80 Habermas: An intellectual biography
care not to be too explicit about it, but its understanding of basic
rights as values comprising a system of values and of free action as
more or less value-laden was rooted in the natural law renaissance
of the time. This understanding... also undergirds the current
view that basic rights are elements of an objective order, which is
to say, they are not merely subjective individual rights but objec-
tively obligate the government to ensure conditions of freedom
and equality. Smend’s was the constitutional theory accompanying
these developments. Again the Federal Constitutional Court cau-
tiously avoided express references to it. But its presupposition that
basic rights form a value system found an obvious second root in
Smend’s concept of a basic rights value system as a national system
of moral values and cultural goods.^90
As explained in Chapter 1 , Smend’s theory was the most conge-
nial theory available after Schmitt’s decisionism and the positivism
of Hans Kelsen, Richard Thoma, and Gerhard Anschütz had been
discredited. Its need for an antipositivist doctrine led the Court to
varieties of value jurisprudence. But the Court eschewed explicit
reliance on Smend’s ideas because Smend’s democratic credentials
were not entirely in order. Thus, when the Court decided that the
international reputation of Germany was at stake in the Lüth case,
it took care not to explicitly rely on Smend, whose sympathies for
Mussolini in the 1920s were well known. In 1956, Smend complained
about his reputation: “The theory of integration is denounced from
the conservative side as ultrademocratic, and from the liberal and
socialist [sides] as fascist.”^91
But the evidence of Smend’s influence on the Lüth judgment is
overwhelming. Scholars agree that the case was clearly connected
to the material, value-oriented theory of Smend and that it relied on
Smend’s emphasis on the social dimensions of freedom of expres-
sion.^92 Ironically, the Smend school distanced itself from the Lüth
judgment. While the Court clearly reached back to the integration
language of Smend’s 1928 work, the Smend school had since moved
in a different direction. Indeed, Smend dropped the words “value”
(We r t) and “value order” (Wertordnung) from his 1958 lexicon article(^90) Bernhard Schlink, “Why Carl Schmitt?” Constellations 2:3 ( 1996 ), 429–44.
(^91) Smend, “Integrationslehre,” 301.
(^92) See Henne, Lüth Urteil, 220; Staff, Lüth-Urteil, 319; Stefan Ruppert,
“Geschlosenne Wertordnung? Zur Grundrechtstheorie Rudolf Smends,” in
Henne, Lüth-Urteil, 342–6.