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

201The Indeterminacy of Law and the Rationality of Adjudicationnomic pressures inside and outside the legal system, the practice ofdecision making is no longer internally determined, that is, guidedby the selectivity of procedure, case, and legal basis. Legalhermeneutics already softened up the inner logic oflaw by embeddingit in tradition and thereby relativizing it. That logic nowcompletely disappears in a "realistic" description of the causalprocess of adjudication.From the standpoint of Legal Realism, the Freirechtsschule ("Free­Law" School), and Interest Jurisprudence, 10 one can no longerclearly distinguish law and politics in terms of structural features.If, however, legal decision making can be assimilated to nakedpower processes, then it no longer makes sense to hold thatconsistent decisions based on a system of sufficiently determinatenorms can secure legal certainty. The law produced in the past losesits dominance over current decisions, because these lie predominantlyin the judge's discretion. At best, the legitimacy claim oflawcan preserve its meaning insofar as judges, like future-orientedpoliticians, make their decisions on the basis of value orientationsthey consider reasonable. Law is then conceived as an instrumentfor behavioral control that can be deployed for reasonable politicalgoals, that is, goals justified on utilitarian or welfare-economicgrounds.U The participants' idealistic notion, that all (or most)cases can be decided on the basis of established law both consistentlyand rightly, has been subjected by realist theories to adisillusioning critique. This critique relies on an observer's point ofview. From a participant's point of view, however,judicial decisionmaking can hardly operate without idealizing suppositions. A flatrevocation of any guarantees oflegal certainty leads to the conclusionthat the legal system must ultimately give up the idea ofsatisfying the very function of law, to stabilize expectations. Therealists cannot explain how the functionally necessary accomplishmentsof the legal system are compatible with a radical skepticismon the part of legal experts.(c) Against this, legal positivism wants to account for the functionof stabilizing expectations, but without having to support thelegitimacy of the legal decision on the contestable authority ofcustomary ethical traditions. In contrast to realist schools of thought,such theoreticians as Hans Kelsen and H. L. A. Hart have worked