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

212Chapter 5According to Dworkin, legal principles and the legislator's politicalpolicies compatible with such principles supply the argumentativemeans for reconstructing the bulk of existig law to the pointwhere it can be considered normatively justified. Dworkin calls forthe construction of a theory oflaw, not a theory of justice. The taskdoes not consist in the philosophical construction of a well-orderedsociety whose basic institutions would embody principles of justice.Rather, it consists in discoveringvalid principles and policies in thelight of which a given, concrete legal order can be justified in itsessential elements such that all the individual decisions fit into it asparts of a coherent whole. As Dworkin realizes, such a task could beperformed only by a judge whose intellectual capacities wouldcompare to the physical strength of Hercules. 'judge Hercules" hastwo components of ideal knowledge at his disposal: he knows all thevalid principles and policies necessary for justification, and he hasa complete overview of the dense web of arguments tying togetherthe scattered elements of existing law. Both components set boundariesfor theory construction. The open terrain that Herculescovers with his superhuman capacity for argumentation is indicated,on the one hand, by the possible variations in the hierarchicalrankings of principles and policies and, on the other hand, bythe necessity of critically sifting through the bulk of positive law andcorrecting "mistakes." Indeed, Hercules is supposed to discover thecoherent set of principles that would justify the institutional historyof a given legal system "in the way fairness requires."26But only a just legal system that resulted from an ongoinglearning process could be completely justified in this retrospectiveway: "In any case, therefore, Hercules must expand his theory toinclude the idea that a justification of institutional history maydisplay some part of that history as mistaken."27 At the same time,Hercules must not equate the role of the theoretician who reconstructsan existing body of legal norms with that of a constructivelegislator who generates norms. Not all the elements of the legalorder, however, bind the judge to the same extent; they vary in thedegree to which they permit a probing, corrective evaluation. Thecontingency of the original contexts, and hence the scope for aretrospectively altered assessment, increases as one moves from theconstitutional framework through individual constitutional norms,