Social Entitlements in Habermas’s Discourse Theory of Law: Welfare State Regulations as Legitimizing Institutions

• Published date: 01 September 2022
• Author: Stefan Späth
• Date: 01 September 2022
• DOI: http://doi.org/10.1111/raju.12357

© 2022 University of Bologna and John Wiley & Sons Ltd.

Ratio Juris. Vol. 35 No. 3 September 2022 (273–289)

Social Entitlements in Habermas’s

Discourse Theory of Law: Welfare State

Regulations as Legitimizing Institutions

STEFAN SPÄTH

Abstract. In Habermas’s discourse theory of law, the guarantee of citizens’ private and public

autonomy is a prerequisite of legitimate law. This includes social entitlements. They provide the

living conditions necessary for equal opportunities in the use of private and public freedoms. A

proceduralist paradigm of the welfare state ensures private and public autonomy in shaping so-

cial rights. This makes welfare state regulations a legitimizing institution. This legal theoretical

approach is outlined and defended against objections. The focus falls on examining the critique

of the justification and quality of social entitlements. Also considered are possible measures to

strengthen the basis of legitimation in shaping social rights.

1. Introduction

In many modern legal systems, the constitutional guarantee of human rights is lim-

ited to the classic liberties, protecting life, freedom of action, property, religion, and

opinion. Basic social rights— such as the rights to adequate minimum income, edu-

cation, housing, and health care— are generally not guaranteed. This is based on the

idea that basic rights are primarily defensive (negative) rights against state interven-

tion in the private sphere of citizens.

In his discourse theory of law, Habermas shows that this basis of legitimacy is

too narrow for a modern constitutional state. The democratic constitutional state

must secure not only the private and public autonomy of its citizens, but also their

preconditions. To this end, social entitlements must be guaranteed. They ensure the

possibility of exercising private and public freedoms and close the gap between for-

mal and material equality. Therefore, for Habermas, social entitlements are implicit

in every system of rights. To realize these rights, Habermas develops a proceduralist

paradigm of the welfare state. This results in a new concept of social justice, under

which welfare- state regulations serve a legitimizing function.

The guarantee of social rights positively distinguishes Habermas’s reconstruction

of fundamental rights from other theories of fundamental rights. However, critical

voices note that Habermas’s reconstruction of fundamental rights to secure subsis-

tence falls short of their unconditional claim (Ingram2009). Basic social rights should

not only be justified in relation to private and public freedoms (Frankenberg1997). A

functional understanding of basic social rights is not appropriate.

Stefan Späth

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Ratio Juris, Vol. 35, No. 3© 2022 University of Bologna and John Wiley & Sons Ltd.

Here it will be argued that such critical questions can be addressed by taking into

account the overall concept of the discourse theory of law. This theory is based on a

system of individual liberty rights, democracy, and the rule of law, in which private

and public autonomy are realized at the same time. Habermas gives the concept of

autonomy a communicative and intersubjective twist. He shifts the discursive justifi-

cation of norms of action to the entire public sphere. The process of establishing and

concretizing social rights ensures the autonomy of the authors and the addressees

of the rights. In addition, social entitlements establish the conditions for an equal

opportunity to exercise private liberty and civil rights.

Habermas’s legal theoretical approach is briefly described below, so as to frame

the normative concepts of autonomy, subjective rights, and social entitlements

(Section 2). The focus is on the criticism levelled at Habermas’s reconstruction of

basic freedoms and participation rights. There are a few critical comments on this in

the literature. This provides an opportunity to clarify the position and significance of

social rights in the overall concept of Habermas’s discourse theory of law (Section 3).

Habermas’s proceduralist model of the welfare state presupposes the involvement of

legal addressees in the design and interpretation of social entitlements. Social entitle-

ments provide the preconditions for an equal opportunity to exercise civic autonomy.

Thus, in Habermas’s discourse theory of law, the design and interpretation of welfare

state regulations becomes a legitimacy- generating institution (Section 4). From the

perspective of discourse theory, the legitimacy of legal norms is based on intersubjec-

tive agreement in a societal discourse that is as broad as possible. From this point of

view, possible measures to strengthen the basis of legitimacy in the shaping of social

rights are considered. The article concludes with a short summary (Section 5).

2. Cornerstones of Habermas’s Discourse Theory of Law

In his discourse- theoretical reconstruction of law, Habermas makes use of the ele-

ments and concepts of a modern legal system as they have developed in the tradition

of rational law since the Enlightenment. The goal of Habermas’s discourse theory

of law is to answer the question of the legitimacy of a legal system (Habermas1996

[henceforth BFN], 82). A de facto recognition of a legal system is not enough: The

legal system should be worthy of recognition. Otherwise the law cannot fulfill its

socially integrative function for society.

2.1. Realization of Private and Public Autonomy

Of fundamental importance for the legitimacy of a legal system is the relationship

between private and public autonomy. Because of the positivity of law, the role of

lawmaking authors must be distinguished from the role of the law’s addressees. A

person’s autonomy, appearing homogeneous in the moral sphere, exists in the legal

sphere only in the dual form of private and public autonomy. A basic idea and main

concern of Habermas’s discourse theory of law is to establish a balance between pri-

vate and public autonomy in the legal system despite this heterogeneity (BFN, 118).

Like Kant, then, Habermas understands autonomy as the self- legislation of free and

equal citizens (BFN, 104). In a democratic state under the rule of law, private and public

autonomy must be realized in such a way that the state’s legislation presents itself as

the self- legislation of free citizens. Habermas therefore criticizes all formulations and