See discussions, stats, and author profiles for this publication at: https://www.researchgate.

net/publication/331305859

The Legal Theory of Jürgen Habermas

Chapter · February 2013

CITATIONS READS
8 635

1 author:

Mathieu Deflem
University of South Carolina
194 PUBLICATIONS   1,284 CITATIONS   

SEE PROFILE

All content following this page was uploaded by Mathieu Deflem on 01 March 2019.

The user has requested enhancement of the downloaded file.

76 Mathieu Deflem

Habermas’s work has been greeted with numerous secondary analyses and commen-
taries, of varying degrees of usefulness, a literature that I will briefly discuss at the
end of this chapter. More importantly, this contribution will focus on explicating the
ideas Habermas has introduced with respect to the study of law. In keeping with the
objectives of this volume to provide an introduction into the role of social theory in
the study of law, a critique of Habermas’s ideas is beyond the scope of this chapter.
Adequately situating the legal theory of Habermas in the broader contest of his soci-
ology and philosophy is the central objective of this chapter.

1. CRITICAL THEORY

Jürgen Habermas was born in Düsseldorf, Germany, on 18 June 1922 and spent most
of his childhood in nearby Gummersbach.1 Upon his graduation from high school
(Gymnasium) after the end of World War II, he studied at universities in Göttingen,
Zürich and Bonn from 1949 until 1954 when he earned a doctorate in philosophy
on a dissertation about the German philosopher Friedrich Schelling. After a two-year
period of work as a freelance journalist, Habermas recommenced his academic career
by joining the Institute for Social Research (Institut für Sozialforschung) at the Johan
Wolfgang Goethe University in Frankfurt.
The Institute for Social Research had been privately founded by Felix Weil, the son
of a wealthy industrialist, in 1923, with the aim of providing an intellectual home to a
multidisciplinary group of social scientists and philosophers working in the tradition
of Karl Marx.2 Shortly after the Nazi seizure of power in 1933, the Institute was shut
down by the Gestapo. Several Institute members (some of whom were also Jewish)
moved abroad, especially to New York City, where they continued their activities.
After the war, the Institute was refounded in Frankfurt in 1951 and again became the
central home to the intellectual tradition now commonly known as critical theory. The
perspective is represented by Max Horkheimer, Theodor Adorno, Erich Fromm, Otto
Kirchheimer and Herbert Marcuse, amongst others, followed by a younger generation
of scholars, among whom Habermas became a key figure after he had initially taken
up an assistantship with Adorno.
The perspective of critical theory that was represented by the Frankfurt School, as
the Institute’s members came to be collectively known, was originally introduced by
Horkheimer in 1937 as a counterpart to so-called traditional theory.3 Striving towards
a reinterpretation of Marxian thought and the application of its central tenets to the
social-scientific analysis of modern society, Horkheimer defined critical theory as an
intellectual bridge between theory and praxis, between knowledge and action. The
perspective thus rejected a simple view of value-freedom in social science and instead
sought to endeavour intimate connections between knowledge and science, on the one
hand, and emancipation and democracy, on the other.
Habermas’s position in the tradition of critical theory is more than interesting to

1
On Habermas’s life and work, see MB Matuštík, Jürgen Habermas: A Philosophical-Political Profile
(Lanham, MD, Rowman & Littlefield, 2001).
2
M Jay, The Dialectical Imagination: A History of the Frankfurt School and the Institute of Social
Research, 1923–1950 (Berkeley, CA, University of California Press, 1996).
3
M Horkheimer, ‘Traditionelle und Kritische Theorie’ (1937) 6 Zeitschrift fur Sozialforschung 245.
 The Legal Theory of Jürgen Habermas 77

note because it betrays some of the enduring aspirations and tensions in his work.
When Habermas was developing the ideas for his Habilitationsschrift (the post-doctoral
dissertation required of academics in Germany), he met with resistance from his super-
visors at Frankfurt, especially Horkheimer. Rather than revise his work, Habermas
decided to take it elsewhere and defended the dissertation successfully at the University
of Marburg under the direction of the political scientist Wolfgang Abendroth. In this
study, which remains to date one of Habermas’s most distinctly sociologically oriented
empirical works, Habermas argues for the role of democracy in the development of
modern Western societies.4 Specifically, he traces the eighteenth-century development
of a bourgeois public sphere in which debates were held concerning important matters
of politics and culture, both in face-to-face meetings in cafés and coffee houses as well
as through the medium of print. Towards the twentieth century, Habermas argues, the
critical potentials of the public sphere were gradually eroded by its commercialisation
into a mass society of public opinion.
The theme of democracy that is central to the transformation of the public sphere is
one that has stayed with Habermas throughout his career. After two years of teaching
at Marburg and Heidelberg, he returned to the Goethe University at Frankfurt in 1964
as professor of philosophy and sociology. Between 1971 and 1983, he was co-director
of one of Germany’s Max Planck Institutes, a series of government-funded but other-
wise independent research institutes, in Starnberg. Thereupon he returned to Frankfurt
as a philosophy professor until his retirement in 1994, since when he has continued to
be a prolific writer and participant in various public and academic debates.
Although distinctly placed in the tradition of critical theory and Marxism, Haber-
mas’s work has come to enjoy a reputation that also stands by itself.5 Aside from his
work on the public sphere, Habermas made an impact early on in his career through his
epistemological writings on the relationship between theory and praxis.6 Most famous
in this respect is his conceptualisation of various scientific traditions on the basis of
three knowledge-interests: (i) the technical interest of the empirical sciences oriented
at an effective manipulation of the natural environment; (ii) the practical interest of
the hermeneutical tradition oriented at the proper interpretation of meaning; and (iii)
the emancipatory interest of the critical social and human sciences oriented at analysis
as well as critique and social change. Habermas situates his work within the latter
tradition, as can be expected from a neo-Marxist scholar. Equally significant is that
his work immediately took on, besides a deeply embedded philosophical component,
also a distinctly sociological interest in the analysis of society.
Focusing attention towards Habermas’s construction of a systematic theory of
society from the late 1960s onwards and especially during the 1970s, what is most
striking is that Habermas gradually begins to diverge from the Marxian preoccupa-

4
The study was originally published in 1962 and translated into English in 1989. See J Habermas, Struk-
turwandel der Öffentlichkeit. Untersuchungen zu einer Kategorie der bürgerlichen Gesellschaft (Neuwied/
Berlin, Luchterhand, 1962); J Habermas, The Structural Transformation of the Public Sphere: An Inquiry
into a Category of Bourgeois Society (Cambridge, MA, MIT Press, 1989).
5
There are many overviews of the work of Habermas available that can be helpful to introduce his own
writings. See eg D Ingram, Habermas: Introduction and Analysis (Ithaca, NY, Cornell University Press,
2010); T McCarthy, The Critical Theory of Jürgen Habermas (Cambridge, MA, MIT Press, 1978).
6
J Habermas, Technik und Wissenschaft als ‘Ideologie’ (Frankfurt, Suhrkamp, 1968); English translation:
J Habermas, Theory and Practice (Boston, Beacon Press, 1973). See also J Habermas, Knowledge and
Human Interests (Cambridge, Polity Press, 1987).
78 Mathieu Deflem

tion with labour and economy towards the inclusion of the categories of interaction,
language and democracy.7 In other words, what Habermas complements to an orthodox
Marxism focused on the control over nature (as a subject–object relationship) to an
expanded view that also considers social interactions (among subjects). This interest
towards the interactional dimension of social life was already present, in embryonic
form, in Habermas’s work on the public sphere, but it would now be gradually yet
resolutely pursued in a direction that took Habermas not only away from a more
narrowly conceived neo-Marxism but also from an epistemologically preoccupied phi-
losophy towards linguistic theories of communication. Even more interesting in the
present context is that Habermas moved from philosophy to the very centre of debates
in sociological theory, specifically by relying on the dichotomies between, on the one
hand, action-theory, communicative action and lifeworld, and, on the other hand,
systems theory, strategic action and system.8
Before explaining the systematics of where this intellectual development would
ultimately take Habermas, it can be recognised from the outset that Habermas’s rela-
tionship to Marx and the Marxists has remained a matter of continued contention
just as much as has been his relative distance and closeness vis-à-vis the traditions
of (continental) philosophy and (theoretical) sociology. What is important for the
purposes of this chapter is that Habermas not only moves from a theory of science
via an inquiry on the logic of the social sciences to a theory of society, but also from
an initial and somewhat uncertain and unsystematically developed interest in interac-
tion and language to a comprehensive theory of society that is partially grounded in
a theory of speech. Having clarified the epistemology of critical theory in connec-
tion with an emancipatory interest and subsequently a methodological interest in the
language-theoretical foundation of the social sciences, Habermas thus accomplished a
move towards the development of a sociological and philosophical perspective that he
judged useful for both the study and critique of society.

2. THE THEORY OF COMMUNICATIVE ACTION

Habermas’s work towards a new social theory culminated in his impressive magnum
opus, The Theory of Communicative Action, which was originally published in
German in 1981 as a two-volume work.9 In the formal construction of this work,
Habermas relies on the model presented by Talcott Parsons in his 1937 The Structure
of Social Action10 to systematically develop a theory of society with reference to a

7
Habermas, above n 6 (1973) 142.
8
J Habermas, Zur Rekonstruktion des historischen Materialismus (Frankfurt, Suhrkamp, 1976); English
translation: J Habermas, Communication and the Evolution of Society (London, Heinemann, 1979);
J  Habermas, Legitimationsprobleme im Spätkapitalismus (Frankfurt, Suhrkamp, 1973); English translation:
J Habermas, Legitimation Crisis (Cambridge, Polity Press, 1988). The methodological implications of the
turn towards social theory are addressed in J Habermas, Zur Logik der Sozialwissenschaften (Frankfurt,
Suhrkamp, 1970); English translation: J Habermas, On the Logic of the Social Sciences (Cambridge, Polity
Press, 1988).
9
J Habermas, Theorie des kommunikativen Handelns, 2 vols (Frankfurt, Suhrkamp, 1981); English trans-
lations: J Habermas, The Theory of Communicative Action, vol 1: Reason and the Rationalization of
Society (Boston, Beacon Press, 1984); J Habermas, The Theory of Communicative Action, vol. 2: System
and Lifeworld: A Critique of Functionalist Reason (Boston, Beacon Press, 1987).
10
T Parsons, The Structure of Social Action (New York, McGraw-Hill, 1937).
 The Legal Theory of Jürgen Habermas 79

group of more and less recent writers in social theory. Since the resulting theory of
communicative action has remained central to Habermas’s writings until this day and
also contains an important contribution to the study of law in modern society, it is
worthwhile to devote some time to explaining the basic contours of this aspect of
Habermas’s sociological theory on the basis of a brief summary of The Theory of
Communicative Action.
Habermas begins the exposition of his theory by postulating the problem of the
rationality of action or the rationalisation of society as the central subject matter in
sociological theory, going back to the great works of the sociological classics. Sociol-
ogy’s special place is in this respect secured because the discipline has retained an
interest in society as a whole, even when the differentiation of society is a central
aspect of the development to modernity, bringing about a specialization within soci-
ology to focus on the various institutional components of differentiation (economy,
polity, law, culture). This comprehensive perspective is informative, of course, of a
proper understanding of the very foundation of the sociology of law, approached from
whichever theoretical tradition, as the scientific study of law in society, rather than a
jurisprudential misreading of law and society.11
Habermas differentiates between two concepts of rationality: (i) cognitive-instru-
mental rationality pertains to conduct that is oriented at the successful realization of
certain goals; and (ii) communicative rationality is applicable to interactions whereby
the actors are oriented towards mutual understanding. Importantly, Habermas argues
that social action cannot be curtailed towards either conceptualisation of rationality,
but that the two forms of rationality must be ideal-typically understood and can thus
be variably applicable to various social formations at different stages of development.
Habermas considers it an exclusive characteristic of human interactions that
they are symbolically mediated on the basis of the use of language through speech.
Forgoing a more detailed presentation of some of the involved issues of linguistic
theory, Habermas focuses on the claims that are implied in the actual use of language
or speech-acts among actors as they are oriented towards reaching understanding. Even
though consensus is not a necessary outcome of communicative action, Habermas
suggests that speech-acts, which are sufficiently well-formed so that they are compre-
hensible, inevitably imply claims on three levels: (i) a claim that the speech-act is true
as corresponding to or otherwise harmonising with a state of affairs; (ii) that the
speech-act is right with respect to a specified or implied normative context; and (iii)
that the speech-act is expressed truthfully by the speaker. Habermas argues that com-
municative actions—which are expressed either verbally or by means of an equivalent
such as by means of gestures or in writing—imply that all the claims are accepted
or, conversely, that any one or more of the claims will be brought into question and
thus become the subject matter of additional communications concerning the validity
of implied claims. Habermas refers to this order of communication as discourse and
thereby differentiates: (i) the theoretical discourse concerning truth; (ii) the practical
discourse on rightness; and (iii) the expressive and evaluative discourse concerning
authenticity and sincerity.
Habermas notes that the validity of speech-acts is not routinely questioned because

11
M Deflem, Sociology of Law: Visions of a Scholarly Tradition (Cambridge, Cambridge University
Press, 2008).
80 Mathieu Deflem

they take place within the given context of what he calls the lifeworld (Lebenswelt).
Extending from established phenomenological traditions of German philosophy, the
concept of lifeworld is defined by Habermas as referring to the whole of cultural values,
social norms and socialisation patterns that often remain unquestioned among actors
and that, in fact, enable interactions to take place. To explain the specific development
or rationalisation of modern societies, Habermas makes two important observations.
First, the rationalisation of the lifeworld has brought about an internal differentia-
tion around three central functions: (i) cultural reproduction for the transmission of
values; (ii) social integration for the co-ordination of interactions through norms; and
(iii) socialisation for the formation of personal identity. Second, an additional level of
societal differentiation has to be introduced because certain domains of social life have
‘uncoupled’ from the lifeworld on the basis of non-communicative or ‘delinguistified’
media of interaction. To conceptualise these relations, the interactionist perspective
of the lifeworld needs to be complemented with a systems-perspective that focuses on
the cognitive-instrumental rationality orientation at a successful realisation of speci-
fied objectives. Specifically, Habermas argues, in the context of Western societies an
economic system of capitalism and a political system of a bureaucratic state have
developed which function, respectively, on the basis of money and power. The ration-
ality of monetary transactions in the capitalist economy is such that only productivity
criteria are considered, whereas power in the bureaucratic state is oriented at effective-
ness in political processes of decision-making.
Similar to the role of communicative action in the lifeworld, Habermas argues that
cognitive-instrumental action in the economic and political system need not neces-
sarily bring about problematic consequences. However, social problems do ensue when
the lifeworld is intruded upon by society’s systems resulting in communicative actions
being redefined in instrumental terms. Actions oriented at mutual understanding are
then perverted into conduct instrumentally aimed at success. Habermas argues that
the central problems of late-modern societies are precisely of this kind. Modern-day
social ills, such as a loss of meaning, anomie and alienation, exist as a result of a
colonisation of the lifeworld by economic and political systems.
Understood from the viewpoint of sociological theory, Habermas’s perspective of
communicative action and the dual nature of modern society in terms of lifeworld
and system merges insights from interactionist perspectives, on the one hand, with
systems-theoretical theories, on the other. As such, Habermas can rely on the great
works of otherwise seemingly very diverging authors, such as Max Weber and Emile
Durkheim as well as Talcott Parsons and Karl Marx. Especially from the viewpoint of
a critical theory, Habermas’s two-level perspective of society should be able to dem-
onstrate its value, beyond its theoretical consistency, as a theory of modernity that
can be fruitfully applied in the analysis of concrete social formations. In The Theory
of Communicative Action, Habermas indeed undertakes such an analysis and thereby
also specifies a sociological theory of law.

3 . L AW A S A N I N S T I T U T I O N A N D L A W A S A M E D I U M

The theory of communicative action is by any standard complex as well as compli-

cated, especially so in view of its abstract orientation and reliance on multiple tradi-
 The Legal Theory of Jürgen Habermas 81

tions of social theory. It is interesting to note in this respect that Habermas suggests
in his preface to The Theory of Communicative Action that the reader who wonders
about the empirical relevance of his work could first read the concluding chapter of
the book, the chapter in which Habermas applies his theory to a concrete analysis
and introduces a sociological perspective of law.12 Interestingly, Habermas prefaces this
discussion by stating that the area of law presents no special methodological problems
because, he writes, ‘The development of law belongs to the undisputed and, since
Durkheim and Weber, classical research areas of sociology.’13
Habermas’s concept of law refers at the most general level to an institutionalisation
of norms.14 Thus, on a philosophical level, Habermas posits an intimate connection
between law and morality, whereby he maintains that law, even in highly rationalised
societies, retains a critical normative dimension. Despite a trend towards technocra-
tisation on the basis of instrumental criteria of efficiency, modern law retains a need
for moral justification, more specifically on the basis of procedural criteria that allow
only for the force of the better argument through communication and debate. In other
words, Habermas argues that the modern rationalisation of law in purposive-rational
terms, such as Max Weber already formulated it, implies only a displacement, but not
an elimination, of moral questions. Modern law is characterised by conditions of both
legality and legitimacy and the latter is not exhausted by the former. In simple terms,
it is not because something is legal that it is accepted as just. As such, Habermas’s
work on law opens the way for an important philosophical component to determine
the rational foundation of just law or the connection between law and rights.
Additionally, Habermas argues that law in modern societies functions and develops
in ways that need to be sociologically uncovered. In the differentiation of system and
lifeworld, law fulfils a central function by legally institutionalising the independent
functioning of money and power in, respectively, the economic and administrative
systems. This function is fulfilled, more specifically, in private and public law. The sig-
nificance of the role of law is additionally shown from the fact that political authority
has historically evolved from judicial offices. In a lasting sense relevant to contempo-
rary societies, the special connection between law and politics is confirmed by the fact
that legislation is a political function and that political authority, as Weber already
argued, is legal-rational.
In the concluding chapter of The Theory of Communicative Action, Habermas
conducts a rather detailed historical investigation of the development of law, which
enables him to show the empirical value of his theory and in the course of which he
develops a more comprehensive sociology of law.15 Specifically, Habermas relies on the
concept of juridification (Verrechtligung) to suggest the development of the welfare
state. In general terms, juridification refers to an increase in formal or written law,
either in the form of an expansion of law of hitherto unregulated conduct or in the

12
Habermas, above n 9 (1984) xli.
13
Habermas, above n 9 (1987) 356.
14
Habermas, above n 9 (1984) 243–71; above n 9 (1987) 172–79. For overviews, see A Brand, ‘Ethical
Rationalization and “Juridification”: Habermas’ Critical Legal Theory’ (1987) 4 Australian Journal of Law
and Society 103; M Deflem, ‘La Notion de Droit dans la Théorie de l’Agir Communicationnel de Jürgen
Habermas’ (1994) 18 Déviance et Société 95.
15
Habermas, above n 9 (1987) 356–73.
82 Mathieu Deflem

form of a densification of law in the form of a more detailed regulation of conduct

that was already legally regulated.
Habermas analyses juridification processes in the development towards the welfare
state in the history of the European state system and suggests four waves of juridifica-
tion.16 First, in the period of the bourgeois state that developed in pre-nineteenth-century
Europe, a capitalist economy begins to evolve whereby a new class of industrialists
can gradually secure legal rights to conduct business in the market, while leaving the
absolute powers of the sovereign ruler in the political sphere untouched. Civil law in
this period thus guarantees freedom rights and obligations in the economic market to
regulate contractual relations. Second, during the nineteenth-century development of
the constitutional state, the private rights of citizens to life, liberty and property are
secured over and against the rights of the political sovereign. In other words, freedom
rights are now legally guaranteed against the intrusion of political rulers, who are held
to economic laissez-faire policies. Third, as the democratic-constitutional state system
develops under influence of the ideas of the French Revolution, citizens can legally
ascertain rights also to participate in the shaping of their government by means of
the institutionalisation of a democratic election process. Thus, juridification entails
a legal institutionalisation of social rights in the political system. Fourth, with the
development of the democratic welfare state during the twentieth century, welfare
laws are passed to secure that certain problems brought about in capitalist society are
responded to on the basis of principles of fairness and equity to guarantee that certain
basic needs are met. In this final stage, in other words, legally guaranteed social rights
react against an unrestrained functioning of the market.
Habermas outlines this history of juridification to show how welfare laws can be
interpreted in terms of the institutionalisation of rights of the lifeworld vis-à-vis the
economic and political systems. Welfare laws originate from increasing demands of
the lifeworld to act within and react to the independent workings of media-controlled
systems. Both individual as well as social rights are thereby to be guaranteed on the
basis of a balance of the principles of freedom and equality. The development of
welfare law, however, Habermas notes, brings about certain unintended effects.17 While
welfare law is aimed at alleviating social ills created by the functioning of the capitalist
economy, the manner in which these problems are legally responded to are framed in
terms that accommodate the economic and administrative systems. The legal form
in which rights are secured in itself thus endangers some of those rights. Habermas
specifies four problems in particular: (i) welfare laws guarantee entitlements that are
understood as individualised claims even when the problems addressed are of a col-
lective nature; (ii) claims need to be successfully petitioned under formally specified
conditions; (iii) claims are implemented in ways that suit the needs of large bureau-
cratic organisations rather than the people involved; and (iv) entitlements often take
on the form of monetary compensation. In other words, the rights that welfare laws
guarantee are defined and implemented in terms of the media of money and power.
In the original formulation of his sociology of law in The Theory of Communi-
cative Action, Habermas interprets the ambivalent implications of the development

16
Ibid, 358–61.
17
Ibid, 361–64.
 The Legal Theory of Jürgen Habermas 83

of welfare law on the basis of a dual concept of law.18 On the one hand, law as an
institution refers to legal norms that remain in need of justification on the basis of
the intimate connection of law to morality. Habermas in this case mentions certain
areas of law that are closely related to deeply held belief systems, such as criminal
law. On the other hand, Habermas argues that law can also function as a medium, in
which case it suffices that legal regulations operate effectively by means of a specified
procedure, such as in the case of business and administrative law. Whereas law as an
institution belongs to the lifeworld, law as a steering medium is relieved of substantive
justification because it operates in the political and economic systems on the basis of
functional needs.
As the case of welfare law shows, law as a medium can also concern areas of
society that properly belong to the lifeworld. For example, the collective problems of
structural unemployment and of old age are in welfare laws redefined as individualised
claims to be met by monetary settlements. Habermas discusses similar problems in
(German) family and school law.19 In these areas, basic rights are guaranteed on the
basis of principles of the welfare of the child and the equal opportunity for all con-
cerned (student, parent, husband, wife, parent, child). However, to secure these rights
legally, family and school have to be redefined and formalised in terms that allow for
bureaucratic intervention and judicial control. Family and school law can supplement
the informal relations that exist in these lifeworld areas of social life, but they can
at times also go further and intrude upon family and schools by means of law as a
medium. A child, for instance, can legally be subjected removal from the home on the
basis of a judge’s decision to protect the physical well-being of the child, while not
considering that a different approach may be in order on the basis of a more holistic
viewpoint that also considers other important dimensions of the child–parent relation-
ship. In such cases, there is an internal colonisation of the lifeworld by means of law
as a medium.

4. LAW BETWEEN FACTS AND NORMS

Habermas’s perspective of law and morality opens the way for an important philosoph-
ical component in his work to specify how modern societies can secure the legitimacy
of legality. At the same time, however, Habermas also introduces a concept of law as
a medium that would be relieved from normative discussions. Within the contours of
Habermas’s own theoretical ambitions, this dual conceptualisation in his legal theory
reveals an insurmountable problem for it could only be sustained if various areas of
law can be categorised either as law as an institution or as law as a medium. Yet,
as Habermas himself introduced the terminology in The Theory of Communicative
Action, this is not the case in the areas of welfare policy and school and family law.
In these instances, legal regulations intrude into lifeworld dimensions on the basis of
systems needs and thereby produce certain problems, which are addressed in discus-
sions on deregulation, debureaucratisation, and other morally justified terms. The

18
Ibid, 366–68.
19
Ibid, 368–73.
84 Mathieu Deflem

concept of law as a medium and the related notion of an internal colonisation of the
lifeworld are not conceptually meaningful in the context of Habermas’s own theory.
Habermas soon realised the rather straightforward mistake he had made in his
original formulation. In response to critics of his work,20 he wrote that his theses on
juridification were ‘perhaps over-presumptuous’21 and that he could not maintain the
distinction between law as an institution and law as a medium.22 The error may have
resulted from the fact that Habermas in his original 1981 book treated the lifeworld
somewhat one-sidedly from the perspective of the potentially damaging effects of
systems and the colonisation of the lifeworld. Possibly in a rush to show the critical
potential of his theory, Habermas’s book is in fact as much a theory and study of
strategic action and system as it is of communicative action and lifeworld.
The intellectually consistent consequence is that Habermas has in the meantime
reformulated his legal theory to conceptualise law entirely as an institution of the
lifeworld. In 1992, Habermas systematically addressed his rethinking on law in his
book Faktizität und Geltung, translated in 1996 as Between Facts and Norms.23 The
study was the result of a five-year grant project that was awarded to Habermas in the
mid-1980s on a subject matter of his own choosing. Habermas then formed a research
group on legal theory in which several legal philosophers, sociologists of law, and
jurists participated, resulting in multiple publications on the role of law in modern
society.
Habermas’s work addresses most extensively the way in which modern law can be
justified rationally on the basis of a system of rights. This conceptualisation implies
that law is intimately related to morality and, more specifically, that both moral and
legal norms are oriented at resolving social integration problems in the lifeworld.
Moral and legal norms are differentiated by their different levels of institutionalisa-
tion and formalisation. Moral norms have the advantage of being deeply embedded in
the lifeworlds of different communities, but they miss the coercive power and enforce-
ability of law. To ensure the authority of legal norms, law also remains connected to
the political system, which oversees a proper and ideally effective administration and
enforcement of law. The characteristic of modern law to combine a claim to legiti-

20
See eg K Eder, ‘Critique of Habermas’ Contribution to the Sociology of Law’ (1988) 22 Law and
Society 931; K Raes, ‘Legalisation, Communication and Strategy: A Critique of Habermas’ Approach to
Law’ (1986) 13 Journal of Law and Society 183; W van der Burg, ‘Jurgen Habermas on Law and Morality:
Some Critical Comments’ (1990) 7 Theory, Culture and Society 105.
21
J Habermas, ‘A Reply’ in A Honneth and H Joas (eds), Communicative Action (Cambridge, MA:
MIT Press, 1990). See also J Habermas, ‘Law and Morality’ in SM McMurrin (ed), The Tanner Lectures on
Human Values (Salt Lake City, University of Utah Press, 1988).
22
J Habermas, ‘Remarks on the Discussion’ (1990) 7 Theory, Culture and Society 127.
23
J Habermas, Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des demokratischen
Rechtsstaats (Frankfurt, Suhrkamp, 1992); English translation: J Habermas, Between Facts and Norms:
Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA, MIT Press, 1996). For over-
views and discussions, see H Baxter, Habermas: The Discourse Theory of Law and Democracy (Stanford,
CA, Stanford Law Books, 2011); M Deflem (ed), Habermas, Modernity and Law (London, Sage, 1996);
M Deflem, ‘Théorie du Discours, Droit Pénal, et Criminologie’ (1995) 19 Déviance et Société 325; M Rosen-
feld and A Arato (eds), Habermas on Law and Democracy: Critical Exchanges (Berkeley, University of
California Press, 1998); CL Orjiako, Jurisprudence of Jürgen Habermas: In Defence of Human Rights and
a Search for Legitimacy, Truth and Validity (Milton Keynes, Authorhouse, 2009); C  Ungureanu, K Günther
and C Joerges (eds), Jürgen Habermas, vol 1: The Discourse Theory of Law and Democracy (Aldershot,
Ashgate, 2011).
 The Legal Theory of Jürgen Habermas 85

macy and a guarantee of legality accords law its societal relevance and sociotheoretical
centrality.
On the basis of Habermas’s new perspective of law, his legal theory in The Theory
of Communicative Action can briefly be reformulated. The regulation of money
and power can then indeed be conceived as a normative anchoring in the lifeworld.
Business and administrative law do not only regulate the workings of the economic
and administrative systems efficiently or functionally but they do so authoritatively as
well with reference to norms of justification. Additionally, and even more importantly,
the earlier specified thesis on the internal colonisation of the lifeworld can now be
reconceptualised as a colonisation of law itself. In other words, modern law can be
colonised by the systems of economy and politics in such a way that legal norms and
practices are redefined and implemented on the basis of standards of instrumental
efficiency.
In view of law’s dual characteristics of legitimacy and legality, Habermas’s central
objective in Between Facts and Norms is to elaborate a legal theory that bridges a
(normative) philosophy of law with an (empirical) sociology of law, combining insights
derived from both traditions. Specifically, Habermas posits that law, on the one hand,
must rely on the coercive force of the state to be properly administered but must, on
the other hand, also be grounded in intersubjectively recognised claims of rights. At
the level of adjudication where legal statutes are applied and interpreted, legal norms
are appropriately measured in terms of their suitability to specific cases or to consti-
tutional principles without the legitimacy of legal norms themselves being at issue.
Besides seeking to reconstruct modern law in terms of its relationship to morality
and rights, Habermas spends much time contemplating the connection between law
and politics under conditions of democratic regimes. Habermas’s work thus becomes
not only a philosophy of law in addition to a sociology of law, but also a political
theory, albeit with important implications for law. Specifically, Habermas defends a
deliberative concept of democracy that focuses on the procedures that exist, or should
exist, whereby the ideas and ideals that inform democratic debate as well as the
decisions that are brought about in democratic regimes remain open to debate. An
important function for law thereby is to establish procedures that ensure that legal
norms enable a peaceful coexistence of a plurality of ethical traditions. In other words,
democratic law is needed to guarantee that norms can co-ordinate social action and
secure integration in view of the preservation of a diversity of values in a plurality of
lifeworlds. A central problem in Habermas’s work is thus the relationship between law
(norms) and culture (values), an especially poignant problem in view of an increasing
drift towards multiculturalism.

5. RECEPTION AND CRITIQUE

This chapter is primarily oriented at providing a helpful exposition of the ideas of

Habermas on law in the context of his broader theoretical project, but it will also
be useful to have a brief look at the influence his work has enjoyed in the realm of
legal and sociolegal studies. As noted, Habermas’s legal theory involves both distinctly
philosophical and sociological components. His work has consequently also been dis-
cussed across disciplinary fields, although in a less integrated manner than Habermas
86 Mathieu Deflem

achieved in his own work. It must also be observed that Habermas’s writings on law
have involved a shift from the sociology of law, which is most comprehensively articu-
lated in The Theory of Communicative Action, to questions of legal (and political)
philosophy, which he especially addressed in Between Facts and Norms.
As a result of the shift in Habermas’s legal theory, certain distinct and sometimes
problematic consequences can be noted in the reception of his work in the academic
fields interested in the study of law. In the secondary literature, philosophical debates
far outweigh sociological writings, and theoretical discussions are much more prevalent
than empirical investigations. Also, the majority of secondary sources on Habermas’s
legal theory were published in the 1980s and 1990s, and his work has attracted less
explicit attention since. A contributing factor to this relative decline is that Habermas
has in more recent years written about topics that have no direct relationship to law,
with most of his efforts being devoted the integration of the European Union, inter-
national politics (especially since the events of 9/11) and the changing role of religion
in the world.24
Reviewing the debate and criticisms that have been published on Habermas’s legal
theory, several currents can be detected of variable degrees of theoretical sophistica-
tion and empirical usefulness. Following the original publication of The Theory of
Communicative Action, several papers were devoted from within jurisprudence and
sociolegal studies to an exposition and internal critique of Habermas’s formulation of
law as an institution and law as a medium. Theoretically, it is thereby interesting to
observe that some sociolegal scholars readily observed the internal contradiction in the
theory, which Habermas was also quick to acknowledge and which he would gradually,
during the 1980s, explore in more detailed by developing a systematic philosophy of
rights, law and morality under the heading of ‘discourse ethics’ (Diskursethik).25
As a specification of the procedural conditions under which legal question and other
lifeworld debates can be legitimately conducted, the perspective of discourse ethics
suggests that norms can only be legitimate when they meet or could meet with the
approval of all those who are affected. Such a determination presupposes the condi-
tions of a so-called ideal-speech situation, whereby nobody who is competent to speak
would be denied from bringing up any argument or question deemed relevant and
would not be excluded from debate. These conditions are, according to Habermas, not
utopian because they are presupposed in communicative action, as is revealed, most
sharply, when they turn out to have been violated. The key implication of discourse
ethics for Habermas’s legal philosophy, as he explained in Between Facts and Norms,

24
See eg J Habermas, Der Gespaltene Westen (Frankfurt, Suhrkamp, 2004), English translation:
J  Habermas, The Divided West (Cambridge, Polity Press, 2006); J Habermas, Zwischen Naturalismus und
Religion (Frankfurt, Suhrkamp, 2005); English translation: J Habermas, Between Naturalism and Religion
(Cambridge, Polity Press, 2008); J Habermas, Ach, Europa (Frankfurt, Suhrkamp, 2008): English translation:
J Habermas, Europe: The Faltering Project (Cambridge, Polity Press, 2009); J Habermas, Zur Verfassung
Europas (Frankfurt, Suhrkamp, 2011); English translation: J Habermas, The Crisis of the European Union:
A Response (Cambridge, Polity Press, 2012).
25
J Habermas, Moralbewußtsein und kommunikatives Handeln (Frankfurt, Suhrkamp, 1983); English
translation: J Habermas, Moral Consciousness and Communicative Action (Cambridge, MA, MIT Press,
1990); J Habermas, Erläuterungen zur Diskursethik (Frankfurt, Suhrkamp, 1991); English translation:
J  Habermas, Justification and Application: Remarks on Discourse Ethics (Cambridge, MA, MIT Press,
1993).
 The Legal Theory of Jürgen Habermas 87

is an emphasis on the procedural conditions of argumentation at various levels of law,

ranging from legislation over adjudication to law enforcement.
Tailored towards the needs of empirically oriented legal and social science, some
scholars have applied insights from Habermas’s theory to their investigations. Given
the ambivalence of Habermas’s original perspective of law, the results present a mixed
bag. Some scholars working in a critical tradition of social science, especially in the
areas of criminal justice and criminology, relied on Habermas’s social theory to con-
template the systemic qualities of law, especially in the area of criminal law. Specifically,
the so-called abolitionist perspective that has been developed in the European tradition
of critical criminology undertook this effort to argue that the modern criminal justice
system deals with issues of deviance and crime in such a way that the manner in which
these problems are experienced by the participants themselves are done no justice, but
instead are treated on the basis of the requirements of legal and political administra-
tors and other professional expert cultures.26 Some abolitionist scholars reformulated
this theoretical orientation in conceptual terms derived from the theory of communi-
cative action to argue that the criminal justice system is indeed to be conceived as a
system in the sense in which Habermas uses the term. Needless to say, this unsystem-
atic appropriation of Habermas’s ideas involves a serious misreading of his work.27
Relying on a conception of the administration of criminal law as a system in the
Habermasian sense, the abolitionist perspective completely overlooks the possibility of
procedurally legitimated law and the place of law in the lifeworld. Habermas’s social
and legal theory simply does not lend itself to support the abolitionist quest to abolish
the criminal justice system, but would instead be useful to work towards a procedur-
ally guaranteed democratisation of criminal law.
The charge of a conceptually unjustified reliance on Habermas’s work in abolitionist
perspectives of criminal law, which is largely a European-continental tradition, is also
applicable to currents in the so-called critical legal studies movement. 28 Especially as
it has been developed and practised in the United States and the United Kingdom,
critical legal studies represents a diverse group of legal scholars who basically argue
that law is essentially characterised by an indeterminacy that is rooted in arbitrary
decision-making on the basis of contradictory legal principles. Developed within the
professional boundaries of jurisprudence, scholars working in the critical legal studies
tradition have relied upon a variety of thinkers in philosophy and social theory to
justify their programmes. At times, the name of Habermas and selected aspects of
his thought have thereby also popped up.29 Yet, in the wide and diverse literature of
critical legal studies, the work of Habermas has been mostly appropriated in a form
that mixes it, ostensibly without realising the theoretical and philosophical inconsisten-
cies involved, with many other scholars and traditions as varied as Marxism, feminism
and, most troublesome from the Habermasian viewpoint, poststructuralism and post-

26
JR Blad, H Van Mastrigt and NA Uildriks (eds), The Criminal Justice System as a Social Problem: An
Abolitionist Perspective (Rotterdam, Erasmus Universiteit, 1987); H Bianchi and R Van Swaaningen (eds),
Abolitionism: Towards a Non-repressive Approach to Crime (Amsterdam, Free University Press, 1986).
27
M Deflem, ‘Jürgen Habermas: Pflegevater oder Sorgenkind der abolitionistischen Perspektive?’ (1992)
24 Kriminologisches Journal 82.
28
See P Fitzpatrick and A Hunt, Critical Legal Studies (Oxford, Basil Blackwell, 1987); RM Unger, The
Critical Legal Studies Movement (Cambridge, MA, Harvard University Press, 1986).
29
See eg F Munger and C Seron, ‘Critical Legal Studies versus Critical Legal Theory: A Comment on
Method’ (1984) 6 Law & Policy 257.
88 Mathieu Deflem

modernism.30 Perhaps this assemblage can itself be assumed to be a postmodern pose,

but it is of course entirely contrary to the thought of Habermas, one of the staunchest
proponents of the modernist tradition originating from the Enlightenment.31
The comparison of the legal theory of Habermas with the theories of law of other
sociolegal scientists has formed another area of debate in the secondary literature. To
some extent, these writings involve actual discussions between Habermas and other
scholars. In the national tradition in which Habermas is situated, the debate with the
German sociologist Niklas Luhmann stands out.32 As explained more elaborated by
Michael King elsewhere in this volume, Luhmann develops an autopoietic theory of
law that conceives of all of society and its constituent parts in systemic terms as being
operationally closed. In response, it will cause no surprise, Habermas fundamentally
argues against Luhmann’s theory because it does not acknowledge the specificity of
the lifeworld in action-theoretical terms. With respect to the study of law, Habermas
consequently rejects the notion of operational closure to suggest that law fulfils an
important mediating function between lifeworld and system by negotiating between
the demands of everyday communicative actions, on the one hand, and the functional
needs of the economic and administrative systems, on the other.33 These capacities
of modern law, under conditions of democratic politics and procedurally justified
legitimacy, precisely account for its centrality in contemporary society. The connection
between law and morality, which Luhmann conceives as two separate closed systems,
remains central to Habermas.
Additional comparisons of Habermas with other sociolegal scholars or social theo-
rists with implied or explicit relevance to the study of law have been conducted by
commentators independently of any actual debates Habermas has engaged in.34 In this
respect, the so-called debate between Habermas and Michel Foucault is of special sig-
nificance because both intellectuals have greatly inspired legal and sociolegal work.35
Yet, such comparisons are at best modestly supported by writings in which the two
authors have explicitly discussed the value of each others’ contributions.36 The results
of these and other such interpretive exercises remain tenuous at best to the extent that
the theoretical comparisons could be judged unwarranted as the original scholars were
not exposed to their respective ideas or, at the very least, did not judge them useful to
be entertained.
The apparent scholarly obsession to attempt to think about, for or against,

30
D Ingram, ‘Dworkin, Habermas, and the CLS Movement on Moral Criticism in Law’ (1990) 16 Phi-
losophy and Social Criticism 237.
31
J Habermas, Der philosophische Diskurs der Moderne: Zwölf Vorlesungen (Frankfurt, Suhrkamp,
1985); English translation: J Habermas, The Philosophical Discourse of Modernity: Twelve Lectures (Cam-
bridge, Polity Press, 1987).
32
N Luhmann, A Sociological Theory of Law (London, Routledge & Kegan Paul, 1985); N Luhmann,
‘Operational Closure and Structural Coupling: The Differentiation of the Legal System’ (1992) 13 Cardozo
Law Review 1419.
33
Habermas, above n 23 (1996), 47–54. In response, see N Luhmann, ‘Quod Omnes Tangit  …:
Anmerkungen zur Rechtstheorie von Jürgen Habermas’ (1993) 12 Rechtshistorisches Journal 36.
34
Eg JP McCormick, ‘Three Ways of Thinking “Critically” about the Law’ (1999) 93 American Political
Science Review 413; A Lefebvre, ‘Habermas and Deleuze on Law and Adjudication’ (2006) 17 Law and
Critique 389; DM Rasmussen, ‘Communication Theory and the Critique of the Law: Habermas and Unger
on the Law’ (1988) 8 Praxis International 155.
35
See Gary Wickham’s chapter on Foucault in this volume (Chap 12).
36
Habermas devoted two chapters to the work of Foucault, but the French philosopher died before a true
debate could begin; see J Habermas, above n 31 (1987) 238–93.
 The Legal Theory of Jürgen Habermas 89

Habermas has not been complemented by an equally enthusiastic curiosity to conduct

empirical investigations on the basis of his theories. This unfortunate limitation in
the secondary literature applies to the entire reception of the oeuvre of Habermas
and its many substantive themes, but it has been especially pronounced in the areas
of political and legal theory. The development in Habermas’s legal theory towards a
philosophy of law, rights and deliberative politics with the publication of Between
Facts and Norms, at the expense of a more systematic sociological investigation, has
additionally fuelled a direction towards commentaries and expositions of a predomi-
nantly theoretical nature.37 And among the latter, the objectives of legal philosophy
have been much better served than those of sociology of law and, more broadly, socio-
legal studies.
Among the relatively few available empirical applications of Habermas’s legal theory
are the present author’s study in the field of the sociology of law that applied proposi-
tions derived from Habermas’s theory to an analysis of the history of US abortion
law.38 Related work concerned the development of a perspective of social control on
the basis of Habermas’s theory of system and lifeworld and its application to selected
contemporary forms of surveillance.39 In view of the sparse use of Habermas’s work
in sociology of law (and sociolegal studies more broadly), it is striking that the most
sustained efforts to develop empirical applications of Habermas’s legal theory have
been contributions by authors in the field of jurisprudence. To some extent this applies
to strands in American professional jurisprudence where concepts of Habermas have
occasionally informed analyses of specific aspects of legal policy.40 Yet, the influence of
Habermas’s legal work is especially strong in the more academically oriented tradition
of German jurisprudence, which has greatly contributed to a Habermasian-inspired
understanding of law in concrete sociohistorical settings.41 Attuned to the needs of
the empirically minded student of law, Habermas’s discourse model is applied to the

37
See eg B Honig, ‘Between Decision and Deliberation: Political Paradox in Democratic Theory’ (2007)
101 American Political Science Review 1; S Grodnick, ‘Rediscovering Radical Democracy in Habermas’s
Between Facts and Norms’ (2005) 12 Constellations 392; J Mahoney, ‘Rights without Dignity? Some Critical
Reflections on Habermas’s Procedural Model of Law and Democracy’ (2001) 27 Philosophy and Social Crit-
icism 21; JL Marsh, Unjust Legality: A Critique of Habermas’s Philosophy of Law (Lanham, MD, Rowman
& Littlefield Publishers, 2001); T Hedrick, Rawls and Habermas: Reason, Pluralism, and the Claims of
Political Philosophy (Stanford, Stanford University Press, 2010); MC Modak-Truran, ‘Secularization, Legal
Indeterminacy, and Habermas’s Discourse Theory of Law’ (2007) 35 Florida State University Law Review
73.
38
M Deflem, ‘The Boundaries of Abortion Law: Systems Theory from Parsons to Luhmann and
Habermas’ (1998) 76 Social Forces 775.
39
M Deflem, ‘Social Control and the Theory of Communicative Action’ (1994) 22 International Journal
of the Sociology of Law 355; JR Lilly and M Deflem, ‘Profit and Penality: An Analysis of the Corrections–
Commercial Complex’ (1996) 42 Crime and Delinquency 3.
40
See eg AA Felts and CB Fields, ‘Technical and Symbolic Reasoning: An Application of Habermas’ Ideo-
logical Analysis to the Legal Arena’ (1988) 12 Quarterly Journal of Ideology 1; D von Daniels, The Concept
of Law from a Transnational Perspective (Burlington, VT, Ashgate, 2010); A Bächtiger and J Steiner (eds),
‘Empirical Approaches to Deliberative Democracy’ (2005) 40 Acta Politica 153; WE Scheuerman, Frankfurt
School Perspectives on Globalization, Democracy, and the Law (New York, Routledge, 2008).
41
Most instructive for the influence of Habermas’s thought in jurisprudence is the discussion between
Robert Alexy and Klaus Günther. See R Alexy, ‘A Discourse-Theoretical Conception of Practical Reason’
(1992) 5 Ratio Juris 1; R Alexy, ‘Justification and Application of Norms’ (1993) 6 Ratio Juris 157;
K  Günther, Der Sinn für Angemessenheit: Anwendungsdiskurse in Moral und Recht (Frankfurt, Suhrkamp,
1988); K Günther, ‘A Normative Conception of Coherence for a Discursive Theory of Legal Justification’
(1989) 2 Ratio Juris 155; K Günther, ‘Criticial Remarks on Robert Alexy’s Special-Case Thesis’ (1993) 6
Ratio Juris 143.
 90 Mathieu Deflem

analysis of juridical discourse on the basis of the principle that legal debates (ranging
from legislative discussions to judicial decisions) rely upon linguistic means to arrive at
rational conclusions that are oriented at meeting the consensus of all who are involved.
From the viewpoint of a practically minded legal policy, such work can lead the way
to develop legal regulations in the form of a juridification that is not systematically
distorted and instead democratically accountable.
Regardless of the strength and limitations of the debates on the merits of Haber-
mas’s legal theory in the realm of legal and sociolegal studies, such secondary works
demonstrate the potential relevance of Habermas to the study of modern law. Concep-
tually, they provide clarification within the context of Habermas’s broader theoretical
project as well as relative to other, competing and complementary theories. Empirical
applications in social science and legal research additionally show that it is possible
to use rather than merely discuss Habermas. This chapter, likewise, hopes to have
explained some of the key elements of Habermas’s legal theory which can and should
be further investigated by means of consultation of the primary sources, a reading
that can and ideally will also pave the way towards the elaboration of a Habermasian
tradition of empirical work on law.

View publication stats