Legal Validity Acceptance of Law Legitimacy Some Critical Comments and Constructive Proposals法律效力对法律合法性的接受程度若干批判性评论与建设性建议.pdfVIP

Ratio Juris. Vol. 12 No. 4 December 1999 (336–53) Legal Validity, Acceptance of Law, Legitimacy. Some Critical Comments and Constructive Proposals OTA WEINBERGER Abstract. In this paper the author first presents a critical account of some basic views of Habermas’ Discourse Philosophy. He points out some difficulties inherent in notions such as valid justification in argumentation theory, in the notion of ideal form of discourses, and in consensus theory of truth. Secondly, he focuses on Habermas’ conceptions of validity, acceptance and legitimacy of law from the perspective of neo- institutionalism. In particular, (i) the author argues that Habermas’ definition of legal validity is unclear and unrealistic; (ii) the author stresses the distinction between accept- ance and acceptability; (iii) Habermas presupposes harmony between sovereignty and human rights postulates, but the present author takes into account the possibility of conflicts between autonomous popular decisions and human rights which must be resolved by methods of discursive democracy; (iv) criteria for acceptance of law cannot be fixed by a stipulative definition, but are in social discussion; (v) legitimacy is not an objective feature of valid law and presupposes an evaluation based on our political convictions.* The Purpose and Structure of my Contribution When reading Habermas I experience mixed feelings: respect for his uni- versal erudition and sympathy for his sound political views; but I feel also an essential opposition concerning his philosophical presuppositions and the methods of his approaches. My paper comprises basic questions of jurisprudence and legal politics. I shall not concentrate on an extended exegesis of Habermas’ views on the notions of validity, acceptance and legitimacy of law, but I shall try to find sound and methodologically working conceptions