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

204Chapter 5objection against Rawls that the parties in the original position canagree on this principle only because the basic right to equalconcern and respect already regulates the parties' admission to theoriginal position, and hence belongs to the conditions of rationalagreements in general. For Dworkin this basic right cannot begrounded on further principles and thus enjoys the status of a"natural right of all men and women ... [which] they possess . ..simply as human beings with the capacity to make plans and givejustice."13 To avoid natural-law connotations, one can also understandthis as an explanation of the deontological character of basicrights in general. This kind of moral meaning is transmitted toinstitutionally binding, or "political," rights and confers a momentof unconditionality on individual legal claims. Dworkin understandsrights as "trumps" in a game in which individuals defendtheir justified claims against disadvantages resulting from collectivepolicies: "It follows from the definition of a right that it cannotbe outweighed by all social goals. We might, for simplicity, stipulatenot to call any political aim a right unless it has a certain thresholdweight against collective goals in general."14 Certainly it is not thecase that all rights have absolute validity, but each right imposeslimits on cost-benefit analysis in the realization of collective goals.These limits are ultimately justified by the principle of equal· respect for each person.Dworkin's theory of rights is premised on the claim that moralarguments play a role in adjudication because positive law hasunavoidably absorbed a moral content. This premise harbors nosurprise for a discourse theory starting with the assumption thatmoral reasons enter into law via the democratic procedure oflegislation (and through the fairness conditions of compromiseformation).15 Nevertheless, this point requires some explanationinasmuch as moral contents, once translated into the legal code,undergo a change in meaning that is specific to the legal form.Excursus on the Moral Content of LawThe legal meaning of moral contents and the range of variation intheir specific weights are most evident in the sphere of primaryrules that regulate behavior. If we follow Bernhard Peter's pro-