Habermas’s Account of Human Rights in Between Facts and Norms

Abstract

This chapter deals with Habermas’s account of rights in Between Facts and Norms. In such an account he addresses the issue of legitimacy by avoiding the tendencies to ground the legitimacy of law either in human rights or popular sovereignty alone. He does this by overcoming the competition between human rights and popular sovereignty through the affirmation of their mutual presupposition in a system of rights within a constitutional democracy. He provides a theoretical groundwork that allows us to develop a conception of human rights by describing categories of rights that give equal weight to both private and public autonomy of legal citizens so as to regulate their life in common by means of positive law. He introduces a discourse principle, which is intended to assume the shape of a principle of democracy only by way of legal institutionalization. Human rights remain abstract concepts if they are not implemented in a legal system that gives them a shape and content. Such an implementation is legitimate only if it is done through a democratic procedure through which citizens regard themselves both as addressees and authors of the law that regulates their living together.