Max Weber and Jürgen Habermas: The Sociology and Philosophy of Law During Crises of the State

Abstract

The English-speaking intellectual world has eagerly awaited the translation of Faktizität und Geltung, Jürgen Habermas's magnum opus of legal and state theory, since its German publication in 1992. Anticipation has run particularly high with respect to Habermas's attempts to (1) definitively mediate his influential system-lifeworld thesis of modernity through the institution of law; (2) translate his social-philosophical theory of communicative ethics into the terms of political and legal theory; and, perhaps most ambitiously, (3) overcome the opposition between purely empirical and strictly normative approaches to modern societies, particularly the treatment of law in such analyses. I will argue here that in order fully to understand Habermas's theoretical efforts in Between Facts and Norms one must take into account the legal-sociological framework that he inherits from Max Weber. This is by no means a purely intellectual or cultural inheritance, for Weber's sociology of law played a crucial role in the historical drama that was the collapse of Germany's first effort at liberal and social democracy: the Weimar Republic. It is the ghost of this failure that has haunted virtually all of Habermas's theoretical endeavors, no less Between Facts and Norms - perhaps even especially therein because of the centrality of law to its framework.