Haberma's Discourse Theory of Law and the Relationship between Law and Religion
Capital University Law Review, Vol. 26, p. 461, 1997
22 Pages Posted: 17 May 2006
Jürgen Habermas's discourse theory of law poignantly sets forth the modern legitimation crisis of law. Relying on Max Weber's social theory and sociology of law, he argues that the rationalization of society has eliminated religious and metaphysical justifications for law and has differentiated law from politics and morality. Law must now be legitimated based on its legality. The legal positivists (including Weber, H.L.A. Hart, John Austin) and John Finnis attempt to define legality merely in terms of procedural requirements. Habermas, however, demonstrates the circularity of this definition of legality. Legal positivists fail to legitimate the procedural requirements that are claimed to validate law; they merely rely on a subjective belief (rationality) in the legitimacy of the existing legal procedures. To address this problem, Habermas claims that legality can legitimate the law based on the discourse principle. The discourse principle claims that voluntary, intersubjective agreement by all those affected by a legal norm provides a basis for legitimation. To the contrary, the discourse theory of law is also circular and fails to explain adequately how intersubjective agreement can legitimate law. Law as legality thus cannot have subjective or intersubjective rational grounds for legitimation. Consequently, the summary and critique of Habermas's discourse theory of law in this article attempts to call into question the modern consensus that law can be legitimated independently of a religious or metaphysical worldview and opens up the possibility that law must have a religious and metaphysical justification if it is to have any rational justification at all.
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