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

400Chapter 9In spite of its phenomenological power, though, the theory ofspheres is unsatisfactory. This is not just because its spatial modelof life spheres, whose "public" and "political" content is hardlyoperationalizable, oversimplifies complex functional interrelationships.The real weakness of the theory lies in the fact that in placeoflegal criteria for assessing and systematically demarcating areasof law, it substitutes vague social indicators. This displacement,moreover, insinuates a false assumption: that the domain in whichthe classical idea of private autonomy had validity was curtailed bythe competing, politically enforced claim of social justice, that is,the idea of"the individual's social membership and his consequentsocial responsibility."23 This curtailment is even assumed to havefavored a deeper, socioethical conception of personality that,strictly speaking, cannot be accommodated by legal concepts. Infact, however, the changes in private law are explained by a changedparadigmatic understanding of the same normative concept of privateautonomy.What the liberal model of law assumed about the functioning ofthe market mechanism and about the economy as a power-freesphere proved incorrect. As a result, to enforce the principle oflegal freedom under the changed social conditions as they are. perceived in the social-welfare model, it is necessary to "materialize"existing rights and create new types of rights. The idea of privateautonomy, expressed in the right to the greatest possible degree ofequal liberty, did not change at all. What did change were theperceived social contexts in which each individual's private autonomywas supposed to be equally realized. With her privateautonomy, the individual as such is guaranteed the status of a legalperson. But this status is by no means grounded only in theprotection of a sphere of private life in the sociological sense, evenif it is primarily in this sphere that legal freedom can prove itself asmaking ethical freedom possible. The status of a private legalsubject is constituted by all those rights that relate to action andcondition and that issue from the political elaboration of theprinciple oflegal freedom-no matter in which social sphere. Forthis reason, legally demarcating an "inviolable domain of privatelife-plans" can only mean that restrictions in this domain must bejustified by especially weighty reasons on a case-by-case basis. 24 But