Copyright (c) 2003 The Harvard Law Review Association
Harvard Law Review
ARTICLE: HABERMAS@DISCOURSE.NET: TOWARD A CRITICAL THEORY OF CYBERSPACE
116 Harv. L. Rev. 749
A. Michael Froomkin
In what has been called "a monumental achievement ... that provides a systematic account of major issues in contemporary jurisprudence, constitutional theory, political and social philosophy, and the theory of democracy," 1 J<um u>rgen Habermas has proposed a discourse ethics as the basis for testing the legitimacy of legal institutions. Habermas seeks to identify and explain a method for justifying valid law and legal institutions, or at least the procedures necessary to make legitimate law. His approach blends an abstract theory of justice with a sociological theory of law that is grounded in empirical observations. 2 Attempting to bring moral philosophy into the realm of political science, Habermas seeks nothing less than to describe a system that can validate moral choices, notably those about how society should be organized. Habermas proposes a way to identify norms that are presumptively legitimate because they were reached according to morally justified procedures. In so doing, Habermas directly confronts the most difficult obstacles to moralizing about social organization, including the fact/value distinction, 3 false consciousness, 4 and the injustices and imbalances caused by unequal distributions of power and knowledge. The outcome of this inquiry is of enormous relevance to the construction and legitimacy of the legal system, 5 especially because Habermas argues that only a social system that guarantees basic civil rights and enables meaningful participation by all those affected by a decision can make legitimate decisions.
In the spirit of Habermas's project of linking sociological observation with legal philosophy, 6 this Article ...
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