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

389Paradigms of Lawsection of constitutions that have emerged from political upheavalsor revolutions. In contrast to the professionally formulated ordeveloped law oflegal scholars, even the style and wording of thesedeclarations display an emphatic statement of will from citizenswho are reacting to concrete experiences of repression and humiliation.Most articles in a bill of rights resonate with a sufferedinjustice that is negated word for word, as it were.1 What is obviousin those rare moments of a revolutionary founding of a constitutionremains implicit in the everyday work of the legislature and thejudiciary and so must be laboriously deciphered by the historian.Parliaments and courts can pursue the goal of realizing rights onlyin a con text that their members interpret in view of actually allowedbut limited possibilities of action. One can understand what actorsrespond to, and have responded to, with their decisions and·reasons only if one recognizes their implicit image of society and onlyif one knows which structures, achievements, potentials, and dangersthey ascribe to their own society at the time, in the light of theirtask of realizing the system of rights.As early as 1931, Otto Kahn-Freund examined the "social ideal"of the Supreme Labor Court (Reichsarbeitsgerichts) from the perspectiveof ideology critique.2 Two decades later, Franz Wieackerintroduced the equivalent concept of the "social model" for descriptivepurposes when he deciphered the liberal paradigm oflawin the classical statute books of private law. His aim was "to disclosethe social model of a given legal order and how that model changes;its secret design, so to speak, which is initially concealed by theliterary, humanistic, and conceptual continuity of the scientifictradition."3 In elaborating the paradigm of bourgeois formal law,Wieacker's famous study simultaneously clarified the backgroundin ' contrast to which the "materialization" oflaw during the last onehundred years could emerge-a trend, already bemoaned by MaxWeber, that fully asserted itself only with the development of thesocial-welfare state at the end of the Second World War. This socialtransformation of law was initially thought of as a process in which anew instrumental understanding of law, one related to socialwelfareconceptions of justice, was superimposed on the liberalmodel of law. German jurisprudence has perceived this longstandingprocess, which dissolved the classical unity and systematic