Right and Violence: A German Trauma

Author(s): Jürgen Habermas and Martha Calhoun

Source: Cultural Critique , Autumn, 1985, No. 1 (Autumn, 1985), pp. 125-139
Published by: University of Minnesota Press

Stable URL: https://www.jstor.org/stable/1354284

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Right and Violence - a German Trauma'

Jiirgen Habermas

Looking back on the recent "Aktionswoche" of the Peace Movement

in October, 1983, I have mixed feelings, as no doubt many of us
do who are separated by a generation or more of experiences, incen-
tives, and expectations from the young people in the countless affinity
groups that formed the impressive human chains. Never before in the
Federal Republic have so many people taken to the streets for a politi-
cal goal which many of us consider pressing and rational. They did it
with the awareness that, according to polls, they were expressing the
political beliefs of a majority of the electorate. Mixed with this satisfac-
tion is the concern over how the movement will continue. Above all,
there is the concern whether the activists will assess correctly the
measure of their success. Realistically, one cannot expect to prevent
the installation of the missiles, but only to make clear to the conserva-
tive government that further rearmament is no longer to be carried
out. Those who still follow the ever less accountable U.S. government -
if not for military, then for political reasons - will have to try somehow
to break out of the fatal logic of the arms race. In this context, the
Soviets fail to lead the wayjust as much as the Americans. Hence, only a
realistic assessment of the prospects for internal political success can
protect the German peace movement from two dangers - destruction
or splitting, which would have the consequence that the protest would
overstep the fragile limits of civil disobedience.

1. Originally published as "Recht und Gewalt- ein deutsches Trauma," Merkur,

4 Jan. 1984. English translation by Martha Calhoun.

125

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126 Jiirgen Habermas

The peace movement marks a turning point in the political culture

of the Federal Republic: not only does it show an unprecedented mass
mobilization but it has introduced the wholesale practice of civil dis-
obedience in the Rechtstaat. But here too, I have mixed feelings. Eppler,
B611, and Gollwitzer practice non-violent resistance along with thou-
sands of loyal citizens. Their actions at the U.S. base at Mutlangen have
been made into a specific model. This practice gives the German
public, for the first time, the chance to liberate itself from a paralyzing
trauma and to look without fear on the previously taboo question of
the formation of radical democratic consciousness. The danger is that
this chance - which countries with a longer democratic tradition have
understood as a challenge and have integrated productively - will
be passed up. Caught between legal positivism and power fetishism,
many of our jurists are so fixated on the State's monopoly of legit-
imate violence that they put the conceptual and institutional divi-
sion between Right and Violence in the wrong place - exactly at the
point where it must split the political culture of a developed, demo-
cratic community and separate the organs of the State from their moral
and political roots. Until now, the protests of the peace movement
have expressed, in word and deed, the conviction that demonstrative
actions, even if they include calculated breeches of law, must maintain
a symbolic character and may only be carried out with the intention of
appealing to the understanding and legal sensibility of a majority. This
recent practice is modeled on the concept of civil disobedience bor-
rowed from the Americans. John Rawls's Theory ofJustice defines it as a
public, non-violent, but unlawful action determined according to con-
science, which seeks to bring about a change in the law or in govern-
ment policy.
This unique method, which warns by appeal to justice, can only
operate within a constitutional order generally acknowledged as legiti-
mate: civil disobedience is founded on the same principles which
legitimate the constitution itself. In opposition to this view, the presi-
dent of the German Constitutional Court, the government, leading
politicians, and journalists present another opinion which is the domi-
nant one among Germanjurists: that illegal protest is not only punish-
able but also morally reprehensible. They argue that the juridical
concept of nonviolence even excludes coercion in the sense of duress
and the restriction on the freedom of movement of a third party: "the
prohibition of violence is made unequivocal through the laws which

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 Right and Violence 127

encompass it, in particular through the penal laws and the civil, crim-
inal and property laws."2 If, however, the tautology, "violence is vio-
lence, coercion is coercion," is at once the first and last word on civil
disobedience, the substantive question whether the missile installa-
tionjustifies an illegal protest need not even be posed. In that case, the
defining power of the jurists (the authoritarian-legalistic distinction
between Right and Violence) suffices not only to punish engaged
citizens who imaginatively oppose the corrupt mass media; it crim-
inalizes them in a constitutional, political sense. It is only a step from
contempt for the moral-political motivating principles of those who
breech the law to the disqualification of the protestor as an enemy
within the state.

The Neoconservative Civil War Scenario

Today one hears warnings from both types of German Con-

stitutional theorists. The Supplement of Das Parliment (1.10.83) pre-
sents the positions of Claus Arndt and Martin Kriele. Arndt recalls the
American protest movement against the Vietman war where massive
breeches of the law continued for years. Ultimately, the protests con-
tributed to a shift in public opinion and the eventual termination of the
U.S. intervention which was contrary to international law. Amdt stresses
both sides: whereas the protesters generally acknowledged the demo-
cratic legal procedure and took upon themselves the penal consequences
of their actions, the state showed its respect for the motives of the dis-
obedience through a large scale amnesty after the end of the war. "Both
reactions taken together, the punishment and the amnesty, form a
truth and demonstrate the ability of this constitutional state to master
such an individual-societal crisis. We Germans, however, after the stu-
dent revolts... could not come to terms with such a step. Who can
exclude the possibility that this failure made a not insignificant con-
tribution to the escalation of terrorism in the early seventies?"
Arndt's colleague Kriele sees it quite differently. In his contribution
to Frieden im Lande, Kriele not only considers civil disobedience a
criminal action; he equates it with hatred of the constitution. He

2. Joseph Isensee, "Ein Grundrecht auf Ungehorsam gegen das demokratische

Gestez" in Basilius Sgreithofen ed., Frieden im Lande (Bergisch Gladbach: Liibbe,
1983).

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128 Jiirgen Habermas

counts each morally grounded but forceful breech of law as "morally

reprehensible" criminality. He thereby pushes civil disobedience into
a twilight zone. It becomes an integral part of the subversive effort "to
put in place an indirect dictatorship by an elite." Evidently, Kriele
wants to pursue the path adopted by the neo-conservative beneficiar-
ies of the terrorism in the seventies. But today this tactic pushes into
constitutional-political marginality, not a group of students, but rather
vast numbers of young, democratically inclined, loyal, and especially
engaged citizens.
Kriele's contribution to the Parliment crudely copies the well-known
civil war scenario of Schelsky, Liibbe, Rohrmoser and others. He con-
ceives of the resistance against further rearmament as the high point of
a decade-long power struggle. The center of the resistance is formed by
left wing journalists, teachers, theologians, writers, artists, professors,
students, etc. Since the days of the 1948 currency reform (that founded
the BRD), they use every occasion to assert, with subversive methods,
"the claim to a privileged ethical-legal position for the value elite," in
opposition to the elected and appointed representatives of the state.
Naturally, the so-called pedagogues of emancipation are said to be
breeding "an army of dissidents who will take on themselves the risks
of legal sanctions while the generals remain in the background." The
scorn of the "normal, average, typical man and the rejection of demo-
cratic forms of state" go hand in hand, in this "counter elite," with "an
understanding of the absolute claim to authority of the communist
party oligarchy." The immediate goal of this self-appointed elite is the
destruction of the legal consciousness in the people as a whole. They
can hope for success "since the originators of the opposition have
powerful media at their disposal." The basis of this argument concen-
trates on the reversal of the relationship between legitimate state
violence and illegitimate counterviolence. In Frieden im Lande, Kriele
writes: "It has become a question of life and death for our democracy,
whether the final decision rests with the legitimate voice of the State or
with the editorial writers. This is the issue when the courts and the
police decide on the question of tolerating resistance, even when it is
not of a coercive but only of a demonstrative character." More explicit-
ly, Kriele points to a power struggle between the Parliament and the
government, on the one side, and the editorial staffs of the Hamburg
weeklies (Der Spiegel and Die Zeit) or the radio and television stations
which demand investigations of certain decisions of the Federal govern-

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 Right and Violence 129

ment, on the other. According to his argument, a law needs to be

deliberated and accepted in the Bundestag and, where possible, de-
clared constitutional by the constitutional court. Then, continues his
conspiracy theory, there must be further deliberation in certain editorial
boards to determine whether the law acquires not only legal status, but
also whether it will attain social effectiveness. Proof of this accusation
is that Herr Kriele's own revelations - and those of his cohorts
ordinarily appear only in such a "safe" place as the (conservative daily)
Frankfurter Allgemeine Zeitung (FAZ).
My confidence in healthy human intelligence is so unshakable that I
will let the conspiracy theory of the Cologne Professor for Public Law
and General Political Science speak for itself. Anything else would
create the false impression that this mini-drama in which the generals
of the resistance command the civil war of the counter elite was some-
thing one could discuss. Instead, the Professor's imaginary world
should remind us that law and order in the Federal Republic are
threatened today from two sides. The danger comes not only from the
instrumentalism and lawlessness which could overstep the boundaries
of civil disobedience; it comes also from authoritarian legalism, which,
by using the intimidating definitional power of the lawyers, draws the
line between right and violence in such a way that civil disobedience
will be not only be punished but morally disqualified.

Easy Lessons from History

The internal political development of the Federal Republic is still

under the trauma of the legal transition from the democratic state
(Weimar) to the totalitarian Fiihrerregime, that "order" which was recog-
nizable from the outset as an evil regime. Trauma, according to Freud,
is a wound so painful that it must be repressed. Trauma permanently
damages the psychic apparatus so that symptomatic incidents always
arouse an emotional impact and confuse the senses. Electrifying shocks
of this sort form a thickly spun, vibrating web in which the history of
the Federal Republic helplessly flounders. Shocks such as rearma-
ment, the prohibition of the KPD, and the first concentration camp
trials actually undertaken by the Federal Republic; relations with
countries like Israel, Poland, and the Soviet Union; the question of
statutes of limitations for wartime crimes; films like Holocaust and
unspeakable biographies of ministers, judges, professors, etc.... No

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130 Jiirgen Habermas

one can free himself from this irritating climate of opposing insinua-
tions and accusations, not Herr Geissler, not Herr Kriele, and certainly
not I.
In such a climate, which one cannot easily alter, certain occasions
aggravate the trauma in an especially odd way. The extreme forms of
protest at the end of the sixties and, even more, the criminal actions of
the terrorists in the seventies are illustrations. Three strands inter-
twine, almost inextricably, into a knot. First, the conflict flares up be-
tween opponents who, with subjective good conscience and intransi-
gence, feel called upon to extract what is apparently the only correct
consequence. Thus, the conflict arises at that precarious juncture be-
tween right and violence, touching on the most sensitive areas of a con-
stitutional system which was supposed institutionally to seal the break
with the fascist past and act as a protective dike against all enemies of
democracy. Finally, the incriminated actions - whether alleged, or, as
in the case of terrorism, actual - ultimately call into question the state
monopoly of legitimate violence and call forth reactions rooted in a
tradition of belief in the authoritarian state reaching far back beyond
the Nazi regime. The popular surge in the Federal Republic in the
autumn of 1977 could also feed on this tradition. Our neo-conservative
friends are already at work, putting the protest against further rearma-
ment into this same perspective. It would have been better to separate
the conflict over civil disobedience from the German trauma and to
deal with it as it is done in other countries: it has to do with the tense
relationship between the law-and-order guarantee of the state's mo-
nopoly of legitimate violence and the claim to legitimacy of the demo-
cratic legal procedure.
The protest of the peace movement should not be equated with the
traumatizing events of half a century ago. Its spokesmen have made it
clear that they do not wish to, and cannot, ground their opposition in
the right of resistance in the sense of the present Constitution's article
20, paragraplh 4. Hence, they certainly ought to abandon all indirect
references to this type of constitutionality. The Marburg moral theo-
logian, Wolfgang Huber, can still take cover under the weighty obliga-
tion of the Church to "resistance at the right time." However, this
serves only as the occasion for malicious remarks (aimed here at
Gunther Grass) like those ofJoseph Isensee on the "Federal Republic's
readymade role of the supplementary underground resistance." The
argument which the historian, Karl Dietrich Bracher advances against

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 Right and Violence 131

the false use of the past to explain the present problem of resistance is
more convincing. Yet, I am even more astounded by the way he uses
the past to understand the present.
In his essay "the Understanding of Weimar and the Actuality of the
Question of Resistance," Bracher traces the sorry path of the Weimar
Republic from the putsch movements between 1919 and 1923 to the
street fights between 1930 and 1933. He recalls the illusions of the
trade unions, the attacks on the opportunist hesitations of the Socialist
Party leadership, the adaptation of the bourgeois parties, and the self-
isolation of the Communist Party. He also mentions the murders of
Rosa Luxemburg and Karl Liebknecht, Walter Rathenau and Matthias
Erzberger. But, this recapitulation serves as a springboard for the
overly facile conclusion: what came then from the right, comes today
from the left. Bracher's lesson from Weimar is clear: one must prompt-
ly fight "the expansion of extremist potentials ... of the movement."
But does this really mean the peace movement? Whoever opposes
false parallels to the resistance against the Nazi regime should not draw
false parallels between Bonn and Weimar by using a slick left-right
reversal that brings pacifism and fascism under a common denominator.
Bracher extracts a richly instructive citation from the oath sworn by the
group which at this time produced the Erzberger assassins: "I vow, to
the highest leaders of the organization, to render service with resolute,
unconditional obedience ... traitors will be dealt with by the Fehme
(i.e., the secret leadership court)." This may be a parallel to the terrorist
milieu of the seventies - but is it at all related to the milieu of the
citizen initiatives of today? It is surely these people whom Bracher
wishes to instruct with his essay. But if so, he could not be further off
the mark.

German Hobbesianism

The problem of civil disobedience within the Rechtsstaat does not fit
the civil war scenario evoked by some conservatives. No one in the U.S.
considered the problem from this perspective when it became an issue
there in the civil rights movement and the protests against the Vietnam
war. Even if we disengage ourselves from the German trauma, there
still remains in Germany that curiously effective Hobbesianism elabor-
ated in German constitutional theory by Carl Schmitt and which has,
in the meantime, become related to a different type of conservative

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132 Jiirgen Habermas

thought. For example, Isensee, a legal theorist from Bonn, treats civil
disobedience in the Rechtsstaat as a perversion of the right of resistance
because "the monopoly of legitimate violence and responsibility for
peace form the foundation of the modern state - the minimum standard
for every form of state in modern times." He adds to this: ". . . but also
only the minimum standard. The legal obedience which constitutional
democracy requires of its citizens reaches further." After this qualify-
ing statement, one expects an indication of the particularly exacting,
legitimatory principles of the constitutional state. These might be
something like the following: the modern, constitutional state only
demands adherence to the law because it is founded on principles
worthy of acknowledgement. What is legal and what can be justified as
legitimate can be determined in light of these principles. But that is not
what Isensee presents. Instead, he continues: "legality is not simply the
prohibition of bodily injury and property damage, and of public or
private violence in order to provide protection against 'selective' legal
obedience." This is not false, but it is one-sided in an interesting way. If
one takes seriously the idea of the Rechtsstaat, the guarantee of law and
order comes together with the legitimation claim on which its mo-
nopoly of legitimate violence is based. But this implication is not even
discussed in Isensee's account.
At this point Isensee makes reference to a work by Robert Spa
mann, "Moral und Gewalt," which illuminates the complex intellectu
historical background of the selective reading of basic constitutio
principles.3 Hobbes opposed the classical right of resistance bec
the highest state-guaranteed Good - that is, the internal peace
security of the citizens - would be jeopardized if each citizen ultimat
ly had to decide for himself whether a situation justified resista
Instead of this, every form of rule which is effective in establishing
Good (i.e., in enforcing internal peace) should afortiori be conside
legitimate. According to Hobbes, the legality of arbitrary legal p
cedures rests on the monopoly of legitimate violence alone; they
not require any legitimation through legal content. Right is enforce
the same manner as violence - only the monopoly of legitim
violence of the ruler distinguishes state violence from naked violenc
Kant was still so impressed by Hobbes's consideration that he opp

3. Robert Spaemann, "Moral und Gewalt" in Philosophische Essays (Stuttga

Reclam, 1983).

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 Right and Violence 133

the right of resistance on similar grounds. But, Kant also required just
laws from the Rechtsstaat. His fundamental moral principle serves as
the principle of justice: the freedom of will of an individual must be
able to accord with the freedom of others under general norms. Spae-
mann follows this Kantian vein only in those premises which are
characteristic for the German line of Hobbesian constitutional state
thinking. Questions of legitimation must remain unexamined, sub-
sumed under the problem of the guarantee of the legality. This is
because only the violence-monopolizing state can prevent the greatest
evil, n.mely civil war. According to Spaemann, a constitutional state
remains legal even if freedom of speech is abolished, emigration is for-
bidden, and a just procedure for further development of the existing
legal relations no longer exists. According to these meagre criteria,
Spaemann must consider the disobedience of a Martin Luther King -
honored with a national holiday - as inadmissable and morally rep-
rehensible from the perspective of a state which sees such action as a
threat to its monopoly of legitimate violence. The rigid boundary be-
tween right and violence, between state monopolized and naked vio-
lence, permits the general avoidance of questions of legitimation. Such
a theory, inspired by Hobbes, must consider political culture as unim-
portant. For it, where legal order stops, sudden rebellion, if not revolu-
tion, begins. There is no room for an in-between, a political culture,
where, as Hegel would have said, the ethical-moral life of the people is
played out. There is no room for a place where the legitimation beliefs
of the citizens regenerate from moral convictions. This sphere of life is
normatively structured underneath the threshold of legal norm forma-
tion; it is the ground in which the Rechtsstaat is morally rooted. It does
not fall within the vision of German Hobbesianism.
Carl Schmitt has artfully argued that whoever does not respect the
boundary between right and violence (that razor-sharp boundary
which is fixed by the strength of the state's power to define) is classified
as subversive and loses the claim to moral respect. If such a person is
strong enough, he will lift himself from the position of mere revolt to
that of a war-leading party. Carl Schmitt thus has it both ways: an exis-
tential revaluation of a ritualized type of war belonging to the distant
past; and, above all, a relentless discrimination against those who con-
test the defining power of the state - those who, out of their combined
political-cultural experiences, assert rival definitions for what should
be recognized today as "non-violent action." Spaemann aptly brings

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134 Jiirgen Habermas

out Carl Schmitt's point when he clarifies what happens to those who
rebel against the definition of violence as laid down by the monopolists
of violence: "the ground for the seizure of power (Gewalt) can be as fair
as it wants. What the law defines as violence is relativized. The result is
that there is only one justice: the acknowledgement of the enemy as war-
ring party. The ruling authority correctly will look to deny this and to
prosecute rebellion as a crime."
One sees the conceptual constraints imposed by German Hobbes-
ianism. Those who perform civil disobedience place themselves in the
ranks of a rebellion accused of profiting from the morally reprehen-
sible, "dual role as citizen and enemy." A world separates these tra-
ditions of thought from the assertion of the liberal constitutional
theorist Claus Arndt: "We must be always at the same time both citizen
and rebel. Within the Rechtstaat, such a rebellion can surely serve only
as the defense, warning or re-establishment of the life of citizens as a
free and equal community."

Unconditional or Qualified Legal Obedience

The fact of German Hobbesianism explains why there are so many

arguments today that psychiatrists would call tangential responses:
answers to questions which were not posed. The issue confronting us is
not resistance against an illegal state, but rather civil disobedience
within the Rechtsstaat.
One can only understand this civil disobedience if one begins from a
different premise than Hobbes. Normatively considered, a demo-
cratic state is based equally on two ideas: the state's guarantee of internal
peace and legal security for all citizens and the demand that the state
order be freely and rationally acknowledged as legitimate by its citi-
zens. The relationship between these two ideas is strained with regard
to obedience of the law. The one, stressed in Hobbes, demands uncon-
ditional obedience; the other demands qualified - i.e., rational -
obedience to the law. For the one, the state, resting on its monopoly of
legitimate violence, must guarantee the observance of the laws in order
that all persons be able to move equally freely and independently. For
the other, the legitimation of the democratic Rechtsstaat depends on the
way that laws, judgments, and other prescribed procedures are under-
taken. Procedural legitimacy does not suffice for questions of basic
principles. Method and the legal procedure must be justified from

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 Right and Violence 135

principles. The legitimating principles of a constitution must be inde-

pendently acknowledged, whether or not the written law accords with
it. When they clash, obedience to the laws is no longer demanded
unconditionally.
This qualification of obedience to the law is necessary because even a
generally legitimate legal procedure may entail legal injustice in its
particular details. Granted, such procedural decisions will normally be
revised in time, since the Rechtsstaat institutionalizes revision. But his-
torical experience teaches that these legal checks on fallible human
reason and corruptible human nature often function only for a given
legal circumstance. Another picture is suggested from a legal historical
perspective.
Our legal procedure is founded on principles of universality of
values. The embodiment of these principles is understood as a com-
plete translation of this value into the practical world. Norms such as
basic rights, the guarantee of legal procedure, the principle of popular
sovereignty, the sharing of power, the principle of the social state, etc.,
are all formulated at an unavoidably high level of abstraction. They are
to be generally valid always and in the same way for everyone. They are
also to be valid for the other norms which wejudge according to these
criteria. The universal principles remain constant, whereas the histori-
cal circumstances to which they are applied change. In addition to the
morality implied by these basic principles, the morality of cultural life
(what Hegel called Sittlichkeit) also comes into play. It is only in this con-
crete domain that the basic norms can be realized. The learning proc-
esses and experience which concern me lie in this dimension of the
historical realization of the democratic Rechtsstaat.
It is easy to discover the blindness and prejudiced readings which
framed the different national paths of contemporary democracies and
even of old democracies like England or America. This is evident in
such basic issues as freedom of speech, universal suffrage, freedom of
association. If Kant excluded from the right to vote not only women
and day laborers, but also independent workers this was hardly a sim-
ple conceptual mistake. The selective realization of general norms
becomes evident only in the light of altered situations and historical
circumstances. Harsher political struggles and long-term social move-
ments were needed for people to become aware of the unjust, selective
realization of the law. That this constantly interrupted learning process
is by no means at an end today is evident from a glance at the reforms

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136 Jiirgen Habermas

proposed by the social-liberal coalition (SPD-FDP), which are today

threatened under the guardianship of the CSU minister Herr Zimmer-
mann. Previous generations may have convinced themselves, but no
one can be sure today that the project of the Rechtstaat has reached its
goal and that all that remains is to supervise its fortunate legacy. His-
torical experience speaks not only for the systematic prejudice, but
also of established order, of representatives of the state and - god
knows! - of scholarly jurisprudence. Again and again, these genera-
tions retreat from certain historical challenges which must be answered
with corrections orjurisprudential innovations. If the challenges are
not answered, the legitimacy of the legal procedure will no longer be
valid in light of its very own principles.
Because civil disobediance today operates on these same principles,
it must be recognized as a constituent part of the political culture of a
developed democratic community. If the representative constitution
breaks down in the face of a provocation, like the uncontrolled arms
race, the citizens must intercede directly in their role as sovereign and
give notice that corrections or revisions are overdue. The fallibility
essential to the historical realization of universal constitutional principles
- a fallibility from which the elected and appointed representatives
of the state are not exempt - finds its counterweight in the non-
institutionalizable suspicious nature of the citizens of a mature politi-
cal culture. To achieve this, citizens must escape from the (German)
Hobbesian legal consciousness. They must have acquired the sen-
sibility, judgement, and readiness to take risks necessary to recognize
continuing legal infractions of legitimacy and to meet these - when
other remedies are not possible - with the prompt introduction of
civil disobedience.
This is not a blank check for politically motivated disobedience o
the law. Civil disobedience depends on the guarantee of law and order,
since the monopoly of legitimate violence is as constitutive of th
Rechtsstaat as the claim to rational legitimacy. The sense of the law an
the existence of legal procedure must remain intact. It follows that civ
disobedience cannot be legalized as such. Of course, many of the bas
constitutional-legitimating principles on which we can call today ar
already a constituent part of the fundamental law (i.e., the constit
tion). But as positive, legislative law they are valid only insofar as thei
universal value is fully expressed. The issue concerns, thus, the degree
of this full expression. That this conflict can flare up time and again

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 Right and Violence 137

explained by the irreconcilable norms which the organic law (i.e., the
Constitution) itself indicates in its article 20, paragraph 2 and through
the distinction between law and Right in the following paragraph. But
the legal system cannot affirm each contested value while the basic
Constitutional norms take account of the totality of operative laws.
Because of this difference between whole and part, civil disobedience
remains poised between legitimacy and legality. It isjustified in light of
an idea of the Rechtsstaat which is based on its full realization; but it is
not in accordance with positive right as existent within the actual so-
ciety.
The criminal justice system must therefore register this type of dis-
obedience as illegal and prosecute it if necessary. But it is not to be
judged as a tort. The democratic Rechtsstaat would not be identifiable if
it did not recognize that it respects in the rebel a potential guardian of
its own legitimacy - even when it is pointed out that those who act
illegally today may in fact remain in injustice tomorrow.
This restraint can be expected only if civil disobedience - of a sym-
bolic and thus non-violent character, and with the intention of appeal-
ing to a majority - fulfills three conditions. The legal procedure as a
whole must remain intact; whatJohan Galtung (in Vierteljahresschriftfir
Sicherheit und Frieden [Heft 1, 1983]) calls "functional" resistance is not
justified. Furthermore, the disobedient must accept responsibility tor
the consequences of his actions. Finally, it is expected that whatever his
subjective convictions, the rebel will be able to ground his dis-
obedience in acknowledged, constitutional principles.

Abolition of the Fabricated Natural State in Foreign Affairs

These theoretical reflections do not answer the concrete question

whether in the Federal Republic today one can justify breeches of law
as civil disobedience. This discussion has hardly begun. I find myself
in the role of a sympathizer who inclines toward an affirmative answer.
But that has nothing to do with a call to civil disobedience.
The usual objection is that "other remedies are not impossible."
One could retort that the Parliament was forced to conduct a debate on
this vital question only through "pressure from the street." And even
after the debate, it is not clear that the conservative CDU/CSU would
have suspended party obligation for the deciding vote. As for the
courts, should one follow seriously the example of the British anti-

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138 Jirgen Habermas

nuclear movement and bring action against President Reagan and the
U.S. government in the Federal court in New York?
A more serious question is which norms the planned U.S. missile
installation violates. A weak argument here is the affirmed right to life
and safety from bodily injury expressed in the constitution (article 2,
paragraph 2 GG). But those who wish to station the missiles can refer
also to this right. In a democracy, there are situations where both sides
can present good arguments for and against a position. A still weaker
argument refers to the fundamental obligation to maintain peace. But
the Federal government cannot accuse anyone of wishing to damage
this right.
More to the point is Article 25 of the Constitution which treats the
rules of international law as binding. That methods of mass destruc-
tion are contrary to international law is hardly contestable. They are
even more illegal since use of these weapons no longer permits the dis-
tinction between civilians and other participants. Should one be per-
mitted to threaten civilians with these weapons? The Realpolitiker will
call attention to the questionable status of international law and plead
that these basic legal principles can only be realized in verifiable inter-
national agreements. This is the issue in Geneva.
Thoreau took the annexation of California which was contrary to
international law as the occasion for a tax boycott. In retrospect every-
one approves if such precursors of civil disobedience become cele-
brated. Today, the logic of the arms race has created such absurd
relations and risks that the proscription of methods of mass destruc-
tion (as a first step toward the abolition of the scandalous natural state
in international affairs) is a legitimate goal even if one must strive to
reach it through unilateral steps. International law today requires
innovative initiatives since it is founded on the idea of the world of the
European systems of government between 1648 and 1914. The ditf
ficult history of the realization of constitutional law lays bare a long-
term historical perspective where one must see at the same time the
development and the step by step realization of principles of inter-
national law. In opposition to the adolescent ritualization of the extralegal
friend-enemy relationship, one finds the energetic effort to take a first
step toward the legitimation of the natural state between nations. What
can one add?
I would propose to consider (along with the Federal Constitutio
Judge Simon and others) whether the thin cover of legitimacy provid

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 Right and Violence 139

by a simple majority in the Bundestag is sufficient justification for such

important decisions of national security.4 One must keep in mind here
the functional and value stipulations of majority rule which Claus Offe
examined in detail. Majority rule is the royal path of democratic con-
sciousness formation and should remain so. Its legitimation and effec-
tiveness can be maintained only if one applies it in conditions where
one may presume to regulate the processes of consciousness forma-
tion so that rational decisions can still be made when time is pressing
and information incomplete. Irreversible majority decisions are
irrational - they could be wrong. Yes, missiles might be installed and
then dismantled, even if previous experience makes this seem improb-
able. But does this reversibility also apply to matters of underlying
military strategy like the NATO "double decision"? Opponents main-
tain that the U.S. has switched from a defensive to an offensive military
strategy, not in order actually to conduct a nuclear war but to be able to
threaten the Soviet Union with its nuclear advantage. If this new
strategy remains in force only as long as the last one, the plans will
create an age in which human catastrophes ofjudgment can occur due
to mishaps and human failures. The government vigorously contests
this reading of the NATO military strategy. But the symmetry of the
argument cannot exclude the possibility of a fundamental error against
the foundational value of majority rule.
The destabilization of the relation between the super powers and
their (German) allies brought about by the installation of first-strike
(Pershing) atomic weapons and the continuing proliferation of atomic
weapons among smaller powers leaves no alternative but to escape
from the previous logic of the strategy of national security. Inter-
national law must adapt to this new situation. The modern European
state has made internal law and order possible with its monopoly of
legitimate violence. We now need another evolutionary thrust in order
to approach that international law and order which Kant had in mind.
If such an apparently outmoded utopia is not to end in the nightmare
of a world state, it must not be conceived in the form of the (Hobbes-
ian) state which monopolizes legitimate violence.

4. Helmut, Simon, "Fragen der Verfassungspolitik," in Peter Glotz, ed., Ziviler

Ungehorsam im Rechtsstaat (Frankfurt: Surkamp, 1983). Cf. also the essays in this volume
by Rolf Dreier, Jurgen Habermas and Horst Schuler-Springorum.

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