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Kristine Marie T. ReynaldoProf. Zosimo LeePhilo 28024 February 2015

CHAPTER 3A RECONSTRUCTIVE APPROACH TO LAW I: THE SYSTEM OF RIGHTS

I. Private and Public Autonomy, Human Rights, and Popular Sovereignty

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 19th

century as positivist thinkers challenged the Kantian assumption that the legal subject’s private autonomy was founded on the person’s 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.

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2. Ihering’s 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.

3. Kelsen adds to Windscheid’s 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 self-produced 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.

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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 “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 self-legislation by way of a Kantian reading of HobbesA. 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 self-legislation.

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

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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 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.

F. 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 actors—a failure Kant reacts to.

G. 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.

H. 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.

I. 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 lawA. Human rights and popular sovereignty have determined the

normative self-understanding of constitutional democracies up to

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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 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.

C. 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).

D. 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 identity-construction 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 one’s 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.

E. 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,

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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.

F. 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 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 self-legislation) 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 one’s 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

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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 self-determination.

I.4.On the tension or unacknowledged competition between human rights and popular sovereigntyA. Human rights and the principle of popular sovereignty still

constitute the sole ideas that can justify modern law because they are affiliated with the dimensions of self-realization and self-determination 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 collectivity’s 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,

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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.

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 Kant’s 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 legislator’s 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 moralityA. 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 addressees2. The external relations of one person to another3. The coercive power that one is entitled to exercise with

respect to another in the case of infringementC. 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

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level, and is thus not only a symbolic system but an action system as well.

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

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reference to the totality of social or subcultural groups directly involved, resulting in compromises that are acceptable to all parties, even on the basis of different reasons.

H. 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.

I. 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.

J. 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.

K. 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.

L. 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.

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1. The democratic principle must specify rights suitable for the constitution of a legal community and provide the medium for this community’s self-organization.

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. On the formal characteristics of the medium of law

A. 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 rule-conformative 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

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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 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 one’s 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 individual’s analytical capacity.

2. Motivational uncertainty about action guided by known principles is absorbed by the facticity of the law’s 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

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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 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 actor’s 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.

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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 incompatible with the idea of autonomy realized in the medium of law itself.

E. 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.

F. Self-legislation, then, should not be reduced to moral self-legislation 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.

G. 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.

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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).

H. 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 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 legislator’s opinion and will.

I. To give the discourse principle legal shape as a principle of democracy, political rights—in particular, entitlements to the public use of communicative freedom—call 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 will-formation that enable an exercise of political autonomy.

J. Thus popular sovereignty and human rights go hand in hand, as are civic and private autonomy co-original.

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K. 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.

L. With the analysis of Kant’s 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—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.