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

91--- - "" ____ " _____ _A Reconstructive Approach to Law Iself-interested decisions of rational egoists or, as Kant will put it, a"race of devils." The utilitarian grounding of the bourgeois orderof private law-that this type of market society makes as manypeople as possible well off for as long as possible20-bestowsmaterial justice on the sovereignty of a ruler who by definition cando nothing unlawful.However, to carry out his intended demonstration, Hobbes mustdo more than simply show why such an order equally satisfies theinterests of all participants ex post facto, that is, from the standpointof readers who already find themselves in a civil society. Hemust in addition show why such a system could be preferred in thesame way by each isolated, purposive-rational actor while still in thestate of nature. Because Hobbes ascribes the same success-orientedattitude to the parties in the state of nature as private law ascribesto its addressees, it seems reasonable to construe the original act ofassociation along the lines of an instrument available in private law,the contract-specifically, to construe this act as a civil contract inwhich all the parties jointly agree to install (but not to bind) asovereign. There is one circumstance Hobbes does not considerhere. Within the horizon of their individual preferences, thesubjects make their decisions from the perspective of the firstpersonsingular. But this is not the perspective from which partiesin a state of nature are led, on reflection, to trade their natural, thatis, mutually conflicting but unlimited, liberties for precisely thosecivil liberties that general laws at once limit and render compatible.Only under two conditions would one expect subjects in the stateof nature to make a rationally motivated transition from their stateof permanent conflict to a cooperation under coercive law thatdemands a partial renunciation of freedom on the part of everyone.On the one hand, the parties would have to be capable of understandingwhat a social relationship based on the principle ofreciprocity even means. The subjects of private law, who are at firstonly virtually present in the state of nature, have, prior to allassociation, not yet learned to "take the perspective of the other"and self-reflexively perceive themselves from the perspective of asecond person. Only then could their own freedom appear to themnot simply as a natural freedom that occasionally encounters