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

399Paradigms of Lawas well as the domains ofleisure and consumption, private associations,etc.) from a private sphere in a broad sense, which ischaracterized by typified group interests. Here individuals in theirclient roles depend, for example, on employment and tenancy oron transportation and supply companies. By contrast, the socialsphere is dominated by interactions among corporate enterprises,large organizations, associations, and intermediary structures of allsorts, which have an influence on individuals' decisions throughthe exercise of economic and social power. This theory of spheres,which is also reflected in the adjudication of the Federal ConstitutionalCourt, 20 has a certain descriptive value. Its real intention is toemphasize the ethical core of private rights with the help of asociological concept of the "private sphere."The principle of legal freedom, which was initially connectedwith classical private law, requires "that the individual is due thehighest possible degree of freedom to do as he or she pleases,relative to the legal and factual possibilities."21 This principlecoincides with Kant's universal human right, the right to thegreatest possible degree of equal individual liberty. Because theoptions available to legal subjects should be restricted by prohibitionsor commands as little as possible, the principle of legalfreedom directly guarantees the negatively defined latitude for thepursuit of one's own interests. At the same time, however, it enablesan autonomous conduct of life in the ethical sense of pursuingone's own conception of the good, which is the sense associatedwith "independence," "self-responsibility," and the "free development"of one's personality. One realizes the positive freedom of theethical person by consciously living out one's individual life. Suchfreedom is manifested in those core private domains where, at thelevel of simple interactions, the life histories of members of anintersubjectively shared lifeworld are intertwined with commontraditions. As ethical, this freedom escapes legal regulation, but itis made possible by legal freedom. Indeed, the classical liberties ofprivate law-rights protective of personality and the individual, thefreedom to enter contracts, property rights, the right of privateassociation-are what protect that innermost sphere where theethical person can emerge from the shell of the legal subject anddocument, so to speak, the metalegal, indeed ethical, value oflegalfreedom.22