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

105A Reconstructive Approach to Law Iof rights and the communicative structure of self-legislation seriouslyand explicate them appropriately. Before I can attempt to dothis and introduce the system of rights from a discourse-theoreticstandpoint, however, the relation between law and morality mustbe explained. The difficulties analyzed above are not due exclusivelyto the false course set by the philosophy of consciousness.They also follow from the fact that modern natural law, in preservingthe distinction between natural and positive law, assumed aburden of debt from traditional natural law. It holds on to aduplication of the concept of law that is sociologically implausibleand has normatively awkward consequences. Rather than subordinatepositive law to natural law or morality, I start with the assumptionthat at the postmetaphysical level of justification, legal andmoral rules are simultaneously differentiated from traditional ethicallife and appear side by side as two different but mutually complementarykinds of action norms. In accordance with this, theconcept of practical reason must be understood so abstractly thatit can assume a specifically different meaning depending on whichkind of norm is at issue: the meaning of a moral principle, on theone hand, and that of a principle of democracy, on the other. If onethereby avoids a moralistic constriction of the concepts of reasonand autonomy, then the Kantian principle oflaw loses its mediatingfunction; instead, it serves to clarify the formal aspects under whichlegal rules differ from moral ones. Human rights, too, which areiinscribed in citizens' practice of democratic self-determination,must then be conceived from the start as rights in the juridicalsense, their moral content notwithstanding.In his "Introduction to the Metaphysics of Morals," Kant pro-)ceeds differently. 5 He starts with the basic concept of the moral lawand obtains juridical laws from it by way of limitation. Moral theorysupplies the overarching concepts: will and free choice, action andincentive, duty and inclination, law and legislation serve in the firstplace to characterize moral judgment and action. In the legaltheory, these basic moral concepts undergo limitations in threedimensions. According to Kant, the concept of law does not referprimarily to free will but to the free choice of the addressees;furthermore, it pertains to the external relations of one person toanother; finally, it is furnished with the coercive power that one