of Modern Law
HABERMAS’S METHOD OF RECONSTRUCTION
The premise of Habermas’s analysis of modern law is the social condition he has described as the “rationalization of the lifeworld.” Through this process of rationalization, Habermas has argued, the cultural tradition has been largely secularized and has lost much of its power to prescribe in advance the division of labor and social roles. Action must be coordinated less through an unproblematic background consensus and more through the achievements of participants themselves. Interest positions are more sharply differentiated, and the possibility of dissensus and conflict accordingly has increased. Communicative action, Habermas has said, offers one mechanism for coordinating action and integrating society. But attempts to secure communicative agreement are burdensome and risky, Habermas has maintained, and, further, modern societies are characterized by the development of spheres of strategic (or “media-steered”) interaction. Accordingly, communicative agreement cannot be the only mechanism by which action is coordinated and modern societies integrated.
Modern law addresses these difficulties. On one hand, law enforces compliance by strategic actors (and those otherwise uncommitted to the law’s normative claims) through sanctions. On the other hand, if a legal order is to provide a stable basis for social integration, it must be accepted as generally legitimate. According to Habermas, modern law is characterized by these two aspects: its steering of actors’ choices through sanctions and its claim to legitimacy. Both are essential. Law, on Habermas’s anal