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

37Law as Social Mediation between Facts and Normsand thereby stopping criticism, authoritative norms and valuesprovided a framework for communicative actions that remainedwithdrawn from the vortex of problematization. The social integrationaccomplished through values, norms, and mutual understandingcomes to depend entirely on actors' own communicativeachievements only where norms and values are set communicativelyaflow and, with a view to the categorial difference betweenacceptability and mere acceptance, are exposed to the interplay offree-floating reasons.Under the modern conditions of complex societies, which requireself-interested and hence normatively neutralized action inbroad spheres, the paradoxical situation arises in which unfetteredcommunicative action can neither unload nor seriously bear theburden of social integration falling to it. Using its own resources, it .can control the risk of dissension built into it only by increasing therisk, that is, by making rational discourse permanent. What kind ofmechanism might allow an unfettered communication to unburdenitself of socially integrative achievements without compromisingitself? One plausible solution to the puzzle would be to"positivize" the law hitherto based in the sacred and interwovenwith conventional forms of ethical life ( Sittlichkeit) , that is, completelytransform it into enacted law. In other words, a system ofrules could be invented that both binds together and assignsdifferent tasks to the two strategies for dealing with the risk ofdissension found in communicative action, that is, the strategies ofcircumscribing communication and giving it unhindered play.On the one hand, the state's guarantee to enforce the law offers afunctional equivalent for the stabilization of behavioral expectationsby spellbinding authority. Whereas archaic institutions supportedby worldviews fix value orientations through rigidcommunication patterns, modern law allows convictions to bereplaced by sanctions in that it leaves the motives for rule complianceopen while enforcing observance. In both cases, destabilizationresulting from disagreement is avoided in virtue of the fact thatthe addressees cannot call into question the validity of the normsthey are supposed to follow. In the case of modern law, this"cannot" admittedly acquires a different, namely purposive-rational,sense, because the mode ofvalidity itself is changed. Whereas