Legal Theory

Both legal theory and theories of the state stand at a crossroads today. The modern state has transformed quite radically from its traditional image. According to Habermas’ account, in traditional societies, “the law made by the ruler remained subordinate to the Christian natural law administered by the Church”. The social integration was a result of bonding convictions which came from the mythical narratives and ritual practices. However, in the postmodern situation with all its complex interrogations of Universalist claims and a predominantly secular society such as ours, “the normative order is maintained without such metasocial guarantees”. Such a situation leads to a specific question: how is social order maintained amidst such disenchantment, internal differentiation and widespread plurality in the society. One way to answer this question is to come to terms with the way in which certain norms are regulated and how they bring about “willingness to comply simultaneously by means of de facto constraint and legitimate validity”. Such norms with their covert authority fuse validity with the force of the factual which in turn, “leads to a system of rights that lends to individual liberties the coercive force of law”. And, for Habermas, modern law at its core “consists of private rights that mark out the legitimate scope of individual liberties and are thus tailored to the strategic pursuit of private interests”.

There is a tension which resides at every level of the legal sphere. Consider, for example, compulsory laws which are backed by sanctions. On the one hand, such laws are ratified by a lawgiver with the aim to punish those who do not comply; to the extent that they are actually enforced and followed. On the other hand, com...

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