Recasting Democratic Theory, 1984–1996 197
The [Federal Constitional Court’s] value orientation is a myth.
It is true that between the 1950s and 1970s [it] discussed funda-
mental rights as being values, and as forming a value-system.
But it never meant this in a philosophically ambitious sense, in
the sense of a material value ethics developed by Max Scheler or
Nicolai Hartmann.... Since the Federal Constitutional Court’s
value-orientation is a fiction, Habermas’s confrontation of prin-
ciples as norms and principles as values must also miss the reality of
constitutional adjudication.^99Habermas’s response was brief: “Since I did not invent this interpre-
tation but took it from the numerous writings of prominent scholars
and even members of the Court itself, I would rather leave this to
legal scholars to settle.”^100 Whether or not Habermas is right about
the intellectual filiations of the German constitutional court is less
important here than the fact that Habermas believed it to be so.
In “the wording and tenor” of some important opinions of the
Federal Constitutional Court, Habermas detected a tendency to
treat the Basic Law “... not so much as a system of rules structured
by principles, but as a ‘concrete order of values.’ ”^101 Habermas’s
primary concern was that by treating constitutional principles as
“values” rather than as “norms,” value jurisprudence opened a door
to “the talk of balancing interests or weighing values [Güterabwägung]
which is common among lawyers.”^102 Fr o m he r e , H ab e r m a s b e l ie v e d ,
a critical line was crossed: “Anyone wanting to equate the constitu-
tion with a concrete order of values mistakes its specific legal char-
acter; as legal norms, basic rights are, like moral rules, modeled
after obligatory norms of action, and not after attractive goods.”^103
Habermas worried that if rights were conceived as valuable goods,
they could be weighed, balanced, and possibly rejected. This kind
of relativization of the status of basic rights could lead the consti-
tutional state to deteriorate into rule by the administration and
judiciary, a concern of Habermas’s since his first work in political
theory in the late 1950s. The reflections of Ingeborg Maus echo and
99 Bernhard Schlink, “The Dynamics of Constitutional Adjudication,” in
Cardozo Law Review, 1234.
(^100) Habermas, “Reply to Symposium Participants,” Cardozo Law Review,
1477–78.
(^101) Habermas, BFN, 254, 258.
(^102) Ibid.
(^103) Ibid., 256.