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

45 1Postscriptdoes not coincide with freedom in the moral sense. It includes twofurther moments: the free choice of rationally deciding actors aswell as the existential choice of ethically deciding persons.In the first instance, individual rights have the character ofreleasing legal persons from moral precepts in a carefully circumscribedmanner and granting agents the scope for legitimate freechoice. With these rights, modern law as a whole upholds theprinciple that whatever is not explicitly prohibited is permitted.Whereas in morality an inherent symmetry exists between rightsand duties, legal duties only result as consequences of the protectionof entitlements, which are conceptually prior. However, privateautonomy does not simply mean free choice within legally secureboundaries; it also forms a protective cover for the individual'sethical freedom to pursue his own existential life project or, inRawls's words, his current conception of the good.2 A moraldimension first appears in the autonomy that enfranchised citizensas co-legislators must exercise in common so that everyone canequally eoy individual liberties. Unlike the moral autonomy thatis equivalent to the capacity for rational self-binding, then, theautonomy of the legal person includes three different components:the jointly exercised autonomy of citizens, and the capacitiesfor rational choice and for ethical self-realization.The exercise of legal autonomy divides into the public use ofcommunicative liberties and the private use of individual liberties.This differentiation is explained by the positivity of a law that stemsfrom the collectively binding decisions of lawmaking (and lawapplying)agencies. Hence conceptually it requires at least a provisionalseparation of roles between authors who make (and apply)valid law and addressees who are subject to law. However, if theautonomy of the legal person involves more than autonomy in themoral sense, then positive law cannot be conceived as a special caseof morality.2.2Other reasons also preclude a hierarchical conception of naturaland positive law. Moral and legal prescriptions each have differentreference groups and regulate different matters. The moral uni-