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

246Chapter 6effect on the liberal separation of powers. Incidentally, a positivistview of law as a recursively closed system of rules is well suited forthis model.If one takes this model as the standard of comparison, then thematerialized legal order of the welfare state can appear as anupheaval, even as the corruption of the constitutional architectonic.Welfare-state law does not consist primarily of clearly definedconditional programs but facilitates political policymaking andmust draw on principles in the process of adjudication. Comparedto the classical separation thesis, the materialization of law resultsin a "remoralization" that, by admitting arguments of moral principleand of political policy into legal argumentation, loosens thelinear binding of the judiciary to the guidelines laid down by thepolitical legislature. The fundamental norms and principles thatnow penetrate all areas of the legal order demand that the individualcase be interpreted constructively, in a manner sensitive tocontext and referring to the legal system as a whole. The contextdependenceof a norm application oriented by the whole of theconstitution can reinforce the freedom and responsibility of communicativelyacting subjects in nonformalized spheres of action.Inside the legal system, however, it signifies increased power for the. judiciary, and it enlarges the scope of judicial discretion in a waythat threatens to upset the equilibrium in the normative structureof the classical constitutional state at the cost of the citizens'autonomy.13 That is, the orientation to fundamental norms andprinciples means the judiciary must turn its attention from itsformer focus on the institutional history of the legal order andattend primarily to problems of the present and future. On the onehand (as lnge borg Maus also fears), the judiciary encroaches onlegislative powers for which it lacks democratic legitimation. Onthe other hand, it promotes and confirms a flexible legal structurethat accommodates the autonomy of the administrative apparatus-sothat the democratic legitimation oflaw is eroded from thisside as well.Attentive critics, such as Bockenforde, Denninger, and Maus,have reconstructed an implicit doctrine of basic rights from thepivotal decisions of the Federal Constitutional Court. This doctrine,so the interpretation goes, acknowledges that the system of