Habermas' Discourse Theory of Law: Bridging Anglo‐American and Continental Legal Traditions?
| Published date | 01 September 1997 |
| DOI | http://doi.org/10.1111/1468-2230.00113 |
| Date | 01 September 1997 |
REVIEW ARTICLE
Habermas’ Discourse Theory of Law: Bridging Anglo-
American and Continental Legal Traditions?
John P. McCormick*
Ju
¨rgen Habermas,Between Facts and Norms: Contributions to a Discourse
Theory of Law and Democracy, translated with an Introduction by William
Rehg, Cambridge, MA: MIT Press, 1996, xliii + 631 pp, hb £45.00.
The English-speaking intellectual world has eagerly awaited the translation of
Ju
¨rgen Habermas’ magnum opus on legal and state theory, Faktizita
¨t und Geltung,
since its German publication in 1992.
1
The impressive way in which Habermas
absorbs Anglo-American constitutional theory into his primarily European
theoretical framework has been commented upon repeatedly in the early review
literature on the translation. In what follows, I trace out several of the successes of
Habermas’ attempt to bring together Anglo-American considerations on law with
more continental traditions: (A) focusing specifically on his notion of
communicative constitutional democracy; (B) defending it against certain crude
interpretations of the theory; (C) explicating his discourse theory of legal
interpretation; and, finally, (D) assessing the extent of Habermas’ success in
appropriating Anglo-American legal traditions. Despite the many legal-theoretical
advances offered by Habermas’ endeavour, there are, I conclude, German ghosts
that haunt Habermas’ project that keep him from taking full advantage of the
possibilities afforded by Anglo-American sources.
(A) Habermas’ mammoth tome purports to mediate the opposition between
empirical facticity [Faktizita
¨t] and abstract validity [Geltung] expressed in its title.
Habermas discusses contemporary expressions of each of these aspects of legal
studies from both sides of the Atlantic, as well as from the past and the present in
Germany. It is not terribly difficult to detect that hiding behind the norm-
dismissing, factually-fixated systems theory of Niklas Luhmann frequently
criticised in the work looms the spectre of Weimar antiliberal jurist extraordinaire,
and eventual National Socialist, Carl Schmitt. Likewise, behind what Habermas
identifies as the contemporary representation of an empirically blind normativity,
John Rawls, stands Hans Kelsen. According to Habermas, the former, ‘sociological
theories of law,’ convey a ‘false realism that underestimates the empirical impact
of the normative presuppositions of existing legal practice’; while the latter,
‘philosophical theories of justice,’ are problematically formulated ‘in vacuo’
socially, that is, to a great extent oblivious to social reality and the politically
marginalising effects of purely abstract categories.
2
Habermas can be understood to propose a solution to the insufficiencies of either
The Modern Law Review Limited 1997 (MLR 60:5, September). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.734
* Faculty of Political Science, University of New Hampshire, USA.
1Faktizita
¨t und Geltung: Beitra
¨ge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats
(Frankfurt: Suhrkamp, 1992).
2Between Facts and Norms, xl, 57.
To continue reading
Request your trial