Cardozo Law Review
Abstract
Among legal scholars expressions such as "social ideal" or "social model," and even "social vision," have become generally accepted ways of referring to the images of society inscribed in a legal system. Such expressions refer to those implicit images of one's own society that guide the contemporary practices of making and applying law. These images or paradigms provide the background for an interpretation of the system of basic rights. In other words, they orient the project of realizing an association of free and equal citizens. A paradigm is discerned primarily in paramount judicial decisions, and it is usually equated with the court's implicit image of society. For example, Friedrich Kiibler speaks of the "social construction of reality" that underlies judgments of facts in legal discourse, that is, how factual courses of events and the functioning of social systems are described and evaluated by judges. As early as 1931, Otto Kahn-Freund examined the "social ideal" of the Supreme Labor Court (Reichsarbeitsgericht) during the Weimar Period from the perspective of ideology critique. Two decades later Franz Wieacker introduced the equivalent concept of the "social model" for descriptive purposes when he deciphered the liberal paradigm of law in the classical statute books of private law. In elaborating the paradigm of bourgeois formal law, Wieacker's famous study simultaneously clarified the background in contrast to which the "materialization" of law during the last one hundred years could emerge. This social transformation of law was initially thought of as a process in which a new instrumental understanding of law, one related to social-welfare conceptions of justice, was superimposed on the liberal model of law, which it suppressed and finally supplanted. German jurisprudence has perceived this process, which dissolved the classical unity and systematic organization of the legal order, as a "crisis of law." In the first part of this Article, I will introduce the two paradigms of formal and materialized law in their standard versions. The second part examines the recent criticism of welfare-state paternalism in order to introduce a third paradigm of law-the proceduralist paradigm. The proceduralist paradigm is more appropriate for complex societies than the two paradigms that have competed up to now. Finally, this Article uses the example of feminist legal theory to elucidate an important aspect of this new paradigm-the internal connection between the private or social autonomy of the individual legal person and the public or political autonomy of citizens in democratic opinion- and will-formation.
Keywords
Philosophy, Human Rights Law, Constitutions, Government (General)
Disciplines
Human Rights Law | Law
Recommended Citation
Jürgen Habermas,
Paradigms of Law,
17
Cardozo L. Rev.
771
(1996).
Available at:
https://larc.cardozo.yu.edu/clr/vol17/iss4/3