198 Habermas: An intellectual biography
amplify Habermas’s concern that government might “instrumen-
talize” basic rights for its own objectives and prize efficiency over
legitimacy. In today’s constitutional adjudication, she warned:
[W]e find the prevalence of a “basic rights policy” based on a logic
that suggests action by the state is legitimate if it is efficient in
enforcing rights instead of being based on a democratic consen-
sus. This version of rights taking on a life of their own is a typical
feature of the paternalistic social welfare state that is immunized
against a democratic constitutional process... and ordains rights
from above by an expertocracy.^104
Maus’s critique of rule by experts, be they welfare state admin-
istrators or judges, furnishes the context we need to understand
Habermas’s otherwise surprising claim that “[h]owever well
grounded human rights are, they may not be paternalistically
foisted, as it were, on a sovereign.”^105 It may seem counterintui-
tive that Habermas criticizes and fears the “isolation” of individual
rights from democratic majorities, which for many U.S. theorists is
central to the practice of American liberal democracy. Moreover,
the prominence of the basic rights catalogue in the constitutions
of both the Bonn and Berlin Republics and their unalterability (the
so-called eternity clause) reflect the postwar consensus of German
political and legal elites that rights were inviolable, sacred, and cen-
tral to the meaning of a secure liberal constitutional order. This
position is known as “rights foundationalism.”
But the lesson Habermas drew from German history about the
relationship of rights to democracy is a very different one: that the
fundamental idea of democracy is autonomy. Against rights founda-
tionalism, Habermas takes the position that the addressees of law
also must be its authors: “It would contradict [the idea of autonomy]
if the democratic legislator were to discover human rights as though
they were (preexisting) moral facts that one merely needs to enact
as positive law.”^106 Habermas was critical of value jurisprudence(^104) Maus, Liberties, 831. Maus takes the argument much further than
Habermas, however. She explicitly compares value jurisprudence to the
National Socialist claim to replace the formalistic rule of law with a rule of
justice (Gerechtigkeitsstaat). See Liberties, 829–30.
(^105) Habermas, “Internal Relation of Law and Democracy,” in idem, Inclusion of
the Other, 260.
(^106) Ibid., 260. Compare “Postscript,” in BFN, 454.