22 Habermas: An intellectual biography
Thus do we arrive at the central paradox of Habermas and the
institutional culture of German law. The Federal Constitutional
Court was designed as a kind of “social superego”^84 for a German
polity the founders did not entirely trust with democracy. This elic-
ited a backlash from Habermas, who rejected its paternalism. In the
context of civil disobedience actions that he supported in the 1980s,
Habermas warned: “Historical experience speaks for the system-
atic prejudice of representatives of the state and – God knows! – of
scholarly jurisprudence. Again and again these generations retreat
from certain historical challenges which [require] corrections or
jurisprudential innovations.”^85 The persistence of German statism
is particularly manifest in Schmitt’s legacy. The recurrent temp-
tations of Schmitt’s political theory for both the German left and
the German right cause Habermas tremendous consternation.
Habermas’s Between Facts and Norms was designed in part to respond
to the German left’s temptation to develop Schmitt’s antithesis from
a left-wing perspective.^86 Between Facts and Norms represents a solu-
tion to the problem of the alleged contradiction between liberalism
and democracy by describing them as “internally related” to one
another and mutually supportive.
Meanwhile, as a ’58er, Habermas was keenly aware of the value
of the rule of law, the absence of which is a defining experience of
his generation. He saw the Rechtsstaat as a historic feat.^87 He recent ly
stated that in the 1950s he came to regret not having studied law.^88
He also described his political identity in the early 1960s (and ever
since) as a member of the “... constitutionally-loyal Left to the
left of the Godesburg SPD.”^89 In the words of long-time colleague
and friend Ulrich Preuss, “With Habermas, the law was always an
obsession.”^90 Another colleague from the University of Frankfurt
notes that Habermas was always a “legalistic” thinker in some(^84) Ingeborg Maus, “Justiz als Über-Ich. Zur Funktion von Rechtsprechung
in der ‘vaterlosen Gesellschaft’,” in Werner Faulstich and Gunter E.
Grimm, eds., Sturz der Götter? Vaterbilder im 20 Jahrhundert (Frankfurt/
Main: Suhrkamp, 1989), 121.
(^85) Habermas, “Recht und Gewalt,” in Die Neue Unübersichtlichkeit: Kleine
Politische Schriften V (Frankfurt/Main: Suhrkamp, 1985), 112.
(^86) Werner-Müller, A Dangerous Mind, 195.
(^87) Ibid., n. 48.
(^88) Author’s private correspondence with Habermas, June 7, 2005.
(^89) Ibid.
(^90) Author’s conversation with Ulrich Preuss, July 2001 , Cortona.