Jürgen Habermas’s Theory of the Indeterminacy of Law and the Rationality of Adjudication

Abstract

Every theory of legal argumentation has to determine the relation between legal certainty and correctness, which essentially includes justice. This, in turn, requires that the specific character of legal argumentation be expounded. The special case thesis, developed in A Theory of Legal Argumentation (1989), is an attempt to achieve both. The thesis says that legal discourse is a special case of general practical discourse. Habermas criticizes the special case thesis in his book Between Facts and Norms (1996). Counterarguments against four of his objections are presented in this chapter. They concern the relation between legal and moral discourse, the rules and forms of legal discourse, the problem of unjust law, and the question of whether general practical arguments acquire a specific legal nature in legal discourse.