Law As A Medium And Converter

Jurgen Habermas's discourse theory is based philosophically upon theory of communicative action and consensus theory of truth, and socially upon living world and systems. As the key concept in discourse theory, communicative action generated from public sphere in living world,taking "living world" as knowledge source and background,and the reproduction of material of "system" as material foundation.Deliberative democracy is a democratic politics theory generated on the basis of discourse theory, and it uses discourse ethics as moral foundation. When the principle of discourse and the principle of universalization in discourse ethics are actualized in legal field, administrative power is then generated. Administrative power and communication power are differentiations of political power in Haberman's deliberative democracy theory, in which the changing process from communication power to administrative power should be through the medium of law, and in which administrative power and social power should be under the regulation of communication power. In discourse theory, law is a knowledge/symbol system as well as an action system,shares the same origination and complementary structure with morals. As a subsystem of complex social systems, law performs conformity function and takes rights system, which is the prerequisite and guarantee of the legalization of deliberative democracy, as a core.The premise of function of double-track system of democracy is that law must firstly be the medium of "living world" and "system" and then has Conformity function. The Premise of Normative of double-track system of democracy is that law,being the medium of individual autonomy and public autonomy, actualizes the fact that individual autonomy shares the same origination and complementary structure with public autonomy, and unifies human rights and popular sovereignty by means of power system. The tension of facticity and validity of legal connotation is the origin of law's power of social reorganization, as well as the reason of law's power of solving legitimacy issues. The transformation function of law is embodied in the operation of double-track system of democracy, of which the principle of power conversion is the transformation from principle of discourse to principle of democracy.In double-track system of democracy politics,law functions as the transformation ability of the cycle of political power. The medium function and transformation function of law are both connective and distinctive.In double-track system of democracy politics, the normal circulation of power means the transformation from communication power to administrative power; the reverse circulation of power, on the other hand, means the top-down model of administrative power's influence on the generation of communication power as well as its illegal connection with social power. Aggravations of political power's reverse cycle would eventually destroy democracy itself, supervisions and regulations of normal cycle are therefore rather necessary. To actualize the normal cycle of political power is to reduce distorted communication through checking and considering the difference between real and ideal speech situation; Public sphere, based on dynamic civil society, facilitates the formation of communication power. And it is civil society that connects public sphere with private sphere, and that represents the distinction of nation and society. Only a four-basic-rights-contained, self-referred, and self-restricted civil society could generate its own dynamism,and thereby avoid the distortion of public sphere from the system, and eventually raise the possibility of actualizing deliberative democracy.