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P O L I T I C AL STU D IES: 2000 VO L 48, 503–521 The Politics of Inclusive Agreements: towards a Critical Discourse Theory of Democracy Shane O’Neill Queen’s University, Belfast This article offers a critical assessment of Jürgen Habermas’s discourse theory of democracy. It suggests that the main thrust of a discursive account of legitimacy is the attempt to show how the demands of maximal democratic inclusion might be reconciled with a politics of reasoned agreements. While this aim is endorsed, the thrust of the argument is that a critical theory of democracy requires that normative frameworks that bring certain substantive features of democratic life into focus should supplement Habermas’s procedural approach. First, the account of maximal inclusion has to be developed in a way that clarifies the egalitarian demands of distributive justice. Secondly, the account of a politics of reasoned agreements has to be connected to a theoretical analysis of the bonds of solidarity that could underpin such a form of political engagement. These developments contribute to a critical theory that gives a more adequate account of the motivational basis of discursive democracy. Every theory of democratic legitimacy that refers itself to the context of a modern pluralist society has to reckon with a possible tension between the demands of inclusion and the need for reasoned agreements among citizens. On the one hand, if each citizen of a constitutional state is to be thought of as a free and equal member of a self-regulating legal community, then the theory has to show how law can be legitimated in ways that take account of the variety of perspectives that citizens will bring to bear on matters of common concern. No citizen, or group of citizens, should be excluded from a democratic process of legitimation. Relevant interests and needs, values and aspirations, convictions and conceptions of identity, must somehow all be factored into our law-making procedures. On the other hand, the theory must also reflect the fact that democratically grounded law should be based, at an appropriate level, on the freely given consent of the governed, and not on oppression, violence or any implicit threat of coercion. From this normative perspective, laws, if they are to be legitimate, must not be a consequence of war by other means, or a reflection of the interest of the stronger. If it is the free consent of the governed, as opposed to oppression or violence, that is to be a vital source of democratic legitimacy then it must be possible for every citizen to have some good reason to recognize the law’s validity. The effort to show how the demands of maximal inclusion and reasoned agreement might be reconciled is the defining characteristic of Jürgen Habermas’s discourse theory of law and democracy (Habermas, 1996). As a critical theory of democracy, however, Habermas’s project remains incomplete. Critical theory has always been concerned with the philosophical articulation of the human impulse to emancipate ourselves from the causes of oppression and injustice. A critical © Political Studies Association, 2000. Published by Blackwell Publishers, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA 504 SH A N E O ’N EILL theory of democracy should show us how to transform our form of life in an emancipatory manner. While Habermas offers us the most promising account of the procedures according to which laws must be legitimated under conditions of democratic pluralism, there is, from the perspective of a critical theory of democracy, a need to supplement this procedural approach with more substantive normative analyses of the conditions that are favourable to the just legitimation of law. The account of inclusion has to be supported with a framework that clarifies the substantive demands of egalitarian justice. Furthermore, the account of a politics of reasoned agreements has to be connected to a theoretical framework that seeks to unearth the bonds of solidarity that could underpin such a form of political engagement. We have to develop these more comprehensive aspects of democratic theory if we are to address the question as to why we might be motivated to engage as citizens in an inclusive, discursive process that seeks to legitimate law on the basis of reasoned agreements. We know from the reality of political conflict that the desire to discover the best rational arguments on contentious issues is often not sufficient to initiate, or to sustain, inclusive political discourse. What we need to know is why the intersubjective quest for political agreements is worth the effort involved. Why bother to spend valuable time and energy participating in the democratic process? We may also wonder why this quest should outweigh any other interests we might have in resisting such engagement, or in breaking off from it prior to resolution. Why listen to opposing viewpoints, or accommodate the interests of others, or revise our goals for the sake of the common good? What is needed is an account of the emancipatory features of a discursive democracy. While Habermas acknowledges the importance of the question of motivation by claiming that ‘deliberative politics is internally connected with contexts of a rationalized lifeworld that meets it halfway’, he does not address this problem directly (Habermas, 1996, p. 302). Indeed, due to his characterization of modernity as a post-metaphysical age, he gives an unnecessarily restrictive account of the philosophical task of critical democratic theory by limiting it to the justification of discursive procedures of legitimation (Habermas, 1993, pp. 69–75; 1996, pp. 443–6). If we are to get a clearer picture as to what kind of social relations the institutionalization of this form of politics requires, then we will have to move beyond this restriction by bringing into focus certain substantive features of democratic life. First, by theorizing the substance of egalitarian justice, we can explore the material basis of human relations in a society that could sustain a flourishing and inclusive form of discursive democracy. Secondly, by developing a theoretical analysis of the bonds of solidarity appropriate to such a form of politics we can explore the cultural basis of relations among citizens who are committed to resolving their differences through the achievement of reasoned agreements. As we will see, such philosophical accounts of the substance of democratic life offer a more sharply critical assessment of contemporary societies since they emphasize the fact that a discursive model of democracy, based on a politics of inclusive agreements, can only be embedded in a modern context as an aspect of a radical process of social transformation. By revealing the material and cultural preconditions of discursive THE PO LI TI C S OF I N C L U S I V E AG R E E M EN TS 505 politics, this critical theory of democracy addresses the problem of motivation more effectively than can be done under the restrictions of Habermas’s proceduralism. Two Irreplaceable Sources of Democratic Legitimacy How are procedures of law-making to be inclusive of the perspectives of all citizens if reasoned agreement is thought to be an irreplaceable source of democratic legitimacy? It might be suggested that these demands are not only in tension with one another but that, in many cases, they are incompatible. We can think of numerous controversies where it may appear to be the case that no law could be based on the reasoned agreement of all concerned. Can we agree on the norms that should inform laws regulating abortion? Or the treatment of nonhuman animals? Can controversies related to cultural or national difference, such as those surrounding the conflict in Northern Ireland, really be resolved by reasoned agreement? Many will claim that there are incommensurable positions involved in these controversies and that no shared rational basis for agreement can be found. This assertion rules out, in a dogmatic and inappropriate fashion, the very possibility of agreement. Whether or not these controversies can be resolved by agreement is an empirical question that cannot be given a determinate answer one way or another in a theoretical inquiry. Participants may fail to reach agreement but if they do so no credit will be due to those theorists who view incommensurability as always being inescapable. Similarly if agreement is reached it will be the citizens concerned who achieve it and no credit will be due to philosophers or social theorists who maintain that apparent incommensurability can always be overcome. Theory neither draws actual agreements out of diverse social positions nor does it derail actual processes of agreement among citizens. What a critical theory can do, however, is to show how agreements that are rationally grounded but respectful of difference, and therefore nonoppressive, might be possible in the pluralist context of a modern, complex society. Critical democratic theorists seek to explore how contentious issues of moral and cultural pluralism might be dealt with in a way that minimizes the potential for oppression, alienation and violence. This means that incommensurability must not be taken as a given, or as something to be celebrated. Nor should it be brushed aside as something that will inevitably be overcome. It should be thought of as a potential obstacle to nonoppressive social relations. Since oppression and violence are often rooted in conflicts of worldviews, a critical democratic theory should present a challenge to those who hold these incommensurable positions by indicating some alternative path beyond the impasse. We will assess, later, a variety of forms of political reasoning that provide such paths beyond incommensurability. These are aspects of Habermas’s procedural account of democratic legitimacy and they can, I suggest, when taken together, show how reasoned agreements might be possible on the many contentious issues facing pluralist societies. As we will see, we can agree that a law is legitimate for differing reasons, and at various levels. By showing how inclusive agreements might be achieved, and oppression overcome, Habermas’s discourse theory offers a normative ideal that gives us a critical perspective on actual processes of law-making. The legitimation of laws is always 506 SH A N E O ’N EILL an ongoing process and all laws are, in principle, revisable. New problems may require new laws and any current law could be deemed to be inappropriate under new historical circumstances. But there are other reasons we might have for rethinking legislation in a public discourse. We have grounds for doubting that an actual law best approximates this normative ideal if it can be shown that the law was passed through a violation of the free use of communicative reason (Habermas, 1984; 1987). We might discover, for example, that the process was set up so as to exclude the perspective of some particular group whose interests are affected directly by it, or that some people had been misinformed about the likely consequences of the law’s implementation. A law cannot be legitimated, from this normative perspective, if no reasons at all are offered to a dissenting minority to affirm it. In some cases the main reason offered might be the acknowledgement that, in the absence of a rational consensus on the substantive issue, majority rule represents the fairest outcome. In such a case the minority would accept the legitimacy of the law in an indirect manner, and for procedural rather than substantive reasons (Habermas, 1998b, pp. 393–7). If a law is legitimated in this majoritarian manner, however, there is an onus on the majority not only to allow the dissenting minority to continue to make a case for changing that law, but to listen to that case and to give it due consideration. A refusal to listen to such a minority would be oppressive. While the dissenting minority may not take up any of the reasons offered in support of the substance of the law, they can affirm the legitimacy of the procedure since it allows for further deliberation and possible future revision of that law (Habermas, 1996, pp. 179–80). It should be clear by now that while it is vital, from this perspective, that all citizens are offered some good reason to assent to the legitimacy of a law, it is equally vital that all perspectives are included in the democratic process. Inclusion and agreement are complementary but equally irreplaceable sources of legitimacy. No agreement can be rational, and so nonoppressive, if those who dissent from the dominant viewpoint are effectively excluded from the decision-making process. All citizens must be able to participate in the democratic process with a reasonable expectation that others will listen to their point of view and give their reasons due consideration. Without that expectation those citizens would be subject to a set of laws without having any sense of being their authors. There can, of course, be no guarantee that their reasons will be taken up by others but there must be the expectation that any citizen’s perspective could shape the outcome of the lawmaking process. The only reasoned agreements we can have, therefore, are those that arise from an inclusive process where all concerned have effective opportunities to give voice to their perspectives. In what follows I will argue that while Habermas’s project of reconciliation presents us with essential elements of a normatively critical theory of democracy, his project is incomplete. What it offers us is a framework of justifiable procedures for the democratic legitimation of law. These procedures, however, can only operate under certain favourable conditions and a comprehensively critical theory of democracy that addresses the question of what motivates such a form of politics must clarify what these conditions are. So while Habermas’s theory can show us how incommensurability might be overcome in an inclusive discourse, it does not tell us why THE PO LI TI C S OF I N C L U S I V E AG R E E M EN TS 507 we should participate in a discursive political process or why we should make the effort to go beyond an incommensurability of rival positions. Inclusion: Private and Political Autonomy From the perspective of Habermas’s discourse theory the democratic project is concerned with the ongoing realization, in the context of a particular constitutional state, of a set of rights that is presupposed by the idea of a self-regulating legal community. An adequate formulation of a legally valid set of individual rights depends on the discursive character of political will-formation. It is the way in which the political will is established that is crucial to its legitimation. Citizens must be capable of understanding themselves not only as addressees of legal norms but also as the authors of those norms. The key to Habermas’s characterization of this ongoing project is the claim that private and political autonomy, as expressed in terms of morally grounded human rights and the principle of popular sovereignty, mutually presuppose one another (Habermas, 1996, pp. 84, 99–104, 118–31, 409–27, 454–7). Reason and will are brought together in a discursive process of opinion and willformation that constitutes the mode in which political autonomy is exercised. The free use of communicative reason, where citizens employ language in a way that is oriented to mutual understanding, gives these processes their legitimating force (Habermas, 1996, p. 103). In a communicatively rational process of will-formation, each participant is free to assess whether or not a contested norm could meet with the agreement of all those possibly affected. It is in this way that Habermas understands the mutual presupposition of private and political autonomy. [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. (Habermas, 1996, p. 104) The system of rights that is presupposed by the idea of a self-regulating legal community gives equal weight to the private and the political autonomy of the citizen. These rights are constitutive of the relationship between citizens of a constitutional state. They are rights we must mutually grant one another if we are to regulate our life in common by means of legitimate law. These rights guarantee equal liberties that secure for the individual a private space where publicly acceptable reasons do not have to be given for her action. In this private space each of us is free to drop out of communicative action (Habermas, 1996, p. 119). But private liberties are not prior to the civil rights that guarantee our participation in the politically autonomous practice of making law. If we are to understand ourselves as authors of the law then we must think of these individual liberties as rights that are granted reciprocally. We confer on one another the status of rights-bearing citizens and in doing so we make possible the exercise of our civic autonomy. Legally institutionalized self-legislation of a political community is not possible without a guarantee of individual liberties and these liberties can only be equalized through a democratic procedure that satisfies the demands of political 508 SH A N E O ’N EILL autonomy by ensuring that oppression and violence are avoided. Private and political autonomy are co-original (Habermas, 1996, pp. 118–22, 454–7; Baynes 1995). If the law is to be binding on all citizens then these rights must be enforced against possible violation. This represents an important aspect of the tension between facts and norms around which Habermas reconstructs his account of law and the constitutional state. The facticity of coercive law that enforces respect for the system of rights is inextricably intertwined with the law’s claim to validity. Legal norms ‘have to bring about willingness to comply simultaneously by means of de facto constraint and legitimate validity’ (Habermas, 1996, p. 27). Our motives for complying with the law are left open. We might comply for prudential reasons because we want to avoid the consequences of not doing so; but it must also be possible for us to comply because we have good reason to recognize the validity of the law (Habermas, 1996, pp. 83, 114–18). In this way law relieves citizens of the burden of constantly engaging in communicative action in order to satisfy their need for social integration. It stabilizes behavioural expectations by securing the compatibility of citizens’ liberties and so it allows moral contents to ‘spread throughout a society along the channels of legal regulation’ (Habermas, 1996, p. 118). But law can only make morality effective in this way if its legitimacy is grounded in the principle of popular sovereignty and if the citizens can understand themselves as authors, and not only as addressees, of the law. How is this possible in complex modern societies? Habermas offers a social-theoretical account of the way in which political autonomy is exercised in modern constitutional states. The language of law acts as a transmission belt, or transformer, that picks up messages originating in the ordinary language of everyday communication among citizens and translates them into an abstract but binding form that is comprehensible to the complex anonymous systems that mediate interactions among strangers (Habermas, 1996, pp. 81, 448–9). Law is the hinge that makes communication possible between the lifeworld of everyday communication and the systems of state administration and economic markets (Habermas 1987; 1996, p. 56). Citizens become aware of new problems, and they spontaneously begin to form opinions about them. Through their activity in civil society, these problems are opened up for discussion in the informal public sphere which acts as a warning system for the formal constitutional structures in identifying new problems and providing some potential solutions for them before they are taken up by legislative bodies (Habermas 1989; 1992; 1996, p. 359). This flow of public influence can only be transformed into communicative power, however, after it has passed through the institutionalized procedures of democratic opinion and will-formation that act as a system of sluices, or a legitimation filter (Habermas, 1996, pp. 356, 371–2, 440). So while popular sovereignty has its origins in undistorted flows of communication in the informal public sphere, it generates legitimate political power only through formal lawmaking procedures. Habermas’s account of these procedures of democratic legitimation aspires to be maximally inclusive in that it highlights the way in which a public sphere that is sensitive to the needs of citizens throughout society can transmit issues from the periphery to the formal political system at the centre. But the question arises as to how we might ensure that the public sphere will be truly sensitive to the needs of THE PO LI TI C S OF I N C L U S I V E AG R E E M EN TS 509 all citizens. Habermas is alive to the danger of oppression that arises if the public sphere is vulnerable to subversion by the distorting effects of illegitimate social and economic power or an overextension of administrative and bureaucratic imperatives. He draws on Fraser’s distinction between the ‘weak’ public of unregulated communication that generates public opinion and the ‘strong’ public of institutionalized decision-making processes (Fraser, 1992; Habermas, 1996, pp. 307–8). In the weak public sphere, communication is entirely unrestricted and spontaneous thus making it possible for associations and social groups to engage in open processes of sensitive problem formulation, expressive identity clarification and reflective need interpretation. This ‘wild’ complex of ‘overlapping, subcultural publics’ each with ‘fluid temporal, social and substantive boundaries’ forms an anarchically structured ‘pluralistic public sphere’ that drives the democratic agenda in a politically autonomous manner (Habermas, 1996, p. 307). It seems to be the case, however, that something fundamental is not dealt with adequately in Habermas’s account. This is the presupposition that an inclusive democratic society can only be regulated by a substantively egalitarian conception of distributive justice. The flow of undistorted communication that originates in this ‘wild’ public sphere must be protected by a set of constitutional rights that makes equal citizenship socially effective. If these rights were not effective for all then the subversion of the public sphere by illegitimate power would be inevitable. Nothing but a guarantee of socially effective equal citizenship could unleash the communicative power that makes possible a radically inclusive, nonoppressive democracy. We must guarantee to all citizens the conditions of private autonomy if political autonomy is to be realized. But which substantive conception of egalitarian justice is presupposed here? On this matter Habermas’s position is somewhat ambiguous. The Material Basis of Inclusion In his account of the basic rights that make possible the generation of legitimate law Habermas specifies five categories of rights (Habermas, 1996, pp. 122–3). The first four are essentially civil rights that guarantee equality of: (i) individual liberties; (ii) membership status; (iii) legal protection; and (iv) communicative freedom in exercising political autonomy. It is the fifth category that is of particular concern here since it is connected to the substantively egalitarian demands of distributive justice. Habermas speaks of those ‘basic rights to the provision of living conditions that are socially, technologically and ecologically safeguarded, insofar as the current circumstances make this necessary if citizens are to have equal opportunities’ to exercise these four categories of civil rights. This fifth category also differs from the other four since, according to Habermas, it can only be justified in relative terms while civil rights are ‘absolutely justified’ (Habermas, 1996, p. 123). Civil rights make possible the ongoing interpretation of a state’s political constitution and the same civil rights are interpreted in distinctive ways given the historically unique nature of each state (Habermas, 1998a, pp. 215–20; O’Neill, 1997, pp. 173–9). But the content of these basic rights of material condition that are appropriate to a particular context must, from Habermas’s procedural perspective, be determined not by philosophical reflection but by citizens in actual discourses. 510 SH A N E O ’N EILL All citizens are to be treated as equals and it is up to them to decide for themselves what the criteria of equal treatment should be. They must assess the extent to which legal equality requires factual equality if the private and public autonomy of each citizen is to be guaranteed (Habermas, 1996, pp. 418–27). Private autonomy can only be secured if particular groups of citizens articulate their specific need interpretations and if they engage in a publicly communicative process that clarifies the demands of equal citizenship. As Habermas puts it, in relation to the struggles of contemporary women’s movements, public discussions must first clarify the aspects under which differences between the experiences and living situations of (specific groups of) women and men become relevant for an equal opportunity to take advantage of individual liberties…Today these social constructions can be formed only in a conscious, deliberate fashion; they require the affected parties themselves to conduct public discourses in which they articulate the standards of comparison and justify the relevant aspects. (Habermas, 1996, p. 425) The equal right to private autonomy depends on a vibrant and energized public sphere in which the political autonomy of every social group with specific needs and interests can effectively be exercised. The main point is that no social group is excluded from the democratic process and the danger of subversion is guarded against by the citizens themselves engaging in the ongoing project of guaranteeing that the equal rights of citizenship are socially effective for all. This procedural model of justice is certainly sensitive to the fact that philosophy cannot override the political autonomy of citizens. No philosopher can take on board the perspectives of all social groups and so all citizens must be allowed to represent themselves in an inclusive dialogue that can lead to collective insights about the demands of distributive justice. This is the main reason why Habermas resists the philosophical attempts of those, such as Rawls, who seek to develop substantive accounts of distributive justice (McCarthy, 1994, p. 61). But must all such philosophical accounts of the substance of egalitarian justice undermine the political autonomy of citizens? We should distinguish here between the basic norms that would constitute a structural account of the substance of distributive justice and the particular norms of distribution that are appropriate to specific contexts. It seems to me that if maximal inclusion is a condition of political autonomy, as Habermas’s theory shows, then critical democratic theorists must concern themselves with the former, structural, aspects of the substance of distributive justice while leaving questions regarding particular norms up to citizens themselves. In working out a structural account of basic distributive norms, we can hardly be accused of undermining political autonomy. What we are actually seeking to do is to unearth the material conditions of maximal inclusion by assessing how communicative freedom is to be effective for all members of a politically autonomous community. What we need, therefore, is some theoretical guidance as to how to structure socioeconomic relations in a way that maximizes democratic inclusion, a substantive account of egalitarian justice that leaves plenty of scope for the exercise of citizens’ political autonomy. Since a critical theory should be concerned with conditions of emancipation, there does not seem to be any convincing reason for us to resist this project. In fact, by not taking this task on, Habermas runs the risk of undermining THE PO LI TI C S OF I N C L U S I V E AG R E E M EN TS 511 the prospects for the institutionalization of a discursive democracy. These prospects can only be enhanced by the philosophical attempt to clarify the material conditions in which such a form of politics must be embedded. Furthermore, we could then begin to address the question as to why all affected citizens might be motivated to participate in political discourses dealing with matters of mutual concern. This project confronts directly the fact that our continuing failure to guarantee for all citizens equal opportunities to be effective in the exercise of communicative freedom is a major cause of political disaffection. If citizens are to be motivated to participate in the legitimation of laws, then they will need to feel confident that the process will be driven by the reasons shared among free and equal citizens and not by the effects of any material inequalities between them. In capitalist societies material inequalities tend to drive the political process in at least two ways. First, the costs of participation in politics can be high in terms of finance, time and energy and so those with few of these resources are ill-equipped to contribute. Secondly, the private control of investment tends to constrain citizens in their policy preferences since they are dependent on the economic power of those with significant resources to invest. When a law is driven by material inequalities rather than rational deliberation, it distorts the legitimation process and undermines the equal status of citizens. If some citizens feel that they do not have a reasonable expectation that others will listen to them, or give their point of view due consideration, then the inevitable consequences for them will be political alienation and social marginalization. In this way material inequalities are often the cause of de facto exclusion and the consequent rupture of the political community. Political autonomy requires that opportunities to shape the outcome of legitimation processes must be effective for all. How are we to guarantee such equality of effective communicative freedom for all citizens? Discourse theorists cannot remain neutral in debates concerning the substantive demands of distributive justice. In the first place, as I have suggested above, only substantively egalitarian conceptions could be considered to be potentially compatible with discursive democracy. This means that discourse theory needs to be more explicit in its critique of the anti-egalitarian individualism of certain libertarian conceptions of distributive justice (Nozick, 1974). Secondly, competing egalitarian theories have to be evaluated critically in an effort to assess which of them accords best with the attempt to equalize effective communicative freedom. Several critics have highlighted the limitations of egalitarian theories that focus on welfare or utility, since these fail to address the plurality of possible interpretations of well-being. Among the alternatives we need to consider, in particular, the rival claims of theories seeking to equalize resources (Rawls, 1972; Dworkin, 1981) and those seeking to equalize capabilities (Sen, 1992). The significant advantage of the capabilities approach from the perspective of discourse theory is that this approach is sensitive, in a way that the resources approach is not, to the differing abilities among groups of citizens to convert resources into capabilities (Bohman, 1996, pp. 123–32). We certainly need to ensure that nobody is excluded from the political process because they lack the resources that would allow them to raise issues of concern to them, but we also need to ensure that citizens have the capabilities required to use their resources effectively. 512 SH A N E O ’N EILL What are the capabilities involved in empowering citizens to articulate their perspectives on matters of mutual concern? Citizens need to be capable in at least three ways. First, they should be able to introduce new themes into political discourse and to raise public awareness about issues that affect them. Secondly, they should be able to question effectively any unwarranted assumptions or prejudices that dominate current discourse and that result in certain groups suffering a deficit of due respect. Thirdly, they should have the necessary cognitive skills that allow them to evaluate critically a variety of competing claims, including the ability to adopt a self-critical perspective towards their own claims (Knight and Johnson, 1997, pp. 298–9; Bohman 1997). If we are to equalize effective communicative freedom then we need to attend to these three basic capabilities associated with political agency. The discursive ideal would seem to require not just maximal inclusion but also equality of effectiveness in the exercise of communicative freedom among all citizens who participate in the democratic process (Knight and Johnson, 1997, pp. 302–4; Bohman 1997, p. 338). A focus on capabilities allows us to assess the relative effectiveness of various political actors. If every citizen’s perspective is to count equally, then each should be capable of shaping the outcome of the political discourse, or of having an ‘equal opportunity of political influence’ (Knight and Johnson, 1997, p. 292). While the reasons offered by some may not be taken up by others, what is crucial is that we all feel confident that our reasons will be given due consideration by others. Appropriate principles of distributive justice for a discursive democracy are to be specified with reference to the equalization of effective communicative freedom in terms of our basic capabilities as citizens. The question as to how this equalization is to be achieved raises a wide range of issues that we cannot explore here. For example, careful consideration has to be given to the precise role that market economies would play in a society hospitable to the institutionalization of discursive democracy. The total absence of markets seems not only unworkably inefficient but also normatively dubious since there is no clear democratic model of how fundamental liberties can be protected without some use of market mechanisms. But this leaves plenty of scope for limiting the logic of the market so that it cannot lead to the type of material inequalities that affect basic political capabilities in distorting the democratic process. For example, the dependence of contemporary capitalist states on private and corporate investment does have such distorting effects in that it allows the economically powerful to constrain the political agenda. In order to rectify this we may need to insist on public control of major investment (Cohen, 1989). Political autonomy can be exercised freely only when class differentiations have been eroded to the extent that no social group has its interests subjugated to those of another. Further vital issues arise in relation to education and to the division of labour in the workplace and the home. We develop the basic capabilities of political agency in these spheres and so we should try to structure them in ways that afford each of us effective opportunities for such development. Another area that requires attention is the mode of communication within the public sphere. Here we need to consider how to structure the ownership of the mass media in a way that helps to equalize effectiveness with regard to our basic political capabilities (Keane, 1991). How is information transmitted? Can we ensure that information is used THE PO LI TI C S OF I N C L U S I V E AG R E E M EN TS 513 in a way that encourages open and rational political discourse? To whom are information-providers accountable? We also have to evaluate the opportunities and dangers associated with the current technological revolution in electronic communications, notably the development of an internet culture. Who has access to these new technologies? How can they be used in a way that encourages critical and open discourse? It seems clear that the effort to equalize the basic capabilities of political agency will initiate a programme of radical socio-economic transformation. The agenda that is opened up takes us far beyond the proceduralism of Habermas’s account of democratic legitimation. We should at least explore the structure of an egalitarian conception of distributive justice appropriate to this model of politics if critical theorists are to offer a philosophical response to the question as to why citizens should be motivated to engage in the democratic process. All citizens will have reason to believe that every perspective will count, and count equally in political discourse, if they know that socio-economic relations are structured in such a way that material inequalities cannot distort the political exercise of communicative reason. The democratic process can be maximally inclusive of all citizens’ perspectives only in a substantively egalitarian society. This use of philosophy can only enhance the prospects for the mutual realization of private and political autonomy. For this reason, Habermas’s fear about the dangers of philosophical encroachment on questions that should be left to citizens themselves seems to be unfounded. The Politics of Reasoned Agreements We must now confront the issue as to how legitimate law is to emerge from the ‘wild’ complex of interaction that is the source of political autonomy in a discursive democracy. How is reasoned agreement possible on the legitimacy of laws regulating controversial issues that are thrown up by the unrestricted flow of communication in the public sphere? It has already been noted that this unrestricted flow of communication can only be converted into political power once it has passed through formal procedures of law-making. Having considered the conditions of maximal democratic inclusion, we must now analyse these formal procedures so as to understand how agreement might be possible among all citizens. In assessing Habermas’s own efforts to show how the demands of inclusion and agreement can be reconciled we will discover another significant limitation of his procedural account of democracy. It will, hopefully, become apparent that a comprehensively critical theory of discursive democracy needs to outline the substantive socio-cultural conditions that provide a motivational basis for citizens’ efforts to work towards reasoned agreements in political discourse. Since there are different logics involved in their procedures of argumentation, positive law must not be subordinated to morality (Habermas, 1996, pp. 108–18, 151–7, 233–7, 450–3). Habermas’s procedural account of democratic legitimacy should not, therefore, be confused with the moral theory he first (misleadingly) presented as discourse ethics (Habermas, 1990; 1993, p. vii). Habermas acknowledges the fact that a variety of different modes of reasoning can feed into democratic politics and so the processes involved are more complex than those 514 SH A N E O ’N EILL associated with moral argumentation. While moral concerns do feed into these political processes so too do ethical-political and pragmatic matters, as well as fair compromises negotiated by social groups holding competing value orientations and interest positions through normatively regulated processes of bargaining (Habermas, 1993, pp. 1–17; 1996, pp. 159–68). Ethical-political matters involve the clarification of collective self-understandings and the pursuit of whatever is good for us as a political community while pragmatic matters involve the choice of the most efficient means for a set end. It is clear that even if the demands of law must not conflict with those of morality, law is much broader in scope since it allows for the balancing of competing interests, the pursuit of collective goals and the expression of particular identities. Legitimate law must pass the test presented by the principle of democracy. This is a specification of the general discourse principle (D), which states that: Just those action norms are valid to which all possibly affected persons could agree as participants in rational discourses. (Habermas, 1996, p. 107) Since the principle of democracy establishes a procedure for legitimating norms that can be given a legal form, Habermas gives it this formulation: Only those statutes may claim legitimacy that can meet with the assent of all citizens in a discursive process of legislation that has itself been legally constituted. (Habermas, 1996, p. 110) Legal norms tend to be more concrete that moral norms since they are not based on claims that are unreservedly universalizable. They serve, in contrast, as the grounds for the legitimate self-regulation of a particular legal community. One of the merits of Habermas’s model is that it identifies the various forms of reasoning noted above as a range of resources that are available to us in our efforts to reach political agreements so that all can have good reason to assent to the legitimacy of the law. These differing modes of reasoning are complementary aspects of the ongoing democratic law-making process. Of course, contrary to what many of his critics seem to think, we do not have to agree about everything so as to avoid oppressive outcomes. In fact, each of these uses of political reason is designed to facilitate agreements that allow for a continuing diversity of interests, values, identities or convictions. When we agree to a fair compromise we continue to pursue differing, even conflicting, interests and values. In settling a dispute by compromise, say between motorists and activists expressing environmental concerns regarding the access of cars to a city centre, both parties gain something even if neither achieves everything they had initially hoped for. We might agree pragmatically to endorse a balanced policy designed to maximize the efficiency of the health service even when experts continue to disagree as to what might be the best way forward. Devolution has ethical-political implications in that it transforms Britain’s political way of life. The arrangements in Scotland and Wales introduced in 1999 are designed, however, to facilitate the expression of certain cultural and national aspects of a pluralist British identity. Finally, we may agree on the moral justifiability of a constitutional right to freedom of religious belief even as we disagree on our religious convictions. THE PO LI TI C S OF I N C L U S I V E AG R E E M EN TS 515 Most complex issues will normally be resolved through the use of a number of these modes of political reasoning (Habermas, 1996, p. 565 n3). When we accept a compromise we are not only endorsing a particular balance of interests or values but also the moral fairness of the conditions from which the bargain emerges. Indeed a compromise, such as one that might be struck between motorists and environmentalists, will for one party or the other probably also have pragmatic, ethicalpolitical and moral aspects. This compromise might, for example, be informed pragmatically by expert opinion on infrastructural or economic needs, ethically by a sense of the kind of urban lifestyle to which people aspire, and morally by a respect for individual freedom and choice. It is in this sense that we can assent to a law’s legitimacy for differing reasons. It is always possible, however, that having made use of all the various modes of political reasoning available to us we may still not be able to achieve a reasoned consensus. It does not follow that oppression and violence are inevitable. If agreement is not achieved directly through discourse then the parties to a dispute could also find reason to affirm a procedurally justified decision (Habermas, 1998b, pp. 393–7). So, having engaged in an inclusive discourse where the perspectives of all concerned have been articulated, the parties might decide to vote on it and agree to abide by the view of the majority, or a qualified majority or whatever, depending on the circumstances. In fact this is how parliamentary democracy, when it is responsive to the needs of citizens articulated in the public sphere, does in fact function. Such procedurally justified conclusions can still be thought of as indirectly agreed outcomes that avoid oppression and violence. They pass the test provided by the principle of democracy even if it is only the decision making procedure, rather than the norm of action itself, that is directly affirmed by all concerned. It is in this sense that we can assent to a law’s legitimacy at differing levels. By noting how all of these modes of political reasoning and decision making procedures can play a role in facilitating the achievement of reasoned agreements, we could do a detailed analysis of the possibilities for reconciliation on every contentious issue that might arise in a pluralist society. Disputes about the effective equalization of opportunities could be resolved through some combination of the pragmatic, ethical and moral uses of reason along with a willingness from the participants to accept fair compromises or to abide by procedurally regulated outcomes. Even more intractable disputes such as those regarding controversial moral questions concerning abortion, or the treatment of nonhuman animals, or questions of cultural and national difference such as those raised by the conflict in Northern Ireland, could, I suggest, all be shown to be in principle resolvable (Habermas, 1998b, pp. 392–3). But again, it would seem to be the case that something fundamental is not adequately dealt with in Habermas’s account. While it is of great value to show how reasoned agreements are possible on all these contentious issues, the crucial question of motivation is left aside. Why should citizens engage in the efforts required to achieve the reasoned agreements that can produce legitimate law? Why should they accept the challenge of using reason so as to move beyond the apparent incommensurability of their positions? 516 SH A N E O ’N EILL The Cultural Basis of a Politics of Agreement In order to reach reasoned agreements citizens may have to engage in a selftransformative process of dialogue in which they reinterpret their needs, interests, values, convictions, or indeed their identities (O’Neill, 1998). If reconciliation is to be achieved between vegetarians and carnivores on the treatment of nonhuman animals, then all participants will have to endorse a principle of tolerance that recognizes an equal right of coexistence for citizens pursuing either lifestyle. This endorsement will facilitate an ongoing political discourse that can explore how the law might be used to protect the interests of animals in an appropriate manner. For those who initially deny carnivores, or vegetarians, an equal right to coexist, the recognition of this principle of tolerance, should it be achieved, will involve a selftransformative reinterpretation of at least some of their values or convictions. Ongoing political reconciliation in Northern Ireland, and the implementation of a constitutional settlement that affirms an equal right of coexistence for nationalists and unionists, has similarly engaged many of the participants in a self-transformative process of reinterpreting aspects of their interests, aspirations and political identities (O’Neill, 1997, pp. 189–90, 193–7). But what motivates participants to do this? Why should the effort to accommodate the justifiable claims of others drive us to such self-transformative reflection? A procedural theory can tell us how reasoned agreement might be possible, but it cannot tell us why we should prioritize the need to achieve reconciliation with others over other values or interests we might have (Habermas, 1993, pp. 127–8). Habermas believes that philosophy should be restricted in this way because once it makes substantive claims it must necessarily appeal to particular historical or personal contexts and so it cannot secure a universal basis for the affirmation of those claims (Habermas, 1993, pp. 69–75, 88–105; 1996, pp. 64, 443–6). It is because of the pluralist nature of modern societies that political philosophy must, for Habermas, refrain from making substantive claims. He acknowledges the fact that as a conception of democratic politics this procedural approach can only have weak motivating force. It does not connect directly with the motives that would drive us towards reconciliation with others on contentious issues. Rather this approach relies on a hospitable culture that philosophy itself cannot provide, a culture characterized by tolerance and reasonableness, a distinctively liberal culture. If this culture can be created in the wake of processes of modernization, as Habermas seems to suggest that it can be, then the possibilities for a politics guided by rational procedures, are, he thinks, greatly enhanced (Habermas, 1984, 1996, p. 302). But once again this foreclosure of the role that philosophical reflection might play in democratic theory seems rash. Why deny, in advance, universal validity to philosophical claims concerning the motivational complexes of human subjectivity (Habermas, 1996, p. 64)? There is no good reason why philosophers should not pursue more comprehensive philosophical projects that are attentive to the substantive reasons for our political actions, while remaining sensitive to contemporary conditions of pluralism (Ferrara, 1998; Critchley and Honneth, 1998). Discursive reconciliation depends on participants sharing some substantive values, however thin, since there would appear to be no alternative basis for the expectation that all parties could be motivated to seek reasoned agreements with one THE PO LI TI C S OF I N C L U S I V E AG R E E M EN TS 517 another on contentious matters. If we are to give an adequate critical-theoretical account of the motivational forces that would encourage citizens to work their way beyond initially incommensurable political positions, then we need to explore, on the one hand, the potential for creating bonds of solidarity around substantive values that all citizens could share. On the other hand, we also need to confront the socio-psychological obstacles that might prevent some citizens from engaging with the legitimate concerns of others. An important platform for the development of such philosophical perspectives is provided by those who encourage a return to the Hegelian notion of recognition that had been central to some of Habermas’s early work (Habermas, 1972; Honneth, 1995; Bernstein, 1995; Smith, 1997). Honneth (1995) seeks to develop a philosophically-inspired anthropological account of the structure of human subjectivity by connecting personal identity to three forms of mutual recognition: love, rights and solidarity. The overall aim of the project is to show that no identity can be stable if it fails in its struggle for the recognition of those others with whom one’s life is intertwined. The various bonds of mutual recognition that are formed in primary or intimate relations (love), in legal relations (rights), and through communities of shared value (solidarity) are conditions of personal autonomy, or selfrealization (Honneth, 1995, p. 129). When a subject experiences disrespect through personal violation, the denial of her rights, or the denigration of her way of life, she is denied due recognition, and she suffers in relation to her basic self-confidence, or the respect and esteem she feels towards herself. The feelings of shame that are associated with such forms of disrespect lead to emotional experiences where one might come to realize that ‘one’s own person is constitutively dependent on the recognition of others’ (Honneth, 1995, p. 138). These feelings can then motivate resistance to the injustices associated with disrespect and a collective effort to overcome the kind of antagonism that destroys the bonds of recognition that are universal conditions of self-realization. While Habermas continues to stress the need for citizens to engage in rational deliberation so as to sort out their differences, Honneth’s perspective digs deeper into the sources of human motivation for political reconciliation through mutual recognition. Since our own self-realization depends on the recognition of those others with whom we have to interact, then perhaps it is best that we reach some accommodation with them based on reasoned agreement, rather than allowing a conflict, where the potential for disrespect festers, to become entrenched, or even to escalate. If our self-esteem depends on a recognition from others of the dignity of our own particular form of life, then self-realization is conditional on some collectively shared goals that can provide a common horizon of valuation. None of us, therefore, can afford to allow shared values that act as sources of social solidarity to be depleted. This concern can bring parties to political conflicts, such as vegetarians and carnivores, or the parties to the constitutional dispute in Northern Ireland, to the realization that their own life-projects can only be set on a secure path if they achieve a reasoned agreement with their political adversaries on the basis of some shared standard of value. The argument that bonds of mutual recognition represent universal conditions of self-realization underpins the two tasks of critical theory referred to above: the 518 SH A N E O ’N EILL articulation of values that could be shared by all citizens of a modern pluralist society; and the exploration of socio-psychological obstacles to political reconciliation. These tasks allow us to use philosophy as a tool that clarifies the cultural basis of a politics of reasoned agreements. With regard to the first task, we must be careful to ensure that the substantive values that we articulate are consistent with the conditions of modern pluralism in respecting difference and in affirming values that foster such respect, including those of equality and individual autonomy. In this sense what philosophy should do is to retrieve those substantive values that are constitutive of the modern democratic condition itself, rather than the values that are unique to one particular tradition. We are seeking a structural account of the cultural values that foster human relations in which citizens would be willing to engage in a discursive form of democratic politics by committing themselves to work their way beyond an incommensurability of positions towards a reasoned agreement. Values such as tolerance, fair-mindedness, openness and sensitivity to difference will all feature in such a structural account. There are a number of projects in contemporary philosophy that seek to engage in some such task. Ethical liberals, for example, those who advocate a liberal conception of the good rather than a neutral procedure of justification, have, with progressive communitarians, tried to connect our ideas about liberal justice to our aspiration to live a good life (Galston, 1991; Dworkin, 1995). Hermeneutically inspired philosophers have also mined rich traditions of meaning in our culture so as to tap into the sources that might motivate political action (Taylor, 1989). These projects should inform a critical democratic theory to the extent that they excavate the substantive values that foster the cultural basis for a politics of reasoned agreements appropriate to a pluralist context. The point is to assess what kind of culture nourishes the intersubjective bonds of solidarity that allow us to deal reasonably with pluralism. What are the virtues of good citizenship? The second task is to show how certain cultural and socio-psychological dispositions hinder the workings of political reason by destroying the basis of human solidarity. We can think of a number of dispositions that fit into this category: religious dogmatism; the overzealous pursuit of idealistic causes; nationalistic xenophobia; various forms of prejudice including racism, sexism, sectarianism and homophobia; bitterness, resentment and the inability to forgive past injustices. When these dispositions are widespread they are, in many instances, the primary causes of oppressive social relations but they also prevent the emergence of any resolution to social conflicts by making the achievement of reasoned agreements virtually impossible. The root problem here is one of closed identities and the tendency among some people to view group difference exclusively in negative terms as a threat to one’s own identity. Critical theorists of democracy need to explore the motivational complexes at work here and to confront the conception of difference as ‘otherness’ so that group difference can be seen by all in a positive light, as an enriching resource (Young, 1990; 1997). Again there are a number of important philosophical perspectives that can be drawn on in an analysis of the struggle to overcome such socio-psychological obstacles to political reconciliation. If we seek to outline the necessary cultural conditions for all citizens acting reasonably in recognizing the rights of others, then we need to explain the negative tendencies that lead us to deny recognition to others. Neo-Nietzschean THE PO LI TI C S OF I N C L U S I V E AG R E E M EN TS 519 political theorists have exposed the roots of some violent political impulses by showing how resentment feeds into exclusivist conceptions of identity when group differences are viewed as threats to be subjugated and overcome (Connolly, 1991; 1995). Philosophers influenced by the psychoanalytic tradition have examined both the mechanisms at work in individual psychology and certain repressive aspects of our socialization in modern societies (Brunner, 1995). Feminist theorists, inspired by the project of deconstruction, have shown us how the rigid dichotomies on which many closed identities are structured are necessarily repressive of internal differences (Young, 1990, pp. 168–73). These various critical perspectives can be used in addressing the question as to how we might empower ourselves to overcome the impulses that lead us to resist reconciliation with others. We cannot pursue either of these tasks any further here but it should be clear that if we are to address the question as to what might motivate us to engage in selftransformative discourses with our fellow citizens we need a deeper foundation for democratic politics than we find in Habermas’s proceduralism. We need to know how procedural models that show us how to do politics as citizens are to be embedded in philosophical models that show us how to live as human beings. One way to develop a richer account of the motivational complexes at work in human subjectivity is to follow Honneth in placing greater stress on our positive need for mutual recognition at various levels as conditions of our own self-realization. This opens the door, first, to the retrieval of substantive cultural values that bind citizens to one another in solidarity, and second, to a more direct philosophical challenge to the kind of identity formation that tends to destroy such bonds of solidarity in a modern pluralist context. Conclusion: Theorizing Democratic Life If we are to have legitimate law in a democratic political regime then we need to know how the demands of inclusion and reasoned agreement are to be reconciled. Habermas’s discourse theory of democracy has made a remarkable contribution to this task. We have discovered, however, that this project has been pursued in a unnecessarily restrictive fashion. In order to address the problems and prospects of discursive democracy in an adequately critical manner we need to broaden the scope of philosophical reflection so as to investigate the material and cultural bases of such a form of political engagement. While Habermas assumes that legitimate law can only emerge in a radically democratic society, he has not done enough to investigate the conditions favourable to the emergence of such a society. In order to make this good we need to offer a theoretical account not only of procedures of legitimation but also of these substantive features of democratic life. (Accepted: 5 July 1999) About the Author Shane O’Neill, School of Politics, Queen’s University, 21 University Square, Belfast BT7 1PA, Northern Ireland; email: [email protected] 520 SH A N E O ’N EILL References Baynes, K. 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