p. 1

[close]

p. 2

haber mas

[close]

p. 3

jurists profiles in legal theory william twining general editor

[close]

p. 4

habermas the discourse theory of law a nd democr acy hugh baxter stanford law books an imprint of stanford university press stanford california

[close]

p. 5

stanford university press stanford california © 2011 by the board of trustees of the leland stanford junior university all rights reserved no part of this book may be reproduced or transmitted in any form or by any means electronic or mechanical including photocopying and recording or in any information storage or retrieval system without the prior written permission of stanford university press printed in the united states of america on acid-free archival-quality paper library of congress cataloging-in-publication data baxter hugh habermas the discourse theory of law and democracy hugh baxter p cm jurists profiles in legal theory includes bibliographical references and index isbn 978-0-8047-6912-9 cloth alk paper 1 habermas jürgen 2 law philosophy 3 sociological jurisprudence 4 democracy philosophy 5 discourse analysis i title ii series jurists profiles in legal theory k 230.h332b39 2011 2010039808 340 1 dc22 typeset by thompson type in 10/13 galliard

[close]

p. 6

contents acknowledgments introduction 1 vii 1 basic concepts in habermas s theory of communicative action 9 2 habermas s reconstruction of modern law 3 discourse theory and the theory and practice of adjudication 106 4 system lifeworld and habermas s communication theory of society 148 60 5 after between facts and norms religion in the public square multiculturalism and the postnational constellation 192 notes index 255 311 323 bibliography

[close]

p. 7

[close]

p. 8

acknowledgments this work has been underwritten in part by summer research grants from boston university thanks to the school of law for that support i ve presented prior versions of parts of this book at the following venues faculty workshops at the university of illinois the university of texas northeastern university and boston university the 2007 and 2008 annual meetings of the law and society association and the 2000 meeting of the working group on law culture and the humanities thanks to the participants at those sessions special thanks to friends and colleagues who read and commented on preliminary versions david lyons pnina lahav richard mcadams manuel utset and daniela caruso i have benefited also from communications with cristina lafont and john victor peterson thanks to the anonymous reviewers at stanford university press particularly anonymous reviewer #3 heartfelt thanks for the guidance i received over the years from rhoda greenspan michael caplan kevin lyons bonnie teitelman peg baim sharon cardamone and rachel bairstow in memory of my friend francis tomasic who introduced me to habermas s work deepest appreciation to my parents cynthia lewis baxter and maurice baxter for their love and support throughout my life for my wife marina leslie with gratitude much love and great anticipation of our future years together.

[close]

p. 9

[close]

p. 10

haber mas

[close]

p. 11

[close]

p. 12

introduction the work you have in front of you is a critical analysis of the complex theory of law and democracy developed by celebrated german philosopher and sociologist jürgen habermas 1929­ it presumes no prior familiarity with habermas s work and is designed to be understood by those with little prior acquaintance with law and legal theory as with other volumes in the jurists series i begin with a brief biographical sketch of my chosen figure,1 which i integrate with a brief outline of the book s plan and central arguments habermas was born on june 18 1929 in the german town of gummersbach located in north rhine-westphalia about forty miles from düsseldorf his grandfather was a protestant minister and seminary director and his father served as a district director of the bureau of trade and industry.2 habermas describes his father as having been a passive sympathizer with the nazi regime.3 according to habermas s recollection the political climate in our family home was probably not unusual for the time marked by a bourgeois adaptation to a political situation with which one did not fully identify but which one didn t seriously criticize either 4 near the end of the war habermas joined hitler youth and he soon was sent with other boys apparently as young as twelve to man the western defenses 5 habermas recalls that at the end of the war when he was just short of sixteen years old the radio was reporting the nuremberg trials movie theatres were showing the first documentary films the concentration camp films all at once we saw that we had been living in a politically criminal system i had never imagined that before 6 the experience was shattering for habermas and undoubtedly it was fundamental in

[close]

p. 13

2 introduction developing the left-wing political convictions that underlie both his relatively mandarin academic interests and also his numerous interventions into political controversies as by the late 1980s germany s leading public intellectual.7 between 1945 and 1949 habermas studied at gymnasium and between 1949 and 1954 he pursued university studies at göttingen bonn and zurich in 1954 he completed his phd at the university of bonn writing his dissertation on schelling s concept of nature after serving as assistant to first-generation frankfurt school philosopher theodor adorno at the institute for social research habermas completed a second doctorate in marburg his dissertation or habilitationsschrift is much read today although not translated into english until 1989 the structural transformation of the public sphere an investigation into a category of bourgeois society 1962 8 after serving as a professor at the university of heidelberg habermas succeeded first-generation frankfurt school figure max horkheimer as professor of philosophy and sociology at the johann wolfgang goethe-university in frankfurt am main 9 habermas s inaugural lecture at frankfurt erkenntnis und interesse formed the basis for his 1968 book of the same title translated into english as knowledge and human interests habermas s argument in that work was that the natural and human sciences are related to fundamental cognitive or knowledge-constitutive erkenntnisleitende interests rooted in our species life interests in respectively the control of nature the technical interest and the establishment of mutual social relations the practical interest more speculatively still habermas argued for a third emancipatory interest in the elimination of repression both individual-psychological and social with psychoanalysis and marxian ideology critique as the scientific models while the theory was subjected to intensive criticism,10 leading to habermas s backing away from some of its central arguments the underlying distinction between labor and interaction informed his later work and habermas continued to pursue the idea of a critical theory of society that had inspired his speculation as to an emancipatory cognitive interest after knowledge and human interests habermas began to expand the already extensive theoretical influences on his work in one line of inquiry he investigated social systems theory beginning a more-than-twenty-fiveyear debate with german sociologist niklas luhmann that lasted until the latter s death in 1998 habermas and luhmann coauthored a 1971 book that contained their first but hardly last critical exchange.11 habermas followed that work with a more influential 1973 study legitimation crisis.

[close]

p. 14

introduction 3 two aspects of that book are especially noteworthy the first is methodological habermas began his career-long quest of integrating insights from social systems theory on the one hand with more standard social theory that begins from the perspective of the acting subject the idea as habermas put in legitimation crisis was to develop a two-level theory of society one that sees society both as system and as symbolically structured lifeworld of everyday action both paradigms life-world and system are important habermas argued the problem is to demonstrate their interconnection 12 the idea of integrating these two sociological perspectives has been a key concern for habermas throughout his career the second significant development in legitimation crisis was substantive the book represents habermas s attempt to update marx s theory of crisis tendencies in capitalism marx s theory of the tendency toward economic crisis in capitalist systems depended on a theoretical premise the labor theory of value that habermas rejects while habermas allows for the possibility of economic crisis he argued that it was not beyond possibility that tendencies in that direction could be successfully managed by political intervention accordingly his interest shifted more toward tendencies toward rationality crisis essentially overburdening of political planning capacity and legitimation crisis the inability of an expertocratic and planned state to secure the conditions of its own legitimacy the latter form of crisis depends in turn upon tendencies toward motivation crisis the possibility that the post-1960s generation would continue a path of questioning and rejecting the values and motivations presupposed by a capitalist economic system and a liberal democracy this emphasis on social crisis theory went together with habermas s methodological focus on developing a two-level theory of society both themes substantive and methodological have been central parts of habermas s work particularly up until his turn toward direct consideration of law and legal issues in 1992 another weapon in habermas s expanding methodological arsenal came from his encounters with anglo-american analytic philosophy of language particularly the speech-act theory of among others j l austin and john searle the focus of speech-act theory on pragmatics or the study of language in use rather than from habermas s perspective the more abstract approach of formal semantics was congenial to habermas s attempt to develop a theory of communicative action that could ground ultimately a new conception of rationality in action one that he called not surprisingly communicative rationality around this time the early

[close]

p. 15

4 introduction and mid-1970s habermas was studying finally theories of social evolution as keys to his continuing attempt to recast marxian understandings of social transformation all of these lines of inquiry converged in habermas s 1981 magnum opus theory of communicative action this two-volume treatise alternated between readings of leading figures in social theory max weber georg lukács frankfurt school figures horkheimer and adorno george herbert mead emile durkheim talcott parsons and finally marx with more systematic development of his new two-level theory of society the action-theoretical or lifeworld side of that theory was centered on his understanding of communicative action the system side of that theory developed a parsons-inspired theory of societies as evolving input-output related networks of differentiated subsystems the economic and administrative systems on habermas s account the lifeworld he argued was socially integrated by shared norms and values with the development of capitalism habermas argued economic and administrative systems historically evolved from the social lifeworld these systems are characterized by mechanisms of systems integration like the market that bind together patterns of largely self-interested action through the often counterintuitive consequences of action rather than the actors intentions habermas presented this complex two-level evolutionary theory of society as a recasting of weber s idea of the rationalization of western societies that is the incorporation of various forms of rationality and rational action into a variety of social settings what habermas tries to capture is what neo-marxist but weber-influenced theorists georg lukács max horkheimer and theodor adorno saw as a distorted form of rationalization a development they called and criticized as reification habermas sees his task as rescuing this neo-marxist appropriation of weber s theory of rationalization from lukács s lapse into apotheosis of the communist party and adorno s indulgence of self-conscious paradox in which a critical standard is literally inconceivable while habermas argues that the process weber called rationalization had left unexhausted rational potential that could be exploited by in particular more radical democratization his central theme is a more defensive crisis theory a revision of the argument of legitimation crisis that now sees tendencies toward the colonization of the lifeworld leaving aside the marxian question whether advanced capitalist societies might be headed toward economic crisis or crisis in material reproduction habermas focuses instead on tendencies toward crises in symbolic reproduction by that he means

[close]