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

403------ ·-- ----Paradigms of Lawproduced dangers). From a normative point of view, both thematerialization of private law and the new category of socialentitlements are justified in a relative sense, namely, in relation to anabsolutely justified equal distribution of individual liberties. Materializationresults from the fact "that legal freedom, that is, the legalpermission to do as one pleases, is worthless without actual freedom,the real possibility of choosing between the permitted alternatives."Social entitlements, on the other hand, are due to the fact"that under the conditions of modern industrial society the actualfreedom of a large number of rights-bearers does not have itsmaterial basis in an environment they control, but essentiallydepends on government activities."25 We might also note that thedemocratic constitution links private law to the expanded catalogof basic rights, establishing a connection that binds the legislatorand, what is more, has left its mark on the decisions of theConstitutional Court, supported by the doctrine that basic rightshave a "radiating effect" (Ausstrahlung) or "third-party effect"(Drittwirkung) . 26Changes in the classical areas of property law and contract lawserve as prime examples of the materialization of bourgeois formallaw. Thus, on the one hand, property guarantees have beenextended beyond material property to include all entitlements andrights affecting income (such as membership rights, pension rights,and pension eligibility) . As a result, in many areas "public surrogatesfor property" have taken over the role that property lawplayed in safeguarding freedom. On the other hand, the socialduties of property pertain to any object that stands "in a socialrelation or a social function." More specifically, the binding powerof property as a basic right has been reduced "to a relatively narrowcore of what is most personal" (consider, for example, the codeterminationrights that employees have vis-a-vis management;takings and similar expropriative interventions; and the separationof usufruct) . 27 Horst Bethge sees the property guarantee as thatliberty "whose explicit social duties have progressed the farthest,not only in a negative sense but in an actively positive sense aswell."28Doctrinal legal commentary has been just as dramatic in itsassessment of changes in contract law that in effect recast exchange