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

392Chapter 99.1 The Materialization of Private Law9.1.1Expressions like "social ideal," "social model," "social vision," andeven simply "theory" have become generally accepted ways ofreferring to a social epoch's paradigmatic understanding of law.Such expressions refer to those implicit ideas or images of one'sown society that provide a perspective for the practices of makingand applying law. These images orient the project of realizing anassociation of free and equal citizens. However, the historicalstudies of changes in legal paradigms-as well as doctrinal contributionsto the paradigm debate-are limited to professional interpretationsof existing law. A paradigm is discerned primarily inimportant court decisions and usually equated with the judge 'simplicit image of society. For example, Friedrich Kubler, relying onthe phenomenological sociology of knowledge, speaks of the"social construction of reality" that underlies judgments offacts inlegal discourse, that is, how factual courses of events and thefunctioning of social action systems are described and evaluated:"The 'facts' are mutually related behavioral expectations and. motivations, human interactions, small particles from the greatstream of richly interwoven social events. More precisely, they arenot these sequences of events themselves but the ideas the courtforms of these events."8 Henry J. Steiner calls judges' implicittheory of society a "social vision." It forms the context wheneverjudges, in justifYing their decisions, ascertain facts and relate theseto norms: "By social vision . .. I mean perceptions of courts aboutsociety (its socioeconomic structure, patterns of social interaction,moral goals, and political ideologies), about social actors (theircharacter, behavior, and capacities), and about accidents (theircauses, volume and toll)." Steiner goes on to explain this conceptwith reference to American adjudication on accident law:The concept then includes courts' understanding about matters as variedas the incidence and social costs of accidents, the operation of marketpricing mechanisms, the capacity of individuals for prudent behavior, thebureaucratic rationality of business forms, the effects of standard clausesin contracts, and ideologies of growth or distribution in the nineteenth