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

89A Reconstructive Approach to Law Iemerge co-originally with "objective" law, to use the terminology ofGerman jurisprudence. However, a statist understanding of objectivelaw is misleading, for the latter first issues from the rights thatsubjects mutually acknowledge. In order to make clear theintersubjective structure of relations of recognition that underliesthe legal order as such, it is not enough to append social rightsadditively. Both the idealist beginnings and the positivist offshootsof German civil-lawjurisprudence from Savigny to Kelsen misjudgethis structure.As we have seen, private-law theory (as the doctrine of"subjectiveright") got started with the idea of morally laden individual rights,which claim normative independence from, and a higher legitimacythan, the political process of legislation. The freedom-securingcharacter of rights was supposed to invest private law with amoral authority both independent of democratic lawmaking andnot in need ofjustification within legal theory itself. This sparkeda development that ended in the abstract subordination of"subjective"rights to "objective" law, where the latter's legitimacy finallyexhausted itself in the legalism of a political domination construedin positivist terms. The course of this discussion, however, concealedthe real problem connected with the key position of privaterights: the source from whence enacted law may draw its legitimacyis not successfully explained. To be sure, the source of all legitimacylies in the democratic lawmaking process, and this in turn calls onthe principle of popular sovereignty. But the legal positivism, orGesetzespositivismus, propounded in the Weimar period by professorsof public law does not introduce this principle in such a waythat the intrinsic moral content of the classical liberties-theprotection of individual freedom emphasized by Helmut Coingcouldbe preserved. In one way or another, the intersubjectivemeaning of legally defined liberties is overlooked, and with it therelation between private and civic autonomy in which both momentsreceive their full due.3.1.2Trusting in an idealist concept of autonomy, Savigny could stillassume that private law, as a system of negative and proceduralrights that secure freedom, is legitimated on the basis of reason,