The Law Under the Swastika (18 page)

4. Finally, a fourth group formed during the last years of the republic and saw itself as the group of the “young rightists.” There were many contacts with the so-called TAT circle (H. Zehrer) and the Order of Young Germans. Philosophically, they were “legal Hegelians,” such as K. Larenz,
¹³
F. Brunstäd, and Gerhard Dulckeit, or they cultivated a kind of heroic decisionism in the sense of Ernst Jünger. Some of them soon joined National Socialism as staunch supporters; Ernst Rudolf Huber,
¹⁴
Ernst Forsthoff,
¹⁵
and Reinhard Höhn
¹⁶
were among this group. This, more than anywhere else, is also where we should place the ambiguously multifaceted Carl Schmitt: clearly above average in eloquence, education, and intelligence, he sought to deal the weakened republic the final, deliberate blows. The man who had still worked with Chancellor Franz von Papen and General Kurt von Schleicher in the fall of 1932 became, the following January, the first prominent constitutional theorist to make himself available to the National Socialists.
¹⁷

If we survey these individuals once more, it becomes clear how difficult it is to assign them to one group or another. Positivist methodology did not always go along with approval for the republic, but frequently it did. Hostility toward positivism often converged with hostility toward the republic, though it could also be grounded in a conception of natural law, derived, for instance, from Catholic social doctrine. The only Social Democrat among the constitutional theorists, Hermann Heller,
¹⁸
was not a “positivist.” He combined a strong social-science orientation with elements of philosophical idealism, and politically he, like Kelsen, was an unequivocal and impressive defender of parliamentary democracy.

However, the example of Hermann Heller is by no means intended to suggest that the methodological and political positions could be combined at will. In actual fact, from about 1925 on there was a main current that combined various streams: the right-leaning political orientation of the bourgeoisie in the crises of the republic, all variants of philosophical irrationalism, the longing for “leadership” and “community,” and the basic anti-Enlightenment mood of these years. This current went along with a move—fed by the war experience of 1914—toward “national community,” which people sought out as an island of salvation, as it were, in the sea of class warfare. The solid structures of this national community were looked for in new “orders,” corporate models, and in imitation of the Reich President’s quasi-dictatorial powers.

Negatively, this meant a rejection of the so-called corrupting (
zersetzendes
) intellect, contempt for supposedly “flat” rational and utilitarian arguments, a rejection of parliamentarianism and parties with their compromises and inability to engage in the “vigorous” politics people were longing for. Within a period of a few years appeared a spate of books, such as Moeller van den Bruck’s
Drittes Reich
(Third Reich [1923]), Othmar Spann’s
Wahrer Staat
(The true state [1921]), Edgar Jung’s
Die Herrschaft der Minderwertigen
(The rule of the inferior [1927]), Ernst Jünger’s
Der Arbeiter
(The worker [1928]), the Balthic enthusiast Krannhals’s
Organische Weltbild
(The organic view of the world [1925]), and Carl Schmitt’s destructive analyses of the “state of parliamentarianism in terms of the history of ideas” (1923). Constitutional theory inevitably was affected by this. In fact, for the most part it was found on one side of the barricades, with the republic on the other.

III.
We could elucidate the authoritarian and irrational trend in the thought of the period, which was on the whole very unfavorable
to the republic, in the field of constitutional theory by looking at individual themes. For example, one could think of the revival of the doctrine of the purpose of state (
Staatszweck
), which positivism had once declared finished and “unjuristic.”
¹⁹

A second example would be the question, hotly contested in the Weimar Republic, of whether a judge had the authority to declare a legal norm unconstitutional (the so-called right of judicial review). This is a good example because it allows us to observe in a very graphic way how scholarly opinion wavered in the political current of the time and eventually came down on the antiparliamentary side: After 1925 more and more constitutional theorists argued that a judge was permitted to suspend parliamentary law.
²⁰

A third example would be the deliberate widening of the Reich President’s dictatorial powers on the basis of Article 48 of the Weimar Constitution. The methodological tools of supra-positive justifications of a “national emergency” that were created in the process were undoubtedly useful in the transition to the National Socialist system. And when it was said in the
Reichsgesetzblatt
of 1934 that the Röhm murders had been legal as a form of “national self-defense,” constitutional theory had neither the will nor the actual ability to lodge a collective protest.
²¹

More important than these examples, however, are the reasons that led German constitutional theorists to abandon the republic so easily, to consider the
Rechtsstaat
something that could be so readily dispensed with, and to elevate the executive in such a metaphysical way. In part they are identical with the known reasons for the failure of the republic as such; after all, constitutional theory is not a separate province of intellectual life. But there are a few specific characteristics of German state thinking that imparted an added impulse to the general trend.

In Germany, thinking about the state has always been done from the perspective of administration. The great theorists (V. L. von Seckendorff, G. H. G. von Justi, R. von Mohl, L. von Stein, and R. von Gneist) devoted themselves to administration, and we look in vain for classic state thinkers like Hobbes and Locke, Montesquieu and Rousseau. As a result, in Germany the executive got a traditional head start over the other branches of government. Parliamentarianism arrived late, and it has retained certain weaknesses down to this day. The hour of need is in Germany the hour of the executive. The Bismarckian constitutional conflict (1862–1866) showed this just as clearly as did Bismarck’s later toying with and threats of a “plan for a coup d’état.” It is also revealed by the way in which Article 48 of the Weimar Constitution
was handled. In crises, parliamentary formulation of political objectives and judicial control are seen as inconvenient obstacles.

I consider this intellectual tradition—fundamentally different from that in England, for instance—a crucial factor in assessing German domestic politics in the twentieth century. A second essential characteristic of German state thinking is, in my view, its strong metaphysical foundation. The differences with Western rationalism, utilitarianism, and pragmatism reach far back into history. In Germany we find a decidedly Christian understanding of officeholding and service, a relationship to authority shaped by ethics. In the philosophy of German idealism this idea was retained in a secular form, and in the philosophical discussion of the 1920s we encounter the same problem: on one side, tendencies toward a relativism of values, liberalism, and parliamentary democracy, especially in Hans Kelsen; on the other side, idealistic philosophy (with its variants guided by Fichte, Schelling, and Hegel) with its belief in “eternal truths” and in the state as a “moral idea.” From this point of view the state is not an emergency shelter created by human beings, not a rational contract, but a supra-human being in service to which the individual finds fulfillment.

Kelsen felt very clearly how the two sides were weighted. In 1932 he noted with resignation that

today it goes without saying . . . in the circles of constitutional theorists and sociologists to speak of democracy only with words of contempt. It is considered modern to hail dictatorship—directly or indirectly—as the dawn of a new era. And this change in “scientific” attitude goes hand in hand with a switch in philosophical positions: away from the clarity of empirical-critical rationalism, the spiritual home of democracy, now decried as shallowness, and back to the darkness of metaphysics, which is taken for profundity, to the cult of nebulous irrationalism, this very atmosphere in which since time immemorial the various forms of autocracy have flourished best. That is the slogan of today.
²²

IV.
Autocracy was indeed at the door. The suspension of the most important basic rights,
²³
a large wave of arrests and emigration, the Enabling Act,
²⁴
and the breakup of the parties and unions: in the space of only a few weeks, from January to May 1933, all this swept over a Germany that was dazed in part by jubilation and in part by fear.

Soon it became clear that for the second time in the twentieth century German constitutional law had been deprived of its foundation in positive law. The wide-ranging discussion about the continuing validity of the Weimar Constitution after 1933
²⁵
revolved around a
pseudo-problem and concealed the true positional struggles. In actuality, now that there was no doubt that parliamentary democracy and the “so-called civil constitutional state”
(bürgerlicher Rechtsstaat)
, to use the words of Carl Schmitt, no longer existed, political life found itself at square one. For instance, in 1933 Ulrich Scheuner said that “numerous concepts and principles of the earlier period, the right of parliaments and the parties, the principle of separation of powers, the idea of basic rights, and so forth, have been stripped of their meaning by the new organization.”
²⁶
Not only that, it was unclear, and became ever more so, whether it would even be possible to arrive at a consolidated state of political life that would be amenable to legal treatment. Constitutional theorists became increasingly aware that general constitutional theory and constitutional law now dealt only with fragments of their former subject matter and for the rest were confronted with an amorphous exercise of power devoid of rules. As basic constitutional norms turned into something arbitrary, there seemed to be less point in dealing with them in a scientific manner. The National Socialist camp had derisive comments about this development: “Just as the old state will not return, the old constitutional theory will cease to have any meaning. It is equally useless, however, to write learned treatises about the nature of the new state—here, too, the pens are scribbling in vain. Today only one person knows what the new structure of the state will look like after ten years, the Führer, and he won’t allow himself to be influenced in this knowledge by any writers, no matter how learned.”
²⁷

Thus, the majority of constitutional theorists were confronted in the spring of 1933 with the question of how to respond to these developments.
²⁸
Only a few, among them Otto Koellreutter, had already declared themselves in favor of National Socialism. Now the others had to put their cards on the table. Emigration was unavoidable for democrats or Social Democrats like Kelsen and Heller, especially since both were of Jewish descent. Heller died in Madrid shortly after leaving Germany. Kelsen, vilified in Prague in 1936 by nationalistic students of his own student Fritz Sander, escaped to Geneva. Erich Kaufmann withdrew to Berlin and did not emigrate until 1938; Gerhard Leibholz and Hans Nawiasky left the same year. A politically upright young scholar like Ernst Friesenhahn broke with his teacher Carl Schmitt, resisted later blandishments, and existed in a quiet corner, so to speak, with a lectureship and a law practice. Representatives of the older generation, such as Gerhard Anschütz, Conrad Bornhak, Rudolf von Laun, Richard Schmidt, Paul Schoen, Rudolf Smend, Richard
Thoma, and Heinrich Triepel, opted for retirement (if they were not already retired). Some kept to themselves indignantly, others resignedly: They published little or turned to harmless topics, often historical topics or ones dealing with international law.

Schmitt and Koellreutter were the most prominent among the renowned scholars who professed themselves followers of National Socialism. At first the new rulers noted Schmitt’s National Socialist conversion
²⁹
with considerable gratitude: after all, he was a “leading figure,” a sharp critic of parliamentarianism, an advocate of the dictatorship of the Reich President, of the sovereign “order-creating decision,” and of the existential distinction between friend and foe. Hermann Göring rewarded him with the title of a Prussian councilor of state
(Staatsrat)
. There followed membership in the Academy for German Law, appointment as director of the University Teachers’ Group of the League of National Socialist German Jurists, and the job of editor of the leading law journal, the
Deutsche Juristen-Zeitung
. Schmitt in turn expressed his thanks with the infamous article “Der Führer schützt das Recht” (The Führer protects the law),
³⁰
which gave constitutional absolution to the Röhm murders. Later, when he was in trouble, he also engaged in anti-Semitic propaganda, which will forever cast a dark shadow on his name.
³¹

Koellreutter, clearly inferior to Carl Schmitt in intellectual agility and eloquence, had been a supporter of National Socialism from the elections in September 1930. He was among those German Nationals who were now looking forward to the establishment of the “national constitutional state.” It was with this in mind that he wrote, as early as 1933, the first National Socialist constitutional theory, an outline of National Socialist constitutional law in 1935, and a textbook of administrative law in 1936.
³²

However, the true core of the new National Socialist theory of constitutional and administrative law was formed by the group of professors who in 1933 almost simultaneously moved into professorial positions that had become vacant and who were initially clear supporters of the new system. It included Ernst Rudolf Huber
³³
and Ernst Forsthoff,
³⁴
Gustav Adolf Walz,
³⁵
Herbert Krüger,
³⁶
Theodor Maunz,
³⁷
and at the fringes—even if always cautiously tempered—Ulrich Scheuner.
³⁸
Paul Ritterbusch
³⁹
and Reinhard Höhn
⁴⁰
soon made a name for themselves as decidedly radical National Socialists. Höhn had come from the Order of Young Germans and now switched over to the SS. There were hardly any authors who came directly from work in the party and could have made themselves heard. At most one could mention
Helmut Nicolai,
⁴¹
author of
Rassengesetzliche Rechtslehre
(Legal theory of racial laws) and a booklet entitled
Der Staat im nationalsozialistischen Weltbild
(The state in National Socialist ideology [1933]).