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Benjamin N. Cardozo School of Law




Jürgen Habermas's recent work on law and democracy divides into two parts. With his "discourse theory of law and democracy," Habermas seeks to explain the conditions under which modern constitutional legal and political orders may claim legitimacy. Here Habermas's method is primarily philosophical and legal-theoretical. The second part of the project – the part on which this article focuses – develops what Habermas calls his "communication theory of society." Here Habermas seeks to "translate" the normative conclusions of his discourse theory into a substantive social-theoretical model. The idea is to determine whether the ambitious normative theory of democracy is plausible under contemporary conditions of social complexity.

Habermas's presentation of the "communication theory of society" is difficult to understand, partly because he invokes, without much explanation, the "two-level" theory of society that he developed in his work of the 1970s and 1980s. I return to that work to excavate the basic concepts of "communicative action," "system," and "lifeworld." I discuss the model of society developed in that earlier body of work – a model of "interchange" between the normatively rich "lifeworld" and the money- and power-driven economic and administrative systems. My account is critical. Each distinction on which Habermas relies to construct the "interchange" model is drawn too sharply, and the resulting model makes the normative ideal Habermas consistently has defended – radical democracy – literally inconceivable.

The more recent work on law professes continued loyalty to the system/lifeworld conception of society. But at the same time, it develops a different model – the "model of the circulation of power" – that is designed to show the possibilities for, and resistances, to radical democracy. I argue that the new model is irreconcilable with Habermas's earlier and unretracted conceptions of "system" and system/lifeworld "interchange." The unacknowledged amendments are significant improvements, I argue, but one effect is to leave the notion of social "systems" unclearly theorized. I suggest in the final part of the article that Habermas could shore up his "system" conception by selectively and critically appropriating insights from a more recent version of social systems theory – the "autopoietic" theory of Habermas's longtime theoretical sparring partner, Niklas Luhmann.

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