Can Rights, Democracy, and Justice Be Reconciled Through Discourse Theory? Reflections on Habermas’s Proceduralist Paradigm of Law

There are different images or paradigms of law which correspond to different conceptions of justice and different sources of legitimacy. Moreover, in the context of complex, pluralistic contemporary societies, the relationship between law, justice, and legitimacy has become acutely problematic as competing conceptions of the good cast legal relationships as relationships among strangers, and as justice according to law seems irretrievably split from justice against or beyond law. In the face of these difficulties, one could simply abandon the quest for justice beyond law and settle for a combination of democracy and legal positivism which would reduce political legitimacy to majority rule and confine the role of law to the stabilization of expectations among legal subjects. However, if fearful of tyrannical majorities and dissatisfied with the prospect of predictable but unjust laws, one could opt for justice beyond law and embrace human rights as a shield against the abuses of legislative majorities and the inequities of positive law.

In short, in a contemporary pluralist society, law's legitimacy seems to require sacrificing either democracy or justice.