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

254Chapter 6alternative of providing a correct understanding of constructiveinterpretation, according to which rights must not be assimilatedto values.Insofar as the charge of "value jurisprudence" applies, the FederalConstitutional Court understands the Basic Law of the FederalRepublic not so much as a system of rules structured by principles,but as a "concrete order of values," in the sense of the material valueethics developed by such thinkers as Max Scheler or NicolaiHartmann. Concurring with the wording and tenor of some importantopinions of the Federal Constitutional Court, Bockenforde,too, conceives principles as values: "objective fundamental norms"are supposed to rest on "value decisions." Like Maus, he followsAlexy's proposal that we view the norms or principles thus transformedinto values as optimizing prescriptions whose intensityremains open.28 This interpretation accommodates the talk of"balancing interests" (or weighing values, Guterabwiigung) that iscommon among lawyers. If principles manifest a value that oneshould optimally realize, and if the norms themselves do not dictatethe extent to which one must fulfill this optimizing prescription,then the application of such principles within the limits of what isfactually possible makes a goal-oriented weighting necessary. Be-. cause no value can claim to have an inherently unconditionalpriority over other values, this weighting operation transforms theinterpretation of established law into the business of realizing valuesby giving them concrete shape in relation to specific cases:Concretization is the (creative) filling out of something prescribed onlyas a direction or principle, something otherwise open and initially inneed of being shaped through a process of specification into an executablenorm. Hans Huber noted long ago that the need to concretize basicrights, understood as principles-a need following from their comprehensivevalidity, scope, and indeterminacy-must not be confused withthe need to interpret . ... We might add for the sake of clarity that this casespecificlegislation, since it appears as interpretation of the Constitution,lies at the same level as the Constitution and thus represents constitutionallegislation. 29Bockenforde thus takes the methodological self-understanding ofthe Constitutional Court at its word and criticizes it with CarlSchmitt's thesis of the "tyranny of values," without seeing that the