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

401Paradigms of Lawit does not mean that every right that can serve the private pursuitof an autonomous life refers to the protection of a private sphereconceived in sociological terms and privileged from an ethicalperspective.Most important, restrictions on the classical liberties in the"social" sphere (as distinct from broader or narrower privatespheres) certainly cannot be traced back to the interference of otherlegal principles (such as social justice or social responsibility).What appears as a restriction is only the flip side of the enforcementof equal individual liberties for all. This is because private autonomy,in the sense of this universal right to equal liberties,implies a universal right of equality, that is, the right to equaltreatment according to norms that guarantee substantive legalequality. This may produce actual restrictions for one or anotherparty in comparison to the status quo ante. If so, such restrictionsare not limitations on the principle oflegal freedom, but arise as aresult of abolishing privileges that are incompatible with the equaldistribution of individual liberties required by this principle.9.1.3The social-welfare model emerged from the reformist critique ofbourgeois formal law. According to this model, an economicsociety institutionalized in the form of private law (above allthrough property rights and contractual freedom) was separatedfrom the sphere of the common good, the state, and left to thespontaneous workings of market mechanisms. This "private-lawsociety" was tailored for the autonomy of legal subjects who,primarily as market participants, would seek and find their happinessby pursuing their own particular interests as rationally aspossible. The interpenetration of the principle of legal freedomwith the universal right to equality grounded the normative expectationthat social justice could be concomitantly established bydefining spheres of individual liberty, that is, by guaranteeing anegative legal status connected with a claim to correspondingindividual legal protection. For the right of each person to do as shepleases within the framework of laws is legitimate only under thecondition that these laws guarantee equal treatment in the sense of