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

117-- --A Reconstructive Approach to Law Imoral demands, on the one hand, and organizational constraintsand resistances to change, on the other. Thus the moral demandsthat can be fulfilled only through anonymous networks and organizationsfirst find clear addressees only within a system of rules thatcan be reflexively applied to itself. Law alone is reflexive in its ownright; it contains secondary rules that serve the production ofprimary rules for guiding behavior. It can define jurisdictionalpowers and found organizations-in short, produce a system ofaccountabilities that refers not only to natural, legal persons but tofictive, legal subjects, such as corporations and public agencies.Similar to the problems of reasonable expectability, weakness ofwill, and decidability, the question o£ the moral division of labor43announces the limits of a postconventional morality, the pointwhere supplementation by law becomes functionally necessary. Afurther problem results from the fact that the postconventionallevel ofjustification removes the foundation for traditional modesoflegitimating institutions. As soon as the more demanding moralstandards can no longer be naively established, an impulse to raisequestions arises, putting pressure on devalued traditional institutionsto justifY themselves. But the morality that supplies the criteriafor the disillusioning assessment o£ existing institutions does notitself offer any operative means for their reconstruction. To this end,positive law stands in reserve as an action system able to take theplace of other institutions.To be sure, the law recommends itself not only for the reconstructionof quasi-natural institutional complexes that have fallen intodisrepair as a result of their loss of legitimation. In the course ofsocial modernization, a new kind of organizational need arises,which can only be managed constructively. Traditional spheres ofinteraction, such as the family or school, are refashioned at theirinstitutional base, whereas formally organized action systems, suchas markets, businesses, and administrations, are first created throughlegal regulation. The capitalist economy or bureaucratic agenciesfirst come to exist in the legal medium in which they are institutionalized.Despite what the previously examined problems might suggest,of course, the need of morality for compensation is not enough toexplain the specific achievements of the legal code that are n;-