Civil Disobedience and Modernity, 1978–1987 167
of the citizens regenerate from moral convictions. This sphere of
life is normatively structured underneath the threshold of legal
norm-foundation; it is the ground in which the Rechtsstaat is mor-
ally rooted.^141Habermas thus envisioned the relationship between legality and
morality along a vertical axis with legality above and morality below.
With his choice of the organic imagery of legality being “rooted”
in morality and thus furnishing its “ground,” Habermas thought he
had solved the paradoxical task of the Rechtsstaat:
The paradox of the Rechtsstaat is that it must embody positive law,
but also stand for principles which transcend it, and by which posi-
tive law may be judged. The Rechtsstaat, wanting to remain iden-
tical with itself, stands before a paradoxical task. It must protect... against injustice that may emerge in legal forms, although this
mistrust cannot take an institutionally secured form. With this idea
of a non-institutionalizable mistrust of itself, the Rechtsstaat projects
itself over the entirety of its positive law.^142
Habermas claimed that the paradox can be resolved by citizens of
a “mature” political culture because they alone show the “sense of
judgment” necessary to decide how to act in relation to unjust laws,
or majority decisions, with which they disagree. Civil disobedi-
ence was thereby figured as a necessary component of a successful
Rechtsstaat.
Habermas thus arrived at a new formulation of an old conviction,
namely, that democracy has moral foundations. Now civil disobedi-
ence became the privileged site from which to know them. This was
an updated vision of the classical doctrine of politics that had been
obscured, Habermas had argued around 1960, by the elite theorists
of democracy. In the place of the closure afforded by a revolutionary
proletariat – what philosopher Georg Lukàcs had called the “identi-
cal subject-object” of history understood in the Hegelian-Marxist
sense – Habermas substituted the dissenting citizen.^143 Through
correct insight into the relationship of legality to legitimacy, the
dissenting citizen perceives that the Rechtsstaat is “nonidentical”
(^141) Habermas, “Recht und Gewalt,” 109 (emphasis added).
(^142) Habermas, “Testfall,” 39 (emphasis added).
(^143) See Georg Lukàcs, History and Class Consciousness: Studies in Marxist
Dialectics, trans. Rodney Livingstone (London: Merlin Press, 1971 ).