Discourse Theory of Law

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The discourse theory of law , as a modern legal philosophy, represents an application of the assumptions, rules and principles of general discourse theory to the area of ​​the legal system. It is an attempt to overcome the weaknesses of the autopoiesic system theory to establish the moral and democratic legitimacy of the applicable law.

In the assumption of "correct" law, discourse theory is based on its emergence through a certain process, the rational discourse . It is therefore also referred to as procedural legal theory and is to be regarded as an independent draft in relation to material, that is natural and rational law , and formal, usually right positivist , theories of justice.

It was largely developed by Jürgen Habermas and Robert Alexy .

General discourse theory

Fundamental to discourse theory in all its forms is a certain understanding of language and understanding, as Habermas developed in his theory of communicative action . Habermas described the discourse in early writings. It is characterized by an action-relieved , constraint-free utterance situation in which the linguistic means of everyday communication can be used to make checks, consultations and, ultimately, changes. The discourse is dedicated to the truth of a statement, the correctness of the norms assumed for it and the truthfulness of those involved.

According to this, a distinction is made between communicative action, in the form of regularly communication-oriented statements, so-called speech acts , and strictly self-interested “strategic action”. According to this understanding, strategic action behaves parasitically to communicative action, which represents the original mode of speaking. In communicative action, a speaker regularly raises validity claims, which, depending on the statement, appear as such of ( propositional ) truth, ( normative ) correctness and ( subjective ) truthfulness and aim at the consent of his counterpart. If this goal is missed, i.e. if no agreement is reached, then this is the starting point for the discourse, which problematizes the validity claims raised on the one hand and criticized on the other hand and functions as an “appeal body for communicative action”.

The discourse guarantees the possibility of a consensus through the conditions that constitute it, which are inevitably recognized by each of the participants. They were formulated experimentally in “rules of discourse” and aim to create an “ ideal speech situation ” in which nothing more prevails than the “compulsion to use a better argument and the motive of a cooperative search for truth”.

Consensus theory of truth

With the possibility of a consensus under the motive of the cooperative search for truth, Habermas combines a concept of truth under the keyword " consensus theory of truth ", whose criterion for the truth of a statement is "the potential consent of all others" in a discourse free of domination. To this extent, truth is intersubjective consensus. In “Reconstruction of parts of the classical law of reason”, the focus is no longer on the reason of the individual, but on a “communicative reason” that develops out of the ideal speech situation.

Establishing norms through discourse

In transferring these principles to the field of law, law then presents itself as true / right / just if it is the result of a process that creates legitimacy . The legitimacy of rules is measured “by the discursive redeemability of their normative claim to validity”, “ultimately by whether they came about in a rational legislative process - or at least could have been justified under pragmatic , ethical and moral aspects”.

Legal discourse

Because the legal discourse, for example in the context of judicial decision-making or a legislative procedure, can never develop without domination, but takes place under "restrictive conditions such as law, dogmatics and prejudice ", discourse theory undergoes a modification in its application to the area of ​​the application of the law (legal) judgment (which always represents a norm) also justifies under the given conditions.

Alexy carries out this modification with the "special case thesis", according to which the legal discourse, in contrast to the general discourse, is only about the fact that a decision can be reasonably justified within the framework of the applicable order. In this way, the "honesty of a promise" (lack of objection) or the "appropriateness of a maxim" (accident-related information for victims) can be checked. But the “prognostic content” of a statement can also be checked, for example to determine whether a criminally convicted person will no longer commit such a crime in the future as a preventive measure. The following minimum prerequisites apply for the legitimacy of the law: the “ moral ” correctness in an institutionalized system of rights and its establishment in a discursive process of legislation or judicial decision-making.

Alexy defends his thesis that the law is a special case of the general moral discourse in such a way that Habermas wants to measure the legitimacy of a legal norm by it. At the same time, Habermas emphasizes that patience must be shown in legal discourse in order to be able to revive the Kantian categorical imperative for legal life. This against the horizon that the accused can put up resistance in such a way that he lies, questions material and formal law or denies everything or never gives his consent.

Opposing positions

The critique of the discourse theory of law falls into two parts, namely the critique of its basis, the general discourse theory, as well as its special prerequisites as they result in an application to the realm of law. The criticism under the aspect of correct law focuses on the question of whether discourse theory succeeds in adequately justifying its claim to exclusivity. It is disputed that the justifiability of the general rules of discourse / argumentation requirements as stated by Habermas and Alexy is scientifically plausible.

Both cite the "argument of the performative contradiction " in the first place . According to this, a speaker cannot deny the prerequisites that were described above as being necessary for language without coming into contradiction with himself, since he implicitly recognizes them himself through his utterance. This sentence is, however, logically circular, and therefore not suitable for the establishment of certain rules of discourse, because it simultaneously presupposes the named prerequisites and wants to have the result.

Alexys's attempt to justify the rules of discourse through an analysis of the speech act of assertion would also be unsuccessful, because "assertion" in itself represents a historically concrete and contingent speech act; this does not allow a generalization.

In the area of ​​discourse theory of law, criticism can be found above all in the proclaimed minimum requirements for the legitimacy of law. The claim to moral correctness is not redeemable because it presupposes an objectivistic conception of justice. The establishment of a system of rights that fulfills the function of the (occasionally necessary) liberation of the individual from the obligations of communicative action in the area of ​​subjective freedoms (usually negative freedoms) contradicts the statement that a society can only be established through communicative action could be socially integrated. After that, this area would have to be kept as small as possible.

The statement that a partial exemption of people from the obligations of communicative action is required, since they could only inadequately correspond to these in real terms, is significant for assessing the claim of a discursive legislative procedure, since under its premise it cannot be proven that the actors also do one Adopt a communication-oriented attitude. If the law is needed as a secondary integration mechanism in order to relieve people in their task of social integration, the willingness to act communicatively cannot be made a condition for its establishment.

Ultimately, the waiver of the unanimity requirement in the legislative procedure made in the discourse theory of law is ultimately incompatible with the principle of democracy in the form of the principle of consensus.

literature

  • Jürgen Habermas: factuality and validity. Contributions to the discourse theory of law and the democratic constitutional state. Suhrkamp Verlag, Frankfurt am Main, 1992. ISBN 978-3-518-58126-1 .
  • Robert Alexy: Theory of Legal Argumentation . 3rd edition (including a response to a critic), Suhrkamp Verlag , Frankfurt am Main, 1996.
  • Martin Gelter, Kristoffel Grechenig: Legal discourse and legal economics . In: Journal for Legal Policy (JRP) 2007, 30–41.
  • Axel Tschentscher: Procedural Theories of Justice . Nomos Verlag , Baden-Baden, 2000. ISBN 3-7890-6490-4 .
  • Jens Peter Brune: Morals and Law. On the discourse theory of law and democracy by Jürgen Habermas . Verlag Karl Alber, 2011. ISBN 978-3-495-48430-2 .
  • Thomas McCarthy: Critique of the mutual understanding. On the theory of Jürgen Habermas. Frankfurt a. M., 1989.
  • Urs Marti: Legitimation based on discourse ethics and the social function of law. Reflections on J. Habermas' discourse theory of law and democracy. in: Philippe Mastronardi (ed.): The law in the field of tension between utilitarian and deontological ethics. Lectures at the conference of the Swiss section of the International Association for Legal and Social Philosophy (SVRSP) on November 15 and 16, 2002 in Lucerne, 1st edition 2004. ISBN 978-3-515-08366-9 .

Web links

Individual evidence

  1. ↑ Jürgen Habermas : Legitimation Problems in Late Capitalism . Suhrkamp, ​​Frankfurt am Main 1973, ISBN 3-518-10623-6 . P. 148.
  2. ↑ Robert Alexy : Theory of Legal Argumentation. The theory of rational discourse as a theory of legal justification. Frankfurt a. M. 1983 (first edition 1978). Pp. 263-272.
  3. ↑ Jürgen Habermas: factuality and validity. Contributions to the discourse theory of law and the democratic constitutional state. Suhrkamp, ​​Frankfurt am Main 1992, ISBN 3-518-28961-6 . Pp. 281-287.