Jump to ContentJump to Main Navigation
HabermasThe Discourse Theory of Law and Democracy$
Users without a subscription are not able to see the full content.

Hugh Baxter

Print publication date: 2011

Print ISBN-13: 9780804769129

Published to Stanford Scholarship Online: June 2013

DOI: 10.11126/stanford/9780804769129.001.0001

Show Summary Details
Page of

PRINTED FROM STANFORD SCHOLARSHIP ONLINE (www.stanford.universitypressscholarship.com). (c) Copyright Stanford University Press, 2019. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in SSO for personal use.date: 23 September 2019

Discourse Theory and the Theory and Practice of Adjudication

Discourse Theory and the Theory and Practice of Adjudication

Chapter:
(p.106) Chapter Three Discourse Theory and the Theory and Practice of Adjudication
Source:
Habermas
Publisher:
Stanford University Press
DOI:10.11126/stanford/9780804769129.003.0004

Jürgen Habermas's attempt to “test” his reconstructively developed discourse theory signals his transition from a “philosophical” standpoint to “the perspective of legal theory proper.” Habermas argues that discourse theory can “prove itself” as a theory of law by providing an account of adjudication, and that one basic question of legal theory concerns how judges do and should decide cases. In the context of adjudication, the tension between facticity and validity appears as a tension between “certainty” and “legitimacy.” Habermas distinguishes his discourse-theoretical approach from three prominent theories of judicial decision making, each of which fails to reconcile the certainty and legitimacy requirements: legal realism, legal positivism, and legal hermeneutics. This chapter examines Habermas's discourse theory and the theory and practice of adjudication and compares his ideas with Ronald Dworkin's account of adjudication.

Keywords:   discourse theory, Jürgen Habermas, Ronald Dworkin, adjudication, certainty, legitimacy, judicial decision making, legal realism, legal positivism, legal hermeneutics

Stanford Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.

Please, subscribe or login to access full text content.

If you think you should have access to this title, please contact your librarian.

To troubleshoot, please check our FAQs , and if you can't find the answer there, please contact us.