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

288Chapter 7empirical level, without referring to the validity dimension of lawand the legitimating force of the democratic genesis of law.Thus far we have taken the perspective of legal theory andpursued a tension, inhabiting the law itsel£, between facticity andvalidity. In what follows, our theme will be the external relationbetween facticity and validity, namely, the tension between thenormative self-understanding of the constitutional state, as explainedin discourse-theoretic terms, and the social facticity of thepolitical processes that run their course along more or less constitutionallines. This brings us back to social theory, the dominantapproach in the first two chapters. It was already clear from theinternal perspective o£ legal theory that the system of rights takesshape in historical constitutions and is implemented in variousinstitutions. Rather than dwell on these two levels-comparativeconstitutional law and the political science of institutions-! willseek out a direct transition from normative models of democracyto sociological theories of democracy. Thus far we have dealt withthe generation, allocation, and exercise of political power in termsof the normative considerations that govern the constitutionalstate and its organization. In that context, the key question is howcommunicative power ought to be related to administrative and· social power. Political sociology examines this same phenomenonfrom a different perspective.Before going into "realist" theories of democracy in the nextchapter, I would like to prepare the necessary change in perspectivestep by step. First I argue against a reductionist concept ofdemocracy that eliminates the element of democratic legitimacyfrom power and law (sec. 7.1). Mter comparing different substantivemodels of democracy, I develop a procedural concept ofdemocratic process. This concept, which breaks with a holisticmodel of society centered in the state, claims to be neutral withrespect to competing worldviews and forms of life (sec. 7.2) .Finally, I pursue Robert Dahl's attempt at a sociological translationand empirical testing of the procedural understanding of democracy.Here my goal is to clarifY what it means to "confront" the ideaof the self-organization of freely associated citizens with the realityof highly complex societies (sec. 7.3).