ABSTRACT
Elaborated throughout the 1990s, the discourse theory of law and democracy extends the project of critically rethinking the capacities of liberal democracies for radical self-reform that was undertaken by the discourse theory of ethics. Habermas’ conviction that we have understood our Enlightenment legacies in a partial, one-sided, and distorted fashion does not desert him. Again the critical theorist is given the task of helping us to recover potentials for rationality supposedly implicit in our background cultural knowledges. This time it is not the repressed normativity of an early European bourgeois public sphere nor the counterfactual status of undertakings implicitly raised by competent language users and not even the specifically ethical presumptions of liberal democratic communities that critical theory principally needs to reconstitute. In Habermas’ sights this time is the incompletely theorized normativity that is both evident in, and betrayed by, the normal functioning of liberal democratic politico-legal institutions (the law and the Constitutional State). His message is that the major theoretical traditions that had outlined the grounds of the legitimate power of these institutions have not grasped the centrality of the modern public sphere to these expectations and, hence, have underestimated the extent to which critical norms are harboured within the institutionalized arrangements of capitalist democracies as their neglected potentials.
