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

193A Reconstructive Approach to Law IIThe talk of "legislature," 'judiciary," and "administration" suggestsan overly concrete understanding led astray by inheritedforms of institutionalization. Such a view misses the level of abstractionat which we have sketched the discourse-theoretic specificationof the functionsoflegislation, application, and implementation.Only when one approaches these functions at an abstract level, interms of the disposition over different kinds of admissible argumentsand corresponding forms of communication, can one assessthe adequacy of the various ways in which the principles implied bythe logic of separated powers have been institutionalized. Forexample, insofar as the implementation of programmatic goalsrequires the administration to perform organizational tasks that atleast implicitly require a further development oflaw, the legitimationbasis of traditional administrative structures no longer suf·fices. The logic of the separation of powers must then be realizedin new structures, say, by setting up the corresponding forms ofparticipation and communication or by introducing quasi-judicialand parliamentary procedures, procedures for compromise formation,and so on.651 will treat this in greater detail in the last chapter.