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

196Chapter 5political parties, electorates, parliamentary bodies, and Governmentleaders. It also involves the courts insofar as they interpretand develop law, and administrative agencies insofar as they exercisea rather broad discretion. In truth, the function of applyinglaws is performed not only by courts inside the horizon of legaldoctrine and the public of legal experts, but implicitly by administrationsas well. Finally, the function of implementing laws isexercised not only by the administration, but indirectly by thecourts as well. To some extent these legal £unctions are evendelegated by the government to quasi-public or private bodies.I take the legal system in the broad sense to include all legallyregulated action systems; reflexive law constitutes a core area forthe production of legal acts by private persons, whereas materiallegal norms immediately direct behavior in various ways. Moreover,a stratification exists between formally organized spheres ofinteraction that are legally constituted and those spheres that,primarily regulated through extralegal institutions, merely have anoverlay of law. In formally organized spheres like the economy orthe state apparatus, most interactions are guided by law and, evenfrom the actor's perspective, referred to law, whereas in sphereslike the family, neighborhood, or educational system it is only incases of conflict that the law emerges from the background andenters the awareness of the actors.2These remarks should suffice to roughly locate the legal systemin the narrow sense. A discourse theory oflaw must first of all proveitself at this level. Unlike a philosophical theory o£ justice, legaltheory moves within the compass of particular legal orders. It drawsits data from established law (geltenden Recht) , from statutes andprecedents, doctrinal commentaries, political contexts o£ legislation,historical legal sources, and so forth. Unlike philosophy, legaltheory cannot afford to ignore those aspects that result from theinternal connection between law and political power-primarilythe question of the legal licensing of the government's applicationof legitimate force.3 Like jurisprudence (Rechtsdogmatik) , legaltheory privileges the judge's perspective. This is due to the functionalstatus the judiciary has inside the legal system in the narrowsense. Because all legal communications refer to actionable claims,court decisions provide the perspective from which the legal system