tt
7
Carl Schmitt
7
7
C onstit u tional the ory
Carl Schmitt
Constitutional theory
Translated and edited by Jeffrey Seitzer
Foreword by Ellen Kennedy
Duke University Press Durham and London 2008
© 2008 Duke University Press
All rights reserved
Printed in the United States on acid-free paper
Designed by C. H. Westmoreland
Typeset in Warnock Pro by Tseng Information Systems, Inc.
Library of Congress Cataloging-in-Publication Data
Schmitt, Carl, 1888–1985.
[Verfassungslehre. English]
Constitutional theory / translated and edited by Jefrey Seitzer;
foreword by Ellen Kennedy.
p. cm.
Includes bibliographical references and index.
isbn-13: 978-0-8223-4011-9 (cloth : alk. paper)
isbn-13: 978-0-8223-4070-6 (pbk. : alk. paper)
1. Constitutional law—Germany. 2. Constitutional law.
I. Seitzer, Jefrey. II. Title.
kk4450.s3613 2007
342.43—dc22 2007026690
he irst edition was published in German as Verfassungslehre by Duncker und Humblot, with all rights reserved
© 1928 Duncker und Humblot, Munich and Leipzig.
for
Bob and Sherry Seitzer
Rob and Aleta Smith
Contents
Foreword Ellen Kennedy xv
Translator’s Preface xvii
An Introduction to Carl Schmitt’s Constitutional heory: Issues and
Context Jefrey Seitzer and Christopher hornhill 1
C o n stit u tio n a l the o ry
Schmitt’s Preface 53
Part I. Concept of the Constitution 57
§ 1. Absolute Concept of the Constitution (he Constitution as Uniied
Whole) 59
I. Constitution as the collective condition of concrete unity and order or
as state form (“form of forms”)—or as the principle of the formation of the
political unity 59
II. Constitution in the normative sense (“norm of norms”) 62
§ 2. Relative Concept of the Constitution (he Constitution as a Multitude
of Individual Laws) 67
I. Dissolution of the constitution into constitutional laws 67
II. he written constitution 68
III. Qualiied alterability as a formal characteristic of constitutional
law 71
§ 3. he Positive Concept of the Constitution (he Constitution as the Complete Decision over the Type and Form of the Political Unity) 75
I. he constitution as the act of the constitution-making power 75
II. he constitution as political decision—Decisions of the Weimar
Constitution—Practical signiicance of the distinction between constitution and constitutional law (constitutional amendment, inviolability of the
constitution, basic rights, constitutional disputes, oath to the constitution,
high treason) 77
III. he compromise character of the Weimar Constitution, genuine
and apparent compromises (school and church compromise) 82
§ 4. Ideal Concept of the Constitution (“Constitution” in an exemplary
sense, thus named because of a certain content) 89
I. Ambiguity of the ideal concept, in particular freedom 89
II. he ideal concept of the constitution of the bourgeois Rechtsstaat 90
III. Both components of the modern constitution 93
§ 5. he Meanings of the Term “Basic Law,” Basic Norm or Lex Fundamentalis (Summarizing Overview) 94
I. Nine meanings of the word basic law 94
II. Connections between the diferent meanings 94
III. In this book, constitution means constitution in the positive
sense 96
§ 6. Origin of the Constitution 97
I. A constitution arises either through one-sided political decision of
the subject of the constitution-making power or through reciprocal agreement of several such subjects 97
II. Historical overview of the origins of the modern European constitutions (1. medieval feudal state and state of estates, in particular the Magna
Carta; 2. the German Reich until 1806; 3. the state of the absolute princes;
4. the Revolution of 1789; 5. the monarchical restoration 1815–1830; 6. the
July Revolution 1830; 7. the constitutional monarchy in Germany; 8. North
German Federation 1867 and German Reich 1871; 9. the Weimar Constitution 1919) 97
§ 7. he Constitution as Contract (he Genuine Constitutional Contract) 112
I. Distinction between the so-called state or social contract from the
constitutional contract 112
II. he genuine constitutional contract as federal contract. Non-genuine
constitutional contracts inside a political unity 113
III. he genuine constitutional contract as status contract (criticism of
the principle: pacta sunt servanda) 117
IV. Constitution and international law contracts 120
§ 8. he Constitution-Making Power 125
I. he constitution-making power as political will 125
II. he subject of the constitution-making power (God, people or nation, king, an organized group) 126
III. Initiation of the constitution-making power, in particular the democratic practice (national assembly, convention, plebiscite) 130
§ 9. Legitimacy of a Constitution 136
I. Types of constitutional legitimacy 136
viii
Contents
II. Legitimacy of a constitution does not mean that a constitution originated according to previously valid constitutional laws 136
III. Dynastic and democratic legitimacy 138
§ 10. Consequences of the heory of the Constitution-Making Power, of the
People’s Constitution-Making Power in Particular 140
I. Continuous presence (permanence) of the constitution-making
power 140
II. Continuity of the state during the elimination and statutory violation
of the constitution, to the extent that only the constitution-making power
remains unchanged 141
III. he problem of the continuity in the change of the subject of the
constitution-making power (constitutional elimination), in particular the
continuity of the German Reich in 1918/19 142
IV. Distinction of the people’s constitution-making power from every
constituted authority, speciically that based on constitutional law 145
§ 11. Concepts Derived from the Concept of the Constitution (Constitutional Change, Statutory Violation of the Constitution, Constitutional Suspension, Constitutional Dispute, High Treason) 147
I. Overview 147
II. Changes of the constitution involving constitutional laws (revision
and amendment of the constitution), boundaries of the authority for constitutional amendment, statutory violations of the constitution and doubtful acts of sovereignty, suspension of the constitution 148
III. Constitutional disputes 158
IV. he constitution as an object of attack and protection during high
treason 164
Part II. he Rechtsstaat Component of the Modern Constitution 167
§ 12. he Principles of the Bourgeois Rechtsstaat 169
I. Distinction between the Rechtsstaat and political components of the
modern constitution; both principles of the bourgeois Rechtsstaat: basic
rights (principle of distribution) and separation of powers (organizational
principle) 169
II. he concept of the Rechtsstaat and individual distinguishing marks
(legality, administrative jurisdiction, deinability of all state authorizations,
independence of judges, conformity to judicial forms, problem of political
justice) 172
§ 13. he Rechtsstaat Concept of Law 181
I. Law and statute in the bourgeois Rechtsstaat 181
II. he so-called formal concept of law 184
Contents
ix
III. he political concept of law 187
IV. he meaning of the general character of the legal norm 191
§ 14. he Basic Rights 197
I. Historical Overview 197
II. Historical and legal signiicance of the declaration of rights 200
III. Substantive distribution of the basic rights 202
IV. Institutional guarantees are distinguishable from basic rights 208
V. In the bourgeois Rechtsstaat, basic duties are nothing more than
constitutional law obligations 212
VI. Division of the basic rights in regard to the protection against limitations and intrusions 213
§ 15. Separation (So-Called Division) of Powers 220
I. he historical origin of the separation of powers theory 220
II. Separation and balancing of powers; schema of their strict separation; schema of a few attempts at balancing 223
§ 16. Bourgeois Rechtsstaat and Political Form 235
I. he constitution of the modern bourgeois Rechtsstaat is always a
mixed constitution; state forms become forms of separated and divided
powers (legislative, executive) 235
II. he two principles of political form (identity and representation) 239
III. Concept of representation 242
IV. he modern constitution as a linkage between and mixture of bourgeois Rechtsstaat principles with principles of political form 249
Part III. he Political Component of the Modern Constitution 253
§ 17-1. he heory of Democracy, Fundamental Concepts 255
I. Overview of a few conceptual deinitions 255
II. he concept of equality (general human equality, substantive
equality) 257
III. Deinition of democracy 264
§ 18. he People and the Democratic Constitution 268
I. he people anterior to and superior to the constitution 268
II. he people within the constitution (elections and votes) 268
III. he people compared with the constitutional regime (public opinion) 271
IV. Overview of the meanings of the word “people” for a modern constitutional theory 279
§ 19. Consequences of the Political Principle of Democracy 280
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Contents
I. General tendencies 280
II. he state citizen in democracy 280
III. Oicials (democratic methods for the selection of oicials and civil
servants) 283
§ 20. Application of the Political Principle of Democracy to Individual
Areas of State Life 286
I. Democracy and legislation (in particular referendum and initiative) 286
II. Democracy and government (especially production of direct relations between government and people) 291
III. Democracy and relations among states under international
law 295
IV. Democracy and administration 297
V. Democracy and the judiciary 299
§ 21. Boundaries of Democracy 302
I. Boundaries of the principle of identity 302
II. Boundaries stemming from the nature of the people 302
III. Boundaries of the practice of contemporary democracy 303
IV. Critique of the principle “majority decides” 303
§ 22-2. he heory of Monarchy 308
I. Foundations of monarchy (theocratic, patriarchal, patrimonial, civil
servant, and Caesarist forms) 308
II. he signiicance in constitutional theory terms of the diferent justiications of monarchy 311
III. he position of the monarch in the modern constitution 313
IV. he state president in a republican constitution 315
§ 23-3. Aristocratic Elements in Modern Bourgeois-Rechtsstaat Constitutions 318
I. he aristocratic principle as a means of the separation of powers 318
II. Idea of and justiication for the two-chamber system 318
III. he historical types of the two-chamber system (upper house, house
of lords, senate, house of states) 320
IV. he jurisdiction of and grants of authority to the upper house 323
V. Incompatibility of double membership 327
§ 24-4. he Parliamentary System 328
I. Ambiguity of the term “parliamentarianism,” especially the four subtypes (presidential, parliament, premier, and cabinet system) 328
II. he ideal foundations of the parliamentary system (historical situation of the bourgeoisie, education and property, public discussion) 331
Contents
xi
III. Practical consequences of the fundamental idea of the parliamentary system (representation, the public, discussion) 338
§ 25. Historical Overview of the Development of the Parliamentary System 343
I. Most important dates of the historical development in England 343
II. he course of development in France and Belgium 348
III. he course of development in Germany 351
§ 26. Overview of the Possibilities for the Formation of the Parliamentary
System 359
I. Decisive consideration: agreement between parliament and government 359
II. Means of producing the agreement 359
III. “Instances” of parliamentary responsibility (cabinet collapses) 359
§ 27. he Parliamentary System of the Weimar Constitution 362
I. he linkage of the four subsystems 362
II. Overview 363
III. he practice of the parliamentary systems of the Weimar Constitution. 1. he conidence of the Reichstag (Art. 54, 1 and 2); 2. “the Chancellor
determines policy guidelines” (Art. 56); 3. the cabinet system; 4. the presidential system 364
§28. Dissolution of Parliament 373
I. Types of dissolution (monarchical, presidential, ministerial, selfdissolution, dissolution in response to an initiative) 373
II. he President’s dissolution authority 375
Part IV. Constitutional heory of the Federation 379
§ 29. Fundamental Concepts of a Constitutional heory of the Federation 381
I. Overview of the types of interstate relations and connections (international legal community, individual relations, alliance, federation) 381
II. Consequences of the conceptual deinition of the federation (paciication, guarantee, intervention, execution) 385
III. he legal and political antimonies of the federation and their elimination through the requirement of homogeneity 388
§ 30. Consequences of the Fundamental Concepts of the Constitutional
heory of the Federation 396
I. Every federation as such has a political existence with an independent
jus belli 396
II. Every federation as such is a subject in terms of international as well
as public law 396
xii
Contents
III. Every federation has a federation territory 399
IV. Federation representation, institutions and oicials, federal jurisdiction 400
V. Treasonous undertakings against the federation 403
VI. Democracy and federalism (especially Art. 18) 404
Appendix: he Weimar Constitution 409
Notes 441
Biographical Notes 464
Index 465
Contents
xiii
Foreword
Ellen Kennedy
he publication of Carl Schmitt’s Constitutional heory (1928) ills a signiicant gap in the available English translations of this important political thinker. he text is remarkable for two things: its rigorous conception
of a constitution and its concepts and the mastery of historical evidence
and usage that informed and for long shaped the central ideas of law and
political theory in the West. Constitutional heory has never been out of
print in German, and has long been available in the other major European
languages. It now appears here in a felicitous and scholarly translation by
Jefrey Seitzer at an especially appropriate time.
Written simultaneously with his most famous text, he Concept of the
Political, Schmitt’s Constitutional heory addressed the boundary of the political. he irst text makes the radical claim that the distinction between
friend and enemy is a criterion by which all political actions and motives
can be judged—a claim that appears to reduce our conception of politics to
struggle, suggesting in a remarkable reversal of Clausewitz that politics is
the extension of war by other means. he apparent imbalance is redressed by
this book. he topic here is the political association of friends that is possible
in the modern world and within the legal structure of the modern state.
Constitutional heory difered importantly from other contemporary
works on the “liberal rule of law state” (bürgerliche Rechtsstaat) and from
standard texts on constitutional law then and now. In the irst place, it is
not a case book and not a commentary but the theory of a particular type
of state “which is dominant today” and of which the Weimar constitution
was one example. Although there is an extensive register of articles of the
Weimar constitution discussed herein, the reader will not ind an account
comparable to those of Gerhard Anschütz and others that were the standard texts of university teaching in Germany and crucial to informed judicial opinion. Schmitt ofers, instead, a system that demonstrates the relationship of law and politics to each other, not just in this one German
constitution, but in all constitutional states of the “liberal rule of law” type.
he result is a brilliant attempt at what we today call comparative constitutionalism, and the following pages are replete with examples from across
modern political history. More than that, it is an as yet unsurpassed political theory of the modern state in an age of world wars fought by arms and
ideas that transformed the original foundations of the state.
Here, as in Schmitt’s other works, the tension between the democratic
elements of the political constitution and liberal forms of the rule of law
comes under scrutiny. In contrast to the polemics and pessimism of he
Crisis of Parliamentary Democracy (1923), Constitutional heory assumes
that the mixed form of modern constitutions does not necessarily conlict
with its democratic foundation, even though the task of balancing them, as
Schmitt’s many historical examples demonstrate, is a constant demand.
It is, inally, an appropriate moment in the history of the liberaldemocratic state and its rule of law for the appearance of Constitutional
heory in a translation that makes it available to a wide readership. he vulnerability of the constitution is never absent from the discussion. Behind
controversies over particular articles, Schmitt argues, is the larger question
of the constitution as a whole. his insistence on the constitution as a positive choice for political unity (pt. 1, sect.3) was Schmitt’s great contribution
to the constitutional debates of the Weimar period. Read with he Concept
of the Political, the present text captures the seriousness of constituting
this people in this time, not as a set of technical issues in law and electoral
strategy, but as a boundary that secures the existential survival of a particular way of life.
Constitutional heory was a product of Weimar’s best years, a period
of relative calm that soon gave way to intense crisis in which constitutional defense and constitutional treason were the bywords, as evidenced
in Schmitt’s Legality and Legitimacy (1932), also translated for Duke University Press by Jefrey Seitzer. In the present controversy over executive
power and representation in the United States, the schematic of constitutional change at the end of part one of Constitutional heory is an important perspective on normal constitutional disagreements. hese need not
become a cycle of “constitutional violation” and “constitutional suspension”
as they did in Weimar.
Only a few paragraphs, less than a page, were ever added to the 1928 text.
In 1954 Schmitt added a new preface, remarking that a systematic work
such as the Constitutional heory did not need to rush to compete with
the many constitutional texts that emerge over time “as long as the type remains.” he American constitution of 1789 is one example of this type. It is
scarcely mentioned here, but in Schmitt’s discussion of “apocryphal acts of
sovereignty” the observant reader will ind much to ponder in our current
circumstances.
xvi
Foreword
Translator’s Preface
here is considerable disagreement about Carl Schmitt’s contribution to
political theory and his place in German history. Few dispute, however,
that he was a gifted German stylist and a master essayist. Constitutional
heory is remarkable for the clarity and elegance of its prose, as are many
of Schmitt’s essays from the Weimar period, such as Political heology, he
Crisis of Parliamentary Democracy, and Concept of the Political. Stylistically, however, it difers signiicantly from his essays. Cast in the form of a
traditional treatise, the work is divided into elaborate sets of narrowly deined treatments of speciic concepts, with each of these sections building
on one another in a way that can become repetitive. Moreover, the work
is replete with rather technical qualifying phrases, often inserted into the
middle of already long sentences, meant to ensure the systematic development of the concepts in question.
Nonetheless, Schmitt presents his “systematic” treatment of constitutional theory in a highly readable form. his is because his deft use of the
German language’s structural variability, along with his extensive use of the
passive voice, enables him to compensate for the inherent repetitiveness of
such a lengthy, intricate, and highly technical argument.
he English language, however, is more limited in terms of sentence
structure than German, and the frequent use of the passive voice poses
signiicant stylistic problems for English prose. To maintain the clarity and
low of the original, therefore, I believe it necessary to diverge from a literal rendering. First, I use synonyms for key terms, such as Macht (power)
and Gewalt (authority), when they do not introduce shades of meaning
that might confuse the reader and suggest inconsistencies in Schmitt’s argument not present in the original. I have also broken up and rearranged
long sentences, particularly when the original German contained elaborate
or repetitive qualifying phrases. Finally, I have changed the passive to the
active voice where a subject is clearly identiiable and where the active voice
does not change the meaning of the sentence.
I discuss potentially contentious renderings, along with unfamiliar features of German law and controversial aspects of Schmitt’s argument, in
explanatory notes to the main text. hese notes are placed in brackets to
distinguish them from Schmitt’s. Because of their prominence in the argument, however, certain matters merit discussion at the outset.
First, a number of terms remain in the original German. he most
prominent of these, Rechtsstaat, has no clear English equivalent. Much of
German legal and political theory concerns the meaning of this term and
its signiicance for law, politics, and society in Germany. I decided not to
ofer an awkward locution, such as “legal state,” because doing so might
distract the reader from Schmitt’s efort to deine the term.
Some of the names for levels and systems of government are also not
translated. Reich (national level of government from 1870 to 1933), Reichstag (federal parliament from 1870 to 1945), Bundesrat (federal chamber
from 1870 to 1919 and again in the post–World War II period), Reichsrat
(federal chamber in the Weimar period), Staatsgerichtshof (high court for
federalism and separation of powers questions during the Weimar era), and
Reichsgericht (federal high court for civil and criminal cases from 1877 to
1945) appear frequently throughout the work. Leaving them in the original
German ensures that references to levels and institutions of government
remain clear without long and awkward phrases that would make the text
much less readable.
he German word Land remains in the original as well, though for
somewhat diferent reasons. Land might be rendered “state,” as in the ifty
American states, and yet it also means “country” in the sense of a nationstate. he fact that the German word Staat means “state” complicates matters even more. I believe the best response is not translating Land when it
refers to state-level governments in Germany and rendering it as country
or an appropriate synonym if it refers to a nation-state. Staat, however, will
always be state. he plural form for Land, Länder, while elegant, is rather
unfamiliar, so I have adopted the English plural “Lands.” With both Land
and Lands, though, I retained the capitalization to keep these speciic
usages distinct from general references to non-German states.
I translate the other primary institutions of the national government,
Reichspräsident, Reichskanzler, and Reichsregierung as President, Chancellor, and Reich government, respectively. his is because there are commonly used English words for them, which are neither confusing nor awkward.
here is one more general point on terminology. Schmitt includes many
foreign words and phrases. He often deines them; and when he does not,
their meaning is almost always clear from the context. I translate these foreign terms and phrases only in the rare instances when their meaning is not
readily apparent.
he reader should note that the translation is of the original 1928 edition. In later editions, the publisher made some changes, most notably the
inclusion of italics. I have incorporated only some of these. Speciically, instead of italicizing all proper names and place references, as the German
publisher does, I have included italics only where they are clearly meant to
emphasize the importance of a concept or statement.
xviii
Translator’s Preface
Finally, to aid those readers interested in consulting the original text, I
have indicated the original page breaks in brackets. With the exception of
a few pages in the index, the pagination of the original edition is identical
with the most recent paperback one. So those without access to the original 1928 edition may easily consult this one as well, using the bracketed
page numbers. Schmitt’s cross-references are to the page numbers in the
original 1928 edition, but cross-reference page numbers are not enclosed in
brackets.
I incurred many debts during the completion of this work. Miriam Angress, Valerie Millholland, and Pam Morrison patiently guided the work
through the intricate publication process. George Schwab, two anonymous
reviewers, and an exceptional copyeditor, Paul Betz, shared their thoughts
on the entire manuscript. Rainer Forst, Oliver Lepsius, John McCormick,
Magnus Ryan, Christopher hornhill, and Eric Warshaw advised me on a
number of important issues, while the Holcombe Academic Translation
Trust provided much-needed inancial assistance. Finally, Janet Smith and
Ethan McGinnis Seitzer made me inish it or else!
Translator’s Preface
xix
An Introduction to Carl Schmitt’s
Constitutional heory: Issues and Context
Jefrey Seitzer and Christopher hornhill
he scholarly interest in the German legal and political theorist Carl Schmitt
continues to grow,1 and the reception of his ideas, whether it is positive
or negative, now shapes constitutional debate in many diferent contexts
and countries.2 Schmitt’s place within the intellectual and political culture
of the Weimar Republic alone would generate considerable interest in his
works.3 hrough a number of essays, such as Political heology, he Crisis
of Parliamentary Democracy, he Concept of the Political, and Legality and
Legitimacy, he exerted considerable inluence on thinkers across the political spectrum in this era. He was also an active participant in the politics
of the Republic. His work on the possibility of instituting a constitutional
dictatorship, under Art. 48 of the Weimar Constitution, found the ear of
conservative politicians, who then made him an adviser during the inal
crisis of the Republic in the period 1930–33.4
Moreover, Schmitt’s role in the early Nazi regime has rendered him arguably the most controversial German thinker of the last century. For much
of the Weimar period, Schmitt criticized liberal parliamentary government
because he considered it too weak to respond adequately to challenges presented by radical groups from both the right and the left, and he argued
that presidential government, subject to few, if any, limitations, was the
only institutional means of preserving the Republic against these radical
opponents. In this limited respect, most of Schmitt’s Weimar works were
designed to contribute to the defense of the constitutional order. hough he
never explicitly called for the banning of the Nazi Party late in the Republic, he implied in his last major work before the Nazi ascension to power,
Legality and Legitimacy, that such an action would fall within the purview
of presidential authority under Art. 48. Yet to the surprise and consternation of many, Schmitt collaborated with the Nazis between 1933 and 1936,
authoring several essays in support of the new regime’s most brutal policies, such as the so-called Night of the Long Knives, and serving on the
Prussian State Council under Hermann Goering.5
After 1936, Schmitt was no longer actively involved with the regime of
the nsDaP (Nationalsozialistische Deutsche Arbeitspartei). But after the
war he refused to submit to the denaziication process or to admit any guilt
concerning the regime’s actions. Barred from returning to his university
post, Schmitt retired to his native Plettenberg and continued to publish
essays on politics and culture. here he exerted a considerable inluence on
young conservative legal thinkers, a large number of whom visited Schmitt
in his home,6 and his work on constitutional theory from the Weimar era
continued to ind an international audience.7
Schmitt’s political activity is unavoidably an issue that must be considered in any treatment of his works, and this one is no exception. To gain
an understanding of this work, however, it is not necessary to scrutinize it
for traces of political contamination or to address the question of whether,
as is often suggested, there exists a cleft (Zäsur) between his writings and
political activities of the Weimar era and those of the Nazi era.8 Constitutional heory elaborates with considerable richness many of the themes
developed in previous works, and it anticipates some of the positions of
later ones. But this work is methodologically distinct from his other works,
and it also contains some substantive changes in key positions. So it is imperative that Constitutional heory not be treated merely as a historical
leshing out of Schmitt’s other, more polemical works. In Constitutional
heory, more speciically, the intellectual-historical approach employed in
works like he Crisis of Parliamentary Democracy, where Schmitt evaluates contemporary political practice in reference to exaggeratedly ideal
standards, gives way to a comparative history of the theory and practice
of constitutional government. his comparative historical methodology is
especially noteworthy, not merely because it is more complete and subtler
than the earlier approach, but also because it constitutes a deconstruction
of the ideal standards used in works like Crisis. Schmitt’s historical reconstruction of the liberal constitutional tradition in this work thus signals a
limited, though signiicant, rapprochement with liberalism, which distinguishes Constitutional heory from his other important works from the
period in substantive as well as methodological terms.9
In what follows, we will sketch the context in which Schmitt wrote
Constitutional heory and consider the work’s claim on the attention of
contemporary readers. he irst part addresses the cultural and intellectual context; then the second part considers Schmitt and the politics of
the Weimar Republic. he third part points out what is methodologically
distinctive about the work, and the fourth and ifth parts examine, respectively, how Constitutional heory has been received in the postwar era and
its larger theoretical ramiications.
2
Introduction
he Weimar Republic:
Cultural and Intellectual Background
Schmitt’s most important and inluential works were written during the
Weimar Republic (1919–33). he Weimar era was not only a time of rapid
and volatile political change; it was also marked by far-reaching processes
of intellectual and ideological transformation, in which, across all spheres
of inquiry, theoretical and philosophical positions enjoying oicial sanction or status were fundamentally questioned, reconigured, and, in many
cases, abandoned for more radical alternatives. his process of intellectual
reorientation was due, in part, to the unstable practical reality of governance in the aftermath of 1918, a period that, in Germany especially, saw
the abolition of many previous institutions of monarchical rule, the full
and immediate enfranchisement of previously marginalized sociopolitical
groups, and, of course, the palpable threat of further revolution from the
Bolshevik left. At the same time, the intellectual horizon throughout the
Weimar was also shaped in fundamental manner by a critical dialogue with
the outlooks that had propped up the intellectual establishment of Imperial
Germany (1871–1918), and by a repudiation of the formalistic philosophical
ideas and the liberal political doctrines that had given foundation to the
quasi-democratic Rechtsstaat 10 of the Imperial period. he rapid collapse
of the civilized and legally paciied European states into World War I, it was
widely perceived, had thoroughly discredited the orthodoxies of the late
Kaiserreich. Consequently, at all points of the political spectrum and in all
ields of discourse, intellectual life in Weimar focused on a rejection of the
paradigms, especially those contaminated by the suspicion of formalism
or liberalism, around which pre-1914 debate had tended to organize itself.
Schmitt’s own work stands at the very core of these processes of denial and
reorientation, and his work both relected and initiated wider intellectual
patterns of reconsolidation.
he Decline of Neo-Kantianism At the outbreak of World War I, the dominant philosophical orthodoxy in Germany was neo-Kantianism, which was
divided into two schools, the Marburg School that was centered on the
thinking of Hermann Cohen and the South West German School based
on the views of Heinrich Rickert. Other highly inluential neo-Kantian
philosophers included Rudolf Stammler, Franz Staudinger, Karl Vorländer, Paul Natorp, and Emil Lask. he philosophy of the Marburg School, as
represented chiely by Cohen, but also by Natorp and, more debatably, by
Stammler,11 was based on a reconstruction of Kantian philosophy that argued that Kantian thinking should be construed most essentially as a practical doctrine of personal autonomy.12 Kant’s philosophy, Cohen claimed, is
Introduction
3
in essence an account of the conditions under which human reason, in the
form of the pure will, can independently deduce universally binding moral
or even natural-legal principles to justify and explain its actions. NeoKantian philosophy viewed the highest accomplishment of reason as its
ability to relect and stipulate pure laws with consistency, which then form
a realm of norms distinct from the realm of social facts, and thus regulate
human action and guide it toward universal validity. Cohen extended this
theory of practical moral consciousness to argue that the legitimate political order is one that gives universal and concrete form to the principles
of law deduced by autonomous consciousness. he political aspect of his
philosophy culminated in an ethical concept of the Rechtsstaat, which asserted that the state can only obtain legitimacy where it represents and enacts the founding universal principles by which human reason sustains its
own moral autonomy and universal validity.13 he realized moral person of
Kantian practical reason, Cohen concluded, is the foundation of the legal
personality of the Rechtsstaat.
he philosophers in the South West German School were less directly
political in their theoretical ambitions, although Emil Lask wrote an important work on the philosophy of law. Nonetheless, the philosophies of this
school were also held together by a reading of Kant stressing the greater
importance of practical reason over pure reason, and so viewed Kantian
thinking mainly as a means of deriving abstract universal principles, or
values, to guide human judgment, human action, and human politics.14
It is diicult to ind any intellectual of note in Germany or Austria in the
irst decades of the twentieth century who was not deeply marked, either
critically or positively, by neo-Kantianism. Its inluence extended beyond
practical philosophy into epistemology, political theory, theology, and aesthetics. Apart from Schmitt himself, thinkers as diverse as Martin Heidegger, Max Weber, Eugen Ehrlich, Hermann Kantorowicz, Georg Lukács,
Karl Barth, Franz Rosenzweig, Max Adler, Otto Bauer, Walter Benjamin,
heodor W. Adorno, and Hans Kelsen would surely have followed very different theoretical trajectories if they had not encountered and been challenged by neo-Kantian philosophy.
Of equal importance to their purely theoretical contributions, moreover, was the fact that some major proponents of neo-Kantianism declared
an open enthusiasm for the sPD (German Social Democratic Party). his,
in itself, was very unusual in Imperial Germany around 1900, where the
sPD had not yet been fully assimilated into mainstream politics, and where
intellectual mandarins tended to align themselves either to the difuse leftliberal parties or to the right-of-center National Liberals. However, neoKantian conceptions of the state as a universal moral person gradually came
to feed directly into the programmatic foundation of the sPD, or at least
4
Introduction
into the doctrines of its more liberal components, as the party emerged
from the period of its political ghettoization following the repeal of the
Anti-Socialist Laws in 1890. Some leading neo-Kantians, especially Cohen,
became semioicial philosophers of the revisionist wing of the sPD, led
by Eduard Bernstein, which abandoned the party’s earlier ideological emphasis on revolutionary combat as the motor of social change and instead
advocated peaceful progression toward socialism within the parameters
of the parliamentary Rechtsstaat. hese neo-Kantians endorsed a gradualist and morally inlected doctrine of evolution toward a common economy, and they also opposed the determinist line of dialectical materialism
that had been the initial orthodoxy of the sPD. Above all, they argued that
the evolution of society toward a condition of greater justice and equality
should not be viewed merely as a social or material process; instead, they
claimed that social development could not be separated from legal evolution, and all wider social progress must be steered by moral law.15 Underlying the moral socialism of the neo-Kantians was an intensely juridical
understanding of how people and societies operate, claiming that the telos
of all social formation is to constitute legal communities, that social and
political existence invariably becomes more and more susceptible to legal
regulation and formalization, and that all social problems are ultimately
open to legal resolution. his view concluded that the emergence of the
modern Rechtsstaat and constitutional states represents a full realization of
essential human capacities for self-legislation, and that the state regulated
by prior laws marks the most adequate collective form for self-realized
human life.
Even during the decline of neo-Kantianism after 1918, the distinctive
vision of moral socialism, based on the legal regulation of economic production, remained very pervasive among the Austro-Marxists, and neoKantian ideas were central to many political projects of the early period
of the First Republic in Austria. he major neo-Kantian whose inluence
survived into the Weimar era was Hans Kelsen, who wrote the irst drafts
for the Austrian democratic constitution of 1920. Kelsen’s constitutional
thought was guided, irst, by the quasi-Kantian claim that the state cannot be deined as a state if it does not act as a bearer of legal order, or as
a “system of norms.”16 He ascribed to the state an irreducibly normative
character, which has no reality independently of law, and no voluntaristic
force or personal identity beyond its unity with the law.17 He thus saw the
depoliticization of the state and its construction as a neutral objective legal
order as a guarantee that it would operate as a Rechtsstaat, in procedural
compliance with the objective norms embedded in its own constitution.
Second, he argued that the normative form of the state is derived from an
exclusively ideal realm of norms, which are distinct from and unafected
Introduction
5
by natural or sociological facts.18 he state, he claimed, validates its power
and legitimacy through reference to a pure realm of objective legal norms
and to the processes through which these norms are applied,19 not to any
material, historical, or sociological processes that lead to or inluence its
constitution. he state is always positioned over and against the modes
of conlict and association that determine society more generally, and it
applies laws as pure objective norms that have no foundation in determinately volitional, personal, or social interests, and that construct the social phenomena to which they are applied as purely objective legal facts.20
hird, and most important, he elaborated these arguments to enunciate
a thorough critique of all personalistic or voluntaristic attempts to found
a doctrine of political sovereignty, claiming that the tendency to separate
sovereignty from the law and to imagine the power of the state as evolving from a particular or collective will, to which the supralegal attribute of
sovereignty might be imputed, is the result of a corruption of legal analysis
by juridically inadmissible, “meta-legal,” or even covertly metaphysical prescriptions.21 In each of these preconditions, Kelsen’s constitutional thinking formed perhaps the most important critical background for Schmitt’s
work.
Despite this survival of neo-Kantian ideas, many aspects of the Weimar
Republic’s intellectual life were determined, across most lines of intellectual inquiry, by an increasingly intense aversion to neo-Kantianism, and
especially toward its formalizing account of human consciousness and its
apparent reduction of social being to questions of legal necessity and evolution. In purely philosophical debate, Georg Lukács’s early contributions
to the emergence of a Western Marxist tradition, in History and Class Consciousness (1923), are the theoretical outcome of his lengthy relections
on the neo-Kantian philosophy to which he was exposed in Heidelberg.
Equally, Martin Heidegger’s writings of the 1920s focus primarily on the
attempt to overcome neo-Kantian paradigms for explaining consciousness,
ethics, and law.22 Much of Max Scheler’s work was driven similarly by hostility toward Kantian moral formalism,23 and the early existentialism of Karl
Jaspers revolves around a reconstruction of Kant that was designed to rescue Kant from the neo-Kantians.24 Even Paul Natorp, earlier an important
exponent of the neo-Kantian doctrine of the formal autonomy of reason,
began after 1918 to entertain more vitalist and metaphysical notions in his
political thought.25 In legal and political thought, the Free Law Movement,
around Kantorowicz, Ehrlich, and the young Gustav Radbruch, had already
declared war on moral-positivist legal ideas before 1918, seeking to abandon
the formal-normative construction of the law in favor of a free and creative
approach to legal interpretation and to the conditions of legal validity.26
he resulting climate of anti-Kantian debate was reinforced, however, by
6
Introduction
Erich Kaufmann’s postwar demolition of neo-Kantian legal philosophy.27
Around the same time, the conservative Hegelianism of Julius Binder,28 the
left-leaning distributive corporatism of Hugo Sinzheimer,29 the left-liberal
organic theory of Hermann Heller, and the value-based integration theory
of Rudolf Smend all proceeded from the belief that the more positivist outgrowths of neo-Kantianism provide only a highly impoverished account of
political and ethical life.30 Primarily, though, all major theorists of politics
and law in the 1920s concurred in arguing that neo-Kantianism reduces
legitimate politics to the application of either formal-subjective or formalobjective laws, and it can only imagine political legitimacy in the weakest
or most illusory terms, by evacuating all social, cultural, and historical determinacy from political coexistence and experience.
Schmitt’s earliest writings were strongly inluenced by neo-Kantian
claims about legal universality, however vehemently anti-Kantian sentiments were at the heart of his work of the Weimar era. Indeed, if an attempt
were made schematically to reduce Schmitt’s political theory to its basic
elements, it might easily be argued that each of these elements turns on an
antagonism toward neo-Kantian political conceptions. First, for instance,
in purely party-political terms Schmitt is obviously opposed to the Social
Democratic movement, and he views Marxist materialism as absolutely incompatible with any type of political ethic or any substantial explanation
of political legitimacy. At diferent junctures in his oeuvre he indicates that
Marxism is an outlook that is tantamount to the death of politics and that
leads to the replacement of representative modes of governance by technical or naturalized accounts of social life and political necessity. he neoKantian claim that Marxism should be reconstructed as a theory of common ethical self-realization is therefore a perspective to which Schmitt is
deeply hostile.
Second, Schmitt’s approach to political, legal, and constitutional analysis possesses a pronounced sociological dimension that opposes the neoKantian tendency to interpret social processes in normative or universal
categories and that rejects the Kantian suggestion that all legal phenomena
only exist as facts of law, detached from processes of social formation. To
describe Schmitt’s method as “sociological” naturally does not mean that
we can see his work as containing a distinctive sociological system or an
overarching account of how all spheres of modern society work. However,
Schmitt analyses institutions, and especially legal institutions, as historically and socially produced forms.31 hese institutions, for Schmitt, originate in complex expressions of social conlict, antagonism, and unity. hey
cannot be interpreted as manifestations of universal moral orientations or
deductions, nor can they be adequately interpreted by purely legal or ethical analysis. here are also no formal legal or moral standards that allow
Introduction
7
us to assess the validity or legitimacy of institutions. Above all, Schmitt’s
thinking is profoundly critical of Kantian perspectives that view legitimate
law as a system of formal or invariable moral norms and that assume that
the application of such law serves to reconcile deep-lying social antagonisms and to confer legitimacy on historically formed institutions.
hird, then, Schmitt also difers fundamentally from neo-Kantianism in
his conception of the constitutional personality of the state. Neo-Kantians
argue that the state becomes legitimate when it gives to itself a constitution,
through which it represents the essential attributes of the human person
and refers to the anthropological origins of legitimate political power. In
this, the essential condition of the human being is deined as one of realized autonomy: that is, as a capacity for deducing and implementing universal laws. he personality of the legitimate state consequently evolves as
the state gives itself the constitutional form of universal moral law, and as it
then accepts, through the constitution, the necessity of its own compliance
with this law. Schmitt at times moves close to neo-Kantian thought in that
he too imputes an anthropological-representative substructure to the state,
and he insists that the state derives legitimacy from its foundation in essential human qualities. For Schmitt, however, the constitutional personality
of the state is not in any way external to the state. he legitimate state has
a constitution that represents either the concretely uniied will of its constituents or some higher quasi-existential idea of true politics that the state
itself embodies and enacts. he constitution does not, however, represent
norms deduced independently of the state. Schmitt thus irmly rejects the
suggestion that the state is bound by any measurable legal standards or by
any obligations that might be imposed on it, independently or externally,
through the medium of law. he constitutional personality of the state, for
Schmitt, is merely the state’s own foundation of identity, and this constitution has no reality apart from the state itself.
Fourth, consequently, Schmitt also focuses his political theory and his
concept of representation on a highly voluntaristic or decisionistic model
of legitimacy, which directly opposes Kantian ideas about the legal origins
of legitimate power. In fact, Schmitt’s thought directly inverts the Kantian
claim that the constitution of the state becomes more legitimate as it is
detached from any particular will, and as it represents a hypothetical pure
will or a pure set of universalizable human interests. Against this, he claims
that constitutional legitimacy is rooted in a concrete and substantial will.
At diferent points in his trajectory, this is envisioned either as a personal
will, expressed in personal decisions and in personal principles of order,
or in the common underlying will of the historically formed people. But
for Schmitt, in any case, neo-Kantian thinking thoroughly undervalues the
voluntaristic elements of constitutional formation, and, by reducing all law
8
Introduction
to formal law, it contributes to the creation of weak states, chronically vulnerable to destabilization.
he major point of opposition between Schmitt and Kantian political
thought, though, resides in the particular way in which Schmitt addresses
the relation between legality and legitimacy. he irst political principle of
Kantian thinking about politics is that politics is the technical or executive
component of the political apparatus, and that this component is justiied
only if determined by pure and universalizable laws, which are enshrined
in the constitution. Hence, legality is the constitutional determinant and
precondition of all legitimacy. he constitution determines legitimacy by
placing legal-moral limits on the authority of the state and the exercise
of its power, or even by referring to natural-legal norms as it checks the
operations of the state. Schmitt argues, however, that this relation between
law and power is badly misconceived in Kantian philosophy. Legality, for
Schmitt, is a formal condition that must be given meaning and content by
a prior structure of legitimacy: legitimacy is obtained only through the representation of the uniied will or the historical existence of the people, and
this must be presupposed as the origin of the constitution, and indeed of
all law. On Schmitt’s account, politics is before the law, and the necessary
content of law cannot be stipulated in abstraction from the particular political system in which it originates. Law, in short, cannot constitute legitimacy on its own, and law that is not informed by a particular political will
is always likely to undermine the legitimacy of a political order. he result
of this is that, unlike Kantian thinkers, Schmitt does not see the constitution of a state as a legal order possessing priority or distinct dignity over the
state. Rather, he sees the constitution as united with the state, representing
a uniform political will that cannot be reduced to formal or autonomous
legal principles. Indeed, at the heart of Schmitt’s work is a direct inversion
of Kantian ideas about the state and the law. he constitutional law of the
state, based in the will of the state, must prevail over all other laws. States
that are bound to compliance with technical or external laws, he concludes,
are always likely to be fragile and susceptible to crisis.
Like other examples of the post-1918 anti-Kantian literature, Schmitt’s
hostility to Kant relects the belief that the Kantian tendency to exclude
vital, historical, and metaphysical contents from its account of necessary
order impoverishes human freedom by deining it merely as a formal capacity for obtaining and validating laws. Consequently, Schmitt believes
that underlying Kantian thought is always a debilitating misinterpretation
of what it means—or might mean—to be a free political being in a free
political order, and this restricts political life to a condition of obedience
to thinly abstracted norms and values. Against such conceptions, he argues that the constitution of legitimacy cannot be distilled from any set of
Introduction
9
prior legal principles; the constitution must express the political will of the
people, or of a people, and this will might accommodate notions of freedom and identity that cannot be transposed into universal norms. he constitution of a state, in short, must therefore irstly be political, not legal.
Positivism: Its Survival and Critique If neo-Kantianism was the dominant outlook in debates in practical and political philosophy before 1914,
the dominant outlook in pure legal debate was still positivism. Positivism
originally developed in the early years of the nineteenth century as a school
of legal analysis devoted to clarifying the juridical preconditions for the
emerging capitalist economy in the German states, and for setting out a
systematic account of private law on the foundation of the pandects of Roman law. he early positivist theorists, such as Georg Friedrich Puchta, the
young Rudolf Jhering, and Carl Friedrich von Gerber, focused to a large
extent on clarifying the legal conditions of economic autonomy outside the
state, and on providing a contemporary account of the rights and entitlements imputable to legal subjects in the system of private law. Although
broadly socially progressive and insistent that private-legal order could
only be obtained if the political apparatus took the form of some kind of
Rechtsstaat, the positivists were, to a large extent, rather conservative political thinkers. hey had little express conception of law as a potent political force, and they were content to see the early capitalist economy, with
guarantees of property rights, unrestricted circulation of capital and mobility of labor, coexisting with the remnants of the absolutist political orders
in Prussia and the other smaller German states. Some thinkers close to
the early development of positivism, most notably Anton F. J. hibaut, did
surely use their analysis of private law to propose a conception of the person
under law as a model of public order, on the grounds of which they argued
for the imposition of legal constraints on the state apparatus.32 More generally, though, the positivists tended to emphasize the close relation between
legal analysis and the natural sciences. hey argued that the evolution of
law should be viewed as following purely positive patterns, and that law
should be constructed as an internally and systematically consistent unity
of principles and norms, relatively closed against normative, purposive, or
directly politicized external input.33 Legal prescriptions, in consequence,
should be viewed as nothing more than inner-juridical facts, constructs
formed by the law itself to facilitate its own application. On these grounds,
they concluded that the validity of law depended on its status as an internally consistent set of rules, and it could not be reconstructed or interpreted on the basis of moral prescriptions. hese doctrines culminated in
the conceptual jurisprudence of Bernhard Windscheid, who deined legal
10
Introduction
science exclusively as a discipline for the production of formal concepts to
assist in judicial and legislative procedures.34
Importantly for Schmitt, however, during the later decades of the nineteenth century the original private-legal ideas of positivism were gradually
transformed into a more determinate analysis of the necessities of political
form, and eventually rearticulated as principles of public law. Perhaps the
most signiicant political development in the history of positivism occurred
in the works of Paul Laband,35 who reoriented the early-positivist account
of the individual legal person as a subject of private law to propose an account of the state itself as a legal person. he early positivists had placed at
the heart of modern law a concept of the legal person that saw the rights
and obligations of the person under private law as simple and necessary
constructs of the law itself, not as the result of moral deductions or political
consensus. Laband, then, took this paradigm of private law as the grounding for a conception of the state as a legal person of public or constitutional
law, and he argued that the state could be best understood if it too were
interpreted essentially as a pure legal construct, or as a formal legal person,
whose rights and entitlements were deined in accordance with a system of
pure legal rules: legal rules, that is, which form the state’s constitution. he
state, Laband thus explained, has the power to make the law, and to exercise
certain legal entitlements and authorities. Indeed, the state has the speciic legal attribute that it makes and authorizes laws. Yet, like other legal
persons, the state is not above the law. As a person of public law, it must
also comply with certain legal and procedural obligations, determined in
its own constitutional form. As much as any intellectual, Laband’s thought
ofered a blueprint for the institutional reality of Imperial Germany in the
era of Bismarck (1870–1890) and in the aftermath of this era. His positivist doctrine set out the most perfect endorsement of the limited Rechtsstaat emerging at this time: that is, of a Rechtsstaat deined as democratic
and legitimate by its responsibility to follow certain formal procedures in
its legislative and executive functions, not by any overarching democratic
consensus or popular will formation. Underlying this analysis was the paradoxical conviction that law exists as a formal system of constitutional rules
and procedures independent of the state yet that the state is the ultimate
origin of the law, and legal validity relies lastly on the ability of the state to
produce and to implement both constitutional laws and general statutes.
hrough the latter part of the nineteenth century, the principles of positivism increasingly came under ire from the corporatist perspectives of the
Germanic School of law, irstly expressed by Georg Beseler, then by Johann
Caspar Bluntschli and Otto von Gierke, and later by Hugo Preuß. Indeed,
the deining legal-political controversy of late nineteenth-century Germany
Introduction
11
was the debate between the positivists, on one hand, and the theorists of
the Germanic School, on the other. he theorists of the Germanic School
opposed the positivist conception of the political apparatus as a formal legal
person, and they rejected the transporting of private-legal and Roman-legal
terms into the account of the political system. Such privatist and atomistic tendencies, they argued, were incapable of understanding the genuinely
political content of statehood, and they provided only a thoroughly insubstantial description of the origins of the state’s power. he Germanists argued instead that the legitimate political system is one that expresses and
consolidates the associative life of the national community and that forms
a substantial legal person, integrating into itself all the associational and
organic constituents of civil society.36 he state, they thus concluded, is not
a formal legal person or a formal construct of the law. It is a corporation,
overlying and guiding all of society, but comprising and evolving from a
great number of legal agreements formed between distinct smaller corporations. he antagonism between these schools was manifest through all
the periods of legal codiication and foundation between the uniication
of Germany in 1870–71 and the establishment of the Weimar Republic. Indeed, the major legal documents of the time, especially the Civil Code of
1900 and the Weimar Constitution of 1918–19, might all be seen, in their
technical elements, to revolve around uneasy and luctuating compromises
between positivist and organic ideas about the social origins of the state,
about its legal construction, and about the validity of law. Nowhere is this
more clearly seen than in the works of Max Weber, who in some respects
might be viewed as the dominant political-theoretical inluence on Schmitt,
and whose ideas directly inluenced the early drafts of the Weimar Constitution, especially those aspects of the document that Schmitt viewed most
favorably. Weber rejected the positivist rule-theoretical grounding for law,
and he evidently sought to provide sociological and integrative explanations of the origins of the law and the state. However, in his attachment to
the belief that the strong executive is the origin of law and in his argument
that law can be validated only by the state, he also obviously still subscribed
to basic positivist preconditions.
he immediate horizon for Schmitt’s work, in short, was generally
marked by a deep polarization of legal thinking in its attitude toward positivism. On the one hand, the organic ideas of Preuß and Sinzheimer had a
deep inluence on the Weimar Constitution. On the other hand, positivist
accounts of legal validity remained inluential throughout the 1920s, often
with a neo-Kantian inlection. As was discussed above, Kelsen’s drafts for
the Austrian constitution, anchored in the assumption that the constitution
forms a closed system of norms applied by a constitutional court and that
these norms provide a basis for the regulation of all political activity and all
12
Introduction
social conlict, clearly took positivist conceptions of purity in law to a new
degree of reinement.
Like Weber, Schmitt might be viewed as a theorist who was determined
to break with positivism, but who nonetheless remained attached to some
of its deining claims. His opposition to positivism has several quite distinct
motives. First, he rejects the Labandian and Kelsenian idea of law as a politically neutral sequence of norms, and he turns against all formal-legalist
approaches to law. Second, he clearly thinks that the Labandian notion that
the state makes the law, only then to have its authority limited by the law,
is rather absurd. Indeed, as we have seen, he views the dualist belief that
the laws of the constitution are somehow external or prior to the state as
one of the supremely paradoxical delusions of the tradition of liberal legalstate thinking. In this respect, he repeatedly takes issue with the claim that
the state can be interpreted as a legal construct, resulting from the law’s
own explanations of legal personality and obligation, and he also rejects the
belief that the legal personality of the state depends on its negative compliance with legal or procedural terms set down in the constitution. In fact, the
dualist elements in Labandian positivism must appear to Schmitt almost
as a theoretically devalued expression of Kantian legal politics, which, like
Kantianism, serves only to undermine the voluntaristic essence of statehood. hird, he sets himself against all legal theories that place private-law
models of the person at the center of their account of the law of state; such
approaches, he suggests, are incapable of interpreting the essentially political or collective character of the processes through which a state obtains
legitimacy. Fourth, methodologically, his sociological examination of the
origins of law and his critique of the reduction of legal analysis to a purely
exegetic science also speak emphatically against positivist ideas.
Underlying all these criticisms of positivism is the claim that positivism
misconceives the importance of the state, as a historical and sociological
center of human existence, and, perhaps more important, that it misconceives the essential relation between the constitution of the state and the
state itself. Constitutional law, Schmitt argues simply, cannot be treated as
distinct from politics and the state, and all descriptions of law as a constitutionally countervailing check on politics, as a formal or procedural precondition of political legitimacy, or as a binding system of moral values, simply
relect the self-deceiving and weak-spirited tendencies inherent in Rechtsstaat liberalism. As we have noted, Schmitt sees constitutional law as both
the form and the will of the state, and all other law must be subordinate to
it. Indeed, for Schmitt, positivism perfectly demonstrates the fallacies of
liberalism, at least in the context of modern Germany. He sees positivism
as a doctrine that aims to provide an analysis of law in order to restrict the
arbitrary use of state power, but that cannot avoid positing the state as the
Introduction
13
origin of all law, and so results merely in a conception of the constitution
of the state as a minimal set of procedural norms, which have no actual
constitutive or political importance in forming the state. Schmitt, of course,
distinguishes strictly between politics and law. Indeed, much of his work is
devoted to demonstrating that what is usually considered to be politics is in
fact only a technical manipulation of the law. However, he also argues that
at a constitutional level law cannot be separated out from the state: the constitution of the state is always the inner political will of the state. Positivism
marks the most paradoxical and self-undermining attempt to obscure and
deny this basic fact of political order.
Despite these critical points, however, it might also be argued that
Schmitt retains strong ties to the positivist tradition. Most obviously, his
argument that the strong state is the sole origin of law, and that legal order
is always contingent on the state, does not wholly contradict the positivist
view of the state. More fundamentally, though, the anti-normative position
in Schmitt’s work, claiming that law cannot be made transparent to moral
foundations or ethical imperatives, also places him in the terrain of positivist thinking. In fact, in his argument that law is secondary to politics and
that the political constitution cannot be determined in universal-ethical
categories, Schmitt shares the widespread positivist claim that law should
be taken to relect the “normativity of the factual”: in other words, that law
obtains legitimacy simply because of the fact that it has evolved into a certain positive form and that, supported by a state apparatus, it provides a
concrete order of norms that shape and structure social expectations. In
this respect, the sociological element in Schmitt’s account of legitimate law
places him in proximity to late-positivist views on the relation between
power and norms. Georg Jellinek’s argument that the state has both a sociological aspect and a normative aspect, and that the normative quality of law
is always inseparable from the factual form of the state, is especially close
to Schmitt’s thought.37 Consequently, although he sets himself against the
positivist mainstream of political liberalism in Imperial Germany, Schmitt
shares certain arguments with the more cautious versions of liberalism at
this time, and his thought relects some theoretical perspectives that were
quite widespread on the more conservative fringes of liberal thinking before 1914.
Schmitt in Weimar Politics
Like many of his generation, Schmitt shared the prevailing view toward the
end of the Wilhelmine Reich that the state and its institutions represented
national unity and purpose, while partisan political struggles taking place in
14
Introduction
the popularly elected legislature, the Reichstag, pitted narrow self-interests
against one another in a struggle that resulted in disunity. he aftermath
of World War I, however, caused Schmitt to reconsider his understanding
of the relation of law and the state to politics. In the power vacuum caused
by the sudden collapse of the monarchical regime, there were a number of
attempts by groups on the radical left to seize state authority at a local and
regional level and institute revolutionary change. hough the regular army,
in conjunction with rightist paramilitary groups, the Free Corps, were able
to suppress these threats to the existing order, Schmitt and the bourgeoisie
generally felt personally threatened. Schmitt became convinced that political theory should not merely provide appropriate principles to guide state
action, but must also consider the actual conditions for the exercise of state
authority, so that the state can efectively discharge its mission of producing and upholding moral principles and national unity. A primary issue in
Political heology, for example, was whether legal standards are actually enforced, not merely articulated or deined, and in he Crisis of Parliamentary
Democracy Schmitt warned of the threat to parliamentary democracy from
groups radically opposed to liberal government. One may rightly take issue
with some of Schmitt’s analysis in these and other works, such as Hüter der
Verfassung (Guardian of the Constitution). But it is undeniable that Schmitt
viewed the consideration of the actual exercise of state authority as a central component of political theory.
his concern is relected quite clearly in Constitutional heory, where
Schmitt examines the actual functioning of contrasting systems of government in order to address problems in Weimar Germany. Before turning to
these features of the work in the next section, however, we need to review
some of the practical problems of the Republic. No attempt will be made
to explain the collapse of the Weimar Republic. Instead, we provide a brief
overview of the problems it faced and Schmitt’s role in its politics, which
might aid the reader in evaluating Schmitt’s argument.
While historians disagree about the role played by representatives of
social and political elites, such as Schmitt, in the demise of the Weimar
Republic, it is generally agreed that the Republic did not enjoy widespread
popular support. In other words, there is some truth to the claim that the
Weimar Republic was a democracy without democrats. To be sure, there
were some people who were fully committed to the Republic and the democratic political and social order it sought to institute. hese were greatly
outnumbered, however, irst by those who supported the Republic only
reluctantly and for pragmatic reasons, the so-called republicans of reason
(Vernunftrepublikaner). hese lukewarm supporters of the Republic often
had a preferred alternative to it, whether they expressed it or not, such as
a return to the monarchy or the establishment of a full-ledged socialist
Introduction
15
republic, but they did not believe their preferred option was a viable one
at the time. his group also included those who supported the Republic,
simply because it was the legally constituted authority, and who feared the
possibility of political and social chaos if this authority was undermined.
Worse still, there was no shortage of persons opposed to the Republic
in principle. he radical right sought either a return to the monarchy or
the establishment of some vaguely conceived nationalist alternative. heir
resentment of the Republic was intense and remained unabated throughout the period. A reliable source of hostility toward the Republic was the
mistaken view that it was responsible for the defeat in World War I. In late
1918, the Army Supreme Command, sensing though not acknowledging
imminent defeat, had turned authority over to a civilian provisional government, compelling the latter to accept peace terms from the victorious
allies. At the time, however, German troops were still in enemy territory,
fueling claims that the leaders of the new Republic had “stabbed” the soldiers “in the back” by agreeing to surrender unnecessarily. his bitterness
toward the Republic was intensiied once the new republican leaders were
compelled to accept the humiliating terms of the Versailles Treaty, which
set the inal conditions of the peace, and it escalated still further during the
Ruhr crisis several years later, when the government was forced to admit
defeat in its campaign of resistance to the French occupation of the important industrial area to ensure the fulillment of the reparations payments
imposed under the Versailles Treaty.
he Republic found supporters on the left, but the left in Weimar was
highly divided. he irst governmental coalition of the Republic, known as
the Weimar coalition, the main party of which was the Social Democrats,
had some success in integrating potential radical-leftist opposition to the
Republic. For example, even the leaders of the Workers and Soldiers Councils (Räte), who had been instrumental in bringing down the imperial system and who controlled considerable territory after the war, accepted the
cross-party compromises that formed the basis of the coalition government
in the irst years of the Republic.38 Moreover, some of the major changes in
industrial relations and labor law swept in by the revolution initially satisied many leftists, who might otherwise have pushed for a more far-ranging
socialist revolution. Trade union oicials and Social Democrats thought
that along with the expansion of social welfare programs, these corporatist
mediating devices were the best means of achieving socialist goals within
the established system. But the Social Democrats’ participation in the
Weimar coalition diminished its capacity to speak for the left. A major factor in this was the government’s use of rightist paramilitary groups to put
down a number of leftist attempts to seize control of local and Land-level
governments. he excessive violence of these rightist groups, bolstered by
16
Introduction
the scaled-down military, caused intense resentment on the far left, compelling many to turn their backs on the Social Democrats and to support
more radical alternatives, such as the Independent Social Democrats and
the Communists.
Another factor in the widening divisions on the left was growing dissatisfaction felt by workers with the merely modest gains they had obtained
through the revolution and under the new constitution. In order to avoid a
genuine socialist revolution, during the early years of the Weimar Republic
business leaders felt compelled to agree to a number of changes, such as the
eight-hour day, enhanced social welfare programs, and various corporatist mechanisms for resolving labor disputes (tribunals, shop councils, etc.).
However, after 1923 the international competitive advantage of industry diminished owing to the stabilization of the currency, and the successful suppression of both right- and left-wing attempts to overthrow the Republic
suggested that the possibility of more radical socialist experiments seemed
to have passed. For both reasons, industry became ever less cooperative with
plans for economic reform, though not with all redistribution programs
that continued through the 1920s.39 With the onset of the Great Depression
after the Wall Street crash in 1929, however, business leaders began to work
toward the complete dismantling of the welfare state, and they found considerable support for this from the governments that, after early 1930, relied
on presidential emergency decrees to govern during the inal crisis of the
Republic. Many on the left were greatly disappointed. Unable to counteract this right-wing retrenchment, from 1930 onward the Social Democrats
lost more support to the Communists, who, like the Nazis, were willing to
undermine the Republic to clear the way for an anticipated revolution and
could exploit the despair felt by many workers without ofering a positive
governmental program in the context of the existing state. Overall, therefore, the factionalism of the left meant that the natural support of Weimar
democracy was never fully secure and, in fact, contributed to its instability
and eventual overthrow. he inirm support for the Republic greatly complicated the task of governing. he Weimar coalition of Social Democrats,
Democrats, and Catholic Center Party leaders, who founded the Republic,
faltered quite early. In the election of 1920, the coalition lost its majority in
parliament and never regained it, although the coalition was sporadically
revived after 1920. For the remainder of the Republic, the possibilities for a
majority government were quite limited. One option was to form a minority
government, which required the toleration of parties, such as the German
National People’s Party or the German People’s Party, both of which, but
especially the former, had a tense and, after 1928, openly hostile relationship with the Republic. An alternative to this was to form a Grand Coalition, which at times included parties, such as the Social Democrats and the
Introduction
17
German People’s Party, whose programs were diametrically opposed to one
another in some key respects, especially taxation and welfare. Either way,
the resulting coalitions were chronically unstable.40
Many have claimed that the system of proportional representation was
a primary reason why the Reichstag had diiculty forming efective governments, because it led to the fragmentation of the Reichstag. But the
signiicant continuity between the party structure in the Imperial era and
the early Weimar period suggests that the proportional representation system was not alone responsible for the fragmentation of the party system
in Weimar.41 Also, the fragmentation of the party system did not become
a serious problem until 1928, when splinter parties irst appeared with 17.1
percent of the vote. Moreover, splinter parties were a signiicant feature of
the electoral landscape for only two elections, and this was mostly on the
right end of the spectrum.42
Whatever the cause, the fragmented party system meant that the structural inducements to compromise were relatively weak. Parties sought to
retain core constituencies in tightly contested elections, as the ever more
splintered party system encouraged supporters to jump ship in favor of
parties more attuned to their narrowly deined interests. he moderates
were constantly forced to look over their shoulders at the radical right and
left when contemplating cooperation with other moderate parties.43
Moreover, even if the Reichstag could have agreed on a program of
action, it is not clear what policies it might have been able to implement,
as the chronically weak economy provided it with very little room to maneuver.44 hough the German economy had enormous productive potential after the war, it remained weak throughout the Weimar period. Only by
1927 did it return to 1913 production levels.45
With such a tenuous political base, the early governments were forced
to rely on extraordinary means to govern. Art. 48 of the Constitution permitted the President to exercise emergency powers, for example, to restore
order or compel Land governments to implement federal dictates. In the
Republic’s irst extended crisis, from 1918 to 1923, however, the President
not only made frequent recourse to emergency powers to suppress rebellion and restore order; the irst President, the Social Democrat Friedrich
Ebert, also used emergency powers to institute signiicant policy changes
and budgetary packages. Also in this period, the Reichstag passed enabling
acts that empowered the President to undertake extraordinary measures
and enact policy.46
With the passing of the currency crisis in 1923, the Republic enjoyed ive
years of relative stability and some prosperity. hough the governments in
this period could not rely on a broad base of support and were not able to
institute major reforms, such as reform of the federal system,47 they were
18
Introduction
not targets of coup attempts, and the government did not need presidential emergency powers in order to govern. he political situation deteriorated drastically with the onset of the Great Depression of 1929. With rising
unemployment, the Republic’s capacity to govern through parliament was
again put to the test. Early in the decade the Great Inlation had ironically
allowed the government to soften the common experience of recession
by funding expansive social welfare programs and compensating striking
workers in the Ruhr crisis. With the inlation over and the overall economy
still weak in the late 1920s, the government was unable to fully fund existing
programs and provisions. In consequence, a major breach between the governing parties developed over the issue of unemployment compensation,
which had been ixed at a level highly advantageous for the workforce in
1927, and commitment to which was a key factor in the cohesion of the subsequent cross-party governmental cabinets. Fearing loss of support to the
Communists, the Social Democrats, who had already compromised their
positions on numerous occasions to shore up governing coalitions, were
unwilling to alter the insurance law and to allow an increase in the burden of contribution placed on workers. he Grand Coalition government
(formed in 1928) collapsed in early 1930, and the Republic entered its inal
crisis, which lasted until 1933.
his crisis difered from the initial one in several very important respects. First, economic conditions were much worse. Besides the ending
of inlation, which, as noted, had some perversely positive beneits early
in the decade, the global character of the depression had particularly deleterious efects on Germany. he Americans were no longer willing to provide its allies relief on their debt, which, in turn, made it diicult to grant
further relief to the Germans, though at this point reparations had mostly
become a moot issue. More important, however, American banks were no
longer willing to extend credits to local governments in Germany, which
were burdened with the need to meet the rising demand for welfare beneits. here was also diminished demand for German goods and services,
and less interest in direct investment. Together with long-term structural
changes in the German economy, which had caused signiicant increases
in unemployment apart from the global depression, these more acute economic problems with an international dimension restricted the already
limited range of options open to the government.
Second, the electorate had begun to splinter even more. Besides the
fragmentation of the left, which occurred ten years earlier, now the bourgeois parties were losing support to more radical parties, such as the Nazis.
he potential range of governing coalitions, always limited, was becoming
smaller. Moreover, groups committed to the destruction of the Republic
now held signiicant numbers of seats, so even a minority government
Introduction
19
might not count on parties supportive of the Republic, such as the Social
Democrats, to tolerate their government, in order to prevent further deterioration of the political situation.
he inal diference between the crisis in the late Weimar era and that of
the early 1920s was the outlook of upper-echelon government oicials. As
noted, during the irst crisis of the Republic, the government relied extensively on presidential emergency decrees under Art. 48 and even enabling
acts not merely to reestablish order in response to radical attempts to overthrow the current system. he government also instituted wide-ranging
economic reforms using these extraordinary means. As Schmitt pointed
out in Guardian of the Constitution (1931) and Legality and Legitimacy, the
use of presidential emergency powers was already a well-established practice by the time of the second crisis of the Republic. he point of contention, however, is the purpose and ultimate efect of these two instances of
extraordinary government authority. he irst President, Friedrich Ebert,
was a Social Democrat irmly committed to the Republic and the extensive
economic, social, and political compromises that served as its foundation.
he use of extraordinary means of governance in the irst crisis of the Republic, therefore, was never meant to subvert or replace parliamentary government. It was, rather, seen as a means of responding to a temporary crisis,
which would return parliamentary government to a irm footing once the
crisis was resolved. he second President, by contrast, was former general
Paul von Hindenburg, whose attitude toward the Republic and its liberal
and social democratic foundation was ambivalent at best. hough he was
committed to upholding the Constitution and ensuring the maintenance of
strict legality, Hindenburg sought to place existing institutions on a more
rightist foundation. he cabinets that Hindenburg established after 1930
relected this diferent orientation in that, to varying degrees, they utilized
presidential emergency powers less as a means of reestablishing parliamentary government than of reconstituting core principles and institutions of
the Republic.
In the Republic’s irst decade, Schmitt produced a number of inluential works on parliamentary democracy, political romanticism, and political
Catholicism, among other topics. He also addressed the issue of presidential emergency powers with varying degrees of explicitness.48 hough his
works on emergency powers garnered considerable attention, they did not
exercise signiicant inluence on governmental policy until the inal crisis
of the Republic. An especially important turning point in this regard was
his move to Berlin in 1928, when he left the University of Bonn to take a
position at the Handelshochschule (Business College), in order to be part of
the capital’s intellectual and political life. Schmitt felt quite at home in the
mostly Catholic Rhineland. But residing in the capital, though in a less pres20
Introduction
tigious post, brought him into contact with leading governmental oicials,
giving him an opportunity for direct political inluence. While in Berlin,
for example, he became friends with Johannes Popitz, a state secretary for
inance, and General Kurt von Schleicher, whose behind-the-scenes machinations greatly inluenced government policy in the Republic’s inal crisis.
hrough these contacts in Berlin, Schmitt became directly inluential, as
his earlier writings on emergency powers and constitutional dictatorship
appealed strongly to politicians seeking to reorganize the Republic as a prerogative or presidential regime.
he onset of the Great Depression provided the impetus for Schleicher
to realize his plans for a presidential regime with limited parliamentary
foundation. Under considerably strained inances, the Grand Coalition
led by the Social Democrat Heinrich Mueller in March 1930 resigned after
reaching an impasse over the issue of unemployment compensation. Following Schleicher’s suggestion, President von Hindenburg appointed Heinrich Brüning as Chancellor and charged him with forming a government
above parties. When the Reichstag rejected his economic policies, Brüning
instituted them through a presidential emergency decree under Art. 48.
he Reichstag rescinded the decrees two days later, prompting Brüning to
dissolve parliament and call new elections, which were scheduled for two
months later, on 14 September 1930.
In the interim, the question arose whether the government could govern through emergency decrees while the Reichstag was not in session.
he pressing nature of this question brought Schmitt into true prominence. Seeking a theoretical foundation for the new presidential regime,
the Brüning government requested a Gutachten (consultant’s report) from
Schmitt on the legality of the disputed presidential emergency decrees.
Schmitt argued that this use of presidential emergency powers was appropriate. Because the decrees aimed to reestablish and maintain the existing
constitutional order, they constituted a “commissarial,” not a “sovereign,”
dictatorship, which would replace the existing order. Schmitt also argued
that the government could institute the decrees while the Reichstag was
not in session and continue to govern without a majority until after the
next elections. he President had democratic legitimacy and could exercise
sovereign authority like the Reichstag. Once in session again, the Reichstag would reject the decrees. Until then, they were legitimate state acts.
Moreover, though they were decrees, not statutes, they could substitute for
statutes (Gesetzvertretendeverordnungen) and thus carried the authority of
formal laws.
he election proved a serious miscalculation. he Social Democrats
lost a few seats. he Nazis, however, made signiicant gains, increasing
their share of the vote from twelve to 107 seats, drawing mostly from the
Introduction
21
bourgeois block of parties, while the extreme left went from ifty-four to
seventy-seven seats. his meant that no workable governing majority could
be formed and that parties opposed to the current system could combine to
form so-called negative majorities. Not composed with a view to instituting a positive governmental program, such majorities aimed only at undermining the current system. Parliamentary government was efectively dead.
For the next two years, the government continued to rule by decree due to
the toleration of the Social Democrats, who opposed no-conidence motions in order to prevent further electoral gains by radical parties opposed
to the Republic.
he next major turning point for the Republic and Schmitt’s career came
in 1932. General von Schleicher proposed seeking a non-Nazi rightist government that would be tolerated by the Nazis. To gain the cooperation of
the Nazis, he ofered to call new elections and to lift the ban on the political
activity of the sa and ss. In addition, he convinced President von Hindenburg to dismiss Brüning in favor of Franz von Papen, who then, in July 1932,
used a presidential emergency decree under Art. 48 to initiate the infamous
Preußenschlag: the federal takeover of the sPD-led Prussian Land government by the Reich, under the pretext that this would help restore order in
Prussia. his latter move was also intended to draw support from the Nazis
by showing conservatives that the new government was an efective bulwark against the left.
Like Brüning, Schleicher seriously miscalculated in calling new elections. he non-Nazi right did not make any electoral gains at the expense of
the Nazis, as Schleicher had hoped. In fact, the Nazis doubled their share
in the Reichstag, now having 37.8 percent of the seats. he Communists
improved their standing as well, holding now 14.6 percent. Together with
the Communists, they formed the sort of negative majority Schmitt warned
about that could block any positive governmental action by parliament and
rescind any action taken by the President under Art. 48.49
he ostensible reason for removing the Prussian caretaker government
was to restore order in Prussia, but the Prussian government had been a
fairly efective bulwark against radical threats to the Republic. For example,
though the Weimar coalition lost its majority status at the national level in
1920, it remained in the majority in the Prussian Land parliament until the
election of April 1932. Prussia was the largest Land by far, comprising over
66 percent of German territory and 60 percent of its overall population,
and its police force was equivalent in size to the Reich army. he Land government had used its sizable police force to control radical activity of both
right- and left-wing extremists with some success until the Reich ban on
political activity by the right was lifted. Moreover, the Prussian government
had used its majority in the Land parliament to pass a provision requiring
22
Introduction
an absolute majority for the election of the next Minister President. his
provision prevented the Nazis from taking control of the Prussian government after its electoral victory in 1932, and it permitted the anti-Nazi caretaker government of the Social Democrat Otto Braun to stay in power after
the election.
While the takeover of the Prussian government was of questionable value
in terms of maintaining the order and security of the Reich, it was an important part of the Papen government’s plan for constitutional reform. Speciically, the Papen government wanted to establish an aristocratic upper
house as a counterweight to the Reichstag and institute changes in voting
law in order to limit popular sovereignty. Bringing the Prussian province
under central control would eliminate a potential source of opposition to
its plans.
Schmitt had long advocated greater centralization as a hedge against
German particularism. But he opposed any constitutional changes in the
near term, particularly those undertaken by the presidential regime. he
presidential government, in his view, was legitimate as a commissarial, not
a sovereign, dictatorship. In other words, the government could not institute fundamental changes in the basic constitutional order via presidential emergency decrees. It could only institute temporary changes meant to
bolster the existing constitutional order.
Schmitt defended the takeover of the Prussian government in these
terms once he was commissioned to represent the Reich government in the
trial before the Supreme Court when it was considering the legality of the
government’s action. Schmitt argued that the Reich government’s actions
were an appropriate exercise of Art. 48, because the Land government’s
policies threatened to push Prussia into a state of civil war. he preelection provision stipulating an absolute majority for the election of a Minister
President, Schmitt argued, was an instance of one political party utilizing
governmental power to exclude another from an “equal chance” at political power. Schmitt’s opponents pointed out that the Prussian government’s
action was an attempt to realize Schmitt’s position in Legality and Legitimacy, published in the summer of 1932, in which he argued that parties
opposed to the current system should not be granted an equal chance to
fundamentally alter the system via legal means. Schmitt considered such
use of governmental power illegitimate, because in his view only the President, standing above political parties as a neutral third, could legitimately
make such a determination.50 Leaving such a decision to political parties
in power, he argued, might prompt parties fearing exclusion in this way to
engage in civil war as a means of self-defense.
he Staatsgerichtshof ruled that the Reich takeover of the Prussian government was a legitimate exercise of state authority, in order to ensure the
Introduction
23
order and security of the Reich. However, the Reich government could not
entirely displace Land institutions. he Prussian government could continue to represent Prussia in the Prussian parliament, in the Reichsrat, and
in relations with other Land governments.
hough the Reich government could not legally subsume Prussian governmental institutions, it was now efectively the governmental authority in
Prussia. Despite this considerable legal victory, Papen’s more general plans
for constitutional reform were not as successful. President von Hindenburg
refused to agree to the establishment of a state of emergency, which would
permit the Papen regime to institute its reform plans without parliamentary
support. Moreover, Hindenburg had lost conidence in Papen and agreed
to permit Schleicher to attempt a rightist-led popular front government
as an alternative to the Nazis. A key component of this plan was to seek to
detach the left wing of the Nazi party and join its support with that of the
Trade Unions and Social Democrats by proposing extensive public works
programs, among other measures. Both intended partners in this popular
front government, the business community and trade unions, continued to
mistrust one another and the Schleicher government. Without the necessary parliamentary support, the Schleicher government failed as an alternative to Papen’s cabinet of barons.
With new elections looming, the question of whether President von
Hindenburg should continue to govern by emergency decree without parliamentary support became increasingly pressing and contested. he President had always favored rightist cabinets and was willing to govern by decree
for extended periods without parliamentary support. But the law stipulated
that elections had to be called within a speciied period. Deferring elections
beyond this point would be a strict violation of the law. Schmitt did not support Papen’s idea of using a state of emergency to institute constitutional
reform, irst because this would constitute a sovereign, not a commissarial,
dictatorship, but also because it might spark outright civil war. Nonetheless, in his opinion, a violation of strict legality in the form of continuing
government by decree without new elections was preferable to a Nazi-led
government. Hindenburg, however, declined to pursue either alternative,
opting instead to request that Hitler, as leader of the largest parliamentary
party, form a cabinet that included traditional nationalists, such as Papen,
who believed that his presence would serve to moderate Hitler. his belief,
obviously, proved illusory. Within relatively short order, the Hitler government used legal means and political intimidation to consolidate its hold on
power and eventually establish a totalitarian dictatorship.
here is no easy explanation for the failure of the Weimar Republic. It
is hard to imagine more diicult circumstances for the establishment of a
republic. A chronically weak economy, domestic and foreign hostility, rapid
24
Introduction
social and cultural change together left the leaders of the Republic limited
options in responding to pressing problems of the day. A long-standing
democratic regime would have been placed under considerable strain under
these circumstances. Such strain proved too much for a ledgling republic
like Weimar, established in a nation with a short history of national unity
and with little experience of successful democratic rule. Perhaps given more
time, the Republic might have reached workable compromises on divisive
issues, which, in turn, might have provided it suicient support to weather
periodic storms of discontent.
Given these circumstances, it might be too much to say that the Republic’s collapse was due to the failure of elites. By 1930, the Republic was in a
state of paralysis, and its options for governing by parliament were quite
limited. At the same time, it is clear that the Republic’s elites did not serve
it well at key points. he governments under President von Hindenburg in
the inal crisis of the Republic (those of Brüning and Schleicher) were at
best not committed to exploring options for governing with parliament, if
they existed. And at worst, these governments were intent on undermining
the Republic and replacing it with their preferred alternative (Papen). In
either case, government oicials displayed considerable naïveté in believing
that the governmental crises they at least helped accentuate, if not orchestrate, would in the end work to their political advantage and that they could
control implacable opponents of the Republic, like the Nazis.
Nonetheless, in view of the horrendous consequences of the Nazi
regime, it is understandable that any action that seemed to contribute to
the Republic’s demise and establishment of the Nazi regime would spark
outrage. his was certainly true of Schmitt’s role in the presidential governments between 1930 and 1933. he potential for presidential government
via Art. 48 had been amply demonstrated during the irst crisis of the Republic. While the move toward presidential government had already been
made by Brüning and Schleicher, Schmitt certainly rendered the institutional implications of Art. 48 more explicit and provided these implications
with a theoretical foundation more congenial to the minds of authoritarian
politicians and to some degree the interested public as well. he same applies to his collaboration with the Nazis between 1933 and 1936. Whatever
one’s position on the underlying rationale and practical import of Schmitt’s
support of the regime, it is understandable that a cloud of suspicion rests
over Schmitt and his work generally.
It is not our aim to dispel this cloud of suspicion, nor do we mean to ofer
a defense of Schmitt’s role in interwar Germany. In the following section,
however, we hope to show that Constitutional heory is distinctive among
Schmitt’s works from the period. As a sophisticated work in comparative
constitutionalism, more speciically, it is deserving of careful attention by
Introduction
25
contemporary and future readers concerned not just with the problems of
the Weimar Constitution and German constitutionalism in particular, but
with the enduring problems of constitutional government more generally.
Methodology in the Weimar-Era Works
Few thinkers have played as central a role in politics as Schmitt did from
1930 to 1936. Born into a devoutly Catholic family midway through the
Reich period,51 it seemed likely that Schmitt would lead an intellectual life
quite detached from politics. He chose law as a subject almost on a whim,
but he pursued its study in a way typical of the time in that his early scholarly work on law relected the reigning neo-Kantianism, which sought to
avoid political considerations in jurisprudence. he revolutionary tumult
of 1918–19, however, convinced Schmitt of the importance of politics, so
he turned his attention irst to a serious study of political theory and then
to a consideration of the actual functioning of contrasting systems of government.
Earlier works like Political heology and he Crisis of Parliamentary
Democracy stressed, respectively, the need to consider the actual enforcement of legal norms and the tangible threats to parliamentary democracy.
But these works mostly made reference to these issues as central to normative theory without supplying extensive analysis or much evidence to support their claims, and they reach quite immoderate conclusions about the
nature of sovereignty and the viability of parliamentary government. Subsequent works also made reference to the need to examine how institutions
actually function. he Guardian of the Constitution, for example, emphasized the institutional limitations of the judiciary in defending the constitution against radical opponents, while Legality and Legitimacy reiterated
Schmitt’s claim from Guardian that only the President was institutionally
suited to fulill this role. Of these two later works, however, only the latter
provided extensive analysis and supporting evidence for its conclusions.
Legality and Legitimacy was primarily conceptual in methodological and
substantive terms. But in both works, Schmitt does not fully acknowledge
the limitations of his own position or conscientiously consider alternatives
to his preferred institutional solution, presidential government, which
tended to collapse the system of separation of powers and provide few tangible limitations on executive action.
While one can raise objections to Schmitt’s conclusions on particular
issues, Constitutional heory is his most successful efort at linking theory
and practice in political theory. First, Constitutional heory is not only the
most moderate of his works in terms of its substantive conclusions with
26
Introduction
regard to democratic government. hese conclusions are also tempered by
a recognition of their limitations. his is clear, for example, in his discussion of the role of the President in the Weimar constitutional system. On
Schmitt’s account in Constitutional heory, the President is ultimately the
central point of the system, but Schmitt’s portrayal of the supremacy of the
President recognizes limitations of the oice and its position within a larger
constitutional system. he directly elected President can exert considerable
leverage over a parliament organized by political parties, but the parliament, in this case the Reichstag, retains important checks on presidential
authority, such as the power to rescind presidential emergency decrees.
Also, the President’s ability to escape the political polarization hindering
the Reichstag depends to a great extent on the personal characteristics of
the particular occupant. In the context of Constitutional heory as a whole,
however, the President gains the upper hand. Because the President is directly elected, the oice bears democratic legitimacy not accorded an unelected head of state or even the representative parliament. Moreover, while
the President retains many of the competencies exercised by the Kaiser
under the Imperial system, such as command of the armed forces (192), he
can also make recourse to expansive emergency powers. hese emergency
powers do not include setting aside the entire constitution, promulgating
a new constitution, or even nullifying particular provisions. But the President can suspend seven important constitutional rights enumerated in Art.
48(2).52 And Schmitt’s insistence in this context that the constitution as a
whole is superior to any particular provision suggests that he believes the
President can suspend any individual provision, not merely those mentioned in Art. 48(2), if he deems this necessary to save the constitutional
system as a whole (26–27 and 109–12).53 hat the Reichstag can repeal
emergency decrees is of little consequence in view of its chronic inefectiveness. Besides, Schmitt argues that the President can dissolve the Reichstag,
even if this exceeds narrow legal limits, if he deems a no-conidence vote
is merely an attempt at obstruction (357–58). his means that the President
can efectively circumvent parliamentary control, as Schmitt urged late in
the Republic.54
Constitutional heory is also the most concrete-historical of Schmitt’s
Weimar-era works. In addition to developing more fully some of Schmitt’s
positions from earlier essays, it ofers an impressive schematic treatment of
the important lines of development and of the actual functioning of major
systems of government, particularly as these bear on central normative
issues in contemporary government. he work is divided into four major
parts, and each part examines, in order, the concept of constitutions (2–
121), the legal (125–220) and the political (223–359) components of constitutions, and the constitutional theory of federations (363–91). Each of these
Introduction
27
parts is divided into sections examining topics such as the absolute (3–11)
and relative (11–20) concepts of constitutions. Although within these topics
Schmitt discusses major developments, there is no overarching narrative or
chronology. His aim is to identify essential continuities and discontinuities
in the development of key concepts and consider their relevance for major
features of the Weimar Constitution. He accomplishes this by examining
the principal features of the Weimar Constitution in reference to major
developments in constitutional government in other countries, principally
France and, to a lesser degree, both the United Kingdom and the United
States, but other countries as well. In this way, he intends to identify the
peculiar challenges facing the Weimar Constitution and to consider the
question of what might be done to make it more viable as a constitutional
system.
Along the way, Schmitt discusses 103 of the Constitution’s 181 provisions, though only to illustrate larger issues. Art. 153 (concerning the right
to property), for example, is considered under the headings of the “positive
concept of a constitution” (27), constitutional amendments (101 and 111),
the concept of statutes in the Rechtsstaat (152), and constitutional rights
(160, 165, 166, 171, and 172). Schmitt’s more general concern in addressing constitutional provisions in reference to a number of diferent issues
is to provide a “systematic framework” for considering the problems of the
“bourgeois Rechtsstaat” (XL). In this way, Schmitt seeks to shift the center of gravity of legal theory debates away from the analysis of individual
provisions of the Weimar Constitution by examining the Constitution in
a much broader comparative historical framework, one in which the issue
of practical relevance of the resulting normative concepts is addressed directly through the process of concept formation.
Schmitt’s comparative-historical approach in Constitutional heory distinguishes the work from constitutional commentaries at the time. Gerhard
Anschütz’s classic commentary on the Weimar Constitution is an illuminating point of comparison in this respect. In the introduction to this work,55
Anschütz addresses a few general issues, such as whether revolutions are
legitimate sources of new laws and whether, if at all, there is legal continuity
with the prewar system.56 he remainder of the work, however, is organized
around the particular provisions of the Constitution, treated in chronological order. In regard to each article, Anschütz lists the relevant literature,
analyzes its scope and substance, and discusses the political-legal practice
relating to it. hroughout, Anschütz does not engage in a signiicant degree
of comparative-historical analysis, nor does he address the practical eicacy of particular provisions, let alone of the Constitution as a whole.
Moreover, Schmitt’s use of comparative history is a signiicant departure from his methodology in earlier works, which, when historical, was
28
Introduction
centered on intellectual history. A useful point of comparison is one of
Schmitt’s most inluential works, the short polemical tract titled he Crisis
of Parliamentary Democracy. his controversial work appeared originally
in 1923, the high point of the irst extended crisis of the Republic, and it was
reprinted with a new preface in 1926 at approximately the middle point of
a period of relative stability. Schmitt’s primary claim in Crisis is that parliamentary democracy is facing a challenge to its very foundations, because
important social changes, summarized under the heading “modern mass
democracy,” render problematical the open discussion essential to this
form of government. Universal sufrage has given rise to “mass parties,”
which demand total loyalty from their members and which are expert at the
manipulation of the rapidly changing communications media. Parliamentary representatives are no longer “independent” of particular interests and
constituencies, willing to concede the force of the better argument. hey
are the instruments of various political-social groups that determine their
position in closed session outside parliament or in its back chambers and
that are unwilling to compromise their positions once they are determined.
Parliament has become a “showplace,” controlled by groups, many of which
were irresponsible in that they have no genuine commitment to the system
other than to use it for their own purposes.
Among the many critical responses at the time, one deserving special
mention is that by Richard homa, who questioned why Schmitt sought out
the “moral underpinnings” of parliamentary government in works written
long ago in response to signiicantly diferent problems. homa suggested
that, to discern the “purpose” of parliamentary government, Schmitt would
do better to examine the works of those actually involved in the establishment of the current system, such as Hugo Preuß, Friedrich Naumann, and
Max Weber, because they were responding directly to current conditions.57
homa’s criticisms obviously struck a nerve. For not only does Schmitt formally respond to homa in the preface to the second edition of Crisis, but
in Constitutional heory Schmitt bitterly recounts homa’s charge that he
wrongly focuses on the “moldy greats” of political theory in addressing the
problems of parliament (e.g., 313).58 Moreover, changes in Schmitt’s method
suggest he is responding to homa’s insistence on the need for a more pragmatic, context-sensitive approach. In the preface to the second edition of
Crisis, for example, Schmitt mostly only reiterates his claim that the present
challenge to parliamentary democracy was a “spiritual” one rooted in fundamental social changes since the nineteenth century. Any approach to reform not focusing on the moral/intellectual foundations of parliamentary
government will not get at the root of the problem. Parliaments might continue to function, in Schmitt’s view, but only as hollow shells teetering on
dangerously unstable axes. In Constitutional heory, by contrast, Schmitt
Introduction
29
examines the actual history of parliamentary government in Europe in
order to address the distinctive problems of the Weimar Republic. Reinhard Mehring and William Scheuerman are both right in claiming that
there is a sense in which Schmitt’s elaborate comparative history in Constitutional heory constitutes a more empirical reworking of his argument in
Crisis.59 Schmitt reviews the “ideal foundations” of parliamentary government, though with much greater attention to the actual legal, political, and
social developments that render parliamentary democracy obsolete in his
view (307–19). Nonetheless, Schmitt’s treatment of parliament in Constitutional heory constitutes an important shift in emphasis from the interrelationships among normative theory, social change, and politics, on the
one hand, to the structural determinants of the Weimar state crisis, on the
other.
Note, for example, the treatment of the importance of social change for
the ideal of government by discussion, which was so prominent in Crisis.
While an examination of the ideal of government by discussion (307–19) is
the irst substantive section of Schmitt’s treatment of parliament in Constitutional heory, it is arguable that it forms the pivot point of his approach. In
fact, this section is oddly out of place in the context of the entire discussion
(303–59). It is preceded by a brief section (303–7), which efectively serves
as an introduction to the subsequent problem-oriented history of the various structural means of organizing political leadership. In this introductory section, Schmitt sketches the four “parliamentary subsystems,” which
together form an “elastic, comprehensive system.” Schmitt argues that it is
“necessary to distinguish among these subsystems in order to understand
parliamentary government in general, but above all to understand the exceptionally diicult and rather opaque system established by the Weimar
Constitution” (306–7, our emphasis). With the aid of this conceptual framework, Schmitt examines how constitutional structures in Belgium, France,
and Germany relect and shape political practice in these countries (320–
59).
his shift in emphasis toward a comparative-historical analysis of the
structural determinants of political practice is also indicated by the fact
that besides the section examining the ideal of government by discussion,
the only other point at which analysis of social change igures prominently
is the brief review of English parliamentary practice (320–26). hese sections aim primarily at revealing the hollowness of German liberal visions of
parliamentary government, which are based on the English model. Schmitt
argues, for example, that the cabinet, not the allegedly sovereign parliament, provided political leadership in the nineteenth century. he parliament was at best the point of connection between the electorate that
reached political decisions and the government, which provided political
30
Introduction
leadership. his partial deconstruction of Schmitt’s own ideal standard is,
indeed, peculiar, if his purpose is to lend more muscle to the rather sketchy
narrative of Crisis.
hese features of Schmitt’s treatment of parliament in Constitutional
heory suggest that Schmitt seeks to engage critics like homa on the concrete institutional level as well. hrough his comparative history of parliamentary government, Schmitt sets out to show the ways in which the
peculiar constitutional structure of the Weimar Republic relects more or
less unique German developments and concerns (334–38 and340–41) and
why Europe-wide trends in economics, law, politics, and society have been
telescoped in a particularly disastrous way in Weimar. More important,
Schmitt attempts to identify how the Republic’s constitutional structure
simultaneously limits and enhances the ability of particular institutions and
that of the state generally to pursue coherent long-term policies (343–59).
Schmitt’s enhanced concern in Constitutional heory with institutional
detail and his use of comparative history to address the practical problems
of the contemporary system calls to mind Weber’s political writings in the
aftermath of World War I. Near the end of World War I, other systems
were proposed as models for the reformation of the German system, raising
the question of whether and to what extent these institutions were suitable for the German context with its unique characteristics. Comparative
studies, Weber argued, indicate precise points of similarity and diference
between the respective contexts, which aid in addressing this important
question.60 But in these political writings, Weber did not apply the ideal
typical method, relying instead on more impressionistic contrasts between
systems.61 Weber’s refusal to apply ideal types in his own normative arguments relects his concern not to lend false scientiic status to his claims.
“he coming of age of science always implies the transcendence of the ideal
type,” in Weber’s view.62 Take, for example, “Benjamin Constant’s theory of
the ancient state,” which, according to Weber, “serves as a harbor until one
has learned to navigate safely in the vast sea of empirical facts.” Weber argued that it “is still legitimate today to use the brilliant Constant hypothesis
to demonstrate certain aspects and historically unique features of ancient
political life, as long as one carefully bears in mind its ideal-typical character.”63 For viewing ideal types as empirically valid is tantamount to assuming an airmative, decidedly one-sided answer to the important question of
the cultural signiicance of the object of study.64
Schmitt’s approach to comparative history in Constitutional heory incorporates some aspects of Weber’s ideal typical method.65 Like Weber,
for example, Schmitt develops guiding concepts through one-sided exaggerations of certain aspects of his object of study, in this case the Western
constitutional tradition. As such, Schmitt’s concepts may prove useful as
Introduction
31
heuristic devices, providing a means of comparison of actual instances of
constitution making. As with Weber’s he Protestant Ethic and the Spirit
of Capitalism and other works utilizing ideal types,66 the appropriateness
for this purpose of concepts such as that of identity does not depend on
whether they accurately portray historical individuals narrowly deined,
since such artiicial constructs necessarily obscure important features of
events and developments in order to achieve conceptual clarity. he question is whether and to what extent the categories enable us to determine
the concrete signiicance for a particular problem of certain works, events,
and developments. In Dictatorship, for example, Schmitt uses the concepts
of the sovereign and commissarial forms of dictatorship to identify and
analyze changes in the theory and practice of constitutional dictatorship
in the modern era. One can also say this of Constitutional heory insofar
as Schmitt uses the concept of identity to establish a spectrum of actual
instances of constitution making. Schmitt’s concept of identity resembles
an ideal type in that it does not represent what is “common” to the myriad
instances of constitution making before the founding of the Weimar Republic. In fact, according to Schmitt, the French Revolution was the irst instance of a people reaching a decision regarding their political existence as
a whole. Schmitt then argues that other instances of constitution making,
such as the English Revolution of 1688 and the American Revolution of
1776, deviate in diferent respects from the French model. Using certain
aspects of the French Revolution as a baseline, in other words, Schmitt executes a “systematic” study of constitution making.
he problem with Schmitt’s use of concepts in Constitutional heory is
that he has not taken fully to heart Weber’s admonition that for concepts to
be used efectively in historical research they must be carefully calibrated
to the range of phenomena under consideration. As the scope of the study
increases, a point is reached beyond which one must break the concepts
down into several, less general categories covering narrower sets of phenomena. In a subsequent work, he Guardian of the Constitution, Schmitt
responds partly to this diiculty by using conceptual frameworks that more
efectively capture dynamic relationships among diverse phenomena relevant for particular policy questions. At the center of Guardian is a relatively brief discussion of the Weimar state crisis,67 the central premise of
which is that one cannot adequately address the Republic’s governability
problems without a clear understanding of the concrete conditions under
which its constitutional system operates. Schmitt seeks to determine how
the economic, legal, political, and social trends summarized under three
concepts—federalism, pluralism, and polycracy—intersect to limit the
range of options available to the Weimar state. As concepts, these terms do
not accurately portray the complex reality of politics and society. In fact,
32
Introduction
taken alone, they misrepresent actual conditions, for they typically appear
in combination with one or the other factor. But the three concepts provide
points of departure for examining the complex reality of state action in the
Weimar Republic.68
At key points in Constitutional heory, however, Schmitt’s conceptual
schema is not highly diferentiated. On Schmitt’s account, for example,
the relevant diferences between the two seminal instances of constitution
making are attributable to the fact that the French state facilitated the development of a common identity among the French before the Revolution
by centralizing political authority to a much greater degree than occurred
in the United States prior to the American Revolution. here is, indeed, a
striking diference between the French and American constitutional traditions regarding degrees of administrative centralization, as emphasized by
Tocqueville in his classic accounts of the respective political traditions.69
And it is true that the French came to understand themselves as a political community far earlier than the Americans, for whom a national consciousness emerged briely during the Revolutionary War, only to be subordinated to the long-standing state loyalties until after the Civil War.70 But
it is not clear that the French national identity forged by the Old Regime
carries the explanatory power Schmitt ascribes to it, for the national political consciousness that he sees as a prerequisite for a genuine act of constitution making was produced to a great extent by the Revolution itself, as
illustrated by the so-called Municipal Revolution.71 he fact that the communes tended to support revolutionary changes in Paris lends credence to
Schmitt’s claim about the importance of preexisting unity to French eforts
at constitution making. However, the more important point in terms of
Schmitt’s argument is the fact that the committees did not tend to support
the National Assembly and then the Convention because of a preexisting
national identity. Rather, their support of central authorities stemmed from
the perceived national dimension of local problems. When one attends to
events on the ground, so to speak, one gets an entirely diferent image than
that of the French nation acting in its collective capacity to provide itself a
new political form. Instead, one sees a series of ad hoc responses to pressing circumstances, with the only common thread being the perceived need
for some fundamental change in the existing system. In this crucial respect,
the French and American Revolutions resemble one another a good deal
more than Schmitt claims.72 he connection Schmitt makes between degrees of centralization/decentralization, on the one hand, and national/
subnational identities, on the other, is too crude to capture the complex
dynamics of constitution making in France and the United States, let alone
more generally. Instead of focusing on the degree of centralization of state
authority generally as a possible factor in the formation of national idenIntroduction
33
tity, as does Schmitt, one might distinguish between centralization in terms
of legislative and administrative authority to obtain a more ine-grained
understanding of the development and character of national identity. For
if one does not limit the scope of coverage of conceptual devices in this
way, the concepts tend to obscure rather than help identify concrete points
of similarity and diference that are potentially relevant to the question
examined. As Weber puts it, “he more inclusive the relationships to be
presented, and the more many-sided their cultural signiicance has been,
the more their comprehensive systematic exposition in a conceptual system
approximates the character of an ideal type, and the less is it possible to
operate with one concept.”73
While perhaps not insigniicant, this criticism misses the point in an important sense. For Schmitt’s conceptually driven comparative histories aim
not at explicating important concepts and developments, though Schmitt’s
schematic histories are often illuminating in this regard. His point, rather,
is to provide a politically eicacious form of constitutional theory. In other
words, the most important consideration for Schmitt is not whether individual exaggerations or inaccuracies yield greater historical or sociological insight. What matters is whether the resulting constitutional theory responds efectively to the unique problems of the Weimar Republic.
In most other works from the Weimar period, Schmitt’s desire for a
politically eicacious legal and political theory led him to portray liberal
theory and practice as outdated at best. Constitutional heory, however, is
quite diferent. Here, this desire leads him not to attempt to discredit liberal
constitutionalism so much as to transform it from the inside out. More speciically, Schmitt’s one-sided reading of Sieyès’s concept of a radical break
with the past, when combined with the aforementioned exaggeration of
the diferences between the French and American instances of constitution
making in terms of national identity, enables Schmitt to obscure a very important commonality between the two seminal instances of constitution
making: that central to these revolutions and the traditions of constitutional theory and practice they inspired is the idea that the legitimacy of
constitutions is intimately bound up with the protection of individual liberty, however one understands it. In other words, in arguing that the central
lesson of these classic instances of liberal constitution making, particularly
that stemming from the French Revolution, is the idea that the legitimacy
of constitutions depends on a sovereign decision of the people, and not
whether the resulting constitution protects individual liberty, Schmitt
efectively shifts the theoretical epicenter of the liberal constitutional tradition. By separating what he terms the legal and political components of
the constitution in this way, Schmitt seeks to provide his understanding of
34
Introduction
a strong state, with its wide-ranging executive authority, a solid normative
foundation in the liberal constitutional tradition.74
We will leave it to the reader to evaluate the legitimacy and efectiveness of Schmitt’s project of theoretical reconstruction. Our aim is the more
limited one of making clear the distinctive place Schmitt’s Constitutional
heory holds within his Weimar-era work generally. We have also attempted
to show that Constitutional heory presents challenges to liberal theory and
practice, which are quite diferent from those of his other, more polemical
works of the period. With this in mind, it is now necessary to consider the
wider theoretical ramiications of Schmitt’s thought, particularly his insistence on a strict distinction between law and politics in the modern state.
Schmitt’s Inluence in Subsequent Debates
Schmitt’s work sets out a series of far-reaching claims about the law and
the state. he most important of these are that law on its own is not capable
of solving social antagonism or of mediating social tensions, that political
unity or a political will must preexist the law if law is to be accepted as
legitimate, and that political legitimacy must have a determinate substantial content. Each of these claims leads to the conclusion that political legitimacy cannot necessarily or reliably be derived from technical, material, or
formal-legal arrangements or contracts, or from majoritarian mandates or
interparty bargains. hey also entail seeing legitimacy as depending on the
existence of prior common agreements on all issues possessing political
relevance. In each of these respects, Schmitt’s work encapsulates many deining political perspectives of interwar European conservatism, and his
ideas form a trenchant critical commentary on the diferent experiments
with democracy in Central Europe after 1918. Schmitt clearly implies that
the new democracies of this period tended badly to miscomprehend the
character of true democracy, and, by confusing democracy with pluralism,
party-based majoritarianism, welfarism, and liberalism, they jeopardized
their own stability, and so inally proved incapable of producing long-term
principles for secure governance.
Naturally, Schmitt’s ideas have been primarily received in the conservative fringes of mainstream political thought, and much subsequent rightleaning debate has been deeply marked by the antinomical structure of the
arguments and concepts that underpin Constitutional heory. his is especially evident in Schmitt’s views on the antinomy between law and constitutional legitimacy, the treatment of which is fundamental to this work. As
discussed above, these ideas gained particular purchase during the period
Introduction
35
1930–33. Clearly, Schmitt’s tendency to view the main features of the liberal
Rechtsstaat, especially the separation of the legislature and the executive,
the commitment to representative pluralism, and the formal catalogues
of rights, as signs that the will of the state has been subject to destabilizing and delegitimizing compromises was open to a positive reception by
politicians, such as Papen, Schleicher, and Hindenburg, who viewed the
strong uniied executive as the bastion of political stability. Similarly, it is
also not diicult to discern the abiding inluence of these ideas in certain
tendencies in the reemergence of conservative political theory in post-1945
Germany. Even after the foundation of the Federal Republic of Germany
in 1949, a number of political and sociological theorists reappeared who
were prepared to use Schmittian ideas to argue against the restitution of
pure-parliamentary democracy under Konrad Adenauer and, above all, to
protest the linkage of democracy and social provision in the nascent post1949 welfare state. Such theorists tended to use Schmitt’s earlier analyses of
constitutional law to argue that the political system of the Federal Republic replicated the structural weaknesses of the Weimar state by conlating
the pure political order of the constitution with inferior laws relating to
material and economic provision. he post-1949 German right, therefore,
saw the redistributive state of the Federal Republic, like that of the Weimar
Republic, as a state that obstructed the evolution of a genuinely legitimized
constitutional order, which was founded in an overarching popular will. Examples of this can be seen in the constitutional writings of Werner Weber
and Ernst Forsthof.75
However, the major arguments in Constitutional heory also contain
implications that hold a theoretical appeal for political relection at a number of very diferent points in the political spectrum and that cannot be restricted to obviously reactionary perspectives. For example, the outstanding political theorists of the irst generation of the Frankfurt School, Franz
Neumann and Otto Kirchheimer, elaborated a strongly Schmittian analysis of majoritarian and liberal democracy. his analysis employed Schmitt’s
distinction between constitutional law and subsidiary legal adjuncts, and it
linked Schmitt’s insights to a political-Marxist account of the legitimating
processes in modern democracies and of the role of modern law in such
democracies. Kirchheimer especially argued that the basis of legitimacy in
modern capitalist democracies is always undermined by the fact that the fundamental decisions regarding the constitutional form of the state are forced
to coexist with more technical legal principles, especially in the sphere of
private law.76 As a consequence, Kirchheimer asserted that the principles
of capitalist private law always obtain a certain primacy over constitutional
law, and the founding conditions of political existence expressed in the constitution are eroded or even invalidated by the fact that the applicability of
36
Introduction
constitutional law is limited by legal principles not subject to direct political control. Capitalist democracies, Kirchheimer concluded, always lack
legitimate foundations, struggle to generate laws that are universally recognized as consistent and legitimate, and tend to employ law as a medium for
balancing distinct social and economic interests, without a genuine consensual basis. In this argument, Kirchheimer extended Schmitt’s theory of
constitutional law to assert that authentic constitutional legitimacy is only
possible where one volitional decision informs and gives structure to all the
areas of society that can be legally regulated, and where a total political and
economic will sufuses all spheres of social interaction and exchange.77 his
programmatic Marxist type of constitutional voluntarism is quite expressly
at odds with Schmitt’s own political intentions. However, it is not diicult
to see how Schmitt’s constitutional analysis could be taken as the basis for
a radical critique of the relation between democratic constitutional law and
capitalist private law and hence for a political program that accentuates the
necessary economic and legal-political unity of all society.
After 1949, similar claims about the relation between legality, legitimacy,
and the nature of the democratic constitution began once more to assume
central importance for left-oriented theory in Germany, especially in debates about the constitutional form and legitimacy of the Federal Republic.
In his writings of the early 1950s, for example, Franz Neumann critically
reconstructed Schmittian ideas about constitutional law to suggest that the
process of constitutional foundation should be deined as the existential
horizon of political life, providing a framework for the active-democratic
reconciliation of social freedom and political power.78 Underlying Neumann’s account of constitutional life was the claim, clearly derived from
Schmitt, that the political resource of legitimacy is always prior to the law,
and that law obtains validity as it communicates elements of a publicly and
interactively established political will. At diferent times in his early trajectory, Jürgen Habermas also engaged in a reception of Schmitt’s arguments,
though clearly harnessing these views to a radical-democratic conception
of legitimate political order. Most obviously, in Structural Transformation
of the Public Sphere (1962), Habermas joined Neumann and Kirchheimer
in asserting that modern capitalist democracies are invariably marked by a
tension between the factual conditions of legal application and the democratic principles that support the legitimacy of the constitution. In political
systems commonly viewed as democratic, he explained, the unitary political will of the people is undermined by corporate techniques of economic
management and by compromises between political parties.79 As a result,
laws do not relect commonly formed interests or agreements, but they are
utilized primarily for administering material goods in order to maintain
basic conditions of social harmony, and they always manifest weaknesses
Introduction
37
at the heart of the polity, both structurally and in terms of legitimacy. In
modern corporate democracies, Habermas therefore argued, law does not
and cannot represent a clear political will, and the original principles and
rights anchored in democratic constitutions are invariably sacriiced and
materialized by technical, socially palliative, and regulatory strategies. For
Habermas, only a democratic polity that is based in universal agreements
that are obtained in communicative interaction in a free public sphere and
that communicates these agreements in the form of constitutional law can
be authentically legitimate.80
Later in his career, Schmittian ideas continued critically to inform Habermas’s relections on the role of the welfare state in modern democracy, culminating in his anti-welfarist strictures in the early 1970s. He claimed that
the welfare states of capitalist democracies tie their legitimacy to the fulillment of economic prerogatives unlikely to ind universal-rational agreement among their citizens. hese states integrate their citizens through
falsely materialized compromises between rival interest groups and rival
political wills, and the conditions of these compromises prevent the foundation of a constitutional order that is universalizable and thus integrally
legitimate.81 Modern welfare states use the law as a technical or prerogative
medium for securing material consensus between antagonistic social formations in order to engineer chimerical or fragile forms of stability. Such
use of the law, however, merely relects a weakness or a communicative deiciency in the law, and it can never fully obscure the fact that these states do
not possess genuine constitutional legitimacy. Further to the party-political
left than Habermas, in the 1970s Ulrich K. Preuß also applied Schmittian
arguments about constitutional law categories at diferent critical junctures
in the history of the Federal Republic of Germany. his can be seen irst
in his critique of the use of subsidiary laws in the late 1960s and 1970s to
move constitutional reality away from the original social decisions of the
Basic Law.82 More recently, in the wake of 1989, Preuß also reconigured
Schmittian ideas in his radical-democratic account of the constitution as
the basis for post-reuniication political integration.83
In addition to its observations on the relation between law and the constitution, the second great antinomy underlying Constitutional heory is
apparent in Schmitt’s discussion of the terms identity and representation,
which he deines as the two fundamental principles of political form. his
also becomes a central problem in subsequent political discourse. Most
important, Schmitt argues that modern democratic states, in societies
with complexly structured populations and franchises, can never obtain
fully democratic legitimacy, for democracy in the strict sense means that
government is conducted on the basis of a self-identical will, formed and
shared by all constituents of the state, and legitimacy arises as the concrete
38
Introduction
expression of such an identical will. Modern political systems, he claims,
cannot be based in immediate identity, because in complex societies it is
impossible for all members of the people to be actively involved in making
decisions and to participate fully in the political process. In fact, it is precisely characteristic of modern mass democracies that the people are not
engaged in political decision making and that the constitutive role of political interaction in the public sphere, which characterized early democracies, has been forfeited.84 Political systems that attempt to overcome
this problematic lack of legitimating identity by proposing representation
as the basic principle of democracy do not, however, successfully generate legitimacy for themselves. Indeed, Schmitt sees the idea of representative democracy, in the common sense of democratic rule by parliamentary representation or by other modes of deputation, as little more than
a contradictory device, which was originally employed as a strategy for
limiting monarchical authority (219), but is unable to create conditions of
truly democratic legitimacy. Where democratic governments seek to be
representative—for instance, by putting up delegates, by organizing political parties as deputations of social interests, or by establishing chambers
of parliamentarians—they in fact cease to be democratic. Representative
governments actually serve only to particularize and atomize society into
plural spheres of interest, and thus undermine the united will of the people
and fragment the identity that properly founds democracy and democratic
legitimacy. In consequence, when governments attempt to be more democratic and representative—perhaps, for instance, by linking their representative claims to speciic issues or mandates, or by seeking to represent the
particular concerns of public opinion, of corporate groups, or of political
parties—they are always likely to erode their representative basis and to degenerate into a roughly pluralistic fusion of representative and democratic
elements. Governments seeking to be more democratic by means of pluralistic or material representation, in short, always become less democratic.
Democracy, Schmitt concludes, cannot be representative, because democracy presupposes identity, and representation (as it is usually understood)
is always in contradiction with the identity that democracy posits as its
foundation (218). Government, in consequence, can either be democratic
or it can be representative, but representative democracy—in the pluralistic
sense of this concept—is always a contradiction in terms.
In modern complex societies, Schmitt then asserts, the identical will of
the people is most efectively relected in the political process through public acclamation: that is, through the direct airmation given by a substantially homogeneous people, assembled in public,85 in response to precisely
and “authoritatively formulated” questions.86 Under such conditions, the
political will is not manufactured and distorted by the delegatory functions
Introduction
39
of parliaments or of political parties; it is communicated directly from the
public sphere to the executive, and the executive can refer immediately to
this will as the justiication for its exercise of power. In other words, Schmitt
indicates that modern democracy is most truly democratic when it abandons the idea that it can found itself in constant and invariable identity, and
when it simply re-presents the basis of identity that it requires in the symbolic form of leaders and powerful politicians, who either do or do not receive acclamation for their decisions.87 Analogously, he argues that modern
democracy is most democratic when it renounces the intention to represent all particular or pluralized interests in society or to integrate all people
into all aspects of policy making, and when it simply represents what it constructs—for itself—as the irreducible united will of all members of society.
his idea then provides Schmitt with a solution to the antinomy between
democracy and representation. Governments that found their legitimacy
in acclamation are, he claims, both democratic and representative. hey
are democratic because they are founded in substantial identity, and they
maintain their legitimacy by re-presenting this identity to the publicly assembled and uniied people, in which they have their legitimating origin
and justiication. Such representative systems, Schmitt concludes, are in
fact always likely to be more truly democratic than systems based in liberaldemocratic, parliamentary-democratic, or social-democratic modes of representation. his is because their processes of representation—via acclamation—consolidate the identity of the people as a symbolic resource, whereas
more common models of representative democracy, organized around political parties, parliaments and interest groups, only serve to fragment and
particularize the identical will of the people before it has even been fully
formed. he key to understanding the relation between identity and representation is thus to detach representation from individual material concerns and to construe representation as a process that itself instigates and
articulates identity throughout all society.
It is on these grounds that Schmitt outlines one of the greatest and most
controversial challenges to modern political theory: that is, his claim that
the conditions of legitimate democratic governance are in fact best maintained by systems that do not conform to standard conceptions of democracy. Most especially, he argues that in modern societies democracy must
necessarily be executive democracy. Democracy, he concludes, is best
secured by systems with strong executives, concentrated around symbolic
leaders and igureheads, and that systems with strong parliamentary legislatures tend to undermine their democratic content and organization. One
of the main reasons for this argument is that Schmitt sees the legislatures
of modern democracies as being excessively dependent on political parties
as organs of will formation and decision making. Political parties, Schmitt
40
Introduction
argues, only succeed in dividing up the identity of the people and so directly
impede the establishment of a united political—or “democratic”—will. Political parties are also to a large extent responsible for the fragmentation of
the constitution in modern societies. his is because they recruit support
from very diverse factions in society, and they sustain their institutional
power and inluence by forming compromises with other parties and interest groups; as a result, they tend to use law to appease or—however temporarily—to reconcile their own naturally antagonistic memberships, and
they introduce irreducibly pluralist, concessionary or technical principles
into the original terms of the constitution. Constitutional legitimacy, in
short, expresses unity in society, whereas party-political attempts to obtain
legitimacy can only express a corrosive pluralization of social interests.
Many major theorists and practitioners of politics after Schmitt have
responded directly to these arguments. Most obviously, as discussed, these
ideas were enthusiastically received by the non-Nazi conservatives of the
late-Weimar era, who took them as the theoretical basis for a new conception of democracy based in an extremely powerful executive, with limited independent legislative competence and with minimal powers of will
formation granted to elected political parties. However, after the end of
the National Socialist regime, these ideas began once again to ilter into
broader discussions, and especially into more critical relections on the role
of the political parties in the newly formed Federal Republic of Germany
under Adenauer. At this time, many political and constitutional theorists,
on both the left and the right, openly echoed Schmitt in suggesting that the
party system of the Federal Republic possessed only the most technically
devalued mechanisms for manifesting the popular will, and that it relied on
the manipulation of public opinion by corporate bodies, powerful lobbies,
and political parties. he newly founded democratic system, it was widely
concluded, was already beginning to exhibit features usually associated
with purely representative or even issue-based plebiscitary governance,
and the role of the parties was now restricted to the technical fabrication of
consensus. hese ideas found perhaps their most exemplary articulation in
the constitutional-theoretical writings of Gerhard Leibholz, but these were
widespread arguments in the 1950s and 1960s.88
Most important, however, the works of the early Habermas might also
be seen as a highly critical response to Schmitt’s claim that democratic
unity cannot be fully represented in modern democracies. he younger
Habermas shared Schmitt’s intense hostility to democratic systems revolving around corporate techniques of consensus-maintenance, and he too
viewed the tendency toward the corporate balancing of interests as a major
structural weakness in modern democracies. Likewise, he was prepared to
concede Schmitt’s point that parties serve merely to stabilize sections of
Introduction
41
the public will in interest blocs or pragmatically motivated groups, and that
these then destroy both the unity of popular will and the genuinely representative function of the public system. However, rather than seconding
Schmitt’s willingness to relinquish the ideal of popular democracy, Habermas took Schmitt’s critical theory of democracy as a productive irritant,
and he developed his own radical-democratic theory around a constructive
correction of Schmitt’s model of executive democracy. he central theoretical objective of the young Habermas was to explain that, even in the
most complex and materially divided democracies, the united and identical
will of the people can indeed be represented, and to show how the dissolution of this will by delegation procedures might be overcome. On these
grounds, Habermas rejected Schmitt’s claim that the people must necessarily be deined as those who are not involved in the political process, and
he sought to account for a possible reconiguration of mass democracy in
which meaningful participation in will formation would not be restricted
to privileged representatives. his, he claimed, could only be accomplished
through a thorough and far-reaching reconception of the role Schmitt ascribed to the public sphere. he public sphere, for Habermas, should not
be viewed as a space for the relatively passive manifestation of enthusiasm
or acclamation, but as a potential arena of communicative interaction and
radical-republican discourse, in which one can obtain agreements that
might ultimately form a basis of legitimacy for the political system. At the
heart of this reiguring of the public sphere is the claim that identity and
representation should not be viewed as antinomies that can only be reconciled via authoritarian techniques of symbolic governance, but rather
that a vibrant public sphere, neither regulated from above by steering techniques nor determined from below by material interests, might connect the
popular-democratic will with the representative institutions of the state.
Habermas concurred with Schmitt in the claim that the people is a concept that “becomes present only in the public sphere” (243). But his entire work is determined by the attempt to explain how the public sphere
might assume a far greater constitutive role in the production of legitimacy
than Schmitt might be willing to countenance. Indeed, Habermas implicitly
views Schmitt’s denial that the public sphere has a constitutive function as
the reason why he sees the relation between representation and identity in
such problematic terms.
A further theoretically resonant set of antinomies that have central importance in this work are the terms freedom and equality. In his discussion of these terms, Schmitt echoes earlier conservative and historicist
arguments. He indicates, irst, that the organization of a political system
around programmatic principles of equality (around, for example, prescribed material entitlements, or restrictions of status) must inevitably re42
Introduction
strict the degree of freedom that this political system guarantees. Second,
then, a political system which seeks constitutionally to enshrine individual
freedoms (as inviolable rights or formal-subjective attributes) necessarily
limits the extent of possible political equality, and it founds political order
in an underlying condition of atomized pluralism and distinction. As a
consequence of this, he argues that the liberal-democratic assumption that
freedom is a precondition of political equality and the Marxist or socialdemocratic assertion that political or material equality is constitutive of
freedom are both naïve and conceptually lawed. he relation between
freedom and equality, he concludes, is always one of contradiction and exclusion. he tension between equality and freedom can only be overcome,
he states, if freedom is not viewed as a condition of individual liberty, but
rather as one of identity with a uniied common will, and if equality is not
to be viewed as a condition of material or legal entitlement, but rather as a
state of national equality or homogeneity. In his relections on freedom and
equality, Schmitt thus repeats his conviction that in modern societies factual equality is impossible, and that the distinction between those who govern and those who are governed is a structural feature of political systems
now characterized as democracies. However, where those who govern and
those who are governed share similar national and ethnic characteristics
the factual diference between them need not be construed as a qualitative
diference. In fact, it is fundamental to genuine democracies that there is
no such qualitative diference (235–37), and the most stable democracies
are those that do not contain a diference of this type. All democracy must
therefore presuppose a substantial (not material, legal or moral) equality
between its members. Where equality is construed in such terms, in fact,
Schmitt concludes, the otherwise insoluble contradiction between equality
and freedom can be resolved. Where equality is reconceived as substantial
equality, it provides a horizon for the substantial freedom of the constituents of a democracy, for members of such a democracy know their freedom
as shaped and underpinned by deep-rooted common habits and identities:
equality and freedom thus become corollaries of one another. Democracy,
therefore, cannot presuppose formally enshrined equality; indeed, where it
does so it forfeits the component of freedom in democratic life. Likewise,
democracy cannot seek to guarantee particular or plural freedoms; where
it does so it endangers the necessary component of equality in democratic
life. But democracy, strictly deined as a freely uniied will, evolves precisely
from a substantive reiguring of what equality and freedom mean and how
they relate to each other.
In these respects, Schmitt once again provides a crucial stimulus for
subsequent political theory. His indication that equality and freedom can
only be taken as the substructure for democracy where freedom is not conIntroduction
43
strued individually and where equality is not conceived formally or materially drives the later inluential attempts of Neumann and Habermas to illuminate the conditions under which modern democracies might construe
equality and freedom—like identity and representation—as reciprocally
constitutive, not exclusive, terms. Neumann, for instance, responds critically to Schmitt’s substantialism by indicating that the genuine and active
exercise of political freedom must lead to agreement on the necessity of the
formal (and probably also material) equality of all citizens, and that only the
universal enjoyment of equality can create conditions for the exercise of authentic freedom.89 Analogously, Habermas’s work is motivated, even at its
deepest level, by the impulse to show that freedom and equality are not true
antinomies, but are in fact co-original elements of democratic existence,
such that the full exercise of individual freedom requires the recognition of
other people as equally entitled participants in democratic dialogue. For all
their animosity toward Schmitt, however, it is notable that Neumann and
Habermas—two of the most important representatives of the post-1945
democratic left in Europe—accept Schmitt’s denial that rights and freedoms can be conceptualized in purely pluralistic terms, and both claim that
rights and freedoms are only validated where they are politically articulated
or expressed as elements of a common democratic will. Both therefore follow in Schmitt’s steps in attempting to account for democratic legitimacy as
a condition that can only evolve through a substantial reconciliation of the
demand for social equality and the insistence on personal liberty.
he End of High-Modern Politics?
On one level, Constitutional heory clearly questions whether classical
ideas of democracy are sustainable in modern societies. Indeed, the central
claim in this work could not be more straightforward. It is, namely, that
classical conceptions of democracy, residing in the identity of those who
govern with those who are governed, cannot be transposed onto modern
political systems, and that liberal-parliamentary systems that seek to emulate the classical conditions of democratic legitimacy are forced to deploy
technical and ideological devices to obscure the fact that this is impossible.
As we have discussed, this perspective is of seminal importance for the evolution of modern reactionary political theory, but it also acts as a powerful
critical stimulus for political thinking on the democratic left.
On a rather more nuanced level, however, Schmitt’s work also declares
a profound attachment to classical deinitions of politics, and to classical
or state-centered models of the institutional fabric of the polity. One further fundamental implication of this work is that political legitimacy can
44
Introduction
only ever be expressed through the constitution of the state, and that the
possession—or loss—of constitutional legitimacy by the state, deined as a
representative institution situated above and against all nonpolitical associations, is the most pressing concern for all sectors of society. Deiciencies
in the legitimacy of the state, in short, undermine the cohesiveness of all
society, and all operations of law and politics must be viewed as deeply relevant for the preservation of legitimacy. In this respect, Schmitt is emphatic
that the state is the guarantor of stability, and that all attempts to undermine or divide the classical authority of the state threaten the well-being of
all society.
Here, once again, Schmitt’s thought is rather awkwardly and dialectically
positioned between the perspectives of the left and the right. By insisting
on the constitution of state as the sole focus of legitimacy, he asserts that
it is still possible (indeed necessary) to imagine a society held together in
its entirety by one political will and by one declared set of principles and
macropolitical orientations or directives. Indeed, for Schmitt, it is only
where the interactions and concerns belonging to politics can be made
transparent to a foundation of uniform volition that a society, as a whole, is
likely to obtain stability and durability. Schmitt’s assertion that the cohesive
will of all society must be represented in the state obviously identiies him,
most immediately, as a theorist of the strong executive, as an antipluralist,
and so, clearly, as an authoritarian statist. Yet his related intimation that
the resources of legitimacy in modern society are intensely fragile and conlictual, that all social and legal problems are, potentially at least, political
problems, which involve conlict over the monopoly of power, also places
him in a certain involuntary proximity to left-oriented theory.
Of the greatest import in this respect is the fact that Schmitt sets out
a very expansive conception of what can be properly construed as political. He argues that no single aspect of the governmental use of power or
law can be separated from politics (125), that all expressions of rights and
freedom that might delect from the unity of political volition in the state
are always relevant to questions of legitimacy, and that the application of
law can always be assessed as either reinforcing or undermining the integrity of the legitimate political will. his extended conception of politics
moves Schmitt toward an intensely politicized conception of society. To be
sure, we might accept Renato Cristi’s argument that at times Schmitt replicates aspects of early-liberal thinking in his sporadic attempt to restrict
the extent to which the private economy should be subject to politicization
through state regulation.90 Nonetheless, informing the broad trajectory of
Schmitt’s work is a very expansive notion of politics, which insists that all
social agency and all legal claims must be viewed under the stringent perspective of their relation to the will of the state, and which thus implies that
Introduction
45
the state cannot allow itself to perceive any area of social communication
as neutral or, at least potentially, without political signiicance. his argument, although deeply hostile to all elements of left-leaning pluralism, leads
him away from perspectives that have come to be associated with political
theory on the right, and it marks a last attempt to salvage a full conception
of political legitimacy, which construes legitimacy in the state as a site of
critical contestation, possessing the most profound relevance for all members of society.
As we have seen, Schmitt’s doctrine of the constitution was positively
appropriated by the radical conservatives during the dissolution of the
Weimar Republic, and it clearly provided a model for governments inclined
to restrict civil or public participation in the exercise of power. However,
his relation with contemporary thinkers and politicians on the right was
not always straightforward, and there are also elements of this doctrine that
sit uneasily with the more widespread conservative arguments that evolved
in the political climate of the 1930s and that, in any case, are clearly incompatible with the ideologies supporting the regime of the nsDaP after the
end of the Weimar Republic. First, Schmitt’s simple indication that government conducted by political parties tends to fragment the popular will
and weaken political legitimacy is suicient to place him outside the immediate theoretical orbit of the nsDaP. In fact, Schmitt’s argument that
the constitution is the primary manifestation of political will, and is as such
distinct from all technical-administrative functions, appears almost as an
anticipatory rejection of the nsDaP, which assigned to itself a coordinating
role between society and the state, and so expressly devalued the structural
dignity of the state. Second, Schmitt’s hierarchical claim that the representative powers of the state are the inal and exclusive source of legitimacy in
modern societies also marks him in many respects as an opponent of the
lines of reactionary thought that culminated in the ideology of the nsDaP.
His insistence that a state obtains legitimacy only insofar as it remains politically distinct from the plurality of interests in society can clearly not be
seen as conforming to a construction of political authority that sees all society as united in one political party, and this view is not easy to harmonize
with the party-based, technocratic and quasi-corporate ideas of the Nazis.
Indeed, the party-based apparatus of the nsDaP must necessarily have appeared to Schmitt as a terrible conirmation of his own darkest warnings in
the 1920s: namely, that the unbridled pluralism of modern liberalism must
ultimately threaten the overthrow of the institutions of modern liberalism
that foster and sanction it. On both these counts, therefore, his belief that
legitimacy is political and that politics is focused on the will of the state
meant that Schmitt’s work could not easily be reconciled to the orthodoxy
of the nsDaP.
46
Introduction
Viewed in a broader context, the intense state-centered political character of Schmitt’s vision of society and the centrality of the constitution in
this vision might also be seen as reasons why the lines of conservative discourse emerging after 1945 also, at times, found Schmitt rather problematic
and controversial. In the early years of the Federal Republic of Germany,
for example, the major conservative theorists, including Arnold Gehlen,
Helmut Schelsky, Hans Freyer, and Ernst Forsthof, generally favored highly
technocratic models of government that construed legitimacy in politics, at
most, as the result of adequate administrative competence. hese models
directly limited the steering role of the state in modern societies, and they
openly questioned the extent to which society could still be structured
around individual political decisions, around an integral political will—or
around any determinate foundation of human interest.91 In diverse ways,
these theorists were content enough to muse wistfully on the demise of
politics as a key development in modern social experience; they were happy
to assign political decisions to subsidiary administrative locations; and they
generally accepted that modern democracies are marked by a high degree
of political dispersal or polycracy. Most important, the major perspectives
of post-1945 conservatism tended to deprecate, or at least to problematize,
the belief that political legitimacy acts as a central structural or personal
focus of modern societies, and that the attenuation of legitimacy necessarily has chronic consequences for all society. For these reasons, the theories of the post-1945 conservatives ascribed only peripheral importance
to the constitution itself. As all were skeptical about the idea that society
might be centered on the resources of legitimacy in the state, all suggested
that societies operate quite efectively with only a minimum of substantial
legitimacy, and all were prepared to accept the constitution as a mere functional or technocratic document, lacking any fundamental representative
qualities. Unlike Schmitt, all these theorists expressly recognized corporate
groups (including parties) as playing a major role in the maintenance of
social stability and political legitimacy. Gehlen, perhaps the most inluential of these thinkers, openly endorsed a polyarchical system of governance
or regulation, and he denied that institutional forms could be made transparent to categorical or determinate decisions.92 Likewise, Ernst Forsthof,
the major conservative constitutionalist of post-1945 Germany, viewed the
constitution, albeit in partly Schmittian terms, as an essentially technical
arrangement of rules, designed for the adequate organization of the functions of the state, not for the consolidation of a uniform will.93
In general, therefore, political conservatives after 1945 tended to move
toward a deeply depoliticized view of modern society and its institutions.
Attempts to politicize society again, they indicated, fail to recognize the
decentered nature of modern social order and cling to rather Romantic
Introduction
47
notions of legitimacy as resulting from a substantial and omnipresent will.
In fact, most conservatives of this time pleaded for an unburdening of the
state, and for an abandonment of the classical state-centered belief that the
state should be seen as the inal addressee for all social problems or that
all social problems have relevance for politics. his willingness to impute
only secondary importance to the political system and to the constitution
was ultimately taken up by Niklas Luhmann.94 Indeed, Luhmann was only
prepared to see the state itself as a minimal organ of regulation and decision making; all claims that society is centered on the state or on resources
of legitimacy generated by the state, he argued, simply relect the fact that
society is unable to understand its own essential plurality and clings to
counterfactual and simplistically personalized accounts of its operations.95
hrough Luhmann’s inluence, this view has become a pervasive argument
in more recent sociological relections on legitimacy and on its functional
transformation in late-capitalist democracies.
In certain respects, Schmitt himself also moved close to minimally
democratic or even technocratic perspectives in the very last years of the
Weimar Republic, and he too might conceivably have felt a degree of sympathy for these theoretical positions after 1945. However, in Constitutional
heory Schmitt clearly insists that political institutions must be correlated
with a distinct and deeply politicized will, that the validity of these institutions depends on their relation to this will, and that the well-being of all
society relies on the extent to which it has a center in a decisively legitimate
order of the state. On these grounds, whatever his own political intentions
and ailiations, Schmitt’s insistence on the necessarily political nature of
legitimacy and his refusal to accept legitimacy as a technical, administrative, or marginal problem clearly places him out of line with the subsequent
contours of German and European conservatism. Although his notion of
the state clearly has its origins in earlier traditions of conservative thought,
his conviction that the maintenance of legitimacy must involve the representation, in politics, of substantial social agreements cannot be exclusively
aligned to the right, and, in fact, it stands against many key positions in
recent and current conservative debate.
he problem in positioning Schmitt’s thinking among other lines of reactionary thought, either of the movement parties of the 1920s and 1930s,
or of the less compact traditions of post-1945 Germany and Europe, is that
his politicized conception of society at times appears to speak from a historical epoch that has already passed, and whose passing was clearly recognized and relected by the nsDaP. Indeed, we might say that what characterizes the ideology of the National Socialists is that it constructed a radical
reactionary outlook that abandoned what had previously been the central
concept of radical reactionary thought: namely, the state. Instead of focus48
Introduction
ing its account of political order on the state, this ideology opted to found
its model of order on party-based, corporate, and even quasi-liberal principles of difuse power, and it rejected the notion that the representative—
or strictly political—legitimacy of the state was of crucial importance for
upholding social stability and cohesion. his denigration of politics and the
state is very clear in the pronouncements of the more orthodox theorists of
the nsDaP with whom Schmitt engaged in debate, most especially in those
of Otto Koellreutter, who resolutely rejected the state-centered tradition of
constitutional thought exempliied by Schmitt.96 Underlying the appeal of
National Socialists, then, was the fact that it fused its authoritarian stance
to an implicitly postpolitical acceptance that the state alone could not act as
an organ of political representation,97 and that the central apparatus of state
was merely an adjunct of more complex and socially dispersed mechanisms
for communicating and enforcing power. he refusal of the Nazis to view
state legitimacy as a central category of social administration in fact, arguably, marked a peculiar element of modernity in their outlook, and the technocratic political thinkers who deined German and European reactionary
theory after 1945 gave new expression to these ideas. Far from making a
theoretical break with the Nazi era, therefore, much conservative theory
after 1945 was fundamentally determined by the same tendency toward a
functionalist or technocratic depoliticization of political questions that had
marked the 1930s.
In this respect, therefore, the simultaneous approval and rejection of
Schmitt’s political ideas in reactionary thought has much to do with the
fact that his works appear as a last attempt to construct or preserve a highmodern model of the political system, in which politics is a decisive arena
that transmits guiding principles through all society. For this model, the
question of legitimacy is naturally the paramount issue for all society, as all
social communications are relevant to legitimacy and legal and political decisions gain validity only where they represent and communicate substantial resources of legitimacy. Since the high point of Schmitt’s greatest inluence in the late 1920s and early 1930s, both liberal and reactionary thinkers,
in distinct but parallel ways, have tended to move toward multifocal interpretations of society, and of the role of power and the state in society, and
both liberals and reactionaries have tended to avoid the emphatic assumption that all society can be centered around political resources and political contests.98 Indeed, in more recent debate both liberal and reactionary
thinking have been bound by their willingness to accept that the economy
is the bastion of social and cultural stability and that questions of wider
economic orientation are outside the realm of what can be meaningfully
integrated into political debate. It is mainly thinkers on the left who tend
to look suspiciously at processes of political decentration, pluralization,
Introduction
49
and difusion, who are skeptical about the granting of rights and freedoms
where these are decoupled from participation in political will formation,
who are prepared to see all social and economic problems as connected
with power and its application, and who are therefore unwilling theoretically to accept that power and politics are secondary phenomena in modern
societies. Moreover, it is usually thinkers on the left who impute a necessary unity to human nature and human interests, and a necessary centrality
to the institutions designed to preserve and protect these interests and this
nature. Such thinkers are thus often inclined to ind important theoretical
currency in Schmitt’s work.
Perhaps, in short, we can describe Schmitt as the last great theorist of
political high modernity, who rather desperately insists that the resources
of power in a society should have their focus in a deinite political location,
and that society loses cohesiveness where it is not founded in constitutionally legitimized principles that are communicated as power. If this description is accurate, this stance has as much to ofer to thinkers on the left as
to those on the right or the center; the right and the center, for whatever
ideological reasons, have become accustomed to imagining power as a diminishing resource and to viewing legitimacy as little more than a functional variable in the operations of the political system and other institutions. It is only the left that still utilizes modern or high-modern modes of
political analysis, that still quantiies processes of social transformation as
expressions of measurable power, and that still clings to the idea that all of
society might be implicated in and afected by the production of legitimacy.
Obviously, political thinking on the left is unlikely to feel any allegiance to
Schmitt’s aggressively nationalist construction of the foundation of legitimacy, but his reluctance to sacriice the problem of legitimacy to the indifference of late modernity ensures that his work remains fully and critically
contemporary, for all sides of the political spectrum.
50
Introduction
C onstit u tional the ory
Schmitt’s Preface
he profered work is neither a commentary nor a series of separate monographs. It is an attempt at a system. In Germany today, there are excellent
commentaries and monographs on the Weimar Constitution, whose high
value in theory and practice is recognized and requires no further praise.
But it is also necessary to make an efort to construct a systematic constitutional theory and to treat the ield of constitutional theory as a special
branch of the theory of public law.1
his important and independent part of written commentary on public
afairs in Germany has not been elaborated on during the last generation.
In public law, its issues and materials have been lumped in with very diferent public law matters, or they have been more or less divided up and discussed in an incidental way in the general theory of the state.2 his can be
accounted for historically by the position of public law of the constitutional
monarchy, perhaps also by the peculiarity of Bismarck’s Reich Constitution,
whose ingenious design combined elemental simplicity and complicated
incompleteness. But it probably most of all stems from the political and
social feeling of security of the prewar era.3 A particular view of “positivism” serves to drive fundamental questions of public law from the realm of
constitutional theory and into general state theory, where they occupy an
unclear middle position between state theory generally and philosophical,
historical, and sociological matters. It is necessary here to remind oneself
that constitutional theory in France also developed late. In 1835, a professorship for constitutional law was established (for Rossi) in Paris, which,
however, was once again eliminated in 1851 (after Napoleon the hird’s
coup d’état). he Republic established a new professorship in 1879, and yet
in 1885 Boutmy still complained (in his Etudes de Droit constitutionnel)
that the most important branch of public law in France was neglected and
that no recognized authority had emerged in this ield. Today, the characteristic property of this part of public law inds expression in famous
names such as Esmein, Duguit, [XII] and Hauriou. It is predictable that
the scholarly treatment of the Weimar Constitution also leads in Germany
to the formation of a constitutional theory, when foreign or domestic disturbances do not hinder the calm and collective work toward this end. he
public law events of recent years, especially the publications of the Association of German State Law Teachers, already exhibit this tendency. If the
judicial review of the constitutionality of statutes develops further,4 as is to
be expected from the current position of the Reichsgericht, that will also
lead to an engagement with the constitutional theory dimension of all legal
questions.5 Finally, permit me to mention that even the indings that I have
been able to make since 1919, in lectures, exercises, and exams, conirm this
view of constitutional theory as an independent area of public law meriting
its own treatment. In fact, already now a large portion of university lectures
on general state theory (politics) concern constitutional theory.
Because initially only a simple schematic should be outlined, it is not a
question of exhausting monographically the individual questions of public law and of reviewing the literature. Incidentally, good compilations
are found in the commentaries on the Weimar Constitution by Anschütz
and by Giese as well as in the outline of the public law of the Reich and
of individual Lands by Stier-Somlo, so that it is not necessary to repeat
an inventory of book titles. In a scholarly exposition, quotations and debate are certainly unavoidable. In this context, however, they are above all
thought of as examples and should clarify the position of speciic individual
questions in the system of constitutional theory. he issue here always is
presenting clear, transparent, and systematic outlines. hat must be emphasized, because a systematic consciousness seems to be lacking in Germany at present, and because already even in popular scholarly collections
(which could still retain their justiication only through the strictest systematic approach), the Weimar Constitution is considered “in the form of
a free commentary,” in other words, in the notes to the individual articles.
My intention is to ofer a systematic framework, which stands in contrast
to the method of commentating on and glossing the constitution, but also
in contrast to the breaking down of a uniied subject into individual investigations. In such an approach, neither all the questions of public law nor all
those of general state theory [XIII] will be answered. But in terms of both
public law and general state theory, that should mean a clariication of the
general principles as well as of some individual questions, if one succeeds
in developing a constitutional theory in the sense intended here.
Most important, the constitutional theory of the bourgeois Rechtsstaat
is presented.6 In that regard, one can ind no objection to the book, for today
this type of state is still generally the dominant form, and the Weimar Constitution conforms thoroughly to its type. So it seemed appropriate to refer
in the irst instance to the classic exemplars of French constitutions. Nonetheless, these French constitutions should in no way be elevated to an absolute dogma, whose historically conditioned quality and political relativity
must be ignored. On the contrary, it is among the tasks of constitutional
theory to demonstrate how much some traditional formulas and concepts
are entirely dependent on prior situations, so they are not at all old wine
in new bottles, but instead only an outmoded and false etiquette. Numerous dogmatic ideas of contemporary public law are still entirely rooted in
54
Schmitt’s Preface
the mid-nineteenth century, with its long-forgotten sense of serving social
“integration.” I would like to use this concept, which Rudolf Smend made
serviceable for public law, in order to refer to a simple factual situation. In
the nineteenth century, when prominent deinitions of statute and other
important concepts originated, the concern was the integration of a certain
social class, the educated and propertied bourgeoisie in particular, into a
speciic, then existing state, which was the monarchy that was more or less
absolute. In a completely changed situation today, these formulations lose
their substance. One will reply that even the concepts and distinctions of
my work are conditioned by the circumstances of the period. But then it
would already be an advantage if the concepts and distinctions were at least
set in the present and did not presuppose a long past situation.
A special diiculty for the constitutional theory of the bourgeois Rechtsstaat lies in the fact that even today the bourgeois Rechtsstaat component
of the constitution is still confused with the entire constitution, although
it cannot actually stand on its own. It serves, rather, only as a supplement
to the political component. hat one—falsely—casts the principles of the
bourgeois Rechtsstaat as equivalent to the constitution in general has led
to [XIV] the disregard of or failure to recognize essential processes of constitutional life. he treatment of the concept of sovereignty has sufered the
most under this method of ictions and of disregarding speciic circumstances. In practice, then, the habit of apocryphal acts of sovereignty develops. It is characteristic of this practice that state authorities and oices,
without being sovereign, nevertheless occasionally and under tacit acceptance implement acts of sovereignty. he most important instances are discussed at the appropriate point in the following exposition (pp. 108, 150,
177).7 A detailed elaboration of this question would belong in the theory
of sovereignty and, therefore, in general state theory. Also, the debate with
H. Heller’s theory of sovereignty (Die Souveränität, Berlin, 1927) concerns
questions of state theory and must be addressed in another context. Only
that which pertains to constitutional theory in its narrow sense is considered here. he theory of state forms in general, like the theory of democracy, monarchy, and aristocracy in particular, is for the same reason limited to that which is essential for constitutional theory (in contrast to state
theory). And, by the way, the limitations of scope set by the publisher have
already been exceeded.
While this work was in press, there appeared a series of writings and essays
that are of particular interest for the theme of constitutional theory, and the
great number of which demonstrate that the speciic constitutional theory
side of public law is emerging more emphatically. he proceedings of the
conference of the German Teachers of State Law in 1927 are quoted accordSchmitt’s Preface
55
ing to the report of A. Hensel in the Archiv des öfentlichen Rechts (v. XIII,
new series, 97f.), because the complete publication (Heft 4 of the Publications of the Association of German Public Law Scholars, W. de Gruyter)
irst appeared in December of 1927. Also while the book was in press, I became aware of the following publications, which at least deserve mention:
Adolf Merkl, Allgemeines Verwaltungsrecht (published by J. Springer); Walter Jellinek, Verwaltungsrecht (published by J. Springer); O. Koellreutter,
the essay “State” in the Handwörterbuch der Rechtswissenschaft, edited by
Stier-Somlo and A. Elster; the essays by G. Jèze, L’entrée au service public
(Revue du droit public, XLIV); Carré de Malberg, La constitutionalité des
lois et al Constitution de 1875; Berthélemy, Les lois constitutionelles devant
les juges (Revue politique et parlementaire CXXX II/III); and W. Scheuner,
“Über die verschiedenen Gestaltungen des parlamentarischen Regierungssystems” (Archiv des öfentlichen Rechts, XIII). A new edition of PoetzschHefter’s commentary on the Reich Constitution is announced for January
1928 (to be published by O. Liebmann). Unfortunately, it was not possible
to take up the new work of these excellent jurists. Additionally, a book by
Rudolf Smend on questions of constitutional theory has been announced. I
have attempted in my present work to engage thoroughly his previous publications and have, in the process, for the irst time experienced completely
the richness and the deep fruitfulness of his thought. herefore, I especially
regret that I cannot become more acquainted with and make use of the anticipated constitutional theory essay.
bonn, DeCember 1927
Carl Schmitt
56
Schmitt’s Preface
Part i
ConCePt of the Constitution
§ 1.
Absolute Concept of the Constitution
(he Constitution as Uniied Whole)
[3] he term “constitution” has various senses. In a general meaning of the
word, everything, each man and thing, every business and association, is
somehow included in a “constitution,” and everything conceivable can have
a “constitution.” A distinctive concept does not derive from this. A proper
understanding requires that the meaning of the term “constitution” be limited to the constitution of the state, that is to say, the political unity of the
people. In this limited meaning, “constitution” can describe the state itself,
and, indeed, an individual, concrete state as political unity or as a particular, concrete type and form of state existence. In this instance, it means the
complete condition of political unity and order. Yet “constitution” can also
mean a closed system of norms and, then, in the same way, can designate a
unity, however, not a concrete existing unity, but instead a relective, ideal
one. In both cases, the concept of the constitution is absolute because it expresses a (real or relective) whole. Moreover, a form of expression is dominant today, which calls any series of specially constituted statutes a constitution. In the process, constitution and constitutional law are treated as
identical. Every individual constitutional law can appear as a constitution,
so the concept becomes relative. It no longer concerns an entirety, an order
and a unity. It involves, rather, a few, several, or many individual statutory
provisions constituted in a particular way.
he usual textbook deinition is a constitution = fundamental norm or basic law.
What “fundamental” means here remains mostly unclear. It often means something
especially politically important or inviolable, just as one also speaks ambiguously
of “fundamental” rights, “anchorage,” and so forth. he constitutional theoretical
meaning of such turns of phrase result from the following conceptual investigation;
compare the overview of the various meanings of “lex fundamentalis,” “fundamental
norm” or “fundamental law” below § 5, p. 42. [4]
I. Constitution in the Absolute Sense can mean, to begin with, the concrete manner of existence that is a given with every political unity.
1. he irst meaning is constitution = the concrete, collective condition
of political unity and social order of a particular state. Political unity and
social order is part of every state. It is, in other words, some principle of
unity and order, some decision-making authority that is deinitive in critical cases of conlicts of interest and power. One can term this collective
condition of political unity and social order a constitution. he word, then,
designates not a system or a series of legal principles and norms, according
to which the formation of the state will and the exercise of state activity
regulates itself, and in the following of which the order is evident. Rather,
it actually only designates the concrete, individual state, such as German
Reich, France, or England, in its concrete political existence. he state does
not have a constitution, which forms itself and functions “according to”
a state will. he state is constitution, in other words, an actually present
condition, a status of unity and order. he state would cease to exist if this
constitution, more speciically, this unity and order, ceased to exist. he
constitution is its “soul,” its concrete life, and its individual existence.
he word “constitution” often has this sense in Greek philosophy. According to
Aristotle, the state (πολιτεία) is an order (τάξις) of the naturally occurring association of human beings of a city (πόλις) or area. he order involves governance in the
state and how it is organized. By the virtue of this order, there is a ruler (κύριος).
However, a component of this order is its living goal (τέλος), which is contained in
the actually existing property of the concrete political formation (Politics, bk. IV,
chap. I, 5). If this constitution is eliminated, the state is as well; if a new constitution
is founded, a new state arises. Isocrates (Areopag. 14) calls the constitution the soul
of the city (Φύχη πόλεως ή πολιτεία). It is perhaps best to clarify this idea of the constitution through a comparison. he song or musical piece of a choir remains the
same if the people singing or performing change or if the place where they perform
changes. he unity and order resides in the song and in the score, just as the unity
and order of the state resides in its constitution.
When George Jellinek (Allgemeine Staatslehre, p. 491) describes the constitution as “an order that forms itself according to the state will,” he confuses an actually existing order with a norm, which functions according to something lawlike
and proper. All the ideas coming into consideration here, such as unity, order, aim
(τέλος), life, soul, should denote something existing, not something merely normative, properly commanded.
2. he second meaning is constitution = a special type of political and
social order. In this instance, constitution means the concrete type [5] of
supremacy and subordination because there is in social reality no order
without supremacy and subordination. he constitution is a special form
of rule, which is part of every state and not detachable from its political
existence, for example, monarchy, aristocracy, or democracy, or however
one intends to divide up state forms. Constitution is the equivalent of state
form. In this regard, the word “form” also denotes something already existing, a status, not something of the nature of a legal principle, rule, or normative command. Even in this sense of the term, every state obviously has a
constitution, for the state always corresponds to one of the forms in which
states exist. Even in this regard, it would be more exact to say that the state
is a constitution. It is a monarchy, aristocracy, democracy, council republic,
and does not have merely a monarchical or other type of constitution. he
constitution is a “form of forms,” forma formarum.
In this sense, the word “status” (alongside other meanings of the ambiguous
term, for example, condition in general, rank, etc.) is especially used in the medieval
period and in the seventeenth century. Relying on Aristotle, homas Aquinas in his
60
Absolute Concept of the Constitution
Summa theologica (I, II, 19, 10c) distinguished among state forms: 1. aristocratic
state (status optimatum), in which a minority that is somehow distinguished and exceptional rules (in quo pauci virtuosi principantur); 2. oligarchy (status paucorum),
in other words, the rule of a minority without regard to an especially distinguished
quality; 3. democracy (the status popularis), in which the multitude of farmers,
craftsmen, and workers rule. In terms of state forms, Bodin (Les six livres de la
République, 1st edition 1577, especially in book VI) distinguishes the popular state
(état populaire), monarchical state (état royal), and aristocratic state. In Grotius (De
iure belli ac pacis 1625), status is, so far as the expression is of interest in this regard,
the “forma civitatis,” and, as such, also a constitution. In a similar way, Hobbes (for
example, De cive 1642, chap. 10) speaks of status monarchicus, status democraticus,
status mixtus etc.
A successful revolution directly establishes a new status and eo ipso a
new constitution. hus, in Germany after the transformation of November 1918, the Council of People’s Deputies could speak of the “constitution
established through the revolution” in its announcement of 9 December
1918 (W. Jellinek, “Revolution and Reichsverfassung,” Jahrbuch des öfentlichen Rechts IX, 1920, p. 22).
3. he third meaning is constitution = the principle of the dynamic emergence of political unity, of the process of constantly renewed formation and
emergence of this unity from a fundamental or ultimately efective power
and energy. he state is understood not as something existing, resting statically, but as something emerging, as something always arising anew. [6]
Political unity must form itself daily out of various opposing interests, opinions, and aspirations. According to the expression of Rudolf Smend, it must
“integrate” itself.
his concept of constitution stands in opposition to previous ones, which speak
of a status (in the sense of a static unity). Nevertheless, Aristotle’s idea is there is
also the dynamic element. he sharp separation of static and dynamic has something artiicial and violent about it. In any case, this “dynamic” concept of constitution remains in the sphere of (emerging) being and of the existing. he constitution,
therefore, does not yet become (as is the case with the constitutional concept to
be handled below in section II a mere rule or norm, under which one subsumes
something. he constitution is the active principle of a dynamic process of efective
energies, an element of the becoming, though not actually a regulated procedure of
“command” prescriptions and attributions.
Lorenz von Stein considered this constitutional concept in a large, systematic
framework. He speaks, however, only of the French constitutions since 1789. Yet at
the same time, he touches on a general dualistic principle of constitutional theory,
which is recognized especially clearly in homas Aquinas (Summa heologica, I, II,
105, art. 1), while two things are emphasized (duo sunt attendenda): irst, the participation of all citizens in the formation of the state will (ut omnes aliquam partem
habeant in principatu), and, second, the type of government and rule (species regriminis vel ordinationis principatum). It is the old opposition between freedom and
order, which is related to the opposition of the principles of political form (identity
and representation) developed below (§ 16, II). For Stein, the irst constitutions of
Absolute Concept of the Constitution
61
the revolution of 1789 (speciically, the constitutions of 1791, 1793, 1795) are state
constitutions in the actual sense in contrast to the state orders), which begin with
Napoleon (1799). he distinction is that the state constitution is that type of order
which produces the agreement of the individual will with the collective state will
and incorporates individuals into the living body of the state organism. All constitutional institutions and processes have the sense that the state “recognizes itself as
the personal unity of the will of all free personalities that is determined through selfmastery.” By contrast, the state order considers the individual and the authorities
already as parts of the state and demands obedience from them. In the state constitution, state life rises from below to above; in the state order, it proceeds from above
to below. he state constitution is the free formation of the state will; the state order
is the organic execution of the will so formed (Geschichte der sozialen Bewegung
in Frankreich, vol. I, Der Begrif der Gesellschaft, G. Salomon ed., Munich 1921, pp.
408/9; additionally, Verwaltungslehre, I., p. 25). he thought that the constitution is
the efective fundamental principle of political unity found clear expression in the
famous lecture of F. Lassalle, Über Verfassungswesen, 1862: “If, therefore, the constitution forms the basic law of a Land, then it would be an efective power.” Lassalle
locates this efective power and the essence of the constitution in actual power relations.
Lorenz von Stein is the foundation for the nineteenth-century German thinking
on constitutional theory (and, simultaneously, the conduit through which Hegel’s
philosophy of the state remains vital). Stein’s thought is recognizable everywhere,
in Robert Mohl, in the Rechtsstaat theory of Rudolf Gneist, in Albert Haenel. hat
stopped as soon as thought on constitutional theory ended. his means, speciically,
it ceased with the ascendancy of Laband’s method, which limits itself to exercising the art of literal interpretation of the text of constitutional provisions. hat was
called “positivism.”[7]
Rudolf Smend irst set the problem of constitutional theory again in its full scope
in his essay “Die politische Gewalt im Verfassungsstaat und das Problem der Staatsform” (Festgabe für W. Kahl, Tübingen 1923). In the following, I will often revisit
the ideas of this essay. hus, the theory of “integration” of state unity, as it has until
now—unfortunately only in the form of a sketch—been presented, seems to me to
be a continuation of the theories of Lorenz von Stein.
II. A constitution in the absolute sense can mean a fundamental legal
regulation. In other words, it can signify a uniied, closed system of higher
and ultimate norms (constitution equals norm of norms).
1. In this regard, constitution is not an actual existing condition, also
not a dynamic becoming. It is, rather, something normative, a mere “command.” Yet it is not a matter of individual laws or norms, perhaps even if
they are very important or distinguished by external features. It involves
the entire normative framework of state life in general, the basic law in the
sense of a closed unity, and of the “law of laws.” All other laws and norms
must be traced back to this one norm. In one such meaning of the word,
the state becomes a legal order that rests on the constitution as basic norm,
in other words, on a unity of legal norms. In this instance, the word “constitution” denotes a unity and totality. Consequently, it is also possible to
62
Absolute Concept of the Constitution
identify state and constitution, not, however, as in the previous meaning of
the term, in the manner of state = constitution, but the other way around.
he constitution is the state, because the state is treated as something genuinely imperative that corresponds to norms, and one sees in the state only a
system of norms, a “legal” order, which does not actually exist, though it is
valid in normative terms. he legal order, nonetheless, establishes an absolute concept of the constitution because a closed, systematic unity of norms
is implemented and rendered equivalent to the state. herefore, it is also
possible to designate the constitution as “sovereign” in this sense, although
that is in itself an unclear form of expression. For only something existing
in concrete terms can properly be sovereign. A merely valid norm cannot
be sovereign.
he turn of phrase that norms and laws, not men, rule and, in this sense, should
be “sovereign” is very old. For modern constitutional theory, the following historical
development comes into consideration. In the time of the monarchical restoration
in France and under the July Monarchy (therefore, from 1815 to 1848), the representatives of bourgeois liberalism in particular, the so-called “doctrinaires,” designated
the constitution (the Charte) as “sovereign.” his remarkable [8] personiication of
a written law had the sense of elevating the statute, with its guarantees of bourgeois
freedom and of private property,1 over every political power. In this way, the actual
political question whether the prince or the people are sovereign was evaded. he
answer is simple. Neither the prince nor the people but rather “the constitution”
is sovereign (cf. below § 6 II 7, p. 54). hat is the typical answer of liberals under
the bourgeois Rechtsstaat, for which the monarchy as well as democracy are restricted in the interest of bourgeois freedom and of private property (about this see
below §16, p. 216). hus a typical “doctrinaire” of the restoration and Louis-Philippe
period, Royer-Collard, speaks of the sovereignty of the constitution (conirmation
in J. Barthélemy, Introduction du régime parlementaire en France, 1904, p. 20f.).
Guizot, a classic representative of liberal commitment to the Rechtsstaat, speaks
of the “sovereignty of reason,” of justice, and of other abstractions, in the proper
knowledge that a norm can be called “sovereign” only to the extent that it is not
positive will and command but is the rationally correct will, relects reason, and
constitutes justice, and therefore has particular qualities; for otherwise only those
who exercise will and command are sovereign. With regard to the French constitution of 1830, Tocqueville consistently advocated the inalterability of the constitution
and emphasized that the collective powers of the people, of the king as well as of
parliament, are derived from the constitution, and that outside of the constitution,
all these political powers are nothing (“hors de la Constitution ils ne sont rien,” n. 12
to vol. 1, chap. 6 of Démocratie en Amérique).
Hans Kelsen’s state theory, reiterated in numerous books (Hauptprobleme der
Staatsrechtslehre, entwickelt aus der Lehre vom Rechtssatz, 2d ed., 1923; Das Problem der Souveränität und die heorie des Völkerrechts, 1920; Der soziologische und
der juristische Staatsbegrif, 1922; Allgemeine Staatslehre, 1925), also portrays the
state as a system and a unity of legal norms, however without the slightest efort to
explain the substantive and logical principle of this “unity” and of this “system.” Kelsen’s state theory also does not fully consider how this unity occurs and according
to what necessity it follows that the many positive legal provisions of a state and the
Absolute Concept of the Constitution
63
various constitutional law norms form one such “system” or a “unity.” he political
being or becoming of the state unity and order is transformed into that which merely
functions, the opposition of being and the normative is constantly mixed up with
that of substantial being and legal functioning. However, the theory becomes understandable when one sees it as the inal product of the previously discussed genuine
theory of the bourgeois Rechtsstaat, which sought to make a legal order out of the
state and perceives in it the essence of the Rechtsstaat. In its great epoch during
the seventeenth and eighteenth centuries, the bourgeoisie mustered the strength
to establish an efective system, in particular the individualistic law of reason and
of nature, and formed norms valid in themselves out of concepts such as private
property and personal freedom, [9] which should be valid prior to and above every
political being, because they are correct and reasonable and can contain a genuine
command without regard to the actually existing, that is, positive-legal reality. hat
was a logically consistent normative order. One was able to speak of system, order,
and unity. With Kelsen, by contrast, only positive norms are valid, in other words,
those which are actually valid. Norms are not valid because they should properly be
valid. hey are valid, rather, without regard to qualities like reasonableness, justice,
etc., only, therefore, because they are positive norms. he imperative abruptly ends
here, and the normative element breaks down. In its place appears the tautology of
a raw factualness: something is valid when it is valid and because it is valid. hat
is “positivism.” Whoever seriously insists that “the” constitution as “basic norm”
is valid and that everything else that is valid should derive from it may not take
any given, concrete provision as the foundation of a pure system of unadulterated
norms, merely because it is set by a particular oice, recognized, and designated
as “positive.” A normative unity or order is only derivable from systematic, correct
principles, which are normatively consistent and, therefore, valid in themselves by
virtue of reason and justice without regard for their “positive” validity.
2. he fact is a constitution is valid because it derives from a constitutionmaking capacity (power or authority)2 and is established by the will of this
constitution-making power. In contrast to mere norms, the word “will” denotes an actually existing power as the origin of a command. he will is
existentially present; its power or authority lies in its being. A norm can be
valid because it is correct. he logical conclusion, reached systematically,
is natural law, not the positive constitution. he alternative is that a norm
is valid because it is positively established, in other words, by virtue of an
existing will. A norm never establishes itself (that is a fantastic manner of
speaking). A norm is recognized as correct because it is derivable from
principles whose character is also recognized as correct and not only as
possessing a positive quality, which is understood to mean an actual establishment of a norm. Whoever says that the constitution is valid as basic
norm (not as positive will) maintains, consequently, that the constitution
is capable of bearing a closed system of correct principles by virtue of particular logical, moral, or other substantive qualities. It is a contradictory
confusion to say that a constitution is valid not because of its normative
correctness, but only because of its positive character, and that neverthe64
Absolute Concept of the Constitution
less the constitution as pure norm establishes a system or an order of pure
norms. [10]
here is no closed constitutional system of pure norms, and it is arbitrary to treat a series of individual provisions, which one understands as
constitutional laws, as a systematic unity and order, when the unity does
not arise out of a preestablished, uniied will. It is just as arbitrary to speak
of legal order without further clariication. he concept of legal order contains two entirely diferent elements: the normative element of justice and
the actually existing element of concrete order. he unity and order lies in
the political existence of the state, not in statutes, rules, and just any instrument containing norms. he ideas and terms that speak of the constitution
as “basic law” or a “basic norm” are for the most part unclear and imprecise. hey attribute a systematic, normative, and logical unity to a series of
highly diverse sets of norms, for example, the 181 articles of the Weimar
Constitution. In view of the intellectual and substantive diference between
the individual provisions, which are contained in most of the constitutional
laws, that is nothing more than a crude iction. he unity of the German
Reich does not rest on these 181 articles and their validity, but rather on the
political existence of the German people. he will of the German people,
therefore something existential, establishes the unity in political and public
law terms beyond all systematic contradictions, disconnectedness, and lack
of clarity of the individual constitutional laws. he Weimar Constitution is
valid because the German people “gave itself this constitution.”
3. he images of the constitution as a normative unity and something
absolute are explicable historically from the time in which one considered
the constitution a complete codiication. his rationalistic belief in the wisdom of the lawmaker dominated France during 1789, and one entrusted
oneself with formulating a conscious and complete plan for the entire political and social life. Indeed, some even had doubts about moving the possibility of a change and revision into consideration. But there is no longer
the belief in the possibility of a complete system of provisions that encompasses the state in its totality and is conclusively correct. Today, the contrary
awareness is propagated: that the text of every constitution is dependent on
the political and social situation of its time of origin. he reasons that certain legal determinations [11] are written into a “constitution” and not into
a simple statute depend on political considerations and on the contingencies of party coalitions. But the purely normative concept of the constitution, as the liberal idea of an absolute Rechtsstaat presupposed, is eroding
along with the belief in codiication and systematic unity. his belief was
only possible so long as the metaphysical assumptions of the bourgeois belief in natural law persisted. he constitution transformed itself now into a
Absolute Concept of the Constitution
65
series of individual positive constitutional laws. When today one nevertheless still speaks of fundamental norm, basic law, etc.—it is superluous to
cite examples and evidence for this—one does so because of the afterefect
of traditional formulas, which have long since become empty. It is just as
imprecise and confusing to always speak of “the” constitution. One actually
means an unsystematic majority or multitude of constitutional law provisions. he concept of the constitution is relativized as the concept of the
individual constitutional law.
66
Absolute Concept of the Constitution
§ 2.
Relative Concept of the Constitution
(he Constitution as a Multitude of Individual Laws)
Rendering relative the concept of constitution means that instead of a uniied constitution in its entirety, there is only the individual constitutional
law. he concept of constitutional law, however, is deined according to socalled formal characteristics that are external and peripheral.
I. Constitution in a relative sense, therefore, means the individual constitutional law. Every substantive and factual distinction is lost due to the
dissolution of the uniied constitution into a multitude of individual, formally equivalent constitutional laws. Whether the constitutional law regulates the organization of the state will or has any other content is a matter
of indiference for this “formal” concept. It is no longer generally asked why
a constitutional provision must be “fundamental.” Moreover, this relative,
so-called formal perspective, makes everything indistinguishable, renders
equal whatever is in a “constitution.” In other words, it makes everything
equally relative. [12]
here are countless such provisions in the Weimar Constitution. From these provisions it is immediately evident that they are not fundamental in the sense of a “law
of laws.” Take, for example, Art. 123, 2, which provides that “open-air gatherings can
be required to give prior notiication by Reich statute and can be prohibited if there
is a direct danger to public safety.” Art. 129, 3, 3 stipulates that “the secrecy of his
personal documents is guaranteed the civil servant.” “Teachers in public schools,”
according to Art. 143, “have the rights and duties of civil servants.” Art. 144, p. 2
provides that “supervision of schools will be exercised by expertly trained civil servants, who are acting in an oicial capacity.” According to Art. 149, 3, “he theological faculties in universities are to be preserved.” All these are statutory regulations,
which became constitutional laws when incorporated into “the Constitution.” he
historical and political situation of the year 1919 explains their incorporation into
“the Constitution.” he parties, on whose mutual cooperation the majority of the
Weimar National Assembly relied, placed value on giving just these provisions the
character of constitutional law norms. A factual reason is not discernible for distinguishing, with legal-logical necessity, these individual provisions from other provisions, which are also very important. One could have just as well written into the
constitution that civil law marriage and the indissolubility of marriage are guaranteed, that freedom of bequest exists, that those entitled to hunt must pay in full for
damage to wilderness areas, or that rents may not be raised in the next ten years.
Such constitutional details are all equally “fundamental” for an approach
to law that is indiscriminately formalistic and relativistic. he clause of
Art. 1, 1 of the Weimar Constitution reading “he German Reich is a republic,” and that of Art. 129 stating that “civil servants are secure in their
personal efects,” are both “basic norms,” “law of laws,” etc. However, it is
self-evident that in such instances of formalization, these individual provisions in no way retain a fundamental character. On the contrary, the genuinely fundamental provisions are relegated to the level of constitutional law
detail.
Now, the “formal” characteristics of the constitutional concept are at
issue. Nevertheless, it is necessary to remind oneself that the confusion of
manner of expression with concept formation, which is typical today, is very
great. First, the constitution (as unity) and constitutional law (as detail) are
tacitly rendered equivalent and confused with one another. Second, “constitution in the formal sense” and “constitutional law in the formal sense”
are not distinguished. And, inally, for the determination of the “formal”
character, two features are ofered, which are drawn from entirely disparate
perspectives. In one instance, only a written constitution is designated as
a “constitution in the formal sense,” and, in another, the formal element of
constitutional law and the constitution that is implicitly rendered equivalent should consist in the linkage of its alteration with qualiied prerequisites and procedures. [13]
II. he Written Constitution. Of course, the “formal component” of the
written constitution cannot reside in the fact that someone sets some provisions or agreements down on paper, promulgates them or has them promulgated, hence meaning there is a written document. he character of
the formal component is due to the fact that certain properties, whether
of the person or oice promulgating it or of its content, justify speaking of
a constitution in a formal sense. Considered historically, the content and
meaning of the written constitution can be very multifaceted and diverse.
In the nineteenth century, for example, up until the year 1848, the German bourgeoisie demanded a written constitution in its struggle with absolute monarchy. he
concept of an ideal constitution became an ideal concept, in which the most diverse
demands of the bourgeois Rechtsstaat were deposited. It is obvious that these demands of the liberal bourgeoisie for a written constitution were not fulilled, merely
because the king issued some order with any content whatsoever and prepared a
proclamation for it. As a written constitution in the sense of this political demand,
only that which corresponded substantively to these demands was valid. Cf. in this
regard § 4, p. 39 below.
he reasons to designate a written constitution a constitution in the
formal sense are also very diverse and derive from opposing perspectives,
which must be distinguished from one another here. To begin with, it is the
general idea that something that is ixed in writing can be demonstrated
more efectively, that its content is stable and insulated against change.
However, both perspectives, demonstrability and greater stability, do not
suice to enable one to speak of something as formal in a precise sense.
More accurately, the act of putting something in written form must stem
from an authoritative oice. A process recognized as authoritative is pre68
Relative Concept of the Constitution
supposed before that which is put in writing can be validated as authentically written. he acts of writing down something and promulgating it only
supplement a particular procedure and are not its deinitive elements. he
written constitution must come about in a special procedure, more speciically, one that is in accord with the demands of the nineteenth-century
German bourgeoisie, or that which is agreed upon (cf. below § 6, p. 54). “If
I pose this question (about the nature of the constitution) to a jurist, he will
give me an answer like the following: A constitution is a pact, airmed by
oath, between king and people that establishes the fundamental principles
of lawmaking and government in a country” (Lassalle, 1862). he constitution, therefore, would be a written contract. [14] Once the constitution is
established, however, it is alterable via legislation and appears as a written
law. In both cases, of course, it is only a matter of the popular assembly
(the parliament) lending its consent. he concept “contract” and “statute”
only have the political sense of guaranteeing the participation of the popular assembly. Like other formalities, such as the solemn act of oath taking,
promulgation supplements popular consent. By themselves, such formal
characteristics can never suice.
he end result, however, is that the demand for a “written constitution” leads to the constitution being treated like a statute. Even if it comes
about by way of an agreement between prince and the popular assembly,
it should only be changed via legislation. Constitution becomes equivalent
to a statute, even if a special type of statute, and as lex scripta it stands in
opposition to customary law. Nonetheless, the principle, constitution = lex
scripta, still need not mean the dissolution of the uniied constitution into
a series of individual constitutional laws. Historically, the practice of the
modern written constitution begins as an opposition to English constitutional practice, which is principally based on custom and usage. he English
colonies in North America, which declared themselves independent states
on 4 June [sic] 1776, gave themselves written constitutions, which would be
drafted and promulgated by the “constitution-making” assemblies as statutes (below § 4, II, 3, p. 40). hese constitutions, however, were considered
codiications, not individual constitutional laws. When the concept of the
written constitution leads to the handling of the constitution as a statute,
initially it is only in the sense of an absolute concept of the constitution,
more speciically, as a unity and as an entirety. he English constitution,
which rests on diverse acts, on agreements, contracts, individual statutes,
customs, and precedents, is valid not as a constitution in the formal sense,
because it is not complete. In other words, it is not written and issued as a
closed codiication in the form of a statute. here have been numerous individual constitutional laws issued in the form of statutes. To name only one
Relative Concept of the Constitution
69
example, there is the famous Act of Parliament of 1911, which limited the
legislative consent of the upper house (below p. 295). his means England
has constitutional laws in the sense of written individual constitutional
laws. If [15] one nevertheless says that England has no constitution in the
formal sense, one understands a constitution to be a closed codiication,
which regulates comprehensively the procedure of state will formation. he
idea of a written constitution must consistently adhere to the broader idea
of a closed constitutional codiication and to an absolute concept of the
constitution.
As noted, the belief in such codiications is absent today. he constitutions of diferent states appear as a series of diversely constituted sets of
norms: organizational provisions regarding the most important state authorities, those regarding the legislative process and the government, programs and guidelines of a general type, guarantees of certain rights, and
numerous individual provisions. hese individual provisions are only written into the constitution because one intends to exempt them from shifting parliamentary majorities and because the parties, which determine the
content of the “constitution,” use the opportunity to confer the character of
constitutional laws on their partisan demands. Even if such a series of constitutional laws is passed by a constitution-making assembly convened for
this purpose, the unity of its provisions lies not in their substantive, systematic, and normative completeness. It lies, rather, in a political will external
to these norms, which irst makes all these norms into constitutional laws.
And as the uniied foundation of these norms, this political will itself generates its own unity. Among all countries with written constitutions today,
only a majority of them actually have written constitutional laws.
So it is generally accepted that France has a written constitution, a constitution
in the formal sense, and one speaks of “the” constitution of the year 1875 because
in this and the following years several of the most important constitutional laws
were issued. he constitutional laws of the year 1875, however, as Barthélemy-Duez,
p. 39f., rightly states, lacked any method, any dogmatic completeness, even the will
to be complete and exhaustive. “Il n’y a pas de constitution; il y a des lois constitutionelles.” Otherwise, everything rests on custom and tradition, and the state life of
the French Republic would be entirely unrecognizable in the text of these constitutional laws. It would also be impossible to see in them the exhaustive establishment
of norms for French public law, even in some only approximate sense.
Compared to these French constitutional laws, the Weimar Constitution is more
systematic and complete in terms of its organizational part. But it also contains a
series of individual laws and heterogeneous principles, so that even here one may
not [16] speak of a codiication in the substantive sense. he complete unity of a
constitutional codiication dissolves itself into a set containing numerous individual
constitutional provisions.
Today, the so-called formal conceptual deinition, constitution in the
formal sense is a written constitution, means nothing more than the state70
Relative Concept of the Constitution
ment that a constitution is a series of written constitutional laws. he concept of the constitution is lost in the concept of individual constitutional
law. Nothing distinctive is gained for the deinition of the concept of the
constitution. his so-called formal concept only makes the concept of the
constitution relative, in other words, rendering the constitution in the sense
of a closed unity into an assortment of outwardly distinct statutory provisions, which one then designates “constitutional laws.” he additional
question regarding the other formal characteristic of constitutional law, its
qualiied alterability, is thus raised.
III. Qualiied Alterability as a Formal Characteristic of the Constitutional
Law. he formal, deining marker of the constitution and (indiscriminately)
of the constitutional law is found in the fact that constitutional changes
are subjected to a special procedure with qualiied conditions. hrough the
qualiied amendment conditions, the duration and stability of constitutional
law should be protected and the “legal status of the law” elevated.
Constitutional laws, according to Haenel (who otherwise falls victim to the typical confusion of constitution and constitutional law), are “exceptionally prominent
laws, which are accorded a distinctive meaning under the given political circumstances, and which receive special guarantees of durability and inviolability through
the fact that their amendments are bound to qualiied forms and that their preservation is secured through special standards of accountability” (Staatsrecht I, p. 125).
his conceptual deinition of Haenel’s is still remarkably substantive. G. Jellinek deines it simply. “he essential legal marker of constitutional laws,” he argues, “lies
exclusively in their heightened legality . . . consequently, the former states, which
know no formal distinctions internal to their laws, are more consistent when they
reject the summation of a series of legal provisions under the name of a constitutional promulgation” (Allgemeine Staatslehre, p. 520; Gesetz und Verordnung,
p. 262). See also Laband, Staatsrecht II, p. 38f.; Egon Zweig, Die Lehre vom pouvoir
constituant, 1909, p. 5/6; and W. Hildesheimer, “Über die Revision moderner Staatsverfassungen” (Abhandlungen aus dem Staats-, Verwaltungs- und Völkerrecht, XV 1,
Tübingen 1918), p. 5f.
1. here are states where all legal provisions regardless of their content
can be changed by a simple statute. Absent is any special protection against
changes, and there is also no longer any diference between constitutional
laws and simple statutes [17], so that one may not speak “formally” at all
of constitutional laws. One speaks here of elastic ( lexible) constitutions, a
linguistic usage in which the question remains open what is generally still
understood by “constitution” and “constitutional law.”
England is the primary example of a country without a “constitution in the
formal sense,” because no distinction is made there between important organizational provisions, for example, those concerning the relationship of the upper and
lower houses of Parliament and some other statute that is in comparative terms
entirely unimportant, such as, for example, a statute regarding the practice of the
dental profession. All statutes without exception can be established through parliamentary decision, so that formally the constitution would not be diferent from
Relative Concept of the Constitution
71
such a regulation regarding dentists. he inadequacy of such a type of “formalism”
already reveals itself in the absurdity of this example.
In contrast to these “elastic constitutions,” there are others that are unyielding (rigid). An absolute, unbendable constitution must prohibit every
change in any of its provisions. In this absolute sense, there may not be any
more such constitutions today. Nevertheless, for individual constitutional
provisions, one inds formal constitutional prohibitions against amendment. hus, a French statute of 14 August 1884 prohibits proposals for constitutional amendments concerning the state form of the Republic. hat is
a special case, the actual meaning of which will be treated below. For the
formal approach considered here, this statute otherwise does not yet make
the French constitution an absolute, unyielding one.
However, there are also such constitutions described as unyielding or
rigid that in terms of constitutional law provide for the possibility of constitutional changes or revisions, but this change or revision is linked to special, qualiied prerequisites or procedures.
Art. 76, for example, provides that “the constitution can be amended via legislation. However, a decision of the Reichstag regarding the amendment of the constitution occurs when two-thirds of those present consent. Decisions of the Reichsrat
regarding amendment of the constitution also require a two-thirds majority of the
votes cast.” “Changes of the constitution,” according to Art. 78a of Bismarck’s Reich
Constitution, “are brought about by way of legislation. hey are rejected when they
receive 14 votes against them in the Reichsrat.” Art. 8 of the French constitutional
law of 25 February 1875 provides that constitutional amendments occur through
the decision of a “national assembly,” in other words, a decision reached in a joint
assembly of both chambers, the House of Deputies and the Senate. See, additionally,
Art. 118f. of the Swiss Federal Constitution of 29 May 1874 (distinguishing between
total and partial revision). On Art. V of the American federal constitution of 1787
etc., compare below § 11, p. 106.
When there are no constitutional provisions regarding constitutional
amendments (for example, in the French constitutions [18] [Charten] of
1814 and 1830), it can be doubtful whether a lexible or an absolute, unyielding constitution is at issue. he issue, in other words, is whether constitutional changes come about via a simple statute or whether the silence of the
constitution means that amendments are prohibited in general.
In this instance, the correct answer is that only the constitution as a whole can
be eliminated through an act of the constitution-making power, while constitutional
law changes are certainly prohibited. Hildesheimer is incorrect on this issue. See
his Über die Revision moderner Staatsverfassungen (Abhandlungen aus dem Staats-,
Verwaltungs- und Völkerrecht, XV 1, Tübingen 1918), p. 8, whose reasoning unfortunately cannot avoid becoming unclear because of the confusion of constitution and
constitutional law.
2. In the requirement of qualiied alterability lies a certain guarantee of
duration and stability. Nevertheless, security and stability self-evidently
erode when a party or party coalition has the necessary majorities at its
72
Relative Concept of the Constitution
disposal and somehow is in the position to satisfy the qualiied prerequisites. Despite the great party fragmentation in Germany since 1919, there
have been numerous statutes that correspond to the requirements of Art.
76 and, consequently, are designated as “constitution amending.” he original sense of the guarantee of a constitution was lost when the constitution
as a whole became relativized as a group of individual constitutional laws.
According to its content and scope, the constitution is always something
higher and more comprehensive than some individual statute. he content
of the constitution was something special and distinctive not because of
its qualiied alterability. On the contrary, because of its fundamental signiicance, it should contain the guarantee of duration. his consideration
lost importance when it no longer involved “the constitution” but instead
concerned one or more individual constitutional laws. An entirely simple
perspective in the form of partisan tactics became prominent. he qualiied
alterability lost its connection to the essential character of the constitution. Rather, the provision in question was made into a constitutional law
in order to provide it protection from the legislature, that is, from shifting
parliamentary majorities for some practical reasons (which have nothing
to do with a basic norm). When in France during August 1926 a decision
of the National Assembly forms a so-called “Caisse autonome” in order to
constitutionally guarantee the use of certain income for the retirement of
the public debt and to get around the budget law decisions of a transitory
parliamentary majority, that is probably something [19] very important in
practical terms. Yet it is not “fundamental” in the traditional sense. When
the training of adult education teachers is to be regulated according to the
principles of “higher education” (Art. 149, sec. 2), religious instruction is
an established subject in schools (Art. 149, 1), and the personal papers of
civil servants are protected (Art. 129), these are certainly very important
provisions. hey have the character of “constitutional laws,” however, only
insofar as they are protected from the amendment votes of shifting parliamentary majorities.
he substantive meaning of the constitution has completely receded because the constitution was rendered relative by its transformation into constitutional law and by the formalization of constitutional law. “he essential
legal characteristic of constitutional laws lies exclusively in their enhanced
formal legality” (G. Jellinek, Allgemeine Staatslehre, p. 520). he fact that a
constitutional change requires satisfying the formalities of a constitutional
article on constitutional amendments, Art. 76, actually reduces the duration and stability of the constitution. If that really were the deinitive constitutional concept, then the provision on constitutional amendments for
the Weimar Constitution, in other words Art. 76, would be the essential
core and singular content of the constitution. he entire constitution would
Relative Concept of the Constitution
73
only be provisional and, in fact, an incomplete law, which must be illed out
each time in line with the provisions on constitutional amendment. he following additional provision must be appended to every valid constitutional
principle of current German constitutional law: excepting a change by way
of Art. 76. “he German Reich is a Republic” (Art. 1), excepting a change via
Art. 76; “marriage is the foundation of family life” (Art. 119), when something else is not determined in accord with Art. 76; “all inhabitants of the
Reich enjoy full freedom of belief and conscience” (Art. 135), so far as these
are not taken from them via Art. 76; etc. hat would be the consequence of
the “formal” constitutional concept, as it is apparently considered entirely
self-evident in contemporary German state theory.
However, such a concept of a constitution is neither logically nor juristically possible. One cannot orient the conceptual deinition of the constitution according to how a single constitutional law can be amended. It is also
not permissible to deine constitutional law as a statute amended through
a certain procedure, for the qualiied amendment conditions again ground
[20] themselves on a constitutional legal provision and presuppose its concept. It would obviously be incorrect to say that Art. 76 is a constitutional
law because it is subject to change under conditions it establishes, which, in
turn, means Art. 76 can even eliminate itself. First, it is incorrect to assume
that through Art. 76 any given constitutional legal regulation can be affected (cf. below § 11). And, second, the essence of a constitutional law does
not reveal itself in the fact that it can be altered in a particular procedure.
he essence of the object of change cannot in principle be deined in reference to the amendment procedure. A constitutional change conforming to
the constitution is logically and temporally dependent on the constitution.
Even without regard to Art. 76, the provisions of the Weimar Constitution
are constitutional laws in the formal sense. heir legal force is not due to
their eventual alterability. However, the provisions concerning amendment,
as with other constitutional law provisions, owe their legal force to the constitution. If one wants to glean the formal concept of the constitution from
the requirements for the amendment of a constitutional provision, then
one confuses the constitution-making power of the German people with
the authority that the Reichstag, the Reichsrat, or the electorate hold in Art.
76. he authority to undertake constitutional amendments resides in the
framework of the constitution, is established through it, and does not extend beyond it. his authority does not include the power to establish a new
constitution, and no power of the constitution can be gained in reference to
this authority, neither a “formal” concept nor some other useful one. Consequently, another concept is needed besides this “formal” deinition of the
constitution.
74
Relative Concept of the Constitution
§ 3.
he Positive Concept of the Constitution
(he Constitution as the Complete Decision over
the Type and Form of the Political Unity)
A concept of the constitution is only possible when one distinguishes constitution and constitutional law. It is not acceptable to irst dissolve the constitution into a multitude of individual constitutional laws [21] and then
to deine constitutional law in reference to some external characteristic or
even according to the method of its alteration. An essential concept of state
theory and the fundamental concept of constitutional theory are both lost
in this way. It was a typical error when a famous public law teacher was able
to claim that the transformation of the constitution into a “type of statute”
is a “result of the present political culture.” More precisely, the distinction
of constitution and constitutional law is for constitutional theory the beginning of any further discussion.
he just cited expression, that the constitution is a “type of statute,” stems from
Bernatzik (Grünhuts Zeitschrift für das Privat- und öfentliche Recht der Gegenwart,
vol. 26, 1899, p. 310). He is arguing against the opinion that the constitution is a
contract (between prince and parliament) and would like to distinguish clearly the
constitution as something lasting and irrefutable from the contract, which “creates
a self-serving relationship” and is challengeable “under certain conditions, null, refutable, dissolvable.” he confusion of constitution and constitutional law stems
from the fact that the concept of the law above all should merely emphasize polemically the opposition to a contract, while today just the opposition to the law (in the
sense of a decision of parliament) must be stressed, not in order to return to the
contractual construction, but rather in order to protect the positive concept of a
constitution against a formalistic dissolution and undermining.
I. he constitution in the positive sense originates from an act of the
constitution-making power. he act of establishing a constitution as such
involves not separate sets of norms. Instead, it determines the entirety
of the political unity in regard to its peculiar form of existence through
a single instance of decision. his act constitutes the form and type of the
political unity, the existence of which is presupposed. It is not the case that
the political unity irst arises during the “establishment of a constitution.”
he constitution in the positive sense entails only the conscious determination of the particular complete form, for which the political unity decides. his external form can alter itself. Fundamentally new forms can be
introduced without the state ceasing to exist, more speciically, without the
political unity of the people ending. However, a subject capable of acting,
one with the will to establish a constitution, is always a component of constitution making. Such a constitution is a conscious decision, which the
political unity reaches for itself and provides itself through the bearer of the
constitution-making power.
During the founding of new states (as in the year 1775 in the United States of
America or in the year 1919 during the founding of Czechoslovakia) or during fundamental social transformations (France 1789, Russia 1918), this aspect of the constitution as a conscious [22] decision determining the political existence in its concrete
form of being emerges especially clearly. Here can most easily arise the impression
that a constitution must always found a new state, an error, moreover, which derives from the confusion of a “social contract” (founding the political unity) with
the constitution. On this, cf. below § 7, p. 61. An additional, related error is viewing
the constitution as an exhaustive codiication. But the unity of the constitution lies
not in the constitution itself, but rather in the political unity, the peculiar form of
existence of which is determined through the act of constitution making.
he constitution, therefore, is nothing absolute insofar as it did not originate on its own. It is also not valid by virtue of its normative correctness
or on the basis of its systematic completeness. he constitution does not
establish itself. It is, rather, given to a concrete political unity. Linguistically,
it is perhaps still possible to say that a constitution “establishes itself” without immediately noticing the odd character of this manner of speaking.
However, that the constitution establishes itself is obviously nonsensical
and absurd. he constitution is valid by virtue of the existing political will
of that which establishes it. Every type of legal norm, even constitutional
law, presupposes that such a will already exists.
On the contrary, constitutional laws are valid irst on the basis of the
constitution and presuppose a constitution. For its validity as a normative
regulation, every statute, even constitutional law, ultimately needs a political decision that is prior to it, a decision that is reached by a power or
authority that exists politically. Every existing political unity has its value
and its “right to existence” not in the rightness or usefulness of norms, but
rather in its existence. Considered juristically, what exists as political power
has value because it exists. Consequently, its “right to self-preservation” is
the prerequisite of all further discussions; it attempts, above all, to maintain
itself in its existence, “in suo esse perseverare” (Spinoza); it protects “its
existence, its integrity, its security, and its constitution,” which are all existential values.
he combination “existence, integrity, security, and constitution” is especially
clear and correct. It is found in Art. 74a, which, in turn, had been adopted from the
federal act of the German Federation of 18 August 1836. his federation act provided
that any action against the existence, the integrity, the security, or the constitution
of the German Federation in the individual states of the federation is judged and
punished as high treason or treason against the individual Land. In its preamble, the
Swiss federal constitution of 29 May 1874 declares the purpose of the covenant to
be the strengthening of the federation as well as the preservation and advancement
of the unity, strength, and honor of the Swiss nation. In its Art. 2, the federal constitution declares the goal of the Federation [23]: “he defense of the independence of
76
Positive Concept of the Constitution
the fatherland against those outside the Federation, enjoyment of peace and order
internally,” etc. here is no constitution without such existential concepts.
Because every being is a concrete and determined existence, some kind
of constitution is part of every concrete political existence. But not every
entity that exists politically decides in a conscious action the form of this
political existence and reaches, through its own conscious determination,
the decision regarding its concrete type, as did the American states in their
Declaration of Independence and as did the French nation in the year 1789.
Compared to this existential decision, all normative regulations are secondary. Even all concepts applied in legal norms, which presuppose political existence, concepts such as high treason, treason against a Land, etc.,
preserve their content and their sense not from a norm but rather from the
concrete reality of something existing that is independent politically.
II. he Constitution as Political Decision. It is necessary to speak of the
constitution as a unity and, in this regard, to adhere to an absolute sense of
the constitution. At the same time, the relativity of the individual constitutional laws may not be misconstrued. he distinction between constitution and constitutional law, however, is only possible because the essence
of the constitution is not contained in a statute or in a norm. Prior to the
establishment of any norm, there is a fundamental political decision by the
bearer of the constitution-making power. In a democracy, more speciically,
this is a decision by the people; in a genuine monarchy, it is a decision by
the monarch.
hus, the 1791 French constitution contains the political decision by the French
people for constitutional monarchy with two “representatives of the nation,” the
king and the legislative body. he Belgian constitution of 1831 contained the decision by the Belgian people for a (parliamentary-)monarchical government on a
democratic foundation (constitution-making power of the people) in accordance
with the form of the bourgeois Rechtsstaat. he Prussian constitution of 1850 contained a decision by the king (as the subject of the constitution-making power) for a
constitutional monarchy in line with the bourgeois Rechtsstaat, whereby the monarchy as state form (not only as form of the executive) remains preserved. he 1852
French constitution contained the decision by the French people for the hereditary
empire of Napoleon III. Etc.
hese political decisions are fundamental for the Weimar Constitution.
here is the decision for democracy, which the German people reached by
virtue of its conscious political existence as a people. his decision inds
expression in the preamble (“the German people provided itself this constitution”) and in [24] Art. 1 sec. 2: “State authority derives from the people.”
Additionally, there is the decision for the Republic and against the monarchy in Art. 1 sec. 1: “he German Reich is a republic.” here is also the
decision for the retention of the Lands, therefore a federal-state (even if
not a strictly federal) structure for the Reich (Art. 2). he Constitution also
Positive Concept of the Constitution
77
contains the decision for a fundamental parliamentary-representative form
of legislative authority and government. Finally, there is the decision for the
bourgeois Rechtsstaat with its principles, fundamental rights, and separation of powers (below § 12, p. 126). In this way, the German Reich of the
Weimar Constitution characterizes itself as a constitutional democracy. In
particular, it designates itself a bourgeois Rechtsstaat cast in the political
form of a democratic republic with a federal-state structure. he Art. 17
provision prescribing a parliamentary democracy for all Land constitutions
contains the strengthening of this fundamental, total decision for the parliamentary democracy.
1. hese provisions are not constitutional laws. Clauses like “the German
people provided itself this constitution,” “state authority derives from the
people,” or “the German Reich is a republic,” are not statutes at all and,
consequently, are also not constitutional laws. hey are not even framework laws or fundamental principles. As such, however, they are not something minor or not worthy of notice. hey are more than statutes and sets
of norms. hey are, speciically, the concrete political decisions providing
the German people’s form of political existence and thus constitute the
fundamental prerequisite for all subsequent norms, even those involving
constitutional laws. Everything regarding legality and the normative order
inside the German Reich is valid only on the basis and only in the context
of these decisions. hey constitute the substance of the constitution. he
fact that the Weimar Constitution is actually a constitution and not a sum
of disconnected individual provisions subject to change according to Art.
76, which the parties of the Weimar governmental coalition agreed to insert
into the text on the basis of some “compromise,” lies solely in the existential,
comprehensive decision of the German people.
It is a typical error of prewar-era state theory to misconstrue the essence
of such decisions and, from the [25] feeling that something other than a
statutory norm is present, to speak “consequently” of “mere proclamations,”
“mere statements,” or, indeed, “commonplaces.” From both sides, the constitution dissolves itself into nothing: a few more or less tasteful modes
of address, on the one side, a number of disconnected, externally distinguished statutes, on the other. hese fundamental political decisions, when
properly understood, are the deining and genuinely positive element for a
positive jurisprudence. he additional norms, enumerations, and detailed
delimitations of competencies, the statutes for which the form of constitutional law are chosen for whatever reason, are relative and secondary to
the fundamental political decisions. he external distinctiveness of these
relative and secondary provisions is that they may be changed or eliminated
only through the qualiied amendment procedure of Art. 76.
he 1871 and 1919 Reich Constitutions contain prefaces, “preambles,” in which
78
Positive Concept of the Constitution
the political decisions are expressed especially clearly and emphatically. German
constitutional law theory treated them mostly as “mere statements,” cast as “historical utterance,” “merely expressed, not dispositive” (thus Anschütz, Kommentar, p. 32; Meyer-Anschütz, p. 646n). Even the aforementioned writers, who display greater understanding for the legal meaning of these preambles and do not
extend the meaning of such simple distinctions, claim only that the preambles
should deine “the spirit of the constitutional work,” that it is a matter of “imponderables,” etc. (Wittmayer, p. 40). E. Hubrich, Das demokratische Verfassungsrecht
des Deutschen Reiches, Greifswald 1921, p. 13, has gone the furthest when he claims
that the preamble of the Weimar Constitution has not merely an enumerative, but
“a genuinely dispositive-juristic character.” Why? Because it is promulgated according to § 6 of the statute of 10 February 1919! Additionally, however, he claims that it
has this character because it contains binding rules, even if only “in entirely general
outlines,” which is an interesting linkage of helpless formalism with some sense for
the substantive meaning of the preamble. In the proceedings of the Weimar National Assembly, prewar-era turns of phrase dominated (Kahl, Protocol, p. 490). One
spoke of “mere determination,” even of agitational efect and other psychologically
interesting things. But the decisive point is that the preamble of the Weimar Constitution contains the authentic declaration of the German people that as the bearer of
the constitution-making power, it will decide with full political consciousness. he
distinctive democratic element of the constitution is that the people, not the king,
exercise the constitutive power. In prewar jurisprudence certainly, there was no talk
of this decisive opposition between the constitution-making power and any other
derived authority and powers, and most jurists of the Weimar National Assembly
spoke only in the vocabulary of monarchical public law.
2. he practical meaning of the diference between constitution and constitutional law makes itself evident in the following examples of its use.
(a) Constitutional laws can be changed by way of Art. 76. However, the
constitution as a whole cannot be changed in this way. Art. 76 stipulates
[26] that “the constitution” can be changed by legislation. Indeed, the wording of this article, which relects the unclear linguistic usage that was typical until now, does not distinguish between constitution and constitutional
law. Nevertheless, the sense is transparent and will emerge ever more clearly
in later remarks (on the boundaries of the jurisdiction for constitutional
amendments, [see] § 11, p. 102). hat “the constitution” can be changed
should not be taken to mean that the fundamental political decisions that
constitute the substance of the constitution can be eliminated at any time
by parliament and be replaced through some other decision. he German
Reich cannot be transformed into an absolute monarchy or into a Soviet republic through a two-thirds majority decision of the Reichstag. he “legislature amending the constitution” according to Art. 76 is not omnipotent
at all. he manner of speaking associated with the “all-powerful” English
Parliament, which since de Lolme and Blackstone has been thoughtlessly
repeated and applied to all other conceivable parliaments, has produced
a great confusion. A majority decision of the English Parliament would
Positive Concept of the Constitution
79
not suice to make England into a Soviet state. To maintain the opposite
would not be a “formal way of thinking” at all. It would still be equally false
whether taken politically and juristically. Only the direct, conscious will of
the entire English people, not some parliamentary majority, would be able
to institute such fundamental changes.
Consequently, constitution “making” and constitutional “change” (more accurately, revision of individual constitutional provisions) are qualitatively diferent,
because in the irst instance the word “constitution” denotes the constitution as
complete, total decision, while in the other instance it denotes only the individual
constitutional law. A “constitution-making” assembly is thus also qualitatively different from a conventional legislative body. In other words, it difers from a constitutionally sanctioned legislative body, such as a parliament. he text of the Weimar
Constitution came about through the simple majority decision of a “constitutionmaking” assembly. Naturally, this constitution-making body cannot establish constitutional provisions by virtue of its own authority. It can do so, rather, on the basis
of an unmediated special commission. If such a constitution-making assembly were
not qualitatively diferent from a properly constituted parliament, one would be led
to the nonsensical and unjust result that a parliament could bind all subsequent parliaments (selected by the same people according to democratic electoral methods)
through simple majority decisions and could make a qualiied majority necessary
for the elimination of certain (not qualitatively diferent) laws, which came about
through simple majority. On the distinction between constitution making and constitutional change in the broader sense, see below § 10, I, p. 92, and § 11, p. 101.
(b) he constitution is inviolable. Constitutional laws, by contrast, can
be suspended during the state of exception and be violated by measures
of the state of exception. [27] According to Art. 48, 2, the President is empowered to issue such measures, and the basic rights established in Articles
114, 115, 117, 118, 123, 124, and 153 can be set aside temporarily. All of this
does not impinge on the fundamental political decisions and the substance
of the constitution. It stands precisely in service of this constitution’s preservation and creation. herefore, it would be nonsensical to render every
single constitutional law inviolable because the constitution is inviolable
and to see in every single constitutional provision an insurmountable obstacle to the protection of the constitution in general. hat meant in practice nothing other than placing the individual statute above the entirety of
the political form of existence and to twist the meaning and purpose of the
state of exception into its opposite.
For the interpretation of Art. 48, sec. 2 (dictatorship of the President), there is
the theory that the President’s measures may not “infringe” a single constitutional
provision (except the seven Basic Rights that may be suspended), because “the constitution” is “inviolable.” For example, the theory put forth by Richard Grau, which
he himself dubbed the “theory of inviolability” (Die Diktaturgewalt des Reichtspräsidenten und der Landesregierungen auf Grund des Artikels 48 der Reichsverfassung,
Berlin 1922; see also Verhandlungen des 33. Deutschen Juristentags, 1925, p. 81f.,
and Gedächtnisschrift für Emil Seckel, 1927, p. 430f.). his theory is only tenable as
long as the constitution is confused with every individual constitutional law and a
80
Positive Concept of the Constitution
distinction is not made between a principle like “the German Reich is a Republic”
(Art. 1) and individual provisions like “the civil servant is protected from intrusion
into their personal papers” (Art. 129). he essence of a commissarial dictator must
thereby be entirely misconstrued.
(c) he constitution safeguards a series of so-called basic rights. he
individual constitutional law provision of such basic rights’ guarantees is
distinguishable from the guarantee itself. Wide-ranging intrusions into
the guaranteed basic rights are permitted via constitutional and statutory
norms. But as soon as the basic right is abolished, the constitution itself is
violated. In a bourgeois Rechtsstaat, such an elimination of rights may not
be undertaken through a constitution-amending statute. On this, cf. below
§ 14, p. 177.
(d) A constitutional dispute in the actual sense does not involve each
of the many constitutional law details. Such a dispute concerns only the
constitution as fundamental political decision. On this, cf. below § 11, III,
p. 112.
(e) he oath to the constitution (Art. 176) does not mean an oath regarding every single constitutional norm, nor [28] does it constitute a blanket
(immoral) oath referring to the amendment procedure and containing the
consent for and submission to everything that comes about by way of Art.
76. One cannot swear an oath to an amendment procedure. he particularity and distinctiveness of the oath is that oath-takers bind themselves
existentially. he oath to the constitution is such a bond to the form of
political existence. his oath is to the constitution in the actual and positive
sense. In other words, it signiies an acknowledgement of the fundamental
political decisions contained in the Weimar Constitution. his is a recognition that reinforces these decisions and out of which a constitution in
the substantive sense is irst constituted at all (see the Bonn dissertation of
E. Friesenhahn, Der politische Eid, Bonner Abhandlungen Heft 1, 1928).
(f ) High treason is an attack on the constitution, not on the individual
constitutional law. See below § 11, IV, p. 119.
(g) Constitutional law provisions can continue to be valid as statutory
provisions after the setting aside of the constitution, even without the issuance of a special statute (cf. the examples below at § 10 II, 2, p. 94). Selfevidently, the constitution that is set aside no longer comes into consideration.
(h) According to Art. 148, 3, p. 2, every school-age child receives a copy
of “the Constitution” at the end of their mandatory schooling. Naturally, it
does not contain the extensive and diicult collection of constitutional laws
in the formal sense, which have been issued since 1919 in conformity with
the qualiied amendment procedure of Art. 76. Not once is a copy of the
constitutional laws of 30 August 1924 (Reichgesetzesblatt II, pp. 235–357),
Positive Concept of the Constitution
81
issued on the basis of the London Protocols of the 16 August 1924, passed
out to schoolchildren. Despite Art. 178, 2, p. 2, it is just as unlikely that a
copy of the treaty of the 28 June 1919, signed in Versailles, would be distributed.
III. he Compromise Character of the Weimar Constitution.
1. he Weimar Constitution is a constitution because it contains the
above (under II 1) enumerated, fundamental political decisions regarding the German people’s concrete form of political existence. However,
in the details of the constitutional law order as well as in special declarations and programs incorporated into the constitution, there are some
compromises and ambiguities not containing a decision. [29] Put more
accurately, through these compromises and indistinct elements, the coalition parties attempted to evade just such a decision. hese decisions, of
course, which the political situation immediately calls into question, cannot be avoided in the constitution. For otherwise there is no constitution at
all. If a “constitution-making” assembly would attempt to evade a decision
here, then the decision falls outside of the assembly, and it is to be settled
through either violent or peaceful means. In the latter case, it can be that
a simple statute or even a mere precedent occasions the decision. his is
because the precedent’s consequential efect is only explicable by the fact
that one was able to recognize in it the will of the people as the bearer of the
constitution-making power.
During the formulation of the constitutional laws of 1875, the French National
Assembly attempted to hold open the possibility of a reintroduction of the monarchy. hese constitutional laws, therefore, contained no clear decision on the one
question to be decided, monarchy or republic? he constitutional laws were a “constitution of anticipated monarchy” (J. Barthélemy). he decision occurred later
partly in the statute of 14 August 1884 (on the extension of § 3 Art. VIII of the constitutional law of the 25 February 1875), which provided that the republican state
form cannot be an object of a proposed constitutional amendment. But partly, in
fact, the decision was already reached through the position of the French people. In
1875, a republican majority had been elected in the assembly. In 1877, through MacMahon’s attempt to dissolve the assembly, it was settled that once again a republican
majority had been elected. he disapproval of the people regarding the methods of
the “attente monarchique” was so strong and clear that this unsuccessful dissolution
became a precedent of unheard-of scope. More speciically, the right of the president to dissolve parliament as well as the veto right of the French president have
since then become practical nullities. Despite the clear text of the statute, it can no
longer be exercised. All the consultants’ reports by jurists, which base themselves
on this text and make reference to the fact that the right is still formally valid and
is not set aside through a statute amending the constitution (cf., for example, the
interesting survey in the Revue des Vivants, September 1927, p. 259f ), have as yet
been able to change nothing in regard to the efect of this precedent from 1877. he
remarkable power of such an individual case is the fact that the political decision of
the French people for the republic and against the monarchy was made through the
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Positive Concept of the Constitution
aforementioned rejection of Mac-Mahon’s “coup d’état,” a decision that the National
Assembly attempted to evade in the constitutional laws of 1875. However, as soon as
this sense of the precedent is clearly recognized and acknowledged, the dissolution
authority can receive its actual and accepted meaning and become efective again in
a practical sense.
2. he Weimar Constitution is a constitution, not merely a series of constitutional laws. It contains the fundamental political decisions for a constitutional democracy. But in the constitutional declaration as well as in individual directives, especially of the Second Part under the heading “Basic
Rights and Duties of [30] Germans,” there is a hodgepodge of programs and
positive provisions, which provides the foundation for the most diverse political, social, and religious matters and convictions. Bourgeois guarantees
of personal freedom and private property, all of an individualistic variety,
socialist programmatic principles, and Catholic natural law are frequently
jumbled together in an often somewhat confused synthesis. In this regard,
one must keep in mind that in general a compromise is hardly possible between the ultimate oppositions of genuine religious convictions, just as little
between genuine class oppositions. At the very least, such compromises are
quite diicult. When a constitution is at issue, a compromise will only be
possible when the will to political unity and state consciousness strongly
and decisively outweighs all religious and class-based oppositions, so that
these religious and social diferences are rendered relative. he fundamental
political questions, posed directly in the political situation of 1919—therefore, the questions: Monarchy or republic? Constitutional monarchy or the
dictatorship of councils?—could not and have not been evaded. A compromise would have been impossible, and if it had come about, then, as noted,
it would have only resulted in a dubious decision. he character of a written
constitution would have been undermined; the decision would have been
reached by way of customary law or practice, but especially through precedents like the events in France after 1875.
Apparently, however, the Weimar Constitution does not contain all the
fundamental political decisions that had to be faced under the circumstances of the year 1919. he great choice, bourgeois or socialist social order,
was seemingly settled only through a compromise. he Second Principal
Part of the Weimar Constitution shows “a mixed character” in its provisions
on the Basic Rights and Duties of Germans, which is “to a certain degree
a middle stage between bourgeois and socialist perspectives” (thus the socialist delegate Katzenstein, Bericht und Protokolle des Achten Ausschusses
der verfassungsgegebenen Deutschen National Versammlung, Berlin, 1920,
p. 186). In reality, however, only a series of social reforms are introduced,
presented partly as a program, while distinctive political consequences had
not been drawn from the principles of socialism. he fundamental deciPositive Concept of the Constitution
83
sion was made throughout the Constitution for the bourgeois Rechtsstaat
and constitutional democracy. One wanted [31] “to disagree not about
principles or about worldviews” and “to ind common ground regarding
the regulation of individual relations” (Düringer, Bericht und Protokolle,
p. 186). But in the given circumstance, the principal either-or was unavoidable. he decision must already have been made to go with the existing social status quo, in particular the retention of the bourgeois social order, because even the Social Democrats emphatically rejected the other decision,
which was a consistently executed socialist revolution in accordance with
the Soviet type of constitution (“We Social Democrats reject the excessive
sharpness and decisiveness of the Soviet constitution,” Katzenstein, Bericht
und Protokolle, p. 186). Delegate Martin Spahn expressed what must result
in this situation. “Determining the relationship of the state to social movements extends beyond the realm of the traditional constitution,” he argued.
“I intend to continue to adhere to the traditional standpoint and not to place
us on the ground of the social movements arising through revolution, since
the development is not yet concluded and today we cannot discern, which
direction it can still take” (Bericht und Protokolle, pp. 185/6). Of course, the
“traditional constitutions” were in no way constitutions that did not take
account of “the relationship of the state to social movements.” hey were
constitutions of the bourgeois Rechtsstaat, and, as such, they contained the
decision for certain principles of bourgeois freedom to be discussed more
fully below (§ 12), speciically basic rights and separation of powers. he
statement of delegate Martin Spahn, therefore, meant nothing other than
that the question, bourgeois Rechtsstaat or proletarian class-based state?,
had been decided in favor of the bourgeois Rechtsstaat. A decision was unavoidable and inescapable.
3. In contradistinction to these genuine decisions on questions of principle, also in contrast to genuine compromises on details not involving principles, compromises through which organizational and substantive details
found their objective regulation and order, the provisions of the Weimar
Constitution still contain a series of compromises that are not genuine and
are constituted entirely diferently. One could term these apparent compromises because they reach no substantive decision through reciprocal compliance. Its essence, rather, is simply the drawing out and postponing of this
decision. [32] For the compromise consists in inding a formula that satisies all contradictory demands and leaves, in an ambiguous turn of phrase,
the actual points of controversy undecided. So the constitution contains
only an external, semantic jumble of substantively irreconcilable matters.
Such apparent compromises are in a certain sense efective compromises,
for they would not be possible if there were no consensus between parties.
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Positive Concept of the Constitution
But the understanding does not afect the issue in question; one only agreed
on postponing the decision and to keeping open the most varied possibilities and interpretations. he compromise does not involve the objective
resolution of a question in the form of mutual compliance with substantive principles. Instead, the agreement is satisied with a dilatory formula
that takes account of all opposing claims. Examples of these dilatory formal
compromises are also found in the Weimar Constitution. hat is immediately understandable in view of the composition of the Weimar National
Assembly. In his work on the Weimar Constitution, E. Vermeil (Strassburg
1923, especially p. 223) portrayed the contradictions within the National
Assembly and the absence there of a “homogeneous and coherent theory.”
Dilatory compromises were unavoidable given the strong religious and social oppositions inside Germany and during such a critical situation as the
summer of 1919, if the process of constitution making were to come to a
conclusion at all. Under the presupposition that the essential political decisions are reached, no reasonable grounds speak against one postponing
the decision of other questions and leaving aside for the time being all religious and social oppositions. Nevertheless, it would be foolish and a sign
of a deicient capacity for juristic distinction to confuse the dilatory formal
compromise with a genuine substantive compromise and to assume that
substantive oppositions of a principled type be handled in the long term
with the method of such formal compromises.
he typical examples of dilatory formal compromises are found in the Second
Principal Part of the Weimar Constitution, especially in the third and fourth sections, which regulate the relationship between church and state and between the
state and schools. Church and state are not separated from one another under the
Weimar Constitution. More speciically, the church is not treated as a private society; so religion is not treated as a “private matter.” he state is not “secularized.”
he demands of radical bourgeois liberalism and the program of Social Democracy, which is thoroughly liberal in these [33] so-called cultural-political questions,
are not met. Consequently, according to the Weimar Constitution, religion cannot
be a private matter because religious societies remain public law organs to the extent they were before (Art. 137). When religion is something purely private, then
what should be understood as the “public” character of religious bodies would be
inconceivable. he state cannot radically separate itself from an aspect of public
life, which is acknowledged as public. he fact that religious instruction is recognized constitutionally as a compulsory subject in schools (Art. 149, sec. 1), along
with the recognition of Sunday and holidays (Art. 139), makes a radical separation
of church and state impossible. On the other hand, there should be no “state church”
(Art. 137, 1), apparently also not in the degree to which the Prussian state previously
made the Christian religion the foundation of public life (On Art. 14 of the Prussian
Constitution of 1850, see Anschütz, Die Verfassungsurkunde für den Preussischen
Staat, 1912, p. 260f.). he question of whether public life in Germany should retain
a distinctly Christian character is not clearly answered in the negative. hat is of
great practical importance for the daily state practice and communal administration
Positive Concept of the Constitution
85
and for the use of state supervisory concepts such as “public order.” Compare the
decision of the Prussian High Court for Administration, vol. 43, p. 300, that reads:
“According to its historical and constitutional formation in the Prussian state, the
Christian religion is a part of the public order and, consequently, is placed under the
protection of state authorities.” Elsewhere in the Constitution there are the beginnings of an efective separation of church and state. Art. 138, for example, provides
for a discontinuance of state services to the religious societies through Land legislation. “State services to religious societies based on statute, contract, or special
legal title,” it reads, “will be discontinued through Land legislation.” “he guiding
principles for this transfer of authority are established by the Reich.” his apparently
corresponds to the demand of Democrats and Independent Socialists for full inancial separation. But the question is whether this order for a transfer of authority
under Art. 138 means simultaneously the prohibition of additional state services to
the church. One side contends this (Israël, Reich, Staat, Kirche, 1926, p. 19), so that
it is concluded from the rationale of Art. 138 that valid Reich constitutional law prohibits any future expenditure of state resources for the church. In a “tactically clever
manner,” the other side was able to ensure that the parties of the right and the Center, both in committee and in the plenum of the National Assembly, side-stepped
discussion of these points and thereby prevented incorporation of a prohibition into
the text of the constitution (E. R. Huber, Die Garantie der kirchlichen Vermögensrechte in der Weimarer Verfassung, 1927, pp. 5/6). hat means the question of inancial
separation would not be decided and should not be decided. As is the case in most
such suspensions of decision, the result is the retention of the status [34] quo ante.
Overall, one can say that according to the provisions of the Weimar Constitution,
the state is certainly separated and distanced from the church, and thus deprived of
its inluence. But one cannot say the contrary, that the church has been separated
from the state.
he so-called school compromise of Art. 146 contains the second example of a
dilatory formal compromise. Section 1 establishes the basic principle of the community (integrated) school. In section 2, “however,” the “will of the guardians,” that
is in practical terms the confessional school, is set alongside it as an autonomous
principle. In Art.144, the basic principle of the state school is recognized. his principle states that the local communities can participate in the state’s supervision of
schools, while the religious societies are not named. According to Art. 149, 1, however, religious instruction is a compulsory subject in schools and “to be ofered in
agreement with the basic principles of the afected religious societies.” he perspectives of a strictly implemented state school, one determined by the will of the guardians, a confessional school and a free school are validated indiscriminately. When it
comes to the practical execution of a school statute on the basis of Art. 146, a collision between these principles is unavoidable. It can be resolved through a simple
“yes” or “no” or through substantive compromise and reciprocal concessions. But
the fact that principles are recognized equally without distinction does not contain a
substantive decision, or even a genuine compromise decision. Instead, it only refers
to a subsequently concluded compromise, a compromise, in other words, that temporarily postpones the decision.
hese two examples of dilatory formal compromises are of great juristic signiicance, because they show that some constitutional provisions do
not contain a decision at all, not even a compromise decision. As noted, it
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Positive Concept of the Constitution
can be politically clever and reasonable to postpone the decision in such a
way. Nevertheless, the peculiarity of the dilatory formal compromise must
remain evident, because otherwise the juristic interpretation of that type of
constitutional provision ends in a hopeless confusion. When the “intention
of the statute” should be certain, and when there is actually no intention
other than not to have one in this matter for the time being, thereby postponing a decision, then all the semantic artistry, all the poring over of the
history of the provision, even all the private statements of the participating delegates, always only lead to the result that one word of the statutory
text is played out and emphasized against another, as is one clause against
another, all without a persuasive demonstration being possible—that is to
say, assuming it proceeds in an intellectually conscientious manner. When
the [35] legislator establishes such formulas, that just means the diferent
parties and principles can make reference to the text of the constitution.
Herein lies the explanation for the fact that currently (fall 1927) the educational law implementation of the so-called school compromise (Art. 146)
presents the picture of an eternal discussion without a chance of conclusion, in which both parties refer to the text of the constitutional law with
complete conviction, and in which exceptional jurists like R. homa and
K. Rothenbücher as well as the Prussian government raise claims of constitutional injury and unconstitutionality in reference to the government’s
draft law (cf. W. Landé, Aktenstücke zum Reichsvolksschulgesetz, Leipzig
1927, pp. 112, 113, 125). he substantive decision is rendered as a political
decision through the educational law itself, in other words, when it comes
to the execution of the formal compromise, not through juristic interpretation and consultant reports. Where no will or determination is at hand,
then even the greatest legal acumen has lost its justiication. All “normative” consideration ends in a miserable linguistic manipulation.
If the Weimar Constitution contains nothing besides such dilatory compromises, its value would certainly be illusory, and one must understand
that the fundamental decisions are reached outside of the constitutionally
provided procedures and methods. However, the substance of the Weimar
Constitution lies in the fact that it reaches the fundamental political decisions concerning the political form and principles of the bourgeois Rechtsstaat clearly and unambiguously. Without this political decision, its organizational provisions would only be the norms of something that merely
functions without substance, and its individual statutory provisions would
only mean a tactical victory, which was achieved by some party coalition in
a favorable moment in order to protect its partisan special interests against
shifting parliamentary majorities.
From a radical socialist perspective, one could consider the German people’s
decision in the Weimar Constitution not essential and say that the actual question
Positive Concept of the Constitution
87
of the situation of the year 1919 involved the class opposition between the capitalist bourgeoisie and socialist proletariat, and in this question the Weimar Constitution also contains only an unclear, dilatory formal compromise. hat is incorrect.
he Weimar Constitution reaches a decision in this regard: the German Reich is
a constitutional democracy. What is designated as a compromise in this socialist
claim is, in fact, not a compromise to a greater extent [36] than is social democracy
and the Second International itself, which is a compromise of liberal, democratic,
and socialist ideas. At the very least, the political choice, republic of councils with
dictatorship of the proletariat or liberal Rechtsstaat with democratic state form, is
clearly settled.
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Positive Concept of the Constitution
§ 4.
Ideal Concept of the Constitution
(“Constitution” in an exemplary sense,
thus named because of a certain content)
I. For political reasons, that which is designated as a “true” or “genuine”
constitution often only corresponds to a particular ideal of the constitution.
A consequence of the manner of speaking typical of political conlict is
that every struggling party recognizes as a true constitution only the constitution corresponding to their political demands. If the principle political
and social oppositions are very strong, it follows closely that a party denies
the name of constitution in general to any constitution that does not satisfy
its demands. In particular, the liberal bourgeoisie established a certain ideal
concept of constitution in its struggle against the absolute monarchy and
identiied it with the concept of constitution in general. One spoke only of
“constitution” when the demands of bourgeois freedom were fulilled and
a decisive political inluence was secured for the bourgeoisie. An especially
diferentiated concept arose in this way. More speciically, it is no longer
self-evident that every state has a constitution. Yet there are states with
and those without a constitution, “constitutional” states and “nonconstitutional” states. One even speaks of a “constitutional state constitution,” of a
state constitution that corresponds to a constitution more precisely, which
would be nonsensical if a particular political program did not lie behind the
concept of a constitution.
he so-called positivistic state theory also established an identity between “constitution” and “constitutional state constitution” (G. Jellinek, Staatslehre, p. 499). In
this regard, the political success of a movement is relected in the state and constitutional theory of the day. Nineteenth-century public law theorists in general also
have a deinite ideal of the constitution, a liberal-bourgeois one in particular, which
they implicitly subordinate to their juristic deductions, even if they anticipate several theoretical distinctions. Otherwise, in the nineteenth-century concept of a constitution, the ideals of liberal-bourgeois freedom connect themselves to the ideal of
democratic self-determination of the people. Cf. the deinition of the constitution in
Lorenz von Stein above at § 1, p. 6. [37]
Confusion and lack of clarity arise easily through the combination of
an ideal concept of constitution with other concepts of the constitution
or through the linkage of diverse ideals of the constitution. When parties
with contradictory opinions and convictions achieve political inluence,
they express their political power by giving concrete content to the concepts of state life, such as freedom, justice, public order, and security, all
of which are necessarily undeined. It is self-evident that “freedom” in the
sense of a bourgeois social order resting on private property means something other than a state dominated by a socialistic proletariat, that the same
circumstance which appeared in a monarchy as “endangerment of the public peace, security, and order” would be judged diferently in a democratic
republic, etc. For the manner of expression characteristic of bourgeois liberalism, there is a constitution only when private property and personal
freedom are ensured. Everything else is despotism, dictatorship, tyranny,
slavery, or whatever the designations may be, not a “constitution.” For a
consistently Marxist perspective, on the contrary, a constitution that recognizes the principles of the bourgeois Rechtsstaat, those concerning private property in particular, is either the constitution of an economically
and technically backward state or a reactionary sham constitution, a meaningless juristic façade concealing the dictatorship of the capitalists. Take
another example. In terms of a logically consistent “secularization,” which
is a state with a strict separation of church and state, a state that does not
maintain this separation is not free. On the contrary, for a certain type of
confessional and religious conviction, a state only has a true constitution
when it respects the social and economic property position of the church,
guarantees the free public activity and self-determination of the church,
and protects its institutions as a part of the public order, etc. Only then will
the church concede that one can speak of “freedom.” For this reason, there
are just as many possible concepts of freedom and constitution as there are
political principles and convictions.
II. he Ideal Concept of the Constitution of the Bourgeois Rechtsstaat.
A particular ideal concept established itself so successfully during the historical development of the modern constitution that since the eighteenth
century only those constitutions [38] corresponding to the demands of
bourgeois freedom and containing certain guarantees of this freedom are
designated constitutions.
1. Constitution = a system of guarantees of bourgeois freedom. his concept of a constitution rests on the division of free and non-free constitutions, a division that is in itself boundlessly ambiguous but receives its concrete meaning from an expression of Montesquieu. It is traceable to a clause
of the “Esprit des lois,” bk. XI, chap. 5 and 7, which reads: “A few constitutions have the glory of the state (la gloire de l’état) for their direct object and
purpose, others the political freedom of the state citizens.” With this, the
fundamental distinction of freedom and power, liberté und gloire, is established. Apparently, Montesquieu himself treats both as still equally valid
and equally valuable directives for state life. With the advance of the liberal
bourgeoisie, bourgeois freedom became the deining directive, though not
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Ideal Concept of the Constitution
for the political life of the state in general and especially not for its foreign
policy, but certainly for the realm of constitutional legislation. he example
of the United States of America and of the French revolutionary constitution provided this type its imprint and determined the schema of its type
of constitution. Only those constitutions which contain a few guarantees
of bourgeois freedom, discussed immediately below, will be viewed as free
constitutions deserving the name “constitution.”
Esmein only treats “free constitutions” in his comparative constitutional law,
for example. For him, those are the constitutions of England, the United States of
America, and France, as well as those constitutions they inluenced and that correspond to their type. he constitutions of the German constitutional monarchy and
the German Reich Constitution of 1871 are not considered, because they are not a
free constitution of this type. he Weimar Constitution of 1919, by contrast, is considered in its new editions (since 1921).
he recognition of basic rights, separation of powers, and a minimum
degree of the people’s participation in the legislative power through a
popular assembly are deemed valid as constitutional guarantees of bourgeois freedom. Additional demands supplement these, always according to
the political situation. In the nineteenth century, for example, there is the
demand for a parliamentary government, which is designated a free government,1 and which provides the justiication for the fact that that the German constitutional monarchy without a parliamentary [39] government is
not understood as a free government, while the nonparliamentary government of the United States of America nevertheless counts as one.
2. Constitution = the so-called division (more accurately, separation) of
powers.2 he so-called division of powers discussed below (§ 15, p. 182), with
its separation of legislative power, administration, and the judiciary, has
been valid since the eighteenth century in the special sense of being necessary to a free and genuine constitution. It contains the organizational guarantee against the misuse of state power. he proclamation of basic rights
signiies only the establishment of a general principle of individual freedom, though still not its organized execution through a state structure that
is deined by the goal of bourgeois freedom. Given this, it is understandable that the “division of powers” becomes the deining characteristic of the
constitution. According to this understanding, where it is not instituted or
where it is eliminated, then eo ipso despotism, absolutism, dictatorship are
dominant. All of these designations receive their juristic sense through an
opposition and are not simple political expressions. hey denote the denial
of the organizational principle of the separation of the legislative, executive,
and judicial powers.
hus, the oft-cited Art. 16 of the French Declaration of the Rights of Man of 1789
states (after the model of the North American constitutions, for example, Massachusetts and New Hampshire) that “every social order, in which the guarantee of
Ideal Concept of the Constitution
91
the basic rights is not secured and the separation of powers is not provided, does
not have a constitution.” (Toute société dans laquelle la garantie des droits n’est pas
assurée, ni la séparation des pouvoirs déterminée, n’a pas de constitution) he same
is true of German Idealism’s understanding of the philosophy of state, especially
that of Kant and Hegel (cf. below § 12, p. 127). It is signiicant for the Weimar Constitution that even Hugo Preuss shared this understanding and adopted this standpoint for his irst drafts of the Weimar Constitution, which he retained in principle
even during the additional proceedings. His understanding, more speciically, was
that the organization of the state exercise of power for the guarantee of bourgeois
freedom, which was also for him the deining directive, is even more important than
the proclamation of basic and liberty rights.
3. Constitution = written constitution (constitutional proclamation). he
political demand of a written constitution leads to an additional equivalency: constitution = written constitution. As presented above (§ 2, II, p. 13),
this equivalency is irst a conirmed contract (between prince and estates
or popular assembly), then a written constitutional law. Political circumstances account for this manner of speaking. In medieval times, agreements between the prince and his [40] vassals or estates had been ixed in
written form and designated as “Charte,” of which the “Magna Charta” of
1215 is the most famous example. hese charters were, in fact, reciprocal
agreements, so-called Stabilimenta, between both parties, guarantees of
the privileges of the vassals or estates and, more speciically, the services
they owe in return. hey were, as Bernatzik pithily states, a “mutually beneicial relationship.” Consequently, there is something here that is essentially
diferent from a modern constitution in the sense of a total political decision. Cromwell’s “Instrument of Government” from the year 1653 is the irst
example of a modern written constitution. Cromwell himself expressed the
purpose of this instrument. here must be a lasting, inviolable rule against
the shifting majority decisions of parliament; in every government must
reside something fundamental, something like a great charter, which is
constant and unchanging. he ambiguous word “fundamental” receives the
sense of something absolutely unbreakable. For example, that a parliament
can never declare itself a permanent body constitutes such a fundamental
principle. If the legislature, speciically the parliament, could change that,
there would no longer be any security, etc. Cromwell’s eforts remained
unsuccessful. he modern practice of the written constitution irst begins
with the English colonies in North America. As they separated themselves
from England and declared themselves independent states, they formulated
their constitutions in written form. A “congress” in 1776 prompted all these
states to undertake these actions. Since the French Revolution of 1789 and
the irst modern written constitutions on the European continent, the 1791
French constitution, constitutions with a typical content occurred regularly
during the founding of states and after revolutions, the scheme of which
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Ideal Concept of the Constitution
till now corresponded mostly to the basic schema, discussed below (§ 12,
p. 126), of the bourgeois Rechtsstaat with basic rights and separation of
powers. he Weimar Constitution also still follows this schema. he Soviet
Republic constitution of 11 July 1918 abandoned the schema of the bourgeois Rechtsstaat and established a new type of constitution, the socialistic
soviet constitution.
III. he ideal concept of the constitution dominant today still corresponds to the bourgeois Rechtsstaat’s ideal of a constitution. When one
looks past Bolshevist Russia and fascist Italy, one can say that this ideal
concept is still valid in most [41] states of the globe. he peculiarity of its
ideal of a constitution is that an organization of the state is undertaken
with a perspective that is critically and negatively disposed toward state
power—protection of the citizen against the misuse of state power. Not so
much the state itself as the means and methods of its control are organized. Guarantees against state overreaching are created and obstacles to
the exercise of state power are sought. A constitution that contains nothing other than these guarantees of the bourgeois Rechtsstaat would be unthinkable. For the state itself, the political unity, hence that which is to be
governed, must be present or simultaneously organized. he aspiration of
the bourgeois Rechtsstaat, however, is to repress the political, to limit all
expressions of state life through a series of normative frameworks, and to
transform all state activity into competencies, which are jurisdictions that
are precisely deined and, in principle, limited. hus, it is evident that the
bourgeois Rechtsstaat component can constitute only a part of the entire state constitution, while another part contains the positive decision
over the form of political existence. his means that the constitutions of
today’s bourgeois states are always composed of two components: On the
one hand, the principles of the Rechtsstaat for the protection of bourgeois
freedom against the state and, on the other hand, the political component,
from which the actual state form (monarchy, aristocracy, or democracy, or
a “status mixtus”) is derived. In the connection between both these components lies the peculiarity of today’s constitutions of the bourgeois Rechtsstaat. his duality determines its total structure, and by way of central concepts, such as the concept of the statute, it leads to corresponding dualisms.
he following exposition of the basic scheme of the modern constitution
(§ 12, p. 126) and of the relationship of state form and legality (§ 16, p. 200)
receives its fundamental outlines and its essential structure through it.
[42]
Ideal Concept of the Constitution
93
§ 5.
he Meanings of the Term “Basic Law,”
Basic Norm or Lex Fundamentalis
(Summarizing Overview)
I. Overview.
1. In a general, not precise sense, all statutes or agreements that appear
to be of special political importance to the persons or groups politically
inluential at the time are called “basic laws.”
hus, the numerous agreements, concessions, privileges of the German estates
in regard to the German Kaiser are termed basic laws (leges fundamentales). On
this, cf. below p. 48. he idea of political unity diferentiates itself. he concept of the
basic law also becomes pluralistic and relative.
2. Basic law = an absolutely unbreakable norm, which may be neither
changed nor violated by conlicting norms.1
Cf. the statement of Cromwell above, p. 40.
3. Basic law = every relatively unbreakable norm that may be changed or
violated by conlicting norms only under qualiied prerequisites. See above
p. 18.
4. Basic law = the last uniied principle of political unity and of the entire
order. In this instance, the term is an expression of the absolute concept of
the constitution. See above p. 4.
5. Basic law = every individual principle of state organization (basic
rights, separation of powers, monarchical principle, the so-called representative principle, etc.).
6. Basic law = the last norm for a system of normative attributions. he
normative character stands out here and, above all, the “law” in basic law is
emphasized. See above p. 7.
7. Basic law = every organizational regulation of jurisdiction and procedure for the politically most important state activities. In a federation, this
includes even the setting apart of the rights of the federation from those of
the members.
8. Basic law = every limitation of state power or activity through a normative framework.
9. Basic law = constitution in the positive sense, whereby the so-called
basic law does not have a statutory norm, but rather its essential content is
the political decision (above p. 21). [43]
II. hese diferent meanings are united in a generally diverse form, in
which the one or other side, unbreakable character, unity, order of a principled variety, limitation function, etc., are variously emphasized and can
be put in the foreground. One may generally say that the concept renders
itself relative and pluralistic as soon as the consciousness of political existence undermines itself, while the idea of unity stands out when this consciousness becomes vibrant again. Otherwise, the diferent meanings are
often jumbled together with confusing supericiality.
A widely disseminated textbook of the eighteenth century, Vattel, Droit des gens,
chap. III § 27, thus answers the question, what is a constitution? with the following
statements. A constitution is “the fundamental regulation that determines the type
and manner in which the public authority should be exercised” (that would be only
partly an order function, partly a limitation function). “In it, the form in which the
nation as political body acts becomes visible” (the idea of the represented political
unity); “how and through whom a people should be governed, which are the rights
and duties of the governed” (once again, the partly organizational, partly restrictive
meaning of the constitution). “he Constitution is nothing other than the determination of the order in which a nation sets for itself the goals and advantages of
the political society that are to be achieved together” (Société Politique), etc. In the
nineteenth century, the deinition of the concept of the constitution is made more
diicult by the fact that the ideal concept of the bourgeois Rechtsstaat is lumped
in with the concept of the constitution (above § 4, p. 37). But the diiculties that
stand in the way of a clear distinction are extraordinarily large even independent
of this complication. One could bring up, for example, the “deinition of the basic
laws of the federation,” which was proposed as a supplement in regard to Art. 13 of
the Federal Act of the German Federation. he editorial commission in its report
(Protocol of the 22d Meeting on 16 April 1820) remarked that the concept of a basic
law is “one of the simple concepts mentioned above, which scholastic deinitions
will more likely render obscure than further clariied and strengthened.” In 1819,
however, a federation commission established to provide an expert, authoritative
deinition of this concept suggested: “1. Basic laws of the German state federation
are those contractual provisions which involve the establishment of the federation,
the association of its members, the authoritative deinition of its purpose as well as
of the entirety of the participation of the individual members of the federation in
its exercise. he Federation constitution is formed through these contractual provisions” (there are, therefore, basic laws—plural!—distinct from the constitution).
2. he provisions about organic institutions, “organic” “because through them the
body of the federation received its tools,” so to speak, and “the decisions that for this
purpose the federation understood as enduring, general norms can rightly be attributed to the basic laws.” 3. he remaining federation laws are only negatively determined: there are no basic laws (Klüber, Öfentliches Recht des Teutschen Bundes, 3d
ed., 1831, p. 60). his deinition of the concept also contains several of the diferent
perspectives that are to be distinguished for a clariication of the concepts of basic
law and constitution. Otherwise, the ambiguity of the word “basic” in usages like
basic norm certainly contributes to the arbitrariness of such expressions. A similar
process recurs in regard to the “basic” rights. See below § 14, p. 163.
In the constitutional conlicts of the nineteenth century, the concept of a constitution changes with the political situation and the interests of the conlicting parties.
[44] Overall, the constitution and the limitation of the state through the bourgeois
Rechtsstaat are rendered equivalent, as it is elaborated above in § 4 and even further
in the course of this investigation, in particular in the second section (p. 200f.).
Meanings of the “Basic Law”
95
Rendering the constitution relative by reducing it to individual constitutional law
results in the dissolution of the constitution. his understanding of the constitution
as individual constitutional law still seems dominant in Germany.
III. In the following discussions, the term constitution is used in the
sense of the positive constitutional concept developed above. In particular,
constitution and constitutional law are always strictly distinguished.
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Meanings of the “Basic Law”
§ 6.
Origin of the Constitution
I. A constitution arises either through one-sided political decision of the subject of the constitution-making power or through reciprocal agreement of
several such subjects.
A constitution in the sense of a status identical to the entire condition of the
state arises self-evidently along with the state itself. It is neither issued nor agreed
upon, but it is rather the same as the concrete state in its political unity and social
order. Constitution in the positive sense means the formation of this political unity
by conscious act, through which the unity receives its particular form of existence.
here is a constitutional contract or constitutional agreement when several political
unities and independent bearers of the constitution-making power together reach
such a decision reciprocally deining their political status. (Both expressions “contract” and “agreement” are not distinguished here, although, in fact, the exceptional
quality that Binding and Triepel conferred on the concept of agreement [agreement
as fusion of diferent, substantively equal wills] should not be misconstrued.)
II. Historical overview of the origins of the modern European constitutions.
1. he political situation of the late medieval period (from the thirteenth
until the sixteenth century) is often designated the “state of estates.” Political unity as such had become problematical factually and in terms of
consciousness. he traditional military constitution based on fealty had
dissolved, and vassals became mostly independent. Where estate associations formed (higher aristocracy, gentry, spiritual authorities, the urban
bourgeoisie), these were based on contracts validated through oaths by the
members. hese estates concluded contracts of diverse sorts among themselves and with their own princes, but also with foreign princes. heir contracts with their own princes involved the guarantee of privileges, [45] limitations of princely power, and often even the right of armed resistance. One
cannot denote these countless agreements as constitutions of a state, as it is
in general mistaken to apply concepts of modern public law to such medieval relationships. he actual object of modern constitutions, the type of
existence and form of existence of the political unity, was not the object of
these agreements. In the “state” of estates, one may speak neither of a monarchical nor of a dualistic or pluralistic state; at most one may speak of a
jumble of well-earned rights and privileges. In numerous charters, concessions, letters, etc., a multitude of special interests were “anchored.” he collective appears as a process of dissolution of a previously existing political
unity. Only to this extent is the political unity still presupposed, as it is that
which dissolves itself and at whose cost estate groups and organizations
share in the spoils. he agreements, therefore, establish no political unity
and should also not contain the comprehensive decision. However, because
they limit and control the exercise of princely power, the constitutional aspirations of the nineteenth century were able to attach themselves to them,
and in the constitutional struggles of the nineteenth century it was possible
not only for the princely governments to speak of “estate constitutions,” but
also for the bourgeoisie to often make reference to such estate agreements
and see in them the model of a constitution. his was the case above all in
the small German states.
he English Magna Carta of 15 June 1215 is in particular often deemed the
model and precursor of the modern free constitutions. England’s public law development certainly took a distinctive course, because the medieval feudal masters
and estates (higher aristocracy, knights, and English bourgeoisie) and their representation (the House of Lords and the House of Commons) made the transition
into modern state relations through a gradual and imperceptible development. In
the struggle against the king, the English Parliament appeared as the bearer of the
national, more speciically, of the political unity, while in other European lands it
was the absolute prince who brought about political unity in the struggle against
the medieval estates. In England, medieval ideas and institutions were able to develop into modern state institutions without clearly demarcated changes. Apart
from this, however, the Magna Carta of 1215, considered historically, is only one
of many examples of medieval [46] agreements between prince and feudal master. It is one “stabilimentum” in a document between King John and his barons.
heir legal nature had been understood quite diferently. One designated them as
a statute because they were guaranteed by the king and had the form of a royal
grant, or as a public law contract in the form of a royal award (Stubbs, Constitutional History I, p. 569), or even as a private law contract (Boutmy, Études, p. 40).
According to Anson, it is both a constitutional law and a declaration of rights
as well as a contract between prince and the people! However, as William Sharp
McKechnie (Magna Carta, 2nd ed., Glasgow 1914, p. 104f.) demonstrated, it is
wrong to apply any of these modern public law distinctions to medieval circumstances. he Magna Carta, according to McKechnie, is a stabilimentum, speciically, a settlement or agreement without any precise public law signiicance. he
written form and inclusion of a few expressions of principle, both to the same
limited degree, do not at all prove it was a constitution. he name “Magna Carta”
is not at all explicable historically in reference to the fact that there is a basic law
in the sense of a modern constitution. It is explicable instead in reference to the
opposition to a “Parva Carta” or “Carta foresta” of 1217 concerning a hunting law.
he original name is “Carta libertatum” or “Carta Baronum.” Only centuries later,
in the seventeenth century, through the struggle of the English Parliament against
the absolutism of the Stuarts, did the Magna Carta become the precursor of a
free constitution and was deined in a modern sense. But it would be a historical
error to view the Magna Carta even as something only approaching a modern
free or democratic constitution. When in the Magna Carta certain rights for protection against the misuse of royal authority are guaranteed to every “free man”
(freeman), that is entirely diferent than a modern declaration of human and civil
rights. he “free man” was at that time only the baron, who alone counted as homo
liber or just as homo (McKechnie, p. 115). Historically, therefore, the Magna Carta
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Origin of the Constitution
is only the agreement of the feudal aristocracy with his feudal master, to whom
the aristocracy renew their oath of fealty in exchange for guaranteed rights. he
political efect of this Magna Carta model rests on the mythical idea that particular parties make of it. In terms of their content, the sixty-three chapters in the
Magna Carta involve limitations on the feudal power of the king, limitations of his
judicial authority (no free man may be arrested or imprisoned other than through
a court of his peers or according to the law of the land), restrictions on the law of
rents, and, above all, the initiation of a committee charged with ofering resistance
in the case of the failure to comply with these provisions (cf. Gneist, Englische
Verfassungsgeschichte, p. 240; Richard Schmidt, Allgemeine Staatslehre II, 1903,
p. 490f.).[47]
In terms of form, the Declaration of Rights of 1688 (Bill of Rights) is a contractual settlement between the Prince of Orange, who had been called to the throne
by the English Parliament, and this parliament. In this context, however, parliament appears as the representative of England’s political unity. he Bill of Rights
contains thirteen clauses against the misuse of royal power (no suspension of the
laws through the king; no inheritance of inancial payments on the basis of royal
prerogative; right of petition for subjects; no standing army without the consent of
Parliament; right of Protestant subjects to bear arms; free elections of parliamentary
members; freedom of speech and debate in parliament; cf. Gneist, Englische Verfassungsgeschichte, p. 614f ). One can already speak here of constitutional law provisions in the modern sense because the idea of political unity is already clear and the
agreement between Parliament and king did not at all constitute the unity whereby
the Parliament emerges as the representative of the unity. Instead, this agreement
presupposed the unity.
2. In most European states, political unity was the work of princely absolutism. In the German Reich, however, medieval conditions were preserved
until the end of the Reich in 1806. Moreover, new political unities, states
like Prussia, Bavaria, Württemberg, Saxony, formed in the territories of the
Reich. As a whole, the Reich in the eighteenth century remained only a
heterogeneous composite of still developing political formations and fragments. Hegel best formulated this circumstance in his youthful writing on
“he German Constitution” (1802): “he German state structure is nothing other than the sum of the rights that the individual parts took from
the whole”; its “constitution” and “justice” consists in the fact that one
“carefully guards against any other power remaining for the state” (Hegels
Schriften zur Politik, Lasson edition, pp. 13/14). he question has been discussed since the seventeenth century whether this peculiar conglomerate is
a mixture of state forms (speciically, limited monarchy and aristocracy), a
“status mixtus,” or a system of states, that is, a federal formation. Pufendorf
provided the only possible intellectually honest answer (in the famous treatise “De Statu Imperii Germanici,” published under the name “Severinus de
Monzambano,” 1667, chap. VI § 9, edition of Fritz Salomon, 1910, p. 126):
this formation is an abnormality and is comparable to a “monstrosity.” Considered normatively, it was an ideal case of a Rechtsstaat on the “foundaOrigin of the Constitution
99
tion” of the principle “pacta sunt servanda.” he “constitution” consists of
numerous agreements, contractual privileges [48], concessions, etc., which
were protected judicially through nontransparent procedural possibilities.
he most prestigious and politically powerful estate of the Reich, the electors, reairmed and expanded these rights during every new election of the
Kaiser through new electoral capitulations. Since the seventeenth century,
these electoral contracts and textually ixed electoral conditions were designated leges fundamentales.1 Even the exercise of high political powers,
such as the legal opinions of a prince or other “estates” as prerequisite of
an enforcement action, were ultimately bound to a trial procedure and to
the consent of the other estates. Not once during the notorious breaches
of the peace and open rebellion was the Kaiser permitted to declare an imperial estate in violation without the “conscious support” of the electors. As
Pufendorf rightly explains, the monstrosity of this circumstance is that the
Kaiser cannot burden the estates with anything against their will, but these
estates can certainly obtain every advantage for themselves at the expense
of the Reich and can anchor them in “fundamental laws.”
he demise of Wallenstein in 1634 eliminated the last possibility of creating out
of the German Reich a unity that existed politically on a national level. In 1630,
Wallenstein was already the victim of the enmity of the electors and the estates.
Motivated by confessional concerns and the cause of legitimacy, the Kaiser himself
stood on the side of the estates and, in particular, could not understand the religious
tolerance that would have been the prerequisite of Germany’s state uniication, thus
accepting Wallenstein’s manner of thinking on the issue. he conclusive victory of
the estates’ particular interests over the Kaiser is documented in Ferdinand III’s
electoral concession of December 1636. It states that even in the “most extreme
necessity” the Kaiser was not permitted to raise rents without at least asking the
electors ahead-of-time; even during the notorious breach of peace a trial was necessary to declare the exclusion and facilitate the enforcement action. Even in the most
extreme case of emergency (in extremo necessitatis casu), the Kaiser must consult
the electors (cf. Carl Schmitt, Die Diktatur, pp. 95/96).
3. On the European continent, in Spain, France, and in the German territorial states, the modern state develops by the prince becoming “absolute.” In other words, the modern state develops when the prince sets aside
the well-earned feudal and estate rights and ruptures and eliminates the
principle of the legitimacy of the status quo, on which the feudal condition
rested. [49] he political formations originating in this way were absolute
monarchies. he “absolute” character lies in the fact that the prince is “legibus solutus.” For political reasons, on which he alone decides, the prince has
the authority and capacity to disregard the legitimate demands of the estates and the existing privileges and agreements. he word “state” expresses
the special character of this modern political formation especially aptly because it connotes the linguistic and intellectual connection with the word
“status.” For the comprehensive status of political unity renders relative and
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Origin of the Constitution
absorbs all other status relationships, in particular those of the estates and
the church. he state, or the political status, thus becomes the status in an
absolute sense. his modern state is sovereign; its state authority is indivisible; its closed quality and its impenetrability (impermeableness) follow
from the essence of political unity. In terms of world history, the concept
of sovereignty in particular had a grand function: the overcoming of the
legitimacy of the (feudal and estate-based) status quo at that time.
he irst depiction of modern public law, the Six Books of the State by Bodin
(1577), clearly demonstrated this decisive point. Sovereign is whoever has the highest power, not as civil servant or commissioner, but rather continuously and on their
own authority, that is, by virtue of their own existence. He is bound by divine and
natural law. However, that is not at issue at all in the question of sovereignty. At
issue, rather, is only whether the legitimate status quo should be an insurmountable
hindrance for his political decisions, whether anyone can compel him to be responsible, and who decides in the case of conlict. When the time, place, and individual
circumstances demand it, the sovereign can change and violate statutes. His sovereignty emerges especially clearly in such actions. In his chapter on sovereignty
(Ch. 8, Bk. I), Bodin speaks continuously about ideas such as annulling, squashing, rupturing, dispensing, and eliminating existing statutes and rights. Hobbes
and Pufendorf present this essential perspective with systematic clarity during the
seventeenth century. he question that always arises is quis iudicabit. he sovereign
decides about that which advances the public good and the common use. In what
does the state interest consist when it demands a rupturing or setting-aside of the
existing law? All of these are questions that cannot be settled normatively. hey receive their tangible content through a concrete decision by the sovereign organ.
4. As a mixture of liberal and democratic elements, the modern constitution arises in the French Revolution of 1789. Its intellectual prerequisite is
the theory of the constitution-making power. he state theory of the French
Revolution thus becomes a primary source, not only for the political dogma
of the entire subsequent period (thus Egon Zweig, Die Lehre vom pouvoir
constituant, S.V.), but rather also for the positive legal, juristic construction of modern constitutional theory. he [50] constitution-making power
presupposes the people as a politically existing entity. he word “nation”
denotes in a clear sense a people brought to political consciousness and
capable of acting. Historically, one can say that on the European continent,
these fundamental ideas of political unity and of national determination
arose as a result of the political determination of the absolute monarchy,
while in England the continuous development from a medieval construct to
national unity was made possible because “the insular condition substituted
for a constitution.” France, by contrast, conformed to the classic model of
a modern European state. here the concept of the nation in its public law
meaning was irst understood theoretically. However, in the French Revolution of 1789, two diferent processes and thought systems must be distinguished in constitutional theory terms. First, the French people constitute
Origin of the Constitution
101
themselves as the bearer of the constitution-making power. he people become conscious of their capacity to act politically and provide themselves
a constitution under the presupposition of the existing political unity and
of the capacity to act that is expressly airmed at the same time. he process was so efective and pronounced because the fundamental political
decision rested above all on the French people becoming conscious of their
character as a subject capable of acting and of determining its political
destiny. In a certain sense, the French people constituted themselves. By
giving themselves a constitution, the French people already undertake the
additional act of reaching a decision regarding a particular type and form
of political existence. he people become nation. Put diferently, they become conscious of their political unity. But that does not mean that they
did not previously exist and that they also constituted their state through
the conscious exercise of their constitution-making power. Political being
preceded constitution making. What is not present politically also cannot
consciously decide. Political existence was presupposed in this fundamental process, in which a people acts consciously in a political manner, and
the act through which the people provide themselves a constitution is to be
distinguished from the constituting of the state.
he second meaning of the French Revolution is that it led to a bourgeois constitution of the Rechtsstaat variety, to one, more speciically, that
controls and limits the exercise of state power, thereby giving the French
state a new type of political existence. [51] When the nation as subject of
the constitution-making power opposes the absolute prince and sets aside
princely absolutism, the nation puts itself in the prince’s place just as absolutely. he quality of absoluteness remains in place with power that is unchanged or that is perhaps even heightened, because in the state the people
now identify with themselves in political terms. he political capacity of
this process leads to a heightening of state power, to more intense unity
and indivisibility, unité and indivisibilité. When, on the contrary, the exercise of state power should be regulated, divided, and limited through liberal constitutional laws, this “division of powers” signiies a revocation and
elimination of every type of political absolutism, whether this absolutism is
exercised by an absolute monarch or by the absolute nation that is brought
to political consciousness. he political greatness of the French Revolution lies in the fact that despite all its liberal and Rechtsstaat principles,
the thought of the French people’s political unity did not cease to be the
deciding directive even for a moment. It remains indubitable that all separations, divisions, limitations, and means of controlling state power operate
only inside the framework of political unity. With this unity, however, even
the relative character of all constitutional laws is still indisputable. he con102
Origin of the Constitution
stitution was not a contract between the prince and the people or, indeed,
between some estate organizations, but rather a political decision afecting
the one and indivisible nation determining its own destiny. Every constitution presupposes this unity.
5. During the monarchical restoration (1815–1830), there was an attempt
to revive anew the medieval ideas of a contract, or “Charte,” concluded between the prince and the estates. In some parts of Germany, medieval ideas
and circumstances had remained vibrant. Especially in the midsize and
small states, a distinction had not yet been drawn between the medieval
procedures under feudal and estate-based agreements, on the one hand,
and an act of the constitution-making power, on the other. he counterrevolutionary theory and practice also attempted to make use of medieval
ideas in order to evade the democratic consequences of national unity.
In Art. XIII, the 1815 Vienna federal act of the German Federation established
that in all states of the German Federation “land-based estate constitutions will prevail.” he estate-based constitution in the medieval sense would be juxtaposed here
to the modern idea of the representation of the [52] national unity of the state and
would be used as a counter-concept against the elected popular assembly, which
represents the entire people. he constitutions that correspond to this provision of
the federal act designate themselves sometimes as contracts or agreements. hus,
the constitution of Saxony-Weimar-Eisenach (Karl August) of 5 May 1816 is understood as a “contract between prince and subject.” According to Art. 123, changes
are possible only through mutual contract between the prince and the estates, etc.
Additional examples (Württemberg 1819, Saxony 1831) are found below on p. 64,
where the signiicance of these “constitutions” in constitutional theory terms is considered.
he inner contradiction of such attempts at monarchical restoration
is, on the one hand, that the princes could not conceive of giving up the
state’s political unity in favor of interest representation for the estates. hey
were not permitted to extend a concept such as the “estates” and the statedissolving construction of a constitutional contract consistently to its logical conclusion. “Estate-based” representation, therefore, was not permitted
to have an authorization for political decision making. On the other hand,
however, the representatives must be political representatives (not advocates of estate interests) if estate-based representation is to mean anything
at all for the constitution. Nevertheless, it was not possible for the princes
to recognize these estates as representatives, that is, as representation of
the entire, politically uniied people. For otherwise they would have recognized the people as a political unity capable of action and would have
given up the monarchical principle, according to which only the prince is
the representative of this political unity and thereby uniies the plenitude
of state power in his hands. Both concepts, a constitutional contract concluded with the “estates” and the monarchical principle, were entirely irrecOrigin of the Constitution
103
oncilable. A consequence of the monarchical principle was that the king,
by virtue of the plenitude of his state power, issued a constitution. In other
words, the king as the bearer of the constitution-making power reached
the fundamental political decision that constituted the constitution, but
he did so without giving up the constitution-making power. he constitution, then, was not a contract. Instead, it was a statute issued by the king.
All constitutional legislation of this constitution involved powers that are
limited only in principle. his means they are only competencies, jurisdictions, while the “plenitude of the state power,” which is inseparable from the
political unity and, in principle, unlimited and incapable of being limited,
remained in the hands of the king despite the constitution, if the king did
not renounce state power in favor of the parliament. In politically strong
monarchies, constitutions establishing a constitutional monarchy were
issued on the basis of this monarchical principle. hese constitutions were
not concluded with the popular assembly. hey were imposed. But [53] at
least in Germany, where the constitution had been “agreed” upon, the monarchical principle was not given up at all because of the participation of
the popular assembly in the determination of the text of the constitutional
laws, and the democratic principle of the constitution-making power of the
people was not recognized at all (cf. below § 7, II, p. 65).
he French Charte of 4 June 1814 is the model of a modern monarchical constitution. It was issued, or more accurately imposed, on the basis of the monarchical principle, that is to say, under the king’s constitution-making power. When it
assumed the medieval designation “Charte,” that is characteristic of the internally
contradictory situation of the monarchy then. For estate-based contracts would
have thoroughly contradicted France’s singular and indivisible political unity. In
fact, the “Charte” was based on the constitution-making power of the king, which
had been juxtaposed to the constitution-making power of the people.
6. In the 1830 July Revolution, the political decision was reached in France
whether the king or the people were the subject of the constitution-making
power. he democratic theory of the people’s constitution-making power
conclusively triumphed. he advocates of the liberal Rechtsstaat sought to
evade the alternative, either sovereignty and the king’s constitution-making
power or sovereignty and the people’s constitution-making power, and they
spoke of a “sovereignty of the constitution” (cf. above § 1, II, p. 7). Nonetheless, the question was not answered, only sidestepped and veiled behind
the somewhat occult-like image of the constitution-making power of the
constitution. All subsequent French constitutions and constitutional laws
(1848, 1851, 1875) have the people’s constitution-making power for a prerequisite.
7. In Germany, the revolution of the year 1848 led generally to the socalled constitutional monarchy, more speciically, to a “dualism” (R. Mohl)
of the royal government and the popular assembly, by which both mon104
Origin of the Constitution
arch and popular assembly emerged as representatives of the political unity.
Such a dualism means only that the decision was postponed. Inside every
political unity, there can only be one bearer of the constitution-making
power. Consequently, there is the alternative of either the prince promulgating a constitution on the basis of the monarchical principle from the
plenitude of his state power, or the constitution is based on the act of the
people’s constitution-making power, which is the democratic [54] principle.
Because they are opposed in a fundamental way, both these principles do
not permit themselves to be confused with one another. A compromise,
through which the decision is set back and postponed, is naturally possible
for a time. Both parts, prince and popular assembly, are then agreed that
the decision should be suspended. However, such a compromise is never
quite a genuine, substantive compromise. It is, instead, only the dilatory
formal compromise discussed above (p. 31). In reality, despite all the concealments and evasions, the constitution rested either on the monarchical or the democratic principle, on the constitution-making power of the
prince or that of the people. he “dualism” of these constitutions is unsustainable. Every genuine conlict reveals the simple either/or of the mutually
exclusive principles of political form.
If the prince issues a constitution unilaterally, if it is “imposed,” it undoubtedly rests on the prince’s constitution-making power. If the imposed
form of constitution is avoided for political reasons and the constitution
is concluded between the prince and the popular assembly, there is a dilatory compromise insofar as the prince does not renounce his constitutionmaking power and thereby recognizes the democratic foundation of his
position. More speciically, the prince recognizes the people’s constitutionmaking power. In the German constitutional monarchies, it has naturally
never come to such an acknowledgement of the democratic principle. A
dualistic intermediary condition thus results. heoretically, it was concealed by the fact that it corresponded to liberal ideas, falsely portraying a
“sovereignty of the constitution” and, in this way, evading the core political
question regarding the constitution-making power. In practical terms, that
is, in historical and political reality, this condition of a postponed decision
was possible so long as the inner and external political situation remained
harmonious and calm. In the critical moment, the unresolved conlict and
the necessity of a decision manifested itself. It is not inconceivable that in a
long, gradual development, one principle drives back the other slowly and
without open conlict, as was the case in England. he states of the European continent, however, did not ind themselves in the fortunate position
of an unassailable island, which was enormously enriched by a great colonial realm. [55]
he constitutional monarchy existed in Germany until November 1918.
Origin of the Constitution
105
he favorable political and economic position made it possible to disregard
entirely this decisive alternative as an uninteresting question. What was not
in the “constitution” would be left out of consideration as “not juristic.” At
the same time, the constitution in the above (§ 2, p. 11) outlined manner
was rendered formal and placed at the level of mere constitutional law.
hat passed as “positivism,” although it actually never extended beyond the
stage of the Louis-Philippe period and the liberal doctrinaires associated
with it. his time, indeed, was designated the “epoch of constitutionalism
in its purest form” by so inluential an observer as Lorenz von Stein. Even
after the transformation of 1918, the empty husk of this type of liberalism
sought to conserve itself for a time in Kelsen’s “normative state theory.”
Nonetheless, it was no longer the old liberal belief in the “sovereignty of
reason.” It was, rather, a contradictory position: on the one hand, the sovereign “constitution” and, on the other hand, its dissolution into individual
sets of constitutional norms, which are alterable in a particular process,
thereby rendering the constitution relative. he constitution of the German
constitutional monarchy now certainly contains a Rechtsstaat limitation of
the royal power and displays the dualism of two representatives (prince and
popular assembly) typical of constitutional monarchy. However, the monarchical principle was not set aside in Germany. he powers the constitution grants the popular assembly are limited in principle. he popular
assembly receives certain jurisdictions in the area of legislation, while the
jurisdictional “presupposition” otherwise is in favor of the monarch. Max
von Seydel (Über konstitutionelle und parlamentarische Regierung, 1887,
Abhandlungen, p. 140) gave the best formulation of distinctiveness of this
German style of constitutional monarchy: “he parliamentary king cannot
resort to state power when his parliament fails to function”; on the contrary
the constitutional monarch in Germany “made recourse to state power”
when it came to a serious conlict, more speciically, one that involved the
question of sovereignty and of the constitution-making power. he monarch remained the bearer of the constitution-making power, which is not
to be understood constitutionally and which is unlimited in principle. Because the alternative question, whether the prince or the people had this
constitution-making power [56], was at least not decided in favor of the
people, this power had to for this reason remain with the prince so long
as his political power endured. As in other cases of the suspension of decision, the then-existing status quo was unchanged. In other words, the
monarchical principle remained in place. If then state theory emphasized
that even the prince is only an “organ” of the state and that neither the
prince nor the people but instead the state as an “organism” is sovereign,
this idea corresponded fully to the liberal method that has already been
discussed, the collectivist similarities notwithstanding. he liberal method
106
Origin of the Constitution
evaded the question regarding the subject of the constitution-making
power and the representatives of the political unity that are empowered
to decide and which for this purpose constituted a sovereign third. his
is the case whether or not the “constitution,” which established itself and,
therefore, seemingly fell from heaven, is alone sovereign or whether the
sovereign “organism” is. he theoretical result was the same. In the case of
conlict, however, the political and public law practice shows directly who
was the bearer of state power and the representative of political unity that
decides. It was the king.
During the Prussian conlict between king and provincial assembly, 1862 to 1866,
the royal government took the stand that the constitution does not provide for the
possibility of the provincial assembly’s failure to pass a budget. his case is not regulated and, consequently, the royal government could act freely. he constitution was
said to have a “gap” here, and the king could claim for himself the presupposition
of unlimited jurisdiction. Such “gaps” are always possible, and an essential part of
a constitutional conlict is that one can successfully present claims based on unforeseen circumstances. he uselessness of all normative types of discourse on the
“sovereignty of the constitution” reveals itself here especially clearly. During the
Prussian conlict of 1862, the royal government’s claim regarding a constitutional
gap was not only politically successful. It also had theoretical success. he consensus view of German public law experts (cf. Meyer-Anschütz, p. 906) rejected the
Bismarckian theory. However, they came to the conclusion that the question is not
at all a juristic one. “Public law stops here.” he norms, whose meaning and value
should nevertheless reside precisely in deciding cases of conlict, do not permit one
to draw any answer from them! Consequently, the situation did not change. In the
critical case, the monarch representing political unity could, irst, ind a gap in the
constitution and could, second, decide the issue of illing this gap. he many public
law nuances with which one confused this simple legal situation have lost today
every theoretical and practical value. Nonetheless, it is of special interest historically that the public law of the time ceased to apply precisely where the important
and meaningful questions of constitutional law began.
8. he Constitution of the North German Federation of 26 July 1867 presupposed this constitutional condition in the allied states (the minor exception of the three Hanseatic states is entirely disregarded) [57], as did the
Reich constitution of 16 April 1871. he homogeneity that is part of every
genuine alliance rests irst on the national compatibility of the German
people and then on the comparability of the constitutional circumstances
of the alliance’s member states. he federal constitution is a constitutional
contract of political unities, which uniied themselves into this alliance. An
agreement on the constitution, moreover, was concluded with a popular
assembly, the Reichstag, which is constituted from general elections. On its
legal construction, cf. below § 7, II, p. 64.
9. With the transformation in Germany during November 1918, the
democratic theory of the people’s constitution-making power successfully
established itself in practical terms. heoretically, certainly, constitutional
Origin of the Constitution
107
theory until today (1927) still remains entirely mired in prewar ways of
thought. Liberal constitutionalism, which had proved itself a method of
formalistic evasion when opposed to the king’s constitution-making power,
was certainly at irst only retained out of habit when opposed to constitutional democracy.
(a) In the period of 10 November 1918 until 6 February 1919 (convening of the so-called constitution-making National Assembly), a “council of
people’s delegates” led a provisional government, which included six members, though only ive after December 1918, all under the supervision of the
workers’ and soldiers’ councils. he committees formed under the name
“workers’ and soldiers’ councils” were recognized as the holders of political
power and held it until an assembly elected by the entire people according
to democratic principles convened, in order to pass constitutional laws.
he Reichsgericht’s ruling of 8 July 1920 (RGZ, v. 100, p. 26) decided that according to the historical course of events from 7 November 1918 until 6 February 1919
it “cannot go unrecognized that already on 10 November 1918 a new Reich government had been established, which had its pinnacle in the local substructure of the
workers’ and soldiers’ councils in the council of people’s delegates. he founding
proceeded on a violent path, but it encountered no opposition in the preexisting
Reich authority. . . . hus, the new government established itself without any considerable struggle and maintained itself in this position of power unscathed until it
voluntarily handed over its powers to the National Assembly.” In the judgment of
4 April 1922 (RGZ, v. 104, p. 258, in reference to RGSt, v. 53, p. 65, v. 54 p. 149 and
p. 152), the question “whether Germany formed a ‘republic of councils’ in the irst
months after the Revolution” was left undecided.
his intermediary phase of November 1918 until February 1919 may not
be looked upon as if a new, special [58] constitution of the German Reich
existed for three months and the German Reich, from 9 November 1918 up
until 11 August 1919, would have had three or four constitutions: irst, the
monarchical constitution of the early Reich until 9 November 1918; then, a
council constitution; third, the democratic constitution of the Weimar National Assembly of 10 February 1919; and inally the Weimar Constitution
of 11 August 1919. More precisely, in the previously noted three months
until 6 February 1919, only a provisional government in the sense of democratic constitutional law existed. In every revolution, one such government
must form until the new political decision of the bearer of the constitutionmaking power takes efect. One can designate this intermediary phase
only imprecisely as a new constitution, insofar as a new condition, a new
“status,” emerges through the successful revolution, of course (cf. above
§ 1, p. 5). he workers’ and soldiers’ councils of the previously noted three
months, however, considered themselves only as a provisional government
and voluntarily surrendered their collective power to the National Assembly as soon as it convened.
108
Origin of the Constitution
he workers’ and soldiers’ councils were recognized as the “government.” Under
their supervision, the available state administrative apparatus with its civil servants
continued to conduct business. he existing administrative situation, therefore, was
not abolished and the old “state machine smashed,” as in the year 1793 under the rule
of the Jacobins in France or in 1918 under the Bolsheviks in Russia, in order to establish a fully new organization. he “machine” continued to operate with changed
direction. he council of people’s delegates assumed control. An agreement of 23
November 1918, reached between the executive committee of the workers’ and soldiers’ council of greater Berlin (the provisional representative of the workers’ and
soldiers’ councils of Germany) and the council of the people’s delegates, provided
that political power lies in the hands of the workers’ and soldiers’ councils of the
German socialist republic. It also provided that the Berlin executive committee
should exercise its functions until a delegate assembly of Germany’s councils convenes and that the council of the people’s delegates assumes “executive” functions.
All this is not a constitution or a constitutional pronouncement, as W. Jellinek, Jahrbuch des öfentlichen Rechts, IX, 1920, p. 21, termed it. Rather, it is the legal order
of the provisional government. he decision of the general congress of the workers’
and soldiers’ councils of Germany on 16–18 December 1918 made clear that these
workers’ and soldier councils consider themselves only a provisional government in
the sense of democratic constitutional law.
(b) he National Assembly, which was elected under democratic principles (right to general, equal, direct elections) and convened on 6 February
1919 in Weimar, exercised the German people’s constitution-making power
and formulated the constitutional norms that provided content to the
people’s political decision as well as norms that were necessary for this decision’s execution. [59] he National Assembly was not the subject or bearer
of the constitution-making power. It was only its delegate. Until the issuance of this constitutional law, it was bound by no legal restrictions other
than those resulting from the German people’s comprehensive political decision. Moreover, it was the sole constituted power of the political unity
of the German people. As long as its task, the setting of the constitutional
framework, had not ended, there were no constitutional restrictions on it.
What is often called the provisional Reich Constitution (the law on the provisional Reich authority of 10 February 1919), issued by the National Assembly shortly after it convened, could have been changed and violated at any
time through a simple majority decision of this assembly, as one could with
a mere household provision. In the language characteristic of constitutional
theory under the bourgeois Rechtsstaat, this circumstance of concentrating
all state power resources in a single oice is designated “dictatorship.” he
distinctive position of a “constitution-making” assembly, which convenes
after a revolutionary elimination of the preexisting constitutional laws, is
best designated a “sovereign dictator.” It is only understandable in reference to the fundamental ideas of democratic constitutional law. So long
as the new constitutional law formulation has not yet entered into force,
Origin of the Constitution
109
the assembly acts as the sole constitutional magistrate of political unity
and the only representative of the state. Everything it does is an immediate
consequence of a political power granted it directly, not hemming it in by
separation of powers or constitutional control. Consequently, it can undertake any measures that appear necessary in the present situation without
any limitations other than those it imposes on itself. Such measures are
part of the characteristic content of dictatorship. It has no jurisdiction, no
competence in the actual sense, that is, in the sense of a sphere of oice
regulated and delimited in advance. he scope of its power resources and
its empowerment stands entirely in its own discretion, and this linkage of
empowerment and discretion is a deining characteristic of dictatorship.
However, because there is no framework of constitutional norms, this dictatorship is not commissarial, which means it is not limited through already
existing and formulated constitutional laws. It is, rather, sovereign. Yet, on
the other hand, it remains dictatorship; it is a commission. It is not itself
[60] the sovereign, but instead acts always in the name of and under commission from the people, which can at any time decommission its agents
through a political act. In § 1 of the law on the provisional Reich authority of
10 February 1919, the German National Assembly assigned itself the task “of
deciding on the future Reich constitution as well as on other pressing Reich
laws.” It is noteworthy in this regard that the National Assembly could conclude not only pressing Reich statutes, but could also institute any measure
necessary under the circumstances. he expression “pressing Reich statutes” already demonstrates that considered in terms of content, even these
statutes were in part only conceived as measures. In Germany, nonetheless,
the Rechtsstaat distinction between statutes and measures, which was so
vital in the French Revolution, is confused because of a “formal concept of
statute” and is now entirely forgotten (cf. below & 13, III, p. 146).
(c) he Weimar Constitution of 11 August 1919 entered into force on
14 August 1919. his ended the position of the National Assembly as a
“constitution-making” assembly with the power of a sovereign dictatorship.
here was now still only a Reichstag grounded on the new constitution with
jurisdictional areas that were regulated and limited constitutionally and
were set next to one another in the same constitutional position.
he investigative committee of the Reichstag, installed on 20 August 1919, had
the task of considering all the evidence for purposes of determining the causes of
the outbreak, of the extension, and of the loss of the war as well as the failure to take
advantage of opportunities for peace. he committee already stood under constitutional limitations and could operate only in the context of the powers deined in Art.
34. On this committee, see Erich Kaufmann, Untersuchungsausschuss and Staatsgerichtshof, Berlin 1920, p. 18f.
he Weimar Constitution of 11 August 1919 rests on the constitutionmaking power of the German people. he most important political deci110
Origin of the Constitution
sion is contained in the Preamble, which reads, “he German people gave
itself this Constitution,” and in Art. 1, section 2, asserting that “state power
derives from the people.” hese clauses characterize the positive-legal
foundation of the Weimar Constitution as concrete political decisions.
More speciically, they characterize the constitution-making power of the
German people as a nation, as a unity, in other words, that is conscious of
its political existence and is capable of acting. [61]
Origin of the Constitution
111
§ 7.
he Constitution as Contract
(he Genuine Constitutional Contract)
I. Distinction of the so-called state or social contract from the constitutional
contract.
he numerous state-theory constructions, which ground the state
on a contract, whether merely constituted or historically mediated, and,
through it, attempt to explain its origin legally, are distinguishable from the
agreements or contracts, through which a constitution arises. Both have
often been confused, especially in state-theory debates, which underlie the
American free constitutions and in the utterances of French state theorists and politicians of the 1789 Revolution. One linked a particular type of
constitution with the ideal concept of a constitution (cf. above § 4, p. 38),
then equates this constitution with the state itself and, in this way, viewed
the issuance of a constitution, speciically, the act of a constitution-making
power, as founding, or constituting, the state in general. When a people as
a nation irst become conscious of their capacity to act, that type of confusion and equation of the state itself with the constitution is certainly understandable. Nevertheless, one must insist that a constitution, which rests on
an act of the constitution-making power of the people, must be something
essentially diferent than a social contract, a “Contrat Social.” he democratic principle of the people’s constitution-making power means the constitution is established through an act of the people capable of acting politically. he people must be present and presupposed as political unity, if
it is to be the subject of a constitution-making power. On the contrary, the
constructions of a social, societal, or state contract (the distinctions among
these “contracts” need not be discussed here) serve irst to found the political unity of the people in general. he social contract, consequently, is
already presupposed in the theory of the constitution-making power of the
people when one considers its construction necessary at all. he social contract is not at all identical to the constitution in a positive sense. In other
words, it is not the same as the concrete political decisions that the subject
of the constitution-making power reaches regarding the political unity’s
type and form of existence, [62] much less to the constitutional law rules
based on the execution of the previously mentioned decisions.
Fleiner, Schweizerisches Bundesstaatsrecht, p. 392, is an example of a recent
jumble. “he constitution represents the basic law of state life,” he argues. “It is the
highest norm in the democracy (sic [Schmitt’s]), the foundation of the state, of the
contrat social in Rousseau’s sense.”
1. he constitution of the American state of Massachusetts, drafted by John
Adams, was to a great extent characteristic of this type of constitution and a model
to be emulated (cf. Charles. Borgeaud, Etablissement et Revision des Constitutions,
Paris 1893, p. 23). It states in the preamble: “When the purpose of government is no
longer fulilled, then the people can change its government. Political unity stems
from the voluntary agreement of individuals. It is the result of a social pact through
which the entirety of the people (!) reaches a contract with each citizen, and every
citizen concludes a contract with the entirety of the people, in order to be governed
according to certain rules in the general interest. So it is the duty of the people,
when it establishes a constitution, to provide for both a just mode of legislation as
well as an impartial and reliable exercise and application of the laws.” he entire
body of citizens is presupposed as the political unity.
Even in Rousseau the “Contrat Social” establishing the state is distinguished from
the lois politiques or fondamentales, which regulates the exercise of state power. Cf.
Contrat Social, bk. II, chap. 12. Similarly, during the deliberations of the French National Assembly in 1789, the separation is originally clear, and the confusion of the
contrat social and constitution irst came into play later. Cf. E. Zweig, Die Lehre vom
pouvoir constituant, p. 330; Redslob, Staatstheorien, p. 152f.
In Kant the contract involved in the “establishment of a bourgeois constitution
among the citizens (pactum unionis civilis)” is a distinctive type of general pactum
sociale (through which a group of persons bind themselves to a society). he constituting of the bourgeois society is simultaneously the “erection of a bourgeois constitution.” he constitution is the act through which the unio civilis irst actually arises.
Constitution, therefore, is taken in an absolute sense, not in the positive sense used
here (On the Relation of heory and Practice in Public Law, see the Vorländer edition, p. 86).
A constitutional contract or a constitutional agreement does not establish the
political unity. It presupposes this unity. It is not the “covenant” on which the local
community or the commons rests. his constitutional contract or agreement is instead a “governmental contract” in the widest sense of the term, by which under
“government” is to be understood not only the executive in contrast to the legislative and the judiciary, but also the totality of organized state action as well. In
the language characteristic of natural law state theory, it is not the pactum unionis,
nor is it a pactum subiectionis. In other words, it is not a contract of subordination
under an existing political power, which includes the conditions and limitations for
the exercise of state power that is presupposed and already present.
2. he genuine constitutional contract is also to be distinguished from several
states concluding a contract among themselves, according to which they form a
new uniied state, so that their previous political existence passes into this new state.
Even if the constitution of the new uniied state is concluded under the auspices of
this contract, the continued validity rests not on this contract, but rather on the will
of the constitution-making power of the new uniied state.
II. A genuine constitutional contract presupposes at least two parties
that already exist and will continue to exist, [63] and each of which contains
internally a subject of a constitution-making power. herefore, it is a political unity. A genuine constitutional contract is normally a federal contract.
On the non-genuine constitutional contract inside a political unity, see below
under 2.
he Constitution as Contract
113
he international law contract (subordination contract handled under IV, 4,
p. 73) can be termed a constitutional contract only insofar as it takes the free right
to decide over the type and form of its own political existence of one of the contractual parties to the beneit of the other and, along with this, establishes a constitution
in the positive sense.
A new constitution originates through the federal contract. All members of the federation receive a new political, comprehensive status, so that
the political unity of the federation as such and the political existence of
the federal members exist alongside one another. he distinctive diiculties
and circumstances of the federal constitution are considered in the inal
section of this book. Here, the following must be made clear.
1. he federal contract between several independent political unities is a
genuine constitutional contract.
2. he “constitutional contract” within a political unity. he idea of such
a constitutional contract is explicable only historically from a special circumstance, the “dualism” of the constitutional monarchy. he question regarding the subject of the constitution-making power inside of a political
unity is answered, as was shown above (§ 6, p. 53), in terms of constitutional
theory according to a simple either/or, people or prince, either the people
as unity capable of political action in its conscious identity with itself, or
the prince as representative of the political unity. In the context of one and
the same political unity, the constitution can always only be conferred, not
agreed on, because a genuine constitutional agreement would presuppose
that several political unities are present. From this, it follows that the numerous constitutional agreements that came about during the nineteenth
century in Germany did not solve the question about the subject of the
constitution-making power. hey signiied a compromise, which left the
case of conlict undecided. When a constitution that was unilaterally imposed by the prince, thus not agreed on, provides that the constitution
can be changed “through means of ordinary legislation,” that also signiies
such a compromise. For “by way of [64] legislation” means nothing other
than “participation and consent of the popular assembly.” he constitution in fact does not become a statute thereby, no less than it is a contract.
Even so, the confusion lay not far of, which led to the relativizing of the
constitutional concept that was examined thoroughly above (§ 2, p. 11f.):
constitution equals constitution-amending statute. What it came down to
was always the same: the deinitive participation of the popular assembly.
Obvious contradictions were therefore tolerated without hesitation. he
constitution was a contract. In other words, it should not be imposed, but
rather agreed on by prince and the popular assembly; the constitution was
a statute, as soon as the participation and consent of the popular assembly
to a statute was necessary.
114
he Constitution as Contract
Examples of constitutional “agreements” (which usually did not preclude that
the constitution was, nonetheless, designated as “conferred by the prince”) are the
Württemberg constitution of 25 September 1819, in which “inally, a complete reciprocal agreement over the following points thus came about through the most
elevated commitment and the lowliest counter-declaration.” Also, the Saxon constitution of 4 September 1831, where “hereby is announced that we . . . have established
the constitution of our law, with the advice and consent of the estates, to the following extent.” Often, the constitution is decreed by the prince, but amendment and
interpretation are tied to the agreement of the estates. See, for example, the preface
and Art. 110 of the Grand Duchy of Hesse’s constitution of 17 December 1820. An
example of a constitution issued unilaterally by the prince with the proviso that the
constitution can “be changed by the ordinary means of legislation” is Art. 106 of the
Prussian (imposed) constitution of 31 January 1850.
3. A genuine constitutional agreement was reached at the founding of
the North German Federation and of the German Reich, more speciically,
a federal contract together with a non-genuine, domestic political constitutional agreement, discussed above in section 2. he pronouncement of
26 July 1867 concerning the constitution of the North German Federation
(Bundesgesetzblatt p. 1; Triepel, Quellensammlung, 4th ed., p. 333) states:
“After the constitution of the North German Federation had been agreed
upon by Us (the King of Prussia), his majesty the King of Saxony, his royal
highness the Grand Duke of Hesse, etc., convened with the Reichstag for
this purpose,” etc. In this instance, one must distinguish between the federal contract concluded between the allied states (Prussia, Saxony, Hesse,
etc.) (that is the actual constitutional agreement), on the one hand, and
the agreement reached between the federation and the popular assembly
(a non-genuine constitutional contract). To the extent that so-called contracts existed within the individual member states of the federation, there
were also non-genuine constitutional contracts. [65] he manner of expression typical of the year 1867 naturally no longer had, as had been the case
for some time, the sense of relying on medieval ideas of estate-based contracts. It meant only that the constitution should not be imposed. hat was
a concession to modern ideas, whose result was the previously mentioned
compromise, which, though not genuine, was very reasonable in peaceful
or, indeed, happy times. Under no circumstances should a constitutionmaking power for the German people be recognized. However, that a compromise was at all possible, even if only unclearly and half way, signiies,
for example, a recognition of the constitution-making power of the people,
hence of the democratic principle. he weakness of this contradictory lack
of clarity then manifested itself theoretically in irresolvable problems, such
as that of the relationship of federated (more speciically, genuine contractual) and constitutional law elements in the Reich Constitution. In terms of
practical politics, this weakness revealed itself in critical situations, such as
he Constitution as Contract
115
in the world war since the summer of 1917, as the Reichstag began to gain
inluence on the Reich government.
4. For a federal constitution on a democratic foundation, that is, with
the constitution-making power of the people, a peculiar diiculty results
from the fact that the federation presupposes a deinite similarity among
its members, a substantial homogeneity (below § 30 III). he national similarity of people in the diferent member states of the federation, when the
feeling of national unity is strong enough, easily leads to contradictions with
the ideas of the federal constitution in general. For it lies in the logic of the
democratic principle that the constitution-making power of the people as
a political unity in regard to national similarity and national consciousness
of the people breaks through the limitations of the diferent states within
the federation and substitutes an act of the uniied people’s constitutionmaking power for the federation-like constitutional agreement (below
p. 388).
he constitution of the German Reich of 11 August 1919 rests on one
such act of the German people’s constitution-making power. It is not a contract and, consequently, also not a federal constitution. On the contrary,
the Reich Constitution of 16 April 1871 left the question open, in line with
the compromise on which it rested. Obviously, the inevitable consequence
did not go unnoticed. [66] Bierling ( Juristische Prinzipienlehre, II, Freiburg
1898, p. 356 f.) states especially clearly and openly that in terms of their “legal
efectiveness or validity,” the founding of the North German Federation and
of the German Reich “must be traced back to the direct recognition of the
entire population constituted into a higher community through the act of
founding.” He certainly meant this more in a legal philosophy sense than in
a public law one. his recognition should have been expressed prior to the
elections to the Bundestag, more precisely to the Reichstag. “Certainly,” he
continues, “the formulation of law itself proceeded in forms that, seen from
a particular perspective, appear as matters of law, partly from the standpoint of international law, partly from that of the public law of individual
states. he content of the legal formulation, however, naturally extends far
beyond the established scope of such international law and public law matters of individual states.” hat really means the constitution-making power
of the German people, therefore, democracy. But the agreed-on “allied”
element of the German Reich contained the counterweight to this democratic logic. So until the demise of this Reich Constitution in November
1918, new diferences of opinion and disputes arose over and over between
the Reichstag, on the one hand, and the Bundesrat and Reich Government,
on the other. he Reich Government stressed the federal or alliance foundation of the Reich and presented parliamentarianism (dependence of the
Reich Government on the conidence of the Reichstag) and federalism as
116
he Constitution as Contract
absolute opposites and completely irreconcilable matters. Nevertheless, the
absolute character of these oppositions lay not in the divergence of forms
of organization and institutions. Such a divergence is always only relative
and makes numerous practical combinations possible. Rather, it resides in
the opposition of the monarchical and democratic principle. his opposition involves the constitution-making power, thus the concrete political
decisions over the form of existence of political unity in total. In this context, dilatory compromises, more speciically, postponements and suspensions of decision, are certainly possible, but not a substantive compromise,
which could also transform the unavoidable either/or into a harmonious
as-well-as.
III. he genuine constitutional contract is always a status contract. he
general constitutional contract presupposes several political unities as contractual parties, which, as such, have a political status. In its [67] content
inheres the founding of a new status for all states participating in the agreement.
his contract is a free contract, but only insofar as it rests on the will of
the subjects concluding the contract. It is not a free contract in the sense
of the modern private law concept of a contract and of a liberal bourgeois
social order resting on “freedom of contract.”
1. Distinguishing the free contract from the status contract is necessary because the word “contract” is ambiguous. When a medieval author
grounded state or government on “contract”; a seventeenth-century philosopher like Hobbes used the word “contract”; or, inally, a bourgeois relativist in the twentieth century evaded the traditional ideas that the state
rests on a contract by deining the modern democratic-parliamentary state
as a “compromise”; then these types of diverse ideas are presupposed in the
word “contract” such that it is utterly valueless and purposeless to discuss
it without more precise distinctions or to proclaim principles such as pacta
sunt servanda.
here are three elements of a free contract in the sense of the liberalbourgeois legal and social order. First, the parties of the contract stand
opposite one another as separate individuals in private law relations. A contract between two individuals and a contract between two political unities
is something so essentially diferent that the same designation “contract”
can involve only peripheral and external similarities in both instances. Second, the free contract between individuals establishes individual relations
with content that is in principle deinable, limited, and, thus, cancelable.
hird, the free contract never involves the entirety of a person. It is subject
to cancellation with notiication and to dissolution; the total involvement of
the person as a whole, moreover, appears immoral and contrary to law.
hat is expressed in the statutory provisions of bourgeois law about this “free-
he Constitution as Contract
117
dom,” which had already been proclaimed as a fundamental principle in the French
Revolution (Art. 18 of the Declaration of the Rights of Man of 1793 and Art. 15 of the
Declaration of Year III, 1795). his principle is also recognized in § 624 of the German Civil Code: “If the relations of servitude are entered into for the life of a person
or for a time longer than ive years, it can be terminated by the contractor after the
passage of ive years.” he same idea became law in Art. 1780 of the [French] Code
civil. he connection between “freedom” of the person and the measurability and
limitedness of the service also reveals itself in the details. Cf. E. Jacobi, Grundlehren
[68] des Arbeitsrechts, Leipzig 1927, p. 47 (Enhancement of the degree of subordination through indeterminacy of service). For another example of this connection of
deinability and freedom, see Die Diktatur, p. 37n.
he status contract, by contrast, founds an enduring life relationship that
takes into account the person in his existence and incorporates the person
into a total order, which exists not only in deinable individual relations and
which cannot be set aside through voluntary termination or renunciation.
Examples of such a status contract are engagement and marriage, the establishment of civil servant relationships, and, in other legal orders, vassalage
contracts and covenants (conjurations), etc. he oath is a characteristic sign
of the existential engagement with the entire person. As such, it must disappear from a social order based on free contract.
he direction of historical development proceeds according to the famous formula of H. Sumner Maine (Ancient Law, p. 170), “from Status to Contract.” hat is
essentially the same line that F. Tönnies presented in his great work “Gemeinschaft
und Gesellschaft” as the development from community to society. To this historical
and sociological insight is added only a short remark, through which the high value
of the previously mentioned results should not be diminished, but which nevertheless could perhaps contribute to greater clarity. he juxtaposition of status and contract, community and contract, has something misleading about it because community and status relationships are also established through contract. he social order
of medieval times rested on countless contracts, such as vassalage contracts, estate
contracts, conjurations. In this context, “contract” means status contract; the oath
enhances both the duration of the contracts as well as the existential bond of the
person. he rejection of the vassalage service by Baptists and other sects signiies
the actual beginning of the modern era and of the epoch of free contracts. Werner
Wittich portrayed that in work on the Baptist Church that is unfortunately as yet
unpublished.
here is still not a historical investigation of the development of the contract
concept. One speaks of “contract” indiscriminately. In the historical portrayals of
the theory of the status contract, a continuous line is drawn from Marsilius of Padua
to Rousseau, without any diferentiation within the contract concept. Even Gierke’s
book on this theme, “Althusius” (3rd ed. 1913), sufers from this defect and places a
jurist with still entirely medieval contractual ideas like Althusius alongside Hobbes
and Rousseau without taking into account the fundamental change, which in the
meantime had occurred in the concept.
2. When the constitution comes about through agreement or contract
within an existing political unity, such a contract lacks binding force in regard to the subject of the constitution-making power in cases of conlict.
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A majority of subjects of the constitution-making power would eliminate
and destroy the political unity. Where the process of dissolution sets in,
such “state contracts” arise inside the state. If an estate-based or another
organization succeeds in giving contracts internal to the state the character of constitutional laws [69], it has attained the highest degree of a state
obligation that is still possible without eliminating political unity. However,
if the “state contract” has the sense of bringing about not only the qualiied amendability of constitutional law, but instead even the limitation and
elimination of the constitution-making power, then political unity is destroyed and the state is in a completely abnormal circumstance. All juristic
constructions of this condition are useless. hat was the position of the
German Reich since the sixteenth century (above p. 47). Obviously, such a
process of dissolution can begin anew at any time.
3. If a constitution rests on agreement or contract, then the legal foundation of its validity is the political will of the allied partners and the existence
of the federation that rests on it. he federation is a comprehensive status
that encompasses the status of every member state. Beyond the merely contractual, individual obligation, every member state is altered as an entirety
(on this, see the expositions on the concept of the federation below at § 29,
II 3).
he legal ground of a constitutional contract is not at all the general
principle pacta sunt servanda. Still less is this principle a constitutional
clause or a constitutional law. It is not possible, therefore, to ground a federation or some community on this principle as one could on its “constitution.”
A. Verdross attempted to ground the community of international law on the
principle “pacta sunt servanda” (Die Verfassung der Völkerrechtsgemeinschaft, 1926).
In this principle, he sees the “basic norm,” which should be the “constitution” of this
“community.” Apart from the fact that a constitution is a concrete political decision
(above p. 23), not a norm; overlooking, moreover, the obscurities in the concept of
this “community”; the following is worth mentioning.
(a) he principle “pacta sunt servanda” is not a norm. It is perhaps a basic principle, though not in the sense of a legal rule. Cf. H. Heller, Die Souveränität, 1927,
p. 132, where this distinction of norm and basic principle is treated in an exceptional
critique.
(b) he principle “pacta sunt servanda” states that one can obligate oneself
legally through contracts. Today, that is something self-evident, and it is neither
a norm nor the moral foundation of the validity of norms. It is, moreover, either
a fully tautological duplication and hypostatization, or it states that the concrete
contract is not valid. What is valid, rather, is only the general “norm” that contracts
are valid. If the “norm” that contracts are generally valid is appended to every single
valid contract, then that is an empty iction. For the [70] individual contract is valid
and is legally binding by virtue of positive law and not by virtue of the norm “pacta
sunt servanda.” Such ictional additions and hypostatizations are possible in unlimited numbers. Every norm is valid, because the general norm is valid that there
he Constitution as Contract
119
are norms, which should be valid, etc. hey are entirely meaningless for the establishment of a concrete, existing political unity.
(c) Considered in terms of legal history, the principle “pacta sunt servanda”
had a special meaning so long as it was self-evident that one could obligate oneself
through “pacta.” he turn of phrase “pacta sunt servanda” may trace its historical
origin back to the formula of the Roman Praetor, who could declare that certain
contracts are to be treated as valid in the execution of his oice: “Ait Praetor: Pacta
conventa quae neque dolo malo, neque adversus leges, plebiscita, senatus-consulta,
edicta principum, neque quo fraus cui eorum iat, facta erunt, servabo,” Dig. 2, 14,
1.7 § 7, or “(D)olo malo ait Praetor pactum se non servaturum,” eod. § 9. Cf. Lenel,
Edictum Perpetuum, 3rd ed., 1927, p. 65. In this formulation, the principle has a concrete content. he Praetor presents the agreements, for which he secures protection
and execution through the oicial power to decide. On the contrary, the general
principle “pacta sunt servanda” says nothing about which contracts are valid and
binding, therefore, which of them is to be enforced. It always only repeats the same
principle that valid contracts must be carried out; in other words, they are valid.
(d) he principle “pacta sunt servanda” does not have a value in terms of legal
science, neither theoretically nor practically. hat contracts must be upheld under
the presupposition that they are valid is self-evident. It is just as self-evident, however, that only valid contracts need be upheld and that irst of all a valid contract
must be present. he question always concerns either the presence of a contract,
more speciically, of an efectively genuine agreement of intention in the concrete
case, or grounds for nulliication, elimination, disputation, possibilities for withdrawal, inappropriateness or immorality of the contract, impossibility of its fulillment, unforeseen circumstances, etc. No one would dispute that contracts must be
upheld. he conlict involves only doubt and diferences of opinion over whether in
concreto a contract is present at all, whether this contract is valid, whether special
grounds for invalidity or elimination come into consideration, etc.
(e) In fact, the question is quis iudicabit? Who decides whether there is a valid
contract, whether the grounds to dispute it are persuasive, whether a right to withdraw is provided, etc.? If the question is properly posed in such a manner, it is revealed that the principle “pacta sunt servanda” neither states anything substantive
for a decision and, consequently, has no normative value at all, nor provides for who
decides. An answer to the questions that are solely under consideration is not to be
derived from this principle. [71]
(f ) he value of the principle is thus reduced to the signiicance of a saying that
the traditional notaries public loved to place on the envelopes of their documents
or in their oices. he political sense of the emphasis of such principles, however,
can only be that a supposition tacitly intervenes to the efect that all the currently
concluded contracts are also valid. he “norm” pacta sunt servanda then is one of
the means in the great system of legitimacy of the existing political and economical
status quo. Above all, it stabilizes the existing tribute obligations and gives them the
sanctity of legitimacy and of morality.
IV. 1. Only a federal constitution can arise through contract or agreement,
and only a constitution of those states becoming federation members can
do so. he constitution of an independent state cannot rest on the international law contract of third states. Self-determination inheres in political existence. he constitution in the positive sense is an expression of this
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he Constitution as Contract
possibility of choosing, by virtue of its own decision, the type and form of
its own existence.
When an international law contract regulates the government and administration of a third land, this land becomes the object of foreign agreements and compromises. hat means a denial of political existence. A constitution in the positive sense
is impossible.
he Saar area is not a state. he so-called Saar statute regulates the “government” of the Saar area until the popular vote about and the conclusive decision on
the disposition of the territory by the “League of Nations” occurs (League of Nations
Assembly or Council of the League of Nations?). he League of Nations serves as a
“trustee.” A “governmental commission” with ive members drawn from diferent
nationalities exercises governmental power on the basis of the “Saar Statute” (addition to Art. 49 of the Versailles Treaty). hat is still much less the Saar area’s “constitution” than the colonial legislation of the mother country is the constitution of
the colony. Constitution in the positive sense means essentially deinition of its own
form of existence.
Even the so-called mandate areas, which under Art. 22 of the League of Nations
Charter are ruled and administered by a mandate state, do not have a constitution
in the positive sense. hey are either colonies (B and C mandates) or (the so-called
A mandate) protectorates (below 4) with the exceptional circumstance that there
is an undeined (for the time being still problematical) supervision by the “League
of Nations” (League of Nations Council, Mandate Commission). According to Art.
22, the peoples of these areas are “not yet capable of leading themselves under the
especially diicult conditions of today’s world” (se diriger eux-mêmes; to stand by
themselves [Schmitt’s English rendering]). his also means that they cannot have a
constitution in the positive sense.
2. An international law contract as such is never a constitution in the
positive sense. It can also not be part of the constitution of an independent state. he federal contract (even in the federation of states) is not a
“pure international legal” agreement. On this, cf. below § 30, p. 380. On the
constitutional law guarantee of international legal obligations, see below 5.
[72]
According to Art. 178, 2, the “provisions” of the Treaty of Versailles “should not
be afected by the constitution.” his clause of the Weimar Constitution does not
signify a renunciation of the political existence and right to self-determination of
the German people. It states only that the German Reich does not intend to rely
on constitutional provisions to evade the binding obligations of this treaty under
international law. he political situation of the year 1919 accounts for this express
declaration (on this, see the very interesting piece by Wittmayer, pp. 20/21). Apart
from this fact, it is a generally recognized principle in terms of international law that
a state cannot evade its still valid international legal obligations because of domestic
public law obstacles or lack of capacity. “If there is an undisputed principle of international law, it is this one” (Triepel, Völkerrecht und Landesrecht, 1899, p. 303). he
declaration of Art. 178, 2, of the Weimar Constitution, therefore, does not have an
independent, constitutive content. It would be imprecise to say that the provisions
of the Versailles Treaty have “precedence” over those of the Weimar Constitution.
It would also be simply nonsensical to designate a change in the Versailles Treaty as
a change in the Weimar Constitution and, for example, to demand a constitution-
he Constitution as Contract
121
amending statute for a return of the Saar area to the German government before the
year 1935. A purely international law duty is not part of the constitution in the positive sense. Consequently, an undertaking that is directed at its elimination is never
also high treason in the sense of criminal law. One cannot rely on an international
legal duty of the state to justify treason toward a land. An international law duty is
not airmed through the civil servant’s oath (Art. 176), etc.
When the content of the London Protocols of 16 August 1924 (the so-called Dawes
Plan) became part of Germany’s state legislation through a series of constitutionamending statutes of 30 August 1924, this action had the juridical consequence that
the domestic adjustment to a change of the plan must be by means of a constitutionamending statute (more speciically, brought about through the procedure of Art.
76). In this instance, the “form” of constitutional law is only a technical juridical
means. It would also be incorrect at this point to say that the Dawes Plan is a part
of the German constitution. It is airmed through the civil servants’ oath (Art. 176),
protected through the criminal law provisions against high treason, and, according
to Art. 148, 3, it must be handed out to German schoolchildren at their discharge
from school, etc.
3. If a constitutional provision stipulates that “the generally recognized
rules of international law” should be valid “as binding components” of the
state’s law (Art. 4), that means that for the content of certain international
legal norms the formal reconiguration (transformation) of the state’s law
occurs generally. When speaking of norms here, one means generally recognized rules in particular, above all those of the recognizing state itself,
general norms, not speciic contracts, in other words. he thorough change
or transformation remains the essential process because the legal foundation (“auctoritatis interpositio”) for the validity of the state is thereby created. he transformation is generally only ordered, so far as it is a matter of
the generally recognized rules of international law. hese rules [73] become
generally recognized through state statutory law; they do not become constitutional laws or, indeed, a component of the constitution.
Hugo Preuß considered a provision like Art. 4 an “incorporation of the Reich as
a democratic Rechtsstaat into the international legal community” (according to a
statement reported by A. Verdross, Die Einheit des rechtlichen Weltbildes, Tübingen 1923, p. 111). If the article really had this meaning, the German constitution
would be the constitution of a member state of the federated “international legal
community” and the written law of this federation would be a part of the German
constitution. Obviously, Preuß did not intend to present such a fantastic claim, but
rather only to stress the loyal action of the German Reich toward international law.
he “international legal community” does not at all have the structure that permits
such “incorporation,” as a state is incorporated into a genuine federation. he international legal community is not a stable organization. It is only the relection of
the coexistence of independent political unities (on this, see the theory of the basic
concepts of federation law below at § 29, I, 1). So Preuß’s statement proves very little,
despite its remarkable wording. One is not permitted to conclude from this that the
“general rules of international law” are German constitutional laws, and one cannot
yet correctly speak of the components of the German constitution in the positive
sense. Verdross (Verfassung der Völkerrechtsgemeinschaft, p. 116) speaks of an “an-
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he Constitution as Contract
choring of general international law in the constitution” and claims that because
Art. 4 (just as well as Art. 9 of the Austrian federal constitution, which is essentially
in agreement) is part of the constitution, it could be set aside again only by means of
a constitutional amendment. hat is correct insofar as a constitutional law provision
can be set aside again only through constitutional law. In this way, however, “general international law,” more precisely, the dozen individual, generally recognized
rules of international law, did not become constitutional law of the German Reich.
J. Schmitt, Zeitschrift für badische Verwaltung und Verwaltungsrechtsplege, 1921,
p. 201, and G. A. Walz, Die Abänderung völkerrechtsgemässen Landsrechts (Völkerrechtsfragen, Heft 21, 1927, p. 150), are both incorrect. hey assume that beyond the
transformation-efect of Art. 4 there is still an obligation of the German legislator in
regard to the transformed content. he principles that are viewed as “generally recognized rules of international law” are valid as “Reich law,” nothing more. hey are
Reich statutes like other valid Reich statutes. Correct in this regard are Anschütz,
Kommentar, pp. 49–50, and Giese, Kommentar, pp. 57–58.
4. It can only be a matter of the forms of subordination and dependence
when the comprehensive political status of a state concluding a contract is
determined through an international law contract, which is not a federal
contract (and, consequently, does not change the status of every party concluding the contract in regard to the membership in the federation). he
contract then contains an elimination of the constitution-making power of
the state that became dependent.
Examples of such international law contracts are the protectorate contracts of
the nineteenth and twentieth centuries. However, even intervention contracts with
a right to intervene standing in the discretion of the intervening state change the
status of a political unity when the intervention signiies a decision over existential
political concepts, such as protection of independence from foreign inluence, public security, and order, and when on the basis of the right to intervene the decision
on these concepts is placed in the hand [74] of the state empowered to intervene.
For an example, cf. the agreements between the United States of America and the
Republic of Cuba of 22 May 1903 (Strupp, Documents II, p. 236 f ), on the one hand,
and between the United States with the Republic of Panama of 18 November 1903
(Strupp, p. 346 f ), on the other. See, moreover, the legal and political position of
Haiti, Santo Domingo, Nicaragua, and even Egypt (on the basis of the English Declaration of 28 January 1922).
Art. 102f. of the Versailles Treaty contains another example of the elimination of
the autonomous decision afecting these existential concepts. he principal major
powers founded (constituée) the Free City of Danzig. he Free City constitution was
composed by “representatives called to service through the established process,” in
agreement with a high commissioner of the League of Nations, and it is guaranteed
by the League of Nations. hat is not a constitution in the positive sense, more speciically, not a free decision on the type and form of its own political existence.
Neither the Treaty of Versailles nor the agreements of the London Protocols of
16 August 1924 are international law contracts of this type. As large and pressing as
the burdens of the German Reich are and as immense and destructive as the opportunities for interference by the allied powers, the decision about these existential
concepts is not directly transferred to a foreign power. Even the fact that the incorporation of Austria into the German Reich is made contingent on the consent of the
he Constitution as Contract
123
Council of the League of Nations (Art. 80 of the Versailles Treaty) and that Art. 61,
2, thus becomes temporarily meaningless does not eliminate the political existence
of the German Reich. It is incorrect, therefore, to deny the German Reich the character of a sovereign state, as is the case without a clear concept of sovereignty in the
treatment by H. Gerber, “Die Beschränkung der deutschen Souveränität nach dem
Versailler Vertrage” (Völkerrechtsfragen, Heft 20), Berlin 1927.
5. If the content of certain international legal agreements is taken up into
the constitutional laws of a country by virtue of international legal obligations, that still need not entail an abrogation or even only a diminishment of
the political independence of the state, which thereby guarantees international legal obligations through the public law form of constitutional laws.
It can involve a juridical-technical method of protection against change by
way of simple legislation. he diference between a constitution in the positive sense and individual provisions of constitutional law becomes especially clear here. In terms of public law, the content of these international
legal agreements is protected through qualiied alterability. he form of a
constitutional law serves this purpose. Such provisions, however, are not
acts of a people’s constitution-making power. hey do not eliminate the
sovereignty of a state and, in the interest of an international legal obligation,
only use the relative concept of constitutional law as a formal-technical
means, in order to reinforce the internal state validity.
For example, the international law treaties for the protection of national and religious minorities concluded between the allied and associated principal powers, on
the one hand, and Poland (28 June 1919), Czechoslovakia (10 September 1919), [75]
the Kingdom of Serbo-Croatia (10 September 1919), and middle and east European
states, on the other (additional examples in H. Kraus, Das Recht der Minderheiten,
Stilkes Rechtsbibliothek, vol. 57, Berlin 1927). In these so-called minority protection
treaties, the following provision of Art. 1 is regularly found: Poland (in regard to
Czechoslovakia or the Kingdom of Serbo-Croatia, etc.) obligates itself to recognize
the protective provisions as “basic laws” (lois fondamentales) that no statute, decree, oicial action may oppose or contradict. he same goes for Art. 65 and Art. 73
of the German-Polish agreement on Upper Silesia of 15 May 1922, Reichgesetzesblatt
II, p. 271, 278). In this instance, the word “basic law” has the relative sense of constitutional law.
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he Constitution as Contract
§ 8.
he Constitution-Making Power
I. he constitution-making power is the political will, whose power or authority1 is capable of making the concrete, comprehensive decision over the
type and form of its own political existence. he decision, therefore, deines
the existence of the political [76] unity in toto. he validity of any additional
constitutional rule is derived from the decisions of this will. he decisions
as such are qualitatively diferent from the constitutional norms that are
legislated on their basis.
1. A constitution is not based on a norm, whose justness would be the
foundation of its validity. It is based on a political decision concerning the
type and form of its own being, which stems from its political being. In contrast to any dependence on a normative or abstract justice, the word “will”
denotes the essentially existential character of this ground of validity.
he constitution-making power is political will, more speciically, concrete political being. he general question of legal philosophy, whether, according to its
essence, a law is command, therefore will, or whether it is norm, in other words,
ratio and justice, has deinitive meaning for the concept of law in the sense of the
Rechtsstaat. Cf. below § 13 in this regard. hat the constitution must be understood
as an act of will still does not signify a resolution of this general question. No less
at issue is the traditional and eternal metaphysical dispute, which repeats itself in
the most varied forms in the diverse areas of human thinking, whether something
is good and just, because God wills it, or whether God wills it, because it is good
and just (on this, see a few examples in Gierke, Althusius, p. 14 n.). Independent of
the question of whether the law in general is essentially command or ratio, one may
say that the constitution must be a decision and every act of the constitution-making
power must necessarily be command. It is, as Boutmy (p. 241) puts it, an “acte impératif.”
2. In terms of its content, a constitutional law is the enabling legislation of
the constitution-making will. he comprehensive decision contained in this
will thoroughly provides the constitutional law’s presupposition and foundation. If additional individual norms are written into the “constitution,”
that only has a technical juristic meaning of protection against amendment
through qualiied amendment procedures (cf. above § 2, p. 16).
3. To the same limited degree that an organizational decree exhausts
the organization’s power, which its supreme command and authority [77]
holds, the issuance of a constitution can exhaust, absorb, or consume the
constitution-making power. he constitution-making power is not thereby
expended and eliminated, because it was exercised once. he political decision, which essentially means the constitution, cannot have a reciprocal
efect on its subject and eliminate its political existence. his political will
remains alongside and above the constitution. Every genuine constitutional
conlict, which involves the foundations of the comprehensive political
decision itself, can, consequently, only be decided through the will of the
constitution-making power itself. Also, every gap in the constitution, in
contrast to the lack of clarity in terms of constitutional law and diferences
of opinion in detail, is illed only through an act of the constitution-making
power. Every unforeseen case, whose decision the foundational political
decision efects, is decided by it.
4. he constitution-making power is uniied and indivisible. It is not
a coordinate, additional authority (legislative, executive, judicial; cf. § 14)
alongside other “powers” that are distinguished from one another. It is the
comprehensive foundation of all other “powers” and “divisions of powers.”
hrough the confusion of constitution and constitutional law, another confusion
of constitution-making power with a competence for constitutional law revisions
has emerged, a confusion that frequently leads to the placement of this jurisdiction alongside other “pouvoirs” as “pouvoir constituant.” On this, cf. below § 10 IV,
p. 98.
II. he subject of the constitution-making power.
1. According to the medieval understanding, only God has a potestas
constituens, so far as it is spoken of at all. he clause “All power (or compulsion) is from God” (Non est enim potestas nisi a Deo, Rom. 13:1), means
God’s constituting power. Also, the political literature of the Reformation
period above all adhered to the theory of the Calvinist monarchomachs.2
Althusius, Politica, Ch. XVIII, 93; XIX, 19f. he people in Althusius already have
a potestas constituta. he secularization of the concept of the constituting power
irst emerges later. Under no circumstances may one combine the concepts of a
devout Calvinist like Althusius and those of a romantic deist like Rousseau, as does
Gierke in his famous work on Althusius.
2. During the French Revolution, Sieyès developed the theory of the
people (more precisely of the nation) as the subject of the constitutionmaking power. In the eighteenth century, the absolutist prince had not yet
been designated the subject of the constitution-making [78] power. Yet this
was only because the thought of a free, comprehensive decision reached by
persons with regard to the type and form of their own political existence
was at irst only gradually able to take the form of a political deed. In the
eighteenth century, the afterefects of the Christian theological images of
God’s constituting power, despite all clariication, were still strong and vital.
he American Declaration of Independence and the French Revolution of
1789 signify the beginning of a new epoch, which is not deined by the extent to which the originators of these great precedents were conscious of
the scope of their action. In the American Declaration of Independence
of 1776, the entirely new principle is not yet recognizable with complete
clarity, because a new political formation arose and the act of constitution126
he Constitution-Making Power
making converged with the political founding of a series of new states. It
was quite diferent with the French Revolution of 1789. No new political
formation, no new state arose there. he French state existed prior to it and
continued to exist after it. his case involves people themselves determining the type and form of their own political existence. When the question of
the constitution-making power was consciously posed and answered, the
fundamental novelty of such a process was much clearer. With complete
awareness, a people took its destiny into its hands and reached a free decision on the type and form of its political existence.
hat revealed itself immediately as the Estates General, convened by the
king on 17 June 1789, constituted itself as the constitution-making National
Assembly. he estates constituted themselves without being legitimated
through a formal commission, as the commissioners of the people exercising its constitution-making power and derived their powers from this
constitution-making power. Sieyès formulated the theory of the “pouvoir
constituant” of the nation. He rightly designated it an act of the Revolution
that the Revolution immediately at its inception established the diference
between constitutive and constituted power. Despite the great inluence of
the American model, the year 1789 irst signiies the beginning of the new
political principles.
he American constitutions of the eighteenth century lacked a genuine constitutional theory. he most important historical source for the theoretical foundations
of this constitution, he Federalist [Papers], ofers insight mostly only into practical organizational questions. he people provides itself a [79] constitution without
distinguishing the general “covenant,” which the localities and the society founded,
from every other act of constituting a new political unity and from the act of the free
political decision on the particular form of existence. On this, cf. above § 7 I, p. 61.
According to this new theory, the nation is the subject of the constitutionmaking authority. Nation and people are often treated as equivalent concepts. Nevertheless, the word “nation” is clearer and less prone to misunderstanding. It denotes, speciically, the people as a unity capable of
political action, with the consciousness of its political distinctiveness and
with the will to political existence, while the people not existing as a nation
is somehow only something that belongs together ethnically or culturally,
but it is not necessarily a bonding of men existing politically. he theory of
the people’s constitution-making power presupposes the conscious willing
of political existence, therefore, a nation. Historically, that was irst possible after France had become a state unity through the absolute monarchy,
whose existence had always been presupposed as something self-evident
despite the frequent adoption of new constitutions and changes in the then
existing constitution. In its political existence, the French people irst found
its form as a nation. he conscious decision for a particular type and form of
this existence, the act through which “the people gives itself a constitution,”
he Constitution-Making Power
127
presupposes the state, whose type and form is being determined. However,
for the act itself, for the exercise of this will, there can be no procedural
provisions. his applies no less to the content of the political decision. “It
is suicient that the nation wills it.” his principle of Sieyès portrays the
essence of this process with greater clarity. he constitution-making power
is not bound by legal forms and procedures; it is “always in the state of nature,” when it appears in this capacity, which is inalienable.
All constitutionally constituted powers and competencies are based on
the constitution-making power. However, it can never constitute itself in
terms of constitutional law. he people, the nation, remains the origin of all
political action, the source of all power, which expresses itself in continually
new forms, producing from itself these ever renewing forms and organizations. It does so, however, without ever subordinating itself, its political
existence, to a conclusive formation.
In some of Sieyès’s writings, the “pouvoir constituant” appears in its relationship to every “pouvoirs constitués” as a metaphysical analogy to the “natura naturans” and its relationship to the “natura naturata” of [80] Spinoza’s theory. It is an
inexhaustible source of all forms without taking a form itself, forever producing
new forms out of itself, building all forms, yet doing so without form itself (cf.
die Diktatur, p. 142). But it is necessary to distinguish the positive theory of the
constitution-making power, which inheres in every constitutional theory, from the
aforementioned pantheist metaphysic. hey are in no way identical with one another. he metaphysic of the potesta constituens as well as that of the analogy to the
natura naturans is part of the theory of political theology.
Even the attempt to establish a deinitive representative or interpreter of
the people’s will in some binding manner contradicts this theory. Considered formally, the French National Assembly of 1789 was not a constitutionmaking assembly. Convened by the king, it stemmed from elections to an
assembly of three estates, nobility, clergy, and the third estate, with particular instructions from the voters. hat is not an objection, however, against
its democratic right to constitute itself as constitutive assembly. It could
appeal to the will of the French nation against the king.
Sieyès bound the antidemocratic theory of the representation of the people’s will
through the constitution-making National Assembly with the democratic theory
of the constitution-making power of the people, which directed itself against the
existing absolute monarchy. he constitution was formulated only by the National
Assembly (therefore, neither by the people nor by the king). It would have been consistently democratic to let the people itself decide, for the constitution-making will
of the people cannot be represented without democracy transforming itself into an
aristocracy (cf. below § 15, p. 217). Nonetheless, democracy was not at issue in 1789.
It was, rather, a constitution of a liberal, bourgeois Rechtsstaat. he constitution of
1791 was typical of a constitutional monarchy. he “nation” had two representatives,
king and legislative body (popular assembly). he issue of who represented the nation by the proclamation of the constitution, the National Assembly or the king,
was a clear question of power and already showed the distinctive, characteristic
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intermediary position of the liberal bourgeoisie. In opposition to the king (therefore
the monarchy), there is the appeal to the “will of the nation,” while in opposition to
the people (therefore, the democracy), there is the appeal to the “representative”
institution. Of course, the king could also be representative of the nation, but his
representative capacity in regard to the exercise of the constitution-making power
of the people was called into question. he attempts to provide the king inluence
on the formation of the constitution as representative or interpreter of the people’s
will in the constitution-making assembly were unsuccessful (Redslob, p. 71).
3. During the monarchical restoration, 1815–1830, the king becomes the
subject of the constitution-making power. By virtue of the “monarchical
principle,” the plenitude of state power remains with the king, even if he
binds himself to the consultation of the estates in regard to the exercise of
certain rights in limited scope. he theory of a constitution-making power
of the king had been presented occasionally and without success in the
constitution-making National Assembly of 1789 (Redslob, p. 69). During
the restoration, [81] however, it became theoretically necessary to oppose
a constitution-making power of the king to that of the people, which was
established as a clear thesis of the French Revolution.
For evidence, see Diktatur, p. 195n., and Perny, Le pouvoir constituant sous la
monarchie de Juillet, Pariser thesis 1901, p. 13. E. Zweig, Pouvoir constituant, p. 3,
speaks imprecisely when he states that “political science has delivered no technical
expression of such a type (as constitution-making power of the people)” for the
“organizational hierarchy of the monarch.”
heoretically, moreover, the position of the monarchy was especially dificult. In speciic terms, it is possible to apply the democratic theory of the
people’s constitution-making power without modiication to the monarchy, a hereditary monarchy in particular, only as a defensive move based on
a supericial antithesis. For the nation can change its forms and give itself
continually new forms of political existence. It has the complete freedom
of political self-determination. It can be the “formless formative capacity.”
he hereditary monarchy, by contrast, is an institution that is bound to a
family’s hereditary order of succession and is in itself already formed. A
dynasty cannot be considered, as can the people or nation, the origin of all
political life.
4. Even the organization of a “minority” can be the subject of the
constitution-making power. he state then has the form of an aristocracy or oligarchy. Nevertheless, the expression “minority” is prone to misunderstanding because it derives from the numerical and statistical ideas
of today’s democratic methods and presupposes a minority like that of a
political party. Naturally, an electoral minority cannot be the subject of
the constitution-making power, just as little as a party in today’s sense of a
human association resting on “free competition” could be. Certainly, however, a stable organization as such can reach the fundamental political dehe Constitution-Making Power
129
cisions on the type and form of the political existence. In other words, it
can establish a constitution without appealing to the will of the majority of
state citizens. As in ancient or medieval aristocracies, that can be a circle
of certain families, or an order, or another group that is formed internally.
he nineteenth century does not know such cases of constitution-making
power. In the twentieth century, the rule of the “councils” in Russia in its
connection with the communist organization, as well the rule of the “Fascio”
[82] in Italy, contained elements of a new type of aristocratic forms. But
the theoretical and practical construction is still not at all clear and does
not conclusively renounce appealing to the will of the people, for whose
true and unfalsiied expression the prerequisites should irst be created. Its
regime, therefore, is dictatorship also in the sense that it is only a transition,
and the conclusive decision over the type and form of the political existence
is still to be reached. he only thing conclusively decided is the rejection of
the liberal method of majority decision in secret and equal individual votes
of all separate state citizens as well as of the principles of the bourgeois
Rechtsstaat (basic rights and separation of powers; on these, cf. § 12, p. 126).
Certainly to that extent, there is an act of constitution-making.
III. Initiation of the constitution-making power.
1. here cannot be a regulated procedure, through which the activity of
the constitution-making power would be bound.
2. he activity of the constitution-making power of the monarch regulates itself simply through the fact that the absolute monarchy is an existing
institution. In this instance, there is already a constituted organization. hat
has an advantage, both practically and theoretically, which consists in the
fact that a stable entity is provided, whose expressions of will are clear. he
practical and theoretical weakness, however, is perhaps greater still. For
the organization and institution of the monarchy rests on the monarchical
principle; in other words, it rests on the hereditary succession in a family.
Consequently, it is not actually based at all on distinct political concepts,
but instead on concepts of family law.
he king initiates his constitution-making authority by issuing a constitution out of the plenitude of his power, imposing it through unilateral
action. He can come to an understanding with representatives of the estates
or of the people and commit himself to seek their consultation and consent.
As elaborated above (§ 6, II, 7, p. 53), that still does not require a renunciation of the constitution-making power, nor does it entail recognition of the
people’s constitution-making power.
3. he people initiate their constitution-making power through some
recognizable expression of their direct comprehensive will, which is targeted at a decision on the type and form of the existence of the political
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unity. Special questions and diiculties stem from the distinctiveness of the
subject of this constitution-making power. [83]
(a) he people as bearer of the constitution-making power are not a
stable, organized organ. he people in this capacity would lose their nature,
when they direct themselves to the daily, normal functioning and the regular completion of oicial business. According to their nature, the people are
not a magistrate, and even in a democracy they are never the responsible
oicials. In a democracy, on the other hand, the people must be capable of
making political decisions and acting politically. Even if they have a determinative will only in less deinitive moments and express themselves recognizably, they are nevertheless capable of and in a position for such willing
and are able to say yes or no to the fundamental questions of their political
existence. he strength as well as the weakness of the people lies in the fact
that they are not an organ that is supplied with deined competencies and
that completes oicial business in a regulated process. As long as a people
have the will to political existence, the people are superior to every formation and normative framework. As an entity that is not organized, they also
cannot be dissolved. So long as they exist at all and intend to endure, their
life force and energy is inexhaustible and always capable of inding new
forms of political existence. he weakness is that the people should decide
on the basic questions of their political form and their organization without
themselves being formed or organized. his means their expressions of will
are easily mistaken, misinterpreted, or falsiied. It is part of the directness of
this people’s will that it can be expressed independently of every prescribed
procedure and every prescribed process. In the political praxis of most
countries, the will of the people is determined in a process of secret individual votes or secret elections (cf. below under 3). But it would be an error,
an undemocratic one in particular, to consider these methods of the nineteenth century without further explanation for an absolute and conclusive
norm of democracy. he will of the people to provide themselves a constitution can only be made evident through the act itself and not through observation of a normatively regulated process. Self-evidently, it can also not be
judged by prior constitutional laws or those that were valid until then.
(b) he natural form of the direct expression of a people’s will is the assembled multitude’s declaration of their consent or their disapproval, the
acclamation. In modern, large states, the acclamation, which is a natural
and necessary life expression of every people, has [84] changed its external form. In these states, it expresses itself as “public opinion” (below § 18,
p. 246). However, the people can always say yes or no, consent or reject,
and their yes or no becomes all the more simple and elementary, the more
it is a matter of a fundamental decision on their own existence in its enhe Constitution-Making Power
131
tirety. In times of peaceful order, these types of expression are rare and
unnecessary. hat no special will is perceivably expressed simply signiies
the enduring consent to the existing constitution. In critical times, the no
that directs itself against an existing constitution can be clear and decisive
only as a negation, while the positive will is not as secure. Nevertheless,
often in this negation, there is a direct, independent airmation of a form
of existence, which is contradictory and evident to others. In November
1918, the German people rejected the preexisting monarchical principle.
hat self-evidently signiies a republic. However, this means that the additional formative possibilities of this republic, the bourgeois (constitutional)
democracy of the liberal Rechtsstaat or socialist council republic, were not
yet foreclosed. he no in regard to a republic of the bourgeois Rechtsstaat
variety could once again mean something diferent depending on the circumstances, a return to monarchy, dictatorship, council system, or some
other political form. he people’s constitution-making will always expresses
itself only in a fundamental yes or no and thereby reaches the political decision that constitutes the content of the constitution.
(c) he constitution-making will of the people is an unmediated will. It
exists prior to and above every constitutional procedure. No constitutional
law, not even a constitution, can confer a constitution-making power and
prescribe the form of its initiation. he further execution and formulation
of a political decision reached by the people in unmediated form requires
some organization, a procedure, for which the practice of modern democracy developed certain practices and customs. hese are considered below.
4. In modern democracy, the practice of a democratic national assembly, the so-called constitution-making national assembly, which is elected
according to the basic principles of the general and equal right to vote, developed as an accepted “democratic” procedure. Above all, then, it is followed when the constitution has been eliminated [85] and a new one should
be established. Nevertheless, the convening of a “constitution-making national assembly” is not at all the only conceivable democratic procedure.
In modern democracies, moreover, still other types of the execution and
formulation of the constitution-making popular will emerge.
(a) he national assembly that drafts and passes constitutional legislation is an assembly elected according to fundamental democratic principles. It is specially commissioned for the formulation and legislating of
constitutional provisions, drafts the text of constitutional laws, and passes
them. Constitutional norms that come about in this way enter into force via
the assembly’s majority decisions without a popular vote (referendum) on
the accepted draft taking place, consequently without conirmation by the
state citizens who are entitled to vote.
See, for example, the Weimar Constitution of 11 August 1919 (Art. 181). “he Ger-
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man people,” it reads, “has drafted and passed this constitution through its National
Assembly. It enters into force on the day of its promulgation.” It would be noteworthy in this regard that the National Assembly only drafted the constitutional
formulation and the German people, naturally as the bearer of the constitutionmaking power, cannot be called upon to undertake a formal act, such as the passage
of a statute. his article of the Weimar Constitution, therefore, only means that the
constitutional norm should enter into force on the basis of the majority decision of
the National Assembly without an additional special act of the German people, who
formally give their consent. his consent, moreover, was already expressed in the
election to the National Assembly.
Even the 1791 French constitution entered into force through majority decision
of the constitution-making National Assembly without a plebiscite having taken
place. On the additional peculiarities of the origin of this irst modern constitution
of Europe, cf. below under e.
(b) he assembly (convention) that drafts constitutional norms followed
by a popular vote (referendum) or other express conirmation, direct or indirect, of the drafts by the state citizens with the right to vote.
he word convention is the technical expression for an elected body entrusted
exclusively with the drafting of constitutional legislation. he expression stems from
the English Revolution. he “conventions” of 1660 and 1689 were provisional governments for the production of a proto-constitutional condition (E. Zweig, Pouvoir
constituant, p. 49). hrough the practice of the American states and the famous example of the French National Convention of 1792, the word retained the meaning of
an assembly that produces the draft of the constitutional legislation.
By the decree of 21 September 1792, the French National Convention established
as a basic principle that any constitutional legislation must be conirmed expressly
by the people (“qu’il ne peut y avoir de Constitution que celle qui est acceptée par
le peuple”). Consequently, the constitution of the Convention of 24 June 1793 was
presented to the people for approval, to the nominating assemblies speciically [86].
It was almost unanimously accepted (Duguit-Monnier p. XXXXI). Despite this,
however, it did not enter into force, because the National Convention suspended
the proto-constitutional condition and instituted the dictatorship of the Jacobins (le
gouvernement révolutionaire), during which government was conducted through
measures, not by formal legislative acts, etc. he same National Convention later
concluded another constitution, that of the Year III of 22 August 1795 (the so-called
Directorial Constitution). It was also proposed to the consent of the electors and
was accepted with a great majority (Duguit-Monnier, p. LXII).
(c) Special circumstances at the constitutional convention for a federal
state constitution. In this instance, the constitution can be submitted to the
people of the individual member states for their consent.
he federal constitution of the United States of America of 1787 was drafted by
a constitutional convention. It was then set before the Congress of the assembled
states, which, in turn, recommended its acceptance to the people of the individual
states. Finally, it was accepted in each of the thirteen states through special ratifying
conventions, in other words, assemblies elected exclusively for this purpose. On the
great diiculties of this process and the often very slight accidental majorities, cf.
the portrayal in James Beck, Die Verfassung der Vereinigten Staaten, Ch. XV, German edition by A. Friedmann, 1926, p. 207f.
he Constitution-Making Power
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he Weimar Constitution was not specially ratiied by the enfranchised state citizens of the individual Land governments, also not through the national assemblies
of these Land governments. In the debates on the Weimar Constitution, however,
the Bavarian delegate v. Preger and the deputy Beyerle considered the ratiication
of the Reich Constitution through the individual state national assemblies necessary (Protocol, pp. 24/26). H.Preuß, who, as Poetzsch, Kommentar, p. 11, rightly remarked, had democratic logic on his side, opposed this very decidedly. On this, cf.
above § 7, p. 65, below § 30, p. 388.
(d) General popular vote (plebiscite) on a proposal or a new order and
regulation, both of indeterminate origins.
he practice of the Napoleonic plebiscites was present in the consular constitution of the Year VIII, 1799 (three consuls, among them Napoleon Bonaparte). he
plebiscite was provided for in Art. 95, but before its acceptance the constitution was
already considered as valid constitutional law. he practice of plebiscites was also
present in the Senatus-Consult of the Year XII (1804), with Napoleon as emperor of
the French, and the empire being made hereditary in the Bonaparte family. Similarly
during the Hundred Days of 1815, there was a plebiscite on the “Acte Additionel.”
Note also the plebiscite of 14 December 1851. he President of the Republic, Louis
Napoleon, was commissioned with powers of government under a wide-ranging
delegation of authority for constitutional legislation. Finally, there is the plebiscite
of 21/22 November 1852 on Napoleon III as Emperor of the French.
All these plebiscites resulted in overwhelming majorities voting “yes.” he
Napoleonic government inluenced the election rather strongly and ruthlessly. he
governmental electioneering damaged the prestige of the plebiscite and rendered
it suspicious to democratic sensibilities. heoretically, this method corresponds
thoroughly to the democratic principle and to the idea of the people’s constitutionmaking power. hat during these votes the people responded “yes” to every new
order is explicable incidentally not only in reference to electioneering, but also
from the fact that the French people at the time had no desire other than for civil
peace and order. he majority of state citizens are generally inclined to leave political decisions to others and to respond to questions posed always such that [87] the
answer contains a minimum of decision. Consequently, they will readily consent to
an accomplished fact. During these Napoleonic plebiscites, “no” would have meant
insecurity and disorder, while the “yes” constituted only belated consent to an accomplished fact, therefore, the minimum of its own decision (on this, cf. below the
critique of the principle “majority decides,” § 21, p. 278).
(e) Exceptions and special cases in this democratic practice.
As noted (p. 78), the 1791 French constitution was concluded by a national assembly, which was not selected according to basic democratic principles of the general right to vote, but rather came about because, among the commissioned representatives of the three estates (nobility, clergy, bourgeoisie), those of the third estate
constituted itself as the constitution-making National Assembly on 17 June 1789. In
these questions of democratic constitutional theory, it would be an especially misdirected formalism to deny this irst national assembly the character of a commissioner of the people’s constitution-making power. he will of the French nation was
undoubtedly validated. By contrast, the procedure of a special election or vote has
only relative signiicance.
he constitution of Czecho-Slovakia of 29 February 1920 was not concluded by
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a national assembly selected according to the fundamental principles of the general
right to vote. It was selected by an assembly that was comprised only of party delegates from the Czech and Slovak parties. Of the 13.6 million inhabitants of this state,
almost 5 million, or all non-Slovak inhabitants, in particular the German portions of
the people, were not represented. A ratiication by popular vote did not take place.
(On this “imposed” constitution, see Franz Adler, Die Grundgedanken der tschechoslowakischen Verfassung, Quellen und Studien, edited by the Osteuropa-Institut in
Breslau, “Recht” Department, new series, vol. III, 1927, pp. 10/11, F. Weyr, Jahrbuch
des öfentlichen Rechts XI, 1922, p. 352.)
he Constitution-Making Power
135
§ 9.
Legitimacy of a Constitution
I. Types of constitutional legitimacy. A constitution is legitimate not only as
a factual condition. It is also recognized as a just order, when the power and
authority of the constitution-making power, on whose decision it rests, is
acknowledged. he political decision reached regarding the type and form
of state existence, which constitutes the substance of the constitution, is
valid because the political unity whose constitution is at issue exists and because the subject of the constitution-making power can determine the type
and form of this existence. he decision requires no justiication via an ethical or juristic norm. Instead, it makes sense in terms of political existence.
A norm would not at all be in a position to justify anything here. he special
type of political existence need not and cannot legitimate itself. [88]
Two types of legitimacy, dynastic and democratic, may be distinguished
historically. hese types of legitimacy, in turn, correspond to both subjects
of the constitution-making power, prince and people, which matter historically. Where the idea of authority is predominant, the king’s constitutionmaking power will be recognized; where the democratic idea of the maiestas
populi prevails, the constitution’s validity rests on the people’s will. So one
can speak of constitutional legitimacy only in historical terms and under
the perspective that distinguishes among dynastic and democratic legitimacy. In this regard, it is actually a question of a political unity’s form of
existence.
II. he legitimacy of a constitution does not mean that a constitution
originated according to previously valid constitutional laws. Such an idea
would be thoroughly nonsensical. A constitution does not generally come
into being according to rules that stand above it. Moreover, it is inconceivable that a new constitution, in other words, a new, fundamental political
decision, subordinates itself to an earlier constitution and makes itself dependent on it. Where a new constitution results during the elimination of
the earlier constitution, the new constitution is not “illegitimate,” because
the old one is abolished. Otherwise, indeed, the old, displaced constitution
would continue to be valid. he question of the agreement of the new with
the old constitution thus has nothing to do with the question of legitimacy.
he legitimacy of the Weimar Constitution rests on the German people’s
constitution-making power. hat this constitution came about with the
elimination of the earlier constitution of 1871 could at most lead to its being
considered illegitimate from the standpoint of dynastic legitimacy, the
constitution-making power of the monarch, but no more. Conversely, from
the standpoint of democratic legitimacy, every constitution issued by the
king on the basis of the monarchical principle, every imposed constitution,
is just as illegitimate. However, it is completely impossible to measure a
new constitution by whether it came about by way of the preservation of
prior constitutional rules and formalities, as would be the case, for example,
by posing the question whether the provisions of the Weimar Constitution
arose in line with the procedural rules, which the old Reich Constitution
contained in Art. 78 on constitutional changes. A new constitution cannot
[89] subordinate itself in this way to previous norms that are no longer
valid. And it is a meaningless conceptual game, one stemming only from
a misunderstood need for “normative order,” to even pose the question of
whether in the case of an unquestionably valid new constitution the prescriptions for revision of a currently invalid prior constitution were followed.
W. Burckhardt, “Verfassungs- und Gesetzesrecht,” Politisches Jahrbuch der
Schweizerischen Eidgenossenschaften, vol. XXVI, 1910, p. 48, aptly asks, “Can one
reasonably measure the legality of a new constitution by reference to the prescriptions of its predecessor? hat is the question. If the present constitution is illegal,
because its originators did not adhere to provisions of the prior one, then one must
provisionally ask, whether the previous constitution itself was legal, etc. And when
one ambles back through time and encounters one illegal constitution, would all
others be illegal simply because it was not possible to establish the constitution with
the sanction of the past, even though it derived its justiication for existence from
the present. What sense or purpose would this entire conclusion on the legality
of a constitution have? It would be blowing hot air.” When otherwise Burckhardt
poses and rejects the general question “Can a constitution prescribe in legally binding manner how it should be changed?” (p. 46), this general rejection rests on the
oft-discussed confusion of the constitution in the genuine sense with constitutional
laws. How constitutional laws should be changed can be prescribed through constitutional law.
Unfortunately, expressions such as “legitimacy” or “illegitimacy” are
nevertheless often used in the sense that one intends to designate a constitution as “legitimate” only when it came about in accord with a previously
valid, constitutionally regulated process of constitutional revision.
he Reichsgericht states in its well-known decision, Zivilsachen, vol. 100, p. 25,
that “the new state authority (of the workers’ and soldiers’ councils) created by the
transformation cannot be denied public law recognition. he illegality of its founding is not an argument against it, because the illegality of the founding is not an
essential distinguishing mark of state authority. he state cannot exist without state
power. With the elimination of traditional authority, the newly established authority
sets itself in its place.” hese principles demonstrate directly the meaninglessness
of the question of whether the Weimar Constitution came about “legally” through
the process of Art. 78 of the suspended constitution. hey certainly only speak of
the “state power,” not of the “constitution.” However, they are valid in the properly
understood concept of the constitution even for the Weimar Constitution. herefore, they are also rightly carried over to the Weimar Constitution, as is done in An-
Legitimacy of a Constitution
137
schütz, Kommentar, p. 5, for example. hree things are noteworthy. First, one cannot speak of the legitimacy of a state or of a state authority. A state, or the political
unity of the people, exists in the sphere of the political speciically. he state is as
little able to advance a justiication, such as legality, legitimacy, etc, as the individual
living person must or could justify his existence normatively in the sphere of private
law (cf. Schmitt, “Der Begrif des Politischen,” in Archiv für Sozialwissenschaften,
vol. 58, 1927, p. 1f.). Second, the state and state [90] authority are the same. here
is no state without state authority and no state authority without the state. he replacement of persons, who exercise state power, and the alteration of the state order
do not eliminate the continuity of the political unity. hird, the elimination of the
existing constitution and the issuance of a new constitution involve the question of
the constitution-making power (cf. on this below at § 10). he legitimacy of a constitution also involves this question of the constitution-making power, but not the
question of the agreement with the rules of no longer valid constitutional laws.
he prevalent manner of speaking confuses the constitutionality of a constitution with the permissibility of a constitutional change. Constitutional constitution,
however, is either something entirely senseless or a thoroughly empty banality. If the
constitution itself decides that it is constitutional and is subsequently recognized as
constitutional, it cannot thereby acquire a new capacity. Every valid constitution is
self-evidently constitutional. A norm cannot legitimate itself. Its validity rests on the
existential will of those who issue it. But should “constitutional constitution” only
mean constitutional in the sense of constitutional laws that are no longer valid, the
contradiction is immediately clear. For laws that are no longer valid cannot confer a
valid and legally signiicant capacity.
III. Dynastic legitimacy rests on the authority of the monarch. Since an
individual, isolated person seldom attains this level of political signiicance
through his individual existence, the prince’s constitution-making power
also cannot remain permanently with the individual prince. he prince’s
constitution-making power leads to dynastic legitimacy, which rests on the
historical presence of a family connected with the state, on the continuity
of the dynasty, and on the order of succession.
Democratic legitimacy, by contrast, rests on the idea that the state is the
political unity of a people. he people are the subject of every deinition
of the state; the state is the political status of a people. he type and form
of state existence is determined according to the principle of democratic
legitimacy through the free will of the people.
he people’s constitution-making will is bound to no particular process.
However, it was demonstrated above that the current practice of democratic constitutions elaborated certain methods, whether it is the election
of a constitution-making assembly or it is a popular vote. hese methods
are frequently bound up with the idea of democratic legitimacy, so that
one inserts a certain process into the concept of legitimacy. One only designates as truly democratic such constitutions that have found the consent
of a majority of enfranchised state citizens in the secret ballot procedure.
he extent to which these methods of secret, individual ballots are openly
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Legitimacy of a Constitution
problematic from the perspective of a genuine democracy [91] was already
discussed and will be even more precisely elaborated below. he tacit consent of the people is also always possible and easy to perceive. A conclusive
action is discernible in the mere participation in public life a constitution
provides, for example, an action through which the people’s constitutionmaking will expresses itself clearly enough. hat is valid for the participation in elections, which brings with it a certain political condition.
Bierling, Juristische Prinzipienlehre, 1898, II, pp. 363/64, states that every “imposed legal norm can attain a true legal validity irst through a subsequent recognition by the legal comrades to the same degree that some revolutionary legal establishment can.” It is always “only the general recognition of established norms” that
brings about legality. And, on p. 357, he argues that “the institution of elections to
this already constituted Reichstag (1867) contains a thoroughly clear, advance recognition of the constitution agreed upon by the Reich government with the Reichstag.”
In this way, therefore, the character of democratic legitimacy can be attributed to the most diverse constitutions in that it is based on the people’s
ever-present, active constitution-making power, even if that power is also
only tacit.
Legitimacy of a Constitution
139
§ 10.
Consequences of the heory of the Constitution-Making
Power, of the People’s Constitution-Making Power in Particular
I. Continuous presence (permanence) of the constitution-making power. he
constitution-making power activates itself through the act of the fundamental political decision. Execution and formulation of the decision can
be turned over to special commissioners, such as a so-called constitutionmaking national assembly, for example. Also, a constitutional power for
“changes” or “revisions” of constitutional laws can exist on the basis of the
constitutional norms that arose in this way. But the constitution-making
power itself is distinguishable from this. It cannot be delegated, alienated,
absorbed, or consumed. It remains always present depending on the circumstances. It also stands alongside and above every constitution derived
from it and any valid constitutional provision of this constitution. [92]
Sieyès emphasized the inalienability of the pouvoir constituant of the people. It
is noteworthy that the issue in Sieyès is only the democratic theory of the people’s
constitution-making power, with which one opposed royal absolutism. he people’s
authority for constitution-making can be abolished. When its political existence is
preserved, another subject of this power, for example, a monarch, emerges as bearer
of the constitution–making authority. However, the capacity for constitutionmaking is not extinguished by an act of initiation. Just as little does it rest on some
legal title. When the monarch voluntarily renounces his constitution-making authority and thereby recognizes the people’s power in this regard, this capacity of
the people does not rest at all on the legal title, which would consist in the king’s
renunciation. It has its ground of validity exclusively in its political existence.
he French constitution of 24 June 1793 formulates the democratic principle of
the constitution-making power of the people in Art. 28: “A people always has the
right to revise, to reform, and to change its constitution” (Un peuple a toujours le
droit de révoir, de réformer et de changer sa constitution). his is word for word also
the draft of the Girondist constitution of 1793, Art. 93. his formulation is especially
interesting in that it contains not only the right to constitutional amendment (revisions), but rather also a right to eliminate the constitution.
For reasons of political and juristic convenience, an ever more inluential way of
thinking proceeds from the assumption that a constitution can only be eliminated if
the constitutionally regulated process for changing constitutional laws is observed.
In this instance, the argument, “because what should not be, cannot be,” leads to
consequences that are obviously senseless.
Where the constitution-making power exists, there is also always a
constitutional minimum, which need not be impinged on by statutory
violations of constitutional laws, revolution, and coup d’états, when only
the constitution’s foundation, the constitution-making power, remains,
whether it is of the king or of the people. he practice of the Napoleonic
plebiscite (above § 8, III, 3 d, p. 86) rests on the democratic principle of
the people’s constitution-making power. Constitutional violations could
thus be easily corrected through the consent of the people. Nonetheless,
it is already clear that one must distinguish among the statutory violation
or elimination of constitutional laws, the abolition of the constitution, in
particular the foundational political decisions that comprise it, and the
constitution-making power (of the king or of the people). Under some
circumstances, the revolutionary elimination of a constitution can even
be designated somewhat rightly as mere constitutional change, but naturally only when one presupposes this permanence of the subject of the
constitution-making power.
Hence, in the committee debates on the Weimar Constitution, H. Preuß discusses the fact that the Weimar Constitution, which certainly came about by way of
the revolutionary elimination of the previous Reich Constitution, signiies a “constitutional change.” “We are only undertaking [93] a constitutional change occasioned
by special circumstances and unusual events” (Protocol, p. 28), he points out. hat
is a striking statement from the mouth of an outstanding teacher of public law and
an extraordinary expert on democratic constitutional law. his statement is explicable in reference to the idea that the previously existing German Reich rested on
the will of the German people and, consequently, in fact on its constitution-making
power, even if this idea is not clearly formulated. hen, the new constitution would
have perpetuated this permanent minimum. Anschütz (Kommentar, p. 3) states that
“the Revolution has not destroyed the Reich; it only changed its constitution.” If it
is intended with juristic exactitude, even that claim is only explicable in reference
to the permanence of the German people’s constitution-making power. It would be
certainly more precise to speak here of the elimination of the constitution than of a
change of constitution (cf. below § 11, I, p. 99).
II. Continuity of the state during the elimination and statutory violation
of the constitution, to the extent that only the constitution-making power
remains unchanged.
1. A constitution that originated as an act of the constitution-making
power is derived from this power and can, therefore, not in itself bear the
continuity of the political unity. Constitutional legislation, which rests on
the foundation of this constitution and only signiies the execution of the
ultimate political decision, is even less capable of establishing such a form
of continuity. he political unity as an entirety can continue to exist despite
changes in and changes of the constitution. If a constitution is eliminated
or a constitutional law is violated by statute, that is always unconstitutional
or an unconstitutional law, for a constitutional law cannot violate itself or
eliminate itself under its own power. However, the constitution-making
power need not be abolished in the process. If it activates itself anew in
response to the new condition, the new constitution rests on the same principle as the previous one, which is now eliminated, and it is a product of the
same constitution-making power as this earlier constitution. he continuity
heory of Constitution-Making Power
141
lies in the common foundation, and the question of state continuity can be
posed neither in terms of international law nor public law.
During the French Revolutions and coup d’états of 1848, 1851, 1852, and 1870, it
came down to a change of a constitution by statutory violation or by the elimination
of previously existing constitutions. It did so, however, by retaining and recognizing
the constitution-making power of the French people. he problem of a discontinuity
of the French State was not raised.
2. It is generally recognized that in terms of international law, or law
in relation to other states, the continuity of the political unity is not eliminated in this instance.
he consequence of this continuity in terms of public law is that the previous statutes and decrees, so far as they do not contradict the new regulation [94], are still directly valid without a special act of acceptance (without
reception). Even provisions in previous constitutions can remain in force
from that point on as simple statutes.
he provision of Art. 75 of the French Constitution of Year VIII (1799) on the
consent of the government during judicial prosecution of administrative oicials
thus remains valid, despite any eliminations of constitutions and statutory violations of constitutions that have occurred in the meantime. On this, see EsmeinNézard, pp. 580/81. Under the constitutions of the German constitutional monarchy, which resulted from the Revolution of 1848, there was continuity on the basis
of the monarchical principle. Even in this instance, the previously existing statutes,
cabinet orders, etc., remained valid without special reception.
On the continuity of the German Reich during the transformation of November
1918 and after the Weimar Constitution, cf. below III, 2.
III. he problem of continuity in the change of the subject of the
constitution-making power (constitutional elimination).
1. A revolution can abolish not only constitutional legislation and the
constitution, but also the previous type of constitution-making power,
which is the very foundation of the prior constitution. By means of a democratic revolution, for example, the constitution-making power of the monarch can be eliminated, and through a coup d’état or a monarchical revolution, the constitution-making power of the people can be as well. hen,
there is an exchange of the constitution-making power and a complete annihilation of the constitution.
Some examples are 1789 and 1793 in France (elimination of the king’s absolute
monarchy); and 1917/18 in Russia (elimination of the czarist monarchy).
During such revolutions, the new government challenges the continuity
of the political unity in two important cases.
he Jacobin government of 1793 took the position that a free people need not
pay the debts that a “tyrant” (the previous monarchical government) incurred. During the Genoa conference in May 1922, the Russian Soviet government appealed to
this precedent to renounce payment of czarist Russia’s debts. In the totality of this
question of the fulillment of prior Russian government obligations, the argument of
interest here is the one that touches on the claim that there is no continuity during
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heory of Constitution-Making Power
a change of the constitution-making power. Both cases, 1793 and 1917, may be the
only examples of rejecting continuity.
However, it corresponds precisely to the logic of a democratic constitution to assume continuity even in such cases. For the logically consistent
democratic theory knows no legitimate constitution other than a constitution based on the people’s constitution-making power. [95] herefore, it
is possible to attribute the staying power of any constitution to the express
or tacit will of the people, whatever type of government it is in terms of the
form of the exercise of this will. Otherwise, according to this theory, there is
no state and no political unity. Instead, there is a senseless power apparatus,
a system of despotism and tyranny.
hat is Rousseau’s theory of the “Contrat social.” Indeed, he does not speak of a
special and distinctive constituting power of the people. However, he certainly does
discuss the lois politiques or lois fondamentales, which regulate the relations of the
sovereign (of the people) to the government (bk. II, chap. 12). hese statutes are constitutional laws, and, as such, they are relative. In other words, they are derivative
and limited in principle. hey rest on the sovereign will of the people, and they can
establish a monarchical, aristocratic, or democratic form of government. But the
people always remain sovereign. Even the most absolute monarchy would be only a
governmental form and dependent on the sovereign will of the people.
2. Continuity of the German Reich 1918/19. When a state rests on a national foundation, and when the people has a conscious will to political
existence on the basis of this national unity, it is always possible to treat this
will as the deinitive ground of every state constitution. A subsequent construction of the people’s constitution-making power is easy to ind here. he
German Reich under the 1871 constitution can be considered a state, which
rests on the national will of its people. It was not only an alliance of the
governing member states, but, as Anschütz (Kommentar p. 2) aptly states,
“above all things also the German state as comprehensive state, as national
community.” he German people also had the will to political unity on a
national basis, even if not yet the will to eliminate the monarchical principle and to give itself a constitution exclusively by virtue of its own political decision. hat the constitutional condition as it was since 1871 had the
consent of the German people cannot be disputed after the acclamation of
the war of 1870 and the founding of the Reich of 1871. his constitution was,
indeed, (cf. above § 7, p. 64) even agreed upon by a Reichstag elected by
the German people. he subsequent construction of a democratic foundation is not a iction, therefore, although the German people’s constitutionmaking power was by no means recognized in the constitution of 1871, and
even though the monarchical principle is actually presupposed in the constitutional monarchies of the individual states. [96] his intention of the
German people to achieve political unity on a national basis even remained
present after November 1918 and is suicient to produce, on a democratic
heory of Constitution-Making Power
143
foundation, a continuity between the German Reich under the Weimar
Constitution of 1919 with the Reich under the 1871 constitution.
he question is among the most controversial issues of the public law literature
to date on the Weimar Constitution, although the practical consequences of the
varied responses are not very diferent. hey difer neither in terms of international
law, for the transition of the international law obligations of the traditional Reich to
the new one is not disputed and declared only as succession, or in terms of public
law, for through the transitional statute of 4 March 1919 the domestic legal continuity is expressly decreed. Anschütz, Kommentar, pp. 8, 9, and Stier-Somlo, Grundriß (1924) I, p. 52f., assembled the literature on the disputed question.
(a) he previous distinctions among constitution, constitutional law,
and constitution-making power account for the fact that the revolutionary abolition of the Reich Constitution of 1871 is by itself still no reason to
deny the continuity between the two constitutions. It is also incorrect to
say that every “legal,” constitutional discontinuity simultaneously contains
an elimination of the identity of political unity. he constitutional laws are
valid only on the basis and in the context of the constitution in the positive sense. he constitution, in turn, is valid only on the basis of the will of
the constitution-making power. here can be a discontinuity within each
of these three levels without a state discontinuity resulting. As explained
above, if it is impermissible to judge the legitimacy of a new constitution
according to the norms of the eliminated constitutional laws, it is just
as incorrect to deny the continuity of the German Reich of the Weimar
Constitution, therefore, because the constitution did not come about as a
“constitution-amending statute” in accordance with Art. 78 of the abolished
constitution.
F. Sander, “Das Factum der Revolution und die Kontinuität der Rechtsordnung,”
Zeitschrift für öfentliches Recht, I, 1919, p. 132f.; Rauschenberger, Staatsstreich und
Revolution, 1920, p. 13f.; and Stier-Somlo, Grundriß, I, pp. 53/55, are thus all incorrect.
(b) It is more signiicant when a discontinuity derives from a “conscious
break with the past.” he merit of this argument is the reference to the
change of constitution-making power. he previous constitutional condition rested on the monarchical principle; the new one rests on the German
people’s authority for constitution making. here is not only an elimination
of constitutional laws and a [97] change of the constitution, but there is also
then a change of the constitution-making power.
(c) here is an additional element that permits the change of the
constitution-making power to appear even more clearly. Not only did a
new subject of the constitution-making power emerge, but also an established constitution, instituted through a unilateral act of the entire German
people, was set in place of the previous federal constitution, which, as such,
rested on an agreement among the allied states.
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heory of Constitution-Making Power
In the following authors, the diferent perspectives of b and c are linked, mostly,
however, without any special interest in the essence of the constitution-making
power and without the necessary distinction between constitution and constitutional law. But the linkage of b and c always results in a discontinuity of the old and
new Reich. See Kahl in the committee hearing of 5 March 1919, Protocol, p. 23, and
in the essay “Die drei Reiche,” Festgabe für O. Liebmann, 1920, p. 79f.; Nawiasky,
Bayerische Verfassung, p. 66; Wittmayer, Weimarer Verfassung, p. 4; and Giese,
Kommentar, p. 16.
his justiication would be appropriate, if the question of the constitutionmaking power in the previous constitutional situation would have been decided unambiguously and if the German Reich of the 1871 constitution had
not already have been a form of the national unity of the German people.
In this way, however, it becomes possible that the new, democratic constitution sees in it the singly determinative perspective and that there is a
continuity of the German people and its will to political unity on a national
basis. Consequently, one must respond airmatively to the question of continuity. With the Weimar Constitution, the German people do not intend
to deny its identity with the German people of the 1871 constitution. As
it states in the preamble of the Weimar Constitution, the German people
intend to renew the Reich of 1871, but not found a new Reich. Precisely because it is a democratic constitution, the new constitution does not found a
new German state. It only signiies that a people, which previously believed
itself capable of existing politically solely on the basis of the monarchical
principle, perpetuated its existence by virtue of its own political decision in
the form of a constitution, which it provided itself when the monarchical
principle was displaced.
In the drafting history of the Weimar Constitution, this emerges most clearly in
the statements of F. Naumann and H. Preuß (Protocol, p. 24/25). Preuß even speaks
only of mere change of constitution (cf. above § 10, I, p. 92). On this, see further
K. Beyerle (Protocol, p. 25): “We are perpetuating the old Reich.” E. Vermeil, La Constitution de Weimar, Straßburg 1923, pp. 66, 273, however, praised Wittmayer for the
good democratic attitude he demonstrated through his discontinuity thesis, but he
must nevertheless airm that certainly even the democrats in Weimar wanted continuity. [98]
IV. he distinction of the constitution-making power of the people from
every constituted authority, speciically that based on constitutional law.
1. Every constitutional rule based on the constitution and that proceeds
in the context of constitutional competencies is essentially of a diferent nature than an act of the constitution-making power. Even the constitutional
powers and competencies of the “people,” which is to say the state citizens
entitled to vote, such as, for example, the election of the President according to Art. 73, the election of the Reichstag according to Art. 20, and the
referendum according to Art. 73, are all not powers of the sovereign people,
who give themselves a constitution and engage in acts of the constitutionheory of Constitution-Making Power
145
making power; they are, rather, competencies in the context of the constitution that is already provided.
While the Weimar Constitution is valid, it would be impermissible to
sanction any statute in violation of constitutional laws simply because it
was passed by a popular initiative. According to Art. 73, the people have
only constitutional authority and no powers that are more elevated than
those of the Reichstag. he people are also not made superior to this Reichstag. A statute that comes about by way of the popular initiative under Art.
73 can be eliminated through a statute that results from a simple majority
decision of the Reichstag (Anschütz, Kommentar, p. 224), etc.
2. Above all, it is incorrect to designate the authority, empowered and
regulated on the basis of a constitutional law, to change constitutional provisions, to revise them in other words, as the constitution-making power
or “pouvoir constituant.” Also, like every constitutional authority, the authority to amend or revise constitutional laws (for example, according to
Art. 76) is a statutorily regulated competence. his means it is in principle
bounded. It cannot transcend the framework of constitutional regulation
on which it rests.
On this, cf. below § 11, II, p. 102. herefore, the attempts to equate the “pouvoir
constituant” with this constitutionally regulated authority of revision and to designate that as a “formal concept” of the constitution or of the pouvoir constituant are
incorrect. herein lies the fundamental error of the book by E. Zweig, Die Lehre vom
pouvoir constituant, 1909. he discussion of W. Hildesheimer, Über die Revision
moderner Staatsverfassungen, Tübingen 1918, p. 75, rests on the same error.
3. his distinction persists even in states in which a constitutional statute
can be concluded by way of the simple legislative process [99], as in England
by virtue of the so-called sovereignty of the English Parliament. It would be
incorrect to claim that through a “simple majority decision of Parliament,”
England could be changed into a soviet republic.
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heory of Constitution-Making Power
§ 11.
Concepts Derived from the Concept of the Constitution
(Constitutional Change, Statutory Violation of the
Constitution, Constitutional Suspension, Constitutional
Dispute, High Treason)
I. Overview. he following concepts must be distinguished from one another:
1. constitutional annihilation, which is the simultaneous abolition of the
existing constitution (not only of one or more constitutional laws) and of
the constitution-making power that supports it (cf. above § 10, III);
2. constitutional elimination, or the abolition of the existing constitution, retaining, however, the underlying constitution-making power (on the
change of the constitution, coup d’état, cf. above § 10, II);
3. constitutional change (revision) as a change in the text of previously
valid constitutional laws, which also includes the elimination of individual
constitutional provisions and the reception of individual new constitutional
law directives.
he term constitutional change (constitutional revision) is imprecise because it
does not treat changes of the constitution itself. Instead, it only considers changes
in constitutional law provisions. Nevertheless, the expression is common today, so
it will be retained.
(a) Constitution-disregarding constitutional changes are constitutional
changes that take place without fulillment of the constitutionally prescribed process for such constitutional changes.
(b) Constitution-regarding constitutional changes, deined as constitutional changes occurring through fulillment of the constitutionally envisioned process for such changes or revisions (constitutional revision in the
actual sense).
4. Statutory constitutional violation is the infringement of constitutional
provisions in one or several particular individual cases, but only as exceptions under the presupposition that the [100] violated provisions continue
to be valid. hey are otherwise unchanged, therefore, neither permanently
abrogated nor set aside (suspended) temporarily.
In a formulation apt for the practice of public law under the Weimar Constitution, E. Jacobi made the expression “statutory violation of the constitution” serviceable in scholarly terms for the irst time in his report on the dictatorship of the
Reich President under Art. 48 for the Veröfentlichungen der Vereinigung Deutscher
Staatsrechtslehrer, no. 1, Berlin 1924, p. 109, 118.
(a) Constitution-disregarding violation of the constitution is the exceptional infringement of a constitutional provision without consideration of
the procedure for constitutional amendments.
A state president, for example, dissolves a parliament incapable of acting because of its splintered party composition, although the constitutional provisions do
not provide for this dissolution, or perhaps even (like Art. 68 of the French constitution of 4 November 1848) expressly prohibit it, as with the coup d’état of the
president of the Republic, Louis Napoleon, on 2 December 1851.
An additional example is the extension of the legislative period of a parliament
for a single instance through a simple statute, despite constitutional regulation of
the duration of the legislative period.
(b) Constitution-regarding violation of the constitution is the exceptional infringement of a constitutional provision for one or several particular individual cases, whereby either a constitutional law permits such an exceptional violation (for example, Art. 48, 2, of the Weimar Constitution) or
whereby the procedure prescribed for constitutional amendments is nonetheless observed.
For example, the one-time extension of the legislative period of parliament
through the constitutionally regulated process of a constitutional amendment or
the one-time extension of the term of the President, as was the case with the statute
of 27 October 1922 (Reichgesetzesblatt, p. 801), passed in the form of a constitutionamending statute (according to Art. 76): “he President, elected by the National
Assembly, holds his oice until 30 June 1925.”
5. Constitutional suspension as the temporary setting aside of single or
multiple constitutional provisions.
(a) Constitution-disregarding constitutional suspension is the setting
aside of constitutional provisions without a constitutional regulation providing for this suspension or, for example, with disregard for an available
procedure of suspension.
(b) Constitution-regarding constitutional suspension is the provisional
setting aside of constitutional provisions with the retention of the constitutional provisions providing for such a suspension, for example, according to
Art. 48, 2, p. 2. Setting aside of one, several, or all of the seven basic rights
[101] articles enumerated in this clause: 114, 115, 117, 118, 123, 124, 153.
II. Constitutional changes of the constitution (revision and amendment of
the constitution).
1. Constitutional law can stipulate that diferent oices have the authority
to make a change in constitutional law provisions, and constitutional law
can regulate these changes as well.
(a) An assembly convened exclusively for this purpose, which only has
the task of concluding such a constitutional amendment.
For example, Art. 8 of the French Constitutional Law of 25 February 1875. Both
legislative chambers (Chamber of Deputies and the Senate) uniied themselves into
one National Assembly, an “assemblée nationale,” when a constitutional provision
should be revised. Such a constitution-amending national assembly is to be distinguished from a constitution-making national assembly that convenes after a revolution (more speciically, after an annihilation or elimination of a constitution) and is
the bearer of a sovereign dictatorship.
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he Concept of the Constitution
Art. V of the American federal constitution of 1787. he Congress (House of Representatives and the Senate) is required to call a convention when two-thirds of both
houses consider the proposition of a constitutional amendment necessary or when
the legislative bodies of two-thirds of the individual states petition it. Constitutional
changes are possible if they are ratiied by the legislative bodies of three-fourths of
the individual states or by the conventions in three-fourths of these states (always
after the Congress has suggested the one or the other type of ratiication).
(b) Legislative bodies by way of legislation (with or without special
hurdles), however with ratiication of the enfranchised state citizens by an
obligatory popular vote (referendum).
Federal constitution of the Swiss Association of 29 May 1874, Art. 118, provides
that the federal constitution can be revised, entirely or in part, at any time. Art. 119
stipulates that complete revision of the federal constitution occurs by way of federal
legislation. Regarding the altered portion, according to Art. 123, the revised federal
constitution enters into force when it is accepted by the majority of the citizens participating in the vote and by a majority of the cantons (referendum combined with
ratiication through the cantons).
On the sense of the words “by way of legislation,” cf. above § 7, p. 63.
(c) Legislative bodies by way of legislation without the obligatory conirmation through a popular vote, but under qualiied conditions (such as
qualiied majority, repeated concluding draft, etc.).
Art. 76 of the Weimar Constitution: “he Constitution can be changed by way of
legislation. However, decisions of the Reichstag regarding amendment of the Constitution only come about when two-thirds of the statutorily mandated quorum are
present and at least two-thirds of those present consent.” Also in the Reichsrat, a
two-thirds majority is required for constitutional changes. As noted, [102] the word
“Constitution” in the text of Art. 76 is imprecise, and it would correctly read “constitutional laws.”
(d) In a federal constitution, the federal legislative procedure for changes
in constitutional laws can replace a contractual change of the federal contract itself. Where there is this possibility of a change in the federal constitution, the federation already distances itself from its federated foundation
and develops itself into a unitary state. During this transition phase, the
federated character can be preserved by the fact that the conirmation of
a majority of states, simple or qualiied, is needed for the change or that a
minority can block the change.
Some examples are Art. V of the American federal constitution of 1777 [sic],
above under a. Art. 123 of the Swiss federal constitution of 1874, above under b.
Art. 78a of the 1871 Reich Constitution, under which “amendments of the constitution are the product of legislation. hey count as rejected when they have fourteen
votes against them in the Bundesrat.” his provision of the Bismarckian constitution irst airmed a so-called “competence for competencies” of the federation.1
Second, it recognized the Reichstag’s right to participate in legislation, in particular
even its right of initiative according to Art. 23a. On this, cf. Seydel, Kommentar,
pp. 412/13.
he Concept of the Constitution
149
2. Boundaries of the authority for constitutional amendments.
If the procedure for a constitutional amendment is regulated constitutionally, this establishes a jurisdiction (competence) that is not self-evident.
he constitutionally regulated jurisdiction of legislative bodies to issue
statutes through the constitutionally regulated process, which is the simple
legislative competence, does not in the least also establish for the legislative
body alone any jurisdiction to change constitutional provisions, more speciically, to change the basis of this competence. he jurisdiction for constitutional amendment is not a normal jurisdiction in the sense of a competence, in other words, of a regulated and bounded set of tasks. For changing
constitutional laws is not a normal state function like establishing statutes,
conducting trials, undertaking administrative acts, etc. It is an extraordinary authority. As such, however, it is not thoroughly unlimited, for it remains an authority that is constitutionally shared. Like every constitutional
authority, it is limited, and, in this sense, it is a genuine competence. In the
context of a constitutional regulation, there can be no unlimited authority,
and every jurisdiction is bounded. Even a “competence-competence” can
be nothing without limits, if the expression is not to become meaningless
and the concept of competence is not to dissolve altogether. When understood properly, competence-competence is [103] something other than
sovereignty, which had been often confused in the public law literature of
the prewar era.
he structural peculiarities of a federation, in which constitutional principles
from a federal and unitary state, but also those from monarchical and democratic ones, were linked (cf. below § 30, p. 386), accounts for the controversy over
competence-competence of the Reich. On this, see Haenel, Staatsrecht, p. 774f.
he boundaries of the authority for constitutional amendments result
from the properly understood concept of constitutional change. he authority to “amend the constitution,” granted by constitutional legislation,
means that other constitutional provisions can substitute for individual or
multiple ones. hey may do so, however, only under the presupposition that
the identity and continuity of the constitution as an entirety is preserved.
his means the authority for constitutional amendment contains only the
grant of authority to undertake changes, additions, extensions, deletions,
etc., in constitutional provisions that preserve the constitution itself. It is
not the authority to establish a new constitution, nor is it the authority to
change the particular basis of this jurisdiction for constitutional revisions.
For example, it is not permissible to use the qualiied majority procedure of
Art. 76 to change Art. 76 such that constitutional amendments are undertaken through simple majority decisions of the Reichstag.
(a) Constitutional amendment, therefore, is not constitutional annihilation (above I, 1).
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he Concept of the Constitution
he oices with jurisdiction over a decision on a constitution-amending
statute do not thereby become the bearer or subject of the constitutionmaking power. hey are also not commissioned with the ongoing exercise of this constitution-making power. hey are not, for example, a latent,
always present constitution-making national assembly with the powers of
sovereign dictatorship. A constitutional amendment that transforms a state
resting on the monarchical principle into one ruled by the constitutionmaking power of the people is not at all constitutional. When one occasionally engages in discussions over what constitutes the “juridical” component of the system, in order to transform the old Reich Constitution by
legal means into a modern democracy at the beginning of November 1918,
then that is a meaningless game, as elaborated above and as also deduced
from the correct concept of constitutional amendment. By legal means, this
constitution could not at all be transformed into a democratic one. he
voluntary renunciation of the [104] monarchical principle by the monarch
would have only signiied a renunciation of the conlict and would have
facilitated a peaceful exchange of the constitution-making power. But the
new subject of the constitution-making power would not have become the
legal successor of the monarch, because in this sphere there cannot be a
legal succession at all. It is exactly the same in the opposite case. A constitution resting on the constitution-making power of the people cannot be
transformed into a constitution of the monarchical principle by way of a
constitutional “amendment” or “revision.” hat would not be constitutional
change. It would be instead constitutional annihilation.
Democratic principles require a special act of the people’s constitution-making
power for the monarchy to be reintroduced under the Weimar Constitution. his
is the case whether this change results from a decision of a “constitution-making”
national assembly or from a special plebiscite, which in the context of the Weimar
Constitution would be distinguishable from a referendum according to Art. 73. he
new monarchy, however, would then rely on the constitution-making power of the
people. It would not be a state form and a restoration of the monarchical principle,
but rather only a governmental form. he restoration of the monarchical principle
could only be achieved through a constitutional annihilation. In this context, the
procedure of Art. 76 does not come into question at all. With the help of Art. 76, the
principle of Art. 1, 1, “the German Reich is a republic,” can in no way be transformed
into the principle “the German Reich is a hereditary monarchy under the hereditary
line of succession of the family Hohenzollern.” It would be another, psychological
question whether perhaps the German people, whose need for the appearance of
legality is stronger than its political sense, would sooner accept an elimination of
the prior constitution carried out by way of Art. 76 than an attempted constitutional
annihilation via a putsch or revolution.
(b) Constitutional amendment is not an elimination of the constitution
(above I, 2). Even if the constitution-making power is preserved, another
political decision may not substitute for fundamental political decisions
he Concept of the Constitution
151
that constitute the constitution (in contrast to constitutional law rules). he
democratic right to vote, for example, could not be replaced by a council
system under Art. 76. he federalist elements, which are today still retained
in the constitution, could not simply be eliminated according to Art. 76,
so that in a single stroke the German Reich would be transformed into a
unitary state by a “constitution-amending statute.” “By means of Art. 76,” it
is not only politically, but also constitutionally impossible, simply to eliminate Bavaria or to declare Prussia a land of the Reich against its will. he
position of the President, for example, could also not be transformed into
that of a monarch through a “revision” of Art. 1, 1, or Art. 41 [105], etc.
he fundamental political decisions of the constitution are a matter for the
constitution-making power of the German people and are not part of the
jurisdiction of the organs authorized to make constitutional changes and
revisions. Such amendments bring about a change of constitution, not a
constitutional revision.
Even if a complete revision of the constitution is being considered, then the just
elaborated distinction must be respected and the resulting limits of the authority
of revision are to be fulilled. Despite the term “total revision,” that is recognizable
in the wording of the constitutional rule through closer consideration of the constitutional provisions permitting such a total revision. he French constitution of
4 November 1848 provided in Art. 111, for example, that the constitution could be
changed (modiié), and, indeed, “entirely or partially” (en tout ou en partie). It regulates the procedure for this revision. No interpretation of the letter of the provision
could lend the word “en tout” the meaning that by legal means of constitutional
revision a monarchical constitution of the Napoleonic style, for example, however
new, could have been established. For in its preamble (préambule) the same constitution of 4 November 1848 deinitively proclaimed a republic for the state form of
France, declared in its Art. 1 that sovereignty resides with the entirety of the French
state citizens, that it is inalienable and inexhaustible, and that no individual and no
part of the people could claim its exercise, etc. Art. V of the United States Constitution provides for amendments. However, it also provides that “no state may be
deprived of an equal vote in the Senate without its consent,” from which it selfevidently follows that it irst of all may not be justly deprived of its independent
existence. According to Art. 118 of the Swiss federal constitution, a “total revision”
is possible at any time. Fleiner, Schweizerisches Bundesstaatsrecht, p. 396f., does
not deine this concept more precisely and only says that under a partial revision,
one understands “the issuance of a new or the abrogation or alteration of an existing individual article of the federal constitution.” It is uncertain to what extent the
total revision under the Swiss federal constitution can produce a completely new
constitution (that is, a change of the political decision over the type and form of
state existence), because the Swiss constitution is purely democratic and because
even in a “total revision” one cannot seriously be thinking of an elimination of this
democratic foundation or of the democratic state.
If a particular constitutional change is prohibited by an explicit constitutional provision, it is only a matter of a conirmation of the distinction of
constitutional revision and the elimination of the constitution.
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he Concept of the Constitution
Take, for example, Art. 2 of the French constitutional statute of 14 August 1884:
“La forme républicaine du Gouvernement ne peut faire l’objet d’une proposition de
revision.”
hat is even the case when constitutional changes ofending the spirit or
the principles of the constitution are expressly prohibited.
For example, § 112 of the Norwegian constitution of 17 May 1814 reads: “When
experience shows that some part of the present constitution [106] (‘constitution’ =
‘basic lot’ in the French collection of Laferrière-Batbie, p. 391, with ‘loi fondamentale’ rendered as ‘constitution’ in an oicial translation made available to me by the
esteemed colleague Dr. Wolgast) of the Kingdom of Norway must be modiied, then
. . . (the procedure follows). However, such a change (in the French text ‘changement,’ in the oicial translation ‘amendment’) may never contradict the principles
of the present constitution; it may only modify particular individual dictates without changing the spirit of the present constitution” (certaines dispositions qui n’en
altèrent pas l’esprit). Cf. on this Wolgast, “Die richterliche Prüfungszuständigkeit in
Norwegen,” Hirths Annalen 1922/23, p. 330f. he prevailing view in Norway (Morgenstierne) appears to accept a competence for judicial review even in regard to
the statutes coming about via § 112. On the constitutional amendment of 1913 (after
which constitutional changes were concluded by parliament, the Storting, without
participation of the king), see F. Castberg, “Die verfassungsrechtliche Gesetzgebung
in Norwegen in den Jahren 1914–1921,” Jahrbuch des öfentlichen Rechts XI, 1922,
p. 227; also Morgenstierne, Jahrbuch des öfentlichen Rechts VIII, 1914, p. 373f., and
Erich, “Studien über das Wesen und die Zukunft der monarchischen Staatsform,”
Blätter für vergleichende Rechtswissenschaft, 1918, 184f. In a provision like this § 112,
it is otherwise also clear that the article itself cannot be eliminated by way of the
procedure for constitutional revision.
he question of the boundaries of the authority for constitutional
amendments or revisions has hardly been handled yet in constitutional
theory. A noteworthy exception is the essay by William L. Marbury titled
“he limitation upon the amending Power,” in Harvard Law Review 33,
1919/20, p. 223f., where it is rightly claimed that the authority to alter and
extend the constitution cannot be boundless and has not been conferred, in
order to eliminate the constitution itself.
he author of this essay relies on the fact that Art. V of the American federal constitution already contains a boundary for the authority of revision, because according to this article no individual state may be deprived of its equal voting rights in the
Senate without its consent. he essay has set for itself the practical goal of initiating
the review of the permissibility of the Eighteenth Amendment of 1919 (prohibition
of the manufacture, sale, facilitation of the importation and exportation of intoxicating liquors) by the United States Supreme Court. his constitutional change had
come about in the process prescribed for a constitutional amendment. To review
its validity meant determining the substantive boundaries of the amendment authority. he Supreme Court, however, did not undertake such a review, and the previously mentioned essay did not achieve its practical goal. But one cannot say that
the attempt remained unsuccessful and meaningless. On this, cf. the presentation in
Eduard Lambert, Le Gouvernement des juges, Paris 1921, p. 112f. he core thought
of the essay is also correct and will sooner or later show its practical signiicance. It
he Concept of the Constitution
153
demonstrates, more speciically, that the authority for constitutional amendments
conferred by the constitution is in principle limited and that the constitution itself
as a foundation must remain inviolate. It also shows that it is a misuse of the amendment competence to issue ordinary statutes by way of the amendment procedure
and, in this way, to guard against changes.
(c) Constitutional amendment is not a statutory violation of the constitution (above I, 4). A statutory violation of the constitution [107] does not
alter the constitutional norm. Rather, it constitutes an individual order that
deviates from the norm in a single instance while preserving the general
validity of the norm in other cases. his does not constitute a change of the
constitutional law. It is simply presupposed that the constitutional law in
question continues to be valid. Such statutory violations of the constitution
are in essence measures, not norms. Hence, they are not laws in the Rechtsstaat sense of the word and, consequently, also not constitutional laws.
heir necessity derives from the special condition of the individual case or
from an unforeseen abnormal situation. When in the interest of the political existence of the whole such statutory violations and measures are used,
the superiority of the existential element over the merely normative one
reveals itself. Whoever is authorized to take such actions and is capable of
doing so, acts in a sovereign manner. Since the sixteenth century, therefore,
the question regarding sovereignty and “absolutism,” considered in legal
history terms, involved a statutory rupture of the existing legitimate order.
he prince was “legibus solutus.” In other words, according to prevailing
conditions and without being hindered by limitations of valid laws and contracts, he was authorized and in a position to undertake the necessary measures in the interest of political existence. On this point, Gierke (Althusius,
p. 281) states that “it was naturally agreed that the legislature could change
and abrogate as well as establish norms in the same degree. Since the beginning of the sixteenth century, however, a lively controversy arose over
whether up until the eventual elimination the legislature is bound or not by
its own laws or by those of its predecessor.” he lawmaker as legislator can
only establish statutes, not violate them. he question did not involve lawmaking, but rather sovereignty, or the existential superiority over the norm.
Even for the modern Rechtsstaat, these statutory ruptures are the criterion
of sovereignty. he diiculty lies in the fact that the bourgeois Rechtsstaat
takes its point of departure from the idea of being able to comprehend and
to limit the entire exercise of all state power without exception in written laws. In this way, political action of any given subject, whether it is the
absolute monarch or the people come to political self-consciousness, even
sovereignty itself, is no longer possible. Instead, a diverse range of ictions
must be set up, such as that there is no longer any sovereignty at all, or,
what is the same thing, that the “constitution,” [108] more precisely, con154
he Concept of the Constitution
stitutional norms, are sovereign, etc. (cf. above § 1, II, p. 8). In reality, however, it is precisely the essential political decisions, which elude normative
deinition. he iction of the absolute normative quality then has no consequence other than that such a fundamental question like the one regarding
sovereignty is left unclear. For the inevitable sovereign actions, a method
for apocryphal acts of sovereignty develops.
he organs authorized for a constitutional revision do not become sovereign at all as a result of this jurisdiction. he previous discussion makes
that self-evident. hey become the subject or bearer of the constitutionmaking power to the same limited degree. It is also not possible, for example, to designate the “procedure” as such as “sovereign,” whereby only
an additional ictional personiication would be created and nothing explained. On the other hand, it is a small step from the legislature authorized
to establish statutes that violate ordinary law to one empowered to make
constitutional changes via statute that violate constitutional provisions. If,
however, the issue is the political necessity of such ruptures, respect for
the constitution expresses itself by how the procedure for constitutional
amendment is observed, yet without changing the constitutional text. So
long as this method is not misused, one may assume that it does not contradict the spirit of the constitution. It is captured in Carl Bilinger’s apt formulation (Archiv des öfentlichen Rechts 11, 1926, p. 174). his method is “overwhelmingly accepted as a procedure, one that, indeed, is not correct but
is nevertheless not directly unconstitutional, as would already be the case
prior to the transformation. Even under the new constitution, a constant
practice of ruptures has developed, which expresses itself conclusively in
the promulgation formula of ‘constitution-amending’ Reich statutes (‘after
it is determined that the demands of constitution-amending statutes are
fulilled’)” (the same can be seen in H. Triepel, 33. Deutscher Juristentag
1924, Verhandlungen, p. 48). Nonetheless, it would be erroneous to believe
that any instance of unconstitutionality could be permitted or made constitutional again through a constitution-amending statute in the German
Reich, therefore, according to Art. 76 of the Weimar Constitution, or to
believe that something would in fact be achieved by demanding an explicit
change of the text of the constitutional provision and disregarding “tacit”
ruptures (cf. the [109] Verhandlungen des 33. Deutschen Juristentages 1924,
in particular the contribution of the Count zu Dohna). More precisely, it
is necessary to remain conscious of the distinction between constitutionamending statutes and pure acts of sovereignty and not to overlook the fact
that the procedure of Art. 76 serves two completely diferent goals under
the current practice of the Weimar Constitution: irst, the procedure of the
constitutional revision and, second, the facilitation of apocryphal acts of
sovereignty.
he Concept of the Constitution
155
he prior practice of Art. 76 led to the execution of indiscriminate individual orders that take the form of a constitution-amending statute in accordance with this article and that violate constitutional provisions. he
feeling for the political and constitutional scope of this practice does not
seem to be very vital among responsible politicians, and it is understandable when excellent teachers of state law, such as Hugo Preuß (Deutsche
Juristen Zeitung, 1924, Sp. 653) and H. Triepel (Deutsche Juristen Zeitung,
1926, Sp. 845), protest against it. Indubitably, it would be an act of sovereignty exceeding the bounds of the typically permissible when an initiative
under Art. 73 would be precluded by a constitution-amending statute for a
particular matter, as the Reich government attempted to do with the draft
of a so-called strangulation statute concerning the revaluation issue (Triepel, Deutsche Juristen Zeitung, 1926, Sp. 845; C. Schmitt, Volksentscheid und
Volksbegehren, 1927, p. 17). On the other hand, for example, a closure statute
for pending trials of a particular type, such as the trials regarding the assets
of the former ruling families at the Land level, would be permissible. As
noted, however, one must not overlook that an apocryphal sovereign action
is at issue here.
(d) Constitutional amendment is not constitutional suspension (above
I, 5). he temporary setting aside of individual or of all constitutional provisions is often imprecisely designated as the putting out of force or suspension
of “the constitution.” he constitution in the actual sense, the fundamental
political decisions over a people’s form of existence, obviously cannot be set
aside temporarily, but certainly the general constitutional norms established
for their execution can be precisely when it is in the interest of the preservation of these political decisions. In particular, legislation for the protection
of bourgeois freedom, which is typical of the Rechtsstaat, [110] is subjected
to a temporary suspension. More speciically, as will be shown below, they
do not transcend the principle of a political form of existence in the actual
sense. Instead, they only entail the limits of political action. In instances of
the endangerment of the political form of existence, they must appear as
a hindrance to state self-defense. During disturbances of public safety and
order, in dangerous times like war and domestic unrest, constitutional limitations such as these are suspended. Both constitutional as well as simple
statutory norms for the protection of bourgeois freedom would be violated
by statute not only in the individual case. hey would also be set aside generally for a certain time, so that the limitation of political action, which constitutes its actual purpose and content, does not apply for this period.
Such cases demonstrate most clearly that structurally the modern constitutional
state is composed of two diverse components. here is a series of state power restrictions from the bourgeois Rechtsstaat and a system of political activity, whether
it is monarchical or democratic. he liberal representatives of the bourgeois Rechts-
156
he Concept of the Constitution
staat ignored this problem, and, driven by mistrust, they contemptuously rejected
the state of exception, state of war, state of siege, etc., when they were unsatisied
with the example of the model land of bourgeois freedom, England, where indeed
even the Habeas Corpus Act of 27 May 1679 is suspended during domestic unrest.
he American federal constitution of 1787 provides for the possibility of a suspension of the Habeas Corpus Act in Art. I, paragraph IX, 2. he French constitution of
the 22 Frimaire VIII (Consular Constitution of 13 December 1799) contains the irst
example of the suspension of a “constitution.” According to Art. 92, the constitution
can be suspended for all areas in which armed uprisings threaten the security of the
state. hat was termed “suspension de l’empire de la constitution.” he manner of
expression is explicable from the fact that one designated as the constitution only
the bourgeois Rechtsstaat component (basic rights and separation of powers) (cf.
above § 4, p. 38) and identiied it with the constitution in general. It is thus also the
case with Art.130 of the 1831 Belgian constitution. he constitution can be neither
entirely nor in part suspended: La Constitution ne peut être suspendue en tout ni en
partie.
In the course of the nineteenth century, the so-called state of siege, war, or exception developed into a legal remedy. Certain constitutional norms are suspended,
especially the constitutionally guaranteed access to ordinary courts, personal freedom, freedom of assembly, freedom of the press, etc. he protection from discretionary intrusions of state oicials into these spheres of freedom then erodes to
an extent speciied by statute. he Prussian law on the state of siege of 4 June 1851,
which according to Art. 68a of the [1871] Reich Constitution, is valid in wartime for
the entire Reich except Bavaria, enumerates in § 5 the following articles that can
be rendered invalid for a speciied period and in a particular district: 5 (personal
freedom), 6 (inviolability of living quarters), 7 (access to ordinary courts), 27, 28
(freedom of opinion, freedom of the press), 29 (freedom of assembly), 30 (freedom
of association), 36 (suppression of domestic unrest and execution of the laws by the
civil authorities and, at their request, through armed force). [111]
Art. 48, 2, p. 2, provides for the possibility of placing in abeyance seven constitutional articles that guarantee basic rights, either entirely or in part: 114 (personal
freedom), 115 (inviolability of living quarters), 117 (privacy of the mail), 118 (freedom
of opinion, in particular freedom of the press), 123 (freedom of assembly), 124 (freedom of association), 153 (private property).
he afected constitutional provision is not valid for a speciied period.
he constitutional restrictions and limits of oicial activity the provision
contains do not apply to any oicial with proper authorization. Neither
these constitutional provisions nor the statutory norms resting on them
form a limit on the oicial’s actions. he suspension does not mean a rupture in the individual case, for no valid statutory provision is violated. Put
more precisely, its validity is not eliminated. Nor is there a change, for after
the termination of the possible suspension, which is always only temporary,
the suspended provision again enters into force unchanged.
In Art. 48, 2, 1, the President is empowered to enact measures that he deems necessary for the reestablishment of public security and order. his clause contains the
rule for a typical dictator, whose nature includes (a) that the dictator is authorized to
issue measures that are deined by circumstances and that are neither an act of the
he Concept of the Constitution
157
legislature or of the judiciary. Nor could this clause provide some conclusively regulated procedure. Also, part of its nature is (b) that the content of the authorization
cannot be deined ahead of time in factual terms, but instead is dependent on the
discretion of the empowered person. Herein lies no general legislative grant and factually deined delegation. he content of the authorization is only dependent on the
fact that those authorized consider something necessary under the circumstances
(cf. above § 6, II 9b, p. 59). Art. 48, 2, 2, conferred on the President the additional,
entirely diferently constituted authority to suspend the seven basic rights articles
that are enumerated there, rendering them invalid in more speciic terms. hat
the authorization for any measure that is necessary under certain circumstances
only means the authorization to proceed energetically without regard for statutory
limits, to act, to initiate legal ruptures, but not to place statutory provisions in abeyance. here is a second grant of authority extending beyond the mere authorization
for the President to proceed energetically in the invalidation of statutory provisions,
but it is limited to the seven enumerated basic rights articles of clause 2.
he theory of the “inviolability of the constitution” (Die Diktatur des Reichspräsidenten, Berlin 1923, Verhandlungen des Deutschen Juristentages 1925; also
Gedächtnisschrift für Emil Seckel, 1927, p. 430f.) presented and defended emphatically and with great insight by Richard Grau, is directed against this interpretation
of Art. 48, 2. he theory rests on the thoroughly correct idea that the constitution
[112], even in regard to a wide-ranging commissarial dictatorship, must not be infringed on, an idea, however, that no one reasonably disputed. he question is not
whether the constitution is exempt from infringement. hat is self-evident. he
question, rather, is what “constitution” means here. R. Grau’s opinion remains mired
entirely in the often discussed, uncritically adopted confusion of the constitution in
the actual sense with every single constitutional provision. According to Art. 48, the
President’s commissarial dictatorship serves the purpose of protecting and defending the public security and order, in other words, the existing constitution. Protection of the constitution and protection of every single constitutional provision are
no more identical with one another than are the inviolability of the constitution and
that of every single constitutional provision. When every single constitutional provision becomes “inviolable,” even in regard to the powers of the state of exception,
the protection of the constitution in the positive and substantial sense is sacriiced
to the protection of the constitutional provision in the formal and relative sense. he
purpose of Art. 48, 2, is perverted into its opposite. Speciically, the constitution is
not “inviolable”; just the individual constitutional provision is. In other words, the
individual constitutional provision is an insurmountable obstacle to an efective defense of the constitution.
III. Constitutional disputes. he concept of constitutional dispute must
be derived from a properly understood concept of the constitution. A mere
violation of a constitutional provision does not make every dispute of an
interested party into a constitutional dispute in the actual or, as Haenel
(p. 567) puts it, “in the eminent sense” of the word.
1. A constitutional dispute is not a so-called constitutional complaint.
More speciically, it is not a general legal instrument of the individual,
through which a violation of constitutionally protected rights can be vindicated against an oicial act.
158
he Concept of the Constitution
An example of a constitutional complaint is the Swiss federal constitution of
4 May 1874, Art. 113, 3, according to which the Federal Court rules on “complaints
concerning violations of the constitutional rights of citizens.” Art. 178, 1, of the
Organizational Statute of 22 March 1893, however, stipulates that only a violation of
constitutionally protected rights by a canton or a canton-level (not federal) oicial
can be challenged before the Federal Court. Otherwise, there is hardly a restriction.
Every oicial act, a canton-level statute, a judicial decision, or an administrative act,
can be challenged by any inhabitant authorized to act, whether a national or a foreigner, with the justiication that there is a violation of the objective right of the federal constitution or of a canton constitution. In regard to the violation of basic rights
(especially important individual rights), the individual is also protected when these
rights are secured only through simple statute. For the resolution of the complaint,
recourse can be made to a simple statute. [113] Hence, the entire state activity at the
canton level is supervised by the Federal Court. In particular, the much discussed
Art. 4 of the Swiss federal constitution (every Swiss national is equal before the law)
facilitates a wide-ranging control, above all not just when the civil remedy for the
violation of a subjective right of the complaining party is demanded, but also when,
in so-called relex efect of the objective right, the legal instrument is provided
(Fleiner, p. 445/56). his general constitutional complaint is designated “public law
recourse.” It has the meaning of a legal protection for the individual, and yet it also
has a public law sense, speciically public law in a federal state. When Fleiner, p. 443,
considers this limitation of the Organizational Statute of 1893 (recourse against acts
of the canton, not against federal acts), it is, indeed, noteworthy that the distinctive
federal public law rationale of the provision is revealed in this restriction.
2. In the German public law theory, the word “constitutional dispute”
receives its peculiar meaning through two elements.
(a) he irst element is the structure of a federal constitution, whereby it
does not matter whether a constitution of a state federation or of a federalstate is under consideration. he federation as such has a political and public law interest in constitutional disputes within a member state, which is
diferent from the interest in constitutional complaints and from the general
supervisory interest. In the course of the nineteenth century, this political
and public law interest led to special institutions in the historical development of German federal public law. Every federation rests on the principle
of the homogeneity of its members. In particular, the constitution of the
member states must demonstrate a minimum of homogeneity (cf. below
§ 29). For this reason, every federation has a certain right to intervention,
a right of “intermediation,” as it is called in the German Federation, while,
by contrast, the member states attempted to avoid such intermediations
whenever possible in the interest of their independence. his produces a
specially constituted regime for constitutional disputes within member
states. Constitutional disputes could be settled through the mediation of
the federation, by a panel of judges, by a court, or by way of federal legislation. A genuine constitutional dispute inside a member state must interest
the federation, if not directly, then in any case under certain circumstances,
he Concept of the Constitution
159
and it thereby becomes a federal afair. Hence, it is understandable that the
concept of constitutional dispute was introduced into the German public
law through a 30 October 1834 decision of the German Federal Assembly.
hrough this federal decision (Protokolle der deutschen Bundesversammlung
1834, p. 927f.), the federation members obligate themselves in those cases where
errors arise in a member state “between the government and the estates over the
interpretation [114] of the constitution or over the boundaries of the participation
granted to the estates during the exercise of certain rights of the regent, above all
through the rejection of the means necessary for leading a government appropriate
for the federal obligations of a Land constitution, and that all constitutional means
and those compatible with existing statutes” had been undertaken unsuccessfully
to abandon the decision of such disputes through arbitration before the mediation
of the federation is petitioned. On this, cf. Zachariae, Das deutsche Bundesrecht, II,
1854, § 279, p. 770; also G. v. Struve, Das öfentliche Recht des deutschen Bundes, II,
1846, p. 39.
(b) he other element is the structure of the constitutional monarchy in
Germany, which represents an intermediary position between the monarchic and the democratic principle and makes it possible to treat government and estates, prince and popular assembly, dualistically as two parties
that stand opposite one another and whose relations are regulated by the
constitution. Hence, the constitution can be treated as a contract (cf. above
§ 7, II, 2), whose parties are the government and the popular assembly. Constitutional disputes are deined not only by the object of the dispute (the
constitution), but also by the parties (government and popular assembly).
he question is not whether the linguistic usage is determined unequivocally by the federation decision of 1834 and whether only a conlict between
the government and the popular assembly can be designated a constitutional dispute. Art. 76, 2, of the 1871 Reich Constitution also uses the word
in this sense.
Art. 76, 2, stipulates that “in federal states whose constitution does not provide
an oicial to decide such constitutional disputes, the Bundesrat must mediate the
dispute amicably on petition of one of the parties, or when that does not occur
one must bring the parties to a settlement via federal legislation.” he practice of
the Bundesrat corresponded to the historically grounded interpretation of the concept of constitutional dispute, as did the prevailing opinion of public law scholars.
On this, cf. Laband, Staatsrecht, I, p. 261; Seydel, Kommentar, p. 407; also Haenel,
Staatsrecht, I, p. 568 (at least as a rule; only under extraordinary circumstances does
it intend to provide the individual state citizen or member of a nonconstituent representative body a right to resolution of constitutional disputes).
In Art. 19, the Weimar Constitution provides that constitutional disputes
inside a Land are decided by a Staatsgerichtshof. Meanwhile, this Staatsgerichtshof was established in accord with the Reich statute of 9 July 1921
(Reichgesetzesblatt, p. 905). he Art. 19 provision is rooted entirely in the
development of the German federal state. It does not introduce a federal
supervisory power of the Swiss constitutional complaint variety, but in160
he Concept of the Constitution
stead presupposes the German legal concept of the constitutional dispute.
[115] In the deliberations on the Weimar Constitution, that is unequivocally
emphasized (Protocol, p. 411, Privy Counselor Zweigert of the Reich Justice
Ministry against the opinion of Kahl, who designates every dispute involving the substance of the constitution a constitutional dispute, even if it does
not occur between the government and the popular assembly).
3. he interpretation of the term “constitutional disputes” in Art. 19
has already produced viewpoints in the public law literature that distance
themselves greatly from the historical development of the term.
A Kiel dissertation by Dose, Die Zuständigkeit des Staatsgerichtshofes zur Entscheidung von Verfassungsstreitigkeiten, 1923, provides the historical interpretation
in the narrowest sense. According to an opposing understanding, every individual
state citizen can be a party to such a dispute and be actively airmed in his or her
position. See, for example, Poetzsch, Kommentar, p. 72 (“it does not matter who
appears as a party in this way”); Poetzsch, Archiv des öfentlichen Rechts, 42, p. 91f.
(though rather restrained, on the question of basic rights); Anschütz, Kommentar, p.
106; Giese, Kommentar, p. 101 (“even a state citizen”). According to a third opinion,
only the highest state organs or parts of them can lodge a complaint. See W. Jellinek, “Verfassung und Verwaltung,” II (Staatskunde, 1925, p. 29). he prior practice
of the Staatsgerichtshof for the German Reich extends very far in terms of the recognition of standing and active airmation of one’s position. hus, for example, the
factions of Land legislatures are recognized as parties against the state’s ministry
(decision of the provisional Staatsgerichtshof of 12 July 1921; published in Archiv
des öfentlichen Rechts 42, p. 79, with very noteworthy remarks by Poetzsch; and the
decision of 21 November 1925, RGZ, vol. 112, p. 1*),2 as is the local ailiate Nassau
of the former high Reich nobility against the Prussian State Ministry, decision of
10 May 1924 (RGZ 111, 1*, p. 5*), where it was decided that “in regard to their property and family relationships, therefore, the petitioners claim to have a right of selflegislation, which rests not merely on a delegation of the state power of the Land. . . .
he dispute over the existence and scope of such a right represents a constitutional
dispute in the sense of Art. 19.” Localities are also recognized as parties (Deutsche
Juristen Zeitung, 1922, Sp. 427), etc.
he received historical interpretation, which limits the constitutional
dispute to a conlict between the government and the popular assembly,
can no longer be held in its traditional simplicity. It was only possible as
long as the constitution, with a dualism characteristic of the constitutional
monarchy, could be understood as a contract between the prince and the
estates, government and popular assembly. In a purely democratic constitution, which the people establish by virtue of their constitution-making
power, such contractual relations and, consequently, also such party roles
are no longer possible. On the other hand, one must reairm that not every
conlict of some interested party is considered a constitutional dispute
merely because some constitutional provision is involved, and that even
here the constitution has to be distinguished from individual constitutional
provisions. [116] An unlimited opportunity for popular complaints of any
he Concept of the Constitution
161
type should not be granted to every state citizen or even to every “world
citizen.” Art. 19 does not mean that the protection of the constitution in
general should be entrusted to the citizens of the state.
here have been constitutions that generally entrust the protection and defense
of all constitutional rights to state citizens. hus, Art. 110 of the French constitution
of 14 November 1848 states that “l’assemblée nationale conie le dépôt de la présente Constitution et les droits qu’elle consacre, à la garde et au patriotisme de tous
les Français.” When state president Louis Napoleon was denounced because in the
matter of the Roman Republic he lagrantly violated the constitutional rights of the
popular assembly in the interest of the pope, a minority of the leftist parties on 12
June 1849, appealing to Art. 110 of the constitution, attempted to call the population
of Paris to arms. he attempt misired in an especially pitiful manner (on this, see
Emil Bourgeois and E. Clermont, Rome et Napoléon III, Paris 1907, p. 190/91).
he Weimar Constitution provides the individual state citizen a right to
petition (Art. 126), and it provides minorities of state citizens the opportunity to initiate a referendum via a popular initiative (Art. 73, 2) or to introduce a popular legislative procedure (Art. 74, 3). But it recognizes neither a
popular complaint nor a right of the individual to armed resistance. From
the democratic principle, nothing arises in the way of a general complaint
authority or of the active airmation of individual petitions.
he uncertainty, one can say confusion, in the delimitation of the roles
of parties in constitutional disputes rests ultimately on the fact that the
Weimar Constitution, like every modern constitution, is a mixture of liberal (Rechtsstaat-based) and democratic (political) components (cf. below
§ 16). A logically executed, purely individualistic-liberal understanding, disregarding all distinctively political elements of the constitutional structure
(whether it is a monarchical, democratic, or federal state), must provide
every individual person, not only every state citizen, with a right to petition against the state in every violation of objective law. hus, a court on
the state and against the state would develop out of the Staatsgerichtshof.
Indeed, every violation of a statute would at the same time be a violation
of the constitution. he limitation on constitutional disputes inside a Land
would then be unreasonable, and it must, as W. Jellinek (“Verfassung und
Verwaltung,” Staatskunde, II, 1925, p. 29) says, appear “odd” that a dispute
resolution mechanism is not envisioned for constitutional disputes in the
Reich. [117]
In contrast to this, one must airm the viewpoint that “not every conlict
over the meaning of a constitutional article is a constitutional dispute; it
depends on the subjects contesting the issue” (R. homa, Archiv des öfentlichen Rechts 43, p. 283). A Staatsgerichtshof for the settlement of constitutional disputes should only decide on disputes involving the constitution,
not those concerning constitutional details. herefore, only the “principal
institutions” of the constitution (as Haenel, p. 92, states) come into con162
he Concept of the Constitution
sideration as parties of such a dispute. More speciically, this includes only
the highest oices, whose direct purpose is the organization and execution
of the political decisions providing the constitution its content. As before,
this means above all parliament and government. his applies secondarily
to the other highest organizations, but always according to the character
of the political institution in question. Only these primary organizations
can directly violate the constitution, and only between them can there be
a genuine constitutional dispute. If the practice of the Staatsgerichtshof up
to now has expanded standing to sue, in particular recognizing minorities
of Land parliaments as parties, then one can allow this expansion to stand
as constitutional custom. On the other hand, the judgment of 10 May 1924
(RGZ 111, p. 5*), which treats a local branch of the former high imperial
nobility as a party, clearly goes too far.
4. Another question is to what extent is it advisable to resolve doubts
and diferences of opinion about the interpretation of constitutional laws by
a judicial procedure. For a resolution of such doubts, in particular the issue
whether a statute or a decree is reconcilable with constitutional provisions,
a special judicial procedure can be envisioned, in which a court decides.
his court is designated a “Staatsgerichtshof ” or even a “constitutional
court.”3
A Czechoslovakian statute of 9 March 1921 provides that a “constitutional court”
decides exclusively about whether a statute or an emergency decree contradicts the
constitution. he Austrian federal constitution of 1 October 1920 envisions a “constitutional court” in Art. 139 and Art. 140. For the German Reich, cf. the suggestions
of Triepel in the 33. Deutschen Juristentag, Verhandlungen, Berlin 1925, p. 64. See
additionally, W. Jellinek, Veröfentlichung der Vereinigung Deutscher Staatsrechtslehrer, 1925, no. 2, p. 38f., and the “Entwurf eines Gesetzes über die Prüfung der
Verfassungsmässigkeit von Reichgesetzen und Reichsverordnungen,” reprinted in
the essay by R. Grau, Archiv des öfentlichen Rechts, new series 11, 1926, p. 287f. According to § 1 of this draft, the Staatsgerichtshof for the German Reich (in the exercise of § 18 Nr. 1 of the statute on the Staatsgerichtshof of 9 July 1921) resolves doubts
and diferences of opinion over whether [118] a “legal provision of the Reich law
is contrary to the Reich Constitution.” Reichstag, Reichsrat, or Reich government
could request the decision of the Staatsgerichtshof. R. Grau distinguishes between
a genuine Staatsgerichtshof (which, “with judicial independence, is called upon to
decide between political factors . . . in all circumstances”) and a constitutional court,
which “in questions of constitutional law has to decide as a trustee of the constitution in place of other courts.”
Of course, by a constitution-amending statute, it could be ordained for
the German Reich that some oicials, associations, or even individual state
citizens have the opportunity to occasion the court decision about whether
a statute or a decree infringes on a constitutional provision of the Weimar
Constitution, for example. In the many cases of doubt, to which the individual constitutional provisions of the Weimar Constitution give rise, it is
he Concept of the Constitution
163
not unreasonable to advocate the institution of a constitution-interpreting
court of law, as did Count zu Dohna and H. Triepel at the hirty-third Meeting of German Jurists (1924) and by Anschütz and Mende at the hirtysixth Meeting of German Jurists (1926). In response to the ambiguity of
the earlier constitutions of the constitutional monarchy, Rudolf Gneist (Der
Rechtsstaat, 1872) already raised an equivalent demand as a requirement of
the Rechtsstaat. But the type of law court that decides all disputes of constitutional interpretation would, in fact, be a high political institution. his
is because it also—and above all—would have to decide these doubts and
diferences of opinion, which result from the peculiarities of the dilatory
formal compromises (above § 3, III, p. 31), and it would actually reach the
substantive decision that was postponed through the compromise. So the
establishment of such a court of law in Germany today would already necessarily require a constitution-amending statute in line with Art. 76.
It is a murky iction to separate legal questions from political questions and to
assume that a public law matter permits itself to be rendered nonpolitical, which, in
fact, means to be deprived of the character of a state. Anschütz (Verhandlungen des
Deutschen Juristentages 1926, Berlin 1927, p. 13) wants to submit all disputes about
the interpretation and application of the Reich Constitution to a Reich-level Staatsgerichtshof. However, he deems it “self-evident” that the court of law may decide
only legal questions in contrast to political questions. “I do not believe,” he says,
“that on this issue anything further is to be said.” I fear that the question just begins
at this point. In place of a court of law with its appearance of judicial formality, a
political organ, decides with more integrity, such as a “senate” in the style of the
Napoleonic constitutions, which envisioned a so-called Sénat [119] conservateur for
the protection of the constitution: for example, Title II of the Constitution of the
Year VIII (1799), Art. 15f.; Title VIII of the Senate Consul of the Year XII (1803), Art.
57f; Title IV of the constitution of 14 January 1852, Art. 29; Art. 26 of the Senate
Consul of 14 March 1867. Otherwise, there is the danger that instead of a juridiication of politics, a politicization of the judiciary emerges, which undermines the
prestige of the judiciary.
IV. he constitution as object of attack and protection in cases of high treason. he criminal law provisions regarding high treason essentially have the
protection of the constitution as an object. he criminal law instruments
that deine high treason speak above all of an attack on “the constitution.”
At the same time, other objects of attack, such as the person of the prince
or the territory of the state, lose general signiicance. In a state that rests on
the foundation of the monarchical principle and in which, therefore, the
monarch is the bearer of the constitution-making power, an attack on the
person of the monarch is one directly on the constitution itself. he most
important case of high treason, however, is the so-called constitutional
high treason in the strict sense, whose character is today deined mostly as
an undertaking directed “toward violent change of the constitution.”
hus § 81, 2, of the German Reich’s Criminal Code of 1871 reads: “Whoever endeavors to violently change the constitution of the German Federation or of a federal
164
he Concept of the Constitution
state.” § 86 of the Reichstag’s proposed statute of 1917 stipulates “whoever changes
the Reich Constitution or that of a Land with violence or threat of violence.” It is
the same with § 85 of the 1926 Reichstag proposal (cf. Leopold Schäfer’s synoptical
presentation of the German draft criminal statutes, Mannheim 1927, p. 62/3).
he criminal law literature on this deining factual characteristic of the
“change of the constitution” shows that not every individual constitutional
law is at issue and that the so-called formal concept of the constitution
leads to a true absurdity. More precisely, only the “fundamental state institutions” or “the foundations of political life” are designated as the constitution. It is rightly emphasized that “not every attack on the constitutional document, not every violation of a provision of the constitution,”
represents high treason against the constitution. “High treason against the
constitution is older than any constitutional document, and our constitutions contain provisions that difer most in terms of importance” (Binding).
Consequently, factual deinitions are also found in the older criminal law
provisions concerning high treason, which better characterize the process
than “change of the constitution,” a term prone to misunderstanding. he
General Law of Prussia, [120] for example, part II, 27, § 92, the model of
the later conceptual deinitions, calls high treason an undertaking that “is
directed toward a violent transformation of the state constitution.” Other
criminal law provisions speak of the fact that the constitution should be
suppressed or that it should be overturned, either wholly or in part, or that it
should be eliminated in its principal components, etc. Even here the necessity of distinguishing the constitution in the positive and substantial sense
from individual constitutional dictates is evident throughout.
he criminal law scholarship on this issue is thoroughly of one mind. See, for
example, F. van Calker in Vergleichenden Darstellung des Strafrechts, special part,
1906, p. 19, v. Liszt, 20th ed., p. 551; and Frank, Kommentar, Nr. 2 to § 81/2. Above
all, however, see K. Binding, Lehrbuch des gemeinen deutschen Strafrechts, special
part II, 2, p. 435, and Count zu Dohna, Deutsche Juristen Zeitung, 1922, Sp. 81/82 (on
the draft of the enabling act), who argues: “Indeed, then, high treason as an internally closed factual deinition only permits itself to be distinguished from attacks
on state institutions that are not qualiied in this way, when one airms that in the
irst case the intention must have been directed toward the alteration of the legal
structure of the state.” Additional literature is found in the Heidelberg dissertation
of H. Anschütz, Der Verfassungsbegrif des Tatbestandes des Verbrechens des Hochverrats, 1926, p. 28f. (manuscript). he Reichsgericht (Sächsische Archiv III, p. 366)
attempts to provide the proper distinction. “he point of departure,” it argues, “is
that the statute (the criminal statute), when it speaks of constitution, means the
constitutional document. Not all provisions of the constitutional document,” it continues, “can be objects of a constitutional violation. Not every attempt to eliminate
a constitutional organization represents an attack on the constitution. More speciically, objects of attack are only those components of the constitution that form
the foundations of the state’s political life, and this is certainly without regard for
whether or not their regulation occurs directly in the constitutional document.”
he Concept of the Constitution
165
High treason, therefore, is only an attack on the constitution in the positive sense presented here (§ 3, p. 23). A further question is whether there
are additional distinctions within the factual deinition of high treason that
are not a result of the necessary one between the annihilation and elimination of constitutions (above p. 99). As the concept is mostly deined today
in the theory and practice of criminal law, these essential distinctions become valid only in the context of the enforcement of criminal sanctions.
In this instance, these distinctions certainly appear very clearly. For in a
democratic constitution, it is self-evidently not the same whether an undertaking only serves to set in motion the constitution-making power of the
people, making it actually only an appeal to the people, whose constitutionmaking power can be sufocated by an apparatus of organizations and competences, or whether this constitution-making power itself [121] should be
eliminated. It is also not the same whether the goal of the enterprise of high
treason is a restoration of the monarchical principle or a dictatorship of the
proletariat. Just so, in a monarchy it would be natural to judge diferently
the issues of whether the democratic principle should replace the monarchical one or whether in the context of the monarchy a coup d’état can possibly serve the monarchical cause.
he core of all such distinctions lies in the fact that a concept like “constitution” cannot be broken down into norms and normative elements. he
political unity of a people has its concrete form in the constitution. Infractions like high treason or treason in a Land protect political existence, not
the formalities, which are envisioned for changes in the constitution, and
not any other values and imperatives. Consequently, in regard to factual
deinitions like high treason or treason against a Land, the attack on the
constitution can also never be justiied by the fact that some international
law obligation or norm puts the state or the state oicials in the wrong. he
concrete existence of the politically uniied people is prior to every norm.
[122]
166
he Concept of the Constitution
Part ii
the reChtssta at ComP onent of
the moDern Constitution
§ 12.
he Principles of the Bourgeois Rechtsstaat
I. [125] In this context, what is understood as the modern, bourgeois Rechtsstaat is a type of constitution to which the majority of today’s constitutions
conform. For this reason alone, this type of constitution is called “modern.”
herefore, there is no value judgment at all associated with the word, in the
sense of progress, timeliness, or the like.
1. he principles of the modern, bourgeois-Rechtsstaat constitution correspond to the constitutional ideal of bourgeois individualism, so much,
indeed, that these principles are often equated with the constitution as
such and “constitutional state” is given the same meaning as the “bourgeois
Rechtsstaat” (above § 4, p. 36f.). In the irst place, this constitution contains
a decision in the sense of bourgeois freedom: personal freedom, private
property, contractual liberty, and freedom of commerce and profession.
he state appears as the strictly regulated servant of society. It is subordinated to a closed system of legal norms, or it is simply identiied with this
system of norms, so that it is nothing but norm or procedure. Despite its
legal and norm-bound character, the Rechtsstaat in fact always remains a
state, so it still contains another distinctly political component besides the
bourgeois Rechtsstaat one. More on this linkage and mixture will be presented below (§ 16, p. 200). his means there is no constitution that, in its
entirety, would be nothing more than a system of legal norms for the protection of the individual against the state. he political element cannot be
separated from the state, from the political unity of a people. And to render
public law nonpolitical would mean nothing other than to deprive public
law of its connection with the state. he Rechtsstaat aspect, more precisely,
is only one part of any modern constitution. hus, what F. J. Stahl said about
the Rechtsstaat is still quite apt today. “It does not at all signify the goal
and content of the state, [126] but rather only the means and commitment
to realize these” (Stahl, Staats- und Rechtslehre, II, p. 137). An outstanding
representative of the theory of the bourgeois Rechtsstaat, Rudolf Gneist,
declares that even every opponent of Stahl’s views could “airm” this principle “verbatim” (Gneist, Der Rechtsstaat, 1872, p. 60).
his Rechtsstaat component, however, is so meaningful for and characteristic of the modern constitution and is, moreover, such an internally
complete system of principles, that it is necessary and appropriate to portray and treat it separately.
2. According to its historical development and fundamental schema,
which is still dominant today, the modern bourgeois Rechtsstaat constitu-
tion is irst of all a free constitution, particularly in the sense of bourgeois
freedom. Its sense and goal, its τέλος, is in the irst instance not the power
and glory of the state, not gloire as per Montesquieu’s categorization (above
§ 4, p. 38). It is, rather liberté, protection of the citizen against the misuse of
state authority, and, as Kant says, it is instituted “in the irst place according
to the principles of the freedom of the members of a society as persons.”
See Kant, Zum ewigen Frieden, II, 1, “Deinitivartikel” and “Vom Verhältnis der
heorie zur Praxis im Staatsrecht,” Vorländer edition, Phil. Bibl. 47, p. 87. In the
latter, Kant writes: “Merely as a legal circumstance, therefore, the bourgeois condition is founded a priori on the following principles: 1. freedom of every part of
society as persons; 2.equality of these parts with every other one as subjects; 3. autonomy of each part of a common system as citizens.” Kant’s formulations are relevant here because they contain the clearest, most conclusive expression of these
principal ideas of the bourgeois Enlightenment, which until then had not been replaced by a new, ideal foundation.
3. From the fundamental idea of bourgeois freedom follow two consequences, which constitute both principles of the Rechtsstaat component
of every modern constitution. First, there is a principle of distribution. he
individual’s sphere of freedom is presupposed as something prior to the
state, in particular the freedom of the individual is in principle unlimited,
while the authority of the state for intrusions into this sphere is in principle
limited. Second, there is an organizational principle, which facilitates the
implementation of this distributional principle. State power that is in principle limited is distributed and comprised in a system of deined competencies. he principle of distribution—individual freedom that is in principle
unlimited and a grant of power to the state that is in principle limited—[127]
inds its expression in a series of so-called basic or liberty rights; the organizational principle is contained in the theory of the so-called separation of
powers, more speciically, the separation of diferent branches of the state
exercise of power, whereby the separation of law-making, government (administration), and application of the laws—legislative, executive, judicial—
above all comes into consideration. his division and separation serves the
interest of the reciprocal regulation and limitation of these “powers.” Basic
rights and separation of powers denote, therefore, the essential content of
the Rechtsstaat component of the modern constitution.
For this reason, Art. 16 of the Declaration of the Rights of Man and Citizen of 1789,
which was already quoted, rightly states that a state without basic rights and without
separation of powers does not have a constitution, in particular, not a constitution
in the sense of the bourgeois Rechtsstaat’s ideal concept of a constitution. For Kant,
every state contains three intrinsic powers, the “generally uniied will in the form of
a person divided in three parts as legislator, governor, and judge” (Rechtslehre, part
II, Das Staatsrecht § 45, Vorländer, p. 136). Only a state with a division of powers has
the “constitution solely conforming to law.” It is a “pure republic,” because the rule of
law (in contrast to the rule of men and to arbitrariness) can only be realized through
170
he Bourgeois Rechtsstaat
the separation of the legislator from legal application and from the judiciary. Every
elimination of this distinction means “despotism” (Zum ewigen Frieden, section II,
1., “Deinitivartikel,” Vorländer, p. 129). Even Hegel retains the distinction, when he
also rejects a mechanical and abstract separation (Rechtsphilosophie § 269, Lasson,
p. 206; additionally pp. 220 and 357). In his early work on the German constitution,
1802 (Lasson, p. 3n.), he terms despotism a state without a constitution, probably
under the inluence of Art. 16 of the Declaration of the Rights of Man and Citizen of
1789.
he idea had been expressed in the American constitutions before that Declaration of 1789. he Declaration of the Rights of Virginia (1776) states in Art. 5 and in
the text of the constitution itself that each of the three powers must form a specially
separated distribution; that none may exercise the function of the others; and that
no one may clothe a public function in more than a department. his is comparable
to other American constitutions, although the federal constitution of 1787, which
realized the principle especially consistently, contains no express proclamation. he
French constitution of 1791 repeats Art. 16 of the human rights declaration and demands the separation of powers (séparation des pouvoirs). he Jacobin constitution
of 1793 does not speak of distribution or separation of powers. Nor does the Girondist constitutional draft (Condorcet). In Art. 29 of its rights declaration, it is content
to state the necessity of “a limitation of the public function through statute” and of
the guarantee of the responsibility of all public oicials. By contrast, the constitution of 1795 (Constitution of the Directory of the Year III) once again proclaims expressly (Art. 22 of its Declaration of the Rights of Man and Citizen) that “the social
guarantee cannot exist, if the distribution (division) of powers is not introduced,
and when their boundaries are not determined and the responsibility of the public
oicials is not guaranteed.” he French constitution of 4 November 1848 declares in
Art. 19 that the separation (séparation) of powers is the irst condition of a free government. he constitutions of the second Reich (Art. 1 of 14 January 1852 and Art. 1
of 21 May 1870) state that “the Constitution recognizes, reinforces, guarantees the
[128] major principles proclaimed in 1789, which are the foundation of the public
rights of the French.” Not with the same doctrinal principles, but nevertheless as
an express determination, the Frankfurt constitution of 28 March 1849 (§181) stipulates that adjudication and administration are separate from and independent of
one another. his separation proved acceptable because the aim was just protection
against the monarchical government; defense against the legislature was not considered since this question was deemed resolved through the consent of the popular
assembly. he basic rights of the Germans were proclaimed at the same time.
4. Even where basic rights and separation of powers are not explicitly
expressed or proclaimed in a modern Rechtsstaat constitution, they must
be valid as principles of the bourgeois Rechtsstaat, and they must be part of
the positive-legal content of every constitution that contains a decision for
the bourgeois Rechtsstaat.
On the fact that the basic rights (human and civil rights of 1789) continue to
be self-evidently valid for the French public law, with positive-legal signiicance,
although the present constitutional laws of 1875 no longer enumerate them, cf.
A. Lebon, Das Verfassungsrecht der französischen Republik, 1909, p. 174. he principles of the Declaration of the Rights of Man and of the Citizen of 26 August 1789
are so irmly entrenched in the consciousness of the French that their reairmation
he Bourgeois Rechtsstaat
171
in the constitution is superluous. See also Esmein-Nézard, I, p. 561, and Duguit,
Droit Constitutionnel, 2nd ed., II (1923), p. 159, III, p. 563.
5. In its Second Principal Part, the Weimar Constitution enumerates the
basic rights and duties of Germans. he bourgeois Rechtsstaat’s fundamental principle of distribution is recognized, even if the impact of this recognition is diluted and obscured by the fact that diverse individual provisions,
including social reformist programs and other matters that for political
reasons were included in the constitutional text, are placed directly and unsystematically next to and between the actual basic rights. he Rechtsstaatbased organizational principle of the separation of the three powers is not
expressly declared. However, it lays the foundation for the organizational
provisions of the First Principal Part and becomes recognizable even in
the headings of the individual sections (Reich legislation, Reich administration, legal adjudication). he federal state organization of the Reich also
presupposes the separation of powers, because the distribution of jurisdictions between Reich and the Lands is not thoroughly regulated according to content. It is regulated diferently for legislation, administration, and
the judiciary. he organization of Reich oicials rests on the usual distinction between legislation and government. hen, inside of the government,
[129] a distinctive distribution of government powers between President
and Reich government is again undertaken. Ultimately, the Reichsrat was
not organized as a chamber of states, so that it could receive a share of the
administration. As a chamber of states speciically, that is, as a legislative
organ, the Reichsrat would have to remain separated from administrative
afairs according to the basic principles of a logically consistent distinction
between legislation and administration (H. Preuß, Protocol, p. 120).
he principle of separation of powers is valid even for other constitutions as
a necessary element of the Rechtsstaat. In its character as a Staatsgerichtshof, the
Swiss Bundesgericht gave expression to the basic principle that “every citizen can
expect the diferent powers of the state not to overreach their boundaries,” regardless, moreover, of whether the basic principle of the separation of powers is declared
expressly in the canton constitution or whether it results on its own from the distinction between the legislative, judicial, and administrative power (References in
Fleiner, Schweizerisches Bundesstaatsrecht, p. 447, nn. 21 and 23).
II. he concept of the Rechtsstaat. he current Rechtsstaat concept is deined from the perspective of bourgeois freedom. In this way, the ambiguous term “Rechtsstaat” receives a distinctive sense.
1. According to the general meaning of the word, every state that respects unconditionally valid objective law and existing subjective rights
could be designated a Rechtsstaat. hat would mean that the status quo
that is in force would be legitimated and perpetuated and that “well-earned
rights,” whether of individuals or of some associations and corporations,
are considered more important than the political existence and security of
172
he Bourgeois Rechtsstaat
the state. In this sense, the traditional German Reich, the Roman Empire
of the German Nation, was an ideal Rechtsstaat in the period of its dissolution. Its character as a Rechtsstaat was due to nothing other than the expression and means of its political decline. he well-earned rights of some
estates or vassals could hinder any political action. With the destruction of
the Reich’s political existence, even all these well-earned rights themselves
were certainly also eliminated.
hus, Bluntschli (Article “Rechsstaat” in his Staatslexikon) can say the fealty
state is a Rechtsstaat, or Max Weber (Wirtschaft und Gesellschaft, p. 745) can claim
that the medieval Rechtsstaat was a Rechtsstaat of subjective rights, “a bundle of
well-earned rights,” while the modern Rechtsstaat is an objective legal order, more
speciically, a system of abstract rules. In his book on the Rechtsstaat, Gneist also
speaks of this Rechtsstaat in the German Reich, but only because of its carefully
composed jurisdiction, which was deined for the protection of the rights of all
against everyone else, [130] especially even for the protection of subjects against
orders and decrees of the Land authority that violate rights. However, he does not
fail to see that this system leads to the dissolution of the state, because it rests on the
intermingling of private and public rights (p. 52).
2. In the sense of the bourgeois Rechtsstaat, the word receives its meaning at irst through a series of oppositions. Like some designations of this
type, it above all has a polemical sense. he Rechtsstaat signiies opposition
to the power state, the oft-discussed opposition of liberté du citoyen to the
gloire de l’état. An additional meaning lies in the contrast to the ordered,
welfare, or any other type of state that does not limit itself to only upholding the legal order. Under legal order is understood a bourgeois legal order,
which rests on private property and personal freedom and considers the
state to be the armed guarantor of this bourgeois order, peace, and security.
3. he concept of the bourgeois Rechtsstaat receives a more precise sense
if one is not just content with the general principles of bourgeois freedom
and the protection of justice in general but, instead, sets up certain organizational criteria and elevates them to being the deining feature of the true
Rechtsstaat. Naturally, the general foundation of the organization always
remains the principle of the separation of powers. Nevertheless, during the
political struggle of the free bourgeoisie, diferent additional consequences
result from the principle, which leads to the fact that individual special demands are stressed and made prominent.
(a) A state only counts as a Rechtsstaat when intrusions into the sphere
of individual freedom may be undertaken solely on the basis of a statute. It
is only a state, therefore, whose administration, according to the expression
of O. Mayer, is dominated by the “reservation” and “priority” of the statute.
he polemical aspiration of this specialization of the concept is directed
against the administration. Put into political terms, it is set against the
he Bourgeois Rechtsstaat
173
power instruments of the royal government, military and civil oicialdom.
A state is a Rechtsstaat only when the entire administrative activity, in particular the police, stands under the reservation and priority of the statute
and when intrusions into the individual’s sphere of freedom are permitted
only on the basis of a statute. he principle of the legality of administration
becomes the distinguishing mark. he guarantee of bourgeois freedom lies
consequently in the statute. Which guarantees against the misuse of the
[131] statute are provided is an additional question, about which, however,
the German bourgeoisie had become less conscious in the nineteenth century, because all its theoretical and practical interest was claimed by the
struggle against the royal government and the royal administration. On
this, cf. below § 13.
(b) A state only counts as a Rechtsstaat when its entire activity is wholly
comprised in a sum of precisely deined competencies. he division and
separation of powers contains the fundamental principle of this general
calculability of all expressions of state power. he demand of calculability
originates from the bourgeois Rechtsstaat principle of distribution, according to which the freedom of the individual is in principle unlimited. Every
state authority, by contrast, is in principle limited and, consequently, calculable. General calculability is the presupposition of general controllability.
All state activities, even legislation and government, end in an operation
that is ongoing and calculable in terms of a previously deined norm. Everything is caught up in a network of competencies. he most extreme competencies, even a “competence to deine competence,” are never in principle
unlimited, never “the plentitude of state power.” It is, rather, always a controlled power, the overstepping of which could set into motion a formal
judicial procedure. Legality, controllability, and conformity to jurisdictional boundaries and to judicial forms thus provide the closed system of
the bourgeois Rechtsstaat. he constitution appears as the basic law of this
system of statutes. One inesses the fact irst that the constitution is nothing
other than a system of statutory norms, second that this system is closed,
and third that it is “sovereign.” More speciically, at no point is the system
ruptured, nor can it be inluenced, either for the purpose or necessity of
political existence.
(c) As it is guaranteed in Art. 102, the independence of judges is termed
an especially important organizational mark of distinctiveness of the bourgeois Rechtsstaat. Nevertheless, it is inadequate to guarantee independence
for private legal disputes and for criminal matters. hat would be routine
and was always the case for the most part in all well-functioning monarchies. he interest of the liberal bourgeoisie struggling for the Rechtsstaat
was above all in a judicial supervision of the royal government’s actual instrument of power, [132] in particular of the administrative oicialdom.
174
he Bourgeois Rechtsstaat
his explains the fact that a broader linguistic usage designates only a state
with judicial supervision of administration as a Rechtsstaat. For a time, the
enthusiastic opposition against the “all-powerful bureaucracy” extended to
the demand for making the doctrine of the civil courts applicable to the
administration. “Justice and statute can only attain true signiicance and
power, where it already inds a court judgment serving its realization.” his
fundamental principle of Rechtsstaat thinking is found in the famous piece
of writing of the Hesse appeals’ adviser Bähr (Der Rechtsstaat, Cassel 1864).
he distinctiveness of his idiosyncratic writing lies in the fact that only the
ordinary civil courts are viewed as these judicial bodies and in such a way
that the entire state life can be subjected to the control of county and appellate judges. hus, the Rechtsstaat becomes the so-called judicial state.
By contrast, in states with a more signiicant political life, especially
in Prussia, the necessity of a special administrative law adjudication was
always recognized. Above all, even Rudolf Gneist in his frequently mentioned work on the Rechtsstaat (1872) demanded a special administrative
jurisdiction, after Lorenz von Stein in his Verwaltungslehre (Stuttgart 1865)
opposed the aforementioned private law constructions and demonstrated
the distinctiveness of administrative power. Organizationally, the administrative law adjudication became a deining feature of the Rechtsstaat. In
an idiosyncratic manner, Gneist bound the Rechtsstaat concept together
with that of local self-government as a voluntary activity of propertied and
educated state citizens. he foundational idea of his understanding is the
necessity of integrating society (speciically, the propertied and educated
bourgeoisie) into the state, an idea whose systematic presupposition is
found in Lorenz von Stein. What Gneist had in mind is best recognized in
his claim that “the institutions of administrative jurisdiction in the constitutional state can no longer be constituted exclusively from the professional
civil service.” “More precisely,” he continues, “it needs an organic formation
out of the womb of the society (by that is meant the voluntary activity of
educated state citizens who are not civil servants). In this new formation
lies the Archimedean point of today’s Rechtsstaat” (pp. 159/160). [133]
he organizational criterion of the bourgeois Rechtsstaat thus becomes
ever more diferentiated. One can generally say that according to the current interpretation it is suicient, if, for the area of administrative law in
particular, special courts with independent judges are organized as administrative courts that decide cases with procedures taking a judicial form.
he regulation established by the Prussian administrative statute of 30
July 1883 would satisfy the minimum for this type of Rechtsstaat, although
no possibility of general complaint is provided that is in accord with the
form of bourgeois adjudication. Instead, the so-called enumerative principle holds; under it only those afairs expressly permitted by statute can be
he Bourgeois Rechtsstaat
175
brought before the administrative courts (often designated as a system of
legal actions).
4. he fully realized ideal of the bourgeois Rechtsstaat culminates in
the conformity of the entire state life to general judicial forms. Under this
Rechtsstaat ideal, there must be a procedure for every type of disagreement
and dispute, whether it is among the highest state oicials, between oicials
and individuals, or, in a federal state, between the federation and the member states or among member states, without regard for the type of conlict
and object of dispute, a process in which decisions are reached according to
a procedure in accordance with legal forms. It is certainly often overlooked
that the most important presuppositions of this type of procedure are valid,
general norms. For the judge is “independent” only so long as there is a valid
norm on which he is unconditionally dependent, whereby under “norm” is
understood only a general rule determined in advance (below § 13). Such a
rule’s validity alone provides the judge’s decision with its legal force. Where
this type of norm is absent, nothing more than a mediating procedure can
come into play, and its practical success is dependent on the authority of
the mediator. If the signiicance of the mediator’s proposal to intercede is
dependent on the power of the mediator, then a genuine mediation is no
longer present, but rather a more or less accepted political decision is. he
judge as such can never have power or authority that is independent of the
validity of the statute. Even without political power, a mediator or an arbitrator can continue to enjoy a more or less great personal prestige, though
only under the double presupposition that, irst, [134] certain ideas of appropriateness, dignity, or particular moral premises are common to the disputing parties and that, second, the opposing views have not yet reached
the most extreme degree of their intensity. his constitutes the boundary of
all judicial forms and of any arbitration efort. he state is not merely a judicial organization. It is also something other than a merely neutral member
of a conlict resolution body or an arbitrator. Its essence lies in the fact that
it reaches the political decision.
5. he problem of political justice. In disputes that must be decided
by the courts of general jurisdiction—civil, criminal, or administrative
courts—according to the factual circumstances or object of dispute; and if
a general judicial formality were to be fulilled; then the political character
of the disputed question or the political interest in the object of dispute
can emerge so strongly that the political distinctiveness of such cases must
be considered even in a bourgeois Rechtsstaat. his constitutes the actual
problem of political justice. his question does not at all involve settling
conlicts of political interests via a formal judicial procedure without regard
to the recognized norms of decision. herefore, it does not entail artiicially
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he Bourgeois Rechtsstaat
making these oppositions into legal disputes. Quite the contrary, because
of its political character a special procedure or order is provided for special
types of genuine legal disputes. Naturally, that emerges seldom in the realm
of private law adjudication, but it does certainly in criminal matters or in
disagreements with an object of dispute that has a public law character. It is
always a matter of the distinctive distortion of the judicial forms associated
with the Rechtsstaat. he issue, in other words, is the consideration of the
political character of legal disputes in reference to organizational or other
peculiarities, through which the Rechtsstaat principle of conformity to general judicial formality is weakened.
he following are the most important examples.
(a) Exceptional treatment of political crimes by criminal courts, in particular high treason and treason against a Land. According to German law
(for example, the Law on Court Organization § 134), the Reichsgericht is
in the irst and inal instance competent in cases of high treason, treason
against a Land, treason in wartime against the Reich as well as of the crime
against the §§ 1, 3 of the Law against the Betrayal of Military Secrets of 3 July
1914. In § 13 of the Law for the Protection of the Republic of 21 July 1922
(Reichsgesetzesblatt, I, p. 585), [135] a special Staatsgerichtshof was declared
to have jurisdiction over a series of political infractions, whose jurisdiction,
however, since 1 April 1926 (Law of 31 March 1926, RGBl. I, p. 190), is again
returned to the ordinary courts to the extent that the case involves criminal
matters.
In other states a second chamber has jurisdiction as a Staatsgerichtshof for special political trials, the model being the English upper house (which today, however,
has become powerless). Hence, Art. 9 of the French Constitutional Law of 24 February 1875 provides that, through an internal administrative decree of the state president, the Senate is established as a court of law (Cour de justice) and recognized as
competent in regard to charges that the Chamber of Deputies has raised against
the president of the republic or against a minister, additionally in regard to endeavors directed against the security of the state (attentats commis contre la Sûreté de
l’Etat). In this capacity, it has considered a few famous cases (Boulanger, Deroulède).
Other French constitutions provided a special Staatsgerichtshof for such cases,
thus, for example, the constitutions of the Year III (1795), of 4 November 1848, and
of 14 January 1852.
(b) Ministerial and presidential indictments raised by the popular assembly and decided either by a second chamber or by a special Staatsgerichtshof presuppose a legal obligation.
See, for example, Art. 59, which stipulates that “the Reichstag is authorized to
raise charges against the President, the Chancellor, and Reich ministers before the
Staatsgerichtshof for the German Reich, claiming that these oicials intentionally
violate the Reich Constitution or a Reich statute. he petition for the lodging of the
indictment must be signed by at least one hundred members of the Reichstag and
requires the consent of the majority prescribed for constitutional amendments.”
he Bourgeois Rechtsstaat
177
he details are regulated by the Reich Law on the Staatsgerichtshof of 9 July 1921
(Reichgesetzesblatt, I. 905). For an example of the jurisdiction of a second chamber
as a Staatsgerichtshof in petitions against ministers of the French Senate under the
Constitutional Law of 24 February 24 1875, cf. above under a.
he public law signiicance of the ministerial petition is displaced by the
parliamentary “responsibility” of ministers. As political responsibility, this
parliamentary accountability is often contrasted to “public law” responsibility (ministerial petition before a Staatsgerichtshof ). Nevertheless, in this
context, the word “responsibility” is imprecise and ambiguous (cf. below
§ 25, p. 320f ), and, above all in “public law terms,” it is not in contradiction with “political” responsibility. For nothing that afects the state can be
nonpolitical. A procedure, however, against a minister or president, which
is introduced through a parliamentary petition and is concluded by the
legally valid decision of a Staatsgerichtshof, is either an exceptional criminal proceeding or not adjudication at all. he regulation established by the
just cited Art. 59 is especially unclear and contradictory. A culpable violation of the Constitution or Reich statute is [136] discussed. he Constitution, therefore, is placed together with some “Reich statute” in a misunderstanding of its character. At least for a Reich minister, the consequence is
that a confusing assemblage of responsibilities comes into play. Along with
accountability under civil law and the general criminal law, which, for example, is grounded in high treason or treason against a Land, a “parliamentary responsibility” according to Art. 54 resides with the Reich ministers. Additionally, then, there is this responsibility regulated in Art. 59.
It no longer has a distinctive meaning today. Like some other provisions
of the Weimar Constitution, it exists only as a residue of the constitutional
circumstances under the constitutional monarchy. In comparison with the
criminal law procedure, it could at most serve political passions or express
goals, if it were to become practical at all. he case of the presidential petition is something else altogether. his did not become superluous in the
same way through “parliamentary responsibility.” However, even it has no
independent signiicance compared to a criminal proceeding because of
high treason or treason against a Land. Either it is a genuine case of political justice—then the jurisdiction of other courts must be excluded, and
it may not come to a double criminal proceeding under violation of the
principle “ne bis in idem.”—or it is not adjudication at all, which means one
should not choose a formal judicial procedure.
(c) Genuine constitutional disputes are always political disputes. On
their resolution, see above § 11, III, p. 112.
(d) Resolution of doubts and diferences of opinion over the constitutionality of statutes and decrees by a special court (Staatsgerichtshof, constitutional court, constitutional court of law, cf. above § 11, III 4, p. 117) is
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he Bourgeois Rechtsstaat
not a genuine trial outcome. It is, nevertheless, of interest in this connection because it contains a limitation on the general jurisdiction for court
review.
It is often termed a Rechtsstaat requirement that the courts review the constitutionality of the statutes they apply. See, therefore, H. Preuß in the constitutional
committee of the Weimar National Assembly, Protocol, pp. 483/4, where he appealed
to Gneist and designated the exclusion of the power of judicial review through Art.
106 of the Prussian constitution of 1850 as the “obvious reactionary victory over
the Rechtsstaat of 1848.” his stance still presupposes a quite unviable separation
of (constitutional) law and politics. Even the judge is in the “process” of political
“integration” (R. Smend), in which the political unity forms, and in particular a decision on “constitutionality” is [137] never a nonpolitical one. As Hofacker puts it,
“he question of constitutional review of statutes other than by legislative oices is,
in fact, a political question of extraordinary signiicance, as it afects the rank and
the dignity of the legislature. Such political questions cannot be resolved by legal
scholarship alone” (Hofacker, Der Gerichtssaal, vol. XCIV, 1927, pp. 221/2). Consequently, the statutes that transfer the decision to a special court of law often provide
that only certain top oicials or political bodies can appeal to this court of law. In the
case of Art. 140 of the Austrian federal constitution, for example, only the federal
government or the government of a Land can appeal to the “constitutional court of
law.” According to the Czecho-Slovakian statute of 9 March 1921 discussed above
(§ 11, III 4), only the highest court, the Supreme Court, the Supreme Administrative
Court, the Electoral Court, the House of Deputies, the Senate, or the KarpathoRussian Land Parliament can lodge a petition for a decision. Art. 13, 2, provides that
in regard to doubts and diferences of opinion over whether a Land legal provision
is reconcilable with Reich law, the competent central authorities of the Reich or of a
Land can call for the decision of a high court (according to the law of 8 April 1920,
Reichgesetzesblatt, p. 410, of the Reichsgericht). According to the 1926 draft of a
German Reich statute regarding the review of the constitutionality of Reich statutes and Reich decrees, the Reichstag, the Reichsrat, or the Reich government can
call for the decision of the Staatsgerichtshof. he draft, however, excludes contracts
with foreign states and the statutes that are contingent on them. his German draft
is noteworthy in that it does not exclude the competence of judicial review. On this
draft, besides the essay by R. Grau, Archiv des öfentlichen Rechts, new series 11,
1926, p. 287f., see above all F. Morstein Marx, Variationen über richterliche Zuständigkeit zur Prüfung der Rechtmässigkeit des Gesetzes, Berlin 1927, p. 129f., whose
discussions are of special interest because of their principled Rechtsstaat arguments
and (in reference to O. Bähr and R. Gneist) because he derives the “full competence
of judicial review” from the idea of the Rechtsstaat (p. 150). However, the institution
of a special court of law for decisions on the constitutionality of a statute reveals a
politically motivated distortion of the Rechtsstaat logic.
(e) Special treatment of government acts or speciic political acts in the
area of adjudication. In some countries, in particular France and the United
States of America, where review of executive acts by an ordinary court with
general jurisdiction or by an administrative court is permitted, the practice
led to the exception of government acts or “political acts” from this court
supervision, so that these acts escape any ordinary court or administrative
he Bourgeois Rechtsstaat
179
court review. he demarcation of the political from other acts is certainly
controversial. A deinite, automatic distinguishing mark of the “government act” did not previously result in the aforementioned practice.
See Jèze, Les principes généraux du droit administratif, I, 3rd ed., 1925, p. 392,
who views the distinction only as a matter of the “opportunité politique,” and R. Alibert, Le contrôle juridictionel de l’administration, Paris 1926, p. 70f. here is additional literature in R. Smend, “Die politische Gewalt im Verfassungsstaat und das
Problem der Staatsform,” Festgabe für Kahl, Tübingen 1923, p. 5f. [138]
(f ) Electoral reviews of the politically most important elections (elections to parliament or for the head of state). he review of elections in itself
belongs in the realm of administrative adjudication. Electoral review is
organized in a special manner only because of the political signiicance of
the most important elections. For historical reasons, review of parliamentary elections is often turned over to parliament (thus Art. 27, 1a). Often,
however, a special electoral review commission is also formed,1 which is
composed in a diferent way, in order to be fair both to the objectivity of the
electoral review and, at the same time, to the special political interest of this
process.
See, for example, Art. 31, which stipulates that “in the Reichstag an Electoral
Review Commission is formed. It also decides the question of whether a deputy has
lost member status.
he Electoral Review Commission is composed of members of the Reichstag,
which selects them for the election period, and from members of the Reich administrative court, which the President orders on suggestion of the presidium of this
court.”
his Electoral Review Commission, formed for the Reichstag, also examines the
results in the election of the President. See § 7 of the Law on the Election of the
President of 6 March 1924 (Reichgesetzesblatt I, p. 849).
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he Bourgeois Rechtsstaat
§ 13.
he Rechtsstaat Concept of Law
I. Law and statute in the bourgeois Rechtsstaat.
1. he bourgeois Rechtsstaat is based on the “rule of law.” To this extent,
it is a statutory state. But the statute must retain a connection with the
principles of the Rechtsstaat and of bourgeois freedom, if the Rechtsstaat is
to remain in place. If everything that some person or an assembly dictates is
without distinction law, then every absolute monarchy is also a Rechtsstaat,
for in it the “law” rules, speciically the will of the king. he current Soviet
Republic and the dictatorship of the proletariat would also be a Rechtsstaat,
for there is even a legislature and, consequently, laws. If the “rule of law”
should retain its connection with the concept of the Rechtsstaat, it is necessary to incorporate certain qualities into the concept of the law, through
which it is possible to distinguish a legal norm from a command based on
mere will or a measure.
Professors Alexejew (cf. Jahrbuch des öfentlichen Rechts, XIV, 1926, p. 326) and
Timaschef treat the Soviet Republic as a state in which there is written and [139]
settled law that does not, however, have the character of the statute. On this, see
the especially interesting remark of Mirkine-Guetzevitch, Revue du droit public, 42
(1925), p. 126: the norms of a class dictatorship are not laws, because fact has priority
over right; that is not a form of “legality.” Obviously, in any case, not every measure of the competent legislature can be “law,” if a connection between the concept
Rechtsstaat and the rule of law is to exist.
2. Bourgeois freedom and all the individual, organizational marks of the
Rechtsstaat developed above (§ 12, II, p. 129) presuppose a certain concept
of law. “Rule of law” is an empty manner of speaking if it does not receive
its actual sense through a certain opposition. his fundamental idea of the
Rechtsstaat contains, historically as well as intellectually, the rejection of
the rule of persons, whether it is an individual person, an assembly, or body
whose will takes the place of a general norm that is equal for all and is determined in advance. he rule of law means above all and in the irst place
that the legislature itself is bound by its law and its authority becomes legislation, not the means of an arbitrary rule. he bond of the legislature to the
law, however, is only possible so long as the statute is a norm with certain
properties, such as rectitude, reasonableness, justice, etc. All these properties presuppose that the statute is a general norm. A legislature, whose individual measures, special directives, dispensations, and legal ruptures are
just as valid as its statutes containing general norms, cannot conceivably be
bound by its own statutes.
he bourgeoisie struggling for its freedom and its Rechtsstaat adopted a concept of law that rests on an old European tradition and was brought to the modern
age from Greek philosophy by medieval scholasticism. Law is not the will of one
or of many persons, but rather something generally reasonable; not voluntas, but
rather ratio. his is valid without distinction of state form for monarchy, aristocracy, and democracy. Consequently, Aristotle distinguishes a democracy in which
the law (νόμος) rules from another type of democracy, in which popular decisions
(ψηφίσμτα) and not the laws rule. “In democracies,” he argues, “that are bound to the
law, no demagogues emerge. Instead, the most capable citizens have the chair. However, where the laws do not have the highest authority, demagogues arise. For there
the people become a monarch, speciically a many-headed one” (Politics, bk. IV,
chap. 4, nr. 4). Even for homas of Aquinas, law is a “rationis ordinato” in contrast
to the will of the individual that is darkened by passions [140] or of a mass of persons. On the development in the sixteenth and seventeenth centuries, see Gierke,
Althusius, p. 280f. Suarez traces the bond of the legislature to its own laws back to
the fact that they represent this one “regula virtutis” that is derived from the “ius
naturale” by reason, which consequently is also valid for the legislature, because it
is self-evident that a mere act of will cannot be binding when the legislature enacts
something diferent.
he proponents of state absolutism presented the clearest contrast to this
Rechtsstaat concept of law. Hobbes coined the classical formula here: auctoritas,
non veritas facit legem (Leviathan, Ch. 19). he law is will and command, not a wise
council. It is valid merely as command, not by virtue of moral and logical qualities.
he awareness about the Rechtsstaat concept of law became stronger in the struggle
against this absolutist concept of law and the principle of the representatives of
absolutism, speciically, that the prince is legibus solutus. he Monarchomachs reairmed this Rechtsstaat principle (cf. Gierke, Althusius, p. 280). And even in England, Rechtsstaat consciousness did not disappear despite the alleged omnipotence
of the English Parliament. Locke provides the classic Rechtsstaat formulations and
speaks of previously established positive laws (antecedent, standing, positive laws),
while all ex post facto laws are contrary to law. What can happen absent a norm
(without a rule), because it is dependent on circumstances, is not a part of legislation (cf. the evidence in Diktatur, pp. 41/2). According to Bolingbroke, the true
state is established like the cosmos. Led by an all-wise being and governed by another that is all-powerful, the order of the cosmos rests on the linkage of wisdom
and power, which means for him legislative and executive, that is, parliament and
monarch. he parliament issues laws, which should be valid without exception. he
parliament is the wisdom of the state,1 and it prescribes rules for the power of the
king. Neither god nor the king can violate a law (Phil. Works, V, p. 147). Like Locke,
Montesquieu justiies his theory of the separation of powers by stating that if the
same body that issues statutes also controls the executive, then it could destroy the
state through its volontés générales; and as the executive, moreover, it could annihilate any individual citizen through its volontés particulières (bk. XI, chap. 6 of the
“Esprit des lois”); the separation of the legislative and executive branches should stymie this linkage of general norms and discrete individual commands; a government
is despotic when it “can issue discrete individual commands without being bound
by general, stable, and enduring laws.” his idea of the subordination to a general,
“inviolable” norm, which is capable of a genuine bond (according to the expression
of Otto Mayer), is the cornerstone of all Rechtsstaat thinking. It reveals itself in the
legal deinition of the Girondists’ draft constitution of 1793, Section II, Art. 4: les
caractères qui distinguent les lois sont leur généralité et [141] durée indéinie, while
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he Rechtsstaat Concept of Law
the decrees are determined by local and particular application and by the necessity
of a periodic or occasional renewal. his constitution, moreover, recognizes measures (mesures). In particular, the actions of the state of exception in Art. 7 are designated as such measures.
he German state theory of the eighteenth and nineteenth centuries retained
this concept, so long as it was still conscious of the principles of the bourgeois
Rechtsstaat. For Kant, a government” that was simultaneously a legislative branch,
and a legislature that would at the same time engage in government acts, is “despotic.” Kant’s thinking is entirely in line with that of the Rechtsstaat with a separation of powers, in which the “law itself is dominant and not a particular person”
(Zum ewigen Frieden, 2d section, 1., “Deinitivartikel,” Vorländer ed., p. 199; Rechtslehre, part II, Das öfentliche Recht, Beschluss, Vorländer, p. 186, etc.). Also for Hegel,
the law is the current truth in a general form (Rechtsphilosophie, p 210). he legislative power expresses the general, the executive the particular (p. 358). he political
avant-garde and the juristic theorists of the Rechtsstaat also presuppose unconditionally the general concept of law. “he law,” as R. Mohl puts it, “is an establishment
that is essentially meant to last for the long-term. In regard to any of these types of
formal law (constitutional statute, simple statute), the generality of the command
is an essential property. Regulation of a certain legal case through a special statute
is not permitted to the extent it involves an accomplished fact. Consequently, the
already existing fundamental principles are deinitive.” Lorenz von Stein states in
his Verwaltungslehre (1st ed.1865, p. 78) that “according to its higher essence, the
statute always stems from the entire consciousness of state life and, therefore, also
always intends to achieve its goals.” “On the one hand,” he continues, “the statute
intends to grasp similarity in all factual relationships and deine the will of the state
precisely for this similarity in all its diferent forms.” he statute, consequently, must
determine “all its objects similarly and in a uniied way.” he decree, by contrast,
takes its point of departure above all else from the factual situation, “speciically,
from its distinctiveness and its changing character.” Even in Rudolf Gneist, both in
his “Rechtsstaat,” 1872, as in other writings of this liberal avant-garde ighter for the
Rechtsstaat idea, the concept of the statute as a general, stable norm, in contrast to
individual orders and statutory violations of the law, is always presupposed, whether
or not it may be ordained by the will of an absolutist prince or by the majority decision of a parliament.
3. he Rechtsstaat concept of law, therefore, stands in a certain tradition.
One may easily add to the examples just introduced.2 Because natural law
lost its evident quality, the diferent properties [142] of the statute (justice,
reasonableness) under consideration now became problematical. Even the
appeal to “good faith and credit” as a general legal principle (thus the announcement of the committee of the judges’ association of the Reichsgericht against the power claims of the legislature, Juristische Wochenschrift
1924, p. 90) cannot substitute for these natural law convictions in politically and economically diicult times. But a property cannot be renounced
without displacing the Rechtsstaat itself, without, in other words, giving up
the general character of the legal norm. Herein lies the last guarantee of the
traditional Rechtsstaat distinction of law and command, of ratio and will,
and with it the last residue of the bourgeois Rechtsstaat’s ideal foundation
he Rechtsstaat Concept of Law
183
generally. When H. Triepel criticizes the misuse of the legislative authority
of the Reichstag by stating that “the statute is not sacred, only justice is, for
the law is subordinate to justice” (Festgabe für Kahl, 1923, p. 93), the consciousness of this long-established Rechtsstaat tradition expresses itself.
However, the opposition is not that of law and justice, but rather that of
a properly understood concept of law in contrast to a helpless formalism,
which designates everything as law that results from the procedure prescribed for legislation. It is thus also factually justiied, yet still subject to
misunderstanding owing to its manner of expression, when J. Goldschmidt
forms the word “nomocracy” for the struggle against the misuse of the
legislative power ( Juristische Wochenschrift 1924, p. 245f.). hat which is
directly lacking is the nomos, and the misuse lies in the failure to recognize
what remains as a minimum of the traditional rational concept of a genuine
statute, in the failure to recognize the general character of the legal norm.
Everything that one can say about the rule of law or the rule of the norm, all
turns of phrase about the “normative quality,” are in themselves contradictory and confused, if this general character is given up and any conceivable
individual command, any measure can be valid as a “norm” or a “statute.”
[143]
II. he so-called formal concept of law. he problem of the Rechtsstaat concept of law is made more diicult by the fact that the Rechtsstaat
component of a constitution is not itself suicient and that alongside the
Rechtsstaat concept of law stands a political one.
Before this duality of the concept of law can be considered, however, the
distinctiveness of the so-called formal concept of law must be clariied. For
the concept of law and the Rechtsstaat are much obscured, because one
transfers the legislative procedure and jurisdiction to state acts other than
legislative ones for political reasons and on account of the force of necessity. his produces the concept of “formal law,” which then appears as an
opposition to “material law.”
1. he consequence for the formal concept of law is law becomes that
which is issued by the oices authorized for legislation and in the prescribed procedure for legislation. A delegation and expansion of jurisdictions and procedures is in itself nothing unusual, and a formalization of the
concept is not itself disadvantageous. For example, it is possible to apply
the decision-making procedure for legal disputes to other matters, such as
disputed elections or criminal exonerations. hen one can speak of a “legal
dispute in the formal sense” and say that election review or criminal exoneration is a legal dispute. More generally, one could designate all oicial
business as “adjudication” that a judge settles under the protection of judicial independence, etc. With that type of formal deinition, one comes out
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he Rechtsstaat Concept of Law
well in individual areas of legal practice. Such deinitions have the practical
value of a useful technical means of assistance in a very restricted context.
For a criminal law judge or a forest oicial, for example, the question can
arise as to which animals are designated as “wild,” and it can be practical to
answer that those animals are wild which someone with a hunting license,
exercising his right to hunt, is entitled to kill outside of the statutory closed
season. Or an oicial of the public grain company could deine bread as
that which the possessor of a bread card is entitled to obtain on the basis
of his bread card, etc. In this way, there arises a series of formal conceptual
deinitions that have a certain technical-practical meaning, and with them
one can work in a specialized practice area up to a certain point. hey are,
in fact, [144] not conceptual deinitions, but rather partly abbreviations,
partly ictions, and have the relative and limited value of such abbreviations
or ictions. However, it would be absurd to see this as the distinctive juristic
method in this and to believe that a serious problem of jurisprudence permits itself to be handled scientiically in such a manner.
2. hat is most valid for constitutional provisions. If it is characteristic of
the organization of the constitutional monarchy that a statute comes about
only in consultation with the popular assembly; and if the popular assembly
struggles to extend the scope of its consultative powers and to participate
in all possible politically important acts, approval of taxes, proposal of the
yearly budget, declaration of the state of siege, declaration of war, appointments, pardons, concessions on important business enterprises, incorporation of an administrative area into another, territorial changes, etc.; then it
is a simple sleight-of-hand of linguistic technique and nothing more when
it is constitutionally stipulated that such political acts come about “in the
form of the statute,” or when by way of custom it is established that for such
acts the legislative procedure is used. he meaning and signiicance of the
“formal” concept exhausts itself in the fact that the popular assembly (the
parliament) nevertheless has the same participatory role in and jurisdiction for such acts as it does in legislative acts, although they are not acts of
legislation. Just as one can settle any conceivable issue “according to judicial
forms,” one can also do so “in the form of a statute.” he formal element
does not have any signiicance at all as such. It is to be viewed as “form” not
in some special or eminent sense, but rather only as an abbreviating deinition for an extraordinary expansion of the jurisdiction of certain oices.
he legislative process, therefore, can be extended to matters other than
acts of legislation through express constitutional provision or by the exercise of customary law. he Weimar Constitution contains a series of examples that partly correspond to the typical constitutional regulation of
modern states and that are partly new and distinctive.
he Rechtsstaat Concept of Law
185
For examples, see the following provisions. Art. 85 provides that “the budgetary
plan is established by statute before the beginning of the budgetary year.” Art. 87
stipulates: “Funds in the form of credits may be established only in cases of dire need
and, as a rule, only for expenditures for recruitment purposes. Such an establishment as well as assumption of a security service by the Reich may only be pursued
on the basis [145] of a Reich statute.” “he alteration of the territory of Lands and
the new formation of Lands within the Reich,” according to Art. 18, I, 2, “take place
through a constitution-amending Reich statute.” Under Art. 45, 3, the “declaration
of war and conclusion of peace require a Reich statute.” Art. 51, 1, provides that “in
case of incapacitation, the Chancellor will initially substitute for the President. If the
incapacitation lasts for longer than anticipated, a Reich statute regulates the substitution.” “he Reich via statute,” according to Art. 156, 1, “can execute a transfer of
expropriated private economic enterprises into common property without needing
to pay compensation for socialization during the application of the valid provisions
for expropriation, broadly understood.”
However, nothing further results from such extensions and delegations
of authority than that, constitutionally or in terms of customary law, oices
authorized for legislation complete certain actions through the legislative
process. It would be more than unrelective to draw the additional conclusion that the oices with jurisdiction for legislation could thus settle anything conceivable in the form of a statute and do so without restraint. It
would be equally thoughtless to conclude that everything these oices touch
with the magic wand of the legislative process are now transformed into a
statute, so that the “rule of law” means nothing more than the rule of the
oices entrusted with legislation. Such a result would be just as illogical as
using the formal concept of adjudication to give the judge a boundless grant
of authority and to remove him from any control, for example, empowering him to address cases without a genuine legal dispute, the so-called uncontested legal proceedings, all under the cover of judicial independence.
It is self-evident that despite this expansion of his jurisdiction, the judge
can only handle such matters that, in fact, are either acts of the judiciary or
for which its jurisdiction is expressly justiied. No one will assume that he
may undertake some governmental act merely because it is cast in the form
of a trial and can do what he considers necessary simply by relying on his
independence. For the formal concept of law, however, this simple factual
situation seems hardly to have been noticed. G. Jellinek (Gesetz und Verordnung, p. 232) states that “all forms by means of which a person is capable
of afecting others are at the disposal of the state.” he writings of Laband
(Staatsrecht II, p. 63) are even more remarkable and characterized by the
absence of any Rechtsstaat consciousness. [146] “hrough a statute,” he argues, “a pending legal dispute can be decided, the validity or invalidity of an
act of the government can be expressed, an election can be recognized and
nulliied, a pardon or amnesty can be issued. In a word, there is not an object of the entire state life, indeed, one can say, not even an idea that cannot
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be made into the contents of a statute.” hat is completely wrong-headed.
And if it is understood and intended, as unfortunately tends to occur without proper relection, that legislative oicials can empower themselves for
anything if it is given the form of a statute, then that is improper and false.
Apart from the previously discussed delegations that require a special constitutional title, the legislative process comes into consideration only for
statutes understood in the sense of the Rechtsstaat.
III. he political concept of law. he possibility of the confusion of this
so-called concept of law is explicable above all in reference to the fact that
there is a political concept of law, which stands independently alongside
the Rechtsstaat concept of law. he expression “political concept of law” is
not meant as a contradiction to a juristic concept of law. Juristically, that
is, for legal scholarship and in particular for a constitutional theory, both
concepts of law are objects of scholarly treatment in the same way. Both
concepts of law are part of a modern constitutional theory, because there
is not a modern constitution without both of these diferentiated components, the Rechtsstaat and the political elements, to which the dualism of
both concepts of law correspond. In this context, “political” means a concept of law that, in contrast to the Rechtsstaat, results from the political
form of existence of the state and out of the concrete manner of the formation of the organization of rule. For the Rechtsstaat understanding, the law
is essentially a norm. It is, speciically, a norm with certain qualities, a legal
(an appropriate, reasonable) rule of a general character. Law in the sense of
the political concept of law is concrete will and command and an act of sovereignty. Law in a state conforming to the monarchical principle is, consequently, the law of the king. Law in a democracy is the will of the people; lex
est quod populus jussit. A logically consistent and complete Rechtsstaat aspires to suppress the political concept of law, in order to set a “sovereignty
of the law” in the place of a concrete existing sovereignty. In other words, it
aspires, in fact, to not answer the question [147] of sovereignty and to leave
open the question of which political will makes the appropriate norm into
a positively valid command. As noted (p.108), this must lead to concealments and ictions, with every instance of conlict posing anew the problem
of sovereignty. he point of departure in this regard is that alongside the
Rechtsstaat concept of law, moreover, together with the juristic-technical
aid of the so-called formal concept of law, there is still a political concept of
law, which is not capable of eliminating the Rechtsstaat element.
1. When the liberal bourgeoisie intended to achieve its Rechtsstaat ideal
in the nineteenth century, it could not be satisied with setting up legal principles and norms against absolutism. In opposition to the concrete existing
state institutions of the monarchical principle, it had to demand just as concrete, diferently constituted political institutions. One struggled not only
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187
for the Rechtsstaat in abstracto, but above all for the rights of the “popular
assembly,” in particular, for an expansion and extension of the authorizations and competencies of parliament. Ultimately and politically, that led to
democracy. One could see the organizational guarantee of the Rechtsstaat
relected in diferent institutions. Together, however, they also led to the
fact that there was a demand for the popular assembly having the most farranging consultation power possible. hat corresponded to the natural direction of a political struggle against a strong monarchical government. In
such a political position, each of the diferent demands—Rechtsstaat concept of law and widest possible consent power for the popular assembly—
had to bind themselves together. As long as the princely government itself
was still so strong that its power constituted a danger for the Rechtsstaat,
the diversity of these two demands was hardly recognized and a blending of
two diverse concepts of law occurred—the Rechtsstaat concept of law as a
norm characterized by certain qualities and the democratic concept of law
as the will of the people—whereby at that time the people were replaced,
entirely self-evidently and for the most part tacitly, by the will of the popular assembly, of the parliament. he popular assembly’s consent power is of
course understood only as a distinguishing characteristic of the concept of
law, which was derived from the political-democratic concept of law. [148]
2. A concept of law, which is valid as a “substantive” concept of law, also
has a political character, because it is not a “formal” one. According to Anschütz, law is a legal norm, a provision through which the state turns itself
toward its subjects, “in order to establish the boundaries of the permissible and the required that exist between itself and its subjects. For it is
the essence of any law in the substantive sense that it sets limits to personal freedom in general, to property in particular” (Anschütz, “Gesetz,” in
Stengel and Fleischmann, Wörterbuch des Staats- und Verwaltungsrechts,
II, p. 215). Anschütz argues that there was “at the time, 1848, as was the case
previously and is today, only a substantive concept of law that . . . intends
to deine and actually deines the ‘freedom and property’ formula.” Article
62 of the Prussian constitution of 31 January 1850 (“the legislative power
is exercised in common by the king and by two chambers”) presupposes
it. his means that it requires a statute developed in consultation with the
popular assembly to make incursions into freedom and property and that a
royal decree is not a suicient basis for such incursions. In order to understand this concept of law (statute = limitations of freedom or property), it is
necessary to take account of the political circumstance from which it arose.
In the political struggle against a strong royal government, the consultation
power of the popular assembly as the law’s deining characteristic must be
ever more strongly emphasized and, in the end, be deemed deinitive. If the
popular assembly’s consent power is, above all, politically a part of the law,
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he Rechtsstaat Concept of Law
the politically simple, although logically false reversal, becomes explicable.
What comes about with the consent of the popular assembly is a law. he
rule of law then means the consent of or ultimately rule by the popular assembly. he bourgeoisie attempted to protect itself against intrusions into
personal freedom and private property, and, as something characteristic of
the Rechtsstaat, it raised the demand that such intrusions may be undertaken only on the “basis of a statute.” A component of the law in this sense
is, indeed, the consent power of the popular assembly, in other words, the
representation of those afected by the previously mentioned intrusions.
A decree issued by the king, by contrast, whether or not it otherwise may
be just, reasonable, and appropriate and corresponds to all the qualities of
a true legal norm, would not be considered law. “Politically,” G. Holstein
argues, “the liberal movement pursued a double goal. First, it attempted
to achieve deining inluence on the formation of political will [149] of the
state totality, but it also protects the sphere of individual freedom of the
citizens, which still remains an object of state action. he liberal movement
considered both goals realized when it guaranteed the commensurate inluence for the popular assembly on the lawmaking process (Holstein, “Die
heorie der Verordnung im französischen und belgischen Verwaltungsrecht,” Bonner Festgabe für E. Zitelmann, 1923, p. 362). he primary interest
of the public law literature thus revolves around this political distinction
between statute and decree. One attempted “to regulate by statute all collisions of the state power with persons and property,” although R. Gneist
(Rechtsstaat, p. 159) already correctly recognized that the boundary between statute and decree is to a great extent random. He also recognized
that in no state did statute regulate all intrusions into personal freedom and
property. he political situation demanded a simple formula in order to demarcate the boundary between statute and decree, in particular, the power
of the popular assembly from that of the king. he fundamental, qualitative
criterion of the Rechtsstaat concept of law was lost because of this interest
in a secondary, though politically useful, criterion of the Rechtsstaat concept of law. he book by G. Jellinek, “Gesetz und Verordnung” (1887), discussed above, is an example of this displacement of theoretic interest.
In the constitutional struggles of the nineteenth century, therefore, it was
a matter of establishing that intrusions into freedom and private property
may be undertaken “only on the basis of a statute.” Also in this regard, the
politically simple, but logically false, reversal occurred again. Law is an intrusion into freedom and private property. For example, all of G. Anschütz’s
discussions of the “substantive” concept of law assumes this perspective.
hese discussions rest on the correct recognition that every constitutional
regulation of legislative authorizations presupposes a substantive concept
of law. However, they understand this presupposition not in the genuine
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189
Rechtsstaat sense of the concept of the law as a norm with certain qualities,
but rather in the sense of the just discussed political concept. Naturally,
intruding on freedom and private property cannot be the direct essence of
the statute, for all other possible acts, permissible and impermissible, do so
as well. he issue concerning this concept of law at the time, 1848, was only
to secure constitutionally the popular assembly’s consent power in regard
to such intrusions and to prevent the princely government from undertaking such intrusions by way [150] of decree without participation by the
popular assembly. he actual Rechtsstaat guarantee consists in the fact that
such intrusions may be undertaken only on the basis of a statute, whereby
the statute corresponds to certain substantive qualities. In the context of
the political struggle, the diferently constituted political-democratic guarantee, which consisted in the popular assembly’s consultation power and
was directed against princely absolutism, allied itself with this Rechtsstaat
guarantee. he Rechtsstaat guarantee directs itself against every absolutism and places substantive limits on any political concept of law, be it monarchical or democratic. It does so by assuming that for any legislative intrusion into freedom and property to be considered law, it must contain a
norm with certain qualities. In the reality of the political conlict, however,
it was always only a struggle against the absolutism present at that time.
Consequently, the struggle against the monarchial absolutism existing in
1848 meant a ight for democracy.
3. he ideal of the Rechtsstaat remains in place to thoroughly comprise
all possibilities of state action in a system of norms and, through it, bind
the state. In practical reality, however, a system of apocryphal acts of sovereignty forms (above § 11, II, p. 108). If this practice is generally recognized
today in all manifestations of the bourgeois Rechtsstaat, that lies not in an
intentional constitutional regime, but rather in the fact that a political concept of law proves itself stronger in opposition to the Rechtsstaat concept of
law. In the sense of democratic constitutional law, for example, it is logically
consistent that the popular assembly undertakes such acts of sovereignty,
so long as it can identify itself with the people without contradiction. he
respect for the Rechtsstaat concept of law seeks to express itself in the fact
that the forms of a constitution-amending statute (Art. 76) are respected.
In terms of constitutional theory, however, it is necessary to diferentiate
between them here, and in practical terms the distinction is also meaningful. Above all, it is meaningful because in a democracy that is established
in a logically consistent way one must become aware of the actual implications and obviously because the electorate, instead of the parliament, establishes itself as the bearer of the political will. [151]
IV. he meaning of the general character of the legal norm.
he organizational achievement of the Rechtsstaat depends on preserv190
he Rechtsstaat Concept of Law
ing the legal norm’s general character. In the central presupposition, not in
organizational details, lies what one can designate, using Rudolf Gneist’s
expression, the “Archimedean point of the Rechtsstaat.”
1. he system of the so-called division, or rather the separation of legislation, administration, and adjudication from one another, is only meaningful as long as the law is understood as a general norm. When on the basis
of a constitutional rule certain state posts are authorized to issue laws in a
special procedure, a concept of law is already self-evidently presupposed.
Politically, it would be a misuse of the term statute, and, logically, it would
be the equivalent of a magic trick, to reverse the relationship between law
and general norm by simply designating as law (“law in the formal sense”)
anything that oicially authorized legislative bodies produce via the legislative process. he concept of law in the formal sense, as shown above (II),
has a relative and limited legal status. However, it is also impermissible to
forget the substantive presuppositions of the distribution of jurisdiction
among legislation, administration, and adjudication. When constitutional
law makes provision for who should legislate, obviously that does not mean
that this legislature should use the procedure for legislation in order to
conclude trials or to undertake administrative acts and governmental actions. In a Rechtsstaat, “the law” should rule, and the entire state activity
stands under the statutory reservation. he oices authorized for legislating should be directly prevented from establishing, in place of the rule of a
norm, their own rule enabling them to no longer distinguish any given individual commands, measures, and orders from “statutes.” A merely formal
concept of law, such as that law is anything the lawmaking bodies ordain
via the legislative process, would transform the rule of law into an absolutism of legislative oices, and any distinction of legislation, administration,
and adjudication would be eliminated. If that were valid constitutional law
today, the entire Rechtsstaat struggle against the absolutism of the monarch would be ended in the sense that [152] the multiheaded absolutism of
the transitory partisan majority would replace monarchical absolutism.
2. he distinctive construction of the Rechtsstaat protection rests on the
distinction of the general statutory regulation and the application of these
rules by the judge or an administrative oicial. he intrusion into freedom
and property occurs not by a statute, but rather on the basis of a statute. In
state practice, the guarantee of private property, for example, as one of the
foundations of the bourgeois Rechtsstaat, developed into a right to expropriation, whose meaning erodes if the distinction between general statute
and specialized statutory application erodes. he regulation of the law
of expropriation generally determines under which presuppositions and
through which procedure expropriation is permitted. his general norm is
applied to the concrete case, and the expropriation is carried out by an act
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191
of administrative oicials (distinct from the legislative branch). he statute
is the basis for, the general presupposition of, but not the instrument of the
expropriation. For this reason, the guarantee of the liberty rights of individuals includes over and over again the turn of phrase that an intrusion
into the guaranteed sphere of freedom is permissible only on the basis of
statutes. Art. 114, for example, provides that “the freedom of the person
is inviolable. An infringement on or deprivation of personal freedom by
public authority is only permissible on the basis of statutes.” Or take Art.
115, which stipulates that “the living quarters of every German is for him a
sanctuary and is inviolable. Exceptions are permissible only on the basis of
statutes.” In the same manner, Art. 153 reads that “the expropriation may
occur only on a statutory basis.” his provision rules out the possibility
that the concrete intrusion, such as the act of expropriation itself, assumes
statutory form and, for example, that an expropriation takes place through
a law in the formal sense. Should such a “statute” be permissible as an exception, the turn of phrase “by statute” is being used appropriately. For example, it is constitutionally mandated in Art. 156 that in the socialization of
individual economic enterprises, the Reich can transfer expropriated private economic enterprises into common property by statute.
Cf. the examples above II, 2, pp. 144/45. With regard to the law of expropriation,
M. Layer, “Principien des Enteignungsrechtes,” Leipzig (Staats- und völkerrechtliche
Abhandlungen, ed. by G. Jellinek and G. Anschütz), 1902, p. 177, remarks:“absolutism
has certainly taken it thus far (that in particular the public interest was the legal
ground [153] for the expropriation). However, now it is a statutory norm, and that
is already a great diference.” A theoretically and practically interesting instance of
this Rechtsstaat distinction between statute and statutory application is found in
§ 2, 4, of the Prussian mining law of 24 June 1865 and 18 June 18 1907. See BrassertGottschalk, Kommentar zu diesem Berggesetz, 2d ed., 1913, p. 34, on the deliberations concerning § 2, 4. he house of deputies intended to select this version: “he
application takes place by statute.” It was altered in the upper house at the suggestion of Dernburg, who suggested that “the application order occurs by statute,
because there are practical as well as even constitutional doubts in always regulating application by statute and thereby intruding in the jurisdiction of state executive power.” See Stenographische Berichte 1907, pp. 294, 341f. he formulation
“on the basis of a statute” (in contrast to “by statute”) is simply essential for the
Rechtsstaat-type elaboration of the law of expropriation, and the manner of expression of § 164 of the Frankfurt constitution of 28 March 1849 is characteristic of this:
“An expropriation can only be undertaken out of regard for the common good, only
on the basis of a statute, and in exchange for just compensation.” It is symptomatic of the dissolution of the bourgeois-Rechtsstaat consciousness that that type of
clear expression was no longer understood and that not one of the commentaries
on the Weimar Constitution as yet distinguishes an expropriation on the basis of
a statute from an expropriation by statute. Even such an insightful and, moreover,
Rechtsstaat-minded jurist as Richard Grau has resisted the attempt to restore the
traditional and self-evident distinction (Carl Schmitt, Unabhängigkeit der Richter,
Gewährleistung des Privateigentums, Gleichheit vor dem Gesetz, Berlin 1926) and to
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he Rechtsstaat Concept of Law
contradict the claim that the constitutional regime of the Weimar Constitution was
also intended to provide the Reich a substantive law of expropriation (“Der Vorrang
der Bundeskompetenz,” Festschrift für Heinitz, 1926, p. 403). For this purpose, he
refers to a statement in the Protocols, p. 74. he expression of the deputy Delbrück
reproduced there states only that it could be necessary in many cases, “for example,
if a railroad should go through more states,” to regulate the substantive law of expropriation through Reich legislation, whereby “substantive law of expropriation”
obviously means something other than the authority to undertake the concrete
act of expropriation. hen, Delbrück also continues to speak entirely self-evidently
only of “statutory regulation.” In this context, Beyerle suggests assigning the law
of expropriation to Reich legislation only so far “as there is a need for the issuance
of equivalent Reich provisions.” He even speaks here only (with the assent of Delbrück) of the Reich as legislature. M. Spahn states that “the law of expropriation
must be regulated unconditionally in a uniied manner, above all in regard to the
question of compensation.” he misunderstanding of Grau is very characteristic
precisely in its confusion of substantive law of expropriation with the concrete act
of expropriation.
3. Under the Weimar Constitution, the distinction of law from acts of
the administration or of the judiciary receives an even more special meaning, because the Constitution preserves elements of the federal state in the
organization of the German Reich. he Weimar Constitution distributes
competencies between Reich and individual German Lands such that in
its irst section it initially designates the objects for which the Reich has
jurisdiction in terms of legislation. In regard to administration, by contrast,
it adheres to the fundamental principle of Art. 14, under which “Reich laws
are executed by the oicials of the individual German Lands [154] to the extent that Reich statutes do not provide for something else.” In a federal state
organization, where the distribution of jurisdictions between the Reich and
the individual state is not fully regulated in terms of subject matter, but
rather diferently according to whether it involves legislation, administration, or adjudication, a complete destruction of the constitutional system
would result if the Reich legislature with the jurisdiction over an issue could
misuse the form of the statute for any given individual measure, administrative act, decision, etc.
According to Art. 7, 16, for example, the Reich has the legislative jurisdiction for
mining. hrough this provision, it receives the authority to issue a mining statute.
For instance, it can eliminate the Prussian mining statute of 24 June 1865 while it
issues a Reich mining statute, but nothing else. It cannot intervene “by law” in the
form of a Reich statute in the mining authority of the states [Lands] in the individual
case and, in an individual state (apart from the explicitly permitted case of Art.
156), for example, order the granting of a mining concession for a particular mine
installation. It received no mining authority in general. Nonetheless, it acts within
its jurisdiction in regard to railroad legislation according to Art.7, 19. he legislative
competence for the railroad system does not establish a railroad authority, which,
rather, is established in Art. 90. he issuance of a single order in the area of administration does not, consequently, also constitute a “utilization” of the legislative right
he Rechtsstaat Concept of Law
193
in the sense of Art. 12, but, depending on the circumstances, it is a violation of Art.
15. Against the misuse of legislation for supervisory purposes, see H. Triepel, Die
Reichsaufsicht, 1917, p. 129.
4. he bourgeois Rechtsstaat is based on the freedom and the equality
of state citizens. hat the concept of bourgeois freedom presupposes the
concept of law denoted here as pertaining to the Rechtsstaat was discussed
above under 2. But also the correctly understood concept of equality leads
to the same understanding of the statute. Today, almost every constitution
states that all state citizens are “equal before the law.” he Weimar Constitution has expressed this principle in Art. 109, 1: “All Germans are equal
before the law.” Equality before the law means not only equal application
of a statute that has already been issued, but also protection against statutory violations of the law, dispensations, and the granting of privileges, regardless of their form. From the extensive range of disputed questions to
which the principle of the equality before the law led, only one is of interest
here. Equality before the law is immanent to the Rechtsstaat concept of the
law. In other words, law is that which intrinsically contains equality within
the limits of the possible, therefore a general norm. here is no equality
before the individual command because, in terms of content, it is entirely
determined by the individual circumstance of the single case, while the law
[155] in the sense of the Rechtsstaat means a normative regulation, which is
dominated by the idea of justice, and under which equality means justice.
he properly understood concept of equality is bound up with the correctly
understood concept of law. Hence where special commands or mere measures are concluded, there is no law and no equality. he order that Mr. X
is to be expelled from the Land is not something in reference to which one
could reasonably speak of “equality.” It involves only an individual, particular person, a single factual situation, and exhausts itself in this command.
Faced with the concrete command that Mr. X is to be expelled from the
state, it is entirely nonsensical to say that all Germans could be expelled
equally as well. Neither Mr. X, whom this command afects, nor some other
persons who are not afected by it could be termed “equal” here. Equality is
only possible where at least a majority of cases can be involved, in particular where there is a general regulation.
Art. 109, therefore, prohibits exceptional laws in the actual sense, that is to say,
statutes directed against a certain person or a majority of particular persons for
individual reasons. Even the legislature is bound by this provision. On the controversy, see issue 3 of the Veröfentlichungen der Vereinigung der deutschen Staatsrechtslehrer, with the reports by E. Kaufmann and H. Nawiasky, 1927, and H. Triepel, Goldbilanzenverordnung und Vorzugsaktien, Berlin 1924, p. 26f. Cf. Anschütz,
Kommentar, p. 304; Leibholz, Die Gleichheit vor dem Gesetz, Berlin 1925, and Archiv
des öfentlichen Rechts, new series 12, p. 1f.; Aldag, Die Gleichheit vor dem Gesetz in
der Reichsverfassung, 1925; Carl Schmitt, Unabhängigkeit der Richter, 1926, and the
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he Rechtsstaat Concept of Law
discussion of the commentary by Anschütz, Juristische Wochenschrift, 1926, p. 2271;
and E. v. Hippel, Archiv des öfentlichen Rechts, new series 11, p. 124f.
5. Even any further elaboration of the Rechtsstaat and every guarantee
that is distinctive of the Rechtsstaat presupposes the general character of
the statute. he independence of judges from internal administrative commands, for example, has its essential correlate in the dependence of judges
on the statute. Dependence on the statute means something other than
dependence on the commands and special instructions of a superior. It
even means something quite the opposite. If the legislature may use the
form of the statute for individual commands to the judge, the judge is no
longer independent, but instead is dependent on the oices authorized for
legislation, and if these may use their legislative jurisdiction for special instructions and “imperious orders” to the judge, then through it they are
simply the superiors of the judge. Judges are independent only so long as
the general character of the statute [156] is retained. Another example is the
traditional Rechtsstaat principle nulla poena sine lege, which presupposes
a general norm and would transform itself into the opposite of Rechtsstaatlike protection, if through a majority decision of the legislative body in the
form of a statute, “by law,” Mr. X could be condemned to death or thrown
into prison. he factual circumstance of an action is generally valid today
as a prerequisite of a punishment. he concept of the factual character
could even be made into the basic concept of a system of criminal law, as
occurred in Beling’s “Lehre vom Verbrechen” (1906). However, factual circumstance, “typicality,” and other ideas above all mean that something is
capable of being subsumed under a general norm. he concept of fact in
Albert Hensel’s system of tax law (“Steuerrecht,” in the Enzyklopädie der
Rechts- und Staatswissenschaften, 2nd ed. 1927, pp. 34, 42f.) found a usage
that was typical of the Rechtsstaat in the same way. he concept of factual
circumstance is useful for understanding the subordination to authority of
those with tax obligations (of the tax debtors, as Hensel says) as a mere
consequence of the fact that the state “is entitled, here as in all other areas
of legislation, to establish norms, that it, moreover, has to fulill the purpose
of the statute through its own oices under application of its own coercive powers (but only if a concrete claim has arisen through factual realization!).” All these constructions are displaced along with the presupposition of a general norm and show that the subordination of state oicials to
the statute, every organizational execution of the protection of bourgeois
freedom, and every single bourgeois-legal demand rest on this concept
of the statute as a general norm. Any other properties of the statute as a
substantive-rational, just, and reasonable order have become relative today
and rendered problematical. he natural law belief in the law of reason and
reason in the law has been displaced to a great extent. What protects the
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195
bourgeois Rechtsstaat against complete dissolution in the absolutism of
shifting parliamentary majorities is only the factually still present residue
of respect for this general character of the statute. Not as if that were a completely exhaustive deinition of law in the material sense. However, it is the
general, logical, [157] unavoidable minimum. “he law can be bad, unjust,
but this danger is reduced to a minimum because of its general and abstract
composition. he protective character of the law, indeed, its raison d’être
itself, lies in its general character. (Duguit, Manuel de Droit constitutionnel,
4th ed. 1923, p. 97; Traité de Droit constitutionnel, vol. II, 1923, p. 145f.).
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§ 14.
he Basic Rights
I. Historical overview.
1. he American Declarations of Rights. he Magna Carta of 1215 (above
§ 6, II 1, p. 45), the Habeas Corpus Act of 1679 (protection against arbitrary
arrests and right to judicial hearing), and the Bill of Rights of 1688 (above
§ 6, II 1, p. 46) are often termed the irst declaration of basic rights. hey
are, in fact, contractual or statutory regulations of the rights of English barons or citizens, which in the course of a gradual development certainly assumed the character of modern principles, but they do not correspond to
the original meaning of basic rights. he history of the basic rights, more
precisely, irst begins with the declarations the American states established
in the eighteenth century to justify their independence from England. As
Ranke expressed it, this is really the beginning of the democratic, more
accurately, of the liberal age and of the modern bourgeois, liberty-based
Rechtsstaat, although these American declarations designate themselves
still as “Bills of Rights” in connection with the English tradition. he state
of Virginia issued the irst and, according to G. Jellinek (Die Erklärung der
Menschen- und Bürgerrechte, p. 18), the model declaration on 12 June 1776,
then Pennsylvania (11 November 1776) and others followed. Nevertheless,
not all thirteen states of the Union issued such declarations. he federal
constitution of 1787 contained no such declaration of basic rights. It irst
incorporated basic rights in a few supplementary amendments (Amendments 1789–1791). he essential basic rights of these declarations are freedom, private property, security, right to resistance, freedom of conscience,
and religious freedom. he securing of these rights constituted the purpose
of the state.
According to the prevailing interpretation, which rests on the essay by G. Jellinek, Die Erklärung der Menschen- und Bürgerrechte, 4th ed., [158] 1919, the idea of
these diferent basic rights developed out of religious freedom. he controversy over
the historical correctness of Jellinek’s presentation cannot be entered into here (see
a literature comparison by W. Jellinek in the preface of the fourth edition of the just
named essay, which he edited; see also Hashagen in the Zeitschrift für die gesamten
Staatswissenschaften 1924, p. 461; Karl Becker, Declaration of Independence, New
York 1922; and G. v. Schulze-Gaevernitz, “Die geistesgeschlichtlichen Grundlagen
der anglo-amerikanischen Welt-Suprematie,” Archiv für Soziale Wissenschaft 58
(1927), p. 76 n. 19.
For the systematic treatment of the modern Rechtsstaat, the important thing is
that the idea of basic rights contains the fundamental principle of distribution, on
which rests the free bourgeois Rechtsstaat that is implemented with logical consistency. hat means that the liberty sphere of the individual is unlimited in prin-
ciple, while the powers of the state are limited in principle. he state during antiquity knew no liberty rights, because a private sphere with an independent right
against the political community appeared inconceivable and the idea of freedom of
the individual would be independent of the political freedom of his people and of
the state would have been considered absurd, immoral, and unworthy of a free man.
Christianity appeared in a world dominated by the Roman Empire, whose political
universe included a “cosmos” that was paciied and, consequently, rendered nonpolitical. his characteristic of the political universe ended as the Roman Empire
disintegrated with the migration of peoples. But the theory of the entire medieval
period retained the idea of the political universal. he pope and the emperor were
its bearers. With the sixteenth century, the theory of the political universal, even its
iction, became impossible, because the sovereignty of the numerous states formed
then was recognized and the world had obviously now made a transition into the
condition of a political universe that was pluralistic. Christianity and the representatives of the Christian church were in an entirely new situation. A new organization
of religious life in the form of national churches developed from the state. he theoretical basis of the organization was often very unclear. But, in political practice,
it was dominated very clearly by the idea that the deinitive grouping of persons
is determined by political allegiance and religion. Hence, religious life cannot be
a private afair. he Baptists and the Puritans irst gave a completely new answer.
In the logic of their posture toward the state and toward every social bond lay an
absolute privatization of every religion. However, that did not mean that religion
lost its value—quite the opposite. he state and public life generally were rendered
relative and devalued. Religion as the highest and the absolute thing becomes the affair of the individual. Everything else, every type of social formation, church as well
as state, becomes something relative, and it can derive its value only as a means of
assistance to every absolute value, which is alone deinitive. hat religious freedom
represents the irst of all basic rights is thus unconditionally correct even without
regard to the [159] historical details of the development in a systematic sense. For
with it the fundamental principle of distribution is established. he individual as
such is the bearer of an absolute value and remains with this value in his private
sphere, so his private freedom is something that is in principle unlimited. he state
is only a means and, as such, relative, derivative, limited in each of its powers, and
controllable by the private sphere.
2. he French Declaration of the Rights of Man and of the Citizen of 26
August 1789 establishes as the most important basic rights those of freedom, property, security, and the right to resistance, but not freedom of religion or freedom of association. Despite all the historical connections, there
is something essentially diferent here than with the American declarations. he concept of state citizen is presupposed in the French declaration,
and an already existing, national state is perpetuated there. Unlike what
occurred in the American colonies, a new state system is not established
on a new foundation. As stated in the introduction, the French declaration
should ofer a celebratory reminder to all members of the community of
their rights and privileges. By complying with these rights, the state authority should gain greater respect. he new distributive principle of private freedom, therefore, does not appear in its unconditional logic. It does
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he Basic Rights
so, rather, only as a modifying element in the context of an existing political
unity.
he later French constitutions (1793, 1795) once again contain declarations of rights in unchanged form. However, the 1795 constitution (the
Directory Constitution) contains, according to the heading, not only declarations of rights but also the duties of persons and of citizens. he constitution of 4 November 1848 refers to the principles of 1789. he currently
valid constitutional laws of 1875 contain no special declarations. he human
and civil rights of 1789 are valid even without special proclamation as the
self-evident foundation of the state order (cf. above § 12, I 4, p. 128).
3. In Germany on 27 December 1848 (section VI, §§ 130f. of the constitution of 28 March 1849), the Frankfurt National Assembly proclaimed,
under the heading “he Basic Rights of the German People,” the right to accommodation and emigration, equality before the law, freedom of the person, privacy of mail, freedom of opinion, freedom of belief and conscience,
freedom of assembly and association, private property, and the right of
[160] access to ordinary courts. he Frankfurt Federal Assembly of 1851 declared the constitutional work of the Frankfurt National Assembly null and
void. Strongly under the inluence of the Belgian constitution of 7 February
1831, the Prussian constitution of 30 January 1850 contains the catalog of
rights as it was elaborated in the course of the nineteenth century: equality
before the law, personal freedom, inviolability of living quarters, access to
ordinary courts, prohibition of exceptional courts, inviolability of private
property, freedom of emigration, freedom of religion (nevertheless, the
Christian religion provides the basis for institutions connected to the exercise of religion), free expression of opinion, freedom of the press, freedom
of assembly, and freedom of association.
Bismarck’s Reich Constitution of 16 April 1871 contains no such catalog
of “basis rights.”
he heading of the Weimar Constitution’s Second Principal Part is “Basic
Rights and Duties of the Germans.” Under this heading, one inds in part
the rights that are typically enumerated, such as equality before the law in
Art. 109, personal freedom in Art. 111, inviolability of living quarters in Art.
115, privacy of the mail in Art. 117, right of the free expression of opinion
in Art. 118, freedom of assembly in Art. 123, freedom of association in Art.
124, and private property in Art. 153. his section also partly contains diverse individual provisions and programmatic principles, etc. he right of
access to ordinary courts and the prohibition of exceptional courts stand in
the First Principal Part under Art. 105.
4. In January 1918, the All-Russian Soviet Congress proclaimed a Declaration of the Rights of Working and Exploited Peoples, which became
section I in the constitution of the Russian Soviet Republic of 5 July 1918.
he Basic Rights
199
According to the Bolshevik reading, the basic rights of a free, bourgeois
Rechtsstaat are only the instruments of the capitalist rule of private property. In the proclamation of 1918, the principles of a new state system are
supposed to be set up. he private property in land, mineral and water resources, and factories and banks are eliminated, and the struggle against
the imperialism of capitalist powers, the brotherhood of all the workers and
of the exploited of the world, and the freedom of the exploited people of
Asia and the colonies are proclaimed. “In order to ensure a true freedom of
conscience to those who work, the church is separated from the [161] state
and education from the church; the freedom of religious and antireligious
propaganda is legally accorded to all state citizens.” Freedom of the press
and freedom of association and assembly are valid only for the working
class and those involved in agriculture. Added to this is a series of other political provisions. In its irst part, the constitution of the Union of Socialist
Soviet Republics of 6 June 1923 contains only a “Declaration on the Founding of Socialist Soviet Republics,” in which the opposition to world capitalism is proclaimed, but it does not contain the enumeration of the 1918 declaration. Nevertheless, this is repeated in the constitutions of the individual
member states, especially in the constitution of the Russian Socialist Soviet
Republic of 1925 (cf. Alexejew, “Die Entwicklung des russischen Staates in
den Jahren 1923–1925,” Jahrbuch des öfentlichen Rechts XIV, 1926, pp. 324,
402).
II. he historical and legal signiicance of the declaration of basic rights.
he declaration of basic rights means the establishment of principles on
which the political unity of the people rests and whose validity is recognized
as the most important presupposition of the fact that this unity always produces and forms itself anew. It also means that the integration of the state
unity occurs, in the words of Rudolf Smend. If through a great political act
a new state system is founded or through a revolution a completely new
principle of state integration is established, then a declaration is a natural expression of the intention, in the decisive moment, to give a certain
turn to its own political destiny. hat holds true for the declarations of the
American states of 1776, for the French declaration of 1789, and for the Russian one of 1918. In these instances, the “proclamation of a new state ethos”
is involved, the “constitutive total purpose” of the constitutional being of
the state is “announced in triumphant form” (Smend, “Bericht,” Archiv des
öfentlichen Rechts, New Series, 1927, p. 105). In Germany, the attempt that
the 1848 Revolution made in this direction failed. he Bismarckian constitution of 1871, as Smend aptly stated, received its state ethos from the monarchical states, which formed the federation. hese states generally had
a catalog of “basic rights” in their constitutions, so that even the practi200
he Basic Rights
cal goal of a new proclamation faded from view. he Weimar Constitution
of 1919 was entirely diferent. In its introductory text, it states that [162]
the German people is motivated by the will, through this constitution, to
“renew and strengthen its Reich in freedom and justice, to serve internal
and external peace, and to promote social progress.” In the second main
section, alongside the catalog of so-called basic rights as it was formed in
the course of the nineteenth century, one still inds additional fundamental declarations. And the question is to what extent is the proclamation of
a “new state ethos” present in a manner similar or identical to the other
great historical precedents? Friedrich Naumann consciously intended to
provide such a proclamation (Protocol, p. 176f.). Inluenced by the Russian
declaration of “rights of the working and exploited peoples,” he stated that
“the most recent contemporary constitution, the Bolshevik-Russian constitution of 5 July 1918, is, so to speak, the direct rival of the constitution that
we are now producing.” Consequently, for the new German state, which
was meant to be neither a bourgeois-individualist nor a Bolshevik-socialist
state, but rather a social one, he wished to airm its ideal foundations and
principles. If that did not come about, it would be a “deiciency in the body
of the state that we want to restore.” But the Weimar National Assembly
did not share the political pathos of this way of thinking. he Constitution’s
second main section only amounted to a jumbling of diverse principles, an
interfactional compromise program that, because of its “mixed character”
(Protocol, p. 186), cannot be equated with the great precedents. Such proclamations do not “produce” themselves according to just any wishes and
ideals, however well intentioned, but rather presuppose that through its
declaration a people assumes the risks of a completely new political grouping based on an understanding of friend and enemy, and is resolved to defend the new principles of its state in the struggle even against a powerful
external political enemy. he signing of the Versailles Treaty, however, preceded the declarations of the Weimar National Assembly.
he historical-political signiicance of the “Basic Rights and Duties of the
Germans” of 1919, therefore, is diferent than that of the proclamations of
1789 or 1918. Nevertheless, the principles established in the Second Principal Part of the Weimar Constitution have fundamental signiicance for the
constitutional and public law of the German Reich. hey contain a comprehensive political decision of the [163] German people concerning the type
of their existence, and they provide the German Reich in its present form
the character of a constitutional democracy. In other words, it is a constitutional state resting on democratic principles, yet one that is modiied by
the principles of the bourgeois Rechtsstaat. Legislation, adjudication, and
administration receive their deinitive guidelines through it. No German
he Basic Rights
201
law may be interpreted or applied in contradiction to them, and no German law may nullify a genuine basic right. hese fundamental principles
can be eliminated neither by simple statute nor by a constitution-amending
statute according to Art. 76. Instead, they may be eliminated by a new act of
the constitution-making power of the German people.
III. Substantive distribution of the basic rights.
1. he basic rights are distinguishable from other constitutionally secured
and protected rights. Not every basic right in the Rechtsstaat constitutions
is guaranteed by a constitutional rule, and vice versa, nor does every protection against amendment through simple statute by itself signify a basic
right. Art. 129, 3, 3, constitutionally guarantees that civil servants have a
right to the privacy of personal papers, and Art. 149, 3, guarantees that
theological faculties are retained in universities, but these do not constitute
basic rights. Rather opaquely, any possible demand and right considered
important is designated a basic right and “anchored in the constitution.”
For a concept that is useful in scholarly terms, one must airm that the
basic rights in the bourgeois Rechtsstaat are only such rights that can be
valid as rights prior to and superior to the state and that the state confers
not according to the standard of its laws. Instead, the state recognizes that
these rights are given prior to it and protects them on this basis. he state
also accepts that it may intrude on these rights only to a degree that is in
principle deinable and then only through a regulated procedure. According to their inner nature, therefore, these basic rights are not legal entitlements, but rather spheres of freedom, from which rights, more precisely,
defensive rights, stem. hat character of rights is most clearly evident in the
liberty rights, which historically signify the beginning of the basic rights.
Under this idea, freedom of religion, personal freedom, property, right of
free expression of opinion exist prior to the state and receive their content
not from any statutes or according to the standard of statutes or within the
limitations of [164] statutes. On the contrary, they designate the free play of
individual freedom, which is, in principle, unregulated. he state facilitates
their protection and herein generally inds the justiication of its existence.
he individual’s right to resistance is the most extreme instrument of protection of these rights. It is not merely an inalienable right, but also one that
is not organizable. It is essentially part of the genuine basic rights.
he great historical portrayal of the theory of the right to resistance that
K. Wolzendorf provided in his book, Staatsrecht und Naturrecht, Breslau 1916,
fails to recognize that the individual right to resistance has a suprastate quality that
does not lend itself to organization. Wolzendorf especially praised the theories and
drafts of Condorcet, through which the right to resistance of the individual is “diverted” into a legal organization. But this organizing and “diverting” only means that
the individualistic right to resistance transforms itself into a mere legal instrument
and that the human and liberty rights transform themselves into a right to petition
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he Basic Rights
for redress, which is granted, regulated, and rationalized by the state. he fundamental principle of distribution—speciically, human freedom, which is in principle
unbounded, and the state, which is in principle bounded—is thereby given up. he
individual no longer has basic and liberty rights, but instead has certain procedural
opportunities for seeking redress “according to the standard of the law.”
2. he basic rights in the actual sense are essentially rights of the free
individual person. hey are rights, in other words, that the individual person has against the state. What Richard homa (Festgabe für das preußische
Oberverwaltungsgericht, 1925, p. 187) says applies to every genuine right.
“Basic right guarantees,” he argues, “are pauses in the eternal pendular
process of the man versus the state” [Schmitt’s English in italics]. Part of
this concept of rights, however, is the understanding that the individual,
by virtue of his own “natural” right, comes into opposition to the state and
may not eliminate entirely the idea of individual rights that are prior to and
above the state, so long as one can speak at all of basic rights. Rights that
are delivered over to the whim of an absolute prince or to a simple or qualiied parliamentary majority cannot genuinely be designated basic rights.
Basic rights in the actual sense are only the liberal human rights of the
individual person. he legal meaning of their recognition and “declaration”
is that this recognition signiies the acknowledgment of the fundamental
distributional principle of the bourgeois Rechtsstaat, which is a sphere of
individual freedom that is in principle unlimited and an opportunity for
intrusion by the state that is in principle limited, deinable, and subject to
review. hat these genuine basic rights are valid for every person without
regard to state membership is a further consequence of human rights existing prior to the state. hey are individual rights, or, put diferently, rights
of the isolated individual person. Basic rights in the [165] actual sense are
hence only individualistic liberty rights, not social demands.
Among these rights are freedom of conscience, personal freedom (in
particular protection from arbitrary arrest), inviolability of living quarters,
privacy of the mail, and private property. In regard to these liberty rights,
the single individual is considered isolated. he Weimar Constitution enumerates them in the irst section of the Second Principal Part under the
heading “he Individual Person.” Under this heading, in fact, rights other
than actual basic rights are also enumerated, while the individualistic protoright, freedom of religion and conscience, is treated in the third section
under the heading “Religion and Religious Societies” (Art. 135, 136).
But even the rights of the individual in connection with other individuals
must still be considered genuine basic rights as long as the individual does
not leave the nonpolitical condition of mere social relations and so long as
only the free competition and the free discussion of the individual is recognized. Such rights, however, could easily lose their nonpolitical character
he Basic Rights
203
and thereby cease to be individual liberty rights. hey could also no longer
correspond to the distributional principle, and then they could even lose the
absoluteness of the principle’s protection along with their individualistichuman character. he necessity of regulation and legislation then results
from the fact that these rights do not remain in the sphere of private relations. Instead, they contain social catalysts, which include the free expression of opinion, freedom of speech and of press, freedom of worship, free
assembly, and freedom of association and of collaboration. As soon as the
freedom of collaboration leads to coalitions, or associations, that struggle
against one another and stand opposed to one another with speciic, social
instruments of power like strikes or lockouts, the boundary of the political is reached and an individualistic type of basic and liberty right is no
longer present. he right to form coalitions, right to strike, right to work
stoppage are not liberty rights in the sense of the liberal Rechtsstaat. When
a social group gains such opportunities for struggle, whether through express constitutional provisions or through acquiescence in the practice, the
basic presupposition of the liberal Rechtsstaat simply no longer applies,
and “freedom” still does not mean the individual’s opportunity for action,
which is in principle unlimited. On the contrary, [166] it means the unhindered exploitation of social power through social organizations.
3. All genuine basic rights are absolute rights in that they are not guaranteed “according to statutes.” he content of such rights results not from the
statute. Instead, the statutory intrusion appears as an exception to them, as
the generally regulated exception that is limited and deinable in principle.
It is part of the bourgeois Rechtsstaat’s fundamental distributional principle that the freedom of the individual is presupposed and the state limitation appears as an exception. Also, the Weimar Constitution’s manner of
expression often (not always) corresponds to this principle, whose signiicance Kurt Häntzschel (Zeitschrift für öfentliches Recht, V, 1926, pp. 18/19)
showed at the same time he demonstrated the importance of this distinction
between absolute and relative basic rights. Art. 114, for example, states that
“the freedom of the person is inviolable. An infringement or deprivation of
personal freedom by the public authority is permissible only on the basis of
statutes.” Or take Art. 115, which provides that “the living quarters of every
German is for him a sanctuary and is inviolable. Exceptions are permissible
only on the basis of statutes.” It is similarly the case with Art. 117, which
reads, “the privacy of letters as well as of the mail, telegraphs, and telephone
calls is inviolable. Exceptions can be established only by Reich statute.” As
Häntzschel states, other rights recognized by the Weimar Constitution are
“relative from the outset in that they are guaranteed ‘within the limits of ’
or ‘according to statute,’ ” such as the freedom of occupation or of contract
in Art. 151, 3, which stipulates that “the freedom of trade and occupation is
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he Basic Rights
ensured according to Reich statutes.” See also Art. 152, which provides that
“during economic transactions, contractual freedom is valid according to
statutes.” Even private property is apparently not an absolute right in the
formulation of Art. 153. At this point, a contradiction between the irst and
second clause of the article reveals itself. “Property is guaranteed by the
Constitution! [Schmitt’s italics and exclamation point]. Its content and its
limits are derived from statutes” (cf. p. 172).
he language of the constitutional rule is not always clear and unambiguous.
hat expresses itself very noticeably in the most important social liberty right, in the
origin of all other social liberty rights, and in the presupposition of the liberal idea
of free discussion, the right of free expression of opinion with its consequences for
freedom of speech and the press. Art. 118 states with a turn of phrase that is subject
to misunderstanding that “every German has the right, within the limits of general
laws, to express freely his opinion through word, writing, imprint, image, or in any
other manner.” he words “within the limits” appear to designate a limited right
from the beginning [167], such that the right of free expression of opinion in the
Weimar Constitution would not be treated as an absolute basic right. his result,
which, however, is actually improbable, is also not justiied by the obviously unclear
wording. he history of this clause’s origins (cf. Oberverwaltigungsgericht, vol. 77,
p. 514) ofers no special opportunity for enlightenment. One could discern from it
that in the formulation “within the limits of the general laws,” the word general can
simply be left out, because it entered the text through an editorial change (likewise
Kitzinger, Reichsgesetz über die Presse, p. 203). he formulation would then mean
that the right of free expression inds its boundaries in statutory provisions for the
protection of other legal instruments. However, this is not yet going so far as to say
that the idea of the basic rights’ distributional principle—that the freedom of the
individual is in principle unbounded and the possibility of limitation through the
state is in principle bounded—is displaced altogether.
According to Häntzschel (“Reichspressgesetz,” Archiv des öfentlichen Rechts
X, 1927, p. 228) and Rothenbücher (“Deutscher Staatsrechtslehrertag,” Archiv des
öfentlichen Rechts XIII, 1927, p. 101), the word general in the formulation “within
the limits of general laws” can be left out. It also refers not only to criminal laws
(as in Art. 124), so that the protection is more limited under Art. 118. However,
all statutes and administrative measures directed against the expression of opinion
as such should be excluded. “General laws” in the Art. 118 sense would all be statutes that protect a legal entitlement without direct regard to a particular opinion
that deserves protection in itself. In this context, Rothenbücher rightly emphasizes
that “opinion” signiies a public position of the fundamental type. Even Smend (“Bericht,” Archiv des öfentlichen Rechts, new series 13, p. 107) distinguishes among protected legal entitlements, and yet he incorporates a balancing of interests into the
question, which could easily render relative the absolute value of the entitlement of
free expression of opinion. “General laws in the sense of Art. 118,” he argues, “are
statutes that have precedence over Art. 118, therefore, because the social entitlement protected by them is more important than the freedom of opinion.” hat no
longer corresponds, however, to the idea of the fundamental distributional principle. A liberty right is not a right or entitlement that can enter into a balancing of
interests with other entitlements. For the principle of basic rights, there is nothing
more important than freedom, and the question is only inding the standard to limit
he Basic Rights
205
state intrusions, statutes as well as administrative acts, to make them deinable and,
through this, subject to review.
he prevailing opinion today seems to incline toward recognizing that limitations of the right of free expression of opinion resting on a statutory foundation continues to be valid as before and that under the general laws are understood not only
criminal laws but also police authorizations like § 10 II 17 Allgemeines Landesrecht
[General Law of Prussia] (Anschütz, Kommentar, p. 323; R. homa, Festgabe, 1925,
p. 213). For individual provisions, however, (for example § 9 of the Prussian statute
of 12 May 1851 or § 5 of the Reich press statute) exceptions are once again made. Art.
118 should eliminate them. he correct interpretation may incline toward recognizing that the words “within the limits of the general laws” mean only the general
statutory reservation. Yet there is an adverbial sense to the word general that means
“as is generally the case with basic rights.” It also means that the principle of the general character of the statutes, which is part of a truly general statutory reservation,
may be violated and, at the same time, that the court ruling that a statute directed
against the right of free expression of opinion as such is impermissible. Herein lies
the great meaning of Rothenbücher’s thesis.
he formulation of Art. 118, which is acknowledged as unclear and inefective,
eliminates this basic right not as a genuine basic right. In the Weimar Constitution,
it should be guaranteed with the usual catalog of basic rights, but with two special limitations. he irst is to facilitate a campaign against artistic trash and ilth as
well as for the protection of youth [168] during public performances and showings
(Gesetz zur Bewahrung der Jugend vor Schund- und Schmutzschriften vom 18. Dezember 1926, Reichgesetzesblatt I, p. 505). he second is to grant constitutional permission for ilm censorship (Lichtspielgesetz vom 12. Mai 1920, Reichgesetzesblatt,
p. 953). his last limitation is of special interest for the development of the liberal
basic rights in general, for it shows that with the increasing intensity of the social
subordination of the individual and with the changes in communication technology,
the traditional liberal principle of distribution is displaced and the idea of the unlimited freedom of the individual becomes a mere iction. Because a certain technology of communication and of imparting opinion, ilm technology, is excepted
from the means of free expression of opinion, the liberty right of the free expression
of opinion is apparently already given up. Nevertheless, it may perhaps be said that
ilm technology does not signify a technology of expression of opinion in the same
sense as writing and printing. As Rothenbücher aptly stressed, opinion in particular means public expression of opinion of fundamental importance. Regarding the
freedom of expression of opinion, it is, in fact, a matter of the principle of free discussion, which for the liberal idea is the actual means of integration of a social unity.
Discussion presupposes, however, irst, human thoughts and, second, thoughts expressed through human language. Writing and print (the press) are means of the
dissemination of ideas. Film, by contrast, so far as it is not simply posted writing, is
only image and mimetic portrayal. It is not language and thinking mediated through
the spoken or written human word. It is not a bearer of a genuine discussion. An
ideal justiication for it may lie in the fact that the entire ilm technology is exempted
from the right of the free expression of opinion. Otherwise, it is precisely this meaning of ilm that shows how much the demand for liberal discussion has diminished.
he political problem of the inluencing of the masses through ilm is so signiicant
that no state can leave this powerful psycho-technical apparatus uncontrolled. he
state must remove ilm from politics, neutralize it. In fact, because the political is
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he Basic Rights
unavoidable, the state must place it in the service of the existing order, even if it does
not have the courage to use it openly as a means of integrating a social-psychological
homogeneity.
4. he essentially democratic rights of state citizenship are a thoroughly
diferent type. hey can also be designated as basic rights, but in an entirely diferent sense than the individualistic liberty rights. A dualism of
the basic rights corresponds to the dualism of the components of a modern constitution of the Rechtsstaat variety (below § 16, p. 200). he democratic rights of state citizenship presuppose the state citizen, the citoyen,
living in the state, not individual free persons in the extra-state condition
of “freedom.” his means these democratic rights have an essentially political character. As political status rights (G. Jellinek) or as rights of peoples
(Fleiner, Bundesstaatsrecht, p. 288), they are rightly distinguished from the
individual basic rights. he most important contrast lies in the fact that
they cannot in principle be unlimited, cannot be “liberties,” and, as such,
they do not correspond to the distributional principle of the genuine basic
rights. For they operate inside the state and involve only a certain, deined
degree of participation in state [169] life. hey are dominated by the democratic idea of equality and should be conferred on every state citizen in
the same scope. According to their nature, they are not valid for foreigners
because otherwise the political community and unity cease to exist and
the essential presupposition of the political existence, the possibility of the
distinction of friend and enemy, is undermined. Among these democratic
rights are equality before the law (Art. 109), the right to petition (Art. 126),
which, correctly interpreted, is a right of the state citizen and not a general
human right, the equal electoral and voting right of the individual state
citizen (Art. 22 and 17, respectively), and equal access to all public oices
according to capacity (Art. 128).
5. Constituted diferently, on the other hand, the essentially socialistic
rights of the individual are dependent on the positive services of the state.
hey cannot be unbounded, for every right to the service of another is limited, as is the case, however, with a right of all to state services. hat type of
right presupposes a state organization that incorporates the right-holding
individual. In this way, this individual’s right is already rendered relative.
It is conditioned, speciically, by a rationalizing organization that includes
the individual, directs him to his place, and measures and responds to his
claim. When a constitutional law proclaims the “right to work,” it does not
intend to establish a right that is unbounded in principle. Such a “right to
work” can exist only in a system of organizations, reports, medical investigations, labor procurement and directives, and obligations for the provision of directed labor, as organized welfare services or in the form of a
labor mediation or unemployment insurance, as under the German law of
he Basic Rights
207
16 July 1927 (Reichgesetzesblatt I, p. 187). According to its logical and juristic
structure, such a right stands in opposition to the genuine basic and liberty
rights, and it is consequently misleading to speak indiscriminately of “basic
rights.” he right to work, the right to social welfare services and support,
and the right to noncompensatory training and instruction (Art. V 17 of
the Soviet constitution of 1918 and Art. 145 of the Weimar Constitution,
which is not as extensive) are all examples of this type of right. Art. 119 of
the Weimar Constitution supplies another example when it stipulates that
“families with many children have a claim to the protection and the social
welfare services of the state.” Take also Art. 163, 2. “Every German should be
granted the opportunity to earn his living through productive labor. To the
extent that an appropriate opportunity for work cannot be found for him,”
it continues, “his [170] necessary living needs will be provided for. Details
are determined through special Reich statutes.”
IV. Institutional guarantees are distinguishable from basic rights.
1. Constitutional provisions can guarantee particular institutions special protection. he constitutional provision can then have the goal of preventing elimination of these institutions by way of simple legislation. In an
imprecise formulation, one often also speaks of basic rights, although the
structure of such guarantees is logically and legally entirely diferent from
that of a liberty right. Basic rights are not involved, even when subjective
rights of individuals or of corporations are linked with the institutional
guarantee, which is not necessarily the case. he institutional guarantee is
intrinsically limited. It exists only [171] inside the state and is not based
on the idea of a sphere of liberty that is in principle unlimited. Instead,
it involves a legally recognized institution, which is always something deined and limited and which completes certain tasks and achieves particular goals. Also, the tasks in detailed form may not be specialized and may
permit a certain “universality of efect.”
hese institutional guarantees include the so-called basic rights of localities,
for example § 184 of the 1849 Frankfurt constitution. Every locality has as basic
rights under its constitution (a) the election of its leaders and representatives and
(b) the independent administration of local afairs including the local police under
the supervision of the state, which is mandated by statute. Art. 127 of the Weimar
Constitution declares that localities and associations of localities have the right of
self-government within the limits of law.1 his principle contains a constitutional
guarantee. Speciically, the legal right of self-government is guaranteed by a Reich
constitutional law, so that the institution of communal self-government as such cannot be eliminated, and all statutes that, according to their substantive content, completely destroy communal self-government or deprive it of its essential resources are
unconstitutional under the Weimar Constitution. By contrast, this provision does
not guarantee a right to existence, for example, for the individual locality or for the
individual association of localities. Consequently, annexation of one locality against
its will is possible under Land law. Also, for example, the content of the legal norms
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he Basic Rights
Summarizing overview of the 1st, 5th, and 6th individual rights considered
here
Liberty rights
of the isolated
individual
Liberty rights of
the individual
in connection
with other individuals
Rights of the
Individual in
the state as state
citizen
Rights of the
individual to
services of the
state
Freedom of
conscience
Personal liberty
Private property
Inviolability of
Living quarters (privacy of
letters)
Free expression
of opinion
Freedom of
speech
Freedom of the
press
Freedom of
worship
Freedom of
assembly
Freedom of
association
(Freedom of
coalition already the transition into the
political)
Equality before
the law
Right of petition
Equal right to
election and to
the vote
Equal access to
public oice
Right to work
Right to social
welfare and
support
Right to a
guardian,
training, and
instruction
Democraticpolitical rights
of the individual
state citizen
Liberal, individualistic guarantees
of the individual sphere of liberty,
of free competition, and of free
discussion
Socialist (diluted social)
rights and
claims
for self-government under individual Land law, the status quo on 14 August 1919, is
not determined. hese norms, moreover, can be changed at any time through simple
Land statute. In this regard, Art. 127 of the Weimar Constitution distinguishes itself
from Art. 70 of the 1920 Prussian constitution, the status quo of which is, according
to current legal circumstances in Prussia, distinctly a matter of self-government, so
that limitations are only permissible via a statute amending the Prussian constitution.
Other examples of institutional guarantees are the prohibition of exceptional courts (right of access to the ordinary courts) in Art. 105, marriage as
the foundation of family life (Art. 119), and Sunday holidays in Art. 139. he
he Basic Rights
209
wording of the Weimar Constitution regarding private property is contradictory and unclear. Under Art. 153, property is ensured alongside the concrete right of property as a private law institution, as is the right to inheritance (Art. 154). hat the Weimar Constitution guarantees private property
as an institution, however, cannot mean that it is no longer treated as a
basic right. It can mean, though, that the Constitution intended to make
private property relative. In public law terms, it also cannot denote that
the guarantee of private property through Art. 153 would have a meaning
other than the declaration of the inviolability of personal freedom. Personal freedom, naturally, can never be an institution. On the other hand,
private property can, indeed, be considered something prior to the state, a
natural right existing before all social order, yet it can also be considered a
mere statutory institution. Art. 153’s formulation makes it appear doubtful
whether a [172] basic right is recognized or only an institutional guarantee
is intended. he wording of the second clause in Art. 153, 1, “Its content
and limits (speciically of property [Schmitt’s parenthetical addition]) are
derived from statute,” contradicts the basic right of the irst clause, for the
content of a genuine basic right, that of personal freedom, for example,
simply does not stem from the statute. It is, rather, given prior to it. So
under the Weimar Constitution, it would be impermissible to deine the
content of private property by statute, such that the “whims of authority”
(M. Wolf ), which lie in the established concept of property, would be transformed into a sum of enumerated individual rights. In the irst clause, the
guarantee of property is meant as the recognition of a principle, not as the
constitutional guarantee of a title without content, because there cannot be
a bourgeois Rechtsstaat without private property, and the Weimar Constitution is intended as a constitution of the bourgeois-Rechtsstaat variety.
he provisions of the Weimar Constitution regarding civil servant rights,
by contrast, contain a genuine example of institutional guarantees. hey
secure the retention of a professional civil service, which “should be servant of the collective and not of a party” (Art. 130). In other words, civil
servants should be protected from the state-dissolving consequences of a
parliamentary practice characterized by plundering and rigid allegiances.
he guarantee of the well-earned rights of civil servants (Art. 129, 1, 3) certainly beneits individual civil servants. It even establishes a subjective right
for civil servants. hese subjective rights reach beyond legal claims regarding property and wealth to also include those to title and rank, though they
do so with diferent types of legal protection. hey even extend to activity
in accord with legal and administrative norms (cf. RGZ, vol. 104 p. 58; vol.
107, p. 6). All that, however, does not serve the private interests of the civil
servant. Instead, it serves the institution of the professional civil service as
such. Consequently, a statute that in principle eliminated the professional
210
he Basic Rights
civil service would be just as unconstitutional as a statute that eliminated
communal self-government, the family, or the right to inheritance. here
are, therefore, institutional guarantees with and without subjective rights.
Even the legal protection and the possibility of redress of claims are constituted very diferently. To the essence of the institutional guarantee, however, belongs neither a subjective right nor maintenance of open access to
legal channels. [173]
he constitutional guarantee of the freedom of science and for the
teaching of science (Art. 142), the so-called “basic right of the German University” (R. Smend, “Staatsrechtslehrertagung 1927,” Archiv des öfentlichen
Rechts XIII, p. 107), also contains an institutional guarantee. Not a basic
right in the genuine sense, this provision intends a constitutional protection against elimination through the legislature, as is characteristic of the
institutional guarantee. he same is true for the guarantees of Art. 149 concerning religious instruction as a compulsory course of study in schools
and the retention of the theological faculties in the universities.
2. here cannot be basic rights of a natural or organized community inside of the state. Among these so-called basic rights, an institutional guarantee is present. he family as such can have no basic right in the genuine
sense, no more so than can one of its members. he family can only be
protected constitutionally as an institution. he same is true of localities or
associations of localities. he character of a legal subject can be conferred
on the institution; subjective rights can be constitutionally ensured. And it
would have been possible, for example, to confer such subjective rights on
the localities and associations of localities, while they retained in Art. 127
(in contrast to § 184 of the Frankfurt constitution of 1849) only an institutional guarantee without subjective rights. But even such subjective rights
are only constitutional rights, not genuine basic rights in the sense of the
fundamental distributional principle of the bourgeois Rechtsstaat. All these
institutions exist inside of the state, not before it or above it. he genuine basic right presupposes as given the individual with his or her liberty
sphere, which is in principle unbounded. An institution cannot be presupposed as given in such a way. he modern state is a closed political unity,
and it is, by its nature, the status. In other words, it is a total status, which
renders relative all other forms of status inside of itself. he state cannot
recognize a status internal to its own that is inalterably prior to or superior
to it, the state, and that, therefore, has a public law character with rights
equal to the state. To the same limited degree can intermediary organs extend into the state’s sphere, either standing above the state or existing independently alongside it. To every such inalterable status that is independent
of it, the state cannot have relationships of a public law variety. It cannot
have internal relations, in other words, only international legal ones. [174]
he Basic Rights
211
he state can constitutionally guarantee subjective rights of the most
diverse type for an already organized community that is independent of
it. he state can even confer a right to existence. Even those are not basic
rights in the genuine sense. When a church, such as the Roman Catholic
Church, claims for itself rights prior to and above the state, that can lead to
a contract between state and church. hen the contract is an act of international, not of public, law, and the state as a closed unity encounters the
church as such. he content of this contract may also be provided with constitutional guarantees. More speciically, it is stabilized as constitutional law
during the transformation into domestic law. Hence emerges the distinctive protection of such constitutional guarantees. However, international
legal obligations of that kind are not part of the constitution of a state and
are in no sense the basic rights of those granted rights under international
law.
When a state has obligated itself under international law to treat the members of
a minority in a certain way, and this obligation with the character of a constitutional
provision is transformed into domestic law, no right of the minority as a collectivity
emerges. he usual treaties protecting minorities, which have been concluded in
diferent states of eastern and middle Europe since 1919 (above § 7, IV 5, p. 74), contain guarantees of the freedom and equality of the individual members of a minority
and rest on the idea of the general human rights of the individual. To this extent,
they are basic rights. When beyond this, minorities are guaranteed an extensive socalled autonomy and the minority as such is organized, that signiies an institutional
guarantee with or without subjective rights, but not a genuine basic right.
3. he international-law “basic rights” of the states remain out of consideration here. Inside a federation, every member state has a right to existence, which can also be designated a “basic right.” But this designation is
meant self-evidently in another sense than as a basic right of the individual
in the bourgeois Rechtsstaat (cf. below § 29 on the problem of the federation). he “basic” or “fundamental” rights of the imperial electors or other
estates of the old German Reich do not need to be discussed. On this issue,
see above § 6, p. 44.
V. In the bourgeois Rechtsstaat, basic duties are nothing other than
constitutional obligations. When they are limited, they can only be duties
in the positive-law sense. Duties that are in principle unbounded would
contradict the idea of the bourgeois Rechtsstaat. Hence every duty exists
only “according to the law,” which deines the presupposition and content
of the duty. When the Weimar Constitution speaks of basic duties, [175]
it is noteworthy that the logical and legal structure of these basic duties
is diferent from that of the basic rights. As Reichstag deputy Düringer
rightly remarked in the deliberations of the constitutional committee of
the Weimar National Assembly (Protocol, p. 184), according to the original
idea there are only basic rights, no basic duties of the individual. Because
212
he Basic Rights
of the nature of the state, the recognition of basic duties takes on the character of a purely liberal Rechtsstaat, and the declaration of the basic duties
in the Weimar Constitution’s Second Principal Part should just serve this
purpose and should emphasize the social character of the German Reich in
opposition to the principles of individual freedom. he basic rights are only
duties of the state members or state subjects, in particular those persons
who stand in the sphere of state power, not duties of humanity generally.
Take, for example, Art. 132: “According to law, every German has the obligation
to undertake voluntary activity,” a provision that does not yet by itself establish a
concrete duty, but instead refers to the statutory provision that renders this duty
concrete. Similarly with Art. 133: “All state citizens are obligated, according to law, to
provide personal services for the state and the localities.” It is exactly the same with
Art. 133, 2, 1, which reads, “Mandatory military service complies with the provisions
of the Reich Defense Law.” See also Art. 145, 1, p. 1, stipulating that “there is a general
obligation to attend school.” In toto, these basic duties of the Weimar Constitution
do not eliminate the bourgeois Rechtsstaat character of this constitution. Its “mixed
character” reveals itself in clauses, such as Art. 163: “Without detriment to his personal freedom, every German has the moral duty to activate his spiritual and bodily
forces such that it advances the well-being of the whole society.”
VI. Division of the basic rights in regard to the legal protection against
state limitations and intrusions.
1. On the distinction of absolute and relative basic rights, see above III
3. he genuine basic right of the individual is always absolute and corresponds to the Rechtsstaat principle of distribution, according to which the
freedom of the individual is in principle unbounded, while the authority of
the state is in principle bounded.
From this absolute and in principle unrestricted quality of individual
freedom, it does not follow that intrusions and limitations are completely
excluded. But they appear as an exception that is calculable, deinable, and
controllable according to presupposition and content. Such exceptions may
only come about on the basis of statutes, whereby statute is understood
in the sense of a general norm under the Rechtsstaat concept of law and
does not mean just any single act of the king or of the legislative body [176]
that has the form of law. Basic and liberty rights stand under the statutory
reservation. he protection accorded these rights resides in the fact that the
statute in the Rechtsstaat sense must have certain substantive properties,
with which it satisies the idea of the Rechtsstaat principle of distribution
(above § 13).
Limitations on personal freedom, etc., are permissible on the basis of
statutes, simple statutes in particular, such as those concerning criminal
procedure, for example. It must not be overlooked here that in practical
terms a certain degree of intrusion has routinely developed. Even where indeterminate concepts, taken abstractly, appear to provide limitless opporhe Basic Rights
213
tunities for intrusion, a drawing of boundaries occurs in practice. hus, the
administrative court review of the police in particular has also reordered
the so-called general jurisdiction of the police in the sense of the Rechtsstaat statute and, in this way, produced a bounded quality and rendered
it deinable in principle. he best-known example of such a “general delegation” is the § 10 II 17 of the General Law of Prussia, which serves as the
legal foundation for police authority: “he oice of the police provides the
necessary institutions for the preservation of public peace, security, and
order and for the delection of dangers facing the public or its individual
members.” In this regard, every individual term has led to a series of legal
precedents that makes the police intervention calculable and deinable and
provides ordinary content to the concepts “maintenance” of “public security” and “order,” etc., thereby facilitating court supervision. his series of
precedents has even come up with restrictive rules for the so-called police
emergency (for example, a mere duty to tolerate, not an obligation to intervene actively). Where the normal presuppositions of this practice are not
given and, consequently, more extensive, indeinable intrusions become
necessary for the case of the state of exception, the possibility of a suspension, or the temporary setting aside of the basic rights, is provided for constitutionally, as under Art. 48, 2 (above § 11, II, p. 110).
It is frequently said that the positive legal signiicance of the basic rights
consists in the fact that they establish the principle of the “legality of the
administration.” Otherwise, one seems to assume that to the extent that express constitutional orders do not forbid it, every intrusion into the sphere
of liberty that the basic rights ensure [177] is permissible through statute or
special statute. Hence, the statutory reservation is misunderstood because
the Rechtsstaat concept of the statute is not correctly recognized. It is just
as imprecise and misleading to speak of an “authorization” by statute. In
regard to the Rechtsstaat signiicance of the basic rights, of the Rechtsstaat
concept of law, and of the fundamental distributional principle contained
in them, this “statutory reservation” and the Rechtsstaat principle of legal
intrusions into the sphere of liberty must be deined as limitations on the
freedom that the basic rights ensure can only occur on the basis of a statute,
which is to say a general norm, through an act of statutory application.
2. he protection of bourgeois freedom ensured by the recognition of
basic rights exhausts itself, however, not in this statutory reservation, but
rather extends itself even further. he recognition of basic rights in the
sense of the bourgeois Rechtsstaat signiies that the Rechtsstaat principles
of a modern, free, bourgeois constitution are recognized as an essential
component of the constitution itself. hat means that these principles are
part of the substance of the constitution and, indeed, may be modiied by
214
he Basic Rights
constitutional legislation; yet their complete elimination is more than a
mere constitutional revision. It would thus be incorrect to claim that any
statute that eliminates the bourgeois basic and liberty rights could come
about by way of a constitution-amending statute under Art. 76. his error
is only possible as long as the fundamental distinction of constitution and
constitutional law is overlooked. he purpose of a constitutional revision
is changing constitutional laws, not eliminating the constitution. Extensive
limitations of liberty rights are possible by way of a constitution-amending
statute. To the degree that the practice of apocryphal acts of sovereignty is
possible (above § 11, II, p. 108), even statutory violations of the Constitution
and one-time measures are permissible. However, a statute produced via
the procedure of Art. 76 that eliminates personal freedom or another recognized basic right altogether and that would provide an oicial discretion
for incalculable intrusions would be unconstitutional because it abolishes
the basic right.
Duguit’s view (“Manuel,” p. 486, Traité de Droit constitutionnel, 2nd ed., vol.
III, pp. 561/2) that the liberty rights of 1789 cannot be eliminated [178] through a
constitution-revising statute rightly applies to every constitution of the bourgeois
Rechtsstaat variety. hought out to its logical conclusion, however, this principle
must lead to the distinction between constitution and constitutional laws (cf.
above § 2, p. 26). he fact that the genuine basic rights as an essential, in particular
positive-legal, component of the constitution stand above the constitution’s legal
order also certainly underlies Art. 130 of the 28 March 1849 Frankfurt constitution,
which provides that “the following basic rights should be guaranteed to the German
people. hey should become a norm for the constitutions of the individual German states. No constitution or legislation of an individual German state should ever
eliminate or restrict them.” he superiority of the basic rights even over constitutional laws is certainly obscured by the fact that a federal regulation of the relationship between the Reich and individual states is established, while at the same time
the relationship of basic rights and constitutional law is apparently not addressed
insofar as it is an afair of the Reich. Moreover, an analogous lack of clarity is evident in the basic rights of the federal constitution of the United States of America
(Boutmy, Etudes, p. 94f.). But apart from this federal law aspect, the question remains whether basic rights can be eliminated by way of a constitution-amending
statute. his question was posed by the 18th Amendment of the constitution of the
United States of America (prohibition of alcohol). But it was also handled primarily
from the perspective of a federal state (William L. Marbury, Harvard Law Review
1919/20, p. 223f.; above § 11, II, p. 106). Nevertheless, it is also of interest in this connection that the question of principle regarding the boundaries of the authority for
constitutional changes has also not yet been decided in American practice.
3. Even though with varying degrees of efectiveness, the guarantee of
every genuine basic right directs itself irst to the posts with the jurisdiction for constitutional revisions, and, in particular, it does so diferently
depending on whether these oices emerge as bearers of the constitutionally assigned authority for constitutional revisions or as bearers of the auhe Basic Rights
215
thority for apocryphal acts of sovereignty (p. 108). Such a guarantee next
directs itself to the posts with jurisdiction for the issuance of simple statutes and inally to the remaining state oicials, especially the so-called executive. he opposition movement against the executive became noticed
primarily or almost exclusively as a result of the political struggles of the
liberal bourgeoisie, which in Europe worked principally against monarchical absolutism. he primary interest of this movement aimed at preventing
intrusions and restrictions stemming from royal decrees and at subjecting
the administration, in particular the police, to law in the form of statutes,
thereby enforcing the principle of the legality of administration. Because
of this historically declared interest in a deinite aspiration for basic rights,
their principled meaning often remained unnoticed. Entirely overlooked
was the central distinction of the general statute as the foundation of the
concrete act of legal application. Consequently, the variable content of this
guarantee’s diferent goals [179] was also overlooked. And because today
the legality of administration, in particular that of the police, has become
something self-evident, one can—erroneously—treat these basic rights as
“useless.”
In regard to their legal status, R. homa, Festgabe, presented the following distinctions among the “basic rights.” Some have “constitutional force,” in his terms.
More speciically, an exception cannot be made on the basis of a simple statute, but
rather only by virtue of a constitutional provision and on the basis of a constitutionamending statute. Hence the right of access to ordinary courts and the prohibition
of exceptional courts (Art. 105) both have constitutional force. Other, and indeed
most, basic rights only have the “force of law”; that is to say, exceptions and limitations can be established by simple statute. In this regard, one must again distinguish
between whether the Weimar Constitution requires a Reich statute (the so-called
force of Reich statute, for instance in Art. 117; exceptions from the privacy of the
mail can only be declared permissible by Reich statute; or Art. 112, which stipulates
that emigration can only be limited by Reich statute) or whether an individual Land
statute also facilitates such limitations and intrusions (the so-called basic rights
with the force of individual Land statutes). Remarkable in this regard is the fact that
the most important and fundamental basic rights, such as personal freedom and the
inviolability of living quarters (Art. 114 and 115, respectively), only have the force of
individual Land statutes, and because the principle of the legality of administration
became something self-evident, they are practically “useless.” In contrast to this,
one must reairm the belief that every genuine basic right has constitutional force
and cannot be eliminated by constitution-amending statute. Even independent of
the principle of the legality of administration, the scope of limitations established
by legislation is measured according to the principles of the Rechtsstaat statute, and
every basic right also binds the legislature, the Reich as well as the Land legislature.
herefore, it is in no way “useless” when one ignores the principle of the legality of
administration as something self-evident.
hat R. homa can distinguish “constitutional force,” more precisely, the
“force of constitutional law,” from basic rights with merely the “force of law”
216
he Basic Rights
is explicable irst of all from the fact that the concept of the basic rights
was impermissibly extended to the most diverse constitutional guarantees,
so that, in particular, institutional guarantees could be intermingled and
confused with basic rights. In fact, the institutional guarantee establishes a
special protection against simple legislation, and homa’s expression “force
of constitutional law” is most apt here. he clearest example of a right with
constitutional force is the right of access to ordinary courts, which is guaranteed in Art. 105, speciically with the wording “Exceptional courts are unacceptable. No one may be removed from the jurisdiction of a judge established by law.” It is certainly rightly assumed that these two clauses have
the same content in the sense that the second sentence is the more general
and the prohibition of exceptional courts is only a further speciication of
the right of access to ordinary courts (E. Kern, [180] Der gesetzliche Richter,
1927, p. 234). Moreover, this provision is an exceptional instance of equality
before the law (Art. 109). However, this “right of access to ordinary courts”
means, in fact, an institutional guarantee. It shows especially clearly how
exceptional guarantees enter into the Constitution on the basis of certain
historical and political experiences, in order to give efect to a protection
against the misuse of the legislative jurisdiction. Another example of this
type of special protection is the prohibition of criminal statutes with retroactive force and ex post facto laws, such as Art. 116, which provides that “an
action can only be punished when its punishable character was determined
by statute before the action occurred.”
Such constitutional guarantees are explicable in concrete historical terms
from the concern for speciic dangers, which one fears because of certain
experiences. hey serve only indirectly the basic rights’ principle and are
not themselves “basic rights.” hey contain a special protection against the
misuse of legislative authority, a special guarantee for the security of the
separation of powers and for the preservation of the Rechtsstaat concept of
law. hey prohibit an act of sovereignty by the legislature, which constitutes
a rupture of the valid legal order. For the case of an extraordinary endangerment of state security and order, it is necessary to have a special type of
regulation that eliminates any of these constitutional bonds and that has led
to the elaboration of legal concepts such as state of war, state of siege, and
state of exception. A “statutory reservation,” in other words, a provision
that is determined in advance, deinable, general, and subject to review,
is only meaningful in regard to genuine basic rights, but not in regard to
such institutional guarantees. “Ordinary court,” for example, presupposes
a court organization and a jurisdictional order, not an unbounded liberty
sphere in which one can intervene on the basis of the statutory reservation.
he diversity of the constitutional guarantees reveals itself still more clearly
he Basic Rights
217
when a positive individual provision is constitutionally guaranteed, such
as, for example, religious instruction as a compulsory subject in schools
(Art. 149, 1, p. 1) and the right of civil servants to the privacy of personal
papers (Art. 129, 3, p. 3), etc. It is self-evident that such “guarantees” have
“constitutional force.” However, it would certainly misconstrue the positive
principle of a [181] modern Rechtsstaat constitution if one intended to give
such accidental details of the constitutional order a more secure guarantee
than the fundamental principle of the basic rights themselves.
4. Several instances of unclear constitutional provisions in the Second
Principal Part of the Weimar Constitution are also ultimately explicable
from the great lack of clarity over the diverse nature of constitutional guarantees and from the misuse propagated by the term basic right. It must be
reairmed that in a bourgeois Rechtsstaat only the liberty rights of the individual person are considered basic rights because only they can correspond
to the fundamental distributional principle of the bourgeois Rechtsstaat,
which is a liberty sphere that is unbounded in principle and state authority
for intrusions that is bounded in principle. All other rights, however important they are considered and regardless of the legal force of the guarantees and explicit commitments they receive in the constitutional order, can
always only confer rights that are limited in principle. hat applies to all
institutional guarantees. he recognition of the diferent rights of civil servants, which the Weimar Constitution established in Art. 129 and Art. 130,
shows the diference very clearly. Art. 130, 2, provides that “all civil servants
are guaranteed the liberty of their political conscience and the freedom of
association.” At this point, a general human liberty right is combined in a
contradictory manner with an institutional guarantee. he civil servant has
as such a special status with all that such a concept entails. his status does
not exhaust itself in a series of individual commitments. he civil servant
has the duty of idelity, of professional compliance, of oicial silence, of a
digniied bearing even outside the oice. his special status is very diferent
from that of being a general “person.” One can say that the concept of the
civil servant was always very suspect to the radical representatives of bourgeois liberalism. But, in this regard, the Weimar Constitution deinitely
intends to continue the great tradition of the German civil servant state
despite the altered state form and to preserve for the German people the
distinctive strengths and values of this civil service. Hence arose the institutional guarantees of Articles 129 and 130. In a manner characteristic of the
mixed character of the Weimar Constitution, two principles [182] are again
placed side by side and the possibility of conlict is ignored. If implemented
with logical consistency, a freedom in the sense of a general human right,
which is unlimited in principle, must eliminate the concept of the civil servant. For it would be inconceivable that in regard to his subjective rights
218
he Basic Rights
and entitlements the civil servant may lay claim to the advantages and distinctions of his special status, but in regard to his duties he is permitted to
make recourse to the in principle unrestricted individualistic “liberties” of
the liberal isolated person, the freedoms, in other words, of the non–civil
servant. If the civil service should be retained as an institution, then in cases
of conlict the special status of the civil servant should be given priority. he
status obligations of civil servants have full priority over the guarantees of
the freedom of association and of the freedom of political conscience. he
fact that certain preexisting limitations on the freedom of association and
on the free expression of opinion are being eliminated restricts the meaning of these constitutional guarantees under Art. 130. Otherwise, it remains
a fundamental distinction whether the general human right of the freedom
of conscience and of association of the single person is secured or whether,
under retention of the institution of the civil service, such “liberties” are
guaranteed to the civil servants. In the one case, it is a matter of a genuine
basic right, which is presupposed as a liberty sphere that is in principle
unlimited. he other case involves constitutionally legislated special provisions in connection with an institutional guarantee.
he Basic Rights
219
§ 15.
he Separation (So-Called Division) of Powers
he separation of powers contains the second principle of the Rechtsstaat
component of a modern, free, bourgeois constitution.1 It is the organizational principle, the execution of which should ensure that all grants of
state power are deinable and subject to review.
I. he historical origin of the separation of powers theory.
he experiences that the English people had with the rule of their Parliament during the irst English Revolution led to theoretical and practical
attempts to distinguish and separate the diferent [183] areas of the exercise of state power from one another. he most important and fundamental distinction that resulted was between law as an enduring, general norm
that is binding for all, even for the legislature itself, a law, consequently,
that may not violate the constitution in an individual case, and the other
instances of the exercise of state will. Cromwell’s “Instrument of government” of 1653 counts as the irst example of a practical attempt at this division (above § 4, II, p. 40). In opposition to the Parliament he had dissolved
three times, Cromwell generally strove to create a strong government
capable of acting. In connection with these experiences arose a theory of
the necessity of the separation and of the reciprocal control of the diferent
branches of state activity. Harrington (Oceana) attempted to draft a complicated system of reciprocal controls and limitations. Locke (Treatises
on government) distinguished the legislative authority, which establishes
general, a priori, stable rules, from the executing and federative power.
his inal one is the power for external afairs that cannot be bound to
general norms, because it is too dependent on the changing foreign policy
situation (Civil government, § 147, cf. Schmitt, Die Diktatur, p. 42). Also
already found in Locke is the oft-repeated justiication of the separation
of the legislative and executive powers that it is not good when the same
persons who make the laws also apply them, because a statute immediately loses its character as law when the legislature can use the form of the
statute for any given individual commands and measures. It is noteworthy
that this justiication applies fully to a system of “irreconcilabilities,” of
incompatibilities. Connected with the distinction of several “powers” is
the further organizational idea of introducing additional divisions inside
the state realms of activity already distinguished in this way, in order to
achieve a maximum of the means of supervision and restriction (checks
and controls). he distinction facilitates not only the separation of powers,
because otherwise a disconnected jumble of isolated state activities would
arise; rather, it also has the goal of producing a balance, or “equilibrium,”
among them.
he idea of a counterpoise, of a “balance,” of opposing forces has dominated
European thinking since the sixteenth century. It expresses itself in the theory of
the foreign policy balance (at irst, of the ive Italian states among themselves, then
of the European balance of power). It is also expressed in the [184] balance of imports and exports as the trade balance; in the theory of the balance of egoistic and
altruistic impulses in the moral philosophy of Shaftesbury; and in the theory of balance stemming from attraction and repulsion in Newton’s theory of gravity, etc. On
this, cf. the references in Diktatur, p. 103. See additionally Karl Pribram, “Die Idee
des Gleichgewichts in der älteren national ökonomischen heorie,” Zeitschrift für
Volkswirtschaft, Sozialpolitik und Verwaltung XVII, 1908, p. 1f., which views the
theory of the static balance between the collective phenomena of the human economy as something peculiar to all mercantilist theories.
he actual progenitor of the constitutional-theoretical teaching of the balance
of powers is Bolingbroke, who propagated the idea of a reciprocal control and balancing, however, only in politically engaged writings and essays, not in a systematic
exposition. he expressions that he used for this are reciprocal restrictions, reciprocal control, reciprocal delay and detention, etc. Of special signiicance for the ideal
constructions of the English constitution is an idea of the tripartite balance and of
the “equilibrium of powers,” out of which the free government results: king, upper
house and lower house; between king and Parliament (speciically, upper house and
lower house taken together), between legislature and executive, between the prerogatives of the king and the freedom of the people. All these should be “balanced.”
he most important writing on the topic, he Idea of a patriot King, 1738, merits consideration. See additionally, the “Dissertation On parties [sic],” 1733/4. he
writings mostly appeared as essays in the weekly publication “he Craftsman,” 14
volumes, 1726–1736. On this, see Walter Sichel, Bolingbroke and his Times, London
1901, II, p. 250 f. he deinitive terms read: to check, to controul, to counterwork,
to arrest, to restrain [English in Schmitt’s original]. Other expressions appear in the
philosophical and in the assorted works (Edinburgh 1775 and 1779). he “patriotic
king,” as Bolingbroke conceives him, is the chief executive, who already bears the
conidence of the people. his is an idea that, according to Richard Schmidt (Der
Volkswille als realer Faktor des Verfassungslebens und Daniel Defoe, Verhandlungen
der Sächsischen Akademie der Wissenschaft, 1924, Vol. 76, p. 34), is traceable back to
Defoe, who saw in the people’s public opinion a power that could protect the minister against Parliament. All these ideas are of great signiicance for the construction
of modern democracy. Cf. below in the section on the parliamentary system, § 24,
p. 304.
Under the inluence of Bolingbroke, Montesquieu drafted an ideal image
of the English constitution in the famous chapter 6 of the 11th book of his
“Espirit des lois” (1748). he deinitive statement runs: “In every state, there
are three types of public power, the legislative power, the executive foreign
power, and the executive domestic political power. On the basis of the irst
power, the prince or governing authority issues new laws for a certain time
or in perpetuity, and he improves or eliminates the older laws. On the basis
of the second power, he declares peace or war, sends and receives emisSeparation of Powers
221
saries, provides for security, and responds to hostile attack. On the basis
of the third power, crimes are punished and civil law disputes are settled.
his last one is the judicial power.” On this third power, Montesquieu makes
use of the rather suggestive saying that it is “to a certain [185] degree not
present,” “en quelque façon nulle.”2 herefore, only the distinction between
the legislative and executive branches remains of genuine interest. his
principle already makes clear that the executive is by no means only deined by legal application, but rather by the actual activity of the state. Also,
it would be incorrect to assign the current practice of the rapid and voluminous production of laws to Montesquieu’s “legislative” branch. he goal
of his distribution (division) of the diferent branches of state activity is
one power checking the other. “Le pouvoir arrête le pouvoir.” In this way, a
counterpoise, a balancing, should be achieved.
In the 1787 federal constitution of the United States of America, the system of separations is consciously applied and enforced. In other words, not
only are reciprocal checks and controls enforced, but efective separations
of power are also instituted to a great extent. he legislative branch (divided again into two chambers, the House of Representatives and the Senate, which together form the Congress, that is to say, the legislative body) is
separated from the executive (the president), and, when possible, a direct
negotiation between both is avoided. he president (the government or executive), consequently, does not have his own power of initiative. his is
even the case when he is presented a draft statute to which he objects. Such
objections can only be overturned by a two-thirds majority decision of the
house from which the draft originates.3 he president has no power of dissolution against both houses. He is not dependent on the conidence of this
legislative body, etc.
he constitution of the year 1791, the irst constitution of the French
Revolution, speaks for the irst time of a separation of powers (séparation
des pouvoir[s], instead of division, cf. Duguit, Manuel, p. 316f.). Nevertheless, to the same limited degree as the American federal constitution, an
absolute separation, more accurately isolation, cannot be instituted. More
precisely, a system of reciprocal checks and connections is produced that
corresponds to the idea of a balance. [186]
A great multiplicity of expressions and of perspectives on the general principle of
organization of the separation of powers derives from this overview. he most general and comprehensive expression may be the phrase “separation of powers” suggested here. “Separation” means a complete isolation, one, however, that serves as a
point of departure for the wider organization and then in the extended order again
permits some connections. “Division” correctly means a distinction inside one of
the several powers, for example, the division of the legislative power into two houses
like a senate and a house of deputies (W. Hasbach, Die parlamentarische Kabinettsregierung, 1919, pp. 3/4). In this way, a typical organizational schema arises with
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three powers, legislative, executive, and adjudicative. his triad is generally established, although theoretically perhaps additional “powers” could be and were in fact
construed. As noted, there is no constitution of the bourgeois-Rechtsstaat variety
whose organizational structure is not dominated by the principle of the separation
of powers.
II. Separation and balancing of powers. here are two perspectives regarding the separation of powers. First of all, there is the institution of
a separation of the highest state oicials and their jurisdiction, then the
establishment of a connection, the reciprocal inluencing and balancing of
the authorities of these distinguished “powers.” A certain separation is necessary, so that a distinction is possible. If it can also be instituted without
interruption to the point of a complete isolation, it is irst and foremost to
be viewed as an independent perspective of this organizational principle
itself.
1. he schema of a strictly implemented separation must result in the
legislative, executive, and judicial branches representing three organizations of state activity that are detached from one another. No oicials and
no part of a department may simultaneously belong to another department,
so that the most strictly deined incompatibility exists, in particular an incompatibility between the position of a deputy of the legislative body and
that of a civil servant of the state administration, even that of a minister.
No administrative civil servant may serve as judge. No judge may serve as
administrative civil servant, nor may an oicial of one department exercise
jurisdiction that, according to its substantive content, belongs in the other
one. No oicial of one department may exercise an oicial power over an
oicial of another one. It would belong to the logic of this strictly implemented separation that the legislative bodies may exercise no inluence on
the government. A parliamentary government, one that is dependent on
the conidence of the majority of the legislative body, would contradict this
[187] strict separation and, for this reason, is avoided in the constitution of
the United States of America. From the necessity of the separation, however, one could even draw the conclusion that no judicial control over acts
of the legislature may take place, which means that the judicial review of
the constitutionality of laws, as the highest court of the United States of
America exercises it, runs against the logically instituted schema of a separation of powers. In these examples, it is already evident that in regard to
the system of a “separation of powers,” it is in no way a matter of a historically concrete organization that would be executed fully in every detail, but
rather only of a theoretical schema whose construction clariies the organizational principle.
In the following, it is appropriate to portray one such theoretical schema.
Speciically, L = legislative, E = executive (speciically, government and adSeparation of Powers
223
ministration together or one of both; government can once again signify
the head of state, king or state president, or the cabinet), J = judiciary.
heoretical Consequences of a Strict Separation:
1. No Efect of E on L (Government in Opposition to Parliament)
(a) he government has no authority to convene parliament.
According to Art. 24, “he Reichstag assembles every year on the irst Wednesday of November at the seat of the Reich government. he president of the Reichstag
must convene it earlier, if the Reich President or at least a third of the members of
the Reichstag demands it. he President has an indirect authority to convene the
parliament, but the Reich government does not have one as such. According to the
federal constitution of the United States of 1787, the president has the authority to
convene Congress only in extraordinary cases. It is exactly the same for the executive according to the French Constitution of the Year III (1795, Constitution of the
Directory). According to Art. 1 and 2 of the French Constitutional Law of 16 July
1875, the president of the Republic has the authority to convene the chambers of the
legislature.
(b) he government does not have legislative initiative.
hat is the case with the federal Constitution of the United States, though the
statutory draft is presented to the president, who signs it and supplies it with remarks.
It is diferent with Art. 68, according to which the Reich government suggests
and passes draft statutes. Moreover, there is the Reichstag’s right of statutory initiative. [188]
(c) No joint vote on statutes.
It was diferent under the German constitutional monarchy. Take, for example,
Art. 62 of the Prussian constitution of 30 January 1850, according to which statutes
come about through a collaborative decision of the king and of both chambers.
A distinctive feature of the federal Constitution of the United States is that the
objections of the president against the draft statute can only be overturned with a
two-thirds majority of the house from which the draft statute originated.4 Cf. note b
above.
(d) No enabling acts and no delegation of the legislative jurisdiction.
Cf. the Constitution of the Year III (1795 Constitution of the Directory), Title V,
45, according to which the legislative body cannot at all delegate its functions to
one or more of its members or anyone else. It is diferent with German public law
practice, which contains numerous enabling acts with often boundless delegations
(cf. on this H. Triepel, Verhandlungen des 32. deutschen Juristentages, 1921, p. 16, and
Poetzsch, ibid., p. 42f.; H. Triepel, Goldbilanzen-Verordnung und Vorzugsaktien,
1924, p. 7f.).
(e) No executive veto.
he Weimar Constitution permits no veto by the President or by the Reich government; by contrast, it ofers other opportunities for inluence (cf. below f ).
he French constitution of 1791 ofers an example of a suspensive veto by the
king.
(f ) No order of a popular initiative by E opposed to a decision of L.
For a contrasting instance, see Art. 73, 1, which provides that “(a) statute con-
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Separation of Powers
cluded by the Reichstag is to be subjected to a popular initiative before its promulgation, if the President decides to do so within a month.”
(g) No preparation and promulgation of the statute by E.
he constitutions of the constitutional monarchy and Art. 7 of the French Constitutional Law of 16 July 16 1875 (the president of the Republic promulgates laws)
provide otherwise. Additionally, Art. 70 of the Weimar Constitution stipulates that
“the President has to process statutes arising in a constitutional manner and promulgate them in the Reich Legal Gazette within the legally required one-month
period.”
(h) No dissolution of the legislative body by E.
It is diferent with the constitutions of the constitutional monarchy, Art. 5 of the
French Constitutional Law of 25 February 1875 (without practical efect since 1877),
and Art. 25 of the Weimar Constitution, which reads: “he President can dissolve
the Reichstag, but only once for the same reason.” [189]
(i) No authority for pardons by E.
On the point that the king’s authority for pardons was perceived as a violation
of the principle of the division of powers and as an intrusion into the legislative
branch, see Redslob, Staatstheorien, p. 347.
he constitutions of the constitutional monarchy provide otherwise. See, for example, Art. 3 of the French Constitutional Law of 25 February 1875 and Art. 49 of the
Weimar Constitution stipulating that “the President exercises the right of pardon
for the Reich.”
(k) Freedom from accountability and immunities of the deputies in regard to
courts and other oicials.
his is the case with almost all modern constitutions. Take, for example, Art. 36
of the Weimar Constitution, according to which “no member of the Reichstag or
of an individual Land parliament may be prosecuted judicially or internally at any
time because of his vote or because of statements made in the exercise of his duty
or otherwise be made accountable outside of the assembly.” Additionally, see Art.
37 of the Weimar Constitution. “No member of the Reichstag,” it provides, “or of
an individual Land parliament, without approval of the house to which he belongs,
may be investigated or arrested during the session because of an action subject to
criminal sanction, whether the member is apprehended in the act or at the latest
during the following day. he same approval is necessary for any other limitation of
personal freedom that impinges on the exercise of the deputy’s duty. Every criminal
trial against a member of the Reichstag or of an individual Land parliament and
every arrest or other limitation of his personal freedom is abrogated on demand of
the house to which he belongs for the duration of the legislative session.”
Even more extensive privileges of the members of legislative bodies are justiied
with arguments from the separation of powers. Hence the exemption of deputies
from military service and parliament’s authority to recall deputies from the front
during wartime. On this issue, cf. the report on Accambray’s proposed statute, in
the book by Léon Accambray, Qu’est ce que la République? Paris 1924, p. 356, with
the interesting statement by Josef Barthélemy. If parliamentarians could be mobilized for military service, the parliament may not convene; but if the parliament
may convene, the parliamentarians may not be mobilized. Note the reference to the
separation of powers already in the Convention of 1793, p. 358. he draft statute on
the organization of the nation in times of war of 1927 contains the rule expected in
Separation of Powers
225
these circumstances. It provides that the members of the government who conduct
the war and the members of parliament, which is the expression of national sovereignty in war and peace, remain at their duties during the mobilization; if they wish,
however, they can join their unit.
(1) Strict execution of incompatibilities.
To derive the entire theory of incompatibility from the separation of powers corresponds especially closely to the French understanding (thus Pierre, [190] Droit
politque, électoral et parlementaire, I, p. 316). his is already clearly the case with
the constitution of year 1791 (Title III, Cap. I, Sect. III, art. 4, 5). Even the wideranging incompatibility between the position of a civil servant and that of a deputy,
which today is still valid French law, is mostly justiied in this way. Art. 21, 2a, of
the Weimar Constitution, corresponding to Art. 7, 3, of the Prussian constitution
of 1850, provided that “if a member of the Reichstag assumes a compensated Reich
oice or in a federal state a compensated state oice; or if a Reichstag member
enters into an oice in the Reich or state service that is connected to a higher rank
or with a higher remuneration, the member loses his seat and vote in the Reichstag,
and he can only regain his position in it through an election.” Otherwise, extensive
incompatibilities are foreign to German public law (“excluding civil servants from
the popular assembly at least does not correspond to German circumstances,” according to G. Waitz, Grundzüge der Politik, 1862, p. 65). Civil servants (the Prussian Land councils in the Land parliament!), whose participation one was loath to
renounce, sat in parliaments. he principle of the separation of powers was mostly
overlooked (cf. the ignorant remark in the essay by W. Clauss, Der Staatsbeamte als
Abgeordneter, Karlsruhe, Heft IX of the Freiburger Abhandlungen, p. 5, which until
1927 was the single monographic treatment in the German public law literature).
he single systematic expression in the prior German public law literature is found
in E. Kaufmann, Bismarcks Erbe in der Reichsverfassung, p. 72. he case of a genuine
incompatibility in the Reich Constitution of 1871 resulted from the Reich’s federal
state structure. According to Art. 9, 2a, “no one” could “simultaneously be member
of the Bundesrat and of the Reichstag.” It is certainly explicable only as an afterefect
of the long struggle against this Art. 9a. that under the Weimar Constitution there
is not one instance of an incompatibility between membership in the Reichstag and
that in the Reichsrat, whereas in Prussia there is indeed an incompatibility (Art. 33,
2, of the Constitution of 1920) between the Land parliament and the state council. In
Art 44, the Weimar Constitution contains an incompatibility that is very important
in terms of principle, one that arose from the principle of the separation of powers:
“he President cannot simultaneously be a member of the Reichstag.” Other incompatibilities of currently valid public law include § 123 of the Reich Budget Order of
31 December 1922, Reichgesetzesblatt II, 1923, p. 17 (incompatibility between membership in the Reichstag and the Budgetary Court) and in § 1, 2, of the Code of the
German Reich Rail Company, Addendum to § 1, 2 of the Law on the German Reich
Rail Company of 30 August 1924 (Reichgesetzesblatt II, p. 281). “he members of the
administrative council (of the Reich Rail Company)” it provides, “must be experienced experts in the economic life or in the technical aspects of the railroads. hey
may not be members of the Reichstag, of a Land parliament, of the Reich government, or of a Land government.”
Other incompatibilities resting on organizational and structural diferences
are foreign to German public law, [191] in particular the irreconcilability of a religious oice with that of a parliamentary deputy that follows from the diference be-
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Separation of Powers
tween church and state. On this, see the discussions in Tocqueville, La Démocratie
en Amérique, I, p. 358, who views this incompatibility as a safeguard of democracy
in America. On so-called economic incompatibilities, see below § 19, II, 2, p. 255.
Concerning the important question of the incompatibility of parliamentary deputies and civil servants, a signiicant change of the sense of this irreconcilability is
noteworthy, one that is demonstrated in Werner Weber’s distinguished 1928 Bonn
dissertation on incompatibility. he earlier goal was protection of the independence
of deputies (incompatibility in this regard, therefore, is also treated under the separation of E from L). Today, under the rule of parliamentary majorities, the opposite
sense becomes valid with the protection of the moral and substantive integrity of
civil servants against partisan inluence and allegiance.
2. No Inluence of L on E
(Parliament opposed to government and administration)
(a) General prohibition of the preemption of executive acts by L.
One such preemption is found in Art. 46 Title V of the Constitution of the Directory of the Year III (1795). Today, such a general prohibition is no longer expressed
because of the budget law of parliament and its authority for parliamentary supervision.
(b) No selection of the chief of state or of the government by L.
Art. 2 of the French Constitutional Law of 24 February 1875 is quite diferent in
that it provides that the president of the Republic is selected by a “national assembly,” which is a legislative body arising in such a way that both chambers (Senate and
House of Deputies) convene as one body. Also diferent is Art. 45 of the Prussian
constitution of 1920. here the Land parliament selects the minister president without deliberation, and the minister president appoints the other state ministers (the
chief of state, however, appoints the state ministry).
he Weimar Constitution, by contrast, strictly implements the principle of
the separation (according to the model of the federal Constitution of the United
States). Art. 41, 1, stipulates that “the Reich President is elected by the entire German people,” while, according to Art. 53, “the Reich Chancellor is appointed and
dismissed at his suggestion; the Reich ministers are appointed and dismissed by the
President.” In this regard, however, cf. section d. below.
(c) No complaint authority and no court claims of L against E.
By contrast, see the system of ministerial and presidential complaint by the
Chamber of Deputies, with the power of judgment of the other chamber (upper
house) serving as a state high court. Hence Art. 9 of the French Constitutional Law
of 24 February 1875, discussed above § 12, 5b, p. 135. [192]
he Weimar Constitution honors the perspective of separation insofar as a special Staatsgerichtshof for the German Reich decides on the complaint raised by the
Reichstag, Art. 59. (above p. 135).
(d) No dependence of the government on the conidence of the parliament (no vote
of no conidence).
Hence, the federal Constitution of the United States of America of 1787, the
French constitution of 1791, and the constitutions of the German constitutional
monarchy.
Art. 54 of the Weimar Constitution difers: “he Reich Chancellor and the Reich
ministers require the conidence of the Reichstag for the execution of their oice.
Separation of Powers
227
Each of them must resign if the Reichstag withdraws its conidence through explicit
decision.”
(e) No petition of L for the removal of the chief of state by popular vote.
Contrast Art. 43 of the Weimar Constitution. “Before the expiration of the term
(the period of oice of seven years),” it reads, “the President can be removed by
popular vote at the instigation of the Reichstag. he Reichstag vote requires a twothirds majority. By this decision, the President is prevented from further exercise of
the oice. he rejection of the removal by the popular vote counts as a new election
and results in the dissolution of the Reichstag.”
(f ) No consent of L to the criminal prosecution of the chief of state.
Art. 43, 3, is diferent. It stipulates that “the President cannot be prosecuted
under criminal law without consent of the Reichstag.”
(g) he very strong, but indirect efects of L on E, which lie in parliament’s budgetary authority, are not considered a violation of the principle of the separation
of powers, so long as the parliament restricts itself to the mere supervision of the
budget law and avoids direct instructions and interventions.
3. No Efect of E on J
(Government and administration vis-à-vis adjudication)
he guarantees of judicial independence, especially the irremovable and irreplaceable status of the judicial oice, facilitates this separation of E and J. Art. 102 of
the Weimar Constitution reads that “judges are independent and subject only to the
law,” while Art. 104 provides that “judges of ordinary judicial claims are appointed
for life. hey can be deprived of their oice against their will, either permanently
or temporarily or be placed in another position or into retirement, only by virtue
of judicial decision and only for reasons and under the forms that are set by law.
Legislation can establish age limitations at which judges enter retirement.” hese
provisions of the Weimar Constitution are placed entirely in the [193] context of
the typical Rechtsstaat guarantee of this separation. he organization of a special
administrative adjudication is also established with the separation of E and J. Cf.
section 4a.
4. No Efect of J on E
(Adjudication in contrast to administration)
(a) Establishment of special administrative courts.
he establishment of special administration courts constitutes a rejection of
ordinary court review of state administration, hence the rejection of the pure adjudicative state. See above § 12, II, p. 132.
(b) Institution of special courts for the resolution of jurisdictional conlict.
§ 17 of the German law of judicial organization provides that Land legislation can
transfer to special oicials the task of resolving disputes between courts and administrative oicials or administrative courts over the accessibility of the legal process.
(c) he raising of a complaint of the so-called conlict during the criminal prosecution of or civil law challenges to civil servants.
he conlict induces the administrative oicial to remove the trial from the ordinary courts and bring about a settlement or at least (for the question of exceeding
oicial authority) a preliminary judgment of an administrative oicial or of an ad-
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Separation of Powers
ministrative court. he Prussian statute of 16 November 1920 (Gesetzessammlung
1921, p. 65) eliminated this cause of removal.
5. No Efect of L on J
(Parliament in contrast to court doctrine)
(a) Constitutional guarantee of judicial independence. (On this, cf. section 3
above.)
(b) Rechtsstaat concept of law.
Impermissibility of individual commands and of parliamentary justice (above
§ 13, p. 155).
(c) No parliamentary investigative committees with judicial powers.
Art. 19 of the 1920 Danzig constitution provides that “investigative committees
may not intervene in a pending judicial or internal administrative review.”
he Weimar Constitution does not contain any of that type of guarantee of the
separation of L and J. “he Reichstag,” according to Art. 34, “has the right and, on
petition of one-ifth of its members, the duty to initiate investigative committees. In
public proceedings, these committees raise the evidence that they or the petitioners
deem necessary. . . . he courts and administrative oicials are obligated [194] to
comply with formal requests from these committees for the production of evidence;
oicial documents are to be presented to them on demand. he provisions of the
law of criminal procedure inds appropriate application to the investigations of the
committees and the oicials investigated by them, but the secrecy of letters, packages, telegraph, and telephone is unafected.”
hat the same set of facts is simultaneously made the object of investigation by
judicial oicials and by such a parliamentary investigative committee (alongside an
investigative committee of the Reichstag perhaps another such committee of a Land
parliament) is in itself still not considered a violation of the independence of the
judiciary, despite the potential negative consequences for evidentiary materials that
this entails. On this, see E. Jacobi, Verhandlungen des 34. Deutschen Juristentages,
1926, p. 69f.
(d) No judicial powers of a legislative chamber.
It is diferent with the constitutional provisions that establish the upper house or
the Senate as a Staatsgerichtshof for ministerial complaints or for political crimes
(see section 2c above).
Tocqueville, La Démocratie en Amérique, bk. I, chap. 7, sees a “confusion of
powers” in such a “jugement politique,” a confusion, however, that is permissible
as long as only public servants, but not every citizen, can be afected by this type of
justice.
6. No Efect of J on L
(Judiciary opposed to parliament)
An enforcement of this principle of separation in this case would result in the
courts not having any jurisdiction to review statutes. For example, the French constitution of 1791, Tit. III, cap. V, Art. 3, provides that the courts may not interfere in the
exercise of the legislative power or suspend the execution of statutes. In this regard,
it is precisely like the constitution of 1795. Additionally, the Austrian federal constitution of 1 October 1920, Art. 89, provides that “the review of the validity inhering
Separation of Powers
229
in promulgated statutes is not granted to the courts.” he simple statutes concluded
by parliament may not be reviewed for their conformity with constitutional provisions. he statutes concluded via the procedure for constitutional revision may not
be reviewed for whether they exceed the boundaries of the amendment authority
(above § 11, II, p. 103). his power of judicial review is above all rejected by French
jurists on the basis of the principle of the division of powers, with the justiication
that the exercise of the right signiies an intrusion of J into L. See Esmein-Nézard, I,
pp. 563, 589f.; additionally Redslob, Staatstheorien, p. 316f.; but also, for example,
Kahl in the constitutional committee of the Weimar National Assembly, p. 485. In
contrast to this, the American practice of the judicial [195] review of laws for their
constitutionality is justiied by the fact that there is no intrusion in the legislative
power, because the judge does not eliminate the law, which he considers unconstitutional, but instead only declines to apply it for the individual trial before him. his
justiication does not violate the principles of Rechtsstaat organization insofar as
there is no intrusion of the judge into the legislative power if he declines to apply a
statute properly concluded in formal terms, but rather only exercises a control and
“restriction.”
Since the famous decision of the Reichsgericht of 4 November 1925 (RGZ v. 111,
p. 322), German legal practice airms judicial review after other high courts had
already previously assumed their jurisdiction for review (cf. Giese p. 210; additionally, Reichsversorgungsgericht, 21 October 1924, vol. IV, p. 168; 30 July 1925, vol. V,
p. 95). hese decisions ind support in the consideration that the judge may not
apply a law because it is substantively invalid. A simple statute can set itself above
“the constitution.” In the decision RGZ vol. 111, p. 322, the Reichsgericht states that
the fact that the judge is subordinated to the law “does not preclude the denial of
validity to a Reich statute or to one of its individual provisions by a judge insofar as
it stands in contradiction to other prescriptions that are prior to it and that must
be respected by the judge. hat is the case when a law contradicts a legal principle
established in the Reich Constitution, and if in the issuance of the law the prescribed
requirements for constitutional amendment under Art. 76 have not been met.” Following that is the interesting clause: “Since the Reich Constitution itself contains
no provision, according to which the decision on the constitutionality of Reich statutes may be withdrawn from the judge and would be transferred to another speciic
oice, the authority and duty of the judge to review the constitutionality of Reich
statutes must be recognized.” hat type of a justiication evades the actual diiculty.
hat the courts have such a review power and decide doubtful cases deinitively
does not at all follow from the fact that no other oice is constitutionally provided
for the review of statutes. Also, in this regard is the question: who decides? It is not
answered by the justiication that the Reichsgericht gave. One can say that every
state post itself must undertake this review, and that if a state act that is formally
in order occurred inside a department, it is only in exceptional cases that one can
assume the nullity of the defective state act. And it is precisely as an exceptional
case that such an act can be made valid, regardless of whether it is rendered valid
by an oicial or by an individual. W. Jellinek has rightly pointed to the implications
of this problem. It is not enough, therefore, to stress the substantive illegality of an
unconstitutional law. In regard to such formally correct statutes, it is nevertheless
usually a matter of cases in which the unconstitutionality can be thrown in doubt.
[196] A simple Reichstag majority will hardly dare an obvious violation of the clear
wording of a constitutional provision. However, when it is a matter of the resolution
230
Separation of Powers
1. Example: Schema of a balancing of L and E
Reciprocal inluence and efect, weight and counterweight
Legislative
and
Executive
Statutory initiative by E in opposition to L (exclusively or concurrently, Art. 68)
Passage of statute by L;
Art. 68, 2.
Carrying out of a referendum via
E against a decision by L (Art.
73)
No conidence vote by L against
E (Chancellor and Minister)
Art. 54
Dissolution of L via E (President),
Art. 25
Petition for removal by L against
E. (President), Art. 43, 2
Ministerial and presidential
complaint via L, Art. 59.
he people
hold the balance and are the deciding factor.
of doubtful cases, then the entire problem changes, and it is no longer resolvable by
the fact that one renders valid undoubtedly unconstitutional laws. For the question
is not whether unconstitutional laws are invalid. hat is self-evident. he question,
rather, is who resolves the doubts about the constitutionality or unconstitutionality
of a law. Who, therefore, is competent to make this distinctive decision, and whether
the competent oicials, in the framework of their jurisdiction, settle any doubts,
as does every competent oicial generally; or whether the courts are competent to
resolve such doubts. his question is not settled by the fact that one says the constitution establishes no other oice for this purpose and, consequently, the courts are
competent to do so.
Nonetheless, I would like to airm the competence of judicial review in regard to
the constitutionality of simple statutes, for with no inluence of the judiciary on the
Separation of Powers
231
2. Example: Schema of a balancing (through distribution) inside of L
Legislative
Reichstag
and
Reichsrat
Right of initiative, Art. 69
Passage of statute Art. 68, 2
Right of consent to imposition
of new expenditures in the budget, Art. 85, 4
Right of inquiry, Art. 74
Two-thirds majority decision in
regard to an inquiry, Art. 74
Right to institute a referendum
during constitutional amendments, Art. 74
President and the people
hold the balance and are the deciding factor.
legislative branch the principle of the separation of powers still remains intact. he
judiciary is generally not in the position “to intervene and to inluence” in the same
manner as other state activities. It is bound to the law, and even if it resolves doubts
about the validity of a law, it does not abandon the sphere of the purely normative. It
restricts, but it does not command. It is not a “power” like the other powers. hat is
certainly what Montesquieu means when he says that it is “en quelque façon nulle.”
Consequently, I would see no violation of the Rechtsstaat principle of the separation
of powers in the judicial review of the validity of statutes, because there is no “intervention” in the genuine sense (on this question, see above all p. 137 in the previously
cited book by F. Morstein Marx, Variationen über richterliche Zuständigkeit zur
Prüfung der Rechtmässigkeit des Gesetzes, Berlin 1927).
2. he schema of a balance of the distinguished or even separated powers leads
to opposing efects and inluences, in which it is a matter of weighing the mutually held authorities against one another and of bringing them into a balance. Every
strengthening on the one side is balanced on the other side, so that no part of the
balance receives the surplus. In the current Rechtsstaat, this system is mostly a matter of balancing the excess weight of the legislative bodies, therefore of the parliament. For in consequence of the rule of law, the legislative body itself has a natural
232
Separation of Powers
3. Example: Schema of a balancing through distribution inside the
executive
Executive (government)
President
and
Government
(Art. 52f.)
1. Art. 41 (politically important
competencies of the President,
such as international law representation abroad, appointment
of civil servants, high command
[of the armed forces], measures
during a state of exception, and
pardons.
2. Government authorizations in
regard to the legislature (dissolution, Art. 25, carrying out of a
referendum, Art. 73)
All other governmental authorizations and competencies
3. No dependence on the conidence of the legislature
All other governmental authorizations and competencies
Appointment and dismissal of
the Chancellor and ministers;
Art. 53
General requirement of the
countersignature of all the President’s oicial actions by the
Chancellor or minister, Art. 50
surplus in the preservation of the Rechtsstaat concept of law. he [197] dependence
of the government on the conidence of the parliament and the legal budgetary authority of the parliament work together, so that this surplus can easily become an
unrestricted and uncontrolled absolutism. In order to prevent that, one seeks a construction of the “genuine” parliamentarianism to bring the relationship of parliament and government into a counterpoise. Such counterbalanced constructions are
of special signiicance for the Weimar Constitution because its organization of the
executive rests on that type of idea. [198]
III. he schema portrayed under II should clarify only an abstract and
general outline. Every constitution of a real state must adapt itself to poSeparation of Powers
233
litical circumstances, just as the abstract outline of a building must adapt
to its foundation and to other natural and substantive facts. he purpose of
portraying the ideal schema lies in clarifying in a sketch the organizational
principle of the Rechtsstaat component of every constitution that is based
on bourgeois liberties. hrough a determination both of correspondences
with as well as deviations from the schema, the organizational order of a
Rechtsstaat constitution becomes more understandable.
It is, therefore, not an objection against such schemata if along with Kant one
quotes Swift’s witty expression: there are constitutional engineers who balance out
the organization of the state as carefully as an architect does a house on which only
a sparrow needs to be set in order to disturb the counterbalance and to cause the
building to collapse. [199]
he organizational principle of the separation of powers belongs essentially to a Rechtsstaat constitution, and it is right to question whether this
principle is given priority even over every constitutional change and revision because of its fundamental signiicance. From the Rechtsstaat standpoint, the question must be answered airmatively. Cf. E. Lambert, Le Gouvernement des juges, Paris 1921, p. 120f. But overlooked here is the fact that
a constitution of a politically existing people cannot consist only of Rechtsstaat principles. More precisely, these principles only form a moderating
component of the constitution, which supplements the political principles
(below § 16, p. 200). [200]
234
Separation of Powers
§ 16.
Bourgeois Rechtsstaat and Political Form
I. he constitution of the modern bourgeois Rechtsstaat is always a mixed
constitution.
1. Considered on its own, the Rechtsstaat component with both principles, basic rights (as a distributional principle) and the division of powers
(as organizational principle), contains no state form. It is, rather, only a
series of limitations and controls on the state, a system of guarantees of
bourgeois freedom that makes state power relative. he state itself, which
should be controlled, is presupposed in this system. he principles of bourgeois freedom could certainly modify and temper a state. Yet they cannot
found a political form on their own. “Freedom constitutes nothing,” as
Mazzini aptly stated, so in every constitution with the Rechtsstaat component, there is a second part where principles of political form are bound up
and mixed in with the Rechtsstaat one.
According to a traditional received division, three state forms are distinguished: monarchy, aristocracy, and democracy. his division can be
adopted provisionally here. he essential diference among the principles of
political form underlying it is considered below (II). he principles of bourgeois freedom, however, change the position and meaning of the elements
of political form and make mere legislative or governmental forms out of
state forms. he concept of government is once again rendered relative and
limited by the priority of the statute and the independence of the judiciary,
thereby becoming a system of divisions and controls. With the help of the
principles of bourgeois freedom, every state without regard to its state or
governmental form can be limited in the exercise of state power. An execution of these principles transforms every monarchy into a constitutionally
limited, so-called constitutional monarchy, in which the constitutional, not
monarchical, component is primary. he political principle of democracy
is changed in the same way and a constitutional democracy emerges out of
a pure democratic state. he principles of bourgeois freedom can also bind
themselves with any state form to the extent that only the Rechtsstaat [201]
limitations are recognized and the state is not “absolute.”
All state theorists of bourgeois liberalism stress that every state power must
be limited. If they grant validity to a sovereign authority, they attempt to set the
concept of a “sovereignty of the constitution” (of the Rechtsstaat principles), which
diverts attention from the concept of sovereignty proper, or, more abstractly, the
concept of a “sovereignty of justice and reason,” in the place of a concrete existing political sovereignty (above § 1, II, p. 7). It is stressed again and again that the
sovereignty of the people in particular has boundaries and that even in democracy
the principles of the basic rights and separation of powers may not be violated.
his is the case not only with Kant in his state theory speculations. It is above all
also the case with the leaders of bourgeois liberalism in its classical period, the
nineteenth century. According to Benjamin Constant, “he people do not have the
right to strike an innocent party . . . and also cannot delegate this right to anyone.
he people do not have the right to violate the free expression of opinion, the
freedom of conscience, or the procedure and the protective preliminaries of the
judiciary” (“Über die Souveränität des Volkes,” Oeuvres politiques, 1874 edition,
p. 13). Guizot terms the logically implemented democracy chaos and anarchy. In
a famous chapter of his book on democracy in America (vol. II, part II, chap. 6),
Tocqueville thoroughly considers the dangers of “egalitarian tyranny” under the
following heading: “Which type of despotism does the democratic people have to
fear.” “But I dispute,” John Stuart Mill argues, “the right of the people to exercise
such coercion (against the freedom of expression of opinion), whether it is by its
own (the people’s) decision, or whether it is by its government. In this matter, the
best government has no more rights than the worst.” Mill, On liberty (1849), chap.
II (on freedom of thought and discussion). he writing of Mill is especially characteristic because, inluenced by the events of the year 1848, it shows the opposition
of liberal and democratic principles and that the consciousness of this opposition in the meantime has become stronger due to the connection between socialism and democracy. Today, it is possible to recognize the diference between both
these principles. On this, see Carl Schmitt, Die geistesgeschichtliche Lage des heutigen Parlamentarismus, 1926, p. 21 [he Crisis of Parliamentary Democracy, trans.
Ellen Kennedy (Cambridge, Mass.: MIT Press, 1985)]. See also F. Tönnies, “Demokratie und Parlamentarismus,” in Schmollers Jahrbuch, vol. 51 (1927), p. 173f., who
elsewhere argues that “private property and division of powers are liberal and not
democratic principles.” Tönnies, Deutschen Soziologentag, 1926, p. 35. Also relevant in this regard is the protest of German law teachers, such as H. Triepel and
J. Goldschmidt, against the misuse of the legislative power and the absolutism of
majority decisions (above § 13, I 3, p. 142). he distinction is known today even in
the United States, whose constitution is indeed consciously built on the opposition
between the Rechtsstaat that divides power and democracy, but whose political
ideology previously only spoke so unproblematically and optimistically of “democracy” because it did not need to be conscious in a practical sense of the fundamental opposition. Cf. N. Murray Butler (Der Aufbau des amerikanischen Staates, German edition, Berlin 1927, p. 253), who argues that “the struggle between freedom
and equality has begun. he history of the coming centuries must be written in the
terms of this extensive conlict.”
his means the modern Rechtsstaat constitution can appear in the form
of a monarchy as well as that of a democracy. So long as the liberal principle of bourgeois freedom is genuinely recognized and enforced, only the
logically consistent implementation of the Rechtsstaat principle prevents
the similarly logically consistent execution of the principle of political form
such that there are always only moderated monarchies or democracies.
More speciically, [202] there are only those that are limited and altered by
the principles of the Rechtsstaat. he constitution of the bourgeois Rechtsstaat variety is irst of all a mixed constitution in the sense that the intrin236
Bourgeois Rechtsstaat and Political Form
sically independent and complete Rechtsstaat component bonds with elements of political form.
2. In a wider sense, the modern, bourgeois Rechtsstaat constitution is
also a mixed constitution because inside the second, political component,
diverse principles and elements of political form (democracy, monarchy,
and aristocracy) bond with one another and are mixed together. In this way,
this political part of contemporary constitutions corresponds to an ancient
tradition, according to which the ideal state order always rests on a connection between and mixture of diferent principles of political form.
he ideal of the mixed constitution derives from Greek state theories and was
inluenced most strongly by the writings of Aristotle and Polybius. It is noteworthy
that the division of state forms into democracy, aristocracy, and monarchy is connected with the distinction of good and bad constitutions because each of the three
named state forms can “develop negatively” and just the right mixture of these supplies the best constitution. On this, see Richard Schmidt, Verfassungsausbau und
Weltreichbildung, Leipzig 1926, p. 23f. In the “polity,” according to Aristotle, ruling
and being ruled are linked. hat is his actual state ideal, whose concrete execution
must always lead to a mixture of political form elements. Polybius sees in the Roman
constitution, which is a model for him, the mixture of forms in that the popular assembly (the populus) validates the democratic element, the Senate the aristocratic,
and the magistracy the monarchical one. In the political doctrine of the Middle
Ages, it is above all homas Aquinas, who considers the status mixtus the political
community’s best constitution. See Summa theologica I, II; 105, 1 (on this work, see
Marcel Demongeot, La héorie du Régime mixte chez Saint-homas d’Aquin, Aix
thesis 1927).
Since the sixteenth century, the state of the absolute prince suppressed this ideal
of a mixed constitution and achieved the ideal of the pure constitution, so that, considered historically, the theory of the pure (unmixed) constitution appeared as the
theory of absolutism. Machiavelli, who otherwise stands entirely in the classical tradition, says, however, that an enduring state system must be either a pure monarchy
or a pure republic. He argues that state forms that shift back and forth between both
[203] are defective (Sopra il reformer lo stato di Firenze). Bodin is also an opponent
of the mixed constitution, but Hobbes and Pufendorf after him especially are (de
iure naturae et Gentium, VII, 5; § 12, 13, de republica irregulari, § 5 in the Diss. Academicae 1675, p. 93 f.).
In contrast to this absolutist state theory, the theory of the modern Rechtsstaat
begins with the mixed state form. he opponents of the absolute prince, the socalled Monarchomachs, advocated it. Many important political theses of the Monarchomachs are traceable to the formulations of Calvin, who declared the aristocracy or a constitution tempered by the aristocracy and elements of polity as the best
one (vel aristocratium, vel temperatum ex ipsa et politia statum) in the Institutio
religionis christianae Lib. IV, c. 20, speciically in an addition to the 1543 edition, § 7
(Corpus Reformatorum 29, p. 1105). On Leibniz, cf. Gierke, Althusius, p. 179. On the
theory of Status mixtus disseminated in the German Reich, see ibid. p. 181f.
For the further development of the modern Rechtsstaat theory, that which arose
in England is by far the most important. Bolingbroke linked the theory of the balancing of powers and of the “equilibrium” (above p. 183) with the theories of the
Bourgeois Rechtsstaat and Political Form
237
mixed state form (mixed government, in contrast to simple government), and he saw
the ideal connection already realized in the English constitution. he English king
represents a monarchical element, the upper house an aristocratic, and the lower
house a democratic one. For him, a pure, unmixed form would be arbitrary, “without control,” and a monarch governing alone would be despotism, just as democracy governing alone would be anarchy (Mixed Works, III, p. 206). he theory of
the balance of powers and the theory of the mixed state form pass over into one
another here. In his clever way, Montesquieu adopts and modiies these currents of
thought in a theory of the decline of the state form. He considers ideal a mixture of
aristocracy and monarchy and a well-tempered government (Esprit des lois, bks. XI
and VIII). Even Burke, who otherwise is an opponent of Bolingbroke, praised the
English constitution as mixed and tempered government, as a monarchy limited by
upper house and lower house (Works, V, p. 229). he authors of the Federalist Papers
(1788), whose arguments are deinitive for the federal constitution of the United
States, also demand a mixture and tempering that directs itself especially against
pure democracy. Finally, the author of most of the draft constitutions of the French
Revolution, Sieyès, also had such ideas. In this regard, cf. his formulation from the
year 1801 (in E. His, Geschichte des neueren schweizerischen Staatsrechts, I, 1920,
p. 353, n. 151), where he argues that the foundation of a good constitution must be
democratic, the middle part aristocratic, and the capstone monarchical. As an example of the constitutional theory thinking of the German liberals, take H. W. A. v.
Gagern, who argues that “it lies in the nature of powers that they be exercised, and
in the nature [204] of authority that it attempts to extend itself. Human ingenuity
conceived the system of the representative constitution and history elaborated it in
order to limit these powers and forms of authority in the state—the monarchical,
aristocratic, and the democratic elements—such that they must tolerate one another while existing side by side” (Über die Verlängerung der Finanzperioden und
Gesetzgebungslandtage, 1827). his statement contains not only the profession of
von Gagern’s political commitment, but also the political essence of the bourgeois
Rechtsstaat in general. Even F. C. Dahlmann states in his Politics (§ 99, p. 83, 3rd ed.,
1847) that “in order to last, the governmental form of a great state must be built from
diferent components, not those of the same type.” He inds in the English constitution such a mixture and division.
3. he bourgeois Rechtsstaat constitution knows actually only governmental and legislative forms, whereby “government” as executive in the
sense of the separation of powers principle is distinguished from the legislative. By itself, the Rechtsstaat component means neither a constitution
nor an independent state form. Consequently, the Rechtsstaat can comprise
political unity neither as such nor as an entirety. he constitution-making
power in particular remains always external to this Rechtsstaat component,
and the problem of the constitution-making power cannot be resolved
either theoretically or practically with the principles and concepts of mere
Rechtsstaat legality. As a result, it is mostly either ignored or obscured in a
mixture of liberal and democratic ideas and in abstractions, such as “sovereignty of justice” or “sovereignty of the constitution.” By contrast, one must
be reminded that the question regarding the constitution-making power is
238
Bourgeois Rechtsstaat and Political Form
unavoidable and that the response to this question also answers the question about the state form, while the mixture of political forms in the bourgeois Rechtsstaat results from the fact that diferent “powers” can only be
distinguished when they are organized according to diferent principles of
political form. he legislative branch, for example, can be organized democratically, while the executive branch can be set up as a monarchy, etc.
II. he two principles of political form (identity and representation).
he diference between the state forms rests on the fact that there are
two opposing formative political principles. Every political unity receives
its concrete form from the realization of these principles. [205]
1. State is a certain status of a people, speciically, the status of political
unity. State form is this unity’s particular type of formation. he people are
the subject of every conceptual deinition of the state. State is a condition,
the particular circumstance of a people. But the people can achieve and
hold the condition of political unity in two diferent ways. It can already be
factually and directly capable of political action by virtue of a strong and
conscious similarity, as a result of irm natural boundaries, or due to some
other reason. In this case, a political unity is a genuinely present entity in
its unmediated self-identity. his principle of the self-identity of the then
present people as political unity rests on the fact that there is no state without people and that a people, therefore, must always actually be existing
as an entity present at hand. he opposing principle proceeds from the
idea that the political unity of the people as such can never be present in
actual identity and, consequently, must always be represented by men personally. All distinctions of genuine state forms, whichever type they may
be, monarchy, aristocracy, and democracy, monarchy and republic, monarchy and democracy, etc., may be traced back to this decisive opposition of
identity and representation. Even the diference, treated above (§ 8, p. 82),
between both subjects of the constitution-making power under consideration, people or monarchy, centers around both these opposing principles.
Where the people as the subject of the constitution-making power appear, the political form of the state deines itself by the idea of an identity.
he nation is there. It need not and cannot be represented. his is an idea
that gives Rousseau’s oft-repeated arguments (Contrat social, III, 15) their
democratic irrefutability. he absolute monarchy is, in fact, only absolute
representation and rests on the idea that the political unity is irst produced
by representation through performance. he statement “L’Etat c’est moi”
means I alone represent the political unity of the nation.
In the reality of political life, a state can no more forgo all structural
elements of the principle of identity than one can forgo all structural elements of representation. Even where the attempt is made [206] to realize
Bourgeois Rechtsstaat and Political Form
239
unconditionally an absolute identity, elements and methods of representation remain unavoidable, as on the contrary no representation without
images of identity is possible. Both these possibilities, identity and representation, do not exclude one another. hey are, rather, only two opposing
orientation points for the concrete formation of the political unity. In every
state, one or the other is stronger, yet both are part of the political existence
of a people.
2. First of all, there is no state without representation. In a fully implemented direct democracy where the “entire people,” all active state citizens,
are actually assembled in one place, perhaps the impression arises that the
people act in its unmediated presence and identity as the people and that
one can no longer speak of a representation in regard to the people. “So,
the united people not merely represents the sovereign; it itself is this sovereign” (Kant, Rechtslehre, II, § 52). In fact, in the extreme case, only all adult
members of the people act and then only in the moment when they are
assembled as the community or as the army. But even all active state citizens, taken as a whole, are not the political unity of the people. hey merely
represent the political unity, which transcends an assembly convened at a
particular time and place. he individual state citizen, however, is present
not in his “natural” condition as individual person (precisely what Rousseau
always emphasized). He is present as state citizen, as “citoyen.” Moreover,
in a modern democracy without a popular assembly that neither is elected
in secret ballots nor that votes in secret, it is immediately evident that the
enfranchised individual ideally votes not for himself as private person, that
the individual electoral precinct represents not a special district inside of
the state, and that in public law terms (in a system of proportional representation with party lists) the individual party list is not there on its own
account, but rather only as the means to bring about a representation of
political unity that is alone essential. Every deputy is considered a “delegate
of the entire people,” as a representative. hat remains an essential element
of today’s state, although it long ago became untrue in practical terms. It is
even expressed in Art. 21 of the Weimar Constitution, according to which
“deputies are [207] delegates of the entire people.” By the same logic, however, the same must hold for every individual voter. Hence, in every detail,
the system of the democratic election rests on the idea of a representation.
If state citizens entitled to vote do not elect a deputy, but the matter itself is
instead decided through a referendum, a so-called genuine plebiscite, and
the question presented is answered “yes” or “no,” the principle of identity
is realized to the fullest. But, even then, elements of representation remain
efective because it must also be believed in this regard that the individual
state citizen entitled to vote appears as a “citoyen,” not as a private man and
240
Bourgeois Rechtsstaat and Political Form
private interest. He must be thought of as “independent,” as “not bound to
instructions and commissions,” and as a “representative of the whole,” not
of his private interests. At no time or place is there thorough, absolute selfidentity of the then present people as political unity. Every attempt to realize a pure or direct democracy must respect this boundary of democratic
identity. Otherwise, direct democracy would mean nothing other than the
dissolution of the political unity.
here is, therefore, no state without representation because there is no state
without state form, and the presentation of the political unity is an intrinsic part
of the form. In every state, there must be persons who can say, L’Etat c’est nous.
Presentation, however, need not be production of the political unity. It is possible
that the political unity is irst brought about through the presentation itself. hat
is the case in the degree to which the state form approaches absolute representation. But the procedure and method of the production and initiation of the political
unity alone are still not a state form. R. Smend (in the essay discussed above, § 1,
I, 3, p. 7) suggested distinguishing between “integration” and “representation” as
state forms. In parliamentarianism, he sees a “state form in itself,” because from
the very beginning the state continuously integrates itself through public opinion,
elections, parliamentary debates, and votes. But every political unity must somehow be integrated because such unity is not by nature present. Instead, it rests on a
human decision. “Integration,” therefore, is not a speciic principle of form. According to circumstances and the peculiarity of the people, integration may occur just
as well through representation as through methods and procedures springing from
the idea of identity. Smend juxtaposes integration as “dynamic” to the traditional
forms as “static.” he fundamental meaning of the concept of integration should not
be misconstrued. Integration is not a state form and stands above all not in opposition to representation. One may even say that in its efect genuine representation
is an essential factor of the process of integration. Nevertheless, that would be a
functional consideration, not a formal one, and it is to be shown below (III) that to
represent is not mere functioning. On parliamentarianism as a special system of
government (not a state form), see below § 24, p. 305. Parliamentarianism is not the
form of integration. [208] Considered historically, it is only a certain method of integration, which is rendered concrete in a dual manner. It integrates only the (propertied and educated) liberal bourgeoisie and only in the monarchical state existing in
the nineteenth century.
3. In the same way, there is no state without structural elements of the
principle of identity. he principle of form of representation can never be
instituted purely and absolutely by ignoring the people who are always
somehow existing and present. hat is impossible because there can be no
representation without the public and no public without the people. he
concept of representation, however, must be seen in its public law and political peculiarity and be freed from any encumbrance from other concepts
such as assignment, interest advocacy, business leadership, commission,
trusteeship, etc., because otherwise ideas of a private law and economictechnical variety undermine its distinctiveness. In the nineteenth-century
Bourgeois Rechtsstaat and Political Form
241
literature, the lack of clarity is so great that often only with immense efort
is it possible to recognize the public law sense of the word representation.
Emil Gerber’s dissertation, Bonn, 1925, makes an attempt to clarify these concepts for the period of pre-March liberalism, a period that is especially important
and instructive because of the struggle between “representation” and “estate advocacy.” hrough personal communication, it is known to me that Dr. G. Leibholz
plans an extensive exposition of the concept of representation. I do not want to
anticipate his work, so I am content to list a few distinctions in the form of theses,
which are indispensable for any state and constitutional theory.
III. he components of the concept of representation.
1. Representation can occur only in the public sphere. here is no representation that occurs in secret and between two people, and no representation that would be a “private matter.” In this regard, all concepts and ideas
are excluded that are essentially part of the spheres of the private, of private
law, and of the merely economic. his includes concepts such as execution,
trusteeship, and advocacy of private interests, etc. A parliament has representative character only so long as one believes that its actual activity lies
in the public sphere. Secret sessions, secret agreements, and deliberations
of some committee may be very meaningful and important, but they never
have a representative character. As soon as the conviction establishes itself
that what occurs publicly in the context of the parliamentary activity has
become only an empty formality and that the true decisions fall outside of
this public sphere [209], parliament can perhaps still exercise some useful
functions, but it is just not any longer the representative of the political
unity of the people.
In F. C. Dahlmann, Politik, chap. VI., § 139 (p. 117 of the 3rd ed. of 1847), the concept is still genuine. Set against this alignment (of the estates), the representative
constitution takes the rights of the public and collective as its point of departure.
his constitution considers the prince the executive body of a state order, which is
undoubtedly superior to him, and it alone is still by far stronger than and towers
above the populace and has nothing to do with popular sovereignty. For a populace
can certainly have the understanding that government is according to the will of
the people without thereby assuming the risk of intending to undertake governing
itself. Bluntschli is one of the few nineteenth-century teachers of public law who is
still aware of the distinctiveness of the concept of representation as it is expressed in
writings on public afairs. In his Allgemeinen Staatsrecht, I, p. 488, he elaborates by
stating that “representation in public law is entirely diferent from the equivalent in
private law.” “Consequently,” he continues, “the fundamental principles valid in the
latter may not be applied to the former.” By contrast, the concept in Robert Mohl already passes over entirely into the private in the bourgeois sense, for example, and is
brought under the perspective of business management. “Representation or (!) advocacy,” he writes in Staatsrecht, Völkerrecht, Politik, Monographien, pp. 8/9, is the
institution whereby the subjects, either in their entirety or merely a portion of them,
are authorized to inluence state business through a small number of persons drawn
from the midst of the participants and selected in their name and obligated toward
them.” In part, the confusion that lies in the intertwining of private law and busi-
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ness ideas explains and excuses itself in reference to the fact that the Anglo-Saxon
manner of expression does not care for clear and sharp distinctions. When one considers the extent to which the reference to the English model replaced state theory
thinking, one will not expect that the theorists of the nineteenth century themselves
distinguish where the English have no interest in the distinction. Moreover, it is
still a matter of state theory concepts deining themselves in political struggle only
according to some tactically important detail, which is made prominent by the circumstances of the struggle or by an especially pressing political interest. Hence, it
came about that ultimately nothing appears to remain for the consciousness of state
theory from a concept as comprehensive and systematic as representation other
than that the representative is not bound to the instructions and directives of his
electors. One has not exerted oneself further to ind a systematic explanation of this
“independence” and its speciic connection with the concept of representation.
From the sociological literature, only one, certainly very important, work is
known to me that is meaningful for the concept of representation. hat is the essay
by Werner Wittich in the commemorative volume for Max Weber, vol. II, p. 278f.,
entitled “Der soziale Gehalt von Goethes Roman ‘Wilhelm Meisters Lehrjahre.’ ”
he word “representation” does not occur here, but becomes evident from the beginning in the exceedingly apt remarks on “the public sphere,” “public person,” and
“appearance.” he crisis of the concept is that the nobility loses its representative
position without the bourgeoisie being in the position to create an instance of representation.
2. Representation is not a normative event, a process, and a procedure.
It is, rather, something existential. To represent means to make an invisible
being visible and present through a publicly present one. he dialectic of
the concept is that the invisible is presupposed as absent [210] and nevertheless is simultaneously made present. hat is not possible with just any
type of being. Indeed, it presupposes a special type being. Something dead,
something inferior or valueless, something lowly cannot be represented. It
lacks the enhanced type of being that is capable of an existence, of rising
into the public being. Words like size, height, majesty, fame, dignity, and
honor seek to express this peculiarity of enhanced being that is capable of
representation. What serves only private afairs and only private interests
can certainly be advocated. It can ind its agents, attorneys, and exponents.
However, it is not represented in a speciic sense. It is either really present
or executed by an instructed delegate, business manager, or deputy. In representation, by contrast, a higher type of being comes into concrete appearance. he idea of representation rests on a people existing as a political
unity, as having a type of being that is higher, further enhanced, and more
intense in comparison to the natural existence of some human group living
together. If the sense for this peculiarity of political existence erodes and
people give priority to other types of their existence, the understanding of
a concept like representation is also displaced.
hat X steps in for the absent Y or for a few thousand such Ys is still not an instance of representation. An especially simple historical example of representation
Bourgeois Rechtsstaat and Political Form
243
occurs when a king is represented before another king through an ambassador (that
is, a personal representative, not through an agent who conducts business for him).
In the eighteenth century, one such “representation in the eminent sense” distinguished itself clearly from other processes of interest advocacy.
Vattel’s widely distributed, inluential textbook of international law states (Droit
des Gens, 1758 edition, I, p. 42) that “the representative character of the sovereign
authority rests on the fact that he represents his nation. he monarch thereby unites
in his person the entire majesty, which is due the nation as a united body.” “Telle
est l’origine du Caractère représentatif que l’on attribue au Souverain. Il représente
sa Nation dans toutes les afaires qu’il peut avoir comme Souverain. Ce n’est point
avilir la dignité du plus grand Monarque que de lui attribuer ce caractère représentatif; au contraire, rien ne le relève avec plus d’éclat: Par-là le Monarque réunit en sa
Personne toute la Majesté qui appartient zu Corps entier de la Nation.” Elsewhere
(II, p. 304/5), he speaks of the representative character of the envoys, the “Ministres
publiques,” distinguishes them from the chargés d’afaires, the commission agents,
and ofers the following deinition: “What one calls the representative character par
excellence is the ability of the minister to represent his master, so far as it is a matter
of his person and his dignity (dignité).” hese conceptual deinitions underlie the
order of ranks of diplomatic agents of 19 March 1815 (Wiener Kongressakte, Anlage
d. Art. 2). Les ambassadeurs, légats ou nonces ont seuls le caractère représentatif (Strupp, Documents, I, p. 196). hey are of special signiicance in constitutional
theory terms because they express a [211] deining idea of the eighteenth century
that passed over directly into the constitutional law of the French Revolution. he
principle of the irst revolutionary constitution of 1791 is to be understood in this
historical context. he French constitution is representative; representatives are the
legislative body and the king (Title III, Art. 2, w), while it is said of the “administrateurs” (Tit. III, chap. IV, sect. II art. 2) that they have no “caractère de représentation.”
he dispute that surrounded the representative constitution in Germany
in the nineteenth century is only understandable in reference to this meaning of representation. he statesmen of the monarchical restoration recognized the political sense of the concept and attempted to substitute estate
interest advocates for a “representation of the people.” In this way, the political value had been taken from the demands of the liberal bourgeoisie. In
Art. 13 of the Vienna Federal Act, therefore, the expression “representative
constitution” (Constitution représentative) is intentionally replaced by the
expression “estate constitution.” he weighty controversy over this diference would be inconceivable had it not been a matter of the actual political
object of dispute. For if a body that is representative of the entire people
stands opposite the king, the monarchical principle is shaken, for this principle rests on the king alone thoroughly representing the political unity
of the people. In a transitional and intermediary phase, one can attempt
to place two representatives of the “nation,” the politically uniied people,
alongside one another, the king and the parliament. hat is the idea of the
constitutional monarchy; herein resides its “dualism.” he French constitution of 1791 rests on this principle and expresses it especially clearly. he
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Bourgeois Rechtsstaat and Political Form
constitutions of the constitutional monarchy in Germany avoid those types
of precise declarations, but they contain the same dualism. It is the democratic logic of such a state construction that the parliament as the true or
(as Rotteck, Vernunftrecht, II, p. 237 says) “natural” representative of the
political unity of the people emerges and forces aside the other representatives. heoretically and ideally that signiies the actual weaknesses of the
constitutional monarchy. Despite all the confusion that reveals itself in the
use of the term “representation,” the central political meaning of the term
always lets itself be recognized.
Representation is part of the political sphere. Hence, it is essentially something
existential. One cannot grasp it by subsuming it under general [212] norms. he
nineteenth-century monarchy sought to adhere, theoretically and ideally, to the
principle of legitimacy, thereby retaining an essentially normative foundation while
surrendering its representative character. Legitimacy and representation are completely diferent concepts. Legitimacy alone establishes neither authority nor potestas [power] nor representation. In the period of its most intensive political existence, the monarchy called itself absolute. hat means legibus solutus, or simply the
renunciation of legitimacy. he nineteenth century’s attempt to restore monarchy
on the foundation of legitimacy was only an attempt to stabilize a status quo juristically. Because the political capacity for vibrant forms of representation is lacking,
one sought to secure one’s position normatively by applying essentially private law
concepts (possession, property, family, right to inheritance) to political life. What
was still historically vibrant in the monarchy’s principle of form did not lie in legitimacy. he example of the politically strongest monarchy, the Prussian kingdom, is
clear enough in this regard. A monarchy that is nothing other than “legitimate” is
already politically and historically dead.
3. he political unity as a whole is represented. here is something in this
representation that exceeds every commission and every function. Consequently, not just any “organ” is representative. Only he who rules takes part
in representation. he government distinguishes itself from administration
and business management by presenting and rendering concrete the spiritual principle of political existence. According to Lorenz von Stein (Verwaltungslehre, p. 92), the government establishes “the principles.” It acts “in
the name of the ideas of the state.” hrough this type of spiritual existence,
it distinguishes itself both from an employee on special assignment, on the
one hand, as well as from a violent oppressor, on the other. hat the government of an established community is something other than the power
of a pirate cannot be understood from the perspective of the ideas of justice, social usefulness, and other normative elements, for all these normative concepts can apply even to thieves. he diference lies in the fact that
every genuine government represents the political unity of a people, not the
people in its natural presence.
he struggle for representation is always a struggle for political power. In Germany’s constitutional monarchy, the parliament was thus the “people’s advocate,”
but not the representative of the political unity of the people. K. Rieker (Die recht-
Bourgeois Rechtsstaat and Political Form
245
liche Natur der modernen Volksvertretung, Leipzig 1893, p. 53) deines the people’s
advocate in the monarchical states of Germany as “a body constituted from the subjects in a special way, which, by virtue of a legal iction, is the entire people, the
totality of the subjects.” What is misconstrued here is that the entire people are the
political unity. In the monarchy, by contrast, the totality of the subjects are in fact
not supposed to be the political unity.
4. he representative is independent, neither functionary nor agent nor
commissioner. With one clause that is in theory generally valid, the French
constitution of 1791 contrasts the administration with the representative,
stating [213] that “the persons entrusted with the government (administration) of the state have no representative character. hey are trustees
(agents)” (Title III, chap. IV, sect. 2, art. 2). According to Art. 130, 1, of the
Weimar Constitution, the civil servants are “servants of the collective.”
hey are also not representatives.
In the “Contrat social,” Rousseau had already distinguished a representative
from agents and commissioners, who only deal with a business task (emploi) and are
mere civil servants (oicers) (bk. I, cap. 1 and 18). he National Assembly of 1789 was
still clearly aware of the diference. he diiculty lies only in that one must connect
the principle of representation with principles of a constitution that distinguishes
among powers. Political unity cannot be divided. Only the nation is always represented. In other words, only the entire people are represented. Consequently, the
three “powers” do not permit themselves to be represented inside the same political
unity. On the other hand, the bearer of a “power,” of a “pouvoir,” is something diferent and more signiicant than a functionary or a civil servant, and one says of him
that he represents the “pouvoir.” It helped that one spoke of a representation anywhere an individual or a constituted body wills something for the body as a whole
(so Barnave, Arch. Parl. XXIX, p. 331) and stated that the representative has not only
a function but also happens to be a “pouvoir.” Roederer and Robespierre (pp. 324/5)
distinguished the “pouvoirs représentatifs” from the “pouvoirs commis”; the “pouvoir représentatif ” is “égal au pouvoir du peuple” and independent. K. Loewenstein,
Volk und Parlament nach der Staatstheorie der französischen Nationalversammlung
von 1789, Munich 1922, p. 243, has also noted the opposition of representation and
division of powers when he states that “the representative principle is not a concept
that is immanent to the division of powers as such.” Representation is just a principle of political form; the separation of powers, by contrast, is a method of using
opposed principles of political form in the interest of the bourgeois Rechtsstaat.
he diiculty residing in the connection of representation and division of powers is
only resolvable by distinguishing both components of a modern constitution and by
separating the principle of the division of powers from the political component of
the constitution. he actual principles of form signify as such essential unity, which
is the opposite of division and distinction. he contradictory connection of both
these principles becomes evident (below § 24, p. 303f.) in the attempt to institute a
parliamentary government while applying the methods of division and balancing of
powers to it. If the representative is handled only as a delegate, who acts as trustee
of the interests of voters for practical reasons (because it is impossible that all voters
could always and at the same time come together), then representation is no longer
present. I would also not (as does J. Barthélemy, Le rôle du pouvoir exécutif, 1906,
p. 41) speak of half-representation (sémi-représentation). In the interest of scholarly
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clarity, however, I would prefer to attempt to lend the word a precise meaning again
and limit it to the presentation of the political unity as such. A committee does not
represent. It is, rather, a dependent exponent of a larger complex, which forms the
committee for practical-technical reasons. he parliament as representative of the
people is not a committee of the people, nor is it one of the electorate.
he word organ must be avoided here. It owes its popularity in part to the justiied opposition to mechanistic and individualistic-private ideas, in part, however,
also to a lack of clarity conveying multiple meanings, a lack of clarity in which diicult distinctions like representation, advocacy, mission, etc., dissolve into a general
obscurity. For the critique of the use [214] of this term by G. Jellinek, cf. Carl Schmitt,
Die Diktatur, p. 141. See additionally, H. Heller, Die Souveränität, Berlin 1927, p. 60,
Duguit, L’Etat, I, p. 8, 238f., and Barthélemy, Le rôle du pouvoir exécutif, p. 25f. Unfortunately, Gierke’s legal-historical investigations are also not always clear insofar
as they involve the public law and in particular this concept of representation. In
the Althusius’s expositions, p. 214f., the concepts “representation,” “vicem gerere,”
“mandatum,” “commissio,” “empowerment,” “advocacy” are mixed up with one another. hat an intermingling also occurs in the historical literature treated there is
no reason to extend it. Instead, it makes a disentanglement all the more necessary.
he statement of Cusanus, which Gierke, p. 216 n. 15, cites as the irst example for
the use of the word representation (et dum simul conveniunt in unu compendio
representativo totum imperium collectum est), demonstrates something essential.
Speciically, that the representative is not involved in some form of advocacy, but
rather in the presentation of a unity of the whole. he absolutistic theory is not at
all so far removed from the idea of representation as Gierke assumes entirely in the
sense of the liberal nineteenth century. Instead, it only reserved for the princes the
task of representing political unity. Moreover, this absolutism grasped the idea of
representation very clearly and forcefully and thereby irst made possible the adaptations of it by the French Revolution and of the nineteenth century (by the monarch to the elected popular assembly).
5. he absolute prince is also the sole representative of the political unity
of the people. He alone represents the state. As Hobbes puts it, the state
has “its unity in the person of a sovereign”; it is “united in the person of
one sovereign.” Representation irst establishes this unity. Nonetheless, it is
always only the unity of a people in the political condition that is produced.
he personal quality of the state lies in representation, not in the concept of
the state.
he value of representation is that its public and personal qualities give political
life its character. Notorious matters, such as “secret diplomacy” and “personal rule,”
have brought this system into disrepute. However, one should at least not overlook
one thing: that the secret diplomacy of the holders of public power is a harmless
game in comparison to the public diplomacy that secret holders of power carry out
through their agents.
6. In summary, it may be said that the state as political unity rests on the
connection of two opposing formative principles. he irst is the principle
of identity (speciically, the self-identity of then existing people as a political
unity, if, by virtue of its own political consciousness and national will, it has
the capacity to distinguish friend and enemy), and the other is the principle
Bourgeois Rechtsstaat and Political Form
247
of representation, through which the government represents the political
unity. Implementation of this principle of identity signiies the tendency
toward the minimum of government and personal leadership. As this principle is realized to an ever greater degree, the resolution of political afairs
occurs ever more “of itself ” thanks to a maximum of naturally given or historically achieved homogeneity. hat is the ideal condition of a democracy,
as Rousseau presupposes it in the “Contrat social.” One [215] speaks there
of direct or pure democracy. What is noteworthy in this expression is the
fact that there is actually only direct democracy and the “mediative quality”
arises only through the integration of formal elements of representation.
Where everything agrees, the decision must result by itself without discussion and without essential oppositions of interests, because everyone
wants the same thing. But this condition must be viewed as only an ideal
mental construct, not historical and political reality. he danger of a radical
implementation of the principle of identity lies in the fact that the essential
presupposition, substantial similarity of the people, is misperceived. here
is not really the maximum degree of identity. Certainly, however, the minimum degree of government is present. he consequence is that a people
regresses from the condition of political existence into one that is subpolitical, thereby leading a merely cultural, economic, or vegetative form
of existence and serving a foreign, politically active people. By contrast, a
maximum degree of representation would mean a maximum amount of
government. So long as it is genuinely at hand, it could get by with a minimum of homogeneity of the people and could form a political unity out of
national, confessional, or diverse class-based human groups. he danger of
this condition is that the subject of the political unity, the people, is ignored
and the state, which is never anything other than a people in the condition
of political unity, loses its substance. hat would then be a state without
people, a res populi without a populus.
All divisions of state forms derive from this diference between both
principles of form. he traditional division of monarchy, aristocracy, and
democracy contains a genuine core and involves something essential because it is traceable to the fact that among these three state forms one of
each principle of form is predominant in a diferent manner. he mere factual number of rulers or governors, however, is not an appropriate principle of division, and it requires no special insight to become critical when
it is said that in monarchy one rules, in aristocracy several, in democracy
many or all. he division is correct only insofar as the words “to master”
or “to govern” contain the element of representation, or the presentation
of political unity. In democracy, it is many or all who represent, insofar as
every voter, every [216] citizen with the right to vote, as explained above
(1.), can be an independent advocate of the whole. Yet in democracy this
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Bourgeois Rechtsstaat and Political Form
participation of all state citizens in the state has the sense of producing the
self-identity of the then present people as a political unity, not the sense of
the act of representing. Correctly understood and ignoring the extremes
of the numerical division, Aristotle’s state theory retains its classic meaning. he most important thing is that Aristotle in the theory of the “polity”
recognized the true state as a linkage of ruling and being ruled, of ἂρχειν
and ἂρχεσθαι. he simultaneity of ruling and being ruled, of governing and
being governed, signiies a linkage of both principles, representation and
identity, without which a state is impossible.
IV. he modern constitution is composed of a linkage and mixture of
bourgeois Rechtsstaat principles and those of political form. Rechtsstaat
principles limit and temper the consequences and efects of political principles in a distinctive way. he states of this modern constitution are constitutionally limited (constitutional) monarchies or constitutionally limited
(constitutional) democracies. As will be shown immediately below, however, even elements of aristocratic form are used in the modern “constitution state.”
1. One cannot say that the bourgeoisie, as it struggles for its Rechtsstaat
in Europe, would always have privileged one of the two principles of political form, identity or representation. he bourgeoisie struggles in the same
way against every type of state absolutism, whether it is an absolute democracy or an absolute monarchy. Consequently, it resists extreme identity as
well as extreme representation. Its goal was the “parliamentary system” insofar as it aspired toward political institutions of the genuine Rechtsstaat
variety, demands that extend beyond that which merely moderate and
“temper” the state. his system is the actual political demand of the liberal
bourgeoisie. As the subsequent discussion of the diferent form principles
will specify in detail, this system rests on a distinctive linkage, balancing,
and relativizing of monarchical, aristocratic, and democratic elements of
form and structure. It is signiicant, nevertheless, both historically and in
terms of state theory, that precisely this system assumed the name “representative system” or “representative constitution,” [217] so that in almost
all European countries during the nineteenth century, the liberal bourgeois
Rechtsstaat with a parliamentary government is designated as a state of
the “representative system.” Kant, who is also already a typical advocate of
bourgeois Rechtsstaat thinking in this regard, stated that “every true Republic, however, is and can be nothing other than a representative system of
the people, one united by all state citizens and established in order to act as
trustee for their rights in their name by means of their delegates (deputies)”
(Rechtslehre § 52, Vorländer edition, p. 170). he question is whether this
bourgeois, representative constitution signiies a state form.
hese ideas about the parliament or popular assembly still presuppose
Bourgeois Rechtsstaat and Political Form
249
a genuine representation of the whole, in other words, of the politically
united people, or the nation. he parliament is not yet thought of as a committee of interest advocates. his representative character of the popular
assembly is adhered to with great determination in opposition to the king,
so long as he comes into consideration as the representative of the political
unity. In traditional liberal terms, the deputy is a man, distinguished by
insight and education, who is concerned only with the political whole as
such. Constitutional theory must certainly take account of this ideal type
of the deputy, for it confers on the parliament the meaning of a representative elite, of an aristocratic assembly with representative character. And
historically it is not only the English Parliament to which Gneist (Englische
Verfassungsgeschichte, p. 709) and Hasbach (Die parlamentarische Verfassungsgeschichte, 1919, p. 261), for example, attributed this representative
quality. It is also correct in terms of the idea when parliament is understood as an aristocratic or oligarchic assembly. Only in relative terms can
it appear as something democratic, in particular through the opposition
to the absolute monarchy. With the power of the monarchy and in consequence of rising democratization, this aristocratic and representative character erodes. he deputy became a dependent agent of voters and interest
organizations. he idea of representation was displaced by the principle of
direct identity, which immediately made the great mass of people appear as
something entirely self-evident. But in terms of understanding parliamentarianism and the bourgeois “representative constitution,” it is necessary to
remind oneself that their fundamental character is aristocratic. [218]
2. I agree with R. Smend’s designation of parliamentarianism as a special
state form (above p. 207) only insofar as the parliamentary system contains
a distinctive relativity, linkage, and mixture of opposing political principles
and structural elements that correspond to the special interests of the bourgeois Rechtsstaat. If one applies the distinction of both principles of political
form, identity and representation, to the parliamentary system, it becomes
evident that a special type of representation is present. he rule of parliament is an instance of aristocracy (or, in the degenerate form, oligarchy).
Aristocracy is a mixed state form in a certain sense. Under the theory of the
mixed state form, it is always treated as a form especially worthy of recommendation because it stands in the middle between monarchy and democracy and, consequently, already intrinsically contains a mixture. Even in the
previously cited expression of Calvin, for example, aristocracy is preferred
to other political formations. he state form of the aristocracy distinguishes
itself from democracy in that, in contrast to democracy’s unmediated identity, aristocracy rests on a representation. On the other hand, it avoids a
representation that is so absolute and thoroughgoing that it signiies representation by an individual person, the monarchy. Even personalism, toward
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Bourgeois Rechtsstaat and Political Form
which a representation strives, is deprived of its innermost logic if a single
person no longer represents. So the aristocracy can appear as something
moderate and intermediate between two extremes. In this regard, Montesquieu also touched on something essential when he designated moderation
(modération) as the “principle of aristocracy.” Representation contains the
genuine opposition to the democratic principle of identity. he so-called
“representative democracy” is the typically mixed and compromise form. It
is so, moreover, even down to the last detail of its organizational execution.
It is very imprecise to treat the representative democracy as a subcategory of
democracy (as does Richard homa in the Erinnerungsgabe für Max Weber,
1923, II, p. 39f.). For the representative quality contains the undemocratic
element in this “democracy.” Insofar as the parliament is a representation
of political unity, it stands in opposition to democracy. But considered historically, the liberal demand for such a representation in concrete political reality directed itself initially against the [219] absolute monarch, who
emerged as sole representative of political unity. A second representative,
the parliament, placed itself in opposition to this one. As “representative of
the people” (although in fact there can only be one representative of the political unity of the people, just as there can only be one representative of the
collective), constituted out of elections of the people, this parliament spoke
and acted in opposition to the king only in the name of the people. Hence,
it represented the political unity not by virtue of its own existence and not
in complete independence, even if in regard to the people one reairmed
that the parliament is an “independent” representative. hat was obviously
a malleable intermediary position and only a transition. he more the opposing player, the monarchical representation, declined, the more the representation of parliament was also displaced and the representative body
transformed itself into a committee of the mass of voters. After the parliament had ceased to represent in opposition to a monarch, it was presented
the political task of representing the political unity all the more decisively
in opposition to the people, that is, its own voters, and to keep itself independent of the people. herein lies a great diiculty, for the election can,
indeed, create a genuine representation and is a method of the aristocratic
principle when it has the sense of determining the best of the select few. If
the direction of selection proceeds from below to above, the elected are
the exalted. On the other hand, the election can also be the mere demand
of interest advocates and agents. hen the direction of selection proceeds
from above to below, that is, the elected is the dependent and subordinate
employee of the voters. As soon as standing party organizations as always
present, unyielding entities dominate the parliament, the parliament is subordinated to the logic of direct democracy and is no longer representative.
Yet as long as the parliament meets the presuppositions of a genuine repBourgeois Rechtsstaat and Political Form
251
resentation, which was overall still the case in the nineteenth century, one
could see in the parliamentary system an exceptional, indeed aristocratic
state form. he distinctive political situation of bourgeois liberalism, being
wedged between the sovereignty of the princes and of the sovereignty of the
people, found its expression in this politically intermediary form.
Even here, there exists the mixture and rendering relative of the principles
of form that is characteristic of a constitution of the bourgeois Rechtsstaat
type [220]. By no means is a pure aristocracy fully instituted. he aristocratic
aspect is only one element of form alongside others. he parliamentary system is not a distinctly political form, but rather a balancing of opposing
forms, which uses democratic and monarchical form elements for the purpose of separating powers. For the executive, it uses monarchical forms of
organization, such as a king or a state president, whose authority, moreover,
is especially enhanced in the interest of the distinction and balancing of
“powers.” A head of state, as chief of the executive, is necessarily part of this
entire system and is also often constituted exclusively as a representative of
the people in opposition to the parliament, so that even in republics under
the democratic principle, the dualism of constitutional monarchy (king and
parliament as both representatives of the nation) appears again. Even the
President under the Weimar Constitution should have a “representative”
character. He is thus elected by the entire German people according to Art.
41. He is also the one who represents the German Reich externally (Art. 45).
In several constitutions, the institution of an upper house or senate counts
as an additional aristocratic element, yet one that is independent and supplied with diverse justiications and constructions (below § 23). In typical
Rechtsstaat constitutions, such as the Belgian constitution of 1831 (Art. 32),
this means that the members of both chambers “represent the nation.” he
democratic principle ultimately inds its application above all in the legislature, speciically, in the fact that the people, or the enfranchised state citizens, not only elect oicials but also decide substantive questions directly
through referendum. herefore, all elements of form join together, though
they are rendered relative and balanced against one another, and this linkage and mixture is the essential thing for the modern bourgeois Rechtsstaat
constitution and its parliamentary system.
his means that inside the second part of the modern constitution, inside the elements of political form, a constitutional theory of today’s bourgeois Rechtsstaat must irst of all elaborate, in sequence and individually,
these forms, democracy, monarchy, and aristocracy, in order to see the elements of the mixture of forms and to properly understand its typical linkage, namely the parliamentary system, in its distinctiveness. [221]
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Bourgeois Rechtsstaat and Political Form
Part iii
the P olitiC al ComP onent of
the moDern Constitution
§ 17-1.
he heory of Democracy
Fundamental Concepts
I. [223] Overview of a few conceptual deinitions.
1. he relationship between democracy and republic. Democracy is a state
form that corresponds to the principle of identity (in particular, the selfidentity of the concretely present people as a political unity). he people are
the bearer of the constitution-making power and, as such, grant themselves
their constitution. At the same time, the concept of democracy can provide
a method for the exercise of certain state activities. It also designates a form
of government or legislative form and means that in the system of the separation of powers, one or several of these powers, such as the legislature or
the government, are organized according to democratic principles under
the widest possible participation of state citizens.
According to the contemporary manner of speaking, a democracy as
state form is also a republic. In terms of the government or legislature,
democratic structural elements can combine with the retention of a hereditary monarch. One part of state activity can be organized democratically,
another in a monarchic manner. In this case, the state is still mostly designated a monarchy. One can say with J. Bryce that there are “enough republicans who are not democrats, and a few monarchies, such as Great Britain and Norway, that are democracies” (Moderne Demokratien, I, German
edition, p. 22). Nevertheless, the boundary between the two concepts often
becomes luid even in depictions of democratic public law. Today, “republic” no longer designates the ideal state in the sense of Aristotle and St.
homas.
Since Machiavelli, moreover, the word “republic” often only negatively
involves an opposition to monarchy as state form. In the manner of speaking of bourgeois Rechtsstaat theorists, such as Kant, it means the Rechtsstaat that divides powers. herefore, it stands in opposition to [224] every
“absolutism,” whether or not, for example, it may be monarchic or democratic (above p. 200). In this regard, “republic” still retains something of the
ideal meaning of the classic tradition.
For the logic of state theory concept formation, it is of particular interest that the
form introduced as normal deines the other form per negationem. For Machiavelli,
for example, all states that are not monarchies are republics (Principe, cap. 1). For
Richard homa, by contrast (Erinnerungsgabe, p. 44), all states that are not democracies are “privilege states.” Kant’s logically consistent understanding of the bourgeois Rechtsstaat renders relative all principles of political form by making them
into organizational means of the balancing of powers.
2. Most deinitions of democracy speak of a “rule of the majority,” which
refers to the majority of the so-called active citizens, in particular the state
citizens with the right to stand for oice or to vote. In itself, that need be
neither the majority of the state members nor the majority of the inhabitants of the state territory. Recently, however, it has often been said in addition that it is not enough that the majority of the active citizens “rule.” More
precisely, the claim is that the great mass of the population must still have
rights of state citizenship. It is not acceptable for majority rule to obtain
inside a minority that has at its disposal a mass of persons who either are
without rights or are slaves. Bryce (Moderne Demokratien, p. 23) demands
that the great mass of the entire population, “for example, at least threefourths approximately,” have rights of state citizenship. R. homa (Erinnerungsgabe, p. 23) demands that personal freedom must be granted to all
those who belong to the people. herefore, when the “majority” is under
consideration, many diferent types of majority can be meant: speciically
(a) the majority of active citizens themselves participating in the vote; (b)
the majority of all active citizens, without regard as to whether they participate in the vote or not; (c) the majority of the state members; (d) the
majority of the population of an individual Land.
3. As democratic principles, equality and freedom are often termed
compatible with one another, while in fact both these principles are different and often opposed to one another in their presuppositions, content,
and efects. In terms of domestic politics, only equality can count properly
as a democratic principle. Domestic political freedom is the principle of
the bourgeois Rechtsstaat, which acts to modify the principles of political form, whether or not, for example, they are monarchic, aristocratic, or
democratic. But, otherwise, neither the concept of equality nor that of freedom may be used without more precise logical and historical distinctions.
On the concept of [225] democratic equality, see below II, p. 226. It must be
said about the term “freedom” that it is a liberal principle when meant in
the sense of an individual freedom accorded to every individual person by
nature. It comes into consideration only for the Rechtsstaat component of
the modern constitution, but not as a principle of political form. here all
are “equally free.”
he distinction between freedom and equality, like that between liberalism and
democracy, provides the foundation for the book by W. Hasbach, Die moderne
Demokratie, 2nd ed., 1923. his work considers the problem with very precise evidence and interesting material, but without a systematic state theory approach.
It sufers from the polemical, antidemocratic tendencies of the author. R. homa
(Erinnerungsgabe, p. 39) characterized equality and freedom as democratic principles and treated the representative democracy of liberalism as a subtype of
democracy in general. herefore, he did not distinguish between democracy and
bourgeois Rechtsstaat or between the principles of political form of democracy
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(identity) and representation. On the concept of “representative democracy,” see
above p. 218.
Additional deinitions of democracy are “government of the people by the
people,” “rule of public opinion” (government by public opinion [Schmitt’s
English]), or a state form where “the general right to vote is the foundation
of the whole” (thus R. homa). All these deinitions or characterizations
emphasize only individual elements or efects of the democratic principle
of equality, while the actual meaning of these individual elements is to be
derived irst out of a systematic elaboration of the fundamental concepts of
democracy, equality in particular.
4. he greatest lack of clarity arises from the fact that the concept of
democracy, like many other political concepts, became an entirely general
ideal concept, the ambiguity of which, moreover, preserved a place for more
diverse ideals and, inally, for everything that is ideal, beautiful, and appealing. Democracy is bound to and identiied with liberalism, socialism,
justice, humanity, peace, and international understanding. “he way is clear
for any statutory, peaceful development,” Dr. David, the Social Democratic
Reich minister, argued in the Weimar National Assembly. “Herein lies the
most genuine democracy.” his is a remark that is airmatively quoted by
Konrad Beyerle (Die Verfassung des Deutschen Reiches, Munich 1919, p. 7).
his boundless extension of the concept of democracy into a general ideal concept is found among bourgeois liberals as well as the Social Democrats. Liberals
like L. T. Hobhouse (Democracy and Reaction, 2nd ed., London 1909, p. 140) designate democracy as “the application of ethical [226] principles to politics.” In fact,
that is simply liberal. Jaurès deines democracy as justice, humanity, a federation of
peoples, and peace, which is an interpretation characteristic of the social-liberalism
of the Second International and its distinctive connection with the Geneva League
of Nations (Kautsky, Bernstein, McDonald, Herriot, Paul Boncour, homas, Branting, Vandervelde). hus, there arise distinctive complexes of ideas in which concepts
can no longer be distinguished from another. Notable for this type of consideration
is the book by homas G. Masaryk, Les problèmes de la Démocratie, Paris 1924, with
a preface by Albert homas.
II. he concept of equality. Some general and meaningless equality, which
by itself is present without regard for substance or value, does not suice
for the democratic concept of equality. Democracy’s precise state form can
be grounded only on a precise and substantial concept of equality.
1. General human equality. he equality of everything “that bears a
human face” is incapable of providing a foundation for a state, a state form,
or a form of government. No distinctive diferentiations and delimitations
may be derived from it; only the elimination of distinctions and boundaries
may be. No specially formed institutions can be constituted on its basis,
and it can only contribute to the dissolution and elimination of distinctions
and institutions that no longer have any validity in themselves. Like every
area of human life and thought, religion, morality, law, and economy, polihe heory of Democracy
257
tics also has its particular distinctions. Nothing distinctive, either in religious or moral terms or in political or economic ones, may be derived from
the fact that all persons are human. Naturally, the economic distinction of
producer and consumer, for example, or the juristic distinction of creditor
and debtor, cannot be explained from the fact that they are all persons.
Referring to this general humanity can soften certain injustices. It can also
moderate them and render them relative. However, such a reference does
not constitute a concept. On the contrary, when the human equality common to all should be the sole deinitive and decisive consideration, it is no
longer possible to implement some distinctive diferentiation. he idea of
human equality does not contain a juristic, a political, or an economic criterion. Its signiicance for constitutional theory lies in the fact that it is part
of liberal individualism and serves the principle of basic rights. [227]
An equality with no other content than the equality that is alone common to all
humans would be a nonpolitical form of equality because it lacks the corresponding possibility of inequality. Any form of equality receives its signiicance and sense
from the corresponding possibility of inequality. his equality becomes more intense as the inequality opposing it grows. A form of equality without the possibility
of an inequality, an equality that one has exclusively and that cannot be at all lost, is
without value and signiicance.
2. he democratic concept of equality is a political concept and, like
every genuine political concept, includes the possibility of a distinction.
Political democracy, therefore, cannot rest on the inability to distinguish
among persons, but rather only on the quality of belonging to a particular
people. his quality of belonging to a people can be deined by very diferent
elements (ideas of common race, belief, common destiny, and tradition).
he equality that is part of the essence of democracy thus orients itself
internally and not externally: within a democratic state system, all members of the state are equal. he consequence for the political and public law
perspective is whoever is not a member of the state is not taken into account under this democratic equality. In this instance, equality does not at
all mean that the democratic Athenians do not distinguish themselves from
the barbarians or that the democratic people of the United States accept
every foreigner as state citizen. he degree to which the foreigner is treated
equally does not involve political afairs. It is, rather, a matter of the logic
of general liberal liberty rights applied in the nonpolitical sphere (private
property, legal protection, etc.).
Consequently, according to the Weimar Constitution, “all Germans,” not all persons, “are equal before the law” (Art. 109 RV). According to Art. 4 of the Swiss federal constitution of 29 May 1874, “all Swiss” are “equal before the law.” Under Art. 19
of the Japanese constitution of 1889, it is “all Japanese,” etc. Even the French Declaration of the Rights of Man and of the Citizen of 26 August 1789 at the beginning
states that all persons are by nature free and equal. As soon as it involves political
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rights and those of the state, however, it no longer speaks of persons (homme), but
instead of state citizens (citoyen). See Art. 6 and 13.
3. his democratic equality is the prerequisite for all other additional
equalities, such as equality of the law, equal right to elected oice, equal
right to vote, general duty of military service, and equal access to all employment. Hence, the general right to elected oice is not the content of
democratic equality, but rather the consequence of a presupposed equality.
Because all members of the state are presupposed as equal, they must have
an equal right to elected oice or an equal [228] right to vote, etc. hese
forms of equality are instances of applied equality, not the essence of democratic equality. Otherwise, political democracy would be a mere iction and
would be based on the fact that state citizens are treated as if they were
equal. Perhaps today, however, some democratic institutions have only an
educational goal and initially treat state citizens equally merely in order to
nurture them toward a genuine form of equality. he essence of democracy
cannot be derived from this.
If this pedagogic perspective is emphasized in numerous writings on democracy,
it is a sign of the fact that the political form of democracy has become no longer
clearly understood or else has become problematical. Even in the clever and timetested writing by A. T. Hadley, Probleme der Demokratie, German edition, Stuttgart
1926, the inal word and the last resort is “education.”
4. his means democratic equality is a substantial equality. Because all
state citizens participate in this substantive component, they can be treated
as equals, having an equal right to election and to vote, etc.
he substance of equality can vary among diferent democracies and
historical periods.
(a) In Greek state theory, awareness of the necessity of physical and moral similarity was especially strong. As an opponent of democracy, Plato sees democracy’s
actual mistake in not stipulating strictly enough that the virtue of state citizenship,
ἀρετὴ, is the relevant mark of distinction and in rendering citizens equivalent without distinction, so that “men of the most diverse type ind themselves together under
one such constitution” (Politeia VIII, 11, 557c, p. 331 of the translation by Apelt). It is
self-evident, however, that even despite this diversity only free Hellenes, not barbarians and slaves, are part of Greek democracy. Aristotle does not place himself in such
an opposition to democracy. According to him, the best state, the “polity,” indeed
comes very close to that which one today mostly designates as democracy, which is
a state where all participate in ruling and being ruled (πάντας ὁμοίως κοινωνεῖν τοῦ
κατὰ μέρος ἄρχειυ καὶ ἄρχεσθαι). At least in book 7 of the Politics, this polity appears
as the best state form, in which explicitly the great similarity of the persons living
in the state is also presupposed. For it is self-evident that such a state, in which all
rule as well as are ruled by others, is not a “polity” for humanity. he barbarians
are slaves by nature (φύσει) (Politics, I, 1, 5). he slave naturally has no ἀρετή, no
feeling of freedom and no sense for the elevated type of existence that man inds in
the political condition, speciically, the beautiful and noble life, the εῦ ζῆν. he goal
and purpose [229] of the slave is by nature “to belong to another” (ἄλλου εἶναι). he
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259
barbarian states are only states in name, for in them slaves are ruled by slaves. Only
the free Hellenes by nature have the physical and psychological properties that are
part of political existence. Even in democracy, it is always presupposed that political
existence consists only of free Hellenes. Aristotle, moreover, expressly states that
the equality of the law can be valid only under the equality of birth and power. he
equality before the law, then, is only just when those who are subject to the law
are equal. “Equality,” he argues, “counts as just. However, it is also not equality for
everyone, but for those who are equal. Even inequality counts as just, and it is naturally so not for all, but only for those who are unequal” (Politics, III, 5, 8).
his discriminating concept of equality diferentiates itself for the irst time in
the philosophy of the Stoa. he diference of peoples and clans, of the Hellenes and
the barbarians, dissipates in the face of reason, which is common to all, governs the
entire world, and makes all wise men into world citizens of a global state. It is noteworthy that this theory of the world citizen demonstrated a special preference for
monarchy and gave up the democratic ideal. See J. Kaerst, “Studien zur Entwicklung und theoretischen Begründung der Monarchie im Altertum,” Hist. Bibl., vol. 6,
1898, p. 65.
(b) In the medieval theory, the ἀρετή or virtus is declared the principle of the
aristocracy by homas Aquinas. In the “Discorsi,” by contrast, Machiavelli presupposes this quality among the citizens of the democracy because democracy would
not be possible otherwise. According to Montesquieu, the vertu is the principle of
the republic. He deines this vertu conceptually as “a very simple matter, the love of
the republic” (Esprit des lois, V, 2). It has nothing to do with education and knowledge. In a democratic republic, it is love of equality, above all sobriety and modesty
in terms of demands, frugality (V, 3). It is thoroughly part of the classical tradition
to assume that empire destroys democracy because it destroys “virtue” (in contrast
to this, cf. today F. Tönnies, who, relying on Goldscheid, states that the democratic
state must be rich or become rich; Verhandlungen des 5. Deutschen Soziologentages,
1926, p. 35). In Rousseau’s theory of the “Contrat social,” full comparability is the
actual foundation of the state. What the people want is simply good, because they
will it. Hence, all want the same thing. In reality no one is outvoted. And when
he is outvoted, he has simply deceived himself about his true and better intention.
his common will is not at all inclined toward subjecting itself to the transitory
majority, for the will of the majority, even the will of all, can also be corrupt and no
longer leads to a general will. One does not want to subject oneself to the majority,
because it is the majority, but rather because the substantial similarity of the people
is so considerable that all intend the same thing based on the common substance.
Consequently, the state rests on the homogeneity and self-identify of the people, not
on contract. [230] hat is the strongest and most logically consistent expression of
democratic thinking. he signiicance of this presupposition of democratic equality
demonstrated itself in the practice of the Jacobin dictatorship. he political opponent had no “virtue,” that is, not the proper political attitude, no “civisme.” He was
not a patriot and, thus, hors de loi. he degree to which an instance of inequality corresponds to political equality as a necessary correlate becomes manifest especially
clearly here.
(c) he substance of democratic equality can be found in commonly held religious convictions. Inside religious communities, an equality of all members arises
to the extent that all sincerely agree on essentials. In smaller associations, whose
members consider themselves the chosen, saintly, or saved, the fact of being chosen,
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he heory of Democracy
consequently, the inequality of those outside the association, is an especially irm
foundation for equality inside the community.
For the emergence of modern democracy, the example of the English sectarians
under Cromwell is signiicant. According to a widely held view, the ideas of modern
direct democracy appeared for the irst time in the Levelers’ movement (G. P. Gooch,
he history of English Democratical Ideas in the 16th Century, Cambridge 1894). On
28 October 1647, these radical sectarians proposed an agreement that was passed
on to the Parliament, but it had no further practical signiicance because Cromwell suppressed the entire movement. his agreement stipulated the dependence
of Parliament on the people, and the proportional distribution of electoral seats. As
rights from birth (native rights), it stipulated freedom of conscience, freedom from
compulsory military service, the elimination of exceptional courts, equality before
the law, and security and welfare of the people as the foundation of legislation. Such
basic tenets should be established as “fundamental principles” and be submitted to
the people for acceptance. he leader of the Levelers, Lilburne, states in the Legal
fundamental Liberties of the people of England (1649) that this “foundation” of a
just government must be submitted to the people for their consent in every county.
But such demands of equality, religious freedom, consent of the people naturally
are valid fundamentally only for one’s fellow believers. Not one of these sectarians
also thought of granting these rights to papists or atheists. Incidentally, Lilburne
expressly states in the work just mentioned that only those with the proper outlook, the well-afected people [English in Schmitt’s original], are entitled to election and “can give their consent to the foundations” (he Clarke Papers, edition of
C. H. Firth, vol. II, Camden Society, 1894, pp. 257/8). Even here it is not a matter of
a general human equality, but only of the equality of the holders of certain religious
convictions, who struggle against common opponents, papists, Anglicanism, and a
state church. Even in the American colonies, where the emigrant sectarians or Puritans founded new communities, the freedom of conscience was valid only for the
like-minded. In Puritan Massachusetts, statutes provided that each person be [231]
obligated to participate in the public religious service. Whoever was not a member
of the religious community was not treated as a freeman. If someone was excluded
thoroughly by the community for three months because of transgressions, he was
punished with imprisonment and exiled (Rothenbücher, Trennung von Kirche und
Staat, 1910, p. 119). To the extent that one is speaking here of democracy, the issue
is the fact that a new religious feeling becomes the foundation of a new community,
inside of which the community members consider themselves as equal to one another. Even here one cannot speak of a form of human equality without substance.
More precisely, the substance of this democratic equality lay in the community of
genuine religious belief.
(d) he national democracy. he French Revolution of 1789, despite its ideas of
humanity and general brotherhood of all peoples, presupposes the French nation
as a historically given entity. Its constitutions are linkages of the principles of the
bourgeois Rechtsstaat with the democratic principles of the constitution-making
power of the people (see above § 6, p. 50). In the nineteenth century, the national
idea led to new political formations and to the democratization of the states through
general compulsory military service and the general right to election. he substance
of equality, which is part of all these institutions, resides in the national component.
he presupposition of this type of democracy is national homogeneity.
In contrast to the general concept of the people, the nation concept means a
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261
people individualized through a politically distinctive consciousness. Diferent elements can contribute to the unity of the nation and to the consciousness of this
unity, such as common language, common historical destiny, traditions and remembrances, and common political goals and hopes. he language is a very important
factor in this, yet it is not by itself determinative. What is deinitive is the commonality of historical life, conscious willing of this commonality, great events and
goals. Genuine revolutions and victorious wars can overcome the linguistic diferences and justify the feeling of national belonging, even if the same language is not
spoken.
If the nation is understood as the essential substantive element of democratic
equality, practical consequences of a special type result. A democratic state that
inds the underlying conditions of its democracy in the national similarity of its citizens corresponds to the so-called nationality principle, according to which a nation
forms a state, and a state incorporates a nation. A nationally homogeneous state appears then as something normal. A state lacking this homogeneity has an abnormal
quality that is a threat to peace. he national principle thus becomes the prerequisite of peace and the “foundation of international law.”
he resulting possible solutions vary, if there is not national homogeneity in real
political terms, because a state consists of diverse nations or contains national minorities. [232] Initially, there is the attempt at a peaceful reconciliation of diferences. In fact, however, that means either peaceful engagement and separation or
gradual, peaceful assimilation to the ruling nation. he currently existing minority
protection under international law (above p. 74) attempts to guarantee a peaceful
course of action. Hence, the national minority is protected not as a nation. As a
nation, it should not have political rights against the ruling nation, because otherwise with the nationality principle even the principle of the democratic state itself
would be eliminated. More precisely, the current international law regime protecting national minorities operates from the perspective of the protection of the single
person’s individual rights, for whom equality, freedom, property, and the use of his
native language is guaranteed as an individual. Here, the openly professed idea of
national homogeneity and the prerequisite of democracy are peacefully realized.
he other method is quicker and more violent. It is the elimination of the alien
component through suppression or exile of the heterogeneous population and other
radical means. he most important example of this method is the Greek-Turkish
Treaty of Lausanne of 30 January 1923, which in accordance with Art. 542 of the
Treaty of Lausanne entered into force on 26 August 1923 after its ratiication on
24 July 1923. According to the treaty, the Greek population living in the Turkish
area is transferred to Greece, and the Turkish population living in the Greek area
is transferred to Turkey, without regard for the will of the persons afected by this
exchange.
Additional consequences are attributed to such methods of ensuring or realizing
the national homogeneity. he irst consequence is control of foreign entry and expulsion of unwanted foreign elements through immigration legislation, as it is implemented in the United States of America and in the English dominions, especially
in Australia and the South African Union. he second consequence is development
of special forms and methods of rule for countries with a heterogeneous population,
by which it is a matter of, on the one hand, avoiding open annexation and, on the
other hand, of retaining a hold on the most important political decisions, such as
those involving colonies, protectorates, mandates, and intervention treaties like
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he heory of Democracy
those the United States of America concluded with Latin American states (above
p. 73). An essential aspect of this method is the fact that the dominated country remains foreign territory in public law terms and that its population does not obtain
membership in the state of the ruling country.1 Laws against foreign domination are
the third consequence. Such laws are for the protection of national industry and for
the protection against the economic and social power of foreign capital, and they
result after war in numerous states. Especially famous cases are the Turkish laws
that implement a [233] Turkish domination of the country, and Art. 27 of the 1917
Mexican constitution, which allows ground and mineral resources to be nationalized.2 Fourth, there is also the more recent practice of the law of state membership,
the possibility of expatriation, denaturalization, etc. Fifth, a noteworthy individual
consequence is that the constitution of the Czecho-Slovakian state of 29 February
1920 was only established by party delegates of the Czech and Slovak parties and
under exclusion of the non-Slavic population (above § 8, p. 87). On this, see the instructive apology by F. Weyr, Zeitschrift für öfentliches Recht, I, p. 3, and Jahrbuch
des öfentlichen Rechts, XI (1922), p. 352f.
Such efects of democratic homogeneity demonstrate the opposition of democracy as a principle of political form to the liberal ideas of freedom and equality of the
individual person with every other person. A democratic state would deprive itself
of its substance through a logically consistent recognition of general human equality
in the area of public life and of public law.
(e) he Bolshevik policy of the Soviet Republic made an attempt to substitute
national homogeneity with the homogeneity of a class, of the proletariat. [234]
Art. 20 of the Declaration of the Rights of Working and Exploited People in
Section I of the constitution of 10 July 1918 reads: “Proceeding from the solidarity
of the working people of all nations, the Russian socialist, federalist, soviet republic
guarantees to foreigners, who for work purposes are residing temporarily in the
territory of the Russian Republic, and to the working class or the peasantry that are
not exploiting foreign work forces all the political rights of the Russian state citizen
and concedes to the local Soviet the right to accord such foreigners the protection
of the civil law of the Russian state without qualiied formalities.” Cf. Bogolepow,
Die Rechtsstellung der Ausländer in Sowjet-Rußland, Quellen und Studien des
Osteuropa-Instituts in Breslau, Law Department, new series 4, Berlin 1927, pp. 29,
170f., who argues that “the solidarity of the working people of all nations is the condition of their equal position in regard to political rights.”
Even if this attempt succeeds and the concept of the proletariat is capable of
replacing the substance of national homogeneity with a class-based homogeneity,
here again a new distinction, proletarian against bourgeois, would also arise and the
structure of the political concept of democracy would be unchanged. In place of
national diferences, that of proletarian and capitalist states would come into play,
and through it the grouping of friend and of enemy would receive a new intensity.
5. Democratic equality is essentially similarity, in particular similarity among the people. he central concept of democracy is people and
not humanity. If democracy is to be a political form at all, there is only a
people’s democracy and not that of humanity. Even the concept of class
cannot replace the concept of the people for democracy. So long as class is
a purely economic concept on a thoroughly economic foundation, it does
not ground a substantial homogeneity. If class becomes the foundation of
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263
a militant organization and supplies the justiication for a genuine friend
and enemy grouping, class is no longer a purely economic concept, because
a genuinely militant class is no longer an essentially economic entity. It is,
rather, a political one. If it succeeds in dominating the state, the class in
question becomes the people of this state. he democratic concept of the
people always remains in place and contains an opposition both to the concept of humanity as well as to the concept of class.
III. Deinition of democracy. As a state form as well as a governmental or
legislative form, democracy is the identity of ruler and ruled, governing and
governed, commander and follower. [235]
1. his deinition results from the substantial equality that is the essential
presupposition of democracy. It precludes the possibility that inside the
democratic state the distinction of ruler and being ruled, governor and governed expresses or produces a qualitative diference. In democracy, dominance or government may not rest on inequality, therefore, not on the superiority of those ruling or governing, nor on the fact that those governing
are qualitatively better than the governed. hey must agree substantively in
terms of democratic equality and homogeneity. Hence, when one rules or
governs, he may not deviate from the general identity and homogeneity of
the people. Consequently, the power or authority of those who rule or govern may not be based on some higher qualities that are not easily obtained
by the people, but rather only on the will, on the commission from and conidence of those who are being ruled or governed and thereby actually rule
themselves. hus the turn of phrase that democracy is the rule of the people
over itself receives its sense as an idea. All democratic tendencies and institutions like equality and equal rights in the most diverse areas (the general
right to election and to vote and the ever broader extension of the general
right to election and to vote to men and women, reduction of the age of
election, shortening of the electoral period, dissolution of parliament) arise
from this striving to realize the identity of governing and governed.
he word “identity” is useful for the deinition of democracy, because it denotes
the comprehensive identity of the homogeneous people. More speciically, it denotes the identity of the homogenous people that includes both those governing
and governed. And it denies the diference present in other state forms between
the governing and governed. In this regard, it is noteworthy that the diference between representing and being represented does not come into consideration, for
that which is being represented is not those governing, but instead the political
unity of the whole. In pure democracy, there is only the self-identity of the genuinely
present people, which is not a type of representation. What is meant by the word
“identity” is the existential quality of the political unity of the people in contrast to
any normative, schematic, or ictional types of equality. On the whole and in every
detail of its political existence, democracy presupposes a people whose members
are similar to one another and who have the will to political existence. Under this
presupposition, it is thoroughly correct when Rousseau states that what the people
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he heory of Democracy
will is always good. Such a principle is correct not on the basis of a norm. It is correct because a people’s existence is based on its homogeneity.
For the further justiication of the word “identity” in this connection, I gladly refer
to E. Husserl, Logische Untersuchungen, II 2, p. 112, who argues that “every instance
of equality refers to a species to which all of them [236] belong. And both aspects of
this species are not initially something merely equal and cannot be, since otherwise
the most perverse regressus in ininitum would be unavoidable . . . Equality is the
relationship of objects that provides the foundation for one and the same species.
If it is no longer permissible to speak of the identity of the species, of the respect in
which the equality takes place, the talk of equality also loses its foundation. (Cf. on
this point the thorough treatment of H. Lipps, Untersuchungen zur Phänomenologie
der Erkenntnis, part I, Bonn 1927, p. 10f.) Governing and governed remain in the
identity of homogenous substance that constitutes the essence of the democratic
state. Democratic equality is never something mathematical, numerical, or statistical. he equality of mathematical quantities is, as H. Lipps, Untersuchungen, p. 12,
aptly states, “not an equality of things and does not denote an identity. It is, rather,
the starting point of an axiom as the irreducible root of certain mathematical theorems.”
2. In democracy, state power and government derive from the people.
he problem of government internal to democracy lies in the fact that those
governing and those governed may diferentiate themselves only inside the
comparability of the people, which remain equal with one another. For the
diference between those governing and those governed, between those who
command and those who obey, remains in place so long as there are government and commands generally, that is to say, as long as the democratic
state as state exists. hus, a diferentiation of those governed and those governing cannot be displaced. As a genuine political concept, democracy is
also far from the dissolution of such distinctions into normative elements
of an ethical type or into mere economic functioning. Compared to other
state forms, the diference between those governing and those governed
can even be enhanced and increased extraordinarily in material terms to
the extent that only the persons who govern and command are still rooted
in the substantive similarity of the people. If they receive the consent of and
have the conidence of the people, to which they belong, their rule can be
stricter and more intense, their government more decisive than that of some
patriarchal monarch or a cautious oligarchy. Gambetta considered democracy simply the foundation of an especially strong government. his idea is
prominent even among the democratic politicians of the Weimar Coalition.
In the debates over Art. 48 during the Reichstag session of 3 March 1920,
Deputy Petersen stated that “there is no state form as unobjectionable in
terms of securing the means of power as democracy, because it rests on
the equal rights of all state citizens.” One cannot generally deine a political
form according to properties like mildness and hardness, ruthlessness or
humanity. It is the distinctly liberal, Rechtsstaat component, which linked
he heory of Democracy
265
itself with the democratic [237] element of a constitution, that leads to the
weakening and softening of the power of the state by a system of controls
and restrictions. his tendency is not essential to democracy as a political
form; it is perhaps even foreign to it. A dictatorship in particular is possible
only on a democratic foundation, while for this reason it already contradicts the principles of liberal legality, because it is part of dictatorship that
no factually deined, generally legislated competence is provided to the dictator. Instead, the scope and content of his empowerment are dependent
on his discretion, so that there is not a jurisdiction in the Rechtsstaat sense
at all.
A democracy must not permit the inevitable factual diference between
governing and being governed to become a qualitative distinction and to
distance governing persons from those governed. In a democracy, whoever governs does so not because he possesses the properties of a qualitatively better upper class opposed to an inferior lower class. hat would
naturally eliminate the democratic homogeneity and identity. Greater eiciency and specialized knowledge could reasonably prompt the people to
entrust comrades who are eicient with the administration and leadership
duties. hen, however, someone governs only because he has the conidence of the people. He has no authority that stems from special being.
It is all the better when only the best and most eicient of the people are
entrusted with governing. But this type of selection and preference for the
most capable persons in democracy never allows it to lead to the formation
of a special class endangering the qualitative and substantive equality of all,
which is the supreme prerequisite of every democracy. hose who govern
are rendered distinct by the people, not from the people, and the denunciation of the nobility by Sieyès in 1789 involved the nobility not wanting to be
distinguished by their fellow citizens, but rather from their fellow citizens.
3. Democratic identity rests on the idea that everything inside the state
involving activation of state power and government only occurs within the
conines of the people’s substantial similarity to one another. It is clear that
all democratic thinking centers on ideas of immanence. Every departure
from immanence would deny this identity. Every type of transcendence that
is introduced into a people’s political life leads to qualitative distinctions
of high and low, [238] above and below, chosen, etc., while in a democracy
state power must derive from the people and may not be set in motion by a
person or from a position that is outside of the people and standing above
it. State power does not even derive from God. At least so long as the possibility exists that another besides the people itself decides deinitively what
in concreto God’s will is, the appeal to the will of God contains a moment of
undemocratic transcendence. he principle “all power derives from God”
can possibly mean that a state power is exercised even against the will of
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he heory of Democracy
the people; in this meaning, it contradicts democracy. It does so as well if it
means that with the appeal to the will of God, the deinitiveness and validity
of the people’s will is denied. If God, in whose name one governs, is simply
not this people’s god, the appeal to God’s will can lead to the fact that the
will of the people and the will of God are diferent and collide with one another. hen, under democratic logic, only the will of the people must come
into consideration, because God cannot appear in the political realm other
than as the god of a particular people. hat is the meaning of the principle
“the people’s voice is the voice of God.” his saying, which was canonized in
the American democracy by Jeferson, in Europe by Mazzini, is more than
a manner of speech. With its direct appeal to God as well as to the kingdom
of God’s grace, it has a polemical sense of rejecting every other governing
authority, foreign and domestic, that in the name of God intends to impose
its will on the people. he clear implication is the rejection of all political
inluences and efects not originating from the substantial homogeneity of
the people themselves.
he heory of Democracy
267
§ 18.
he People and the Democratic Constitution
I. he people anterior to and above the constitution.
Under democracy, the people are the subject of the constitution-making
power. he democratic understanding sees every constitution, even its
Rechtsstaat component, as resting on the concrete political decision of the
people capable of political action. Every democratic constitution presupposes such a people capable of action (above § 10, p. 91). [239]
II. he people within the constitution exercising constitutionally regulated powers. In the context of and on the foundation of a constitution, the
people as the electorate or state citizenry entitled to vote can exercise certain constitutionally regulated competencies.
1. Elections. he voter determines the person who should carry out a
state activity. he election can have a double sense of the determination of
a representative or selection of a dependent agent.
(a) Election of a representative of the entire, politically united people.
Art. 41 of the Weimar Constitution, for example, provides for the election
of the President by the entire people. he majority of the state citizens participating in the election with the right to vote determine the election result.
he nonvoting registered voters inluence the electoral result through the fact
that by their absence they reduce the number of the required votes. he greater
the number of nonvoting registered voters, the smaller the number of votes cast,
and, concomitantly, the percentage of the total electorate that determines the electoral result decreases. he majority of votes cast counts then as the will of the entire
people. his will is valid, irst, as the will of even the electoral participants who voted
for the losing side, and yet also as the will of the nonvoting registered voters, and
inally as the will of all state citizens not registered to vote. In a democracy, it is selfevident that the state citizen who is outvoted or the nonvoting state citizen cannot
claim that he did not vote for the winning candidate.
(b) Election of a member of a legislative body (popular assembly, parliament, Reichstag, provincial legislature) of the entire state. Even the election
under current constitutional law should provide the foundation for a form
of representation, although actually this idea is becoming no longer clearly
understood and the election, in particular through the methods of the system of proportional representation with party lists, is lent the character of
selecting party and interest functionaries.
During an individual election in an electoral district, the majority of the registered voters of this electoral district participating in the election select a deputy. he
deputy elected, however, serves as deputy of the entire people (Art. 21 of the Weimar
Constitution). he majority will of the election participants in an electoral district
is valid not only as the will of the defeated voters and those not casting ballots or
state members of this district, but rather also as the will of all other enfranchised
voters as well as of the state citizens of the entire state who are not entitled to vote.
Any other construction is not possible because it would make the circle of voters an
independent entity and would destroy the political unity.
Apparently, this risk declines with the diferent methods of the system of proportional representation. his system’s most important justiication is that one designates it as a system in which votes are cast not according to personal and local
perspectives, but rather according to ideas (J. Jaurès), which is an optimistic understanding in view of the reality of current party life. Yet in this system, the electoral
district permits its transformation into a mere technical means of voting; [240] the
special meaning of local and territorial electoral districts diminishes along with it. It
is also possible to unify and validate votes throughout the entire state that are in the
minority in certain districts. In this way, moreover, the necessity of a runof election
and, in the current system of lists, also the necessity, even the possibility, of a midterm or special election diminishes. In this system, the idea of the political unity of
the entire people undoubtedly emerges stronger in a territorial sense. Nevertheless,
it would be incorrect to consider the system of proportional representation more
democratic than other systems. he divisions that occur in this system are indeed
not territorial, but extend more profoundly through the entire state. Still, as in other
systems, the will of the voters for a list must count as the will of all other voters. he
deputies of every individual list, that is, of every party, must serve as deputies of the
entire people. It must be perceived as true, therefore, that every German national
voter also elected the communist deputies receiving mandates to the same extent
that the German national deputies represent the communist voters. If the division
into electoral districts with individual elections signals an endangerment of territorial cohesion, this system signiies a threat to homogeneity. he diferent voter
groups are no longer aware, and they are incapable of being aware, that they are not
selecting their own deputies, but instead only deputies of the entire people.
(c) Local elections do not come into consideration in this context, because they do not involve the political unity as a whole. So from the standpoint of state theory, they must be considered a qualitatively diferent type
of election.
2. Ballot questions. By voting, a state citizen takes a position on a substantive question and provides a substantive answer in some form.
(a) he diferent methods of referendum, of the plebiscite, and of the
popular vote, which are included (on this below § 20, p. 259) under the collective designation “popular vote,” belong in this category.
he majority of the votes cast usually decides the issue. In other words,
the content of the response counts as an answer to the question posed,
which is the answer most voting state citizens gave. At this point, it is already clear that logically, psychologically, and in terms of voting technology,
the value of the answer depends entirely on the posing of the question. Speciically, only such answers may be tallied that give a clear and simple substantive answer to a question that is just as clear and simple as well as substantive. In general, the question must be so posed that it can be answered
he People and the Constitution
269
with a simple “yes” or “no.” he yes or no of the simple majority of the votes
cast then counts as a decision of the entire people. It counts even as the
will of those who are outvoted and, moreover, as the will of those who did
not participate in the vote as well as those who do not have a right to vote.
[241]
If a certain type of electoral participation is required, then enfranchised voters
who abstain are the deciding factor even more than in other votes or in elections
simply by distancing themselves from the election. Art. 75 provides, for example,
that “a decision of the Reichstag can only be suspended by referendum when the
majority of enfranchised voters participate in the vote.” he petition counts as rejected. Put diferently, the question presented counts as denied when the majority of
enfranchised voters did not participate in the vote. In this way, the decision is made
by those who do not vote, thereby making clear that they do not intend to decide.
Remarkably, the will of those who express a will is not deinitive in this instance.
Instead, the will of those who express no will and possibly also have no will is decisive. heir “will” or better “non-will” counts also as the will of those who expressed
one (on this issue, particularly in reference to the referendum of 20 June 1926, see
R. Liepmann, Zeitschrift für öfentliches Recht, vol. VI, 1927, p. 609f.).
(b) Popular initiative (popular legislative petition). A minority is suicient to register a petition (according to Art. 73, 2, one-twentieth of those
entitled to vote, and according to Art. 73, 3, a tenth of those entitled to vote).
he petition of the minority is designated as a popular legislative proposal,
although, in contrast to the aforementioned cases, one cannot say that the
will of the enfranchised voters taking part in the placing of the petition
counts otherwise as the will of all. he iction is superluous and misleading
in this context because it would only mean that everything that proceeds
lawfully in the context of a democratic state, even every single judicial decision and any individual administrative act, counts as the will of the entire people and of all individual state citizens. More precisely, the decisive
thing in such a minority petition is that it can even be registered against
the will of the majority. he word “people” in this instance has an essentially diferent sense than in combinations such as “popular initiative” or
“popular election.” he expression is explicable, rather, in reference to the
fact that in a democracy an initiative is normally also part of the realm of
activity of the state oicials, or of the magistracy. One may say with Lorenz
von Stein (Verwaltungslehre, p. 92) that there can be no government without initiative, even if it shares this with the legislative body. In addition to
other meanings, the word “people” has the special sense that it includes a
contrast to every state oicial and magistrate. People are those who do not
govern, do not represent, do not exercise organized functions with an oicial character. If an authority is nevertheless now given to a non-organized
part of the state citizens entitled to vote, an authority that, according to
its nature, would be a concern of state [242] oicials, then the peculiarity
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he People and the Constitution
of the word “people” lies in the fact that it is precisely not oicials who are
active here. It is always presupposed that an unorganized mass places the
petition. If a party with a suiciently large member count would organize
an oice, in order to constantly register popular initiatives, the sense of
this constitutional rule would be presented falsely, and a “popular” petition
would no longer be at issue. A “party” petition would be instead. he distinctive quality of the concept “people” resides in the fact that the people is
an entity that is not formed and is never capable of being fully formed.
III. 1. he people compared with the constitutional regime (public opinion). Under the democratic theory of the people’s constitution-making
power, the people stands as the bearer of the constitution-making power
outside of and above any constitutional norm. If certain competencies
(elections and instances of voting) are assigned to the people by the constitution, their potential for political action and signiicance in a democracy
is in no way exhausted or settled. Compared to all such normative frameworks, the people continue to exist as an entity that is directly and genuinely present, not mediated by previously deined normative systems, validations, and ictions. Even if one incorporated constitutional institutions
of a so-called direct democracy into the state organization, the people are
not excluded from all other relationships. And the fact that individual constitutional powers are assigned to the voters and state citizens entitled to
vote still does not transform the people into an administrative organ. It is
precisely in a democracy that the people cannot become the administrative apparatus and a mere state “organ.” he people is always more than a
functioning bureau with the competence for settling oicial business, and,
together with instances of a constitutionally organized activity (popular
election and direct popular vote on speciic issues), the people in its essence
persists as an entity that is unorganized and unformed.
In this context, the concept of the people is deined in negative terms, in particular by the contrast with the system of administrators and magistrates organized by
position. Beyond this negation of the oicial realm, in other areas it is also characteristic of the concept of the people that it can be deined negatively. It would not
only generally involve something sociologically essential, if one deined the people
negatively in such a manner (for example, the audience in a theater as the part of
those present who do not perform), but this distinctive negativity also does not permit itself to be mistaken for the scholarly treatment of political theories. In a special
meaning of the word, the people are [243] everyone who is not honored and distinguished, everyone not privileged, everyone prominent not because of property,
social position, or education. hus states Schopenhauer: “Whoever does not understand Latin is part of the people.” In the French Revolution of the year 1789, the
bourgeoisie as hird Estate could identify itself with the nation and the bourgeoisie was the people, because the bourgeoisie was the opposition to the aristocracy
and to the privileged. Sieyès posed the famous question: what is the hird Estate?
He answered that it is the nation. he hird Estate is nothing and should become
he People and the Constitution
271
everything. But as soon as the bourgeoisie itself appeared as a class that is marked
by property and that dominates the state, the negation was extended. Now the proletariat became the people, because it becomes the bearer of this negativity. It is
the part of the population that does not have property, does not participate in the
productive majority, and inds no place in the existing order. In contrast to the propertied classes, consequently, it appears as the people in an especially intense sense,
and an assembly of proletarians is today more a popular assembly than an assembly
of industrialists or intellectuals can be. Democracy becomes a proletarian democracy and eliminates the liberalism of the propertied and educated bourgeoisie.
2. his negatively deined entity, the people, is not less signiicant for
public life because of the negativity of its deinition. “People” is a concept
that becomes present only in the public sphere. he people appear only in
the public, and they irst produce the public generally. People and public
exist together: no people without public and no public without the people.
By its presence, speciically, the people initiate the public. Only the present,
truly assembled people are the people and produce the public. he correct idea that supports Rousseau’s famous thesis that the people cannot be
represented rests on this truth. hey cannot be represented, because they
must be present, and only something absent, not something present, may
be represented. As a present, genuinely assembled people, they exist in the
pure democracy with the greatest possible degree of identity: as ἐκκλησία in
the market of Greek democracy; in the Roman Forum; as assembled team
or army; as a local government of a Swiss Land. But also where they assemble themselves not through an ordered procedure in a certain place, the
distinctive meaning of the people nevertheless reveals itself in the genuine
presence of a publicly assembled people. he genuinely assembled people
are irst a people, and only the genuinely assembled people can do that
which pertains distinctly to the activity of this people. hey can acclaim in
that they express their consent or disapproval by a simple calling out, calling higher or lower, celebrating a leader or a suggestion, honoring the king
or some other person, or denying the acclamation by silence or [244] complaining. Even in a monarchy, the people inevitably appear in this activity,
so long as the monarchy is a vibrant state system generally. When indeed
only the people are actually assembled for whatever purpose, to the extent
that it does not only appear as an organized interest group, for example,
during street demonstrations and public festivals, in theaters, on the running track, or in the stadium, this people engaged in acclamation is present,
and it is, at least potentially, a political entity. Often enough, experience
has conirmed that every popular assembly, even one that initially appears
nonpolitical, intrinsically contains unexpected political possibilities.
Only through such simple and elementary appearances may the essential concept of the public, which, though rather obscure, is essential for
all political life, especially for modern democracy, again secure for itself
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he People and the Constitution
its authority and recognize the actual problem of modern democracy. For
genuine popular assemblies and acclamations are entirely unknown to the
constitutional regime of contemporary bourgeois democracy. he right of
assembly still appears as a bourgeois liberty right that is guaranteed (Art.
124) and as an object of regulation under the law of association and assembly. Whoever confuses the constitution of a democracy with such sets of
norms can easily dispute that there is a problem at all. For the organization
of democracy, as it occurs today in states with a bourgeois Rechtsstaat constitution, extends beyond directly ignoring the assembled people as such,
because, as already often discussed, a distinctive feature of the bourgeois
Rechtsstaat constitution is to ignore the sovereign, whether this sovereign
is the monarch or the people. Freedom of assembly certainly exists and
“popular assemblies” take place during elections and votes. Considered in
constitutional terms, the assembled are not the people and do not engage in
a public function. Where the people engage in constitutionally sanctioned
functions, such as elections and votes, the assembly is not directly part of
the legally established process. he election or vote, more precisely, is a
secret individual vote. he method of the secret individual vote, however, is
not democratic. It is, rather, an expression of liberal individualism, much in
the way that its early advocate in the nineteenth century, Jeremy Bentham,
[245] was a typical liberal. In the struggle against impermissible electoral
inluencing by the government and against other misuses, the demand for
secret individual ballots makes sense and is relatively justiied. Nevertheless, it is necessary to understand its nature correctly and to be clear that in
principle it is part of the circle of ideas associated with liberal individualism
and contradicts the political principle of democracy. For the logically consistent execution of the secret individual election and the individual vote
transforms the distinctly democratic, or political, igure, the state citizen or
citoyen, into a private man who, from the sphere of the private, whether or
not this private sphere may be his religion or his economic interest or both
together, expresses a private opinion and casts his vote. Secret individual
ballot means that the voting state citizen is isolated in the decisive moment. In this way, the gathering of those present and any acclamation has
become impossible. he connection among the assembled people and vote
is completely broken up. he people elect and vote no longer as the people.
In modern democracy, the methods of the popular election and referendum today in no way contain the procedure of a genuinely popular election
and of a referendum. Rather, they organize a procedure for an individual
vote with the addition of individual votes. his procedure is typical in most
democracies today. Alongside the freedom of election, consequently, the
Weimar Constitution also guaranteed the secret ballot (Art. 125, 22, and 17).
According to electoral laws and voting orders, one seeks to provide through
he People and the Constitution
273
a set of safety measures (ballot boxes, envelopes, voting booths, etc.) that
the secret is secure and the individual remains “unobserved.” In the United
States of America and in other Anglo-Saxon countries, complicated machines with registers and buttons were invented in order not only to ensure electoral and voting secrecy institutionally, but also to provide it additional mechanical guarantees. It is fully conceivable that one day through
ingenious discoveries, every single person, without leaving his apartment,
could continuously express his opinions on political questions through an
apparatus and that all these opinions would automatically be registered by
a central oice, where one would only need to read them of. hat would
not be an [246] especially intensive democracy, but it would provide a proof
of the fact that the state and the public were fully privatized. It would not
be public opinion, for even the shared opinion of millions of private people
produces no public opinion. he result is only a sum of private opinions. In
this way, no common will arises, no volonté générale; only the sum of all
individual wills, a volonté de tous, does.
On American methods of secret registration by machines, see Esmein-Nézard,
Droit constitutionnel, II, p. 323f. On the “safety measures” intended to ensure an “unobserved individual vote” under valid German law, see § 41, 42, 43 of the German
Decree on Reich Elections and Votes of 14 March 1924 (Reichgesetzesblatt I, p. 173,
with the changes of 3 November 1924, Reichgesetzesblatt I, p. 726 and the report of
6 April 1924, Reichgesetzesblatt I, p. 646), especially § 43 (voting precautions), which
provides that “in every voting room, the local oicial sets up one or several tables
with certain precautions, so that every person entitled to vote can handle his ballot
unobserved and lay it in the envelope.”
hat the logically consistent execution of the secret election is not democratic,
because it removes the individual state citizen from the public sphere and transforms him into a private man, also stems from the public law quality of this “secret.”
Considered in public law terms, the current electoral and voting secrecy is not a
genuine secret at all. According to their discretion, the voters can decide whether to
disclose and make this secret public; its preservation is only a right, not a duty of the
state citizen. he individual can, indeed, forgo the administrative-technical apparatus, which protects electoral secrecy (on this, see Martin Drath, Das Wahlprüfungsrecht bei der Reichstagwahl, Berlin 1927, pp. 69f.), but only because the execution
of the statutory provisions on electoral secrecy is an oicial matter and not an individual one. Moreover, no one prevents him from communicating how he selected
and voted, and it is entirely his private business what meaning he attaches to this
secret act. A comparison with a civil servant’s oicial secrecy shows the great public
law diference between both these types of secrecy. hat is all the more noticeable
when according to the democratic understanding the electing or voting state citizen
engages in a public function and is not a private person. Under the current regulation of the methods for secret individual votes, however, he transforms himself
precisely at the decisive moment into a private man. he electoral secret is the point
at which this transformation occurs and the reshaping of democracy into the liberal
protection of the private takes place. Herein lies perhaps one of the arcana of the
modern bourgeois democracy.
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he People and the Constitution
3. According to these discussions of the connection between the people
and the public, it appears justiied that democracy is designated as the rule
of public opinion, “government by public opinion.” No public opinion can
arise by way of secret individual ballot and through the adding up of the
opinions of isolated private people. All these registration methods are only
means of assistance, and as such they are useful and valuable. But in no
way do they fully encompass public opinion. Public opinion is the modern
type of acclamation. It is perhaps a difuse type, and its problem is resolved
neither sociologically nor [247] in terms of public law. However, its essence
and political signiicance lie in the fact that it can be understood as acclamation. here is no democracy and no state without public opinion, as
there is no state without acclamation. Public opinion arises and exists in
an “unorganized” form. Precisely like acclamation, it would be deprived of
its nature if it became a type of oicial function. his is not to say that it
arises in a secret manner out of nothing. It is inluenced and even made by
parties or groups. Nevertheless, that can never be recognized legally and
made oicial, and, in some sense, it remains uncontrolled. In every democracy, there are parties, speakers, and demagogues, from the προτάται of the
Athenians up to the bosses in American democracy. Moreover, there are
the press, ilm, and other methods of psycho-technical handling of great
masses of people. All that escapes a comprehensive set of norms. he danger always exists that invisible and irresponsible social powers direct public
opinion and the will of the people. But the answer to the problem also lies in
the essential presupposition of every democracy. he danger is not great as
long as there is a substantive democratic similarity among the people, and
as long as the people have political consciousness that can distinguish between friend and enemy. If the substantive prerequisites of democracy are
displaced, no organization or statutory norm serves as a remedy. Nothing
would be achieved, if one wanted to eliminate the diiculties and dysfunctions of current party life, by recognizing, beyond the technical functions of
election and voting, the parties as legal organizations and turning them into
authorities. hen other parties would simply have to form, for the essence
of the party remains outside of every magistracy organization. here is no
democracy without parties, but only because there is no democracy without public opinion and without the people that are always present as the
people. Just as a party cannot transform itself into an oicial organ without
losing its party character, so public opinion cannot permit its transformation into an oicial jurisdiction, in particular because even the people cannot allow itself to be transformed into an oicial body without ceasing to
be the people. he current superiority of the party organizations in contrast
to parliament rests on the fact that these party organizations correspond
he People and the Constitution
275
to the democratic principle of identity insofar as they, like the people, are
always present and at hand [248] without representing, while the parliament is meaningful only in the act of representation. Parliament, however,
has actually lost its representative character (below p. 319). A genuine identity (itself a mere part of the people) is naturally superior to representation
that is not genuine.
he Weimar Constitution recognizes no parties. It mentions the word only once
in a disapproving sense in Art. 130, which reads: “Public oicials are servants of the
collective, not of a party.” And through the civil service a distinctive element of the
civil servant state is built into the Constitution and is secured by an institutional
guarantee. Parties (factions) are not recognized in the Constitution. Instead, they
are recognized in the house rules of parliamentary democracies like the by-laws
for the German Reichstag of 12 December 1922 (Reichgesetzesblatt 1923, II, p. 101):
the Reichstag president, among others, is informed of the formation of the faction.
Fifteen is the number stipulated for the formation of the faction. he legislative initiative is conceived as that of a faction “from the membership of the Reichstag”
(Art. 68), because ifteen signatures is part of this initiative (§ 49 of the by-laws of
1922). he legislative initiative of the Reichstag transforms itself in this way into
the legislative initiative of a faction. Nevertheless, this is not to say that beyond the
realm of the by-laws, the factions or parties would have become an essential constitutional component of the Reichstag and, consequently, the party or faction activity
of the individual deputy must be counted as part of the “exercise of his profession”
as deputy. hat would be an interpretation that makes the deputy into a party or
faction bureaucrat and the party or faction into an oicially recognized formation,
an organization of oicials, though it is not one in essence. Consequently, the immunity (freedom from responsibility) of Art. 36 cannot be extended to this party
and faction activity or to the statements in faction meetings. More accurately, the
boundaries of the previously mentioned freedom from responsibility lie precisely
where the President’s executive authority inds its boundary (for a difering view, see
Anschütz, Kommentar, p. 145; a correct understanding is in W. Troitzsch, Rechtsplege und Immunität der Abgeordneten, Rostock 1927, p. 84). On the electoral law
recognition of the parties, see H. Triepel, Die Staatsverfassung und die politischen
Parteien (Berliner Universitätsrede, 1927), p. 20, who argues that “electoral laws still
sometimes shamelessly mischaracterize parties as ‘electoral associations’ or ‘voters’
groups.’ Mostly, however, parties appear on the scene already plainly identiied,
occasionally even in the constitution, as in hüringen. he disguise has indeed become thoroughly senseless. For the entire system bases itself on the fact that organized parties struggle mightily for electoral victories.” On the recognition of party
groups in France, see Barthélemy-Duez, Droit constitutionnel, 1926, p. 444; consult
O. Koellreutter, Die politischen Parteien im modernen Staat, especially p. 62f., on
the problem generally.
Despite its incomprehensibility and resistance to organization, public
opinion since the eighteenth century is known and treated in the political
and state theory literature as a special factor in state life. he philosophers
of the eighteenth-century Enlightenment were supporters of an enlightened despotism, but in an enlightened public opinion they discerned the
control of all state activity and a secure guarantee against any misuse of
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he People and the Constitution
state power. Freedom of expression of opinion [249] and freedom of the
press became political institutions. As such, they retain the character of
political rights, and they are no longer the result of the individualistic freedom of conscience and religion, as they are in the American context. he
use of press freedom and freedom of expression of political opinion is not
only engagement inside the private sphere of freedom. It is also public activity, the exercise of a certain public function that constitutes public control.
In his book on the English constitution (1771), De Lolme speaks of the fact that
the people exercise their special authority through public opinion, the “power of
censure” (II, chap. 12). In the liberal demands of the nineteenth century, the idea of
a liberal freedom combines with this democratic idea, above all in the epoch of liberalism when the idea’s actual public law constructions arose, in particular between
1815 and 1848. Benjamin Constant understands parliament (the popular assembly) as
“representation of public opinion.” Chateaubriand writes in his famous expositions
on the freedom of the press (Mélanges pp. 238, 247) that even the ministry must derive its authority from public opinion. his is the principle and source—principium
et fons—of the ministry in a constitutional monarchy. his understanding of public
opinion is not as prominent in Germany. Nevertheless, the pithy, though “doubleedged,” expression of Hegel deserves mention, according to which everything is
simultaneously true and false in public opinion. Critique generally predominates in
nineteenth-century Germany. Characteristic of this tendency is the essay by Lothar
Bucher of the year 1854, “Der Parlamentarismus, wie er ist,” 2nd ed., 1881, which
is celebrated by Hasbach precisely because of its arguments on the value of public
opinion. In the twentieth century, works that thoroughly treat public opinion as a
sociological and political theme, the property of the concept of the public and its
connection with the present, genuinely assembled people, precisely, therefore, the
political, do not clearly legitimate it. hat is so even for the work of F. Tönnies, Kritik
der öfentlichen Meinung, Berlin 1922, which otherwise is the most important sociological investigation on this theme.
James Bryce thoroughly treated the special connection of democracy and public
opinion in chapters 76–86, vol. III, of his American Commonwealth. he reign of
public opinion is true democracy for him. he methods of its determination are still
uncertain, and it is often something secret and available only in politically engaged
and homogenous peoples. It is often said that in the Anglo-Saxon peoples, in contrast to many other democracies, a true public opinion exists. Dicey, Law and public
opinion in England (1905), celebrated England precisely for the indirect and irm
connection of legislation and public opinion, which inds a parallel nowhere else.
Nevertheless, a lively critique began a few years ago even in the writings of AngloSaxon authors, for example, the interesting book by Lawrence Lowell, Public opinion
and popular government, 1st ed., 1913, 4th ed., 1921. he question is whether public
opinion can continue to exist as a uniied force when a concept like “class” seriously
competes with the concept of people and endangers homogeneity. For the bearer
of public opinion, which always remains something mystical, though not, for this
reason, less important, loses its essence and becomes problematic. Previously, one
could speak of the “common man” (the man on the street [Schmitt’s English]). As
soon as this man becomes a class-conscious proletarian, he changes his nature. he
same is true of the other types of this idea world, the “simple [250] worker,” “Jacques
he People and the Constitution
277
Bonhomme,” etc. Incidentally, such igures are easily lent a romanticized bucolic
quality. hey are thus rendered nonpolitical and, consequently, are deprived of their
democratic character. So it is in the essay by Arthur Feiler, Frankfurter Zeitung of
23 June 1927 (“Die Völker und die Staatsmänner”), which states that “peoples everywhere want nothing else from life than simply this, a little sun, a little nature,” etc.
Such a bearer of public opinion is, of course, essentially a private man and, in regard to political questions, only wishes to have nothing to do with politics. his is
certainly an upstanding and appealing wish, one, however, whose fulillment unfortunately does not remove politics from the world and does not answer any political
question.
he incomprehensibility and resistance to organization of such democratic ideas about public opinion reveals itself in the fact that constitutional
regulation uses concepts through whose nonjuridical indeterminacy one
intends to intentionally avoid a precise, normative determination. hus
Art. 54 states that “the Reich Chancellor and the Reich minister require the
conidence of the Reichstag for the conduct of their oice.” Art. 57 of the
Prussian constitution of 1920 says, moreover, that the government must
have the conidence of the people. Indeed, otherwise legal institutions and
procedures cannot constantly organize and comprehend public opinion.
However, they can certainly serve to bring it to expression, to validate it,
and, beyond its oicial content, to create an indicator of public opinion.
he result of an election or popular vote, together with its indirect substantive meaning—selection of a deputy or answer to a proposed question—still
only has this additional meaning, which is certainly strongly diminished
through the method of secret ballots, of the dependence on the proposed
candidate lists, and on the manner of posing questions. he situation can
develop such that public opinion can inally still only express itself through
abstention from an election or vote. Legal methods can always only single
out a particular factor. It is, in any case, part of the essence of a genuine
democracy that the results of elections and popular votes are faithfully regarded as indicators of public opinion. Only occasionally, and especially
against obvious injustice and under the impression of political corruption,
does it come down to unanimous expressions of the people’s will, which,
as such, are unmistakable and have the character of a genuine acclamation.
An example in this regard was the protest of the German people against
the surrendering of the so-called war criminals in the year 1920. In some
cases, constitutional methods prevent acclamation. hus, in the vote of the
German people on the expropriation of the property [251] of the former
ruling royal families in June 1926, it is easily understandable that an acclamation did not occur, because the provision of Art. 75 made it possible and
even advisable for the opponents of expropriation to stay at home (above
p. 241). In the English practice, there are indicators of public opinion that
are both acknowledged and loyally followed, such as the results of special
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he People and the Constitution
elections, new elections, and large local elections. As a result of the list system of proportional representation, special elections and new elections do
not take place in the German Reich, so that this important potential means
of regulation does not apply. Land parliamentary elections in smaller Lands
and local elections can ofer no substitute for this regulatory possibility.
he most important public law consequence of the review of public opinion in question involves the legal mechanism for parliamentary dissolution,
through which this institution receives the character of a normal institution. It loses the extraordinary quality, the connection with ideas of conlict
or, indeed, coup d’état, as it is still recalled from the undemocratic times of
the constitutional monarchy. Whether the dissolution is viewed as something abnormal or not is a determinative factor in the positive-law interpretation of a constitutional provision like Art. 25 (Reichstag dissolution by the
President).
IV. Overview of the meanings of the word “people” for a modern constitutional theory.
1. People as unformed, nonconstitutional entity.
(a) People as subject of the constitution-making power (pp. 77, 238);
(b) People as bearer of public opinion and subject of acclamations
(p. 242);
(c) People as those who do not rule or are not oicials (in the combination “popular demand,” p. 241).
2. People as constitutionally formed and organized entity, in which it
is noteworthy that the people are actually not formed and organized, but
rather there is only a procedure of election or voting and the will of the
people comes into being only as result of a system of validations or, indeed,
ictions (p. 239). hen people = simple or qualiied majority of the voters
casting ballots or those entitled to vote.
he other meanings of the word “people” (people = population, people = all
state members, people = nation = state) need not be discussed. [252] Joseph Held
enumerates nine meanings of the term in System des Verfassungsrechts, Würzburg
1856, I, p. 109f. he interesting thing about his enumeration (in contrast to other attempts, for example, Hans Liermann, Das deutsche Volk als Rechtsbegrif im Reichsstaatsrecht der Gegenwart (Berlin and Bonn 1927) is that Held recognizes the distinctive sense of the word, which lies in the negative: among the people belong those
who are not ruling and are not oicials or magistrates, etc. (above p. 241).
he People and the Constitution
279
§ 19.
Consequences of the Political Principle of Democracy
I. General tendencies explained by the aspiration for democratic identity.
1. Greatest possible number of those entitled to vote and to stand for
election, reduction of the voting age, women’s right to vote and stand for
election.
2. Deinitiveness attained when those voting constitute the largest possible majority, in other words, when those voting approach the ideal of
unanimity. his idea about the normative character of majorities, however, contains a misunderstanding, and it is possible principally because
the methods of liberal individualism, in particular of the secret individual
ballot and (since Condorcet) the mathematical orientation toward the mere
tabulation of voting results, which is a purely quantitative, arithmetic idea,
has obscured the distinctly political concept of democracy.
his certainly also accounts for Kelsen’s view (Wesen und Wert der Demokratie,
1920), for whom the justice of democracy rests on the fact that it is more just when
out of one hundred persons ninety rule over ten than if ten rule over ninety. he political sense of democracy is displaced entirely here. he question of the substance of
democratic equality is no longer posed. In Rousseau, by contrast, the consciousness
of this diference is still very strong. He still knows that it is in no way democratic, if
ninety corrupt persons rule over ten honorable persons and that even the unanimity
of all decisions is useless if the substance of democracy, which is vertu for Rousseau,
is displaced. Even in unanimity, the will of one hundred slavish persons does not
produce a free will, while a nonpolitical will of one thousand politically indiferent
persons in combination produces no political will in terms of justice.
3. he greatest possible extension of the methods of direct election to the
selection of magistrates and oicials and the greatest possible frequency of
repeated elections, quicker electoral turnover, short electoral periods, the
possibility of recall of elected magistrates, easy dissolution of the elected
bodies. On the double meaning of elections, see below p. 257.
4. he greatest possible extension of direct substantive decision by the
state citizens entitled to vote (popular vote). [253]
II. he state citizen in democracy.
1. he concept of state citizen is part of the political sphere. he state
citizen in democracy is citoyen, not private man or bourgeois.
he German word “citizen” comprises both meanings, citoyen and bourgeois.
But the opposition of both meanings is as great as the diference between a nonpolitical, ethical-economic liberalism and democracy that is a pure political concept. Hegel’s early writing on the scholarly approaches to natural law (Lasson edition, 1802, p. 383) is the irst and most important expression of the bourgeois as a
concept contrary to the state citizen existing in the political sphere. “he potency of
this estate (of the bourgeois),” he writes, “establishes itself such that the estate main-
tains itself generally in property holdings and in the justice that is possible regarding property, and such that . . . any individual, since he himself is capable of holding
property, comports himself in the bourgeois manner, generally or as citizen. Peace
and the ability to make acquisitions, along with the complete security of their enjoyment, compensate for the political insigniicance stemming from estate members
being private persons, insofar as those rewards are accorded to the individual as well
as to the entirety. However, that the danger for the individual is the absolute uncertainty of all enjoyment, property, and right is deduced from the fact that the security
of each individual has tended to beneit the collective insofar as the individual is
proud of the bravery and of the necessity that is part of belonging to the irst estate
(the free and noble, whose occupation is the πολιτεύειν), in particular, that of exposing themselves to the risk of a violent death.” Another quotation of Fichte deserves
mention in order to show the deep connection of these principles with the German
philosophy of the post-Kantian generation. “Humanity divides itself into two basic
clans,” according to Fichte, “the propertied and the nonpropertied.” he irst are
not the state, yet they preserve the state, “and the latter is in fact its servant. he
propertied are thoroughly indiferent as to who protects them, if they are only being
protected; the only goal is to receive protection as cheaply as possible. To those with
property, the state is a necessary evil, and one must make every evil as limited as
possible” (Staatslehre, 1813, Werke IV, p. 404). he judgment Lorenz von Stein rendered on the bourgeoisie (below p. 309) is also rooted in such ideas. If in his valuable
book on Hegel’s idea of the state (Philosophische Forschungen, ed. K. Jaspers, vol. 4,
Berlin 1927, p. 127) J. Loewenstein inds the root of the socialist movement in Germany in the critique of the culture and time period (not in the social misery of the
masses, and still less in the economic problem of goods production or distribution),
then I agree with him, though with this qualiication from the side of political consciousness, which recognizes its enemy in the bourgeois.
2. General equality before the law, in other words, the elimination and
prohibition of all privileges in favor of or to the disadvantage of individual
state citizens or certain classes and estates. Such privileges may also not be
introduced by statute; not even a “constitution-amending” one could justify
them. Herein lies the fundamental meaning of the principle that all state
citizens are equal before the law (Art. 109). In particular, that means the
following.
(a) Equality of political status. Equal participation of all state citizens in
elections and votes, so far as they afect the [254] entire state, is an equal
electoral and voting right. he additional subtypes and methods of this
electoral right, direct right to election, system of proportional elections,
and electoral secrecy, are not the result of democratic principles; other considerations account for them. Among these criteria are partly justice generally and partly justice in the sense of liberal individualism.
(b) he voting and electoral right is not a right in the sense that it would
stand at the free disposal of the individual (as does electoral secrecy, whose
heterogeneity reveals itself especially in this opposition). However, it is also
not a mere “relex” of constitutional law. It is, rather, a public function, and,
in terms of logical consistency, it is equally an electoral and voting duty behe Political Principle of Democracy
281
cause it is exercised not by the individual as private man but as state citizen,
thus by virtue of a public law status. Nevertheless, most democratic states
do not give efect to the logic of obligatory electoral participation and voting in their electoral laws.
Example of the electoral duty is the Belgian constitution, Art. 48, 2 (according
to the constitutional revision of 1893), which stipulates that “le vote est obligatoire.”
he fulillment of this duty is not ensured by criminal sanctions. On this, cf. Errera,
Das Staatsrecht des Königreichs Belgien, p. 99. Additional examples are EsmeinNézard, I, p. 367 and W. Hasbach, Die moderne Demokratie, p. 329. For literature on
the subject, see Stier-Somlo, Grundriss, I, p. 546.
(c) Equal, universal, compulsory military service, more precisely, the
right and the duty of every state citizen, in accordance with the degree of
his ability to defend militarily the state and its order internally and externally. here is a genuine democracy without a general right to election to
the same limited degree that there is a genuine democracy without general compulsory military service. Hence Art. 133 (“he compulsory military
service is guided by the provisions of the Reich Defense Law”) guarantees
an essential principle, for it preserves the possibility that every German
is obligated to serve according to the standards of the law. According to
Art. 178, 2, however, the provisions of the Versailles Treaty have precedence
(in whose provisions Art. 173’s universal, compulsory military service in
Germany is eliminated). he implementation of this democratic institution
is prevented. Nonetheless, this international law treaty provision, as presented above (p. 72), does not change the German constitution.
(d) Equal duty to voluntary activity and to personal services (Art. 132,
133).
(e) Equal tax and expenditure obligation. “All state citizens without distinction contribute to all public burdens in proportion to their means in
accordance with statutes,” according to Art. 134. [255]
(f ) No limitations on eligibility for oice and no incompatibilities. Because
of the equality of all state citizens before the law in a democracy, individual
groups of state citizens cannot logically be excluded from access to certain
oices, functions, and especially not from eligibility for election. Also, a
parliamentary incompatibility in the genuine sense (to distinguish it from
ineligibility) is not permissible, for it means that certain state citizens are,
indeed, eligible for election, but if they are elected, they must give up their
previous post, activity, or mandate. Yet to the extent that a special status is
recognized inside of the general status of state citizen, as among the members of the soldiers’ estate, limitations on the eligibility for election and incompatibilities are possible. he same must also be valid for civil servants,
because even they have a special status, although, as shown above on p. 181,
the sense for this logical consequence appears to be absent in Germany. In a
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he Political Principle of Democracy
democracy, on the contrary, it may hardly be possible to establish so-called
economic incompatibilities legally and to provide for members of certain
economic professions, bankers, syndicates, etc. that they cannot simultaneously be deputies, as that is attempted today in several states, in order
to implement a social and economic independence for the deputy and to
render signiicant again the constitutional “independence” of the deputies
(Art. 21). Apart from the practical diiculties of such an experiment and
of the many possibilities for an evasion, the theoretical diiculty lies above
all in the fact that a statute that mandates such economic incompatibilities
would infringe on democratic equality.
On the great doubts that the establishment of economic incompatibilities faces
in a democracy, see J. Barthélemy, Revue du droit public, vol. 1922, p. 125f. Until
now, the only scholarly treatment of this important question in the German literature is found in the aforementioned Bonn dissertation of Werner Weber, 1928.
3. According to democratic principles, equality in private law is dominant only in the sense that the same private law statutes are valid for everyone, not, on the contrary, in the sense of economic equality of private wealth,
property, or income. In its consequences and applications, democracy as an
essentially political concept involves, to begin with, only the public law.
However, [256] the superiority of the public over the private results unconditionally from democracy’s essentially political character. As soon as
political equality is destroyed or endangered by economic inequalities or
by the social power of private property, it can became politically necessary
to eliminate, by statute or measure, that type of disturbance or threat. In
regard to this necessity, appealing to the sanctity of private property would
be undemocratic. Still, such an appeal would be in accord with the principles of the bourgeois Rechtsstaat, whose sense lies precisely in hindering
the logical consequences of a political principle, as with democracy, and to
transform democracy into a constitutional democracy, which is limited by
constitutional law.
III. Oicials (democratic methods for the selection of oicials and civil
servants).
1. Equality of all state citizens in terms of equal access to all oices.
To the extent that there is the necessity of a substantive qualiication and
that a certain professional training or technical education is unavoidable,
equality is present only under the presupposition of equal capability (Art.
128). For the required examinations that determine the professional training and technical education, no class or status-based privileges may exist,
nor may inequalities be introduced even through a numerus clausus provision or concealed in some other way. Equal access to oices also takes
from the professional civil service the character of an undemocratic institution. Nevertheless, the elaboration of a civil servant hierarchy could lead
he Political Principle of Democracy
283
to a contradiction with the democratic equality of state citizens and to an
impermissible estate formation, if the highest oices in this civil servant
hierarchy are exclusively a product of the professional civil service itself.
On the contrary, there is no contradiction if commissioners, who are recallable and do not have civil service status, assume the highest oices. his
applies whether or not they are only expert ministers. he essential thing
for a democracy is that the leading activity of the government remains dependent on the will and trust of the people. he institutional guarantees of
the Weimar Constitution (Art. 129, 130), which constitutionally protect the
professional civil service (above p. 181), are thus thoroughly reconcilable
with democratic principles. [257]
2. Selection of individual leaders, civil servants, or functionaries.
(a) By lot.
Equality is best guaranteed during selection by lot, and certainly the possibility
of a distinction according to substantive capacity is also excluded. his method has
become impractical today. It came into use in especially broad scope in the Athenian democracy. Plato (Politeia, Apelt edition, p. 313), indeed, sees here a deinition
of democracy: “Democracy arises when the poor achieve victory, execute a part of
the opponents of democracy, ban another part, share with the remainder, however,
the administration of the state and of the individual lands in complete equality, and
permit the predominant part of the ruling authority to be selected by lot.” Fustel de
Coulanges, La cité antique, is of the opinion that the selection of civil servants by lot
is not based on the idea of democratic equality. Instead, a religious motive underlies
it. But even Aristotle, he Constitution of Athens, 22, 5, considers the selection by lot
to be the democratic method in contrast to the selection by election, which he views
as an aristocratic one.
(b) By election. In comparison to the selection by lot, that by election,
as Plato and Aristotle correctly say, is an aristocratic method. But it can
appear as something democratic in comparison with the appointment by a
higher organ or, indeed, to a selection by way of hereditary succession. In
the election, both possibilities are present. he election can have the aristocratic sense of a separating out of the better and of the leaders or the
democratic sense of a procurement of an agent, commissioner, or servant.
In contrast to the elected, the electors can appear as the subordinated or
as the superior party. he election can serve as a means of the principle of
representation as well as of identity (above p. 219). In the nineteenth century, because of the opposition to the hereditary succession of the monarchy or to the membership in an upper house or house of lords, the election
is seen as the democratic method. his also accounts for the fact that even
today democracy is still deined as a state formation that rests on the general electoral right (thus R. homa’s deinition, above 218). However, one
must distinguish what sense the election in reality has. If it should justify a
genuine representation, it serves as the means of an aristocratic principle; if
it signiies only the designation of an instructed delegate, one can view it as
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he Political Principle of Democracy
a distinctly democratic method. On the so-called representative democracy
resting on the election, see above p. 218. he democratic logic leads to the
elimination of the election and to the specialized vote by the people in its
momentarily present identity.
(c) Appointment of the civil servant or functionary by a higher authority
counts mostly as an undemocratic method. If it is unavoidable because of
the requirements of an expertly led and technically [258] ordered operation
and because of the principles of the professional civil service, there emerge
diferent additional methods that should modify and correct these authoritarian methods in a democratic sense, for example, dependence of the highest oices of every department, in particular, the minister, on the conidence
of the people or the popular assembly. here is, moreover, the improvement
of the appointment system through the recruitment of laypersons serving
in honorary, oicial capacities, such as lay judges and juries and laypersons
in administrative committees and administrative courts. he participation
of laypersons signiies a participation of the people, where people has the
negative sense developed above, that to the people belong above all those
who are not professional civil servants.
When Rudolf Gneist, in his famous interpretation of self-government (Selfgovernment, Kommunalverfassung und Verwaltungsgericht in England, 3rd ed., 1871),
set self-government as honorary oicial service in opposition to that by professional
civil servants, he meant it in a liberal, not democratic, sense. he propertied and
educated classes should be installed in the honorary oices so that an integration
of the society into the state can be efected. However, it is actually not the people as
such that should be participating in the administration of the state through this recruitment to honorary oices. Instead, the bourgeois Rechtsstaat should be secured.
For Gneist, the honorary oice is the “Archimedean point of the Rechtsstaat.”
he Political Principle of Democracy
285
§ 20.
Application of the Political Principle of Democracy
to Individual Areas of State Life
I. Democracy and legislation.
1. he democratic concept of law is a political, not a Rechtsstaat-based,
concept of law. It stems from the potestas of the people and means that
law is everything that the people intends: lex est quod populus jussit. On
this, cf. above § 13, p. 146. here are no limitations on this will stemming
from democratic principles. Injustices and even inequalities are possible.
One could deny inequality only insofar as one understands equality in an
absolute sense that all are subordinated to this will in the same way, which
is something that is also the case in the absolute monarchy. Initially, the
Rechtsstaat-based concept of law, which transforms democracy into a constitutional democracy, makes possible guarantees against injustices and inequalities. It also facilitates the distinction between statutes [259] and other
state acts. For in the absolute democracy the will of the people is sovereign
and not only highest law; it is also the highest judicial decision or act of the
highest administrative oicials etc.
2. Legislative process of the direct democracy. he statutory decision
is made by the participation of all state citizens entitled to vote. here are
diferent degrees and scope of participatory immediacy, so one can distinguish among diferent types of the legislative process of direct democracy.
(a) Popular legislative process in the actual sense. In other words, the
legislative process is set in motion by a popular initiative, and the statutory
decision comes about through a popular vote. his popular legislative process is distinguished by the fact that state oicials and the popular assembly
do not participate in it or participate only as a supplementary organ.
Art. 73, 3, establishes a genuine popular legislative procedure. It is, in other
words, a referendum brought about by a popular initiative. Nevertheless, the
Weimar Constitution provides for a deviation from the established legislative process for this popular legislative procedure. Speciically, the draft statute, proposed
by way of popular initiative, is initially presented by the Reich government to the
Reichstag for inal passage, and the referendum by way of popular initiative does
not take place if the Reichstag accepts the desired law unchanged. he other possibilities for a referendum that are provided constitutionally, but are not part of the
popular legislative procedure, are unaltered in regard to this statutory decision of
the Reichstag. Even in this case, the President can order a referendum under Art. 73,
1. A popular decision in the form of a referendum following a minority veto of the
Reichstag is possible under Art. 73, 2, etc. If, however, the Reichstag does not accept
the draft statute proposed via a popular initiative, a referendum must be held, and
this referendum now is a popular decision in response to an initiative. Despite the
aforementioned diversion into the established legislative process by Reichstag decision (Art. 68), there is a genuine popular legislative procedure, even if it is limited
and derivative.
As a routine legislative procedure, this popular legislative process is practically
impossible in a modern state. In the contemporary Rechtsstaat under the democratic constitution, hence under constitutional democracy, the popular legislative
process is also theoretically possible as an extraordinary procedure, because constitutional democracy rests on the fact that the consequences of pure democracy
are modiied and legislated jurisdictions take the place of the direct and absolute
people’s will. he people, however, can exercise no established jurisdictions without ceasing to be the people. So even the statute that comes about via a popular
legislative procedure is law in the constitutional rule sense. hat is to say, it is the
exercise of a legislative jurisdiction, and not, for example, an act of the constitutionmaking power of the people. his means the bourgeois Rechtsstaat concept of law
is presupposed in the constitutional provisions on popular initiatives and referendums (§, p. 138), and an initiative is permissible only for a law in this sense, not
for [260] any given acts of sovereignty. Nevertheless, precisely in this respect the
characteristic value (above § 18, p. 250) of such procedures validates itself especially
strongly. A statute that comes about via the popular legislative process with a large
or overwhelming majority has found the acclamation of the people. As such, it can
represent a genuine act of sovereignty, and, drawing on the strength of the political,
it ruptures the norm of Rechtsstaat legality.
(b) Statutory decision by popular vote on the initiative of the government.
In modern democracy, it is a rare procedure where the government dependent
on the conidence of the people proposes that a statute go directly to a popular
vote without involvement of a popular assembly as legislative body. he Weimar
Constitution does not recognize this procedure at all. In pure democracy, in which
magistrate and actually assembled people stand opposite one another, it is the routine legislative process. According to Roman public law, for example, the magistrate poses the question in the popular assembly (vos rogo, quirites), to which yes
(uti rogas) or no is answered. On this, see Mommsen, Römisches Staatsrecht, III, 1,
1887, p. 304, who argues that “the citizenry as well as the individual citizen, therefore, completely lack the initiative; they can only answer, not themselves propose
the question to the magistrate of whether he is in agreement with this or that. Also,
with this procedure, there is practically no getting beyond the simple yes or no or
the appointment of certain persons; to ask the citizen, not whether he does or does
not intend this, but rather what he intends is certainly legally permitted, yet only
executable in exceptional cases” (cf. below p. 277).
(c) Referendum in the actual sense is a popular vote on the conirmation or nonconirmation of a decision of the legislative body. he expression “referendum” is reserved to this case in a purposeful way, in which a
decision of the popular assembly is presented to the state citizens entitled
to vote for a conclusive decision. It is not advisable to designate indiscriminately all cases of the popular vote (initiatives, plebiscites, etc.) as a referendum without distinction. It is more accurate to say that the concept of
referendum includes the decision on the conirmation of an action.
Application of the Political Principle
287
Cases of referendum:
(aa) General obligatory referendum.
In this procedure, a statute comes about through inal passage of an advisory
body that prepares the draft and through conirmation of this decision by those
entitled to vote.
For practical reasons, this procedure is rare. Even where it is recognized as the
democratic method, which is in principle an important and logically consistent one,
as it is in the Jacobin constitution of 1793, for practical reasons it must be made
dependent on some initiative. For otherwise airmation is falsely attributed to the
citizens entitled to vote, if this initiative does not occur. hus, Art. 59 of the constitution of 1793 provides that if forty days after the distribution of the draft statute
to all localities a tenth of the primary voter assemblies in no more than half of the
departments have raised no objection (réclamation), the draft is deemed accepted
and becomes law. [261]
(bb) Obligatory referendum for special types of law, in particular for constitutional revisions; moreover, facultative referendum.
See, for example, the Swiss federal constitution of 29 May 1874, obligatory referendum for constitutional laws, Art. 123, according to which “the revised federal
constitution, in relation to the revised part of the same, enters into force when it is
accepted by a majority of the cantons.” By contrast, for simple statutes, there is only
a facultative referendum, such as Art. 89, 2, providing that “federal laws as well as
generally binding federal decisions that are not of a pressing nature should additionally (speciically beyond the required consent of both councils, National Council
and Estate Council) be presented to the people for acceptance or rejection, if it is
demanded by 30,000 Swiss citizens entitled to vote or by eight cantons.” he exact
stipulation applies to state treaties concluded with foreign countries according to
section 3, whether they are unlimited in duration or for a duration of more than
ifteen years (section 3 accepted on the basis of an initiative in the popular vote of
30 January 1921).
(cc) Facultative referendum.
In this regard, the question is raised as to on whom is conferred the referendum
initiative. Under consideration here is the legislative body itself, which has an interest in submitting its decision to the consent of the enfranchised voters, the government, the state president, a minority of the legislative body, and a part of the state
citizens entitled to vote (this last case contains an initiative calling for a referendum
in contrast to that discussed under (a), an initiative introducing a popular legislative
procedure). In federal states even the individual Lands or cantons (cf. the example
of the Swiss federal constitution under [bb]) are a possibility.
he Weimar Constitution recognizes the following possibilities of a referendum
initiative: referendum on the order of the President (Art. 73, 1 and 3); referendum
at the request of a twentieth of those entitled to vote in regard to a statute, the promulgation of which is interrupted on petition of at least a third of the Reichstag;
Art. 73, 2; referendum on demand of the Reichsrat, if the Reichstag concluded a
constitution-amending statute against the objection of the Reichsrat (Art. 76, 2).
he President’s authority to order a referendum includes both the general authority
to order one against any statute concluded by the Reichstag according to Art. 73,
1, as well as the special authority to order one resolving diferences of opinion between the Reichstag and Reichsrat. hus, the statute on the referendum of 27 June
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1921 (Reichgesetzesblatt, p. 790) enumerates ive cases of referendum, among which
is a referendum in response to an initiative. To this, however, is added a sixth case
through § 3 of this (constitution-amending) statute, which provides that if a referendum in response to an initiative takes place, it is not only the desired statute, but
also one concluded by the Reichstag that diverges from the popular will, that is the
object of the initiative.
(d) Limitations and exceptions. In some democratic constitutions, certain matters are excluded from consideration in referendums, or the ordering of a referendum is restricted in some way.
According to Art. 73, 4, only the President can call for a referendum on the budgetary plan, on spending laws, and on compensation orders. his limitation must
be valid for all monetary statutes. On this, [262] see Carl Schmitt, Volksentscheid
und Volksbegehren, 1927, p. 14f.; on the constitutional limitations of the individual
Lands, see esp. p. 15. On the question of the limitations of the popular initiative, see
below 4c, p. 264. Limitation through declaration of pressing need, Art. 72, 73, cf.
p. 278.
3. Establishment of the law through decision of a popular assembly
elected by the state citizens, whose will is valid as that of the entire people
(Art. 21, 68, 2). In this instance, the principle of representation takes the
place of the principle of identity. he consultation and participation of
those entitled to vote can occur only indirectly.
(a) he so-called imperative mandate, speciically, the deputy’s dependence on the instructions and directions of the voters, would, indeed, eliminate the representative character of the popular assembly, and yet it would
not be an appropriate means for the execution of the democratic principle.
For it would also contradict the political idea of democracy itself. Because
of this dependence on the transitory will of his voters, and not on the will of
the entire people, the deputy would be dependent on a part of those entitled
to vote. he additional necessary consequence of this imperative mandate
would be the introduction of a special procedure of continuous voting in
every electoral district or, under the proportional system of representation
with party lists, throughout the entire Land. hen, indeed, voting would be
continuous, but not by the people as a unity. It is also revealed here that the
people cannot be represented, as Rousseau rightly emphasized. he people
are either entirely present and engaged or generally not involved, and in
this case the people are not represented. Instead, the political unity as a
whole is. he idea of representation contradicts the democratic principle of
self-identity of the people present as a political unity. An imperative mandate of the medieval style, however, which involves dependence of a deputy
on instructions and directions by an estate, other types of organization, or
by parties, contradicts the idea of political unity as well as the fundamental
presupposition of democracy, in particular of the substantive homogeneity
of a people, whose natural and political unity is considered identical.
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289
(b) It is possible to inluence and consider the direct will of those entitled
to vote in such a way that the dissolution of this legislative body is made a
normal component of the state organization, [263] if an established legislative organ is a representative body and is thus independent of directions.
he dissolution can be brought about by the following:
(aa) through an order of the head of state, the chief executive in the
Rechtsstaat that distinguishes among powers. Hence Art. 25 provides that
“the President can dissolve the Reichstag.” he monarchical right of dissolution is formed diferently and does not come into consideration here
(below p. 353).
(bb) through a decision of the ministry (otherwise dependent on the
conidence of the body to be dissolved). hus the English practice formally
takes the form of a dissolution order of the head of state, in this case by
royal decree. he Oldenburg Constitution of 17 June 1919, § 55 (dissolution
of the individual Land parliament), recognizes a formal right of dissolution
of the government.
(cc) by referendum on demand of a part of state citizens entitled to vote,
therefore, an initiative for dissolution of the popular assembly by referendum. hus numerous German Land constitutions, for example, the Prussian constitution of 30 November 1920, Art. 6 and 14. Additional examples
in O. Koellreutter, Das parlamentarische System in den deutschen Landesverfassungen, Tübingen 1921, p. 7, n. 2.
(dd) self-dissolution by the popular assembly’s own decision. Note several German Land constitutions, such as Prussian constitution Art. 14, for
example. Additional examples are in Koellreutter, Das parlamentarische
System, p. 9.
4. Democratic legislative initiative. Even in a democracy, the legislative
initiative is by nature an afair of the government (above p. 241). Indeed, the
government can share the right of legislative initiative, especially the popular initiative, with other oices, and the legislative body can have a right of
initiative (Art. 68, for example). But there can be no government without the
power of initiative.
(a) he struggle of the popular assembly against the monarchical government led to introducing a legislative initiative by the popular assembly, that
is, by the legislative body itself. Art 68 corresponds to that understanding,
according to which proposed statutes are introduced by the Reich government or from the loor of the Reichstag. In the degree to which the perspective of the [264] struggle against the kingly government is displaced, this
legislative initiative of the popular assembly can be limited again. Earlier,
the individual initiative of every single deputy was restricted by the order of
business or statutorily. hus, according to Art. 68 in combination with § 49
of the order of business of the Reichstag from 12 December 1922, the right
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of initiative is exercised “from the loor of the Reichstag” by only ifteen
deputies (the number of a “faction”). Additionally, however, restrictions resulted for monetary statutes. Here one can recognize a line of restriction
that leads to at least the limitation of the popular assembly’s expenditure
initiative for monetary statutes.
“In the draft budgetary plan,” according to Art. 85, 2, “the Reichstag cannot raise
or reset expenditures without approval of the Reichsrat.” his limitation is valid
not only for the one-time budgetary plan law, but for all monetary laws as well (cf.
above 2d, p. 261). Additional examples are found in Carl Schmitt, Volksentscheid
und Volksbegehren, 1927, pp. 27–29.
(b) he striving for direct participation of enfranchised voters has led to
a so-called popular initiative, which is a legislative initiative from a part of
the state citizens entitled to vote.
his legislative initiative of the people is either
(aa) the initiation of a popular legislative process (above p. 259), per Art. 73, 3;
or
(bb) the setting in motion of an ordinary legislative process that then is directed
toward the legislative body. he Art. 73, 3, rule only seemingly includes this instance
of legislative initiative. In fact, there is a deviation, introduced for practical reasons,
in the ordinary legislative process.
(cc) Referendum initiative (only imprecisely termed “legislative initiative,” cf.
above 2c, p. 260).
(c) Limitations and exceptions. Under democratic constitutions, certain
matters, in particular monetary statutes, are exempted from the popular
initiative. he exception contained in Art. 73, 4 (only the President can order
a popular initiative on the budgetary plan, expenditure laws, and compensation orders) is also valid for an initiative calling for a referendum.
A few individual German Land constitutions exempt certain subjects (especially
inancial questions) from the “popular vote,” therefore from the referendum and
from the initiative. Other subjects are exempted only from the initiative. Cf. the
examples in Carl Schmitt, Volksentscheid und Volksbegehren, p. 15. In any case, the
initiative of the people is so diferent from the referendum that the exceptions of
the one or the other are not directly the same, and, in a democratic state, they do not
speak for the widest possible extension of the popular initiative. [265]
II. Democracy and government.
1. he relationship of an elected representative assembly (parliament) to
the government.
he logic of the democratic principle intends a minimum of representation. he result is that both the parliament (speciically, the elected representative assembly) and the government can be afected, so that irst the
former, then the latter appears subordinated.
(a) he irst possibility is subordination of the government to the parliament.
So long as a parliament is elected by the state citizens and representative “of the people”—in other words, as long as it is truly representative of
Application of the Political Principle
291
the political unity—it stands opposite the king as a second representative.
Demanding the subordination of this royal government to the parliament
appears as a requirement and a logical consequence of democracy. Overall,
that was the situation in Germany during the nineteenth century under
the constitutional monarchy. he requirement of a parliamentary government thus becomes a democratic demand. As a result of such a political
situation, democracy and parliamentary government are rendered equivalent and confused with one another. Compared to the representation of the
political unity through an hereditary monarchy, the representation of the
politically united people through an elected body is by outward appearance
something democratic, and the actual, principled opposition—representation and identity—does not become evident.
In this situation, a series of equivalencies arises. First, the government should be
dependent on the conidence of the parliament, which is to say the popular assembly and, in particular, the people. hen, dependence on the conidence of parliament
and dependence on the conidence of the people are not distinguishable from one
another. As the demand for the establishment of parliamentary government becomes stronger and more intense, so also does the conlation of parliamentary government and democracy. In Germany, this connection revealed itself inally during
the world war, especially since 1916 and 1917, through the parties that demanded the
institution of parliamentary government at the Reich level. Cf. Hasbach, Die parlamentarische Kabinettsregierung, 1919, p. 265, with the many exclamation points of
outrage in quotations from newspaper commentary. In the aforementioned Art. 57
of the 1920 Prussian constitution it says that “the State Ministry as such and every
single state minister needs the conidence of the people for the execution of their
duties, which is expressed by the Land parliament.” he entire manner of thinking,
in fact, presupposes that the government has no direct relation to the citizens entitled to vote and that this relationship is mediated exclusively by parliament. his
outlook necessarily does not apply when the government is no longer a royal one
in an antidemocratic sense, and when it, independent of the parliament, has or can
produce a direct connection with the people by appealing directly to the conidence
of the state citizens entitled to vote (cf. below under 2). [266]
While all public law and political ideas are dominated by the struggle
against a nondemocratic government, it is naturally the case that for democratic ideas the government is understood as something subordinate to the
popular assembly. A dualistic relationship of superiority and subordination
is almost always constituted, with the people (the enfranchised voters) superior to the popular assembly (the parliament) and the popular assembly superior to the government. Under a widely held idea, this construct is
considered a system of committees. he popular assembly (the parliament)
is a committee of the people (enfranchised voter), while the parliamentary
government is a committee of the popular assembly (of the parliament).
State organization appears as a committee system with three levels: people,
popular assembly, and government.
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Application of the Political Principle
hus Bluntschli, Allgemeines Staatsrecht, I, 1868, p. 490, terms the “legislative
body” a “proportional extract,” although otherwise he is still sympathetic to the distinctive feature of the concept of representation. Nevertheless, it is noteworthy that
Bluntschli does not speak of an extract or committee of the enfranchised voters,
but rather “of the entire people’s organism,” so that the concept of representation
still does not apply. In this context, he cites the famous expression of Mirabeau of
31 January 1789, according to which the estates are for the nation what a geographic
map is for the appearance of the country: a picture showing these relationships like
the original. Even this picture involves not only the mere committee and exponents,
but also still contains something of the idea of a genuine representation.
In the more recent literature, by contrast, the sympathy gradually disappears
entirely. Here are some examples involving the Weimar Constitution. Giese, Kommentar zur Reichsverfassung, 2nd ed., pp. 161, 191, argues that “the parliamentary
principle considers the ministry an executive committee of the popular assembly,
even if it does not necessarily derive from its womb.” In the subsequent editions,
the word “committee” recurs. Cf. the collection in H. Herrfahrdt, Die Kabinettsbildung nach der Weimarer Verfassung, Berlin 1927, pp. 10/11. he term committee
is entirely absent from discussion in the 7th edition (1927) of Art. 54 as well as Art.
53. In the deliberations of the Weimar National Assembly, the idea of the committee
is expressly rejected. Koch (Protocol, p. 302) declared rightly that the Reich government cannot be a committee of the Reichstag majority. On the contrary, as a characteristic example of the typical failure to recognize a problem, take H. Nawiasky,
Die Stellung der Regierung im modernen Staat, Tübingen 1925, p. 7, who proposes
a three-level pyramid with the people forming the base. Above this level rests “an
advocacy organ,” “which to a limited degree represents the will of the people and,
consequently, renders it capable of action” (p. 7). “hat is the popular assembly, the
intermediate level of our pyramid,” he argues, and over this, again, a smaller collegium, a “committee with its conidence.” “hat is the government; it stands at the
peak of the pyramid,” according to Nawiasky. Also corresponding to the idea of
the committee is that of a “proportional government,” by which the members of
the cabinet are determined according to the basic principles of the proportional
election of the parliament (thus the understanding of H. Triepel, Staatsverfassung
und politische Parteien, 1927, p. 22, which cited the Austrian statute of 1920 as an example). he constitutional provision, contained in some Land constitutions (Saxony,
Württemberg, Baden among others), that after every new election a reconstitution
of the ministry must follow, rests on similar ways of thinking. [267]
he idea of a committee is certainly logically consistent under the perspective of the democratic principle of identity. However, it nulliies the
idea of a representation and, indirectly, of the political unity in general.
(b) he second possibility is the government’s superior position in regard
to the parliament. he prior practice of English cabinet government shows
the opposite image. he leader of the majority party forms the cabinet, or
government, as prime minister, and this government leads the parliament.
he idea of a committee recurs here behind that of leadership and administration, so that in the public law literature the English prime minister is
occasionally even designated as the “irst among equals,” whom the parliamentary majority has to obey. he superior position is explicable from the
Application of the Political Principle
293
fact that the government supports itself directly on “public opinion,” for
which even the parliament is only an expression.
(c) he third possibility is a counterpoise, in which neither the parliament nor the government is superior or subordinate. hat is possible
when the government can produce a direct connection with the enfranchised state citizens at any time. he bearer of the balance is the people.
he people maintain the balance and are the higher third vis-à-vis factors
of equal rank, parliament and government. he progenitors of the Weimar
Constitution understood this idea as “genuine parliamentarianism” (below
§ 24). Even here the organizational problem arises of producing the direct
connection (one not mediated by the popular assembly) between the government and the state citizens entitled to stand for election or to vote.
2. Direct relationship of people and government can be produced by the
following means:
(a) Direct election of the government by the state citizens with electoral
rights. It is established in the Weimar Constitution for an essential governmental organ that the President is elected by the entire people according to
Art. 41. At the same time, however, there is a Reich government dependent
on the conidence of the parliament, whose constitutional theoretic design
consequently causes special diiculties (below § 27, p. 340f.). he connection between the President elected by the people and the parliamentary
government is, on the one hand, produced by the President’s right to name
and to dismiss the Chancellor and ministers [268] under Art. 53, and, on
the other hand, by the provision of Art. 50, according to which all the President’s oicial actions require the countersignature of the Chancellor or of
the competent Reich minister. According to this idea, the fact that the entire people select the President in direct election should create an instance
of representation, even if it is diminished by the possibility of recalling the
President under Art. 43, 2 (by popular vote called by a petition of a twothirds majority of the Reichstag). Under this idea, the German Reichstag is
also a representative (Art. 21). As under the constitutional monarchy, two
representatives once again stand opposite one another and, moreover, the
principle of representation is bound up with the democratic principle of
identity.
An outstanding sociologist and state theorist, F. Tönnies, made the suggestion
that even the Reich government (Chancellor and the Reich ministers) be elected
directly by the people, in Schmollers Jahrbuch, vol. 51 (1927). he question is whether
this direct election supports the idea of democratic identity or the idea of a representation. If I understand Tönnies correctly, he is seeking here to strengthen the
democratic principle.
(b) Dissolution of the parliament by order of the government.
he dissolution must, as already discussed (p. 263), be viewed as an appropriate institution of this system. If it is to have a constitutional sense,
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Application of the Political Principle
it must be valid for the case of the governmental majority of parliament
issuing a vote of no conidence. he direct connection with the people can
be produced against the no conidence vote of the parliamentary majority,
and, as higher third, the people decides the conlict arising between the
government and the popular assembly. Cf. below § 29, p. 358.
(c) An order of a referendum on behalf of a governmental organ against
the decisions of the parliament. “A statute concluded by the Reichstag is
made the subject of a referendum prior to its promulgation if the President
provides for it within a month after passage,” according to Art. 73.
In the cases (b) and (c), there is an “appeal to the people.” Because the
parliament can also appeal to the people on its own account against the
governmental body (in Germany, against the President via a dismissal petition under Art. 43, 2), the reciprocal opportunities balance one another out
(cf. the [269] scheme above p. 197). he people hold the balance. he new
elections or popular vote occurring in such cases has the special function
of deciding a political conlict among the highest state oicials. In this instance, the people act as sovereign above and beyond the statutorily mandated constitutional jurisdiction.
III. Democracy and relations among states under international law.
he application of the democratic principle of identity to relations with
other states results in the return of the principle of representation and limitation of its application. At this point, moreover, it is most evident that
no political unity can exist without representation and that even a pure
democratic state must be represented in regard to other thoroughly democratic ones. Despite the great political and social changes among states, the
generally recognized rules of international law on diplomatic traic have
hardly changed in the last century. Even today, agreements and customs
stemming from a pure monarchical time are valid in the same way despite
the development of democracy (cf. above p. 210).
he application of the democratic principle is evident in the fact that
for the conclusion of treaties or for declarations under international law,
the will of the representative is no longer alone decisive and the concept
of ratiication itself is brought into disarray, because the concept of representation is not properly recognized. he consent of the popular assembly
(of the parliament) or even a popular vote is constitutionally required for
agreements under international law to be valid in two senses. First, this
consent supplements the ratiication by the head of state (the representative) as the special requirement for validity under international law in
such a way that it does not force the representative aside. Second, an act of
the popular assembly or a popular vote directly constitutes an action under
international law, so that the representation by the head of state loses any
independent signiicance and still only afects the formality of the exchange
Application of the Political Principle
295
of the ratiication documents, while, on the other hand, it remains unclear
to what extent the popular assembly or, indeed, even the voting populace
represents the political unity in regard to the foreign state.
Art. 45 contains three diferent possibilities: complete representation, limited
representation, and elimination of representation by the head of state. According
to section 1, the President represents the Reich in terms of international [270] law;
in the name of the Reich, he concludes alliances and other treaties with foreign
powers; and he conirms and receives emissaries (full representation). Under section 2, the declaration of war and conclusion of peace by statute (the “ratiication”
by the head of state is only a formality of international legal conveyance, even if it
remains meaningful in international law terms due to the need for conirmation
under international law). Section 3 stipulates that alliances and treaties with foreign states that have a connection with Reich legislation require the consent of the
Reichstag (here the ratiication is a substantively meaningful action of the representative, which the consultation of the popular assembly supplements).
he Reich Constitution of 1871 made the Kaiser the representative of the German
Reich under international law. According to Art. 11, 3, insofar as treaties with foreign
states involved matters that under Art. 4 belong in the realm of Reich legislation,
conclusion of such treaties required the consent of the Bundesrat, and the approval
of the Reichstag was necessary for them to be valid law. Under the prevailing understanding, this limitation had only public law signiicance. As such, it did not involve
the full representation of the emperor in regard to other states (Laband I, p. 230,
II, p. 137f.; Meyer-Anschütz, p. 818). In another understanding, the constitution
limited the scope of representation (Seydel, Kommentar, p. 163), while, according
to G. Jellinek, Gesetz und Verordnung, pp. 349, 354, the requirement of the popular
assembly’s consent added a (conclusive) condition to the international law treaty,
for “in terms of legal validity the representative can only promise that which it can
fulill itself.”
Historically, the limitation of the representation by the head of state stems from
the French constitution of 1791, Title III, chap. II, art. 3, section 1. “he legislative
body,” it reads, “is competent to ratify peace, alliance, and trade treaties; a treaty
becomes efective only through this ratiication.” Additionally, the 1793 and 1795
constitutions (Art. 55 and 333, respectively) stipulate this for all treaties, while the
constitution of 1848 (Art. 53) requires the consent of the National Assembly to all
treaties. According to Art. 8 of the constitutional law of 16 July 1875, the president of
the republic ratiies treaties. However, peace treaties, trade treaties, treaties through
which inancial obligations of the state are established, and such treaties that afect
the personal status and the private property of the French abroad are irst “conclusive” when they are passed by both chambers. Withdrawal, exchange, and acquisition of territories all occur via statute.
he Belgian constitution of 1831 makes the king the representative of the state
in regard to other states. However, for trade treaties and for treaties burdening the
state or obligating individual Belgians, it requires the consent (assentiment) of both
chambers, and for territorial changes it demands a statute (Art. 68). his provision is modeled after Art. 48 of the 1850 Prussian constitution. “he king has the
right to declare war and to conclude peace,” it reads, “even to establish other treaties
with foreign governments. If they are trade treaties, or if through them burdens are
placed on the state or on individual state citizens, then they require the consent of
the chambers in order to be valid.” Art. 48 of the Prussian constitution had not been
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Application of the Political Principle
considered a limitation on representation by the most widely held theory (even by
Gneist). It is instead viewed as an internal public law requirement, while under Belgian constitutional law there is the requirement of an “obligatory ratiication of the
chambers” (Errera, p. 49).
he partial revision of the Swiss federal constitution of the year 1921 (Art. 89, 3,
of the federal constitution) is of particular interest as an example of the penetration
of direct democracy. State treaties with foreigners that are concluded for an unlimited duration or for more than ifteen years [271] must be presented to the enfranchised state citizens (to the people) for acceptance or rejection (beyond the “approval” by the Federal Assembly), if it is demanded by 30,000 enfranchised citizens
or by eight cantons. Indeed, three types of “ratiication” appear: the ratiication by
the international law representative, the approval also designated as ratiication, and
the ratiication (or rejection of the ratiication) by the people (cf. Fleiner, Schweizerisches Bundesstaatsrecht, p. 756).
An important consequence in practical terms of this democratic elimination of
representation is that the denial of ratiication counted earlier as something abnormal, almost as an insult for the foreign state. Cf. the case of the French-English treaty
of 1841 on the suppression of the slave trade, the ratiication of which France denied
despite signing the treaty and the speech by Guizot in the Chamber of Deputies on
1 February 1843. Now, on the contrary, the reservation of approval by the bearer of
state legislative authority becomes self-evident, and the denial of ratiication is no
longer something abnormal. Cf. the case of the free zones in Savoy, in which the
French-Swiss Treaty of 7 August 1921 had been denounced by the popular vote of 18
February 1923 and not ratiied by Switzerland. M. Fleischmann, Deutsche JuristenZeitung, pp. 643f.). On the general problem of “democracy and foreign policy,”
there is up to now only one comprehensive monograph, J. Barthélemy, Démocratie
et Politique étrangère, Paris 1917.
IV. Democracy and administration.
1. An administration carried out in accordance with the principle of
democratic identity is practically impossible and, according to democratic
principles, not even a theoretical problem, because in administration (in
contrast to the government) there is no representation. he handling of all
public afairs by the enfranchised state citizens would be at most possible
only in the framework of a modest local self-government and then only as
local (cantonal or provincial) self-government and not as state administration. Democracy, however, is a political concept, so its principles afect the
determination of political unity as an entirety in terms of legislation and
government.
A “democratization” of the administration only involves execution of
individual tendencies and reforms corresponding to the fundamental democratic idea or to the program of democratic parties, such as, for example,
election of civil servants rather than their appointment by a higher oicial or
the selection of functionaries through the electorate of the oicial district,
etc. In a state governed by parliament, the demand of a democratization of
the administration easily comes to mean that parties holding only a transitory majority select administrative functionaries. he state and communal
Application of the Political Principle
297
civil service thus transforms itself into a party following, whereby the leading civil servants [272] become party functionaries and electoral agents.
he Weimar Constitution via Art. 130 seeks to escape these consequences
by freeing the civil service from this practice of obedience and corruption.
It thereby seeks a “depoliticalized” condition, as one often says, whereby the
word “politics” is understood in the inferior sense of “party politics.” With
the help of an institutional guarantee with constitutional law status under
Art. 130, the idea of the political unity of the state is meant to be protected
against a partisan political dissolution. Nevertheless, German public law
does not go so far as to separate the position of the civil servant from that
of the deputy and to create an incompatibility, to declare, in other words,
the position of a deputy (a party politician) irreconcilable with the position
of a public oicial. he Weimar Constitution did not adopt this logic of the
idea of the civil servant state.
2. Even the recruitment of lay persons for state administration also often
counts as a sign of democratic administration. he voluntary activity of
such laypersons is then understood as democratic administration. In this
context, the concept of the people in its negative meaning may have determined the linguistic usage. he layperson belongs to the people because
he is not a civil servant, so the recruitment of laypersons can count as
something democratic (on this negativity of the word “people,” see above
p. 241).
3. Self-government in the sense of local, cantonal, or provincial selfgovernment is often equated with democratic administration. According
to Hugo Preuß’s construction, state activity in a state governed by parliament is only “national” self-government. State and locality are equivalent,
and the connection to the state is not essentially diferent from that to the
locality and other associative collective persons (Gemeinde, Staat, Reich als
Gebietskörperschaften, 1889, p. 189; Handbuch der Politik, I, p. 198f.). In this
way, the public law has thus became social welfare law, and from a particular political unity the state has become a social connection and is rendered
nonpolitical. Such a way of thinking is, in fact, liberal and not democratic.
Democracy is a political concept and, as such, leads to a decisive political
unity and sovereignty. he administrative result can be the most energetic
centralization just as well as it can be self-government. he centralized administration of the French state, for example, corresponds to a thoroughly
democratic [273] realization of the idea of unconditional national unity. he
countermovement against this form of centralism, federalism, regionalism,
estate organizations, is for the most part monarchical and antidemocratic.
here is naturally also a democratic federalism. But it is incorrect to consider the democratic principle of identity as equivalent to the ideal of the
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most extensive communal self-government (in contrast to state administration). he people in a democracy are always the entire people of the political unity, not the electorate of a locality or of a county. hat the political
unity as a homogenous and closed entirety is distinguished in a particular
way from all other domestic political groupings and organizations is the
essential presupposition of political democracy.
Adolf Merkl, Demokratie und Verwaltung, 1923, p. 16, speaks of democratic administration (as opposed to “autocratic” administration) “in the sense of coming into
wide acceptance and into power, according to which the staing of the organization
through election and appointment is determinative for democratic administration
and autocratic administrations, respectively. his nomenclature inds application
here, however—what cannot be emphasized decidedly enough—only in the interest of an easier understanding and in the full consciousness that in the designated
properties the democratic or autocratic character of an institution does not come
close to being fulilled and exhausted. A deinition is nonetheless found on pp. 44/5.
“But otherwise,” it reads, “(in particular apart from the fact that the ‘bureaucrats’
are not less a part of the ‘people’ than are party politicians), the iction of an administration by the people is hardly sustainable. Democratic administration means
administration by representatives of a certain political party.” And he continues on
p. 45 that “in reality, self-government, in all its genuine historical manifestations,
is neither an administration by the people, as the idealizing political legends put it,
nor, however, even an autocratic administration, as the withering political critique
maintains. On the contrary, as it is plainly grounded in the essence of territorial selfgovernment, it is the administration by elected representatives of every majority
party that makes itself more or less noticeably unpleasant to the minority parties
excluded from the administration as politically ‘foreign administration.’ With the
ideology of self-government under such circumstances, one who does not allow
himself to be fooled by political phrases or ictions will not be easily persuaded to
support the progressive democratization of the administration.”
V. Democracy and the judiciary.
1. he judge is bound to the statute. His activity is essentially normatively determined. He is not an independent representative of the political unity as such. Considered politically, this adjudication, which is entirely
dependent on statute, is “en quelque façon nulle.” Even in the bourgeois
Rechtsstaat, the problem of political justice is emphasized [274] in the general judicial framework by the presence of special jurisdictions and organizations (above § 12, p. 134). If democracy is basically political form, the judiciary, by contrast, is fundamentally nonpolitical, because it is dependent on
the general statute. It follows that in regard to the judiciary unambiguous
and compelling consequences cannot be drawn from the democratic principle. One can control adjudication by way of the political concept of law.
One can demand further that justice should be “in accord with the people”
and that this aspiration afect certain institutions to be discussed immediately below. But the achievement of this aspiration depends to a great extent on the political situation and mood as well as on the political values of
Application of the Political Principle
299
judges at the time. It does not rest on systematic connections of a constitutional type.
Even in a democratic state, the judge must be independent if he is to be
a judge and not a political instrument. he independence of the judge, however, can never be anything other than the reverse side of his dependence on
statutory law. Herein lies the great diference of this type of independence
from the independence of the deputy of a legislative body, such as the independence of the Reichstag deputy under Art. 21. Independence under
Art. 21 should establish a representation and thus has a distinctive political
sense. he independence of the judge should protect him from all oicial
commands and directives, above all those of the government, or political
oicials, so it has the opposite purpose, which is the rejection of the political. Everything that the judge as judge does is normatively determined and
distinguishes itself from the existential character of the political, even if it
must produce an “integrative” efect, as must all state activity.
In Rousseau’s ideal democracy, the identity and homogeneity of the people is so
great that even judges and parties want the same thing. See the Contrat social, bk.
II, chap. 4, sec. 7, where he argues that the volonté générale is the common interest, and, from it, arises a “wonderful agreement” of interest and justice, an agreement that cannot emerge from the discussion of private and particular interests. In
his words, the common interest and the common use make, on the contrary, “the
norm of the judge identical to that of the party.” his situation is a beautiful example
in democracy of the elimination of all distinctions and complications by general
identity and homogeneity. At the same time, however, it also becomes clear that an
absolute identity and homogeneity is impossible, and Rousseau’s construction runs
in a tautological circle. For with an absolute identity of all with all, no one needs to
pursue further legal proceedings for the securing of justice. When everyone wants
the same thing, not only does the distinction between judge and party (of which
Rousseau speaks) disappear, but the [275] distinction between accuser and accused
does as well. Even this diference becomes “identical,” and the problem of justice is
resolved because there are no longer any legal trials.
2. If a democratic state requires that justice be “people’s justice,” the will
of the people is made the deining perspective for settling litigation. hat is
a simple matter when the will of the people is only expressed in the general
norms of Rechtsstaat statutes. In a democracy, however, the people are sovereign. hey can violate the entire system of constitutional norms and settle
litigation like the prince in an absolute monarchy, who could resolve legal
disputes before courts. he people are the highest judge, just as they are
the highest legislator. If under people’s justice is understood a practice of
democratic power claims, the word designates only the democratized and
multiheaded type of cabinet justice. It is not generally meant in this way.
One is mostly content to demand that only the judge that bears the conidence of the people can adjudicate legal claims. Under the people, however, is not understood the entire nation, as if it were democratic. Often
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Application of the Political Principle
understood rather is only the inhabitants of individual oicial districts. he
conidence could be expressed in such a way that the judges are selected
for a speciied time or until the inhabitants of the district express a lack
of conidence in them. It is also possible for the populace to demand the
decommissioning of a judge who has fallen from favor through so-called
“recall.” he consequence would be that adjudication is dependent on the
mood of a district’s populace. hat is not a democratic requirement from
the standpoint of a national democracy.
People’s justice, however, could also mean that men or women “from the
people” should participate in the resolution of judicial business, especially
in adjudication. Here again, the word people has its negative sense (above
p. 241) and means only that persons who are not professional civil servants,
trained jurists, or law teachers participate in adjudication, hence in lay justice, in contrast to adjudication by civil servants and by legal academics
(jurists). To this demand corresponds the institution of lay judges or jury
courts for the criminal trial. his ideal may hardly be practical in the same
degree for the resolution of bourgeois legal disputes and may only mean
that expert laypersons (a concept that is not [276] entirely without contradiction) are recruited for judicial activity as trade judges.
In conclusion, taken most generally, people’s justice can signify a popular
justice in the sense of an agreement of court judgments with the legal sensibility of the people. So long as judges are dependent on statutory law, it is
irst of all a matter for the legislature to make popular laws and, in this way,
to create the foundation for a popular justice. During the interpretation of
statutes, in particular the application of indeterminate statutory concepts,
the judge should conform to the fundamental legal views of his time and
people. In normal times and with a people that is homogeneous culturally,
socially, and in terms of religious doctrine, that is not a diicult task. If this
homogeneity diminishes, then reliance on the fundamental legal views of
the people is not a solution to the diiculty. In any case, it would be an error
in such a situation to refer the highly political task to the judiciary. Political
decision is a matter for the legislature and for the political leadership. he
Free Law Movement of the last decades demanded a popular justice, but
for the most part it did not take into account the implications in constitutional theory terms, because it did not recognize clearly enough the extent
to which the independence of judges and the strictest bond to the statute
condition one another and that the law must be a statute. his produces a
true bond and is not merely a blanket reference to indeterminate norms
and to judicial discretion that politicizes the judiciary.
Application of the Political Principle
301
§ 21.
Boundaries of Democracy
I. Because the one-sided and exclusive execution of one of the two principles of state form, identity and representation, is not at all possible, and
because no state system can be fully formed according to the principle of
identity without any representation (§ 16, II, p. 204), there is a limit to the
absolute implementation of the democratic principle of identity. he theoretic consequence of the principle of identity will, indeed, validate itself
again and again in a democracy and appear as something illuminating and
self-evident. Nevertheless, a democratic state cannot [277] fully renounce
all representation. Democracy inds its irst natural boundary.
II. An additional boundary of democracy results from the nature of the
people in the diferent meanings of this word.
1. he people as an entity that is not oicially organized (above p. 242)
become valid in individual moments and only by way of acclamation, hence
today as “public opinion.”
2. he people as state citizens who elect or vote in a regulated procedure
(above p. 239) can (a) elect persons dependent on their conidence. In this
regard, they are to a great extent dependent on suggestions. he people
must transfer to the elected persons the decision of substantive questions
according to the scope of their jurisdiction. Or (b) they can reach a substantive decision by way of the vote on a question (so-called substantive
plebiscite). Such a vote is fully conditioned by the posing of the question
resulting from the secret individual ballot. he people can only say yes
or no.
hat is also the case with the popular initiative. Considered more closely, the
procedure in such an initiative is one in which private initiators present a draft law
that poses the question of whether this demand should be considered. he portion
of the enfranchised state citizens desiring the initiative answer “yes” to the question
posed. Art. 73, 3, stipulates that a complete statutory draft is an integral part of
an initiative through which a popular legislative procedure should be introduced.
Naturally, the vote cannot complete a statutory draft. In regard to the determining
whether a tenth (Art. 73, 3) or a twentieth (Art. 72, 73, 2) of those with the right to
vote intend the initiative to pass (in the procedure for introduction under § 31 of the
law on the referendum of 27 June 1921), “yes” is answered only to the statutory draft
presented and to the question of whether this draft law should provide the basis for
the initiative. By way of secret individual ballot, more precisely, the people can never
pose a question. It can only answer a question posed. heodor Mommsen’s observation about the dependence of the assembled people on the magistrates’ posing of
the question applies ever more aptly to the procedure of secret individual vote in
today’s mass democracy.
Summarized in a short thesis, one can say that the people can acclaim;
in a secret individual vote, they can only elect the candidates presented
to them and answer yes or no to a precisely formulated question posed to
them.
III. With the help of the principle of separation of powers, the practice
of modern democracy has rendered the democratic principle relative to an
organizational means of legislation (above p. 260). Moreover, certain afairs
and materials, in particular inancial questions, [278] and the methods of
the so-called direct democracy are often excluded from the process or this
procedure is limited to such materials. Finally, the process of direct democracy can frequently be forced aside by emergency decisions.
Art. 73, 4, contains an example of such limitations by providing that “only the
President can occasion a referendum on the budgetary plan, on expenditure laws,
and commission orders.” Cf. above § 20, I 2c (p. 262) and I 4c (p. 264).
According to Art. 73, 2, a statute, whose promulgation is interrupted by at least
a third of the Reichstag, must be submitted to a referendum when one-twentieth
of the enfranchised voters request it. Under Art. 72, however, the Reichstag and
Reichsrat can declare a statute urgently needed when a third of the Reichstag demands a postponement, and the President can promulgate the statute regardless of
this demand, thereby vacating the referendum stipulated by Art. 73, 2. According
to Art. 89, 2, of the Swiss federal constitution, a referendum can be requested on
a generally binding federal executive decision that is not of a pressing nature. he
federal statute concerning a popular vote on federal statutes and executive decisions
(“referendum statute”) of 17 June 1874 provides in Art. 2 that “the decision that a federal executive action is to be treated as pressing is reserved to the federal assembly.”
hus, in Switzerland, important afairs like the creation of the associational Oice of
Land Law (1911) and of the Federal Oice for Social Insurance (1912), both of which
were added by way of the emergency need clause, could be removed from consideration in the referendum (Fleiner, Schweizerisches Bundesstaatsrecht, pp. 403/4).
IV. Critique of the principle “the majority decides.”
Friedrich Naumann wanted to include this principle in the Constitution,
which he thought of as a people’s catechism, especially as an expression
of democratic principle and democratic outlook. he text of the Weimar
Constitution does not contain it. Nevertheless, it is perhaps appropriate to
remember that it is ambiguous and unclear.
1. In regard to a ballot question, the word “decides” in the principle “majority decides” only signiies the formal resolution of a substantive alternative, while in an election it signiies the selection of the elected person. On a
ballot question, the majority decides in the manner that it answers yes or no
to a profered, formulated question. he principle “majority decides” states
that there is agreement on the fact that the question is answered as conclusively as accords with the size of the majority of ballots cast. Whether a
decision is in fact reached depends on the correctness of and opportunity
for posing an alternative in the form of a simple question.
Boundaries of Democracy
303
2. Dependence on the posing of the question means that the numerical
majority of the ballots cast only decides the substantive issue on an exceptional basis. he substantive decision is often already rendered by the manner of posing the question. But if the will [279] of the people expresses itself
occasionally in undeniable acclamation and in a decisive, noncontradictory
public opinion, that has nothing to do with the procedure of a secret individual ballot and the statistical determination of the majority. In such cases,
it is never certain whether a subsequently held secret individual vote would
provide the same result as the aforementioned direct emergence and expression of the people’s will. For public opinion is generally only borne by
an active and politically interested minority of the people, while the great
majority of the enfranchised state citizens are not necessarily politically
interested. It is now in no way democratic and would, moreover, be a remarkable political principle that those without a political will should decide
in contrast to those with such a will.
3. When it is said that those who pose the question are in a position to
decide the substantive outcome through the manner of posing the question, this is meant not only psychologically. he inluence of the posing of
the question results not only from the selection of the time of the vote or
from the possibility of inding suggestive formulations, in which the answer
can already be contained and made redundant. hese are technical questions of mass psychology, which should remain unexamined here. It also
need not be discussed that the mass of the enfranchised voters can often
not be adequately instructed and that they lack the necessary expertise and
powers of judgment, etc. In a democracy, it is precisely this perspective
that may never be brought forward as something deinitive, because under
the presuppositions of a democratic state system the people are capable of
every political decision. For the distinctly political questions directed to the
people as a whole, especially in regard to the existential distinction of friend
and enemy, technical, specialized information and details of technical expertise must be settled by the competent and responsible technical experts.
hese matters cannot be handled by the mass of the enfranchised voters.
However, they are also not the actual political issue in question. he actual
ground of this dependence on the posing of the question lies precisely in
the fact that the greatest part of the enfranchised voters generally has the
aspiration to behave passively in regard to the decision and to evade the decision. [280] his desire not only explains the high number of abstentions,
which is often criticized. Above all, it also accounts for the demonstrable
tendency regarding the majority of ballots cast of providing an answer that
contains a minimum of substantive decision.
hat is in accord with all previous historical and political experience. A few apparent contradictions, which one can ascertain in the results of popular votes, re-
304
Boundaries of Democracy
Yes
Jacobin Constitution
(did not enter into force)
No
1,801,918
11,610
(only one out of 44, 000 communities
voted against the Republic
Constitution of the Directory,
1795 . . . . . . . . . . . . . . . . .
Consulate Constitution, 1799 . . . .
Napoleon as consul for life, 1802 . .
Napoleon as emperor of the
French, 1804 . . . . . . . . . . . .
Supplementary acts (during the One
Hundred Days), 1815 . . . . . . .
Louis Napoleon’s coup d’état
approved, 1851 . . . . . . . . . . .
Louis Napoleon as emperor of
the French, 1852 . . . . . . . . . .
. .
. .
. .
916,334
3,009,445
3,568,885
41,892
1,562
8,365
. .
3,574,898
2,569
. .
1,532,327
4,802
. .
7,439,216
640,757
. .
7,824,189
153,145
solve themselves in a simple manner if one takes into account which result actually
contains the minimum of decision. It has been noticed that the plebiscites of the
revolutionary and Napoleonic governments in France always resulted in a “yes.”
Cf. above p. 86; also the number of voting results in France (according to DuguitMonnier) below.
In the referenda in Switzerland, by contrast, the inclination appears to be to say
“no,” at least in regard to progressive laws, such as the introduction of health and
accident insurance, which was concluded by the federal legislative organ in 1890,
rejected by referendum in 1900, and irst accepted in 1912 by referendum. On this
tendency, cf. Curti, Die Resultate des Schweizerischen Referendums, 2nd ed. 1911;
also Hasbach, Die moderne Demokratie, p. 154. One concluded from this tendency
that the methods of direct democracy are conservative or, indeed, “reactionary.”
In fact, the majority of the state citizens answering in secret individual votes are
neither reactionary nor progressive, but rather simply nonpolitical, and, as such,
these citizens seek to evade the substantive decision, while it is forced to give an
answer that constitutes the minimum of decision. he “yes” the French citizens
gave in the Napoleonic plebiscites is explained entirely independently of the government’s electioneering by the fact that there was in reality an accomplished fact
and that the decision was already reached. A “no” here would have contained a new
political decision of unpredictable consequences. It was easier to say “yes,” and so
the majority said “yes.” he opposite is the case in the Swiss referenda. If in regard to
the proposal of a legislative change the majority answers “no,” then it is the “no” that
signiies the minimum of substantive decision. For also with the “no” the directly
present, given circumstance persists. In other words, the matter remains essentially
unchanged, which is a resolution whose “decisional” content is obviously less than
the decision for a change.
4. he method of individual secret ballot transforms the enfranchised
citizen into an isolated private man and makes it possible for him to express
his opinion without abandoning the private sphere [281]. A tabulation of
Boundaries of Democracy
305
what private people think privately produces neither a genuine public opinion nor a genuine political decision. It can even be inappropriate to expect
such decisions from private people.
At least the majority of professionally engaged citizens would prefer, to the extent that it is not a matter of their direct economic interests, not to be unnecessarily
burdened with political decisions. A clear, public example of this aversion to a decision presents itself currently (1927) every time the inhabitants of the German Reich
raise the lag. “he Reich colors are black-red-gold,” according to Art. 3. “he commercial lag is black-white-red with the Reich colors in the upper inside corner.” his
provision contains a compromise and not a domestic political decision between the
colors black-red-gold and black-white-red. An overwhelming and decisive acclamation of the German people has still not resulted. he result of a secret individual
vote would probably be dictated by party discipline and would not provide a majority that seems overpowering to the part of the electorate that was outvoted. Currently, this type of resolution may still not be the most appropriate means of such a
decision. Meanwhile, a large part of the population, above all business people, has
let it be known publicly that they themselves also do not want to decide in that they
either do not ly the lag at all or display a “neutral” one like the provincial lag, the
local city lag, the papal lag, or a lag of one’s own that is specially prepared for a
purpose—as living illustration of the principle the “majority decides.”
5. Even in terms of numbers, one cannot simply say that the “majority
decides” when the majority of the ballots cast should be the deciding factor.
More accurately, it is frequently the case that in reality a small part gives the
edge. If on the occasion of a vote of one hundred in all, one part comprises
forty-eight yes votes and another part forty-eight no votes, arithmetically
both these parts cancel themselves out and the remaining portion of only
four out of the hundred decides. hat is of great substantive signiicance
in a population splintered into many parties, because not all parties have
the same interest in the question posed. he issue of religious schools, for
example, can be decided by a small party devoted to protecting tenants, the
adherents of which vote for tactical reasons for the one or the other of the
parties interested in religious schools, or a question of foreign or economic
policy can be decided by a party that is interested, above all, in religious
schools, etc. So in fact the “majority decides” only really holds when there
is the complete similarity of motivation of all those voting.
6. When the majority is nothing other than the result of a tabulation
of ballots cast in a secret individual vote, one can just as well say that “the
majority does not decide.” [282] Such a method of statistical majority determination actually only has the sense of a restricted authorization and limited efective political means for all state citizens to participate in state life.
Nevertheless, one may not overlook that there is a type of democracy, and
above all parliamentary democracy, that has an interest precisely in having
certain conlicts remain latent and left undecided. he procedure for majority determination can become an appropriate and desirable means of
306
Boundaries of Democracy
avoiding or suspending political decisions. Politically, it can be simply wiser
not to decide and to use the alleged majority decision in this way. hen,
the principle the “majority decides” would already belong to the arcana of
certain political systems, the handling of which extends beyond the framework of a “constitutional theory.”
Boundaries of Democracy
307
§ 22–2.
he heory of Monarchy
I. he opposition of monarchy and democracy rests on the opposition between both principles of political form, representation and identity.
he political principle of monarchy entails the representation of political unity. Moreover, there are numerous foundations and justiications of
monarchy. But if one ignores the experiential reasons of practical and rational purposefulness, they may be traced back to a few simple types.
1. he monarchy is religiously grounded. In a distinctive sense, the monarch is “of God,” an “image of God,” and of godly essence.
he monarchical formulation “from the grace of God,” considered from the perspective of modern ideas, has only a polemical and negative sense and means nothing more than that the monarch does not owe his power and authority to another
(other than God), not to the church or to the pope, or even to the will and consent
of the people. However, the connection of monarchy and religious ideas in no way
exhausts itself in this meaning. In terms of intellectual history, a monarch who governs the state appeared always as an analogy to God who governs the world. During
medieval times and up into the modern period, the king had a supernatural character for the great mass of the people even in physical terms. As Marc Bloch has
shown in numerous examples in his work “Les rois thaumaturges” (Etudes sur le
caractère surnaturel attribué à la puissance royale, particulièrement en France et
en Angleterre, Strassburg 1924), the fact that the king performed miracles and, in
particular, healed the sick through laying on of hands was completely of a piece with
the vital power of the monarchy. [283] he last attempt to work seriously in practical
terms with these religious images of monarchy falls in the year 1825, when Karl X
of France still wanted to heal the sick through the laying on of hands, an attempt,
however, that only produced a somewhat embarrassing romantic imitation (Bloch,
Etudes, p. 404). By contrast, during a time in which the king performs miracles, with
his entire person he can be considered holy and inviolable, priest and the anointed
of the ruling lord. he king’s law is godly, that is, of religious origin; the king himself
is a governor of God (cf. Gierke, Althusius, p. 177; Funck-Brentano, Le roi, Paris 1912,
p. 166f.).
his religious grounding of the monarchy passes over into a less precise, historical or general irrationalism. he last openly theological argumentation may be
contained in the state theory of Bonald, who incorporated the monarch into a series
of “unities”: a god, a king, a father; monotheism, monarchy, and monogamy. In F. J.
Stahl, this theological construction is bound up with other, antirationalist, traditionalist, and legitimist arguments.
2. Even if it easily becomes the religious image of God the father, the
monarch as father is another justiication. he authority and power of the
father in the family, the patria potestas, is applied to the state, which is
understood as an enlarged family.
Numerous examples and details in Funck-Brentano, Le roi, p. 52f. Especially
in his Politique tirée de l’Ecriture (1709), Bossuet above all advocates this patriar-
chal form of argumentation together with the religious one. “L’autorité royale est
paternelle,” he argues. “La Monarchie a son fondement et son modèle dans l’empire
paternal.” he patriarchal theory of the monarchy that Filmer, Patriarcha (1680),
presented is still known today through a few jokes by Rousseau (Contrat social, I 2).
In fact, this theory involves an adaptation that is to be taken seriously at least in
social-psychology terms.
3. Other types of monarchical ideas are not distinctive in the same degree as this religious or patriarchal justiication. here is a patrimonial
monarchy, in which the monarch appears as the bearer of superior and
lasting empire and of economic power, above all as the great landholder
of the country, dominus, or property owner. In real political terms, that
can be a very irm basis for the monarchical position, but it is not a type
of argumentation that is characteristic of and peculiar to the monarchical theory, because the social prestige of every great empire can lead to a
patrimonial posture. It is just like the feudal monarchy, in which the king is
the leader of a following that is devoted to him personally and serves him
for life and death, and to which he guarantees in exchange protection and
maintenance in diferent forms (reception in his home, an allowance, and
other types of care). hese types of allegiance form themselves in the most
diverse ways, without one being able to speak of the monarchy in the sense
of a principle of political form, [284] so long as the lord does not receive
a divine blessing or patriarchal oice. he other historical types of monarchy come just as little into consideration for the ideal justiication of monarchy. In the civil servant monarchy, as it took shape in European states
from the sixteenth to the nineteenth century, the monarch is the pinnacle
of a civil service organization, premier magistrat. he distinctive monarchical element rests on historically received, non–civil servant state ideas.
In the Caesarist monarchy, as it was realized in the Bonapartes’ empire,
the monarch is only a dictator on a democratic foundation. In the course
of development, this type of monarchy can become a genuine monarchy.
Ultimately, however, the democratic principle supports it, and it turns the
monarch into a representative of the political unity borne by the will of the
people, who, as such, is constituted by an act of the constitution-making
power of the people.
he six types of monarchy enumerated here—theocratic, patriarchal, patrimonial, feudal, bureaucratic, and Caesarist—bind themselves in historically genuine
cases of monarchy in diferent ways, so that every concrete case of monarchy contains in itself several of these elements combined with one another and alongside
one another. he monarchy of the German territorial princes of the eighteenth century, such as the Prussian monarchy under Friedrich William I, contained patrimonial elements because of the king’s great domain possessions, feudal ones in its
relationship with the nobility, civil servant elements because a bureaucratic administrative apparatus, formed according to certain principles, had already arisen from
the commissioners of the seventeenth century, and also lay religious elements in
he heory of Monarchy
309
the connection with the country’s church government. It only lacked any Caesarist elements, which irst became possible with general, compulsory military service
and general right to vote in the nineteenth century. In his treatise “Democracy and
Empire” (1900), Friedrich Naumann sought to transform the German monarchy in
the twentieth century into a Caesarist one, an attempt not only without practical results, but also one that was falsely justiied in theoretic terms. For a legitimate monarchy cannot falsely attribute to itself another ideal basis. he principle of dynastic
legitimacy contradicts the democratic principle of legitimacy. In this instance, there
is an unavoidable either/or choice (above p. 54, 88). As soon as legitimacy has become an ideal basis of an institution, the legitimate power can no longer emerge as
the bearer of a new political idea. Shortly before the Revolution of 1789 in France,
there were attempts at similar constructions of a connection between the existing
monarchy and Caesarism and the suggestion was made that the king exercise a dictatorship borne by the conidence of the people (cf. Die Diktatur, p. 112). But even if
Louis XVI had united in himself all the qualities of a Caesar or Napoleon, the mere
fact that he was the legitimate prince would have suiced to make the fulillment of
such a role impossible for him. A new political principle always appears historically
with the new men who bear it.
he genuine idea of monarchy returns in the nineteenth century. he still
existing monarchy is justiied with either historical-traditional or with sentimental arguments. [285] Diferent perspectives are combined in the legal
and state philosophy of Friedrich J. Stahl. Yet even here the distinctively
monarchical aspect of the current of thought is absent, and the argumentation has the efect of a clever plea. One refers to that which developed historically, makes analogies to the personal god, emphatically advances the
demand that one should have piety. In reality, however, it is only a matter of
legitimacy. One can justify the most diverse institutions with historical arguments. But when only the legitimate domestic political status quo is actually defended, that is something other than the principle of political form
of monarchy. Much less still is the poetic portrayal of kings by Romantics,
such as in Novalis and Adam Müller, a monarchical state theory. hey make
out of the monarch a springboard for moods and feelings. he monarchy
hence loses its political, institutional, and even legitimate sense, because
not only the king or queen, but rather all possible persons or things, the
people as well as the monarch, the revolutionary as well as the loyal servant
of his master, on occasion all prompt a sentimental attachment and could
become the theme of a poetic beautiication. he idea of the representation
of the state, the monarchy’s principle of political form, disappears into the
idea that the king is a symbol or type of ideal. hese concepts no longer
had their old power and became a mere occasion for romantic feelings and
moods, while the popular assembly emerged as the true representative “of
the people,” which means in particular of the political unity of the people.
5. he legitimate monarchy is not a type of monarchy; it is, rather, an
instance of legitimacy.
310
he heory of Monarchy
II. he signiicance in constitutional theory terms of the diferent justiications of monarchy.
1. All principled justiications of monarchy contain at the core only two
ideas, which lead in a distinctive sense directly to monarchy: the idea of a
personal god and the image of the father. None of these ideas belong essentially to the political sphere. Where the monarchy is religiously justiied and
the monarch becomes a divine creation or one standing in a special connection with God, the idea moves in the theological realm or on the terrain
of worldviews, not in the political sphere. [286] If the world is governed as a
unity by a single god, and the unity of the state is understood under a monarch as something equivalent or analogous, the primary concept is obviously
God and world and not monarchy and state. If the monarch is understood
as the father of the state family and the dynastic concept of a hereditary
monarchy is derived from it, the idea of irst importance is family and not
state. Always, therefore, it is nonpolitical ideas and images that constitute
the core of the argumentation. he theological or cosmological idea must
lead to a world monarchy and eliminate the distinctive connection of the
monarch with a certain state and a particular people, which is precisely
the political element. For in regard to the idea of the absolute unity of the
world, a multitude of states and peoples is incomprehensible. he family is
a unity justiied by physical lineage and household community, which lacks
the character of the public. It is not a political entity like the people. Such
grounds for monarchy are justiications of mastery and authority in general, but not of a principle of political form in its idiosyncratic peculiarity.
2. he rationalist justiications of monarchy, which emerge since the
eighteenth century, are of an entirely diferent type. he king is nothing
other than premier magistrat for the philosophy of the Enlightenment, the
irst and, if it is justiied in terms of reason, the most enlightened civil servant, who can best care for the well-being of his less enlightened subjects.
But neither the inheritability nor the legitimacy of the monarchy results in
this way, and if a prince lacks the aforementioned quality of the enlightened
person, the justiication does not apply.
In the nineteenth century, the rationalistic and empirical justiications of
monarchy are distinguished by the fact that they incorporate the monarch
into the Rechtsstaat system of separation of powers. hese justiications
make a mere governmental form out of the monarchy and render it into
the more or less inluential chief executive. he justiications are diferent
here, but they always take proving the usefulness and appropriateness of
the monarchy as their point of departure. he typical example is the following consideration, which is already found in Mably and de Lolme, but
which is also still expressed in Max Weber with great certainty (“Grundriss
der Sozialökonomik,” Wirtschaft und Gesellschaft, III, p. 649). hrough the
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311
hereditary monarchy, he claims, the highest place in the state avoids [287]
political competition. Its worst extreme is thus removed from domestic political struggle. Consequently, conlict becomes more mild and rational, for
the politician’s striving for power is limited because the highest oice in the
state is possessed once and for all. “his latter, essentially negative function,
which attaches to the mere existence of a king as such, who is chosen according to irm rules, is perhaps, considered purely politically, the practically most important thing” (Max Weber).
he position of the monarch rests above all on the fact that he stands
above the parties. If the state is transformed into a party state through parliamentarization and democratization, that becomes an especially meaningful position. he king receives a distinctive place in the organization of
the diferent “powers” compared to the legislative and executive. He becomes a neutral authority, a pouvoir neutre, an invisible, tempering, and
moderating element that balances out all oppositions and frictions between
the diferent state activities and functions, an invisible modérateur. his
construction is typical of the Rechtsstaat liberalism of the parliamentary
monarchy. It stems from Benjamin Constant. Historically, the bourgeois
kingship of Louis-Philippe may best correspond to its ideal. Nevertheless,
the entire current of thought of a neutral authority is also of direct interest
for the establishment of the position of a republican state president.
he role of the pouvoir neutre or modérateur naturally eludes a formal, constitutional deinition. Cf. the discussions of this role of the German president, below § 27,
III, p. 351. From time to time, certainly, express constitutional provisions also occur.
hus, the (imperial) constitution of Brazil of 25 March 1824, which in Title V (Art.
98f.) speaks of the legislative power (pouvoir législative) and then of the emperor
in Title V (Art. 98f.) under the chapter heading “Du pouvoir modérateur,” reads
“Le pouvoir modérateur est la clef de toute l’organisation politique, il est délégué
exclusivement à l’empereur comme chef suprême de la nation et son premier représentant,” etc.
3. Every consideration of appropriateness and usefulness, just like all arguments deduced from historical experience, whether they are presented
by liberal theorists like Benjamin Constant and Guizot or by antiliberal
monarchists like Charles Maurras, are necessarily relative. Viewed from
the perspective of historical experience, they are dependent on an important presupposition in that they are valid only for a dynasty that has existed
and remained on the throne uninterrupted for generations. [288] With his
political inluence, the monarch can retire completely and transfer political
leadership and all potestas to parliament or to a powerful party leader. Over
a long period of time, he can disappear as a factor of political power, but he
must retain continuity in regard to the occupation of the throne, if he is to
fulill the functions that justify his position (the neutral authority existing
above party, representation of the continuity of the state during crises). If
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he heory of Monarchy
this continuity is interrupted, any claims on behalf of the monarch fail to
persuade, because the monarch is drawn into party conlict and even his
role in the system becomes a party matter.
Rationalist arguments from appropriateness are only efective under a monarchy
whose political security remains unshaken. It is valid only for a “traditional” monarchy, not for the “new prince,” the “principe nuovo,” for whom Machiavelli wrote his
book about the prince. Machiavelli emphatically states in this famous treatise that
it is easy to keep oneself on the throne if, in peaceful times, one rules as a generally
honored and respected prince. By contrast, to justify and defend a new monarchical regime is an entirely diferent political situation. If through the toppling of a
dynasty the line of succession is ripped apart, all these justiications and arguments
fail. It never applies to a monarchical restoration, because until now each of these
has failed: 1660–1688, the Stuarts in England; 1815–1830, the Bourbons in France;
in a certain sense even 1852–1870, the restoration of the Bonaparte family under
Napoleon III. Charles Maurras says that domestic political party conlicts under
democratic politics would lead to appeals for help by foreign governments and the
latter’s interference in the politics of these democratic states. He names as a classic
example the typical tendency in Greek democracies, in which the aristocratic party
would appeal to the Lacedaemonians for help and the democratic party would appeal to the Athenians. he same process repeated itself in the Italian states of the
sixteenth century, when in Florence one party made the French allies, the other the
Spanish or the Germans. his historical experience is without doubt very interesting. Set against it, however, is the other experience that restored monarchies also
do not last without external political support, which means allies abroad. One must,
indeed, designate the connection of the Stuarts with the king of France, for example,
simply as treason from the national English standpoint, and the monarchical policy
of the Holy Alliance of 1815–1830 also led to constant interventions. From historical
experience alone no noncontradictory political system is possible, and if the monarchy is still only historically justiied, then any clear proof and every principle is
generally lacking. One can only say that the monarchy arises and passes away like
everything in history.
III. he position of the monarch in the modern constitution.
he constitutional monarchy rests on the fact that the monarchical principle is restricted by the separation of powers, and the monarch, as an autonomous and independent chief of the executive branch, represents the
political unity, while a popular assembly (the parliament) stands opposite
him as a second representative. [289] In this way, there develops a separation and balancing that corresponds to the organizational principle of the
bourgeois Rechtsstaat. he question of sovereignty, however, is certainly
not decided here and remains open. In Germany’s constitutional monarchy, the monarchical principle retained its validity during the nineteenth
century behind the constitutionally legislated norm; the monarchy was
genuine state form, not only governmental form and organizational element of the executive.
For the German constitutions, Friedrich J. Stahl, the theorist of the Prussian
constitutional monarchy, successfully elaborated the distinctiveness of the consti-
he heory of Monarchy
313
tutional monarchy in contrast to the parliamentary one. Under this understanding,
the essence of the constitutional monarchy lies in the fact that the constitutional
monarch still has genuine power, and that his personal will is still somewhat valid
and not subsumed in the parliament. He remains “through the irm security of his
authorizations a distinct, autonomous factor of state authority” (Die Revolution und
die konstitutionelle Monarchie, 2nd ed., 1849, pp. 33, 76f., 93f.). hat was a distinction that was very meaningful in practical terms, but in principle it was only the
recognition of a form of legality under a bourgeois Rechtsstaat and of a form of
liberalism that moderated the exercise of the monarchical authority. One can term
that “constitutional monarchy” and even bring it into opposition to “parliamentary
monarchy,” although this parliamentary monarchy is also constitutional. Only one
must not fail to recognize that the political conlict was in principle between monarchy and democracy. he constitutional monarchy is not a special state form. It is,
rather, a connection between the principles of the bourgeois Rechtsstaat and the
political principle of the monarchy under the protection of the sovereignty of the
monarch, which immediately reveals itself during every conlict and in every crisis
(above pp. 55, 88). he turn of phrase “constitutional monarchy” leaves open the
decisive question as to whether the monarchy ceases to be state form and becomes
mere governmental form or whether the monarchical principle remains intact.
In the parliamentary monarchy of the European continent, France under
the bourgeois kingdom of Louis-Philippe 1830–1848 and Belgium on the
basis of the constitution of 1831, the monarch remains the chief of the executive branch. Political leadership, however, is dependent on the agreement with the parliamentary majority. he state form was no longer monarchical. More accurately, the monarchy had become an organizational
element in the balancing of powers of the liberal Rechtsstaat. F. J. Stahl
terms that “liberal constitutionalism.” It distinguishes itself from the German constitutional monarchy (in Stahl’s manner of expression) by the fact
that the monarchical principle is given up. Consequently, the democratic
principle must necessarily become the foundation of the political unity if
this should continue to exist. he “constitutional” element pertaining to the
bourgeois Rechtsstaat is added to both principles of political form as an
autonomous component. he intent behind the constitutional element is to
devalue and balance them and bind them altogether. [290]
“Tous les pouvoirs émanent de la Nation” [All powers emanate from the nation], according to Art. 25 of the Belgian constitution. “Ils sont exercés de la manière, établie par la Constitution.” [hey are exercised in the manner established
by the Constitution.] Friedrich J. Stahl distinguishes among the following: 1. radical
constitutionalism, for example, the French constitution of 1791, which, therefore,
seemed radical to him, because the king only has a suspensive veto in regard to
legislation and, consequently, is not a legislative organ, but rather is limited strictly
to the executive function; 2. liberal constitutionalism, that is, legislation with a twochamber system, royal veto, and ministers dependent on the conidence of parliament; 3. genuine constitutional monarchy, such as, for example, under the Prussian
constitution of 31 January 1850, in which the government remains in the hands of
the king, whose consent is required for a statute, and in which the king convenes,
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he heory of Monarchy
adjourns, postpones, and dissolves the parliament. Like the entire construction of
Friedrich J. Stahl, this one is determined completely by the special political circumstance of the German monarchy. Its cardinal point lies in the fact that constitutionalism, in particular, a liberal principle, is correctly recognized as a principle added
to the political principle of monarchy or democracy, while, as shown above, the
core political question, monarchy or democracy, remains open and is not decided
through the recognition of a “constitution.”
2. he parliamentary monarchy Belgian style is also a constitutional
monarchy, but only after the renunciation of the monarchical principle,
which entails the transformation of the monarchy as a state form into an
organizational form of the executive (government). he term “monarchy”
is retained for historical reasons. his retention is, indeed, proper insofar
as the monarch can lose all power (potestas), while he continues to exist as
authority and, therefore, also to exercise the distinctive functions of a “neutral power” especially well. Political leadership and administration is in the
hand of his ministers, who are responsible to the popular assembly and dependent on its trust. he famous formula for this reads: “Le roi règne mais
il ne gouverne pas.” [he king rules, but he does not govern.] he question
posed by a great teacher of German public law, Max von Seydel, what then
remains of “régner” if one removes “gouverner?,” is answerable in reference
to the fact that one distinguishes between potestas and auctoritas (above
p. 75) and that the distinctive meaning of authority is made evident in regard to political power.
IV. he state president in a republican constitution.
1. In the nineteenth-century development of the Rechtsstaat, the historically received institution of the monarchy had been used and valued in a
distinctive manner. As “chief of the executive branch,” the king was drawn
into the system of the separation of powers with diferentiated grants of
authority, though always as the pinnacle of a special authority. Hence, from
a state form, the monarchy became a mere form of government, though
it retained [291] its representative character. For it corresponded to the
Rechtsstaat idea of balancing to place another representation in opposition
to that by an assembly (the legislative body), so that the sovereign, which,
according to democratic principles, is the people, remained in the background and did not emerge initially. he democratic principle (of the selfidentity of the people present at the time) was balanced with the principle
of representation, and yet the danger that the principle of representation
would establish itself absolutely eliminated the possibility that two representatives, monarch and popular assembly, would stand opposite one another and be reconciled to one another.
his construction connects in ideal manner the bourgeois Rechtsstaat
with a mixture of both principles of political form (monarchy and demoche heory of Monarchy
315
racy). So it is typical of the bourgeois-Rechtsstaat constitution and was retained where the monarchy as a form of government had also become impossible and the republic established itself. he nineteenth-century French
constitutional development is especially pronounced in this regard. As a
result of the repeated breaks in continuity, and in view of the numerous
changes in the possessors of the throne that the French people had experienced in the nineteenth century, a monarchical authority was hardly
still conceivable. But this Rechtsstaat balancing construct remained intact,
as did the design for an autonomous chief of the executive branch, which
should have representative character. his state president is the republican
version of the monarch of the parliamentary monarchy. He must be retained for reasons of the separation of powers and must be provided with
particular grants of authority (for example, dissolution of parliament), so
that the government in regard to parliament is balanced out to an indeterminate degree of independence.
Prévost-Paradol developed the state theory construct of this system in several
essays and above all in his book “La France nouvelle,” 1869. His ideas were of great
inluence on the French constitutional laws of 1875. In France then, one did not
want to permit the election of the president directly by the people, because one still
stood under the impression of a dangerous precedent, speciically the coup d’état
of 1851 that President Louis Napoleon, who was elected directly by the people, had
instituted with great success. Moreover, the political goal of the originators of these
constitutional laws of 1875 was certainly directed to the reestablishment of the monarchy. here was an attempt to set up the framework of constitutional norms such
that a reinstitution of the monarch be made as easy as possible. he design for the
balancing of powers is nevertheless the same. [292]
2. he Weimar Constitution adopted this system, and it introduced into
the constitution elements of a presidential system alongside such a pure
parliamentary one. he President is elected by the entire German people.
He has a series of important political jurisdictions, such as the representation of the Reich under international law (Art. 45), appointment and removal of Reich civil servants and oicers (Art. 46), high command over the
entire Reich defensive force (Art. 47), authority to compel Land execution
of Reich laws (Art. 48, 1), authority to issue measures under the state of exception (Art. 48, 2), and right of pardon for the Reich (Art. 50). His grants of
authority in regard to parliament, which should provide his position the capacity to act as a counterpoise to the Reichstag, are his authority to dissolve
parliament (Art. 25) and to order a referendum against a statute concluded
by the Reichstag (Art. 73). Cf. in this regard the overview in the balancing
schema, above p. 197.
According to Art. 179, 1, the President fully assumes the authority of the
Kaiser by virtue of the statute of 10 February 1919 on the provisional Reich
authority and on the basis of the transitional statute of 4 March 1919 (so
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he heory of Monarchy
far as nothing else is provided by law). In particular, he receives organizational authority, which is the power to regulate the establishment, jurisdiction, and activities of Reich oicials to the extent that this authority was
accorded to the Kaiser. One cannot term that a legal succession, not even
an indirect legal inheritance, as does Anschütz (Kommentar, p. 435), for the
legal foundation is not the same. How much the oice of the President is
analogous to that of a monarchical chief of the executive is revealed in the
institution of equivalent authorities and in the assumption of a comprehensive position. As in other cases, there are elements of a principle of political
form that are rendered relative by reducing them into means of organization. hese elements of political form are bound up with the principle of
the bourgeois Rechtsstaat and opposing elements of political form and are
applied to a mixture typical of the bourgeois Rechtsstaat constitution.
he heory of Monarchy
317
§ 23-3.
Aristocratic Elements in Modern
Bourgeois-Rechtsstaat Constitutions
I. he political form of aristocracy rests on the idea of representation.
Nevertheless, the logic of this form principle [293] is weakened and moderated by the fact that not a single person, but rather a majority of persons,
represents the political entity. hus, there is in aristocracy itself a certain
“modération” (above § 16, IV, p. 218).
he modern bourgeois-Rechtsstaat constitution applies the aristocratic
principle’s elements of form in a twofold sense. If a parliamentary regime
is not initially an aristocratic system, it is nevertheless an oligarchic one
(on this below § 24). Moreover, elements of aristocratic form and structure
could be used as organizational means for the balancing of powers, so that
the democratic and monarchical elements render themselves equivalent.
While the monarchical element adapts itself especially well for the design
of the executive branch and is even used for this purpose (§ 22, IV, p. 288),
the aristocratic element was incorporated into an organization of the legislature that divides powers, and inside the legislative branch a more or less
aristocratic upper house stood opposite a democratically conceived lower
house. So arises the two-chamber system of the modern Rechtsstaat constitution.
II. Idea of and justiication for the two-chamber system.
1. he English model was deinitive for the introduction of the dual
chamber system in most countries of the European continent. his system contained something especially illuminating for the liberal ideas of the
nineteenth century. For it allowed itself to be properly brought into harmony with the principle of the separation of powers and, moreover, provided the opportunity to protect the social power of certain estates and
classes against a radical democracy. Consequently, it met liberal as well as
conservative demands in the same manner. his fact also accounts for the
wide distribution of this system. In Germany as in France, most liberals
considered the dual-chamber system a reasonable, enlightened institution
and construed it diferently.
2. he justiication for and formulation of the two-chamber system,
which became classic for the bourgeois liberalism of the nineteenth century, is found in Benjamin Constant. He understands the upper house as
a special representation and attempts to divide this representation by devising various matters of concern for it. he elected house of deputies is
a “representative” of changing public opinion; the hereditary-based upper
house is “representative of permanence and [294] continuity” (“durée” in
contrast to “opinion”). He no longer terms the “royal power” as “neutral”
(above p. 287), the executive as enforcement, and the judicial authority as
“representative.” he idea that a special advocate of stability and quality
must be placed alongside a lower house, which is dominated by shifting
opinions and majorities and is based on number and quantity, recurs in different forms. Even German liberals have expressly recognized such designs
of an upper house.
Bluntschli, Allgemeines Staatsrecht, I, p. 512; Gneist, Englische Verfassungsgeschichte, p. 675f.; the formulations of Benjamin Constant in his Oeuvres politiques, p. 18.
3. he dual-chamber system must contradict a democracy’s political
logic, for democracy rests on the presupposition of the uniied people’s
similarity and identity. An autonomous second chamber of acknowledged
political signiicance would endanger the uniied character of the entire
people and would lead the legislative branch, which counts in a special
sense as an expression of the common will, of the volonté générale, directly
into a dualism. Where a constitution intends to emphasize the sovereignty
of the one and undivided nation and perhaps additionally master political
fears of the social power of an aristocracy, the one-chamber system will be
fully implemented.
Hence the French constitutions of 1791 and of 1848. For the latter, Tocqueville
had advocated the one-chamber system, because under it the president of the
French Republic was elected by the entire French people, and only a legislative body
that is united and elected by the entire people should stand opposite a president
elected by the entire people. On the Swiss aversion to the two-chamber system, see
Esmein-Nézard, I, p. 126.
he fact that democracy rests on the presupposition of complete homogeneity and unity accounts for this democratic aversion. For a democratic
constitution, the question of the dual-chamber system reduces itself to a
clear alternative. Either the second chamber expresses substantive peculiarities among the people that are worthy of respect, such as exceptional
education, distinctive experience, age, riches, land holdings; then this system signiies a violation of democratic equality and comparability of all state
citizens; or if it is not a matter of essential diferences and peculiarities, it is
incomprehensible why these diferences and peculiarities should lead to the
formation [295] of a special chamber. he Rechtsstaat interest in internal
balance and the liberal interest in the protection of valued minorities could
easily contradict the logic of the democratic principle. hat applies also to
the modern attempts to balance other social diferences, in particular the
opposition of capital and labor, in a second chamber. his opposition is so
strong that its organization into two bodies allows the social oppositions to
emerge even more noticeably and would further endanger political unity.
Bourgeois-Rechtsstaat Constitutions
319
III. he historical types of the two-chamber system.
1. he English upper house.
he assembly of lords, or the upper nobility, such as dukes, counts, and high barons, has convened since the fourteenth century (1332). he members of this assembly were among the vassals of the king and formed the Magnum Concilium, a feudal
assembly of vassals that as an upper house was separated from the lower nobility,
from the knights in particular, who assembled with the deputies of the cities and
communities as a house of communes, a house of commons. Together with the king,
both houses formed the parliament. Each house followed a particular historical development. Till this day, the House of Lords is a chamber of peers, in other words, an
upper chamber consisting primarily of hereditary members, who are appointed by
the king. Until 1832, actually, homogeneity existed between the two houses, because
the majority of the one house corresponded to that of the other, so long as the lower
house was not yet selected according to the basic principles of modern democracy,
but rather on the basis of a medieval election law of localities that stemmed from
many historical accidents, a law by which the lords of the upper house thoroughly
dominated the elections to the lower house. In the new development beginning in
1832, the lower house became a house of deputies in the modern democratic sense.
he upper house, by contrast, preserved its aristocratic character. hrough the Parliament Act of 1911, however, it lost the complete equivalence with the lower house
as a deining element in legislation. he king can now promulgate a statute without
the consent of the upper house if it is approved unchanged by the lower house inside
of a certain period of time in three successive legislative sessions. he upper house
now has only a “suspensive veto.” his Parliament Act of 1911, moreover, concludes
an additional development that had produced inance law. he lower house alone
decides so-called monetary statutes, even if the upper house considers them. In
cases of disagreement, the Speaker of the lower house decides the question of what
constitutes a monetary statute without the consent of the upper house.
At present (summer 1927), there are reform plans to give the upper house part of
its former power back. he political meaning of these aspirations is that a conservative upper house should oppose a lower house as an efective counterpoise, a lower
house in which, because of the democratic election law, the Labour Party is a lasting
determinant of power. he balancing should facilitate the protection of the existing
bourgeois order.
2. In most countries of the European Continent, the dual-chamber system was introduced in imitation of the English model. he idealization of
English constitutional [296] conditions, which had an important impact on
these developments, began with Montesquieu, continued through the entire nineteenth century, and still remained inluential among some authors
even into the twentieth century.
See Montesquieu, Esprit des lois, XI, 6, where he argues that “there are always
people in the state who distinguish themselves through birth, wealth, and prestige
(honor). If they were to be subsumed in the people, however, the common freedom
would be their undoing, and they would have no interest in defending freedom,
because most decisions would be directed against them. heir share in legislation,
therefore, must take account of their special interest.” he rationale for this type of
special chamber is that a minority that is valuable to the state should not be outvoted according to fundamental democratic principles.
320
Bourgeois-Rechtsstaat Constitutions
Resulting from these currents of thought is an aristocratic chamber of
peers, a “corps de nobles” or house of rulers that stands alongside a genuine
popular assembly.
Hence the “chambre des pairs” under Art. 27 of the French Charte of 1814 and
Art. 23 of the constitution of the bourgeois kingdom of 1830. he Prussian constitution of 1850, Art. 62, provides that “the legislative power is exercised in common by
the king and by two chambers; it is necessary that the the king and both chambers
approve every statute.” And Art. 65 reads that “the irst chamber is composed of
members whom the king installs with hereditary rights or for life.”
3. Dual-chamber system on the basis of the distinctiveness of a federal
state organization. A special chamber of member states as an assembly of
states is formed alongside the house of deputies that derives from the general elections of the entire people. hus an “assembly of allied state individualities” (Bluntschli) appears alongside the house of deputies formed on
a unitary, democratic basis.
he Senate in the United States of America, alongside the House of Representatives, together form the “Congress”; both the Estate Council of the Swiss Confederations as a delegation of the cantons and the National Council together form (as
“two departments”) the Federal Assembly. Under § 85 of the Frankfurt constitution
of 1849, the Reichstag consists of two houses, the house of states and the house of
the people.
In regard to grants of authority and activity, the Reichsrat of the Weimar
Constitution (Art. 60–67) in reality approximates a second chamber, though
it is not constituted as special representation. It is conceived, rather, only
as a delegation of the individual German Lands involved in the legislation
and administration of the Reich. In other words, it is seen as an assembly
of instructed delegates of the individual Land governments. hrough its
right of legislative consent (legislative initiative under Art. 69 and right of
parliamentary inquiry under Art. 74), the Reichsrat can exercise functions
of a second chamber in the system designed to divide powers. By no means,
however, does it form a parliament together with the Reichstag. [297]
4. here are consequences for a dual-chamber system in a unitary democratic state stemming merely from the division of powers. A second chamber in the form of a senate is placed opposite the house of deputies in order
to implement a division inside of the legislature and through this to create controls and limitations. Such a division is also meant to bring about
a more thoroughgoing deliberation and discussion of statutes. Along with
this comes the idea already expressed by Bolingbroke (above p. 203) that
the upper house must assume a referee function between king and lower
house, that is, between the chief of the executive branch and the popular
assembly, and it must play a mediating role between them as well.
Where for these reasons the institution of a second chamber in a republic based on the democratic principle results, the question is by which feaBourgeois-Rechtsstaat Constitutions
321
tures of its composition does that type of second chamber distinguish itself
from the other chamber. It would be undemocratic to create an institution
resting on inheritance or even only election for life in place of the methods
of periodic election. According to the constitutional law of 1875, the French
Senate should receive seventy-ive senators from the then existing National
Assembly, senators who are later installed for life through cooptation.
Nevertheless, that was eliminated again (by statute of 9 December 1884)
after a few years. hrough selection by inheritance and even by election
for life, independence and representation could become so strong that the
democratic principle of identity is violated. Consequently, one must be satisied with less signiicant diferentiations and nuances, such as variations
in electoral age, the voters, or the number of deputies, indirect instead of
direct election, periodic extensions, by which only a minority is removed
from oice and newly elected, in order to preserve the continuity of the
chambers and variation of the electoral district or of the electoral systems.
However, these diferentiations are obviously insuicient to form the ideal
foundation for an autonomous, politically signiicant institution.
5. More recently, there has been an attempt to conigure the dualchamber system as a connection between an economic and a political
chamber or between an economic parliament and a purely political one, so
that ultimately two parliaments (not only two chambers) would arise.
When the opposition between upper house and lower house means one between
capital and labor, the dual-chamber system is only the full elaboration of a class
conlict. However, if one attempts [298] to separate politics and economics and to
build the dual-chamber system on this separation, in order to evade this conlict,
the efort will not have a chance of success because the decision always lies in the
political sphere. hat is also true with regard to the construction of two parliaments.
When the economic parliament successfully asserts its position alongside the political parliament, in the critical case a conlict must arise if both parliaments are
not absolutely homogeneous and, consequently, their duality is absolutely superluous. If, however, a conlict arises, the parliament that proves itself the decisive
part will necessarily become the political parliament, because it assumes leadership
and, with this, responsibility, regardless of whether it was previously organized as
a political or an economic parliament. his objection has implications for the proposals made by Mr. and Mrs. Webb to set two parliaments (a political and a social
one) with equal rights alongside one another, as well as for the German proposals
that demand an economic parliament in the interest of a liberation of the economy
from “politics” (referring to today’s type of party politics). On this issue, cf. TatarinTarnheyden, Die Berufsstände, Berlin 1922, p. 238; Schmollers Jahrbuch, 49 (1925),
p. 185; and Zeitschrift für Politik, XV, p. 120. See also H. Brauweiler, Berufsstände
und Staat, Berlin 1925, and Preussische Jahrbücher, October 1925, p. 64. Brauweiler
is an opponent of the dual-chamber system.
Art. 165 of the Weimar Constitution introduced a Reich Economic Council that is conceived of as the organization bringing together a system of
worker and employee delegations. hese special delegations are linked with
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Bourgeois-Rechtsstaat Constitutions
district economic councils, which, in turn, are composed such that there
is parity between them (employer and employee delegations). Up to now
(fall 1927), however, the Council has existed only on the basis of a decree of
4 May 1920 (Reichgesetzesblatt, p. 858) establishing the provisional Reich
Economic Council manned by delegates from the diferent economic professions and parts of the economic life. According to Art. 165, 4, the Reich
government must present social-political and economic-political draft
statutes of fundamental importance to the Reich Economic Council for its
consideration. he permanent Reich Economic Council also has a right of
initiative to suggest draft statutes, and it can authorize one of its members
to advocate the proposal before the Reichstag. Otherwise, it has no right of
consultation in the Reich legislative process; it is essentially limited to an
advisory capacity. One can hardly include this institution of Art. 165 under
the scheme of the division of powers, for the Reich Economic Council is
not a special chamber, even if its members (as under Art. 5 of the decree
of 4 May 1920) count as advocates of the economic interests of the entire
people and are not bound to instructions. It is to be regarded just as little
as an autonomous economic parliament because an autonomous right of
decision must be conceded to a parliament for economic statutes and other
afairs. hat it is essentially limited to advisory activity also [299] has contributed to the fact that it still only conducts its business in committees
and that not even the formalities of a public discussion, which are part and
parcel of parliament, are observed. Individual grants of authority under administrative law, such as the issuing of permission for the production of
kindling (Reich Statute of 18 May 1927, Reichgesetzesblatt I, p. 123), change
nothing with regard to this conclusion. It could be that here approaches
to a distinctive reformation of parliament lie at hand, ones that cannot be
understood using traditional ideas of state organization. Nevertheless, it
must be said that up till now this Reich Economic Council of the Weimar
Constitution is neither a second chamber nor an economic parliament.
IV. he jurisdiction of and grants of authority to the upper house. he
actual jurisdiction lies in the area of legislation. Nevertheless, the English
model can contribute to the transfer of even other jurisdictions, in particular adjudication, and above all political adjudication, to this chamber.
1. Legislation.
(a) Positive consent under equal rights to the production of statutory
decisions.
he original sense of the dual-chamber system is that formal agreement
of both chambers establishes a statute. In the constitutional monarchy, the
approval of the king is added to that of the two chambers. According to this
understanding, a mere veto or right of parliamentary inquiry would not be
suicient to confer on a body the character of a legislative body. Even an
Bourgeois-Rechtsstaat Constitutions
323
absolute veto is not a right of consent in the legislative process. It is, rather,
a distinctive grant of authority that intervenes from the outside as a limitation on the legal authority of lawmaking. his absolute veto is not conceived
of as a form of consent. It is understood as an obstacle to and protection
against misuse. Still less can the grant of authority for a suspensive veto that
may only postpone legislative decisions count as a right of consent and confer on an organization the character of a second legislative body. In practical terms, however, such a right of parliamentary inquiry is frequently not
distinguishable from a right of consent, above all when the holder of this
right of parliamentary inquiry simultaneously has an authority of legislative
initiative. hat such a right of initiative alone cannot confer on an organization the character of a legislative body is self-evident. Other possible limitations, such as the [300] authority of the one chamber to initiate a referendum against the statutory decision of the other chamber or a parliamentary
dissolution, hence the opportunity to appeal to the people, likewise do not
substantiate a positive consultative authority in the making of legislation.
It was already discussed that the consent of the English upper house is limited
through the Parliament Acts of 1911, so that one often speaks of a mere right of
suspensive veto (for example, Esmein-Nézard, I, p. 209). Nevertheless, apart from
monetary statutes, the upper house remains competent for the deliberation of
statutory decisions. he expression “mere veto right” is practically and theoretically
imprecise.
he French Senate is in regard to legislative initiative a second chamber that is
thoroughly coordinate to the Chamber of Deputies. According to the constitutional
law of 25 February 1875 (Art. 5), it participates in the dissolution of the parliament.
he president of the Republic can dissolve the Chamber of Deputies only with the
consent of the Senate. he Senate’s right of consultation produces a balance and
establishes a type of referee position between the house of deputies and the state
president.
According to Art. 74, the Reichsrat of the German Reich has the authority to raise an objection. he statute then returns to the Reichstag for
an additional reading. So the Reichsrat only reaches a decision on the objection against the vote on the statute. Its decision on the objection is not
a vote on the statute. hrough repeat consideration by the Reichstag (for
which, according to the correct understanding, a single reading suices),
the Reichstag takes a position on the objection, without, however, deciding
on it conclusively. he decision, more accurately, is dependent on whether
the President orders a referendum or not. If during a repeat reading of proposed legislation only a simple majority of the Reichstag is present, the inal
parliamentary vote is not law. When the President does not order a referendum, the Reichsrat objection succeeds, and the establishment of the statute
is prevented. If during a repeat vote the Reichstag reaches its decision with
a two-thirds vote of the members present, the Reichsrat objection is vacated when the President does not order a referendum.
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Bourgeois-Rechtsstaat Constitutions
Under Art. 76, the Reichsrat can demand a referendum on a Reichstag
statutory decision amending the constitution. he constitutional treatment of its right of objection accounts for this Reichsrat authority. For
constitution-amending statutes, Art. 76 prescribes that the passage of such
a law requires a qualiied two-thirds majority (two-thirds of the legally set
member count for the house quorum, two-thirds majority decision of those
present). Compared to the irst reading of the bill, the two-thirds majority
during the additional reading would signify a repetition, not a special qualiication, and, in this especially important case, it would vacate the Reichsrat
objection if the President [301] does not decide to order a referendum. his
result is again corrected through the legal authority of the Reichsrat to demand a referendum in such cases.
(b) Both chambers usually also have the same rights in regard to legislative initiative. Nevertheless, almost everywhere there are exceptions to
the right of initiative in inance statutes. In this regard, the upper house
(house of lords or senate) recedes behind the lower house as the actual
“people’s” delegation, because the lower house is considered the advocate
of those who provide revenues or taxes and, consequently, must also approve inance bills.
he special position of the lower house in monetary bills is traceable to developments in England, where the lower house approves subsidies to the Crown. According to the federal constitution of the United States of America, draft statutes involving the raising of revenue must originate in the House of Representatives, although,
as with every other legislative bill, the Senate can approve changes. Under Art. 27
of the Belgian constitution of 1831, the House of Deputies must vote on any statute
involving income or expenditures. Art. 62 of the Prussian constitution of 31 January 1850 provides that draft inancial statutes and state budgets are irst presented
to the second chamber, whereas for other statutes the government had the choice
of the chamber to which it wanted to present the statute initially. Art. 8, § 2, of the
French Constitutional Law of 24 February 1875 provides that inancial statutes (lois
de inances) are irst presented to and voted on by the Chamber of Deputies. Controversy exists over whether the Senate does not have a right of amendment at all for
such inancial statutes. he question is whether the Senate must either accept or reject statutes in the form passed by the Chamber of Deputies; whether it may incorporate reductions or increases in the individual budget igures, as does the Senate of
the United States of America; or whether for these changes it unconditionally needs
the government to make use of its right of initiative, so that the Senate can undertake any changes in regard to the chamber decision, however only at the suggestion
of the government. An autonomous right of amendment of the Senate corresponds
the most to the intention of the originator of the constitutional law of 1875, who had
the model of the United States Senate in mind.
According to Art. 69, the Reichsrat has its own legal authority to decide on statutory proposals. Additionally, it has the right of consent to proposed statutes of the Reich government. For the statutory proposals that
arose from the loor of the Reichstag, the Reichsrat does not have this right
Bourgeois-Rechtsstaat Constitutions
325
of consent, making it easy to evade the requirement of Reichsrat consent
when a Reichstag fraction introduces the draft statutes. Where no agreement on a government proposal comes about between the Reichsrat and
the Reich government, the Reichsrat has an autonomous power of suggestion, which obligates the government to introduce the Reichsrat proposal
in the Reichstag.
For monetary statutes, according to Art. 85, 2, a coordinate right of participation exists for the Reichsrat insofar as the Reichstag, in the budgetary
plan proposed by the government, [302] can pass increases in expenditures
and reductions in revenue. Correctly understood, this right of consent (in
contrast to a mere right of objection) is valid for all monetary statutes and
apparently makes the Reichsrat into a second chamber for this important
area. Nevertheless, it must not be overlooked that the Reichsrat has a right
of consultation only with the government, not against it; moreover, that
this right of consultation can be vacated by a two-thirds majority decision
of the Reichstag (Art. 85, 5; on the practice of Art. 85, see Poetzsch, Jahrbuch des öfentlichen Rechts XIII, 1925, p. 221; Johannes Heckel, Archiv des
öfentlichen Rechts, new series 12 (1927), pp. 467/68).
2. he upper house (house of lords, senate, etc.) as Staatsgerichtshof. In
some constitutional provisions, a distinctive jurisdiction of the upper house
or the senate for political trials is established in line with the English model,
which has become irrelevant in the interim. he Weimar Constitution does
not recognize this type of political justice by a legislative body. On this, cf.
above § 12, p. 135.
3. Upper house or senate as “guardian of the constitution,” in other
words, as court of law for constitutional disputes; also as an organ for decisions on the constitutionality of statutes and decrees and for the so-called
constitutional complaints (cf. above § 11, III, p. 112).
Based on this is the institution of a “Sénat Conservateur,” which can declare statutes and decrees unconstitutional, something that is characteristic
of the constitutions of the French empire. Hence the constitutional laws of
the Year VIII (1799), XII (1802), of 14 January 1852, Art. 26f. In these latter
provisions, the Senate is explicitly designated the “guardian of the fundamental compact and of public freedoms” (“gardien du pacte fondamental et
des libertés publiques”).
4. Upper house (house of lords, senate) and parliamentary government.
Both chambers of the dual-chamber system together form the parliament.
Consequently, for political responsibility of the government to parliament,
the government must be dependent on both chambers, whether each individual chamber enforces this responsibility for itself separately, or whether
a consensual decision of both chambers is required. In reality, the democratic development leads to the fact that the upper house or the chamber
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Bourgeois-Rechtsstaat Constitutions
corresponding to it loses its inluence and transforms the dependence on
the parliament into a dependence on the lower house (house of deputies).
[303]
hat was irst decided in England during the nineteenth century (below p. 321).
In France, according to Art. 6 of the Constitutional Law of 25 February 1876, the
ministers are collectively responsible to both chambers (solidairement responsables
devant les chambres). he responsibility of the government in regard to the parliament is, in practice, primarily a responsibility to the Chamber of Deputies, although
theoretically the equal rights of both chambers are retained (Esmein-Nézard, I,
p. 234f.) and, even in practice, conidence and no-conidence votes of the Senate
occur (E. v. Hippel, Jahrbuch des öfentlichen Rechts XV, 1927, p. 180). On the Senate
and parliamentary dissolution, see p. 300.
In the German Reich, the demand for a parliamentary government only had the
sense of a dependence of the government on the conidence of the Reichstag. he
constitution-amending statute of 28 October 1918 thus provided that “the Chancellor requires the conidence of the Reichstag for the conduct of his oice.” By contrast,
the same statute states additionally that “for their conduct of oice, the Chancellor
and his deputies are responsible to both the Bundesrat and the Reichstag.” Art. 54
mentions the conidence of the Reichstag; the Reichsrat does not come into consideration. he elements of a second chamber, which are found in the organization
of the German Bundesrat or of the Reichsrat, are justiied only in the federal state
structure of the Reich and do not signify a genuine dual-chamber system (above p.
296).
V. he division of legislative authority that exists in the dual-chamber
system must lead to the position of a member of the one chamber being incompatible with that of a member from the other chamber. In this context,
there must be unconditional incompatibility (above p. 190).
Bourgeois-Rechtsstaat Constitutions
327
§ 24-4.
he Parliamentary System
I. Ambiguity of the term “parliamentarianism.”
he diferent designations often used without speciicity and discrimination, such as parliamentarianism, parliamentary government, responsible government, party government, majority government, etc., involve
diferent types of relationships between parliament, that is, the lawmaking
body, and the government. However, they also concern very diferent types
of political administration and leadership, of the “ruling power.” he use
of the word “parliament” is explained by English constitutional conditions
with the English Parliament being made the center of an ideal scheme and
becoming the model for other systems. But everywhere the greatest differences manifest themselves despite the common model. hus, diferent
features emerge as deinitive characteristics of “parliamentarianism,” and
if a constitutional regime speaks of the dependence of the government on
parliament, of “responsibility,” or [304] of “conidence,” these words have an
entirely diferent sense in various countries and eras.
1. What mattered in European continental states during the nineteenth
century is the fact that the elected popular assembly extended its political
inluence in regard to the monarchical government. he parliament as lawmaking body sought to extend its power beyond the realm of legislation to
that of the government, whether by the extension of a “formal concept of
law” (above p. 143) or through supervision of governmental activity, above
all, however, by determinative inluence on the selection of the leading political igures. From this emerged the idea that parliamentarianism signiies
rule by parliament, or popular assembly, over the government. he principle
of the separation of powers would then be eliminated to the beneit of a
parliamentary absolutism and the demand of a parliamentary government
would become a purely democratic demand: dependence of the government on the will of the popular assembly; the government as merely a committee of the popular assembly, therefore, of the parliament; the parliament
as merely a committee of the people (above, p. 266).
2. In regard to the democratization of the concept, the separation of
powers idea again leads to the parliamentarization of the bourgeois Rechtsstaat. hanks to R. Redslob, Die parlamentarische Regierung in ihrer wahren und in ihrer unechten Form, 1918, this idea gained prominence and inluenced the founders of the Weimar Constitution. According to Redslob,
the essence of “genuine” parliamentarianism is that the executive is not the
subordinated instrument of the parliamentary will such that a counterpoise
exists between both powers. How the counterpoise is produced varies because of the government’s authority to dissolve parliament and the possibility of the bringing about a referendum (cf. the schema above on p. 197).
Be that as it may, this interpretation involves something essential. For the
parliamentary system is not a result, nor is it an application, of the democratic principle of identity. Instead, by forming its actual system of government, the parliamentary system is part of a modern bourgeois Rechtsstaat
constitution. It rests on an application and mixture of diferent and even
opposing political elements. he parliamentary system uses monarchical
constructions in order to strengthen the executive, in particular the government, and to balance it out against the parliament. It applies the aristocratic
[305] ideas of a representative body, in some countries even of the dualchamber system. And above all it uses democratic ideas about the power
of the people voting directly, rather than the decision of those not represented, to transfer the resolution of the conlict between parliament and
government to the people voting in an unmediated manner. In this way, the
people emerge as the higher party and as the bearer of the balance in regard
to parliament and government. his system irst brings to completion the
typical and distinctive mixture, which, as shown above (p. 216), is part of
the essence of the bourgeois Rechtsstaat. It is not an autonomous political
form, neither a special state form nor a special governmental form. But it
is a system that applies and mixes diferent governmental and legislative
forms in the service of a pliable counterpoise.
I can accept the opinion of R. Smend, according to which parliamentarianism
is a special state form only insofar as the parliamentary system signiies a balancing and relativizing of state form elements that is characteristic of the bourgeois
Rechtsstaat. he parliamentary system can appear as something dynamic and can
be placed in opposition to that which is static because it attempts to produce this
balance of political elements. However, it is not something dynamic in the sense
that as the “integration” of political unity it came to embody a special principle of
form in opposition to other principles of state form. he distinctive quality lies in
the connection between and balancing of diferent elements of form in the service
of bourgeois Rechtsstaat principles and of the integration of the bourgeoisie into the
monarchical state (above pp. 207/8).
his system of an unstable counterpoise of political forms corresponds
in a special way to the political tendencies of the liberal bourgeoisie and of
the bourgeois Rechtsstaat. his is because various perspectives on identity
and representation, along with monarchical, aristocratic, and democratic
structural elements, are all applied indiscriminately. hrough mixture and
balancing it prevents any absolutism, whether it is of the monarchy, democracy, or parliament itself. In other words, it even prevents the absolutism of
an aristocracy or an oligarchy. his balance justiies its distinctive connection with the bourgeois Rechtsstaat, and in this regard it also corresponds
he Parliamentary System
329
to the political situation of the bearer of this idea of Rechtsstaat, that of the
liberal bourgeoisie. It is thus the political system of the bourgeois Rechtsstaat and sufers only from the deiciency that is unique to this Rechtsstaat
idea generally, for it intends to evade the ultimate political decision and
logical consequence of the principles of political form. It is even thoroughly
consistent logically when this system is simply understood as [306] a further requirement of a “free” state added to the other characteristics of a
Rechtsstaat, and a great constitutional theory expert like Esmein (I, p. 243)
states that “the parliamentary government in Europe is practically the sole
form of complete political freedom and an awe-inspiring system.” From the
standpoint of the bourgeois Rechtsstaat, it does in fact inspire awe. For indeed the reciprocal balancing of all elements of political form completes
the Rechtsstaat component of the modern constitution and protects it, so
far as it is possible, from the consequences and possible applications growing out of the political component that constantly threaten it. he uniied
character of this political component is dissolved, and the potential for political absolutism is taken from the individual, balanced, and mixed elements of form.
3. Corresponding to the use of diverse elements of political form, diferent types of political administration and leadership (of the “ruling power,”
the determination of the “politique générale,” or of the “guiding principles
of politics”) are realized. If the monarchical element and the idea of representation of the political unity by a single person predominates over other
elements, the parliamentary system can leave open the possibility of the
presidential system, by which the head of state, the chief of the executive
branch, participates autonomously in political administration. If the aristocratic or oligarchic idea of a parliamentary rule is predominant in the system, it reveals itself as a parliamentary system in the stricter sense, by which
the majority of the legislative body has the political reins, while it determines the guiding principles of politics. But it can also be that the leader of
this parliamentary majority has the political leadership and administration,
and then there is a premier system, in which once again there is a strong element of representation. Finally, it is conceivable that it is not the individual
party leader and minister president who handles political administration
and provides leadership, but rather a council of ministers, which in such
a case is usually a coalition ministry composed of diferent parties. hat is
to be designated here a cabinet system. hese four diferent parliamentary
subsystems will become prominent in the following historical depiction.
hey are not mutually exclusive. Instead, they form an [307] elastic, comprehensive system. It is necessary to distinguish among these subsystems in
order to understand parliamentary government in general, but above all to
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he Parliamentary System
understand the exceptionally diicult and rather opaque system established
by the Weimar Constitution.
II. he ideal foundations of the parliamentary system.
Both the peculiarities of the constitutional regime in detail as well as the
distinctive historical and systematic connection of the bourgeois Rechtsstaat with the parliamentary system are only understandable in reference
to the ideal foundation and justiication of this system.
1. he historical situation. In the states of the European continent, especially in France and Germany, liberal and democratic parties, in the struggle
against a monarchical government, supported and achieved the “parliamentarization of the government” as a program. In England, the parliamentary cabinet government developed in gradual transitions on the basis
of diverse precedents without deliberate intent through the relationship of
parliament to a dynasty called to the throne by parliament. In France and
Germany, it was not possible to forgo a conscious goal. In the nineteenth
century, the monarchical government still had an autonomous power that
was based on the army and the civil service, and it had to be forced to limit
and inally give up its rule by a bourgeois revolution. Consequently, in this
context, a principled program and a political theory of the parliamentary
system also had to result. In this regard, the so-called “parliamentarianism”
was not mere practice and custom, but rather a theory and an idea. But in
the same way that English parliamentarianism could be the practical model
because of the distinctiveness of the English national character as well as of
its political situation, the ideal justiication is to be found among the representatives of the French and German liberal bourgeoisie. Much later, in the
twentieth century when the actual struggle had been forgotten, one could
say of parliamentarianism in Germany that it involves a practical “rule
of the game” (Max Weber). To the French or German bourgeoisie of the
period 1815 to 1870, it involved something other than the rules of the game
and comparable methods that are consciously relativistic. his bourgeoisie
[308] took parliamentarianism as a political system seriously and gave it
an ideal justiication, without which the system is conceivable neither as a
whole nor in its individual institutions and norms.
Because of its simplicity, however, the reference to the English model
remained a widespread and popular means of proof, and, then as now, it
substituted for relection and political theory among many politicians and
theorists. Despite the English model, parliamentarianism developed into
a conscious system, simply because the political situation on the European continent, as was the case with continental intellectual history, was
entirely diferent than on the English island. he independent, systematic
justiication for parliamentary government evolved, both in Germany and
he Parliamentary System
331
in France, particularly in the period of 1815 to 1848. his period of time
must be viewed as the classic stage of the parliamentary idea. Among the
representatives of the French bourgeoisie, the idea emerges in a stronger
and more principled form than in Germany, a fact immediately explained
by the difering domestic political situations in both countries. In France
from 1815 to 1848, the propertied and educated liberal bourgeoisie, after
the experience of the revolutionary and Napoleonic period, was forced into
a struggle against the monarchical principle and against the restoration
of traditional ideas and institutions. his bourgeoisie had to become conscious of its political position. During the period 1830 to 1848, a political
system developed in France in the bourgeois kingdom of Louis-Philippe
and in Belgium through the constitution of 1831, a political system held by
many, among them an expert teacher like Lorenz von Stein, to be the true
ideal type of the bourgeois state. In this system, the ideal of political moderation and of a juste-milieu relected the distinctive intermediary stage of
the liberal bourgeoisie between the superseded monarchy and the rising
radical democracy that was already partly proletarian. Even these liberals,
who had other constitutional ideals than the French bourgeois kingdom
or the Belgian constitution of 1831, always took as their point of departure the idea that only moderate political parties come into consideration
as bearers of a genuine parliamentarianism. In Rudolf Gneist’s doctrine of
local self-government and the Rechtsstaat, for example, the value of local
self-government is precisely that it produces such moderation (Englische
Verfassungsgeschichte, p. 672). [309]
he frequently discussed opposition of liberalism and democracy manifests itself here in its decisive signiicance as the opposition of bourgeois
Rechtsstaat principles and the consequences of a principle of political coniguration. he liberal bourgeoisie stood between the absolute monarchy
and the ascendant proletarian democracy. Whether one considers it from
an objective standpoint of a scholarly critic or as a politician who deems it
conservative or socialist-radical, all observers of bourgeois liberalism have
noticed this intermediary position and made it the foundation of their designs. he critical year 1848 revealed the situation very clearly. In regard to
the political claims of a strong monarchy, the bourgeoisie vindicated the
rights of parliament, those of the popular assembly in particular. It vindicated democratic demands, therefore. In regard to a proletarian democracy, it sought protection in a strong monarchical government, in order to
save bourgeois freedom and private property. In regard to monarchy and
aristocracy, it appealed to the principles of freedom and equality, and, in
opposition to a petty bourgeois or proletarian mass democracy, it appealed
to the sanctity of private property and to a concept of law rooted in the
Rechtsstaat.
332
he Parliamentary System
In the appendix to “Socialismus und Communismus des heutigen Frankreichs,”
Leipzig and Vienna 1848, p. 36, Lorenz von Stein points out that the bourgeoisie
gradually becomes agitated about the principle of revolution. “However,” he argues,
“one does not deceive oneself on this point. his agitation is thoroughly negative. It
intends nothing deinite, not a kingdom, not a dictatorship, not a bourgeois regime;
it merely does not want uncertainty of conditions. For the bourgeoisie, the kingdom
is the seed of a new revolution; it does not intend it. Dictatorship is anti-freedom; it
does not want it. he bourgeois regime is either powerless or it is aristocracy; it does
not want it.” In a series of essays on the class struggles in France from 1848 to 1850 (in
the Neue Rheinische Zeitung) and in the essay on the Eighteenth Brumaire of Louis
Bonaparte (1852), Karl Marx portrayed the domestic political and social conditions
of France and mocked the bourgeois parties, which from the “sole possible form of
their united power, from the most violent and complete form of their class rule, the
constitutional republic, led back to the subordinated, incomplete, weaker form of
the monarchy.” Friedrich J. Stahl considers the Liberal Party in his Vorlesungen über
die Parteien in Kirche und Staat ([lectures] held between 1850–1857, published in
1863). “However,” he argues, “if it comes down to positively carrying out the ideas
of popular sovereignty, installing the entire people in power on equal terms, not to
subject one class to the authority of another even within the people, it [the party]
abandons these ideas; it installs in power only the middle class, the wealthy, educated, that is, just itself. Precisely in the same way, the Liberal Party claims the idea
of equality against the nobility, against all estates as such, because, according to the
basis of the revolution, it cannot provide an organic formation. Still, should equality
be positively instituted, should the class of those without property receive the same
rights as the middle class, it forfeits these ideas and makes legal distinctions in favor
of the [310] wealthy. he liberal party wants a census for representation and security
deposits for the press, allows only the fashionable into the salon, does not guarantee
to the poor the honor and polite treatment it does to the rich. It is this partial execution of the principles of the Revolution that characterizes the Liberals’ party position.” he general systematic summary of the position of the liberal bourgeoisie is
found in Stein’s presentation on the restoration and the July Revolution (Der Begrif
der Gesellschaft, Gottfried Salomon edition, vol. I, p. 498). Stein attempts to explain
the contradictions of this system in reference to the general oppositional tendencies
of all living things and, nevertheless, ultimately considers harmony possible. His
image demonstrates the contradictions and attempts at balancing so clearly that it
must be quoted extensively here:
By recognizing in particular the personal state authority (of a king [Schmitt’s
addition]), the constitutional principle of the bourgeois state attributes to this
state authority the essence of the personal, the independent will and act. On
the other hand, by making the king into the mere possessor of the power to
be exercised and every act dependent on the consent of his ministry, it again
deprives him of precisely this independent personal element. By demanding
that the king, or the autonomous state authority in any other form, who stands
over the parties of the society, should guide their struggles and hinder their
excesses, it places the king above the popular assembly in the same way as the
community element, which is independent of the concept of the popular assembly according to its higher mission. By contrast, providing statutorily that
the king should only execute the will of the majority, it makes him the tool
of those elements of society that can achieve this majority. Establishing the
he Parliamentary System
333
kingdom as the absolute inviolable element and as the source of all state authorities, it takes from the popular assembly the right, which it nevertheless
gives to the kingdom, to punish the misuse of power, because its inviolability
makes the violation of the right into the non-violation of the right. Because the
king swears allegiance to the constitution and acknowledges it as a right of the
people, the alternate inviolability of the constitution counters the inviolability
of the crown. Nevertheless, this right is such that one who violates it should
not be pursued as though the violation were an injury of a right. Consequently,
in order not to state an absolute contradiction, the cornerstone of the limited
constitution is, in fact, an idea that is absolutely irreconcilable internally. No
human insight is sharp enough to resolve this opposition conceptually and to
draw a juristic boundary that no longer contains a contradiction between left
and right.
2. he intermediary position of the liberal bourgeoisie rests on two different presuppositions, on education and property. Both together facilitate
and support the parliamentary system. If historically they no longer occur
together and diverge from one another, the deft construction of a pliable
counterweight and the mixture of political forms is displaced. Considered
in terms of constitutional theory, each of the two attributes leads to different consequences. Both attributes become valid under the bourgeois
Rechtsstaat constitution.
(a) Learning is a personal quality. As such, it is capable of being used in
the system of representation. According to its leading idea, the nineteenthcentury bourgeois parliament is an assembly of learned persons representing learning and reason, [311] in particular, the learning and reason of the
entire nation. Even the concept of the nation is a concept of learning. Only
a learned people in the sense of qualities like human will and human selfconsciousness is a nation. However, a fully unlearned and, consequently, an
unhistorical people, is not one. he parliament is a general national representation, a precise term that the Freiherr vom Stein had clearly intended
in his farewell statement of 24 February 1809. Until into the second half
of the nineteenth century, the advocates of the bourgeois Rechtsstaat and
the rights of parliament were still thoroughly clear about the meaning of
this attribute. “he most important requirement for all representatives,” according to Bluntschli, “is the formation of the spirit. For only the learned
man is capable of distinguishing carefully between his personal interests
and the interests of the whole and to subordinate the former.”
hus Bluntschli, Das Volk und der Souverän, 1831, p. 62. Additionally, see Allgemeines Staatsrecht, I, p. 432, on the rule of the “educated middle classes.” See Hegel
in the treatise on the Württemberg provincial estates, Abhandlungen zur Politik
und Rechtsphilosophie, Lasson edition, p. 219, where he argues that “the irst and
foremost of the people are not incorporated into the representatives of the people.
Instead, it should be the wisest who are taken, because the former (the people) do
not know, but they (the representatives) should know what their [the people’s] true
and actual will is, speciically, what is good for them.” On Gneist, cf. the quote below
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he Parliamentary System
p. 313. “he electoral census,” G. Waitz states, “can be a means of recognizing the
extreme position as a condition for independence and learning. However, it must
always apply to the middle class, not to the rich alone.” Grundzüge der Politik, 1862,
p. 64. According to Guizot, who sees in the bourgeois “classes moyennes” the true
bearer of political life, the parliament brings together in one place and, therefore, for
the public, the particles of reason scattered among the people. he entire political
pathos of Guizot, this typical advocate of a bourgeois liberalism, lies in the belief in
the parliament as a representation of reason. Also his “Histoire des origines du gouvernement représentatif en Europe,” 1851, rests on it. Renan in L’Avenir de la Science
is also very decisive on this point. “he opinion of the majority,” he argues, “does
not have a right to force itself, when this majority does not represent reason and
the enlightened opinion. he single sovereign of divine right is reason.” he belief in
rational justice and the normative element (p. 201) entails in particular the belief in
learning.
(b) Property is not a quality that can be represented. On the contrary,
the interests of the property owners are advocated. he right of electoral
census ensures that this interest advocacy genuinely comes about. hrough
it, however, the parliament receives, alongside the quality of a national representation, the character of an interest committee. In this attribute, it is
self-evidently not independent, but rather bound to the will of the interests
it advocates. he parliament as bearer of the right to tax and set the budget acts as an interest advocate, not only as national [312] representation.
he propertied bourgeoisie appeals to the justice of the principle that those
who pay taxes must also approve them and supervise their use. As long as
the fundamental bourgeois views of private and individual property dominated, a right of electoral census must result, a right where the upward
extent of the census can be diferent in detail, and yet it can still appear as
something just and self-evident that only those who pay the taxes and rent
may be represented in parliament. Conversely, those not represented in the
parliament also need not furnish taxes and rent. he principle to which
the English colonies in America appealed in their eighteenth-century Declaration of Independence and that even a liberal like Burke viewed as an
axiom reads: “No taxation without advocacy” (whereby in the indiscriminate Anglo-Saxon manner of expression advocacy is designated as representation, as “no taxation without representation”). For if a body no longer
represents, but rather only advocates interests, the nonadvocated interests
must assert themselves in some way, legal or not. hey must either be taken
up or suppressed. Consequently, the logic of the democratic principle became irresistible, and, in the course of the nineteenth century, an extension
of the general right to vote and the elimination of the right to electoral
census, at least for the lower house, was implemented. he parliament now
ceased to be representative of a certain type of learning. It became partly an
interest advocacy organization, partly a means of expression of public opinion, and it ended in a functional dependence on its electors. It became what
he Parliamentary System
335
one said of the English parliament of the last century: a mere registration
machine between electorate and cabinet government.
(c) To the extent that the bourgeoisie still led the political struggle only
under the perspective of its economic interest and to the degree that the
belief in a representative character disappeared, it was also able to content
itself with establishing the required political inluence with the help of its
economic power and to otherwise make peace with the most diverse governments, such as Bonapartism, a German-style constitutional monarchy,
and a democratic republic. he decisive consideration for the bourgeoisie
was that private property was not threatened and the inluence of the economic interests in the composition of the popular assembly was not endangered. his tendency accounts [313] for the noteworthy occurrence that
since 1848 a systematic ideal justiication of the parliamentary system has
actually no longer been expressed and that today it appears as something
outmoded and Biedermeierish; Richard homa even says “moldy.” After
1848, the form of argument in France becomes in part rigidly conventional,
in part skeptically resigned. In Germany, the thought of signiicant liberal
theorists inclines toward parliamentarianism incorporating society into
the state (according to Gneist, however, only on the basis of a proper local
self-government, Englische Verfassungsgeschichte, p. 673) and produces the
“thorough resolution of social oppositions in a consciousness of the whole.”
hat is already an expression of the idea that prompted R. Smend to treat
parliamentarianism in the special sense as a state form of integration (above
p. 305). Nevertheless, Gneist still always speaks of the learned and propertied classes when he demands an incorporation of “society” (for example,
Der Rechtsstaat, p. 153), and for the voluntary activity that, according to
him, is the foundation and presupposition of this incorporation, only bourgeois learning and bourgeois property can be considered. If the parliament
really achieves integration of the political unity of the entire people in a distinctive sense, it does that under the presupposition and on the foundation
of these bourgeois concepts of property and learning. It is very questionable whether the same system of integration can come into consideration at
all for a state with masses of industrial workers.
R. von Mohl in particular has expressed the other, more political argument presented on behalf of parliamentarianism in Germany after 1848. It
takes its point of departure from the dualism that exists in the constitutional monarchy of Germany between popular assembly and the government, which is impossible in the long term and must be settled once and for
all because it constantly leads to conlicts. Indeed, the dualism could also be
eliminated to the beneit of the rule by the monarchical government, but,
according to Mohl, that would only be possible by way of “corruption.” he
only other possibility that remains for him is a parliamentary government
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he Parliamentary System
(“Das Repräsentativsystem, seine Mängel und the Heilmittel, politische
Briefe geschrieben 1850,” in Monographien zum Staatsrecht, Völkerrecht
und Politik, Tübingen 1860, p. 34f., in particular p. 395). he point of departure of this way of thinking [314] is thoroughly correct. he dualism led
to conlicts, and these had to be resolved. However, the resolution occurred
diferently and was not as simple and theoretical as Mohl had thought. Bismarck’s overwhelming success decided the question against the parliamentary government and in favor of the monarchy. It propped up the German
style of constitutional monarchy another half century. Consequently, there
is no longer a strong parliamentary ideology in Germany after 1866. In the
struggle against parliament, the royal government produced national unity.
he idea that the parliament is the national representation to a higher degree than the king could not win out in opposition to this political achievement. he liberal and democratic parties still always demanded a parliamentary government, but their demand lacked the force that a cohesive and
committed system of thought expresses. Among the more recent German
liberals, who were also indiscriminately designated as democrats, Friedrich
Naumann, Max Weber, and Hugo Preuß, the idea that a new social class,
the workers, must be incorporated into the state is in part decisive. he distinctively liberal bourgeois integration method, the parliament, is applied
to a new class, while there is a failure to recognize the ideal structure of parliament, which is essentially deined by such characteristics as learning and
property holdings. Yet on the other hand, operative among these democrats
is the political recognition that new forms of national representation must
be created, an idea that was perceived as the problem of “leadership selection.” Reference was mostly made to the English model, and the demand for
a parliamentary government was justiied with the argument that according to the experience in England the parliament formed a political elite.
he distinctively liberal and bourgeois Rechtsstaat idea is thus given up,
and in its place a connection between democracy and social reform enters.
he deining quality of the parliamentary system is no longer explicable in
this way. For the parliament increasingly ceases to be representative of the
political unity. It becomes an exponent of the interests and moods of the
masses of voters, and the idea of a selection of the political leadership does
not justify a parliament of a few hundred party functionaries. It gives rise
instead to a search for a political leadership [315] and administration that is
directly borne by the conidence of the masses. If it is possible to ind such
a form of leadership, a new, powerful representation is created. But that is a
type of representation that is in opposition to parliament, whose traditional
claim to being a form of representation would be eliminated.
3. According to its underlying idea, the parliament of the bourgeois
Rechtsstaat is the place in which a public discussion of political opinions
he Parliamentary System
337
takes place. Majority and minority, government party and opposition, seek
the correct conclusion through a thorough consideration of argument and
counterargument. So long as the parliament represents national learning
and reason and unites in itself the entire intelligence of the people, a genuine collective will of the people as a “volonté générale” can form. he people
itself cannot discuss. According to Montesquieu, that is the great disadvantage of democracy. It can only acclaim, vote, and say yes or no to a question
presented to it. Even the executive should not discuss. It should act, execute statutes, or carry out measures that are necessary because of current
conditions. It cannot establish a reasonable, general norm, dominated by
the idea of justice, not a statute in the Rechtsstaat sense. In the middle between the people, speciically, the methods of a direct democracy, and the
government, in particular, a state authority supported by the military and
civil service, the superiority of the bourgeois parliament rests on the fact
that it is the site of a reasoned discussion. Monarchical absolutism is mere
power and command, arbitrariness and despotism. Direct democracy is the
rule of a mass driven by passions and interests. It is, as the liberal Burke
states and the liberal Bluntschli with hearty approval quotes (Allgemeines
Staatsrecht, I, p. 315), “the most shameless thing in the world.” Parliament
stands between and above both direct democracy and the monarchy as the
true mean, which in public discussion inds the reasoned truth and the
just norm. he discussion is the humane, peace-loving, progressive means,
the opposite of every type of dictatorship and authority. hat by way of a
rational discussion all conceivable oppositions and conlicts can be settled
peaceably and justly, that one can speak about everything and allow oneself
to speak with those like oneself is the world-view-like foundation of this
liberal parliamentarianism. [316]
Consequently, parliamentarianism is often rightly designated “government by
discussion.” Cf. in this regard, Carl Schmitt, Geistesgechichtliche Lage des Parlamentarismus [Crisis of Parliamentary Democracy, trans. Ellen Kennedy (Cambridge,
Mass.: MIT Press, 1985)], pp. 43, 57, 61, 62 [original edition]. See additionally Karl
Marx, Der 18. Brumaire des Louis Bonaparte. “he parliamentary regime,” Marx
argues, “lives by discussion. How should it prohibit discussion? Every interest, every
social institution is transformed into general ideas, considered as ideas.” On the
diference between genuine, rational, learned discussion and the social negotiation
and interest advocacy, cf. Schmitt, Crisis, p. 9 [original edition].
III. Practical consequences of the fundamental idea of the parliamentary
system.
1. he parliament represents the entire nation as such and, in this capacity, issues statutes by way of public discussion and public votes. In other
words, it produces reasonable, just, general norms, which provide for and
regulate the entire state life.
(a) he public quality of the negotiations is the core of the entire system.
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It is guaranteed through constitutional provisions. “he Reichstag deliberates publicly,” according to Art. 29, for example. Because they are public,
all deliberations are printed and published. his is also the case with Art.
30, according to which “accurate reports on deliberations in public sessions
remain free of any accountability.”
(b) he protection of deputies against criminal prosecution and against
limitations of personal freedom (Art. 37) is a right of the parliament as a
whole, not of the individual deputies. Even this privilege is only an individual consequence of the representative character of parliament. he historical occasions of this special position (arbitrary arrests of deputies by
the monarch) are by themselves alone no longer a suicient explanation for
that type of astonishing privilege.
(c) he committees of parliament only prepare materials that clearly
concern technical details. Beyond this, they are not at all signiicant and
contradict the essence of the parliament as an assembly that decides on the
basis of public discussion.
Among the diferences between the medieval estate principle and the modern
representative principle, Bluntschli, Allgemeines Staatsrecht, I, p. 488, enumerates
in particular the standing committees formed by the estates. “As a rule,” he points
out, “the modern state only knows the assembly of the representative body itself;
only a full public assembly can represent the people.”
(d) Transferring the parliament’s legislative authority to parliamentary
committees or to the government, delegation and [317] empowerment for
the issuance of statutes, is impermissible and unthinkable under a proper
understanding of the meaning of public discussion.
In his enumeration of the diferences between the estate principle and the modern representative one that was just mentioned, Bluntschli, Allgemeines Staatsrecht,
p. 485, argues that personal substitution is possible in the type of representation
by estates, while a substitution in the chamber, by contrast, is only possible insofar
as it is ordained “by the whole” representative body. he individual deputy cannot
allow himself to be represented. he chamber as a whole cannot delegate its powers,
irst because it is representative and not functionary, and because, as the arena of
public discussion and not a mere trading or business management oice, it enacts
measures. For an execution of measures, facilitating organizations would be selfevidently necessary and permissible. But the opposition of statute in the Rechtsstaat
sense and measure also demonstrates its fundamental signiicance in this context.
2. he individual deputy also has representative character.
(a) He is independent of his electors and not bound to orders and instructions (Art. 21).
(b) He has complete freedom from responsibility for all statements made
in the exercise of his profession (Art. 36).
He has this freedom from responsibility not as a tribune of the people, who receives immunity for political reasons. Also at work here, more precisely, is the idea
of the deputy as a person, who is independent and learned, not self-interested. his
he Parliamentary System
339
deputy is someone who stands above the oppositions of interests and who, in order
to be able to discuss freely, requires this immunity and earns it. he guarantee of his
freedom of speech presupposes that he genuinely speaks freely, that is, on the basis
of his own position, independent of commands and instructions and any inluences
that endanger his freedom. An instructed delegate or a compensated lobbyist does
not deserve such freedom of speech. For his protection, it is enough that the general
criminal law review of the perception of legitimate interests (§ 193 Strafgesetzbuch)
also apply to him.
(c) he deputy is not able to allow himself to be represented in the exercise of his mandate, while with a lobbyist one cannot understand why he
may not be recalled and replaced at any time by his client or why he may
not be served by any particular assistant and subordinate lobbyist.
(d) A person whose entire livelihood is dependent on or part of a certain organization may not become a deputy. In addition to the division of
powers or federal state organization noted above on p. 190, therein lies a
reason for certain incompatibilities found in the public law of many states,
particularly an incompatibility between civil servants and ministers. A further reason for such incompatibilities is the fact that the parliament should
be the bearer of all political life. his means the deputy [318] is essentially a
politician, while the civil servant should be neutral in partisan terms. he
Weimar Constitution expressly recognizes that in Art. 130, but, at the same
time, in Art. 39 (vacation for deputies who are civil servants) it favors the
deputies who are civil servants.
(e) he deputy may accept a payment for the exercise of his mandate
neither from his voters nor from the state. Hence, he must exercise his
oice on a voluntary basis and only receive compensation for his expenses.
his demand corresponds to the ideal that bourgeois liberalism made both
of the deputy as well as of voluntary oicial service.
In his overview of the diferences between the estate and representative principle, discussed above, Bluntschli enumerates the following: estate deputies were
accountable to their clients, and they were also compensated by them with room
and board; the modern deputy is only accountable to the state and receives the necessary room and board out of the state treasury. Art. 32a provides that “the members of the Reichstag may receive no pay or compensation as such.” According to
the dominant interpretation in theory and practice (Mohl, Laband, Zorn, since the
2nd ed. of his commentary also M. Seydel), the prohibition referred to pay and compensation out of public as well as private means. he Reich statute of 21 May 1906,
§ 1 (Reichgesetzesblatt, p. 467), changed this provision by stipulating that “Reichstag
members may draw no pay as such. hey receive compensation according to the
dictates of statute.” Parliamentary deputies received free railroad travel since 1873
(during the deliberation on the government’s emergency supplementary request
for compensation of the private railroads, the statute of 18 February 1874, Reichgesesetzesblatt, p. 15, Deputy Sonnemann declared the parliamentary grant unconstitutional!). Art. 40 of the Weimar Constitution provides that “Reichstag members
receive the right to free passage on all German railroads as well as compensation for
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he Parliamentary System
expenses according to the dictates of a Reich statute.” Compensation (indemnité) of
deputies out of the state treasury had already been introduced (Art. 68 of the Constitution of the Year III, 1795) in France during the great Revolution. From 1817 to
1848 (in the classic period of constitutionalism), by contrast, it counted as unconstitutional that the deputy received compensation for his activity. Since 1875, deputies
as well as senators have received a ixed yearly sum as compensation. Until 1911,
English members of Parliament received no room and board. he English courts
even treated the pay of Labor Party representatives from the unions as impermissible. Only since 1911, deputies drew a ixed sum (400 pounds yearly) from the state
treasury. Because members of Parliament grant themselves ixed income by way of
statute, their independence in regard to clients can be secured. If, at the same time,
the dependence on interest organizations in practical reality nevertheless persists,
the deputy thus remains a commissioned lobbyist, and even if the delegates of economic interest associations, syndicates, and secretaries appear in Parliament, the
resulting situation is that the state exclusively pays the interested parties for the
validation of their economic interests and, moreover, bestows on their attorneys and
agents the privilege of free passage on all railroads.
3. Decline of the ideal presuppositions of parliamentarianism in contemporary democracy. [319]
(a) Discussion erodes. Parliament in most states (the French Chamber
of Deputies may make a noteworthy exception, in some cases) today is no
longer the site of reciprocal rational persuasion, where the possibility exists
that a part of the deputies convinces the other deputies through arguments
and the decision is the result of the public, plenary assembly session. More
precisely, stable party organizations form a permanently present form of
advocacy by certain fragments of the voting masses. he individual deputy’s
standpoint is determined by the party; factional discipline inheres in the
practice of contemporary parliamentarianism; and individual outsiders
are insigniicant. he factions oppose one another with a precisely calculated strength in terms of the number of mandates. A public parliamentary
discussion is no longer capable of changing their interests or class-based
commitments. he discussions in the committees of parliament or outside
of parliament in so-called multiparty sessions are not discussion. hey are
instead business calculations and negotiations. In this instance, the oral exposition of positions serves the goal of a reciprocal calculation of the power
and interest groupings. he privilege of freedom of speech hence loses its
presuppositions.
(b) he public sphere erodes. he public, plenary assembly is no longer
the place where decisions are made on the basis of public discussion. he
parliament becomes a type of oicial who decides in secret deliberation
and announces the decision’s outcome in a public session in the form of
votes. Speeches of the diferent parties precede the vote, following a practice stemming from other times. he specialized committees in which the
decision is actually made are not always committees of the parliament itself,
he Parliamentary System
341
but rather meetings of party leaders, conidential, multiparty discussions
with the clients of the parties, the interest associations, etc.
(c) he representative character of parliament and of the deputy erodes.
Consequently, parliament is no longer the place where the political decision occurs. he essential decisions are reached outside of parliament. he
parliament thus functions as a bureau for a technical reconiguration in the
state apparatus of oicials. [320]
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he Parliamentary System
§ 25.
Historical Overview of the Development
of the Parliamentary System
I. Most important dates of the historical development in England (government by parties, responsible government, alternative government, cabinet
government).
1. From the king’s court, the Curia Regis, the Grand Council (Great Council
[Schmitt’s English]), developed since the thirteenth century through the addition
of deputies of the county districts and cities. he Grand Council divided itself into
an upper house (House of Lords) and a lower house (House of Commons), which
is a house of communities (of the enfranchised counties, electoral villages, etc.).
See above p. 295. It was signiicant for the development of the lower house that the
lower nobility, in particular the knighthood in contrast to the high nobility, met
together with the delegates of the bourgeoisie.
On the other hand, inside the grand council, a more select council of the king’s
conidants, known as the state council, is formed. Inside the grand state council
again, the most select circle of these conidants, the secret state council or cabinet (Privy Council [Schmitt’s English]) forms. he designations are not always in
harmony, even less is the public law meaning formally established. When the English kingdom edged toward absolutism (sixteenth century) and in the time of the
Stuarts, the cabinet was very similar to the council of an absolute king. he king
appealed to the members of this cabinet according to his discretion. A dependence
of the king on both houses of parliament did not exist and was not demanded.
he development of genuine parliamentary cabinet government irst begins as
soon as the basic principle of a political agreement between cabinet and parliament
is accepted and the judicial methods of political responsibility (ministerial challenge
through the lower house, prosecution by the upper house as state high court, socalled impeachment [Schmitt’s English]) recedes. he basic principle that cabinet
and parliament must agree initially develops unplanned and without principled intention with the ascension to the throne by the King of Orange. Often, therefore,
the year 1689 is designated as the beginning of the development of parliamentarianism, because the new King William III naturally took into his cabinet members
of the party that had called him to the throne. In partisan terms, the cabinet was in
complete harmony with the parliamentary majority for the irst time in 1695. For
these reasons, Hasbach, Die parlamentarische Kabinettsregierung, 1919, p. 45, designates this year 1695 as the “birth of the irst cabinet.” In the years 1700 and 1701, the
other party, the Tories, comes again into power in the parliament and the king takes
members of this party into his cabinet. Insofar as for the irst time the dependence
of the cabinet on the party then dominant in parliament; and to the extent that a
type of exchange of government and opposition party, or “alternative government”
[Schmitt’s English], is recognizable; this year may be designated as the beginning of
parliamentary government. Nevertheless, the king retained the authority to freely
appoint and dismiss members of the cabinet. He participates in all sessions of the
cabinet, chairs the sessions, and determines the guiding principles of policy. hat
changes beginning in 1715 because George I no longer participated in the cabinet
sessions, allegedly because he did not understand English, but in truth probably (cf.
Michael, Zeitschrift für Politik 1913, vol. 6, p. 577f.) because his interest in the political afairs of England was not great and he understood himself entirely as a German
elector. His actual inluence appeared to him not signiicant enough to take part in
the sessions. David Hume writes in his political essays [321]that appeared in 1742
that the consent of the king is “little more than a matter of form.” he government,
however, remains a royal government. Legally, the king (up until the current day)
retains all the government’s grants of authority and is only compelled to exercise
them through his ministers. Anson formulates it thusly: earlier, the king governed
through his ministers; now, the ministers govern through the king.
During the entire eighteenth century, the cabinet’s dependence on parliament
did not stand absolutely irm at all. Walpole still opposed the requirement of resignation in 1741. A change of the entire cabinet, based in solidarity, irst occurs in
1782. Pitt explicitly formulated the genuine premier system for the irst time in 1803.
According to this system, the head (leader [Schmitt’s English]) of the then current
majority party, as minister president, forms the cabinet out of party followers. During the entire eighteenth century, it is also an open question as to which part of
parliament, upper house or lower house, deinitively forms the cabinet. During the
nineteenth century, there is the irst instance of any cabinet receiving from the majority of the lower house a mark of disfavor, a vote of no conidence, or a disapproval,
either resigning or being compelled to attempt to create a new majority through
dissolution of the lower house and the calling of new elections. Even the practice
of dissolution of parliament and of new elections was initially deined in the nineteenth century, and after 1867 the perspective irst emerged that a government that
intends to carry out decisive innovations must allow the voters’ consent to be given
through a new election.
In the culmination of this historical development Parliament has become a mere expression of public opinion, which makes it dependent on
this public opinion. In regard to Parliament, the cabinet can produce a direct connection with public opinion, and, in particular, it can dissolve Parliament through royal decree and bring about a decision of the enfranchised
voters. According to Anson, the authority to topple the cabinet passed from
the king to the lower house and then from the lower house to the people,
that is, the voters.
2. For the political and public law evaluation of this development, it is
noteworthy that the lower house, which, in this regard, is the deinitive part
of the Parliament, was in diferent centuries, from 1700 until the current
day speciically, an assembly that was constituted entirely diferently in political and social terms.
Until the electoral reform of 1832, even the lower house was composed
of the parties of the dominant class, the Tories and the Whigs, and was an
overwhelmingly aristocratic assembly of the Medieval system, a “House of
Commons” [Schmitt’s English]. Counties, villages, corporations, large, enfranchised villages had the right to select a member, an electoral right that
was often determined according to bizarre historical accidents. he elec344
Development of Parliamentary System
toral reform of 1832 eliminated the electoral right of most small communities, in which the nobility or the Crown had simply determined their candidates, and granted a right of electoral participation to bourgeois property
holders [322], landowners, homeowners, those engaged in commerce. he
number of those entitled to vote rose from approximately a half million to a
million. Alongside the still more numerous nobles, now even attorneys determined the type of deputy. Nevertheless, even now the lower house was
still not a popular assembly in the modern democratic sense. he casting
of ballots remained public, but the deputy was still a person commanding
respect and mostly independent from his voters. However, soon a harbinger of a new parliamentary practice became evident: that a parliament was
compelled to resign by the voters. From the 1850s onward, the dependence
on public opinion counted as a basic principle. hrough the electoral reform of 1867 (Disraeli), the urban lower classes also received the franchise
(the number of those enfranchised rose to 2½ million). In 1884, agricultural
workers were enfranchised (now approximately 5 million with a right to
vote). According to both statutes, those adult men who pay a certain rent (in
the normal case 10 pounds sterling) for their living quarters were granted
the right to vote. A modern division of electoral districts came about for the
irst time in 1885. And beginning in the war through the statute of 6 February 1918, the franchise became general and democratic in the sense that all
men twenty-one years of age or over and, moreover, independent women
from thirty years of age have the right to vote without regard to landed
property or living quarters.
Consequently, the “parties” of parliament do not signify the same thing
in diferent periods. Until the year 1832, there were essentially two parties
within the dominant upper class, which were divided among themselves by
political and other diferences of opinion, such as those regarding landed
property or capital property, but not by deep-seated social ones. he distinction between Tories and Whigs generalizes itself into that between
conservatives and liberals, which initially does not signify genuine class
opposition. Instead, this distinction is rendered relative by the independent, enclosed unity of the nation that encompasses both parties, and, as
such, it presents only diferences of opinion, not a friend/enemy grouping.
A deeper opposition and a genuine heterogeneity irst arose when an Irish
national party formed and became obstructionist. Nevertheless, this party
was not strong enough to transcend the two-party system of conservatives
and liberals and to emerge as an equally signiicant third party. Moreover,
this party is again excluded with the formation of an [323] Irish Free State
(Treaty of 6 December 1921). A third party in the full sense irst appears
after 1900 with the Independent Workers’ Party (Independent Labour
Development of Parliamentary System
345
Party [Schmitt’s English]). Hence, a new social element, potentially even
a genuine class opposition, emerged. Moreover, the simple two-party system, with its alternative exchange of majority (government) and opposition
party, was disrupted. he elections of December 1923 (customs union election) led to a three-party system, Conservative, Liberal, and Labour Party,
and to the formation of a Labour government (Macdonald). he elections
of 29 October 1924 temporarily eliminated this circumstance. he Conservative Party received an absolute majority in the lower house, so the new
government was again in line with the traditions of the two-party system.
Nevertheless, one must not fail to see that this electoral result of 1924 is
attributable to an electoral system that facilitated a great disparity between
mandate numbers and vote count. In the electorate itself, the three-party
system was not at all disrupted.1
3. A stable concept of parliamentary government cannot be derived
from this English development. here is a series of precedents that are interpreted diferently according to political circumstances, and about which
one can only say that on the whole during the nineteenth century a sovereign Parliament is, indeed, deemed deinitive. But the responsibility for
providing political direction lay with the cabinet, and the political decision
resided with the voters. In the diferent stages of this development, [324]
various designs, schematizations, idealizations, and interpretations of English parliamentarianism arose from English as well as from other authors
and served the liberal bourgeoisie of the European continent in the struggle
against princely absolutism. In the eighteenth century, Montesquieu, who,
incidentally, was fully conscious of the historical and political imprecision
involved, construed from the English constitutional circumstances the ideal
of the constitution that distinguishes among powers (Esprit des lois, XI, 6).
In reality, there was a close connection between government and parliament, which is the opposite of a “division.” Elsewhere than in the famous
chapter 6 of the eleventh book (book XIX, 27), Montesquieu already names
two essential elements of this system, the two-party system and the obligation of the monarch to take his ministers from the dominant party. In this
context, incidentally, the construction of the two-party system also contains
a signiicant simpliication, because more often there were several parties,
transitional groupings, and coalitions. In the nineteenth century, one often
understood the parliamentary government in outline form as a subordination of the government under the parliament, whereas under the English
system the prime minister leads the parliamentary majority and the Parliament can be dissolved when it fails to maintain its following. Since 1867, it is
no longer the Parliament but rather the electorate that deinitively serves as
the bearer of public opinion. he cabinet (the more selective council of min346
Development of Parliamentary System
isters inside the ever larger ministry) directs policy and exercises the right of
legislative initiative. Finally, the Parliament is still only the point of connection between the electorate and the government. It does not exert political
leadership, nor does it render a political decision in the case of conlict.
4. Regarding the idealization and simpliication of English parliamentarianism and the attempts to imitate it on the European continent, eminent academics and writers stress the presuppositions of this English system.
See, for example, Friedrich J. Stahl, Parteienlehre, p. 144f; Lothar Bucher, Der
Parlamentarismus, 2nd ed., p. 144; J. Barthélemy, L’introduction du régime parlementaire en France, Paris 1904, p. 146f; Schmoller, Schmollers Jahrbuch 1917, vol.
41, p. 1123f.; and Erich Kaufmann in his essay “Die Regierungsbildung im Reich und
in Preussen,” Die Westmark 1921, p. 208f.
he efect of such undoubtedly correct indings is generally slight because the English Parliament in the nineteenth century [325] became a
mythical image for a great part of the liberal bourgeoisie, for whom the
important thing was not historical correctness and accuracy. Nevertheless,
a few of the most important ideal presuppositions of English parliamentarianism are briely mentioned here.
(a) A two-party system is the irst of these presuppositions. he leader
of the majority party forms the cabinet. If he loses the majority, the leader
of the other party, the opposition party, forms the cabinet. his simple exchange of majority and minority, government and opposition, ceases when
a strong third party appears and coalitions are necessary to form a majority.
A widely held view in England is that a coalition government is something
abnormal and the coalition government of the year 1915 as well as the subsequent governments have been justiied only by the special conditions of
the war and the postwar period. he surprising victory of the Conservatives
in October 1924 is often attributed to the wish of the English people to return to the old two-party system with simple parliamentary majorities.
(b) From the two-party system results an additional presupposition:
homogeneity of the transitory majority and of the cabinet.
(c) he parties are leadership parties in the grip of prestigious politicians, leaders whom they follow and who are in the position to determine
the guiding principles of politics under their own responsibility and to
form a homogenous ministry from the party faithful. his accounts for the
solidarity of the entire cabinet, which means all ministers resign when the
prime minister steps down. As soon as a bureaucratized party apparatus
enters in place of the political leader, with all its employees, secretaries, invisible contributors, etc., the minister is more or less dependent like every
party member. He is the exponent of an organization, not a leader, and, as
such, also not in the position to assume political responsibility.
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347
(d) Elections are single-member district elections. Each electoral district
elects a candidate with a relative majority and without a runof. his means
a noticeable disparity can result between vote count and mandate igures,
as during the election of October 1924. he single-member district election
makes possible a personal relationship between the electorate [326] and
a recognized leader. Even if the election orients itself around substantive
questions, such as protective tarifs or free trade, there is always a genuine personal relationship to a leader, who is being acclaimed through the
election. he system of proportional representation, by contrast, eliminates
the personal relationship. he power of the party organizations becomes
stronger, and the parties compose the candidate list, on which are only a
few names known to the voter, who casts a ballot for a party and a list or, according to the optimistic interpretation (above p. 239), for an idea. Minorities and splinter parties are taken into account to a great extent. Despite
this noticeable disparity between voter count and mandate igures, English electoral law remains committed to the basic principle of the singlemember district election. Under this electoral system, it is even possible to
monitor the shifts of public opinion through repeat elections, while under
the system of proportional representation with candidate lists repeat elections do not occur. Lost with these repeat elections is an important distinguishing characteristic for the determination of public opinion.
(e) he parties are parties in the genuine sense of the word, that is, in
terms of a design centered on free competition, not stable organizations of
masses that are bound to interests or indeed composed along class lines.
he opposition of parties may be in no sense absolute and never rupture
the framework of national and social unity. A discussion between parties
is only possible so long as common premises are at hand. Even reasonable
compromises and a loyal exchange of both parties could then only be established if these parties do not intend to abolish or disqualify one another, but
instead conduct themselves according to the rules of fair play. However, as
soon as absolute oppositions emerge and confessional, class, or national
diferences become deinitive for the party will, this presupposition no
longer applies. he great success of the Conservatives during the elections
of October 1924 is certainly explained mostly by the need to express clearly
the fundamental presupposition of English parliamentarianism in contrast
to a socialist class concept. his need, more speciically, is for political unity
on a national foundation.
II. he course of development in France and Belgium. he most important diference concerning developments in France and Belgium vis-à-vis
those in England lies in the fact that certain formulas are applied to the parliamentary system and constitutionally set in place. Nevertheless, [327] this
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Development of Parliamentary System
constitutional solidiication cannot entirely comprise political life. In the
states of the European continent, consequently, a public law practice and
custom has developed alongside the written legal text, which generally irst
gives to the written formulas their content and shows that despite the constitutional norm new and divergent formations of this system constantly
emerge.
1. he constitutions of the French Revolution still do not include parliamentary
government. he constitution of the year 1789 rests on the basic principle of the
separation of powers, and thus places itself in conscious opposition to a parliamentary government. he Constitution of the Year III (Constitution of the Directorate of
1795) is exactly the same. he Constitution of the Year VIII (1799), indeed, requires
a countersignature for governmental acts by a minister and provides that no incompatibility exists between the position of the minister and that of the deputy, so that
a closer connection between government and parliament is possible. Nevertheless,
these possibilities and approaches of a parliamentary constitution did not unfold in
the absolutism of the Napoleonic regime.
2. With the end of the Napoleonic rule in 1815, by contrast, a program of parliamentarianism, constituted according to English models, was immediately established, and its literary heralds were Chateaubriand and Benjamin Constant. he
Charte of 1814 speaks of a ministerial responsibility in terms of high treason and
bribery. herefore, it only establishes responsibility that accords with judicial forms.
But the quality of judicial forms is irreconcilable with the essence of direct political
inluence. In 1816, Chateaubriand developed the principles of parliamentarianism as
uniied ministry (système homogène) with collective responsibility in regard to the
majority of the Chamber of Deputies, because this “is the most important organ of
public opinion.” he ministry must address the chamber, answer to it, and resign if it
does not ind a majority. he practice of Louis XVIII took the chamber majority into
account. His successor, Charles X, was overthrown by the July Revolution of 1830.
he constitution of 1830 did not contain a new express provision on the dependence of the government on parliament. Instead, it only repeated the Charte of 1814.
Nevertheless, the basic principle of a constant regard for the transitory parliamentary majority evolved, and the government of Louis-Philippe counted as an example
of a parliamentary monarchy. hat could not prevent violent diferences of opinion
on the king’s powers to arise. According to Guizot, it was enough for parliamentarianism that the ministers were responsible and that otherwise there remained
an opportunity for the king to carry out his political understanding, while in 1829
hiers had already announced the formula, which he repeated in a famous 1846
chamber debate, that “le roi règne et ne gouverne pas.” he king, more speciically,
must abstain from exerting any substantive inluence on policy. [328] he controversy, which is also of interest for the current parliamentary conditions in Germany,
and which shows the ambiguity of the turns of phrase involving “responsibility,” was
not carried to a conclusion, but was instead settled by the collapse of the bourgeois
monarchy in the Revolution of 1848.
3. he Belgian constitution of 1831 also counts as a constitution of a parliamentary monarchy, although in regard to the constitutional text it is little diferent
from a constitutional monarchy of the German variety. “he distinction rests not
on statutory language; it lies, rather, in the application of the constitution to the
national public life. It is a rule of a customary character and lives in the spirit of
Development of Parliamentary System
349
the constitution. he letter of the law says nothing about it” (Errera, Das Staatsrecht des Königreichs Belgien, 1909, p. 58). According to the constitutional rule (Art.
63, 64), the ministers are responsible, and they assume responsibility through their
countersignature of the king’s documents. hat suiced as the legal foundation for
a parliamentary government. However, “responsibility” means a form of political
dependence in contrast to that validated in a formal judicial procedure (petition of
the Chamber of Deputies before the Court of Appeals according to Art. 90), a type
of political responsibility whose presuppositions and efect were not more closely
regulated. But from this political responsibility one discerned the necessity of an
agreement between cabinet and chamber majority and the duty of the king to form
a new ministry “after a vote of no conidence in a rather signiicant question” as
well as after a change of opinion made evident by an electoral collapse. Essentially,
everything is customary practice.
4. he French constitution of 1848 created the oice of a state president, who
should be independent in regard to parliament. he constitution demanded the
countersignature of the ministers for the oicial activity of the president, but at the
same time it declared the state president “responsible.” From this direct responsibility of the president one could conclude that the president has independent political powers, because his responsibility would only receive content through the
independent grants of authority. his lack of clarity, which is very characteristic of
the parliamentary system, led to passionate discussions over how far the direction
of policy was granted to the president and what his “responsibility” actually meant.
he National Assembly claimed to dominate the “political system” and alleged that
this dominance was part of the essence of a parliamentary government. When the
legislative assembly expressed disfavor to the ministers, the state president dismissed the ministry. In doing so, however, he emphasized that he was independent in his political decisions because he was responsible. his interesting controversy was not brought to a conclusion; it was efectively settled by the coup d’état.
Louis Napoleon dissolved the National Assembly on 2 December 1851, although the
dissolution was constitutionally prohibited. According to the new constitution of
14 January 1852 [329], which was sanctioned by a popular vote, Napoleon III was
the director of French politics, irst as president, then as emperor. he constitution of 1852 was expressly antiparliamentary. he ministers were responsible only
to the head of state, and there was no ministerial solidarity as a whole. Nevertheless, concessions to the parliament were gradually granted. Initially, parliamentary
“addresses” were permitted in response to the emperor’s annual speech from the
throne. he Senatus-Consult of 8 September 1869 states that “the ministers are dependent only on the emperor. hey are responsible. hey can only be forced out by
the Senate in an impeachment proceeding.” he lack of clarity of these principles
is obvious. Shortly before the outbreak of the war of 1870, the full responsibility
of the ministry was recognized in the constitution of 21 May 1870 (Art. 19). hat
counted as the introduction of a parliamentary government, although at the same
time the emperor’s independent responsibility was again emphasized. he emperor
is “responsible to the French people” (Art. 13). he controversy also did not come to
a conclusion. After the military defeat, the empire was eliminated on 4 September
1870.
5. he French National Assembly that convened in 1871 installed hiers as “Chef
du pouvoir exécutif.” He was, in fact, a minister president responsible to parliament, who appeared before parliament, and yet who on 13 March 1873 introduced
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a statute substituting ministerial responsibility for direct presidential responsibility.
his principle entered into the constitutional laws of 1875. hese laws provided a
state president as president of the republic and allowed him to be elected by the
National Assembly, but still bound him to the countersignature of the ministers.
he parliamentary government is recognized in the constitutional law of 25 February 1875, Art. 6, with the words: “Les ministres sont solidairement responsables
devant les Chambres de la politique générale du Gouvernement et individuellement
de leurs actes personnels” [Ministers are collectively responsible to the Chambers
for general policy and individually for their personal actions]. he president is only
responsible in the case of high treason. He appoints and dismisses ministers, has the
right to send emissaries to parliament, and can compel a second reading of a statute.
Art. 5 of the Constitutional Law of 25 February 1875 grants him the legal authority to
dissolve the Chamber of Deputies with the consent of the Senate. But these powers
of the state president lost their political signiicance and did not lead to the fact that
the president can exert a substantive inluence on the “politique générale.” Most of
the four French state presidents who resigned before the expiration of their terms
of oice, Mac-Mahon 1879, Grévy 1887, Casimir Périer 1895, and Millerand 1924,
resigned partly because the lack of political inluence of their position seemed unbearable to them.
Not only the state president, but also even the ministry itself, was limited vis-àvis the Chamber of Deputies in terms of the independence of political leadership.
In France, there is undoubtedly a strong tendency to practice parliamentary government such that the chamber majority dictates to the ministers every important
position, [330] whereby more often political decisions came about in a committee
of the parliament, which then, in fact, was a ministry. he constitutional norm is
not exactly an unalterable blueprint. Parliamentary government can mean both political rule of the parliament as well as the direction of politics by a minister president. he policy of Minister President Poincaré sufered a defeat in the elections
of 11 May 1924. he electorate declared itself against Poincaré and for the radical
socialists. Nevertheless, without another election, Poincaré could form a new cabinet on 23 July 1926, which, indeed, included a few radicals, though it still stood
under his political leadership. By not shying away from posing the cabinet question
very often, he could carry out his will in opposition to a chamber that was indecisive and splintered into many parties. Even for the parliamentary government in
France, therefore, neither the written constitutional text nor the clear content of a
irmly established practice is suicient to give an unequivocal sense to the concept
“parliamentary government.” One cannot tell whether the state president, minister
president, or the chamber majority determines the guiding principles of policy from
the fact that a constitutional regime intends to introduce a “parliamentary government.”
III. he course of development in Germany.
1. he German constitutions of 1815 to 1848 correspond to the monarchical principle as the Vienna Federation Acts of 1815 and the Vienna Concluding Acts of 1820 presented it (above p. 211). he “estates” had a right of consultation in legislation, even the authority to approve taxes. here was no
responsibility or, indeed, dependence of the princely government in regard
to these estates. he ministers were servants of the prince and nothing else.
he 1848 Revolution made the issue in most German states either a constiDevelopment of Parliamentary System
351
tutional stipulation of constitutional monarchy (as in Prussia) or, insofar as
“constitutions” already existed, extensions or changes establishing a ministerial responsibility. Despite this success, the revolutionary movement of
the year 1848 did not lead to a parliamentary government. he king of the
German-style constitutional monarchy retained political leadership and direction and could also not be forced out of this position by the powers of
parliament (consultation in legislation and budgetary rights). If the parliament fails, the king can “withdraw into his state authority” (Max von Seydel). Friedrich J. Stahl established the distinction between constitutional
and parliamentary [331] monarchy (above p. 289). he liberal opponents
of this system designated it “sham constitutionalism.” Nevertheless, in the
German state literature of the nineteenth century, only Robert von Mohl
seeks to justify a parliamentary government (above p. 313).
In Bavaria, of course, the estate constitution of 1818 did not recognize ministerial
responsibility before the estates at all. A statute of 4 June 1848 expanded this constitution, introducing this responsibility and providing for the countersignature of
ministers for acts of the king. “A state minister or his deputy,” it reads, “who violates
state statutes through his actions or failure to act is responsible to the estates of the
Reich.” But the ministers nevertheless remain the servants of the king and dependent on his conidence. he newly introduced responsibility refers only to illegalities, not to political leadership as such. his responsibility is regulated such that the
chambers can impeach a minister who is accountable for violation of state statutes
before a state high court (on this, see Seydel, Bayerisches Staatsrecht, 2nd ed., I.,
1896, p. 517f.). A Bavarian statute of 30 March 1850 regulates the procedure of this
state high court. Saxony (§ 141f. of the constitution and statute of 3 February 1831)
and Württemberg (chapter 10) deinitively set this judicially formal responsibility
only for constitutional violations. Baden did so (statute of 20 February 1868) for
intentional or grossly negligent violations of the constitution, for violations of rights
recognized as equivalent to constitutional laws, or for serious endangerment of the
security and welfare of the state. his last fact already passes over into the political.
Yet the procedure remains formally judicial and thus loses its political force.
In Prussia, Art. 44 of the constitution of 31 January 1850 provided that “in order
to be valid, all governmental acts of the king require countersignature of a minister, who thus assumes responsibility.” hat is designated as political responsibility
in contrast to responsibility under criminal law. It does not constitute dependence
on the parliament, however. he minister remains the servant of the king (Art. 45).
Each of the two chambers (House of Lords and House of Deputies) can demand the
presence of the ministers (Art. 60). One of the two chambers can decide to impeach
ministers “because of the crime of constitutional violation, of corruption, or of treason” before the monarchy’s highest court of law. But the “instances of responsibility,” the procedure and the criminal sanction, should irst be regulated in a special
statute (Art. 61, 2). Because this statute was not established, the chambers were not
able to exercise their impeachment authority and responsibility became practically
meaningless (on this, see Bismarck in the House of Deputies, Stenographischer Bericht II, p. 952; additionally, the supreme report of 26 May 1863, ibid., p. 1322). [332]
Responsibility in formal judicial terms was never instituted. It still came down to the
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Development of Parliamentary System
fact that the entire realm of the king’s military command authority was granted an
exception from the requirement of ministerial countersignature. he political inluence of the parliament on the government could only validate itself by way of a rejection of the budget and of credits. Even this attempt misired during the Prussian
conlict between the House of Deputies and the government from 1862 to 1866. he
House of Deputies refused to consent to the budget, but the government continued
to conduct business without a budget and, indeed, declared governing without a
budget not a normal circumstance, but also not unconstitutional, because there was
simply a “gap in the constitution.” his “theory of gaps,” presented above all even by
Bismarck in the deliberations of the provincial legislature, became accepted constitutional law after Bismarck’s victory in Prussia and in the Reich. On this, compare
Anschütz in Meyer-Anschütz, p. 906: “Only one thing is certain, the constitution
does not intend, cannot intend, that the life of the state stands still during the imminent situation without a budget.” If, however, no agreement on the budget comes
about between the highest state organs, he continues, “there is not so much a gap
in the statute law (that is, in the text of the constitution) as, more accurately, a gap
in the law that no conceptual operations of legal scholarship can ill.” “Public law
stops at this point,” Anschütz concludes, “so the question of how to proceed in the
absence of a budgetary statute is not a legal question.” In fact, it involves a question
of sovereignty. Anschütz’s response avoided answering the question.
2. For the German Reich under Bismarck’s constitution of 16 April 1871,
Art. 17, 2, provides that “the orders and instruments of the Kaiser are issued
in the name of the Reich and their validity requires the countersignature of
the Chancellor, who thus assumes responsibility.” he Chancellor, as individual Reich minister, was the sole bearer of this responsibility. Of course,
the “responsibility” in itself does not establish a parliamentary government.
he Reichstag’s authority to refer petitions to the Bundesrat or to the Chancellor (Art. 23a) ofers an opportunity for an elaboration of “accountability”
to the same limited degree as the right of parliamentary inquiry and the
right to direct addresses to the king. hese authorizations could have become efective means of political inluence through practice and custom
and were designated “pseudo rights” by the quasi-oicial public law theory
and mockingly placed on a level with the right to “give a cheer to the Kaiser”
(Laband, I, p. 309). Even the emerging conidence or lack of conidence
pronouncements of the Reichstag (since 1908) [333] did not count as “public law functions.” he question of the Chancellor’s responsibility in regard
to the Reichstag was confused, moreover, by the fact that the extremely
complicated system of the division of jurisdiction between Reich and individual states was partly corrected, and yet still made more complicated, by a
practice of personal unions of important Reich posts (Chancellor and State
Secretary) with those of the Prussian ministries and Bundesrat delegates.
In the federal budget law, only the Bundesrat, and not the Chancellor, engages the Reichstag (E. Kaufmann, Bismarcks Erbe in der Reichsverfassung,
1917, p. 63).
Development of Parliamentary System
353
he Reich Constitution of 1871 never contained provisions on the formal
judicial responsibility of the minister, as they are otherwise found in the
constitutions of the constitutional monarchy. A petition by Bennigsen to
accept the amendment that “the responsibility and the procedure to validate
it are regulated by a special statute” was rejected in the Reichstag when it
was deliberating on the constitution (Stenographischer Bericht, p. 342). Bismarck saw the signiicance of Art. 17 and the “responsibility” it establishes.
he Chancellor, who originally was thought of as the “undersecretary for
German afairs in the Prussia Foreign Ministry,” now was “promoted” to
the position of a “leading Reich minister.” Max von Seydel designated this
responsibility of the Chancellor as an “empty formula” in the irst edition
of his commentary on the Reich Constitution, but corrected this characterization in the second edition (1897, p. 178), because Art. 17 involves less
the relationship of the Chancellor to the parliament than to the Kaiser. In
regard to the Kaiser, it secures for the Chancellor a ministerial autonomy.
If the liberal and democratic parties of the German Reichstag sought to
achieve inluence over the policy of the Reich government, an extraordinary argument could be made against the most modest eforts at a “parliamentarization of the Reich government,” an argument that did not come
into question in the individual German states: the irreconcilability of a parliamentary government with the federal structure of the German Reich.
he “irreconcilability of parliamentarianism and federalism” is often put
forth as a generally valid principle. hat the United States of America also
does not recognize a parliamentary government seems to conirm the irreconcilability (E. Kaufmann, Bismarcks Erbe, pp. 69/70). [334] Whether an
absolute incompatibility exists genuinely now between parliamentarianism
and federalism need not be decided here. In fact, the logic of the democratic principle of identity, not parliamentarianism, eliminates the state independence of the member states (see p. 390 below). At least for the German Reich under Bismarck’s constitution, the irreconcilability counted as
oicial doctrine. A Prussian declaration in the Bundesrat of 5 April 1884
and a message of the German Kaiser to the Reichstag on 30 November
1885 (Hirths Annalen des Deutschen Reiches, 1886, p. 350) referred to the
fact that a government controlled by the elected parliament is ill suited
for the direction of a great people and is dangerous for a Bundesrat resting
on contract in particular. hrough a parliamentarization of the Reich government, the Reichstag elected by the entire German people would have
obtained deinitive inluence on the political leadership and the federal authority would no longer have been a power wielded by the allied princely
governments. Here one perceived the risk of the German Reich disintegrating. Even under the perspective of the monarchical homogeneity of the
federation, a parliamentary Reich government appeared suspect. he dis354
Development of Parliamentary System
cussions and struggles around the Prussian right to vote are from both sides
also struggles for the substance of homogeneity, without which no alliance,
whether it is a federal state or a federation of states, is possible.
3. During the World War, the German Reichstag’s inluence on the political leadership increased as the military and foreign political situation
worsened. It became evident that the dualism of the constitutional monarchy certainly could function in peaceful and settled times. Such periods also
encouraged the view that the decisive question could be permanently suspended, and yet any critical situation revealed the untenability of this opinion. he occasional advances of the Reichstag (in 1908, the so-called crisis
of the “personal regime” of Wilhelm II, in 1913 the Zabern case) toward
greater authority, were, indeed, unsuccessful, but they are signiicant as
a symptom because they let it be recognized that the natural tendency
toward parliamentary government was ever present and only deferred as
long as the afterefect of Bismarck’s extraordinary achievement lasted. By
contrast, the opposition against this tendency relaxed to the same degree
that the government [335] was unsuccessful in foreign policy terms and was
inally defeated. One can certainly not compare the German, in particular
the Prussian monarchy, with the monarchy of Napoleon III. Nevertheless,
an immanent logic of constitutionalism emerges, which is the same in both
cases. An expansion of parliamentary power is the domestic political consequence of any military or foreign policy disappointment for a government independent of parliament.
Only in the year 1917 did a theoretically interesting discussion about parliamentarianism occur in Germany, one that had a prospect of practical
success (cf. the literature in Anschütz, Meyer-Anschütz, p. 1027). In a few
now-famous essays in the Frankfurter Zeitung (May/June 1917), Max Weber
made a series of suggestions. hese included the elimination of Art. 9a of
Bismarck’s Reich Constitution (the article that established incompatibility
between the position of a Reichstag deputy and a delegate in the Bundesrat,
so that a Reichstag deputy could not be Prussian minister president, a delegate in the Bundesrat, and Chancellor without renouncing his mandate)
and the elaboration of the Reichstag’s right of inquiry and the formation
of a crown council, to which parliamentarians should belong, in order to
personally advise the Kaiser. Max Weber at that time did not demand a
parliamentary government in the sense of a government dependent then
on the conidence of parliament, still less the elimination of the monarchy.
hese essays (which in 1918 were brought together in the volume “Parliament and Government in the Reordered Germany”) had great inluence on
the originators of the Weimar Constitution and are a noteworthy source for
the evaluation of this constitution in state theory terms. What Max Weber
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355
man party leader in England. Because of the peculiar character of German
parties and the splintering of the party system, this party leader ideal necessarily becomes problematical. he continuing theoretical discussion did
not misconstrue the diiculty at all. A treatise by R. Piloty on “he Parliamentary System” (1917) declared it a basic ideal of this system that “only
party guidance at the rudder could then be permitted.” “If one admits all
parties and, moreover, all opposing positions on equal terms, then one
simply rejects this system,” he concludes. But even Piloty’s interpretation of
the parliamentary system inclines toward granting government authority
to the leaders of powerful parties, [336] in order to make their party into the
government’s program and, by this action, to test themselves together with
their program in the leadership of the afairs of the state.
On 19 July 1917, the Reichstag’s claim to political supervision of the Reich
government was thrust to the fore in the so-called “Peace Resolution.” he
majority (Center, Progressive Party, Social Democracy, and the left wing of
the National Liberals) formulated that famous resolution. “he Reichstag,”
they declared, “strives for a peace of understanding among and lasting reconciliation between peoples. Coercive territorial acquisitions and political,
economic, and inancial assaults are irreconcilable with such a peace.” Also,
there was a demand for the introduction of general sufrage in Prussia, a
demand showing how little constitutional limitations and considerations
mean here, for in the federal state structure of the Reich such an interference of the Reichstag in Prussian afairs was certainly hardly permissible. he Chancellor Bethmann-Hollweg was dismissed on 14 July 1917.
he Kaiser appointed his successor, Michaelis, without letting the Reichstag be heard beforehand or taking its sentiment. But in August 1917 the
new Chancellor formed a committee composed of seven leading Reichstag
deputies and seven delegates selected from the plenum of the Bundesrat,
initially only in order to debate the German answer to the papal peace note.
Several already saw in this an acceptance of Max Weber’s suggestion that
a crown council should be formed. Nevertheless, the growing inluence of
the Reichstag only involved the civil government, while the authority for
command and leadership of the army, what mattered during such a war,
naturally remained in the hands of the Kaiser. he subsequent Chancellor,
Count Hertling, already had been appointed in agreement with the parliamentary parties and came to an understanding about his government
program with the ruling party coalition before entry into oice. he Kaiser
named his successor, Prince Max von Baden, the last Chancellor of Imperial Germany, not entirely according to the customs or rules of a parliamentary monarchy. “I wish that the German people would collaborate
more actively than before on the determination of the destiny of the fatherland,” reads the Kaiser’s proclamation on the dismissal of Count Hertling
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Development of Parliamentary System
from 30 September 1918. “Consequently, it is my will that men who are
borne by the conidence of the [337] people participate in broad scope in
the rights and duties of the government.” hen followed a request to Count
Hertling to make suggestions to his successors. Prince Max von Baden remarks on this procedure in his “Remembrances and Documents” (Stuttgart
1927, p. 328, 329). he correct procedure is that an invitation must be issued
to the parliament to deliberate on the convening of the new government,
before their leader is installed. “In all democratically governed lands of the
West,” he writes, “the prime minister has a free hand in the selection of his
colleagues. hrough this initiation of the revolution from above, the idea
of the leader was given up.” On 3 October 1918, Prince Max von Baden
was named Chancellor, and, on 5 October, he appeared before the Reichstag, communicated the guiding principles of his government’s policy, and
posed the question of conidence.
he constitutional changes that expressly introduced parliamentary government in its complete form into the Reich occurred during the last hour
of 28 October 1918 (Reichgesetzesblatt, pp. 1273/74): “For the conduct of his
oice, the Chancellor needs the conidence of the Reichstag.” At the same
time, the Reichstag’s jurisdiction was expanded to include consultation in
the declaration of war and the conclusion of peace and the requirement of
the ministerial countersignature even in the appointment, promotion, and
transfer of the highest oicers of the provincial army, as well as the oicers
of the leet. In a message, the Kaiser declared himself expressly in agreement and said that “after the completion of the war” the German people
would have “a right to claim that no right be withheld that would guarantee them a free and happy future.” he Bundesrat and a single Chancellor
system are retained in these statutes, but the incompatibility between the
Bundesrat and Reichstag (Art. 9a) is eliminated.
hese constitutional laws came about without opposition that is worth
mentioning. hey could no more delay the transformation and save the
Reich than the establishment of parliamentary government on 21 May
1870 (above p. 329) could have prevented the fall of the Napoleonic Empire. Nevertheless, the phrasing of these statutes is also signiicant for the
Weimar Constitution. For the expression “the Chancellor requires the conidence of the Reichstag for the conduct of his oice” is incorporated into
Art. 54. While the political and constitutional developments in France and
Belgium built the parliamentary system on a “responsibility” [338] of the
government, the dependence on the conidence of the Reichstag became the
formula for the parliamentary system in Germany.
After a half century, therefore, all the demands of the German liberal
bourgeoisie of 1848 and from the period of the conlict of 1862 to 1866 came
to fruition. he great success of Bismarck’s policy had held them up for two
Development of Parliamentary System
357
generations. Now, their demands were realized, but meanwhile the political
and social situation was fully changed and their fulillment acquired a different sense than it would have had ifty years before. he opposing player,
a strong monarchy, had fallen, and the success that the German bourgeoisie
had achieved with the introduction of parliamentary government in Germany was in a certain sense enjoyed posthumously.
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Development of Parliamentary System
§ 26.
Overview of the Possibilities for the
Formation of the Parliamentary System
I. he decisive consideration is the agreement between parliament and government. his involves the elimination of the “dualism” that Robert Mohl
had discussed (above p. 313). he agreement can mean something diferent
in concrete reality. It can be a “irm connection,” as Hugo Preuß said in the
debates on the Weimar Constitution (Protocol, p. 300), or only a general
harmony of the political tendency in its entirety. Moreover, it can be produced by an express subordination of the government to the parliament or
of the parliament to the government. All these diferent, indeed contradictory, political possibilities are designated by the name “parliamentary
system.”
II. Means of producing the agreement. In this regard, the following comes
into consideration:
1. Right of the parliament to
address the government; right of
parliamentary inquiry; right to
demand the presence of ministers;
right to demand explanations of
ministers
2. Indirect opportunities for
inluence through use of other
constitutional authorities, such
as (a) the refusal to consent to
government’s statutory proposal,
(b) budget law opportunities,
especially the denial of constitutionally necessary consent to the
annual budget and denial of the
credits demanded by the government, or (c) the right to form
investigative committees
In general, is not suicient to
produce “parliamentary” government. [339]
Was also not suicient in Germany to produce parliamentary
government.
3. Constitutional determination of the responsibility before
the parliament of ministers who
countersign acts of the government
4. Constitutional determination
of the dependence on the conidence of the parliament
Suicient in France, Belgium, and
Italy to produce parliamentary
government, but not under the
German constitutional monarchy.
he speciications of German parliamentary government: statute of
10/28/1918; Draft I of the Weimar
Constitution of 1/3/1919 (§ 65,
Triepel, Quellensammlung, p. 9);
Draft II of 1/20/1919 (§ 70, Triepel,
p. 16); Draft III of 2/17/1919 (Art.
75, Triepel, p. 25); Art. 54, Art. 17.
III. “Instances” of parliamentary responsibility. Even if responsibility or
dependence on the conidence of parliament is established constitutionally,
the factual circumstances attached to this responsibility or dependence,
especially the duty to resign, may vary greatly. he formal parliamentary
decision by which the lack of conidence in the government is expressed
always stands between these factual circumstances. hat should be designated as the “fall of the cabinet.” he word “fall” should be used (even if it
is not entirely exact), as in “outbreak of war”1 or “collapse of the alliance”
(casus belli oder casus foederis), to emphasize the political circumstance
that results in a particular political outcome.
In such “cases,” the following comes into consideration (from the strongest and
most explicit case to the weakest indicator):
1. direct removal by parliamentary decision; [340]
2. express request to resign;
3. explicit withholding of a conidence declaration, if this is constitutionally prescribed;
4. express assignment of blame (vote of censure [Schmitt’s English]) or
general disapproval (in contrast to assignment of blame or disapproval of individual actions);
5. explicit vote of no conidence to which the constitutional duty to resign
is bound (Art. 54);
6. explicit vote of no conidence without a constitutional foundation
(French or Belgian practice);
7. rejection of a conidence declaration that is demanded by the government;
8. denial of a conidence declaration that is moved by a party;
9. explicit disapproval of a single action or abstention from action by the
government;
10. rejection of an approval motion in regard to a single action or abstention from action;
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Formation of Parliamentary System
11. denial of a government draft law (presupposes, as in England, that the
government exclusively exercises the initiative; otherwise Art. 68);
12. rejection of any government motion;
13. other votes of the parliament that may end in lack of conidence or disapproval, such as the initiation of an investigative committee, demand for the
presentation of documents, challenging “the integrity or legality of governmental actions” (cf. Regierungsvorlage Entwurf I to Art. 34);
14. without special vote of the parliament,
(a) new elections (cf. above p. 266)
(b) dissolution of the party coalition hitherto supporting the government (up to now that has been most frequently the case in the contemporary German practice of the parliamentary system).
Moreover, every afair of the cabinet can be made into “a question of the
cabinet,” and, in this way, the parliament can be compelled to take a position. Vis-à-vis a parliament whose position is not unanimous and cohesive,
there is in this situation perhaps a weapon of the government, so that the
means of dependence transforms itself into an instrument of independence
(cf. above the example of the government of Poincaré, p. 330).
Formation of Parliamentary System
361
§ 27.
he Parliamentary System of the Weimar Constitution
I. In the deliberations of the Weimar National Assembly, a more exact
speciication of the parliamentary system was intentionally avoided. One
wanted, on the one hand, a “irm connection” [341] between parliament and
government; on the other hand, states H. Preuß (Protocol, p. 300), the relationship should be “elastic.” Nevertheless, the afterefect of the decadeslong struggle against the government manifested itself at the outset. Obviously, many understood parliamentary government as the government of
a committee of the parliamentary majority standing under the political
leadership of parliament itself. At the same time, however, Max Weber’s
views, the sole powerful idea system left for parliamentarianism, were still
very inluential. hey rested on the ideal of democratic leadership selection. Following Weber, Art. 56 declares acceptance for the prime minister
system. “he Chancellor,” it reads, “determines the guiding principles of
policy.” he Chancellor was thought of as a political leader, and yet there
was no intention of retaining the one-chancellor system of the Bismarckian
constitution, which relied too much on the circumstances of the previous
Reich and on the personality of Bismarck and which was hardly still feasible
in practical terms. One formed instead a Reich government as a collegium
under the superior position and chairmanship of the Chancellor such that
collegiality is not eliminated. On the other hand, however, the Reich government should be formed such that the collegium itself should not have
the privileged position and political leadership (the “determination of the
guiding principles of policy”). he collegiality should be a “political collegiality” (see statements of Preuß, Zöpel, and Koch, Protocol, p. 301), not
a civil servant–type collegium, to the same limited degree that the priority position of the Chancellor means that he would be a superior in a
bureaucratic sense. he Chancellor should, indeed, determine the guiding
principles of policy and provide the “overall direction,” but not intervene
himself in the administration. he deputy Koch compared that signiicantly with the position of a mayor who does not interfere in the details
of the business of the magistrate. Moreover, the presidential system was
also adopted, creating a counterweight to the power of the parliament in
the form of the President. In this way, the government is divided between
the President and Reich government in the narrower sense (cf. the scheme
above on p. 198). With the incorporation of the presidential system, all four
subsystems of the parliamentary system in the Weimar Constitution under
consideration are potentially recognized. he reciprocal relationship of the
II. Overview
1. Parliamentary system
2. Prime minister
(Chancellor) system
Deinitive political leadership
by the majority of parliament
can result from:
Art. 56
he Chancellor determines the
main lines of policy.
Art. 54
Dependence on the conidence
of the Reichstag.
Art. 53
he authority to propose legislation by ministers.
Art. 50 (with 54)
General requirement of
countersignature, by contrast,
hardly from:
Art. 55
Chancellor is chair of the
government; connected with
the position of chair is Art. 58,
2, decisive vote in collective
sessions.
Not determined is that the
Chancellor, along with the
Minister of Finance, according to the Budget Order of
December 1922, can prevent
the initiation of expenditures
or of an oicial notiication in
the draft budget even against
the majority of the other ministers.
Art. 59
Ministerial and presidential
complaint, responsibility according to judicial form.
3. Cabinet system
4. Presidential system
Can result from:
Political leadership of the
President, possible on the
basis of:
Art. 53
Appointment of the Chancellor and ministers by the President) in conjunction with:
Art. 54
Dependence on the conidence
of the Reichstag as a practical
consequence of coalition governments.
Art. 57
Collegial decision making,
especially during the drafting
of legislation.
Art. 58
he government reaches its
decisions by majority vote. he
chair decides when there are
equal votes.
Art. 41
Election by the entire people.
Art. 25
Dissolution of the Reichstag.
Art. 73
Initiation of a referendum, in
conjunction with
Art. 53
Right of appointment and
dismissal of the Chancellor
and ministers, the latter by the
suggestion of the Chancellor.
diferent possibilities is the actual problem of parliamentary government in
the German Reich under the Weimar Constitution. [342]
III. [343] he practice of the parliamentary systems of the Weimar Constitution.
1. he conidence of the Reichstag. Art. 54, the constitutional foundation
of the parliamentary system under the Weimar Constitution, contains two
clauses. “he Chancellor and the Reich ministers,” the irst reads, “require
the conidence of the Reichstag for the conduct of their oice. Each of them
must resign if the Reichstag withdraws its conidence through an express
vote.” Both principles could lead to diferent practical results, depending on
whether the irst or the second clause is emphasized.
(a) he “conidence of the Reichstag,” of which the irst clause speaks, is
apparently the conidence of the Reichstag majority. Certainly, a minority
government then would obviously be impermissible. Nevertheless, the
party conigurations of the current German Reichstag has led to the outcome that the second clause of Art. 54, in contrast to the irst, was deinitive, although originally it was only conceived of as a logical consequence
and speciication of the irst clause. he “conidence of the Reichstag” was
supposed to mean the conidence of the government party, which had the
majority in the Reichstag. But there is not such a majority party in the German Reichstag. Even the coalitions are not irm. hey group themselves
instead in terms of foreign, domestic, cultural, and social policy under entirely diferent perspectives.
Under this partisan composition of the parliament, the practice of the
parliamentary system must base itself on the second clause of Art. 54, according to which a duty to resign only then irst obtains if there is an express,
so-called “positive” parliamentary vote of no conidence. Occasionally, the
government permits the petition expressing the Reichstag’s conidence in
the government to be placed by a government party (Stresemann government in November 1923, Luther government in January 1926). Votes of no
conidence have even been issued at the inception of the government with
the formula “he Reichstag approves the declaration of the government
and expresses conidence in it” (cf. Poetzsch, Jahrbuch des öfentlichen
Rechts XIII, 1925, pp. 168/69). he constant exercise of such positive conidence votes would have had to eliminate the current practice of minority
and coalition governments. By contrast, so long as no positive conidence
votes are demanded and the approval of individual declarations or actions
(limited declaration of approval) suices, a minority [344] government is
possible and a coalition cabinet can even assume control of the government
when there is uncertainty about the coalition. A government can form itself
and retain itself in oice, which does not have the conidence of the Reichstag (of the Reichstag majority speciically). he Luther government on
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Parliamentary System of Weimar Constitution
28 January 1926 received only 160 votes for the conidence petition, while
150 voted against the petition. So the conidence petition failed explicitly
and the remainder abstained. In any case, conidence in the government
was not expressed. It would also be conceivable that a pure civil servant
ministry would be established under the tacit, even if always rescindable,
tolerance of the Reichstag majority without receiving a conidence and a
no-conidence vote. In this regard, the practice of the German Reichstag
has created the concept of approval, in which neither a conidence declaration nor a no-conidence declaration is included. he irst clause of Art.
54 (“he Chancellor and the Reich ministers require the Reichstag’s conidence for the conduct of their oice”), therefore, no longer has the meaning
that seems to correspond to its literal sense.
(b) But even the meaning of the second clause has changed. he use of
coalition governments does not produce express votes of no conidence.
he government resigns when the party coalition on which it rests comes
apart. Cabinet crises, as Poetzsch ( Jahrbuch des öfentlichen Rechts XIII,
1925, p. 165) aptly remarks, are, in fact, coalition crises. More speciically,
they are crises of the party block that replaces the party capable of governing. he extent to which the deinitive political decisions fall outside of the
public sphere of parliament reveals itself most noticeably in this practice.
he original opinion, from which the creators of the Weimar Constitution
took their point of departure, was not validated. Art. 54 has acquired an
entirely diferent sense. he irst clause, according to which the government
requires the conidence of the Reichstag, is not deinitive in practical terms.
Deinitive in this sense, rather, is the second clause, according to which the
government resigns after it receives an express vote of no conidence. his
second clause, however, is efective only if it is not applied, in particular
when it does not come to an explicit vote of no conidence.
A further change of the original idea must be noted when the Reichstag
majority concludes an explicit vote of no conidence. [345] Such a Reichstag majority expressing its lack of conidence is heterogeneous under the
Reichstag’s current coniguration, and it is diferent for foreign, domestic,
cultural, and social policy questions. Consequently, the majority is ultimately always accidental. Certainly, even the coalition majority, which supports the government, is not united and is dependent precisely on whether
a foreign, domestic, cultural, or social policy goal stands in the foreground.
But at least it is a positive majority that is ready for common action, while
the majority expressing no conidence in it rests on a mere agreement in
the negative. It is widely recognized that this latter form of agreement is
in most cases useless logically, juristically, and politically, and yet it is a
form of agreement containing deinitive public law signiicance. For the
irst clause of Art. 54, the conidence of the Reichstag is clearly not that of
Parliamentary System of Weimar Constitution
365
the Reichstag majority, and then what still remains of the conidence of the
Reichstag? he consequence for the second clause of Art. 54 is that the vote
of no conidence is always the lack of conidence of the majority, because a
formal vote is a majority one that is prescribed without regard to how this
majority is composed. So the question arises as to whether the composition
of this majority and its reason for the expression of no conidence is absolute, and, in any case, it does not matter if the adding together of the denials
of conidence merely produces a numerical majority. he motives of the
various parties that vote for or against a decision will always be diferent.
Hence, one must fear entering into a practically impossible detailing of reasons, if at some point one generally begins to note the varied grounds for
action of the diferent parties. Indeed, when the motives contradict themselves so openly, and, for example, German nationals and communists vote
for a no-conidence petition, the diversity of reasons obviously excludes the
necessary and reasonable correlate of a no-conidence decision, in particular the potential for the formation of a new government that will have the
necessary conidence. hen the no-conidence decision is an act of pure
obstruction. In this instance, there cannot be a duty to resign, in any case
not if, at the same time, the dissolution of the Reichstag is ordered.
2. “he Chancellor determines the guiding principles of policy” (Attempted establishment of a prime minister, or chancellor, system. Art. 56).
[346]
he irst question arising in this context is: for whom does the Chancellor determine the guiding principles of policy? Is the determination valid
only in the context of Art. 56, speciically only in relation to the cabinet, so
that it only says that the Chancellor determines the guiding principles of
policy in regard to the other Reich ministers; or is it valid generally, which
makes it applicable to every other possible form of political leadership and
administration that comes into consideration, such as the Reichstag and
the President? According to its original meaning, the provision is valid
generally and is the expression of the aspiration to make the Chancellor
a political leader responsible to parliament. he Reichstag can topple him
through a no-conidence vote and, in this way, block his policy, but not lead
and administer policy itself. Also in regard to the President, the Chancellor
appears as the leader, because he is responsible to parliament, while the
responsibility of the President can only be made valid indirectly, in a judicially formal procedure (Art. 59), or through a petition for removal via an
initiative (Art. 43, 2). Leadership and parliamentary responsibility stand in
the closest connection. he relationship to the President is certainly not
implemented with logical consistency owing to the admixture of elements
of the presidential system, as will be shown below. In constitutional terms,
the clause “the Chancellor determines the guiding principles of policy” also
366
Parliamentary System of Weimar Constitution
has the sense of introducing a prime minister system. It should not merely
provide an internal, procedural rule for settling business within the cabinet.
he political leadership of the Chancellor, as it is conceived in Art. 56,
must not be understood in a servile way as a type of command authority.
Determination of the guiding principles of policy means to lead, not command. A superior or subordinate relationship in the sense of civil service
law or the normative character of a trial procedure must not be assumed
here. It can be that the leader fails, and then a parliamentary majority, the
entire cabinet or even the President, actually assumes political leadership. A
constitutional regulation can do no more than deine formally a few points
of a wide area, which then must be considered in formal terms. Between
these points [347] there are multiple possibilities and a wide area of discretion, while their connection never produces a closed form. It would be
methodologically false to pose questions in this context regarding unconstitutionality, constitutional change, etc. he political development played
out diferently than the fathers of the Weimar Constitution intended. However, if one determines that today the Chancellor does not lead politically,
because another factor is determinative instead, that is not a declaration
of unconstitutionality or of a constitutional change. To the same limited
degree that a monarchy ceases to be a monarchy because an energetic minister president like Bismarck under Wilhelm I guides the monarch, so a
constitutional change cannot be said to occur if, because of substantive or
personal reasons, the Chancellor does not realize the political leadership
intended for him. he Weimar Constitution, moreover, never systematically implemented the prime minister system, but instead connected it to
and mixed it with other systems. All four systems remain open for political
practice; none of them is unconstitutional generally. One can take as one’s
point of departure the political leadership presupposed in Art. 56 and then
show how much the current position of the Chancellor deviates from the
ideal of a political leader that Max Weber had in mind. But one must not
fail to recognize that the legal regime of the Weimar Constitution knows
two such leaders, the Chancellor and the President, with the latter borne
by the conidence of the entire people. he present regulation is the result
of a compromise of all four subsystems of the parliamentary system. It is,
moreover, a compromise of still other contradictory aspirations, such as
the democratic ideal of a political leader as Max Weber conceived of it, the
mistrust that parliamentarians and irmly organized parties, especially the
Social Democrats, feel toward the institutions of direct democracy, and,
inally, of the liberal Rechtsstaat striving to create a balancing of powers
and to retain in a politically inluential state president the residue of the
constitutional monarchy. With varying strength at diferent times, all these
Parliamentary System of Weimar Constitution
367
tendencies could become valid politically and allow the literal meaning of
the Constitution to appear in an entirely new light without a change in the
constitutional text. One cannot speak at all of a change in meaning, because
the many diferent [348] meanings, depending on the circumstances, are
contained in the constitutional regime from the beginning. here is no constitutional rule of any earthly constitution that on the basis of norms could
regulate the issue of political leadership and administration with the completeness of a trial procedure. he previous overview showed the diferent
possibilities that could reside in the same words such as “responsibility” or
“conidence.” Such questions permit solution neither in the form of command nor in that of a trial. It would also be foolish to appeal here to a court
of law, in order to handle the question of political leadership in a judicially
formal way and to determine the guiding principles of policy according to
judicial forms.
3. he cabinet system. he previous discussions are necessary for the
constitutional evaluation of the parliamentary system of the Weimar Constitution, because the present practice of the coalition governments has
apparently eliminated the prime minister system. Today, the government
does not form itself such that a party leader with a irm program inds a majority for this program and then directs the policy of the Reich. Rather, the
government program rests on an agreement of the factions, which commit themselves to participate in the government and pose conditions for
their cooperation. “he guiding principles of policy” are the result of such
agreements among factions. he “guiding principles of the future government” resulted during the formation of the government in January 1927.
A program that was complete and fully transcribed, and which contained
the exact provisions on foreign and social policy, etc., was agreed upon by
Chancellor Marx of the Center faction, and the other coalition parties, in
particular the German National Party, on 24, 25, and 26 January. In this
way, the guiding principles of policy are determined before the appointment of the Chancellor and, at his suggestion, of the other Reich ministers.
he Chancellor is bound to these guiding principles if he wants to stay in
oice. A deviation from the guiding principles requires the consent of the
coalition parties. A uniting of the government factions comes about in the
form of a cabinet vote. hus, the opinion could be held that Art. 56 and
the premier system has been eliminated in practice and that the cabinet as
such, in contrast to the Chancellor, has become a higher organ in regard to
the guiding principles of policy (Glum, Die staatsrechtliche Stellung [349]
der Reichsregierung sowie des Reichkanzlers und des Reichinanzministers
in der Reichsregierung, Berlin 1925).
his opinion errs above all because it fails to recognize the degree to
which the constitutional regime of the Weimar Constitution facilitates and
368
Parliamentary System of Weimar Constitution
leaves open all four subsystems of the parliamentary system. he fact that
the current practice of the coalition governments corresponds to the cabinet system may be correct, but that in no way signiies an infringement of
any constitutional provisions. However, it would be unconstitutional to the
same limited degree if a Chancellor were appointed with a irm program that
came about without prior negotiation and agreements among the factions.
It would also be unconstitutional if this Chancellor irst sought a Reichstag
majority for his program after his appointment and if the President, in the
event that this majority did not come about, dissolved the Reichstag. he
prime minister system, together with the other systems, retains its signiicance, and the constitutional provisions of the Weimar Constitution have
no other positive content than that of facilitating an unstable balancing of
these four subsystems. here are many diferent uses of the various applications that all remain in the broad discretion of the constitutional regime,
and it is not unconstitutional and not a constitutional change if instead of
one possibility another realizes itself. Today, one can only establish that the
premier system, which the creators of the Weimar Constitution thought of
as ideal, has in the event not come into its own. However, it is not ordained
as a constitutional demand (for one cannot command that there be political leaders). he premier system, rather, is facilitated as one element of the
parliamentary system alongside others. In December 1924, a committed
government could have been able to dissolve the Reichstag a second time in
order to create a majority capable of partisan government. hat would have
been fully constitutional. A political leader would have been able to validate
the premier system. When that did not happen, it was not unconstitutional.
Many a party politician, whom the mechanism of party organization and
of agreements among factions has put in the position of the Chancellor,
may have no interest at all in leading politically. He wants to protect his
party from political tremors and does not think of assuming the risk of political activity, which remains constantly [350] linked with true leadership.
Instead of the premier system, other possibilities of the parliamentary systems come into play.
4. he presidential system. he position of the President is based on the
monarchical element, which in a modern Rechtsstaat constitution is used
for the construction of a counterpoise between the legislative and executive
branches (above p. 290). Together with the Rechtsstaat construction of a
balance, there were also ideas of a direct democracy at work in the introduction of the presidential system. he President is elected by the entire
German people. His legal authority to dissolve the Reichstag (Art. 25) or,
in opposition to the Reichstag’s statutory decision, to order a referendum
(Art. 73), provides him the opportunity to direct an “appeal to the people”
and to produce a direct connection with the enfranchised state citizens
Parliamentary System of Weimar Constitution
369
against the parliament. he “people” is the higher, decisive third party, both
in regard to the parliament as well as to the government, and the President has a direct connection with the people. Ideally, he is thought of as
a man who beyond the limits and the framework of party organizations
and party bureaucracy unites in himself the trust of the entire people, not
as a party man, but as trustee of the entire people. A presidential election,
which really does justice to this sense of the constitutional provision, would
be more signiicant than any of the many elections in a democratic state. It
would be a marvelous acclamation of the German people and would have
the full irresistibility that accrues to such acclamations in a democracy. But
what sense and purpose could such a justiied position of the President
have other than that of political leadership? If the conidence of the entire
people genuinely uniies itself in an individual man, then he certainly cannot remain insigniicant politically, hold celebratory speeches, and set his
name under foreign decisions. It is a small step, therefore, and corresponds
thoroughly to the basic ideas of Art. 41, to say that the President is a political leader. Even if their exercise remains tied to the countersignature of
a minister, the important government powers that he receives under the
constitution, high command of the army, issuing measures during the state
of exception, right of pardon, etc., also prove that a nonpolitical oice is
not [351] at issue here. he consequence is that under the Weimar Constitution two political leaders come into play, the Chancellor and the President. he former deines the guiding principles of policy, but only because
he holds the conidence of the Reichstag, in other words, of a shifting and
unreliable coalition. he President, by contrast, has the conidence of the
entire people not mediated by the medium of a parliament splintered into
parties. his conidence, rather, is directly united in his person. he fact
that a people should have two political leaders in such manner can lead to
dangerous political conlicts, if both are genuinely political leaders and do
not have the same political orientation. hat would be a dualism that could
have worse consequences than the dualism of the constitutional monarchy.
One cannot just let the conlicts that can then result be decided simply
by the people, because that would lead in efect to an ongoing practice of
plebiscites, which is just as undemocratic as it is impossible. For the people
elects its leaders so that they lead, not to continuously resolve the problems
of and diferences of opinion among the leaders themselves.
If, however, the President is not the leader, but instead the “objective”
man as a nonpartisan, neutral arbiter, then he is this as bearer of a neutral
authority, of a pouvoir neutre, a mediating organ, a pouvoir modérateur, a
referee, who does not decide. He brings the parties together, and through
the prestige and conidence he inds among the parties, he creates an atmosphere of understanding. President Ebert, who still was not elected by the
370
Parliamentary System of Weimar Constitution
entire German people, fulilled this task in important cases, certainly most
clearly in the summer of 1922 during the conlict between Bavaria and the
Reich. Otherwise, according to its nature, this activity has something unnoticeable and even invisible about it and presupposes that the President
is able to free himself from the claims of a party. A monarch who assumes
his position by way of hereditary succession as a member of an old, securely
held dynasty can in general easily hold a neutral position without it degenerating into political insigniicance. An elected president, by contrast,
is really elected by the entire people. Because the entire people are necessarily a political entity, he will be a politician in an especially decisive and
intensive sense, [352] a political leader and not merely the neutral third.
he other possibility is he is elected by a party coalition on the basis of
party agreements. hen he cannot easily exercise the special function of the
neutral organ. For the party organizations will make the President either a
reliable party follower or a harmless person, who does not stand in the way.
he neutral, mediating, refereeing activity he exercises loses its value and
its efect. In this instance, he has neither the power of political decision nor
a genuine neutral authority; he is, rather, still only an annex of the parliament or of the government. If that in fact occurs, one cannot also term it
unconstitutional, for even this possibility remains completely open under
the constitutional regime of the Weimar Constitution. he example of the
present President Hindenburg in no way proves that a President elected
by the people necessarily evades the consequences of the partisan organization of the electorate. For the prestige and the conidence President
Hindenburg inds among the largest part of the German people beyond
party boundaries still stems from traditions and impressions formed prior
to the present constitutional condition. his prestige and conidence arose
in the war and during the collapse. In times of normal parliamentary party
politics, by contrast, each person engaged in the public sphere of politics is
committed very quickly in partisan terms.
Under the Weimar Constitution, the President can exercise his grants
of authority only with the cooperation of the government, because he is
bound to the countersignature of the Chancellor or of the ministers (Art.
50). When the President and the government agree, the dualism of the executive is eliminated, and a strong government stands opposite the Reichstag. his is still the case whether the President adapts himself to the
government, the government allows itself to be led by the President, or,
ultimately, a common action based on shared understandings occurs. In
a conlict between the President and the Reichstag, there remain various
opportunities for an “appeal to the people,” such as dissolving the Reichstag, ordering a referendum, and petitioning the Reichstag for removal of
the President. hese possibilities for a popular appeal [353] provide genuine
Parliamentary System of Weimar Constitution
371
content to all constitutional provisions concerning the government and its
relationship to the parliament, so these provisions may only be considered
in the context of the entire system, not in isolation from it. Today, the dissolution authority and the type of its practical use is decisive both for the
parliamentary system in general as well as for whichever subsystem of the
system gains validity in the reality of the political life.
372
Parliamentary System of Weimar Constitution
§28.
Dissolution of Parliament
he fulcrum of the current parliamentary system is the dissolution authority. his is the case generally and for the regime of the Weimar Constitution in particular.
I. Types of dissolution. he dissolution of parliament has various meanings in diferent constitutional systems.
1. he Monarch’s dissolution authority. In a nonparliamentary monarchy,
the dissolution of the parliament mostly serves the purpose of preserving
the advantage of the monarchical government against the popular assembly, rendering the dissolution authority into a weapon directed against the
parliament. he exercise of the dissolution authority usually presupposes
a conlict. But the dissolution is not an appeal to the people, and the new
election is not a conclusive decision, because the king can often arbitrarily
repeat the dissolution. he history of the Prussian conlict between the
royal government and Prussian Land parliament between 1862 and 1866,
with its multiple dissolutions of the Prussian Land parliament, contains
the most famous example of this monarchical dissolution authority. he
impression made by this process was very strong. Its afterefect is still discernible in the Weimar National Assembly. his is evident in the explicit
addition to Art. 25 that stipulates that the President’s dissolution authority
can, “however, only be exercised once for the same reason.” “he sense of
the provision (for the same reason),” according to Hugo Preuß, “is certainly
clear. he President and the government should not have the opportunity
to attempt, by repeated dissolution for the same reason—I remember the
period of conlict—to gradually wear down the Reichstag and the electorate” [354] (Protocol, p. 233). Obviously with this “conlict” in mind, Preuß
takes as his point of departure the fact that the dissolution of the Reichstag
always means a conlict and, consequently, is something abnormal, indeed,
something dubious and reminiscent of a coup d’état. hat may apply to the
German-style constitutional monarchy, but it does not in any case apply to
the parliamentary system of a democratic republic.
2. he presidential dissolution authority. According to Art. 25, “he
President can dissolve the Reichstag.”
In this context, the dissolution authority is a necessary and normal
means of achieving balance and of bringing about the democratic appeal
to the people. he Art. 25 requirement that the President may dissolve the
Reichstag “only once for the same reason” only applies when the dissolution
stems from a genuine conlict, rests on the clear opposition of two diferent
opinions, and the people approves either the standpoint of the Reichstag or
that of the government (with the President), thereby deciding the conlict.
he appeal to the people is conclusive, and it is self-evident that it cannot
be repeated for the same reason, because of the same diference of opinion,
in other words. hat presupposes, however, that there is a genuine conlict.
he dissolution authority of the president under the French Republic rests on
Art. 5 of the Constitutional Law of 25 February 1875, according to which the president of the Republic, in agreement with the Senate, can dissolve the Chamber of
Deputies before the expiration of the electoral period. Although since 1877 the dissolution authority became impractical (above p. 29), this example of the presidential
dissolution authority is especially instructive for the substantive content of constitutional theory. It stems from Prévost-Paradol’s typically liberal Rechtsstaat ideas
and constructions and is understandable only in the context of these ideas about the
mixing and rendering relative of political form elements that prompted the renewal
of monarchical organizational forms (above p. 291).
3. he ministerial dissolution authority. he essence of the ministerial
dissolution authority is that a parliamentary government, whether it is the
prime minister or the cabinet, can order an “appeal to the people” when the
majority in parliament no longer agrees with it. hrough the dissolution
of parliament and the calling of new elections, it can attempt to achieve
a new majority. A conlict between parliamentary majority and minister
is presupposed, a conlict that the people [355] can resolve conclusively
through the new election. he result is the dissolution may not be repeated
because of the same conlict. he new election decides the issue. his ministerial dissolution developed as a special case especially clearly in the English parliamentary practice, although the ministry as such does not have its
own formal dissolution authority. Instead, the dissolution occurs formally
through an order of the head of state, which in England requires a royal
decree.
4. Self-dissolution of parliament. Self-dissolution developed as an additional case of parliamentary dissolution, which today is recognized above all
in the Land constitutions (for example, Art. 14 of the Prussian constitution
of 1920 and §31 of the Bavarian constitution of 1919). In this case, the limitation regarding the one-time nature and the occasion for calling for a dissolution is senseless, for any parliament can obviously dissolve itself only once.
5. Dissolution due to popular initiative. A inal form of dissolution of
parliament, that stemming from a popular initiative, is also recognized
today in the German Land constitutions (for example, Art. 14 of the Prussian constitution and § 30 of the Bavarian constitution), but it does not
come into consideration for the Reich Constitution.
6. Peculiar cases are the consent of a senate (above p. 300) and dissolution by
special “committee” (Art. 14 of the Prussian constitution), among others.
374
Dissolution of Parliament
II. he President’s dissolution authority.
1. he Weimar Constitution does not recognize a form of Reichstag dissolution other than one ordered by the President (Art. 25). In fact, however, the exercise of this formal dissolution authority of the President can
serve diferent types of parliamentary dissolution. Normally, a Reichstag
dissolution ordered by the President is a presidential dissolution not only in
terms of form, but it is also presidential in terms of the circumstance under
which it occurs. For it serves the goal of protecting the President’s independent position vis-à-vis the Reichstag and, above all, of resolving a pending
conlict between a Reichstag majority and the President by means of an
appeal to the people. At the same time, however, a Reichstag dissolution
that is formally presidential, and yet that is also ministerial according to
circumstances, is especially important. In this case, the dissolution ordered
by the President bolsters the government’s independence and constitutes a
limitation of the principle that the government is dependent on the transitory Reichstag majority. A self-dissolution [356] of the Reichstag could even
occur in the form of a presidential dissolution, if the Reichstag itself desires
the dissolution. Ultimately, it would still be conceivable that by dissolving
the Reichstag, the President is conforming to the will of a minority and
that something which under the circumstances would be the dissolution of
parliament by popular initiative also assumes the form of the presidential
dissolution. he distinction of the diferent types of dissolution remains of
great signiicance, even if nothing other than the form of the presidential
dissolution is an option and the President cannot be compelled to order the
dissolution against his will.
2. he fact that the President requires the countersignature of the Chancellor or of the responsible minister for all his oicial actions, even the
dissolution of the Reichstag according to Art. 50, raises another question
regarding the manner in which both types of dissolution that are most important in practical terms, the presidential and ministerial forms, regulate
themselves. For only the President can order the dissolution of the Reichstag, and he can do so only with the countersignature of the Chancellor.
his means that the two independent and distinct types of dissolution are
inseparably linked with one another. And if the President is unable to obtain a ministerial dissolution or the Chancellor cannot gain a presidential
dissolution, then neither type of dissolution can become efective.
Previous cases: he presidential decree of 13 March 1924 (Reichgesetzesblatt I,
p. 173), which dissolved the Reichstag “after the government determined that the
demand, issued on the basis of the Enabling Acts of 13 October and 8 December
1923 allowing the decrees it designated as a matter of life and death at the time to
stand, did not receive the consent of the Reichstag.” Furthermore, the President’s
decree of 20 October 1924: “Parliamentary diiculties,” it reads, “render impossible
Dissolution of Parliament
375
the retention of the present government and, at the same time, make impossible the
formation of a new government on the basis of the previously pursued domestic and
foreign policy.”
Both types of dissolution are part of the parliamentary system under
the Weimar Constitution. Diiculties can arise that are resolvable only by
recognizing in proper signiicance the dependence on the conidence of the
Reichstag. he government requires the conidence of the Reichstag in the
conduct of its oice (Art. 54), but the Chancellor and, at his suggestion, the
ministers are named by the President (Art. 53). It was shown above that Art.
54 obtained its actual content [357] from the fact that the explicit vote of
no conidence represents the fall of the cabinet. Consequently, there can be
a government that conducts its oice without having the conidence of the
majority of the Reichstag. Every minority government is in this position.
Now, if the President names a Chancellor and orders the dissolution of the
Reichstag under the Chancellor’s countersignature, there is no violation of
Art. 54, because otherwise every minority government would also represent such a violation. hat ought to be indisputable given the practice of
government formation in the German Reich up to now.
he more diicult question is this: if there is an express vote of no conidence by the Reichstag, the duty to resign according to the text of Art. 54.2 is
undoubtedly justiied. In this case, the presidential dissolution occurs such
that the previous cabinet steps down, the President appoints a new cabinet,
and dissolves the Reichstag with the cabinet’s countersignature, before an
explicit, new no-conidence vote can be achieved. he ministerial dissolution, by contrast, seems in this case to be entirely precluded, although it
comes especially into consideration precisely for this case. Given the formalistic biases of German constitutional law, one will probably insist on the
text of Art. 54 and deny the government the possibility of appealing to the
people in regard to an explicit no-conidence vote. However, one must at
least distinguish the type of majority that withholds its trust through a noconidence vote on the government. If it is a irm majority, which is ready to
form the government with recognizable political guidelines itself, it would
certainly not be unreasonable, even if in no way pressing, to reject the ministerial dissolution, although the ministerial right of dissolution conforms
most closely to precisely this case. If, however, the majority that formulated
the vote of no conidence is not a uniied majority and the political motives
of the vote are recognizably contradictory, as with a no-conidence vote
carried by the votes of the reactionary nationalists, the communists, and
the German People’s Party, for example, it would be nonsensical to declare
the ministerial dissolution impermissible and to demand that the President
irst not dissolve the Reichstag before he formed a [358] new government,
in other words, to actually demand that the Reichstag’s inability or unwill376
Dissolution of Parliament
ingness to govern be treated as a type of constitutionally protected legal
entitlement.
3. In interpreting the constitutional provisions on the parliamentary system of the current German Reich as well as in evaluating the legal authority
for dissolution under the Weimar Constitution, the connection of both
institutions must be taken into account, and the diferent constitutional
provisions must not be isolated from one another and then emphasized in
an excessive and exclusive manner. All these provisions extend themselves,
more precisely, into a pliable system that holds open the most diverse possibilities. he President’s dissolution authority stands at the center of this
system as a normal institution that supports the entire system and modiies
all other constitutional provisions, an institution with the goal of permitting the will of the people to decide in opposition to a parliamentary majority. In its decision of 21 April 1925 (Archiv des öfentlichen Rechts, vol. 9,
1925, p. 224f.), the Staatsgerichtshof of Oldenburg considered the case of a
dissolution of the Land parliament after the rejection of a conidence declaration and emphasized this democratic perspective that “precisely through
the dissolution the people come into the position of validating their will in
the conlict.” he reporter in the Constitutional Committee of the Weimar
National Assembly, Dr. Ablaß, recognized and expressed the same thought
very clearly (Protocol, p. 233). “his right,” he argued, “(in particular, the
President’s dissolution authority) undoubtedly extends very far, but under
all circumstances we must approve it. When the President proceeds with
the well-founded conviction that the Reichstag is on the wrong path with its
decisions or contradicts the people’s sensibilities, he must have the opportunity of appealing to the people against the Reichstag. hat is democratic,
and a good democrat has no defense against the appeal to the people.” In
terms of the spirit of the provision, the same holds for the politically especially important case of a dissolution instituted by the President, yet one
that is a ministerial dissolution in substantive terms. For then the dissolution has precisely the purpose of giving to a government that has lost the
majority in parliament the possibility of bringing about the decision of the
voters through a new election and thus allowing the majority of the enfranchised voters to decide, [359] in contrast to a mere parliamentary majority
with its accidental and shifting factional groupings. he political and public
law purpose of the ministerial dissolution, which is nevertheless part of
the system of the Weimar Constitution, would diminish if one intended to
interpret Art. 54 without regard to Art. 25 and would insist that the current
government is nothing more than the automatically changing component
of factional groupings that shift daily. I would therefore assume that a government deprived of conidence through the explicit no-conidence vote
by the Reichstag can even countersign the order of the President through
Dissolution of Parliament
377
which this Reichstag is being dissolved. here is, of course, the duty to resign grounded in Art. 54. In that type of case, however, one must await the
decision of the people on the composition of the Reichstag. he duty to
resign then occurs when the new election has not provided a Reichstag majority for the government and the newly constituted Reichstag withdraws
its conidence from the government. [360]
378
Dissolution of Parliament
Part i V
Constitutional theory of the feDer ation
§ 29.
Fundamental Concepts of a Constitutional
heory of the Federation
I. [363] Overview of the types of interstate relations and connections.
1. here are relations between states wherever political unities exist
alongside one another peacefully or hostilely. International law is the sum
of customary or conventionally recognized rules for these relations of mere
coexistence. he compatibility of states sharing only international legal
relations still does not establish a connection between these states. When
speaking of “the” international law as a preponderance of rules that in fact
varies from case to case and from relation to relation, and yet that establishes an “international legal community” or a “family of nations,” one is
designating only the logical cognate of these relations of coexistence. If one
also speaks of an “international legal order,” one may understand the concept of order not as a closed system of norms, but rather as something that
is present existentially. his international legal community is not a contract,
nor is it based on a contract. It is also not an alliance and still less a federation. It does not have a constitution in the distinctive sense. It is, instead,
the relex of the politically plural universe, which expresses itself in individual, generally recognized rules and considerations. In other words, it is a
pluralistic universe understood as a multitude of political unities that exist
alongside one another.
One can portray general and abstract norms as the “constitution” of the international legal community to the same limited degree that one can ind the “constitution” of a family in general norms such as that “you should honor your father and
mother” or “love thy neighbor.” In particular, it is a fruitless endeavor to portray
general principles like “right before might” or the sanctity of contracts as the constitution of the international legal community and to falsely ascribe the character of
a genuine federation to the general “international legal community.” he principle
pacta sunt servanda, which A. Verdroß presented as the “constitution” of the international legal community, is the least appropriate of all principles for constituting a
community and order that extends beyond mere relations of coexistence. In terms
of international law, the contract concluded by the states is valid, but not the more
abstract second principle [364] that contracts are valid, a principle that extends beyond the concrete content of the contract. hat would be a ictional doubling of
norms, which is logically false and without practical value. For further critique of
this principle, cf. above p. 69.
A large part of the misunderstandings and errors that dominate the fundamental deliberations of international law today are explained by the fact that the word
“international” is ambiguous and can designate relations that are opposed politically
to one another. he German manner of expression makes possible a clear distinction between interstate and international, and intellectual integrity requires that
this distinction be honored. In contrast to “international,” “interstate” means that
states as political unities marked of from the outside by irm boundaries, impenetrable, “impermeable,” stand opposed to one another and alone bear the decision
over the question of its own existence (“sovereign” means precisely that a foreigner
does not decide the question of political existence). “International,” by contrast, designates (in the proper German manner of expression) the simultaneous elimination and subsumption of national distinctions, a penetration and connection that
extends beyond state boundaries. he Roman Catholic Church is an international,
not an interstate organization; international unions, international cartels, etc., are
international in the same degree that they are not interstate.
his distinction, which is self-evident and has been widely recognized for a long
time (cf. for example, G. Jellinek, Allgemeine Staatslehre, p. 116, inter alia), is often
overlooked even in the legal scholarship on the League of Nations. he League of
Nations is an interstate organization, while paciism is an international movement.
When one continues to confuse paciism with a federation of peoples (in the vague
sense of peace and understanding among peoples), on the one hand, and federation of peoples with the Geneva “Société des Nations,” on the other, one can easily
draw imaginary consequences. he essay by Arthur Wegner, “Kriminelles Unrecht,
Staatsunrecht und Völkerrecht” (Hamburgische Schriften zur gesamten Strafrechtswissenschaft, Hamburg 1925, pp. 11, 78), considers the question of whether a report
to a foreign government stipulating that behavior of one’s own government or state
oicials is contrary to international law is a criminal ofense, such as treason against
one’s land. “Certainly,” Wegner argues, “each has the right to resist governmental
injustice. But according to our cultural understanding, the means of this resistance
is not the appeal abroad, but rather the appeal to one’s own people.” On p. 11, he
writes that in terms of criminal law, a state secret contrary to international law could
exist (that may not be “betrayed”), much like the employer may not communicate a
business secret to the competitor. his discussion (in which the state as the political
unity of one’s own people is reduced to a “trade organization”) concludes with the
statement: “But if, for example (literally: for example), the federation of peoples has
been notiied, the decision is still more diicult.” More precisely, this is the case
because today thousands oscillate between “federation of peoples and fatherland.”
his German criminal law expert apparently considers Geneva an analogue of Moscow and makes an “international” organization out of an interstate one.
2. Among the contractually regulated individual relationships for the
advancement of individual goals of the state, there are numerous diferent
types of international law contracts, such as trade and delivery contracts,
contractual connections for the ongoing regulation of such individual goals,
unions such as postal association contracts, customs and trade unions, etc.
his type of contractual relation or connection is characterized by the fact
that it establishes obligatory commitments with a deinable content, which
are often very important, but it does not directly entail the political existence of the state as such in its totality. [365] It is never a connection that is
a matter of life and death.
It can be that economic or other connections become signiicant, but they are
irst decisive when they involve the political existence of the state. hat economic
connections still do not by themselves constitute a community of political existence
382
Concepts of a Constitutional heory
is evident in the example of coin and currency unions. Such a “union” cannot prevent the currency of the individual member Lands and states of the union from
developing diferently, as the fate of the Latin union of 23 December 1865 and the
Scandinavian coin union of 27 May 1873 and 16 October 1875 proves. If an economic
connection like that of a customs union would result in a political community, the
political element would simply become decisive and an additional connection involving the existence of the state would occur in lieu of the contractually regulated
individual relations.
3. Confederation (alliance) is a contractual relation that obligates a state
to go to war in a particular instance. Because the war takes hold of the state
as a whole in its political existence and is the last and decisive expression of
the distinctively political element, that is to say of the friend/enemy grouping, this obligation has a special character and distinguishes itself from any
other obligation, however valuable and important the contractual regulations or connections are. Nevertheless, the political status of a state and its
constitution is otherwise not changed through the conclusion of this confederation. he decision on the jus belli is contractually bound with respect
to a particular case, but the jus belli itself is not given up and turned over
to a third party. hrough the confederation contract, the exercise and use
of this right is contractually determined. It is part of the political existence
of a state that it decides itself the question of its political existence. A state
that renounces conclusively its right to self-defense or transfers this right to
another state or to another organ does not have its own political existence.
he issue is not how one designates the diferent “half-sovereign” intermediary formations and whether because of diverse considerations one still
typically speaks of the state in this instance. In any case, it inheres in the
political existence of a state that it retains the possibility of its own decision about the defense of its own existence. Consequently, the conclusion
of a confederation signiies a foreign political act, of which only a politically
existing state is capable. Yet it does not signify a constitutional change, but
rather only the exercise of an authority presupposed explicitly or implicitly
in each state constitution. [366]
It can be ordained constitutionally that the conclusion of confederations is prohibited or is submitted to a particular procedure. he Weimar Constitution provides
in Art. 45, 3: “Confederations . . . require the consent of the Reichstag.” his means
that the concrete individual confederation contract is not a constitutional change. It
is, rather, only the realization of a constitutionally provided possibility and the result
of external political independence. he form of the confederation, however, can be
used for the purpose of changing the status of a state concluding the contract and
of forcing upon it a permanent renunciation of the independent decision on its ius
belli. he form of the confederation contract in fact facilitates the establishment of
a protectorate relationship (above § 7, p. 73).
4. he federation is a permanent association that rests on a free agreement and that serves the common goal of the political self-preservation of
Concepts of a Constitutional heory
383
all federation members, through which the comprehensive status of each
individual federation member in political terms is changed in regard to the
common goal.
he distinguishing marks and consequences of this federation concept should be
developed without regard to the distinction of a state federation and federal state.
he theoretical treatment of the federation problem given until now in Germany
has sufered from the fact that it is dominated entirely by the interest in a juxtaposition of a federation of states (put concretely, the German Federation of 1815) with
the federal state (in particular the German Reich of 1871) and searches now for the
simplest possible antithesis for this distinction. he German public law textbooks
of Laband and Meyer-Anschütz are typical of this tendency. hey present seemingly clear and striking alternatives, yet ones that are in fact logically peculiar or
impossible. he federation of states should be a pure international law relationship,
in contrast to a federal state, which is an unadulterated public law subject. he one
rests on an international law contract, the other has a public law constitution; the
one is a legal relationship, the other a legal subject, etc. With such schematic and
convenient formulas, the common fundamental concept of the entire problem is left
out of account and some detail that is interesting for the political situation is raised
to the status of a distinguishing conceptual marker. It is understandable and explicable historically that after the year 1871 the public law theory of the German Reich
rendered the distinction of this Reich in regard to the earlier German Federation
of 1815 in such simplistic slogans and with that the general federal problem seemed
resolved. Today, this simple method is no longer possible.
he afterefect of this epoch is still very strong. he entrance of Germany into
the League of Nations and the public law questions that result from this for the
interpretation of Art. 45 were never able to awaken scholarly interest in the concept of the “federation.” Characteristic of this tendency is the essay by F. Schiller,
Archiv des öfentlichen Rechts, new series, vol. 11, 1926, p. 41f., which wants to
treat the question of the entrance of Germany into the League of Nations as a pure
“legal question” and ignores the concept “federation.” In this essay, he dismisses
my attempt at a discussion of the issue (“Die Kernfrage des Völkerbundes,” Berlin
1926) with the linguistic sleight of hand that it involves a “nonpolitical” investigation. Scholars are not at all aware of the fundamental question in constitutional
theory terms (for a genuine federation contract is an act of the constitution-making
power).
he federation establishes a new status for each member. he entry into
a federation signiies a change of the new member’s constitution. Even if the
wording of not a single [367] constitutional provision is changed, it is far
more important that the constitution in the positive sense, in other words,
the concrete content of the fundamental political decisions on the entire
manner of existence of the state, is nevertheless essentially changed. he
federation contract, therefore, is an agreement of a special type. It is a free
contract insofar as it is dependent on the will of the member to enter the
federation. his means it is free in regard to its conclusion. Yet it is not a
free contract in the sense of one that is freely promulgated and that only
regulates deinable individual relations. More precisely, by belonging to the
384
Concepts of a Constitutional heory
federation, a state is integrated into a politically comprehensive system. he
federation agreement is an interstate status contract.
II. Consequences of the conceptual deinition of the federation.
1. he federation comprises every member state in its total existence as
a political unity and incorporates it as an entirety into a politically existing connection. his means that not only individual linkages stem from the
federation agreement. When in the federal constitution the “competence”
of the federation is limited and the federation should be competent only
for matters that are expressly enumerated (for example, § 5 of the Frankfurt constitution of 1849), that involves the one technical question of the
jurisdictional presumption and regulates the organizational execution of
the division of jurisdiction inside the existing federation. It does not involve
the entirely diferent question of the fundamental presuppositions of the
federation and the problem of sovereignty. On this problem, see III below.
2. he federation contract aims to establish a permanent order, not just
a provisional regulation. hat also follows from the concept of status because a merely provisional individual regulation that can be promulgated
and deined cannot establish status. So every federation is an “eternal” one,
in other words, a federation counted on for the long term.
he historical examples of federation contracts, therefore, always speak of this
duration in any of their formulations. he German Federation Acts of 1815 state that
the members “unite” themselves into a “continuing federation.” he Vienna Concluding Acts of 1820 should “render indissoluble the bond that commits the entirety
of Germany in solidarity and peace,” and Art. V of this concluding act provides that
“the federation is founded as an indissoluble association, and hence no member is
free to leave it.” he introduction of the constitution of the North German Federation of 26 July 1867 speaks of an “eternal federation,” just as the constitution of the
German Reich of 16 April 1871 says that the king of Prussia, in the name of the North
German Federation, and the rulers of the southern German states are consummating an “eternal federation.”.
Even in the doctrine of the great state theorists, duration is emphasized as an
essential characteristic of the federation. his is best of all clear in Pufendorf, De
Iure Naturae et Gentium, VII, c. 5, § 18. [368]
3. he federation agreement is a contract of a particular type, a constitutional contract speciically. Its conclusion is an act of the constitutionmaking power. Its content is simultaneously the content of the federation
constitution (above p. 62f.) and a component of the constitution of each
member state.
For this reason, numerous states of the German Federation of 1815 placed at the
forefront of their constitution the clause that they form a component of the federation. Take, for example, the Grand Duchy of Baden (constitution of 22 August
1818, §1), which provides that “the Grand Duchy forms a component of the German
Federation.” It is exactly the same with the Grand Duchy of Hesse, constitution of 17
December 1820, § 1; the Kingdom of Saxony, constitution of 4 September 1831, § 1;
and especially extensively and pointedly the Kingdom of Württemberg, constitution
Concepts of a Constitutional heory
385
of 25 September 1819, § 3, which states that “the Kingdom of Württemberg is part
of the German Federation, so all organic decisions of the Federation Assembly that
involve the constitutional relations of Germany or the general relations of German
state citizens also have binding force for Württemberg.” “However,” it continues, “in
regard to the means for fulillment of the commitments hereby established, the constitution provides for the participation of the estates.” When there are such clauses
in Land constitutions of the contemporary German Reich under the Weimar Constitution (for example, Art. 1 of the Prussian constitution of 30 November 1920,
which provides that Prussia is a republic and member of the German Reich), that
does not have the same signiicance in this context, because the current German
Reich is no longer a federation. On this, compare below p. 388f.
4. he federation aims at the preservation of the political existence of
all members in the framework of the federation. he consequence is that
the federation constitution unconditionally contains a guarantee of the political existence of every federation member, even if it does not explicitly
speak of it. More speciically, existence is guaranteed to each individual
member in regard to all others, and of all members in regard to every individual member and all together. Within the federation the political status
quo in the sense of political existence must also be guaranteed. Normally,
the guarantee of territorial integrity is part of this. No federation member
may have a part of its area taken without its consent, much less can its political existence be at all eliminated. hat is not to say that every guarantee
of political existence or of territorial integrity already signiies a federation
agreement. But conversely, this guarantee of existence and territorial integrity certainly inheres in every federation. he guarantee stems from both
the goal of self-preservation and the concept of duration that is essential to
the federation.
5. Externally, the federation protects its members against the danger of
war and against every attack. Internally, the federation necessarily signiies [369] enduring paciication, as the traditional federation agreements
already state since the eleventh century, a “civil peace.” he “unconditional
duty of the individual states is to resolve each and every state dispute only
by legal means that are established or permitted (in the federal constitution speciically).” his principle of Haenel regarding Art. 76, para. 1, of Bismarck’s Reich Constitution (Staatsrecht, p. 577) is valid within every federation without regard to the distinction between state federation and federal
state and is a product of the peace inside the federation that is essential to
the federation.
he result is that the essential change of the total status of the federation members afects their jus belli. hrough the federation agreement,
the exercise of this ius belli is not contractually determined for a particular
case, for the casus foederis, as in a confederation agreement. Rather, within
the federation self-help is renounced on an enduring basis. War may no
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longer take place within the federation and between federation members.
Within the federation, as long as the federation exists, only a federation
enforcement action of the entire federation against a member is possible. If
there is war, then the federation no longer exists in the same form.
he German Federation of 1815 was dissolved in 1866 by the war between Prussia
and Austria. On 28 May 1866, the Austrian government broke of negotiations with
Prussia, and Prussian troops under Manteufel marched into Holstein on 10 June
1866. Austria requested the mobilization of federation troops (except for the Prussian corps) in the Bundestag on 11 June, a petition that Prussia declared contrary
to the federation, but that was nonetheless accepted on 14 June 1866. Regardless of
one’s view on the “question of guilt,” the Prussian declaration of 14 June 1866, which
was issued after the acceptance of the Austrian petition (printed in Nouveau Recueil
général de traités, XVIII, p. 310f., and Strupp, Documents, I, p. 324f.) contains an
interesting discussion of the question as to what a mobilization and a war inside a
federation means:
In regard to federation members, federation law recognizes only an enforcement procedure, for which particular forms and prerequisites are prescribed.
he establishment of a federation army against a federation member on the
basis of the federation war constitution is just as foreign to this constitution as
any intervention of the federation assembly against a federation government
outside of the norms of the enforcement procedure. After Prussia’s conidence
in the protection that the federation had ensured to each of its members had
been deeply shaken by the circumstance that the most powerful member of
the federation had armed for the purpose of self-help against Prussia, the royal
government must recognize that external and internal security, which is the
primary goal of the federation according to Article II of the Federation Acts, is
already endangered to the highest degree.
Because of the declaration of war against a federation member, which is precluded under federation law, the royal cabinet looks upon the rupture of the
federation as complete.
he critique that Haenel, “Vertragsmäßige Elemente der Reichsverfassung,” Studien I, 1873, applied to the Prussian interpretation (it is “nullo jure justiicabilis”)
overlooks the fundamental problem of every federation. [370]
If the federation is not dissolved even though there is war, then that is only possible when one of the disputing parties succeeds in portraying its war as a mere federation enforcement action, as the outcome of the United States war of secession of
1861–1865 enabled the Northern states to do in regard to the Southern states, and as
Austria would have done in 1866 if Prussia had sufered a defeat. For the argument
that a war between federation members ends the federation, see Pufendorf, De Iure
Naturae et Gentium, VII, c. 5, § 21.
6. here is no federation without involvement of the federation in the
afairs of the member states. Because the federation has a political existence, it must have a right of supervision. It must also be able to decide on
the means for the maintenance, preservation, and security of the federation
and, if necessary, to intervene.
7. Every federation can wage war as such and has a jus belli. here is
no federation without the possibility of a federation war. Nevertheless, it is
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387
another question in itself whether the federation has an exclusive ius belli
externally, that is, in regard to nonmembers. he federation protects its
members against attacks from abroad. But individual members need not
be deprived of the possibility of conducting war against nonmembers. As
a factual and practical matter, the war of a member against a nonmember
can easily threaten the federation. Nonetheless, the renunciation of the ius
belli in regard to a nonmember does not at all follow from the nature of the
federation. Conversely, it follows from the nature of the political existence
of the individual members that a right to self-help and to war is only being
given up insofar as it is conditioned by membership in the federation.
III. he legal and political antimonies of the federation and their elimination through the requirement of homogeneity.
1. he antimonies. he irst antimony is (a) the federation aims at selfpreservation, in particular the maintenance of the political independence
of every member. On the other hand, the membership in the federation
entails a lessening of this independence, for it leads to a renunciation of the
ius belli, the essential means of self-preservation, and to the renunciation
of self-help. his antimony involves the right of self-preservation of each
federation member.
he second antimony is (b) the federation member seeks to preserve
its political independence through the federation and to guarantee its selfdetermination. On the other hand, in the interest of the security of the federation, a federation cannot ignore the domestic afairs of its members.
Every federation leads to interventions. [371] Any genuine federation enforcement action is interference in domestic afairs, which subsumes the
fully independent self-determination of the afected state to the federation
and which eliminates its enclosed character and external impenetrability,
its “impermeability.” his antimony involves the right of self-determination
of every single federation member.
he third (most general) antimony is (c) every federation, independent
of the distinction between a state federation or federal state, has a collective will and political existence. In this way, it distinguishes itself from an
alliance. Consequently, existing alongside one another in every federation
are two types of political existence: the collective existence of the federation and the individual existence of the federation members. Both types of
political existence must continue to coexist as long as a federation is to remain in place. he collective existence of the federation must not subsume
the individual existence of the member states, nor can the existence of the
member states subsume that of the federation. he member states are not
simply subordinated, subjects of the federation, nor is the federation subordinated and subject to them. he federation exists only in this existential
connection and in this balance. From both directions, various levels of as388
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sociation are possible, the most extreme case of which always leads to the
fact that either the federation dissolves itself and only individual states still
exist or the individual states cease to exist, and there remains only a single
state. he essence of the federation resides in a dualism of political existence, in a connection between federalist togetherness and political unity,
on the one hand, and the persistence of a majority, a pluralism of individual
political unities, on the other. Such an intermediary condition necessarily
leads to many conlicts, which must be decided.
he question of sovereignty, however, is the decision on an existential
conlict. here are several methods for the peaceful resolution and mediation of disputes, but if the circumstances of the case demand a decision, and
only this case is at issue here, the political conlict cannot be resolved in a
judicial procedure. For this does not involve normative elements and statutory interpretations. As soon as the case is regulated by a conclusive, recognized norm, it does not simply lead to a genuine conlict. But if that type
of regulation is not present, the procedure does not, in fact, take a judicial
form. And a court, [372] which in lieu of stable, preexisting, general norms
decides a political conlict according to its own discretion, only appears to
be a court. Such an organ is either an oice of the federation or of one or of
several member states; it is always a party. A “mixed oice” would also be
inconceivable in regard to a genuine political conlict. If it should be composed with parity between the components, the number of the members
that are named by each party and that, in the absence of a bond to a statute,
are dependent and instructed by the party must be the same. For a decision
can only succeed when one or several of the appointed members fail to fulill the presuppositions of their appointment. Otherwise, this oice would
stand above the parties, not by virtue of the dependence on the statute,
which in fact alone establishes such independence, nor because of a norm
that is valid in the same way for both parties. It does so, rather, because of
its existence. his oice itself would be sovereign. It would no longer be
a court, but rather an existing political power, which, consequently, also
strives for its self-preservation. Many disputes, diferences of opinion, and
disagreements could be mediated by astute and just persons in good conscience. An existential conlict is not eliminated in this way. In every instance of a politically existing people, they necessarily decide the questions
of their political existence themselves and on their own responsibility. he
people can only decide as long as they exist politically. his is the case even
for determining whether an existential question is at issue.
his existential conlict is always possible in any independent entities
existing politically, and the question of sovereignty, in other words, of the
last existential decision, consequently always remains open. It can only
confuse the situation and is not a solution of the diicult question, if one
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389
intends to make use of, irst, a distinction between sovereign and nonsovereign states and, second, that between state federation and federal state
and say with the dominant theory of German public law (Laband, I, p. 91f.,
Haenel, I, p. 221, cf. Meyer-Anschütz, p. 48) that in a state federation the
individual states are sovereign, while in a federal state the state collective as
such is sovereign. hat is not at all an answer under the proper understanding of the signiicance of an existential conlict and of the essence of the
sovereign decision. For it only says that the state federation dissolves itself
in the case of conlict, but that the federal state [373] does not. In this way,
the collective will in a political sense is taken from the state federation. he
state federation is still only an interstate “relation” (which oddly enough,
however, like the German Federation, can wage war as such like the German Federation!). he federal state, by contrast, becomes a sovereign state
and loses its federal character because the independent decision on its political existence is taken from the states, and they are allowed only an “autonomous legal authority for legislation.” It is part of the essence of the
federation, however, that the question of sovereignty between federation
and member states always remains open as long as the federation as such
exists alongside the member states as such. If one speaks of a federation in
which the federation as such, not the member states, is sovereign; and if
one speaks of a construct in which only the “federation,” that is the collective as such, has political existence; then that is, in fact, a sovereign uniied
state. By this means, the actual problem of the federation is simply evaded.
he basis of this third, most general antimony is ultimately the fact that
every assemblage of independent political unities must appear as a contradiction in the context of a collective unity that also exists politically. Max
von Seydel cites with lively airmation the statement of a Frenchmen: “Il
ne peut y avoir deux unités, car l’essence de l’unité c’est d’être une,” which
translates as there cannot be two unities, for the essence of the unity exists
precisely in being a unity (statement of Léon, Abhandlungen, p. 19). hat
is correct for the case of conlict, despite the subtle distinctions of sovereign and nonsovereign “states.” he contradiction is evident in all essential conlicts inside the federation and in all famous, disputed questions
of federation law, so long as a political decision has not yet eliminated the
genuine federation balance. hus, for the constitution of the United States
of America, the actual fundamental questions had been discussed before
the war of secession. At that time, John C. Calhoun presented his famous
theses (his collected essays appeared in 1851), to which Max von Seydel explicitly appeals (Zur “Lehre von den Staatenverbindungen,” 1872, Abhandlungen, p. 15). Its theoretical signiicance for the concepts of a constitutional theory of the federation is even today still great and in no way settled
by the fact that in the war of secession the Southern states were defeated
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and that in the German Reich under Bismarck’s constitution, the dominant
theory [374] was content with a few antitheses and sham distinctions of
state and sovereignty, on the one hand, and state federation and federal
state, on the other. he theories of Calhoun and Seydel involve essential
concepts of constitutional theory for a federation, with the aid of which
one should recognize the distinctiveness of certain political formations,
and the scholarly value of which persists even if their creators stood on
the defeated side. Proving that the United States of America in its current
political form or the German Reich with its contemporary constitution are
deinitely “federations” is not the point. On the contrary, it is to ask, without preconceived concepts and expressions, whether even today a federation or only just the remnants of an earlier federation is at issue, remnants
that had been used as organizational elements in a state construction, or
that transformed themselves gradually out of genuine federal elements into
such organizational aids.
Calhoun’s most important theses involve the theory of the independent
sovereign rights of the states, state rights. According to Calhoun, these
rights are only limited insofar as this is explicitly provided in the constitution, while the supposition of the unlimited character of these rights speaks
in favor of the member states. he supposition of limitlessness, the “plenitude of state authority,” does not serve as a rule of interpretation for a particular statute. Instead, much like in the question of the monarchical principle, it serves as a logical formula for sovereignty. his theory, therefore, is
incorrect, because it presents the member states as sovereign, not the federation, which is just as unfair to the distinctiveness of the federation as the
opposite claim. Additionally, however, Calhoun grants the member states
a right to nulliication of federation statutes and actions. According to the
nulliication doctrine, an individual member state itself decides to deny a
federation action recognition and execution, if in the understanding of the
member state the federation’s constitutional powers are exceeded. In this
case, the popular assembly of the member state provisionally decides until a
three-fourths majority of the chamber of states of the federation recognizes
the constitutionality of the federal act. But even a constitution-amending
majority cannot eliminate the contractual foundations of the federation. If
a member state perceives its security and existence endangered and threatened and, according to its sovereign decision, [375] the federation powers
are being misused, it has a right to nullify the federation contract. his is
the right to secession. hese theses of Calhoun formed the theoretical justiication for the secession of the southern states, which led to the war of
secession of 1861–1865. Since the war ended with the defeat of the southern
states, the theory is settled for the United States of America. “Henceforth,”
N. Murray Butler argues, “the attempt to evade the predominance of the naConcepts of a Constitutional heory
391
tional (that is, federation) government is looked upon as rebellion, and for
this reason neither nulliication by any given state nor succession of a state
is permissible under the political system of the United States . . . From now
on, the highest court of law decides . . . So quickly did the war resolve all
the diicult questions that had exercised the legislative bodies, the courts,
and not least the people itself through two generations (N. Murray Butler,
Der Aufbau des amerikanischen Staates, p. 219). his “solution” of the question through war, however, only means that the constitution changed its
character and the federation as such ceased to be something determined by
war. he possibility of an existential conlict between the union and an individual or several member states is now precluded. he federal elements of
the constitution no longer involve the question of the independent political
existence of the states. Federalism, rather, only views the states as organizational components of extensive legislative autonomy and self-government.
In the question of secession, this fundamental problem of the federation
comes clearly into view. If the essence of the federation is that it should be
ongoing, the entry into the federation must mean the continual renunciation of the right to secession. If, however, the federation should simultaneously be a contract and the states of the federation should not lose their
independent political existence, then the federation members must remain
in the position of deciding for themselves the question of the current impossibility, applicability, and annullability of this “contract.” And that is precisely a right to secession. hey must opt either for the perpetuation of the
federation, in other words, for neither secession nor nulliication, or for the
independent political existence of the member states, speciically, for nulliication and secession, even if only in the most extreme case. But the concept of a political unity composed of states that is enduring and that, nevertheless, does not abandon its contractual foundation appears as something
contradictory in the highest degree.
2. he resolution of the antimonies of the federation is that every federation rests on an essential presupposition, speciically [376] of the homogeneity of all federation members, in particular on a substantial similarity
that justiies a concrete, existential agreement of member states and ensures
that the extreme case of conlict does not emerge within the federation. As
with democratic homogeneity (above p. 228), substance in this context can
also be part of diferent areas of human life. here can be a national, religious, cultural, social, class, or another type of homogeneity. Apart from
the case of the Federation of Soviet Socialist Republics, substance resides
mostly today in a national similarity of the population. Nevertheless, the
similarity of the political principle (monarchy, aristocracy, or democracy)
is still added to the homogeneity of the population as a further element of
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homogeneity. Deviations and diferences in fundamental questions, such
as the diference in the evaluation of slavery in the Northern and Southern
states of the American union, must come to a resolution if they are not to
endanger homogeneity.
Montesquieu proved the value of his state theory insight when he expressed this
essential presupposition of the federation. A federal constitution must be composed
of states with the same nature, above all, of republican states. “Que la constitution
federative,” he argues, “doit être composée d’états de même nature, surtout d’états
républicains.” Esprit des lois, IX, 2. For the spirit (esprit) of the monarchy is warlike
and inclines toward expansion; the spirit of the republic is peaceful and moderate
(Montesquieu is thinking here of the aristocratic republic, whose principle, according to him, is moderation). Be that as it may, opposing types of state principles and
political outlook cannot exist together in a federalist construct.
For that reason, most federal constitutions contain explicit guarantees of homogeneity. he actual substance of homogeneity is for the most part tacitly presupposed. he explicit guarantee usually involves the state form. hus Art. 4, section 4,
of the American federal constitution of 1787 contains a guarantee of the republican
state form. he German Federation of 1815 contains a guarantee already in Art. 13
of the Vienna Federation Acts, which provided for Land-level estate constitutions
of the member states. In Art. 57 of the Vienna Concluding Acts of 1820, the monarchical principle was expressly proclaimed as the state form for all members on an
equal basis (the minor exception of the free cities comes into consideration in this
context to the same limited degree as in the North German Federation of 1867 and
in the German Reich of 1871). Especially interesting in regard to this Art. 13 is a letter from Gentz of 16 February 1818 or 1817 (Wittichen III, pp. 384–85), which states
that if Land-level estate systems inside the federation exist alongside pure representative systems, then confusion and discord would emerge. “Such a circumstance,”
he argues, “had certainly neither been intended nor desired during the drafting of
the federal acts, nor even only accepted as possible, and it stands in unmistakable
contradiction with the concept of unity, of order, and of peace in Germany.” he
Frankfurt constitution of 1848/49 provided in Art. XII the comparability of the basic
rights on the foundation of [377] limited constitutions with certain minimal rights
of the popular assembly. According to § 195, every change in form of government in
an individual state is dependent on the consent of the Reich authority. In § 130, the
basic rights are presented as a norm for all constitutions of the individual states.
he German Reich under the 1871 constitution contains no explicit guarantee of
that type, but it is not based to a lesser degree on the fact that it was a federation of
monarchical states. On the resulting diiculty for the problem of a parliamentary
government in the Reich, see above § 25, pp. 333/34.
Art. 6 of the Swiss federal constitution of 29 May 1874 provides that “the cantons
are obligated to petition for the federation’s guarantee for their constitutions.
he federation takes up this guarantee insofar as:
(a) these cantonal constitutions contain nothing contrary to the provisions of the
federal constitution;
(b) they guarantee the exercise of political rights according to republican (representative or democratic) forms;
(c) they have been accepted by the people and can be revised, if the absolute
majority of the citizens demands it.”
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393
he Weimar Constitution guarantees homogeneity on the foundation of a constitutional democracy with a parliamentary government and thereby excludes both
the monarchy as well as a proletarian council system. Art. 17 stipulates that “every
Land must have the constitution of a free state. he popular assembly must be
elected by all men and women of the German Reich according to proportional representation in an election that is general, equal, direct, and secret. he Land government requires the conidence of the popular assembly.” On the fact that the German
Reich today is no longer a federation, see p. 388f.
(a) he solution of the irst antimony is that a state inside of a homogeneous community of states can forgo the ius belli and every form of selfhelp without denying or diminishing its will to self-preservation. For a war
receives meaning from being conducted in the interest of self-preservation
against a genuine enemy. In conceptual terms, the enemy is something existentially other and foreign, the most extreme escalation of the otherness,
which in the case of conlict leads to the denial of its own type of political
existence. An enduring and conclusive renunciation of war is only possible
and meaningful in regard to such states for which the possibility of the enmity is continuously and conclusively excluded. But that does not depend
simply on the good will of men. he best will is impotent in regard to the
concrete reality of diferent types of peoples and colliding interests and convictions. he existential distinctiveness of these peoples, interests, and convictions ind their political form in the state. Only if there is a substantial
comparability, an existential relationship, as can be the case, for example,
in states with a nationally comparable and similarly disposed population, is
it reasonably conceivable to consider hostility permanently precluded even
as a possibility. [378] Only in such a case can one forgo the ius belli permanently without this act of forbearance at the same time constituting a renunciation of state independence as well as of the right to the preservation
and to the security of the state’s own political existence. If each member
state also forgoes the jus belli against nonmembers and ascribes this right
exclusively to the federation, then it is presupposed that every member
state can have no enemy that is not simultaneously the enemy of all other
member states and of the entire federation. However, the federation cannot
have an enemy that would not at the same time be an enemy of every member state.
(b) he solution of the second antimony is that the will to selfdetermination, which belongs to anything that exists politically, is nulliied
or endangered only through interference that is foreign in existential terms.
Interventions of the federation in the afairs of its members are not a foreign interference, and they are politically and legally possible and bearable
because the federation rests on an existentially substantial similarity of the
members. For a monarchical, individual state of the 1871 German Reich, for
example, this did not signify a diminishment; that it could not transform
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itself into a democratic republic was a guarantee of its constitution-making
power.
(c) he solution of the third antimony is that the instance of conlict that
is decisive in existential terms is precluded in a substantial homogeneity
of the federation members. Sovereignty is also not absent in a federation.
But because the question of political existence can emerge diferently in
various areas, especially in terms of foreign and domestic politics, it is possible that the decision concerning a particular type of such question, for
example, questions of external political existence, lies with the federation.
By contrast, the decision concerning other such questions—for example,
the preservation of public security and order inside of a member state—remains with the member state. hat is not a division of sovereignty. It follows
from the coexistence of the federation with the federation members. here
is not a division because the instance of conlict that determines the question of sovereignty involves political existence as such and the decision in
the individual case is always entirely attributed to the one or the other. he
simple either/or that is part of sovereignty and does not permit a division
in substantive terms, or a limitation and halving, remains preserved therefore, [379] and the authors who stress the indivisibility of sovereignty in this
problem, as does Max von Seydel, are completely right. But because of this
substantial homogeneity, the deciding case of conlict between the federation and member states cannot emerge, so that neither the federation in regard to the member states nor the member state in regard to the federation
plays the sovereign. he existence of the federation rests fully on the fact
that this case of conlict is existentially excluded. hat can certainly not be
brought about through just any agreements, wishes, and urgent, persistent
requests. hat sort of thing would be empty and falsely conceived, if not
deceptive, as long as the existential similarity and relationship is absent.
However, where there is homogeneity, a federation is legally and politically
possible, and the substantial homogeneity inheres in every single constitutional provision as an essential presupposition. Where the substantial
homogeneity is absent, the agreement on a “federation” is an insubstantial
and misleading sham enterprise.
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395
§ 30.
Consequences of the Fundamental Concepts of the
Constitutional heory of the Federation
I. Political existence of the federation. Every federation has as such a political existence with an independent jus belli. he federation, on the other
hand, does not have its own constitution-making authority, because it rests
on a contract. Conditional jurisdiction for revisions of the federation order
is not constitution-making authority. On this issue, see below IV, 4a.
II. Federation as subject. Every federation as such is a subject in terms of
international as well as public law.
1. he capacity of an independent international law subject is already
ascribed to every federation because it necessarily assumes a ius belli and
the federation members, either entirely or in part, renounce their ius belli
in favor of the federation. he renunciation by the federation members of
their ius belli is not a renunciation extending into nothingness, but one in
favor of the federation.
What further consequences can be drawn from the federation’s international legal capacity for action is an organizational question.
It can be that the federation has an independent right of embassy like the German federation of 1815, and that as such it proclaims the international recognition of
foreign governments (for example, the decision of the [380] German Federation of
23 September 1830 on the recognition of the ascension to the throne of King LouisPhilippe, or of 4 October 1832 on the recognition of Prince Otto of Bavaria as king of
Greece). hat a distinct and independent recognition of foreign governments by the
individual member states is impossible is also accepted for the British global empire.
Compare Heck, Der Aufbau des Britischen Reiches, 1927, p. 35, on the recognition
of the Russian Soviet government through the English government and the validity
of this recognition for all dominions. On the fact that a declaration of war by Great
Britain or against it places the entire Reich territory into a state of war, see B. Mückenberger, Die britische Reichskonferenz und das Verfassungsproblem, Leipzig 1927,
pp. 73 and 94.
If the League of Nations were a genuine federation, it would have as such an ius
belli. Even here it is evident that the question regarding the distinguishing characteristics of the federation is the core question of the “federation” of peoples. Without
a clariication of this federation problem, all discussions move in a vicious circle as
soon as they impinge on the essential points. Characteristic of this is the statement
by Schücking and Wehberg in their commentary on the League of Nations’ by-laws,
2nd ed. 1924, p. 118, where they argue that “as a legal subject of international law, the
federation undoubtedly also has the right to declare war and to conclude peace.” In
fact, the opposite is the case. If the League of Nations has a jus belli, it is a subject
of international law in the full sense, and it can only have a jus belli if it is a genuine
federation.
2. he federation exists as public law subject because it is the bearer
of its own public law powers in regard to the federation members, and
the relations between the federation and member states have a public law
character. he status of every federation member state is qualiied through
membership in a special way not only externally, and membership in the
federation, consequently, has direct public law efects. here is no federation that is nothing more than an external relation among members with a
public law character. It suices to refer to two institutions essential to every
federation in order to make clear its capacity as a public law subject. hese
are a federal enforcement action and a federal intervention.
(a) During the federal enforcement action, the authority for which is necessarily accorded to the federation as such, the federation approaches, as a
public law organ, the member state against which the enforcement action is
directed and issues commands directly to the member state oicials, even
if otherwise the federation organization carefully attempts to avoid a direct legal authority for commands. hat the federal enforcement action is a
public law, not an international law act, is essentially part of the federation
character, because the enforcement action otherwise would be a war, which
would contradict the essence of the federation and dissolve it. he concept
of federal enforcement action, therefore, requires a public law connection.
(b) he federation’s right of intervention also leads to such directly public procedures and actions. Even if the intervention directs itself only to the
state as a whole, [381] it nevertheless directly involves domestic afairs and
has no international law character within the federation. When the question of the abolition of slavery was raised in the federation of the United
States of America, the Southern states were not permitted, if the federation should continue to exist in fact, to reject the discussion of these questions simply with the justiication that it involved “internal state afairs,”
“household” matters, “domestic afairs” [Schmitt’s English]. However, they
could make good on their right of secession and declare the federal contract a nullity, as they even attempted to do. Whether they did so rightly or
wrongly is another question. Yet as long as the federation existed, they were
not permitted to reject an act of interference by the federation in the same
way as under general international law principles a state rejects the intervention of a foreign state. In terms of international law, at least still today,
the independent states stand opposite one another as formations closed
to the outside, impenetrable, impermeable, or (according to the somewhat
banal American expression) “waterproof.” Internally, a federation cannot
be closed of and impermeable.
3. his public law character of every federation leads logically to federation law always having precedence over Land law to the degree that the
Consequences of Concepts of Constitutional heory
397
federation uses its authority to oppose the members, whether or not such
opposition only occurs in a very restricted ield. If we leave aside the fact
that the German Reich is today no longer a federation (p. 388) and that in
the framework of the Weimar Constitution Art. 13 gains its special meaning
through section 2 (resolution of diferences of opinion), then the provision
of Art. 13, 1, stipulating that “Reich law trumps Land law” conveys something self-evident in terms of federation public law. German legal history
explains the remarkable formulation of Art. 13. here is a legal saying that
formulated the relationship of local and territorial law to the common law.
It was then applied to the public law relationship of federation and members, formed on an entirely diferent basis, and was used as a slogan-like
turn of phrase in order to express something essentially diferent. More
speciically, with their entry into force, federation statutes that are valid for
the oicials and subjects of the member state are to be applied and obeyed
immediately as statutes even inside the member states without a special act
of adaptation. he federal law signiicance of the clause is that it [382] answers the question of whether directly applicable federal statutes are issued
for all oicials and subjects of the individual state or whether it requires
the formality of a special adaptation. According to Art. 13, it should not
require such a special adaptation. But even if such were required, and presupposing the procedurally correct issuance of statutes, there would naturally still be the unconditional constitutional duty of adaptation. However,
the legal nature of this adaptation within the alliance is something other
than a “transformation” in public law actions, which emerges on the basis
of an individual international law contract, is undertaken in fulillment of
an international law obligation, and is necessary for the internal state execution of the international law bond. he adaptation within the federation
is only one of the diferent types and cases of adaptation for the purpose
of execution. Even within a state, instructions to autonomous bodies, such
as to a religious society, for example, can be issued, necessitating adaptations for the legal relationships among persons within the instructed body.
Seen from the technical necessities of every large administrative apparatus,
adaptations could become necessary on an ongoing basis, if, for organizational reasons, a directive is not issued directly to the last administrative
oicial, but rather via the superiors through oicial channels. Often, the
public law situation is such that what can be demanded is not that an order
be actually carried out, but instead only that there be one. Similarly, what
can be demanded is that there is only the possibility of suspension, not that
something be suspended, as would be the case, for example, with the measures issued by the President under Art. 48, 3, p. 2, that are to be suspended
by order of the Reichstag. he presidential order that such a demand suspends is also an adaptation. he international law adaptation is now actu398
Consequences of Concepts of Constitutional heory
ally a “transformation,” for it contains a qualitative change of the legal nature of the afected instrument. An international law obligation of one state
to another state becomes the motive for the obligated state to undertake
domestic actions or to justify domestic obligations, etc. One can speak here
of an “adaptation” only imprecisely because what is absent is an identity of
and continuity between international law duty and domestic execution in
general. he “transformation” does not change an international [383] law
obligation into public law relations. Rather, it produces a new legal foundation and inserts it between international and public law. As presented
in H. Triepel’s fundamental work on international law and Land law from
1899, it provides a new source of law through which something qualitatively
new and diferent arises without legal continuity.
he “adaptations” within the federation, by contrast, arise from a constitutional duty of the federation members, hence directly from its public law
status. Moreover, they do not involve the relations of states, which stand
opposite one another in isolated impermeability, and which are not only
allied with one another but are also “bound” to one another. Consequently,
they do not signify a qualitative renewal and not an elimination of identity
for the “transformed” legal relations. he command issued in the fulillment of a federation duty, which issues from the central oices of the member state to the subordinate oicials or to the state subjects of the member
state, is the same command as that which issues from the federation to the
competent central oices of the member state. here is not a qualitative
diference here, but instead a thoroughgoing continuity.
III. Every federation has a federation territory. here is always a territorial demarcation of the federation as such against other, territorially demarcated political unities. he federation territory consists of the territories of
the federation, the member states. A territory dominated by the federation
as such (for example, federation colony) can be added to this. his last type
of territory, however, is “federation territory” in an entirely diferent sense
than the territory of the member states of the federation. A federation territory is necessarily part of the federation only in the sense of the state territory of the member states, while the federation territory in the sense of a
territory governed by the federation (federation Land, Reich Land, federation colony) does not necessarily belong to the federation. If several states
govern a territory in common, they still do not become a federation by
virtue of this, and the governed territory is also not a “federation territory.”
Otherwise, every condominium would establish a federation, which is undoubtedly not the case.
he Generality Lands of the United Netherlands until the uniication into a state
(1579–1795) and the confederation of American states 1778–1787 until the founding
of the territories governed by the Union, are examples of federation territories in the
Consequences of Concepts of Constitutional heory
399
second sense of the word developed here. In the framework of the German Reich
1871–1918, the Reich Land Alsace-Lorraine is not an example of a territory merely
governed by the federation. Rather, it was part of the federation territory in the
actual sense of the word, as even its population had state membership inside the
federation. Nevertheless, this form of a Reich Land signiies an unclear intermediary form.[384]
he League of Nations is not a federation. he territories of the member states
are not the territory of the League of Nations in the sense of the territorial government or federation authority. he League of Nations, however, also does not govern
a federation territory in the second sense of the word. On grounds of the Versailles
Treaty, the Saar territory is subjected to a provisional regime until the conclusive
determination of its political destiny. In the execution of this regime, interstate conferences and institutions become active as the federal council of peoples. hat is
not a sovereignty of the League of Nations. And the Saar territory is the territory
of the League to the same limited degree that the population of the Saar territory
attains state membership in the League of Nations. he mandate territories (according to Art. 22 of the League’s by-laws) are not governed by the League as such.
hey are, instead, partly protectorates, partly colonies under the rule of the mandate
states (above § 7, p. 71). At least, it should be said that the League is “sovereign.”
he League of Nations is an interstate relationship, not a federation. So it can also
not be the subject and bearer of a sovereignty, whether or not one would also like
to transfer a series of interstate functions and authorities to the institutions and
conferences of an interstate organization. H. Wehberg attempted to make the mandate territories into territories, in which a territorial government of the League is
exercised, in order in this way to construe a distinct federation territory and with it
a distinguishing conceptual feature of state existence. (“Besitz der Völkerbund ein
eigenes Territorium?” in the journal “Völkerbundfragen,” 1 June 1926, pp. 92/94).
He refers to the examples noted above to show that a state federation possesses
territories “for collective use” and intends to constitute the mandate territories according to the analogy of the previously mentioned “Generality Lands.” he circle in
which the mode of thought moves is entirely obvious. Naturally, if the League were
a genuine federation, it could also as such govern areas (whereby, moreover, the distinction, discussed above, of diferent types of “federation area” were still observed),
but the question is simply whether the League of Nations is a federation. If it is a
federation, the League’s supervision of the governance of the mandate states in the
mandate territories (which, again, is in itself very problematical) is not constituted
as the federation’s territorial authority. he question regarding the characteristics
of the genuine federation also proves itself to be the core question of the League of
Nations.
IV. Federation representation, institutions and oicials, federal jurisdiction.
1. he federation must be represented as a political unity. Naturally, the
representative of the federation is the federal assembly as the assembly of
representatives of the political entities that form the federation. If a more
select collegium has a representative property, that already signiies a transition to the uniied state.
he organization of the federation authorities and competencies cor400
Consequences of Concepts of Constitutional heory
responds in general to a simple scheme: collective assembly of all member
states, moreover, a more select (executive or even representative) collegium
as a “council” or “committee” and a bureau or oice for the administrativetechnical preparation and execution of the federation decisions.
As long as the federation exists, the will of the federation is directly the
[385] will of every member state. It is so, in other words, without transformation in the actual sense of the word. Even if the federation decisions
come about through unanimous decision of all members—not just by all of
the members present at the vote—and no one can be outvoted, there is still
an essential diference between a federation decision and the unanimous
decision of an international law conference, because the federation decision
needs no special ratiication through the individual states. More precisely,
every member state is constitutionally (because the federal constitution is a
component of its own constitution) bound directly and in public law terms
by the federation decision.
he League of Nation’s oicial decisions with a public law character apply without special ratiication directly to all member states. In this regard, the League of
Nations contains an element of a genuine federation organization, while otherwise
it is not a genuine federation. A confusion results from this combination that cannot be overlooked. On these decisions of the League of Nations, see H. Jahrreiß,
Völkerbundsmitgliedschaft und Reichsverfassung, 1926, whose expositions provide
the service of correctly recognizing the public law side of every federation, and
D. Schindler, Die Verbindlichkeit der Beschlüsse des Völkerbundes, Zürich 1927. he
essentially contradictory organization of the League of Nations institutions and thus
the necessity of a clariication of the federation concept become even more evident.
2. One must distinguish between the question of the direct command
authority of the federation in regard to oicials and state subjects of the
member states and the question of the direct constitutional, speciically,
public law obligation, of the member state. his question involves only the
type of adaptation within the federation, whether or not a direct power of
instruction of the federation authorities in regard to oicials of member
states is being introduced. Even if there is no direct power of instruction,
the necessary adaptation is not one from international law to the public law
of the member state. It is, by contrast, a public law process occurring within
the federation. On this, cf. above p. 381f.
3. he federation always has certain essential powers: an independent
jus belli externally, federal oversight (with the possibility of a federation
enforcement action and of an intervention by the federation) internally.
he additional competencies result from the constitutional legislation of
the federation ordinances, which is always a component of the member
state constitution. he question as to whether in this instance a supposition
speaks for or against the jurisdiction of the federation or for or against the
Consequences of Concepts of Constitutional heory
401
jurisdiction of the member states also belongs in the [386] constitutional
legislation of the federal constitution and is a question of the organization
of the concrete, individual federation.
It is often designated as a general principle of federal constitutional law that
the federation only has the competencies expressly delegated to it, while all other
competencies remain with the member states (cf. H. Kelsen, Kommentar zur österreichischen Bundesverfassung, Art. 15, 1, p. 80). his does not apply at this level of
generality. “he supposition of the unlimited powers” has a double meaning and can
have diferent functions: irst of deciding the question of sovereignty (on this, see
below under 4); second, however, of achieving a principle of interpretation in the
framework of the constitutional legislation, therefore, not for the sovereignty, but
for genuine, that is, unlimited competencies. In the latter case, it is a matter of the
constitutional legislation of the federal constitution. Initially, the additional question for this case is whether the express attribution of enumerated competencies
is to be interpreted restrictively (because every enumeration entails a limitation,
according to the principle enumeratio ergo limitatio), or whether additional competencies could, more accurately, evolve implicite from the attributed competencies
(on this, see H. Triepel, “Die Kompetenzen des Bundesstaates und die geschriebene
Verfassung,” in Festgabe für Laband, 1908, II, p. 249, and R. Grau, “Vom Vorrang
der Bundeskompetenzen im Bundesstaat,” Festschrift für E. Heinitz, 1926, p. 362).
If Triepel (Kompetenzen, p. 335) states “there are competencies in the federal state
indeed outside of the written constitution, but never outside of the federation,” it
is evident how much a general constitutional theory of the federation needs the
distinction between constitution and constitutional laws. he federal constitution is
self-evidently the foundation of all further discussions of the delimitation of powers
of the federation and of the member states, and there are no rights outside of the
federal constitution, but “written constitution” is meant here by Triepel certainly
only in the relative sense of a constitutional law. In the public law literature on Bismarck’s constitution, this opposition is recognizable throughout all the controversies (on the contractual foundations and elements of the constitution, on a unitary
state, and federalism). When R. Smend understands “contractual loyalty and federalist outlook” of the member states as a legal principle of the unwritten federation law
(in the essay, “Ungeschriebenes Verfassungsrecht im monarchischen Bundesstaat,”
Festgabe für Otto Mayer, Tübingen 1916, p. 260f.), his reasoning places the constitution prior to the constitutional law. he entire controversy (cf. the exposition of
Karl Bilinger, Der Einluß der Einzelstaaten auf die Bildung des Reichswillens, 1923,
p. 52f.) can only be explained and advanced through a proper constitutional concept. It is not a matter so much of the recognition that Bismarck’s “constitution” was
“complete” and “gapless” as it is of the awareness that in fact the opposition between
the constitution (in the positive sense) and constitutional law was the foundation of
the distinction between “written and unwritten constitution.”
4. he term the “competence-competence” of the federation can be intended in diferent ways.
(a) It can mean the constitutional jurisdiction for constitutional amendments or, more precisely, for the revision of constitutional provisions. his
competence is not boundless and inds its limits in the constitution (above
p. 102f.). It is possible that in the course of the historical development and
402
Consequences of Concepts of Constitutional heory
through exploitation of the possibility of constitutional revisions, [387] the
competencies of the federation are extended so far that the member states
no longer have signiicant powers and lose their political existence. he federation, therefore, makes a transition into a uniied state. By contrast, it
would doubtless be an ofence against the federal constitution if this competence for competencies, in other words, jurisdiction for constitutional
revisions, were to be used methodically for the elimination of the political
independence of the member states.
(b) Or it can be a mere accessory to a competence, in particular, the authority of every competent oicial, which is general and assumed in doubtful cases, to decide on the question of whether the prerequisites of their
jurisdiction are satisied. hen, a court can have a competence for competencies in the sense that it itself decides whether the access to courts is
permitted, whether the matter belongs before this court, etc. In Article 36,
5, of the governing statute of the permanent international court of justice
in he Hague, for example, it states: “If the jurisdiction of the permanent
international court of justice is challenged, the court decides itself.” Such a
competence for the determination of its own competence can become very
important and signiicant in practical terms (as in the aforementioned case
of the permanent international court of justice), but it only facilitates the
competence, to which it is added as a mere accessory.
(c) Another sense is an unbounded authority for all types of sovereign
acts. German public law theory of the Reich period understood the word in
this meaning (cf. Meyer-Anschütz, p. 692; Haenel, Studien I, p. 111; Staatsrecht, p. 771f.) and confused it with the competence for revision under Art.
78 of Bismarck’s constitution. When taken to mean “sovereignty,” however,
the concept “competence for competencies” is intrinsically contradictory.
Sovereignty is not a competence, not even a competence for competencies.
here is no boundless competence, if the word is to retain its sense, and
if a jurisdiction should be provided that is regulated in advance through
norms, factually circumscribed, and, consequently, bounded. he term
“competence for competencies” designates either a genuine competence,
which then means it has nothing to do with sovereignty and cannot even
be used as a formula for sovereignty, or it is a general slogan for a sovereign
power, which means it is not clear why one speaks here of “competence.”
V. Treasonous undertakings against the federation as such are to be
treated as high treason in every member state. he same is true for treason
against a Land and similar afairs. [388]
he previously discussed decision of the German Federation of 8 August 1836
concerning high treason in the German Federation is especially clear and logically
consistent in this regard. Because it extends far beyond its historical occasion and
concrete political goal, it is of general signiicance for the constitutional theory of
Consequences of Concepts of Constitutional heory
403
the federation. According to Art. I (printed in G. von Struve, Das öftentliche Recht
des Deutschen Bundes I, 1856, p. 247), “Since the purpose of the German Federation
consists not only in the preservation of the independence and inviolability of the
German states as well as in the preservation of the external and internal peace and
security of Germany; but rather also because the federal constitution, on account of
its essential connection with the constitutions of the individual federation states, is
to be viewed as an essential component of the latter; an attack directed against the
federation or its constitution necessarily entails an attack against each individual
member state. hus, every enterprise against the existence, integrity, security, or
constitution of the German Federation, undertaken in the individual states, is to be
judged and punished according to the standard of the most recently existing statutes
or those which come into efect in the future, statutes under which an action committed against the individual federal state were to be judged equally as high treason,
treason against the land, or under some other designation.”
VI. Democracy and federalism.
1. Both democracy and the federation rest on the assumption of homogeneity. On the place of this assumption in democracy, cf. above § 17, p. 228;
for the federation, cf. § 29, p. 376. If, however, a federation of democratic
states forms, the necessary consequence is that democratic homogeneity
converges with the federation-homogeneity. herefore, it is part of the natural development of democracy that the homogeneous unity of the people
extends beyond the political boundaries of member states and eliminates
the transitional condition of the coexistence of the federation and the politically independent member states, and replaces it with a complete unity.
his explains the development of most federal states of the nineteenth and
twentieth centuries, especially of the United States of America and of the German
Reich. To the same degree that democracy advanced, the political independence of
the member states also decreased. In the United States of America, this development already begins with the consent of the people in the individual states (in contrast to these states themselves) to the federal constitution (on this procedure, see
above p. 86). he preamble of the federal constitution, “We the people of the United
States,” caused Calhoun exceptional diiculties (Works I, p. 132f.). he war of secession settled conclusively the controversy over this development. In the German
Reich, it was the democratization of the year 1918/1919 that had a similar efect and
transformed the member states of the federation of the German Reich into “Lands.”
he federal state theories of Calhoun (for the United States of America) and Max
von Seydel (for the German Reich) are thereby superseded, but not because, considered in view of the proper concepts of federal law, they were wrong about everything. Instead, it was because the democratic development and in particular the
democratic consequence of the image of a united and undivided people within a
nationally homogeneous federation must lead to state unity. As soon as that is recognized, the remaining correct portion in the aforementioned federation theories
can also be unconditionally appreciated and used for constitutional theory.[389]
2. he connection of democracy and federal state organization leads to
a distinctive, independent type of state organization, to the federal state
without an alliance foundation. It is falsely assumed that that is a contradic404
Consequences of Concepts of Constitutional heory
tory concept. However, the federal state character concerns a constitutional
component in which elements from an earlier federalist organization are
incorporated into the new state form. Political formations like the United
States of America or the German Reich of the Weimar Constitution are no
longer a federation. If they are nevertheless designated federal states, then
on the basis of their constitution, by virtue of the positive decision concerning the type of political existence (Art. 2 RV), such formations intend
to guarantee the federal state character.
hrough the democratic concept of the constitution-making power of the entire
people, the alliance foundation and with it the federation character is eliminated.
he federal state organization, which nevertheless can still be retained, is then a part
of the constitutional organization of the entire state and establishes a special type of
state. hey usually bind themselves with organizational principles of the Rechtsstaat
and facilitate a complicated system of separation of powers and decentralization.
he constitution of the United States already has consciously intended that. he
Federalist (no. 49, 1788) states that the American federal constitution is neither an
entirely uniied state nor a fully federalist one. In this regard, the independence of
the states is used to give new security and guarantees to the organizational principle
of the bourgeois Rechtsstaat.
3. In the federal state without an alliance foundation, there is only a single
people. he state character of the prior member states is, therefore, eliminated. For the state is the political unity of a people, and in a state, whose
type and form of political existence rests on the constitution-making will
of the entire people, there can be no more than one political unity. Distinctively political decisions, such as the determination of friend and enemy
from its own political existence, can only lie in the entirety of this political
existence, just as is the case with the decision concerning other existential
concepts like public order and security. here is, consequently, only one political unity, while in every genuine federation—federation of states as well
as federal state—a multitude of political unities continue to exist alongside
the federation. he question of whether in the German Reich today there
is a people in the political sense besides a Prussian, Bavarian, Hamburgian,
etc., people is answered in the negative. he preamble of the Weimar Constitution rightly uses the apt turn of phrase “the German people united
in its origins.” It does not speak of a uniication or unity of the German
peoples. [390]
he consequence of this type of federal state organization of a single
people is that the earlier states are no longer units that are impenetrable
and closed of to one another. Not only is there a common jurisdiction,
as under Art. 3a of Bismarck’s constitution and under the even more extensive Art. 110 of the Weimar Constitution, but it also becomes possible
to distinguish the population of the member states and even parts of this
population from the member state as such. his distinction would be imConsequences of Concepts of Constitutional heory
405
permissible if the member state still had its own political existence, which,
from the democratic standpoint, would, indeed, be contradictory. his is
because in a democratic state, that is, one ordered according to the principle of identity, the will of the state is comparable with the will of the population and both may not be distinguished from one another.
4. Art. 18 regulates the procedure for a territorial rearrangement of the
Lands within the German Reich. Insofar as through these articles the will
of the population, whether it is of an entire Land or of an individual part of
the Land, contains public law meaning and is distinguished from the will
of the Land as such, the provisions of Art. 18 rest on the unitary logic of
democracy. Nevertheless, one cannot look upon it simply as a sign of the
unitary character of the current German Reich and see in it evidence for
the fact that one may not speak anymore at all of federal state organization.
“In which arsenal Art. 18 belongs, whether actually in the unitary and not,
more precisely, in the federalist,” is, as Anschütz (Veröfentlichungen der
Vereinigung der deutschen Staatsrechtslehrer, vol. I, 1925, p. 19) correctly
states, in fact still very questionable. For it was precisely federalist views
and tendencies that led to the currently valid provisions and their wording.
On the one hand, the article should make it possible to dissolve Prussia, because it appears too large owing to its disproportionate and overwhelming
territory, and, on the other hand, to eliminate the unviable dwarf lands and
irregular territories, because they are too small. hus, it should lead to the
formation of viable lands of approximately equal size. his regulation would
correspond to the idea of a so-called genuine (more accurately, balanced)
federalism (K. Frantz) in contrast to the “hegemonial” federalism considered and defended by K. Bilinger (Veröfentlichungen der Vereinigung der
deutschen Staatsrechtslehrer, p. 38). Apart from the diferent practical opportunities for application of Art. 18, which [391] could lead to unexpected
results, the following is authoritatively established as constitutional content
of this provision:
(a) Art. 18 regulates the procedure for the reconiguration and new construction of the German Lands and provides the Reich wide-ranging opportunities for the exercise of power, but not the authority to eliminate the
Lands altogether and to transform the German Reich into a unitary state,
whether it is with the help of Art. 18 or via Art. 76.
(b) he question of whether through a “constitutionally amending”
statute a speciic individual Land can be eliminated against its will is to be
airmed, but only under the presupposition that the elimination serves the
territorial regrouping of the Lands and not a unitary elimination of the federal state organization. Section 4 of the law on the provisional Reich authority of 10 February 1919 stated that the territorial circumstance of the
free states (of the Lands) could only be changed with their consent. his
406
Consequences of Concepts of Constitutional heory
provision is meaningless today, not only because this statute is eliminated
without reservation, but also above all, therefore, because in truth it signiies only a type of bylaw that the constitution-making national assembly
provided itself, and through which a constitutional guarantee of a territorial
status quo could not be justiied at all. he Weimar Constitution contains
neither a guarantee of the territorial status quo of the Lands as it was in the
year 1919 nor a guarantee of the existence of every individual Land existing
in 1919. An individual Land cannot be divided or incorporated into another
one against its will, whether on the basis of the will of the population (in
the event it should be possible that in a democratic Land a diference exists
between “will of the population” and “will of the Land”), or whether it is
through “constitution-amending Reich statute” by-way-of of Art. 76.
(c) By contrast, it would be unconstitutional to use Art. 18, which serves
a rational regrouping and, with it, the interest of the preservation of the
lands, to eliminate the federal state component of the Weimar Constitution. An act of the constitution-making power of the German people is part
of such a transformation of the contemporary German Reich into a uniied
state.
Consequences of Concepts of Constitutional heory
407
Appendix:
he Weimar Constitution
First Principal Part: Development and Responsibilities of the Reich
seCtion 1: Reich and Lands
Article 1
he German Reich is a republic.1 State authority derives from the people.
Article 2
he Reich territory consists of the areas of the German Lands. Other areas can
be incorporated into the Reich via statute, if the population of these areas desires it by virtue of the right of self-determination.
Article 3
he Reich colors are black-red-gold. he lag of the merchant marine is blackwhite-red with the Reich colors in the upper inside corner.
Article 4
he generally recognized rules of international law are valid as binding components of law at the Reich level.
Article 5
State power is exercised in Reich afairs by the organs of the Reich on the basis of
the Reich Constitution. In Land afairs, it is exercised by the organs of the Lands
on the basis of the Land constitutions.
Article 6
he Reich has exclusive legislative authority over:
1. foreign relations;
2. the colonial system;
3. citizenship, free movement; immigration, emigration, and deportation;
4. defense;
5. coinage;
6. customs’ system as well as the unity of the customs and trade areas and the
free movement of goods;
7. the postal and telegraph systems including the telephone system.
Article 7
he Reich has concurrent legislative authority over:
1. private law;
2. criminal law;
3. the judicial process including application of penalties as well as oicial aid
among authorities;
4. passport system and police authority over foreigners;
5. system of poverty relief and assistance for transients;
6. the press, associations, and assemblies;
7. population policy, care for mothers, infants, children, and the youth;
8. system of health care, of veterinary medicine, and the protection of plants
against disease and destructive elements;
9. labor law, insurance for and protection of workers, employees, and proof of
employment;
10. institution of professional representatives for the Reich territory;
11. care for war veterans and their dependents;
12. law of expropriation;
13. the socialization of natural treasures and economic enterprises as well as
the cultivation, production, distribution, and pricing of economic goods for the
public economy;
14. trade, the system of weights and measures, the issuance of paper money,
the banking and exchange systems;
15. traic in basic food stufs and luxury foods as well as in the articles of daily
need;
16. business and mining;
17. the insurance system;
18. shipping on the high seas, ishing on the high seas and along the coasts;
19. the railroads, travel by ship in the interior, traic with powered vehicles
on land, in water, and in the air as well as the construction of roads, insofar as it
involves general traic and the defense of the land;
20. theater and movie systems.
Article 8
he Reich has additional legislative authority over rents and other income, insofar as these sources of revenue can be claimed, in whole or in part, for its purposes. If the Reich claims rents or other income that previously were the jurisdiction of the Lands, then the Reich must take into account the preservation of
the viability of the Lands.
Article 9
To the extent that there is a need for the issuance of uniied provisions, the Reich
has legislative authority over:
1. provision for public welfare;
2. protection of the public order and security.
Article 10
Via legislation, the Reich can establish principles for:
1. the rights and duties of religious societies;
2. the school system including universities and scholarly bookstores;
3. the law for civil servants of all public bodies;
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Appendix
4. the law of landed property, distribution of land, system of settlements and
limited use property holdings, the obligations of landed property, the system of
living quarters, and the distribution of the population;
5. the burial system.
Article 11
Via legislation, the Reich can establish principles on the permissibility of Land
taxes and on the means of their generation, insofar as these principles are necessary, in order either to exclude or to protect important societal interests, such
as the following:
1. harm to the income or trade relations of the Reich;
2. double taxation;
3. excessive charges or those that hinder traic for the use of traic routes
and institutions;
4. tax disadvantages for wares introduced into a Land compared to its own
products in traic between individual Lands and parts of the Land or
5. export premiums to protect exclusive or important social interests.
Article 12
So long and insofar as the Reich makes no use of its legislative authority, the
Lands retain legislative authority. his provision does not apply to the Reich’s
exclusive legislative authority.
he Reich government has the right to challenge Land statutes passed in reference to the matters set forth in Art. 7, 13, insofar as the collective welfare is
afected.
Article 13
If there are doubts or diferences of opinion over whether a provision of Land
law is compatible with Reich law, then the competent, central Reich or Land
oicials may petition the opinion of a Reich high court, as speciied by a Reich
statute.
Article 14
Reich laws are executed by the oicials of the individual German Lands to the
extent that Reich statutes do not provide for something else.
Article 15
he Reich government exercises supervisory authority in those matters in which
the Reich has legislative jurisdiction.
To the extent that Reich statutes are executed by Land authorities, the Reich
government can issue general instructions. he Reich government is authorized
to send commissioners for the supervision of the execution of Reich statutes
to central Land oicials and, with the latter’s consent, to the lower oicials as
well.
At the formal request of the Reich government, Land governments are obligated to eliminate deiciencies in the execution of Reich statutes. When there is
a diference of opinion, both the Reich and Land governments can petition for
he Weimar Constitution
411
an opinion of the Staatsgerichtshof to the extent that another court is not speciied by Reich statute.
Article 16
Civil servants entrusted with the direct administration of Reich matters in the
Lands should typically be citizens of the Land. he civil servants, employees,
and workers of the Reich administration are to be used in their home areas, if
they wish, insofar as this is possible and does not conlict with concerns for the
training or requirements of the position.
Article 17
Every Land must have the constitution of a free state. he popular assembly must
be elected in an election by all men and women of the German Reich according to proportional representation, an election that is general, equal, direct, and
secret. he Land government needs the conidence of the popular assembly.
Article 18
Taking into account the greatest possible regard for the will of the participating
population, the formation of the Reich into Lands aims to facilitate the highest
economic and cultural achievement of the people. he alteration of the territory
of Lands and the new formation of Lands within the Reich take place through a
constitution-amending Reich statute.
If the directly participating Lands consent, such a change only requires a
simple Reich statute.
A simple Reich statute is also suicient, moreover, when one of the participating Lands does not consent, but when at the same time the territorial change
or rearrangement is demanded by the will of the population and is necessary for
an overriding Reich interest.
he will of the population is determined by a vote. he Reich government institutes the vote when it is demanded by one-third of the inhabitants of the area
to be divided who are eligible to vote for the Reichstag.
hree-ifths of the votes cast, but at least a majority of those entitled to vote,
is required for the conclusion of a territorial change or rearrangement. Even if
it is only a question of dividing a portion of a Prussian governmental district, of
a Bavarian district, or a corresponding administrative district in another Land,
the will of the population of the entire district under consideration must be determined. When there is no spatial connection between the area to be divided
and the entire district, a special Reich statute can declare the will of the afected
area’s population to be suicient.
After the determination of the consent of the population, the Reich government must present to the Reichstag a corresponding statute for inal approval.
If in regard to the uniication or division there is a dispute over wealth issues,
then, on petition by one of the parties, the Staatsgerichtshof of the Reich decides
the question.
412
Appendix
Article 19
In response to a petition from one of the parties, the Staatsgerichtshof for the
German Reich decides constitutional disputes inside a Land, for which no court
exists to settle it, as well as disputes of a non–private law nature between different Lands or between the Reich and a Land, to the extent that another court
does not have jurisdiction.
he Reich President enforces the judgment of the Staatsgerichtshof.
seCtion 2: he Reichstag
Article 20
he Reichstag is composed of deputies of the German people.
Article 21
Deputies are representatives of the entire people. hey are subject only to their
own conscience and are not bound by instructions.
Article 22
Deputies are elected in general, direct, equal, and secret elections by men and
women over twenty years of age according to the principles of proportional election. Election day must be a Sunday or a public holiday.
Details are determined by the Reich Election Law.
Article 23
he Reichstag is elected every four years. A new election must take place at
the latest on the seventeenth day after the expiration of the Reichstag’s term of
oice.
At the latest, the Reichstag convenes for the irst time on the thirteenth day
after the election.
Article 24
he Reichstag assembles every year on the irst Wednesday of November at the
seat of the Reich government. he president of the Reichstag must convene it
earlier if the Reich President or at least a third of the members of the Reichstag
demands it.
he Reichstag determines the conclusion of the session and the day of its
reconvening.
Article 25
he Reich President can dissolve the Reichstag, but only once for the same reason.
he new election takes place on the seventeenth day after the dissolution.
Article 26
he Reichstag elects its president, his deputy, and its secretaries. It determines
its own order of business.
he Weimar Constitution
413
Article 27
Between two sessions or electoral periods, the president and his deputy continue their business from the last session.
Article 28
he president enforces house rules and exercises police authority within the
Reichstag building. he house administration is subject to his authority; he
orders income and expenditures of the Reichstag according to the standards of
the Reich budget, and he represents the Reich in all legal business and legal disputes involving its administration.
Article 29
he Reichstag conducts its business publicly. On petition of ifty members, the
public can be excluded by a two-thirds majority vote.
Article 30
Accurate reports on deliberations in public sessions of the Reichstag, of a Land
parliament, or its committees remain free of any accountability.
Article 31
In the Reichstag, an electoral review commission is formed. It also decides the
question, whether a deputy lost member status.
he Electoral Review Commission is composed of members of the Reichstag,
which selects them for the election period, and of members of the Reich administrative court, which the President orders on suggestion of the presidium of this
court.
he Electoral Review Commission conducts business on the basis of public,
oral deliberation by three members of the Reichstag and two judicial members.
Beyond the deliberations before the Electoral Review Commission, the procedure will be led by a Reich commissioner, whom the Reich President names.
Otherwise, the procedure is regulated by the Electoral Review Commission.
Article 32
A simple majority vote is required for a decision of the Reichstag, insofar as the
Constitution does not prescribe another proportion of the vote. he order of
business can permit exceptions to votes undertaken by the Reichstag.
he order of business will regulate the requirements for a valid decision.
Article 33
he Reichstag and its committees can demand the presence of the Chancellor
and any minister.
he Chancellor, the ministers, and deputies commissioned by the Chancellor
have access to the meetings of the Reichstag and its committees. Lands are authorized to send to these meetings representatives empowered to act on their behalf,
and they present the Land government’s viewpoint on the matter in question.
If the Reich government insists, the government representatives must be
heard during deliberations, even if they are not part of the day’s agenda.
hese representatives submit to the authority of the chair of the session.
414
Appendix
Article 34
he Reichstag has the right and, on petition of one-ifth of its members, the duty
to initiate investigative committees. In public proceedings, these committees
raise the evidence that they or the petitioners deem necessary. A two-thirds majority vote can exclude the public from the investigative committees. he order
of business governs the committees’ procedure and determines the number of
its members.
he courts and administrative oicials are obligated to respond to the committees’ request for evidence; oicial documents are to be presented to the committees if they request them.
he provisions of the law of criminal procedure are appropriately applied to
the investigations of the committees and the oicials investigated by them, but
the secrecy of letters, packages, telegraph, and telephone is unafected.
Article 35
he Reichstag establishes a standing committee for foreign afairs, which can
meet even when the Reichstag is not in session and after the end of the election
period or after the dissolution of the Reichstag until the convening of the new
Reichstag. he meetings of this committee are not public, unless the committee
decides otherwise with a two-thirds vote.
he Reichstag also establishes a standing committee for the preservation of
the rights of the popular assembly in regard to the Reich government during the
period outside the legislative session and after the end of the electoral period.2
hese committees have the authority of investigative committees.
Article 36
No member of the Reichstag or of an individual Land parliament may be prosecuted judicially or internally at any time because of their vote or because of
statements made in the exercise of their duty or otherwise be made accountable
outside of the assembly.
Article 37
No member of the Reichstag or of an individual Land parliament, without approval of the house to which they belong, may be investigated or arrested during
the session because of an action subject to criminal sanction, whether or not the
member is apprehended in the act or at the latest during the following day.
he same approval is necessary for any other limitation of personal freedom
that impinges on the exercise of the deputy’s duty.
Every criminal trial against a member of the Reichstag or of an individual
Land parliament and every arrest or other limitation of his personal freedom is
abrogated on demand of the house to which he belongs for the duration of the
legislative session.
Article 38
he members of the Reichstag and of the Land parliaments have the right to
refuse to provide testimony concerning persons who have conided in them in
their capacity as deputies or to whom they have conided in their capacity as
he Weimar Constitution
415
deputies, insofar as this testimony involves these matters in particular. Even in
regard to the coniscation of oicial papers, deputies are in the same position as
persons who have a statutory right to conidentiality.
A search or coniscation may only be undertaken in the rooms of the Reichstag with the consent of the president of the Reichstag.
Article 39
Civil servants and members of the armed forces do not require vacation time to
exercise their oice as members of the Reichstag or of a Land parliament.
Article 40
Reichstag members receive the right to free passage on all German railroads as
well as compensation for expenses according to the dictates of a Reich statute.3
seCtion 3: he President and the Reich Government
Article 41
he President is elected by the entire German people.
Any German over the age of thirty-ive is eligible for election.
Article 42
he President takes the following oath before the Reichstag on assuming his
oice:
I swear that I will dedicate my strength to the well-being of the German
people, multiplying their advantages, protecting them from harm, protecting
the Constitution and the laws of the Reich, fulilling my duties conscientiously,
and extending justice toward all.
he addition of a profession of religious faith is permitted.
Article 43
he President’s term of oice is seven years. Reelection is permitted.
Before the expiration of the term, the President can be removed by popular
vote at the instigation of the Reichstag. he Reichstag vote requires a two-thirds
majority. By this decision, the President is prevented from further exercise of the
oice. he rejection of the removal by the popular vote counts as a new election
and results in the dissolution of the Reichstag.
he President cannot be prosecuted under criminal law without consent of
the Reichstag.
Article 44
he President cannot simultaneously be a member of the Reichstag.
Article 45
he President represents the Reich in terms of international law. In the name of
the Reich, he concludes alliances and treaties with foreign powers. He conirms
and receives ambassadors.
Declaration of war and conclusion of peace require a Reich statute.
Alliances and treaties with foreign states, which involve objects of Reich
legislation, require the consent of the Reichstag.
416
Appendix
Article 46
he President names and dismisses civil servants and oicers, insofar as something else is not provided by law. He may allow other oicials to exercise the
authority of appointment and dismissal.
Article 47
he President has high command of the entire armed forces of the Reich.
Article 48
If a Land does not fulill its duties according to the Reich Constitution or Reich
statutes, the President can compel it to do so with the aid of armed force.
If in the German Reich the public security and order are signiicantly disturbed or endangered, the President can utilize the necessary measures to restore public security and order, if necessary with the aid of armed force. For
this purpose, he may provisionally suspend, in whole or in part, the basic rights
established in Articles 114, 115, 117, 118, 124, 153.
he President must inform the Reichstag without delay of all the measures
instituted according to paragraph 1 or paragraph 2 of this article. he measures
must be set aside at the request of the Reichstag.
In the case of immediate danger, the Land government can institute for its
territory the type of measures designated in paragraph 2 on an interim basis.
he measures are to be set aside at the demand of the President or the Reichstag.
A Reich statute determines the details of these provisions.
Article 49
he President exercises the right of pardon for the Reich.
Reich amnesties require a Reich statute.
Article 50
In order to be valid, all orders and legal instruments of the President, even those
involving the defense forces, require the countersignature by the Chancellor or
the minister with jurisdiction. With the countersignature, responsibility is assumed.
Article 51
In case of incapacitation, the Chancellor will initially substitute for the President.4
he same applies for the case of an early end to a presidency until a new election is carried out.
Article 52
he Reich government consists of the Chancellor and the ministers.
Article 53
he Chancellor and, at his suggestion, the ministers are appointed and dismissed
by the President.
he Weimar Constitution
417
Article 54
he Chancellor and ministers require the conidence of the Reichstag for the
execution of their oice. Each of them must resign if the Reichstag withdraws its
conidence through an explicit decision.
Article 55
he Chancellor chairs the Reich government and guides its business according
to the rules of procedure determined by the Reich government and approved by
the President.
Article 56
he Chancellor determines the guiding principles of policy and bears responsibility for this policy before the Reichstag. Within these guiding principles, every
Reich minister administers his assigned portfolio independently and under his
own responsibility before the Reichstag.
Article 57
he ministers must submit to the Reich government for debate and decision
all statutory drafts. Moreover, they must also do so when the Constitution or
statute requires debate and decision, as well as for diferences of opinion over
questions that involve the portfolios of several ministers.
Article 58
he Reich government reaches decisions by majority vote. Ties are broken by
the vote of the chair.
Article 59
he Reichstag is authorized to raise charges against the President, the Chancellor, and ministers before the Staatsgerichthof for the German Reich, claiming
that they have intentionally violated the Reich Constitution or a Reich statute.
he petition for the lodging of the indictment must be signed by at least one
hundred members of the Reichstag and requires the consent of the majority
prescribed for constitutional amendments.
seCtion 4: he Reichsrat
Article 60
A Reichsrat is formed for the representation of the German Lands in the areas
of legislation and administration of the Reich.
Article 61
Every Land has at least one vote in the Reichsrat. he larger Lands receive one
vote for every one million inhabitants. Any inhabitant surplus beyond an even
million or even several millions that matches the inhabitant count of the smallest Land shall be rounded of to the next million.5 No Land may be represented
by more than two-ifths of all votes.
After its incorporation into the German Reich, the German portion of Austria has the right of participation in the Reichsrat with a number of votes corre-
418
Appendix
sponding to its population. Until that time, the German portion of Austria may
participate in debates.6
he number of votes is reset by the Reichsrat after every general census.
Article 62
In the committees that the Reichsrat forms from its membership, no Land has
more than one vote.
Article 63
he Lands are represented in the Reichsrat by the members of their governments. However, according to the dictates of a Land statute, half of the Prussian
votes are provided by the Prussian provincial administration.
he Lands are authorized to send as many representatives to the Reichsrat as
they have votes.
Article 64
he Reich government must convene the Reichsrat when a third of the Reich
government’s members demand it.
Article 65
A member of the Reich government holds the chair in the Reichsrat and its committees. he members of the Reich government have the right and, on demand,
the obligation to participate in the proceedings of the Reichsrat and its committees. Whenever they request it, they must be heard during debate.
Article 66
he Reich government as well as every member of the Reichsrat is authorized to
initiate petitions in the Reichsrat.
he Reichsrat regulates its proceedings through rules of procedure.
he plenary sessions of the Reichsrat are public. According to the dictates of
the rules of procedure, the public can be excluded in the case of individual matters of debate.
Article 67
he Reichsrat is to be kept informed by the Reich ministers about the conduct of
Reich business. he Reich ministers should inform the competent committees of
the Reichsrat about debates on important matters.
seCtion 5: Reich Legislation
Article 68
Proposed statutes are introduced by the Reich government or by the membership of the Reichstag.
Reich statutes are passed by the Reichstag.
Article 69
he introduction of proposed statutes of the Reich government requires the consent of the Reichsrat. If an agreement between the Reich government and the
he Weimar Constitution
419
Reichsrat does not come about, the Reich government can nevertheless introduce the proposal, but it must also present the Reichsrat’s conlicting view.
If the Reichsrat passes a proposed statute, to which the Reich government
does not consent, then the Reich government must introduce the proposal into
the Reichstag for consideration of the Reichsrat’s position.
Article 70
he President has to process statutes arising in a constitutional manner and promulgate them in the Reich Legal Gazette within the legally required one-month
period.
Article 71
Reich statutes enter into force fourteen days after the Reich Legal Gazette is distributed in the capital, so long as nothing else has been provided.
Article 72
he promulgation of a Reich statute is postponed for two months when a third
of the Reichstag demands it. he President can promulgate statutes that the
Reichstag and the Reichsrat declare pressing, regardless of this demand.
Article 73
A statute concluded by the Reichstag is brought to a referendum before its promulgation if the President so decides within a month of its passage.
A statute whose promulgation is requested by petition of at least a third of
the Reichstag is submitted to a referendum if one-twentieth of those entitled to
vote demand it.
Additionally, a popular vote should be held if a tenth of those entitled to vote
present the demand for the submission of a draft statute. A completed draft
statute must be the foundation of the initiative. It must be presented to the
Reichstag by the Reich government with its recommendations. he referendum
does not take place if the desired draft statute has been accepted unchanged by
the Reichstag.
Only the President can institute a referendum on the budget, expenditures,
and compensation systems.
A Reich statute regulates the procedure during the referendum and during
the initiative.
Article 74
he Reichsrat may object to a statute concluded by the Reichstag.
he objection must be introduced by the Reich government within two weeks
after the inal vote in the Reichstag and must be supplied with reasons within an
additional two weeks.
In cases of objection, the statute is presented to the Reichstag for an additional vote. If no agreement between the Reichstag and the Reichsrat is reached
in this way, the President can order a referendum on the matter of dispute within
the following three months. If the President makes no use of this authority, then
the statute counts as not having come about. If the Reichstag votes with a two-
420
Appendix
thirds majority against the objection of the Reichsrat, the President must promulgate the statute in the form concluded by the Reichstag or call for a referendum.
Article 75
A decision of the Reichstag can be suspended by referendum only when the majority of enfranchised voters participate in the vote.
Article 76
he Constitution can be amended via legislation. However, a decision of the
Reichstag regarding the amendment of the Constitution only takes efect when
two-thirds of those present consent. Decisions of the Reichsrat regarding amendment of the Constitution also require a two-thirds majority of the votes cast. If
a constitutional amendment is concluded by initiative in response to a referendum, then the consent of the majority of enfranchised voters is required.
If the Reichstag passes a constitutional change against the objection of the
Reichsrat, the President is not permitted to promulgate this statute if the Reichsrat demands a referendum within two weeks.
Article 77
To the extent the law does not provide otherwise, the Reich government issues
the necessary general administrative provisions for the enforcement of Reich
statutes. he Reich government requires the consent of the Reichsrat when Land
oicials are authorized to execute Reich statutes.
seCtion 6: Reich Administration
Article 78
he cultivation of relations with foreign states is exclusively a matter for the
Reich.
Lands can conclude agreements with foreign states in matters for which they
have legislative jurisdiction; the agreements require the consent of the Reich.
Agreements with foreign states on the alteration of Reich boundaries are
inalized by the Reich after the consent of the afected Land. he boundary
changes occur only on the basis of a Reich statute to the extent that it is not a
mere correction of the boundaries of an uninhabited area.
In order to ensure the representation of interests of individual Lands that
arise from their special economic relationships or from their position as neighbors of foreign states, the Reich will provide the necessary institutions and measures in agreement with the afected Lands.
Article 79
he defense of the Reich is a matter for the Reich. he German people’s defense
system is regulated by a Reich statute in a uniied manner with a view to the
special circumstances of the people of individual Lands.
Article 80
he colonial system is exclusively a Reich concern.
he Weimar Constitution
421
Article 81
All German merchant ships form a uniied trade leet.
Article 82
Germany forms a customs and trade area, surrounded by a common customs
boundary.
he customs boundary coincides with the boundary to foreign territory. At
sea, the coast of the dry land and the islands belonging to the Reich form the
customs boundary. Deviations from the customs boundary can be provided for
those portions of it along the sea and along other bodies of water.
Foreign state areas or portions of territory can be added to the customs zone
by state treaties or agreements.
According to special need, portions of the customs zone can be excluded
from it. For free harbors, these exceptions can only be eliminated through a
constitutional amendment.
Customs exceptions can be added to a foreign customs zone by state treaties
or agreements. All products of nature as well as works of art and objects of commerce that move in the free traic of the Reich can be brought into, out of, or
through the boundaries of the Lands and communities. Exceptions are permissible on the basis of a Reich statute.
Article 83
Tarifs and excise taxes are administered by Reich oicials.
In the administration of Reich taxes by Reich oicials, there is provision for
institutions that make possible the preservation for the Lands of special Land
interests in the areas of agriculture, trade, acquisition, and industry.
Article 84
he Reich establishes provisions for:
1. the institution of tax administration of the Lands, insofar as it requires the
uniform and equal execution of Reich tax laws;
2. the establishment and powers of the oicials entrusted with the supervision of the execution of Reich tax laws;
3. settling accounts with the Lands;
4. compensation for the administrative costs resulting from the execution of
Reich tax laws.
Article 85
All income and expenditures of the Reich must be printed and placed in the
budgetary plan.7
he budgetary plan is established by statute before the beginning of the budgetary year.
As a rule, the expenditures are approved for a year; in special cases, they
can also be approved for a longer period. Otherwise, provisions that extend beyond the inancial year or do not make reference to the income and expenditures of the Reich or its administration are impermissible in the Reich budget
statute.
422
Appendix
In the draft budgetary plan, the Reichstag cannot raise or reset expenditures
without the approval of the Reichsrat.
Article 86
he Reich inance minister makes a report to the Reichsrat and Reichstag that
conirms the probity of the Reich government in the use of all Reich income.
his accounting report is regulated by Reich statute.
Article 87
Funds in the form of credits may be established only in cases of dire need and,
as a rule, only for expenditures for recruitment purposes. Such an establishment
as well as assumption of a security service by the Reich may only be pursued on
the basis of a Reich statute.
Article 88
he postal and telegraph systems, including the telephone system, are exclusively a Reich concern.
he denomination of postage stamps is uniform for the entire Reich.
With the consent of the Reichsrat, the Reich government issues the decrees
that set the principles and fees for the use of traic facilities. It can delegate this
authority to the Reich postal minister with the consent of the Reichsrat. Also
with the consent of the Reichsrat, the Reich government can establish a council
with powers of deliberative consultation in matters of tarifs and of postal, telegraphic, and telephone traic.8
he Reich alone consummates treaties on traic abroad.
Article 89
It is the duty of the Reich to assume ownership of trains that serve general traic
and to administer them as a uniied means of traic.
he right of the Lands to acquire private railroads is transferred to the Reich
on its demand.
Article 90
With the takeover of the railroads, the Reich assumes the power of expropriation
and the state right of supremacy in regard to the railroad system. In case of dispute, the Staatsgerichtshof decides on the scope of these rights.
Article 91
With the consent of the Reichsrat, the Reich government issues decrees that
regulate the construction and operation of railroads as well as traic on them.
It can delegate this authority to the competent minister with the consent of the
Reichsrat.
Article 92
Without regard to the inclusion of their budget and their accounts into the general budget and the general accounts of the Reich, the Reich railroads are to be
administered as an independent, economic enterprise meant to fulill its obligations itself, including paying interest and retiring railroad debt, and to collect
he Weimar Constitution
423
the railroad reserve funds. he level of interest and reserve funds as well as the
purposes of the reserve funds are regulated by special statute.
Article 93
With the consent of the Reichsrat, the Reich government establishes on behalf
of the Reich railroads advisory boards for expert consultation in the matters of
railroad traic and tarifs.
Article 94
If the Reich has taken over the railroads of a certain area that serve general
transportation, then new railroads that serve general transportation may be
built within this area only by the Reich or with its consent. If the construction
of new railroad facilities or the alteration of existing ones has an impact on the
Land police, the Reich railroad administration must hear the case of the Land
oicials before coming to a conclusion about the matter.
Where the Reich has not yet incorporated the railroads into its administrative system, the Reich by statute can include them in its accounts when it deems
this necessary for general traic or for the defense of the Land, even against the
objection of the Lands, whose territory is traversed, but without prejudice to
the Land’s rights of supreme authority. Under the same conditions, it can assign
another organization the task of their construction, when necessary conferring
on it the authority of expropriation.
Any railroad administration must assume the costs of any annexation of
other railroads.
Article 95
Railroads for general transportation not administered by the Reich are subject to
Reich supervision. he railroads subject to Reich supervision are bound equally
by the principles established by the Reich and are to be outitted in accord with
these principles. hey are to be maintained in a secure operating position and
to be expanded in accord with the demands of transportation. Transportation of
goods and persons is facilitated and developed in accord with need.
In the supervision of the tarif system, efort must be made to achieve equal
and low railroad tarifs.
Article 96
At the demand of the Reich, all railroads, even those that do not serve general
transportation, must submit to use for the purpose of Land defense.
Article 97
It is the duty of the Reich to assume ownership of the waterways that serve general transportation and to administer them itself.
After the takeover, the waterways that serve general transportation can be
put to use or expanded only by the Reich or with its consent.
Regarding the administration, expansion, or new construction of waterways,
the needs of the Land culture and of the waterway economy must be preserved
in agreement with the Lands.
424
Appendix
Any waterway administration is permitted to incorporate other internal
waterways at the cost of the entrepreneurs. he same obligation exists for the
establishment of a connection between internal waterways and railroads.
As the transfer of the waterways is undertaken, the Reich retains the power of
expropriation, authority over tarifs, as well as police authority over the current
and ship movements.
he duties of the current building associations regarding the expansion of
natural waterways in the Rhein, Weser, and Elbe areas are to be assumed by the
Reich.
Article 98
he Reich government, with the consent of the Reichsrat and according to its
more detailed order, can establish advisory bodies for consultation on afairs of
the waterways.
Article 99
Taxes may be raised for such works, institutions, and other facilities on the natural waterways that are provided for the easing of traic. In regard to state and
community facilities, these taxes may not exceed the costs necessary for their
manufacture and maintenance. he production and maintenance costs for facilities that are not exclusively for the easing of traic but rather are established for
the promotion of other purposes may be met only through a proportional share
of shipping taxes. Interest and debt retirement payments for the means used
count as production costs.
he provisions of the previous sections are applicable to taxes that are raised
for the artiicial waterways as well as for the facilities in such waterways and in
ports.
In the realm of domestic shipping, the total costs of a waterway, of a river
basin, or of a waterway network may provide the basis for setting the shipping
tax.
hese determinations are valid for all manner of conveyance on navigable
waterways.
Only the Reich may place other or higher taxes on foreign ships and their
cargoes. For the creation of means for the maintenance and the expansion of
German waterways, the Reich can by statute even induce those participating in
shipping to contribute in another way.
Article 100
In regard to the costs of maintenance and construction of interior waterways, a
Reich statute can even determine who makes use of the construction of dams in
ways other than travel, insofar as several Lands participate or to the extent the
Reich assumes the costs.
Article 101
It is the duty of the Reich to expropriate and administer all seacoasts, especially
lighthouses, ire boats, buoys, docks, and markers. After the assumption of con-
he Weimar Constitution
425
trol, maritime designations can still only be produced or expanded by the Reich
or with its consent.
seCtion 7: he Administration of Justice
Article 102
Judges are independent and subject only to the law.
Article 103
Ordinary adjudication is exercised by the Reichsgericht and by the Land
courts.
Article 104
Judges of ordinary judicial claims are appointed for life. hey can be deprived of
their oice against their will, either permanently or temporarily, or be placed in
another position or put in retirement only as a result of a judicial decision and
only for reasons and under the forms that are set by law. Legislation can establish age limitations when judges can enter retirement.
Temporary release from duty, which is introduced by virtue of law, is not
hereby afected.
In the course of introducing changes in the institution of the courts or of
their districts, the Land judicial administration can make involuntary transfers
to another court or removals from oice, but only with continuation of full pay.
hese provisions do not apply to trade judges, lay judges, and juries.
Article 105
Exceptional courts are not permitted. No one may be removed from the jurisdiction of a judge established by law. he statutory provisions on wartime courts
and status courts are not hereby afected. he military honor courts are eliminated.
Article 106
Military justice is to be eliminated except for times of war and on board warships. A Reich statute regulates the details.
Article 107
In the Reich and the Lands, there must be administrative courts that operate
according to the standards of the law for the protection of the individual against
the orders and legal instruments of administrative oicials.
Article 108
A Staatsgerichtshof for the German Reich is established according to the standards of Reich law.
426
Appendix
Second Principal Part: Basic Rights and Duties of Germans
seCtion 1: he Individual
Article 109
All Germans are equal before the law. Men and women in principle have the
same state civil rights and duties.
Privileges or disadvantages of birth or of status that are based in public law
are to be eliminated. Signs of nobility are valid only as part of the name and may
no longer be conferred.
Titles may only be conferred when they designate an oice or a profession;
academic degrees are not afected.
Orders and honorary titles may not be awarded by the state.
No German may accept a title or order from a foreign government.
Article 110
State ailiation in the Reich and the Lands is attained and lost according to provisions of a Reich statute. Every member of a Land is simultaneously a member
of the Reich.
Every German has the same rights and duties in any Land as the members of
the Land themselves.
Article 111
All Germans enjoy free movement in the entire Reich. Every German has the
right to stop in and to remain in any given place in the Reich. hey may acquire
pieces of property and obtain means of sustenance. A Reich statute permits limitations.
Article 112
Every German has the right to emigrate to non-German countries. Emigration
may only be restricted by statute.
All state members have a claim to the protection of the Reich both inside and
outside Reich territory.
No German may be delivered to a foreign government for the purposes of
prosecution or punishment.
Article 113
he population segments in the Reich speaking a foreign language cannot be
hindered, by legislation and administrative means, in their development as a
people, particularly not in the use of their mother tongue in school as well as in
the domestic administration and legal process.
Article 114
he freedom of the person is inviolable. An infringement on or deprivation of
personal freedom by the public authority is permissible only on the basis of statutes.
Persons deprived of freedom are to be informed by the next day at the latest
by which oicials and for what reasons the deprivation of freedom has been
he Weimar Constitution
427
ordered; without delay, the opportunity should be given them to present objections against the deprivation of their freedom.
Article 115
he living quarters of every German is for him a sanctuary and is inviolable.
Exceptions are permissible only on the basis of statutes.
Article 116
An action can only be punished when its punishable character was deined by
statute before the action occurred.
Article 117
he privacy of letters as well as of the mail, telegraphs, and telephone calls is
inviolable. Exceptions can be established only by Reich statute.
Article 118
Every German has the right, within the limits of the general laws, to freely express his opinion through word, writing, print, image, or in other manner. No
work or professional relationship may hinder him in this right, and no one may
disadvantage him if he makes use of this right.
Censorship is not permitted. However, exceptions may be established by
statute for ilm. Also, statutory measures are permitted for preventing the display and sale of defamatory and pornographic literature as well as for the protection of youth.
seCtion 2: Communal Life
Article 119
As the foundation of family life and the preservation and the growth of the nation, marriage stands under the special protection of the Constitution. It rests
on the equal rights of both sexes.
To preserve the purity, health, and social advancement of the family is the
duty of the state and of the community. Families with many children have a
claim to compensating care.
Motherhood has a claim to the protection and care of the state.
Article 120
he rearing of ofspring to achieve physical, spiritual, and social capacity is the
highest duty and natural right of parents, whose activity the state community
supervises.
Article 121
Legitimate and illegitimate children are to have the same statutory conditions
for their physical, spiritual, and social development.
Article 122
Young people are to be protected against exploitation as well as moral, spiritual,
or physical neglect. State and community authorities are required to provide the
necessary institutions.
Compulsory provision of welfare services can only be ordered by statute.
428
Appendix
Article 123
All Germans have the right to assemble peaceably and unarmed without prior
notice or special permission.
A Reich statute may stipulate that open-air assemblies require prior notiication and that they can be prohibited in cases of direct danger to public security.
Article 124
All Germans have the right to form associations or societies for purposes that
do not run counter to the criminal laws. his right cannot be limited through
preventative rules. he same provisions are valid for religious associations and
societies.
he acquisition of legal capacity is open to every association according to the
prescriptions of the civil law. Legal capacity cannot be denied for the reason that
the association pursues a political, social-political, or religious aim.
Article 125
Electoral freedom and secrecy are ensured. Electoral statutes provide the details.
Article 126
Every German has the right to address in writing the competent oicials or the
popular assembly with requests or complaints. his right can be exercised both
by individuals as well as by several working in common.
Article 127
Local communities and associations of the local communities have the right of
self-government within the limitations of statutes.
Article 128
All state citizens without distinction qualify for public oices according to the
standards of law and corresponding to their capacity and accomplishments.
All exceptional provisions against female civil servants are eliminated.
he foundations of civil servant standards are regulated by Reich statute.
Article 129
Employment of the civil servant is for life, so far as a statute does not provide
otherwise. Retirement pay and care for dependents are regulated statutorily. he
vested rights of civil servants are inviolable. Legal redress is available for the
monetary claims of the civil servant.
Civil servants can be removed from oice temporarily, placed in retirement
for a time or permanently, or transferred to another oice with less pay only
under statutorily determined presuppositions and forms.
here must be a complaint procedure and a procedure for possible reinstatement for any criminal judgment involving oicial actions. Regarding evidence
on the personal characteristics of the civil servant, written documentation of
the facts unfavorable to him is to be irst undertaken, when the civil servant was
given the opportunity to express himself in regard to them. he civil servant is
guaranteed the secrecy of his personal documents.
he Weimar Constitution
429
he inviolable character of the vested rights and the holding open of the legal
process for monetary claims are also guaranteed to professional soldiers in particular. Otherwise, their legal position is regulated by Reich statute.
Article 130
Public oicials are servants of the collective, not of a party.
All civil servants are guaranteed the liberty of their political conscience and
the freedom of association.
Civil servants receive special civil servant representation according to more
speciic Reich statutory provisions.
Article 131
If a civil servant, in the exercise of public authority entrusted to him, injures a
third party, then the responsibility rests with the state or the body in whose service the civil servant stands. Redress against the civil servant is reserved. Ordinary legal channels may not be excluded.
he competent legislature is obligated to provide more detailed regulation.
Article 132
According to law, every German has the obligation to undertake voluntary activity.
Article 133
All state citizens are obligated, according to law, to provide personal services for
the state and the localities.
Mandatory military service complies with the provisions of the Reich Defense Law. his statute also provides the extent to which individual fundamental
rights may be limited for the members of the defense forces in the fulillment of
their tasks and for the maintenance of discipline.
Article 134
All state citizens without distinction contribute to all public burdens in proportion to their means in accordance with statutes.
seCtion 3: Religion and Religious Societies
Article 135
All inhabitants of the Reich enjoy full freedom of belief and conscience. Undisturbed religious exercise is guaranteed by the Constitution and stands under
state protection. he general state statutes remain unafected.
Article 136
Civil and political rights and duties are neither dependent on nor limited by the
exercise of religious liberty.
Enjoyment of civil and political rights and the eligibility for public oice is
independent of religious ailiation.
No one may be required to disclose his religious beliefs. Oicials have the
right to inquire into a person’s membership in a religious body only insofar as
430
Appendix
rights or duties depend on it or to the degree that a legally mandated statistical
survey requires it.
No one may be compelled to perform any religious act or ceremony, to take
part in religious exercises, or to take an oath of a religious form.
Article 137
here is no state church.
he freedom of association to form religious societies is guaranteed. here
are no restrictions on the union of religious bodies in the Reich territory.
Every religious body must regulate and administer its afairs independently
within the limits of the generally applicable law. It confers its oices without the
participation of the state or of the civil community.
Religious bodies obtain legal capacity in line with the general provisions of
civil law.
Religious bodies shall remain corporate bodies under public law to the same
degree as they have in the past. Other religious bodies shall be granted the same
rights upon application, if their constitution and the number of their members
ofer assurance of their permanence. If two or more religious bodies established
under public law unite into a single organization, this organization will also be a
corporate body under public law.
Religious bodies that are corporate bodies under public law are entitled to
levy taxes in line with Land law on the basis of the civil tax lists.
Associations whose purpose is the common cultivation of a worldview have
the same status as religious bodies.
Further regulation required for the implementation of these provisions is a
matter for Land legislation.
Article 138
State services for religious societies based on statute, contract, or special legal
title will be discontinued through Land legislation. he guiding principles for
this transfer of authority are established by the Reich.
Article 139
Sunday and public holidays that are recognized by the state are legally protected
as days of rest from work and for spiritual growth.
Article 140
he members of the armed forces must be guaranteed the free time necessary
for the fulillment of their religious duties.
Article 141
Religious bodies are permitted to provide religious services and spiritual care
in the army, in hospitals, in prisons, or in other public institutions to the extent
that there is a need. here is no compulsion in the provision of these services.
he Weimar Constitution
431
seCtion 4: Education and Schools
Article 142
here is freedom of art, scholarship, and its teachings. he state ensures their
protection and participates in their cultivation.
Article 143
Care for the education of youth is provided through public institutions. he
Reich, Lands, and local communities work together in their establishment.
Article 144
he entire school system stands under the supervision of the state; local communities can participate in it. School supervision is exercised by expertly trained
civil servants acting in an oicial capacity.
Teachers in public schools have the rights and duties of civil servants.
Article 145
here is a general obligation to attend school. he primary schools with a minimum of eight years of instruction and the ailiated continuing education schools
until the age of eighteen primarily fulill this obligation. he instruction in the
elementary and continuing education schools is free.
Article 146
he public school system is composed organically. he intermediate and higher
school system is built on top of the basic education school, which is common for
all. he diversity of life professions is determinative of the composition of this
system. he capacity and inclination of the child, not the economic and social
position or the religious faith of the parents, determines whether a child is included in a particular school.
Inside local communities, however, the legally competent elementary schools
with a particular religious orientation or secular worldview may apply to establish the extent to which a compulsory subject even in terms of paragraph 1 is not
being infringed. he will of those legally competent in educational matters is to
be taken into consideration to the greatest possible degree. Land legislation in
accordance with the basic principles of a Reich statute determines the details of
this stipulation.
he Reich, the Lands, and local communities must make available the public
means facilitating access to the middle and higher schools for those with limited
inancial resources, especially child-rearing assistance for the parents of children who are considered capable of being educated in the middle and upper
schools, until the conclusion of their education.
Article 147
Private schools as a substitute for public schools require the approval of the
state and are subject to Land laws. he approval is granted when the private
schools are not inferior to the public schools in terms of learning goals and institutional means as well as in the scholarly training of their teaching staf. Addi-
432
Appendix
tionally, categorization of students by their relative property holdings cannot
be required. Approval is denied when the economic and legal position of the
teaching staf is not suiciently guaranteed.
Private schools are only permitted when the local community does not have
a public elementary school of the religious faith or worldview of those entitled
legally to raise children, whose will must be taken into account according to
Article 146, 2. Such a school is also permitted when the instructional administration recognizes a special pedagogical interest.
Private preparatory schools are eliminated.
Private schools that do not serve as a substitute for public schools remain
under the applicable law.
Article 148
In all schools, the aim is moral education, a disposition toward state citizenship,
personal and professional capability in the spirit of the distinctive nature of the
German people and of fellowship among peoples.
In the course of public school instruction, an efort is made not to injure the
sensibilities of those who think diferently.
Knowledge about state citizenship and labor instruction are subjects in the
schools. Every student receives a copy of the Constitution at the conclusion of
their obligatory schooling.
he Reich, Lands, and local communities all work to advance the popular
education system, including the colleges for working persons.
Article 149
Religious education is a proper subject in schools with the exception of those
that are unailiated with a religious faith (secular schools). he provision of religious instruction is regulated within the framework of school legislation. Religious instruction is to be ofered in agreement with the basic principles of the
religious society that is involved, but without adversely afecting the state’s right
to supervise schools.
he provision of religious instruction and the carrying out of church obligations remain subject to the declaration of intent of teachers. Participation in religious courses of instruction and in religious ceremonies or actions is submitted
to the declaration of intent of those responsible for the religious upbringing of
the child.
he theological faculties in universities are to be preserved.
Article 150
Commemorative objects of art, history, and nature as well as the landscape enjoy the protection and care of the state.
he Reich is charged with preventing the removal of German art holdings
abroad.
he Weimar Constitution
433
seCtion 5: Economic Life
Article 151
he regulation of economic life must correspond to the principles of justice,
with the aim of guaranteeing to all a humane existence. Individual economic
freedom is secured under these limitations.
Legal compulsion is only permissible for the achievement of endangered
rights or in the service of superior claims of the common good.
he freedom of trade and occupation is ensured according to Reich statutes.
Article 152
Contractual freedom as deined by statute is valid during economic transactions.
Usury is forbidden. Legal transactions in conlict with proper morals are null
and void.
Article 153
Property is guaranteed by the Constitution. Its content and its limits are derived
from statute.
An expropriation can be undertaken only for the general good and on a statutory basis. It proceeds against appropriate compensation, so far as a Reich statute
does not provide otherwise. Regarding the extent of compensation, the legal
process in the ordinary courts remains open in disputed cases, so far as Reich
statutes do not determine otherwise. Expropriation by the Reich against Lands,
localities, or common-use associations can only proceed with compensation.
Property creates obligations. Its use should at the same time serve the general
good.
Article 154
he right of inheritance is guaranteed in terms deined by civil law. he share of
the state in the estate of the deceased is deined by statute.
Article 155
he distribution and use of land is supervised by the state to prevent misuse and
with the aim of securing for every German a healthy dwelling place and for all
German families, especially those with many children, a place of work and residence that corresponds to their needs. War veterans are to enjoy special treatment in the right of abode that is to be created.
Landed property whose acquisition is necessary for the satisfaction of housing
requirements, for the promotion of settlement, or for the clearance or improvement of agricultural land, can be expropriated. Entailment is to be eliminated.
he cultivation and use of land is a duty of the landowner toward the community. he increase of land values that arises without the application of labor
or capital is to be placed at the disposal of the collectivity.
he wealth of all land and all economically utilizable natural forces are placed
under state supervision. Private domains are transferable to the state via legislation.
434
Appendix
Article 156
By statute, the Reich can transfer expropriated private economic enterprises
into common property, without needing to pay compensation for socialization
during the application of the valid provisions for expropriation, broadly understood. It can take part itself in the administration of economic enterprises and
associations, as can Lands or local authorities, or it can secure a deining inluence for itself in another way.
Additionally, in instances of pressing need and for the beneit of the community economy, the Reich can legally consolidate economic undertakings and
associations on grounds of self-government, in order to secure the participation
of all working sections of the population, to involve employer and employee in
administration, and to regulate production, manufacture, distribution, use, and
pricing as well as the import and export of economic goods in accordance with
the principles of the community economy.
Cooperative societies and economic associations are to be integrated into the
community economy at their request, while respecting their constitution and
distinctive nature.
Article 157
Labor power enjoys the special protection of the Reich. he Reich establishes a
uniied body of labor law.
Article 158
Intellectual work, the rights of authors, inventors, and artists, all enjoy the
Reich’s protection and care.
he creations of German science, art, and technology are to be given validity
and protection even abroad by international agreement.
Article 159
Freedom of association for the preservation and promotion of conditions of
labor and in the economy is guaranteed for everyone and for all occupations.
All agreements and measures that limit this freedom or seek to hinder it are
unlawful.
Article 160
Whoever stands in a relation of service or work as an employee or worker has
the right to protection by the relevant civil laws and has the right to the free time
required for the fulillment of honorary oices conferred upon them, insofar as
the enterprise is not materially harmed by this activity.
Article 161
In close collaboration with the insured, the Reich establishes a comprehensive scheme of insurance that secures their health and ability to work, protects
motherhood, and provides for the economic consequences of old age, inirmities, and uncertainties of life.
he Weimar Constitution
435
Article 162
he Reich advocates an interstate regulation of the legal circumstances of
workers that is aimed at a general minimum of social rights for the entire working class of mankind.
Article 163
Without detriment to his personal freedom, every German has the moral duty
to activate his spiritual and bodily forces such that it advances the well-being of
the whole society. Every German should be granted the opportunity to earn his
living through productive labor. To the extent that an appropriate opportunity
for work cannot be found for him, his necessary living needs will be provided
for. Details are determined through special Reich statutes.
Article 164
he independent middle class in agriculture, commerce, and trade is promoted
by legislation and administration and is protected against exceptional burdens
and assimilation.
Article 165
Workers and employees are entitled to determine in common with entrepreneurs and as their equals in the regulation of wages and working conditions as
well as in the entire economic development of productive forces. he reciprocal
organizations and their agreements are recognized.
Workers and employees must be legally represented in the enterprises’ labor
councils as well as in district labor councils and in a Reich workers’ council in
order to protect their social and economic interests.
In conjunction with representative employers’ organizations and other related popular participant associations, the district and Reich councils cooperate
in the fulillment of comprehensive economic tasks and in the joint execution of
socialization statutes. he Reich and district councils are composed such that all
signiicant occupational groups are represented commensurate with their economic and social importance.
he Reich government should submit fundamentally signiicant draft statutes on social and economic policy to the Reich Economic Council for its advice before their introduction to the Reichstag. he Reich Economic Council
itself has the right to submit such draft statutes. If the Reich government is not
in agreement with such submissions, it must nevertheless present them to the
Reichstag together with an account of its view of the issue. he Reich Economic
Council has the authority to appoint one of its members to represent its submissions to the Reichstag.
Workers’ and economic councils may assume powers of supervision and administration in the areas of activity accorded them.
It is a matter of exclusive Reich authority to regulate the composition and
tasks of workers’ and economic councils as well as their relation to other selfadministrating bodies.
436
Appendix
Transitional and Concluding Provisions
Article 166
Until the establishment of the Reich Administrative Court, the Reichsgericht
takes its place in terms of forming the Electoral Review Commission.
Article 167
he provisions of paragraphs 3 to 6 of Article 18 irst enter into force two years
after the promulgation of the Constitution.9
Article 168
Until the issuance of the Land statute envisioned in Article 63, but at the most
for one additional year, the collective Prussian votes in the Reichsrat may be cast
by the members of the government.10
Article 169
he Reich government determines the time for the entry into force of Article
83, 1.
he raising and administration of customs and excise taxes may be left to the
Lands at their request for an appropriate transition period.
Article 170
he postal and telegraph administrations in Bavaria and Württemberg are to be
taken over by the Reich by 1 April 1921 at the latest.
he Staatsgerichtshof decides the issue when there is no agreement on the
conditions of the transfer of authority by 1 October 1920.
Until the transfer of authority, the present rights and duties of Bavaria and
Württemberg remain in force. he Reich, however, exclusively regulates the
postal and telegraph traic with the neighboring foreign states.
Article 171
he Reich assumes control of state railroads, waterways, and seacoasts on 1 April
1921 at the latest.
If by 1 October 1920 no agreement has been achieved on the conditions for
the transfer of authority, the Staatsgerichtshof will decide the matter.
Article 172
Until the Reich statute on the Staatsgerichtshof comes into force, a sevenmember senate exercises its authority, of which the Reichstag contributes four.
he Reichsgericht selects three of its members for the court. he Staatsgerichtshof ’s regulates its own procedure.
Article 173
Until the issuance of a Reich statute according to Article 138, religious societies
retain state services that were previously based on statute, contract, or special
legal title.
he Weimar Constitution
437
Article 174
Until the issuance of the Reich statute anticipated by Article 146, 2, the existing
legal circumstance remains in place. he statute must in particular take into account areas of the Reich in which there are schools that legally do not distinguish
on the basis of religious faith.
Article 175
he provision of Article 109 does not apply to orders and honorary awards that
are to be conferred for service during wartime from 1914 to 1919.
Article 176
All public civil servants and members of the defense forces must take an oath of
allegiance to the Constitution. Details are determined by a decree of the President.
Article 177
Where existing statutes provide for the use of a religious form of oath in swearing a vow, the act of taking an oath may also be legally valid when it is executed
without the religious form “I swear.” Otherwise, the content of the vow as it is
provided in statutes remains unafected.
Article 178
he Constitution of the German Reich of 16 April 1871 and the statute on the
provisional Reich authority of 10 February 1919 are superseded.
Other statutes and decrees of the Reich remain in force to the extent that
this Constitution is not in conlict with them. he provisions of the peace treaty
signed at Versailles on 28 June 1919 are not afected by the Constitution.11
Oicial orders that were issued in a legal manner on the basis of previous
statutes retain their validity up until their supersession by way of additional
orders or legislation.
Article 179
To the extent that statutes or decrees refer to provisions or institutions that are
eliminated by this constitution, the corresponding provisions and institutions
of this constitution take their place. In particular, the Reichstag takes the place
of the National Assembly, the Reichsrat substitutes for the Committee of States,
and the President elected on the basis of this constitution replaces the President
elected on the basis of the statute on the provisional Reich authority.
he authority to issue decrees that was granted to the Committee of States by
previous provisions is transferred to the Reich government, which requires the
consent of the Reichsrat according to the standards of this constitution in order
to issue decrees.
Article 180
he National Assembly serves as Reichstag until the convening of the irst
Reichstag. Until the irst President assumes his oice, the President elected on
the basis of the statute on the provisional Reich authority executes the oice of
the President.12
438
Appendix
Article 181
he German people has drafted and passed this constitution through its National Assembly. It enters into force on the day of its promulgation.
Notes
1. [11 August 1919 (Reichgesetzblatt I, p. 1383). Entered into force on 14 August
1919. Trans.]
2. [Law of 15 December 1923 (Reichgesetzblatt I, p. 1185) added: “or the dissolution of the Reichstag until the convening of the new Reichstag.” Trans.]
3. [Law of 22 May 1926 (Reichgesetzblatt I, p. 243), added Article 40a, which
reads:
“he provisions of Articles 36, 37, 38, 1, and 39, 1, are valid for the president of the
Reichstag, his deputies, and the members of the committees established in Article
35, both permanent and primary deputy members, even during the time between
sessions (meeting periods) or election periods.
he same is valid for the president of a Land parliament, his deputies, and permanent and primary deputy members of Land parliament committees, when they
can be active outside of the session (meeting period) or electoral period according
to the Land constitution.
To the extent that Article 37 provides for consent of the Reichstag or of a Land
parliament, the committee for the protection of the rights of the popular assembly
takes the place of the Reichstag and, in case committees of the Land parliament continue to exist, the committee established by the Land parliament for this purpose
takes the place of the Land parliament.
he persons designated in paragraph 1 have the rights indicated in Article 40
between election periods.” Trans.]
4. [Law of 17 December 1932 (Reichgesetzblatt I, p. 547), replaced “Chancellor”
with “President of the Reichsgericht.” Trans.]
5. [Law of 24 March 1921 (Reichgesetzblatt I, p. 440) replaced the number “one
million” in the second sentence with the number “700,000,” and the words “an even
million or even several millions, which matches the inhabitant count of the smallest Land, shall be rounded of to the next million,” by “of at least 350,000 becomes
700,000.” Trans.]
6. [Versailles Treaty and a special protocol of 22 September 1919 invalidated this
provision. Trans.]
7. [Section 15, 2, of the Reich Postal Finance Law of 18 March 1924 (Reichgesetzblatt I, p. 287) stipulates that “the provisions of Articles 85 to 87 of the Constitution
are valid from the same date (1 April 1924) with the directive that the administrative
council takes the place of the Reichsrat and Reichstag, and that a Reich statute is not
required for the assumption of credits and adoption of guarantees.” Trans.]
8. [Section 15 of the Reich Postal Finance Law of 18 March 1924 (Reichgesetzblatt
I, p. 287) invalidated paragraphs 3 and 4 of this article. Trans.]
9. [Law of 27 November 1920 (Reichgesetzblatt I, p. 1987) added paragraphs 2
and 3:
“In the Prussian province of upper Silesia, within months after German authorities reassume administration of the area currently occupied, a vote will take place
he Weimar Constitution
439
according to Article 18, 1 and 5, deciding the question of whether a Land of Upper
Silesia will be formed.
If the question is answered airmatively, then the Land will be formed without
delay. his establishment does not require a Reich statute. he following provisions
apply:
1. here is to be the election of a Land assembly, which, within three months
of the oicial determination of the vote results, must be convened to form a Land
government and to produce a Land constitution. he President issues the call for
the election and determines the election day.
2. he President, in cooperation with the Land assembly, determines when
the Land counts as established.
3. Upper Silesia’s acquisition of state ailiation requires that
(a) those of majority age ailiated with the Reich, who, on the day of the
establishment of the Land of Upper Silesia (section 2), have their abode or
continuous residence in its territory;
(b) other persons of majority age ailiated with the Prussian state who
were born in the territory of the province of Upper Silesia and who, within
a year of the establishment of the Land (paragraph 2), declare to the Land
government that they want to acquire state ailiation in Upper Silesia on
the day of submission of this declaration;
(c) all persons ailiated with the Reich who obtained state ailiation
through birth, naturalization, or marriage, to whom sections a and b
apply.” Trans.]
10. [Law of 6 August 1920 (Reichgesetzblatt I, p. 1565) replaced “after the period
of a year” with “up until 1 July 1921.” Trans.]
11. [A law of 6 August 1920 (Reichsgesetzblatt I, p. 1566) added a third sentence:
“With regard to the negotiations over the acquisition of the island Helgoland, a rule
that deviates from that in Article 17, 2, may be adopted for the beneit of the inhabitants. Trans.]
12. [A law of 27 Octobner 1922 (Reichgesetzblatt I, p. 801) replaced the second
sentence with the following one: “he President selected by the National Assembly
holds oice until 30 June 1925.” Trans.]
440
Appendix
Notes
Introduction
1. he Schmitt literature is so vast it deies citation. Some of the major works in
German are Jürgen Fijalkowski, Die Wendung zum Führerstaat: Ideologische Komponenten in der politischen Philosophie Carl Schmitts (Cologne: Westdeutscher Verlag,
1958); Christian Graf von Krockow, Die Entscheidung: Eine Untersuchung über Ernst
Jünger, Carl Schmitt, Martin Heidegger (Stuttgart: F. Enke, 1958); Hasso Hofmann,
Legitimität gegen Legalität: Der Weg der politischen Philosophie Carl Schmitts (Berlin: Duncker und Humblot, [1964] 1992); Ingeborg Maus, Bürgerliche Rechtstheorie
und Fascismus: Zur sozialen Funktion und aktuellen Wirkung der heorie Carl
Schmitts (Munich: Wilhelm Fink Verlag, [1976] 1980); Christian Meier, Carl Schmitt,
Leo Strauss und “Der Begrif des Politischen”: Zu einem Dialog unter Abwesenden
(Stuttgart: J. B. Metzlersche Verlagsbuchhandlung, 1988); and Reinhard Mehring,
Pathetisches Denken: Carl Schmitts Denkweg am Leitfaden Hegels (Berlin: Duncker
und Humblot, 1989). he irst major work in English was George Schwab, he Challenge of the Exception: An Introduction to the Political Ideas of Carl Schmitt between
1921 and 1936 (Westport, Conn.: Greenwood Press, [1970] 1989). For a more recent
overview, see John P. McCormick, Carl Schmitt’s Critique of Liberalism: Against
Politics as Technology (Cambridge: Cambridge University Press, 1997). Some recent
works in English focusing on Schmitt’s legal theory are William Scheuerman, Between the Norm and the Exception: he Frankfurt School and the Rule of Law (Cambridge, Mass.: MIT Press, 1994); Peter Caldwell, Popular Sovereignty and the Crisis
of German Constitutional Law: he heory and Practice of Weimar Constitutionalism (Durham: Duke University Press, 1997); David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar (Oxford: Oxford
University Press, 1997); Jefrey Seitzer, Comparative History and Legal heory: Carl
Schmitt in the First German Democracy (Westport, Conn.: Greenwood Press, 2001);
and Ellen Kennedy, Constitutional Failure: Carl Schmitt in Weimar (Durham: Duke
University Press, 2004).
2. Jan-Werner Muller, A Dangerous Mind: Carl Schmitt in Postwar European
hought (New Haven: Yale University Press, 2003).
3. Bernard Schlink, “Why Carl Schmitt?” Rechtshistorisches Journal 10 (1991):
160–76, addresses the continuing interest in Schmitt in Germany, while Jürgen
Habermas, “Die Schrecken der Autonomie: Carl Schmitt auf englisch,” in Eine Art
Schadenabwicklung (Frankfurt a. M.: Suhrkamp, 1987), considers Schmitt’s appeal
to an English-speaking audience.
4. Joseph W. Bendersky, Carl Schmitt: heorist for the Reich (Princeton: Princeton University Press, 1983), 107–91. See also Paul Noack, Carl Schmitt: Eine Biographie (Berlin: Propyläen, 1993).
5. On Schmitt in the Nazi period, cf. Bendersky, heorist for the Reich, 195–
273; and Bernd Rüthers, Carl Schmitt im Dritten Reich: Wissenschaft als ZeitgeistVerstärkung? (Munich: Verlag C. H. Beck, 1990).
6. Dirk van Laak, Gespräche in der Sicherheit des Schweigens: Carl Schmitt in der
politischen Geistesgeschichte der frühen Bundesrepublik (Berlin: Akademie Verlag,
1993).
7. On Schmitt’s inluence as a legal theorist in the Federal Republic, see Hans
Lietzmann, “Vater der Verfassungsväter—Carl Schmitt und die Verfassungsgründung in der Bundesrepublik Deutschland,” in Carl Schmitt und die Liberalismuskritik,
ed. Klaus Hansen and Hans Lietzmann (Opladen: Leske und Budrich, 1988); and
Reinhard Mehring, “Carl Schmitt und die Verfassungslehre unserer Tage,” Archiv
des öfentlichen Rechts 120 (1995): 177–204. See also the individual country reports
in Helmut Quaritsch, ed., Complexio Oppositorium: Über Carl Schmitt (Berlin:
Duncker und Humblot, 1988).
8. For contrasting views on the question of continuity in Schmitt’s work, cf. Ingeborg Maus, “Zur Zäsur von 1933 in der heorie Carl Schmitts,” Kritische Justiz 2
(1969): 113–24; and Lutz Berthold, Carl Schmitt und der Staatsnotstandsplan am
Ende der Weimar Republik (Berlin: Dunker und Humblot, 1999). More recently,
Joseph Bendersky argues that Schmitt’s “concept of concrete orders, with its emphasis on traditional institutions, community, and cultural foundations, reconirms
that Schmitt remained primarily a traditional conservative thinker” even in the Nazi
period. See “Introduction: he hree Types of Juristic hought in German Historical and Intellectual Context,” in Carl Schmitt, On the hree Types of Juristic hought,
trans. Joseph W. Bendersky (Westport, Conn.: Praeger, 2004), 2.
9. For a recent, full-length treatment of Schmitt’s apparent rapprochement with
liberalism, see Renato Cristi, Carl Schmitt and Authoritarian Liberalism: Strong
State, Free Economy (Cardif: University of Wales Press, 1998).
10. In the main text, the term Rechtsstaat is left in the original German. To remain consistent, we have not translated it in our introduction as well.
11. See Claudius Müller, Die Rechtsphilosophie des Marbuger Neukantianismus:
Naturrecht und Rechtspositivismus in der Auseinandersetzung zwischen Hermann
Cohen, Rudolf Stammler und Paul Natorp (Tübingen: J. C. B. Mohr, 1994), 8–15.
12. See Hermann Cohen, System der Philosophie, Zweiter heil: Ethik des reinen
Willens (Berlin: Bruno Cassirer, 1904), 309.
13. Ibid., 74.
14. See Emil Lask, “Rechtsphilosophie,” in Die Philosophie im Beginn des zwanzigsten Jahrhunderts: Festschrift für Kuno Fischer, ed. Wilhelm Windelband (Heidelberg: Carl Winter, 1907), 269–320; 271; also Heinrich Rickert, Die Grenzen der
naturwissenschaftlichen Begrifsbildung: Eine logische Einleitung in die historischen
Wissenschaften (Tübingen: J. C. B. Mohr, 1902), 702.
15. Cohen, Ethik des reinen Willens, 304. See also Rudolf Stammler, Sozialismus
und Christentum: Erörterungen zu den Grundbegrifen und den Grundsätzen der
Sozialwissenschaft (Leipzig: Felix Meiner, 1920), 69.
16. Hans Kelsen, Das Problem der Souveränität und die heorie des Völkerrechts:
Beitrag zu euiner reinen Rechtslehre (Tübingen: J. C. B. Mohr, 1920), 72.
17. Hans Kelsen, Der soziologische und der juristische Staatsbegrif: Kritische
Untersuchung des Verhältnisses von Staat und Recht (Tübingen: J. C. B. Mohr,
1922), 2.
18. Hans Kelsen, Reine Rechtslehre (Leipzig/Vienna: Deuticke, 1934), 9.
19. Hans Kelsen, Allgemeine Staatslehre (Berlin: Julius Springer, 1925), 278.
442
Notes to Introduction
20. Ibid., 76.
21. Kelsen, Das Problem der Souveränität, 227.
22. Hence the express antilegalism in Heidegger’s interpretation of Kant. See
Martin Heidegger, Kant und das Problem der Metaphysik, in: Gesamtausgabe, vol. 3,
ed. Fr. W. von Hermann (Frankfurt a. M.: Klostermann, 1990), 158.
23. Max Scheler, Der Formalismus in der Ethik und die materiale Wertethik:
Neuer Versuch der Grundlegung eines ethischen Personalismus, 2nd ed. (Halle:
Niemeyer, 1921) 104–7, 544.
24. Karl Jaspers, Psychologie der Weltanschauungen (Munich: Piper, 1919), 221,
226.
25. Paul Natorp, Der Deutsche und sein Staat (Erlangen: Verlag der Philosophischen Akademie, 1924), 88.
26. See Eugen Ehrlich, “Freie Rechtsindung und freie Rechtswissenschaft,” in
Recht und Leben: Gesammelte Schriften zur Rechtstatsachenforschung und zur Freirechtslehre ed. M. Rehbinder (Berlin: Duncker und Humblot, 1967), 170–202 esp.
192, 184; Gnaeus Flavius [Hermann Kantorowicz], Der Kampf um die Rechtswissenschaft (Heidelberg: Carl Winter, 1906), 35; and Hermann Kantorowicz, Zur Lehre
vom richtigen Recht (Berlin: Walter Rothschild, 1909), 37; also Gustav Radbruch,
“Rechtswissenschaft als Rechtsschöpfung: Ein Beitrag zum juristischen Methodenstreit,” in Archiv für Sozialwissenschaft und Sozialpolitik 22 (1906), 355–370, esp.
365.
27. Erich Kaufmann, Kritik der neukantischen Rechtsphilosophie: Eine Betrachtung über die Beziehungen zwischen Philosophie und Rechtswissenschaft (Tübingen:
J. C. B. Mohr, 1921), vi.
28. Julius Binder, Rechtsbegrif und Rechtsidee: Bemerkungen zur Rechtsphilosophie Rudolf Stammlers (Leipzig: Deichert, 1915), 72.
29. See especially Hugo Sinzheimer, Ein Arbeitstarifgesetz: Die Idee der sozialen
Selbstbestimmmung im Recht (Munich: Duncker und Humblot, 1916).
30. For the classic account of integration theory, see Rudolf Smend, “Verfassung und Verfassungsrecht,” Staatsrechtliche Abhandlungen und andere Aufsätze,
2nd ed. (Berlin: Duncker und Humblot, 1955), 119–276, esp. 260. Hermann Heller,
Schmitt’s other great theoretical rival of the 1920s, was surely not resolutely opposed to all aspects of neo-Kantian thinking; he clearly shared the Kantian assumption that the formation and exercise of power is always restricted by law. However,
he also accommodated an organic theory of legal integration, which imputes central
importance to social organizations as the basic units of political will formation and
political integration in the modern political order, and which thus moves him away
from purely Kantian constitutional analysis. See Hermann Heller, Staatslehre, in
Gesammelte Schriften, 3 vols., ed. G. Niemeyer (Tübingen: Mohr, 1992), 3:81–397,
esp. 348.
31. A particularly important element in Schmitt’s intellectual background can be
found in nineteenth-century historiographical relection. Indeed, while positivism
constituted the major orthodoxy in legal-political thought in later Imperial Germany, the underlying ideas of national-political thought at this time were to a large
extent deined by historicism. Historicism was an intellectual outlook that rejected
the rational-metaphysical, universalist and ius-natural traditions of social analysis
derived from the Kantian Enlightenment, and it argued that each nation has its own
Notes to Introduction
443
distinctive history, its own distinctive laws, and its own very distinctive ideas about
legitimacy and necessary order. In consequence, historicism argued for highly relativizing deinitions of political legitimacy and cultural integrity, and it positioned
itself against all formalist models of legal order.
In the earlier part of the nineteenth century, this outlook tended to be lanked
by national-liberal political perspectives, which saw the historicist emphasis on historical particularity as serving an emancipative interest in national freedom. For
instance, one of the greatest of all historicists, Johann Gustav Droysen, was a liberal
delegate in the Frankfurt Parliament of 1848–49. By the later nineteenth century,
however, historicism was gradually falling under the inluence of more dogmatically
nationalist historians, such as Heinrich von Treitschke, who, though broadly still
inside the national-liberal camp, saw the abandonment of universal ethical concerns
in the deinition of historical culture as the foundation for a creed of strong-state
nationalism. Notable exceptions to this tendency, such as the great liberal historian Friedrich Meinecke remained inluential into the twentieth century. Generally,
however, by the early twentieth century historicism provided the general foundation for most conservative political ideologies in Germany.
he Weimar era saw a fundamental radicalization of the political ideas characteristic of historicism, and these paved the way for the emergence of still more reactionary historicist views in the 1930s. he main lines of radical-conservative and
völkisch ideology that prevailed at the end of the Weimar Republic can be seen to
arise from a polemical intensiication of earlier historicist arguments about the particularity of culture, the relativity of right and law, and the contingency of valid law
on a uniform political will and an exclusive political culture.
he essential theoretical residue of historicism is that human life is most authentically human where it is historically free from all external determinacy, and
independent both of causal regulation and of perennial or rationalized values and
ethics. his condition of historical freedom, for the historicists, is also the fundamental precondition of true politics, and of true legitimacy in politics: politics is the
highest expression of human historical being, and so also the highest expression of
humanity itself. It is not always easy to align Schmitt to the more humanist arguments evolving from historicism. Nonetheless, he clearly concurs with the fundamental humanist claim of the historicists, articulated initially by Dilthey: that politics, in a historically speciic location, is the most genuine determinant of human
life, and that the legitimate political apparatus is one that is founded in and that
re-presents this political-historical quality of the people. In fact, we can see how at
the very heart of Schmitt’s work the historicist claim that humanity is constituted
by its shared historical experiences is transformed into an existential or anthropological argument that sees authentic human existence as constituted by its shared
possession of a uniform political will. his perspective views such politicality as the
deining resource of human life, and as the resource that the legitimate state must
both represent and protect from all formal, material, positivist, or nonpolitical violation.
32. Anton F. J. hibaut, System des Pandekten-Rechts, 2. vols (Jena: Johann
Michael Manke, 1803), 1: 35.
33. G. F. Puchta, Cursus der Institutionen, 3 vols. (Leipzig: Breitkopf und Härtel, 1841), 1:100; Rudolph Jhering, Geist des römischen Rechts auf den verschiedenen
444
Notes to Introduction
Stufen seiner Entwicklung, 3 vols. (Leipzig: Breitkopf und Härtel, 1852), 1:12; Carl
Friedrich von Gerber, System des deutschen Privatrechts, 6th ed.(Jena: Friedrich
Mauke, 1858), 19. It should be noted, however, that Gerber also expressed a measured sympathy for historical-organic and associational theories of law and state
(10–11), and he was in certain respects a mediator between positivist and organic
theories of law.
34. Bernhard Windscheid, “Die Aufgaben der Rechtswissenschaft,” in Gesammelte Reden und Aufsätze (Leipzig: Duncker und Humblot, 1904), 100–16; 112.
35. Paul Laband, Das Staatsrecht des deutschen Reiches, 4 vols., 4th ed. (Tübingen/Leipzig: J. C. B. Mohr, 1901), 1:89–90.
36. For an early version of this view, see Georg Beseler, Volksrecht und Juristenrecht (Leipzig: Weidmannsche Buchhandlung, 1843), 69–70, 84; for a later version,
see Johann Caspar Bluntschli, “Der Rechtsbegrif,” in Vorträge gehalten zu München
im Winter 1858 (Braunschweig: Friedrich Vieweg und Sohn, 1858), 143–83, for the
classic articulation of this perspective, see Otto Gierke, Das deutsche Genossenschaftsrecht, vol. II: Geschichte des deutschen Körperschaftsbegrifs (Berlin: Weidmann, 1873), 37.
37. Georg Jellinek, Allgemeine Staatslehre (Berlin: Häring, 1900), 308.
38. Charles Maier, Recasting Bourgeois Europe: Stabilization in France, Germany,
and Italy in the Decade after World War I, with a new preface (Princeton: Princeton
University Press, [1975] 1988), 136–53.
39. Ibid., 249–72, 356–87, esp. 364–87.
40. Werner Conze, “Die Krise des Parteienstaates in Deutschland, 1929/30,” in
Von Weimar zu Hitler, 1930–1933, ed. Gotthard Jasper (Cologne: Kiepenheuer und
Witsch, 1968); Larry Eugene Jones, German Liberalism and the Dissolution of the
Weimar Party System, 1918–1933 (Ann Arbor: University of Michigan Press, [1988]
1998); Michael Stürmer, Koalition und Opposition in der Weimarer Republik, 1924–
1928 (Düsseldorf: Droste, 1967), 265–73.
41. M. Rainer Lepsius, “Parteisystem und Sozialstruktur: Zum Problem der
Demokratisierung der deutschen Gesellschaft,” in Demokratie in Deutschland:
Soziologisch-historische Konstellationsanalysen (Göttingen: Vandenhoeck und
Ruprecht, 1993), 81–38; also Detlev J. K. Peukert, he Weimar Republic: he Crisis of
Classical Modernity, trans. Richard Deveson (London: Penguin, [1987] 1991), 38.
42. For an exhaustive study of parliamentary elections in the Weimar Republic,
see Richard F. Hamilton, Who Voted for Hitler? (Princeton: Princeton University
Press, 1982). Appendix A contains a summary analysis of Reichstag elections. See
also Peukert, Weimar, 38.
43. here is a long-standing controversy about how much political room for maneuver the parties supporting the Republic had. Knut Borchardt, Wachstum, Krisen
und Handlungsspielraum der Wirtschaftspolitik: Studien zur Wirtschaftsgeschichte
des 19. und 20 Jahrhunderts (Göttingen: Vandenhoeck und Ruprecht, 1982), 162–82
and 183–205, sparked a debate over the limited range of options available to the
German government in responding to the economic crisis in the inal years of the
Republic, which, in turn, rendered efective parliamentary government increasingly
diicult, if not impossible. For reactions to the so-called Borchardt thesis, see CarlLudwig Holtfrerich, “Zu hohen Löhnen in der Weimarer Republik? Bemerkungen
zur Borchardt-hese,” Geschichte und Gesellschaft 10 (1984): 122–41; Jürgen von
Notes to Introduction
445
Kruedener, “Die Überforderung der Weimarer Republik als Sozialstaat,” Geschichte
und Gesellschaft 11, 3 (1985): 358–76, and Kruedener, ed., Economic Crisis and Political Collapse: he Weimar Republik, 1924–1933 (New York: Berg, 1990); Charles
Maier, “Die Nicht-Determiniertheit ökonomischer Modelle: Überlegungen zu Knut
Borchardts hese von der ‘kranken Wirtschaft’ der Weimarer Republik,” Geschichte
und Gesellschaft 11 (1985): 275–94; and Jans-Joachim Voth, “Wages, Investment, and
the Fate of the Weimar Republik: A Long-Term Perspective,” German History 11, 3
(1993): 265–92. In a recent reassessment of Brüning’s role in the Weimar Republic,
William J. Patch Jr., Heinrich Brüning and the Dissolution of the Weimar Republic
(Cambridge: Cambridge University Press, 1998), 94–95, argues that the collapse of
the coalition government in 1930, leading to the irst big electoral breakthrough for
the Nazis, was “probably inevitable” because bourgeois parties risked further loss
of votes through cooperation with the SPD. Sheri Berman, he Social Democratic
Moment: Ideas and Politics in the Making of Interwar Europe (Cambridge, Mass.:
Harvard University Press, 1998), by contrast, argues that the SPD might have broadened its base if it had been willing to give up certain irmly held beliefs.
44. David Abraham, he Collapse of the Weimar Republic: Political Economy and
Crisis, 2nd ed. (New York: Holmes and Meier, [1981] 1986), 1–41, 229–318.
45. Dietmar Petzina and Werner Abelshauser, “Zum Problem der relativen Stagnation der deutschen Wirtschaft in den zwanziger Jahren,” in Industrielles System
und politische Entwicklung in der Weimarer Republik, ed. Hans Mommsen et al.
(Düsseldorf: Droste Verlag, 1974); and Peukert, Weimar, 118–24.
46. Because they were passed with a two-thirds majority of the Reichstag, enabling acts (Ermächtigunggesetze) met the requirements for passage of a constitutional amendment. hey granted certain organs, typically the Reich government or
the President, the power to issue decrees with the force of law (Rechtsverordnungen),
which, in some cases, could deviate from express constitutional provisions (Verfassungsdurchbrechungen). his decree power was subject to time limitations as well
as restrictions on the content and object of the decrees issued. See Ludwig Richter,
“Das präsidiale Notverordnungsrecht in den ersten Jahren der Weimarer Republik:
Friedrich Ebert und die Anwendung des Artikels 48 der Weimarer Reichsverfassung,” in Friedrich Ebert als Reichspräsident: Amtsführung und Amtsverständnis, ed.
Eberhard Kolb (Munich: Oldenburg, 1997), 248–53; and Hans Rein, Weimar, rechtsgeschichtlich dokumentiert (Stuttgart: Richard Boorberg, 1991), 127–29.
47. Bismarck’s Reich Constitution forged a national government from numerous
independent states by permitting the Lands to retain a good deal of their former
sovereignty. After the collapse of the Reich system, there was substantial support
for a fundamental reform of the federal system. In the end, however, the Weimar
Constitution preserved the traditional system with some modiications. Reich authority increased signiicantly, particularly in regard to taxation, but the Lands were
still relatively autonomous governing units, with their own parliaments and court
systems. Moreover, as under the traditional system, the Lands retained control
over much of the administrative apparatus needed to enforce Reich laws. Finally,
though the Land governments had a high degree of autonomy from the Reich, they
could exert considerable inluence at the Reich level. For example, they could hinder the full implementation of Reich laws through opposition in the Reichsrat or
through half-hearted administration at the regional or local levels. Also, because
446
Notes to Introduction
parties with a narrowly local or regional orientation could gain representation in
the closely divided Reichstag, more parochial interests could force concessions from
hard-pressed parliamentary majorities that were detrimental to the national interest. Hence, the problem of political pluralism so destructive at the Reich level, in
Schmitt’s view, was duplicated at the regional and local levels, complicating greatly
the already diicult task of governing. See Hüter der Verfassung (Berlin: Duncker
und Humblot, [1931] 1985), 72, 92–93.
On the failed eforts to reform the federal system, see Ernst Rudolf Huber,
Deutsche Verfassungsgeschichte seit 1789 (Stuttgart: W. Kohlhammer, 1984), 7:668–
79; and Gerhard Schulz, Zwischen Demokratie und Diktatur: Verfassungspolitik und
Reichsreform in der Weimarer Republik (Berlin: Walter de Gruyter, 1963), 3:486–
515, 564–612. On the complex changes in the tax system, see Huber, Verfassungsgeschichte, 6:486–504; and Mabel Newcomer, Central and Local Finance in Germany and England (New York: Columbia University Press, 1937), 42–97. he impact
of local and regional parties and interests on the Reich level is discussed in Huber,
Verfassungsgeschichte, 6:498–99; and Patch, Brüning, 94–95. Jefrey Seitzer, Comparative History and Legal heory: Carl Schmitt in the First German Democracy
(Westport, Conn.: Greenwood Press, 2001), 41–71, examines Schmitt’s critique of
German federalism.
48. Schmitt’s irst major work on constitutional dictatorship, Die Diktatur:
Von den Anfängen des modernen Souveränitätsgedankens bis zum proletarischen
Klassenkampf (Berlin: Duncker und Humblot, [1922] 1989), was not written in explicit reference to Art. 48. Schmitt distinguishes between two forms of dictatorship,
sovereign and commissarial. he Roman dictator was of the commissarial type in
that he was not empowered to make permanent changes in the Roman constitution. Rather, the dictator’s sole purpose was to restore the Roman constitution, even
though some actions in pursuit of this goal violated particular aspects of the constitutional order, such as the rights of particular citizens. A sovereign dictator, by
contrast, brings about a fundamental change in the existing order or establishes a
new order under his own authority.
A 1924 essay, “Die Diktatur des Reichpräsidenten,” later included as an appendix to Die Diktatur, is arguably Schmitt’s most important explication of the legal
basis of presidential government under Art. 48. he irst principal question, Schmitt
argues, is the relation to one another of the irst two sections of Art. 48. Schmitt
argues that until the passage of supplementary legislation under Section 5 (which
never occurred), Section 1 is an independent grant of authority to the President
to issue measures with the force of law, which is subject to only two limitations.
First, the President cannot issue measures that involve permanent, general, and
fundamental changes in the established constitutional order. In other words, his
authority is commissarial, not sovereign. he National Assembly that promulgated
the Weimar Constitution exercised a sovereign dictatorship, but this lasted only
until the constitution took efect. Second, the Reichstag retains the right to demand
the suspension or abrogation of any presidential action taken under Section 1. Section 2’s enumeration of the Basic Rights that the President can suspend during an
emergency, by contrast, is not a limitation on the general authority of Section 1,
according to Schmitt. his listing of the Basic Rights does not indicate that these are
the only provisions of the Weimar Constitution that the President can suspend dur-
Notes to Introduction
447
ing a state of emergency. he drafting history of the article indicates that if anything,
Section 2 was intended to reinforce the authority granted under the irst section.
Moreover, Schmitt continues, the widely accepted practice of the exercise of presidential emergency powers under Art. 48 indicates that the President’s authority extends to all provisions of the Weimar Constitution, so long as it does not violate the
previously mentioned limitations.
On presidential emergency decrees in Weimar generally, see Frederick Watkins, he Failure of Constitutional Emergency Powers under the German Republic
(Cambridge, Mass.: Harvard University Press, 1939); Clinton L. Rossiter, Constitutional Dictatorship: Crisis Government in Modern Democracies (Princeton: Princeton University Press, 1948), 31–73; Ulrich Scheuner, “Die Anwendung des Art. 48
der Weimarer Reichsverfassung unter den Reichspräsidentschaften von Ebert und
Hindenburg,” in Staat, Wirkschaft und Politik in der Weimarer Republik: Festschrift
für Heinrich Brüning, ed. Ferdinand A. Hermens and heodor Schieder (Berlin:
Duncker und Humblot, 1967), 249–86; Heinrich Oberreuter, Notstand und Demokratie (Munich: Vögel, 1978), esp. 43–71; Ernst Rudolf Huber, Deutsche Verfassungsgeschichte seit 1789 (Stuttgart: W. Kohlhammer, 1981), 6:434–50; Hans Boldt, “Der
Artikel 48 der Weimarer Reichsverfassung: Sein historischer Hintergrund und
seine politische Funktion,” in Die Weimarer Republik: Belagerte Civitas, ed. Michael
Stürmer (Königstein: Verlagsgruppe Athenäum, Hain, Scriptor, Hanstein, 1980),
288–309; Michael Frehse, Ermächtigunggesetzgebung im deutschen Reich, 1914–1933
(Pfafenweiler: Centaurus-Verlagsgesellschaft, 1985); John E. Finn, Constitutions in
Crisis: Political Violence and the Rule of Law (New York: Oxford University Press,
1991), 139–78; and Peter Blomeyer, Der Notstand in den letzten Jahren von Weimar
(Berlin: Duncker und Humblot, 1999).
For a critical evaluation of the use of emergency powers by the Republic’s two
Presidents, Friedrich Ebert and Paul von Hindenburg, see Gotthard Jasper, “Die
verfassungs- und machtpolitische Problematik des Reichspräsidents in der Weimarer Republik: Die Praxis der Reichspräsidenten Ebert und Hindenburg im Vergleich,” in Friedrich Ebert und seine Zeit: Bilanz und Perspektiven der Forschung, ed.
Rudolf König et al. (Munich: R. Oldenburg, 1997).
On Schmitt’s understanding of emergency powers and his role in late Weimar,
compare Schwab, Challenge of the Exception, 80–89; Bendersky, Carl Schmitt,
107–91; and Lutz Berthold, Carl Schmitt und der Staatsnotstandsplan am Ende der
Weimar Republik (Berlin: Duncker und Humblot, 1999), 32–77, on the one hand;
with John McCormick, Carl Schmitt’s Critique of Liberalism: Against Politics as
Technology (Cambridge: Cambridge University Press, 1997), 121–56; and Dyzenhaus, Legality and Legitimacy, 70–85, on the other.
49. For Schmitt, the mere fact that a coalition of parties can muster a majority on
a particular issue does not justify permitting it to bring down the current government. If a majority is composed of parties with diametrically opposed positions, and
if this temporary majority supports a vote of no conidence under Art. 54 merely as
a means of obstruction, rather than as a way of furthering a positive government
program, then there is no duty of the government to step down, particularly when
the President has already ordered the dissolution of the Reichstag. Constitutional
heory, 345.
Unless otherwise indicated, all page references in this introduction are to
448
Notes to Introduction
Schmitt’s 1928 edition, the page numbers of which are included in brackets in the
translated text.
Schmitt’s concern about negative majorities was widely shared during the
Weimar era. See, for example, Heinrich Herrfahrdt, Die Kabinettsbildung nach der
Weimarer Verfassung unter dem Einluss der politischen Praxis (Berlin: O. Liebmann, 1927), the most likely inspiration for Art. 67 of the Basic Law (the current
German constitution), which provides for a “constructive vote of no conidence.”
Under the postwar provision, a vote of no conidence is only permissible when a
majority opposed to the current government can itself agree on a successor government.
50. his is the central argument of Hüter der Verfassung.
51. Four members of Schmitt’s family served as priests and were engaged on the
Catholic side in the religious and political controversies of the early 1870s known
as the Kulturkampf, in which Bismarck’s government introduced a series of aggressively discriminatory anticlerical laws. Schmitt was quite proud of the Catholic resistance to the German state, and he would remain loyal to the Catholic cause well
into the Weimar Republic. hough Schmitt never joined a political party during
the Weimar Republic, he was closely associated with the authoritarian wing of the
Catholic Center Party, which stressed the enforcement of natural law over individual liberties as a guiding principle and was thus opposed to the form of interest
group politics associated with modern democracy that is either pluralist or concerned with social welfare. Schmitt’s early scholarly work relected this Catholic
outlook. he state had a special mission upholding moral principles, he argued, and
this mission had priority over the enforcement of individual liberties. Moreover,
the Catholic Church could mediate cases of conlict over the nature of these moral
principles or how they should be realized. Bendersky, heorist for the Reich, 3–7.
See generally G. L. Ulmen, “Introduction” to Carl Schmitt, Roman Catholicism and
Political Form (Westport, Conn.: Greenwood Press, 1996).
52. hese rights are Art. 114 (personal liberty), Art. 115 (inviolability of the home),
Art. 117 (conidentiality of communications), Art. 118 (freedom of expression), Art.
123 (freedom of assembly), Art. 124 (freedom of association), and Art. 153 (right to
property).
53. On the exercise of emergency powers during Weimar, see Rossiter, Constitutional Dictatorship, 31–73; Finn, Constitutions in Crisis, 139–78, esp. 175–77; and
Watkins, Failure of Constitutional Emergency Powers .
54. his is a principal theme of Schmitt, Legality and Legitimacy, trans. and ed.
Jefrey Seitzer (Durham: Duke University Press, 2004). See also Finn, Constitutions
in Crisis, 145.
55. Gerhard Anschütz, Die Verfassung des deutschen Reiches vom 11. August 1919:
Ein Kommentar für Wissenschaft und Praxis (Berlin: Verlag von Georg Stilte, 1930),
1–28.
56. Ibid., 3–15.
57. Richard homa, “On the Ideology of Parliamentarism (1925),” in Carl Schmitt,
he Crisis of Parliamentary Democracy, trans. Ellen Kennedy (Cambridge, Mass.:
MIT Press, 1985), 79–80.
58. See also Hüter der Verfassung, 89.
59. Reinhard Mehring, “Carl Schmitts Lehre von der Aulösung des Liberalismus:
Notes to Introduction
449
Das Sinnegefüge der ‘Constitutional heory’ als historisches Urteil,” Zeitschrift der
Politik 38 (1991); 200–216; and Scheuerman, “Is Parliamentarism in Crisis?” 142.
60. Max Weber, “Parliament and Government in a Reconstructed Germany: A
Contribution to the Political Critique of Oicialdom and Party Politics,” in Economy
and Society: An Outline of Interpretive Sociology, ed. Guenter Roth and Claus Wittich (Berkeley: University of California Press, [1918] 1978), esp. preface and 1449–
59).
61. Ibid., 1451–59. Guenther Roth and Wolfgang Schluchter, Max Weber’s Vision
of History: Ethics and Methods (Berkeley: University of California Press, 1979), 195–
206, ofer a good discussion of Weber’s approach to history in his political writings.
For an attempt to apply Weber’s theory of ideal types to the issue of institutional
borrowing between systems, see J. W. B. Allison, A Continental Distinction in the
Common Law: A Historical and Comparative Perspective on English Public Law
(Oxford: Clarendon Press, 1996).
62. Max Weber, he Methodology of the Social Sciences, trans. and ed. Edward S.
Shils and Henry A. Finch (Glencoe, Ill.: Free Press, 1949), 104.
63. Ibid. Weber is referring to Constant’s famous essay “he Liberty of the Ancients Compared with hat of the Moderns,” in Benjamin Constant: Political Writings, trans. and ed. Biancamaria Fontana (Cambridge: Cambridge University Press,
1988), 307–28.
64. Weber, Methodology, 98.
65. On Schmitt’s relation to Weber, see Reinhard Mehring, “Politische Ethik
in Max Webers ‘Politik als Beruf ’ and Carl Schmitts ‘Der Begrif des Politischen,’ ”
Politische Vierteljahresschrift, 31, 4 (1990): 608–26, and “Schmitts Lehre”; Wolfgang
Mommsen, Max Weber and German Politics, 1890–1920, trans. Michael S. Steinberg
(Chicago: University of Chicago Press, [1959] 1984), 381–89; Seitzer, Comparative
History and Legal heory, 22–35; Rune Slagstad, “Liberal Constitutionalism and Its
Critics: Carl Schmitt and Max Weber, in Constitutionalism and Democracy, ed. Jon
Elster and Rune Slagstad (Cambridge: Cambridge University Press, 1988); and G. L.
Ulmen, “he Sociology of the State: Carl Schmitt and Max Weber,” State, Culture,
Society 1 (1985): 3–57, and Politische Mehrwert: Eine Studie über Max Weber and
Carl Schmitt (Weinheim: VCH Acta humaniora, 1991).
66. See, for example, Reinhard Bendix, Nation-Building and Citizenship: Studies
of Our Changing Social Order (Berkeley: University of California Press, [1964]
1977).
67. Schmitt, Hüter der Verfassung, 71–108.
68. Ibid., 71–72. On this section of Guardian, see Seitzer, Comparative History
and Legal heory, 41–71.
69. Alexis de Tocqueville, he Old Regime and the French Revolution, trans.
Stuart Gilbert (Garden City, N.Y.: Doubleday, 1955), 32–41, 57–60, esp. 72–77; and
Tocqueville, Democracy in America, trans. George Lawrence and ed. J. P. Mayer
(New York: Harper and Row, 1969), 61–98, esp. 87–98.
70. Mary K. Geiter and W. A. Speck, “Anticipating America: American Mentality
before the Revolution,” in Britain and America: Studies in Comparative History,
1760–1970, ed. David Englander (New Haven: Yale University Press, 1997), 26–50.
71. Gail Bossenga, “City and State: An Urban Perspective on the Origins of the
French Revolution,” in he French Revolution and the Creation of Modern Political
450
Notes to Introduction
Culture, ed. Keith Baker (Oxford: Pergamon Press, 1987), 1:115–40, esp. 131–34; also
P. M. Jones, Reform and Revolution in France: the Politics of Transition, 1774–1791
(Cambridge: Cambridge University Press, 1995), 176–214.
72. On the complex and ever changing relationships among theory and practice
in the American Revolution, see Gordon S. Wood, he Creation of the American
Republic, 1776–1787 (New York: W. W. Norton, [1969] 1972).
73. Weber, Methodology, 97.
74. Seitzer, Comparative History and Legal heory, 1–40.
75. Werner Weber, “Der Einbruch politischer Stände in die Demokratie,” in
Weber, Spannungen und Kräfte im westdeutschen Verfassungssystem (Stuttgart:
Vorwerk, 1951), 39–64; Ernst Forsthof, “Verfassungsprobleme des Sozialstaats,” in
Rechtsstaatlichkeit und Sozialstaatlichkeit, ed. Ernst Forsthof (Darmstadt: Wissenschaftliche Buchgesellschaft, 1968), 145–64.
76. Otto Kirchheimer, “Verfassungswirklichkeit und politische Zukunft der Arbeiterbewegung,” in Kirchheimer, Von der Weimarer Republik zum Faschismus: Die
Aulösung der demokratischen Rechtsordnung, ed. Wolfgang Luthardt (Frankfurt
a. M.: Suhrkamp, 1976), 69–76, esp. 73.
77. Otto Kirchheimer, “Weimar—und was dann? Analyse einer Verfassung,”
in Kirchheimer, Politik und Verfassung (Frankfurt a. M.: Suhrkamp, 1964), 9–56,
esp. 54.
78. See Franz Neumnn, “he Concept of Political Freedom,” Columbia Law Review 53, 7 (1953): 901–35.
79. Jürgen Habermas, Strukturwandel der Öfentlichkeit: Untersuchungen zu
einer Kategorie der bürgerlichen Gesellschaft, with an introduction for the new edition (Frankfurt a. M.: Suhrkamp, 1990), 294.
80. Ibid., 273.
81. Jürgen Habermas, Legitimationsprobleme im Spätkapitalismus (Frankfurt
a. M.: Suhrkamp, 1973), 68–69.
82. See Ulrich K. Preuß, Legalität und Pluralismus: Beiträge zum Verfassungsrecht der Bundesrepublik Deutschland (Frankfurt a. M.: Suhrkamp, 1973), 63.
83. Ulrich K. Preuß, “Zum Begrif der Verfassung,” in Zum Begrif der Verfassung:
Die Ordnung des Politischen, ed. Ulrich K. Preuß (Frankfurt a. M.: Fischer, 1994),
7–33.
84. In a slightly earlier work, Schmitt observes that “the people are precisely
those who do not have oicial functions, who do not govern” (Carl Schmitt, Volksentscheid und Volksbegehren: Ein Beitrag zur Auslegung der Weimarer Verfassung
und zur Lehre von der unmittelbaren Demokratie (Berlin: Walter de Gruyter, 1927),
33.
85. Elsewhere he states that “acclamation” is the “most genuine activity, capacity,
and function of the people.” He concludes here by claiming that there is “no state
without a people, no people without acclamation.” Ibid., 34.
86. Ibid., 36.
87. Ibid., 35.
88. Gerhard Leibholz, “Der Strukturwandel der modernen Demokratie,” in
Strukturprobleme der modernen Demokratie (Karlsruhe: C. F. Müller, 1967), 78–131.
89. Neumann, “he Concept of Political Freedom,” esp. 928.
90. Cristi, Carl Schmitt and Authoritarian Liberalism, 33.
Notes to Introduction
451
91. For examples of this technocratic antihumanism, see Hans Freyer, heorie des
gegenwärtigen Zeitalters (Stuttgart: Deutsche Verlags-Anstalt, 1955), 97; also Helmut
Schelsky, “Der Mensch in der wissenschaftlichen Zivilisation,” in Schelsky, Auf der
Suche nach der Wirklichkeit: Gesammelte Aufsätze (Düsseldorf: Eugen Diederich,
1965), 439–80.
92. Arnold Gehlen, “Soziologische Voraussetzungen im gegenwärtigen Staat,” in
Forsthof, Rechtsstaatlichkeit und Sozialstaatlichkeit, 320–39; 337–38.
93. Ernst Forsthof, “Zur heutigen Situation einer Verfassungslehre,” in Epirrhosis: Festgabe für Carl Schmitt, ed. Hans Barion (Berlin: Duncker und Humblot,
1968), 185–211.
94. See Michael King and Chris hornhill, Niklas Luhmann’s heory of Politics
and Law (Basingstoke, U.K.: Palgrave, 2003), 76.
95. Niklas Luhmann, Die Wirtschaft der Gesellschaft (Frankfurt a. M.: Suhrkamp,
1988), 142.
96. See Otto Koellreutter, Grundfragen des völkischen und staatlichen Lebens im
deutschen Volksstaate (Berlin: Pan-Verlagsgesellschaft, 1935).
97. On the critical and covertly anti-Nazi intentions underlying Schmitt’s analyses of politics and the state in the late 1930s, see George Schwab, introduction to
Carl Schmitt, he Leviathan in the State heory of homas Hobbes: Meaning and
Failure of a Political Symbol, trans. George Schwab and Erna Hilfstein, Contributions in Political Science, Nr. 374 (Westport, Conn.: Greenwood Press, 1996), ix–
xxxii, esp. x.
98. As an example of this, consider John Rawls, who expressly deines his liberalism as political liberalism but still only sees the political content of his liberalism
as residing in its insistence that power should be based in the residual overlapping
consensus between reasonable social groups in a pluralized society. John Rawls, Political Liberalism (New York: Columbia University Press, 1996), 192. For a good recent critique of the depoliticizing tendencies in contemporary liberalism, see Glenn
Newey, After Politics: he Rejection of Politics in Contemporary Liberal Philosophy
(London: Palgrave, 2001).
Schmitt’s Preface
1. [In the Weimar context, the term Staatsrecht refers to the organization and
operation of state organs. here is some overlap, therefore, with contemporary
constitutional law (Verfassungsrecht). However, because Staatsrecht in the Weimar
period did not involve constitutional rights, it would be misleading to see it as equivalent to constitutional law, as suggested by Carl Creield et al., eds., Rechtswörterbuch
(Munich: C. H. Beck, 2000), 1231. he largely unfamiliar literal rendering “state law”
might obscure the limited range of the concept’s meaning. I have opted for “public
law,” though with an important caveat. Germans have a speciic term for public law,
öfentliches Recht, which includes constitutional and state law as well as administrative law (Verwaltungsrecht). he reader should keep in mind that unless otherwise
indicated, “public law” is a rendering of “Staatsrecht,” not “öfentliches Recht.” For a
history of Staatsrecht that indicates the range of meanings of the term, see Gerhard
452
Notes to Schmitt’s Preface
Anschütz and Richard homa, eds. Handbuch des deutschen Staatsrecht (Tübingen:
J. C. B. Mohr (Paul Siebeck), 1930–32), 1:1–95. Trans.]
2. [Allgemeine Staatslehre sought to consider fully the “‘timeless’ foundations of
the state,” rather than merely the characteristics and scope of currently valid law.
Michael Stolleis, Geschichte des öftentlichen Rechts in Deutschland (Munich: C. H.
Beck, 1992), 2:423. It arguably reached its apex in Georg Jellinek’s monumental General heory of the State (Berlin: Verlag von Julius Springer, [1900] 1922). Jellinek examines the state from every conceivable angle. Among the many issues considered
are the purpose of state theory (ibid., 3–24), the history of state theory (53–70), and
even “the name of the state” (129–35). hroughout this comprehensive treatment,
Jellinek insists on distinguishing clearly between empirical and normative dimensions of his subject. he work is divided, for example, into sections treating either an
empirical or a normative issue. And in an extensive methodological discussion early
in the work (25–52), Jellinek emphasizes the need to achieve methodological clarity
about the nature of concepts in state theory (34–42). Trans.]
3. [Schmitt discusses many features of the German constitutional system in detail. We have also touched on some aspects of it in the introduction to this work,
and other aspects will be addressed in subsequent explanatory notes. Nonetheless,
a brief overview of the institutional changes introduced by the Weimar Constitution
will aid the reader in evaluating Schmitt’s argument.
he uniication of Germany under Bismarck’s Reich Constitution in 1871 was
achieved by combining elements of the traditional German state and democratic
reforms. he new national parliament, the Reichstag, was elected by universal manhood sufrage. As the lower house of parliament, the Reichstag could introduce
legislation, and proposed legislation, including the annual budget, required its approval. Nonetheless, it did not mark the advent of a uniied, fully democratic German polity, for the true center of authority remained the executive branch, particularly the plural executive in the upper house of parliament, the Bundesrat.
Composed of delegations of the various state governments, the Bundesrat voted
on proposed statutes, including constitutional amendments, and supervised the administration of Reich statutes. In fact, the Bundesrat, not the Kaiser, had the veto
power over legislation passed by the Reichstag. he Kaiser, however, appointed the
Chancellor, who chaired the Bundesrat, and the Chancellor was responsible to the
Kaiser, not the Reichstag. With the consent of the Bundesrat, the Kaiser could declare war; he was commander of the armed forces and opened and closed the sessions of both houses of parliament.
he rise of mass political parties at the end of the nineteenth century, particularly the Social Democrats, and the corresponding political decline of the bourgeoisie did not bring about fundamental changes in the system. Because only fourteen
votes were required to block a constitutional amendment in the Bundesrat, Prussia
was able to prevent any signiicant change in the system. And, until the Weimar
Republic, conservatives controlled the Prussian delegation because of the Prussian
three-tiered electoral system weighted heavily in favor of the wealthy, providing
conservatives disproportionate political inluence in the system overall.
his basic dualistic structure took on a new form with the collapse of the monarchy after World War I. Under the Weimar Constitution, the upper house, now
Notes to Schmitt’s Preface
453
the Reichsrat, had a much less important position. It remained composed of Land
delegations, with an undivided Prussia still the largest by far. However, the Prussian
provinces were not empowered to select some of the Prussian delegation, reducing
the power of the Prussian government, and the Prussian tripartite electoral system
was eliminated, lessening the hold of conservatives on the Land government. More
important, the Reichsrat no longer had a role in adjudicating constitutional disputes
among Lands, this role having been shifted to the new Staatsgerichtshof and the
existing Reichsgericht. Also, the Reichsrat could only object to Reichstag legislation
by exercising a suspensive veto that could be overridden by a two-thirds majority or
by a referendum. he Reichsrat was reduced to advising the Reich government on
proposed legislation and supervising administration that afected Land afairs.
Rather than concentrating all authority in the Reichstag, the Weimar Constitution divided authority between the Reichstag, on the one hand, and the President
and the Reich government, on the other. he Reichstag, elected by universal sufrage
in a system of proportional representation, had the power of initiative for both ordinary legislation and constitutional amendments, could pass a vote of no conidence
in the Reich government, and demand the presence of its ministers to answer questions about the exercise of their lawful authority. he Reichstag could also demand a
recall vote for the President, order the suspension of presidential action taken under
Art. 48, and, by petition of 100 members, compel the President to appear before
the Staatsgerichtshof regarding an alleged violation of law on his part, a power the
Reichstag did not have in regard to the Kaiser.
In formal terms, the Reichstag had the authority to enforce its will against the
President and the Reich government. he President’s powers, however, were considerable and well adapted to use in times of political instability and parliamentary
paralysis. Besides appointing the Chancellor, the President was commander in chief
of the armed forces, which, under Art. 48, he could use to enforce Reich law against
the Lands and keep domestic peace and restore order. he President could also dissolve parliament and call for new elections, though not twice for the same reason.
he authority to dissolve parliament at key points proved an efective means of
countering parliamentary eforts to control the exercise of presidential emergency
powers.
On the German concept of the state, see Rupert Emerson, State and Sovereignty
in Modern Germany (Westport, Conn.: Hyperion Press, [1928] 1979); and Leonard
Krieger, he German Idea of Freedom: History of a Political Tradition (Boston: Beacon Press, 1957). Ernst-Wolfgang Böckenförde, “Die Bedeutung der Unterscheidung von Staat und Gesellschaft im demokratischen Sozialstaat der Gegenwart,” in
Recht, Staat, Freiheit: Studien zu Rechtsphilosophie, Staatstheorie and Verfassungsgeschichte (Frankfurt a. M.: Suhrkamp, 1991), provides a history of the state/society
distinction. On the German political system in the Reich and Weimar periods, see
Peter C. Caldwell, Popular Sovereignty and the Crisis of German Constitutional
Law: he heory and Practice of Weimar Constitutionalism (Durham: Duke University Press, 1997), 23, 27, 68, and 70. Trans.]
4. [Both Gesetz and Recht can be translated simply as “law.” Doing so, however,
would obscure the rich texture of German legal terminology. Moreover, since part
of Schmitt’s purpose is to redraw some of the boundaries among traditional legal
454
Notes to Schmitt’s Preface
concepts, it is necessary to distinguish among types of law and administrative instruments to the extent possible without violating accepted English usage.
Law in the formal sense (Gesetz im formellen Sinn) refers to statutes produced
by legislatures through formal lawmaking procedures. Law in the substantive sense
(Gesetz im materiellen Sinn) refers to forms of law containing legal rules. he latter
form of Gesetz can include customary law (Gewohnheitsrecht), which is not written law, as well as some administrative instruments that have the force of law (e.g.,
Rechtsverordnungen). Recht, by contrast, refers to laws generally, whether written or
unwritten, formal or substantive, but it can also mean justice. For a brief overview of
the sources of the law in Germany, see Nigel Foster, German Legal System and Laws
(London: Blackstone Press, 1996), 51–53.
Often, Schmitt does not make explicit reference to the classic formulations of
law in the formal or substantive sense. It is necessary to discern from the context
whether he is referring to statutes in the narrow formal sense or legal instruments
containing a legal rule that are not the product of the formal lawmaking procedures
of parliament. Even in these instances, however, a clear distinction is often not available. Schmitt is calling attention to what he considers a fundamental, and detrimental, change in the understanding of statutes under the Weimar Constitution. A
statute, in Schmitt’s view, should not merely be a product of the formal lawmaking
procedures of parliament, in this case the Reichstag. It should also meet certain
other criteria, most notably the generality requirement. In other words, a statute
should not apply to individuals or to a particular instance, as would typically be the
case with an administrative law instrument. Rather, it should be applicable generally
and beyond the immediate instance. Schmitt’s preferred understanding of a statute,
therefore, combines the formal and substantive concepts outlined above.
Schmitt’s argument also involves myriad administrative law terms. Maßnahmen,
or measures, is a general term that can refer to any one of several administrative law
instruments, such as decrees (Verordnungen) and orders (Anordnungen). Art. 48,
for example, which empowers the President to take extraordinary action under certain conditions, refers to Maßnahmen, even though presidential action under Art.
48 typically took the form of decrees (Verordnungen) and, less frequently, orders
(Anordnungen). Mostly, however, the term measures (Maßnahmen) is meant to
refer to administrative law instruments that do not apply beyond the particular case.
As noted, decrees under certain conditions can have the force of law in that they
contain a legal rule that applies beyond the particular case (Rechtsverordnungen).
Keeping in mind that there is no hard-and-fast rule, one can set up a hierarchy
of administrative law instruments, proceeding from the highest potential level
of generality to the lowest: decrees with the force of law (Rechtsverordnungen);
simple decrees (Verordnungen), which may or may not have the force of law; orders
(Anordnungen) and rulings or judgments (Verfügungen), which tend to apply to a
particular instance, though these might have more lasting consequences; and instructions (Anweisungen), which are usually merely internal administrative directives. Trans.]
5. [he Reichsgericht was the only national court during the Reich period. Established in 1877, it had appellate jurisdiction in civil and criminal cases. he Reichsgericht was retained under the Weimar Constitution, though it took a decidedly
Notes to Schmitt’s Preface
455
diferent posture. Relecting the German tradition of a judiciary deferential toward
state authority, the Reichsgericht did not question the constitutionality of Reich
laws prior to the Weimar Republic. In the post–World War I era, the Reichsgericht,
along with the other newly established high courts, the Reichsinanzgericht (Federal
Tax Court) and the Reichsarbeitsgericht (Federal Labor Court), claimed the power
of judicial review. Art. 13 of the Weimar Constitution permitted high courts to review cases of conlict between Reich and Land laws. As was the case in the United
States, such issues of federal supremacy provided courts the opportunity to consider the constitutionality of laws, but this did not constitute an explicit grant of the
authority of judicial review. Nonetheless, the President of the Reichsgericht from
1922 to 1929, Walter Simons, advocated a role for the Reichsgericht in German politics comparable to that exercised by the U.S. Supreme Court. he Reichsgericht did
ind a number of laws in violation of the Constitution. Despite this newfound judicial assertiveness, however, the Reichsgericht never attained the position in German
politics envisioned by Simons, remaining most of the time quite careful not to challenge state authority directly.
On the history and institutional features of the Reichsgericht prior to Weimar,
see Kai Müller, Der Hüter des Rechts: Die Stellung des Reichsgerichts im deutschen
Kaiserreich, 1879–1918 (Baden-Baden: Nomos, 1997). he personnel and institutional
features of the Reichsgericht in the Weimar period are covered extensively in Adolf
Lobe, ed., Fünzig Jahre Reichsgericht (Berlin: Walter de Gruyter, 1929). On judicial
review during the Weimar period, see Knut Wolfgang Nörr, Richter zwischen Gesetz und Wirklichkeit: Die Reaktion des Reichsgerichts auf die Krisen von Weltkrieg
und Inlation, und die Entfaltung eines neues richterlichen Selbstverständnis (Heidelberg: C. F. Müller, 1996); Gertrude Lübbe-Wolf, “Safeguards of Civil and Constitutional Rights—the Debate on the Role of the Reichsgericht,” in German and
American Constitutional hought: Contexts, Interaction and Historical Realities, ed.
Hermann Wellenreuter (New York: Berg, 1990); and Caldwell, Popular Sovereignty
and Crisis, 145–70. Johannes Mattern, Principles of the Constitutional Jurisprudence
of the German National Republic (Baltimore: Johns Hopkins Press, 1928), 249–56,
examines the jurisdictional grant of Art. 13 and the decisions reached on the basis
of it. Trans.]
6. [Like the Anglo-American idea of the rule of law, the Rechtsstaat entails legal
limitations on the conduct of government. An important diference is that the rule of
law involves the consent of the governed in some form, whether expressed in terms
of democratic control of the state or more implicitly, such as in tacit acceptance of
common-law principles. he Rechtsstaat concept, by contrast, did not always necessarily entail consent of the governed. Limitations on the conduct of state action
in early nineteenth-century Germany, for example, were conceived as acts of grace
by monarchs and their governments. hough the monarchs need not have granted
political and civil rights, once conferred on the citizenry these legal limitations
were genuine restraints on state action. Over the course of the nineteenth century, Germans received signiicant degrees of legal protection from arbitrary state
action, even though they often did not have full rights of political participation in
a democratic government. Because the state could deine itself only through law, it
expanded the sphere of law as it extended the reach of its own authority, perfecting
the Rechtsstaat idea without ever becoming fully democratic.
456
Notes to Schmitt’s Preface
For leading nineteenth-century understandings of the concept, see Robert von
Mohl, Das Staatsrecht des Königreich Württemberg (Tübingen, 1829), 1:8; and Friedrich Julius Stahl, Die Philosophie des Rechts (1837), vol. 2, sec. 36. Konrad Hesse,
“Der Rechtsstaat im Verfassungssystem des Grundgesetzes,” in Staatsverfassung
und Kirchenordnung: Festgabe für Rudolf Smend zum 80 Geburtstag am 15 Januar
1962, ed. Konrad Hesse, Siegfried Reicke, and Ulrich Scheuner (Tübingen: J. C. B.
Mohr [Paul Siebeck], 1962), is an inluential contemporary account of the more directly legal aspects of the Rechtsstaat. On its history, see Böckenförde, “Entstehung
und Wandel des Rechtsstaatsbegrifs,” in Recht, Staat, Freiheit; and Ingeborg Maus,
“Entwicklung und Funktionswandel der heorie des bürgerlichen Rechtsstaats,” in
Rechtstheorie und politische heorie im Industriekapitalismus (Munich: Wilhelm
Fink, 1986). Trans.]
7. [Unless otherwise indicated, all page references will be to the original German
edition. Trans.]
1. Absolute Concept of the Constitution
1. [he legislative-reservation clauses (Gesetzesvorbehalte) relect the German
understanding of the role of the legislature in rights protection prior to the Federal
Republic. Under absolutist monarchies of the seventeenth and eighteenth centuries,
the German state was understood as an impersonal entity with a purpose independent of the strivings of the individuals and groups that constituted society. he concept of the independent state remained vibrant into the Weimar Republic, though
in modiied form, and was particularly important to Schmitt. he important change
concerned the institutional connections between state and society. Speciically, the
liberal reforms of the nineteenth century in many parts of Germany instituted what
is commonly termed “constitutional dualism,” under which the state and its executive retained a considerable degree of independence from society. However, for certain actions, in particular, those that interfered with the freedom and property of
citizens, the state required the consent of society represented in the legislature. In
contrast to Americans, therefore, who viewed both the executive and legislature
as potential threats to citizens’ rights, nineteenth-century Germans looked to the
legislature as the primary guarantor of rights against an overbearing executive. he
people’s representatives in parliament, it was thought, would not infringe on their
own liberties, so German rights provisions typically proclaimed that a right could
not be infringed “unless by law.” Such provisions are explicit grants to parliament
to enact restrictions on rights. Article 118 of the Weimar Constitution, for example,
permits statutory exceptions to the right of freedom of opinion. See Ernst-Wolfgang
Böckenförde, Gesetz und gesetzgebende Gewalt: Von den Anfänger der deutschen
Staatsrechtslehre bis zur Höhe des staatsrechtlichen Positivismus (Berlin: Duncker
und Humblot, 1981), esp. 271–80; and Michael Stolleis, Geschichte des öftentlichen
Rechts in Deutschland (Munich: C. H. Beck, 1992), 2:111. Trans.]
2. On the opposition of Power (Macht) (potestas) and Auctoritas, cf. the remarks
to § 8, p. 75.
Notes to Chapter 1
457
4. Ideal Concept of the Constitution
1. [Schmitt includes the English translation of “freie Regierung” in quotation
marks, which would be redundant here. Trans.]
2. [Unterscheidung and Trennung are typically rendered “distinction” and “separation,” respectively. However, speaking of a “distinction of powers” would be
confusing to an English reader in this context. So I have used the more conventional “separation of powers” for Gewaltenunterscheidung and Unterscheidung der
Gewalten, while Trennung retains its standard meaning of “separation.” Teilung is
usually rendered “division.” I have adhered to this except where it might again be
confusing to English readers. In such cases, I have used “separation of powers” as
well. Trans.]
5. Meanings of the Term “Basic Law”
1. [he term used here, the past tense of durchbrechen, refers to a debate during the Weimar Republic on the legitimacy of a Verfassungsdurchbrechung. In other
words, can a qualiied Reichstag majority (i.e. a two-thirds majority capable of formally amending the constitution) pass a statute that directly violates a constitutional
provision without making a formal change in the constitutional text. Horst Ehmke
provides an excellent review of the origins of the disputed concept and the response
to the problem in the early Federal Republic. See “Verfassungsänderung und Verfassungsdurchbrechung,” in Beiträge zur Verfassungstheorie und Verfassungspolitik,
ed. Peter Häberle (Königstein: Athenäum Verlag, 1981).
here is no direct English equivalent for this term, so any rendering will be somewhat awkward. I have used either “rupture” or “violate” depending on the stylistic
demands of the particular passage. Trans.]
6. Origin of the Constitution
1. According to G. Jellinek, Allgemeine Staatslehre, p. 465, the public law of the
German Reich includes the concept of the basic law (lex fundamentalis) since the
Peace of Westphalia. Nevertheless, the word occurs earlier in the public law literature and designates the Golden Bull of 1356, the electoral concessions of the electors with the Kaiser and the written results of the Reichstag. See, for example, Arumaeus, Discursus academici de iure publico, Jena 1616, p. 65, 1007, disc. XXXIII.
8. he Constitution-Making Power
1. he distinction of power and authority need not be further elaborated for
the continuing exposition of this constitutional theory. Nevertheless, it is briely
outlined here because of its great signiicance for the general theory of the state.
Concepts such as sovereignty and majesty by necessity always correspond only to
458
Notes to Chapter 8
efective power. Authority, by contrast, denotes a proile that rests essentially on
the element of continuity and refers to tradition and duration. Both power and authority are, combined with one another, efective and vital in every state. he classic
juxtaposition is also found in Roman public law. he senate had auctoritas; potestas
and imperium, by contrast, are derived from the people. According to Mommsen,
Römisches Staatsrecht, III, p. 1033, auctoritas is a “word that deies any strict deinition.” According to Victor Ehrenberg, “Monumentum Antiochenum,” Klio, vol.
XIX, 1924, pp. 202/3, the word denotes something “ethical-social,” a “position oddly
mixed together from political power and social prestige” that “rests on supplements
and social validity.” Cf. further v. Premerstein in the journal Hermes, vol. 59, 1924,
p. 104. Also R. Heinze, Hermes, vol. 60, 1925, p. 345, and Richard Schmidt, Verfassungsaufbau und Weltreichsbildung, Leipzig 1926, p. 38. Despite its subsequent
powerlessness, the Senate retained its authority, and, in the imperial period, it ultimately became the sole organ still able to confer something like “legitimacy” after
the power of the Roman people perished in the Empire. In reference to the emperor,
the roman pope also claimed for himself auctoritas (not potestas) in the special
sense, while the emperor had potestas. he manner of expression in St. Gelasius I’s
letter to the emperor Anastasius from the year 494 is especially apt in this regard
and, as an often cited document dominating the great polemic of the tenth and
eleventh centuries, is especially meaningful: “Duo sunt quibus principaliter mundus
hic regitur: auctoritas sacra pontiicum et regalis potestas” (Migne, Patr. Lat. 59,
p. 42 A; Carl Mirbt, Quellen zur Geschichte des Papstums, 3d ed., pp. 67, 122, 123).
Perhaps the distinction is of interest also for the clariication of currently relevant questions. One could raise the question whether the League of Nations has a
potestas or auctoritas that is diferent from the potestas or auctoritas of the states
directing it. Previously, the League of Nations was permitted to have neither [76]
independent potestas nor its own auctoritas. On the contrary, one can certainly say
that the standing International Court of Justice in he Hague has authority. It naturally has no potestas. Nevertheless, the authority of a court of justice, because of the
bond of the judge to the valid law, is again a special case of authority and is not actually political because due to this normative bond it does not have its own political
existence, and its pouvoir, after the expression of Montesquieu, is “en quelque façon
nul” (cf. p. 185). he question of the extent to which both concepts, power and authority, correspond to the principles of political form, identity, and representation
presented below (p. 204), would be developed most optimally in a general theory of
the state.
2. [William Barclay (1546–1608), who introduced the term in the title of a work
published in 1600, intended to emphasize hostility toward the emerging absolute
monarchs. Subsequent writers associated with the term, such as heodor Beza
(1519–1605) and François Hotman (1524–90), did not reject kingship. hey were
concerned, rather, with restoring the traditional rights of the estates vis-à-vis monarchs. See Jürgen Dennert, comp., Beza, Brutus, Hotman: Calvinistische Monarchomachen, trans. Hans Klingelhöfer (Cologne: Westdeutscher Verlag, 1968). Trans.]
Notes to Chapter 8
459
11. he Concept of the Constitution
1. [Kompetenz-Kompetenz refers to the nineteenth-century theory that the
Reich had an unlimited authority to deine the extent of its own authority. Michael
Stolleis, Geschichte des öfentlichen Rechts in Deutschland, vol. 2: Staatsrechtslehre
un Verwaltungswissenschaft 1800–1914 (Munich: Verlag C. H. Beck, 1992), 2:358, 367.
Trans.]
2. [he asterisks at several points in this paragraph referred to a number 8 at the
bottom of the original p. 115. Trans.]
3. [he Staatsgerichtshof difered from the other high courts in the Weimar
Republic in that it was only convened on occasion to address particular questions
brought to it by governmental oicials, with its composition varying according to
the issue at hand. Moreover, the fact that Art. 19 constituted an explicit grant of
authority to consider a range of constitutional questions in the area of federalism,
while Art. 59 established a complaint procedure allowing the Reichstag to challenge
actions by the President, the Reich government, and its ministers, together suggest
that the Staatsgerichtshof was meant to function like a constitutional court. hough
the Staatsgerichtshof decided a number of very important cases, it never exercised
signiicant control over governmental action, rarely challenging state action, particularly that taken under Art. 48. For an analysis of the Staatsgerichtshof ’s jurisdiction and a review of its decisions, see Johannes Mattern, Principles of the Constitutional Jurisprudence of the German National Republic (Baltimore: Johns Hopkins
University Press, 1928), 266–304. Trans.]
12. he Bourgeois Rechtsstaat
1. [Article 31 of the Weimar Constitution established an Electoral Review Commission (Wahlprüfungsgericht) to settle electoral disputes. It was to function procedurally somewhat like an administrative court, though it was to be composed
of an unspeciied number of the members of the Reichstag, who were chosen for
the duration of the current session and of the members of the anticipated National
Administrative Court (Reichsverwaltungsgericht), which was never established. Instead, judges were selected from the Reichsgericht. hree members from the Reichstag and two from the Reichsgericht formed a quorum necessary for judgment,
which could be rendered only after a public hearing. When the commission was not
conducting a hearing prior to a judgment, a national commissioner appointed by
the President led its proceedings. For an overview of the commission’s history, composition, jurisdiction, and procedure, see Georg Kaisenberg, “Die Wahlprüfung,” in
Handbuch des deutschen Staatsrechts, ed. Gerhart Anschütz and Richard homa
(Tübingen: J. C. B. Mohr, 1930–32); and Johannes Mattern, Principles of the Constitutional Jurisprudence of the German National Republic (Baltimore: Johns Hopkins
Press, 1928), 428–29.
“Electoral Review Court” would be a more literal rendering. he term commission, however, better captures the combination of adjudication and administration
characteristic of the administrative state in the United States. Trans.]
460
Notes to Chapter 12
13. he Rechtsstaat Concept of Law
1. [Schmitt includes this phrase in English. I have deleted it to avoid repetition.
Trans.].
2. In the overview by G. Jellinek, Gesetz und Verordnung, p. 113f., numerous
notes are found on the concept of statute. Nevertheless, Jellinek’s quotations are
extraordinarily prone to misunderstanding and are even incorrect. On p. 113, for
example, he introduces an expression of Pister that directly shows how much the
character of the generality of the statute had been retained. he misunderstandings
of Jellinek go so far that on p. 30 he translates the turn of phrase “without a rule” as
“without special (!) provision,” while the essential element consists precisely in the
fact that it means “without general rule.” “Rule” and “will” are confused with one
another without distinction (p. 35), and the most astounding thing is Hobbes (p. 45)
appears as a proponent of the Aristotelian concept of law.
14. he Basic Rights
1. [Prior to World War I, the Reich government was not the primary institutional locus for regulation of the economy and the provision of welfare services.
Municipalities operating under the law of “local self-government” (Selbstverwaltung), which stemmed from the Prussian reforms of the early nineteenth century
and became quite common throughout Germany in the nineteenth and early twentieth centuries, were primarily responsible for these governmental functions. he
law of local self-government provided local communities considerable autonomy
from central (then Land, later Land and Reich) control because, it was thought,
local government was merely “society” managing the “technical” details of everyday
life that did not impinge on “political” afairs, such as the underlying purpose of the
state itself. Under this system, cities operated businesses, regulated industry and
commerce, and provided extensive social welfare services, anticipating the welfare
and administrative state in the twentieth century.
During World War I, the Reich government became ever more actively involved
in regulating the economy and engaging in economic activities. On the basis of an
enabling act, the Bundesrat issued hundreds of decrees covering almost every conceivable area of productive activity and economic exchange. he wartime government by decree clearly violated prewar understandings of the priority of the statute
and enabled the Reich to attain a level of authority not possible in peacetime, more
or less circumventing the complex constitutional arrangements under Bismarck’s
Reich Constitution. But the general sense was that such actions were temporary
deviations from accepted practice necessitated by the war efort.
On local self-government in the German state, see Hans Herzfeld, Demokratie
und Selbstverwaltung in der Weimarer Epoche (Berlin: Kohlhammer, 1957). For
Schmitt’s critique of local self-government’s role in the tendency toward the quantitative total state, see Hüter der Verfassung (Berlin: Duncker und Humblot, [1931]
1985), 92–93. Seitzer, Comparative History and Legal heory: Carl Schmitt in the
First German Democracy (Westport, Conn.: Greenwood Press, 2001), 41–71, argues
Notes to Chapter 14
461
that Schmitt’s position on local self-government misunderstands the nature of the
independent state in the Reich period. On the issue of the changing role of law in
the emerging welfare and administrative state in interwar Germany, see William E.
Scheuerman, Between the Norm and the Exception: he Frankfurt School and the
Rule of Law (Cambridge, Mass.: MIT Press, 1994). For a survey of the administrative
measures during World War I and the reaction to them, see Michael Stolleis, Geschichte des öfentlichen Rechts in Deutschland (Munich: C. H. Beck, 1999), 3:67–71.
Trans.]
15. he Separation of Powers
1. [Unterscheidung and Trennung are typically rendered “distinction” and “separation,” respectively. However, speaking of a “distinction of powers” would be
confusing to an English reader in this context. So I have used the more conventional “separation of powers” for Gewaltenunterscheidung and Unterscheidung der
Gewalten, while Trennung retains its standard meaning of “separation.” Teilung is
usually rendered “division.” I have adhered to this except where it might again be
confusing to English readers. In such cases, I have used “separation of powers” as
well. Trans.]
2. On the meaning of this expression, cf. Die Diktatur, p. 109. Perhaps the position signiies that the judicial power as such does not have its own political existence, because it is entirely subsumed under the normative element. Montesquieu’s
profundity is concealed through his apparently aphoristic style and, therefore, escapes notice.
3. [Actually, such an override vote requires a two-thirds majority vote of both
houses of Congress. Trans.]
4. [his should read “both houses of Congress.” Trans.]
17. he heory of Democracy
1. Total number of the inhabitants of the English global empire: 453 million
Europe
Australia
America
Africa
Mandates
Asia
47 million
7 million
11 million
65 million overwhelmingly white population
54 million
8 million
324 million
Total number of the inhabitants of the French area of dominance:
Europe
Colonies
Mandates
462
39 million
60 million
14 million
113 million
Notes to Chapter 17
2. Clause 1 of this much disputed Art. 27 declares property rights over ground
and mineral stores inside the borders of the Mexican state to be property of the
nation, which is transferred to the individual as private property. Section VIII stipulates that the possibility of obtaining property in land or waterways is guided by
the following requirements: 1. only Mexicans, by birth or through naturalization,
or Mexican companies have a right to obtain such property or concessions for the
exploitation of mines, water works, or valuable minerals. he state can guarantee
the same right to foreigners provided that they declare their consent to the Mexican
Foreign Oice that their private property obtained in this way remains Mexican national property and that they do not call for the protection of their government for
the beneit of this private property. If they infringe on this provision, they lose their
rights in favor of the Mexican nation. In a zone of 100 kilometers from the coast, a
foreigner can under no conditions obtain this direct property over land or water.
25. Development of the Parliamentary System
1. On the “false portrayal” of the voters’ will through the individual vote system, see K. Loewenstein, “Minderheitsregierung in Grossbritannien,” Annalen des
Deutschen Reiches, 1925, pp. 61, 52f. he igures are:
Total number of the enfranchised
Votes cast
Conservatives
Labour
Liberals
1924
19,949,000
16,120,735
7,385,139
5,487,620
2,982,563
1923
19,174,000
14,186,000
5,360,000
4,348,000
4,252,000
413
151
40
–5
258
193
158
6
Mandates
Conservatives
Labour
Liberals
Others
he Association for the Proportional System of Representation (Proportional
Representation Society [Schmitt’s English]) calculates (Loewenstein, p. 54) that
among the Conservatives a mandate required 20,000 votes; among Labour 39,000;
among the Liberals, by contrast, 90,000. In Scotland, Labour has more votes than
Conservatives, but, nevertheless, ten fewer mandates, etc.
26. Formation of the Parliamentary System
1. [Schmitt’s play on words involving Fall, which might variously be rendered
“instance” or “collapse,” does not work in English when, as here, it is used in reference to the term for “war,” Krieg. Trans.]
Notes to Chapter 26
463
C a r l s C h m i t t (1888–1985) was a leading political and legal theorist of the
twentieth century. His translated works include Political heology: Four Chapters
on the Concept of Sovereignty (1985); he Crisis of Parliamentary Democracy (1985);
and he Concept of the Political (1976).
J e f f r e y s e i t z e r teaches at Roosevelt University. He is the author of Comparative History and Legal heory: Carl Schmitt and the First German Democracy
(2001) and editor and translator of Carl Schmitt’s Legality and Legitimacy (Duke,
2004).
e l l e n k e n n e D y is a professor of political science at the University of Pennsylvania. Her books include Constitutional Failure: Carl Schmitt in Weimar (Duke,
2004); he Bundesbank (1997); and Freedom and the Open Society: Henri Bergson’s
Contribution to Political Philosophy (1987).
C h r i s t o P h e r t h o r n h i l l is a professor of politics at the University of
Glasgow. His books include German Political Philosophy: he Metaphysics of Law
(2006) and Political heory in Modern Germany: An Introduction (2000).
Index
Acclamation, 39, 40, 131, 272, 273, 275,
278, 302–306
Anschütz, Gerhard, 28, 188, 353
Aquinas, homas, 61, 237, 260
Aristotle, 60–61, 237, 249, 259–260
Authority, contrasted with power, 458
n. 1
Basic law, 94–96. See also Law
Basic rights: absolute and relative,
204–205; bourgeois Rechtsstaat
and, 204–205, 207, 219; concept of,
203–205; democracy and, 207; distinctions among, 203–204, 206; in
Germany, 199, 200–202, 205; history
of, 197–202; individualist character
of, 203, 206, 207; institutional rights
distinct from, 208–219; legal character of, 202–203, 213; political intrusion into, 204–207; to resistance,
202–203; social, 207–208
Bill of Rights: American states and,
197–198; English (1688), 99; German,
201–202; Soviet, 199–200, 201
Bloch, M., 308
Bluntschli, J. C., 242, 293, 339, 340
Bodin, J., 10
Bolingbroke, Henry, 182, 221, 237–238
Brüning, H., 21, 22, 24, 25
Bryce, J., 277
Calhoun, John C., 390–392, 404
“Competence-competence,” 150, 174,
402–403
Compromise, 84–88
Constant, Benjamin, 31, 318–319
Constitution, 59–66; absolute and
relative, 67; amendability of, 71,
72–74, 150–158, 214–215; bourgeois
Rechtsstaat and, 91–93; as codiication, 69–70; compromise character
of, 84; as contract, 69, 103, 112–124;
as decision, 77–80, 82–84, 87–88,
102–103, 107–111, 125; democracy
and, 268–279; dispute about, 158–
164; English, 69–70, 71–72, 98–99;
formal concept of, 67–68, 70–71,
74, 142, 148; as form of forms, 60;
French, 70, 72, 101, 171, 177, 199, 244,
296, 319; gaps in, 107, 353; German,
99–111, 244–245; ideal concept of,
68, 89–93; inviolability of, 158–159;
mixed, 237; origin of, 98; political
component of, 92–93; as political
decision, 77–82; positive concept of,
75, 92; Rechtsstaat component of,
92–93; status and, 60–61; as statute,
67, 69; United States, 133, 149, 153,
171; written, 69–71, 92. See also
Legitimacy; Weimar Constitution
Constitutional law, 75–82
Constitutional system, German (1871–
1933), 453 n. 3
Constitutional theory, 53–54
Constitutional heory (Schmitt), 2,
26–35, 48
Constitution-making power, 75–80,
101, 117, 125–135, 140–145, 151
Crisis of Parliamentary Democracy
(Schmitt), 29–30
Cromwell, Oliver, 92, 261
Dawes Plan, 122
Declaration of Independence (1776),
126–127
Declaration of the Rights of Man and
of the Citizen (1789), 91–92, 170–172,
198
Democracy: administration and,
297–299; ancient Greek, 259–260;
boundaries of, 302–307; concept
of, 256–264; deinition of, 264; and
federal state, 264, 267; French, 261;
homogeneity in, 248, 260, 261, 264,
Democracy (continued)
267; identity and, 264, 265; international law and, 295; judiciary
and, 299–301; legislation and, 286;
majority decision under, 303–307;
nation and, 261; the people in, 268–
279; as political concept, 258; political unity and, 248; religion and, 261,
266–267; in Soviet Union, 263. See
also Acclamation; Equality; Legitimacy
Dictatorship, sovereign and commissarial, 21, 24, 32, 109–110, 447 n. 48
Diktatur, Die (Schmitt), 32, 447 n. 48
Ebert, Friedrich, 20
Elections, 268–270, 273–274, 276, 278–
279, 280–285; review of, 460 n. 1
Equality: before the law, 194, 281–285;
in democracy, 256, 257–267; tension
with freedom, 42–44
Federalist Papers, he, 127, 405
Federal system, 446 n. 47; consolidation of Prussia with the Reich, 22–24
Federation, 384; competencies of,
400–403; contractual character
of, 385; German, 387; high treason
against, 402–404; homogeneity of,
388, 392–393, 394–395, 396; intervention by and in, 386–388, 394–395,
396; jus belli and, 383, 386–388,
394–395, 396; as legal subject, 396–
399; political existence and, 382, 386,
388–389, 394–395, 405–406; relation
to Land law, 397–399; sovereignty
in, 389–403; status and, 385, 395; territories of, 399–400. See also League
of Nations
Forsthof, Ernst, 47
Free Law Movement, 6, 301
Gehlen, Arnold, 47
Gierke, Otto von, 247
Gneist, Rudolf, 169, 175, 183, 189, 285
Guizot, F., 335, 349
Habermas, Jürgen, 37, 41–42, 43–44
Hegel, G. W. F., 171, 183
466
Hindenburg, Paul von, 20
Hobbes, homas, 18
Homogeneity, 159, 248. See also Federation
Hüter der Verfassung (Schmitt; Guardian of the Constitution), 20, 26,
32–33
Identity, 32–34; as principle of political
form, 241–242, 302; representation
and, 38–40
Jellinek, Georg, 14, 60, 71, 197, 453 n. 2,
461 n. 2
Judges, independence of, 174, 176, 195,
299–300
Judicial review: of administration, 174–
176; of constitutionality, 163–164,
178, 230–232
Judiciary, and democracy, 299
Justice, political, 176–178, 299–301
Kant, Immanuel, 113, 170–171, 183
Kelsen, Hans, 63–64, 280; Austrian
constitution and, 12–13; on sovereignty, 6; on the state, 5–6
Kirchheimer, Otto, 36
Laband, Paul, 11, 186
Law: decrees and, 189; forms of, 454
n. 4; as general norm, 190–196; as
intrusion into freedom and property, 173, 190, 457 n. 1; “on the basis
of,” 189, 191–193. See also Basic law;
Equality; Rechtsstaat
League of Nations, 71, 400, 458 n. 1
Legality and Legitimacy (Schmitt), 20,
23, 26
Legal positivism, 10, 13–14; German
School of Law and, 11–12
Legislative-reservation clauses, 457
n. 1
Legitimacy, 100, 245; of constitution,
135–138; democratic and dynastic
forms of, 138–139. See also Constitution
Local self-government, as institutional
guarantee, 298–299, 461 n. 1
Locke, John, 182
Index
Luhmann, Niklas, 48
Lukács, Georg, 6
Machiavelli, Niccolò, 237, 313
Magna Carta, 98–99, 197
Marx, Karl, 333, 338
Mill, John Stuart, 236
Mohl, R., 183, 336–337
Monarch, as pouvoir neutre, 312–313
Monarchomachs, 182, 237, 459 n. 2
Monarchy: constitutional, 160, 313–
315; democracy and, 160, 308; dualism and, 103–105; German, 104, 160;
justiication of, 311–313; modern
constitution and, 313–315; restoration and, 103–104, 129; as subject
of constitution-making power,
103–104; types of, 308–310. See also
Legitimacy
Montesquieu, Charles Louis de, 90–91,
182, 221–222, 338, 346, 393
Nation, 101, 127–129
Naumann, Friedrich, 29, 201, 303, 310
Nazi Party, 21–23, 24, 25; Hitler and,
24; state and, 48–49. See also
Schmitt, Carl
Neo-Kantianism, 3–7; Herman Cohen
and, 3–4; Marburg School of, 3–4;
reaction against, 6–7; Rechtsstaat
and, 4, 5; Social Democratic Party
and, 4–5; Southwest School of, 4
Neumann, Franz, 37, 43–44
Papen, Franz von, 22, 23, 25
Parliament, 27; conidence vs. noconidence in, 294–295, 364–366,
376–378; dissolution of, 294, 373–
378; English, 30, 79–80; public discussion in, 337–338, 341–342; representative character of, 248–252;
responsibility of, 178, 359–361; twochamber system of, 318–327. See
also President; Schmitt, Carl
Parliamentarianism: democracy and,
291–294; in England, 293–294; federalism and, 354–355; government
and, 291–294
Parliamentary system: cabinet form
of, 368–369; in England, 342–348;
in France and Belgium, 348–351;
in Germany, 351–358; historical
overview of, 328, 331–334, 343–358;
ideal foundations of, 321, 334–342;
presidential form of, 369–372; prime
minister form of, 366–368; proportional representation and, 348; of
Weimar Constitution, 362
Plebiscite, 134, 305
Political form: bourgeois Rechtsstaat
and, 236–239; political unity and,
239–241, 243–252; two principles of,
239–242
Political parties, 17–18, 19–22; in English Parliament, 348; leadership of,
355–356
Political unity, 75–76, 97–124, 141, 143,
144. See also Democracy; Political
form
Political will, 280
Polybius, 237, 334–335
Popular initiative, 283, 291, 302, 303
President, 27, 369–372; dissolution of
parliament and, 373–374, 375–377; as
political leader, 369–272; as pouvoir
neutre, 370–371; in republican constitution, 315–317
Preuß, Hugo, 29, 92, 122, 141, 298,
373
Preuß, Ulrich, 38
Public opinion, 275–278
Public sphere, 38, 42, 272–276
Pufendorf, S., 99–100
Rechtsstaat: bourgeois, 63–64, 169–
180; concept of law of, 181–184, 184–
187, 187–191; legal positivism and, 11;
rule of law and, 181, 456 n. 6; statutory reservation under, 214. See also
Constitution; Democracy; Law
Reichsgericht, 445 n. 5
Reichsrat, 172, 321, 324–325, 325–326
Representation, as principle of political form, 240–241, 242–247
Revolution: in France, 33, 101, 104, 127,
Index
467
Revolution (continued)
133; in Germany, 104–105, 107–111;
in United States, 33, 77
Rights. See Basic rights
Rousseau, Jean-Jacques, 260, 272, 280,
300
Schleicher, Kurt von, 21, 22, 24, 25
Schmitt, Carl: Catholicism and, 449 n.
51; comparative-historical methodology of, 26–35; concept of politics
of, 45–46, 48, 49–50; on constitutional law, 13–14; on equal chance,
23; on executive democracy, 40–41;
historicism and, 443 n. 31; legal
positivism and, 11, 12–14; Marxism and, 7; neo-Kantianism and, 7;
modern political theory and, 36–44;
Nazi Party and, 1–2, 25, 46; on noconidence votes under Art. 54, 448
n. 49; personal background of, 20–
21, 26; on political parties, 23, 40–41;
on presidential emergency powers,
20, 21, 23, 24, 25, 27; sociological
method and, 7; on the state, 13–14,
44–50; traditional commentaries
and, 28; use of ideal types by, 31–34;
Weimar politics and, 20–26
—Works: Constitutional heory, 2,
26–35, 48; Crisis of Parliamentary
Democracy, 29–30; Die Diktatur,
32, 447 n. 48; Hüter der Verfassung
(Guardian of the Constitution), 20,
26, 32–33; Legality and Legitimacy,
20, 23, 26
Separation of powers, 172, 182; in
France, 222, 226; historical origins
of, 221–223; types of, 223–234; in the
United States, 222
Seydel, M., 404
Sieyes, Emmanuel Joseph, 126, 127, 354
Smend, Rudolf, 62, 241, 329
Sovereignty, 154–156, 187, 190, 235; acts
468
of, 110; of the constitution, 104, 235.
See also Federation
Staatsgerichtshof, 23–24, 460 n. 3
Stahl, F., 169, 313–315, 333
State: church and, 85–86, 90, 198, 212;
contracts with, 212; “state of estates,”
97–98. See also Schmitt, Carl; Status
State of exception, 80, 142, 214, 217
Status, 60–61; contract, 117–120; state
and, 100–101, 211
Stein, Lorenz von, 61–62, 175, 183, 245,
333–334
homa, Richard, 29, 256–257
Tocqueville, Alexis de, 319
Triepel, H., 402
Versailles treaty, 121–122, 123
Weber, Max, 12, 31–32, 34, 355–356,
362
Wegner, A., 382
Weimar Constitution, 70, 107–111,
110–111, 134; Art. 18, 406–407; Art.
19, 160–161; Art. 25, 373–374, 375;
Art. 48, 27, 80–81, 157–158, 447 n. 48;
Art. 54, 364–366, 376–377; Art. 56,
366–368; Art. 73, 286, 291, 302–303;
Art. 76, 72–74, 78, 79, 81; Art. 109,
194–195; Art. 129, 86, 146, 210–211,
218–219; Art. 130, 298; Art. 153, 209;
Art. 165, 322–323
Weimar Republic, 3; Art. 48 and, 18,
20, 21, 22, 25, 27; economic crisis
of, 19; fragmented party system of,
18; government crises of, 18; Grand
Coalition and, 17–18, 19, 21; radical
opponents of, 16; republicans of
reason (Vernunftrepublikaner) and,
15–16; role of president in, 20; Social
Democrats and, 16–17, 19, 22
Will, political, 280
Wolzendorf, K., 202–203
Index