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

260--- ---------Chapter 6counterintuitively equates legal norms and principles with interests,goals, goods, and values:In that case, constitutional guarantees ofliberty find themselves competingwith "principles" that are opposed, not only in their content but evenin their entire structure, such as the functional efficiency of the criminaljustice system, the functional capacity of the Armed Forces, or thefunctional capacity of business ventures and economic sectors . ... TheFederal Constitutional Court transforms these (and the other) collectivegoods into immediate constitutional mandates that the legislator iscompelled to carry out, determining in each situation what the costs arein terms of rights and individual liberties.39By contrast, as soon as the deontological character of basic rightsis taken seriously, they are withdrawn from such a cost-benefitanalysis. This also holds for "open " norms that, unlike conditionalprograms, do not refer to easily identifiable standard cases butinstead remain unspecified and thus require "concretization" in amethodologically unobjectionable sense. These norms find theirunambiguous specification precisely in discourses of application.In the case of a collision with other legal regulations, one does nothave to decide to what extent the competing values are respectivelyoptimized. As already shown, the task is rather to examine prima·facie applicable norms in order to find out which one is mostsuitable to the case at hand, once the situational features of the casehave been described as exhaustively as possible from all normativelyrelevant points of view. In the process, one must establish aplausible connection between the pertinent norm and the normsthat-without diminishment in their general validity-do not prevail,so that the coherence of the rule system as a whole remainsunaffected. The pertinent norm and those that give way do notrelate to each other like competing values, which, as optimizingprescriptions, are "fulfilled" to different degrees depending on thecase. Rather, the relation is that between "appropriate " and "inappropriate" norms. Here appropriateness has the same meaning asthe validity of a singular judgment that, derived from a validgeneral norm, first allows this underlying norm to become fully"saturated."An adjudication oriented by principles has to decide which claimand which action in a given conflict is right-and not how to