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

233The Indeterminacy of Law and the Rationality of Adjudicationbut, among other things, by the availability, cogency, relevance,and selection of information; by how fruitful such informationproves to be; by how appropriately the situation is interpreted andthe issue framed; by the rationality of voting decisions; by theauthenticity of strong evaluations; and above all by the fairness ofthe compromises involved. No doubt one can use moral discoursesof application as a model for investigating legal discourses, for bothhave to do with the logic of applying norms. But the more complexvalidity dimension of legal norms prohibits one from assimilatingthe legitimacy oflegal decisions to the validity of moral judgments.To this extent one should not conceive legal discourse as a specialcase of moral discourses (of application). The procedural principlestested and confirmed in practice and the maxims of interpretationcanonized in textbooks on legal method will be satisfactorily ·captured in a discourse theory only when the network of argumentation,bargaining, and political communications in which thelegislative process occurs has been more thoroughly analyzed thanit has been to date.705.3.4Although the special-case thesis, in one version or another, isplausible from a heuristic standpoint, it suggests that law is subordinateto morality. This subordination is misleading, because it isstill burdened by natural-law connotations. The thesis becomes lessproblematic as soon as one takes seriously the parallel differentiationo£law and morality that occurs at the postconventional level ofjustification. As we have seen, the discourse principle then requiresa duly abstract formulation, whereas the principles of morality anddemocracy (among others) result from the specification of thediscourse principle with respect to different kinds of action norms.The principle of morality regulates informal and simple face-tofaceinteractions; the principle of democracy regulates relationsamong legal persons who understand themselves as bearers ofrights. The rational discourse presupposed by the discourse principleaccordingly branches out, on one side into moral argumentation,on the other into political and legal discourses that areinstitutionalized in legal form and include moral questions only in