Between Facts and Norms, Jürgen Habermas's magnum opus of legal and state theory, clarifies the model of a communicatively grounded and legally facilitated social democracy, a model anticipated in Public Sphere and more generally elaborated in TCA. In this chapter, I focus on Habermas's attempt to address problems that have their roots in Weimar debates over law and democracy, and that can be traced back even further to Weber's legal sociology. In particular, I address Habermas's efforts to (1) translate his system/lifeworld theory of modernity into juridical terms; (2) formulate a theory of constitutional democracy that corrects the inadequacies and avoids the excesses of narrowly proceduralist or excessively substantive alternatives; (3) develop a theory of legal adjudication that is neither rationally incoherent nor inherently elitist; and (4) explicate a strategy by which the advantages of the Rechtsstaat and Sozialstaat models of law might be made efficacious in contemporary circumstances. In addition, I lay the groundwork for a critique of Habermas's attempt to transpose this model to a supranational level, a critique to which I will devote the next chapter in its entirety.

By now, we should not be surprised to find in the title of BFN categories familiar from Weber's “Sociology of Law” and from the latter's essay on “Legal Theory and Sociology.” Habermas's tome, almost as mammoth as Weber's, purports to mediate the opposition between the empirical facticity (Faktizität) and abstract validity (Geltung) expressed in its title, and he discusses contemporary scholarly approaches that prioritize each.