A CRITICAL STUDY OF DISCOURSE THEORY OF LAW OF HABERMAS

Abstract

This dissertation entitled “A critical study of discourse theory of law of Habermas” has three objectives: 1) to study the concept of discourse theory of law of Habermas, 2) to study the philosophy of law influencing upon the theoretical discourse of law Habermas, and  3) to critically analyze the theory discourse of law of Habermas. This is a documentary research.

            In the study of first objective, it was found that the discourse theory of law of Habermas clearly reflected upon the following two concepts and legal perspectives: 1) the concept of law legitimacy; this is based on the effectiveness of legalization and 2) the enforcement of law according to people’s rights and liberty. According to Habermas's viewpoint, both are the foundations of all laws.

            In the study of second objective, it clearly showed that the following concepts influencing upon Habermas's discourse theory of law: 1) natural law; this is assigned to uphold the existing ethical principle of law, 2) Kantian concept of law; this needs separation of moral good and legal good. In this matter, Habermas holds the view that the moral good possesses more valuable than legal good, and 3) Marxist concept of law; this concept is held that the fight within social community is necessary but Habermas is of the view that the benefit of each class should be protected.

          In the third objective, it was found that according to research findings, the politics and law cannot take any effective unless morality and legitimacy of law are conditionally upheld. Viewed from this angle, the relationship of law and morality is needed; if they are separated then society would become chaotic due to violation initiated by each one. Therefore, the political theory and theory of law should be based upon ethical theories.