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How is legitimacy made possible via legality?

Jürgen Habermas
Translated by Linh Hoai Mac


The author defends the thesis that the autonomization of the legal system cannot entail a complete dissociation of law from morality on the one hand, and politics on the other. Even law which has become positive does not sever its internal ties with morality and politics. The first section roughly outlines how modern law, with the help of rational law, has differentiated itself from the traditional complex of morality, law and politics. The middle section deals with the question of how an idea of the constitutional state emerges from the collapse of rational law, which does not have to merely stand impotent in relation to a society of high complexity and accelerated change. In the final section, the author examines how law and morality simultaneously complement and intertwine with each other today from an internal perspective.

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  • a Translator’s note: I translate ‘Rechtsstaat’ as ‘constitutional state.’ Elsewhere, it has been tran (...)

1I want to defend the thesis that the autonomization of the legal system cannot entail a complete dissociation of law from morality on the one hand, and politics on the other. Even law which has become positive does not sever its internal ties with morality and politics. In the first part, I will roughly outline how modern law, with the help of rational law, has differentiated itself from the traditional complex of morality, law and politics. In the middle section we will deal with the question of how an idea of the constitutional statea emerges from the collapse of rational law, which does not have to merely stand impotent in relation to a society of high complexity and accelerated change. In the final part, I want to examine how law and morality simultaneously complement and intertwine with each other today from an internal perspective.

1 Rationality and positivity: The intertwining of law, politics, and morality

2(1) If we want to make clear to ourselves why the differentiation of law from politics and morality in no way dissolves completely its internal entanglement with them, then a review of the development of positive law is called for. In Europe, this process of differentiation stretched from the end of the Middle Ages up until the major codifications of the eighteenth century. In common law countries, customary law was also transformed by Roman law under the influence of academically-educated lawyers; in the process, it is gradually adapted to the commercial conditions of an emerging capitalist economy and bureaucratized control of the self-formed territorial state. I want to reduce this complicated, varied, difficult-to-survey process to a single point that is of interest to us in our legal-philosophical context. What the positivization of law signifies philosophically can be better explained against the background of the tripartite structure of the disintegrating medieval legal system.

  • 1 Unger 1976.
  • 2 Cf. Schluchter 1980.

3From a certain distance one recognizes in our domestic traditions counterparts to those three elements which according to the insights of comparative legal sociology were typical of the legal culture of ancient empires.1 The legal system is always undergirded by a sacred law exegetically administered by theological and juridical experts; its core forms the bureaucratic law posited by a king or emperor, who is at the same time the supreme judge, in accordance with sacred legal traditions. As a rule, both types of law transform the unwritten customary law, which in the last instance trace back to tribal legal traditions. In the Middle Ages in Europe, things were somewhat different, insofar as the canon law of the Catholic church continued the highly legal-technical and conceptual level of classic Roman law without interruption, whereas the sovereign law composed of imperial decrees and capitularies was already at least connected with the idea of Roman imperial rule before the rediscovery of the Code of Justinian. Customary law itself was owed to the mixed Romano-Germanic legal culture of the Western Roman provinces and was passed on in written form since the twelfth century. But the structure known from all advanced civilizations – the branching into religious and secular law – essentially repeated itself, whereby sacred law is integrated into the order of the cosmos or the event of salvation that formed the horizon of one of the great world religions. This divine or natural law is not at the disposal of the political rulers. Rather, it provides the legitimizing framework within which the ruler exercises his secular rule over the functions of jurisdiction and bureaucratic legislation. In this context, M. Weber speaks of “The dual realms of traditional rule.”2

  • b Translator’s note: Following Baynes, and at Del Caro's suggestion, I translate ‘unverfügbaren’ and (...)
  • 3 Cf. Schlosser 1982.

4The traditional character of law survives even in the Middle Ages. All law borrows its mode of validity from the divine origin of natural law as understood by Christianity. New law can only be created in the name of the reformation or restoration of the good old law. The attachment to traditional legal understanding already contains an interesting tension that exists between both elements of the sovereign’s law. As the supreme judge, the ruler is subordinated to sacred law. Only thus can his legitimacy be translated into worldly power. From the reverent safeguarding of the sacrosanct legal order stems a legitimacy premium for exercising political rule in general. At the same time, the ruler at the top of an administration organized according to offices also makes use of law as a medium that confers a collective obligation to his commands, for example in the form of edicts and enactments or decrees. On the one hand, law as the means of bureaucratic exercise of rule can admittedly fulfil the regulatory function only so long as, on the other hand, it simultaneously retained its non-instrumental, indisponibleb character in the form of sacred legal traditions that the ruler must respect in the administration of justice. Between both of these moments – the indisponibility of law stipulated by legal conflict settlement, and the instrumentality of law that serves as the ruling order in its own right – an unresolved tension exists. It remains unobtrusive as long as the sacred basis of law is not contested and the foundation of customary law in tight adherence to tradition is firmly anchored in daily practice.3

  • 4 The Internal Aspect Neglected [by] The Functionalist Interpretation of the Positivization Impetus; (...)

5(2) If one now proceeds from the fact that in modern societies precisely these two conditions may increasingly go unfulfilled, then one can explain the positivization of law as a reaction to such changes.4 To the extent that religious worldviews give way to privatized powers of faith and the common law traditions become absorbed by scholarly law by way of modern usage, the tripartite structure of the legal system must fragment. Law shrinks down to one dimension and occupies only the space which until then had been taken up by bureaucratic sovereign rights. The political power of the ruler liberates itself from the bond with sacred law and becomes sovereign. To it falls the task of using its own power to fill by means of political legislation the gap that the theologically-administered natural law left behind. Henceforth, all law flows from the sovereign will of the political legislator. Legislation, enforcement, and implementation of statutes become three moments within a single politically-controlled circular process; they remain so afterwards, when they differentiate themselves institutionally in accordance with state powers.

  • 5 Hörster 1972.

6As a result, the relationship between the two moments of the indisponibility and the instrumentality of law changes. With sufficient differentiation of roles, and therein after all lies the significance of separation of powers, the legislative programs are of course imposed on the administration of justice. But can a similarly obligatory authority still emanate from arbitrarily changeable political law as it previously did from inviolably-sacred law? Does positive law even preserve the binding character of law akin to the sovereign administrative right of a traditional legal system if it can no longer borrow its own mode of validity from a prior and superior law? Legal positivism has time and again given affirmative answers to these questions.5 In one version, law is in general deprived of its affirmative character and only defined instrumentally: it is valid as the command of a sovereign (Austin). In the process, the moment of indisponibility disappears as a metaphysical residue. The other version of legal positivism firmly maintains the premise that law can fulfil the core function of conflict settlement only so long as applied law preserves the moment of indisponibility. But this moment is allowed to adhere only to the form of positive law, no longer to natural law contents (Kelsen). From this perspective, the legal system which is separate from politics and morality, with jurisdiction as its institutional core, remains the only place where law can, on its own strength, safeguard its form and therewith its autonomy. Both versions result in the consequence that the meta-social guarantee of legal validity conferred by sacred law can be omitted without replacement.

  • 6 On the following cf. Wesel 1984.

7The historical origins of modern as well as traditional law speak against this thesis. Law generally comes before the so-called development of political, i.e. state organized rule, whereas state-sanctioned law and legally-organized state power in the form of political rule arise concurrently.6 It appears that archaic legal development first made possible the onset of a political ruling power in which state power and state law were mutually constituted. Under this constellation it is hard to imagine that law could ever be either absorbed completely into politics or be dissociated from politics entirely. Additionally, one can show that certain structures of moral consciousness have played an important role in the occurrence of this symbiosis of law and state power. Moral consciousness plays a similar role in the transition from traditional law to secular positive law secured by the state monopoly of force and placed at the political legislator’s disposal. The moment of indisponibility that at the same time forms an indispensable counterbalance to the political instrumentalization of the legal medium in modern law is owed to the entanglement of politics and law with morality.

  • 7 Cf. Wesel 1984: 329 ff.

8(3) This constellation appears for the first time with the symbiosis of law and state power. In Neolithic tribal societies,7 there are typically three mechanisms in force for the regulation of inner conflicts: practices of self-help (feud and blood revenge); the ritual invocation of magical powers (oracles, trial by combat); and arbitrational mediation as a peaceful equivalent for violence and witchcraft. Such intermediaries still lack the competence to bindingly or authoritatively decide a dispute between the parties and to enforce the judgment against tribal loyalties. In addition to the characteristic of enforceability, courts and legal proceedings were also lacking. Furthermore, law still remains so tightly connected with custom and religious ideas that genuine legal phenomena are difficult to differentiate from other phenomena. The concept of justice underlying all forms of conflict settlement is interwoven into the mythical interpretation of the world. Revenge, retribution, and compensation serve the restoration of a disrupted cosmological order. This order, which was constructed from symmetries and mutuality, equally extends to individual persons and kinship groups as well as nature and society as a whole. The seriousness of crimes is measured by the consequences of the action, not by the intention of the perpetrator. A sanction has the meaning of compensation for damage caused, not that of a punishment of a perpetrator who was guilty of a norm violation.

  • 8 Pospíšil 1982.

9These concretized concepts of justice do not yet allow the separation of legal questions from questions of fact. In archaic legal proceeding, normative judgments, prudent balancing of interests, and factual claims flow into one another. There is a lack of concepts such as accountability and liability; intent and negligence are not differentiated. What counts is the damage objectively caused. There is no separation of civil law from criminal law; all legal infringements are, to some degree, offences which demand compensation. Such distinctions are only possible when a completely new concept arises and revolutionizes the world of moral ideas. I mean the concept of a legal norm that is situation-independent, superior to, thus prior to the disputing parties as well as the impartial arbitrator and generally recognized as binding. Around this core solidifies what L. Kohlberg calls a conventionally-moral consciousness. Without such a normative concept, the arbitrator can only persuade the disputing parties to compromise. In the process, he may assert as influence the personal reputation founded on his status, his wealth or his age. But he lacks political power; he cannot yet appeal to the impersonally binding authority of law and the moral insight of the concerned parties.8

10 I now propose the following thought experiment: Let’s presuppose for a moment that conventional legal and moral ideas arise prior to the emergence of such a thing as state authority. Then a arbitrating chieftain could for example already base himself on the binding character of the recognized legal norms; but he could not yet add the factually compelling character of a state capability to impose sanctions to the moral binding nature of his judgment. Nevertheless, the role of the chieftain whose leadership role was hitherto solely based on factual influence and prestige would have to change profoundly. Three processes are important in this scenario. Such a chief, as a preserver of intersubjectively acknowledged norms, would first partake in the aura of the laws administered by him. The normative authority of law would be transferred from the competence of the magistrate and unified under the sole authority of the chief. The factual power of the influencer would imperceptibly be transformed into the normatively authorized power of a commander who can then make collectively binding decisions. Secondly, the quality of the judicial decision would thereupon itself have to change. Behind the morally binding legal norms would no longer stand only the tribe’s pressure to conform or the factual influence of a prominent member, but also the threat of sanction by a legitimate ruler. Thus an ambivalent mode of validity of state law which fuses recognition and coercion would emerge. Thirdly, however, with these changes, the political ruler would gain a vehicle with the help of which he could establish an organization with distinct offices and exercise his rule bureaucratically. Thus, besides the aspect of the indisponibility of objective law, law also obtains an instrumental aspect as means of organization.

  • 9 Eder 1976; Habermas 1976.

11 Even though these considerations also have an empirical content,9 I am concerned first and foremost with the clarification of conceptual relations. Only in world views that become ever more complex do a moral consciousness of the conventional stage develop; only an awareness of traditionally-anchored and morally-binding norms enabled the conversion of actual power into normative power; only the disposal of legitimate power allowed the political enforcement of legal norms; only binding law can be used for the organization of state power. If one analyses this entanglement of religiously-embedded morality, legally-legitimized rules and legally-formed state-organized administration in detail, the untenability of both of the legal positivist concepts mentioned above will be clear.

12(4) The reduction of legal norms at the command of the political legislator signifies that law dissolves, so to speak, into politics. But the concept of the political itself thereby disintegrates. Under this premise, political rule can no longer be understood as legally-legitimized power in any case, since a law that has become completely disposable via politics loses its legitimizing force. As soon as legitimation is conceived as the internal achievement of politics, we give up our concepts of law and politics. The same consequence ensues for the other view, that positive law would be able to maintain its autonomy on its own, i.e. through the dogmatic contributions of a law-abiding justice that became independent vis-à-vis politics and morality. As soon as legal validity forfeits each moral connection to aspects of justice extending beyond the decision of the legislator, the identity of law is itself diffused. Afterwards, those self-same legitimizing viewpoints by which the legal system could be defined in terms of the preservation of a specific structure [would] disappear.

  • 10 Wieacker 1969: 249 ff.

13 Presupposing that modern societies cannot at all dispense with law (and also cannot retain the pseudonym of “law” while operating a functionally equivalent but totally different kind of praxis), the positivization of law already creates a consequential problem on conceptual grounds. For the disenchanted sacred law – and for a customary law that has become empty and insubstantial – an equivalent must be found which can obtain a moment of indisponibility for positive law. Such an equivalent first developed in the form of rational law that is indeed not only legal-philosophical, but has also had an immediate legal-dogmatic meaning for the major codification and the judicial practice of legal training.10 I wish, in this context, to draw attention to two points: a) a new, post-traditional stage of moral consciousness articulates itself in rational law, which predicates modern law on precepts and turns it into rational procedure; b) social contract theories were developed in opposed directions depending on whether the positivization of law as such or the requirement for a justification arising therefrom brings to the fore a phenomenon in need of explanation. Either way, however, they have been able to produce no plausible connection between the moments of the indisponibility and the instrumentality of law.

14 Ad a). Rational law responds to the collapse of natural law justified religiously and metaphysically and to the demoralization of a politics that is increasingly naturalistically construed and converted into the assertion of self-interest. As soon as a state with a monopoly of force obtains an exclusive access to law in the role of the sovereign legislator, law that has been degraded to a means of organization is threatened with the loss of any relation to justice and therewith its genuine character. When the positivity of law has become dependent on a state sovereign, the problem of justification does not disappear, it only shifts to a narrowed foundation of a post-metaphysical secular ethics decoupled from [traditional] worldviews.

15 The basic figure of civil private law is the contract. Contractual autonomy empowers private legal persons to create subjective rights. In the idea of the social contract, this thought figure is now used in an interesting way, to morally justify rule exercised in the forms of positive law – legal rule: A contract which any autonomous individual makes with all other autonomous individuals can only contain what all can reasonably desire given their own self-interest. In this manner, only those regulations that have the unforced consent of everyone can come to pass. This basic idea reveals that the reason of modern natural law is essentially practical reason – the reason of an autonomous morality. This requires that we distinguish between norms, justifying principles and procedures – procedures according to which we examine whether norms in the light of valid principles may count on general acceptance. Inasmuch as such a procedure for the founding of legally constituted political regulations is taken into account with the idea of the social contract, positive law is subjected to moral principles. From a developmental perspective, this raises the likely hypothesis that during the transition to modernity, in turn, a change in moral consciousness has fulfilled the role of pacemaker for legal development.

16 Ad b). Rational law has appeared in various versions. Authors like Hobbes focus more on the phenomenon of arbitrary changeability; authors like Kant are more preoccupied by the justification deficit of law that has newly become positive. As is well known, Hobbes developed his theory according to premises which strip positive law as well as political power of all moral connotations; the law enacted by the sovereign is supposed to get by even without a reasonable equivalent for disenchanted sacred law. Hobbes naturally gets caught in a performative contradiction with a theory which offers its addressees just such a rational equivalent. The manifest content of his theory, which explains the morality-free operation of completely positivized law, contradicts the pragmatic role of the same theory, which certainly wants to explain to its readers why they could have had good reasons as free and equal citizens to decide upon subjection to an absolute state power.

17 Kant later makes explicit the normative assumptions implicitly made by Hobbes and from the beginning develops his legal doctrine within the framework of his moral theory. The general legal principle that objectively underlies all legislation arises from the categorical imperative. From this chief principle of legislation in turn follows the original subjective right of anyone, to obligate every other legal peer [fellow human being endowed with rights] to respect his freedom, provided only that it agrees with the equal freedom of all in accordance with general laws. Whereas for Hobbes, positive law is ultimately a means of organization of political rule, it retains, for Kant, a significant moral character. But even, in these fully developed versions, rational law struggles with the self-imposed task of rationally explaining the conditions of legitimacy of legal rule. Hobbes sacrifices the indisponibility of law for its positivity, but with Kant natural or moral law derived a priori from practical reason gains the upper hand, so much so that law threatens to be absorbed in morality: law is downgraded to a deficient mode of morality.

18 Kant builds the moment of indisponibility into the moral foundations of law in such a way that positive law is subsumed under rational law. Thanks to this rational-legal prejudice, no room remains for the instrumental aspect of law of which the political legislator makes use for his organisational tasks. After the canopy of Christian natural law collapsed, the pillars of naturalistically-disenchanted politics on the one hand, and of law transposed into political decision on the other hand, remain standing as ruins. Kant reconstructs the crumbled edifice through a simple substitution: autonomously-justified rational law is supposed to occupy the place vacated by religious-metaphysical natural law. Thereby, the mediating function of jurisprudence indeed changes in comparison with the tripartite traditional law, which had conferred sacred legitimacy on the ruler and his bureaucratic rule; it now recedes behind the political legislator and manages his programs. Now however all the state powers differentiated in themselves fall under the shadow of a noumenal res publica justified by reason, which should find as faithful a reflection as possible in the phenomenal res publica. The positivization of law itself still stands as the realization of the rational-legal principles under the imperatives of reason.

  • 11 Kersting 1984: 16 ff.

19 But if politics and law are pushed into the subordinate position of executive organs for the legislation of practical reason, politics loses its legislative competence and law its positivity. Therefore Kant must fall back on the metaphysical premises of his two-kingdom doctrine in order to distinguish legality and morality from one another in a highly contradictory way.11

2 The substitution of rational law with the idea of the constitutional state

20(1) Rational law has not only proved vulnerable on philosophical grounds; the conditions which it was supposed to interpret have outgrown it. Soon it became clear that the dynamics of a society integrated across markets could no longer be contained by the normative notion of law and could certainly not be stopped in the framework of a legal system formulated a priori. Any attempt to theoretically derive the foundations of private and public law from supreme principles once and for all had to fail because of the complexity of society and history. Social contract theories—and by no means just the idealistic ones among them—were laid out too abstractly. They had not accounted for the social conditions of their possessive individualism. They had not acknowledged that the fundamentally private-law institutions of property and contract, as well as the subjective-public right of defence against the bureaucratic state could only promise justice through the accommodation of a fictive economy based on small goods. At the same time, contract theories—and by no means just the a priori procedural ones—were formulated too concretely. They had not accounted for the mobilization of living conditions and underestimated the pressure to adjust which emanated from the growth of capitalism, and from social modernization in the first place.

  • 12 Coing 1970: 11 ff.
  • 13 von Savigny 1840a: 333.

21 In Germany, the moral content of rational law was detached from legal theory and is at first continued on the parallel tracks of private-law doctrine and the idea of a constitutional state, but it had dried up in positivistic terms during the course of the nineteenth century. From the viewpoint of pandectistics, law became absorbed by the civil code administered by lawyers to a significant extent. Here, in the private legal system itself, and not on the part of a democratic legislator, the moral content of law was supposed to be secured.12 F. C. von Savigny, who construed all private law as an edifice of subjective right, was following Kant’s view that the form of subjective right was moral in and of itself. General here, subjective rights exclude private-autonomous realms of authority and guarantee individual freedom by means of subjective authorizations. The morality of law consists in the belief “that the individual will is assigned to a domain, in which it [the individual will] has to prevail independently from any external will.”13 But it soon became clear from actual legal developments that subjective rights are something secondary vis-à-vis objective law as well as being completely unable to offer a conceptual foundation for the private law system as a whole. The concept of subjective right was thereupon positivistically reinterpreted and purified of all normative associations. According to B. Windscheid’s definition, subjective rights merely shift the commands of the objective legal order onto the authority of individual legal subjects.

  • 14 Maus 1978: 13 ff.
  • 15 Heller 1971: 226.

22 A parallel development can be traced in the idea of the constitutional state which Kant had already introduced, albeit under hypothetical reservations. The German theorists of the nineteenth century are interested above all in constitutional taming of monarchical administrative power. Mohl and Welcker even posit in the Metternich era that universal and abstract laws turn out to be a suitable medium for an equal advancement of all citizens’ “with an education that is as multifaceted as possible, consistent with reason and inclusive of all intellectual and physical powers.”14 After the foundation of the German Reich, Gerber and Laband are already developing the doctrine of law as the command of a sovereign, substantively free, legislative body. It is this positivist concept of law which was eventually used by progressive constitutional lawyers of the Weimar period such as Heller for the parliamentary legislator: “In a constitutional state, laws mean only, but also all, legal norms posited by the people’s legislature.”15

  • c Translator’s note: “rule of law” in English in the original.

23 I remind readers the doubtless atypical German development only because in it may be studied the gradual erosion of a rational-legal moralized concept of law from the twofold perspectives of legal dogmatists and judges on the one hand, and of parliamentary legislators on the other. In the Anglo-Saxon countries, where the idea of the constitutional state has been unfolded in terms of the “rule of law”c from the beginning in accordance with democratic developments, the idea of fair legal proceedings – fair trial and due process – offered itself as a uniform interpretative model that was concurrently applied to legislation and jurisdiction. In Germany, the positivistic destruction of rational law took place via other routes. Certainly, Kant’s construction, according to which politics and law were subjected to the moral imperative of rational law, is refuted in private law dogmatics as well as the theory of the constitutional state – but sometimes from the perspective of justice, and other times from the perspective of political legislators. As a result, for those who were not convinced by sheer legal positivism as an alternative after the collapse of the protective canopy of rational law, the same problem always presents itself in another form on both sides.

24 One can generally articulate the problem as follows. On the one hand, one cannot explain the moral foundations of positive law in the form of a higher-order rational law. On the other hand, they also cannot be liquidated without replacement without taking away from law the essential moment of indisponibility. But then it must be shown how, within positive law itself, the moral viewpoint of an impartial judgment- and will-formation can be stabilized. This demand is not thereby already fulfilled simply because specific moral principles of rational law are positivised as the contents of constitutional law, because the point is the contingency of the contents of an arbitrarily changeable law. Rather, the morality that is built in to positive law has itself the transcendent power of a self-regulating procedure governing its own rationality.

  • 16 von Savigny 1840b (cited in Maihofer 1973: 44).
  • 17 Puchta, From Law 1841 (cited in Maihofer 1973: 52 ff.).

25(2) Under the pressure of this problem, those of Savigny’s successors who did not want to be satisfied with a positivist reinterpretation of subjective law expanded scientific juridical law into a source of legitimacy. In his theory of legal sources, Savigny had even assigned the judiciary and legal dogmatics the modest and derivative function of “showing and bringing to consciousness in a scientific way” how positive law originated from custom and legislation.16 On the contrary, at the end of the century, G. F. Puchta represents the view that the production of law must not be the sole object of the political legislator, otherwise the state could not be founded on “law,” i.e., could not be a constitutional state. Rather, the judiciary would assume, going beyond the implementation of valid law, the productive function of continuation and expansion of valid law guided by constructive principles.17 This judge-made law should obtain its independent authority from a scientific method of justification, that is from the arguments of a scientifically procedural jurisprudence. Puchta already provides the starting point for a theory which from the perspective of judicature traces the legitimating grounds of legality back to the procedural rationality constitutive of juridical discourse.

  • 18 Kant 1870.

26 From the legislative perspective, an analogous interpretation suggests itself, even if parliamentary discussion is aimed directly at compromising and not, like juridical discourse, at the scientifically-disciplined justification of judgments. Also in this respect, for those who do not want to resign themselves to democratic legal positivism, the question arises as to the grounds on which laws enacted by parliamentary majorities may claim legitimacy. Kant had already taken the first step, following Rousseau’s concept of autonomy, of working out the moral point of view of impartiality from the procedure of democratic legal positivism itself. As is well-known, he explains that the criterion for the touchstone of lawfulness of each public law was whether it “could have arisen from the general will of an entire people.”18 However, in proposing this criterion Kant himself contributed to the rapid confusion of two completely different meanings of “universality” of law: the semantic universality of abstract universal law superseded procedural generality, which treated law enacted democratically as an expression of “the unified will of the people.”

  • 19 Neumann 1986: 70 ff.

27 In Germany, where the debate over democratic theory only revived in the 1920s, this confusion had two unfortunate consequences. For one thing, one could be mistaken about the cumbersome burdens of proof of a proceduralist democratic theory that must first be removed. First, argumentation theory would have to show how, in the will-formation of the parliamentary legislator, political goal-setting and moral-foundational discourses were mutually intertwined with legal judicial review. Second, it would have to be made clear how an argumentatively-achieved agreement differs from a negotiated compromise, and how the moral viewpoint itself in turn brings to the fore the conditions of fairness for compromise. Third, and above all, it would have to reconstruct how the impartiality of legislative will-formation ought to be institutionalized through legal procedure – starting from majority rule, through parliamentary rules of procedure, to suffrage and opinion formation in the political public sphere. This analysis would have to be guided by a model that presents the necessary conditions of communication for discursive will-formation and a fair balance of interests in their context. Only with such a foil can the normative sense and the actual practice of such procedures be critically analysed.19

  • 20 Esser 1972.

28 But furthermore, this confusion of procedural generality with the semantic universality of parliamentary legislation had the consequence that one could be mistaken about the separate problem of the application of law. If the morally-substantial procedural rationality of legislation were sufficiently institutionally secured by itself, then the laws, whether or not the regulatory law of the social state is now concerned, would never have a semantic form and a resulting certainty that left to the judge only its algorithmic application. The construction achievements of legal development are always inextricably interwoven with the interpretative power of rule application, as philosophical hermeneutics demonstrates.20 Therefore the problem of procedural rationality arises for judicial decision-making practice and legal dogmatics all over again and in a different way.

  • 21 Günther 1986.

29 In legislative procedures, a morality integrated in positive law can come into play so that the political discourse of goal-setting is restricted by the principle of the more general ability to consent, hence that moral consideration, which we must respect in the justification of norms. With the context-sensitive application of norms, however, the impartiality of judgment does not thereby come into play in asking ourselves what everybody could want, but in asking whether we have adequately considered all relevant aspects of a given situation. Before we are able to decide which norms are applied in a case, inasmuch as these norms in some circumstances collide with one another and must then be prioritized in the light of principles, we must clarify whether the description of the situation is reasonable and complete with regard to all whose interests are affected. As Klaus Günther has shown,21 practical reason rises to prominence through the examination of the generalisability of interests in the settings of the justification of norms, and in the settings of application of norms through the reasonable and complete acquisition of relevant contexts in light of competing rules. To this, the legal procedures must conform, concerning which the impartiality of jurisdiction is supposed to be institutionalized.

30(3) With these considerations I aim at the idea of a constitutional state defined by the separation of powers, whose legitimacy draws on the impartiality of the guaranteed rationality of its legislative and judicial processes. Thereby nothing more is obtained than a critical benchmark for the analysis of constitutional reality. That idea, to be sure, does not merely confront abstractly a reality that corresponds so little to it – as an impotent obligation. On the contrary, the procedural rationality already partially integrated into positive law marks the sole remaining dimension (following the collapse of rational law) in which positive law can be guaranteed a moment of indisponibility and a structure free of contingent actions.

3 The rationality of legally institutionalized process: Preliminary questions

  • d Translator’s note: “moral point of view” in English in the original.

31(1) If legitimacy by dint of legality is supposed to be possible in societies of our kind, a belief in legality that has lost the collective certainties of religion and metaphysics must rest in some sense on the “rationality” of law. But Max Weber’s assumption that an independent, morality-free rationality that is intrinsic to law itself, could supply the ground for the legitimating power of legality has not been substantiated. Legitimacy always owes its rule, exercised according to the forms of positive law subject to justification, to the implicitly moral content of formal qualities of law. Meanwhile, the formalism of law must not be too concretely solidified in specific semantic characteristics. Rather, those procedures, which institutionalize demands for justification and the route to their argumentative vindication have legitimizing power. The source of legitimacy, moreover, must not be unilateral; it is not supposed to be sought in one place, whether as a replacement for political legislation or jurisdiction. For under the conditions of welfare-state politics, even the most thoroughly democratic legislator can no longer bind justice and administration solely through the semantic form of law; he cannot manage without regulatory law. A rational core in the moral-practical sense only emerges from legal procedure if one analyses how, using the idea of impartiality of the justification of norms as well as the application of binding regulations, a constructive connection is established between valid law, legislative procedure, and the procedures for the application of law. This idea of impartiality forms the core of practical reason. If we put aside the problem of the impartial application of norms, the idea of impartiality is unfolded above all under the aspect of a justification of norms in those moral theories and theories of justice that propose a procedure for assessing practical questions from a moral viewpoint. The rationality of such a pure procedure, which precedes all institutionalization, is measured by whether the moral point of viewd is explicated appropriately in it.

  • 22 Habermas 1986.
  • 23 Rawls 1975.
  • 24 Kohlberg 1981.
  • 25 Habermas 1983.

32 At present, I see three serious candidates for such a proceduralist theory of justice. All originate from the Kantian tradition, but they vary according to the models by means of which they explain the procedure of impartial will-formation.22 John Rawls continues from the model of contractual agreement and integrates morally substantial constraints into the characterization of the original position under which the rational egoism of the free and equal parties must lead to the choice of correct principles. The fairness of outcomes is guaranteed through the procedure by which they are realised.23 Lawrence Kohlberg instead uses G. H. Mead’s model of the general reciprocity of mutually entangled perspectives. An idealized original position is superseded by an ideal role-adoption, which demands of an author of moral judgments that he place himself in the situation of all those who would be affected by the implementation of a questionable norm.24 Both models have in my view the drawback that they do not completely satisfy the cognitive demands of moral judgment. According to the model of contractual agreement, moral insights are adapted into rational elective decisions, using role play to simulate empathetic efforts at understanding. Karl-Otto Apel and I have therefore proposed to recognize moral argumentation itself as the appropriate procedure of rational will-formation. The assessment of hypothetical claims of validity constitutes such a procedure, because everyone who seriously wants to argue must engage with the idealizing assumptions of a demanding form of communication. That is to say, each participant in an argumentation practice must pragmatically stipulate that in principle, all potentially concerned parties could take part in a cooperative search for truth, in which solely the force of the better argument may be given a chance.25

33 I cannot engage in moral-theoretical discussion here; in our context the conclusion suffices that there are serious candidates for a proceduralist theory of justice. Only then is my thesis that proceduralized law and principled moral reasoning refer to each other not left hanging in the air. Legality can only create legitimacy to the extent to which the legal system reflexively responds to the justification requirements created by the positive development of law, specifically in a way that institutionalizes legal decision-making procedures which are permeable to moral discourse.

34(2) However, the boundaries between law and morality must not be blurred. The procedures which theories of justice provide in order to explain how one can make judgements from a moral viewpoint only have in common with legally-institutionalized procedures that the rationality of the procedures should guarantee the “validity” of the procedurally obtained results. But legal procedures approach the demands of more comprehensive procedural rationality because they are interwoven with independent institutional criteria by means of which disinterested observers can determine from their perspective whether a decision is properly arrived at or not. The procedure of moral discourses not regulated by law does not fulfil this requirement. Here, procedural rationality is incomplete. Whether something has been judged from the moral viewpoint can only be decided from the perspective of the interested parties. For this purpose, there are no external or prior criteria. None of these procedures can manage without idealizations, even if these – such as the communication requirements of an argumentation praxis – could be proven as unavoidable or lacking in alternatives in the sense of a weak transcendental constraint.

  • 26 Günther 1986.

35 On the other hand, these are just the weaknesses of a procedural rationality of this sort, which from functional viewpoints explain why certain matters require legal regulation and cannot be left to the moral rules of post-traditional style. Regardless of how the procedure looks, according to which we want to test whether a norm can find the unforced, i.e., rationally motivated agreement of all possible participants, it guarantees neither infallibility nor clarity nor a timely outcome of the result. An autonomous morality has at its disposal only a fallibilistic procedure of norm justification. This high degree of cognitive indeterminacy is furthermore reinforced by the fact that, with a context-sensitive application of highly abstract rules to complex situations – described as appropriately as possible and in their relevant aspects as completely as possible – an additional structural uncertainty is connected.26 This cognitive weakness corresponds to a motivational weakness. Every post-traditional morality demands a distancing from the self-evident truths of unproblematically habituated forms of life. Moral insights decoupled from the concrete ethics of everyday life no longer immediately carry with them the motivational power which also allows judgments to be practically effective. The more morality itself internalizes and becomes autonomous, the more it retreats into private spheres.

  • 27 Apel 1986: 232 ff.

36 In all areas of activity where conflicts, weighty problems, and social subject matters in general demand clear, timely and binding regulation, legal norms must therefore absorb the uncertainties which would arise were they left to a purely moral behavioural control. This enhancement of morality through obligatory law itself can even be justified morally. K. O. Apel speaks in this context of the problem of the reasonableness of a demanding universalistic morality.27 Even morally well-justified norms are only reasonable to the extent that those who then adapt to their practice may expect that everyone else also acts in accordance with norms. For only under the condition of generally-practised compliance with norms can the reasons cited to justify them count. If an obligation that is effective in practice cannot be consistently expected from moral insights, then compliance in accordance with norms is only reasonable in responsible ethical terms when they obtain legal obligation.

37 Important characteristics of positive law become understandable when we comprehend law from this perspective of a compensation for the shortcomings of autonomous morality. Legally-institutionalized behavioral expectations obtain binding force through a linkage with the sanctioning capacity of the state. They extend only to what Kant calls the external aspect of action, not to motives and sentiments, which cannot be enforced. The professional administration of fixed, written, publicly and systematically-developed law releases private legal persons from the burden of requiring individuals to resolve the moral conflicts of action by themselves. After all, positive law owes its conventional characteristics to the fact that it can be enforced through the decisions of a political legislator and can in principle be amended arbitrarily.

38 This dependence on politics also explains the instrumental character of law. Though moral norms are always ends in themselves, legal norms are also means to political ends. They do not serve, that is to say, as does morality, only impartial settlement of conflicts of action, but also the implementation of political programs. The collective goal-setting and the implementation measures of politics owe their binding power to a legal form. In this respect law stands between politics and morality; and, as Dworkin has shown, in legal discourse the arguments concerning the application of legal interpretations are accordingly conjoined with both political arguments about goal setting on the one hand, and with arguments of moral justification, on the other.

39(3) The question of the legitimacy of legality has so far brought to the fore the theme of law and morality. We have made it clear to ourselves how conventional externalized law and internalized morality complement each other. Having said that, the simultaneous entanglement of law and morality interests us more than this complementary relationship. This entanglement takes place because in a constitutional order the resources of positive law are tasked with distributing the burden of argument and institutionalizing methods of justification that are open to moral argumentation. Morality no longer hovers over the law, as the construction of rational law as an extra-positive set of norms suggests; it migrates into positive law, without being absorbed in it. Morality, which not only confronts the law, but also establishes itself in law, is of course purely procedural in nature; it has dispensed with all determinate normative content and sublimates itself to a procedure of justification of possible moral content. In this way procedural law and proceduralized morality can mutually control each another. In legal discourse the argumentative treatment of morally practical questions by way of legal institutionalization is, as it were, tamed. Such treatment is limited methodologically through the binding of valid law; objectively with regard to subjects and burdens of proof; socially with regard to the conditions for participation, exemptions, and allocation of roles; and temporally with regard to decision deadlines. But conversely moral argumentation is also institutionalized as an open procedure that obeys its own logic and so controls its own reasonableness. The legal constitution does not interfere with the inner working of argumentation to such an extent that this would have to come to a halt at the limits of positive law. Law itself licences and stimulates a justification dynamic that also transcends the wording of valid law in an unforeseeable way.

40 This conception must certainly be differentiated in light of the different contexts of jurisprudential, judicial, legalistic discourse or according to the different subject areas from morally-related to purely technical problems issues. Then the respective decision-making practice can also be critically reconstructed from the viewpoint of how far the legal procedures of logic give free play to argumentation, or systematically distort the play of language through implicitly entrained external restrictions. Such effects themselves naturally emerge not only in procedural arrangements, but also in the way these are practised. At times a special class of arguments offers itself for such a reconstruction; in judicial decision-making practices, for example, especially suitable are opinions of the court, which eliminate normative aspects in favor of purportedly functional requirements. Of course, such examples clearly show that justice and the legal system indeed respond to society, yet are not autonomous vis-à-vis society. Whether one must also then submit to systemic imperatives if they violate or adversely affect well justified principles, whether they originate in the economy or the state apparatus itself, is of course decided ultimately not in courts, nor by the legal public, but in political struggles over the demarcation of the border between system and lifeworld.

  • 28 Choper 1980; Ely 1980; Critical to this end: Parker 1981: 223 ff.

41 We have now seen that the legitimizing power, which has its seat in the rationality of legal procedure, communicates legal rule not only via procedural norms but even more so via democratic legislative procedures. That the workings of parliament could have a rational core in a moral-practical sense is admittedly not so plausible at first glance. Here it appears to be a matter of acquiring political power and of power-controlled competition among antagonistic interests, in such a way that parliamentary debates are if need be accessible to empirical analysis, but not to a critical reconstruction according to the model of fair negotiation of compromises or even of discursive will-formation. I cannot offer a satisfactory model here; but I would like to point to the long series of process-oriented constitutional doctrines which pursue a critical-reconstructive approach.28 In this approach, majority rule, parliamentary procedural norms, electoral procedure etc. are analyzed from the viewpoint of how far they can safeguard equal consideration of all interests involved in each case and of all relevant aspects of the case respectively in parliamentary decision-making processes. I do not see the weakness of these theories as being in their process-oriented approach as such, but in the fact that they do not develop their normative viewpoint based on a logic of moral argumentation, and do not apply the communicative conditions for an unconditional justification dynamic. Furthermore, internal parliamentary will-formation only forms a narrow segment of public life. The rational quality of political legislation not only depends upon how elected majorities and protected minorities work within parliament. It also depends on the level of participation and education, on the degree of information, and on the sharpness of articulation of controversial questions in the wider public. The quality of public life is generally determined by the actual opportunities which the political public sphere opens up with its media and institutions.

4 Conclusion

42That the idealised concept of the constitutional state that I have reformulated is not exaggerated but springs from the soil of legal reality itself can be ultimately seen in the fact that the autonomy of the legal system can be measured by this idea alone. If the dimension in which the legally-institutionalized methods of justification open toward moral argumentation were to close, we would no longer know in the least what the autonomy of law could mean other than the autonomy of the system. A legal system does not independently acquire autonomy for itself. It is only autonomous to the extent that the procedures institutionalized for legislation and jurisdiction guarantee impartial judgement and will-formation, and in doing so, provide access to an ethical form of procedural rationality in both law and policy-making to an equal extent. No autonomous law without realized democracy.

–Acknowledgement. – This is an English translation of the following article by Jürgen Habermas: “Wie ist Legitimität durch Legalität möglich?” Kritische Justiz 20, no. 1 (1987): 1–16, The German article is based on Habermas’ Tanner Lectures on Human Values (1986). I translated this article prior to coming across Kenneth Baynes’ translation of the lectures. This translation is not simply an alternative translation of the Tanner lectures originally translated by Baynes, but a translation of a revised version of them that Habermas chose to publish subsequently in German but which has never been previously translated.

I’d like to first thank Jürgen Habermas for granting me his permission to publish his article in the English translation. Thanks also to Nora Mercurio, the Rights Director of Suhrkamp (the main publisher of Habermas’ books), Johannes Rux, Head of Academic Publishing (Legal Publishing) of Nomos (the publisher of the German article) and the editors of Revus - Journal for constitutional theory and philosophy of law. I'm grateful to my German teachers, Adrian Del Caro, Carolyn Hodges, and Faye Stewart who made this translation possible. I'd also like to thank Del Caro and Stewart as well as Luke O'Sullivan for comments on earlier drafts. I’m especially grateful to Del Caro for his excellent suggestions. Any errors or infelicities are of course the sole responsibility of the translator.

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a Translator’s note: I translate ‘Rechtsstaat’ as ‘constitutional state.’ Elsewhere, it has been translated more loosely as ‘democracy’ [demokratischen Rechtsstaat], ‘government,’ etc. See Habermas 1998).

1 Unger 1976.

2 Cf. Schluchter 1980.

b Translator’s note: Following Baynes, and at Del Caro's suggestion, I translate ‘unverfügbaren’ and ‘Unverfügbarkeit’ as ‘indisponible’ and ‘indisponibility’ respectively. For the English etymology and a discussion of Habermas’ usage, see Ryba 2019: 39. Ryba, op. cit., interprets ‘indisponible’, which Habermas left undefined in the original text, as characterising ‘the moment when law is understood as having an existence in relative independence from religion and politics but one in which the connection is not completely broken’ (emphasis in original). Credit to Del Caro, who also found the usage indisposability and nondisposability, for directing me to Ryba’s article. William Rehg has also translated the term as ‘noninstrumentalizable.’ See Habermas 1998 and Habermas 1992. Habermas also appears to use ‘unverfügbaren’ and ‘nicht-instrumentellen’ [‘non-instrumental’] interchangeably. See Habermas 1992: 582.

3 Cf. Schlosser 1982.

4 The Internal Aspect Neglected [by] The Functionalist Interpretation of the Positivization Impetus; cf. Luhmann 1983.

5 Hörster 1972.

6 On the following cf. Wesel 1984.

7 Cf. Wesel 1984: 329 ff.

8 Pospíšil 1982.

9 Eder 1976; Habermas 1976.

10 Wieacker 1969: 249 ff.

11 Kersting 1984: 16 ff.

12 Coing 1970: 11 ff.

13 von Savigny 1840a: 333.

14 Maus 1978: 13 ff.

15 Heller 1971: 226.

c Translator’s note: “rule of law” in English in the original.

16 von Savigny 1840b (cited in Maihofer 1973: 44).

17 Puchta, From Law 1841 (cited in Maihofer 1973: 52 ff.).

18 Kant 1870.

19 Neumann 1986: 70 ff.

20 Esser 1972.

21 Günther 1986.

d Translator’s note: “moral point of view” in English in the original.

22 Habermas 1986.

23 Rawls 1975.

24 Kohlberg 1981.

25 Habermas 1983.

26 Günther 1986.

27 Apel 1986: 232 ff.

28 Choper 1980; Ely 1980; Critical to this end: Parker 1981: 223 ff.

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Electronic reference

Jürgen Habermas, “How is legitimacy made possible via legality?”Revus [Online], 50 | 2023, Online since , connection on 07 December 2023. URL:; DOI:

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About the author

Jürgen Habermas

Professor emeritus at Goethe University, Frankfurt am Main (Germany). E-mail (translator's contact): lmac [at] Address: Goethe University, Max Horkheimer Strasse 2, 606629 Frankfurt/Main, Germany. 

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Linh Hoai Mac

Department of Philosophy, University of Tennessee, Knoxville (Tennessee, USA). E-mail: lmac [at]

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The text only may be used under licence CC BY-SA 4.0. All other elements (illustrations, imported files) are “All rights reserved”, unless otherwise stated.

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