Negotiations, Legal, And Social Justice

This dissertation mainly includes six chapters. The first chapter examines the post-capitalist predicament and explores the road to salvation. Chapter2mainly investigates how the law has become inevitable mode being maintained social justice and integrated society in contemporary capitalism. From Chapter3to Chapter4, mainly investigate the dialectical relationship between the facts and norms in law. Chapter5discusses the dialectical relationship between law and politics. Chapter6discusses the crisis of modern law and its method to salvation. Specific contents are as follows.Chapter1talks about the post-capitalist predicament and its road to salvation. Instrumental rationality has controlled every aspect in post-capitalist society. Habermas thinks that the result is made by the science and technology as ideology. Instrumental rationality further makes the economic crisis, rational crisis, legitimacy crisis and motivation crisis more serious. Legitimacy crisis is original crisis because it relates to the normative question. In addition, the nation-state has been brought into risk society by the questions about globalization, cultural plurality, high science and technology, ecology, immigration, and so on. Therefore, the legitimacy crisis of contemporary capitalism is more serious.Chapter2mainly investigates how the law has become inevitable mode being maintained social justice and integrated society in contemporary capitalism. At the same time, habermas put the dialectics between the facts and norms in law as the method Of investigation.Under the increasingly serious legitimacy crisis circumstances, because the theology of religions, the metaphysical world views have not qualified for the mode of social integration, the modern law has become the inevitable choice. Habermas critically investigates the post-capitalist society through law which maintains the social justice as a inevitable mode of social integration. Habermas thinks of the legal paradigm as a kind of core, and it condenses the dialectical method between facts and norms. Facts, norms and philosophy of language are integrated into one in habermas’s theory about philosophy of law. The facts and norms often present the tensions in contemporary law.The third part, from chapter3to4, mainly probe into the dialectics between facts and norms in law. The part mainly concern about the dialectical relation between facts and norms in right power, and constitution,or the dialectical relations among them. In the sight of traditional legal thoughts, they present tensed. But habermas believes that they should be eliminated one by one in his discourse theory.Chapter3mainly explores the dialectical relations between facts and norm s in the right or power. Habermas thinks that the such couples of concepts as morality and law, law and politics, communicative power and legislation are co-original and correlative, they should be eliminated in his discourse theory. The-se tensions can be eliminated by abiding by the principles of rights and rule of law in country in his theory of discourse. The principles of rights contain the right to the greatest possible measure of equal individual liberties, status of a member, legal protection, political autonomy, and social equality. The principles of rule of law concern about popular sovereignty comprehensive legal protect-tion, administration being subject to law and to judicial review, the separation of state and society. Under the principle of rights and rule of law, the subject-tive rights and objective law, human rights and people’s sovereignty, private au-tonomy and public autonomy, legitimacy and legality should be unified into a dialectical system, and communicative power, political power and social power also should be integrated into a dialectical system.Chapter4mainly investigates legal theory and opinion of procedural constitution. The facts and norms in traditional legal theory present contradictory. In addition, the traditional logic of separation of the three powers under the functional constitution also present paradox. Habermas eliminates every contradiction through his discourse theory about inter-subjective, pragmatics, and discourse, and reconstructs his legal theory and constitutional concept.Chapter5mainly probes into habermas’s procedural democracy and political theory. The degree of Habermas’s procedural democracy theory is stronger than liberalism, but weaker than republicanism. In addition, habermas insists that democratic procedure is neutral. Habermas’s procedural theory of democracy is double-track, and it emphasizes that the procedure of parliamentary democracy and voting procedure rooted in informal public sphere are in balance of the same originality and inter-construction. Habermas pay attention to how the discourse theory of democracy is translated into sociology. Philosophy should be better than sociology, because the latter is separated from philosophy. But sociology is increasingly away from philosophy later, and economic theory of democracy and system theory are typical among all kinds of sociology theory.Economic theory of democracy finds communicative power in order to solve the problem about "lack of legitimacy" in elitist theory of democracy, and system theory finds communicative language in order to solve the problem about" The lack of guidance and control" in elitist theory of democracy. The next, habermas further emphasizes inter-subjective discourse in his procedural theory of democracy through "sluice gate"’theory from his student Peters, pay attention to the attack from administrative power and social power, and prevent them from becoming the isolated one. In order to deal with the relations among communicative power, administrative power and social power, habermas further investigates public sphere and civil society. Private language is introduced into public sphere rooted in civil society through the two kinds of concept, and it is also translated into public opinions; the public opinions are filtered into communicative power through "sluice gate"(it is mainly Parliament, and sometimes court and administrative department); communicative power restrict administrative power; in addition, social power must be filtered by communicative power if it influences administrative power. Thus, communicative power, administrative power and social power can be dialectical unity, and civil society and lifeworld are also interacted and interconnected.Chapter6mainly explores the crisis of legal paradigm and method of salvation to legal modernity in post-capitalism. Habermas think that capitalist legal paradigm is changed from liberalist legal paradigm to welfare-stated one. But they are all fell into dilemma because they all adhere to principle of production in economic society being relevant to industry-capitalism, and lead to the crisis of legal modernity. It is the reason that they are based on the problem of realization on private autonomy about legal subject, and only regard the legal subject as receiver of law not as the maker of law at the same time. Habermas think that the method to eliminate the crisis of traditional legal paradigm is still with the help of legal paradigm. Legal paradigm contains the fact and norm, and it contains the logic relating to legal equality and substantive equality. The logic is rooted in the degree of realization in private autonomy and public autonomy. Habermas’s procedural legal paradigm contains the dialectic between private autonomy and public autonomy,and also contains he dialectic between equal status and equality of treatment. Habermas endeavor to expounds the dialectical relations above for feminist struggle for their rights as a example. The crisis of legal paradigm also lead to the crisis of rule of law in country. Habermas has changed from the traditional logic of separation of the three powers to the logic of separation of the three powers in discourse theory, and eliminates the crisis of rule of law in country by using it. Last, habermas emphasizes that his procedural legal paradigm is not a Utopia but a necessary and practical idea.In a word, habermas depicts the process of dialectical movement from law to physics,and from physics to society in accordance with the Hegel’s logic of dialectical movement such as " the affirmation, the negation and the negation of negation", then it realize the regression in a higher level above the empty concept of original rights. He aspires to struggle for a impartial Germany, a impartial Europe and even a impartial world citizen society.Of course, habermas’s legal philosophy is intensely controversial, and it’s reality is doubt, let alone completely China. We should critically absorb habermas’s legal philosophy in accordance with the reality in China.