Introduction 19
also revolutionized its meaning: By curtailing the power of the state
and suppressing political movements hostile to the “free democratic
basic order,” the Basic Law was restorative; by positing a higher law
beyond positive law, it announced a departure from Weimar legal
positivism. The Basic Law “... recreated the formal Rechtsstaat – a
state based on the rule of positive law (Gesetz) – but now that law is
“subject to the suprapositive notion of justice or Recht.... In short,
the Rechtsstaat far from being an end in itself, now serves the consti-
tutional state (Verfassungsstaat).”^70 The idea of law in the Basic Law
was intended to be a normative one, not simply a statement of fact.
The growth of a Federal Constitutional Court with powers of
judicial review is a landmark in the establishment of the separation
of powers and therefore in the liberalization of German politics.
Judicial review powers did not exist in Weimar.^71 The astonishing
rise of the Federal Constitutional Court has helped to build one
of the strongest human rights cultures in the world. Despite this
record of achievement, though, Habermas consistently viewed the
high court and the constitutional lawyers as a poor substitute for the
robust democratic debate of basic values and policy choices. While
he never went as far as Schmitt in contrasting liberalism and democ-
racy, he clearly saw a tension between the two. At times, Habermas
was sceptical of German democracy’s “precommitment” to basic
rights because this commitment appeared to freeze the democratic
process. He did not always value the “democracy enabling” elements
of constitutional precommitment.^72 This was so for Habermas when
the concept of the free democratic basic order was instrumentalized
in the Cold War and again in the context of German reunification.
Habermas’s political philosophy is universalist but not foundation-
alist: The rhetoric of human dignity that forms the heart of the con-
stitution does not possess a sacred, foundational quality for him.
Habermas’s antifoundationalist position makes political sense,
however, because even a foundationalist, dignitarian constitution
Cited in Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory
(Cambridge, England: Cambridge University Press, 2004 ), 109.(^70) Donald Kommers, “German Constitutionalism: A Prolegomenon,” Emory
Law Journal 40 ( 1991 ), 846.
(^71) The Weimar constitution created a high state court, Staatsgerichtshof, to
hear constitutional disputes between branches and levels of government,
but this was a specialized tribunal outside the regular judiciary.
(^72) “Precommitment is justified because it does not enslave but rather enfran-
chises future generations.” Holmes, “Precommitment,” 216.