Communicative model of J. Habermas in legal science

Abstract

In this article, the author proposes an analysis of the German philosopher Jürgen Habermas’ communicational model in terms of its application to the legal sciences. Habermas succeeded in specifying the significant aspects of a normative science and his model can help legal scholars in reflecting on the processes inherent in the justification and evaluation of any legal system worth to be called like this. In the first place, the author analyzes the communicative model by emphasizing the aspects relevant to a legal science model. The author characterizes the communicative model as established on the ideal of intersubjectivity. Thus, the traditional figure of a subject of knowledge in relation to an object of knowledge is eliminated in favor of the intersubjective relation. This model puts intersubjective interaction into the scientific framework within which the results of the social action can be analyzed. The communicative model makes us considering law in the light of rationality that can be mobilized to articulate legal requirements. Then the author examines the concepts of rationality and methodology. It must be emphasized that Habermas’ communicative model does not conceive the issue of reason and rationality according to the perspective inherited from the Enlightenment, that is to say, as establishing an absolute reason in relation to which we must behave in a deductive or inductive way. On the contrary, Habermas proposes to conceive the rationality through relation to the world implied in performative attitudes. The author concludes by proposing that the communicative model make it possible to approach a procedural concept. This concept replaces the question of the nature of law (and, thus, a question of the presumed substance of law) with the question relating to «what is required by law». In other words, the weight of the meaning of law is shifted towards the actualization of intersubjective relations. Therefore, law represents a collective choice, or rather a social choice, based on a discourse between all the subjects concerned.

Keywords:

philosophy of law, general theory of law, legal sciences, Jürgen Habermas, Habermas and law, communicative theory of law