Habermas, Philosophy Of Law Study

Jiirgen Habermas (1929-) is a famous thinker in our contemporary era. He distinguishes himself from other members of Frankfurt School in that he has not only his own critical theory,but also his constructive theory,the one to construct a better world for the future based on his critical theory. Habermas introduces bis discourse theory into legal domain. By doing so,he investigates and criticizes many kinds of legal schools and attempts to reconstruct modem legal theory.He also brings his legal theory into the practice to lead modern rule of law out of present predicament.Chapter 1 through 3 of the present dissertation examine how Habermas theoretically reconstruct his modern legal theory. Chapter 1 describes and analyzes Habermas's criticism to the methodologies of natural law school and positivist school of law. His discourse theory of law is based on bis theory of communicative action and discourse theory, and its aim is to solve the problem of legitimacy of law and rationality of legal practice. Chapter 2 elaborates Habermas's ontology of rights. He reconstructs the traditional theory of rights by replacing "natural state" or "the original position" with "ideal speech situation" as a starting point to define basic rights, replacing "practical reason" with "communicative rationality" as intersubjective participants' competence to construct basic rights and replacing moral principle with discourse principle as a basic principle to justify basic rights. Chapter 3 analyzes his axiology of law. Law with its legitimacy is a transformer between the system and lifeworld, it should protect private autonomy and public autonomy. Law also plays the role of integrating the society with pluralistical values. Discourse principle is the criterion of legitimacy of law.Chapter 3 through 6 investigate how Habermas's discourse theory of law applies to legislation, adjudication and administration. Chapter 4 expounds Habermas's discourse theory of democracy. Deliberative democracy confers legitimating force on the legislative process. Pragmatical discourse, ethical discourse, moral discourse and bargaining are four basic forms for legislation. Chapter 5 discusses Habermas's theory of adjudication. He brings discourse theory into the judiciary field in order to make adjudication legitimate and reasonable. Chapter 6 discusses the relationship between discourse theory and administration. He reconstructs administrative power.He applies his discourse theory to the administrative domain and attempts to get the late capitalist welfare state out of predicament of administration.Although academical circles both home and abroad show different attitude towards Habermas's legal philosophy, and although some of his viewpoints have a long distance from the reality, his endeavor to explore the future for modem rule of law is worth praising.lt is of great importance to investigate Habermas's legal philosophy both in theory and practice.