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

251-Judiciary and Legislatureintersubjective meaning of securing symmetrical relations of mutualrecognition. By mutually granting one another these rights,individuals acquire the status of legal subjects who are both freeand equal. This original intersubjective meaning is differentiatedaccording to "subjective" and "objective" legal contents only in viewof the problem of the juridification of political power (which,however, is from the beginning tacitly presupposed for the constitutionof the legal code). But it is only a particular paradigmaticunderstanding of law in general that causes the objective legalcontent apparently to drop out of some basic rights. This understandingstems in turn from how a particular historical situationwas perceived through the lens of social theory, that is, a situationin which the liberal middle class had to grasp, on the basis of itsinterest position, how the principles of the constitutional statecould be realized. Viewed from the standpoint of"effective history"( wirkungsgeschichtlich) , the liberal paradigm of law represented atthe time a thoroughly successful solution to this problem; today thesame problem, under the altered historical circumstances thateven Bockenforde recognizes, demands a different answer.Of course, the social-welfare paradigm oflaw that has since beenestablished is also no longer very convincing. However, the difficultiesthat Bockenforde astutely analyzes in this new paradigm are nota sufficient reason for restoring the old one. 23 In the United States,the problems that have resulted from the welfare programs of theNew Deal, as well as from the sudden expansion of welfare claimssparked by the vision of the "Great Society" in the sixties andseventies, are openly acknowledged. This "rights revolution" istaken as a challenge to give a new interpretation to the principlesof the constitutional state in the light of new historical experiences.For example, the partially counterproductive effects of welfareprograms have led Cass Sunstein to conclude only that a newconsensus must develop about how American constitutional principlescan be realized under the conditions of the "regulatory"state.As the result of an analysis of Supreme Court adjudication,Sunstein proposes a series of "background norms" that are intendedto modifY the paradigmatic reading of the principles ofgovernment by law: