Habermas and Basic Rights
Matthew G. Specter’s groundbreaking Habermas: An Intellectual Biography (2010) maintains that Jürgen Habermas’s greatest contribution to the ‘liberalization and Westernization’ of postwar Germany was ‘the sustained manner in which he recast German political and legal thought’.[i] In fact, Specter argues, ever since the publication in 1962 of The Structural Transformation of the Public Sphere, Habermas’s ‘political analysis’ has been ‘framed in the language of German legal theory’ (26). Accordingly, Specter attends to the influence on Habermas’s intellectual development of certain major West German legal debates in the 1950s, such as the debate over ‘whether constitutional principles could be seen as expressions of a higher “natural law”’, and that concerning ‘the interpretation of the basic rights section of the constitution’ (24). In more general terms, Specter considers how the way in which ‘the two spheres – the university and the state – that were intended in theory to play key roles in democratizing Germany’ after World War Two were actually ‘fatally flawed from the outset’, at once ‘provoked Habermas’s political awakening and shaped his initial trajectory’. As Specter observes, for Habermas the ‘central deficiency’ marking the postwar restoration period was ‘the contradiction between the new beginning announced by the Allied occupation forces and the reality of continuities with the Third Reich’ (10). Specter’s study thus considers how ‘redeeming the promise of the Rechtsstaat [state of law] – its validity-claim, to use a Habermasian locution – is an agenda rooted in Habermas’s experience in the 1950s’ (13).
Following on from Martin Beck Matŭstìk’s argument that Habermas ‘invested his lifework in German constitutionalism [Rechtsstaatlichkeit]’ (quoted on 7), Specter seeks to show how German constitutional theory was ‘the decisive influence shaping Habermas’s political thought in the years 1958-63’ (84) in particular. His book cites personal correspondence with Habermas which outlines in detail his early formation by his encounter with debates around the deeply conservative German tradition of constitutional theory and jurisprudence [Staatsrechtslehre], rather than by immersion in the more Marxist political and legal theory of such thinkers as Otto Kirchheimer or Franz Neumann:
‘It is true that I was very much influenced in the late ‘50s by the Weimar Staatsrechtslehrerdiskussion and its aftermath (C. Schmitt, [Ernst] Forsthoff, [Werner] Weber vs. [Wolfgang] Abendroth), but less so by Kirchheimer, [Ernst] Fraenkel and Neumann […] Until I discovered [John] Rawls in the late ‘70s I was nourished in political theory almost only by the German Staatsrechtslehre.’ (quoted on 59-60)
Specter traces how Habermas’s involvement, from the summer of 1957, with the Student und Politik [Students and Politics] empirical research project carried out by the refounded Institute for Social Research in Frankfurt, first ‘led him into the field of legal theory and its Weimar roots’ (31). A fellow young researcher at the Institute, Spiro Simitis, who recently had completed a dissertation under Abendroth, ‘introduced Habermas to the field of constitutional law’. Hence in 1959 Habermas sought out Abendroth in Marburg as sponsor for his Habilitation thesis, which was to expand the introduction Habermas had written for Students and Politics, ‘The Concept of Political Participation’. This work resulted in The Structural Transformation of the Public Sphere, completed in 1961 (and dedicated to Abendroth (32-33)). Specter takes Habermas’s choice of Abendroth as ‘mentor’, contrasting as it does with Habermas’s former time as a student of Theodor Adorno’s in Frankfurt, as ‘a legible trace of his [Habermas’s] discontent with the prevailing dominance of social and cultural theoretical paradigms over political and legal ones at the Institute in the 1950s’ (34).
Habermas’s early writings of course do show the influence of Frankfurt School Marxism such as Adorno’s; of the Critical Theory evolved by associates of the Institute. Habermas’s early work also reflected the peculiar ‘West German intellectual field’ of the 1950s, ‘which was structured by an empirical and positivist political science on the one hand, and a conservative statist constitutional theory on the other’. But, Specter continues, Habermas’s intuition was that ‘what was missing was a combined Critical Theory of politics, the state, and law with a strong normative perspective’ (60). Hence ‘Habermas’s lifelong project of rebuilding the normative foundations of Critical Theory began with Structural Transformation’ (73). Habermas however, as Specter emphasizes, understood that it was not just ‘the positivist cast of American political science and its German imitations’ that had undermined ‘the power of legal norms’ in German intellectual life; the ‘Marxian reduction of law to superstructure’ had worked in that direction too. It was after all from Marx, the Frankfurt School and Abendroth’s leftism that Habermas himself had learned ‘to be sceptical of the Rechtsstaat and its signatures – the separation of powers, the generality of the legal norm – as the political expression of bourgeois class interests’. So if Critical Theory itself was to be renormativized, ironically for Habermas a strong normative perspective could only be reclaimed from constitutional law, which appeared to him as ‘the refuge to which normativity had retreated’ (204-05).
Specter in fact notes what he calls ‘a sustained engagement with and ultimate rejection of the Marxist critique of legality as merely formal and bourgeois’, in the course of Habermas’s developing early thought. This movement accorded with a redemption of principles of the liberal Rechtsstaat. ‘While Habermas’s political writing of the late 1950s contained an orthodox Marxist critique of the liberal Rechtsstaat, a reappraisal of liberal legality was already under way by the publication of The Structural Transformation of the Public Sphere in 1962.’ (16) Specter suggests how this reappraisal was related to the influence on Habermas of the Montesquieu revival of the immediate postwar period, which was signalled by Neumann’s essay ‘Montesquieu’ (1949) and Forsthoff’s 1951 German translation of The Spirit of the Laws [De l’esprit des lois (1748)] (66). Focussing on the generality of the legal norm and guarantees of basic rights, in ‘The Concept of Political Participation’ Habermas asked whether such features of Montesquieu’s liberal constitutionalism – ‘liberal Rechtsstaatlich ideals’, as Specter calls them – actually existed in the contemporary welfare state (67). Specter observes how Habermas followed Neumann’s view that liberal constitutionalism and democracy were antitheses (66), with Habermas arguing that the West German constitution, the Basic Law of 1949 (which excluded plebiscites and referenda), juxtaposed ‘strong guarantees of basic rights’ with ‘the weakest of mechanisms for achieving popular sovereignty’. This perspective on a situation within which, as Martin Drath had argued similarly in 1952, ‘Montesquieu’s idea of representation has defeated Rousseau’s idea of democracy’ (67, quoting Drath), chimed with Habermas’s early, Marxist critique of basic rights as ideological. But in the course of the composition of The Structural Transformation of the Public Sphere this critique subsided in parallel with his reappraisal of liberal constitutional legality, and as Specter underlines, ‘between 1958 and 1961, a dramatic change occurred in Habermas’s view of the fundamental rights guaranteed by the Basic Law’.
Specter quotes from the following passage in The Structural Transformation of the Public Sphere, in which Habermas proposes that, in Specter’s words, ‘rights were not purely ideological but potentially redeemable’.
‘[…] it has to be demonstrated with regard to those basic rights guaranteeing the effectiveness of a public sphere in the political realm (such as freedom of speech and opinion, freedom of association and assembly, and freedom of the press) that in their application to the factual state of the structurally transformed public sphere they must no longer be interpreted merely as injunctions but positively, as guarantees of participation, if they are to fulfill their original function in a meaningful way.’[ii]
Specter maintains that the contrast between rights as ‘injunctions’ and as ‘guarantees’ resembles Isaiah Berlin’s well-known contrast between negative and positive liberties (72, quoting Habermas). But Specter also places the emergence of Habermas’s reconception of rights as positive guarantees within its postwar legal context of the 1958 Lüth-Harlan decision. For the complexity of the Lüth case showed how ‘the jurisprudence of the high court signified the potential of a constitutional state to redeem the promises of the basic rights and, with them, the broader “validity-claim” of the Rechtsstaat ’ (84).
When in 1951 Eric Lüth, Hamburg’s director of information, had called for a boycott of the first postwar film by the filmmaker Veit Harlan, who had been responsible for the anti-Semitic propaganda piece Jud Süss [The Jew Süss (1940)], initially the Hamburg Superior Court had ruled on behalf of Harlan’s film’s distributor that Lüth desist from his call. Subsequently, however, Lüth complained to the Federal Constitutional Court that this lower court decision prohibiting the boycott violated his own basic right to freedom of speech, which was guaranteed by Article 5 of the Basic Law. ‘The Court overturned the judgment of the Hamburg court as an unconstitutional infringement of Lüth’s basic right to freedom of opinion (Meinungsfreiheit)’, Specter noted, before quoting the opening sentence of the Lüth judgment:
‘The basic rights are in the first place defensive rights of the citizen against the state; in the basic rights determinations of the Basic Law are also however an objective value-order, which, as a fundamental constitutional decision is valid and binding on all realms of the law.’ (74-75)
In this statement we find an immediate anticipation of Habermas’s concepts in The Structural Transformation of the Public Sphere: Habermas’s negative ‘injunctions’ echo the judgment’s ‘defensive rights’, whilst Habermas’s positive ‘guarantees’ look back to the judgment’s basic rights posited with reference to an ‘objective value-order’. In order to understand the terminology of the Federal Constitutional Court in the 1950s here, it is helpful to consider what Specter calls ‘the renaissance of arguments from natural law that […] dominated the first half of the decade’ (54). He cites some remarks of Bernhard Schlink’s concerning how jurist Rudolf Smend’s theorization of ‘value jurisprudence’ (Specter) as part of his constitutional theory, lay behind the terminology employed by the Federal Constitutional Court in the Lüth decision. Importantly, Schlink summarized, the Court’s ‘understanding of basic rights as values comprising a system of values […] was rooted in the natural law renaissance of the time’ (80, quoting Schlink). The way in which Smend’s ‘doctrine of political integration through shared constitutional values’ (Specter, 79) backed up the validity-claim of the postwar Rechtsstaat, is suggested by Schlink’s description of basic rights as ‘elements of an objective order, which is to say, they are not merely subjective individual rights but objectively obligate the government to ensure conditions of freedom and equality’ (quoted on 80). The postwar Rechtsstaat itself could be legitimized – identified as source of ‘freedom and equality’ – by being obligated by basic rights as elements of an ‘objective value-order’. Thomas Henne underlined the irony of this situation: ‘an astonishing path: the theories and theses of the antipositivist Smend, genuinely antiparliamentary and antiliberal, served now […] as the keyword for the basic rights jurisprudence of a parliamentary and liberal democracy.’ (quoted on 81)
As Specter points out, Smend derived his understanding of ‘values’ from the thought of his fellow Weimar-era philosopher Max Scheler and his student Nicolai Hartmann; their material value ethics was ‘a variant of natural law’.[iii] Already in 1952, the Federal Constitutional Court could use phrases such as ‘value-bound order’. But significantly, the Lüth Court’s use of the phrase ‘objective value-order’, six years later, ‘meant something different than it had meant for Smend, Scheler and Hartmann’. For ‘by 1958, a retreat from the natural-law renaissance of the first half of the decade was under way; Lüth was its death blow’. The phrase ‘objective value-order’ in fact pointed to the newly textual immanence of values within West German legal thinking of the later 1950s: as Stefan Ruppert has written, ‘”objective value order” was Verfassungsimmanent [immanent to the constitution]’ (81, quoting Ruppert). There was now a developing ‘reliance on the concrete constitutional text’, Specter explains; ‘the value system of the constitution was no longer thought to be anchored in transcendental truths; its “objectivity” referred only to its immanence in the constitutional text itself’ (81). Precisely this textualization and detranscendentalization of the value-order of the Basic Law underwrote how the progressive nature of a Federal Constitutional Court decision of the late 1950s such as Lüth was not simply ironic – given its roots in Smend’s conservative value jurisprudence – but was characterized by a genuine pragmatic openness of legal practice. The turn to textual immanence and the goal of ‘hermeneutic coherence’ (Specter) was accompanied by a transition away from an ‘abstract, crypto-natural law [or] schema of intransigent closedness’ (82, quoting Alexander Hollerbach).
As we saw, Habermas’s reconception of rights as positive guarantees in The Structural Transformation of the Public Sphere reflected the Lüth decision’s positing of basic rights with reference to an objective value-order, four years earlier in 1958. Moreover, this very redemption of the promises of basic rights and of the liberal Rechtsstaat itself depended on an appreciation of ‘basic rights as values comprising a system of values’, which was ‘rooted in the natural law renaissance’ (Schlink) of the early 1950s. Yet, as Specter crucially observes, ‘for Habermas in 1961, the Lüth judgment was not the progressive landmark most of today’s legal scholars would have it be.’ This was on account of his ‘Abendrothian scepticism toward the paternalism of the Federal Constitutional Court’. More significantly, in his 1963 article ‘Natural Law and Revolution’ (in his Theory and Practice (1973)), Habermas ‘takes a view of basic rights more critical than that articulated by the Court’ (82-83). That in the early 1960s he ‘would find it necessary […] to argue against the natural-law grounding of rights’, showed how Habermas ‘must not have grasped the extent to which Lüth marked the end of the natural-law renaissance of the 1950s’ (83). Habermas was tilting at a conservative straw man that had already been dealt its death blow by Lüth.
This is deeply ironic, because his reconception of ‘negative injunctions’ as ‘positive guarantees’ (84) was working in the same direction as the late 1950s transition out of the influence of natural law. The move in legal practice away from a feared ‘intransigent closedness’ (Hollerbach) derived from natural law, in fact paralleled – or foreshadowed – Habermas’s career-long concern with the goal of a democratically-evolving constitution, which Specter describes thus:
‘No more would the constitution function as a moralistic superego for society, setting limits to democracy in the name of natural law or the Cold War. Jurists would no longer monopolize the interpretation of the constitution, and the constitution would be expected to evolve. The state would have to learn to tolerate civil disobedience. The legitimacy of legality would depend on expanded access to the public sphere and a more robust democratic genesis of the laws.’ (205-06)
Yet, paradoxically, the West German natural law renaissance had grounded the very invocation of the objective value-order which enabled the Lüth judgment to model such a democratic freeing-up of the constitution. Specter notes that Lüth determined that basic rights were both subjective, ‘defensive rights’ of the citizen against governmental intrusion, and ‘objective values’ with a ‘radiating effect’ (quoted on 75) on private law. It was only as objective values that basic rights were now held to have modifying, ‘”horizontal” application’. ‘The new dimension opened by the Lüth judgment was that fundamental rights were held to have “horizontal” application, that is, that civil or private law (the provisions of the Bürgerlichen Gesetzbuches) had to be modified by the basic rights.’ (75)
[i] Habermas: An Intellectual Biography (Cambridge: Cambridge University Press, 2010), p. 13 (further references to Habermas are given after quotations in the text).
[ii] The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society, trans. by Thomas Burger and Frederick Lawrence (Cambridge: Polity Press, 1999; first publ. 1989), p. 227.
[iii] Schlink denied the connection between the Court’s use of ‘values’ and Scheler and Hartmann’s material value ethics: see the quotation from Schlink in Specter, p. 197.