Habermas and the Crisis of Democracy

Interviews with Leading Thinkers

Emilie Prattico

• Publisher: Routledge
• Year: 2022
• Print ISBN: 9780367700829
• eBook ISBN: 9781000596991
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

"Emilie Prattico has used the lens of a discourse-theoretic conception of deliberative democracy to engage eight prominent colleagues in stimulating interviews. They critically illuminate the various ways that a sound democratic regime depends upon the deliberative milieu of an inclusive public sphere." - Jürgen Habermas

The continued rise of populism and authoritarianism throughout the world has witnessed an alarming attack on basic democratic freedoms and led to a divided political and social world. Few thinkers have done as much as Jürgen Habermas to understand and critique these problems, perhaps most famously through his notions of the public sphere, deliberative democracy, and discourse ethics.

In this fascinating book, Emilie Prattico considers the crisis of democracy from a Habermasian standpoint via engaging interviews with an outstanding lineup of leading philosophers and thinkers. The following key topics are unpacked and explored:

• Can some basic rights and liberties be given up to safeguard democracy? With Hauke Brunkhorst
• How does actual deliberation confer legitimacy to democratic decisions? With Cristina Lafont
• Why is "fake news" a crisis of democracy? With Michael Lynch
• How can we build a public sphere together and share it in a world characterized by divisiveness and tribalism? With Barbara Fultner
• Can democracy survive without the voice of experts? With Kenneth Baynes
• How dangerous are the current forms of authoritarianism we are seeing take hold all over the world? With María Pía Lara
• What does the public sphere look like with new technologies? With Gertrud Koch
• What duties do we owe descendants of slaves and how do we reckon with our antidemocratic and oppressive past? With Lorenzo Simpson

Also including a Foreword by Habermas himself, this book is essential reading for anyone seeking to understand the challenges facing democracy and liberalism today. It will be of great interest to those in philosophy, sociology, and politics as well as related fields such as religion and law.

1 Can Some Basic Rights and Liberties Be Given Up to Safeguard Democracy? With an Interview with Hauke Brunkhorst

DOI: 10.4324/9781003144519-2

My experience of democracy in the last few years, and I suspect it is the experience of many citizens of democracies around the world, is that it is not only constantly threatened but increasingly so. Does a day go by without a new egregious action against an institution or a constituency? Does a day go by without a claim to basic justice on the part of people who have been treated unfairly by those in power? In the face of this barrage of events, I am left with the strong yet indistinct feeling that democracy is at stake but it is not evident to what extent and how. We know since the contractarian theories of Hobbes, Locke, and Rousseau that constituting a polity requires that we give up some basic freedoms so that we can live together. But the more we see democracy attacked, then defended, and attacked again, and so on seemingly ad infinitum, the nearer impossible it is to distinguish between fatal attacks and genuine attempts at protecting it.

Social contract theory, like much political theory, aims to show that members of a society are justified in accepting and complying with basic rules, norms, and institutions qua members of that society. What distinguishes social contract theory is that this justification is procedural – embodied by the hypothetical contract – and is oriented to the protection of substantive freedoms that precede it conceptually. For its modern proponents, our contingent social history impedes on these primary freedoms, and to overcome this, we must constitute ourselves as a political body with rules, norms, and institutions, along strong democratic and egalitarian principles. This constitution functions both as a protection of our primary freedoms and as a recognition as those freedoms that we may give up in favor of the polity. At the very founding of modern democratic theory lies two ideas: there are fundamental freedoms in contradistinction to other types of freedom, and that some freedoms can be given up in favor of living together, presumably not fundamental ones.

Habermas can under one interpretation be read as in the lineage of social contract theory, if not a direct heir to it. To the extent that he takes the constitution – either as a moment or as a document – as the foundation of democratic polities and as the safeguard of our most basic rights, he recognizes the same two ideas. Further, he sees this founding event as a relation between citizens. For Habermas, it is inherent to communicative practices; for the thinkers of the 18th and 19th centuries, it is a fictional yet original moment expressive of our deepest nature. Habermas does not, however, see basic rights as temporally primordial but as equiprimordial or ‘co-original.’ In modern social contract theory, rights precede the constitution, which arises because of the need to protect them. “Which comes first,” Habermas (2001a) writes, “the individual liberties of the members of the modern market society or the rights of democratic citizens to political participation?” The historical account of how the principles of rule of law and popular sovereignty united leaves us with the paradoxical concept of constitutional democracy where we must rank the two principles: fundamental rights and popular sovereignty through democratic practices.¹

For Habermas, autonomy lies at the center of all strands of modern democratic theory, both the liberal and the republican, and is primordial on both views. Where they differ is in how our freedom is guaranteed under conditions of living together. Liberalism, such as Locke’s, tends to prioritize private autonomy over democratic practices: freedom is defined as the extent to which citizens can realize themselves and pursue their individual aspirations while others do the same – herein lies the limit to our freedom. On the other hand, the republican strand, exemplified by Rousseau, it is the collective self-determination of the political community that determines how free we are: specifically, citizens are free to the extent that they live by laws that they have given themselves through democratic practices. Faced with these two options, “political philosophy has never really been able to strike a balance between popular sovereignty and human rights” (Habermas 1998b, p. 258). To say that both are co-original is to dissolve this paradox (Habermas 1996, p. 84).

In short, Habermas’s view is that fundamental rights, or human rights, and popular sovereignty, through democratic practices, presuppose each other and are internally related. There is no temporal sequence and no conceptual priority between them:

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 7 communication necessary for the genesis of legitimate law can be legally institutionalized.

(Habermas 1996, p. 104)

For citizens to be able to exercise their popular sovereignty by participating in democratically making the laws that govern their society, they must also be endowed with the rights that allow them to communicate and deliberate with each other. In this way, the rights of participation and the private rights that allow citizens to have views and express them if they so wish presuppose each other. For Habermas, rights are not endowed to humans prior to politics, but are rather relations that individuals mutually recognize and confer on each other when they agree to regulate their common life via the medium of positive law. Consequently, the legal order that protects the private autonomy of the citizens also provides the institutional conditions under which citizens can address one another collectively as a democratic community, as authors of legitimate law, and that would explain why citizens must also be warranted classic liberal civil liberties in order to be both authors and addressees of legitimate law (Habermas 1998b, p. 176).

This theoretical foray into Habermas’s “theory of co-originality” is intended to help us articulate the question whether some rights can be curtailed or outright violated in the name of democracy or some other condition of living together such as safety. Specifically, our basic rights as they are stated in and protected by the constitutions of the various democratic polities of the world continue to be at stake in the balance between deploying the coercive power of law and exercising those very freedoms. Though they vary from country to country in their specific formulation, they are captured by the United Nations Universal Declaration of Human Rights and include rights to self-determination, liberty, due process of law, freedom of movement, privacy, and freedoms of thought, religion, expression, peaceful assembly, and association (United Nations 1948). The UN’s declaration does not have the political force of a national constitution, but it has the benefit of providing a strong expression of those rights that are necessary for democratic processes – or in Habermas’s view, co-original with them.

Examples from the past two decades of these very rights being threatened, weakened, or curtailed abound and indeed show no sign of abating. In the wake of the Twin Tower attacks in 2001, the United States passed the Patriot Act – full name, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act. It covers a lot of ground. Some of its provisions are uncontroversial, such as creating funds to assist victims of terrorism; not all of its provisions have withstood legal scrutiny; yet others are still being contested in court. Some, however, have become entrenched in the American legal and political system, such as the foundations for the mission of the Department of Homeland Security, which did not exist when the law was passed. Moreover, it has become the symbol for some of the most worrying aspects of the US government since 2001, namely its ability to collect millions of communication records with very few obstacles or oversight. For instance, one of the permanent programs to grow from the Patriot Act is the “National Security Letters” program, which let the government demand communication records from telecom companies without going through the surveillance court for approval first. It is out of the Patriot Act that was born the surveillance program at the heart of Edward Snowden’s whistleblowing in 2013. For the two decades that these programs have existed, such revelations cemented citizens’ expectation that the American government flouts the right to privacy of its citizens. It is only in September 2020 that the surveillance program of the National Security Agency was deemed illegal by federal courts.

Beyond being illegal, however, these programs crystallize a tension that has been prevalent outside of the United States, too. Passed after the terrorist attacks on lower Manhattan and the Pentagon in 2001, the Patriot Act was justified by its proponents as a measure to protect the safety of citizens. In a 2005 New York Times Op Ed written at the time the senate was to vote for an extension, the mayor at the time of the attacks Rudy Giuliani wrote that he supported this vote “I support the extension of the Patriot Act for one simple reason: Americans must use every legal and constitutional tool in their arsenal to fight terrorism and protect their lives and liberties” (Giuliani 2005). The then president George W. Bush echoed this view in March 2006 after a successful vote to extend the Act when he said

The Patriot Act is vital to the war on terror and defending our citizens against a ruthless enemy. This bill will allow our law enforcement officials to continue to use the same tools against terrorists that are already used against drug dealers and other criminals, while safeguarding the civil liberties of the American people.

(Bush 2006)

The primary justification used by proponents of this bill was the safety of Americans against acts of terrorism. Interestingly, these justifications also appealed to the protection of their freedoms though in fact the Patriot Act consisted on the curtailment of rights to privacy most particularly.² Since then, attacks by terrorist factions such as ISIS increased in Western democracies until they peaked in 2014 – they only started declining when ISIS itself declined. All the while, and not necessarily in response to terrorism, laws that threatened basic rights were passed in all of these countries using the same rhetorical tricks: safeguarding citizens and maintaining peace, and if rights were curtailed in the short-term, it was so that they could be protected in the longer term.

Indeed, on the heel of the Yellow Vests protests in 2019 in France, the President, Emmanuel Macron, proposed a law that includes giving the power to search demonstrators and ban them from covering their faces. He even submitted a provision which would have given police the right to ban anyone preemptively identified as a troublemaker for demonstrating, though this was struck down by the Constitutional Court. This legislation was put forward, unsurprisingly, as a way to protect the safety of French society. The provisions that did pass are deemed to threaten basic rights to privacy and indeed justify the use of force by police in a way that makes it more likely it will violate citizens’ rights to life, security, and freedom from cruel punishment (United Nations 2004).

It was protests too that spurred the Chinese government to impose national security legislation in Hong Kong in 2020. This set of laws was not reviewed or debated by the Hong Kong people – the first violation of basic rights, in this case of self-determination – and is designed to punish dissent, violating the basic right of citizens to participate in public affairs by engaging in criticism, opposition, and dissent. It is likely that this will be implemented through agencies of the Chinese government, such as the Ministry of State Security and the National Security Bureau of the Ministry of Public Security, which are known for rights violations in China, namely by resorting to arbitrary detention and torture (Human Rights Watch 2015). In the Philippines, security was also the rationale communicated to citizens when Duterte passed the “Anti-Terrorism Law” in June 2020, and thereby granting his administration an arsenal of measures to repress the population, giving it the ability to label, detain, and eliminate government critics. Based on a rather loose definition of terrorism, that includes vague offenses such as “engaging in acts intended to endanger a person’s life,” intended to “damage public property,” or “interfere with critical infrastructure,” where the purpose is to intimidate the government, it also claims, in a move reminiscent of US lawmakers, to protect basic liberties and rights.

The year 2020 presented democracies with another threat against which governments have deployed a series of measures that have raised concerns about basic rights: the global pandemic of COVID-19. The most extreme set of measures was passed shortly after the outbreak of the pandemic in March 2020 by the Hungarian government, allowing President Orbán to rule the country by decree that is without consulting lawmakers. Turning the country into a de facto dictatorship, the legislation was justified as an emergency response to the coronavirus pandemic. Less egregious but nonetheless raising questions were the numerous – and almost universal – lockdown laws and facial covering rules. International human rights law guarantees everyone the right to the highest attainable standard of health and obligates governments to take steps to prevent threats to public health and to provide medical care to those who need it. Under this law, public health officials can, in a state of emergency, legitimately make certain rules reasonably necessary to protect public health. These restrictions must be based on scientific evidence, be time-limited, be nondiscriminatory, be proportionate to the threat, and be subject to regular review (United Nations 1966). Broad quarantines and lockdowns of indeterminate length typically do not meet these standards. They have tended to be imposed hastily and without precautions for the protection of the most vulnerable. Because they are difficult to enforce uniformly, they can be considered arbitrary or even discriminatory. When it comes to enforcing the wearing of face masks, similar criticisms can be leveled since consistent implementation and enforcing is extremely difficult. Some have also raised the concern that the rule to wear masks was disproportionate and inefficient in some circumstances. In the case of public health – as opposed to alleged threats of terrorism – the dilemma faced by governments is much more evident and indeed provided for by international human rights frameworks.

There are numerous claims that these measures are in violation of basic rights. Comparing the case where lawmakers allege that restrictions are necessary in order to fight terrorism or domestic unrest and the case of the responses of governments to COVID-19 can be instructive in order to understand whether a violation is really taking place. In the former case, rulers allege that the duty to protect citizens from terrorism trumps the duty to protect their liberties in the immediate term. There is a tension at play and governments are prioritizing one duty over the other. They do this on the basis of often spurious evidence or argumentation about the nature of the threat of terrorism and about the proportion of the means necessary to thwart it. One of the issues in this case is the possibility that restrictive measures are taken for goals that are not transparent to citizens. Indeed that citizens spend time contesting to no avail. Another issue is that it is unclear that restricting freedoms is the only, or even an efficient, way to thwart terrorism. In comparison, where the response to the 2020 global pandemic is concerned, there is also tension at play between two duties: the duty to prevent threats to public health and the duty to protect the freedom of movement of citizens. In this case, the consensus of scientists and pu...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgments
• Notes on contributors
• Foreword
• Introduction
• 1 Can Some Basic Rights and Liberties Be Given Up to Safeguard Democracy? With an Interview with Hauke Brunkhorst
• 2 How Does Actual Deliberation Confer Legitimacy to Democratic Decisions? With an Interview with Cristina Lafont
• 3 Why Is “Fake News” a Crisis of Democracy? With an Interview with Michael Lynch
• 4 How Can We Build a Public Sphere Together and Share it in a World Characterized by Divisiveness and Tribalism? With an Interview with Barbara Fultner
• 5 Can Democracy Survive without the Voice of Experts? With an Interview with Kenneth Baynes
• 6 How Dangerous Are the Current Forms of Authoritarianism We Are Seeing Take Hold All Over the World? With an Interview with María Pía Lara
• 7 What Does the Public Sphere Look Like with New Technologies? With an Interview with Gertrud Koch
• 8 What Duties Do We Owe Descendants of Slaves and How Do We Reckon with Our Antidemocratic and Oppressive Past? With an Interview with Lorenzo Simpson
• Index