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HabermasThe Discourse Theory of Law and Democracy$
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Hugh Baxter

Print publication date: 2011

Print ISBN-13: 9780804769129

Published to Stanford Scholarship Online: June 2013

DOI: 10.11126/stanford/9780804769129.001.0001

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Habermas's “Reconstruction” of Modern Law

Habermas's “Reconstruction” of Modern Law

(p.60) Chapter Two Habermas's “Reconstruction” of Modern Law
Stanford University Press

Jürgen Habermas's analysis of modern law is based on the social condition that he calls the “rationalization of the lifeworld.” He argues that through this process of rationalization, the cultural tradition has been largely secularized and has lost much of its power to prescribe in advance the division of labor and social roles. While he views communicative action as a means to coordinate action and integrate society, he insists that it is not the only mechanism. These difficulties are addressed by modern law, which Habermas argues has the power to steer actors' choices through sanctions and has claim to legitimacy. The idea that a legal order's legitimacy buttresses its long-run stability is a key assumption of social theory and features prominently in Max Weber's sociology of law. This chapter explores Habermas's reconstruction of modern law, as well as the tensions between ideal and empirical validity and the tensions between legitimacy and enforcement. It also considers Habermas's argument about the tension between facticity and validity, his account of the system of rights, and his notion of the constitutional state.

Keywords:   Jürgen Habermas, modern law, rationalization, legitimacy, validity, social theory, Max Weber, system of rights, constitutional state, facticity

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