Introduction 13
at one of their campaign meetings in 1949.^47 Had Habermas not
believed to some extent in the new beginning signified by the Bonn
Republic, the anger he recalls feeling at the Seebohm appointment
would not make sense. Redeeming the promise of the Rechtsstaat –
its validity-claim, to use a Habermasian locution – is an agenda
rooted in Habermas’s experience in the 1950s.
Habermas’s primary contribution to the liberalization and
Westernization of German political culture was the sustained man-
ner in which he recast German political and legal thought. A num-
ber of recent intellectual histories of twentieth-century Germany
have lent concreteness to the liberalization and Westernization
paradigms, but the role played by constitutional law in the cultural
reorientation has fallen between two stools – that of the histori-
ans and that of the legal scholars. This book aims to bridge that
gap. Habermas dissolved long-standing antinomies in concepts of
law and state that had contributed to the polarization of German
politics from the German Empire (1871–1918) to the reunification
of Germany in 1990. Three vexed conceptual relationships preoc-
cupied Habermas throughout his career: of state and civil society, of
legality and legitimacy, and of constitutionalism (Rechtsstaatlichkeit)
or the rule of law (Rechtsstaat) and democracy. All three problems
stem from the peculiarities of German statism.
ANTINOMY I: STATE AND CIVIL SOCIETY
German statism is a view of governance rooted in the late eigh-
teenth-century history of Prussia and the history of the German
Empire, but with consequences still visible at present. The concept
of “Staat” is synonymous with neither “state” nor “government” or
“nation” but rather connotes a community that aspires to “a higher
grade of moral quality than Gesellschaft (societ y).”^48 Its key features
were a view of the state centered on the executive branch, a treat-
ment of the executive and administration as a politically neutral
mediator entirely above the fray of competing interests in civil soci-
ety, a metaphysical view of the state as a source of social integra-
tion and ethical guidance, and a dissociation of the rule of law from
(^47) Ibid.
(^48) Erhard Denninger, “Judicial Review Revisited: The German Experience,”
Tulane Law Review 59 (1984–5), 1013.