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

454Postscript3The internal relation between the rule of law and democracy canbe explained at a conceptual level by the fact that the individualliberties of the subjects of private law and the public autonomy ofenfranchised citizens make each other possible. In political philosophy,this relation is typically presented in such a way that theprivate autonomy of members of society is guaranteed by humanrights (the classical rights to "life, liberty, and property") and ananonymous rule of law, whereas the political autonomy of enfranchisedcitizens is derived from the principle of popular sovereigntyand takes shape in democratic self-legislation. In the tradition,however, the relation between these two elements is marked'by anunresolved competition. The liberalism going back to Locke has, atleast since the nineteenth century, invoked the danger of tyrannicalmajorities and postulated a priority of human rights in relationto popular sovereignty, whereas the civic republicanism reachingback to Aristotle has always granted priority to the political "libertyof the ancients" over the unpolitical "liberty of the moderns." EvenRousseau and Kant missed the intuition they wanted to articulate.Human rights, which for Kant are summarized in the "original"· right to equal individual liberties, must neither be merely imposedon the sovereign legislator as an external constraint nor beinstrumentalized as a functional requisite for the sovereign's legislativeaims.Human rights might be quite justifiable as moral rights, yet as soonas we conceive them as elements of positive law, it is obvious that theycannot be paternalistically imposed on a sovereign legislator. Theaddressees oflawwould not be able to understand themselves as itsauthors if the legislator were to discover human rights as pregivenmoral facts that merely need to be enacted as positive law. At thesame time, this legislator, regardless of his autonomy, should not beable to adopt anything that violates human rights. For solving thisdilemma, it now turns out to be an advantage that we have characterizedlaw as a unique kind of medium that is distinguished frommorality by its formal properties.r A constitution-making practice require·s more than just a disdourseprinciple by which citizens can judge whether the law they