84 Habermas: An intellectual biography
Perhaps the anachronism is less acute if the interpretation is
reframed: Given that Habermas was impressed by the progressive
trend initiated by Lüth in 1958, it is possible that he was frustrated
by the ideology of the Cold War that appeared to reinscribe the
very dichotomy that a radically reformist jurisprudence challenged.
In other words, the jurisprudence of the high court signified the
potential of a constitutional state to redeem the promises of
the basic rights and, with them, the broader “validity-claim” of the
Rechtsstaat. Negative injunctions were being reconceived as positive
guarantees, just as he and Abendroth had hoped earlier. Lüth mod-
eled a radical reform of German political institutions that suggested
exit routes from the antinomy of natural law or revolution.
The openness of the Smend school to influences from Anglo-
American jurisprudence also resulted in a dialogue with the émigré
Social Democratic–republican tradition in Weimar theory. By
the time of Lüth, the Smend school had built bridges to Anglo-
American jurisprudence. This resulted in a dialogue with the Social
Democratic–republican tradition in Weimar theory, representatives
of which had taken refuge in the United States. Smend’s student,
Horst Ehmke, for example, built personal and intellectual con-
nections to Otto Kirchheimer and Ernst Fraenkel before Fraenkel
returned to Germany in 1951. Smend offered Kirchheimer a chair
in Göttingen, but Kirchheimer declined, opting instead to remain
in the United States. Despite the exonerating function of the
myth of judicial positivism, the high court’s adoption of Smend’s
theory of integration led to a convergence between representatives
of the Smend school and the Abendroth school around the idea of
“objective rights.” The convergence also can be described as a rap-
prochement between the positions of Weimar antagonists Smend
and Heller. Similarly, Peter Häberle’s 1962 dissertation, written
under Smend’s student, Konrad Hesse, in Freiburg, emphasized the
institutional, that is, “objective,” side of basic rights.^111
German constitutional theory was the decisive influence shap-
ing Habermas’s political thought in the years 1958 –63. The politics
of the constitutional lawyers after World War II led to a division of
their professional association into three main groupings around the
figures of Schmitt, Abendroth, and Smend. Each position sought
to reconnect with the debates in constitutional theory that had(^111) See Günther, Denken, 253.