The Politics of Law in Weimar Germany
Kennedy, Ellen, Texas Law Review
POPULAR SOVEREIGNTY AND THE CRISIS OF GERMAN CONSTITUTIONAL LAW: THE THEORY & PRACTICE OF WEIMAR CONSTITUTIONALISM. By Peter C. Caldwell.^ Durham: Duke University Press, 1997. Pp. xiv, 300. $49.95 (cloth); $17.95 (paper).^^
LEGALITY & LEGITIMACY: CARL SCHMITT, HANS KELSEN AND HERMANN HELLER IN WEIMAR. By David Dyzenhaus.ff Oxford: Clarendon Press, 1997. Pp. xiv, 283. $75.0044
Hard cases make bad law but great political theory. The books reviewed here concern a notoriously hard case argued in the final months of the Weimar Republic. Prussia v. Reich1 turned on the constitutionality of President von Hindenburg's use of emergency powers against Prussia in July 1932 under Article 48. That provision of the Weimar Constitution specified two emergency circumstances: when a state could not fulfill its obligations under Reich (Federal) law or the constitution, or when public safety and order are "manifestly disturbed. "2 In those circumstances, the President could take "such measures as are necessary to restore public safety and order."3 Article 48 specifically authorized the use of armed force and suspension of individual rights such as free movement, privacy of post, telephone and telegraph, free speech, freedom of assembly, and security of person, dwelling, and effects.4 The environment in which the Reich acted against Prussia was politically charged. The largest of the German states had enacted a series of laws banning political demonstrations and the wearing of political uniforms, measures intended to calm the atmosphere of civil unrest fed by Communist and Nazi agitators in Prussia.5 At the urging of his advisors, Hindenburg replaced the elected government of Prussia, the most vigorously anti-Nazi in Germany, with Commissars of the right-national Reich government under Franz von Papen.6 Both the Prussian and the Reich government claimed to be acting in the interests of law and order. One side invoked Article 48 to justify its action; the other denied the grounds for intervention.
As in any great case, the facts were open to more than one interpretation. Peter Caldwell's masterful study of German constitutional law and theory between 1919 and 1933 identifies the origins of the conflict between Prussia and the Reich in the preceding regime, the German Reich (1871-1918). Caldwell's analysis of legal positivism and constitutional monarchy in the Reich of 1871 is the best account in English since Rupert Emerson's State and Sovereignty in Modern Germany.7 The foundation of the conflict over Article 48, Caldwell's first chapter suggests, can be traced back to nineteenth-century legal positivism and the claim of its foremost representative, Paul Laband, to have redeemed "the German people from its division"8 by excluding anything "non-scientific." "Laband hoped . . . that he could find a value-free, logical method of ordering legal norms and explaining their 'positive' true content. His lifelong goal was the exclusion of politics, or 'caprice' (words Laband used as synonyms), dilettantism, and political journalism from legal science. "9
Germany after 1871 was an Empire and a federation, and Laband's chief difficulty was how to reconcile the centrifugal impulse of federalism with the political development of a centralized state. Contemporary discourse phrased that issue as the problem of sovereignty: Where did the final decision-making authority lie? Was Germany a confederation or a federation? The United States, having fought a civil war over that very issue in the decade before, was an obvious case for comparison during the first years of the Empire; many German jurists looked to America for help in interpreting their new constitution. John C. Calhoun, The Federalist Papers, and Abraham Lincoln were all cited in an attempt to sort out the relationship between the German states and the central government.10 Laband rejected that approach, suggesting instead an analogy between state law and private law in which "the state" was a legal person. …