Schwerpunktbeitrag: Toward a New Approach in Discourse Theory of Justice and Law[1]

09. Foto Ekardt

Felix Ekardt


This article describes a new approach toward discourse ethics, defined as a discourse theory of justice or the right law respectively. It is significantly different from the classic discourse theory of Karl-Otto Apel and Jürgen Habermas, to some extent also from Robert Alexy. Those differences concern (1) many aspects of demonstrating why objective or universal norms can exist at all and (2) the content of those norms, particularly of the principle of freedom including its intergenerational and global, i.e., sustainability oriented, extension. Altogether, it still seems true that discourse theory is the most promising approach toward a modern universalism and a modern law of reason. In any case, the controversy about theories of discourse rationality should bring about much clearer arguments than the conventional debate about “positivism or law of nature” (the very notion seems misleading), in favor of and against universalism. At the same time, the article criticizes some aspects of economic theories of efficiency – to be distinguished from effectiveness – which actually do not concern “another aspect besides justice” but rather describe a (wrong) ethics.

1. Terminology: Justice, Action, Normative Reason, Instrumental Reason

Under what circumstances can we call social life “just”, or the law “right”? This is the ultimate question of all thinking about politics, morals, and the law. Conceptually, the term justice is concerned with the normative validity of a society’s basic order. Thus, a normative theory of justice (or morality) answers the question: How shall humans behave or what shall the founding order look like? This must strictly be distinguished from the question of how humans factually do act and what the factual reasons for this action are (and what humans factually “deem right”) – this is a question of the descriptive action theory (or anthropology or the doctrine of the idea of man[2] – or theory of society). A link between the theory of justice and the action theory is the equally empirical governance theory or control theory, i.e., the doctrine of the choice of means to effectively and factually enforce previously defined normative aims (e.g., the right to freedom from impairments to life and health), possibly after a normative balancing with other conflicting objectives (e.g., economic freedom). Such means or instruments could be for instance taxes, voluntary commitments, regulatory law, or competition. Weiterlesen