Reynaldo 1

Kristine Marie T. Reynaldo

Prof. Zosimo Lee
Philo 280
24 February 2015
CHAPTER 3
A RECONSTRUCTIVE APPROACH TO LAW I: THE SYSTEM OF RIGHTS
I.

Private and
Sovereignty

Public

Autonomy,

Human

Rights,

and

Popular

I.1. On the tensions between subjective/individual rights and

objective/social law in the context of the paradigm shift within
private-law theory from bourgeois formal law to the materialized law
of the welfare state
A.

In German civil-law jurisprudence, subjective right was initially

influenced by the idealist philosophy of right that maintained that
such a right is legitimate per se because the inviolability of the
person is supposed to guarantee an area of independent rule
(Herrschaft) for the free exercise of individual will.
1.
Savigny emphasizes the connection between individual
liberties and the intersubjective recognition of those liberties
by legal consociates.
2.
Puchta views individual liberties as negative rights that
protect spheres of action by preventing others from
intervening without permission in the freedom, life, and
property of the individual.
3.
Thus, private autonomy is secured primarily through contract
and property rights.
B. Law in general lost its idealist legitimating force in the later 19 th
century as positivist thinkers challenged the Kantian assumption
that the legal subjects private autonomy was founded on the
persons moral autonomy as a function of universal natural law.
1.
Windscheid maintained that it was the legal order that
conferred the power of will on the individual with the force of
de facto bindingness.
2.
Iherings utilitarian interpretation of right extended it beyond
the class of negative liberties to a right to share in organized
services for the satisfaction of human interests.

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3.

Kelsen adds to Windscheids conception of rights the idea that

individual rights, in being guaranteed by law, have both
normative and actual validity, for not only do legal norms
establish prescriptions and permissions, but the coercive
power of state sanctions qualifies the lawgivers will to
become the will of the state.
4.
Thus Kelsen not only dissociates individual rights from the
intrinsic value of free will, thereby detaching the legal subject
from the moral and natural person, but he also introduces the
view of the law as a fully self-referential system of selfproduced fictions.
5.
Luhmann, in a further naturalistic systems theory, maintains
that the legal order creates the logical space for the legal
subject in order to obligate duties, to norm norms, thus
conceiving rights along functionalist lines devoid of moral
considerations.
C. Postwar Germany decried the functionalist hollowing out of the
moral substance of rights under Nazism, but no longer was it
convinced by the individualistic orientation of subjective right,
whose very conception invited a functionalist interpretation of
private law as the framework for capitalism.
D. Raiser, in an attempt to correct the individualistic approach to
private law and restore its moral content, draws in social law to
restrict subjective right.
1.
In the welfare-state materialization of private law, classical
liberties serve to secure self-preservation and individual
responsibility, but they must be supplemented by social rights
that integrate the individual by law into larger ordered
networks of relationships and social practices.
2.
In emphasizing the need to develop and protect the legal
institutions in which the individual assumes the status of
member, Raiser reminds us of the intersubjective character of
rights, which presupposes social cooperation among subjects
who recognize one another, in their reciprocally related rights
and duties, as free and equal citizens.
3.
Since this mutual recognition is constitutive for a legal order
from which actionable rights are derived, subjective rights
emerge co-originally with objective law.
E. Habermas points out that despite the clearly mutually constitutive
relationship between private and civic autonomy, the
developments in private-law theory (from the investment of

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subjective rights with moral authority independent of legislation

under liberal bourgeois formal law, to the positivist
subordination of those rights to objective law, to the
reinterpretation of classical liberties under social-welfare
materialized law) still fail to explain the source of the legitimacy
of law in such a way that preserves and bridges the intrinsic
moral content of classical liberties and the intersubjective
meaning of legally defined ones.
I.2. On how the principle of law bridges individual and public selflegislation by way of a Kantian reading of Hobbes
A. In response to Hobbes, who attempted to justify a system of rights
on the basis of participants enlightened self-interest alone, Kant
grounded the principles of law and democracy on moral
autonomy, for all three principles express the idea of selflegislation.
B. According to Hobbes, the sovereign can impart his commands
only in the language of modern law, with which he guarantees
order in internal affairs by assuring private persons equal
liberties.
C. For Hobbes, the legitimacy of law cannot be managed within an
established legal order, that is, through political rights and
democratic legislation, but only by the constitution of state
authority that dissolves the tension between facticity and validity
in a system of well-ordered egoism.
1.
Absolutist society is instrumental for all participants to keep
to a strictly purposive-rational calculation of their interests.
2.
The utilitarian grounding of the bourgeois order of private
law bestows material justice on the sovereign, who by
definition can do nothing unlawful.
D. Though Hobbes explains why it is in the interests of all
participants within civil society to relinquish some of their
freedoms to state authority under a social contract, he fails to
show why such a system could be preferred by each isolated,
purposive-rational actor while still in the state of nature.
E. One may expect subjects in the state of nature to make a
rationally motivated transition from their state of permanent
conflict to a cooperation under coercive law under two conditions:
1.
Parties must have learned to take the perspective of the
other to understand that freedom within this social

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F.

G.

H.

I.

relationship is based on the principle of reciprocity or mutual

recognition.
2.
Parties must be capable of assuming the social perspective of
the first-person plural to judge whether the reciprocity of
coercion lies in the equal interests of all and hence can be
willed by all the participants.
Since morally impregnating the state of nature by assuming the
above contradicts the naturalism presupposed by Hobbes, he fails
to answer the empiricist question of how a system of rights can be
explained by the interlocking interest positions and utility
calculations of accidentally related rational actorsa failure Kant
reacts to.
Kant notes the structural difference between the social contract,
which serves as a model for legitimation and is therefore an end
in itself, and the private contract, which regulates exchange
relationships for determinate ends and acquires validity from the
performative conditions laid down by the social contract.
For Kant, the single innate human right to equal liberties
grounded in the autonomous will of moral persons is
institutionalized in the social contract and differentiated into a
system of rights that guarantees individual autonomy and popular
sovereignty that enables democratic procedure within positive
law.
Thus, the principle of law seems to mediate between the principle
of morality and the principle of democracy, but how these three
principles are related remains unclear, because Kant, like
Rousseau, assumes a competition between morally grounded
human rights and the principle of popular democracy.

I.3. Excursus: On why human rights and the principle of popular

sovereignty still constitute the sole ideas that can justify modern law
A. Human rights and popular sovereignty have determined the
normative self-understanding of constitutional democracies up to
the present day since they reflect the rationality potential that
mediates between the facticity/positivity of law and the
validity/legitimacy claimed by it.
B. The classical doctrine of natural law still reflected an ethos that
extended through all social classes of the population and clamped
together the different social orders.
1.
In the vertical dimension of components of the lifeworld, this
ethos ensured that cultural value patterns and institutions

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C.

D.

E.

F.

sufficiently overlapped with the action orientations and

motives fixed in personality structures.
2.
On the horizontal level of legitimate orders, this ethos allowed
the normative elements of ethical life, politics, and law to
intermesh.
The rationalization of the lifeworld laid this ethos open to
question, which reduced its stabilizing forces of received
practices and interpretations to mere conventions differentiated
from conscientious decisions arrived at through reflection and
independent judgment, that is, through the use of practical reason
to settle questions of ethics (self-realization) differentiated from
questions of morality (self-determination).
In modern societies, ethics assumed a new, subjectivistic sense
that replaced received models of the good life with radicalized
interiority burdened with the task of individual identityconstruction in which self-knowledge and existential decision
interpenetrate.
1.
This intrusion of reflection into the life-historical process
generates a new kind of tension between the consciousness of
contingency, self-understanding, and liability for ones own
existence.
2.
To the extent that conflicts arising from this tension, if not
consciously and deliberately resolved, disrupt patterns of
socialization, the rise of ethical-existential or clinical
discourses becomes unavoidable.
The demand for self-understanding, coupled with the rise of the
hermeneutical and social sciences, made the appropriation of
shared traditions problematic, and historicism displaced religious
or metaphysical interpretations of peoples and cultures.
1.
While the posttraditional understanding of collective identity
was first formed in relation to historicism and nationalism,
the disintegration of nationalist dogma and national histories
heightened pluralism.
2.
To the extent that collective identities can develop only in the
fragile, dynamic, and fuzzy shape of decentered, even
fragmented, public consciousness, ethical-political discourses
have become necessary.
The predominance of individualism in personal life projects and
the pluralism of collective forms of life have revolutionized our
normative consciousness by heightening the need for justification

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that, under the conditions of postmetaphysical thinking, can be

met only by moral discourses.
1.
Since moral deliberations require a perspective freed of all
egocentrism or ethnocentrism, and equal respect for each
person and equal consideration for the interests of all,
normative claims are suckered into a whirlpool of
problematization.
2.
Given persons who develop a principled moral consciousness
and orient their action by the idea of self-determination, a just
society must guarantee moral autonomy (individual selflegislation) and political freedom (democratic self-legislation).
G. With the reflexivity of cultural transmission and processes of
socialization, and the specialized nature of posttraditional
justification, practical orientations can be gained only from
rational discourse, that is, from rationality potentials built into
communicative action and released in discourse that penetrates
lifeworld structures and sets them aflow.
1.
Individual formation finds standards in the expressivist ideal
of self-realization, the deontological idea of freedom, and the
utilitarian maxim of expanding ones life opportunities.
2.
The ethical substance of collective forms of life takes its
standards, on the one hand, from utopias of non-alienated,
solidary social life within the horizon of traditions that have
been self-consciously appropriated and critically passed on,
i.e. communist utopias.
3.
On the other hand, it looks to models of a just society whose
institutions are so constituted as to regulate expectations and
conflicts in the equal interest of all, e.g. the social-welfare
state.
H. Unlike the realms of personality structures and culture, which
offer less resistance to the whirlpool of problematization, the third
component of the lifeworld, society as the totality of legitimate
orders, is more intensely concentrated in the legal system, which
must bear the burden of integrating social functions while
avoiding conflict with individual self-realization and collective selfdetermination.
I.4. On the tension or unacknowledged competition between human
rights and popular sovereignty
A. Human rights and the principle of popular sovereignty still
constitute the sole ideas that can justify modern law because they

Reynaldo 7

are affiliated with the dimensions of self-realization and selfdetermination that constitute the normative substance of
posttraditional justification.
1.
In the United States, liberal traditions conceive human
rights as the expression of moral self-determination.
2.
Civic republicanism interprets popular sovereignty as the
expression of ethical self-realization.
3.
From both perspectives, human rights and popular
sovereignty do not mutually complement so much as compete
with one another.
B. Michelman sees in the American constitutional tradition a tension
between the impersonal rule of law founded on innate human
rights and the spontaneous self-organization of a community that
makes its law through the sovereign will of the people.
1.
Liberals prioritize prepolitical individual liberties, while
republicans emphasize the intrinsic, noninstrumentalizable
value of civil self-organization that binds human rights to
political community.
2.
Liberals take human rights as a given anchored in a fictive
state of nature, while republicans do not recognize anything
that does not correspond to a self-actualizing collectivitys
authentic life project.
3.
For liberals, the moral-cognitive moment predominates, while
for republicans, it is the ethical-volitional that does.
C. Kant suggests a more liberal reading of political autonomy.
1.
He obtains the universal principle of law by applying the
moral principle to external relations, that is, by backing the
right to individual liberties with authorized coercion.
2.
He explains political autonomy on the basis of an internal
connection between popular sovereignty and human rights,
that is, by assuming that no one exercising civic autonomy
could agree to laws infringing on her private autonomy.
D. Rosseau suggests a more republican reading of political
autonomy.
1.
He starts with the constitution of civic autonomy and from it
infers an internal relation between popular sovereignty and
human rights: because the sovereign will of the people can
express itself only in the language of laws, it has directly
inscribed in it the right of each person to equal liberties.
2.
Thus the procedurally correct exercise of popular sovereignty
simultaneously secures human rights.

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E.

However, Rosseau counts too much on the political virtues of a

citizen anchored in the ethos of a small and perspicuous
community integrated through shared cultural traditions; absent a
more or less homogenous macrosubject, the single alternative to
ensure the rule of law is state coercion.
F. The noncoercive mediation of a normatively construed moral will
and the free choice of individuals with differentiated interest
positions would require a genuinely moral and universalistic
standpoint as is expressed in Kants principle of law.
G. The claim that a norm lies equally in the interest of everyone
implies that all those possibly affected should be able to accept
the norm on the basis of good reasons.
H. Thus, the internal connection between popular sovereignty and
human rights lies in the normative content of the very mode of
exercising political autonomy: through the communicative form of
discursive processes of opinion- and will-formation.
I. The co-originality of private and public autonomy means that a
system of rights ensures the universal right to equal liberties, not
only to set an external constraint on the sovereign legislator, nor
merely to be instrumentalized as a functional prerequisite for the
legislators aims, but to enable self-legislation, according to which
the addressees of law are simultaneously authors of their own
rights.

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II.

Moral Norms and Legal Norms: On the Complementary Relation

between Natural Law and Positive Law
II.1.
On the distinctions between the principles of democracy and
morality
A. At the postmetaphysical level of justification, legal and moral
rules are simultaneously differentiated from traditional ethical life
and appear side by side as two different but mutually
complementary kinds of action norms.
1.
Thus the concept of practical reason can assume a different
meaning depending on which kind of norm is at issue: a moral
principle or a democratic one.
2.
Human rights, which are inscribed in citizens practice of
democratic self-determination, must be conceived from the
start as rights in the juridical sense, their moral content
notwithstanding.
B. Kant, in his Introduction to the Metaphysics of Morals, starts
with basic concepts of moral law and theory (e.g. will and free
choice, action and incentive, duty and inclination) and obtains
juridical laws and legal theories from them by way of limitation in
three dimensions (to be elaborated later in II.2.A):
1.
The free choice of addressees
2.
The external relations of one person to another
3.
The coercive power that one is entitled to exercise with
respect to another in the case of infringement
C. This construction, according to which the principles of law reflect
and limit moral principles, is guided by the Platonic intuition that
the legal order imitates the noumenal order of a kingdom of
ends and at the same time embodies it in the phenomenal world,
i.e. the world of legal communities situated in historical time and
social space.
1.
This implies that a legal order can be legitimate only if it does
not contradict basic moral principles.
2.
In the modern world, however, is no hierarchy of norms
autonomous morality and the enacted law that depends on
justification stand in a complementary relationship.
D. Morality and law differ prima facie inasmuch as posttraditional
morality represents only a form of cultural knowledge, whereas
law has, in addition to this, a binding character at the institutional
level, and is thus not only a symbolic system but an action system
as well.

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E.

Basic rights (Grundrechte) are not just imitations of moral rights,

nor is political autonomy a mere copy of moral autonomy; rather,
norms of action branch out into moral and legal rules, just as
moral and civic autonomy are co-original and can be explained
with the help of a parsimonious discourse principle (D).
F. D: Just those action norms are valid to which all possibly affected
persons could agree as participants in rational discourses.
1.
Valid pertains to action norms and all the general normative
presuppositions that express the meaning of such norms,
indifferent to the distinction between morality and legitimacy.
2.
Action norms are temporally, socially, and substantively
generalized behavioural expectations.
3.
Those affected (or involved) include anyone whose interests
are touched by the foreseeable consequences of a general
practice regulated by the norms at issue.
4.
Rational discourse should include any attempt to reach an
understanding over problematic validity claims insofar as this
takes place under conditions of communication that enable
the free processing of topics, information, and reasons in the
public space constituted by illocutionary obligations.
5.
Rational discourse also indirectly refers to discursively
grounded and procedurally regulated bargaining this
bisemic use of the term bridges communicative and strategic
action.
G. D lies at a level of abstraction that is neutral with respect to
morality and law, for it refers to action norms in general, and in
its practice, we cannot limit a fortiori the kinds of topics,
contributions, and reasons that count in each case.
1.
The moral principle results from specifying the general
discourse principle for those norms that can be justified if and
only if equal consideration is given to the interests of all those
who are possibly involved.
2.
The principle of democracy results from specifying those
action norms that appear in legal form and can be justified by
calling on reasons of a pragmatic, ethical-political (form of
life) or moral (humanity) nature.
3.
Oppositions between interests require a rational balancing of
competing value orientations and interest positions, with
reference to the totality of social or subcultural groups
directly involved, resulting in compromises that are

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H.

I.

J.

K.

L.

acceptable to all parties, even on the basis of different

reasons.
D is only intended to explain the point of view from which action
norms can be justified; its application presupposes that practical
questions can be judged impartially and decided rationally
through various types of discourse, with corresponding points of
reference and kinds of reasons.
1.
For the justification of moral norms, D takes the form of a
universalization principle.
2.
For the application of moral norms to particular cases,
universalization is replaced by a principle of appropriateness.
Discourse theory conceives of morality as an authority that
crosses the boundaries between private and public spheres, i.e.
between social relationships for which one is personally
responsible, and institutionally mediated spheres of interaction.
1.
The universalist claim of the moral principle relocates ideal
role-taking from a private undertaking (Kant) to a public
practice implemented by all in common.
2.
Just as a political legislator has to include the moral aspects
of the matter in need of regulation, so can morality become
effective in complex societies beyond the local level only by
being translated into the legal code.
The principle of democracy should establish a procedure of
legitimate lawmaking, for only those statutes that can meet with
the assent (Zustimmung) of all citizens in a legally constituted,
discursive process of legislation may claim validity.
Whereas the moral principle operates at the level at which the
form of argumentation is internally constituted, the democratic
principle already presupposes the possibility of valid moral
judgments and refers to the level at which interpenetrating forms
of argumentation are externally institutionalized, viz. through a
system of rights that secures for each person an equal
participation in a process of legislation.
Given that legal norms, rather than being naturally emergent,
constitute an intentionally produced reflexive layer of action
norms, the principle of democracy must steer the production of
the legal medium itself, in addition to establishing a procedure for
legitimate lawmaking.
1.
The democratic principle must specify rights suitable for the
constitution of a legal community and provide the medium for
this communitys self-organization.

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2.

The democratic principle must also create the language in

which a community can understand itself as a voluntary
association of free and equal consociates under the law.
M. A required system of rights is supposed to solve two tasks:
1.
It should institutionalize the communicative framework for a
rational political will-formation.
2.
It should ensure the very medium in which this will-formation
can express itself as the common will of freely associated
legal persons.
II.2.
A.

On the formal characteristics of the medium of law

As mentioned earlier (II.1.B), Kant characterized legality through

three abstractions referring to the addressees of the law, who
recognize one another as consociates in an abstract community
first produced by legal norms themselves.
1.
Law abstracts from the capacity of the addressees to bind
their will of their own accord through normative insights
because it assumes that free choice is a sufficient source of
law-abiding behaviour.
2.
Law abstracts from the complexities that action plans owe to
their lifeworld contexts and restricts itself to the external
relation of interactive influence that social actors, oriented
toward their own preferences, exert on one another.
3.
Law, abstracts from the kind of motivation and is satisfied
with action that outwardly conforms to rules, however such
conformity might arise, given that only matters pertaining to
external relations can be legally regulated, and ruleconformative behaviour may be enforced if necessary.
B. Because legal subjects are individuated and associated not
through personal identities and shared histories but through the
capacity to occupy the position of members of a legally
constituted community, the legal form has an atomizing effect,
which does not negate the intersubjective bases of law as such.
C. Rather than conceive of the aspects of legality as limitations on
morality (as Kant does), Habermas emphasizes the necessity of
law to offset deficits arising with the collapse of traditional ethical
life and meet the rational requirements of postconventional moral
justification.
D. One such deficit is the whirlpool of problematization created by
a principled, postconventional morality that takes a critical
approach to all quasi-natural, received action orientations backed

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by institutions and motivationally anchored through patterns of

socialization.
1.
The telos of such a morality, which views everything through
the lens of universalizability, consists in the impartial
judgment of moral conflicts, and hence facilitates a cultural
knowledge that is meant to orient ones action but does not
thereby dispose one to act rightly.
2.
Such a morality becomes effective for action only through the
internalization of moral principles in the personality system
through socialization processes that engender correlative
superego formations.
E. Law, as a system of knowledge (a text that consists of normative
propositions and interpretations) and a system of action (an
institution, or a complex of normatively regulated action) can
supplement
postconventional
morality
by
interweaving
motivations and value orientations with immediate effectiveness.
F. A morally-motivated person is subject to unprecedented (1)
cognitive, (2) motivational, and (3) organizational demands, from
which the person as legal subject is unburdened.
1.
Cognitive indeterminacy is absorbed by the facticity of the
genesis of the law: precisely defined rules and systematized
decisions relieve the individual of the burdens of forming her
own moral judgments, given that unfixed postconventional
morality, fallible communicative freedom, and complex
applications of abstract, highly generalized norms often
overtax the individuals analytical capacity.
2.
Motivational uncertainty about action guided by known
principles is absorbed by the facticity of the laws
enforcement of norm-conformative behaviour with the threat
of sanctions and its universalization of norms such that
everyone can reasonably be expected to comply with them.
3.
Accountability or the imputability of obligations, which
requires cooperation or organization, is facilitated by law,
which alone is reflexive in its own right and can define
jurisdictional powers and found organizations, i.e., produce a
system of accountabilities that refers not only to natural, legal
persons, but also to fictive, legal subjects, such as
corporations and public agencies.
G. Positive law stands in reserve as an action system able to take the
place of devalued traditional institutions to address the question

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of the moral division of labor and the (re)construction of moral

standards.
H. Law serves the new need for formally organized action systems in
a capitalist economy, such as markets, businesses, and
administrations that arise in the course of social modernization.
I. A principled morality whose effectiveness was based solely on
socialization processes and individual conscience would have
remained restricted to a narrow radius of action, were it not
internally coupled to a legal system that allowed this morality to
spread to all spheres of action, including those systemically
independent spheres of media-steered interactions that unburden
actors of all moral expectations other than that of general
obedience to the law.
III.

A Discourse-Theoretic Justification of Basic Rights: The Discourse

Principle, the Legal Form, and the Democratic Principle
A.

To introduce law as a system of rights that gives equal weight to

both the private and public autonomy of the citizen and which
citizens must mutually grant one another if they want to
legitimately regulate their life in common, Habermas took us
through the discussion of:
1.
The doctrinal history of civil law from Savigny to Kelsen;
2.
The concept of civic autonomy in discourse-theoretic terms
and the internal connection between human rights and
popular sovereignty;
3.
The complementary relation between law and morality, and
the formal characteristics that distinguish legal norms from
general norms of action
B. Law defines liberties that are granted conditionally: while it
releases the actors self-interested choice from the obligatory
contexts of a shared background, it also coordinates actions
through the imposition of external constraints on the range of
options.
C. Rights that guarantee private autonomy suspend the illocutionary
obligations of communicative freedom, which aims at
intersubjective recognition, and communicative action, which
aims at coordinated action plans on the basis of a consensus.
D. The Kantian principle of law, which holds that each person has a
right to individual liberties, subordinates law to morality, a move

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E.

F.

G.

H.

incompatible with the idea of autonomy realized in the medium of

law itself.
Only participation in the practice of politically autonomous
lawmaking makes it possible for citizens to have a correct
understanding of the legal order as created by themselves, and to
obey legal norms on the basis of insight or utility calculations.
Self-legislation, then, should not be reduced to moral selflegislation by individual persons, but should occur as a logical
genesis of rights, in which the discourse principle assumes the
shape of a principle of democracy by way of legal
institutionalization, comprising a circular process in which the
legal code or legal form and the mechanism for producing
legitimate law are co-originally constituted.
The categories of rights include: (1-3) those that generate the
legal code itself by defining the status of legal persons and
guaranteeing private autonomy, (4) those that allow legal subjects
to also become authors of their legal order, and (5) those that
enable citizens to change and expand their material legal status
so as to interpret and develop their private and civic autonomy
simultaneously:
1.
Basic rights that result from the politically autonomous
elaboration of the right to the greatest possible measure of
equal individual liberties.
2.
Basic rights that result from the politically autonomous
elaboration of the status of a member in a voluntary
association of consociates under the law.
3.
Basic rights that result from the actionability of rights and
from the politically autonomous elaboration of individual legal
protection.
4.
Basic rights to equal opportunities to participate in processes
of opinion- and will-formation in which citizens exercise their
political autonomy, and through which they generate
legitimate law.
5.
Basic rights to the provision of living conditions that are
socially, technologically, and ecologically safeguarded, insofar
as the current circumstances make this necessary if citizens
are to have equal opportunities to realize the civil rights listed
in (1) through (4).
The following clarifies the internal relations between human
rights and popular sovereignty; in summary, there is no legitimate
law without the general right to equal liberties, along with

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I.

J.
K.

L.

membership rights and guaranteed legal remedies, which must be

interpreted and given concrete shape by a political legislature in
response to changing circumstances.
1.
Since according to the discourse principle, the rights of each
must be compatible with equal rights for all, a legal code
should be set up in the form of legitimately distributed rights
that protect the private autonomy of legal subjects.
2.
Since the positivity of law, i.e. the facticity of its creation and
enforcement, are limited by historical time and social space,
the establishment of a legal code calls for rights that regulate
membership in a determinate association of citizens, such as
those belonging to a national state.
3.
The legal institutionalization of the legal code requires,
finally, guaranteed legal remedies through which any person
who feels her rights have been infringed upon can assert her
claims and expect equal treatment before the law.
4.
The idea of self-legislation must be realized in the medium of
law itself; hence, the conditions under which citizens can
judge whether the law they make is legitimate (in light of the
discourse principle) must in turn be legally guaranteed by
basic political rights to participate in processes that form the
legislators opinion and will.
To give the discourse principle legal shape as a principle of
democracy, political rightsin particular, entitlements to the
public use of communicative freedomcall for the legal
institutionalization of various forms of communication and the
implementation of democratic procedures, which result in rights
of equal participation and presuppose discursive opinion- and willformation that enable an exercise of political autonomy.
Thus popular sovereignty and human rights go hand in hand, as
are civic and private autonomy co-original.
By securing both private and public autonomy in a balanced
manner, the system of rights operationalizes the tensions between
facticity and validity: between the positivity and legitimacy of law,
between the self-interested choice of individual subjects and the
common good.
With the analysis of Kants key notions of freedom of choice,
external relation, and authorized coercion, we can see how the
individual bearer of rights and beneficiary of liberties is
simultaneously related to a public use of communicative freedom

Reynaldo 17

by taking an other-regarding attitude, or simply granting

individual liberties.
M. The emergence of legitimacy from legality appears as a paradox
only if one imagines the legal system as a circular process that
recursively feeds back into and legitimates itself; this, however, is
contradicted by evidence that democratic institutions of freedom
disintegrate without the initiatives of a population accustomed to
freedom, which means that the law must also draw on sources of
legitimation outside itself.