164 Habermas: An intellectual biography
Rechtsstaat is in the last instance directed to this guardian of [its]
leg it i mac y.^129
With these arguments, Habermas left himself vulnerable to the
criticisms of jurists such as Isensee and Kriele, who emphasized the
undemocratic implications of his argument: “The democratic con-
stitution gives neither individuals nor groups the right... against
the will of the population and against its democratic representatives,
to raise itself up to the guardian of the constitution. The right of
resistance is not a substitute for the general democratic discourse
and cannot be its legitimate conclusion.”^130 Kriele further noted that
intellectual appeals to a moral majority were undemocratic, sarcasti-
cally stating that “[w]e the majority of the democratic citizens are
intellectually dull and morally deaf.... If we are corrected by the
enlightened and sensible elite, this is only for our own good.”^131 On
the Social Democratic left, too, Peter Glotz expressed the concern
that right-wing groups could take advantage of the identical plebi-
scitary argument for their own issues.^132
There were other ironies and tensions in Habermas’s argument.
Habermas’s claim that civil disobedience represented an opportu-
nity for Germany to become “mature” was contradicted by his con-
cession that the practice of civil disobedience requires a political
culture tolerant of it in the first place. His claim that civil disobe-
dience could be justified only under conditions of a “fully intact
Rechtsstaat” was in tension with his description of it as the appro-
priate response to a threat of a severe or imminent “breakdown”
of the Rechtsstaat. On the other hand, Habermas described civil
disobedience as a mode of experimentation that functioned as the
“moral pacesetter” for both societal evolution and constitutional
“i n novat ion.”^133 “In these cases,” he explained, “infractions of civil
law are morally grounded experiments without which a vital repub-
lic can preserve neither its capacity for innovation nor the faith of
its citizens.”^134 In Habermas’s hands, civil disobedience had both(^129) Habermas, “Testfall,” 88; see also “Recht und Gewalt,” 112–3.
(^130) Isensee, “Ein Grundrecht auf Ungehorsam,” in Streithofen, Frieden im
Lande, 165.
(^131) Kriele, “Widerstandsrecht in der Demokratie?” 150.
(^132) Glotz, “Nachwort,” 148–9.
(^133) Habermas, “Testfall,” 41.
(^134) Ibid., 40–1. Habermas cites Dworkin, “Civil Disobedience,” in Taki ng
Rights Seriously (Cambridge, MA: Harvard UP, 1977).