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South African Journal of Philosophy

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Justice, legal validity and the force of law with special reference to Derrida, Dooyeweerd and Habermas

DFM Strauss

Abstract


Philosophy, political philosophy and legal philosophy are all concerned with
issues of justice and the validity of law (also known as the force of law).
These two problem areas are discussed against the background of the intersection of traditional theories of natural law and legal positivism, mediated by the contribution of the historical school. In addition the influence of the two neo-Kantian schools of thought (Baden and Marburg) required attention, particularly because certain elements in the thought of Derrida, Dooyeweerd and Habermas are (implicitly) influenced by these schools. Derrida positions the problem of justice within the context of distinguishing universality and singularity (what is unique) and he alludes to the difficulty of bridging the gap between the two. It turned out that modern nominalism had an important effect on all three of the mentioned thinkers, in spite of their willingness to recognize “extra-mental” forms of universality. The problem of legal validity (the “force of law”) appears to be an instance of the interconnectedness between different aspects of reality, namely the jural and the physical. In order to account for this coherence Dooyeweerd developed a theory in which both the uniqueness and coherence between different aspects are explained in terms of inter-modal analogies. On this basis the difference between law and justice is specified by distinguishing between constitutive legal principles and the regulatively deepened (disclosed) principles of legal morality (such as fault, equity, bona fides and so on). It will be shown that the idea of positivization, shared by thinkers coming from different backgrounds, is an important ingredient of an understanding of the nature of legal validity. Explaining it will require a focus on the nature of state law, of the power of the state, and of the legal competence entailed in the office of government.



http://dx.doi.org/10.4314/sajpem.v28i1.42906
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