chapter  3
Law in the Postnational Constellation
Pages 24

Habermas must have realized while working on Between Facts and Norms that the framework he had laid out possessed little visionary power regarding the changes to come after 1989. He even acknowledges in the preface that the whole idea might appear to be anachronistic: “I have no illusions about the problems that our situation poses and the moods it evokes … If defeatism were justified, I would have had to choose a different literary genre, for example, the diary of a Hellenistic writer who merely documents, for subsequent generations, the unfulfilled promises of his waning culture.”1 Consequently, even in the subsequent “postnational constellation” Habermas has stayed firm to his principal idea, though he has not spelled out his anti-defeatist vision in the form of a “grand theory” comparable with his earlier works. Instead, he comments in political writings on current affairs and sometimes assembles his views in longer essays.2 Yet it is possible to glean from these works a number of recurring topics and to form a coherent picture. The interesting point for the overall question pursued here is that Habermas himself now discusses a range of phenomena of transnational law. Thus, examples previously required to highlight Habermas’s state-centered view now become the focus of his attention subsequent to Between Facts and Norms. The aim is to show that in order to analyze transnational developments, Habermas is constantly compelled to alter his concept of law. In order to pinpoint the crucial theoretical readjustments within the concepts of law, I will first introduce Habermas’s basic account of the “postnational constellation,” then analyze three areas of transnational law, and finally summarize the results ensuing from a reading of Habermas.