ABSTRACT
In earlier work1 I have proposed a distinction between strong legalism and weak legalism as a starting point for the elaboration of a theory of rational legislation. After the diagnosis of the absence of a theory of legislation, resulting from strong legalism, some alternative, weaker version of legalism was proposed. This weaker version primarily aims at taking the subject qua subject seriously, in that the subject’s freedom proposed as the principium of law. In addition to that I have proposed an interpretation of freedom that better fits with its reflexive characteristics. Freedom that is, requires freedom to be realised. Freedom, that is, cannot, and even less than any other thing, be fully represented without destroying itself. Insofar as freedom is represented, it exists as the realisation on conceptions about freedom. In proportion to this representation, freedom in the moral sense is reduced in favour of freedom in the political sense. I have further argued that the substitution of acting on conceptions about freedom for acting on conceptions of freedom seems unproblematic in the Modern philosophical project. The main argument that justifies it is of an epistemological character. In doing so, freedom in the moral sense is reduced in favour of freedom in the political sense. Consequential on this reduction, moral freedom can be outweighed without further justification. In this chapter, I will focus on the problems of legitimacy on the one hand and legitimation on the other that come with this conclusion. Strong legalism, in relying on representationalism, excels in its impossibility to provide a theory of freedom. A theory of freedom is crucial for freedom to make any moral sense at all. Instead of a theory of freedom, in which the subject qua subject occupies the places he deserves, the Modern philosophical project has supplied variants of a theory about freedom. Within a theory about freedom the subject shows up as a legal subject, that is, a subject defined through the rules that
1 See L.J. Wintgens, ‘Legisprudence as a New Theory of Legislation’, in L.J.
