It is hardly controversial that the modern law is a pivotal element in the process of societal rationalization. But the concept of rationality (or rationalization) is rather vague and ambiguous; even beginning to clarify it requires elements of a social theory. The law is not a quasi-technical, neutral “instrument” which can be applied in any society for any purpose. Rather, as an element of a society's structure it not only codetermines its specific mode of reproduction but informs us about the standard of civilization a society has attained. Throughout this essay I shall take the position that, for reasons of politics, morality, and what I understand to be ongoing requirements of justification in stable societies, we wish to privilege law in some way. This position is closely connected with the quest for legal rationality.

Preuss' paper significantly advances the critical theory of law. As a side benefit, he provides English-speakers with an excellent introduction to the work of two leading West German participants in the debate, Jürgen Habermas and Gunther Teubner. Preuss' paper reveals considerable common ground between critical legal theorists in Germany and the United States, but also important differences of perspective and concern. I suspect that many American legal critics will think that Preuss' criticisms of Habermas and Teubner do not go far enough, that his criticisms raise a fundamental challenge to the current emphasis on structure and system in the German debate. In any event, Preuss' paper suggests the usefulness of a greater German “reception” of the American emphasis on agency and social construction. No doubt American legal criticism would likewise be enriched by entering into a more sustained dialogue with structuralist and systems theory.

The practical principle of legal certainty, in the sense of a regularity and calculability of legal practice, has a “deep structure”, which can be found in Kant's attempt at a new foundation of morality through universalistic formality. In both cases the concern is identical: to break with the dispersed local practices used to integrate norm and facts, and to execute a break which would at last give normativity a systematic independence. The existence and continuity of substantial tradition, of particular customs, should be interrupted by the pre-supposition of a law distinguished by its pure, universalistic form. The unified life-world (Lebenswelt) would thus be split into norm and norm-application, thereby founding a new meaning-giving deduction of practice. Action could find normative meaning only through the fracturing of the continuity of life-contexts in the mirror of the generalized other.

Where do American and German critiques of their respective “mainstream” legal traditions converge, and where do they diverge? When can the convergences be interpreted as common learning experiences with modern law, as insights into the futility of critical efforts, as indications for their correction? Which divergences are due to differences between the legal cultures and philosophical traditions? Where are they reactions to more specific socio-political constellations and particular structurings of the respective academic systems? From which projects can the “other side” gain new insights, or perhaps entirely new perspectives? Such questions inevitably arise from a volume devoted to German and American critical and socio-theoretical contributions to the discussion of legal theoretical fundamentals. Yet they demand too much from an individual author (at least this one), and their enumeration is intended to make clear the sort of difficulties they occasion and suggest how they might be fruitfully dealt with.