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

242Chapter 6of the Constitution"-as Carl Schmitt wanted to do in his day withthe German president-twists the meaning of the separation ofpowers in the constitutional state into its very opposite.3 If weinterpret the logic of separated powers in terms of argumentationtheory,4 it is reasonable to construe legislation self-reflexively, in amanner similar to the self-reflexive construction of the administrationof justice, and to furnish the legislature with the authority toreview its own activity. As it is, the legislature does not have thepower to check whether the courts, in applying the law, make useof exactly those normative reasons that appeared in the presumptivelyrational justification of a legal statute on the part of thelegislator. On the other hand, what is known as abstract judicialreview belongs without question among the functions of the legislature.Hence it is not entirely off track to reserve this function,even at a second level of appeal, to a legislative self-review that couldbe developed into a quasi-judicial procedure. The transfer of thispower to a constitutional court requires, at the least, a complexjustification: "[For] the discourse of basic rights [is] not bound tothe decisions made in legislative procedures, but has priority overthem. This means that the most important constraining factor fornormal legal argumentation, the relatively concrete ordinary legalstatute, is lacking in such discourse. In its place one finds veryabstract, open, and ideologically loaded constitutional principles."5For Alexy, "the discourse of basic rights" pertains to all spheres ofconstitutional adjudication. An explicit, even if only selective,release from legally binding statutes appears most clearly in thecase of abstract judicial review.This point is illustrated by a famous controversy between HansKelsen and Carl Schmitt. Kelsen declared himself categorically infavor of institutionalizing a constitutional court. In support of thisdemand, he cited not only political considerations, which werequite plausible for the situation at the time, but interesting theoreticalreasons as well. Schmitt had doubted that abstract judicialreview was a question of norm application, and hence a genuineoperation of judicial decision making, because one only "makescomparisons among general norms, but does not subsume onenorm under another or apply one to another." The relationbetween the norm and the circumstances of a particular case or