66 Habermas: An intellectual biography
beyond capitalism. In its current form, the Basic Law appeared to
serve the interests of the bourgeoisie above all, leading Habermas
to argue that there could be no real democracy without a socialist
transformation of society and the economy. As he explained:
Under present social relations, the political control of the func-
tions of private capitalist property is the necessary precondition for
securing an equal distribution of opportunities for political self-
determination and for extending legal security to all spheres of
s o c i e t y.^37
Here Habermas followed Abendroth and Hermann Heller before
him: The contradictions of liberal democracy could be resolved in
only one of two ways: by evolving into either an authoritarian capi-
talist state or a democratic socialist one.^38 But what distinguishes
Habermas’s essay from the writings of Abendroth and Heller is the
emphasis on the immanent critique of liberalism. Liberal constitu-
tionalism could not be completely discounted because it contained
an “intention” that pointed beyond capitalism, leading Habermas to
warn: “Unequal division of property is not compatible with demo-
cratic equality, strictly speaking. Either the liberal Rechtsstaat fulfills
its own intentions to become a democratic and social constitutional
state,” or it will reverse and take on a more or less authoritarian
shape, as it had in 1933.^39
In the same vein of immanent critique, Habermas used
Montesquieu’s The Spirit of the Laws (Esprit des Lois, 1751) as a foil for
his anatomy of the Rechtstaat as an ideal institution.^40 The recourse
to Montesquieu probably was suggested by his reading of Franz
Neumann’s “Montesquieu”(1949), which anticipated Habermas’s
own conclusions that liberal constitutionalism and democracy were
antitheses, as well as Forsthoff’s 1951 translation of the Esprit des
Lois into German.^41 Neumann had described Montesquieu as a
naif whose model of liberalism functioned trivially as a “Baedeker’s(^37) Habermas, Student und Politik, 47.
(^38) Hermann Heller, Rechtsstaat oder Diktatur? [ 1930 ], enlarged version of 1929,
in Heller, Gesammelte Schriften, Bd. 2, Recht, Staat, Macht, eds. Hermann
Heller, Gerhart Neimeyer, Martin Drath (Leiden: A.W. Sijthoff, 1971).
(^39) Habermas, Student und Politik, 45 (emphasis added).
(^40) See Neumann, “Montesquieu” [1949], in idem, Demokratischer und Autoritarer
Staat, 142–94.
(^41) Ernst Forsthoff, trans. and ed., Vom Geist der Gesetze (Tübingen: Laupp,
1951 ).