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

27Law as Social Mediation between Facts and Normsactions. The paradoxical nature of such regulation is revealed inlight of the premise that facticity and validity have split apart, forthe acting subjects themselves, into two mutually exclusive dimensions.For self-interested actors, all situational features are transformedin to facts they evaluate in the light of their own preferences,whereas actors oriented toward reaching understanding rely on ajointly negotiated understanding of the situation and interpret therelevant facts in the light of intersubjectively recognized validityclaims. However, if the orientations to personal success and toreaching understanding exhaust the alternatives for acting subjects,then norms suitable as socially integrating constraints onstrategic interactions must meet two contradictory conditions that,from the viewpoint of the actors, cannot be simultaneously satisfied.On the one hand, such rules must present de facto restrictions ·that alter the relevant information in such a way that the strategicactor feels compelled to adapt her behavior in the objectivelydesired manner. On the other hand, they must at the same timedevelop a socially integrating force by imposing obligations on theaddressees-which, according to my theory, is possible only on thebasis of intersubjectively recognized normative validity claims.According to the above analysis, the type of norms requiredwould have to bring about willingness to comply simultaneously bymeans of de facto constraint and legitimate validity. Norms of thiskind would have to appear with an authority that once again equipsvalidity with the force of the factual, only this time under thecondition of the polarization already existing between actionoriented to success and that oriented to reaching understanding,which is to say, under the condition of a perceived incompatibility offacticity and validity. As we have already assumed, the metasocialguarantees of the sacred have broken down, and these guaranteesare what made the ambivalent bonding force of archaic institutionspossible, thereby allowing an amalgam of validity and facticity inthe validity dimension itself. The solution to this puzzle is found inthe system of rights that lends to individual liberties the coerciveforce oflaw. We can then also see, from a historical perspective, thatthe core of modern law consists of private rights that mark out thelegitimate scope of individual liberties and are thus tailored to thestrategic pursuit of private interests.