请将“The second moment besides the legal form is the abstract discourse principle, which is intended to assume the shape of a principle of democracy. Its only purpose is to express the meaning of post-conventional requirements of justification, that is the perspective from which norms of action can be impartially founded in the first place.65 It is, in principle, the culmination of his reflections on communicative reason. If dissension constitutes the core problem of modern socialisation, where linguistic communication practice in social interaction inevitably raises criticisable validity claims, the institutionalisation of consensual procedures for norm production necessarily follows from this. Hence the discourse principle, which can found both moral and legal norms in Habermas, is given this form: ‘Just those action norms are valid to which all possibly affected persons could agree as participants in rational discourses’^
Finally, rational discourse should ‘include any attempt to reach an under-standing over problematic validity claims insofar as this takes place under conditions of communication that enable the free processing of topics and contributions, information and reasons in the public space constituted by illoc-utionary obligations’67
In Between Facts and Norms Habermas has liberated the discourse principle from its moral-ethical one-sidedness. The focus is now no longer on the legitimacy of certain types of arguments, but on the impartiality of the proced- ures.68
When the discourse principle intertwines with the legal form, the democratic principle emerges from this69 The legal code as the language in which the legal subjects can realise their autonomy, is coupled with the demand for rational justification. The result are procedures that ‘under real conditions of lawmaking where there is simply no way of asking humanity as a whole, enable decisions to be made which “could” measure up to the standards of ideal discourse’?0 Thus the subjunctive form makes explicit that nevertheless the criteria of ideal discourse are not abandoned despite the limited possibilities of legal institutionalised democratic procedures?1
The legal code itself must not be confused with the code of legal theory in systems theory (legal/illegal), but it refers in Habermas to the egalitarian conferring of legal entitlements. It comprises therefore initially three categories of rights: the right of equal individual liberties, the right of membership in a voluntary association of consociates under the law, and the guarantee of judicial review.72 But up to now this is - in the thought experiment - only egalitarian juridification. At this juncture is determined whether the legal subjects give over their only virtual authorship to a higher power in the next step or if, on the contrary, they also realise it normatively by allowing each other reciprocal political rights to participate in democratic legislative procedures, whereby they also normatively become the authors of their individual civil liberties. For this, however, they require the discourse principle, whose medium of institutionalisation is again the legal form?3 Those categories of fundamental rights remain unsaturated until a political legislature interprets and gives them shape in response to changing circumstances?4 This does not found a dual legality - nothing is given to the legislator, she only implicitly gains liberty rights at the moment she uses the legal code?5
There is thus a dialectic, internal relation between popular sovereignty and human rights; it ‘lies in the normative content of the very mode of exercising political autonomy, a mode that is not secured simply through the grammatical form of general laws but only through the communicative form of discursive processes of opinion- and will-formation’?6 This is Habermas’ development of Jean-Jacques Rousseau’s and Immanuel Kant’s republican theory of democracy after the linguistic turn. Legitimate right, which is at the same time the social- structural precondition of a durable social formation, presupposes legitimate procedures.
A legal order is legitimate to the extent that it equally secures the co-original private and political autonomy of its citizens; at the same time, however, it owes its legitimacy to the forms of communication in which alone this autonomy can express and prove itself.77
The discourse principle is for Habermas an equally pure a priori, as is the ‘only innate human right’ for Kant. Both postulate the conditions of legitimacy counter-factually. In Habermas this is the ideal speech situation as the idealist precondition of any constitutional practice which lays claim to reason. ‘Regardless of the actual strategic motivations and interests of constitutional 
law-giving and constitutional praxis, a critical standard is established through these principles without which the description of reality would be cynical’.78
Finally, Habermas formulates the presuppositions for protecting this system of rights largely from the imperatives of the administrative system. Habermas argues very much in the Kantian tradition that the legal medium already presupposes a political power. For the reciprocal conferral of rights remains a metaphorical event and cannot become permanent unless state power is established with the force of the barracks and put to work?9 However, he diverges from Kant’s concept of rights at a decisive moment, as political power is differentiated into communicative and administrative power?0 and only the latter poses a problem for the constitutional state. For communicative power, as Habermas formulates following Hannah Arendt, is nothing but the legislating power which emerged in rational procedures from the free processing of themes and contributions, information and reasons, thus corresponding to the discourse principle81 Thus it joins forces with law, and power aligns with law, very much in contrast to natural law, where both were opposed to each other. Law is thus the medium which translates communicative into administrative power; and the idea of the constitutional state has to mean that ‘... the administrative system which is steered through the power code be tied to the lawmaking communicative power and kept free of illegitimate interventions of social power (i.e., of the factual strength of privileged interests to assert them-selves)’82
3	Critique
Habermas’ legal theory owes its power of persuasion to the nuances of normative and socio-structural perspective and its liberal telos. His attempt to situate law in the force field between communicative action and independent social systems, that is, in the dialectic of acting subjects and social surplus objectivity, is insightful. The following analysis of materialist legal theory will show that its overlaps with the discourse theory of law are considerable, due to their common origin in critical theory. In the following I will therefore concentrate on 
the differences. Here my critique focuses primarily on how Habermas simul-taneously over- and underestimates the systems.
3.1	The Refusal to Think Law as a System
Firstly, on underestimating the systems: Habermas transfers all his democratic hopes and demands for solidarity to the medium of law. It is meant to achieve the self-organisation of society, stabilise expectations, make the legitimacy of the political regime possible, mediate between system and lifeworld and carry the burden of social integration. Communicative reason is initially embodied in language in general, but then takes - in particular in legal language - a particular shape. And precisely for this reason law itself cannot be a system, that is, no independent mechanism of social integration which takes place behind the back of communicative action. However, just as Luhmann places the systems, Habermas situates the existence of two - and only two - systems and law as a moment of the lifeworld. While he had just criticised Marx’s theory of value for falling into a ‘monism’, which knows only one ‘system’, namely the economy - suggesting on the contrary that it depends upon a functional supplement through an administrative system of action, which is differentiated through the medium of power83 - it is not clear why law, in particular in light of its ‘internal connection’ with political power, could not also constitute such a ‘functional supplement’^4
In particular Luhmann’s representation substantiated the systemic mechanisms of law plausibly, but Habermas does not follow this version, because he sees it as a threat to the potential for solidarity. Interestingly he evaluated law even more ambivalently in The Theory of Communicative Action, with the distinction between law as an anonymous, quasi-systemic mechanism, which colonises even the lifeworld, and a law that is still connected to the lifeworld through demands for legitimation85 While Habermas thus initially assumed that the description of the legal system in systems theory was at least descriptively adequate,86 his democratic-theoretical approach in Between Facts and Norms led to the rejection of this notion87 With the process of legislation, the legal code seems to dispose of an extensive potential which the systems do not 
possess. There, no mechanisms of understanding and no normative feedback seem to exist anymore. But only such a rigid separation, which describes the systemic processes completely detached from communicative action, has then to reach the conclusion that legal relationships cannot take place systematically.
Finally, it is noticeable that the entanglement of law in social mechanisms of power and domination is not sufficiently illuminated and that the connection of law to power is meant to crucially consist in its close relationship to the positive form of ‘communicative power’. Or, expressed even more fundamentally: since power and domination are in general not denied in Habermas, but also not discussed, and are at most centred politically in the administrative system, law can also be accounted for relatively harmoniously.88 This constitutes a significant difference to materialist approaches, which deny that the legal form can be unharmed in an irrational and power-defined world. No matter how severely one considers the difference, it is obvious that law as part of the lifeworld is not burdened with any negative connotations: ‘All that is bad seems to come from the outside’, objected Alex Demirovic to Habermas’ social theory, ‘but what is not inquired into are the patterns of reproduction through domination of practices attributed to the lifeworld, that is of the family and sexuality, of the form of the subject, of pathological interactions and processes of meaningmaking, which have already caused so much devastation in the area of social integration and which only provided [...] the colonisation by the systems with its potential to exert influence’89
The question is how the potential of law, which it undeniably appears to possess in comparison to other immediate forms of domination, could be considered in such a way that it is not ‘de-dominated’ (Narr) and reconciled, but can be salvaged through its systemic character. In the materialist theory of law, which is reconstructed in Part 3, we will see that this potential can precisely be found in that independence of the law which is also ‘co-originally’ a reification of human relations.”翻译为中文