Legal review

Academic Study Plan for Ph. D:

Habermas’ Communicative Theory and Problem of Legal Modernity

Zhu Zhihao

Ⅰ.Introduction to the Plan in General

As the second generation of the Frankfurt School, Habermas play an important role in academic fields nowadays. His knowledge background can be distinguished into the following dimensions: (a) German Idealism, from Kant to Hegel; (b) Marxism philosophy, including Lukacs and early Frankfurt School; (c) Freud’s spiritual analysis, including Piaget and Kohlberg’s developmental psychology; (d) Language analysis, especially pragmatics tradition, including Austin, Searl and K.O. Apel; (e) Hermeneutics and phenomenology, including Husserl and Gardamer; (f) German social theory, composed by liberalism and conservatism such as Max Weber, Simmel and Max Scheller. [1]

Habermas’ works refer to such many fields just like philosophy, history, aesthetics, sociology, science of law and politics that George Lichtheim evaluates Habermas by saying that:

“At an age when most of his colleagues have painfully established control over one corner of the field, he has made himself master of the whole, in depth and breadth alike.”[2]

At the same time, Habermas continued to argue with his colleagues, not only in Germany but the entire world. Michel Foucault, Jacques Derrida, John Rawls are all in his debates. Habermas inherited Horkheimer’s critique of tool rationality and tend to reconstruct the normative foundation of modern social after studying legitimacy crisis of late capitalism. Then he used the concepts of life-world and intersubjectivity in phenomenology to bring up the idea of his communicative theory in the form of universal pragmatics. In the philosophy of modernity, he came back to Hegel and Fichte, who point out that subjectivity theory made self-references of subject itself. In 1990s, his interest had been turning into the field of political philosophy, ethics and legal philosophy, and then he came back to Kant who wanted to establish a formative ethical principle. In conclusion, Habermas is an encyclopedia of the contemporary western thoughts, especially German thoughts.

As to the theory of modernity, Habermas gave his every effort to resist the postmodernism current of thought. The concept of modernity originated from the Renaissance and the Religion Reform in 16^th century, and his elementary figure was seen in Querelle des Anciens et des Modernes of 18^th century. Modernity as the core idea of the Enlightenment is pursuing after rationality, science and liberty. Subjectivity is the essential principle of modernity, and modernity is composed of two logic dimension by the impetus of subjectivity: the one is subjective dimension, and the other one is objective dimension. In the subjective dimension, subject is the legislator of itself just as Kant’s ethical principle, and in the objective dimension, subject tries to reconstruct its world and society. However, this logic method went wrong because of absolutized subjectivity. The people tend to be blind to value and morals, and only pay attention to the technology and science. They equal the concept of rationality [Vernunft] to the understanding [Verstand] so that finally they find that they are in an iron cage of tool rationality.

The modernity confronted the postmodernism in 20^th century because of its dilemma. Postmodernism takes rationality as the tool-rationality and then opposes the rationality and its character of universality and certainty. As well, postmodernists negative scientism and monism, and advocate relativism and pluralism, especially in the fields of politics and law. Postmodernity is the reflection of modernity, but in fact, postmodernism does not get its goal. Postmodernism makes the society losing its common purpose and enlarges the man’s vacant feelings.

There is also problem of modernity in the fields of law. Legal positivism is seen as legal modernism. But legal positivism has its own problem, such as separation of law and morals, tension of validity and effects and so on. The Nazi’s wrong law pushed many contemporary scholars to reflect the theory itself. If there is a valid law without justice, should we obey it? But how we can say the certain law is justice? The problem of legal positivism is a common topic of the whole world. How to insist the modernity of law as well as to avoid its illness is the question to all of us.

Habermas’ attitude to modernity is affirmative. In one side, he inherited critical theory of the Frankfurt School, and diagnosed the illness of modernity. In the other side, he saw modernity as an unfinished project, and defends the modernity which derived from the Enlightenment. He tried to reconstruct the normative foundation of modernity by communicative rationality. He criticized the subjectivity of idealism philosophy and found the certain rather than transcendental content of modernity by the studying of life-world. In the legal and political philosophy, his discourse theory wanted to justify the political and normative legitimacy of democratic liberalism by the communicative rationality. It is undoubted that the discourse theory can resolve the problem left by the legal positivism.

Ⅱ.The Main Content of the Plan

ⅰ. The Preparation before the Plan

In the period of bachelor, I paid much attention to the following fields: (a) formation and development of Anglo-American and Continental legal traditions and their comparison; (b) elemental problems of legal philosophy; (c) legitimacy of law. My bachelor degree paper’s topic is ‘Dualism of Ought-to-be and To-be in Law’. In the particle, I attempted to analyze the history of theories, and find the separation theory of ought-to-be and to-be in the context of the natural law, as well as the separation theory of facts and norms in the context of the legal positivism. Then I pointed out the paradox of the each one. I indicated that the former's trouble is the justification of legitimacy whereas the latter's is the limited scope of norms.

In the period of master, I paid much attention to the following fields: (a) Habermas’ communicative theory and his theory of modernity; (b) the main issues of Max Weber’s social theory; (c) German classical philosophy and contemporary phenomenology; (d) contemporary American neo-pragmatism; (e) legal modernity and construction of rule-of-law in China. During the studying, I tried to establish my own system of methodology and got a primary achievement. My master degree paper’s topic is ‘On Law and Total Worldview’. In the particle, I pointed out the problem of Chinese legal modernization by studying total worldview. At first, I analyzed the concept of totality in philosophy from the ancient Greek to the present day, and then argued that the real total worldview is the one in which the totality relates to worldview by intersubjective practical behavior and discourse of the man. And then, I analyzed the problem history of law and jurisprudence, and then pointed out that the dilemma of law is caused by the idea that intellectualizes law and its system and takes law as a categorical system of understanding. The only outlet is that law is in tide relationship with total worldview and communicative practice of human beings. This particle combined the western traditional philosophy with contemporary practice philosophy and social theory, and by this way, tried to reflect the paradox of legal modernity and Chinese legal modernization.

ⅱ. The Main Frame and Content of the Plan

The plan will be based on the preparation above. There are several parts in the plan as following:

A. The Fundamental Theory and Problem of Modernity

I will set the historically origin and development of modernity as the study target in this part. At first, I will start with the aesthetic modernity. But for a short while, I will pay more attention to social and cultural modernity. As to the concept of modernity, I will read the works of M. Calinescu, M. Berman and A. Heuer. As to the social and cultural modernity, Max Weber’s social theory is my mainly studying clue. The study of priority of formative rationality in modern society is the most important in the study of Weber. In conclusion, I will argue that the problem of social and cultural modernity is based on the separation and conflicts between formative rationality and substantive rationality, by reading the works of A. Giddens, Z. Bauman and J. Habermas. In the end of this part, I will analyze modernity of law, by the historical order of Austin-Kelsen-Hart who are all in legal positivism. I will point out the dilemma of legal positivism playing an important role in legal modernity is caused by the separation and conflicts between formative rationality and substantive rationality in law.

B. The Conflicts between Formative Rationality and Substantive Rationality in the History of Philosophy

In this section, I will be based on the study of German classical philosophy and contemporary thoughts.

a. I will analyze the transcendental philosophy of Kant, especially the concepts of rationality and understanding in his Critique of Pure Reason, which indicated the possible conflicts between rationality and understanding. As well, I will study the transcendental ethical principle of Kant’s practical reason, and analyze the formative figure of this principle. In addition, I will also mention the dualism of neo-Kantism and its effects on the modernity.

b. I will analyze the reconciled philosophy of Hegel, as well as his legal and state philosophy and their effects on the contemporary political philosophy. After that, I will analyze the philosophy and social theory of Karl Marx, and then indicate his criticism to the formative legitimacy of capitalist society.

c. I will expound pragmatism and linguistic philosophy in the present age, and make clear the efforts of these thoughts to overcome the dilemma of the separation between the formative rationality and substantive rationality. Meanwhile, I tend to analyze limitations of these theories in the context of postmodernism.

d. I would like to thoroughly study contemporary political philosophy, especially John Rawls’ theory. In this part, I will explain the legitimacy problems caused by conflicts between formative justice and substantive justice.

C. Habermas’ Communicative Theory in the Dimension of Modernity

In this section, I will study Habermas’ communicative theory in the point of view about modernity.

a. I will pay attention to the Habermas’ analysis of the illness of modern society, focusing on legitimization crisis. The study in this part will be based on the background of inheritance from Western Marxism and Frankfurt School to Habermas.

b. The issue about construction of formative pragmatics is my target in this part. Habermas began to integrate the separation of form and substance, and converted paradigm of epistemology into paradigm of pragmatics. The study in this part will be based on the traditions of contemporary neo-pragmatism and linguistic philosophy.

c. Habermas’ theory of modernity, including his analyze and critique of Weber and Parsons’ social theory, as well as his debates with Foucault and Derrida, is the main content in this part. In conclusion, I will find the relationship between Habermas and Hegel on totality, and make further efforts to study the total worldview on the foundation of my master degree paper.

d. This part is about Habermas’ political and legal philosophy. This topic refers to reconstruction of legitimacy of modern society, including Habermas’ theory of the structural transformation of the public sphere and proceduralism on law. In this part, I will compare Habermas with Rawls, and subsequently, trace back to Kant’s formative ethical principle. In conclusion, I will point out that Habermas’ discourse theory in law and politics is still a kind of formative principle in its appearance, and however, its formative character integrate the division of formative appearance and substantive content so as to find the outlet of modernity of law and politics.

D. The Feasibility of Habermas’ Communicative Theory Aiding Legal Modernity

In this section, I will bring up some forward-looking thinking about legal modernity by the paradigm of communicative theory.

a. According to social rationalization of Habermas, I will indicate the limitation of formative rule-of-law in legal modernism, and then see proceduralism views of law as the messiah to defend and rescue formative rule-of-law.

b. I will pay attention to the attribute of modern law in the perspective of separation of life-world and system. I will argue that modern law must obtain the attribute of both life-world and system. Firstly, the meaning of law must origin from the life-world, whose background resources apply legitimacy for the law. Secondly, the applying of law must respond to the life-world, and otherwise, effects and validity of law must be separated, people disobeying law without identification as a result. Thirdly, the law must posses the attribute of system still. Modern society is highly complex and varied, and law with confused structure and logic cannot deal with the business of modern society.

c. I will mainly focus on Habermas’ theory of the structural transformation of the public sphere, and argue that the defect of modern formative democracy is caused by the process that representative legislation institution makes public sphere subordinate to the state, with the result that civil society lose the relationship with state and weaken gradually. In conclusion, I suggest that there must be a public sphere expressing the view and idea of civil society in a free and non-enforced atmosphere, besides the state power of legislation. It is undoubted that institutionalization of the public sphere idea is the outlet of modern formative democracy.

d. I try to find reliable theoretical paradigm of legal interpretation according to the study of formative pragmatics. There are two kinds of interpreting paradigm in legal interpretation theory: the subjective one and the objective one, and they are contradicted with each other. Only when we return legal interpretation to the discourse consensus of intersubject, can legal interpretation theory get beyond the dilemma of the subjective and the objective paradigm so as to get a reliable theoretical paradigm.

e. The problem of law’s legitimacy can be resolved by drawing the concept of life-world into jurisprudence. The relationships which law regulates are about person vs. person and person vs. commonwealth, and these relationships face three world: objective world, social world and subjective world as Habermas said. Every formatively conceptual world provides a kind of situation holism. They must be based on the background of life-world, and the men in them get consensuses with the others about something in the world by different validity claims’ criteria of each world. Then the consensuses in the problem of law’s legitimacy indicate the total worldview. This kind of total worldview avoids absolutized formative rule-of-law which loses meanings and value, and at the same time, provide a kind of certainty for legal modernity in the foundation of communicative rationality.

Ⅲ. English References for the Plan

Note: Many books have already been translated into Chinese. So I list only English references for the plan here. As to the relevant Chinese references, please see my study plan in Chinese.

Books:

1.        John Rawls, A Theory of Justice (Harvard University Press, 1971).

2.        Theodor W. Adorno, Negative Dialectics (Seabury Press, 1973).

3.        D. H. Hodgeson, Consequences of Utilitarianism: a Study in Normative Ethics and Legal Theory (Clarendon Press, 1967).

4.        E. Levinas, Totality and Affinity, trans. A. Lingis (Duquensne University Press, 1969).

5.        Richard J. Bernstein ed., Habermas and Modernity (Polity Press, 1985).

6.        Hans. Blumenberg, The Legitimacy of the Modern Age (MIT Press, 1983).

7.        D. Held & J. Thompson ed., Habermas: Critical Debates (MIT Press, 1982).

8.        S. Toulmin, Cosmopolis: The Hidden Agenda of Modernity (Free Press, 1990).

9.        Hans. Kelsen, Pure Theory Of Law (University of California Press, 1967).

10.    J. Finnis, Natural Law and Natural Rights (Clarendon Press, 1980).

11.    Helen M. Stacy, Postmodernism and Law: Jurisprudence in a fragmenting world (Ashgate, 2001).

12.    Robert S. Summers, The Jurisprudence of Law’s Form and Substance (Ashgate, 2000).

13.    Matthew H. Kramer, Legal theory, Political Theory and Deconstruction: Against Rhadamanthus (Indiana University Press, 1991).

14.    Stephen K. White ed., The Cambridge Companion to Habermas (Cambridge University Press, 1995).

15.    Karl Ameriks ed., The Cambridge Companion to German Idealism (Cambridge University Press, 2000).

Articles:

1.        H. L. A. Hart, “Positivism and the Separation of Law and Morals”, in: Harvard Law Review 71 (1958).

2.        L. Fuller, “Positivism and fidelity to law: a reply to professor Hart”, in: Harvard Law Review 71 (1958).

3.        H.L.A. Hart, “Problem of philosophy of law”, in: The encyclopedia of philosophy, Vol. 5/6 (1972).

4.        D. Kennedy, “Form and Substance in Private Law Adjudication”, in: Harvard Law Review 89 (1976).

5.        J. Habermas, “Modernity versus Postmodernity”, in: New German Critique, No. 22(1981).

6.        J. Handler, “Dependent People, the State and the Modern/Postmodern Search for the Dialogic Community”, in: UCLA Law Review 35 (1988).

7.        W. Murphy, “The Habermas Effect: Critical Theory and Academic Law”, Current Legal Problem 42 (1989).

8.        A. Frank, “Only by Daylight: Habermas’s Postmodern Modernism”, in: Theory, Culture and Society 9 (1992).

9.        D. Milovanovic, “Dueling Paradigms: Modernist Versus Postmodernist”, Humanity and Society 19 no.1 (1992).

10.    K.L. Scheppele, “Legal Theory and Social Theory”, Annual Review of Sociology 20 (1994).

11.    M. Rosenfeld, “Law as Discourse: Bridging the Gap between Democracy and Rights”, in: Harvard Law Review 108 (1995).

12.    J. Lacan, “Law and the Modern Mind”, in: Cardozo Law Review 16 (1995).

13.    J. Habermas, ”Paradigms of Law”, in: Cardozo Law Review 17 (1996).

14.    D. Litowitz, “Foucault on Law: Modernity as Negative Utopia”, Queen’s Law Journals 21 (1996).

15.    John P. McCormick, “Habermas' Discourse Theory of Law: Bridging Anglo-American and Continental Legal Traditions?”, in: The Modern Law Review, Vol. 60 (1997).

16.    J. Bohman, “Complexity, Pluralism and the Constitutional State: On Haberrmas’s Fakitzität und Geltung”, in: Law and Society Review 28 (1997).

17.    Barbara Fultner, “Intelligibility and Conflict Resolution in the Lifeworld”, in: Continental Philosophy Review 34 (2001).

18.    Hans. Klaus Keul, “Subjectivity and Intersubjectivity: Remarks on the Concept of Freedom in Kant and Habermas”, in: The Journal of Value Inquiry 36 (2002).

19.    Marianna Papastephanou, “On Language, Meaning, and Validity: Philosophy of Education and the Universal Pragmatics of Habermas”, in: Interchange, Vol. 35/1 (2004).

20.    J. Dodd, “The Problem of the Lifeworld”, in: Crisis and Reflection, Vol. 174 (2005).

Killing and Harmonic Society

The bullets are pushed out of the guns again, just like that in Beijing 16 years ago. The angry villagers crowded in order to express the different opinions in the land problem. Maybe they were too angry to control themselves, and therefore they were accused of the unrest, as that in Beijing 16 years ago. Please don’t take it as the copy of blooding 16 years ago. It was not harmonic society then and no one wanted to construct it. It is, however, socialism harmonic society now. Even if not, the leader of our great and right leading party and socialism country call on for it highly. So, in spite of the same of blooding, now and then are much different.

But the question is that does the harmonic society means blooding, or what is the harmonic society? We should analyze the purpose of bringing out of this concept. Now, China is in a great period. Our economy made a considerable success in the last 20 years. But now, the social problems appear anywhere and anytime. Our political system has no substantial changes in contrast with the economic system and ideal system of civil society. Many conflicts cannot be solved properly whereas more and more conflicts burst out. Therefore, the tasks of us are much hard. Under this background, the leader brings out the concept. Maybe, he takes it just only as a concept. Yet of course, perhaps not.

Regardless of it, in my opinion the harmonic society is a result of good ruling by a good government. If a government wants to use it to press the different opinion or make the urging conflicts disappear just as a tool but not an end, the so-called harmonic society is only a beautiful dream of the fools which can never come true.

The harmonic society is also an idea of the governors. They must construct harmonic society for the sake of harmony, but not of their private benefits. But who can? The only outlet is the reform of political system. Only democracy can save China.

Back to the shooting, the army faces up to the people without the guns. Even if they are so evil and should be repressed, isn’t there any other method to fight with them peacefully? When we talk about blooding in Beijing 16 years ago, we can say in that time we have no experiences of it and shooting is the only choice. But can we say it now? Why cannot we use the gas or water?

Fortunately, the leader of the official in this event was arrested. It is the only difference between now and 16-year-ago. Maybe it is a hope of harmonic society. Is it true? It is hard to say.

When we have read the books of American Constitutionalism, we were moved by the great institutional construction which are and will be never seen in our country. Separation of Powers is so charming that we are dying to get it. Separation of Powers means that the judicial branch must be independent from other branches of powers. And then, which is a political question and which is a legal question must be strictly distinguished. It makes judges and justices apart from the storms of political fights so that they can make a decision more objectively to what the social and individual justice owes. However, once the judges and justices are for the sake of some parties, how can we say that we can protect ourselves by the methods of litigation?

In our country, it is very normal that judges serve just as an official of executive branches or even of our greatest Party! Maybe it is not right in the legal theories but in politics because the legal questions and the political questions are both the same in a country where all the public matters are political matters. It is our sadness and many of us are aware of that we should take our efforts to improve it. The US model is the subject of our study. But when the nominee was pushed out by President Bush, all the glorious figures of US judicial system disappeared in one second. Why? It is said that the nominee, Mr. Alito, is a staunch conservative. Pay more attention to the word 'staunch' which appears in both Economist.com and Nytimes.com! How funny it is! 

Judge Alito maybe believe that the constitution must mean only what its framers intended in the 1780s. So some social reforms in his eyes can be the danger of the constitutionalism. So Bush nominating him to the Supreme Court is criticized by the left who accuse Bush only to consider the ideology. The former nominee Ms Miers, another conservative, withdrew for this reason. But when the left say the word Ideology, what is their ideology? When they vote for a nominee, how much of capability do they consider? Maybe, when they take office of White House, the right might accuse them in the same reason!

So the justice confirmation inverts into a political fight between the left and the right, the Democrats and the Republicans, Donkey and Elephant. The judicial matters become political matters even in the US, the homeland of Judicial Independence. How can we justify our works to study the US constitutionalism? Where can we go? How can we go?

Maybe the right thing can be only found in politics.