Saturday, December 27, 2014

Critical Theory of Legal Revolutions

The current issue of "Social & Legal Studies" (December 2014) features articles on the constitutional theory of Hauke Brunkhorst and his book "Critical Theory of Legal Revolutions" (Bloomsbury Academic, 2014). [Preview of the book here.]

* "New Bearings in the Sociology of Law" [pdf] - Chris Thornhill and Emilios Christodoulidis

* "Legal Revolutions and the Sociology of Law" [abstract] - Chris Thornhill

* "World State: Brunkhorst’s ‘Cosmopolitan State’ and Varieties of Differentiation" [abstract] - Mathias Albert

* "Hauke Brunkhorst’s Critical Theory of Legal Revolutions: Some Comments on Theory Construction" [abstract] - Jürgen Habermas

* "Hauke Brunkhorst: Reflections on the Idea of Normative Progress" [abstract] - Robert Fine

* "The Cunning of Law: Remarks on Brunkhorst’s Critical Theory of Legal Revolutions" [abstract] - Cristina Lafont

* "Reply to Critics" [abstract] - Hauke Brunkhorst

Excerpts from Jürgen Habermas's article:

From the perspective of social theory, the great theoretical achievement of this pathbreaking investigation lies in the fact that it draws attention to the importance of the "papal revolution" for social evolution. [.....] The papal revolution, initiated by Gregory VII, serves Brunkhorst as the classical example of an event, which can be understood as exploiting, revitalizing and institutionalizing the transgressing egalitarian and universalistic ideas of justice contained in the living tradition of the monastic ethos. The conception of "freedom of association" formed the normative core of the new legal system, which differentiated itself from the religiopolitical complex in the course of the 12th century. The legal figure of the self-administering corporation marked the beginning of the functional differentiation of a hierarchical society, which had hitherto found its culminating point in the figure of the political ruler. As an unintented consequence of that medieval transformation, the secular state developed in the course of subsequent centuries. Following this dialectical pattern, Brunkhorst construes the Protestant Reformation and the emergence of the constitutional state as relevant stages in the evolution of law. [.....]

The theoretical appropriation of the results of legal and historical research raises questions, which I leave to the experts. In the following, I will limit myself - proceeding from a fundamental agreement with the intention and design of this fascination sketch - to a discussion of certain aspects of its theoretical construction. Above all, I will briefly deal with five questions:

1: Does the linear arrangement of the subsequent functional differentiation of the legal, the political, the economic and the educational system not draw an oversimplified (and, with regard to the legal system, somewhat misleading) picture of the thresholds, which punctuate the course of cultural and social modernization of Western societies?
2: How can we explain the dynamics of those transgressing normative ideas, which gave rise to the papal revolution, which inspired all subsequent socioevolutionary bursts, and which cultimated in creating the "Kantian mindset"? This mindset is supposed to provide a somewhat mysterious potential which inspires social evolution from the outset?
3: Does the fact that law is embedded in the context of world views mean that we have to see the pacemaker function of legal innovations as dependent on the evolution of world views? Does this mean that we need to see the evolutionary learning mechanism as located at a deeper level in society?
4: If we ascribe greater weight to the critical role of the development of world views, what is the actual importance of the ambivalent description of "post-metaphysical" thinking for a diagnosis of modern society?
5: What is the appropriate framework for a theory of social evolution, which attaches weight to the interplay between normative learning and systemic adaption?"

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