Habermas: law is an extension of reasoning about morality in non-traditional societies, where one cannot appeal to an external source of authority to have legitimacy. Liberal and democratic elements embody that type of thinking: each need to be convinced (non-external requirement of acceptance). Norms that govern groups typically happen implicitly; the move to law is when this is not working out and the process needs to be made explicit as well as coercive: enforced. It is not enough to have an implicit norm - it has to some governing power.

institutionalization of deliberation - the ideal method of generating legitimate norms on the basis of believing that all are equal

Liberties: political: equal voting power, freedom of political thought, equality before the law
Liberties: 'modern': necessary feature of public discourse, need for civil society (Habermas). Naturally consequence of premise of equality (Cohen)

Ideally consensus/ majority is necessary due to time constraints etc. // identity/will emerges // ideas and reasons compete from those that have found articulation in civil society// certain types of reasons 'work' ideal = impartiality, non-ideal - need to win majority therefore reasons of general appeal // continuous process

Different types of reasons: Forst - justification, Bohman = accepted in fact// Cohman - raesonable to all (Rawlsian public reason// Habermas - impartiality // Lafont - reasonably accept

Much of deliberative democracy focuses on what I call 'input': how to ensure that the voices of 'the people' are 'heard.'

Common thread: continual emergence from a body where each has equal standing; the only legitimate laws are ones where the people (understood in this way) are both subject and author

Recognition that the content of political deliberation are policies, legislation, and institutions. The things that are being discussed are in fact policies.

What it means for deliberation to translate into policies is not spelled out fully.

What is implied is that the process of reasoning: of presenting proposals, argumentation etc if that process is inclusive then the output will be legitimate in virtue of having a procedure that is inclusive

This presumption has resulted in a focus on input - how to make it inclusive, equal rights and freedoms, the role associations and civil society etc.

Actual concrete policies are rarely discussed and shown how the the output is the manifestation of the input. What is shown is how deliberation met the criteria of inclusive input. What is often also shown, is that there is a degree of acceptance and belief in the legitimacy of the output. But a concrete relationship between agent X said x and Y said y, reasoned to C and generated c as a result of C is rarely discussed - and maybe with good reason.

Quite a good argument is that given that the proposals are the topic under discussion, it is kind of obvious or at least unnecessary to spell out what it means for input to translate into output. This is something I will take up in the following section.

Why it is problematic to assume that there is no need for an 'extra step'.

The argument is not there there is no attention given to this, just not very much or sufficient attention. A few things are taken for granted, but upon closer inspection, it is not as self-evident that things will 'work out this way.' This can be shown by examining how things can go wrong or differently.

There are two ways in which output figures into the deliberative democratic ideals: 1) starting with tangible/concrete proposals and then moving to reasons; 2) starting with reasons and moving to proposals

1) proposals are presented; argued for and against. Disagreement has to be about specific content. In an ideal setting, they should agree for the same reasons and the right type of reasons. But if we are in a situation where concrete proposals are being presented, I believe we are a few steps removed from the ideal - where we need to make sure that we agree for the same and right reasons.

Disagreement about proposal: then reasons comes in. There are many reasons to think why reasoning would have to come. The most obvious reason is that one needs to explain why they disagree. Recourse to reason is necessary

Given the deliberative nature - reasons need to be given to convince others of their proposals or adaptation of their proposal.

2) we can also start with general ethical-political or moral questions. In Habermas's terms - the first is 'what kind of 'people' do we want to be? What identity are endorsing and developing? Or whether our identity/policy proposals accord with moral reasoning.

These types of questions tend to be abstract and general - by nature.

Agreement or disagreement can happen at the abstract reason level saying 'no' to the concrete policy proposal

Each is significant in its own way - but in terms of political power, only the latter really matter.

This is because disagreement about abstract norms and values does not amount to anything that can be coerced.

This is not to undermine the importance of abstract reasoning, but to shed light on the importance of the concrete policies that 'conclude' debate; the things that is ultimately coercive

If we look at the types of reasoning and discussion that can happen, essentially backwards (proposal first, reasons later) or forwards (reasons first, proposal later); agreement on the proposal is a necessary feature constitutional democracy; agreement for the same reasons is desirable, but not necessary

Reasoning giving should not stay at the abstract and hypothetical: if a norm is deemed worthy, it should be 'felt' in society. Although deliberative democrats do a lot of work at the abstract/ideal level, it is ultimately a theory about real political power. Whatever is discussed in parliament matters. If there is sufficient agreement about a need for a solution for x, a solution for x should be produced.

If we take an 'ideal' case where we start reasoning forwards and find general norms, values, goals that we agree we want to pursue and agree that it is insufficient that the deliberation stays at the abstract level, an additional move needs to be made, namely: deliberation about how to translate norms into policies and legislation needs to occur.

This probably seems trivial, but the thing is, it is not actually explicitly stated (although Habermas could be interpreted as stating as much).

This needs to happen for two reasons: using the same general reasons can be interpreted differently. One and the same result can be explained with different reasons.

The agreement (Habermas) that public reason feeds into the process suggests that there is a possibility of tracing a line of reasoning from beginning to end. Reasons are supposed to be powerful

what is implied in the literature is something like this will happen. However, there is a contradiction because reasons generating different results and one and the same reason being interpreted differently.

Looking at the example of civil disobedience from Habermas - what we see is that a distinction needs to be made - there is civil disobedience when one cannot back-up the law because the reasons supporting it are illegitimate. I believe he states they disagree with the law: the law is illegitimate.

A counter-argument is that if two reasons supporting X, that's good. Public reason is functioning as it should. But we need to recognize the cost in this, in that we are 'reaching' each other with our reasons, but with their compatibility for generating X.

His argument that popular sovereignty is ‘subjectless’ and is not visibly identifiable – it is circulating and fluid in the form of communication, takes effect in ‘the circulation of reasonably structured deliberations and decisions, one can attribute a harmless meaning to the proposition that there cannot be a sovereign in the constitutional state.’ P. 136

Political power can use law to exercise political rule; but law in turn regulates how political power does this and in doing so ensures political power’s function. It helps coordinate collective goals by making sure the law is coherent and applied equally (people can count of the law ‘behaving’ in a certain way). In turn, power ensures the execution of laws. Given that political power is being executed in this way, we see that power and law legitimize each other (not Habermas’ words): power allows itself to be shaped and in doing so, lends itself to justifying and upholding the norms and values of the law (legitimization). But kind of Habermas “law remain present as a recourse of justice.” p. 145.

politically enacted law and instrumentally employed power (was supposed to be made legitimate through reason): Discourse theory on political autonomy provides a different explanation. “jurisgenerative communicative power must underlie the administrative power of the government.” (4.1.3)

Law translates communicative power into administration power: administrative power is guided by communicative power. The idea of the constitutional state is that lawmaking communicative power and kept free of illegitimate interventions of social power. Maybe return?

4.2.1 “only if a law expresses a reasonable consensus in view of all these aspects and problem types does it qualify as substantively general in the sense of material equality of treatment.” – aspects: collectives goals and goods, concrete form of life, shared identity, clarify what is equally good, who they are as members of a political community, how they want to live, as well as strategy, and balancing interests and fair compromises. The goal being substantively general.

“legal validity has the illocutionary meaning of a declaration: the state authority declares that an enacted norms has been sufficiently justified and is typically actually obeyed as well.” 4.2.1

For morality, U provides argumentation structure that makes it possible to discern which norms can be accepted rationality. In legality, because we infuse ethical-political, identity, collective goals, and fair compromises – the context figures into the validity of reasoning.
“even if one assumes that in the course of rational collective will formation attitudes and motives change in line with the arguments, the facticity of the existing context cannot be eliminated; otherwise ethical and pragmatic discourses, as well, as compromises would lack an object.” P. 156

Lawmaking is interwoven with the formation of communicative power…..highly abstract process model that starts with pragmatic issues, advances along the branches of compromise formation and ethical discourse to the clarification of moral questions, and ends with a judicial review of norms.” P. 162
With pragmatic reasoning – there is no internal relationship between reason and will, with whether the proposed recommendation is adopted and executed. This is different than with ethical-political discourse where reason and will meet: argumentation (reason) is mixed up with self-understanding and authorship (will). What is means to actualize the will depends on reason; and reason depends on self-understanding of the ‘will.’

Habermas but discourse principles still matter in bargaining – they regulate bargaining from a standpoint of fairness “disciplined by its equal distribution among the parties, …equal opportunity for pressure, so that all affected interests can come into play and have equal changes of prevailing.” P. 167

“political will-formation terminates in resolutions about policies and legal programs that must be formulated in the language of law.” P. 167 (and then judicial review).

“Thus the law is not only constitutive for the power code that steers administrative processes. It represents at the same time the medium for transforming communicative power into administrative power.” P. 169

Political communication is general but “they ultimately issue in the decisions of legislative bodies.” Political will formation aims at legislation: horizontally agreed rights only manifest interpreted and developed in law; administration is programmed through laws. 4.3.1.

“The priority of laws legitimated in democratic procedures has the cognitive meaning that the administration does not have its own access to the normative premises underlying its decision… cannot substitute legislation and adjudication.”
“the utilization of administrative power on the part of the legislature and judiciary is unobjectionable only insofar as this resource is necessary for the institutionalization of the corresponding discourses.”

“On the one hand, they must enable the communicative power of a rationally formed will to emerge and find binding expression in political and legal programs. On the other hand, they must allow this communicative power to circulate throughout society via the reasonable application and administrative implementation of legal programs, so that it can foster social integration through the stabilization of expectations and the realization of collective goals.” P. 176

Law “forces” argumentation to take a certain shape, a shape that reflects the things that legitimize power (communicative power). “..procedural norms regular participation and the distribution of roles in discursive processes of opinion0 and will -formation; they limit the spectrum of admissible topics, questions, an arguments; and they link argumentation to decision making. In this way the instrument of law is reflexively deployed so that discourses for making and applying law can be socially expected in specific places at specific times.” P. 178

p. 179 – what makes majority rule legitimate? It is a proviso decision: one that can be reversed with different majorities. It ‘represents an ongoing discussion; the decision records, so to be speak, the interim result of a discursive opinion-forming process….. Doubt about the legitimacy of majority decisions on matters with irreversible consequences are revealing in this regards. Such doubts are based on the view that the outnumbered minority give their consent to the empowerment of the majority only with the proviso that they themselves retain the opportunity in the future of winning over the majority with better arguments and thus of revising the previous decision.”

Democratic procedure: fair balancing of interests; clarification of ethical self-understanding and moral justification of regulations.
Fair balancing of interests: with the negotiation among representation (p. 181) I believe his point is that there is a process of ‘creation’ or ‘emergence’ of a political will in virtue of negotiated compromises. Politics is not just balancing interests, in a type of aggregate will, but one where there is ‘full’ representation of interests, and the process of bargaining/discourse generated an negotiation or interpretation of how these interests can be reconciled (bargaining) or how to generalize them (discourse.). an aggregated will p. 180

The administration implements and designs strategies for implementation. Efficiency and efficacy, accuracy. From the first few pages, I assume this means that there is already a policy program (since policy programs – pragmatic discourses are part of the legislative processes.) Administration goes further with more concrete and practical implementation problems.
“The competent fulfillment of this function plays an important role in legitimating the administration in a constitutional democracy.” P. 187

“if the legal statue is understood as a general norm that acquires validity from the approval of the people’s representatives in a procedure characterized by discussion and publicity, then it unifies two moments: the power of an intersubjectively formed will and the reason inherent in the legitimating procedure” (taking away an quasi-natural notion of political will/domination). P. 189

There should also be a requirement that in cases where an abstract reasoning process took place, that a connection is made between the reasons that are given and the strategies: that we say we want equality; and we believe that meritocracy is a manifestation of equality: we do not just agree on the reasons - the reasons are acceptable to all- but also what a manifestation of those reasons looks like (implemented)

“….procedures… function as the most important sluices for the discursive rationalization of the decisions of an administration bound by law an state…..The public opinion that is worked up via democratic procedures into communicative power cannot “rule” of itself but can only point the use of administrative power in specific directions.” 7.1.2

Citing John Dewey about importance of the procedure through which majorities become majorities: “Majority rule, just as majority rule, is as foolish as its critics charge it with being. But it never is merely majority rule/… The means by which a majority comes to be a majority is the more important thing: antecedent debates modification of views to meet the opinions of minorities. The Essential need, in other words, is the improvement of the methods an conditions of debate, discussion and persuasion.” 7.2

Ultimately, (quoting Fraser) it is a free public that determines what is of collective concern – through argumentation.

see disussion of Dahl - and bottllenecking of technical knowledge 7.3: p. 320 – the importance/role of functional coordination in complex societies and the difference between lay and experts is not enough. “Dahl has recognized the danger that these ‘cognitive’ problems of functional coordination displace other, namely moral and ethical, problems and overburden the problem=solving capacity of democratic procedures. Various symptoms of such a cognitive overburdening of deliberative politics lend support to the assumption, by now widely accepted, that discursive opinion- and will-formation governed by democratic procedures lacks the complexity to take in and digest the operatively necessary knowledge.”

“The parliamentary complex is the most open for perceiving and thematizing social problems, but it pays for this sensitivity with a lesser capacity to deal with problems in comparison to the administrative complex.” P. 355(administration = inner periphery)

“For the most part, operations in the core area of the political system proceed according to routines. Courts deliver judgments, bureaucracies prepare laws and process applications….. all these processes follow established patterns. From a normative standpoint, the only decisive question concerns which power constellations these patterns reflect and how the atter can be changed….In cases of conflict, that is, processing matters according to the usual conventions is eclipsed by another mode of operation.” P. 357

“political influence supported by public opinion is converted into political power- into a potential for rendering binding decisions – only when it affects the beliefs and decisions of authorized members of the political system and determines the behaviour of voters, legislators…. Just like social power, political influence based on public opinion can be transformed into political power only through institutionalized procedures.” P. 363

“Public opinion can be manipulated but neither publicly bought nor publicly black-mailed. This is due to the fact that a public sphere cannot be ‘manufactured’ as one please.” (in dictatorships there is no public sphere…) p. 364

“interplay of a public sphere based in civil society with the opinion- and will-formation institutionalized in parliamentary bodies and courts the limited scope for action that civil society and the public sphere afford to noninstitutionalized political movements and forms of political expression.’

Public opinion is relieved of decision-making – it can be undifferentiated. However, the quality of public opinion is contingent on the ability for it to be translated in such a way that it can be put into practice – into the political system

“the political public sphere can fulfill its functions of perceiving and thematizing encompassing social problems only insofar as it develops out of the communication taking place among those who are potentially affected.”
“Systematic deficiencies are experiences in the context of individual life histories…. That might be failing in their delivery of services…. Such experiences are first assimilated privately.” p. 365

Political parties and organization interact and are intermeshed with civil society and public sphere. They draw resources from the latter; but also present forms of articulation that the latter adopt. majority
“But public influence is transformed into communicative power only after it passes through the filter of the institutionalized procedures of democratic opinion- and will -formation and enters through parliamentary debates into legitimate lawmaking.” P. 371.

p. 372 the instruments available in politics are limited: they cannot self-organize, especially in functionally differentiated societies. “Political steering can often take only an indirect approach and must, as we have seen, leave intact the modes of operation internal to functional systems and highly organized sphere of actions… give up holistic aspiration of self-organization….. civil society can have at most an indirect effect on the self-transformation of the political system; generally, it has an influence only on the personnel and programming of this system.

“Consensus and majority rules are compatible only if the latter has an internal relation to the search for truth: public discourse must mediate between reason and will, between the opinion formation of all and the majoritarian will-formation of the representatives.

A majority decision may come about only in such a way that its content is regarded as the rationally motivated but fallible result of an attempt to determine what is right through a discussion that has been brought to a provisional close under the pressure to decide: ‘The… practical specification of law results from the development and recognition of the theoretical legal consciousness already present in the society, but it can…succeed in one way only, namely that of voting and deciding according of the majority’(Frobel)..conditional consensus….’Certainly one does not require that the minority by resigning their will, declare their opinion to be incorrect; indeed, one does not even require that they abandon their aims, but rather… that they forego the practical application of their convictions, until they succeed in better establishing their reasons and procuring the necessary number of affirmation votes.’”

Internal relation p. 14“..the binding quality of legal norms does not stem solely from processes of opinion-and will -formation, but arises also from the collectively binding decisions of authorities who make and apply the law. This circumstance makes it conceptually necessary to distinguish the role of authors who make (and adjudicate) law from that of addressees who are subject to established law.”
This text shows recognition that both the procedure and content of law is relevant.

“democratic procedure – which alone provides legitimating force to the law-making process in the context of social and ideological pluralism – from a discourse-theoretical standpoint. Here I assume a principle that I cannot discuss in detail, namely, that a regulation [content/output] may claim legitimacy only if all those possibly affected by it could consent to it after participating in rational discourses.”

“instead it is that they compromise elements of an independent and expressly political ideal that is focused in the first instance, on the appropriate conduct of public affairs – on, that is, the appropriate ways of arriving at collective decisions.” p. 20

“intuitive ideal … I which the justification of terms and conditions of association proceeds through public argument and reasoning among equal citizens.” P. 21

“The substantial features: need to decide on an agenda, propose alternative solutions to problems on the agenda, support these solution with reasons, and to conclude by settling on an alternative…. Requirements it sets on such a procedure… outcomes are democratically legitimate if and only if they could be the object of a free and reasoned agreement equals” p. 22

Although people reason in the first place form their perspective, they take on the deliberative point of use. These commitments require a ‘willingness to revise one’s understanding of one’s own preferences and convictions.” P. 23

On whether the deliberative requirements will motivate deliberators to present reasons as opposed to ‘preferences’: preferences on their own do not compel people to do x or y. “practice of presenting reasons will contribute to the formation of a commitment to deliberative resolution (and encourage concomitant values). Shape content of preferences and convictions as well. If I cannot offer convincing reasons, that gives me a reason to change my position. P. 24 This pushes people to focus on questions of the common good.

“the interests, aims, ad ideals that compromise the common good are those that survive deliberation.” P. 25

Another counter is that through reflexive equilibrium you will get 'one' appropriate proposal. That is, if there is agreement on a set of reasons that there should be one outcome (Peter). However, that is not the premise that one is working with in deliberative democracy: reasonable pluralism; context-dependence/change; the focus on creation vs. discovery all underscore the fact that we do not have an external omniscient reasoning that we can turn to. The whole theory is based on a premise that there are differences/ Cohen - 1997

“For that reason, the test for democratic legitimacy will be, in part, substantive—dependent on the content of outcomes, not simply on the processes through which they are reached.” p. 407

Cohen (1997)- importance of 'reasonable to all' as opposed in the general interest. The latter, through something like a utilitarian calculation could end up violating certain rights we consider very important.

It is important to notice a few things about Cohen's argument here: 1) the type of output he is talking about it minimal: whether certain negative freedoms will be violated. 2) he is doing the 'reasoning': although he is trying to show that the underlying norms of deliberative democracy limit the type of reasons that will be considered reasonable, he does not address a concern about whether they can be reasonable disagreement about this exact topic.

It is not about how deliberation can generate legitimate output - one that is emergent from 'the people.' : “liberties of the moderns.” Denying general freedom of expression (unrelated to political input) is not something that can be defended from the principles of inclusion/democracy. (Habermas has a more comprehensive understanding however). “…one element of that strategy: the need to protect inputs to a process of discussion. But as with religious liberty, so too, with expressive liberty: the deliberative view also ties protections to acceptable outcomes of a deliberative process, outcomes, that is, that can be justified given the requirement on finding reasons acceptable to others under conditions of reasonable pluralism.” P. 420

1997: Citizens have good reasons to reject a system of policy that fails to advance their interest at all. Connecting the equality of citizens limits the types of reasons that can be given: reasons that some are worth less, for example, is not reasonable

1997: "3. Rights of the ancients – rights to participation. (in reverse order)
The personal moral reasons that shape an individual’s perspective give her reasons to want to shape her society. If she does not have the right to bring forth those reasons, then you are denying her equal standing – the background conditions of citizens as equals. 2) the reasons one gives for discriminating against one or other group in terms of political rights will likely depend on reasons that are not going to be considered acceptable nor acceptable from the perspective of the person

“an entitlement to respect is something a norm must earn; it is not part of what is said when we identify it as legally valid.” P. 2191
Raz’s authority argument: figuring out the content of the law itself is not part of determining whether one can do better by treating it authoritatively. There must be something about the origin or procedure that generates this.

“explore the possibility that majority decision commands our respect precisely because it is the one decision-procedure that does not, by some philosophical subterfuge, try to wish the facts of plurality and disagreement away…. It is a demand for a certain sort of recognition and, as I said, respect – that this, for the time being, is what the community has come up with and that it should not be ignored or disparaged simply because some of us propose, when we can, to repeal it.” P. 2195-6
Not just enactment of the majority, but something that stand for the time being in the name of the whole community. P. 2197

If you respect differences, then you necessarily must recognize that it is a procedural issue. Different from Rawls who wants to use an evaluative criteria (justice) to evaluate the outcome.

Majority decision – gives recognition to equal standing, each vote is equal such that it matters where the halfway point is. Anyone’s reason is not conclusive, but it still counts in favour of X.

“Society needs a mechanical procedure precisely because resource to a substantive procedure would reproduce not resolve the decision-problem in front of us. P. 2213. The reasons supporting majority decision are reasonable in circumstances of politics.

… “will not be convinced then that equal respect entails majority decision, for he will know that majority decision can lead to outcomes which do not appear to give individuals the substantive respect to which they are entitled.

p. 2197 "once voted on in Parliament, it is entitled to whatever respect that communitarian status confers on it, without regard to - indeed bracketing away - the substantive merits of its content."

It is essentially on liberal and communitarian grounds that it deserves respect: it respects the equality of all each vote is equal; it also respects that we want to live together. It acknowledges dissent and disagreement - a different form of respect. Waldron does not really go into how people should reason, just that the procedure safeguards equality essentially. You want to explain why, if you disagree, you should still respect the decision of the majority - it is because a truly equal majority decision-procedure respects each, including yours while recognizing disagreement.