System and Lifeworld in Habermas\u27s Theory of Law

Jürgen Habermas\u27s recent work on law and democracy divides into two parts. With his discourse theory of law and democracy, Habermas seeks to explain the conditions under which modern constitutional legal and political orders may claim legitimacy. Here Habermas\u27s method is primarily philosophical and legal-theoretical. The second part of the project – the part on which this article focuses – develops what Habermas calls his communication theory of society. Here Habermas seeks to translate the normative conclusions of his discourse theory into a substantive social-theoretical model. The idea is to determine whether the ambitious normative theory of democracy is plausible under contemporary conditions of social complexity. Habermas\u27s presentation of the communication theory of society is difficult to understand, partly because he invokes, without much explanation, the two-level theory of society that he developed in his work of the 1970s and 1980s. I return to that work to excavate the basic concepts of communicative action, system, and lifeworld. I discuss the model of society developed in that earlier body of work – a model of interchange between the normatively rich lifeworld and the money- and power-driven economic and administrative systems. My account is critical. Each distinction on which Habermas relies to construct the interchange model is drawn too sharply, and the resulting model makes the normative ideal Habermas consistently has defended – radical democracy – literally inconceivable. The more recent work on law professes continued loyalty to the system/lifeworld conception of society. But at the same time, it develops a different model – the model of the circulation of power – that is designed to show the possibilities for, and resistances, to radical democracy. I argue that the new model is irreconcilable with Habermas\u27s earlier and unretracted conceptions of system and system/lifeworld interchange. The unacknowledged amendments are significant improvements, I argue, but one effect is to leave the notion of social systems unclearly theorized. I suggest in the final part of the article that Habermas could shore up his system conception by selectively and critically appropriating insights from a more recent version of social systems theory – the autopoietic theory of Habermas\u27s longtime theoretical sparring partner, Niklas Luhmann