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

416Chapter 9powers, compensation for material inequalities in life circumstancesand power positions helps realize legal equality. To thisextent, the dialectic between legal and factual equality has been aninconspicuous motor of legal development for quite some time.This relation grows into a dilemma, however, when welfare regulations,employing criteria o£ equal treatment in an attempt tosecure an actual equality in living situations and power positions,achieve this goal only under conditions or with instruments that, asfar as the presumptive beneficiaries are concerned, also severelylimit the vulnerable areas in which individuals can autonomouslypursue a private life plan. In his examination of the examplesmentioned above, Simitis has illuminated the critical point "wherethe possible gain in the material capacity to act changes into a newdependency."46 This point is reached when statutory regulations onwork and family life force employees or family members to conformtheir behavior to a "normal" work relation or a standard pattern ofsocialization; when the recipients of other compensations pay forthese with dependence on normalizing intrusions by employmentoffices, welfare agencies, and housing authorities, or when theymust accept court decisions that directly intervene in their lives; orwhen collective legal protection, the right to unionize, and so on,provide an effective representation of interests only at the cost ofthe freedom to decide by organization members, who are condemnedto passivefollowership and conformity. Each of th ese criticalcases concerns the same phenomenon: satisfying the materialpreconditions for an equal opportunity to exercise individualliberties alters living situations and power positions in such a waythat the compensation for disadvantages is associated with forms oftutelage that convert the intended authorization for the use offreedom into a custodial supervision.As is also clear in the case of social legislation,47 materialized lawis stamped by an ambivalence of guaranteeing freedom and takingit away, an ambivalence that results from the dialectic of legal andfactual equality and hence issues from the structure of this processof juridification. Still, it would be rash to describe this structureitself as dilemmatic.48 For the criteria by which one can identify thepoint where empowerment is converted into supervision are, evenif context-dependent and contested, not arbitrary.