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

215The Indeterminacy of Law and the Rationality of Adjudicationdevelopment behind him; as a liberal, he favors a rather optimisticassessment and finds the development of American law to be drivenmainly by learning processes. Someone not sharing such confidenceor standing in other political and legal-historical contexts,however, need not renounce the regulative ideal embodied inHercules as long as existing law offers at least some historical basisfor a rational reconstruction.With the concept of"integrity," Dworkin attempts to show that allmodern legal orders refer to the idea of government by law; theysecure an unshakable point of reference for critical hermeneuticseven where the traces of practical reason in one's own institutionalhistory are rather faint. Dworkin's basic standard of "integrity"indicates the political ideal of a community in which personsassociated under law recognize one another as free and equal. It isa principle that obligates citizens-just as it does legislative, adjudicative,and administrative bodies-to realize the basic norm ofequal concern and equal respect for each person in the practicesand arrangements of society: "It insists that people are members ofa genuine political community only when they accept that theirfates are linked in the following strong way: they accept that they aregoverned by common principles, not just by rules hammered outin political compromise."32 When a political community constitutesitsel£as such, the founding act of constitution making meansthat the citizens grant themselves a system of rights that securestheir private and public autonomy. At the same time, they expectone another to join in the political process, which Dworkin describesas "a theater of debate about which principles the communityshould accept as a system." The ideal demands on a theoreticallyinformed administration of justice reflect a regulative idea that thejudge finds in the nation's constitution (or its equivalent) : "Anassociation of principle is not automatically a just community; itsconception of equal concern may be defective or it may violaterights of its citizens or citizens of other nations . ... But the modelof principle satisfies the conditions of a true community better thanany other model of community that is possible for people whodisagree about justice and fairness to adopt."33With this answer to a first round of criticism, Dworkin derives theidealizations built into Hercules' theory from a regulative idea that