of the people: constitutional rules and election laws determining who can vote, how they can vote, how their votes should be counted, and so on.


And there are institutional remedies in place for interpreting those rules, namely the courts and, in the last instance, the US Supreme Court. So, democracy—the popular sovereignty of the people—is mediated by the rule of law and constitutionalism; for instance by rules for the equal right to vote and, hence, for the equal right to be counted as partaking in the people. This mediation of democracy by constitutionalism secures equal-ity and bestows legitimacy upon democracy. Similarly, constitutionalism is mediated by democracy. Constitutional rules and human rights are not simply given, but put in place by elected representatives chosen by the peo-ple and interpreted by judges chosen by the people or their representatives. Hence also the references in the US Constitution to the will of the people (‘We, the people of the United States…’). So, democracy mediates constitu-tionalism and thereby bestows legitimacy on it.

THE CO-ORIGINALITY THESIS

Habermas’s co-originality thesis should be seen in the context of his dis-course theory and his conception of autonomy. Habermas understands democratic autonomy to be in place when the ‘citizens [are] able to under-stand themselves also as authors of the law to which they are subject as addressees’.5 This notion of autonomy is closely linked to the discourse principle and the democratic principle, the thrust of which is that validity, including the validity of legal norms, can only be settled in public delibera-tions under certain idealized conditions of full information, equal access, symmetry, and so on. Echoing the discourse principle, the democratic prin-ciple states that ‘only those [legal] 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’.6 Constitutional democ-racy is the concrete realization of these principles. This is also expressed in the ‘system of rights’ that Habermas reconstructs as the basis of legitimate law and of constitutional democracy. The system of rights includes differ-ent categories of rights, for instance rights to equal liberty, to membership of the polity, and so on, and can be specifi ed through the rational recon-structive method.7

The addressees of the law must simultaneously be its authors, and this condition extends to the laws of lawmaking, that is, the constitution. In large, complex societies, the immediate identity of addressees and authors is possible neither in everyday lawmaking nor in constitutional lawmaking. Yet, the addressees of the law must at least be able to understand them-selves as simultaneously the authors of the law. Hence, the constitution must be subject to democratic will-formation, at least in theory.8 At the same time, however, democratic will-formation must be constitutionally regulated in such a way as to protect the pluralism of modern societies and the singularity of each individual. The citizens can only understand


themselves as the authors of the law if they are simultaneously constituted as free and equal subjects under the law. Hence, the thesis of co-original-ity—or ‘co-implication’9—states that there is a relation of mutual implica-tion and presupposition between constitutionalism and democracy. Their relationship is internal and enabling rather than external and constrain-ing. Whereas the mediation of constitutionalism by democracy secures that constitutional rights are not paternalistically imposed on the demos, the mediation of democracy by constitutionalism makes sure that the singular-ity of each individual is protected against ideas of a homogeneous demos. In short, the mutual mediation of constitutionalism and democracy ensures that autonomy is not limited by how we do things here and now, whether an existing constitution or an existing conception of the good life.

It is important to stress that, in Habermas’s view, he does not rationally reconstruct substantial values—which would not be possible given the starting point of pluralism—but ‘the formal properties of the democratic process’, which are expressed in the different categories of rights in the ‘system of rights’. He can then conclude that

the idea of human rights is inherent in the very process of a reason-able will-formation: basic rights are answers that meet the demands of a political communication among strangers and ground the pre-sumption that outcomes are rationally acceptable. The constitution thereby acquires the procedural sense of establishing forms of com-munication that provide for the public use of reason. … Because this ensemble of enabling conditions must be realized in the medium of law, these rights encompass both liberal freedoms and rights of political participation.10

Here we have, in nuce, all the elements of Habermas’s argument: the inter-nal, conceptual relation between constitutionalism and democracy, the connection between this relationship and rational acceptability, the empha-sis on procedure, and the link to the system of rights.

Through the deconstructive reading of Habermas’s texts in the follow-ing, I show that the relationship between constitutionalism and democracy is ultimately marked by undecidability, and that, contra Habermas, this undecidability is what accounts for how constitutional democracy works. In addition, I will show that Habermas is only able to reconcile constitu-tionalism and democracy by introducing a ‘fi ction’, yet this fi ction does not solve the undecidability, but only displaces it. Throughout the chapter I will make use of Bonnie Honig’s related critique of Habermas, but in the last section of the chapter, I discuss the limitations of her critique. There I also draw on the works of Chantal Mouffe and Alan Keenan. This also serves to show the implications of the deconstructive reading for the politics of constitutional democracy and for how one reads philosophical and politi-cal texts.


VICIOUS CIRCULARITY AND INFINITE REGRESS

We can start by considering the process of making (and interpreting) the constitution.11 That process has to be democratic, but, as such, it must also be constitutional. The question is then how the process of constitu-tion making can itself be constitutional. The democratic process of con-stitution making must not only be democratic; according to Habermas, it must simultaneously be constitutional so that the citizens exercise their democratic autonomy as free and equal legal persons. If the process were not constitutional, it would not be democratic, because constitutionalism and democracy are not only mutually enabling but also presuppose one another. Without constitutionalism, democracy is lacking, and vice versa.

If democracy is not already constitutional, it cannot be democratic proper, according to Habermas. Likewise, if constitutionalism is not already mediated by democracy, it is not constitutional proper, but lacking. Here one need only think of the situation in Iraq after the US led invasion in 2003. One may argue that a new Iraqi constitution can only be legiti-mate if the Iraqis, as a demos, can view it as the result of their own exercise of democratic autonomy, rather than it being imposed on them from the outside by the US-led occupiers. However, in order for democratic consti-tution making to be legitimate, it must already be constitutional; so, one is caught in a vicious circle. Constitutionalism and democracy must already be co-original and mutually mediated; they cannot become so. If democ-racy is not already constitutional (and vice versa), it will not be able to properly mediate constitutionalism, which will then not be able to properly mediate democracy, and so on ad infi nitum. Constitutionalism is precisely not only an enabling but also a necessary condition of democracy, and vice versa. This is not only a problem for the Iraqis who fi nd themselves in this vicious circle of legitimacy, but for anyone who wants to start a process of democratization: where does democratization start from—the institution of constitutional rights or the exercise of popular sovereignty? In the case of Iraq, this emerged, among other things, as a question of what freedom means, and when the US-led coalition could claim to have given the Iraqis their freedom: does it amount to individual rights or collective self-determination?

The matter is complicated by the absence of agreement about who con-stitutes the demos that should make the constitution, and on what the pro-cess of constitution making should look like. For instance, in Iraq, what was lacking was agreement on who should make up the Iraqi demos: should that demos be thought of as a homogeneous unity, for instance, or should it be conceived as consisting of three distinct demoi (Sunnis, Shias, and Kurds)? The constitution is supposed to give answers to this kind of ques-tion, but the constitution is precisely lacking, whether completely or just in part. One way to deal with this problem is to divide the process of consti-tution making into different stages. In the case of Iraq, this was done by


fi rst setting up a constitutional council to draw up a constitution, which was then voted on, and subsequently that constitution is used to set up a body— the parliament—to represent the will of the people. This provides a way to negotiate the potential lack of legitimacy by moving part of the constitution making process into a council enjoying a special status of neu-trality and representativity. Of course it does not solve the problem—for instance, the Iraqi constitutional council was still dependent for its legiti-macy on recognition by the people.

This is not an accidental problem. Given the value of autonomy, of rule by the people, the identity and limits of the people must also be subject to the will of the people. It is, thus, essential that the identity of the people— who belongs to it and how?—is itself in question. Only in that way can the people be autonomous and free. Yet, this has two implications, both of which are central to the argument in the following. First, we are caught in an infi nite circularity where democracy can never—for essential rea-sons— settle its identity and limits. Of course the identity and limits are settled all the time (for instance, in Iraq), but some uncertainty remains about who exactly make up the people and how. We may say that disagree-ment persists, not just among the members of a certain demos, but over the very limits and identity of the demos, including over who should be a member of the demos. Second, if the identity and limits of the people are never settled once and for all, the people here and now (or part of it) will make claims in the name of the ‘whole’ people that can never materialize. For instance, when drawing up a constitution for Iraq, the constitutional council had to claim to speak in the name of or and to represent the people of Iraq, even if they could not ‘really’ do so because that people did not yet exist. This is not just a problem that arises at the beginning of the con-stitutional process, but one that arises every time someone speaks in the name of the people.12 As we shall see below, these two points have wider implications for Habermas’s argument about constitutionalism, democ-racy, and autonomy.

What should have been the solution to the problem of legitimate law and democratic autonomy—namely the co-originality of constitutionalism and democracy—turns out to be also the problem, because you cannot have one without the other. If one is not in place, neither is the other. Insofar as one of the two components—constitutionalism or democracy—is not fully in place, we are dealing with a vicious circularity. Only when both are fully in place, mediating and supporting one another, is the circularity positive. We should not necessarily think of the relationship between constitutionalism and democracy as one of either vicious circularity or positive circularity. The point is rather that if one of the two necessary components is not in place, then disagreement will persist, and this disagreement will go all the way down, so to speak, and also concern the very meaning of constitution-alism and democracy and how the two should be combined. This is not only a problem arising at the beginning of the circle, as it were. There is a vicious


circularity whenever one of the two necessary elements— constitutionalism or democracy—is not fully in place, because there is not only a relation of mutual implication between the two but also one of mutual presup-position. The circularity materializes whenever the legitimacy of the law is questioned and the parties make reference to constitutional rights or to the demos—in short every time there is disagreement. Thus, one can-not reject this kind of argument, as Seyla Benhabib does in her critique of Derrida’s deconstruction of the American Declaration of Independence, by saying that it only focuses on the origin of constitutional democracy and, hence, confuses the ordinary practice of constitutional democracy with the exception on which it relies.13 The undecidable relation between constitu-tionalism and democracy that I propose to trace in Habermas’s conception of constitutional democracy is not something marginal, but at the heart of constitutional democracy as it works on an ‘everyday’ level. It may be most visible at the moment of the foundation of constitutional democracy, but in fact it arises whenever the legitimacy of the law is at stake. When con-stitutionalism and democracy are not both fully in place, the co-originality thesis will need to be supplemented. As I shall argue in the next section, for Habermas, this supplement is an idea of a constitutional interpretive tradi-tion and a telos of future reconciliation.

The reverse side of the vicious circularity is a problem of infi nite regress. The problem of infi nite regress, which Frank I. Michelman has highlighted in relation to Habermas’s work,14 arises when we ask for the constitu-tionalism of democracy. Although the question can be answered, at least provisionally, with reference to the constitution or an interpretation of it, this answer only raises the further problem of the democraticness of the constitution. The regress of the chain of reasoning can only be stopped by arbitrarily cutting it off at some point, for instance, by asserting a cer-tain constitutional content. Constitutionalism is supposed to protect the singularity of each individual, but must itself be mediated by democracy. The chain of reasoning about the democraticness of the constitution (and the constitutionalism of democracy) cannot be closed with reference to an original constitutional text, because the latter is open to an infi nite number of different interpretations irreducible to any essential core of the consti-tutional text. Nor can the regress be stopped with reference to the dem-ocratic process of constitutional interpretation, because disagreement, it would seem, also concerns the democratic character of that process. Thus, the infi nite regress prevents the reconciliation of constitutionalism and democracy as well as the stabilization of any of the two elements and of their mutual relationship. Habermas is facing a Munchausen’s trilemma: he must avoid vicious circularity, infi nite regress, and arbitrary decisionism. This is so at least if there is disagreement all the way down, that is, if, as Habermas says, there is ‘a permanent risk of dissensus’ and ‘radical and enduring controversies on constitutional matters’.15


IN THE ‘WHIRLPOOL OF TEMPORALITY’

As a solution to the circularity and regress problems, Habermas proposes that the relationship between constitutionalism and democracy can be con-ceived as an ongoing, self-correcting process of constitution making. He writes:

the alleged paradoxical relation between democracy and the rule of law [or constitutionalism] resolves itself in the dimension of historical time, provided one conceives the constitution as a project that makes the founding act into an ongoing process of constitution-making that continues across generations.16

For this learning process, it is not critical that the ‘constitution that is democratic—not just in its content but also according to its source of legiti-mation—is a tradition-building project with a clearly marked beginning in time’.17 In other words, it is not critical that the constitution as a project has an arbitrary origin, one that is not simultaneously fully constitutional and democratic. However, for the project of constitutional democracy not to be contaminated by its particular and arbitrary historical genesis, the latter must be seen as part of a project ‘understood in the long run as a self-correcting learning process’.18 Only in this way can the genesis of con-stitutional democracy be conceived as internal to constitutional democracy without contaminating it with its arbitrariness and the non-reconciliation of its two components—only in this way can constitutional democracy pull itself up by the boot strings, as it were.

One of the things at stake here is Habermas’s conception of time and history. He writes:

To be sure, this fallible continuation of the founding event can break out of the circle of a polity’s groundless discursive self-constitution only if this process—which is not immune to contingent interruptions and historical regressions—can be understood in the long run as a self-correcting learning process.19

On the one hand, Habermas takes as constitutive the ‘contingent inter-ruptions and historical regressions’ of time. The contingency of history makes a difference, and, as a result, the reconciliation of constitutionalism and democracy is in no way guaranteed, but merely a contingent possibility. On the other hand, as Bonnie Honig has also pointed out,20 contingency and historicity are framed by and constrained within a quasi-teleological conception of history: ‘in the long run’, contingency is relative to the prog-ress of the history of constitutional democracy conceived as a teleological learning process. It is with reference to this history of progress that past


and present mistakes can be recognized as just that: accidental mistakes from which we can learn and thereby progress. It is to the time of constitu-tional democracy that I now turn.21

Habermas characterizes the relationship between constitutionalism and democracy as a learning process along two lines, each taking his argument in slightly different directions: (1) in terms of a constitutional tradition, where later generations continue the project interpreting the normative content of the constitution embarked upon by earlier generations; and (2) in terms of the performativity and promise of reconciliation inherent in the democratic practice of constitution making.

(1) Habermas wants to steer clear of the Scylla of communitarianism and the Charybdis of non-cognitivism. The problem with the former is that it dissolves constitutional disagreement in the tradition of a given commu-nity. This guarantees the reconciliation of constitutionalism and democ-racy, because they are both mediated by and internal to the content of the communitarian tradition. It also guarantees the identity of lawgivers and lawtakers because their identity is secured by the fact that they belong to the same tradition. However, Habermas argues that this limits the auton-omy of the citizens in a paternalistic way, because the tradition is given to them from the outside, unmediated by their free and equal yes/no position-ing. The tradition stops the regress in an arbitrary and illegitimate fashion by positing ‘something given, something that is no longer in need of further justifi cation’.22 This is so in the republican approach of someone like Frank Michelman and in the communitarianism of someone like Alessandro Fer-rara.23 For both republicans and communitarians, according to Habermas, the relationship between constitutionalism and democracy presents itself as a problem ‘for us’, where the identity and limits of the ‘we’—the demos—is given prior to the process of sorting out the relationship between consti-tutionalism and democracy. One needs only to think again of post-2003 Iraq, where the identity of the demos is often imposed by foreign powers or local leaders, for instance, as a unitary Iraqi ‘we’ or as the three particular identities of Sunni, Shia, and Kurd, between which Iraqi citizens are forced to choose.

The non-cognitivist approach does not provide an adequate answer to the challenge of infi nite regress either. For non-cognitivists, there can be no interpretation of the constitution that is both fi nal and rational, and hence there can be no fi nal and rational reconciliation of constitutionalism and democracy.24 On the contrary, Habermas wants to retain the prom-ise of reconciliation and agreement while respecting ‘the unavoidability of endemic disagreement’ among singular individuals.25

Habermas’s fi rst line of argument is, then, the following:

the interpretation of constitutional history as a learning process is predicated on the nontrivial assumption that later generations will start with the same standards as did the founders. … The descendants


can learn from past mistakes only if they are ‘in the same boat’ as their forebears.… All participants must be able to recognize the project as the same throughout history and to judge it from the same perspective.26

However, this immediately raises the problem that present and future gener-ations are constrained by something given and external to their democratic interpretation of the constitution, namely the ‘standards’ and ‘perspective’ of a constitutional tradition. Thus, this line of argument does not escape the problems Habermas identifi es with the republican and communitarian approaches.27

It is also problematic to understand the democratic interpretation of the constitution as ‘the task of actualizing the still-untapped normative sub-stance of the system of rights laid down in the original document of the constitution’.28 This presupposes that ‘the original document of the con-stitution’ really does contain as-yet unrealized sources of rights, and that these are sources which subsequent generations will want to tap into. The citizens are, then, as Honig has also argued, restricted to interpreting in different ways the normative content of a document and a tradition handed down to them, and which they cannot reject as not theirs.29 The democratic interpretation of the constitution is framed by and takes place within a constitutional tradition, when this constitutional tradition is precisely what should also be at stake and should not limit, but only enable, democracy. The question whether this tradition is indeed ours cannot be raised, and the question of who ‘we’ are and whether we belong to the same ‘we’ is bracketed. Again the example of the constitutional process in Iraq provides a good example of a case where one of the points of contestation is whether the potential citizens of Iraq are really ‘in the same boat’, that is, whether there is such a thing as an Iraqi people that can and will embark on a com-mon project. Another example, and one invoked by Habermas, is the US constitutional tradition. Habermas takes US constitutional history as an exemplary case of a ‘dynamic interpretation’ of the process of constitu-tion making. Periods of ‘productive radical change’ such as the New Deal, Habermas writes, ‘make possible the rare experience of emancipation and leave behind the memory of an instructive historical example’ so that, ‘[i]n retrospect’, the citizens can see the progress as progress.30 This description of US constitutional history of course overlooks those periods of conser-vatism and regression that are not productive or progressive, and it does not tell us anything about the diffi cult work of those working for a more progressive constitution and who do not have the comforting hindsight of retrospect. Again one need only think of the systematic obstacles for certain groups of voters—especially blacks—to cast their votes in Florida during the 2000 US presidential election.

Moreover, and following the argument pursued here, Habermas assumes a sense of shared-ness—of being in the same boat—that only emerges in retrospect. It is only in retrospect that hitherto excluded groups can see


themselves as part of ‘we, the people’.31 However, this ‘we’ must change its character through the inclusion of these otherwise excluded groups because what belonging to the people means—and hence its identity and limits—is itself changed through the process of extending the people. In short, the process of constitution making, proceeding in the name of democracy and the people, must be carried out in the name of a ‘we’ that is itself in motion and that is itself constituted through the process of constitution making. This demos is not, as Habermas writes, ‘an association of citizens that has defi nite social boundaries’.32 To avoid the fl eetingness of the identity and limits of the demos, Habermas posits the constitutional tradition as external to and prior to the practice of constitutional democracy—precisely what he otherwise wanted to avoid. Indeed, if progress is possible and the past and present therefore imperfect, the past and present must be open to improvement and even rejection.33 Constitutional democracy and the con-tent of the constitutional rights must, in short, be an open question.

(2) There is another line of argument in Habermas that seeks to avoid recourse to a pre-given identity in any of the forms considered above. It is not clear to what extent Habermas sees the two lines of argument as dis-tinct or the second line, which is most pronounced in his most recent writ-ings, as a correction to the fi rst. The second line of argument substitutes a focus on the future for the focus on the past, and it moves the focus from the content of the constitutional tradition to the performativity of constitu-tion making. According to this line of argument, the only ‘constraint’ on democratic constitution making and interpretation ‘is that citizens must see themselves as heirs to a founding generation, carrying on with the common project’. This now has a different meaning because it refers to ‘the intuitive meaning of [the] performance’ of constitution making.34 As such, it is sup-posedly an internal and enabling rather than an external and constraining condition. Habermas continues:

The performance of those founding acts from which self-governing communities originate thus contains an implicit, intuitively available meaning that is the same for everybody, though it is spelled out and explicated in the wordings of so many different texts, interpretations, and implementations. The performative meaning remains the implicit but stable point of reference, though any attempt at its explication is only one among various possible versions.35

The focus is now on the process of constitution making and interpre-tation rather than on the constative content of a constitutional tradition. The intuitive performative meaning of democratic constitution making ultimately refers to ‘the epistemic promise of an unrestricted exchange of a suffi ciently wide range of relevant reasons’.36 That is, it refers to the ideal-ized presuppositions of a process of constitution making and interpretation among citizens ‘tacitly presupposing, albeit counterfactually, the possibility


of an agreement that is worthwhile to aim at’:37 a common project, but one for the future. The promise of future agreement and reconciliation, rather than the agreements of the past, Habermas argues, simultaneously pro-vides room for disagreement and a ‘stable point of reference’. The content of the constitution refers to the performativity of democratic lawmaking, and there is, thus, no tension between the two. Instead the process proceeds in what Habermas refers to as a ‘performatively self-referential manner’.38

In the fi nal analysis, both the standards of the past and the brightness of the future guarantee the reconciliation of constitutionalism and democ-racy and the unity of the process of constitution making. If framed by the constitutional tradition, the latter limit the interpretations of the constitu-tion so that they do not multiply indefi nitely. Similarly, the idea of a future reconciliation of constitutionalism and democracy fi lls the gap that may exist at any time between the two. In both cases, Habermas’s conception of history and temporality reduces the past, present and future to different internal moments of the same (quasi-teleological) space.39 Habermas pre-supposes that the process of constitution making, understood as a learning process, is of one piece. The orientation towards agreement and consensus in the future is not at stake for instance, nor is the learning process as a progressive learning process or the perspective of past constitution making as our perspective. For instance, in Habermas’s model, will the citizens of a future Iraq be able to disagree that their constitution is in fact theirs and not something imposed upon them by a past occupational power? Whether Habermas would in fact exclude such a critical attitude on the part of the Iraqis is unlikely, but it is not clear from where his critical perspective on the Iraqi constitutional process would come. Notice that I am not arguing that it is possible to oppose any particular, imperfect constitution to a per-fect and fully democratic and constitutional constitution. Nor am I arguing that the problem with Habermas is that he does not provide us with a per-fect solution. We are always in the fi eld of imperfect constitutionalism and democracy, where the disagreements over the constitution and over what democracy means, who belong to the demos and how, are not resolved.40 The problem with Habermas is rather that he does not acknowledge this and work from there.

Disagreements are framed by and internal to a given space, whether they are judged by the standards of the past or the brightness of the future. This is what, following Cornelius Castoriadis I will refer to as ‘spatialization’:41

difference, disagreement, contingency and constitutional democratic prac-tices are framed by and contained within a space whose boundaries are given in advance. This framing serves to fi ll out the gap between constitu-tionalism and democracy, thus reconciling them, and it serves as a way to contain and, thereby, master difference, disagreement, contingency, and so on—in short, all the risks of constitutional democracy. In a similar vein, the notion of the future in Habermas’s texts is what Jacques Derrida refers to as a ‘future present’.42 It is temporality, historicity, and futurity understood


as presence, as a modality of the present—in short, as ‘space’ in Castoria-dis’ sense. It is a future understood as the continuation of the same, for instance, as the unfolding of a system of rights in the constitution, or as the anticipation of a future agreement. In both cases, what will be, and what can come to be, are already there in some form. Hence, Habermas is only able to close the gap between constitutionalism and democracy, and thus reconcile them, by casting as secondary the contingency and historicity of constitutional democracy that he has otherwise insisted are constitutive.

If, however, one insists on the irreducibility of disagreement and differ-ence and on the ineradicability of contingency—and Habermas also does that—then the reconciliation of constitutionalism and democracy retains, and must retain, the character of ‘to come’, Derrida’s term for a future ultimately irreducible to and heterogeneous to any present.43 A future to come is not only different from the present or the past, but also has a temporal character that cannot be reduced to any spatial difference. The future to come cannot be spatialized or mapped, not because it lies in a beyond, but because it is simultaneously constituted and deferred through our contingent and imperfect action here and now. Thus, the reconciliation of constitutionalism and democracy is always deferred and never present. For Habermas, this deferral is one that both should and can be overcome— a not-yet rather than a to come. Without the telos of agreement, demo-cratic interpretation of the constitution would be ‘a bizarre, even opaque practice’.44 However, as I shall argue in more detail below, this temporal out of jointness that Habermas seems to overcome is in fact what makes practices of constitutional democracy meaningful. If constitutionalism and democracy were reconciled, if the addressees of the constitution were iden-tical to its authors, or if we had arrived at a fi nal and rational consensus eliminating all disagreement, there would be neither need nor room for deliberation, constitutional interpretation, or other practices of constitu-tional democracy. This is analogous to the aporia identifi ed in relation to rational consensus in chapter 1: for constitutional democracy—understood as deliberative democracy—to be a meaningful practice, there must be disagreement over whether constitutionalism is constitutional and demo-cratic, and so forth. Only in the ‘whirlpool of temporality’45 can constitu-tional democracy be understood as a project for the future. Disagreement and contingency, vicious circularity and infi nite regress, and so on, are not things to be overcome, but part of what makes constitutional democracy a worthwhile enterprise. They are constitutive of constitutional democracy, which is not to say that they are valuable in themselves—what matters is how one relates to them.

UNDECIDABILITY AND FICTIONS

The thrust of Habermas’s co-originality thesis is that constitutionalism and democracy both enable and require one another. Without constitutional-


ism, democracy is lacking, and vice versa. However, my argument is that there always remains a gap between constitutionalism and democracy, that they are never reconciled, and that this offers a better account of how con-stitutional democracy works.

Democracy must posit—retroactively, as it were—constitutionalism as prior to itself in order to be constitutional, because it cannot be properly democratic and legitimate without being simultaneously constitutional. Democracy must posit itself as always and already fully constitutional. Although constitutionalism is mediated by democracy, it must be pos-ited as if it were already fully in place, prior to democracy. The process of democratic constitution making can only be legitimate if it is already constitutionally regulated. And yet, this is not all. Democracy must be con-stitutional, but constitutionalism must also be mediated by democracy in order not simply to be given to democracy from the outside.

The moment when democracy posits itself—‘in a sort of fabulous ret-roactivity’46—as constitutional, for instance, accordingly cannot be com-plete. The retroactive suture must be successful in order for democracy to be constitutional. Yet, it cannot succeed if democracy is not simply to be the vehicle of constitutionalism; that is, if democracy is not simply to be the repetition and unfolding of constitutionalism. There must, in other words, remain an independent role for democracy in putting into place and inter-preting constitutionalism, so that the performative aspect of democracy exceeds the constative aspect of constitutionalism. The mediation of consti-tutionalism by democracy cannot be simple repetition, but must involve an element of contingent articulation: for constitutionalism to be democratic, the democratic alteration—and not just repetition—of the constitution must be an essential possibility. Democracy must also give, and not simply be given, the conditions of democratic constitution making, which are set down in the constitution. In order to be legitimate (and to be democratic), democracy must be the continuation of constitutionalism, yet it must also be able to break with any existing constitutional content. Likewise, con-stitutionalism must be at once iterable by (because the ground of) and alterable by (because the product of) democracy. Constitutionalism must come both before and after democracy. In Derridean terms, constitutional democracy is marked by iterability, that is, by the undecidable relation-ship between iteration and alteration, continuation and institution.47 But this iterability—and the gap between constitutionalism and democracy—is required for its functioning. As Derrida writes in another context: ‘It is not a question here of an obscurity or of a diffi culty of interpretation, of a prob-lematic on the way to its (re)solution. … This obscurity, this undecidability between, let us say, a performative structure and a constative structure is required to produce the sought-after effect.’48 Whereas, for Habermas, the ‘felicity’ of constitutional democracy depends on the reconciliation of con-stitutionalism and democracy, on the deconstructive argument that I am proposing here, its ‘felicity’ depends on the simultaneous implication and heterogeneity between constitutionalism and democracy.


It is not a matter of either repetition or alteration, either continuity or discontinuity, or simply of more or less of one or the other. Rather, the undecidability arises because what is the condition of possibility of con-stitutionalism—namely, democracy—is simultaneously its limit because democracy must both come before and after constitutionalism (and vice versa from the viewpoint of democracy). It is not a problem that can be solved by choosing one over the other or by adjusting the relative weight of the two terms. When prioritizing constitutionalism over democracy, for instance, you both get less and more constitutionalism, because the relation between the two is one of mutual competition and mutual presupposition. Although I get more constitutionalism by prioritizing it over democracy, I simultaneously get less constitutionalism because the latter is made pos-sible by democracy.

Constitutionalism is, thus, simultaneously the condition of possibil-ity and the condition of impossibility of democracy (and vice versa). One always requires, yet—contra Habermas—is also limited by the other. Their relationship, we might also say, is undecidable, that is, marked by an undecidability that cannot be dissolved or resolved in a reconciliation or balancing of constitutionalism and democracy. This undecidability can also be expressed in terms of iterability, but it can also, and following the argument of the previous section, be expressed in terms of Derrida’s notion of différance. The relationship between constitutionalism and democracy is marked by a simultaneous lack and lag, both of which undermine the copresence of constitutionalism and democracy. It is marked by a lack inso-far as one is never fully present for the other, insofar as they differ through the constitutive gap between them; and it is marked by a lag insofar as their co-presence is always deferred, thus making constitutional democracy con-stitutively out of joint. Hence, we can characterize the ‘non-spatializable’ relationship between constitutionalism and democracy not only in terms of iterability but also in terms of différance: democracy must be simultane-ously present and absent to constitutionalism, and vice versa.49

The relationship between constitutionalism and democracy is not one of either internality or externality, either mutually enabling conditions or limits. You cannot have one without the other, yet they stand at a slight dis-tance from one another. It is not a distance that can be measured, or a gap that can be closed, though. This lack (or lag), the slight but infi nite distance between constitutionalism and democracy, cannot be recuperated; it is con-stitutive. This is what makes constitutional democracy go around. With-out the undecidability, constitutional democracy would not work. Without democracy as its condition of possibility, constitutionalism would not be properly constitutional, yet democracy, at the very moment it makes consti-tutionalism possible, also limits it, thus suggesting that a certain imperfect-ness is necessary—that, in a certain sense, constitutional democracy is only possible as impossible. But, if democracy needs constitutionalism (and vice versa), then democracy cannot repair a lack in constitutionalism, because


democracy will itself be lacking as a result of this incompleteness in consti-tutionalism. We cannot escape vicious circularity and infi nite regress. The irreconcilability of constitutionalism and democracy—and the undecid-ability of their relation—both makes constitutional democratic practices meaningful and means that we live in an imperfect world and will continue to do so. This undecidability is not something to be regretted or overcome. We are caught in the vicious circularity and infi nite regress resulting from this undecidability, but the overcoming of these would be the end to consti-tutional democracy. The undecidability not only explains better how con-stitutional democracy is in fact possible, because the reconciliation of the two components of constitutional democracy would be the end to it (there would be nothing more to deliberate on because the addressees of the law would be simultaneously the authors of the law). The undecidability also provides a different view of the politics of constitutional democracy, which I shall return to in the fi nal sections of the chapter.

Habermas, of course, attempts to reconcile constitutionalism and democ-racy. As I argued above, he does so in two different ways: fi rst, by situating the relationship between constitutionalism and democracy within a consti-tutional tradition; and, second, by situating the relationship within a quasi-teleological movement towards agreement and reconciliation. In both cases, they provide the frame for and stabilize the relationship between constitu-tionalism and democracy. They ‘hold the place of the last instance’50 so that we avoid vicious circularity and infi nite regress. In either case

discourse theory simulates an original condition: an arbitrary number of persons freely enter into a constitution making practice. The fi ction of freedom satisfi es the important condition of an original equality of the participating parties, whose ‘yes’ and ‘no’ count equally. The par-ticipants must…[be] united by a common resolution to regulate their future life together…[and be] ready and able to take part in rational discourses […] a series of constructive tasks that must be completed before the work of constitution making can actually begin.51

The fi ction of constitution making under conditions of freedom and equality is posited outside and prior to the whirlpool of constitutionalism and democracy, and frames the latter. It thereby secures their reconciliation and solves the vicious circularity and infi nite regress. This fi ction opens up a space and a time for constitutional democracy, but simultaneously closes—and ‘spatializes’—them. For instance, the fi ction frames the poli-tics of constitutional democracy as a question of the reconciliation of con-stitutionalism and democracy. The fi ction—the simulation, the subjunctive ‘as if’—serves to master undecidability by putting in place the conditions for the reconciliation of constitutionalism and democracy even before the politics of constitutional democracy have begun. ‘[I]n a sort of fabulous


retroactivity’,52 the fi ction asserts that equality and freedom have already been in place, for instance by positing that we are all ‘in the same boat’.53

The ‘work of constitution making’ only begins after these conditions are in place, according to Habermas, and so the political struggles over constitutionalism and democracy are relative to these conditions. Yet, the fi ctional status of the presumption of freedom and equality moves the pre-sumption outside of the reach of critique: after all, who would want to criticize freedom and equality, even if they are counterfactuals? But what if the burdens of the counterfactuals are unevenly distributed? What if, for example, the conditions that ‘[t]he participants must…[be] united by a common resolution to regulate their future life together…[and be] ready and able to take part in rational discourses’ do not in fact treat everybody equally—for instance those who do not want to ‘regulate their life together’ with those who were previously their masters, or if one is not committed to ‘rational discourse’ à la Habermas? In that case, the fi ctional status of the counterfactuals takes focus away from their actual effects.54

In addition, Habermas suggests that we ‘carefully distinguish two stages’:55 the fi rst stage ‘amounts to nothing more than refl ecting on and conceptually explicating the specifi c meaning of the intended enterprise on which the participants have embarked with their very practice of constitu-tion-making’.56 ‘Thus far, nothing has actually happened.’ It is only in the second stage that the agents set about to realize the principles they have come up with ‘in mente, so to speak—even if the process is supposed to have taken shape in the course of a deliberative practice’.57 Leaving aside the irony that Habermas here makes use of the argument of an ‘veil of empirical ignorance’ that he criticizes in Rawls,58 the important thing to note is that something has actually happened in the fi rst stage, and this limits the scope of manoeuvre in the second stage, both for the citizens themselves and for the critic (even if we may argue that the fi rst stage is a retroactive projection from the perspective of the second stage). The two-stage model depoliticizes whatever is decided in the fi rst stage by taking it off the agenda for the second stage, which then only consists in actualizing what was laid down in the fi rst stage. The second stage becomes a stage of realizing what was discovered in the fi rst stage. It mirrors the problems with the division between rational reconstruction (philosopher and social scientist) and practical discourse (citizen) discussed in the previous chapter. As was the case there, the problem here is the movement from one stage or role to the other. In the case of the reconstruction of the presuppositions of constitutional democracy, the reconstructions must, on one hand, pro-ceed from the outside and from an observer’s perspective, but, on the other hand, they must be reconstructions of performative or intuitive presup-positions made by the participants themselves. As was the case in chapter 1, both ‘stages’ are better conceived as the construction—rather than the discovery or realization—of universal procedures, a constitutional system of rights, and so on.59


‘A BIZARRE, EVEN OPAQUE PRACTICE’: THEORETICAL AND POLITICAL STRATEGIES

So far I have argued that constitutionalism and democracy cannot be rec-onciled, but that this better explains how it works, and that this highlights the role of disagreements and struggles over the defi nition of constitutional values and of what democracy means, of who the people are and how they should rule. The deconstructive reading has identifi ed ambiguities in Habermas’s texts and then tried to make sense of these in terms of iter-ability, différance and undecidability. The aim has not been to dissolve the ambiguities, but rather to examine how Habermas deals with them through the introduction of a fi ction, a two-stage model and the prioritization of a quasi-teleological history over contingency. The critical point vis-à-vis Habermas is not that he does not do enough to reconcile constitutionalism and democracy, but rather that he does not acknowledge the impossibility of reconciling the two, and that we are better off pursuing different theo-retical and political strategies.60

At the level of theoretical strategy, and as argued above, the textual unde-cidability in fact explains better the possibility of constitutional democracy, even if this undecidability is simultaneously the condition of impossibility of constitutional democracy: constitutional democracy is never (fully) con-stitutional, democratic or both. As opposed to this, Habermas believes that ‘[b]y simply clarifying the concepts [of constitutionalism and democracy], the alleged paradox disappears: enabling conditions should not be con-fused with constraining conditions’.61 Habermas, like Seyla Benhabib and David Ingram,62 conceives of the relationship between constitutionalism and democracy as a self-correcting learning process in which an inherent rationality is extracted through a process of immanent critique. At the level of philosophy and reading, this implies a hermeneutic circle of clarifi ca-tion, where the thus explicated universal structures can then function as critical ideals. This difference over the role of philosophy is another way of expressing the difference between Habermasian rational reconstruction and Derridean deconstruction. Habermas’s answer to the question ‘Con-stitutional Democracy—A Paradoxical Union of Contradictory Principles?’ is ‘not necessarily’, and that, in fact, their disunion is more contradictory than their union, which can be shown through a rational reconstruction at the pragmatic level. The Derridean, deconstructive approach, on the other hand, highlights the paradox at the heart of constitutional democracy with-out thereby merely concluding that constitutional democracy is impossible because the paradox is also what makes constitutional democracy possible. So, in my view, philosophy and theory cannot provide answers (even if only procedural answers stipulating how to fi nd answers), but only highlight paradoxes and show the implications of different ways of negotiating those paradoxes.


Constitutional democracy, then, does not work in spite of, but because of undecidability. Habermas’s texts should be read as ultimately failed attempts to reconcile constitutionalism and democracy, and this failure is not accidental but structural. This is not a question of simply being true to or betraying Habermas’s texts. A deconstructive reading cannot simply make the text transparent or neutralize whatever contradictions there may be in the text. For instance, one cannot neutralize the undecidability by referring to it as ‘mistakes’ on the part of the author. Instead, a deconstruc-tive reading is an intervention into the text. The deconstructive reading will be caught in a double bind when, following the conceptual scheme govern-ing the text, it comes upon something which is undecidable according to that scheme. At this point, the reading must both be ‘true’ to the text and displace and, as such, ‘betray’ the text, although not in the sense of betray-ing it in order to be true to it at another and higher level of rationality. The reading does not aim to reveal the real truth of the text, a truth that would dissolve all ambiguities, as if such a truth existed. To be ‘true’ and to dis-place are competing injunctions, each excluding the other, and cannot be reconciled under a single rule for the reading of the text. As a consequence, every deconstructive reading is not only an intervention but also singular.

The constitutivity of undecidability does not mean that nihilism and conservative resignation are our only options. The deconstructive strategy of reading is not guided by a telos of the unity of the text, and a deconstruc-tive politics should not be guided by a telos of reconciliation of constitution-alism and democracy. At the level of political strategy, the deconstruction of constitutional democracy is not its destruction and does not rule out the affi rmation of the values of constitutional democracy (the rule of law, rule by the people, and so on). Both constitutionalism and democracy—indi-vidually or jointly—can be values and principles to be pursued. What is central, however, is how we relate to those principles, and the deconstruc-tive answer is that those are contestable principles just as the nature of rela-tionship between them is contestable. So, the important question is how the principles of constitutionalism and democracy are articulated, individually and together, given their contingency and given the contingency of their mutual relationship. This is the contingency that Habermas cannot entirely rid the practice of constitutional democracy of, and which resists his quasi-teleological account of the history of constitutional democracy. How one can think about the negotiation of constitutionalism and democracy is the subject of the next section, where I examine one deconstructive answer to this question, namely that of Bonnie Honig.

It is the wager of this chapter that approaching constitutional democ-racy in this way, rather than through the Habermasian lens, provides a better defence of constitutional democracy. This defence of constitutional democracy cannot, of course, be a defence of a set of given principles or of a particular articulation of constitutionalism and democracy. What is defended here is, to use Derrida’s phrase, a constitutional democracy to


come: not an ideal for a future constitutional democracy, but the idea that constitutional democracy must put itself in question, continuously asking for the identity and limits of the demos, for the rules of the game, and so forth. Thus, in a sense, the to come refers to the indeterminacy of constitu-tional democracy and its different elements.63 At the same time, however, by emphasizing this aspect of the to come, I am also affi rming a particu-lar response to the ‘impossibility’ of constitutional democracy, a response that is in no way necessary as is evidenced for instance in the alternative standpoint that Habermas takes. If it was possible to distinguish the two things, one could say that, from the ‘description’ of the impossibility of constitutional democracy, no ‘prescriptive’ response follows. Similarly, the argument here is not that the use of ‘fi ctions’ is avoidable, that it is possible to have a society with no closure and no ‘spatialization’. It would be self-contradictory to argue that way given the perspectivist position of decon-struction. So, the structure of to come, which in one sense denotes a certain openness or indeterminacy, may be used against attempts at closure such as Habermas’s use of the fi ction of equality and freedom. Nonetheless, the appeal to a fi ction is also unavoidable, even if not necessarily in this or that particular form. So, the argument here is simply that one must be aware of the implications of particular fi ctions. It becomes a matter of which fi ction and how one relates to it (for instance, which description of constitutional history one is putting forward). Likewise, it becomes a matter of which negotiation of constitutionalism and democracy and how one relates to the negotiation of the two principles. And those are questions that cannot be resolved through rational reconstruction, only through political negotia-tion; or, rather, Habermasian rational reconstruction is only one political negotiation—or construction—among others.

TOWARDS A DECONSTRUCTIVE ALTERNATIVE

What, then, would a deconstructive alternative approach to constitutional democracy look like? This is not the place to present a cookbook for a future deconstructive constitutional democracy, as if such a thing were possible. Nevertheless, it is possible to make some gestures towards an alternative, deconstructive approach to the relationship between constitutionalism and democracy. I will do so by looking at the critique of Habermas by Bonnie Honig, who is drawing upon the work of Derrida.

Despite her deconstructive critique of attempts to spatialize and objectify politics, Bonnie Honig, in a recent critique of Habermas’s co-originality thesis, partially succumbs to the temptation of spatializing the relation-ship between constitutionalism and democracy. Honig argues that we need constitutionalism because it can be an important political instrument. Not only can constitutional rights function as a locus for political struggles, they can also be used in political struggles, even if there is no guarantee


that they will take us in one direction rather than another. In short, there is no reason to leave the fi eld of constitutionalism and rights to the liber-als. However, constitutional ‘[r]ights are not dead instruments, they are live practices’, Honig writes.64 Constitutional rights must remain open to future contestation that cannot be understood in teleological terms, and, according to Honig, the correct relationship between constitutionalism and democracy will depend on the concrete circumstances.65 However, Honig accepts Habermas’s terms of the debate: ‘Habermas’, she writes, ‘rightly resists the choice [between constitutionalism and democracy] and tries to strike the right balance between the two.… But he fails to strike the right balance’.66 She continues,

my sense is that it is not unfair to say that his impulse is to emphasize the importance of constitutionalism to democracy while neglecting to stress equally the importance of democracy—of aconstitutionalism and democratic agency (and not just as a nutritional source, but also as a dangerous supplement)—to constitutionalism.67

Honig criticizes the relative weight given by Habermas to the two prin-ciples of constitutionalism and democracy, but the appeal to ‘the right bal-ance’ between the two principles implies a mediating ground between them, and she suggests that we think of the relationship in terms of a spectrum of more or less: ‘Talk of a contradiction between constitutionalism and democracy, per se, prevents us from developing nuanced analyses of vary-ing situations. Thinking in terms of a constitutional/democracy spectrum rather than in terms of an abstract binary might broaden our vision’.68

The problem is that the different ways of understanding the relationship between constitutionalism and democracy that Honig mentions (and some of which she endorses) all leave intact the concepts of constitutionalism and democracy and presuppose that they are constituted within an objective space: a contradiction presupposes that the two poles of the contradiction are fully constituted; a spectrum and a balance presuppose a mediating third to which both principles can be referred; and so on. In each case, the objectifi cation and, ultimately, the potential reconciliation at a higher level of the relation between constitutionalism and democracy, are still possible. Honig rightly criticizes Habermas for his attempt to reconcile constitution-alism and democracy within a spatial conception of history.69 However, she substitutes the balancing of constitutionalism and democracy for their reconciliation. The attempt to balance is itself spatial because it presup-poses a third mediating point from which to balance constitutionalism and democracy; for instance, a description of the relevant context, a description that would specify the requirements of justice in that particular context.70

In Derrida’s words, there is a ‘structural nonsaturation’ of the context,71

which means that not only are constitutionalism and democracy articu-lated anew in each context, but the contingency of this articulation cannot


be dissolved in an objectifi cation of the context, as if there was a single correct answer for each context.

The relationship between constitutionalism and democracy is marked by undecidability. There is a constitutive gap between constitutionalism and democracy, a slight but infi nite distance that cannot be objectifi ed, and, as a result, the two cannot be reconciled. But one must also avoid the opposite conclusion—equally spatializing—that constitutionalism and democracy can be kept apart or opposed. Their undecidability means that they are not only external but also, and at the same time, internal to one another. As Honig rightly notes, Habermas is wrong to ‘[put] the two principles into a harmonious, non-zero sum relation’.72 Here one need only add that it would be equally mistaken to put them into a simple zero sum relation where one trades one unit of constitutionalism for one unit of democracy. This is also why it does not make sense to speak of more or less, balancing or a spectrum: this presupposes what constitutional democracy is not, namely one-dimensional and calculable. Constitutionalism and democracy cannot be symmetrically opposed, and neither can depoliticization and politiciza-tion, closure and openness.73 Or, we should only speak of ‘balance’ if we by that mean a particular, contingent negotiation of the relationship between constitutionalism and democracy that secures a certain (contingent, and so on) ‘balance’ of the two. And we should only speak of ‘more or less’ as long as we are aware that more is also less, and vice versa. This may be what Honig has in mind when she writes: ‘Sometimes justice may require that we heighten the aconstitutionalism of a regime, sometimes it may lead us to defend the temporary stasis of constitutional settlement’.74 Here I would only add that what ‘justice may require’ is not some external yardstick we can apply to different contexts that are themselves determinable; rather, what ‘justice may require’ is part of what is at stake in our disagreements.

In an earlier work, Honig rightly criticizes Hannah Arendt for depoliti-cizing the constatives supporting her performatives. Honig makes use of Derrida’s deconstruction of Austin’s concept of the performative, where Derrida shows that the performative relies on the citation of a constative for its felicity. The performative—the instituting moment—must posit the constative as already in place. For instance, the Founding Fathers, when performatively bringing the United States of America into existence through the Declaration of Independence had to cite already given ‘facts’ of reason, God, and the independence of the people that the Declaration was supposed to performatively institute.75 This is the basis for Honig’s critique of Arendt’s celebration of the performative moments of political action where people come together to institute a republic. The trouble with Arendt, so Honig argues, is that she does not pay suffi cient attention to the constatives that support the performative political action.76 Yet Honig reproduces the structure of Arendt’s argument, including the hierarchical distinction between performative and constative, when she associates con-stitutionalism with depoliticization and democracy with contestation and


politicization.77 As Alan Keenan rightly argues, Honig oscillates between Arendt and Derrida.78

This is also refl ected in Honig’s critique of Habermas, when she argues that constitutionalism and the courts limit democracy and the will of the people. During the 2000 presidential election, ‘the tension became an all-out fi ght over who would decide the outcome of the American presidential election: the Supreme Court or the people’.79 This leads her to argue that what was needed with regard to the 2000 election was more democracy and less constitutionalism.80 This misses the point, because it overlooks the mutually and simultaneously limiting and enabling relationship between constitutionalism and democracy, and because it overlooks the fact that it is an open question what ‘democracy’ and ‘constitutionalism’ should mean. One may, of course, argue that the rules for counting the votes were too restrictive and, like the majority of the judges on the Supreme Court, biased in favour of one of the candidates. But it is not enough to demand that the votes be counted, because counting the votes (that is, identifying the will of the people) is necessarily mediated by rules stipulating how to count. Even if relatively fi xed, these rules are highly political; in fact, part of what is political about them is the way they have been constructed as given and natural.81 Similarly, although political issues may be depoliticized by refer-ring them to the courts (as has happened, for instance, in the cases of abor-tion and race relations), the courts are at the same time, and especially in the United States, politicized. Hence, the relationship between constitu-tionalism and democracy—and their relationship to depoliticization and politicization—is neither a straightforward competition nor merely a rela-tionship of mutual enablement.

Any politics is partly ‘spatial’, asserting a ground and taking something as given, even if only temporarily. Yet spatialization not only limits open-ness and temporality, it also makes them possible. The politics of consti-tutional democracy cannot proceed as either closure or openness, as either depoliticization or politicization, or as either constitutionalism or democ-racy. There is always a bit of both, contingently articulated together. We therefore need a site of contestation, but paradoxically it must at the same time be a non-site, a site that does not spatialize and frame contestation. Such a site is, by defi nition, impossible, but we may try to create sites that facilitate contestation in one way or another or that facilitate the kind of contestatory politics that we would like. The site must, then, also itself be at stake. The ambition is to think this site as a point where constitutionalism and democracy are articulated; a site or space whose identity is at once dif-ferent from itself and deferred, deterritorialized and temporalized. Honig provides an example of such a site with her reference to the clause in the Canadian constitution ‘that allows provinces to opt out of constitutionally binding decisions for fi ve years’.82 It is not a site that would stop the vicious circularity or infi nite regress of constitutional democracy. On the contrary, without these there would be no constitutional democracy for the future. If


there is a motto for this deconstructive constitutional democratic politics it is this: keep open the gap between constitutionalism and democracy.83

One must, of course, resist the fetishisation of undecidability and apo-ria; they cannot become a new ground. Likewise, the names I have used to shed light on the aporias in Habermas’s texts—iterability, différance, unde-cidability—are ways of accounting for the aporias, but they do not claim to be the last word, nor could they be. Like reading and philosophizing, constitutional democracy is ‘a bizarre, even opaque practice.’84

69

3 The inclusion of the other? Tolerance

INTRODUCTION: THE INCLUSION OF THE OTHER AND THE PARADOX OF TOLERANCE

Is it possible to refashion tolerance to avoid the arbitrariness and pater-nalism often associated with it, and if not, do we have to relinquish it as a central practice of democratic societies? The metaphor of a bouncer, or doorman, at a club is useful in summing up the situation of tolerance and the potential problems with it. Empowered and authorized by the estab-lishment, entry into which he is guarding, and often by outward signs of authority such as a uniform, the doorman evaluates and measures the potential guest. He decides who is allowed across the threshold, through the door, the opening in the boundary of the establishment, and who is not, sometimes arbitrarily (according to his state of mind, for instance), some-times less arbitrarily (according to implicit or explicit rules about cloth-ing or race, for instance). Should the potential guest be allowed into the establishment, she is so at the grace of the doorman, and often he does not waste the opportunity to let her know that this is the case. The entry of the guest is conditional on her acceptance of the sovereignty of the doorman, and those whom he represents, to set the threshold of tolerance. But, of course, the guest is also allowed some sovereignty: her entry may be condi-tional, but she must have some leeway/sovereignty as to how she behaves, for instance how she dances and speaks. In his most recent work, Jürgen Habermas has argued that it is possible to rethink, and thereby save the concept and practice of tolerance and to avoid the problems he identifi es in other conceptions of tolerance and that are evident in the bouncer example. He formulates those problems as a paradox with two aspects.

The fi rst aspect of the paradox of tolerance ‘is that each act of toleration must circumscribe the range of behaviour everybody must accept, thereby drawing a line for what cannot be tolerated.… And as long as this line is drawn in an authoritarian manner, i.e., unilaterally, the stigma of arbitrary exclusion remains inscribed in toleration.’1 There is no tolerance without intolerance; indeed, in some cases, intolerance is what makes tolerance pos-sible. As examples, Habermas gives ‘the Nazi régime’ and ‘the political


ideologist who combats the liberal state’,2 who, if tolerated, would under-mine the tolerant society. In these cases, the condition of possibility of tolerance is intolerance or a limit to tolerance. Habermas is looking for a way to establish this limit in a non-arbitrary and rational fashion, and the solution is deliberative democracy.

The second aspect of the paradox of tolerance concerns the relation-ship between the tolerating and the tolerated parties. Despite the objection requirement that you can only tolerate what you object to, ‘the act of toler-ation retains an element of an act of mercy or of “doing a favor.” One party allows the other a certain amount of deviation from “normality” under one condition: that the tolerated minority does not overstep the “threshold of tolerance.”’3 Traditionally conceived, tolerance involves an asymmetrical, paternalistic relationship between a sovereign party unilaterally bestowing tolerance upon the tolerated party as an act of benevolence (to be toler-ant is also to have the power to be intolerant). Habermas therefore seeks to ground tolerance in the symmetrical relations of public deliberations, which he identifi es through rational reconstruction as seen in the two pre-vious chapters.

The two aspects of the paradox of tolerance—arbitrariness and pater-nalism—arise from the way in which the norms of tolerance are decided and justifi ed. Traditional accounts and practices of tolerance rely on what Habermas refers to as ‘the philosophy of consciousness’ or ‘the philosophy of the subject’, in this case in the form of what Habermas calls a ‘unilateral’ justifi cation of tolerance. As a consequence, the decision to tolerate or not depends on the rationality of a subject, and the tolerated depends on the goodwill of the tolerating subject. The tolerated becomes an object for me or us, the tolerating subject, rather than a partner in dialogue. Habermas’s solution is to situate the question of tolerance within an intersubjectivist phi-losophy. He does so by conceiving the justifi cation of tolerance as a dialogue among those affected by the norms of tolerance; this much also follows from his deliberative account of the rationality and validity of norms.

Other discourse theorists and deliberative democrats—Karl-Otto Apel, James Bohman, Rainer Forst, Amy Gutmann, and Dennis Thompson— have put forward similar arguments.4 Common to them is the idea that a norm is rational if it has been decided through the public use of reason among free and equal citizens so that the addressees of the norm are able to understand themselves simultaneously as its authors. In this way, these authors distinguish themselves from what they see as the problems associ-ated with liberal approaches to tolerance. This is not the place to rehearse the differences between liberal and deliberative approaches.5 However, it is important to understand what Habermas and other deliberative democrats want to avoid in the liberal approach to tolerance in order to see what Habermas is aiming at with his rethink of tolerance, whatever the merits of their critique of the rejected alternative. From a deliberative perspec-tive, the problems with traditional liberal approaches are related to the

The inclusion of the other? Tolerance 71

‘philosophy of consciousness’. First, with the private–public distinction, the relation of tolerance risks becoming a relation of indifference towards the other’s beliefs or actions. These beliefs or actions are consigned to a ‘private’ sphere. What is missing here is an appreciation of the objection requirement. If one is indifferent towards or has a purely positive evalua-tion of an other, tolerance is superfl uous. So, tolerance must be more than indifference. Second, for Habermas and other deliberative democrats, the point of tolerance is not to protect individual or collective identities and interests constituted prior to deliberations about, for instance, the terms of tolerance. Rather, interests and identities are partly constituted in the course of deliberation, including deliberation on the norms of tolerance. Third, deliberative democrats believe that their account of tolerance has the further advantage that it provides an answer to the problem of the justifi cation of the norms of tolerance, which are tested in public delibera-tions among those possibly affected by them. This is the argument we met in a different form in relation to constitutional democracy in the previous chapter: constitutional norms must be mediated by democracy, which must in turn be mediated by constitutionalism, and this mutuality between con-stitutionalism and democracy comes to the fore in the deliberative account of constitutional democracy. Similarly, the norms of tolerance—which also set limits to the exercise of majority democracy—must themselves be medi-ated by democratic will-formation, which must in turn be regulated in such a way as to be inclusive, fair and equal.

The fi rst two deliberative objections to the liberal approach to tolerance point toward a more critical and dynamic approach; the third delibera-tive objection points toward a more modest approach that leaves more to the citizens rather than the philosopher. As my argument will show, how-ever, the differences between Habermas’s deliberative approach and liberal approaches should not be overestimated.

For Habermas, then, the rationality of the norms of tolerance depends on the characteristics of the relations among subjects rather than the charac-teristics of a particular subject. This supposedly solves the paradox of toler-ance: fi rst, the decision to tolerate, and how to tolerate, is not arbitrary but rational; and, second, the relationship between tolerating and tolerated is not hierarchical but based in symmetrical dialogical relations. Habermas writes:

reciprocal religious toleration called for by everyone must rest on uni-versally acceptable limits of tolerance. This consensual delimitation can arise only through the mode of deliberation in which those involved are obliged to engage in mutual perspective-taking. The legitimating power of such a deliberation is generalized and institutionalized only in the process of democratic will-formation.6

While critical of existing conceptions and practices of tolerance, includ-ing liberal ones, Habermas argues it is not only possible but also necessary


to rescue their normative content from a ‘complete deconstruction’. Such a deconstruction, he argues, throws out the baby with the bathwater and leads to the destruction of tolerance.7

The reference is to Derridean deconstruction. Despite the personal and political rapprochement between Habermas and Derrida during the last years of Derrida’s life, considerable differences remain between Haberma-sian critical theory and Derridean deconstruction, for instance in relation to tolerance. I will return to some of these differences in the concluding section of the chapter. In the following, I am not interested in the concept of tolerance as such, if there is such a thing, but in Habermas’s conception of tolerance and in what a deconstructive alternative may be. Inspired by Derrida’s writings on hospitality, I propose to read Habermas’s texts on tolerance in a deconstructive fashion.8 Rather than a simple application of Derrida to Habermas, the deconstructive reading follows Habermas’s conceptual scheme as far as possible, examining the various possibilities he is facing; but it also intervenes at the moment when it encounters an aporia—a non-passage—that remains irresolvable within the Habermasian conceptual scheme. I hope to show that there is a mutual contamination between tolerance and intolerance, where the latter simultaneously makes the former possible and limits it. As a result, the distinction between them cannot be rationalized. In addition, and contra Habermas, tolerance is both made possible and limited by an asymmetry between the tolerating and the tolerated. In short, the concept and practice of tolerance is torn in two different directions simultaneously: towards unconditional tolerance (for example, tolerance is only worth the name if it is tolerance of something I object to or something I cannot fully control) and towards conditional tolerance (for example, because my being tolerant depends on my being in a position—of power or sovereignty—to tolerate). However, as I shall also argue, the non-rationalizability of the threshold of tolerance and the irreducibility of asymmetry does not necessarily result in the rejection of the concept and practice of tolerance. The deconstruction of tolerance is not its destruction.

INCLUSION THROUGH DISTINCTION

Central to Habermas’s conception of tolerance is a distinction between political and ethical societal integration, which makes inclusion and toler-ance possible. It is therefore necessary to examine this distinction—from Between Facts and Norms and The Inclusion of the Other, thus preceding Habermas’s explicit engagement with tolerance—in detail before moving on to his writings on tolerance. Habermas’s answer to what John Rawls refers to as ‘the fact of pluralism’—the persistence, in contemporary soci-eties, of a plurality of ethical conceptions of the good demanding equal respect—may be described as liberal because it rests on a distinction


between the right and the good, between political and ethical reasons.9

This suggests that questions raised about liberal approaches in general also apply to Habermas, most importantly the neutrality (or not) of the tolerat-ing political community vis-à-vis the tolerated ethical subcultures and the equality among the various ethical subcultures.

Habermas seeks ‘a nonlevelling and nonappropriating inclusion of the other in his otherness’, because ‘[c]itizens who share a common political life also are others to one another, and each is entitled to remain an Other’.10

It is with this aim in mind that Habermas makes the distinction between ethical and political integration, which is related, but not reducible to a dis-tinction between moral and ethical aspects of practical questions.11 With regard to the latter distinction, the ethical point of view concerns what is good for me (or us) in the long run, that is, (collective) goals relative to a particular subjective history, tradition, or way of life. The moral point of view, on the contrary, concerns what is equally good for all and, as such, not relative to a particular subject. Moral reasons trump ethical ones, and so the emphasis is on moral and rational self-legislation rather than ethi-cal self-expression. Moral inclusion is egalitarian and potentially universal, and it is possible to reach a rational consensus on moral questions, at least in theory, whereas there is a limit to the public use of ethical reasons, which are always and at least in part, relative to a particular subject, whether an individual or a collective. Ethical reasons are good reasons for me or for us, that is, reasons whose validity are relative to a subject.12 The moral point of view is not neutral, however, and has normative implications because it is internally related to a concept of autonomy as rational self-legislation. Yet, since this concept of autonomy is mediated by the public use of reason—as rational self-legislation—it is not just one (ethical) value among others, but neutral vis-à-vis different ethical values.13

The ethical–moral distinction forms the background for what is, in the context of tolerance, the more important distinction that Habermas makes between ethical and political societal integration, or ethical and political reasons.14 If there is no complete overlap between a political unit and a particular ethical conception of the good—and in today’s pluralist soci-eties there is no reason to believe there is—then it is necessary to distin-guish political inclusion at the level of procedural and legal norms of public deliberation from any substantive notion of the good life (values). This is evident, for instance, in Habermas’s proposal for a ‘constitutional patrio-tism’, that is, the identifi cation with (interpretations of) the principles of constitutional democracy.15

A political community along these lines will not exclude a priori persons with different values or ethical backgrounds. ‘Inclusion’, Habermas writes ‘means that the political community stays open to include citizens of any background without confi ning those Others within the uniformity of a homogeneous national community’.16 Only if the political culture remains distinguished from and neutral vis-à-vis ethical conceptions of the good life,


can the former include different ethical conceptions of the good life with-out disadvantaging some of them, and only then are the relations among different forms of ethical life symmetrical. For instance, the exclusion or inclusion of immigrants and refugees cannot be based on ethical grounds, such as culture, ethnicity, and so on, only on political grounds, and what is demanded of new immigrants is political, not national, acculturation. In the case of Germany, with which Habermas is most preoccupied, he argues that only political and not ethical acculturation can be expected of immigrants. This makes it possible to exclude fundamentalists while avoiding the danger of monoculturalism, he argues: ‘political integration does not extend to fundamentalist immigrant cultures. But neither does it justify compulsory assimilation for the sake of the self-affi rmation of the cultural form of life dominant in the country.’17 This view refl ects very well Habermas’s general apprehension of nationalist discourses. Inclusion at the political level allows for difference and otherness at the ethical level, but the inclusion of the other in her ethical difference is conditional on her acceptance of the ethical–political distinction and on her acceptance of the common political culture: ‘to tolerate…requires a common standard. In the case of a democratic community, this common value base is found in the principles of the constitution’18 and a political culture crystallizing around a constitutional patriotism. Moreover, political reasons ‘out-trump’ ethical ones.19 The ethical–political distinction is, thus, a hierarchical distinction that puts the political at the centre and as a common ground from which the ethical differs.

As already mentioned, the Habermasian, deliberative version of consti-tutional democracy

contains as a doctrinal core the (Rousseauian-Kantian) idea of the self-legislation of voluntarily associated citizens who are both free and equal,… th[is] deontological idea of self-legislation or autonomy is neutral with respect to worldviews, provided that the different inter-pretations of the self and the world are not fundamentalist but are com-patible with the conditions of postmetaphysical thinking (in Rawls’s sense of “not unreasonable” comprehensive worldviews).20

A dogmatic, but rational kernel, and ‘“dogmatic” only in a harmless sense’, because it excludes just those (‘fundamentalist immigrant cultures’, for instance) who do not accept pluralism and the burdens of reason.21

Fundamentalism, according to Habermas, refers to non-self-refl ective ‘rigid forms of life’ aiming at the ‘ultra-stability’ of their identities.22 A fundamentalist worldview does not accept what Habermas refers to as the cognitive limits of life in modern, pluralist societies, namely that, as only one ethical conception of the good among others, it can only claim relative validity and must accept the equality of ethical conceptions of the good; and that, insofar as it is necessary to regulate relations among different


ethical views, this regulation can only be valid when subjected to the public use of reason.23 The fundamentalist rejects the distinction between politi-cal and ethical integration; it is dogmatism with practical consequences, that is, dogmatism supported by force in order to impose it beyond the ethical subgroup.24

Of course, to the thus branded fundamentalist it is Habermas who is paternalistically forcing a particular lifeform upon her particular lifeform from the outside. To her, Habermas is equally guilty of a certain ultra-sta-bility and violent imposition, namely the imposition of the ethical–political distinction. From a Habermasian perspective, the fundamentalist may be said to exclude herself, but the fundamentalist who cannot make the ethi-cal-political distinction will only be able to view this exclusion as if she is being excluded merely for being different. As the fundamentalist herself sees it, she does not seem to have a right to remain other in her ethicality since this right to remain other is conditional on accepting the ethical–political distinction, something she cannot do because it threatens her very existence as a ‘full’ person. The inclusion and equality established by the political culture cannot include her or treat her as an equal.

A good example of a fundamentalist from Habermas’s own texts is some-one who opposes abortion as a right (that is, a woman’s right to choose) and believes that abortion should be illegal. This fundamentalist does not accept that her view on abortion is relative to an ethical way of life and must be limited by the pluralism of ethical points of view on abortion. Although the right to remain other is conditional upon acceptance of the ethical–political distinction, for Habermas, it is a harmless and rational conditionality as long as it refl ects universal and rationally reconstructable structures of autonomy and equality. For instance, Habermas writes that, if it turns out that the question of abortion cannot be dissociated from particular ethical views, and it is therefore not a moral question, then that would merely raise the political question of how to order the co-existence of different ethical views in the equal interest of all.25 However, thinking about abortion according to this distinction between ethical and political is precisely what the anti-abortionist cannot do. For her, it is not a question of political procedure but of divine revelation transcending any ethical–political distinction, and she may see abortion as murder; that is, as a moral wrong that should be recognized in the law. It is therefore necessary to ask whether Habermas is able to uphold the ethical–political distinction.

BLURRING THE DISTINCTION

‘Ideally’, Habermas writes, ‘legal rules, too [like moral rules], regulate a matter in the equal interest of all those affected and to that extent give expression to generalizable interests.’26 Yet, Habermas admits that the facticity and positivity of a legal rule—its genesis in a particular society


and the fact that, since it has only been validated by (some of) the mem-bers of that society, it can only claim relative, but not universal validity— means that the validation of the legal rule is marked by the conditionality of an ethical perspective: ‘the facticity of the existing context cannot be eliminated. … On account of this relation to the de facto substratum of a legal community’s will, a volitional moment enters into the normative validity dimension—and not just into the socially binding character—of legal norms.’27 As a result, the law retains a non-rationalizable ‘volitional moment’ that cannot be dissolved or rationalized in the networks of inter-subjective deliberations, and ‘even the rationally grounded political will retains a certain contingency insofar as it rests on context-dependent rea-sons’.28 Political integration cannot be entirely abstract and distinct from ethical conditionality or from subjectivity, thus undermining the arguably hierarchical distinction between political and ethical integration.

Although each political order supposedly interprets the same set of uni-versal and rationally reconstructable rights, ‘[l]egal orders as wholes are also “ethically imbued” in that they interpret the universalistic content of the same constitutional principles in different ways, namely, against the background of the experiences that make up a national history and in light of a historically prevailing tradition, culture and form of life.’29 Hence, legal rules are split between the right and the good, between a universal and a particular content. However, the ethical impregnation of the political ‘cannot detract from the legal system’s neutrality vis-à-vis communities that are ethically integrated at a subpolitical level.… It is crucial to maintain the distinction between the two levels of integration’, thus upholding the hier-archical character of the distinction. This account of the inclusion of the other in no way forbids the citizens of a democratic constitutional state to assert a conception of the good in their general legal order, a conception they already share or have come to agree on through political discussion. It does, however, forbid them to privilege one form of life at the expense of others within the nation.30

On the one hand, on the other hand: upholding the ethical–political distinction and blurring it.

On the one hand, when upholding the ethical–political distinction, Habermas risks reifying it, positing it as a norm prior to the public delib-erations of the citizens who were supposed to determine the norms to which they are subject. (This is related to the division and ambiguity within Habermas’s philosophy between rational reconstruction and practical dis-course that we encountered in the fi rst chapter.) This pulls him towards tol-erating challenges to the ethical–political distinction and in the direction of unconditional inclusion, thus including constituencies on an equal footing. On the other hand, tolerating challenges to the ethical–political distinction also puts the equality among the ethical subcultures in danger because a particular—‘fundamentalist’—ethical subculture may occupy the political level so that it is no longer one ethical subgroup among equals and in this


manner excludes other ethical subgroups from equal treatment. Habermas is therefore pulled in the direction of inclusion on the condition that you accept the ethical–political distinction and the common political culture, that is, on the condition that the ethical–political distinction is fi xed.

On the one hand, if the citizens were able to determine the constitutional principles all the way down, so to speak, because it is up to those possibly affected by the norms to decide them, the principles potentially multiply indefi nitely, and you risk letting in those who would interpret the principles in excluding and ‘fundamentalist’ ways. So Habermas is pulled towards conditional inclusion, towards positing certain principles as universal, unavoidable and always-already presupposed, so that they are ‘not…lost in the spectrum of these different interpretations’.31 The conditionality is expressed as a hierarchical distinction between constitutional principles and interpretations of the principles—expressed for instance in the notion of constitutional patriotism—where the former sets the limits for the latter, thereby creating a space within which differences in interpretation are tol-erated. But, on the other hand, when fi xing the principles, he runs the risk of reifying them, and this pulls him back from conditionality.

On the one hand, on the other hand. However, it would be wrong to read Habermas’s texts simply as ambiguous or self-contradictory, as if what was lacking was the attention of the author or more rational principles and foundations. Inclusion and exclusion, equality and hierarchy, and uncon-ditionality and conditionality are not simply opposed options, because the latter of each pair simultaneously limits and makes possible the former. Unconditional inclusion and openness require that we condition them in order to secure them; exclusion and conditionality help constitute a space of inclusion and equality. Inclusion or equality would be nothing without exclusion and inequality. ‘There can be no inclusion without exclusion’, Habermas writes, and he makes reference to the self-destructive inclusion of the Nazis in Germany in the late 1920s and early 1930s.32 The exclusions and conditioning are made in the name of inclusion and unconditionality, however. As a result, exclusion and conditionality are not only implicated in, thereby contaminating, inclusion and unconditionality; there is also a contamination in the opposite direction. Since the exclusion and conditions are here made in the name of inclusion, equality, and unconditionality, these exclusions open themselves to contestation at the very moment they are posited as necessary for inclusion and tolerance.

There is a decisive difference here between Habermas’s critical theory and the deconstructive approach, though. For neither Habermas nor Der-rida, the ‘necessity of self-assertion’33 on the part of the democratic and open, tolerant society simply destroys it. Yet, according to Habermas, we are dealing with a ‘strange dialectic of the self-assertion of a “militant” democracy that is “prepared to defend itself”’.34 Habermas’s prime exam-ple of a case where this did not happen is the way the Nazis gained power in Weimar Germany. He believes that, in such a situation, constitutional


democracy should not tolerate those who seek to overturn it. Although the justifi cation for this can obviously only be self-referential (hence ‘selfas-sertion’), it is not self-contradictory insofar as constitutional democracy has been justifi ed as a fair regime. For Habermas, the ‘strange dialectic’, or ‘paradox’, can be rationally resolved. Derrida uses the term ‘autoimmu-nity’35 to refer to the same problem, but, for him, democracy is, to use an expression from another context,36 at war with itself when it tries to defend itself. While also mentioning the example of Nazism, Derrida develops this point in a discussion of the 1992 parliamentary elections in Algeria, which the government and military cancelled when it was widely expected that the Islamic Salvation Front (FIS), which had promised to get rid of democracy, would win the election. What they did was ‘to suspend, at least provision-ally, democracy for its own good, so as to take care of it, so as to immunize it against a much worse and very likely assault. By defi nition, the value of this strategy can never be either confi rmed or confuted’ because it is impos-sible to know with certainty what would otherwise have happened.37

Unlike Habermas, Derrida thus believes that the suspension of democ-racy in the name of democracy cannot be rationalized. This relates to questions surrounding democracy to which I return in the fi nal chapter. Suffi ce it here to note the following. Derrida distinguishes himself from two alternative positions: fi rst, the Habermasian position that holds that it is possible to rationally identify, through rational reconstruction or practi-cal discourse, a set of procedures that defi ne democracy and in the name of which democracy can be defended; and, second, the communitarian posi-tion where the national community is conceived on the model of an bio-logical organism with a ‘threshold of tolerance’ that is justifi ed as a natural immune system.38 Derrida’s position stems from his view that democracy is marked by a lack of defi nition because it is an inherently open concept and practice, where part of it consists in asking how it should be defi ned and where its limits should be drawn. This gives rise to the following question:

Who, then, can take it upon him- or herself, and with what means, to speak from one side or another of this front, of democracy itself, of authentic democracy properly speaking, when it is precisely the con-cept of democracy itself, in its univocal and proper meaning, that is presently and forever lacking?39

If the defi nition and limits of democracy cannot be settled, not because of practical obstacles or disagreement here and now, but because it is lacking a defi nition as such, then someone must speak for and represent democracy. Disagreements over what democracy is and should mean are inherent, but only some will be able to speak in the name of democracy. This obviously implies potential exclusion and vanguardism. With regard to tolerance, it means that the threshold of tolerance—for instance what level of antidemocratic practices the democratic society will accept—can-


not be rationalized, but is a matter of political negotiation. Moreover, the defence of democracy and, by extension, inclusion and tolerance is only possible in ways that simultaneously limit democracy, inclusion, and tol-erance, and this is the aporia. The defence of democracy is only possible insofar as someone has defi ned what it is, thereby limiting what was sup-posed to be essential to it, namely its openness. Importantly, the aporia is not simply a choice between either inclusion or exclusion, even if it is also that because exclusion obviously limits inclusion. As Derrida writes, ‘exclu-sion and inclusion are inseparable in the same moment’.40 It is simultane-ously a question of both inclusion and exclusion, because exclusion is the condition of possibility of inclusion. We might add that it is not simply a matter of more or less inclusion or exclusion, because more exclusion, for instance, both limits and conditions inclusion thereby creating both more and less inclusion. This is the structure of the aporia: both either/or and both/and, and this is why it is an aporia in the sense of a ‘non-passage’. To use a deconstructive phrase, the condition of possibility of inclusion and tolerance is simultaneously their limit. The aporia cannot be dissolved in a rational principle or ground, for instance rational deliberations or a ratio-nal consensus, and it thus goes beyond a mutual contamination between inclusion and exclusion.

In the following, I will show how a similar aporia marks Habermas’s conception of tolerance. I shall examine in turn his attempts to dissolve the paradoxes of the arbitrariness of the threshold of tolerance and the pater-nalistic relation between the tolerating and the tolerated.

THE THRESHOLD OF TOLERANCE

Habermas’s answer to the problem of how to decide the threshold of toler-ance and how to relate to the limit of the tolerant society is deliberative democracy. Through the rational self-legislation of the citizens, the political community engages in a process of critical self-refl ection where the ‘self’— the ‘subject’ of the democratic community—is dispersed in intersubjective relations of deliberation. Thus, Habermas argues that those affected by the norms of tolerance—including the threshold of tolerance—must also agree to them, although he is not explicit as to who has to enter into dialogue and potentially agree.41 If there were only deliberations among those on the inside, then deliberation would add nothing to the justifi cation of the norms of tolerance. If, on the other hand, the threshold of tolerance were subjected to deliberation among those affected by it, this would include in the deliberations those who, according to Habermas, cannot be toler-ated: discriminatory and fundamentalist discourses that reject ‘the prin-ciple of equal treatment of all citizens’.42 The deliberations would include those who are intolerant of others and of tolerance, thereby undermin-ing tolerance. Their inclusion into the deliberations would undermine the


terms that make the deliberations rational, among other things equality and mutual respect. In addition, it is diffi cult to believe that these constitu-encies would agree, through the deliberations, not to be tolerated, or that they would exclude themselves. The unconditional inclusion into the justi-fi catory deliberations on the norms and threshold of tolerance undermines the possibility of rational justifi cation.

Not only does tolerance require intolerance; the justifi cation of the limit between tolerance and intolerance requires certain conditions and exclu-sions—that is, intolerance—to be set down in advance and beyond the reach of the justifi catory discourse. These conditions are simultaneously the conditions of possibility and the limits of the rational justifi cation of norms of tolerance. The conditions must be prior to the justifi cation of the tolerance/intolerance distinction and prior to the specifi cation of what ‘tolerance’ and ‘intolerance’ mean in the fi rst place. In short, the threshold of tolerance is both the outcome of the deliberations and posited prior to them. Either one opens up for disputes over the threshold and conditions of tolerance, thus risking undermining the possibility of tolerance; or else a philosopher, a subject in the know (Habermas, for instance) rationally reconstructs those conditions and hands them down to the deliberating citizens. Both solutions are problematic for Habermas, though. The former because it leaves us without a rationally determinable answer; the latter because it takes us too close to the paternalistic dangers of the philosophy of the subject.

Another solution to the problem of the self-refl ective determination of the threshold of tolerance by the tolerant society is suggested by Haber-mas when he writes that ‘[o]f course, these limits [‘of what every one is allowed to do and to pursue’] themselves are often up for discussion, at which point the courts decide who must accept whose ethos—the majority that of the minority, or vice versa.’43 Yet, this merely pushes the problem of the rationality of the limits of inclusion onto the character of the court decision. From a deliberative perspective, this does not make things any easier because the decision is then at best only very indirectly rooted in public deliberations.

The problems with rationally establishing the limit of tolerance also become clear if we ask why tolerance is necessary in the fi rst place. For Habermas, tolerance serves to include the other as an equal citizen among others. Thus, tolerance ameliorates a lack. Supposedly, tolerance adds to the equality of the public deliberations among equal citizens, that is, toler-ance is necessary because some citizens are not included as equals through other procedures. At the same time, however, the norms of tolerance are supposed to be grounded in those very deliberations that are insuffi cient for the inclusion of the other. The imperfectness that tolerance is supposed to ameliorate also undermines the possibility of a rational justifi cation of the norms of tolerance. Tolerance must add something to the public delibera-


tions, which are lacking. Yet, as a result, the public deliberations cannot support the rationalization of tolerance.44

Habermas’s deliberative conception of tolerance is caught in the problems of the philosophy of the subject. Although tolerance involves some (self-) refl ection on the limits of the democratic polity, it still carries an element of unilateralism in determining the threshold of tolerance. The one-sided-ness potentially makes tolerance and the justifi cation of tolerance superfl u-ous (if they merely reproduce already existing limits and norms), but going beyond the one-sidedness risks undermining the rational foundations of the justifi cation of the threshold of tolerance, namely the procedures of public deliberation (if it means including those who would overturn those procedures).

TOLERANCE, EQUALITY AND INEQUALITY

Habermas notes the historical distinction between toleration and toler-ance. Toleration refers to the asymmetrical and juridical relation between the state and one or more minorities, and tolerance refers to a relation among constituencies or individuals placed at the same level.45 Although Habermas keeps referring to a relation between the (secular) state and a (religious) minority, he believes that his deliberative account of this rela-tion renders it one of equality rather than hierarchy, tolerance rather than toleration, because the law is rooted in symmetrical public deliberations. However, as I will argue in this section, an element of inequality between the tolerating and the tolerated parties nonetheless remains in Habermas’s conception of tolerance.

In Habermas, the distinction between ethical and political is a hierarchi-cal one, and tolerance is conditional on acceptance of the ethical–political distinction. For Habermas, religion provides a privileged example of ethical worldviews and tolerance to the extent that sometimes the ethical–politi-cal and religious–secular distinctions collapse into one.46 He thinks of the development of society in this regard as a progression from pre-modern (religious) societies to modern, secular societies, and fi nally, to ‘post-secu-lar’ societies.47 In more than one place he talks about the relativization of the ethical (and religious) vis-à-vis the political (and secular) as a ‘learning process’, which is reminiscent of his use of Piaget’s and Kohlberg’s theories of developmental psychology, where the subject goes through progressive stages of moral development.48 Post-secular societies recognize that reli-gions are here to stay, but, importantly, only as one or more ethical world-views among others and within a secular society. The post-secular stage therefore does not overturn secularism, but presupposes it. Like other ethi-cal differences, religious differences are tolerated as just that: as religious (ethical) differences within a shared secular (political) order.


To be tolerated, the religious subgroups have to become refl exive, that is, accept that their validity claims are limited by scientifi c knowledge and by the secular state, and that they share the social space with a plurality of other religions.49 Habermas refers to ‘religious groups who adapt their doc-trines and forms of life … to the secularization of state and society’.50 This adaptation takes the following form.51 The (ethical or religious) tolerated must relativize her claims so that they are only ethical, and not political claims to be enforced across society as a whole. This effectively amounts to a privatization of the individual’s or group’s ethical and religious differ-ence. The way it takes place is through ‘translation’: religious reasons must be translated into the terms of secular, political society. They must be so if they are to count as reasons for others than the believers of the religion in question, and if they are to have any (legitimate) place in the common political life of society. More generally, the particular languages of ethical worldviews are not excluded from the public sphere; only persons holding or running for public offi ce must refrain from using religious reasons.52 Thus, to count within the political system, religious reasons must fi rst be translated into ‘a language, which is equally accessible to all citizens’, that is, a ‘political’ language; Habermas refers to this as the ‘“institutional translation proviso”’.53 Such a shared, public language is a necessity in order to shift from a fi rstperson perspective to an intersubjectivist perspec-tive, where my reasons can also be your reasons. While allowed to count, religious reasons are not allowed to count when it really counts, namely in the institutional fora of lawmaking. The onus is on the ethical–religious constituencies to adapt to a society within which they are tolerated (this is qualifi ed somewhat by Habermas—I return to this below). Even though Habermas believes that tolerance must hurt in order to be worth the name, the pain should not cut too deep. The differences to be tolerated are ethical differences, not differences over, for instance, the ethical–political distinc-tion itself. That distinction may be rationally determined, according to Habermas, but ethical disputes cannot be so because they remain tied to subjective perspectives and can therefore not be completely subjected to the force of the good argument in public deliberation. Their non-rationaliz-ability, however, makes their tolerance necessary.

The norms of tolerance must be the outcome of deliberative processes of reasoning, but the only reasons that can be good reasons for more than one subgroup are political reasons because these are not subject-relative rea-sons. However, fi rst through the process of deliberation and later through the process of tolerating ethical and religious differences, the latter are not only tolerated but also—and thereby—marginalized. They are so because a hierarchical distinction puts the political and the secular at the very cen-tre (and as a fundament) and provincializes the ethical and the religious.54 Tolerance decentres and centres; it both creates an inclusive space and binds the ethical differences in a hierarchical relationship to the political commu-nity. Tolerance both asserts a ‘self’ of the political community against what


is external or marginal to it and opens up the political community. Haber-mas himself recognizes the problem. While he wants to put religious and non-religious worldviews on a par, he acknowledges that ‘the costs result-ing from tolerance are not distributed symmetrically between believers and unbelievers alike’.55 Even if non-religious constituencies are supposed to be open and to facilitate the translation, the translation is one-way: from religious and ethical reasons to secular and political reasons. The unequal burdens are, for instance, those put on citizens opposed to abortion living in a society with a liberal abortion policy.56

Habermas himself addresses the potential asymmetry between believers and non-believers in the following way: ‘Within this liberal framework, what interests me is the unanswered question whether the revised concept of citizenship that I have proposed in fact imposes an asymmetrical burden on religious traditions and religious communities after all.’57 His answer to this question is no. The fi rst reason is that the relationship between religious and non-religious constituencies has to be one of dialogue and cooperation, where the latter help the former translate their claims into public, politi-cal terms. Secondly, the secularist is facing a burden of her own because she must relativize secularism. Secularists cannot retreat to the comfort of secularism and of tolerance qua indifference, but ‘must grasp their confl ict with religious opinions as a reasonably expected disagreement’.58 That is, the secularist must accept that religious reasons may, under scrutiny, turn out to be good reasons. There seems to be some truth in Habermas’s asser-tion that this constitutes a burden on the part of the secularist; the atheist secularist may certainly fi nd it diffi cult not to discount religious reasons a priori. Nonetheless, it is also clear that, for Habermas, non-believers do not have to accept religious reasons as religious reasons, only as potentially good moral or political reasons. In other words, to be good reasons, reli-gious reasons must fi rst be translated into a common, political language whose priority the religious constituencies must accept. This swings the argument back towards the dominant, ‘rationalist’ reading of Habermas.

At this point, Habermas addresses an important potential objection to his own argument. If there is no absolute hierarchy between political and religious reasons (because they must enter into dialogue, even if it is a biased dialogue), and if the secular state can therefore not establish itself as the necessary outcome of a rational learning process that religious com-munities have not yet gone through, then the following question arises: ‘From what perspective may we claim that the fragmentation of a political community, if it is caused by a collision of fundamentalist and secular-ist camps, can be traced back to “learning defi cits” [on the part of the ‘fundamentalist’ camp]?’59 In other words, if the rationality of religious reasons cannot be ruled out, how can we dismiss those, who persist with religious reasons where they ought to translate those into political reasons? Habermas’s answer is that this is an open question: ‘political theorists must accept that a normatively justifi ed concept such as “the public use


of reason” may for good reasons remain “essentially contested” among citizens themselves’.60 Whatever normative distinctions Habermas the phi-losopher may come up with, they remain essentially contestable from the perspective of those citizens without whose agreement the distinctions risk being paternalistically imposed. In other words, what remains essentially contestable is what counts as a ‘religious’ and as a ‘political’ reason. If that is the case—if something like a rational reconstruction of or a rational consensus on this distinction is never possible—then the political–religious distinction cannot be rationalized, whether in the present or in some future present. If anything, that distinction—and with it the meaning of tolerance and democracy—remains to come, something our theorization of tolerance and democracy must take into consideration. Thus, although the dominant reading of Habermas centres around the hierarchical distinction between ethical and political, religious and secular, his texts also contain another argument, which cannot be entirely dissociated from the dominant one, and which points in a different direction.

Before returning to this below and in the fi nal chapter of the book, how-ever, let us return to the relationship of tolerance to equality and inequal-ity. The equality among different ethical or religious worldviews depends on, is conditioned by, the hierarchical ethical/political and religious/secular distinctions. Indeed, the deliberations in which the norms and conditions of tolerance are decided take as their point of departure the acceptance of these fundamental terms. Tolerance, qua Habermas, then, involves two relations at the same time: fi rst, between the political community and the ethical subgroups (‘toleration’) and, second, between different ethical subgroups (‘tolerance’). Importantly, the former relation, which is asym-metrical, helps constitute the latter relation of equality among ethical dif-ferences. It is only in relation to, and relative to, the political that the ethical subgroups are equal and can engage in symmetrical deliberations. In this sense the hierarchical ethical-political relation is constitutive of the non-hierarchical relations among ethical subgroups. To paraphrase Habermas, there is no equality without inequality. The ethical views are tolerable on the condition that they accept the primacy of the political (and the primacy of secularism in the case of religious subgroups), and that they relativize their claims accordingly.

However, this suggests an aporia similar to the one discussed above in the context of the ethical/political distinction. If the arrangement is biased in advance against religious constituencies and reasons, it cannot be in the equal interest of all, and religious constituencies would, supposedly, accept neither the terms of the deliberations nor the norms of tolerance that are the outcomes of the deliberations. It is diffi cult to see that such deliber-ations would in fact add anything to the justifi cation of the norms and would not merely be self-congratulatory. If, on the other hand, what counts as a reason is not settled in advance and every reason has equal weight, a ‘post-secular’ outcome would not be guaranteed. To be sure, the delibera-


tions are conditioned to make them open and equal, but they are also, and thereby, closed off and asymmetrical. It is not a question of either/or: either equality or inequality; nor does it seem possible to fi nd a rational balance between the two, because—as we also saw above—part of what needs to be reasoned about is what counts as a reason in the fi rst place. Or, to put it in terms of in/equality: part of the issue is what in/equalities are the condi-tions of possibility of what we would take to be a rational justifi cation for tolerance.61

We can add to these points by considering briefl y Habermas’s notion of religious reasons. According to Habermas, religious validity claims are similar to ethical claims, although the former contain a strong element of faith that cannot and need not be exposed to the public use of reason, whereas the latter are already to a great extent discursively mediated in a modern society. My critique of Habermas is not simply that he excludes religious reasons or marginalizes them, but rather that he does not rec-ognize that the way to include them on an equal footing is necessarily biased. With Derrida, we can think of faith as distinguished from dogma and theory (for instance, in the form of the identifi cation of distinctions and procedures à la Habermas). Thus conceived, faith is what is involved in the relation to the other, which is not only a relation to a concrete other but also to an other beyond identifi cation, an ‘arrivant’, one whose coming cannot be anticipated because that anticipation would already involve the determination of the other. This relationship to the other as arrivant is at the heart of any relation to an other, any intersubjective relation. Follow-ing Derrida, we may say that any relation to an other entails a ‘yes’, an unconditional openness or hospitality. This ‘yes’ to the other is one that, for Derrida, is a response to the other and as such does not proceed from a sovereign subject; the other does not become an object for me. It is easy to see some similarities with Habermas’s assertion from Knowledge and Human Interest, quoted at the beginning of chapter 1: ‘Our fi rst sentence expresses unequivocally the intention of universal and unconstrained con-sensus’. Yet, for Derrida, the ‘yes’ to the other cannot stand alone; there must be a ‘yes’ to the ‘yes’, an affi rmation of the relation to the other, and that second ‘yes’ is necessarily cast in a particular language.62 As such, the second ‘yes’ makes possible the fi rst ‘yes’ by ensuring that it becomes effec-tive, yet it also limits it. It is a ‘yes’ to the ‘yes’, thus in a sense true to the fi rst ‘yes’, yet also necessarily betraying it. My relation to the other immedi-ately becomes a question of language: whose language? Whose idiom? The other, for instance the religious other, only has a voice within a ‘common’ language, which is never completely shared. In this way, on the deconstruc-tive view, we are always dealing with the question of language, and that question is always one of ‘whose language?’, ‘whose terms?’, ‘whose rea-son?, and so on.63 Put differently, any language simultaneously opens and closes the relation to the other. It is not surprising, then, that Derrida links the question of hospitality to translation: the translation lets the other have


a voice within our language, yet that voice is no longer simply that of the other but becomes dependent on its being welcomed into our language.

To return to the question of equality—the equality of the relation to the other within language, for instance—in the case of equality and inequal-ity, tolerance and intolerance, the relationship between the two sides of the pairs is not simply one of either/or as if they constituted two poles between which one had to choose. Nor is it simply one of more or less as if it were merely a matter of balancing the two or striking the right point on a con-tinuum. Rather, the relationship between equality and inequality, and so on, is aporetic: both either/or and both/and. Either equality or inequality, for instance, but simultaneously both equality and inequality. Inequality makes possible and limits equality; and inequality in the name of equal-ity exposes itself to contestation in the name of equality. The condition of possibility of tolerance is simultaneously its limit, and this structure also marks Habermas’s conception of tolerance. The attempt to ground tolerance in rational discourse and consensus is in vain. Habermas cannot avoid an element of ‘unilateralism’ because the justifi cation for tolerance is marked by ‘arbitrary’, as opposed to rational, exclusions from discourse and by inequalities within discourse. What we have are different political negotiations of these conditions (norms, distinctions, and so on), negotia-tions that are unstable and do not resolve the aporia. Habermas’s concep-tion of tolerance is one such negotiation. At times, Habermas acknowledges the impossibility of fully ridding tolerance of arbitrariness and inequality. However, accepting the ineradicability of the aporias of tolerance, I believe, should lead to a rethink of tolerance where the aporia—and arbitrariness and inequality—are accepted as essential parts of an approach to tolerance. Indeed, with Derrida, we might say that there is a close link between aporia and tolerance (and, I would add, deconstruction), because both are charac-terized by a certain non-passage, albeit a productive non-passage.64 What remains is to discuss whether the deconstruction of Habermas’s concep-tion of tolerance and the deconstructive alternative imply the destruction of tolerance.

THE DESTRUCTION OF TOLERANCE OR A DECONSTRUCTIVE TOLERANCE?

Habermas is unable to solve—dissolve and resolve—the aporia at the heart of his conception of tolerance. However, contra Habermas, the deconstruc-tion of tolerance does not entail its destruction. The deconstructive reading of Habermas neither reduces tolerance to the expression and reproduction of existing relations of domination, as if tolerance made no difference, nor does it relativize everything. It is not an argument against tolerance, but an ‘analysis’ of the conditions of possibility and impossibility of the Haber-masian, deliberative conception of tolerance. Such an argument, there-


fore, cannot be opposed to tolerance. Starting from the deconstruction of Habermas and drawing on Derrida and other deconstructive sources, I will now articulate the contours of a deconstructive approach to tolerance. This can only be a sketch, since, as I shall also argue, from the deconstruc-tive perspective, the response to issues of tolerance is a matter of political negotiation.

That we are dealing with an aporia suggests that there is an ineliminable element of judgment and decision. The aporia precisely denotes a point in the conceptual system where the conceptuality of the system is exhausted and an intervention is required, an intervention that cannot simply follow a rule. Following Derrida’s deconstruction of the concept of hospitality, we may say that tolerance cannot be the subject of knowledge.65 Of course, we have some knowledge about conceptions and practices of tolerance; like-wise, I am not arguing that we should not seek as much knowledge of these things as possible (which possibilities do we face? which dangers? and so forth). What I mean is rather that there is necessarily something about tolerance that eludes knowledge. We can see this by going back to the split within tolerance between unconditional and conditional tolerance. Toler-ance must be conditioned, limit itself, thereby being essentially perverted. But, if that is the case, then we can never know what unconditional and unlimited tolerance is, what tolerance ‘really’ is. There is only tolerance here and now, articulated in a particular idiom, in particular terms. Hence why Derrida writes that hospitality—and, by extension, I would argue, tolerance—is marked by the structure of autoimmunity: it is necessarily self-destructive, self-perverting. And for the same reason, Derrida suggests that we do not examine an ahistorical, naturalized concept of hospitality, but the history of the articulation between unconditional and conditional hospitality, or the history of the perversion of unconditional tolerance by conditionality.66 In this sense, tolerance is to come: it can never be realized in its purity, as unconditional tolerance. As such, tolerance is necessar-ily inventive; it must invent its own law because there can be no law, no regulative idea or critical ideal, expressing what tolerance is and which we can follow. (To say that tolerance is invention is not to dissolve the aporia at the heart of tolerance; invention, too, is aporetic, because in order to be recognized as ‘invention’ it cannot be inventive, but must conform to some established meaning of the concept of invention.) Tolerance must be invented and negotiated anew in each case—also because of the singularity of the other, who again and again eludes inclusion in her otherness. Finally, without a law of tolerance, we are forced to take responsibility, that is, not simply follow a rule (concept, law, programme, and so on) of tolerance, but invent it as we go along responding to the other. The responsibility for tolerance cannot be referred to a rule; nor, however, can responsibility be exhausted by a subject, the subject showing tolerance, because that subject is itself put into question. I return at more length to the question of respon-sibility in the fi nal chapter of the book.


Moreover, as I have argued above, there is an element of inequality and exclusion in tolerance and its justifi cation, and, hence, tolerance is also a matter of power. Thus, tolerance is a matter of what Stanley Fish has called ‘politics’, which he opposes to ‘theory’, which is the kind of endeavour Habermas is engaged in: the search for a disinterested, universal, or prin-cipled perspective and foundation. That the negotiation of the aporia of tol-erance is a matter of ‘politics’ rather than ‘theory’ means, Fish writes, ‘that it cannot be a criticism of a political theory or of the regime it entails that it is unfair. Of course it is. The only real question is whether the unfairness is the one we want. The only real question, in short, is a political one.’67 To speak of ‘rational reconstruction’ as Habermas does is to suppress the element of construction in what are different political negotiations of the aporia of tolerance; and it will tend to blind us from looking for exclusions, relations of domination and power, and so on.

We should not think that as long as we acknowledge the inherent limits of tolerance, we will somehow be able to avoid their exclusionary effects. In other words, that as long as we recognize that the other is really other, we will be able to take account of that in our inclusion of her and avoid violating her otherness. Fish rightly warns against this ‘lure of critical self-consciousness’.68 The danger is to think of deconstruction as simply a better and more thoroughly self-refl ective approach that succeeds in includ-ing the other in her otherness. Unlike Habermas, from a deconstructive perspective, the inclusion—and tolerance—of the other in her otherness is ultimately impossible. She cannot be included or tolerated and remain wholly other. Derrida writes: ‘pure ethics, if there is any, begins with the respectable dignity of the other as the absolute unlike, recognized as non-recognizable, indeed as unrecognizable, beyond all knowledge, all cogni-tion and all recognition’.69 The qualifi cation ‘if there is any’ is important: the ‘pure’, unconditional ethics is always articulated together with and through a certain conditionality. Hence, there is no ‘pure ethics’ and no pure tolerance or inclusion of the other. Also, its condition of possibility, the aporia at the heart of tolerance, also makes it impossible because of the element of impassibility. A deconstructive approach to tolerance, then, will not be able to avoid exclusion or asymmetry—at most, it can approach these differently.

Nor can the aporia be avoided by leaving tolerance behind and instead opt for a different concept, for instance, hospitality. In one place, Derrida at fi rst seems to be doing exactly that. He stages an opposition between tol-erance, always conditional and implicated in relations of domination, and an unconditional hospitality capable of including the other in her other-ness. But, moving to the concept of hospitality, he then fi nds that hospital-ity is itself simultaneously unconditional and conditional.70 Tolerance and hospitality are marked by the same aporia.

Similarly, it would not help us to move from tolerance to recognition. In Bound by Recognition, Patchen Markell identifi es an aporia at the heart of


the concept and practice of recognition not dissimilar to the one identifi ed here in relation to tolerance.71 To be recognized is to be ‘bound by recogni-tion’ in two ways. First, to be recognized one must be determined as this or that, as belonging to a particular group, with a particular identity, in need of recognition. Thus, the recognized becomes bound by the ascribed identity. Second, in order for recognition to work, the recognizer must be in a position to recognize, and the recognized must accept (recognize!) the recognizer’s privileged position. For instance, the recognized must recog-nize the state as the sovereign institution that is capable of bestowing rec-ognition upon individuals and groups within a certain territory. In this way, recognition also (re)produces the sovereignty of the recognizer. The recognized is never completely determined or subjected, though, because the recognizer also depends on the recognition of the recognized that the recognizer is sovereign and capable of recognizing. Hence, the recognizer, too, is bound by recognition. Markell proposes to substitute ‘acknowledge-ment’ for recognition. Acknowledgement would seek to show the contin-gency of identities and sovereignty and to facilitate the rearticulation of current practices. In this respect, Markell writes that ‘what is needed is precisely to think about democratic power and action outside the frame of sovereignty’,72 with which I would agree insofar as it does not imply going beyond sovereignty but disrupting traditional accounts of sovereignty. Markell continues, in an Arendtian vein: ‘Such a vision of democratic poli-tics does not promise the pleasure of sovereignty, direct or vicarious; it promises, at best, the less grand and more tentative pleasure of potency—of simply having (and being carried along by) effects in the world, without necessarily being able to determine their trajectory’.73 Again, I would not simply oppose this position, but insist that ‘potency’ does not escape a cer-tain ‘pleasure’, or perhaps desire, of sovereignty and, with it, the essential risks identifi ed in tolerance and recognition. An interesting line of argument to pursue as a response to this condition is proposed by Markell, when he writes: ‘A more modest hope for a non-sovereign practice of democracy, then, might lie in the multiplication and diffusion of the sites around which struggles for recognition are carried out’.74 In other words, if it is impos-sible to solve the tension between unconditional and conditional tolerance, one would need to focus on, among other things, the ways in which the sites of inequality, exclusion, sovereignty, and so on, can be multiplied and diffused, thereby—perhaps—alleviating some of their negative effects.

Despite the problems with hospitality, recognition, and acknowledge-ment, the need to go beyond or abandon the concept and practice of toler-ance is not that pressing anyway. Inspired by Derrida, David Campbell argues that we need to turn away from tolerance because it does not give adequate consideration to difference, and because it reproduces relations of domination marginalizing the tolerated other. While I am sympathetic to his critique of tolerance and his alternative—affi rmation of the otherness of the other, contestation rather than spatial appropriation of otherness, and


so on—this is to some extent also possible with tolerance, and any alter-native to tolerance is marked by the same aporias that beset tolerance.75

The deconstruction of Habermas, for instance, showed that while toler-ance involves exclusion and inequality, they can be put into question in the name of the inclusion and equality they are supposed to make possible. More generally, tolerance cannot be reduced to unilateral domination.

Here the similarities and differences between Habermas and Derrida are revealing.76 Both are concerned with decentering what Habermas calls unilateralism, albeit in different ways and with different views as to the possibility of doing so. Habermas seeks to dissolve sovereignty and uni-lateralism in the intersubjective relations of free and fair deliberations. He believes it is possible to ‘sublimate’ the unilateralism of the subject in the ‘subjectless forms of communication that regulate the fl ow of discursive opinion- and will-formation’, thus avoiding arbitrariness and inequality.77

The force of (tolerant) law derives from the rationality of the intersubjective deliberative procedures of law-making, so that no subjective coup de force plays any role in the legal relation of tolerance.

The deconstructive view, on the other hand, holds that it is impossible to go beyond the subject and unilateralism altogether, but that, at the same time the uni- of unilateralism, that is, the subject of the philosophy of the subject, is never one anyway. Derrida casts this in terms of sovereignty understood in a very broad sense as capability to act freely. Although toler-ance is always conditional, there is no tolerance without some uncondition-ality; although inclusion is limited through exclusion, the latter is made in the name of inclusion. At the very moment of the sovereign and exclusive self-assertion by a tolerant society, it can also be contested. Although tol-erance (re)produces sovereignty, there is no tolerance that does not also institute at least the possibility of a certain equality and an opening of the uni- to what is other and what the tolerating subject cannot fully con-trol. To tolerate someone implies at least partial acceptance of the tolerat-ed’s sovereignty to decide what to believe and how to behave. Therefore, although tolerance (re)produces the sovereignty of the tolerating, it also produces the sovereignty of the tolerated; and both sovereignties are inter-nally fractured. The sovereignty involved in the exercise of tolerance is not a one-way relation.78

Derrida’s deconstruction of hospitality is revealing in this regard. He writes that hospitality involves a

reversal in which the master in his own home, the host, can only accom-plish his task as host, that is, hospitality, in becoming invited by the other into his home, in being welcomed by him whom he welcomes, in receiving the hospitality he gives.… [a] fi nal reversal of the roles of host and guest [de l’hôte et de l’hôte], of the inviting hôte as host (the master of his own home) and the invited hôte as guest, of the inviting and the invited, of the becoming-invited, if you like, of the one invit-


ing. The one inviting becomes almost the hostage of the one invited, of the guest [hôte], the hostage of the one he receives, the one who keeps him at home.79

The sovereignty of the tolerating party ‘becomes almost the hostage of the one’ tolerated, hence the near reversal. The asymmetry between tolerat-ing and tolerated does not disappear; yet, although the tolerated is depen-dent on the tolerating party’s decision to extend tolerance, the tolerating party also becomes dependent on the tolerated. The reason is twofold. First, the tolerating party must allow the tolerated some sovereignty or leeway in deciding what to believe and how to act. This is so because of the objection requirement, and it means that tolerance necessarily involves a risk. Second, tolerance only works if the tolerated recognizes the tol-erating party’s ability and ‘right’ to tolerate. (This part of the argument is analogous to Markell’s argument that recognition binds not only the recognized but also the recognizer.) In other words, the sovereignty of the tolerating partly depends on and is partly decentered in a symbolic system of recognition over which he cannot exercise full sovereignty. This is why, in another context, Derrida writes that ‘pure sovereignty does not exist’.80 The argument also explains the title of Derrida’s piece, ‘Hostipitality’: hos-pitality involves hostility (exclusion, inequality) towards the one who is shown hospitality. The latter is thus a hostage to hospitality (dependent on the extension of hospitality), but the one showing hospitality is simultane-ously hostage to the one who is welcomed—and hospitality, hostility and hostage are all impure.

The deconstructive move consists in questioning any conditionality, exclusion, or intolerance in the name of an unconditional openness, inclu-sion, or tolerance, that is, in the name of the non-closure or unconditional-ity that accompanies the closure and conditionality. This is an empowering unconditionality or openness that allows for the contestation of the ‘sov-ereign’ tolerating party because the unconditionality tends to render the sovereign passive vis-à-vis the tolerated. The unconditionality or openness is, to use a Derridean term, ‘to come’. It means that it is an ever receding horizon that cannot be reached in the present or in any future present.81 The inherent aporia of tolerance means that tolerance as unconditional inclu-sion or openness is never fully present, and that, although we can speak in the name of an unconditional tolerance, the latter is not a regulative idea or a critical ideal. Nonetheless, the unconditionality has a certain effi cacy in the present, disturbing conditional negotiations of tolerance.

This distinguishes the Derridean position I have argued for here from other deconstructive positions. For example, Stanley Fish, who has drawn on Derrida’s work, provides a brilliant analysis of liberal and deliberative attempts at justifying the limits of tolerance. Yet, in his view those attempts simply reify what is already there, namely a liberal view of the good life dressed up as a theory of justice. His conclusion is that liberal conceptions


of tolerance have ‘not advanced one millimeter beyond Locke’s’,82 to which one can only respond by asking whether he would just as well like to be tolerated by Locke as, say, by Habermas. I know what my answer to that question would be, although I do not expect to be able to provide a Haber-masian style rational justifi cation for it.

To conclude, the persistence of a non-rationalizable element in Haber-mas’s conception of (the justifi cation) of tolerance means that deep and per-sisting disagreements cannot be eradicated. I would add that the guiding horizon of a deconstructive approach to tolerance should not be (rational) consensus. In a recent piece (‘Deconstruction of the Concept of “Toler-ance”’), Enrique Dussel suggests that tolerance intervenes in the moment between a subject’s truth claim and the intersubjective consensus on the validity of that claim. In short, tolerance is linked to disagreement. How-ever, he thinks of the process as always moving from disagreement towards consensus, with the possibility of reaching consensus at some point in the future.83 Despite the title of Dussel’s paper, his position is closer to Haber-mas than to deconstruction. In a deconstructive notion of tolerance, I claim, consensus should not and cannot be the guiding horizon of the concept or practice of tolerance.

Rather than resignation, these conclusions offer optimism. First, although one cannot give any guarantees, disagreements may be invigo-rating for a democratic society. This includes an active engagement with the other, including the religious other. Like Habermas, the deconstruc-tive view is that identities and interests are not given prior to the process of determining the norms of tolerance, but rearticulated in the process of translating one’s claims. But unlike Habermas, on my view, this extends to the norms of tolerance and basic principles. Additionally, if there is transla-tion of claims into another language, it is not a one-way translation, but also a process where the terms of translation and tolerance are themselves rearticulated. Whatever translation of ethical claims is going on is also a transformation of those claims and of the common language or frame-work of tolerance. Although space does not allow me to develop this here, I believe this translation and transformation is better conceived in terms of agonistic democracy than in Habermas’s deliberative terms. Agonism better captures the elements of contestation, struggle and the fact that tolerance hurts, which is not to say that the latter should be the aim of tolerance.

Second, as I have argued above, tolerance not only involves inequal-ity and unilateralism, but also equality and decentring of unilateralism. Again there are no guarantees, but tolerance as a concept and practice at least opens the possibility of rearticulating existing negotiations of equal-ity/inequality, inclusion/exclusion, and relations of domination. Thus con-ceived, tolerance cannot be reduced to its historical expressions; it is always possible to rearticulate and renegotiate it, even if more so in some situa-tions than others.


It is not possible to deduce a set of norms from the deconstructive approach developed here. There are, as I have argued, signifi cant con-ceptual and methodological differences between Habermas and Derrida, deliberative democracy and deconstruction. They approach the issues sur-rounding tolerance in different ways, but it does not follow by any necessity that they will reach different conclusions concerning where to draw the threshold of tolerance, although I have pointed towards some differences in how they would draw the threshold and relate to it. The deconstructive critique of Habermas at the conceptual and methodological levels opens up possibilities not available for Habermas in analysing contemporary politics of tolerance.84 Whether the deconstructive approach can take advantage of those possibilities will be a matter of concrete analyses of historical and contemporary cases such as the French head scarf case, the current British legislation against offensive language towards religious, racial, and eth-nic groups, and the recent Mohammed cartoons controversy. As Derrida notes, deconstruction proceeds in ‘two styles, although it most often grafts one onto the other’. On one hand, it focuses on ‘logico-formal paradoxes’; on the other, it ‘proceed[s] through readings of texts, meticulous interpreta-tions and genealogies’.85 Although, the argument of this chapter ends with the gesture from the former towards the latter, the opposite move—which is beyond the scope of the present chapter—is equally important.

***I hope my reading of Habermas has been a tolerant reading: a reading that follows, with an open mind, Habermas as far as possible, but also intervenes in and disturbs his texts, simultaneously opening and appropriating them. The deconstructive reading should show hospitality to the text: represent it faithfully, but also disturb it. One must approach the text with an open mind, as if that were possible, but also be aware of the necessary conditioning of the reading. The deconstructive reading is, thus, both guest and hostage to the text, living off the resources of the text, but also disturbing them, like a guest overstepping the hospitality shown to it.86 Guest and host to Habermas’s text, which is heterogeneous and, as such, necessarily hospitable.

95

4 Civil disobedience within the limits of deliberative reason alone

INTRODUCTION: CIVIL DISOBEDIENCE AS LITMUS TEST

In a piece on civil disobedience, Jürgen Habermas suggests that we take the treatment of civil disobedience as a litmus test of the maturity of the politi-cal culture of a constitutional democracy.1 ‘Every constitutional democracy that is sure of itself’, he writes, ‘considers civil disobedience as a normal-ized—because necessary—component of its political culture’.2 In this chap-ter, I take Habermas’s treatment of civil disobedience as a litmus test of the way he deals with the imperfectness of a deliberative, constitutional democracy. Civil disobedience precisely points to a lack in the legitimacy of the law. I am interested in what Habermas’s writings on civil disobedience tell us about his notion of deliberative, constitutional democracy ‘before the revolution’, to quote the title of a recent paper on deliberative democ-racy and civil disobedience by Archon Fung.3

Civil disobedience takes place in the gap between legality and legiti-macy. This gap results from the absence of autonomy understood as ratio-nal self-legislation; hence, civil disobedience is linked to the absence of rational law and rational consensus. In this way, the question of civil dis-obedience is linked to issues raised in the fi rst three chapters: civil disobe-dience, for Habermas, implies a tension between rational consensus and majority rule; it must, according to Habermas, contain a reference to the content of the constitution and the public character of lawmaking; and the relationship between the state, or the majority, and the civil disobedient is also one of tolerance. Insofar as civil disobedience is connected to the absence of rational law, we can use civil disobedience as a litmus test of the way Habermas responds to the absence of autonomy and rational law: what are the implications of taking seriously Habermas’s claim that civil disobedience is a necessary and normal part of a mature constitutional democracy? What are the implications for Habermas’s attempts to provide a rational theory of constitutional democracy? These questions are all the more important since Habermas and other deliberative democrats are often accused of idealism and rationalism. My argument is that civil disobedience exposes an ambiguity in Habermas’s work. It can be described as a tension


between two possible readings of his writings on democracy and law. On one reading, rational law and the reconciliation of legality and legitimacy are possible, at least in theory. On another reading, there is a constitu-tive gap between legality and legitimacy so that autonomy and rational law can never be realized, whether today or at some point in the future. I will suggest that the imperfectness of democracy is constitutive, and that we must integrate the constitutive imperfectness and the ineradicability of disagreement into our conception of democracy. Further, if, as we saw in chapter 1, rational consensus can never be reached and rational discourse is never transparent, the decision to carry out an act of civil disobedience and to tolerate such an act cannot be dissolved in what Habermas calls the ‘subjectless forms of communication’ of citizens’ public use of reason.4

Thus, I will argue that Habermas is ultimately unable to carry through the shift from the ‘philosophy of consciousness’ to a communicative paradigm where rationality is located not in a subject, but in the quality of intersub-jective relations of communication. What emerges is a different notion of civil disobedience and democracy inspired by the work of Jacques Derrida. Besides, given deconstruction’s attention to the limits of political institu-tions, it is surprising that there is hardly any deconstructive literature on civil disobedience.5

It is worth emphasizing that using civil disobedience as a litmus test of Habermas’s theory of democracy in this way does not confuse the exceptional or peripheral with the normal or ordinary. Civil disobedi-ence is precisely a normal and necessary part of constitutional democracy, according to Habermas. In addition, Habermas does not only treat civil disobedience ‘in the forms of lectures, interviews, newspaper or periodical articles…obeying rules that are less restrictive than those of the academic world’,6 but also in his more ‘academic’ works, for instance his main work in political and legal philosophy, Between Facts and Norms. Focusing on civil disobedience in the following, I am, thus, taking my cue from Haber-mas himself in order to disrupt the conceptual categories and distinctions that dominate his work. The end result will not be to equate constitutional democracy with civil disobedience; all I am arguing is that all constitu-tional democratic practices and institutions share structural features that can more easily be identifi ed in the particular practice of civil disobedience, namely the ineradicability of disagreement and the ultimate non-rationaliz-ability of law and politics.

DEFINITION: CIVIL DISOBEDIENCE WITHIN THE LIMITS OF PUBLIC REASON AND CONSTITUTIONAL DEMOCRACY

Habermas’s engagement with civil disobedience mainly dates back to the early 1980s,7 although he has also engaged with it in the context of his theory of deliberative democracy in Between Facts and Norms8 and in the

Civil disobedience within the limits of deliberative reason alone 97

context of his recent writings on tolerance.9 The specifi c context of Haber-mas’s most sustained engagement with civil disobedience was the protests against the deployment of US nuclear missiles on West German soil in 1983. Habermas’s conservative, law-and-order adversaries saw civil dis-obedience as a slippery slope undermining the rule of law in a way similar to the situation in the Weimar Republic in the late 1920s and early 1930s. Habermas draws a different conclusion from the same experience, arguing that, although indispensable, the legal form—that is, the rule of law—can-not itself be a guarantee against barbarity. Consequently, civil disobedience cannot be reduced to a question of legality. Here Habermas draws on the US experience of the civil rights movement, the protests against the Viet-nam War and John Rawls’s writings on civil disobedience.10 He argues that, like the United States, (West) Germany has a mature political culture, and that rather than treating civil disobedience as a matter of legality alone, we can, and should, treat it as a matter of political culture, thereby fostering a more tolerant attitude towards acts of civil disobedience.

Habermas believes that ‘the parallel to the neo-conservative movement is the radical critique of reason inspired by French post-structuralism’.11 On Habermas’s reading, both reduce rationality to instrumental rationality, whether the instrumentalism of law and order thinking or the Foucauldian and Derridean reduction of rationality to effects of power and rhetoric. By treating civil disobedience neither as a matter of legality alone nor as a matter of instrumental or aesthetic reason, but instead placing it within the context of communicative reason, Habermas believes it is possible to avoid relativism. Communicative reason is the source of legitimate law, and it is therefore the relevant context for determining the justifi ability, or not, of acts of civil disobedience aimed at the illegitimacy of the law.

This provides the clue to Habermas’s defi nition of civil disobedience in terms of public deliberation and the principles of constitutional democ-racy. Civil disobedience is an extension of public deliberation with different means, and the act of civil disobedience should, according to Habermas, be understood on the model of a public argument. This has several implications. First of all, acts of civil disobedience should be non-violent, ‘demonstrative, symbolic acts’ as distinguished from acts of terrorism, for instance.12 Here it is useful to compare Habermas’s position on civil disobedience to his comments on the German student movement in the 1960s. While sympa-thetic to the demands of the students for a reorganization of the university and of society at large, Habermas eventually became critical of some of their methods. Thus, in 1967 and 1968, he referred to parts of the stu-dent protests as ‘pure actionism’, that is, a fetishism of action—action for the sake of action.13 The problem, he argued, was that the students simply sought to disrupt the existing system without formulating any positive pro-gramme for change. What is more, the fetishism of action had irrational implications since it was an aestheticization of action and violence that could not be rationally grounded in the public but was, rather, subject to


subjective whims. Hence Habermas’s assertion that the ‘actionistic’ parts of the student movement have become irrational: ‘They are no longer will-ing to commit themselves to the claim to rationality of discussions.’14 And hence why Habermas at one point referred to part of the student movement as ‘playing with terror (with Fascist implications)’ and ‘“leftist Fascism”’, formulations that he later regretted.15

In keeping with the model of public argumentation, civil disobedience should not only proceed on the model of public argument, but also be an appeal to the majority’s sense of justice, that is, a public statement with the intent of infl uencing public opinion, the majority, and eventually, legisla-tion. As a consequence, civil disobedience should not seek to further pri-vate interests or conceptions of the good.16 However discursifi ed these may be, they retain an element of subjectivism that cannot be fully exposed to the forceless force of public reason. Furthermore, civil disobedience should only be used in matters of (grave) injustice and must appeal to the prin-ciples of constitutional democracy. The latter are the fundamental system of rights that Habermas, in Between Facts and Norms, derives from the wish to regulate social interaction peacefully and legitimately through the legal medium (cf. chapter 2). Tolerating civil disobedience creates room for dissent even if, contrary to terrorism, civil disobedience stays within the parameters of the principles of constitutional democracy. Thus, it is pos-sible to be critical of existing laws and of contemporary society without associating these with constitutional democracy as such. In sum, civil dis-obedience is tolerated on ‘two conditions’: ‘[u]nder the proviso, of course, that the “disobedient” citizens plausibly justify their resistance by cit-ing constitutional principles and express it by non-violent, i.e., symbolic means.’17

To be justifi ed, the act of civil disobedience must meet additional condi-tions related to the rule of law. The civil disobedient purposefully breaks the law in order to put forward a political claim against a law or a decision. For this to be justifi ed, one must, according to Habermas, have exhausted all legal routes, and civil disobedience should be a last recourse.18 Finally, the civil disobedient must be ready to accept the legal consequences of her act, although Habermas believes the courts should show leniency.19 Even if civil disobedience cannot be reduced to legality, it should not endanger the legal order as a whole: ‘since, the monopoly of violence is just as constitutive as the claim to rational legitimacy for the constitutional state [Rechtsstaat], civil disobedience must meet the condition that arises by necessity from the state’s guarantee of peace [Rechtsfriedensgarantie]. The existence and meaning of the legal order as a whole must remain intact’.20 Law is, accord-ing to Habermas, the only available medium for the integration of modern, complex societies. This explains why Habermas writes that civil disobedi-ence is ‘suspended between legality and legitimacy’, because both of these are essential components of constitutional democracy.21


Habermas’s defi nition of civil disobedience thus involves a qualifi ed jus-tifi cation of civil disobedience because it must be mediated by public argu-mentation, by the principles of constitutional democracy and by the legal order as a whole.

BETWEEN LEGALITY AND LEGITIMACY

Central to Habermas’s defi nition of civil disobedience is, as we have seen, that it ‘must remain suspended between legitimacy and legality’.22 This means, fi rst, that civil disobedience must remain (legally and institution-ally) unorganized in order to perform its roles of guardianship and inno-vation: ‘A democratic culture of contestation [demokratische Streitkultur] like this [i.e., allowing civil disobedience] demands … in return a high degree of tolerance towards the irritating actions of those who move in the twilight between anomie and innovation. … It cannot be organised.’23

Indeed, Habermas believes that civil disobedience would lose its force if it were institutionalized.24 In this regard, civil disobedience is part of what Habermas, in Between Facts and Norms, referred to as the ‘wild’ public, that is, unorganized networks of communication and action outside the political institutions.25 Even if not legally organized, civil disobedience can be a normal part of democracy. Accordingly, taking civil disobedience as a normal part of constitutional democracy implies a broader defi nition of normality than the conservative law and order thinkers allow, when they identify normality with the way things (that is, legal norms) are here and now. For Habermas, normality must include potential for difference and dissent. Likewise, although one must be loyal to the principles of constitu-tional democracy, this does not mean complete loyalty to everything with which constitutional democracy is associated today. Hence, it is not a mat-ter of either/or: either absolute loyalty or no loyalty at all; you are not dis-loyal because you qualify your loyalty.26

Civil disobedience is suspended between legality and legitimacy not only in the sense that it cannot be legally organized, but also in a second sense. It is an illegal act, a transgression of de facto law that appeals to something beyond legality: to the majority’s sense of justice and basic constitutional principles. Legality does not exhaust legitimacy. In this regard, Habermas opposes what he calls ‘authoritarian legalism’,27 which refers to a combina-tion of legal positivism and law and order conservatism, collapsing legiti-macy into legality, as did the authoritarian legal scholars and politicians who promoted a heavy hand against civil disobedience during the nuclear missiles protests. Habermas’s task is to show that the legal order as a whole does not depend on the transgression of particular legal rules.

Civil disobedience is situated in the tension between legality and legiti-macy, and justifi able civil disobedience aims at laws that are not legiti-mate—it functions as a ‘guardian of legitimacy’.28 Thus, one must take into


consideration two distinctions—legal/illegal and legitimate/illegitimate— that should not be collapsed. Although Habermas prioritizes legitimacy over legality with regard to particular laws, he does not consider it a mat-ter of either legitimacy or legality. He believes it is possible to distinguish between the legal order as a whole and particular laws; yet, he emphasizes that the act of civil disobedience should not endanger the rule of law or legal order as such, because modern societies cannot function without the medium of law. The central question to be examined in the following is whether legality and legitimacy can be reconciled. Legitimacy is rooted in autonomy, which for Habermas involves the citizens’ rational self-legisla-tion in common and mediated by the public use of reason. An illegitimate law is one where the addressees are unable to view themselves simulta-neously as its authors (cf. the discussion of constitutional democracy in chapter 2). The question is therefore whether, through his conception of autonomy, Habermas can and wants to bridge the gap between legality and legitimacy.

Civil disobedience takes place in and is made possible by the gap between legality and legitimacy, even if the gap itself is not suffi cient justifi cation for civil disobedience. which in itself is made possible by the imperfectness of law and democracy, by a lack in law and democracy. Additionally, as already quoted, Habermas believes that ‘[e]very constitutional democracy that is sure of itself considers civil disobedience as a normalized—because necessary—component of its political culture’.29 And: ‘civil disobedience belongs among the indispensable necessities of a mature political culture’.30 Civil disobedience is necessary and, as long as a mature political culture is in place, not dangerous. Yet, its role is ambiguous. It is normal and neces-sary, but, on one reading of Habermas, it is merely a temporal feature on the way to a perfect deliberative democracy where there would no longer be any need for it. Civil disobedience ameliorates a lack, fi lling the gap between legality and legitimacy. At the same time, as a normal and neces-sary part of a mature constitutional democracy, it can substitute ordinary, legal democratic action. Yet, if it fi lls a lack in constitutional democracy, as a way to perfect democracy, it cannot be a second-best substitute. Rather, and on a different reading of Habermas, as a necessary supplement, civil disobedience becomes dangerous to the rationality of the law because it suggests the inherent imperfectness of the law, that is, a constitutive gap between legality and legitimacy.31 The possibility of realizing legitimate law qua autonomy is therefore decisive: if legality and legitimacy can—in practice or in theory—be realized in law, and the gap between them closed, then civil disobedience would only be a temporary means on the road to rational law. This is what I will now examine by looking at the two appeals the civil disobedient must make: fi rst, the appeal to constitutional principles and, second, the appeal to the majority through the public use of reason.


NOT YET OR TO COME? REALIZING THE PRINCIPLES OF CONSTITUTIONAL DEMOCRACY

The universal principles of constitutional democracy are what Habermas, in Between Facts and Norms, refers to as the ‘system of rights’ (equal lib-erties, membership, and so on).32 There would be no gap between legality and legitimacy if it were realized in law and in institutions, and, hence, there would be no argument for civil disobedience. It is important to note that what is signifi cant here for Habermas is not the substantive content of laws; what matters with regard to the justifi ability of civil disobedience is procedural justice.

As we saw in chapter 2, Habermas takes a historical perspective on the realization of the principles of constitutional democracy to which the civil disobedient must appeal. These principles only emerged at a particular con-juncture in history—modernity—and must be cashed in through historically situated struggles,33 and civil disobedience forms part of those struggles. According to Habermas, ‘[t]his learning-process, which is again and again interrupted by setbacks, is in no way at an end today’.34 The decisive ques-tion, I believe, is whether it can ever be at an end, that is, whether the gap between legitimacy and legality can ever be closed, even if only in theory. It is decisive, then, what Habermas means by ‘today’: does he mean that the learning process is open-ended and that the principles of constitutional democracy can never be realized? Or does he mean that they have not yet been realized, but may be realized tomorrow or at some point in the future? In this and the following section, I suggest that the latter is the dominant argument in Habermas’s texts, but that we should follow the former line of argument. Doing so will point beyond the Habermasian framework.

In a discussion of civil disobedience in Between Facts and Norms, Habermas writes:

the justifi cation of civil disobedience relies on a dynamic understanding of the constitution as an unfi nished project. From this long-term per-spective, the constitutional state does not represent a fi nished structure but a delicate and sensitive—above all fallible and revisable—enter-prise, whose purpose is to realize the system of rights anew in changing circumstances, that is, to interpret the system of rights better, to insti-tutionalize it more appropriately, and to draw out its contents more radically. This is the perspective of citizens who are actively engaged in realizing the system of rights. Aware of, and referring to, changed con-texts, such citizens want to overcome in practice the tension between social facticity and validity. 35

Here the problem is formulated as a question of the possibility of mate-rializing the system of rights. As is clear from the fi rst part of the quote,


Habermas views this as an open historical process—a fallible and revisable project or enterprise, which is unfi nished. It is still an open question whether or not it could be fi nished some time in the future, whether under more ideal conditions or only in theory. In other words, here it is not clear whether constitutional democracy is imperfect in the present because of empirical obstacles to its realization, or whether it is inherently imperfectible.

However, in the second half of the quote, Habermas refers to the process of materializing the system of rights in light of ‘changing circumstances’ and ‘changed contexts’. It is now a question of the mutual fi t ‘between facticity and validity’, and legitimacy can be realized in the social facticity of law, political institutions, and so on. The incompleteness of the pro-cess is only accidental and can be blamed on empirical obstacles and our lack of cognitive and pragmatic effort, something that becomes clear if we take a ‘long-term perspective’. With this, Habermas opens the possibility of resolving the tension between legality and legitimacy. This would hap-pen if the cognitive and practical problems of realizing rational law were solved. ‘[T]o overcome in practice the tension between social facticity and validity’ would be to eliminate the tension between legality and legitimacy because the law would be rational; since the addressees of the law would also be its authors, there would be neither need nor room for civil dis-obedience. Moreover, seen in this light, ‘[t]he principles remain the same while the historical circumstances and the contexts of interests, in which they are applied, change’.36 The principles are a priori and external to their particular interpretations and instantiations, and their realization is one of discovery rather than construction. This is why Habermas can talk about the process as a process of ‘self-correction’,37 and why he referred to the process as a ‘learning-process’ in the quote above. On this reading, the obstacle to the realization of the principles of constitutional democracy is epistemic ignorance.

However, at this point, one may ask who decides in the face of disagree-ments. There may be disagreements over what the principles are, whether or not they are realized, and whether the civil disobedient is really appeal-ing to the principles. Following the argument of chapters 1 and 2, we may say that, in the face of disagreement, one is presented with two possibili-ties.38 Either a particular interpretation of the principles is imposed pater-nalistically by, for instance, the philosopher (qua rational reconstructor) or the state, but this is problematic from the perspective of autonomy and rational law. Or one leaves these issues open to political struggles, which may include instances of civil disobedience. That does not solve the prob-lem of the justifi ability of the law or civil disobedience either; nor does it secure autonomy, because we would then have a situation where particular interpretations of the principles carry the day without having been verifi ed by all possibly affected. However, to the extent that the process remains open-ended, that may not necessarily be so problematic—something I will return to below.


If there are persistent disagreements, the reconciliation of legitimacy and legality should not be thought as something not yet achieved. Rather, one should think of it as ‘to come’ (à-venir), the expression used by Der-rida when talking about justice and democracy, the point being that justice and democracy cannot be realized in any present, whether today or in the future.39 The realization of justice and democracy is always postponed and remains to come, which means that we can never be entirely satisfi ed with any particular instantiation of justice or democracy in a particular law or institution. For Derrida, there is thus a constitutive gap between law and justice and between any present democracy and democracy to come. Returning to Habermas, we can say that, if there is a constitutive gap between legality and legitimacy, then, in Habermas’s own words, ‘the radi-cal content of the constitutional principles always also overfl ows that part of them that has already been de facto realized in the institutions of the state’.40 Whether characterized by a lack (gap) or an excess (overfl owing),41

on this reading, the realization of the principles of constitutional democ-racy remains to come. Below and following this line of argument, I shall argue that we are better off thinking this imperfectness, this ‘to come’, into our conceptions of civil disobedience and democracy.

So far, the deconstructive reading of Habermas put forward here has proceeded in two steps. First, I have pointed to an ambiguity in Habermas’s texts, indicating how two different readings of Habermas are possible. In a second step, I have pursued one of these readings with the help of Derrida. The second step does not simply stay within Habermas’s texts, but inter-venes by prioritizing one reading over another. In the next section, I shall deepen both of these steps: fi rst, by addressing the ambiguity with regard to the role of majority decisions and rational consensus in relation to civil disobedience, and, second, by expanding on the deconstructive reading of Habermas.

BETWEEN MAJORITY RULE AND RATIONAL CONSENSUS

Civil disobedience is not only suspended between legality and legitimacy, but also between majority rule and rational consensus. In his writings on civil disobedience, Habermas explicitly links civil disobedience to majority decisions—‘the via regia of the democratic will-formation’.42

If a rational consensus is achieved, that is, if agreement is reached in a rational discourse (under conditions of full inclusion, symmetry, and so on), then the addressees of the law or norm will also be its authors, and we can speak of autonomy qua rational self-legislation. In that case, there would be neither room nor need for civil disobedience. If, however, we must make recourse to a majority decision, the minority may think the law is ille-gitimate if they have not been given a fair chance to infl uence the law, for instance due to structural bias in the public sphere or in the procedures of


lawmaking. We would have a gap between legality and legitimacy. In this sense, civil disobedience is situated in the gap between (an unjust) majority decision and rational consensus, and the act of civil disobedience may be justifi ed with reference to this gap.

In this context, Habermas writes:

Majority rule functions convincingly only in certain contexts. Its value must be measured against the following standard: to what extent do the decisions, which the processes of majority rule make possible under conditions of limited resources of time and information, diverge from the ideal results of a discursively achieved agreement or a presump-tively just compromise?43

Note that the justifi ability of civil disobedience is due to the imperfect-ness of the conditions of lawmaking (the structural exclusion of certain groups, for instance), and not a matter of whether the fi nal decision goes your way or not. The justifi ability of the majority decision and of civil disobedience is measured against the standard of an ‘ideal’ outcome, an outcome that is the result of an inclusive lawmaking procedure. In the case of the deployment of American nuclear missiles on West German soil in the early 1980s, Habermas argued that the deployment poses such an extreme risk that it demands the consent of everybody possibly affected, and that it can therefore not be subject to a majority decision as was in fact the case. As a result, he argues, civil disobedience was justifi ed in this case.44 Here it is not (only) a question of the fairness of the procedure leading to the majority decision, but of the very use of the majority rule. According to Habermas, majority rule presupposes two things to be legitimate.

Firstly, the political unit must be uncontroversial. For instance, there should be no permanent minorities.45 More generally, and in the words of Robert Dahl, ‘[t]he majority principle itself depends on prior assump-tions about the unit: that the unit within which it is to operate is itself legitimate.’46 The citizens must be able to see themselves as equal partners in the political unit in question, which they can do insofar as they have had the opportunity to agree—rationally, freely, and so on—to the politi-cal arrangements under which they are living. In this way, the citizens can see themselves as ‘in the same boat’, to use Habermas’s expression from the context of the relationship between constitutionalism and democracy encountered in chapter 2. In the case of the deployment of nuclear mis-siles in Germany in the 1980s, Habermas argues that a common political culture and a common ‘we’ were missing because, at the time, alterna-tive political (sub)cultures had developed.47 Secondly, the decision must not be irreversible. Like the fi rst condition, this serves to give the minority a chance to change the decision at some later point in time. Again, according to Habermas, this condition was not fulfi lled in the case of the deployment of nuclear missiles.48 Other things equal, the more divided society is and the


deeper those divisions are, the more likely it is that civil disobedience can be justifi ed. Summing up, then, civil disobedience is linked to cases where majority rule is not legitimate, where the procedures of decision making cannot themselves be the outcome of rational discourse, and where minori-ties cannot contest the decision outcome.

Habermas sums up the issues relating to majority rule in the following way:

Majority rule retains an internal relation to the search for truth inas-much as the decision reached by the majority only represents a caesura in an ongoing discussion … the majority decision must be premised on a competent discussion of the disputed issues, that is, a discus-sion conducted according to the communicative presuppositions of a corresponding discourse. Only then can its content be viewed as the rationally motivated yet fallible result of a process of argumentation that has been interrupted in view of institutional pressures to decide, but is in principle resumable. Doubts about the legitimacy of majority decisions on matters with irreversible consequences are revealing in this regard. Such doubts are based on the view that the outnumbered minority give their consent to the empowerment of the majority only with the proviso that they themselves retain the opportunity in the future of winning over the majority with better arguments and thus of revising the previous decision.49

Notice that here Habermas again links the justifi ability of civil dis-obedience to the imperfectness of the majority procedure. Yet, a major-ity decision is necessarily imperfect and only gets its legitimacy from the presumption that, under more ideal circumstances, we could continue the discussion and reach a rational agreement. For Habermas, the alternative to the internal relation between majority rule and the discursive search for rational law would be to conceive of democratic will-formation as a Hobbessian or Schmittian existential power-struggle, which secures nei-ther stability nor legitimacy. Therefore, majority decisions must (1) be mea-sured vis-à-vis ‘the ideal results of a discursively achieved agreement or a presumptively just compromise’, and (2) be self-refl exive. This is precisely the point of civil disobedience: it secures ‘a self-refl ective use of major-ity rule’,50 and, as such, civil disobedience is part of society’s self-critical self-refl ection. Accordingly, civil disobedience (also) protects against what Habermas, in another context, calls ‘tyrannical majorities’51 that identify themselves completely with the whole and do not allow dissent. While civil disobedience may be justifi ed with reference to the gap between majority and rational, universal consensus, according to Habermas, this gap does not in itself justify civil disobedience. The majority is then only ‘tyrannical’ if it closes off further deliberation and contestation of a decision that ought to have been decided by consensus. Civil disobedience, we may add, is a


way to open up a situation where a minority feel systematically excluded in the sense of not having the chance to argue their case on equal terms.

WHO DECIDES?

At this point we must return to the question raised previously in relation to the principles of constitutional democracy: who decides? Who decides, for instance, whether the majority is ‘tyrannical’? And who decides if we are dealing with a decision that warrants more than a simple majority? The decisive question for Habermas is the character of the issue in ques-tion: is the decision reversible? Is it an existential question for the mem-bers of the community? This leads him to distinguish between cases where majority rule is warranted and cases where universal consensus—or at least something closer to it, such as a qualifi ed majority—is necessary. For instance, you may argue that the placement of foreign nuclear warheads is of such importance to the life of each member of the political unit that this is a decision that cannot be taken on someone else’s behalf. That is, every individual must give her consent, and the decision must therefore be consensual. The majority may then try to redescribe the situation as a non-exceptional one that does not require consensus. The struggle over the defi nition of the situation and over the relevance of pluralism within the political unit is itself a struggle over the justifi ability of civil disobedience. A particular group may, for example, claim that the use of the majority rule will endanger the very existence of that group as a group or of the members of the group, and that the decision must therefore be the outcome of a general and rational consensus. This would be a way for the group to put forward a claim to inclusion or, if this fails, to justifi ed civil disobedi-ence. Disagreement may not only concern the circumstances surrounding civil disobedience, but also the act of civil disobedience itself, for instance whether it is ‘non-violent’, ‘public’, and so on. The meanings of each of these descriptive terms are themselves contestable. For instance, one may ask what it means for an act (of civil disobedience) to be ‘public’ when the public sphere and the very meaning of public are structurally biased against certain constituencies and practices?

So, who decides? Who decides on the defi nition of the situation and whether civil disobedience is justifi ed? The question cannot be evaded or decided through rational discourse or in a rational consensus because the conditions for a rational solution are precisely absent: there is not only disagreement, but also disagreement over how to reach a fair agreement. Although this is not the place to repeat the discussion of Habermas’s notion of rational consensus from chapter 1, a few comments are nonetheless war-ranted because the discussion in chapter 1 has implications for my read-ing of Habermas. As the implicit telos of communicative action, rational consensus provides a (counterfactual) critical ideal. Nevertheless, as also


noted in chapter 1, in his most recent work, Habermas recognizes the self-defeating character of the idea of a fi nal and rational consensus, not just practically but also theoretically. The whole point of his project is pre-cisely to show how it is possible to contest conventions rationally, including through civil disobedience. The notion of rational consensus would contra-dict central presuppositions of rational discourse, namely the presupposi-tions of openness to contestation of any norm or validity claim.52 A fi nal ‘yes’ would close off the possibility of further yes/no positioning on the part of participants in deliberation, and so the notion of rational consensus is aporetic because it is both the condition of possibility of communication and its limit, both the end of and the end to communication and delibera-tion. Yet, despite these kinds of arguments, Habermas has not given up the notion of rational consensus. Thus, even at this level, it remains the case that Habermas’s work is marked by an ambiguity between, on one hand, the possibility of closing the gap between legality and legitimacy and, on the other hand, the constitutive character of the gap.

If rational consensus is indeed both the condition of possibility and limit of communication, then we are always short of rational agreement, and then there is always an element of decision, for instance on the part of the civil disobedient or the state—an element of decision that cannot be rationalized with reference to the agreement of all those possibly affected by the decision. This refl ects the insurmountable element of disagreement surrounding civil disobedience discussed above. Disagreement is essential, as argued in chapter 1: the movement towards rational consensus must be interrupted by disagreement or dissent if communication and deliberation are to continue to be possible. The practice of civil disobedience is one way in which this can be done.

Does this create the danger that citizens themselves defi ne whether the conditions of civil disobedience are present, what the principles of con-stitutional democracy mean, and what the common good is? Habermas himself warns ‘against those who appeal to a self-defi ned, elitist will of the people or a narcissistically self-defi ned law of nature’.53 Yet, short of rational consensus, the civil disobedient precisely appeals to popular sov-ereignty (and a notion of the demos) and to basic constitutional principles, which she partly defi nes and interprets herself. This may not necessarily be in an elitist or narcissistic fashion, at least not insofar as the defi nitions and interpretations are, as far as possible, contestable. And the same applies to the majority: they, too, claim to represent the whole of the political com-munity at a point when the political community is divided over the specifi c issue. Indeed, Habermas refers to the act of civil disobedience as stepping into ‘the plebiscitary role in its immediately sovereign capacity’.54

Likewise, the self-consciousness, however self-refl exive, of the civil dis-obedient and of the tolerant society cannot be dissolved in the subjectless forms of public deliberation. Civil disobedience is supposed to be part of the self-refl ection of a democratic society, guarding against illegitimacy


and the tyranny of the majority. According to Habermas, this does not lead to the disintegration of the legal order or the democratic society pro-vided that the act of civil disobedience takes place within a horizon of principles and a political culture shared with the laws being contested. Yet, what is thus the condition of possibility of the self-refl ective practice of civil disobedience—namely a mature political culture and the principles of constitutional democracy—also limit it. If civil disobedience is toler-ated only insofar as it does not transgress the basic structure and limits of constitutional democracy, then civil disobedience is relative to the latter, which function as a centre from where self-refl ection radiates. In that case, self-refl ection risks becoming self-congratulatory and risks merely assert-ing the ‘self’ of the political community (the dominant interpretations of the constitutional principles, and so on).55 This reading arises from Haber-mas’s insistence that the legal order must remain intact as a whole. If, on the contrary, we hold that justice is to come, then the legal order, with its constitutional rights and so on, is split from within between a conditional justice (as expressed in the law here and now) and an unconditional justice, which always exceeds and thereby relativizes the law—in short, a justice to come.

Again we are left with the same question as above: Who decides? Who decides, for instance, if the civil disobedient ‘really’ appeals to the prin-ciples underlying constitutional democracy or not? The civil disobedient? The state? The philosopher?

The question is all the more important given that those who engage in civil disobedience are often those whose voices are not and cannot be registered within the present political system or civil society, and who are, as a consequence, not able to appropriate the principles of constitutional democracy as theirs. The danger is that if they are systematically excluded from the political system and the political culture, their acts of civil dis-obedience will be similarly excluded as fanatic, irrational, overreactions, and so on. This is a point that has rightly been made by feminist critics of deliberative democracy such as Iris Marion Young, Holloway Sparks, and Drucilla Cornell, who have argued that deliberation is structurally biased against certain individuals, groups, and forms of political engagement. For instance, Cornell draws upon Lyotard’s notion of ‘the differend’—which we also encountered in chapter 1—to make sense of the situation when someone cannot be heard or seen within the parameters of the dominant idiom.56 Seen in this light, to tolerate civil disobedience may be a way to give voice to those whose voice cannot otherwise be registered within the existing institutionalized and non-institutionalized political system. Habermas’s writings on the German student protests for reform of the uni-versity structure provide a good example of this. At the time, it was clear to Habermas that the students no longer had the option of talking to the administration and professors because the existing structures were deaf to the demands of the students, and so their only real way to gain infl uence


was to disrupt the structures of the university through sit-ins and so on. However, there is a difference between Habermas, on the one hand, and Cornell and Derrida on the other. For Cornell and for Derrida, the other is singular (expressed in Cornell’s use of Lyotard’s notion of ‘the differend’). As such, there is an inherent obstacle to the relation to the other: we may listen to and try to include the other, but ultimately the otherness of the other escapes inclusion no matter how sensitive we are to the singularity of her voice. This is not to say that we should not try to include the other or listen to her demands, only that the justice we are trying to do to her cannot be exhausted because our idiom is deaf to her full singularity. The justice remains to come because of the essential gap between the singularity of the other and the law or idiom through which we establish a relation with her.57

And, what is more, to think of justice and democracy as to come—and to think of civil disobedience in this context—is a better approach insofar as it makes us more attuned towards the possibility that there are individuals and groups whose appeals to justice and democracy we remain deaf to.

Tolerating civil disobedience as a way to give voice to those who cannot otherwise be heard presents us with an aporia akin to that encountered in the discussion of tolerance in the previous chapter. Tolerating civil disobe-dience may be a way to open up the way things are in the present, yet the relation of tolerance always involves an element of closure. The individual and minority depend for their tolerance on the state and the majority, who decide that they can ‘afford’ to be tolerant.58 Although the deconstruc-tive view of civil disobedience introduces a certain equality resulting from the contestability of any particular consensus or interpretation of the prin-ciples of constitutional democracy, an element of asymmetry thus remains (here between state/majority and individual/minority). The inequality not only arises from the relation of tolerance, but also from the determination of the act as an act of civil disobedience rather than, say, ordinary crime or treason or an act that the state can be indifferent towards. Although the defi nition of civil disobedience may in any given case also be open to dispute, it should be clear that in most, if not all, cases, it will be the state and the majority, not individuals or the minority who have the capa-bility to defi ne civil disobedience, whether through the courts or in the public sphere. Together these arguments can be summed as the follow-ing conundrum: the civil disobedient breaks with the present consensus and norms and may turn to civil disobedience because her voice cannot be heard within the present state of things. Yet—and this is the aporia—in order to be effective as civil disobedience, the act of civil disobedience must be recognizable as civil disobedience and be tolerated as such. At the very moment when the civil disobedient breaks with the present system, she is also bound by it. This is not to argue that civil disobedience is ineffectual or toothless, only to argue that it cannot imply an absolute break with what it protests against.


Young, Sparks, and Cornell, and the activists of civil disobedience they refer to, still make appeals to justice and to values such as freedom and equality that are not foreign to real existing liberal democracy or to Habermas’s conception of deliberative, constitutional democracy. Impor-tantly though, these appeals to, for instance, principles of constitutional democracy do not just cite already existing interpretations of those prin-ciples. The civil disobedient proceeds on the assumption that the meaning of ‘freedom’, ‘equality’, and so on, cannot be reduced to actually existing interpretations, but is up for grabs. The appeal both cites what Habermas calls the principles of constitutional democracy—thereby taking them as a ground—and rearticulates them in a performative manner. Insofar as civil disobedience has a performative dimension, it cannot take place purely within the principles of constitutional democracy because it is also consti-tutive of these. We can conceive of this process in terms of Judith Butler’s idea of re-signifi cation and the Derridean notion of iterability: the citation and, thereby, performative articulation of the principles of constitutional democracy.59 Importantly, we are dealing neither with a simple break nor with simple continuation, but rather with a mutual implication between continuity and discontinuity. Thus, if conceived in this way, civil disobe-dience is not revolutionary if we by that mean that it implies an absolute break with the present, but nor is it simply conservative understood as a simple continuation of the present.

Although the process is essentially open-ended, there is nonetheless what Derrida calls a ‘minimal remainder’ of the principles appealed to; that is, there is a remainder that makes us able to recognize these principles— which are articulated anew through each appeal to them—across different uses of them. That ‘minimal remainder’, however, is not some essential core of constitutional democracy, but rather constituted retroactively through the citation of it in political struggles over the meaning and limits of con-stitutional democracy.60 Some may see this as a danger because it does not guarantee that the meaning of constitutional democracy, for instance, can be protected against ‘perversions’. For example, today’s act of terrorism may be tomorrow’s act of civil disobedience.61 On the other hand, to say that the process is inherently open-ended also means that any claim to have closed the gap between legality and legitimacy and between majority deci-sion and rational consensus is suspicious and can be contested in the name of this open-endedness. Both the majority and the civil disobedient must remain open to the contestation of their claims, and the fact that no one can have the last word thus introduces an element of equality in the rela-tionship between majority and minority, state and individual. While this is not the equality of Habermas’s public use of reason, it is another equality of sorts. It is an equality that results not from the specifi cation of procedural conditions of inclusion, equality, and so on, but from the dissemination of the meaning of what would be the fair conditions for reaching agreement. It is an equality that arises not from the promise of just procedures not yet


in place, but from the ‘promise’ of a justice to come—not from the possibil-ity of rational discourse and rational consensus, but from a suspicion of any claim to transparency and consensus.

On the view of civil disobedience and democracy put forward here, the justifi cation of civil disobedience is not reduced to a matter of empiricism or domination. Since all justifi cations—for instance of civil disobedience or its punishment—depend on a particular articulation of principles of jus-tice, equality, and so on, they can all be contested (and, we might add with Derrida, deconstructed62). The justifi cations can be contested in the name of those very principles they claim to appeal to—and those contestations are of course themselves open to contestation. The justice to which the civil disobedient appeals, is then a justice to come. As Derrida says in a discus-sion of the sans papiers in France:

when some of us have appealed to civil disobedience in France on behalf of those without identifying papers … it was not an appeal to transgress the law in general, but to disobey those laws which to us seemed themselves to be in contradiction with the principles inscribed in our constitution, to international conventions and to human rights, thus in reference to a law we considered higher if not unconditional. It was in the name of this higher law that we called for ‘civil disobedi-ence’, within certain limited conditions.63

Civil disobedience ‘within certain limited conditions’, but those condi-tions must be open to deliberation and other forms of contestation. Specifi -cally, there is an appeal to constitutional and international law, but these ‘higher’ laws are conditional rather than unconditional and can be contested in relation to an unconditional justice to come. Similarly, in the context of gay marriage, Derrida argues for civil disobedience ‘not in defi ance of the law, but disobedience of a legislative stance in favor of a better law—a law yet to come or already inscribed in the spirit or the letter of the constitu-tion’.64 The deconstructive position here does not aim at the destruction of law, but at a ‘better’ (rather than a ‘good’ or ‘perfect’) law in the name of a justice to come. The justice to come is not opposed to the law because it is already found in the law in the form of a promise to treat everybody equally. Yet, it remains a promise to come because of the inherent gap between the equality of the law and the singularity of the other.

***In this and the previous two sections, I have tried to extend the reading of Habermas. I have tried to show that Habermas’s texts are ambiguous and can be read in two ways: on one, dominant reading, civil disobedience is a temporary step on the way to realizing rational law, even if only in theory. On another reading—which is the one I have pursued drawing on Derrid-ean deconstruction—civil disobedience is inherent to democracy insofar as democracy involves a constitutive gap between legality and legitimacy. I


would suggest that the second reading is the better reading because it takes into consideration the aporias encountered by Habermas with regard to the notion of rational consensus, which would spell the end of communication, deliberation, and civil disobedience. On the second reading we might say that a non-rationalizable kernel—a constitutive gap mirroring the aporia of rational consensus (chapter 1) and the tension between constitution-alism and democracy (chapter 2)—is revealed in Habermas’s texts. The deconstructive reading attaches itself to this non-rationalizable kernel, not in order to argue that all democratic action is like civil disobedience, but to disturb the conceptual categories and distinctions of Habermas’s theory of democracy. The non-rationalizable kernel—here, the gap between legal-ity and legitimacy—becomes the focus point of the reading of Habermas’s texts. Closing the gap is, in a certain sense, tyrannical, because together with the focus on consensus as the telos of deliberation, it may lead us to overlook disagreement in voices that we are not attuned to. Instead of suppressing the non-rationalizability, and instead of yet another attempt at rationalizing it, we should, I believe, think through the implications of it for civil disobedience in particular and constitutional democracy in gen-eral. To do so is beyond the scope of this chapter, and would require that one thought through, fi rst, the history of the concept of civil disobedience and, second, particular cases of civil disobedience rather than a priori theo-rizing about the concept of civil disobedience. Nonetheless, I would like to address, in turn, two aspects of this: maturity and responsibility.

Before moving on, however, I would like to make a note on the nature of the deconstructive reading of Habermas. The reading starts from Haber-mas’s texts, here his texts on civil disobedience, taking into consideration broader and related themes in Habermas’s work such as rational consensus and the relationship between constitutionalism and democracy. When does the reading stop being Habermas and start being ‘Derridean’ and ‘decon-structive’? It should be clear by now that the reading does not stay within the Habermasian framework, and that it is not meant as a mere exposi-tion or commentary, as if such a thing were possible. The reading goes beyond the Habermasian framework, yet it does not simply break with Habermas. The alternative, deconstructive reading arises as a possibility from within Habermas’s texts, or rather at the limits of Habermas’s texts, at the points of non-rationalizability. Thus, the reading neither proceeds from a point entirely outside Habermas’s texts nor stays completely inside his texts. Where does the reading stop being Habermas and start being Derrida or Thomassen? The answer to the question is that, even from the beginning, it was not simply Habermas. That is, there are possibilities in and effects of his texts, that he, as the author, cannot control (and here I am not interested in whether he intended these or not, although I do not think so). From the very beginning of the reading, I stress certain features of the texts, and I do so on the basis of a certain understanding of Derrida and deconstruction. Similarly, we may say that the reading does not stop


being Habermas because the end result—the alternative, deconstructive position—arises as a possibility from ‘within’ Habermas’s texts. In short, there are not only several signatures of this reading and this book—Haber-mas, Derrida, myself, the readers who will read it with their own questions in mind—but none of these signatures is able to control the effects of the texts, whether those of Habermas or the present one.

CIVIL DISOBEDIENCE WITHOUT THE GUIDANCE OF DELIBERATIVE REASON: MATURITY

Civil disobedience presupposes maturity, Habermas writes, and it is a way to exercise self-criticism on behalf of the democratic community without relying on unambiguous legalism. Thus, constitutional democracy is nour-ished by—and, we might add, must nourish—ambiguity: ‘Authoritarian legalism, which denies a place for civil disobedience in liberal democracy, renounces the human substance of the ambiguous at precisely the point that the democratic constitutional state acquires nourishment from this substance.’65 Civil disobedience, moving in the area of the ambiguous, is necessary for legitimacy and innovation. The experience of Nazism, when inhumanity took a legal form, also teaches us not to rest the democratic order on legality alone. Instead, Habermas wishes to found it on something he believes to be more solid, namely constitutional principles and a mature political culture.

In this regard, democrats must, according to Habermas, be both ‘citizens and rebels’,66 although within the framework of the principles and politi-cal culture of a constitutional democracy, which make us able to reconcile the two roles of rebel and citizen. This is why Habermas argues that civil disobedience does not lead to the breakdown of the political unit. A citizen may rebel against illegitimate laws and injustice, but not against the consti-tutional democratic framework as such, so the latter remains intact. None-theless, citizens ‘may step into the role of the sovereign in an immediate way’,67 whereby they become ‘rebels’. Doing so, popular sovereignty is not mediated by law or constitutionalism. This breaks with the mutual impli-cation between constitutionalism and popular sovereignty that Habermas argued for in Between Facts and Norms and that I discussed in chapter 2. The non-mediated use of popular sovereignty is potentially dangerous because the protection of the singularity of each individual by constitu-tional rights is missing. However, in the present context, popular sover-eignty is mediated by the public use of reason within a mature political culture and, as such, not dangerous.

Consequently, Habermas locates maturity not in an isolated individual consciousness as Kant tends to do,68 but in the quality of the political cul-ture. The Kantian individual maturity and courage do not solve the prob-lem of pluralism of reasons, which is at the heart of interpretations of the


justifi ability of acts of civil disobedience. Indeed, for Habermas, the use of reason by an isolated individual is arbitrary and stays within the philoso-phy of consciousness. The use of public reason, on the other hand, provides a better form of guidance because it is aimed at mutual agreement through the forceless force of the better argument. By eschewing a fi rst-person, potentially egotistical perspective and a third-person, potentially objecti-vating perspective in favour of a second-person perspective of mutuality, which is furthermore procedurally explicated, it is possible to overcome the potential problems of pluralism. Maturity, then, involves acting without the support of hard, positive rules (laws) and acting in a more ambiguous terrain of the public exchange of reasons and of differing interpretations of the law and constitutional principles. The ambiguity concerns the ability to discern whether there is a discrepancy between legality and legitimacy as well as to decide whether a particular situation justifi es the use of civil disobedience. In Habermas’s words, it involves ‘the sensibility—with the measure of judgment and willingness to take risks—which is necessary in transitional and exceptional situations to recognize the legal offences against legitimacy and, if need be, to act illegally out of moral insight’.69

Maturity thus understood is necessary when there is a gap between legality and legitimacy. This in turn requires what Young and Sparks call ‘courage’.70

It also requires ‘a certain faith’, to use the words of Fung from a discussion of deliberative democracy ‘before the revolution’.71 Faith is needed because the outcome of the act of civil disobedience is contingent and because it is not clear what it is legitimate to do: will the act of civil disobedience have the desired effect? Will it be accepted as a legitimate act? Do we interpret justice and the principles of constitutional democracy correctly? In short, a leap of faith is needed because there is a lack of knowledge on which to base one’s actions—it is blind faith, in this regard—and because, to use Derrida’s term, justice is to come and remains elusive.

However, what Habermas here refers to as ‘transitional and exceptional situations’ are, in fact, a general trait of constitutional democracy ‘before the revolution’. Insofar as there is a gap between legality and legitimacy or, in Derrida’s terms, between law and justice, and insofar as justice ulti-mately eludes all kinds of knowledge, there is an element of ambiguity and a corresponding ‘measure of judgment’ and risk. In short, the element of decision that cannot be rationalized (in the Habermasian sense of rational self-legislation) is a constitutive, not an exceptional characteristic of consti-tutional democracy. It is possible to generalize the constitutive gap between legality and legitimacy marking what, at fi rst sight, seems an exceptional practice of civil disobedience to a general feature of democratic action. This is a move already made in part by Habermas when he argues that civil disobedience is a normal and necessary part of a mature constitutional democracy and that we can take civil disobedience as a litmus test of its maturity. This reading of Habermas neither confuses the normal with the exceptional nor dissolves all distinctions; nor does it confuse civil disobe-


dience with democratic action more generally. For instance, we may still argue that the size of the gap may vary and that we may only break the law ‘in the last instance’, as Habermas expresses it,72 or, in Derrida’s words, ‘within certain limited conditions’. All I am arguing is that disputes over these questions will remain, and that this must be taken into account when conceptualizing civil disobedience and democracy.

Habermas is right to argue that civil disobedience cannot be institution-alized, for instance by giving the civil disobedient a right to disobey the law. We might add that civil disobedience cannot be normalized, whether in the sense of normalized (through a right to civil disobedience) or in the sense of normalized because it shares a structural feature with all demo-cratic action. The reason is, as Habermas rightly notes, that the force of civil disobedience stems in great part from its non-institutionalized and transgressive nature: transgressing the law and the majority’s interpreta-tion of the principles of constitutional democracy.73 Yet, in order to have some force, the act of civil disobedience must be recognized by the state and the majority as such. The act would not have the desired force if it was recognized merely as an act of illegality, or if the state and the rest of soci-ety were indifferent to it. The need for recognition makes the force of the act of civil disobedience dependent—or at least in part dependent—on the state and the majority and their acceptance of it as an act of civil disobedi-ence, but this simultaneously blunts the force that the act of civil disobedi-ence gets from being a transgressive act. In this way, civil disobedience gets its force from being simultaneously included and excluded, both permis-sible and transgressive.

Expanding the notion of deliberation is one way to take civil disobedi-ence and the gaps in constitutional democracy seriously. A more extensive notion of deliberation may follow Sparks and Young and stress the impor-tance of political culture and practices that are not only deliberative and argumentative in Habermas’s sense but may have an ‘actionistic’ form that cannot easily, if at all, be translated into deliberative validity claims. What leads to irrationalism for Habermas in fact serves to underpin a democratic culture by focusing our attention on the way in which those ambiguous registers that, as Habermas himself recognizes, cannot be eradicated and may have a benefi cial role to play (and one could think of his own example of the student protests here). To say this does not provide any guarantees, of course, that ‘irrationalism’ can be avoided or that democracy will in fact be reinvigorated.

My argument that we broaden what counts as deliberative and what counts as an argument suggests that what counts as deliberation, argu-ing, and democratic are themselves open to deliberation, argument, and contestation. The response to the inherent gaps in constitutional democ-racy is, then, not simply a matter of extending the outer limits of what is permissible and what is healthy for constitutional democracy. This is the strategy pursued by Fung, Young, and William Smith when they argue that


the notion of deliberation must be expanded to include more than verbal communication.74 However, this sort of limit attitude that seeks to be more inclusive is only a fi rst step. A second step is to realize that constitutional and deliberative democracy is marked by an internal limit, namely the one that arises from the constitutive gap between legality and legitimacy and from the status of justice as to come. The limit we are dealing with here is not the limit between a (sound, rational, legitimate, or not) political unit and something located on the other side of a determinable border, where the task is to establish the limit in the correct way. In a discussion of reason, Derrida writes that deconstruction involves ‘an unconditional rationalism that never renounces … the possibility of suspending in an argued, deliber-ated, rational fashion, all conditions, hypotheses, conventions, and presup-positions, and of criticizing unconditionally all conditionalities, including those that still found the critical idea’. Insofar as ‘reason must let itself be reasoned with’, it is internally split, at once guided and guiding, citing and performatively instituting, and unable to escape the aporia of self-refl ec-tion.75 In a similar vein, we may say that democracy and justice must let themselves ‘be reasoned with’, and that deliberation must itself be deliber-ated with, a point that I take up in chapter 5 in relation to philosophy, reason, and democracy. This is the work of civil disobedience: to reason and deliberate not just with the law, but also with democracy, justice, and so on. It places civil disobedience on this ‘internal’ limit, neither inside nor entirely outside the system it is contesting, and it means that the question of civil disobedience is not only a question of the outer limits of constitu-tional democracy, but goes to the heart of it. Finally, it means that we can-not simply be guided by reason—deliberative or not—because maturity is not only to follow reason but also to reason with reason, that is, to answer not only to reason, but also for reason. In short, the question of civil dis-obedience raises questions such as: ‘What is civil disobedience?’, ‘What is democracy?’, and so forth.

RESPONSIBILITY

The irreducibility of an element of decision with regard to civil disobedi-ence opens the question of responsibility. I return to the issue of responsibil-ity at more length in the context of an ethics of discussion in chapter 5, so here I merely want to highlight the issue as it pertains to civil disobedience. Habermas believes the civil disobedient can be held responsible before the law and before the court of public reason. Although the civil disobedient is contesting the legitimacy of the law, the legal form must be upheld, even if not absolutely. From the deconstructive perspective I am proposing here, there is nothing wrong with this, although it cannot be the whole story. The question of the permissibility of the act of civil disobedience cannot be one simply of applying the law, because the act of civil disobedience contains an


appeal to legitimacy beyond legality. Yet, the meaning of legitimacy is also in dispute, and no one can enjoy monopoly of deciding what legitimacy means. Therefore, the civil disobedient cannot merely be responsible to law and legitimacy; one must also answer for law and legitimacy. Similarly, one must not only answer to public reason, but also for public reason. This refl ects the performative dimension of civil disobedience discussed above: the relationship between, on one side, the law and legitimacy and, on the other side, civil disobedience is not one of pure hierarchy and externality. Instead civil disobedience also rearticulates law, justice, reason, and so on, in a performative fashion, because part of what is at stake in civil disobedi-ence is what justice, democracy, and so on, mean.

Responsibility is marked by a gap between answering to and answering for. As a consequence—and here I am following Derrida— responsibil-ity is ‘infi nite’ or, we might say, always to come.76 Responsibility is only possible insofar as there is a decision and undecidability, that is, insofar as one is not simply following a rule. This is precisely the case with civil disobedience. Responsibility for civil disobedience cannot be called for or taken according to a rule because the act of civil disobedience is also a con-testation of existing rules, legal rules, as well as rules of justice. Nor could responsibility be exhausted by a subject taking full responsibility, because that would presuppose a subject that can master the effects and meaning of her act of civil disobedience. Similarly, if imperfectness is an inherent part of the public use of reason, and if, as a result, we never arrive at a fi nal agreement, then the responsibility to/for the public use of reason is also infi nite. So, responsibility is infi nite: on one hand, there is the pressure to give reasons for one’s actions here and now; on the other hand, there is the deferral of a responsibility to come, one that can never be exhausted. We are dealing with a responsibility that is split between responsibility to and responsibility for and, as such, cannot be exhausted because we cannot be both responsible to and for something at the same time.

Naturally, this will raise the objections that it leads to paralysis, and that it implies that anything goes. Although there can be no guarantees, I think it is possible to argue not only that these might not be the outcomes, but that the Derridean notion of responsibility works against these outcomes. First of all, to say that responsibility is infi nite or deferred does not mean that it does not take place. In Derridean terminology, the condition of pos-sibility of responsibility is that it is impossible in the sense that it cannot be ‘taken’ or exhausted. In fact, the inexhaustibility of responsibility can itself be a source of vitalisation because it involves the continuing contestation and counter-contestation of norms and claims. In short, it does not allow us to rest on a good conscience.

Furthermore, the argument put forward here does not imply that any-thing goes. Responsibility involves responsibility towards the other; it implies responding to the other’s interpretation of the law and of justice, and it implies answering for one’s own position to the other. Thus, one


cannot claim to be beyond responsibility, understood as responsibility to and before the other; one can never claim to have had the last word. This again affi rms the possibility of contestation: responsibility implies that the question of the legitimacy of the law and of the act of disobedience can-not be closed, that, in short, one must respond to and for justice in the sense of a justice to come. The state and the majority must be responsible in the sense of not closing off further discussion and contestation, that is, a responsible state and majority are not ‘tyrannical’ in the Habermasian sense referred to above. Related to this and following Derrida, we may argue that ‘political, ethical and juridical responsibility requires a task of infi nite close reading’.77 One must ‘read’ the situation as closely as possible and take as much as possible into consideration (What kind of situation are we dealing with? Does it justify civil disobedience? and so on). But, this ‘reading’, which is contestable, can never be exhaustive and can never be a fi rm ground on which to base the decision for or against civil disobedience (hence why it is ‘infi nite’). Responsibility, Derrida writes, ‘is heterogeneous to knowledge’,78 and the latter cannot form the basis for good conscience. With Derrida we may also link the question of responsibility and civil dis-obedience to undecidability and the decision: there is no decision and no responsibility without undecidability. This undecidability is not a complete indeterminateness, a leap of faith out of context, but rather a ‘conditioned’ undecidability, a sort of tension in a partly structured fi eld.79 To be respon-sible is to accept undecidability, not to deny it.

CONCLUSION

As a way to conclude and summarize the argument of this chapter, I would like to quote Habermas at length and then draw out the stakes as I see them. The quote is from a recent article on religious tolerance, in which Habermas adds the tolerance of civil disobedience as an example of the way a constitutional democracy can relate to dissent.

A self-defensive democracy can sidestep the danger of paternalism only by allowing the self-referentiality of the self-establishing democratic process to be brought to bear on controversial interpretations of consti-tutional principles. In this regard, it is something like a litmus test, how a constitutional state treats the issue of civil disobedience. Needless to say, the constitution itself decides what the procedure should be in the case of confl icts over the correct interpretation of the constitution. With a legal recognition of ‘civil disobedience’ (which does not mean it does not punish such acts), the tolerant spirit of a liberal constitution extends even beyond the ensemble of those existing institutions and practices in which its normative contents have become actually embod-


ied so far. A democratic constitution that is understood as the project of realizing equal civil rights tolerates the resistance shown by dissi-dents who, even after all the legal channels have been exhausted, still insist on combating decisions that came about legitimately. Under the proviso, of course, that the ‘disobedient’ citizens plausibly justify their resistance by citing constitutional principles and express it by nonvio-lent, i.e., symbolic means. These two conditions again specify the limits of political tolerance in a constitutional democracy that defends itself against its enemies by non-paternalist means—and they are limits that are acceptable for its democratically minded opponents, too.80

In order to be something rather than nothing, constitutional democ-racy must defend itself, a point I pursue further in the next chapter. As is clear from the quote, Habermas believes that constitutional democracy can do this in a non-paternalistic manner and not simply assert (interpreta-tions of) constitutional principles, but instead relate to these in a refl exive fashion. Civil disobedience is part of this self-refl ection. Yet, Habermas also acknowledges that the relationship between the constitutional demo-cratic state and the civil disobedient is not symmetrical. There is fi rstly the reference to ‘the constitution itself’, and secondly the state (or majority) determines the content of the principles of the constitution, which the civil disobedient must appeal to. That is, one side of the argument decides the plausibility of the other side’s justifi cations. We are thus dealing with a con-ditional tolerance, and there is some asymmetry between the state/majority and the civil disobedient. Finally, the reference to ‘the project of realizing equal civil rights’ expresses the ambiguity in Habermas’s position that I have been taking advantage of in this and previous chapters. On one hand, Habermas implies that it is a matter of realizing (possibly in practice) a determinate normative content; on the other hand, the project may also be read as an open-ended endeavour.81 Focusing on the role of civil disobedi-ence within Habermas’s theory of democracy and law, I have tried to argue that we must take the second route and radicalize this.

In conclusion, then, the answer to the ambiguities in Habermas’s approach to civil disobedience and constitutional democracy is not more rationalization and refi nement. Nor is the answer necessarily to tolerate more or less civil disobedience. Instead, we must rethink civil disobedience and democracy to take into consideration the constitutive imperfectness of reason, democracy, and so on, and this need not lead to despair. Rethink-ing civil disobedience and democracy may proceed along two, more or less parallel, routes: by engaging, in a kind of deconstructive genealogy, with the history of the concept of civil disobedience in its different expressions, fi rst of all within the liberal tradition as here in the case of Habermas; and by thinking through concrete cases of civil disobedience. Those tasks, how-ever, are beyond the scope of this book.

121

5 Towards an ethics of discussion

INTRODUCTION

In order to examine what I will call an ‘ethics of discussion’, I would now like to assemble several threads from the argument of the preceding chap-ters. The ethics of discussion is the ethics that Derrida appeals to in his debates with his critics, for instance in his exchange with John Searle and in the debates surrounding the wartime journalism of Paul de Man.1 At one level, the ‘ethics of discussion’ refers to certain academic norms such as the need to carefully and closely study what one evaluates and criticizes, to hear both sides of an argument, to proceed with an open mind, and so on. These are norms that one can fi nd in the academic world, however imperfect, and they are norms that Derrida affi rms. At another level, the ethics of discussion points beyond the walls of the university. In this more general sense, the ethics of discussion implies a willingness to respond to the other. That is, it implies a willingness to respond to the otherness—the singularity and heterogeneity—of the other and to take responsibility for one’s relationship to the other, a relationship that inevitably infl icts some violence on the otherness of the other as we saw in previous chapters.

Whether Derrida had Habermas’s discourse ethics in mind when appeal-ing to an ethics of discussion, I do not know. A crucial difference between the two is that Habermas tries to identify, through rational reconstructions, the universal presuppositions that agents make when engaging in discourse. The result is a specifi cation of certain procedural norms for establishing the validity of norms: full inclusion, equality, the possibility to say ‘no’, and so forth. In short, procedural norms that are not that different—if different at all—from the norms appealed to by Derrida. However, a crucial differ-ence between Habermas’s discourse ethics and Derrida’s ethics of discus-sion concerns the status of the norms they appeal to. For Habermas these norms can be rationally reconstructed (although in a fallibilist fashion) and consensus is the inbuilt telos of discourse. From a Derridean perspective, and for reasons that will become clear in the following, the norms are inherently unstable even as we affi rm them; and, as argued in chapter 1, consensus cannot be the telos of discourse.


In this chapter, I pursue the question of an ‘ethics of discussion’ across a number of themes, some of which have already been touched upon in previous chapters. First of all, I focus on philosophy and reasoning. Here I return to the initial dispute between Habermas and Derrida in the 1980s over the role and character of philosophy. Like democracy and justice, philosophy and reason are marked by the structure of to come, and like tolerance and hospitality, philosophy and reason are marked by a tension between conditionality and unconditionality. This is highlighted when we take the question ‘What is philosophy?’ to be an essential part of philoso-phy (and similarly when we take the question ‘What is reason?’ to be an essential part of reason). Doing so implies that philosophy must answer to and for philosophy, and similarly reason must answer to and for reason. This in turn destabilizes philosophy and reason: philosophical question-ing is always conditional (here and now, according to certain established norms), yet carried out in the name of an unconditional philosophy, which puts into question what we think of as philosophy here and now. Thus, phi-losophy as we know it is destabilized, but it is so in the name of an uncon-ditional philosophy, a philosophy that remains to come because one cannot achieve closure on the question ‘What is philosophy?’ if that question is to be an essential part of what it means to do philosophy. Similarly, with reason: if reason must answer to and for reason, because it also involves asking ‘what is reason?’, then reason is destabilized in a way that, while not undermining reasoning, nonetheless prevents us from ever being content with the defi nitions of reason that we come up with.

Having looked at philosophy and reason, I turn next to democracy. As argued in chapters 2 and 4, democracy is similarly marked by the structure of to come and by a tension between conditionality and unconditional-ity. This is evident again if we ask ‘What is democracy?’, and if we take this question to be an essential part of democracy. Here I am interested in the implications of this for how one defends democracy, which is some-thing both Habermas and Derrida are interested in. The conclusion is that democracy can only be defended in the name of an answer to that question (‘What is democracy?’), but if that is so, then one can only defend democ-racy by simultaneously taking something away from it.2

My argument links together, on one hand, the structure of to come, the tension between conditionality and unconditionality, and the self-referen-tial questioning (‘What is…?’) and, on the other hand, philosophy, reason, and democracy. As such, the argument raises the question of responsibility touched upon at the end of chapter 4. If philosophy, reason, and democracy are open questions, if one must answer not only to, but also for philosophy, reason and democracy, then one cannot simply follow existing procedures and norms in doing so. It is in this context that I will close the chapter by looking at the question of responsibility—responding to the other—as an inherent part of an ethics of discussion.

To see what an ethics of discussion may involve, and how the argument will proceed, it is useful to return to the claim made in the Introduction

Towards an ethics of discussion 123

to the book that the deconstructive reading of Habermas is a hospitable reading. The reading of Habermas has, or so I hope, been hospitable to Habermas’s texts, even if this has been a conditional hospitality, thus infl icting some violence on the texts. This is a conditional reading, yet at the same time a reading in the name of an unconditional hospitality, aiming at a just—precise and fair—reading. This is another aspect of the question of how responsibility arises. If the reading (also) proceeded in the name of a certain justice and unconditionality, it is because the deconstruc-tive reading must respond to the singularity and heterogeneity of the other (here, Habermas’s texts); and because the reading must be responsible for the violence infl icted when the otherness of the texts escapes my reading. (Naturally, although there is a necessary conditionality and violence to the reading, it does not imply that any particular conditions and violence are necessary or natural.) Insofar as the reading is responsible and must be so, it is because it cannot be exhaustive. The discussion of, and argument with, Habermas’s texts are, thus, open-ended because we can never be done with them as if there were a fi nal word or judgement on them.

The argument in the following concerning philosophy, reason, and democracy is structured in a similar way. Hospitality is marked by a ten-sion between conditional and unconditional hospitality, where the latter is impossible and remains to come. Hospitality as such—unconditional hos-pitality—cannot be defi ned, known, or realized without, in the very same move, retreating from it and conditioning it. The aporia can be expressed through the question ‘What is hospitality?’ Hospitality must invent the answer to this in each singular case, yet trying to answer the question—which is necessary in order to show hospitality—necessarily conditions and limits hospitality. This leaves us with an open-ended series of political negotiations of the aporia of hospitality, in each case a reinvention of hospi-tality. This, in turn, introduces the responsibility to the other to whom we show hospitality, a responsibility that cannot, by defi nition, be exhausted. Similarly, philosophy, reason, and democracy are subject to the constant negotiations and renegotiation, without rational foundations, of the ten-sion between conditionality and unconditionality. These negotiations raise the issue of responsibility, of responding not only to philosophy, reason, and democracy but also for them and for what is excluded and suppressed in the course of negotiating them. This is, then, where an ethics of discus-sion can be developed in relation to the three areas of philosophy, reason-ing, and democratic practices and institutions.

WHAT IS PHILOSOPHY? WHAT IS REASON?

Habermas’s The Philosophical Discourse of Modernity, was published in 1985, and it is one long defence of modernity, Enlightenment, and reason against what he saw as a post-modern and neo-conservative onslaught on those ideals. That included Derrida’s work.3 While Habermas’s reading of


Derrida was perhaps not the most acute, it is nonetheless useful to revisit it and Habermas’s accusation that Derrida levels the distinctions between philosophy and literature and between logic and rhetoric. Since, as Haber-mas alleges, Derrida treats philosophy as literature, he undermines any appeal to reason and argument, and he treats argument and reasoning— including logic and philosophy—only in terms of rhetorical success. Thus, philosophical argument does not depend on logical criteria or the open exchange of reasons, but on the rhetorical use of words whose meanings are multiple. In Habermas’s view, this undermines any appeal to philoso-phy, reason, or anything resembling discourse ethics.

Habermas sees the levelling of the distinctions between philosophy and literature, logic and rhetoric as Derrida’s way of avoiding a performative contradiction. If Derrida were engaged in serious philosophical activity, Habermas argues, his absolute critique of reason would be caught in a performative contradiction because he would be appealing to what he was simultaneously criticizing, namely reason. By levelling the distinctions and situating himself within a generalized literature and rhetoricity, Derrida is able to avoid a performative contradiction. However, avoiding the charge of performative contradiction comes at a price, namely that of blunting the force of critique.4 According to Habermas, there is nothing left in Derrida’s work or in deconstruction with which to stand against unreason, and there is no way to distinguish reason from unreason. Thereby Derrida—irre-spective of his intentions—in fact plays into the hands of unreason and of conservative forces against emancipatory progress. Having linked eman-cipation to the rational exchange of validity claims, Habermas becomes engaged in a passionate defence of philosophical argument against what he sees as Derrida’s subversion of the possibility of serious philosophy and, with it, the ideals of modernity, Enlightenment, and reason.

It is worth emphasizing that Habermas does not argue that literature does not or should not play any role in our lives. It does, but one must distinguish literature from philosophy, he argues, and one must distinguish what literature can do (namely, world disclosure) from what it cannot do (namely, problem solving). Not everything can be rationalized in the sense of argumentation, but, to Habermas, that is all the more reason to distin-guish things. Likewise, Habermas is not arguing that philosophy has no rhetorical or ‘literary’ elements. Not only does philosophy contain these elements, philosophy cannot do without rhetoric. Yet, the force of philoso-phy—and of argumentation, reasoning, and so on—stems from the partial bracketing of these rhetorical elements.5 So, as in the case of ethical and religious reasons, rhetoricity and literature have a role to play, but that role is delimited by a hierarchical distinction from logic and philosophy.

In his replies to Habermas, Derrida appealed to what Habermas had accused him of undermining, namely philosophy, argument, an ‘ethics of discussion’, and truth as opposed to falsehood. Habermas’s reading of his work, Derrida writes, ‘is false. I say false, as opposed to true’.6 With regard


to philosophy and literature, he writes: ‘I have never assimilated a so-called philosophical text to a so-called literary text. The two types seem to me irreducibly different. And yet one must realize that the limits between the two are more complex…and…less natural, ahistorical, or given than peo-ple say or think.’7

Derrida’s response to Habermas stressed an ‘ethics of discussion’, which includes certain academic and philosophical standards, the possibility of contestation, including of those very standards, and fi nally, a notion of responsibility. In Derrida’s view, Habermas in fact violated this ethics of discussion, and he asks:

Is there a more serious, fl agrant, signifi cant ‘performative contradic-tion’ than the one that consists in claiming to refute in the name of reason but without citing the least proof and fi rst of all without even reading or quoting the other? … It is with something of a smile that I place myself for a moment within such a self-assured logic in order to point out the ‘performance contradictions’ of someone who defends discussion and promises communication, but without respecting the elementary rules of such practices: to begin by reading or listening to the other.8

Moreover, Derrida claimed that Habermas closed off discussion about the standards of philosophical inquiry. The problem with Habermas, on Derrida’s view, is that he has a particular and limited view of what philoso-phy is and should be, and as a result he cannot see that Derrida is doing philosophy too, albeit of a different kind. Habermas’s rejection of Derrida’s philosophy is imperialistic in the eyes of the latter, because it involves a sort of blackmail where one can only be either for or against reason, for or against modernity, for or against Enlightenment, and where Habermas can defi ne what either alternative means. To Derrida, Habermas does not allow for different ways of doing philosophy and does not allow philosophy to ask ‘What is philosophy?’

On Derrida’s view, philosophy is not a coherent whole with a deter-mined identity and settled limits. Instead, it is internally divided: ‘within [‘“philosophical discourse”’] the regimes of demonstrativity are problem-atic, multiple, mobile. They themselves form the constant object of the whole history of philosophy. The debate that has arisen as regards them is indistinguishable from philosophy itself.’9 Thus, philosophy has no univo-cal answer to the question what philosophy is, what its object is, and how to do it, and this is so as a matter of description of the history of philoso-phy. Indeed, were this not the case, philosophy would become frozen, and there would be no history of philosophy. Philosophy, then, is also the nego-tiation of and struggle over the defi nition of philosophy: ‘A philosophical debate is also a combat in view of imposing discursive modes, demonstra-tive procedures, rhetorical and pedagogical techniques.’10 For Derrida, the


condition of possibility of philosophy as a continued meaningful practice is that there is no single or fi nal answer to the question ‘What is philosophy?’ The argument here is both descriptive and prescriptive: ‘What is philoso-phy?’ is, as a matter of fact, part of the philosophical tradition, but it ought also, for Derrida, to be (an important) part of that tradition as part of its self-refl ective character. When doing philosophy, Derrida places himself within a certain tradition, but at the same time affi rms parts of that tradi-tion against others.

It is important to stress that Derrida’s affi rmation of a certain part of the philosophical tradition is just that: an affi rmation of a certain part of that tradition against those for whom the question ‘What is philosophy?’ has already been answered, and for whom philosophy is merely about fi lling in the gaps on the basis of a defi nition of philosophy. My hypothesis would be that a deconstructive reading of these other approaches to philosophy would show that, ultimately, they cannot close the question ‘What is phi-losophy?’ It remains the case that Derrida’s—and my—highlighting of a certain self-questioning on the part of philosophy involves an element of decision and exclusion.

Including the question ‘What is philosophy?’ as part of philosophical discourse destabilizes the latter. On the one hand, Derrida’s appeal to phil-osophical discourse affi rms it as a ground on which we can proceed. On the other hand, emphasizing the question ‘What is philosophy?’ as part of that discourse subverts the appeal to philosophy as a ground because it puts into question the meaning of that ground. Philosophy continues a tradition and a certain way of asking questions (including ‘What is philosophy?’), yet this necessarily implies the possibility of discontinuing the tradition, of fi nding that what we used to think philosophy is, and should be, is no longer the case. And the possibility of discontinuation arises from ‘within’ philosophy, from the latter’s incorporation of this sort of self-refl ection. Whatever determination of philosophy has taken place by identifying phi-losophy with the question ‘What is philosophy?’ thus functions simultane-ously as a closure and as a possibility for contesting that closure.

Moreover, while the appeal is conditional because it is to a certain phil-osophical discourse, the inclusion of the question ‘What is philosophy?’ relativizes the conditionality vis-à-vis an unconditionality of a philosophy to come. An unconditional philosophy, we may say, could raise any ques-tion in any fashion, independently of any conditions or limits. That, of course, means that philosophy could be anything and that anything could be philosophy. As a result, philosophy only becomes philosophy through some partial determinations of what it is; for instance, of what it means to raise a philosophical question. In short, there is no philosophy that is not conditional. The unconditionality of philosophy must remain to come rather than a regulative idea or a critical ideal: whenever we try to say what it is, it also takes us away from that unconditionality and into the realm of conditional philosophy.


Philosophical inquiry, then, is never unconditional. If philosophizing includes asking ‘What is philosophy?’ then philosophy (as such, pure and unconditionally) is impossible. As soon as we appeal to or affi rm philoso-phy, it is this or that (conditional) philosophy. Philosophical questioning is always conditional: from a certain perspective, with certain questions and understandings, from a certain tradition or mixture of traditions. This also goes for the question ‘What is philosophy?’ that opens up the conditional-ity to the unconditional, and that opens up philosophy here and now to a philosophy to come. That question, too, can only be raised in a certain context, from certain philosophical understandings, and so on. I stress that when I refer to a philosophy to come, I am not just referring to a deferral of the determination of the identity and limits of philosophy. Rather, the to come arises from the aporia at the heart of the philosophy that (also) asks of itself ‘What is philosophy?’ It is the aporia—the fact that we can only say we do philosophy by answering what should remain an open question, namely ‘What is philosophy?’—that is expressed in the structure of a phi-losophy to come. The philosophy to come is, then, strictly speaking impos-sible; or, rather, philosophy is only possible as impossible: philosophy is only possible as conditional, as interrupting the philosophical questioning of ‘What is philosophy?’ Possible qua impossible, and, we might add, also impassable because of the aporia, literally the non-passage of philosophical inquiry.

This argument, I believe, has something like the following implications. The affi rmation of the value of philosophy becomes the affi rmation of a ‘philosophy to come’, a philosophy whose identity we cannot, by defi nition, pinpoint in any present, including any future present. The question (‘What is philosophy?’) cannot be raised from a point wholly within philosophy, because that would require that we had already determined philosophy’s identity and limits, and that we had already answered the question. Insofar as philosophy also deals with this question, philosophy is only possible in the future if it remains undecidable whether the question falls inside or outside the limits of philosophy. The condition of possibility of philosophy is, then, simultaneously the condition of impossibility of philosophy: we can only do philosophy insofar as it is undecidable what it is and how it should be defi ned. Or, in other words, the answer to the question ‘What is philosophy?’ must remain to come.11

This is the kind of philosophical writing that Derrida is engaged in:

‘What is philosophy?’ and ‘What is literature?’ More diffi cult and more wide open than ever, these questions in themselves, by defi nition and if at least one pursues them in an effective fashion, are neither sim-ply philosophical nor simply literary. I would say the same thing, ulti-mately, about the texts that I write, at least to the extent that they are worked over or dictated by the turbulence of these questions.12


Are Derrida’s writings philosophical? Yes, but, what does ‘philosophi-cal’ mean? Habermas is right to think that Derrida does not simply affi rm the value of philosophy and, beyond that, modernity, Enlightenment, and reason. Derrida’s affi rmation of—or ‘yes’ to—those ideals are always fol-lowed by a ‘but’ or ‘although’, a doubt or qualifi cation: is this philosophy?

This also explains Derrida’s ‘interest in non-canonical texts that destabi-lize the representation a certain dominant tradition gave of itself’.13 Looking at non-canonical texts is a way to question the tradition’s self-description as (the only possible way to do) ‘philosophy’ and to stress the irreducible plurality of ways of philosophizing. Derrida is suspicious of appeals to the tradition, and here one can include Habermas’s appeal to the tradition in his critique of Derrida, when he writes:

The rebellious labor of deconstruction aims indeed at dismantling smuggled-in basic conceptual hierarchies, at overthrowing founda-tional relationships and conceptual relations of domination. … Logic and rhetoric constitute one of these conceptual pairs. Derrida is partic-ularly interested in standing the primacy of logic over rhetoric, canon-ized since Aristotle, on its head.14

For Habermas, the tradition of Western philosophy authorizes the hierar-chical distinction, which, in his view, Derrida merely wants to overturn. This may not in fact be the case, but the fact remains that Derrida can-not simply affi rm the distinctions between philosophy and literature and between logic and rhetoric because that affi rmation is always relativized vis-à-vis an unconditional questioning of them.

The defence of philosophy must also proceed in the name of a philoso-phy to come, not just in the name of any present defi nition of philosophy. This is precisely why Habermas is sceptical of the critical force of Derrida’s deconstruction: if the defence of, say, philosophy is marked by the struc-ture of to come, and if, as a result, philosophy cannot simply be opposed to something like ‘non-philosophy’ or ‘literature’ or ‘unreason’, then the value and rationality of philosophy can only be asserted through an ethico-theoretical decision. That, in turn, is problematic for Habermas because he believes it takes us onto a sliding slope towards decisionism, arbitrariness, and relativism. Where Habermas believes that Derrida is unable to engage in critique because he levels distinctions, Derrida believes that Habermas is uncritical because he takes these distinctions and the identity of philoso-phy as given. Since Habermas believes the answer to the question ‘What is philosophy?’ is given, according to Derrida, he forecloses any further argu-ment and discussion about it. ‘Those who protest against all these ques-tions’, Derrida writes, ‘mean to protect a certain institutional authority of philosophy, in the form in which it was frozen at a given moment.’15 What we have here are two different ‘ethics of discussion’: one for whom such an ethics cannot simultaneously appeal to and put into question philosophical


argument (Habermas), and one for whom such an ethics must do precisely that (Derrida and, one might add, Foucault). One for whom there can be no ‘ethics of discussion’ without some form of procedural foundation (Haber-mas), and one for whom there is no ethics without undecidability and deci-sion (Derrida).

Both Habermas and Derrida are interested in limits. For Habermas, the purpose of philosophy is to get limits right. Derrida pursues a ‘limit atti-tude’ of a very different kind. He says about deconstruction and reason and, by extension, philosophy, that ‘reason must let itself be reasoned with’, and that deconstruction involves ‘an unconditional rationalism that never renounces…the possibility of suspending in an argued, deliberated, ratio-nal fashion, all conditions, hypotheses, conventions, and presuppositions, and of criticizing unconditionally all conditionalities, including those that still found the critical idea’.16 Reason, like philosophy, is marked by the ten-sion between conditionality and unconditionality. Reason’s or philosophy’s self-refl ection in part proceeds from itself, but it proceeds on the assump-tion that its self—that is, its identity and limits—is part of what must be reasoned with. Or, in Derrida’s terms, while philosophy’s unconditional questioning must proceed from a certain tradition and conditioning, the latter cannot exhaust the unconditional questioning, but is always relativ-ized vis-à-vis a certain unconditionality.

Reason is conditional, but exposed to an unconditional reasoning and, as such, exposed to an incessant questioning. This happens when reason must not only answer to reason, but also for reason. Having said this implies both following reason (existing norms and conceptions of reason) and ask-ing questions of reason, reasoning with reason. There is a gap between the two: to answer for reason cannot simply be in a mode that answers to reason because reason is in question.17 Yet, answering for reason in part proceeds from answering to reason. Answering for reason is always con-ditioned; it partly proceeds along and in response to existing norms of reasoning.

Returning to Habermas, the problem with Habermas is not that he reduces reason to answering to (or before the tribunal of) reason without allowing for the reasoning with reason. That would be a simplistic reading of his texts. For instance, the rational reconstructions of the universal pre-suppositions of discourse, which have a certain unconditionality to them, are fallible. The rational reconstructions are also validity claims. In this context, Habermas writes:

there is no zero-context for truth claims. They are raised here and now and are open to criticism. Hence we reckon with the trivial possibility that they will be revised tomorrow or someplace else. Just as it always has, philosophy understands itself as the defender of rationality in the sense of the claim of reason endogenous to our form of life. In its work, however, it prefers a combination of strong propositions with weak


status claims; so little is this totalitarian, that there is no call for a totalizing critique of reason against it.18

If, however, the possibility of revising our norms of reason is an essential one then it is not a trivial possibility, but displaces reason—from within, so to speak—in the same way that asking ‘What is reason?’ as an essen-tial part of reason does.19 As argued in chapter 1, Habermas cannot claim for his rational reconstructions a special status, one that would escape the force of discursive testing. Doing so would take him back to the philosophy of consciousness that he wants to avoid because it would posit a subject in the know (the rational reconstructor), a subject with privileged insight. On the other hand, by allowing for ‘the trivial possibility’ that the ratio-nal reconstructor may be wrong, there is the possibility that everything we—including Habermas himself—have thought and written about reason be rejected. But this opening, through which the deconstructive question-ing enters, does not open unto ‘a totalizing critique of reason’ as Habermas would have it, and which would implicate us in a performative contradic-tion in Habermas’s sense. It is, rather, a critique of reason that, while not simply ‘reasonable’ (that, after all, is what we are asking what means), is not ‘unreasonable’ either, at least not insofar as it implies a fi xed distinction between reasonable and unreasonable, a distinction that cannot ‘be revised tomorrow or someplace else’. Indeed, whether we agree with Habermas’s assertion of ‘the claim of reason endogenous to our form of life’, this refer-ence to a way of life should make us ask for the genealogy of (this particu-lar conception of) reason rather than take it as a given.

Does the questioning of reason in the name of reason involve a perfor-mative contradiction? Does it undermine what it simultaneously appeals to? Yes, if that is what performative contradiction means, then the decon-structive reasoning with reason is caught in a performative contradiction. My point is that the performative contradiction is unavoidable and is con-stitutive of reasoning, at least insofar as answering to reason also implies answering for reason. This kind of reasoning, one that is not shielded from the possibility of an unconditional questioning, only works on the basis of a ‘performative contradiction’. This kind of reasoning does not take us beyond reason and is not simply irrational. As Derrida writes:

Is it rational to worry about reason and its principle? Not simply; but it would be over-hasty to seek to disqualify this concern and to refer those who experience it back to their own irrationalism, their obscu-rantism, their nihilism. Who is more faithful to reason’s call, who hears it with a keener ear, who better sees the difference, the one who offers questions in return and tries to think through the possibility of that summons, or the one who does not want to hear any question about the reason of reason?20


To be ‘faithful’ to reason, then, cannot simply be to follow reason, but must also involve a certain disruption of reason, a disruption that nonethe-less cannot itself be rationalized. In that way, the deconstructive notion of reason as developed by Derrida continues certain themes in the critical theory tradition from Socrates through Kant to Habermas. Of course, the deconstructive notion of reason extends from a disruptive reading of that tradition, in this case that of Habermas.

For both Habermas and Derrida, philosophy and reason must be mod-est. According to Habermas, philosophy must restrict itself to rationally and critically reconstruct the immanent presuppositions of social practices such as communication or constitutional democracy.21 It may tell us how normative validity is possible, but it cannot give us any substantial norms that we must follow. For instance, in his discourse ethics, Habermas recon-structs the conditions of possibility of normative validity as a number of procedural requirements that must be followed if one is to be able to claim to have arrived at a right or valid norm. However, substantial values or norms must be decided among those affected by them, for instance by citi-zens in public deliberations; it is not for the philosopher to give that kind of answer. Further, the kind of answers that philosophers can give concern procedural norms rather than substantive and ethical values. (Whether one believes that distinction can be upheld is different matter.) Derrida likewise refuses to give philosophy the role of giving authoritative answers to nor-mative or political questions.

Yet, here we fi nd a decisive difference between Habermas and Derrida over the task—and limits—of philosophy. It can be expressed as the differ-ence between ‘not yet’ and ‘to come’. As argued in chapter 1 in a different context, while Habermas stresses the fallible character of philosophy, he nonetheless works within the horizon of a not yet: it is, at least theoreti-cally, possible to come up with the right answer, and even when it is not, he still retains a horizon of critical ideals that are not disturbed by the impos-sibility of realizing them. For Derrida, on the other hand, philosophical resolution or reconciliation will remain always to come: it is not just prac-tically but inherently impossible to solve—resolve and dissolve—the apo-rias of philosophical concepts, including the concept of philosophy itself. Accordingly, for Derrida, it is not enough for philosophy to come up with answers, for instance to get distinctions right; philosophy must simultane-ously put these into question. This difference between Habermas and Der-rida is evident not only in their treatments of philosophy, as we have seen, but also when they bring their philosophies to bear on political concepts and practices. It is evident, for instance, in the way they believe one can or cannot defend democracy, as we shall see shortly.

Before we turn to look at democracy, I have a few words regarding the implications of the argument about philosophy and reason for an ethics of discussion. If reason is an open question, and if it also involves reasoning


with reason, then an ethics of discussion cannot consist in specifying sub-stantial or procedural norms of reason. This is not to say that one should not try to establish norms of reasoning. That is precisely what it is about: not discovering Reason, but establishing and deciding what should count as good or bad reasons. For an ethics of discussion for philosophy, the academia, and beyond, I would propose principles such as transparency, equality, and the opportunity to raise objections and to put validity claims into questions. The openness implied by the questions ‘What is…?’ cannot be a new foundation and must be a qualifi ed one. The affi rmation of these and other principles can only be a qualifi ed one. It must come hand in hand with an acknowledgement that these norms meet a limit when threatened by those who make use of them to overturn them. Transparency, equality, and so on, only generally speaking then and not in every case; in each case, one would have to renegotiate the principles and to ask what, for instance equality should mean. I would also want to affi rm a broader notion of rea-soning than the one found in Habermas. Reasoning should not be reduced to ‘discursive’ reasoning (talking, writing, and so on), but may also com-prise what Habermas, in the context of the German student protests in the late 1960s, called ‘actionistic’ acts.22 Such acts may only be for the sake of interrupting present institutions and practices, and they may be in a form or have a content that cannot be recognized as an argument or as reasoning here and now. Nonetheless, such acts may be an essential part of an ethics of discussion that lets reason reason with reason.

Similarly, if philosophy also involves asking ‘What is philosophy?’, then an ethics of discussion in this area should mean that one keeps an open mind, listens, reads carefully, discusses, exchanges arguments, and so on, in a continuous renegotiation of the norms of philosophy. In short, an eth-ics of discussion would imply non-reductive readings of and respect for the otherness of the texts. The norms that may be part of such an eth-ics of discussion may again be norms such as transparency and equality: transparency concerning personal, pecuniary, and career related interests, for example, and equality in the name of the forceless force of the bet-ter argument rather than title or publishing outlet. This is not the place to develop these arguments in any detail, but I think the implications are profound for an academic world where the current buzzwords are tenure, quality assessments, metric measures of research, and market and user aimed research.23

In this section, I have examined an ethics of discussion in relation to philosophy and reason and through the questions ‘What is philosophy?’ and ‘What is reason?’ In the following section, and by analogy, I will ask ‘What is democracy?’ and develop the ethics of discussion in relation to this question. As we shall see, to argue that the question ‘What is democracy?’ is an integral part of democratic practice and theorizing has implications for how one thinks about, among other things, the limits of democracy.


IN DEFENCE OF DEMOCRACY

In a recent discussion of tolerance in contemporary societies, Habermas refers to the ‘strange dialectic of the self-assertion of a “militant” democ-racy that is “prepared to defend itself”’.24 He makes the comment in the context of a discussion of the limits of constitutional democracy. The issue is whether, and to what extent, constitutional democracy can tolerate its enemies. The latter include ‘the political ideologist who combats the liberal state’, and Habermas’s examples are religious fundamentalists and Nazis.25 The mention of Nazis is particularly important for Habermas since his whole project can be read as a response to Nazi Germany and the Holo-caust; for Habermas, the question is how democracy can be defended so that it will never again turn into barbarity.

In Habermas’s earlier political writings, we fi nd other examples of the kind of actions and discourses against which democracy must be defended. First, as we saw in chapter 4, during the debates about civil disobedience in the early 1980s, Habermas argued for the tolerance of civil disobedi-ence as long as the latter takes place within the principles of constitutional democracy and appeals to the public use of reason. The tolerance of civil disobedience, he argued, is a litmus test for the maturity of a democracy, because it shows a self-refl ective attitude towards its own limits. To Haber-mas, legality is not suffi cient foundation for the defence of democracy, thus distinguishing him from law and order conservatives. Democracy, he holds, can only be defended on the basis of its underlying principles and on the basis of a vibrant public sphere.

The same pattern is visible in Habermas’s writings from the 1970s. For example, Habermas argued that the terrorists of the Rote Armee Fraktion should be treated as mere criminals without the capability of transcending the present constitutional democratic order.26 It is on this background that Habermas asserts—against the extreme Left—that you can be for democ-racy and the rule of law without being conservative. At stake here are defi -nitions of loyalty and normality. Habermas positions himself against those who oppose everything that is normal here and now, and he positions him-self in opposition to those who have a narrow defi nition of what is normal. Thus, for Habermas, normality must include potential for difference and dissent.27 Likewise, Habermas wants to be loyal to something, namely the principles of constitutional democracy, but this does not mean complete loyalty to everything with which constitutional democracy is usually asso-ciated today.28 That is, it is possible to distinguish different elements of contemporary society, for instance, democratic principles and capitalist exploitation. These elements are only contingently linked, and it is a politi-cal task to dis- and re-articulate them. Hence, it cannot be a matter of either complete loyalty or no loyalty at all, as some conservatives claim. Haber-mas wants to internalize the tensions between different interpretations of


the principles of constitutional democracy, between the system and critique of the system, and so on. These tensions should be mediated by democratic self-legislation according to the rule of law, basic individual rights, and the public use of reason. The question is whether that enables Habermas to draw a clear line between what is democratic and what is not democratic. It is clear from his writings on RAF terror that he does not wish to draw this line in terms of legality or in terms of what the (West) German state and society looked like there and then. Rather, he wants to draw the line in light of the principles of liberal democracy that he derives from his model of deliberation.

During the debates about Berufsverbot—preventing communists and others from becoming public employees, especially teachers—in the late 1970s, Habermas argued that these people may only be excluded insofar as they are openly against the basic principles of constitutional democracy, including the rule of law.29 Habermas’s position is that you cannot exclude someone merely for having different opinions,30 and so exclusion must refer to the kind of opinions people have. But he is then faced with the problem of how to establish legitimate exclusions, that is, exclusions that are not merely the expression of his own particular point of view, exclusions that are rational rather than arbitrary. For Habermas, people who oppose the basic principles of constitutional democracy are excluded or exclude themselves through their opinions.31 It is then legitimate to exclude persons struggling against the principles of constitutional democracy. This is because these principles can be shown not to be simply the expression of a particular viewpoint. However, the principles of constitutional democracy may be interpreted in different ways, and one must, then, determine how broad a spectrum of interpretations are allowed and, thus, included.32 In (West) Germany, the Constitutional Court interprets the constitution (the Basic Law, Grundgesetz) as the expression of these principles. In Habermas’s view, at the time of these debates, the Constitutional Court allowed too narrow a spectrum of interpretations of the constitution, and he believes that, for instance, some socialist and communist positions are legitimate interpretations of constitutional democracy.33 Habermas is critical of, on the one hand, the state as it is here and now and of the courts’ interpreta-tions of the constitution and, on the other hand, the political opinions of the far/extreme Left, and he wants to show that being critical of one does not mean the full endorsement of the other. To oppose the constitutional democratic institutions of the present is not necessarily to oppose constitu-tional democracy as such.

For Habermas, then, the key principles or values to democracy are basic principles of constitutional democracy (the rule of law, popular sovereignty, and so on) and, in conjunction with those, the public use of reason. The enemies of democracy are those who renounce those principles and who renounce the public use of reason in favour of violence. They close off deliberation about validity claims and close off the possibility for the other


to assert her singularity in her own voice, and, in the case of the use of vio-lence for political means, this closure is absolute. In short, they break with the ethics of discussion.34

Derrida holds a similar position. He writes about ‘bin Laden’ that ‘such actions and such discourse open onto no future and, in my view, have no future’.35 In this context, he also refers to events that ‘shut off the future, or carry a threat of death: events which would end the possibility of events, which would end any affi rmative opening toward the arrival of the other’.36

Although for Derrida any discourse will be accompanied by some closure, these are discourses of closure in a different sense because they do not accept any contestation of their own validity basis. In Habermas’s termi-nology, they are validity claims that end the possibility of further validity claims. At least real existing democracy and the rule of law—for instance in their American variants—contain a promise that things can get better because they allow for their own contestation.37

Where Habermas and Derrida differ, however, is when Habermas argues that deliberation has a procedural foundation that can, at least in theory, be specifi ed and that this procedural foundation can be rationally reconstructed, even if subject to fallibilism. In the Preface to Between Facts and Norms, Habermas says about reason that ‘modernity, now aware of its contingencies, depends all the more on a procedural reason, that is, on a reason that puts itself on trial’.38 Reason must put itself on trial, and, according to Habermas, the problem with substantive conceptions of rea-son and conceptions of reason caught within the philosophy of the sub-ject is that they cannot do so because they rest on something that cannot be exposed to the forceless force of the public use of reason. Habermas’s alternative is a procedural tribunal of reason. Moreover, although democ-racy thus understood may refl ect critically on itself, this discourse shares with other Enlightenment discourses ‘the peculiar self-reference that makes it the vehicle for self-correcting learning processes’.39 For Derrida, on the other hand, the specifi cation of reason as procedural, and as procedural in certain ways, is something that must itself be put into question through rea-son. The same may be said about democracy: from a Derridean perspective, Habermas’s procedural foundation of democracy—a procedural democ-racy that puts itself on trial through the tolerance of civil disobedience, for example—must itself be reasoned with.

Habermas’s defence of a deliberative, constitutional democracy rests on a rational and, importantly, immanent reconstruction of the unavoidable assumptions associated with the practice of democratic lawmaking. If we want to integrate our plural and complex societies peacefully in the long run, he argues, then we need something like legitimate law and that in turn presupposes something like democratic law making where those sub-ject to the law can simultaneously understand themselves as the authors of the law, even if only indirectly. Derrida’s disagreement with Habermas is not aimed at the ‘if’; that is, Derrida does not want to reduce democracy


to empiricism, to a particular discourse as the expression of a particular opinion or relation of power. For both Habermas and Derrida, democracy is a historical fact that emerges during a certain period, yet at the same time democracy points beyond any factual or empirical determination of it.

For Habermas, discourses that implicitly or explicitly reject the pre-suppositions of the practice of constitutional democracy have effectively excluded themselves from that practice. If they were part of that practice, we would have a performative contradiction: one cannot appeal to the principles of constitutional democracy in order to overturn them, and one cannot appeal to the public use of reason in order to close off the pub-lic exchange of reasons, at least not without getting oneself entangled in a performative contradiction. The performative contradiction argument excludes those discourses as irrational. Thus, the reconstruction of the principles of constitutional democracy and of the idea of the free public sphere serves to draw a line vis-à-vis the enemies of democracy that must be excluded or, rather, have excluded themselves. It is the possibility of draw-ing this line rationally that Derrida challenges when he argues that there is an aporia at the heart of democracy. If part of democracy is to ask ‘What is democracy?’—and if democracy can only defend itself in the name of a (partial) closure to that question—then this aporia or ‘performative con-tradiction’ is constitutive. We can only draw a line and rationalize it after having answered the question ‘What is democracy?’

Where Habermas talks about ‘a strange dialectic’ of a democracy trying to defend itself, Derrida talks about ‘autoimmunity’. By ‘autoimmunity’, Derrida means the attempt by a practice or institution such as democracy to render itself immune against attempts to negate it. Signifi cantly, the attempt to protect democracy may turn out to do precisely what it was supposed to protect against, namely undermine democracy. This may take two forms. First, democracy may be threatened by forces that were initially created in order to protect it. One example of this is Osama bin Laden and the Taliban, who were once embraced as the enemies of our enemies but later turned into our enemies.40 A second threat to democracy arises from the (mis)use of the freedoms of democracy by discourses which seek to overthrow those very freedoms. An example of this is what happened in Algeria in the early 1990s: the expected winners of the 1992 election prom-ised to overthrow all future free elections, and, in order to prevent this, a military dictatorship stepped in to save democracy.41 Here we have a case of democracy having to close itself in order to remain open; yet, that closure, which is supposed to protect democracy, may in fact destroy it. This is also evident in contemporary anti-terrorism measures, which are meant to pro-tect lives, democracy, freedom, and so on, by taking away some freedoms.

The point is that democracy cannot help but create these dangers to itself.42 This is the aporia: there is no openness without closure, including closure to protect openness. Furthermore, there is no way to ‘rationally’


determine the balance between openness and closure, between freedom and the measures supposed to protect freedom. This makes it diffi cult to pass judgement on government proposals to introduce new measures against, for example, terrorism: ‘It has always been very diffi cult, and for essen-tial reasons, to distinguish rigorously between the goods and the evils of democracy (and that is why I will later speak of autoimmunity).’43 Haber-mas addresses the same problem: are governments overreacting to terrorism threats? When is enough enough? These questions are diffi cult, he writes, ‘because of the inadequate level of secret intelligence’.44 The response here must be that there is never enough knowledge; no matter how much knowl-edge we have about a threat to democracy, that knowledge will, for essen-tial reasons, be inadequate. Although we should aim to collect as much knowledge as possible, there is ultimately an element of political decision involved because we do not know what democracy is (assuming that we retain the possibility of asking what democracy is). What is so dangerous about contemporary discourses about terrorism is their attempt to present certain measures as necessary, for instance by claiming that the police force has said they need the measures in order to protect the public. This is just one way of depoliticizing the issues, in this case with reference to the sup-posedly non-political institution of the police. In addition, if the measures are deemed necessary to protect democracy and freedom, it is easy to por-tray the opponents as at best naïve and at worst dangerous; having done so, it is no longer necessary to take the opponents seriously or to listen to them. The ethics of discussion that I try to formulate the contours of here holds that the necessity, privilege, and so on, claimed by the discourses in ques-tion must be challenged. Importantly, given the structure of autoimmunity, we are never in a position to say with certainty if and when democracy has been saved, and whether the measures put in place to save democracy were the right ones.45

It is, and should be, part of the democratic tradition to ask ‘What is democracy?’ similar to philosophy asking ‘What is philosophy?’ and reason asking ‘What is reason?’ There may be a plurality of answers to the ques-tion ‘What is democracy?’ at any particular time and place, but insofar as democracy also retains as part of itself the question ‘What is democracy?’ there will be something about democracy exceeding all present instantia-tions of it. Democracy, then, is to come, and Derrida only affi rms democ-racy as democracy to come. As Mathias Fritsch rightly argues, Derrida emphasizes certain aspects of the democratic tradition—for instance, free speech—that are linked to democracy’s self-questioning and responsibility towards the other.46

Importantly, the defence of democracy also limits and threatens democ-racy. If democracy is an open question, then democracy must also defend itself against itself, not just against external enemies, and this defence also threatens democracy, being both for and, in a certain sense, against


democracy. An open public sphere, for instance, requires the exclusion of certain discourses intent on distorting it or closing it down. Similarly, one can defend democracy in the name of a democracy to come, but insofar as it remains an open question what democracy is, this defence will also threaten the to come of democracy to come. Democracy, then, must defend itself against itself defending itself—hence autoimmunity. We are deal-ing here with a threat to democracy, by democracy, and in the name of democracy.47

The question is what, if any, critical work the notion of democracy to come may do. Following the Derridean argument, I suggest that democracy to come can do some critical work, although it does not make deconstruc-tion into critical theory.

First, if democracy includes the question ‘What is democracy?’ it will involve a constant self-questioning of what it is and what its limits are. This self-doubt must be institutionalized because otherwise ‘fundamentalist’ and ‘non-democratic’ discourses will have a monopoly of criticizing real existing democracy.48 Defending and revitalizing democracy requires that it is not determined, that the gap between democracy as we know it and the democracy to come remains open—even if this, too, is a partial determina-tion of it. Here the difference with Habermas is not so much that Habermas wants to determine in more detail the character of the democracy to be defended than Derrida does.49 Rather, the crucial difference lies in the fact that Habermas believes it is possible to do so in a rational fashion through the method of rational reconstruction, for instance with the use of the per-formative contradiction argument. So, while the work of deconstruction also concerns limits and distinctions, deconstruction does not attempt to rationally discern these.

Second, as Derrida argues, it may be possible to use the notion of democracy to come to distinguish and exclude discourses that ‘open onto no future’. It may not be possible to exclude discourses critical of present democracy, but it may be possible to exclude in one way or the other those that reject the self-referential question ‘What is democracy?’ We might argue that, with regard to such discourses, there is nothing to argue with. They do not lend their validity claims about democracy to further question-ing—that is, they do not subscribe to anything like the ethics of discussion that I am proposing here. Here one must be careful, though. It is not pos-sible to elevate this to the status of a critical principle or ideal and rational-ize it, for instance through something like the performative contradiction argument. The closure to protect against closure is also one closure among others, and any ethics of discussion is also one ethics among others. The relative priority of the closure to protect against closure is only established through an ethico-theoretical decision. So, although the notion of democ-racy to come may support a critique of sorts in the name of the ethics of discussion, for Derrida, the defence of democracy cannot be rationalized in the way Habermas seeks to do.


In the context of democracy, I would like to suggest that an ethics of discussion implies a different relation to the others of democracy, to those who criticize democracy or who criticize ‘our’ defi nition of it. To criti-cize democracy cannot simply be antidemocratic or undemocratic because democracy—its defi nition, its essence, its ‘is’—is in question. Hence, the ones who criticize democracy—which is always democracy in its current form, here and now—cannot automatically be placed outside democracy; nor can those who question measures to protect democracy automatically be said to threaten democracy. The fl ipside of this is that you do not have to declare yourself to be an antidemocrat in order to be critical of democracy as we know it. Equally, you cannot accuse someone of being an antidemo-crat merely for criticizing democracy, whether democracy here and now or in any other form. The argument has implications for the way Islam (as if it were just one thing) positions itself and is positioned by others today when it is articulated as undemocratic or even antidemocratic. Although Islam may seem to be the only discourse that places itself in opposition to democracy, if we hold that democracy is essentially an open question, then a much more varied range of responses become possible, both by those who speak in the name of Islam and those who speak about Islam.50 It is then no longer a question of either/or. The ethics of discussion is precisely critical of the either/or as a form of argument because the either/or closes down the discussion, reducing the other to a choice that I present to her: are you with us or with the terrorists? Are you for or against Enlightenment? In each case, one of the options is invested with positive value, thereby creating a normative hierarchy, and the choice is a forced one. So, not only does the either/or reduce the other’s possibilities of responding to two, in fact there is not a real choice.

An added implication is that democracy is an inherently historical con-cept and practice because it does not have an essence or a telos, but con-sists of the continuous renegotiations of its meaning, that is, of asking and answering again and again the question ‘What is democracy?’51 Like toler-ance, as we saw in chapter three, democracy must be invented again and again. This historicity should draw our attention to the imperfectness of past and current democracy—in short, it should make us very critical of democracy, so critical, in fact, that we will never be content. Democracy, thus understood, is imperfectible because it is never perfect or realized ‘as such’. As such it is also perfectible, that is, always capable of improvement, but, importantly, there is no guarantee of improvement and no principle we can follow for pursuing this improvement. The historicity of democ-racy should also make us responsible: responsible to democracy, which also involves responding to the question ‘What is democracy?’ and, thus, responsibility for democracy. It is a responsibility for defi ning democracy and putting it in place, but at the same time a responsibility to and for what is excluded and suppressed in this process. I now turn to consider the ques-tion of responsibility in relation to an ethics of discussion.


RESPONDING

Derrida explicitly links responsibility to giving reasons. Responsibility qua reason giving, he claims, is ‘the most classically metaphysical defi nition of responsibility’.52 Linking responsibility to giving reasons, Derrida does not place himself outside or beyond metaphysics, although it may be argued that he places himself on the limit of metaphysics with a notion of reason that is inherently unstable. Habermas, too, links responsibility to giving reasons for one’s action and claims. One must, according to Habermas, be ready to defend one’s validity claims with reasons and do so in public.53

One fi nds this, for instance, in his notion of civil disobedience examined in chapter 4: the civil disobedient must take responsibility for her actions before the law and before the public, giving reasons in the name of justice and to her fellow citizens. It is also evident in Habermas’s critique of the ‘actionistic’ parts of the German student movement in the 1960s when he complains that the students ‘are no longer willing to commit themselves to the claim to rationality of discussions’.54 The problem here is not so much the actions themselves, but the potentially dangerous consequences of not submitting oneself to the public use of reason. Similarly, when Habermas criticizes Derrida’s dissolution of philosophical distinctions between logic and rhetoric, reason and unreason, and so on, the irresponsibility is not so much a matter of poor philosophy. Rather, Derrida is irresponsible because, in Habermas’s eyes, his deconstruction of those distinctions leaves us with no appeal to reason against conservative and regressive forces.55

In this book, looking at key issues in Habermas’s work, I have tried to put into question central elements of Habermas’s project, and the decon-structive argument has also got implications for the concept of responsibil-ity, which I will try to link to an ethics of discussion in the following. In chapter 1, I argued that if a rational consensus is aporetic and the move-ment towards a rational consensus must be interrupted, then there is an element of decision and exclusion that cannot be rationalized in the Haber-masian fashion. This, we may say, makes us responsible to the other, to the excluded or suppressed voices. We are not exempted from responsi-bility because a transparent and non-violent rational consensus is impos-sible; rather, we must continue responding to and asking questions of any particular consensus just as we must respond to disagreement and to the other who cannot gain a voice within the relevant discourses. Yet, as also argued in chapter 3 in relation to tolerance, the otherness of the other partly, but necessarily, eludes my response, because my response is cast in a particular idiom rather than in a universal and transparent language. My responsibility to the other is, thus, impossible. However, this impossibility is simultaneously the condition of possibility of responsibility because it means that responsibility cannot be exhausted, for instance in transparent communication.

In the present chapter and in chapters 2 and 4, I argued that if democ-racy, philosophy, and reason are marked by the structure of to come and by


the tension between conditionality and unconditionality, then this means that we are not just responsible to democracy, philosophy, and reason, but also for the particular articulations of these and for continuously question-ing them. The responsibility to and for democracy, philosophy, and rea-son may be impossible in the sense that it is inexhaustible, yet this is also what makes it possible and what makes it a responsibility of continuous contestation and questioning. In Habermas, by contrast, responsibility for democracy, philosophy, and reason—a responsibility that arises in connec-tion with fallibilism—may at some point be subsumed to a responsibility to (rationally reconstructed) democracy, philosophy, and reason, at least theoretically.

Earlier in this chapter, I linked responsibility to an ethics of discussion, specifi cally in the sense of responding to the other. In Habermas, respon-sibility is understood in terms of his discourse ethics as a responsibility to the other, involving an imperative to respond to (the validity claims of) the other. This is what is involved in the specifi cation of rational discourse as one that involves symmetry, full information and inclusion, and so on. It is also what is involved in the notion of das Nein-sagen-Können discussed in chapter 1: Habermas’s discourse ethics, we may say, implies the possibility for the other to say ‘no’ to my validity claims. Inversely, I am responsible to the other insofar as I remain open to the other’s possible ‘no’, and insofar as I remain committed to the actual capacity of the other to say ‘no’. Although something similar could be said to characterize what Derrida refers to as an ethics of discussion, there are nonetheless, and as already suggested, important differences. In the following, I try to tease out those differences and the contours of a deconstructive, Derridean alternative, by looking at one of the cases where Derrida invokes an ethics of discussion, namely the case of Paul de Man’s wartime journalism.

In this case—as well as in other cases where Derrida engages in debate with those who accuse deconstruction of ethical, political, and academic irresponsibility—Derrida links together responsibility and an ethics of dis-cussion. This is the case, for instance, in his exchange with John Searle, when Derrida raises the question of the responsibility of intellectuals and the press and writes:

this republication and our exchange should serve above all as an invita-tion to others, in the course of a discussion that is both open and yet to come. I have accepted your invitation with this hope in mind and not at all with the aim of providing a fi nishing touch or having the last word.56

‘Having the last word’ and thereby closing the discussion would exhaust responsibility because a fi nal judgement on Derrida’s texts could then be passed and the matter closed. Likewise, in his responses to Habermas, Derrida appeals to an ethics of discussion against Habermas’s attempts to defi ne philosophy and reason, and Derrida argues that the deconstructive


questioning of reason is a way to be responsible to and for reason.57 Later, in his celebration of Habermas on the latter’s 75th birthday, Derrida wrote that he had found Habermas’s reading of his work ‘shall we say, unjust and overhasty’ or, we might add, unjust because overhasty.58 Yet, at this point, Derrida is much more positively inclined towards Habermas, who, as I quoted in the Introduction, suggested to Derrida that they ‘have a “dis-cussion”’.59 Derrida writes about their newfound friendship that

I hope that in the order of philosophy (the ‘ethics of discussion’) it demands more than just two different things: a political engagement of philosophers—to refl ect on the meaning of responsibility, beyond life’s usual passions—and the honesty, the probity, the Redlichkeit of thought. Thought about the other, the event, politics and history, and the future. In Germany, in France, in Europe, and in the world to come.60

To proceed responsibly, honestly, and in the spirit of an ethics of discus-sion is to proceed with an open mind, albeit with all the qualifi cations that follow from the tension between openness and closure discussed through-out the book. The openness should therefore be understood neither as a rule of justice nor as the liberal or deliberative exchange of reasons in a transparent public.

Turning now to the Paul de Man case, in 1987 it was discovered that Derrida’s friend and colleague, Paul de Man (1919–1983), had written a number of articles in Belgian newspapers during the Nazi World War II occupation of the country. The articles were mostly reviews of contempo-rary art, some of them published in the collaborationist newspaper Le Soir and at least one of them with anti-Semitic content. At the news of these wartime writings, Derrida and some of his colleagues made the writings public and published an edited volume of responses.61 In addition, Derrida wrote a piece on Paul de Man’s wartime journalism and a response to some critics.62 From the perspective of an ethics of discussion and of the notion of responsibility, what is important are not the details of Paul de Man’s writings, but the way in which people responded to the wartime writings. Here it is important to keep in mind that the ‘affair’ was very much a part of a critique of deconstruction within and outside the American academy in the 1980s. Derrida was supposedly guilty by association, and so he was also, in some sense, defending himself and deconstruction.

In his pieces on the Paul de Man affair, Derrida is preoccupied with the question of responsibility: How can one hold someone responsible? How can one take responsibility? The pieces are not only about responsibility (the responsibility of de Man, Derrida, and deconstruction), but are also meant as examples of responsibility and of the problems involved in the concept and practice of taking responsibility. This is made evident from the very start of Derrida’s fi rst intervention, when he starts the article in the following way:


Unable to respond to the questions, to all the questions, I will ask myself instead whether responding is possible and what that would mean in such a situation. And I will risk in turn several questions prior to the defi nition of a responsibility.63

Asking what makes responsibility possible, Derrida is unable to say what responsibility would involve in the Paul de Man case. This is not only because of lack of knowledge about Paul de Man and the historical context, but more fundamentally because this is precisely what is at issue: What is responsibility? What are the conditions of possibility (and impossibility) of responsibility? These questions are necessarily ‘prior to the defi nition of a responsibility’ because they concern the latter’s condition of possibility. As long as we ask what responsibility is, or should be, we will never be in a situation where we can take responsibility in the sense of exhausting it. In this way, responsibility is infi nite, barring us from a good conscience, and any defi nition of responsibility will always be this or that ‘defi nition of a responsibility’. Hence, although Derrida sets out to question what respon-sibility means, it does not mean that one can avoid responsibility: ‘There will be many of us who will have to take their responsibilities and who, at the same time, will have to say, in the face of what is happening to us today, what responding and taking responsibility can mean.’64

The task is to take responsibility and to question our inherited defi ni-tions of responsibility and the way responsibility is exhausted by identify-ing a structure or an agency to which responsibility can be assigned once and for all. Derrida’s post-structuralist perspective challenges precisely this by challenging traditional notions of structure and agency: ‘responsibility, if there is any, requires the experience of the undecidable as well as that irreducibility of the other’.65 Ernesto Laclau, in his intervention in the Paul de Man affair, expresses this post-structuralist view more directly when he writes that, since meaning is constituted through difference and context, and since contexts are ultimately undecidable, it is impossible to exhaust the meaning of a particular text in a particular reading of it. Attempts to reduce the meaning of a text to a single reading and to prevent any further questioning of the meaning of the text are, according to both Laclau and Derrida, totalitarian. Laclau writes:

What is it, actually, to be totalitarian … ? Essentially, it is to assert that there is a point of the social fabric which is the locus of both knowledge and power, and from which society can be ‘rationally’ orga-nized. That is, totalitarianism drastically eliminates any difference or ambiguity and maintains the myth of an absolutely transparent social organization.66

This is what we fi nd, for instance, in W. Wolfgang Holdheim’s interven-tion in the debate on Paul de Man when he writes, in response to Derrida: ‘A point of historical context: writing such pieces [as Paul de Man did] in


Le Soir and Het Vlaamsche Land in the early 1940s squarely fell under the heading “collaboration.”’ And, a bit further on: ‘the act was considered even more unacceptable at that time than it may seem today, and pointing this out is not a judgment but the reminder of a historical fact’.67 Once the historical context has been determined, and once the meaning of particular acts within that context has been determined, it is possible to proceed to passing judgement and to assign responsibility.

This is precisely the kind of move that Derrida tries to resist in relation to Paul de Man. He writes:

in analysing, judging, evaluating this or that discourse, this or that effect of these old fragments, I refused to extend these gestures to a general judgment, with no possibility of appeal, of Paul de Man, of the totality of what he was, thought, wrote, taught, and so forth.68

No text or author can be treated as a homogeneous whole, and no read-ing can be a fi nal and exhaustive reading.69 Therefore one should not pass a ‘general judgment’, one that purports to judge the totality of a text or an author. For instance, one may want to distinguish between different parts of Paul de Man’s work, although without reducing the different parts to closed (or mutually independent) wholes. In addition, one cannot treat ‘deconstruction’ as a homogeneous whole, where one part necessarily impli-cates the other parts. Were this the case, one could hold Derrida respon-sible for what Paul de Man wrote, assuming that they both form part of ‘deconstruction’; similarly, one could say that if Heidegger was a Nazi, and if Heidegger is central to Derrida’s work, then Derrida’s deconstruction must be tainted by Nazism.70 Derrida shows the effect of not distinguish-ing between different authors when, in his reply to his critics in the Paul de Man case, he does not mention the names of his detractors (apart from Jonathan Culler), but merely treats them as a homogeneous whole.71 One could add Habermas’s reading of Derrida here as an example of a reading that collapses different authors and works and takes Derrida’s ‘disciples in literary criticism’ to represent Derrida and deconstruction.72

In the case of Habermas, Derrida complained that Habermas had not read him properly. Similarly, in the Paul de Man case, homogenizing read-ings of Paul de Man, deconstruction, and Derrida, are unjust. As I quoted Derrida saying with regard to Habermas’s reading of him above, homog-enizing readings are ‘unjust and overhasty’. When reading, one must be precise (one must get it just right) in order to be just to the text, but since the text is inherently heterogeneous, the justice that one can show it will be a justice to come. The justice to come is, as argued earlier, impossible in the sense that it will never be realized. Similarly, we might say that the justice that one shows to the text is impossible. Derrida says about his own read-ing of Paul de Man’s wartime journalism that it


takes the form of a recurrent alternation, according to the disjunctive partition of an ‘on the one hand … on the other hand.’… (that, out of concern for clarity, I will be obliged to harden into an opposition through the rhetoric of an ‘on the one hand, on the other hand’)73

Importantly, this way of reading is meant to make clear the heterogene-ity of Paul de Man’s texts, yet at the same time clarity requires an element of homogenization (‘on the one hand, on the other hand’). We are faced with a sort of double imperative where we must pay due to the heterogene-ity, singularity, and otherness of the text but at the same time make sense of them, which is only possible by in part imposing a common language.74

This is absolutely central to understanding what a deconstructive or Derridean ethics of responsibility may imply. It is clear that the relation-ship to the other must imply an opening to the otherness of the other: as argued earlier in this chapter, I must try to read as carefully as possible the texts that seem incomprehensible, heterogeneous, and so on; and, as argued in chapter 3, I must approach the other with the intent of accom-modating her otherness. In this sense, I must respond to the otherness of the other, and responsibility then implies responding to the otherness of the other, whether we are reading a text or discoursing. Yet, the otherness of the other eludes my attempt at appropriating it. My reading of a text, for instance, is only one possible reading; and my understanding of the other cannot proceed from her idiom alone. What we have is a negotiation of two competing and heterogeneous injunctions that are united in the attempt to understand the other: I must try to understand the other, yet this will nec-essarily be on a conditional and calculated basis and will violate the other-ness of the other. In other words, I must try to be just to the other, but this is always a conditional justice, yet the latter stands in a relation of tension with an unconditional justice to come.

To be responsible, then, is to respond to the other, and from the Der-ridean or deconstructive perspective that I have sought to develop in this book, this is an impossible task (or, rather, it is only possible as impossible). I would like to stress that, for Habermas, responsibility means something not altogether different. As already stated, responsibility for Habermas involves giving reasons to the other, to respond to the other’s validity claims with reasons. Indeed, we can think of the very process of discourse as one of reciprocity and of giving the other her due. In one place, Habermas describes how discourses may be responsible:

This kind of argumentative practice that is as inclusive and continuous as possible is subsumed by the idea of continually going beyond the limitations of current forms of communication with respect to social spaces, historical times, and substantive competencies. The discursive process thereby increases the responsive potential by which rationally accepted claims to validity prove their worth.75


The ‘responsive potential’ of the relation to the other is precisely what is at stake here. The differences between the Habermasian view and the decon-structive view I have been defending are two, I believe. First, for Habermas, the idea of the inclusion of the other—or the responsibility towards the other—remains potentially pure, whereas from the deconstructive perspec-tive developed here, the relation to the other necessarily violates the other at the very moment of including and responding to her. Second, as a result, I believe that the deconstructive take on the relation to the other is in a sense more critical than the Habermasian one. By more critical I do not mean critical in the sense of being able to discern more sharply according to some critical ideal. Habermas himself refers to a certain ‘“restlessness” of idealizing anticipation’.76 For Habermas, this ‘restlessness’ is linked to the ‘responsive potential’ and to critique. The ‘restlessness’ of a deconstructive critique, if we can call it that, is of a different kind, however. It is a restless-ness that can seek no comfort in a critical ideal as understood by Habermas and other critical theorists. It is a restlessness that looks back through the lens of deconstructive genealogies of the present (but not to discover an origin) and forward to the possible negotiations of the aporias of concepts and practices (but not towards their resolution).

The conclusion is not that understanding or communication is impossible or never happens, only that one must remain sceptical of those who claim that understanding and communication could ever be complete, however theoretical the conditions of this completeness are. Further, if responsibil-ity implies responding to the other this means that a responsible reading and a responsible relation to the other is one that responds to her otherness. That, however, is impossible, as we have seen, because the other is precisely other to me. Yet, this only means that responsibility cannot be exhausted and is infi nite; that, in short, it involves the continuous responding to the other.

In terms of an ethics of discussion it implies two things. First, one must attempt to create an institutional space for discussion, whether inside or outside the university—as Derrida and his collaborators did when publish-ing Paul de Man’s wartime writings and the volume of responses to which everybody was invited to contribute. No such attempt will be able to let the voice of the other be heard in its otherness or as it ‘really’ is, and no such space will be completely transparent and symmetrical, but this does not exempt us from the responsibility to create these spaces.77 Second, any response is not just a response to something in the past (another opinion, the other’s validity claim, and so on), but also a response to the future understood as the other’s possibility to respond again. To be responsible, a response must also be a beginning, an invitation to let the other speak. So, to conclude this exploration of an ethics of discussion, I will let Habermas have the fi nal word: let’s ‘have a “discussion”’!

147

Notes

INTRODUCTION

1. Jacques Derrida, ‘Honesty of thought’, trans. Marian Hill, The Derrida– Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edinburgh University Press, 2006), 300–6 at 301 and 300.

2. Jacques Derrida and Jürgen Habermas, ‘February 15, or What Binds Europe-ans Together: A Plea for a Common Foreign Policy, Beginning in the Heart of Europe’, trans. Max Pensky in The Derrida–Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edinburgh University Press, 2006), 270–7 at 271; and Derrida, ‘Honesty of thought’, 300.

3. For Derrida’s and Habermas’s comments on one another’s works during the last decade, see Jacques Derrida, ‘Intellectual Courage: An Interview’, inter-view by Thomas Assheuer, trans. Peter Krapp, Culture Machine 2 (2000); Jacques Derrida, ‘Performative Powerlessness—A Response to Simon Critch-ley’, in The Derrida–Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edinburgh University Press, 2006), 111–14; Derrida, ‘Honesty of Thought’; and Jürgen Habermas, ‘A Last Farewell: Derrida’s Enlightening Impact’, trans. Marian Hill, in The Derrida–Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edinburgh University Press, 2006), 307–8.

4. Jürgen Habermas, The Philosophical Discourse of Modernity: Twelve Lec-tures, trans. Frederick G. Lawrence (Cambridge: Polity, 1987), 161–210.

5. See, for instance, Jacques Derrida and Michael Wetzel, ‘Erwiderungen/Ant-wort an Apel’, Zeitmitschrift 3 (1987): 76–85 at 76–78.

6. Derrida and Wetzel, ‘Erwiderungen/Antwort an Apel’; Jacques Derrida, Limited Inc, trans. Samuel Weber (Evanston, IL: Northwestern University Press, 1988), 156–58; Jacques Derrida, Memoires for Paul de Man, trans. Peggy Kamuf, 2nd edition (New York: Columbia University Press, 1989), 258–61; and Jacques Derrida, ‘Is There a Philosophical Language?’ trans. Peggy Kamuf, in The Derrida–Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edinburgh University Press, 2006), 35–45.

7. Derrida, ‘Honesty of Thought’, 302. 8. Derrida and Habermas, ‘15 February’, 271. 9. Derrida, ‘Honesty of Thought’, 271; and Jürgen Habermas, ‘America and

the World: A Conversation with Jürgen Habermas’, interview by Eduardo Mendieta, trans. Jeffrey Craig Miller, Logos 3 (2004).

10. For instance, Nancy Fraser, ‘The French Derrideans: Politicizing Deconstruc-tion or Deconstructing Politics’, New German Critique 33 (1984): 127–54; and Seyla Benhabib, ‘Democracy and Difference: Refl ections on the Meta-politics of Lyotard and Derrida’, in The Derrida-Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edinburgh University Press, 2006), 128–56.

148 Notes

11. For instance, Geoffrey Bennington, ‘Ex-Communication’, Social and Politi-cal Thought 5 (2001): 50–55.

12. Christopher Norris, ‘Deconstruction, Postmodernism and Philosophy: Haber-mas and Derrida’, in Derrida: A Critical Reader, ed. David Wood (Oxford: Blackwell, 1992), 167–92.

13. For instance, Richard J. Bernstein, ‘An Allegory of Modernity/Postmoder-nity: Habermas and Derrida’, in The Derrida-Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edinburgh University Press, 2006), 71–97; and Richard Rorty, ‘Habermas, Derrida and the Functions of Philosophy’, in The Derrida–Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edinburgh University Press, 2006), 46–65.

14. Axel Honneth, ‘The Other of Justice: Habermas and the Ethical Challenge of Postmodernism’, trans. James Farrell, in The Cambridge Companion to Habermas, ed. Stephen K. White (Cambridge: Cambridge University Press, 1995), 289–323.

15. For instance, Simon Critchley, ‘Frankfurt Impromptu —Remarks on Derrida and Habermas’, in The Derrida–Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edinburgh University Press, 2006), 98–110. Compare Martin Beck Matuštík, ‘Between Hope and Terror: Habermas and Derrida Plead for the Im/Possible’, in The Derrida–Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edinburgh University Press, 2006), 278–96; and Martin Morris, ‘Between Deliberation and Deconstruction: The Condition of Post-National Democracy’, in The Derrida–Habermas Reader, ed. Lasse Thomassen (Edin-burgh: Edinburgh University Press, 2006), 231–53.

16. Derrida, ‘Honesty of Thought’, 302. 17. Habermas, The Philosophical Discourse of Modernity, 193. 18. Derrida and Wetzel, ‘Erwiderungen/Antwort an Apel’, 78. 19. Derrida, Limited Inc, 157. 20. Fraser, ‘The French Derrideans’, 142–43. 21. Despite the interest in the relationship between Habermas and Derrida, there

have only been few pieces reading Habermas ‘deconstructively’: Bennington, ‘Ex-Communication’; Michael Ryan, Marxism and Deconstruction: A Criti-cal Articulation (Baltimore: Johns Hopkins University Press, 1992), 112–16; and Bonnie Honig, ‘Dead Rights, Live Futures: On Habermas’s Attempt to Reconcile Constitutional Democracy’, in The Derrida–Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edinburgh University Press, 2006), 161– 75. I discuss Honig’s piece in chapter 2.

22. Jacques Derrida, ‘Letter to a Japanese Friend’, trans. David Wood and Andrew Benjamin, in Derrida and Différance, eds. David Wood and Roberto Bernasconi (Evanston: Northwestern University Press, 1988), 1–5 at 5.

23. Ibid. 24. Ludwig Wittgenstein, Philosophical Investigations, 2nd edition, trans. G. E.

M. Anscombe (Oxford: Blackwell, 1958). 25. Jacques Derrida, ‘Interview’, Art Papers (Atlanta) 10, no. 1 (1986): 31–35. 26. Ibid. 27. Jacques Derrida, Positions, trans. Alan Bass, 2nd edition (London: Contin-

uum, 2002), 93. 28. Omid A. Payrow Shabani, Democracy, Power, and Legitimacy: The Critical

Theory of Jürgen Habermas (Toronto: University of Toronto Press, 2003), 147.

29. Ibid., chapter 7. For a more developed critique of Shabani, see Lasse Thomas-sen, ‘Habermas and His Others’, Polity 37, no. 4 (2005): 548–60.

Notes 149

30. Derrida, Positions, 6. We can also characterize this reading as one aiming at the heterogeneity of the text rather than (re)establishing the homogeneity of the text. On this, see Lasse Thomassen, ‘Reading Radical Democracy: A Commentary on Clive Barnett’, Political Geography 24, no. 5 (2005): 631–39.

31. Habermas, ‘A Last Farewell’, 307. 32. Here I am following Derrida’s discussion of justice in Jacques Derrida, ‘Force

of Law: The “Mystical Foundation of Authority’’’, trans. Mary Quaintance, in Deconstruction and the Possibility of Justice, eds. Drucilla Cornell, Michel Rosenfeld, and David G. Carlson (London: Routledge, 1992), 3–67 at 4–5.

33. Jacques Derrida, ‘Hostipitality’, trans. Barry Stocker and Forbes Morlock, in The Derrida–Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edin-burgh University Press, 2006), 208–30.

34. The deconstructive reading of Habermas is incomplete in another and more trivial sense: it does not cover everything that Habermas has said or written, nor does it cover every important topic in his authorship. That is not to say that more work is not necessary, only that, for contingent reasons, you will not fi nd it in this book.

CHAPTER 1

1. Jürgen Habermas, Knowledge and Human Interest, trans. Jeremy J. Shapiro (Cambridge: Polity Press, 1987), 314. The ‘Appendix’, where the quote is from, was fi rst published in 1965.

2. Jürgen Habermas, ‘A Postscript to Knowledge and Human Interest’, trans. Christian Lenhardt, in Knowledge and Human Interest (Cambridge: Polity Press, 1987), 351–80 at 380. The ‘Postscript’ was fi rst published in 1971.

3. Jürgen Habermas, The Theory of Communicative Action: Reason and the Rationalization of Society. Vol. 1, trans. Thomas McCarthy (Cambridge: Polity Press, 1984), 288-94.

4. Jürgen Habermas, ‘From Kant’s “Ideas” of Pure Reason to the “Idealizing” Presuppositions of Communicative Action: Refl ections on the Detranscen-dentalized “Use of Reason”’, trans. Barbara Fultner, in Pluralism and the Pragmatic Turn: The Transformation of Critical Theory: Essays in Honor of Thomas McCarthy, eds. William Rehg and James Bohman (Cambridge, MA: MIT Press, 2001), 11–39 at 13–14.

5. Jürgen Habermas, On the Pragmatics of Social Interaction: Preliminary Studies in the Theory of Communicative Action, trans. Barbara Fultner (Cambridge: Polity Press, 2001), 147.

6. Jürgen Habermas, The Theory of Communicative Action: The Critique of Functionalist Reason. Vol. 2, trans. Thomas McCarthy (Cambridge: Polity Press, 1987), 119ff.

7. Habermas, ‘From Kant’s “Ideas” of Pure Reason to the “Idealizing” Presup-positions of Communicative Action’, 36.

8. On the difference between claims to truth and normative rightness and between the respective discursive vindication of these claims, see Jürgen Habermas, Wahrheit und Rechtfertigung: Philosophische Aufsätze (Frank-furt am Main: Suhrkamp, 1999).

9. Ibid., 48, my translation. 10. Jürgen Habermas, Justifi cation and Application: Remarks on Discourse

Ethics, trans. Ciaran Cronin (Cambridge: Polity Press, 1993), 163. Earlier, Habermas referred to rational discourse with the term ‘ideal speech situation’,

150 Notes

a term he later discarded because it suggests an ideal to be approximated, when in reality it is a counterfactual assumption one makes when entering discourse (even if also a regulative idea). Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge: Polity Press, 1996), 322–23.

11. Hence the discourse principle (D): ‘Just those action norms are valid to which all possibly affected persons could agree as participants in rational discourses’, Habermas, Between Facts and Norms, 107.

12. ‘A performative contradiction occurs when a constative speech act k(p) rests on noncontingent presuppositions whose propositional content contradicts the asserted proposition p.’ Jürgen Habermas, Moral Consciousness and Communicative Action, trans. Christian Lenhardt and Shierry Weber Nich-olson (Cambridge: Polity Press, 1990), 80.

13. See Habermas, The Philosophical Discourse of Modernity. 14. Habermas, ‘From Kant’s “Ideas” of Pure Reason to the “Idealizing” Presup-

positions of Communicative Action’, 35. 15. Ibid., 13. 16. Ibid. 17. Ibid., 15. 18. Ibid., 11–12. 19. Habermas, On the Pragmatics of Social Interaction, 52–62; and Jürgen

Habermas, Texte und Kontexte (Frankfurt am main: Suhrkamp, 1991), 84–90.

20. Jean-François Lyotard, The Postmodern Condition: A Report on Knowl-edge, trans. Geoff Bennington and Brian Massumi (Minneapolis: University of Minnesota Press, 1984), 10.

21. Ibid., xxv, 60–61, 65–66. As far as I am aware, Habermas has not responded to any of Lyotard’s criticisms, and Lyotard is not among the theorists dis-cussed in The Philosophical Discourse of Modernity. However, Habermas’s fellow critical theorists, Seyla Benhabib and Axel Honneth, have criticized Lyotard along the same lines that Habermas criticized other post-structur-alists in The Philosophical Discourse of Modernity. Seyla Benhabib, ‘Epis-temologies of Postmodernism: A Rejoinder to Jean-François Lyotard’, New German Critique 33 (1984): 103–26; Seyla Benhabib, ‘Democracy and Dif-ference: Refl ections on the Metapolitics of Lyotard and Derrida’, in The Derrida–Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edinburgh University Press, 2006), 128–56; and Axel Honneth, ‘The Other of Justice: Habermas and the Ethical Challenge of Postmodernism’, trans. James Far-rell, in The Cambridge Companion to Habermas, ed. Stephen K. White (Cambridge: Cambridge University Press, 1995), 289–323 at 291–97.

22. Lyotard, The Postmodern Condition, 63–64. 23. In The Differend: Phrases in Dispute, trans. Georges Van Den Abbeele (Min-

neapolis: University of Minnesota Press, 1988) Lyotard uses the term ‘phrase regimens’ to refer to language games. For a similar argument against Haber-mas, see Jacques Rancière, Disagreement: Politics and Philosophy, trans. Julie Rose (Minneapolis: University of Minnesota Press, 1998).

24. Nancy Fraser, Justice Interruptus: Critical Refl ections on the ‘Postsocial-ist’ Condition (London: Routledge, 1997), 80–85; and Jürgen Habermas, ‘Further Refl ections on the Public Sphere’, trans. Thomas Burger, in Haber-mas and the Public Sphere, ed. Craig Calhoun (Cambridge, MA: MIT Press, 1992), 421–61 at 424–25. For a defence of Habermas’s theory of the pub-lic sphere against post-structuralist critiques that it cannot contain dissent, see John S. Brady, ‘No contest? Assessing the agonistic critiques of Jürgen

Notes 151

Habermas’s theory of the public sphere’, Philosophy and Social Criticism 30, no. 3 (2004): 331–54.

25. Jürgen Habermas, The Inclusion of the Other: Studies in Political Theory, trans. Ciaran Cronin (Cambridge, MA: MIT Press, 1998), 40.

26. Iris Marion Young, ‘Communication and the Other: Beyond Deliberative Democracy’, in Democracy and Difference: Contesting the Boundaries of the Political, ed. Seyla Benhabib (Princeton, NJ: Princeton University Press, 1996), 120–35 at 123. Compare her critique of Habermas and the norm of impartiality in Justice and the Politics of Difference (Princeton, NJ: Princeton University Press, 1990), chapter 4. Lincoln Dahlberg uses Young to defend the Habermasian, deliberative take on the public sphere in ‘The Habermasian Public Sphere: Taking Difference Seriously?’ Theory and Society 34, no. 2 (2005): 111–36.

27. Young, ‘Communication and the Other’, 123. 28. Ibid., 125. 29. Young, Inclusion and Democracy, chapter 2; and Iris Marion Young, ‘Activ-

ist Challenges to Deliberative Democracy’, Political Theory 29, no. 5 (2001): 670–90.

30. Young, Inclusion and Democracy, 42–44. 31. Ibid., 38. 32. Ibid., 110. 33. Ibid., 12. 34. Ibid., 114. 35. Chantal Mouffe, The Democratic Paradox (London: Verso, 2000), 48. 36. Habermas, The Inclusion of the Other, 51–54, 56–59. 37. Mouffe, The Democratic Paradox, 88. 38. Ibid., 49. 39. Ibid., 48–49. 40. Chantal Mouffe, The Return of the Political (London: Verso, 1993), 77. On

the limitations of the argument about antagonism, see Lasse Thomassen, ‘Discourse Analytical Strategies: Antagonism, Hegemony and Ideology after Heterogeneity’, Journal of Political Ideologies 10, no. 3 (2005): 289–309.

41. Mouffe, The Democratic Paradox, 98. 42. Quoted in Mouffe, The Democratic Paradox, 98. The quote is from Ludwig

Wittgenstein, Philosophical Investigations, 2nd edition, trans. G. E. M. Ans-combe (Oxford: Blackwell, 1958), 46 (§107).

43. On the political implications of consensual politics in its empirical forms, see Chantal Mouffe, On the Political (London: Routledge, 2005).

44. For both views, see for instance Jürgen Habermas, Vorstudien und Ergän-zerungen zur Theorie des kommunikativen Handelns (Frankfurt am Main: Suhrkamp, 1984), 125, 179–80.

45. Habermas, Justifi cation and Application, 145, 164. 46. Habermas, The Theory of Communicative Action: Vol. 1, 42. 47. Habermas, The Philosophical Discourse of Modernity, 325. 48. Jürgen Habermas, ‘What Is Universal Pragmatics?’ in Communication and

the Evolution of Society, trans. Thomas McCarthy (London: Heinemann, 1979), 1–68 at 2–3; and Habermas, Between Facts and Norms, 322–23.

49. See Habermas, ‘From Kant’s “Ideas” of Pure Reason to the “Idealizing” Pre-suppositions of Communicative Action’, 35.

50. Jürgen Habermas, ‘Reply to Symposium Participants’, Cardozo Law Review 17, no. 4–5 (1996): 1477–557 at 1518.

51. Habermas, On the Pragmatics of Communication, 365. Habermas is quoting from Albrecht Wellmer, Endgames: Essays and Lectures on the Irreconcilable

152 Notes

Nature of Modernity, trans. David Midgley (Cambridge, MA: MIT Press, 1998), 141. See also Albrecht Wellmer, ‘Ethics and Dialogue: Elements of Moral Judgement in Kant and Discourse Ethics’, in The Persistence of Modernity: Essays on Aesthetics, Ethics and Postmodernism, trans. David Midgley (Cambridge: Polity Press, 1991), 113–231. For the same point, see Mark Devenney, Ethics and Politics in Contemporary Theory: Between Crit-ical Theory and Post-Marxism (London: Routledge, 2004), 138–39; and, in relation to Habermas’s theory of democracy, Omid A. Payrow Shabani, Democracy, Power, and Legitimacy: The Critical Theory of Jürgen Haber-mas (Toronto: University of Toronto Press, 2003), 149–50.

52. As Habermas notes in Zwischen Naturalismus und Religion: Philosophische Aufsätze (Frankfurt am Main: Suhrkamp, 2005), 48.

53. Jacques Derrida, ‘Force of Law: The ‘Mystical Foundation of Authority’’, trans. Mary Quaintance, in Deconstruction and the Possibility of Justice, eds. Drucilla Cornell, Michel Rosenfeld, and David G. Carlson (London: Routledge, 1992), 3–67 at 16.

54. Robert W. T. Martin, ‘Between Consensus and Confl ict: Habermas, Post-Modern Agonism and the Early American Public Sphere’, Polity 37, no. 3 (2005): 365–88 at 368 and 388.

55. John S. Dryzek and Simon Niemeyer, ‘Reconciling Pluralism and Consensus as Political Ideals’, American Journal of Political Science 50, no. 3 (2006): 634–49.

56. Patchen Markell, ‘Contesting Consensus: Rereading Habermas on the Public Sphere’, Constellations 3, no. 3 (1997): 377–400, at 391–94.

57. Brady, ‘No contest?’ 58. Geoffrey Bennington, ‘Ex-Communication’, Studies in Social and Political

Thought 5 (2001), 50–55 at 53–54. Bennington also highlights the opacity of intentions and the impossibility of establishing the meaning of validity claims exactly.

59. Michel Foucault, ‘On the Genealogy of Ethics: An Overview of Work in Prog-ress’, in The Foucault Reader, ed. Paul Rabinow (London: Penguin, 1984), 340–72 at 343.

60. Bennington, ‘Ex-Communication’, 54. 61. William E. Connolly, Why I Am Not a Secularist (Minneapolis: University of

Minnesota Press, 1999), 38. 62. William E. Connolly, The Ethos of Pluralization (Minneapolis: University of

Minnesota Press, 1995), 104. 63. This is the context of Derrida’s rejection of the performative contradiction

argument. Jacques Derrida, Monolingualism of the Other; or, The Prosthesis of Origin, trans. Patrick Mensah (Stanford, CA: Stanford University Press, 1996), 2–6.

64. On the ideological function of the ‘as if’, see Eric O. Clarke, Virtuous Vice: Homoeroticism and the Public Sphere (Durham, NC: Duke University Press, 2000), 69–85.

65. Here I am following Geoffrey Bennington, ‘For the Sake of Argument (Up to a Point)’, Ratio Juris 13, no. 4 (2000): 332–45 at 341–42.

66. Habermas, On the Pragmatics of Communication, 365–66. 67. Jürgen Habermas, ‘A Short Reply’, Ratio Juris 12, no. 4 (1999): 445–53 at

446, my emphasis. 68. Similarly for some of Habermas’s sympathetic interpreters: Dahlberg, ‘The

Habermasian Public Sphere’, 127–28; Markell, ‘Contesting Consensus’, 390–91; William Rehg and James Bohman, ‘Discourse and Democracy: The

Notes 153

Formal and Informal Bases of Legitimacy in Between Facts and Norms’, in Discourse and Democracy: Essays on Habermas’s Between Facts and Norms, eds. René von Schomberg and Kenneth Baynes (Albany: State University of New York Press, 2002), 31–60 at 43–52.

69. Habermas, ‘Further Refl ections on the Public Sphere’, 445; Habermas, Between Facts and Norms, 21, 324; and Habermas, On the Pragmatics of Communication, 316.

70. Habermas, ‘From Kant’s “Ideas” of Pure Reason to the “Idealizing” Presup-positions of Communicative Action’, 29.

71. Wellmer, Endgames, 139. 72. Habermas, On the Pragmatics of Communication, 368. 73. Derrida, ‘Force of Law’, 27. 74. See, for instance, Habermas, ‘From Kant’s “Ideas” of Pure Reason to the

“Idealizing” Presuppositions of Communicative Action’, 21–26. Cf. also Young’s and Mouffe’s respective criticisms of Habermas above.

75. For Derrida and the ‘yes’, see Rodolphe Gasché, Inventions of Difference: On Jacques Derrida (Cambridge, MA: Harvard University Press, 1994), 225–26, 239–50.

76. Habermas, The Philosophical Discourse of Modernity, 409, note 28. 77. Gasché, Inventions of Difference, 127. 78. Habermas, ‘What Is Universal Pragmatics?’ 1–25; and Habermas, Moral

Consciousness and Communicative Action, 1–42. 79. Habermas, Moral Consciousness and Communicative Action, 31. Habermas

often focuses on practices of argumentation. This is not because argumen-tation has ontological primacy over other forms of symbolic communica-tion. Argumentation is just one form of communication among others, but he believes it is easier to discern the transcendental presuppositions of all communication in practices of argumentation.

80. Habermas, Moral Consciousness and Communicative Action, 15. 81. Ibid., 31–41. 82. Ibid., 40. 83. Habermas, Texte und Kontexte, 155, my translation. 84. Thomas McCarthy, The Critical Theory of Jürgen Habermas (London:

Hutchinson, 1978), 279. 85. Habermas, Knowledge and Human Interest, 311. 86. Habermas, ‘A Postscript to Knowledge and Human Interest;’ and Jürgen

Habermas, ‘Nach dreißig Jahren: Bemerkungen zu Erkenntnis und Interesse’, in Das Interesse der Vernunft, ed. Stefan Müller-Doohm (Frankfurt am Main: Suhrkamp, 2000), 12–20.

87. This is how Habermas announces the paradigm shift from a philosophy of consciousness to a philosophy of language: ‘Today the problem of language has replaced the traditional problem of consciousness; the transcendental cri-tique of language supersedes that of consciousness.’ Jürgen Habermas, Zur Logik der Sozialwissenschaften (Frankfurt am Main: Suhrkamp, 1970), 220, quoted in McCarthy, The Critical Theory of Jürgen Habermas, 273.

88. For Habermas on this, see Habermas, ‘From Kant’s “Ideas” of Pure Reason to the “Idealizing” Presuppositions of Communicative Action’, 24.

89. Habermas, Moral Consciousness and Communicative Action, 32. 90. Habermas, The Inclusion of the Other, 72. 91. See especially Jacques Derrida, Limited Inc, trans. Samuel Weber (Evanston,

IL: Northwestern University Press, 1988).

154 Notes

CHAPTER 2

1. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge, MA: MIT Press, 1996), 120.

2. Ibid., 104, 127–28; Jürgen Habermas, The Inclusion of the Other: Studies in Political Theory, trans. Ciaran Cronin (Cambridge: Polity Press, 1998), chapter 10; Jürgen Habermas, ‘Constitutional Democracy: A Paradoxical Union of Contradictory Principles?’, trans. William Rehg, Political Theory 29, no. 6 (2001): 766–81; and Jürgen Habermas, ‘On Law and Disagreement. Some Comments on “Interpretative Pluralism”’, Ratio Juris 16, no. 2 (2003): 187–94.

The relationship between constitutionalism and democracy is of course not a new problem or a problem confi ned to Habermas’s work. For instance, Habermas himself traces it back to a discussion of Rousseau and Kant (Between Facts and Norms, 100ff; The Inclusion of the Other, chapter 10), and he engages in discussions with contemporaries such as Frank I. Michelman and Jeremy Waldron on just this question (Between Facts and Norms, 100, 267ff; ‘Constitutional Democracy;’ and ‘On Law and Disagreement’). For a good reconstruction of the debate between Habermas and Michelman and a defence of Habermas in this context, see Ciaran Cronin, ‘On the Possi-bility of a Democratic Constitutional Founding: Habermas and Michelman in Dialogue’, Ratio Juris 19, no. 3 (2006): 343–69. For a useful discussion of Habermas in relation to Rousseau and Kant on the relationship between constitutionalism and democracy, see Ingeborg Maus, ‘Liberties and Popular Sovereignty: On Habermas’s Reconstruction of the System of Rights’, in Dis-course and Democracy: Essays on Habermas’s Between Facts and Norms, eds. René von Schomberg and Kenneth Baynes (Albany: State University of New York Press, 2002), 89–128.

3. Habermas, ‘Constitutional Democracy’, 772. 4. Ibid., 767. 5. Habermas, Between Facts and Norms, 449. 6. Ibid., 110. 7. Ibid., 121ff. 8. ‘At least in theory’ because constitutional and procedural questions need not

be the subject of day-to-day discourses and decisions. Ultimately, however, validity—including the validity of the “system of rights”—is rooted in actual consent, not in thought experiments or in the observer perspective of the rational reconstructor.

9. Habermas, ‘Constitutional Democracy’, 779. 10. Ibid., 771. 11. Given Habermas’s view that the constitution is not given once and for all, the

distinction between constitution making and interpretation of the constitu-tion is blurred.

12. This part of my argument is inspired by Alan Keenan’s excellent Democracy in Question: Democratic Openness in a Time of Political Closure (Stanford, CA: Stanford University Press, 2003), especially chapters 1 and 2.

13. Seyla Benhabib, ‘Democracy and Difference: Refl ections on the Metapolitics of Lyotard and Derrida’, in The Derrida-Habermas Reader, ed. Lasse Thom-assen (Edinburgh: Edinburgh University Press, 2006), 128–56 at 131, 139, and 140–41.

Notes 155

14. Frank I. Michelman, ‘Constitutional Authorship’, in Constitutionalism: Philosophical Foundations, ed. Larry Alexander (Cambridge: Cambridge University Press, 1998), 64–98.

15. Habermas, Between Facts and Norms, 462; and Habermas, ‘On Law and Disagreement’, 187.

16. Habermas, ‘Constitutional Democracy’, 768. 17. Ibid., 774. 18. Ibid. 19. Ibid. 20. Bonnie Honig, ‘Dead Rights, Live Futures: On Habermas’s Attempt to Rec-

oncile Constitutional Democracy’, in The Derrida–Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edinburgh University Press, 2006), 161–75.

21. For a related critique of Habermas, albeit with somewhat different conclu-sions, see Paulina Ochoa-Espejo, The Time of the People: Popular Sovereinty and Process in the Democratic State (MS), chapter 1.

22. Habermas, ‘On Law and Disagreement’, 192. 23. Alessandro Ferrara, ‘Of Boats and Principles: Refl ections on Habermas’s

“Constitutional Democracy”’, Political Theory 29, no. 6 (2001): 782–91. 24. Habermas, ‘On Law and Disagreement’, 189. 25. Ibid., 194. 26. Habermas, ‘Constitutional Democracy’, 775. 27. Ciaran Cronin interprets Habermas as merely stating that future generations

must only share the (performative) meaning of the founders’ constitutional clauses expressed in terms of the categories of rights of the system of rights, categories that are therefore not imposed on subsequent generations. Cro-nin, ‘On the Possibility of a Democratic Constitutional Founding’, 362–64. Still, the meaning of the founders’ constitutional clauses needs to be speci-fi ed, however ‘thin’ the required level of commonality between founders and subsequent generations.

28. Habermas, ‘Constitutional Democracy’, 774. 29. Honig, ‘Dead Rights, Live Futures’, 164. 30. Habermas, ‘Constitutional Democracy’, 774–75. 31. In his defence of Habermas, Cronin (‘On the Possibility of a Democratic

Constitutional Founding’, 365) writes that ‘the demos as the putative ‘sub-ject’ of democratic political self-constitution is always also a retrospective construct, an indispensable, though imaginary, projection’. With a term I return to below, we might say that it is a fi ction that posits agreement and commonality where they are absent.

32. Habermas, ‘Constitutional Democracy’, 777. 33. David Ingram, ‘Novus Ordo Seclorum: The Trial of (Post)Modernity or

the Tale of Two Revolutions’, in Hannah Arendt Twenty Years Later, eds. Larry May and Jerome Kohn (Cambridge, MA: MIT Press, 1996), 221–50 at 238ff.

34. Habermas, ‘On Law and Disagreement’, 193. 35. Ibid. 36. Ibid., 193. 37. Ibid., 192. 38. Habermas, Between Facts and Norms, 128. 39. Honig, ‘Dead Rights, Live Futures’, 165–66. 40. For what constitutionalism may look like in the face of disagreement all the

way down, as well as the problems of imposing constitutional consensus on diversity, see James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995).

156 Notes

41. Cornelius Castoriadis, The Imaginary Institution of Society, trans Kathleen Blamey (Cambridge, MA: MIT Press, 1987), 187–96.

42. Jacques Derrida, Specters of Marx: The State of the Debt, the Work of Mourning, & the New International, trans. Peggy Kamuf (London: Rout-ledge, 1994), 64–65.

43. Ibid., 28, 64–65. 44. Habermas, ‘On Law and Disagreement’, 192. 45. Habermas, The Inclusion of the Other, 255. 46. Jacques Derrida, ‘Declarations of Independence’, in Negotiations: Interven-

tions and Interviews, 1971–2001, ed. Elizabeth Rottenberg, trans. Tom Keenan and Tom Pepper (Stanford, CA: Stanford University Press, 2002), 46–54 at 50. Derrida is writing about the foundation of a republic, not about constitutionalism and democracy, but his argument is analogous to the one I am making here. See also Jacques Derrida, ‘The Laws of Refl ection: Nelson Mandela, in Admiration’, trans. Mary Ann Caws and Isabelle Lorenz, in For Nelson Mandela, eds. Jacques Derrida and Mustapha Tlili (New York: Seaver Books, 1987), 11–42; and, for a succinct summary of Derrida’s argu-ment, Noah Horwitz, ‘Derrida and the Aporia of the Political, or The Theo-logico-Political Dimension of Deconstruction’, Research in Phenomenology 32, no. 1 (2002): 156–76.

47. Jacques Derrida, Limited Inc, trans. Samuel Weber (Evanston, IL: North-western University Press, 1988).

48. Derrida, ‘Declarations of Independence’, 49. 49. Jacques Derrida, Margins of Philosophy, trans. Alan Bass (London: Har-

vester Wheatsheaf, 1982), 1–27. On the out-of-joint-ness of democracy, see Derrida, Specters of Marx.

50. Bonnie Honig, Political Theory and the Displacement of Politics (Ithaca, NY: Cornell University Press, 1993), 106.

51. Habermas, ‘Constitutional Democracy’, 776, my emphases. Similarly, with reference to Habermas among others, Sofi a Näsström, argues that democ-racy needs to supplement its factual history with a normative fi ction in order to work (Sofi a Näsström, ‘What Globalization Overshadows’, Political The-ory 31, no. 6 (2003): 808–34 at 819–21). Here I would only add, that the fi ction does not need to be normative (if we by that understand something opposed to factual), but can also be a certain description of history as seen in the case of Habermas’s rendition of US constitutional history referred to above (Habermas, ‘Constitutional Democracy’, 774–75). For Habermas, it is important to show how the fi ction of freedom and equality is inherent to certain historical structures, including modern constitutional democracy so that there is an inherent relation ‘between facts and norms’.

52. Derrida, ‘Declarations of Independence’, 50. 53. See, for instance, the long quote on page 52–53, where Habermas uses the ‘if’

in this way. 54. For the same argument in the context of Habermas’s theory of the public

sphere, see Eric O. Clarke, Virtuous Vice: Homoeroticism and the Public Sphere (Durham, NC: Duke University Press, 2000), chapter 1.

55. Habermas, ‘Constitutional Democracy’, 778. 56. Ibid., 776. 57. Ibid., 777. 58. Ibid., 778. For Habermas’s critique of Rawls, see The Inclusion of the Other,

51–59. 59. For a defence of Habermas, see Cronin, ‘On the Possibility of a Democratic

Constitutional Founding’, 352–53.

Notes 157

60. I have identifi ed a ‘paradox’ of constitutional democracy in Habermas’s texts, and I am interested in how Habermas deals with it. My hypothesis—which I have to some extent assumed without exploring it further—is that the para-dox is a general trait of constitutional democracy, an impression one would also get from just a cursory glance at the literature in the fi eld. However, one should avoid conceiving of the paradox as a hard, transcendental structure, which is merely refl ected and discovered in different texts.

61. Habermas, ‘Constitutional Democracy’, 770. 62. Benhabib, ‘Democracy and Difference’, 140; and Ingram, ‘Novus Ordo Seclo-

rum’, 245. 63. On this, see the discussion of democracy in chapter 4. See also Jacques Der-

rida, Rogues: Two Essays on Reason, trans. Pascale-Anne Brault and Michael Naas (Stanford, CA: Stanford University Press, 2005), part I; and Keenan, Democracy in Question, Introduction and chapter 1.

64. Honig, ‘Dead Rights, Live Futures’, 169. 65. Ibid., 170. 66. Ibid., 168. 67. Ibid., 170. By contrast, Chantal Mouffe thinks that Habermas prioritizes

democracy over constitutionalism. The Democratic Paradox (London: Verso, 2000), 8.

68. Honig, ‘Dead Rights, Live Futures’, 170. 69. Ibid., 168-9. 70. Compare ibid., 170. 71. Derrida, Margins of Philosophy, 310. 72. Honig, ‘Dead Rights, Live Futures’, 162. 73. Chantal Mouffe (The Democratic Paradox, 1–11) argues that constitutional

democracy is situated at the crossroad of two historical traditions—liberal-ism and democracy—that are only contingently articulated and that consti-tutional democracy is therefore not a natural and non-paradoxical union of the two principles.

74. Ibid., 170. 75. Derrida, ‘Declarations of Independence’. 76. Honig, Political Theory and the Displacement of Politics, chapter 4. Simi-

larly Keenan, Democracy in Question, chapter 2. 77. Honig, Political Theory and the Displacement of Politics, 120–25. 78. Keenan, Democracy in Question, 212–13. For a recent defence of Arendt on

democracy as ‘people-rule’, see Patchen Markell, ‘The Rule of the People: Arendt, Archê, and Democracy’, American Political Science Review 100, no. 1 (2006): 1–14.

79. Quoted from the earlier version of Honig’s essay: ‘Dead Rights, Live Futures: A Reply to Habermas’s “Constitutional Democracy”’, Political Theory 29, no. 6 (2001): 792–805 at 792.

80. Ibid., 792–93, 801. Keenan (Democracy in Question, 2) makes a similar mis-take, I think, when he writes: ‘Doubts about whether the people can really be said to rule in the United States were raised with unusual vigor and visibility after the presidential election of 2000, when the results of the undemocratic Electoral College trumped those of the majority of the voters.’ Why, we must ask, is the Electoral College ‘undemocratic’ as opposed to ‘the majority of the voters’? What is democratic and undemocratic is precisely what is at stake here, which is also one of Keenan’s main points in his book. In the case of US constitutional and electoral law, ‘democratic’ has unfortunately been defi ned as the majority in the Electoral College. What remains to be done for those

158 Notes

of us who do not agree with this defi nition is to redescribe ‘democratic’ and ‘undemocratic’ to suit our interests, values, and principles.

81. Keenan, Democracy in Question, 213, note 21. 82. Honig, ‘Dead Rights, Live Futures,’ 171. 83. Näsström, ‘What Globalization Overshadows’, 829. 84. Habermas, ‘On Law and Disagreement’, 192.

CHAPTER 3

1. Jürgen Habermas, ‘Religious Tolerance—The Pacemaker for Cultural Rights’, in The Derrida–Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edin-burgh University Press, 2006), 195–207 at 197. For Habermas on tolerance, see Jürgen Habermas, ‘Fundamentalism and Terror—A Dialogue with Jürgen Habermas’, trans. Luis Guzman, in Giovanna Borradori, Philosophy in a Time of Terror (Chicago: University of Chicago Press, 2003), 25–43 at 40–2; Jürgen Habermas, ‘Intolerance and Discrimination’, International Journal of Constitutional Law 1, no. 1 (2003): 2–12; Jürgen Habermas, ‘On the Rela-tion between the Secular Liberal State and Religion’, trans. Matthias Fritsch, in The Frankfurt School on Religion: Key Writings by the Major Thinkers, ed. Eduardo Mendieta (New York: Routledge, 2005), 339–48 at 347–48; Jürgen Habermas, ‘Equal Treatment of Cultures and the Limits of Postmod-ern Liberalism’, The Journal of Political Philosophy 13, no. 1 (2005): 1–28; and Jürgen Habermas, ‘Religion in the Public Sphere’, European Journal of Philosophy 14, no. 1 (2006): 1–25. There is a considerable element of overlap between these texts, and I shall primarily make references to ‘Religious Toler-ance’ and ‘Religion in the Public Sphere.’ For a useful discussion of Haber-mas’s earlier and related work on inclusion in Between Facts and Norms and The Inclusion of the Other, see Pauline Johnson, ‘Discourse Ethics and the Normative Justifi cation of Tolerance’, Critical Horizons 1, no. 2 (2000): 281–305.

2. Habermas, ‘Religious Tolerance’, 198. 3. Habermas, ‘Fundamentalism and Terror’, 40. 4. Karl-Otto Apel, ‘Plurality of the Good? The Problem of Affi rmative Toler-

ance in a Multicultural Society from an Ethical Point of View’, Ratio Juris 10, no. 2 (1997): 199–212; James Bohman, ‘Deliberative Toleration’, Politi-cal Theory 31, no. 6 (2003): 757–79; Rainer Forst, ‘The Limits of Toleration’, Constellations 11, no. 3 (2004): 312–25; and Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Cambridge, MA: Harvard Uni-versity Press, 1996), 60–63.

5. For an illuminating example of this debate in relation to tolerance, see Wil-liam A. Galston, ‘Diversity, Toleration, and Deliberative Democracy: Reli-gious Minorities and Public Schooling’, in Deliberative Politics: Essays on Democracy and Disagreement, ed. Stephen Macedo (Oxford: Oxford Uni-versity Press, 1999), 39–48; and Amy Gutmann and Dennis Thompson, ‘Democratic Disagreement’, in Deliberative Politics: Essays on Democracy and Disagreement, ed. Stephen Macedo (Oxford: Oxford University Press, 1999), 243–80 at 251–53.

6. Habermas, ‘Intolerance and Discrimination’, 5–6. 7. Habermas, ‘Fundamentalism and Terror’, 41, translation modifi ed (the Eng-

lish has ‘straight deconstruction’ for ‘vollständige Dekonstruktion’). Forst (‘The Limits of Toleration’, 314) makes the same point in relation to Stan-ley Fish, ‘Mission Impossible: Settling the Just Bounds between Church and

Notes 159

State’, Columbia Law Review 97, no. 8 (1997): 2255–333. In another, but related context (‘Equal Treatment of Cultures and the Limits of Postmodern Liberalism’, 5–13), Habermas criticizes Christoph Menke’s ‘deconstruction’ of the liberal ideal of equality, although he also distinguishes Menke’s from Derrida’s deconstruction.

8. For Derrida on hospitality, see Jacques Derrida, Adieu to Emmanuel Levi-nas, trans. Pascale-Anne Brault and Michael Naas (Stanford,CA: Stanford University Press, 1999); Jacques Derrida, Of Hospitality: Anne Dufourman-telle Invites Jacques Derrida to Respond, trans. Rachel Bowlby (Stanford, CA: Stanford University Press, 2000); Jacques Derrida, ‘On Cosmopolitan-ism’, trans. Mark Dooley, in On Cosmopolitanism and Forgiveness (Lon-don: Routledge, 2001), 3–24; Jacques Derrida, ‘Autoimmunity: Real and Symbolic Suicides—A Dialogue with Jacques Derrida’, in Giovanni Borra-dori, Philosophy In a Time of Terror: Dialogues with Jürgen Habermas and Jacques Derrida (Chicago: University of Chicago Press, 2003), 85–136 at 126–30; Jacques Derrida, ‘Hostipitality’, trans. Gil Anidjar, in Acts of Reli-gion, ed. Gil Anidjar (London: Routledge, 2002), 358–420; Jacques Derrida, ‘The Principle of Hospitality’, Parallax 11, no. 1 (2005): 6–9; and Jacques Derrida, ‘Hostipitality’, trans. Barry Stocker and Forbes Morlock, in The Derrida–Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edinburgh University Press, 2006), 208–30. For a good summary, see Michael Naas, ‘Hospitality as an Open Question: Deconstruction’s Welcome Politics’, in Taking on the Tradition: Jacques Derrida and the Legacies of Deconstruc-tion (Stanford, CA: Stanford University Press, 2003), 154–69.

9. Here it may be noted that, in his political philosophy in general and in his writings on tolerance in particular, Habermas often draws upon Rawls, although with some modifi cations. Civil disobedience, which is the subject of the next chapter, provides another example of Habermas’s use of Rawls.

10. Jürgen Habermas, The Inclusion of the Other: Studies in Political Theory, trans. Ciaran Cronin (Cambridge: Polity Press, 1998), 40; and Jürgen Haber-mas, The Postnational Constellation: Political Essays, trans. Max Pensky (Cambridge: Polity, 2001), 19.

11. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge: Polity Press, 1996), 159–64, 565 note 3.

12. Ibid., 309. 13. Habermas, The Inclusion of the Other, 99–100. 14. Habermas, Between Facts and Norms, 104–18; Habermas, The Inclusion of

the Other, chapter 8; and, for the latest formulation, Jürgen Habermas, ‘The Moral and the Ethical: A Reconsideration of the Issue of the Priority of the Right Over the Good’, trans. William Rehg, in Pragmatism, Critique, Judg-ment: Essays for Richard J. Bernstein, eds. Seyla Benhabib and Nancy Fraser (Cambridge, MA: MIT Press, 2004), 29–43.

15. Habermas, The Inclusion of the Other, 118, 224–26. 16. Habermas, The Postnational Constellation, 73. 17. Habermas, The Inclusion of the Other, 229. 18. Habermas, ‘Fundamentalism and Terror’, 41. 19. Habermas, ‘Religious Tolerance’, 197, 200. 20. Jürgen Habermas, ‘Reply to Symposium Participants’, Cardozo Law Review

17, no. 4 (1996): 1477–557 at 1505, my emphases. 21. Habermas, Between Facts and Norms, 445–46. 22. Habermas, The Inclusion of the Other, 223. 23. Ibid., 223–24.

160 Notes

24. Habermas, ‘Fundamentalism and Terror’, 31. 25. Jürgen Habermas, Justifi cation and Application: Remarks on Discourse

Ethics, trans. Ciaran Cronin (Cambridge: Polity Press, 1993), 59–60. 26. Habermas, Between Facts and Norms, 154. 27. Ibid., 155–56. 28. Ibid., 157. 29. Habermas, The Inclusion of the Other, 144. 30. Ibid., 225 (my emphasis) and 220 (emphasis in German original). 31. Habermas, ‘Reply to Symposium Participants’, 1498. ‘Lost’ is here the trans-

lation of aufl ösen, which could be rendered more directly ‘dissolved’. 32. Habermas, ‘Religious Tolerance’, 197 (and 198). 33. Ibid., 197. 34. Ibid. 35. Derrida, ‘Autoimmunity’, 94ff; and, in relation to hospitality, Derrida,

‘Hostipitality’, 211. 36. Jacques Derrida, ‘The Last Interview’, Studio Visit (2004), 15 at http://www.

studiovisit.net/SV.Derrida.pdf. 37. Jacques Derrida, Rogues: Two Essays on Reason, trans. Pascale-Anne Brault

and Michael Naas (Stanford, CA: Stanford University Press, 2005), 33. 38. See Derrida’s critique of François Mitterand’s use of this metaphor in ‘Auto-

immunity’, 128. 39. Derrida, Rogues, 34. 40. Derrida, Of Hospitality, 81. 41. Habermas, ‘Religious Tolerance’, 197. 42. Habermas, ‘Intolerance and Discrimination’, 3. Compare Reiner Grundmann

and Christos Mantziaris’s insightful critique of Habermas, which—because and despite of its Luhmannian perspective—has several points in common with the one put forward here, in ‘Fundamentalist Intolerance or Civil Dis-obedience? Strange Loops in Political Theory’, Political Theory 19, no. 4 (1991): 572–605. At this point, it might be objected that Habermas may tol-erate the inclusion of fundamentalist discourses without having to tolerate fundamentalist practices or policies (if such a distinction is possible). In a sense, this is what he does when accepting anti-abortionist discourses but not the imposition of anti-abortionist policies across society. (Interestingly, he is, as far as I am aware, silent on this when it comes to Nazis.) Importantly, he accepts antiabortionist discourses as ethical discourses. In other words, these discourses are tolerated and included within deliberations but barred from winning the argument qua ethical reasons because their arguments have been discredited from the very beginning. A distinction between discourses (qua fundamentalist expressions) and policies would not get Habermas off the hook, because it would affect the equal status of individuals within deliberations.

43. Habermas, ‘Religious Tolerance’, 202. 44. The problem may be described in terms of Derrida’s notion of supplementar-

ity, cf. Jacques Derrida, Of Grammatology, trans. Gayatri Chakravorty Spi-vak, 2nd edition (Baltimore: Johns Hopkins Press, 1997), 141–57, 295–316.

45. Habermas, ‘Religious Tolerance’, 196. 46. Ibid., 204; Habermas, ‘Intolerance and Discrimination’, 4–8; and Haber-

mas, ‘Equal Treatment of Cultures and the Limits of Postmodern Liberalism’, 24– 28. See Habermas, ‘Religion in the Public Sphere’, 9, for an important qualifi cation: ethical worldviews are more exposed to discursive reason.

47. Habermas, ‘On the Relation between the Secular Liberal State and Religion’, 346–47.

http://www.studiovisit.net/SV.Derrida.pdf


Notes 161

48. Habermas, ‘Intolerance and discrimination’, 6. For Habermas’s use of Piaget and Kohlberg, see Jürgen Habermas, Moral Consciousness and Communica-tive Action, trans. Christian Lenhardt and Shierry Weber Nicholson (Cam-bridge: Polity, 1990), 33–41. However, see Habermas, ‘Religion in the Public Sphere’, 18–19 for an important qualifi cation that I return to below. Haber-mas is well aware that contemporary developments may give the impression that (European) secularism is in fact the exception today. Habermas, ‘Reli-gion in the Public Sphere’, 2.

49. Habermas, ‘Religion in the Public Sphere’, 14. 50. Habermas, ‘Equal Treatment of Cultures and the Limits of Postmodern Lib-

eralism’, 28, my emphasis. 51. Jürgen Habermas, ‘A Conversation about God and the World: Interview with

Eduardo Mendieta’, trans. Max Pensky, in Religion and Rationality: Essays on Reason, God, and Modernity, ed. Eduardo Mendieta (Cambridge: Polity Press, 2002), 147–67 at 150; and Habermas, ‘Fundamentalism and Terror’, 31.

52. Habermas, ‘Religion in the Public Sphere’, 8–9. See, for instance, his com-ments on the French head scarf case and his critique of current French laïcité in Habermas, ‘Religious Tolerance’, 203.

53. Habermas, ‘Religion in the Public Sphere’, 5 and 10. This text is the most important for Habermas’s views on the role of ‘translation’. For Habermas’s view of the relative roles of religion and philosophical reason in the context of a discussion of Kant’s philosophy of religion, see also Jürgen Habermas, Zwischen Naturalismus und Religion: Philosophische Aufsätze (Frankfurt am Main: Suhrkamp, 2005), chapter 8. See especially page 249 on the role of philosophy as ‘translator’ of religious insight.

54. For an excellent analysis of the marginalisation of the religious in Habermas’s earlier work, see Brian J. Shaw, ‘Habermas and Religious Inclusion: Lessons from Kant’s Moral Theology’, Political Theory 27, no. 5 (1999): 634–66.

55. Habermas, ‘Equal Treatment of Cultures and the Limits of Postmodern Lib-eralism’, 27.

56. See ibid., 9. 57. Habermas, ‘Religion in the Public Sphere’, 14. 58. Ibid., 15. 59. Ibid., 18. 60. Ibid., 19. 61. Space does not allow me to go into detail concerning the relationship between

equality and tolerance. For an argument related to equality close to mine, see Christoph Menke, Refl ections of Equality, trans. Howard Rouse and Andrei Denejkine (Stanford, CA: Stanford University Press, 2006), part I.

62. This is also the argument of Derrida’s most important engagement with law and justice in Jacques Derrida, ‘Force of Law: The “Mystical Foundation of Authority”’, trans. Mary Quaintance, in Deconstruction and the Possibility of Justice, eds. Drucilla Cornell, Michel Rosenfeld, and David G. Carlson (London: Routledge, 1992), 3–67, especially 17.

63. We might think of tolerance as a relation of representation. On this, see Lasse Thomassen, ‘“A Basic Closure of Perspective”? Reply to Robinson and Tormey’, Parliamentary Affairs 60, no. 1 (2007): 138–42.

64. Derrida, ‘Hostipitality’, 223. 65. Here I am following Derrida, ‘Hostipitality.’ 66. Derrida, ‘On Cosmopolitanism’, 17. 67. Fish, ‘Mission Impossible’, 2256. Similarly Derrida, ‘Hostipitality’, 213–16. 68. Fish, ‘Mission Impossible’, 2324.

162 Notes

69. Derrida, Rogues, 60. 70. Derrida, ‘Autoimmunity’, 127ff. Compare Jacques Derrida, ‘Faith and

Knowledge: The Two Sources of “Religion” at the Limits of Reason Alone’, trans. Samuel Weber, in Acts of Religion, ed. Gil Anidjar (London: Rout-ledge, 2002), 40–101 at 59–60.

71. Patchen Markell, Bound by Recognition (Princeton, NJ: Princeton University Press, 2003).

72. Ibid., 188. 73. Ibid. 74. Ibid. For a similar argument for ‘acknowledgement’ inspired by Derrida and

Emmanuel Levinas, see Clive Barnett, ‘Ways of relating: hospitality and the acknowledgement of otherness’, Progress in Human Geography 29, no. 1 (2005): 5–21, especially 17–20.

75. David Campbell, National Deconstruction: Violence, Identity, and Justice in Bosnia (Minneapolis: University of Minnesota Press, 1998), 205–6.

76. I cannot resist the temptation of a reductive explanation of the differences between Habermas and Derrida with reference to their respective childhoods. Derrida has often remarked how the experience of being neither fully French, nor fully Jew, nor fully Arab, was formative. For instance, after being expelled from school for being Jewish and sent to a Jewish school, he found that he could not identify himself fully with the Jewish community he encountered there. For Derrida, the experiences during the War left him suspicious of any claim to communal self-identity; for Habermas, the War and the Holocaust raised the question of how to defend modernity and Enlightenment. Haber-mas has often remarked how his work is marked by the experience of having to come to terms with the Nazi past, a past that he himself was part of as a member of Hitlerjugend. His work may also have been marked by a different experience, namely the diffi culties in communicating he had when going to school, diffi culties that resulted from his harelip. See Habermas, Zwischen Naturalismus und Religion, 17–19. This may have led to the focus on com-munication and intersubjectivity.

77. Habermas, Between Facts and Norms, 486. 78. Here I would distinguish this deconstructive position from those who use

Foucault to argue that tolerance is a form of domination rather than power. See, for example, Ghassan Hage, ‘Locating Multiculturalism’s Other: A Cri-tique of Practical Tolerance’, New Formations 24 (1994): 19–34.

79. Derrida, ‘Hostipitality’, 217–18. 80. Derrida, Rogues, 101. 81. Ibid., 86–87. 82. Fish, ‘Mission Impossible’, 2258. Among others, Fish criticizes Gutmann and

Thompson. 83. Enrique Dussel, ‘Deconstruction of the Concept of “Tolerance”: From Intol-

erance to Solidarity’, Constellations 11, no. 3 (2004): 326–33 at 327–28. 84. For examples of their respective views of immigration policy, see Jacques Der-

rida, ‘Derelictions of the Right to Justice’, in Negotiations: Interventions and Interviews, 1971–2001, ed. and trans. Elizabeth Rottenberg (Stanford,CA: Stanford University Press, 2002), 133–44; and Habermas, The Inclusion of the Other, 226–36.

85. Derrida, ‘Force of Law’, 21. 86. On deconstruction as hospitality, see Michael Naas, ‘“Alors, qui êtes-vous?”

Jacques Derrida and the Question of Hospitality’, SubStance 34, no. 1 (2005): 6–17 at 11–13.

Notes 163

CHAPTER 4

1. Jürgen Habermas, ‘Civil Disobedience: Litmus Test for the Democratic Constitutional State’, trans. John Torpey, Berkeley Journal of Sociology 30 (1985): 95–116 at 101.

2. Ibid., 99. 3. Archon Fung, ‘Deliberation before the Revolution: Toward an Ethics of Delib-

erative Democracy in an Unjust World’, Political Theory 33, no. 2 (2005): 397–419. For other deliberative democrats on civil disobedience, see Jean L. Cohen and Andrew Arato, Civil Society and Political Theory (Cambridge, MA: MIT Press, 1992), chapter 11; and William Smith, ‘Democracy, Delib-eration and Disobedience’, Res Publica 10, no. 4 (2004): 353–77.

4. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA: MIT Press, 1996), 486.

5. The only piece I am aware of is Drucilla Cornell, ‘Civil Disobedience and Deconstruction’, Cardozo Law Review 13, no. 4 (1991): 1309–15. Derrida himself has made three very brief comments on civil disobedience in Jacques Derrida, ‘Intellectual Courage: An Interview’, interview by Thomas Assheuer, trans. Peter Krapp, Culture Machine 2 (2000); Jacques Derrida, ‘Derelictions of the Right to Justice (But What Are the ‘Sans-Papiers’ Lacking?)’, in Nego-tiations. Interventions and Interviews, 1971–2001, ed. and trans. Elizabeth Rottenberg (Stanford, CA: Stanford University Press, 2002), 133–44 at 143; and Jacques Derrida, ‘The Last Interview’, Studio Visit (2004), http://www.studiovisit.net/SV.Derrida.pdf.

6. Jürgen Habermas, Die Neue Unübersichtlichkeit: Kleine Politische Schriften V (Frankfurt am Main: Suhrkamp, 1985), 7. All translations in the following are mine.

7. Habermas, ‘Civil Disobedience;’ Jürgen Habermas, ‘Recht und Gewalt— ein deutsches Trauma’, in Die Neue Unübersichtlichkeit: Kleine Politische Schriften V (Frankfurt am Main: Suhrkamp, 1985), 100–17; Jürgen Haber-mas, Eine Art Schadensabwicklung: Kleine Politische Schriften VI (Frank-furt am Main: Suhrkamp, 1987), 18–23, 65–66; and Jürgen Habermas, Die Nachholende Revolution: Kleine Politische Schriften VII (Frankfurt am Main: Suhrkamp, 1990), 95–96, 167–75.

8. Habermas, Between Facts and Norms, 148, 382–84. 9. Jürgen Habermas, ‘Fundamentalism and Terror—A Dialogue with Jürgen

Habermas’, trans. Luis Guzman, in Giovanna Borradori, Philosophy in a Time of Terror: Dialogues with Jürgen Habermas and Jacques Derrida (Chicago: University of Chicago Press, 2003), 25–43 at 41–42; and Jürgen Habermas, ‘Religious Tolerance—The Pacemaker for Cultural Rights’, in The Derrida–Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edin-burgh University Press, 2006), 195–207 at 198–99.

10. Although Habermas refers to John Rawls and even quotes him here, their views are slightly different concerning the appeal of civil disobedience. It appears—and this would also follow from their respective developments of the concept of autonomy—that Habermas puts relatively more emphasis on civil disobedience as an argument in public deliberation, whereas Rawls thinks of civil disobedience in terms of the principles of justice laid down in the original position. For Rawls, then, civil disobedience is fi rst of all an appeal to an already existing conception of justice and a way to defend this against majority decisions. John Rawls, A Theory of Justice (Cambridge, MA: Belknap/Harvard University Press, 1971), 363–91. Cohen and Arato (Civil Society and Political Theory, chapter 11) read Rawls and Habermas as



164 Notes

representatives of liberal constitutionalism and republican democracy respec-tively, but this is not quite fair to Habermas who, even prior to Between Facts and Norms, emphasized constitutionalism and democracy in equal measure.

11. Habermas, Die Neue Unübersichtlichkeit, 119. 12. Habermas, Eine Art Schadensabwicklung, 22. 13. Jürgen Habermas, Kleine Politische Schriften I-IV (Frankfurt am Main:

Suhrkamp, 1981), 306, but see also 232–33. 14. Ibid., 266. 15. Ibid., 213, 214 and 215. 16. Habermas, Eine Art Schadensabwicklung, 66. 17. Habermas, ‘Religious Tolerance’, 199. 18. Habermas, ‘Civil Disobedience’, 105; and Habermas, Between Facts and

Norms, 382. 19. Habermas, ‘Recht und Gewalt’, 114. 20. Ibid., 113. 21. Habermas, ‘Civil Disobedience’, 106. 22. Ibid. 23. Habermas, Die Nachholende Revolution, 174. 24. Habermas, ‘Civil Disobedience’, 106. 25. Habermas, Between Facts and Norms, 307. 26. Habermas, Eine Art Schadensabwicklung, 20. 27. Habermas, ‘Civil Disobedience’, 112. 28. Ibid., 105. 29. Ibid., 99. 30. Ibid., 106. 31. It is a supplement in Derrida’s sense of the term. Jacques Derrida, Of Gram-

matology, trans. Gayatri Chakravorty Spivak, 2nd edition (Baltimore: Johns Hopkins Press, 1997), 141–57, 295–316.

32. Habermas, Between Facts and Norms, 122-30. 33. Habermas, ‘Recht und Gewalt’, 111. 34. Ibid., 112. 35. Habermas, Between Facts and Norms, 384, all but fi rst and fi fth emphases

mine. 36. Habermas, ‘Recht und Gewalt’, 111. 37. Habermas, ‘Civil Disobedience’, 104. 38. I refer to the argument of the last part of chapter 1 where I tried to show that

Habermas both relies on and must resist closing the gap between rational reconstruction and contingent discourses among those possibly affected. For Habermas on this in relation to civil disobedience, see Habermas, ‘Civil Dis-obedience’, 102.

39. Jacques Derrida, ‘Force of Law: The “Mystical Foundation of Authority”’, trans. Mary Quaintance, in Deconstruction and the Possibility of Justice, eds. Drucilla Cornell, Michel Rosenfeld and David G. Carlson (London: Routledge, 1992), 3–67 at 27.

40. Habermas, Eine Art Schadensabwicklung, 19. 41. On lack and excess, see Radical Democracy: Politics between Abundance

and Lack, eds. Lars Tønder and Lasse Thomassen (Manchester: Manchester University Press, 2005).

42. Habermas, ‘Civil Disobedience’, 111. 43. Ibid. 44. Ibid., 109. 45. Ibid., 111.

Notes 165

46. Robert A. Dahl, Democracy and Its Critics (New Haven: Yale University Press, 1989), 204. Habermas quotes this in relation to a discussion of ‘born’ minorities in Jürgen Habermas, The Inclusion of the Other: Studies in Politi-cal Theory, trans. Ciaran Cronin (Cambridge, MA: MIT Press, 1998), 172.

47. Habermas, ‘Civil Disobedience’, 110–11. 48. Ibid., 111; and Habermas, ‘Recht und Gewalt’, 115–16. 49. Habermas, Between Facts and Norms, 179. 50. Habermas, ‘Civil Disobedience’, 111. 51. Habermas, Between Facts and Norms, 476. 52. See, for instance, Jürgen Habermas, On the Pragmatics of Communication,

trans. and ed. Maeve Cooke (Cambridge: Polity, 1998), 365. 53. Habermas, Eine Art Schadensabwicklung, 22. 54. Habermas , ‘Civil Disobedience’, 103. 55. On this, see also Reiner Grundmann and Christos Mantziaris, ‘Fundamen-

talist Intolerance or Civil Disobedience? Strange Loops in Political Theory’, Political Theory 19, no. 4 (1991): 572–605.

56. Cornell, ‘Civil Disobedience and Deconstruction’, 1310. On this question more generally, see also Iris Marion Young, ‘Activist Challenges to Delib-erative Democracy’, Political Theory 29, no. 5 (2001): 670–90; and Hol-loway Sparks, ‘Dissident Citizenship: Democratic Theory, Political Courage, and Activist Women’, Hypatia 12, no. 4 (1997): 74–110. It is also worth mentioning the work of Jacques Rancière who has argued for a notion of politics as the disruption of the present by those who are not counted (as citi-zens, humans, rational, and so on) in the present. This is what happens, for instance, when groups or individuals claim to be part of the citizenry, thereby rearticulating the notion of citizenship in a way that, while not a complete break with existing citizenship rights, nonetheless institutes new citizenship rights. The point here is that civil disobedience, as I understand it, involves a moment of disruption of present law and conceptions of justice where gaining a voice may happen in ways that do not fi t current norms. Jacques Rancière, Disagreement: Politics and Philosophy, trans. Julie Rose (Minneapolis: Uni-versity of Minnesota Press, 1999).

57. For Derrida on this, see the fi rst part of Derrida, ‘Force of Law.’ Another example of ‘the differend’ may be found in the case of the sans-papiers, which is also the context of one of Derrida’s references to civil disobedience, cf. Der-rida, ‘Derelictions of the Right to Justice.’

58. The references to majority and minority here should not be taken too literally. Some majorities are effectively minorities (for instance, women), and some minorities are effectively majorities (for instance, the rich).

59. Judith Butler, ‘For a Careful Reading’, in Seyla Benhabib et al., Feminist Contentions: A Philosophical Exchange (London: Routledge, 1995), 127– 143; and Jacques Derrida, Limited Inc, trans. Samuel Weber (Evanston,IL: Northwestern University Press, 1998).

60. Derrida, Limited Inc. 61. Or, as Habermas notes, today’s terrorist may be tomorrow’s freedom fi ghter.

Habermas, ‘Fundamentalism and Terror’, 33–34. 62. Derrida, ‘Force of Law’, 14. 63. Derrida, ‘Intellectual Courage.’ See also Derrida, ‘Derelictions of the Right

to Justice’, 143. 64. Derrida, ‘The Last Interview’, 13. 65. Habermas, ‘Civil Disobedience’, 112. 66. Habermas, ‘Recht und Gewalt’, 110. 67. Ibid., 112.

166 Notes

68. ‘Enlightenment is man’s emergence from his self-incurred immaturity. Immaturity is the inability to use one’s own understanding without the guid-ance of another. This immaturity is self-incurred if its cause is not lack of understanding, but lack of resolution and courage to use it without the guid-ance of another.’ Immanuel Kant, ‘An Answer to the Question: “What is Enlightenment?”’, trans. H. B. Nisbet, in Political Writings, ed. Hans Reiss, 2nd edition (Cambridge: Cambridge University Press, 1991), 54–60 at 54.

69. Habermas, Civil Disobedience’, 103. 70. Young, ‘Activist Challenges to Deliberative Democracy;’ and Sparks, ‘Dis-

sident Citizenship.’ 71. Fung, ‘Deliberation before the Revolution’, 401. The question of faith is, I

think, central to Habermas’s work in two ways. First of all, he has recently turned his attention to the role of religion in contemporary society, for instance in the context of tolerance as we saw in chapter three. Secondly, I believe that one could trace a certain—more or less unacknowledged—faith in Habermas’s theory of communicative reason. Simplifying, we may say that communicative reason requires faith understood as motivation and as a non-rational ‘yes’ to communicative reason, a ‘yes’ that cannot be reduced to communicative reason, yet is constitutive of it. Although I touched upon the role of this ‘yes’ in relation to rational consensus and discourse in chapter 1, more could be said about the role of faith in relation to Habermas’s project.

72. Habermas, ‘Civil Disobedient’, 105. 73. Ibid., 106. For a revealing case, see Daniel J. Wakin, ‘Arrest Me, Please (But

Jail? No Thanks); Rediscovering the Price of Protest’, New York Times 3 June 2001.

74. Fung, ‘Deliberation before the Revolution’; Young, ‘Activist Challenges to Deliberative Democracy’; and Smith, ‘Democracy, Deliberation and Disobedience’.

75. Jacques Derrida, Rogues: Two Essays on Reason, trans. Pascale-Anne Brault and Michael Naas (Stanford, CA: Stanford University Press, 2005), 142, 159.

76. Jacques Derrida ‘Hospitality, Justice and Responsibility: A Dialogue with Jacques Derrida’, in Questioning Ethics: Contemporary Debates in Philoso-phy, eds. Richard Kearney and Mark Dooley (London: Routledge, 1999), 65–83 at 66–67.

77. Ibid., 67. 78. Ibid., 66. 79. For an excellent examination of Derrida’s notion of undecidability, see Aletta

J. Norval, ‘Hegemony after deconstruction: the consequences of undecidabil-ity’, Journal of Political Ideologies 9, no. 2 (2004): 139–57.

80. Habermas, ‘Religious Tolerance’, 198–99. Habermas refers to his earlier work on civil disobedience in a note.

81. Habermas adds about the constitution that it is ‘a constitution that is dynam-ically understood as an ongoing project—the project to exhaust and imple-ment basic rights in changing historical contexts’. Ibid., 199.

CHAPTER 5

1. Jacques Derrida, Limited Inc, trans. Samuel Weber (Evanston, IL: North-western University Press, 1988), 111–60; and Jacques Derrida, ‘Biodegrad-ables. Seven Diary Fragments’, trans. Peggy Kamuf, Critical Inquiry 15, no. 4 (1989): 812–73.

Notes 167

2. A similar argument could be made about justice. For Derrida on justice, see especially Jacques Derrida, ‘Force of Law: The “Mystical Foundation of Authority”’, trans. Mary Quaintance, in Deconstruction and the Possibility of Justice, eds. Drucilla Cornell, Michel Rosenfeld, and David G. Carlson (London: Routledge, 1992), 3–67.

3. Jürgen Habermas, The Philosophical Discourse of Modernity: Twelve Lec-tures, trans. Frederick G. Lawrence (Cambridge: Polity, 1987), 161–210. See also Jürgen Habermas, Postmetaphysical Thinking: Philosophical Essays, trans. William M. Hohengarten (Cambridge: Polity Press, 1992), 205–27.

4. Habermas, The Philosophical Discourse of Modernity, 187ff. 5. Ibid., 209–10. See also Habermas, Postmetaphysical Thinking, 205–27. 6. Derrida, Limited Inc, 157. 7. Jacques Derrida, ‘Is There a Philosophical Language’, trans. Peggy Kamuf,

in The Derrida-Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edin-burgh University Press, 2006), 35–45 at 36.

8. Jacques Derrida, Memoires for Paul de Man, trans. Peggy Kamuf, 2nd edi-tion (New York: Columbia University Press, 1989), 260. See also Derrida, Limited Inc, 157–58 (in the chapter titled ‘Afterword: Toward an Ethic of Discussion’); and Jacques Derrida and Michael Wetzel, ‘Erwiderungen/Ant-wort an Apel’, Zeitmitschrift 3 (1987): 76–85 at 84.

9. Derrida, ‘Is There a Philosophical Language?’, 37. Derrida made the same point in relation to the debate surrounding his honorary degree from Cam-bridge University, where he links it to an ethics of discussion. Jacques Derrida, ‘Honoris Causa: “This Is Also Extremely Funny”’, trans. Marion Hobson and Christopher Johnson, in Points…Interviews, 1974–1994, ed. Elisabeth Weber (Stanford, CA: Stanford University Press, 1995), 399–421.

10. Derrida, ‘Is There a Philosophical Language?’, 38. 11. This also explains why Derrida says that he works on the limit of philosophy:

‘I try to keep myself at the limit of philosophical discourse. I say limit and not death.’ That deconstruction works on the limit of the discourse of philosophy means that it does not take that discourse to be a closed whole. Jacques Der-rida, Positions, trans. Alan Bass, 2nd edition (London: Continuum, 2002), 6.

12. Derrida, ‘Is There a Philosophical Language?’ 36–37. 13. Ibid., 42. 14. Habermas, The Philosophical Discourse of Modernity, 187. 16. Derrida, ‘Is There a Philosophical Language?’ 37. I will qualify this charac-

terization of Habermas below. 16. Jacques Derrida, Rogues: Two Essays on Reason, trans. Pascale-Anne Brault

and Michael Naas (Stanford, CA: Stanford University Press, 2005), 159 and 142. We cannot in fact suspend all conditions because reason would then be nothing and everything; we can only suspend some, particular conditions, but we are never truly free of conditionality. Yet, the ‘possibility’ of suspend-ing all conditions generates a certain self-questioning that we can identify with the question ‘What is reason?’

17. Derrida writes: ‘to answer for the principle of reason…to answer for this call, to raise questions about the origin or ground of this principle of foundation… is not simply to obey it or to respond in the face of this principle. We do not listen in the same way when we are responding to a summons as when we are questioning its meaning, its origin, its possibility, its goal, its limits. Are we obeying the principle of reason when we ask what grounds this principle which is itself a principle of grounding? We are not—which does not mean that we are disobeying it, either.’ Jacques Derrida, ‘The Principle of Reason:

168 Notes

The University In the Eyes of Its Pupils’, Diacritics 13, no. 3 (1983): 3–20 at 9.

18. Habermas, The Philosophical Discourse of Modernity, 409. See also Jür-gen Habermas, ‘From Kant’s “Ideas” of Pure Reason to the “Idealizing” Presuppositions of Communicative Action: Refl ections on the Detranscen-dentalized “Use of Reason”’, trans. Barbara Fultner, in Pluralism and the Pragmatic Turn: The Transformation of Critical Theory: Essays in Honor of Thomas McCarthy, eds. William Rehg and James Bohman (Cambridge, MA: MIT Press, 2001), 11–39 at 29. The argument about the place and role of philosophy is developed in Jürgen Habermas, ‘Philosophy as Stand-In and Interpreter’, in Moral Consciousness and Communicative Action, trans. Christian Lenhardt and Shierry Weber Nicholson (Cambridge: Polity Press, 1990), 1–20.

19. For this argument, see Rodolphe Gasché, Inventions of Difference: On Jacques Derrida (Cambridge, MA: Harvard University Press, 1994), 127.

20. Derrida, ‘The Principle of Reason’, 9. 21. See Habermas, ‘Philosophy as Stand-In and Interpreter.’ 22. See chapter 4 for references to Habermas, Holloway Sparks, and Iris Marion

Young. 23. For a thoughtful diagnosis of higher education in the United Kingdom along

these lines, see Jason Glynos and David Howarth, Logics of Critical Expla-nation in Social and Political Theory (London: Routledge, forthcoming 2007), chapter 6.

24. Jürgen Habermas, ‘Religious Tolerance—The Pacemaker for Cultural Rights’, in The Derrida–Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edin-burgh University Press, 2006), 195–207 at 198. Habermas is quoting from Karl Loewenstein, ‘Militant Democracy and Fundamental Rights’, American Political Science Review 31, no. 3 (1937): 417–32. The term (wehrhafte or streitbare Demokratie) was not only used in the 1930s, but has also been used more recently by German politicians such as Wolfgang Schäuble when demanding loyalty to the German state by German Muslims.

25. Habermas, ‘Religious Tolerance’, 198. 26. Jürgen Habermas, Kleine Politische Schriften I–IV (Frankfurt am Main am

Main: Suhrkamp, 1981), chapter 22. 27. Ibid., 422–23. 28. Ibid., 392, 395. In the context of a discussion of terrorism after 9/11, Haber-

mas rightly notes that today’s terrorist may be tomorrow’s freedom fi ghter or government representative, although this is only so for ‘terrorists who pursue political goals in a realistic manner; who are able to draw, at least retrospec-tively, a certain legitimation for their criminal actions, undertaken to over-come a manifestly unjust situation’, which Habermas believes is not the case with the 9/11 bombers. Jürgen Habermas, ‘Fundamentalism and Terror—A Dialogue with Jürgen Habermas’, trans. Luis Guzman, in Giovanna Borra-dori, Philosophy in a Time of Terror (Chicago: University of Chicago Press, 2003), 25–43 at 34.

29. Habermas, Kleine Politische Schriften I-IV, chapter 20. 30. Ibid., 329–30. 31. Ibid., 328. 32. Ibid., 331, 376. 33. Ibid., 335. 34. Cf. also the discussion of the ‘fundamentalist’ in chapter 3. 35. Jacques Derrida, ‘Autoimmunity: Real and Symbolic Suicides—A Dialogue

with Jacques Derrida’, in Giovanni Borradori, Philosophy in a Time of Ter-

Notes 169

ror: Dialogues with Jürgen Habermas and Jacques Derrida (Chicago: Uni-versity of Chicago Press, 2003), 85–136 at 113.

36. Jacques Derrida, ‘The deconstruction of actuality. An interview with Jacques Derrida’, trans. Jonathan Rée, Radical Philosophy 68 (1994): 28–41 at 32.

37. Derrida, ‘Autoimmunity’, 113–14. 38. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse

Theory of Law and Democracy, trans. William Rehg (Cambridge, MA: MIT Press, 1996), xli.

39. Habermas, ‘Fundamentalism and Terror’, 42. In chapter 2, I argued that ‘self-correcting learning processes’ in the context of Habermas’s writings on constitutional democracy have a quasi-teleological character.

40. Derrida, ‘Autoimmunity’, 96–99. 41. Derrida, Rogues, 31–35. Other examples include Turkey, Pakistan, and, most

recently, Thailand. Given Derrida’s ties with Algeria, his use of this example is not surprising. He never says explicitly what his position on it is, although in one place he does call for democracy, non-violence, and elections in Algeria. Jacques Derrida, ‘Taking Sides for Algeria’, in Negotiations: Interventions and Interviews 1971–2001, ed. and trans. Elizabeth Rottenberg (Stanford: Stanford University Press, 2002), 117–24.

42. The ‘personifi cation’ of democracy here is unintentional and only a manner of speaking.

43. Derrida, Rogues, 21. 44. Habermas, ‘Fundamentalism and Terror’, 29. 45. We might add that the defence of democracy exceeds calculation, yet at the

same time we are forced to make calculations here and now. For this argu-ment about calculation in relation to justice, see Derrida, ‘Force of Law’, 28.

46. Matthias Fritsch, ‘Derrida’s Democracy to Come’, Constellations 9, no. 4 (2002): 574–97. Fritsch starts from the Derridean notion of iterability: since democracy as a concept must be repeatable across different contexts, and since these contexts—including future contexts—are essentially open, then it is an open question what democracy means.

47. I take this expression from Michaele L. Ferguson, ‘Aporetic Agonism’, paper presented at the American Political Science Association Annual Meeting, Philadelphia, 31 August–3 September 2006. Ferguson uses the metaphor of Frankenstein’s monster to drive home the point that the democracy that we invent may become self-destructive.

48. Derrida, Rogues, 28ff. 49. For Derrida’s ‘minimal defi nition’ of a ‘true democracy’, see Derrida, ‘Taking

Sides for Algeria’, 121. 50. Derrida, Rogues, 28–35. 51. Ibid., 25; and Fritsch, ‘Derrida’s Democracy to Come’, 577–78. 52. Jacques Derrida, ‘Passions: “An Oblique Offering”’, trans. David Wood, in

Derrida: A Critical Reader, ed. David Wood (Cambridge: Blackwell, 1992), 5–35 at 10. For Derrida on responsibility, see also Jacques Derrida, ‘Hospi-tality, Justice and Responsibility: A Dialogue with Jacques Derrida’, in Ques-tioning Ethics: Contemporary Debates in Philosophy, eds. Richard Kearny and Mark Dooley (London: Routledge, 1999), 65–83 at 66–67; and Jacques Derrida, ‘On Responsibility’, in Responsibilities of Deconstruction (PLI Warwick Journal of Philosophy), eds. Jonathan Dronsfi eld and Nick Midgley (Coventry: University of Warwick, 1997), 19–36 at 19–23.

53. For a good example, see Habermas, ‘From Kant’s “Ideas” of Pure Reason to the “Idealizing” Presuppositions of Communicative Action’, 21–24.

54. Habermas, Kleine Politische Schriften I–IV, 266.

170 Notes

55. Habermas, The Philosophical Discourse of Modernity, 210. 56. Derrida, Limited Inc, 111. Derrida ends the piece in the following way: ‘excuse

the schematic and overly charged character of my answers. Once more, their aim is not to close the discussion, but to give it a fresh start’, Ibid., 154.

57. Derrida, Memoires for Paul de Man, 258–60. 58. Jacques Derrida, ‘Honesty of Thought’, trans. Marian Hill, in The Derrida–

Habermas Reader, ed. Lasse Thomassen (Edinburgh: Edinburgh University Press, 2006), 300–6 at 301.

59. Ibid., 302. 60. Ibid., 301. 61. Paul de Man, Wartime Journalism, 1939–1943, eds. Werner Hamacher, Neil

Hertz, and Thomas Keenan (Lincoln: University of Nebraska Press, 1988); and Responses: On Paul de Man’s Wartime Journalism, eds. Werner Ham-acher, Neil Hertz, and Thomas Keenan (Lincoln: University of Nebraska Press, 1989). Here we fi nd an example of the point just made about the ten-sion between openness and closure just discussed. Although Derrida and his colleagues sought to make de Man’s writings public, and although they facili-tated the publication of responses to de Man’s writings in a volume that was not edited for content in the usual fashion, it would be naïve to think that this somehow constitutes a transparent public where no conditions—explicit or implicit, deliberate, or non-deliberate—apply.

62. Jacques Derrida, ‘Like the Sound of the Sea Deep within a Shell: Paul de Man’s War’, Critical Inquiry 14, no. 3 (1988): 590–652; and Derrida, ‘Biodegradables’.

63. Derrida, ‘Like the Sound of the Sea Deep within a Shell’, 590, fi rst emphasis mine. I will return below to the link between responsibility and responding.

64. Ibid., 592. One example of a non-critical use of ethical categories such as responsibility is that of W. Wolfgang Holdheim, who criticizes Derrida’s reluctance to apply ethical categories in the Paul de Man case. W. Wolfgang Holdheim, ‘Jacques Derrida’s Apologia’, Critical Inquiry 15, no. 4 (1989): 784–96.

65. Derrida, ‘Like the Sound of the Sea Deep within a Shell’, 639. It is no coin-cidence that Derrida adds ‘if there is any’, because responsibility is only pos-sible as impossible in the sense of inexhaustible, of impossible to ‘take’ in a fi nal way.

66. Ernesto Laclau, ‘Totalitarianism and Moral Indignation’, Diacritics 20, no. 3 (1990): 88–95 at 90. See also Derrida, ‘Like the Sound of the Sea Deep within a Shell’, 644–48.

67. Holdheim, ‘Jacques Derrida’s Apologia’, 787 and 793. Laclau is guilty of the same mistake when he writes: ‘The facts are clear enough.… concerning his publishing in Le Soir during the occupation, all witnesses agree that it was no act of ideological identifi cation, but resulted entirely from his need to ensure a livelihood for his family’. Laclau, ‘Totalitarianism and Moral Indignation’, 88.

68. Derrida, ‘Like the Sound of the Sea Deep within a Shell’, 631. 69. Here one might, as I did in the previous chapter, connect responsibility to

undecidability, in this case the undecidability of the text. 70. Jacques Derrida, ‘Heidegger, the Philosophers’ Hell’, trans. John P. Leavey,

Jr., in Points…Interviews, 1974–1994, ed. Elisabeth Weber (Stanford, CA: Stanford University Press, 1995), 181–95; and Jacques Derrida, ‘The Work of Intellectuals and the Press’, trans. Peggy Kamuf, in Points…Interviews, 1974–1994, ed. Elisabeth Weber (Stanford, CA: Stanford University Press, 1995), 422–54.

Notes 171

71. Derrida, ‘Biodegradables’, especially 851–52. 72. Habermas, The Philosophical Discourse of Modernity, 193. Habermas is

referring to Jonathan Culler, Mary L. Pratt, and Richard Rorty. Ironically, while Habermas here assumes the identity of Derrida, deconstruction, Culler, Rorty, and Pratt, the substitution of Derrida with his Anglo-Saxon inter-locutors only makes sense insofar as there is no such identity: it is precisely because Derrida’s is not proper philosophy that Habermas has to turn to his interlocutors in order to make sense of Derrida. Culler, Rorty, and Pratt then not only take the place of Derrida, but must also add something to Derrida.

73. Derrida, ‘Like the Sound of the Sea Deep within a Shell’, 605-6. 74. On this way of reading, see Lasse Thomassen, ‘Reading radical democracy:

a commentary on Clive Barnett’, Political Geography 24, no. 5 (2005): 631–39.

75. Habermas, ‘From Kant’s “Ideas” of Pure Reason to the “Idealizing” Pre-suppositions of Communicative Action’, 29. ‘Responsive’ here translates ‘Erwiderung’.

76. Ibid., 36. 77. For Derrida on this in relation to the university as an institution, see Jacques

Derrida, ‘Once Again from the Top: Of the Right to Philosophy’, trans. Peggy Kamuf, in Points…Interviews, 1974–1994, ed. Elisabeth Weber (Stanford, CA: Stanford University Press, 1995), 327–38.

173

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Index

Actionism, see Civil disobedienceAgonism, 20, 30–31, 92; see also

Connolly, W. E.; Mouffe, C.Aporia, 6-7, 9, 28, 45, 56, 67, 72, 79,

146 and democracy, 136 and philosophy 127 of rational consensus, see Rational

consensus, aporia of and reason, 116 of tolerance, 12, 79, 84–88, 90–91,

109, 123Argumentation, 17–18, 33, 105, 152

n79; see also Rational discourseAutoimmunity, 136–138, 169 n47, and tolerance, 78, 87Autonomy, 73–74, 95–96, 100, 102 and constitutional democracy, 43-49

Benhabib, S., 50, 61, 150 n21Bennington, G., 29–30, 152 n58Bernstein, R. J., 3Brady, J., 29, 150–151 n24Butler, J., 110

Campbell, D., 89–90Castoriadis, C., 55–56Civil disobedience, 22–23, chapter 4,

133 actionism, 97–98, 115, 132, 140 and constitutional democracy,

95–96, 98–103, 110, 114–116 Derrida on, 111, 163 n5, 165 n57 Habermas on, 95–100 maturity, 95, 113–116 Rawls on, 97, 163–164 n10 responsibility, 116–118, 140 and to come, 103, 108–111, 116 tolerance, 95–99, 107–109, 118–119

Communicative action, 16–19, 23, 28-29, 43

and discourse ethics, 16–18 and validity claims, 17–18Connolly, W. E., 30–31; see also

AgonismConsensus, chapter 1, 121 and discourse ethics, 16 rational, see Rational consensusConstitutionalism and democracy, see Constitutional

democracyConstitutional democracy, chapter 2,

106–110, 113–119, 154 n2 and civil disobedience, see Civil

disobedience co-originality thesis, 44–50 Honig on, 51, 53, 63–66 Mouffe on, 157 n67 and n73 and time, 51–52, 59 to come, 62-63Cornell, D., 108–110Critique, 146 and deconstruction, 72, 77, 128, 130 deconstructive, 131, 138, 146 immanent, 28, 61Critical Theory, 24, 38 and deconstruction, 1, 3, 72, 77Cronin, C., 155 n27 and n 31

Decisionism, 50, 128Declaration of Independence

(American), 50, 65Deconstruction, 112, 128, 138, 142,

144, 146 and Critical Theory, see Critical

Theory, and deconstruction defi nition of, 4–5 Derrida on, 5, 128–129

184 Index

Deconstruction (continued) Habermas on, 9, 19, 72, 124, 128,

140 as method, 4–11, 61-63, 92–93,

111–113, 119, 122–123, 149 n30 and n34

and reason, 116, 124, 129–132, 142Deliberative democracy, 44, 70–71, 74,

115-116 critique of, 23, 26, 108Democracy, 133–139 and constitutionalism, see

Constitutional democracy deliberative, see Deliberative

democracy to come, 56, 62–63, 103, 137–138Derrida, J., see also Deconstruction

Habermas on, 2, 4, 9, 18, 123–124, 128, 147 n3, 170–171 n72; see also Deconstruction, Habermas on life, 162 n76

relation to Habermas, 2–4, 72Différance, 58Discourse, rational, see Rational discourseDiscourse ethics, 16, 37–39, 121, 131,

141 and validity claims, 17–17, 38–39 and consensus, see Consensus and communicative action, see

Communicative actionDryzek, J., 29Dussel, E., 92

Enlightenment, 1–3, 123–125, 128, 139

Ethical-political distinction, 73–77, 81–82, 84

Ethics of discussion, 41, 121, 146 and democracy, 134–135, 137–139 Derrida on, 121, 142 and Habermas, 121, 134–134, 141,

146 and philosophy, 124–125, 128–129,

132 and reason, 131–132 responsibility, 141–142Exclusion, 30, 35–36, 108, 134, 136,

138–140; see also Inclusion and constitutional democracy, 53–54 and hospitality, 20, 36, 77, 79,

90–92 Lyotard, 20–22

Mouffe, 24–27 and tolerance, 73–75, 77–79, 80,

88–92

Fallibilism, 36, 39–40, 141Fish, S., 91–92Formal pragmatics, 15, 27, 38 and rational reconstruction, 37Foucault, M., 7, 30, 97, 129, 162 n78Fundamentalism, 75–77, 138; see also

Religion; Secularism Habermas on, 74–75, 79, 83, 133Fung, A., 11–116

Genealogy, deconstructive, 93, 119, 130, 146

Habermas, J. Derrida on, 2–4, 124–125, 128, 147

n3 life, 162 n76Hage, G., 162 n78Hegel, G. W. F., 25, 34Heidegger, M., 144Hermeneutics, 6, 61Honig, B., 51, 53, 63-66Hospitality, 85, 123; see also Tolerance and deconstruction as method,

10–11, 93, 123 Derrida on, 87–88, 90–91 and exclusion, see Exclusion, and

hospitality to come, 123

Inclusion, 17, 21–25, 33, 54 72–77, 79–82, 87–88, 109, 146; see also Exclusion

Intersubjectivity, 25–26, 35, 85, 90Iterability, 57–58, 110, 169 n46

Justice, 64–65, 98–99, 101, 114, 117 and deconstruction as method, 10,

144 and multiplicity (Lyotard), 20–21 to come, 103, 108–111, 116, 118,

144–145

Kant, I., 3, 15–16, 18–19, 25, 113, 165–166 n68

Keenan, A., 65, 157–158 n80

Laclau, E., see de Man, Laclau onLanguage, 15, 18, 20–21, 35, 145

Index 185

and rational reconstruction, 39–40, 153 n87

and tolerance, 82–83, 85–86, 92Language game, 20–21Law, and autonomy, see Autonomy and justice, see JusticeLifeworld, 16–17, 25, 36, 43Literature, and philosophy, 124–125, 127–128Logic, and rhetoric, 124–125, 128Lyotard, J.-F., 19–22, 108–109, 150

n21 and n23

de Man, P., 142–146, 170 n61 Derrida on, 142–145 Laclau on, 143, 170 n67Markell, P., 88–89, 91Metaphysics, 140 of presence, 34 Method, deconstruction, see Deconstruction,

as method rational reconstruction, see Rational

reconstructionModernity, 1–2, 98, 100–101,

123–125, 128, 135; see also Postmodernism

and pluralism, 74, 81 Mouffe, C., 24–27, 30, 157 n67 and

n73; see also Agonism

Näsström, S., 156 n51das Nein-sagen-Können, 33–36, 141

Performative contradiction, 17–18, 31, 130, 136, 138, 150 n12, 152 n63

Derrida on, 124–125Performativity, 6, 9 and civil disobedience, 110, 117 and constitutional democracy,

54–55, 57, 65

Philosophical Discourse of Modernity (Habermas), 2, 4, 123, 170–172 n72; see also Derrida, Habermas on Philosophy, 61, 67, 167 n11

of consciousness, 38, 70–71, 80–81, 90, 114, 152 n87

Derrida on, 8, 124–129, 142

Derrida and Habermas compared, 3–4, 128–129, 135

Habermas on, 37–38, 124–128 and literature, see Literature, and

philosophy and rational reconstruction, 39–40 to come, 126–128, 131Pluralism, 22, 26, 46–47, 72–75,

113–114; see also Modernity, and pluralism

as multiplicity (Lyotard), 20–21Political-ethical distinction, see

Ethical-political distinctionPopular sovereignty, 44–46, 48, 107,

113; see also Democracy and constitutionalism, see

Constitutional democracyPostmodernism, 1–2, 123; see also

ModernityPower, 70, 72, 88 and tolerance, 97, 105, 136Private-public distinction, 71Public sphere, 22–23, 103, 133, 138,

150 n24

Rancière, J., 150 n23, 165 n56Rational consensus, chapter 1, 84, 140;

see also Consensus aporia of, 15–16, 24, 27–31, 34–35,

41, 107 and civil disobedience, 95–96,

103–107, 109-112 and constitutional democracy, 55–56 to come, 34–35 and tolerance, 86, 92Rational discourse, 16–19, 26–28, 31,

59–60, 141, 149–150 n10, 150 n11; see also Argumentation

Mouffe on, 24-27Rationality, see ReasonRational reconstruction, 63, 76, 88,

102, 164 n38 as method, 37–40, 60–61, 129–130,

138 as to come, 39–40Reconstruction, see Rational

reconstructionRawls, J., 25, 60, 72, 74, 159 n9 and civil disobedience, see Civil

disobedience, Rawls onReason, 15–16, 31, 116, 129–132, 167

n16 communicative, 8, 19, 23, 43, 97

186 Index

Reason (continued) critique of, 18, 97, 124, 130 Derrida on, 130, 167 n17 ethical and religious reasons, 22,

73–74, 82–85, 124 political reasons, 73–74, 82–85Recognition, 88–89, 115Religion, 81–85, 92–93; see also

Secularism fundamentalism, 133, 160 n42 and tolerance, 81–85Responsibility, 116–118, 123, 140–

146, 170 n69 and civil disobedience, 116–118 and deconstruction as method, 10,

123 and democracy, 137, 139, 142 Derrida on, 117–118, 140–145 Habermas on, 140–141, 145–146 and reason, 140 and to come, 117 and tolerance, 87Rhetoric, and logic, see LogicRorty, R., 3

Schmitt, C., 26, 105; see also Decisionism

Secularism, 81–84 and fundamentalism, 83 and post-secular, 81, 84 and tolerance, 81–84Shabani, O. A. P., 7Sparks, H., 108, 110, 114–115Sovereignty, popular, see Popular sovereignty and recognition, 89 and tolerance, 69, 72, 89–91Spatialisation, 55–56, 58–59, 63–66,

89Speech act, 17, 150 n12Subject, 25–26, 35, 38, 81, 90, 98,

130; see also Intersubjectivity philosophy of subjectivity, see

Philosophy, of consciousnessSupplementarity, 50, 64, 100, 156 n51,

164 n31

Temporality, 55–56, 66Terrorism, Derrida on, 3–4, 137

Habermas on, 3–4, 97–98, 110, 133–134, 168 n28

Lyotard on terror, 20Text, and deconstruction as method, 9–10,

62, 93, 145, 149 n30 deconstructive conception of,

143–145To come, 56; see also Civil

disobedience; Constitutional democracy; Democracy; Hospitality; Justice; Philosophy; Rational consensus; Rational reconstruction; Responsibility; Tolerance

Tolerance, chapter 3, 95–99, 108–109, 118–119, 133; see also Hospitality

civil disobedience, see Civil disobedience

deconstructive conception of, 71, 85–93

Derrida on, 88 and exclusion, see Exclusion paradoxes of, 67–71, 78–79 and religion, see Religion as to come, 87, 91Toleration, see ToleranceTotalitarianism, 130, 143Transcendental, 16, 18–20, 37–38, 157

n60 quasi-transcendental, 19–20, 38, 40

Undecidability, 6–7, 9, 129, 170 n69 and constitutional democracy, 47,

50, 57–59, 61–62, 65, 67 and identity of philosophy, 127 and responsibility, 117–118, 143Universality, 15–18, 20–26, 30–32, 35 and rational reconstruction, 37–41,

129 and tolerance, 73, 75–77, 88

Validity claims, 17–18, 28, 33–34, 36, 152 n58

Wellmer, A., 28, 34Wittgenstein, L., 5, 20, 27, 33; see also

Language game

Young, I. M., 23-24, 27, 35, 108, 110, 114–115

Documents

Lasse Thomassen Deconstructing Habermas