Introduction: Theorizing Modern Transformations of Law and Democracy

Abstract

Social scientists today attempt to formulate categories that illuminate evolving supranational developments and emerging international institutions associated with globalization, most concretely the European Union (EU). Simultaneously, many political theorists refine a normative model of democracy legitimated by deliberative practices and instituted through legal-constitutional procedures. This study combines and contributes to these efforts by asking how democracy and the rule of law may be secured and advanced in supranational institutions such as the EU during the dawning century. However, I venture an answer to this question in an apparently indirect and ostensibly anachronistic manner: the book revisits two of the last century's most powerful normative-empirical analyses of European state transformations: specifically, Max Weber's sociology of law and Jurgen Habermas's discourse theory of law and democracy. I demonstrate how these theorists' strengths and shortcomings contribute to a more sophisticated theoretical engagement with the current situation of law and democracy as the European state transforms as a result of globalization and the integration process. Part of my task is to show that Weber's “Sociology of Law” is much less of an encyclopedia of legal categories or a history of legal development in the West than many scholars commonly suppose. Weber's SL is first and foremost an intense confrontation with what was a transformation of state and society in Weber's own time: specifically, the transition from the nineteenth-century liberal state, or Rechtsstaat , to the administrative/welfare state, or Sozialstaat , of the twentieth century.