14 Habermas: An intellectual biography
democracy.^49 Statists viewed the executive branch, including the civil
service, as above the fray of competing interests in civil society and
therefore potentially an impartial judge (pouvoir neutre). Two centu-
ries of German statism made the question of the boundary between
state and society an important problem in German politics. In the
Prussian General Code of 1794, the state was counterposed to civil
society as the privileged agent that could stand above partisan pol-
itics and identify a common good. Civil servants, including univer-
sity professors, needed to be expert, moral, and loyal to the state.^50
Hegel’s Philosophy of Right (1821) inscribed the contrast between a
“universalistic” state and a “particularistic” society. Hegel’s notion
of an impartial class of bureaucrats (Beamten) stems from this
vision.^51 For one important analyst writing in 1960, the dichotomy
between the state conceived of as a realm that is “political” and soci-
ety conceived of as private, “prepolitical,” and nonpolitical found
its fullest theoretical expression in the German constitutional law
of the nineteenth century.^52 For an American-imposed democracy
to become a real, living democracy, Habermas ultimately reasoned,
civil society had to emancipate itself from the state.^53 The problem,
according to Habermas’s early analysis, was that state and civil soci-
ety appeared “fused” and “interlocked.” Disentangling the idea of
civil society from the idea of the state required an extensive coming
to terms with the German idea of the state and the related notion of
a boundary between the “political” and “social” spheres.ANTINOMY II: LEGALITY AND LEGITIMACY“With the conceptual pair, legality and legitimacy, much mischief
was done; that explains the reactionary posture of many jurists.”^54(^49) Werner-Müller, A Dangerous Mind, 5, 248.
(^50) See Gregg Kvistad, The Rise and Demise of German Statism: Loyalty and
Political Membership (Providence, RI: Berghahn, 1999 ), 23.
(^51) G. W. F. Hegel, Grundlinien der Philosophie des Rechts (Hamburg: F. Meiner,
1967 ).
(^52) Horst Ehmke, Wirtschaft und Verfassung (Karlsruhe: C. F. Müller, 1961), 5.
(^53) Author’s conversation with Günther Frankenberg, professor of public law,
legal philosophy and comparative law at the J. W. Goethe University, June
25, 2005, Frankfurt am Main.
(^54) Habermas, “Ziviler Ungehorsam – Testfall für den demokratischen
Rechtsstaat. Wider den autoritären Legalismus in der Bundesrepublik,” in
Die Neue Unübersichtlichkeit (Frankfurt/Main: Suhrkamp, 1985 ), 38.