Hauke Brunkhorst’s Critical Theory of Legal Revolutions

Abstract

This article sets out a critical response to the recent work of Hauke Brunkhorst. In particular, it raises questions about the theory construction underlying this work, notably the elements of Brunkhorst's theory indebted to historical materialism and systems theory.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. Previously, this was a matter of importance for lawyers and historians, who were interested in medieval Europe. Harold Berman had already articulated the significance of this caesura for modern social history. Hauke Brunkhorst has expanded this perspective still further by discussing the moment in which 'Christian Europe' entered the stage of social modernity as primary evidence to support a more far-reaching theory. From this perspective, important innovations such as the emergence of the modern state system, the differentiation of a market society from the political context, the constitutional revolutions of the 18th and 19th centuries and the rise of

Critical theory and reconstruction: On Hauke Brunkhorst’s Critical Theory of Legal Revolutions

“…This leads Habermas to suggest a model of social evolution that assumes a 'two-level learning process'. 52 It also leads -as will be argued in the conclusion -to political conditions being diagnosed in ways that are crucially different when it comes to critical theory's 'concern for reasonable conditions of life'.…”

“…For Habermas, society ultimately remains a normatively integrated entity, a collection of 'systemically stabilized networks of action and communication among members of socially integrated groups who are embedded in the context of particular but overlapping lifeworlds and capable both of conflict and of cooperation'. 47 This takes us on to the second key element in the discourse-theoretical concept of society: the dynamics which shapes social struggles for recognition and on which the continued existence of a society depends. Societies safeguard their existence via an institutional complex which uses a system of deterrence and rewards to organize the intra-societal resolution of conflict and the collective pursuit of objectives (systemic stabilization).…”

“…To illustrate this dialectic, Brunkhorst offers an impressive and detailed account of the development of modern law and, in the process, opts for an innovative theoretical approach, analysing social evolution from the dual perspective of systems and discourse theory. This dual focus has prompted objections from systems 1 and discourse 2 theoreticians alike. Chris Thornhill has argued that Brunkhorst's account is not properly systems-theoretic, in that it incorporates a 'critical idealist' perspective; Jürgen Habermas, by contrast, objects that Brunkhorst's account ultimately rests on the notion of society as a self-regulating system of communication and therefore cannot capture societal development in its guise of learning process.…”