70 Habermas: An intellectual biography
but used it for a socialist rather than a statist and capitalist end.^54
Habermas thus combined positions from the legal left and right in
a unique synthesis. Specifically, he borrowed the insight that the
welfare state’s class-specific measures had rendered the classical lib-
eral insistence on the “generality” of the legal norm a fiction. While
they had taken this trend as indicative of the need to concentrate
powers in the executive branch, Habermas considered the break-
down of the traditional separation of powers empirical support for
his theoretical preference, namely, that the legislative branch should
rule supreme.
Habermas’s appropriations from the Abendroth and Schmitt
schools yielded an entirely original synthesis. In Forsthoff’s writ-
ings on the welfare state and administrative law, Habermas found
an expert witness to the breakdown of the separation of powers
in general and the state-society distinction in particular. With
enabling laws and supplementary legislations, the legislator handed
over powers to administration. Thus legislation and administra-
tion, deemed separate in Montesquieu, began to appear indistinct.
If the line between state and society was becoming ever blurrier,
then the idea that a private, prepolitical sphere clearly could be
demarcated from a public one was equally fictitious. As Habermas
concluded in “On the Concept of Political Participation,” when “...
organized interests exert influence on the organs of state... [s]ocial
power is eo ipso political.”^55 Social law, he had learned from reading
the German experts in constitutional law, was neither public nor
private. Habermas’s initial insight in Students and Politics – “Fused
into a single functional complex, the new law reveals the face of the
future”^56 – was amplified in his Transformation: “Between (state and
society) and out of the two... a repoliticized social sphere emerged
to which the distinction between ‘public’ and ‘private’ cannot be
usefully applied.”^57 On the basis of Forsthoff’s reading of the “defor-
malization of law,” Habermas concluded that a unified state-society
had arrived. What remained was to recognize the already- politicized
character of the social sphere.(^54) Compare Kennedy, “Carl Schmitt and the Frankfurt School.”
(^55) Habermas, Student und Politik, 22.
(^56) From Students and Politics. Cited in Jean Cohen and Andrew Arato, Civil
Society and Political Theory (Cambridge, MA: MIT Press, 1990), 247.
(^57) Habermas, Strukturwandel, 226; Transformation, 142.