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17 Cardozo L. Rev. 1027 (1995 - 1996)
Jurgen Habermas's Theory of Legal Discourse

handle is hein.journals/cdozo17 and id is 1045 raw text is: JURGEN HABERMAS'S THEORY OF LEGAL DISCOURSE Robert Alexy* Jtirgen Habermas's discourse theory of law attempts to show that the ideal contents of the discourse principle can be realized within the institutional frame of a legal system. The result is a the- ory of the democratic constitutional state whose basic idea is the association and self-determination of free and equal consociates under the law.1 This theory is far more than a mere application of discourse theory to the law. Discourse theory, on the one hand, demands the institutionalization of a legal system for reasons inter- nal to the theory.' On the other hand, the positive law remains dependent on discourse theory in order to equate legality with le- gitimacy. Thus, ideal and reality are connected. On the way to a discourse theory of the law one encounters essentially all the problems of legal philosophy and theory, consti- tutional theory, and political philosophy. This can only be so be- cause an adequate theory of the law can only be successful as a comprehensive theory of the legal system. It is not possible to present Habermas's system in full here, nor is it possible to com- ment critically on all its aspects. I shall therefore consider the basic ideas of discourse theory as given and concentrate on the question of whether Habermas's theory of legal discourse is adequate as a theory of the rationality of adjudication. I. FACTICITY AND VALIDITY The governing topic of Habermas's theory of law is the tension between facticity and validity. In legal discourse, this tension manifests itself as a tension between the principle of legal cer- tainty and the claim to a legitimate application of law, that is, to render correct or right decisions.''3 In short, the tension is between the certainty of law and its rightness.4 A theory of legal dis- * Professor of Public Law and Legal Philosophy, Christian Albrechts University, Kiel, Germany. 1 See JORGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A Dis- COURSE THEORY OF LAW AND DEMOCRACY 176, 387 (William Rehg trans., 1996). 2 See id. at 223. 3 Id. at 197. 4 Id. at 199. 1027

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