166 Habermas: An intellectual biography
legalism.” Convinced of the specific dignity of the practice, Habermas
sought to understand this moral intuition. Following Rawls’s usage,
Habermas named civil disobedience a “touchstone [Prüfstein] for
the ripeness of a political culture.”^138 By explicating the specific dig-
nity of civil disobedience, he reenchanted the Rechtsstaat. This reen-
chantment in the Weberian sense – drawing the link to morality
closer – served Habermas’s political need to effectively counter the
right’s effort to monopolize the moral high ground. Further, reen-
chanting the Rechtsstaat suited Habermas’s perennial need to rectify
the moral deficit in Weber’s theory of modernity.^139 But this was a
delicate undertaking because collapsing the distinction between the
two would flirt with a revival of natural law thinking, which repre-
sented a philosophical regression from the perspective of the secular
status of modernity.14 0 Nonetheless, the greater threat to Habermas’
mind clearly was that posed by legal positivism’s reduction of legiti-
macy to legality. Habermas sought a middle path between legal pos-
itivism and natural law, each of which was associated with a different
dimension of German statism. He sought a way to draw legality and
morality closer together without collapsing the two.
Habermas found his solution via a critique of the authoritarian
vision of law. Its shortcomings appear to have spurred Habermas’s
insights. Authoritarian legalism was blind to the productive tension
that connected the rule of law to democratic practice. Habermas
twice repeated the notion that there was “no room” or “space within”
this vision for his insight. His use of this evocative spatial metaphor
suggests that he had experienced the German tradition in question
as a constraining one:
Such a theory [the authoritarian-legalistic]... must consider
political culture as unimportant. For it, where legal order stops,
sudden rebellion, if not revolution, begins. There is no room for an
in-between, a political culture [politischen Kultur]... where, as Hegel
would have said, the ethical-moral life [Sittlichkeit] of a people is
played out. There is no room for a place where the legitimation beliefs(^138) Habermas, “Testfall,” 36.
(^139) Habermas correspondence with author, May 30–June 7, 2005: Question:
“Would you agree that throughout your career, you have been concerned
with the democratic deficit in the thinking of Max Weber?” Answer: “More
or less so, yes.”
14 0 See Chapters 1 and 2 for further discussion of natural law in
jurisprudence.