Between Facts and Norms - Contributions to a ... - Blogs Unpad

115A Reconstructive Approach to Law IProblems of norm justification do not present the real difficulties.Normally, the basic principles themselves-entailing such duties asequal respect for each person, distributive justice, benevolencetoward the needy, loyalty, and sincerity-are not disputed. Rather,the abstractness of these highly generalized norms leads to problemsof application as soon as a conflict reaches beyond the routineinteractions in familiar contexts. Complex operations are requiredto reach a decision in cases of this sort. On the one hand, one mustuncover and describe the relevant features of the situation in lightof competing but somewhat indeterminate norm candidates; onthe other hand, one must select, interpret, and apply the normmost appropriate to the present case in the light of a description ofthe situation that is as complete as possible. Thus, problems ofjustification and application in complex issues often overtax theindividual's analytical capacity. This cognitive indeterminacy is ab- Jsorbed by the facti city of the genesis oflaw. The political legislaturedecides which norms count as law, and the courts settle contests ofinterpretation over the application of valid but interpretable normsin a manner at once judicious and definitive for all sides. The legalsystem deprives legal persons in their role of addressees of thepower to define the criteria for judging between lawful and unlawful.Parliamentary legislative procedures,judicial decision making,and the doctrinal jurisprudence that precisely defines rules andsystematizes decisions represent different ways that law complementsmorality by relieving the individual of the cognitive burdensof forming her own moral judgments.(b) However, a principled morality encumbers the individual notonly with the problem of deciding action conflicts but also withexpectations (rwartungen) regarding her strength of will. On theone hand, in conflict situations she is supposed to be willing to seeka consensual solution, that is, to enter discourses or to carry outimaginary discourses in an advocatory fashion. On the other hand,she is supposed to find the strength to act according to moralinsights, if necessary against her own immediate interests, andhence reconcile duty and inclination. The actor is supposed toachieve harmony between herself as author of moral "oughts" andherself as their addressee. In addition to the cognitive indeterminacyof principled judgment, then, there is the motivational uncer-