Discourse theory of law from Habermas

by Sebastian Benthall

There has been at least one major gap in my understanding of Habermas’s social theory which I’m just filling now. The position Habermas reaches towards the end of Theory of Communicative Action vol 2 and develops further in later work in Between Facts and Norms (1992) is the discourse theory of law.

What I think went on is that Habermas eventually gave up on deliberative democracy in its purest form. After a career of scholarship about the public sphere, the ideal speech situation, and communicative action–fully developing the lifeworld as the ground for legitimate norms–but eventually had to make a concession to “the steering media” of money and power as necessary for the organization of society at scale. But at the intersection between lifeworld and system is law. Lawserves as a transmission belt between legitimate norms established by civil society and “system”; at it’s best it is both efficacious and legitimate.

Law is ambiguous; it can serve both legitimate citizen interests united in communicative solidarity. It can also serve strong powerful interests. But it’s where the action is, because it’s where Habermas sees the ability for lifeworld to counter-steer the whole political apparatus towards legitimacy, including shifting the balance of power between lifeworld and system.

This is interesting because:

  • Habermas is like the last living heir of the Frankfurt School mission and this is a mature and actionable view nevertheless founded in the Critical Theory tradition.
  • If you pair it with Lessig’s Code is Law thesis, you get a framework for thinking about how technical mediation of civil society can be legitimate but also efficacious. I.e., code can be legitimized discoursively through communicative action. Arguably, this is how a lot of open source communities work, as well as standards bodies.
  • Thinking about managerialism as a system of centralized power that provides a framework of freedoms within it, Habermas seems to be presenting an alternative model where law or code evolves with the direct input of civil stakeholders. I’m fascinated by where Nick Doty’s work on multistakeholderism in the W3C is going and think there’s an alternative model in there somewhere. There’s a deep consistency in this, noted a while ago (2003) by Froomkin but largely unacknowledged as far as I can tell in the Data and Society or Berkman worlds.

I don’t see in Habermas anything about funding the state. That would mean acknowledging military force and the power to tax. But this is progress for me.

References

Zurn, Christopher. “Discourse theory of law”, in Jurgen Habermas: Key Concepts, edited by Barbara Fultner

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