But moods—and philosophies in a melancholic ‘mood’—do not justify the defeatist surrender of the radical content of democratic ideals . . . If defeatism were justified, I would have had to choose a different literary genre, for example, the diary of a Hellenistic writer who merely documents, for subsequent generations, the unfulfilled promises of his waning culture.Footnote 1
On this proudly defiant note, Jürgen Habermas prefaced his magnum opus in political and legal theory, Between Facts and Norms: Contributions to a Discourse Theory of Democracy (1992). The tone provides a useful clue for situating and contextualizing his mature political thought. Because Habermas began the work in 1985, but completed it only in 1991, the work sits astride a historical chasm—represented by the collapse of the East German state in 1989 and the reunification of the East with West Germany in 1990—making contextual interpretation of the work difficult. But keeping both eras in mind—both pre- and post-1989—makes it possible to fundamentally reinterpret the work. Conceived both before and after the German events of 1989–90, Between Facts and Norms (hereafter BFN) wears a Janus face: facing backwards, it culls the constitutional history of the Bonn Republic, in search of its lessons; facing forwards, it inaugurates a new chapter in left political theorizing after the end of the Cold War. It is both epitaph and manifesto: epitaph for the Bonn Republic—a resumé of the achievements and limits of West German constitutionalism—and manifesto for the Berlin Republic.
But the most common critiques of BFN suggest that it is an expression of a post-1989 European mood, i.e. a document of a Left which has either abandoned Marx,Footnote 2 resigned itself to liberal constitutionalism, or relinquished a utopian horizon. BFN has been said to mark a turn in Habermas's work: it signifies a final capitulation to an ascendant neoliberal capitalism,Footnote 3 substitutes ethics for politics,Footnote 4 represents the final abandonment of critical theory,Footnote 5 or implicitly endorses Western European parliamentary democracy as the unsurpassable framework of contemporary politics.Footnote 6 By contrast, I argue that the work represents an important restatement of a radical democratic project of reform to which Habermas has been committed since the 1960s. In support of this project, Habermas supplies an investigation of the lessons of German intellectual history—specifically of its legal theory and jurisprudence.
Remarkably, the inventory Habermas takes in BFN of his own evolution as a political and legal thinker since the late 1950s permits a new reading of the work as a kind of fragmented intellectual autobiography. What the autobiographical character of Habermas's mature political testament reveals is how pervasively the traditions of twentieth-century German legal theory have influenced his thought.Footnote 7 Thus where other scholars have characterized BFN as a decisive marker of a “legal turn” or “liberal turn” in his thought, I argue that there has been no such turn.Footnote 8 The thesis of a legal or liberal turn obscures a significant continuity in his thought: Habermas's political analysis, since the publication of The Structural Transformation of the Public Sphere (1962), has been framed in the language of German legal theory. This framing attests to Habermas's personal fascination with the law, as well as to a remarkably consistent commitment to the goal of a “radical reform” of German politics.Footnote 9 My reading of BFN is thus in accord with this broad feature of Habermas's own self-understanding as a radical reformer. Habermas's emplotment of German intellectual history as a series of dead ends helps him legitimate his procedural or discursive theory of politics and law as the best remaining option for a progressive left after the Cold War. Both introspective and politically strategic, Habermas's BFN constructs a usable past for his distinct political project of radical reform.
While BFN has been thoroughly appraised by scholars of constitutional law and political philosophy on both sides of the Atlantic, few critics have attempted to historicize the work.Footnote 10 Much of this scholarship takes its cue from Habermas's own suggestions that he was contributing to an Atlantic debate in political theory between liberals and communitarians or civic republicans. But this Atlantic academic conversation was a far less significant context informing the work's composition than the dynamic shifts in postwar German political culture in the 1980s and 1990s. Habermas first sketched his mature political project in a 1984 lecture on what he called the “exhaustion of utopian energies” in Western European politics. In 1989 and 1990 Habermas aligned himself with the progressive wing of the jurists in the constitutional debates of those years, a group which hoped a new constitution-giving assembly would serve to “refound” the republic. But Habermas was ambivalent about reunification and I argue that this ambivalence offers a new perspective on the tension between the liberal and republican dimensions in his thought, a tension noted, but never interpreted historically, by other commentators. For all of his celebrated bridge-building between Continental and Anglo-American social and political thought, therefore, BFN is profoundly rooted in German intellectual traditions and its tumultuous political landscape. Situating Habermas this way recasts the meaning of Habermas's career: if BFN is his summa of the problems of German history and politics, his significance as the public philosopher of the Federal Republic is dramatically underscored.
NEITHER LIBERALISM NOR REPUBLICANISM: THE PROCEDURAL THEORY OF LAW AND DEMOCRACY
The central tension in modern Western political philosophy, as Habermas staged it, was the tension between the “freedom of the ancients,” which he encapsulates with the term “popular sovereignty,” and the “freedom of the moderns,” which he denotes by the concept of human rights.Footnote 11 While Habermas uses the term “republicanism” to refer to a tradition of thought exemplified by Rousseau, and rooted in Aristotle and the traditions of Renaissance humanism, he uses modern “liberalism” to refer to a tradition whose best exemplars are Locke and Kant.Footnote 12 Elsewhere he explains that he means a “narrow” tradition tracing its roots to Locke; “‘Liberals’ such as Dworkin and Rawls cannot be confined to this tradition.”Footnote 13 What is absent from his own explicit definitions, however, is the German historical experiences congealed and concealed within his characterizations of the “liberal” and “republican” traditions. That Habermas understands his procedural theory as an alternative to “liberal” accounts also reveals his discomfort with the label, and affords us some grounds for skepticism about the thesis that BFN is the signature of a liberal turn in Habermas's thought.
Where republicans prioritize “public autonomy” or the principle of popular sovereignty, liberals fear tyrannical majorities, and use human rights to erect barriers to encroachment by the sovereign will of the people. The problem, according to Habermas, is that once “the issue is set up in this way, either idea can be upheld only at the expense of the other. The intuitively plausible co-originality of both ideas falls by the wayside.”Footnote 14 Habermas argued that his procedural or discourse theory of democracy is the ideal mediator since it “takes elements from both sides and integrates them.”Footnote 15 Understanding the goals Habermas articulated in these 1996 essays helps us grasp the import of what he considers his central thesis in the 1992 BFN, namely that the Western ideals of the rule of law and democracy are “internally connected.”Footnote 16 Democracy and rule of law are “co-original” or “equiprimordial” (gleichursprünglich), he argued; the two “mutually presuppose one another.”Footnote 17
The strength of the republican model, Habermas explained, is that it alone preserves the meaning of radical democracy, i.e. of a society that organizes itself, because it goes beyond the liberal model's definition of collective goals as the mere aggregation of private interests.Footnote 18 Its corresponding weakness, however, is that it is too dependent on virtuous citizens who are devoted to the public good.Footnote 19 Habermas claimed that his procedural model steers a middle course between what I call, following John Rawls, “thicker” and “thinner” models of democracy. The republican concept of the state as “an ethical community” was too thick, while the liberal concept of the state as “the guardian of a market society” was too thin.Footnote 20 Only theoretical reconstruction (his procedural turn), he believed, could preserve the insights of republicanism and liberalism from their too concrete embodiments.
Historical contextualization of Habermas's critiques makes it clear why in the end he may be more convincingly viewed as a kind of civic republican than as a liberal: he puts his faith in popular sovereignty, not human rights, as the ultimate ground of the legitimacy of the laws. Habermas implicitly acknowledges his partiality to republicanism when he refers to his procedural theory as a “communicative account of republicanism.”Footnote 21 According to Habermas, a “proceduralist” or “formal” turn was the sole means to salvage the content of utopia from its twentieth-century embodiments. Proceduralism was the sole antidote to the problems of excessive “concreteness” of political ideology. As political programs, state socialism, Western European social democracy, and Western European liberalism alike were “too concrete.” The problem with Marx and Engels's thought, for example, he asserted in 1992, was that
they read Rousseau and Hegel too much through the eyes of Aristotle . . . their idea of a liberated society was too concrete. They conceived socialism as a historically privileged form of concrete ethical life [Sittlichkeit] [rather than as] the set of necessary conditions for emancipated forms of life about which participants themselves would have to reach an understanding.Footnote 22
To mark the distinction between discredited past utopias and the possibility of future ones, Habermas used different words: Entwurf and Projekt.
After the collapse of state socialism and the end of the ‘global civil war’, the theoretical error of the defeated party is there for all to see: it mistook the socialist project [Projekt] for the design [Entwurf]—and violent implementation—of a concrete form of life.Footnote 23
Borrowing from contemporary German legal theorists like Ulrich Preuss, Habermas offered an alternative to the traditional socialist utopia: the image of the constitution as an ongoing and infinitely revisable learning process. “If a utopia is equivalent to the ideal projection [Entwurf] of a concrete form of life, then the constitution taken as a project [Projekt] is neither a social utopia nor a substitute for such.”Footnote 24 The German constitution was an unfinished project: it opened a discussion, rather than finishing the design of the good society once and for all.
Since the mid-1980s, Habermas has repeatedly described the arc of his intellectual development since the late 1950s as a movement away from the “holism” of “Western Marxism.”Footnote 25 In different writings composed between 1985 and 1990, Habermas developed this theme. Habermas interpreted the French Revolution as an expression of the idea that “the people” could collectively author their destiny, but asserted that this idea had since become problematic.Footnote 26 Habermas's concern was how to save the core of this idea of collective authorship under modern conditions. He wrote that he wants the left to acknowledge that societies are not higher-level “selves” that can know and steer themselves, and for the right to acknowledge the validity of the public expectation of popular sovereignty.Footnote 27 Habermas argued that societies cannot have one “steering center.”Footnote 28 Society could not be grasped as a “macrosubject,” be it that of a class (the proletariat) or a unitary conception of “the people.”Footnote 29 His solution to this quandary was that popular sovereignty should be “intersubjectively dissolved” or “proceduralized.” But what did this mean?
Proceduralized popular sovereignty, he explained, would eschew the problem of the unitary macrosubject by breaking up sovereignty into a plurality of locations. Sovereignty would therefore have to “find its placeless place in the interactions between” legally institutionalized will-formation (parliament) and culturally mobilized public spheres.Footnote 30 Habermas used words like “desubstantialized,” “disembodied,” and “fully dispersed” to characterize a popular sovereignty that has “withdrawn into democratic procedures.”Footnote 31 Habermas believed that breaking up legislative power into institutionalized and noninstitutionalized spaces—the parliament and a plurality of public spheres—was the best way to preserve the democratic ideal of popular self-determination while eschewing the holism that he believed connected Aristotle to Rousseau, Hegel and Marx. He repeatedly uses the metaphor of “withdrawal” to describe the sublimation of core liberal (human rights) and republican (popular sovereignty) ideals into discursive rules of procedure:
[proceduralism] relieves citizens of the Rousseauian expectation of virtue—the orientation to the common good only needs to be extracted in small increments insofar as practical reason withdraws from the hearts and heads of collective or individual actors into the procedures and forms of communication of political opinion and will formation.Footnote 32
Similarly, Habermas substitutes the rules of discourse for the more “concrete” or sittlich features of universal human rights: “According to [the] proceduralist view, practical reason withdraws from universal human rights or from the concrete ethical life of a specific community into the rules of discourse.”Footnote 33 Treating human rights as an example of excessive concreteness is a striking feature of BFN and of Habermas's mature political thought generally. It reflects his skepticism toward one version of human rights politics, not toward human rights per se. Treating human rights as a foundational moral a priori, beyond reflection, reifies them in a manner Habermas finds unacceptable. Popular sovereignty, not human rights, is Habermas's ultimate priority, and this choice of priorities cannot be subsumed within the critical rubric of a “liberal turn” in his thought.
RE-ENCHANTING THE RECHTSSTAAT: HABERMAS ON THE OFFENSIVE, 1984–1988
The years from 1984 to 1988 form a distinct chapter in Habermas's thought. The fact that Habermas had by 1988 completed a draft of BFN alerts us to the fact that the key contexts informing the work pre-date the revolutions of 1989.Footnote 34 Emphasizing this pre-1989 context for BFN highlights the anachronistic features of the scholarly reading of the 1992 work as an exemplary document of political resignation, a farewell to alternatives.
On the contrary, it was a sense of confidence that the West German Rechtsstaat (constitutional state) was secure and reliable that seems to have permitted Habermas to go on the intellectual “offensive.” I borrow the term from Habermas's own writings from the period because it captures the optimistic mood of his thought. His goal was to ambitiously synthesize the two elements of political theory most precious to him: the dynamic future-orientation of Western Marxist tradition and the achievements of Rechtsstaatlichkeit (the rule of law).
Though Habermas consistently publicly identified the Christian Democratic chancellor Helmut Kohl as a spokesman for a dangerous “neoconservative” social project, oddly he found him somewhat reassuring. It was not until Kohl's election that Habermas for the first time felt that what he called a “liberal political culture” in West Germany was firmly secure.Footnote 35 Despite the passionate acrimony of the historians' controversy (Historikerstreit) over the Holocaust,Footnote 36 Habermas no longer feared that the West German Rechtsstaat could deteriorate or collapse, as he had in the terrorism-troubled year of 1977. In a December 1984 lecture delivered to the newly elected Spanish Socialist parliament, for example, he surveyed the political landscape in Western Europe.Footnote 37 With the development of the welfare state (Sozialstaat) at a “dead end,” European social democracy had become conservative, Habermas argued: its vision was excessively “defensive”, it expressed a historical consciousness denuded of its “utopian dimension.” The left could only seize “the offensive” if the welfare state project were reimagined.Footnote 38 From Habermas's diagnosis of the exhaustion of utopian energies came his plan for reviving them: he sought to shift the “utopian accent” of social theory from the idea of work to the idea of communication.
It is a significant early sketch in which one can clearly see the outlines of the more extensive critique of the German welfare state he elaborates in BFN.Footnote 39 The lecture also tests a metaphor that will become one of the most important in BFN: “concreteness.” “The proceduralist legal paradigm . . . presupposes that the welfare and liberal models of law construe the realization of rights in overly concrete terms and conceal the internal relation between private and public autonomy.”Footnote 40 Intriguingly, with an implicit nod to his old teacher, Theodor Adorno, Habermas names all positions he disagreed with “too concrete.”Footnote 41 The Sozialstaat in 1984 “still draws its power” from the utopian idea of liberation from alienating work, Habermas acknowledged. But liberation had always been envisioned too “concretistically”—classical utopias had tried to “paint” a picture of what the good life would look like.Footnote 42 Habermas's goal was to preserve the spirit of the “utopia of a workers' society” (arbeitsgesellschaftliche Utopie), but to transpose its core values—freedom, equality and solidarity—into a new, less concretely pictured framework. Habermas asserted that his utopia was unprecedented in restricting “itself to the formal aspects of undistorted intersubjectivity.”Footnote 43 By his concept of the “ideal-speech situation,” Habermas did not intend to depict a “concrete form of life”: rather it created only the necessary “formal” or “procedural” framework within which the public deliberates, and collectively fills in the picture, as it were, of the good society. Through a defined procedural framework, participants themselves would decide which “concrete possibilities” of social organization they desired. Only by shifting the utopian accent from work to communication, he wrote, could a new “division of powers” between the three resources of modern societies—money, power, and solidarity—be pursued.Footnote 44 Habermas's first formulations of the proceduralist paradigm, the signature of his mature political thought, were rooted in this optimistic context of being on the political offensive.
That Habermas felt there was positive historical momentum in the mid-1980s is also evident in a 1988 essay: “Under the banner of postmodern farewells, we are now supposed to distance ourselves from that exemplary event [the French Revolution] whose effects have been felt for the last two hundred years.”Footnote 45 Habermas hoped his current theoretical enterprise would “translate the normative content” of the ideals of 1789 into new forms. Habermas attempted to reconceptualize the meaning of the democratic republic as a dynamic “project” (Projekt) rather than a static “possession”: “A republic of this sort is not a possession we simply accept as our fortunate inheritance from the past. Rather it is a project we must carry forward in the consciousness of a revolution both permanent and quotidian.”Footnote 46 Habermas was dissatisfied with the West German citizenry's relationship with its constitution, seeing in it a kind of passivity or, to recall Kant's phrase, a self-incurred immaturity. By contrasting two views of the constitution—as “possession” or “project”—Habermas hoped to re-enchant the Rechtsstaat with a utopian, revolutionary aura. By treating the constitution as something static—the “fortunate inheritance” from 1949—the public forfeited what Habermas valued—an understanding of the constitution as a dynamic, unfinished project:
In view of the double anniversaries of 1789 and 1949 . . . a leftist in the Federal Republic must consider this undertaking an imperative: the principles of the constitution will not take root in our souls until reason has assured itself of those principles' orienting, future-directed contents.Footnote 47
The statement that the constitution will not be “rooted in our souls” until “reason” has been reassured that the content of the constitutional principles is “future-oriented” appears at first to signify an uncharacteristically romantic lapse by the typically austere Vernunftrepublikaner (“republican of reason”). But the ambiguous subjects—“our souls,” “reason”—not only were aimed at West Germans generally, but refer to the West German left, whom he had urged since the late 1960s to identify more with the constitution. With his idea of the democratic constitutional state as “unfinished project,” Habermas tried to reorient the goals of the German left.
His key maneuver was to break down the antinomy of “constitution” and “revolution” by arguing that constitutions are “self-revolutionizing” entities. For Habermas, being a “leftist loyal to the West German constitution”Footnote 48 meant rejecting the claim that the “orienting power” of the French Revolution was exhausted. The single most important legacy of the French Revolution for Habermas was the constitutional state, because in it the utopian core of “revolution”—the universally valid ideas of democracy and human rights—was preserved.Footnote 49 In contrast to nearly all of his critics, Habermas saw (and still sees) himself as part of a Marxian tradition of social theory, which seeks to preserve, by reconstructing, key Marxist-humanist ideals such as solidarity and liberation from coercion.Footnote 50 Whether or not Habermas can be categorized as a Marxist, if an extremely unorthodox one, need not detain us here. The point is that Habermas's mature work can hardly be characterized as a document of political resignation. In BFN constitutionalism is imagined as capacious enough to absorb the full force and breadth of “the revolutionary project” of the French Revolution.Footnote 51
What is significant about these formulations is that Habermas was arguing that that no Verfassungspatriotismus (patriotism centered on the constitution) could be justified without a complementary notion of the constitution as an instrument for realizing a more democratic society. By sublimating the spirit of revolution, as it were, into the concept of constitutionalism as a self-revolutionizing or “fallible learning process,” society could, Habermas offered, become more free, equal and solidaristically connected.Footnote 52 Habermas elaborates on what he means by the claim that the constitution should be understood “dynamically” as an “unfinished project”:
the constitutional state does not represent a finished structure but a delicate and sensitive—above all fallible and revisable—enterprise, whose purpose is to realize the system of rights anew in changing circumstances, that is, to interpret the system of rights better, to institutionalize it more appropriately, and to draw out its contents more radically.Footnote 53
By contrasting static and dynamic concepts of the constitution, Habermas outlined the minimum conditions, as it were, “for the constitution's principles to take root in our souls.” On the eve of the revolution of 1989, Habermas was crafting a compelling reinterpretation of the classic Marxist notions of utopia and revolution. The dynamic unleashed by the revolution of 1989 changed everything, however. Soon, Habermas was on the defensive again, anxious about the illiberalism of the citizens of the new German Länder.
A “MISSED OPPORTUNITY” FOR A REPUBLICAN REFOUNDING: HABERMAS ON THE DEFENSIVE
The revolution of 1989 reopened the question of the status of the German constitution, or Basic Law, which had never been intended as more than a provisional document. Habermas and other progressives began to contemplate convoking a constitutional assembly, an undertaking that would have the power to symbolically refound the republic. But by the beginning of 1990, Habermas was worried that the quick absorption of the old GDR posed a dire threat to the progress achieved in liberalizing West German political culture—an achievement with which Habermas was by now deeply identified. Democracy was an undisputed good for Habermas, but he wondered, could democracy function without a liberal political culture that could “meet it halfway”?Footnote 54 During this period, Habermas's republican commitment to a robust form of popular sovereignty vied for primacy with his liberal anxieties that citizens of the former GDR might not be equipped for the challenge of self-government. The difficulties Habermas had in negotiating his response to the East German revolution of 1989 are visible in BFN: they are reflected in the tension between its civic republican and liberal impulses, which commentators have only considered from the perspective of the Atlantic academic discussion in political theory. But that theoretical tension is better understood as an expression of the volatility of Habermas's contradictory reactions to the changing landscape of German politics in the years 1989 and 1990.
In interviews and essays both published and privately circulated, Habermas complained that reunification was an “annexation” of the East by the West. A historic opportunity had been missed for the two states to choose a common future together, he argued. The frantic pace and authoritarian mode of reunification would only reinforce the cultural and economic asymmetry between the two states, and posed dangers to both. Perhaps most disturbing to Habermas was the way the revolution appeared to undermine a West German progressive electoral majority that seemed for the first time within grasp: “The old Federal Republic was well on the way towards a modern democratic society with strengthened political participation and towards a protest culture,”Footnote 55 said Habermas of his feelings in 1989. Habermas interpreted the results of the elections of March 1990 as a critical reversal of this positive trend: “There is a mentality predominating in the new states that we recognize from the Adenauer period. The GDR has not yet caught up with the dramatic transformations of value-orientations that has occurred in the Federal Republic since the '60s.”Footnote 56 Habermas was thus engaged in a tricky balancing act: he could neither ignore the threat he saw in intellectual contamination by the GDR—he spoke of the potential ruin to West Germany's “spiritual hygiene”—nor did he consider it acceptable to assume the paternalistic “role of judge in this waste-disposal project.”Footnote 57 To the question was bleibt?—what remains worth preserving in the history of the GDR?—Habermas argued that there was no positive legacy at the level of institutional design.Footnote 58 He oscillated between affirming the legitimacy of GDR citizens' experiences and culture, and fearing that absorption of the GDR risked weakening the relatively liberal political culture attained in the Bonn Republic. But the same elements of GDR political culture could also not be neglected without risk:
Self-understanding, the political self-consciousness of a nation of citizens, forms itself only in the medium of public communication. And this communication depends on a cultural infrastructure which is at this moment being allowed to fall into ruins in the new states.Footnote 59
Habermas was concerned that if the GDR's cultural infrastructure—universities, museums, theater, film, and literature—were handled roughly and recklessly, there was a politically worrisome possibility that East Germans could be humiliated. Treating all of GDR culture cavalierly as “waste” to be disposed of risked weakening the ground into which the institutions of the Rechtsstaat were to be transplanted: “Political culture is made up of a delicate fabric of mentalities and convictions that can neither be invented nor manipulated through administrative measures.”Footnote 60 Habermas seemed split between his respectful concern for GDR culture and anxiety about its fundamental illiberalism: “The institutions of the Basic Law can only function as well as they are allowed by the civil consciousness of a population accustomed to institutions of freedom.”Footnote 61 When Habermas lent his support to the project of a new constitution-giving assembly, therefore, he expressed his republican convictions that political community should be formed through public communication, but this plan did not resolve his liberal anxieties that a democracy could not be built without democrats.
Habermas initially sided with the group of professional jurists who advocated a new constitution-giving assembly. He especially admired the efforts of the “Round Table” advised by Ulrich Preuss, a Berlin-based political scientist with expertise in constitutional design, and a personal friend since the 1960s. But their work was outpaced by the effectiveness of the Christian Democratic Union (CDU) in winning over East Germany to its plan for quick reunification. By the end of September 1989 Chancellor Helmut Kohl had seized the initiative with his Ten Point Program for reunification. New elections to the East German parliament (Volkskammer) were set for 18 March 1990. The parties of the West moved into the East and mobilized voters. The CDU-allied party Alliance for Germany, with Lothar de Mazière at the head, won the elections with forty-eight percent of the popular vote. In April de Mazière announced that the East would seek to join the Federal Republic under Article 23—the option for “accession”—a decision which represented a rejection of the other constitutional option for German reunification, Article 146, which would have mandated a new constitution-giving assembly.Footnote 62
Before 1989, constitutional lawyers and politicians were nearly unanimous that reunification would be achieved by means of Article 146, and that a new constitution would be required. Article 146 stated that upon unification, the Basic Law would cease to exist, and a new constitution would be adopted “by the free decision of the German people.” But once reunification became a real possibility, many German lawyers argued that Article 23—an article originally designed for accession of areas still under Allied occupation in 1949 like the Saar area—was the more efficient vehicle: under Article 23, a new region would simply come under the jurisdiction of the Basic Law, thus obviating the need to convene a new constitution-giving assembly.
Habermas sided with the jurists headed by Helmut Simon who advocated applying the route outlined in Article 146. Josef Isensee was the leader of a group of a hundred constitutional-law professors who defended reunification through Article 23. The main arguments of the conservatives were twofold: first, that one should not tamper with successful institutions like the Basic Law since it deserved the lion's share of credit for the stability of West German democracy; second, the GDR constitutions of 1969 and 1974 hardly deserved emulation since the guarantees of civil and political rights in those constitutions were contradicted by the state's totalitarian practices.Footnote 63
The left argued, by contrast, that that the GDR's constitutional history was “not a blank page,” and that the Basic Law was antiquated and in need of updating. New explicit state goals such as ecological security could be added. A metaphor was commonly employed to underscore their point: that of building a common house. “When a couple is in love,” wrote one GDR activist, “they should build a new house together. One partner should not move into the other's house.”Footnote 64 Habermas used the metaphor too: “Unification hasn't [yet] been understood as a normatively willed act of the citizens of both states, who . . . decided upon a common civil union.”Footnote 65 Ultimately, when the Round Table advanced its draft constitution in April 1990—with a preamble penned by the novelist Christa Wolf—it won only a minority of the East German Volkskammer (people's chamber) vote. But the issue had already been mooted by the victory of the CDU in March.
Habermas viewed these developments bitterly: he used the word “annexation” (Anschluss) instead of “accession” (Beitritt) to invoke the Nazi takeover of Austria in 1938. Kohl's determination to be “lord” of the process, wrote Habermas, meant that there had been no time for the East's own public sphere to develop. Habermas viewed the March elections as nothing more than a struggle of the parties of the West for control of the East.Footnote 66
What galled Habermas most about those who advocated swift accession was their hypocrisy: “It is curious that those who now support accession through Article 23 for decades were against the reunification clauses in the preamble of the Basic Law.”Footnote 67 Habermas was pointing to a revanchism implicit in the case for Article 23. “When will the day foreseen by Article 146 come, if not now? Are we still waiting for the East Prussians and Schleswig?”Footnote 68 Only those with revanchist hopes for German territory surrendered in 1945 could support Article 23, he reasoned; if 146 were used, it would preclude any future claims that the German Volk were still dispersed and incomplete.Footnote 69
Habermas believed that East Germany should have a founding constitutional moment to compensate for West Germany's lack of one.Footnote 70 Legal experts he admired like Ulrich Preuss and Dieter Grimm forcefully advocated convening a popular assembly. “I do not undervalue the weight of reasons for conserving our constitution,” but practical considerations for “stability” cannot substitute for normative considerations.Footnote 71 He thought that a founding moment would help to constitute a future collective memory for all Germans. A founding act—of “conscious will and decision”—would form a historical event around which future generations' republican self-understanding could crystallize.Footnote 72 Habermas appears to have been more concerned that future generations have a coherent memory of a founding moment, than that the current generation experience a significant act of political self-determination.
Unification did not completely close the question of a new constitution. The reunification treaty merely postponed debate on Article 146. A Joint Constitutional Commission was established to discuss the reforms reunification might require. The lawyers who remained opposed to a new constitution developed three new arguments why the Basic Law would remain legitimate in reunified Germany. First, the Basic Law already had popular endorsement, since every national election since 1949 could be considered a ratification of the constitution and its legitimacy. Second, the March 1990 elections were evidence that the majority of East Germans had supported it. Third, it was an excellent constitution by any conceivable standard. One scholar has described this third position as an appeal to “hypothetical popular sovereignty”,Footnote 73 i.e. the Basic Law contained those principles that free and rational individuals would choose had they had the opportunity. The opposing side, including Habermas, argued that neither the March 1990 elections in the East, nor the four decades of federal elections in the West, had addressed constitutional issues explicitly. Without a founding moment, a constitutional tradition could not take root. In the end, the reformers lost. Instead of a broad constitutional convention, the commission, comprising thirty-two members of parliament, divided along party lines, was established to engage public proposals, but this did not lead to any major public forum.Footnote 74
Habermas's disappointment with the outcome of the Round Table's quest was clearly an important factor shaping the argument of BFN, though Habermas does not acknowledge this.Footnote 75 The imprint of history upon Habermas's theory could not be much clearer than in the following example. Dispute over the shape of the constitution in a democracy concerns
all participants, and it must be conducted not only as an esoteric discourse among experts apart from the political arena . . . Legal experts participate in this contest of interpretations in a privileged way, but they cannot use their professional authority to impose one view of the constitution on the rest of us. The public must itself find such a view convincing.Footnote 76
In a concurrent interview from late 1990, he spoke angrily of the “near hysterical fear of a forum on the constitution itself” and defended the idea of a republican refounding against its detractors. A clear picture emerges of a Habermas who is frustrated and on the defensive: “Those who demanded it [a new constitutional assembly] were laughed at as utopians, or were saddled, as usual, with the reputation of a lack of loyalty to the constitution.” This is a familiar theme in Habermas's writing, and refers to his experience of being challenged in the late 1970s by conservatives who sought to link the Frankfurt school to domestic West German terrorism. Habermas disputes the characterization of his project as utopian: “Was it so utopian to expect that the federal government, or at least the SPD [Social Democratic Party], would take up the impulses set in motion by the Round Table . . .? . . . Is it too much to demand that an effort be made [to discuss these issues publicly] . . .?”Footnote 77
By May 1993, Habermas's outrage had yielded to resignation: it was certain that a republican refounding would not take place. “Today we're busy with other problems,” Habermas lamented:
These days . . . small stories buried in the back pages of the newspapers report of what has come of the transfer of moral waste products into West German management; of the politically crippled discussions over a new constitution; of the vague appeals to dull national feeling that go straight past the republican consciousness of a nation of citizens . . .Footnote 78
The West German milieu of 1984–8 which had enabled Habermas to challenge the exhaustion of utopian energies and to formulate the ideal of a revolutionary constitutionalism had—ironically—vanished with the revolution of 1989. But the double loss—first the evaporation of the longed-for progressive majority in the West, and second the abortive failure to refound the republic—added another set of motivations, and a new horizon of significance, to Habermas's stocktaking of the Bonn Republic's history, an inventory he had begun before 1989.
STATISM AND ITS CRITICS: THE WEST GERMAN EXPERIMENT WITH LAW AND DEMOCRACY
While the ostensible objective of BFN was to dissolve tenacious antinomies in Western political thought—the rule of law and democracy, human rights and popular sovereignty, public and private autonomy—it also distilled lessons Habermas drew from German and West German historical experiences with statism. Because he does not explicitly foreground it in the architecture of the work, Habermas's reading of recent German intellectual history requires careful reconstruction before its status as background knowledge for his theory can emerge. My reconstruction makes explicit what remains in the text implicit and overshadowed by his theoretical argument. Habermas's reading of German history strongly conditions his political theory: according to him, for two centuries, Germany's legal intellectuals repeatedly failed to address, and thus exacerbated, the chronic problems of a German statism unbound by democracy. Weber's formalism and Smend's moral apriorism were the two theoretical positions which most exacerbated the legacies of German statism in West Germany.
The conceptual hinge on which the most successful recent accounts of the transformation of political culture and argument in West Germany have turned is the notion of German “statism” and its decline. By the statist tradition I refer to a view of governance rooted in the late eighteenth- and nineteenth-century history of Prussia and the German Empire. Its key features included a metaphysical view of the state as a source of social integration and ethical guidance; a view of the state that centered on the executive branch and that treated the executive and the civil service, or administration, as a politically neutral mediator entirely above the fray of competing interests in civil society; and a tendency to dissociate democracy and the rule of law, or liberal constitutionalism.Footnote 79 While residual elements of German statism persisted after the creation of the West German republic in 1949, the long-term trend was towards an erosion of this view of the state, and the maturation of a countervailing civil society. Habermas's critical stocktaking of the intellectual history of German legal theory focuses on two figures whose thought seemed to him most symptomatic of the problem of German statism: Max Weber (1864–1920), the sociologist, and Rudolf Smend (1882–1975), the Weimar jurist whose writings were a dominant influence on 1950s West German jurisprudence. The theory articulated in BFN is the precipitate that remained, as it were, after Habermas pressed German intellectual traditions through his proceduralist filter.Footnote 80
Many of Habermas's most challenging abstractions conceal hidden historical referents; once decoded as references to German historical experience, the most cryptic become revelatory. The following statement, for example—“The law receives its full normative sense neither through its legal form per se, nor through an a priori moral content, but through a procedure of lawmaking that begets legitimacy”Footnote 81—implicitly alludes to two of the most significant theoretical positions in twentieth-century German political or legal thought. By the “formalist error,” Habermas designated the family resemblances he finds in the thought of Max Weber, Carl Schmitt, Franz Neumann, and the Schmittian school—despite the fundamental differences, such as that of the political orientations of Neumann and Schmitt, for example. By the “moralistic error” Habermas designated Rudolf Smend's positions. Read in the light of these reflections on German legal traditions, Habermas's procedural turn appears to have emerged from a passionate effort to eschew what he considered the worst dead ends and wrong turns in German intellectual history. German liberalism erred in two ways, according to Habermas: either it was too formalistic or “thin,” and thus denuded of democratic content, or too moralistic, or “thick,” and thereby insulated from democratic discussion.
The root deficiencies of the German liberal tradition lay in the intellectual history of nineteenth-century German constitutionalism, Habermas argued. His republican inclinations to value popular sovereignty over human rights stem from his deep investment in the historical diagnosis of the weaknesses of nineteenth-century German liberalism. Following the eminent legal scholars Ernst Wolfgang Böckenförde and Ingeborg Maus, Habermas asserted that the connection between individual liberty and state power in the nineteenth-century Rechtsstaat tradition was “too direct.”Footnote 82 Habermas traced a tradition from the early nineteenth century (Savigny, Puchta, and Windschied), through the late nineteenth century (Ihering and Kelsen), to the 1950s in West Germany (Ordo-liberalism),Footnote 83 whose defining characteristic was that liberties were conceived as grants of the state. But, for Habermas, rights attained in this manner were deeply insufficient: law which treats rights as “possessions” granted by the state, rather than as something that emerges from citizens' recognition of each other as equals under the law, is the signature of the German statist approach to law.Footnote 84
The weakness of German public, or constitutional, law stemmed from the hegemonic influence of its private or civil law, Habermas argued. The doctrinal history of private-law jurisprudence from Savigny to Kelsen, “has been decisive for the understanding of law [in Germany] in general,” i.e. it illustrates the persistent fallacies of German statism.Footnote 85 Habermas highlighted a major problem with the tradition of German “liberalism” as embodied in the tradition of private, or civil, law. It “got started with the idea of morally laden individual rights which claim . . . a higher legitimacy than . . . the political process of legislation.”Footnote 86 Even the Ordo-liberalism of Adenauer and Ludwig Erhard, of which Habermas had been critical in the 1950s, seemed an expression of these same distortions: it “only rehabilitated [an] individualistically truncated understanding of rights.”Footnote 87
German liberalism also erred by its excessive formalism. At the feet of one of the most important German liberals, Max Weber, Habermas placed a substantial burden: the German legal profession's unproductive and undemocratic obsession with legal “deformalization.”Footnote 88 The formal equality of subjects under law was compromised, Weber had noted in Economy and Society, by statutes that treated different social classes differently.Footnote 89 Weber's legacy, Habermas asserted, was a strict legal formalism which caused its adherents to discern in the policies of every German welfare state since the 1880s a crisis which threatened the legitimacy of law. “With his distinction between ‘formal’ and ‘material,’ Weber shaped the relevant discussion up to the present day—and in my opinion steered it in the wrong direction,” Habermas wrote in a 1986 sketch of his emerging legal theory.Footnote 90 “German jurisprudence perceived this longstanding process (of the social transformation of law) which dissolved the classical unity and systematic organization of the only legal order that appeared rational, as a ‘crisis of law.’”Footnote 91 The formalist error consisted in an overly literal interpretation of the concept of law's “generality,” to which Habermas admitted he had also succumbed. “At least in Germany,” Habermas wrote, a narrow interpretation of the meaning of the generality of statute prevailed, according to which a law owed “its legitimacy not to the democratic procedure [behind its genesis] but to its grammatical form.”Footnote 92 Habermas renarrated his past error as a “semanticist abstraction” for which Weber and the tradition of German liberalism were ultimately responsible. To understand why Habermas was so passionate about such a seemingly obscure point—how Weber's dichotomy between legal “form” and legal “material,” had produced a crisis for German law—one needs to consider the broader context to which Weber's “formalist error” referred.
A fierce debate throughout the 1950s over the constitutional legitimacy of the West German social welfare state pitted Social Democrats against students of Carl Schmitt like Ernst Forsthoff (1902–74). Habermas was drawn into the debate, adopting Forsthoff's critique of legal deformalization as an integral part of his critique of liberal democracy in his Students and Politics (1961) and The Structural Transformation of the Public Sphere (1962). Buried in a footnote is Habermas's acknowledgment that, by doing so, he had failed to “escape” the influence of this tradition:
In Germany the discussion over the generality of legal statutes is still colored by the extreme views found in Carl Schmitt's 1928 Verfassungslehre [Constitutional Theory]. This view became influential in the Federal Republic through the direct efforts of Forsthoff and indirectly through Franz Neumann. I did not escape this influence myself at the end of the 1950s.Footnote 93
BFN thus records a very personal process of intellectual stocktaking, in which Habermas attempts to come to terms with his own past errors, and derive conclusions of general theoretical significance from that process.
Recall Habermas's key statement that law's legitimacy depends neither on its grammatical form nor on an a priori moral content. That enables us to turn from Habermas's diagnosis of the formalist error in German legal thought to the error of moral apriorism. Proceduralism was Habermas's effort to eschew the two primary defects of twentieth-century German legal thought. In contextual terms, Habermas's procedural turn “against concreteness” was a defensive maneuver to protect his radical reform agenda from threats on multiple fronts in German politics between the mid-1980s and the mid-1990s. But his procedural turn also depends to a significant extent on his acquisition of terms of art internal to his system, which he introduced for the first time in his writings on discourse ethics in the early 1980s.Footnote 94
The key conceptual distinction in this regard is between “moral” and “ethical” discourses. Moral discourses differ from ethical discourses in that the former are universal in scope whereas the latter are particular. As Richard Bernstein explains the distinction,
Ethical discourses are concerned with the life-history of an individual or a group. They seek to answer the question, “What is good for me?” . . .
[Moral discourses by contrast] are concerned with questions of justice and right, not with good and value . . . [They] are not particularistic—limited to a particular historical group. They are genuinely universal and concern the equal respect and rights of all human beings.Footnote 95
While Bernstein finds unconvincing Habermas's claim that his procedural model of democracy does not presuppose any “substantial–ethical” commitment, he correctly grasps the reasons for Habermas's insistence on it: “For if discourse theory were dependent on a substantive ethos, then this would mean it could never achieve the type of universality required to justify a universal point of view.”Footnote 96 Bernstein is right about the factors that make Habermas nervous about the “thickness” of ethical life. But Habermas's anxieties also have a more proximate historical explanation.
Habermas's insistence on a strict distinction between norms and values responds to the hegemonic discourse of common “values” introduced by the post-World War II Federal Constitutional Court as a means of integrating West German society. Its so-called “value-jurisprudence” was dominant at the highest German court from the early 1950s through the early 1970s. It was decisively shaped by the Weimar-era writings of the jurist Rudolf Smend.Footnote 97 In a neglected section of BFN entitled “Norms vs. Values: Methodological Errors in the Self-Understanding of the Constitutional Court,” Habermas put forth a strongly worded critique of value-jurisprudence. Smend's strand of legal theory, and the practices of the postwar Constitutional Court it inspired, seems to be the concealed historical referent which animates Habermas's rigid insistence on a strict binary distinction between the moral and the ethical, the right and the good, and norms and values.
By conceiving of fundamental rights as “basic values” which expressed a social consensus on the good, or a plurality of goods, Smend's value-jurisprudence elevated the highest West German court to a position of political power that was, in Habermas's view, beyond the reach of any democratically legitimated legislator. Habermas's efforts to theorize human rights and popular sovereignty as co-original is thus at the same time a critique of the West German practice of value-jurisprudence, a practice which appeared to him to enshrine human rights at the expense of the democratic sovereign.
The leading German scholars disagree as to whether value-jurisprudence has had any impact in Germany since the early 1970s. Ingeborg Maus claimed in 1992 to find in both the Federal Republic, and advanced democracies generally, “an overwhelming consensus that today's societies should not so much be integrated through the law but by means of higher order ‘material’ values.”Footnote 98 Maus, a political scientist at the University of Frankfurt am Main, was an integral member of the legal theory group which Habermas organized to meet regularly from 1985 to 1990. In his review of BFN, Schlink wrote, “Since the Federal Constitutional Court's value-orientation is a fiction, Habermas's confrontation of principles as norms and principles as values must also miss the reality of constitutional adjudication.”Footnote 99 Whether or not Habermas is right about the intellectual filiations of the German Constitutional Court is immaterial; what is important here is what Habermas believed.Footnote 100
In “the wording and tenor” of some important opinions of the Federal Constitutional Court, Habermas detected a tendency to treat the Basic Law “not so much as a system of rules structured by principles, but as a ‘concrete order of values’.”Footnote 101 Habermas's primary concern was that by treating constitutional principles as “values” rather than as “norms,” value-jurisprudence opened a door to “the talk of balancing interests or weighing values [Güterabwägung] which is common among lawyers.”Footnote 102 From here, Habermas believed, a critical line was crossed: “Anyone wanting to equate the constitution with a concrete order of values mistakes its specific legal character; as legal norms, basic rights are, like moral rules, modeled after obligatory norms of action, and not after attractive goods.”Footnote 103 Habermas worried that if rights were conceived as valuable goods, they could be weighed, balanced, and possibly rejected. This kind of “relativization” of the status of basic rights could lead the constitutional state to deteriorate into rule by the administration and judiciary, a concern of Habermas's since his first work in political theory in the late 1950s. The reflections of Ingeborg Maus echo and amplify Habermas's concern that government will “instrumentalize” basic rights for its own objectives and prize efficiency over legitimacy. In today's constitutional adjudication,
we find the prevalence of a “basic rights policy” based on a logic that suggests action by the state is legitimate if it is efficient in enforcing rights instead of being based on a democratic consensus. This version of rights taking on a life of their own is a typical feature of the paternalistic social welfare state that is immunized against a democratic constitutional process . . . and ordains rights from above by an expertocracy.Footnote 104
Maus's critique of rule by experts, be they welfare state administrators or judges, furnishes the context we need to understand Habermas's otherwise astonishing claim that, “However well grounded human rights are, they may not be paternalistically foisted, as it were, on a sovereign.”Footnote 105 It may seem counterintuitive that Habermas criticizes and fears the “isolation” of individual rights from democratic majorities, which for many US theorists is central to the practice of American liberal democracy. Moreover, the prominence of the basic rights catalogue in the constitutions of both the Bonn and Berlin Republics, and their unalterability (the so-called “eternity clause”), reflect the postwar consensus of German political and legal elites that rights were inviolable, sacred, and central to the meaning of a secure liberal constitutional order. This position has been dubbed “rights foundationalism.”Footnote 106
But the lesson Habermas drew from German history about the relationship between rights and democracy is a very different one: the fundamental idea of democracy is autonomy, Habermas argued. Against rights foundationalism, Habermas takes the position that the addressees of law must, at the same time, be its authors: “It would contradict [the idea of autonomy] if the democratic legislator were to discover human rights as though they were (preexisting) moral facts that one merely needs to enact as positive law.”Footnote 107 Habermas was critical of value-jurisprudence specifically, and rights foundationalism more broadly, because they seemed to arm judges—however enlightened or well intentioned—with a dangerous form of morality: an apriorism which insulates rights from the reach of the democratic sovereign. These remarkable reservations about the status of rights in German political culture stem from his passionate convictions, expressed across decades of writing, about the illiberalism of the tradition of the German Rechtsstaat—of the conservatism historically lurking within it. Liberal constitutionalism is not yet democratic constitutionalism.
Habermas's contemporary critique of the paternalism of judges is remarkably reminiscent of his critique of the “morally laden individual rights” that he identified as a weakness of German liberal legal theory in the nineteenth century.Footnote 108 As Habermas put it in his critique of contemporary US legal scholar Michael Perry, overreliance on the notion of “substantive values pregiven in constitutional law” can produce a politics that is too thick, or too communitarian:
Perry conceives of the text of the constitution as a founding charter [of] the ethical self-understanding of a historical community . . .
[He] sees the constitutional judge in the role of a prophetic teacher, whose interpretation of the divine word of the Founding Fathers secures the continuity of a tradition that is constitutive of the community's life . . . By assuming it should strive to realize substantive values pregiven in constitutional law, the constitutional court is transformed into an authoritarian agency.Footnote 109
In his discussion of the “methodological self-understanding” of the Supreme Court in the US and Germany, therefore, Habermas critiqued the notion that judges should be viewed as an elite caste of interpreters. For example, he also argued against Ronald Dworkin, a leading liberal theorist in the United States, that Dworkin's “ideal judge” is a less reliable bulwark of democracy than an “open society of interpreters of the constitution.”Footnote 110 Habermas's firm objection to the notion that judges and professional jurists should monopolize the interpretation of the constitution was a view augmented by his experience with and reflections on the constitutional debates of 1989 to 1991. But it also reflected his deep reservations about the democratic deficit in the application of the philosophy of rights foundationalism, reservations so deep that they eclipse recognition of the contributions made by that jurisprudence to the liberalization of political culture in West Germany's forty-year history.
CONCLUSION
Habermas's procedural theory of law and democracy took shape in two distinct political contexts, and bears the traces of each. Sedimented within the theory is a mood and a tempo: a Habermas who was on the offensive, as it were, in the pre-Wende period, from 1984 until the fall of the Berlin Wall in November 1989. In that period, he proposed the notion of a self-revolutionizing Rechtsstaat, a notion which reconstructed Western Marxist concepts of utopia and revolution. Viewing the constitution as an unfinished—and infinitely revisable—project, rather than a fixed inheritance, was Habermas's answer to a question with a long pedigree in German history: how to turn the Rechtsstaat from an object only a republican out of reason (Vernunftrepublikaner) could love, into an anchor of national identity. Only then could a leftist in the Federal Republic finally embrace the constitutional state as the ne plus ultra of German politics, Habermas concluded.
Habermas's mature political theory is also imprinted with a second set of historical experiences: the revolution of 1989–90 and the process of German reunification completed in 1991. While he initially saw the revolution of 1989 as a threat to the emerging progressive majority he hoped would furnish the constituency for his vision of radical reform, the illiberalism of the East German citizenry threatened to undermine the “mature” liberal political culture Habermas believed he had seen consolidating for the first time in West Germany.Footnote 111 A tension surfaced between Habermas's republican convictions and his liberal anxieties, which he tried to resolve by embracing the progressive jurists' agenda of a new constitutional assembly for the Berlin Republic. His reactions to the German reunification process betrayed his ultimate conviction that republican institutions could only survive if they were complemented by a liberal political culture, a set of attitudes and dispositions that could meet institutions “halfway.”Footnote 112
Conversely, his critical stocktaking of the intellectual history of German legal theory in BFN revealed a Habermas who seemed to ultimately privilege popular sovereignty over human rights, and thus implicitly a republican over a liberal model of political community. Habermas's reading of the history of judicial activism and a paternalistic welfare state in the Bonn Republic convinced him that the legitimacy of the laws in the end rested on the democratic conditions of their genesis, rather than on their legal form or moral content. The procedural vision Habermas worked out between 1984 and 1992—and to which he has remained committed since—is the mature statement of his political theory. It is hard to imagine him revising it in its fundamentals. BFN was consistent with Habermas's lifelong commitment to a radical reform of liberal constitutionalism; in this work, he adapted this project to the new circumstances of the 1980s and 1990s, rather than abdicating something essential in Habermasian critical theory. By decribing itself as the antithesis of diverse incarnations of “concreteness,” Habermas's procedural theory of law and democracy offered a powerful rhetorical reformulation of the utopian longings of the German left. Far from a document of political resignation, BFN is better characterized as a net cast across the widening historical chasm that separates the Bonn and Berlin Republics, linking the two in a heroic effort of remembrance and synthesis.
