Habermas’ Reconstruction of West German Post-War Law and the Sozialstaat Controversy

Abstract

The ostensible “zero-hour” founding of the Federal Republic of Germany after the Second World War compelled its legal theorists and practitioners to confront in an apparently rather abrupt manner the predicament of law in an industrial democracy. While other Fordist-democratic regimes were able to adapt somewhat gradually to the consequences of an increasingly interventionist state in the twentieth century, or even manage to conceal such consequences, West Germany confronted head-on these realities and their legal ramifications for the rule of law. Two aspects of this historical change are a novel relationship of state and society, on the one hand, and of governmental branches, on the other. The traditional nineteenth-century conception of the rule of law, or Rechtsstaat, understood the law as a set of clearly defined rules that kept state and society, and different institutional branches of government, apart from each other in a way that preserved individual freedom. Law put into the service of the twentieth-century Sozialstaat, so the argument goes, suffers a crisis of indeterminacy as state activity blurs the distinction between state and society, as well as among legislative, executive, and judicial institutions. As socio-political arrangements become “muddled,” so too do the rules designed to coordinate them.

Paper prepared for presentation at the conference on Ideology in Postwar Germany, Remarque Institute, New York University, April 30-May 1, 1999. Portions of this essay are drawn from McCormick 1999a.