On The Reconstruction Of Habermas's Legislative Powers

Since modern times, Western societies face a modern age. Religion becomes much weaker , when the increasing secularization of society step up. The differentiation of material interest, the great social changes much , cultural mind, legal minds are experienced great change, we also face a significant change in the field of constitutional theory. There are many competing ideas between liberal paradigm and the welfare state paradigm. The difference on constitutional theory takes constitutional theory into a new era of development. In rule of law, liberal paradigm and the paradigm of the welfare state both fail to solve the facts and validity of normative tension .Habermas take discourse theory to resolve this problem. On the one hand, he claim the basic rights of liberalism as the default, on the other hand, he absorbed the theory of the positive dynamic function republican state.State legislative power is an important part of constitutional theory. He take the philosophy of discourse as the basis of the theory of legislative power , trying to resolve the tension between the fact and norms. It takes"the legitimacy through the legality"as its own understanding . With this understanding, the traditional philosophy of law based on constitutional theory - the concept of practical reason was reconstructed. Habermas put forward the concept of communicative rationality. Communicative rationality forms the norms accepted by the active people in the process of negotiation. To coordinate contacts, discourse theory of democracy constitutes the core of the coordination mechanism. Rule of law achieves its legitimacy through the democracy.Negotiations in the legislature, the legal paradigm shifts, and the right system are reconstructed. The shift of make the rights system inter-subject forms. At the Issues on the legislation and constitutional judgment, the judgment has a quasi-legislative effect, but the tension between fact and norms is solved by the legal discourse. On the issue of sovereignty and separation of powers, the Habermas propose a non-centralized social concept to explain the political process of legislation under the background of the new age. In this way, the non-centralized social concept enable the reconstruction of legislative power.This will be four chapters to discuss the reconstruction of Habermas on legislative power.The first chapter concentrated on the basis of reconstruction of the legislative, which including the relation between facts and norms, communicative rationality and discourse democracy .It is key to analyze the relation between facts and norms, which is the start point of reconstruction of legislative power. Communicative rationality is a new concept to solve the crisis of modernity. Discourse democracy is different from the concepts hold by Liberal democracy and Civic Republician. In ChapterⅡ,the legislative power is reconstructed by legal discourse ,communicative forms and transformation of rights system. The third chapter analyzes the logic of legislative power. Reconstruction of legislative power is to renew the relationship between the legislative and constitutional ruling, popular sovereignty and separation of powers. Chapter IV analyzes the legislative process,and value Habermas'theory. Habermas pay attention to legislative process paradigm, which has a power to form a reasonable consensus. For China, we should learn from Habermas'theory carefully, and promote the level of representative democracy.