Discursive Theory of Law

This chapter is devoted to the analysis of Habermas’s discursive theory of law. The relationship between morality and law is particularly significant here. The analysis begins with a significant reference to which Habermas often turns, namely Immanuel Kant. The analysis of the discursive theory of law goes through the analysis of the dichotomies of natural versus positive law, private versus public autonomy, liberalism versus republicanism, natural rights versus sovereignty. Habermas’s approach is by calling for the discourse to accept neither of the extremes in the dichotomy. Thus, he does not accept that human rights are a pre-political category, just as he does not accept that sovereignty is popular. Human rights and sovereignty are the fruits of discourse. For the discourse to function, a public sphere, democratic institutions, and a legal framework are needed, which will establish the procedures in which the debate will take place and understanding and consensus will be reached.