The Discourse Theory of Law and Democracy
Hugh Baxter




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 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-five-year 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. 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 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 an incompatibility between the “functional imperatives” of reproducing (primarily) the economic system and the requirements of society seen as “lifeworld”—social integration, socialization of persons, and cultural reproduction. The framework Habermas develops in Theory of Communicative Action still informs his work today, including his understanding of law and democracy. Accordingly, in Chapter One of the present book I provide a critical analysis of that framework.

Habermas wrote Legitimation Crisis and Theory of Communicative Action during his eleven-year stay as director of the Max-Planck Institute for social research in Starnberg, West Germany. In 1982, he returned to Frankfurt. His academic writing for the first few years back at Frankfurt centered around developing a communicative or “discourse” theory of ethics from his theory of communicative action13 and responding to the debate over modernity and postmodernity. With respect to the latter, Habermas maintained his position that the critical and rational potential of modernity had been realized only selectively in the development of a capitalist economy and bureaucratic state apparatus. Modernity is thus, in Habermas’s view, an “unfinished project.”14 His Philosophical Discourse of Modernity (1985) was notable for his engagement (though disappointing in my view) with Michel Foucault and Jacques Derrida, considered at the time as perhaps Habermas’s top theoretical rivals.

Habermas’s political interests became more sharply engaged with the debate, beginning in 1986, over West German revisionist historians’ account of the Nazi period. In this public political debate, carried out in the pages of Die Zeit and Die Frankfurter allgemeine Zeitung, Habermas argued that his conservative opponents had minimized German responsibility for the Holocaust. Against the conservative alternative of “national pride,” Habermas began to develop the idea of “constitutional patriotism” as the only form of national attachment that could do justice to universalistic principles of morality and political democracy. This idea of constitutional patriotism has remained important in Habermas’s recent work, emerging as his idea of responsible political attachment in increasingly multicultural societies.

Around the same time, and inspired by his ongoing encounter with Weber, Habermas began to turn his attention systematically, for the first time, to law and legal theory. His 1986 Tanner Lectures, “Law and Morality,”15 took their departure from Weber’s sociology of law and his conception of political legitimacy. The next year Habermas convened a five-year working group on legal theory that involved several German colleagues trained in the field. By 1992, Habermas had completed his monumental Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy.16 My critical analysis of Between Facts and Norms is the core of the present book: Chapters Two, Three, and Four.

Habermas’s project in Between Facts and Norms has two parts. The first is the “discourse theory of law and democracy” proper, which Habermas describes as a “reconstruction” of the “normative self-understanding of . . . modern legal orders.”17 The central theme of this part of the project is that legitimate law and radical democracy mutually presuppose one another. Habermas’s normatively ambitious discourse theory first develops an account of the “system of rights” that must be recognized, in one form or another, for a legal order to be legitimate. He then turns to the “principles of the constitutional state” that would be required to secure those rights. Habermas next “test[s] and elaborate[s] the discourse concept of law and democracy” against, first, contemporary discussions in legal theory, and, second, contemporary controversies in constitutional practice and theory.18

The second main part of Habermas’s project locates this discourse theory in a model of modern complex societies. Habermas has two purposes here. First, he wants to examine whether the discourse theory, developed through normative “reconstruction,” actually has a purchase on factually existing social conditions. Second, elaborating his theory of law and democracy through social-theoretical concepts allows him to deepen, and to make more concrete, his normative theory.

The plan of the present study is as follows. I begin, in Chapter One, by setting out the basic concepts of social action and social theory that Habermas incorporates from his work of the late 1970s and 1980s. Here my main focus is on the argument of Habermas’s two-volume Theory of Communicative Action (1981). In Chapters Two and Three I address the first part of Habermas’s work on law and democracy—the normative “discourse theory” proper.

Chapter Two considers Habermas’s “reconstruction” of modern law’s “normative self-understanding.” I discuss in the first part of that chapter Habermas’s account of the basic problematic of modern law—the risk of dissensus that has increased with social modernization—and I analyze the tension between law’s “facticity” and law’s “validity” that organizes Habermas’s entire theory of law and democracy. With that as background, I critically examine in Habermas’s analysis of the “system of rights.” After a section comparing Habermas’s derivation of that system with Rawls’s better-known generation of principles of justice from the original position, I go on to suggest some skepticism about Habermas’s largest claims for the system of rights: that it reconciles longstanding tensions between “private” and “public autonomy” and between the idea of basic rights and the idea of popular sovereignty. I then criticize Habermas’s account of the constitutional state, particularly his reliance on what he calls “the discourse principle.” This principle is the basis for Habermas’s theory of law and democracy, but I argue that it cannot bear the full weight that Habermas places on it.

In Chapter Three, I turn to Habermas’s “testing” of the discourse theory against recent developments in the theory and practice of adjudication. The first part of Chapter Three addresses the general theory of adjudication that Habermas develops in dialogue with Dworkin’s theory of “constructive interpretation.” The second part of Chapter Three considers the special case of constitutional adjudication. In both parts, I am critical of the uses to which Habermas puts the notion of judicial “discourses of application”—a notion that is central to Habermas’s idea of courts’ appropriate role in a separation-of-powers scheme. An additional difficulty in Habermas’s theory is its inability to account for—and Habermas’s understandable unwillingness to exclude as illegitimate—the common-law adjudication process that is basic to Anglo-American law. I criticize also the distinction Habermas tries to establish between his “proceduralist” theory of constitutional adjudication and the “neorepublican” theory of Frank Michelman. Finally, I consider the implications that Habermas’s proceduralist theory might have for constitutional law and democratic politics. Here I engage some recent developments in American constitutional law: Supreme Court decisions in the last few years that concern how electoral districts are to be drawn and whether corporate speech may be permitted to dominate public discussion surrounding elections.

Chapter Four focuses on the second part of Habermas’s theory of law and democracy: the “communications theory of society” and, in particular, the social-theoretical model of “system” and “lifeworld” that Habermas uses to organize that theory. My contentions will be that while Habermas appropriately chooses to revise the model presented in Theory of Communicative Action, and while the strategy of argument is a refreshingly prodemocratic conception rather than politically defensive crisis theory, the revised model nonetheless introduces some difficulties. I suggest in the last section of Chapter Four that Habermas might improve that model by selectively incorporating ideas from his long-time theoretical adversary, systems-theorist Niklas Luhmann.

During the time Habermas was writing Between Facts and Norms, the Soviet Union collapsed, and Germany was reunified. As the nation’s leading public intellectual, Habermas turned his attention to the new political situation, publishing (to speak for the moment only of books) Die nachholende Revolution (1991), focusing on the political developments in Eastern Europe and particularly East Germany; A Berlin Republic: Writings on Germany (1995); and The Inclusion of the Other (1996). The last collection is particularly rich, as it contains Habermas’s side of his much-anticipated 1995 debate with preeminent American political philosopher John Rawls as well as Habermas’s first systematic attempts to consider the possibilities for democracy beyond the nation-state. Inclusion of the Other also features Habermas’s taking up of the Kantian political project of “perpetual peace” under the heading “the constitutionalization of international law.”

Habermas since has pursued the idea of (what he calls) the “postnational constellation,” particularly concerning the possibilities for democracy beyond the nation state, and he has pressed severe criticism of American intervention in Iraq under the second Bush administration. During these years Habermas has become a prominent advocate of European integration, though in his most recent discussions he has sharply criticized what he takes to be the undemocratic means through which that integration, after the failure of the proposed European constitution, has been pursued.

Finally, and particularly in his Between Naturalism and Religion (2005), Habermas has sought to understand the worldwide resurgence of religion.19 He has weighed in on the debate over multiculturalism and the discussion over the role of religious argument in the sphere of democratic public debate. Along these lines, Habermas has jointly published a dialogue with Pope Benedict XVI, and he has sought to engage the moral and ethical questions surrounding new biotechnologies.20

In Chapter Five I consider this spate of writing since Between Facts and Norms. In keeping with the present book’s focus on Habermas’s theory of law and democracy, I explore in particular three of Habermas’s main themes: the role of religion in the public square, political-philosophical issues surrounding multiculturalism, and the possibilities of democracy beyond the nation-state (with special attention to the European Union).