AGREEMENT AND CONSENT IN KANT AND HABERMAS: CAN KANTIAN CONSTRUCTIVISM BE FRUITFUL FOR DEMOCRATIC THEORY? 1 CRISTINA LAFONT One of the most fruitful legacies coming out of Kant’s practical philosophy within the past century has been the development of so-called Kantian construc- tivist approaches in moral theory 2 such as those of Rawls and Habermas. What makes these approaches most attractive is their promise to illuminate the inter- nal connection between the autonomy of agents and the validity of norms. The underlying idea behind this view is that the validity of norms depends on the reasonable agreement of those to whom the norms apply. This idea captures two correlative aspects of the notion of autonomy, namely that forcing anyone to act against her own reason is wrong and thus that the rightness of norms cannot lie beyond the possible reasonable agreement of those who are subject to them. The centrality of the notion of free and reasonable agreement makes Kantian con- structivism seem particularly apt for an extension from moral into legal con- texts, because one and the same notion appears to be able to account for two dimensions of the validity of legal norms: their justice (or substantive correct- ness), on the one hand, and the legitimacy of their enforcement, on the other. Moreover, regarding the latter, it seems natural to assume that a criterion of democratic legitimacy can be straightforwardly extracted from constructivism, since the distinctive feature of democracy is precisely that it is based on the “consent of the governed.” In fact, in recent years several versions of a principle 1 An earlier version of this essay was published in S. Bertea and G. Pavlakos, ed., New Essays on the Normative Dimension of Law (Oxford: Hart Publishing, 2011) 229–45. 2 I use the expression “Kantian constructivism” to refer to the approaches of authors such as Rawls and Habermas, but I do not thereby endorse their antirealist interpretation of Kant’s moral philosophy. In my view, the most plausible way to interpret Kantian constructivism is as a weak form of moral realism. On this issue see C. Lafont, “Moral Objectivity and Reasonable Agreement: Can Realism Be Reconciled with Kantian Constructivism?” Ratio Juris 17/1 (2004): 27–51. © 2012 The Philosophical Forum, Inc. 277