154 Habermas: An intellectual biography
considered in response to the civil disobedience and criminal penal-
ties were being augmented as he wrote gave Habermas’s theoretical
considerations practical urgency.^78
“Those who still follow the ever less accountable U.S. govern-
ment – if not for military, than for political reasons – will have to
try to somehow break out of the fatal logic of the arms race,”^79 he
urged. By taking this position in-between, Habermas reenacted the
position he occupied in 1967 –9 when he sought to carve out a space
between the technocratic conservatives and their “actionist” oppo-
nents. In both episodes, Habermas positioned himself in the role of
friendly critic of the left and determined opponent of the right. As
in 1967–9, so too now he saw the potential for a dangerous dialectic
of misrecognition: The state would imagine a violent citizenry, and
the citizenry would imagine a violent state. Each would confirm the
other’s projection, he believed, and a self-fulfilling prophecy would
result.
The first dangerous scenario Habermas envisioned was that
peacefully practiced civil disobedience would degenerate into
violent resistance. The second was that the state, having already
stiffened criminal penalties for civil disobedience in the CDU-led
states, would go further, perhaps declaring a state of emergency.^80
With the stationing of the missiles nearly a foregone conclusion,
the situation could deteriorate sharply. The Rechtsstaat appeared to
Habermas to be threatened from two sides: “instrumentalism,” or
lawlessness, on the one hand, and an “authoritarian legalism,” on
the other, that “draws the line” between legality (Recht) and violence
in the wrong place.^81 Habermas assumed a place in the debate that
was again – characteristically for this ‘58er – “in between.”
The protestor must “prove scrupulously” whether the choice
of “spectacular means” is appropriate and not a expression of elite
conviction or narcissistic desire. The state, meanwhile, must recog-
nize the historical contingency of its laws. Habermas argued that
because civil disobedience moves in the “twilight of contemporary
history,” it is hard to judge it from a present-day perspective. From
this sense that historical actors are inevitably morally fallible, he(^78) Habermas, “Testfall,” 51. The CDU had recently changed the criminal law
on demonstrations.
(^79) Habermas, “Recht und Gewalt,” 100.
(^80) Habermas, “Testfall,” 51.
(^81) Habermas, “Recht und Gewalt,” 104.