Judgment and Imagination in Habermas’s Theory of Law

Jürgen Habermas is universally recognised as an extremely influential intellectual and a major philosopher. It comes as no surprise, then, that his contributions to the theory of law and the constitutional state -whose most developed statement is contained in Between Facts and Norms (Habermas, 1997), hereafter, BFNare widely cited and discussed by legal scholars. In spite of an ever-growing body of commentaries, both within and beyond legal academia, his contributions, specially those relating to the questions that have concerned the internal debates of contemporary jurisprudence, remain in important respects somewhat underexplored and insufficiently understood, partly because of difficulties derived from the very style and character of Habermas' philosophical approach.

Between Facts and Norms: Contributions to a Discourse Theory in Law and Democracy (1996, hereafter BFN) is Jürgen Habermas’s major work in legal and political philosophy. Many scholars consider BFN as a magnum opus that may be counted among the great theoretical discussions on law produced by the German intellectual tradition, including the legal philosophies of thinkers as important as Kant, Hagel, and Weber. Extremely rich in ideas, the book has been systematically developed across a broad range of disciplines as different as sociology of law, constitutional and democratic theory, legal studies, etc. and examines a multitude of intellectual traditions. BFN particularly bridges continental and Anglo-American outlooks, absorbing Anglo-American legal and constitutional theory into a primarily European theoretical framework of law. As a result BFN is not an easily accessible book, especially considering Habermas’s difficult style of writing and the fact that the original language of BFN is German rather than English. In this essay we will examine some of the most basic themes of the book. But let us open up the discussion with an overview of Habermas’s intellectual life.

Theory, Culture & Society, 1990

Having completed his primary task with the publication of his magnum opus -the Theorie des kommunikativen Handelns (1981) -Habermas turned to a closer examination of the history of philosophy and the contemporary meaning of philosophy. Habermas presented the critical evaluation of 'old European' paradigms in Der philosophische Diskurs der Moderne in 1985. The results of this attempt to situate political and social philosophy became the Tanner Lectures in 1988, which were published in the same year as Nachmetaphysisches Denken.

2022

Two thousand and twenty-two marks thirty years since the original publication of Jürgen Habermas’ Faktizität und Geltung (In Between Facts and Norms). On publication, Habermas’s concerns were framed by the recent collapse of so-called 2022 marks thirty years since the original publication of Jürgen Habermas’ Faktizität und Geltung (In Between Facts and Norms). Thirty years on, we believe it is necessary to reflect and discuss the current challenges to Faktizität und Geltung in terms of three issues relating to the theory and philosophy of law. First, how does Habermas’s law theory respond to economic globalisation and its impact on legal systems? Does the theory’s scope possess timeless theoretical elements that make it suitable to address phenomena that have recently struck mainstream legal theory, such as the “non-state law” or law without the state? This is relevant considering global power shifts that have weakened the state as the primary juridical determinant. These factors have brought law theories into trouble, such as legal positivism. Similarly, it is worth asking what further conclusions we might draw from Habermas’s analysis of the tension between the co-originality of public and private autonomy. Indeed, this era seems to be hallmarked by the strengthening of some private autonomies through an uncontrolled expansion of their economic capacities by dint of the legal form. Second, addressing subsequent debates on the foundations of the discursive law theory and its internal elements could be valuable regarding certain aspects of the theory. For example, according to Habermas, is modern law autonomous? If so, what kind of legal autonomy does it have? Moreover, how does it interact with other normative orders’ autonomy? Likewise, assessing what lessons the procedural paradigm of the law leaves us for today’s contemporary plural and unequal societies is also of interest. Finally, thirty years may seem a relatively short time, but the period has witnessed many unprecedented political events and social processes. Significant critical reflection of them has taken place. Therefore, it is necessary to look at the effects that Faktizität und Geltung has had within critical legal theory and how it dialogues with subsequent developments within the field. What does Habermas’s critical theory of law offer us in today’s current framework marked by a plurality of critical legal approaches? Additionally, we invite you to reflect on the value and contribution of Faktizität und Geltung considering developments over the last three decades. E.g., transformations in the public sphere, the consolidation of global capitalism and the increasingly ambivalent embedding of the legal form with the economy. In this context, the tension between facticity and validity makes law seem paradoxical, intertwined as a liberating and oppressive social tool at the same time. This workshop aims to generate a discussion mainly based on the aforementioned questions. However, other topics are also of interest and welcome, insofar as they align with the legal theory and philosophy of law in the context of Jürgen Habermas’s complete oeuvre. All interested applicants are invited to send abstracts of 500-800 words as a text file (not pdf) in English to [email protected] and [email protected] before 31 May 2022 at the latest. The texts should be written using Times New Roman font size 12, 1.5 line spacing. Abstracts should indicate possible paper structure, an outline of the argument, tentative bibliography and five keywords. Likewise, institutional affiliation and a very brief biography of the submitters are requested (no more than 100 words).

Ethics & International Affairs, 2001

Over 200 years ago, the German philosopher Immanuel Kant reported that the peoples of the earth were on a determined march toward universal respect for human rights. The idea of "cosmopolitan civil rights is no fantastic and extravagant legal notion," he declared. 1 If this respect could be codified in a positive form as public law, "perpetual peace" was at hand. This remarkable announcement gave voice to an intellectual and even political sympathy for universalist justice that stood, sadly, in inverse relation to the social and economic conditions of its age. Today, under the aegis of globalized capitalism and the information revolution, we are facing the obverse dilemma. With only chimerical institutions guaranteeing political rights on a global scale, humans have become cosmopolitan customers rather than citizens. The faint voice of the universalist quavers only dimly.

Thoughts about law, beside Habermas’ text: Morality, Law, Politics -LAW’S ABSTRACT AND UNIVERSAL SHAPE -THE LEGITIMATING POWER OF LAW’S RATIONALITY -MOVING AWAY FROM LAW’S FORMAL RATIONALITY -HABERMAS AND LAW’S PROCEDURAL RATIONALITY -LAW AND MORALITY -A PROJECT FOR EUROPE

The requalification of Habermas’ discussions on political philosophy and legal theory after the publication of Zwischen Naturalismus und Religion (2005), and his most recent texts and debates on religion and the public sphere, suggest a revision of the Habermasian theory of rationalization as it was firstly presented in Theorie des Kommunikativen Handelns (1982), especially on what concerns the processes of dessacralization and the linguistification of religious authority. In search of contributing to this revision, this paper intends to focus on the problem of a supposedly “lost” aesthetic-expressive understanding of religious authority in Habermas’s theory of rationalization, which may have contributed to a theory of law in Faktizität und Geltung (1992) that does not give satisfactory account to the aesthetical-expressive character of the modern understanding of legal authority. A better understanding of this special character, however, may contribute not only to the avoidance of fundamentalisms and new attempts of “aesthetization of politics”, but also to a rational strengthening of the solidarity of the citizens of democratic constitutional states.

"Sociology and Anthropology", 2015

The essay discusses Habermas' defense of cosmopolitic rights. Using Carl Schmitt's categories and the principle of political realism, the author shows the limits of Habermas' idea of human rights as legal rights and not simply as moral rights. The impossibility for Habermas to find a solution to the difficult relationship between moral and legal dimensions of human rights proves that the theory of human rights is a mere ideology.

Ratio Juris, 2009

In this article we consider certain elements of the normative theory of Jürgen Habermas in the light of the proposals of Bruce Ackerman, with a view to strengthening a concept of deliberative democracy applied to the legitimation of juridical rules. We do not construct a hierarchy of the two positions, but seek to bring together certain elements to achieve a common project. As the starting point for examining the work of the two authors, we take the scheme proposed by Habermas in Faktizität und Geltung. In this connection, through the work of Ackerman, we intend to fill in some of the gaps that Habermas appears to have left in the theory of radical democracy applied to the law. The work of Ackerman can make a significant contribution to deliberative democracy, to the discourse principle that Habermas defines, and to the contractualist theories from a liberal perspective. The study of these contributions makes possible a critical judgment that enables the legitimation of juridical rules carried out by Habermas to acquire greater practicity. In examining the epistemological status of juridical science and law, we attempt to determine the weight and the performance of normative democracy. In Tarr's view, it is a matter for philosophers to examine direct democracy and its desirability.