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

349Civil Society and the Political Public Spherethe political system. This objection would be off target only if theenvisioned change in the type of legal regulation could be keptwithin the boundaries of democracy.The more collective actors, sociofunctional systems, and largeorganizations act in place of individuals, the more clearly the basisfor assigning responsibility for the consequences of actions shiftsandthe less it seems possible to rely on rights for safeguarding thosecollective goods of the "risk society" that are worth protecting. Forthis reason, Willke considers it obsolete to anchor law in anindividualistically designed system of rights. The "relational programs"he calls for are instead designed for the autopoietic reproductionand self-steering of systems; they no longer refer to theprivate and public autonomy of socialized individuals. Nevertheless,such a restructuring oflawis by no means intended to abandon ·the idea of the constitutional state but only to interpret it differently.On this premise, a formally correct legal regulation of thebargaining networks would suffice to secure their legitimacy aswell. Willke even insists thatdemocracy can be preserved in highly complex societies only if this idea[of the constitutional state] is generalized for society as a whole. Furthermore,society must be specifically constituted in a way that permits andpromotes the guarantee of the autonomy and differences of citizens asmuch as the autonomy and differences of its functional systems. Thelatter is not just an end in itselffor the preservation of the achieved degreeof functional differentiation but in addition serves to generalize theconstitutional protection of the citizen.43In fact, this formulation reveals more than a break with just onehistorical-indeed, historically obsolete-reading of constitutionaldemocracy. With the "idea of a society-wide, consensually institutionalizedand binding constitution" that stretches "from its citizensas natural persons to include their organizations, corporateactors, and functional systems,"44 the systems-theoretic adaptationof the Hegelian Stiindestaat takes the place of the democraticconstitutional state and undermines its individualistic basis oflegitimation. This is already evident in simple examples.Neocorporatist bargaining networks can attune the growing complexityof each functional system with the others only by simultaneouslystimulating this growth; yet there is no preestablished