Synthesizer of Constitutional Theory, 1958–1963 81
on the theory of integration.^93 As the leading scholar of the case
summarizes it, “An astonishing path: the theories and theses of the
antipositivist Smend, genuinely antiparliamentary and antiliberal,
served now... as the keyword for the basic rights jurisprudence of a
parliamentary and liberal democracy.”^94 Thus the defining decision
of postwar West German jurisprudence was bathed in a number of
ironies.
The Lüth decision shared with the earlier “militant democracy”
decisions a description of the constitutional order as the repository
of fundamental values. But whereas in the judgment against the
SRP in 1952 the Court had spoken of “highest fundamental values”
(oberste Grundwerten) and a “value-bound order” (wert-gebundenen
Ordnung), the Lüth C ou r t now s p ok e of a “ v a lue s y s t em” (We r t s ys te m)
and “objective value order”(objektiven Wertordnung).^95 Concealed
within these scintilla of linguistic difference was a revolutionary
sea change. Smend had appropriated the concept of “values” from
fellow Weimar philosopher Max Scheler (1882–1950) and his stu-
dent Nicolai Hartmann (1874–1928).^96 Their “material value ethics”
was a variant of natural law. The Court’s invocation of an “objec-
tive value-order” meant something different than it had meant for
Smend, Scheler, and Hartmann. By 1958, a retreat from the natu-
ral-law renaissance of the first half of the decade was under way;
Lüth was its death blow.^97 The Court moved away from the “value
philosophy” of Hartman and Scheler and toward a reliance on the
concrete constitutional text.^98 As one scholar of the case explains,
“... ‘objective value order’ was Verfassungsimmanent – and therefore
marks a break with arguments from natural law.”^99 In other words,
the value system of the constitution was no longer thought to be
anchored in transcendental truths; its “objectivity” referred only to
its immanence in the constitutional text itself. In another scholar’s
words, “The formula of value-order (Wertordnung) was the means
of transport, the catalyst of the new. Once executed – and this hap-
pened relatively quickly – one didn’t need the impulse anymore.”
(^93) Günther, Denken, 167–71.
(^94) Henne, “Von 0 to Lüth,” 220.
(^95) Ibid., 218
(^96) Ruppert, “Geschlossene Wertordnung,” 334.
(^97) Günther, Denken, 194; Henne, Lüth-Urteil, 207–9.
(^98) Günther, Denken, 195.
(^99) Ruppert, “Geschlossene Wertordnung,” 346.