The Special Case Thesis. An Assessment of R. Alexy's Discursive Theory of Law

Legal Argumentation Theories seek mainly to develop procedures, criteria and principles which can guarantee a proper justification of legal propositions within modern legal systems. In doing this, those theories solicit in general an interconnection between practical reasoning and legal reasoning. This paper refers mainly to what seems currently to be the most elaborate theory of legal argumentation, that is R. Alexy's Theorie der juristischen Argumentation. Although the discussion is mainly concentrated on critical points of R. Alexy's theory, this paper's scope is slightly broader; it attempts to present an overall view of the current discursive theory of law. This is mainly performed through the critical examination of R. Alexy's Special Case Thesis, which seems to raise a handful of counter arguments on behalf of the other proponents of Legal Argumentation. In the first part the special case thesis is presented, as well as the main objections to it. In the second part the validity of the special case thesis is checked against K. Günther's model of practical discourse, which proves to be more elaborate in certain points, when compared with the corresponding model of R. Alexy. In the third part it is shown that the special case thesis can be accepted consistently only if it is combined with a normative theory of law that advocates the interconnection of the concept of law with the idea of right morality. It is further suggested that legal discourse has to be perceived as a special case of a broader moral-political discourse that “explains” or “justifies” (morally) the various restrictions that the positive legal systems impose on the legal discourse.     

Robert Alexy and the Dual Nature of Law

Robert Alexy's claim that law of necessity has a dual nature raises many interesting philosophical questions. In this article, I consider some of these questions, such as what the meaning of the correctness thesis is, whether Alexy's discourse theory supports this thesis, and whether the thesis is defensible; whether Alexy's argument from anarchy and civil war supports the claim that law of necessity has a real dimension; and what the implications are of the use of moral arguments, such as the argument from injustice, for the status of Alexy's inquiry.     

Norm Enactment and Performative Contradictions

In this paper we investigate the role of performative contradictions in legal discourse. First of all we identify the argumentative roles of performative contradictions and two possible interpretations of them. With this done, we show that one use of performative contradictions can be fruitfully applied in analysing normative speech acts implementing norm enactment, namely, those speech acts that are designed to produce new legal norms. We conclude the paper by showing that our analysis provides strong support for Robert Alexy's claim‐to‐correctness thesis, according to which speech acts of the norm‐enacting kind raise a claim to correctness.     

An Antinomy in Alexy's Theory of Balancing

This article argues that Robert Alexy's influential theory of balancing is affected by a contradiction that makes it unfeasible as an instrument by which to explain some aspects of law and legal reasoning it aims to clarify. In particular, I will show that one of the premises of Alexy's theory of balancing is incompatible with its conclusion. Alexy's theory is based upon a sharp distinction between rules and principles. However, as my analysis will demonstrate, its conclusion implies that it is impossible to distinguish between rules and principles. This is because the so-called weight formula and the law of colliding principles (i.e., the two main notions used by Alexy to explain balancing) cancel out any difference between these two types of norms.     

Scarcity,Discourses of Implementation,and Habermasian Law and Democracy

This paper contains a critique of Habermas' discourse theory of law and democracy from an economic perspective. An example drawn from Klaus Günther's work on discourses of application suggests the failure of discourse ethics to adequately account for the problem of scarcity. This blindpoint is reflected in Habermas' legal theory through the latter's inadequate recognition of the internal connection between markets and law. Discourses of implementation are introduced as a discourse‐relevant procedure to account for the problem of scarcity. Consensus, as defined by Habermas, cannot be the agreement mode applicable to discourses of implementation.     

从法律原则到个案规范——阿列克西原则理论的民法应用

司法中针对某具体个案适用法律原则的通常情形是,没有既有规则可以适用(即"穷尽规则"),或者尽管有规则,但因其与原则相冲突而被排除适用。这两种情形的规范表现在实质上均可理解为原则之间的冲突。在相冲突的原则中确定何者最终适用于该具体个案,恰是阿列克西原则理论(尤其是其"竞争法则")所要解决的问题。适用"竞争法则"的核心在于找寻与确立优先条件或变量,相较于阿列克西的比重公式,参照生活常情或"事物本质"能为其找寻与确立提供更为具体的实践操作路径,因为优先条件或变量的确立由此转变为找寻连接基本案件事实与优先原则的中点(此即"裁判案件要确定的核心要素")。以"竞争法则"为理论根基,再辅之以确立优先条件或变量的具体路径,原则的规则化便水到渠成:即通过具体的优先条件或变量确立相冲突原则中优先适用的原则(即优先原则),适用优先原则的结果便是创设一个规则(即个案规范),优先条件或变量进而成为该个案规范的构成要件。个案规范才是裁判该具体个案的直接依据。     

On the Necessity of the Interconnection between Law and Morality*

Abstract. By taking issue with Robert Alexy's claim to correctness, I attempt to cast light on the nature of the necessity that pertains to the claim. With respect to it, I argue that it should be understood as deriving from the metaphysical requirements for normative knowledge in general. These requirements are shown to include a general norm of autonomy which is a priori and necessary, and comprises a minimal morality. The line of reasoning is compatible with discourse theory, but does not presuppose it; therefore more far‐reaching conclusions can be drawn.     

Alexy's Thesis of the Necessary Connection between Law and Morality

This paper criticizes Alexy's argument on the necessary connection between law and morality. First of all, the author discusses some aspects of the notion of the claim to correctness. Basically, it is highly doubtful that all legal authorities share the same idea of moral correctness. Secondly, the author argues that the claim to correctness is not a defining characteristic of the concepts of “legal norm” and “legal system”. Hence, the thesis of a necessary connection between law and morality based on such claim cannot be accepted. 1 Abstract by Antonino Rotolo.
     

Levinasian Ethics and Legal Obligation*

Abstract. This paper discusses the implications of the ethical theory of Emmanuel Levinas for theoretical debates about legal obligation. I begin by examining the structure of moral reasoning in light of Levinas's account of ethics, looking particularly at the role of the “third party” (le tiers) in modifying Levinas's primary ethical structure of the “face to face” relation. I then argue that the primordial role of ethical experience in social discourse, as emphasised by Levinas, undermines theories, such as that of H. L. A. Hart, that propose a systematic distinction between legal and moral species of obligation.     

Women's Defences

ABSTRACT

This paper examines theoretical and practical problems surrounding the use of women's defences such as Battered Woman's Syndrome, Premenstrual Syndrome and Postpartum Depression. A framework for deconstructing women's defences which exposes power relationships preserved by legal discourse is offered. The central argument presented is that a contextual examination which links practice to theory reveals that women's defences are not necessarily harmful to women, but that specific feminist strategies must be developed to ensure that such defences do not replicate existing power-knowledge dynamics within legal discourse.     

The New Legal Realism and The Realist View of Law

New legal realism (NLR) furthers the legal realist legacy by focusing attention on both the pertinent social science and the craft that typifies legal discourse and legal institutions. NLR's globalized ambitions also highlight the potential of a nonstatist view of law. The realist view of law raises three challenges facing NLR: identifying the “lingua franca” of law as an academic discipline within which NLR insights on translation and synthesis should be situated; conceptualizing NLR's focus on bottom‐up investigation, so that it does not defy the rule of law; and recognizing the normative underpinning for NLR's reformist impulse.     

The Limits of Institutionalised Legal Discourse*

Abstract. One of the most powerful accounts of the necessary connection between law and morality grounded on the openness of communication is provided by Robert Alexy, who builds a discourse theory of law on the basis of Habermas’ theory of general practical discourse. In this article I argue that the thesis based on the openness of legal discourse is problematic in that it does not provide a convincing account of the differentiation of legal discourse from other practical discourses. I offer an understanding of the institutionalisation of legal discourse as the tacit commitment of the participants to their shared normative experience and in particular in: 1) the possibility of containing normative force in space, 2) the possibility of transforming word into deed, 3) the possibility of grasping and controlling time and 4) the possibility of transforming deed into word. That commitment of participants in legal discourse is revealed as a set of fundamental assumptions embedded in all legal utterances, which provide the necessary bedrock that makes communication possible. It also provides a basis for the institution of legal discourse, to the effect that their problematisation signifies a departure from the latter.     

The Theory of Legal Dynamics Reconsidered*

Abstract. The author criticizes Kelsen's distinction between static and dynamic systems of norms and his theory of legal dynamics. The author moreover presents the institutionalist conception of legal dynamics. Kelsen's concept of static systems is incompatible with normological scepticism: The deduction of rules from a basic principle depends on additional premises; even in static systems there is a kind of dynamics produced by actual facts. Kelsen's conception of legal dynamics is also incompatible with normological scepticism and with Kelsen's demand of purity of jurisprudence. In the institutionalist conception Iegal dynamics is rather conceived as an interplay of legal norms and facts. Empowering relations, the principle of co-validity, temporal limits of norms, derogation, legal validity and the basic norm are analysed accordingly. Appendices deal with Paulson's empowering theory of legal norm and Lippold's double-faced reconstruction of the legal order.     

Instituting Authority. Some Kelsenian Notes

A rule of recognition for a legal order L seems utterly circular if it refers to behaviour of “officials.” For it takes a rule of recognition to identify who, for L, counts as an official and who does not. I will argue that a Kelsenian account of legal authority can solve the aporia, provided that we accept a, perhaps unorthodox, re‐interpretation of Kelsen's norm theory and his idea of the Grundnorm. I submit that we should learn to see it as the vanishing point rather than the final basis of validity in a legal order. To prepare the ground for this proposal, I will briefly explore the claim to authority that is characteristic of politics. Then I sketch a multi‐layered canonical form of the legal norm, including their “empowering” character (Paulson) in terms of performative operators. I show how it leads to a “perspectival” account of the basic norm. In conclusion, I briefly point to the example of sovereignty and acquis communautair in international law to illustrate this view     

The Special Case Thesis

The author outlines his thesis that legal discourse is a special case of general practical discourse ( Sonderfallthese ) and develops it as an attempt to cover both the authoritative, institutional, or real and free, discursive, or ideal dimension of legal reasoning. On this basis, he examines the objections raised by Habermas (1996) to the special case thesis. First, he discusses the reduction of general practical discourse to moral discourses ( genus proximum problem) holding that the former is a combination of moral, ethical, and pragmatic arguments within the priority of just; second, he examines the objection that general practical arguments change their character or nature when employed in legal contexts (subset and specification problem) and the related problems concerning legal validity and unjust law. He concludes proposing a procedural (opposite to a coherential) integration of general practical arguments in the legal context.     

Discourse Ethics and the Legitimacy of Law

Abstract. The reconstructive theory of the procedural legitimacy of modern law developed on the basis of the theory of discourse ethics has limited itself solely to the deontological, moral-normative aspects of the validity claims of legal norms and judgments. However, teleological and axiological aspects are also intertwined with legal validity claims and with the procedures in which legal norms and judgments are produced. The discursive-procedural concept of legitimacy seems to require as its support, instead of the theory of discourse ethics, a general theory of practical discourses or, more generally, of rational collective will-formation.     

The Fundamental Contradiction Redux? Liberty,Coercion, and American Legal Development

In Liberty and Coercion: The Paradox of American Government from the Founding to the Present, Gary Gerstle offers an ambitious account of American legal development from our nation's founding up to the present day. In many ways, Gerstle's account is in keeping with the long scholarly tradition of linking legal liberalism with changes in American law and politics. However, Liberty and Coercion also calls to mind critical legal scholarship, most notably Duncan Kennedy's “The Structure of Blackstone's Commentaries” and the idea of the fundamental contradiction. After reconstructing Kennedy's central claims, I highlight how they actually undermine Liberty and Coercion and jeopardize the larger legal liberal tradition.     

Asking the Sovereignty Question in Global Legal Pluralism: From “Weak” Jurisprudence to “Strong” Socio‐Legal Theories of Constitutional Power Operations

The article examines recent theories of legal and constitutional pluralism, especially their adoption of sociological perspectives and criticisms of the concept of sovereignty. The author argues that John Griffiths's original dichotomy of “weak” and “strong” pluralism has to be reassessed because “weak” jurisprudential theories contain useful sociological analyses of the internal differentiation and operations of specific legal orders, their overlapping, parallel validity and collisions in global society. Using the sociological methodology of legal pluralism theories and critically elaborating on Teubner's societal constitutionalism, the author subsequently reformulates the question of sovereignty as a sociological problem of complex power operations communicated through the constitutional state's organization and reconfigured within the global legal and political framework.