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

189A Reconstructive Approach to Law IIsubstance, converting it into a "rule of law" in which alone thepolitically autonomous self-organization of the legal communityexpresses itself. In tracing the exercise of political authority back tothe citizens' exercise of political autonomy, the modern natural lawoperating with Rousseau's and Kant's idea of self-legislation seeksto unifY practical reason and sovereign will in a way that removesany quasi-natural substance of domination from the authority of ademocratic government.For this reason, the concept of the legal statute as democratic lawforms the cornerstone in the modern natural-law constructions ofthe bourgeois constitutional state. If the legal statute is understoodas a general norm that acquires validity from the approval of thepeople's representatives in a procedure characterized by discussionand publicity, then it unifies two moments: the power of anintersubjectively formed will and the reason inherent in the legitimatingprocedure. Democratic law, then, is characterized by "thefact that legal decisions of whatever content are combined withquite definite procedural presuppositions."59 Democratic genesis,not a priori principles to which the content of norms would haveto correspond, provides the statute with its justice: "The justice ofa law is guaranteed by the particular procedure by which it comesabout."60 The priority of the constitution over legislation is thoroughlycompatible with this, for a constitution that interprets andelaborates the system of rights contains "nothing other than theprinciples and conditions of the ineliminable ( unaujhebbaren)legislative process."61At least in Germany, the liberal doctrine of separated powersoriginally relied on a narrow interpretation of this concept ofdemocratic law. It characterized laws in terms of the semantic formof abstract and general normative propositions and considered theprinciple of administrative legality to be fulfilled if the implementationwas limited strictly to concretizing the general contents ofthe norm according to the circumstances. On this reading, a lawowes its legitimacy not to the democratic procedure but to itsgrammatical form. This semanticist abstraction suggests an interpretationof the separation of powers in terms of the "logic ofsubsumption." According to this view, binding the legislature to theconstitution and the administration to enacted law is governed by