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Habermas on the Reciprocity between Liberty and Popular Sovereignty
Patrik Schumacher, London, July 2018
Paper delivered at the Academy 2018, annual conference of the Academy of Ideas, July 2018

Jürgen Habermas (b.1929) is a globally recognized philosopher and public intellectual. He made original contributions to critical theoretical sociology, the theory of modern society, as well as moral and political philosophy.

My presentation focusses on a key theme of his political philosophy that relates to the theme of this year’s conference: popular sovereignty.
Habermas has elaborated this theme in his treatise ‘Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy’1, first published in German in 1992, and in English in 1996. However, my presentation also draws on Habermas’ earlier works: the ‘Theory of Communicative Action’2 and his writings on ‘Discourse Ethics’3, as well as directly on Rousseau’s ‘Social Contract’. All quotes from Habermas are taken from ‘Between Facts and Norms’.

This paper concerns Habermas’ account of “the two ideas of human rights and popular sovereignty have determined the normative self-understanding of constitutional democracies up to the present day.”4
Habermas’ point of departure is that our modern democratic states are relying on two conflicting political conceptions as fundamental basis of their constitution and self-understanding.
The 1st conception is the idea of a liberal constitution that protects individual liberties in the form of a system of rights, including fundamental and inalienable human rights.
The 2nd conception is the idea of popular sovereignty, i.e. unconstrained political sovereignty or government by the people or their elected representatives.

The principle of human rights developed in the tradition of classical enlightenment liberalism and was backed up by the idea of natural law in distinction to man-made law. In this conception individual liberties are primary as the a priori basis for entering into society conceived of as social contract.The principle of popular sovereignty is fundamental to the tradition of civic republicanism which sees community and society as primary and connects up with Aristotle’s conception of man as citizen and his idea of the good life as necessarily lived as member of the polis.
Jean-Jacques Rousseau was an early and influential proponent of this conception. Here is a relevant passage from his 1762 treatise ‘The Social Contract’:
“If the State is a moral person whose life is in the union of its members, and if the most important of its cares is the care for its own preservation, it must have a universal and compelling force, in order to move and dispose each part as may be most advantageous to the whole. As nature gives each man absolute power over all his members, the social compact gives the body politic absolute power over all its members also; and it is this power which, under the direction of the general will, bears … the name of Sovereignty. But, besides the public person, we have to consider the private persons composing it, whose life and liberty are naturally independent of it. We are bound then to distinguish clearly between the respective rights of the citizens and the Sovereign, and between the duties the former have to fulfil as subjects, and the natural rights they should enjoy as men. Each man alienates, I admit, by the social compact, only such part of his powers, goods and liberty as it is important for the community to control; but it must also be granted that the Sovereign is sole judge of what is important.”5
We take both human rights and popular democratic rule for granted and are therefore mostly not aware of their unresolved tension. Habermas exposes this unresolved theoretical contradiction in the conceptual constitution of our democracies and sets himself the task to elaborate a resolution that can satisfy contemporary post-metaphysical philosophical standards. Habermas approach is via a critical rational reconstruction of the evolved institutional arrangements in order to probe into and excavate their hidden presuppositions.
This is not meant to be a mere academic task as the identified conceptual conflict seems to feed the conflict between broad political tendencies, i.e. conservative right versus progressive left political tendencies. However, this identification is not explicit in Habermas.
Conservative liberalism emphasizes liberty and worries about the majority’s power to suppress individuals and minorities and thus insists on constitutional safeguards of individuals’ rights which must remain outside of the remit of majority rule. According to this conception popular sovereignty and thus the scope of democracy must be strictly limited and should never become comprehensive. According to Habermas’ terminology in this tendency ‘private autonomy’, i.e. individual self-realization, trumps ‘public autonomy’, i.e. the collective self-realisation of the political community.
Civic Republicanism, in contrast, privileges public autonomy and does not recognize any a priori constraint on the expression and realization of the people’s sovereign will.  This is indeed explicit in Rousseau:
“It is against the nature of the body politic for the Sovereign to impose on itself a law which it cannot infringe.  … There neither is nor can be any kind of fundamental law binding on the body of the people — not even the social contract itself.”6
All tendencies aiming to radicalise democracy and all socialist tendencies seem to subscribe to this conception of unlimited popular sovereignty.
The conflict in Habermas’ own words:
“Liberals invoke the danger of a “tyranny of the majority” and postulate the priority of human rights that guarantee the pre-political liberties of the individual and set limits on the sovereign will of the political legislator. The proponents of a civic republicanism, on the contrary, emphasize the intrinsic, non-instrumentalizable value of civic self-organization, so that human rights have a binding character for a political community only as elements of their own consciously appropriated tradition. Whereas on the liberal view human rights all but impose themselves on our moral insight as something given, anchored in a fictive state of nature, according to republicans the ethical-political will of a self-actualizing collectivity is forbidden to recognize anything that does not correspond to its own authentic life project.”7  End of quote. (p. 100).
Habermas’ theoretical project is to show that both competing political conceptions point to indispensable principles  -  namely the principle of inviolable individual rights and the principle of unlimited popular sovereignty  -  that are indeed both presupposed as preconditions of the unquestioned achievement of modern constitutional democracies. They complement and require each other.
We may start the presentation of Habermas’ argument by summarizing his conclusion:
The modern idea of popular sovereignty – the self-legislation of the people -  presupposes people who are free and equal. The collective opinion- and will-formation must be a voluntary process where participation is a matter of individual choice. The idea calls for but cannot coerce political participation. As an inherent precondition of the collective, presumably rational and thus necessarily repression-free deliberation and will-formation process that is to inform the self-legislation of the people, the free individual must be presumed and indeed constitutionally safeguarded. Thus public autonomy requires private autonomy. The inverse presupposition also holds: In order for private autonomy or individual liberties to become a reliable social reality, the individual must be institutionalized as legal person with constitutionally safeguarded rights. To deny this involves a performative contradiction, i.e. a statement that is contradictory not within its semantic content but in relation to its pragmatic presuppositions.

Habermas’ theoretical project is a project of theoretical integration and rational reconstruction demonstrating how the competing modern conceptions of private and public autonomy co-originate “from crumbling edifice of substantial ethical life” and indeed presuppose each other and therefore should not be used to debunk or discredit each other but must be balanced within a theory-led political process.
Habermas: “Thus far no one has succeeded in satisfactorily reconciling private and public autonomy at a fundamental conceptual level, as is evident from the unclarified relation between individual rights and public law in the field of jurisprudence, as well as from the unresolved competition between human rights and popular sovereignty in social-contract theory.”8
According to Habermas this is a task for contemporary philosophy because he identifies the origins of this conceptual problem in the deficiencies and fallacies of prior philosophical approaches in the context of which these conceptions were first formulated and which lack the theoretical resources for their satisfactory resolution.

Although both Kant and Rousseau try to integrate the two principles, according to Habermas they failed to do so. Habermas: “In Kant, as in Rousseau, there still is an unacknowledged competition between morally grounded human rights and the principle of popular sovereignty. … On the whole, Kant suggests more of a liberal reading of political autonomy, Rousseau a republican reading.”9

Habermas describes Kant’s conception as follows:
“Kant obtains the “universal principle of law” by applying the moral principle to “external” relations. He begins his Elements of Justice with the one right owed to each human being “by virtue of his humanity,” that is, the right to equal individual liberties backed by authorized coercion. … This system of natural rights, which “one cannot give up even if one wanted to,” belongs “inalienably” to each human being. It is legitimated, prior to its differentiation in the shape of positive law, on the basis of moral principles, and hence independently of that political autonomy of citizens first constituted only with the social contract. To this extent the principles of private law enjoy the validity of moral rights already in the state of nature; hence “natural rights,” which protect the human being’s private autonomy, precede the will of the sovereign lawgiver. At least in this regard, the sovereignty of the “concurring and united will” of the citizens is constrained by morally grounded human rights.”10

Let’s start to engage with the philosophical fallacies of the liberal conception of rights and their problematic political consequences. The most obvious problem is the bankrupt metaphysical notion of natural law which is not only incompatible with our current scientific world view but also attempts to withdraw aspects of the law not only from the political reform process but even from critical discursive probing.
Even those notions of natural law that avoid metaphysical references and rather rely on references to human nature or essence unduly naturalize and frieze what are indeed historical achievements of cultural evolution. Rights and individual autonomy are not found in natural history, nor in any pre-modern society. The one-sided simple insistence on certain rights as self-evident, natural human rights is intellectually bankrupt, and it thus seems that human rights are theoretically defenceless on our contemporary post-metaphysical and post-essentialist intellectual level.

Another deficiency of the liberal conception is the even more widespread and less acknowledged but related fallacy of a simplistic conception of a presumably essentially individual human subjectivity, personality and consciousness.
Liberal social and political theory tries to theoretically model society on the idea of a contract agreed for mutual individual benefit and thus explains society via individuals' calculated, utility maximising appraisal of the advantages of social cooperation.  Habermas objection is not merely that the social contract story is historically false  - it was admittedly a theoretical fiction -  but that it is a fallacious theoretical reconstruction that falters on a naive conception of the individual as cognitively self-sufficient agent with autonomously formed ends and the self-sufficient capacity for means-ends thinking.
Against this stands the insight that what we recognize as  human subjects are always already inherently social and that subjectivities, self-conceptions, including everybody’s conceptions of their own interests and self-realisation, are not only dependent on always already given, communal language resources and an initial socialization but on continued communicative interactions that are crucially required to continuously confirm, reproduce and update our very self-conceptions and orienting understanding of the world and our potential interests within it. All world revealing reasoning and knowledge is inherently intersubjective and based on inherently dialogical and collective ‘communicative reason’ and which cannot be reduced to individual ‘instrumental reason’.

Habermas’ key concept of communicative action and reason in distinction to instrumental and strategic action and reason had been absent from all social sciences based on methodological individualism including political theory, sociology and economics, where action  - the most fundamental base category of the social sciences  - always implies an individuals’ means-ends rationality. In contrast communicative action is oriented towards mutual understanding and presupposes an inherently shared life project. This also becomes Habermas’ anchor for securing solidarity.

Proper communicative interactions are only those where all motives except that of cooperatively and consensually achieving a shared goal together for a shared purpose are suspended. This most crucially entails seeking the truth together. Without positing one's thinking sincerely (non-strategically) one obviously cannot test one's ideas and forgoes the required corrective input. The exposure to criticism engenders learning. Isolated individual thinking is very vulnerable to going astray. Isolated individuals quickly lose all sense of reality. What we (since modernity) call knowledge  - and that includes science as ideal of knowledge production - can only be built on communicative interaction. Since instrumental action and strategic action require knowledge, they are parasitic on communicative action.
Habermas' insight is thus that individual instrumental reason is secondary to and depends communicative reason. This insights defeats a social contract model of society that presumes that society can be built and sustained merely on the basis of individually expected (and negotiated) mutual advantages of cooperation for the sake of prior individuals' interests, which can then become the motivation to seek its safeguarding via rights. This can thus not be the route for the justification of rights.

This argument of the dependence of interests on communication establishes that the system of rights cannot be grounded independently of the community or polity and that the community/polity is a constitutive condition of the very individuals themselves, their interests, and rights.
But how can the necessity of individual liberties be established after all? How can the modern system of rights be grounded in the face of the demands of the polity?

Before I give Habermas’ answer to this question, let me turn to the deficiencies and problems of the classical conception of popular sovereignty as Habermas finds it in Rousseau.

Habermas describes Rousseau’s conception as follows:
“Rousseau imagines the constitution of popular sovereignty through the social contract as a kind of existential act of sociation through which isolated and success-oriented individuals transform themselves into citizens oriented to the common good of an ethical community. As members of a collective body, they fuse together into the macrosubject of a legislative practice that has broken with the particular interests of private persons subjected to laws.
Rousseau takes the excessive ethical demands on the citizen, which are built into the republican concept of community in any case, to an extreme. He counts on political virtues that are anchored in the ethos of a small and perspicuous, more or less homogenous community integrated through shared cultural traditions. The single alternative would be state coercion:  “Now the less the individual wills relate to the general will, that is to say customary conduct to the laws, the more repressive force has to be increased. The Government, then, in order to be good, should be relatively stronger as the people becomes more numerous.” However, if the practice of self-legislation must feed off the ethical substance of a people who already agree in advance on their value orientations, then Rousseau cannot explain how the postulated orientation of the citizens toward the common good can be mediated with the differentiated interest positions of private persons. He thus cannot explain how the normatively construed common will can, without repression, be mediated with the free choice of individuals.”11

Let’s return to our question: How can the modern system of rights be grounded in relation to polity and popular sovereignty and its general will?
Habermas argues that the system of rights, i.e. the system of protected individual liberties, is justified as a necessary enabling condition of the very formation of the general will, i.e. as an indispensable aspect of the constitutive procedures by which popular sovereignty is enacted. This argument via the identification of “conditions of possibility” parallels Habermas discourse ethics, according to which modern rationality, knowledge, science and philosophy depend on modern liberal morality.

The social contract is indeed meant to be rational, formed for the sake of the utility of cooperation that benefits all. Even Rousseau insists – on the opening page of his treatise – that utility remains a guiding principle of his inquiry.
Rousseau: “In this inquiry I shall endeavour always to unite what right sanctions with what is prescribed by interest, in order that justice and utility may in no case be divided.”12

Here is the compelling insight of Habermas discourse ethics:
Modern science, rationality, and knowledge is always a social achievement, always the result of a specifically structured social cooperative process, more specifically it is always based on controversial debate where many independent authors exchange contributions.
This seemingly trivial fact of life becomes an important premise of philosophical self-reflection: ALWAYS remember, ALL knowledge depends on a social process, no knowledge can emerge within an isolated thinking mind.
Philosophy must take this EVERYDAY FACT of its own production very serious:
dialogue, discussion, open controversial debate is a condition of philosophy’s possibility, of science’s possibility, of the possibility of knowledge (in contrast to mere untested opinion).
This is how we judge truth in the modern world:  if you do not allow yourself to be critisized, if you protect yourself from questions that you cannot answer, its clear that you have not reached the truth.
“Truth” is what can withstand scrutiny, can answer challenges.
This is a fact of our discourse practice: Any knowledge claim becomes suspect if the social, communicative process establishing it did significantly deviate from the ideal of a sincere, open, critical, “democratic”, repression free discourse.
Furthermore, the fundamental scientific criterion of universal reproducibility presupposes critical open access to the discursive search for truth. This indicates the requirement of openness to everybody’s independent testing, criticism and refutation.
There is, of course, no guarantee of truth, criticism continues, but we know one thing: that which shields itself from criticism cannot be trusted! And crucially: it cannot and should not trust itself.

The knowledge we mean cannot exist in traditional societies, and in fact did not exist. They could survive, and thus seemed to “know” something, but they did not really KNOW anything ... it was all very uncertain, mixed up with crass superstitions, and evidently far less practically successful than modern scientifically based societies.
This means that modern, enlightened knowledge claims, as well as all practical rationality claims, presuppose modern liberal non-stratified social relations between ‘free’ individuals and exclude relations of bondage or indeed reifications like nobility, papal infallibility, the authority of the bible etc., and must also exclude the ideological domination or censoring of individual dissenters by a politically empowered majority opinion.
Modern knowledge, science, and rationality depend on the modern liberal morality. Their rejection within discourse constitutes a performative contradiction.

Habermas uses this reflective insight to ground this liberal morality, rebutting relativistic philosophical positions that claim all morality to be a matter of mere subjective choice not susceptible to rational argument. Habermas argues: Subjectivist moral philosophy, by joining the discourse and trying to convince the participants in this discourse that the search for a justifiable/true morality is vain, fails to reflect that it thereby is already implicitly committed to a particular morality, namely to the liberal morality underpinning (modern social the institution of) discourse. Habermas’ project of discourse ethics is then to make these moral presuppositions of all discourse explicit, thereby rationally grounding a particular moral system.

Again: Modern knowledge, science, and rationality depend on the modern liberal morality, therefore a rational polity must also rely on the modern liberal morality, and indeed must institutionalize it legally in the form of the liberal system of rights or liberties.

Rousseau had claimed that  “there neither is nor can be any kind of fundamental law binding on the body of the people”13 but now we realize with Habermas that a rationally self-legislating people are always already performatively bound by the presupposition of liberties as an enabling condition of its rational collective self-determination.

Rousseau also claims that “the Sovereign, being formed wholly of the individuals who compose it, neither has nor can have any interest contrary to theirs; and consequently the sovereign power need give no guarantee to its subjects, because it is impossible for the body to wish to hurt all its members.”14
Rousseau seems to argue that the very undifferentiated abstract generality of the laws instituted by the people guarantees enough.

Habermas rebuts this and elaborates his answer and solution to this central puzzle of modern political philosophy as follows:

“The normative content of the original human right cannot be fully captured by the grammar of general and abstract laws alone, as Rousseau assumed. The substantive legal equality that Rousseau took as central to the legitimacy claim of modern law cannot be satisfactorily explained by the semantic properties of general laws.
The form of universal normative propositions says nothing about their validity. Rather, the claim that a norm lies equally in the interest of everyone has the sense of rational acceptability: all those possibly affected should be able to accept the norm on the basis of good reasons. But this can become clear only under the pragmatic conditions of rational discourses in which the only thing that counts is the compelling force of the better argument based on the relevant information. Rousseau thinks that the normative content of the principle of law lies simply in the semantic properties of what is willed; but this content could be found only in those pragmatic conditions that establish how the political will is formed.

So the sought-for internal connection between popular sovereignty and human rights lies in the normative content of the very mode of exercising political autonomy, a mode that is not secured simply through the grammatical form of general laws but only through the communicative form of discursive processes of opinion- and will-formation.
This connection remains hidden from Kant and Rousseau alike. Although the premises of the philosophy of the subject allow one to bring reason and will together in a concept of autonomy, one can do so only by ascribing this capacity for self-determination to a subject, be it the transcendental ego of the Critique of Practical Reason or the people of the Social Contract. If the rational will can take shape only in the individual subject, then the individual’s moral autonomy must reach through the political autonomy of the united will of all in order to secure the private autonomy of each in advance via natural law. If the rational will can take shape only in the macro-subject of a people or nation, then political autonomy must be understood as the self-conscious realization of the ethical substance of a concrete community; and private autonomy is protected from the overpowering force of political autonomy only by the nondiscriminatory form of general laws.

Both conceptions miss the legitimating force of a discursive process of opinion- and will-formation, in which the illocutionary binding forces of a use of language oriented to mutual understanding serve to bring reason and will together— and lead to convincing positions to which all individuals can agree without coercion.
However, if discourses … are the site where a rational will can take shape, then the legitimacy of law ultimately depends on a communicative arrangement: as participants in rational discourses, consociates under law must be able to examine whether a contested norm meets with, or could meet with, the agreement of all those possibly affected.

Consequently, the sought-for internal relation between popular sovereignty and human rights consists in the fact that the system of rights states precisely the conditions under which the forms of communication necessary for the genesis of legitimate law can be legally institutionalized. The system of rights can be reduced neither to a moral reading of human rights nor to an ethical reading of popular sovereignty, because the private autonomy of citizens must neither be set above, nor made subordinate to, their political autonomy.
The normative intuitions we associate conjointly with human rights and popular sovereignty achieve their full effect in the system of rights only if we assume that the universal right to equal liberties may neither be imposed as a moral right that merely sets an external constraint on the sovereign legislator, nor be instrumentalized as a functional prerequisite for the legislator’s aims.
The co-originality of private and public autonomy first reveals itself when we decipher, in discourse-theoretic terms, the motif of self-legislation according to which the addressees of law are simultaneously the authors of their rights. The substance of human rights then resides in the formal conditions for the legal institutionalization of those discursive processes of opinion- and will-formation in which the sovereignty of the people assumes a binding character. … As soon as the legal medium is used to institutionalize the exercise of political autonomy, these rights become necessary enabling conditions.”15

Habermas elaborates further:
“The principle that all “governmental authority derives from the people” must be specified according to circumstances in the form of freedoms of opinion and information; the freedoms of assembly and association; the freedoms of belief, conscience, and religious confession; entitlements to participate in political elections and voting processes; entitlements to work in political parties or citizens’ movements, and so forth. In the constitution-making acts of a legally binding interpretation of the system of rights, citizens make an originary use of a civic autonomy that thereby constitutes itself in a performatively self-referential manner. Thus we can understand the catalogues of human and civil rights found in our historic constitutions as context-dependent readings of the same system of rights.
This system of rights, however, is not given to the framers of a constitution in advance as a natural law. Only in a particular constitutional interpretation do these rights first enter into consciousness at all. In fact, when citizens interpret the system of rights in a manner congruent with their situation, they merely explicate the performative meaning of precisely the enterprise they took up as soon as they decided to legitimately regulate their common life through positive law. An enterprise of this sort presupposes no more than the concept of legal form and an intuitive understanding of the discourse principle.
If talk of “the” system of rights means anything, then, it refers to the points where the various explications of the given self-understanding of such a practice converge.  … “The” system of rights does not exist in transcendental purity. But two hundred years of European constitutional law have provided us with a sufficient number of models. These can instruct a generalizing reconstruction of the intuitions that guide the intersubjective practice of self-legislation in the medium of positive law.”16

Thus Habermas achieves the promised post-metaphysical, coherent rational reconstruction of the dual foundations of our modern constitutional democracies by demonstrating the deep reciprocity between liberty and popular sovereignty.

Is this the last word on this matter? Not for me. Just a hint at the end: I can imagine a society that operates altogether without popular sovereignty, without the medium of a centralized political power, not without legal systems but without universally binding collective decisions, where free contracting assumes a much larger role and where multiple legal systems interpenetrate and are institutionalized via a competitive market for legal provisions through private organisations without monopoly of violence.  In this society political discourse does not disappear but indeed remains a crucial steering arena for societal developments, without presuming that the purpose of all discourse is to result in one-fits-all majority decisions.

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