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

226Chapter 5constative or regulative speech acts; thus they rationally mptivatethose taking part in argumentation to accept the correspondingdescriptive or normative statements as valid. A theory of argumentationthat clarifies the role and construction of particular argumentsexamines the argumentation game from the standpoint ofthe product alone; at best it provides the starting point for groundingthe argumentative steps that go beyond an internal justificationof legal judgments. To justify externally the premises of a decision,Dworkin calls for a comprehensive theory that, as we have seen,overtaxes the solipsistic efforts of the individual judge. This raisesthe question whether the ideal demands on the postulated theorymight not be translated in to ideal demands on a cooperative procedureof theory formation, that is, demands on a legal discourse that takesinto account both the regulative ideal of single right decisions andthe fallibility of actual decision making. A discourse theory of law,which ties the rational acceptability ofjudicial decisions not only tothe quality of arguments but also to the structure of the argumentativeprocess, might not solve this problem, but it at least takes itseriously. Such a theory relies on a strong concept of proceduralrationality that locates the properties constitutive of a decision'svalidity not only in the logicosemantic dimension of constructingarguments and connecting statements but also in the pragmaticdimension of the justification process itself.In any case, one cannot explain the rightness of normativejudgments along the lines of a correspondence theory of truth, forrights are a social construction that one must not hypostatize intofacts. "Rightness" means rational acceptability supported by goodreasons. The validity of a judgment is certainly defined by the factthat its validity conditions are satisfied. Whether these are satisfied,however, cannot be clarified by direct access to empirical evidenceor to facts given in an ideal intuition, but only discursively, preciselyby way of a justification that is carried out with arguments. Substantialreasons can never "compel" in the sense oflogical inference orconclusive evidence. The former does not suffice for justification,because it merely explicates the content of the premises, whereasthe latter is not available except in the case of singular perceptualjudgments, and even then it is not beyond question. Hence thereis no "natural" end to the chain of possible substantial reasons; one