Jürgen Habermas overemphasises the role of the public sphere in his theory of law and democracy

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Jürgen Habermas (born June 18, 1929 in Düsseldorf) is a German philosopher, political scientist and sociologist in the tradition of critical theory. His work focuses on the analysis of advanced capitalist industrial society and of democracy and the rule of law in a critical social-evolutionary context, and contemporary politics.
He is best known for his concept of the public sphere. He developed a theoretical system committed to disclosing the possibility of reason, human liberation and rational-critical communication embedded in modern liberal institutions and in the human capabilities to communicate, deliberate and pursue rational interests. Habermas's theory distinguishes itself from the rationalist tradition by locating rationality in structures of interpersonal linguistic communication rather than in the structure of either the cosmos or the knowing subject.

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[...] For the Institute, this constituted a new stage of history, marked by fusion between the economic and political spheres, a manipulative culture industry, and an administered society, characterized by a decline of democracy, individuality, and freedom.[26] Jürgen Habermas's asks what are the social conditions for a rational- critical debate about public issues conducted by private persons willing to let arguments and not statuses determine decisions. The question, Habermas shows, is a crucial one for democratic theory.[27] Habermas's study of the public sphere has been subjected to intense critical argumentation which has clarified his earlier positions, led to revisions in later writings, and has fostered intense historical and conceptual research into the public sphere itself. [...]

[...] Salt Lake City: University of Utah Press. (1988) Habermas, J., The Inclusion of the Other: Studies in Political Theory. Massachusetts Institute of Technology Press 1998 Habermas, J., The Legitimation Crisis of Late Capitalism. Translated into English by T. McCarthy, Beacon Press 1975 Habermas, J., The Structural Transformation of the Public Sphere. Translated into English by Thomas Burger. [...]

[...] Yet, from his earliest writings on the public sphere to his most recent writings on law, politics and morality, Jürgen Habermas has been concerned to rethink the foundations of democratic theory. Though there have been shifts in his conception of the appropriate political institutions and processes, his basic normative ideas have remained largely constant. Despite the limitations of his analysis, Habermas is right that in the era of the democratic revolutions a public sphere emerged in which for the first time in history ordinary citizens could participate in political discussion and debate, organize, and struggle against unjust authority, while militating for social change, and that this sphere was institutionalized, however imperfectly, in later developments of Western societies. [...]

[...] Five assumptions that are central to Habermas's conception of the public sphere must be called into question. These are as follows: - The assumption that it is possible for interlocutors in a public sphere to bracket status differentials and to deliberate as if they were social equals; the assumption, therefore, that societal equality is not a necessary condition for political democracy. The claim to open access in particular was never accomplished.[19] - The assumption that the proliferation of a multiplicity of competing publics is necessarily a step way from, rather than toward, greater democracy, and that a single, comprehensive public sphere is always preferable to a nexus of multiple publics. [...]

[...] Habermas fails to adequately explicate the precise institutional and normative functions of the public sphere within constitutional democracy of organized capitalism. The capacity of the public sphere to solve problems on its own is limited. While his ideal of democracy is important, in the absence of a unifying general interest, it can only improve representation in compromise, not achieve rational-critical debate. Under altered conditions of late-twentieth-century “welfare state mass democracy,” the bourgeois or liberal model of the public sphere is no longer feasible. [...]