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17 Cardozo L. Rev. 785 (1995 - 1996)
Reflexive Law, Civil Society, and Negative Rights

handle is hein.journals/cdozo17 and id is 803 raw text is: REFLEXIVE LAW, CIVIL SOCIETY, AND NEGATIVE RIGHTS Andrew Arato* Jurgen Habermas has remained faithful to the heritage of Crit- ical Theory-to the method and perspective of imminent social criticism. His concept of paradigm is fully intelligible only in context of such background. It means, first and foremost, enlight- enment concerning a given society with a normative project in mind-in the present case, the actualization of the system of rights. Thus, a paradigm is a form of diagnosis, based on the rational re- construction of forms of consciousness, filtered and synthesized into theory, that seeks to orient action. At all points, the construc- tion of paradigms refers to a social totality which is subjected to critique. This critique, however, is not conceived as a mere confronta- tion of norm and fact-ought and is-but rather presupposes that elements of rationality are already present in society; that princi- ples of justice are present in actual institutions and are linked up with elements of justice. Combining differentiated dimensions of validity and facticity, law and the legal order become'the guaran- tees of the possibility of imminent criticism. Those of us who still value aspects of the project of Critical Theory can only applaud such a forthright reintroduction of its main methodological themes on the level of legal theory. Given Habermas's own method, he will not be surprised that I will not focus on the large elements of agreement between us. At any rate, there is time only for some critical remarks. First, I wonder if the three paradigms he introduces-the lib- eral, the welfare-state, and the procedural (or radical demo- cratic)-are fully parallel. To be sure, they each refer (with different emphases) to the actualization of the system of rights, in- cluding the right of equal subjective liberties. Moreover, each model seeks to incorporate the previous one, whose critique is the motor of new paradigm construction. The welfare-state model incorporates the stress on subjective autonomy. Similarly, the procedural model seeks to continue, if in * Professor of Sociology, New School for Social Research, New York. This Comment was presented as a response to Jtrgen Habermas, Paradigms of Law, 17 CARDOZO L. REv. 771 (1996).

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