University at Buffalo School of Law
In his 1992 book, "Between Facts and Norms," Jürgen Habermas develops a two-part theory of law and democracy. This article examines the first part – the “reconstructive” part – in which Habermas seeks the most basic principles that justify modern legal and political orders, as well as the institutions and practices through which those principles are realized. Habermas's aims in this part of his theory are ambitious. His largest goal is to reconcile classic tensions in political theory, most notably the tension between basic rights and democracy – or, in terms of American legal theory, the “countermajoritarian difficulty.” He argues that, properly understood, basic individual rights and democracy do not conflict but in fact mutually presuppose one another. This reconciliation is the task of his “system of rights,” i.e., his account of the basic rights that must be recognized if a modern legal and political order is to be legitimate. Habermas’s reconstructive theory then turns to an account of the principles of the “constitutional state” (Rechtsstaat, also translated as “the rule of law”), through which the system of rights is institutionalized. According to Habermas, law is legitimate only to the extent that it emerges from a broadly inclusive process of participatory democracy. The core of Habermas’s account of the “constitutional state” is an analysis of how state power (“administrative power,” in his terminology) may emerge from, and be limited by, the “communicative power” formed through citizens’ public political discussion. Habermas reinterprets the separation-of-powers idea in terms of his “discourse theory” – that is, his theory of the kinds of reasons and arguments that appropriately may be used to defend, criticize, and justify different kinds of claims. He focuses particularly on the role of adjudication. According to Habermas, courts are limited to “discourses of application,” in which they apply democratically enacted norms to particular cases. They are not, according to Habermas, permitted to engage in “discourses of justification,” through which norms are created.
This article first expresses skepticism about whether Habermas genuinely has reconciled the classical tension between basic rights and democracy. The purported reconciliation, I argue, operates largely by definitional fiat and succeeds only at a purely conceptual level. The tension between basic rights and democracy remains in the actual operation of a constitutional state. My main critical targets, however, concern the notion of separated powers and adjudication, particularly judicial review. I criticize the basic premise of Habermas’s theory of the constitutional state: the so-called “discourse principle,” according to which a norm (whether legal or moral) is justified only if it could receive universal assent in an unconstrained discourse. I show that this idea is too demanding to justify any substantive legal norms, and I maintain that Habermas’s recourse to procedural justification is futile.The conclusion I draw is that while modern legal orders institutionalize discourse of various kinds, and at various sites, they cannot be said to institutionalize Habermas’s “discourse principle,” with its requirement of (even potential) universal assent.
I am more critical still of Habermas’s general theory of adjudication. One difficulty I identify is that Habermas offers no account of judicial interpretation. A second and equally serious shortcoming is that Habermas’s theory leaves no place for common-law adjudication. Common-law decisionmaking requires “discourses of justification,” not just the “discourses of application” to which Habermas would confine the judiciary. Further, common-law norms lack the democratic pedigree that Habermas’s theory of legitimacy would require. While of course Habermas could argue straightforwardly that common-law adjudication is simply illegitimate, he makes no such argument explicitly. Moreover, I contend, if he had made such an argument, it would have been inconsistent with the premises of a “reconstructive” theory. Such a theory cannot reject, as a simple mistake, a practice that is as basic to the reconstructed order as common-law adjudication is to Anglo-American legal systems.
I take issue, finally, with Habermas’s account of judicial review. I maintain that the centerpiece of this account – the distinction between “discourses of justification” and “discourses of application” – cannot be drawn nearly so sharply as Habermas believes. Application of general constitutional norms inevitably requires courts to develop more specific rules that are not explicit in the text of the governing norm. Establishment of these rules is as much “justification,” in Habermas’s sense, as it is “application.” Failure to recognize this point undermines Habermas’s critique of both German constitutional practice and Frank Michelman’s “republican” constitutional theory. Further, despite his main theme of deference to democratically enacted legislation, Habermas’s demanding criteria for democratic legitimacy push him toward a radical judicial activism. Habermas’s theory of judicial review speaks with two voices, I argue, and the conflict between these voices is insoluble because the theory is developed too abstractly.
Habermas's Discourse Theory of Law and Democracy,
Buffalo Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/384