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

256Chapter 6Different kinds of action orientation result depending on whetherI base my action in a particular case on norms or on values. Thequestion of what I should do in a given situation is posed andanswered differently in the two cases. In the light of norms, I candecide what action is commanded; within the horizon of values,which behavior is recommended. Naturally, in both cases theproblem of application requires the selection of the right action.But if we start with a system of valid norms, that action is "right" thatis equally good for all; in reference to a typical value constellationfor our culture or form of life, on the other hand, that behavior is"best" that, on the whole and in the long run, is good for us. Withprinciples of law or "legal values" (i.e., legally protected interests,Rechtsgiitern) , this difference is often overlooked, because positivelaw always holds only for a specific territory and a corresponding setof addressees. Notwithstanding this de facto restriction of the legalsphere, however, basic rights acquire a different meaning, eitherdeontological or axiological, depending on whether one, likeDworkin, conceives them as binding legal principles or, like Alexy,as optimizable legal values. As norms, they regulate a matter in theequal interest of all; as values, they enter into a configuration withother values to comprise a symbolic order expressing the identityand form of life of a particular legal community. No doubt valuesor teleological contents also find their way into law, but law definedthrough a system of rights domesticates, as it were, the policy goalsand value orientations of the legislator through the strict priority ofnormative points of view. Anyone wanting to equate the constitutionwith a concrete order of values mistakes its specific legalcharacter; as legal norms, basic rights are, like moral rules, modeledafter obligatory norms of action-and not after attractivegoods.From the standpoint of conceptual analysis, the terminologicaldistinction between norms and values loses its validity only in thosetheories that claim universal validity for the highest values or goods,as in the classical versions of ethics o£ the good. These ontologicalapproaches reify goods and values into entities existing in themselves;under the conditions of postmetaphysical thinking, thismoral realism scarcely seems defensible. In contemporary theoriesof this sort, the small set of supposedly universal values or goods