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

136Chapter 4embodied in a visibly identifiable gathering of autonomous citizens.It pulls back into the, as it were, "subjectless" forms ofcommunication circulating through forums and legislative bodies.Only in this anonymous form can its communicatively fluid powerbind the administrative power of the state apparatus to the will ofthe citizens. As we will see, in the democratic rule of law, politicalpower is differentiated into communicative power and administrativepower. Because popular sovereignty no longer concentrates ina collectivity, or in the physically tangible presence of the unitedcitizens or their assembled representatives, but only takes effect inthe circulation of reasonably structured deliberations and decisions,one can attribute a harmless meaning to the proposition thatthere cannot be a sovereign in the constitutional state.2 But thisinterpretation must be carefully defined so as not to divest popularsovereignty of its radical-democratic content.When, in the folJowing, we reconstruct the internal relationbetween law and political power, we must be careful from the startto avoid a misunderstanding. This investigation is not concernedwith the gap between norm and reality, and thus does not yetapproach power as a socialfacticity able to make ideas look foolish.As in the previous chapter, our attention is directed rather at the.tension between facticity and validity inside the law. This initiallyappeared in the dimension oflegal validity (as the tension betweenthe positivity and the legitimacy of law) and inside the system ofrights (as the tension between private and public autonomy).These perspectives broaden when we introduce the idea of theconstitutional state. From rights we move over to a constitutionallyorganized authority whose exercise is supposed to be bound tolegitima:te law. Once law is reflexively applied to the political powerit tacitly presupposes, of course, the tension between facticity andvalidity shifts to another dimension: it reappears in constitutionallyorganized political power itself. State power is based on a threat ofsanctions backed by instruments of force held in reserve; at thesame time, however, it is authorized by legitimate law. As is the casein legal validity, the two moments of coercion and claim to normativevalidity are also combined in the collective binding force ofpolitical decisions, though in the opposite way. Whereas the lawinherently claims normative validity regardless of its positivity,