–Leonardo García Jaramillo, Full Professor, Policy and Development Area, Universidad EAFIT, Medellín, Colombia[1]
To Cristina Lafont,
“Was für eine Philosophie man wähle, hängt davon ab, was man für ein Mensch ist.”
Fichte
Courts and the Normative Infrastructure of Democracy
In the context of criticisms of legal positivism, which holds that legal norms are mere products of policy decisions or political will, Habermas asked whether law is merely a sophisticated instrument for the exercise of administrative and political power, or whether it still serves its higher purpose as a vital medium for social integration. The law’s ability to provide the necessary cohesion for this role stems from its unique formal properties. Modern law is uniquely “cashed out” through subjective rights, is inherently positive (enacted), and is fundamentally coercive. However, this formal structure remains brittle without the expectation of legitimacy. The system only achieves true stability when it remains open to being followed, out of genuine respect for the law and human rights, which are necessary for the legal institutionalization of the democratic process of self-legislation.
The “communicative power”, a cardinal notion in Habermas´s normative theory of democracy, legitimizes the political system and its actions. It is generated in political discourse in contrast to social power and administrative power. Discourse ethics holds that a moral norm is valid only if all those affected by it can accept its consequences following a debate grounded in the ideas of truth, justice, and human rights. Communication, as part of this moral theory, has a dual nature: an empirical process used in everyday circumstances and an ideological/ideal component, such as freedom and democracy. If this communicative process functions correctly, as he argues in “Between Facts and Norms” (1996 [1992]), his intellectually challenging major treatise on law and democracy, citizens can conceive themselves as “authors and addressees” of the law because they have indirectly participated in the legislative process. He supports the idea of a “public justification” for the reasons underlying the coercive exercise of government bodies to impose norms. The objective of this process of providing justificatory reasons is to generate consensus among the opposing parties through genuine discourse within the institutional framework.
It is important at this point to introduce Habermas’s views on the constitutional court and legislature in the context of the separation of powers. Three key points stand out in protecting the democratic process and the integrity of the law. First, the court is a guardian of the democratic process, not a legislator. The court does not create law in a vacuum, but it ensures that the “sluices” of communication between the informal public sphere and formal legislative bodies remain open and functional. Second, the court must not act as a “moral sovereign” or “parallel legislator” imposing its own values on society. Third, the court’s role is to safeguard the normative infrastructure of communication that makes democracy possible against attempts by interest groups to hijack public debate or turn politics into a mere spectacle of acclamation. This ensures that the political legislature respects the “discourse principle” by guaranteeing that laws emerge from an inclusive, deliberative process. It guarantees that the legislative decision-making process is democratic and respects basic rights.
Within the framework of the separation of powers, Habermas argues that constitutional jurisdiction should preserve a balance of co-originality between private autonomy (individual rights) and public autonomy (popular sovereignty). It must ensure that neither dimension prevails over the other. This means avoiding a state that disregards individual rights in the name of “the people” and a judiciary that undermines democratic participation by imposing its own ethical perspective. While the legislature has the legitimacy to pursue political goals and collective programs, the judiciary must ensure that the legislature does not erode the system of constitutional rights that makes democracy possible in the pursuit of these objectives. The notion of popular sovereignty is stated in discursive terms: “all political power derives from the communicative power of citizens”.
Norms obtain their legitimacy from a form of recognition rooted in rationally motivated consensus, which in turn generates a binding force stemming from the better argument. According to this principle, “Only those norms are valid to which all persons possibly affected could agree as participants in rational discourses.” Courts must ensure that laws are enacted through a process that gives all those potentially affected the opportunity to contribute to the law. Law transforms the communicative power generated by public debate in the public sphere into administrative power exercised by the state and the legislature. Law acts as a “mediator” between the “Lifeworld” (where communicative power arises) and the system (where administrative power operates). Constitutional jurisdiction intervenes to ensure that this flow of communication remains uninterrupted and that administrative power remains connected to citizens’ reasoning and discourse. Courts must intervene when the democratic process is “disconnected” from civil society or is colonized by the market.
According to Dworkin, constitutional courts guarantee integrity to the legal system by treating the legal order as a coherent whole of principles and rules rather than as a set of isolated norms. This enables each judicial decision to derive its moral legitimacy from harmonious alignment with the constitution as a whole. The court must also ensure that the moral substance of legal principles permeates the entire legal system. In dealings with political power, courts must rein in consequentialist reasoning. Rights are trumps to prevent the state’s economic interests or political objectives from undermining citizens’ dignity or autonomy. Rights, therefore, must be considered ethical barriers that cannot be sacrificed for the sake of collective goals or the state’s economic interests. Unlike positivist approaches, Habermas argues that courts cannot be morally neutral; they must instead apply the moral principle of “equal respect and consideration” to all.
Public justification is grounded not in respect for people as free and equal beings, but in the ideas of rationality and morality. The only way to achieve public justification is through argumentation that allows citizens to recognize the merits of others’ demands. The “will formation” is the discursive process of subjecting our claims to criticism to transform them and achieve consensus through the adoption of a discursive and moral standpoint. Rational discourse, free from coercion or strategic interest, leads to consensus through valid, well-reasoned claims. This discourse ought to be public and inclusive, to bestow equal communication rights for participants, to require sincerity, and to diffuse any force. When discussing political issues, citizens can generate reasons and arguments while cultivating a motivating force that accompanies their “discursively produced and intersubjectively shared beliefs”.
Habermas applies the idea of the normative value of communication to law through the principles of discourse and universalization (a norm is valid when all can accept the consequences of its universal observance without coercion). The legitimizing power of consensus lies in this idea. Instead of relying on religious or metaphysical dogmas, morality and political legitimacy depend on communicative procedures. The rationally motivated consensus from which legal norms derive their legitimacy is not a result of coercion, money, or administrative power, but of the “forceless force of the better argument” (“zwanglose Zwang des besseren Arguments”). The only power that should succeed in ideal communication is the inherent persuasiveness of a superior argument. There must be a process of cooperative translation from singular views to the rational and accessible, so that only what everyone can understand and accept is subsequently incorporated into the legal and political system. The health of a democracy does not depend on citizens forgetting their faith, but on their ability to translate it into a shared rationale. If we expect the legitimacy of law to emerge from the democratic process, we must embrace democracy’s epistemic function. Deliberative politics is committed to the notion of procedural legitimacy.
Closing
Habermas’s philosophy was always consistent with a concern not only for the development of the social and human sciences but also for the regression of Enlightenment ideals in society. Advocating for a public sphere structured by criteria of rationality –such as epistemic cooperation between religious and secular citizens and the reciprocal duty of civility– he also provided substantive arguments for shaping this sphere in accordance with normative criteria derived from the basic principles of the democratic rule of law and basic rights.
The rise of algorithmic polarization, political evangelism, populist demagoguery, autocracy, and “petty political opportunism” aimed at retaining power makes Habermas’s philosophical, social, political, and democratic work particularly relevant today. His exemplary style of argumentation draws on constitutional values to substantiate arguments motivated by the pursuit of mutual understanding and the universal validity of discourse.
In one of his last newspaper columns, in November 2025, Habermas wrote, regarding the decline of the transatlantic alliance: “From here on, we must move forward on our own” (“Von hier an müssen wir alleine weitergehen”). This sentence has now been transmuted to signify our orphanhood of this philosopher and public intellectual, almost immeasurable in the vastness of his ideas and in the traditions in the development of whichhe played a decisive role. Two generations later, we are left with an immense body of work that not only interprets the world but also constructs the categories through which we continue to try to understand and transform it.
“From here on, we must move forward on our own.”
Photo by Regina Schmeken
References
Dews, Peter (ed.), Autonomy and Solidarity: Interviews with Jürgen Habermas, London–New York, Verso, 1992.
Felsch, Philipp. The Philosopher: Habermas and Us, Hoboken, NJ, Polity, 2025.
Habermas, Jürgen. The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society, Thomas Burger and Frederick Lawrence (trans.), Cambridge, MIT Press, 1989 [1962].
_____. Moral Consciousness and Communicative Action, Christian Lenhardt and Shierry Weber Nicholsen (trans.), Cambridge, The MIT Press, 1990 [1983].
_____. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, William Rehg (trans.), Cambridge, The MIT Press, 1996 [1992].
_____. The Inclusion of the Other: Studies in Political Theory, Ciaran Cronin and Pablo De Greiff (eds.), Cambridge, The MIT Press, 1998 [1996]
_____. Truth and Justification, Barbara Fultner (trans.), Cambridge, The MIT Press, 2003 [1999].
_____. Between Naturalism and Religion, Ciaran Cronin (trans.), Cambridge/Malden, Polity, 2008 [2005].
_____. The Theory of Communicative Action, Thomas McCarthy (trans.), Boston: Beacon Press, 1984 [1981].
_____. Also a History of Philosophy [2019], Vol. I: “A Project of Genealogy of Postmetaphysical Thinking”, Polity Press, Cambridge, 2023; Vol. II: “The Occidental Constellation of Faith and Knowledge”, 2024; Vol. III: “Rational Freedom. Traces of the Discourse on Faith and Knowledge”, 2025.
_____. A New Structural Transformation of the Public Sphere and Deliberative Politics, Cambridge, Polity Press, 2023 [2022].
Müller-Doohm, Stefan. Habermas: A Biography, Polity Press, Cambridge, 2016.
Winkler, Willi. “Der Sturmvogel,” in: Süddeutsche Zeitung, Munich, March 14, 2026.
Suggested citation: Leonardo García Jaramillo, Habermas: The Last Towering Philosopher and Public Intellectual of our Era, A Jurisprudential Obituary Part II, Int’l J. Const. L. Blog, Apr. 22, 2026, at: http://www.iconnectblog.com/habermas-the-last-towering-philosopher-and-public-intellectual-of-our-era-a-jurisprudential-obituary-part-ii/
[1] I am deeply grateful to Cristina Lafont (Northwestern University) and Arnulfo Mateos (Heidelberg University) for their critiques and comments on the first draft.