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

100Chapter 3Frank Michelman, for example, sees in the American constitutionaltradition a tension between the impersonal rule of lawfounded on innate human rights and the spontaneous self-organizationof a community that makes its law through the sovereign will\ of the people.30 Tqis tension, however, can be resolved from oneside or the other. Liberals invoke the danger of a "tyranny of themajority" and postulate the priority of human rights that guaranteethe prepolitical liberties of the individual and set limits on thesovereign will of the political legislator. The proponents of a civicrepublicanism, on the contrary, emphasize the intrinsic,noninstrumentalizable value of civic self-organization, so that humanrights have a binding character for a political community onlyas elements of their own consciously appropriated tradition.Whereas on the liberal view human rights all but impose them­elves on our moral insight as something given, anchored in afictive state of nature, according to republicans the ethical-politicalwill of a self-actualizing collectivity is forbidden to recognize anythingthat does not correspond to its own authentic life project. Inthe one case, the moral-cognitive moment predominates, in theother, the ethical-volitional. Byway of contrast,!Rousseau and Kant !pursued the goal of conceiving the notion of autonomy as unifYing /· practical reason and sovereign will in such a way that the idea of \human rights and the principle of popular sovereignty wouldmutually interpret one another. Nevertheless, these two authorsalso did not succeed in integrating the two concepts in an evenlybalanced manner. On the whole, Kant suggests more of a liberalreading of political autonomy, Rousseau a republican reading.Kant obtains the "universal principle of law" by applying themoral principle to "external" relations. He begins his Elements ofJustice with the one right owed to each human being "by virtue ofhis humanity," that is, the right to equal individual liberties backedby authorized coercion. This primordial right regulates "internalproperty"; applying this to "external property" yields the privaterights of the individual (which then become the starting point forSavigny and the German civil-law jurisprudence subsequent toKant) _31 This system of natural rights, which "one cannot give upeven if one wanted to,"32 belongs "inalienably" to each humanbeing. It is legitimated, prior to its differentiation in the shape of