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

110----- ----- -· ----Chapter 3··...:..takes privately, to a public practice implemented by all persons incommon. Besides, allocating the jurisdictions of morality and lawaccording to private and public spheres of action is counterintuitivein any event, for the simple reason that the will-formation of thepolitical legislator has to include the moral aspects of the matter inneed of regulation. Indeed, in complex societies, morality canbecome effective beyond the local level only by being translatedinto the legal code.To obtain sufficiently selective criteria for the distinction betweenthe principles of democracy and morality, I start with the factthat the principle of democracy should establish a procedure of:legitimate lawmaking. Specifically, the democratic principle states1 th at only those statutes may claim legitimacy that can meet with theassent (Zustimmung) of all citizens in a discursive process oflegislationthat in turn has been legally constituted. In other words, thisprinciple explains the performative meaning of the practice of selfdeterminationon the part of legal consociates who recognize oneanother as free and equal members of an association they havejoined voluntarily. Thus the principle of democracy lies at another\ level than the moral principle.Whereas the moral principle functions as a rule of argumenta-. tion for deciding moral questions rationally, the principle ofdemocracy already presupposes the possibility of valid moral judgments.Indeed, it presupposes the possibility of all the types ofpractical judgments and discourses that supply laws with theirlegitimacy. The principle of democracy thus does not answer thequestion whether and how political affairs in general can behandled discursively; that is for a theory of argumentation toanswer. On the premise that rational political opinion- and willformationis at all possible, the principle of democracy only tells ushow this can be institutionalized, namely, through a system ofrights that secures for each person an equal participation in aprocess of legislation whose communicative presuppositions areguaranteed to begin with. Whereas the moral principle operates atthe level at which a specific form of argumentation is internallyconstituted, the democratic principle refers to the level at whichinterpenetrating forms of argumentation are externally institutionalized.At this latter level, provisions are made for an effectiveparticipation in discursive processes of opinion- and will-forma-