Habermas: The Discourse Theory of Law and Democracy

By Hugh Baxter | Go to book overview

CHAPTER THREE
Discourse Theory and the
Theory and Practice of Adjudication

With his “testing” of the reconstructively developed discourse theory, Habermas shifts from a “philosophical” standpoint to “the perspective of legal theory proper.” From this latter standpoint, the focus is on adjudication and, in particular, on adjudication as seen from “the judge’s perspective.” Certainly, as Habermas notes, this is the dominant perspective in legal scholarship. According to Habermas, this is not simply a matter of parochialism or traditionalism but a legitimate theoretical decision. His stated reason is as follows: “Because all legal communications refer to actionable claims, court decisions provide the perspective from which the legal system is analyzed.”1

That reason does not sufficiently support a methodological commitment to court-centered legal theory. Habermas’s strategy is particularly strange given his statement, in the same general discussion, that on his approach “political legislation” is “central” and his acknowledgment that one can analyze political legislation from the standpoint of legislators, agencies, citizens, and interest groups.2 Certainly one also could investigate law’s effects (or lack of effects) outside the courtroom, even if one sees law primarily as creating “actionable claims.”

But Habermas is correct that if discourse theory is to “prove itself” as a theory of law, then it must provide an account of adjudication. To be sure, adjudication need not be understood only from “the judge’s perspective.” The perspectives of lawyers, the parties, and jurors are obvious alternatives, or better, supplements. But Habermas is right that one basic question of legal theory concerns how judges do and should decide cases. That

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