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

129A Reconstructive Approach to Law Iconstitutional interpretation do these rights first enter into con- )sciousness at all. In fact, when citizens interpret the system of rightsin a manner congruent with their situation, they merely explicatethe performative meaning of precisely the enterprise they took upas soon as they decided to legitimately regulate their common lifethrough positive law. An enterprise of this sort presupposes nomore than the concept of legal form and an intuitive understandingof the discourse principle. Iftalkof"the" system of rights meansanything, then, it refers to the points where the various explicationsof the given self-understanding of such a practice converge( ubereinstimmen). Even "our" theoretical introduction to civil rightsin abstracto is exposed ex post facto as an artifice. No one can creditherself with access to a system of rights in the singular, independentof the interpretations she already has historically available. "The" ·system of rights does not exist in transcendental purity. But twohundred years of European constitutional law have provided uswith a sufficient number of models. These can instruct a generalizingreconstruction of the intuitions that guide the intersubjectivepractice of self-legislation in the medium of positive law. Thecharacter of constitutional foundings, which often seal the successof political revolutions, deceptively suggests that norms outside oftime and resistant to historical change are simply "stated." Thetechnical priority of the constitution to ordinary laws belongs to thesystematic elucidation of the rule oflaw, but it only means that thecontent of constitutional norms is relatively fixed. As we will see,every constitution is a living project that can endure only as anongoing interpretation continually carried forward at all levels ofthe production of law.By securing both private and public autonomy in a balancedmanner, the system of rights operationalizes the tension betweenfacticity and validity, which we first encountered as a tensionbetween the positivity and the legitimacy of law. Both momentscombine in the mutual penetration of legal form and discourseprinciple, as well as in the Janus faces that law turns toward itsaddressees on the one side and its authors on the other. On the oneside, byway of coercible laws that render equal liberties compatible,the system of rights unleashes the self-interested choice of individualsubjects oriented by personal preferences. On the other