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

283Judiciary and Legislaturevalues that conflict with one another without prospects for consensusmust be balanced in a way that cannot be achieved throughethical discourses-even if the results of bargaining are subject tothe proviso that they not violate a culture's consensus on basicvalues. The required balance of competing interests comes aboutas a compromise between parties that may rely on power andmutual threats. Legitimate bargaining certainly depends on theprior stipulation of fair terms, and it presupposes a willingness tocooperate, that is, to observe the rules of the game so as to arrive atresults acceptable for all parties on the basis of their differentpreferences. Moreover, the debate over such regulations shouldtake place according to the forms of rational discourse that neutralizepower. Bargaining itself, however, may well allow for strategicinteractions.Furthermore, the deliberative mode oflegislative practice is notintended simply to ensure the ethical validity of statutes. Rather,one can understand the complex validity claim of legal norms asthe claim, on the one hand, to take into consideration strategicallyasserted particular interests in a manner compatible with thecommon good and, on the other hand, to bring universalisticprinciples of justice into the horizon of a specific form o£ lifeimbued with particular value constellations. By acquiring a bindingcharacter for a specific legal community, these principles of a"locationless" transcultural morality also take up abode in thoseabstract systems of action that can no longer be sufficiently integratedsimply through the informal contexts of communicativeaction. In contrast to the ethical constriction of political discourse,the concept of deliberative politics acquires an empirical referenceonly when we take account of the variety of communicative forms,arguments, and institutionalized legal procedures.We have already seen how legal adjudication unwraps, for thepurposes o£ application, these variegated arguments that havealready entered into the lawmaking process and provided a rationalbasis for the legitimacy claims of established law. In these legaldiscourses, moral and ethical, empirical and pragmatic reasonscome into play besides doctrinal considerations immanent to law.If one looks at the democratic genesis oflaw from the other sidethatis, from the side of legislation-one can again see the various