Civil Disobedience and Modernity, 1978–1987 155
urged “restraint on both sides.”^82 But the greater weight of his cri-
tique was aimed at the right. Habermas ascribed an “intimidating
definitional power” to the dominant tradition in German jurispru-
dence, which he termed the “authoritarian-legalistic.” The defin-
ing characteristic of, and chief problem with, this “... German line
of... constitutional state-thinking” is that questions of legitima-
tion are subsumed under the problem of the guarantee of their
legality, which thereby “permits them to be avoided.”^83 Here we
see themes percolating in Habermas’s thought and rhetoric with a
pedigree stretching back to the 1950s debates over German statism.
Originating in “that curiously effective Hobbesianism elaborated
in German constitutional theory by Carl Schmitt,”^84 its effects are
dramatically clear. Habermas accorded the jurists a leading role
in the drama that surrounded the citizen mobilization against the
Euromissiles: The “tenor of public debate” is chiefly shaped by
the “state-supporting dogma” of “the law is the law mentality.”^85
Moreover, the political class opposed it as well: “The President of the
Federal Constitutional Court, the government, the opinion leaders
among politicians and journalists present [the dominant] opinion
among German jurists: that illegal protest is not only punishable
but also morally reprehensible.”^86 Habermas placed the lion’s share
of responsibility for the weaknesses of German political culture on
its jurists.
Habermas’s frustration with the politics of law in the Euromissile
debate was not simply attributable to his position on the losing side
of one battle, however. In essence, Habermas feared that the tra-
dition of authoritarian legalism was responsible for a version of
the German Sonderweg (special path of development), that is, that
the retardation and truncation of German democracy had roots
stretching into the nineteenth century. The statist bias of German
jurisprudence stemmed from legal relationships that Habermas pro-
vocatively labeled “premodern”: “These conventional concepts of the
state, which stem from premodern legal relationships, truncate the
(^82) Habermas, “Testfall,” 41.
(^83) Habermas, “Recht und Gewalt,” 108.
(^84) Ibid., 107. Disappointingly, Habermas has not drawn fine enough distinc-
tions between Hobbes and Schmitt to help us categorize the neoconservatives
more precisely. See also “Recht und Gewalt,” 113; “Neokonservativen,” 50.
(^85) Habermas, “Testfall,” 35.
(^86) Ibid., 101; “Right and Violence,” 126.