The Concept of Law from a Transnational Perspective

Detlef von Daniels

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317037538
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

This book brings together the fruits of different traditions in legal philosophy and draws on them to develop a systematic thesis on the concept of law. The work uses a legal model to explore the underlying question of how the current phenomena of transnational law are best understood, in combination with an examination of the traditions of Jürgen Habermas's critical theory and H.L.A. Hart's analytic jurisprudence. This leads the author to conclude that the key to a fruitful dialogue and comprehensive understanding is to appreciate that the concept of law is not state-cantered and must reflect relationships to other legal systems.

PART I
Habermas’s Understanding of Law

Analyzing Habermas’s writings requires dealing with a complex field of theoretical approaches, which have been gathered over time and synthesized into his work. As the aim is to draw attention to one central issue, which runs throughout Habermas’s theory, it will be necessary to range far afield.

First, the position that law occupies in Habermas’s Theory of Communicative Action1 will be discussed in brief. The discussion will concentrate on Habermas’s historical exposition of the changing role of law in society. It will be argued that Habermas’s exposition distorts a number of historical facts and has thus led to the result that transnational phenomena remain systematically underexposed. Secondly, the critique will be carried over to Between Facts and Norms2 where the same limitation to the national sphere appears in a different guise. Finally, the effects of both theoretical prefigurations for Habermas’s analyses of the postnational constellation will be diagnosed.

1 Jürgen Habermas, Theorie des kommunikativen Handelns (Frankfurt am Main: Suhrkamp, 1981); English translation: Theory of Communicative Action, trans. Thomas McCarthy (Boston, MA: Beacon Press, 1984), hereinafter cited as TCA. References to Habermas’s works will be given for the English and the German edition. The first page number will always refer to the English edition, the second page number after an oblique stroke to the German edition.

2 Jürgen Habermas, Faktizität und Geltung. Beiträge zur Diskurstheorie des Rechts, 2nd edn (Frankfurt am Main: Suhrkamp, 1994); English translation: Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, 2nd edn, trans. William Rehg (New Baskerville, MA: MIT Press, 1996), hereinafter cited as BFN.

Chapter 1
Law in the Theory of Communicative Action

The Outline of the Theory

The Theory of Communicative Action is Habermas’s magnum opus. It includes reflections on philosophy of language, social philosophy and to some extent political philosophy, while dealing with a whole range of classical and contemporary writers from sociology and philosophy. For the present purpose it is, however, not necessary to follow Habermas’s intricate line of thought throughout the whole book. As the aim is to reveal how the theoretical concepts feature in sociological analyses it suffices to introduce those concepts without worrying much about their derivation. But first, it is to be noted that Habermas pursues a specific approach to social theory. The theory is meant to be a critical theory of society, that is, a theory that explains not only the genesis and pathologies of modern society but one that provides a normative point of view as well. Habermas maintains that only when a normative point of view is included in a social theory can the rationale of the evolution towards a modern society be profoundly understood. For this reason, he has developed a theory of communicative action which forms the basis for a critical theory of society. The theory may be outlined by introducing the most important theoretical concepts: communicative vs. strategic action, rationalization of lifeworld, and the uncoupling of lifeworld and system. The basic level of his theory is a theory of action. Habermas distinguishes between two kinds of social action: communicative action and strategic action.1 Strategic actions are actions aimed to influence others for the purpose of achieving a certain end. The goal of communicative action on the other hand is not to influence others for personal gains, but to reach a consensus or mutual understanding as a basis of action. For this reason, communicative action requires engaging in the deliberation of the definition of situations as well as the guiding norms and principles. Strategic action and communicative action are not merely two separate types of actions but are in fact specifically related. Habermas claims that communicative action is the original modus operandi and that strategic action presupposes the existence of communicative action.2 Only with this conjunction can a coherent social theory be based on communicative action without it breaking up into two separate components.

The link between the theory of communicative action and social theory is mediated through the concept of the lifeworld. Habermas argues that claims raised in communicative action are often unquestioned or not critiqued, since they are nestled within the contours of an undisputed, shared lifeworld. However, as no claim or assumption is absolved from being criticized or questioned deliberation required by communicative action is the only way that the lifeworld can be integrated. Therefore, the “symbolic reproduction of the lifeworld” through communicative action demonstrates that modern societies can be rationally integrated without the need to make use of premodern religious certainties or the simple reliance on unsubstantiated values or beliefs. Habermas calls the changeover from premodern integration based on religious certainties to modern integration ultimately based on communicative action “rationalization of the lifeworld.”3

The rationalization of the lifeworld is only one aspect of the overall process of rationalization that characterizes modern societies. The other aspect is the differentiation of society in various subsystems, especially the economy and state government. According to Habermas, the reason for this is that coordination cannot always be reached based on communicative action. Therefore, the “nonsymbolic steering media [of] money and power” facilitate coordination on the basis of strategic action, for example, exchange of goods for monetary profit and/or reaching binding decisions regarding bureaucratic efficiency.4 In contrast to the social integration of the lifeworld, Habermas calls this second type “system integration.” He holds that modern societies must be conceptualized as both lifeworld and system.5 Lifeworld and system, as theoretical concepts, are not simply two aspects of societies: rather they mark two distinct social spheres.

The uncoupling of lifeworld from system is thus a concurrent “symptom” of modernity. Habermas does not see the uncoupling as problematic per se, but only when the subsystems have repercussions on the lifeworld to the effect that the communication potentials of the lifeworld are being eroded or calcified. Habermas refers to this process as the “colonialization of the lifeworld.” He argues that “the media controlled subsystem of economy and state intervene in the symbolic reproduction of the lifeworld by monetary and bureaucratic means.”6 The colonialization of the lifeworld is finally the focal point of the Theory of Communicative Action, in which Habermas attempts to bring together historical and systematic investigations. Habermas himself admits that up to this point his theory has provided little empirical evidence, and especially “statements about an internal colonialization of the lifeworld are at a relatively high level of generalization.”7 Hence, he has put the theory to the test by analyzing the development of law in modern society, which ultimately leads to the colonialization of the lifeworld. The development of law thus plays a crucial role in Habermas’s attempt to demonstrate the usefulness in making a distinction between lifeworld and system to serve the aims of a critical social theory. The account Habermas gives of this development can therefore be used to assess the overall theory.

For Habermas, law is a system that rests on the presupposition of strategically acting individuals.8 The very characteristic of modern law in contrast to premodern law is that it does not merely transform previously established institutions, based upon a traditional ethos, but that it establishes institutions (subsystems), which, for this very reason, exhibit no remnants of forms of communicative action. The decoupling of law from the lifeworld has, on the other hand, the effect that modern law is in need of justification or, in other words, the system needs to be “anchored” in the lifeworld. To this end, Habermas has assessed the decoupling and subsequent anchoring of system and lifeworld as a sequence of “thrusts of juridification.” The empirical evidence provided for this process of juridification will be the focus of the analysis here. For the sake of argument, Habermas’s basic concepts, including their historical and systematic derivations will be taken as a matter of course. The detailed analysis of the empirical evidence is nevertheless a good place to assess the impact and reach of the theory. For in Habermas’s work, empirical evidence is not merely an application of an abstract theory, but social analysis is the pivotal point of a critical theory of society: to provide a normative reconstruction of real social developments. It would be a mistake to read Habermas as either providing just a few theoretical concepts which may be used in just any context or as only developing normative guidelines. The idea of a critical theory is to show that normative standards form already constitute part of the lifeworld and can be revealed in sociological analyses. Hence, it is useful to concentrate on these analyses.

The Thrusts of Juridification Under Scrutiny

In the development of modern societies from the eighteenth century onward, Habermas distinguishes four “global thrusts of juridification.” According to Habermas, the first thrust led to development of the bourgeois state during the era of Absolutism, the second thrust of juridification led to the constitutional state of nineteenth-century Germany, the third to the rise of the democratic state and the fourth to the social and democratic state. These thrusts of juridification are used by Habermas as “analytical terms,”9 which means they do not always correspond with particular legal developments. However, this reservation should not exempt Habermas from all empirical objections, as the analysis of the juridification thrusts is in itself the only way to prove the more general theoretical claims. Objections based on the perception of historical developments must, therefore, be admitted insofar as they draw attention to systematic deficits at the theoretical level. For this reason, historical facts that do not fit into Habermas’s account of juridification thrusts will be examined. The general line of the critique will be that to serve a rather restricted concept of law Habermas has omitted transnational legal aspects that might put into question the paradigm of the nation state as the end of historical development.

The Absolutist State: System Decoupled from the Lifeworld

Habermas sees a first thrust of juridification occurring in Europe during the era of Absolutism: “It can basically be understood as an institutionalization of the two media through which the economy and state were differentiated into subsystems.”10 Thus, the state and the economy are seen as subsystems, which are systematically integrated but at the same time detached from the lifeworld. The subsystem of the economy is further characterized as “strategically acting ‘legal persons’ who enter into contracts with one another.”11 “Modern law,” bearing the features of positivity, generality and formality, is said to be merely a means to facilitate “legal persons” to enter into contracts, acquire, dispose, and bequeath property. The state, being the other component of the system, is defined by the “monopoly on coercive force as the sole source of legal domination. The sovereign is absolved from orientation towards any particular policies or specific state objectives.”12 The state and the economy are thus the two systematically integrated subsystems. Habermas goes on to argue that from the perspective of the system, the lifeworld can only be negatively characterized as “everything that is excluded from the system and left to private discretion … [Its] essence lies in the corporatively bound, statusdependent conditions of life which had found their particularistic expression in feudal laws concerning persons, profession, trade and land.”13 This state of affairs where two systematically integrated subsystems are decoupled from the lifeworld is the starting-point for the subsequent juridification thrusts, “a lifeworld which at first was placed at the disposal of the market and absolutistic rule little by little makes good its claims. After all media such as power and money need to be anchored in a modern lifeworld.”14

Several points in the analysis, taken as a historical description, are striking. Habermas seems to imply that lifeworld and subsystems can be clearly separated and that the usage of modern law is sufficient to characterize the subsystems of state and economy. Consequently, the symbolic reproduction of the lifeworld through communicative action can only take place, according to this notion, outside the subsystems as well as outside the law. But this analysis is hardly an empiri...

Table of contents

• Cover Page
• Dedication
• Title Page
• Copyright Page
• Contents
• Series Editor’s Preface
• Preface
• Introduction
• PART I HABERMAS’S UNDERSTANDING OF LAW
• PART II HART’S CONCEPT OF LAW RECONSIDERED
• PART III LAW IN A TRANSNATIONAL PERSPECTIVE
• Bibliography
• Index