Legitimization of criminal enactment. Thoughts from procedural ethics

Abstract

The procedural nature of discursive ethics, its conception of communicative rationality based on argumentation, its claim to harmonize tension between facts and validity and their communicative budgets are fundamental aspects in rational legitimization of criminal enactment. Now, certain specific criminal’s features may propose the question this ethical proposal: its structural discriminatory nature; the absence, perhaps also structural, of a plural debate in criminal policy; the social and political domination reproduced by discourse; and the need to incorporate the harm principle to the process of legitimization. This situation leads to resume the ethical paradigm of the welfare state: the obligation of reduce criminal discrimination both in the social order as discursive.