(A3) The Grounding of Norms in the Pluralistic State
The grounding of norms in the liberal constitutional state is tied up with the requirement of public justification. The legitimate, ideologically neutral legislator, who is required to treat his citizens with equal concern and respect (Ronald Dworkin), has to limit himself to reason that in principle could be explained to anyone in a discourse. Thus motifs based upon particular ideas of the good – for example of a religious kind – are barred as resources for grounding legal norms, and this is also fundamentally the case even when these religious contents are translated into profane semantics. The unique non-substitutable ability of the ethically neutral, secular state to stabilise a society of free and equal citizens – separated by incompatible religious, philosophical, and moral basic values – within a common constitutional system (John Rawls) is based on this model of order, which was grounded upon the separation of legal theory from theology established at the latest in the seventeenth century.
This legal- and social-philosophical research project aims first at the theoretical sharpening of the concept of public justification and its reconstruction as a central, if tension-filled, normative component of modern western legal and political thinking, and second, at an investigation of how much the existing stock of norms of the German legal system complies with this principle. For this question of the state of the process of differentiation of law and religion in the applicable law and in legal studies, predominantly recent processes of the setting of norms will be analysed, especially in the area of bio-politics. The study will investigate the question of what religious and/or theological content still or once again lies hidden in contemporary legal discussions and to what extent it can be transferred to a secular grounding. The question of whether and to what extent a secular legal system in this sense remains motivationally dependent upon the pre-political and moral convictions found in religious communities will then be investigated with social-theoretical and legal-sociological means. Finally, questions of comparative legal sociology will be addressed by contrasting German processes of norm-setting to analogous processes in neighbouring European countries.