alexy robert, the special case thesis

The Special Case Thesis

ROBERT ALEXY

Abstract. The author outlines his thesis that legal discourse is a special case of generalpractical discourse (Sonderfallthese) and develops it as an attempt to cover both theauthoritative, institutional, or real and free, discursive, or ideal dimension of legalreasoning. On this basis, he examines the objections raised by Habermas (1996) to thespecial case thesis. First, he discusses the reduction of general practical discourse tomoral discourses (genus proximum problem) holding that the former is a combinationof moral, ethical, and pragmatic arguments within the priority of just; second, heexamines the objection that general practical arguments change their character ornature when employed in legal contexts (subset and specification problem) and therelated problems concerning legal validity and unjust law. He concludes proposing aprocedural (opposite to a coherential) integration of general practical arguments inthe 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 parlia-

mentary decisions, provides for the most important starting points of legal

argumentation in a democratic constitutional state: statutes. The second ex-

ample 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

Ratio Juris. Vol. 12 No. 4 December 1999 (374–84)

© Blackwell Publishers Ltd 1999, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.

* Abstract by Giorgio Bongiovanni.

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 prece-

dents, the freedom is even greater. In spite of their more or less authoritative

character, everybody is free to criticize judicial decisions with legal argu-

ments. 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 authori-

tative 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.

The Special Case Thesis 375

© Blackwell Publishers Ltd 1999.

III. Objections

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 con-

centrate on the objections considered or raised by Jürgen Habermas in his

book Faktizität und Geltung (1992), published in English as Between Facts andNorms (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 institution-

alized, the second is not. The latter has the open and infinite character typical

of scientific discourse. This makes it quite different from courtroom pro-

ceedings 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 judg-

ment 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 judge’s 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.).

376 Robert Alexy


This objection underestimates the complexity necessary in order to institu-

tionalize 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 partici-

pants and the general and the legal public. By this, it is connected with dis-

courses 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 thosewho are possibly involved […] With moral questions, humanity or a presupposedrepublic of world citizens constitutes the reference system for justifying regulationsthat 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.



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 dis-

course in which moral, ethical, and pragmatic questions and reasons are con-

nected (Alexy 1996b, 1033). General practical discourses differ from legal

discourses in being not dependent on institutional reasons. For legal argu-

mentation 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 sen-

sible 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

378 Robert Alexy


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, inde-

pendent 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 rea-

sons. 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 one’s self-understanding or one’s inter-

pretation of the tradition in which one has been bred (cf. Alexy 1989a, 204f.)

can change one’s 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 are—to use an expression of Habermas,

not translated literally in the English edition (Habermas 1996, 205)—

“impregnated” by law (Habermas 1992, 252).



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 employ-

ment 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, becauseof their link to existing law, are restricted to a subset of moral commands orpermissions. 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 avail-

able. 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 gen-

eral 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

380 Robert Alexy


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 moral-

practical 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 conse-

quence 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,



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 aslegal decisions. A judicial decision which correctly applies an unjust or unrea-

sonable 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 prin-

ciples 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 givencircumstances, 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 law’s 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 legisla-

tion 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 com-

pliance, 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

382 Robert Alexy


general practical arguments change their character or nature by being inte-

grated in legal contexts, general practical discourse would not be the genusproximum 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 com-

pletely 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 pre-

understanding 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 (Günther 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



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 argu-

ments. 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 UniversityFaculty of Law

Olshausenstraße 40D-24118 Kiel

Germany

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384 Robert Alexy


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