Abstract

This is a follow-up article of Strauss 2011. In order to transcend the shortcomings present in the dialectical legacy regarding normativity, this article further explores key elements within the dialectical tradition focused on the basic motive of nature and freedom and the effect it had on modern social contract theories which aimed at reconstructing human society from its “atoms,” the individuals . The transition to an alternative approach commences with a discussion of the distinction between conditions and what is conditioned. It concerns a correlation found within all aspects of reality, namely that between the law side or norm side on the one hand and the factual side on the other. The basic assumption of this alternative view is found in the idea of ontic normativity which is rooted in a non-reductionist ontology. Against this broader background shortcomings in Kelsen’s theory of law are briefly traced to the dialectic of the causal and non-causal , before a positive characterization of the concept of a principle is given. It turned out that it is a compound basic concept in which terms from different modal aspects of reality are encapsulated at once. The recognition of ontic normativity therefore also enables a distinct methodology, the transcendental-empirical method, which makes it possible to distinguish between the pre-positive nature of a principle, as a universal and constant starting-point for human action, and the historically varying ways in which such a principle can be made valid, ( enforced ) through a competent organ disposing over an accountable will and capable to interpret the unique historical circumstances in which the principle has to be positivized (given a positive form or shape ). The nature of modal norms is highlighted in terms of various examples, such as jural, historical, logical and aesthetic principles, with special reference to Derrida’s understanding of credit as economic trust or economic faith. In order to make this transcendental-empirical method understandable a more detailed account of the nature of modal aspects is given. The emphasis on ontic normativity also helps us to steer clear of conceptions of natural law , historicism and the shortcomings present in the idea of a social construction of the world . The guiding perspective flowing from this analysis is that modal norms can be articulated through an analysis of analogical structural moments on the law sides of the normative aspects. The last part of this article briefly introduces the distinction between modal and typical norms without entering into a discussion of the latter