Discourse Theory and the Theory and Practice of Adjudication
Discourse Theory and the Theory and Practice of Adjudication
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
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