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

84Chapter 3tive expectation of an orientation to the common good, becausethis procedure can draw its legitimating force only from a processin which citizens reach an understanding about the rules for theirliving together. In modern societies as well, the law can fulfill thefunction of stabilizing behavioral expectations only if it preservesan internal connection with the socially integrating force of communicativeaction.I want to elucidate this puzzling connection between privateliberties and civic autonomy with the help of the discourse conceptof law. This connection involves a stubborn problem, which I willfirst discuss in two different contexts. Thus far no one has succeededin satisfactorily reconciling private and public autonomy ata fundamental conceptual level, as is evident from the unclarifiedrelation between individual rights and public law in the field ofjurisprudence, as well as from the unresolved competition betweenhuman rights and popular sovereignty in social-contract theory(section 3.1). In both cases the difficulties stem not only fromcertain premises rooted in the philosophy of consciousness but alsofrom a metaphysical legacy inherited from natural law, namely, thesubordination of positive law to natural or moral law. In fact,however, positive law and postconventional morality emerge co-. originally from the crumbling edifice of substantial ethical life.Kant's analysis of the form oflaw provides an occasion to discuss therelation between law and morality, in order to show that theprinciple of democracy must not be subordinated to the moralprinciple, as it is in Kantian legal theory (section 3.2). Only afterthis preliminary spadework can I ground the system of rights withthe help of the discourse principle, so that it becomes clear whyprivate and public autonomy, human rights and popular sovereignty,mutually presuppose one another (section 3.3).3.1 Private and Public Autonomy, Human Rights and PopularSovereignty3.1.1In German civil-law jurisprudence, which in Germany has beendecisive for the understanding of law in general, the theory of