Article: Beyond Facts and Norms: How Psychological Transparency Threatens and Restores Deliberation’s Legitimating Potential

Arthur Lupia
Yanna Krupnikov
Adam Seth Levine
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86 S. Cal. L. Rev. 459

In Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, Jürgen Habermas describes a challenge to modern democracies and a procedure for adapting to this challenge. The challenge is that in the absence of natural law, or any other universally accepted moral or ethical code, no common framework informs people about what kinds of laws are, and are not, legitimate. Hence, if laws are to be accepted by, and hence binding on, the populations for whom they are intended to apply, an alternate legitimating mechanism is required.

Habermas describes communicative procedures that have the potential to provide legitimacy to collective decisions. In this ideal discourse (“ID”), as we describe it, all citizens have an equal right to speak and an obligation to listen. If deliberations culminate in agreement on the validity of socially relevant moral, ethical, or technical propositions, then the propositions serve as substantive foundations for subsequent legislative decisions and bureaucratic actions. [MORE]