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

57The Sociology of Law vs. the Philosophy of Justiceother direction. Not only among philosophers and legal theorists,but among economists as well, a discourse has gotten under waythat unabashedly picks up on theories of the seventeenth andeighteenth centuries, as though one could ignore the disenchantmentoflaw in social science. Lacking metacritical references to thechange in perspective brought about by political economy andsocial theory, the direct resumption of natural-law argumentationhas torn down the bridges between the two universes of discourse.In the meantime, however, questions concerning the "impotenceof the ought" have again become urgent in the normative discourse.Such questions once motivated Hegel to study Adam Smithand David Ricardo in order to assure himself that the conflictriddenmarket society could be conceived as a moment in theactuality of the ethical Idea.23 In light of this,John Rawls's interestin the conditions for the political acceptance of his theory ofjustice, a theory first developed in vacuo, likewise appears as thereturn of a repressed problem. At stake is the old problem of howthe rational project of a just society, in abstract contrast to an obtusereality, can be realized after confidence in the dialectic of reasonand revolution, played out by Hegel and Marx as a philosophy ofhistory, has been exhausted-and only the reformist path of trialand error remains both practically available and morally reasonable.24In his Theory of justice, Rawls developed the idea of a "wellordered"society under the conditions of modern life. This is asystem that makes possible the just cooperation of free and equalcitizens. The basic institutions of such a society must be set upaccording to a scheme that deserves the rationally motivated assentof all citizens because it can be grounded in justice as fairness. Ingrounding the two highest principles of justice, Rawls follows thesocial-contract model. He proposes a procedure that can be understoodas explicating the point of view for an impartial judgment ofmorally substantive questions of political justice. In the "originalposition," the parties involved in the process of justification aresubject to precisely those restrictions (including, inter alia, equality,independence, and ignorance of one's own position in a futuresociety) that guarantee that all arrangements grounded in purposive-rationalconsiderations are at the same time in the interest of