192 Habermas: An intellectual biography
a procedure of lawmaking that begets legitimacy”^82 – implicitly
alludes to two of the most significant theoretical positions in twen-
tieth-century German political or legal thought. By the “formal-
ist error,” Habermas designated the family resemblances he finds
in the thought of Max Weber, Carl Schmitt, Franz Neumann, and
the Schmittian school – despite their fundamental differences, such
as that of the political orientations of Neumann and Schmitt, for
example. By the “moralistic error,” Habermas implicated Rudolf
Smend’s positions. Read in the light of these reflections on German
legal traditions, Habermas’s procedural turn appears to be the fruit
of a passionate effort to eschew what he considered to be the worst
dead ends and wrong turns in German intellectual history. German
liberalism erred in two ways according to Habermas: It was either
too formalistic – denuded of democratic content – or too moralis-
tic – and thereby insulated from democratic discussion.
The root deficiencies of the German liberal tradition lay in the
intellectual history of nineteenth-century German constitutional-
ism, Habermas argued. His republican inclination to value popular
sovereignty over human rights stemmed from his deep investment
in the historical diagnosis of the weaknesses of nineteenth-century
German liberalism. Following the eminent legal scholars Ernst
Wolfgang Böckenförde and Ingeborg Maus, Habermas asserted
that the connection between individual liberty and state power in
the tradition of the nineteenth-century Rechtsstaat tradition was
“too direct.”^83 Habermas traced a tradition from the early nine-
teenth century (Savigny, Puchta, and Windschied) to the late nine-
teenth century (Ihering and Kelsen) to the 1950s in West Germany
(Ordo-liberalism),^84 the defining characteristic of which was that
liberties were conceived as grants of the state. For Habermas, how-
ever, rights attained in this manner were deeply insufficient: Law
that treats rights as “possessions” granted by the state rather than as
something that emerged from citizens’ recognition of each other as
equals under the law is a signature of the German statist approach
to law.^85(^82) Ibid., 135.
(^83) Ibid., 134.
(^84) Ibid., 84–9. Friedrich Carl von Savigny (1799–1861), Georg Friedrich
Puchta (1769–1845), Bernhard Windschied (1817–92), Rudolf von Ihering
(1850–1930).
(^85) Ibid., 88–9.