Habermas asserts that Rawls gives priority to liberal rights over democratic rights. Habermas rightly sees priority of liberal rights as constraint on democratic rights. Habermas also rightly sees that political liberalism means constitutional Liberalism. And of course Dreben is dead right when he says that for Rawls democracy is always constitutional democracy (Burton Dreben (2003) “On Rawls and Political Liberalism” in Cambridge Companion to Rawls, p. 322). Habermas argues that liberal and democratic rights are co-original or co-primordial (gleichursprünglich) and presuppose each other ( Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, p. 104), Charles Larmore (1995) “The foundations of Modern Democracy: Reflections on Jürgen Habermas” European Journal of Philosophy, vol. 3 (1): pp. 55-68, here, p. 64). However Habermas’ point is more substantial than this. Habermas understands Liberalism to be based on “the intuition that the person and her individual way of life must be protected from the intrusion of state power” (Jürgen Habermas (1998) “Reasonable versus “True”, or the Morality of Worldviews” in The Inclusion of the Other, p. 100). Habermas contrasts this with his own “Kantian republicanism” (ibid; p. 101). Habermas rejects the negative conception of liberty working in political liberalism. As he puts it:
Nobody can be free at the expense of anybody by way of socialization; the freedom of one individual cannot be tied to the freedom of everyone else in a purely negative way, through reciprocal restrictions. Rather, correct restrictions are the result of a process of self legislation conducted jointly.
[I]t is left to the democratic process continually to define the precarious boundaries between the private and the public so as to secure equal freedoms for all citizens in the form of both private and public autonomy (ibid; p. 101).
Habermas, as against most Liberal theorists thinks that human rights are the conditions of the fulfilment of democracy and are rooted in it and are not prior to it (in justificatory terms) or cannot be seen primarily as freedoms from state or any other intervention. Thus Habermas’ notion of autonomy is (primarily) public and is the basis of his romantic conception of the public sphere ( Habermas and the Public Sphere) and his early infatuations with the Greek idea of democracy( Theory and Practice ). Habermas seems to be a proponent of radical democracy as against constitutional democracy at this point.
I have two major criticisms to make here.
First Habermas’ account of democracy as far as it seems to be advocating radical democracy is ahistorical. If Habermas had taken the historicality of democracy seriously he would have realised that the relation between democracy and capitalism is primordial( Foucault and Capitalism: A reconstruction). In the modern world we cannot talk about democracy except in terms of capitalism and hence constitutional democracy is the only democracy we know in immediate historical terms. If Habermas wants to claim the flag of radical democracy he has to show us how he relates it to the hegemony of capital or if he has any plans of overcoming the hegemony of capital. Since Habermas does not do this his talk of radical democracy is simply anachronistic.*
However my second criticism is more fundamental. I would argue that Habermas’ claim of being an advocate of radical democracy is merely a sham. His view ultimately gels very well with constitutional democracy. Thus Larmore writes:
At first glance, Habermas’ vision of radical democracy seems to lack the defining feature of the liberal point of view . . . . But the appearance is misleading. In reality, Habermas’ description of his theory as involving the primacy of popular sovereignty fails to capture its actual structure. Democratic self-rule, at least as Habermas understands it, depends on an unacknowledged premise, a premise expressing an antecedent moral commitment and affirming the existence of a fundamental individual right. Other conceptions of popular sovereignty would have, no doubt, a different character. But Habermas’ conception is so constituted as to imply that political principles ought to be rationally acceptable to all those whom they are to bind. And that is the feature which brings his idea of democracy back within the liberal fold, as generally understood (Charles Larmore (1995) “The foundations of Modern Democracy: Reflections on Jürgen Habermas” European Journal of Philosophy, vol. 3 (1): pp. 55-68, here, p. 66).
Thus Habermas’ emphasis on the political will and public autonomy is blunted by the fact that autonomy is conditioned by the rational. So the emphasis really is not on the political process but on the rationality of the process and what modes are most suited for it. Similarly Habermas emphasises discourse but discourse is only the means, the real thing is rationality which some how only manifests itself in discourse but is not the same as discourse. Habermas says that his criterion of rationality is immanent in discourse but that is what Rawls says too. Rawls’ political liberalism is self-sufficient and its justificatory strategy does not need any direct reference to any non-immanent principles. . Habermas’ straightforward Kantianism is after all not that straightforward. His is also a strategy of avoidance but in a more concealed way than Rawls.
*Although his account of the colonisation of lifeworld seems to be a candidate for such a strategy it has gone in the background in his recent work any way. Not to mention the inadequacy of this account. Habermas does not realise that capital does not only colonise lifeworld it also destroys it in all its non capitalist forms.