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

168Chapter 41Pragmatic discoursesPwcedurnlly ceg Ethkal-pol;ticalbatga;n;ng / d;•com'"Moral discoursest· Legal discoursesFigure 2A process model of rational political will-formation.The political legislature may use its lawmaking powers only tojustify legal programs that-insofar as they do not immediatelyinterpret and elaborate the system of rights-are compatible withthis system and can link up with the corpus of established laws.From this legal or juridical standpoint, all resolutions have to betested for coherence. The consistency oflaw must be preserved forthe sake oflegal certainty, if for no other reason. As we shall see, ina constitutional state the internal review otnorms by the legislature. can be subjected to further review (Revision) by a court thatscrutinizes enacted legislation for its conformity with the constitution.334.3 Principles of the Constitutional State and the Logic of theSeparation of Powers4.3.1Having completed these preparatory reflections, we can pull thevarious strands of argumentation together in order to justify theprinciples of government by law from a discourse-theoretic point ofview. As we have seen, binding law and political power form acomplex in which each fulfills a function for the other. At the sametime, this complex opens up the possibility that law will beinstrumentalizedforthe strategicdeploymentofpower. To countersuch instrumentalization, the idea of government by law requires