160 Habermas: An intellectual biography
issue of whether coercion of a psychological character represented
“violence.” Isensee argued that the juridical concept of nonvio-
lence excluded restrictions on the freedom of movement of a third
party; Habermas sided with another law professor, who argued, on
the contrary, that the “freedom from violence” did not preclude
the application of psychological pressure.^109 With obvious anger,
Habermas dismissed the media’s distorted picture of these tac-
tics: “[T]hey report about these plans as if about war- preparations of
an attacker who threatens national security.”^110 “It is only a step from
contempt for the moral-political motivating principles of those who
breach the law to the disqualification of the protestor as an enemy of
t he st ate.”^111 Habermas feared that the state was poised to misjudge
the severity of threats to the liberal democratic order, much as it had
in 1977. Criminalizing protest was wrong.
One strategy that the peace movement used to fight back
against its criminalization was to claim that it acted in the name
of explicit constitutional rights. Habermas argued that weapons
of mass destruction might indeed constitute an injustice (Unrecht),
but he could find no grounds for describing them as an “obvious
infraction of the basic rights.”^112 He thus weighed the protestors’
arguments on the basis of a constitutional right to life and safety
from bodily injury and the fundamental obligation of the state to
maintain peace, but ultimately he rejected them on the grounds
that these arguments as easily could be invoked by the advocates of
nuclear deterrence.^113
Nor was Habermas convinced by the more innovative constitu-
tional arguments proposed by some of the leading figures in the dis-
senting or “critical” legal tradition, explaining that “[o]verreactions
by the state make it understandable that critical jurists want to legal-
ize [a right to civil disobedience].”^114 He admitted there were “good
grounds” for recent efforts to legalize civil disobedience through
an expanded interpretation of the rights to demonstration and(^109) Ralf Dreier, “Widerstandsrecht und ziviler Ungehorsam im Rechtsstaat,”
in Glotz, Ziviler Ungehorsam, 62. Dreier was professor for general legal
theory at the University of Göttingen.
(^110) Habermas, “Testfall,” 31–2.
(^111) Habermas, “Recht und Gewalt,” 102.
(^112) Habermas, “Testfall,” 45.
(^113) Habermas, “Testfall,” 45.
(^114) Ibid., 42.