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

177A Reconstructive Approach to Law IItypes are realized in the corresponding forms of communication;and the latter must in turn be legally institutionalized if the citizens'claim to the exercise of their political rights is to be guaranteed.The sociological concept of "institutionalization" pertains to normativelyexpected behavior: institutions let members of a socialcollectivity know what behavior they may demand of one anotherwhen and in which situations. One can also institutionalize proceduresthat stipulate the rules a cooperative effort should follow inmanaging specific tasks. For example, procedural norms regulatethe concluding of contracts, the founding of an association, ordecision making in self-governing bodies. Parliamentary deliberationsand wage negotiations are also set up with the help of suchlegal procedures. We should carefully distinguish between forms ofcommunication-or types of communication processes-and thelegal procedures in which they can be institutionalized.Bargaining is a special form of communication. Here we find nointernal form, or logical pattern, of argumentation that correspondsto the external form of communication. The proceduresintended to secure the fairness of possible compromises regulate,among other things, the right to participation, the choice ofdelegates, and hence the composition of delegations. If necessarythey extend to such matters as the moderation and length ofnegotiation; they also stipulate the kinds of issues and contributions,the admissibility of sanctions, and so forth. These and similarquestions are regulated with a view to ensuring that all the relevantinterests are given equal consideration and all parties are furnishedwith equal power; here the exchange of arguments is geared to themost rational pursuit of preferences on the part of each side.Compromise procedures are intended to avert the danger thatasymmetrical power structures and unequally distributed threatpotentials could prejudice the outcome of bargaining. Anotherdanger is that compromise procedures will be applied to moral orethical questions, so that these get redefined into strategic questionswithout anyone's noticing or calling attention to the fact. Asdifficult as the institutionalization of bargaining systems of this sortmight be, compromise procedures always pertain to the regulationof strategic interactions.The types of procedures that regulate discourses (for example,court procedures) are a different matter. Here, institutionally