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

457··-··Postscript· ---------------- --- --of constitution making as such. On a stronger reading, however,the argument expresses the special assumption that the impersonalrule of law is as fundamental as the violence of the Leviathan it issupposed to enchain.However, this liberal motif, which is explained by obvious historicalexperiences, does not do justice to the constitutive connectionbetween law and politics.9 It conflates popular sovereignty with themonopoly on violence and misses the inherently technical, and inany case nonrepressive, meaning of an administrative power (Macht)appearing in the form of law-insofar as this power is exercisedwithin the framework of democratic laws. Above all, it misses theconstitutive meaning that an intersubjectively exercised civic autonomyhas for every political community. To do justice to bothdemocratic self-determination and the rule of law requires a two- ·stage reconstruction. First, one starts with the horizontal sociationof citizens who, recognizing one another as equals, mutually accordrights to one another. Only then does one advance to the constitutionaltaming of the power ( Gewalt) presupposed with the mediumof law. By proceeding in two steps, one sees that the liberal rightsprotecting the individual against the state apparatus, with itsmonopoly on violence, are by no means originary but rather emergefrom a transformation of individual liberties that were at firstreciprocally granted. The individual rights linked with the legal codeas such acquire only secondarily the negative meaning of delimitinga private sphere that is supposed to be free from arbitraryadministrative interference. Rights against the state arise only as aconsequence of the process of differentiation in which a self-governingassociation of consociates under law becomes a legal communityorganized around a state. Such rights arise co-originally withthe constitutional principle of legality of administration; hence inthe conceptual construction of the system of rights, they do nothave the fun dam en tal position that Larmore gives them in order toground the primacy of human rights.4Positive law can no longer derive its legitimacy from a higherrankingmoral law but only from a procedure of presumptivelyrational opinion- and will-formation. Using a discourse-theoretic