Resistance

GERMAR RUDOLF, RESISTANCE IS OBLIGATORYFrankfurt Philosopher Prof. Dr. Jürgen Habermas stated in his contributionto the forums, among other things: 220“[…] the protest has to be directed against well-defined cases ofsevere injustice; the possibilities of promising legal redress have tobe exhausted; and the activities of disobedience must not take on ascale impeding the functioning of the constitutional order.”Habermas clarified that private convictions may not be considered asabsolute, that is to say they may not be the highest guideline of such aprotest, “but that existing constitutional principles must be claimed,”and by so doing he referred to Henry Thoreau, whom I have just quoted,and to Martin Luther King. 221Finally Habermas stated about governmental suppression of civildisobedience: 222“But that state under the rule of law which prosecutes civil disobediencelike a common crime gets onto the slippery slope towardsan authoritarian legalism.”Another contributor to this SPD forum was Ralf Dreier, who at thattime taught general theory of law at Göttingen University. With referenceto a decision of the German Federal Constitutional High Court(Bundesverfassungsgericht) about the prohibition of the CommunistParty of Germany, Dreier states that there is a “right to resist against anevident regime of injustice,” as it is laid down in article 20, paragraph 4,of the German Basic Law, as well as a “right to resist against individualor presumed unconstitutional acts,” although the Constitutional HighCourt did not elaborate any further on this aspect. 223Dreier moreover quotes the opinion of the former judge at the GermanConstitutional High Court W. Geiger, who, in a contribution to abook entitled Conscience, Ideology, Resistance, Nonconformism, 224 hadaffirmed the right to resist unconstitutional acts of government agencies,if legal redress against it has either been impossible or unsuccessful.This position is a minority opinion, however. 225220 Jürgen Habermas, “Ziviler Ungehorsam, Testfall für den demokratischen Rechtsstaat,” in: PeterGlotz (ed.), Ziviler Ungehorsam im Rechtsstaat, Suhrkamp, Frankfurt on Main 1983, p. 34; referenceto John Rawls, Theorie der Gerechtigkeit, Frankfurt am Main 1975, p. 401; Engl.: ATheory of Justice, Harvard University Press, Cambridge 1971/2005.221 Habermas, ibid., p. 44.222 Ibid., p. 51.223 Ralf Dreier, “Widerstandsrecht und ziviler Ungehorsam im Rechtsstaat,” in: P. Glotz, ibid., p.57; BVerfG 5, 85 (376f.).224 Willi Geiger, Gewissen, Ideologie, Widerstand, Nonkonformismus, Munich 1963, pp. 705-712.225 Peter Glotz, op. cit. (note 220), p. 58.187