Gegenbegriffe, Dichotomien und Alternativen in der Jurisprudenz

Abstract

Postmodernism has discredited thinking and arguing with dichotomies. Especially since the great dichotomies of object and subject, body and mind, being and ought are obsolete to it. Against this background, a critique of law and jurisprudence grew that presents itself as a “debunking” of false dichotomies. In jurisprudence, however, work with counter-concepts (antonyms) is ubiquitous and indispensable. Antonyms are heuristically and didactically valuable. They help jurisprudence to develop its specific capacity for distinction and they keep the law capable of decision-making. From a social-psychological point of view, dichotomies develop a considerable momentum of their own. However, this is not already rooted in the operation of concept formation as such, but follows from the attractiveness of dualisms for the cognitive system. Initial asymmetries, however formed, are reinforced or even generalised through socio-practice. Such an asymmetry is still associated with the opposition of man and woman. More important today, however, is the opposition of normal and abnormal with regard to disabled and queer people. In both cases, the opposition marks a minority. In both cases, social science with constructivist arguments offers a solution that explains the discriminatory marking as a contingent social attribution and wants to eliminate it as such. But the attempt to defuse the “dilemma of difference” by interpreting difference as such away remains a stopgap solution. The empirical phenomenon of normality demands the renunciation of dichotomies, but not of simple antonyms.