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

444Chapter 9extensive democratization, the constitutional state itself will beendangered. We could gather further evidence for this thesis if wewere to go beyond our limited focus on national societies and, as anepoch of decolonization draws to a close, broaden our view to takein the international order of the world society. The legitimationsenlisted by the allies for the Gulf War provide evidence of aprogressive denationalization ofinternational law.91 This examplereflects the trends toward the dissolution of the sovereignty of thenation-state. Against the horizon of an emerging global publicsphere, such trends could signal the beginning of a new universalistworld order.92 In view of the pressing problems mentioned in thepreface, this is naturally no more than a hope-indeed a hope bornof desperation.If one counters such reformist perspectives with the usual argumentsreferring to complexity, then one conflates legitimacy andefficiency. Moreover, one fails to realize that the institutions ofgovernment by law were always already set up not only to reducecomplexity but also to maintain it through countersteering so as tostabilize the tension inherent in law between facticity and validity.At the same time, when I infer from the proceduralist legalparadigm certain consequences for understanding the "crisis ofthe constitutional state," I am certainly not offering anythingoriginal at the level of particular details. But this paradigm canprovide a certain coherence to the reform efforts that are eitherunder discussion or already under way.If a utopia is equivalent to the ideal projection (Entwurf) of aconcrete form of life, then the constitution taken as a project(Projekt) is neither a social utopia nor a substitute for such. Thisproject is, in fact, just the "opposite from the utopia in whichcollective reason and secularized omnipotence are unified andinstitutionalized in the state: rather, it implies the idea of civilsociety and its capacity to regulate itself in discursive processes andthrough clever institutionalization."9 Ulrich Preuss defines "constitution"as the establishment of a fallible learning process throughwhich a society gradually overcomes its inability to engage innormative reflection on itself: "A society is constituted when it isconfronted with itself in suitable institutional forms ' and normativelyguided processes of adjustment, resistance, and self-correc-