Hauke Brunkhorst’s Critical Theory of Legal Revolutions

DOI10.1177/0964663914545560
AuthorJürgen Habermas
Date01 December 2014
Publication Date01 December 2014
SubjectArticles
SLS545560 533..546
Article
Social & Legal Studies
2014, Vol. 23(4) 533–546
Hauke Brunkhorst’s
ª The Author(s) 2014
Reprints and permission:
Critical Theory of Legal
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DOI: 10.1177/0964663914545560
Revolutions: Some
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Comments on Theory
Construction
Ju¨rgen Habermas
University of Frankfurt am Main, Germany
Abstract
This article sets out a critical response to the recent work of Hauke Brunkhorst. In
particular, it raises questions about the theory construction underlying this work,
notably the elements of Brunkhorst’s theory indebted to historical materialism and
systems theory.
Keywords
Theory Construction, learning processes
From the perspective of social theory, the great theoretical achievement of this path-
breaking investigation lies in the fact that it draws attention to the importance of the
‘papal revolution’ for social evolution. Previously, this was a matter of importance for
lawyers and historians, who were interested in medieval Europe. Harold Berman had
already articulated the significance of this caesura for modern social history. Hauke
Brunkhorst has expanded this perspective still further by discussing the moment in which
‘Christian Europe’ entered the stage of social modernity as primary evidence to support a
more far-reaching theory. From this perspective, important innovations such as the emer-
gence of the modern state system, the differentiation of a market society from the polit-
ical context, the constitutional revolutions of the 18th and 19th centuries and the rise of
Corresponding author:
Ju¨rgen Habermas, University of Frankfurt am Main, Germany.

534
Social & Legal Studies 23(4)
mass democracies since the 20th century cannot be explained in exclusively functionalist
fashion through reference to processes of adaptation. Instead, it is necessary to choose a
theoretical framework which allows us to appreciate the interplay between the
observed increase in the complexity of social systems and those cognitive, sociocog-
nitive and normative learning processes, which must be reconstructed from the parti-
cipant’s perspective.1
In this regard, the papal revolution, initiated by Gregory VII, serves Brunkhorst as the
classic example of an event, which can be understood as exploiting, revitalizing and
institutionalizing the transgressing egalitarian and universalistic ideas of justice con-
tained in the living tradition of the monastic ethos. The conception of ‘freedom of asso-
ciation’ formed the normative core of the new legal system, which differentiated itself
from the religiopolitical complex in the course of the 12th century. The legal figure of
the self-administering corporation marked the beginning of the functional differentiation
of a hierarchical society, which had hitherto found its culminating point in the figure of
the political ruler. As an unintended consequence of that medieval transformation, the
secular state developed in the course of subsequent centuries. Following this dialectical
pattern, Brunkhorst construes the Protestant Reformation and the emergence of the con-
stitutional state as relevant stages in the evolution of law.
Brunkhorst’s alignment of the legal innovations of the Middle Ages and early mod-
ernity to the revolutionary character of the acts of constitutional formation in the late
18th century may be due to the fact that he links his argument to certain basic concepts
of historical materialism. In a manner which is essential for his theoretical strategy,
Brunkhorst makes a distinction between adaptive learning processes and increases in
complexity on the one hand, and social–cognitive or moral–cognitive learning pro-
cesses – leading to new normative constraints for adaptive learning – on the other,2
although he notes that Marx himself did not distinguish with sufficient stringency between
the normative achievements of successful class conflicts and the technological progress of
the developing productive forces. The reliance on the theory of class struggle helps to
draw attention to the connection between innovations in law and social conflicts, but it
also leads to an overgeneralization of exemplary cases. The available historical sources
would probably better fit the abstract statements regarding ‘legal revolutions’ if debates
and social conflicts occurring at the same time were not always presented as revolutionary
events.3
This is not to diminish the fact that Brunkhorst is able to penetrate an enormous
amount of historical material in a theoretical manner that shows depth and acuity at the
same time. The theoretical appropriation of the results of legal and historical research
raises questions, which I leave to the experts. In the following, I will limit myself –
proceeding from a fundamental agreement with the intention and design of this fascinat-
ing sketch – to a discussion of certain aspects of its theoretical construction. Above all, I
will briefly deal with five questions:
1: Does the linear arrangement of the subsequent functional differentiation of the
legal, the political, the economic and the educational system not draw an oversimplified
(and, with regard to the legal system, somewhat misleading) picture of the thresholds,
which punctuate the course of cultural and social modernization of Western societies?

Habermas
535
2: How can we explain the dynamics of those transgressing normative ideas, which
gave rise to the papal revolution, which inspired all subsequent socioevolutionary bursts,
and which culminated in creating the ‘Kantian mindset’? This mindset is supposed to
provide a somewhat mysterious potential which inspires social evolution from the
outset?
3: Does the fact that law is embedded in the context of world views mean that we have
to see the pacemaker function of legal innovations as dependent on the evolution of
world views? Does this mean that we need to see the evolutionary learning mechanism
as located at a deeper level in society?
4: If we ascribe greater weight to the critical role of the development of world views,
what is the actual importance of the ambivalent description of ‘post-metaphysical’ think-
ing for a diagnosis of modern society?
5: What is the appropriate framework for a theory of social evolution, which attaches
weight to the interplay between normative learning and systemic adaptation?
1: In typical fashion, Brunkhorst characterizes social modernity by arguing that society,
which was originally constituted holistically and held together and structured by the polit-
ical system, has been progressively differentiated into functionally specialized subsys-
tems. This development leads from a hierarchical towards a heterarchical structure, and
it can equally be described as a progressive ‘decentration’, in which ‘the political’ is
increasingly removed from the imaginary all-embracing centre of society towards the per-
iphery. The political, which appeared in the form of Ancient Empires or Classical City
Governments, was an amalgam of two elements: it fused the power of government, includ-
ing jurisdiction and administrative organization, with the spiritual power of the priesthood,
which had responsibility for worship and which, through its administration of the means of
salvation, also commanded resources for the legitimation of political authority.
The differentiation and the stabilization of the tension between regnum and sacer-
dotium, which developed throughout the late Middle Ages until the Golden Bull
(1356), is a peculiar characteristic of Western culture. The papal revolution, which,
following the academic reception of Roman law, refined the canon law into a medium
for far-reaching reform of the ecclesiastical organization, formed a caesura in the com-
petition and the ever-changing relation between Pope and Emperor. The reformed
church presented the first example of a legally constituted corporation, and, as such,
it embodied for the first time public law as differentiated from private law. As a result,
it was now the exercise of the corporate power that was constrained by law. This inno-
vative step can be described as a functional differentiation of the legal system. But we
should not assimilate this internal differentiation within the complex of politics and
law to the differentiation of law as a social subsystem of its own vis-a`-vis the political
system. In other words, the internal differentiation of law from politics does not pro-
ceed at the same level as the subsequent decentration of a society which initially was
structured by an embracing political system. Subsystems such as economy, family,
education, health, and so on would withdraw themselves from the reach of political
imperatives in a way law never did.
Since the emergence of the state on the eve of the third millennium before Christ, law
and politics have formed, together with the sacred resources of legitimacy administered

536
Social & Legal Studies 23(4)
by religious authorities an amalgam. From the beginning of state-organized societies,
law and political power have been mutually constitutive for one another. This reciprocal
relation is so close that the legal system cannot differentiate itself from politics in the
same way that, through the secularization of state power, even the other component of
the political complex – that is, the religious component – was able to do. The result
of the papal revolution was an internal differentiation within this complex. Since that
moment, law has no longer functioned merely, as was previously the case, as a means
of organizing and channelling political...

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