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

433Paradigms of Laware dependent on prognoses, and require self-correction; thepreventive norms of the legislature can only partially regulate theseactivities and link them to the democratic process. On the otherhand, the imperative legal instruments for classical prevention,geared more to material risks than to potential threats to largegroups of people, are failing. In view of the discretionary latitudethat the increasingly prevention-oriented administration must surmountby referring to contested technical considerations, even adynamic reading ofbasic rights and the protection they afford doesnot guarantee sufficient legal protection: "merely granting proceduralstanding in place of clear substantive entitlements does notby any means improve the situation of those affected."H0 In thiscontext, Denninger observes that "the accent has shifted from asystem based on a certainty of law [Rechtssicherheit] to one based ona security of legal values [Rechtsg;Utersicherheit] " that "modifies anddissolves" individual legal protection.81 In addition, the welfarestatedialectic of empowerment and tutelage is accelerated insofaras constitutional control of the state's duty to protect has the effectof building up and arming the constitutional state to the pointwhere it becomes the "security state" (Sicherheitsstaat)82: "This isespecially true of the transformation of the boundary conditions ofconstitutional freedom that occurs when a society produces somany security risks that it is able to protect threatened constitutionalvalues only by considerably expanding the surveillanceapparatus. "H3The independence of administrative power vis-a-vis a marginalizedlegislature, however, is not the only effect of the growth in regulatorytasks. This growth involves the state in bargaining with socialsubsystems, large organizations, associations, and such, which, to aconsiderable extent, resist legal imperatives (effected throughsanctions, fees, or financial incentives). Such systems and organizationsare open only to persuasive means: "There is no duty to obeythat corresponds to indirect measures for redirecting behavior. ...Policies thus become the topic of negotiations in which the privateaddressees can have their willingness to comply honored by thestate . ... State and society meet at the same level."84 State sovereigntyis undermined to the extent that powerful corporations areinvolved in the exercise of political authority without being legiti-