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

393Paradigms of Lawcentury or today. Social vision embraces not only empirical observations(the number of auto accidents), but also evaluative characterizations ofevents (the absence of free choice in a given context) and feelings ofdisapproval or empathy towards what is described (a "sharp" bargain, ora "tragic" loss).9Lately, the phenomenon of an unavoidable background understandingof society has come to represent more than the object ofdescriptive legal history. Legal commentators and practitionersthemselves have become aware of this phenomenon. Today, adjudicationcan no longer have a naive attitude toward its own socialmodel. Because the paradigmatic legal understanding has lost theinnocence of an orienting knowledge that operates behind theactors' backs, it invites a self-critical justification. Even specializeddoctrinal commentary can no longer evade the question about the ·"correct" paradigm, now that this reflexive impulse has been felt.Hence Kubler's initially descriptive approach to the issue takes aconstructivist turn when he concludes "that it is increasingly urgentthat private law explain and justify its relations to society as a whole,that is, its emergence from and functioning in society." The reasonis that "the conventional attempts at explanation," whether thoseof the liberal or of the social-welfare model, "are no longer sufficientlyconvincing. "10 The desired paradigm should satisfy the bestdescription of complex societies; it should illuminate once againthe original idea of the self-constitution of a community of free andequal citizens; and it should overcome the rampant particularismof a legal order that, having lost its center in adapting to theuncomprehendedcomplexity of the social environment, is unravelingbit by bit. In addition, the fixation on the judge's image of societysuggests that jurisprudence has to solve this task on its own.However, the historian's decision to make use of the more readilyavailable data of black-letter law and its application, althoughcertainly a reasonable research technique, must not mislead oneinto identifying the paradigm inscribed in a specific legal systemwith the conceptual economy of its professional custodians. Otherwiseone is easily led to conclude that simply through interdisciplinarycooperation with the social sciences, a critical jurisprudencecan isolate the constructive function "of the judicial ideas summarizedby the notion of a 'theory"' and then develop this into a