Popular Sovereignty and the Crisis of German Constitutional Law: The Theory and Practice of Weimar Constitutionalism - Softcover

Caldwell, Peter C.

Softcover

ISBN 10: 0822319888 ISBN 13: 9780822319887

Verlag: Duke University Press, 1997

Inhaltsangabe

Popular Sovereignty and the Crisis of German Constitutional Law is a historical analysis of competing doctrines of constitutional law during the Weimar Republic. It chronicles the creation of a new constitutional jurisprudence both adequate to the needs of a modern welfare state and based on the principle of popular sovereignty. Peter C. Caldwell explores the legal nature of democracy as debated by Weimar's political theorists and constitutional lawyers. Laying the groundwork for questions about constitutional law in today's Federal Republic, this book draws clear and insightful distinctions between strands of positivist and anti-positivist legal thought, and examines their implications for legal and political theory. Caldwell makes accessible the rich literature in German constitutional thought of the Weimar period, most of which has been unavailable in English until now. On the liberal left, Hugo Preuss and Hans Kelsen defended a concept of democracy that made the constitution sovereign and, in a way, created the "Volk" through constitutional procedure. On the right, Carl Schmitt argued for a substantial notion of the "Volk" that could overrule constitutional procedure in a state of emergency. Rudolf Smend and Heinrich Triepel located in the constitution a set of inviolable values of the political community, while Hermann Heller saw in it a guarantee of substantial social equality. Drawing on the work of these major players from the 1920s, Caldwell reveals the various facets of the impassioned constitutional struggles that permeated German legal and political culture during the Weimar Republic.

Über diesen Titel

Über die Autorin bzw. den Autor

Peter C. Caldwell is Associate Professor of History and German Studies at Rice University.

Von der hinteren Coverseite

"An outstanding contribution to the literature on 20th-century Germany and its political/legal theory."--Ellen Kennedy, University of Pennsylvania

Auszug. © Genehmigter Nachdruck. Alle Rechte vorbehalten.

Popular Sovereignty and the Crisis of German Constitutional Law

The Theory & Practice of Weimar Constitutionalism

By Peter C. Caldwell

Duke University Press

Copyright © 1997 Duke University Press
All rights reserved.

ISBN: 978-0-8223-1988-7

Contents

Preface, 
Acknowledgments, 
The Power of the People and the Rule of Law, 
The Problem of Constitutional Democracy in the Weimar Republic, 
[1] The Will of the State and the Redemption of the German Nation, 
[2] The Purity of Law and Military Dictatorship, 
[3] The Radicalism of Constitutional Revolution, 
[4] The Paradoxical Foundations of Constitutional Democracy, 
[5] Constitutional Practice and the Immanence of Democratic Sovereignty, 
[6] Equality, Property, Emergency, 
Conclusion, 
The Crisis of Constitutional Democracy, 
Notes, 
Bibliography, 
Index, 

CHAPTER 1

THE WILL OF THE STATE AND THE REDEMPTION OF THE GERMAN NATION

Legal Positivism and Constitutional Monorchism in the German Empire

In 1871, in the wake of the Wars of Unification, Germany was unified within a constitutional framework. Otto von Bismarck's foreign policy satisfied nationalistic aims. And liberal majorities in the new national assembly, the Reichstag, and in the individual state assemblies ensured that the new system would fulfill some of the constitutional aims of conservative liberals as well. National Liberalism affirmed the new constitutional monarchy. National Liberals worked closely with the government in the early years of the empire to create the laws and institutions of the new state, from the national court system of the 1870s and the Civil Code of 1900 to statutes limiting "ultramontane" and "internationalist" influence in the 1870s and 1880s.

In this context a new, formal approach to law came to dominate constitutional jurisprudence in the German Empire. In the first edition of his commentary on German state law, Paul Laband, the leading representative of the school, declared that the 1871 Imperial Constitution marked the "redemption" of the German people from its division. For Laband, "redemption" meant the fulfillment of a sacred history: Germany's struggle for existence was resolved. Both he (unaffiliated with a party) and the National Liberals found the Bismarckian system open to centralizing and modernizing reforms. Labandian legal positivism took as its task the description of a constitutional system. And what Laband described, he affirmed. His method and his handbook set the standards for work on constitutional law in the empire.

The affirmative approach to the Bismarckian system expressed itself in the "neutral" language of science. Both Laband's legal positivism and its alleged opponent in the empire, the "organic" state theory of Otto von Gierke (1841-1921), were part of a more general trend within the humanities to emulate natural scientific methods in the nineteenth century. Both schools rejected notions that the law had a transcendent origin: the positivist school insofar as it saw all law as posited by the worldly and human state, and the organic school insofar as it derived laws from the worldly "spirit of the nation" (Volksgeist) in its natural, historical development. At the same time, both positivist and organic theories—in Germany as in other European states in the nineteenth century—assumed that the law comprised a unified system or even a real subject. The positivists assumed that all statutes and ordinances were the expression of a unified "state's will"; the organic theorists presupposed the natural unity of the people or nation (Volk) from which law derived. The two opposing theories of law in the empire shared an anthropomorphism of the state.

Perhaps no one offers better evidence of the connection between the organic and positivist traditions than Laband's forerunner, Carl Friedrich von Gerber (1823-1891). Gerber had become famous before 1848 as a compiler and synthesizer of the many systems of private law in the German-speaking lands. Unlike the historical school of legal scholarship, which sought to derive the validity of a law from its historical origins, Gerber built his system on existing law. In order to synthesize the law (contract law, family law, etc.) of the German states, however, he had to assume an underlying, quasi-organic unity of German law. Gerber extended his work to the realm of state law after the Revolution of 1848, when the issue of German unity had been placed on the table. He attempted to describe German state law using the same method of compiling and synthesizing the law of the many German states. Germany had ceased to exist as a public law entity after the fall of the Holy Roman Empire in 1806. Therefore, Gerber had to presuppose an underlying unity of the legal systems. But he excluded that presupposition of organic unity in the dogmatic, systematic exposition of German state law itself.

Paul Laband applied Gerber's approach to law to the new German state coming into being between 1866 and 1871. Like Gerber, he presupposed an organic connection between state and nation. The statutes and ordinances of the empire expressed the "state's will," which he argued was also the will of society. But unlike Gerber, and to the chagrin of scholars in the organic tradition such as Otto von Gierke, Laband never explicitly theorized how the statutes and ordinances he studied related to the social "organism." Prussia's victory over Austria in 1866 had paved the way for the 1867 Constitution of the North German Confederation, the forerunner of the 1871 Imperial Constitution. Laband simply assumed that all laws based on the 1871 Constitution were valid. Because of Bismarck's success in forging a new state, Laband was able to draw a far stricter line than Gerber had between legal scholarship and politics, history, and sociology.

Born in 1838 to a Jewish professional family in Breslau, Laband converted to Protestantism and entered into a professional career in civil law in the 1860s. In 1870 he turned from his earlier work on the history of Roman civil law to address legal aspects of the constitutional crisis that had raged from 1862 to 1866 in Prussia. His essay on the subject quickly earned Laband praise from the most important law journals and jurists of the time. It followed strict, formal rules of exegesis and exposition and excluded all "politics" in approaching the central problem of the new constitutional system: the requirement that the budget be approved by both monarch and popular assembly to become a valid statute. His next major work, the monumental State Law of the German Empire (1st ed., 1876-82; 5th ed., 1911-13), set out in systematic fashion the entire system of state law of the German Empire. Already by 1872 Laband had become a professor of public law at Strasbourg and a state adviser on legal matters. His State Law was the standard work to which other scholars and even politicians had to refer. Laband was also a co-founder and coeditor of the most important journals of public law in the empire. He died in March 1918, his life as a jurist of state law thus coinciding with the constitutional life of his object, the German Empire.

Laband was not given to long reflections on method, which may help to explain his popularity among practical-minded lawyers, judges, and administrators. His brief statements on method were included in the forewords to the first and second editions of State Law. First, he claimed that the jurist had at his disposal a series of superhistorical concepts...

Details zur Ausgabe

• Verlag: Duke University Press
• Erscheinungsdatum: 1997
• Sprache: Englisch
• ISBN 10: 0822319888
• ISBN 13: 9780822319887
• Einband: Taschenbuch
• Anzahl der Seiten: 318
• Kontakt zum Hersteller: Mare Nostrum Group B.V.; gpsr@mare-nostrum.co.uk; ; Doelen 72; Breda; 4831 GR; Niederlande