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

445Paradigms of Law ----- --- --- --- ---tion."94 The procedural paradigm is not distinguished from the twoearlier paradigms by its being "formal" in the sense of "empty" or"poor in content." In pointing to civil society and the politicalpublic sphere, it forcefully singles out points of reference fromwhich the democratic process acquires a different weight and a rolepreviously neglected in the realization of the system of rights. Incomplex societies, the scarcest resources are neither the productivityof a market economy nor the regulatory capacity of the publicadministration. It is above all the resources of an exhausted economyof nature and of a disintegrating social solidarity that require anurturing approach. The forces of social solidarity can be regeneratedin complex societies only in the forms of communicativepractices of self-determination.The project of realizing the system of rights-a project specificallydesigned for the conditions of our society, and hence for aparticular, historically emergent society-cannot be merely formal.Nevertheless, this paradigm of law, unlike the liberal andsocial-welfare models, no longer favors a particular ideal of society,a particular vision of the good life, or even a particular politicaloption. It is "formal" in the sense that it merely states the necessaryconditions under which legal subjects in their role of enfranchisedcitizens can reach an understanding with one another about whattheir problems are and how they are to be solved. The proceduralparadigm is certainly connected with the self-referential expectationof shaping not only the self-understanding of elites who dealwith law as experts but that of all participants. But this expectationdoes not aim at indoctrination and has nothing totalitarian aboutit-to anticipate an objection that, though far-fetched, is leveledagainst discourse theory again and again. For the new paradigm isup for discussion under its own conditions: to the extent that itwould shape the horizon of a preunderstanding within whicheveryone could take part in the interpretation of the constitution,each sharing the labor in her own way, every perceived historicalchange in the social context would have to be conceived as achallenge to reexamine the legal paradigm itself. Certainly thisunderstanding, like the rule of law itself, retains a dogmatic core:the idea of autonomy according to which human beings act as freesubjects only insofar as they obey just those laws they give them-