The Universal Element In Habermas's Theory Of Legitimacy Of Law

"Procedural universalism", namely,"prudential universalism"is the core of Jürgen Habermas's discourse theory of law and democracy. From the point of the theory of the communicative action, Habermas transforms the instrumental reason into the communicative reason,and turns the normative claims of the reason into the universal procedural presuppositions of communication and discourse between subjects. By way of this, Habermas interprets the normative ideals in the modern tradition of the west societies procedurally, that is, converts them into the procedural presuppositions under which citizens take up political and legal practice through the use of reason autonomously in the public sphere in the civil society. And Habermas attributes the legitimacy of law in the modern society to the free communication in the public sphere in the civil society. Finally, Habermas perseveres with the universal normative ideals in the tradition of the rule of law since the Enlightenment. In the studies on Habermas's discourse theory of law and constitutional state, this special contribution has been paid attention to. However,"procedural universalism", namely, the core of the contribution has barely been studied from the development of Habermas's own theory thoroughly. And taking up this study is what this article attempts to do.The article is mainly composed of four parts.In chapter one, the article introduces simply the arrangements of demonstration framework and questions that this article intends to discuss and answer. The central questions in the article are: in the development of Habermas's theory, where does the"procedural universalism"as the central part of his legal and political philosophy stem ? How does Habermas establish it? And how does Habermas apply it to his theory of the legitimacy of law? This article thinks that this kind of universalism originates from Habermas's reconstruction of historical materialism. By way of application of this kind of universalism to the theories of the communicative action and discourse ethics, Habermas transforms the instrumental reason into the communicative reason, and turns the normative claims of the reason into the universal procedural presuppositions of communication and discourse between subjects. In this way, Habermas interprets the ideals of the rule of law into the universal procedural presuppositions of free communication in the public sphere in the civil society, attributes the legitimacy of the law in the modern society to them, and applies the"procedural universalism"to the theory of the legitimacy of law.In chapter two, the article looks into the origination of the universal element in Habermas's theory of legitimacy of law. The article thinks that the universal element in Habermas's theory of the legitimacy of law, that is,"procedural universalism", originates from Habermas's reconstruction of historical materialism. In the first place, the article points out the three reasons of reconstruction of historical materialism. Firstly, there are non-reflective phenomena of historical objectivism in the tradition of Marxism; secondly, the normative basis of the social theory of Marxism is not explicit; thirdly, the significance of moral norms in the social evolution has been neglected in the historical materialism in the tradition of Marxism. Subsequently, the article analyzes the basis of Habermas's reconstruction of historical materialism, the distinction between labor and interaction in the young Hegel's theory. And then the article expounds Habermas's reconstruction of historical materialism. Referring to the theory of development of moral consciousness, Habermas points out the stages of the development of individual moral consciousness through the study of the stages of the development of individual competence of interaction. Habermas thinks that in the post-conventional level of individual moral consciousness, the universal moral consciousness is formed in the structure of individual moral consciousness, and the individuals judge the validity of norms according to the universal principle. This kind of universal moral consciousness is the potential resource for the social evolution. Habermas points out further that it is necessary to distinguish the logical scope of the social evolution and the historical conditions that make the social evolution happen really, and the logical scope of the social evolution is determined by the structure of individual moral consciousness, the structure of the communicative action. The universal structure of the communicative action provides the potential resource dealing with the crisis in the social evolution, and makes the social evolution happen really along with the social conditions of the time and the space. As a result of this, Habermas establishes the position of"prudential universalism". Then Habermas rebuilds the basic categories of historical materialism critically. Lastly, Habermas studies the crisis of legitimacy in the late capitalism, and puts forward the reconstructive concept of legitimacy for preparations for his later theory of the legitimacy of law through the application of this kind of universalism.In chapter three, the article simply discusses the application of this kind of universalism to the theories of the communicative action and discourse ethics. The research of the application of this kind of universalism to the theory of the communicative action indicates that there is still the normative potential of the reason confronting with the achievement of the instrumental rationality, and it is changed into the rational claims of the procedure of the communication between subjects. Thus, Habermas transforms"Procedural universalism"into"prudential universalism". The research of the application of"prudential universalism"to the theory of the discourse ethics indicates that the normative claims of the reason have been switched into the procedural presuppositions of communication and discourse between subjects, and the discourse principle as the moral basis of Habermas's theory of law and democracy has been elicited.In chapter four, the article investigates the application of"prudential universalism"to Habermas's theory of legitimacy of law. Habermas defines the law in the modern society as the hinge between system and lifeworld. On the one hand, law belongs to the societal component of the lifeworld and expresses the normative claims of the communication between the subjects in the lifeworld; on the other hand, law is the institutional form of the independent operation of the economic and administrative sub-systems, and organizes the social operation of market economy and administration. Therefore, law as one kind of coercive social facts releases the wide scope of purposive-rational action through the institutional form and assures its average obedience via sanction. Nevertheless , at the same time, law must offer the reasons for its normative validity, and obtains the respect and recognition of its addressees. The investigations of Kantian theory of human rights and Rousseauian theory of popular sovereignty show that from the perspective of Habermas's theory of discourse, both human rights and popular sovereignty are not antagonistic, but result from the procedural presuppositions of legitimate law. Consequently, universal moral infiltrates the normative ideal of the rule of law through the legal form, and incarnates itself in the democratic principle, the system of rights, from which the legitimate law stems. By way of the procedural model of democracy which comes from the critique and synthesis of the democratic models of liberalism and republicanism, Habermas attempts to get through the paradigms of bourgeois formal law and material law of welfare state, and brings forward the procedural paradigm of law under which citizens communicate freely in the public sphere in the civil society and reach some special kind of understanding about the system of universal rights prescribed by the constitution. Finally, the legitimate law comes into being, the unfinished ideals of the rule of law come true, and the legitimation crisis in the late capitalist society diagnosed in Habermas's early theories and the colonization of lifeworld will be overcome.