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

220---- ---- -·--· ·--·- -·--- --Chapter 5As an opening response to this objection, one might call theconcept oflegal certainty in to question. If, contrary to the positivistview, a legal system does not consist solely of"rules," that is, normswith built-in application procedures, then it cannot guarantee thatcourt decisions will have the degree of predictability conditionalprograms make possible. The classical conceptoflegal certaintywhoserational implications Lon Fuller, for example, has analyzed43-requiresa rule structure that a complex and self-referentiallegal system constructed of rules, principles, and polices can nolonger accommodate. Hence legal certainty, which is based on theknowledge of unambiguously conditioned behavioral expectations,is itself a principle that must be weighed against otherprinciples in the case at hand. By way of compensation, thepostulated legal theory makes possible "single right" decisionsguaranteeing the certainty of law at a different level. Proceduralrights guarantee each legal person the claim to a fair procedurethat in turn guarantees not certainty of outcome but a discursiveclarification of the pertinent facts and legal questions. Thus affectedparties can be confident that in procedures issuing injudicial decisions only relevant reasons will be decisive, and notarbitrary ones. If we view existing law as an ideally coherent systemof norms, then this procedure-dependent certainty of law can satisfy theexpectations of a legal community intent on its integrity andoriented toward principles, such that each is guaranteed the rightsto which she is entitled.The following proposal goes farther in answering the problem ofretroactivity.44 If deciding a case in the light of a prioritized normmeans that one exhaustively reviews an entire system of valid normsin the course of considering all the relevant circumstances of thecase at hand and if this system is in constant movement because thepriority relations can change with each new situation, then theorientation toward such a demanding ideal will, as a rule, overtaxeven professional adjudication. Hence, in actual practice the complexityof this task is reduced by the paradigmatic legal understandingprevailing at the time. In the place of the ideal, we find paradigmsin which norms we consider valid here and now have been ranked in atransitive order. Since such a ranking cannot be constructed without