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

138Chapter 4basis of a civil contract, according to which the sovereign takes onthe functions oflegislation and casts his imperatives in the form ofgeneral laws. The ruler's will is channeled through statutes, but thisdoes not essentially alter the substantial nature of a will groundedon naked decision. The ruler submits to the reason sublimated inthe abstract form o£legal statutes only in order to use it for his ownsovereign purposes. In this construction, the facticity of a quasinaturalpower to command comes into direct contact with the rulestructure of laws that grant subjects their freedom of action. Onecan still find traces of this antagonism even in Kant and Rousseau,although with them the rule structure o£ law (and democraticprocedure) is conceived as the core of a new kind of autonomy;general and abstract laws manifest a practical reason that is supposedto govern the sovereign decisions of the united people.Kant's rather paternalistic ideas for piecemeal liberal reform stillbetray a Hobbesian respect for the natural fact of political power,the impenetrable, decisionistic core of politics that separates lawfrom morality. 3The conceptual framework of modern natural law, as developedin the tradition of the philosophy of the subject, blocks an adequatesociological perception of the cohesion ofkinship societies through. prepolitical institutions; in fact, the complex of law and politicalpower was able to join forces with this prepolitical substratum for along time. The phenomena that first consistently appeared inmodernity-the conglomeration of administrative power, thepositivization of law, and the emergence of legal authorityconcealthe beginnings of a kind of political authority that initiallyemerged in the context of traditional societies. In tribal societies,which were the seedbed for early state formations, the prestigebasedsocial power of chieftains, priests, members of privilegedfamilies, and so forth, joined forces with recognized behavioral normswhose obligatory force stemmed from mythic powers, hence froma sacred background consensus. Together they formed a syndromethat already made institutions of conflict resolution and collectivewill-formation possible before the evolutionary step to state-organizedpower was taken. For this reason, the state complex oflawandpolitics could arise on an archaic foundation of social integrationthat the modern constructs of the "state of nature" did not take into