BOOK REVIEW

HUGH BAXTER Habermas: The Discourse Theory of Law and Democracy Stanford, CA:
Stanford University Press, 2011

Many of the challenges confronting readers of Jürgen Habermas’s legal

philosophy stem from the fact that it is a part of a larger project. Further-
more, despite the fact that Habermas’s major contribution to the field,
the book Between Facts and Norms (BFN),1 is first and foremost a work of
normative theory, his interest in law originates in a set of essentially
socio-theoretic concerns. Habermas comes to the law by way of Weber,
not Kant (despite being strongly influenced by both thinkers), and this
colours his view in many ways.
Thus, whatever the particular normative debate that he is engaging
with, Habermas’s claims are always structured and informed by a set of
background theoretical, and sometime architectonic, commitments that
arise from his broader social theory. Central to this is his attempt to
understand the modernization of society in terms a social rationalization
process that he describes as a ‘differentiation of system and lifeworld.’
Unfortunately, Habermas does not always lay out these background con-
siderations quite as plainly as he might. This accounts, in part, for why
some of his major claims in legal philosophy, despite being original and
thought-provoking, are presented in a way that seems under-argued, or
in some cases, frankly mysterious.
The great merit of Hugh Baxter’s book is not just that it assesses Ha-
bermas’s legal philosophy against the background of his more general
social theory but that it provides a sophisticated assessment of both as-
pects of Habermas’s program. This is not just a good book on Haber-
mas’s theory of law but also contains the best discussion of Habermas’s
theory of system and lifeworld that I have encountered. Thus, despite
being written by a law professor and published in a book series aimed at
a legal audience, it is to be recommended to anyone with an interest in
Habermas’s work, and particularly those seeking a more fine-grained dis-
cussion of the system/lifeworld distinction.
From a socio-theoretic perspective, the relationship between Haber-
mas’s theory of law and his analysis of society in terms of system and life-
world is fairly obvious. Habermas claims that the orderliness of systemically

1 Jürgen Habermas, Between Facts and Norms, translated by William Rehg (Cambridge,
MA: MIT Press, 1992).

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 BOOK REVIEW 153

integrated domains of interaction is achieved through the incentives that

individual actors confront. The mechanism that supplies these incentives,
however, is not itself supported by incentives, but must be, as Habermas
puts it, ‘anchored’ in the lifeworld, which is to say, it must be supported by
reasons that people accept.
What kind of institution could this be that has one foot in the system,
another in the lifeworld? The answer, according to Habermas, is the law.
Or more specifically, positive law, in the quasi-Weberian sense of law that
is procedurally enacted and bureaucratically imposed. Habermas’s cen-
tral normative question is how law in this sense could be valid; in other
words, how it could not just motivate people to comply but command
their allegiance as well.
Baxter’s book begins, as do many books on Habermas, with a one-chap-
ter introduction to Habermas’s broader project, to set the stage for the
more detailed discussion to follow. The project in question is, of course,
The Theory of Communicative Action (TCA), and it is worth re-emphasizing
that none of Habermas’s later work is really intelligible outside an under-
standing of the major set of ideas that he develops in TCA. This is unfor-
tunate, in a way, because, thanks to its length, TCA is the one book that
most casual readers of Habermas seem to want to skip.
It is also a regrettable feature of the secondary literature on Habermas
that many of these introductory summaries of Habermas’s thought are
extremely unreliable, and in some cases, downright confused. Baxter’s, I
am pleased to report, is not. It is clear, accurate, and contains a substan-
tial amount of detail. (Indeed, I have but one quibble: Baxter rightly
takes Habermas to task for hyperbole in the way that he draws the sys-
tem/lifeworld distinction, particularly in describing the system as ‘norm
free’ and for suggesting that strategic action does not draw upon any life-
world resources. Yet, even in TCA, Habermas sometimes qualifies the
claim – for example, describing the market as ‘a block of more or less
norm-free sociality.’2 A more charitable reading would involving seeing
that ‘more or less’ as implicit before every occurrence of the phrase
‘norm free.’ Furthermore, it should be noted that Habermas presents a
more nuanced version of his action theory in the post-TCA paper ‘Ac-
tions, Speech Acts, Linguistically Mediated Interaction and the Life-
world,’3 which makes explicit the dependence of strategic action on
language and lifeworld resources.)

2 Jürgen Habermas, The Theory of Communicative Action, translated by Thomas McCarthy

(Boston, MA: Beacon Press, 1987) vol 2 at 171.
3 Jürgen Habermas, ‘Actions, Speech Acts, Linguistically Mediated Interactions and the
Lifeworld’ in G Fløistad, ed, Philosophical Problems Today (Dordrecht: Kluwer, 1994) vol
1, 45.

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154 UNIVERSITY OF TORONTO LAW JOURNAL

Baxter’s next two chapters are organized primarily around a discus-

sion of BFN, with the first tackling Habermas’s view of rights and democ-
racy, the second his theory of legal adjudication. In the former, he
registers some reasonable complaints about the sketchiness of Haber-
mas’s derivation of the system of rights from the discourse principle. He
goes on to a very worthwhile discussion of Habermas’s views on democ-
racy. He is particularly alert to the fact that Habermas’s so-called dis-
course theory of democracy has several features that make it quite
different from the various conceptions of deliberative democracy that
are familiar in the Anglo-American literature.
In particular, Baxter is clear that Habermas does not regard it as the
function of democratic institutions to improve the conditions of dis-
course, so that they might more closely approximate the conditions of
an ‘ideal speech situation’ (a view that is widely, although mistakenly, at-
tributed to Habermas). This follows quite immediately from the back-
ground theory of the state that Habermas holds, which regards it as an
autonomous subsystem, differentiated from the lifeworld, and thus not
directly governed by any normative or value consensus. For Habermas,
the deliberation that counts is not what goes on in legislatures but what
occurs in civil society, or the informally organized public sphere.4 For-
mal democracy is a set of institutional arrangements that allow these
communicatively achieved agreements to be transformed into adminis-
trative power without breaking the chain of reasoning that connects
them to validity claims circulating in the lifeworld. This is, as Baxter
notes, the ‘most novel aspect’(100) of Habermas’s view, and it is well
worth drawing attention to, since Habermas is often misunderstood on
this point (despite that fact that it is the single most important structural
feature of his conception of deliberative democracy).
With respect to Habermas’s theory of legal adjudication, Baxter
spends a fair amount of time puzzling out the view, paying considerable
attention to the question of how much of what Habermas argues can be
generalized from a German to an American context, given the vastly dif-
ferent constitutional histories and judicial cultures in the two countries.
To the extent that he is critical, his most trenchant observations all con-
cern the distinction that Habermas appeals to between discourses of
application and discourses of justification, which has been widely criti-
cized in the literature and seems rather obviously untenable.
Where the book really begins to break new ground is in the way that
Baxter, after having discussed the legal philosophy, turns back to the social

4 This point has been emphasized by Simone Chambers, ‘Rhetoric and the Public
Sphere: Has Deliberative Democracy Abandoned Mass Democracy?’ (2009) 37 Political
Theory 323 at 333–4.

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 BOOK REVIEW 155

theory and asks, in effect, ‘Given what Habermas says about law in BFN,
how much of what he says in TCA still makes sense, and how much of it
needs to be revised?’ Since law establishes the boundary between system
and lifeworld, the question becomes ‘Does Habermas’s theory of law help
to clarify the system/lifeworld distinction, or does it make it less tenable?’
Baxter’s view is that it makes it less tenable. First, and foremost, he
tries to show that when you look at the broader picture, with an eye
toward crossing the t’s and dotting the i’s, it’s very hard to see how all
the different pieces fit together. The Parsonian view of steering media
and media-steered subsystems is clearly based on the paradigm case of a
market economy. Despite the parallels between markets and hierarchies
as different ways of organizing transactions through incentives, it was
always something of a stretch to treat ‘power’ and ‘the state’ as medium
and subsystem on analogy to ‘money’ and ‘the market.’ Baxter shows
quite effectively that the idea of ‘power as steering medium’ becomes
almost impossibly strained once one observes that there are different
branches of government, each organized in a slightly different fashion,
or once one starts to distinguish between administrative power and
other forms, or once one begins to ask where exactly the legislature is sit-
uated with respect to the system/lifeworld dichotomy.
The conclusion that Baxter draws from his analysis is twofold: first that
the system/lifeworld distinction is untenable and ‘unnecessary,’ and sec-
ond, that the appropriate remedy is to drop the lifeworld concept (176)
and, in effect, adopt a type of general systems theory. Here I am inclined
to disagree, despite being largely sympathetic to most of the criticisms
that Baxter develops against Habermas on this point. Elsewhere, I have
suggested that the distinction between system and lifeworld makes more
sense if one distinguishes cybernetically steered systems from mere systems
of interaction in which orderliness is achieved through external incen-
tives.5 This allows one to provide micro-foundations for the order-level
concepts ‘system’ and ‘lifeworld’ in the action-level concepts of ‘strate-
gic’ and ‘communicative’ action, making it easier to deal with the ambig-
uous cases involving mixed motives. However, I do not want to insist
upon that here.
My central reservation about Baxter’s desire to jettison the lifeworld
concept appeals to Habermas’s original motive for introducing it; that is,
his desire to explain how social crises are possible and, in a more norma-
tive vein, to determine whether there are any limits to the susceptibility
of the public to manipulation. General systems theory, in Habermas’s

5 Joseph Heath, ‘System and Lifeworld’ in Barbard Fultner, ed, Habermas: Key Concepts
(Durham, UK: Acumen, 2011) 75 at 82.

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156 UNIVERSITY OF TORONTO LAW JOURNAL

view, is nothing but an updated version of the dystopia that the previous
generation of Frankfurt School thinkers described as a ‘totally reified
society.’ It is a world in which civil society, conceived of as either a system
or cross-cutting collection of systems, simply adapts to the pressures put
upon it by neighbouring systems. There are no ‘bright lines’ at which it
offers resistance and no limit in principle to the configurations it is will-
ing to assume. In rejecting this view, Habermas’s central ambition is to
show that reason and (eo ipso) justice impose constraints on functional
adaptation and that therein lies the possibility of salvation from the iron
cage of modernity.
Now of course, when put this way, it sounds rather overblown. My
point is that the system/lifeworld distinction is not one that can be put
aside lightly. It is Habermas’s Maginot line. Furthermore, it carries the
entire promise of his theory as a critical theory of society.
Apart from these essentially political considerations, the system/life-
world distinction has a more subtle value for critical theory, which has
been emphasized by Nancy Fraser among others.6 It is important insofar
as it helps us to avoid what one might call the ‘hermeneutic fallacy,’ of as-
suming that every social behaviour is culturally ‘patterned’ and therefore
‘says something about us,’ whether it be our values, our culture, our re-
pressed desires, and so forth. What the system/lifeworld distinction em-
phasizes is that this is sometimes the case (and so the best way to change
behaviour is to change peoples’ beliefs about how they should be behav-
ing), but other times, it is not the case, either because the behaviour pat-
tern is an unintended consequence of something else or because it is a
product of an autonomous control process which systematically adjusts in-
centives in order to reproduce a particular pattern. In the latter case,
what needs to change is not people’s beliefs but rather their incentives.
An awareness of this distinction is extremely important in order to pre-
vent critical theory from lapsing into ineffective cultural criticism.
A final, smaller observation: part of Baxter’s willingness to jettison the
lifeworld concept, I think, stems from his (confessed) inability to make
much sense of the culture/society/personality architectonic that Haber-
mas uses in his analysis of it or of what it means for these to be ‘compo-
nents’ of the lifeworld (175). This is an admittedly confusing point,
particularly since that trichotomy does not map onto the three validity
claims associated with the speech acts through which the lifeworld is
reproduced. And although Baxter, in earlier work, makes it clear that

6 This explains why, despite having lodged a number of criticisms of that distinction
early on, she retains the same architectonic in her view (with the distinction between
redistribution and recognition). See Nancy Fraser, Justice Interruptus (New York: Rou-
tledge, 1997) at 27–31.

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 BOOK REVIEW 157

Habermas has adopted this distinction from Talcott Parsons, there

seems to be little recognition of that here – much less the thought that
one might look to Parsons for clarification of these ideas.
Judging by his references, Baxter is not particularly enthusiastic about
the work that Parsons did prior to the 1960s. This strikes me as unfortu-
nate, since there is much to be said for Parsons’s early formulations. If
one regards the lifeworld as primarily a phenomenological concept,
then it is fairly easy to conclude that it has no value. If one treats it,
instead, as a repackaged version of Parsons’s 1950s-era concept of ‘the
social system,’ then I think it is possible to make a stronger case for it.
Finally, I should note that Baxter spends a lot of time criticizing vari-
ous distinctions that Habermas draws. This is, in a sense, easy to do,
because there will always be complex cases that don’t line up neatly with
any particular set of distinctions. What is important to recognize is that
all of these distinctions are drawn in response to some theoretical imper-
ative and are intended to serve some purpose. So it is important not just
to criticize them but to show how they can be replaced with more expres-
sively powerful vocabulary.
This is not something that Baxter spends much time doing, and my
sense is that he would have some difficulty doing so, were he to try. This
is because the version of systems theory that he favours is the autopoetic
one, which posits little to nothing in the way of internal structure in the
systems. This type of social theory always runs the risk of becoming the
proverbial night in which all cows are black (where anything and every-
thing can be described as some sort of ‘system’). What needs to be
shown is not just that Habermas’s distinctions are problematic but that
they can be abandoned without loss of expressive power. The only way to
do that is by providing a substitute vocabulary that is able to respond to
the same impulses with its own set of distinctions. Baxter has laid the
groundwork for that project here, but its implementation remains for
the future.
Joseph Heath
University of Toronto, Department of Philosophy, Centre for Ethics, and School of
Public Policy and Governance

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