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

206Chapter 5--- - ------ --- --------like, with specific powers occupy a middle position between morallyladen and largely nonmoralized rules. The exercise of thesepowers (e.g., conducting labor actions, negotiating compromises,setting down business procedures) follows rules and formalrequirements that occasionally extend to morally relevant behavior,such as duties to inform and duties of care, exclusion ofimproper tactics, and so on. Even in private law, "good faith" orliability for unintended consequences plays a role. Interestinglyenough, such formal requirements cannot completely explicatethe moral substance of what Durkheim called the noncontractualbases of contracts; this substance cannot be fully captured in thelegal form. This concerns above all the capacity for moral judgment,which if it does not actually guide should at least accompanythe authority to produce and apply legal norms. This interpretationmight be problematic for norms that confer legal powers in thecore area of private law. It does gain a certain plausibility, however,in view of areas where public powers of lawmaking and organizationare delegated to bearers who are "private" in name only (e.g.,parties involved in wage agreements or board members chosenaccording to industrial relations law) .Naturally, as a standard for legitimate law, morality has its primary. abode in the political will-formation of the lawgiver and in thepolitical communication of the public sphere. Even the abovementionedexamples for morality in the law show only that moralcontents are translated into the legal code and furnished with adifferent mode of validity. Overlapping contents do not blur theboundary between law and morality, which are irreversibly differentiatedat the postconven tional level ofjustification. As long as thedifference between the languages of morality and law is maintained, themigration of moral contents into law does not signifY any immediatemoralization of law. When Dworkin speaks of arguments of principlejustifying judicial decisions externally, in most cases he haslegal principles in mind in any case, that is, standards that resultfrom the application of the discourse principle to the legal code.The system of rights and constitutional principles are certainlyindebted to practical reason, but they are due in the first instanceto the special shape this reason assumes in the principle of democracy.The moral content of constitutional rights and principles is