A Survey on Habermas' Legal Discourse as the Logic of Law

Document Type : Original Article

Authors

1 Associate Professor, Department of Private Law, Faculty of Law, University of Qom, Qom, Iran

2 PhD. Student, Baqir al-Olum University, Qom, Iran

Abstract

The main purpose of the current study is to examine Habermas' legal discourse as the logic of law. In Habermas' theory regarding legal discourse, the process of legal norming is considered as a method for the rationality in the field of legal reasoning, along with formal and material logic. In his regard, modern law is a concept having still needed moral justification, in order to measure the validity of its legal norms. On this occasion, his legal discourse has a direct relation with practical discourses, including moral discourse. Habermas is considered alike those who counted the material logic of law to be rhetorical. In his point of view, the goal and result of legal reasoning is to achieve content & persuasion. Habermas's theory can be regarded as the logic of law; Because its responses can be classified as one of the methodological questions of legal reasoning in the general sense. However, the difference between his view and other legal rhetoricians is toward his believes in a way that to achieve persuasion is to consider legal issues. He insists on the method of dialogue as the only prelude to reaching agreement and persuasion. While the persuasiveness of the legal argument, in the opinion of other rhetoricians, is not necessarily achieved through dialogue. The hidden secret of such difference lies in the legal ecology of Habermas' legal theory. He presents his theory at the level of public rights and especially fundamental rights including the main components of the state and its four formal and material constituent elements. Therefore, he elaborates the founding force of the state, the relationship between the state and the people, basic rights and freedoms, and etc.

Keywords

References

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Journal of Philosophy of Law
Volume 2, Issue 2
December 2023
Pages 127-146

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History

  • Receive Date: 15 October 2023
  • Revise Date: 13 January 2024
  • Accept Date: 03 February 2024

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