Habermas was a member of the second generation of Critical Theory. Habermas's Critical Theory went beyond the theoretical roots of the Frankfurt school and became more life American pragmatism, which holds that both the meaning and the truth of any idea is a function of its practical outcome. In Habermas's work, critical theory transcended its theoretical roots in German idealism and progressed closer to American pragmatism. Habermas's ideas about the relationship between modernity and rationalization are in this sense strongly influenced by Max Weber.

The presently most influential feature of  Ju¨rgen  Habermas’  wide-ranging contributions to political theory is his attempt to formulate a socially critical as well as empirically plausible conception of deliberative democracy. Both his earliest contribution to political theory, The Structural Transformation of the Public Sphere (1989, published in German in 1962) and his more recent Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (1996), defend an ambitious deliberative model of political legitimacy, according to which normatively acceptable decisions are only those which meet with the agreement of affected parties in possession of far-reaching possibilities to subject them to critical debate. Not surprisingly, Habermas and those influenced by him have worked hard to outline the proper philosophical presuppositions of the basic intuition that only free-wheeling argumentation can both justify the exercise of coercive state power and contribute to its reasonable character.

In addition, they have taken important steps toward describing the appropriate institutional moorings of a vibrant deliberative democracy (Chambers 2003; Dryzek 1990; Habermas 1996), while struggling to demonstrate why deliberative democracy, when properly conceived, is the rightful intellectual heir of the early Frankfurt School (Bohman 1996). Habermas’ account of deliberative democracy is not only normatively distinct from competing for liberal and communitarian models (Forst 2001), but it also purports to pose a more credible challenge to the social inequalities and injustices of contemporary capitalist society. In addition, Habermas and his followers repeatedly insist that their version of deliberative democracy remains realistic. It not only acknowledges the fact of modern social complexity, but we can even begin to see a rough outline of its proper operations in the otherwise depressing realities of present-day political practice (Benhabib 1996; Bohman 1996; Hauptmann 2001). Al- though maintaining a critical perspective on the status quo, it avoids a methodologically flawed juxtaposition of the ‘‘ought’’ to the ‘‘is,’’ thereby offering relatively constructive guidance for those seeking to advance over-due radical reforms of the liberal democratic status quo.

The present-day critical theory obsession with deliberative democracy nonetheless seems surprising. With the notable but typically overlooked exceptions of Franz L. Neumann and Otto Kirchheimer, the early Frankfurt School tended to neglect political and legal theory altogether (Scheuerman 1994). Implicit Marxist theoretical assumptions about the state and law led its most prominent representatives (Theodor Adorno, Max Horkheimer, and Herbert Marcuse) to discount normative political theory as well as creative intellectual approaches to the analysis of political and legal institutions. Only with Habermas’ life-long programmatic overhaul of critical theory—most important being his formulation of a theory of communicative action—was it possible for Frankfurt-oriented critical theorists to grasp the full significance of normative political theory to a critical theory of society (McCarthy 1982; White 1989). Not surprisingly, Habermas and his followers have been at the forefront of recent efforts to develop critical models of deliberative democracy in which Habermas’ ideas about uncoerced speech and communication typically loom in the background.

But should critical theorists continue to devote their intellectual energy to the project of deliberative democracy? Does deliberative democracy constitute the legitimate future—and not just the contemporary—focus of critical theory? In order to answer this question, we need first to consider another one. Is there some way by which we might sensibly test the capacity of Habermasian deliberative democracy to advance both critical theory and progressive politics?

Fortunately, Habermas and those influenced by him have themselves pointed to the existence of one possible test. Over the course of the last decade, Habermas and his sympathizers have turned much of their attention to the pressing question of how democracy needs to be reconfigured in light of the sizable challenges posed by globalization. Following the broad main- stream of present-day social science, they recognize that the multi-pronged process of globalization challenges both the normative legitimacy and effective regulatory capacity of the liberal democratic nation-state. If democracy is to thrive, it needs to meet the numerous threats posed by globalization (Held 1995). Of course, critical theorists are hardly the only scholars busily examining the conflict-laden nexus between globalization and democracy. Distinct to the Habermasian approach, however, is the belief that its vision of deliberative democracy is best capable of providing persuasive resolutions to the normative and institutional quagmires of globalization. From this perspective, the most difficult challenge to contemporary democracy also provides an unambiguous corroboration of the impressive normative and empirical credentials of Habermasian political theory.

Although broadly sympathetic to this view (Scheuerman 2004, 187–224), I would like to register a number of reservations. Habermasian deliberative democracy remains profoundly ambiguous in its political and institutional ramifications. At some junctures, it points the way to a radical overhaul of the political and economic status quo; at others, it makes its peace with present-day political conditions. This programmatic tension is reproduced in recent critical theory research on deliberative democracy and globalization. Unfortunately, this tension derives at least in part from the conceptual slippage that we find in the Habermasian account. The potentially misleading imagery of an ‘‘anonymous’’ and even ‘‘subject-less’’ deliberative civil society sometimes contributes to a problematic conceptual bifurcation between deliberation and democracy. Deliberation without the meaningful (deliberative) involvement of concrete ‘‘subjects’’ is, in reality, no longer democratic. Lively deliberation is not, in fact, ‘‘subject-less,’’ and the fact that lively argumentative give-and-take often makes it difficult for us to determine the genesis or initial ‘‘possession’’ of a specific insight hardly renders it altogether anonymous either. This conceptual slippage, I submit, opens the door to a troubling tendency to condone overly defensive models of deliberative democracy for the global stage.



A striking programmatic oscillation can be readily identified in Habermas’ most developed account of deliberative democracy.1 On the one hand, Habermas at times proposes an indisputably radical vision of deliberative democracy, where free-wheeling deliberation would emerge in civil society but ultimately gain clear expression in the apparatus of government. Al- though Habermas follows Nancy Fraser in distinguishing weak from strong publics, with the latter culminating in binding legal decisions whereas the former fails to do so, there remains no structural difference between the two publics: in both, ‘‘communicative power’’ derived from spontaneous, unlimited debate and deliberation predominates (Fraser 1992). In this version of the argument, formal government institutions (most important, the central le- legislatures) are simply a technical extension of civil society, the ‘‘organized midpoint or focus of a society-wide circulation of informal communication’’ (Habermas 1996, 182).

In turn, the principle of the legality of the administration guarantees that bureaucratic mechanisms are rendered unambiguously subordinate to processes of popular debate and deliberation which effectively ‘‘determine the direction in which political power circulates’’ via the medium of law (Habermas 1996, 187). Of course, modern society still requires an administrative apparatus operating according to a distinct logic, but Haber- mas hopes that the ‘‘administrative state’’ might gain the requisite democratic legitimacy that it too often lacks. Even seemingly problematic forms of administration discretion can be successfully subordinated to the legitimacy-generating power of deliberation in which ‘‘all members of the political community take part in discourse’’ in a meaningful way. ‘‘Each must have fundamentally equal chances to take a position on all relevant contributions’’ (Habermas 1996, 182). This equality of chances is by no means purely formal in character. For Habermas, it demands an egalitarian social and economic setting that ‘‘has emerged from the confines of class and thrown oV the millennia-old shackles of social stratification and exploitation’’ (Habermas 1996, 308). A normatively legitimate deliberative democracy, it seems, can only take the form of radical social (deliberative) democracy.


On the other hand, deliberative democracy periodically takes on significantly more subdued hues in Habermas’ discussion. He often seems so intent on emphasizing the necessity of complex markets that it remains unclear precisely what social and economic reforms—beyond some sensible improvements to the (increasingly fragile) welfare state—he has in mind. He frequently describes popular deliberation as merely influencing, countersteering, or ‘‘laying siege’’ to the state administration, justifying this relatively modest aspiration with the claim that communicative power ‘‘cannot ‘rule’ of itself but only point the use of administrative power in specific directions’’ (Habermas 1996, 300). He even endorses the possibility that a truly vibrant deliberative democracy necessarily plays a limited role in the actual operations of political decision-making most of the time: typically, ‘‘courts deliver judgments, decisions, bureaucracies prepare laws and process applications, parliaments pass laws and budgets, party headquarters conduct election campaigns, clients exert influence on ‘their’ administrators’’ with civil society necessarily left at the wayside (Habermas 1996, 357).

Even those facets of government most closely tied to civil society may have to accept a truncated role: ‘‘the initiative and power to put problems on the agenda and bring them to a decision lies more with the Government leaders and administration than with the parliamentary complex’’ under normal political conditions (Haber- mas 1996, 380). In this version of his model, only during unusual or exceptional conditions (as defined somewhat imprecisely by Habermas) can we expect a genuinely robust deliberative democracy, in which the argumentative give-and-take of civil society effectively dominates the political machinery, to surface.

In the second section of this chapter, I turn to consider one of the likely conceptual sources of this tension. For now, I merely hope to show how the ongoing critical theory debate about deliberative democracy and globalization reproduces it.

Contemporary critical theorists generally endorse the view that a deliberative model of democratic legitimacy is especially well suited to the demands of globalization. Indeed, this is one of the main reasons they adduce for the superiority of their approach. Habermas defends this position by noting that his model ‘‘loosens the conceptual ties between democratic legitimacy and the familiar forces of state organization’’ (Habermas 2001a, 111). Although democracy always needs some conventional (and typically state-based) forms of decision-making and representation, the deliberative model ‘‘tips the balance’’ in precisely the right way by underscoring the centrality of a ‘‘functioning the public sphere, the quality of discussion, accessibility, and the discursive structure of opinion- and will-formation,’’ none of which is necessarily tied to a particular territory or nation-state-based political institutions (Habermas 2001a, 110–11).

For this reason, Habermas considers the paradigm of deliberative democracy especially fruitful for thinking through the possibility of developing and democratizing regional political and economic blocs (e.g. the European Union); it also helps us consider how such regional blocs might come to constitute core components of a broader cosmopolitan system of governance. Although, a world-state is undesirable, a stronger and more democratic United Nations (UN) able to exercise peacekeeping and humanitarian functions, operating in conjunction with regional blocs outfitted with the decision-making muscle necessary for pursuing ambitious regulatory policies, are now called for.2 In lucky correspondence with the ongoing intensification of cross-border ties in countless arenas of social life, Seyla Benhabib notes in the same vein, deliberation ‘‘can emerge whenever and wherever human beings can affect one another’s actions and well-being’’ (Benhabib 2002, 147). 

Deliberative democracy should prove adept at coping ‘‘with fluid boundaries’’ and producing outcomes across borders since human communication—especially in an age of high-speed communication and unprecedented possibilities for simultaneity—easily explodes the confines of conventional political and geographical boundaries (Dryzek 2000, 129; Schmalz-Bruns 1999). In the same spirit, Jim Bohman defends a ‘‘public reason’’ model of decision-making by noting that the profound pluralism characteristic of political affairs at the global level requires unrestricted communication along the lines encouraged by deliberative democracy. To be sure, Habermasians need to rethink conventional ideas about the public sphere in order to liberate them from unnecessary Eurocentric baggage, but there is no reason to preclude the possibility of doing so successfully (Bohman 1998, 1999b).

Whereas communitarian or republican accounts occlude the ‘‘fact of (rapidly growing) pluralism,’’ deliberative democracy can grapple success- fully with diversity (Bohman 1997, 185; Dryzek 2000, 129). In contrast to republican or participatory democratic decision-making models which privilege face-to-face political interaction (e.g. town meetings or mass dem- demonstrations), deliberative democracy seems well-suited to exploit the virtues of relatively abstract forms of potentially cross-border communication. For this reason, as well, it offers a fruitful starting point for theorizing about postnational democracy.

Despite this common starting point, Habermasian deliberative democrats take different roads in their approaches to globalization. Although the story is more complicated than I can acknowledge here, those roads ultimately mirror the tensions in Habermas’ own discussion. Echoing Habermas in his more radical moments, some of his sympathizers oVer a vision of global (deliberative) democracy resting on the realization of ambitious new forms of transnational democratic decision-making subject to global civil society, to be undertaken in conjunction with a plethora of radical social and economic reforms. In this version of transnational deliberative democracy, new formal institutions can be successfully established at the global level. Furthermore, the ‘‘commanding heights’’ of those institutions can be rendered directly subordinate to deliberatively derived communicative power.

Thus, Iris Young argues that ultimately only ‘‘global institutions that in principle include or represent everyone’’ (Young 2004, 11) represent the best institutionalization of the deliberative-democratic intuition that ‘‘dia- logic interaction’’ can generate regulations that ‘‘take account of the needs, interests, and perspectives of everyone’’ (Young 2004, 3).3 Given ‘‘the increased density of interaction and interdependence’’ of our globalizing uni- verse, deliberative democracy—to be achieved in part by strengthening as well as democratizing the UN—is the only way to assure the legitimacy of ‘‘more global-level regulation of security, human rights, trade regulation, [and] development policy’’ (Young 2004, 4; also Young 2000, 271–5). Young links her defense of transnational deliberative democracy to the necessity of attacking the stark poverty that still plagues humanity, observing that transnational deliberative democracy is destined to founder if poverty continues to prevent the meaningful political involvement of hundreds of millions of our fellow prospective global citizens (Young 2004, 8).

Notwithstanding its many differences vis-a`-vis Young’s ideas, David Held’s widely discussed model of a ‘‘cosmopolitan democracy,’’ which has been influenced by Habermas in numerous ways, can be placed under this rubric as well.4 Held argues that ‘‘deliberative and decision-making centers beyond national territories are [to be] appropriately situated when those significantly affected by a public matter constitute a cross-border or transnational grouping when ‘lower’ [local or national] levels of decision-making cannot manage and discharge satisfactorily transnational . . . policy questions, or when the principle of democratic legitimacy can only be properly redeemed in a transnational context’’ (Held 1998, 22–3).

He immediately links the call for novel modes of formal global government to the necessity of far-reaching social democratic social and economic reforms (Held 1995, 239–66). Last but by no means least, Habermas himself has recently taken on the role of an outspoken defender of relatively powerful forms of supranational European governance, and he has struggled to show why his discourse theory of democracy can help overcome the tired divisions between skeptics and defenders of the European Union. Only a refurbished European Union committed to the ideals of deliberative democracy, the argument goes, oVers Europeans a way to preserve democracy and the welfare state. Habermas conveniently downplays some of the distinctive features of European regionalization (Lupel 2004), in part because he tends to interpret the European Union as part of a more general institutional trend towards more ambitious forms of transnational deliberative democracy (Habermas 2001a, 2001b, 2004).

Yet critical theorists also oVer models of transnational deliberative democracy which mirror Habermas’ more cautious considerations about deliberative democracy. Although John Dryzek considers himself a left critic of many strands of Habermasian theory,5 his work reproduces Habermas’ own occasional suggestion that the ‘‘commanding heights’’ (e.g. existing centers of decision-making, as well as novel sites as conceived by ambitious models of transnational democracy) of power are unlikely to be rendered effectively subordinated to communicative power. Dryzek oVers a flattering account of transnational civil society as a site for spontaneous unconstrained communication, sharply contrasting it with the profound limitations on deliberation found in the formal political institutions of the capitalist state, where the dictates of globalizing capitalism truncate meaningful possibilities for deliberation (Dryzek 2000, 13). This contrast leads Dryzek to favor global civil society as the central and perhaps exclusive site for transnational dem- democratization. In contrast to other theorists of deliberative civil society who have emphasized the necessity of a ‘‘dualistic’’ strategy linking the democratization of civil society to democratic reforms of the formal apparatus of government,6 Dryzek tends to emphasize the threat of cooptation posed by attempts to directly exercise, rather than merely influence, formal institutions (Dryzek 2000, 107–14).

In a similar vein, Jim Bohman asserts that ‘‘globalization processes are too large and complex, escaping not only the boundaries of the nation-state but of all state-like institutions and their mode of exercising power’’ (Bohman 1999a, 508; emphasis added). In light of the necessary limitations of any state-centered strategy for democracy at the global level, Bohman tends to emphasize the virtues of a democratization strategy that extends the influence of emerging global deliberative public spheres to the existing potpourri of power holders presently operating at the global level. Although much can be said in favor of this approach, the question of the relationship between such influence and the actual exercise of power by the commanding heights of global authority still remains somewhat unclear. Bohman, in some contrast to Dryzek, appears to hold out the possibility of establishing more ambitious modes of firmly institutionalized transnational democracy; some of his observations suggest more far-reaching institutional aims. Yet his skepticism about conventional forms of state authority—including, it seems, conceivable postnational varieties—leaves unresolved the question of how conflicts between competing global publics ultimately might be mediated and given a binding legal form.

In these more cautious accounts of transnational deliberative democracy, understandable skepticism about the prospects of centralized global government, in conjunction with a realistic assessment of the pathologies of the contemporary capitalist state, risks generating a truncated vision of democracy. After all, inXuence is not, per se, equivalent to an elective exercise of power (Maus 2002, 249). To be sure, extending the influence of civil society to existing sources of authority at the global level is an admirable political goal. Yet vassals also ‘‘influenced’’ feudal lords; children and wives influenced patriarchal husbands and fathers. By neglecting the question of how the commanding heights of global power could be directly subjected to popular self-legislation, these models risk throwing out the baby with the bathwater.

In contrast, the core idea of modern democracy requires the exercise of political power in accordance with rules and laws freely consented to by those affected by them. In this classical view, democracy requires autonomous self-legislation. In the context of deliberative democracy, this traditional democratic idea can be fruitfully reformulated as requiring that there can be ‘‘no rule of [deliberative] reasons apart from the self-rule of citizens by justified reasons’’ (Forst 2001, 374).7 Models of transnational democracy which reduce the unfulfilled quest for self-rule by deliberative citizens to the popular influence (or, in Habermas’ appropriation of systems-theory jargon, counter-steering) of seemingly impermeable global power blocs fail to pay proper fidelity to core democratic aspirations. To put the point more bluntly: deliberative influence does not a democracy make. Only the exercise of the commanding heights of decision-making by deliberative citizens can achieve democracy. At the transnational level, this requires us to think even harder about how both existing and hitherto unrealized forms of transnational authority can be clearly subordinated to the preferences of deliberative self-legislating citizens.


To what do critical theory analyses of deliberative democracy owe this peculiar oscillation between ‘‘radicalism and resignation’’ (Scheuerman 2002a)? Might not its ubiquity in Habermasian theory suggest the existence of a deeper conceptual weakness?

A certain conceptual slippage plagues Habermasian accounts of deliberative democracy. The problematic implications of that slippage are especially evident in recent discussions of transnational democracy.

Typically, Habermasians start with a bold account of the normative under- pinnings of legitimate decision-making. In this account, only those norms are legitimate when agreed to in a process of deliberation having the following attributes:

(1) participation in such deliberation is governed by norms of equality and symmetry; all have the same chances to initiate speech acts, to question, to interrogate, and to open debate;

(2) all have the same right to question the assigned topics of conversation; and

(3) all have the same right to initiate reflexive arguments about the very rules of the discourse procedure and the way in which they are applied (Benhabib 1996, 70).

This normative ideal would probably have revolutionary consequences if applied to the global arena. It seems to require the reconfiguration of global political and economic power so that every one of the planet’s billions of inhabitants might possess equal and uncoerced chances to determine, via free-wheeling deliberation resulting in a binding rule, the character of any decision influencing his or her activities. Not surprisingly, writers like Iris Young and David Held rigorously pursue this normative intuition by advocating fundamental alterations to the distribution of economic resources on the global level. But one might legitimately wonder whether even their sensible  reform  proposals  ultimately  would  suYce  given  the  shocking  in- equalities plaguing present-day material conditions. Nor is it startling that some Habermasian deliberative democrats consequently embrace ambitious models of cosmopolitan democratic government, where supranational for- mal institutions would take on many tasks presently exercised by the nation-state. Given the transnational character of countless forms of human activity, such institutional aspirations would appear to make eminent sense.

At the same time, immediate problems present themselves to defenders of this approach. It seems fundamentally utopian given present economic and political conditions. Can anyone really imagine the United States peacefully surrendering its dominant military position within the international state system, or for that matter the privileged rich countries acceding to a fundamental global redistribution of economic resources?

Thus far, they have aggressively resisted even relatively modest (and relatively inexpensive) efforts to reduce global starvation. It remains unclear whether those who defend an ambitious application of Habermasian ideas to the global arena have sufficiently answered these practical questions (Zolo 1997). On a more systematic level, applying Habermas’ basic normative vision to the global arena also potentially undermines one crucial claim for its intellectual superiority vis-a`-vis competing approaches. As noted above, Habermasians suggest that republican and participatory democratic models of decision-making unrealistically exaggerate the necessity of relatively direct forms of small- scale, face-to-face political exchange. But does not their model require an equally dramatic politicization of the (global) citizenry? 

Deliberative democracy in this account calls for a substantial quantitative increase as well as qualitative improvement to existing forms of political deliberation. Closer to republican and participatory democratic models than probably acknowledged, deliberative democracy demands a vast increase in participation and difficult old-fashioned ‘‘political work,’’ since deliberation itself is obviously a form of participation. Revealingly, Benhabib speaks of ‘‘participation in deliberation,’’ notwithstanding her attempts to contrast the deliberative model favorably to competing ones (Benhabib 1996, 70; Hauptmann 2001). In fact, deliberation is an especially time-consuming and fragile form of participation, since it requires tremendous patience, a rare willingness to hear others out, and the careful evaluation of often ambiguous assertions and claims. The achievement of meaningful transnational deliberation is likely to be at least as arduous and demanding in terms of the scarce resource of time as many other transnational political endeavors.

Not surprisingly, many Habermasian deliberative democrats hesitate before embracing this radical interpretation of deliberative democracy. Other elements of Habermas’ account oVer a ready basis for a fall-back position. Unfortunately, those elements pave the way for an unsatisfactory account of transnational democracy.

Typically, the audacious normative model underlying the demand for deliberative democracy is quickly translated into the institutional demand for ‘‘a plurality of associations,’’ or ‘‘interlocking net of . . . multiple forms associations, networks, and organizations’’ constituting ‘‘an anonymous ‘pub- lic conversation’ ’’ (Benhabib 1996, 73–4). Although formal institutions are both necessary for the protection of deliberation and are expected to codify its results via binding general laws, the real site for creative political deliberation remains a decentered civil society characterized by a multiplicity of associations. Benhabib favorably contrasts this pluralistic model of ‘‘anonymous’’ deliberation to the traditional ‘‘fiction of a mass assembly carrying out its deliberations’’ in the form of one concrete unified body or institution.

The concretistic and overly unitarian ‘‘fiction of a general deliberative assembly’’ fails to capture the properly pluralistic character of deliberation (Benhabib 1996, 73). In undertaking this political translation of Habermas’ deliberative model, Benhabib is simply following Habermas himself, whose Between Facts and Norms (1996) similarly announces the death of historically anachronistic ideas of a sovereign democratic macro-subject, in which society is conceived as a unified ‘‘body’’ or collective subject; Habermas repeatedly scolds traditional democratic thinkers for endorsing overly concretistic interpretations of the normative ideal of popular sovereignty. The original theoretical inspiration for Benhabib’s reflections is replete with references to the anonymous and even ‘‘subject-less character’’ of lively deliberative politics (Habermas 1996, 136). Parallel descriptions of an anonymous deliberative civil society are now commonplace in critical theory literature.

At first glance, this translation seems harmless enough. Popular sovereignty has indeed been interpreted in many unconvincing ways in modern political thought. Who could persuasively claim that a single deliberative legislature can either legitimately or effectively ‘‘stand-in’’ for pluralistic people and the ‘‘plurality of associations’’ they employ?8 Habermas and his followers rightly praise the virtues of a vibrant civil society and lively process of deliberation in which ideas and arguments ‘‘move’’ and ‘‘flow’’ in an unpredictable and even anarchic fashion, and they understandably celebrate, in a postmodern spirit, the death of anachronistic ideas of a unitary sovereign macro-subject as the proper carrier of democracy.

They are also right to oVer a proceduralist reading of the idea of popular sovereignty. Given this starting point, the appeal of such terms as anonymous and subject-less seems obvious. As we all know from the practical discourses in which we unavoidably engage, it often remains unclear who initiated a specific argument or to whom it ‘‘belongs.’’ Many times we simply do not care: lively argumentative give-and-take can seem anonymous and even subject-less because fruitful deliberation often flows in complex and unexpected ways. We may be more interested in the practical resolution of whatever question or task is at hand than assigning credit for good arguments and blame for unproductive contributions. Our contributions to debate can generate unexpected consequences, taking on meanings or significance that we would never have imagined possible beforehand.

This translation of the basic normative model of deliberative democracy provides a reason for concern, however. Its over-stylized and undialectical contrast between unity and plurality, anachronistic macro-subjects and subject-less deliberation, and ‘‘concretistic’’ vs. ‘‘desubstantialized’’ popular sovereignty helps obscure one of the most basic issues of democratic theory: how can the plurality of deliberative civil society undergo an effective funneling into a (unified) expression of democratically legitimate political power? If civil society is to result in coherent legislation to which deliberative citizens have agreed, if only in a relatively indirect institutional fashion (e.g. by representative bodies), subject-less discourse and debate must ultimately take a unified (that is, generally applicable) binding form.

To the extent that political decision-making requires that civil society ultimately speaks with ‘‘one voice,’’ political unity still must be achieved if ‘‘anonymous’’ and ‘‘subject-less’’ civil society is to speak coherently and decisively.9 For traditional democratic theory, formal political institutions play a decisive role in generating this necessary moment of unity. Of course, Habermasian deliberative Democrats have proposed a number of thoughtful institutional in- novations (Benhabib 2002; Young 1990). Yet too little intellectual energy has been devoted to examining the proper role of those institutional mechanisms—most important, perhaps, general law-making and the rule of law— which historically have played a decisive role in making sure that civil society can act effectively and coherently via binding legal norms.

To be sure, achieving even a minimum of such unity at the transnational level poses enormous hurdles in light of the unprecedented complexity and profound pluralism we find there. The UN, of course, constitutes an important attempt to do so. Yet one might legitimately wonder whether even a strengthened UN might successfully meet the stunning regulatory tasks at hand. How might we subject the ‘‘neo-feudal’’ power blocs (organizations like the World Trade Organization (WTO) and International Monetary Fund (IMF), international arbitration bodies, various forms of ‘‘soft’’ transnational legal regulation, etc.) presently operating on the global scene, in both a normatively satisfactory and institutionally realistic fashion, to democratic self-legislation? What form might general legislation and the rule of law sensibly take at the global level? To be sure, non-state bodies will undoubtedly play a key role as we struggle to oVer a real-life institutional answer to these questions. But an insufficiently critical homage to (non-state) ‘‘governance’’ should not lead us to obscure the indispensable functions existing state and new state-like institutions will need to perform in achieving novel forms of self-legislation and the rule of law.

Whereas much of the critical theory work on these issues remains defensive and even anxiety-ridden, tending to emphasize the threats posed to democratic self-legislation and the rule of law by globalization   (Maus 2002; Scheuerman 2002b; 2004, 144–226), some theorists working in the Habermasian tradition have begun to tackle these issues in more constructive ways. Hauke Brunkhorst, for example, worries that transnational decision-making is subject to weak but not yet strong publics. Civil society exercises moral influence, but only a ‘‘ ‘loose coupling’ between discussion and decision’’ can be found at the global level (Brunkhorst 2002, 679). Arguing that we can separate the normative kernel of constitutionalism from its familiar carrier, the modern state, Brunkhorst shares the understandable skepticism of grandiose proposals for new forms of extended state authority at the global level. Yet because normatively attractive legal and constitutional ideas can still be salvaged from the wreck of the declining nation-state, weak global publics might still successfully be transformed into strong (that is, legally enforceable) publics via ‘‘egalitarian procedures for the formation and representation of a global volonte general, which would provide ‘direct access for all the interests concerned’ ’’(Brunkhorst 2002, 686; 2005).

The important point, for now, is to recognize the potential perils of an interpretation of deliberative civil society that misleadingly generates unwarranted neglect—and even skepticism—of the necessity of institutional mechanisms that will need to play a crucial role in realizing the legally binding and effectively accountable general results of free-wheeling deliberation. Unfortunately, some strands of Habermasian deliberative democracy probably succumb to those perils. Not surprisingly, they ultimately engender a defensive account of transnational democracy in which global publics and civil society do little more than influence or counter-steer the commanding heights of global authority. The self-legislation of the deliberative citizen is thereby reduced to one of its presuppositions, a free-wheeling deliberative civil society. Without more effective institutional devices, however, existing global power holders will continue to disregard global civil society if they so desire.

Another potential error flows from the imagery of an ‘‘anonymous’’ and ‘‘subject-less’’ civil society. Of course, a lively deliberative democracy is only anonymous and subject-less in a metaphorical sense. If a legitimate deliberative democracy rests on genuinely free and equal opportunities for everyone to deliberate about matters impacting them, the resulting deliberative process will in reality rest on the input of numerous subjects. Properly speaking, it is neither anonymous nor subject-less. Indeed, its core ideal makes it incumbent on us to ensure that everyone might have the opportunity to participate meaningfully in public debate and deliberation and shape decision-making. As noted in the previous section, deliberative democracy is not per se the ‘‘rule of deliberative reasons,’’ but instead should be properly understood as the ‘‘self-rule of citizens by (deliberative) reasons.’’ The danger here is that the translation of deliberative democracy into anonymous and subject-less discourse risks downplaying indispensable democratic attributes of deliberative democracy; it may also lead those who reproduce this imagery to embrace correspondingly misleading institutional proposals.

Deliberative democracy only deserves to be described as democratic if deliberation is undertaken by (concretely situated human) subjects for the sake of achieving self-rule or self-legislation. The peril at hand is that this translation threatens unwittingly to privilege (‘‘anonymous,’’ ‘‘subject-less’’) deliberation over democracy by downplaying the central place of self-legislating (and deliberating) subjects to democracy. As the German critical theorist, Ingeborg Maus similarly worries, by transforming the principle of popular sovereignty into freely fluctuating, subject-less deliberation, in Habermas’ theory ‘‘communicatively generated power threatens to become nearly ubiquitous’’ (Maus 1996, 875). But this move potentially makes it difficult to assure the strict legal accountability of state actors to the sovereign people, which Maus rightly describes as a necessary precondition of democratic self-legislation (Maus 1992). To whom exactly are state agents to be made accountable if the demos is always fluid and subject-less? How are its desires to be effectively funneled and ultimately given binding general legal form if communicative power is both ubiquitous and fundamentally fluid in character? How might it ever succeed in carefully regulating the exercise of administrative power?

Some of Habermas’ recent writings on transnational democracy confirm the basic soundness of this concern. He has recently relied on a distinction between ‘‘democratic procedures whose legitimacy rests on the grounds that they are fair and open to all, and democratic procedures defended on the grounds that both deliberations and decisions have sufficiently rational character’’ (Fine and Smith 2003, 476–7). This distinction arguably parallels the general tendency to overstate the practical differences between participation and deliberation, as well as to downplay the centrality of the actual (deliberative) participation of those concrete subjects affected by whatever norm or rule is under scrutiny in favor of the potentially misleading imagery of anonymous and subject-less deliberation. To put the point polemically (and rather crudely): if legitimate deliberation can be anonymous and somehow subject-less, perhaps we need not worry too much when actual deliberative input possesses a relatively limited participatory basis. In Habermas’ own words democratic procedure no longer draws its legitimizing force only, indeed not even predominantly, from political participation and the expression of political will, but rather from the general accessibility of a deliberative process whose structure grounds an expectation of rationally acceptable results. (Habermas 2001a, 110; emphasis added)

Many intergovernmental negotiating and transnational decision-making bodies lack the former. According to Habermas, they possess the latter, however. That is, they lack significant popular participatory input via conventional state forms, yet they nonetheless ground ‘‘an expectation of rationally acceptable results’’ and thus can perform, with some degree of success, what we might describe as useful epistemic functions, in the sense of generating ‘‘rationally acceptable results’’ (Habermas 2001a, 110; Fine and Smith 2003, 476). They raise the information level and contribute to rational problem solving because they include different parties and often adhere to arguing as a decision-making procedure and not voting and bargaining. To various degrees such bodies inject the logic of impartial justification and reason-giving into transnational bodies of governance. (Eriksen and Weigard 2004, 251)

For this reason, Habermas concludes, the supposedly ‘‘weak’’ legitimation of some transnational bodies, when understood in light of his model of deliberative democracy appears ‘‘in another [more positive] light’’ (Haber- mas 2001a, 111).

As Robert Fine and Will Smith point out, however, this argument downplays the indispensable role of democratic representative bodies and threatens to dissolve any link between deliberative civil society and formal political institutions (Fine and Smith 2003, 477). Discussing the implications of Habermas’ ideas for the European Union, they worry that the development of a civil society ‘‘in isolation from such representative institutions might enhance the feeling of detachment’’ and alienation already widespread in relations between European citizens and institutions (Fine and Smith 2003, 477). More generally, Habermas’ distinction potentially opens the door to a relatively conciliatory reading of actual transnational decision-making bodies, many of which undoubtedly achieve useful ‘‘epistemic’’ functions but hardly rest on broad democratic deliberation. Many deliberative processes in the transnational setting arguably contribute to a measure of ‘‘rationally acceptable results.’’ Unfortunately, few of them can claim to provide sufficient institutionalization for deliberative global citizens who need to make sure that their preferences gain a binding legal form.


At the beginning of this chapter, I suggested that recent Habermasian at- tempts to tackle the normative and institutional quagmires of globalization oVer a useful test for determining whether the paradigm of deliberative democracy should continue to occupy the energies of critical theorists. How then has deliberative democracy fared on this test? If I am not mistaken, the results look mixed. Although Habermas-inspired deliberative democracy has undoubtedly enriched the ongoing debate about the prospects of transnational governance, it remains both programmatically and conceptually tension-ridden. If it is to prove intellectually fruitful in the future, critical theorists will need to make sure to avoid the worrisome tendency to discount the indispensable democratic core of the idea of deliberative democracy.

They will also need to move beyond disappointing defensive models of trans-national democratization, while simultaneously showing why deliberative self-legislation can be meaningfully realized at the transnational level without succumbing to utopianism. Even though self-legislation has primarily been realized within the confines of the nation-state in modernity, we now need to consider how it can legally be secured at the transnational level, most likely with only limited aid from novel forms of formal supranational state organization. Needless to say, these are difficult challenges. The basic intellectual richness of critical theory, however, suggests that it remains at least as well-positioned as its main theoretical competitors to rise to those challenges.

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