Supranational constitutional politics and the method of rational reconstruction

Abstract

In The Crisis of the European Union Jürgen Habermas claims that the constituent power in the EU is shared between the community of EU citizens and the political communities of the member states. By his own account, Habermas arrives at this concept of a dual constituent subject through a rational reconstruction of the genesis of the European constitution. This explanation, however, is not particularly illuminating since it is controversial what the term ‘rational reconstruction’ stands for. This article critically discusses the current state of research on rational reconstruction, develops a new reading of Habermas’ method and invokes this account for an explanation and evaluation of the notion of a European pouvoir constituant mixte.

Keywords

Constituent power the European Union legitimacy methods rational reconstruction

Introduction

In his essay The Crisis of the European Union (hereafter cited as TCEU) Jürgen Habermas confronts us with the following idea: from a legitimacy-theoretical perspective, the European Union is based on a dual constituent subject. In the supranational polity, the community of European citizens shares the position of the constituent subject with the peoples of the member states. According to Habermas, this theoretical construct results from ‘the perspective of a rationally reconstructed constitution-building process’ (Habermas, 2012: 27–8; original emphases). This element of Habermas’ essay is relevant for two current fields of research at the same time. On the one hand, it represents a substantial contribution to the normative discussion as to who enjoys the right to constitute legal orders in supranational contexts (Besson, 2009; Patberg, 2013). On the other hand, it issues a new challenge to those who engage in a methodological debate on the meaning of Habermas’ concept of rational reconstruction and on the potential of reconstruction as a method of political theory (Pedersen, 2008; Gaus, 2013).

The casualness of Habermas’ remark that his theory of legitimacy would result from the perspective of a rationally reconstructed constitution-building process suggests that it is relatively clear what a rational reconstruction is. However, a look at Habermas’ previous writings and at the secondary literature makes immediately clear that this is by no means the case. Accordingly, it is far from intersubjectively comprehensible how Habermas arrives at the normative claim that we should regard the pouvoir constituant mixte as the standard of legitimacy for future processes of constitutional politics in the EU. Against this background, this article discusses what it means methodologically that the idea of a dual constituent subject is presented as a result of a rational reconstruction – with the ultimate goal of testing the plausibility of Habermas’ localization of the ‘authority to amend the constitution’ (Habermas, 2012: 42).

In the following, I first introduce, by way of an initial approximation, three contexts in which Habermas uses the term ‘reconstruction’. I argue that the reconstruction of historical materialism is not relevant for the analysis of TCEU. Subsequently, I critically discuss the interpretations of Habermas’ method of rational reconstruction prevailing in the literature. The debate primarily oscillates between empirical/social-scientific understandings, based on the universal pragmatics and the Theory of Communicative Action (hereafter cited as TCA), and normative-theoretical readings resting on the development of the system of rights in Between Facts and Norms (hereafter cited as BFN). The main weaknesses of the common interpretations are, first, that they neglect either the explanatory or the justificatory aspect of rational reconstruction and, second, that they cannot demonstrate to what extent there is continuity in the way that the method is applied in Habermas’ major works.

In the next step, I analyse the most advanced attempt of such an integrative interpretation. According to this account, rational reconstruction is primarily a social-scientific model of explanation that may, however, also fulfill purposes of social critique. Starting from a critical examination of this position I present a new interpretation according to which the same philosophical method of identifying presuppositions is invoked in the TCA and in BFN but applied to different social practices, which in turn leads to scientific claims of different epistemic status. In the last step, I reconsider Habermas’ idea that the EU features a dual constituent subject against the background of this interpretation. The conclusion summarizes and evaluates the findings.

Three application contexts of reconstructive methodology: An approximation

The concept of reconstruction is ambiguous. Habermas himself points out that various disciplines invoke variants of reconstructive methodology for different research goals (Habermas, 1976a: 29). In a first approximation, we can distinguish three contexts in his own work where he draws on the concept of reconstruction.¹

The first context is the book Zur Rekonstruktion des Historischen Materialismus.² There, Habermas describes reconstruction as follows: ‘[Y]ou take a theory to pieces and put it together in a new form in order to enhance its potential to achieve its initial goal’ (Habermas, 1976b: 9 [trans. M.P.]). According to this relatively loose understanding, reconstruction means to rearrange the elements of a political theory. This method may indeed productively be invoked for analysing the legitimacy of supranational constitutional politics. According to Anne Peters, for example, a ‘constitutionalist reconstruction of international law’ (A. Peters, 2006: 1) is a legal-theoretical reinterpretation of current international law as a partially constitutionalized order. If nothing else, the merit of such a constitutional reconstruction consists in its potential to serve as a critical standard for the evaluation of prevailing international law: ‘[T]he constitutionalist reconstruction of international law may help…the revelation of existing legitimacy deficiencies in this body of law, which can obviously no longer rely on state sovereignty and consent alone’ (ibid.: 10).

Even though this form of reconstruction may thus principally be invoked for the critical evaluation of supranational legal orders, it does not significantly shed light on Habermas’ argument in TCEU. The legitimating notion of a dual constituent subject is neither, as in Habermas’ reconstruction of historical materialism, the result of a reformulation of a political theory, nor, in the vein of Peters’ reconstruction of international law, a reinterpretation of prevailing procedural rules of supranational constitutional politics.³ Furthermore, Habermas does not speak of rational reconstruction in the context of the reconstruction of historical materialism, as is the case in TCEU and also in the context of his universal pragmatics and in BFN. Since there is no indication, then, of a connection between this account of reconstruction and the argument in TCEU, I leave it aside in the following.

A second context in which Habermas refers to the concept of reconstruction is the development of his universal pragmatics in the TCA and in a number of related publications (Habermas, 1976a, 1977, 1979, 1984a, 1984b, 1990). In these writings, Habermas describes reconstruction as ‘a presuppositional analysis’ that aims at demonstrating ‘that anyone who earnestly takes part in argumentation unavoidably accepts certain communicative presuppositions with a counterfactual content’ (Habermas, 1996a: 1519; original emphasis). He also describes this as a ‘reconstruction of species competencies’ because he assumes that the preconditions of successful understanding are available to every individual in the form of ‘pretheoretical knowledge’ and hence represent ‘universal capabilities’ (Habermas, 1979: 14; emphasis removed). Although at first sight there is no salient connection between these considerations and the argument of TCEU, the simple fact that Habermas in both contexts explicitly speaks of rational reconstruction makes it necessary to take his writings on the universal pragmatics into account.

Third, Habermas invokes the concept of reconstruction when outlining the system of rights in BFN. In this context, he aims to ‘rationally reconstruct the self-understanding of…modern legal orders’ (Habermas, 1996b: 82). The system of rights that results from this operation represents the core of constitutional democracy. It articulates ‘entitlements that have been identified as preconditions of a social practice, namely, to legitimately regulate common concerns with the means of positive law’ (Niesen and Eberl, 2009: 6 [trans. M.P.]; cf. Habermas, 1996b, 2001, 2009). In this way, the objects of reconstruction in BFN and TCEU are similar. In both cases, Habermas deals with the legitimacy of legally constituted political orders. Given this similarity, it suggests itself that the perspective of a rationally reconstructed constitution-building process, taken by Habermas in TCEU, works analogously to the development of the system of rights. However, this analogy is not particularly illuminating as Habermas’ methodology in BFN is anything but self-explanatory and its meaning controversial.

Rational reconstruction: Descriptive explanation vs normative evaluation

The fact that Habermas explicitly speaks of ‘rational reconstruction’ in the context of his universal pragmatics as well as with regard to the system of rights has led to contradictory descriptions of the method in the literature. Not least, the disagreement results from the fact that the authors usually concentrate on either the TCA or BFN, instead of explaining the method by reference to both works. Leaving the details of the different accounts aside, we can distinguish two competing interpretations of rational reconstruction (cf. Gaus, 2013). While those focusing on the universal pragmatics usually assume that it is an empirical/social-scientific method of explanation (Garz, 2000; Baynes, 1990; Alford, 1985), analyses of the system of rights are predominantly based on the reading of a normative-theoretical procedure of justification or evaluation (Maus, 1996; McCarthy, 1994; Günther, 1994).

However, the divide in the controversy between the advocates of empirical and normative interpretations does not exclusively reflect a respective focus on one of Habermas’ major works. For a start, we already encounter diverging understandings with regard to the TCA. This manifests itself exemplarily in the works of Jørgen Pedersen and Mattias Iser, who have presented the most advanced analyses of the method of rational reconstruction in the context of the universal pragmatics. Basically, both agree that the object of reconstruction is the formal preconditions of communicative action – in the form of an unconsciously held but nevertheless universal knowledge of rules (Pedersen, 2008: 463; Iser, 2009: 365). But they disagree as to the reconstruction’s primary aim and the status of the theses developed.

According to Pedersen, the rational reconstruction of the deep structures of language serves to generate a description of species competences in the form of falsifiable hypotheses: ‘The hypotheses produced by reconstructive analyses are fallible. They are open to confirmation and falsification. They are based on empirical analyses and do not represent a transcendental philosophical uncovering of the conditions of possibility’ (Pedersen, 2008: 463). By implication, rational reconstruction is a genuinely empirical, social-scientific enterprise: ‘As these kinds of investigations are dependent on a posteriori knowledge, they must be described as empirical science’ (ibid.: 467). Furthermore, we need to acknowledge, he claims, that rational reconstruction is geared towards the empirical testing of the hypotheses developed: ‘Given the hypothetical character of rational reconstruction, the question of how to test these hypotheses becomes of crucial importance’ (ibid.: 466).

On Iser’s interpretation, by contrast, the emphasis of rational reconstruction is on the substantiation of a standard of social critique. According to this, the reconstruction of the preconditions of successful understanding provides us with a normative ideal against which the ‘deficits of real processes of understanding in concrete situations’ (Iser, 2009: 365 [trans. M.P.]) may be revealed. On this view, the goal of rational reconstruction is not to issue the social sciences with falsifiable hypotheses but to establish the foundations of a critical social theory that has the potential to uncover ‘the core injustices and pathologies’ (Iser, 2008: 17 [trans. M.P.]) of modern societies (cf. ibid.: 122–61).⁴ On Iser’s account, the underlying assumptions concerning allegedly uncircumventable presuppositions are rather to be understood as ‘placeholders for future research’ (ibid.: 124) than as falsifiable hypotheses.

Even though the accentuations of both interpretations are different, they are less antithetical than it may appear at first. We are not dealing with two in every way contradictory readings but each author respectively emphasizes a different aspect of Habermas’ theory. The TCA has an empirical-normative dual meaning that is also reflected in the method of rational reconstruction. The TCA is, in Habermas’ words, ‘an empirical-scientific [erfahrungswissenschaftliche] theory’ (Habermas, 1977: 593 [trans. M.P.]) that enables social critique on the basis of a ‘normatively substantial concept of systematically distorted communication’ (ibid.: 592 [trans. M.P.]). While Pedersen, somewhat one-sidedly, focuses on the allegedly hypothetical status of the reconstructively formulated theses, Iser also takes into account the ‘follow-up task’ (Iser, 2009: 365 [trans. M.P.]) of normatively criticizing real processes of understanding.

While the elaborate accounts of rational reconstruction in the context of the universal pragmatics rather differ in nuances, the meaning of the method in BFN is highly controversial. Pedersen extends his interpretation of rational reconstruction as a social-scientific research method to the system of rights.⁵ According to him, the goal of the discourse theory of law and democracy is ‘to identify the preconditions for regulating modern pluralistic societies through positive law’ (Pedersen, 2009: 389). Habermas allegedly strives for the formulation of hypotheses with regard to the empirical preconditions of legitimate legislation. This interpretation leads Pedersen to a negative verdict as to the plausibility of the reconstruction of law:

As we have seen, rational reconstruction is based on empirical data. This suggests that there is an empirical rather than a philosophical method behind the hypotheses presented by Habermas. There is, however, a great distance between program and practice here. Habermas has not produced his hypotheses through an extensive use of empirical data. They are instead constructed through more classical philosophical methods. (Pedersen, 2009: 395)

Starting out from the assumption that Habermas’ development of his universal pragmatics and his reconstructive approach to law follow the same logic, Pedersen concludes with regard to the system of rights: Habermas ‘does not follow up his own program’ (ibid.: 404). However, it seems questionable whether Pedersen’s falsificationist understanding of rational reconstruction properly reflects the core of Habermas’ research program. After all, Habermas invokes the reconstructive methodology precisely in order to distance himself from ‘the model of a strict nomological science’ (Habermas, 1990: 29; cf. also Habermas, 1976a: 36). Moreover, it is not very convincing to conclude that Habermas fails in the application of his own method because one’s interpretation of rational reconstruction seems to be plausible only for parts of his work.

An interpretation of BFN that is focused on the normative dimension of rational reconstruction is presented by Andreas Kalyvas, who suggests that we should interpret the reconstruction of the system of rights on the basis of Hannah Arendt’s notion of immanent principles. Kalyvas discusses the problem that the revolutionary exercise of constituent power is by definition an extra-legal practice and hence under the suspicion of being an arbitrary and illegitimate form of political power. He draws on Arendt’s idea of assessing the legitimacy of constituent politics against principles that are inherent in the constituent act, as it were, and that may be identified reconstructively: ‘They [the immanent principles] must be extracted and reconstructed from within the instituting action itself’ (Kalyvas, 2008: 242; emphasis added). However, reconstruction in this context is not to be understood in the sense that the standards of legitimacy are identified by the theorist. The immanent principles ‘are not the product of abstract rational thinking’ (ibid.: 243) but become accessible to the participants of a constituent act ‘at the very moment of its performance’ (ibid.: 242). According to this, the practice of establishing a constitutional democracy is to be interpreted as an act of bringing the immanent principles of democratic foundation to awareness and of transforming them into constitutional law.⁶

Kalyvas explains Habermas’ reconstruction of the system of rights in light of this concept of immanent principles. In doing so, he appeals to a quote from the postscript to BFN, where Habermas writes:

The performative meaning of this constitution-making practice already contains in nuce the entire content of constitutional democracy. The system of rights and the principles of the constitutional state can be developed from what it means to carry out the practice that one has gotten into with the first act in the self-constitution of such a legal community. (Habermas, 1996b: 453; original emphasis; cf. Kalyvas, 2008: 250)

Against this background, it appears as if Habermas understands the act of constitution-making, similarly to Arendt, ‘more like a process of discovery, excavation, and reconstruction rather than original creation’ (Kalyvas, 2008: 250). However, Kalyvas misses a crucial disanalogy between Arendt and Habermas. While Arendt is concerned with non-juridical principles that, according to Kalyvas, should guide the extra-legal practice of constitution-making, Habermas identifies categories of juridical rights that represent the core of the written constitution and are, by implication, object and aim of the constituent act. In addition, Kalyvas’ argument rather seems to be an innovative advancement of Habermas’ theory than an apt interpretation. As he himself concedes, his idea that the principles of constitution-making are discovered by the participants of the constituent act and transformed into positive law goes beyond the Habermasian theoretical framework (ibid.: 251). In fact, the reconstruction of the system of rights does not describe a practical process of discovery but is to be understood as a ‘conceptual explication’ (Habermas, 2001: 778) that should not be confused with empirical processes of constitutional politics:

We must…carefully distinguish two stages. The first stage involves the conceptual explication of the language of individual rights in which the shared practice of a self-determining association of free and equal citizens can express itself – rights, thus, in which alone the principle of popular sovereignty can be embodied. The second stage involves the realization of this principle through the exercise, the actual carrying out, of this practice. (Habermas. 2001: 778; emphases added)

Therefore, Olson’s explanation of the system of rights at first sight seems to get a better grasp of Habermas’ intentions. Olson thinks that the rational reconstruction in BFN serves to track the ‘conceptual preconditions of the democratic genesis of law’ (Olson, 2003: 285; original emphases).⁷ According to this interpretation, rational reconstruction operates exclusively on the conceptual level and represents an attempt to identify, for a given social practice, ‘what presuppositions would be inescapable for the proper conduct of the practice’ (ibid.; original emphasis). In this way, Olson claims, the idealizing conceptual analysis of a practice leads to the development of a normative ideal that may then, in a reflexive step, be applied as a critical standard to the very practice starting from which it had initially been developed.

Undoubtedly, this interpretation captures some of Habermas’ core ideas. Among other things, it illuminates Habermas’ claim that the reconstructed internal relation between the rule of law and democracy ‘results from the concept of modern law itself’ (Habermas, 1996c: 254; emphases added). However, Olson’s interpretation does not take into account the corresponding thesis that this internal conceptual relation ‘is deeply rooted in the presuppositions of our everyday practice of law’ (ibid.; emphases added). In fact, it is precisely these ‘presuppositions’, which may be found in the expectations of the participants of social practices, that become an object of reconstruction and not only conceptual requirements. While Olson holds that the ‘inescapability’ of the preconditions of democratic opinion and will formation means that they cannot reasonably be separated, for reasons of conceptual logic, from the idea of a self-governing association of free and equal citizens, Habermas is up to something else. He starts out from the question of which counterfactual idealizations the citizens of constitutional democracies need to make in order that they may regard their shared political practice as rational.

Take the example of the so-called voter’s paradox…In general, citizens are not discouraged from participating in elections by what political scientists report, from an observer’s point of view, about the neutralizing effects of voting procedures and of electoral geography. For citizens, the democratic practice of voting has the meaning of a collective enterprise which functions only on the assumption that every vote ‘counts’ and carries equal weight. In their role as participants in this practice, the citizens are not bothered when political scientists assure them of the contrary from the observer perspective. (Habermas, 2009: 148)

Accordingly, the rational reconstruction of the system of rights is not just a reconstruction of conceptual requirements but it aims at the counterfactual assumptions made by the participants of a particular social practice. In addition, Olson’s account is ultimately not convincing because the interpretation of rational reconstruction as conceptual analysis does not fit in with the universal pragmatics. It appears highly implausible to interpret the latter merely as a reconstruction of inescapable conceptual preconditions of communicative action.⁸

What this all amounts to is that even the elaborate interpretations of rational reconstruction feature weaknesses. For one thing, none of the accounts discussed is to the same degree plausible for the TCA and BFN, and, for another thing, most of the approaches feature an imbalance in the direction of a normative or empirical reading, respectively.⁹ Against this background, it seems attractive to adopt Bernhard Peters’ thesis according to which the system of rights is based on a different understanding of rational reconstruction than the development of the universal pragmatics. Peters distinguishes between theoretical reconstruction and reconstructive analysis (B. Peters, 1994: 119). While the former allegedly represents a normative-theoretical procedure of argumentation, the latter is said to be an empirically oriented, internal analysis of symbolically structured objects. At first glance, this is a tempting reading as it appears to establish clarity. However, for two reasons, it is ultimately unconvincing. First, it seems highly unlikely that Habermas chooses the same term to describe two different methodological approaches. Second, some of his more recent remarks suggest that he in fact understands the reconstruction of the system of rights by analogy to the reconstruction of the presuppositions of communicative action.

In a passage on the rationality potential of political deliberation, Habermas describes ‘practices such as communicative action, democratic voting, or bringing a case before the court’ (Habermas, 2009: 148) altogether as social practices that operate against the background of idealizing presuppositions and that may therefore be analysed with the method of rational reconstruction (ibid.: 149). This explicitly includes ‘the normative constraints to which democratic opinion and will formation is subject’ (ibid.; emphasis added). Thus, it will be assumed in the following that a convincing interpretation of the method of rational reconstruction needs to be integrative in two regards. It should (1) demonstrate continuity in the way that the method is applied in the TCA and in BFN and (2) take into account the normative-empirical dual meaning of the method, i.e. the combination of elements of explanation on the one hand and of justification and evaluation on the other.

An integrative interpretation of rational reconstruction

The hitherto most elaborate integrative approach has recently been introduced by Daniel Gaus, who understands rational reconstruction as a method of political theory between social critique and empirical political science. Gaus opposes, first, the claim that the ‘object domain of rational reconstruction in Habermas is limited to the universal competences of speaking and acting subjects’ (Gaus, 2013: 561) and, second, the idea that the primary or exclusive end of the method is to develop a normative standard for criticizing social realities. Rather, we need to acknowledge, Gaus claims, that constitutional democracy becomes a further object of rational reconstruction in BFN and that the concept of rational reconstruction ‘in Habermas’s thought is not limited to the context of evaluative social critique’ (ibid.: 553) but aims, on top of that, at a ‘general model of social-scientific explanation’ (ibid.: 561).

Although Gaus strives for a social-scientific reading of rational reconstruction, this is not to be understood as a denial of the normative dimension of Habermas’ democratic theory.¹⁰ However, his primary goal is to demonstrate the potential of Habermas’ method for the empirical analysis of political practice and hence for the cooperation between political theory and other subdisciplines of political science. In doing so, he avoids the narrow, falsificationist understanding of empirical social research that characterizes Pedersen’s approach and against the background of which BFN can only appear as a misguided project. Gaus’ interpretation of rational reconstruction starts out from Habermas’ remarks on social-scientific understanding in the TCA and in the writings on the universal pragmatics and, engaging with the system of rights, develops the thesis that both the TCA and BFN represent attempts to provide a reconstructive explanation of social phenomena (Gaus, 2009: 122–40, 202–34).

According to this reading, the universal pragmatics is ‘about the investigation of rationality’s general conditions of possibility’ in verbal communication (Gaus, 2013: 561), while Habermas’ democratic theory is an explanatory reenactment ‘of specific historical situations of interaction’, namely, ‘the constitutional conventions of Paris and Philadelphia, by which the world-historically new political praxis of modern democracy came to be established’ (ibid.: 563). The goal of the rational reconstruction in BFN allegedly consists in demonstrating that and why ‘the foundation of the practices of the democratic constitutional state was not accidental;…why it had to appear rational from the historically-situated perspective of the participants, and why it thus had to appear to them as a robust means of overcoming of the problem of social order under the requirements of justice’ (ibid.: 559; emphases added). In this sense, Gaus argues, rational reconstruction can be regarded as an alternative to other explanatory models of political science such as the actor-centered institutionalism.

As the research objective of BFN allegedly consists in explaining the results of historical constitution-making processes as acts of rational choice, Gaus maintains, with regard to Habermas' thought experiment of an initial founding moment, ‘that the premises that enter the modeled action situation have to accurately reflect the conditions that actually prevailed in the reality of the practice that shall be reconstructed’ (Gaus, 2009: 211 [trans. M.P.]). Thus, the conditions described by Habermas – the fact that there is no alternative to the medium of positive law for creating social order in modern societies, the normative ideas of self-determination and self-realization and the awareness of individuals that decisions taken may turn out to be false in light of future developments – are supposedly to be interpreted as the empirical conditions that the participants of the said historical constitution-making processes were confronted with (Gaus, 2013: 564). ‘In such a situation’, Habermas allegedly concludes, ‘we can expect that the participants resolve upon an institutional order for the regulation of their social life that conforms to the principles of constitutional democracy’ (Gaus, 2009: 216 [trans. M.P.]).

The strength of this interpretation lies, first, in the fact that it explains rational reconstruction with regard to both of Habermas’ major works uniformly as a method of reconstructive explanation. While the aim in one case consists in identifying the general conditions of successful understanding, the goal in the other case is to reconstruct a historical decision situation. Second, Gaus achieves a balance with his approach between explanation and justification as he acknowledges the relevance of rational reconstruction ‘both for normative-critical contemplation as well as for the empirical analysis of political practice’ (Gaus, 2013: 566). However, Gaus’ description of the explanatory dimension of rational reconstruction is hardly compatible with the argument presented in TCEU. The thesis of a dual constituent subject is not an explanation for the actions of certain agents in a concrete historical situation but is introduced by Habermas as the result of a counterfactual thought experiment within which the EU’s history of emergence is reconstructed as though the supranational polity in its current form would have been introduced in the context of a democratic constitutional convention (Habermas, 2012: 31).

Against this background, it seems helpful to recall a central passage from BFN that also suggests that the quasi-contractualist argument that leads to the system of rights does not necessarily need to be read as an explanation of historical decision-making processes. Habermas himself describes the reciprocal conferral of rights as a ‘metaphorical event’ (Habermas, 1996b: 132) that is carried out in order to develop a context-transcending, normative coordinate system that specifies the conditions of legitimacy for any modern community of citizens:

The reconstruction of law functions as an explication of meaning. With the system of rights, we have assured ourselves of the presuppositions that members of a modern legal community must take as their starting point if they are to consider their legal order legitimate but cannot base this legitimacy on religious or metaphysical arguments…The basic rights reconstructed in our thought experiment are constitutive for every association of free and equal consociates under law. (Habermas, 1996b: 132; emphases added)

By implication, the system of rights ultimately represents a normative standard for the evaluation of the legitimacy of actually existing democracies; a normative standard, however, that is rooted in social reality because it has been developed on the basis of the counterfactual idealizations that the participants of democratic practices ‘regard as “valid” or assume to be “followed” and “fulfilled”’ (Habermas, 2009: 148–9). The citizens of democratic communities assume, for example, that each has the same political influence in political processes of opinion and will formation. Exactly such presuppositions become the object of rational reconstruction:

The reconstruction of tacitly assumed counterfactual presuppositions yields an independent standard of evaluation, which is rooted in those observed practices themselves. Thus, for example, the normative constraints to which democratic opinion and will formation is subject…can be read off from the counterfactual content of what the participants themselves presuppose when they view the outcomes of a democratic procedure as legitimate even if they do not agree with them. (Habermas, 2009: 149; emphases added)

Nevertheless, it is true that the rational reconstruction of constitutional democracy also features an explanatory dimension – although in a more abstract sense than assumed by Gaus. From an empirical point of view, the democratic practice can only remain intact, after all, as long as the participants may regard it as rational on the basis of specific presuppositions. Thus, the counterfactual idealizations of citizens explain the functioning and maintenance of the contemporary practice of constitutional democracy. As opposed to this, Gaus’ idea that Habermas would be examining two historical constitution-making processes in order to answer the question of ‘how it may be explained that the participants in this action context acted in this way’ (Gaus, 2009: 210) seems to reflect a too concretistic understanding of Habermas’ thought experiment. In fact, Habermas ‘simulates an original position’ (Habermas, 2001: 776) precisely not in order to explain the decisions of a historical group of persons but he brings together, ‘in mente’ (ibid.: 777), a fictional group of constitution-makers so as to simulate a rational discourse about the normative preconditions for legitimate law-making on common concerns and hence to reconstruct, in a generalizable manner, on which presuppositions the practice of constitutional democracy, as a matter of fact, needs to rest. In the following, I will suggest an integrative interpretation of rational reconstruction that takes this disagreement with Gaus’ reading into account but at the same time demonstrates to what extent the same method is applied in BFN and in the TCA.

Rational reconstruction is a type of ‘formal analysis’ (Habermas, 1976a: 26) whose starting point is always a social practice to be found in empirical reality.¹¹ In this context, the concept of social practice is to be understood in a broad sense. Not only does it entail immediate actions but also certain norms or institutions that may be regarded as preconditions for a particular context of social action. For example, the practice of constitutional democracy not only encompasses voting in the booth or parliamentary debates but also, among other things, a constitution and parliamentary rules of procedure. A rational reconstruction is the philosophical endeavor of identifying the counterfactual, idealizing assumptions (presuppositions) that the participants of a particular social practice need to make in order to be able to regard their common practice as meaningful. These presuppositions are manifest in concrete actions as well as in norm texts and institutions. By means of rational reconstruction, the ‘particles and fragments of an “existing reason” already incorporated in…[the] practices, however distorted these may be’, shall be identified (Habermas, 1996b: 287; cf. Cooke, 2012: 814).

The criterion for the meaningfulness of a practice is communicative rationality. According to the discourse-theoretical understanding, those things count as rational that ‘can be held to be true on the basis of good reasons in the relevant context of justification’ (Habermas, 1996d: 312). In this sense, a rational reconstruction aims at revealing the rational core of social practices. Furthermore, the reconstructive method rests on the assumption that an intuitive ‘knowledge’ on behalf of the participants as to the rational core of their shared practice is constitutive for the respective social action context. The implicit thesis is that certain practices would have to break down without the existence of the idealizing assumptions. The reconstruction targets those presuppositions, then, that are inevitable for the preservation of a practice. From this stems the explanatory function that rational reconstructions may fulfill. The idea of a constitutive function of counterfactual assumptions can be illustrated by means of the example quoted above, of citizens that cast their vote, motivated by their ideal picture of democracy, although political scientists explain to them how the electoral system renders their vote irrelevant. The inevitable presuppositions may be reconstructed by way of simulating a rational discourse as to the meaning of the practice in question.

It is important to note that the social practices analysed with the method of rational reconstruction may differ in nature. As Malte Ibsen rightly observes, we may distinguish basic social practices (understanding) and institutionalized social practices (democracy) in Habermas’ work (Ibsen, 2013: 87–9, 91–3). This is of particular importance because the epistemic status of the scientific theses developed differs according to the nature of the reconstructed practice. In the case of institutionalized practices, which are constructed by human beings and hence artificial, as it were, it seems to be inadequate to describe the intuitive ‘knowledge’ of participants as a ‘species competence’. Habermas deliberately restricts theses with such a strong claim to validity to the basic social practice of intersubjective communication:

If the pretheoretical knowledge that is to be reconstructed expresses presumably universal capabilities, presumably general, cognitive, linguistic, or interactive competencies (or partial competencies), then what begins as an explication of meaning aims at the reconstruction of species competencies. (Habermas, 1977: 603 [trans. M.P.]; emphasis added)

By implication, rational reconstruction results in the formulation of scientific statements of different epistemic status depending on the nature of the practice analysed. In the case of institutionalized practices, where the analysis is not guided by the assumption of a general competence, the method remains on the level of the explication of meaning that points out under which conditions the participants may regard their social practice as meaningful, i.e. according to which reasons it may be demonstrated to be rational. As these reasons in many cases have counterfactual character, they may fulfill the function of a normative corrective for the practice on the basis of which they are formulated. In other words, the reconstruction of the rational core of a particular practice points beyond the factual characteristics of this practice and may be invoked for the formulation of a normative standard of context-transcending validity.

In light of this interpretation of rational reconstruction it becomes apparent to what extent Habermas applies the method in a consistent manner across his works. Both in the TCA and in BFN, a social practice forms the starting point for the rational reconstruction. In the first case, we are dealing with communicative action, in the second with constitutional democracy. In both cases, presuppositions are the object of reconstruction. Habermas asks which counterfactual assumptions the participants need to make in order that the practices of communicative action and constitutional democracy, respectively, may present themselves to them as rationally justified and hence as worthy of preservation. In the context of the universal pragmatics Habermas analyses which idealizations make sense of the social practice of exchanging reasons; concerning the system of rights he asks which assumptions bring the meaning of constitutional democracy to light. In this way, on the one hand he explains the persistence of these forms of social interaction and on the other hand the reconstruction in both cases leads to the explication of the normative substance of the analysed practices and ultimately results in the formulation of a standard which may be applied with critical intent to the correlating practice. In one case, this is the notion of the ideal speech situation, in the other the system of rights.

The vast disagreement in the perception of the method of rational reconstruction seems to be traceable, at least partly, to the different epistemic status of the respectively formulated scientific statements. The claims that are presented as a result of a rational reconstruction in the TCA are of a different nature than the claims presented in BFN. On the one hand we are confronted with quasi-hypotheses about an allegedly existing ‘species competence’ of knowing intuitively the rules of an ideal discourse, on the other hand we find a normative conception of constitutional democracy that is not connected to such a competence claim. This difference, however, is not the result of a variation in method but of the different nature of the practices examined.

Action oriented towards understanding is presented by Habermas as the altogether fundamental form of action. All other forms of social action exist merely as ‘derivatives’ (Habermas, 1976a: 21). As we are dealing with the basic and, as it were, inevitable form of human action, the presuppositions that enable this practice by implication need to be at the disposal of every person, in form of an intuitive competence. The practice of constitutional democracy, by contrast, is a constructed practice that from the outset serves a normative goal – legitimately to regulate collective affairs through the medium of positive law. Thus, the reconstruction in this case aims at the identification of the normative preconditions that the participants need to regard as fulfilled insofar as they reflect on the meaning of the practice of constitutional democracy but that cannot be assumed to be intuitively known by every actual participant. Understanding the rational core of constitutional democracy is simply not a ‘species competence’.

Rational reconstruction of supranational constitution-making

Against this background, we can now shed light on the methodological approach in TCEU. In accordance with the goal of rational reconstruction, to identify particles and fragments of ‘existing reason’ in social practices, Habermas’ aim in his essay on Europe is to ‘acknowledge the democratic character of the form already assumed by the European Union as a result of the Treaty of Lisbon’ (Habermas, 2012: 21). In important respects, the line of argument is similar to the development of the system of rights in BFN. In both cases, Habermas mentally simulates a process of constitution-making in order to determine which presuppositions on behalf of the participants would reveal the core of rationality inherent in the legal practice analysed and which normative criteria of democratic legitimacy may in turn be deduced from it.

The argument of TCEU unfolds in three steps. First, Habermas takes stock of the core features of his object of study. The social practice that forms the starting point for the rational reconstruction is the law-making and law-enforcement in the EU. The focus is on the characteristics that distinguish the European legal practice from intergovernmental organizations as well as from federal states. In this regard, the first thing to note is ‘that the European treaties established a direct legal relation between the institutions and the citizens of the Union, and have thereby created an autonomous level of law independent from the law of the member states’ (Habermas, 2012: 25–6). This is reflected, for example, in the decisions of the European Court of Justice but also in the fact that the European Parliament needs to be involved when the treaty is amended and that it ‘is a body on par with the Council of Ministers within the “ordinary legislative procedure”’ (ibid.: 35). In contrast to intergovernmental organizations, then, the EU institutions are not only accountable to the member states or their peoples but moreover to a political subject formed by the EU citizens.

A further important observation is that the member states subordinate themselves to supranational legislation while, at the same time, the European level is not superior to national constitutional law as it would be the case in a federal state. The states retain their monopoly of force as well as their competence-competence with regard to the supranational legal order. Neither has the EU the means of force available for the enforcement of its laws nor can the EU treaty be amended without the unanimous consent of the member states (Habermas, 2012: 24–5). As a result, the EU differs fundamentally from the constitutional structure of a federal state. Nevertheless, Habermas maintains that it goes far beyond an international organization because with ‘the introduction of citizenship of the Union, with the explicit reference to a common European weal and with the recognition of the Union as an autonomous legal personality, the treaties have become the foundation of a political community with a constitution of its own’ (ibid.: 30). To make sense of the seemingly contradictory structure of the supranational political system, Habermas resorts to the method of rational reconstruction in the second step of his analysis:

A suitable way of clarifying the constitutional and legal structure of this peculiar formation is to reconstruct its history of emergence, interpreted in teleological terms, as though the more or less contingent historical outcome had been the deliberate result of a regular constitutional convention. (Habermas, 2012: 31)

Starting out from the distribution of competences and the procedural rules described above, Habermas begins to search for elements of rationality in the EU’s legal practice. To this end, he conducts a thought experimental process of supranational constitution-making that abstracts from the fact that the constitution of the EU is ‘the work of political elites’ (ibid.: 30). The implicit guiding question of the imagined constitution-making process is on the basis of which counterfactual idealizations those affected could regard the European legal practice as rationally justified.

The simulated constitution-making process begins in a hypothetical national constellation, i.e. in a Europe without supranational institutions. The citizens are confronted with the problem that their national democracies find themselves in a growing dependence ‘on the systemic constraints of an increasingly interdependent world society’ (Habermas, 2012: 16). As a result, the states’ capacity to regulate social phenomena fades, as does, consequently, the substance of democratic self-government. Against this background, the citizens regard it as rational to found a supranational polity in order to regain capacities for political regulation and, by implication, democratic control over cross-border economic, ecological and social processes. At that point, Habermas asks: If the citizens of the European peoples decided to found a supranational polity for the regulation of cross-border collective affairs, which reasons could they then have to establish a European community of citizens and supranational procedures of legislation and, at the same time, to leave the monopoly of force and the competence-competence on the national level and under control of the national peoples?

The first fundamental decision of the fictional constitution-makers concerns the question of the subject of legitimacy of the constituent process: they divide the ‘sovereignty at the origin of [the] political community which is going to be constituted’ (Habermas, 2012: 38; original emphases). Instead of ascribing the constituent power to the (future) community of EU citizens, the participants assign it to a dual subject of legitimacy consisting of the European ‘people’ on the one hand and the national peoples on the other. What motivates this division of constituent power? It is crucial that the constitution-makers do not aim to constitute a European federal state. From the perspective of the founders it is unclear whether a multinational and multilingual federal state, characterized by strong internal asymmetries in the living conditions, would ever be able to reach an adequate level of democratic legitimation. For that reason, the participants of the constitution-making process register a constitutional proviso from the national citizens’ perspective. They want to see their constitutional democracies preserved as they regard them as guarantors of freedom.

[T]hrough their participation in the founding process, the European peoples ensure that their respective states survive within the federal polity in their freedom-guaranteeing function of constitutional states. (Habermas, 2012: 39; original emphases)

For this reason, the participants do not merge the national constituent powers into a single European constituent power. Rather, ‘the citizens involved (or their representatives)…split into two personae from the beginning; in that case every person as a European citizen in the constitution-founding process encounters herself, as it were, as a citizen of an already constituted national people’ (ibid.: 38). This dual perspective is intended to do justice to the fact that the goal of the constitution-making process consists in establishing a supranational polity while simultaneously preserving the national democracies.

The pouvoir constituant mixte then constructs the constitutional structure of the supranational polity from two perspectives. In their role as national citizens the participants ask themselves how their national perspective of justice may be brought to bear in a democratic process of supranational legislation and in their role as citizens of the European Union they try to find institutional paths for the democratically legitimate pursuit of the European common good. The result is the institutionalization of ‘the two legitimation tracks running through the Parliament and the Council, respectively’ (Habermas, 2012: 37). While the European Parliament as democratic representation of the European citizens serves European interests, the intergovernmental council is the channel through which the national concerns are fed into the supranational decision-making process. In this way, the meaning of the combination of supranational and intergovernmental elements in the political system of the EU becomes accessible. Furthermore, in the constitution-making process the nationally constituted peoples claim the monopoly of force and reserve a right of exit for themselves because it appears that only in this way the preservation of the national democracies may be guaranteed. In light of this rational reconstruction, then, it appears as though the EU, in its current form, ‘had been created for good reasons by two constitution-founding subjects endowed with equal rights’ (ibid.: ix; emphases added).

In the last step, the rational reconstruction leads to the formulation of a normative standard that is invoked for a critique of the practice out of which it had initially been developed. The notion of a dual constituent subject enables us to ‘identify the democratic deficits of the EU treaties currently in force’ (Habermas, 2012: 42–3). In fact, the treaties fall short of the idealized picture of the hypothetical constitution-making process against the background of which the political system of the EU appears to be rationally justified. From a reconstructive perspective, the EU’s legal practice may indeed be based on the presupposition that the community of EU citizens and the European peoples ‘act consistently as equal partners in all legislative functions’ (ibid.: 41), but de facto it is a fair way off this ideal. For Habermas, then, the rational reconstruction of the European constitution-making process leads to three demands for reform. First, the elections to the European Parliament should be transnationalized through the introduction of a unified electoral law and a Europeanization of the party system. Second, the position of the European Parliament in the legislative process needs to be strengthened: ‘A balance between the competences of the Council and the Parliament needs to be achieved in all fields of policy’ (ibid.: 43). Along with this goes that the commission should be equally accountable to the parliament and the council. Third, the ‘extra-constitutional power’ (ibid.: 44) of the informally operating council would have to be domesticated through a systematic legal regulation of its competences.

Conclusion

Which conclusions may be drawn, now, from the discussion of the Habermasian method and from the explanation of the notion of a European pouvoir constituant mixte? To begin with, we can state that the following interpretation of rational reconstruction may adequately describe the application of the method in the TCA, in BFN and in TCEU and convincingly integrate the explanatory as well as the justificatory dimension of reconstructive theory-building: a rational reconstruction is the philosophical enterprise of identifying the presuppositions that are constitutive for a given social practice in the sense that they need to be assumed, at least implicitly and possibly counterfactually, by the participants in order that their shared practice may appear to them as meaningful and thus worthy of preservation. In this way, a core of communicative rationality embodied in the analysed practice shall be brought to light as it is pointed out under which conditions the practice may be discursively justified from the participants’ perspective. The identified particles and fragments of ‘existing reason’ form the starting point for the formulation of a normative standard that may in turn be invoked for a critique of the practice out of which it had initially been developed.

If one understands Habermas’ method in this sense, the thesis presented in TCEU, according to which the conception of a pouvoir constituant mixte is the result of a rational reconstruction of the history of the emergence of the European constitution, may be made plausible. Habermas analyses to what extent the supranational constitution embodies a core of rationality that may be decoded in discourse-theoretical terms. To this end, he asks which presuppositions we would have to take for granted on behalf of the citizens in order to identify traces of communicative rationality in the institutional structure of the EU. Habermas argues that the core elements of the current constitutional structure may be discursively justified from the participants’ perspective if we assume that the EU has been established by a dual constituent subject. From this standpoint, the European constitution appears as an attempt by the citizens to accommodate both their concerns as members of a European constitutional subject and their interests as members of national constitutional subjects. The combination of supranational legislation and citizenship of the union on the one hand and national monopolies of force and reservation of the competence-competence on the other hand, within one and the same constitutional construct, reflects the communicative rationality of a dual constituent subject.

While this line of argument represents a convincing application of the method of rational reconstruction, an objection which can only be finally hinted at here arises out of the theory of constituent power. The application of the concept of constituent power to the supranational context is indeed a remarkable step with a high potential for innovation (cf. Patberg, 2013). However, Habermas seems to reverse, to a certain extent, the democratic-theoretical logic of the classical theory of the pouvoir constituant. According to the conventional understanding, the concept of constituent power describes the extra-constitutional entitlement to constitution-making that may not in any way be restricted by positive legal norms. The content of a constitution and hence the determination of the concrete shape of a polity are at the disposal of the bearer of constituent power. Thus, it is normatively contradictory to ascribe constituent power to a subject and at the same time to prescribe the normatively imperative result of the constitution-making process (Sieyes, 2003: 133–40; Maus, 2011: 73–92).

Habermas, however, starts out from a specific polity and identifies, via a rational reconstruction of its constitutional structure, the holders of constituent power. In this context, the argument runs from the constitution to the pouvoir constituant and not the other way round. Moreover, Habermas invokes the conception of the dual constituent subject as basis for the formulation of prescriptive statements as to the desirable results of future processes of constitutional politics on the EU level. Especially the latter is problematic from the perspective of democratic theory because the content of constitutional decisions should be defined by the constituent subjects themselves. Instead of the theory of constituent power being used for the formulation of reform agendas, it should be employed to reveal the legitimacy deficits of the executive-centered processes of European constitutional politics. This would presuppose the development of a systematic theory of constituent power beyond the state, for which the rational reconstruction in TCEU provides valuable starting points.

Footnotes

Notes

References

Alford

C. F.

(1985) ‘Is Jürgen Habermas’s Reconstructive Science Really Science?’, Theory and Society 14(3): 321–40.

Baynes

(1990) ‘Rational Reconstruction and Social Criticism: Habermas’s Model of Interpretive Social Science’, in Kelly

Michael

(ed.) Hermeneutics and Critical Theory in Ethics and Politics. Cambridge, MA and London: MIT Press, pp. 122–45.

Besson

(2009) ‘Whose Constitution(s)? International Law, Constitutionalism, and Democracy’, in Dunoff

Jeffrey

Trachtman

Joel P.

(eds) Ruling the World? Constitutionalism, International Law, and Global Governance. New York: Cambridge University Press, pp. 381–407.

Celikates

(2009) Kritik als soziale Praxis: Gesellschaftliche Selbstverständigung und kritische Theorie [Criticism as Social Practice: Social Self-understanding and Critical Theory]. Frankfurt am Main and New York: Campus.

Cooke

(2012) ‘Realism and Idealism: Was Habermas’s Communicative Turn a Move in the Wrong Direction?’, Political Theory 40(6): 811–21.

Garz

, (2000) ‘Kritik, Hermeneutik, Rekonstruktion: Über den Stellenwert der Methode bei Jürgen Habermas’ [Criticism, Hermeneutics, Reconstruction: On the Status of Method in Jürgen Habermas], in Müller-Doohm

Stefan

(ed.) Das Interesse der Vernunft: Rückblicke auf das Werk von Jürgen Habermas seit ‘Erkenntnis und Interesse’ [The Interest of Reason: Retrospectives on Jürgen Habermas’ Work since ‘Knowledge and Human Interests’]. Frankfurt am Main: Suhrkamp, pp. 201–17.

Gaus

(2009) Der Sinn von Demokratie: Die Diskurstheorie der Demokratie und die Debatte über die Legitimität der EU [The Meaning of Democracy: The Discourse Theory of Democracy and the Debate on the Legitimacy of the European Union]. Frankfurt am Main and New York: Campus.

Gaus

(2013) ‘Rational Reconstruction as a Method of Political Theory between Social Critique and Empirical Political Science’, Constellations 20(4): 553–70.

Günther

(1994) ‘Diskurstheorie des Rechts oder liberales Naturrecht in diskurstheoretischem Gewande?’ [Discourse Theory of Law or Liberal Natural Law in Discourse Theoretical Guise?], Kritische Justiz 27(2): 470–87.

10.

Habermas

(1971) Knowledge and Human Interests, trans. Shapiro

J. J.

. Boston, MA: Beacon Press.

11.

Habermas

(1975) ‘Towards a Reconstruction of Historical Materialism’, Theory and Society 2(3): 287–300.

12.

Habermas

(1976a) ‘What is Universal Pragmatics?’, in Habermas

Jürgen

(1998) On the Pragmatics of Communication, ed. Cooke

. Cambridge, MA: MIT Press, pp. 21–103.

13.

Habermas

(1976b) Zur Rekonstruktion des Historischen Materialismus [Reconstruction of Historical Materialism]. Frankfurt am Main: Suhrkamp.

14.

Habermas

(1977) ‘Ein Fragment: Objektivismus in den Sozialwissenschaften’ [A Fragment: Objectivism in the Social Sciences], in Habermas

Jürgen

(1982) Zur Logik der Sozialwissenschaften [On the Logic of the Social Sciences]. Frankfurt am Main: Suhrkamp, pp. 541–607.

15.

Habermas

(1979) Communication and the Evolution of Society, trans. McCarthy

. Boston, MA: Beacon Press.

16.

Habermas

(1984a) The Theory of Communicative Action, vol. 1, Reasons and the Rationalization of Society, trans. McCarthy

. Boston, MA: Beacon Press.

17.

Habermas

(1984b) The Theory of Communicative Action, vol. 2, Lifeworld and System – A Critique of Functionalist Reason, trans. McCarthy

. Boston, MA: Beacon Press.

18.

Habermas

(1990) ‘Reconstruction and Interpretation in the Social Sciences’, in Habermas

Jürgen

, Moral Consciousness and Communicative Action, trans. Lenhardt

Weber Nicholsen

. Cambridge: Polity Press, pp. 21–42.

19.

Habermas

(1996a) ‘Reply to Symposium Participants, Benjamin N. Cardozo School of Law’, Cardozo Law Review 17 (4–5): 1477–557.

20.

Habermas

(1996b) Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. Rehg

. Cambridge, MA: MIT Press.

21.

Habermas

(1996c) ‘On the Internal Relation between the Rule of Law and Democracy’, in Habermas

Jürgen

, The Inclusion of the Other, ed. Cronin

De Greiff

. Cambridge, MA: MIT Press, pp. 253–64.

22.

Habermas

(1996d) ‘Some Further Clarifications of the Concept of Communicative Rationality’, in Habermas

Jürgen

(1998) On the Pragmatics of Communication, ed. Cooke

. Cambridge, MA: MIT Press, pp. 307–42.

23.

Habermas

(2001) ‘Constitutional Democracy: A Paradoxical Union of Contradictory Principles?’, Political Theory 29(6): 766–81.

24.

Habermas

(2009) ‘Political Communication in Media Society: Does Democracy Still have an Epistemic Dimension? The Impact of Normative Theory on Empirical Research’, in Habermas

Jürgen

, Europe: The Faltering Project, trans. Cronin

. Cambridge: Polity Press, pp. 138–83.

25.

Habermas

(2012) The Crisis of the European Union: A Response, trans. Cronin

. Cambridge: Polity Press.

26.

Honneth

(2001) ‘Reconstructive Social Critique with a Genealogical Reservation: On the Idea of Critique in the Frankfurt School’, Graduate Faculty Philosophy Journal 22(2): 3–12.

27.

Honneth

(2014) Freedom’s Right: The Social Foundations of Democratic Life. Cambridge: Polity Press.

28.

Ibsen

(2013) ‘Global Justice and Two Conceptions of Practice-Dependence’, Raisons Politiques 13(3): 81–96.

29.

Iser

(2008) Empörung und Fortschritt: Grundlagen einer kritischen Theorie der Gesellschaft [Indignation and Progress: Foundations of a Critical Theory of Society]. Frankfurt am Main and New York: Campus.

30.

Iser

(2009) ‘Rationale Rekonstruktion’ [Rational Reconstruction], in Brunkhorst

Hauke

Kreide

Regina

Lafont

Cristina

(eds) Habermas-Handbuch: Leben – Werk – Wirkung [Habermas Handbook: Life – Oeuvre – Impact]. Stuttgart: Metzler, pp. 364–6.

31.

Kalyvas

(2005) ‘Popular Sovereignty, Democracy, and the Constituent Power’, Constellations 12(2): 223–44.

32.

Kalyvas

(2008) Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt. New York: Cambridge University Press.

33.

Maus

(1996) ‘Liberties and Popular Sovereignty: On Jürgen Habermas’s Reconstruction of the System of Rights’, Cardozo Law Review 17 (4–5): 825–82.

34.

Maus

(2011) Über Volkssouveränität: Elemente einer Demokratietheorie [On Popular Sovereignty: Elements of a Democratic Theory]. Berlin: Suhrkamp.

35.

McCarthy

(1994) ‘Kantian Constructivism and Reconstructivism: Rawls and Habermas in Dialogue’, Ethics 105(1): 44–63.

36.

Niesen

Eberl

(2009) ‘Demokratischer Positivismus: Habermas und Maus’ [Democratic Positivism: Habermas and Maus], in Buckel

Sonja

Christensen

Ralph

Fischer-Lescano

Andreas

(eds) Neue Theorien des Rechts [New Theories of Law]. Stuttgart: UTB, pp. 3–26.

37.

Olson

(2003) ‘Do Rights Have a Formal Basis? Habermas’ Legal Theory and the Normative Foundations of the Law’, Journal of Political Philosophy 11(3): 273–94.

38.

Patberg

(2013) ‘Constituent Power beyond the State: An Emerging Debate in International Political Theory’, Millennium – Journal of International Studies 42(1): 224–38.

39.

Pedersen

(2008) ‘Habermas’ Method: Rational Reconstruction’, Philosophy of the Social Sciences 38(4): 457–85.

40.

Pedersen

(2009) ‘Habermas and the Political Sciences: The Relationship between Theory and Practice’, Philosophy of the Social Sciences 39(3): 381–407.

41.

Peters

(2006) ‘The Constitutionalist Reconstruction of International Law: Pros and Cons’, NCCR Trade Working Paper no. 2006/01.

42.

Peters

(1994) ‘On Reconstructive Legal and Political Theory’, Philosophy & Social Criticism 20(4): 101–34.

43.

Sieyes

E. J.

(2003) Political Writings: Including the Debate between Sieyes and Tom Paine in 1791, ed. Sonenscher

. Indianapolis, IN: Hackett Publishing.