By Roberto Gargarella
Jürgen Habermas’s greatest legacy lies in the ways he taught us to think about democracy, particularly through what he termed ‘deliberative democracy’. Through this notion, Habermas refers to a regulative ideal; that is, not a ‘description’ of democracy as it exists – which is what interested Robert Dahl, for example – but rather a normative horizon to be attained, a point that allows us to judge whether public decisions taken are justified or not.
According to Habermas, for a democratic decision to have authority and validity, it must be the product of an ‘inclusive debate’ – it must be the result of a discussion in which ‘all those potentially affected’ have participated. Of course, that is not what happens in reality. No surprise there: Habermas is speaking, precisely, of an ideal to be attained, not of ‘actually existing democracies’. And therefore – he continues – the more we can say that a decision is the product of a conversation among ‘all those affected’, the more reason we have to respect that decision.
According to Habermas, for a democratic decision to have authority and validity, it must be the product of an ‘inclusive debate’ – it must be the result of a discussion in which ‘all those potentially affected’ have participated.
One might say that all this is very abstract, and that it is of no use in real life. However, I believe that the regulative ideal offered to us by Habermas is exceptionally important. It allows us, on the one hand, to subject existing institutional arrangements to critical scrutiny (what are the most significant flaws in the democracy in which we live); and, on the other hand, it helps us determine how to modify or reform that democracy (which direction to take so that we can finally say that the decisions in question are now indeed justified). Once again, one might say that all this is very abstract – pure ‘intellectual boasting’. However, I wish to argue that the law (good law, I would say) needs to draw sustenance, must draw sustenance, from such ideals in order to function in practice.
One might say that all this is very abstract, and that it is of no use in real life. However, I believe that the regulative ideal offered to us by Habermas is exceptionally important.
To illustrate my point, I offer an example of tremendous importance and relevance in Argentina, particularly at this time, as we mark the 50th anniversary of the last coup d’état of 24 March 1976, when the military overthrew President Isabel Perón and launched a dictatorship that lasted until 1983. The coup ushered in the so-called National Reorganization Process , during which state forces carried out widespread repression, including torture, killings, enforced disappearances, arbitrary executions, and sexual violence. Detainees were held in inhumane conditions in a clandestine network of 814 detention centres across the country until their fate was decided. Also, it violently dismantled political parties, trade unions, social and student movements, and guerrilla opposition groups. Censorship was also extensive. The military controlled the media, supervised universities, and persecuted thousands of intellectuals and artists, or forced them into exile. An important sector of the Argentine elite, including economic actors, contributed to the repression.
When democracy returned to Argentina in 1983, the legal system found itself faced with a self-amnesty law, which had been pushed through by General Bignone just before he left power, seeking to preclude the possibility of a trial for those responsible for the atrocious crimes committed by the dictatorship. President Raúl Alfonsín inaugurated an accountability human rights policy that, among other goals, sought to prosecute top military officials responsible for gross human rights violations. If subsequent trials, including the globally renowned Juntas Trials, were ultimately possible, it was due to the arguments put forward by a group of legal philosophers – notably Carlos Nino, Genaro Carrió, and Jaime Malamud Goti – based directly on the idea of ‘deliberative democracy’ inspired by authors such as Habermas and John Rawls.
When democracy returned to Argentina in 1983, the legal system found itself faced with a self-amnesty law, which had been pushed through by General Bignone just before he left power, seeking to preclude the possibility of a trial for those responsible for the atrocious crimes committed by the dictatorship.
The philosophers argued that a rule such as self-amnesty could not be considered “valid law”, because the validity of a rule could not depend on the mere fact that it had “force” or coercive power behind it (as the law in the country, and even the Supreme Court, used to argue, based on its disastrous “de facto doctrine”). The validity of a rule depended on procedural and democratic conditions. The validity of a rule could not depend on its mere ‘enforcement’ (i.e., on the fact that people did not disobey it out of fear).
The validity of a rule depended on procedural and democratic conditions. The validity of a rule could not depend on its mere ‘enforcement.’
The question that needed to be asked was a different one in order to assess the validity of that rule. First and foremost: had it been the product of a democratic debate? More specifically, had it been agreed upon following a discussion amongst the existing political parties? Had it been properly debated in Congress? Of course not! Quite the opposite, and to an extreme degree! That decision had been made under conditions of severe exclusion, press censorship, extreme restrictions on freedom of expression, the banning of political parties and trade unions, etc.
Conclusion: it was a rule which (on an imaginary ‘validity’ scale) stood at the most negative end of the spectrum. It was the very opposite of what one could imagine in relation to a ‘valid law’. Therefore, there were good reasons to regard the self-amnesty law as ‘null and void’ or ‘non-existent’. Well, this seemingly abstract reasoning was ultimately what lay behind the repeal of the self-amnesty law. That decision – the repeal of military self-amnesty – was the first decision taken by Congress once democracy had been restored. This means, ultimately, that Habermas’s ‘regulatory ideal’—that supposedly abstract ideal, far removed from reality—provided Argentine politics and law with an exceptional theoretical basis and practical tool for resolving what was perhaps the greatest legal crisis Argentina faced in the last century.
Roberto Gargarella is a Senior Researcher at the National Scientific and Technical Research Council of Argentina (CONICET) and European Research Council Fellow.
This article is published under the sole responsibility of the author, with editorial oversight. The views expressed do not necessarily reflect those of the editorial team or the CEU Democracy Institute.
