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Cover of Habermas by Hugh Baxter. Habermas. The Discourse Theory of Law and Democracy. Hugh Baxter. SERIES: Jurists: Profiles in Legal Theory.
Table of contents
- Contributions to a discourse theory of law and democracy
- Jürgen Habermas
- About the Book
- Jürgen Habermas - Wikiquote
He tries to overcome the perspective of surrounding, based on the rediscovery of civil society. In the context of democratic theory, Habermas b , p. Habermas b, p. The authoress also argues that it is difficult to draw the boundary between public and private, noting that by limiting the entry of private issues, people and issues are excluded from the debate FONTANA, The work of the s Theory of Communicative Action , had a direct and indirect criticism of the category public sphere. The indirect refer to the conception of a theory of communicative action, to the focus on consensus and on the perspective of a theory focused on language as a central element MOUFFE, ; YOUNG, The author accepts criticisms related to issues such as inequalities, social conflicts and subaltern spheres.
Miguel , p. Thus, the public sphere is also important for discussions of coercion and exclusion. In responding to the criticism about the conflictive nature, it is important to consider that Habermas b highlights the concept of civil disobedience and the importance of the protests.
Contributions to a discourse theory of law and democracy
Nevertheless, Habermas defends the public sphere as a critical and open concept that allows structures of power and capital to be contained by communicative power as well FLYNN, Therefore, even with the incorporation of changes, several critiques still exist in relation to the category public sphere and its conceptualization by Habermas - hence the importance of new advances. As Melo , p. In addition, it allows gaps to be found for the reconstruction of the category, which is the objective of this work.
The relationship between social management and the public sphere has already been discussed by other authors. However, in the book published with the studies and discussions presented at the event, there is no in-depth theoretical discussion, methodological paths or empirical research on public sphere as conceptualized by Habermas or its variations, except for the work by Schommer, Andion and Pinheiro With this, they understand that the public sphere is an intermediary category, locus and condition of development of social management.
For the authors, the public sphere is debated with references to Habermas and Hannah Arendt who has important contributions to discuss this category. With Habermas, they explore The Structural Change of the Public Sphere and discuss the search for a new public sphere where people can deliberate.
To do so, they cite the concept of public sphere present in Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy and relate this category to others, namely: deliberative democracy, dialogicity, inter-subjectivity and rationality. According to Gondin, Fischer and Melo a, p. This article makes a more detailed exploration of this work of Habermas, highlighting the perspectives of the literary and political public sphere, as well as its historical origin and function, as emphasized by Habermas. In turn, Costa cites the concept of the public sphere, remembering that it emerged from the revolutionary role of the bourgeoisie in opposition to political absolutism.
Peres Junior, Pereira and Oliveira , p. Schommer, Andion and Pinheiro present a discussion about public spheres based on Arendt and Habermas, relating the coproduction of public goods and social innovation in the public sphere. However, the authors do not develop criticism towards the concept of the public sphere. On the other hand, the texts of Pereira and Zwick and Pereira propose that social management is located in a space shared between state, market and civil society, understood as the public sphere.
However, the authors also do not problematize or expand the concept of the public sphere. The pertinence of the Habermasian referential in social management was also criticized by Pinho and by Pinho and Santos a ; b. The criticism of Pinho and Santos a are more focused on the experiences of social management, and they mention the public sphere, based on their previous works, that the public sphere would have been explored in an inconsistent and imported way, without the due consideration of the national context.
For Pinho and Santos a , the central question is whether the proposal of social management materializes in the practice of the Brazilian reality, arguing that there is no such experience in Brazilian history to support this assumption.
The article by Pinho and Santos b , p. Pinho and Santos b , p. Particularly regarding the relationship between social management and public sphere, the demand - because of deepening the theoretical debate and of confronting the challenges posed by unequal societies such as the Brazilian one - is that an effort should be made to explicit the nature of the complex relationship between those terms. Who are the supposed subjects, hegemonic or counter-hegemonic, of social management?
What are the economic, social and political conditions capable of transforming relations of externality and power between subject and object of knowledge, between state and society, capital and labor? What are their projects of transformation, projects of society? What theories are at the base of such formulations and what are their concrete and political, conditions; concrete capacity of realization? Another very dense criticism is that of Persson and Moretto Neto For them the central question would be:.
The public sphere of Habermas a, p. How, then, can the decision-making authority be shared among the participants in a collective action if the decision remains in the hands of the state bureaucracy? Eagleton, M. Marx, M. Weber, M. Tragtenberg and others. Based on the revision carried out, Persson and Moretto Neto is the text with a broader discussion on public sphere, developed in the field of social management.
Similarly, Persson and Moretto Neto , p. They say that Habermas can contribute significantly to study social management and to advance in this field, but his works need to be interpreted together with the criticisms they have received. Summarizing this section, we consider: a In the literature review carried out in previous studies, there are several ways of appropriating the concept of the public sphere. This reconstruction aims to remedy - at least potentially - the various gaps found.
Despite being a theoretical text, we constantly emphasize the importance of empirical references for the study of public spheres. In adition, the arguments proposed are important to broaden the critical potential of this category, considering that it can be expanded with several critical studies beyond the conception offered by Habermas, without neglecting his contributions. To do so, we present a series of arguments in Box 2. In the next section a debate on each one of the arguments and the way as they expand the vision of the category public sphere in the field of social management is presented.
About the Book
Argument 1 : Conceiving public spheres not only as locus of consensus, but also of the conflict and the plurality of opinions and interests. It is important to emphasize that studies on public spheres should consider them as places not only of consensus, as Habermas b focuses, but also as places of conflict a possibility that Habermas himself implies in his works.
For the author, based on Axel Honneth, there is the need to expand the view regarding the assumption of consensus and the lines of discussion about social pathologies. Melo , p.
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Therefore, public spheres are not conflict-free spaces. Thus, the reproduction of an extremely consensual notion in the field of social management is subject to criticisms such as those by Pinho and Santos b and Persson and Moretto Neto However, it is important to emphasize that in order to conceive this conflicting dimension, it is not necessary to defend an agonistic dimension - in the sense given by Chantal Mouffe and Ernesto Laclau in direct opposition to Habermas MOUFFE, We argue that it is possible to consider the conflicting dimension based on reconstructive procedures.
Habermas has never written about the real and everyday world as a utopian paradise of mutual understanding. It is about the fact that the real and everyday world, with all its iniquities and injustices, is not only violence and domination SOUZA, , p. Regarding the conflicting character, we can explore the concept of civil disobedience as well as the importance of the protests. However, the conflicting character of the public sphere goes beyond the idea of protest and civil disobedience - hence the need to go beyond Habermas. Pereira , p.
According to the author, in the public spheres other forms of interaction occur, other communicative forms, generating dissensions and even violent actions. However, this is no reason to abandon and deny the emancipatory capacity of the public sphere and deliberative democracy PEREIRA, Although it is possible to consider conflicting elements in Habermas, Honneth argues that the focus on the paradigm of communication has distanced Habermas from a broader analysis of the conflictive dimension of society, which Honneth seeks to do through the theory of the struggle for recognition 2.
For Honneth, Habermas separation of the dimensions in system and lifeworld is fictional and leads to the understanding that the latter would be exempt from relations of power and domination. Therefore, we consider that we need to expand the vision of lifeworld, recognizing that in this dimension there are roots of prejudices, several levels of discrimination and ideologically constructed visions that cause injustices - against which, movements such as feminist, anti-racist and others, struggle SILVA, MACHADO and MELO, In addition,.
Moreover, as Nancy Fraser observed in stratified societies, the relations between the different publics belonging to these spheres tend to be more of contestation than of deliberation PERLATTO, , p. In addition, in social management, conceptions of conflict and consensus may allow researchers and managers to face situations in which political actions and negotiations exist in the coordination of actions.
After all, Habermas a , p. According to Habermas a , the results of these negotiations must strike the balance between conflicting interests that cannot be reduced to a single denominator democracy coexists with different interests, values, reasons, etc. Finally, a less Manichean view of society can decisively contribute to the expansion of the field of social management, where consensus and conflict are dimensions present in human and social life. In adopting such a view, we seek to break with polarizing visions of the public sphere. Following Pinho : do not be so optimistic, neither so skeptical.
Therefore, we agree that conflict and consensus, as well as their tensions must be studied empirically, considering ideological aspects, the socio-historical context and the diversity of actors involved in management practices. Finally, existing public spheres can be understood as formations with different configurations of discursive practices with consensual and conflicting elements, and in this sense, the diagnosis must move to the empirical dimension.
In short, the practices, actions and discourses that contribute to the emancipatory potentials - which do not necessarily coincide with the hegemonic elements of the public spheres.
Argument 2 Conceiving that, a priori, public spheres are ambiguous and can be formed concretely by democratic and emancipatory elements and by oppressive elements. The first argument leads us to a second about how public spheres are configured.
In this way, formed public spheres can contribute to democratic advances. However, discourses can be elaborated using elements such as racism, homophobia and sexism among other typically segregating discourses and they can condense in an undemocratic and excluding way, whether in public environments schools, streets, etc. For this reason, Melo , p.
Therefore, as Habermas b points out, it is necessary to understand the grouping of day-to-day demands that emerge from lifeworld in academic, media and informal public spheres in order to seek the institutionalization of rights. However, it is not possible to assume that social management practices are developed in public spheres.
Only field research can provide evidence of this and show the configurations of public spheres. In addition, a process of legal training with broad public support does not necessarily indicate the formation of a democratic public opinion. The author argues that it is possible to explore these issues in the public sphere, as conceptualized by Habermas.
Jürgen Habermas - Wikiquote
This is a very plausible position. The book is certainly not introductory in regards to the complexity of the concepts it explores, nor in the sophistication and nuance with which it explores them. The book succeeds unevenly in this respect. On the one hand, the book provides excellent background information on the systems theories of Talcott Parsons pp.