52 Habermas: An intellectual biography
Similarly, Abendroth described it as a “... clever and useful attempt
to represent political and public law problems” but nonetheless an
example of the tradition and ideology of the authoritarian state
(Obrigkeitsstaat).^111 Kirchheimer noted that Weber described Hitler’s
seizure of power in 1933 as the “... volcanic eruptions of the state’s
eternal tendency towards self-preservation.”^112 Kirchheimer’s judg-
ment on this obscurantism needs no updating:
[It is] somewhat astonishing to meet again – without prior attempt
at some sort of inventory – the old clichés: “the all-embracing pow-
er of the state,” with an acknowledged authority of its own... “the
strong executive,” which neutralizes party-politics and preserves the
permanence of the state... [the idea of the civil service as an elite]
and the people construed as an elementary organized force distinct
from and opposed to the pluralism of oligarchic power groups....^113
The popularity of Werner Weber’s book illustrates that the
cultivated pathos of German statism had public appeal beyond the
academy. However, the Association of Professors of Constitutional
Law was careful to police scandalous statements by the members of
the Schmitt school,^114 much of whose writings were considered taboo
by the Federal Constitutional Court. The result was that of the three
major paradigms in West German jurisprudence of the 1950s, it was
Smend’s that rose to dominate. Smend became the single most cited
and influential legal philosopher of the many-faceted West German
social project of integration.^115 Broken by tyranny and war, postwar
West German society was fractured among ex-Nazi Party mem-
bers and ex-Communists, burdened with an enormous number of
war-injured people and widows, and home to a refugee population
of 13 million Germans expelled from the Eastern territories of the
Third Reich. What could hold these groups together? The Federal
Constitutional Court considered itself responsible for integrating a
society riven by potentially dangerous cleavages. In Smend’s Theory
of Integration (1928), the Court found a suitable means of legitimat-
ing both its powers of judicial review (which had failed to take root(^111) Wolfgang Abendroth, “Foreword,” in Bürokratischer Verwaltungsstaat und soz-
iale Demokratie: Beiträge zu Staatslehre und Staatsrecht der Bundesrepublik, eds.
Herbert Sultan and Wolfgang Abendroth (Hannover: O. Goedel, 1955 ), 3.
(^112) Kirchheimer, “Review of Weber,” 886.
(^113) Ibid., 887.
(^114) See Günther, Denken von Staat her.
(^115) Ibid.