Toward a New Approach in Discourse Theory of Justice and Law

Abstract

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.