Civil Disobedience and Modernity, 1978–1987 159
of resistance, however loosely or metaphorically, the movement
was playing into the hands of the conservatives.^102 Grass’s state-
ments made him an easy target; his speech had been denounced
at the conference on the right of resistance as that of a “belated
resistance-fighter.”^103 As one professor of constitutional law and for-
mer judge wrote, “Without the bad German conscience about the
state (Staatsgewissen), this resistance would not be possible.”^104 He
complained that the invocation of the right of resistance by “house-
occupiers, environmental protectors, anti-nuclear energy fanat-
ics and other ‘alternative people’... means a sell-off of the right of
resistance at rock-bottom prices.”^105 Josef Isensee, another professor
of law, captured the essence of the conservative critique with his
comment that this resistance “... aims at National Socialist domina-
tion but it hits the parliamentary democracy of the Basic Law.”^106
Conservatives at the conference also exploited the semantic
ambiguity of the word “resistance”; its blurriness facilitated their
attempt to discredit the left’s distinction between active (violent)
and passive (nonviolent) resistance. “Resistance, be it with violence
or without it, destroys our constitutional order,” they insisted.^107
This view was widely disseminated by government and media. “For
months,” noted Habermas in October, “the Justice Minister and
Interior Minister of the federal government have been singing the
refrain... even ‘violence-free resistance is violence.’ ”^108 Habermas
was referring to the fact that protestors who had restricted others’
freedom of movement by forming human chains were being con-
strued by the authorities as violent actors. This, in turn, raised the
(^102) Habermas, “Testfall,” 33–4.
(^103) Josef Isensee, “Ein Grundrecht auf Ungehorsam gegen das demokratische
Gesetz? Legitimation und Perversion des Widerstandsrechts,” in Frieden
im Lande. Vom Recht auf Widerstand, ed. Basilius Streithofen (Bergisch-
Gladbach: Bastei Lübbe, 1983 ), 156. Isensee was professor of public law at
Bonn.
(^104) Arthur Kaufmann, “The Small-Coin Right of Resistance: An Admonition to
Civil Courage,” in Prescriptive Formality and Normative Rationality in Modern
Legal Systems: Festschrift for Robert S. Summers, eds. Werner Krawietz and
Neil MacCormick (Berlin: Duncker & Humblot, 1994 ), 573–9. Kaufmann,
professor of law at the University of Munich and a former judge, also was
the editor of Radbruch’s twenty-volume Gesamtausgabe.
(^105) Arthur Kaufmann, “Small Coin Right,” 573.
(^106) Isensee, “Grundrecht auf Ungehorsam,” 155–6.
(^107) Streithofen, “Einführung,” in Frieden im Lande, 11.
(^108) Habermas, “Testfall,” 29.