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

79The Sociology of Law vs. the Philosophy of.Justiceadministration tend to close themselves off from their environmentsand obey only their internal imperatives of money andadministrative power. They explode the model of a legal communitythat determines itself through the common practice of associatedcitizens. Built into the very status of citizenship in welfare-statedemocracies is the tension between a formal extension of privateand civic autonomy, on the one hand, and a "normalization," inFoucault's sense, that fosters the passive enjoyment of paternalisticallydispensed rights, on the other .58 Hence, a sociology that wouldremain sensitive to tensions of this sort must not renounce arational reconstruction of civil rights from the internal perspectiveof the legal system. Even Parsons, in the basic concepts of hissystems theory, levels out what Weber reconstructed as the rationalizationof law. That is, he treats "inclusion" and "value generalization"as normatively neutral dimensions of system integration; as aresult, the concept of law embodied in the modern constitutionalstate loses, in Parsons's approach, both its normative content andits focus on social integration."9To forestall such levelings, in the two following chapters I firstreconstruct the normative content of citizenship by analyzing thesystem of rights and the principles of the constitutional state froma discourse-theoretic point of view. However, in so doing I try toavoid an ambiguity prevalent in philosophical discussions of justice.This ambiguity is suggested in the German tradition by theterms Recht (law) and Rechte (rights). We speak of "rights" in botha moral and a legal sense. I would like instead to distinguish law andmorality from the start; unlike Rawls, I am not satisfied with thedistinction between political justice and morality, both of which lieat the same level of purely normative validity claims. By "law" Iunderstand modern enacted law, which claims to be legitimate interms of its possible justification as well as binding in its interpretationand enforcement. Unlike postconventional morality, lawdoes not just represent a type of cultural knowledge but constitutesat the same time an important core of institutional orders. Law istwo things at once: a system of knowledge and a system of action.It is equally possible to understand law as a text, composed oflegalpropositions and their interpretations, and to view it as an institution,that is, as a complex of normatively regulated action. Because