P O L I T I C AL STU D IES: 2000 VO L 48, 503521

The Politics of Inclusive Agreements:

towards a Critical Discourse Theory of
Democracy
Shane ONeill
Queens University, Belfast
This article offers a critical assessment of Jrgen Habermass 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 Habermass 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 laws validity.
The effort to show how the demands of maximal inclusion and reasoned agreement might be reconciled is the defining characteristic of Jrgen Habermass
discourse theory of law and democracy (Habermas, 1996). As a critical theory of
democracy, however, Habermass 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.
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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. 6975; 1996,
pp. 4436). 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

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politics, this critical theory of democracy addresses the problem of motivation more
effectively than can be done under the restrictions of Habermass 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 Habermass 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, Habermass discourse theory offers a normative ideal that gives us a critical
perspective on actual processes of law-making. The legitimation of laws is always

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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 laws 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. 3937).
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. 17980).
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 citizens 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 Habermass 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 Habermass theory can show us how incommensurability might be overcome in an inclusive discourse, it does not tell us why

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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 Habermass 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 Habermass 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, 99104, 11831,
40927, 4547).
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

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autonomy by ensuring that oppression and violence are avoided. Private and political
autonomy are co-original (Habermas, 1996, pp. 11822, 4547; 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 laws 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, 11418). 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,
4489). 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, 3712, 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.
Habermass 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

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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 Frasers 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. 3078).
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 Habermass 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 Habermass 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. 1223). 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 states political constitution
and the same civil rights are interpreted in distinctive ways given the historically
unique nature of each state (Habermas, 1998a, pp. 21520; ONeill, 1997,
pp. 1739). But the content of these basic rights of material condition that are
appropriate to a particular context must, from Habermass procedural perspective,
be determined not by philosophical reflection but by citizens in actual discourses.

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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. 41827). 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 womens 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 libertiesToday 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 Habermass 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

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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. 12332). 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.

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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. 2989; 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. 3024; Bohman 1997, p. 338). A focus on capabilities allows us
to assess the relative effectiveness of various political actors. If every citizens
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

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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 Habermass 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, Habermass 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 Habermass 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. 10818,
1517, 2337, 4503). Habermass 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

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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. 117; 1996, pp. 15968). 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 Habermass 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 Britains 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.

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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 laws
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. 3937). 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 laws 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. 3923). But again, it would seem to be the case that
something fundamental is not adequately dealt with in Habermass 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?

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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 (ONeill, 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 (ONeill, 1997, pp. 18990, 1937). 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. 1278).
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. 6975, 88105; 1996, pp. 64, 4436). 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

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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 Habermass 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 ones
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 ones 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, Honneths 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

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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 ones 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

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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. 16873). 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 Habermass 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.
Habermass 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 ONeill, School of Politics, Queens University, 21 University Square, Belfast BT7 1PA,
Northern Ireland; email: s.oneill@qub.ac.uk

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