Tombus (2001) The Rule of Law as a Democratic Principle of Legitimacy: The Views of Habermas and Hoffe

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The Rule of Law as a Democratic Principle of Legitimacy: The Views of Habermas and Hoffe

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CONTRIBUTORS:

Author:

Tombus, Ertug H.

UNIVERSITY / COLLEGE:

None

YEAR:

2001

PUB TYPE:

Thesis/Dissertation

PAGES:

SUBJECT(S):

None

DISCIPLINE:

Political Science

HTTP:

LANGUAGE:

English

PUB ID:

103-420-534 (Last edited on 2005/10/16 09:27:53 GMT-6)

SPONSOR(S):

ABSTRACT:
The aim of this study is to examine the idea of the Rule of Law as a democratic principle of legitimacy. The study argues that, although the Rule of Law is one of the most important features of the modern constitutional states, it is problematic if we think it as a principle of legitimacy. The problem arises especially when it is argued that, the Rule of Law, per se, ensures democratic legitimacy. The central question in this study is whether the Rule of Law is a democratic principle of legitimacy or, does it serve as a legitimacy principle even for undemocratic regimes. Following Franz Neumann’s historical perspective in which the emergence of the Rule of Law is discussed, the study continues with presenting and discussing the general conceptions of modern law. At this level, legal positivist and formalist perspectives of Max Weber, Hans Kelsen and H.L.A. Hart are examined with an emphasis on the common premise in their approaches to law, i.e., the separation of law and morality. The study claims that, legal positivist and formalist perspectives do not provide an adequate ground for the Rule of Law to be accepted as a democratic principle of legitimacy. This inadequacy is a result of their separatist thesis. Such impasse leads us to the necessity of a normative perspective on law in general, and the Rule of Law, in particular. Therefore, the study, then, focuses on the two contemporary normative perspectives which challenge the separation of law and morality. At this level, Jürgen Habermas’s discourse theory of law and democracy, and Otfried Höffe’s perspective of political justice is presented and discussed. It is further argued that, although Habermas and Höffe succeed in introducing a moral perspective and a democratic content to the analysis of law, their perspectives do not constitute a sufficient ground to accept the Rule of Law as a democratic principle of legitimacy. The main conclusion of this study is that, it is necessary to make a separation between the legitimacy of law and the legitimacy of the state to clarify the idea of the Rule of Law and its role within the general problematic of legitimacy in modern states.

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