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

184Chapter 4civil society set apart from the state. Parliamentary bodies shouldwork within the parameters of what, in some sense, is a "sujectless"public opinion, which naturally cannot form in a vacuum but onlyagainst the background of a liberal political culture. Whereas thesystem of rights explicates the conditions under which people canunite in an association of free and equal citizens, the politicalculture of a population expresses how they intuitively understandthe system of rights in their historically specific life context. Theprinciples of government by law can become the driving forcebehind the dynamic project of realizing an association of free andequal persons only if they are contextualized in the history of anation of citizens in such a way that they connect with these citizens'motives and mentalities."2In this communication model, the relation between parliament andthe public sphere takes a form different from that found in theclassical representative or plebiscitary views of democracy. In accordancewith the tenet of stat pro ratione voluntas ("the will stands inthe place of reason") , the plebiscitary theory starts with the voluntaristassumption that there exists a popular will expressing the currentgeneral interest and that, under the conditions of democratic selfdetermination,this will largely converges with the empirical popularwill.By contrast, the representation theory inverts Hobbes's auctoritasnon veritas Jacit legem ("authority not truth makes law" ). That is, itstarts with the rationalist assumption that the hypothetical commongood can be ascertained through deliberation only at the levelof representative bodies set off from the empirical popular will.Carl Schmitt's reconstruction of bourgeois parliamentarianismintegrated both conceptions in a peculiar fashion. He conceivedthe plebiscitary force of a presumably homogeneous, empiricalpopular will as the root from which the parliament's discursiveopinion- and will-formation sprouts forth:The parliament of the bourgeois constitutional state is . .. the place wherea public discussion of political opinions takes place. Majority and minority,ruling party and opposition search for the correct decision bydiscussing arguments and counterarguments. As long as parliamentrepresents the nation's culture [Bildung] and reason, uniting in itself thetotal intelligence of the people, a genuine discussion can arise, i.e., inpublic dialogue the genuine total will of the people can take shape as a