Review - BFN - Rosenfeld

In complex pluralist and multicultural societies
- successful social integration depends on LAW's predictability and justice
- requirements incompatible
- predictability requires the reduction of complexity - stabilize expectations
- as regulation becomes more encompassing, more finely tuned calibrations are necessary between equalities and inequalities
- norms become more contested as communal conceptions of religion, morals and law breakdown into antagonistic visions

BFN

Breakdown in bonds among religion - ethics - law
--> difficult to see what makes law legitimate

In pluralist society, no common religion or ethics
--> law holds polity together

Law - obeyed because of sanctions
- But sanctions insufficient - without belief in legitimacy

Legitimacy of Law - Self-imposed
- appealing answer, not clearly/consistently supported by empirics.

Reconstructive theory
- starts with existing intuitions, institutions, practices
- with help of counterfactual devices
- could fill gap left by empirical inquiry - supplement / organize them into coherent whole

Counterfactuals (CFD)
- demarcate gap between reconstructed picture and prevailing practices
- gap - space for either a critique or a reflective equilibrium, a considered vindication of the status quo
- ex. Smith's conception of the functioning of market - can be basis of critique of actual markets or support them - greater proximity to counterfactual than any plausible alternative


JH's reconstructive theory of law
- begins with search for CFDs that permit depictions of dictates of contemporary law as being genuinely self-imposed
- CFDs must be impartial between competing conceptions of the good
- Rejects social contract and Kantian morality as CFDs
- Hobbesian contract - does depict law as being self-imposed, but based on the morally arbitrary will of individual contractors
- Kantian morality - in describing individuals' as autonomously willing the duties flowing from categorical imperatives based on premise that individuals should be treated as ends, does make law self-imposed and morally based, but in discussing matters at that level of abstraction, inclinations, subjective interests and socio-political institutions are unaddressed, and is based on Kant's solitary reflection - monological.
- Rawls - appears to rely on intersubjective process but again is basically monological, and is not impartial in the way that abstract relations among individuals are depicted.

JH's CFD
- dialogic and consistent with MPOV
- move from contract to consensus, process-based conception of argumentation based on distinction between StratA and Comm.A

Strat.A
- Inds. interact with self-interest as guide, others viewed as potential means for own ends
- Inequalities in bargaining power, information, rhetorical skills - results not likely in equal interest of all, nor in the interest of the whole

Comm.A
- MUO
- Model: idealized comm. of scientists gathered to ascertain truth of scientific hypothesis
- Norm. constraints on discussion - each given equalO to present arguments, persuasion only by force of argument that better comports with scientific norms of R
- Comm.A - dialogue among actors oriented toward reaching understanding concerning rightness of norms under consideration.
- entails voluntary submission to normative constraints embedded in discursive practice itself
- L only action norms upon which all those possibly affected would agree together to embrace on basis of good reasons

Procedural criterion for NV
- DP requires contested NVC to be settled thru Comm.A.
- Requires mutual recognition among all Comm.Actors. - consideration of all interests, as preconditions to reaching of consensus on norms in the equal interest of all affected
- CFD - means to test whether laws would command consensus of all possibly affected


Suitable as either - critical reconstructive theory or construction of reflective equilibrium
- Latter - if one can plausibly argue that notwithstanding actual contingencies - particular law would have obtained consensus of all possibly affected


Tension between constitutional rights and majoritarian legislative will
- unreflected in JH's proceduralist paradigm
- paradigm - constructs an image of contemporary society and explains how constitutional democracy and basic rights fit into that picture
- competing paradigms - liberal-bourgeois and soc.wel.

JH's approach for theory of V law
- all those within sweep of modern law should recognize each other as free and equal persons, endowed with inherent dignity
- justice requires that legal equality - similar treatment of similar cases - should be reconciled with factual equality - consideration of only relevant identities and relevant differences in lawmaking
- in calling for reconciliation of legal and factual equality -  stresses that all are equal under the law and law should treat all as equals
- Dworkin - distinguishes between equal treatment - to each the same thing, and treating persons as equals - possessors of the same inherent worth and dignity

F(x) aspect of law
- LW can not provide comp. norm. justification for different existing modes of social interaction
- Interactions increasingly mediated thru autonomous Ss
- "normatively rich lifeworld becomes ever more impotent, normatively poor and largely self-referential systems encroach upon greater expanses of social space"
- law as only legitimate means for society-wide normative integration - hinge b/w S and LW

Filling seemingly unbridgeable gap
- Rejects solutions which entail the elimination or downplaying of either of the two poles
- Luhman - self-enclosed, self-referential sub-systems that operate independently of one another
- Idea that the economy or the state could be co-opted to conform with pre-ordained set of externally generated commands

Law as bridge
- For S, Law is not simply an external constraint - structural sine qua non of S - without law penalizing interference with rights, no functioning market economy
- law not the motor of market functioning - without it, economy could not be socially institutionalized
- law can function as both pillar and external constraint - narrow the domain of application left open to market forces
- For LW, law could provide links between strangers lacking ethically-rooted norms to regulate interactions

Paradigm of law should reconcile legal and factual equality, and bridge gap that splits LW and S in way that secures S and supplements out of LW.

LPar
- formal conception of law
- justice reduced to equal distribution of rights
- maybe justified if one believes that free market economy can provide adequate measure of factual equality
- division between private and public, corresponds to division between rights and democratic participation
- economic activities sufficiently apart from rest of ISub endeavors - bridge unnecessary
Problems
1. formal law of property and contract - have given way to goal-driven alternatives
2. free market doesn't provide adequate measure of factual equality

SocWelP
- geared toward achieving factual equality and levelling disproportionate inequalities in material conditions
- depends on massive admin. ST's bureacracy.
- formal law displaced by goal-oriented bureacratic policies and regulations
- justice reduced to distributive justice
Problems.
1. material well-being can only be obtained by being reduced to a client of state
Autonomy and dignity are traded in for basic welfare entitlements
Basic decisions are left in hands of experts - increasing inequalites of information  between ruling elites and admin. masses
2. no clear boundaries between private and public, S and LW, rights and dem


HParadigm
- aim is to restore personal autonomy and dignity without abandoning quest for factual equality under material conditions characteristic of modern welfare state
- animated by DP
- starts out from picture of equal consociates under law - autonomous, reciprocally recognizant of each other's dignity
- consociates would regard as L any law of which they were both authors and addresses
- "if a law can be reconstructed through the discourse principle counterfactual as being genuinely self-imposed pursuant to a consensus among all those who come under its sweep, then any rational actor must acknowledge its normative validity"
- Rights and democracy - internally linked
- without discursively redeemed rights - comm. actors could not sustain the level of reciprocal recognition that must go hand in hand with genuinely reached consensus
- without pop. dem., not only basis of consensus undermined, mutual recognition would be curtailed.


Proceduralist Paradigm
- L and binds LW and S
- Legal support for Ss - discursive validation - casts these as being self-imposed, and constrains them thru process of discursively redeemed law
- Normatively supplements LW output - consensual in nature, not prone to being inconsistent with ethical norms embedded in LW
- Discursively redeemed law provides normative layer upon which all interactions are grounded
- Legal and factual equality reconciled
- similar cases receiving similar treatment - follows from dialogical consensus on what reciprocal recognition requires
- discovering relevant identities and differences necessary to conform law to factual equality - left to deliberations of comm.actors


CFD as critical theory or reflective equilibrium - depends on
1. ability to establish sufficient but not excessive contrast with prevailing circumstances
2. potential for suggesting ways for resolving existing conflicts and inconsistencies

JH's model
- underscores difference between collective generation of norms and their use to every actors best advantage
- contrasts with prevailing practice - tracks an ideal which would provide logical solution to conflicts/inconsistencies
- in contrast to monological models or dogmatic unitary collective ones, postulates ISub model for settling normative questions