Legitimate Expectations in the Realm of Law – Mutual Recognition, Justice as a Virtue and the Legitimacy of Expectations

Abstract

Abstract This essay argues that one structural feature of the law is its working as an expectations machinery that generates and protects legitimate expectations at the same time. The vindication of expectations becomes apparent when we focus on the ex post-dimension of legal norms. In their ex post-dimension, legal norms vindicate legitimate expectations, in their ex ante-dimension, they generate them. This paper identifies three categories of expectations: Mere hopes, legitimate expectations and vindicated (legitimate) expectations. In the practice of legal discourse, this categorisation is of crucial importance and decisive for our legal rights. This will be illustrated with examples concerning contract and property. The essay further shows that the classification of expectations faces an uncertainty problem. Building on Brandom, the essay argues that the rationality of the law’s classification of expectations can be ensured through the practice of legal discourse. Brandom’s theory of mutual recognition as a normative social structure must be supplemented by justice as a virtue (JAV), however. It will be argued that JAV strengthens the mutual recognition of the players of the law in their permanent reconstruction of legal content. JAV must be included in legal discourse to ensure the rationality of the law’s quest for the classification of expectations.