The Legal Theory of Jürgen Habermas

Mathieu Deflem
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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.


               [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.