Habermas

Synthesizer of Constitutional Theory, 1958–1963 83

more critical than that articulated by the Court. That Habermas
would find it necessary in 1963 to argue against the natural-law
grounding of rights reveals a dramatic gap in Habermas’s under-
standing of what had occurred recently in West German jurispru-
dence. He must not have grasped the extent to which Lüth marked
the end of the natural-law renaissance of the 1950s. It is surprising,
therefore, that Habermas described the discussion of human and
civil rights in Germany as “peculiarly ambivalent.”^107 He deemed
the discussion of rights in the advanced democratic welfare states to
be “paradoxical” because

On the one side, the guarantee of fundamental rights is the foun-

dation of constitutionality.... On the other side, Natural Law is

devoid of any and every convincing philosophical justification....

They have lost their credibility in the pluralism of attempts to jus-

tify them and in general have remained far below the level of con-

temporary philosophy.^108

His main example is the philosophers Nicolai Hartmann and Max
Scheler.^109 But Lüth had shown that the discussion of rights in
Germany had moved beyond the natural law argumentation of the
early 1950s, and Scheler and Hartmann were no longer relevant to
the discussion.
For this reason, Habermas’s characterization of the Cold War as
a clash between the party of natural law (the West) and the party of
revolution (the Eastern Bloc) seems anachronistic. Habermas sug-
gested that Marxism had gone too far in “discrediting the idea of
legality” and that the inherent “link” between natural law and revo-
lution thus had been broken:

Marx, with his critique of ideology applied to the bourgeois

constitutional state... went beyond Hegel to discredit so enduringly

for Marxism both the idea of legality itself and the intention

of Natural Law as such, that ever since the link between Natu-

ral Law and revolution has been dissolved. The parties of the

internationalized civil war have divided this heritage between

themselves with fateful unambiguity: the one side has taken up the

heritage of revolution, the other the ideology of natural law.^110

(^107) Habermas, “Natural Law,” 113.
(^108) Ibid.
(^109) Ibid.
(^110) Ibid.