HABERMAS: THE DISCOURSE THEORY OF LAW AND DEMOCRACY

by Hugh Baxter. Stanford, CA.: Stanford University Press, 2011. 352p.Cloth $60.00. ISBN: 9780804769129. E-book $60.00. ISBN: 9780804777810.

Reviewed by Philip Shadd, Department of Philosophy, Queen’s University. Email: philip.shadd [at] queensu.ca.

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Given the wide scope of J├╝rgen Habermas’ thought, the evolution of his views over time, and his straddling of Anglo-American and German traditions, providing an overview of Habermas’ legal theory poses a formidable challenge. This is the task undertaken by Hugh Baxter in Habermas, a volume in the “Profiles in Legal Theory” series published by Stanford Law Books. It is a task that Baxter accomplishes very well. Whatever weaknesses the book might have are apparent only when the work is approached from a particular disciplinary perspective, and would be weaknesses only relative to that particular perspective. From the perspective, say, of an Anglo-American legal philosopher, certain features of the work may be perceived as weaknesses; while from the perspective of a sociologist, the book might be considered lacking in other respects. On the whole, however, Habermas is an excellent overview not only of Habermas’ legal theory, but also of many relevant aspects of his social and political theory.

The book’s material is organized in a roughly chronological manner. The first chapter surveys the basic concepts in Habermas’ major early work, Theory of Communicative Action, published in two volumes in 1984 and 1987. Theory of Communicative Action is a work of critical social theory rather than legal philosophy, but it develops many concepts on which Habermas draws in the later development of his explicitly legal theory. The fifth and final chapter surveys Habermas’ views on three issues taken up in his most recent work: the place of religion in liberal politics, multiculturalism, and global justice.

In between are three chapters predominantly based on Habermas’ magnum opus, Between Facts and Norms. Published in 1996, Between Facts and Norms explicitly sets forth Habermas’ mature views on legal theory. Chapter 2 explains Habermas’ “reconstruction” of “modern law.” Focussing both on Habermas’ analysis of constitutional liberal democracies as well as on Habermas’ analysis of legitimate law within such societies, the chapter explains how his discourse theory of law conceptualizes modern law as a mediator between facticity and validity that converts “communicative power” into “administrative power.” Chapter 3 examines Habermas’ conception of judicial adjudication. It provides the Habermasian answer to the question of how law might meet the twin criteria of certainty and legitimacy, and it also examines Habermas’ view on judicial review. Chapter 4 explores the ways in which the societal model used in Between Facts and Norms is significantly different from that used in Theory of Communicative Action. Tracking shifts in Habermas’ social theory from the 1980s to the 1990s, [*2] Chapter 4 then moves naturally into the final chapter, which closes the book by considering various prominent strands of Habermas’ work over the last decade.

This brief survey of the book’s five chapters suggests how it will have strengths and weakness relative to the particular disciplinary perspective from which one approaches it. For instance, although the book is a profile in legal theory, philosophers of law may be disappointed that only one of the five chapters – Chapter 3 – focuses exclusively on Habermas’ legal theory. The other four chapters all discuss Habermas on law within a broader analysis of his views on sociology and political theory, with each of philosophy of law, sociology, and political theory taking periodic turns in the foreground of Baxter’s discussion. In particular, for readers in the Anglo-American tradition of philosophy of law, the amount of time devoted to Habermas’ underlying social theory will be conspicuous. Habermas’ sociology occupies the foreground for most of both Chapters 1 and 4. Particularly in light of the fact that Baxter eventually suggests that Habermas jettison the system/lifeworld social model of Theory of Communicative Action in favour of the “circulation of power” model of Between Facts and Norms, legal theorists might fault Baxter for dwelling too long on the former. After all, Baxter’s suggestion implies that the system/lifeworld model, and thereby much of the discussion that occupies most of Chapter 1 and some of Chapter 4, is not even needed in order to understand Habermas’ mature legal theory.

To be sure, some appreciation of Habermas’ underlying social theory is indispensable in order to understand his legal theory, including at least some appreciation of both his earlier and later models of society. Moreover, the fact that Baxter views Habermas’ coupling of legal and social theory as a “great advantage of [Habermas’] theory” (p.101) probably helps explain why Baxter spends as much time as he does on the sociological aspects of Habermas’ overall picture.

However, the book is not advertised as a summary of a wide range of Habermas’ work, but only of his legal theory. Consequently, philosophers of law may feel that Baxter has given us more information than is really necessary on some secondary issues.

It might be said that even if Anglo-American philosophy of law can be narrowly approached without recourse to broader considerations of sociology and political theory, Habermas’ legal theory cannot: Habermas is not only a jurist, but also a sociologist, and unlike his Anglo-American counterparts in philosophy of law, his legal theory cannot be understood without proceeding in a way that is unfamiliar to those working within the Anglo-American tradition. This is a very plausible position. But even if this is the justification for spending as much time as Baxter does on Habermas’ social and political theory, it would be helpful to situate Habermas within the broader context of the questions traditionally tackled by Anglo-American philosophy of law – questions such as those pertaining to the debate between natural law and legal positivism and to the nature of law. In short, if Baxter is going to include extended discussions of topics that many readers will not customarily consider germane to [*3] a work in legal theory, then more attention could be spent on explaining how the uniquely Habermasian way of doing legal theory bursts the traditional categories of Anglo-American philosophy of law. While sociologists will likely find the extended discussions of Habermas’ social theory a familiar and welcome entry point into Habermas’ legal theory, philosophers of law would benefit from further justification for the inclusion of these discussions.

We can also assess how the book will have certain strengths and weaknesses relative to one’s disciplinary perspective in light of the book’s expressed aim to be an introductory, accessible text. The book is certainly not introductory in regards to the complexity of the concepts it explores, nor in the sophistication and nuance with which it explores them. Rather, it aspires to be introductory in the sense that it “presumes no prior familiarity with Habermas’s work and is designed to be understood by those with little prior acquaintance with law and legal theory” (p.1).

The book succeeds unevenly in this respect. On the one hand, the book provides excellent background information on the systems theories of Talcott Parsons (pp.35-38) and Niklas Luhmann (pp.180-188). Familiarity with the work of these sociologists is a prerequisite for understanding Habermas’ social theory, and, to a lesser extent, his legal theory. On the other hand, Habermas seems to presume much more knowledge of John Rawls’ political philosophy (pp.76-82) and of Ronald Dworkin’s legal theory (pp.109-116). This time it is not the Anglo-American legal and political philosopher who will perceive a weakness, but sociologists and more empirically focussed political scientists. Baxter also provides scarcely any background to the legal theory of H.L.A. Hart or to John Hart Ely’s theory of judicial review, both of whose theories are relevant to contextualizing Habermas’ legal theory that self-consciously tries to span both the Anglo-American and German traditions of legal theory.

Given the book’s professed focus on legal theory, it is unfortunate that it is in regards to these legal theorists that the book fails to make good on its intention to not presume prior knowledge on the part of the reader. This weakness is also especially puzzling when considering the excellent and helpful introductions given to non-legal theorists whose work is discussed in regards to Habermas’ thought. Not only are there excellent introductions to Parsons and Luhmann; informative summaries are also provided of the debate between Will Kymlicka and Brian Barry on multiculturalism (pp.208-215), and of the debate involving Rawls, Robert Audi, Paul Weithman, and Nicholas Wolterstorff on the role of religious views in liberal democracies (pp.193-200). In respect to these latter two issues, Habermas definitely succeeds in not presuming any prior knowledge of the prevailing debates.

The book aims to be critical, not only exegetical. How does it fare on this front? Very well. While giving insightful and charitable reconstructions of Habermas’ views, Baxter also makes illuminating criticisms of Habermas’ work consistently throughout the book. Many of these criticisms assist the reader in identifying unresolved tensions in Habermas’ thought, as well as aspects of [*4] his thought that require further explanation. For example, Baxter points out that Habermas’ theory of judicial review recommends judicial activism so as to protect the democratic process, while Habermas’ disdain for “value jurisprudence” seems to recommend judicial restraint. Baxter concludes that, “it is difficult to know exactly what to make of Habermas’s account of the constitutional court’s legitimate role” (p.147). As another example, Baxter argues that Habermas’ conception of adjudication is hampered by untenable dichotomies between justification and application, and between values and principles (p.117). Not all of Baxter’s critical remarks pertain to Habermas qua legal theorist – many such remarks pertain more to Habermas’ social or political theory – but many of them do and all are valuable. Moreover, Baxter’s critical analysis is not only the negative project of pointing out perceived flaws in Habermas’ theory, but Baxter also makes positive suggestions for clarification and improvement, such as his suggestion that Habermas conceive of systems rather as “discourses” (p.188).

In conclusion, Baxter successfully navigates the disciplinary diversity of Habermas’ thought and produces a terrific summary of his legal theory in Habermas. Legal philosophers, as well as political philosophers and sociologists, should all find Baxter’s a well-informed, clearly written, and insightful aid. Although the book is introductory in the sense that it is presented as presuming little prior knowledge of legal theory, as a teaching tool the book is likely best suited only for students who already have a fairly solid background in legal theory or sociology and who are prepared to engage at a fairly high level of conceptual sophistication. This is not a weakness of the book, but simply a function of being a detailed and carefully written analysis of a theorist whose thinking is as complex as Habermas’. In short, given the wide variety of disciplinary perspectives from which readers will likely approach this book, Baxter’s volume might not please any one person perfectly, but it should serve everyone very well.




© Copyright 2011 by the author, Philip Shadd.