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

207--- ---- ----- - · ---- --- -·- · ------The Indeterminacy of Law and the Rationality of Adjudicationalso explained by the fact that the basic norms of both law andmorality, which are grounded in the same discourse principle,substantively intersect.5.1.3However Dworkin himself may conceive the relation between lawand morality in detail, his theory of rights at least requires adeontological understanding of legal validity claims. With this hebreaks out of the circle that ensnares legal hermeneutics in its turntoward the historically proven topoi of a received ethos. Dworkingives the hermeneutical approach a constructivist turn. He beginsby criticizing legal positivism, in particular (a) its neutrality thesisand (b) its assumption that a legal system is autonomously closed.He then goes on to develop (c) his methodological ideas regardingconstructive interpretation.(a) To begin with, Dworkin disputes the assumption that law islegitimated by the mere legality of the legislative procedure. Legaldiscourse is independent of morality and politics only in the sensethat moral principles and political policies must also be translatedinto the neutral language of law and connected to the legal code.Beneath this unity of the code, however, one finds that legitimatelaw involves a complex notion of validity. This explains why landmarkdecisions and important precedents usually admit reasons ofextralegal origin, hence pragmatic, ethical, and moral considerations,into legal discourse.With the help of well-known precedents taken primarily fromAmerican law, Dworkin analyzes how judges manage to cope withindeterminate legal situations through reference to the backgroundof political policies and moral principles. They arrive atwell-grounded decisions by juristically processing arguments ofpolicy and of principle. Such external justifications are possiblebecause existing law itself has already incorporated teleologicalcontents and moral principles; most important, it has absorbed thesupporting reasons of the political legislature. These reasons canonce again emerge, as it were, when higher courts rule on hardcases. To be sure, in the process of adjudication, arguments ofprinciple enjoy priority over arguments of policy: policy arguments