Answer: laws.
Fact-like - giveness by which they stablized expectations - help sustain an order of freedom
Norm-like - claim to approvability by everyone - if not in terms of contents, at least in grounds or the processes from which they sprang
- Capable of conducting into everyday life experience of the great/open society a trace of the integrative force of civic friendship based on agreement in reason
L of law must reside in virtue by which law exerts upon all within range of its coercive potential a rational claim to acceptance as right
- V conferring - laws are legitimate if they might claim the agreement of all citizens in a discursive process equally open to
- only actual discourse can sustain presumption of fair results -
Discourse itself must be legally constituted
- LLeg.O - reflexive in regard to the process of institutionalization
- Recursive - if L laws must come from legally constituted dem.pro. - must themselves be product of conceptually prior procedural event - itself framed by legal laws
"The idea of the rule of law sets in motion a spiraling self-application of law"
Infinite regress
- arises from very idea of country's population governing itself by and under law
Constitutionalism - the ideal of there being always necessarily in play at least two ranks of law
- "ordinary" law - everyday political acts of legislation, admin, adjuc.
- "higher" law - above ordinary - constitutional essentials - prescriptions for the inst. forms of ordinary doings of gov.
- secondary - recognition rule for law making
DoL - claim that liberals must justify political government - easier to do at secondary level of recognition rules rather than based on primary levels of intervention of government into SocL
- justification must mean consent - at least in principle - by everyone affected
- DoL allows for direct justification on the higher scheme of const. essentials - ordinary acts justified derivately
Caters to striving for justifcation of government in face of "inauspicious social conditions"
- social immensity, complexity, anonymity, irreducible plurality, conflict of considered opinions
- allows the possibility of country-wide agreement on political merit
Problem
- "the people in the raw [...] are and must always remain strangers to the law"
- only under already existing const. legal provisions - can a "people" exist or conceivably legislate anything.
- dem.gov. must have ultimately constitutive, demo-generative law
Positivism v Rationalism
- positivism - Constitution does provide the rule of legal recognition in that populace do treat it as such
- rationalism - Constitution is the ultimate law in that it aptly applies to American circumstance the true, abstract principles of political justice and right
JH rejects both of these
- both depart from only justification of government to modern legal-democratic sensibilities - the grounding of operative law in critically self-conscious, discursive processes directed to universal reasonable agreement
Hasty rejection
- Himself teaches that a set of abstract principles of right can be dervied as the very preconditions of dem.dis.
- Such derivation is the ultimate normative ground of const. law - necessary condition of legal validity down the line
- Yet - legimation can't be assumed short of actual submissability of pending derivations to the critical corrective rigors of actual dem. discourses
At all times, individuals must have access to forums that
1. address the correct question for constitutional law making - of proceduralist derviation of regulative norms for politics
2. are conducted under regulation thus derived
- Citizens themselves must decide how rights that give DP legal shape must be fashioned
- Make originary use of civic autonomy - constitutes itself in a performatively self-referential manner
Infinite regress: Where can this originary constitutive moment be found? Granting that it is necessary, how may it be possible?
- JH's critique of Rawls - grounds law in the conditions stipulated by a philosopher - beyond the grounds of democratic agreement and revision
JH proposes "to deal with the regress not by stopping it but by finding for it a kind of institutional space that can contain it unstopped"
- not in parliamentary bodies - must have already been constituted by still ungrounded constitution
- "locales of democractic discourse from which there issued not packets of positive laws but rather streams of public opinion"
- focused enough to be likely to influence the workings of poistive-law making
- prelegislaitve forum - "the regress of democratic deliberation could recirculate endlessly"
- would operate on most recent legally enacted iterations of proceduralistically constructed norms of public discourse - themselves submitted to critical re-examination, then beam results towards representative assemblies empowered to legislate
- "Legitimate law would thus 'reproduce itself' by 'constitutionally regulated circulation of power"
- the legal establishment of civ.soc. as proto-legislative const. organ - "a kind of standing constitutional preconvention of the people"
Two-stage conception of law making
- reciprocatingly concurrent formal and informatl democratic-discursive arenas
- informal opinion formation - open and fluid structures of civil society to which everyone has access from the base of autonomy - both private and civic - incapable of enacting laws - capable of inspiring them - exerts subjectless influence on informal ones - influence carried by public opinion vectors
- formal democratic will formation - determinately structued representative assemblies - debate and enactment possible, over remaining disagreement
There can be no subject for the sovereignty of people - gives the false appearance of sanctity
- subjectless but intersubjective reduction of popular sovereignty preserves in practice a trace of the counterfactual idea
How much of a difference is there between JH and Rawls?
- regulative ideas for the critical appraisal / reform of contemporary manifestations of const. dem.
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