200 Habermas: An intellectual biography
“ideal judge” is a less reliable bulwark of democracy than an “open
society of interpreters of the constitution.”^109 Habermas’s firm
objection to the notion that judges and professional jurists should
monopolize the interpretation of the constitution was a view aug-
mented by his experience in the constitutional debates of 1989–91.
But it also reflected his deep reservations about the democratic defi-
cit in the application of the philosophy of rights foundationalism,
reservations so deep that they threaten to eclipse recognition of the
substantial contributions made by that jurisprudence to the liberal-
ization of West Germany’s political culture.Habermas’s procedural theory of law and democracy took
shape in two distinct political contexts and bears the traces of each.
Sedimented within the theory is a mood and a tempo: a Habermas
who was on the offensive, as it were, in the pre-We n d e period, from
1984 until the fall of the Berlin Wall in November 1989. In that
period, he proposed the notion of a self-revolutionizing Rechtsstaat,
a notion that reconstructed Western Marxist concepts of utopia and
revolution. Viewing the constitution as an unfinished and infinitely
revisable project rather than a fixed inheritance was Habermas’s
answer to a question with a long pedigree in German history: how
to turn the Rechtsstaat from an object only a republican out of reason
(Vernunftrepublikaner) could love into an anchor of national identity.
Only then could a leftist in the Federal Republic finally embrace
the constitutional state as the ne plus ultra of German politics,
Habermas concluded.
But Habermas’s mature political theory is also imprinted with a
second set of historical experiences: the revolution of 1989–90 and
the process of German reunification, completed in 1991. Initially, he
viewed the revolution of 1989 as a threat to the emerging progres-
sive majority he hoped would furnish the constituency for his vision
of radical reform. The potential illiberalism of the East German
citizenry threatened to undermine the “mature” political culture
Habermas had nurtured in the West. A tension surfaced between
Habermas’s republican convictions and his liberal anxieties, which(^109) Habermas, BFN, 223. See Dworkin. Habermas adopts the phrase from the
chapter of that title in Peter Häberle, Die Verfassung des Pluralismus: Studien
zur Verfassungstheorie der offenen Gessellschaft (Königstein/Ts:Athenaüm,
1980).