Conclusion 211
authoritarian legalism, a bias toward the state, and an occlusion of
the public sphere. In Chapters 2 and 5 , Habermas’s critical evaluation
of the Smendian strand of German legal tradition was portrayed as
the medium through which he assessed the dangers of welfare state
paternalism and judicial activism by conservative judges.
After 1989, Habermas promoted his procedural version of demo-
cratic theory as a “thin” alternative to a variety of errors of “con-
creteness,” which included the excessive thickness of both Smendian
value jurisprudence and Schmittian statism. Habermas’s proce-
dural reinterpretation of the republican tradition was in large part
designed as a rebuttal of Schmitt’s antirepublican stance. Schmitt’s
theory of a homogeneous nation, anchored in a consciousness of its
past, was the key position against which Habermas defined his pro-
cedural theory. As he asserted in 1996 , “The idea of a procedural,
future-oriented popular sovereignty along these lines renders mean-
ingless the demand to tie political will-formation to the substantive
a priori of a past, pre-politically established consensus among homo-
geneous members of a nation.”^15 Habermas characterized Schmitt as
a figure who conceived the people as a “prepolitical datum,” that is,
who existed before any social contract, and thus failed to appreciate
the significance of the decision to engage in “constitution-found-
i ng pra x is.”^16 Habermas saw himself providing an alternative to
Schmitt’s theory: “In contrast with Carl Schmitt’s account, on this
conception, popular sovereignty and human rights, democracy and
the constitutional state, are conceptually intertwined.”^17 In order to
reach his mature political account of the co-originality of democ-
racy and the rule of law, therefore, Habermas had to navigate and
surmount visions of law and politics that were either too “thick” or
too “thin.”
Over decades of critical encounters, Habermas met the chal-
lenges of Marx and Weber, Schmitt and Smend. His trajectory from
outsider to insider in the history of the Federal Republic should not
obscure from view the significance of his accomplishments in recon-
structing German political and intellectual tradition. Habermas’s
grappling with the theoretical concepts of state, constitution, and
law not only succeeded in transcending tenacious antinomies in
(^15) Habermas, “The Nation, the Rule of Law, and Democracy,” 137.
(^16) Ibid.
(^17) Ibid.