The Law Under the Swastika (17 page)

PART TWO

Legal Theory and Practice

FIVE
In the Belly of the Beast: Constitutional Legal Theory
(Staatsrechtslehre)
¹
under National Socialism

I.
During the first half of the twentieth century German constitutional theory kept up with the transition from a constitutional monarchy to a democratic republic, from a republic to a one-party dictatorship, and from a dictatorship back to a democratic republic. The theory of administrative law had to adjust to the transformation of the liberal constitutional state into a social interventionist state. Twice it had to provide commentary on the so-called “war administration law,” and it accompanied the citizens from the age of the stagecoach to the age of the airplane and the computer.

These revolutions and developments posed a great intellectual and scholarly challenge. At the same time they harbored considerable dangers, for a science that proves utterly adaptable and malleable must develop doubts about its own character as a science, and its representatives must ask themselves whether they are capable of coping psychologically with these shifting identities. An urgent question therefore arose: what could preserve the continuity of constitutional theory behind these changing façades and impart stability to it?

This question is of more than historical interest. The political culture of Germany is to a large degree shaped by constitutional theory, by the Federal Constitutional Court and its decisions, and by public discussion of constitutional issues. Nearly all the arguments that are used today date to a period before the Federal Republic, to the empire of 1870 and especially to the Weimar Republic.

In the interest of contemporary political culture, one should therefore ask how constitutional theory weathered these upheavals. How did professors of constitutional and administrative law handle their arguments, and how did they—as politically involved, intelligent, and sensitive people (a general presupposition we shall make)—react to such political upheavals?

Scholars themselves have not contributed much to answering this question. The Association of Constitutional Lawyers did not meet between 1933 and 1949, and it could therefore feel somewhat relieved of the burden of having to subject its own past to critical scrutiny. It was apparently enough to single out a few “black sheep” (Carl Schmitt, Ernst Rudolf Huber, Otto Koellreutter, Reinhard Höhn). Beyond that, the attitude was that anybody who had not been “excessively” National Socialist, who had merely commented on the prevailing law, could soon return, perhaps clutching a democratic textbook on constitutional theory under his arm. In fact, after 1950 it was considered “tactless” to speak about Nazi constitutional law and the involvement of specific individuals. By doing so one ran the danger of insulting a colleague or teacher; moreover, the interpretation of West Germany’s Basic Law provided enough work.

However, during recent years there have been growing signs of a less restrained language and a less biased treatment of the subject. We are currently witnessing for the first time a true “historicization” of National Socialism. During the so-called
Historikerstreit
, some expressed the concern that a purely historical (amoral) examination could lead to a dangerous minimizing of what happened. Opposing voices emphasized that the blending of historical and moral questions that had always been practiced in the past must finally be transcended in favor of “professional” historiography.

As far as constitutional and administrative legal theory are concerned, until now scholars have indeed been in the habit of working with standardized labels. All too often the history of the discipline amounted merely to classifying people as “good” and “evil,” as Nazis and non-Nazis. This was the perspective of de-Nazification and the postwar criminal trials, a perspective that continued to resonate. However, this is now beginning to change. There is a growing number of studies that take a broader perspective, that analyze without moralizing and thus work “historically” in the classic sense. This essay is an attempt at an interim assessment in that direction.

II.
The seemingly stable and unchallenged starting point of constitutional theory as a “science” is the constitutional positivism founded by Carl Friedrich von Gerber and Paul Laband between 1855 and 1875. It appropriated the designation “scientific” and became the yardstick of constitutional law that was practiced in a scientific manner. It was not a political theory but a methodologically justified narrowing of the perspective of judicial theory to the positive constitutional law of the Reich; of course, it did presuppose political agreement with the
establishment of the Reich. In this context scholars concurred with the “content” of positive law. That which was legal also appeared to be legitimate. The task of legal science was to extract the basic ideas contained in the positive law and to work them into a coherent conceptual system.

I will not pursue the political choices behind this façade, nor the attractive questions concerning the origins of the “constructive method” from civil law that was used in this process. What interests us is when and where the first cracks appeared in this seemingly solid structure. There are four clues:

1. Around the turn of the century, so-called “sociological sciences of the state” (Ludwig Gumplowicz, Gustav Ratzenhofer, Franz Oppenheimer, Anton Menger) arose “at the margins” of the discipline. Suddenly there was a resurgence of the demand for an empirical understanding of the state instead of mere legal construction (Conrad Bornhak). Romanticism’s organological theory of the state, long since believed to be dead, experienced a revival, and handbooks of “general theory of the state,” of which there had been none in thirty years, suddenly reappeared around 1900 (Richard Schmidt, G. Jellinek).

2. Shortly before World War I the so-called
Freirechtsschule
(H. Kantorowicz, E. Fuchs, E. Stampe, E. Ehrlich) voiced doubts about the model of how law was produced, spoke about the “public harmfulness of constructive jurisprudence,” and tried to once again give the judge greater latitude in interpreting the law. The classic model of logical syllogism was thus beginning to waver, and the first voices were heard that based the legitimacy of judges’ decisions no longer on their content and derivation from the law, but on what was authorized by the state (Carl Schmitt).

3. The positive constitutional law of the Bismarckian Constitution of 1871 also proved inadequate, so jurists began to think about
Constitutional Amendment and Constitutional Change
(Georg Jellinek, 1906) and
Unwritten Constitutional Law in the Monarchical Federal State
(Rudolf Smend, 1916).

4. The basic debate over legal philosophy in the general theory of the state came to life, and the paths diverged: On the one hand, positivism intensified in unison with the neo-Kantianism of the turn of the century (H. Cohen, P. Natorp, Hans Kelsen); on the other hand, the opposing camp saw a massive politicization and ethicization of the law, almost exclusively in an antidemocratic direction (Erich Kaufmann,
Das Wesen des Völkerrechts und die Clausula rebus sic stantibus
[The nature of international law and the Clausula rebus sic stantibus, 1911]).

The empirical and political elements of constitutional law, pushed
aside since 1870, had thus reappeared before World War I. Since one could not simply return to the pre-positivist blending of legal and nonlegal elements, theorists helped themselves by doubling their perspective. Accordingly, Georg Jellinek’s
Allgemeine Staatslehre
(General theory of the state [1900]), “the most perfect summation of the nineteenth-century theory of the state,” as Kelsen would later say, split into two parts: a legal (normative) and a sociological (empirical) concept of the state. This move took into account how the empirical sciences were clamoring for recognition, and at the same time it preserved the purity of the legal province. Of course, this created epistemological contradictions, and it became clear that Jellinek had based his empirical assumptions, as well, on an idealistic metaphysics of history.

Hans Kelsen (1881–1973), in particular, exposed these shortcomings in his keen and penetrating writings. He demanded a clearer separation of ‘is’ and ‘ought’, of normative and empirical statements, and the expulsion of ethics, politics, and metaphysics from jurisprudence. Through his writings from 1911 on, he led constitutional theory into a fundamental discussion of legal theory. Before 1919 this discussion was carried on in academic circles, but during the turbulent 1920s it broadened and became strident—with anti-Semitic overtones. For instance, the so-called Vienna School of constitutional law clashed with the “prevailing opinion” in Germany philosophically as well as politically.

What was this “prevailing opinion”? If we take, for example, the eighty-four names on the 1922 membership list of the Association of Constitutional Lawyers, we can, by greatly simplifying, form a few groups:
²

1. Initially, the proponents of classic constitutional positivism were still dominant. They accepted the new republic and its constitution, not exactly enthusiastically, but loyally, because in keeping with the doctrine of the “law-creating power of the successful revolution,” it was incontestable in terms of positive law. These were the “rational republicans”
(Vernunftrepublikaner)
of constitutional theory, all of them older men, and they tried to preserve the links to earlier constitutional theory. Typical of this group were Richard Thoma, Heinrich Triepel, and Gerhard Anschütz, who were among the most respected theorists of public law during the Weimar era and later kept their distance from National Socialism.

2. Alongside these jurists, special methodological and political groups increasingly emerged. Taking methodology first, we would probably have to mention Erich Kaufmann as the first “antipositivist
opponent.” His
Kritik der neukantischen Rechtsphilosophie
(Critique of neo-Kantian legal philosophy [1921]), “a first-rate polemical work,”
³
and his talk on the principle of equality at the 1926 Meeting of Constitutional Theorists
⁴
were the first affirmations of a material idea of law
above
positive law, of a renunciation of rationalism and relativism of values—in political terms, the renunciation of parliamentary democracy.

The idea propagated by Kaufmann and others, such as Günter Holstein (who died early)—namely, a change toward “humanistic methodology”—was picked up by Rudolf Smend, who worked it into a theory on the basis of Theodor Litt’s philosophy of culture. In 1928 Smend published his famous book
Verfassung und Verfassungsrecht
(Constitution and constitutional law), which sought to apply the sociological concept of ‘integration’ to the political process. The book’s theory of integration, which resonates to this day—I mention his students Ulrich Scheuner, Konrad Hesse, Wilhelm Hennis, Horst Ehmke, and Peter von Oertzen—was from the beginning surrounded by a twilight of deliberate vagueness. Constantly moving back and forth between descriptive and normative statements, it was searching for a dialectical solution to the tension between the individual and the community. By linking the quality of a state to a polity’s capacity for integration, the theory could brand the Weimar state as a nonstate because it was incapable of integration. And that is precisely how it was understood in the political landscape of 1928.

However, with Kaufmann, Holstein, and Smend, we already find ourselves in the center of the opposition movement against the prevailing constitutional positivism. The only point on which they agreed was their opposition to its methodology. “Without a doubt,” Smend wrote in 1973, looking back, “opinions diverged thereafter. But how the members grouped themselves numerically after that is impossible to say. And in any case, [Hans] Nawiasky was right to protest in 1927 that one couldn’t speak so readily about a prevailing doctrine in the first place.”
⁵

Still, between 1926 and 1929 it became clear that this group, because it rejected the methodological foundations from the imperial era and distrusted the formal understanding of democracy, contained at least the potential of becoming the prevailing opinion in the future. With the exception of Hermann Heller,
⁶
who could be included in this group methodologically but who, as a Social Democrat, was at the other end of the political spectrum, the “antipositivists” were conservative in the sense that they suffered from the humiliation of the Versailles Treaty, rejected the party system, and sought to establish a powerful national
state and abolish class warfare in a national community. They were no longer monarchists, not yet fascists, though no more than lukewarm republicans; they were members of the middle class who were unhappy with the situation under the Weimar regime.

3. A third group is characterized not so much by methodological subtleties as by its clear political opposition to the republic.
⁷
While the majority of constitutional theorists and teachers pursued their political inclinations covertly, in keeping with the ideal of a nonpolitical science of constitutional law, some actively fought against the republic from the lectern. Oddities like the denigration of the national flag as “black, red, mustard” or “black, red, brass” (the actual colors were black, red, gold) or an antirepublican inaugural speech in verse pointed the way.

The group of active opponents of the republic included Otto Koellreutter.
⁸
In an expert opinion on the unconstitutionality of the Communist Party (KPD) and the Nazi party, he came to the conclusion that both parties wanted to destroy the existing order, but that only the KPD was unconstitutional since the Nazis were pursuing a legitimate goal, the national power state.

Others—among them some legal historians and legal philosophers—drafted new ideas: for E. Tatarin-Tarnheyden
⁹
and H. Herrfahrdt,
¹⁰
a future authoritarian corporate state; for J. Binder,
¹¹
an authoritarian state based on Hegel and Fichte; for Hans Gerber,
¹²
Walther Merk, and others, a Germanic Führer-state with folk law and vigorous leadership. All these variants had in common their fundamental antidemocratic features, their rejection of Marxism, and their philosophical attachment to nineteenth-century German idealism.