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System and Lifeworld in Habermas's Theory of Law Hugh Baxter Boston Univeristy School of Law

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System and Lifeworld in Habermas's Theory of Law Hugh Baxter Boston Univeristy School of Law Boston University School of Law Scholarly Commons at Boston University School of Law Faculty Scholarship 2002 System and Lifeworld in Habermas's Theory of Law Hugh Baxter Boston Univeristy School of Law Follow this and additional works at: https://scholarship.law.bu.edu/faculty_scholarship Part of the Law Commons Recommended Citation Hugh Baxter, System and Lifeworld in Habermas's Theory of Law, 23 Cardozo Law Review 473 (2002). Available at: https://scholarship.law.bu.edu/faculty_scholarship/549 This Article is brought to you for free and open access by Scholarly Commons at Boston University School of Law. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarly Commons at Boston University School of Law. For more information, please contact [email protected]. +(,121/,1( Citation: 23 Cardozo L. Rev. 473 2001-2002 Content downloaded/printed from HeinOnline (http://heinonline.org) Fri Sep 17 10:19:50 2010 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0270-5192 Electronic copy available at: http://ssrn.com/abstract=2670047 SYSTEM AND LIFEWORLD IN HABERMAS'S THEORY OF LAW Hugh Baxter* ABSTRACT JUrgen Habermas'srecent work on law and democracy divides into two parts. With his "discourse theory of law and democracy," Habermas seeks to explain the conditions under which modern constitutional legal and political orders may claim legitimacy. Here Habermas'smethod is primarilyphilosophical and legal-theoretical. The second part of the project-the part on which this article focuses-develops what Habermas calls his "communication theory of society." Here Habermas seeks to "translate" the normative conclusions of his discourse theory into a substantive social- theoretical model. The idea is to determine whether the ambitious normative theory of democracy is plausible under contemporary conditions of social complexity. Habermas's presentation of the "communication theory of society" is difficult to understand, partly because he invokes, without much explanation, the "two-level" theory of society that he developed in his work of the 1970s and 1980s. I return to that work to excavate the basic concepts of "communicative action," "system, " and "lifeworld." I discuss the model of society developed in that earlier body of work-a model of "interchange" between the normatively rich "lifeworld" and the money- and power-driven economic and administrativesystems. My account is critical. Each distinction on which Habermas relies to construct the "interchange" model is drawn too sharply, and the resulting model makes the normative ideal Habermas consistently has defended-radical democracy-literallyinconceivable. The more recent work on law professes continued loyalty to the * Associate Professor, Boston University School of Law. Thanks go to participants in faculty workshops at Northeastern University and Boston University, and to participants at the 2000 meeting of the Working Group on Law, Culture, and the Humanities. Special thanks to David Lyons, Phina Lahar, Manuel Utset, Daniela Caruso, and (most of all) Marina Leslie. HeinOnline -- 23 Cardozo L. Rev. 473 2001-2002 Electronic copy available at: http://ssrn.com/abstract=2670047 474 CARDOZO LAW REVIEW [Vol. 23:2 system./lifeworld conception of society. But at the same time, it develops a different model-the "model of the circulation of power"--that is designed to show the possibilities for, and resistances, to radical democracy. I argue that the new model is irreconcilable with Habermas's earlier and unretracted conceptions of "system" and system/lifeworld "interchange." The unacknowledged amendments are significant improvements, I argue, but one effect is to leave the notion of social "systems" unclearly theorized. I suggest in the final part of the article that Habermas could shore up his "system" conception by selectively and critically appropriatinginsights from a more recent version of social systems theory-the "autopoietic" theory of Habermas's longtime theoreticalsparring partner, Niklas Luhmann. HeinOnline -- 23 Cardozo L. Rev. 474 2001-2002 Electronic copy available at: http://ssrn.com/abstract=2670047 2002] SYSTEM AND LIFE WORLD 475 1. INTRODUCTION: AN OVERVIEW OF HABERMAS'S P R O JE CT ................................................................................... 477 A. The "Reconstructive" Theory of Law and D em ocracy ........................................................................ 482 B. The Communication Theory of Society: System and L ifew orld ........................................................................... 490 II. BASIC CONCEPTS IN HABERMAS'S THEORY OF SOCIETY .... 493 A. Communicative and Strategic Action ............................ 494 1. The Distinction Between Communicative and Strategic A ction .......................................................... 495 2. Communicative Rationality and Discourse ............. 507 B . L ifew orld ........................................................................... 510 1. The "Structural Components" of the Lifeworld ..... 511 2. The Symbolic Reproduction of the Lifeworld ........ 515 3. The Rationalization of the Lifeworld ................. 520 4. The Material Reproduction of the Lifeworld and the Limits of the Lifeworld Perspective ........... 525 C . System ............................................................................... 532 1. Open Systems Theory and Parsons's "l-nterchange Paradigm" ......................... 532 2. "Steering M edia" ....................................................... 537 3. Uncoupling of System and Lifeworld ...................... 545 D. The System/Lifeworld Model in Theory of Com m unicative A ction .................................................... 553 III. SYSTEM, LIFEWORLD, AND HABERMAS'S "COMMUNICATION THEORY OF SOCIETY". .......................... 563 A. The Official Account of "Lifeworld" and "System".... 565 B. The Model of the Circulation of Power ........................ 570 1. The Political System's Center ................................... 572 2. The Political System's Periphery .............................. 575 HeinOnline -- 23 Cardozo L. Rev. 475 2001-2002 CARDOZO LA W REVIEW [Vol. 23:2 3. The Public Sphere and Civil Society ........................ 577 4. The Circulation of Power and the Possibility of D em ocracy .................................................................. 581 C. The Status of the System/Lifeworld Model .................. 585 1. Mapping Center/Periphery Against System/ Lifew or d ..................................................................... 585 2. The Two Models and Interchange Among Social Spheres ......................................................................... 588 3. "System " R evisited .................................................... 591 4. "Lifeworld" Revisited ................................................ 594 IV. AUTOPOIETIc THEORY AND THE REFORMULATION OF HABERMAS'S SOCIAL-THEORETICAL MODEL ..................... 600 HeinOnline -- 23 Cardozo L. Rev. 476 2001-2002 2002] SYSTEM AND LIFE WORLD I. INTRODUCTION: AN OVERVIEW OF HABERMAS'S PROJECT By any standard, Jrgen Habermas has ranked among the very most prominent contemporary European philosophers and social theorists for more than thirty years. Only recently, however, has he gained a significant audience among American legal academics.' One reason for this delayed reception likely has been the notorious difficulty of Habermas's work, which synthesizes a variety of different disciplines and theoretical approaches- including, but not limited to, speech-act theory in the philosophy of language,2 phenomenological sociology,3 sociological systems theory,' the Frankfurt School tradition of critical theory, the works of canonical social theorists (Marx, Weber, Durkheim, Mead, and Parsons),5 pragmatism,6 hermeneutics,7 psychoanalysis,8 1 As an index of his recent prominence: no fewer than three English-language symposia have been organized to consider Habermas's work on law. See Exploring Habermas on Law and Democracy, 76 DEN. U.L. REV. 927 (1999); Habermas on Law and Democracy: Critical Exchanges, 17 CARDOZO L. REV. 767 (1996); Habermas, Modernity and Law, 20 PHIL. & SOC. CRITICISM 1 (1994). 2 See, e.g., Jurgen Habermas, Moral Development and Ego Identity, in COMMUNICATION AND THE EVOLUTION OF SOCIETY 69-94 (Thomas McCarthy trans., 1979) (1974), [hereinafter Moral Development]; Jurgen Habermas, Historical Materialism and the Development of Normative Structures, in COMMUNICATION AND THE EVOLUTION OF SOCIETY, supra, at 95 [hereinafter HistoricalMaterialism]. 3 See JORGEN HABERMAS, 2 THE THEORY OF COMMUNICATIVE ACTION: LIFEWORLD AND SYSTEM: A CRITIQUE OF FUNCTIONALIST REASON 119-35 (Thomas McCarthy trans., 1987) (1981) [hereinafter 2 THEORY OF COMMUNICATIVE ACTION]. 4 Habermas's interest in systems theory began with his debate with the important German sociologist, Niklas Luhmann. See JURGEN HABERMAS & NIKLAS LUHMANN, THEORIE DER GESELLSCHAFT ODER SOZIALTECHNOLOGIE: WAS LEISTET DIE SYSTEMFORSCHUNG (1971). Shortly thereafter, Habermas began to appropriate critically insights from systems theory. See JORGEN
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