Page 130 - Courting the Media Contemporary Perspectives on Media and Law

―Your Words Against Mine‖: States of Exception… 121

untenable, fills a normative function. In detail, the principles of discourse
ethics are the following:

1. prevent a rationally unmotivated termination of argumentation
2. secure both freedom in the choice of topics and inclusion of the best
information and reasons through universal and equal access to, as well
as equal and symmetrical participation in argumentation, and
3. exclude every kind of coercion – whether originating outside the
process of reaching understanding or within it - other than that of the
better argument, so all motives except that of the cooperative search
for truth are neutralized [Habermas, p.230].

The principles specify endless time, freedom to participate openly, and
freedom from coercion. Only the best argument in the coordinated search for
truth is the acceptable rational-logic principle that governs the pursuit of
communication aiming for consensus and conflict resolution.
Habermas is completely clear that the principles of discourse ethics cannot
readily be translated to a legal order of discourse. There is thus a difference
between discourse ethics and legal discourse theory. These two orders of
discourse have some things in common, for instance in that both prescribe how
collective norms logically can be applied. The ideal conditions for
argumentation in the court must be harmonized with the constraints that the
court regulates (Habermas, p. 234). The law should enable an argumentation
that is focused within the framework of the legal institution:

Procedural law does not regulate normative-legal discourse as such
but secures, in the temporal, social and substantive dimensions, the
institutional framework that clears the way for processes of
communication governed by the logic of application discourses.
[Habermas, p. 235]. (emphasis in original)

This assurance that communicative processes should function can be seen
in the distribution of social roles by the law and, in particular, in the symmetry
that should govern the relation of prosecutor and attorney, or between plaintiff
and defense; what we previously referred to as ―equality at arms‖. From this
basic equality the specific legal process is enacted as a battle between two
parties that pursue their own interests and where the judge shall decide only on
what is explicit in the court. Here we can see an important deviation from the
principle of cooperation in discourse ethics: