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

257------ -- ---------- ---- --------- --Judiciary and Legislaturetakes on such an abstract form that it is not difficult to recognize inthem deontological principles, such as human dignity, solidarity,self-realization, and autonomy.30 The conceptual transformationof basic rights into basic goods means that rights have been maskedby teleology, concealing the fact that in contexts of justificationnorms and values take on different roles in the logic of argumentation.For this reason, postmetaphysical theories of value take in to considerationthe particularity of values, the flexibility of value hierarchies,and the local character of value configurations. They eithertrace values back to traditions and the settled value orientations ofparticular cultures or, if they want to emphasize the subjective anddeliberate character of the choice of values, they trace them toexistential decisions about metapreferences and "higher-ordervolitions."31In the discussions among American constitutional scholars, thedistinction between approaches that conceive basic rights as legalprinciples versus those that see them as values or goods is moreclearly drawn than in the parallel German debate. For example,Paul Brest has clearly marked the opposition between "rightstheories" and the approaches of either moral realism or "moralconventionalism."32 And when john Hart Ely argues against theoriesof constitutional adjudication that attempt to integrate lawwith morality, he, too, distinguishes between the deontologicalunderstanding of law that resorts to suprapositive rights, reason,and neutral procedural principles, on the one hand, and the valueorientedapproach that refers to tradition and settled consensus,on the other. 33A neo-Aristotelian variant of the doctrine of objective values isrepresented in the United States by Michael]. Perry, for example.He conceives the text of the Constitution as a founding charter thatmanifests the ethical self-understanding of a historical community.He thus removes the empiricist features from the moral conventionalismthat sees the basic values of the Constitution as rooted inthe currently dominant value consensus of the mority of thepopulation. Like a sacred text, the Constitution founds new ideas,in the light of which the community is able to perceive its deeperaspirations and its true interests (Interessen) : "On this view, ourpolitical life includes ongoing moral discourse with one another in