Law as a Medium of Democratic Discourse
Volume 3 Issue 3 (2010)
The article proposes to argue a philosophical foundation of legal legitimacy descriptively basing it from Jürgen Habermas’ idea of the discourse theory. It addresses two closely connected questions: firstly,how is legitimacy of law possible? Legitimacy of law is possible through the democratic medium. The second section briefly charts the differing viewpoints of Hobbes, Locke, Rousseau, and Kant on the lines of reconciling individual autonomy and collective autonomy. Further, similarly, justifications of legal legitimacy receive an internal reference
of the legal system through its generation of internal norms. Accordingly, the third section of the article critiques Weber and Hart’s ideas of legitimacy on the ground that the internal point of view of law excludes will formation suited for plural and democratic societies. Secondly, it prescribes how legitimacy takes shape? It argues that legitimacy derives from public contestation using the discursive model of democracy. It reasons and defends that law is a product of public conversation which is reflexive and self-correcting. The article argues that the revolutionary potential of law is realized in this emancipatory reconstruction where people are rights bearers. Therefore, law is a system of rights presupposing people as free and equal deliberators.