196 Habermas: An intellectual biography
of universality required to justify a universal point of view.”^97 The
factors that made Habermas nervous about the “thickness” of eth-
ical life are accurate, but Habermas’s anxieties also have a more
proximate historical explanation.
Habermas’s insistence on a strict distinction between norms and
values responds to the hegemonic discourse of common “values”
introduced by the post–World War II Federal Constitutional Court
as a means of integrating West German society. Its so-called value
jurisprudence was dominant from the early 1950s through the early
1970s and was shaped decisively by the Weimar-era writings of jurist
Rudolf Smend, as discussed in Chapter 2. In a neglected section of
BFN entitled, “Norms vs. Values: Methodological Errors in the Self-
Understanding of the Constitutional Court,” Habermas put forth a
strongly worded critique of value jurisprudence. Smend’s strand of
legal theory and the practices of the postwar Federal Constitutional
Court it inspired are the concealed historical referent that animates
Habermas’s rigid insistence on strict binary distinctions between the
moral and the ethical, the right and the good, and norms and values.
By conceiving of fundamental rights as “basic values” that
expressed a social consensus on the notion of “the good,” Smend’s
value jurisprudence elevated the highest West German court to a
position of political power that was, in Habermas’s view, beyond
the reach of any democratically legitimated legislator. Habermas’s
efforts to theorize human rights and popular sovereignty as co-orig-
inal thus are simultaneously a critique of the West German practice
of value jurisprudence, a practice that appeared to him to enshrine
human rights at the expense of the democratic sovereign.
Leading German scholars disagree as to whether value juris-
prudence has had any impact on German jurisprudence since the
early 1970s. Ingeborg Maus, a political scientist at the University of
Frankfurt, was an integral member of the legal theory group that
Habermas organized to meet regularly from 1985 –90. Maus finds
in the Federal Republic, but also in advanced democracies generally,
“... an overwhelming consensus that today’s societies should not so
much be integrated through the law but by means of higher order
‘material’ values.”^98 But one reviewer of BFN claimed:(^97) Ibid., 1141.
(^98) Ingeborg Maus, “Liberties and Popular Sovereignty: On Jürgen Habermas’s
Recon struction of the System of Rights,” Cardozo Law Review, 17:4–5 (1996),
830.