Habermas

Question 1

What is Habermas’ theory of law?

Answer 1

Communicative action:
• Law is rooted in
1. Communicative rationality
2. Deliberative democracy

Question 2

What is communicative rationality?

Answer 2

Through argumentation, intersubjective (social) rationality can make communication possible

Question 3

What is ‘argumentation’?

[Communicative rationality]

Answer 3

1. Absence of coercive force
2. Mutual search for understanding
3. ‘Better’ argument wins

Question 4

What are the participants with communicative rationality like?

[Communicative rationality]

Answer 4

Self-reflexive and open to dialogue

1. Can and willing to reflect on own premises
2. Can and willing to thematise aspects of their cultural bg knowledge to question previously unquestioned suppositions

Question 5

What is deliberative democracy?

Answer 5

• Decisions are made after authentic deliberation, not just after voting
• If cannot reach consensus after deliberating on proposal, then vote (majority wins)

Question 6

What is ‘authentic’?

[Deliberative democracy]

Answer 6

Free from distortions of unequal political power (e.g. gained from economic wealth)

Question 7

How does Habermas see law?

Answer 7

1. Law = Medium of social integration

2. Law caught between facticity and normativity

Question 8

What is the proceduralist paradigm?

Answer 8

1. Between Liberal and Welfare-state; NLT and LP
2. Govern aspects like basic negative liberties, rights to political participation, social and econ rights, etc
3. HIGHLY ABSTRACTED AND IDEALISED

Question 9

What is Habermas’ legitimacy of law?

Answer 9

1. Comes from law’s guarantee to LIBERTY
   • Internal connection b/w coercion and freedom
2. Law is more the structure of debate: Use the language of rights
   • Need redistributive justice (Rawlsian sense) to guarantee liberty + law’s legitimacy

Question 10

Critique?

Answer 10

• Are all people willing and able to contribute to the sort of discourse Habermas wants?