Secularization, Legal Indeterminacy, and Habermas's Discourse Theory of Law
Florida State University Law Review, Vol. 35, No. 73, 2007
Mississippi College School of Law Research Paper No. 2008-01
47 Pages Posted: 22 May 2007 Last revised: 5 Aug 2009
The unexpected vitality of religion has motivated scholars in many fields like anthropology, sociology, political science, international relations, and philosophy to revisit their assumptions about the supposed secularization of their disciplines. Despite this robust re-examination in other disciplines, the secularization of law arguably constitutes the most widely-held but least-examined assumption in contemporary legal theory. Legal scholars and philosophers have surprisingly ignored one exception--Jürgen Habermas's discourse theory of law. Accordingly, this article focuses on Habermas's sophisticated awareness of the tension between the secularization of law and legal indeterminacy and treats his discourse theory of law as a significant test of the feasibility of reconciling these claims. Relying on Max Weber's social theory, Habermas argues that the rationalization of society (i.e., secularization) has eliminated religious and metaphysical justifications for law and has differentiated law from politics and morality so that law must be legitimated in a seemingly paradoxical manner: by its legality. Habermas claims that legality can legitimate the law based on the discourse principle in the discourse of justification by voluntary, intersubjective agreement among all those affected and that the law can be impartially applied in the discourse of application via the principle of appropriateness without judges relying on personal moral, political, or religious convictions. At the same time, Habermas recognizes that the law is indeterminate so that strong legal formalism no longer maintains the secularization of law. Despite the aspirations of his weak legal formalism, Habermas's discourse theory of law is incoherent and fails to maintain the secularization of the law in the face of legal indeterminacy. The failure of Habermas's discourse theory of law represents a watershed moment for contemporary legal theory. Contemporary legal theory needs to comprehend that the widespread acceptance of legal indeterminacy calls into question current conceptions of the secularization of law and arguably demarcates the desecularization of the law.
Keywords: Secularization, Legal Indeterminacy, Habermas, Discourse Theory of Law, Jurisprudence, Legal Philosophy, Law and Religion, Legal Theory
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