Introduction
Majority decision-making, commonly regarded as the default mechanism among equals, raises persistent questions regarding its democratic worth. One key aporia within liberal constitutionalism lies in how this mechanism can be justified as democratic when it generates heteronomous effects for dissenting or numerically marginalized groups. The problem of ‘persistent minorities’ (Christiano Reference Christiano1994; Abizadeh Reference Abizadeh2021), when viewed through the lens of the ‘all-affected’ principle (Young Reference Young2000; Goodin Reference Goodin2007; Frazer Reference Frazer2014; Wilson Reference Wilson2022), poses a fundamental challenge to the very foundations of democratic decision-making. Majoritarian mode of will-formation is chiefly faulted for elevating outcomes per se above the demands of democratic equality (Christiano Reference Christiano1994). This article promises to establish a connection between this problem and the concept of constitutional heteronomy, rooted in Kantian constitutional thought and subjected to internal critique by the author (El Maslouhi Reference El Maslouhi2025). Most substantively, it seeks to examine how effectively republican and deliberative models of democracy – two of the most influential strands of democratic theory – have confronted majoritarianism’s central problem.
Constitutional heteronomy, which I conceptualize as the search for a viable balance between autonomy and heteronomy, foregrounds a delicate and possibly undecidable aporia: How can majority rule, the default mechanism of decision-making among democratic equals, be structured so as to safeguard at once private autonomy, understood as individual self-determination, and public autonomy, understood as the capacity for collective, mutual self-limitation? The notion of constitutional heteronomy serves as a conceptual device for interrogating this issue. Heteronomy, a fundamental yet underexplored category has long been dismissively reduced to the ‘cursed’ counterpart of autonomy: a form of alien rule (Kant Reference Kant2002: 62–3), the discourse of the other (Castoriadis Reference Castoriadis1997: 109), the coercive social determination of the subject (Adorno Reference Adorno2000, Reference Adorno2004) or as the displacement of individual moral agency onto power-assisted agencies (Bauman Reference Bauman1993: 29). Yet, once embedded within a constitutional framework wherein the ‘private’ and the ‘public’ unavoidably collapse into one another, heteronomy assumes a deeper moral significance and, as such, warrants recognition as integral to the very idea of autonomy. Prominent philosophers (Lévinas Reference Lévinas1997; Kant Reference Kant2002; Westphal Reference Westphal2017) have taken this moral significance seriously. In Levinas’ view, Heteronomy is autonomy’s hidden foundation. The ‘entry of the third party’ and the subject’s resolve to ‘divest the ego of its imperialism’ constitute the condition for autonomy (Lévinas Reference Lévinas1997: 160, 121). ‘The presence of the Other, a privileged heteronomy, does not clash with freedom but invests it’ (Lévinas Reference Lévinas1991: 88). That’s because the ‘rights of man’ are nothing other than the ‘rights of the other’ (Lévinas Reference Lévinas and Lévinas1993: 116).Footnote 1
Levinas’ and Westphal’s respective construal of heteronomy can be read alongside Kant’s categorical imperative of ‘universalizability’ (Kant Reference Kant2002: 37). A law that does not possess equal, that is, universal applicability, fails to qualify as law and instead amounts to arbitrariness. The universalization test, rooted in a duty-based ethics grounded in respect for persons and fairness, ultimately presupposes an act of ‘self-binding’ through which heteronomy is reflectively internalized. To rephrase Kant, genuine autonomy entails a form of self-imposed heteronomy. As Kant (Reference Kant2006: 112) himself argues:
one must emerge from the state of nature in which each follows only his own thoughts and unite oneself with all others (with whom one cannot avoid interacting) in subjecting oneself to public external coercion through laws, and hence enter into a condition in which what is to be recognized as his own is legally established and secured by sufficient power (a power that is not his own, but rather an external one), which is to say, that one should, above all, enter into a civil condition.
While Kant opposes heteronomy to autonomy at the transcendental juncture of his moral philosophy, his pragmatic engagement with constitutional modernity – particularly his moral account of autonomy as self-legislation, whereby the law binds the will internally rather than externally – opens the possibility of reinterpreting the universalizability principle as a form of ethically mediated heteronomy. Kant’s deployment of heteronomy thus operates on a dual meaning. The first, referred to in this article as inhibitive, concerns those instances in which ‘the will does not give the law to itself’ (Kant Reference Kant2002: 62). Inhibitive heteronomy, then, marks the conceptual antithesis to the principles of autonomy and self-determination, designating a state of subjection to rules or moral frameworks that are not of one’s own making. The second usage of heteronomy, hereafter termed affirmative, points to the subject’s ethical responsibility to universalize its claims to evaluate their moral and rational standing (Kant Reference Kant2002: 37). While inhibitive heteronomy concerns the constraints on the individual’s private autonomy, affirmative heteronomy – least discussed yet arguably the most insightful – requires individuals to self-limit if they are to cultivate their capacity for public autonomy.
In so doing, Kant’s nuanced account of heteronomy contributes a productive framework for navigating private and public autonomy. His insights in this connection at once delineate and mediate the tension between personal autonomy – that is, freedom from paternalism and free pursuit of one’s own happiness (Kant Reference Kant2006: 45) – and moral autonomy, understood as the universalized concern for the ends of all rational persons (Kant Reference Kant1991: 56).Footnote 2 That is, individuals must retain their personal agency so as to affirm their standing as equal and morally autonomous beings, while at the same time committing to the universalization of coercive limits on their external behavior. What Jeremy Waldron (Reference Waldron1996: 1544) aptly terms the ‘burden of Kantian autonomy’, further conceptualized by Habermas (Reference Habermas1995: 12; Reference Habermas1996a: 104) under his notion of the ‘co-originality of private and public autonomy’, closely aligns with the central argument of constitutional heteronomy developed in this article.
As I conceive it, the legitimacy of democratic will-formation depends on meeting two irreducible standards: On the one hand, decision-making structures must be freed from all forms of inhibitive heteronomy. This presupposes the actual fulfillment of the standard of equal standing – as instantiated in the ‘one person, one voice’ principle – which requires the systematic elimination of bias with respect to citizens’ equal capacity for political judgment. On the other hand, decision-making structures must institutionalize mechanisms for mediating intersubjective sense-making in ways that foster affirmative heteronomy. Only under these two conditions can majoritarian will-formation move beyond truncated aggregation toward a substantive form of aggregation capable of yielding epistemically and morally informed outcomes.Footnote 3
For political will-formation to aspire toward this prospect of substantive aggregation, it must incorporate a duty of self-limitation on the part of all participants, particularly those in the majority. It is this reflectively assumed burden, I contend, that vindicates the deliberative form of aggregation over the purely majoritarian one. Democratic theories – egalitarian strands in particular – remain however deeply divided over whether majority rule helps generate epistemically and morally informed collective decisions. A full engagement with the relevant literature falls outside the scope of this inquiry, as egalitarianism brings together a diffuse and distinctly non-monolithic range of theoretical strands. While most egalitarians concede, with varying degrees of conviction, that majority rule constitutes an ineliminable decision-making mechanism among democratic equals, they differ in their confidence in its capacity, on its own, to secure genuinely equal political voice. The competing views may be broadly categorized into three distinct accounts – liberal, republican and deliberative egalitarianism – situated on a spectrum from minimal to maximal vindication.
Liberal egalitarianists treat pure majoritarianism with skepticism. Majority procedure carries no self-legitimating authority, which must instead derive from a substantive, rights-based understanding of political equality (Lijphart Reference Lijphart1977; Dworkin Reference Dworkin1999; Rawls Reference Rawls1999: 198–99). As Lijphart’s (Reference Lijphart1977: 41) consociational model of democracy cautions, ‘[t]he practical effect of majority rule … is to exaggerate the representation and influence of the majority’. Where electoral unrestrained majorities coincide with enduring religious, linguistic, ethnic or ideological cleavages, alternation in power may become unlikely, transforming majority rule into the permanent domination of other segments by a single group. Less dismissive, deliberative egalitarianism offers a qualified endorsement of majoritarianism, grounding its legitimacy on the inclusive and equal participation of all in collective reasoning. For Gutmann and Thompson (Reference Gutmann and Thompson1996: 28), majority rule outcomes are deemed legitimate solely by procedural fairness. They retain an internal relation to the search for truth only insofar as the decision reached by the majority represents a caesura in an ongoing rational deliberation (Habermas Reference Habermas1996a: 179). Republican egalitarians, by contrast, maintain that majority procedure is sufficiently self-sustaining to dispense with any effort toward substantive engagement. Their conception of political equality and freedom as non-domination (Pettit Reference Pettit1997: 51; Bellamy Reference Bellamy2007: 145; Bellamy Reference Bellamy, Delanty and Turner2011a: 164) leads them to foreground moral disagreement as the central axis of their argument: If all are equals and disagree, then majority rule is the fairest decision procedure. This ‘non-domination’ perspective proves, however, insufficiently alert to the heteronomous implications of majority rule. It exhibits a form of ‘unreflective decisionism’, privileging decisional outcomes over fairness and the entrenchment of individual freedom over meaningful civic engagement.
In my view, the aporia of constitutional heteronomy unfolds along the fault line between a republican conception grounded in non-domination that risks atomizing the citizenry and a deliberative aspiration to rational consensus that risks abstracting from enduring moral disagreement. A primary contention, in this regard, is that deliberative majoritarianism, particularly within Habermas’ framework, appears to offer a more normatively grounded theoretical account than its republican counterpart. Habermas’s deliberative reformulation of majoritarianism transcends the atomism of the non-domination perspective. Discourse ethics locates the legitimacy of majority decisions in rational justification, imposing procedural and moral constraints on political will-formation. Majority decisions are legitimate only insofar as the participants involved share a reciprocal disposition toward consensus-seeking and moral self-limitation.
A second, yet equally consequential, contention of this article is that deliberative majoritarianism can be justified only on transcendental and ethical grounds. Deliberative theorists (Habermas Reference Habermas1996a: 475; Cohen Reference Cohen1994: 590; Gutmann and Thompson Reference Gutmann and Thompson1995: 88, Reference Gutmann and Thompson1996: 12) do acknowledge the persistence and even the intractability of moral disagreement. They nonetheless fail to provide a procedurally workable account of how rational discourse might meaningfully translate a plurality of value orientations into a unified collective standpoint. Looked at from this angle, republican decisionist argument regains significant justificatory force. As Waldron (Reference Waldron1999b: 54) underscores, the ability of Kant’s principle of universalizability to transform a ‘unilateral’ will into an ‘omnilateral’ one is not self-evident. Universalizability and publicity, as rational procedures, have only a transcendental dignity and are thus too abstract to settle concrete moral disagreement.
The constitutional heteronomy perspective promises to illuminate why many of the constitutive tensions of liberal constitutionalism persist unresolved. The delicate balance between public and private autonomy, democracy and constitutionalism, and popular sovereignty and human rights are not merely contingent contradictions awaiting doctrinal settlement; they are enduring tensions internal to the liberal constitutional project itself. This article contends that placing heteronomy at the forefront of democratic theory can ground a reconstruction of liberal constitutionalism beyond its entrenched autonomy-centered orientation. Thus conceived, the constitutional heteronomy perspective mediates between the rival absolutisms of individual and collective agency to create space for a more nuanced and reflective distribution of the burdens inherent in constitutional coexistence. The point, however, is not to construct a tabula rasa alternative to established theories, particularly republican and deliberative egalitarianism, which provide persuasive accounts of constitutional decision-making grounded in the normative ideals of self-legislation and democratic will-formation. Rather, the aim is to bring them into dialogue, confront their internal constraints and mobilize their insights to mediate the tension between private and public autonomy.
This article examines these tensions in two parts, evaluating the potential and limitations of republican and deliberative approaches to majority decision-making in satisfying the normative demands of constitutional heteronomy. Section “Republican majoritarianism” examines the republican claim, articulated most prominently by Waldron and Bellamy, that majority rule is sufficient, and perhaps the only viable means, to preserve the democratic ideal of deciding together as equals. The compelling need to adjudicate among conflicting moral judgments and the inevitability of disagreement render this mode not only effective but necessary. While this decisionist stance appears to conform to the first intent of constitutional heteronomy – mitigating inhibitive heteronomy – it falls short regarding the second requirement – fostering affirmative heteronomy. Republican majoritarianism relegates substantive aggregation to a merely dead-end endeavor, a doomed quest for consensus with little relevance to democratic decision-making.
Deliberative majoritarianism goes beyond this decisionist stance. Section “Deliberative majoritarianism” sets out to substantiate this by exploring how Habermas’s discourse theory attempts to reconceptualize the problem of constitutional heteronomy. His principled rejection of inhibitive heteronomy places him, as an initial commitment, in substantial proximity to the republican conception of political equality as non-domination. This is evident in his critique of what he regards as paternalistic forms of will-formation in liberal constitutionalism. More ambitiously, he (Reference Habermas1998: 138) insists that an ‘unencumbered’ citizenry sits uneasily with the prospect of public autonomy, which presupposes self-restraint and discursive engagement. From this emerges his enterprise of reconstructing majoritarian democracy along discursive lines. The ‘co-originality of private and public autonomy’ and ‘constitutional patriotism’ are key concepts for mediating divergent worldviews in increasingly divided polities.
Certainly, Habermas’ enterprise discloses a higher-order conceptual coherence when assessed against the normative demands of constitutional heteronomy. However, it is precisely this higher worth that is at the root of the limitations of deliberative majoritarianism. As many of Habermas’s feminist critics often argue, discourse theory moves too quickly from formal participation to democratic authorship. A constitutional settlement may be procedurally authorized by ‘the people’ and nevertheless remain heteronomous for subaltern groups. A unitary public sphere can entrench majority domination when unequal social power determines who speaks and who ought to be heard, which forms of speech count as reasons, what reaches the agenda and when deliberation is declared complete. Deliberative majoritarianism therefore raises not only issues of technicality but also risks of exclusion. The discussion highlights three key limitations in this context: First, deliberative majoritarianism gives scant regard to the empirical unequal distribution of communicative power among deliberating agents. Second, it overlooks how often participants are reluctant to exercise epistemic and ethical self-restraint. Third, it fails to account for the structural unfeasibility of substantive aggregation amid increasingly fragmented worldviews. This invites the question of whether the aporia of constitutional heteronomy, even in Habermas’ Kantian reformulation, is tractable at all.
Republican majoritarianism
Republicanism and majoritarianism emerged in tandem. Rousseau (Reference Rousseau2002: 229–30), as early as 1762, asserted that ‘[e]xcepting th[e] original contract, the vote of the majority always binds all the rest’. On his account, the general will, expressed by the majority, is always ‘right’, and, on that basis, commands the deference of the electoral minority. His American contemporary, Thomas Jefferson (Reference Jefferson1955: 442), evinced a similar commitment: ‘The will of the majority’, he wrote to Madison in 1787, ‘is in all cases to prevail’. Understandably, the republican ethos of the time, together with the progressive expansion of enfranchisement, appeared to nurture the confidence in majority rule.
Closer to our era, J.A.G. Griffith (Reference Griffith1979: 19), a central figure in the development of political constitutionalism, famously argued that ‘[t]he constitution is no more and no less than what happens politically … and the decisions of the majority in Parliament are the expression of that constitution’. Some of Griffith’s heirs, notably Richard Bellamy, recast this political reading of constitutionalism in a more explicitly republican register. This section explores the normative basis on which this constitutional tradition defends majoritarian democracy. I maintain that the claim of persistent disagreement as a rationale for unqualified majoritarianism ultimately devolves into a form of decisionism inadequate to address the tensions of constitutional heteronomy.
Majority rule, equal standing and disagreement
In republican theory, the core justification for majority rule as a means of deciding among equals rests not on purely technical grounds. Majority procedure, Waldron (Reference Waldron1999a: 108) argues, ‘may be a technical procedure which we have invented, but also a method that is morally respectable in a way that other technicalities and conventions might not be’. Beyond its value as a ‘successful technicality’, it has a genuine moral worth grounded in its respect for each citizen’s dignity and moral autonomy (ibid: 108–109). This should, however, not be mistaken for an essentialist view. Majority decision is merely a ‘conventional’ procedure whose merit rests neither on a ‘natural’ nor an inherently ‘democratic’ value (Waldron Reference Waldron2010: 1044).
The republican justification for majority rule, however, rests on the premise that political equality requires safeguarding every citizen’s equal right to disagree on moral questions. According to Waldron (Reference Waldron1999a: 107–108; Waldron Reference Waldron1999b: 154) and Bellamy (Reference Bellamy2007: 21), disagreement in moral and political matters, is not just possible but inevitable, making it the defining circumstance of politics. The inevitability of disagreement stems from our limited capacity both to identify a genuine normative theory of rights and justice and to secure general agreement on its validity (Bellamy Reference Bellamy2007: 3). To treat citizens as political equals is to acknowledge their right to dissent as an inherent procedural feature of democracy, and thereby to affirm the structural inseparability of disagreement and majority rule. Addressing the ‘circumstances of politics’, that is, the challenge of deciding collectively amid disagreement, naturally points toward majoritarianism, for it alone offers a procedural, or input, rather than a substantive, or output conception of equality of concern and respect (Bellamy Reference Bellamy2007: 212). Majority rule, as an adjudicative procedure, enables collective disagreement to be settled not because one view is intrinsically superior, but because it accords equal political standing to all participants. It represents the fairest way to make collective decisions, as it provides an impartial framework grounded not in the merits of the competing substantive views, but in the equal opportunity for all to shape the collective outcome. Hence, Waldron’s characterization of the majority principle as the natural expression of the ‘physics of consent’ (Waldron Reference Waldron1999b: 148).
Equality alone provides the foundation for fairness and legitimacy in collective decision-making (Bellamy Reference Bellamy2011b: 91). The right of everyone to have their claim deemed decisive implies that the fairest distribution is one that is as close as possible to equality. This makes majority rule the superior method, since it affords each individual’s vote a higher probability of being decisive than any competing decision-making procedure (Waldron Reference Waldron1999b: 160). For Waldron, majority-decision ensures individual equality in two ways: First, it admits disagreement as a constitutive feature of politics instead of demanding that some views be muted, downplayed or distorted to preserve an appearance of consensus. Second, it helps to smoothly navigate disagreement by preserving the dignity and self-respect of those who find themselves on the losing side of the policy struggle (Waldron Reference Waldron1999a: 109–111).
Republican theorists advance a political conception of majoritarianism that they claim outperforms competing majoritarian models, particularly judicial decision-making. Waldron (Reference Waldron2006: 1352) acknowledges that courts may assume a necessary protective function when legislative pathologies threaten ‘discrete and insular’ minorities. The case for judicial review nevertheless fails on two grounds. First, it displaces substantive disagreement about rights with collateral disputes over precedent, texts and interpretation. Second, insofar as democratic values matter, judicial review lacks political legitimacy: by vesting final authority in a small majority of unelected and unaccountable judges, it ‘disenfranchises’ ordinary citizens and offends the principles of representation and political equality (Waldron Reference Waldron2006: 1353). Along similar lines, Bellamy (Reference Bellamy2007: 238–239) submits that judicial review distorts the very notion of majority by favoring transient ideologically cohesive majorities to the detriment of broader and more diffuse ones. In doing so, it allows extremes to muster strategic blocking points that further undermines minority standing. Theories of judicial review are faulted for trivializing democracy by confining the right to vote to ‘interstitial policy issues that ha[ve] no compelling moral dimension’ (Waldron Reference Waldron1999a: 15). By contrast, majority principle takes this moral dimension seriously, vesting it in citizens or their elected representatives. On the republican account, majoritarian rule as operative within legislatures offers participants more impartial and fair-minded treatment than legalist, judicial method of decision-making. Not primarily because legislatures are only directly connected to the democratic chain of command, but because courts operate within a more constrained institutional forum than legislatures (Bellamy Reference Bellamy2011b: 92). On this view, judicial rights adjudication is said to introduce an unjustified bias into the democratic decision-making. If rights claims are taken to have already been weighed through the legislative process, any subsequent judicial review amounts to an illegitimate and distorting form of double-counting (Waldron Reference Waldron1999a: 12).
A further rationale for republican theorists’ defense of majoritarian will-formation lies in their rigorously proceduralist and anti-paternalist understanding of democratic politics. On this reasoning, seeking to rationally adjudicate between moral claims, that are ultimately irreducible normative preferences, is to risk deadlock. As individuals may indefinitely disagree about what counts as a rational or just decision, it becomes crucial to adopt a decision-making procedure in which all can participate, even amid their deepest disagreements (Waldron Reference Waldron1999b: 158). This means that the crux of democratic decision-making lies in securing agreement on what shall stand as the community’s decision, irrespective of which outcome is correct from a substantive point of view (Smith Reference Smith2001: 59; Eisgruber Reference Eisgruber2002: 36; Bellamy Reference Bellamy2007: 212).
In republican theory, this political and robustly proceduralist account of democratic politics culminates in the ideal of freedom as non-domination. It is this commitment to non-domination that, I argue, places republican majoritarianism among the few frameworks capable of meeting the challenge of inhibitive heteronomy. For Pettit (Reference Pettit1997: 51) and Bellamy (Reference Bellamy2007: 154–55), the elimination of domination – equated here with inhibitive heteronomy – requires more than mere non-interference; it demands the active and equal political control of all citizens over the processes that shape their lives. This thick conception of freedom and political equality nevertheless rests upon an implicit conception of citizens as detached and self-contained individuals rather than as civically embedded agents. This raises questions about republican majoritarianism’s ability to engage with the affirmative dimension of constitutional heteronomy.
Majority rule and the dead end of decisionism
Republican theory is premised on a conception of the constitutional community as an abstract civic whole of equal and undifferentiated individuals. Thus, equal freedom as non-domination proceeds from an interindividual conception of political relations rather than an intergroup one. This, in my view, substantiates why republicanism’s default reliance on majority rule sits uneasily with an intergroup conception of equal standing. As they operate in practice, majority procedures work in near-systematic ways to the structural disadvantage of persistent minorities, those who, for historical, demographic, or cultural reasons, consistently find themselves on the losing side. Within ordinary legislative politics, blind deference to the majority’s will may cause general laws to infringe upon the rights of specific social segments in matters the legislature has failed to notice (Eylon and Harel Reference Eylon and Harel2006: 991; Alexander Reference Alexander, Kautz, Melzer, Weinberger and Zinman2009: 167). Republican theorists do acknowledge this moral burden borne by persistent minorities, yet fail to draw the full normative consequences of that acknowledgment. The reason being that they mischaracterize majoritarianism as self-sustaining and self-correcting, thereby dispensing with safeguards for effective equality and inclusive preference aggregation.
Republican theorists do not object in principle to reasoned deliberation when it serves to facilitate majoritarian will-formation. Bellamy (2011: 92) goes so far as to ground his defense of legislatures, relative to courts, in their superior ‘deliberative qualities’. However, the core problem with consensus theories, Waldron contends (Waldron Reference Waldron1999a: 163), is their failure to admit that, in politics, the very criteria of reasonableness are themselves matters of disagreement. That is, these theories tend to overidealize politics on the philosophy-seminar model, a courteous exchange among like-minded gentlemen who share implicit understandings, avoid disagreement and concentrate on common ground (Waldron Reference Waldron1999a: 70).Footnote 4 Disagreement and the need for a vote elicit a ‘sense of distaste’ (Waldron Reference Waldron2014: 1728). They are seen as evidence of incomplete or politically unsatisfactory deliberation, a failure dictated by deadlines, practicalities, the ignorance or invincible prejudices of some or all parties (Waldron Reference Waldron1999b: 151–52). In a nutshell, deliberation by itself cannot confront the complexities inherent in democratic decision-making. Not only does it often fail to achieve consensus – its very telos – but it can also sharpen existing disagreements (Waldron Reference Waldron2014: 1729). Of even greater concern is that it may collapse into mere ‘logrolling’: ‘you support my self-interested proposal and I will support yours’ (Waldron Reference Waldron, by and Slye1999c: 213). The majority procedure relieves preference holders from the need to engage in such complacent exchange. The need for majority support is what makes participants take the interests of others into account in their proposals (Waldron Reference Waldron, by and Slye1999c: 213).
The difficulty is that republican majoritarianism appears to neglect the central aim of deliberative will-formation. Collective decision-making is primarily a matter of persuasion and the narrowing of epistemic gaps rather than a mere exercise in tallying who agrees and who disagrees (Christodoulidis Reference Christodoulidis2001: 396). For the persistent challenge following every majority decision is how those in the minority can come to regard the will of the victorious majority as legitimately binding (Christodoulidis Reference Christodoulidis2001: 396). To put it another way: How can the losers be stopped from opting out or seceding? In response to this potential, indeed highly likely, challenge, Waldron (Reference Waldron1999b: 134) offers little more than the ‘ethical’ exhortation not to secede and to do one’s part to keep the body together. Democratic decision-making presupposes preference holders from diverse persuasions. While disagreement is inevitable, as republicans acknowledge, shared public autonomy requires participants to persuade others that their preferred solutions serve the common good. At the very least, this presupposes a shared interest in seeking consensus. Republican theorist Philip Pettit captures this insight by foregrounding the possibility of accommodating majority rule and consensus. Majority rule can serve as an effective path to consensus, provided there are strong epistemic grounds for believing that the majority judgment is sound. Pettit (Reference Pettit2006a: 159; Reference Pettit2006b: 179) refers to this as the ‘Condorcetian route to consensus’, which amounts to deference to the majority view out of epistemic respect, even where that majority is not particularly large.
Nevertheless, it is republican majoritarianism’s hollow proceduralism that impedes a serious engagement with epistemic consensus, drawing it closer to decisionism and further from the prospect of affirmative heteronomy. Unlike Habermasian ‘substantive proceduralism’ (Bellamy Reference Bellamy2006: xxxiv; Bellamy Reference Bellamy2007: 172), republican theorists remain wedded to disagreement and to the need to bring it to closure. The ideal of non-domination tends to privilege, and occasionally fetishize, decisional procedures, even when doing so may hinder mutual recognition among citizens and isolate them from one another. Such a fixation on disagreement is, in certain respects, reminiscent of Hobbes’ decisionist posture, to which Waldron (Reference Waldron1999a:114) and Bellamy (Reference Bellamy2007: 55) allude, albeit with important qualifications.Footnote 5 A similar affinity can be discerned with Schmitt’s decisionism, where the validity of a decision hinges not on substantive justification but on the authority deciding and the method followed (Schmitt, Schwab, and Strong Reference Schmitt, Schwab and Strong2005: 30; Schmitt Reference Schmitt2008: 64). The following rationale better captures how republican theory justifies its decisionist commitment to majority rule:
[A]n account of majority-decision cannot itself explain the authority of legislation … That explication must come primarily from our sense of the moral urgency and the importance of the problems that is necessary for us to address – the things that (morally) need to be done and must be done by us, in our millions, together, if they are to be done at all
(Waldron Reference Waldron1999a: 117).While a decisionist approach to democratic decision-making may be justified on various grounds, it can hardly qualify as an earnest attempt to confront the challenge of affirmative heteronomy. The ‘ubiquity of disagreement’ (Christiano Reference Christiano2000: 516) in Waldron performs much the same obsessive function as, and has similar analytical implications to, Hobbes’ fear of anarchy (Hobbes Reference Hobbes1998: 235). The crucial difference between the two is that, in Hobbes, freedom from such an obsession can only be achieved through the denial of the individual’s self-sovereignty, namely inhibitive heteronomy (Frost Reference Frost, Coole and Frost2010: 160). Republican theorists’ decisionism, by contrast, rests on a concern to transcend disagreement.
In some respects, the decisionist logic underlying moral disagreement eventually interrogates the very foundations of republicanism as a democratic model of collective decision-making. Disagreement is treated as a condition to be overcome, whereas the very logic of the ‘circumstances of politics’ and the demands of civic integration render it difficult to dispense with. Mouffe’s (Reference Mouffe2000: 102–4) agonistic pluralism captures this insight particularly well: the prime task of democratic politics is not to eradicate antagonism but to domesticate it into agonism. The aim, therefore, is to turn the ‘struggle between enemies’ into a ‘struggle between adversaries’, which requires providing channels through which collective passions will be given ways to express themselves. Democracy derives its vitality from this ‘vibrant clash’ of political positions. The capacity of majority rule to democratically bring disagreement to closure is only interstitial, since disagreement has a persistent tendency to re-emerge in the wake of every decision, as republican theorists acknowledge (Bellamy Reference Bellamy2007: 93). On this view, a robust sense of public autonomy requires the active engagement of disagreement rather than the passive accommodation of its recurrent resurfacing within the political sphere – at times through extra-institutional means including exit, disloyalty (Gerken Reference Gerken2013)Footnote 6 and secession (Mueller Reference Mueller, Griffiths, Pavković and Radan2023).
Deliberative majoritarianism
The established fact that people’s opinions evolve in the course of deliberation (Barabas Reference Barabas2004; Hansen Reference Hansen2004; Gastil and Dollinger Reference Gastil and Dollinger2010) grants epistemic consensus theories advantage in sustaining affirmative heteronomy. This holds because the purpose of affirmative heteronomy extends mere ‘opinion polling’ to encompass ‘opinion formation’ through deliberatively supported decision-making. As Fishkin (Reference Fishkin1995: 45) explains, whereas an ordinary poll aims to capture ‘what the public thinks’, a deliberative opinion poll is about modeling ‘what the public would think’, if it were accorded the opportunity for shared sense-making.
It is this opportunity that lies at the heart of deliberative majoritarianism. The discussion will center on Habermas, the paradigmatic deliberative constitutionalist par excellence. Less for anchoring the legitimacy of majoritarian politics in the epistemic quality of deliberative process than for squarely confronting, along neo-Kantian lines, the problem of constitutional heteronomy. Indeed, Habermas (Reference Habermas1996a: 97) stands virtually alone among deliberative theorists in his sustained engagement with the autonomy–heteronomy nexus, which he considers to have profoundly informed our normative consciousness. Rather than dismissing heteronomy outright, as many of his contemporaries did,Footnote 7 he sought to bring it into reflective alignment with autonomy, urging its fuller recognition as integral to the legitimacy of democratic will-formation.
This section first investigates whether Habermas’ autopoietic and dialogical model of political will-formation, as articulated in his discourse theory of law and democracy, allows for a more adequate mediation between private and public autonomy. It then turns to the question of how far his deliberative reconstruction of majoritarianism meaningfully equips democratic will-formation to confront the aporia of constitutional heteronomy. The section concludes by critically examining some limitations of Habermas’ framework.
A discourse theory framework for constitutional heteronomy
How does Habermas structure his extensive conceptual and normative framework to confront the problem of heteronomy in the modern constitutional state? Habermas (Reference Habermas1996a: 239; Honig Reference Honig and Thomassen2006: 162) positions himself as standing apart from, while synthetizing elements of, liberal and republican conceptions of constitutional democracy. To chart an independent course between these two competing paradigms, he developed a discourse theory of law and democracy alongside a constellation of normative categories, many of which are especially pertinent to the analytical needs of constitutional heteronomy. Discourse theory’s response to inhibitive heteronomy proceeds through three mutually reinforcing claims: the principle of equal standing, an anti-paternalist account of law and the autopoietic, self-referential character of constitutional decision-making. According to Habermas, the principle of equal standing, variously articulated as ‘equal consideration’ (Habermas Reference Habermas1996a: 177, Reference Habermas1998: 136) ‘equal concern and respect’ (Habermas Reference Habermas1996a: 203; Reference Habermas2001a: 94) or ‘civic equality’ (Habermas Reference Habermas2004: 15) is conceptually intertwined with the idea of self-constitution (Habermas Reference Habermas1996a: 384). This claim attests not only to his egalitarianist orientation but, more fundamentally, to his view that the principle of equal standing enjoys anteriority, indeed, primacy over the very outcomes of any constituent process. As he himself puts it (Habermas Reference Habermas1996a: 384), ‘constitutional rights and principles merely explicate the performative character of the self-constitution of a society of free and equal citizens’. If human rights are not to be perceived as a merely paternalistic grant – and hence as a form of inhibitive heteronomy – the principle of equal standing must remain operative beyond the post-constituent stage. Because neither human rights nor democracy can be sufficiently self-reflexive on their own, it is their common grounding in political equality that drives them to seek mutual support (Habermas Reference Habermas1996a: 128).
Habermas’s concern with mitigating forms of inhibitive heteronomy likewise finds expression in his anti-paternalistic account of law. His pursuit of a post-conventional, discursive justification of morality and law led him to envision constitutionalisation as an open-ended, self-correcting process free from imposed guidance. This first obliges theory-makers to exercise epistemic self-restraint by deferring to citizens’ self-referential agency. Theory-makers therefore have a duty to deploy their ‘critical force’ by resisting both the ‘uncritical affirmation of the status quo’ and the paternalistic impulse to construct a ‘detailed design for a well-ordered society’ (Habermas Reference Habermas1998: 95). In order for constitutional theory not to simply lapse into a form of ideological heteronomy, theorists should confine themselves to elucidating the implications of the legal institutionalization of democratic self-legislative procedures, rather than preempting the outcomes that citizens themselves are to determine through these procedures (Habermas Reference Habermas1998: 95). Because the addresses of the law must also see themselves as its authors (Habermas Reference Habermas1996a: 417), a normative claim can be deemed legitimate only if it passes the test of publicity (Habermas Reference Habermas1998: 64), a procedural constraint on any moral principle worth the name. It is through this test – where citizens of equal standing vindicate their normative claims in rational public discourse (Habermas Reference Habermas1996a: 408) – that the line between heteronomy and self-legislation is clarified. As Habermas (Reference Habermas1996a: 13) puts it:
This is shown in the peculiar ambivalence with which the law presents itself to its addressees and expects their obedience: that is, it leaves its addressees free to approach the law in either of two ways. They can either consider norms merely as factual constraints on their freedom and take a strategic approach to the calculable consequences of possible rule-violations, or they can comply with legal statutes in a performative attitude, indeed comply out of respect for results of a common will-formation that claim legitimacy.
Habermas draws upon Luhmann’s (Reference Luhmann1985) notion of legal autopoiesis, but meaningfully reinterprets it in the context of his discourse theory of law. Along with Luhmann, he does construct ‘law as an autopoietic system’ (Habermas Reference Habermas1996a: 49–55), one whose validity lies in self-referential operations within its own code and procedures. Yet Habermas’ conceptualization reaches beyond the confines of such a self-sustaining construct of legal autopoiesis. For law to deal with problems that burden society, it must likewise act as a mediating structure between normative ideas and social facts. Legal autopoiesis attains normative legitimacy only in relation to the discursive processes of political will-formation and within a historically and culturally situated, self-understanding community (Habermas Reference Habermas1996a: 156). For, and herein lies the central criticism of Luhmann’s theory, an autopoietically closed legal system can neither sustain direct exchange with its intrasocial environment nor exercise any regulatory influence over it (Habermas Reference Habermas1996a: 51). That is, law is autopoietic in form yet discursively constituted in content. Although self-referential and self-regulating, law is not self-legitimating, for its legitimacy rests on discursive justification.
Habermas’s (Reference Habermas1996a: 285) ‘proceduralist understanding of the constitution’ emerges from this nuanced and well-calibrated account of legal autopoiesis. Self-referential yet normatively grounded in communicative rationality, constitutionalism must affirm the primacy of political autonomy over instrumental and paternalistic reason. This imperative informed nearly every aspect of his political thought. This first pertains to the rule of law discourse, which he explicitly associates with ‘political heteronomy’ (Habermas Reference Habermas1996a: 121). The rule of law feeds a paternalistic impulse because it impairs individuals’ role in the democratic law formation. Devoid of discursive engagement, it lapses into a mode of legal coercion that destroys the rational motives of everyone to obey the law (Habermas Reference Habermas1996a: 121). Habermas thinks along comparable lines when addressing constitutional adjudication. Although not an outspoken opponent of judicial review, he maintains that, as a guardian or educational regent, a court ‘must exercise its regency only as long as the sovereign prefers to keep to the private realm rather than occupy the place he has inherited, the political public sphere’ (Habermas Reference Habermas1996a: 278).
The affirmative intent of constitutional heteronomy finds expression in the way Habermas conceives of bridging citizens’ fragmented worldviews. Since The Theory of Communicative Action, Habermas (Reference Habermas1987: 190) has been acutely aware that intersubjective dissensus, the root cause of all perceived heteronomy, is inexorably expanding within modernity’s decentering of worldviews. The task of discourse theory, particularly the procedural concepts of rational consensus and communicative rationality is thus to delineate the mechanisms for mediating this decentering. In the context of Habermas’s constitutional theory, this is instantiated through two pivotal concepts: The co-originality of private and public autonomy, and constitutional patriotism.
The notion of the co-originality of private autonomy and public autonomy, that is, the mutual reinforcement and justification of popular sovereignty and human rights (Habermas Reference Habermas1995: 17; Reference Habermas1996a: 104), does more than reflect Habermas’s effort to bridge democracy and constitutionalism. It constitutes, I would argue, his most sustained and compelling engagement with constitutional heteronomy. To Habermas (Reference Habermas1996a: 408), a well-secured private autonomy helps ‘secure the conditions’ of public autonomy just as much as, conversely, the appropriate exercise of public autonomy helps ‘secure the conditions’ of private autonomy. Nonetheless, public and private autonomy, though co-original in status, do not enjoy equal weight within Habermas’ normative framework. Citizens’ private autonomy must ‘neither be set above, nor made subordinate to, their political autonomy’ (Habermas Reference Habermas1996a: 104). Put differently, private autonomy, considered in isolation, possesses no self-performative properties independent of the conditions established by public autonomy. If citizens, considered in their individual capacity, are to be understood as the authors of their rights, these rights acquire performative significance only within the procedural and institutional conditions of those discursive processes of opinion- and will-formation that confer binding force on popular sovereignty (Habermas Reference Habermas1996a: 104). By locating the foundation of constitutional rights in public rather than private autonomy, Habermas clearly signals his departure from a rights-centered conception of the rule of law, too paternalistic for his liking.
Habermas’ notion of ‘constitutional patriotism’Footnote 8 extends this reflection. By reconceptualizing individual autonomy through an intersubjective rather than an atomistic framework, this concept is particularly well suited to function as a mediating framework between inhibitive and affirmative heteronomy. ‘The fiction of the unified popular will’, contends Habermas (Reference Habermas1996a: 473), ‘could be realized only at the cost of masking or suppressing the heterogeneity of individual wills’. That is, the possibility of political integration itself presupposes a form of institutionalized heteronomy that must secure the affirmative assent of every constituent unit within the polity. In Habermas’ view (Reference Habermas1998: xxxvi), ‘inclusion does not imply locking members into a community that closes itself off from others … [It] means rather that the boundaries of the community are open for all, also and most especially for those who are strangers to one another and want to remain strangers’. On the one hand, the process of inclusion must do more than simply institutionalize conditions of coexistence under equal rights for different groups. Constitutional patriotism acquires significance only insofar as society resists fragmentation into a ‘multiplicity of subcultures closed off from one another’; otherwise, the road to societal polarization would be all but paved (Reference Habermas1998: 146). On the other hand, it is crucial to restrain the majority culture from ‘usurp[ing] state prerogatives’ (Reference Habermas1998: 225) and ‘fus[ing] with the general political culture’; otherwise it dictates the parameters of political discourse from the outset (Reference Habermas1998: 146). More importantly, even when unthreatened, a majority culture has every reason to cultivate a measure of heteronomy to sustain its own vitality. What Habermas (Reference Habermas1998: 223) terms ‘unrestrained revisionism’ refers to the responsibility of the majority group to consider alternatives to the status quo by remaining receptive to external transformative influences, even when doing so requires breaking with its own traditions.
A deliberative reframing of majoritarianism
The preceding discussion traced how Habermas structures his discourse theory to specify the conditions for constitutional heteronomy. As noted, the tenet of constitutional patriotism not only urges constituent groups to self-limit, but also cautions the majority culture against commandeering the public sphere. This locates discourse theory within a carefully qualified, minimalist account of majoritarianism, a stance that sets it apart from liberal and republican conceptions of majority rule. The critique of liberalism in this regard rests on two related grounds: first, for conceiving democratic will-formation as little more than a process of interest aggregation among self-owning individuals; and second, for insulating rights from democratic discourse by construing them as natural and pre-discursive (Habermas Reference Habermas1996a: 268–70). From a procedurally liberal vantage, valid majority decisions are presumed to generate outcomes that approximate the highest standards of justice, while in reality merely expressing the anxieties and self-protective impulses of groups facing status loss (Habermas Reference Habermas2001a: 50–51). On the other hand, republicanism is questioned for its overly ‘general’ and ‘abstract’ concept of ‘common will’, one that precludes the articulation of a theory of will-formation capable of accommodating ‘non-generalizable interests’ (Habermas Reference Habermas1996a: 473). By impeding the intersubjective formation of interests and value-orientations, republican ‘ethical overload’ thus undermines the very ‘readiness to cooperate’ (Habermas Reference Habermas1996a: 245).
Still, liberal and republican accounts converge, each in its way, on an atomistic conception of the individual as an ‘unencumbered self’ (Habermas Reference Habermas1998: 138). This, however, does not prompt discourse theory to dispense with the majority principle altogether. Drawing on the non-utilitarian ideas of nineteenth-century German democrat Julius Fröbel, Habermas (Reference Habermas1996a: 475) concedes that a democratic decision can only be made by voting and deciding according to the majority. He also readily acknowledges that deliberative processes of opinion- and will-formation can never supplant conventional majoritarian procedures, not least because legally institutionalized decision-making processes require outcomes to be reached within a determinate time frame (Habermas Reference Habermas2001b: 159).
It remains the case, however, that a default reliance on majority procedure is unlikely in itself to foster the conditions for affirmative heteronomy. Majority voting is, in fine, nothing more than ‘an impressive numerical expression of superior strength’, whereby democratic politics amounts to little more than a situation in which ‘one part of the people rules the other part’ (Habermas Reference Habermas1996b: 292). Historically, the ethos of the numerically-dominant majority has long warped legal relationships within the constitutional state, undermining the equal treatment of mutually dissonant social groups (Habermas Reference Habermas1996b: 1496). On this account (Habermas Reference Habermas1996b: 1496), the ‘prior norm of equal coexistence’ urges democratic decision-making to look past the confines of majoritarian principle. The persistence of ‘born’ minorities in pluralistic societies – those who are legal subjects yet permanently outvoted due to the unifying claims of the majority procedure – suggests that this procedure is not as neutral as assumed (Habermas Reference Habermas1998: 144). Therefore, simply decoupling the majority culture and the general political culture, which Habermas insistently advocates (Reference Habermas1998: 227), is, by itself, insufficient. For majoritarian aggregation to overcome its inherent bias, it must derive additional legitimacy from discourse ethics.
According to Rawls (Reference Rawls1999: 318), majority decisions are “practically authoritative, though not definitive,” insofar as they emerge from a quasi-pure procedural framework bounded by the principles of justice. In Habermas’s view (Habermas Reference Habermas1996b: 1494), ‘procedural rationality’ alone cannot sustain the entire burden of legitimacy, which lies primarily in the discursive practices of participants. The voting outcome thus yields, at most, what can be described as a ‘conditional consensus’ (Habermas Reference Habermas1996a: 475). That is, the majority decision can only legitimately bind the dissenting minority in an indirect manner, for procedural rather than substantive reasons (Habermas Reference Habermas1996b: 1495). Minority is simply expected to refrain from acting on its convictions until it can better articulate its arguments and secure the necessary affirmative votes (Habermas Reference Habermas1996a: 475; Reference Habermas1996b: 1494). A decision made under majority rule is intended to facilitate the rational, albeit fallible, outcome of an attempt to determine what is right through a discussion that has provisionally closed under the pressure to decide (Habermas Reference Habermas1996a: 475). It has value only insofar as it remains related to the search for truth. As such, it merely marks a caesura in a process of argumentation (Habermas Reference Habermas1996a: 475; Reference Habermas1996b: 1496). Throughout this process, majorities and minorities are expected to remain engaged in mutual justification, enabling their respective claims to coalesce into shared value or policy orientations. With majority polling deferred until deliberative channels have been exhausted, the convictions that have formed in each person’s mind are likely to fecundate one another, broadening the circle in which they find mutual recognition (Habermas Reference Habermas1996a: 475).
In essence, Habermas’s qualified incorporation of majority rule into discourse theory is subjects to four conditions. First, majority rule is a decision-making procedure rather than an independent source of legitimacy. Second, it must remain reversible, so that minorities retain the right to challenge and, in principle, overturn majority decisions. Third, it is constitutionally bounded by rights that enables equal participation. Fourth, its legitimacy rests on the quality of public justification, not the mere aggregation of fixed preferences. Clearly, extending majoritarian will-formation to the furthest limits of rational consensus best accords with the demands of affirmative heteronomy. As O’Neill (Reference O’Neill2000: 503) observes, the main thrust in Habermas’s deliberative majoritarianism is to determine the optimum conditions under which maximal inclusion and rational agreement can be brought into alignment. Habermas (Reference Habermas2001b: 159) carefully differentiates discourse, as a procedure for opinion formation, from the legally institutionalized processes of political will-formation. It is the ‘cooperative search for truth’ that smooths the transition from the former to the latter. That is why, in his view, truth-oriented legislatures are uniquely suited to act as reasonable filters for majority decisions (Habermas Reference Habermas2001b: 168). In order for the latter to operate properly within the framework of discourse ethics, the reciprocal pursuit of truth must remain insulated from instrumental considerations. To recast the point, the majority process must exhibit a sustained commitment to ‘mediat[ing] between reason and will, between the opinion-formation of all and the majoritarian will-formation of the representatives’ (Habermas Reference Habermas1996a: 475).
A critical assessment
Informed by his Kantian-inspired skeptical idealism, Habermas’ deliberative reframing of majoritarianism goes beyond republican egalitarian insights in confronting the possibility of constitutional heteronomy. The fact remains that his project has been criticized for being ‘incomplete’ in certain respects (O’Neill Reference O’Neill2000: 503). A first challenge lies in determining which incentives, beyond purely ethical ones, are likely to commit deliberating parties – especially those in the majority – to self-limit in the interest of achieving epistemically grounded outcomes. Discourse theory offers scant insight into how self-centered deliberators, in contexts as contentious as voting, might be persuaded to bracket their claims for the sake of truth and shared rational outcomes. Undoubtedly, this owes much to Kant’s imprint on Habermas’ project. Discourse ethics is premised on a transcendental requisite, namely the ‘ideal speech situation’ (Habermas Reference Habermas1984: 5–26; Habermas Reference Habermas1996a: 322). Such a requisite posits open and uncoerced public discussions in which participants acknowledge each other’s full normative dignity and whose operation depends entirely on ‘individuals’ self-control’ (Kavoulakos Reference Kavoulakos1999: 33–34; La Torre Reference La Torre2007: 34). Within this context, what must prevail is the compelling force of the better argument informed by the pertinent information (Habermas Reference Habermas1996a: 103). Assuming that deliberating agents, in their public use of reason, will respond solely to rational argumentation is to overlook how deeply interests and power permeate the public sphere (Worley Reference Worley2009: 451). Public discourse, whether formal or informal, is rife with asymmetries of status, power and resources, which inevitably separate it from ideal speech conditions. As Habermas (Reference Habermas1984: 25) concedes, empirical forms of rational discourse hardly meet the standards of ideal speech, which presuppose ‘symmetry conditions’ and a ‘cooperative search for truth’, neither of which finds meaningful realization in real-world arenas. According to Bourdieu’s theory of linguistic practice, to mention just the most thorough critique, language almost never functions merely as an instrument of communication (Bourdieu Reference Bourdieu1991: 67; Bourdieu Reference Bourdieu2000: 109). On a realistic view, the central flaw in Habermas’ ‘irenic’ notion of the ideal speech situation is that it ‘throws the political back onto the terrain of ethics’ (Bourdieu Reference Bourdieu2000: 66).
This prompts the question of whether discourse ethics can secure inclusion at all. Critics of Habermas fault him for assuming the possibility of the eliminability of exclusions in actual discourse, while his ideal of rational justification is itself seen as exclusionary (Dahlberg Reference Dahlberg2014: 26–27). To qualify – by the standards of discourse theory – as a legitimate deliberator, one must exhibit specific ‘moral’ and ‘epistemic’ capabilities deemed universally valid for rational deliberation. Short of such a prerequisite, one risks forfeiting the right to participate in public discourse. Ironically, the pursuit of inclusion through intersubjective sense-making risks devolving into an ‘epistocratic’ and potentially exclusionary mechanism. Habermas tells us nothing about the necessary capacities of his deliberating citizens. But, taking his discourse-ethical requirements seriously, public reasoning aimed at convincing one’s interlocutors of the validity of one’s claims appears to demand stringent cognitive and discursive capabilities. The concern, then, is that, for deliberative politics to remain inclusive, it cannot simply favor those who are well-educated, have access to special information or have a privileged social standing (Bohman Reference Bohman, Bohman and Rehg1997: 325).
This lends support to Habermas’s feminist critics (Fraser Reference Fraser1990; Young Reference Young2000) and agonistic critics (Mouffe Reference Mouffe2000), who have thoroughly exposed the inclusivity deficit in his Kantian-inspired model of publicity. Central to these critiques is the purportedly unitary and all-encompassing character of the public sphere. Fraser (Reference Fraser1990: 66–67) and Young (Reference Young2000: 167–73) argue that Habermas’s model risks entrenching majority domination wherever unequal social power determines who may speak and who is heard, which forms of expression count as reasons, what reaches the agenda and when deliberation is deemed complete. Yet the abstract and monolithic conception of ‘the public’ as a single, comprehensive constituency oriented toward consensus sits uneasily with the realities of actual public spheres. In contexts marked by social stratification, a single, overarching public sphere is likely to reproduce the communicative advantages of dominant groups. This highlights the decisive distinction between formally authorizing citizens to participate and enabling them to effectively exercise authorship through broadly equal capacities (Fraser Reference Fraser1990: 63–64). The actual dynamics reveal that the ‘bracketing’ of social inequalities prompts subordinated groups to create parallel discursive arenas – ‘subaltern counterpublics’ – in which feminist, working-class, racialized and other oppositional constituencies formulate and circulate counterdiscourses concerning their identities, interests and needs (Fraser Reference Fraser1990: 64–67).
In a nutshell, discourse theory’s central flaw lies in its tendency to infer democratic authorship too readily from formal participation. Public deliberation under unequal communicative power inevitably involves adaptation, silencing, control of the agenda and internalization of majoritarian norms. A further concern is that consensus on the ‘common good’, posited as the normative endpoint of public deliberation, is likely to induce subaltern publics to regulate their own expression, even at the expense of their specific views and concerns. Furthermore, in drawing boundaries and privileging certain claims over others, deliberative settlements might attach a stigma of ‘unreasonableness’ to dissenting groups rather than recognize them as legitimately outvoted minorities (Mouffe Reference Mouffe2000: 24–29). Various remedies have been proposed to mitigate the stigmatizing and exclusionary dynamics of actual public spheres. Particularly noteworthy is Young’s (Reference Young2000: 57–77) call to broaden the deliberative interplay beyond elite-dominated norms of argumentation by recognizing more inclusive and less constrained modes of communication, including greeting, rhetoric and narrative.
The ‘undecidability’ and ‘ineradicability’ of antagonism contributes an additional critical perspective on the limitations of the rational consensus framework. ‘We have to accept’, Mouffe (Reference Mouffe2000: 104) argues, ‘that every consensus exists as a temporary result of a provisional hegemony, as a stabilization of power, and that it always entails some form of exclusion’. A separate but related critique is that Habermas reduces majority voting to a procedural ‘closure’ mechanism that still requires discursive legitimacy rather than itself generating legitimacy, overlooking that, even when informed by deliberation, majority decisions remain merely ‘interim reports’ and therefore lack definitive legitimating force (McCarthy Reference McCarthy1996: 1089). The issue is that Habermas positions ‘agreement at the center and disagreement in the margins’ of his legitimacy account (McCarthy Reference McCarthy1996: 1083). Yet what constitutional autonomy demands is not mere reasonable consensus but institutionalized contestability (Mouffe Reference Mouffe2000: 56). By over-centering consensus and under-theorizing deep pluralism, discourse theory assigns an overly ‘epistemic’ interpretation of the consent of the governed, thus propelling public discourse toward an ideal of rational unanimity that bears little relation to the complexities of actual pluralistic societies. Evidence of this lies in deeply entrenched value divides that are irreducible to rational consensus, especially those rooted in religious or cultural worldviews. In such settings, not only can competing maxims be universalized by different individuals, but universalization itself admits multiple, equally rational justifications, leaving disagreement unresolved. Decisions on such matters should therefore be understood as ‘reasonable disagreements’ rather than ‘reasonable agreements’ (McCarthy Reference McCarthy1994: 56).
At any rate, the literature (Hees Reference Hees2007: 650; Berntson and Isaacs Reference Berntson and Isaacs2013: 270) broadly converges on the view that epistemic aggregation is unlikely to generate a single, coherent aggregate outcome. Under collective decision-making, the ‘discursive dilemma’, also known as the ‘doctrinal paradox’, reveals that the aggregation of individual logically consistent judgements frequently generates an outcome that neither corresponds to individual preferences nor preserves logical consistency (Kornhauser and Sager Reference Kornhauser and Sager1986; Pettit Reference Pettit, Goldman and Whitcomb2011). The tension between private and public autonomy further complicates the aggregation process. The alignment between self-determination, as required by private autonomy, and self-limitation, as required by public autonomy, is not as straightforward or mutually reinforcing as Habermas suggests. In practice, this purported alignment is likely to prove zero-sum, such that any expansion of public autonomy is experienced as a corresponding constraint on individual autonomy, and vice versa (Wiberg Reference Wiberg and Suksi1998: 57; Straume Reference Straume2008: 89).
Nevertheless, these criticisms should not be taken to undermine the normative coherence of Habermas’ framework. The misconception here is that the validity of Habermas’ normative claims is tested against the empirical operation of majoritarian politics. A significant source of tension within discourse theory lies in its attempt to navigate between ‘foundationalist’ and ‘contextualist’ modes of justification, rendering it vulnerable to the ‘is-ought’ problem (Heat Reference Heat1995: 77). Habermas (Reference Habermas2001a: 111, Reference Habermas2001b) himself anticipated this by insisting that discourse ethics cannot displace institutional decision-making procedures. His insistence on the provisional and fallible status of majority decisions shields him from the objection that rational consensus aims to eliminate dissent in pluralistic societies. On the contrary, Habermas demonstrated early on a keen awareness of the revitalizing role of dissent within a democratic polity. He went so far as to argue that uncontained forms of dissent may, and indeed ought to be enabled to, find legitimate expression beyond formal institutional channels. As early as the mid-1980, he looked into civil disobedience as a normal ‘litmus test’ for a mature constitutional democracy (Habermas Reference Habermas1985: 101). For him (Habermas Reference Habermas2004: 9), disobedience ought to be tolerated provided that disobedient citizens justify their resistance by citing constitutional principles and express it by nonviolent and symbolic means.
Conclusion
The foregoing discussion suggests that majoritarian rule and constitutional heteronomy reflect fundamentally distinct – and possibly incompatible – logics of political will-formation. Majoritarian rule, as defended by Waldron and Bellamy, demands realism and institutional workability in the management of disagreement. Yet, in so doing, it discounts the democratic significance of moral and epistemic aggregation, thus leaving the challenge of affirmative heteronomy largely unaddressed. Habermas’s reconstruction of majoritarianism, by contrast, offers a normatively compelling, though not readily workable, attempt to integrate the dual demands of constitutional heteronomy. His crucial notion of the co-originality of private and public autonomy underpins a discursive theory of will-formation that makes room for both equal standing among citizens – to curb inhibitive heteronomy – and intersubjective sense-making – to sustain affirmative heteronomy.
Viewed from that standpoint, deliberative majoritarianism may appear better positioned than its republican counterpart to accommodate the dual challenge of constitutional heteronomy. Yet this apparent divide conceals substantial affinities. Both accounts remain anchored in an egalitarian conception of democratic decision-making that affirms each person’s right to articulate their views and concerns, and resist heteronomous constraints on their individual agency. The divide turns instead on how each account calibrates autonomy and heteronomy – or, more precisely, on the relative weight it assigns to self-determination and self-limitation within collective decision-making. Republican majoritarianism contends that genuine inclusivity in collective will-formation requires taking political equality and individuals’ moral agency in their fullest normative sense. This accounts for why republican theorists remain bound to a decisionist response to moral disagreement, which privileges citizens’ strictly equal standing over intersubjective engagement, despite the potentially fragmenting and polarizing effects of such an unqualified approach to majoritarian decision-making. As Waldron and Bellamy illustrate, republican constitutionalism finds no justification for burdening public autonomy with heteronomy. Deliberative majoritarianism likewise upholds individual agency, embedding it, however, within discursive processes of aggregation as the basis of meaningful public autonomy. This explains why Habermas, in a broadly Kantian vein, conceives reflexive heteronomy as constitutive of autonomy. The tension with republican constitutionalism arises because discourse theory makes public autonomy conditional upon individuals’ willingness to exercise moral and epistemic self-restraint, rather than upon their right to maintain their own claims and judgements. This presupposes a shared orientation toward truth in opinion- and will-formation, a normative demand that sits uneasily with the empirical realities of the public sphere.
Whereas republican theorists take a pragmatic, disenchanted view of democratic will-formation – a posture mandated by the intractability of moral disagreement – their deliberative counterparts venture further, professing confidence in the possibility of establishing the transcendental and normative conditions for a democratic will-formation framework equal to the task of bridging our fragmented worldviews. This clash of perspectives recalls the defining tension within Kantian thought between transcendentalism and pragmatism, a tension I have examined from an immanent critical perspective in relation to constitutional heteronomy. Transcendentalism, understood as the search for universal conditions of possibility for knowledge and morality, stands in structural tension with pragmatic politics, concerned with the contingent features of human beings (Kant Reference Kant1999: 140; El Maslouhi Reference El Maslouhi2025: 199).
If, therefore, I have characterized constitutional heteronomy as inherently aporetic, it is because it mediates – and must continue to mediate – between equally compelling yet potentially irreducible exigencies: contingency and transcendentalism, private and public agency, and uniqueness and unity. This is the inescapable fate of liberal constitutionalism, grounded as it is in both individual liberty and the obligations of the social contract. This ultimately substantiates the argument on the undecidability between autonomy and heteronomy (Laclau Reference Laclau, Enwezor, Basualdo, Bauer, Ghez, Maharaj, Nash and Zaya2002: 381), or, to borrow Derrida’s words, between ‘incalculable singularity’ and ‘calculable equality’, or between ‘indivisible’ and ‘shared sovereignty’ (Derrida Reference Derrida2005: 86). This is also how we should interpret the theoretical impasses in scholarly debates pitting constitutionalism against democracy, individual rights against popular sovereignty, or majoritarianism against consociationalism. Majority rule, despite being democracy’s conventional mechanism of decision-making among equals, proves unable to resolve this constitutive aporia. Viewed in this light, the constitutional heteronomy perspective unsettles many of the foundational assumptions that have long underwritten the grand paradigms of democratic politics, thereby grounding a transformative and conceptually fertile research agenda for rethinking liberal constitutionalism in an increasingly uncertain world.
Competing interests
The author declares no competing interests.
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