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187 Legitimation Problems in the Modern State

because it defines democracy by procedures that have nothing to
do with the procedures and presuppositions of free agreement and
discursive will-formation. The procedures of democratic domi-
nation by elites are understood in a decisionistic manner, so that
they cannot be linked with the idea of justification on the basis
of generalizable interests. On the other side, normative theories of
democracy are not to be faulted for holding fast to this procedural
legitimacy. But they expose themselves to justified criticism as
soon as they confuse a level of justification of domination with
procedures for the organization of domination. If these are not
kept separate, one can easily object—what Rousseau already knew
—that there never was and never will be a true democracy.
The distinction between grounds for the validity of domination
and institutions of domination evidently raises difficulties in view
of the modern state. P. von Kielmannsegg, for instance, believes
that agreement and consent may be made conditions for the
legitimate exercise of domination; but they cannot be the ground
of legitimacy because legitimacy arises only through “recourse to
what is unconditionally valid.’’ 2? Kielmannsegg thereby misses
the modern point of the transposition of legitimate power to a
reflective level of justification. Now only the procedures and
presuppositions of agreement enjoy unconditional validity; an
agreement counts as rational, that is, as an expression of a general
interest, if it could only have come to pass under the ideal con-
ditions that alone create legitimacy. A similar misunderstanding
is present in the remarks made by Wilhelm Hennis [who spoke
prior to Habermas at the meeting for which this paper was pre-
pared}. According to him the legitimacy of the exercise of domi-
nation in the modern state rests on “penultimate grounds’; on
this construction the term “ultimate grounds” would signify only
limits of legitimate domination. Hennis is thinking, of course,
of the privatization of the powers of faith with which the Wars
of Religion were ended and of all that today sails under the flag of
pluralism (a flag that conceals more than it reveals). But what
did the religious neutralization of the state legitimize, if not
(among other things) the discourses that were carried out from
Hobbes through Hegel, that is, arguments which provided rea-
sons or grounds [for holding} that such regulations were in the