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

259Judiciary and Legislatureerected in legal discourse by a deontological understanding oflegal norms and principles collapses.As soon as rights are transformed into goods and values in anyindividual case, each must compete with the others at the samelevel for priority. Every value is inherently just as particular as everyother, whereas norms owe their validity to a universalization test. AsDenninger puts it, "Values can only be relativized by other values;this process of preferring or pursuing values, however, resistsattempts at logical conceptualization."37 This is one reason whyDworkin regards rights as "trumps" that one can play against policyarguments in legal discourse. True, notevery rightwill win out overevery collective good in the justifications of concrete decisions. Buta right will not prevail only when the priority of a collective goodover a corresponding norm can itself be justified in the light ofhigher norms or principles. Because norms and principles, invirtue of their deontological character, can claim to be universallybinding and not just specially preferred, they possess a greaterjustificatory force than values. Values must be brought into atransitive order with other values from case to case. Because thereare no rational standards for this, weighing takes place eitherarbitrarily or unreflectively, according to customary standards andhierarchies. 3RInsofar as a constitutional court adopts the doctrine of an objectiveorder of values and bases its decision making on a kind of moralrealism or moral conventionalism, the danger of irrational rulingsincreases, because functionalist arguments then gain the upperhand over normative ones. Certainly, there are a number of"principles" or collective goods that represent perspectives fromwhich arguments can be introduced into a legal discourse in casesof norm collision: for example, the "functional capacity" of thearmed forces or the judicial system, "peace" within specific domains(e.g., in labor relations), the "security of the state as guarantoroflaw and order," and fidelity to the principle of federalism (orthe "federal comity" of government agencies, Bundestreu) . Butarguments based on such collective goods and values "count" onlyas much as the very norms and principles by which these goals canin turn be justified. In the final instance, only rights can be trump inthe argumentation game. This difference is leveled out if one