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

101A Reconstructive Approach to Law Ipositive law, on the basis of moral principles, and hence independentlyof that political autonomy of citizens first constituted onlywith the social contract. To this extent the principles of private lawenjoy the validity of moral rights already in the state of nature;hence "natural rights," which protect the human being's privateautonomy, precede the will of the sovereign lawgiver. At least in thisregard, the sovereignty of the "concurring and united will" of thecitizens is constrained by morally grounded human rights. To besure, Kant did not interpret the binding of popular sovereignty byhuman rights as a constraint, because he assumed that no oneexercising her autonomy as a citizen could agree to laws infringingon her private autonomy as warranted by natural law. But thismeans that political autonomy must be explained on the basis of anintemalconnection between popularsovereigntyand human rights.The construct of the social contract is meant to accomplish just this.However, in following a path of justification that progresses frommorality to law, the construction of Kant's Rechtslehre denies to thesocial contract the central position it actually assumes in Rousseau.Rousseau starts with the constitution of civic autonomy and)produces a fortiori an internal relation between popular sover-. eignty and human rights. Because the sovereign will of the peoplecan express itself only in the language of general and abstract laws,it has directly inscribed in it the right of each person to equalliberties, which Kant took as a morally grounded human right andthus put ahead of political will-formation. In Rousseau, then, thexercise of political autonomy no longer stands under the provisoof innate rights. Rather, the normative content of human rightsenters into the very mode of carrying out popular sovereignty. Theunited will of the citizens is bound, through the medium of generaland abstract laws, to a legislative procedure that excludes per se allnongeneralizable interests and only admits regulations that guaranteeequal liberties for all. According to this idea, the procedurallycorrect exercise of popular sovereignty simultaneously secures thesubstance of Kant's original human right.However, Rousseau does not consistently carry through with thisplausible idea, because he owes a greater debt to the republicantradition than does Kant. He gives the idea of self-legislation moreof an ethical than a moral interpretation, conceiving autonomy as