The jurisprudence of Jürgen Habermas

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.

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).

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.

Endoxa, 2021

The aim of this paper is to analyse the consequences of Habermas´ discourse theory of law and democracy [1992] for his model of critical theory as a theory of communicative action [1981]. I defend that such a theory means Habermas´ attempt to correct the undue and previously maintained dichotomization between "system" and "lifeworld." To support this interpretation, I first present the meaning of Haber-mas´ critical theory as a theory of communicative action by focusing on the "system/ lifeworld" dichotomy, on the thesis of internal colonization and on some problems associated with this scheme. Second, I analyze the key elements of the discourse theory of law and democracy. Lastly, I show that this theory allows Habermas to correct some of the above-mentioned problems.

JÜRGEN HABERMAS: KEY CONCEPTS, Barbara Fultner, ed., (Acumen), 2011

This chapter provides an introductory overview of Jürgen Habermas’s discourse theory of law. A survey of his main theses concerning law is organized according to three broad perspectives: 1) history and sociology of law, 2) philosophy of law, and 3) theory of legal adjudication.

In this paper, I will try to defend the claim that Habermas proceduralization rests on a functionalist understanding of the legal form, which can become an impediment to legal change. To do this, I will first address his co-originality thesis, that is, the internal connection between private and public autonomy. Second, I will briefly discuss the structure of the System of Rights and the justification of the legal form. Finally, my paper will also focus on some problematic issues concerning legal transformations in this understanding of legal form.

Since the publication of Between Facts and Norms, it appears to have gone largely unremarked by critical theorists that Habermas has wholly abandoned the neo-Parsonian systems-theoretic account of social systems developed in his middle period. In this paper, I argue not only that Habermas has developed a new vocabulary and theoretical structure for dealing with social systems such as law, but also that this new approach to social systems is incompatible with the neo-Parsonianism of social systems developed in that early work. This is not to say that Habermas' work in Between Facts and Norms should be set aside, but rather that the Parsonianism of The Theory of Communicative Action must be abandoned if Habermas' jurisprudential project is to go ahead.

2023

This paper explores a normative layer of Habermas’s public sphere in its relation to human rights. His public sphere came into being as a result of a spontaneous nonconformity manifested by the early bourgeoisie’s reaction to an absolutist regimen making inroads in the realm of basic human liberties; it managed to survive the changeable conditions of society and state thanks to its participants’ capability of cultivating collective self-determination, fed from the outset by the intellectual claims of modernity. Thereafter, the link between Habermas’s public sphere and human rights bifurcates, leading concurrently to liberal individual rights (Menschenrechte) and to the republican freedom of popular sovereignty (Volkssouveränität). Further revisions and corrections transpose that simple dualism from the clear-cut bourgeois world of universal morality into the realm of legalism and the protocols de rigueur in the world of systems. Habermas integrates individual human rights and popular sovereignty in the procedures of a democratic state, overcoming this ostensibly irreconcilable duality in his genuine claim about the co-originality of civil autonomy. This thesis institutionally unifies universal pre-constitutional morality, with legalism regulating the democratic world of legal subjects (citizens) and their constitutionally guaranteed entitlement.

Ancilla Iuris, 2014

Since the publication of Between Facts and Norms, it appears to have gone largely unremarked by critical theorists that Habermas has wholly abandoned the neo-Parsonian systems-theoretic account of social systems developed in his middle period. In this paper, I argue not only that Habermas has developed a new vocabulary and theoretical structure for dealing with social systems such as law, but also that this new approach to social systems is incompatible with the neo-Parsonianism of social systems developed in that arly work. This is not to say that Habermas' work in Between Facts and Norms should be set aside, but rather that the Parsonianism of The Theory of Communicative Action must be abandoned if Habermas' jurisprudential project is to go ahead.