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

127A Reconstructive Approach to Law I- --- · ---------- ·------light of the discourse principle) must in turn be legally guaranteed. IThis end is served by the basic political rights to participate in /processes that form the legislator's opinion and will.After this change in perspective, we can no longer ground equalcommunicative and participatory rights from our vantage point. Thecitizens themselves become those who deliberate and, acting as aconstitutional assembly, decide how they must fashion the rightsthat give the discourse principle legal shape as a principle ofdemocracy. According to the discourse principle,just those normsdeserve to be valid that could meet with the approval of thosepotentially affected, insofar as the latter participate in rationaldiscourses. Hence the desired political rights must guaranteeparticipation in all deliberative and decisional processes relevantto legislation and must do so in a way that provides each personwith equal chances to exercise the communicative freedom to takea position on criticizable validity claims. Equal opportunities forthe political use of communicative freedoms require a legallystructured deliberative praxis in which the discourse principle isapplied. Just as communicative freedom prior to any institutionalizationrefers to appropriate occasions for the use of languageoriented toward mutual understanding, so also do political rightsinparticular, entitlements to the public use of communicativefreedom-call for the legal institutionalization of various forms ofcommunication and the implementation of democratic procedures.These are meant to guarantee that all formally andprocedurally correct outcomes enjoy a presumption oflegitimacy.Rights of equal participation for each person thus result from asymmetrical juridification of the communicative freedom of allcitizens. And this freedom in turn requires forms of discursiveopinion- and will-formation that enable an exercise of politicalautonomy in accordance with political rights.If one introduces the system of rights in this way, then one canunderstand how popular sovereignty and human rights go hand inhand, and hence grasp the co-originality of civic and privateautonomy. The scope of citizens' public autonomy is not restrictedby natural or moral rights just waiting to be put into effect, nor isthe individual's private autonomy merely instrumentalized for thepurposes of popular sovereignty. Nothing is given prior to the---1