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LIBERALISM AND THE LIMITS OF LEGAL LEGITIMACY: KANT AND HABERMAS

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Abstract:

This paper makes a distinction between legal forms of legitimacy and legitimate forms of legality. It suggests that only legitimate forms of legality are genuinely legitimate. Genuinely legitimate in this context means sustained by non-instrumental forms of reason mediating between humanity and nature, keeping in mind that humanity is part of nature due to humanity's spontaneity and sensuality, but not reducible to nature because of human consciousness and rational law. Whilst legal forms of legitimacy are underpinned by instrumental forms of reason which estrange humanity and nature, non-instrumental reason reconciles humanity and nature in the medium of legitimate law. By way of a critique of liberalism in the works of Kant and Habermas, the paper attempts to show that there is a non-exclusively human dimension in nature as well as an extra-natural dimension in humanity. It is argued that the extra-natural dimension of humanity achieves a particular epistemological importance in law, and that legitimate law does not regulate or oppress the non-exclusively human dimension of nature that is present in each individual human. At the end of the paper it is suggested that this trace of nature in humanity is not ineffable or obscure. It achieves a particular epistemological resonance of its own in art and the formulation of artistic values which are neither relativist or dogmatic. The conclusion proposes that legitimate law reconciles humanity and external nature in the institutions of libertarian socialism, on the one hand, and reconciles humanity and nature in humanity in the articulation of artistic values which provide evidence of agonistic pluralism and the uniqueness of each person, on the other.

Keywords: Legality; aesthetics; epistemology; idealism; legitimacy; libertarian socialism; reason; reconciliation; regulation

Document Type: Research Article

Publication date: January 1, 2005

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  • Until 2007 the King's Law Journal was known as the King's College Law Journal. It was established in 1990 as a legal periodical publishing scholarly and authoritative Articles, Notes and Reports on legal issues of current importance to both academic research and legal practice. It has a national and international readership, and publishes refereed contributions from authors across the United Kingdom, from continental Europe and further afield (particularly Commonwealth countries and USA). The journal includes a Reviews section containing critical notices of recently published books.
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