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

167A Reconstructive Approach to Law IIone another during the actual bargaining, so that all the affectedinterests can come into play and have equal chances of prevailing.To the extent that these conditions are met, there are grounds forpresuming that negotiated agreements are fair.Such procedures define the equal consideration of the interestsof each participant as a problem of procedurally correct agreementsamong power holders. Thus it is nota matter ofmutual understandingamong discourse participants who make use of their communicativefreedom to adopt positions toward criticizable validity claimsin order to mutually convinceone another of their arguments. Froma normative perspective, however, fair compromise formation doesnot stand on its own, for the procedural conditions under whichactual compromises enjoy the presumption of fairness must bejustified in moral discourses. Moreover, bargaining first becomes ·permissible and necessary when only particular-and no generalizable-interestsare involved, something that again can be testedonly in moral discourses.32 Fair bargaining, then, does not destroythe discourse principle but rather indirectly presupposes it.So compromise formation cannot simply replace moral discourses;this is why political will-formation cannot be reduced tocompromise. This applies mutatis mutandis to ethical-politicaldiscourses as well, for their results must at least be compatible withmoral principles. A fundamentalist self-understanding, for example,often privileges value choices that subordinate individualrights to collective goals and thus favor nonegalitarian regulations.Only under the conditions of postmetaphysical thinking do ethicalpoliticaldiscourses lead to regulations that lie per se in the equalinterest of all members. So only the compatibility of all discursivelyachieved or negotiated programs with what is morally justifiableensures that the discourse principle has been thoroughly applied.Rational political will-formation appears in the process model as anetwork of discourses and negotiations that can be linked up to oneanother via multiple pathways. However, transfers occur at leastalong the paths shown in figure 2.Political will-formation terminates in resolutions about policiesand legal programs that must be formulated in the language o£law.This ultimately makes a judicial review necessary in which the newprograms are examined for their fit with the existing legal system.