56 Habermas: An intellectual biography
and Forsthoff had declared the era of legal positivism over.^129 Schmitt
proposed “concrete order-thinking” (konkretes Ordnungsdenken) as
the antidote to the abstract-rational law of the modern West.^130
Concomitant to the critique of judicial positivism was the renais-
sance of natural law arguments. Numerous court decisions in the
first postwar decade demonstrate that judges were making recourse
to concepts of natural law, especially to negotiate cases stemming
from the Nazi period. In a decision of February 8, 1952, the Federal
Court (Bundesgerichtshof) addressed the question as to “... whether
laws and ordinances can be considered ‘law’ in the true sense of the
term, if their content offends against the claims of natural law or
against the generally valid rules of conduct in the Christian-Western
t rad it ion.”^131 An explicit rejection of legal positivism was articulated
by the Federal Constitutional Court on October 23, 1951, arguing
that even the framers of constitutions can create laws that “... will
overstep the absolute bounds of justice.”^132 As the per curiam opinion
put it, “... the memory of ‘legalized wrong’ [gesetzliches Unrecht] is
still fresh.”^133 Other decisions of the Federal Constitutional Court
in the early 1950s made reference to “moral law” or the “dictates of
morality.” In 1952, for example, an opinion read, “Commands issued
by the sovereign which do not even aim at bringing about justice...
but which flagrantly ignore the rights and the dignity of human per-
sonality as they have been observed by all civilized peoples, do not
create law.”^134 Another 1952 decision of the Federal Constitutional
Court similarly spoke of the “existence of suprapositive law.”
Despite the fact that it was based on a false reading of the his-
tory of the Third Reich, Radbruch’s account of what went wrong
sealed the fate of legal positivism in the 1950s. With Kelsen in
exile and Schmitt banned from teaching, Smend’s theory was ide-
ally placed to benefit from the weakness of the other paradigms.
Moreover, his theory dovetailed neatly with the desires of business
and labor, church and state, to secure social peace.^135 The concept(^129) Müller, Hitler’s Justice, 71.
(^130) Walther, “Die Positivismus-These,” 349.
(^131) Ernst von Hippel, “The Role of Natural Law in the Legal Decisions of the
Federal Republic,” Natural Law Forum 4:1 ( 1959 ), 112.
(^132) Ibid.
(^133) Ibid., 113.
(^134) Ibid., 115.
(^135) Schlink, “Why Carl Schmitt?,” 434.