Civil Disobedience and Modernity, 1978–1987 165
conservative and progressive functions: It could function conser-
vatively as the measure of last resort for averting a great threat, or
promote social progress. In his struggle with German statism, expli-
cating the qualities of civil disobedience helped Habermas to work
out a new framework for combining legality and legitimacy.
THE “NONIDENTICAL” RECHTSSTAAT AS SYNTHESIS
To escape the antinomies of the debate on the right of resistance,
Habermas had to craft a new account of the democratic Rechtsstaat.
Neither the “authoritarian-legalist” nor the moral resistance fighter
fully grasped democratic citizenship, he explained. The authori-
tarian legalist downplayed the question of legitimacy or argued
that representative institutions secured sufficient legitimacy for
any decision of the majority. The critical jurist or moral resistance
fighter who sought to legalize his resistance diluted and devalued
legal order and moral protest equally. Both the criminalization
of civil disobedience and its legalization drained the reservoir of
legitimacy on which democratic legality drew.^135 Habermas prof-
fered an illuminating metaphor: Civil disobedience must remain
suspended between legality and legitimacy; only then could it signal
that the democratic Rechtsstaat “points beyond” its legitimating con-
stitutional principles.^136 Habermas’s introduction of the concept of
“remaining in suspense” (in der Schwebe bleiben) was the critical move.
There is a “relationship of tension” between legality and legitimacy
that must be maintained if democracy is to retain its open, evolving
character: in short, its “modern” sense of time.^137
The repression of civil disobedience by authoritarian jurists
focused Habermas’s mind on how close the spheres of legality and
morality stood to each other. Civil disobedience was no “normal
crime,” Habermas argued, because it derived a specific “dignity”
from the highest legitimation claims of the democratic Rechtsstaat.
Judges and prosecutors who failed to “respect this dignity” by
applying the normal criminal penalties fell “... into an authoritarian
(^135) Habermas, “Recht und Gewalt,” 112–3.
(^136) Habermas, “Testfall,” 43.
(^137) Habermas, “Testfall,” 38. See also Habermas, “Modernity’s Consciousness
of Time,” in PDM, 7, 12.