Jurgen Habermas - Sociology of law PDF

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Sociology of law...

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Jurgen Habermas  

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Law as communicative rationality Societies have become increasingly pluralistic and fragmented (as with systems theory) o Societies have split into distinctive moral, religious and professional groups o If it is splintered in this way, by implication there are no common or shared values that hold society together o If this is the case, the legal system becomes fragmented and separate from society- has become isolated o This theory tries to reconceptualise law so that it can become reintegrated into society. Law then forms the primary role for which social integration is possible Knowledge in a post-metaphysical world o Modernity has broken long established traditions such as religion o How to build knowledge?  fallibilistic approach o We cannot know “absolute” truth, but we can agree on what is true on the basis of our current shared understanding of the world Theory of communicative action o Communicative action vs strategic action o Communicative action: communicate reason to people we interact with; providing reasons for action  Agreement that personal goals are reasonable and worthy of cooperation  Claims merit acceptance because they are valid in some way o Strategic action: more prone to manipulate others to achieve objective (more efficient, but does not create mutual understanding, breaking down of communication) o Three dimensions of validity to any argument  Inner world (authenticity)  Communicative relation with hearer (rightness)  External world (representational truth) o Ideal speech situation  No exclusion of relevant participants  All participants should have an equal voice; everyone should be heard and allowed to speak  Free speech without deception or self-deception; people should not lie or have false understandings about themselves or the world around them  No coercion: should not be forced to accept certain claims unreasonably; made to participate and internalise the truth that has been agreed  Pragmatic epistemological realism: truth is not an objective given by a all-knowing God, but is what we agree upon right now so that we can achieve goals that matter to us Deliberative democracy o Ideal practical discourse must follow the Discourse Principle: a rule of action or choice is justified, and thus valid, only if all those affected by the rule or choice could accept it in a reasonable discourse o Principle of universalisation: “A [moral norm] is valid just in case the foreseeable consequences and side-effects of its general observance for the interests and value orientations of each individual could be jointly accepted by all concerned without coercion.”  Transformation of discourse principle into moral field  Assumes that valid moral rules or norms allow for an egalitarian community of autonomous agents  A systematic union of different rational beings governed by common laws Law as a transmission belt o Habermas conceives of law as a medium of social integration o Law works like a “transmission belt” that picks up the political directions coming from society and, through the administrative system of the state, organises society according to these very directions o Anchoring the economic and political systems in law, Haberman argues that law bears the task of holding society together through communicative rationality

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Between facts and norms o Facility or validity? Facts are objective; norms are generally understood as being subjective (people have their own different sets of values and beliefs); if you try to impose your norms on others, it can be seen as illegitimate o Rejects natural law theory that legal validity can be acquired through a higher law; law cannot claim legitimacy through God, nor is there an absolute moral truth o Post-metaphysical world: where there are no moral truths, norms are beliefs o Seeks to provide account of modern societies through which the enforcement of positive law is intertwined with the laws claim to legitimacy o Modern law is therefore to be seen as a Janus-faced phenomenon, conjoining facticity or validity; should not choose between vision of positivists or natural law theorists, but theory that conjoins them o A discourse theory of law: legitimate law is that which satisfies the discourse principle which requires the assent of all participants in rational discourses that might be affected by the legal norm o Modern law is a functional solution to the conflict potentials inherent in modernisation. By reducing the burden of social questions law reconciles individual freedoms through political participation o “As legal subjects, they must anchor this practice of self-legislation in the medium of law itself; they must legally institutionalise those communicative presuppositions and procedures of a political opinion- and will-formation in which the discourse principle is applied. Thus, the establishment of the legal code, which is undertaken with the help of the universal right to equal individual liberties, must be completed through communicative and participatory rights that guarantee equal liberties for the public use of communicative liberties. In this way, the discourse principle acquires the legal shape of a democratic principle.” Proceduralist paradigm of law: law should be based on this so it can respond effectively to the problems of the post-metaphysical world o This is where there are few shared values, but we must deliberate about what we should do as a society o Law must articulate participation rights: the rights you need to contribute to public discourse, to have a say in how decisions are made o Provides the grounding by which people are able to exercise their capacity to communicate with others at a societal level o Says form law needs to take is a series of rights individuals must have which are the preconditions an individual must have to participate in public discourse o Basic negative liberties: eg. rights to citizenship o Rights to political participation: these allow citizens to participate in proceduralist paradigm- to have their say to ensure law and political processes are responsive to citizens’ concerns o Social and economic rights: unless people have degree of social stability (eg. access to healthcare and housing), they are not in a position to be able to deliberate about their concerns. This procedural paradigm of law embodies these sorts of rights, law then provides the conditions of which public discourse is possible o Law is not so much the product of debate, but the structure of debate, using a distinctive language (rights)

Why does Habermas think we live in a “post-metaphysical” age? How does this influence his main claims about the nature of law? What role does communication in the public sphere play in Habermas’ theory of law?...