16 Habermas: An intellectual biography
a functional mechanism for the preservation of capitalism. Law
was neither a true expression of the popular will nor a reflection
of moral values beyond the law, but rather the most rational way
of ordering a “disenchanted” world, that is, a world in which tradi-
tional worldviews have given way to a polytheistic clash of ultimate
values.^58 The legitimacy of legality depends only on two condi-
tions: As Weber puts it, legitimacy rests on “... belief in the legality
of enacted rules and the right of those elevated to authority under
such rules to issue commands.”^59 Weber can be categorized as a
legal positivist because he did not distinguish between de facto and
de jure legal order. Habermas engaged in a close critical reading of
Weber’s writings on the legality-legitimacy problem, arguing that
Weber had ensnared himself in a vicious circle.^60 Habermas argued
that Weber’s positivist conception of law resulted in a decisionistic
concept of legitimacy.
Weber was a decisionist because he followed Nietzsche in argu-
ing that value decisions were strictly irrational; the choice of what
to consider a god and what a demon ultimately was arbitrary and
ungrounded. In his last political writings from 1918, Weber pre-
scribed a strong role for the president as the solution to the problem
of a weak German parliament incapacitated by parties and bureau-
cracy. The directly elected president would have “superior demo-
cratic legitimacy” compared with the mere rule of law produced by
an enfeebled parliament.^61 A parliament dominated by bureaucratic
and party-political forces was enclosed within an “iron cage” of
instrumental reason. Only a Caesarist politician, a charismatic leader,
could provide this machine with direction. But the choice of this
direction was unmoored in any theory of the collective good. Thus
would “charismatic legitimacy” make up for the steering deficit of
“rational-legal” legitimacy. Both Weber’s positivist conception of law
and his decisionistic concept of legitimacy were symptomatic of the(^58) See David Dyzenhaus, “Legitimacy of Legality,” University of Toronto Law
Journal 46:1 (Winter 1996 ), 129–80.
(^59) Weber, Economy and Society, 215.
(^60) Habermas, Theory of Communicative Action, Vol. 1: Reason and the
Rationalization of Society, trans. by Thomas McCarthy (Boston: Beacon
Press, 1984), 265. Compare Habermas, Legitimation Crisis, trans. by Thomas
McCarthy (Boston: Beacon Press, 1975 ), 97.
(^61) Carl Schmitt, Legality and Legitimacy, trans. and ed. by Jeffrey Seitzer with
an intro. by John P. McCormick, (Durham, NC: Duke University Press,
2004 ), xv.