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Jürgen Habermas and Carl Schmitt in the Paradigm of Modernity for a Critique of the Modern Law

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Jürgen Habermas and Carl Schmitt in the Paradigm of Modernity for a Critique of the Modern Law UNIVERSIDADE DE BRASÍLIA – FACULDADE DE DIREITO PROGRAMA DE PÓS-GRADUAÇÃO EM DIREITO – DOUTORADO ÁREA DE CONCENTRAÇÃO: CONSTITUIÇÃO E DEMOCRACIA Jürgen Habermas and Carl Schmitt in the paradigm of modernity For a critique of the modern law Orientador: Prof. Dr. Miroslav Milović Vanja Grujić Brasília, Setembro 2017 Dedicatória Gostaria de expressar a minha sincera gratidão à Universidade Nacional de Brasília e à Faculdade de Direito por me dar a honra e a oportunidade para defender a minha tese aqui. Também queria expressar minha apreciação ao meu professor Prof. Dr. Miroslav Milović. Você tem sido um inspirador mentor para mim. Gostaria de agradecer-lhe por encorajar minha pesquisa e por me permitir crescer na esfera acadêmica. Gostaria também de agradecer aos meus membros da comissão, a professora Rochelle Cysne Frota D'Abreu, ao professor Marcelo da Costa Pinto Neves, ao professor Paulo César Nascimento, e ao professor Juliano Zaiden Benvindo por servir como membros do meu comitê, mesmo em dificuldades. Além disso, gostaria de expressar o agradecimento aos funcionários da secretaria de pós-graduação da Faculdade de Direito por me ajudar sempre que necessário. Também, gostaria de agradecer a CAPES (Coordenação de Aperfeiçoamento de Pessoal de Nível Superior) para o financiamento do meu doutorado no Brasil, e para a oportunidade de fazer parte do programa doutorado sanduíche no exterior. Sem essas bolsas, meus estudos de doutorado não seriam possíveis. Sincera gratidão a todos os colegas e professores da Faculdade de Direito em Brasília. Ouvir suas ideias e comentários foi uma experiência incrível e aprendi muito com vocês. Por último, mas não menos importante, agradeço aos professores e colegas da ZERP (Zentrum für Europäische Rechtspolitik der Universität Bremen) por seus frutíferos comentários, palavras de encorajamento e amizade que certamente deixaram uma marca importante no meu trabalho. 2 Abstract In the centre of this work is the possibility to think and criticize modernity and modern law. In its background stands the history of The Socialist Federal Republic of Yugoslavia, where the violence and exclusion allow us to grasp clearly the loss of particular reason. With the work of Hegel the word modern is put in the focus, while oeuvre of Jürgen Habermas brings another goal and possibility for the modern world – the intersubjectivity. This work follows Habermas’s arguments and it is on the ground of their shortcoming where the critique of modernity arises. The world is social, but can the modern world grasp the intersubjective nature of our societies? I chose to frame the critique of Habermas’s project around the concept of modern law using the theory of Carl Schmitt, who challenges the concepts of liberal democracy, legitimacy, and legality, leaving the possibility to think an alternative to the mass democracies, like the agonistic model of Chantal Mouffe. Key words: modernity, modern law, critique, Habermas, Schmitt, Yugoslavia. Resumo No centro deste trabalho é a possibilidade de pensar e criticar a modernidade e o direito moderno. Em seu fundo está a História da República Federativa Socialista da Jugoslávia, onde a violência e a exclusão nos permitem compreender claramente a perda de uma racionalidade particular. Com o trabalho de Hegel, o moderno é colocado em foco, enquanto a obra de Jürgen Habermas traz outro objetivo e outra possibilidade para o mundo moderno - a intersubjetividade. Seguindo os argumentos de Habermas chegamos até o mundo, que é social. Porém, a pergunta que surge é se esse mundo moderno pode compreender a natureza intersubjetiva de nossas sociedades. Eu escolhi enquadrar a crítica do projeto de Habermas em torno do conceito de lei moderna usando a teoria de Carl Schmitt, que desafia os conceitos de democracia liberal, legitimidade e legalidade, deixando a possibilidade de pensar uma alternativa às democracias de massa, como o modelo agonista de Chantal Mouffe. Palavras-chave: modernidade, direito moderno, crítica, Habermas, Schmitt, Jugoslávia. 3 Table of Contents Introduction ............................................................................................................................................ 9 Chapter I ............................................................................................................................................... 17 1.1 Hegel – a platonic realist and absolute idealist .......................................................................... 17 1.2 Main claims about spirit .............................................................................................................. 20 1.2.1 Spirit as a social labor ............................................................................................................... 21 1.2.2 Dialectics of spirit as dialectics of freedom ............................................................................. 24 1.2.3 Freedom as a chance for particular to become universal ....................................................... 26 1.2.4 Truth and freedom ................................................................................................................... 27 1.2.5 Geist in the world history ......................................................................................................... 29 1.3 History as a dialectics of tragedy .................................................................................................... 31 1.3.2 Aesthetic before and after philosophy .................................................................................... 32 1.3.3 Hegel’s tragedy in the focus of his political-legal theory ......................................................... 36 1.4 Dialectical process of the modern state ......................................................................................... 39 1.4.1 The inner-dialectic ................................................................................................................... 40 1.4.2 The external dialectic ............................................................................................................... 42 1.5 The Great Revolution and the rising change in the world .............................................................. 43 1.5.1 About the science of right ........................................................................................................ 46 1.5.2 The French Revolution and the reason .................................................................................... 48 1.5.3 Hegel’s modern world and its limits ........................................................................................ 53 1.5.4 In the cage of state and history ............................................................................................... 55 1.6 Conclusion to the chapter ............................................................................................................... 58 Chapter II .............................................................................................................................................. 61 2.1 Introduction to the chapter ............................................................................................................ 61 2.2 The rise of the critical mind ............................................................................................................ 64 2.2.1 From the freedom of bourgeois public sphere to the instrumentalized liberal public sphere 64 2.2.2 Towards the critique of technique – protest as the expression of democracy ....................... 67 2.2.3 Origins of Habermas’s critical arguments ................................................................................ 69 2.2.4 Marcuse’s one-dimensional modern world ............................................................................. 71 2.2.5 Legitimation from ‘above’ and from ‘bottom’ ......................................................................... 73 2.3 Towards the communicative reason ............................................................................................... 76 Social systems and their crises ......................................................................................................... 77 2.3.1 The specific nature of communicative action .......................................................................... 78 2.3.2 Work vs. interaction ................................................................................................................. 79 2.3.4 Two types of action .................................................................................................................. 81 2.3.5 Naïve and reflective levels of the speech ................................................................................ 83 4 2.4 Definitions of the lifeworld and System.......................................................................................... 85 2.4.1 Development according to System and social integration ...................................................... 85 2.4.2 Durkheim’s two-level social development............................................................................... 88 2.4.3 The Lifeworld ........................................................................................................................... 91 2.4.4 Different possibilities for the dual-model society.................................................................... 93 2.5 Legal force of a social medium – towards the discourse theory of law ........................................
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