Book Review: Habermas on Law and Democracy: Critical Exchanges
| Date | 01 December 2000 |
| DOI | 10.1177/096466390000900406 |
| Author | Lindsay Farmer |
| Published date | 01 December 2000 |
| Subject Matter | Articles |
BOOK REVIEWS
MICHAEL ROSENFELD AND ANDREW ARATO (Eds), Habermas on Law and Democ-
racy: Critical Exchanges. Berkeley: University of California Press, 1998, 478pp.,
£40.00 (hbk).
The publication of Habermas’ book Between Fact and Norms. Contributions to a Dis-
course Theory of Law and Democracy (BFN) in Germany in 1992, and in English
translation in 1996 was regarded as a major event in the fields of legal and political
theory. In the grandiose conception of the author it was offered as a reconstruction
of the normative self-understanding of modernity through its reformulation in terms
of procedural reason. The book proposed the application of ‘discourse theory’ to the
law as a means of developing a programmatic statement and defence of constitution-
alism and the rule of law. As Habermas’ first major publication since the end of the
Cold War and the unification of Germany it is perhaps not fanciful to regard it as rep-
resenting the triumph of the west (but which west?). Its ambition is clear, and its range
formidable. At over 600 pages long it is a book that does not merely invite, but rather
insists that it be the subject of conferences. One such conference was that hosted by
the Benjamin Cardozo School of Law in 1992. The papers presented at this confer-
ence were published in the Cardozo Law Review in 1996, and a selection of these have
now been republished in this volume, together with a long response from Habermas
himself (in addition to his original conference contribution). This already amounts to
a substantial discourse on discourse theory (not to mention the many other special
issues and symposia on the book), and in such circumstances reviewing can be a haz-
ardous exercise. After all, at a certain point in his contribution Niklas Luhmann
remarks on the ‘scarcely manageable conditions of a discourse about discourse theory’
(p. 171) (a recursivity best demonstrated by the fact that Luhmann’s essay, included
here as a response to BFN, is apparently itself cited in the bibliography of that book).
Such a warning notwithstanding, the current book invites further contribution to this
proliferation of discourse, if only to review the current status of this project.
It is fair to say that the response to BFN has been mixed. While in certain circles
Habermas’ apparent conversion to the virtues of liberal constitutionalism and a neo-
Dworkinian theory of adjudication have led to the book being seen as a renewal of
that tradition of legal theory, in other circles the book has been met with bemusement
and undisguised disappointment. The faults of the book, it is said, can be traced to the
idealism of the ideal speech situation and the unabashed adherence to the projects of
the Enlightenment and modernity. Critics have sought in vain for the radicalism that
characterized his early work and have struggled to locate the book within the tradition
of critical theory. However, neither response seems adequate. There may be family
resemblances with liberal or republican political theory – see, for example, the title of
Michelman’s essay – but important differences remain. If the liberals are too ready to
SOCIAL &LEGAL STUDIES 0964 6639 (200012) 9:4 Copyright © 2000
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
Vol. 9(4), 583–605; 015236
06 Reviews (jl/d) 30/10/00 2:47 pm Page 583
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