Refine
Year of publication
- 2012 (2)
Document Type
Language
- English (2)
Has Fulltext
- yes (2)
Is part of the Bibliography
- no (2)
Keywords
- Discourse theory of law (1)
- communicative aesthetic rationality (1)
- fascination (1)
- legal authority (1)
- political public sphere (1)
- public hearings (1)
- publicity of law (1)
- religious authority (1)
- supreme courts (1)
- theory of rationalization (1)
Institute
The requalification of Habermas’ discussions on political philosophy and legal theory after the publication of Zwischen Naturalismus und Religion (2005), and his most recent texts and debates on religion and the public sphere, suggest a revision of the Habermasian theory of rationalization as it was firstly presented in Theorie des Kommunikativen Handelns (1982), especially on what concerns the processes of dessacralization and the linguistification of religious authority. In search of contributing to this revision, this paper intends to focus on the problem of a supposedly “lost” aesthetic-expressive understanding of religious authority in Habermas’s theory of rationalization, which may have contributed to a theory of law in Faktizität und Geltung (1992) that does not give satisfactory account to the aesthetical-expressive character of the modern understanding of legal authority. A better understanding of this special character, however, may contribute not only to the avoidance of fundamentalisms and new attempts of “aesthetization of politics”, but also to a rational strengthening of the solidarity of the citizens of democratic constitutional states.
This paper aims to discuss in which sense public hearings in supreme courts of democratic rules of law can be seen as proceduralization of popular sovereignty policies. These policies constitute expressions of a normative claim for a wider “publicization of law” by democratic states’ institutional powers and organs; a claim that becomes evident when one undertakes an intersubjective interpretation of law. This theoretical argument will be presented in the first section of the paper through a new articulation of Jürgen Habermas’ discursive theory of law and his most recent studies on the concept of political public sphere. The theoretical section gives normative and procedural criteria for the second section of the paper, which consists on a critical analysis of the procedures and practical cases of public hearings held at the Brazilian Supreme Court, constituting the first scientific study to date on the Court’s use of this legal instrument.