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A History of Public Law in Germany 1914–1945$

Michael Stolleis

Print publication date: 2004

Print ISBN-13: 9780199269365

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780199269365.001.0001

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Revolution, Weimar Constitution, and Versailles

Revolution, Weimar Constitution, and Versailles

Chapter:
(p.45) 3 Revolution, Weimar Constitution, and Versailles
Source:
A History of Public Law in Germany 1914–1945
Author(s):

Michael Stolleis

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199269365.003.0003

Abstract and Keywords

Nearly everything that aroused the passions in German state law and international law during the Weimar period revolved around the three issues of Revolution, Weimar Constitution, and Versailles. Concretely, this chapter talks about the end of the monarchies and thus also of the supreme ecclesiastical authority of Protestant regional sovereigns, of the transition to parliamentary democracy and the ‘party state’, and of the humiliation of the nation at the hands of the victorious powers. The ‘November revolution’ and ‘Versailles’ remained traumatic experiences that could not be absorbed and digested in only a few short years. Added to this was the fact that jurists with a predominantly bourgeois disposition experienced the new republic as insecure and unpleasant. The inflation of 1923 threatened the material resources of life. Against this backdrop, it might appear contradictory that the constitution was overwhelmingly accepted and commented upon by scholars of public law.

Keywords:   state law, international law, Revolution, Weimar Constitution, Versailles

I. Revolution

1. The traumas of the Republic

November revolution, Weimar Constitution, Versailles Treaty: nearly everything that aroused the passions in German state law and international law during the Weimar period revolved around these three issues. Concretely, we are talking about the end of the monarchies and thus also of the supreme ecclesiastical authority of Protestant regional sovereigns, of the transition to parliamentary democracy and the ‘party state’, and of the humiliation of the nation at the hands of the victorious powers. The ‘November revolution’ and ‘Versailles’ remained traumatic experiences that could not be absorbed and digested in only a few short years. Added to this was the fact that jurists with a predominantly bourgeois disposition experienced the new republic as insecure and unpleasant. The inflation of 1923 threatened the material resources of life,1 there were coup attempts and strikes,2 the number of political crimes was high,3 and governments turned over rapidly. Parliamentarism remained unloved, especially the ‘party squabbling’. Cultural life was hectic and not to everyone's liking.4 And the fact that the social democrats were governing Prussia, still the dominant state in the Empire, was noted by the average university teacher with some displeasure, even as they had to recognize the stability this produced.5

(p.46) Against this backdrop, it might appear contradictory that the constitution itself and the legal order it entailed was overwhelmingly accepted and commented upon by scholars of public law. Evidently it was possible for the pressure of political discontent and unhappiness to exist alongside professional work. The emotional side might express itself in newspaper articles on the Kaiser's birthday, in speeches on constitution day, or in disparaging remarks about the Republic during lectures. But that didn't prevent individuals who voiced such sentiments from accepting the established law as such, whether or not they deluded themselves with the illusion of their own objectivity when it came to interpreting it.

The separation of political engagement and professional work is one side of the coin. The other is the distinction, drawn by most, between the bond to the monarchy and patriotism toward the ‘Empire’.6 If state law theorists wished to participate positively and constructively in any kind of way, they had to contribute to erecting the new order. One question was on everyone's mind: ‘the problem of creating unity in a country torn by the lost war, a country that still had to negotiate the transition to democracy and in which broad segments of the population were culturally and socially uprooted.’7 This difficult situation did indeed provide a powerful stimulus to the search for a theoretical concept.

What is striking, compared to the relative homogeneity of the conceptual models of state law prior to 1914, is the variety of approaches that emerged. This may be explained in part by the profound rupture caused by the lost war and the revolution. But national humiliation, the experience of a society torn by differences and antagonisms, and inexperience with parliamentary democracy were joined by forces that were at work all across Europe, though perhaps nowhere with more urgency than in Germany: the sense of crisis that accompanied the collapse of the world of nineteenth-century bourgeois values, the subjective experience of the passage of time as rapidly accelerating in the technological age, and the precariousness of private and collective existence, along with the psychological receptivity to all kinds of doctrines of salvation it generated.8

(p.47) 2. The revolution and its consequences

The revolution itself,9 which certainly deserves that name even though basic elements of the German Empire of 1871 remained intact, posed an extraordinary challenge to the theory of the state and to state law. Everything had to be reconsidered: the ‘law-creating power of the revolution’,10 the continuity of the Empire of 1871, the structure and interplay of the traditional institutions in the Empire and the Länder, the system of parties, the relationship between state and society, the basic civic rights. The disappearance of the monarchies, in particular, had destroyed the intellectual reference point and the internal legitimization of many institutions oriented toward constitutional monarchy. The dualistic conception of the constitutional monarchy had rested on the notion of the balance of competing legitimacies. In the revolutionary transition to the sovereignty of the people, all weights and counterweights had to be newly assessed, indeed, they had to be given form in the first place through the process of creating a constitution.

The ‘monarchic principle’, invoked as the central pillar of the state since the final accord of the Congress of Vienna in 1820, collapsed upon itself almost without any resistance in the Empire and the Länder. Contemporaries took note of this with surprise but also a relative sense of equanimity. After the experiences of the nineteenth century, the monarchies—or more precisely, the ruling families and their courtly circles—enjoyed virtually no confidence among the people, having essentially failed to negotiate the transition into the bourgeois and industrial world. They meant nothing to the workers and to large segments of the middle class. Especially the working class, which had, at most, attained a small measure of political participation through the social security system, continued to feel excluded from the political process.11 The politically blind defence of the three-class voting system, the amalgamation of the monarchy with what was regarded as a reactionary Upper Chamber (Herrenhaus) of the Prussian Landtag, and the personal rule of Wilhelm II had caused considerable political damage in Prussia and the Empire.12

(p.48) When the sovereigns abdicated and their potential successors renounced the thrones, everything that had been written since the Congress of Vienna about the intrinsic legitimacy of monarchy and about the ‘monarchic principle’ fell by the wayside. The pivotal reference point of monarchist state theory had been the notion that the monarch formed the centre of the political will within the pyramid of the state, and that the parliaments (chambers of deputies, second chambers) were subordinated, consultative organs charged with watching over the rights of the people and the budget. Later this picture shifted to a dualistic model, though not far enough for theorists to be able to reconnect intellectually with the natural law-based contractual theories of the Enlightenment. The solution to the competition between princely sovereignty and popular sovereignty had been ‘state sovereignty’. The state became a ‘legal person’, the central point of attribution for governmental acts of volition, and the monarch its guiding organ. In this way the theoretical weights in the debates carried on up to the First World War about ‘monarchy as a form of government’13 shifted in the direction of the sovereignty of the people, though the latter were never truly invested with their rights. All these intermediate steps, undertaken in the hope of arriving at a more thoroughly parliamentarized system with a ‘monarchical president’, had now become obsolete.14

But the accustomed constitutional-monarchical system continued to function implicitly; the overwhelming majority of state law theorists—and later also the National Assembly—believed that a strong president would have to fill the vacuum that had been left behind. The primary concern was to establish order in the current political situation, but the dictatorial powers incorporated into the constitution show that there was also some forward thinking about future states of emergency. Certainly, the belief was that parliament—which people had in fact experienced until then not so much as active but reactive—was in no way capable of exercising that leadership role. To put it in positive terms: the plebiscitarian legitimacy of the president also offered ‘the possibility of a new foundation’15 to the civil service and (p.49) the armed forces, the Reichswehr. Contemporaries were hardly aware that this was potentially also a dangerous situation.16

The disappearance of the monarchical tip of the political structure had two other repercussions. First, it destroyed the last remnants of the feudal system and the world of the nobility tied to the courts.17 The nobility was left with the right to its titles18 and social positions it had traditionally occupied, for example in the professional civil service, the diplomatic corps, and the landholding landed gentry. Second, the monarchs in Protestant ruling houses had also been ‘praecipua membra ecclesia’, which meant they exercised sovereignty over the territorial church.19 After 1850 this arrangement, dating from the middle of the sixteenth century, had been shored up in Prussia against misgivings through the creation of the Protestant High Consistory and had been given a special aura. The last Prussian monarch and his wife placed great value especially on this ancillary function of the royal office. The end of the monarchies forced the Protestant territorial churches in and outside Prussia to create new leadership for themselves at the top in the form of bishops or church presidents. That was done everywhere in the first years of the Weimar Republic.20

3. External continuities

As profound as these consequences of the revolution may have been, they tell us little about the overall situation. With the transition to the Republic, the revolution had, so to speak, lopped off the visible tips of the Empire, and even here it had been possible to find forms of what appeared to be a legal transfer of legitimacy by having the office of chancellor pass to Friedrich Ebert and handing over military authority to the Supreme Army Command. Below this level the most important institutions (p.50) of the Empire continued to operate, the networks of leading individuals remained intact, and the established political parties once again contested the election.21

But the institutional structure of the state also remained intact on the level of the Länder and the communities. The federal states, all of which had to deal with their own revolutionary transitions,22 survived as such or were, as in the case of Bavaria, stabilized through outside intervention. The German people, who were used to thinking in regional, usually dynastically defined contexts, found their stage of political activity at this level. Even the revolutionary forces indirectly confirmed the workability of the Empire's federal structures by attacking the power of the state at the level of the Länder That explains why Ebert, who had eliminated the Reichstag, sought the political participation of the Länder as early as the Reich conference on 25–6 November 1918, and later re-established the old Bundesrat as the organ of the Länder Finally, the momentous consultation of the Länder in the creation of the Reich Constitution was a tribute to the existing federal structure.

The second pillar of the old order was the professional civil service. Both the departing monarchs and the new government called upon these civil servants to continue doing their job.23 There really was no conceivable alternative: ‘Managing the pressing administrative tasks and the need for services created by the end of the war and the return of the army, by the food situation and the conversion of the economy, was simply impossible without a professionally trained civil service.’24 Precisely because the members of this class were convinced that legality also gave rise to legitimacy, that is to say, that law and right overlapped under normal circumstances, were they capable of reserved loyalty toward the new state. Whether or not inner reservations about the republic were, in the process, ‘compensated for’ by emphatic objectivity remains an open question. In any event, there can be no doubt that the post-war crisis was managed and normality maintained by the sheer ‘functioning’ of the bureaucracy.25 The same was true for the administration of justice: after the revolution, under the leadership of Rudolf Freiherr von Seckendorff, president of the Reich High Court (Reichsgericht), it took the position, at a plenary session of the High Court, (p.51) that the de facto success of the revolution established the legitimacy of the new law.26

Scholars have castigated the nearly complete takeover of the elites from the Empire,27 the pact with the military,28 and the failure to ‘purge’ the professional civil service as the chief sins of the young Republic, suspecting that these actions and inactions had profound consequences. Later, from their exile, the Social Democrats blamed themselves for taking over the old apparatus of the state in 1918–19, calling it a grave historical mistake.29 These judgements, however, are not verifiable, nor do they possess the ring of plausibility. Anyone who wanted to see a reasonably orderly transition to a parliamentary democracy could not have acted any other way. Of course, whether the new state, after its consolidation, should have pursued a civil service policy that was more resolutely democratic-republican in its orientation is another question altogether.30

Since municipal administrations, especially in the industrial centres, eventually returned quickly to doing their job, the most important lower levels were functional at the beginning of 1919. The thesis of the legal continuation of the Empire that was rapidly advanced at this critical juncture was persuasive. The Empire, as Willibalt Apelt had put it, ‘had not melted down into a unitary state (Einheitsstaat) in the crucible of the revolution’31—and, one must add, municipal self-administration and the professional civil service on all levels guaranteed the state's necessary ability to function.

4. Internal continuities

To all this we must add an intellectual phenomenon that was crucial to the history of public law: the public law theorists who were active in 1919 all thought in state law categories of constitutional monarchy. Before 1914 there was not even the beginnings of a younger group of dissenters who (p.52) would have thrown in their lot entirely with parliamentary democracy. With a few exceptions, university professors remained attached to the traditional categories derived from general state law theory before 1866, from the constitutional law of the North German League, and from the constitution of the Empire. By contrast, the picture was far less homogeneous among non-academic jurists who were engaged in practical constitutional work in the National Assembly and in the Länder parliaments.

Much as it had during earlier turning points in constitutional history (1806, 1866–71), the scholarly treatment of state law fulfilled a kind of ‘bridge function’.32 This time it was not so much the general theory of the state, which had little to offer in this situation, as the ‘tried-and-true’ arsenal of state law concepts that came into play: the dualism of monarchy and popular representation was now repeated in the dualism between the Reich president and the Reichstag; the federal state as a form of government had now been discussed to exhaustion, as had the carefully honed forms of action by the legislative and the executive power (formal and material law, decree, administrative act, subjective public laws, basic rights). If one wants to put a name to it, it was especially Heinrich Triepel who, in one of his major works, brought the state law theory of the Empire to a close and now emerged as the leading figure of public law. He was also typical in so far as he carried out—in himself, so to speak—the methodological remoulding of the still prevailing state law positivism and prepared the ‘quarrel over methods’ (1926–9). In the field of administrative law, which—after Otto Mayer's famous dictum of 1924—appeared to have survived war and revolution unscathed, the consciousness of continuity was even more pronounced. And this consciousness was a fact of historical consequence, even though it would turn out that, in actuality, the notion of continuity was to some extent not true.

The state law and administrative law theorists, who were not part of the leading strata of the Empire in the narrower sense,33 although they stood close to these circles in their habits of mind and sense of belonging, could thus reassure themselves that it was possible to carry on their work in terms of methodology and the basic concepts of state law. That work presupposed seeing the legal person of the ‘state’ as a politically neutral institution committed to the common good, and pushing parliamentary democracy along with the party system to the margin as rather unimportant, accidental phenomena.34

(p.53) II. Weimar and Versailles

1. Hugo Preuß and the creation of the constitution

Already during the war, numerous lectures and newspaper articles by professors of state law had dealt with the transition to a parliamentary system, the dreaded establishment of a ‘military dictatorship’,35 and the questions about the constitutional future all this entailed.36 The theorists who participated in this debate were above all those who were open and receptive to parliamentary democracy (Anschütz, Triepel, Preuß, Jacobi, Stier-Somlo, and others), but they were also joined by Erich Kaufmann, whose sentiments at that time were still nationalist and monarchist.37 Between 1915 and 1919, Max Weber offered continuous commentary on domestic and foreign political events, advocating a stronger link between the government and parliamentary majority, a new law of suffrage, the political participation and economic independence of the citizenry, and the popular election of the future Reich president.38 Now, in the critical phase leading up to the adoption of the constitution, with a new law on suffrage,39 the election itself (19 January 1919),40 and the convocation of the National Assembly in Weimar, interest in constitutional questions rose dramatically. Constitutional theorists and experts on foreign public law were sought out, though the National Assembly (p.54) itself was not a ‘professors' parliament’ as it had been in 1848.41 Participants knew that this time, fundamental decisions of principle were condensed into just weeks, indeed, days. A provisional Reich authority was installed, a Reich president was elected. A new Reich government was formed, a budget was passed, and the Reichswehr was given its temporary structure—in short, the still unified, constitution-creating and law-giving authority laid down the foundation.42 If the advice of experts was to be consulted at all, it had to be now. Legal theorists were aware of this, and the response was a large number of private constitutional blueprints.43

At the centre of the action stood the bourgeois left-liberal Hugo Preuß (1860–1925).44 He held a democratic theory of the state developed from Gierke's ideas about associations and cooperatives,45 had experience in municipal politics, and had also begun to speak out on political questions of the day early on.46 In 1906 he was finally given the professorship at the new Berliner Handelshochschule that had been denied him for years. Yet he remained ‘controversial’. His 1915 book Das deutsche Volk und die Politik (‘The German People and Polities’) was sharply criticized.47 Nationalist (p.55) circles were not happy with the left-liberal spin to Gierke's ideas, and Preuß's appeal to replace the ‘authoritarian state’ (Obrigkeitsstaat) with a ‘republic’ (Volksstaat) was seen as polemical.48 When it became clear in 1917 that a transition to a system of parliamentary democracy would take place, Preuß was officially asked to draft suggestions for changes to the constitution.49 His now famous article ‘Republic or False Authoritarian State?’ appeared in the Berliner Tageblatt on 14 November 1918,50 one day before his appointment as state secretary of the Reich Office of the Interior, which made him the chief official in charge of drafting the new constitution.

Preuß was aware that his critique of the concept of the federal state as it had become established since Laband, his dismantling of the notion of sovereignty, and his attendant demotion of the Länder to territorial bodies would not make it into his work on the constitution in this form. His ideas about modifying the sovereign state's monopoly of law creation (Rechtsetzung)—so sharply articulated in the prevailing opinion of his day—in favour of an internally graduated pluralism of human associations could hardly be translated into constitutional norms.

But his attack on the dogma of sovereignty was also an attack on the authoritarian state such as had not been seen since C. F. v. Gerber's move to establish the ‘power of will’ (Willensmacht) as a doctrine. For Preuß, that model did not offer sufficient room for the political participation of society ‘from below’. It did not respect the autonomous way in which human beings came together to form associations. In his conception, which was also influenced by Freiherr vom Stein and by von Gneist, communities, Länder, and the state as a whole appeared as functionally demarcated and graded levels of the ‘republic’ (Volksstaat).51 What that entailed, first of all, was a strengthening of communal self-government. As Preuß saw it, based on his experiences in Berlin, this is precisely where the modern service state (Leistungsstaat) took shape in the form of municipal socialism.52 However, the desired participation in the ‘republic’ (Volksstaat) also meant that the middle level had to be constructed in a more balanced way than before. Non-viable small states, whose sole legitimacy was dynastic, were to (p.56) disappear. The block that was ‘Prussia’ would have to be broken up into several medium-sized Länder 53

That was already enough to create tensions with the prevailing opinion on state law theory. Preuß's upper-middle-class and Jewish background, along with his fusion of a socially committed liberalism, associational-pluralistic ideas, and democratic thinking aroused further reservations.54 He was an outsider in the bourgeoisie, but that meant that he could also be accepted by the proponents of social democracy, which he did not embrace because he stood aloof from the kind of authoritarian and class-warfare thinking that was alive and well in that movement.

2. The road to the final version

The process of working out the Reich Constitution between the last days of November 1918 and the middle of January 1919 led to a gradual change in Hugo Preuß's conception.55 From the very beginning, other forces were also involved. The preliminary debate between 9 and 12 December 1918 included representatives from the SPD and the USPD, the scholar of international law Alfred von Verdroß (1890–1980) as the Austrian representative, and Max Weber as a scholarly expert, with other experts to follow.56 The first draft (I)57 called for a ‘decentralized unitary state’58 with fourteen individual German Länder and two Austrian Länder, and dispensed with a more broadly conceived catalogue of basic rights as well as a regulation of the relationship between state and church. A Supreme Court was provided (p.57) to adjudicate institutional complaints (Organklagen) and disputes between the Reich and the Länder.59

When a revised version of this concept was published as Draft II in the Reichsanzeiger on 20 January 1919, the catalogue of basic rights had been noticeably expanded, the autonomy of the churches had been secured,60 and, above all, the explosive reorganization proposals had been toned down. Still, the reaction to it was vehement, for example by Erich Kaufmann, who rigorously advocated the preservation of Prussia as ‘the only state-like large enterprise’, while at the same time—like Preuß—opposing a federalism that could weaken the Reich.61 Two basic currents emanating from Gierke collided here: Kaufmann with his notion of a powerful national power politics pursued by a ‘sovereign’ Reich dominated by Prussia,62 and Preuß with his decentralized concept of democratic participation. In Kaufmann's view, his colleague Preuß had no understanding of the ‘state’; he was essentially nothing more than an ‘angry municipal politician who, never having done any work for the “state”, has now been appointed directly to a high-ranking Reich post’.63

Once the preparatory Länder Commission and the Committee of States (Staatenausschß) had turned the unitarian model back into a federal one and the survival of Prussia had been guaranteed,64 Kaufmann expressed greater satisfaction, indeed, he noted ‘tremendous progress in the direction (p.58) toward a unitary state’65 and continued his efforts at strengthening the unitary character of the Reich (Reich Railway, Reich Army).66

On other issues the Reich government's Preuß-dominated blueprint and the counter-proposal worked out by Heinrich Triepel, Friedrich Lusensky, Erich Kaufmann, and others, were in agreement: for instance, to keep the offices of chancellor and president separate and to give the president his own basis of legitimacy by popular election.67 This construction of a quasi-monarchic counterweight to the parliament was not only in line with the then-prevailing notion of the ‘nature’ of a parliamentary form of government,68 it also attests to a general distrust of parties and to the continuing tradition of monarchy. The hope was that the ‘Ersatzkaiser’ chosen by the people would rise above the parties, lead and represent the state, and thus stand ready in crisis situations with the help of his veto power and the right to pass emergency decrees. That current would have been strengthened further if—as the free conservative Johann Victor Bredt (1879–1940)69 had done in his constitutional blueprint—the offices of the president and chancellor had been combined.70

As the last stage of the draft was presented, Preuß was able to take stock of what had been done when he presented the National Assembly with an oral justification of the blueprint on 24 February 1919.71 As far as federalism was concerned, he spoke of a ‘broken line’, indicating his disappointment over the failed reorganization of the Länder and what he believed was an excessively high threshold for constitutional amendments. In his eyes, success and failure thus lay side by side. Successes included the overall structure of the organs of the Reich as he had conceived it; an overall unitary direction that did prevail in the end, even if the old representation of the Länder had made its way into the constitution in the form of the (p.59) Reichsrat; the recognition of the ‘universally accepted rules of international law as binding components of German Reich law’ (Art. 4);72 the liberal and at the same time careful settlement of the problems relating to state church law;73 and the incorporation of communal self-government. If Preuß, at the urging of Max Weber, let himself be persuaded of the need to give the Reich president a strong position, he was driven also by the hope that this would be a way to dampen the egotism of the Länder 74

As far as the basic rights were concerned, he believed that in a truly democratic polity they were in principle superfluous as a protective shield and were more like an affirmation, which is also why he was afraid of lengthy debates about them.75 It was clear to him that they must not be turned into anti-parliamentary instruments.76

The constitution was thus the product of compromises on practical and theoretical issues, and it is hard to see how it could have been anything else. All participants were aware of this, especially the legal scholars represented in the National Assembly. Their influence was relatively strong during the entire process of debate and discussion, ‘since practitioners were, understandably enough, less comfortable in the area of state law and the debates were frequently theoretical in nature.’77

There is no need to examine the final stages here: from the revision of Draft III to the debate in the National Assembly, the final vote on 31 July, and the day the constitution went into effect, 14 August 1919.78 The foundation had been laid,79 and it was far better than later assessments, undertaken from the perspective of Weimar's failure, were willing to concede. Its allegedly principal mistakes—the excessively powerful role of the Reich president, which included the right to dissolve parliament and to issue emergency decrees, the electoral law, a variation of the vote (p.60) of no-confidence that was only negative, the relationship between parliamentary and plebiscitary legislation (Volksgesetzgebung), the fact that the parties were not integrated into the system, and the lack of the positive thrust provided by basic rights—are theoretical constructs after the fact. The Weimar Constitution would certainly have been viable in a more pragmatic, more moderate political environment; over the years its shortcomings could have been explicitly or tacitly remedied. What it lacked was not better constitutional mechanics, but a web of unwritten rules by which a political class, split by concrete issues yet self-confident and sustained by a basic consensus, could have bridged possible weaknesses in the structure of the constitution. In turn, the development of such rules presupposed a more favourable climate and, above all, ‘time’.

3. The Versailles Treaty and the field of international law

The Versailles Treaty that was signed on 28 June 1919, after intense domestic political debates, did mark the end of the world war in terms of international law, but not the real end of its oppressive burdens.80 The hoped-for agreement with the wartime enemies on the level of self-determination and equality that would be accorded Germany had failed. The Treaty was in fact a diktat.81 It excluded Germany from the newly created League of Nations (Part 1), fixed in writing the territorial changes along the borders with Belgium, France, Denmark, Poland, and Czechoslovakia, and prohibited the annexation of Austria (Parts II, III). Its colonies were placed under the authority of the League of Nations (Part IV), Germany was demilitarized (Part V) and was forced to pay reparations of undetermined size (Part VIII).82 The moral basis of all of these provisions was the ‘war guilt’ clause (Article 231). It is enough to recall these key words to understand just how deeply public opinion in Germany had to be traumatized by this document. The Bonn state law theorist Philipp Zorn, personally inclined to monarchy, expressed the heartfelt thoughts of the public and his colleagues when he wrote: ‘The peace treaty is a terrible and glaring contradiction of the idea of law.’83 Erich Kaufmann reiterated in 1926 that it ‘was and is madness to erect a peace treaty on the principles of punitive justice’.84

(p.61) After 1919, many German and Austrian scholars of state law and international law addressed the questions raised by the treaty. They were involved in publishing the documents and commenting on them,85 they wrote on the detailed issues pertaining to the League of Nations,86 German sovereignty (occupation of the Rhineland),87 the territorial problems (Eupen-Malmady, Alsace-Lorraine,88 the Saar region,89 the Memel region,90 Danzig, Hultschiner Ländchen, Upper Silesia,91 German Austria,92 the German-Danish border), the referendums, the protection of minorities,93 and, above all, reparations.94 A book about ‘punishable offence under international law’ was also shaped by the climate produced by ‘Versailles’, even though its approach was strictly positivist.95 The German Society for International Law, founded in 1917 and, much like its English counterpart, a typical creation of the war, took up all these questions with great passion at its meetings.

(p.62) There was no truly neutral perspective among the positions that were staked out. German scholars, the majority of whom were anyhow to be found in the range of the DVP and the DNVP along the spectrum of party politics,96 felt, as a matter of course, that it was their patriotic duty to search out the interpretations of international law that were most favourable to their country.97 Much like historical scholarship, which now devoted itself to refuting the thesis of Germany's war guilt and in part also to finding proof of a ‘stab in the back’,98 international law was in danger of being understood merely as a legal discipline aimed against the victorious powers and the League of Nations. That is not much of a surprise, given the nationalistic climate in which that generation had grown up, and given the European paroxysms of nationalism during the war. But more had changed in the last third of the nineteenth century than the general nationalization of the issues: because of the recognized excellence of German-speaking jurisprudence at the time, the stature of the Habsburg monarchy, and the colonial interests of the German Reich, the German and Austrian disciplines of international law could have developed more vigorously in and of themselves; moreover, there was a German—Austrian peace movement. Yet the symbiosis of nationalism and legal positivism was too powerful to permit an unencumbered view beyond the borders. The spread of the peace movement was obstructed by the social dominance of the military. The thinking in terms of the power state (Machtstaat) tended to lead to a rejection of international law or at least its interpretation as what Philipp Zorn called ‘Außenstaatsrecht’ external state law. Natural law, which had always provided important impulses to international law, was regarded as dubious in terms of legal philosophy (K. Bergbohm). And the heightening of international tensions brought the martial view of international law increasingly to the fore (E. Kaufmann), while representatives of the peace movement (W. Schücking, H. Wehberg) became marginalized. As a result, the field of international law became an academic fringe subject in Germany around 1900—in spite of some prominent individual theorists (v. Martitz, Triepel, Bergbohm, Meurer, Zorn) and good textbooks (v. Liszt). The situation was somewhat different in Austria. The political and intellectual climate of the Habsburg monarchy favoured international law, which overarched (p.63) individual ethnic groups, and the pacifist movement (Bertha von Suttner, Heinrich Lammasch).99

Only shortly before 1914, and even more so after ‘Versailles’, did jurists realize that they had neglected to cultivate international law sufficiently. There were no chairs specifically in international law and only a few good libraries and centres of documentation. In May 1914, Walter Schücking, with support from the Carnegie foundation, tried in vain to set up a seminar in international law and make the freshly minted Ph.D. Hans Wehberg part of it.100 But then the international legal scholar Theodor Niemeyer (1857–1939) of Kiel succeeded in establishing an Institute for International Law. Niemeyer headed the institute until 1926 and then handed it over to Walter Schücking, whom the National Socialists tolerated in that position only until the end of 1933. The Institute gained considerable renown from its assembled expertise, its library, and the journal Niemeyers Zeitschrift (for international law). Since Niemeyer had also founded the German Society for International Law (Deutsche Gesellschaft für Völkerrecht) and had collaborated with the Foreign Ministry in training diplomats, Kiel was, during the war, the real scholarly centre of international law in Germany.101 The Austrian counterpart was in Vienna, where the ‘Vienna School’ (H. Kelsen, A. Verdross, J. L. Kunz, and others) now gave rise to a fundamental debate about international law that was inspired above all by legal theory.

In Germany in 1919, there were efforts to establish in Berlin the kind of institute of international law that existed in Kiel. Interested circles from the business world and the diplomatic corps, and especially the legal historian Josef Partsch and the state law and international law theorist Heinrich Triepel at Berlin University collaborated on this endeavour. The first result came in 1925 with the establishment of an Institute for Foreign Public Law and International Law (Institut für ausländisches öffentliches Recht und Völkerrecht, e.V.), which received support from the Kaiser Wilhelm Society for the Advancement of Science. Viktor Bruns (1884–1943), who had studied under Triepel in Tübingen, was appointed its director.102 Together (p.64) with the Institute for Foreign and International Private Law (Institut für ausländisches und Internationales Privatrecht (1926)) under the leadership of Ernst Rabel, the institute of international law was housed in the Berlin Schloß. This describes the institutional framework that has existed to this day: the institute in Kiel (today the Walter Schücking Institute) is still in existence, and the two Kaiser Wilhelm Institutes were turned into Max Planck Institutes in Heidelberg and Hamburg.

III. State law theory and the new constitution

1. The new legitimacy

From the moment the constitutional deliberations began, at the latest, the field of state law theory was well aware that it would have to adjust to a new foundation for state law.103 The new constitution, legitimized by a National Assembly following the example of 1848, embodied the new law that emerged from the rupture of the old. Regardless of whether or not one accepted the constitution inwardly, it now formed the framework of future politics.

Although all sides complained that the text of the constitution was a compromise creation, it did represent a ‘decision’.104 It is irrefutable that the drafters of the constitution wanted a republic and parliamentarism, a federal state and a state under the rule of law. Other aspects had been left hanging in the air as a result of compromise, for example, the issue of ‘councils’ (Räte). In this sense even obscuring problems or not mentioning them at all were decisions. ‘Constitutional law’, Erich Kaufmann said, ‘has thus become … also politically an exceedingly important factor. Its forms and norms must be meticulously adhered to, lest the political disagreement between the various democratic organizational types lead to uncontrolled internal chaos.’105 The compromise character was evident from the structure (p.65) of the constitution, from the mixture of liberal and socialistic elements in the section on basic law, or in the potential opposition of parliamentarism and presidential dictatorship. In the eyes of the revolutionaries the constitution sealed the failure of the revolution and the betrayal by the majority socialists. For the monarchists it was the symbol of the hated ‘Republic’ imposed by the Allies. The extreme right generally rejected the parliamentary model. Federalists criticized the unitarian tendencies, which they believed had become too strong. The unitarians in turn lamented the powerful return of particularism and the unresolved problems of the reform of the Reich. The bourgeoisie found itself in a disastrous forced marriage with the majority socialists. Faced with the alternative of a ‘soviet republic or parliamentary democracy’, the choice naturally fell on the latter: ‘The idea of the democratic-parliamentary republic assumes a protective place in front of the existing social order and joins the battle with Bolshevism.’106

It is quite obvious that inner reservations against the idea of a democratic republic would persist in the process, be they remnants of monarchist notions of legitimacy, be they above all deeply ensconced conceptions of the state as an executive, ideologically neutral institution. But that did not impede the transition to the new form of government, for this transition was facilitated by the idea (following in the tradition of Gerber and Laband) that the state was a normative and fundamentally apolitical framework. The institutions were preserved and were now given a quasi-monarchical apex. As for the rest, one could give one's reservations free rein. Parliaments, parties, and opinion-makers seemed universally like ‘a pandemonium of quarrelling, terribly mendacious, slandering, impudently exaggerating creators of political humbug, to whom honour, truth, and the common welfare mean nothing against the interests of pushing through the election of certain candidates’.107 Nobody described the position of the conservative bourgeoisie in the face of the new situation better than Erich Kaufmann: ‘After the fall of the monarchy and in the maelstroms of the revolution, which left us with a choice only between a parliamentary majority rule and the “dictatorship of the proletariat”, parliamentarism was the only tactical ground we could seek unless we wished to embrace, at least temporarily, the system of Soviets after the Russian model. All political parties, from the German Nationals to the majority social democrats, accepted the parliamentary system as such a tactical foundation, as a mere political “rule of the game.” ’108 In the end he asserted once again that parliamentarism had (p.66) been a plank to which the German nation had clung to keep from drowning; but the nation was ‘spiritually too rich and deep to be able to fulfil its mission in forms created by the Anglo-Saxon spirit for its needs’.109

2. The validity of the Constitution—positivist and anti-positivist positions

State law theory and the justice system, almost without exception, accepted the new constitution as valid in the technical legal sense.110 The collapse of the old order, the procedures for the transfer of civilian and military power that were still more or less legal, and the establishment of a new order by virtue of a National Assembly created by popular election could be seen as an almost didactic demonstration of a revolution's law-creating power. That the breach of the law (which is undoubtedly what happened in 1918) could become the source of law was a theoretical paradox111 that one could resolve in various ways. For the school of legal positivism, which no longer recognized a justification of legal validity that depended on transcendental ‘truths’, control of the power of the state and of the factual power to establish a constitution was sufficient reason to demand that both be accepted by those subject to the law. Of course, writers like Georg Meyer, Hans Pohl, and Georg Anschütz, the authors of this principle canonized before 1914,112 were neither naïve nor politically blind. They were writing within a theoretical context in which legality and legitimacy were still freely derived from each other. Implicit in their thinking were all those balancing and constraining influences that made it possible to have confidence in a concept of law that was ‘empty’ of content.113 The revolutionary change in the form of government appeared to leave untouched the concept of law and the administrative and judicial apparatus that was applying it. Georg Jellinek, too, did not depart from this position when he used his famous formulation of the ‘normative power of the factual’ to demand that validity of the law also be accorded lasting mental recognition of the new norms.114 (p.67) ‘Recognition’ was to him the positive response by the recipient of the norms to the claim of power to assert itself.

When Gerhard Anschütz advocated the doctrine of the law-establishing power of the revolution in his commentary on the constitution, his intent was not by any means to furnish the argumentative basis for a legal theory of ‘permanent revolution’,115 especially since no such thing was in sight. Rather, this doctrine contained primarily his conviction of the limited nature of legal statements, which should not be mixed together with political and ethical value judgements. Needless to say, the emphasis on the end of the revolution and the ‘validity’ of the solemnly adopted constitution was also driven by the intent to defend that constitution. Such a defence was necessary against those who, from extreme political positions, either tried to crack the legality of the constitution by challenging its legitimacy, or went so far as to denounce the constitution outright as illegal because of its revolutionary origins.116

The position that the actual implementation of state power and its recognition by the citizens was sufficient to legitimize a new (constitutional) law remained the dominant opinion under the Weimar Constitution,117 supported also by the authority of international law, where the factual implementation and recognition of a new state authority was traditionally enough for a new state to be recognized. Carl Schmitt, too, shared this view in his constitutional doctrine when he maintained that ‘the political unity, whose constitution is at issue, exists, and the subject of the constitution-giving power is able to determine the nature and form of this existence’. He then continued: ‘The legitimacy of the Weimar Constitution rests on the constitution-giving power of the German people’,118 whereby he even assumed—in opposition to many others119—a continuity between the (p.68) Reich of 1871 and the Republic. But Kelsen argued all the more vigorously that the revolutionary breach of the constitution (the old constitution) would have to lead to the installation of a new basic norm and thus to a new constitution—ergo, to a new state.120 The continuity of the old law was then explained by way of a ‘reception’. This disagreement between Schmitt and Kelsen thus touched on the question of continuity, not on the recognition of the new constitution as valid law.

The factual feature of ‘recognition’ offered a point of entry through which a subjective element could be brought into the equation. Whoever opposed formal criteria while at the same time refusing to accept the validity of a norm as a pure question of power had to focus on the agreement between the norm and convictions actually present among the people or the hypothetical ‘true’ will of the people. It was in this sense that the Historical School of legal thought had already used the ‘spirit of the people’ as interpreted by the legal elite as a living force against the act of law-giving, supposedly dead but suspected of being revolutionary. Now the ‘idealistically (geisteswissenschaftlich) grounded theory of legitimacy from the twenties’121 once more invoked objective-idealistic principles; these principles, standing above the ‘vacillating mind (Sinn)’ of the masses, could be marshalled if one wanted to assume a position beyond positive law from which to unhinge the latter.

An abandonment of formal positivism occurred in all fields of the humanities. An ‘ethics of material value’122 was invoked against Neo-Kantianism,123 and the outbreak of war triggered a renaissance of German Idealism, which showed a tendency to move from the ‘subjective’ Fichte and Schelling above all to the ‘objective’ Hegel.124 The new direction of state law theory was pushing beyond the existing ‘formalism’ and went in search of a ‘material theory of state’. This was the much-discussed ‘embrace of the idealist methodology’,125 whose negative side, the assault on state law positivism, was clearer than its positive side. Those who adopted the new approach were in agreement that the legal order must not be explained solely on its own terms in the form of logical operations. Instead, it had to be traced back ‘to the legal conception of the totality … embedded in and explained on the basis of a coherent sum of psychological, sociological, (p.69) and ethical value prerequisites that are objective in nature, the “national spirit of the historical school” as a reality above and beyond positive law’.126 This made possible interpretations based on the history of ideas and concepts, and it allowed jurisprudence to connect with the discussion about the epistemological status of the ‘humanities’ that was being carried on along a broad front in the 1920s. Holstein, in any case, tried to put their shared ‘convictions’ into concrete terms in the form of a ‘historical natural law’ accessible through the history of thought. His teacher Erich Kaufmann, more crudely and methodologically more naive, sought the simple reintroduction of an Aristotelian-Christian natural law, which was combined—in conformity with the creed—with Hegelian phenomenology. In Kaufmann's eyes, law derived its legitimacy from its concordance with ‘objective values’ that were inherent in every community bound by law and which, as a whole, formed a material order of natural law. He declared that the content of these values could be directly experienced and was therefore ‘indefinable’. Needless to say, only individuals of ‘pure heart’, ‘just and ethical persons’ could participate in this direct experience.127 Triepel, perhaps half in irony but leaning in an idealist direction, uttered the words: ‘We cannot get by without the belief in something “supra-positive.” ’128 As we know, the positivists (Anschütz, Nawiasky, Kelsen) rejected this view and noted with astonishment, indeed uneasiness: ‘Natural law is back en vogue,’129 and, ‘Natural law is legal metaphysics. And now, after a period of positivism and empiricism, the call for metaphysics is once again heard everywhere and in all fields of knowledge.’130

These statements date from 1926, the year the quarrel over methods broke out, but the anti-positivist current it reflects had existed much longer. It is therefore not surprising to find that corresponding arguments were already employed to delegitimize the constitution born of the revolution.131 The arguments rarely went so far as to claim that the constitution was invalid. Yet the frequent repetition of the observation that the constitution was not in harmony with the idea of justice, and that justice stood above established law, was a conscious effort to inject a note of doubt, which sank into public awareness like fine mist. This stance did not generate any concrete suggestions of constitutional changes; it was simply the entire ‘system’ that its advocates rejected, without considering, filled as they were with their own idea of justice, what they were gambling away.132 The state law and international law theorist Axel Freiherr von Freytagh-Loringhoven (p.70) at the University of Breslau, who vehemently opposed the revolution, the idea of popular sovereignty, and the constitution, declared that Prince Max von Baden and Philipp Scheidemann were traitors, that the National Assembly had not been a legitimate bearer of state authority, indeed, that the entire revolution had contradicted the ‘idea of law’ and could therefore produce nothing but injustice. For that reason, the entire constitution ‘cannot be recognized as law’.133

3. Work on the Constitution

3.1. Text editions and commentaries

A veritable race set in to provide commentaries on the new constitution, at first in the form of various text editions.134 Only a week after the constitution went into effect, a commentary appeared from the pen of the tirelessly productive Friedrich Giese, who was also active in the continuing training of civil servants.135 Soon after, commentaries by other authors appeared, for example, Adolf Arndt (1849–1926), whose mindset was thoroughly rooted in the Empire,136 Ottmar Bühler, whose penchant was rather for administrative law and especially tax law, Friedrich Poetzsch-Heffter, a Privy Legation Councillor and deputy member of the Reichsrat, and, finally, Ludwig Gebhard.137 The large commentary that Hugo Preuß had planned to write was never completed.138

Typical of this genre of smaller explanatory works, written as an educational and practical aid, is the above-mentioned commentary by the Frankfurt public law theorist Friedrich Giese. He wrote the material in a concise and clear form from one edition to the next without exposing himself politically, even though he was clearly a supporter of the Weimar Republic and eventually a co-founder of the Deutsche Staatspartei. His commentary (p.71) was limited to the essential background of the creation of the constitution and offered a reliable overview of the state of the debate on individual issues. It was the model of a ‘positivistic’ commentary for practical use. Worth noting is his interpretation of the Reich as a ‘decentralized unitary state’. Methodologically, Giese—as a student of Philipp Zorn—was a very conscious positivist who combined basic liberal convictions with a national commitment and a certain dislike of the ‘party state’.139 Especially closely related to practical application was the commentary by Fritz Poetzsch-Heffter. As a high official and a precise chronicler of state affairs, he was a respected mediator between theory and practice.140

The group of early analyses of the constitution included also the brief, systematic textbook by Stier-Somlo, who, incidentally, posited a discontinuity between the Empire and the Republic.141 As examples of other works one should mention Walter Jellinek's painstakingly detailed account of the road to the constitution,142 and the essay by Hans Nawiasky, Die Grundgedanken der Reichsverfassung (‘The Fundamental Ideas of the Reich Constitution’), which offered a powerful and clear analysis.143

As deserving as some of these commentaries and basic overviews may have been,144 in the judgement of contemporaries (still persuasive today), the commentary by Gerhard Anschütz was superior by far to all of them.145 ‘It is the best we have at this time in this field,’ Koellreutter wrote in 1922,146 and he reiterated his view in May of 1933 looking back. The experience Anschütz had gained from commenting on the Prussian constitution of 1850 undoubtedly stood him in good stead when he sat down to compose his commentary on the Weimar Constitution.147 His contemporaries were unanimous in regarding it as a masterpiece. Unlike in the case of the Prussian constitution, this time the political views of the commentator (p.72) were in accord with the constitutional text. Anschütz, who had spent the years from 1908 to 1916 in Berlin, had returned to his adopted home, Heidelberg. He and his friend Richard Thoma (who went to Bonn in 1928), both committed democrats—though not necessarily friends of parliamentarism as it was practised—and supporters of the Republic,148 shaped the liberal climate of the faculty. And as positivists, they also formed a certain methodological counterposition to Triepel, Kaufmann, and Smend in Berlin. The contact with Max Weber and the close relationship to the intellectual and cultural ambience of Heidelberg in those years play an important role also in Anschütz's memoirs.149

This work on the Weimar Constitution, which went through its fourteenth edition by 1933, was regarded as the perfect model of a commentary also by scholars in the Federal Republic. Anschütz was able to condense the disputed questions in a lucid fashion and present divergent opinions in a balanced and fair manner, and at the same time convey his own, well-considered opinion. Examples are the question of the continuity of the state (‘The constitution has changed, the state has remained’),150 the contested issues relating to the quality of the Länder as states, the dictatorial powers of the Reich president, or the limitations on the extent to which the constitution could be amended and changed. His bibliographical notes take a back seat to the text itself, though they contain the most important references; literature that was devoid of content or merely ‘political’ was quietly dropped. Anschütz focused in each case on the legal question and on what could be practically realized, and that is also how he saw it in his memoirs. The louder the anti-positivist voices grew, the more this commentary became a defensive bulwark. Anschütz found himself in the position of having to defend tradition, in part against writers compared to whom he had earlier regarded himself as the bearer of liberal progress. A deep methodological divide separated him from Erich Kaufmann, Rudolf Smend, and especially Carl Schmitt. At the meetings of the Association of German Teachers of State Law in 1926 and 1927, this was reflected in his discussion comments, a little melancholy in tone because he seemed to feel that the attacks on him as the ‘spokesman of the prevailing view’ pointed to a new way of dealing with the text of the constitution, one that he regarded as pernicious.

(p.73) 3.2 Textbooks and compilations

Alongside the smaller commentaries and manuals on the new situation of constitutional law, one would have expected, as time went on, to see a new ‘Laband’, that is, a work that provided the Republic with an up-to-date vestment of state law. But the time of persuasive conceptual constructions was over. The scene was dominated by the large-scale commentary and richly detailed, collaborative volumes. Moreover, the numerous textbooks, to the extent that they laid claim to higher scholarship at all, were oriented towards the practical needs of education and training. University teachers used primarily the newly prepared lectures on Reich state law.151 That applies also to the extensive work by Julius Hatschek, which had a strong comparative orientation.152 It was not able to acquire the stature it was intended to have, no doubt because some of the discussion was too perfunctory.

If a work moved outside the academic milieu and dispensed with a rigorous scholarly character, it drew closer again to the literature of political reflection. In this dilemma, the book by the state law theorist and politician Victor Bredt (1879–1940), who was initially a free conservative and then joined the ‘Reich party of the German middle class’, occupied an intermediate position.153 As a member of the Prussian Landtag in 1918–19, Bredt had been intensely involved in the constitutional debate and had important things to report from his perspective, but for that very reason his book did not become a detached, masterful survey.

Looking back, Anschütz later remarked ‘that no textbook or system of German state law at the time, the state law of the Weimar Republic, written by one man appeared. The scope of the material surpassed the capacity of a single person.’154 Of course, Anschütz himself had demonstrated in his own commentary how one could condense the material. Moreover, works of outstanding quality did appear (for example, Carl Schmitt's Verfassungslehre), whose authors could have written such a state law. I suspect the reason was not that the scope of the material as such was too extensive, but (p.74) that the instability of the Republic made it seem especially ephemeral. Synthetic works of this nature demand a long-term perspective of the kind that Laband could presuppose after 1871. It therefore seemed more rewarding to follow the changing conditions of the Republic in shorter writings and monographs, and, above all, to push the fundamental debate over state law theory. If one wanted to move from a precise observation of reality to universally valid statements, it appeared safer to do so in that debate rather than in monumental accounts of the state law of a Republic that might soon cease to exist. That attitude was certainly clear in Carl Schmitt when he spoke, in his book on the constitution, of the bourgeois Rechsstaat that ‘still’ existed.

The large, multi-author compendium presented itself as a solution situated between the scholarly, not very satisfying, university-focused textbooks, and the unattainable, unified ‘system’. In this way one could spread the risk around, make room for special expertise, and attain, at least outwardly, a kind of synthesis. Hans-Carl Nipperdey, a civil and labour law theorist, took that route with his massive, three-volume work Die Grundrechte und Grundpflichten der Reichsverfassung (‘The Basic Rights and Duties of the Reich Constitution’).155 He assembled fifty-two articles dealing with the basic rights of the second main part of the Constitution and with Articles 102–8 (the administration of justice), which had a basic rights quality to them. The contributors included university professors, ministerial officials, judges, and a few lawyers, all in all an impressive cross-section of the legal culture of the Weimar Republic. As diverse as these authors may have been, their thinking about the constitution and its basic rights was positive and constructive.156 What is striking, though, is the absence of Erich Kaufmann, Heinrich Triepel, Rudolf Smend, and Carl Schmitt, and in a different sense also that of Hans Kelsen. The comprehensive introductory essay was penned by Richard Thoma. In an interesting engagement with Smend's position, he saw in the basic rights a uniform group of legal norms the purpose of which was protection for minorities and substantive integration. As the interpretive maxim he proclaimed the highest possible implementation of their legal content. Thoma unambiguously rejected the idea that the basic rights section of the constitution was immune to amendment, as Carl Schmitt had tried to demonstrate. He sensed, quite correctly, that what stood behind this theory was by no means enthusiasm for the liberal Rechtsstaat, but rather the intent, by way of a countermove, to put the first main part of the constitution in question.

(p.75) The scholarly importance of this work did not emerge until later. It lay not in its immediate impact, but rather in its preservation of the state of basic rights theory for better times ahead: even as the work was being published, the Great Depression erupted, government by emergency decrees began, and the Republic altered its character fundamentally. This novel commentary on the basic rights was then revised in the Federal Republic with the participation of Nipperdey.157

Circumstances were even less propitious for the famous state law ‘summa’ of the Weimar Period, the Handbuch des deutschen Staatsrechts (‘Handbook of German State Law’) edited by Anschütz and Thomas (1930–1932).158 It appeared in the midst of the turbulent events surrounding the presidential dictatorships of Brüning and Papen. The picture conveyed in the handbook was more balanced and out of sync with reality, which was no longer functioning in accordance with the constitution. This may have been a disadvantage in the short run, but it played a part in the fact that the picture of Weimar state law, which appeared reasonably normal right up to the outbreak of the Great Depression, was taken over into the Federal Republic, where it was able to become the starting point of the constitutional debate. Once again Richard Thoma wrote a brief introductory essay (which specifically summarized the methodological dispute) on ‘Subject—Method—Literature’ of the science of state law.

The work opens in the ‘First Part’ with a series of historical articles that lead up to the prevailing state law, but which already move beyond a historical review with a discussion of the new state constitutions (Koellreutter) and the existing constitutional law in Austria (Kelsen). The ‘Second Part’, consisting once again of six ‘Main Sections’ and following the traditional structure, deals first of all with questions about the form of government, the territory of the state, and the national people, incorporating into the discussion themes of international law and the law pertaining to foreigners (Fleischmann, Strupp). The article by Gustav Radbruch on the political parties—one of the rare positive voices on this subject—appears somewhat isolated here, because it is not embedded in the context of electoral and parliamentary law.

The second and third main sections take the reader inside the federal state, that is, the relationship between the Reich and the Länder and the law of state organization. The largest section is the one on ‘Functions of State (p.76) Authority’, with twenty-nine individual essays. Thoma's very broad and sweeping article laying the foundation of state functions is followed by comprehensive discussions of law-making, government, administration, and the administration of justice. The sixth main section, finally, is devoted to the basic rights and obligations.

Behind this outline stood the most respected names in the fields of state law and administrative law at the time, joined by the historian Friedrich Meinecke, the criminal law theorists Graf zu Dohna and Radbruch, the civil proceedings specialist Eduard Kern, the former president of the Reichsgericht Walter Simons, and numerous ministerial officials. To be sure, a few names are missing: for example, the Berlin anti-positivist group of Triepel, Smend, and Kaufmann are absent once again, and from the political arena Hermann Heller, on one side, and Axel von Freytagh-Loringhoven and Hans Helfritz, on the other. But the correspondence between Thoma and Smend proves that this was not the product of political strategies of exclusion so much as practical considerations; after all, even the authors represented were quite diverse in their methodological and political ideas. These differences, however, took a back seat in this collective effort. The prevailing tone was a calm presentation with a decided emphasis on a positivist account of the existing law, as one would have expected with Anschütz and Thoma at the editorial helm. The work provides no inkling that the polity it presented in such well-ordered fashion was descending into political chaos, that its legislative branch was paralysed, and that a latent civil war existed in the country. Four weeks after the foreword to the second volume had been written, the Prussian government was ousted in a ‘coup’, and nine months later the entire Republic collapsed with the passage of Hitler's Enabling Law. And so the handbook by Anschütz and Thoma recapitulated a situation of state law that no longer existed in that form by the time the volumes were published.

IV. Essential points of constitutional interpretation

While the following discussion will pick out a few points to characterize the work of state law theorists on the new constitution, it is not intended as a commentary-like account of even the most important questions. That would require an examination of the ‘economic constitution’ and the ‘military constitution’, the educational structure, state church law, and much more. Not only would such an undertaking exceed the boundaries of the present study, it would be unnecessary, since the last edition of the commentary by Anschütz (1933) and the Anschütz-Thoma handbook provide all the necessary information. The modern reader can use them without hesitation, after some careful allowances for elements that were the product of their times.

(p.77) It seems more sensible to select a few central questions to probe into the political implications of certain doctrinal positions, which were more presupposed here than openly articulated. As we shall see, all of these questions developed a certain dynamic of their own: beginning with the period when the Republic was established and the first dramatic highpoint of 1923, on to the phase of greater quiet and normalization (1924–9), leading finally to the death throes of the Republic. It will also become clear that these complexes are interconnected. The struggle over the ‘unity’ of the federal constitution with direct and representative democracy existing side by side on an unstable social foundation, the lack of homogeneity in the formation of a political will, the relationship of the parties to the parliament and the professional civil service, the installation of democracy and Rechtsstaat under the most adverse conditions: all this was an exceedingly difficult undertaking for the field of state law theory, which itself—as part of the bourgeoisie and the intelligentsia—was searching for an identity in a state which the majority of its practitioners regarded with scepticism.

1. Unity of the state

Understandably enough, the problem of the ‘unity of the state’ occupied the state law theorists of the Weimar Republic in a wide variety of ways,159 indeed, all of state law theory between 1918 and 1933 can be seen as a struggle over that unity.160 It is useful, however, to differentiate ‘external’ and ‘internal unity’.

The defeat of Germany that was enshrined in the Versailles Treaty posed a host of problems of international law pertaining to the lost territories, the prohibition against the annexation of the German-speaking part of Austria, and the German minorities in other countries.161 Yet the Reich was territorially reduced rather than threatened in its unity. There was no talk of a ‘dismemberment’ as there was after 1945. On the contrary, one could say that war and revolution had further confirmed the inner unity established in 1871. Of course one could not possibly expect that German international law theorists would operate on a ‘neutral’ level purged of all nationalism when they discussed the territorial problems and all the other questions raised by ‘Versailles’. In a wider sense nearly all authors thought in nationalistic-patriotic terms, even the pacifists.

Much more important was the question of internal unity. Initially it was a federal variation on ‘internal’ sovereignty, with its conflicts between the (p.78) Reich and several Länder, that became the existential problem of the Republic. The Weimar Constitution, with its originally strong but eventually moderated unitarian tendency, had restored the ‘unity of the state’. Yet to the very end of the Republic there were intense conflicts between the Reich and the Länder: beginning with the separatist movements in the west, moving on to the quarrels with Bavaria (1923), and then what was probably the most serious clash, the so-called ‘Prussian coup’ of 20 July 1932. The federalism of the Reich did not settle down. The continuously discussed plans for a reform of the Reich and the constitution revolved in large measure around the question of either strengthening the unitarian trait or, conversely, weakening it and giving the Länder once again an unquestioned quality of statehood, and of dissolving the dualism between the Reich and Prussia while at the same time merging the seventeen smaller Länder into larger entities. Prussia was too strong and the other Länder too weak to allow for a balanced solution.162 The crucial powers in Prussia were not willing to seriously entertain the idea of dividing the state into several Länder, and the smaller states (Partikularstaaten) did not wish to be incorporated into Prussia or absorbed without a trace into the unitarian Reich.

The real core problem, however, lay not in questions of international law or federalism, but in the sociological determination that the ‘inner unity’ of state and society was threatened. A society that had been wrenched from the security of pre-war conditions felt itself to be torn, in search of ‘unity’ and a suitable state. Behind such notions could stand the hope for ‘integration’ (Smend), for an overcoming of social antagonisms through ‘community’ or a graded structure of communities, indeed, for a return to a ‘national spirit’ that had been present since time immemorial. But another option was the propagation of the abolition of all divisions through an authoritarian imposition of unity, that is, through the suppression of all deviations. Anyone who did not wish this kind of solution to class division could only hope for a reformist restoration of ‘social homogeneity’, based on the expectation that ‘the people, as a plurality, must constitute itself consciously as a unity’.163 Surely that was the goal of those who wanted to preserve the democratic Republic. But what presented itself to the sceptics and the enemies of this state was the very different picture of a country tearing itself apart, of the forces of associations and parties that were penetrating into the classic state and robbing it of its power. As these forces were paralysing the state and blocking each other, the state appeared ‘to lose all solidity of statehood and to transform itself into a great process of transposition, in which any kind of—visible or invisible—social and economic powers, using parliamentary majorities, were placing the state apparatus of making and (p.79) applying laws into the service of their own interests.’164 Carl Schmitt invoked this dissolution of the order-generating state in ever-new apocalyptic images as the end of statehood as such, as a ship adrift without a rudder, as the slaughtering and devouring of Leviathan by egotistical particularistic powers, as blindness toward the existentially necessary distinction between friend and foe. Hermann Heller, whom many have all too readily stylized into Schmitt's antipode, assisted Schmitt to the extent that he preached ‘the authoritarian superordination of the state over society’,165 and declared: ‘All politics consists merely in shaping and preserving this unity. In an emergency, all politics must respond to an attack on this unity in the final analysis with the physical destruction of the attacker’166—an apodictic sentence that could have come from the pen of Carl Schmitt. And in his own—theoretically diametrically opposed—way even Hans Kelsen was in search of the normative ‘unity of the legal order’.167

These theoretical efforts to reach such ‘internal unity’168 were not merely reflexes of the prevailing constitutional law, they also for their part influenced the legal-political proposals to solve the crisis of the state. Hermann Heller's book Die Souveränität (‘Sovereignty’, 1929) was a navigation beacon for the subsequent debates after 1929 about saving the constitution.169 Smend's Verfassung und Verfassungsrecht (‘Constitution and Constitutional Law’, 1928) offered reflections on the meaning and possibility of integration, though it was also an indirect statement about the inability of the Republic to achieve integration and thus a coded verdict about the Weimar Republic's quality as a state. Carl Schmitt's gloomy analysis of the ‘concrete constitutional situation of the present’ (1931) culminated in the recommendation that the position of the Reich president be strengthened further.170 In what he later called his ‘desperate attempt to save the presidential system, the last chance of the Weimar Republic, from a jurisprudence that refused to ask about friend or foe of the constitution,’171 (p.80) he was drawing the obvious conclusion from his work Verfassungslehre (‘Constitutional Doctrine’, 1928) and the distinction he drew there between constitution and constitutional law. Of course, the direction of jurisprudence that he despised, above all the positivism of Anschütz, was no threat to the Republic; in his view it merely made those who advocated it politically blind to an enemy whose name—like that of the devil—he dared not utter.

2. Parliamentarism and party state

2.1 Parliamentarism and democracy

The pure model of a parliamentary democracy resting on popular sovereignty offers a formal answer to the question of how to attain ‘internal unity’. It points, first, to the process by which society's will is formulated, a process into which the parties had increasingly inserted themselves since the middle of the nineteenth century in a role of pre-formulating and mediating that will; second, to the electoral act, which transfers the process of formulating society's will to the formation of the will of the state in parliament, where it gives rise to the ‘general law’ applicable to all. However, this model was realized only in a modified form in the Weimar National Assembly. There were two direct tracks of legitimization (Reichstag, Reich president), an additional indirect track by way of the state parliaments (Reichsrat), and, finally, the possibility of ‘popular legislation’ (Art. 73, Section 3, 73, Sections 1, 2, 76 Weimar Constitution).172 With this set-up, the democratic legitimization of the legal order was from the outset fractured and weakened.

Nearly all principled questions of state law doctrine could be discussed within this framework: the dualism of direct and representative democracy, the balance of power between parliament and a president appealing to popular legislation, the possible contents of legislative acts, that is to say, the question about the meaning of the traditional distinction between laws in the formal and material sense and thus about the limitations imposed upon the legislature vis-à-vis the executive and the judiciary. A general question that arose was whether, and if so how, the conceptual world of parliamentarism derived from the dualistic system of constitutionalism could now be taken over into a model that was—at least in principle—monistic and based on the notion of the sovereignty of the people. One entirely new problem, for example, was the question of whether ‘popular (p.81) legislation’ (plebiscites) could also enact constitutional changes, which meant that there would be two legislators within the Reichstag (simple and qualified majority) and two outside it (the people, the Reich president). ‘The science of state law’, Willibald Apelt wrote looking back, ‘did not let this catalogue of questions slip by and found here a thankful field from which to critique the Weimar Constitution and its concept of law, and to articulate new legal ideas. Although the discussion had little influence on the practice of legislating and administration, it did cause some confusion in the area of the administration of justice.’173

Points of intersection between theory and practice appeared whenever contemporaries, in times of crisis, searched for possible structural changes that were in conformity with the constitution. For example, between 1919 and 1933, parliament itself adopted twenty-two laws that breached the constitution, and another twenty-two laws that were conceived as amending the constitution in order to obviate any doubts.174 A different path was to excuse parliament from its legislative function through ‘enabling acts’.175 No doubt the theoretically invoked ‘parliamentary absolutism’ could have destroyed the horizontal and vertical separation of power, but it was not an acute threat. Instead, the representative function of parliament was imperilled from the outside by a barely contained presidential power and by the latent threat of an appeal to direct democracy.176 And parliament weakened itself internally through the parties' rigid adherence to ideological positions and a corresponding disdain for compromise.

The prevailing opinion, represented by the commentary of Anschütz, sought to defend a system that was on the whole—with the exception of what was probably an overly complicated set-up with its intermeshing of parliamentary and plebiscitary law-making—fairly simple and straightforward.177 Its enemies, who became particularly active after the inflation of 1923 and during the presidential cabinets, were driven by a deep-seated dislike of parliamentary rule and majority decisions, and by a distrust of the ‘relative reasonableness’ of the formation of public opinion and party politics. When it came to these issues, in particular, the efforts at bringing out weaknesses or logical inconsistencies within the constitution, and confronting artificial democratic ideals with base reality, were pursued with an (p.82) intensity that reveals a motivation beyond a mere scholarly thirst for knowledge. A disproportionate amount of intellectual energy was expended to prove that parliamentarism was a product of the nineteenth century and merely a ‘liberal’ relic in the age of the mass state.178 The alleged antagonism between ‘real’ democracy and representative parliamentarism and the modern party state, or the supposed impossibility of an ‘organic linkage’ of majority and proportional election,179 contained not only partially correct observations. Those who articulated these views were also driven by the desire to sharpen the diagnostic contradictions, a desire that was fed, in the final analysis, by profound aversions. And the animating spirit behind the second main section of the constitution (basic rights and duties), which had been written with the participation of the anti-liberal Carl Schmitt,180 was not a liberal commitment to civic rights, but the declared intent of limiting parliament's manoeuvring room.181 The increased accentuation of institutional thinking, in particular, was a signal for the struggle over stability and for the anti-parliamentary designs it entailed.182

2.2 Party state

The debates within state law theory that provided a critical backdrop to the parliamentary system condensed into the symbolic phrase ‘party state’, which carried not only an analytical but also a contemptuous connotation.183 The constitution did not regulate the standing of the parties, it merely touched on them once in passing, and here in an unambiguously negative tone (Article 130). For that reason there was essentially no reason to mention the parties in a commentary on the positive law of the constitution. It was symptomatic that the comments on the parties in the Handbook of Anschütz and Thoma came from the pen of a legal philosopher, criminal law jurist, and politician (Gustav Radbruch). Parties remained what they had been in the pre-war period, creations of civic law. It was (p.83) their task, within the realm of society, to help establish its representative organ, parliament.184 So long as parliaments functioned as the ‘counterpart’ to the executive legitimated by the monarch, they entered the purview of state law only with respect to the technical organization of the electoral process, and in parliament as parliamentary groups.

In principle that perspective continued even after 1919, even though the dualism of the constitutional system seemed to have disappeared. In reality, the dualism was preserved through the double legitimization of Reichstag and Reich president by popular election, even if the new system had succeeded in making the formation of the government into a parliamentary process. As a result, it was possible to continue playing the ‘strong state’—with the Reich president, the Reich chancellor, and the executive—off against a ‘weak’ parliament. This kind of thinking was also perpetuated by the fact that the parties of the pre-war period reappeared essentially unchanged in the Republic. To that extent, at least, the ‘latent crisis’ of the Reich continued.185

To be sure, for some time now there had been voices that emphasized the indispensability of parties in the modern state. Hugo Preuß and Friedrich Naumann did so on the basis of their liberal notions of participation and their knowledge of political practice.186 Max Weber and Robert Michels brought out that the transition from politicians who were notables in their communities to professional politicians could only be effected by way of the parties, and that the change from a bourgeois parliament of civic notables to mass democracy made the pre-formulation and concentration of the political will unavoidable.187 General State Theory also took cognizance of the parties in this sense.188 Still, state law theory and state theory were rather unprepared when the transition took place from the ‘closed’ formation of the will of the state (monarch, government, top military leadership) to an open interaction of parties and associations. The only remaining fixed points in this hustle and bustle appeared to be the Reich president, the top (p.84) layers of the bureaucracy, and municipal government. Even the parties themselves, now that they had been forced to assume direct responsibility of government, had considerable difficulties redefining their role.

In the field of state law theory, a positive attitude toward the party system emerged naturally enough most quickly among those who already had experience as parliamentarians (W. Apelt, E. Rosenthal, W. Kahl, L. v. Köhler, H. Preuß) or who had in any case accepted parliamentary democracy internally. For example, Rudolf Laun early on spoke out against the illusion of a value-neutral application of the law and against a state law theory free of politics, and he advocated open participation in the parties especially by university teachers.189 Others did not go that far, but they objectively analysed the important role of parties in modern democracy and emphasized their function in forming the parliamentary will as well as in producing qualified leadership personnel for democracy.190

Of course, this kind of attitude was atypical. Public opinion, the artistic intelligentsia, and state law theory were rife with reservations about the ‘party system’ and ‘party quarrelling’. The motives behind these reservations were complex, historically tenacious, and undoubtedly fed by real aberrations and abuses. Anyone who commented on the parties between 1919 and 1933 fell back, first of all, on experiences from the pre-war period. Since the pressures toward responsible compromise had been less prior to 1914, criticism and obstructionism were often enough to make a name for oneself.191 ‘Party system’ (Parteiwesen) was the symbolic phrase for the thwarting of the government's good intentions, for internal fractiousness, paralysis, and egotistical politics of self-interest. To anyone who saw the state as the centre of the nation's will, as an organism, as a real associative person, or as the spiritual process of integration, parties were the organized disunion and rupture of the nation.192 ‘Disunion’ in the Hegelian sense was traditionally the negative as such, pain, and the separation that had to be overcome. A society that experienced itself as torn and fragmented therefore had a tendency to feel a deep revulsion over the formation of parties. It was blocked from taking the optimistic view of antagonisms and (p.85) conflicts. The notion that the ‘just’ solution would be found in the competition of public opinion and in parliament was dismissed as a liberal illusion; and if the constitution presupposed this very notion, precisely the fact that it freed delegates from party coercion (Article 21) showed that it accepted parties only on the outside and not within parliament itself.

Parties had to be opposed even more so by state law theorists who judged a state according to its ability to exercise power (E. Kaufmann), who were pursuing ideas relating to associations or a corporative state (Herrfahrdt, Tatarin-Tarnheyden, Gerber),193 or who, caught up in the world of ideas of the ‘conservative revolution’, regarded the entire nineteenth century—with its liberalism, parliamentarism, its ‘security’-guaranteeing basic rights, and its constitutional state—as the rubbish of history to begin with.194 Among the latter, the imprint of the military and front-line experience, together with the legend of the ‘stab in the back’, often intensified into hatred for ‘party politics’ and ‘party politicians’.

Anyone who defined democracy in good Rousseauean fashion as the ‘identity between those who rule and those who are ruled, those who govern and those who are governed, those who command and those who obey’,195 arrived invariably at the postulates of equality and homogeneity, thereby acquiring the starting point from which to play ‘true’ democracy off against ‘false’ democracy: ‘In pure democracy there is only the identity of the truly present people with itself, that is to say, there is no representation’.196 No question, parliamentary democracy, which laboriously constructed a political will from inequality and clashing ideologies and interests, was a ‘false’ democracy from the outset. In it, inequality and non-homogeneity held sway. Its expressions of will were diffuse and shot through with the egotism of its representatives.197 The representatives of the people were ‘average’, not the ‘elite’. Thus, anyone who thought he was looking at a platonic ‘essence of representation’,198 could not but turn his back in disappointment on the base reality of the party system. The parties were power hungry and blocked each other, yet at the same time they were too weak to formulate a (p.86) uniform will. Parliament, Carl Schmitt noted in 1931, ‘simply does not work any more’, the state is an unstable ‘coalition party state’.199 The mix of compromises, questionable agreements, and political blackmail seemed utterly desolate, and Schmitt asked with a perplexity that was in no way feigned: ‘Given this state of affairs, whence should unity arise … ?’200

This mood of hopelessness was often lined with what the professorial aristocracy of the mind regarded as justified contempt for the baser sides of politics and its representatives, ‘drawn from all social strata’ and supposedly uneducated and incompetent. The widely discussed chief shortcoming of the nation's history, its ‘fracturedness’, was countered with a longing for ‘true leadership’ and ‘genuine aristocracy’; the ‘party state’ was opposed by the ‘national community’. The opposition between ‘society and community’, which had become virtually proverbial since Ferdinand Tönnies, now turned into the path of salvation from all modern social ills through the rediscovery of ‘community’ and ‘leadership’. From this perspective, the rule of the people was rule ‘for’ the people, namely by ‘found’ instead of elected leaders, whose position seemed misleadingly described by the concept of ‘representation’ in the legal sense.

The backdrop to this idealistically transfigured conception of ‘democracy’ and ‘representation’ was the notion of a neutral state administered by an incorruptible bureaucracy and governed by a monarch or president who stood above parties. This state was ‘in its essence’ neutral, and its representatives should keep their distance from parties (Article 130 of the Weimar Constitution).201 This was the counter-image to a society in which the antagonisms of faith as well as economic and political interests were raging. Within society there would be free competition, within (and through) the state there would be calm, non-partisan conciliation, the administration of higher interests, in a word: the common weal.

This conception of state law theory, previously connected with the monarch, dominated the Weimar Republic more or less clearly, even in those authors who were striving to appreciate the role of the parties.202 A counterpart to this was a correspondingly strong inner readiness to turn one's back on the party system when the Republic was struggling for survival, because the parties who held it up could no longer find common ground. At the same time, it seemed equally natural to seek salvation in a defence of the professional civil service ‘against’ the parties and in an embrace of the ‘nonpartisan’ Reich president and his dictatorial powers.

And that is why, in the crisis that began in 1929, a return to ‘party-state parliamentarism’, which had eliminated itself, was no longer possible. Only (p.87) a few solutions seemed worth debating. For one, there were the models of the corporative state, whose roots of social romanticism and anti-parliamentarianism reached back deep into the nineteenth century. Now, nourished in part by motifs of middle-class politics, in part by associative ideas, and in part by elements of Catholic social doctrine, they came back into circulation, and were even put into practice in Austria after 1934. In Germany they never really had a chance, and soon after 1933 their supporters were forced to realize that the Nazi state, too, was not willing to implement them.

For that reason the majority placed its hopes on a limited ‘holding out’ of the presidential regime, after which time they would somehow find their way back to the saving shores of normal conditions. In practical terms it meant: prohibition of all radical parties and a strengthening of state unity and the position of the Reich president.203 From there, however, it was but a short step to a complete elimination of all parties, the propagation of ‘true democracy’ through the acclamation by the Volk community, and ‘genuine’ representation by a Führer, who did not require election because he was a leader ‘by nature’. The hated, selfish parties could then be replaced by the one ‘party’, that is, by the ‘movement’ that abolished all oppositions within itself. In this way the choir of many voices that had spoken out against the party system for decades prepared the ground for the establishment of a single party dictatorship.

3. Basic rights and the limits of constitutional change

The interpretation of the second main part of the constitution was a new area for the discipline of state law theory.204 To be sure, there was a tradition that remembered the basic rights section of the constitution adopted by the Frankfurt parliament that had convened in the church of St Paul in 1848.205 Georg Jellinek had done essential preliminary work,206 and Friedrich Giese had written his doctoral thesis on ‘The Basic Rights’.207 The classic stock of ideas was accessible and known through the commentaries on the territorial constitutions of the nineteenth century.208 Still, the second main part of the Weimar Constitution seemed to be something new. It contained side by side classic elements of bourgeois liberalism, remnants (p.88) of the idea of Soviets, promises of socialization, legislative tasks, objective guarantees, and elements of state ethics.

We can distinguish several phases in the scholarly appropriation of this material. The first, lasting from 1919 to about 1924, is characterized by a mixture of criticism and disregard. During this phase, the basic rights were not yet generally understood as legal tenets (Rechtssätze); instead, observers tended to see the non-legal, non-systematic, and political sides of these articles.209 Moreover, a certain ponderousness has to be expected in any case when it comes to the absorption of new material.

Once the crisis year of 1923 had passed, however, the second phase began. Basic rights were discovered and systematized as classic subjective-public rights with a greater force of validity: by Anschütz and Thoma, on the one hand, by Carl Schmitt, on the other,210 but especially by the two conferences of state law theorists on the principle of equality and on freedom of opinion.211 This phase also saw the development of a ‘basic rights-optimizing’ interpretive maxim as well as its theoretical justification as the elaboration of a ‘general law of freedom’212 that preceded the constitution. For the first time it became clear that an interaction had to take place between the basic law and the circumscribing, simple ‘general law’, so as to prevent the guaranteed basic right from coming up empty. Theorists now distinguished between defensive basic rights and rights that provided for something, between institutional guarantees and legislation or directions for creating concrete legal expressions of rights. Hans Carl Nipperdey's commentary on the basic rights and Carl Schmitt's constitutional doctrine, in particular, worked to clarify the issues in this regard.

The third phase extended from the first presidential cabinet of Brüning to the suspension of the basic rights by the National Socialists through the emergency decrees of the Reich president on 4 and 28 February 1933. In this phase, the basic rights, to the extent that they were still given any consideration at all, were employed as weapons against the emergency decrees as a way of demonstrating that the latter were unconstitutional. In the eyes of the supporters of the Republic, the basic rights condensed the ‘essential content’ of the constitution; in the eyes of their opponents, the basic rights, (p.89) which were obstructing the state, were the contemptible remnants of the bourgeois nineteenth century, remnants that would have to disappear in the coming community.

The causes behind the scholarly ebb and flow of basic rights are complex. To begin with, it may have come as a surprise that the basic rights, conceived as protective barriers against absolutism, were supposed to carry weight also against a popularly elected parliament and a democratically legitimated administration. Yet it was precisely the often-invoked ‘parliamentary absolutism’ that made enemies of parliamentary majority and structural minorities resort to the basic rights. And as long as there was no energetic constitutional jurisdiction to deal with such issues, reinforced judicial powers of review and the interpretation of the basic rights supported by scholarship had to fill the gap.

During the discussion that followed the papers by Rothenbücher and Smend at the congress of state law theorists in 1927, Triepel offered an interim summary of where basic rights theory stood at the time: ‘It is indeed peculiar’, he noted, ‘how much attention is paid to the basic rights today as compared to previously. Why is that? For one, external reasons. After all, the Weimar Constitution devoted nearly half of its articles to basic rights. The internal reasons lie in the recasting of the polity, and in the fact that the citizen in the democratic republic has cause to place special importance in “rights of freedom” ’.213 He himself, Triepel continued, also used to be less concerned with basic rights and had ‘looked upon them with a certain disregard … Now I am finding more and more that the basic rights have become a direct necessity, at least an extremely necessary support’.

What is especially notable about this important testimony is the connection with the methodological debate. The anti-positivist camp discovered the basic rights as ‘legalized values’ (Triepel), if not an outright value system that was being increasingly expanded and solidified through cross-connections. Since it stood at the apex of the hierarchy of norms, it could be readily used against those who were creating laws and regulations. This anti-positivist and thus anti-parliamentarian function of basic rights was strengthened even further once it proved possible to close certain gaps in the protection of basic rights by means of ‘objective’ guarantees. That need was met by the discovery of guaranteed legal institutes or institutions that were solidly established in terms of substance and personnel. The hope was that this would stem the dynamic of inflation and the rapid change of political events. If marriage, property, and the right of inheritance, along with the professional civil service, were secured as institutional guarantees or ‘institutions’, that amounted to a safeguarding of the civic order through ‘objectivization’. In this way the history of the theory of basic rights during the Weimar era has three currents: (1) the activation of basic rights could be (p.90) regarded as a liberal, individualistic counter-movement to the overwhelming power of collectivizing forces; (2) at the same time, it was also suited for the conservative defence of the social status quo and could be used against a mass society geared toward an egalitarian distribution; (3) finally, it could serve as a political weapon against parliament and government, that is, it could be directed against the ‘system’ as such in the name of liberty.

In theory, this relationship of tension between basic rights and the principle of popular sovereignty was to be seen as a self-imposed limitation on democracy, as a way of binding parliament to the constitution, regardless of whether or not the situation was exploited by anti-democratic forces.214 In a sense, democracy was not to be permitted to transgress the law of freedom—in accordance with which it had been set up—in the interest of protecting the weaker. Beyond this protective function, Rudolf Smend, in particular, emphasized in his doctrine of integration that the basic rights took part in the ‘objective integration’ as the solemn declaration of a canon of values.215 In every instance, the ‘legalized values’ mobilized here served as an impediment to innovation rather than a driving force of reform. Although it was not logically necessary that this should be so, this circumstance was the product of the political context of the Republic. For that reason the ‘change in meaning of the basic rights’ that Ernst Rudolf Huber talked about in 1932 was not a value-neutral observation, but the expulsion of the liberal, freedom-protecting elements from the theory of basic rights. From that perspective, basic rights were merely ‘objective principles’ or ‘basic forms of public order’. The individual no longer played a role, he integrated himself into this order.

If one had reached the point of forging the basic rights into an objective order of values embracing all law, the legislating power, too, had to obey this order. Anschütz had stated this very clearly with respect to the controversial question of whether the legislator should be bound by one of the most important basic rights, the principle of equality (Article 109):216 whoever sought to bind the legislator to the basic rights was following ‘a political value judgement, an apparently deep-seated doubt about the ability of the existing parliamentary majorities to be objective’.217 But even those who shared this doubt could, as democrats, live with a ‘flawed’ law: the (p.91) legal positivist Anschütz was ready to accept as valid, legislation rendered ‘unjust’ by inequity. This stance had several advantages: it was clear and straightforward compared to a review by different judges on the basis of nebulous criteria; it was legitimated by the will of the majority; and it was in agreement with tradition. Above all, Anschütz did not wish to make the judge, who was to be explicitly ‘subject’ to the law (Art. 102), into its master.

Needless to say, the inescapably subjective value judgements of the judges were met not only by methodological but also political mistrust.218 The political attitude of the majority of the judges was well known. In 1926, Richard Thoma reminded colleagues in whom he could still presuppose a certain ‘milieu-conditioned uniformity of legal views’ of the ‘irreconcilable opposition with which value standards confront each other today’. People failed to recognize ‘how deeply the nations are divided by class warfare, by bolshevism, fascism, and so on. One day the judge may find himself face to face with fundamental questions of principle. There is no legal community. There are only group subjectivities that are opposed to each other like fire and water. There is something anarchic about an autonomous decision, autonomous ethics; there has to be order if our culture is to survive. That is why one must yield to the legislator put in place by history. External anarchy can be bridged, but never the anarchy of minds.’219

Herein lay the problem of the judicial right of review and the instrumentalization of the basic rights against the legislator. The anti-positivist current was seeking to transcend the existing law in a ‘value order’. In this way an argumentative hierarchy was established. The legislator could be put in his place in the name of a ‘higher principle’, and, above all, could be told that he did not have the power to change the constitution at will. Today, now that the doctrine of limitations on constitutional change has long since been accepted and has become constitutional law in Germany in Article 79, Section 3 of the Basic Law, it may be difficult to readily comprehend why there were such profound differences on this question. Anschütz, Thoma, Jellinek, and others defended the traditional stance, which maintained that the constitution could be changed like any law and in all its parts, provided the process adhered to the requirements established by the constitution itself (Article 76).220 It did not matter to the legal interpretation of Article 76 of (p.92) the Weimar Constitution that this was factually highly unlikely or politically inopportune.

In contrast, Triepel, Schmitt, Bilfinger, and others sought to derive from the constitution itself inherent limitations on changes to it. To that end, they drew upon the distinction between the pouvoir constituant and the pouvoir constituée, between ‘constitution’ and ‘constitutional law’, as well as the two parts of the Constitution, the ‘value-neutral’, organizational first part, and the value-establishing basic rights part.221 In the summer of 1932, Carl Schmitt, protesting with a ‘cry of distress’ against Anschütz's value neutrality, wrote that under the conventional interpretation of Article 76, the state was deprived of using the argument of unconstitutionality against a movement that was able to muster enough supporters to change the constitution.222 The path that Koellreutter had chosen, of declaring the National Socialists to be constitutional and the revolutionary Communists to be unconstitutional,223 was not feasible. It is undoubtedly true that this was an attempt on Schmitt's part to save the presidential system. But that system had long since become an unconstitutional deviation, and in the end it was certainly not the controversial Article 76 that became the entry gate for the enemies of the constitution. Hitler entered onto the political stage not through this article, but through the presidential system. Once there, he passed an emergency decree, which did not even require Article 76. The quarrel over this article had thus been pointless.

However, we cannot subsume the motives that led commentators to seek ways to limit constitutional change under a single current. Some were driven by the concern that the anti-constitutional forces could acquire the necessary majorities required by Article 76 and then suspend the constitution itself, thus carrying out a ‘legal revolution’. Others, meanwhile, appear to have been motivated by the widely shared intent of putting up as many obstacles as possible before the Reichstag, the legislative body with the power to change the constitution. In this way, all efforts at a ‘reform of the Reich’ that required a constitutional amendment could be sabotaged by opponents who invoked the ‘real’ constitution behind the constitution in the formal sense. The distinction that Carl Schmitt articulated between constitution and constitutional law—a quasi-natural law move to upend positivist law—may very well have been praised as a theoretical insight, but as an instrument of legal policy it was very shaky methodologically and unpredictable in its practical consequences.

(p.93) The result was the paradoxical situation in which those who sought to preserve the Republic and democracy in its constitutional form opposed limitations on constitutional change, while a majority of those who did not regard the Republic as worth saving emphasized the ‘limits of constitutional change’. Of course, there were also writers who in principle followed Anschütz's line while advocating a narrow interpretation of Article 76, precisely for the sake of preserving the constitution.224 In other words: behind the battles over changing the constitution stood always certain designs or motives for applying the brakes. The interpretation of the constitution was openly politicized, and now, in the midst of the crisis, those engaged in the debate made little effort to conceal this fact.

4. The position of the Reich president

The scholarly literature that dealt with the Reich president also passed through three phases that were already noted by contemporaries:225 in the first phase, commentators discussed the central question of what the head of the Republic should look like in the future, whether the American or the French model or something in between the two should provide the essential guideline. The final result, which envisaged a plebiscitary presidency (Article 41) with emergency powers (Article 48), combined with a government on a parliamentary basis (Article 54), was initially seen by most as a felicitous synthesis because it promised to reconcile the democratic and the monarchic elements.226 The second phase, extending from 1920 to about 1928, centred on the classic commentary on this model, whereby now, after the experience of Ebert's presidency, questions about Reich execution (Reichsexekution) and the law of emergency decrees occupied a lot of space.227 During the third and most intensive period (1930–3), commentators focused almost exclusively on the Reich president's dictatorial powers and on his role as the ‘guardian’ or, in the end, the spoiler of the Reich constitution.228 Understandably enough, the first phase, and especially the third phase of the death struggle of the Republic, attracted the interest of later observers.229

(p.94) The crucial theoretical question was how to reconcile the monarchic element of the Reich president and the role of a ‘pouvoir neutre’ ascribed to him with the political claim to leadership by the Reich chancellor who was legitimated by parliament. The former, as some kind of ‘popular king’, drew his support from the trust of the people, while the latter drew it from the confidence of the Reichstag (Article 54). Since the Reich president had the power to dissolve the Reichstag (Article 25), override a law by a referendum (Article 73), and appoint the chancellor (Article 53), and since he could be appointed dictator in an emergency (Article 48),230 his authority required a separate source of legitimization through popular election. The scholarly literature regarded this dualism as sensible, initially during the presidency of Ebert,231 but also during the first period of Hindenburg's presidency. Only the blocking of parliament after Stresemann's death in 1929 shifted the balance of power so profoundly that the Reich president had to bear the entire burden, a task to which he was no longer equal. As a result, anti-constitutional forces pushed to the fore: this was the often-invoked ‘state of emergency’.

Now the question was who could preserve the substance of the constitution, with parliament no longer capable of acting and the teetering Reich government propped up only by the Reich president.232 The judicial system that was apolitical in design, especially the Staatsgerichtsh of (Constitutional Court), which regarded itself as the ‘guardian of the constitution’, did not have the competency to do so. Carl Schmitt had already noted as much in 1928.233 In a follow -up essay in March of 1929, he focused his hopes on the Reich president.234 The factors that argued for the president as the choice were his separate democratic legitimization, the neutrality and independence from parliament inherent in the office, his long seven-year term, and above all his authority in controlling the state of emergency (Article 48)235—for Schmitt the real criterion of sovereignty. Precisely the (p.95) transition to a dictatorship legitimated by popular election could thus be elevated into an expression of ‘true democracy’. The ordinary democratic principle, which Schmitt grounded in consensus and homogeneity, was to triumph here over the false, liberal, dysfunctional parliamentary principle.236 The dictatorship of the Reich president was certainly the last card that could be played to save the remnants of the constitutional system, but the only thing it shared with the original model of 1919 was the façade.

It has often been said that the doctrine of state law in the final years of the Republic contributed to the transition to the presidential regime through its exhaustive interpretation of Article 48, Section 2 of the constitution, that it supported the expansion of the practice of emergency decrees beyond the letter of the law and thus played its part in the downfall of the state. There is no doubt that the majority of state law jurists favoured an authoritarian solution, but the accusation, to the extent that it is directed against the field of state law theory as such, goes entirely too far. That the circumstances provided for in Article 48, Section 2 of the constitution were exceeded, for example, with regard to the interpretation of the phrase (borrowed from police law) ‘public safety and order’, by means of defensive legislation in the broadest sense, was the product of combined action by state practice, the administration of justice, and legal theory. When state law jurists warned that the legislature should finally create the constraining implementation law called for in the constitution (Article 48, Section 5)237 and not abuse the law of emergency decrees as a simple replacement for legislative action,238 their words fell on deaf ears. Essentially, the prevailing doctrine, as presented in Anschütz's commentary and in his Handbook of German State Law, was no less helpless than Carl Schmitt in his efforts to support the presidential cabinets of Papen and Schleicher. They were all hoping that the crisis could be somehow overcome with the traditional means, in the worst case by temporarily relinquishing an already ailing parliamentary system.239 No state law theorists suggested that the Republic be destroyed, something that had long been advocated in the circles of the ‘conservative revolution’, for example, or within the NSDAP.240 The only state law theorists who moved toward National Socialism in 1932, Otto Koellreutter and Paul (p.96) Ritterbusch, and possibly also Gustav Adolf Walz, deluded themselves with illusions about a coming ‘national Rechtsstaat’.

5. State jurisdiction

The Staatsgerichtshof that was called for in the constitution (Articles 19, 108, 172) was set up in 1921 and incorporated into the High Court (Reichsgericht).241 Its jurisdiction encompassed disputes over property arising from territorial reorganization, constitutional disputes within the Länder,242 disputes between the Reich and the Länder 243 and between Länder that did not pertain to private law, charges brought against the president, the chancellor, or a minister, and, finally, disputes over the sovereign rights of the Länder assumed by the Reich (railway, mail, telegraph, waterways). The ‘constitutional disputes’ included also the abstract judicial review of Reich laws.244 However, there was no provision for a constitutional complaint against the violation of an individual's basic rights: in the understanding of the time, public law conflicts between the state and its citizens fell within the purview of administrative jurisdiction. Like the Staatsgerichtshöfe of the nineteenth century, the Staatsgerichtshof could not be used as a controlling agent either of the executive or the Reichstag. To that extent it did not live up to the hopes that had been entertained already before the war, and then especially during the National Assembly in Weimar.245

The Staatsgerichtshof was to settle the disputes that were typical in a federalist system, much like the Austrian Constitutional Court that was established at the same time though with considerably broader jurisdiction. The creation of the court was already attended by lively debates. Heinrich Triepel wrote the most important monograph on the issue in 1923,246 and soon after, the 34th Conference of German Jurists (1926) raised the questionof whether an expansion of the court's jurisdiction was (p.97) advisable.247 This concerned not only the protection of individual rights, but also the broadening of the capability of being a party in legal proceedings, which the Staatsgerichtshof itself had undertaken over the objections of legal scholars.248 In 1928, state law theorists in Vienna discussed the ‘Nature and Development of State Jurisdiction’.249 The antipodes Triepel and Kelsen staked out positions that differed less in their conclusions than in their methodology. For Triepel, who remained sceptical on the question but in the end supported an expansion of jurisdiction, the ‘political character’ of ‘constitutional jurisdiction’ was evident, while Kelsen—like his friend and comrade-in-arms Adolf Merkl—emphasized its legal character and wanted to see the jurisdiction broadened accordingly. Richard Thoma raised the question about the kind of independent judges this called for and about the respect that the political powers would accord their decisions. Hermann Heller, who was once again polemicizing against Kelsen, accepted constitutional jurisdiction, but wanted to exclude it precisely on ‘highly political’ questions.

Although Carl Schmitt did not take part in the meeting in Vienna, he was present in spirit, either through his ‘concept of the political’ or his concrete reservations about constitutional jurisdiction. To his mind, this norm-creating (dezisionistisch) legislative-like activity was not compatible with the normal activities of a judge. He believed that the judicial system was unsuited and protested in the name of the civic Rechtsstaat against overburdening the judiciary with tasks that were alien to the administration of the law.250 Soon after it became quite clear whom he regarded as the ‘guardian of the constitution’.251

Kelsen in turn argued against this position by pointing to Schmitt's intellectual dilemma: he wanted to assign to the Reich president, as an allegedly neutral organ, precisely those decisions that involved a differentiation between friend and foe, that is to say, decisions that were anything but neutral.252 As one can gather from these brief indications, the entire debate (p.98) was part of the quarrel over methodology.253 Anyone who spoke out against a right of judicial review as a proponent of the conventional doctrine could, de lege ferenda, certainly advocate a constitutional court. The idea of such a court could likewise be embraced by anyone who regarded these disputes as invariably political in nature, but who was hoping that the judicial review of parliament would exert a calming and stabilizing effect. The feeling that it was important to strengthen state jurisdiction in Germany as it had been done in Austria was widespread, even among the majority that did not share Kelsen's theoretical premisses.254

6. The unitary federal state

The discussion about the so-called legal nature of the Empire as a confederation of states or a federal state, about the connection between the states in general and the allocation of sovereignty within them,255 a discussion that had so dominated the last third of the nineteenth century, initially continued after 1919 on the basis of the new constitution. But after a few years it was seen as exhausted, indeed, it was regarded in a negative sense as fruitless legal conceptualizing. It was clear from the outset that there would be no revival of the idea—once proposed by Max von Seydel—that the political structure was a federation of sovereign states. The only serious effort in that direction originated once again in Bavaria and came from Nawiasky. It was aimed at preserving the sovereignty of the Länder and elevating them to the same level as the Reich through the construction of a tripartite federal state.256 Other than that, however, the dogmatic impulse waned more and more. Richard Thoma, who gave a masterful summary of the debate, noted that ‘most of those who worked on the new, positive German state law dealt only briefly and lightly with the question about the conception and construction of the federal state and the subsumation of the Reich under one term or another’.257

This shift in focus shows that the political establishment, in creating the constitution, had learned from the dogmatic quarrels of the Empire and tried its best to avoid the kind of open areas that had remained in the Reich Constitution of 1871. The unitarian tenor was strong enough to deprive the (p.99) Länder of their sovereignty, but it left them the quality of states incorporated into the Reich.258 At least they were, in the prevailing opinion, still permitted to enter into concordats with the Roman Curia, and they did so.259 This was in line with the general approach of no longer making the concept of sovereignty the crux of statehood.260

And so the polity was, in the words of Carl Schmitt, a ‘federal state without an associative (bündisch) foundation’, born not of the union of Länder, as would be the case with the Federal Republic in 1946–8, but from the decision of the National Assembly for unity structured along the lines of the existing, traditional states. Although the old theoretical questions had thus been largely resolved by the constitution itself, the literary debate remained alive, though with a tendency to grow more muted.261 The majority solved the problem of how to construct the federal state by continuing the older doctrine and superordinating the Reich over the non-sovereign Länder. Then there was the attempt by Nawiasky, already mentioned, to preserve the sovereignty of the Länder. Kelsen bade farewell to the concept of sovereignty and, on the basis of his doctrine, grouped all forms of the state beyond the unitary state together under the keyword ‘decentralization’. Still others did try once more to preserve the notion of confederation and with it also the legal concept of ‘Bundestreue’ (loyalty to the federation).262 In Smend, that effort was linked with his dislike of ‘spatializing (verräumlichende) and mechanizing mental constructs’, which were inherent in all theories of a federal state.263

However, the dogmatic constructions were not merely exercises in legal reasoning. The ‘Reich execution’ (Reichsexekution) that was employed on four occasions, against the states of Thuringia, Saxony-Gotha (1920), Saxony (1923), and Prussia (1932),264 the conflict between the Reich and Bavaria that was settled in 1924,265 or the disputes between Baden and Württemberg over the Donauversinkung provided plenty of opportunities to call for loyalty to the Reich or the federal state, especially in the decisions by the Staatsgerichtshof.266 Even if the ‘confederative element’ (p.100) (bündische Element) was missing from the story of the creation of the constitution, the basic idea that the Länder who formed a state had to abide by its constitutional framework not only according to the letter but also the spirit of the law, was right on target.

7. ‘Coup against Prussia’ and failed reform of the Reich

As was to be expected, state law theorists of the Weimar period not only provided commentary on all the crises of the Republic, but from the outset also discussed the question of possible constitutional reforms.267 The spectrum ranged from scholarly examination to active participation in the process, encompassing the first private constitutional blueprints beginning around 1917 and the final attempts to save the Republic in the autumn of 1932. Even if the ‘German professor as parliamentarian was becoming extinct,’ as Smend put it,268 he had certainly not become apolitical. Even the most committed positivists among state law theorists were very active politically and spoke out on issues of legal policy. Gerhard Anschütz, Hugo Preuß, and Willibalt Apelt, in particular, did their part in helping to draw up the Reich Constitution. Apelt was also an active state minister, Johann Victor Bredt was a parliamentarian and Reich Minister of Justice, Wilhelm Kahl and Axel von Freytagh-Loringhoven served as members of parliament, Fritz Poetzsch-Heffter was a ministerial official, Carl Schmitt acted as an adviser to presidential cabinets, and many international law theorists (Schücking, Strupp, Fleischmann, Triepel, Bruns, Kaufmann, Kraus, and others) served as advisers to the Reich government. Countless expert opinions on state law were prepared, and public law theorists participated in governmental commissions. The involvement of professors of state law and administrative law in party politics, not in the narrower sense of ‘membership’, was more or less public knowledge.269 Much the same holds true for Austria, especially Vienna, where it was even more commonplace than in the Reich for individuals to move from administrative service into academia and the Higher Administrative Court (Verwaltungsgerichtshof), from there into politics, and back again into academia.

In that sense one could say that state law theory and politics were closely intertwined, even if many of the teachers and scholars in the field of public (p.101) law, who numbered about 100 at the end of the Republic, may well have thought of themselves as quiet scholars. The field as a whole was, like none other, called to comment on politics from a constitutional perspective, and to prepare and follow up on designs for reforms of the constitution and the Reich. Therein lay great challenges and sometimes difficult-to-identify achievements of mediation and legal ‘channelling’, but also temptations and dangers, which are regularly attendant upon participation in political power.270

Among all the many practical activities of this kind, I will single out only the case of ‘Prussia vs. the Reich’ that was heard before the Staatsgerichts hof in 1932, following the coup by the Reich government with the help of an emergency decree from the Reich president on 20 July 1932.271 The ambiguous and seemingly mediating decision, which in the final analysis capitulated to the political facts, is a milestone in the constitutional history of the downfall of the Republic. Commentators at the time already sensed that, and later observers saw it even more clearly.272 Carl Schmitt and Carl Bilfinger were quick to justify the events,273 and they were joined by public law theorists who stood close to them politically.274 The university teachers who got involved on the side of Prussia and Bavaria proclaimed once again their opposing positions;275 others declared in no uncertain terms that this (p.102) was a breach of the constitution.276 In this highly political case, the lines were drawn according to political and not scholarly-methodological considerations. The real confrontation occurred between the two ‘anti-positivists’ Carl Schmitt and Hermann Heller. But it is striking that in the figures of Anschütz, Giese, and Nawiasky, three highly prominent positivists constructed the defensive position for Prussia, and that Walter Jellinek and Kelsen joined their camp.

It may well be, as Ernst Rudolf Huber argued, that the violent solution in 1932 to the dualism of Prussia and the Reich, which had been further heightened in the final phase of the Republic by party-political tensions, had already been planned since Brüning and had in a certain sense become ‘inevitable’ as a reaction to the critical domestic political situation. Be that as it may, it was certainly an act of force, one that transcended and put an end to the prior attempts at achieving a reform of the Reich through negotiations. The National Socialists in the Prussian parliament, under the leadership of Hans Kerrl, cooperated with Franz v. Papen, and on 18 July 1932, Kerrl encouraged Papen to take over police power in Prussia.277 The ‘coup against Prussia’ was at the same time a preview of the equally violent ‘Gleichschaltung’ (political alignment) of the Länder by the National Socialists once they had come to power.278 The Republic had not been able to muster the energy or find an opportunity to resolve what had been the virulent problem of ‘Prussia’ ever since the first constitutional blueprint by Hugo Preuß. What had been fused together under the constitutional circumstances of the Empire by a government with the dual function of encompassing Prussia and the Reich was dissolved again in the tensions between 1929 and 1932.

(p.103) The hopes for a peaceful territorial reorganization and for an institutional reform of the Reich (constructive vote of no confidence, reform of the franchise) mobilized a good deal of energy among administrative experts, politicians, and state law theorists. Fritz Poetzsch-Heffter (1881–1935)279 and Arnold Brecht (1884–1977)280 even presented a draft law. The Reich government referred the problems it could not solve on its own to a ‘conference of Länder’, which in turn established committees. The results were published281 and triggered a flood of responses and opinions as late as 1933.282 Those voices reflect the entire helplessness of the legal experts, whose contributions presupposed a political willingness for reform that no longer existed.

In the end there was a mountain of printed paper but not one problem had been resolved.283 Prussia was neither divided up, as Hugo Preuß had imagined, nor was it, as had been the case in the Reich Constitution of 1871, dominant in the representative body of the Länder and linked to the Reich government with ties of overlapping personnel. Neither were the legislative powers of the Reich limited in a way that respected the Länder, nor had the non-viable small states been eliminated. And there had been most certainly no general administrative simplification. The constructive vote of no confidence for the Reichstag was discussed, but it could no longer be implemented.284

(p.104) The real crisis of the Reich and its attendant consciousness of crisis had become so intense that the shortcomings of the constitution were regarded as secondary, because they were no longer seen as a cause of the crisis.285 It was clear, especially to its defenders, that the constitution could no longer be defended only by invoking original intent and the literal wording of the law. Now there were only two alternatives: preservation of the constitution in a modified form, if necessary by employing the extra-constitutional state of emergency as envisaged by Johannes Heckel286 by means of a coup planned by the Reich government and the military;287 or the formally correct transfer of the power of government to the leader of the strongest parliamentary faction, and thus the handing over of the Republic to its sworn enemy, who could be opposed only with political but no longer with constitutional means.288

In this situation, the defenders of the Republic had already given up. ‘They really had nothing to contribute to the solution to the current crisis’,289 at least no extra-constitutional means, and the majority no longer wanted to hear Kelsen's calling attention to the connection between democracy, freedom, and ideological relativism. But the supporters of the presidential dictatorship or of other authoritarian solutions also did not offer anything that was truly helpful. Heckel's thesis amounted merely to the argument that the salvation of the state lay in a further, and now complete, disempowerment of parliament, which had anyhow ceased to function in the autumn of 1932. The problem lay not with a weakness in the constitution. It was not brought down by its contradictions, for example, by the irreconcilability of the first and second main parts, as Carl Schmitt suggested in a ‘warning call’ and ‘cry of distress’ in 1932.290 The Republic's political class was despondent. Its cohesion was not strong enough, the forces were splintered, and so the Republic in a sense fell apart when an unscrupulous demagogue succeeded in marching in through the open door, not as the holder of the parliamentary majority but still in a legal manoeuvre, and closing it behind him.291 The professors of state law were as (p.105) helpless in this situation as everybody else, indeed, they were willing to believe in the strong man, whom the majority in the end preferred over the parliamentary majority. Erich Kaufmann's terribly ambiguous statement—‘Only he who can, may!’292—rewarded the man who now could. As it was, during the preceding years, all too many state law theorists had distanced themselves all too often with trenchant analyses and subtle interpretations from this constitution and its liberal values that they should now be willing to fight for it—if fighting had been their business.

Notes:

(1) F. Lenger, Werner Sombart 1863–1941: Eine Biographie (Munich, 1994), 255 ff., has used a prominent example to show not only what kind of constraints a professor's family had to impose upon itself after 1923, but also how it reacted to this situation. On the inflation and how it was overcome see Huber vii. 422 ff.

(2) On the crises between 1920 and 1923 see Huber vii: Ausbau, Schutz und Untergang der Weimarer Republik (1984), with additional references.

(3) On the murder of the former Reich Minister of Finance, Matthias Erzberger (26 Aug. 1921), and of the Foreign Minister Walter Rathenau (24 June 1922) by right-wing radicals see Huber vii. 208, 250 ff., and C. Gebhardt, Der Erzberger-Mörder Heinrich Tillessen (Tübingen, 1995).

(4) K. Petersen, Zensur in der Weimarer Republik (Stuttgart, Weimar, 1995).

(5) P. Hirsch, Der Weg der Sozialdemokratie zur Macht in Preußen (Berlin, 1929); S. Miller, Die Bürde der Macht: Die deutsche Sozialdemokratie 1918–1920 (Düsseldorf, 1978). Revealing in this regard are the statistics about ‘jurists in the Reichstag’ that were published after the Reichstag elections. They show that the ‘bourgeois’ parties headed the list of party affiliation by a wide margin, while the socialist parties were almost entirely absent. See, for example, DJZ 29 (1924), col. 607 f.: DVP (43.2% jurists), DDP (42.7%), Zentrum (23.1%), DNVP (22.7%).

(6) On the older forms of patriotism see M. Stolleis, ‘Reichspublizistik und Reichspatriotismus vom 16. zum 18. Jahrhundert’, in G. Birtsch, ed., Patriotismus (Hamburg, 1991), 7–23.

(7) G. Robbers, ‘Die Staatslehre der Weimarer Republik’, JURA (1993), 69 ff.; I. Pernice, ‘Carl Schmitt, Rudolf Smend und die europäische Integration’, AöR 120 (1995), 100–20 (108); M. Llanque, ‘Die Theorie politischer Einheitsbildung in Weimar und die Logik von Einheit und Vielheit (Rudolf Smend, Carl Schmitt, Hermann Heller)’, in A. Göbel, D. van Laak, and I. Villinger, eds., Metamorphosen des Politischen: Grundfragen politischer Einheitsbildung seit den 20er Jahren (Berlin, 1995), 157–76.

(8) Public Law, 438 ff. with additional references.

(9) Huber v. 673 ff.; E. Kolb, Die Weimarer Republik, 3rd edn. (Munich, 1993); H. A. Winkler, Weimar 1918–1933: Die Geschichte der ersten deutschen Demokratie (Munich, 1993). A still indispensable documentary source is W. Jellinek, ‘Revolution und Reichsverfassung: Bericht über die Zeit vom 9. November 1918 bis 31. Dezember 1919’, JöR 9 (1920), 1–128.

(10) Anschütz, WRV, ‘Einleitung’, 3 ff.

(11) D. Groh, Negative Integration und revolutionärer Attentismus: Die Sozialdemokratie am Votabend des Ersten Weltkrieges (Berlin, 1973).

(12) H. Spenkuch, Das preußische Herrenhaus: Adel und Bürgertum in der Ersten Kammer des Landtages 1854–1918 (Düsseldorf, 1998). On the constitutional-political and historical reasons behind the ‘erosion of the legitimacy of monarchy’ see E. W. Böckenförde, ‘Der Zusammenbruch der Monarchic und die Entstehung der Weimarer Republik’, DVG iv (1985), 2 ff.

(13) F. v. Martitz, Die Monarchie als Staatsform (Berlin, 1903); P. Zorn, Die alte und die neue Reichsverfassung: Kritische Betrachtungen (Berlin, 1924).

(14) See, for example, E. Bernatzik, Republik und Monarchie (Freiburg i. Br., 1892); O. Mayer, ‘Republikanischer und monarchischer Bundesstaat’, AöR 18 (1903), 337 ff.; the dissertation by E. Kaufmann, ‘Studien zur Staatslehre des monarchischen Prinzipes’, Leipzig, 1906 (in Ges. Schr. i. 1–49) should also be included here, in that it criticized the monarchic principle by demonstrating that it was derived from absolutism, and pointed out theoretical cooperative possibilities; in other words, it sought to reopen the constitutional debate.

(15) C. Schmitt, ‘Legalität und Legitimität’ (1932), in his VA, 2nd edn. (1973), 273. Whether the civil service of the Länder, which lacked such a central point of orientation, was therefore ‘occupied largely by the powers of the pluralistic party state’, as Schmitt argued, is an open question. It is probably less an empirical statement of fact and more an indirect statement about Schmitt's aversion to pluralism and ‘party state’.

(16) The remarkably prescient words by the speaker of the SPD, Richard Schmidt, during the first reading of the draft of the constitution, are quoted in Winkler (n. 9), 101: ‘We must reckon with the fact that one day another man from another party, perhaps from a reactionary party eager for a coup, will stand in this position. We must take precautions against such cases …’

(17) K. Kuchinke, ‘Die deutsche Revolution von 1918 und ihre Folgen für das Privatfürstenrecht’, in N. Brieskorn, P. Mikat, D. Müller, and D. Willoweit, eds., Vom mittelalterlichen Recht zur neuzeitlichen Rechtswissenschaft (Paderborn, 1994), 403–23.

(18) Art. 109 Sect. 3, WRV; the laws of the Länder and all other information in F. Stier-Somlo, in Nipperdey i. 204–12.

(19) On the early stages see E. Kaufmann, ‘Kirchenrechtliche Bemerkungen über die Entstehung des Begriffes der Landeskirche’, in his Ges. Schr. i. 50–69. More recently see J. Jacke, Kirche zwischen Monarchie und Republik: Der preußische Protestantismus nach dem Zusammenbruch von 1918 (Hamburg, 1976); K. Nowak, Evangelische Kirche und Weimarer Republik, 2nd edn. (Göttingen, 1988).

(20) C. Israël, Geschichte des Reichskirchenrechts (Berlin, 1922); F. Giese, ‘Staat und Kirche im neuen Deutschland’, JöR 13 (1925), 249; G. J. Ebers, Staat und Kirche im neuen Deutschland (Munich, 1930). Summary account by C. Linke in DVG iv (1985), 451–73.

(21) G. A. Ritter, ‘Kontinuität und Umformung des deutschen Parteiensystems 1918–1920’, in E. Kolb, ed., Vom Kaiserreich zur Weimarer Republik (Cologne, 1972), 244–75. See also Apelt, 51: ‘The parties of the old Reichstag stood for election [to the National Assembly]. In part they presented themselves to the voters under a new company name and with new window dressing, but with a basket of political ideas that had essentially changed little.’

(22) Huber v, ch. XII, 1002 ff.

(23) See the abdication statement by Wilhelm II on 28 Nov. 1918 (Huber, Doc. II, no. 385) with the directive to the civil servants of the Empire and Prussia to aid those who held power in Germany in preventing anarchy, famine, and foreign rule.

(24) Böckenförde (n. 12), 13.

(25) Summary account in G. Püttner, ‘Der öffentliche Dienst’, DVG iv. (1985), 525–39.

(26) W. Fischer, ‘50 Jahre Deutsche Justiz’, JW 58 (1929), 2553–7. Now see also K. Müller, Der Hüter des Rechts: Die Stellung des Reichsgerichts im deutschen Kaiserreich 1879–1918 (Baden-Baden, 1997).

(27) J. C. G. Röhl, ‘Beamtenpolitik im wilhelminischen Deutschland’, in M. Stürmer, ed., Das kaiserliche Deutschland: Politik und Gesellschaft 1870–1918, 2nd edn. (Düsseldorf, 1976), 287–311; T. Süle, Preußische Bürokratietradition: Zur Entwicklung von Verwaltung und Beamtenschaft in Deutschland, 1871–1918 (Göttingen, 1988). On the transition to the Republic see H. Hattenhauer, Geschichte des Beamtentums, 2nd edn. (Cologne, 1993), 322 ff.

(28) Huber v. 751 ff.

(29) D. Dowe and K. Klotzbach, eds., Programmatische Dokumente der deutschen Sozialdemokratie, 2nd edn. (Berlin, 1984), 225 ff. (229).

(30) As a prototype of that continuity one could name the conservative ‘Vernunftrepublikaner’ (‘Republican of convenience’) Curt Joël (1865–1945). He worked in the Reich Justice Ministry beginning in 1908, from 1920 to 1931 as a state secretary under various ministers, in 1931–2 as Reich Minister of Justice. See K.-D. Godau-Schüttke, Rechtsverwalter des Reiches: Staatssekretär Dr. Curt Joël (Frankfurt, 1981), and P. Dieners, ‘Curt Jöel (1865–1945): Administrator der Reichsjustiz’, in Heinrichs, 484–94.

(31) Apelt, 46.

(32) This formulation was used in the context of 1806 for the eighteenth-century heritage of the law of reason and the Göttingen Reichspublizistik (Public Law, 1 ff., 9.). The parallel can be carried further in abstract form in so far as the liberal writers of the pre-1848 period held politically tense positions on the German League and the various state governments. Of course, now the political roles had been reversed.

(33) O. Graf zu Stolberg-Wernigerode, Die unentschiedene Generation: Deutschlands konservative Führungsschichten am Vorabend des 1. Weltrieges (Munich, 1968).

(34) In this sense for example E. Kaufmann, ‘Gefahren für die deutsche Einheit’, newspaper article, 26–7 Nov. 1918, in Ges. Schr. i. 231; E. Kaufmann, ‘Zur neuen Reichsverfassung’, article of 27 Feb. 1919, in Ges. Schr. i. 239 ff. See also the preface in E. Kaufmann, Grundfragen der künftigen Reichsverfassung (Berlin, 1919): ‘It [the work] has set itself firmly and without reservations on the ground of the democratic development of our constitutional life initiated by the reform of Prince Max von Baden and on the republican form of government that was created by the revolution and must be accepted as a fact.’ But see also the monarchist P. Zorn (n. 13).

(35) Huber v. 193.

(36) G. Anschütz: ‘Zukunftsprobleme deutscher Staatskunst (1915)’, in: Deutsche Reden in schwerer Zeit (Berlin, 1917); ‘Die kommende Reichsverfassung’, DJZ (1919), cols. 113 ff.; ‘Der Aufbau der obersten Gewalten im Entwurf der deutschen Reichsverfassung’, DJZ (1919), cols. 199 ff.; ‘Bundesrat oder Staatenhaus’, Deutsche Politik, 4 (1919), 111 ff.

(37) E. Castrucci, Tra Organiscismo e ‘Rechtsidee’: Il pensiero giuridico di Erich Kaufmann (Milan, 1984); L. Biewer, ‘Erich Kaufmann: Jurist aus Pommern im Dienste von Demokratie und Menschenrechten’, Baltische Stimmen, NS, 75 (1989), 115–24; M. Friedrich, ‘Erich Kaufmann (1880–1972): Jurist in der Zeit und jenseits der Zeiten’, in Heinrichs, 693–704.

(38) M. Weber, Gesammelte politische Schriften, ed. J. Winkelmann, 5th edn. (Tübingen, 1988), 112 ff.; W. J. Mommsen, Max Weber und die deutsche Politik 1890–1920, 2nd edn. (Tübingen, 1974); W. J. Mommsen, Max Weber, Gesellschaft, Politik und Geschichte (Frankfurt, 1974); D. Käsler, Max Weber: Eine Einführung in Leben, Werk und Wirkung (Frankfurt, 1995).

(39) E. Kaufmann, ‘Das Wahlrecht zur deutschen National-Versammlung’, DJZ 24 (1919), cols. 25–9.

(40) Huber v. 1066 ff.; Böckenförde (n. 12), 16 ff.; with references. The crucial innovations were: a modified system of proportional representation, the franchise for women, the right to vote for social welfare recipients and soldiers (for whom the active suffrage was dormant), and a lowering of the voting age from 25 to 20. The distribution of seats was as follows: MSPD (Majority Socialists) 165, USPD (Independent Social Democratic Party) 22, Zentrum 89, DDP, DNP (German National Party) 42, DVP 22, splinter groups 9.

(41) I should mention, for example, the legal historian Konrad Beyerle and the state law and international law theorist Walter Schücking, both members of the DDP; the criminal law theorist Alexander Graf zu Dohna, and the state law, church law, and criminal law theorist Wilhelm Kahl, both of the DVP. Kahl had a major hand in shaping the articles on state church law (137 ff.) in the Weimar Constitution. See W. Kahl, ‘Trennung von Staat und Kirche’, DJZ 24 (1919), cols. 123–6; C. Meurer, ‘Die Kirchenfrage im Verfassungsausschuß’, DJZ 24 (1919), cols. 383–7, as well as K. Achenbach, ‘Recht, Staat und Kirche bei Wilhelm Kahl’, law dissertation, University of Regensburg, 1972; W Ziegler, ‘Die Universität Würzburg im Umbruch (1918–1920)’, in P. Baumgart, ed., 400 Jahre Universität Würzburg: Eine Festschrift (Neustadt a. d. A., 1982), 185.

(42) Huber v. 1083 f.

(43) F. Stier-Somlo, Die Vereinigten Staaten von Deutschland: Ein Entwurf mit Begründung (Tübingen, 1919); W. Jellinek, ‘Revolution’ (n. 9), and ‘Entstehung und Ausbau der Weimarer Reichsverfassung’, in Anschütz and Thoma i. 127 ff.

(44) E. Feder, Hugo Preuß: Ein Lebensbild (Berlin, 1926); C. Schmitt, Hugo Preuß: Sein Staatsbegriff und seine Stellung in der deutschen Staatslehre (Tübingen, 1930); G. Gillessen, Hugo Preuß: Studien zur Ideen- und Verfassungsgeschichte der Weimarer Republik (Berlin, 2000); S. Grassmann, Hugo Preuß und die deutsche Selbstverwaltung (Lübeck, 1965); E. Hamburger, ‘Hugo Preuß. Scholar and Statesman’, Leo Baeck Institute, Year Book, 20 (1975), 179–206; G. Schmidt, ‘Hugo Preuß’, in H. U. Wehler, ed., Deutsche Historiker vii (Göttingen, 1980), 55–68; E. M. Hucko, ‘Zur Erinnerung an Hugo Preuß’, NJW (1985), 2309–11; D. Schefold, ‘Hugo Preuß (1860–1925): Von der Stadtverfassung zur Staatsverfassung der Weimarer Republik’, in Heinrichs, 429–53; J. Mauersberg, Ideen und Konzeption Hugo Preß für die Verfassung der deutschen Republik 1919 und ihre Durchsetzung im Verfassungswerk von Weimar (Frankfurt, 1991); D. Lehnert, ‘Hugo Preuß als moderner Klassiker einer kritischen Theorie der “verfaßten” Politik’, PVS 33 (1992), 33 ff.

(45) H. Preuß, Gemeinde, Staat und Reich als Gebietskörperschaften (Berlin, 1889; reprint Aalen, 1964); ‘Selbstverwaltung, Gemeinde, Staat, Souveranität’, in Festgabe für Paul Laband, vol. ii (Tübingen, 1908), 199 ff. On this see the account of Schefold (n. 44), 437, which offers a clear summary and evaluative assessment.

(46) For example, in 1898 on the question of limiting the activities of Jewish primary school teachers to the teaching of classes in Jewish religion. Preuß protested that restriction in sarcastic manner, and in the process even attracted the career-damaging displeasure of the Emperor.

(47) G. Schmoller, ‘Obrigkeitsstaat und Volkstaat, ein mißverständlicher Gegensatz’, in Schmollers Jahrbuch, 40/2 (1916), 423, also in his Walther Rathenau und Hugo Preuss: Die Staatsmänner des neuen Deutschland (Munich, 1922).

(48) See the speech by J. Goldschmidt on 11 Jan. 1921, on the occasion of Gierke's eightieth birthday, in which he said, alluding to Hugo Preuß: ‘That such an undertaking cannot expect your approval is something you have repeatedly emphasized, especially in your talk “The Germanic idea of the state” of 4 May 1919’, DJZ 26 (1921), col. 711.

(49) See the memorandum in H. Preuß, Staat, Recht und Freiheit (Tübingen, 1926; reprint Hildesheim, 1965), 290 ff.

(50) Reprinted in Preuß (n. 49), 361 ff.

(51) See H. Preuß, Die Entwicklung des deutschen Städtewesens, vol. i: Entwicklungsgeschichte der deutschen Städteverfassung (Leipzig, 1906); ‘Ein Jahrhundert städtischer Verfassungsentwicklung (1908)’, in Preuß (n. 49), 25.

(52) W. Hofmann, ‘Aufgaben und Struktur der kommunalen Selbstverwaltung in der Zeit der Hochindustrialisierung’, in DVG iii (1984), 578 ff. (595 on Preuß). See also H. Preuß, Sozialpolitik im Berliner Verkehr: Schriften der Gesellschaft für soziale Reform (Jena, 1911). On the topic as a whole see Grassmann (n. 44).

(53) H. Preuß, ‘1st Preußen ein “Land”?’, in Preuß (n. 49), 436. A break-up of Prussia was also advocated, apart from Friedrich Meinecke, by Gerhart Anschütz and Willibalt Apelt. See, for example, Anschütz, ‘Zukunftsprobleme’ (n. 36), and ‘Der Aufbau der obersten Gewalten im Entwurf der deutschen Reichsverfassung’, DJZ 24 (1919), cols. 199–205; W. Apelt, ‘Das Werden der neuen Reichsverfassung’, DJZ 24 (1919), cols. 205–8. See also W. Apelt, Jurist im Wandel der Staatsformen: Lebenserinnerungen (Tübingen, 1965), 81 ff., 91 ff.

(54) A. Frhr. v. Freytagh-Loringhoven, Die Weimarer Verfassung in Lehre und Wirklichkeit (Munich, 1924), reported that the Council of Popular Delegates had ‘appointed Dr. Preuß, Professor at the Handelshochschule in Berlin, a member of the Democratic Party and a Jew, State Secretary of the Interior, and had entrusted him—a knowledgeable and astute man, though given to abstract-constructive thinking and to hairsplitting, and as foreign from practical politics as from the sentiment of the German people—with the task of drawing up a draft of a new constitution.’

(55) The events are documented in Huber v. 1178 ff.; a brief account from the perspective of a participant can be found in Apelt, 56 ff. (see also his Lebenserinnerungen, above n. 53, 91 ff.), a summary of the current state of scholarship in Böckenförde (n. 12), 1 ff.—On Preuß's contribution see W. Jellinek, ‘Entstehung und Ausbau der Weimarer Reichsverfassung’, in Anschütz and Thoma i. 127, and the literature listed in n. 44.

(56) Mauersberg (n. 44), 78 ff.

(57) H. Triepel, Quellensammlung zum deutschen Reichsstaatsrecht, 3rd edn. (Tübingen, 1922; 5th edn., 1931), No. 7.

(58) Huber v. 1179.

(59) A draft law for a ‘Supreme Court’ to deal with charges against those responsible for the war, originally endorsed by Friedrich Ebert and proposed by the Reich government (vehemently opposed by H. Triepel, ‘Der Entwurf des Reichsgesetzes über die Errichtung eines Staatsgerichtshofs’, DJZ 24 (1919), cols. 366–74) did not make it through the National Assembly. See W. Kahl, ‘Untersuchungsausschuß und Staatsgerichtshof’, DJZ 25 (1920), cols. 1–7.

(60) Looking back from our vantage point, it seems perfectly natural that the National Assembly could not adopt Friedrich Naumann's catalogue of basic rights, which departed from the tradition of 1848 and was overfreighted with duties and wishes; Rudolf Smend called it the ‘infelicitous, half-liturgical work of his later years’: Verfassung und Verfassungsrecht (Munich, 1928), Sect. 4, n. 18. At least the National Assembly did incorporate the basic rights—an act with far-reaching consequences for the Federal Republic, thereby affirming a commitment to individual freedom. F. Naumann: ‘Versuch volksverständlicher Grundrechte (1919)’, in Huber, Doc. iv, 3rd edn. (1991), No. 89. See also Huber v. 1198 f.

(61) E. Kaufmann, ‘Zur neuen Reichsverfassung’, Der Tag, 27 Feb. 1919 (Ges. Schr. i. 239 ff.); see also H. Friedberg, ‘Preußen in dem Entwurf der künftigen Reichsverfassung’, DJZ 24 (1919), cols. 193–9; E. Jacobi, Einheitsstaat oder Bundesstaat (Leipzig, 1919); R. Hübner, Die Staatsform der Republik (Bonn, 1919).

(62) See, for example, E. Kaufmann, Das Wesen des Völkerrechts und die Clausula rebus sic stantibus: Rechtsphilosophische Studie zum Rechts-, Staats- und Vertragsbegriffe (Tübingen, 1911); id., Bismarcks Erbe in der Reichsverfassung (Berlin, 1919), and the remarkable review by Max Weber in the Frankfurter Zeitung, 28 Oct. 1917, in Gesammelte politische Schriften (above n. 38), 241–4.

(63) Kaufmann, Grundfragen der künftigen Reichsverfassung (Berlin, 1919), 2 f. (Ges. Schr. i. 254 f.) and 7 ff. on ‘Prussia and the German Reich’.

(64) Huber v. 1181 ff.

(65) Kaufmann, Ges. Schr. i. 297.

(66) Kaufmann, ‘Zur neuen Reichsverfassung, Teil I’, 27 Feb. 1919 (n. 61).

(67) Entwurf einer Verfassung des deutschen Reiches (Berlin, 1919), published by the Verfassungsausschuß des Vereins Recht und Wirtschaft. On this see E. Kaufmann, ‘Der Verfassungsentwurf des Vereins “Recht und Wirtschaft” ’, Recht und Wirtschaft: Monatsschrift des Vereins zur Förderung zeitgemäßer Rechtspflege und Verwaltung, 8 (1919), 46–51; id., Grundfragen (n. 63); K. Binding, ‘Der Entwurf einer Verfassung des Deutschen Reiches’, Recht und Wirtschaft, 8 (1919), 61–5.

(68) M. Weber, ‘Parlament und Regierung im neugeordneten Deutschland (1918)’, in his Gesammelte politische Schriften (n. 38), 306–443; R. Redslob, Die parlamentarische Regierung in ihrer wahren und in ihrer unechten Form: Eine vergleichende Studie über die Verfassungen von England, Belgien, Ungarn, Schweden und Frankreich (Tübingen, 1918). On this see also A. Anter, Max Webers Theorie des modernen Staates: Herkunft, Struktur und Bedeutung (Berlin, 1995).

(69) K. Goebel, ‘Johann Victor Bredt (1879 bis 1940)’, in Rheinische Lebensbilder, vol. v (Bonn, 1973), 243–57; M. Schumacher, Mittelstandsfront und Republik (Düsseldorf, 1972).

(70) J. V. Bredt, Entwurf einer Reichsverfassung (Berlin, 1919); Bredt, ed., Das Werk des Herrn Preuß, oder: Wie soil eine Reichsverfassung nicht aussehen? (Berlin, 1919); id., Der Geist der deutschen Reichsverfassung (Berlin, 1924). On Bredt see A. Milatz, NDB 2 (1955), 567.

(71) H. Preuß, ‘Das Werk von Weimar: Aufbau und Verteidigung’, in his Staat, Recht und Freiheit (n. 49), 365 ff. Summarized in Mauersberg (n. 44).

(72) A. v. Verdroß, ‘Reichsrecht und internationales Recht: Eine Lanze für Artikel 3 des Regierungsentwurfs der deutschen Verfassung’, DJZ 24 (1919), cols. 291–3.

(73) With detailed documentation, F. Giese, ‘Staat und Kirche im neuen Deutschland’, JöR 13 (1925), 249–357; for a recent summary account see R Badura, ‘Staatskirchenrecht als Gegenstand des Verfassungsrechts’, in J. Listl and D. Pirson, eds., Handbuch des Staatskirchenrechts der Bundesrepublik Deutschland, 2nd edn. (Berlin, 1994), i. 229–36.

(74) As persuasively argued by Schefold (n. 44).

(75) This view was shared by another member of the National Assembly, the Chief Burgomaster of Kassel, Koch: ‘Die Grundrechte in der Verfassung’, DJZ 24 (1919), cols. 609–15.

(76) O. Jung, Volksgesetzgebung, vol. i (Hamburg, 1990), 548, 587.

(77) Freytagh-Loringhoven (n. 54), 11. On Dohna see now A. Escher, Neukantianische Rechtsphilosophie, teleologische Verbrechensdogmatik und modernes Präventionsstrafrecht (Berlin, 1993).

(78) Detailed account in Huber v. 1178–1205; R. Rürup, ‘Kontinuität und Grundlagen der Weimarer Verfassung’, in E. Kolb, ed., Vom Kaiserreich zur Weimarer Republik (Cologne, 1972), 218–43; H. Boldt, ‘Die Weimarer Reichsverfassung’, in K. D. Bracher et al., eds., Die Weimarer Republik 1918–1933 (Düsseldorf, 1987), 44–62; H. A. Winkler, Weimar 1918–1933: Die Geschichte der ersten deutschen Demokratie (Munich, 1993), 99 ff. with additional references.

(79) As a characteristic voice after the work on the constitution had been concluded, see F. Poetzsch, ‘Die neue Reichsverfassung’, DJZ 25 (1919), cols. 707–11.

(80) Huber, Doc. iv 3rd edn. (Stuttgart, 1991), nos. 148–55; the first documentary account by H. Kraus, ‘Der Friedensvertrag von Versailles’, JöR 9 (1920), 291–332; now K. Schwabe, ed., Quellen zum Friedensschluß von Versailles (Darmstadt, 1997).

(81) H. J. Held, ‘Der Friedensvertrag von Versailles in den Jahren 1919–1923’, JöR 12 (1924), 313–403, with relevant assessments, 402 f.

(82) P. Dieners, ‘Versailler Vertrag’, HRG V (1997), cols. 795–8; Huber v. 1152 ff., 1174; Winkler (n. 78), 87 ff.

(83) P. Zorn, ‘Der Friedensvertrag und das Recht’, DJZ 25 (1920), cols. 665–9.

(84) E. Kaufmann, ‘Die Gleichheit vor dem Gesetz im Sinne des Art. 109 der Reichsverfassung’, VVDStRL 3 (1927), 14.

(85) On the continuation of the Recueil Martens by Triepel see F. v. Martitz, ‘Der Recueil Martens: Ein Beitrag zur Literärgeschichte des Völkerrechts’, AöR 40 (1921), 22–72. On ‘Versailles’ I will mention only K. Strupp, Die Friedensverträge, vol. i: Der Ostfrieden (Berlin, 1918), and Grundriß des Versailler Friedensvertrags (Berlin, 1921); W. Schücking, ed., Kommentar zum Friedensvertrag (Berlin, 1920); H. Kraus and G. Rödiger, Urkunden zum Friedensvertrag (Berlin, 1920/1); F. Berber, Das Diktat von Versailles: Entstehung—Inhalt—Zerfall. Eine Darstellung in Dokumenten, 2 vols. (Essen, 1939).

(86) E. Kaufmann, ‘Der Völkerbund’ (Weimar, 1932), in Ges. Schr. ii. 224–37; C. Schmitt, Die Kernfrage des Völkerbundes (Berlin, 1926) and ‘Der Völkerbund und Europa’, Hochland 25 (1928), 345–54.

(87) C. Schmitt, Die Rheinlande als Objekt internationaler Politik (Cologne, 1925), and ‘Die politische Lage der entmilitarisierten Rheinlande’, Abendland: Deutsche Monatshefte für europäische Kultur, Politik und Wirtschaft, 5 (1929–30), 307–11; H. Gerber, Die Beschränkungen der deutschen Souveränität nach dem Versailler Vertrage (Berlin, 1927).

(88) H. Pohl, Die Elsaß-Lothringische Frage, eine Studie zur Kritik des Versailler Vertrages (Tübingen, 1927).

(89) C. Schmitt, ‘Die Wahlordnung für das Saargebiet vom 29. April 1920: Ein Beispiel zur Lehre von den Prinzipien rechtlicher Ordnung’, Niemeyers Zeitschrift für Internationales Recht, 34 (1924), 415–20.

(90) E. Kaufmann, ‘Völkerrechtliche Autonomie und Staatensukzession: Die Okkupationskosten und die Militärrenten des Memelgebietes’, ZaöRVR 3 (1933), 297–312 (also in his Ges. Schr. ii. 238–53).

(91) E. Kaufmann, ‘Deutsche Hypothekenforderungen in Polen’ (Berlin, 1922), Ges. Schr. ii. 13–78, and ‘Der Begriff der Liquidation im Liquidationsregime des Versailler Vertrages und des deutsch-polnischen Abkommens über Oberschlesien (1926), ein französisches Plädoyer’, Ges. Schr. ii. 176–82.

(92) H. Triepel, ‘Der Zusammenschluß des deutschen Reiches und des Staates Deutsch-Österreich (1918)’, in his Großdeutsch oder Kleindeutsch: Reden über den Anschluß Deutsch-Österreichs an die deutsche Republik (Berlin, 1919), 32 ff.

(93) E. Kaufmann, ‘Souveränitätswechsel und Minderheitenschutz, 1930’, Ges. Schr. ii. 183–90.

(94) P. Schoen, Die völkerrechtliche Haftung der Staaten aus unerlaubten Handlungen (Breslau, 1917); C. Schmitt, Positionen und Begriffe im Kampf mit Weimar-Genf-Versailles, 1923–1939 (Hamburg, 1940); K. Strupp, Die völkerrechtliche Haftung des Staates, insbesondere bei Handlungen Privater (Kiel, 1927); Gerber (n. 87).

(95) K. Strupp, Das völkerrechtliche Delikt (Stuttgart, 1920).

(96) See, for example, the lecture by K. Perels, ‘Der Friede von Versailles und der deutsche Staat’ (Hamburg, 1920); worth reading on this question is H. P. Ipsen, AöR 83 (1958), 374–9 (377).

(97) H. Pohl and C. Sartorius, Modernes Völkerrecht: Eine Sammlung von Quellen und anderen Urkunden (Munich, 1922); Fr. v. Liszt, Das Völkerrecht systematisch dargestellt, 12th edn. ed. Max Fleischmann (Berlin, 1925).

(98) See, for example, C. Weisz, Geschichtsauffassung und politisches Denken Münchner Historiker der Weimarer Zeit: Konrad Beyerle, Max Buchner, Michael Doeberl, Erich Marcks, Karl Alexander von Müller, Hermann Oncken (Berlin, 1970); G. G. Iggers, The German Conception of History: The National Tradition of Historical Thought from Herder to the Present (Middletown, 1968).

(99) For a comprehensive account of the scholarly-political situation see now I. Hueck, ‘Die Gründung völkerrechtlicher Zeitschriften in Deutschland im internationalen Vergleich’, in M. Stolleis, ed., Juristische Zeitschriften: Die neuen Medien des 19. Jahrhunderts (Frankfurt, 1999). On Austria see W. M. Plöchl, ‘Zur Enwicklung der modernen Völkerrechtswissenschaft an der Wiener Juristenfakultät’, in F. A. Frhr. v. d. Heydte and I. Seidl-Hohenveldern, eds., Völkerrecht und rechtliches Weltbild: Festschrift für A. Verdross (Vienna, 1960), 31–53.

(100) W. Schücking, ‘Der Stand des völkerrechtlichen Unterrichts in Deutschland’, Zeitschrift für Völkerrecht, 7 (1914), 375–82. The events themselves are described in Hess. Staatsarchiv Marburg 310, acc. 1974/42, No. 1073; Geh. Staatsarch. PK, Berlin I. HA Rep. 76 Va Sekt. 12 Tit. X, No. 55.

(101) O. L. Brintzinger, ‘50 Jahre Institut für Internationales Recht an der Universität Kiel’, JZ (1964), 285 f. The most recent survey can now be found in Hueck (n. 99).

(102) On the foundation of the institute see R. Vierhaus and B. v. Brocke, eds., Forschung im Spannungsfeld von Politik und Gesellschaft: Geschichte und Struktur der Kaiser-Wilhelm-/Max-Planck-Gesellschaft (Stuttgart, 1990), 300 ff.

(103) Essay by Anschütz, ‘Die kommende Reichsverfassung’ (n. 36); P. Zorn, ‘Die Staatsum-wälzung im Deutschen Reich’, DJZ 5/6 (1919); H. Friedberg, ‘Preußen in dem Entwurf der künftigen Reichsverfassung’, DJZ 5/6 (1919); W Apelt, ‘Das Werden der neuen Reichsverfassung’, DJZ 5/6 (1919); R. Thoma, ‘Deutsche Verfassungsprobleme’, Annalen für soziale Politik und Gesetzgebung, 6 (1919), 409 ff.; M. Weber, ‘Deutschlands künftige Staatsform (1918)’, in his Gesammelte Politische Schriften (n. 38), 448 ff.; H. Gmelin, Entspricht der zweite Reichsverfassungsentwurf unseren Erwartungen? (Gießen, 1919); L. Waldecker, ‘Zur augenblicklichen staatsrechtlichen Lage’, JW 47 (1918), 745 ff.; 48 (1919), 130 ff.

(104) C. S. Schmitt, VL 23 ff. On the factual compromise nature of the constitution, which has been highlighted countless times, see K. D. Bracher, Die Auflösung der Weimarer Republik, 5th edn. (Düsseldorf, 1984); H. Schneider, ‘Die Reichsverfassung vom 11. August 1919’, HdBStR i. 85 ff.; R. Grawert in Der Staat (1989), 481; C. Gusy, ‘Selbstmord oder Tod? Die Verfassungsreformdiskussion der Jahre 1930–1932’, ZfPol 40 (1993), 393 ff.

(105) E. Kaufmann, ‘Untersuchungsausschuß und Staatsgerichtshof (1920)’, in Ges. Schr. i. 309–11.

(106) Apelt, 37.

(107) Kaufmann, Bismarcks Erbe (n. 62), who, with great delight, was quoting the Swedish social democrat Gustav F. Steffen, Ges. Schr. i. 221. On this attitude, which was commonplace in the right-conservative camp, see C. F. Trippe, Konservative Verfassungspolitik 1918–1923: Die DNVP als Opposition in Reich und Ländern (Düsseldorf, 1995).

(108) E. Kaufmann, ‘Die Regierungsbildung in Preußen und im Reiche und die Rolle der Parteien (1921)’, in Ges. Schr. i. 374 ff. (375).

(109) Ges. Schr. i. 387. On this see the remark by Richard Thoma reported by Ernst Friesenhahn (VVDStRL 16 (1958), 65): ‘What else should it do? Put minority rule in place of majority rule? All constitutions are foolish. The problem is: to find the lesser evil.’

(110) E. R. Huber, ‘Rechtsfragen der Novemberrevolution: Die Anerkennung der revolutionären Staatsgewalt und Staatsordnung in der deutschen Rechtsprechung nach 1918’, in Festschrift für F. Schaffstein (Göttingen, 1975), 53 ff.; Huber vi. 9 ff. with additional references.

(111) M. Stolleis, ‘Revolution’, HRG iv (1990), cols. 961–5.

(112) References in Huber iv. 8. The decisive statement by Hans Pohl (AöR 20 (1906), 180), read: ‘Legitimacy is not an essential aspect of state power’. It is usually quoted from G. Meyer and G. Anschütz, Lehrbuch des deutschen Staatsrechts, 7th edn. (Munich, 1919).

(113) C. Schmitt, ‘Legalität und Legitimist (1932)’, in his VA, 277 f.

(114) G. Jellinek, Allgemeine Staatslehre, 3rd edn. (5th reprint 1928; reprint Darmstadt, 1959), 332 ff., 339 ff. The same stance was also taken by the man whom H. Kelsen called ‘the most prominent representative of the theory of recognition’, E. R. Bierling, Juristische Prinzipienlehre, 5 vols. (Tübingen, 1894–1917; reprint Aalen, 1961), ii. 363 f.; and his Zur Kritik juristischer Grundbegriffe, 2 parts (Gotah, 1877, 1883; reprint Aalen, 1965).

(115) As Huber vi. 9, has argued, however, as a general objection to the legal positivist justification, for example in Anschütz, WRV, Introduction, 3 ff.

(116) As, for example, Freytagh-Loringhoven (n. 54); H. Herrfahrdt, Revolution und Rechtswissenschaft: Untersuchung über die juristische Erfassbarkeit von Revolutionsvorgängen und ihre Bedeutung für die allgemeine Rechtslehre (Greifswald, 1930).

(117) References in Huber vi. 10; ibid, also on the decisions of the Reichsgericht in civil and penal matters. See, for example, RGZ 100, 25.

(118) C. Schmitt, VL, § 9. The fact that in his essay ‘Legalität und Legitimität’ (1932) he invoked the ‘worthiness’ (Werthaftigkeit) of a constitution against a ‘system of legality that has become functionalistic’, and that he criticized the prevailing doctrine for its ‘neutrality empty of value and content’, shows that he had absorbed the anti-positivist slogans of the quarrel over methodology and was now beginning to employ them against the existing constitution.

(119) W. Kahl, ‘Die drei Reiche’, in Festgabe für O. Liebmann (Berlin, 1920), 79–85. F. Sander, like his mentor Kelsen, arrived at the conclusion of discontinuity on legal-theoretical grounds: ‘Das Faktum der Revolution und die Kontinuität der Rechtsordnung’, ZöR 1 (1919–20), 132–64; likewise F. Stier-Somlo, Deutsches Reichs- und Landesstaatsrecht, vol. i (Berlin, 1924), 50–5, although in the question of the validity of the Weimar Constitution he fully followed the position staked out by Anschütz. Discontinuity was argued also by H. Nawiasky, Bayerisches Verfassungsrecht (Munich, 1923), 66; L. Wittmayer, Die Verfassung des deutschen Retches (Tübingen, 1922), 4; F. Giese, Die Verfassung des deutschen Reiches vom 11. August 1919 (Berlin, 1919), 16.

(120) H. Kelsen, Allgemeine Staatslehre (Berlin, 1925), § 36 A.

(122) M. Scheler, Der Formalismus in der Ethik und die materiale Wertethik (Halle, 1913, 2nd edn. 1921, 3rd edn. 1927).

(123) E. Kaufmann, Kritik der neukantischen Rechtsphilosophie (Tübingen, 1921), Ges. Schr. iii. 176–245.

(124) J. Binder, Philosophie des Rechts (Berlin, 1925). For the road from Kant to Hegel see R. Dreier, ‘Julius Binder (1870–1939): Ein Rechtsphilosoph zwischen Kaiserreich und Nationalsozialismus’, in F. Loos, eds., Rechtswissenschaften in Göttingen (Göttingen, 1987), 435–55 (441 ff.).

(125) G. Holstein, ‘Von Aufgaben und Zielen heutiger Staatsrechtswissenschaft’, AöR 50 (1926), 1 ff. Holstein implemented the programme for Protestant church law in Die Grundlagen des evangelischen Kirchenrechts (Tübingen, 1928).

(126) G. Holstein in VVDStRL 3 (1927), 55.

(127) E. Kaufmann, VVDStRL 3 (1927), 11 f.

(128) H. Triepel, VVDStRL 3 (1927), 51.

(129) G. Anschütz, VVDStRL 3 (1927), 47.

(130) H. Kelsen, VVDStRL 3 (1927), 53 f.

(131) A. Graf zu Dohna, Die Revolution als Rechtshruch und Rechtsschöpfung (Heidelberg, 1923); W. Schönfeld, ‘Die Revolution als Rechtsproblem’, AöR 51 (1927), 164 ff.; Herrfahrdt (n. 116).

(132) Very revealing on this point is E. R. Huber, ‘Verfassungswirklichkeit und Verfassungswert im Staatsdenken der Weimarer Zeit’, in Arbeiten zur Rechtsgeschichte: Festschrift für G. K. Schmelzeisen (Stuttgart, 1980), 126 ff.

(133) Freytagh-Loringhoven (n. 54), 18–20. On the attitude of the public see B. Assmus, ‘Republik ohne Chance?’ Legitimation und Akzeptanz der Weimarer Republik in der deutschen Tagespresse zwischen 1918 und 1923 (Berlin, 1994).

(134) C. Bornhak, Die Verfassung des deutschen Reiches vom 11. August 1919 (Munich, 1919; 2nd edn., Munich, 1921); K. Beyerle, Die Verfassung des Deutschen Reiches: Mit Einleitung, Randnoten und Sachregister versehen (Munich, 1919); F. Poetzsch, Handausgabe der Reichsverfassung vom 11. August 1919 (Berlin, 1919), 3rd edn. as ‘Handkommentar’ (Berlin, 1928) under the names Poetzsch-Heffter; E. Zweigert, Verfassung des Deutschen Reiches (Mannheim, 1919; 6th edn., 1922); K. Saenger, Die Verfassung des deutschen Reiches vom 11. August 1919 (Berlin, 1920); F. Frhr. Marschall von Bieberstein, Verfassungsrechtliche Reichsgesetze (Mannheim, 1924).

(135) Giese (n. 119), 8th edn. (Berlin, 1931).

(136) A. Arndt, Die Verfassung des Deutschen Reiches vom 11. August 1919: Mit Einleitung und Kommentar (Berlin, 1919; 3rd edn., 1927).

(137) O. Bühler, Die Reichsverfassung vom 11. August 1919, 3rd edn. (Leipzig, 1929); Poetzsch-Heffter (n. 134); L. Gebhard, Handkommentar zur Verfassung des Deutschen Reichs vom 11. August 1919 (Munich, 1932).

(138) Portions were published by Hedwig Hintze under the title Verfassungpolitische Entwicklungen in Deutschland und Westeuropa (Berlin, 1927).

(139) M. Stolleis, ‘Friedrich Giese’, in Juristen an der Universität Frankfurt, 117–27 (124), on his involvement in the Deutsche Staatspartei, founded in 1930.

(140) Poetzsch-Heffter (n. 134). As the title suggests, this was a pocket commentary with brief information about the history of the creation of the constitution and early practice.

(141) F. Stier-Somlo, Die Verfassung des deutschen Reiches vom 11. August 1919: Ein systematischer Üherblick (Bonn, 1919).

(142) W. Jellinek (n. 9).

(143) Die Grundgedanken der Reichsverfassung (Munich, 1920).

(144) Here I should also mention the account by A. Finger, a criminal law theorist from Halle, Das Staatsrecht des Deutschen Reiches (Stuttgart, 1923), the popularizing introduction by L. Waldecker, Deutsches Verfassungsrecht (Breslau, 1926), and H. Gmelin, Einführung in das Reichsverfassungsrecht (Leipzig, 1929). For an attempt at a visual presentation of state law, see H. Jahrreiß, System des deutschen Verfassungsrechts in Tafeln und Übersichten (Tübingen, 1930).

(145) G. Anschütz, Die Verfassung des Deutschen Reiches: Kommentar (1921, 14th edn., 1933; reprint, 1968); id., ‘Entstehung und Ausbau der Weimarer Reichsverfassung’, in Anschütz and Thoma i. 127 ff.

(146) O. Koellreutter on the 2nd edn. of 1921, AöR 43 (1922), 239–41 (240).

(147) G. Anschütz, Die VerfassungsUrkunde für den preußischen Staat vom 31. Januar 1850: Ein Kommentar für Wissenschaft und Praxis, vol. i (Berlin, 1912).

(148) H.-D. Rath, Positivismus und Demokratie: Richard Thoma 1874–1957 (Berlin, 1981); D. Drüll, Heidelberger Gelehrtenlexikon 1803–1932 (Berlin, 1986).

(149) H. Treiber and K. Sauerland, ed., Heidelberg im Schnittpunkt intellektueller Kreise: Zur Topographie der ‘geistigen Geselligkeit’ eines ‘Weltdorfes’: 1850–1950 (Opladen, 1995). See G. Anschütz, Aus meinem Leben, ed. W. Pauly (Frankfurt, 1993), and H. Dreier, ‘Ein Staatsrechtslehrer in Zeiten des Umbruchs: Gerhard Anschütz (1867–1948)’, ZNR 20 (1998), 28–48.

(150) As we have seen, Giese and Stier-Somlo advanced a different view, as did Wittmayer, for instance (n. 119).

(151) C. Bornhak, Grundriß des Deutschen Staatsrechts, 5th edn. (Leipzig, 1920; 7th edn., Leipzig, 1926); E. Hubrich, Das demokratische Verfassungsrecht des deutschen Reiches: Ein Lehrbuch (Greifswald, 1921); F. Giese, Grundriß des Reichsstaatsrechts, 5th edn. (Bonn, 1930), and Deutsches Staatsrecht (Berlin, 1930); W. Jellinek, Verfassung und Verwaltung des Reichs und der Länder (Leipzig, 1927); O. Meißner, Das Staatsrecht des Reichs und seiner Länder, 2nd edn. (Berlin, 1923); F. Stier-Somlo, Reichsstaatsrecht, vol. ii: Das geltende Reichsstaatsrecht (Berlin, 1927); Waldecker (n. 144).

(152) J. Hatschek, Institutionen des deutschen Staatsrechtes, vol. i: Das Reichsstaatsrecht (Berlin, 1923), vol. ii: Das preußische Verfassungsrecht (Berlin, 1924), vol. iii: Außer-preußisches Landesstaatsrecht (Berlin, 1926); Deutsches und preußisches Staatsrecht, 2 vols. (Berlin, 1922; 2nd edn., Berlin, 1930, revised and edited by P. Kurtzig).

(153) Der Geist der deutschen Reichsverfassung (Berlin, 1924).

(154) Anschütz, Aus meinem Leben (n. 149), 287.

(155) Die Grundrechte und Grundpflichten der Reichsverfassung, 3 vols. (Berlin, 1929 ff.).

(156) As Nipperdey (n. 155) emphasized in the Preface: ‘The only precondition was … that the author on principle—though by no means in all details—agreed with the thrust of the basic right in question and was thus able to develop the positive content of this right.’

(157) F. L. Neumann, H. C. Nipperdey, and U. Scheuner, eds., Handbuch der Theorie und Praxis der Grundrechte, 4 vols. (Berlin, 1958–62; starting with vol. ii, K. A. Bettermann joined the editorial team).

(158) G. Anschütz and R. Thoma, eds., Handbuch des Deutschen Staatsrechts, 2 vols. (Tübingen, 1930, 1932). A reprint, including a new essay and a review, was published under the editorial directorship of W. Pauly (Goldbach, 1998). Detailed reviews were written by E. Wolf in Deutsche Literaturzeitung (1930), 1770–4, and H. Nawiasky in AöR 57 (1930), 235 f.; 59 (1931), 298–302.

(159) K. Rennert, Die ‘geisteswissensckaftliche Richtung’ in der Staatsrechtslehre der Weimarer Republik (Berlin, 1987), 35 ff.

(160) Robbers (n. 7).

(161) H. Gerber, Minderheitenrecht im Deutschen Reich (Berlin, 1929); R. Laun, ‘Volk und Nation: Selbstbestimmung. Nationale Minderheiten’, in Anschütz and Thoma i, § 21, with extensive references.

(162) F. Poetzsch-Heffter, Grundgedanken der Reichsreform (Berlin, 1931); Apelt, 374 ff., 386 ff.

(163) H. Heller, ‘Politische Demokratie und soziale Homogenität (1928)’, in Gesammelte Schriften, ed. M. Drath et al., ii, 2nd edn. (Tübingen, 1992), 421–33 (427).

(164) C. Schmitt, ‘Das Reichsgericht als Hüter der Verfassung (1929)’, in his VA, 67 f.

(165) H. Heller, ‘Ziele und Grenzen einer deutschen Verfassungsreform’, Neue Blätter für den Sozialismus (1931), also in Gesammelte Schriften ii (n. 163), 411–17 (413).

(166) H. Heller, ‘Politische Demokratie und soziale Homogenität’ (n. 163), 424.

(167) M. Baldus, Die Einheit der Rechtsordnung: Bedeutungen einer juristischen Formel in Rechtstheorie, Zivil- und Staatsrechtswissenschaft des 19. und 20. Jahrhunderts (Berlin, 1995), esp. 132 ff. on Kelsen.

(168) K. Waechter, Studien zum Gedanken der Einheit des Staates: Über die rechtsphilosophische Auflösung der Einheit des Subjekts (Berlin, 1994).

(169) See, for example, the essays included in vol. ii, 371 ff., of his Gesammelte Schriften: ‘Freiheit und Form in der Reichsverfassung’, ‘Das Berufsbeamtentum in der deutschen Demokratie’, ‘Die Neuordnung des Reiches im Verhältnis zu seinen Ländern’, ‘Ziele und Grenzen einer deutschen Verfassungsreform’.

(170) C. Schmitt, Der Hüter der Verfassung (Tübingen, 1931), Part II.

(171) Postscript to the reprint of Legalität und Legitimität (1932), in his VA, 345. The sentence quoted above attests once again to Schmitt's typical conjoining of intelligent analysis and deep-seated idiosyncracies; after all, that the presidential system really needed to be saved from the positivism of Gerhard Anschütz is hardly more than a bad joke.

(172) H. Triepel, ‘Der Weg der Gesetzgebung nach der neuen Reichsverfassung’, AöR 39 (1920), 456–546; Apelt, 244 ff. Of the newer literature see O. Jung, Direkte Demokratie in der Weimarer Republik: Die Fälle ‘Aufwertung’, ‘Furstenenteignung’, ‘Panzerkreuzerverbot und Youngplan’ (Frankfurt, 1989); id., Volksgesetzgebung: Die ‘Weimarer Erfahrungen’ aus dem Fall der Vermögensauseinandersetzungen zwischen Freistaaten und ehemaligen Fürsten (Hamburg, 1990).

(173) Apelt, 237 ff. (238).

(174) F. Poetzsch-Heffter, ‘Vom Staatsleben unter der Weimarer Verfassung’, JöR 13 (1925), 227 ff.; 17 (1929), 139 ff.; 21 (1933/34), 201 ff.

(175) M. Frehse, ‘Ermächtigungsgesetzgebung im Deutschen Reich 1914–1933’, law dissertation, University of Kiel, 1985.

(176) For the historical consequences from these antinomies see F. K. Fromme, Von der Weimarer Verfassung zum Bonner Grundgesetz: Die verfassungspolitischen Folgerungen des parlamentarischen Rates aus Weimarer Republik und nationalsozialistischer Diktatur (Tübingen, 1960).

(177) Anschütz, WRV, Section 5, 358 ff.; W. Jellinek, ‘Das einfache Reichsgesetz’, in Anschütz and Thoma i, § 72; Apelt, 237 ff.

(178) G. Leibholz, Das Wesen der Repräsentation und der Gestaltwandel der Demokratie im 20. Jahrhundert (1929; 2nd edn., Berlin, 1960).

(179) G. Leibholz, ‘Die Wahlrechtsreform und ihre Grundlagen’, VVDStRL 7 (1932), 159–90.

(180) C. Schmitt, ‘Inhalt und Bedeutung des zweiten Hauptteils der Verfassung’, in Anschütz and Thoma, ii, § 101.

(181) C. Schmitt: ‘Zehn Jahre Reichsverfassung’ (1929), in his VA, 34–40; ‘Freiheitsrechte und institutionelle Garantien der Reichsverfassung’ (1931), ibid. 140 ff.; ‘Grundrechte und Grundpflichten (1932)’, ibid. 181 ff.

(182) This observation is not contradicted by the fact that Carl Schmitt was occasionally more moderate than the representatives of special interests and declared—even though he underscored the institutional guarantee of the professional civil service—that salary cuts were permissible: ‘Wohlerworbene Beamtenrechte und Gehaltskürzungen’, DJZ (1931), cols. 917–21; also in VA, 174–80. The polemic of the civil servant lobby against this essay also reveals the disappointment over discovering that he, of all people, was not reliable.

(183) C. Gusy, Die Lehre vom Parteienstaat in der Weimarer Republik (Baden-Baden, 1993); Seog-Yun Song, Politische Parteien und Verbände in der Verfassungrechtslehre der Weimarer Republik (Berlin, 1996).

(184) G. Radbruch, ‘Die politischen Parteien im System des deutschen Verfassungsrechts’, in Anschütz and Thoma i, § 25. Detailed discussion in Gusy (n. 183), 57 ff.; H. Boldt, ‘Die Stellung von Parlament und Parteien in der Weimarer Reichsverfassung. Verfassungstheorie und Verfassungswirklichkeit’, in E. Kolb and W. Mühlhausen, eds., Demokratie in der Krise: Parteien im Verfassungssystem der Weimarer Republik (Munich, 1997), 19–58.

(185) W. J. Mommsen, ‘Die latente Krise des wilhelminischen Reiches’, Militärgeschichtliche Mitteilungen, 1 (1974), 7–28; a comprehensive account now in his Bürgerstolz und Weltmachtstreben: Deutschland unter Wilhelm II. 1890–1918 (Berlin, 1995), esp. 87 ff.

(186) H. Preuß, ‘Die Organisation der Reichsregierung und die Parteien’ (1890), in his Staat, Recht und Freiheit (n. 49), 172 ff.; F. Naumann, Die politischen Parteien (Berlin, 1910).

(187) M. Weber, ‘Wahlrecht und Demokratie in Deutschland’ (1917), in his Ges. polit. Schr. (n. 38), 245–91; R. Michels, Zur Soziologie des Parteiwesens in der modernen Demokratie: Untersuchungen über die oligarchischen Tendenzen des Gruppenlebens (Leipzig, 1911; 2nd edn., 1922). On this see C. Senigaglia, ‘Analysen zur Entstehung des Massenparteien und zu ihrem Einfluß auf das Parlament: Ostrogorski, Michels, Weber’, Parliaments, Estates, Representation, 15 (1995), 159–84.

(188) Jellinek (n. 114), 113 ff.; R. Schmidt, Allgemeine Staatslehre (Leipzig, 1901), 243.

(189) R. v. Laun, ‘Der Staatsrechtslehrer und die Politik’, AöR 43 (1922), 145–99. My own view on this in VVDStRL 44 (1984), 7–45.

(190) See, for example, R. Thoma, ‘Der Begriff der modernen Demokratie in seinem Verhältnis zum Staatsbegriff: Prolegomena zu einer Analyse des demokratischen Staates der Gegenwart’, in M. Parlyi, ed., Erinnerungsgabe für M. Weber, vol. ii (Munich, 1923), 37 ff.; id., ‘Staat’, in L. Elster et al., eds., Handwörterbuch der Staatswissenschaften, 4th edn., vol. vii (Jena, 1926), 748; H. Kelsen, ‘Demokratie’ (1927), in H. Klecatsky, R. Marcic, and H. Schambeck, eds., Die Wiener Rechtstheoretische Schule (Salzburg, Munich, 1968), ii. 1743–76; Radbruch (n. 184); H. Heller, Staatslehre (Leiden, 1934), 247.

(191) On the obstructionist politics of the Austrian parties prior to 1914 see E. Hanisch, Der lange Schatten des Staates: Österreichische Gesellschaftsgeschichte im 20. Jahrhundert (Vienna, 1994).

(192) F. v. Calker, Wesen und Sinn der politischen Parteien, 2nd edn. (Tübingen, 1930), 8, 39: ‘The idea of the party separates, the idea of politics unites.’

(193) J. Beyer, Die Ständeideologien der Systemzeit und ihre Überwindung (Darmstadt, 1941), a National Socialist work supervised by Reinhard Höhn and directed against Othmar Spann. In my estimation it offers the best overview of the entire discussion and describes its withering after 1933. See now G. A. Ritter, ‘Politische Repräsentation durch Berufsstände: Konzepte und Realität in Deutschland 1871–1933’, in Festschrift für E. Kolb (Berlin, 1998), 261–82.

(194) A. Mohler, Die Konservative Revolution in Deutschland 1918–1932: Ein Handbuch, 4th edn. (Darmstadt, 1994); S. Breuer, Anatomie der konservativen Revolution (Darmstadt, 1993); R. P. Sieferle, Die Konservative Revolution: Fünf biographische Skizzen (Frankfurt, 1995).

(195) C. Schmitt, VL, 234 f.

(196) C. Schmitt, VL, 235.

(197) C. Schmitt, Die geistesgeschichtliche Lage des heutigen Parlamentarismus (1923, 5th edn., Berlin, 1979).

(198) Leibholz (n. 178), and the excellent critique by H. Hofmann, Repräsentation: Studien zur Wort- und Begriffsgeschichte von der Antike bis ins 19. Jahrhundert, 3rd edn. (Berlin, 1998), 15–37.

(199) Schmitt (n. 170), 88.

(200) Ibid. 89.

(201) See also PrOVGE 76, 473–7, where it is emphasized that the freedom of bureaucratic institutions from party influences ‘must be maintained under all circumstances, and the contrary opinion must be resolutely rejected’ (476).

(202) A representative example is Thoma, ‘Staat’ (n. 190); with a more clearly anti-party effect H. Triepel, Staatsverfassung und politische Parteien (Berlin, 1927).

(203) Schmitt (n. 170); likewise J. Popitz, ‘Wer ist der Hüter der Verfassung’, Germania, 14 Apr. 1931, reprinted in Schmitt, VA, 101–5.

(204) C. Gusy, ‘Die Grundrechte in der Weimarer Republik’, ZNR (1993), 163 ff.

(205) J.-D. Kühne, Die Reichsverfassung der Paulskirche: Vorbild und Verwirklichung im späteren deutschen Rechtsleben (Frankfurt, 1985; 2nd revised and expanded edition, Neuwied, 1998); for an overview see now K. Kröger, Grundrechtsentwicklung in Deutschland: Von ihren Anfängen bis zur Gegenwart (Tübingen, 1998), 19–27, 46–68.

(206) G. Jellinek: Die Erklärung der Menschen- und Bürgerrechte, 3rd edn. (Munich, 1919); System der subjektiven öffentlichen Rechte (Tübingen, 1905; 2nd edn., 1919; reprint, Aalen, 1964).

(207) F. Giese, Die Grundrechte (Tübingen, 1905).

(208) Anschütz (n. 145), 91 ff.; H. Planitz, ‘Zur Ideengeschichte der Grundrechte’, in Nipperdey iii. 597 ff.

(209) A sharp attack on basic rights by W. Hofacker, Grundrechte und Grundpflichten der Deutschen (Stuttgart, 1926).

(210) Anschütz, WRV, ‘Vorbemerkung vor Artikel 109 ff.’; R. Thoma, ‘Die juristische Bedeutung der grundrechtlichen Sätze der deutschen Reichsverfassung im allgemeinen’, in Nipperdey i. 1–53; Thoma, ‘Das System der subjektiven öffentlichen Rechte und Pflichten’, in Anschütz and Thoma ii, § 102; Schmitt, VL, § 14.

(211) VVDStRL 3 (1927), with papers by Kaufmann and Nawiasky; VVDStRL 4 (1928), with papers by Rothenbücher and Smend.

(212) Thoma, ‘Die juristische Bedeutung’ (n. 210), formulated the rule that if in doubt, the basic rights should be interpreted in such a way that ‘the legal efficacy of the norm in question can exert itself most strongly’. Similar in tendency, if different in intent, the previous work by Smend, Verfassung und Verfassungsrecht (n. 60), Part 3, 1: Die Auslegung der Verfassung als Games.

(213) VVDStRL 4 (1928), 89.

(214) Thoma, ‘Die juristische Bedeutung’ (n. 210), 9.

(215) Smend (n. 60), Part 3, 4; for a critical response see Thoma, ‘Die juristische Bedeutung’ (n. 210), 9 ff. See also C. H. Ule, ‘Über die Auslegung der Grundrechte’, AöR 60 (1932), 37 ff.

(216) Especially revealing is the debate that followed the papers by Kaufmann and Nawiasky, VVDStRL 4 (1928); Kaufmann and Triepel's assigning of supervisory power to judges was opposed by Thoma, ‘Die juristische Bedeutung’ (n. 210), 22 f.; M. Rümelin, Die Gleichheit vor dem Gesetz (Tübingen, 1928); Thoma, in turn, was opposed by G. Leiholz, ‘Die Gleichheit vor dem Gesetz: Ein Nachwort zur Auslegung des Art. 109 Abs. 1 der Reichsverfassung’, AöR 51 (1927), 1–36, and F. Stier-Somlo, ‘Artikel 109’, in Nipperdey i. 158–218 (198 ff.); finally, Anschütz, WRV, 524 ff.

(217) Anschütz, WRV, 528.

(218) H. Nawiasky, ‘Die Gleichheit vor dem Gesetz im Sinne des Art. 109 der Reichsverfassung’, VVDStRL 3 (1927), 40 ff.

(219) R. Thoma, VVDStRL 3 (1927), 59.

(220) Meyer and Anschütz (n. 112), 690 ff.; Anschütz, WRV, 402 ff.; Thoma: in Nipperdey i. 38 ff., in Anschütz and Thoma i. 182 f., 193 f., and in Anschütz and Thoma ii. 153 ff.; W. Jellinek: Grenzen der Verfassungsgesetzgebung (Berlin, 1931), and in Anschütz and Thoma ii. 182 ff.; K. Loewenstein, Erscheinungsformen der Verfassungsänderung: Verfassungsdogmatische Untersuchungen zu Art. 76 der Reichsverfassung (Tübingen, 1931); all with additional references.

(221) H. Triepel, ‘Das Abdrosselungsgesetz’, DJZ 31 (1926), cols. 845–50; C. Bilfinger: Der Reichssparkommissar (Berlin, 1928), 16 ff., ‘Verfassungsumgehung: Betrachtungen zur Auslegung der Weimarer Verfassung’, AöR 50 (1926), 163–91; ‘Nationale Demokratie als Grundlage der Weimarer Verfassung’, ceremonial speech, Halle, 1929; O. Bühler, Die Reichsverfassung, 3rd edn. (Leipzig, 1929), 103.

(222) Schmitt: (n. 164), 113, and ‘Legalität und Legitimität’ (1932), in his VA, 302 f.

(223) O. Koellreutter, Parteien und Verfassung im heutigen Deutschland (Stuttgart, 1932), 32.

(224) As, for example, Bühler did (n. 221).

(225) Anschütz, WRV, bibliographic overview preceding Article 41.

(226) Anschütz, WRV, 245; H. Wandersleb, Der Präsident in den Vereinigten Staaten von Nordamerika, Frankreich und im Deutschen Reiche (Berlin, 1922); J. Lukas, Die organisatorischen Grundgedanken der neuen Reichsverfassung (Tübingen, 1920).

(227) H. Pohl, ‘Wahl, Amtsdauer und persönliche Rechtsstellung des Reichspräsidenten’, in Anschütz and Thoma i. § 41, and ‘Die Zuständigkeiten des Reichspräsidenten’, in Anschütz and Thoma i. § 42, with extensive references; likewise, Anschütz, WRV, 245 f.; K. Strupp, ‘Das Ausnahmerecht der Länder nach Art. 48 IV der Reichsverfassung’, AöR 44 (1923), 182–205.

(228) F. Stier-Somlo, ‘Die Reform des Reichsrechts und die Problematik der rechtlichen Stellung des Reichspräsidenten’, AöR 59 (1931), 7 ff.

(229) E. R. Huber, ‘Carl Schmitt in der Reichskrise der Weimarer Endzeit’, in H. Quaritsch, ed.,Complexio oppositorum: Über Carl Schmitt (Berlin, 1988), 33–50; D. Grimm, ‘Verfassungserfüllung—Verfassungsbewahrung—Verfassungsauflösung: Positionen der Staatsrechtslehre der Weimarer Republik’, in H. A. Winkler, ed., Die deutsche Staatskrise 1930–1933: Handlungsspielräume und Alternativen (Munich, 1992), 183 ff.

(230) E. Jacobi and C. Schmitt, ‘Die Diktatur des Reichpräsidenten’, VVDStRL 1 (1924), 63 ff.

(231) A. Kurz, Demokratische Diktatur? Auslegung und Handhabung des Artikels 48 der Weimarer Verfassung 1919–1925 (Berlin, 1992), describes the more than 100 instances in which Ebert invoked Article 48 and the constitutional discussion it sparked.

(232) U. Scheuner, ‘Die Anwendung des Art. 48 der Weimarer Reichsverfassung unter der Präsidentschaft von Ebert und Hindenburg’, in Staat, Wirtschaft und Politik in der Weimarer Republik: Festschrift für Heinrich Brüning (Berlin, 1967), 249 ff.; Huber vii. 731 ff.

(233) C. Schmitt, ‘Das Reichsgericht als Hüter der Verfassung’, (1929), in his VA, 63–100. On the conflict between the Staatsgerichtshof and the cabinet of Hermann Müller see the detailed account in A. Koenen, Der Fall Carl Schmitt (Darmstadt, 1995), 122 ff.

(234) C. Schmitt, ‘Der Hüter der Verfassung’, AöR 55 (1929), 161–237, and Der Hüter der Verfassung (n. 170).

(235) W. Kronheimer, ‘Der Streit um den Art. 48 der Reichsverfassung’, AöR 46 (1924), 304 ff.; H. Nawiasky, ‘Die Auslegung des Art. 48 der Reichsverfassung’, AöR 48 (1927), 1 ff.; K. Loewenstein, ‘Die Verfassungsmäßigkeit der Notverordnungen vom Juli und August 1931’, AöR 60 (1931–2), 124 ff., and ‘Die parlamentarische Verlängerung der Amtsdauer des Reichspräsidenten’, Bayerische Verwaltungsblätter (1932), 57 ff.

(236) Schmitt (n. 164), 159.

(237) Jacobi and Schmitt (n. 230), 139, last sentence.

(238) Press release of the Association on 29 October 1931: ‘[I[t is the task of the governments of the Reich and the Länder to ensure, more strictly than they have so far, that the device of the emergency decree is not abused through the insertion of decrees that are not even indirectly related to protecting public safety and order or resolving the present crisis’, VVDStRL 7 (1932), 1.

(239) On this see Huber vii. 731 ff., 737 ff., with a retrospective rationalization and systematization of the various ‘kinds and tasks of the presidential regime in the structural crisis of the Weimar state’.

(240) Mohler (n. 194); Breuer (n. 194).

(241) ‘Gesetz über den Staatsgerichtshof v. 9. Juli 1921’, RGBl 905. The best account of where opinion stood at the end of the Republic is by E. Friesenhahn, ‘Die Staatsgerichtsbarkeit’, in Anschütz and Thoma ii, § 98.

(242) Provided the Länder had not established their own high courts with concrete jurisdiction over the contested matter. See W. Eiswaldt, ‘Die Staatsgerichtshöfe in den deutschen Ländern und Art. 19 RVerf.’, law dissertation (Kiel, 1927); H. Nawiasky, ‘Reichsverfassungsstreitigkeiten’, AöR 51 (1927), 130 ff.; H. J. Stolzmann, ‘Zur geschichtlichen Entwicklung des Rechts der Verfassungsstreitigkeiten’, AöR 55 (1929), 355 ff.

(243) Private law disputes were matters for the regular courts, with the exception of property disputes in territorial adjustments (Art. 19, Sect. 1.18, Sect. 7).

(244) Anschütz, WRV, 370 with additional references; E. v. Hippel, ‘Über die Verbindlichkeit der Gesetze’, AöR 57 (1930), 86 ff.

(245) A. Zeiler, Ein Gerichtshof für bindende Gesetzesauslegung (Munich, 1911); on the discussion over a Reich Administrative Court see W. Kohl, Das Reichsverwaltungsgericht (Tübingen, 1991).

(246) H. Triepel, ‘Streitigkeiten zwischen Reich und Ländern’, in Berliner Festgabe für W. Kahl (Berlin, 1923), 51–118.

(247) G. Anschütz and Dr. Mende, ‘Empfiehlt es sich, die Zuständigkeit des Staatsgerichtshofs für andere als die in Art. 19, Abs. 1 RVerf bezeichneten Verfassungsstreitigkeiten auszudehnen’, DJT (1926), ii. 193 ff.; on this see Nawiasky (n. 242); C. Schmitt, ‘Das Reichsgericht als Hüter der Verfassung’ (1929), in his VA, 63–109 (64 n. 5) with reference to the 33rd and 34th Meeting of German Jurists in 1924 and 1926, respectively.

(248) Detailed discussion in Anschütz, WRV, 165–70.

(249) Triepel and Kelsen, VVDStRL 5 (1929), 2–29, 30–88. On this see especially H. Wendenburg, Die Debatte um die Verfassungsgerichtsbarkeit und der Methodenstreit der Staatsrechtslehre in der Weimarer Zeit (Göttingen, 1984).

(250) C. Schmitt, ‘Das Reichsgericht als Hüter der Verfassung’ (1929), in his VA, 63–100.

(251) By way of a stopover in AöR 55 (1929), 161–237, he expanded his ideas into the monograph Der Hüter der Verfassung (Tübingen, 1931). In 1958, Schmitt recapitulated with a sense of satisfaction: ‘The formula of the Reich president as the “guardian of the constitution” thereby became the constitutional slogan of the presidential regime’ (VA, 100). He was fully aware that the formula had been created by the Staatsgerichtshof itself, not by him: RG 118, appendix p. 4*, Entsch. v. 15.9.1927.

(252) H. Kelsen, Wer soil Hüter der Verfassung sein? (Berlin, 1931); likewise K. G. Hugelmann, ZöR 13 (1933), 279. See on this A. Somek, ‘Politischer Monismus versus formalistische Aufklärung: Zur Kontroverse zwischen Carl Schmitt und Hans Kelsen’, in S. L. Paulson and R. Walter, eds., Untersuchungen zur reinen Rechtslehre (Vienna, 1986).

(253) It is Wendenburg's achievement to have brought this out in his monograph (n. 249).

(254) Articles 89, 137 ff. of the Austrian Federal Constitution of 1 October 1920; VerfassungsgerichtshofG v. 18.12.1925; see L. Adamovich, Die Prüfung der Gesetze und Verordnungen durch den österreichischen Verfassungsgerichtshof (Vienna, 1927).

(255) G. Jellinek, Die Lehre von den Staatenverbindungen (Vienna, 1882; reprint, ed. and with introd. by W. Pauly, Goldbach, 1996); Public Law, 341.

(256) H. Nawiasky, Der Bundesstaat als Rechtsbegriff (Tübingen, 1920); see also H. Kelsen, Allgemeine Staatslehre (Berlin, 1925), §§ 27–31.

(257) R. Thoma, ‘Das Reich als Bundesstaat’, in Anschütz and Thoma i. 172 n. 6.

(258) Summarized in R. Thoma, ‘Das Reich als Bundesstaat’, in Anschütz and Thoma i. 169 ff.; see also K. Behnke, Die Gleichheit der Länder im deutschen Bundesstaatsrecht (Berlin, 1926), 64 ff., who focused on the new constitutional situation and the clear structure of authority.

(259) A different opinion was put forth by Poetzsch-Heffter (n. 134), 3rd edn., 1928, No. 4e on Article 45 of the constitution; see also J. Heckel, ‘Verträge des Reiches und der Länder mit auswärtigen Staaten nach der Reichsverfassung’, AöR 46 (1924), 209–24.

(260) M. W. Hebeisen, Souveränität in Frage gestellt: Die Souveränitätslehren von Hans Kelsen, Carl Schmitt und Hermann Heller im Vergleich (Baden-Baden, 1995).

(261) H. Bauer, Die Bundestreue: Zugleich ein Beitrag zur Dogmatik des Bundesstaatsrechts und zur Rechtsverhältnislehre (Tübingen, 1992), 56 ff., 73 ff., 81 f.

(262) K. Bilfinger, Der Einfluß der Einzelstaaten auf die Bildung des Reichswillens (Tübingen, 1923), and in VVDStRL 1 (1924), 35 ff.

(263) Smend, Verfassung (n. 60), 116.

(264) Huber vi. 741 ff., vii. 118–22, 179 ff., 324 ff., 376 ff., 383 ff., 1015 ff.

(265) Huber vii. 210 ff., 257, 347 ff., 364 ff., 469 ff; Poetzsch-Heffter (n. 174).

(266) Bauer (n. 261), 91 ff.

(267) Summary account in G. Schulz, ‘Triebkräfte und Ziele der Reichsreform in der Weimarer Republik’, in R. Morsey, ed., Verwaltungsgeschichte: Aufgaben, Zielsetzungen, Beispiele (Berlin, 1977), 71 ff.; W. Frotscher, DVG iv. 111 (bibliography), 130 ff.

(268) R. Smend, ‘Hochschule und Parteien’ (1930), in his Staatsrechtliche Abhandlungen, 2nd edn. (1968), 277 (280).

(269) Membership or the relevant voting record was certainly of importance also to their scholarly work in the case of Hubrich (DVP), Triepel (DNVP), Smend (DNVP), Helfritz (DNVP), Freytagh-Loringhoven (DNVP), Giese (DDP, DStP (German State Party)), Koellreutter (first DVP, after 1932 NSDAP), Ritterbusch, Höhn, Walz (all NSDAP after 1932), Heller (SPD), Bredt (middle-class parties), Anschütz (DDP), Thoma (DDP), and Preuß (DDP).

(270) After 1933, many public law theorists accordingly tried to invoke this involvement to prove that their orientation had always been national and social. Conversely, the National Socialists, if they mistrusted someone or wanted to bring him down, reproached him for his earlier involvement, as they did, for example, with Carl Schmitt in 1936–7 in the magazine Das Schwarze Korps. This was continued after 1945, with all the embarrassments and strategies of exoneration and incrimination that entailed.

(271) Ρreußen contra Reich vor dem Staatsgerichtshof: Mit einem Vorwort von Ministerialdirektor Dr. Brecht (Berlin, 1933; reprint, Glashütten, 1976) = Stenogrammbericht der Verhandlungen vor dem Staatsgerichtshof in Leipzig vom 10.–14. und vom 17. Oktober 1932; the crucial passages can also be found in Anschütz, WRV, 772–6. See also Huber vii. 1015 (bibliography), on the preliminary proceedings, vii. 1042, on the main proceedings, vii. 1120 ff.; R. Morsey, ‘Zur Geschichte des “Preußenschlags” am 20. Juli 1932’, VjHZG 9 (1961), 430; W. Benz, ‘Papens Staatsstreich und die Länder’, VjHZG 18 (1970), 320.

(272) K. D. Bracher, Die Auflösung der Weimarer Republik, 5th edn. (Villingen, 1971), 510 ff.; Huber vii. 1121, 1125 ff., who unmistakably recreates once again the situation that gave rise to his essay ‘Reichsgewalt und Staatsgerichtshof’ (1932); H. Grund, ‘Preußenschlag’ und Staatsgerichtshof im Jahre 1932 (Baden-Baden, 1976).

(273) Carl Schmitt, ‘Die Verfassungsmäßigkeit der Bestellung eines Reichskommisars für das Land Preußen’, DJZ 37 (1932), cols. 953 ff.; K. Bilfinger, ‘Exekution, Diktatur und Föderalismus’, DJZ 37 (1932), cols. 1017 ff., and ‘Reichsexekution’, DJZ 38 (1933), cols. 145 ff. See also H. Muth, ‘Carl Schmitt in der deutschen Innenpolitik des Sommers 1932’, HZ Beiheft 1 (1971), 75 ff.; E. R. Huber, ‘Carl Schmitt in der Reichskrise der Weimarer Endzeit’, in Quaritsch (n. 229), 33–50, who also discusses his own participation. Further details in the correspondence between Schmitt and Huber (HstA NRW Düsseldorf).

(274) J. Heckel, ‘Das Urteil des Staatsgerichtshofs vom 25. Oktober 1932 in dem Verfassungsstreit Reich-Preußen’, AöR 62 (1933), 183–246; H. Triepel, ‘Die Entscheidung des Staatsgerichtshofs im Verfassungsstreit zwischen Preußen und dem Reich’, DJZ 37 (1932), cols. 1501 ff.

(275) F. Giese, ‘Zur Verfassungsmäßigkeit der vom Reich gegen und in Preußen geschaffenen Maßnahmen’, DJZ 37 (1932), cols. 1021 ff.; A. Schüle, ‘Einstweilige Verfügungen in der Staatsgerichtsbarkeit: Zu dem Urteil des Reichsgerichtshofes vom 25. Juli 1932’, AöR 62 (1933), 163; H. Nawiasky, ‘Zum Leipziger Urteil’, BayVBl 80 (1932), 338 ff.; on the opinions of Hans Peters see L. v. Trott zu Solz, Hans Peters und der Kreisauer Kreis (Paderborn, 1997), 80 ff.

(276) H. Mayer, ‘Verfassungsbruch oder Verfassungsschutz? Staatsrechtliche Bemerkungen zum Konflikt Reich-Preußen’, Justiz 7 (1931–2), 545 ff.; O. Kirchheimer, ‘Die Verfassungslehre des Preußenkonflikts’, Gesellschaft 9 (1932), 194 ff.; H. Kelsen, ‘Das Urteil des Staatsgerichtshofs vom 25. Oktober 1932’, Justiz 8 (1932), 65 ff.; L. Waldecker, ‘Zum 10. Oktober 1932’, Justiz 8 (1932), 22 ff.; W. Jellinek, ‘Zum Konflikt zwischen Preußen und dem Reich’, RverwBl 53 (1932), 901 ff.; Poetzsch-Heffter (n. 174), 1933–4, 201 ff.

(277) See also the perspective of Hermann Badt, who was directly involved in the events: Im Streit für die Weimarer Republik: Stationen im Leben des Hermann Badt (Berlin, 1992), 260 ff. Of great interest also are the letters written by Carl Bilfinger, who was working on the other side with Carl Schmitt, between 27 July and 15 December 1932: Papers of C. Schmitt, HstA NRW. In the final analysis his goal was to eliminate the ‘federal state of parties’ (letter of 24 July 1932).

(278) (Gleichschaltung literally means ‘putting into the same gear’. The term was used to describe the moves by the NSDAP to force all political and other activities to fall in line with the party's ideas.) ‘Vorläufiges Gesetz zur Gleichschaltung der Länder mit dem Reich vom 31.3.1933’, RGBl i. 153; ‘Zweites Gesetz zur Gleichschaltung der Länder mit dem Reich vom 7.4.1934’, RGBl i. 173; ‘Gesetz über den Neuaufbau des Reichs vom 30.1.1934’, RGBl i. 75. In a letter by E. R. Huber to Carl Schmitt, dated 23 July 1933, Huber recalls the events of the previous year ‘precisely because they were a harbinger’ (papers of Carl Schmitt, HstA NRW).

(279) Poetzsch-Heffter (n. 174), 1929, 1–141; id., Grundgedanken der Reichsreform (Munich, 1931); id., Der künftige Finanzausgleich zwischen Reich, Ländern und Gemeinden (Berlin, 1932).

(280) For a biography see especially A. Brecht, Aus nächster Nähe: Lehenserinnerungen 1884–1927 (Stuttgart, 1966); id., Mit der Kraft des Geistes: Lehenserinnerungen. Zweite Hälfte 1927–1967 (Stuttgart, 1967).

(281) Reich Minister of the Interior, ed., Verfassungsausschuß der Länderkonferenz, 7 vols. (Berlin, 1929–30); F. A. Medicus, Reichsreform und Länderkonferenz: Die Beratungen und Beschlüsse der Länderkonferenz und ihrer Ausschüsse (Berlin, 1930); Poetzsch-Heffter (n. 174), and ‘Die Reichsreform seit dem Abschluß der Länderkonferenz’, DJZ 38 (1933), cols. 8 ff.; of interest also is the account by W. Apelt, who was himself involved, Jurist im Wandel der Staatsformen (n. 53), 162 ff.

(282) For example, a series of contributions (Holborn, Poetzsch-Heffter, Leiholz, Nawiasky, Kitz, Goeppert) in RuPrVerwBl 53 (1932), 921 ff., and in DJZ 38 (1933), cols. 3 ff. (Holborn, Poetzsch-Heffter, Grimm, Simons, R. Schmidt, E. Jacobi, A. Hensel, Huber, Bilfinger), as well as C. Schmitt, ‘Die Stellvertretung des Reichspräsidenten’, DJZ 38 (1933), cols. 27 ff.; W. Jellinek, ‘Verfassungsreform im Rahmen des Möglichen’, Reich und Länder, 6 (1932), 267 ff., and ‘Verfassungsrettung’, Reich und Länder, 7 (1933), 1 ff.; H. Heller, ‘Ziele und Grenzen einer deutschen Verfassungsreform’, Neue Blätter für den Sozialismus, 2 (1931), 576–80 (Ges. Schr. ii. 411–17); F. Glum, ‘Vorschläge zur Änderung des organisatorischen Teils der Reichsverfassung’, DJZ 37 (1932), cols. 1309 ff.; H. Herrfahrdt, Der Aufbau des neuen Staates (Berlin, 1932).

(283) References in G. Schulz, Zwischen Demokratie und Diktatur: Verfassungspolitik und Reichsreform in der Weimarer Republik, vol. i: Die Periode der Konsolidierung und der Revision des Bismarckschen Reichsaufbaus 1919–1930, 2nd edn. (Berlin, 1987), 215 ff.; C. Gusy, ‘Selbstmord oder Tod? Die Verfassungsreformdiskussion der Jahre 1930–1932’, ZfPol 40 (1993), 393–417, and Die Weimarer Reichsverfassung (Tübingen, 1997).

(284) H. Herrfahrdt, Die Kabinettsbildung nach der Weimarer Verfassung unter dem Einfluß der politischen Praxis (Berlin, 1927), put forth the thesis that Article 54 of the constitution limited the power of voting a government ouf of office. A contrary opinion by Anschütz, WRV, 14th edn. (1933), 322 f. See also K. Rothenbücher in ZöR 7 (1928), 329; F. Glum in AöR 55 (1928), 442; R. Thoma in Anschütz and Thoma i. 509.

(285) Gusy, Die Weimarer Reichsverfassung (n. 283), 403 ff.

(286) J. Heckel, ‘Diktatur, Notverordnungsrecht, Verfassungsnotstand mit besonderer Rücksicht auf das Budgetrecht’, AöR 61 (1932), 257–338. On this see Huber vi. 702 ff.

(287) Huber (n. 273), 33–50. This evidence can be supplemented by the relevant letters from Huber to Carl Schmitt: Papers of Carl Schmitt, HStA NRW, Sign. RW 265–6257–60.

(288) Grimm (n. 229), 183 ff.

(289) Gusy (n. 283), 405.

(290) C. Schmitt, ‘Legalität und Legitimität’ (1932), in his VA, 344.

(291) Schmitt, ibid, 286, described the events as the model case of the legal revolution: ‘He would be allowed, in a legal manner, to close behind him the door of legality through which he entered, and to treat his party-political opponent, who might then be kicking against the locked door, as a common criminal.’

(292) Kaufmann, Das Wesen (n. 62), 231.