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

252--- -- ---Chapter 6Where there is ambiguity, courts should construe regulatory statutes sothat (1) politically unaccountable actors are prohibited from decidingimportant issues; (2) collective action problems do not subvert statutoryprograms; (3) various regulatory statutes are, to the extent possible,coordinated into a coherent whole; ( 4) obsolete statutes are kept consistentwith changing developments oflaw, policy, and fact; (5) proceduralqualifications of substantive rights are kept narrow; (6) the complexsystemic effects of regulation are taken into account; and, most generally,(7) irrationality and injustice, measured against the statute's own purposes,are avoided.24Sunstein's proposal, which displays parallels to Denninger's explicationof key constitutional concepts, interests me at this point fortwo reasons. First, it makes an exemplary contribution to theparadigm discussion without losing sight of the original, indeedradical-democratic meaning of the system of rights: "Notwithstandingtheir number and variety, the principles are united by certaingeneral goals. These include, above all, the effort to promotedeliberation in government, to furnish surrogates for it when it isabsent, to limit factionalism and self-interested representation,and to help bring about political equality."25 Second, the proposalindicates an awareness of the difference between the principles ofthe constitutional state and their paradigmatic modes of interpretation.The temptation to return to the liberal understanding ofbasic rights is also due to a neglect of this difference. 26Through the first third of the twentieth century, the liberalparadigm oflaw expressed a background consensus that was widelyshared by legal experts. It thus provided the application oflawwitha context of unquestioned maxims of interpretation. This circumstanceexplains the suggestion that the law could seemingly beapplied in those days without recourse to principles and disputed"key concepts" in need of interpretation. In fact, every legal orderjustified by principles depends on a constructive interpretationand thus on what Sunstein calls "background norms." Every importantjudicial decision or precedent goes beyond an interpretationof the text of the statute and to this extent requires an externaljustification:Statutory text is the starting point, but it becomes intelligible onlybecause of the context and background norms that give it content.