| Summary: | 碩士 === 國立臺灣大學 === 法律學研究所 === 101 === The relation between legal rights and social emanicipation has long been discussed since 19th century, and the emanicipatory potential of legal mobilization was also doubted by Critical Legal Studies in late 20th century. This thesis analyses the issue from a viewpoint of Critical Theory, and argues the relation between legal rights and social emanicipation can be understood as the tension between self-determination and self-realization.
Inside Crtitical Theory tradition , Habermas’ theory of communicative action tries to formulate social emanicipation in terms of discursive procedure of intersubjective self-determination; nevertheless, this tendency would marginalize the concept of self-realization in a theory of emanicipation. Contrary to Habermas, Christoph Menke’s tragic theory argues that the normative logic of self-realization differs from that of legal autonomy, and cannot be fully compatiable with the latter.
This thesis would like to analyse this issue with Axel Honneth’s recognition theory. Although, compared with Charles Taylor, Honneth holds the idea of dialogical character of subject-formation, and meanwhile correctly understand the critical potential of rights and its primacy over other recognitive spheres, in “the struggle for recognition” and articles in 1990s, rights as recognition to participate in democratic will-formation cannot successfully explain how rights are compatiable with other recognitve spheres like love and solidarity and would not threaten their autonomy.
In recent works, Honneth uses the scheme of Hegel’s the Philosophy of Right to argue that concrete recongnitive spheres are the fields that the freedom be realized, or the field of self-realization. On the contrary, rights and moral freedom as self-determination are only the possibility of freedom. Therefore, Honneth’s social theory is against Kant’s thesis of primacy of self-determination, and holds that ethical life or self-realization is the actuality of freedom. Legal rights don’t lose its importance in such kind of ethical social theory, because they are regarded as the necessary condition of the modern ethical life. The collision between self-determination and self-realization is therefore only a social pathology which can be cured with social freedom.
In this theory, rights are not the whole picture of the theory of freedom or justice, but only its temporal protection. Even in social freedom, Rectsstaat and public sphere are only one moment of justice, a theory of justice cannot be complete without analysis of personal relationships and market economy. The most important is, that besides the government and the law itself, the recognitive culture accumulated through struggles for recognition is the real environment for realization of freedom. But this does’nt mean that legal rights and jurisprudence are useless; in order to reach social emanicipation, we need a jurisprudence for critical intervention.
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