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

410---Chapter 9of the individual" is provoked by a welfare-state juridification thatthreatens to twist the declared goal of restoring private autonomyinto its opposite;34 finally, (c) the social-welfare project must neitherbe simply continued along the same lines nor be broken off,but must be pursued at a higher level of reflection. 35 The intentionis to tame the capitalist economic system, that is, to "restructure" itsocially and ecologically in such a way that the deployment ofadministrative power can be simultaneously brought under control.From the standpoint of effectiveness, this means training theadministration to employ mild forms of indirect steering; from thestandpoint of legitimacy, it means linking the administration tocommunicative power and immunizing it better against illegitimatepower. This path to realizing the system of rights under theconditions of a complex society cannot be adequately characterizedin terms of a specific legal form-reflexive law-that theprocedural paradigm oflaw would privilege in a manner similar tothe way the liberal and welfare paradigms once favored theircorresponding legal forms-formal and material law. 3(j Rather, thechoice of the respective legal form must in each case remain boundto the original meaning of the system of rights, which is to securethe citizens' private and public autonomy uno actu: each legal actshould at the same time be understood as a contribution to thepolitically autonomous elaboration of basic rights, and thus as anelement in an ongoing process of constitution making. I will fleshout the details of this background understanding by first examining,from the perspective of private law, some dilemmas of law inthe welfare state.379.2.1In the area of private law, we find a number of proposals forescaping welfare-state paternalism. One line of thought directsattention to the actionability of rights. This approach starts with theobservation that materialized law, because of its complex referencesto typical social situations, requires conflicting parties tohave a high level of competence.38 Rights can become sociallyeffective only to the extent that the affected parties are sufficientlyinformed and capable of actualizing, in the relevant cases, the legal