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4.4 The System of Rights

Habermas argues that, alongside the principle of democracy, what he calls a “logical genesis of rights” arises from the “interpenetration” of the legal form and the discourse principle (D) (1992b [1996b: 121]). The argument is hard to follow. It begins from the premises of (D) and the form of modern law, and assumes that the idea of legitimate law presupposes that of a legal subject qua bearer of rights, no matter what the content of those specific rights is. The conclusion to the argument is a system of rights, of five different kinds.

1. Basic rights to the greatest possible measure of equal individual liberties.
2. Basic rights to membership in a voluntary association of consociates under law.
3. Basic rights to the actionability of rights arising from the legal protection of rights-holders.
4. Basic rights to the equal opportunity to participate in the processes of political will formation and the production of legitimate law.
5. Basic rights to living conditions that are socially, technologically, and ecologically safeguarded, insofar as this is necessary for citizens to exercise their civil rights 1–4 (1996b: 123–4).

The first three rights are supposed to arise theoretically from the application of the discourse principle to the form of law. These are rights that citizens must grant to one another if they are “legitimately to regulate their living together by means of positive law” (1992b [1996b: 126; 82; 118]). The next two—political and social rights—are practical and material enabling conditions that ensure the effectiveness of the first three rights. The first three rights, Habermas claims, are not specific rights, but what he calls “unsaturated placeholders” for specific rights that have to “be interpreted and given concrete shape” by actual citizens in response to determinate historical conditions (1992b [1996b: 125–6]). This is crucial to Habermas’s theory, because it purports to reconstruct the ability of citizens, from their perspective, to reciprocally grant one another the rights necessary for their common existence as consociates under law. That’s why he claims that he, unlike Rawls, doesn’t design “the basic norms of a well-ordered society on the drafting table”, and then apply them to society (1990d [1994: 101]). In that sense, just as discourse ethics leaves the validation of moral norms to participants in discourse, the discourse theory of law and democracy has to leave the political process of establishing a system of rights up to citizens themselves as much as possible. This is the sense in which Habermas claims the discourse theory of democratic legitimacy is “strictly procedural” and more modest than “normative political theory” à la Rawls (Habermas 1995: 117 & 132; Rawls 1995: 175–177). For all that, unlike in discourse ethics where neither (U) nor (D) have the status of valid moral norms, Habermas nonetheless derives a system of rights that for all the world resembles T. H. Marshall’s account of civic, political, and social rights, in his classic work of political sociology (Marshall 1950).

4.5 Objections to Between Facts and Norms

Joshua Cohen objects that the principle of discourse does not amount to a requirement of equal liberty, and that nothing so rich as Habermas’s scheme of individual liberties follows solely from the application of the discourse principle to the legal form (Cohen 1999: 393, 398). He objects even while acknowledging that the various rights are not yet saturated: they are not yet specific, historically and socially determinate rights. But contra Cohen, on Habermas’s account, legal form, or modern “form of law” is a richer idea than the mere rule of law, and refers to a complex of features that law has in a modern constitutional democratic state. As Baynes and Zurn point out, Habermas’s theory reconstructs the way that, via the discourse principle, the form of law in modern—that is, post-traditional and post-conventional—societies functions to compensate for the loss of shared traditions, and relieves the burden on citizens to reach reasoned agreement with one another and thereby coordinate their actions (Baynes 2016: 166: Zurn 2011).