*I am grateful for the insightful suggestions of Kenneth Baynes, Joseph Heath, Terrence Kelly, Thomas McCarthy, Ed Zajac, and Christopher Zurn.Do Rights Have a Formal Basis? Habermas Legal Theory and the Normative Foundations of the Law*KevinOlson Political Science, University of California, IrvineCIVIL and political rights have long been our most powerful devices for reforming administrative bureaucracies. In order to hold royal authority in check, early liberals postulated individual rights against the state, setting boundaries between private life and state action. Prohibitions on state action are no longer enough, however. The dynamic development of globalized capitalism and the social complexities brought about by colonialism, slavery and immigration show us that autonomy cannot be preserved simply through negative guarantees of freedom. Modern constitutionaldemocratic states are charged with providing the means of equality and autonomy for their citizens in increasingly complex economic, social and political circumstances. The expanded role of rights in our social and political life brings up a number of troubling issues, however. It is no longer clear what tasks a system of rights ought to accomplish, or even whether some of the states new tasks ought to take the form of rights. These issues pose a fundamental paradox for legal theorists: we usually think of rights as elements of a system of positive law. As such, they are posited by the legislative body of a particular nation-state and are a unique expression of that body. If this is the case, though, there should be no overall unity of purpose or design among various conceptions of rights. As a result, it seems that theorists should have little to say about how rights ought to be formed or how they should shape the actions of the administrative state. Jrgen Habermas has developed a generalized theory of rights designed to guide the formation of contemporary constitutional democracies. He lays out ageneral scheme of functionally defined categories that include various kinds of civil, political and social rights. He claims that a constitution would need toinstitutionalize rights fulfilling each of the functions he specifies. The question immediately arises, however, whether these kinds of generalized conclusions are possible if we see rights as elements of positive rather than natural law. For legalThe Journal of Political Philosophy: Volume 11, Number 3, 2003, pp. 273294 Blackwell Publishing, 2003, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.positivists the actual positing of the law has an uneasy relationship with any sortof principled justification that might be given for it. This issue is particularly pressing for Habermas, whose work is often misinterpreted as a kind of crypto- transcendental metaphysics. Unfortunate interpretations of this kind are not helped by Habermas own remarks about the “weak transcendental force” of his arguments, nor by his conscious self-association with Kant. In an Anglo- American legal culture built upon traditions of legal positivism, realism, and pragmatism, anything that smells of natural law is quickly rejected as an unwelcome foreign import. This association with natural law is unfortunate, because Kantian forms of argumentation can provide us with powerful tools oflegal reasoning and justification. Their acceptance, however, depends upon how successfully their metaphysical heritage can be set aside and how well they can be integrated into the existing empiricistliberal tradition. In this essay I claim that the methodological innovations of Habermas “reconstructive” theory of rights are both underappreciated and underdeveloped. To re-evaluate reconstructivism I will delineate its methodological structure more carefully, resituate the normativity of law in an unorthodox form of contractarianism, and outline an empirical research project connecting philosophical idealizations with actual political culture. Thisview finds a principled perspective for legal criticism within the positing of the law itself.I. ONE POST-METAPHYSICAL PATH AWAY FROM KANT: RECONSTRUCTIONImmanuel Kants legal theory is a paradigm case of natural law. Kant claims that morality is “internally binding” on the human will because individual acts are governed directly by commands of reason. In contrast, positive law is “externally binding” on human conduct. Individual laws do not command our actions through reason, but through our inclination to avoid penalties. Adherence to the law in general, however, is commanded by reason; and its content is rooted in morality.1 The law, in other words, acquires its legitimacy from morality, and it is thus intertwined with morality in important ways. As a consequence, moralreasoning exerts a powerful regulatory influence on the law for Kant. It provides the basis, as we would now say, for a normative critique of the law. This kind of legal reasoning was r