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

219The Indeterminacy of Law and the Rationality of Adjudication(c) With Gunther's elegant proposal, however, the ideally justifiedcoherence of the legal system takes on a different meaning.The postulated legal theory still has the task of rationally reconstructingexisting law so as to allow precisely one right decision foreach new case. But now the theory merely provides guidelines fora flexible set of principles and policies that are transitively orderedonly in each application discourse referring to a particular case.The relations among valid norms changes depending on the relevantconstellation of features of the case to be decided. In this way,the indeterminacy oflegal norms that are valid but only prima facieapplicable-an indeterminacystemmingfrom the division oflaborbetween justification and application-is reflected in the degreesof freedom enjoyed by a mobile set of principles. The latter enterinto a specific order of relations with one another only when itbecomes clear how the currently appropriate norm refers to thesituation: "If every valid norm must be coherently complementedby all the other norms applicable in a situation, then the meaningof the norm [subtly] changes in every situation. In this way wedepend on history, since it alone provides us with the unforeseeablesituations that compel us to adopt at each point a different interpretationof the set of all valid norms."41Evidently, this coherence theory of law can avoid the indeterminacysupposedly due to the contradictory structure of the legalsystem only at the cost of the theory itself becoming somehowindeterminate. Yet how can such a theory inform a decisionmakingpractice intended to guarantee the certainty of law? Incriticism ofDworkin's version of the coherence theory, it has beenobjected that a rational reconstruction of past decisions requirestheir revision from case to case, which would amount to a retroactiveinterpretation of existing law. This "ripple effect argument"42applies all the more to Gunther's interpretation of Dworkin'scoherence theory, namely, to the "ripple effect" that engulfs thesystem of legal norms as each successive case brings on a furthercoherent interpretation. The element of surprise in each new casenow seems to draw theory itself into the vortex of history. Theproblem is obvious: the political legislator must adaptively react tohistorical processes, even though the law exists to erect walls ofstable expectations against the pressure of historical variation.