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Reconnaissance, identité et intégration sociale

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Christian Lazzeri
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Soraya Nour

Enjeux politiques et juridiques

Traditional and Critical Theory of Constitution

Giovani Agostini Saavedra

Texte intégral

Le droit au sens juridique est en général tout ce que ceux qui vivent ensemble dans n’importe quelle communauté reconnaissent réciproquement comme norme et règle de ce vivre ensemble.

Ernst Rudolf Bierling

1Constitutional discourse has never been so widespread and more contested than it is today. While the last decade of the twentieth century witnessed a worldwide wave of constitutionalization in many countries, very recently constitutional regimes have been put under stress by the process of globalization. Debates about cosmopolitanism, legal and constitutional pluralism, and new networked patterns of governance which change the nature of political and legal authority in an increasingly globalizing world present a particular challenge to normative political theory. The force of the traditional model of constitutional democracy depends on how it succeeds in making its own conceptual and normative foundations compatible with claims to universal human rights law, transnational justice, cosmopolitan citizenship, and post-sovereign international politics.

  • 1 Margalit Avishai, “Recognizing The Brother And The Other”, in Aristotelian Society Supplementary V (...)

2The proposed paper will discuss the normative assumptions that underlie constitutional democracy. In particular, I seek to illuminate the crucial problem of the link between the concept of recognition and constitutional democracy. As Avishai Margalit has pointed out recognition, in the context of normative social and political theory, is not one problem but a family of problems. Indeed, it is a research program, in which Axel Honneth is an important practitioner.1 Yet, as Honneth himself readily acknowledges, his work is a work-in-progress, and since he has not yet attempted to create a critical theory of constitutional democracy based on recognition, I would like to outline in what follows some proposals that aim to fill in this gap in the recognitional paradigm of critical social theory.

3However, developing a constitutional theory based on recognition is not simply a philosophical exercise disconnected from contemporary political problems. The urgent need for this project can be seen in the fact that constitutional theorists seem to have become indifferent to social problems, even as contemporary theories of recognition and multiculturalism have been pushing constitutional theorists to face the following question: how are we to understand the changing forms of political struggle evinced in western constitutional democracies, in particular the rise of demands for social and political recognition of distinctive group identities?

4In what follows I want to show that the roots of this indifference of constitutional theorists to social problems can be found in certain philosophical convictions which are widely diffused throughout the juridical community. In the first section, I will summarize the form these philosophical convictions take in what I will call a traditional theory of constitution. In the second section, I shall present Axel Honneth’s theory of recognition, especially with regard to what he calls the legal sphere of recognition. Finally, in section three, I will outline the basic features of a critical theory of constitution.

Traditional Theory of Constitution

5One of the main characteristics of traditional constitutional theory is its dualism. It differentiates two disconnected perspectives from which constitution can or should be analyzed: the observer and the participant perspective (Beobachter oder aus der Teilnehmer perspektive). According to the defenders of this theory, one perspective is totally independent from the other, i.e. constitutional phenomenon should be analyzed either from the observer or from the participant perspective. But when this strong dualism is criticized, the answer is always the same: traditional constitutional theorists strongly believe that this is just an analytic division. According to Alexy, these perspectives should be described as follows:

  • 2 “Die Teilnehmerperpektive nimmt ein, wer in einem Rechtssystem an einer Argumentation darüber teil (...)

The participant perspective includes those that take part in an argumentation within a legal system concerning that which is commanded, prohibited and allowed by this legal system, and what it empowers one to do. In the centre of the participant perspective stands the judge. When other participants, like legal scholars, lawyers or citizens interested in the law system, present arguments for or against certain contents of the legal system, in the final analysis they refer to how a judge would have decided, if he wanted to decide correctly. The observer perspective includes those that don’t ask what the correct decision in a given legal system is, but rather how it is in fact decided in that juridical system. (Author’s Translation).2

  • 3 The theses about Dworkin, Alexy and Luhmann I will present in what follows are a brief résumé of a (...)

6In our context, this means that constitutional theorists should decide if they seek to analyze the constitution’s social validity or if they want to analyze the constitution from the normative point of view. It is exactly this dualistic way of comprehending juridical phenomena which characterizes what I have called traditional constitutional theory. The consequences of this way of conceiving a constitution are exemplified in the theories of Dworkin, Alexy and Luhmann.3

  • 4 These theses are developed by Luhmann in lots of his books. See, for instance: Luhmann Niklas, Soz (...)

7The theories of Dworkin and Alexy can be seen as examples of a juridical analysis conducted from the participant point of view, while Luhmann’s theory is an example of a juridical analysis made from the observer point of view. According to Luhmann’s perspective, modern society can be characterized as a society within which all social spheres have been functionalized. In functionally differentiated societies like this, law specializes itself in generating consensual expectations according to its internal code. Thus, the juridical system is comprehended by Luhmann as a closed circle of communication. It bounds itself autopoietically and develops relations to the environment only through observations.4

  • 5 The main work where Luhmann deals with this argument is: Luhmann Niklas, Das Recht der Gesellschaf (...)

8The questions of the legitimacy and validity of law are also comprehended in Luhmann’s theory as accessible only from the internal level of the juridical system: legality produces its own legitimacy, i.e. law differentiates itself as an autonomic system which produces its own law and its own legitimacy. Thus there is no relation of the juridical system to the political sys-tem, or to a democratic process of legislation that takes place in the public sphere.5 The consequences of this theory can be seen through an analysis of the theories of Alexy and Dworkin.

  • 6 The main works where Dworkin deals with this argument are: Talking rights seriously, Cambridge, Ha (...)

9Dworkin supports the notion that law’s applicability and validity are concentrated in the person of the judge. The function of legitimating law (in its dimension of validity), which in a democracy should be the public sphere’s function, is also produced internally by law. Although he develops in Law’s Empire the interesting concept of the virtue of political integrity, which could have made it possible for him to transform his monologic approach to law into an intersubjective and more directly social approach to law, a transformation that would have liberated his judge Hercules from transcendental solitude, political integrity is only used by Dworkin to support the notion that judges should be a kind of a moral value representative for an idealized society. According to Dworkin, the judge can only legitimate his decision insofar as he bases his decisions on monologically reconstructed principles that should reflect the choice made by an imaginary community strongly differentiated from the real social community:6

  • 7 Dworkin Ronald, Law’s Empire, op. cit., p. 168.

My account of political integrity takes the personification much more seriously, as if a political community really were some special kind of entity distinct from the actual people who are its citizens.7

  • 8 The main works where Alexy deals with this argument are: Theorie der juristischen Argumentation. D (...)

10Alexy’s theory supports the idea that a juridical system which acts in the way described by Luhmann, and indirectly also by Dworkin, is a system which reconstructs practical reason through an internal procedure. Valid moral dimensions which should actually be defined intersubjectively in the public sphere are defined instead by specialists who authorize judges to define what the valid contents in a certain society are.8 According to Alexy, judges would be able to decide impartially and neutrally, because they have, for some unknown reason, a kind of privileged access to the correct interpretation of the constitution. But what happens in fact is that traditional constitutional theory hypostatizes (hypostasiert) the concept of a constitution in two steps: (1) traditional constitutional theory doesn’t differentiate monological interpretations of the constitution from the constitution itself; and (2) it concentrates the monological interpretation of the constitution in the judge’s individual Ego (Self). With psychology’s vocabulary this behavior could be defined as egocentric:

  • 9 “Im Kleinkindalter äußert sich der Egozentrismus in der Vorstellung, daß Objekte mit ihrer Wahrneh (...)

During infancy, egocentrism expresses itself in the idea that all objects are identical with one’s perception of them […]. The egocentrism of pre-adolescence is characterized by the conviction that one’s own ideas correspond to a higher form of perception of reality. […] Lastly, at the beginning of adolescence, egocentrism shows itself in the notion that the ideas of others are centered entirely on their own selves.9

  • 10 Hegel Georg Wilhelm Friedrich, Grundlinien der Philosophie des Rechts oder Naturrecht und Staatswi (...)

11Traditional constitutional theories support, therefore, what can be called Egocentric Constitutionalism. With the analysis of the above-mentioned theories I seek to show with Hegel that traditional constitutional theory fells into the trap of “not seeing the forest before the trees” (den Wald vor den Bäumen nicht zu sehen).10 Thus, the philosophical content of traditional theories of constitutionalism can be summarized in four main claims:

12Constitution and law should be considered simply as a complex of norms or decisions developed by judges which is and must be disconnected from politics, from the learning process of a society and from social relations of recognition;

13Judges are conceived as protecting the principles of justice by means of monological intepretive procedures;

14Law’s analysis should be developed through a dualism of observer and participant perspectives. In other words, a constitution should be understood as a system of norms and principles (participant perspective) or as a social system which connects politics and law (observer perspective). For traditional theory it is very important that these two perspectives should always be comprehended as totally separated spheres which should not be confused. They must be analytically separated from one another. Thus, constitutional theory becomes quite satisfied to live in a kind of schizophrenic world where a constitution is a system of norms and principles totally separated from social reality;

15Finally, traditional constitutional theories defend the idea that these two spheres correspond to two different forms of validity: on the one hand, normative, and on the other, social validity. Constitutional theory should therefore be interested primarily in the normative sphere of the constitution. The only way in which traditional theories have learned to protect the constitution’s normativity, however, is to make the constitution too distant from social reality;

  • 11 Theunissen Michael, Sein und Schein, Die kritische Funktion der Hegelschen Logik, Frankfurt am Mai (...)

16Hegel has already shown that problems of theoretical presentation are not external to questions of method.11 Thus, one of the theses which I defend in this article is that the theories that accept the above-mentioned claims, i.e. traditional theories, are blind because with their categories they cannot see that the normative dimension of the constitution can only be suitably comprehended from the dynamic viewpoint of a learning process of mutual recognition.

  • 12 Horkheimer Max, “Traditionelle und kritische Theorie”, in Zeitschrift für Sozialforschung, Jahrgan (...)

17In 1937, Horkheimer was confronted with similar problems when he wrote his famous article Traditional and Critical Theory. In order to describe these problems and situate the concept of a critical theory, he contrasted it with a traditional theory which did not see that its philosophical presuppositions are embedded in social-historical learning processes. Critical theory, by contrast, should always be aware of its economic and social-historical pre-formation.12 I think that this distinction can help us to clarify the problems with which contemporary constitutional theories are confronted. Therefore, I intend to connect what I call a critical constitutional theory with the theoretical approach of the Frankfurt School. The most important distinguishing features of this tradition are the following:

18Critical theorists are aware of their conditions as political, social and historical beings, i.e. they are conscious of the connection between critical theory and social learning processes which determines the point of view of their theories;

19Their framework employs the idea of a social pathology of reason (soziale Pathologie der Vernunft) which enables them to criticize contemporary social problems;

20The idea of social pathology is connected with the idea of an emancipatory interest that forms the basis of the connection between theory and praxis;

21The thesis of my paper is that Axel Honneth’s work on a theory of recognition offers a fruitful framework to those who want to develop a critical theory of constitution, precisely because he attempts with his theory of recognition to satisfy the three theoretical aims mentioned above. According to Honneth, the primary function of the rule of law is to protect recognition-relationships in order to permit members of a society to achieve self-respect for themselves as equals entitled to make their own decisions on how to conceive and realize their own life plans. Thus, this form of relation-to-self (self-respect) is realized through legal relations which recognize one as equally deserving rights to liberty, access to the political process, social rights, and the burdens of legal responsibility. Rights must be more than simply a translator of some kind of idealized democratic process (Habermas); rights must be able to protect social relationships from the threat of misrecognition. Thus, my thesis in this article is that recognition is necessary to perpetuating a healthy democratic process. In the context of my article this means that institutional arrangements of judicial review must protect recognition-relationships. Moreover, my reinterpretation of constitutional democracy seeks to dispel worries about judicial paternalism and populism.

Honneth’s theory: the legal sphere of recognition

  • 13 Honneth Axel, Kritik der Macht, Frankfurt a. M., Suhrkamp, 1989, p. 278 ff.
  • 14 Ibid., p. 328 ff.

22Honneth’s main intention in Kritik der Macht (Critique of Power) is to show that a theory of recognition offers a better theoretical framework than Habermas’s dualistic way of conceiving society. In Theory of Communicative Action, Habermas develops two theoretical perspectives from which society can be analyzed: a communication-theoretical interpretation of social reality (eine kommunikations-theoretische Deutung der sozialen Realität) and a system-theoretical version of social reality (eine systemtheoretisch gerichtete Version der Gesellschaftstheorie). Honneth’s strategy in Critique of Power is to develop an internal critique: he uses the first version (communicative-theoretical interpretation of social reality) of Habermas’theory to criticize the second one (system-theoretical interpretation of social reality). Thus, Honneth tries to show how Habermas’s theory of society lost its critical potential with the introduction of the concept of a system into his theory.13 The idea of a system should be seen as misleading, because it leads us to analyze society as if some spheres of action (e.g., systems of economy and administration) have become independent of intersubjective and social relationships of the life-world. According to Honneth, when capitalistic societies are conceived in this dualistic way (life-world versus system), social theory succumbs to two complementary fictions:14

23the existence of organizational spheres of action without norms (norm-freien Handlungsorganisationen);

24communication spheres without power (machtfreien Kommunikationssphären).

  • 15 See the Nachwort of Honneth Axel, Kritik der Macht, Frankfurt a. M., Suhrkamp, 1989, p. 386 and th (...)

25In short, Honneth argues that Habermas’ dualist theory of society should be criticized from the perspective of the life-world, from the perspective of a horizon of intersubjectivity within which the institutions are embedded. More precisely, Honneth argues in the postscript to Critique of Power that the first version of Habermas’theory of society could be better developed by integrating it with Hegel’s conception of Struggle for Recognition.15 Thus, the main purpose of his book Critique of Power is to show that a critical theory of society must comprehend institutions and the life-world from the point of view of just one category: recognition.

26In Kampf um Anerkennung (The Struggle for Recognition) Honneth attempts to carry out this task. Honneth develops what can be called a negative conception of recognition. Negative here means that Honneth does not try to define what recognition is, but rather concentrates on experiences of being misrecognized. He connects these negative experiences with a historical learning process (Lernprozess) that aims at the expansion of recognition relationships. By outlining three different spheres of recognition (love, right and solidarity) and by explicating three structures of relation-to-self (self-confidence, self-respect and self-esteem) he identifies three forms of misrecognition (mistreatment, deprivation of rights, and degradation) as sources of social conflicts.

  • 16 Honneth Axel, Kampf um Anerkennung, Frankfurt am Main, Suhrkamp, 2003, p. 178 ff.
  • 17 Ibid., p. 183 ff.

27According to Honneth, in traditional societies legal recognition was based on status. The gradual transition towards what we call today modern societies caused at the same time a slow shift in the constellation of recognition-relationships. Law began to disconnect itself from privilege. In fact, in modern societies law must be general enough to take all citizens into account.16 According to Honneth, this change should be seen as the differentiation of two spheres of recognition: in modern societies legal respect and social esteem separate themselves from each other and begin to fulfill different purposes: legal recognition aims to protect persons without creating an evaluative system within which the value of each person would be determined.17

  • 18 Ibid., p. 90.

28Struggles for recognition should be understood as a kind of social force which initiates and perpetuates the historical learning process of recognition. Honneth uses Marshall’s analysis of the historical genesis of basic rights in order to show that the meaning of legal recognition changes over the time, though not arbitrarily so. Rather, this learning process has a goal: the expansion of recognition in social relationships. Social recognition nowadays means much more than it did at the beginning of the development of modern law. Today we not only take abstract rights of freedom into account, but also rights that protect a minimum standard of living.18

29In The Struggle for Recognition it is not yet clear if Honneth is also taking legal institutions into account. For instance, it is not clear whether the judiciary should have the function of protecting recognition-relationships (either interpersonal relationships or self-relationships). In his exchange with Nancy Fraser, Redistribution or Recognition and in his recent work Verdinglichung, we can nevertheless find some hints about what could be the role of the judiciary and the rule of law in his theory. In Verdinglichung and in Redistribution or Recognition we find at least four new arguments about Honneth’s conception of law:

301. Rights must be more than a mere translation of some kind of idealised democratic process (Habermas);

312. Rights must be able to protect social relationships from the threat of misrecognition;

32The legal sphere of recognition enables a positive relation-to-self, namely self-respect, which is realized through legal relations. From the perspective of the legal sphere of recognition, to recognize someone means to recognize him or her as equally deserving of rights to liberty, access to political process, social rights, and the burdens of legal responsibility;

  • 19 Ibid., p. 194 ff.

33The judiciary should protect legal recognition-relationships in order to enable members of a society to achieve self-respect for themselves as the equals of other members, and to entitle them to make their own decisions on how to conceive and realize their own life plans.19

Critical Theory of Constitution

34My presentation of Honneth’s arguments should be seen as a first step toward theorizing how Honneth’s theory of recognition could be fruitfully used in order to develop a critical approach to constitutional democracy. In section 2 I emphasized the components of Honneth’s theory of recognition which form the basis of a constitutional theory based on recognition. I believe that these insights could help constitutional theorists to solve a number of problems currently plaguing constitutional theory. In short, my proposal is that constitutional theory should seek to analyze constitutions from the perspective of a theory of society based on recognition. In what follows I want to illustrate this with a brief comparison between Ronald Dworkin’s and Danielle Allen’s analyses of the Supreme Court case Brown vs. Board of Education.

35In Law’s Empire, Ronald Dworkin analyzes Brown vs. Board of Education in the context of answering the question: “What is Law?” Dworkin’s analysis is a typical traditional theory of constitutional democracy insofar as it tries to understand the Brown case without taking social processes into account. From his perspective law is only a matter of the judge’s decisions:

  • 20 Dworkin Ronald, Law’s Empire, op. cit., p. 29.

[In Plessy v. Ferguson]“[…] the defendant argued, ultimately before the Supreme Court, that these practices of segregation automatically violated the equal protection clause. The Court rejected their claim”, [but in the Brown case] “[…] the Court decided for the black plaintiffs”.20

  • 21 Ibid., p. 29.

36According to Dworkin, therefore, on the one hand we have a decision – Plessy v. Ferguson – in which the judges rejected the black plaintiffs, and on the other hand some time later we have another decision, in which the court decided for the black plaintiffs. From this traditional point of view there is, of course, no explanation why this change took place: “Its decision was unexpectedly unanimous”.21

  • 22 Allen Danielle S., Talking to Strangers. Anxieties of Citizenship since Brown v. Board of Educatio (...)

37An outline of a critical analysis of the Brown case can be found in Danielle Allen’s book Talking to Strangers.22 In the first chapter of her book, she analyses the political effects of the publication in the newspapers of the famous photo of Elizabeth Eckford being cursed by Hazel Bryan in front of Central High School (Little Rock, Arkansas, September 4, 1957). The first chapter of the book outlines a new concept of a constitution in order to be able to comprehend the case:

  • 23 Ibid., p. 6. Sanford Levinson tries to show the problem of an overly rigid concept of constitution (...)

The time had come for new conceptions of democratic life. With their epiphanic power, the photos achieved psychic pressure significant enough to make the demand for such new conceptions inescapable. The year therefore inaugurated a new constitution. An overstatement? I don’t think so. A constitution is more than paper; it is a plan for constituting political rights and organizing citizenship, for determining who has access to the powers of collective decision making that are used to negotiate a community’s economic and social relations. […] One can’t claim to understand the Constitution of the United States without looking beyond the document, which bears that title, to the state laws and the customary habits of citizenship – unspoken norms of interaction that constrain who can speak where in public and how – that helped route the basic circuitry of political power. If one takes “constitution” in this broad sense, the United States has had several foundings.23

  • 24 Allen Danielle S., Talking to Strangers. Anxieties of Citizenship since Brown v. Board of Educatio (...)

38I believe that Allen’s concept of a constitution could help us to understand what I call here a constitutional theory based on recognition. The difference between the Plessy v. Ferguson and Brown cases cannot be explained in abstraction from the struggles of recognition in the United States. Behind the cases there were at least two competing forces: the National Association for the Advancement of Colored People (NAACP) and the citizens of the United States who were against it. In fact, the incident of Little Rock was called by the press: “the Battle of Little Rock”.24 We could interpret this case as an example of a change in recognition-relationships in the USA: the increasingly effective action of the NAACP was able to change public opinion in favor of African-Americans and to reinitiate a learning process within American society. This learning process then led to a wider and more inclusive social understanding of recognition and mis-recognition. This new understanding not only affected public opinion: it also began to change the way in which judges interpreted the Constitution. Allen’s analysis of Brown vs. Board of Education makes explicit the learning process of recognition, which I exposited earlier in the essay. The four stages of recognition are as follows:

  • Struggle for recognition;
  • Gradual change of recognition relationships;
  • Gradual crystallization of this new form of recognition in institutions;
  • New stage of the learning process.

39On the other hand, it seems that institutions like the Supreme Court can allow struggles for recognition to be more than just struggles: institutions can enable struggles for recognition to become learning processes, if they fulfill three main functions:

  • To protect social relations of recognition;
  • To enable the protection and maintenance of higher levels of recognition a society may achieved;
  • To be flexible enough to take part in the learning process of recognition and to perceive that the society has achieved a higher level of recognition.

40In sum, the comparison between Dworkin and Allen sought to demonstrate that a constitutional theory based on recognition must comprehend the Constitution as a complex with at least three dimensions: (1) an interpretative dimension, (2) an institutional dimension and (3) a social dimension. As we saw, in Dworkin’s analysis of Plessy v. Ferguson the court decided against the black plaintiffs while in Brown vs. Board of Education, the court decided in favor of the black plaintiffs. This example should help make plausible the claim that legal institutions and constitutional interpretation depends upon the current stage of the learning process of a society:

  • 25 Klarman Michael J., From Jim Crow to Civil Rights. The Supreme Court and the Struggle for Racial E (...)

Courts decisions do matter, though often in unpredictable ways. But they cannot fundamentally transform a nation. The justices are too much products of their time and place to launch social revolutions. And, even if they had the inclination to do so, their capacity to coerce change is too heavily constrained. The justices were not tempted to invalidate school segregation until a time when half the nation supported such ruling. They declined to aggressively enforce the Brown decision until a civil rights movement had made northern whites as keen to eliminate Jim Crow as southern whites were to preserve it. And while Brown did play a role in shaping both the civil rights movement and the violent response it received from southern whites, deep background forces ensured that the United States would experience a racial reform movement regardless of what the Supreme Court did or did not do.25

41Thus, it seems to be plausible to claim that at the end of some phase of transition we have in the first place a change in social relationships. Gradually this new way of considering legal recognition crystallizes itself in legal institutions through social actors like judges, who push society towards a higher level of recognition awareness.

42However, Critical Constitutional Theory doesn’t want to be a purely descriptive theory of law, i.e. it wants and needs to be much more, for instance, than merely a sociology of law. It needs to root its analysis of a constitution in an immanent normativity, so that the social dimension of the constitution doesn’t become reduced to a purely empirical dimension. I believe that the most suitable available methodology for performing this immanent function in a critical approach to constitutionalism is the one which Honneth develops in Redistribution or Recognition and that Honneth calls moral dialectic of the general and the particular:

  • 26 Fraser Nancy et Honneth, Axel, Redistribution or Recognition? A Political-Philosophical Exchange, (...)

Within each sphere, it is always possible to set a moral dialectic of the general and the particular in motion: claims are made for a particular perspective (need, life-situation, contribution) that has not yet found appropriate consideration by appeal to a general recognition principle (love, law, achievement). In order to be up to the task of critique, the theory of justice outlined here can wield the recognition principles’surplus validity against the facticity of their social interpretation. As against the dominant interpretative praxis, it is shown that there are particular, hitherto neglected facts whose moral consideration would require an expansion of the spheres of recognition.26

43The normativity of this dialectical model lies in a concept of progress. Progress in the conditions of social recognition takes place along the two dimensions of individualization and social inclusion: either new parts of the personality are opened up to mutual recognition or more persons are included into existing recognition relations, so that the circle of subjects who recognize another grows:

  • 27 Ibid., p. 186.

To be sure, such critique can only attain a perspective that enables it to distinguish grounded from ungrounded claims by translating the previously outlined general criterion of progress into the semantic of each sphere of recognition. What can count as a rational or legitimate demand emerges from the possibility of understanding the consequences of implementing it as a gain in individuality or inclusion.27

44Thus, those social actors who apprehend in their activities the interpretative dimension and/or the institutional dimension of constitution should, therefore, comprehend themselves as participants in a social learning process of recognition, so that they are able to unfold the normativity of the constitution. The other possibility is to comprehend the constitution from the point of view of a traditional constitutional theory. But traditional theories just capture the constitution in a monological way, in other words, in a voluntaristic or, which is the same, in an arbitrary way. That arbitrariness, however, cannot be tolerated in a democratically-conceived rule of law is a lesson that we have already learned. In fact, that was one of the first lessons we learned in the learning process of recognition.

Notes

1 Margalit Avishai, “Recognizing The Brother And The Other”, in Aristotelian Society Supplementary Volume, Vol. 75, Issue 1, Jul. 2001, p. 127-139.

2 “Die Teilnehmerperpektive nimmt ein, wer in einem Rechtssystem an einer Argumentation darüber teilnimmt, was in diesem Rechtssystem geboten, verboten und erlaubt ist und zu was es ermächtigt. Im Zentrum der Teilnehmerperspektive steht der Richter. Wenn andere Teilnehmer, etwa Rechtswissenschaftler, Rechtsanwälte oder am Rechtssystem interessierte Bürger, Argumente für oder gegen bestimmte Inhalte des Rechtssystems vorbringen, dann beziehen sie sich letzthin darauf, wie ein Richter zu entscheiden hätte, wenn er richtig entscheiden wollte. Die Beobachterperspektive nimmt ein, wer nicht fragt, was in einem bestimmten Rechtssystem die richtige Entscheidung ist, sondern wie in einem bestimmten Rechtssystem tatsächlich entschieden wird” (Alexy Robert, Begriff und Geltung des Rechts, München, Alber, 1994, p. 47).

3 The theses about Dworkin, Alexy and Luhmann I will present in what follows are a brief résumé of a detailed account I developed in: Saavedra Giovani A., Jurisdição e Democracia. Um análise a partir das teorias de Jürgen Habermas, Robert Alexy, Ronald Dworkin e Niklas Luhmann, Porto Alegre, Livraria do Advogado Editora, 2006, p. 25-118.

4 These theses are developed by Luhmann in lots of his books. See, for instance: Luhmann Niklas, Soziale Systeme. Grundriß einer allgemeinen Theorie, Frankfurt am Main, Suhrkamp, 1987.

5 The main work where Luhmann deals with this argument is: Luhmann Niklas, Das Recht der Gesellschaft, Frankfurt am Main, Suhrkamp, 1997.

6 The main works where Dworkin deals with this argument are: Talking rights seriously, Cambridge, Harvard University Press, 1978; A Matter of Principle, op. cit., 1985; Law’s Empire, op. cit., 1986; Freedom’s Law. The moral reading of the American Constitution, op. cit., 1996; Justice in Robes, op. cit., 2006.

7 Dworkin Ronald, Law’s Empire, op. cit., p. 168.

8 The main works where Alexy deals with this argument are: Theorie der juristischen Argumentation. Die Theorie des rationalen Diskurses als Theorie der juristischen Begründung, Frankfurt am Main, Suhrkamp, 1991; Theorie der Grundrechte, op. cit., 1996; Begriff und Geltung des Rechts, München, Alber, 1994. I use Alexy’s theory as an ideal typus of the Metatheory of Juridical Argumentation created and developed by Aulis Aarnio, Robert Alexy, Aleksander Peczenik, Jan Broekman, Enrico Pattaro, Robert Summers, Ota Weinberger, Jerzy Wróblewski. See, for instance: Alexy Robert et Krawietz Werner (dir.), Metatheorie juristischer Argumentation, Berlin, Duncker & Humboldt, Heft 108, “Schriften zur Rechtstheorie”, 1983; Zaccaria Giuseppe (dir.), Übersetzung im Recht/Translation in Law, Münster, Lit, “Ars Interpretandi, Yearbook of Legal Hermeneutics 5”, 2000.

9 “Im Kleinkindalter äußert sich der Egozentrismus in der Vorstellung, daß Objekte mit ihrer Wahrnehmung identisch seien […]. Der Egozentrismus der Voradolezenz ist durch die Unterstellung charakterisiert, daß die eigenen Denkvorstellungen einer höheren Form von Wahrnemungsrealität entsprechen. […] In der Frühadoleszenz schließlich tritt der Egozentrismus auf als die Vorstellung, die Gedanken anderer konzentrierten sich ganz auf das eigene Selbst” (Entwicklung des Ichs, Döbert Rainer, Habermas Jürgen et Nummer-Winkler Gertrud (dir.), Köln, Kiepenheuer & Witsch, 1980, p. 177).

10 Hegel Georg Wilhelm Friedrich, Grundlinien der Philosophie des Rechts oder Naturrecht und Staatswissenschaft im Grundrisse, Frankfurt am Main, Surhkamp, 1970, p. 14.

11 Theunissen Michael, Sein und Schein, Die kritische Funktion der Hegelschen Logik, Frankfurt am Main, Suhrkamp, 1980.

12 Horkheimer Max, “Traditionelle und kritische Theorie”, in Zeitschrift für Sozialforschung, Jahrgang 6, 1937, p. 245 ff., specially p. 253 ff. See also: Horkheimer Max, “Die gegenwärtige Lage der Sozialphilosophie und die Aufgaben eines Instituts für Sozialforschung”, in Gesammelte Schriften, Vol. 3, Frankfurt am Main, Fischer,1931,p.20ff.; Horkheimer Maxet Marcuse Herbert,“Philosophie and kritische Theorie”, in Zeitschrift für Sozialforschung, Jahrgang 6, 1937, p. 625 ff.

13 Honneth Axel, Kritik der Macht, Frankfurt a. M., Suhrkamp, 1989, p. 278 ff.

14 Ibid., p. 328 ff.

15 See the Nachwort of Honneth Axel, Kritik der Macht, Frankfurt a. M., Suhrkamp, 1989, p. 386 and the Vorwort of Honneth Axel, Kampf um Anerkennung, Frankfurt am Main, Suhrkamp, 2003, p. 7.

16 Honneth Axel, Kampf um Anerkennung, Frankfurt am Main, Suhrkamp, 2003, p. 178 ff.

17 Ibid., p. 183 ff.

18 Ibid., p. 90.

19 Ibid., p. 194 ff.

20 Dworkin Ronald, Law’s Empire, op. cit., p. 29.

21 Ibid., p. 29.

22 Allen Danielle S., Talking to Strangers. Anxieties of Citizenship since Brown v. Board of Education, Chicago, The University of Chicago Press, 2004.

23 Ibid., p. 6. Sanford Levinson tries to show the problem of an overly rigid concept of constitution in a suggestively titled essay: Levison Sanford, “A Multiple Choice Test: How Many Times Has the U.S. Constitution Been Amended? (A) 14; (B) 26; (C) 420 + 100; (D) All of the Above”, in Pragmatism in Law and Society, Oxford, Westview Press, p. 295-310.

24 Allen Danielle S., Talking to Strangers. Anxieties of Citizenship since Brown v. Board of Education, Chicago, The University of Chicago Press, 2004, p. 24 ff.

25 Klarman Michael J., From Jim Crow to Civil Rights. The Supreme Court and the Struggle for Racial Equality, New York, Oxford University Press, 2004, p. 468.

26 Fraser Nancy et Honneth, Axel, Redistribution or Recognition? A Political-Philosophical Exchange, New York, Verso, 2003, p. 187 ff.

27 Ibid., p. 186.

Auteur

Johann Wolfgang Goethe-Universität, Frankfurt am Main

© Presses universitaires de Paris Nanterre, 2009

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