Cardozo Law Review
Abstract
This reflection explores the manner in which Jurgen Habermas's Between Facts and Norms establishes a relationship between law (or legal procedures) and an idealized conception of rational practical discourse. Part I of this Article spells out a problem that arises if one subordinates law to such idealizations of practical reason; here I will argue that the subordination of law to morality is part of a larger problem that one does not escape simply by analyzing law in the broader terms of discursive justification in general. Part II pursues further the question of whether Habermas's legal theory escapes this difficulty, turning next to his account of the democratic institutionalization of discourse and its relation to the legal form as a system of rights. Part III responds to the more subtle subordination that persists in Habermas's account of rights and closes by suggesting that legitimate decision making involves not only discourse but a form of procedural fairness that Habermas's discourse-theoretic analysis tends to neglect.
Keywords
Politics (General), Hermeneutics, Law and Society, Sociology, Social Studies
Disciplines
Law | Law and Society | Sociology
Recommended Citation
William Rehg,
Against Subordination: Morality, Discourse, and Decision in the Legal Theory of Jurgen Habermas,
17
Cardozo L. Rev.
1147
(1996).
Available at:
https://larc.cardozo.yu.edu/clr/vol17/iss4/17