Page 129 - Courting the Media Contemporary Perspectives on Media and Law

120 Per-Anders Forstorp

FROM DISCOURSE ETHICS TO
LEGAL DISCOURSE THEORY

Another theory of communication, ethics and the law that is relevant to
bring up in this context is the deliberative theory associated with Jürgen
Habermas. Habermas‘ analyses of the communicative structure of social
coordination can be helpful in our attempt to understand situations including
expressions such as ―your words against mine‖. It is important to recall that
Habermas‘ theory deals with the deliberate dimension in the social and
political production of norms and opinions, i.e. it is about the conditions and
forms of collective conflict resolution based on the theory of discourse ethics.
This form of conflict resolution assumes the complete acceptance by the
parties concerning certain general principles for the ethics of discourse. Under
influence of the Frankfurt school, the speech act theory, and Marxism, and
American pragmatism, discourse ethics is based on a formal-pragmatic
analytic which goes beyond the semantic meaning, syntax and grammar in
order to investigate the general structures in the social coordination which
makes successful acting possible for those who take part in the interaction. In
arguing for this visionary goal, idealized assumptions about the
communicative procedures play an important part. Habermas calls these
―legitimacy claims‖ and a criterion of competent participants in
communication is that they know these claims. For instance, these competent
participants know how they should base their contributions on such shared
recognized assumptions. Furthermore, the specific attitude in a competent
participant is characterized by the ideal roles that are based on the premise that
each participant has to interpret and evaluate all contributions to the
conversation from the perspective of all participants. This is a version of
Kant‘s principle of universality that pushes the individual as accountable for
the perspectives of the others and as an important part of the production of
norms.

In the ideal discursive situation, everybody who wants can participate and
all should be protected from coercion. In the ideal situation there is plenty of
time to resolve the issues. Obviously, this ideal is hardly a description of how
conflict resolution actually takes place but, Habermas argues, we need to have
these ideals present when we are participating in such resolutions, because it
helps us as participants to utilize communal and optimized beneficial
principles for social and communicative coordination. The ideal, although