The representing a ‘radical content of democratic

The public sphere is a
concept that plays a vital role in the procedure that concludes in political
decisions. Habermas argues that democratic law making, and judicial review are
insufficient in discussing democratic legitimacy. In addition, with legislative
decisions, judicial and administrative decisions are only ensured legitimacy
through reasons produced by an unsubverted public sphere. Otherwise this allows
political decisions to be controlled by the power struggles within the system
and not by citizens themselves, as the ones affected. Without an effective
working public sphere, there are no checks and balances on the administrative
power which controls the influence of power and communication within the system
and between the citizens and political system, which then allows the public
sphere to become a main place for problem solving and the deliberation of
citizens, which is necessary in a democracy for legitimacy.

Within the concept of
communicative power, Habermas has demonstrated important aspects of democracy
and legitimacy. However arguably this has resulted in some tensions. On one
hand, a basic understanding of communicative power allows the democratic ideals
of citizens acting in concert, representing a ‘radical content of democratic
ideals’. This is reflected on the focus of the potential of how communicative
power can be used to de-legitimise a regime which is again like Arendt’s
reading. However, Habermas is troubled by the average working of communicative
power within democratise regimes and the institutionalisation of such ideals.
The argument of whether such mobilisations of power can be democratic can only
truly be realised when it is given to a place where all citizens are given a
chance to participate. Usually communicative power is submitting power to
reason, which is a rationalisation of power but is it the same as a
democratisation of power? Power can be expansively generated but it isn’t
democratic until tested as such. Arguably Habermas has a concern with the
accountability of such decisions being binding, as his reliance on
communicative power as a role is narrow.

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Although the public
sphere is not responsible for making the binding decisions, it could be argument
enough for a limiting of its role to public opinion and influence and not
communicative power. Moreover, the bureaucratic understanding of popular
sovereignty is not envisioned to capture the knowledge of the will of the
people. Popular sovereignty exists in democratic procedures themselves, under
Habermas. By attempting to conceptualise the institutional authority of making
binding decisions within a single notion of communicative power, this is has
allowed the ideal of popular sovereignty and its institutionalised to be
captured within this concept.

Arguably this has
reflected the two arguments Habermas presents with a radical participatory
democracy and a systematic account of the problems of institutionalised
democracy within modern societies and the attempts to incorporate both is
reflected as tension within the text.


Habermas aim in his discourse
of law and democracy is to reconcile laws, morals, human rights and popular sovereignty.
By attempting to do this he aims to position justice within the law and the
deliberative democracy that makes and imposes the law. This however relies on his
interpretation of what justice is, which he believes is dependent on that which
is rational and therefore a defence of legal norms.  For Habermas, law and morals are distinct,
they are mutually exclusive, appearing side by side, which is a principle that “lies
at a level of abstraction that is still neutral with respect to morality and
law, for it refers to action norms in general” (Habermas, 1992).

This discourse principle
becomes a universal one when it is applied to moral norms.  Although when it is applied in legal norms,
this discourse becomes democratic when ‘a law may claim legitimacy only if all
those possibly affected could consent to it after participating in rational
discourses’ (Habermas, 1998).

Habermas attempts to find
middle ground between legal positivism and natural law through the
justification of legal norms through rational discourse, not just moral reasons
alone. Habermas raises the democratic principle, which is where a “law may
claim legitimacy only if all those possibly affected could consent to it after
participating in rational discourses’. This shows the democratic principle is a
species of Habermas discourse, which then justifies the assumption of legitimate
consequences and also any form of communication necessary for a formation of
the political law giver which can then ensure legitimacy and legal institionalisation.
 This means any institution must recognise
the relationship between individual rights and popular sovereignty. The concept
of the private and public independence presupposes each other. Under Habermas,
private autonomy presumes institutional preparations that secure the rights of individuals,
but these rights are terms of freedom only if the individual can understand that
they themselves are the author and addressee of the law which institutionalises
such rights.

Habermas presents a
relationship between law, politics and also morality in his discourse theory of
law; a belief that particular actions will produce laws does not necessarily
make it so; a belief in the process of legality doesn’t mean legitimise. These
events themselves must be legitimised. Habermas argues that in the rejection of
theories that define legality in terms of pre-existing formalities without
legitimising them.

Habermas argues an approach
to law which is based on the debate of two developments in the process of
social rationalisation. The separation of law from morality is vital in the
diversity of the system and lifeworld and the legal processes which help
clarify the appearances of the systems colonisation of the lifeworld in
societies.  In addition, Habermas would
also reject any attempt to reduce law to politics, as he argues that this would
undermine the very nature of political power and it would therefore no longer
be able to function as a legal authority “As soon as legitimation is
presented as the exclusive achievement of politics, we have to abandon our
concepts of law and politics” (Burtt,1990). Habermas argues that the rational society
has killed the need for religious and metaphysical justifications for law and
how it is different from the law of politics and morality. He shows that law
must be based on its legitimate legality and how legality can legitimise
through discourse principle. By showing the shortcomings in the legal positive
arguments of defining legality only in terms of practical requirements, where
it has been failed to validate law and relies solely on subjective rationality
in the legitimacy of pre-existing legal procedures.