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

30-· -- -- --·- -·----- ·Chapter 1norms is determined by the degree to which such norms are actedon or implemented, and thus by the extent to which one canactually expect the addressees to accept them. In contrast toconvention and custom, enacted law does not rely on the organicfacticity of inherited forms of life, but on the artificially producedfacticity found in the threat of sanctions that are legally defined andcan be imposed through court action. On the other hand, thelegitimacy of statutes is measured against the discursive redeemabilityof their normative validity claim-in the final analysis, according towhether they have come about through a rational legislative process,or at least could have been justified from pragmatic, ethical,and moral points of view. The legitimacy of a statute is independentof its de facto implementation. At the same time, however, de factovalidity or factual compliance varies with the addressees' belief inlegitimacy, and this belief is in turn based on the supposition thatthe norm could·be justified. The less a legal order is legitimate, oris at least considered such, the more other factors, such as intimidation,the force of circumstances, custom, and sheer habit, muststep in to reinforce it.Generally, the legal system as a whole has a higher measure oflegitimacy than individual legal norms. Ralf Dreier includes thefollowing among the necessary conditions for the validity of a legalsystem:First, [the legal system] must by and large be socially effective and,second, by and large ethically justified. The legal validity of individualnorms [requires] that these are enacted in accordance with a constitutionsatisfYing the above-mentioned criteria. In addition, norms mustindividually display, first, a minimum of social effectiveness or theprospects for such and, second, a minimum of ethical justification or thepotential for such.25The double reference of legal validity to de facto validity asmeasured by average acceptance, on the one hand, and to thelegitimacy o£ the claim to normative recognition, on the other,leaves addressees with the choice of taking either an objectivatingor a performative attitude toward the same legal norm. For arationally choosing actor who expects norms to be enforced, thelegal precept forms a de facto barrier, with calculable conse-