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

427Paradigms of Lawunderstanding of law opens a perspective for the determinatenegation of injustices that can be identified here and now:Although we cannot know a priori what the good society will be, we knowmore than enough about what it will not be to provide a current agenda.It will not be a society with wide gender disparities in status, power andeconomic security. Nor will it be a society that limits women's reproductivefreedom, tolerates substantial poverty, violence, and racial injustice,or structures its workplace without regard to family needs. Finally, andmost fundamentally, it will not be a society that denies many of itsmembers substantial power over the terms of their daily existence. Torealize its full potential, feminism must sustain a vision concerned notonly with relations between men and women but also with relationsamong them. The commitment to sexual equality that gave birth to thewomen's movement is necessary but not sufficient to express the values .underlying that movement.6"9.3 Crisis Theories and the Proceduralist Understanding of LawUp to this point I have discussed the procedural paradigm oflaw inregard to the realization of rights. However, the new legal understandingalso, indeed primarily, pertains to the problem of howconstitutional democracy can be consolidated in complex societies.As we have seen, the transition to the social-welfare model wasjustified by the fact that rights can be violated not only by theadministration's unlawful intrusions but also by its withholding ofservices necessary for the actual exercise of rights. The structuraltransformation of society reawakened an awareness of the implicitcontent of the universal right to equal liberties. This did not bringnew normative viewpoints into play:The assumption characterizing the [liberal] paradigm of formal law, thatonly an individualistic justice would guarantee social solidarity, that onlythe freedom of contract would ensure an effective and just protection ofgood faith , proved untenable. Hence the fact that positive duties toprovide certain benefits increasingly appeared beside negative rightsagainst intrusion did not imply any fundamental transformation in theidea of a law grounded in the principle of reciprocity. 57What did change, though, was the peculiarly ambivalent effect ofthe new kind of social entitlements. Such rights unambiguously