The Preconditions of Rational Legal Discourse

Thus the preconditions of the rational (legal) discourse are (1) freedom, (2) truth, (3) normative correctness and (4) sincerity. According to Habermas, they are the universal requirements of all (rational) human communication.

A critic may maintain that the Habermasian criteria are problematic as to their universality. Habermas has only introduced an articulation of the Western concep­tion of rationality, and this kind of rationality does not, therefore, exceed the cultural borders. This is, however, only an empirical counter-argument. As far as the concep­tual foundation of rationality is concerned, the Habermasian criteria can be defined as universally valid. They belong to the notion of rational communication.

Things being so, the terms of truth and correctness have a key role (Habermas 1973, 218; Toulmin 1976, 232). According to the correspondence theory of truth, a proposition (sentence) is true if, and only if, the state of affairs to which the proposi­tion refers actually exists. The truth is a relationship between a proposition and fact. Let us take a simple example:

Q1: What colour is this paper?

A1: The paper is white.

The answer notes the paper's quality of “being white”. If things are as they are claimed to be, the answer is empirically true according to the correspondence theory. This can be called a Tarskian truth. The answer can be tested empirically. On the other hand,

Q2: What should I do in a situation like this?

A2: You should greet him politely.

This answer is neither true nor untrue. The answer A2 expresses a normative standpoint, the correctness of which can be questioned, and this doubt is the reason for providing additional reasons.

Even though the “truthfulness” of the answer A2 is impossible to test empiri­cally, the respondent cannot evade the demand for reasoning since the discourse is founded on a tacit claim of correctness. In this way, the conditions for acceptabil­ity are conceptually connected to the criteria of rational discourse. If reasons are not provided in a situation like this - where, for example, the correctness of the norm has been questioned - the speaker is violating the preconditions of rational communication. He or she has not accepted the necessary basic demand of rational discourse - that is, the expectation of reaching mutual understanding. The speech situation either breaks off, or the speaker tries to convince the other participant by means of pure authority or, for instance, manipulation.

The communicative procedure in which the truth is tested is theoretical discourse (Alexy 1989, 199, 232). Its counterpart, the practical discourse, aims at providing arguments for the correctness of normative statements. However, the theoretical as well as the practical discourse has only one functional principle: let the arguments speak for themselves. For this reason, the discourse has to be free from external influence, especially from coercion, manipulation and persuasion. In this kind of ideal situation, the rules and principles of rational discourse guarantee the (possible) acceptance and acceptability.

Jürgen Habermas goes much further than this. He does not accept the traditional correspondence theory at all. He makes a distinction between the notions of “fact” and “object”. Facts are what statements state, what objects of experience are in the world. For Habermas, the facts are dependent on language, but, at the same time, the truth value of propositions is dependent on facts.

In this contribution the concept of truth has been understood in the Tarskian sense of the term, not in the Habermasian. A proposition is true if, and only if, it corresponds to the reality. The concept of coherence, in its turn, is more connected to the criteria by means of which the correspondence can be reached. However, in all cases where the correspondence between a proposition and reality is (at least) problematic, the traditional theory of truth loses its explanatory force (Wintgens 1993, 483). This is the case with DSL as an “interpretative science”. There is no “reality” to which the interpretative statements could be in “correspondence”. The shared beliefs as the basis of the legal ontology are not the same as “empirical legal reality”. The idea of shared beliefs already points out that there is no “direct” connection to the reality. The facts of law are institutional facts.

The Habermasian consensus theory is not accepted in this study as a general theory of truth. However, its hard core - that is, the connection with communication and communicative rationality - as well as the significance of consensus in legal reasoning has to be taken seriously. From the viewpoint of legal reasoning, all of these elements help to understand the special features of DSL.

In recent years, the theory of legal argumentation has seen many attempts to specify those conditions for discursive rationality that Habermas has presented. This does not mean so much formulation of new principles or a new form of rationality, but articulation of the principles being the foundation of practical discourse.

There is no need to introduce the rules and principles of D-rationality in detail here. It is enough to refer to that which Robert Alexy has presented in many contexts (Alexy 1989, 177; Peczenik 1989, 187; Aarnio 1987, 196). According to Alexy, D-rationality is assumed to be a special case of practical discourse (Sonderfallthese: Alexy 1989, 15, 212, 1999, 374; cfr Günther 1993, 143). Philosophically, it is con­nected with the Aristotelian thematics on practical reason. Discourse according to the practical reason is “good discourse”, given that the analyses Aristotle makes of virtues and St. Thomas Aquinas of inclinations are not in the foreground in the characterisation of rational discourse.