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Habermas on Law and Democracy: Critical Exchanges

University of California Press

Among legal scholars expressions such as "social ideal" or "social model," and even "social vision," have become generally accepted ways of referring to the images of society inscribed in a legal system. Such expressions refer to those implicit images of one's own society that guide the contemporary practices of making and applying law. These images or paradigms provide the background for an interpretation of the system of basic rights. In other words, they orient the project of realizing an association of free and equal citizens. A paradigm is discerned primarily in paramount judicial decisions, and it is usually equated with the court's implicit image of society. For example, Friedrich Kübler speaks of the "social construction of reality" that underlies judgments of facts in legal discourse, that is, how factual courses of events and the functioning of social systems are described and evaluated by judges.1 As early as 1931, Otto Kahn-Freund examined the "social ideal" of the Supreme Labor Court (Reichsarbeitsgericht ) during the Weimar Period from the perspective of ideology critique.2 Two decades later Franz Wieacker introduced the equivalent concept of the "social model" for descriptive purposes when he deciphered the liberal paradigm of law in the classical statute books of private law3 In elaborating the paradigm of bour-

Professor Emeritus, University of Frankfurt, Germany.

Translated by William Rehg.

See FRIEDRICH KÜ BLER, ÜBER DIE PRAKTISCHEN AUFGABEN ZEITGEMÄßER PRIVATRECHTSTHEORIE 9 (1975).

Otto Kahn-Freund, Das soziale Ideal des Reichsarbeitsgerichts, in ARBERITSRECHT UND POLITIK 149 (Thilo Ramm ed., 1966).

See FRANZ WIEACKER , Das Sozialmodell der klassichen Privatrechtsgesetzbücher und die Entwicklung der modernen Gesellschaft, in INDUSTRIEGESELLSCHAFT UND PRIVATRECHTSORDNUNG 5 (1974).

geois formal law, Wieacker's famous study simultaneously clarified the background in contrast to which the "materialization" of law during the last one hundred years could emerge.4 This social transformation of law was initially thought of as a process in which a new instrumental understanding of law, one related to social welfare conceptions of justice, was superimposed on the liberal model of law, which it suppressed and finally supplanted. German jurisprudence h as perceived this process, which dissolved the classical unity and systematic organization of the legal order, as a "crisis of law." In the first part of this Article, I will introduce the two paradigms of formal and materialized law in their standard versions. The second part examines the recent criticism of welfare-state paternalism in order to introduce a third paradigm of law—the proceduralist paradigm. The proceduralist paradigm is more appropriate for complex societies than the two paradigms that have competed up to now. Finally, this Article uses the example of feminist legal theory to elucidate an important aspect of this new paradigm—the internal connection between the private or social autonomy of the individual legal person and the public or political autonomy of citizens in democratic opinion- and will-formation.

I.

The welfare-state model emerged from the reformist critique of bourgeois formal law. According to this model, an economic society institutionalized in the form of private law (above all through property rights and contractual freedom) was separated from the sphere of the common good and the state, and left to the more or less spontaneous working of market mechanisms. This "private law society" (Privatrechtsgesllchafi ) was tailored for the autonomy of legal subjects who, primarily as market participants, would seek and find their happiness by pursuing their own particular interests as rationally as possible. Since the principle of legal freedom implied equal protection for all persons, this principle seemed to satisfy the normative expectation that, by delimiting spheres of individual liberty through guarantees of a negative legal status, social justice could be concomitantly produced. The right of each person to do as he or she pleases within the limits of general laws is legitimate only under the condition that these laws guarantee equal treatment. This legitimating force, found in equal treatment, appeared, from a liberal point of view, to be already guaranteed through the formal universality of legal statutes, that is, through the grammar and the semantic form of conditional legal programs. In any case, this form of abstract and general law was typical for the norms of bourgeois private law

See id.

that confer powers and impose prohibitions.5 However, the expectation of social justice was implicitly linked with the demarcation of nondiscriminatory conditions for the actual exercise of those liberties granted by legal norms regulating contracts, property, inheritance, and association. This expectation tacitly relied on a certain image of society. Primarily, it depended on economic assumptions about equilibrium in market processes (with entrepreneurial freedom and consumer sovereignty). Corresponding to these were sociological assumptions about the distribution of wealth and an approximately equal distribution of social power, which was supposed to secure equal opportunities for exercising the powers conferred by private law. If freedom in "the capacity to own and acquire property" is to fulfill justice expectations, then an equality of "legal ability" must exist.

Of course, these and similar background assumptions of the liberal model soon proved vulnerable to substantive criticisms. This led to a reformist praxis which, however, was based not on a change in the normative premises, but only on a more abstract version of them. It was the same system of basic rights that now, with a changing image of society, led to a different reading. Under the conditions of an organized capitalism dependent on the government's provision of public infrastructure and planning, and with a growing inequality in economic power, assets, and social opportunities, the objective legal content of subjective private rights became visible. In such a changed social context, the universal right to equal individual liberties could no longer be guaranteed through the negative status of the legal subject. Rather, it proved necessary, on the one hand, to specify the content of the existing norms of private law and, on the other, to introduce new categories of basic rights grounding claims to a more just distribution of socially produced wealth and a more effective protection from socially produced dangers. From a normative point of view, both the materialization of private law and the new category of social entitlements are justified in a relative sense , namely in relation to an equal distribution of individual liberties. As Robert Alexy explains, materialization results from the fact "that legal freedom, that is, the legal permission to do as one pleases, is worthless without actual freedom, the real possibility of choosing between the permitted alternatives."6 Social entitlements, on the other hand, are due to the fact "that under the conditions of modern...