Page 131 - Courting the Media Contemporary Perspectives on Media and Law

122 Per-Anders Forstorp

Yet the roles of the participants are so defined that the taking of
evidence does not have the thoroughly discursive structure characterizing
a cooperative search for truth. [Habermas, p. 235]

Obviously, the different parties in a legal case cannot themselves
participate in the particular formulation of the verdict, but the way in which
they speak and represent their position is rationally organized by means of an
institutional guarantee that there will be a free exchange of arguments and
perspectives. The legitimacy of the court/law is continuously accomplished
through the same proceduralist principle as the legitimacy of normative
accounts is created in practical discourses.
How can ―your words against mine‖ situations be understood in the
framework of Habermas‘ theory of legal discourse? Habermas presents a
theory of the ideal conditions for argumentation in practical discourses and in
legal contexts. These ideal conditions imply that the parties in a conflict are
equal to each other. Both have a similar access to the argumentation and the
floor and the legal institution is partly instituted to preserve this state of affairs.
In the court the parties can present their own case and the judge can decide on
the basis of the evidence presented, ideally without letting external factors
affect the assessment. Habermas is developing a normative theory where all
conflict resolution, not just ―your words against mine‖ situations should be
dealt with in a fair and legitimate manner.

COMMUNICATION AND EPISTEMOLOGY

―Your words against mine‖ situations are first of all the name given to the
communicative escalation that leads to a need for resolution. Second, it is the
name given to the unsettled moment in the legal process prohibiting this from
proceeding; it actually ends with a draw. Generally, it can also be the name of
a conflict in all of its phases and the main task of the process is to show
evidence in favor of the indictment made. Evidencing is a complex process
that always should be based on more means of evidence than what is available
through the subjective accounts and observations by the parties, although these
can also be regarded as valid resources under certain conditions. In a process
using evidence, the court has to rely on other persons, in particular those
whose trustworthiness cannot be challenged. Michael Polanyi formulates these
conditions in a context of a general theory of knowledge, but it can also be