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

186Chapter 4the communicatively fluid sovereignty of citizens instantiates itselfin the power of public discourses that spring from autonomouspublic spheres but take shape in the decisions of democratic, politicallyaccountable legislative bodies, then the pluralism of beliefs andinterests is not suppressed but unleashed and recognized in revisablemority decisions as well as in compromises. The unity of acompletely proceduralized reason then retreats into the discursivestructure of public communication. This reason refuses to concedethat a consensus is free of coercion, and hence has legitimatingforce, unless the consensus has come about under the fallibilistproviso and on the basis of an anarchic, unfettered communicativefreedom. In the vertigo of this freedom, there is no longer any fixedpoint outside that of democratic procedure itself, a procedurewhose meaning is already implicit in the system of rights.4.3.3The classical separation of powers is explained by differentiatinggovernmental functions: whereas the legislature justifies and passesgeneral programs and the judiciary resolves action conflicts on thisstatutory basis, the administration is responsible for implementinglegal programs that are not self-executing but need to be carriedout. By rendering authoritative decisions about what is legal andillegal in individual cases, the judiciary treats existing law as law,namely, from the normative standpoint of stabilizing behavioralexpectations. The administration processes the teleological contentsof existing law insofar as the latter puts policies in statutoryform and steers the administrative realization of collective goals.From the standpoint of the logical division of labor in argumentation,juristicdiscourses serve to apply norms, whereas the rationalityof administrative activity is secured mainly through pragmaticdiscourses.Pragmatic discourses are tailored to the choice of technologiesand strategies that, under the given circumstances (such as limitedresources, deadlines, resistances in acceptance, and other restrictions),are suitable for realizing the values and goals previously setby the legislature: