The theoretical undertakings of both Rawls and Habermas pivot on an aspiration to explain (and surely to promote through explanation) the Enlightenment ideal of reason reflected in the idea of liberal democracy. The thoughts developed in my book The Concept of Liberal Democratic Law (2020, CLDL hereafter) pivot on the same aspiration. What obviously distinguishes the theoretical undertaking in CLDL from those of Habermas and Rawls, is the greater emphasis in CLDL on the precariousness of this ideal of reason. This article first gives a short exposition of some of the main lines of thought developed in CLDL. It then moves on to an analysis of Rawls’ theory of political liberalism and Habermas’ discourse-theoretical explanation of the legitimacy of modern law through the prism of the key elements of CLDL highlighted in the first part of the article.

Van der Walt, in my reading, suggests that enduring contingency, in the twofold sense of an enduring state of contingency and of contingency as what needs to be endured, justifies the central role of the majority/minority principle in liberal democratic law. Does this endorsement of the principle go far enough in addressing the radical challenge of contingency? What about those cases in which a group refuses to understand itself as a disaffected minority in conflict with a majority, hence as part of a unity, even if only the unity of a legal order? At issue is a group that demands exclusion from a polity rather than demanding its recognition and inclusion as a minority entitled to be treated as equal to, even if different from, the majority. I suggest that, in the end, Van der Walt justification of the majority/minority principle espouses an agonistic defence of political and legal unity.

In the last section of the article ‘Rawls, Habermas and Liberal Democracy,’ Van der Walt introduces the notion of a ‘diffuse we’ to delineate the role that constituent power plays in his account of liberal democratic law. This contribution raises questions about Van der Walt’s understanding of a liberal democratic community as a plural self. The first part of the article reviews some of the core passages of his The Concept of Liberal Democratic Law to highlight the different accounts of the unity of a liberal democratic community, which Van der Walt rejects. The last part of the paper questions the (epistemic) conditions under which the ‘diffuse we’ proposed by Van der Walt can socially cooperate and express a shared commitment to be bound by liberal democratic norms.

In ‘Rawls, Habermas and Liberal Democratic Law, Van der Walt asks how liberal democracy can be sustained when liberal-democratic ideals are in peril. In my response, I challenge Van der Walt’s methodological claim that liberal-democratic principles can and should be uprooted from metaphysics. I also question his claim that liberal-democratic ethics ultimately boils down to accepting terms of social cooperation that one does not consider reasonable. I argue that liberal-democratic ethics should not be reduced to the willingness to cooperate, but also needs to make space for the refusal of norms and practices of cooperation. As Van der Walt’s ontology pays insufficient attention to the impact of power upon cooperation, his ethics misses that citizens may, at times, need to resist prevailing forms of collaboration. I conclude with a brief reflection on the refusal of Trump supporters to accept the election results and its implications for ethics.

This paper thematises an unresolved tension in Johan van der Walt’s attitude towards ‘the unreasonable other’ who challenges the liberal democratic regime. This tension results from his reluctance to provide a more explicit account of the normative commitments of liberal democracy. Van der Walt’s analysis is characterized by a ‘fear of substance,’ which is, however, based on a false dichotomy between pure proceduralism and metaphysical substantivism. It similarly reveals a ‘fear of a democratic ethos,’ which is, in turn, based on a false dichotomy between a proceduralistic ethics of civility and a metaphysically rooted ethos. These fears often lead Van der Walt to misrepresent the views of both John Rawls and Jürgen Habermas and, consequently, to obscure the promising ways in which they provide a normatively explicit account of liberal democracy that allows us to deal with the antagonistic enemy of liberal democracy in a more consistent and convincing manner.

Böckenförde’s famous Dictum plays an important role in Johan van der Walt’s The Concept of Liberal Democratic Law and functions as the implicit frame of reference for his analysis of the works of Rawls and Habermas. Van der Walt sees a ‘parallel constituent/constituted-power problematic’ at work in the writings of both authors; a problematic relation between public ethos and the institutions of a liberal state. Although I agree with Van der Walt that it is crucial to critically reflect on the question what can sustain the ‘we’ at work in liberal democratic ethics, I will argue (1) that his reading of the work of Böckenförde and Habermas is one-sided and misrepresentative, and (2) that this misrepresentation partially explains why Van der Walt does not provide us with a convincing response to Böckenförde’s Dictum.

This article brings Van der Walt’s argument on the importance of an ‘ethics of civility’ in liberal democracies into dialogue with agonistic democratic theory. While agonists agree with Van der Walt that democracy requires citizens’ readiness to live with views that they do not consider ‘reasonable enough,’ they focus on the political processing of conflicts among political actors with opposing views of what is reasonable. The article argues that agonism may be a suitable complement to Van der Walt’s argument, because it shows how politics can help foster citizens’ willingness to act according to the demands of an ‘ethics of civility.’ It refers to Chantal Mouffe’s and James Tully’s agonistic theories and shows that both describe forms of conflict processing that prevent situations in which an ‘ethics of civility’ would demand too unequally distributed sacrifices: continued hegemonic struggle in the case of Mouffe and compromise in the case of Tully.

This article engages with Van der Walt’s concept of liberal democratic law. Firstly, it shows that his concept is significantly influenced by Hans Kelsen’s theory, mainly by Kelsen’s democratic political theory but also by Kelsen’s legal theory (insofar as the latter is considered to be related to the former). Secondly, it demonstrates that he goes also beyond Kelsen’s theory by considering necessary for the sustainability of liberal democratic law an adequate social state. Given this, I argue that there is, to an extent, a proximity to Hermann Heller’s social Rechtsstaat theory. Thirdly, it shows that – although the socio-economic level is, to an extent, considered – he leaves unexplored the rise of independent technocratic institutions in the economic governance framework of contemporary liberal democracies (the independent central banks, like the European Central Bank, being the main example). I argue that this issue needs to be explored in order to reach a realistic understanding of liberal democratic law (an understanding that Van der Walt aims at).

In this ‘reply to my critics,’ I engage with questions of institutional critique such as the critique of the depoliticising effect of the monetary practices of the European Central Bank (in response to Nikolas Vagdoutis), agonistic politics (in response to Manon Westphal), the enduring contingency of liberal democracy (in response to Hans Lindahl), the role of revolt and refusals to cooperate in liberal democracies (in response to Irena Rosenthal), the relation between the substantive norms and the actual ethics of liberal democracy (in response to Stefan Rummens), and times of regression and the strength and weakness of liberal democracy (in response to Ronald Tinnevelt).