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

217The Indeterminacy of Law and the Rationality of Adjudicationrules.36 Klaus Gunther has added further precision to Dworkin'spoint by turning to a theory of argumentation that distinguishesbetween discourses of justification and of application.It one assumes that the cases typical for present-day adjudicationinvolve not only application-specific rules but principles as well,then one can easily show why collisions are quite probable-and yetdo not betray a deeper-lying incoherence in the legal system itself.Except for those norms whose "if' clauses specifY applicationconditions in such detail that they apply only to a few highly typifiedand well-circumscribed standard situations (and cannot be appliedelsewhere without hermeneutical difficulties), all norms are inherentlyindeterminate. Precisely the norms that Dworkin calls "rules,"which require ali-or-nothing decisions in cases of conflict, are theexceptions to this. The coherence of a legal system is in factendangered if conflicting rules of this latter sort provide contradictoryprescriptions, each claiming equal validity, for the same classof cases. All other norms-and not just constitutional rights andprinciples that justify the legal system as a whole-remain indeterminatein their references to situations and have need of additionalspecifications in the individual case. Because such norms are onlyprima facie candidates for application, one must first enter adiscourse of application to test whether they apply to a givensituation (whose details could not have been anticipated in thejustification process) or whether, their validity notwithstanding,they must give way to another norm, namely, the "appropriate"one. Only if a valid norm proves to be the single appropriate onein the case at hand does that norm ground a singular judgment thatcan claim to be right. That a norm is prima facie valid means merelythat it has been impartially justified; only its impartial applicationleads to a valid decision about a case. The validity of the generalnorm does not yet guarantee justice in the individual case.The impartial application of a norm closes the gap that normallyhad to remain open in the norm's impartial justification because ofthe unforeseeability of future situations.37 Discourses of applicationconcern not the norm's validity but its appropriate reference to asituation. Because each norm selects only specific features of anindividual case situated in the lifeworld, the application discoursemust determine which descriptions of the facts are significant and