Muguerza, Javier - The Tanner Lectures on Human Values

[MUGUERZA] <strong>The</strong> Alternative of Dissent 89extralegal grounding of the law, even in the case of human rights.Once incorporated into the legal statutes - for example, in theform of fundamental rights or anything similar - why inquirefurther into their “grounding” or foundation? But, as I said,human rights offered us a Janus face and were moral demandsbefore being recognized as such rights. As moral demands theyconstituted presumed rights - something quite different from supposedrights, where the adjective would serve to disqualify ratherthan just to qualify - or, if one prefers, they might be consideredassumed rights, that is, demands assumed “as if” they were rights.But how justify our assumption or presumption of these rightswithout inquiring into their grounding ? Whatever the positivistmay say, questions about this grounding are far from idle and wemust continue to ask them.But, despite my insistence on ethics, I intend that our treatmentof grounding or foundation be as realistic as possible. And,when I speak of realism, I also mean this in the sense of legalrealism, which, as we know, need not be a dirty realism - unlikethe latest United States novels. At least, Judge Oliver WendellHolmes’s scandalous definition, according to which law is nothingbut the set of “the predictions about what the judges will do infact,” a definition that amounted to the birth notice of Americanlegal realism, has never seemed scandalous to me, nor has thecircumscription of legal validity to the judges’ conduct, which AlfRoss and the Scandinavian realists contributed to the theorizingabout “law in force,” ever seemed scandalous to me either. 29 Toput it in the briefest terms, it is a question of recognizing, in contrastto any doctrinaire view of jurisprudence, that judges maysometimes decide - although they will not always, or necessarily,do so-not by virtue of reasons that allow them to adduce anappropriate legal rule for their decision, but just the reverse, thatis, by first deciding and then choosing - as with a “rationaliza-29 See Dworkin, Taking Rights Seriously, chap. 1, and Liborio Hierro, Elrealismo jurídico escandinavo (Valencia, 1981).