Critical theory and reconstruction: On Hauke Brunkhorst’s Critical Theory of Legal Revolutions

Abstract

In his account of legal revolutions, Hauke Brunkhorst applies a dual perspective encompassing the approaches both of systems and discourse theory to social evolution: functional adaptation and group-based normative learning coexist as two mechanisms of societal change, the latter being conceptualized as occasional interruptions to an overall systemic process of societal evolution. This article argues that Brunkhorst’s ‘systems theory first’ perspective undermines his claim to be delivering critical theory and that while it is both possible and necessary to incorporate a systems-theoretical perspective into discourse-theoretical social theory when devising a critical theory of law and democracy, the reverse does not apply. The building blocks of Habermas’ reconstructive approach to social evolution are presented as a conceptual framework that constitutes an alternative to Brunkhorst’s ‘systems theory first’ perspective but remains compatible with the basic premises of his account. A discourse-theoretical view that sees societal development in terms of a social learning process chimes with Brunkhorst’s dual perspective on the dialectics of legal evolution but at the same time upholds the aims of critical theory.