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

434Chapter 9---- --·--------· - - - -------- -mated for this and without submitting to the usual responsibilitiesincumbent on government authorities. As already mentioned,social actors equipped with paraconstitutional bargaining powerare increasingly difficult to contain within the constitutional framework.Even the political parties, which, according to the GermanBasic Law, Article 21, are entitled to "participate in forming thepolitical will of the people," have now become an independentpower cartel integrating all branches of government-a cartel thatis not provided for in the Constitution, and for good reason. Onceacting as catalysts in the conversion of public opinion into communicativepower, parties have taken possession of the core areas ofthe political system without fitting into the functional separation ofpowers. They exercise paragovernmental integrative functions,indeed in three ways: (a) through their powers to recruit personnel,powers that extend to the administration, judiciary, massmedia, and other social sectors; (b) by shifting political decisionsfrom committees with formal responsibility to the back rooms ofinformal agreements and interparty arrangements; and (c) byinstrumentalizing the public sphere to gain access to administrativepositions.How one formulates and assesses this or that crisis diagnosis isopen to dispute. But these diagnoses point to crisis tendencies inthe constitutional state, to which the proper response is neitherappeasement85 nor a return to the liberal understanding of governmentby law. But the conclusion that the complexity of newgovernmental tasks inevitably overburdens the legal medium assuch is not compelling. The socially integrating force of law wouldbe structurally overburdened only if the crisis of the constitutionalstate were to prove hopelessly insoluble. I suspect that the suggestionof an aporia is an artifact; it results from an understanding of lawthat is biased toward functionalism and fixated on administrativeprocesses.This latter interpretation is based on a certain periodization ofthe growing complexity of governmental tasks. According to thisscheme, the state had to specialize initially in the classical task ofpreserving order, later in the just distribution of social compensations,and finally in the management of collective risks. The tasksof taming absolutist state power, overcoming the poverty gener-