Cardozo Law Review
Abstract
Jurgen 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 theory of the democratic constitutional state whose basic idea is the association and self-determination of free and equal consociates under the law. 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 internal to the theory. On the other hand, the positive law remains dependent on discourse theory in order to equate legality with legitimacy. Thus, ideal and reality are connected.
Keywords
Human Rights Law, Constitutional Rights, Constitutional Law, Democracy, Political Systems and Governments, Jurisprudence
Disciplines
Constitutional Law | Human Rights Law | Jurisprudence | Law
Recommended Citation
Robert Alexy,
Jurgen Habermas’s Theory of Legal Discourse,
17
Cardozo L. Rev.
1027
(1996).
Available at:
https://larc.cardozo.yu.edu/clr/vol17/iss4/12