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

258Chapter 6an effort to achieve ever more insightful answers to the question ofwhat are our real interests, as opposed to our actual preferences,and thus what sort of persons-with what projects, goals, idealsoughtwe to be . ... Deliberative politics is an essential instrumentof self-knowledge."34 The ethical-political discourse in which citizensachieve self-understanding finds its sharply honed expressionin a value-oriented constitutional adjudication that hermeneuticallyappropriates the originary meaning of the Constitution by creativelyactualizing that meaning in view of changing historicalchallenges. In a still more pronounced fashion than the Germanlegal hermeneutics following Gadamer, Perry sees the constitutionaljudge in the role of a prophetic teacher, whose interpretationof the divine word of the Founding Fathers secures thecontinuity of a tradition that is constitutive of the community's life.To do this, the judge must neither rigidly adhere to the strictwording nor depend on majority convictions: "To 'interpret' someprovisions of the Constitution is, in the main, to ascertain theiraspirational meaning and then to bring that meaning to bear-thatis, to answer the question of . .. what that aspiration means for theconflict at hand, what that aspiration, if accepted, requires thecourt to do. "35In fact, this kind of value jurisprudence raises the legitimationproblem that Maus and Bockenforde analyze with respect to thedecision-making practice of the Federal Constitutional Court.According to that reading, it is necessary for the court to concretizenorms in a manner equivalent to implicit lawmaking, which givesconstitutional adjudication the status of a competing legislation.Perry boldly draws this conclusion from his moral realist interpretationof fundamental rights, which converts such rights fromdeontological legal principles into teleological legal interests orgoods (Rechtsgilter) constituting an objective order of values. Thesegoods bind both the judiciary and the legislature to the substantialethos (Sittlichkeit) of a specific form of life: 'Judicial review is adeliberately countermajoritarian institution."36By assuming it should strive to realize substantive values pregivenin constitutional law, the constitutional court is transformed intoan authoritarian agency. For if in cases of collision all reasons canassume the character of policy arguments, then the fire wall