On reconstructive legal and political theory

Abstract

In his recent work Faktizit3t und Geltung, Habermas ( 1992) has presented a massive and wide-ranging theoretical interpretation of the role of law and politics in modern western societies.' This work represents a distinctive approach to legal phenomena and to social reality in general. Habermas himself has used the term 'reconstruction' or 'reconstructive analysis' to identify this approach. In the first part of this essay I identify some basic features of such a mode of social analysis, as I understand it. To locate this way of theorizing both in the general field of social theory and in relation to other forms of social discourse about law, I develop a typology of theoretical approaches to legal phenomena. This should clarify how reconstructive analysis relates to jurisprudential discourse and normative political theory.Reconstructive analysis implies a certain way of treating symbols and meanings and especially certain structural features of symbolic systems and processes within the social world. I describe these features in somewhat more detail in Part II. There I also contrast reconstructive theory with another set of approaches to symbolic structures and processes which today are often labelled 'constructivist'.In Part III we look at some actual examples of reconstructive theorizing in Habermas's latest work. His attempt to reconstruct some basic, legitimating normative principles and structures of modern legal and political orders is outlined. In my discussion I present one substantive objection: Habermas rightly insists on the importance of certain procedural principles or process values, but in doing so he treats the role of more substantive normative elements of modern constitutional orders in an ambiguous way. Part IV adds a methodological objection: the line between the empirical reconstruction of Downloaded from I Different approaches to law As a part of our social world law is both a field of meanings and symbols (norms, principles, interpretations, etc.) and a field of social relations and social activitiesnamely, of all social relations which are framed in legal terms and of all activities which are specifically oriented to law. Law as a sphere of symbols and meanings is enacted, reproduced and changed by those activities. Among the defining features of modern legal systems is what is sometimes called their 'recursive' structure: the fact that the law explicitly provides for authoritative procedures and methods for making binding decisions and interpretations which determine what counts as valid law at any given time.

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