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

173A Reconstructive Approach to Law IIWe might note, finally, that the principle of legal protection, incombination with the basic rights of due process, yields all thefurther principles pertaining to the specific tasks, mode of operation,and protected status of an independent judiciary that mustapply the law in a way that guarantees both the certainty oflaw andthe rational acceptability of court decisions.36(c) The principle of the legality of administration clearly brings outthe central meaning of the separation and balancing of powers.37Beyond the different logics of argumentation respectively characterizingthe justification and application of norms, the institutionaldifferentiation displayed in the separate branches of governmenthas the purpose of binding the use of administrative power todemocratically enacted law in such a way that administrative powerregenerates itself solely from the communicative power that citizensengender in common. We have already examined, from theviewpoint of power, how laws bind a judiciary that must rely onmeans of repression. What is most noticeable from this same pointof view, however, is the relation of the legislative branch to anexecutive branch whose activity is subject to the law. This requirementof statutory authorization ( Gesetzesvorbehalt) has the effect ofnullifYing regulations, ordinances, agency rules and guidelines,orders, and other administrative acts that contradict a legal statute.38The priority of laws legitimated in democratic procedures hasthe cognitive meaning that the administration does not have itsown access to the normative premises underlying its decisions. Inpractical terms, this means that administrative power may not beused to intervene in, or substitute for, processes of legislation andadjudication.The utilization of administrative power on the part of the legislatureand judiciary is unobjectionable only insofar as this resourceis necessary for the institutionalization of the corresponding discourses.To the extent that administrative power goes to establishand organize the making and applying oflaw, it operates in such away as to provide enabling conditions. Conversely, if the administrationtakes on functions that go much beyond the implementationof legal programs, then legislative and adjudicative processesbecome subject to restricting conditions. Such interventions or substitutionsviolate the communicative presuppositions of legislativeand legal discourses and disturb the argumentation-guided pro-