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

417Paradigms of LawThese criteria express a clear normative intmtwn, which isinterpreted differently in different political cultures and in view ofchanging social situations. According to the discourse-theoreticreading of the system of rights, positive law, because it depends onthe decisions of a legislature, must split up the autonomy of legalpersons into the complementary relation between private andpublic autonomy, so that the addressees of enacted law can at thesame time understand themselves as authors o£ lawmaking. Bothsides of autonomy are essentially incomplete elements that refer totheir respective complement. This nexus of reciprocal referencesprovides an intuitive standard by which one can judge whether aregulation promotes or reduces autonomy. According to thisstandard, enfranchised citizens must, in exercising their publicautonomy, draw the boundaries of private autonomy in such a waythat it sufficiently qualifies private persons for their role of citizen.This is because communication in a public sphere that recruitsprivate persons from civil society depends on the spontaneousinputs from a lifeworld whose core private domains are intact. Atthe same time, the normative intuition that private and publicautonomy reciprocally presuppose each other informs public disputeover the criteria for securing the equal autonomy of privatepersons, that is, criteria that specifY what material preconditions oflegal equality are required at a given time. These criteria alsodetermine when a regulation results in formal legal discriminationor welfare-state paternalism. A legal program proves to be discriminatingif it is insensitive to how actual inequalities have side effectsthat in fact restrict the use of equally distributed liberties. And itproves to be paternalistic if it is insensitive to the freedom-restrictingside effects of the state's compensations for those inequalities.The recognition of claims to social benefits (and protection fromecological or technological threats) is justified in relative terms;such recognition is indirectly related to the guarantee of personalself-determination as a necessary condition for political self-determination.In this sense, Ulrich Preuss justifies welfare rights by thepurpose of securing an autonomous citizenship status:[Today] the inescapable starting point for citizenship qualifications is theequal freedom of each citizen regardless of his or her quite different