ABSTRACT
Discourse theory is frequently applied as the 'basic theory of the democratic constitutional state'. 1 The impact of constitutional economics on jurisprudence then falls within the expansive theme of analysing the strategic ties of ideal speech communities? A large gap, however, demarcates the border between law and economics - a gap that cannot easily be bridged. The first obstacle arises with the different understanding of 'agreement' and 'consensus' within strategic and moral frameworks of legitimation: decision making and discourse do not overlap (1). A further complication arises from the misunderstanding of discourse as intellectual elitism (2). Finally, the ephemeral connection between law and economics is in fact very one-sided: economics holds legal significance only where economic rationality is normatively acknowledged by law (3).
