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108 Harv. L. Rev 1163 (1994-1995)
Law as Discourse: Bridging the Gap between Democracy and Rights

handle is hein.journals/hlr108 and id is 1181 raw text is: BOOK REVIEW LAW AS DISCOURSE: BRIDGING THE GAP BETWEEN DEMOCRACY AND RIGHTS BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DIScOURSE THE- ORY OF LAW AND DEMOCRACY. By Jiirgen Habermas.1 Cambridge: MIT Press. I995 (trans. William Rehg). Reviewed by Michel Rosenfeld2 In complex pluralist and multicultural societies, successful social in- tegration depends increasingly on law's predictability and on its jus- tice. With the ever greater functional differentiation typical of contemporary societies, however, these two requirements seem more and more incompatible. On the one hand, law's predictability depends on the systematic reduction of complexity to stabilize expectations.3 On the other hand, justice becomes more complex. Regulation through law becomes more encompassing, calling for more finely tuned calibrations between relevant equalities and inequalities. Legal norms also become more contested as normatively integrated, prevailing com- munal conceptions of religion, morals, and law give way to a disparate plurality of antagonistic visions.4 Competition among conflicting vi- sions of justice and conceptions of the good, moreover, sets up an an- tinomy between process and substance. Indeed, in the face of disagreement over substantive justice and the common good, process- oriented decisionmaking becomes eminently desirable. But as deeply rooted concerns over the tyranny of the majority' and the difficulties of achieving procedural justice independently of substantive justice ev- idence,6 exclusively relying on process and procedure is unlikely to I Professor of Philosophy, Johann Wolfgang Goethe University of Frankfurt am Main, Germany. 2 Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University. I wish to thank David Gray Carlson, Marci A. Hamilton and William Rehg for their many incisive com- ments and helpful suggestions. 3 See NniLAs LusJANN, A SOCIOLOGICAL THEORY OF LAW 77-78 (Martin Albrow ed. & Elizabeth King & Martin Albrow trans., Routledge & Kegan Paul 1985) (1972); Nnu.As LusaANN, ESSAYS ON SELF-REFERENCE 14-15, 232-33 (iggo); Niklas Luhmann, The Unity of the Legal System, in AUTOPOIETIc LAW: A NEW APPROACH TO LAw AND SOCIETY 12, 19-20, 27 (Gunther Teubner ed., 1988); see also Michel Rosenfeld, Autopoiesis and Justice, 13 CARDOZO L. REv. 1681, 1701-02 (1992) (arguing that the law legitimates and stabilizes people's expectations). 4 See Rosenfeld, supra note 3, at 1682. 5 See, e.g., THE FEDERALIST No. 51 (James Madison). 6 A prime example of these difficulties is the long and tortuous relationship between proce- dural due process and substantive due process in the context of the Due Process Clause of the 1163

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