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This is a copy of a chapter published in Law and Social Theory, Second Edition, edited by Reza Banakar and Max Travers. Oxford, UK: Hart Publishing, September 2013.
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Please cite as: Deflem, Mathieu. 2013. “The Legal Theory of Jürgen Habermas.” Pp. 70-95 in Law and Social Theory, Second Edition, edited by Reza Banakar and Max Travers. Oxford, UK: Hart Publishing.
The work of the German
philosopher and sociologist Jürgen Habermas counts among the most significant
achievements in social theory of the past several decades. Since Habermas’s
writings have reached the public from the early 1960s onwards, his work has
essentially combined philosophical aspirations with sociological interests in
developing a theory of societies in the modern and late-modern age while also
retaining a critical attitude towards the problems those societies face. This
dual ambition of Habermas’s work is at once one of its most appealing
characteristics and one of its central difficulties, especially in terms of its
adequate reception, as the sciences have developed such that increasing
specialization, even within delineated fields of inquiry, has become the order
of the day. Further, it is now a truism to note that the work of Habermas is
not only ambitious in scope and its reliance on and relevance to a multitude of
intellectual traditions, but also that it is, as a result, complex and not
always easy to understand. This characteristic is somewhat ironic given that
mutual understanding is one of the most critical objectives of Habermas’s work,
yet it should also not be considered an insurmountable obstacle towards the
analysis and application of his thought. This chapter hopes to fulfill a
critical task by laying bare the essential elements of Habermas’s theories on
law and thereby guide the reader towards a more detailed and comprehensive
study of Habermas’s thought as it is relevant to the interests of students of
law working in various disciplinary traditions.
It is fortunate for scholars interested in the role of law in modern society
that Habermas has devoted several of his writings explicitly to the study
of law and the problems associated with law in contemporary society. Rather
than having to construct a Habermasian theory of law congruent with his
writings on society, therefore, a specific perspective on law can be uncovered
in the work itself. Still, the task is not entirely straightforward as there
has been an evolution in Habermas’s thinking, both in terms of the aspirations
and direction of his work, in general, as well as in terms of his thought on
law, in particular. This chapter will situate Habermas’s ideas on law within
the background of his broader work in social theory and philosophy. Given its
prominence in contemporary social science, the humanities, and philosophy,
Habermas’s work has been greeted with numerous secondary analyses and
commentaries, of varying degrees of usefulness, a literature that I will
briefly discuss at the end of this chapter. More importantly, this contribution
will focus on explicating the ideas Habermas has introduced with respect to the
study of law. In keeping with the objectives of this volume to provide an
introduction into the role of social theory in the study of law, a critique of
Habermas’s ideas is beyond the scope of this chapter. Adequately situating the
legal theory of Habermas in the broader contest of his sociology and philosophy
is the central objective of this chapter.
1. Critical Theory
Jürgen Habermas was born
in Düsseldorf, Germany, on 18 June 1922 and spent most of his childhood in
nearby Gummersbach.[1] Upon his graduation from high school (Gymnasium) after
the end of World War II, he studied at universities in Göttingen, Zürich, and
Bonn from 1949 until 1954 when he earned a doctorate in philosophy on a
dissertation about the German philosopher Friedrich Schelling. After a two-year
period of work as a freelance journalist, Habermas recommenced his academic
career by joining the Institute for Social Research at the Johan Wolfgang Goethe
University in Frankfurt.
The Institute for Social Research (Institut für Sozialforschung) had been
privately founded by Felix Weil, the son of a wealthy industrialist, in 1923,
with the aim of providing an intellectual home to a multi-disciplinary group of
social scientists and philosophers working in the tradition of Karl Marx.[2]
Shortly after the Nazi seizure of power in 1933, the Institute was shut down by
the Gestapo. Several Institute members (some of whom were also Jewish) moved abroad,
especially to New York City, where they continued their activities. After the
war, the Institute was refounded in Frankfurt in 1951 and again became the
central home to the intellectual tradition now commonly known as Critical
Theory. The perspective is represented by Max Horkheimer, Theodor Adorno, Erich
Fromm, Otto Kirchheimer, and Herbert Marcuse, amongst others, followed by a
younger generation of scholars, among whom Habermas became a key figure after
he had initially taken up an assistantship with Adorno.
The perspective of Critical Theory that was represented by the Frankfurt
School, as the Institute’s members came to be collectively known, was
originally introduced by Horkheimer in 1937 as a counterpart to so-called
Traditional Theory.[3] Striving towards a reinterpretation of Marxian thought
and the application of its central tenets to the social-scientific analysis of
modern society, Horkheimer defined Critical Theory as an intellectual bridge
between theory and praxis, between knowledge and action. The perspective thus
rejected a simple view of value-freedom in social science and instead sought to establish intimate connections between knowledge and science, on the one hand,
and emancipation and democracy, on the other.
Habermas’s position in the tradition of Critical Theory is more than
interesting to note because it betrays some of the enduring aspirations and
tensions in his work. When Habermas was developing the ideas for his
Habilitationsschrift (the post-doctoral dissertation required of academics in
Germany), he met with resistance from his supervisors at Frankfurt, especially
Horkheimer. Rather than revise his work, Habermas decided to take it elsewhere
and defended the dissertation successfully at the University of Marburg under
the direction of the political scientist Wolfgang Abendroth. In this study,
which remains to date one of Habermas’s most distinctly sociologically oriented
empirical works, Habermas argues for the role of democracy in the development
of modern Western societies.[4] Specifically, he traces the 18th-century
development of a bourgeois public sphere in which debates were held concerning
important matters of politics and culture, both in face-to-face meetings in
cafes and coffee houses as well as through the medium of print. During the 20th century,
Habermas argues, the critical potentials of the public sphere are gradually
eroded by its commercialization into a mass society of public opinion.
The theme of democracy that is central to the transformation of the public
sphere is one that has stayed with Habermas throughout his career. After two
years of teaching at Marburg and Heidelberg, he returned to the Goethe
University at Frankfurt in 1964 as professor of philosophy and sociology.
Between 1971 and 1983, he was co-director of one of Germany’s Max Planck
Institutes, a series of government-funded but otherwise independent research
institutes, in Starnberg. Thereupon he returned to Frankfurt as a philosophy
professor until his retirement in 1994, since when he has continued to be a
prolific writer and participant in various public and academic debates.
Though distinctly placed in the tradition of Critical Theory and Marxism,
Habermas’s work has come to enjoy a reputation that also stands by itself.[5]
Aside from his work on the public sphere, Habermas made an impact early on in
his career through his epistemological writings on the relationship between
theory and praxis.[6] Most famous in this respect is his conceptualization of
various scientific traditions on the basis of three knowledge-interests: (a)
the technical interest of the empirical sciences oriented at an effective
manipulation of the natural environment; (b) the practical interest of the
hermeneutical tradition oriented at the proper interpretation of meaning; and
(c) the emancipatory interest of the critical social and human sciences
oriented at analysis as well as critique and social change. Habermas situates
his work within the latter tradition, as can be expected from a neo-Marxist
scholar. Equally significant is that his work immediately took on, besides a
deeply embedded philosophical component, also a distinctly sociological
interest in the analysis of society.
Focusing attention towards Habermas’s construction of a systematic theory of
society from the late 1960s onwards and especially during the 1970s, what is
most striking is that Habermas gradually begins to diverge from the Marxian
preoccupation with labor and economy towards the inclusion of the categories of
interaction, language, and democracy.[7] In other words, what Habermas adds to an orthodox Marxism focused on the control over nature (as a
subject-object relationship) is an expanded view that also considers social
interactions (among subjects). This interest towards the interactional
dimension of social life was already present, in embryonic form, in Habermas’s
work on the public sphere, but it would now be gradually yet resolutely pursued
in a direction that took Habermas not only away from a more narrowly conceived
neo-Marxism but also from an epistemologically preoccupied philosophy towards
linguistic theories of communication. Even more interesting in the present
context is that Habermas moved from philosophy to the very center of debates in
sociological theory, specifically by relying on the dichotomies between, on the
one hand, action-theory, communicative action, and lifeworld and, on the other
hand, systems theory, strategic action, and system.[8]
Before explaining the systematics of where this intellectual development would
ultimately take Habermas, it can be recognized from the outset that Habermas’s
relationship to Marx and the Marxists has remained a matter of continued
contention just as much as has been his relative distance and closeness
vis-à-vis the traditions of (continental) philosophy and (theoretical)
sociology. What is important for the purposes of this chapter, is that Habermas
not only moves from a theory of science via an inquiry on the logic of the
social sciences to a theory of society, but also from an initial and somewhat
uncertain and unsystematically developed interest in interaction and language
to a comprehensive theory of society that is partially grounded in a theory of
speech. Having clarified the epistemology of Critical Theory in connection with
an emancipatory interest and subsequently a methodological interest in the
language-theoretical foundation of the social sciences, Habermas thus accomplished
a move towards the development of a sociological and philosophical perspective
that he judged useful for both the study and critique of society.
2. The Theory of Communicative Action
Habermas’s work towards a
new social theory culminated in his impressive magnum opus, The Theory of
Communicative Action, which was originally published in German in 1981 as a
two-volume publication.[9] In the formal construction of this work, Habermas
relies on the model presented by Talcott Parsons in his 1937 The Structure
of Social Action[10] to systematically develop a theory of society with
reference to a group of more and less recent writers in social theory. Since
the resulting theory of communicative action has remained central to Habermas’s
writings until this day and also contains an important contribution to the
study of law in modern society, it is worthwhile to devote some time to
explaining the basic contours of this aspect of Habermas’s sociological theory
on the basis of a brief summary of The Theory of Communicative Action.
Habermas begins the exposition of his theory by postulating the problem of the
rationality of action or the rationalization of society as the central subject
matter in sociological theory, going back to the great works of the sociological
classics. Sociology’s special place is in this respect secured because the
discipline has retained an interest in society as a whole, even when the
differentiation of society is a central aspect of the development to modernity,
bringing about a specialization within sociology to focus on the various
institutional components of differentiation (economy, polity, law, culture).
This comprehensive perspective is informative, of course, of a proper
understanding of the very foundation of the sociology of law, approached from
whichever theoretical tradition, as the scientific study of law in
society, rather than a jurisprudential misreading of law and
society.[11]
Habermas differentiates between two concepts of rationality: (a) cognitive-instrumental
rationality pertains to conduct that is oriented at the successful realization
of certain goals; and (b) communicative rationality is applicable to
interactions whereby the actors are oriented towards mutual understanding.
Importantly, Habermas argues that social action cannot be curtailed towards
either conceptualization of rationality, but that the two forms of rationality
must be ideal-typically understood and can thus be variably applicable to
various social formations at different stages of development.
Habermas considers it an exclusive characteristic of human interactions that
they are symbolically mediated on the basis of the use of language through
speech. Foregoing a more detailed presentation of some of the involved issues of
linguistic theory, Habermas focuses on the claims that are implied in the
actual use of language or speech-acts among actors as they are oriented towards
reaching understanding. Even though consensus is not a necessary outcome of
communicative action, Habermas suggests that speech-acts, which are
sufficiently well-formed so that they are comprehensible, inevitably imply
claims on three levels: (a) a claim that the speech-act is true as
corresponding to or otherwise harmonizing with a state of affairs; (b) that the
speech-act is right with respect to a specified or implied normative context;
and (c) that the speech-act is expressed truthfully by the speaker. Habermas
argues that communicative actions --which are expressed either verbally or by
means of an equivalent such as by means of gestures or in writing-- imply that
all the claims are accepted or, conversely, that any one or more of the claims
will be brought into question and thus become the subject matter of additional
communications concerning the validity of implied claims. Habermas refers to
this order of communication as discourse and thereby differentiates: (a) the
theoretical discourse concerning truth; (b) the practical discourse on
rightness; and (c) the expressive and evaluative discourse concerning
authenticity and sincerity.
Habermas notes that the validity of speech-acts is not routinely questioned
because they take place within the given context of what he calls the lifeworld
(Lebenswelt). Extending from established phenomenological traditions of
German philosophy, the concept of lifeworld is defined by Habermas as referring
to the whole of cultural values, social norms, and socialization patterns that
often remain unquestioned among actors and that, in fact, enable interactions
to take place. To explain the specific development or rationalization of modern
societies, Habermas makes two important observations. First, the
rationalization of the lifeworld has brought about an internal differentiation
around three central functions: (a) cultural reproduction for the transmission
of values; (b) social integration for the coordination of interactions through
norms; and (c) socialization for the formation of personal identity. Second, an
additional level of societal differentiation has to be introduced because
certain domains of social life have ‘uncoupled’ from the lifeworld on the basis
of non-communicative or ‘delinguistified’ media of interaction. To
conceptualize these relations, the interactionist perspective of the lifeworld
needs to be complemented with a systems-perspective that focuses on the
cognitive-instrumental rationality orientation at a successful realization of
specified objectives. Specifically, Habermas argues, in the context of Western
societies an economic system of capitalism and a political system of a
bureaucratic state have developed which function, respectively, on the basis of
money and power. The rationality of monetary transactions in the capitalist
economy is such that only productivity criteria are considered, whereas power
in the bureaucratic state is oriented at effectiveness in political processes
of decision-making.
Similar to the role of communicative action in the lifeworld, Habermas argues
that cognitive-instrumental action in the economic and political system need
not necessarily bring about problematic consequences. However, social problems
do ensue when the lifeworld is intruded upon by society’s systems so that
communicative actions are redefined in instrumental term. Actions oriented at
mutual understanding are then perverted into conduct instrumentally aimed at
success. Habermas argues that the central problems of late-modern societies are
precisely of this kind. Modern-day social ills, such as a loss of meaning,
anomie, and alienation, exist as a result of a colonization of the lifeworld by
the economic and political systems.
Understood from the viewpoint of sociological theory, Habermas’s perspective of
communicative action and the dual nature of modern society in terms of lifeworld
and system merges insights from interactionist perspectives, on the one hand,
with systems-theoretical theories, on the other. As such, Habermas can rely on
the great works of otherwise seemingly very diverging authors, such as Max
Weber and Emile Durkheim as well as Talcott Parsons and Karl Marx. Especially
from the viewpoint of a critical theory, Habermas’s two-level perspective of
society should be able to demonstrate its value, beyond its theoretical
consistency, as a theory of modernity that can be fruitfully applied in the
analysis of concrete social formations. In his book The Theory of
Communicative Action, Habermas indeed undertakes such an analysis and
thereby also specifies a sociological theory of law.
3. Law as an institution and Law as a medium
The theory of
communicative action is complex as well as complicated by any standard and,
especially so, in view of its abstract orientation and reliance on multiple
traditions of social theory. It is interesting to note in this respect that Habermas
suggests in his preface to The Theory of Communicative Action that the
reader who wonders about the empirical relevance of his work could first read
the concluding chapter of the book, the chapter in which Habermas applies his
theory to a concrete analysis and introduces a sociological perspective of
law.[12] Interestingly, Habermas prefaces this discussion by stating that the
area of law presents no special methodological problems because, he writes,
“The development of law belongs to the undisputed and, since Durkheim and
Weber, classical research areas of sociology.”[13]
Habermas’ concept of law refers at the most general level to an
institutionalization of norms.[14] Thus, on a philosophical level, Habermas
posits an intimate connection between law and morality, whereby he maintains
that law, even in highly rationalized societies, retains a critical normative
dimension. Despite a trend towards technocratization on the basis of
instrumental criteria of efficiency, modern law retains a need for moral
justification, more specifically on the basis of procedural criteria that allow
only for the force of the better argument through communication and debate. In
other words, Habermas argues that the modern rationalization of law in
purposive-rational terms, such as Max Weber already formulated it, implies only
a displacement, but not an elimination of moral questions. Modern law is
characterized by conditions of both legality and legitimacy and the latter is
not exhausted by the former. In simple terms, it is not because something is
legal that it is accepted as just. As such, Habermas’s work on law opens the
way for an important philosophical component to determine the rational
foundation of just law or the connection between law and rights.
Additionally, Habermas argues that law in modern societies functions and
develops in ways that need to be sociologically uncovered. In the
differentiation of system and lifeworld, law fulfills a central function by
legally institutionalizing the independent functioning of money and power in,
respectively, the economic and administrative systems. This function is
fulfilled, more specifically, in private and public law. The significance of
the role of law is additionally shown from the fact that political authority
has historically evolved from judicial offices. In a lasting sense relevant to
contemporary societies, the special connection between law and politics is
confirmed by the fact that legislation is a political function and that
political authority, as Weber already argued, is legal-rational.
In the concluding chapter of The Theory of Communicative Action,
Habermas conducts a rather detailed historical investigation of the development
of law, which enables him to show the empirical value of his theory and in the
course of which he develops a more comprehensive sociology of law.[15]
Specifically, Habermas relies on the concept of juridification (Verrechtligung)
to suggest the development of the welfare state. In general terms, juridification
refers to an increase in formal or written law, either in the form of an
expansion of law of hitherto unregulated conduct or in the form of a
densification of law in the form of a more detailed regulation of conduct that
was already legally regulated.
Habermas analyzes juridification processes in the development towards the
welfare state in the history of the European state system and suggests four
waves of juridification.[16] First, in the period of the bourgeois state that
developed in pre-19th century Europe, a capitalist economy begins to evolve
whereby a new class of industrialists can gradually secure legal rights to
conduct business in the market, while leaving the absolute powers of the
sovereign ruler in the political sphere untouched. Civil law in this period
thus guarantees freedom rights and obligations in the economic market to
regulate contractual relations. Second, during the 19th-century
development of the constitutional state, the private rights of citizens to
life, liberty, and property are secured over and against the rights of the
political sovereign. In other words, freedom rights are now legally guaranteed
against the intrusion of political rulers, who are held to economic laissez-faire
policies. Third, as the democratic-constitutional state system develops under
influence of the ideas of the French Revolution, citizens can legally ascertain
rights to also participate in the shaping of their government by means of the
institutionalization of a democratic election process. Thus, juridification
entails a legal institutionalization of social rights in the political system.
Fourth, with the development of the democratic welfare state during the 20th century,
welfare laws are passed to secure that certain problems brought about in
capitalist society are responded to on the basis of principles of fairness and
equity to guarantee that certain basic needs are met. In this final stage, in
other words, legally guaranteed social rights react against an unrestrained
functioning of the market.
Habermas outlines this history of juridification to show how welfare laws can
be interpreted in terms of the institutionalization of rights of the lifeworld
vis-à-vis the economic and political systems. Welfare laws originate from increasing
demands of the lifeworld to act within and react to the independent workings of
media-controlled systems. Both individual as well as social rights are thereby
to be guaranteed on the basis of a balance of the principles of freedom and
equality. The development of welfare law, however, Habermas notes to bring
about certain unintended effects.[17] While welfare law is aimed at alleviating
social ills that are brought about by the functioning of the capitalist
economy, the manner in which these problems are legally responded to are framed
in terms that accommodate the economic and administrative systems. The legal
form in which rights are secured in itself thus endangers some of those rights.
Habermas specifies four problems in particular: (a) welfare laws guarantee
entitlements that are understood as individualized claims even when the
addressed problems are of a collective nature; (b) claims need to be
successfully petitioned under formally specified conditions; (c) claims are
implemented in ways that suit the needs of large bureaucratic organizations
rather than the people involved; and (d) entitlements often take on the form of
monetary compensation. In other words, the rights that welfare laws guarantee
are defined and implemented in terms of the media of money and power.
In the original formulation of his sociology of law in The Theory of
Communicative Action, Habermas interprets the ambivalent implications of
the development of welfare law on the basis of a dual concept of law.[18] On
the one hand, law as an institution refers to legal norms that remain in need
of justification on the basis of the intimate connection of law to morality.
Habermas in this case mentions certain areas of law that are closely related to
deeply held belief systems, such as criminal law. On the other hand, Habermas
argues that law can also function as a medium, in which case it suffices that
legal regulations operate effectively by means of a specified procedure, such
as in the case of business and administrative law. Whereas law as an
institution belongs to the lifeworld, law as a steering medium is relieved of
substantive justification because it operates in the political and economic
systems on the basis of functional needs.
As the case of welfare law shows, law as a medium can also concern areas of
society that properly belong to the lifeworld. For example, the collective
problems of structural unemployment and of old age are in welfare laws
redefined as individualized claims to be met by monetary settlements. Habermas
discusses similar problems in (German) family and school law.[19] In these
areas, basic rights are guaranteed on the basis of principles of the welfare of
the child and the equal opportunity for all concerned (student, teacher, husband,
wife, parent, child). However, to legally secure these rights, family and
school have to be redefined and formalized in terms that allow for bureaucratic
intervention and judicial control. Family and school law can supplement the
informal relations that exist in these lifeworld areas of social life, but they
can at times also go further and intrude upon family and schools by means of
law as a medium. A child, for instance, can legally be subjected to removal from the home on the basis of a judge’s decision to protect the physical
well-being of the child, while not considering that a different approach may be
in order on the basis of a more holistic viewpoint that also considers other
important dimensions of the child-parent relationship. In such cases, there is
an internal colonization of the lifeworld by means of law as a medium.
4. Law Between Facts and Norms
Habermas’s perspective
of law and morality opens the way for an important philosophical
component in his work to specify how modern societies can secure the legitimacy
of legality. At the same time, however, Habermas also introduces a concept of
law as a medium that would be relieved from normative discussions. Within the
contours of Habermas’s own theoretical ambitions, this dual conceptualization
in Habermas’s legal theory reveals an insurmountable problem for it could only
be sustained if various areas of law can be categorized either as law as an
institution or as law as a medium. Yet, as Habermas himself introduced the
terminology in The Theory of Communicative Action, this is not the case
in the areas of welfare policy and school and family law. In these instances,
legal regulations intrude into lifeworld dimensions on the basis of systems
needs and thereby produce certain problems, which are addressed in discussions
on deregulation, debureaucratization, and other morally justified terms. The
concept of law as a medium and the related notion of an internal colonization
of the lifeworld are not conceptually meaningful in the context of Habermas’s
own theory.
Habermas soon realized the rather straightforward mistake he had made in his
original formulation. In response to critics of his work,[20] he wrote that his
theses on juridification were “perhaps over-presumptuous”[21] and that he could
not maintain the distinction between law as an institution and law as a
medium.[22] The error may have resulted from the fact that Habermas in his
original 1981 book treated the lifeworld somewhat one-sided from the
perspective of the potentially damaging effects of systems and the colonization
of the lifeworld. Possibly in a rush to show the critical potential of his
theory, Habermas’s book is in fact as much a theory and study of strategic
action and system as it is of communicative action and lifeworld.
The intellectually consistent consequence is that Habermas has in the meantime
reformulated his legal theory to conceptualize law entirely as an institution
of the lifeworld. In 1992, Habermas systematically addressed his rethinking on
law in his book, Faktizität und Geltung, translated in 1996 as Between
Facts and Norms.[23] The study was the result of a five-year grant project
that was awarded to Habermas in the mid-1980s on a subject matter of his own
choosing. Habermas then formed a research group on legal theory in which
several legal philosophers, sociologists of law, and jurists participated,
resulting in multiple publications on the role of law in modern society.
Habermas’s work addresses most extensively the way in which modern law can be
justified rationally on the basis of a system of rights. This conceptualization
implies that law is intimately related to morality and, more specifically, that
both moral and legal norms are oriented at resolving social integration
problems in the lifeworld. Moral and legal norms are differentiated by their
different levels of institutionalization and formalization. Moral norms have
the advantage of being deeply embedded in the lifeworlds of different
communities, but they miss the coercive power and enforceability of law. To
assure the authority of legal norms, law also remains connected to the
political system, which oversees a proper and ideally effective administration
and enforcement of law. The characteristic of modern law to combine a claim to
legitimacy and a guarantee of legality accords law its societal relevance and
socio-theoretical centrality.
On the basis of Habermas’s new perspective of law, his legal theory in The
Theory of Communicative Action can briefly be reformulated. The regulation
of money and power can then indeed be conceived as a normative anchoring in the
lifeworld. Business and administrative law do not only regulate the workings of
the economic and administrative systems efficiently or functionally but they do
so authoritatively as well with reference to norms of justification.
Additionally, and even more importantly, the earlier specified thesis on the
internal colonization of the lifeworld can now be reconceptualized as a
colonization of law itself. In other words, modern law can be colonized by the
systems of economy and politics in such a way that legal norms and practices
are redefined and implemented on the basis of standards of instrumental
efficiency.
In view of law’s dual characteristics of legitimacy and legality, Habermas’s
central objective in Between Facts and Norms is to elaborate a legal
theory that bridges a (normative) philosophy of law with an (empirical)
sociology of law, combining insights derived from both traditions.
Specifically, Habermas posits that law, on the one hand, must rely on the
coercive force of the state to be properly administered but must, on the other
hand, also be grounded in intersubjectively recognized claims of rights. At the
level of adjudication where legal statutes are applied and interpreted, legal
norms are appropriately measured in terms of their suitability to specific
cases or to constitutional principles without the legitimacy of legal norms
themselves being at issue.
Besides seeking to reconstruct modern law in terms of its relationship to
morality and rights, Habermas spends much time contemplating the connection
between law and politics under conditions of democratic regimes. Habermas’s
work thus becomes not only a philosophy of law in addition to a sociology of
law, but also a political theory, albeit with important implications for law.
Specifically, Habermas defends a deliberative concept of democracy that focuses
on the procedures that exist, or should exist, whereby the ideas and ideals
that inform democratic debate as well as the decisions that are brought about
in democratic regimes remain open to debate. An important function for law
thereby is to establish procedures that ensure that legal norms enable a
peaceful co-existence of a plurality of ethical traditions. In other words,
democratic law is needed to guarantee that norms can coordinate social action and
secure integration in view of the preservation of a diversity of values in a
plurality of lifeworlds. A central problem in Habermas’s work is thus the
relationship between law (norms) and culture (values), an especially poignant
problem in view of an increasing drift towards multi-culturalism.
5. Reception and Critique
This chapter is primarily
oriented at providing a helpful exposition of the ideas of Habermas on law in
the context of his broader theoretical project, but it will also be useful to
have a brief look at the influence his work has enjoyed in the realm of legal
and socio-legal studies. As noted, Habermas’s legal theory involves both
distinctly philosophical and sociological components. His work has consequently
also been discussed across disciplinary fields, although in a less integrated
manner as Habermas achieved in his own work. It must also be observed that
Habermas’s writings on law have involved a shift from the sociology of law,
which is most comprehensively articulated in The Theory of Communicative
Action, to questions of legal (and political) philosophy, which he
especially addressed in Between Facts and Norms.
As a result of the shift in Habermas’s legal theory, certain distinct and
sometimes problematic consequences can be noted in the reception of his work in
the academic fields interested in the study of law. In the secondary
literature, philosophical debates far outweigh sociological writings, and
theoretical discussions are much more prevalent than empirical investigations.
Also, the majority of secondary sources on Habermas’s legal theory were
published in the 1980s and 1990s, with less explicit attention since. A
contributing factor to this relative decline is that Habermas has in more
recent years written about topics that have no direct relationship to law, with
most of his efforts being devoted the integration of the European Union,
international politics (especially since the events of 9/11), and the changing
role of religion in the world.[24]
Reviewing the debate and criticisms that have been published on Habermas’s
legal theory, several currents can be detected of variable degrees of
theoretical sophistication and empirical usefulness. Following the original
publication of The Theory of Communicative Action, several papers were
devoted from within jurisprudence and socio-legal studies to an exposition and
internal critique of Habermas’s formulation of law as an institution and law as
a medium. Theoretically, it is thereby interesting to observe that some
socio-legal scholars readily observed the internal contradiction in the theory,
which Habermas was also quick to acknowledge and which he would gradually,
during the 1980s, explore in more detailed by developing a systematic
philosophy of rights, law, and morality under the heading of ‘discourse ethics’
(Diskursethik).[25]
As a specification of the procedural conditions under which legal question and
other lifeworld debates can be legitimately conducted, the perspective of
discourse ethics suggests that norms can only be legitimate when they meet or
could meet with the approval of all those who are affected. Such a
determination presupposes the conditions of a so-called ideal-speech situation,
whereby nobody who is competent to speak would be denied to bring up any
argument or question deemed relevant and would not be excluded from debate.
These conditions are, according to Habermas, not utopian because they are
presupposed in communicative action, as is revealed, most sharply, when they turn
out to have been violated. The key implication of discourse ethics for
Habermas’s legal philosophy, as he explained in Between Facts and Norms,
is an emphasis on the procedural conditions of argumentation at various levels
of law, ranging from legislation over adjudication to law enforcement.
Tailored towards the needs of empirically oriented legal and social science,
some scholars have applied insights from Habermas’s theory in their
investigations. Given the ambivalence of Habermas’s original perspective of
law, the results present a mixed bag. Some scholars working in a critical
tradition of social science, especially in the areas of criminal justice and
criminology, relied on Habermas’s social theory to contemplate on the systemic
qualities of law, especially in the area of criminal law. Specifically, the
so-called abolitionist perspective that has been developed in the European
tradition of critical criminology undertook this effort to argue that the
modern criminal justice system deals with issues of deviance and crime in such
a way that the manner in which these problems are experienced by the
participants themselves are done no justice, but instead are treated on the
basis of the requirements of legal and political administrators and other
professional expert cultures.[26] Some abolitionist scholars reformulated this
theoretical orientation in conceptual terms derived from the theory of
communicative action to argue that the criminal justice system is indeed to be
conceived as a system in the sense in which Habermas uses the term. Needless to
say, this unsystematic appropriation of Habermas’s ideas involves a serious
misreading of his work.[27] Relying on a conception of the administration of
criminal law as a system in the Habermasian sense, the abolitionist perspective
totally overlooks the possibility of procedurally legitimated law and the place
of law in the lifeworld. Habermas’s social and legal theory simply does not
lend itself to support the abolitionist quest to abolish the criminal justice
system, but would instead be useful to work towards a procedurally guaranteed
democratization of criminal law.
The charge of a conceptually unjustified reliance on Habermas’s work in
abolitionist perspectives of criminal law, which is largely a
European-continental tradition, is also applicable to currents in the so-called
Critical Legal Studies movement. [28] Especially as it has been developed and
practiced in the United States and the United Kingdom, Critical Legal Studies
represents a diverse group of legal scholars who basically argue that law is
essentially characterized by an indeterminacy that is rooted in arbitrary
decision-making on the basis of contradictory legal principles. Developed
within the professional boundaries of jurisprudence, scholars working in the
Critical Legal Studies tradition have relied upon a variety of thinkers in
philosophy and social theory to justify their programs. At times, the name of
Habermas and selected aspects of his thought have thereby also popped up.[29]
Yet, in the wide and diverse literature of Critical Legal Studies, the work of
Habermas has been mostly appropriated in a form that mixes it, ostensibly
without realizing the theoretical and philosophical inconsistencies involved,
with many other scholars and traditions as varied as Marxism, feminism, and,
most troublesome from the Habermasian viewpoint, poststructuralism and
postmodernism.[30] Perhaps this assemblage can itself be assumed to be a
postmodern pose, but it is of course entirely contrary to the thought of
Habermas, one of the staunchest proponents of the modernist tradition
originating from the Enlightenment.[31]
Comparing the legal theory of Habermas with the theories of law of other
socio-legal scientists has formed another area of debate in the secondary
literature. To some extent, these writings involve actual discussions between
Habermas and other scholars. In the national tradition in which Habermas is
situated, the debate with the German sociologist Niklas Luhmann stands out.
[32] As explained more elaborated by Michael King elsewhere in this volume,
Luhmann develops an autopoietic theory of law that conceives of all of society
and its constituent parts in systemic terms as being operationally closed. In
response, it will cause no surprise, Habermas fundamentally argues against
Luhmann’s theory because it does not acknowledge the specificity of the
lifeworld in action-theoretical terms. With respect to the study of law,
Habermas consequently rejects the notion of operational closure to suggest that
law fulfils an important mediating function between lifeworld and system by
negotiating between the demands of everyday communicative actions, on the one
hand, and the functional needs of the economic and administrative systems, on
the other.[33] These capacities of modern law, under conditions of democratic
politics and procedurally justified legitimacy, precisely account for its
centrality in contemporary society. The connection between law and morality,
which Luhmann conceives as two separate closed systems, remains central to
Habermas.
Additional comparisons of Habermas with other socio-legal scholars or social
theorists with implied or explicit relevance to the study of law have been
conducted by commentators independently of any actual debates Habermas has
engaged in.[34] In this respect, the so-called debate between Habermas and
Michel Foucault is of special significance because both intellectuals have
greatly inspired legal and socio-legal work.[35] Yet, such comparisons are at
best modestly supported by writings in which the two authors have explicitly
discussed the value of each others’ contributions.[36] The results of these and
other such interpretive exercises remain tenuous at best to the extent that the
theoretical comparisons could be judged unwarranted as the original scholars
were not exposed to their respective ideas or, at the very least, did not judge
them useful to be entertained.
The apparent scholarly obsession to attempt to think about, for or against,
Habermas has not been complemented by an equally enthusiastic curiosity to
conduct empirical investigations on the basis of the theories of Habermas. This
unfortunate limitation in the secondary literature applies to the entire reception
of the oeuvre of Habermas and its many substantive themes, but it has been
especially pronounced in the areas of political and legal theory. The
development in Habermas’s legal theory towards a philosophy of law, rights, and
deliberative politics with the publication of Between Facts and Norms,
at the expense of a more systematic sociological investigation, has
additionally fueled a direction towards commentaries and expositions of a
predominantly theoretical nature.[37] And among the latter, the objectives of
legal philosophy have been much better served than those of sociology of law
and, more broadly, socio-legal studies.
Among the relatively few available empirical applications of Habermas’s legal
theory are the present author’s study in the field of the sociology of law that
applied propositions derived from Habermas’s theory to an analysis of the
history of U.S. abortion law.[38] Related work concerned the development of a
perspective of social control on the basis of Habermas’s theory of system and
lifeworld and its application to selected contemporary forms of
surveillance.[39] In view of the sparse use of Habermas’s work in sociology of
law (and socio-legal studies more broadly), it is striking that the most
sustained efforts to develop empirical applications of Habermas’s legal theory
have been contributions by authors in the field of jurisprudence. To some
extent this applies to strands in American professional jurisprudence where
concepts of Habermas have occasionally informed analyses of specific aspects of
legal policy.[40] Yet, the influence of Habermas’s legal work is especially
strong in the more academically oriented tradition of German jurisprudence,
which has greatly contributed to a Habermasian-inspired understanding of law in
concrete socio-historical settings.[41] Attuned to the needs of the
empirically-minded student of law, Habermas’s discourse model is applied to the
analysis of juridical discourse on the basis of the principle that legal
debates (ranging from legislative discussions to judicial decisions) rely upon
linguistic means to arrive at rational conclusions that are oriented at meeting
the consensus of all who are involved. From the viewpoint of a practically
minded legal policy, such work can lead the way to develop legal regulations in
the form of a juridification that is not systematically distorted and instead
democratically accountable.
Regardless of the strength and limitations of the debates on the merits of
Habermas’s legal theory in the realm of legal and socio-legal studies, such
secondary works demonstrate the potential relevance of Habermas to the study of
modern law. Conceptually, they provide clarification within the context of
Habermas’s broader theoretical project as well as relative to other, competing
and complementary theories. Empirical applications in social-science and legal
research additionally show that it is possible to use rather than merely
discuss Habermas. This chapter, likewise, hopes to have explained some of the
key elements of Habermas’s legal theory which can and should be further
investigated by means of consultation of the primary sources, a reading that
can and ideally will also pave the way towards the elaboration of a Habermasian
tradition of empirical work on law.
ENDNOTES
•
[1] On Habermas’s life and work, see MB Matuštík, Jürgen
Habermas: A Philosophical-Political Profile (Lanham, MD, Rowman &
Littlefield, 2001).
•
[2] M Jay, The Dialectical Imagination: A
History of the Frankfurt School and the Institute of Social Research, 1923-1950
(Berkeley, CA, University of California Press, 1996).
•
[3] M Horkheimer, ‘Traditionelle und Kritische
Theorie’ (1937) 6 Zeitschrift fur Sozialforschung 245.
•
[4] The study was originally published in 1962 and
translated into English in 1989. See J Habermas, Strukturwandel der
Öffentlichkeit. Untersuchungen zu einer Kategorie der bürgerlichen Gesellschaft
(Neuwied/Berlin, Luchterhand, 1962); J Habermas, The Structural
Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois
Society (Cambridge, MA, The MIT Press, 1989).
•
[5] There are many overviews of the work of
Habermas available that can be helpful to introduce his own writings. See, eg,
D Ingram, Habermas: Introduction and Analysis (Ithaca, Cornell
University Press, 2010); T McCarthy, The Critical Theory of Jürgen Habermas
(Cambridge, MIT Press, 1978).
•
[6] J Habermas, Technik und Wissenschaft als
“Ideologie” (Frankfurt, Suhrkamp, 1968); English Translation: J Habermas, Theory
and Practice (Boston, Beacon Press, 1973). See also: J Habermas, Knowledge
and Human Interests (Cambridge, Polity Press, 1987).
•
[7] Habermas, Theory and Practice, 142.
•
[8] J Habermas, Zur Rekonstruktion des
historischen Materialismus (Frankfurt, Suhrkamp, 1976); English
translation: J Habermas, Communication and the Evolution of Society
(London, Heinemann, 1979); J Habermas, Legitimationsprobleme im
Spätkapitalismus (Frankfurt, Suhrkamp, 1973); English translation: J
Habermas, Legitimation Crisis (Cambridge, Polity Press, 1988). The
methodological implications of the turn towards social theory are addressed in:
J Habermas, Zur Logik der Sozialwissenschaften (Frankfurt, Suhrkamp,
1970); English translation: J Habermas, On the Logic of the Social Sciences (Cambridge,
Polity Press, 1988).
•
[9] J Habermas, Theorie des kommunikativen
Handelns, 2 volumes (Frankfurt, Suhrkamp, 1981); English translations: J
Habermas, The Theory of Communicative Action, Volume 1: Reason and the
Rationalization of Society (Boston, Beacon Press, 1984); J Habermas, The
Theory of Communicative Action, Volume 2: System and Lifeworld: A Critique of
Functionalist Reason (Boston, Beacon Press, 1987).
•
[10] T Parsons, The Structure of Social Action
(New York, McGraw-Hill, 1937).
•
[11] M Deflem, Sociology of Law: Visions of a
Scholarly Tradition (Cambridge, Cambridge University Press, 2008).
•
[12] Habermas, Theory of Communicative Action,
Vol 1, xli.
•
[13] Habermas, Theory, Vol 2, 356.
•
[14] Habermas, Theory, Vol 1, 243-271; Theory,
Vol 2, 172-179. For overviews, see A Brand, ‘Ethical Rationalization and
“Juridification”: Habermas’ Critical Legal Theory’ (1987) 4 Australian
Journal of Law and Society 103; M Deflem, ‘La Notion de Droit dans laThéorie de l’Agir Communicationnel de Jürgen Habermas’ (1994) 18 Déviance et
Société 95.
•
[15] Habermas, Theory, Vol 2, 356-373.
•
[16] Habermas, Theory, Vol 2, 358-361.
•
[17] Habermas, Theory, Vol 2, 361-364.
•
[18] Habermas, Theory, Vol 2, 366-368.
•
[19] Habermas, Theory, Vol 2, 368-373.
•
[20] See, eg, K Eder, ‘Critique of Habermas’
Contribution to the Sociology of Law’ (1988) 22 Law and Society 931; K
Raes, ‘Legalisation, Communication and Strategy: A Critique of Habermas’
Approach to Law’ (1986) 13 Journal of Law and Society 183; W van der
Burg, ‘Jurgen Habermas on Law and Morality: Some Critical Comments’ (1990) 7 Theory,
Culture and Society 105.
•
[21] J Habermas, ‘A Reply’ in A Honneth and H Joas
(eds), Communicative Action (Cambridge, MA: The MIT Press, 1990). See
also J Habermas, ‘Law and Morality’ in SM McMurrin (ed), The Tanner Lectures
on Human Values (Salt Lake City, University of Utah Press, 1988).
•
[22] J Habermas, ‘Remarks on the Discussion’ (1990)
7 Theory, Culture and Society 127.
•
[23] J Habermas, Faktizität und Geltung:
Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats
(Frankfurt, Suhrkamp, 1992); English translation: J Habermas, Between Facts
and Norms: Contributions to a Discourse Theory of Law and Democracy
(Cambridge, MIT Press, 1996). For overviews and discussions, see: H Baxter, Habermas:
The Discourse Theory of Law and Democracy (Stanford, Stanford Law Books,
2011); M Deflem (ed), Habermas, Modernity and Law (London, Sage
Publications, 1996); M Deflem, ‘Théorie du Discours, Droit Pénal, et Criminologie’ (1995) 19 Déviance et Société 325 ; M Rosenfeld and A
Arato (eds), Habermas on Law and Democracy: Critical Exchanges
(Berkeley, University of California Press, 1998); CL Orjiako, Jurisprudence
of Jürgen Habermas: In Defence of Human Rights and a Search for Legitimacy,
Truth and Validity (Milton Keynes, Authorhouse, 2009); C Ungureanu, K
Günther and C Joerges (eds), Jürgen Habermas, Volume 1: The Discourse Theory
of Law and Democracy (Aldershot, Ashgate, 2011).
•
[24] See, eg, J Habermas, Der Gespaltene Westen
(Frankfurt, Suhrkamp, 2004), English translation: J Habermas, The Divided
West (Cambridge, Polity Press, 2006); J Habermas, Zwischen Naturalismus
und Religion (Frankfurt, Suhrkamp, 2005); English translation: J Habermas, Between
Naturalism and Religion (Polity Press, 2008); J Habermas, Ach, Europa
(Frankfurt, Suhrkamp, 2008): English translation: J Habermas, Europe: The
Faltering Project (Polity, 2009); J Habermas, Zur Verfassung Europas
(Frankfurt, Suhrkamp, 2011); English translation: J Habermas, The Crisis of
the European Union: A Response (Polity Press, 2012).
•
[25] J Habermas, Moralbewußtsein und
kommunikatives Handeln (Frankfurt, Suhrkamp, 1983); English translation: J
Habermas, Moral Consciousness and Communicative Action (Cambridge, MIT
Press, 1990); J Habermas, Erläuterungen zur Diskursethik (Frankfurt,
Suhrkamp, 1991); English translation: J Habermas, Justification and
Application: Remarks on Discourse Ethics (Cambridge, MIT Press, 1993).
•
[26] JR Blad, H Van Mastrigt and NA Uildriks (eds),
The Criminal Justice System as a Social Problem: An Abolitionist Perspective
(Rotterdam, Erasmus Universiteit, 1987); H Bianchi and R Van Swaaningen (eds), Abolitionism:
Towards a Non-Repressive Approach to Crime (Amsterdam, Free University
Press, 1986).
•
[27] M Deflem, ‘Jürgen Habermas: Pflegevater oder Sorgenkind der abolitionistischen Perspektive?’ (1992) 24 Kriminologisches
Journal 82.
•
[28] See P Fitzpatrick and A Hunt, Critical
Legal Studies (Oxford, Basil Blackwell, 1987); RM Unger, The Critical
Legal Studies Movement (Cambridge, Harvard University Press, 1986).
•
[29] See, for example, F Munger and C Seron, ‘Critical
Legal Studies versus Critical Legal Theory: A Comment on Method’ (1984) 6 Law
& Policy 257.
•
[30] D Ingram, ‘Dworkin, Habermas, and the CLS
Movement on Moral Criticism in Law’ (1990) 16 Philosophy and Social
Criticism 237.
•
[31] J Habermas, Der philosophische Diskurs der
Moderne: Zwölf Vorlesungen (Frankfurt, Suhrkamp, 1985); English
translation: J Habermas, The Philosophical Discourse of Modernity: Twelve
Lectures (Cambridge, Polity Press, 1987).
•
[32] N Luhmann, A Sociological Theory of Law
(London, Routledge & Kegan Paul, 1985); N Luhmann, ‘Operational Closure and
Structural Coupling: The Differentiation of the Legal System’ (1992) 13 Cardozo
Law Review 1419.
•
[33] Habermas, Between Facts and Norms,
47-54. In response, see N Luhmann, ‘Quod Omnes Tangit...: Anmerkungen zur
Rechtstheorie von Jürgen Habermas’ (1993) 12 Rechtshistorisches Journal 36.
•
[34] EG, JP McCormick, ‘Three Ways of Thinking
“Critically” about the Law’ (1999) 93 The American Political Science Review
413; A Lefebvre, ‘Habermas and Deleuze on Law and Adjudication’ (2006) 17 Law
and Critique 389; DM Rasmussen, ‘Communication Theory and the Critique of
the Law: Habermas and Unger on the Law’ (1988) 8 Praxis International
155.
•
[35] See the Gary Wickham’s chapter on Foucault in
this volume.
•
[36] Habermas devoted two chapters to the work of
Foucault, but the French philosopher died before a true debate could begin; see
J Habermas, Philosophical Discourse, 238-293.
•
[37] See, eg, B Honig, ‘Between Decision and
Deliberation: Political Paradox in Democratic Theory’ (2007) 101 The
American Political Science Review 1; S Grodnick, ‘Rediscovering Radical
Democracy in Habermas’s Between Facts and Norms’ (2005) 12 Constellations
392; J Mahoney, ‘Rights without Dignity? Some Critical Reflections on
Habermas's Procedural Model of Law and Democracy’ (2001) 27 Philosophy and
Social Criticism 21; JL Marsh, Unjust Legality: A Critique of Habermas's
Philosophy of Law (Lanham, Rowman & Littlefield Publishers, 2001); T
Hedrick, Rawls and Habermas: Reason, Pluralism, and the Claims of Political
Philosophy (Stanford, Stanford University Press, 2010); MC Modak-Truran,
‘Secularization, Legal Indeterminacy, and Habermas's Discourse Theory of Law’
(2007) 35 Florida State University Law Review 73.
•
[38] M Deflem, ‘The Boundaries of Abortion Law: Systems Theory from Parsons to Luhmann and Habermas’ (1998) 76 Social Forces
775.
•
[39] M Deflem, ‘Social Control and the Theory of Communicative Action’ (1994) 22 International Journal of the Sociology of
Law 355; JR Lilly and M Deflem, ‘Profit and Penality: An Analysis of the Corrections-Commercial Complex’ (1996) 42 Crime and Delinquency 3.
•
[40] See, eg, AA Felts and CB Fields, ‘Technical
and Symbolic Reasoning: An Application of Habermas’ Ideological Analysis to the
Legal Arena’ (1988) 12 Quarterly Journal of Ideology 1; D von Daniels, The
Concept of Law from a Transnational Perspective (Burlington, Ashgate,
2010); A Bächtiger and J Steiner (eds), ‘Empirical Approaches to Deliberative
Democracy’ (2005) 40 Acta Politica 153; WE Scheuerman, Frankfurt
School Perspectives on Globalization, Democracy, and the Law (New York,
Routledge, 2008).
•
[41] Most instructive for the influence of
Habermas’s thought in jurisprudence is the discussion between Robert Alexy and
Klaus Günther. See R Alexy, ‘A Discourse-Theoretical Conception of Practical
Reason’ (1992) 5 Ratio Juris 1; R Alexy,
‘Justification and Application of Norms’ (1993) 6 Ratio Juris 157; K Günther,
Der Sinn für Angemessenheit: Anwendungsdiskurse in Moral und Recht
(Frankfurt, Suhrkamp, 1988); K Günther, ‘A Normative Conception of Coherence
for a Discursive Theory of Legal justification’ (1989) 2 Ratio Juris 155;
K Günther, ‘Criticial Remarks on Robert Alexy's Special-Case Thesis’ (1993) 6 Ratio
Juris 143.
See related publications on Habermas and sociology of law.
