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

126· ---· -- --- .. ··------··Chapter 3working out, what we might call a "general right to individualliberties," however these may be specified. Similarly, the prohibitionagainst extradition, the right to political asylum, and everythingpertaining to the rights and duties of citizens (i.e., theirmaterial legal status) specify membership in a voluntary associationof free and equal legal persons. Finally, the guarantees of equalprotection and legal remedies are interpreted through proceduralguarantees and basic legal standards. These include the prohibitionsagainst retroactive punishment, double jeopardy, and ad hoccourts, as well as the guarantee of an independentjudiciary, and soon.We must hold on to two things: on the one hand, the first threecategories of rights are unsaturated placeholders for the specificationof particular basic rights; they are thus more like legal principlesthat guide the framers of constitutions. On the other hand,these framers must, without prejudice to their sovereignty; orientthemselves by the above-mentioned principles insofar as they makeuse of the legal medium at all. For these principles give teeth towhat Hobbes and Rousseau found so important: the rationalizingcharacter of the legal form as such.( 4) In the genesis of rights so far, we have admittedly brought the· discourse principle into the legal form only from the outside, as itwere, that is, from the vantage point of the political theorist. Thephilosopher tells citizens which rights they should acknowledgemutually if they are legitimately to regulate their living together bymeans of positive law. This explains the abstract nature of the legalcategories discussed so far. We must now make that change inperspective necessary if citizens are to be capable of applying thediscourse principle for themselves. For as legal subjects they achieveautonomy only by both understanding themselves as, and acting as,authors of the rights they submit to as addressees. To be sure, asl legal subjects, they may no longer choose the medium in which they, can actualize their autonomy. They no longer have a choice about\ which language they might want to use. Rather, the legal code isgiven to legal subjects in advance as the only language in which theyI 1 can express their autonomy. The idea of self-legislation must be realized in the medium of law itself. Hence the conditions under.which citizens can judge whether the law they make is legitimate (inl