In democratic societies, legal procedures are to ensure legally correct and rationally acceptable decisions, i.e. decisions that can be defended both in relation to legal statutes and in relation to public criticism. But can the legal system via the discretion of the judges itself really autonomously settle normative questions? On this constitutionalists and proceduralists disagree. The problem is whether the substantial factors are legitimate, and whether the judges' interpretations of the situations are correct. Robert Alexy conceives of the legal discourse as a special variant of the general discourse but this blurs the distinction between legislation and application. There is a danger of assimilating law and morality and of overburdening the legal medium itself. Moral and legal questions point to different audiences, raise different validity claims and require different procedures for resolving conflicts. The author favours a variant of constitutional proceduralism hinged on discursive proceduralism which sets the terms for a fair procedure of reason giving. This standard for correctness is imperfect but ensures that the substantial, 'pre-political' principles entrenched in modern constitutions as basic rights are subjected to discursive testing in a deliberative process.
This paper has later been published in Agustín José Menéndez and Erik O. Eriksen (eds) Arguing Fundamental Rights (Springer 2006).