The Making of a ‘58er 43
is aimed at extending the idea of a substantively democratic con-
stitutional state (which means especially the principle of equality
... and the idea of self-determination) to the entire economic and
social order.” Only this would give “... real content to the ideal
of a state committed to social rights.”^72 In Articles 20 and 28, he
explained, both concepts – Sozialstaatlichkeit and Rechtsstaatlichkeit –
are “directly bound up with the moment of democracy.” In the
“... binding of these three moments – Rechtsstaat, Sozialstaat and
democracy – we catch a glimpse of the legal heart of our system.”^73
Abendroth’s assertion that Sozialstaatlichkeit could not be under-
stood outside “the unity” of these other “contributing moments”
brings the radicalism of the program into view. He was not merely
saying that the state should extend social rights in T. H. Marshall’s
sense or that of the British Labour Party. What he was arguing for
is that rights qua rights could not be conceived of apart from the
democratic principle of self-determination. Abendroth’s program
therefore oscillated unstably between a reformist commitment to
social rights and a transformist one in which rights were sublated in
the Hegelian-Marxist sense into a broader concept of participatory
democracy and collective economy.
In West German legal scholarship, the positions of Forsthoff
and Abendroth are presented as the classic antipodes of the social-
welfare debate in the 1950s. But set in the broader frame of the
debate on the social-market economy discussed in the context of Bad
Godesburg earlier, the two have more in common than appears at
first sight. By the time Habermas read and appropriated Abendroth’s
and Forsthoff’s writings at the end of the 1950s, the positions each
had championed had been defeated or marginalized. The SPD and
CDU had converged in the political center with rival versions of the
“social-market economy.” For the leaders and majorities of delegates
to the two major political parties, neither a fully planned economy
nor a minimal “night-watchman state” were any longer considered
realistic. But Habermas did not recognize that the Abendroth-
Forsthoff debate on the future of liberal constitutionalism had been
eclipsed by events. To him, they still remained the most impor-
tant guideposts for thinking through the relationship of liberalism,
democracy, and socialism.
(^72) Ibid., 87.
(^73) Ibid., 84.