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

402Chapter 9substantive legal equality. This seemed to be already guaranteedthrough the formal universality of legal statutes, that is, throughthe type of conditional legal program privileged by bourgeoisformal law. In any case, this legal form was typical for the norms ofbourgeois private law that confer powers and impose prohibitions.(It was also typical for the corresponding individual rights thatimpose certain interventionary duties on an administration boundby law.) However, the expectation of social justice-as achievablevia the private-legal elaboration of the principle oflegal freedomwasthereby implicitly linked with the demarcation of nondiscriminatoryconditions for the actual exerciseofliberties granted by the legalnorms regulating contracts, property, inheritance, and asociation.This expectation tacitly relied on certain social-theoreticassumptions or factual suppositions. Primarily, it depended oneconomic assumptions about equilibrium in market processes(with entrepreneurial freedom and consumer sovereignty). Correspondingto these were sociological assumptions about the distributionof wealth and an approximately equal distribution of socialpower, which was supposed to secure equal opportunities forexercising the powers conferred by private law. If freedom in "thecapacity to have and acquire" is to satisfY justice expectations, thenan equality of "legal capacity" must exist.Thus the social-contract model of bourgeois formal law soonproved to be vulnerable to empirical criticism. This led to areformist practice, which, however, was based not on a change inthe normative premises but only on a more abstract reading ofthem. Under the conditions of an organized capitalism dependenton the government's provision of public infrastructure and planning,and with a growing inequality in economic power, assets, andsocial situations, the objective legal content of subjective privaterights-that is, their substantive implications for public lawmerelybecame visible. In such a changed social context, theuniversal right to equal individual liberties could no longer beguaranteed through the negative status of the legal subject. Rather,it proved necessary, on the one hand, to specifY the content ofexisting norms of private law and, on the other, to introduce a newcategory ofbasic rights grounding claims to a more just distributionof social wealth (and a more effective protection from socially