Jürgen Habermas on Juridification - Dictionary of Arguments
Juridification/Habermas: the expression refers in general to the tendency to increase written law in modern societies. We can distinguish between an expansion and a consolidation of the right. (1) Otto Kirchheimer introduced the concept into the discussion during the Weimar Republic and at that time primarily had in mind the institutionalisation of the class conflict (...) under tariff- and labour law.
Habermas: We can roughly distinguish four epochal legal processes: 1. to the bourgeois state, at the time of absolutism, 2. to the constitutional state, in the monarchy in 19th century Germany,
3. To the democratic constitutional state following the French Revolution in Europe and North America. 4. to the social and democratic constitutional state in 20th century Europe.
Ad 1.: The sovereign is exempt from orientation towards individual content or certain state purposes and is defined in terms of instruments, i.e. solely in relation to the means of the legal exercise of bureaucratically organized rule. The means of effectively allocating power becomes the sole purpose.
The self-conception of this epoch has found its most consistent expression in Hobbes' Leviathan.
The further juridification shifts can be understood in such a way that they gradually bring to bear the demands of the market and absolutist rule in a lifeworld that was initially at the disposal of the market. Only in this way can the bourgeois state gain a non-parasitic legitimacy appropriate to the level of modern justification. In the end, the structurally differentiated lifeworld on which modern states depend functionally remains the only source of legitimacy.
Ad 2: This impetus means the constitutional standardization of an authority that until then was limited and bound only by the legal form and bureaucratic means of exercising power. Now citizens as private individuals receive actionable subjective-public rights against a sovereign, in whose decision-making they certainly do not yet participate democratically.
Ad 3: The juridification of the legitimation process becomes established in the form of universal and equal suffrage and the recognition of freedom of organization for political associations and parties.
Ad 4: The development towards a social and democratic constitutional state can be understood as the constitutionalisation of a social power relationship anchored in the class structure. Classical examples are the limitation of working hours, union freedom of association and tariff autonomy, protection against dismissal, social security, etc. Here, too, the balance of power within an area of action that has already been legally constituted is at stake.
However, the freedom-guaranteeing character of the welfare state does not apply to all areas. Thus, from the beginning there is the ambivalence of guaranteeing freedom and deprivation of liberty. (2)
Problem/Habermas: the negative effects (...) do not appear as side effects, they result from the structure of juridification itself. It is now the means of guaranteeing freedom itself that endanger the freedom of the beneficiary. For example, legal claims to monetary income in the event of an insured event represent progress compared to traditional poor welfare. However, this legalisation of life risks demands a remarkable price in the form of restructuring interventions in the lifeworlds of those entitled.
The bureaucratization leads to a de-individualization and to a decrease of partner-like assistance in the private sector.
Dilemma: the welfare state guarantees are intended to serve the goal of integration and nevertheless promote the disintegration of life contexts.
This ambivalence cannot be traced back to a dialectic of law as an institution and law as a medium, because the alternative of guaranteeing and depriving freedom only comes from the perspective of the lifeworld, i.e. only in relation to legal institutions.
1.R.Voigt Verrechtlichung in Staat und Gesellschaft, in: ders (Hrsg.), Verrechtlichung Frankfurt 1980 S. 16.
2.T.Guldimann, M. Rodenstein, U. Rödel, F. Stille, Sozialpolitik als soziale Kontrolle, Frankfurt, 1978._____________Explanation of symbols: Roman numerals indicate the source, arabic numerals indicate the page number. The corresponding books are indicated on the right hand side. ((s)…): Comment by the sender of the contribution. Translations: Dictionary of Arguments The note [Author1]Vs[Author2] or [Author]Vs[term] is an addition from the Dictionary of Arguments. If a German edition is specified, the page numbers refer to this edition.
Der philosophische Diskurs der Moderne Frankfurt 1988
Theorie des kommunikativen Handelns Bd. I Frankfurt/M. 1981
Theorie des kommunikativen Handelns Bd. II Frankfurt/M. 1981