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

214Chapter 5cases can be consistently decided in agreement with the body ofexisting law; and thus the central assumption that court decisionsare as a rule rational, that is, sufficiently determined by statutoryguidelines, precedents, prevailing doctrines, and so on. Dworkin'stheory of law gives these three assumptions a less vulnerableconstructivist reading. The deontological character of noninstrumentalizablerights manifests itself in the fact that they constitute"threshold weights" against political policies and collective goods.Such rights can be elaborated only in discourses guided by a legaltheory. In the process, some elements of existing law, includingSupreme Court decisions of the past, can prove in retrospect to bemistaken. Only a positive law justified on the basis of principlesallows "single right" decisions. From the CLS perspective, of course,this recourse to a theoretical background is what, today more thanever, exposes the new form of rationalism to realist objections.Because flesh-and-blood judges fall considerably short of theideal figure of Hercules, the recommendation that one orientoneself in everyday work by this figure would only accommodate adesire to endorse legal decisions that are in fact determined byinterest positions, political attitudes, ideological biases, or otherexternal factors. Judges select principles and policies and constructtheir own legal theories from these in order to "rationalize" decisions,that is, to conceal the prejudices with which they compensatefor the objective indeterminacy of lawYDworkin could respond to this by explicating a premise left moreor less in the background. To the extent that the critics can actuallyprove from convincing case studies that court decisions are betterexplained by extralegal factors than by the legal situation, the factsspeak against the existing practice. But the internal indeterminacyoflaw does not, as the critics think, result from the structure oflawitself. Rather, it stems, on the one hand, from the judge's failure todevelop the best theory possible and, on the other, from theinstitutional history of a legal order that, to a greater or lesserdegree, resists rational reconstruction. Constructive interpretationcan issue in success only to the extent that a piece of "existingreason," however fragmentary, has been deposited in the historyout of which a concrete legal order has emerged. As an American,Dworkin has more than two centuries of ongoing constitutional