Habermas

72 Habermas: An intellectual biography

and civil society. As two political theorists in the Critical Theory

tradition observed in 1989, “Paradoxically, the analyst who has done

most to identify the normative ideal of the public sphere with the

differentiation of state and civil society came to the conclusion (in

Structural Transformation) that the ideal could only be saved by

accepting that the abolition of civil society had already occurred.”^60

FUNDAMENTAL RIGHTS

Between 1958 and 1961, a dramatic change occurred in Habermas’s

view of the fundamental rights guaranteed by the Basic Law. As

important as it is for understanding Habermas’s contribution to the

reorientation of the Critical Theory tradition, it has never been dis-

cussed in the literature on Habermas. Recall that in 1958 Habermas

dismissed the basic rights as a paternalistic grant of the state – a poor

substitute for real political power: “One gets the impression that cit-

izens of the so-called consumer society are also viewed juristically

as customers.... Outfitted with these rights, and as good as excluded

from real political power (Mitbestimmung), the people become a

mere object of care (Fürsorge).” By 1961, however, Habermas arrived

at a new argument: Rights were not purely ideological but poten-

tially redeemable:

[It]... has to be demonstrated that those basic rights guaranteeing

the effectiveness of a public sphere in the political realm (such as

freedom of speech and opinion, freedom of association and assem-

bly, and freedom of the press) that in their application to the...

structurally transformed public sphere they must no longer be

interpreted merely as injunctions but positively, as guarantees of

participation, if they are to fulfill their original function in a mean-

ingful way.^61

Immanent critique could turn rights from injunctions into guaran-

tees – or, in the more familiar language of liberal political theory,

from negative to positive liberties.

What accounts for the shift? Concurrent with the years in which

Habermas’s position changed, a revolutionary series of decisions was

(^60) Cohen and Arato, Civil Society, 254.
(^61) Habermas, Strukturwandel, 331–2; Transformation, 227.