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

50Chapter 2of behavior that, unwilling to learn,just persists of its own accord.They do not think of behavior that chooses the same strategy whilerelying on the prevailing morality, institutions, or law. This shedslight on the fact that nonlearning first loses its pathological characterin social norms."10 The difference between "is" and "ought,"between truth and normative validity, is reduced to two possibleways of reacting-learning and nonlearning-which representalternatives only in the area of cognitive expectations. Cognitiveexpectations are then considered "normative" if one is not willingto revise them in the event of their disappointment. By setting upits basic concepts this way, functionalist sociology blinds itself to themeaning of the complex mode of validity found in law.Only this empiricist reinterpretation of the normative aspects oflaw makes it plausible to assume that the legal system is detachedfrom all internal relations to morality and politics. This approach,moreover, prejudices the analysis in such a way that "law" is reducedto the special function of the administration of law. One therebyloses sight of the internal connection between law and the constitutionalorganization of the origin, acquisition, and use of politicalpower.In sum, the decisive move is the objectivation of law into anautopoietic system. Described in this way, legal communication isrobbed of its socially integrative meaning. Legal norms and legal actsthereby lose all connection with the supposition of rationallymotivated processes of reaching understanding within an associationoflegal consociates. By describing the conflict-resolving capacityoflaw as a purely systemic capacity, social integration through lawis assimilated to the model of an objective, unintentional coordination.Even the validity claims and reasons put forth in legal discoursesthereby forfeit their intrinsic value. As so described, themeaning of legal arguments is exhausted by their function ofreducing the surprise value of court decisions (which find theirmotivation elsewhere) and increasing the actual acceptance ofsuch decisions by clients. What counts for participants as 'justification"shrinks, from the viewpoint of the sociological observer, tonecessary fictions: "Because reasons are hard to replace as guarantorsfor complex legal decisions, it appears to lawyers as if reasonsjustify the decision and not decisions the reasons."11 In systems