Habermas' Reconstructive Theory of Law: On the logical genesis of fundamental rights

Abstract

In this article I seek to show that Habermas’ reconstruction of the logic
genesis of system of rights is an attempt to clarify the meaning of constitutional
practice, reducing it to two factors, the principle of discourse and the concept of
legal form. The principle of discourse can be the subject of an internal reconstruction,
by which the participants of deliberative practice can recognize it as
inherent in the praxis, because the principle of discourse rests on presuppositions
of language socialization in general. On the other hand the legal form can not be
derived from the conditions pragmatic of language and needs a reconstruction of
another type, just a theory of social evolution.