In this essay, I focus on the concept of “civil society” in Habermas. I trace its development through the four phases of juridification Habermas outlines in The Theory of Communicative Action. To substantiate this development, I look backwards to Habermas’ foundation in the Hegelian and Marxist conceptions of civil society. I then turn to Habermas’ later text Between Facts and Norms, which argues for a strong relationship between the law and civil society. On the one hand, I deeply appreciate how Habermas elevates civil society, making its characteristic intersubjectivity the foundation of law. On the other hand, I worry about where this leaves civil society. In particular, I think the process presented positively in Between Facts and Norms contradicts Habermas’ own analysis of juridification in The Theory of Communicative Action. I think Habermas looks to civil society as a model because it is a space of spontaneous free interaction between autonomous subjects. But when the law assumes the functions of civil society, this space of freedom and autonomy risks disappearing. Before elaborating on this argument about Habermas, I will provide some motivation for why I see this as a risk.
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