The Tension between Facticity And Validity in The Judicial Procedure -, ivr 2013

Hello to everyone! This recording is a register of my presentation in July 25th in my Workshop of the IVR Congress 2013. The title of the presentation is "The Tension Between Facticity and Validity in the Judicial Procedure" and it deals with Habermas's theory of law and democracy in Between Facts and Norms, trying to develop his approach to the judicial procedure to the point that it can explain and evaluate critically the major trends of our time concerning procedural law. This presentation pretty much summarizes the main points of my future doctoral thesis and, because of that, any comment or sugestion will be extremely welcome in this step of the way. So that's enough for introduction and let's skip to the real thing. In Between Facts and Norms Habermas offers a critical-theoretical approach to law and democracy by means of the concept of tension between facticity and validity. This tension arises in language, between context and ideality in meaning and validity, and then comes to law. In law it shows first, at the level of product, in the very norms, as tension between freedom and coercion and then, at the level of process, in legislation, as tension between positivity and legitimacy. Together they form the internal tension, to be complemented by an external tension between the idealization of legal orders and their empirical realization. Between Facts and Norms can be read as a demonstration that a critical theory can explain the relation between law and democracy only through the internal and the external tension within the law: the internal tension being best explained with a rational reconstruction of the self-comprehension of modern legal orders (subject of chapters from III to VI of the book) and the external tension being best addressed with a new model of power circulation from the public sphere to legislation (subject of chapters from VII to IX). Considered as a whole, the book project relies on the critical potential of the concept of tension between facticity and validity. However, when it comes to the judicial procedure, Habermas's approach is not equally convincing. The judicial procedure appears twice in the work, first in Ch. III as the discursive substitute for Dworkins's judge Hercules, then in Ch. VI as the backdrop for a debate on judicial review, never with its own internal and external tension. On the contrary, it appears as tantamount to rational discourse, although Habermas does little for supporting that claim; he just says that each party's argument has to present itself as a contribution for finding the right decision and the judge's point of view takes their dispute as a discourse where the best argument must prevail. But, when indistinguishable from rational discourse, the judicial procedure assumes a purely idealized form and becomes a magical wand capable of turning everything into a more rational version of themselves.