The administrative power law: between instrumental juridification and rational communication – a reading of chapter IV of Jürgen Habermas’ between facts and norms

Abstract

The purpose of this paper is to provide a reading of Chapter IV of Jürgen Habermas’ Between facts and norms. This reading must be able to, simultaneously, frame Public Law approach differences developed by the author, and display, inside these approaches, a critical guideline. Departing from the centrality of the concept of “reconstruction” in Habermas’ social theory, this article investigates two different moments on Public Law’s reconstruction inside Habermas’ view. Firstly, the article analyzes how the theory of communicative action, by opposing administrative power and communicative action, endorses the instrumentality of Public Law in order to insure lifeworld colonization by legal and administrative systems (juridification diagnosis). Secondly, this article analyzes Habermas’ emphasis on Public Law constitutionality over public sphere, which makes feasible the verification of a lifeworld potential to create rational communicative spaces in opposition to reifying and instrumental pretensions by legal system and administrative power (constitutionalization diagnosis). This article concludes sustaining that the critical guideline which integrates these two different moments must be found in the legitimacy claim of the Law committed to administrative power regulation.