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

156Chapter 4and ethical-political reasons; if necessary, they must represent theoutcome of a fair compromise as well. In justifYing legal norms, wemust use the entire breadth o£ practical reason. However, thesefurther reasons have a relative validity, one that depends on thecontext. A collective self-understanding can be authentic onlywithin the horizon of an existing form of life; the choice ofstrategies can be rational only in view of accepted policy goals; acompromise can be fair only in relation to given interest positions.The corresponding reasons count as valid relative to the historical,culturally molded identity of the legal community, and hencerelative to the value orientations, goals, and interest positions of itsmembers. Even if one assumes that in the course of a rationalcollective will-formation attitudes and motives change in line withthe arguments, the facticity of the existing context cannot beeliminated; otherwise ethical and pragmatic discourses, as well ascompromises, would lack an object. On account of this relation tothe de facto substratum of a legal community 's will, a volitional momententers into the normative validity dimension-and notjust into thesocially binding character-oflegal norms. As used for the validitycomponent oflegal validity, the expression "legitimacy" designatesthe specific kind of prescriptive validity (Sollgeltung) that distinguisheslaw from "morality." Valid moral norms are "right" in thediscourse-theoretic sense of just. Valid legal norms indeed harmonizewith moral norms, but they are "legitimate" in the sense thatthey additionally express an authentic self-understanding of thelegal community, the fair consideration of the values and interestsdistributed in it, and the purposive-rational choice of strategies andmeans in the pursuit of policies.(c) The teleological element comes out not only in the contentand meaning of the validity oflaws but also in the contingencies ofthe legislative process. Moral norms, which regulate a reasonablecommon life among rationally capable subjects in general, aresurely not just "discovered" but partly "constructed" at the sametime.22 Yet the moment of construction appears more strongly inlegal norms, with the help of which we give a reasonable structureto a concrete form oflife. The more norms aim at specific forms oflife and life circumstances, the less important is the passive momentof insight in comparison to active shaping and design. The reasons