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

461Postscript5Law is not a narcissistically self-enclosed system, but is nourished bythe "democratic Sittlichkeit" of enfranchised citizens and a liberalpolitical culture that meets it halfway.17 This becomes clear whenone attempts to explain the paradoxical fact that legitimate law canarise from mere legality. The democratic procedure oflawmakingrelies on citizens' making use of their communicative and participatoryrights also with an orientation toward the common good, anattitude that can indeed be politically called for but not legallycompelled. Like all individual rights, the form of political rights isalso such that they merely grant spheres for free choice and onlymake legal behavior into a duty. Despite this structure, however,they can open up the sources oflegitimation in discursive opinionandwill-formation only if citizens do not exclusively use theircommunicative liberties like individual liberties in the pursuit ofpersonal interests, but rather use them as communicative libertiesfor the purpose of a "public use of reason." Law can be preservedas legitimate only if enfranchised citizens switch from the role ofprivate legal subjects and take the perspective of participants whoare engaged in the process of reaching understanding about therules for their life in common. To this extent, constitutionaldemocracy depends on the motivations of a population accustomedto liberty, motivations that cannot be generated by administrativemeasures. This explains why, in the proceduralist paradigm oflaw,the structures of a vibrant civil society and an unsubverted politicalpublic sphere must bear a good portion of the normative expectations,especially the burden of a normatively expected democraticgenesis of law.Not surprisingly, this brings out the skeptic in both the socialscientist and the legal scholar. As an empiricist, the former teachesus about powerless ideas that always look foolish in the face ofinterests; as a pragmatist, the latter teaches us about the hardenedconflicts that can be dealt with only by calling on the backing of asubstantial state power. It is precisely the discourse-theoretic approachthat introduces a realistic element insofar as it shifts theconditions for a rational political opinion- and will-formation fromthe level of individual or group motivations and decisions to thesocial level of institutionalized processes of deliberation and deci-