Ratio Juris. Vol. 12 No.

4 December 1999 (374–84)

The Special Case Thesis

ROBERT ALEXY

Abstract. The author outlines his thesis that legal discourse is a special case of general
practical discourse (Sonderfallthese) and develops it as an attempt to cover both the
authoritative, institutional, or real and free, discursive, or ideal dimension of legal
reasoning. On this basis, he examines the objections raised by Habermas (1996) to the
special case thesis. First, he discusses the reduction of general practical discourse to
moral discourses (genus proximum problem) holding that the former is a combination
of moral, ethical, and pragmatic arguments within the priority of just; second, he
examines the objection that general practical arguments change their character or
nature when employed in legal contexts (subset and specification problem) and the
related problems concerning legal validity and unjust law. He concludes proposing a
procedural (opposite to a coherential) integration of general practical arguments in
the legal context.*

I. The Authoritative and Discursive Character of Legal Reasoning

The discourse theory of law comprises a set of themes ranging from the
problem of practical knowledge via the system of rights to the theory of
democracy. Among these subjects the theory of legal argumentation is
closest to legal practice. This enables it to become a kind of touchstone for
the soundness of the overarching idea of discursive rationality in law. The
theory of legal argumentation can play this role because it is intrinsically
connected with all elements of the legal system. Two examples may serve to
illustrate this. The first concerns the relationship between the democratic
process and legal argumentation. The democratic process, resulting in parlia-
mentary decisions, provides for the most important starting points of legal
argumentation in a democratic constitutional state: statutes. The second ex-
ample is basic rights. It is not enough that a constitutional convention resolves
on a catalogue of basic rights. They have to be interpreted and implemented.
In part, this can be done by the legislature. But if the legislator itself is to be
bound by the basic rights, there must be some kind of argument about the
question whether a legislative act or a legislative omission violates basic

* Abstract by Giorgio Bongiovanni.

© Blackwell Publishers Ltd 1999, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA.
 The Special Case Thesis 375

rights or not. Arguments interpreting basic rights of a concrete constitution

are legal arguments. For that reason, there is a necessary relation between
basic rights binding all powers of the state and legal argumentation.
The two examples show that legal argumentation has a twofold face. It
participates, on the one hand, deeply in the authoritative, institutional, or
real character of law. This can be seen from the role of authoritative reasons
in legal arguments and the institutional setting of legal reasoning which
leads, in the last instance, not only to suggestions and proposals but to
definitive decisions of courts, enforced, if necessary, by power. On the other
hand, legal reasoning remains deeply connected with what can be called the
free, discursive, or ideal side of law. The necessity of legal reasoning which
is more than mere subsumption and, by this, more than mere execution
of the authoritative, emerges from the open texture of the authoritative
material often described (Hart 1994, 126ff.). Reasoning in gaps of the
authoritative material can, by definition, not be determined solely by what
is authoritative. It must be free to a certain degree. With respect to prece-
dents, the freedom is even greater. In spite of their more or less authoritative
character, everybody is free to criticize judicial decisions with legal argu-
ments. Such criticism can lead to a reversal of the sentence by a higher court
or to an overruling by a court deciding a similiar case later.
An adequate theory of legal argumentation must cover the authoritative,
institutional, or real side of legal reasoning as well as its free, discursive, or
ideal dimension. The special case thesis (Sonderfallthese) being the subject of
my considerations is an attempt to achieve just this.

II. The Special Case Thesis

The special case thesis states that legal discourse is a special case of general
practical discourse (Alexy 1989a, 212ff.). It is based on three reasons. The first
is that, in the end, legal discussion, like general practical argumentation, is
concerned with what is obligatory, prohibited, or permitted, hence with
practical questions. The second reason is that a claim to correctness is raised
in legal discourse as well as in general practical discourse. Both kinds of
argumentation are, therefore, discourses. The third reason states that legal
argumentation is a matter of a special case because the claim to correctness in
legal discourse is distinct from that in general practical discourse. It is not
concerned with what is absolutely correct but with what is correct within the
framework and on the basis of a validly prevailing legal order. What is
correct in a legal system essentially depends on what is authoritatively or
institutionally fixed and what fits into it. It must not contradict the authori-
tative and cohere with the whole. If one wants to express this in a short
formula, it can be said that legal argumentation is bound to statutes and to
precedents and has to observe the system of law elaborated by legal
dogmatics.
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376 Robert Alexy

III. Objections

Many objections have been raised against the special case thesis. I will not
try to deal with all of them at this point. Some have already been discussed
on other occasions (cf. Alexy 1993, 157ff.; 1996a, 426ff.). Here, I will con-
centrate on the objections considered or raised by Jürgen Habermas in his
book Faktizität und Geltung (1992), published in English as Between Facts and
Norms (1996).

1. Courtroom Proceedings
The special case thesis can be related to courtroom proceedings as well as to
legal argumentation as such, that is legal argumentation as it takes place, for
instance, in books, articles, or scholarly discussion. The first is institution-
alized, the second is not. The latter has the open and infinite character typical
of scientific discourse. This makes it quite different from courtroom pro-
ceedings defined by procedural rules governing the forensic action of the
parties as well as the activities of the court itself. Some authors have argued
that those procedural constraints exclude the understanding of courtroom
proceedings in terms of discourse theory (Neumann 1986, 84ff.; Kaufmann
1989, 20ff.). They can, indeed, hint at several features of such proceedings
that, at first glance, seem to be incompatible with any connection between
discourses and courtroom proceedings. The asymmetrical distribution of
roles in criminal proceedings, time constraints, and the actual motivations of
the participants who often if not usually are concerned to achieve a judg-
ment which is to their advantage rather than a correct or just outcome form
three examples.
All of these observations are correct, but they miss the decisive point. The
decisive point is that the parties put forward arguments which claim to be
correct, even if they are subjectively only following their own interests
(Alexy 1989a, 219). They at least pretend that their arguments would be
accepted by all under ideal conditions. By this, they contribute, as Habermas
says “to a discourse that from the judge’s perspective facilitates the search for
an impartial judgment” (Habermas 1996, 231).
This argument has recently been attacked by Ulfrid Neumann. According
to Neumann, it is not enough to conceive the arguments of the parties
merely as contributions which help the judge to find an impartial
judgment. This deprives the parties of the status of participants in discourses
and reduces them to sources of information. A procedure in which only
one participant, the judge, decides and gives the final argument and all the
others only provide information had no discursive but a monological
structure. This, according to Neumann, contradicts the basic ideas of the
discourse theory of law (Neumann 1996, 417f.).
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 The Special Case Thesis 377

This objection underestimates the complexity necessary in order to institu-

tionalize discursive rationality. Even if one agrees with Neumann that the
accused should have a right to discuss all relevant legal questions of his case
with the judge (Neumann 1996, 426), one cannot deny that it is the court
which has to decide and argue in the last instance. If the court wants to
decide correctly, it has to hear all the arguments, which is nothing other than
the old audiatur et altera pars, and if the correctness of its decision shall be
subjected to control, the court must justify its judgement before the partici-
pants and the general and the legal public. By this, it is connected with dis-
courses before higher courts, in the legal profession, and among the public.
All this is, taken together, enough to interpret courtroom proceedings in terms
of discourse theory.

2. Moral, General Practical, and Legal Discourse

a) Moral Discourse and Legal Argumentation
Whether the special case thesis is correct or not essentially depends on what
one means by “general practical discourse.” This problem could be called the
genus proximum problem. If one interprets the expression “general practical
discourse” as denoting moral discourses as defined by Habermas, the special
case thesis can easily be shown to be wrong. Moral discourses in the sense of
Habermas concern universalization and only universalization (Habermas
1996, 153). A moral question is at stake if someone asks which norms

can be justified if and only if equal consideration is given to the interests of all those
who are possibly involved […] With moral questions, humanity or a presupposed
republic of world citizens constitutes the reference system for justifying regulations
that lie in the equal interest of all. (Habermas 1996, 108)

It is quite obvious that legal argumentation is open not only to moral reasons
defined in this sense, but also to ethical-political and pragmatic reasons as
Habermas defines them (Habermas 1996, 154f., 230, 283). The first concern
our collective self-understanding embodied in our traditions and strong
evaluations (Habermas 1996, 108), the second, the suitability of means for
realizing certain goals as well as the balancing of interests and compromises
(Habermas 1996, 108, 154, 159).
It is not only a matter of fact but also systematically necessary that ethical
as well as pragmatic reasons play an indispensable role in legal reasoning.
One of the most important starting points of legal reasoning are statutes
resulting from the democratic process. In democratic decision-making all
three kinds of reasons are legitimate reasons (Habermas 1996, 108). If legal
argumentation is to connect with what has been decided in the democratic
process it has to consider all three kinds of reasons presupposed by or
connected with its results.
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378 Robert Alexy

b) The Concept of the General Practical Discourse

Therefore, Habermas’ thesis that legal discourses should not be conceived as
a subset of moral argumentation as he understands it (Habermas 1996, 230)
is evidently true. But this does not defeat the special case thesis. According
to it, the genus proximum of legal discourse is not moral discourse as defined
by Habermas but general practical discourse. A general practical discourse
is not the same as a moral discourse in the sense of Habermas. It is a dis-
course in which moral, ethical, and pragmatic questions and reasons are con-
nected (Alexy 1996b, 1033). General practical discourses differ from legal
discourses in being not dependent on institutional reasons. For legal argu-
mentation institutional reasons like statute and precedent are constitutive;
for general practical argumentation they are not.
The formation of a concept of practical discourse which comprises moral,
ethical, and pragmatic arguments is both sensible and necessary. It is sen-
sible because often a purely moral argumentation, that is an argumentation
which only looks at what is “equally good for all human beings” (Habermas
1996, 153) is not enough to give an answer to a practical question, that is to
a question concerning what should be done or omitted. In many cases,
ethical and pragmatic arguments must supplement moral arguments in
order to achieve an answer to a practical question. The pragmatic dimension
comprises, according to Habermas, the question of which means are suitable
for realizing certain goals and it leads, if conflicts between goals occur, to
the problem of weighing (Habermas 1996, 159). All practical problems of
more than a minimal complexity demand for consideration of the relation
between means and ends or goals and between goals. Expediency, therefore,
is a necessary element of rational practical discourse (Alexy 1989a, 197ff.).
Again, often justice as being equally good for all and expediency, even if
taken together, are not enough to decide a practical question. Conflicts
between goals which cannot be solved by the equally-good-for-all-criterion
alone are examples. We then have to go into the ethical dimension in order
to perform a rational weighing of the conflicting goals “in the light of accepted
value preferences” (Habermas 1996, 159).
The general practical discourse is, in short, a discourse which combines
the standpoints of expediency or utility, of value or identity, and of morality
or justice. This combination, however, is not a mere addition. There exist
both, a priority order and a relation of permeation between the suitable, the
good, and the just.

c) Priority Relations between the Elements of General Practical Discourse

The priority of the good over the suitable results from the fact that even the
highest degree of suitability of a means for an end does not count anything
if the end is of no value at all. Suitability is attractive only if the ends or
goals have some attraction. The priority of the just over the good is a much
more difficult matter. The good as a subject of ethical discourses expresses
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 The Special Case Thesis 379

non-universal individual and collective values. Something can be good or of

value for some people without being good or of value for all people. The just
represents the universal moral point of view. Its priority can be substantiated
only by showing that the moral point of view is necessary for all. This can be
done by reconstructing necessary presuppositions implicit in elementary
speech acts like asserting, asking, and arguing, inevitable or indispensable
for all. It shall be assumed here that such a substantiation of the universal
validity of the moral point of view is possible (cf. Alexy 1996c, 213ff.). Should
this assumption be true, universal validity would imply priority of the just
over the good.

d) General Practical Discourse and the Unity of Practical Reasoning

Priority is a simple matter when what is ordered is clearly or sharply
separated one from the other. This, however, is not the case with the just and
the good. The just is permeated by the good. This becomes clear if one does
not reduce the domain of the just to elementary human rights like the right
to life, the right not to be subjected to torture, and the right not to be held in
slavery. These rights seem to belong to what is equally good for all, inde-
pendent from particular conceptions of the good. But if one conceives justice
as comprising all questions of distribution and retribution, then problems
like that of the welfare state and that of punishment have to be treated as
questions of justice. The answers to these questions depend on many rea-
sons. Among them arguments about how one should understand oneself
and the community in which one lives play an essential role. By this, the just
depends on the good. Changing one’s self-understanding or one’s inter-
pretation of the tradition in which one has been bred (cf. Alexy 1989a, 204f.)
can change one’s conception of justice. All this shows that general practical
discourse is not a simple mix or combination but a systematically necessary
connection expressing the substantial unity of practical reason. This is the
basis of the special case thesis.

3. The General and the Specific

Even if one agrees that the special case thesis refers not to moral but to
general practical discourse and that, in principle, general practical discourse
might be a genuine genus proximum because it is more than a mere mix or
combination of pragmatic, ethical, and moral elements, one can continue to
insist that the special case thesis is wrong. One simply has to say that general
practical arguments essentially change their character or nature when
employed in legal contexts. They cease to be general arguments and gain
something specifically legal. They are—to use an expression of Habermas,
not translated literally in the English edition (Habermas 1996, 205)—
“impregnated” by law (Habermas 1992, 252).
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380 Robert Alexy

a) The “Different Mode of Validity” and the “Change in Meaning”

Several statements of Habermas point in this direction. According to Habermas,
the “migration of moral contents into law” does not mean that the moral
contents continue to be simply moral contents. They are “furnished with a
different mode of validity” (Habermas 1996, 206). This is quite plausible as
far as the dimension of validity is concerned. So, for instance, a moral right
attains legal validity in addition to moral validity by being transformed into
a basic right as part of a constitution. But Habermas refers not only to the
dimension of validity. He says that “moral contents, once translated into the
legal code, undergo a change in meaning that is specific to the legal form”
(Habermas 1996, 204).
It seems that Habermas wants to state that the transformation or employ-
ment of moral contents into or in law affects not only the dimension of
validity but also the dimension of substance. To this corresponds the thesis
that legal discourses are embedded in the legal system from the outset:

Legal discourses do not represent special cases of moral argumentation that, because
of their link to existing law, are restricted to a subset of moral commands or
permissions. Rather, they refer from the outset to democratically enacted law and […]
not only refer to legal norms but […] are themselves embedded in the legal system.
(Habermas 1996, 234)

The question is whether moral arguments as well as the other arguments of

general practical discourse do indeed change their character or nature so
essentially when employed in legal discourse that the special case thesis
breaks down.

b) The Subset Assumption

Habermas ascribes two assumptions to the special case thesis which are,
indeed, problematic but, fortunately, not necessarily connected with it. The
first can be called the subset assumption, the second the specification
assumption. According to the subset assumption, the special case thesis says
that legal discourses are moral discourses “that, because of their link to
existing law, are restricted to a subset of moral commands or permissions”
(Habermas 1996, 234).
This corresponds to the view that legal argumentation can take one part of
the way to a point at which specifically legal arguments are no longer avail-
able. At exactly that point general practical argumentation must intervene.
Both versions of the subset assumption are incompatible with the insight
that in rational legal argumentation specifically legal arguments and gen-
eral practical arguments are combined at all levels and applied jointly
(Alexy 1989a, 284ff., 291f.). One might call this the integration assumption
(Alexy 1989a, 20). The special case thesis to be defended here is the special
case thesis in the interpretation not of the subset but of the integration
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 The Special Case Thesis 381

assumption. The differentia specifica of the legal discourse is not mere

restriction by validly prevailing law but integration into the legal system.

c) The Specification Assumption

The second problematic assumption Habermas ascribes to the special case
thesis is the specification assumption. According to this assumption, the
special case thesis is required to show that the special rules and forms of
legal argumentation “merely specify the universal requirements for moral-
practical discourses in view of the connection with existing law” (Habermas
1996, 231).
It will never be possible to fulfil this requirement. But this causes no harm
to the special case thesis. There are some rules and forms of legal discourse
which indeed correspond to those of general practical discourse (Alexy
1989a, 289ff.) but it is not only innocuous that not all of them do so, but
necessary. Legal discourse is essentially defined by employing authoritative
reasons. Linguistic, genetic, and systematic arguments help to build up the
authority-bound character of legal argumentation which is indispensable for
the special case thesis. For that reason it is not true that all specific rules and
forms of the legal discourse have to be special cases of the rules and forms
of the general practical discourse in order to make the legal discourse a
special case of the general practical discourse. Quite the opposite is correct.

d) Unjust and Unreasonable Law

One could admit all this but insist that a “special case thesis” which avoids
the subset and the specification assumption is not any longer a special case
thesis.
The specification assumption has been shown to be incompatible with the
authoritative character of legal reasoning demanding rules and forms of
legal argumentation which are not special cases of rules and forms of general
practical discourse. It is just this authoritative character of legal reasoning
which has led several authors to think that legal discourse is not a special
case of general practical discourse but something qualitatively different or
an aliud (Neumann 1986, 90; Braun 1988, 259). As a kind of touchstone an
unjust or unreasonable statute is quoted which allows only for an unjust or
unreasonable decision (Neumann 1986, 90). Habermas argues that in such
cases the assumption of “harmony between law and morality” which he
thinks to be implicit in the special case thesis “has the unpleasant conse-
quence not only of relativizing the rightness of a legal decision but of
calling it into question as such.” The reason for this is that “validity claims
are binarily coded and do not admit of degrees of validity” (Habermas
1996, 232).
In order to reply to this objection one has to make two distinctions. The
first is the distinction between two aspects which are combined in the claim
to correctness necessarily connected with judicial decisions (Alexy 1989b,
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382 Robert Alexy

178ff.). The first aspect is the claim that the decision is correctly substantiated
if one presupposes the established law, whatever it may be. The second
aspect is the claim that the established law on which the decision is based is
just and reasonable. Both aspects are contained in the claim to correctness
raised in judicial decisions. Judicial decisions not only claim to be correct
within the framework of the validly established legal order but also to be correct as
legal decisions. A judicial decision which correctly applies an unjust or unrea-
sonable statute does not fulfil the claim to correctness raised by it in all
respects. If the unjust or unreasonable statute is legally valid, the decision
based on it is legally valid, too, and in many, if not in most cases, the prin-
ciples of legal certainty, of separation of powers, and of democracy demand
from the judge to follow even unjust and unreasonable statutes when there
is no room for interpretation so that his decision is correct under the given
circumstances, unhappy as they are. But nevertheless the decision is not a
legally perfect one. It is soaked with the faultiness of the statute (Alexy
1996a, 433).
The second distinction is that between raising a claim and its compliance.
The special case thesis does not assume that there actually and always exists
a “harmony between law and morality” (Habermas 1996, 232). It only says
that such harmony is always implicit in law’s claims (Pavlakos 1998, 148,
151f.). Such claims have only weak but far-reaching consequences. They put
everything into a different light. Unjust judicial decisions cannot be called
merely morally questionable but nevertheless legally perfect any longer. They
are also legally defective. Hence the law is not only open to moral criticism
from the outside. The critical dimension is replaced right into law itself.
Habermas’ thesis that the rightness or correctness of legal decisions is not
only relativized but also called into question by unjust or unreasonable legisla-
tion takes a quite different meaning depending on whether it refers to claims
or their compliance. If one refers it to claims, nothing is relativized. Mere
noncompliance does not call claims into question. If one refers it to com-
pliance, the rightness or correctness is indeed relativized. But this, too, calls
nothing into question because the special case thesis needs only claims and
not their compliance.

e) The Integration of Arguments and the Institutionalization of

Practical Reason
The question remains whether the substitution of the subset assumption by
the integration assumption does not deprive the special case thesis of its
basis. One could argue that the integration of general practical arguments in
the context of legal arguments changes their character or nature. If this is
true, the integration of general practical arguments in a legal context will
indeed lead to something like “a different mode of validity” (Habermas 1996,
206), “a change in meaning that is specific to the legal form” (Habermas
1996, 204), or a “more complex validity dimension” (Habermas 1996, 233). If
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 The Special Case Thesis 383

general practical arguments change their character or nature by being inte-

grated in legal contexts, general practical discourse would not be the genus
proximum of legal discourse any longer and the special case thesis would
break down.
The integration of general practical arguments in the legal context can be
conceived in two ways. The first is coherentist; the second, procedural. The
most radical coherentist view is that of legal holism. According to it, all
premises are already part of or hidden in the legal system and only need to
be discovered. This idea has always been fascinating for jurists due to its
promise of total autonomy of law. It would provide for a perfect solution of
the legitimation problem of judicial decision-making. In a democracy, for
instance, it would make it possible to trace back each legal decision com-
pletely to what has already been enacted in the process of democratic
legislation. Habermas’ dictum that legal discourses “refer from the outset to
democratically enacted law” (Habermas 1996, 234) would be more than
fulfilled. However, the idea of legal holism in the form of perfect or ideal
coherence is not realizable, and, Habermas is quite clear about it: “the
orientation toward such a demanding ideal will, as a rule, overtax even
professional adjudication” (Habermas 1996, 220).
Every formula suggested for the precision of that idea proves to be open
and dependent on being filled with values and norms that are not already
included in what already has been established as valid law. Whether one
takes the Hermeneutic insight of the circular structure between pre-
understanding and text, part and whole, and norm and facts of a case, or
the demand that rational application of norms has to take all facts of the case
and all the relevant norms into consideration (Günther 1993, 151), or the
worldly-wise maxim to search for similiarites, one always has something
most reasonable but also something most incomplete and therefore in
need of supplementation beforehand (Dwars 1992, 57f.; Alexy 1993, 160ff.;
Alexy 1995, 75ff.). Just as norms cannot apply themselves, a legal system as
such cannot produce coherence. To achieve this, persons and procedures are
necessary for feeding in new contents.
This leads to the second way of integrating general practical arguments in
the legal context: the procedural one. It is a general and deep problem of
argumentation theory whether an argument changes its character or nature
in changing contexts. One can assume that the solution to this problem
depends on what is meant by a change in the character or nature of an
argument. Here, the basis of an understanding of this concept shall again be
the idea of the unity of practical reason. According to this idea, the legal
system of the democratic constitutional state is an attempt to institutionalize
practical reason. Practical reason justifies the existence of the legal system
as such and its basic structures, it has to be vivid in the procedures of
democratic opinion- and will-formation if their results are to be legitimate,
and it must be employed in legal argumentation in order to fulfil the claim
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384 Robert Alexy

to correctness that is raised in it. General practical arguments have to float

through all institutions if the roots of these institutions in practical reason
shall not be cut off. General practical arguments are non-institutional argu-
ments. Non-institutional arguments floating through institutions may be
embedded, integrated, and specified as much as one wants, as long as they
remain arguments they retain what is essential for this kind of argument:
their free and non-institutional character. This is not the only but, perhaps,
the ultimate reason for the special case thesis.

Christian Albrechts University

Faculty of Law
Olshausenstraße 40
D-24118 Kiel
Germany

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