Christopher Zurn

This paper argues that, according to a specific conception of the ideals of constitutional democracy - deliberative democratic constitutionalism - the proper function of constitutional review is to ensure that constitutional procedures are protected and followed in the ordinary democratic production of law, since the ultimate warrant for the legitimacy of democratic decisions can only be that they have been produced according to procedures that warrant the expectation of increased rationality and reasonability. It also contends that three desiderata for the institutionalization of the function of constitutional review follow from this conception: structural independence, democratic sensitivity and the maintenance of legal integrity. Finally, evaluating three broadly different ways of institutionalizing constitutional review - solely in appellate courts, in deliberative constitutional juries of ordinary citizens and in a combined system of constitutional courts and civic constitutional amendment fora - it argues that the third arrangement would perform best at collectively fulfilling the sometimes antithetical desiderata

Recent work in democratic theory has seriously questioned the dominant pluralist model of self-government and recommended the adoption of a ‘deliberative’ conception of constitutional democracy. With this shift in basic political theory, the objection to judicial review, often voiced in jurisprudential theory, as an anti-democratic instance of paternalism merits another look. This paper argues that the significant differences between four recent theories of constitutional review—put forward by Ely, Perry, Dworkin, and Habermas—are best understood as arising from different positions taken on two cross-cutting distinctions that have been inherited from Locke and Rousseau: democratic processes as aggregative versus deliberative, and democratic legitimacy as substantive versus procedural. A reconstruction and critical evaluation of the four theories of judicial review, with special emphasis on their underlying theories of constitutional democracy, yields a set of criteria for adequate accounts of democratic processes, democratic legitimacy, and their relation to judicial review. I argue that the best understanding of constitutional review is yielded by Habermas’s theory because it combines a conception of popular sovereignty in terms of the collective process of citizens’ deliberative attempt to institutionalize the general will through law, with a resolutely proceduralist conception of democratic legitimacy. However, I also argue that some of the specific proposals Habermas makes concerning the institutionalization of constitutional review in an independent, non-accountable judiciary and the scope of duties for such a body need to be modified in the light of his overriding commitments to participatory deliberative processes and procedural legitimacy.

Theorists of public reason such as John Rawls often idealize constitutional courts as exemplars of public reason. This paper raises questions about the seduction and limits of analogies between theorists’ account of public reason and actual constitutional jurisprudence. Examining the work product of the United States Supreme Court, the paper argues that while it does engage in reason-giving to support its decisions—as the public reason strategy suggests— those reasons are (largely) legalistic and specifically juristic reasons—not the theorists’ idealized moral-political reasons on matters of fundamental principle. But if constitutional courts do not engage on matters of fundamental principle, then a public reason strategy for assuaging democratic worries about judicial review would no longer be open: prominent liberal and deliberative democratic theorists could no longer point to the alleged superiority of constitutional courts to speak in the name of, and for, the people’s shared political principles. The paper extends beyond the U.S. case study by pointing to three institutional factors explaining the disanalogy between what some constitutional courts do and what public reason theories require them to do. It concludes with considerations about whether the public reason strategy might be more successfully applied to international courts.

Are we witnessing progress or regress in the recent increasing popularity and electoral success of populist politicians and parties in consolidated democratic nations? ... Is the innovative use of popular referendum in Great Britain to settle fundamental constitutional questions a progressive or regressive innovation? ... Similarly, is the increasing use of constituent assemblies to change constitutions across the world evidence of progress in democratic constitutionalism, or, a worryingly regressive change back toward unmediated popular majoritarianism? ... This paper reflects on some of the perils and promise of framing such questions with the conceptual couplet of progress and regress. It considers four compelling critiques of the use of ‘progress’ and its cognates in sociopolitical theory, as well as arguing that such concepts are nevertheless ineliminable for our normative theories. The paper concludes by suggesting that we can avoid the most serious problems by employing only conceptions of political progress and regress that are piecemeal, pragmatic, and processual.

This paper recommends recognition theory as one useful tool in the diagnosis of the recent rise in two pathologies of democracy, specifically the surging success of populist politicians and parties across many consolidated democracies, and, increases in the social polarization of citizens along partisan lines in several of those nations. It begins by defining and discussing the resurgence of populism in two forms, before turning to a discussion of the concurrent increase in partisan polarization that is puzzlingly unconnected to policy polarization. It then argues that recognition theory does a better job explaining these phenomena than alternative approaches by tying together social changes, moral psychology, and politically powerful social dynamics of identity, in a way that is sensitive to historical changes in recognition orders. It also argues that recognition theory provides an understanding of the specific political psychology supporting populism and polarization that does not treat supporters as mere passive victims of blind emotion, but rather as motivated by distinctly moral experiences of misrecognition and as making claims for recognition to the broader society. In the end, the paper suggests that a central causal role behind populism and polarization must be assigned to responses to a changing recognition order, especially where those enter into a fateful reinforcing causal dynamic with other economic and political causes, potentially turning the engaged use of democratic political freedom into its opposite.

Splitsville USA argues that it’s time for us to break up to save representative democracy, proposing a mutually negotiated, peaceful dissolution of the current United States of America into several new nations. It begins by examining the United States’ democratic predicament, a road most likely headed for electoral authoritarianism, with distinct possibilities of ungovernability and violent civil strife. Unlike others who share this diagnosis, Zurn presents a realistic picture of how we can get to reform and what it would involve. It is argued that “Splitsville” represents the most plausible way for American citizens to continue living under a republican form of government. Despite recent talk of secession and civil war, this book offers the most extensive treatment yet of the issues we need to think through to enable a peacefully negotiated political divorce.

Many have claimed that legitimate constitutional democracy is either conceptually or practically impossible, given infinite regress paradoxes deriving from the requirement of simultaneously democratic and constitutional origins for legitimate government. This paper first critically investigates prominent conceptual and practical bootstrapping objections advanced by Barnett and Michelman. It then argues that the real conceptual root of such bootstrapping objections is not any specific substantive account of legitimacy makers, such as consent or democratic endorsement, but a particular conception of the logic of normative standards—the determinate threshold conception—that the critic attributes to the putatively undermined account of legitimacy. The paper further claims that when we abandon threshold conceptions of the logic of legitimacy in favor of regulative-ideal conceptions, then the objections, from bootstrapping paradoxes to the very idea of constitutional democracy, disappear. It concludes with considerations in favor of adopting a more demanding conception of the regulative ideal of constitutional democracy, advanced by Habermas, focusing on potentials for developmental learning

This chapter is a critical review of Amy Allen's book The Politics of Our Selves. It briefly reconstructs some of the book's impressive achievements: articulating a synthetic account of gendered subjectivity that accounts for both subjection and autonomy; imaginatively integrating poststructuralist and communicative theories; and, furthering important new interpretations of Butler, Foucault, and Habermas. It also raises critical concerns about Allen's project: her specific conception of autonomy and its justification; her suspicions of the notion of historical progress; her psychological explanation of the continuing power of pernicious norms of gendered subjectivity; the usefulness of psychoanalysis for critical social theory; and, the role of cultural, structural, and materialist explanations and political strategies.

In this dissertation, I argue that the development of individual identity should be understood in terms of the intersubjective acquisition of diverse forms of interactive competence, that such a conception can allay concerns about the historical, ethical, and institutional specificity of the structures of personal identity, and that such a conception plays an important role in critical social theory's project of a substantive diagnosis and assessment of social pathologies in complex, pluralistic societies. ;I begin by clarifying the intersubjectivist conception of individual development put forward by Jurgen Habermas in terms of the progressive acquisition of various interactive competences. On this largely neo-Kantian model, autonomy is defined as an agent's capacity for rational accountability: an autonomous person is prepared to defend, at ever higher levels of abstraction and reflexivity if need be, the meaningfulness and validity of her or his speech and actions as based upon defensible reasons rather than contingently given or taken for granted meanings, truths, conventions, values, etc. I argue that ontogenesis should be understood, at a formal and structural level, as a process of developing the different forms of competence required for communicative interaction. ;I then reconstruct Charles Taylor's arguments for the importance of ethical ideals and evaluative modes of judgment in the formation of individual identity, and counterpose his hermeneutic conception to the more rationalist model put forward by Habermas. Treating issues of strong evaluation, ethical motivation, constitutive goods, narrative self-understanding, and authenticity, I argue that many of the concerns that Taylor raises should be understood as enrichments to, rather than contextualist criticisms of, Habermas's model of interactive competence. I also argue, however, that Taylor's positions concerning authenticity and the scope of ethical reasoning need to be modified. ;Finally, I turn to a consideration of whether Taylor's theses concerning the diversity of forms of ethical identity available in modern society pose insurmountable challenges to Habermas's diagnosis and evaluation of social pathologies. I argue that, although underdeveloped, the latter has sufficient theoretical resources with which to account for the contextual aspects of the self while maintaining a robust program for normative social critique.

This paper develops a normative framework for both conceptualizing and assessing various institutional possibilities for democratic modes of constitutional change, with special attention to the recent ferment of constitutional experimentation. The paper’s basic methodological orientation is interdisciplinary, combining research in comparative constitutionalism, political science and normative political philosophy. In particular, it employs a form of normative reconstruction: attempting to glean out of recent institutional innovations the deep political ideals such institutions embody or attempt to realize. Starting from the assumption that contemporary constitutional democracies are attempting to realize the broader ideals of deliberative democratic constitution (ideals outlined briefly in the first section), the paper proposes an evaluative framework, comprised of six criteria, for assessing various mechanisms of constitutional change. It argues that democratic forms of constitutional change embody six distinct ideals—operationalizability, structural independence, democratic co-authorship, political equality, inclusive sensitivity, and reasons-responsiveness—and that these ideals can be used to gauge the normative worth of different mechanisms for carrying out such change. The framework is developed with reference to recent constitutional developments (e.g., in Venezuela, South Africa, Columbia, Bolivia, and Iceland) highlighting distinct criteria and showing how they appear to capture the general direction of institutional innovation. The paper conjectures that the set of six criteria yield the best normative reconstruction of the crucial ideals embodied in the constitutional change mechanisms of contemporary constitutional democracies, and so, ought to be used for purposes of evaluating institutional design proposals.

This paper critically evaluates institution reconstructing critique—the central methodological strategy employed by Axel Honneth in his latest book Freedom’s Right designed to articulate and justify the normative standards employed by a critical theory of the present. It begins by considering, at a general level, the promises and limits of three ideal-typical normative methodologies of social critique: first principles critique, intuition refining critique, and institution reconstructing critique. It then turns to the details of Honneth’s history and diagnosis of market spheres of society as one key example of institution reconstruction critique. This leads to a consideration of some challenges facing this kind of critique, paying particular attention to problems posed by alternative reconstructions of the same data. It argues, in particular, that there is a troubling indeterminacy in this reconstruction, since alternative teleologies yield substantively different normative analyses of capitalism, and hence substantively different social critiques. In conclusion, the paper suggests some methodological remedies which might need to be adopted in order to make good on the promise of institution reconstructing critique while avoiding some of its most challenging problems.

Aside from the systematic theory of recognition, Honneth’s work in the last decade has also centered around a less commented-upon theme: the critical social theoretic diagnosis of social pathologies. This paper claims first that his diverse diagnoses of specific social pathologies can be productively united through the conceptual structure evinced by second-order disorders, where there are substantial disconnects, of various kinds, between first-order contents and second-order reflexive understandings of those contents. The second major claim of the paper is that once we understand social pathologies as second-order disorders, it becomes apparent that critical social theory must do more than accurately identify and explicate these disorders at the phenomenological and action-theoretic levels. It must further engage in insightful sociological explanations of the social causes of those pathologies in order to further the prognostic and therapeutic tasks implied by the aim of developing a social theory with emancipatory intent. The paper argues that the identificatory and explicative components of diagnostic social theory have been fulfilled by Honneth to a much greater degree than the latter components of explanation, prognosis and therapy.

With his insightful and wide-ranging theory of recognition, Axel Honneth has decisively reshaped the Frankfurt School tradition of critical social theory. Combining insights from philosophy, sociology, psychology, history, political economy, and cultural critique, Honneth’s work proposes nothing less than an account of the moral infrastructure of human sociality and its relation to the perils and promise of contemporary social life. This book provides an accessible overview of Honneth’s main contributions across a variety of fields, assessing the strengths and weaknesses of his thought. Christopher Zurn clearly explains Honneth’s multi-faceted theory of recognition and its relation to diverse topics: individual identity, morality, activist movements, progress, social pathologies, capitalism, justice, freedom, and critique. In so doing, he places Honneth’s theory in a broad intellectual context, encompassing classic social theorists such as Kant, Hegel, Marx, Freud, Dewey, Adorno and Habermas, as well as contemporary trends in social theory and political philosophy. Treating the full range of Honneth’s corpus, including his major new work on social freedom and democratic ethical life, this book is the most up-to-date guide available. _Axel Honneth_ will be invaluable to students and scholars working across the humanities and social sciences, as well as anyone seeking a clear guide to the work of one of the most influential theorists writing today

Christopher F. Zurn - Perspectives on Habermas - Journal of the History of Philosophy 40:2 Journal of the History of Philosophy 40.2 274-275 Book Review Perspectives on Habermas Lewis Edwin Hahn, editor. Perspectives on Habermas. New York: Open Court, 2000. Pp. xiv + 586. Paper, $29.95. This collection of essays on the wide-ranging body of thought produced by Jürgen Habermas over the course of close to fifty years represents a significant lost opportunity. Although originally planned as a volume in the Library of Living Philosophers series, in 1999 Habermas pulled out of the project because, as Hahn tells us, "of other events in his life" . Volumes in this series have typically provided unique and valuable resources: not only quality secondary essays by leading contemporary philosophers, but essay-by-essay responses by the featured philosopher, as well..