ABSTRACT
This chapter attempts to reconstruct Frank Michelman’s criticisms as successive stages in a debate which compels Jurgen Habermas to radicalize his proceduralist paradigm, while at the same time revealing the limits of the procedural model of legitimacy. It outlines the main features of the procedural model—in particular, the thesis of co-originality of constitutionalism and democracy—which provide the foothold for Michelman’s criticisms. The chapter argues that Michelman’s circularity objection calls for a clarification of the status of Habermas’s discursive standard of legitimacy if the procedural claim of theory is to be upheld. It then focuses on Michelman’s regress objection, which presents the discursive approach with an invidious alternative between rationalism and regress, which Habermas tries to escape by arguing that the founding act can be legitimated retrospectively by the very political process whose legal preconditions it establishes. The chapter focuses on Michelman’s own proposals for resolving the founding problematic which attempts to clarify further what is at stake in the debate.
