Habermas Successfully Dissolves the Dichotomy Presented in the Critical Legal Studies and Ronald Dworkin Debates
Losey, Scott Charles
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This project will investigate the dichotomy presented in the Ronald Dworkin and Critical Legal Studies debate. I will first examine Dworkin's defense of liberal jurisprudence by way of his critique of legal positivism and his model of rational reconstruction. What will emerge from Dworkin's sophisticated jurisprudence will be a way in which neutrality is achieved without sacrificing objectivity. Through the application of principles and his insistence on finding the one, correct answer, Dworkin will seemingly provide the judicial system with objectivity and determinacy. The Critical Legal Studies movement, however, will directly challenge Dworkin's liberal jurisprudence. Through analysis of the arguments offered by CLS proponent Roberto Unger, the movement will claim that neutrality is impossible in a pluralistic society. I will further analyze CLS's account of the right and the good. Their contention is that state enforcement of the right ultimately influences individual choices of the good; therefore, neutrality cannot exist. The three most provocative arguments presented by CLS are the patchwork thesis, the duck-rabbit thesis, and the truncation thesis. Each thesis is fashioned to provide ways in which Dworkin's liberal jurisprudence is unable to produce neutrality or objectivity. As a result, a dichotomy exists. On the one hand, if you choose to accept Dworkin's idealizations for objectivity, neutrality, and determinacy, then you efface reality. On the other hand, if you choose to accept realism in the way CLS advocates, then you get relativism. Habermas, however, offers idealizations that give you objectivity, neutrality, and determinacy without losing reality or plurality. I will present Habermas's discourse theory as a way in which the legal system emerges as a medium to test the process of law. Furthermore, I will provide Habermas's theory on Facticity and Validity as a way in which the equilibrium between private and public autonomy provides legitimacy to the legal system. As a result, I propose that Habermas provides a form of jurisprudence that offers tenable idealizations that successfully dissolve the apparent dichotomy in the Dworkin/CLS debates.