Synthesizer of Constitutional Theory, 1958–1963 69
case for legislative supremacy. Thus, before 1959, Habermas viewed
the Federal Constitutional Court as a paternalistic and repressive
force of conservative restoration; afterwards, as discussed below, his
view of the Court changed somewhat.
From the left constitutional-legal tradition embodied by
Abendroth, Habermas adopted the strategy of a parliamentary road
to socialism, buttressed by legal positivism, that is, a narrow and lit-
eral reading of statute. Despite the history of legal positivism’s long
association with constitutional monarchism, Social Democrats had
put their trust since the Weimar Republic in a democratic version of
a legal positivist approach to the constitution. This followed logically
from the fact that both the Weimar constitution and the Bonn con-
stitution contained broad commitments to social rights and welfare.^51
Legal positivism therefore could help to protect the expressed will
of the sovereign legislature from interference by an activist judiciary.
Thus the clauses of the Basic Law concerning social welfare could be
taken as broad mandates for a socialist economy. From Abendroth,
Habermas borrowed a critique of the notion that constitutional
rights were merely “negative” liberties (in Isaiah Berlin’s sense).
When Habermas observed that “our constitutional lawyers” have
the “inclination” to treat the Rechtsstaat and Sozialstaat as “oppo-
sites,” he did not aim to complement negative rights with positive
ones but rather to transcend the antinomy altogether.^52 Clearly echo-
ing the interwar Heller’s Rechtsstaat or Dictatorship? Habermas struck
the same chord: “Where the liberal Rechtsstaat does not evolve into a
sozialer Rechtsstaat, it remains in cont radict ion w it h itself.”^53 The con-
tradiction demanded the “transformation” (Umfunktionnierung) of
negative rights into rights of participation. As explained in Chapter
1 , Habermas moved to the left of the positions articulated by the
reform wing of the party at Bad Godesburg.
THE SEPARATION OF POWERS AND LEGAL NORMS
From Schmitt’s students, Ernst Forsthoff and Werner Weber,
Habermas appropriated a radical critique of the welfare state
(^51) See Peter Caldwell, “Is a Social Rechtsstaat Possible? The Weimar Roots of
a Bonn Controversy,” in From Liberal Democracy to Fascism, eds. Peter C.
Caldwell and William E. Scheuerman (Leiden: Humanities Press, 2000 ), 142.
(^52) Habermas, Student and Politik, 37.
(^53) Ibid., 36–7.