50 Habermas: An intellectual biography
of category mistakes. The Rechtsstaat prioritizes the freedom of the
individual, Schmitt explained, but, in doing so, represses its need
to defend itself with the blood of its own citizens: “In case of need,
the political entity must demand the sacrifice of life. Such a demand
is in no way justifiable by the individualism of liberal thought.”^104
Liberalism “negates” the state and the political. As a consequence,
it offers no “positive” theory of the state. Rather, it has only “...
attempted to tie the political to the ethical and to subjugate it to
economics. It has produced a doctrine of the separation and balance
of powers [but] this cannot be characterized as a theory of state or a
basic political principle.”^105 Schmitt convicted liberalism of lacking
the strength of its own convictions.
Werner Weber (1904–76) followed his teacher Schmitt in assert-
ing that the West German democracy established in 1949 lacked
legitimacy in part because it denied or misrecognized its political
nature. Weber was representative of those who became prominent
professors of law in the first decades of the Bonn republic. A student
of Carl Schmitt’s in Bonn during the Weimar period, he served in
the Prussian Ministry of Science and Education and held chairs in
law from 1935 until the end of the Third Reich. In the 1950s, he
gained a relatively wide readership for a series of books and pam-
phlets in which he applied Schmitt’s analysis of the Weimar con-
stitution to the West German Basic Law (Grundgesetz). An effort
to reconstitute Schmitt’s interwar critique of liberal democracy on
the postwar terrain, the publication of Tensions and Forces in the West
German Constitutional System in 1951 caused a sensation among the
West German intelligentsia. Distilling the essential questions of
institutional design in the 1950s, the text is a classic of 1950s radical
conservative political thought.
Each of Weber’s critiques of the constitution was made in the
name of the sovereignty of the people. The division of powers, an
enduring feature of the Rechtsstaat, was described as a fateful “divi-
sion of sovereignty”; political parties mediated and thereby diluted
the sovereign popular will. Federal and regional constitutional courts
exerted a countermajoritarian power of judicial review. The dilution
of popular sovereignty accompanied the rise of a decadent legalism.
In sum, the cunning force of “the political” was, in Weber’s words,(^104) Ibid., 60.
(^105) Ibid., 61.