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537Notes to pages 190-19662. I. Maus, "Verrechtlichung, Entrechtlichung und der Funktionswandel vonInstitutionen," in Maus, Rechtstheorie und politische Theorie, pp. 277-331.63. Mashaw, Due Process, p. 22.64. Mashaw, Due Process, pp. 26f.65. A glance at the structures of local self-government (kommunalenSelbstverwaltung) is enough to show that a linear correlation of principles of theconstitutional state with corresponding forms of its organizational realizationwill not work. As is well known, municipal structures cannot be forced into theclassical schema for the separation of powers. Local self-government is includedin the general national administration only because, from a legal viewpoint,"municipal law is at bottom organizational law and thus closely interacts with thelaw governing the organization of Lander'' (D. Czybulka, Die Legitimation derof!entlichen Verwaltung [Heidelberg, 1989] , p. 195). From a functional point ofview, however, the decentralization of comprehensive powers at this grassrootslevel of decision making facilitates an organizational intertwining of governmentalfunctions that is still compatible with the logic of separated powers. Althoughmunicipalities do not have legislative powers at their disposal, they do have thepower to pass local ordinances ( Satzungsautonomie) . Legitimation through generalelections that are more personalized, the parliamentary form of willformation,the voluntary participation of laypersons, etc., enables local citizensto exert a comparatively strong influence on the programs and course of auniversal administration, an influence that goes beyond other models of participatoryadministration (or "organized participation of those concerned"). It is allthe more difficult to enforce the principle of separation of state and society. Thistype of organization remains susceptible to the informally exerted pressure ofsocially powerful persons or groups. I use the example of local self-governmentmerely to recall the fact that the principles of the constitutional state are notimmediately mirrored at the organizational level of political institutions or evenat the level of the political process. Therefore, it is by no means the case that allthose phenomena that seem to speak against the classical schema for theseparation of powers in fact support objections against the underlying logic ofthat separation itself.Chapter 5l. N. Luhmann, Ausdifferenzierung des Rechts (Frankfurt am Main, 1981), pp. 35ff.2. Prior to an actual conflict, actors do not have a "legal consciousness" honedto protect their own interests.3. It is from this standpoint that Ronald Dworkin draws the distinction between"law" and ')ustice": 'Justice is a matter of the correct or best theory of moral andpolitical rights . ... Law is a matter of which supposed rights supply a justificationfor using or withholding the collective force of the state because they areincluded in or implied by actual political decisions of the past." R. Dworkin,Law 's Empire (Cambridge, Mass., 1986), p. 97.