法治国家の空洞化と「手続き主義的法パラダイム」

概要

論文の詳細を見る
In Chapter nine "Various Paradigms of Law" in Faktizitat und Geltung, Habermas adopts a terminology in which his basic law-paradigm is identified as the Procedurist Law-Paradigm. The term law-paradigm refers to the framework of reference for the system of law not only for specialists but also for common people. In the paradigm, the realization of rights is understood with reference to the circulatory processes of personal and public autonomy. The Procedurist Law-Pradigm is distinguished from the liberalist paradigm, which focuses itself on subjectivist rights, and from the socio-national law-paradigm. The Procedurist Law-Paradigm stipulates that any equal treatment of humans under formal laws should be realized as a substantive and real equality for human beings. The core of the idea of the paradigm holds the idea that it is important to identify the standards that distinguishs what should be manipulated equally from what should be handled distinctively in public discourses. The standards would be innovated in the process of "struggles for recognition," where individual norms and concepts of values clashed with each other in the realm of political culture in the public. In the idea of Procedurist Law-Paradigm, Habermas crystallizes the central objective of the democratic constitutional state to the effect that citizens recognize themselves not only as addressees of the law but also as senders.
盛岡大学の論文
2006-03-30