It has been observed that with the fall of the German Empire the doctrine underpinning the German state disappeared because the kaiser represented the German "imperium." From its foundation in 1871, Germany had recognized in the Crown the concrete foundation of state authority. Paul Laband, in the first volume of his Das Staatsrecht des deutschen Reiches [The Public Law of the German Empire] ( 1876-1882), pointed to the imperial constitution as the legal basis of the Reich; the state as a juridical person had behind it the physical person of the emperor, who, in his turn, represented the German people. In this way state power operated through the kaiser and the state apparatus he directed. In the postwar political context, which legal authority was capable of restoring moral force to the state, in whose name Bismarck had given national unity to Germany?
Many observers believed that Parliament could become the concrete expression of the state's organic unity because it represented the people and expressed the two fundamental functions of political life--the legislative and the executive. If the old political doctrine had justified the kaiser's monarchical government, according to jurists such as Hugo Preuss and Hans Kelsen, the new republican state had to find its juridical reason for existing in Parliament.
Unfortunately for this theory, Parliament--with its shifting majorities, its unstable changes, the alterations caused by elections--did not appear able to lend authority to the state and constitute the foundation of its sovereignty. Moreover, the legal order lost at least part of its legitimacy because of its dependence on the legislative choices of an uncertain parliamentary majority. Criticisms such as these were voiced against Kelsen