Abstract.Klaus Günther's (1988) book developed the distinction between two kinds of discourse, the foundation discourse and the application discourse. In an article (Günther 1989a) following the publication of the book, he used this basic distinction as the starting point for a criticism of the special case‐thesis as defended by Robert Alexy (1978, 32ff., 263ff.; Alexy 1989, 16ff., 213ff.). The aim of this article is to criticize this criticism in its turn and to show that the special case‐thesis does not need the reformulation which Günther proposes. It should be clear from the outset that this concerns an internal discussion in the field of discourse theory; certain discourse‐theoretical premises are taken for granted. In order to understand Giinther's criticism I will first give a brief account of the distinction he