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Institutionalized ReasonThe Jurisprudence of Robert Alexy$
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Matthias Klatt

Print publication date: 2012

Print ISBN-13: 9780199582068

Published to Oxford Scholarship Online: May 2012

DOI: 10.1093/acprof:oso/9780199582068.001.0001

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Correctness and Legitimacy in the Discourse Theory of Law

Correctness and Legitimacy in the Discourse Theory of Law

Chapter:
(p.291) 13 Correctness and Legitimacy in the Discourse Theory of Law
Source:
Institutionalized Reason
Author(s):

Cristina Lafont

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199582068.003.0013

This chapter focuses on the question of whether the discourse theory of law, as elaborated thus far by Jürgen Habermas and Robert Alexy, contains the resources needed to provide a satisfactory account of two important dimensions of the validity of social norms: their substantive correctness and the legitimacy of their enforcement in a particular political community. It is shown that while such a satisfactory account is indeed possible, the account requires important revisions to the standard interpretation of several assumptions of the discursive approach to legal theory. More specifically, a satisfactory account of the validity of norms requires a direct rejection of the antirealist interpretation of the discourse approach that Habermas has explicitly defended in recent years.

Keywords:   discourse theory, social norms, correctness, enforcement, political community, legal theory, antirealist, Habermas

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