The “Great Refusal” and Social Theory, 1961–1981 131
“... his vision of an iron cage [of modernity] whose moral-practical
substance has dried up [by assigning] morality and law to different
complexes of rationality.”^183 By doing so, he “... [played] down the
structural analogies that obtain between moral development and
the rationalization of the law.”^184 The result was a vision of law and
legal domination that emphasizes the
... formalism of a law that is systematized by specialists and with the
positivity of norms that are enacted.... But he neglects the moment
of a need for rational justification.... [He] detaches the rational-
ization of law from the moral-practical complex of rationality and
reduces it to a rationalization of means-ends relations.^185
This approach is illustrated by Weber’s “positivistic equation of
legality and legitimacy” that, Habermas claims, “lands him in an
embarrassing situation”:
Assuming that legitimacy is a necessary condition for the con-
tinued existence of every type of political domination, how can a
legal domination whose legality is based on a law that is viewed
purely in decisionistic terms (that is, a law that devalues all ground-
ing in principle) be legitimated at all? Weber’s answer, which has
found adherents from Carl Schmitt to Niklas Luhmann, runs as
follows: through procedure.^186However, this results in a vicious circle:
It remains unclear how the belief in legality is supposed to sum-
mon up the force of legitimation if legality means only conformity
with an actually existing legal order, and if this order, as arbitrarily
enacted law, is not in turn open to practical-moral justification. The
belief in legality can produce legitimacy only if we already presup-
pose the legitimacy of the legal order that lays down what is legal.
There is no way out of this circle.^187
In the same decade that Habermas was working through Anglo-
American theories of language, he also was engaged in an equally
(^183) Ibid., 251
(^184) Ibid.
(^185) Ibid., 262
(^186) Ibid., 265. This is the opposite of what Habermas means by “procedure”;
his is closer to that of Robert Alexy ( 1978 ) and Ralf Dreier ( 1981 ). For an
elaboration of Habermas’s “procedural turn,” see Chapter 5.
(^187) Ibid.