I Legal procedure and moral-practical discourse 1 Habermas versus Weber on legitimacy and the moral dimension of law In any legal theory the relation between law and morality is problematic. Reflecting on this link is relevant to the issue of the legitimacy of law. The ’classical’ and still predominant view on the legitimacy of law is that of Weber (1956). His concept of formal rationality of law presupposes a strict separation of law from morality. According to Weber, law derives its legitimacy not from morality, but from its formal properties. These properties are:
1. a system of legal norms, developed by professional jurists, that bring order to existing social norms;
2. 2 a legislature which creates laws that are generally valid and are …show more content…
The legitimacy of law is, as he puts it, dependent not on morality, but on legality.’ Habermas (1988) criticizes Weber’s concept of formal rationality of law. According to Habermas, law and morality are unbreakably linked. The formal properties of law, as described by Weber, cannot be seen as rational in a morally neutral sense and, therefore, cannot guarantee the legitimacy of law. The legality of governmental power exercised by means of positive law has no legitimate force of its own. What is legal is not necessarily legitimate. Considering the formal properties of law, Habermas argues that they have an implicit moral dimension from which law derives its legitimacy. First, the systematization of law by professional jurists contributes to legitimacy only when it takes moral justifications into account. In positive law, social norms have lost their validity based on custom. Because of this, legal norms now need to be founded on moral principles. Second, general and abstract laws are also dependent on moral principles for their …show more content…
Under these conditions of an ideal speech-situation, participants will - in principle - be able to reach a rational consensus on moral issues.9 In theory, at least, the outcome of such a discourse will be morally right and generally acceptable. This is, in short, the basic idea of discourse ethics according to which only those moral norms can claim to be universally valid that are agreed upon by all persons involved as participants in a practical discourse. The integration of a practical discourse into legal discourse will, therefore, contribute to the moral legitimacy of
1. a system of legal norms, developed by professional jurists, that bring order to existing social norms;
2. 2 a legislature which creates laws that are generally valid and are …show more content…
The legitimacy of law is, as he puts it, dependent not on morality, but on legality.’ Habermas (1988) criticizes Weber’s concept of formal rationality of law. According to Habermas, law and morality are unbreakably linked. The formal properties of law, as described by Weber, cannot be seen as rational in a morally neutral sense and, therefore, cannot guarantee the legitimacy of law. The legality of governmental power exercised by means of positive law has no legitimate force of its own. What is legal is not necessarily legitimate. Considering the formal properties of law, Habermas argues that they have an implicit moral dimension from which law derives its legitimacy. First, the systematization of law by professional jurists contributes to legitimacy only when it takes moral justifications into account. In positive law, social norms have lost their validity based on custom. Because of this, legal norms now need to be founded on moral principles. Second, general and abstract laws are also dependent on moral principles for their …show more content…
Under these conditions of an ideal speech-situation, participants will - in principle - be able to reach a rational consensus on moral issues.9 In theory, at least, the outcome of such a discourse will be morally right and generally acceptable. This is, in short, the basic idea of discourse ethics according to which only those moral norms can claim to be universally valid that are agreed upon by all persons involved as participants in a practical discourse. The integration of a practical discourse into legal discourse will, therefore, contribute to the moral legitimacy of