Abstract
The thesis argues against Jiirgen Habermas' and Robert Alexy's discourse theory of law that legal discourse cannot be understood as an instance of uncoerced and unfettered practical discourse due to features inherent to the law and bound to its materiality. The law's normativity necessarily rests on an epistemological paradigm. Precisely because the law's normative content depends on that epistemology, the latter cannot be problematised in the
course of legal discourse. Moreover, in order to maintain its systemic integrity and its social effectiveness the law needs to take positive action. Therefore, legal discourse is either not allowed to develop freely, as its input is censored from the outset, or it is violently and prematurely interrupted in order for action to be taken.
This low degree of discursiveness of the law is argued by looking at three of the dimensions of legal discourse. On the level of justification, legal discourse is disabled as the justification of sanctions is always an arbitrary calculation of relations between means and ends. However, in and by the law this calculation is considered just, it is ascribed normativity and it becomes irreversible. The law also colonises the temporal dimension of legal discourse thus manipulating it and depriving the participants of the freedom to decide.
Moreover, in order to satisfy the need for certainty and predictability the law compromises universalisation in time with the rule of law requirement of non-retroactivity. Finally, on the
level of fact-finding, the law precludes informational input that is not in accordance with its epistemological paradigm and also screens input through criteria of relevance imposed by the urgent need to act. The thesis also argues that, precisely because the law is marked by a low degree of discursiveness, it does violence to other normative orders by silencing them. It
is also argued that the project of legal pluralism cannot remedy this deficit without resorting to Utopia, as institutionalisation and normative pluralism are necessarily incompatible.
Finally two tentative suggestions are made as to how, without losing its critical sting, legal theory can help the law become more attentive to that plurality of legal order.
