Conclusion 205
refuge to which normativity had retreated. But the legal commu-
nity was mired in anachronistic and conservative metaphysics: “On
the one side, the guarantee of fundamental rights is the foundation
of constitutionality... On the other side, Natural Law is devoid of
any and every convincing philosophical justification.”^2 Habermas
found himself in the middle of an intellectual Cold War in which
“the one side has taken up the heritage of revolution [and] the other
the ideology of natural law.”^3 Working through these aporia was
Habermas’s task. Transformation records his transition from skepti-
cism to guarded optimism about the liberal idea of a constitutional
order accountable to the public sphere. Habermas reenchanted the
Rechtsstaat for leftists in his own generation sceptical of bourgeois
legality and helped to steer younger generations away from the
temptation of varied “great refusals” – be they of nonviolent strug-
gle or the ideal of deliberative reason in the public sphere.
To steer the left onto the terrain of the Rechtsstaat, however,
Habermas had to equip himself with the tools of the trade, to become
what he once jokingly called a “lay jurist.” The notion that jurists
proper were a kind of modern clergy encodes Habermas’s deep
reservations about viewing jurists and judges as a class of Platonic
guardians. In acquiring the tools of Staatsrechtslehre (constitutional
theory and jurisprudence), Habermas expropriated the intellectual
property of a highly conservative profession. The overwhelming
majority of the West German constitutional lawyers had served the
Third Reich unflinchingly, and there was no process of coming to
terms with the past in the profession. Abendroth was an outsider
among them. Moreover, the Rechtsstaat ideal had a long conservative
pedigree in German history. Under the Kaiser, Rechtsstaatlichkeit
had been disassociated from both the democratic Parliament and
judicial review. In the Weimar Republic, too, the rule of law was
weakened by a conservative judiciary. In the Third Reich, the ideal
had been bastardized, drained of all sense.
In retrospect, we can see Habermas’s intellectual project as a kind
of grand bargain proposed to the German intellectual public: If the
left would come to the Rechtsstaat, the right would come to accept
the “internal connection” between the Rechtsstaat and democracy.
No more would the constitution function as a moralistic superego
(^2) Habermas, “Natural Law and Revolution,” 113.
(^3) Ibid.