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

93_, ___ , , ___ _____ , __ ____ ________A Reconstructive Approach to Law Imerely egocentric attitude from the parties concluding a socialcontract in the state of nature: "the contract establishing a civilconstitution ... is of so unique a kind that . .. it is in principleessentially different from all others in what it founds."23 Whereasparties usually conclude a contract "to some determinate end," thesocial contract is "an end in itself." It grounds "the right of men [tolive] under public coercive law, through which each can receive hisdue and can be made secure from the interference of others."24 InKant's view the parties do not agree to appoint a sovereign to whomthey cede the power to make laws. Rather, the social contract isunique in not having any specific content at all; it provides insteadthe model for a kind of sociation ruled by the principle oflaw. It laysdown the performative conditions under which rights acquirelegitimate validity, for "right is the limitation of each person's ·freedom so that it is compatible with the freedom of everyone,insofar as this is possible in accord with a general law."25Under this aspect, the social contract serves to institutionalize thesingle "innate" right to equal liberties. Kant sees this primordialhuman right as grounded in the autonomous will of individualswho, as moral persons, have at their prior disposal the socialperspective of a practical reason that tests laws. On the basis of thisreason, they have moral-and not just prudential-grounds fortheir move out of the condition of unprotected freedom. At thesame time, Kant sees that the "single human right" must differentiateitself into a system of rights through which both "the freedom ofevery member of society as a human being" as well as "the equalityof each member with every other as a subject" assume a positiveshape.26 This happens in the form of"public laws," which can claimlegitimacy only as acts ofthe public will of autonomous and unitedcitizens: establishing public law "is possible through no other willthan that belonging to the people collectively (because all decidefor all, hence each for himself) ; for only to oneself can one neverdo injustice."27 Because the question concerning the legitimacy offreedom-securing laws must find an answer within positive law, thesocial contract establishes the principle of law by binding thelegislator's political will-formation to conditions of a democraticprocedure; under these conditions the results arrived at in conformitywith this procedure express per se the concurring will or