Introduction 15
So wrote Habermas in 1983. The mischief of which he wrote has
a distinguished German intellectual pedigree. It links its greatest
social theorists, Karl Marx (1818–83) and Max Weber (1856–1920),
to its most infamous jurist and political theorist, Carl Schmitt
(1888–1985), apologist for the Third Reich. In Marx, legality and
legitimacy were radically divorced from one another. Liberal con-
stitutional order did nothing to resolve the social contradictions
of capitalism. The legitimacy of the social order depended on the
transformation of the economy and the sublation of the alienated
political sphere into a new egalitarian form of society and econ-
omy. Ingeborg Maus, a colleague from Habermas’s University of
Frankfurt legal theory group, has written of Habermas’s “emphatic
critique of a tradition in legal theory that goes back to Marx”:
“... Marx’s fundamental critique of bourgeois formal law, which
insisted that the latter was exclusively repressive in character, failed
to recognize the elements of formal law which forged the basis for
individual liberty and which were discarded by the systems of Eastern
bloc socialism to devastating effect.”^55 While Habermas’s political
writing of the late 1950s contained an orthodox Marxist critique of
the liberal Rechtsstaat, a reappraisal of liberal legality was already
under way by the publication of The Structural Transformation of the
Public Sphere in 1962.^56 Habermas’s recasting of German political
thought involved a sustained engagement with and ultimate rejection
of the Marxist critique of legality as merely formal and bourgeois.
In the Theory of Communicative Action (1981), Habermas charac-
terized Max Weber as a legal positivist who had failed to grasp the
normative dimension of law. Weber’s contributions to the debate
on legality and legitimacy are found in his posthumously published
Economy and Society.^57 Like Marx, Weber viewed the rule of law as
(^55) Ingeborg Maus, “Liberties and Popular Sovereignty: On Jürgen Habermas`s
Reconstruction of the System of Rights,” in “Habermas on Law and
Democracy: Critical Exchanges,” Cardozo Law Review 17 (4–5), 829.
Karl Marx, “On the Jewish Question,” (1843) is the locus classicus of the
argument.
(^56) Habermas, “Reflexionen über den Begriff der Politischen Beteiligung,”
in Ludwig von Friedeburg, Christoph Oehler, and Friedrich Weltz, eds.,
Student und Politik: eine soziologische Untersuchung zum politischen Bewusstein
Frankfurter Studenten, (Neuwied: Luchterhand, 1961), 11–55; “On the
Concept of Political Participation” hereafter.
(^57) Max Weber, Economy and Society: An Outline of Interpretive Sociology [1920],
Günther Roth and Claus Wittich, eds., trans. by Ephraim Fischoff et al.
(Berkeley: University of California Press, 1978 ).