Recasting Democratic Theory, 1984–1996 191
STATISM AND ITS CRITICS: THE WEST GERMAN EXPERIMENT
WITH LAW AND DEMOCRACY
While the ostensible objective of BFN was to dissolve tenacious
antinomies in Western political thought – the rule of law and
democracy, human rights and popular sovereignty, public and
private autonomy – it also distilled lessons Habermas drew from
German and West German historical experiences with statism.
Because he did not explicitly foreground it in the architecture of
the work, Habermas’s reading of recent German intellectual history
requires careful reconstruction before its shaping influence on his
political theory can emerge. What remains in the text implicit and
overshadowed by his theoretical argument is that Habermas’s read-
ing of German history strongly conditioned his thought.
According to Habermas, for two centuries Germany’s legal
intellectuals repeatedly failed to address – and thus exacerbated –
the chronic problems of a German statism unbound by democ-
racy. While residual elements of German statism persisted after
the creation of the West German republic in 1949, the long-term
trend was toward an erosion of this view of the state and matura-
tion of a countervailing civil society. Habermas’s critical explora-
tion of the intellectual history of German legal theory focuses on
two figures whose thought seemed to him most symptomatic of
the problem of German statism: sociologist Max Weber (1864–
1920) and Rudolf Smend (1882–1975), the Weimar jurist whose
writings were a dominant influence on West German jurispru-
dence in the 1950s. Weber’s formalism and Smend’s moral a pri-
orism were the two theoretical positions that most exacerbated
the legacies of German statism in West Germany. The theory
articulated in BFN is the precipitate that remained, as it were,
after Habermas pressed German intellectual traditions through
his proceduralist filter.^81
It is a recurring argument of this book that many of Habermas’s
most challenging abstractions conceal hidden historical referents;
once decoded as references to German historical experience, the
most cryptic become revelatory. The following statement, for exam-
ple – “The law receives its full normative sense neither through its
legal form per se, nor through an a priori moral content, but through
(^81) For Habermas’s use of this metaphor, see Habermas, BFN, 99.