Introduction 23
regards.^91 And Habermas has jokingly referred to himself during
the years he was writing his magnum opus of legal and political the-
ory as “a lay jurist.”^92 This phrase captures something quintessential
about Habermas’s presence both within and outside the professional
community of German jurists.
Constitutional law was a magnet for Habermas because of the
burdens carried by the law in West Germany after 1945. Assuming
these burdens was Habermas’s major strategy for changing the polit-
ical culture. Clearly, he was fascinated by the law. Perhaps this was
due to its ambivalent, mercurial character that presented obstacles
to the generations that sought to make of West Germany a more
democratic and liberal political culture but also furnished resources
for the struggle. Why Habermas found it necessary and appeal-
ing to become a kind of “lay jurist,” and how Habermas worked
through the institutional, political, and intellectual dimensions of
liberal constitutional order in Germany are the central questions
addressed by this book.
Chapters 1 and 2 excavate the political and intellectual contexts
of Habermas’s earliest political theory, written between 1956 and
- These chapters describe how debates in German constitu-
tional theory and a series of revolutionary decisions by the Federal
Constitutional Court shaped the findings of Habermas’s first book-
length study, The Structural Transformation of the Public Sphere
(1962). Habermas’s theory of the public sphere evolved from a ques-
tion of praxis. The practical problem was how to respond to the
multifaceted crisis of the Social Democratic Party after its electoral
defeat in 1957. The theoretical dimension concerned the normative
deficit in Critical Theory. In these chapters, we observe Habermas
navigating the major schools of constitutional theory in the 1950s
and the legacies they carried from the Third Reich. Three major
legal debates in the 1950s are shown to be relevant to Habermas’s
intellectual development: The first concerned the extent to which a
welfare state was constitutionally mandated, the second concerned
whether constitutional principles could be seen as expressions of a
(^91) Author’s conversation with Klaus Günther, June 10, 2005 , Frankfurt am
Main.
(^92) Habermas, “Der Philosoph als wahrer Rechtslehrer,” in Habermas,
Die Nachholende Revolution: Kleine Politische Schriften VII (Frankfurt/
Main: Suhrkamp, 1990), 52.