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

IllA Reconstructive Approach to Law ltion, which take place in forms of communication that are them-( *selves legally guaranteed.One way we can distinguish the principles of democracy andmorality is by their different levels of reference. The other is by thedifference between legal norms and other action norms. Whereasthe moral principle extends to any norm for whose justificationmoral arguments are both necessary and sufficient, the democraticprinciple is tailored to legal norms. These rules differ from thesimple, more or less quasi-natural norms o£ interaction we find ineveryday life. The legal form in which these norms are clad is arelatively recent product of social evolution. In contrast to naturallyemergent rules, whose validity can be judged solely from the moralpoint of view, legal norms have an artificial character; they constitutean intentionally produced layer of action norms that arereflexive in the sense o£being applicable to themselves. Hence theprinciple of democracy must not only establish a procedure oflegitimate lawmaking, it must also steer the production of the legalmedium itself: The democratic principle must specifY, in accordance :with the discourse principle, the conditions to be satisfied by Jindividual rights in general, that is, by any rights suitable for theconstitution of a legal community and capable of providing themedium for this community's self-organization. Thus, along withthe system o£ rights, one must also create the language in which acommunity can understand itself as a voluntary association of freeand equal consociates under law.Corresponding to the two ways in which we have distinguishedthe principles of democracy and morality, then, are two tasks therequired system of rights is supposed to solve. It should institutionalizethe communicative framework for a rational political willformation,and it should ensure the very medium in which alonethis will-formation can express itself as the common will of freelyassociated legal persons. To specifY this second task, we mustprecisely define the formal characteristics of the medium of law.',,., 1'3.2.2In what follows, I want to elucidate the formal characteristics oflawby means of the complementary relation between law and morality.This elucidation is part of a functional explanation and not a