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

384Chapter 8to the point where the latter switches into the conflict mode andneutralizes the unofficial countercirculation of power.Beyond this, the justification of civil disobedience80 relies on adynamic understandingof the constitution as an unfinished project.From this long-term perspective, the constitutional state does notrepresent a finished structure but a delicate and sensitive-aboveall fallible and revisable-enterprise, whose purpose is to realizethe system of rights anew in changing circumstances, that is, tointerpret the system of rights better, to institutionalize it moreappropriately, and to draw out its contents more radically. This isthe perspective of citizens who are actively engaged in realizing thesystem of rights. Aware of, and referring to, changed contexts, suchcitizens want to overcome in practice the tension between socialfacticity and validity. Although legal theory cannot adopt thisparticipant perspective as its own, it can reconstruct the paradigmaticunderstanding of law and democracy that guides citizenswhenever they form an idea of the structural constraints on the selforganizationof the legal community in their society.8.3.5From a reconstructive standpoint, we have seen that constitutionalrights and principles merely explicate the performative characterof the self-constitution of a society of free and equal citizens. Theorganizational forms of the constitutional state make this practicepermanent. Every historical example of a democratic constitutionhas a double temporal reference: as a historic document, it recallsthe foundational act that it interprets-it marks a beginning intime. At the same time, its normative character means that the taskof interpreting and elaborating the system of rights poses itselfanew for each generation; as the project of a just society, a constitutionarticulates the horizon of expectation opening on an everpresentfuture. From this perspective, as an ongoing process ofconstitution making set up for the long haul, the democraticprocedure of legitimate lawmaking acquires a privileged status.This leads to the pressing question of whether such a demandingprocedure can be implemented in complex societies like our ownand, ifitcan, how this can be done effectively, so that a constitution-