The Legal Discourse Theory

This dissertation mainly studies Habermas's discourse theory of law. For that, the author makes efforts from three aspects. The first is to bring to light the relation between Habermas's discourse theory of law and his famous communicative action theory and discourse ethics. The second is to lucubrate the intrinsic logic of Habermas's discourse theory of law by unscrambling his grand jurisdiction works "Between facts and norms".And the third is to explore critically the rational potentials and practical value of the legal thoughts to enrich our country's relative legal theory research-On the base, the dissertation includes two parts in the principal part. The first part, from Chapterl to Chapter 3, mainly probes into the theoretical base of Habermas's discourse theory of law. Chapter 1 reviews the fundamental status of communicative reason in Habermas's discourse theory of law. Chapter 2 analyzes the significance that the theories of "lifeworld" and "systems" have in Habermas's discourse theory of law. In Habermas's theory, he is to use the concept "lifeworld" to make a farther supplement to his communicative action theory, and use the concept "systems" to make a farther supplement to the "lifeworld" theory. And his "discourse" is growing up among the anfractuous relations. Chapter 3 emphatically probes into the relations between discourse theory of law and his discourse ethics, especially makes an original analysis to the ethical structure of discourse theory of law.The second part, from chapter 4 to chapter 8, mainly researches the essential content of Habermas's discourse theory of law. Chapter 4 emphatically expatiates Habermas's methods to reconstruct modem law, namely, reveals the characteristics of Habermas's methodology of law. Chapter 5 and chapter 6 emphatically probe into Habermas's projects to "system of rights" and "principles of the Constitutional State", which concerns the hard core of Habermas's reconstruction to the rationality of modern law, namely, is the principle part of discourse theory. Chapter 7 and chapter 8 wholly enter into the use of the principle of discourse of law, which is, according to Habermas, the problem of "testing" on discourse theory. The former chapter researches how Habermas uses discourse to solve the problem of judicial rationality. The latter chapter analyses the proceduralist amount of which Habermas uses the discourse theory to solve the problem of validity of Constitutional justice.