He Jing

(School of Law Nanjing Normal University，Nanjing Jiangsu 210000)

As the second generation leader of Frankfurt School，Habermas puts forward the“theory of communicative action”，which is the foundation of his whole theoretical system．The theory of communicative action aims at mutual understanding and achieving agreement by means of languages．This theory is significant and thought-provoking in the reconstruction of China’s legal culture and the construction of harmonious society．Learning from the theory of communicative action can not only accelerate the socialist rule by law course of China，but also boost the implementation and practice of socialist rule by law concepts of China．Therefore，we should analyze the connotation of this theory and further discuss its significance on the reconstruction of Chinese legal culture．

Ⅰ．Content and characteristics of the theory of communicative action

1．Definition of the theory of communicative action

The communicative action proposed by Habermas refers to an interactive action between individuals via languages with the aim of achieving agreement in action．Thus it can be seen that the foundation of the communicative action is linguistics，demonstrating the linguistic communicative actions between two or more parties on the basis of the understanding relations between two or more parties．Habermas holds that human，as high-level animal，should learn to communicate with each other．Habermas points out that the challenge of modernity should be overcome and solved on the basis of the theory of communicative action，and that the“ideological philosophy”must be replaced by“communicative philosophy”．Since the core of the theory of communicative action is communicative action，the reasonability of communication hidden in the communicative action has naturally become the center of communicative action．

2．Content of the theory of communicative action

The concept of“reason”is of great significance in the theory of communicative action．Habermas narrates in the beginning of The Theory of Communicative Action，the traditional theme of philosophical study is the reasonability of ideas and behaviors．It is justifiable to say that reasonability constitutes the basic topic of philosophy．According to Habermas，modernity is just an unfinished project，and the meaning of reason can never fade．Therefore，reconstruction should be made on the basis of criticism．Habermas makes further study on the concept of“reason”by using“communicative reason”．He holds that it is the transformation from ideological philosophy to linguistic philosophy that leads to the profound revolution．Thus，people can reinterpret the contradictive behavior rules and ambiguous social problems from the perspective of subjectivity．

3．Characteristics of the theory of communicative action

Human actions are divided into four categories according to their nature and aims by Habermas．The first one is goal behavior，which is done to fulfill some goals．The second one is standard adjustment behavior，which specifically refers to those suitable for certain life habits or social moral standards．The third one is play behavior，which refers to the detailed image and impression given by the actors to the audience and to some extent covers ones’own nature to realize certain goals．The fourth one is the communicative action stressed by Habermas，which is an interpersonal relationship established by two or more parties who have active ability and linguistic ability．The fourth one possesses the non-purposive，non-instru mental and non-strategic features．

Ⅱ．Analysis of the legal culture of the modern society

With the wave of entering modern society，the past traditional authoritative religion and value have gradually faded．The new leading power and integrated mechanism are the real requirement of current society．In order to maintain social sequence，the media of currency and power should be used to exert the function of integrating society，which is bestowed by law．However，problems have arisen due to the fact that national political power is also the important guarantee of safeguarding law in modern society．It can be seen that national political power is both justifiable and safeguarded by law．It is undoubtedly a circular demonstration．Only by having the aid of external compulsive law can it be implemented in reality，which shows the disadvantage of law that it is only legal but not legitimate．This is why Habermas points out that the major crisis of modern society lies in the lack of legitimacy of law．

According to Habermas，democratic legislative procedure is the true source of legal legitimacy．An ideal and harmonious social situation will come into being in the long run where people are both the rule-makers and the observers of rules，which requires us to build ideal communicative environment with the carrier of citizens and society from the starting point of the mutual communicative reason between people．Action area is the public field of the world we live in，and the political participation of citizens should be stimulated so as to achieve mutual understanding．Only in this way can we construct a legitimate law，not just possess legitimacy．

Only by communicating world and legal system，linking communicative power and administrative power and connecting public field and personal field can we truly realize freedom and democracy and get rid of modern crisis．As citizens of modern nations，we should participate in the practice and turn our perspective from the main body of law to the participants of law．

Ⅲ．Enlightenment of the theory of communicative action of Habermas to the reconstruction of the legal culture of China

The theory of communicative action of Habermas classifies the reasonable action of human with the goal of the different character of different action．He sets up the“ideal communicative situation”，where all participants with reasonable and open attitude share equal and open discussing opportunities and are able to talk about topics freely without being interfered by power．According to Habermas，legal legitimacy is produced as a result of reason，and the two sides should trust each other in their communication so as to realize the legal legitimacy．The self-legislature concept of citizens cannot be simply classified as personal morality，and instead，we should keep neutral and understand the egoism of self-legislature concept．

Habermas holds that the concept of“form”and“essence”should not be used to divide legal morality，and instead，relevant interpretations should be given on the basis of legitimacy and reasonability，which indicates the inner relationship between law and morality．According to Habermas，law is the important order of social leader，and when the normalization of law is violated，there is only instrumentality left．Society is in need of new integration mechanism to take charge since the decline of the value and authority of religion，so as to maintain social order．

The theory of communicative action of Habermas should be leant to accelerate the implementation of the process of rule of law．

1．The identity of value of reconstruction of the legal culture

The deconstruction and criticism of post-modernism theorists have caused debates and challenged the universal value of modern enlightenment，thus causing the doubt of modernity．

（1）抓基礎(chǔ)，強(qiáng)化水運(yùn)提檔升級。堅(jiān)持將加快發(fā)展作為四川水運(yùn)的第一要務(wù)。加快實(shí)施長江、岷江、嘉陵江、金沙江、渠江等5條國家高等級航道達(dá)標(biāo)升級工程，沱江、涪江等2條省內(nèi)高等級航道升級改造工程，全省高等級航道全線達(dá)標(biāo)，干支航道全面提檔升級，構(gòu)建起干支銜接、通達(dá)通暢的航道體系，實(shí)現(xiàn)通江達(dá)海。實(shí)施全省重點(diǎn)港口集疏運(yùn)通道完善工程完善港口功能，優(yōu)化港口集疏運(yùn)體系，拓展發(fā)展新空間。

2．The integration of reconstruction of the legal culture in the economic and political systems

First，reconstruction of the legal culture should take into consideration of its integration with economic transformation．Second，reconstruction of the legal culture should take into consideration of its integration with political system transformation．

3．Promoting the development of human beings and the international relations

The value of legal culture has been widely accepted，but some real problems should also be widely accepted，such as the development problem of human．

Besides，the reconstruction of legal culture should take pay attention to the development of international relations．Obviously，the theory of communicative action of Habermas suits China’s international communication theory which emphasizes peaceful coexistence．

4．Directing the reconstruction of the legal culture

The theory of communicative action of Habermas constructs the universal value norm of legal culture by means of negotiation on the basis of communicative reason，which can not only inherent and promote the traditional value system，but also avoid the loss of cultural value due to the obsolete Soviet Union mode．

Ⅳ．The route of constructing the legal culture of China

1．Deliberative democracy shall refer to the theory of deliberative democracy

As the deliberative democracy institution of China，CPPCC has become more and more important．In terms of political participation，democratic consultation is the important guarantee to realize the broadest political participation．In terms of the coordination of diverse interests，democratic consultation can realize the toleration of all types of interests to the largest extent．In terms of reflecting the voice of the people，only democratic consultation can better show the representativeness and authenticity of socialist democracy．

2．Integrating the competitive mechanism into the democratic election

With the evolution of Chinese society and constant development of democracy，integrating the competitive mechanism into the democratic election has become important in the reconstruction of China’s legal culture．Meanwhile，the coordinate negotiation and argument mechanism should be established in the legislation so that various opinions can be fully demonstrated and consensus formed on the basis of profound thinking and debate．

3．Reinforcing the proceduralist paradigm and the consciousness of law of citizens

The proceduralist paradigm in the theory of communicative action of Habermas stresses the response of the order of rule by law and reflection on it，which apparently contributes to the judicial practice and scientific legislation and is very instructive to China’s reconstruction of legal culture．

Ⅴ．Conclusion

In one word，the rationalistic philosophy of western legal democracy is stated by further exploring the theory of communicative action of Habermas，which should be learnt considering the current legal cultural situation of China so as to accelerate the process of rule by law of Chinese socialism and promote the implementation of the concept of China’s socialist rule by law．

Notes:

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〔4〕童世駿:《正義基礎(chǔ)上的團(tuán)結(jié)、妥協(xié)和寬容——哈貝馬斯視野中的“和而不同”》，《馬克思主義與現(xiàn)實(shí)》2005年第3期，第108-112頁。

〔5〕吳曉春:《試論哈貝馬斯對社會進(jìn)化動力理論的重構(gòu)》，《西南民族大學(xué)學(xué)報(bào)(人文社科版)》2004年第9期，第295-298頁。

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〔7〕艾四林:《哈貝馬斯思想評析》，《清華大學(xué)學(xué)報(bào)(哲學(xué)社會科學(xué)版)》2001年第3期，第6-13頁。