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

208Chapter 5have their genuine place in the legislative process, and they maketheir way in to juristic discourse through this process. Adjudicationis geared to the application of legal norms that stabilize expectations;it considers legislative policies and goals in the light ofprinciples, for "arguments of principle justify a political decision byshowing that the decision respects or secures some individual orgroup right."17 In general, political policies, too, are already justifiedin the light of principles and existing rights, but only argumentsof principle that refer to the system of rights can preserve theinternal connection between the decision about an individual caseand the normative substance of the legal order as a whole.(b) Dworkin next draws on the distinction between "rule" and"principle" to explain the inadequacy of the conception of law onwhich Hart based his autonomy thesis. Rules are concrete normssufficiently specified for application to typical cases (for example,stipulations for drawing up wills), whereas principles representgeneral legal standards in need of interpretation (such as humanrights and equal treatment) . Both rules and principles are normsthat claim to be deontologically valid; that is, they have an obligatorycharacter. The distinction between these types of norms mustnot be confused with that between norms and policies. Neither. rules nor principles have a teleological structure. Contrary to whatlegal methodologies tend to suggest when they refer to "weighingvalues" ( Giiterabwiigung) , principles must not be understood asoptimizing prescriptions, because that would eradicate theirdeontological character.18 Rules and principles both serve as argumentsin the justification of decisions, though each has a differentstatus in the logic of argumentation. Rules always contain anantecedent "if' clause, specifying the typical situational featuresthat constitute the conditions of application, whereas principleseither appear with an unspecified validity claim or are restricted intheir applicability only by general conditions that require interpretation.This explains the characteristic difference that Dworkinhighlights, namely, the difference in how rules and principlesbehave in cases of collision. A conflict between rules can only beresolved in one of two ways, either by introducing an exceptionclause or by declaring one of the conflicting rules to be invalid.Such an aU-or-nothing decision is not necessary when principles