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

437Paradigms of Law9.3.2Legal paradigms make it possible to diagnose situations so as toguide action. They illuminate the horizon of a given society in viewof the project of realizing the system of rights. To this extent; theyprimarily have a world-disclosive function. Paradigms open upinterpretive perspectives from which the principles of the constitutionalstate (in a specific interpretation) can be related to the socialcontext as a whole. They throw light on the restrictions andpossibilities for realizing basic rights, which, as unsaturated principles,require further interpretation and elaboration. Hence theproceduralist paradigm, like all others, also contains both normativeand descriptive components.On the one hand, the discourse theory of law conceives constitutionaldemocracy as institutionalizing·-by way of legitimate law(and hence by also guaranteeing private autonomy)-the proceduresand communicative presuppositions for a discursive opinion-and will-formation that in turn makes possible (the exercise ofpolitical autonomy and) legitimate lawmaking. The communicationtheory of society, on the other hand, conceives the constitutionallyorganized political system as one among several subsystems. Thissystem can serve as backup surety for problems of overall socialintegration. It does so through an interplay of institutionalizedopinion- and will-formation with informal processes of publiccommunication. The political system can succeed at this insofar asit is embedded, through a public sphere based in civil society, in alifeworld context shaped by a liberal political culture and correspondingsocialization patterns. Finally, a specific conception of lawestablishes the relationship between the normative and the empiricalanalyses. According to this conception, legal communicationcan be conceived as a medium through which the structures ofrecognition built into communicative action are transferred fromthe level of simple interactions to the abstract level of organizedrelationships. The web of legal communication is even capable ofembracing complex societies as a whole. The proceduralist legalparadigm, I should add, results from a contest of paradigms. Itpresupposes that the welfare and liberal models oflaw construe therealization of rights in overly concrete terms and conceal the internalrelation between private and public autonomy, a relation that must