Habermas' Theory Of Legal Certainty

The conflict between factuality and validity in language causes the uncertainty of language. Language is the medium of social interaction. Laws became the most important means of social adjustment after life-world and Ancient authority. And the conflict between factuality and validity in language works in the law through the process of language interaction finally. Habermas thought that the conflict between factuality and validity in law leaded to uncertainty of law.The school of Natural Law believed that the certainty of law came from the authority of Natural Law. But the Analysis school insisted that the Self-consistency of law leaded to certainty of law. So they tried their best to make sure the law to be a logical and specific system. Legal Realism denied the certainty of law in their theory. In Hart’s opinion the Minimum Natural Law was the essential part of law. The Minimum Natural Law and the rule of recognition can coordinate the certainty and rationality of law. Dworkin believed that the integrity of law could consociate the certainty and rationality of law by the judicial constructive interpretation.Habermas thought that the theories listed could never solve the problem about uncertainty of law, because they had not found the key to this problem--The conflict between factuality and validity in the law. In Habermas’s theoretical system, only Legal Discourse which depends on the Communicative rationality can finally solve the problem. Communicative rationality expressed as the dialogue on an equal footing and caused No-Mandatory Agreement at last. It endowed behavior with rationality. As the special form of Communicative rationality in law, the Legal Discourse had a same effect on law. Legal Discourse consociate the certainty and rationality of law. When it comes to Legal Discourse, the problem about uncertainty of law is done. But how Legal Discourse goes on? Habermas said that we should construct an ideal speech situation. Ideal speech situation means a legal procedure in which Legal Discourse can go on smoothly and come out with No-Mandatory Agreement which is the source of certainty and rationality of law. In Habermas’s theory the legal certainty is no longer the old one; it is a new one that can resolve the conflict between factuality and validity in the law.