168 Habermas: An intellectual biography
with itself. Thus Habermas concluded that there could be no formal
“legal right” to civil disobedience: “The sense of the law and the
existence of legal procedure must remain intact. It follows that civil
disobedience cannot be legalized as such.”14 4 Legalization would
collapse moral legitimacy into positive legality. By maintaining the
tension between legality and legitimacy, however, the practice of
civil disobedience could become the marker for Germany’s matu-
rity. Secure enough to tolerate the “space in-between” – the moral
ambiguities created by historical change – the polity could become
“mature.” At the same time, Habermas conceived this maturity not
only conservatively as an achieved state but also as the precondi-
tion of future growth. It was to be not only the “touchstone” of its
maturity but the “pacesetter” of its evolution too. Criminalization
and legalization of civil disobedience were equally destructive of the
Rechsstaat’s “paradoxical task” and its “nonidentity.” Civil disobe-
dience rightly understood was the signature practice of a mature
political culture because in it the paradoxical character of modern
law is performed.
Habermas was, in the mid-1980s, engaged in a series of strug-
gles over German national identity. But his greatest contribution
to the resolution of West German identity was to describe it in
terms of a series of nonidentities. West Germany did not need to be
anchored in the West through an unambiguous friend-enemy logic
of We s t bi n d u ng, nor in the terms of older German nationalisms. For
Habermas, German identity was, like modernity and the Rechtsstaat,
an unfinished project. It is remarkable how the terms he used to
describe “modernity” and the Rechtsstaat so closely resemble one
another. Habermas’s account of the Rechtsstaat puts great emphasis
on its fallible, revisable character:
The history of the development of basic rights in Europe is best
understood as the history of a learning process. Who will claim
that this learning process is at an end? Even today, we need not
consider ourselves merely its lucky heirs. From this perspective,
the Rechtsstaat appears not as a closed structure but rather, a fragile
undertaking.^145
The civil disobedience campaigns of the early 1980s were the
crucible of this realization. Habermas saw the Rechtsstaat as a kind of14 4 Habermas, “Testfall,” 51.(^145) Ibid., 39–40.