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

279------ ----- -- ---Judiciary and Legislatureon the other, procedures that secure fair bargaining conditions.Discourse theory breaks with an ethical conception of civic autonomy,and thus it does not have to reserve the mode of deliberativepolitics to exceptional conditions. Moreover, a constitutionalcourt guided by a proceduralist understanding of the constitutiondoes not have to overdraw on its legitimation credit. It can staywithin its authority to apply the law-an authority clearly definedin terms of the logic of argumentation-provided that the democraticprocess over which it is supposed to keep watch is notdescribed as a state of exception.The exceptional features of the normatively privileged democraticprocess stem from the fact that Michelman, like other"communitarians," understands citizenship not primarily in legalbut in ethical terms. According to this classical view,73 in the politicalpublic sphere, citizens join together in seeking what is best for themas members of a particular collectivity at a given point in time.Michelman draws on the language of romanticism when he translatesthis striving for the collective good into the hermeneuticappropriation of" constitutive traditions." According to this view, itis only the ascribed membership in an intersubjectively sharedform of life and the conscious appropriation of antecedent traditionsthat explain why citizens are able to achieve any consensus atall about how to solve problems on the agenda-and about whatstandards should define the "best" solution in each case: "Persuasivearguments and discussions seem inconceivable without consciousreference by those involved to their mutual and reciprocalawareness of being co-participants not just of this one debate, butin a more encompassing common life, bearing the imprint of acommon past, within and from which the arguments and claimsarise and draw their meaning."74 Of course, the ethical particularismcharacteristic of an unproblematic background consensusdoes not sit well with the conditions of cultural and societalpluralism that distinguish modern societies.6.3.3We cannot carry on the discussion of the Supreme Court's activismor self-restraint in abstracto. If one understands the constitution as