Discourse theory of law in times of populism

Date01 September 2019
Published date01 September 2019
Discourse theory of law in times of populism
Christian Marxsen*
Jürgen Habermas's discourse theory of law has shaped debates on what we consider to be legiti-
mate law. This contribution will firstly identify the Zeitgeist in which discourse theory emerged. Sec-
ondly, it points out the emancipatory potential of law that discourse theory has helped us to
understand, both on a domestic and a transnational level. Thirdly, the paper turns to discuss two
recent challenges for the discourse theory of law, namely (a) the realities of social power that under-
mine and contradict its promises, and (b) the rise of populism, which places the core normative
assumptions of discourse theory in doubt.
In the 1950s, Habermas opened a remarkable theoretical avenue, and much of his worldwide success may be attrib-
uted to the fact that he was able to provide the theoretical expression of an emerging Zeitgeist. Habermas's theory
combined three important strands. On one level, his theory was very much in line with a commonly held perception
that dominated much of political and social theory at that time. Thinkers with completely diverse worldviews, such
as Martin Heidegger, Helmut Schelsky, Günther Anders, Theodor W. Adorno and Max Horkheimer expressed, in spe-
cific ways, the view that modern society was shaped and dominated by technology and industrial imperatives.
Habermas too shared this perception, and his theory of societybuilt around the concepts of lifeworld(Lebenswelt)
and system(System)used the concept of the system to provide a theoretical framework to understand the charac-
ter and effects of a central feature of modern societies: systemic integration.
A second important strand was the critical drive of his theory. Technocratic views on society, for example those
elaborated by Helmut Schelsky, regarded the dominance of technology and its power to shape the individual as a
potentially deplorable but unchangeable characteristic of modernity.
Habermas, by contrast, followed the tradition
of critical theory. His theory has always been normative, developed to provide the foundation for a critique that
could engender an eventual change of society.
However, and this is the third strand, Habermas did not follow the negativist and defeatist approach of
Horkheimer and Adorno, but rather articulated and took seriously the intuitionthat something affirmative could
*Max-Planck-Institute for Comparative Public Law and International Law, Heidelberg, Germany (christian.marxsen@mail.com).
Helmut Schelsky, Der Mensch in der wissenschaftlichen Zivilisation (Springer, 1961).
Received: 17 August 2019 Revised: 18 September 2019 Accepted: 18 September 2019
DOI: 10.1111/eulj.12343
This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and
reproduction in any medium, provided the original work is properly cited.
© 2019 The Author. European Law Journal published by John Wiley & Sons Ltd
480 Eur Law J. 2019;25:480486.wileyonlinelibrary.com/journal/eulj

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