Ratio Juris. Vol. 12 No.

4 December 1999 (37484)

The Special Case Thesis

ROBERT ALEXY
Abstract. The author outlines his thesis that legal discourse is a special case of general practical discourse (Sonderfallthese) and develops it as an attempt to cover both the authoritative, institutional, or real and free, discursive, or ideal dimension of legal reasoning. On this basis, he examines the objections raised by Habermas (1996) to the special case thesis. First, he discusses the reduction of general practical discourse to moral discourses (genus proximum problem) holding that the former is a combination of moral, ethical, and pragmatic arguments within the priority of just; second, he examines the objection that general practical arguments change their character or nature when employed in legal contexts (subset and specification problem) and the related problems concerning legal validity and unjust law. He concludes proposing a procedural (opposite to a coherential) integration of general practical arguments in the legal context.*

I. The Authoritative and Discursive Character of Legal Reasoning The discourse theory of law comprises a set of themes ranging from the problem of practical knowledge via the system of rights to the theory of democracy. Among these subjects the theory of legal argumentation is closest to legal practice. This enables it to become a kind of touchstone for the soundness of the overarching idea of discursive rationality in law. The theory of legal argumentation can play this role because it is intrinsically connected with all elements of the legal system. Two examples may serve to illustrate this. The first concerns the relationship between the democratic process and legal argumentation. The democratic process, resulting in parliamentary decisions, provides for the most important starting points of legal argumentation in a democratic constitutional state: statutes. The second example is basic rights. It is not enough that a constitutional convention resolves on a catalogue of basic rights. They have to be interpreted and implemented. In part, this can be done by the legislature. But if the legislator itself is to be bound by the basic rights, there must be some kind of argument about the question whether a legislative act or a legislative omission violates basic
* Abstract by Giorgio Bongiovanni.
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rights or not. Arguments interpreting basic rights of a concrete constitution are legal arguments. For that reason, there is a necessary relation between basic rights binding all powers of the state and legal argumentation. The two examples show that legal argumentation has a twofold face. It participates, on the one hand, deeply in the authoritative, institutional, or real character of law. This can be seen from the role of authoritative reasons in legal arguments and the institutional setting of legal reasoning which leads, in the last instance, not only to suggestions and proposals but to definitive decisions of courts, enforced, if necessary, by power. On the other hand, legal reasoning remains deeply connected with what can be called the free, discursive, or ideal side of law. The necessity of legal reasoning which is more than mere subsumption and, by this, more than mere execution of the authoritative, emerges from the open texture of the authoritative material often described (Hart 1994, 126ff.). Reasoning in gaps of the authoritative material can, by definition, not be determined solely by what is authoritative. It must be free to a certain degree. With respect to precedents, the freedom is even greater. In spite of their more or less authoritative character, everybody is free to criticize judicial decisions with legal arguments. Such criticism can lead to a reversal of the sentence by a higher court or to an overruling by a court deciding a similiar case later. An adequate theory of legal argumentation must cover the authoritative, institutional, or real side of legal reasoning as well as its free, discursive, or ideal dimension. The special case thesis (Sonderfallthese) being the subject of my considerations is an attempt to achieve just this. II. The Special Case Thesis The special case thesis states that legal discourse is a special case of general practical discourse (Alexy 1989a, 212ff.). It is based on three reasons. The first is that, in the end, legal discussion, like general practical argumentation, is concerned with what is obligatory, prohibited, or permitted, hence with practical questions. The second reason is that a claim to correctness is raised in legal discourse as well as in general practical discourse. Both kinds of argumentation are, therefore, discourses. The third reason states that legal argumentation is a matter of a special case because the claim to correctness in legal discourse is distinct from that in general practical discourse. It is not concerned with what is absolutely correct but with what is correct within the framework and on the basis of a validly prevailing legal order. What is correct in a legal system essentially depends on what is authoritatively or institutionally fixed and what fits into it. It must not contradict the authoritative and cohere with the whole. If one wants to express this in a short formula, it can be said that legal argumentation is bound to statutes and to precedents and has to observe the system of law elaborated by legal dogmatics.
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376 III. Objections

Robert Alexy

Many objections have been raised against the special case thesis. I will not try to deal with all of them at this point. Some have already been discussed on other occasions (cf. Alexy 1993, 157ff.; 1996a, 426ff.). Here, I will concentrate on the objections considered or raised by Jrgen Habermas in his book Faktizitt und Geltung (1992), published in English as Between Facts and Norms (1996).

1. Courtroom Proceedings The special case thesis can be related to courtroom proceedings as well as to legal argumentation as such, that is legal argumentation as it takes place, for instance, in books, articles, or scholarly discussion. The first is institutionalized, the second is not. The latter has the open and infinite character typical of scientific discourse. This makes it quite different from courtroom proceedings defined by procedural rules governing the forensic action of the parties as well as the activities of the court itself. Some authors have argued that those procedural constraints exclude the understanding of courtroom proceedings in terms of discourse theory (Neumann 1986, 84ff.; Kaufmann 1989, 20ff.). They can, indeed, hint at several features of such proceedings that, at first glance, seem to be incompatible with any connection between discourses and courtroom proceedings. The asymmetrical distribution of roles in criminal proceedings, time constraints, and the actual motivations of the participants who often if not usually are concerned to achieve a judgment which is to their advantage rather than a correct or just outcome form three examples. All of these observations are correct, but they miss the decisive point. The decisive point is that the parties put forward arguments which claim to be correct, even if they are subjectively only following their own interests (Alexy 1989a, 219). They at least pretend that their arguments would be accepted by all under ideal conditions. By this, they contribute, as Habermas says to a discourse that from the judges perspective facilitates the search for an impartial judgment (Habermas 1996, 231). This argument has recently been attacked by Ulfrid Neumann. According to Neumann, it is not enough to conceive the arguments of the parties merely as contributions which help the judge to find an impartial judgment. This deprives the parties of the status of participants in discourses and reduces them to sources of information. A procedure in which only one participant, the judge, decides and gives the final argument and all the others only provide information had no discursive but a monological structure. This, according to Neumann, contradicts the basic ideas of the discourse theory of law (Neumann 1996, 417f.).
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This objection underestimates the complexity necessary in order to institutionalize discursive rationality. Even if one agrees with Neumann that the accused should have a right to discuss all relevant legal questions of his case with the judge (Neumann 1996, 426), one cannot deny that it is the court which has to decide and argue in the last instance. If the court wants to decide correctly, it has to hear all the arguments, which is nothing other than the old audiatur et altera pars, and if the correctness of its decision shall be subjected to control, the court must justify its judgement before the participants and the general and the legal public. By this, it is connected with discourses before higher courts, in the legal profession, and among the public. All this is, taken together, enough to interpret courtroom proceedings in terms of discourse theory.

2. Moral, General Practical, and Legal Discourse a) Moral Discourse and Legal Argumentation Whether the special case thesis is correct or not essentially depends on what one means by general practical discourse. This problem could be called the genus proximum problem. If one interprets the expression general practical discourse as denoting moral discourses as defined by Habermas, the special case thesis can easily be shown to be wrong. Moral discourses in the sense of Habermas concern universalization and only universalization (Habermas 1996, 153). A moral question is at stake if someone asks which norms
can be justified if and only if equal consideration is given to the interests of all those who are possibly involved [] With moral questions, humanity or a presupposed republic of world citizens constitutes the reference system for justifying regulations that lie in the equal interest of all. (Habermas 1996, 108)

It is quite obvious that legal argumentation is open not only to moral reasons defined in this sense, but also to ethical-political and pragmatic reasons as Habermas defines them (Habermas 1996, 154f., 230, 283). The first concern our collective self-understanding embodied in our traditions and strong evaluations (Habermas 1996, 108), the second, the suitability of means for realizing certain goals as well as the balancing of interests and compromises (Habermas 1996, 108, 154, 159). It is not only a matter of fact but also systematically necessary that ethical as well as pragmatic reasons play an indispensable role in legal reasoning. One of the most important starting points of legal reasoning are statutes resulting from the democratic process. In democratic decision-making all three kinds of reasons are legitimate reasons (Habermas 1996, 108). If legal argumentation is to connect with what has been decided in the democratic process it has to consider all three kinds of reasons presupposed by or connected with its results.
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b) The Concept of the General Practical Discourse Therefore, Habermas thesis that legal discourses should not be conceived as a subset of moral argumentation as he understands it (Habermas 1996, 230) is evidently true. But this does not defeat the special case thesis. According to it, the genus proximum of legal discourse is not moral discourse as defined by Habermas but general practical discourse. A general practical discourse is not the same as a moral discourse in the sense of Habermas. It is a discourse in which moral, ethical, and pragmatic questions and reasons are connected (Alexy 1996b, 1033). General practical discourses differ from legal discourses in being not dependent on institutional reasons. For legal argumentation institutional reasons like statute and precedent are constitutive; for general practical argumentation they are not. The formation of a concept of practical discourse which comprises moral, ethical, and pragmatic arguments is both sensible and necessary. It is sensible because often a purely moral argumentation, that is an argumentation which only looks at what is equally good for all human beings (Habermas 1996, 153) is not enough to give an answer to a practical question, that is to a question concerning what should be done or omitted. In many cases, ethical and pragmatic arguments must supplement moral arguments in order to achieve an answer to a practical question. The pragmatic dimension comprises, according to Habermas, the question of which means are suitable for realizing certain goals and it leads, if conflicts between goals occur, to the problem of weighing (Habermas 1996, 159). All practical problems of more than a minimal complexity demand for consideration of the relation between means and ends or goals and between goals. Expediency, therefore, is a necessary element of rational practical discourse (Alexy 1989a, 197ff.). Again, often justice as being equally good for all and expediency, even if taken together, are not enough to decide a practical question. Conflicts between goals which cannot be solved by the equally-good-for-all-criterion alone are examples. We then have to go into the ethical dimension in order to perform a rational weighing of the conflicting goals in the light of accepted value preferences (Habermas 1996, 159). The general practical discourse is, in short, a discourse which combines the standpoints of expediency or utility, of value or identity, and of morality or justice. This combination, however, is not a mere addition. There exist both, a priority order and a relation of permeation between the suitable, the good, and the just. c) Priority Relations between the Elements of General Practical Discourse The priority of the good over the suitable results from the fact that even the highest degree of suitability of a means for an end does not count anything if the end is of no value at all. Suitability is attractive only if the ends or goals have some attraction. The priority of the just over the good is a much more difficult matter. The good as a subject of ethical discourses expresses
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non-universal individual and collective values. Something can be good or of value for some people without being good or of value for all people. The just represents the universal moral point of view. Its priority can be substantiated only by showing that the moral point of view is necessary for all. This can be done by reconstructing necessary presuppositions implicit in elementary speech acts like asserting, asking, and arguing, inevitable or indispensable for all. It shall be assumed here that such a substantiation of the universal validity of the moral point of view is possible (cf. Alexy 1996c, 213ff.). Should this assumption be true, universal validity would imply priority of the just over the good. d) General Practical Discourse and the Unity of Practical Reasoning Priority is a simple matter when what is ordered is clearly or sharply separated one from the other. This, however, is not the case with the just and the good. The just is permeated by the good. This becomes clear if one does not reduce the domain of the just to elementary human rights like the right to life, the right not to be subjected to torture, and the right not to be held in slavery. These rights seem to belong to what is equally good for all, independent from particular conceptions of the good. But if one conceives justice as comprising all questions of distribution and retribution, then problems like that of the welfare state and that of punishment have to be treated as questions of justice. The answers to these questions depend on many reasons. Among them arguments about how one should understand oneself and the community in which one lives play an essential role. By this, the just depends on the good. Changing ones self-understanding or ones interpretation of the tradition in which one has been bred (cf. Alexy 1989a, 204f.) can change ones conception of justice. All this shows that general practical discourse is not a simple mix or combination but a systematically necessary connection expressing the substantial unity of practical reason. This is the basis of the special case thesis.

3. The General and the Specific Even if one agrees that the special case thesis refers not to moral but to general practical discourse and that, in principle, general practical discourse might be a genuine genus proximum because it is more than a mere mix or combination of pragmatic, ethical, and moral elements, one can continue to insist that the special case thesis is wrong. One simply has to say that general practical arguments essentially change their character or nature when employed in legal contexts. They cease to be general arguments and gain something specifically legal. They areto use an expression of Habermas, not translated literally in the English edition (Habermas 1996, 205) impregnated by law (Habermas 1992, 252).
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a) The Different Mode of Validity and the Change in Meaning Several statements of Habermas point in this direction. According to Habermas, the migration of moral contents into law does not mean that the moral contents continue to be simply moral contents. They are furnished with a different mode of validity (Habermas 1996, 206). This is quite plausible as far as the dimension of validity is concerned. So, for instance, a moral right attains legal validity in addition to moral validity by being transformed into a basic right as part of a constitution. But Habermas refers not only to the dimension of validity. He says that moral contents, once translated into the legal code, undergo a change in meaning that is specific to the legal form (Habermas 1996, 204). It seems that Habermas wants to state that the transformation or employment of moral contents into or in law affects not only the dimension of validity but also the dimension of substance. To this corresponds the thesis that legal discourses are embedded in the legal system from the outset:
Legal discourses do not represent special cases of moral argumentation that, because of their link to existing law, are restricted to a subset of moral commands or permissions. Rather, they refer from the outset to democratically enacted law and [] not only refer to legal norms but [] are themselves embedded in the legal system. (Habermas 1996, 234)

The question is whether moral arguments as well as the other arguments of general practical discourse do indeed change their character or nature so essentially when employed in legal discourse that the special case thesis breaks down. b) The Subset Assumption Habermas ascribes two assumptions to the special case thesis which are, indeed, problematic but, fortunately, not necessarily connected with it. The first can be called the subset assumption, the second the specification assumption. According to the subset assumption, the special case thesis says that legal discourses are moral discourses that, because of their link to existing law, are restricted to a subset of moral commands or permissions (Habermas 1996, 234). This corresponds to the view that legal argumentation can take one part of the way to a point at which specifically legal arguments are no longer available. At exactly that point general practical argumentation must intervene. Both versions of the subset assumption are incompatible with the insight that in rational legal argumentation specifically legal arguments and general practical arguments are combined at all levels and applied jointly (Alexy 1989a, 284ff., 291f.). One might call this the integration assumption (Alexy 1989a, 20). The special case thesis to be defended here is the special case thesis in the interpretation not of the subset but of the integration
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assumption. The differentia specifica of the legal discourse is not mere restriction by validly prevailing law but integration into the legal system. c) The Specification Assumption The second problematic assumption Habermas ascribes to the special case thesis is the specification assumption. According to this assumption, the special case thesis is required to show that the special rules and forms of legal argumentation merely specify the universal requirements for moralpractical discourses in view of the connection with existing law (Habermas 1996, 231). It will never be possible to fulfil this requirement. But this causes no harm to the special case thesis. There are some rules and forms of legal discourse which indeed correspond to those of general practical discourse (Alexy 1989a, 289ff.) but it is not only innocuous that not all of them do so, but necessary. Legal discourse is essentially defined by employing authoritative reasons. Linguistic, genetic, and systematic arguments help to build up the authority-bound character of legal argumentation which is indispensable for the special case thesis. For that reason it is not true that all specific rules and forms of the legal discourse have to be special cases of the rules and forms of the general practical discourse in order to make the legal discourse a special case of the general practical discourse. Quite the opposite is correct. d) Unjust and Unreasonable Law One could admit all this but insist that a special case thesis which avoids the subset and the specification assumption is not any longer a special case thesis. The specification assumption has been shown to be incompatible with the authoritative character of legal reasoning demanding rules and forms of legal argumentation which are not special cases of rules and forms of general practical discourse. It is just this authoritative character of legal reasoning which has led several authors to think that legal discourse is not a special case of general practical discourse but something qualitatively different or an aliud (Neumann 1986, 90; Braun 1988, 259). As a kind of touchstone an unjust or unreasonable statute is quoted which allows only for an unjust or unreasonable decision (Neumann 1986, 90). Habermas argues that in such cases the assumption of harmony between law and morality which he thinks to be implicit in the special case thesis has the unpleasant consequence not only of relativizing the rightness of a legal decision but of calling it into question as such. The reason for this is that validity claims are binarily coded and do not admit of degrees of validity (Habermas 1996, 232). In order to reply to this objection one has to make two distinctions. The first is the distinction between two aspects which are combined in the claim to correctness necessarily connected with judicial decisions (Alexy 1989b,
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178ff.). The first aspect is the claim that the decision is correctly substantiated if one presupposes the established law, whatever it may be. The second aspect is the claim that the established law on which the decision is based is just and reasonable. Both aspects are contained in the claim to correctness raised in judicial decisions. Judicial decisions not only claim to be correct within the framework of the validly established legal order but also to be correct as legal decisions. A judicial decision which correctly applies an unjust or unreasonable statute does not fulfil the claim to correctness raised by it in all respects. If the unjust or unreasonable statute is legally valid, the decision based on it is legally valid, too, and in many, if not in most cases, the principles of legal certainty, of separation of powers, and of democracy demand from the judge to follow even unjust and unreasonable statutes when there is no room for interpretation so that his decision is correct under the given circumstances, unhappy as they are. But nevertheless the decision is not a legally perfect one. It is soaked with the faultiness of the statute (Alexy 1996a, 433). The second distinction is that between raising a claim and its compliance. The special case thesis does not assume that there actually and always exists a harmony between law and morality (Habermas 1996, 232). It only says that such harmony is always implicit in laws claims (Pavlakos 1998, 148, 151f.). Such claims have only weak but far-reaching consequences. They put everything into a different light. Unjust judicial decisions cannot be called merely morally questionable but nevertheless legally perfect any longer. They are also legally defective. Hence the law is not only open to moral criticism from the outside. The critical dimension is replaced right into law itself. Habermas thesis that the rightness or correctness of legal decisions is not only relativized but also called into question by unjust or unreasonable legislation takes a quite different meaning depending on whether it refers to claims or their compliance. If one refers it to claims, nothing is relativized. Mere noncompliance does not call claims into question. If one refers it to compliance, the rightness or correctness is indeed relativized. But this, too, calls nothing into question because the special case thesis needs only claims and not their compliance. e) The Integration of Arguments and the Institutionalization of Practical Reason The question remains whether the substitution of the subset assumption by the integration assumption does not deprive the special case thesis of its basis. One could argue that the integration of general practical arguments in the context of legal arguments changes their character or nature. If this is true, the integration of general practical arguments in a legal context will indeed lead to something like a different mode of validity (Habermas 1996, 206), a change in meaning that is specific to the legal form (Habermas 1996, 204), or a more complex validity dimension (Habermas 1996, 233). If
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general practical arguments change their character or nature by being integrated in legal contexts, general practical discourse would not be the genus proximum of legal discourse any longer and the special case thesis would break down. The integration of general practical arguments in the legal context can be conceived in two ways. The first is coherentist; the second, procedural. The most radical coherentist view is that of legal holism. According to it, all premises are already part of or hidden in the legal system and only need to be discovered. This idea has always been fascinating for jurists due to its promise of total autonomy of law. It would provide for a perfect solution of the legitimation problem of judicial decision-making. In a democracy, for instance, it would make it possible to trace back each legal decision completely to what has already been enacted in the process of democratic legislation. Habermas dictum that legal discourses refer from the outset to democratically enacted law (Habermas 1996, 234) would be more than fulfilled. However, the idea of legal holism in the form of perfect or ideal coherence is not realizable, and, Habermas is quite clear about it: the orientation toward such a demanding ideal will, as a rule, overtax even professional adjudication (Habermas 1996, 220). Every formula suggested for the precision of that idea proves to be open and dependent on being filled with values and norms that are not already included in what already has been established as valid law. Whether one takes the Hermeneutic insight of the circular structure between preunderstanding and text, part and whole, and norm and facts of a case, or the demand that rational application of norms has to take all facts of the case and all the relevant norms into consideration (Gnther 1993, 151), or the worldly-wise maxim to search for similiarites, one always has something most reasonable but also something most incomplete and therefore in need of supplementation beforehand (Dwars 1992, 57f.; Alexy 1993, 160ff.; Alexy 1995, 75ff.). Just as norms cannot apply themselves, a legal system as such cannot produce coherence. To achieve this, persons and procedures are necessary for feeding in new contents. This leads to the second way of integrating general practical arguments in the legal context: the procedural one. It is a general and deep problem of argumentation theory whether an argument changes its character or nature in changing contexts. One can assume that the solution to this problem depends on what is meant by a change in the character or nature of an argument. Here, the basis of an understanding of this concept shall again be the idea of the unity of practical reason. According to this idea, the legal system of the democratic constitutional state is an attempt to institutionalize practical reason. Practical reason justifies the existence of the legal system as such and its basic structures, it has to be vivid in the procedures of democratic opinion- and will-formation if their results are to be legitimate, and it must be employed in legal argumentation in order to fulfil the claim
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to correctness that is raised in it. General practical arguments have to float through all institutions if the roots of these institutions in practical reason shall not be cut off. General practical arguments are non-institutional arguments. Non-institutional arguments floating through institutions may be embedded, integrated, and specified as much as one wants, as long as they remain arguments they retain what is essential for this kind of argument: their free and non-institutional character. This is not the only but, perhaps, the ultimate reason for the special case thesis. Christian Albrechts University Faculty of Law Olshausenstrae 40 D-24118 Kiel Germany References
Alexy, Robert. 1989a. A Theory of Legal Argumentation. Trans. R. Adler and N. MacCormick. Oxford: Clarendon. . 1989b. On Necessary Relations between Law and Morality. Ratio Juris 2: 16783. . 1993. Justification and Application of Norms. Ratio Juris 6: 15770. . 1995. Juristische Interpretation. In R. Alexy, Recht, Vernunft, Diskurs, 7192. Frankfurt on Main: Suhrkamp. . 1996a. Theorie der juristischen Argumentation. 3rd ed. Frankfurt on Main: Suhrkamp. . 1996b. Jrgen Habermass Theory of Legal Discourse. Cardozo Law Review 17: 102734. . 1996c. Discourse Theory and Human Rights. Ratio Juris 9: 20935. Braun, Carl. 1988. Diskurstheoretische Normenbegrndung in der Rechtswissenschaft. Rechtstheorie 19: 23861. Dwars, Ingrid. 1992. Application Discourse and Special Case-Thesis. Ratio Juris 5: 6778. Gnther, Klaus. 1993. Critical Remarks on Robert Alexys Special-Case Thesis. Ratio Juris 6: 14356. Habermas, Jrgen. 1992. Faktizitt und Geltung. Frankfurt on Main: Suhrkamp. . 1996. Between Facts and Norms. Trans. W. Rehg. Cambridge: Polity. Hart, H. L. A. 1994. The Concept of Law. 2nd ed. Oxford: Clarendon. Kaufmann, Arthur. 1989. Lt sich die Hauptverhandlung in Strafsachen als rationaler Diskurs auffassen? In Dogmatik und Praxis des Strafverfahrens. Ed. H. Jung and H. Mller-Dietz, 1524. Cologne: Heymanns. Neumann, Ulfrid. 1986. Juristische Argumentationslehre. Darmstadt: Wissenschaftliche Buchgesellschaft. . 1996. Zur Interpretation des forensischen Diskurses in der Rechtsphilosophie von Jrgen Habermas. Rechtstheorie 27: 41526. Pavlakos, Georgios. 1998. The Special Case Thesis. An Assessment of R. Alexys Discursive Theory of Law. Ratio Juris 11: 12654.

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