194 Habermas: An intellectual biography
since t he 1880s a crisis t hat t hreatened t he legit imacy of law. “Wit h
his distinction between ‘formal’ and ‘material,’ Weber shaped
the relevant discussion up to the present day – and in my opin-
ion steered it in the wrong direction,” Habermas wrote in a 1986
sketch of his emerging legal theory.^91 “German jurisprudence per-
ceived this long-standing process (of the social transformation of
law) which dissolved the classical unity and systematic organization
of the only legal order that appeared rational, as a ‘crisis of law.’”^92
The formalist error consisted in an overly literal interpretation of
the concept of law’s “generality,” to which Habermas admitted that
he also had succumbed. In Germany, a narrow interpretation of
the meaning of the generality of statute prevailed, according to
which a law “... [owed] its legitimacy not to the democratic proce-
dure [behind its genesis] but to its grammatical form.”^93 Habermas
renarrated his past error as a “semanticist abstraction” for which
Weber and the tradition of German liberalism were ultimately
responsible. To understand why Habermas was so passionate about
such a seemingly obscure point – how Weber’s dichotomy between
legal “form” and legal “material” had produced a crisis for German
law – one needs to consider the broader context to which Weber’s
“formalist error” referred.
That context was the 1950s debate over the constitutional legiti-
macy of the West German social welfare state discussed in Chapter
2. Habermas was drawn into the debate, adopting Forsthoff’s cri-
tique of legal deformalization as an integral part of his critique of lib-
eral democracy in his Students and Politics (1961) and Transformation
(1962). Buried in a footnote is Habermas’s acknowledgment that by
doing so, he had failed to “escape” the influence of this tradition:
In Germany the discussion over the generality of legal statutes is
still colored by the extreme views found in Carl Schmitt’s 1928
Verfassungslehre [Constitutional Theory]. This view became influ-
ential in the Federal Republic through the direct efforts of Forsthoff
and indirectly through Franz Neumann. I did not escape this influence
myself at the end of the 1950s.^94(^91) Habermas, “Recht und Moral,” 543.
(^92) BFN, 389–90. Compare Habermas, “Further Reflections on the Public
Sphere,” 435.
(^93) Habermas, BFN, 189.
(^94) Ibid., 563–4, n.75 (emphasis added).