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

224Chapter 5lated competition among different paradigms. This is why a cooperativeendeavor is required to remove the suspicion of ideologyhanging over such a background understanding. The single judgemust conceive her constructive interpretation fundamentally as acommon undertaking supported by the public communication ofcitizens. Frank Michelman criticizes Dworkin's monological conceptionof judicial decision making along these lines:What is lacking is dialogue. Hercules . .. is a loner. He is much too heroic.His narrative constructions are monologous. He converses with no one,except through books. He has no encounters. He meets no otherness.Nothing shakes him up. No interlocutor violates the inevitable insularityof his experience and outlook. Hercules is just a man, after all. No oneman or woman could be that. Dworkin has produced an apotheosis ofappellate judging without attention to what seems the most universal andstriking institutional characteristic of the appellate bench, its plurality. 51The above comment hints at a way out of the dilemma one facesin having to account both for the fallibility of ambitious theoryconstructions and for the professional character of judicial decisionmaking. Hercules could conceive himself as a member of theinterpretation community of legal experts; his interpretationswould then have to follow standards recognized in the profession:"He is disciplined by a set of rules that specifY the relevance andweight to be assigned to the material (e.g. words, history, intention,consequence) , as well as by those that define basic concepts andthat establish the procedural circumstances under which the interpretationmust occur."52 In making this proposal, Owen Fiss has inmind primarily those procedural principles and maxims of interpretationthat are constitutive for the role and practice of impartialadjudication. Specifically, these are meant to ensure the independenceof the judiciary, constraints on individual discretion, respectfor the integrity of the disputing parties, the written justificationand official signing of the judgment, its neutrality, and so on.Professionally proven standards are meant to guarantee the objectivityof the judgment and its openness to intersubj ective review.Naturally, the status of these rules is not unproblematic. On theone hand, they are employed in the procedural justification ofjudicial decision making and thus partly ground the validity oflegal