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

32---Chapter 1so that each's freedom of choice can coexist with the freedom of all.Moral laws fulfill these conditions per se, but for legal statutes, theymust be satisfied by the political legislator. The process of legislationthus represents the place in the legal system where socialintegration first occurs. For this reason, it must be reasonable toexpect those who participate in the legislative process, whetherdirectly or indirectly, to drop the role of private subject and assume,along with their role of citizen, the perspective of members of afreely associated legal community, in which an agreement on thenormative principles for regulating social life either has alreadybeen secured through tradition or can be brought about deliberativelyin accordance with normatively recognized procedures. Wehave already clarified the unique combination of facticity andlegitimacy in individual rights that equip legal persons with enforceableentitlements to pursue their own interests strategically.This combination requires a process of lawmaking in which theparticipating citizens are not allowed to take part simply in the roleof actors oriented to success. To the extent that rights of politicalparticipation and rights of communication are constitutive for theproduction of legitimate statutes, they must not be exercised bypersons who act merely as private subjects of civil law. Rather, theserights must be exercised in the attitude of communicatively engagedcitizens. Hence, the concept of modern law, which bothintensifies and behaviorally operationalizes the tension betweenfacticity and validity, already harbors the democratic idea developedby Rousseau and Kant: the claim to legitimacy on the part of a legalorder built on rights can be redeemed only through the sociallyintegrative force of the "concurring and united will of all" free andequal citizens.We will deal with the idea of civic autonomy in detail later. For themoment, note simply that it recalls the fact that coercible laws mustprove their legitimacy as laws of freedom in the process-and by thekind ofprocess-oflawmaking. Moreover, in this process of enactinglaw, the tension between facticity and validity is reproduced yetagain, though it takes a different form than it does in establishedlaw. To be sure, legal behavior can be described as compliance withnorms that have been backed with the threat of sanction and haveacquired the force of law through the decisions of a political