Review Article: Habermas’s Contribution to Legal Scholarship
| Date | 01 June 1997 |
| Published date | 01 June 1997 |
| Author | Michael Salter |
| DOI | http://doi.org/10.1111/1467-6478.00047 |
INTRODUCTION
Habermas’s new work
Between Facts and Norms1(hereafter ‘BFN’) presents
a highly ambitious, systematic, and comprehensive treatise on the character,
moral rationale and empirical operation of modern law within a ‘post-
traditional’ historical context. He focuses upon the recurrent tension between
the empirical application of norms by various institutions which constitutes
the social force of law (its ‘facticity’), and those normative claims to embody
values of equality, freedom and justice upon which law’s claims to legitimacy
depend.2
The tension between facts and norms is experienced as both ‘a moment
of facticity’ and as increasingly problematic within a wide variety of different
micro-contexts.3It appears within the opposition between those everyday,
normative expectations (rooted in the intersubjective life-world), and more
instrumental concerns for cost, resources, and bureaucratic efficiency
(grounded in the economic and administrative subsystems of society). This
tension is built into the very forms of communication in and through which
society is reproduced, and social integration achieved.4BFN combines a
distinctive moral philosophy and sociological theory of law, grounded in a
communicative perspective, whose decidedly interdisciplinary project
addresses major issues of constitutional legitimacy within political science,
democratic-constitutional theory, moral theory, empirical sociology of law
and jurisprudence.
Habermas develops his own paradigm by ‘reconstructing’ the many
implications of the normative self-understanding of what citizenship signifies
within modern constitutional democracies. He reconstructs its meanings in
terms of a legitimating ideal that involves the translation of the communicative
© Blackwell Publishers Ltd 1997, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
* Department of Law, Lancaster University, Bailrigg, Lancaster LA1 4YN,
England
I would like to acknowledge the helpful comments and suggestions of Bogumila Puchalska-
Tych on earlier drafts of this article.
285
Review Article
Habermas’s New Contribution to Legal Scholarship
MICHAEL SALTER*
Review Article
force which emerges from proto-legislative deliberations within the diverse
public spheres of civil society, into legislative enactment and judicial application
within a constitutional state.5Certain normative commitments are unavoidably
presupposed by the act of participating within communicative processes of
deliberation which constitutional arrangements claiming democratic legitimacy
must respect. These ‘idealizations’ include the accountability of speakers for
their statements, and their commitment to respect the outcome of rational,
unrestrained deliberations guided by force of better argument. Habermas
maintains that there is a clear, internal connection between the implications
of these communicative presuppositions, a modern system of law and the
constitutional institutionalization of respect for basic democratic principles
of self-governance under the rule of law.6
The institutional focus of BFN upon the social pre-conditions for
deliberative democracy was first set out in a more concise (if underdeveloped)
form in the Tanner Lectures On Law and Morality.7BFN represents
Habermas’s welcome return to fundamental constitutional questions about
the interplay between deliberative forums of civil society and the legislative
process that were addressed by his first major work, The Structural
Transformation of the Public Sphere.8The final chapter of BFN culminates
in a new procedural paradigm for legal analysis that responds constructively
to its own diagnosis of both the trajectory of legitimation issues within
modernity, and the deficits of alternative approaches to law.
Below, I will first address Habermas’s analysis of the contemporary role
of law with respect to social integration, before illustrating how his own
distinctive ‘procedural paradigm of law’ fuses a dialectical methodology with
a Neo-Kantian jurisprudence.
LAW’S INTEGRATIVE ROLE UNDER POST-TRADITIONAL
CONDITIONS
Habermas discusses the role of law within a sociological theory of the
trajectory and problems of modernity. He supports the contemporary
relevance of his own project as a response to urgent historical crisis-
imperatives in democratic legitimacy. These require the practical reinstatement
of an endangered, normative grounding to law which is both internal and
rationally acceptable. Habermas analyses the problem of securing a basis
for legitimacy during an era characterized by the increasing fragmentation
of those ‘traditional values’, and stable cultural identities, which previously
underpinned legal regulation.9He asks on what basis is morally binding law
– and thereby a pre-eminent mode of rational social integration – still
possible? How can a post-traditional society be both co-ordinated and
reproduced through ‘communicative action’, that is, action which is oriented
towards the achievement of mutual understanding and rationally-motivated
consensus about various validity claims? Habermas’s answer is that the
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© Blackwell Publishers Ltd 1997
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