Habermas: The Discourse Theory of Law and Democracy by Hugh Baxter (review)

Many of the challenges confronting readers of Jürgen Habermas’s legal philosophy stem from the fact that it is a part of a larger project. Furthermore, despite the fact that Habermas’s major contribution to the field, the book Between Facts and Norms (BFN),¹ is first and foremost a work of normative theory, his interest in law originates in a set of essentially socio-theoretic concerns. Habermas comes to the law by way of Weber, not Kant (despite being strongly influenced by both thinkers), and this colours his view in many ways.

Thus, whatever the particular normative debate that he is engaging with, Habermas’s claims are always structured and informed by a set of background theoretical, and sometime architectonic, commitments that arise from his broader social theory. Central to this is his attempt to understand the modernization of society in terms a social rationalization process that he describes as a ‘differentiation of system and lifeworld.’ Unfortunately, Habermas does not always lay out these background considerations quite as plainly as he might. This accounts, in part, for why some of his major claims in legal philosophy, despite being original and thought-provoking, are presented in a way that seems under-argued, or in some cases, frankly mysterious.

The great merit of Hugh Baxter’s book is not just that it assesses Habermas’s legal philosophy against the background of his more general social theory but that it provides a sophisticated assessment of both aspects of Habermas’s program. This is not just a good book on Habermas’s theory of law but also contains the best discussion of Habermas’s theory of system and lifeworld that I have encountered. Thus, despite being written by a law professor and published in a book series aimed at a legal audience, it is to be recommended to anyone with an interest in Habermas’s work, and particularly those seeking a more fine-grained discussion of the system/lifeworld distinction.

From a socio-theoretic perspective, the relationship between Habermas’s theory of law and his analysis of society in terms of system and lifeworld is fairly obvious. Habermas claims that the orderliness of systemically integrated domains of interaction is achieved through the incentives that individual actors confront. The mechanism that supplies these incentives, however, is not itself supported by incentives, but must be, as Habermas puts it, ‘anchored’ in the lifeworld, which is to say, it must be supported by reasons that people accept.

What kind of institution could this be that has one foot in the system, another in the lifeworld? The answer, according to Habermas, is the law. Or more specifically, positive law, in the quasi-Weberian sense of law that is procedurally enacted and bureaucratically imposed. Habermas’s central normative question is how law in this sense could be valid; in other words, how it could not just motivate people to comply but command their allegiance as well.

Baxter’s book begins, as do many books on Habermas, with a one-chapter introduction to Habermas’s broader project, to set the stage for the more detailed discussion to follow. The project in question is, of course, The Theory of Communicative Action (TCA), and it is worth re-emphasizing that none of Habermas’s later work is really intelligible outside an understanding of the major set of ideas that he develops in TCA. This is unfortunate, in a way, because, thanks to its length, TCA is the one book that most casual readers of Habermas seem to want to skip.

It is also a regrettable feature of the secondary literature on Habermas that many of these introductory summaries of Habermas’s thought are extremely unreliable, and in some cases, downright confused. Baxter’s, I am pleased to report, is not. It is clear, accurate, and contains a substantial amount of detail. (Indeed, I have but one quibble: Baxter rightly takes Habermas to task for hyperbole in the way that he draws the system/lifeworld distinction, particularly...