Recasting Democratic Theory, 1984–1996 193
The weakness of German constitutional law stemmed from the
hegemonic influence of its civil law, Habermas argued. The doctri-
nal history of civil-law jurisprudence from von Savigny to Kelsen
“... has been decisive for the understanding of law [in Germany]
in general.”^86 By this, Habermas meant that it illustrates the per-
sistent fallacies of German statism. Habermas highlighted a major
problem with the tradition of German “liberalism” as embodied in
the tradition of civil law. It “... got started with the idea of morally
laden individual rights which claim... a higher legitimacy than, the
political process of legislation.”^87 Even the Ordo-liberalism associ-
ated with Adenauer and Erhard’s social-market economy, of which
Habermas had been critical in the 1950s, seemed an expression of
these same distortions: Ordo-liberals “only rehabilitated [an] indi-
vidualistically truncated understanding of rights.”^88 As discussed
in Chapter 1 , it was the Ordo-liberals associated with the Freiburg
school that helped drive the Social Democratic Party (SPD) to the
right at Bad Godesburg and resulted in Abendroth and Habermas’s
exit from the SPD.
German liberalism also erred by its excessive formalism.
At the feet of one of the most important German liberals, Max
Weber, Habermas placed a substantial burden: the German legal
profession’s unproductive and undemocratic obsession with legal
“deformalization.”^89 The formal equality of subjects under law was
compromised, Weber had noted in Economy and Society, by statutes
that treated different social classes unequally.^90 Weber’s legacy,
Habermas asserted, was a strict legal formalism that caused its
adherents to discern in the policies of every German welfare state
(^86) Ibid., 84 (emphasis added).
(^87) Ibid., 89.
(^88) Ibid., 87 (emphasis added). ORDO: Jahrbuch fur die Ordnung von Wirtschaft
und Gesellschaft was a journal first published in May 1948 and was edited by
economists Friedrich Hayek, Walter Eucken, Franz Böhm, Wilhelm Röpke,
and Alexander Rüstow.
(^89) Ibid., 389. “A trend already bemoaned by Max Weber, that fully asserted
itself... only at the end of W WII.” Habermas links Forsthoff and Weber
closely. See Habermas, “Recht und Moral” (a German translation of
the Tanner Lectures of 1986), reprinted in idem, Faktizität und Geltung,
541–99: “Forsthoff [merely] continued Weber’s critique with legal dogmatic
means.” For the English version, see The Tanner Lectures on Human Values,
vol. VIII (Salt Lake City, UT: 1988), 217–80.
(^90) See Max Rheinstein, ed., Max Weber on Law in Economy and Society [1925],
trans. Edward Shils (Cambridge MA.: Harvard University Press, 1954).