question or task is at hand than assigning credit for good arguments and
blame for unproductive contributions. Our contributions to debate can
generate unexpected consequences, taking on meanings or signiWcance
which we would never have imagined possible beforehand.
This translation of the basic normative model of deliberative democracy
provides reason for concern, however. Its overstylized and undialectical
contrast between unity and plurality, anachronistic macro-subjects and sub-
ject-less deliberation, and ‘‘concretistic’’ vs. ‘‘desubstantialized’’ popular sov-
ereignty helps obscure one of the most basic issues of democratic theory: how
can the plurality of deliberative civil society undergo an eVective funneling
into a (uniWed) expression of democratically legitimate political power? If
civil society is to result in coherent legislation to which deliberative citizens
have agreed, if only in a relatively indirect institutional fashion (e.g. by
representative bodies), subject-less discourse and debate must ultimately
take a uniWed (that is, generally applicable) binding form. To the extent
that political decision-making requires that civil society ultimately speak
with ‘‘one voice,’’ political unity still must be achieved if ‘‘anonymous’’ and
‘‘subject-less’’ civil society is to speak coherently and decisively. 9 For trad-
itional democratic theory, formal political institutions play a decisive role in
generating this necessary moment of unity. Of course, Habermasian delib-
erative democrats have proposed a number of thoughtful institutional in-
novations (Benhabib 2002 ; Young 1990 ). Yet too little intellectual energy has
been devoted to examining the proper role of those institutional mechan-
isms—most important, perhaps, general law-making and the rule of law—
which historically have played a decisive role in making sure that civil society
can act eVectively and coherently via binding legal norms. 10
To be sure, achieving even a minimum of such unity at the transnational
level poses enormous hurdles in light of the unprecedented complexity
and profound pluralism weWnd there. The UN, of course, constitutes an
9 Of course, speaking with ‘‘one voice’’ may mean agreeing to disagree (as in the case of liberal
abortion laws), or even agreeing to the necessity of relative complex and even diVerentiated forms of
legal regulation.
10 Of course, there are exceptions here: Andrew Arato ( 2000 ), Jean Cohen ( 2003 ), Habermas
himself ( 1996 ), Maus ( 1992 ), and myself (Scheuerman 1994 ). Against John Dryzek ( 2000 ), I would
argue that this theoretical concern has motivated the resurgence of legal theorizing in critical theory,
and not a political sellout to ‘‘liberal constitutionalism.’’ In my view, Dryzek’s criticism rests on an
overstylized contrast between liberalism and radical democracy, since the latter will also require
individual rights, the rule of law, constitutional mechanisms channeling the exercise of political
powers, and independent courts.
98 william e. scheuerman