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

174Chapter 4cesses of reaching understanding that alone can ground the rationalacceptability of laws and court decisions. Empowering theexecutive to issue binding regulations therefore requires speciallegal norms that regulate the administration. Thus administrativelaw in particular highlights the principle of prohibiting arbitrariness indomestic affairs. 39Note, too, that the constitution of an executive authority has theeffect that the liberties resulting from the right to equal freedom ofaction acquire the additional meaning of liberal rights against thestate enjoyed by private legal subjects. The rights that citizens at firstreciprocally accord each other only in the horizontal dimension ofcitizen-citizen interactions must now, once an executive branch hasbeen formed, also extend to the vertical dimension of citizen-staterelationships. From a historical perspective, these "liberal" (in thenarrower sense) basic rights in fact make up the core of humanrightsdeclarations. The system of rights-initially grounded inrational natural law-grew out of these.40 The improvement ofparliamentary controls on administration and above all the systemof administrative courts point in the same direction; both of thesesupplement the legislator's ex ante control with one that is ex postfacto. In principle, every case of administrative action or inactioncan be contested in court by seeking a nullification or mandatoryinjunction. Moreover, in cases in which individual legal subjects(and also associations) feel that the executive branch (or a thirdparty) has infringed on their basic rights, constitutional jurisdictionallows them to lodge constitutional complaints.(d) In the German constitutional-law tradition, the principle ofseparation of state and society has been interpreted too concretelyalong the lines of a liberal &chtsstaat. In general terms, however,this principle refers to the legal guarantee of a social autonomy thatalso grants each person, as enfranchised citizen, equal opportunitiesto make use of his rights to political participation and communication.The model of the bourgeois constitutional state is not byany means the only one corresponding to this principle. Accordingto that model, the state limits itself to guaranteeing external andinternal security. It is supposed to leave all other functions to a selfregulatingeconomic society that has been largely freed of governmentregulation in the expectation that just living conditions willspontaneouslyresultfrom the free play of the ends and preferences