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

285Judiciary and Legislatureconceptual tools that allow us both to analyze the observablecommunication flows according to the different issues and toreconstruct them in terms of the corresponding forms of communication.On a surface level, it is not easy to make out the differentdepth grammars that distinguish the pragmatic, ethical, and moraluses of reason, but this does not mean that the forms of politics thatMichelman opposes as ideal types are in fact indistinguishably fused.Moreover, the rational reconstruction of a given sequence ofcommunication with discourse-theoretic means allows one to identifydeviations that have their source in effects of social andadministrative power that cannot be publicly advocated.At the same time, the necessary differentiation between politicsand ethics, which republicanism fails to make sufficiently clear,does not pose any danger for the intersubjective understanding of ·law and politics. True, only to the extent that deliberative politicsproceeds as an ethical discourse writ large does it retain its internallinkages with the received traditions of a specific historical community.Only as a process of achieving ethical self-understanding doespolitics generate an awareness of that bond of substantial ethicallife holding the citizens together as they engage in their debates.However, because political discourses include a large portion ofbargaining on the one side and the moral universalization ofinterests on the other, democratic procedure can no longer drawits legitimating force from any prior agreement provided by thepolitical ethos of a particular community. The democratic proceduremust instead look for an independent justification. This callsthe communitarian reading of the republican tradition into questionwithout touching the intersubjective core of its notion ofpolitics. Michelman fears that once legislative politics loses itsrelation to a particular community and therewith the possibility ofresorting to common traditions, one can save its normative senseonly by referring to the "transcendent authority" of reason.81 Infact, however, a consistent proceduralist understanding of theconstitution relies on the intrinsically rational character of ademocratic process that grounds the presumption of rationaloutcomes. Under this description, reason is embodied solely in theformal-pragmatic conditions that facilitate deliberative politics, sothat we need not confront reason as an alien authority residingsomewhere beyond political communication.