9 DIGNITAS n On the discursive nature of Law Abstr Act t he article deals with the concept of discourse in legal meth- odology from the point of view of discursive theory. As its starting point, this theory asks the question of under what conditions the meanings of social phenomena, social reality can become subjec- tively perceived, and on what knowledge, rules, statements, ideas, beliefs, values, norms, practices, and procedures their reality is based. Law is a linguistic phenomenon, and language is the core of every discourse. t herefore, the findings of this theory, trans- ferred to the field of procedural law, illustrate how the structure of procedural discourse with its compulsive logic influences the constitution of the identity of not only discursive objects but also the constitution of discursive subjects as participants in procedur- al discourse as a communication process. For such phenomena, it is typical that they represent a value-neutral category from an ontological point of view. t herefore, their social and legal mean- ing is not given to us in advance and directly, but they acquire such meaning only in the process of intersubjective evaluation embedded in the system of assumptions according to which it is determined which statements in the discourse can influence the determination of the identity of its objects and subjects. In such a procedure, discourse is an analytical tool that resolves its internal contradictions through argumentation to reach a decision on con- troversial issues in accordance with its normative structure. t he object of study of discursive theory is a complex and elusive phe- nomenon, which is translated by a series of concepts such as dis- course, discourse structure, discursive thinking, discursive prac- On the discursive nature of Law Zlatan Dežman* * Zlatan Dežman, Associate Professor at the European Law Faculty, slovenia, and former senior judge, Maribor 10 DIGNITAS n Theory of Law tice, analytical discourse, discourse analysis, discursive objects, discursive subjects, ideology and discourse, discursive disloca- tion, and truth as a normative and discursive category. t herefore, the presentation of these concepts is the subject of this paper. Key words: discourse, discursive thinking, structure, methodol- ogy of law, judicial procedure, social facts, legal facts, objects and subjects of discourse, rationality, truth O diskurzivni naravi prava POv ZEt Ek Članek obravnava koncept diskurza v pravni metodologiji z vidika diskurzivne teorije. t a teorija kot izhodišče postavlja vprašanje, pod kakšnimi pogoji postanejo socialni pojavi sub- jektivno zaznavni in na katerem znanju, pravilih, izjavah, idejah, prepričanjih, vrednotah, normah, praksah in postopkih temelji njihova realnost. Pravo je jezikovni pojav in jezik je jedro vsake- ga diskurza. Zato ugotovitve te teorije, prenesene na področje procesnega prava, ilustrirajo, kako struktura procesnega diskur- za s svojo prisilno logiko vpliva na identiteto ne le diskurzivnih objektov, temveč tudi diskurzivnih subjektov kot udeležencev v procesnem diskurzu kot komunikacijskem procesu. Za take po- jave je značilno, da predstavljajo vrednostno nevtralno kategorijo z ontološkega vidika. Zato njihov družbeni in pravni pomen ni vnaprej in neposredno dan, temveč tak pomen pridobijo šele v procesu intersubjektivne ocene, vgrajene v sistem predpostavk, po katerih se določa, katere izjave v diskurzu lahko vplivajo na določanje identitete objektov in subjektov. v takem postopku je diskurz analitično orodje, ki preko argumentacije razrešuje svoja notranja protislovja, da bi dosegel odločitev o spornih vprašanjih v skladu s svojo normativno strukturo. Predmet študije diskur- zivne teorije je kompleksen in težko izmuzljiv pojav, ki ga ude- janja niz konceptov, kot so diskurz, diskurzivna struktura, diskur- zivno razmišljanje, diskurzivna praksa, analitični diskurz, analiza diskurza, diskurzivni objekti, diskurzivni subjekti, ideologija in diskurz, diskurzivna dislokacija in resnica kot normativna in dis- kurzivna kategorija. Zato je predstavitev teh konceptov predmet tega članka. 11 DIGNITAS n On the discursive nature of Law Ključne besede: diskurz, diskurzivno razmišljanje, struktura, metodologija prava, sodni postopek, družbena dejstva, pravna dejstva, objekti in subjekti diskurza, racionalnost, resnica 1. Introduction t he Faculty of European Legal studies at the University of k ranj recently published its research entitled „Ideology in the c ourts.“ t he study is an analysis of the influence of the ideological profile of judges on their decisions. It starts from the viewpoint that law is primarily an ideological construct in the function of politics and not its limiting framework. t herefore, it is always subjective and ideological because the legal system is never so perfect that it can exclude the subjective attitude of judges as ideological or even political actors. Ideology, which is present everywhere, de- termines the chosen judicial-ideological or legal-philosophical ap- proach and influences the decision-making of judges. In this con- text, ideology represents a complete worldview, a rounded sys- tem of ideas and values of an individual, with which they observe, analyze, understand and co-create themselves, the relationship between themselves and the social world that surrounds them, and perceive the social world as such. t he subjectivist conception of law is diametrically opposed to its objectivist understanding because it is grounded in legal realism. Legal realism understands law as the result of the volun- tary, self-interested, and therefore subjective action of judges, for whom legal language is merely a tool for subsequent justification of their decisions, which are mostly based on extra-legal reasons. While a judge‘s ideology reveals their view of the world, judicial philosophy represents the way in which the judge understands and interprets the law. t he emphasis on this is primarily to miti- gate the politicization of law and its idealistic, objectivist concep- tion. t his means that it is necessary to recognize its subjectivist nature, make it as transparent as possible, and also subject it to careful research because this is the way to ensure that ideology remains in the function of law, but not that the latter is in function of ideologies. t he discursive conception of law is located at the intersection of the objective and subjective conception of law. According to this conception, law is neither entirely objective nor entirely subjec- 12 DIGNITAS n Theory of Law tive, but rather a discourse as an argumentative practice that takes place in accordance with special, law-specific discursive rules that frame the actions of legal decision-makers. Acknowledging its dis- cursive nature, according to the principle of checks and balanc- es, ensures pluralism even within the judiciary itself. Indeed, the recognition of the presence of judicial ideology strengthens the persuasiveness of argumentation in decision-making in a specific case, in line with Dworkin‘s, Alexey‘s and Habermas‘ conception of law. such an approach requires, first of all, a transition from an objective to a discursive conception of law, because it recognizes both its objective and subjective character. t herefore, in its con- cluding observations, the research advocates for the promotion of a discursive approach in the formulation of judicial decisions, not only in the c onstitutional c ourt and the supreme c ourt of the r epublic of slovenia, but also in lower courts. t he study proposes that the ability of judges for discursive thinking should also be taken into account when appointing them, as evidence of their professional excellence and personal integrity. 1 t he research provides an epistemological critique not only of the understanding of law, but also of social phenomena in general. It not only emphasizes the importance of discourse in the context of the jurisprudence of the c onstitutional c ourt, but also analyzes the influence of judges‘ ideology on their decision- making, and therefore the influence of the broader discursive en- vironment on their thinking. Although discourse is referred to in various senses in legal theory, it is not defined in detail. t ypically, it is defined as a synonym for argumentative speech or argumen- tation expressed in oral or written form, and from a methodologi- cal perspective, it represents a communicative approach to the study of law at all three levels: theoretical, legislative, and practi- cal (v isković, 1989, p. 18–25). It is also understood as a synonym for the systematic treatment of a certain topic (v ezovnik, 2009, p. 10). It is explained with the phrase that modern law justifies its legitimacy with procedural discourse and that it is „mainly based on the procedural moment“ (Zupančič, 1990, p. 118). by referring to its discursive nature, modern law also emphasizes its rational- ity, i.e. discursive rationality, because its implementation is sup- posed to be permeated by the awareness of where our actions 1 t he mentioned is a summary of the key points of the research of the Faculty of European Legal studies in k ranj. (Avbelj et al., 2021) 13 DIGNITAS n On the discursive nature of Law are led by reason and from where irrational moments take over their guidance (cerar, 2001a, p. 125). Emotions can sway one‘s decision-making, but legal logic serves as a firm rein to prevent personal biases from overriding the system of rules that dictate the normative structure of procedural discourse. t his discourse centers on factual and legal issues, which form the judge‘s proce- dural object or subject. t herefore, the question arises, what is discourse in essence, what kind of thinking is discursive thinking, what defines it, what effects does it produce and how does its normative structure affect the constitution of its objects and subjects. 2 t he research does not provide an answer to it, because by referring to Dwor- kin, Alexy and Habermas, it assumes that this concept is clear enough and that the way in which legal discourse, embedded in its normative structure, produces legal effects, as well as in legal theory, is also clear. r egardless, it is clear that the research assigns an important place to this concept in the methodology of law, and logically calls for its more precise analysis. In the field of discursive theory, discourse is considered a very complex and elusive concept, that it is often used in a wide vari- ety of meanings and connections, that it is so empty in terms of content that it can mean everything or nothing, and that it can be defined in different ways (v ezovnik, 2009, pp. 10 and 11). Just as discursive objects and subjects have no ontological status, neither does discourse itself. Its understanding has various philosophical and theoretical basis that influence its definition as well as its use in the analysis of social practices (Frank, 2013, pp. 59). 3 Discourse is a practice that shapes the objects it discusses in a systematic way, even without the awareness of its participants. t he partici- pants are often unaware of how the discourse, confined within its own structure, influences and shapes their subjective identity (Frank, 2013, pp. 61). being aware of the effects of discourse is crucial, especially given that social sciences cannot develop inde- pendently based solely on their own cognitive heritage. r ather, 2 In slovenia, the Faculty of social sciences, which mainly performs critical analysis of media di- scourse, has so far shown the greatest interest in critical discourse analysis, which is already a fully established discipline internationally. see bergoč, s., Methodološka infrastructura slovenskega jezika, primer kritične analize medijskega diskurza, (k AD), Faculty of Humanities koper, symposium, p. 52. 3 t he dissertation examines the influence of European culture on gender politics in t urkey, but the introductory part, in which the methodology is presented, with reference to extensive literature, is devoted to the general characteristics of the discourse. t hat is why this paper refers to it to such an extent. 14 DIGNITAS n Theory of Law they must also consider findings from related fields to address common and contentious issues, each within its own context and in relation to others. t he interdisciplinary and transdiscipli- nary nature of discourse theory introduces a new theoretical and analytical paradigm that breaks down the boundaries between philosophy, linguistics, and various social disciplines. Habermas refers to this theory as the ‚theory of communicative action‘ (The- orie des kommunikativen Handelns) and sees it as the founda- tion of all social sciences (Grundlegung der Sozialwissenschaft). (Habermas, 2019, pp. 11). Indeed, the theory of discourse poses as its fundamental ques- tion, under what conditions the meaning of social phenomena can become subjectively understood, social reality, and on what knowledge rules, statements, ideas, beliefs, values, norms, practic- es and procedures is based (berger and Luckmann, 1988, pp. 11- 13 and 23). It refers to the question what kind of knowledge can become socially recognized as a measure of social reality (berger and Luckmann, 1988, p. 25). t his provides significance to social phenomena that are shaped by cultural mediation in the form of a semantic scheme, structure or context. t hese elements deter- mine which statements are deemed relevant in the discourse, and how social phenomena are perceived and interpreted in order to make judgments. t he presence of certain assumptions allows for the assertion of their existence and, subsequently, the determina- tion of their social significance. 1.1. About the research methodology t he research starts from the point of view that the reality of so- cial life is primarily political constructed, and the truth about it the result of ideological struggles that produce knowledge and thus power. Legal institutes are the original expression of political deci- sions, because only then do they take legal form. Modern law refers to the democratic principle of the protection of fundamental rights, which is expressed as the principle of discursiveness (Habermas, 1996, pp. 253-267), which is watched over by both politics and law representing a discursive environment for each other. both are not always in a relationship of constant mutual coordination due to the dynamics of social life. t he first is implemented on an ideo- logical basis, the second is embedded in the structure of its norma- 15 DIGNITAS n On the discursive nature of Law tive system, which is translated by the ideology of democratic law. sometimes they complement each other and accelerate the devel- opment of legal culture 4 with human rights as its central element (Igličar, 2012, p. 220). both also change according to changes in social needs and according to the attitude towards important, and therefore also criminally protected, social values. In this way a true democratic society is protected from political deviations. It is quite paradoxical that they most often diverge precisely because of the question of how to protect it. If the law and its discretionary power are strengthened, the idea of democracy and the rule of law are also strengthened. When the law is undermined due to excessive political activism, democracy is weakened and becomes vulnerable to the gradual, covert emergence of authoritarian power within the society. 5 In such a contradictory relationship between them, the constitutional court is a hybrid of authorities, responsible for the original (discursive) reminder of hitherto unarticulated contradic- tions of certain social interests (Zupančič, 1998, p. 211). t herefore, the research concerns not only the relationship of law to political ideology, but the very essence of its own ideological nature, which also affects its understanding (Igličar and Štajnpihar, 2020, p. 283 and 244). Political behavior cannot be understood without understand- ing the role of ideas that political actors have in the social construc- tion of reality (Šumič r iha, 1995, p. 32). Without such a meaning, it is also not possible to understand any other behavior. Without the internalization of basic moral rules, values and legal norms, especially among the officials of the legislative, executive and judicial authorities, society disintegrates into an arithmetical sum of individuals (Igličar, 2012, p. 220). t his means that, above all, jurisprudence must be aware of the influence of the structure of 4 Habermas presented the philosophy of modernity from the most influential philosophers (Hegel, k ant) to the postmodernists, who had a significant influence on the theory of communicative action, thus showing that subjectivity, robbed of any substantiality, represents empty activism and that the ac- tors who speak, listen and act must have an attitude towards morality, i.e. socially established values. 5 „Law with its normative system“, as stated by c erar, „is the form through which politics is enforced. As such, it represents an independent value or ideological phenomenon that must establish a balance vis-à-vis politics in a democratic society, which must be maintained at all times in the relationship between its static and dynamism, if excessive legal conservatism prevails, this results in excessive rigidity of the law and inhibition development, but if its development prevails, then it can fall into arbitrariness. In the final instance, both in politics and in law, the decisive human factor prevails. t herefore, the prevention of inadmissible legal arbitrariness and the intrusion of politics into law depends to a crucial extent on all those who are the bearers of legal or political decisions. t heir acceptability depends on the discourse and its structure, within which the controversy about some socially important issue takes place“ (c erar, 2001c, pp. 15-21. 16 DIGNITAS n Theory of Law procedural discourse on the discursive way of thinking and thus on the judicial decision-making process itself. Legal judgment, as a specific way of legal thinking, means an informed cognitive process of legally important facts. t herefore, it presupposes the necessity of one‘s own awareness (reflection) rather than self- awareness (auto-reflection). (cerar, 2001a, p. 107). Understand- ing in law is not objective and not entirely subjective either, but is directed, reflexive, and situational (k aufmann, 1994, p. 240). Ever since Aristotle, it has been held that in every good legal argument three of its fundamental elements must be intertwined, name- ly: logic (logos), ethics (ethos) and emotions (pathos) (visković, 1989, pp. 24-25). t he latter refers to such a category, which also includes legal sense as a complementary component of modern law (c erar, 1999, p. 27) and therefore as material source of law. For authentic and correct law (richtiges Recht) it is not only nec- essary to be aware of it, but also to feel it. When such a feeling is not present, the content of the subject of discourse is lost, and in the field of law, the meaning of the legal order is lost, because the law becomes unreliable and unpredictable and increasingly turns into (dis)order (Igličar, 2012, pp. 219-220). t he crucial ques- tion regarding the effectiveness and validity of law concerns its conceptual foundations, which serve as the basis for recognizing what constitutes true law. t his makes it a subject of study for discursive theory, given its complexity and elusiveness. t o fully understand the nature of law, one must consider all its dimen- sions and effects on both the objects and subjects of discourse, particularly within the context of legal proceedings. Discursive theory addresses this complex phenomenon through a series of concepts, including discourse, discourse structure, discursive thinking, discursive practice, analytical discourse, discourse analy- sis, discursive objects, discursive subjects, ideology and discourse, discursive dislocation, and truth as a normative and discursive category. t his paper aims to present and analyze these concepts, along with their ideological and philosophical foundations, with- in the context of the research mentioned above. 1.2. t he ideological and philosophical basis of the research Although the research does not explicitly state it, it is evident from the analysis that the ideology of judges and the discur- 17 DIGNITAS n On the discursive nature of Law siveness of their way of thinking are based on the conceptual foundations of structuralism and social constructivism. t hese two theories are among the most significant ones of the second half of the 20th century, and they serve as the meta-theoretical background of discursive theory in the context under consid- eration. structuralism introduced the linguistic analysis of social phenomena by considering them as objective structures of se- mantic signs. Its focus was on the actual use of language and the psychological, sociological, and historical origins and circum- stances that affect the concrete use of language signs, sentences, and discourse (stres, 2018, pp. 847-848). Using the method of intercontextual treatment of social phenomena, F. de saussure introduced into the analysis of social phenomena: semiotics as a science of signs and the relationship between the signifier and the signified, which in dependence on each other retain their meaning only in this dependence and connection; semantics, which explains the meaning of individual words, and pragmat- ics, which, in addition to these two branches of the philosophy of language and linguistics, is the third most important branch in this field. Pragmatics (Gr. pragma, correct behavior) studies the use of language in relation to concrete circumstances that affect the meaning and sense of a certain statement and creates an intercontextual basis for an empirical approach to the theory of communication from the perspective of psychoanalysis, logic, and philosophy. 6 In the structure of language, each component has its own meaning and role, which none of the other parts has, even though they are all functionally connected. From a linguistic point of view, a word is the product of a reciprocal relationship between the speaker and the listener, between the communicator and the addressee, and the utterance is under- stood as the result of an individual action that is given meaning in the context of certain social interactions. As such, it is an ex- pression of the inner experience of an individual. based on this conceptual design, structuralism creates the conditions for un- derstanding social phenomena, their structures, discourses and identities. such social phenomena, in which the characteristics just mentioned come to the fore, include especially such legal phenomena as represented by a criminal act. 6 Pragmatism, in the sense of everyday language, is synonymous with the attitude of someone who adapts to circumstances and knows how to use them to his advantage (stres, 2018, p. 678). 18 DIGNITAS n Theory of Law 1.3. Legal language Law is a linguistic phenomenon. t herefore, language is the core of legal discourse and legal terminology (Pavčnik, 2019, pp. 330- 345). t he language of law is by its very nature ideological because it is determined by a system of professional norms that enable at least the relative objectivity of law (v ezovnik, 2009, pp. 38-40). . As a specific subsystem of language, legal language is expressed on several of its levels, namely as: 1. the discourse of the legislator, as the speech of the creator of general legal norms; 2. the discourse of legal science from a dogmatic and theoretical point of view and 3. the discourse of judicial practice as a discursive practice (v isković, 1989, p. 40). In legal theory, the question of which speech should represent the criterion of legality. For natural law doctrine it is the discourse of legal science, for legal positivism it is the discourse of the legislator, and for legal realism it is the discourse of jurispru- dence. t he study of law is also approached from the standpoint of social relations, which are the source of legal norms, social values, which are reflected in legal norms and from the point of view of studying legal norms as a special technique - nomotechnics, the so- cial meaning of which is evaluated with sanctions as a way of their enforcement and protection. According to such a classification, law is perceived in three ways, namely: 1. relational, 2. value-based and 3. normative. t he relational method belongs to the field of sociol- ogy of law, the value method belongs to the philosophy of law, and the normative method is the subject of legal theory. While the legal language is the most solid guarantee of the objectivity of the law, the notion of values is the one that has the strongest irrational, ideological and philosophical charge as a philosophical category, in which the legal feeling as a material source of law is based. All these approaches are still characteristic of postmodern law. t heir importance lies in opposing scientism, positivism and mechanistic materialism in law. t herefore, legal language is of key importance for understanding discourse and the effects of discursive thinking, for the very nature of law and thus also the relationship between its objective and subjective conception. t his is a condition for shak- ing the myth of the pure objectivity of the law and its positivism, based on the belief that the judge derives his or her decision only by interpreting legal provisions (bergoč, 2009, pp. 51-52). 19 DIGNITAS n On the discursive nature of Law 1.4. social constructivism and discursive theory based on the findings of structuralism, social constructivism (Latin constructio, composition, classification, construction) de- veloped and became characteristic of many modern philosophi- cal and scientific theories. Its specialty is that it is not limited to what is known, but how it is known and thought, and in what context the idea of social reality or the reality of its manifestations is created (Frank, 2013, p. 50). t herefore, even for truth itself, the harmony between thought and the object of thought is no longer important, as assumed by the correspondence theory of truth. Instead, for social constructivism, only the correctness of think- ing is essential. social constructivism is based on the premise that social reality is a construction and emphasizes the importance of the role of ideas, beliefs, and values, requiring a critical approach to knowledge. t he material world is not given to us directly but is only accessible to us through language or a system of repre- sentations that construct the meaning of social phenomena. In other words, we only perceive it through interpretation. t here- fore, both structuralism and social constructivism highlight the importance of a critical approach to knowledge and an under- standing of their (non)existence, as their interpretation depends on knowledge. k nowledge is not only created on a rational basis but is also influenced by an individual‘s physiological and emo- tional characteristics, as well as their placement in a certain so- cial environment. t herefore, social constructivism is interested not only in scientific or academic knowledge but also in human knowledge, which guides individuals in their daily lives in soci- ety, including prejudices, which are essentially micro-ideologies of our daily life. k nowledge about social phenomena, or knowl- edge about them, depends on social processes and social action, which determine which categories of knowledge are „right“ and which are „wrong.“ c ourt proceedings are initiated to clarify who has more rational arguments in a dispute. t hey differ from each other in terms of factual and legal issues, and their autonomy and exclusivity are emphasized by the fact that only the statements of the fundamental procedural subjects, such as courts and par- ties, can be relevant. Discourses that take place alongside judi- cial discourse have no legal effects. t his divergence in discourse structures explains different views, not only on the process of 20 DIGNITAS n Theory of Law judicial decision-making but also on differences in understand- ing and contextual conception of the same subject on which the discourse takes place. Discursive theory has gained ground as a way of analyzing public, typed, institutionalized, legally regulated procedures and therefore controlled discourses (berger and Luckmann, 1988, pp. 56-58), which are studied from the perspective of their norma- tive structure or context, in which these discourses are created (vezovnik, 2009, pp. 12-14). Discursive theory represents social constructivism in the narrower sense of the word, namely as a theory within various social science disciplines. Among these is also the law that is famous especially through its well-regulated judicial procedures, which justify its legitimacy through expla- nation and defense (berger and Luckmann, 1988, p. 63). Due to their autonomy, they differ from each other in the normative structure on the basis of which the court assesses the relevance of the procedural statements of both parties on factual and legal is- sues. All three fundamental procedural subjects, with their proce- dural actions, which they perform with their statements, influence the beginning, duration and end of the legal proceedings (Frank, 2013, p. 50). t he emphasis on the discursiveness of the concept of a criminal act in the context under consideration is mainly because it can be assumed that the ideological and philosophical “cliché” of criminal law in particular is more pronounced than it is in other legal areas (Pavčnik, 2019, p. 31), because criminal law is public law and in view of such its nature a tangible instrument of power, tied to knowledge. t he foundation of power is knowledge, that is, the willingness to learn the truth about a social phenomenon that is subject to authoritative judgment (Flander, 2012, pp. 157-158 and 214-226). t herefore, every authority is inseparably bound to truth as an ethical category. by referring to it, it justifies moral justification. t hat is why the judicial authority is so closely tied to the truth, and especially the judicial authority, which is exercised in crimi- nal proceedings, in which it assesses the question of which state- ments can be accepted as true. t his function of authority comes to the fore precisely in the field of criminal procedural law more than in any other legal field. t he issue of evidence, especially the determination of a criminal act, raises the question of which legal rules should enforce the attitude of the authorities in order 21 DIGNITAS n On the discursive nature of Law to produce a discourse of truth about the existence of legally im- portant facts, or what type of authority is capable of producing a discourse of truth in a certain judicial procedure and according to which rules (Foucault, 2008, pp. 12-13, 111-142). t herefore, one cannot do without the truth in either philosophy or social science (Hribar, 1961, p. 165), and therefore not even in criminal law. t he findings of the discursive theory, transferred to individual legal fields, reveal the way in which the normative structure of proce- dural discourse with its system of coercive regulations affects not only the relevance of procedural statements and the construction of basic assumptions for deciding on a disputed matter, but also the identity of the discursive objects themselves and subjects. As a modern way of thinking, social constructivism directs its focus on the way in which a person or a society forms its concepts and meanings in its cognition, knowledge and thinking. Unlike the empirical sciences, the study of social phenomena is character- ized by the fact that they are not given to us substantially, directly and in the future as physical objects in the ontological sense of the word, but rather represent primarily a value, normative cat- egory. A criminal act can also be understood in this sense. 1.5. social phenomena as a cognitive problem From an ontological point of view, social phenomena repre- sent a real social phenomenon in the external world and as such a value-neutral category. Every legal phenomenon is, from a sub- stantive legal point of view, a system of normative assumptions in abstracto and at the same time a highly developed scientific concept, especially if we have in mind the general concept of a criminal act, to which each specific and individual concept of a criminal act must correspond. As such, in relation to any particu- lar concept of crime, it is an abstraction of an abstraction. From a procedural point of view, it represents an event from the past, which in the process of its determination must be clarified us- ing the method of retrograde analysis to such an extent that it is possible to reliably conclude whether all the circumstances exist to which the substantive and procedural law binds their conse- quences. In such a procedure, Habermas‘ definition applies that in law discourse is an intermediary, a mediator between facts and norms on the one hand and norms and values on the other 22 DIGNITAS n Theory of Law (berger and Luckmann, 1988, p. 63). t herefore, in the context of this paper, the focus is on the crime as a procedural, institutional- ized, typified and controlled public discourse, which represents a special cognitive problem in the sense mentioned above (Škerlep, 2001, pp. 543-559). t hese phenomena are characterized by the fact that they do not have their own „essences“, their prior meaning, because their meaning is not given to us in advance and directly, but is ac- quired only in discursive practice, that is to say subsequently. Ac- cording to such a conception, empirical reality is not inherently meaningful, but rather acquires meaning through the process of interpretation and construction that is influenced by social factors and knowledge. t his construction involves both a priori compo- nents (such as pre-existing beliefs and values) and posterior com- ponents (such as later analytical knowledge about the existence of some socially important phenomenon) (Nastran Ule, 2000, pp. 63-66, 363 and 401). t herefore, the subject of legal evaluation is not substance, but only relations according to which the legal sig- nificance of the event in question should be determined. social reality and the way it is discursively constructed have an impact on the perception and understanding of social phenomena. It is not that a „lost object“ exists in a pre-determined way that can be found as it was lost, but rather its reality is constructed through the process of argumentation in court proceedings, according to the normative structure of the discourse in that particular context (k aufmann, 1994, p. 239). t herefore, the key question is what is the status of being or the reality of the social world created by the discourse (Šumič r iha, 1995, pp. 7-9). An answer can be given from the standpoint of social constructivism in a way that summa- rizes four fundamental premises. t hese explain the key problem of the perception of such social phenomena as legally significant facts. From a cognitive point of view, they are characterized by the following: 1. t hey exist independently of our interpretations, but this af- fects their perception and justification of their existence. 2. structures do not determine, but encourage and limit the perception of social phenomena and in this way enable action, while reflective actors interpret structures and change them. 3. science and knowledge about social reality are fallible and under the influence of theories as frameworks through which we 23 DIGNITAS n On the discursive nature of Law learn about such reality. 4. social changes are the result of changes in structures as a result of changes in discourses that change historically, within which the possibility of acting and influencing it and its changes is given (Frank, 2013, p. 57). t hese four premises explain the key problem of judging such events, which should correspond to certain legal concepts. t here- fore, the judicial procedure is the field in which legal phenomena come to expression in an illustrative way as a normative and dis- cursive category (Habermas, 1996, pp. 8-9). 7 so, from this point of view one might ask the question in what sense the insights of structuralism and social constructivism complement the under- standing of legal phenomena. before we limit our attention to the fundamental features of discourse theory, let‘s first look at some interesting thoughts of the American judge Posner about how, according to his idea, American judges should think about their legal reasoning. both the research on ideology in the courts and Posner‘s monography concern the same question, namely how the subjective characteristics of judges, including their ideo- logical profile, affect their judicial decisions. both studies reveal the essential characteristics of law as a normative and discursive category. 2. Judicial thinking and discourse theory r ichard A. Posner, a member of the Us court of Appeals, analyzes the way judges think in his monography „How Judg- es t hink“. His work is interesting because, like the research on ideology in the courts, it refers to the subjectivist aspect of the conception of law. Indeed, Posner revealed a series of charac- teristics of legal discourse, without explicitly mentioning this concept and analyzing it in more detail. In the introduction to his extensive study, he wrote that there is a popular belief that judges rule the nation more than the law itself. t herefore, it is not clear what law is. According to Posner, the secrecy of the judges‘ deliberations is „an example of professional mystifica- tion“ (Posner, 2010, p. 3). Professions like law and medicine pro- vide vital services to society, but their work can be difficult for 7 Habermas defines law as a social mediator between facts and norms, and that it therefore has its own tension between reality and validity, which is the driving force of its development. 24 DIGNITAS n Theory of Law outsiders to objectively understand and evaluate. t his is particu- larly true when considering that intuition, judges‘ mentality, and their political identity all play a significant role in judicial discre- tion. In the United states, for example, these factors are further complicated by the ideological conflict between Democrats and r epublicans. A conservative judge may not even consider how a politician like bush would rule in a given case and genuine- ly believe that their decisions are not influenced in the slight- est by their political beliefs or by either of the two dominant political ideologies (Posner, 2010, p. 369). such a widespread belief, however, contradicts the evidence of bayes‘ theorem. t his shows that judges‘ decisions are often influenced by their resistance, subconscious experiences and prejudices (Posner, 2010, pp. 11-12). In particular, judges who decide in uncertainty do not decide gradually, that is, from premise to premise, but resort to pragmatism. Pragmatism in the judiciary, however, is at odds with trust in the law. According to Posner, judges are aware of this. t herefore, they take advantage of the public‘s lack of interest and ignorance of the law, and thus also igno- rance of the secrets of the judicial profession, with which they deceive even their fellow lawyers, professors and lawyers who were not judges. With such exaggerations, judges mystify their professional abilities because, like doctors, such mystification of their profession suits them. It allows them to maintain their privileged status. At the same time, they are also aware that they must overcome the lay public‘s distrust of the judiciary. t here- fore, they believe that with esoteric means and techniques, they could self-critically build a doctrine that should convince many and even themselves that they are not arbitrary, politically de- pendent or ignorant of the demands made by the law. based on Posner‘s views on the freedom of judicial decision-making and the potential influence of personal beliefs and values, he ques- tions the limits of this freedom and how it can be limited to up- hold the rule of law and ensure objectivity in judicial decisions. His metaphors and reflections on how judges think have drawn criticism from some individuals (Green, 2010, pp. 464-466). In his critical response to Posner‘s thoughts, law professor c . Green responded with a rhetorical question: Do judges actually think this way, or is it only Posner himself who thinks about how judges think? t hat is why he wonders „is Posner a hero or a her- 25 DIGNITAS n On the discursive nature of Law etic“. Despite Green‘s criticism, such Posner‘s thoughts are not without theoretical and practical basis. t his is especially true if it is taken into account that the progressive development of law takes place in accordance with the creation of judicial law, which is deeply rooted in the legal tradition of Anglo-American proce- dural law (well entrenched and necessary part of legal tradition). 8 In Anglo-American law the judicial decision-making process is less restricted by legal formalism (judicial law-making) than it is in continental law. t herefore, Posner is by no means alone in this way of thinking (Dworkin, 2003, pp. 392 and 413). A similar thought was already expressed by Dworkin with his judicial Her- cules, as a parable. He illustrated the great intellectual effort of a judge, who in difficult cases (hard cases) , especially in disputes between the state and citizens, has to formulate his own political theory, that he can judge how the constitution protects some so- cial relationship when it comes to a conflict between individual and wider social interest. Posner‘s thinking about the thinking of judges asks as the first question what the doctrine should be, which should demystify the function of the judge and create confidence in his or her decisions and thereby strengthen the reputation of the judiciary in the wid- er society. such a doctrine, as the American judges are supposed to „build“, does not have to be invented, because it already exists, and Posner indicates its fundamental elements clearly enough. In Posner‘s analysis, a „neurotic“ problem is recognized, which is created by process discourse, which is the subject of study in discourse theory. Posner ‚s esotericism of judicial thinking corre- sponds to the exclusivity of discursive practice. Even discourse is not without its own mimicry, because it „pretends“ to merely es- tablish something, while at the same time concealing the fact that by assigning meaning to the object of discourse, it is essentially constructing or creating it in this way. Posner is therefore neither a hero nor a heretic, but rather an apologist for the nature of law, which is otherwise always expected to ensure the objectivity, re- liability and predictability of judicial decisions regardless of the pluralism of social interests and their conflict. With such thoughts as those presented by Judge Posner, a rhetorical question arises: so what is in a crisis? Is there law in crisis or is the crisis of law es- 8 For example, in the decisions of the c onstitutional c ourt of c roatia UI-448/2009, UI-602/2009, UI- 1710/2009, UI-18153/2009, UI-5813/2010 and UI-2871/11, 19.5. 2012. 26 DIGNITAS n Theory of Law sentially a crisis of its (mis)understanding? 9 t herefore, in the fol- lowing, the paper deals with the conceptual philosophical basis of the discursive theory, which explains the methodology of law in general, and thus also the methodology of judging a criminal act as a normative and discursive phenomenon in the context of the discursive theory. 3. Basic notions of discursive theories t he insights of discursive theory are also important for le- gal theory. t hey confirm its fundamental premise, according to which law is not only used in judicial practice but also created by it (Pavčnik, 2019, pp. 27-33). According to this theory, discourse is understood in accordance with the legal model, which presup- poses the presence of a judge (Šimič r iha, 1995, p. 34)- t he obli- gation to respect the law arises in the most obvious way precisely at the level of the judge, who is assumed to know the law and therefore to respect it. t he judge recognizes the rules for rec- ognizing the ‘correct’ law (recognition norms, (Hart, 1994, pp. 91-98) normative Aussage (Alexy, 1996, p. 39)). t he fragmented nature of the law requires a procedure that involves a logical and systematic search for premises, their formation or adaptation to the structure of the procedural discourse, and their use for rea- soned decision-making on the existence of a criminal act. t his is what constitutes a judge, as he or she respects the normative structure of the procedural discourse (Šumič r iha and r iha, 1993, p. 56). Only criteria for recognizing the legality of a certain law can declare it as authentic law, as the law can only be expressed in each specific case. However, these rules alone do not guaran- tee the legality or appropriateness of the procedural discourse. t hey require the judge to act according to them and interpret them appropriately based on the specifics of the case under con- sideration, where the contact between the factual and the legal comes to its most direct expression. Laws are formed not only by legal norms, which are the result of legal evaluation, but also by normative statements of process participants. Each statement in discourse is a response to previous statements and is connected to the common field of communication created and directed in 9 On the crisis of law, see e.g. Flander, 2012. 27 DIGNITAS n On the discursive nature of Law a specific context that defines a concrete speech situation. t hus, only the procedural statements of the court and the parties give the event in question legal meaning. In the decision-making pro- cess, the judge must not only imply the norms but also adequately explain, express, and justify them. t his raises the question of how the judge recognizes the rules for recognition of law and accord- ing to what rules they do so. t he discursive model (Diskursmodell) , which was developed by procedural theories of law, occupies a special place among the various models of judicial procedure. such a model is distin- guished by discursive ethics (Diskursetik) (kaufmann, 1997, p. 272). 10 court proceedings according to this model are not only ethical because they emphasize justice as the possibility of both parties to influence the outcome to the same extent with their statements. t hey are ethical above all because they do not con- ceal that procedural content does not come only from its norma- tive structure in accordance with its incentives and limitations, but also depends on the normative and discursive nature of so- cial phenomena, which are considered as important facts in judi- cial practice (kaufmann, 1994, pp. 277-282). such a conception, however, goes beyond the anachronistic, positivist conception of law, according to which the judge derives his decision directly from the law. In this way, discourse theory affirms the function of the judge as a measure of legality (Šumič r iha and r iha, 1993, p. 89). t his explains how the internalized, compulsive logic of the normative structure of the process discourse shapes its sub- jects as actors. t he involvement of judges‘ thinking in this pro- cess determines how they perceive discursive objects, giving their discursive thinking a transpersonal and therefore more objec- tive meaning. based on the insights of this theory, the reasons for divergences between different discourses, such as political, media, legal, moral, ethical or philosophical views on the same topic, become clearer. Public discourses are often the subject of discursive analysis for this reason (Škerlep, 2001, pp. 153-169). Discursiveness, which discourse theory deals with, is a complex phenomenon that is translated by a series of concepts such as: 1. discourse; 2. structure; 3. discursive thinking; 4. discursive prac- tice; 5. analytical discourse; 6 discourse analysis; 7. discursive ob- 10 t he concept of discursive ethics began to be developed by Habermas in the 1980s, and this is the key to understanding the political public. 28 DIGNITAS n Theory of Law jects; 8. discursive subjects; 9. ideology and discourse; 10. discur- sive displacement and 11. concept of truth itself. 3.1. c oncept of discourse Discourse is a process of intersubjective communication for the production of social meanings as negotiated categories. As such, it is not merely a synonym for strictly rational, logically correct, and step-by-step systematic treatment of a certain topic, consisting of certain knowledge based on evidence and logical conclusions that refer to an assessment of the meaning of the object that represents the topic of the discourse (stres, 2018, pp. 847-848). Only the participants in the process of argumentation about the existence of legally significant facts give such discourse content and thus the topic for which the discourse is established. Due to its creativity, discourse is placed in the role of „creator“, revealing how subjects understand objects (Frank, 2013, p. 61). Even if the material existence of a certain social phenomenon is not disputed, its social meaning may be.(Lukšič and kurnik, 2000, pp. 169-171). Only the price of the reality of the existence of socially important facts implies the reality of what is happen- ing in the discourse itself. In law, discourse mediates between facts and norms on the one hand and norms and social values on the other, thus representing a special type of normative integra- tion (Habermas, 1996, p. 226). From the perspective of rational argumentation, discourse is a mechanism for the constant (re) production of conflicts and for directing aggressiveness towards ever-new „targets“ or discursive objects and subjects (Šumič r iha and r iha, 1993, p. 33). social reality is constructed, and the truth about it is the result of ideological struggles that produce knowl- edge to which power aspires. According to Foucault, power can- not be exercised other than through a specific way of producing truth, regardless of the social system in question (Foucault, 2008, p. 136). In democratic discourse, argumentation is a strategy for overcoming conflicts in a non-violent way (Šumič r iha and r iha, 1993, p. 32). thereby replacing physical force with the force of logic or representing an alternative to it (Zupančič, 1990, p. 121). Discourse is further characterized by the fact that it does not have a substantial, real object given to it in the ontological sense of the word a priori, but must be determined only in the discourse, i.e. 29 DIGNITAS n On the discursive nature of Law a posteriori. Even discourse itself does not have an ontological status because it does not have a fixed identity, essentially being a concept. It is the historical specificity of a certain discourse that proves that these are not permanent but change depending on the cir- cumstances. t hus, for example, a dominant, hegemonic discourse at a given moment is considered as such because it produces ap- propriate discursive effects at a certain time. However, it is domi- nant only as long as it is not displaced by a superior discourse, which thereby assumes a hegemonic position. t herefore, only such a discourse can be a guarantee of legality. It is the emphasis on the historical specificity of a certain discourse that testifies to the fact that discourses are not constant but change depending on the circumstances. Procedural discourse determines which in- terpretations have a legitimate basis. t he principle of democracy recognizes only those norms that require recognition of their uni- versal legitimacy (Škerlep, 2002, p. 159) It is characteristic of each discourse that it is embedded in a structure as a system of rules that determine which statements justify a certain meaning and by which it is distinguished from other discourses (v alčič, 1989, pp. 121-122). What will be the result of the discursive discussion, or the assessment of factual and legal issues, depends on the nor- mative structure of the procedural discourse and on the way in which its participants use it and adapt it to their strategic interests. t he discourse plays a crucial role in forging a social bond by determining its findings based on the possibility of achieving so- cial consensus. t his allows for the homogenization of attitudes and the promotion of consensus within the social community. t he guarantee of legality is based on rational, discursive discus- sions about the existence of legally significant facts. t he diver- gence in discourse structures can explain different views not only on the process of judicial syllogism but also on other topics. struc- tural and cultural conditioning refers to the pre-existing temporal and spatial conditions that have formed over time as a result of previous structural-cultural interactions. k nowledge of discursive theory can reveal how the normative structure of procedural dis- course affects not only the procedural statements decisive for its beginning, duration, and end but also the constitution of the identity of its objects and subjects. In legal evaluation, the subject is not the substance itself but rather the relationships and rules 30 DIGNITAS n Theory of Law that are used to attribute meaning to a particular event. As such, we can only recognize the real relevant reality based on discur- sive thinking. 3. 2. Discursive thinking t hinking is a human conscious, mental activity. It presupposes conscious experiencing, remembering, attention, reasoning, judg- ing, supposing, asserting, denying, asserting. such thinking refers to facts, values and truths and is coordinated with logic, the cor- rect understanding of concepts and with the ability of reasoning and judgement. It always refers to thinking that some fact, which is perceived as a sensory change in the external world, exists or does not exist and that it can be valued in one way or another. With such a generalized definition of the concept of thinking, the question arises as to what kind of thinking is discursive thinking, which is supposed to „strengthen legal argumentation“. Unlike intuitive thinking, which is based on immediacy of understand- ing and insight, discursive thinking is distinctly rational. From the point of view of hermeneutics as the interpretation of texts, such discursiveness is an integral part of knowledge based on thinking. We speak of the discursive way of thinking when it represents a successive, gradual, logical process of reasoning from one logi- cal element to another, and in this way gradually builds a certain rounded normative, i.e. value system, from individual parts. t he translation from the Latin discursus also corresponds to this way of thinking, which means „to flow around“ as a synonym for a systematic dispersion of elements, which, with the final connec- tion and derivation of one statement from another, completes a logical whole (stres, 2018, p. 172). t hat is why discourse is often equated with argumentation, but discourse is not just argumenta- tion. In relation to discourse, argumentation (argumentatio) is proof, substantiation, implementation of a proof, giving reasons for certain claims supported by proof (sruk, 1980, p. 34). Argu- mentation is giving reasons for certain claims. t hrough argumen- tation its actors exploit the normative structure of the discourse and adapt it to their strategic interests. t he nature of controversial issues depends on how much argumentation the participants of the discourse need in order for the discourse to establish itself with its own knowledge and to raise its authority by referring to 31 DIGNITAS n On the discursive nature of Law the truth (v elčič, 1989, p. 124). t hrough argumentation discourse resolves its internal contradictions (Lukšič and k urnik, 2000, pp. 169-171) in order to resolve the dispute due to the conflict be- tween antagonisms, which originate not only from the nature of the disputed issues, but also from the contradictory nature of the law itself (v elčič, 1989, p. 121). Judging is a practical science, the purpose of which is the argu- mentative justification of decisions. It is characteristic of law that its normative system is scattered in the multitude of its practices, in which it searches for its fundamental organizational principle (Šumič r iha and r iha, 1993, p. 33) and produces a joint decision or, through normative integration, a community (Igličar, 2012, p. 213). For this purpose, at its applicative level, law must bridge the antinomy between its many contradictions, which originate from its very nature. Law claims universality, but at the level of its appli- cation it is reduced to particularity. Although it refers to objectiv- ity, in practice it also narrows down to subjectivity. t orn between the social and the individual, between law and right, between the rational and the irrational it must discover its coherence. Further- more, the contradiction also lies in the fact that legal norms are abstract, but the real-life example is concrete, legal norms are gen- eral, the event in question is specific. Legal norms are simplified due to their abstractness, the real-life example is complex; legal norms are static, the particular case is dynamic. All these oppo- sites require a synthesis. A judicial procedure such as a criminal procedure is also characterized by the fact that it is involved in a contradictory relationship between its protective and guaran- tee function. Its dynamism is fueled by argumentative pressure, which also requires the court to evaluate contradictory evidence and statements in a non-contradictory way in order to justify its decision. t hese opposites, however, can only be bridged by syl- logism, that is a way of debating with reasoning and subsumption, by which the concrete is subordinated to the abstract, the indi- vidual to the general, and partial to the universal. In the process of legal evaluation, the perception of the norm determines the perception of facts, and the perception of facts determines the ad- equate combination of the above premise of the legal syllogism. A premise is a logical assumption before a conclusion as its basis, from which the corresponding conclusion follows (stres, 2018, p. 696). If this is acceptable, the criteria for judging reality of legally 32 DIGNITAS n Theory of Law significant facts are also acceptable. What will be the outcome of the discussion, or the assessment of legal and factual issues de- pends on the weight of the arguments of the parties and the way the court assesses them. Each discourse is a historically specific system of meanings that shapes the identities of participants and topics (vezovnik, 2009, p. 3; berger and Luckmann, 1988, pp. 29, 122 and 160-169). Discursive thinking is characterized by the fact that it is based on practice, because the discursive rationality characteristic of judicial judgment is not only based on judging the quality of arguments, but also depends on the structure of the argumentation process itself (Habermas, 1996, p. 226) 3.3. t he structure of (judicial) discourse In order for discourse to achieve its political and legal effects and resolve disputes arising from conflicting positions based on incompatible premises and a joint decision (Šumič r iha and r iha, 1993, p. 33), or to institutionalize fundamental values through normative integration and produce a community (Igličar, 2012, p. 213). the normative structure that determines the rules by which it is judged which statements can be legally recognized as accept- able, and the asserted facts accepted as true, must be adequate. t he structure, as a system of rules that determines which state- ments in the discourse are relevant, reduces (over)complex real- ity to only those essential parts that are the subject of discourse, namely, the facts to which the structure of the discourse assigns relevant meaning. t he more complex the subject of the discourse, the more one-sided ideas it imposes. t herefore, such a social phe- nomenon, as represented by a criminal act, quite often leads to hasty conclusions that its actual state is given, even if all the (legal) assumptions for its existence are not fulfilled. c ourt proceedings are famous for their high level of reduction of reality because they „absorb“ only those aspects of extra-cursive reality that are important for such a decision, which should become the subject of impartial approval (Igličar and Štajnpifler, 2020, p. 179). t he process of checking the arguments of discursive subjects takes place through the process of subsumption and syllogism. In the process of such logical reasoning, these are the supporting points in the structure of the process discourse, from which arguments are made, with which discursive contradictions are resolved and 33 DIGNITAS n On the discursive nature of Law through which the antinomy should be bridged. With their au- tonomy and normative regulation, judicial procedures reduce the complexity of everyday social relations in eight ways: 1) with their time-limited duration; 2) with their substantive differentia- tion (criminal, litigation, administrative, etc.); 3) that they begin, last, and end under certain legal conditions; 4) that they will have their own participants, process subjects, court, and clients; 5) that they will perform procedural actions with their statements and try to influence the outcome; 6) that the relevance of procedural statements will be judged from the standpoint of the normative structure of the procedural discourse, depending on the nature of the procedural object; 7) that the procedure will reliably end un- der certain conditions; and 8) that it is not known how it will end. t he legal order provides only a certain measure predictability, which is based on legal provisions, harmonized jurisprudence, and above all on a generally accepted sense of justice, which is shared by the legislature and the judiciary as key factors of legal- ity. t he structure of court proceedings is determined by a sys- tem of substantive and procedural legal norms that apply mu- tatis mutandis to each stage of the proceedings and influence the selection of statements and information from surrounding systems. It is characteristic of these norms that they apply to all similar discursive situations (Šumič r iha, 1989, p. 135). In a heter- algic, systemically centralized society, otherwise autonomous subsystems form the ideal sphere of its general culture, namely political, legal, economic, religious, ethical, and artistic, which are functionally connected to each other (Adam and Willke, 1996, p. 232). t herefore, they represent a discursive environment for each other. t he essence of their coexistence is that, as relatively independent areas, they define mutual boundaries and thus a structure for each other. t his structure both encourages and lim- its them, preventing their excessive one-sided understanding. In the field of discourse theory, such an environment is referred to as a structure or, more precisely, as a context. c ontext refers to the various elements that shape an individual‘s thinking and behav- ior, including processes, institutions, cultural practices, traditions, ideologies, and discourses, and depending on knowledge (Frank, 2013, p. 8). k nowledge is a dynamic and subjectively conditioned category that constantly develops, shaping our attitudes towards 34 DIGNITAS n Theory of Law reality and what we consider to be convincing evidence of social phenomena. While knowledge is powerful, it does not guaran- tee truth, which depends on our conceptual, linguistic, and inter- pretive abilities as constitutive elements of structure (Foucault, 2008, p. 136). Discourses that take place alongside judicial dis- course, such as media, political, philosophical, psychoanalytical discourse, etc., are tied to their own structure, and have no legal effects. t he concept of human rights serves as the philosophical basis for modern legal systems and is essential for the creation and application of laws. While language is a central component of any discourse, it is not limited solely to linguistic analysis. t he broader social structure, encompassing cultural practices and ide- als, also plays a critical role in shaping discourse. In order for discourse to achieve its political and legal effects and resolve disputes resulting from conflicts between antago- nistic positions rooted in incompatible premises, and to achieve consensus and normative integration, appropriate normative structures are necessary (Šumič r iha and r iha, 1993, p. 33). t hese structures determine the rules by which statements are judged to be legally acceptable and facts are accepted as true (Lukšič and k urnik, 2000, pp. 169-171). t hus, the relationship between actor and structure is inextricably linked. t he link between the norma- tive structure, the structure of discourse, and the discursive state- ments of its actors is created through discursive practice. 3.4. Discursive practice A practice becomes discursive when it gives priority to certain meanings, which are socially constructed and therefore subject to change as a result of discursive struggles. In these struggles, discursive subjects adapt the discourse to their strategic interests. In other words, discourse is a practice that operates as a system of statements that determines what can be said or thought, as well as who can speak and with what authority. t his practice represents a typical way of acting or declaring, which is characteristic of a certain discourse (Frank, 2013, pp. 58-59 and 68). For example, discourse takes place in criminal proceedings on legally signifi- cant facts and issues as a system of statements with which courts and parties perform procedural actions. Discourses are not only defined in linguistic terms, but also as social practices that mani- 35 DIGNITAS n On the discursive nature of Law fest themselves through structure as an institutionalized, socially established, typed mode or pattern of action. t hey can be recog- nized at the individual level or at the institutional level. At the indi- vidual level, discursive effects limit the actor‘s awareness of their actions and ways of interpreting the environment, as they are under the influence of the limitations of the material environment of social institutions, as well as the influence of discourse and the discursive environment that affects them through symbols, ideas, and meanings. t herefore, they are not completely autonomous in their awareness of their actions and ways of interpreting the world. 11 Discourses appear in practice on multiple levels, such as the macro level representing the wider social environment, and the micro level representing everyday practices and routines. One of the important effects of discourse is that its results are also manifested in the external, material sense in the form of certain perceptible consequences as changes in the external world as its products. t he effects of discourse are especially visible and felt in institutional practices, goals, routines, rules, and in the ways in which institutions interfere with life practice, including with such effects as interference with fundamental rights. t herefore, the structure of discourse determines what the subject is allowed and able to say in order to be successful with their statements. In legal jurisprudence, assessment is not merely the application of rules for adjudication, but also involves the constant explica- tion of those rules. In this creative effort, both parties apply ar- gumentative pressure to „force“ a favorable decision that aligns with their proposed facts and legal judgment. t he relationship between the actor and the structure is thus connected through practice, in which discursive objects and subjects are constituted. 3.5. c onstituting the identity of discursive objects Discursive practice shows how discursive subjects as actors understand the objects of discourse (Frank, 2013, p. 79). As previ- ously stated, discourse is manifested in the material world in the form of objects, for example norms, which arise as a result of dis- cursive results or the impact of discourse on the extra-discursive 11 Foucault described such an effect of discourse as the feeling that it is not the discourse itself, but some nameless voice behind it speaking about something that already exists as something prior. (Foucault, 2008, p. 7). t his thought could be supplemented with Lacan, namely that speech is the language of the subconscious. see Lacan, J., Govorim zidovom, studia humanitas, Ljubljana, 2019. 36 DIGNITAS n Theory of Law environment. such objects can only acquire criminal law signifi- cance as an object of discourse in criminal proceedings through a rational process of debating contested factual and legal issues. As a normative and discursive category, a procedural object is defined by its description, which is given by prosecutors as their value assessment of the event that is supposed to represent a certain criminal act. t hat is why such a description is crucial in ju- dicial practice (Horvat, 2004, p. 388). t he event in question is con- stituted as a criminal act only if it is asserted in a procedurally ac- ceptable manner that meets all the elements of criminality. When interpreting a combination of legal provisions that corresponds to the legal characteristics of the real-life case in question, no ab- stract legal norm is formed, which could be an „abstract object of proof „ in itself (vodinelič, 1985, pp. 994-1003). Only their legal interpretation of proven and properly assessed legally significant facts leads to the recognition of this type of behavior as defined by law as a specific crime. t he same applies to discursive subjects who also rely on a rational process of debating contested factual and legal issues to understand the objects of discourse. 3.6. c onstituting the identity of discursive subjects Discursive practice privileges only certain meanings, and these are politically constructed concepts, which always depend on the context and the nature of the object of dispute. t he structure and actors have a co-constitutive relationship (Frank, 2013, pp. 72-73). According to discursive theory, the object of discourse is not its substance, and neither is the discursive subject. t herefore, the sub- ject therefore does not possess the discourse, but the discourse constitutes its subjects and objects, in accordance with its struc- ture. Although the subjects are a product of the discourse, they are also active co-creators reproducing and even changing the discourse to adapt to their strategic interests. t hese structures are not fixed but depend on the temporal and spatial environment. t he fundamental procedural subjects of the criminal procedure, the court, and the parties, are established only in the procedural discourse, in accordance with their procedural role as a norma- tively formed expectation of certain conduct (Igličar, 2012, p. 61). t herefore, it is only the discourse that constitutes the position of a certain social actor as a discursive subject (v ezovnik, 2009, pp. 23 37 DIGNITAS n On the discursive nature of Law and 65). t he participants of the discourse can take their position only within the discourse, in which both their identity and the identity of the discursive object are constituted. t heir statements influence the beginning, course, and end of the discourse and thereby determine the meaning of its object. t he structure of the discourse affects the identity of the discur- sive objects and also has an influence on the identity of the dis- cursive subjects who are mentally embedded in it. t he structure of the discourse, with its compulsive logic, „imposes“ a transper- sonal, meta subjective, or more objective assessment of the mean- ing of the object of discourse on their judgment. In this sense, the discursive conception of law is at the „intersection“ of its objective and subjective conception (Avbelj et al, 2021, p. 58). t herefore, the research mentioned in the introduction rightly advocates „a shift from an objective to a discursive approach to law“ (Avbelj, 2021, pp. 299-302). For the theory of discourse, which deals with the issue of cognition, the discursive subject in itself loses its inde- pendent meaning due to its involvement in the discursive way of thinking, because this theory is limited primarily to the methodol- ogy of discourse (Habermas, 1975, p. 100). t he emphasis on the impact of the structure of the discourse, transferred to the field of law, is justified mainly because the trial is oriented in a contextual manner. Only the participants in the process of argumentation about the (non)existence of important facts give such a discourse content or „theme“ and thus its pro- cedural object as a normative category (Šumič r iha, 1995, p. 32). Just as discursive objects and discursive subjects do not have their own a priori ontological status, neither does the discourse itself. According to Foucault, meaning and knowledge are produced by discourses and not by subjects (Foucault, 2008, p. 36; Foucault, 2007, p. 249). In a discourse, the action of individuals can be con- scious or unconscious, but it always depends on the structure of the discourse, which promotes and limits it in accordance with the rules that form the structure. Namely, the structure affects the thinking and actions of discursive actors. Actors are influenced by discourses that determine thinking and its functioning, but at the same time they are reflexive, which means that they can act strategically and consciously influencing the course of events and changing the structure. Even though their activity is limited by the structure, it is also enabled because the influence of the struc- 38 DIGNITAS n Theory of Law ture is not absolutely dominant. It can give meaning to disputes and rebellions of discursive subjects, but they can change it by adapting it to their own interests. t he dialectical relationship be- tween the structure and the actor enables an understanding of the changes that are the result of the mutual influence of the subjects and the discursive practice. t his ultimately changes not only the identities of the subjects but also the structure itself (Frank, 2013, p. 71). t hrough discursive theory it is also possible to explain the changes in the legal system, which is transformed by judicial practice under the argumentative pressure of the participants in the judicial discourse. Argumentative pressure is also pressure on the structure, on its rules, which results in changing them ac- cording to the way in which they are interpreted by the discursive subjects. However, always in such a way that the foundations of the legal system are preserved. t his means that the subjects in the discourse are only constituted in their practice and language when they express themselves about the relationship between certain norms and values. 12 Norms and values are two sides of the same phenomenon, namely subjective identities (v erhaeghe, 2016, p. 41), which is consistent with the current structure of pro- cedural discourse. Identity is a way of self-positioning in wider social events (Nastran-Ule, 2000, pp. 189-190,217-224 and 276) It is always about ethics, just as ethics is always about ideologies. Identity is an ideology. t his is how actors position themselves when they take their subject position within the structure of such a discourse, for example inside a criminal procedure (Dežman and Erbežnik, 2003, pp. 447-455). structures and discourses that influence the actions and thinking of discursive subjects are ulti- mately conditioned by their social power. t his applies especially to the discourse in criminal proceedings, in which the defend- ant is in a dispute with the state as a significantly stronger party. t herefore, his or her constitutional rights are a way of compen- sating for this inequality, in order to maintain the ideal of a fair criminal procedure, as a dispute between two equal parties and 12 values, as defined by c erar, are, in their fundamental manifestation, a rationally aware and fluctua- ting, dynamic attachment of a person to a certain phenomenon. In the analytical and psychological sense, a value is a (i)rationally conditioned feeling that creates a rational projection of such a phe- nomenon as an object towards which it gravitates (positive attachment) or repels from it (negative attachment). Just as variable values are otherwise, they are variable also legal values. t hey are also characterized by the fact that they are not universal, but particular, and are temporally, spatially and culturally conditioned. With their dynamic nature, they significantly influence the (dis)continuity of law. (c erar, 2001b, pp. 5 and 24). 39 DIGNITAS n On the discursive nature of Law their possibility to have an equal influence on its outcome. It is characteristic of such a discourse that it functions as an analytical tool before an impartial court. 3.7. Discourse as an analytical tool Discourse analysis is not only a method but a research per- spective that includes many methods. As such, it is an analysis of practice and institutionalized rules and norms. t herefore, it is important as a method of judicial practice, which is used in identifying and analyzing factual and legal issues, namely issues of criminal substantive and procedural law. t he use of law as a linguistic phenomenon presupposes a linguistic analysis of legal concepts, which should be the criterion for judging a concrete case. such an analysis is an indispensable tool for the construc- tion of a legally relevant reality, if it is established that all its as- sumptions are met for the application of the law. As an analytical tool, discourse is therefore an instrumental tool (Frank, 2013, pp. 59-60). For such phenomena as normative and discursive phe- nomena, it is characteristic that the determination of their wider social and legal meaning is embedded in the already repeatedly emphasized structure or context, which is also the subject of dis- cursive analysis. 3.8. Discourse as an object of analysis Discourse is both an analytical tool and an object of analysis, as it is institutionalized and typified under the control of discursive practice. t herefore, it serves as a measure of the success of a cer- tain discourse in achieving its goals. When applied to the field of law, specifically criminal procedure, discourse is analyzed by the judge to assess the procedural effects of the parties‘ statements, and it becomes an object of analysis if the judge‘s decision is sub- sequently reviewed by a higher court. At the institutional level, discursive practice is the subject of discourse analysis, as court decisions are formed through intersubjective procedural commu- nication between prosecutors, judges, and other relevant parties. Neither prosecutors nor judges learn the law in isolation, but in- stead through a communal engagement with discursive practice. Procedural discourse presupposes a formally logical way of think- ing, which raises questions about the reality of the existence of 40 DIGNITAS n Theory of Law asserted facts in the discourse and their impact on the application of the law. 3.9. Ideology and discourse t he distinction between discourse as an analytical tool and discourse as an object of analysis is meaningful because dis- course is consciously used by its participants as a tool to achieve strategic interests, common goals, and consensus. In this sense, discourse shares similarities with the concept of ideology, which assumes the existence of a particular interest presented as a universal one. While discourse is not the same as ideology, it is closely related to it. Ideology can assign different meanings to concepts within a specific discourse, which is often expressed in a socially and politically constructed environment. t herefore, discourse can be the carrier of a particular ideology, which is reproduced through discourse, and shapes the meaning of ideo- logical presentations. t he significance of ideology lies not in its inherent value, but rather in how it is expressed and in its intended purpose. 3.10. Institutional crisis or displacement k nowledge and meaning are situated historically and contex- tually, and individuals internalize this knowledge through sociali- zation, which is reproduced and transformed through language and non-verbal practices. t his mechanism of internalization and socialization becomes evident during institutional crisis or dis- placement, which refers to events that break a coherent, settled, and sedimented discourse. Displacement exposes definitions, concepts, and categories to redefinitions. When a certain devel- opment of events can no longer be understood within the frame- work of the dominant discourse and meanings, changes become inevitable. t he existing hegemonic discourse loses its power and prestige in defining meanings. t herefore, displacement repre- sents a productive moment in a historical and temporal context, as it prevents the completeness of the discourse structure and of- fers the possibility of liberation from established structural forms (Frank, 2013, p. 66). t he phenomenon of displacement in law is common and has led to many changes in substantive and proce- dural law, including criminal procedure. 41 DIGNITAS n On the discursive nature of Law 3.11. t ruth as a normative and discursive category We encounter truth in everyday life as well as in politics, phi- losophy, science and law. t herefore, knowledge about it depends on social processes and actions, which determine which catego- ries of knowledge are „correct“ or „wrong“. When we talk about the truth, we refer to thinking of it. And in doing so we assume that we know it, can discover it, prove it, and pass on to others. We are especially confronted with disputes over the question of what is true. t hese disputes involve passion, courage, efforts, intentions, and actions aimed at finding a basis for justification, proving a claim, or exposing a lie as an abuse of truth. t he ques- tion of truth acquires broader social significance when it is fo- cused on scientific or professional discourse that is defined by institutionalized rules limiting what can or cannot be said. such discourse is directed towards knowledge of certain facts that are assumed or asserted to be true, but it can also be subject to ar- gumentative pressures, particularly when operating according to the principle of authority (Ule, 2004, p. 7). t his kind of discur- sive procedure is clearly evident in criminal proceedings where the truth has a strategic-tactical meaning in persuading the court about the truth or falsehood of statements. Despite being a funda- mental concept in philosophy since ancient times, truth remains a key problem, not only in law but in general (Hribar, 1961, pp. 7-8). In the philosophical sense, truth is a criterion for practice, and practice is a criterion for truth. It is also a criterion for itself and all other truths since it is considered the „truth of all truths.“ However, it is neither dogmatic nor critical but rather a source of permanent self-criticism and criticism of everything that exists. Nevertheless, Foucault considered truth a false universality (Fou- cault, 2008, p. 36). According to the teachings of classical empiricism and rational- ism, truth is considered manifest (Popper, 1973, p. 13). However, according to k. Popper‘s point of view, the problem is that the truth in itself is not always obvious and needs to be discovered. 13 Popper criticized philosophical theories for neglecting the impor- tance of induction and overemphasizing deduction as the main 13 In philosophy, a number of theories have been developed in relation to the concept of truth, such as: correspondence, consensual, schematic, parsimonious, deflationary, minimalist, epistemological, James‘s, coherent theory and the theory of radical constructivism. 42 DIGNITAS n Theory of Law source of knowledge and cognition. t he purpose of inductive logic is to give scientific significance to various theoretical hy- potheses based on knowledge and experience in practice. On a deductive, abstract level, truth is a concept that could directly satisfy the need for justification or persuasion. However, an au- thority worthy of trust is needed to decide what makes the truth obvious and credible in each case. t he assumption of error im- plies the idea of an objective truth about which disputes arise. It has been considered since antiquity that truth is the goal of philosophy and a serious philosopher is one who is concerned with truth (Zore, 1997, pp. 125 and 193-196). In philosophy there is a consistent realization that the basis of the crisis of philosophy is precisely the crisis of truth. Philosophy has developed various truth theories, such as the correspondence or realistic theory of reflection, semantic theory of truth, epistemic theories of truth, pragmatic theory, and coherence theory, which complement and build on each other, highlighting the complexity of the problem of truth (Ule, 2004, p. 3). In philosophy, three meanings of truth are distinguished: logical, ontic, and transcendental-ontological. t ruth in the logical sense refers to knowledge that asserts or de- nies something as logically true, while in the ontic sense, it con- cerns the things that we would like to know, which have their own reality and are accessible to our cognition. t ranscendental- ontological truth refers to the truth that being bestows on beings as unity, reality, and goodness, which is predominantly under- stood in a religious sense (stres, 2018, pp. 743-744). Philosophy and cognitive theory attempt to resolve the fun- damental issues of human knowledge or cognition (Greek epis- téme), primarily from the point of view of its culturally con- ditioned cognitive limitations, i.e., structure. Only within the framework of certain professional terminology can criteria be formulated that do not lead to insoluble contradictions. t he premise that the truth about the truth is that there is no truth about the truth, because truth is a matter of faith, belief, and conviction, demonstrates this (Hribar, 1961, pp. 7-8 and 163- 165). However, philosophy and social science cannot do with- out the concept of truth. such a situation in the philosophical field convinces us that the crisis of truth is also characteristic of all other normative and discursive phenomena such as religion, politics, ethics, and law. What all these social subsystems have 43 DIGNITAS n On the discursive nature of Law in common is that they refer to the truth when consolidating their position. t hey represent a plural and secular society, each with its own system of norms and values based on the belief that these values and norms are universal, and that belief in them is morally binding. t hey must be „missionary“ spread through the process of intersubjective, discursive communication with the aim of creating the widest possible social consensus with due regard to which social phenomena can acquire the meaning of social reality (Harari, 2017, pp. 214-216). If values change, the norms that reflect the social attitude towards them also change. t his inevitably changes social and individual identities, the core of which originates from a certain culture, and thus also the cul- ture itself (v erhaeghe, 2016, pp. 38-39). t ruth is a normative and discursive category. by referring to it, every discourse raises or tries to raise its authority and thus its persuasiveness. For phi- losophy and cognitive theory, therefore, the key question is not what truth is, but above all, what represents the criterion of truth (Ule, 2001, p. 121). t he way in which we know the truth is an integral part of the truth itself (Nahtigal, 1996, p. 234). t herefore, truth cannot be equated with a purely subjective belief, if the as- sertion of the existence of facts is contrary to the objective real- ity that we face through the world of concepts, judgments, logic, and life experiences. A clear proof of how the truth depends on such criteria are evidentiary rules for the exclusion of illegal evidence in criminal proceedings (Dežman and Erbežnik, 2013, pp. 53-69). t he rules, whether experiential, professional, or sci- entific, that determine under what conditions something can be considered true, are constructs, just as constructs are concepts through which we perceive reality. And precisely because so- cial phenomena, that is, facts, are conceptually constructed, the truth about them is also a construct, a matter of interpretation of their existence and meaning. t herefore, since the facts that we experience as sensory changes in the external world are con- structed in our conceptual sphere, they can also be reconstructed (Damaška, 2001, pp. 4-5). What we ourselves have constructed in the discourse about such extra-discursive phenomena as so- cial phenomena and, at the same time, also legally important facts, is being reconstructed. 14 t hat is why we can learn about 14 t he emphasis on the distinction between discursive and extra-discursive realities is due to the fact that postmodernist discursive theory, which is based on hard and radical social constructivism, 44 DIGNITAS n Theory of Law such facts, prove them, and evaluate their importance. In such a discursive context, the methodology of judging such a social phenomenon is understood, which should correspond to the concept of a specific criminal act and, at the same time, the truth about its existence. 15 4. Conclusions t he research mentioned in the introduction justifiably draws attention to the importance of the concept of discourse in legal methodology. Its meaning presupposes an understanding of the nature of law in wider society. Dworkin already answered the still-pending question of whether the law is in books or whether judges discover or invent law (law in books or law in action). He emphasized that not only laypeople assume that the law is provid- ed in advance and only needs to be determined, but even some academically educated lawyers assume so. t hat is why he pointed out that judges not only use the law but also create it (Dworkin, 2003, p. 16). Although the fundamental premise of the classical concept that law is not only used but also created or constructed by judges has been overcome in the field of modern legal theory, it is still asserted that law is in crisis (Pavčnik, 2019, pp. 27-33). t he question posed is what the cause of this crisis is. Either law is in crisis because there are bad laws, or it is due to insufficiently reli- able jurisprudence. Or the alleged crisis of law is perhaps only a crisis of understanding of its discursive nature. t he level of (dis) trust in the judiciary as the foundation of legal culture depends on the understanding of the law, its power, and its powerlessness. t he theory of discourse provides a sufficiently clear answer to this dilemma when it explains the methodology of the discursive way of perceiving those social phenomena to which the law at- tributes legal significance. t he ability to understand the nature of law in a plural and secular democratic society, its unpredict- ability, contingency, changeability, and above all, the willingness to recognize the relativity of justice and truth itself, represent the political problem of every country. t herefore, it is not only the acknowledges only the interdiscursive reality while simultaneously denying the existence of extra- -discursive reality. 15 t he court, which may convict the accused only if convinced of their guilt according to the provision of Article 3 c PA, can therefore form such a belief only in the indicated context. 45 DIGNITAS n On the discursive nature of Law duty of legal science but also of politics to consider and explain the true nature of law. t his applies especially to a country that emphatically declares itself legal and swears its allegiance to the rule of law. 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