Civil Disobedience and Modernity, 1978–1987 161
assembly.^115 But Habermas did not accept any of these efforts. Why?
It seems that neither criminalization nor formal legalization of a
right to civil disobedience was compatible with his distinct vision of
the democratic idea of law.
According to a Rawlsian definition that Habermas accepted,
civil disobedience is a “morally grounded act” that must appeal
to publicly recognized principles.^116 In September 1982, an article
critical of the protestors appeared in Die Zeit under the title, “The
Search for Absolutes.”^117 In his rebuttal, Habermas argued that
Henry Thoreau and Martin Luther King “... did not absolutize
their private convictions but rather, appealed to principles in the
constitution.”^118 The connection between publicness and legiti-
macy, Habermas explained, follows the Kantian intuition that gen-
eral principles derive their validity from the fact that they could be
freely assented to by all those affected. The “unusually high legiti-
mation claim” of the modern constitutional state (Verfassungsstaat)
is that it is based on free recognition of its normative qualities. “The
state can only expect legal obedience if, and insofar as, it relies on
principles worthy of recognition, in whose light then, what is legal
can be justified as legitimate.”^119 The legitimacy of legality depended
indirectly on its quality as a publicly recognizable norm.
Habermas argued that Thoreau and King did not “absolutize”
their private convictions but rather claimed valid constitutional
principles as the source of the legitimacy of their acts. According
to jurist Martin Kriele, Dr. King did not attempt a juristic justifica-
tion for civil disobedience; he never said that the police should not
defend the laws or that the judges should not apply the criminal
laws. By accepting the legitimacy of legal sanctions, King high-
lighted the discrepancy between positive law and moral injustice,
but from the perspective of fidelity to a higher law: the morality of
natural law. Dr. King’s citations from St. Thomas Aquinas in his
“Letter from a Birmingham Jail” illustrated this feature of King’s
(^115) Ibid. Also see Helmut Simon,“Fragen der Verfassungspolitik,” in Glotz,
Ziviler Ungehorsam, 99–107.
(^116) Habermas, “Testfall,” 35.
(^117) Christian von Krockow, “Die Versuchung des Absoluten,” Die Zeit
(September 2, 1983 ). Cited in Habermas, “Testfall,” 44. See Kriele,
“Widerstandsrecht in der Demokratie? Über die Legitimität der
Staatsgewalt,” in Frieden im Lande, 43.
(^118) Habermas, “Testfall.”
(^119) Ibid.