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

245Judiciary and Legislaturestate, which no longer simply guarantees comprehensive individuallegal protection but provides its citizens with a "safety net"for socially conditioned risks and losses.11 According to the liberalmodel of society, the constitution was once supposed to separate asocioeconomic realm, in which individuals autonomously pursuedtheir private happiness, from the political sphere concerned withthe pursuit of the common good: "At least the constitution did nothave the function of orchestrating individual well-being and thecommon good under one overarching idea. "12 The tasks and goalsof the state were left to politics and were not supposed to becomean object of constitutional regulation. Accordingly, basic rightswere understood exclusively as rights against the state. Becausethese only ground negative claims that the state refrain frominterference, they have an absolute or direct validity. This impliesa strict conditioning of adjudication. Legislators, too, could managea clear legal situation. That is, they could restrict themselves toguaranteeing public order, preventing what was perceived as"abuses" of economic liberty, and establishing general and abstractlaws that precisely defined the possibilities and scope of governmentinterventions.In the liberal model, strict legal constraints on the judiciary andthe administration led to the classical scheme for the separation ofpowers, which was once intended to bring the arbitrary will of anabsolutist regime in line with the rule of law. The distribution ofpowers among the branches of government can be modeled alongthe temporal axis of collective decisions: judicial decision makingis oriented to the past and focuses on past decisions of the politicallegislature that have solidified into established law; the legislaturemakes decisions oriented to the future and binding on futureaction; and the administration deals with current problems croppingup in the present. This model is governed by the premise thatthe democratic constitution should primarily fend off dangers thatcan arise in the government-citizen dimension, that is, in therelationships between the administrative apparatus, with its monopolyon the means oflegitimate violence, and unarmed privatepersons. By contrast, the horizontal relationships among privatepersons, especially those intersubjective relationships constitutingthe common civic practice of citizens, do not have any formative