By Emilios A. Christodoulidis (auth.)
Law is the good concealer; and legislation is all over. Or so claimed Marxists as soon as upon a time. [Law] used to be imbricated in the mode of construction and efficient kinfolk themselves . . . it intruded brusquely inside of alien different types, re-appearing bewigged and gowned within the type of ideology; . . . it was once an arm of politics and politics was once one in all its palms; it was once an educational self-discipline, subjected to the rigour of its personal self reliant common sense, it contributed to the definition of the self-identity of either the rulers 1 and the governed. Does the outdated critique of domination nonetheless carry any sway? it appears no longer. Or so even students of the a long way Left hold reminding us of their eagerness to include legislations and proclaim their allegiance to the hot constitutional politics of civil society. previous Marxists now describe well known sovereignty as 'co-original' with, and democracy 'internally associated' to two constitutional rights and locate it tough to recollect what it was once they as soon as disagreed with liberals approximately. No pressure left among emancipatory politics and oppressive legislation; in its place now we have reciprocal structure, simultaneous realisation. within the Left's embracing of the hot constitutionalisms its previous critique of legislations - the critique of the law's concealment of sophistication inequality, type clash and sophistication motion - is left behind.
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33 Habermas's defence of constitutional rights as 'opportunity structures' is very much undertaken on the grounds that they establish the conditions of rational discourse by safeguarding the integrity of the democratic process. Thus Habermas' s theory of rightness as uncoerced consensus remedies this otherwise 'external' connection between law and politics - the law protecting and accommodating politics by providing a framework - with an 29 See above, text accompanying fns 4-6. , 321 HABERMAS ON LAW AND POLITICS 29 'internal' connection, where law contains and carries politics understood as contributions to a common dialogue.
9 It must be stressed that Habermas's position in relation to this is ambiguous and shifting. His strong stance against the legitimating function of constitutionalist ideology - as one of the mechanisms through which capitalism offsets legitimation crises - is gradually abandoned after Legitimation Crisis. Initially he replaces his oppositional stance with a qualifying distinction (law as medium/institution) and most recently he abandons it altogether as we will see. In his recent 'republican' tour de force - Faktizitat und Geltung - his account of the demise of the critical function of the public has been 'rectified' in favour of a much more optimistic theory of democracy.
The sections of the present part are only an exposition of the republican argument, and the occasional critique that I include aims to clarify the exposition, either because it brings critical aspects of the theory into relief, or because it is a critique to which the republicans themselves have responded by qualifying their positions. This way of proceeding does justice to republicanism as a project in progress - which also explains why the positions are often related as in a dialogue, and why there are occasional interruptions and overlaps in the narrative.