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

185-- -- ----A Reconstructive Approach to Law II-- ---- ---volonte generale. The people itself cannot discuss ..., it can only acclaim,elect, and say Yes or No to the questions set before it.This is supposed to yield the basic idea of parliamen tarianism: "Theparliament represents the entire nation as such, and in this capacity,through public discussions and public decisionmaking, it enactslaws, i.e., norms that are reasonable, just, and general, whichdetermine and regulate the total life of the state."53Oddly enough, in this text Schmitt relies on a well-known statementof Marx that contradicts his own thesis. Marx of courserealized that early liberalism in no way wanted to reserve publicdiscussion for parliamentary bodies:The parliamentary regime lives by discussion; how shall it forbid discussion?. .. The ;truggle of the orators on the platform evokes the struggleof the scribblers of the press; the debating club in parliament is necessarilysupplemented by debating clubs in the salons and taverns . ... Theparliamentary regime leaves everything to the decision of majorities; howshall the great majorities outside parliament not want to decide? Whenyou play the fiddle at the top of the state, what else is to be expected butthat those down below dance?'AHence Ernst Fraenkel can counter Schmitt not only with empiricalarguments. Without moving outside a liberal theory of the politicalprocess, he can argue that discursive opinion- and will-formation isby no means limited to parliament. Rather, the communicationcirculating in the various arenas of the political public sphere, ofpolitical parties and organizations, and of parliamentary bodiesand Government leaders are intermeshed with, and reciprocallyinfluence, one another.""This thought can be better explained only in a communicationmodel that frees itself of overly concrete notions of "the people" asan entity. This model instead takes a structuralist approach to themanner in which institutionalized opinion- and will-formation islinked with informal opinion building in culturally mobilizedpublic spheres. This linkage is made possible neither by thehomogeneity of the people and the identity of the popular will, norby the identity of a reason that is supposedly able simply to discoveran underlying homogeneous general interest.56 The discoursetheoreticconception is at cross-purposes with the classical views. If