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

199The Indeterminacy o_£ Law and the Rationality of Adjudicationvalidity in the light of rules and principles that are here and nowaccepted as legitimate. To this extent, the justifications must beemancipated from the contingencies of their historical genesis. Inhard cases, this switch in perspective from history to systematics isexplicitly carried out in the transition from the internal justificationof a verdict that relies on given premises to the externaljustification of the premises themselves.5 As is the case with laws,court decisions, too, are "creatures of both history and morality:what an individual is entitled to have, in civil society, depends onboth the practice and the justice of its political institutions."6The rationality problem thus consists in this: how can the applicationof a contingently emergent law be carried out with bothinternal consistency and rational external justification, so as toguarantee simultaneously the certainty of law and its rightness? If ·one assumes that the natural-law option, which simply subordinatedpositive law to suprapositive standards, is no longer available,then there are, to begin with, three well-known alternatives fortreating this central question in legal theory: (a) legal hermeneutics,(b) legal realism, and (c) legal positivism.(a) In opposition to the conventional model oflegal decision assubsuming a case under the pertinent rule, legal hermeneutics hasthe merit of having revived the Aristotelian insight that no rule isable to regulate its own application.7 If we consider a case to be astate of affairs falling under a rule, then such a case is constitutedonly by being described in terms of the norm applied to it. At thesame time, the norm acquires a more concrete meaning preciselyin virtue of its application to a corresponding state of affairs, whichis thereby transformed into a case. A norm always "takes in" acomplex lifeworld situation only in a selective manner, in view ofthe criteria of relevance prescribed by the norm itself. At the sametime, the single case constituted by the norm never exhausts thevague semantic contents of a general norm but rather selectivelyinstantiates them. This circular description indicates a methodologicalproblem that every legal theory has to elucidate.Hermeneutics proposes a process model as its solution.Interpretation begins with an evaluatively shaped preunderstandingthat establishes a prior relation between norm and circumstancesand opens the horizon for further relational connections.