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

229The Indeterminacy of Law and the Rationality of AdjudicationQuestions of norm application touch on participants' understandingof themselves and the world in a different way than occursin discourses of justification. In discourses of application, normstacitly accepted as valid still refer to the interests of all those possiblyaffected; but with the question of which norm is the appropriateone for a given case, those general references take second place tothe particular interests of the immediately affected parties. Instead,highly contextualistic interpretations of the situation come to thefore, which depend on the different self-understandings andworldviews of the actual participants. Participants in an applicationdiscourse must work their different interpretations of the samesituation into a normatively rich description of the circumstancesthat does not simply abstract from the existing differences inperception. Once again it is a question of a sensitive, non coercive ·coordination of different interpretive perspectives. Naturally, inapplication discourses the particular participant perspectives mustsimultaneously preserve the link with the universal-perspectivestructure that stands behind presumably valid norms in justificationdiscourses. Hence interpretations of the individual case,which are formed in the light of a coherent system of norms,depend on the communicative form of a discourse whose socioontologicalconstitution allows the perspectives ofthe participantsand the perspectives of uninvolved members of the community(represented by an impartial judge) to be transformed into oneanother. This also explains why the concept of coherence employedin constructive interpretation resists purely semantic characterizationsand refers to the pragmatic presuppositions of theargumentative process.5.3.3Two complementary avenues of thought are evident in the relevantliterature on legal argumentation. One climbs from concretequestions ofjustifying legal decisions to a theory oflegal discourse;I cannot go into this approach here. 58 The other avenue starts fromabove and heads downward. Robert Alexy begins with an analysis ofthe presuppositions and procedures of rational discourse as such.The "rules of reason," as he calls them, instantiate idealizations that