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

429Paradigms of Lawcratic procedure for a politically autonomous elaboration of thesystem of rights. Policies that are adopted in a manner that does notconform to the conditions for the democratic genesis of law aremerely cloaked in juridical form. When this occurs, one also losesthe criteria by which these policies can be normatively assessed. Inthe execution of such programs, standards of effectiveness thatgovern the deployment of administrative power take the place ofstandards for the legitimacy oflegal regulation. In fact, this dangerseems to grow as the state is expected to take on an increasingnumber of tasks. Then the law, having been instrumentalized forpolitical goals and deprived of its internal structure, degenerates inthe eyes of an independent administrative system into one moremeans for solving problems of functional integration-and onlyfor solving such problems.69 On this premise, "the categorialdifference between the two standards [is] not developed butreinterpreted in an empiricist fashion. Legitimate political opinionandwill-formation, as well as efficient implementation, [are] modeledas two equivalent conditions of possibility for successfullychanging social structures through political planning."70In fact, however, legitimation problems cannot be reduced to theinefficiency of administrative steering. Legitimation deficits resultfrom disturbances in the democratic genesis of law, regardless ofhow such problems might be bound up with the effects of unsolvedsteering problems. To regard legitimation problems simply as adependent variable in steering problems is falsely to assume thatlaw, as mobilized by the active state, is handed over to opportunisticefforts to reconcile competing values in an arbitrary way. Thispicture is an artifact of a false paradigmatic understanding of law.Insofar as it has descriptive content, it simply results from aconfusion that can be cleared up with the proceduralist understandingof law: wherever normative standards become contingent,regulatory law has been uprooted from the soil of legitimatelawmaking. For such standards can develop only in those publicforums where individuals have the chance to recount their livedexperiences of repression and disrespect-and to argue for criteriain the light of which like cases can be treated alike and differentcases differently. To the extent that institutionalized deliberationand decision making loses contact with an uncoerced process of