The ERC’s call for proposals on ‘rule of law compliance’ in June 2025 was motivated by the grave concern that the ‘rule of law’ in Europe is under threat. We have taken this a step further at the Émile Durkheim Research Unit by stating in our application – which received a positive evaluation from the ERC – not merely a crisis of the “rule of law” but a “crisis of law”, and perhaps even more far-reaching, a “crisis of obligation”.
In the ERC Commission’s review, it played an important role that the theoretical approach was understood as a continuation of the ‘Law as Culture Paradigm’. This was developed at the Käte Hamburger Research Group ‘Law as Culture’, but is based on work dating back further. In ‘Social Theory and Law. Law in the Sociological Discourse of Modernity’ (1993), I attempted to apply Jürgen Habermas’s ‘theory of communicative action’ (1981) to a more comprehensive, cultural-sociological analysis of law. This brought into focus the symbolic and cognitive constitution of the world through law (following George Herbert Mead and Alfred Schütz), allowed the fundamental question of order theory borrowed from Hobbes regarding the significance of law for the formation of social order (following Talcott Parsons) to be addressed, and enabled the systems-theoretical articulation of the system world and the fundamental processes of law formation to be integrated with Niklas Luhmann. Through a re-reading of Émile Durkheim as a ‘juridification of the sacred’ and a ‘sacralisation of law’, Jürgen Habermas’s productive interpretation of Durkheim could be further developed, just as Max Weber’s provocative interpretation as a communicative theory of legal consensus could be consolidated in the interpretation of the category of ‘consent’. In this respect, the Law as Culture Paradigm has benefited decisively from the synergistic power of the ‘theory of communicative action’!
If we today perceive the collapse of international law, the threats to judicial autonomy, the erosion of the fundamental principles of the separation of powers, the significance of fundamental judicial rights and human rights in Western societies (!) and, even more fundamentally, the principle of functional differentiation of spheres as such to be in danger (as also discussed in our panel discussion on 10 February 2026, online), then for both theoretical reasons and practical political convictions, no one has advocated as strongly as Jürgen Habermas in recent decades that this legacy of a democratically dynamic order must be preserved and strengthened through the medium of law.
In this sense, I see our aim in the EU project as being to preserve legal criticism (from Goethe to Kafka) whilst also strengthening the integrative functions of law in European societies in such a way that eroding faith in and trust in the law are regained, remaining committed to the legacy of Jürgen Habermas, within the context of the EU’s political order, which once constituted itself as a ‘community of law’.
I wished to recall this – following the death of Jürgen Habermas – and at the same time urge that we do not squander this legacy. It is also a tribute to Jürgen Habermas, who, in the early 1980s, bestowed upon an assistant without a doctorate the precious gift of being allowed to observe a grand master of thought in dyadic interaction and to draw lasting inspiration from it.
Prof. Dr. jur. Dr. h.c. Werner Gephart
Émile Durkheim Research Centre: Crisis Analyses
University of Bonn
Director
Ancien Professeur de SciencesPo
Honorary Artist, King's College
Argelanderstraße 1
53115 Bonn
w.gephart@uni-bonn.de/wernergephart@gmail.com
www.edf.uni-bonn.de