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Social Construction and System in Legal Theory: A Response to Professor Preuss

Published online by Cambridge University Press:  06 March 2019

Karl E. Klare

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Preuss' paper significantly advances the critical theory of law. As a side benefit, he provides English-speakers with an excellent introduction to the work of two leading West German participants in the debate, Jürgen Habermas and Gunther Teubner. Preuss' paper reveals considerable common ground between critical legal theorists in Germany and the United States, but also important differences of perspective and concern. I suspect that many American legal critics will think that Preuss' criticisms of Habermas and Teubner do not go far enough, that his criticisms raise a fundamental challenge to the current emphasis on structure and system in the German debate. In any event, Preuss' paper suggests the usefulness of a greater German “reception” of the American emphasis on agency and social construction. No doubt American legal criticism would likewise be enriched by entering into a more sustained dialogue with structuralist and systems theory.

Type
Articles
Information
German Law Journal , Volume 12 , Issue 1: Critical Legal Thought: An American-German Debate—Republication [with a new Introduction] Twenty-Five Years Later — , 01 January 2011 , pp. 516 - 524
Copyright
Copyright © 2011 by German Law Journal GbR 

References

1 American critical legal studies is often criticized for moral relativism. This criticism is mistaken. An historicist orientation in social theory does not imply moral relativism and can be consistent with a commitment to transhistorical values of democracy, equality, and self-determination, at least at some general level. Likewise, the belief of some legal critics that the long run historical significance of the emergence of autonomous legal orders has been to serve democratic values does not require a theory of the inherent or intrinsic meaning of legality.Google Scholar

2 Habermas, Jürgen, Law as Medium and Law as Institution, in Dilemmas of Law in the Welfare State, (Teubner, Gunther ed., 1986).Google Scholar

3 Id., 212. Google Scholar

4 Habermas, supra, 213.Google Scholar

5 Harbermas, supra, 214.Google Scholar

6 Habermas, supra, 213.Google Scholar

7 Habermas, supra, 214-215.Google Scholar

8 This summary of Habermas's views relies on Baxter, 1987. (Hugh Baxter, Syem and Life-world in Habermas's Theory of Communicative Action”, 16 Theory and Society, 39-86, at 72 (1987)), in addition to Preuss. Baxter's excellent paper criticizes the system/lifeworld distinction in a manner parallel to Preuss’ criticisms of the law as medium/law as institution distinction. Baxter's plea for the mutual interdependence of systems and interpretive theory parallels the argument with German legal criticism advanced here.Google Scholar

9 That economic relations are structured by law was a centerpiece of Legal Realist theory. For an extension of the argument to family relationships, see: Frances Olsen, The Myth of State Intervention in the Family, 18 University of Michigan Journal of Law Reform, 835-64 (1985).Google Scholar

10 Baxter, supra, 72.Google Scholar

11 Legal discourse has been variously conceived by American legal critics as a “field” of action, a “medium in which one pursues a project” (Duncan Kennedy, Freedom and Constraint in Adjudication: A Critical Phenomenology, 36 Journal of Legal Education, 518-62 (1986)); an invitation to “good faith conversation” (Joseph Singer, The Reliance Interest in Property, 40 Stanford Law Review, 611-751 (1988)); or as a “practice” (Karl Klare, Law-Making As Praxis, 40 Telos, 123-35 (Summer, 1979)) Note that Kennedy uses the word “medium” in its ordinary sense (e.g., a sculptor's clay); he is not employing Habermas’ distinctive usage.Google Scholar