Habermas, Feminism, and Law: Beyond Equality and Difference

Habermas, Feminism, and Law:Beyond Equality and Difference?*raju_472 25..48

SARAH SORIAL

Abstract. In this paper, I argue that Habermas’ proceduralist model of law can be putto feminist ends in at least two significant ways. First, in presenting an alternative tothe liberal and welfare models of laws, the proceduralist model offers feminism away out of the equality/difference dilemma. Both these attempts to secure women’sequality by emphasising women’s sameness to men or their difference from menhave placed the onus on women to either find a way of integrating themselves intoexisting institutions or to confront the so-called question of women’s difference. Theproceduralist model renders this dilemma irrelevant. Instead, it proceeds from thefact of sexual difference; a fact that produces competing and conflicting needs andinterests that require interpretation by both men and women. This, I argue, marks achange in the very way we conceptualise the so-called problem of women’sdifference, insofar as the question is no longer framed in these terms. Second, I arguethat this deliberative process over the interpretation of conflicting interests affects afundamental shift in the nature of legal institutions themselves, insofar as law is nolonger a vehicle for promoting male interests.

In Between Facts and Norms, Jürgen Habermas develops a proceduralistmodel of law that is grounded in deliberative procedures; these proceduresare, in turn, grounded in a system of rights that ensures equal rights ofparticipation in the law making process. Essential to this conception oflegal legitimacy is that the deliberative and decision-making procedures inquestion be guided by the discourse principle. The discourse principlestates that: “Just those action norms are valid to which all possibly affectedpersons could agree as participants in rational discourses” (Habermas1998a, 138). This new paradigm of law is intended to perform a number ofdifferent functions. It is intended to move beyond both the liberal andwelfare models of law, to re-establish the lost connection between private

* This research has been supported by the Australian Research Council under the DiscoveryProjects scheme (DP 0879258) “Can saying something make it so? Sedition, speech act theoryand the status of freedom of speech in Australia” and by the Faculty of Law Legal ScholarshipSupport Scheme.

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and public autonomy, and to provide a normative framework for thinkingabout rights and oppression.

My primary aim in this paper is to assess the relevance of Habermas’proceduralist model of law for securing feminist objectives. I take theseobjectives to include the analysis and critique of patriarchal institutions,concepts and relations; securing the equal representation of women inpublic life; protection from rape, sexual harassment, domestic violence,discrimination in education and the workplace, and the protection offreedoms in general and reproductive freedoms in particular.1 I suggestthat the proceduralist model can be put to feminist ends in at least twosignificant ways. First, in presenting an alternative to the liberal andwelfare models of laws, the proceduralist model offers feminism a way outof the equality/difference dilemma. Both these attempts to secure women’sequality by emphasising women’s sameness to men or their differencefrom men have placed the onus on women to either find a way ofintegrating themselves into existing institutions or to confront the so-calledquestion of women’s difference.2 The proceduralist model renders thisdilemma irrelevant. Instead, it proceeds from the fact of sexual difference;a fact that produces competing and conflicting needs and interests thatrequire interpretation by both men and women.3 This, I argue, marks achange in the very way we conceptualise the so-called problem of women’sdifference, insofar as the question is no longer framed in these terms.Second, I argue that this deliberative process over the interpretation ofconflicting interests effects a fundamental shift in the nature of legalinstitutions themselves, insofar as law is no longer a vehicle for promotingmale interests; a shift that feminists have long thought necessary to achievethe aforementioned objectives.

1 While there is significant divergence in feminist views, I suggest that all feminists wouldagree to these objectives to greater or lesser degrees. The significant point to be made, asPatricia Smith argues, is that the rejection of patriarchy is the primary goal of all feminism:“it is an irreducible point, and it distinguishes feminism from all other theories” (Smith 1993,9). I also reject the claim that there is no identity to the category of woman, given thesignificant differences that exist between women. While individual women will no doubtexperience oppression differently, there is nonetheless a commonality about women’s expe-riences in relation to male dominance.2 While many feminists have argued that this dialectic needs to be overcome, and havesuggested that the sameness/difference dilemma is a misformulation of the problem, somefeminists still think that the question of women’s so-called difference—whether sociallyconstituted or innate—cannot be ignored. For example, Georgia Warnke writes: “to ignore thisquestion is to condemn feminists to a Sisyphean struggle in which their efforts to achieveequality for women by emphasizing the sameness of men and women are undermined byprotestations of women’s social or biological difference in which their efforts to securesubstantive opportunities for women by emphasizing their innate or constructed needs areundermined by demonstrations of their human sameness” (Warnke 2000, 62). AlthoughWarnke does go on to argue that Habermas does offer a response to this struggle.3 Arguably, the claim I am making is consistent with feminist pragmatism, in the sense thatit is anti-essentialist, and conceives of law as a process of conflict resolution, notwithstandingits gender bias.

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My secondary aim is to defend the deliberative model of law from thecharge that it is inherently masculine, and thus, reproduces gender inequal-ity. The emphasis on a public life governed by reason and rights has beencriticized on the grounds that it reproduces a conception of public reasonthat has traditionally been used to exclude women. The deliberative modelalso assumes that everyone who is affected by an issue has the capacity tocontribute to public debate. It thus ignores the various social, cultural andfamilial constraints on one’s capacities to contribute to law making.4

These concerns over public reason, I suggest, not only rest on a mis-understanding of Habermas’ account of communicative reason, but riskreproducing the very binaries between reason and affect that have beenused to exclude women from public life.5 With reference to Habermas’account of communicative rationality, I demonstrate the way in whichone’s ability to contribute to informal public debate does not depend onone’s intellectual capacities, or education, as contended by these criticisms,but merely depends on one’s capacity to give reasons—whatever they maybe—for one’s position by way of language. I also demonstrate the way inwhich these criticisms fail to distinguish between the cultural and politicalspheres and between the spheres of ethics and justice. I conclude bydemonstrating the way in which Habermas’ model is actually closer tofeminist concerns than feminists have traditionally conceded.6

1. The Proceduralist Model of Law

According to Habermas, the function of modern law is to provide a meansfor keeping together complex, pluralist and centrifugal societies. This

4 Many feminists have made this argument against Habermas’ deliberative model. For thepurposes of this paper, I focus on the criticisms made by Iris Marion Young. For others, seeFraser 1995; Dean 1995; Fleming 1995. For a discussion of these positions in relation toHabermas’ earlier work in A Theory of Communicative Reason, see Johnson 2000. For a moregeneral discussion on this problem of participation, see Geenens 2007. As Geenens 2007, 366points out, actual debate on this deliberative model assumes, and may even require, thateveryone is able to contribute equally. It requires that each person should receive an equalchance to exercise her communicative freedom and to take a position on criticizable validityclaims. But not all participants in a debate are in an equal position. Invariably, there are somewho will have more expertise in particular areas and who are in a better position tounderstand the complex effects of various decisions. Such an inclusive discourse principlethus assumes that everyone affected by a particular issue can contribute, irrespective ofexpertise and understanding. Given the highly technical and specialized nature of law inmodern societies, and the complexities of the issues it must regulate, it is not clear whatcontribution informal public discussion can make. A full examination of this difficult questionis outside the scope of this paper. Suffice it to say that my position is that in principle,Habermas’ deliberative model is not exclusionary.5 While Habermas’ deliberative politics is somewhat different from his earlier work oncommunicative rationality and discourse ethics, it remains informed by his theory of com-municative rationality.6 For other arguments defending Habermas’ model on feminist grounds see Warnke 2000;Johnson 2000; Meehan 2000.

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integrative capacity of law is made possible by virtue of certain formalproperties that legal norms possess: Modern law is both enacted or positiveand enforced or coercive; it requires nothing more of its addressees thanconformity to its norms, but it also has to meet the expectation of legitimacy.In this sense, modern law is “Janus-faced”: It permits individuals to complyfor strategic or prudential reasons—from fear of sanctions—or for normativereasons—from respect for the law’s legitimacy.7

The law’s legitimacy is determined by the discourse principle according towhich legal norms are deemed legitimate only if all possibly affected personscould agree to them as participants in rational discourse. “Those affected”include anyone whose interests are affected by the foreseeable consequencesof a general practice regulated by the norms at issue. Rational discourserefers to any attempt to reach an understanding over problematic validityclaims that takes place under conditions of communication. These condi-tions must enable the free processing of topics and contributions, informa-tion, and reasons in the public space (Habermas 1998a, 107–8).

The discourse principle forms the basis of Habermas’ proceduralist modelof law, intended to replace both the liberal and welfare state models(Habermas 1998b). This model performs three fundamental shifts: It shiftsthe locus of legislative and decision-making power from the formal institu-tions of the state and locates it in the communications of an unsubvertedpublic sphere. The public sphere is in turn, tied to the “associational networkof a liberal civil society and gains support from the core private spheres ofthe lifeworlds” (ibid., 18). Second, this model shifts the normative expecta-tions from the level of the actors’ qualities, competences and opportunitiesto the forms of communication in which opinion-formation can develop andinteract with the formal organs of the state (ibid., 18). Third, it re-establishesthe lost connection between private and public autonomy.

The liberal model of law depends on a separation between the economicsphere, the individual/private sphere and the state. This “private lawsociety” was tailored for the autonomy of legal subjects, who, as marketparticipants, would seek and find their happiness by pursuing their ownparticular interests as rationally as possible (ibid., 15). On this account, theprinciple of legal freedom implied equal protection for all persons. Equalprotection for all was to be guaranteed through the formal universality oflegal statutes. The existence of these formal laws would, presumably,ensure social justice: “The expectation of social justice was implicitly linkedwith the demarcation of nondiscriminatory conditions for the actual exer-cise of those liberties granted by legal norms regulating contracts, property,

7 See Habermas 2001. Habermas writes: “modern law leaves its addressees free to approachthe law in either two ways. They can consider norms merely as factual constraints on theirfreedom and take a strategic approach to the calculable consequences of possible rule-violations, or they can comply with the regulation ‘out of respect for the law’ ” (ibid., 114–5).

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inheritance, and association” (ibid., 15). That is, so long as all persons weregiven equal formal rights in law, social justice would follow as a matterof course.

This was, however, based on dubious economic assumptions aboutequilibrium in market processes, and the distribution of wealth and socialpower. Rather than protecting the ideals of social equality and freedom bymeans of formal law, an enormous gap opened up between formal andsubstantive equality, as inequalities in economic power, assets and socialopportunities became more apparent (ibid., 15). This meant that theuniversal right to equal individual liberties could no longer be guaranteedthrough the negative status of the legal subject. A different model was thusnecessary to redress these emerging inequalities.

The welfare state model emerged in response to the fact “that legalfreedom, that is, the legal permission to do as one pleases, is worthlesswithout actual freedom, the real possibility of choosing between thepermitted alternatives” (Alexy 1985 cited in Habermas 1998b, 15). Unlikethe liberal market model, which leaves the market economy to its ownspontaneous forces, the regulatory welfare state intervenes once conditionsgo beyond a point determined by the “limits of social tolerance” (Haber-mas 1998b, 17). The state is held accountable for crisis conditions perceivedto result from its own deficiencies in planning and intervention (ibid.).State intervention does, however, come at the cost of the private autonomyof its citizens. While the welfare state model provides each individual witha material basis for a dignified existence by guaranteeing social security,health care, housing, income provisions, education, and leisure, it alsoimposes and expects “normal” patterns of behaviour on the part of itsclients. According to Habermas, “this normalizing pressure obviously runsthe risk of impairing individual autonomy, precisely the autonomy it issupposed to promote by providing the factual preconditions for the equalopportunity to exercise negative freedoms” (ibid.).

Nowhere have these tensions between formal (liberal) and materialized(welfare) law been more apparent than in the case of women’s rights. Thesetwo models have also been the source of the tension between equality anddifference that has characterized much of the feminist debate about the issueof women’s rights. As Habermas points out, the classical feminism stem-ming from the nineteenth century understood the equality of women interms of equal access to existing educational institutions, public offices, gov-ernments, and so on.8 The liberal rhetoric of equal rights was intended tomake gender irrelevant to social status, education, job prospects and politicalpower. But simply removing formal restrictions on women’s participation inpublic life did not provide equal opportunity. As Habermas notes:

8 This has generally been the position of “second-wave feminism.” See Barnett 1998 for anhistorical overview of shifts within feminism.



Liberal politics was supposed to bring about the inclusion of women in a societythat has hitherto denied them fair chances to compete. The difference between thesexes supposedly would lose its social relevance once the differential access to therelevant spheres was overcome. However, to the extent that the formal equality ofwomen was implemented in some important social spheres, the dialectic of legaland actual equality was also felt. (Habermas 1998a, 421)

Granting women formal equality did little to challenge the traditionalstereotypes that continued to disadvantage women. Nor did it accommo-date women’s biological differences, or address the problem of the unequaldivision of domestic labour. Women who did manage to break into thetraditionally male fields of economics, law, politics or academic life foundthemselves faced with the choice of relinquishing their personal life,or working a double day, a choice that men did not have to make (Smith1993, 4).

The welfare state model recognized the embodied differences betweenmen and women and developed protective norms in relation to pregnancyand maternity, custody rights, divorce, domestic violence and sexualassault. These norms and rights “cluster around the clear biological dif-ferences connected with reproduction” (Habermas 1998b, 22). But like theliberal model before it, the welfare state model also had some ambivalentconsequences for women. Legal provisions for maternity and pregnancyonly increased the risk of women losing their jobs while protective labourlaws only reinforced segregation in the labour market or led to the overrepresentation of women in lower wage brackets (ibid.).

The problem with both the liberal and welfare models of law is thatregulatory law merely reinforced existing stereotypes of gender identity.Both models assume that equal entitlements of the sexes can be achievedwithin the existing institutional framework and within a culture dominatedand defined by men. Habermas writes:

To the extent that legislation and adjudication in these cases are oriented bytraditional interpretative patterns, regulatory law consolidates the existing stereo-types of gender identity. In producing such “normalizing effects,” legislation andadjudication themselves become part of the problem they are meant to solve. Aslong as the “normal work relation” of the fully employed male serves as thestandard for “deviations” that need to be offset, women are forced by compensa-tory regulations to adapt to institutions that structurally disadvantage them.(Habermas 1998b, 23)

The liberal and welfare-state models of law do not conceive of genderrelationships in terms of two equally problematic, and at times, conflictingvariables that are in need of interpretation. Rather, they place the onus onwomen to assimilate to existing institutions that have traditionally servedthe interests of men, but do little to challenge the nature of the institutionsthemselves. By treating men and women as the same, the liberal view

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ignored genuine physical and social differences in a way that disadvan-taged the majority of women. By treating women as different, the welfareview risked perpetuating the traditional stereotype of women as biologi-cally domestic and dependent.

But the relevant question, as feminists such as Rhode point out, is notwhether women are or are not “like” men in respect to a given occupation,or whether they are different from men; rather, the question is whether thatoccupation can be redefined and restructured to make those differences lessoccupationally relevant (Rhode 1989, 97). Such an approach, Rhode argues“demands that feminists shift self-consciously among needs to acknowl-edge both distinctiveness and commonality between the sexes and unityand diversity among their members” (ibid., 97). It also requires a differentmodel of law that is able to negotiate these tensions and complex issues asthey arise.

The deliberative model of law provides one way out of the sameness/difference dialectic, and, more significantly, guarantees that women areparticipants in the law-making process. This model requires that theaffected parties themselves conduct public discussions in which theyarticulate their needs, interpret their rights, and take responsibility for thelaw making process about issues that affect them. The deliberative modelmakes no prior assumptions about what those needs may be. It does notassume, for example, what black women, or indigenous women, ormigrant women would want; it does not attempt to define women in termsof a fixed identity or to constrain women within pre-defined categories. Onthis model, all identities and assumptions are up for re-negotiation. By notassuming to know what women want or need prior to deliberation by theaffected parties themselves, such a model also avoids state paternalism.

Moreover, as Rummens points out, actual deliberation has a twofoldepistemic function. First, actual deliberation is necessary for heuristicreasons, in the sense that only the people involved or affected by aparticular issue have the lived experience of their own particular situation.This epistemic privilege means that only they can make sure that all theproblems, needs, and values that they consider relevant are introduced intothe discursive process (Rummens 2007, 346).9 Second, actual discourse hasa transformative function. Actual deliberation requires that citizens “adoptthe perspective of all others,” and in doing so, subject their own prefer-ences, interests and interpretations to critical examination and assessment.

9 Also see Benhabib 1996; Gutmann and Thompson 1996; Young 1996; Cohen 1999. In thisrespect, the deliberative model is consistent with feminist epistemology, which argues thatmembers of oppressed groups have “epistemic privilege” or “double vision” in seeing howpower operates in the construction of knowledge. According to Fricker, “life led at the sharpend of any given set of power relations provides for critical understanding (of the social worldin the first instance) where a life cushioned by the possession of power does not” (Fricker2000, 147).



This process is transformative in the sense that citizens come to anenlarged understanding of the issues, and possibly, correct or revise theirviews. Habermas writes: “the moral point of view calls for the extensionand reversibility of interpretative perspectives so that alternative view-points and interest structures and differences in individual self-understandings and worldviews are not effaced but are given full play indiscourse” (Habermas 1995, 58).

The third function of deliberation is to re-establish the lost connectionbetween private and public autonomy; a connection that is severed by bothliberal and welfare models of law:

[A]fter the formal guarantee of private autonomy has proven insufficient, and aftersocial intervention through law also threatens the very private autonomy it meansto restore, the only solution consists in thematizing the connection between formsof communication that simultaneously guarantee private and public autonomy inthe very conditions from which they emerge. (Habermas 1998b, 23)

By conceiving of autonomy in terms of a self-sufficient private individual,the liberal model framed private autonomy in a way that prevented theindividual from projecting his or her particularistic concerns into publicdiscussion. The welfare model undermined private autonomy throughexcessive intervention in citizens’ private lives. By conceiving of privateand public autonomy as co-originary or mutually dependent on oneanother, the deliberative model is able to re-establish the lost connectionbetween public and private autonomy.

It is able to do this because on this model, legitimate law can onlyemerge from the communications of an unsubverted public sphere that isultimately rooted in “the core private spheres of the lifeworld” (Habermas1998b, 18). This means that the realisation of one’s private autonomydepends on the articulation of one’s needs in the public sphere; this, inturn, ensures the public recognition of one’s needs. Recognition of one’sneeds, particularly the public recognition of one’s oppression, helps realizeand promote one’s private autonomy. For example, until recently, womenhave never defined the injury of rape. The men who have defined it havedone so based on their own self-serving interpretation (consider, forexample, the marital rape exception). Until recently, a rape was said tohave occurred if the attack was random, the attacker was a stranger, andused significant force, such that the woman could in no way fight back.Rape was not something that happened to women in their bedrooms, aviolation inflicted on them by their husbands or partners. The failure toaddress this “private” experience of oppression in law constitutes misrec-ognition of this oppression and the women who suffer it. This underminesa woman’s private autonomy because legally, socially and culturally,women are not deemed as deserving of legal protections or bodily integ-rity. As Catharine McKinnon puts it:

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when you are part of a subordinated group, your own definition of your injuriesis powerfully shaped by your assessment of whether you could get anyone to doanything about it, including anything official. You are realistic by necessity, and thevoice of law is the voice of power. When the design of a legal wrong does not fitas it happens to you, as in the case with rape, that law can undermine your socialand political as well as legal legitimacy in saying that what happened was an injuryat all—even to yourself. (MacKinnon 1993, 146)

On the deliberative model, the realisation of one’s private autonomyrequires the activation of one’s political or public autonomy and vice versa.Gaining legal recognition of one’s oppression and the indignity one hassuffered enables oppressed agents to see themselves as worthy and deserv-ing of legal rights, and thus can enable that agent’s private autonomy.

There are, then, three implications of the deliberative model for securingwomen’s rights. First, it means that because women have epistemic privi-lege in relation to issues that affect them, they themselves must participatein the deliberative process. Second, the requirement that women them-selves must contribute to the law-making process effects a fundamentalshift in the nature of the institutions themselves—a point I will return toin the final section. Third, because the deliberative model requires womento name and articulate their oppression, it enables public recognition of it.This recognition has political implications insofar as it puts aspects ofwomen’s oppression on the political agenda, and personal implicationsinsofar as it enables women to realize their personal autonomy.10

2. The Problem of Deliberation and the Problem of Consensus

Despite widespread agreement about the importance of deliberation inliberal democracies, the meaning, scope and application of deliberativepractices in particular contexts are often contested. What, for example, ismeant by deliberation? What speaking styles does it admit or exclude?Can the deliberative model accommodate disagreement? In this section, Iaddress these concerns, focusing in particular on the criticisms raised byIris Marion Young about the exclusionary nature of deliberation, andcriticism raised by Georgia Warnke about the idea of universal consensus.

Although Young endorses a discussion-based ideal of democracy, sheidentifies two problems with how this ideal is usually articulated. First, byrestricting the concept of democratic discussion narrowly to critical argu-ment, deliberative democracy assumes a culturally biased conception ofdiscussion that tends to silence or devalue some people and groups, andexclude aspects of communication, including rhetoric, narrative, affect, and

10 The intersubjective nature of autonomy shares some similarities with relational accounts ofautonomy, which emphasize the social political and cultural dimensions of agency. SeeMackenzie and Stoljar 2000.



emotion (Young 1996, 120).11 Second, deliberative theorists tend to assumethat processes of discussion that aim to reach understanding must eitherbegin with a shared understanding or take a common good as their goal.

According to Young, the deliberative model of communication derivesfrom a specific institutional context of the modern West: scientific debate,modern parliaments, and courts. These institutional forms, rules, and styleshave come to define the meaning of reason in the modern world. As rulinginstitutions, however, they have been elitist and exclusive, and havetraditionally been dominated by white, upper-middle-class men. Whilethese institutions claim to pursue truth through norms of deliberation, theyoften operate as forms of power that silence or devalue the speech of somepeople (ibid., 123).

Consider, for example, parliamentary debates or argument in court.According to Young, these are not free and open public forums in whichall people actually have the right to express claims and to give reasonsbased on their own understanding: Rather these forms of deliberation aredeliberately competitive and antagonistic (ibid., 123). These forums requireassertive and confrontational speech rather than speech that is tentative,exploratory, or conciliatory. In most actual situations of discussion, thisprivileges male speaking styles over female.12

Furthermore, the norms of deliberation tend to privilege speech that isformal and general, that proceeds from premise to conclusion and thatclearly lays out its inference structure. However, these norms of articulate-ness must be learnt, and often exhibiting such speaking styles is a sign ofsocial privilege (ibid., 124). Thus, deliberation is not by its very naturedemocratic because it is not equally open to all ways of making claims andgiving reasons. Forums such as courts and parliamentary bodies alsofavour speech that is dispassionate and disembodied, rather than speechthat is emotive:

[T]hus expressions of anger, hurt, and passionate concern discount the claims andreasons they accompany. Similarly, the entrance of the body into speech—in widegestures, movements of nervousness or body expressions of emotion—are signs ofweakness that cancel out one’s assertions or reveal one’s lack of objectivity andcontrol. Deliberative norms tend to privilege “literal” language over figurativelanguage such as hyperbole, metaphor, and so on. (Ibid., 124)

11 Joan Landes also argues that Habermas’ efforts to promote private autonomy by way ofpublic autonomy inevitably results in the suppression of those “with different ways oftalking.” See Landes 1995. I would suggest, however, that Habermas’ account of privateautonomy is actually much closer to relational accounts of autonomy, advocated by feministphilosophers including Mackenzie, Meyers, and Brison, to name but a few. For furtherexamination of this model of autonomy, see Mackenzie and Stoljar 2000.12 For example, there is empirical evidence to suggest that girls and women tend to speak lessthan boys and men in speaking situations that are more adversarial. When women do speakin such situations, they tend to give information and ask questions rather than state opinionsor initiate controversy. See Young 1996.

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In our culture, these differences in speech correlate with differences ofsocial privilege. The speech culture of white middle-class men tends to bemore controlled and less emotive, while the speech culture of women andracial minorities tends to be more excited, emotional, and embodied.According to Young, a discussion-based theory of democracy needs to bebroadened to include more forms and styles of speaking than deliberativetheorists allow:

while argument is a necessary element in such effort to discuss with and persuadeone another about political issues, argument is not the only mode of politicalcommunication, and argument can be expressed in a plurality of ways, interspersedwith or alongside other communicative forms. (Ibid., 125)

These ways include greeting, storytelling, and narrative (ibid., 123).Young also takes issue with the emphasis of deliberative theorists on the

transformative process that takes place as a result of deliberation. That is,the idea that we each come to debate with subjective preferences andchoices that are transformed into objective claims for the greater goodbecause we have been persuaded by the better argument (ibid., 125). Youngargues there are two problems with this way of constructing the process ofdiscussion. First, in contemporary pluralist societies we cannot assume thatthere are sufficient shared understandings to appeal to in many situationsof conflict and decision-making (ibid., 123). Second, the assumption ofprior unity cancels out the need to overcome one’s own viewpoint. Ifdiscussion succeeds primarily when it appeals to what the discussants allshare, then there is no need for discussants to revise their opinions orviewpoints in order to take into account the perspectives and experiencesbeyond them. The problem here is that the attempt to find unity based onthe common good will cancel out the perspectives of others:

When discussion participants aim at unity, the appeal to a common good in whichthey are all supposed to leave behind their particular experience and interests, theperspectives of the privileged are likely to dominate the definition of that commongood. The less privileged are asked to put aside the expression of their commonexperience, which may require a different idiom, or their claims of entitlement orinterest must be put aside for the sake of a common good whose definition isbiased against them. (ibid., 126)

Carol Gould and Georgia Warnke also raise similar objections.13 Accordingto Gould, the telos of Habermas’ deliberative model—what characterizes itsaim and method—is agreement, and difference is something that is gottenpast. Gould writes that “the reciprocal recognition is for the sake of commonagreement rather than also for the sake of enhancing and articulating

13 See also McCarthy 1998 and Heath 2001 for an extensive examination of this point.



diversity. Diversity may be the original condition of a polyvocal discoursebut univocity is it normative principle” (Gould 1996, 172). Warnke suggeststhat the ideal of universal consensus ignores the importance of differences inthe way different groups within a society might foresee consequences,understand their interests or interpret the meaning of the norms underdispute. Warnke asks: “Must we assume that there are interests that aregeneralizable or that only one sort of attention to consequences or one wayof understanding our interests or our norms can be rationally justified?”(Warnke 1995, 251). Warnke demonstrates the difficulty, if not impossibility,of arriving at generalizable interests about the morality of controversialissues such as surrogacy or contact pregnancies.

If, for example, we argue against the enforceability of surrogacy con-tracts on the grounds that they allow for the sale of babies, we interpret thenorm at issue as one that involves the inviolability and dignity of humanbeings and the sanctity of the infant-mother bond. Surrogacy contracts, onthis view, violate both the interests of babies and the interests of those whomay be pressured to sell their babies because of poverty, welfare policiesand so on (ibid., 251). But another way of arguing for the enforceability ofsurrogacy contracts is on the grounds that human beings are free to dowhatever they want with their bodies, and that surrogacy contractspromote the autonomy and equality of women. Prohibiting contract preg-nancies, on this view, violates the rights of the mother to act in her interestsand the interests of childless couples (ibid.). Is there a generalizable interesthere that would tell us whether surrogacy contracts are legitimate or not?And if so, with which group does it originate? (ibid.).

On Habermas’ view, the norms under consideration are not specificnorms governing legitimate reproductive practices; rather, they are moregeneral and abstract principles such as those of human rights or freedomand equality of persons (ibid.). But as Warnke points out, applying abstractprinciples does not bring us any closer to generalizable norms in relationto this issue, as these principles will be interpreted differently by groupsand people, depending on their concerns and interests, as well as theircultural traditions, values and upbringing (ibid., 252). For example, forthose who support the legitimacy and enforceability of surrogacy contracts,the meaning of liberty would include the right of women to enter into suchcontracts, and the meaning of equality includes women’s full social andeconomic equality with men. Since the right of men to enter into repro-ductive contracts for the sale of sperm is not questioned, questioning theright of women to enter into similar and enforceable contracts not onlydenies them their freedom and equality, but assumes that they are lessrational than men and more likely to change their minds about the termsof the contract, and less capable of either calculating their own interests inan autonomous manner or pursuing them (ibid., 251). For those whooppose the enforcement of surrogacy contracts, the meaning liberty might

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be interpreted as including a woman’s right to change her mind about adecision as difficult as giving up her child, while the right to equality couldbe interpreted as including the rights of poor women not to be exploitedby childless middle-class couples (ibid.).

Warnke rightly points out that such differences in the way we under-stand the norms of liberty and equality do not seem to be differences thatcan be transcended or overcome through argumentation in practical dis-course. They are differences in our sensibility and concern, differences inour understanding of the value of motherhood and parenting, and differ-ences in what we take to be a good society (ibid., 251). These differencesappear to stem from our cultural heritage and our experiences, rather thanfrom the force of reason. Warnke writes:

surely we can give arguments for or against our understanding of the norms ofliberty and equality that are involved in the issue of surrogacy, but the ability of ourarguments to persuade others does not seem to be independent of their values,traditions, and conceptions of the good. (Ibid., 251)

These criticisms, I suggest, miss the mark in a number of important ways,and thus fail to see the potential of Habermas’ deliberative model forachieving feminist ends. Part of the problem here, as Benhabib has pointedout, is that many of these criticisms fail to distinguish between conceptualand institutional critiques, arguing that democratic institutions and im-partial public places are essentially, rather than accidentally, masculine(Benhabib 1996, 81). The problem with this argument is that it implies thatwomen, on account of their very nature, are unable to meet the require-ments of impartiality, and prefer less formal modes of communication.This, I suggest, not only reproduces the very binaries between reason andaffect that have been used to exclude women from public life, but is alsobased on a misunderstanding of Habermas’ account of communicativerationality and the function it plays in his proceduralist model. Further,these criticisms fail to distinguish between the social/cultural sphere andthe political, between informal forums of deliberation and formal policyand law-making institutions, between ethics and morality, and the way inwhich these various spheres interrelate. In the following section, I distin-guish between these various spheres and delineate their functions in orderto defend the deliberative model from these criticisms. I then demonstratethe critical opportunities afforded by Habermas’ two-track system ofdeliberation for achieving feminist objectives.

3. Communicative Rationality and the Problem of Exclusion

Young has argued that norms of deliberation are exclusionary because theytend to favour speaking styles that are assertive, confrontational and



antagonistic. They thus tend to privilege male speaking styles over female.Young also uses the example of parliamentary forums and courts toillustrate the exclusionary nature of the deliberative model. This, I suggest,rests on a flawed interpretation of Habermas’ account of communicativerationality. It also misses an important distinction Habermas makesbetween informal and formal forums of deliberation and their interrelationand thus mischaracterizes the role of communicative rationality in thedeliberative model.

3.1. The “Two-Track” Model

For Habermas, discourse theory is concerned with the “higher-level inter-subjectivity” of processes of reaching understanding that take placethrough democratic procedures or in the communicative networks ofpublic spheres. These processes of reaching agreement take place in avariety of forums, including public opinion-formation, institutionalisedelections and legislative decisions. These forums are categorised in terms ofinformal and formal processes of deliberation and together form Haber-mas’ two-track model of deliberative democracy: “Deliberative politicsthus lives off the interplay between democratically institutionalised will-formation and informal opinion-formation. It cannot rely solely on thechannels of procedurally regulated deliberation and decision-making”(Habermas 1998a, 308). The two tracks of deliberation perform two differ-ent functions.

Informal communication in the public sphere is disorganised, anarchic,and uncoordinated. It provides an unregulated space for detecting newproblems, bringing them to public awareness without the use of specialisedlanguage and suggesting ways to address them: “Because the generalpublic sphere is ‘unconstrained’ in the sense that its channels of commu-nication are not regulated by procedures, it is better suited for the ‘struggleover needs’ and their interpretation” (ibid., 314). In this way, “the com-municative structures of the public sphere constitute a far-flung network ofsensors that react to the pressure of society-wide problems and stimulateinfluential opinions” (ibid., 300). The public space is founded on a networkof associations that “specialise [. . .] in discovering issues relevant for allsociety, contributing possible solutions to problems, interpreting values,producing good reasons, and invalidating others” (ibid., 485). Only aftersuch a public struggle for recognition of issues as political can the respon-sible political authorities take up the proposals, put them on a parliamen-tary agenda and then legislate and make binding decisions in relation tothem. This is referred to as the formal track of the legislative process.

The formal track of deliberative decision-making is how informal delib-eration is made into positive law by conventional political institutions andthe organs of the state. Formal political processes also include elections,

38 Sarah Sorial


legislatures and courts. Their function is to assess ideas and solutions, andto make authoritative decisions that will be accepted by those affected:

The operative meaning of these regulations consists less in discovering andidentifying problems than in dealing with them; it has less to do with becomingsensitive to new ways of looking at problems than with justifying the selection ofa problem and the choice among competing proposals for solving it. The publics ofparliamentary bodies are structured predominantly as a context of justification. Thesebodies rely not only on the administration’s preparatory work and further pro-cessing but also on the context of discovery provided by a procedurally unregulatedpublic sphere that is borne by the general public of citizens. (Ibid., 307)

This two-track system displaces the principle locus of participation fromformal political institutions to the informal pubic sphere and provides away in which the public can come into politics. The case of domesticviolence is illustrative of how this two-track system functions. Domesticviolence was once deemed a “private” concern until feminists argued thatit was a matter of common concern, and was thus a legitimate topic forpublic discussion. Public debate raised awareness of the issue and pro-posals for addressing it were made. Political legislators took account of thisinformal debate and enacted norms that rendered spousal abuse a criminaloffence.14

There are two things to note about the two-track model of deliberation:First, it does admit of the different speaking styles that Young is concernedwith, including storytelling and narrative. In both the above examples, lawreform was initiated precisely because women were able to tell theirstories, in their own voices, in the public sphere. Second, it effects animportant shift in the nature of parliamentary and legal institutions, insofaras it shifts the legislative and decision making power from the formalinstitutions of the state and locates it in the public sphere. This shift ofpower from the state to those affected by the norms in question is one thatfeminists have long argued is necessary for achieving the aforementionedfeminist objectives, particularly since it avoids state paternalism.

14 Consider also the recent debate in Australia about radical reform to existing sexual assaultlaws. After extensive community consultation and counseling of victims of sexual violence,the NSW Rape Crisis Center (RCC) brought to the attention of legislators and the public theneed for radical law reform in this area in order to improve the complainant’s experience ofthe criminal justice system. The RCC has recommended a range of initiatives, including a“one stop” unit to provide victims with medical and forensic facilities, specialist sexual assaultcourts with specially trained lawyers and judges, and law reform in relation to consent andthe abolition of the requirement that complainants give evidence in court and be subject tocross-examination. These recommendations were devised in light of women’s experiences ofsexual assault and based on what they wanted from the criminal justice system. See RCCAnnual Report 2005–2006 at http://www.nswrapecrisis.com.au/Resources/Annual_Report_2006.pdf.



3.2. Communicative Rationality

Habermas concedes that his account of discursive rationality is embodiedin argumentative practices, but this does not mean that it will function inexclusionary ways, at least at the informal stage of deliberation. Commu-nicative rationality is defined as speech that is oriented towards reachingunderstanding and serves the following functions: First, it gives expressionto the intentions of the speaker; second, it represents a state of affairs; third,it establishes interpersonal relations with a second person. Habermaswrites:

With his speech act, the speaker pursues his aim of reaching understanding witha hearer about something. This illocutionary aim [. . .] is two tiered: The speech actis first of all supposed to be understood by the hearer and then—so far aspossible—accepted. The rationality of the use of language oriented toward reachingunderstanding then depends on whether the speech acts are sufficiently compre-hensible and acceptable for the speaker to achieve illocutionary success with them.(Habermas 1998d, 315)

The criterion for rationality here is comprehensibility; that is, a speech actis rational if it is credible in the given circumstances and if the validityclaims raised by the speech act can be vindicated further through dialogue.The rationality of a speech act thus depends on its possible justification.

Rational discourse does not, therefore, refer to strict rules of formalargumentation; instead, it refers to any attempt to reach an understandingover problematic validity claims that takes place under conditions ofcommunication. These conditions must enable the free processing of topicsand contributions, information and reasons in the public space.15 The rulesand procedures that apply to actual deliberation include that everyonewho can speak can take part in discourse, that everyone may question anyassertion, that everyone may introduce assertions, that everyone canexpress his or her attitudes, wishes, and needs, that no speaker may beprevented from exercising his or her rights and that any kind of coercion,external or internal, is prohibited (Alexy 1992, 235). Actual discourse mustalso take into account various elements of psychological and sociologicalcircumstances of the addressee of argumentation or the audience. In actualdiscourse, rationality is realised by a collectivisation of argumentation, or

15 For this reason, the discourse principle is conceived in an abstract manner to reflect thebroad scope of communicative reason and so as not to limit the kinds of issues andcontributions that can be made or the kinds of reasons that can count in each case; nor doesit specify the forms of argumentation and bargaining. All that is necessary for the discourseprinciple to function effectively as a medium for legitimation is the existence of a legal systemthat guarantees certain liberties to its citizens. Such a political system ensures that thepopulation is “accustomed to liberty,” and that citizens use this liberty not for the exclusivepursuit of personal interests, but as a form of “public reason” for the collective good. SeeHabermas 1998c, 461.

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in the context of interpersonal dialogue, rather than individual reasoningand dialogue.16

The discourse principle does not, therefore, depend on a metaphysicaland exclusionary conception of reason, as contended by feminist critiques.All it requires is that speakers know how to form grammatical sentences,and how to base their interactions on validity claims that others willaccept, or that could be, if necessary, substantiated with good reasons.Communicative action, and the discourse principle upon which it is based,thus reflect a form of reason based on argumentation rather than practicalreason. It also shifts “the burden of justifying the effectiveness of practicalreason from the mentality of citizens to the deliberative form of politics”(Habermas 1998a, 386). The normative expectation of legitimate law-making does not, therefore, lie with the rational competencies of partici-pants, but with the communicative procedures in place.

This language-theoretical approach to reason differs from the subjective-theoretical concept of practical intelligence insofar as it does not assumethat all subjects can, in one way or another, think in the same way or wantthe same thing. As Luhmann points out, for Habermas, social coordinationceases to arise out of the facts of consciousness, available to every subjectthrough self-reflection and instead arises from linguistic practices(Luhmann 1998, 159). Deriving normative content from the structures oflanguage means that there are no restrictions as to what can count as areason, and no specified forms of argumentation in the context of an actualdebate. All that is required for the deliberative model is an ability to speak;that is, to assert a position and give reasons for it. In principle, there is noreason why this cannot include the forms of expression Young refers to,such as greeting, narrative, storytelling, or emotion. In actual deliberationwe rely on all of these modes of communication to make an argument orto persuade others of a course of action. Communicative rationality doesnot require a particular style or argumentation or speaking: It only requiresan ability to give reasons for one’s position. Just because actual delibera-tion, in fact, often privileges certain styles of speaking over others, it doesnot mean that in principle, it does this. Nor does it mean that thesespeaking styles are appropriate at the formal level of deliberation.

While the informal stage of deliberation can admit of different speakingstyles and modes of communication, formal institutions such as parliamentsand courts do not. This, however, does not render the deliberative modelexclusionary in the way Young contends. As Benhabib points out, greeting,storytelling, and rhetoric cannot become the public language of institutionsand legislatures in democracy because in order to attain legitimacy, demo-cratic institutions require that they articulate the justifications for their

16 Cf. Karl-Otto Apel’s account of discourse philosophy, which also rejects “monological”reasoning in favour of interpersonal reasoning and argumentation. See also Weinberger 1992.



actions and policies in discursive language that appeals to commonlyshared and accepted public reasons. The attempt to introduce more partial,affective and situated modes of communication could have the undesirableconsequence of inducing arbitrariness in the law-making process. Rhetoricand emotion might cause people to act without having to give an accountof the reasons as to why they chose a particular course of action overanother. Benhabib writes:

[I]n short, some moral ideal of impartiality is a regulative principle that shouldgovern not only our deliberations in public but also the articulation of reasons bypublic institutions [. . .] without such a normative principle, neither the ideal of therule of law can be sustained nor deliberative reasoning toward a common goodoccur. (Benhabib 1996, 83)

The two-track system not only ensures that all those affected by a norm areincluded in informal debate, but also effects a fundamental shift in thenature of legal and political institutions themselves. The contribution ofwomen to the law-making process ensures that the issues that affect themare placed on political and legal agendas in ways that reflect women’sinterests, rather than men’s. Consider, for example, the effects of thisinstitutional shift in relation to the debate about abortion that took place inAustralia in 2006 in the context of whether Australian women should haveaccess to the abortifacient RU486. As with all debates about abortion inAustralia, parliamentary representatives were permitted to vote accordingto conscience, in the form of a “conscience vote” or “free vote”; that is, avote that is not in line with party policy. Of interest for my purposes is theway women parliamentarians affected the outcome.

Prior to the 2006 decision, many women parliamentarians identified theconscience vote in relation to abortion as the major obstacle to law reform.Women argued against the continued framing of abortion as an issue ofconscience, and instead argued that political parties should adopt a specificpolicy, and subject its members to the ordinary processes of party disci-pline on the issue. According to Pringle, without party initiation andbacking, women thought that no reform of abortion law would be con-templated or successful (Pringle 2007). This was primarily on account ofthe limited number of women in parliament. The conscience vote onabortion meant that men, based purely on their religious and moralconvictions, made laws in relation to issues that affected women.

The debate that occurred in 2006 and its outcome were markedly differentfrom the one in 1979. According to Pringle, when the House of Represen-tatives voted against amendments to abortion law in 1979, there were nowomen in the House; in 2005, the gender balance had changed signi-ficantly in both Houses. Seventy per cent of Liberal/National Party womenvoted in favour of the Bill and only two Labour women Senators votedagainst it. The group most opposed to the Bill consists of conservative

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Liberal/National Party men, with only 40% of the total members of thisgroup in parliament voting in favour of the Bill. Now there are greaternumbers of women in parliament, who—across party lines—are over-whelmingly in favour of easier access to abortion and broadly pro-choice inregard to related issues, reflected not only in a new alignment in parliament,but in the scope and extent of reform that is possible when women are givenan opportunity to contribute to the law-making process (ibid., 17). Thedeliberative processes in this particular case marked an institutional shift orchange in relation to this contentious issue.

4. The Problem of Consensus

Young and Warnke have argued that Habermas’ account of deliberationwill inevitably efface differences because of its emphasis on universalconsensus. According to Warnke, while we can give arguments for whycertain measures are proportionate to a given end, assent to such argu-ments presupposes shared values and a shared understanding of the issuesthat often simply does not exist. This is especially the case for controversialissues such as surrogacy and abortion. I suggest, however, that thiscriticism fails to distinguish between culture and politics, and betweenethics and morality.

Warnke is right to point out that given the diversity of worldviews andconceptions of the good that exist in pluralist societies such as ours, andgiven the differences in our interpretations of abstract principles such asliberty and equality, it is often difficult, if not impossible, to come to anagreement about certain contentious issues. Be that as it may, decisions stillneed to be made about the regulation of practices such as surrogacy andprocedures like abortion, notwithstanding irresolvable value conflictsbetween people. To make sense of this dilemma—the dilemma of how toboth agree and disagree with one another—we need to distinguishbetween the level of cultural and social dialogue, or ethical decision-making, and the level of democracy or pragmatic decision-making.

For Habermas, in the course of any deliberation about pragmatic legalissues, the question “what ought we to do” will invariably raise a numberof ethical-political questions. These questions emerge from the conflictingpreferences and interests that will emerge in the course of deliberation.They require the particular community to clarify their collective self-understanding or shared forms of life that are found to be opaque and toreinterpret their traditions and values:

Serious value decisions result from, and change with, the politicocultural self-understanding of a historical community. Enlightenment over this self-understanding is achieved through a hermeneutics that critically appropriatestraditions and thereby assists in the intersubjective reassurance or renovation ofauthentic life orientations and deeply held values. (Habermas 1998a, 160)



The type of deliberation required for addressing these ethical-politicalconcerns differs from pragmatic deliberation insofar as it is concerned withboth a description of identity-shaping traditions and the normative projec-tion of a particular way of life. The deliberation is concerned with theexistential question of who we collectively are and who we would like to be.

But these dialogues about our collective identity are not necessarily thesame as what we want from the state. Ethical dialogue, as Chambers pointsout, does not design, implement and adjudicate policy. Rather, theseconversations contribute to broad and informal opinion and identityformation, which influence the type of policy democratic citizens mightsupport. Chambers writes: “The crucial democratic role that interpretativeconversations play is not so much in directly shaping public policy butrather in shaping, reshaping, criticizing, and unmasking the cultural under-standings that underpin public policy” (Chambers 2000, 79). The importantpoint to note here is that ethical conversations do not have a definable end;they are ongoing, even once the decision has been made. The politicaldecision to give Australian women access to RU486 did not end the debateabout abortion; nor will specific laws in relation to surrogacy enable us toreach consensus about our interpretations of liberty and equality. Never-theless, decisions about these issues must be made, and they must be madein a way that is just, or that is in the interests of all those affected.

Questions of justice take the same form as moral questions insofar asthey share the same semantic form of categorical or unconditional impera-tives. That is, they require impartial judgment, and must meet the test ofuniversalizability. This is determined by assessing whether a particulardecision can be regarded as equally good for everyone affected: “Anadequate justification of policies and laws must, however, consider yet afurther aspect, that of justice. Whether we should want and accept aprogram also depends on whether the corresponding practice is equallygood for all” (Habermas 1998a, 161). For Habermas, true impartiality refersto that standpoint from which one can generalize norms that can count onuniversal assent because they embody an interest common to all affected.It requires that all those affected adopt the perspectives of all others in thebalancing of interests (Habermas 1990, 65).

There is, then, an important distinction between questions of ethics andquestions of justice that is often blurred in criticism of Habermas’ delib-erative model. Habermas concedes that even sufficiently inclusive publicdiscussions have shown that contested issues such as abortion and eutha-nasia cannot be neutrally framed in relation to worldviews or ideologies.What we are faced with in these cases is a value conflict that cannot beresolved either by discourse or by compromise:

In a constitutionally organized pluralistic society, such an ethically controversialissue may not be regulated under the ethically permeated description of a

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self-understanding that, from the perspective of the universe of fellow citizens, isjust one among several collective self-interpretations (even if it is that of themajority culture). (Habermas 1998c, 392)

Nevertheless, decisions have to be made about the regulation of practiceslike surrogacy and abortion, notwithstanding irresolvable value conflictsbetween people.

It is here that the distinction between questions of justice and questionsof the good life comes into play. Questions of the good life are ethicalquestions. They are questions of who we are and would like to be.Questions of justice, by contrast, concern “what is equally good for all.”This level of abstraction requires a shift in perspective:

each participant must turn away from the ethical question of which regulation isrespectively “best for us” from “our” point of view. They must, instead, take themoral point of view and examine which regulation is “equally good for all” in viewof the prior claim to an equal right to coexist. (Ibid., 393)

The point of such a shift in perspective is to enable parties to arrive at amorally acceptable solution—a regulation acceptable to each party for thesame reasons—but that also leaves the value conflict unresolved.

For example, I may have a strong ethical position about the immoralityof abortion, but a shift in perspective would enable me to realize thatmaking my position legally binding is not in the equal interests of all.Making my position binding on everyone would only force abortionunderground where it cannot be regulated. This would compromise thesafety and health of women seeking abortions, and impose additionalemotional and psychological burdens on them. There are women whochoose to have abortions for a variety of legitimate reasons, and havingmade this difficult choice, they should have easy access to safe abortion.That is, I may disagree with abortion per se, and still maintain that abortionshould be legal, safe, and readily available to women because this wouldbe in the equal interests of all. Habermas writes:

“We” (for instance, as Catholics confronted by a “liberal” abortion law) maycontinue at an ethical level to abhor the legally permissible practice of others as wehave in the past. Instead, what is legally required of us is tolerance for practices thatin “our” view are ethically deviant. (Habermas 1998c, 393)

Habermas accepts that agreement over abstract norms such as the equalright to coexist does not provide a basis on which conflicts could beresolved in principle. Nor does it contain proscriptions for their applicationto specific situations. As Warnke points out, the norms at issue in thedebate about surrogacy contracts—the norms of liberty and equality—areagreed to by all those concerned; however, this agreement over abstract



norms does not yield rights answers. But to demand that it can or shouldyield right answers to these debates is to confuse political and legalquestions with ethical ones. The idea that we cannot (and probably neverwill) reach agreement over controversial issues because of intractabledifferences in value orientations and understanding assumes that we eithermust agree over these issues, or that they are essentially irresolvable. If weadopt the former view (often attributed to Habermas), then we are guiltyof subsuming difference and making decisions based on the majority(male, white, and privileged) view. If we adopt the latter view, then politicsbecomes impossible. Distinguishing between the ethical and the political inthe way Habermas does keeps our ethical disagreements alive, but alsorecognizes that despite our ongoing lack of consensus, decisions have to bemade, and they have to be made in such a way that they can be consideredlegitimate by all those concerned.

Habermas’ deliberative model is not therefore inherently masculine orexclusionary in the way some feminist thinkers have claimed. The require-ment that all those affected by a particular norm participate in the debateabout that norm not only offers a way of overcoming the equality/difference dilemma that has preoccupied much feminist thinking, but alsonecessitates an important institutional shift. This shift is one that feministshave long argued is necessary for any substantive changes to the status ofwomen’s rights. In this sense, Habermas’ model may be closer to feministconcerns than feminists have traditionally conceded.

Faculty of ArtsThe University of Wollongong

Wollongong NSW 2522Australia

E-mail: [email protected]

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Habermas, Feminism, and Law: Beyond Equality and Difference

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