"Unlike normative philosophy of law, which understands law from the inside—from the standpoint of jurists and laypersons who are concerned about its moral authority to obligate individual actors to comply with its rules—sociology explains modern law from the outside—from the standpoint of social scientists who are interested in its historical emergence as a factual precondition for modern economic and administrative systems. Seen in this dual light, law facilitates both the normative integration of individual actors (social integration) as well as the functional coordination of systems (functional integration). On the one hand, it designates an organizational tool (strategic medium) largely deployed independently of moral concerns about justice, by which government bureaucrats exercise their administrative power in coordinating the achievement of collective goals that are vital to maintaining economic efficiency and political order. On the other hand, it comprises norms of justice in accordance with which actors voluntarily coordinate their conflicting aims for the sake of social cooperation and solidarity.

Habermas is mainly interested in law as a normative institution. However, he directs much of his criticism against normative legal philosophies that are insensitive to the dual factual and normative aspects of law. On one extreme lies legal positivism, which proffers a functional or factual explanation for understanding why legal subjects obey the law. According to this view, persons feel obligated to obey the law not because it is morally just but simply because it is the law. They obey the law out of fear, or (adopting the viewpoint of a sociological observer) because they recognize that doing so contributes to an efficient and stable system. In Habermas’s opinion, although this view may suffice to explain why some people feel obliged to obey the law —out of fear of the consequences for failing to do so—it cannot explain why most people do. Not only are the consequences of disobeying the law far from certain, but the long-term capacity of the law to command obedience depends on its being generally obeyed 'out of respect for the law' as such.

Even when positivists like H.L.A. Hart concede the truth of this point, holding that most citizens in stable legal regimes obey the law because it is the 'right thing to do,' apart from its consequences, these positivists limit the normative, critical attitude that citizens can adopt with respect to the law. For positivists, if citizens recognize that they ought to obey the law because it is the right thing to do, it is because citizens recognize, in an unquestioning way, the 'rightness' of the legal authority of the basic law, such as a constitution, from which all their nation's laws trace their rightful pedigree (what Hart calls a 'rule of recognition'). Judges and jurists can criticize the wrongness of a piece of law making or a judicial decision for having deviated from the basic law, but they cannot criticize the rightness of basic law itself, inasmuch as this law defines what is legally right. They might, of course, criticize the basic law for nonlegal reasons, such as its ineffectiveness or moral unfairness. But there is something awkward about this, insofar as the basic law is supposed to provide secondary rules, or decision procedures, for resolving disagreements concerning our primary rules for acting, including moral rights.

For Habermas, the awkwardness of morally criticizing basic law can be removed only if standards of moral justice are both universal and necessary for understanding why citizens obey the law because it is the right thing to do. In other words, it is not enough for citizens to obey the law because it is the law (which they respect unquestioningly, as a matter of fact); they must also obey it because it is morally just and nonoppressive. Yet, despite its connection to justice, Habermas warns against viewing law as a simple instantiation of (or derivation from) morality—the view he associates with natural law theory. Unlike moral norms, which command specific actions as a matter of duty, legal rights command nothing. Instead, they permit a range of protected actions. These actions can be motivated by selfish interests and can even produce consequences that are widely regarded as immoral. The connection between law and morality is therefore at most indirect; in most cases it is not statutory law but the democratic procedure by which it is made that most directly refers to justice" (Ingram 2010:161-163).

Ingram, David
2010 Habermas: Introduction and Analysis. Ithaca, NY: Cornell University Press.

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