Habermas’ Discourse Ethics as the Foundation of Legitimate Laws
Jürgen Habermas’ philosophy is motivated by the desire to formulate a doctrine of action. With this in mind, I briefly explore the theory behind Habermasian discourse ethics and more importantly critically assess the practical realities of applying it to the functioning of the legal system. I use Robert Shelly’s work on the subject as a vehicle for this analysis. I argue that although some moderation may be required when transposing Habermas’ ideas from the abstract, such tempering remains true not only to the core of the theory itself, but also to Habermas’ intentions and understanding of a complex society.
The “Frankfurt School”, as they came to be known, were an eclectic group from a range of disciplines at the forefront of articulating and exploring the disappointment felt when Marx’s message had not inspired the revolution they felt the Western world so desperately needed. They sought to formulate a new form of interdisciplinary theoretical activity, the paradigm of ‘critical theory’ (Finlayson 2005: 2). Significantly, Critical Theory aimed to be just that: a theory which was not only theoretical in its task but practical. The Frankfurt School’s work sought not only to diagnose what was wrong with contemporary society, but aimed also to remedy it (Ibid.: 4). However, Horkheimer and Adorno’s The Dialectic of Enlightenment (first published 1947) was far from a declaration of the potential for such change. For them, as man sought to dominate nature through Enlightenment reason, he also dominated other men and, in turn, himself. Evidently, the first-generation Frankfurt School theorists’ analysis had led to a deep form of pessimism, a belief that things simply could not change.
The work of Jurgen Habermas is best understood as a direct and ongoing response to the despair of the first generation of the Frankfurt School, which he believed found its diagnosis of society in an unwarranted pessimism based on a flaw in analysis (Ibid: 8). His intellectual project returns to original Frankfurt School spirit by revealing the pragmatic intention of creating a doctrine of action. Habermas’ work displays a desire for us to abandon the unproductive negativity of Horkheimer and Adorno and do something. Thi