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

268Chapter 6through Roman philosophy and the political thought of the ItalianRenaissance, 49was framed in modern natural-law terms by Rousseau.Entering the American constitutional discussion via Hobbes'sopponent James Harrington, this tradition presented an attractivealternative to Lockean liberalism and partly inspired the FoundingFathers' understanding of democracy. 50 J. G. A. Pocock stylizes thisstrand of republican thought as a form of civic humanism that,unlike modern natural law, does not draw on a legal vocabulary buton the language of classical ethics and politics.-51In the modern period, concepts of Roman law were used todefine the negative liberties of citizens in order to secure the propertyand commercial trade of private persons against the interventionsof a political authority from whose exercise those persons wereexcluded. By contrast, the language of ethics and rhetoric preservesthe image of a political practice in which the positive libertiesof equally entitled, participating citizens are realized. 52 The republicanconcept of "politics" refers not to rights of life, liberty, andproperty that are possessed by private citizens and guaranteed bythe state, but preeminently to the practice of self-determination onthe part of enfranchised citizens who are oriented to the commongood and understand themselves as free and equal members of acooperative, self-governing community. Law and legal statute aresecondary in comparison to the ethical life context of a polis inwhich the virtue of active participation in public affairs can developand stabilize. Only in this civic practice can human beings realizethe telos of their species. 53 Michelman examines the debates of thewriters of the United States Constitution, the text of the Constitutionitself,54 and current constitutional adjudication,55 in an attemptto decipher traces of this republicanism, from which hewants to develop a normative concept of the political process andits procedural conditions. He employs a stylized opposition betweenthe "republican" and the "liberal" paradigms to characterize notonly two traditions of constitutional interpretation but also twocompeting trends in the constitutional reality.The decisive difference lies in how the role of the democraticprocess is understood. According to the "liberal" view-here I usethe shorthand accepted in the American discussion-the democraticprocess carries out the task of programming the government