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LEGITIMACY OF CONSTITUTIONAL DEMOCRACY

Stefan Trifunovic

Thesis: Both Habermas and Derrida are questioning legitimacy of constitutional democracy.

Their approaches are based on the different origins, theory of communication action and

linguistic contextual approach. This is why they renew the question of relation between law

and justice, constitutionalism and democracy and finally the question of legitimacy. Each of

them revealed cornerstone, the formula of real constitutional democracy. Concerning the latest

history but also present moment of my country, I will question their arguments in order to

rethink some different presumptions of law and legitimacy.

I. INTRODUCTION

I would like to start with a short introduction explaining why I have chosen this topic for my

Master Proposal. I was born in Republic of Serbia, country which changed many names and

shapes in terms of political and law order, changed its borders and flags four times, and with

each change, new legal framework was established. Mostly, it was not shaped by the

Constitution, but with current political doctrine. After elections in October 2000, when the

United Democratic Parties (DOS) succeed to overthrow the dictatorship, Serbia started to be

seen as Democratic country. With the new Constitution in 2006, during the second mandate of

former opposition, the Constitutional Democracy was found but the main issue sustained or

sustains.

Examples of this situation can be detected especially in areas of the minority rights.1 In

Serbian Constitution in Article 54 it is stated that citizens may assemble freely2. The reality is

that Serbian government has forbidden the holding of the gay Parade this year, and since year

2000 they approved it only once. The Article 57 refers to Right to asylum and since 2008th

only one asylum seeker got the refugee status, though several thousand people, especially

1 Ustav Republike Srbije, (Beograd 2006), Constitution of Republic of Sebia, translation mine, p. 8

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since Syrian crisis started, crossed the border of Serbia and sought for this right. Baci neku fus

notu ovde, tipa websajt ministarstva ili novina gde si to procitao.

The fact is that constitutional history of Serbia is long. First constitution was endorsed in 1835

in the Principality of Serbia, but since then ten more were made until year 2006. Six years

after first democratic elections in long history of my country the citizens of Serbia made their

Constitution, and for the first time it wasn't given to them from outside or endorsed by

political pressure of regime and they were proud to say they are living in Constitutional

Democracy. Just seven years from then one has to doubt are we truly democratic system.

Through my Faculty and studying about area of Fundamental rights I came to conclusion that

this is not just a story about Serbia and problems of my country. This is also a global problem

which can be detected in various topics related to disrespect of human rights in countries

which consider themselves as Constitutional Democracies.

My theoretical background will be the work of Habermas and Derrida which are focused on

the questions about establishing constitutional democracy and its legitimacy. I will present

them from their origins through key concepts and their conclusions. I will also question

Habermas’s and Derrida’s concepts and compare their arguments related to the question of

constitutional democracy. Later I will try to overcome both points of view, in the quest of

searching the most suitable solutions which can be addressed to the issue of legitimacy.

II. BACKGROUND

Habermas's thesis of co-originality

Habermas reflects on the complex and multitudinous relation between constitutionalism and

democracy by questioning the origins of constitutional democracy. In his book ”Between

Facts and Norms” he develops the thesis of co-originality. According to his writing we can

discuss about democratic autonomy when citizens are able to understand themselves also as

authors of the law to which they are subject as addresses (Habermas,1996, p.104). Habermas’s

democratic principle of legitimacy and his discourse principle are keys to understand the

thesis of co-originality. He is pointing out that only these norms can claim validity that could

meet with the agreement between of all those concerned in their practical discourse and legal

documents on one hand and statutes on the other hand. Therefore, to claim legitimacy they

have to meet with the assent of all citizens in a discursive process of legislation that has been

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legally constituted. Guided by these postulates we can conclude that for legal norms in order

to gain legitimacy, they have to be endorsed through public deliberation under almost ideal

environment in which people have been fully informed, with equal access, balance, etc.

Constitutional democracy is the system which meets the requirements. The addressees of the

law must simultaneously be its authors, and this condition extends to the laws of lawmaking,

that is, the constitution (Habermas,1996, p.104). By all means, the political and legal systems

of modern societies have become a lot more complex than they were in their onset and we

can’t assume that any kind of individual direct involvement is possible nowadays. The idea

that the addressees of the law must also be able to understand themselves as its authors does

not give the united citizens of a democratic polity a voluntaristic, carte blanche permission to

make whatever decisions they like (Habermas,2001, p.767). Therefore the constitution has to

be subject to democratic will formation and regulated in those norms which will defend both

the pluralism of societies and singularity of individuals. Only by having their primary rights

under the law the citizens will be able not just to participate, but also to understand

themselves as its authors. Hence, the thesis of co-originality states that there is a relation of

mutual implication and presupposition between constitutionalism and democracy.

(Thomassen,2006, p.179)

Habermas’s theory of communication action and law

In order to better understand and try to comprehend Habermas's thesis of co-originality one

should always lean to the bases of his theoretical work which is certainly theory of

communicative action. Communication can be understood as a process in which two or more

people come to share a view of the world, or at the very least to recognize aspects of a

common world about which they disagree (Edgar,2006, p.163). Fundamentally there is bond

between this theory and the concept of law. In theory of communication action Habermas

makes distinction between two concepts of communicative rationality that shape knowledge

to guide action. Cognitive-instrumental rationality refers to action which one use to achieve

goals which were previously defined. These actions can be instrumental, such as through

work or strategic for example in relations of domination. The other concept of rationality

relate to communicative rationality which in its center has actions focused on mutual

understanding. These actions are implemented through dialog between speaking subjects with

the goal of reaching agreement and by that harmonizing their interpretation of the world.

These linguistic roots Habermas uses in his reconstruction of social theory, social critic and

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critic of capitalism. He claims that reason for some action can be intersubjective, i.e.

communicative. Habermas attributes to law an important role of normatively 'anchoring' or

institutionalizing the independent functioning of the steering medias of money and power. The

legal norming of money and power is central in bringing about the uncoupling of the

economic and political system from the lifeworld (Deflem,1996, p.5). In his book

“Communicative Activity” Habermas developed thesis of the internal colonization through his

reflection on juridification process of European history. 3 By developing the paradigm of

communicative action Habermas puts focus on communicative mind, communication and

rationality and communicative community. Thinking about this uncoupling, Habermas argues

that laws have to institutionalize the independence of economy and state from lifeworld

structures. Intersubjectivity and rationality are essence of Habermas’s lifeworld. In order for

law to be valid it must derive its legitimacy from those to whom it is applied, in other words,

it must be derived from 'democratic legislative procedures'. Habermas has to be seen as the

critic of the modern society and juridification. He is defending the lifeworld from colonization

and it is happening on all levels of social existence. That is the way he is questioning concept

of legitimacy and freedom in modern society and through his theory of communicative action

develops model which will connect all lifeworlds in universal category.4

Habermas’s deliberative model of democracy

In his work “Three Normative Models of Democracy”, he is giving definition of so-called

third model of democracy that is grounded on procedural politics and deliberative democracy.

He is presenting his model through discussion about nature, strengths and weaknesses of

liberal and republican political view.

Habermas clearly states that the republican model has an advantage over liberal because it

preserves the original meaning of democracy in the sense of institutionalization of public use

of reason jointly exercised by autonomous citizens (Habermas,1994, p.3). This model

provides independent communication and also it gives legitimacy to political will formation

and it suits rational politics. According to Habermas, public use of reason isn’t possible in

3 Habermas distinguishes four “juridification thrusts”. Every one of them: the bourgeois state, the bourgeois democratic state, the democratic

state and the welfare state has its own specifics in the area of legal functions, norm structures and dogmatic systematization. This division

allows us to concentrate on one historical type of juridification 4 This universalism he developed can be observed in his reflections on EU crisis. According to Habermas the thing which unites citizens of

EU are discourses of eurosceptics which have different origins in every EU country but what they have in common is that they all became

stronger since the beginning of the crisis. Therefore current path of political decision should be made through a social method which will serve to reach joint rationality. This will mean that all citizens will share same values, same view on the world. In case of EU this rationality

will be adopted through referendum, as a way of formal consensus.

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liberal model, it is not linked to political process. Deliberation about public reason is near to

concept of legitimacy . If every self-conscious individual practice his positive rights through

communication with others, through process of intersubjectivity, they will agree among

themselves and form a consensus to which structure of power they will give legitimacy

(Pavicevic, 1998, p.10). Habermas in his reflection on legitimacy introduce concept of

rationalization through his discourse theory. In his view, procedures and communicative

assumptions of democratic will and opinion formation have are channels for discursive

rationalization of decisions of the administration which is restricted by law and legislation.

Rationalization means more than mere legitimation but less than constitution of political

power (Habermas, 1994, p.9).

He writes that instead of focusing on justice, for more efficient involvement in legislative

process, we should ask how things could be regulated in interest of everybody. Establishing

norms is question of justice and it is measured by principals which establish what is in

everyone’s equal interest. The politically enacted law of a concrete legal community must, if

it to be legitimate, at least be compatible with moral tenets that claim universal validity going

beyond the legal community (Habermas,1994, p.5). This kind of normative process often

leads to compromises which enable efficient communication in pluralistic community.

For better understanding Habermas’s deliberative model of democracy we should focus on his

approach on private and public sphere. As we have seen, private-law theory (as the doctrine of

"subjective right") got started with the idea of morally laden individual rights which claim

normative independence from, and a higher legitimacy than, the political process of

legislation (Habermas, 1996, p. 89). This means that private law is enriched with moral

authority and that are both independent from democratic legislative process and therefore they

don’t need to be justified under legal theory. This sparked a development that ended in the

abstract subordination of "subjective" rights to "objective" law, where the latter's legitimacy

finally exhausted itself in the legalism of a political domination construed in positivist terms.

(Habermas,1996, p.89). Accordingly, source of legitimacy is in democratic process of

decision-making process and refers to the principle of public sovereignty. Therefore under

these conditions and through reconciliation of democracy and constitutionalism, requirements

will be achieved for statutes to claim legitimacy in a discursive process of legislation.

Derrida about constitutional democracy

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Oppose to Habermas’s focus on reconciliation in constitutional democracy, Derrida points out

iterability of this term. This iterability and the gap between constitutionalism and democracy

– is required for its functioning (Thomassen,2006, p.179). For him a reconciliation of

democracy and constitutionalism, in terms of Habermas’s discourse principle or in a way that

there is settled, harmonized relation between them would make this system collapse. That

atmosphere would make impossible for the mere practices of constitutional democracy to

exist at all. In these terms there wouldn’t be any space for praxis such as deliberation or

interpretation of constitution which are the essence of constitutional democracy. The

irreducibility of relation between these concepts is keeping them at optimal distance, far

enough not to let one overcome the other and close enough to let them support each other.

(Thomassen,2006, p.183). In Derridian terms this would mean if somebody for example gives

priority to democracy over the constitutionalism, the following one itself will lose its core,

and other way around, because they are the concepts which oppose but in same time

presuppose each other. Democracy, as a consequence, cannot be confounded with

constitutionalism and vice-versa, because this would stop the play and even interrupt the

dialectical movement towards the other’s otherness (Benvindo, 2010 p.183). Irreducibility is

also factor which is crucial for giving the constitutional democracy the character of future to

come. This term for Derrida stands for the future which is not just different from the present

one, it is also incomparable to it. The future to come cannot be 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 (Benvindo,2010, p.167).

Derrida’s linguistic contextual approach

Through term différance5 Derrida is explaining the intensity of correlation democracy-

constitutionalism and also the complex look on the possibility of the future of that relation,

the future to come. Différance is neither a word nor a concept, but rather the condition of

possibility for conceptuality and words as such (Critchley 1999, p. 37.). While he is

questioning the principles of making of decisions, in his book, ”Force of Law”, Derrida is

implementing the concepts of his linguistic studies. Game of present and absence, this

understanding of dynamics is getting us one step closer of defining what is différance. It is

5 Différance as a word, as a concept, came from French verb differer which could be understood in the two ways as ’to defer’ and ’to differ’.

As ’to defer’, articulates to delay fullfilment of some action. It has meaning of temporarity and refers to time scale. On the other hand, differe in way of ’to differ’ indicates the diference between two terms, one is not the same as the other. It indicates non-identical relation and has

spartial sense. Therefore by researching the origin of différance we can reveal duplicity of its meaning, the temporal and the spatial.

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relative, asymmetrical and indefinite it can’t be put in closed field of meaning, there can’t be

any strict boundaries when we are talking about the it. That is why this concept is erasing the

lines between theory and praxis and can be placed in realm of political-legal issues.

Différance as a concept is not only limiting itself to sphere of meaning it is also extending to

area of time. ”At the same time” that différance marks a relation (a “ferance”) – a relation to

what is other, to what is differs in the sense of alterity, thus a relation to alterity, to the

singularity of the other – it also relates, precisely because of this, to what comes, to what

arrives in a way that is both inappropriable, unexpected, and thus urgent, unanticipatable:

perception itself (Derrida,2005, p.93).He gave a priority to language in his theory, not to the

defining fundamentals but to explore and express inside relations toward others under traces,

metaphors of language as long as they are in the meaning of différance. That means in the

relation between signifier and signified one can be converted into another and that will lead to

a process of continuous “resignification”, without boundaries or origins. This dynamics in

their relation is allowing possibility of différance.

Différance in constitutional democracy

The stress on différance ensures that the connection between democracy and constitutionalism

is always differed, for différance can never mean the destruction of the existing gap between

same and the other (Benvindo, 2010 p.183). This gap has to stay as a kind of an engine which

pushes the interaction between them and a safety boundary which will not let one overcome

other. It is also there to provide that constitutionalism requires democracy and vice-versa. The

logocentrism means an attack on the free play of traces where constitutional democracy

should develop.(Benvindo, 2010, 184). In terms of temporal features of constitutional

democracy wouldn’t be the system that follows the constitutional or institutional history and

heritage but also that doesn’t mean it would automatically reject it. Determined by différance

it will always remain open to the future, it’ll have a realm of possibilities regardless present.

Additionally, future to come of democracy assures that there will be the endless project of

legitimation.

In this moment it is interesting to look upon Derrida’s analysis of the American Declaration of

Independence. By deconstruction it he shows that law excluded the other’s otherness as a way

of gaining power against it in its founding. The deconstruction and iterability are necessary

for legitimacy. Without them law would be simple repetition without legitimacy and it will

just lead to defining particular will which would ignore the needs of majority and cancel

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democracy. In summary, democracy is in need of constitutionalism or it’ll be the system in

which the voices of majority would be the only one even if there is minority against them and

that would lead to practicing law which is violent without any legitimacy (Derrida, 1992, p.

142). If there was no deconstruction, and thus autoimmunity and iterability, there would be,

instead, violence without legitimacy, and the law, applied to a context of simple repetition

without legitimacy, could become a simple process of calculation or identification of a

particular will, which would be, definitely, neither just nor Democratic (Benvindo,2010,

p.188).

III CONCLUSION

Derrida’s deconstructive approach on the questions of constitutional democracy desputes

Habermas’s reconstructive theory which is based in reconciliation of democracy and

constitutionalism. Derrida has developed term différance as a neologism that is the antithesis

of logocentrism and on the other hand Habermas puts subjective rights into objective

principles embracing the totality of the legal order.

Within deconstructive approach there are different concepts of democracies which are based

on Derridian parameters but emerged in different ways. For example, Chantal Mouffe

developed Agonistic model of democracy. It is based on deconstruction, in opposition with

deliberative democracy and points out that there is no possibility of final and rational solution.

On the other hand, it focuses on questions of power and antagonisms. For Mouffe power is

product of social relations exerted through praxis and language games. She implies that any

social objectivity is ultimately political and that it has to show the traces of exclusion, which

governs its constitution (Mouffe, 2000, 13-14). She highlights hegemonistic nature of political

conflict which fundamentally gives context to decision-making power which is counted as

legitimate. Agonistic model doesn’t try to eliminate power, hereupon that power is inevitable

and constitutive part of everyone's identity. Goal of this kind of politics is to mobilize power

in democratic way, to enable democratic voices to enter combat for hegemony.

It is interesting to point out that, in the theoretical line near to Habermas, there are different

models of deliberative democracies, also. John Rawls’s concept of deliberative democracy is

one of the most developed. He focuses on différance between public and private reason.

Public is associated with government’s quasi political forums and functions, such as

parliamentary debates, act of administration and even voting. Private reason is in area of non-

government forums, for example: churches, universities, professional groups and voluntary

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organizations in civil sector (Mouffe, 1997, p.113). On the other hand Habermas represents

strong proceduralism with clear distinction between public and private.

Within all stated above I have to repeat that this matter has both practical and international

features. In reflexing on the situation regarding constitutional rights in Brazil, we can notice

the vivid contrast between rights on paper and how these very rights work in practice. There is

a great paradox that, despite its rights-based constitution, legal rights in Brazil are not

necessarily respected. Of course, law may deem a human right ‘fundamental’, but it does not

follow that such a right will be guaranteed. Indeed, it may simply be abused or ignored by

authorities for their gain.

The reality of constitutional rights in Brazil provides strong evidence that rights-based

constitutions by themselves might be insufficient to protect the basic rights of the citizen.

Recent protest on the streets of Brasilia, Rio de Janeiro, Sao Paolo etc. has shown that people

are not satisfied with current situation and that they are questioning legal framework. In

addition we have to mention latest situation. Regulation article 23 of the constitution of the

state Rio de Janeiro among other things states that is forbidden to wear any kind of masks on

protests. Ironically, once again authorities have abused law to gain more power over citizens,

pushed the border of people’s rights and jeopardize their fundamental rights.

Unquestionably, there is a problem with legitimacy of Brazilian constitutional democracy. If

we are guided by theoretical background presented earlier in the text one of the explanations

of this issue would be that Brazilian Constitution, established in 1988, appears as a reaction to

the period of military dictatorship, was made in the conditions without any democracy nor

constitutionalism. This Master thesis would seek answers to this matter mainly through

theories of Habermas and Derrida, their followers and critics, but also through legal

documents and current law praxis.

IV METHODOLOGY

This Master thesis will be based on three methodological elements: History, Philosophy and

Law.

History will be used as a tool to observe establishing of constitutional democracy in different

systems. That will give me a ground for comparison of alternative conditions during

establishing and its impact to current situation. This thesis will enter Philosophy, taking

Habermas and Derrida’s approaches, as a ground point of deliberation on the issues of

legitimacy, fundamental law and constitutionalism-democracy relation .

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Through the Law, i.e. Declaration of Human Rights, Brazilian and Serbian Constitution, legal

praxis and current legal framework this thesis will reflect on the practical issues. Law will be,

therefore, the third element of analysis in this work in order to answer the questions and

reflections I have set up above.

References

Andrew Edgar, Habermas – The key Concepts, London, 2002.

Benvindo, Julian Zaiden, On the Limits of Constitutional Adjudication, Berlin 2010.

Chantal Mouffe, Deliberative Democracy or Agonistic Pluralism, Vienna, 2000.

Djordje Pavicevic, „Tri normativna modela demokratije“ Godišnjak fakulteta političkih

nauka, Beograd, 1998. Translation and editing of Jürgen Habermas, text Three Normative

Models of Democracy, 1994.

Elisabeth Rothemberg, “Introduction.” In Negotiations: Interventions and Interviews, 1971–

2001, by Jacques Derrida, Stanford, 2002.

Gunther Teubner, Dilemmas of law in the welfare state , Berlin, 1988.

Ivkovic Marjan, Habermasova koncepcija sistemske kolonizacije sveta života, Beograd,

2010.

Jacques Derrida ,“Force of Law,” New York, 1992.

Jacques Derrida, Rogues: Two Essays on Reason, California, 2005.

Jacques Derrida, Declarations of independence, New Political Science, 1986.

Jurgen Habermas, Between facts and norms, Massachusetts, 1996

Jurgen Habermas,The theory of communication action, Boston, 1984.

Jurgen Habermas, Democracy, law, founding constitutional democracy, A Paradoxical Union

of Contradictory Principles? Frankfurt, 2001.

Jurgen Habermas, Democracy, Solidarity and the European Crisis, lecture, Leuven, 2013.

Lasse Thomassen. “’A Bizarre, Even Opaque Practice’: Habermas on Constitutionalism and

Democracy”, Edinburgh, 2006.

Simon Critchley, The Ethics of Deconstruction: Derrida and Levinas, Edinburgh 1999.

Santal Muf, Povratak političnog, Beograd, 2000. Translation Dusan Pavlovic, Chantal

Mouffe, The return of the political, New York, 1997.

Ustav Republike Srbije, Beograd, 2006.