On the limits of legal argumentation: judicial activism, jürgen habermas and chantal mouffe

Abstract

This paper intends to discuss the idea of legitimacywhich is in the core of the understanding about the balancingprinciples method outlined in the wake of the judicial activismassumed by the German Federal Constitutional Court(Bundesverfassungsgericht - BVG) and, in Brazil, by theSupreme Court - STF. Initially, we studied Robert Alexy’sTeory of Legal Argumentantion as it constitutes one of themost influential interpretations of the Germanconstitutional culture which tries to devise a methodologyto rationally justify the difficulties brought about bythe transition of the jurisprudence ofthe Bundesverfassungsgericht to activism. Then we proceededto critically review Alexy’s theory through two theories: a) thecriticisms addressed by Jürgen Habermas with respect tothe Law subordination to Moral, as well as to the relativizationof principles; and b) the agonistic model of democracy proposedby Chantal Mouffe, so as to deconstruct the balancing method’sclaim to legitimacy, in order to criticize the model of rationalitythat serves as a substrate to the idea of legitimacy based onthe ”argumentative representation.