CARL SCHMITT

STATE, M O VEM ENT, PEO PLETHE TRIADIC STRUCTURE OF

THE POLITICAL U NITY

(1933)

THE QUESTION OF LEGAUTV(1950)

Edited, Translated and with a Preface by SIMONA D R A G H ia, Ph.D.

PLUTARCH PRESSC orvallis , o r ,

This selection in English translation first published in the United States

by P LUTAR CH PRESS. Corvallis OR, in 2 0 0 1 .

Th e first text, originally published in Germany as S T A A T ,

BEW EG UN G. VOLK: die Dreigliederung der politischen Einheit,

von Staatsrat Prof. Dr. Carl Schm itt. Copyright in the German

text © 1 9 3 3 by Hanseatische Verlagsanstalt, Hamburg

The second text, Das Problem der Legalität, published as part of

VERFASSUNGSRECHTLICH E A U F S Ä TZ E AU S DEN JAHREN

1 9 2 4 -1 9 5 4 , von Carl Schmitt.

Copyright in the German text © 1 9 5 8 by Duncker & Humblot,

Berlin

Copyright in these English trartslations. Preface, Notes and

In d e x ® 200 1 by Simona Oraghici

All rights reserved.

For information, address the publisher:

P LU TA R C H PRESS

P.O. Box 1 9 5 , Corvallis OR 9 7 3 3 9 -0 1 9 5

Library o f Congress C ataloging-in-Publication Data

Schm itt. Carl. 1888-[Staat. Bew egung, V oik. English]State, m ovem ent, p e ^ l e ; the triadic structure o f the political u n ity ; The question o f

legality / C arl S c h m itt; edited, translated, and w ith a preface by Sim ona Draghici. p. cm.

Includes bibliographical references and index.ISBN 0-943045-I8-5 (alk. paper)1. G erm any—Politics and govenunent—1918-1933.2. G erm any—Politics and

g o v e rn m e n t-1933-1945. 1. D raghici. Simona, 1937-11. Schmitt, Carl, 1888- Problem der Legalität. English III. T itle: Q uestion o f legality. IV. Title.

JN 3952 .S33 2001 9 4 3 .0 8 6 -tlc2 l

2001032714

Manufactured in the United States of America

Book design and cover by JA Y

TABLE OF CONTENTS

PREFACE by Simona Draghici VI

BibUographical Note X X V

STATE, MOVEMENT, PEOPLE:THE TRIADIC STRUCTURE OF THE POLITICAL UNITY

Chapter I : The Present ConstitutionalSituation 3

Chapter I I : The Triadic Structure of thePolitical Unity 11

Chapter III: The Binary State Construction of Liberal Democracy and the German State of the Civil Service 24

Chapter IV: Leadership and Ethnic Identity as Basic Concepts of the Nationai- Sodalist Law 36

THE QUESTION OF LEGAUTY 55

NOTES 65

INDEX 81

P R E F A C E

It is said that Plato's dialogue THE STATESM AN is fir s t and forem ost a logical exercise in the art o f definition through differentiation meant to improve the pow er o f reasoning. So, too, Carl Schm itt's STATE, MOVEMENT. PEOPLE m ay be said to be fir s t and forem ost an exercise in the technique o f mass persuasion. I t was meant to facilitate the understanding and the retention by ail and sundry o f the social and poiiticai significance o f som e o f the acts per­form ed and decisions taken particularly with regard to the legislative and the ;ud idai spheres in the life o f Germany between 30 January and 1 December 1933, a period also known as the legal revolution, or rather, o f two legal revo­lutions, as Carl Schm itt h im self would say fo r ty - fiv e years later. The technical formula behind this essay m ay be described briefly as: a. continuous repetition to reach saturation, past the audience's ejcpected ceiling o f endur­ance; b. simple wording so that the ordinary man (Goehheis preferred the term 'woodcutter') couid understand, and yet, c. the content should be interesting enough so as to make everybody else give it careful attention. Whereas, in the end. Plato could no t help turning the exerdse into an opportunity to reflect on the nature o f the statesman as an ideal type, Carl Schm itt in turn could no t help making the m ost o f the third aspect o f the formula o f persuasion in an attem pt to dispel illusions and draw distinctions as clearly as the circumstances ahowed.

The continuous interest in this writing o f his, the longest in that year, is sustained by his conceptual analysis o f the transition from iiherai democracy to totalitarianism under the conditions o f legality, and in which the legal state, o r as we p refer to call it nowadays, 'the rule o f law', is the intermediate fo rm . The latter, dominated by the basic principle o f security, calculability and measurability, trans­fo rm s all notions, concepts and institutions, and I quote, 'under the pretex t o f working out Jegal concepts within normativeJy predetermined abstractions'. Thus, Carl Schm ittMO TTO:' The way of t h e new m a n k in d goes f ro m h u m an i ty th ro u g h na t iona li ty to b e s t ia l i ty . ' - P. G r i l lp a r z e r ( 1 7 9 1 - 1 8 7 2 )

VI

goes on, 'every obligation in order to become a legal duty m ust have a content that is normatively measuraWe and subject to verification by a judge', (p .39). One may easily recognize here the aspirations o f the European Union, to say nothing o f the basic principle o f the constitutional governance o f the United States. (Remember the Year 2000 Presidential Elections?) I t is a concern that is carried over into the 21st century; the so-called information technology and its corollary, the free-m arket globalization, are the ostensible factors that press it on in this century, with the alacrity o f the innocent and seif-righteous. I t is in this spirit that earlier in the year 2000, in THE FINANCIAL TIMES, one o f the Young C yber-Turks was underlining the dichotomy, which he tried to convince whomever would heed him that existed between the permanent revolution o f radical change, and which fo r him meant freedom , progress and democracy, on the one hand, and on the other, the stagnation and the despondency which he attributed to and equated with authoritarianism and autocracy. There, it was someone trying to prom ote his global internet business, and create optimum conditions fo r its acceptance, by juggling with normatively predetermined abstractions and present them as justificatory legal concepts; in other words, one was treated with advertizing as ideology. On the other side, the nostalgia fo r totalitarianism finds expression in the complaints about the absence o f a definite goal that would mobilize energies and give them direction. Such complaints coming from a German foreign minister, an ethnic German bom in p o s t-W W lI Hungary, o r the President o f a state like South Africa, heave many a sigh o f revolutionary romantic regret, and even make cabinet m inisters hang their heads in embarrassement.

PREFACE

Although by December 1933, Carl Schm itt had been holding the highest functions which he would ever enjoy as a ju rist under Hitler's regime, neither then nor later did be become 'the crown ju rist o f the Third Reich', as his form er disciple Waldemar Gurian was to call him in 1934, from the safety o f Switzerland. (Ironically, his only contribution to National Socialism, substantive though unintentionai, was to

VII

PREFACE

have pointed the way by which any mass m ovem ent with enough s trong will and determination could come into pow er constitutionally in the Weimar Republic, and change its structure altogether. He did that in his 1928 book, VERPASSUNGSLEHRE fConstitutionai Theory] by showing the weaknesses o f the Weimar Constitution, and in particu­lar o f Article 76, which allowed a tem porary tw o-tiurds m ajority in parliament 'to revise the constitution'.) I t was Hans FranJc, Hitler's personal lawyer and fu ture governor o f Poland, who was imagining that role fo r him self as he dreamt o f compiling fo r Hitler a code o f laws after the fashion o f the one produced under the orders and with the contribution o f N ^ o le o n , not realizing that Hitler needed no code o f laws, since he h im self was the law in virtue o f the dictum that m ight makes right. Eventually, tired o f FranJc's hallucinations, Hitler would dispatch him to Cracow, in that impossible job o f governor, under the permanent challenge o f the SS.

In the Introduction to THB IDEA OF REPRESENTA­TION (W ashington, DC, 1988), I said that Carl Schm itt m ight be counted among those who had thought that they could influence H itler's thinking in the direction o f a con­structive solution o f Germany's intem ai crisis (p .11). A closer reading o f som e o f his writings o f that period has since convinced me o f the contrary, namely, that from the very beginning he had been aware o f the nefarious role Hitler would play in Germany's history i f roped in, but considered i t to be lim ited to Hitler's lifespan, quite cor­rectly as events would c o n ftm . Indeed, on a persona! level, Carl Schm itt had the choice either to emigrate or go into internal exile, or stay on and make the m ost o f his professorship as long as possible, treading on eggs and living with Damocles' sw ord hanging over him unreJenting- ly. He was fo r certain the adventurer he later claimed to have been, confronted by the unpredictability o f the new rule and faced with the chance o f experiencing at fir s t hand the dismantling o f a social and poUtical order o f which he him self had been a p a r t. He tooJc that chance, and in the bargain, managed to survive it, without in the interval harming anybody in particular but himself. A s a m atter o f fact, the unpredictability o f political life, and the social instability which was feeding it, had made adventurism a

VIII

tra it o f everyday life in Europe from the time o f W W I, i f not earlier. (On the other hand, in America, where it had been endemic from the beginnings o f its European coloniza­tion, adventurism was ju st normal, and so it was not experienced as a sym ptom o f the unravelling social fabric.)

Born in 1888, in a more stable age o f the Second Reich, Carl Schm itt started in life as a civil servant o f that Empire in 1910, after he bad received his law degree from the C/hiversity o f Strassburg. Then, during the 1914 war, and m ore exactly in 1916, he earned a doctoral degree from the same university that enabled him to turn to teaching instead. The period o f disintegration o f the federal structure o f Germany that made itse lf fe lt even before the end o f the Great War offered him unlimited opportunities, in his new position, to contribute to the e ffo rts o f institutional recon­struction. He joined in the long-standing battle between jurists in Germany, which coincided with the rapid develop­m ent o f capitalism and industrialization in the conditions o f a multitude o f sovereign states o f various sizes, som e o f which had managed to expand at the expense o f o thers in the aftermath o f victorious military alliances. That battle rehected conflicting attem pts to produce corresponding institutions that would m ost satisfactorily reflect the policy o f federalization under Prussian hegemony, given the fact that as a result o f alliances and annexations, P russia had become the largest o f the German monarchies after the Austrian Empire in the second half o f the 19th century. The conflict between tradition and m odernity, between the morality o f the Enlightenment, with its human dignity and social justice, and the morality o f business, and in Jegal terms, between substantive justice and form al legality, further split the lawyers. Brought up in the welfare ideology o f the monarchical bureaucracy, Carl Schm itt came to experience the institutional crisis that led to the collapse o f the imperial fram ework, and in those conditions, declared him self in favour o f the reduction to a m inim um o f legal procedures in the cause o f a decision (i.e. settlem ent) that was both expeditious and better adapted to the concrete case, through concrete evaluation o f circumstances, as against the application o f general norm s to particular cases. For him the foundation o f the Jaw was sociological, and given the abnormal conditions o f the times, that position

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IX

amply allowed him to perceive the inconsistency in the coexistence o f the custom ary law, historicist and half- mystical. battered by the positiv ists’ ram, with the juris­prudence o f interests, characteristic o f the parliamentarian legislative state. Against the disruptive tendencies at work in his country's build-up, and which affected the very notions o f law and justice, Carl Schm itt iooJced back to the endeavours o f the German reform ers at the turn o f the 19th century, when the French military advancement and occupation brought about an unprecedented, unprompted political unity o f all social groups, a phenomenon that had a short-lived recurrence in the firs t few m onths o f what was to become W W I. He studied the theories o f a later reform ist, Lorenz von Stein, and the natural law o f the Catholic scholars, in his search o f objective standards and non-form al criteria that could serve as source fo r judicial decisions, a basis fo r poUtical unity, and for a comprehen­sive rational legislation. A t the same time, it was his reahsm that made Carl Schm itt aware o f the subversive character o f the amorphous norm s behind pubUc law, the irrational character o f the facts o f life, alongside o f the continuous balancing o f in terests and other phenomena that turn law into a continuously transformable technical apparatus, devoid o f sacredness o f content, and focussing on those ends that are inherent in or favoured by certain form s o f political authority. A t the same time, it m ay be said that he took advantage o f the growth o f various currents in the rationalization o f legal thinking and the flights into the irrational, a consequence o f the increasing reification o f the legal technique, which paraUeled the irrationalization o f religion and the demands o f popular justice. He made a career out o f combating them during the Weimar RepubUc.

Carl Schm itt was not a democrat because for him the law in a democracy was the ephemeral will o f the people as it made itse lf manifest at a given moment, or in his own words, it is the will o f a majority at a certain m om ent - lex est, quod popuius jubet (LEG ALITÄT UND LEGITIMITÄT, 1932, p .27). Furthermore, it was his conviction that no democracy m ight survive which was not grounded in the prem ise that the people was good and its will was enough motivation: it suffices that the people wiUs (il su ffit qu'il

PREFACE

veuC), and also that parliamentarian democracy in order to be genuine needed to reflect in its laws the will o f ail the people as a whole. That also maJces obvious why he couid no t be a parliamentarianist in the conditions o f the pluralism o f antagonistic political organizations vying to optimize their advantages at the expense o f the others. On the other hand, he had already said what he wanted to say about political leadership in his writing o f 1931, DER HOTTER DER VERFASSUNG [The Defender o f the Consti­tution], where the p leb isd tary Reich president was presented as the p ivot o f the country's political unity when parliament had fallen victim to in ter-party factionalism and conflicts o f interest, and lost its JegisJative power, although he had never imagined Hitler to fill that role.

So, from S trassburg to Munich, to Berlin, to Greis- waid, and then to Bonn University (1922-1928), Carl Schm itt returned to Berlin where he taught at the Graduate School o f Business Administration [Handels HochschuieJ between 1929 and 1932. He won his notoriety as an in ter- national authority on constitutional law with the publication o f his opus magnum, VERFASSUNGSLBHRE, in 1928. It was in that quality o f specialist in constitutional law that he appeared as a legal counsel fo r the Reich in the trial o f Prussia vs. the Reich, before the Federal High Court in Leipzig, in the autumn o f 1932. In the same year, the University o f Cologne made him an o ffer fo r a p ro fessor­ship a t that institution, starting from the spring term 1933, which o ffer Hans Kelsen, a member o f the faculty there, hoped he, Schmitt, would accept. (If, in the present essay, Kelsen is mentioned by name, it is because he had already managed to be out o f danger, so to speak, by m oving to Switzerland. On the o ther hand, their sw ord-crossing in matters related to the nature o f law and o f justice was much older than the advent o f Hitler, and had been well known in the Juridical drcJes. I t had nothing to do with the advance o f the National-Socialist movement, which after all, would take positivism to new heights.) I suspect that at the time Carl Schm itt found the move to Cologne salutary, as it took him away from the wheeling-and-dealing at the centre o f political power in Berlin where not long before he had favoured the suppression o f the terrorist form ations and a military take-over.

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XI

He was almost fo r ty -fiv e years old, and already counted a iong and respectable list o f publications ranging from belles-lettres and political philosophy to jurispru­dence, when on his way to Rome where he intended to spend Easter 1933, an official invitation from the Reich Vice-Chancellor von Papen reached him in Munich, instructing him to return to Berlin where his expertise had been deemed useful in the formulation o f the governm ent legislation concerning the relations between the states (Länder) and the Reich. Indeed, none o f his ideas did ultimately find their way in Frick's legislation: but bis name was p u t in the records to lend respectability to the measures o f integration and centralization that in fact had been worked out in the inner sanctum o f the Chancellery and the M inistry o f the Interior. The humiliation m ust have been so complete that .he never admitted it openly. Seem­ingly. it increased his animosity towards von Papen who had involved him in the affair. A s a matter o f fact, von Papen, alongside Schleicher, whose adviser he, Carl Schmitt, had been until recently, and Hindenburg are the three peeves in the jpresent essays.They are far from being forgiven fo r their political weakness and their self-assumed roles in bringing Hitler to power. On the other hand, another three people seem to have been instrum entai in his re tu rn to Berlin as full professor o f public law, this time at Berlin University, only after one term at Cologne; in his appointment to the Prussian State Council in July o f the same year, and in his nomination to the newly founded Akademie fü r Deutsches Becht, to the editorial board o f the organ o f the N ational-Sodalist ju ris ts DAS DEUTSCHE RECHT [German Law], and at the head o f higher education instructors' section o f the National-Socialist Federation o f German Jurists, in the autumn o f 1933. The three people were Johannes Popitz, the Prussian M inister o f Finance who had kept his office from the time of the Weimar Republic and would hold it honorifically until his arrest in July 1944 in connection with the underground resistance, and who had been a friend and colleague o f Carl Schm itt's from earlier days; Hans Frank, State Secretary fo r Justice in the Third Reich, who had a sincere admiration fo r Schm itt's intellect and scholarship from his years as a law student in Munich, and finally, Hermann Göring, Minister President o f Prussia.

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XII

who liked to collect and cultivate personalities fo r no other reason than to reinforce his own sense and image o f respectability. The role o f Martin Heidegger, then Rector o f Freiburg University, on the other hand, was m erely episodic, urging Carl Schm itt to join the NSDAP by sending him a letter in that sense from Freiburg on 22 A pril 1933. On M ay Day 1933, Carl Schm itt took his application to the local NSDAP quarters in Cologne. That gesture had only an administrative value, in fact, as it came after the 7 April law fo r the purging o f the dv ii service, and in Germany, university professors were civil servants. Later, in 1937, when he received his card, he found out that he had become the 2,098,860th m em ber o f the National-Socialist Party. (Goebbels had been making fun o f all those who joined the NSDAP after Hitler had been reconfum ed in pow er in March 1933, calling them 'the fallen soldiers o f the m onth o f M arch' [die Märzgefallene].) In the long run, the connection with Göring proved the m ost valuable when the period o f transition came to an end, and the war-oriented reorganization o f the country became primarily the task o f the SS. Prank took back the Party functions which he had once bestowed on Schm itt, in order to ingratiate h im self with Himmler, but Göring stood his ground and refused to k ick him out o f the State Council and the University. That did n o t mean that he was also exeinpted from surveillance by the Gestapo fo r the rest o f the regime, or at least no t until he was drawn into the Volkssturm and sent to defend Berlin against the Russian onslaught. (It was the Home Guard, made up o f all ablerbodied men between 16 and 60 years o f age, that was organized at the end o f 1944 by Bormann and the Party, as Hitler's last mass levy .) Captured by the Russians, he was released after intensive interrogation: either they were satisfied with Schm itt’s explanation, in the term s o f Melville's s to ry o f BENITO CBRENO, o f his own standing in Nazi Germany, or because he was deemed too old to be taken to Russia as a war prisoner. Nor is it dear until now why in Septem ber 1945, be was arrested by the Americans, had his library confiscated (as potentially incriminating evidence?), and kep t in custody in various prisons fo r the next two years. He kep t those v idssitudes m o stly to himself, and considered them enough paym ent fo r having been an adventurer in the

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PREFACE

Third Reich to turn down the occasion o f eating another humble pie, the additional gratuitious humiliation , that was the process o f 'denazification' carried on by the occupied to placate the occupier.

A ll tex ts written b y people o f independent thinking in the conditions o f any kind o f censorship likely to imperil their lives need to be read at different levels: the m ost superficial, which corresponds to what publicly the particular author is expected to say, or pu t differently, what the others should be made to think that one thinks: then, what one really thinks, although quite often denying it, or even ostensibly affirm ing the contrary, and a third level, where the interlocutor, or the reader, is led to draw the conclusions on his own from the contradictions and the inconsistencies le ft in the text, as well as from oiTussions o r even erroneous references. Training in logical thinking and thorough knowledge o f the conditions in whidi the author produced the particular work become necessary to get a correct reading o f the author's mind. That always remind m e o f F ra Tommaso Campanella, Galileo's great friend, who would often write in the margins o f the poem s he was composing in the dungeons o f the Spanish kings and o f the Roman /nguisition: 'who reads, understands'.

A s far as the main tex t presented here is concerned, its esoterism , so to speak, is unexpectedly thin, revealing a beginner at the game. The subtlety would grow with time, as it m ay be perceived, fo r instance, in his article o f 1938, entitled 'Neutrality According to International Law and National Totality,' (BT, 1999). Notwithstanding, and as already said, the continued interest in the present essays goes beyond their historical mom ent. I t is sustained by Carl Schm itt's continued interest primarily in the legal institu-* tioDs o f liberal democracy, and their transformation in the conditions o f the legal state and o f totalitarianism. Were Hitler and Himmler no t precursors o f present-day genetics, as the alchemists had been o f m odem chemistry? Did not Lenin and Stalin want to transform Russia in the m ost industrially developed country o f the world by emulating their own image o f America, as the present leaders from

XIV

Khrushchyov on have been trying so hard? The 'fall o f the Wall' in 1989 did not p u t an end to the trend, and even Jess reversed it, and some o f the contributing factors are quite new: cybernetics and the so-called 'information revolution', alongside o f the huge, hardly imaginable, amounts o f m oney that are moved round the world; they give it the global dimension o f which Lenin was dreaming. A s monarchies with their paternalism gave way to the nation-state, the protective function went out o f the window to be replaced by the endemic social conflict o f individual freedom, known also as sodai progress or social Darwinism, ciass-struggie and what have you. To deviate internal crises, welfare measures would be taken as paiiatlves, but no serious attempt has ever been made to secure the protection o f the subject: individuai righ ts became an issue fo r the law courts to decide in each particular case. Growth o f population, geographic and sodai m obility and the chronic shortage o f genuine political talent have rendered the protective function unfeasabie in the modern times. Hence individual ingenuity has become the supreme moral value o f existence in the age o f technology which does indeed prom ote the administration o f things, firs t form ulated by Saint-Simon, at the expense o f the governm ent o f people. Totalitarianism, after all is the political end-product o f the perpetual antagonism between technology as a stance and the longing fo r creature com forts in each and everyone, the suicidal induded. A s it eliminates sodai differentiations, it also does away with such notions as subject, person and personality:media com ­mentators, fo r Ínstanos, talk o f 'lives' that are saved and not o f people, that is persons. Furthermore, it reduces the human species to a prim ary, or one m ay ra th er call it, universal status o f biological material fo r the achievement o f rationally followed and calculated ends, among which one should count depopulation. The developments in the spheres o f molecular biology and genetic engineering, the use o f live human cells to activate artifidally made circuits show that the thinking behind them is grounded in this conviction. The advocates o f animal rights bring their contribution to the devaluation o f humankind in the moral sphere and nullify social institutions. Going hand in hand with the continuous improvement o f the arsenal fo r m ass destruc­tion, they all allow fu h scope to the perfectioning o f dreams

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and aspirations that have tormented the luminaries o f the Western world since the 17th century, i f not earlier, and more recently, those o f the other parts o f the world in direct and persistent contact with the West. One may say that it will come to pass, ye t unlike previous dissolutions o f social structures, the one in operation in the name o f technology risks by its globalization to render the planet Earth uninhabitable fo r any fo rm o f life. The moronic dream o f escaping to a friendlier planet in a space machine m ay only be a consolation fo r the dimwits. Although in full swing, this trend is not inevitable, whatever the technolo­gists and the 'virtual reahsts' m ight say in their attem pts to convince the o thers o f the contrary, in the world-wide conridence game that we are all playing.

Taking into consideration the fact that the firs t con­gress o f the National-Socialist jurists had only taken place some three m onths earlier (September 1933), and given the new party functions bestowed on him by Frank, already mentioned, Carl Schm itt was expected not only to indulge the biases o f his new m asters but also to make a more substantial contribution to the cause. A s concerns the form er, he obliged by flattery, neo-romantic flights, curt declarations that discouraged doubt and eliminated argu­mentation, Machiavellian hints and insinuations about the negativity o f cultural differences, o f intellectual occupa­tions and their subversive value, all splattered so awkward­ly that only someone completely devoid o f any sense o f humour could hold them against him. His poUtical incor­rectness, on the o ther hand, looms large in the very title o f the essay: he chose to use the term 'movement', although he was aware that H itler was against it when referring to the NSDAP. On the other hand, i f fla ttery may be taken for an expression o f im potence and inferiority on the part o f the flatterer, though leg-puIUng could not be excluded in this particular case, the fact that Carl Schm itt felt the need o f invoking higher authorities to validate some o f his concepts only points to the precariousness o f his position as theoretician o f the new, changed poUtical conditions. Thus, to prove the correctness o f his idea that the law o f 24 March J933 was in fact the provisional constitution of the Reich, he felt the need to stress that it was shared by a jurist higher up in the Nazi hierarchy, a Secretary o f State

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in the Reich M inistry o f the Interior (p. 6n). Apparently, that became necessary in order to countervail the criticism leveJled at his notion by another law professor, Otto KoeUreuter, then at Jena, who had printed it in DEUTSCHE JURISTENSZEITUNG, earlier in ApriJ.

A s a tea d y said, the ostensive purpose o f STATE. MOVEMENT, PEOPLE, however, was to help weaken resistances to and win acceptance fo r the new power o f command assumed by a determined Hitler, as de facto and de jure leader no t only o f the m ovem ent but o f the country, as weU. Perhaps it is no t too far-fetched to say that Carl Schm itt carried ou t his job in a way not unlike Shakespeare, who had helped to consolidate the Tudors by attacking their defeated predecessors, the Yorkists, and singing the praises o f those before them, the Lancastrians. In o ther words, he undertook to attack the weaknesses, structural and ideational, o f the Weimar Republic (a thing which he had been doing throughout those years, anyhow), and sang the praises o f an idealised state o f d v ii servants and soJdiers, which he roiled back in to the 19th century. In the process, however, he came to testify to the replacement o f an entire Jegal system , how ever wobbly and fu ll o f warts, by the arbitrariness o f regulations issued and commanding obedience in the name o f such loose a fiction as ethnic identity by the will o f a single man whose dedsions were free o f any o f the norm s previously in force. Hence Schm itt's emphasis on the singularity and unattachment to precedent o r tradition o f the new order with which he begins the essay: 'all public law o f the present German State rests on its own ground' (p. 3), repeated on page 5: 'the law o f the present-day Nationai-Sodalist State does no t rest on a basis that is essentially alien and hostile to it, but on a basis o f its own', and once m ore on page 8.

In fact, the new pow er o f command, legitim ized by the consent o f an elected assembly, meant that as far as their validity was concerned, the ordinances flowing from it were on a par with the legal system that preceded it and with which it had entered, into competition without being able to eliminate its basis by sim ply dedaring it alien. Furthermore, by using the word 'provisional' to qualify the outcome o f the power o f command, Carl Schm itt pointed to another fact, namely that the ordinances, regulations and dedsions

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issued from the new centre o f command and the authorities under its control and supervision could not create real 'law', despite the plebiscitary gestures that went with some o f them, and which after all were a fiction. B y no t feeling bound to any fixed form s, the new power o f command not only was assured o f the advantages o f an unprecedented ñexibility, but also was able, as Max Weber would have said, to transfer the intrafamilial manner o f settling con­flic ts to the body politic, while the fo rm o f the relations within the latter was turned into a m atter o f expediency: selection and personal ties replaced elections and the people were relieved o f their political righ ts and responsibilities in exchange fo r obedience. I t took Carl Schm itt several m onths m ore to be able to produce the legal fíction that the will o f one man is Jaw. He did it by resorting to no other authority than that o f Heraclitus (c540-c480 BC), the pre-Socratic Greek thinker who in one o f his fragments (110) had been saying that obedience to the will o f one man was also law.

In the present essay, though, he would limit him self to the binary opposition between the administrative legality, norm ativist and functionalist in its conception and mode o f implementation, on the one hand, and substantive or 'popular' justice, characteristic o f periods o f transition, on the other. The contrast between formal and empirical, positiv ist and substantive would give way conceptually to the one man's dedsionism a little later, in his n ex t longer writing o f 1934, ÜBBR DIE DREl ARTEN DES RECHTS- WISSBNSCHAPLICHEN [On the Three Ways o f Conceiving the Law]. However, at the end o f 1933, the legal norm s o f Weimar and the Second Reich, tradition, the pseudo- mystical medievalism and the revolutionary rom antidsm , alongside the ordinances issued by the new rule still kept vying with each other, in terfere with, obstruct, alter and even cancel one another, perpetuating the atmosphere o f unpredictability and undermining resistances. The controlled anarchy o f mutual surveillance gave the leader his justiñcation.

The main point o f C h ^ te r I o f the essay is that legality m ay become its own legitimation, i f the transfer o f pow er is carried out according to the laws in force at the time o f the transfer, which lend it the needed legitimation. One m ay speak o f a legal revolution in two senses: one, that the

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transfer has been carried out in conform ity with the Jaws in force at the time, and the other, that the previous legal order and system o f justice are cast o ff, allowing only the dispositions o f the new pow er-holders to fill the vacuum. This is important to remember, because it differs from the legitimacy o f a new order that emerges from the outcome o f a d v ii war, as it happened in Russia after the collapse o f the tzarist order, and som e tw enty years iater, in Spain, and after another decade, in China. Whatever the unintend­ed consequences fo r the population at large, both in Russia and in China, the latter remains the source o f légitimation fo r all the regimes that followed, induding the present, even i f as in Russia, one has been fíying the tzarist com merdal flag, and playing one o f Glinka's operatic hym ns as a provisional national anthem fo r a while.

Chapter II o f Carl Schm itt's essay sketches the outline o f the new system , that is, the workings o f the new pow er o f command which sh ifts the centre o f political pow er from the s ta t^ s o d e ty intercourse to the m ovem ent that has emerged through the fissure between the two, and so from outside the traditional sphere o f power. I t is a dynamic model in which the m ovem ent, rising between the state (the àdministrative machine and the arm y) and the people (those who do n o t belong either to the administrative machine or the army), subjects both to its interests, disenfrancbizing the people (i.e. the d v il sodety), and turning both the state bureaucracy and the arm y in to its willing tools. The m ovem ent dominates and penetrates both, and draws its cadres from the ranks o f the people. F or the sake o f man­ageability, it reserves fo r itse lf the m onopoly o f political power: it is up to the leader to decide what is political and what is no t (in the same way as it is he alone who decides who is a Jew and who is not). W orth noticing here is the stress which Carl Schm itt lies on the neutralization and depoliticization o f the civil so d e ty as a precondition fo r the ascent o f a m ovem ent to the pow er o f command. Although ffitJer borrowed a Jot from the institutions o f the one-party Soviet system (as a m atter o f fact, the influence and the borrowings have been mutual), once in power, he avoided the Soviet internationalism and its universalization o f the political, that is. seeing everything exdusively in term s o f friend and enemy. Such a stance would have ill

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XIX

PREFACE

accommodated his biological doctrine o f racial identity and his policy o f coordination.

Chapter III is ostensibly meant to underline the superiority o f the triadic model over the binary one, that o f the Weimar liberal democracy, the failed attem pt to revive the revolute aspirations o f the 1848 revolutionaries, and against the bureaucratic state o f the 19th-century Prussian monarchy. In fact, it demonstrates the vulnerability o f liberal democracy when imposed upon the unstable condi­tions o f a different era. The legal state is what resu lts when the form er society tries to create the security and the predictability that were not its strongest points even at the best o f times. Victim o f its own prejudices, the 20 th-century hberal democracy, which wanted to be everything to everybody, no t only was unable to provide protection and security fo r all and sundry but has become the breeding field fo r forces and interest groups intent only on carrying o f f the prize in juridically unassailable conditions. The very loose fabric, ridden with inconsistencies, ambiguities, confusions and omissions, d v ic irresponsibility, and a tolerance verging on helplessness, not only puts up a poor defence but invites its ransack by forces previously excluded. In such conditions, judges, and one may add, sden tists , as irresponsible as the politicians that hide behind them, are hardly the rescuers o f the society.

The leadership prindp le as the cornerstone o f political unity o f a country was n o t a new idea, and not in the least Hitler's. I t had emerged in German political thinking time and again whenever conflicts o f interest and party factionalism paralysed the ability o f taking aU-embradng dedsions and following them through. I t derived fro m the pow er prindple o f the hereditary charismatic monarch. In the last years o f W W I, i t found its m ost vocal theoretidan in Max Weber who p u t forth the notion o f a plebiscitary president with his own cabinet, as a unitary solution against the many-headed domination system of the federation o f states that at the end o f W W I had emerged quite un­scathed from the collapse o f the empire. Carl Schm itt's own idea o f political leadership, mentioned earlier in the Preface, is a reform ulation o f W eber's concept that takes into consideration the changes that had occurred in Germany's poUtical landscape in the interval. Nonetheless, when faced

XX

i with H itler's leadership, the apparent main topic o f the last \ : chapter o f the essay, Carl Schm itt had a hard time to I distinguish it from the charismatic dictatorship o f a ■■ demagogue who has the courage to handle differences \ differently and to carry through necessary differentiations ̂ (p, 36). Hitler had concocted his idea o f leadership in the ! struggle fo r power within his own party, o f which the

beer-hall putsch was a part, and it was from there that he ; transposed it upon the state, borrowing the hierarchical ' principle o f the arm y and o f the d v ii service. I t did away ] with election altogether, replacing it by the principle o f : selection and o f the ultimate responsibility o f the leader at ; the apex, surrounded by a d r d e o f cronies, his paladins,; whom he co-opted and dismissed at pleasure. The Council ■ o f the Leader, informally known as the inner cirde, had

still another function, no t mentioned by Carl Schm itt. It sustained in the leader that sense o f responsibility, that in fact he was wanting, b y surrendering that o f its members and deferring to his dedsions and otherwise dining to his every word. For Hitler, the perfect confidence trickster, the recurrent validation o f his leadershw hy his willing subordinates was a vital necessity, even in the conditions o f the positiv ist state machine which the German Reich grew into during the war. The political leadership which Carl SchmiCt had in m ind was in fact replaced b y the simplified bureaucratic notion o f the authority to issue orders, and which in turn presupposed regimentation. Its accessibility was le ft open: everybody m ight become a leader. W'hich reminds one o f the Napoleonic dictum that every soldier carried a field marshal's baton in his knapsack.

N ot to repeat what he had already said in Chapter I and to avoid running the gauntlet by a frank opinion o f Hitler's leadership and its direction, Carl Schm itt turned to a discussion o f the concept o f supervision, presented as the opposite o f political leadership, and as the core concept o f the administrative state, where control, commissions o f inquiry and supervision make up fo r the absence o f political leaders. On the other hand, in order to leam what Carl Schm itt really thought o f Hitler's brand o f leadership and its consequences fo r any particular country, one needs to take his hints in section 3 o f the same chapter, and read Plato's dialogue THE STATESM AN, particularly the

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XXI

characterization o f the steerman, consistently prone to shipwreck the vessel en trusted to him. and Taine's analysis o f Napoleon's rule, which represents the first volume o f his study. THE MODERN REGIME (ET 1890-1894), which itse lf is the third and last part o f his ample work in six volumes, entitled THE OiUGiNS OF CONTEMPORAPy FRANCE. Both kinds o f leader bode ill fo r those who happen to be ruled by them. Carl Schm itt's irony that rests in the stress which he lays on Napoleon's nationality is likely to be lost on the present-day English speaking readers, unaware as they are that in Germany people never forgo t that Hitler was an Austrian (and jokes on that theme were circulating widely), with an inbuilt hostility not only to the Jews but also to the (Jermans themselves, fed as it was by his chronic inferiority complexes, as much as Napoleon, the Italian adventurer and fu ture Emperor o f the French, had in his turn been anti-French: ' I shall do to the French all the harm that I shall be capable o f . Napoleon was sa3ong that while a student at a military college in France, with all expenses paid by the French state.

While Carl Schm itt had been seeking a unifying prindple in the sphere o f ideas and religious beliefs at a time when the very notion o f natural law had been dis­credited, the ever-present fear o f being sucked by the maelstrom o f Bolshevik Soviet rule, the demise o f pariia- mentarianism and the reappearance o f what Max Weber named the ja ck-in -th e-b o x-like career politidans without a calling who were striving fo r immediate advantages for themselves and their supporters, wUllng to sweep away moral and legal obstades that might have cast a shadow over illusions o f recognition, security and just deserts, all these pointed into the opposite direction, towards the bio­logical. I t was Hitler's m erit to grasp it, and make the m ost o f the low est common denominators, the instinct and the affect, in the name o f racial identity. Out with such distinctions as class, culture and wealth; only inherited and inheritable biochemical traits should be made to count. A t the time when the essay was written, 'race' had not yet been established as a legal concept, and personally. Carl Schm itt was seemingly reluctant to add it to the inventory in circulation. He only used the word 'race' twice in the whole text: once, with reference to Hitler's and Frank's

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speeches at the Nazi ju rists ' congress, and a second time, in his own quasi-lyrical encomyum, which after all, is a close definition o f the emotional state o f homo hitlericus:' Down, inside, to the deepest and m ost instinctive stirrings o f his emotions, and likewise, in the tiniest fibre o f his brain, man stands in the reality o f this belongingness o f people and race' (p. 51). Beyond that, he, Carl Schm itt, was not p re ­pared to go. On the other band, he had not the same reticence with regard to 'ethnic identity ', which in the Nazi propaganda had become but a fiction, m eant to stand for the opposite o f the Bolsheviks' internationaiism. I t is equated in the essay with a sense o f belongingness 'to the law-creating com munity o f kith and kin ' (p. 51). A t the same time, Schm itt seemed anxious to point out that it was the only guarantee against arbitrariness and tyrannical conduct in the leader, as well as in the judge! (The string o f events that marked that year since H itler's appointment as Chancellor on 30 January had already shown its unreliability, as it allowed free rein to arbitrariness and cruelty in decision-m aking.) Nonetheless, Carl Schm itt could no t help giving a short practical lesson about the new meaning o f ethnic identity, letting the reader to draw his own conclusions: one m ay easily infer from the last two paragraphs o f the essay that the Nazi fiction was based on the exploitation and manipulation o f individual awareness o f differences, whether in matters o f culture and tradition, custom or expression, with only limiting consequences as regards the belief in a common ethnicity, and fo r that reason, not conducive to group-form ation. It could be used only to justify the expulsion o f the undesirable under the pretext o f their being different from the com m unity and its various walks. I t was used as a substitu te fo r the M arxist dass-conflict and provided the Nazi leadership with the cover fo r its discretionary use o f the Soviet experience to its own advantage while avoiding som e o f the Soviets' original pitfails: I t is Carl Schm itt’s conclusion that 'without the principle o f ethnic identity, the German National- Socialist state cannot e x is t . . . Again, with all its institu­tions, it would be immediately handed over to its liberal or M arxist enemies, now haughtily critical, now obsequiousiy assimilationist' (p.48). Which is what happened after W W II, when the Western sectors o f Germany were returned to the

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XXIII

Weiwar system , while the Eastern zone reverted to Soviet socialism, almost as a m atter o f course. Carl Schm itt's diagnostic is also confirmed by the new German communist p arty 's reorganization after the reunification as the Party o f Democratic Socialism.

The more recent attem pts to link the award o f inter­national loans and g ran ts to various countries with the imposition o f pre-packaged hberal democratic reform s only betrays the inability o f the m oney brokers to grasp the reahties o f the present-day world and o ffer adequate suggestions for pohtical problems in need o f solution, when and i f asked to do so. I t is an inabihty which they refuse to admit even to themselves, and which is a growing source o f mutual contempt and hostility, that often turns into an inept game o f cops and robbers, in which the roles are interchangeable, and social and economic destabilization is the only noticeable result. In this intercourse, the vocabulary used and some o f the principles quoted have been borrowed from the firs t few decades o f the last century but only in order to disguise old habits and propensities, and lend an air as it were o f global legitimacy to what is only a chronic p o verty o f ideas and lack o f imagination that neither side seems able or willing to overcome. Thus, to take an example, the mere word 'democracy' is nowadays used indisaim inately as the great 'parole o f legitimation' o f any dubious undertaking at local, national or international levels. Terms are emptied o f any ideational content and are cultivated m erely fo r their pure emotional value to disorient, m ystify and induce resigna­tion, or the opposite.

SIMONA DRAGHICI

PREFACE

EDITOR'S NOTE. In the texts that follow, the notes m arked by asterisks are the author's while the numbered are the English editor's; m oreover, the index covers only Carl Schm itt's texts. The inconsistencies in capitalization reflect a lack o f editorial consensus which m ight be reached by the time o f a second printing. Needless to say that without the help o f the Library o f Congress s ta ff this book would have never been completed.

XXIV

BIBLIOGRAPHICAL NOTE

Whoever is interested in the question o f legitimacy m ay access the subject catalogue o f the Library o f Congress: the

jnumber o f titles on the m atter that has been published the world over in the last three decades is impressive. Here,

¡however, I shall lim it m yse lf to quoting those tex ts by Carl iSchmitt that cast additional light on the problem s raised here and are available in Engiish translation. They are Usted in chronological order:

POLITICAL ROMANTICISM (1919), tr . Guy Oakes. MIT. Cambridge M ass.. 1986.

THE CRISIS OF PARLIAMENTARY DEMOCRACY (1923), tr . Ellen Kennedy, MIT, Cambridge M ass.. 1985.

THE IDEA OF REPRESENTATION (1923). tr . E.M . Codd, ed. S. D raghid, Plutarch Press, W ashington DC, 1988.

The Age o f Neutralization and Depoiitidzation' (1931), tr. John P. McCormick, in TELOS No. 96 (Summer 1993), pp. 130-142.

FOUR ARTICLES (1931-1938). ed. and tr . S.Draghici, Plutarch Press, W ashington DC, 1999.

THE LEVIATHAN IN THE STATE THEORY OF THOMAS HOBBES: MEANING AND FAILURE OF A POL- JTICAL SYMBOL (1938), trs . George Schwab and Erna Hilfstein, Greenwood Press, W esport Conn., 1996.

The Legal W orld Revolution' (1978), tr . G .L. Ulmen, in TELOS No. 72 (Summer 1987), pp. 73-89.

There are m ore w orks by Carl Schmitt, relevant to the problems under discussion but which are not ye t available in English translation, among them

DER HÜTER DER VERFASSUNG (1931), 2nd ed., Duncker & Humblot, Berlin, 1969, and

LEGALITÄT UND LEGITIMITÄT (1932), 2nd ed.. Duncker & Humblot, Berlin, 1968.

Moreover, in 1988, M essrs Duncker à Hum blot o f Berlin reprinted the 1940 edition o f

POSITIONEN UND BEGRIFFE IM KAMPF MIT WEIMAR-GENF-VERSAILLES 1923-1939, thus making available an important collection o f Schm itt's articles ón the period, and so expanding the perspective opened b y the

XXV

Other collection o f his shorter writings and from which 'The Question o f Legality' has been translated here, namely

VERFASSUNGSRECHTLICHE AUFSÄTZE AUS DEN JAHREN 1924-1954, Duncker & Humblot, Berlin, 1958, with several reprints.

Besides, the two American monographs:CARL SCHMITT: THEORIST FOR THE REICH by

Joseph W. Bendersky, Princeton U. Press, Princeton, 1983, and

THE CHALLENGE OF THE EXCEPTION: ANINTRODUCTION TO THE POLITICAL IDEAS OF CARL SCHMITT BETWEEN 1921 AND 1936 by George Schwab, 2nd ed., Greenwood Press, W esport Conn., 1989 may help one find one's way through the intricacies o f German pohtics before and during Hitler's coming to power. Besides, they both contain useful bibliographies.

For a sJighJy earlier period, one m ay consult:MAX WEBER AND GERMAN POLITICS by Wolfgang

J. Mommsen, tr. Michael S. Steinberg, Univ. of Chicago Press, Chicago, 1984,

while the age o f Prussia's m odem reform ers m ay be gleaned with painless pro fit from

THE AGE OF GERMAN LIBERATION, 1795-1815 by Friedrich Meinecke, ed. and tr . Peter Paret, Univ. of Cali­fornia, Berkeley, 1977.

BIBLIOGRAPHICAL NOTE

XXVI

STATE, M O V E M E N T , P E O P LETHE TRIADIC STRUCTURE OF

THE POUTICAL UNITY (1933)

THE PRESENT CONSTITUTIONAL SITUATION

1. All public law of the present German State re s ts on its own ground. Some individual provisions of the Weimar Constitution are still in force, yet no m ore than the large mass of pre-revolutionary regulations, and so only to the extent they do not contradict the new juridical conditions. However, they do not serve as the groundw ork and consti­tutional legitimation of the present State. Their continuous vaii^ ty rests on an assumption in p a rt explicit (as for instance, with regard to the conditional stipulations, to be talked of shortly, of the provisional constitution - the so - called law of em powerm ent’ of 24 March 1933), and partly implicit in the new public law. Either substantially, by its contents, or formally, by its legal constitutional force, the Weimar Constitution cannot be the foundation of a National -Socialist State.

The Weimar Constitution is no longer in force. All the principles and regulations that were essential to that consti­tution both from the ideological and the organizational standpoints are set aside along with all their premises. Even before the so-called empowerment law of 24 March 1933, a ^ c r e e issued by the Reich President on 22 March 1933 had solemnly abolished and removed their sp irit and their foimdation together with the b lack-red-gold flag o f the Weimar system (Article 3 of the Weimar C onstitution*). Likewise, one could not wait fo r the empowerment o f a system which by its own weakness and neutrality was in no way capable of recognizing even ' a m ortal enemy of the German people, in order to abolish the Communist Party,* the enemy of the State and o f the people. Such a judicial m easure as the law of the Reich o f 14 July 1933 against the reconstitution o f political parties (ReichgesetzbJatt I, p. 479)* and the law of 13 October 1933 to ensure legal peace (RGBi. I, p. 723)* eradicate the Weimar Constitution both ideologically and as far as its organizational consequences

are concerned. That constitution is no longer identical with itself when the whole ideal, liberal-democratic world has collapsed, when for instance, there are no longer any indiscriminate party formations, any political freedom of propaganda, of opinion, of conscience, of action, and even of ideological efforts hostile to the State, leading to suicidal neutrality, when there is no longer any equalization or ra ther the absence of discrimination between the enemy of the State and the friend of the State, between the comrade of the people and the alien. The new world of the National- Socialist law cannot be understood in any other way, and even less, find justification or a basis in the concepts and the form s of the Weimar system. From the point of view of the National-Socialist State, every attem pt to justify o r to refute the present legal situation on the basis of the Weimar Constitution is fo r that very reason a senseless game, or else, an expression of the political effo rt to realign the public law in force now and the auctoritas rei constitutae*, which belongs to the present-day State, with the order of the ideas of the form er law, and in that way, either to paralyse it o r at least to trea t it as relative.

Even from the point of view of the so-called formal authority o f constitutional law, the provisions of the W eimar Constitution are wanting. The provisional constitu­tion of 24 March 1933 (the so-called law of empowerment), as well as the law of 14 July on the plebiscite‘s, surpasses the framework of every regulation conceivable in term s of the Weimar Constitution. The conditional stipulations of the provisional constitution of 24 March 1933 (rights of the Reich President, and in addition, of the Reichstag* and the R eichsrat*, as institutions) have not the edge over the law of 14 July 1933 on the plebiscite. W ith the help of this law. other laws may take effect that would go beyond the conditional stipulations of the provisional constitution of 24 March 1933.

Several ju rists, who obviously cannot get used to the reality of the National-'Socialist State, have tried to present the new basic laws of this State as deviations from the Weimar Constitution, deviations which should be measured exclusively against the so-called 'law of empowerment', either in generous term s, as 'admissible', o r critically, as 'inadmissible'. This is a concession which internally is

STATE. MOVEMENT, PEOPLE

j! impossible, unsustainable. The text of the Weimar Constitu­

tion cannot be treated as continuously valid in the conditions o f the new public and constitutional law of the National-Socialist State. From that it m ight then be deduced that the National-Socialist public law (like the 1924 law regarding the Dawes Plan!’ ®) has only the value of a tem ­porary, interim measure against the background of the earlier constitution, and that a simple bill passed by the Reichstag might again abolish the new constitutional legisla­tion entirely, and re tu rn to the Weimar C onstitution.* How can one distinguish the 'pure text* of a constitution from its contents and its formal validity, and how is it possible to say with juridical logic that a constitutional law, admittedly

;new in its contents, is valid, and that the contents o f the I Weimar Constitution is still in force? 1 mention this manner I of looking at things only in order to give an example o f the confusion which appears as soon as one gives up the clear and simple viewpoint that the law of the presen t-day N ationai-Sodalist State does not rest on a basis that is essentially alien and hostile to it, but on a basis of its own.

But what then is the meaning of the Reich law of 24 March 1933 that changed the constitution, yet was passed ¡with the required majority of two thirds of votes, in ac­cordance with the dispositions of A rtide 76 of the Weimar C onstitution’ ’ ? This so-called law of em powerm ent was passed by the Reichstag solely as the enactment o f the will of the people, made manifest through the parliamentary elections of 5 March 1933. When looked a t wiüi the criteria of jurisprudence, the elections were in fact a popular re fer­endum. a p leb isd te’ * by which the German people has acknowledged Adolf Hitler, the leader of the National- Socialist Movement, as the political leader o f the German people. The local elections of 12 March confirmed once m ore the same will of the people. The Reichstag and the Reichsrat would act from then on exdusively as the executive bodies of the people’s will. Nevertheless, the

STATE, MOVEMENT, PEOPLE

* S«*. fo r in stance , M edicue' rem ark s on the R eich law of 2 3 M arch 1933 in D eutsches R echt [G erm an Ju risp ru d e n c e ] by P fu n d tn e r-N e u b e rt, B erlin , 1933 , and S cheuner in L eipziger Z e iteeb r ift, A ugust 1933 , p. 903 .

mental habits of the so-called positivist ju rists give them grounds to fmd in this law the juridical foundation of today's State. The phrase 'law of empowerment' fu rther re ­inforces the propensity for this erro r. Because of that, it is necessary to recognize that the expression 'law of empower­m ent' is a juridically imprecise albeit erroneous description. I t would be better to avoid the expression altogether, the m ore so. as it does not appear either in the title of the law (Law for Removing the D istress of People and Reich) o r in its text: it has only been attached to the law from the outside. As a m atter of fact, this 'empowerment law' is a provisional constitutional law o f the new G erm any*

The provisional constitution of 24 March 1933 has all the characteristic features of a transitional measure. If this is co rrect under the aspect of a law transform ing the constitution in conform ity with Article 76 o f the Weimar Constitution, that does not mean that one may still now­adays consider the Weimar Constitution as the foundation of the present-day State structure, but only that the law represents a bridge from the old to the new State, from the old base to the new base. Practically, it is of great importance that this transition should take place legally. As it will be recalled further on, legality is one o f the ways by which the Civil Service and the administrative machinery of the State function, and for that reason it was im portant both politically and juridically. Besides, it is not without m erit that a system surrenders on its own, in conformity with its own legality, and affixes its seal on its own end. But that is only the abdication and the death statem ent of the old law, and not the substantial definition of the new. Neither the base, nor the boundary o r any essential in ter­pretative opinion, that might bind the presen t-day State,

STATE, MOVEMENT, PEOPLE

* I pre»en t«d th is in ta rp re u tio n im m ediately a f te r th e pub lica tion of the law (on 31 M arch 1933. fo r th e f i r s t tim e, a t th e Conference of the G erm an Society for th e Prom otion of Political Sciencee, a t W eim ar). It eeem e th a t in th e m eantim e i t hae caught on. I t h as assum ed a special sign ificance for th a t m a tte r w hen th e Reich State S ecre tary fo r the In te rio r , O r. P fu n d tn e r, adopted th e aame e tandpo in t, and d escribed the law as a 'p ro v isio n a l co n s titu tio n ' ( lec tu re d e liv e re d at th e A dm inis­tr a t iv e Academy of B erlin , on 4 Ju ly 1933, Fascicle 1 of th e Public A d m in istra tio n in th e New R eich . B erlin , 1933).

can be deduced from the old era which has resigned. For the Jaw in force nowadays, the 'empowerment' of 24 March 1933 is nothing but a kind of republican analogy to the explicit release from the oath of loyalty u ttered by a monarch when renouncing the throne o r abdicating. On this point, that legalization is in its juridical and political mean­ing what the legalistic mentality of a legi^ative liberal- democratic State is fo r the principle of lo y ^ ty in a State of monarchical servants. ’ ®

The German revolution was legal, that is to say, formally correct in keeping with the form er constitution, i l ia t happened thanks to discipline and the German sense of order. In res t, its legality is meaningful only in term s of the legality o f the form er Weimar Constitution, that is of a system that has been superseded. I t would be juridically false and politically an act of sabotage to derive from that icind of legality a continuous validity of superseded juridical ideas, institutions o r norm s, and together with it, a p er­manent submission to the letter and the spirit of the Weimar Constitution. The soimd law of the German revolu­tion does not re s t on the fact that, through their consent, several dozens of deputies were willing by their fifteen per cent to make up the difference which exists between the simple and the tw o-thirds majority. The law of the presen t- day German State does not hang on the conditions, limita­tions, o r just the mental reservations im der which that group has given its consent. I t would be absurd both politically and morally, as well as juridically, that empowerment be here granted by powerlessncss, and in that way, seize power again fo r a system that has become impotent. What is alive cannot be legitimated by means of what is dead, and force has no need to legitimize itself by means of powerlessness.

A t the 1933 Party Congress in Nurem berg, Rudolf Hess, our Leader's deputy, has said that the Party Congress [Parteitag] is a 'parliament' [Reichstag] o f the Third Reich, and that hits the nail on its head. But the notion of 'parlia­m ent' is not meant in the sense given to that institution by the Weimar Constitution. And when the Leader's deputy u tte rs the following sentence: 'AH the pow er comes from the people,' this is essentially different from what was meant by the liberal-democratic Weimar Constitution when

STATE, MOVEMENT. PEOPLE

it used the same words in its Article 1.* * AH our public law, induding all the provisions taken over from the Weimar Constitution and subsequently valid, rests on an entirely new foundation. The basic features of the new State structu re will be dealt with fu rther on (in Chapter II). Here one m ust only make d ea r the own law of our new State from the beginning, against all the false juridical construc­tions which would lead the Nationai-Sodalist State back into the tracks and the ways of the old and superseded thinking about the State.

2. The constitutional provisions valid today stipulate fo r a coexistence of more supreme offices of the Reich, as well as m ore possibilities of legislation.

a) The following are to be counted as supreme offices o f the Reich: the Reich President, the Reich Chancellor, the Reich Government, ’ ® the Reichstag, the Reichsrat.* The question of the mutual relation of the many Reich offices cannot be resolved by means of the Weimar Constitution. The valid regulatory prindple fo r the dassification of the supreme offices of the Reich is that the Reich Chancellor is the political leader of the German people, politically united in the German Reich. The prim ary importance of the

STATE. MOVEMENT. PEOPLE

* The Bconomic Council of th e Reich [R eichew irtsche ftera t] , ae w ell ae th e office of th e rep re een ta tiv e of th e R eich P reaiden t, m ay be ee t aside. N o tw ithetand ing th e law o t 5 A p ril 1933 (ROBi. I, p . 165), th e Econom­ic C ouncil of th e R eich i t a tran a itio n a l body w ith an u n c lear p u rp o rt aa long aa ita lot haa not been decided through th e e labora tion of a tocial c o n a titu tio n of profeaaional o rgan izations. Aa regards th e rep re sen ta tio n of th e R eich P re s id en t, accord ing to th e law of 17 D ecem ber 1932 on the rep re aen ta tio n of th e R eich P re a id en t (RGBI. I, p . 547), in every case of im ped im en t, even th e sh o rte s t, on th e p a r t o f th e R eich P re s id e n t, he m u s t be rsp rse e n ta d not by th e R eich C hancellor b u t by th e P re s id e n t of th e Suprem e C ourt of th e R eich . Ae i t is know n, th is m easu re w as taken a t a p a r tic u la rly gloomy tim e for th e m u lti-p a r ty State of W eim ar. Ita ta n a e and aim lie in th e fact th a t in such a p lu ra l is t ic sye tem . th e p a r t ie s , f igh ting among them eelvea, had no u n ita ry po litica l w ill , and at th a m ost, cou ld all converge only upon a p o litica l zero po in t. In the N ational-S ocialist State, w h ich is founded on th e lead er p r in c ip le [P u e h re rp r tn z ip ] , a regu lation lik e th a t, em erging from such m otivss, is a b s u rd . T herefors, even w ith o u t i ts ex p ressed abo lition , th e lew of 17 D ecem ber 1932, in m y o p in io n , is as l i t t le v a lid as th e o ther co n s titu tio n a l p rov ia ione of th e W eim ar system th a t no longer correspond to th e p re se n t law . W ere a sp ec ia l repeal of th is law co nsidered neces- e a ry , w h ich p e rh ap s w ould not be ex cessive , for psychological reaso n s in o u r period of tra n s itio n , i t is how ever not ind iepeneab le e ith e r co n s titu ­tio n a lly o r ju rid ica lly .* ■

political leadership is a fundamental principle of the presen t- day public Jaw. The rights of the Reich President are guaranteed. But gone is the abnormal situation of the last few years of the Weimar system, in which the Reich Presi­dent was constrained to abandon the specificity of his high office, and function as stand-in for a political leadersh ip .’ ' The office has in a way resumed the 'constitutional* position of the head of an authoritarian State, qui règne e t ne gou­verne p a s .’ * Nowadays, it is self-understood not only de facto but also de jure, that the Reich Chancellor Adolf Hitler holds a position in conformity with the State law, that is, not comparable to the position of any of the preceding chancellors, either in relation to the Reich President or to the other members of the Reich government. The political 'leadership* exercised by Adolf Hitler is something more than and different from a 'simple determination of d irect­ives,' according to A rtid e 56 o f the Weimar C onstitu tion .’®

b) Besides the coexistence of the said offices, there is the coexistence of varied JegisJative possibilities. ® ° The normal way of today's legislation is that of the decree of the Reich Government (A rtide 1 of the provisional constitution of 24 March 1933).® ’ M oreover, the Reich Governm ent has the possibility to question the people by way of the ballot, precisely about laws and regulations (the law of 14 July 1933). The legislative possibilities recovered from the Weimar Constitution (such as the voting by the Reichstag in virtue of A rtide 68,® ® and the plebiscite in virtue of A rtide 73®®) are still equally valid. Finally, the righ t of the Reich President to issue decrees with the force of Reich laws, according to A rtide 48, paragraph 2,®^ is still effective, and to be exercised in particular cases.

In the face of this variety of legislative possibilities, the question remains of their hierarchical o rder and their mutual relationship. Here, too, the question cannot be solved through form alist and sophistical interpretations of the words of the Weimar Constitution. The public law of the National-Sodalist State m ust ra ther enhance the awareness of the fact that the absolute priority of the political leadership is a positively effective basic law of today’s State. As a consequence of the application of this fundamental law, the liberal constitutional separation o f the executive from the legislative is cancelled, and the governm ent assumes a

STATE, MOVEMENT, PEOPLE

true, formal, legislative righ t (which, by the way, is expres- sedly acknowledged in Article 1 of the provisional constitu­tion of 24 March 1933); in addition to all this, every legislative initiative is in principle a m atter fo r the govern­m ent. An appeal of the Leader to the Reichstag is still of consequence, and through it, perhaps, to the Reich legislation in such an event. * ® On the other hand, it is not possible either de facto o r de jure to convene the Reichstag against the will of the Leader (in virtue of the alleged right of one third of the members, in conformity with Article 24*®), and there to present a so-called bill o f initiative. Even the referendum , and the popular legislative procedure o f the Weimar Constitution give way to the new righ t o f the Reich Government to popular consultation.

The subsequent question of the relation between a law of the Reich Governm ent and a law brought fo rth by popular consultation may equally be answered on the grounds of accepted National-Socialist principles. The Reich Government acknowledges the authority of the people's will which it has called upon, and as a consequence, considers it binding. In no way does it assume the righ t simply to abolish a law of the Reich, based on popular consultation, by means of a new Government law. It is another m atter altogether, if in a completely changed situation, the popu­lar law no longer corresponds to the facts and becomes meanmgless. In that case, it is up to the political leadership to decide the form in which a new and necessary measure is to be taken, and which of the means available in that case - new popular consultation, the reorganization of the Reichs­tag, a Reichstag resolution, a Government law - may be used to that end. * ’

The new elections fo r the Reichstag, which by a decree o f the Reich President of 14 October 1933 (RH Bl I, p .729) were set fo r 12 November 1933, are meant only as an integral part o f the great plebiscite of the same day on which the German people will assume a forem ost position in the politics of the Reich government, and make itself heard. Previously, in the Weimar system, the so-called elections had long lost their true elective character. As it has been repeatedly remarked, they had become a plebiscitary option of the masses o f voters between five o r six incompatible program mes and ideologies, an option that split the German

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10

people into as many incompatible parties.®* The danger of such a pluralistic division of Germany into several totalitarian parties has been quelled in the one-party State of the National-Socialist Germany. Thus, the election has become a response of the people to the appeal launched by the political leadership. That character of appeal o f the reorganized Reichstag and its connection with the plebiscite became evident on 12 November.

STATE. MOVEMENT, PEOPLE

II

THE TRIADIC STRUCTURE OF THE POLITICAL UNITY

1. The political unity of the present-day State is a three-part summation o f State, M ovem ent and People. It is radically different from the liberal-dem ocratic State schema that has come to us from the nineteenth century, and not only with respect to its ideological presuppositions and its general principles, but also in the essentid structural and organizational lines of the concrete ediflce of the State. Every essential concept and every im portant institution is affected by this difference.

The new State structu re is marked by the fact that the political unity of the people, and thereby, all the regulation of its public life appear to be ordered into three distinct series. The three series do not ru n parallel one to the other, b u t one of them, the M ovement, which carries the State and the People, penetrates and leads the other two. Three fo r­mations move side by side, in their own order, meet in certain decisive points, particularly at the apex, have distinctly different contacts and direct links with each other, which however are not allowed to cancel the distinctions, and as a whole, effected by the carrying series, all shape the constitution of the political unity. Each has moulded itself from a variety of viewpoints and, if I may say so, of different materials, but all, even if in various ways, are swept along by the public legal order.

Bach one of the three words: State, Movement, People, may be used alone to denote the whole of the

l i

political unity. At the same time, however, it indicates yet another particuiar aspect and a specific element o f this whole. In this way, the State may be regarded strictly as the politically static part; the Movement, as the dynamic po lit­ical element, and the People, as the apolitical side, growing under the protection and in the shade of the political decisions. But it would be false to make sophistically out of them alternating and mutually exclusive opposites, and play off the State against the Movement, o r the Movement against the State, the People against the State, or the State against the People, the People against the Movement, o r the M ovement against the People. This would correspond to the liberal splitting, of which m ore will be said later on, and the political sense of which is the abolition, o r at least, the relativization of the political whole. The Movement, in particular, is as much the State as it is the People, and neither the present-day State (in the sense o f political unity) nor the German people of today (the subject o f the political entity which is the ’German Reich') would be imaginable w ithout the Movement.

Hence the following three series:a) The State apparatus and the Qvil Service, consisting

of the army and the civil servants. This is still often de­scribed (in keeping with a traditional way of speaking) as the State, but it is an organization of command, adminis­tration , and justice in the narrow est sense only, whereas in its broadest sense, the term 'State' will be always used, as already said, in its traditional meaning of the whole political unity o f a people.

b) A Party carrying State and People, and recruited from aU the strata o f the People, but self-contained and led hierarchically, because it requires a specially s tric t organiza­tion and a firm leadership. A Party in whose political body the Movement finds its specific form. The sociologists have named it ’order', 'elite* o r something like that, in order to differentiate it from the political party o f the liberal State (which in principle is not tightly organized, but relies on ■free recruitm ent'). Still, one may keep holding on to the usual name of 'party ', because nowadays a misunderstanding is little to be feared. This also corresponds to the wording of the law of 14 July 1933 (RGBJ. I. p. 479) against the ré­constitution of the parties: 'The National Socialist W orkers'

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12

Party constitutes the only political Party in Germany.'®®c) A sphere of the People, left to auto-administration,

that comprises the professional economic and social order, as well as the communal auto-administration (based on the local neighbourhood). Even a corporative State (sta to cor- porativo) of the Fascist State [K orporationsstaat des faschistischen Staates], which rejects the principle o f an autonomous territorial administration and tolerates only types of technical or 'functional* autonomous administration, a system of trade unions and associations, a 'popular social order* [volkstümliche Sozialordnung] (this phrase has been coined by Werner Sombart) m ight fill the space of a non- statal, pubßc and legal auto-administration and introduce an autonomy that might be possible within the general fram e of !the poUtical leadership, a corporatism or a union of various kinds of association, in the poUtical life o f the People.

This new triadic image o f the whole poUtical unity is recognizable in the State of the German National-SodaUst Movement, as it is in the Fascist State, albeit in a different manner. (kneraUy, it is characteristic o f the tw entieth- ccntury State. Even in the Bolshevik State o f the Soviet Union, a triadic structure had been attem pted, of State, Party and Trade-Unions as a total encompassing of the poUtical and social reaUties. The triadic structu re becomes 'apparent not only wherever one seeks to surm ount the liberal-democratic system and proceed to a new State, corresponding to the social and poUtical reaUties o f the twentieth century. I t also corresponds to the great traditions of the (ïerman theory o f the State, initiated by Hegel. Oiûy in the second half of the nineteenth century, however, it was ousted from the consciousness of the German people under the influence o f liberal and alien theoreticians and w riters. Hence, this triadic outline should appear whoUy convincing as a Hrst clean d ra ft o f the present-day State structure . In no way is it affected by the objection that it deals only with the idealization of the ItaUan Fascist situation.

In what relationship the three series and their organizations stand to one another is a constructive and organizational question in itself. Likewise, the mutual relationship between the three corresponding constitutions is in itself a question of the theory of law and State. But the

STATE, MOVEMENT, PEOPLE

13

phrase 'Party that carries State and People' already conveys that the political leadership m ust rest on this series sequel, whence the other two orders come second to it, whose position is in the middle of our outline, and are penetrated, moulded and led by it in an authoritative way. As organization of the 'M ovement', the politically leading Party carries both the State 'apparatus' and die social and economic order as also the whole of the political unity. F rom this surges the central significance of the statal and legal concept of the political leadership, which has already been mentioned several times, and will be enlarged on, further.

Abstractly and generally speaking, the mutual rela­tionship of the three series may be quite different in different political entities at different times. To give an ex­ample, it was characteristic o f the Hegelian civil-service State of the Prussian-Germ an type, which was a historical reality approximately between 1815 and 1848, under an already relativized monarchy, after the pure absolutism and before the constitutional recognition of the bourgeois- parliamentary legislative bodies, that a State civil service of high cultural and moral standing, and incorruptible, was already exercising the functions of the stratum in charge of the State. Whereas in other States, the civil service would be conceived only as a bureaucratic tool of the powers in charge of the State. Then, the additional question may be raised, of the relation between the civil attribute and the m ilitary attribute of the State, between the administrative power and the power o f command within the ranking order of the State. Still, a great many methods have emerged, of mutual influence, leadership o r domination. They are applied either publicly and visibly, o r internally and invisibly, cither in virtue of norms specified in advance, o r freely, according to circumstances and expediency, and develop into all kinds of institutions. To pursue this subsequent problem is the task of a concrete 'theory of the State' of the twentieth century. I do not say; of a 'general theory of the State', because as Paul Ritterbusch has recognized, the category ■general' in the theory of the State is a typical concern of the liberal nineteenth century. It emerged from the nprm a- tiv ist efforts to dissolve the concrete State and the concrete People into 'generalities' (general education, general law

STATE, MOVEMENT, PEOPLE

14

itheory, finally, general theory of knowledge) and in this way, to destroy their political essence.

2. One needs always to remember that the concept of 'State', as well as that of 'People', has been transform ed by 'this triad, and that the traditional way of representation, derived from the historical conditions of the nineteenth ¡century, can no longer grasp the new reality. As statal dv il iservJce and offidaldom , the State loses the m onopoly o f the political which it acquired in the seventeenth century and in the eighteenth. Instead, it has come to be recognized as just |a p a rt o f the political unity, and p redse ly a part that Idepends on the organization which carries the State. There­fore, the essence o f the State ofñdaldom and public (administration no longer identifles itself alone with the political whole, nor with a self-suffident 'au thority '. N ow ­adays the political cannot any longer be determined by the State, rather the State m ust be determined by the political. As a result, ever since the nineteenth century the Constitution developed fo r this State and the legality deriv­ing from it have moved from the centre of the community to another position o f the political life. The m ore form al and mechanical the legality becomes, the m ore manifestly it is at variance with the law, however sound the latter is in its (contents. It received that secondary significance, relative because instrumental, befitting it. I t became the functioning mode o f the State administrative machinery. This legality identifies as little with the law of the people as does the State machinery with the political unity o f the people. To the law, in substantive sense, belongs the p rio rity in securing political unity. Only on the basis of uncontested political dedsions, which in this sense are positive, may the law then spread to all the sectors of the public life in a free and autonomous expansion.

The theory of the State and of the law of the last two generations of ju rists had felt the opposition between the Jaw and State legality - which fully corresponds to the incongruence between the people's political unity and the State administrative machinery - and had given it expression on the one hand by holding firm ly to the position that by 'law' it should be understood every 'juridicd norm*, and on the other, and at the same time, by formalizing and mechanically rendering jurisprudence into law, and the Jaw

STATE, MOVEMENT, FEOPLE

15

in turn into the decision of the majority of the legislative body, that is to say, the parliament. One does not refer here to the familiar distinction between popular justice and lawyers' justice {Juristenrechi], as much as to the abstract, conceptual exacerbation of the conflict into the 'general* theory of the law and of the State. A doctrine, which is interesting fo r its internal logic, would take into consideration only the civil servant, that is to say, justice and the administration of justice, and not the 'citizen', as the true and proper addressee of the legal norm . As a result, it could ultimately consider justice in general only as 'the embodiment of the rules of State activity'. In a passage that is quite characteristic of the consequential manner of the liberal-constitutional thinking (and at the same time, of its relationship with the German language), it is said: 'Even the legal obligations of the legal maxims (in the narrow sense of the term ), that statute the subjects and set norm s of punishment and execution, have as their contents the State administration with respect to the executive activity of punishment and execution carried out and completed by means of the State organs' (Kelsen, Hauptprobleme der Staatsrechtiehre [Main Issues of the Theory of State Law], p. 252). In this way, every Jaw becomes 'State law' in a particular sense, and the other way round: every State activity becomes 'law', that is to say, implementation of the norm by that part of the State administrative machine which is bound to norm s. This has nothing to do with law or justice in an objectively substantive sense, bu t is typical of the political system of the liberal depoliticization. Hereby, the liberal normativism simulates a 'dominion o f the legal norm ', which in reality is only the dominion o f a system of legality over the administrative machine, a system in turn ruled by non-statal and politically irresponsible forces. This positivist and 'functionalist' way of thinking, which denies any substance to the law, acknowledges the law only as a calculable link of the restrictive machinery of the State, that is to say, as working mode of the competent authorities and courts. Alongside it, as already said, the so-called material concept of the law would continue to exist in the legalpraxis. The law was 'legal norm ’, and every legal norm,even of customary law, was 'law'. Unlike the mereadministrative decree, it was addressed not only to the 'civil

STATE, MOVEMENT. PEOPLE

16

servant' (subject to a special relation of forces), but also to the 'citizen' (subject only to the 'general' power of the State). Thus, form erly, there were in fact two diverse and ilisconnected representations of law and jurisprudence, two addressees of the norm s and two notions of the law. and therefore, two other kinds of law, cancelling one another.

In the triadic organization of the political unity , the notions o f 'State' and 'People' assume another position, and à meaning altogether different from that within the binary system of the liberal democracy (described in Chapter III). Here, too, the binary way of thinking w orks w ith antithet­ical divisions such as the State agmnst the people, and people against the State, government against people, and people against government. In the National-Socialist State, ^ e leading political body, carrying State and People, has the task to prevent and overcome all the antitheses of this kind. For that reason, the People is no longer simply a sum total of non-governing voters. The dv il servant finds him self no longer in opposition to the dtizen calling him self 'free ', as in the monarchical, constitutional State, and whose freedom, essentially unconnected with the State, was a liberal polemical legal concept in the fight against the 'unfree* soldier and career®* civil servant. The Q vil Service is no longer compelled, as in the system of party-p luralism between 1919 and 1932, to organize itself as an in terest group and to refer to the 'well-earned rig h ts ', individually worked out for each dv il servant; instead o f quoting the idea and the institution of the Cîerman Civil Service. The civil servant is now a comrade of the people in a political unity based on ethnic identity, and as Party com rade, a member of the organization carrying State and People, and this organization has filled the decisive executive posts of the State administrative body with political leaders from the Movement, carrier of State and People. ® '

The spheres of popular and professional auto- admininstration are penetrated by the M ovement in a corresponding manner. Indeed, so much so, that one comes to recognize here the autonomous structure o f a sphere by far more depolitidzed and different from the organism of the civil service and the offidaldom that was only relatively depolitidzed by virtue of its static character. This 'depoliticization', however, has nothing to do with the

! STATE, MOVEMENT, PEOPLE

17

earlier political misuse of the allegedly 'apolitical' business of the autonomous administration, but re s ts entirely on the political decision of the political leadership. It is one of the fundamental notions of the politically uptodate German generation that to determine whether a m atter or a field are apolitical is precisely a political decision in a specific way. Both the 'objectivity' of the civil service, and particularly the 'independence' of the judges, as well as the apolitical character of the traditional sphere of popular auto-adm inis- tration are possible, with all the advantages and the security of the apolitical, only if both submit to the politick leadership and the political decisions o f the Movement, carrying State and People. Consequently and in a specific sense, that is the political element of die community, the dynamic engine opposite the static element of the admin­istrative machine directed by regulations and the political dedsions that lie in it, and also the political guarantor of the depolitidzed communal o r professional auto-adm inistrationf

3. The new regulation of the relations between the Reich and the provinces [Länder] emerges from the new overall structure. The law of 7 April 1933 on the Reich Governors has secured the precedence of the political leadership of the Reich over the provinces, and submitted the latter to the political leadership of the subleaders subordinate to the Reich leader.** In this way, both the traditional concept o f the federal m onarchical-dynastic State of the nineteenth century and the m ulti-party federal State, resulting from the inner weakness and corruption of the Weimar system, are outdated. Making use o f a brief and synthetical formula of the State law, one may say that the combination o f the federal idea with the State idea - either in the form of a confederation, o r in the form of a federal State - was fo r a century the real danger to Germany's political unity. Actually, every federal organization impHes

STATE. MOVEMENT. PEOPLE

* The queetion , to w h ich te r ia s of th is tr ia d ic s tru c tu re th e ch u rch esbelong, is not u n d e r co nsidera tion . As long as th e c h u rc h does not lay any to ta lita rian p o litica l c laim , it may find ita p lace in th e th ird se riee , th a t ia to say . th e sp h e re of autonom ous ad m in is tra tio n ; b u t if i t lays th s po litica l claim to to ta lity , th a t w ould mean th a t i t c la im s to assign to th e State, th e M ovem ent, and the People th e ir poaition on its ow n . and to d isc rim in a te on i ts ow n betw een th e frien d and th e enem y of the People.

18

a guarantee of the territorial and political sta tus quo. This m ust benefit the very statal character of the individuai m em ber-state as a political unity, and in this way, render the statal unity of the whole German people relative, not only in a confederation, but also in a form ation built up as a federal State. For this reason, in case of conflict, some skilful advocacy would not find it difficult to contrive 'a law for its own policy’ by referring to the ’federal basis' o r to the 'essence and concept' of the federal State. The w ritten statements and the summings up of the Leipzig trial of the Braun-Severing-H irtsiefer Prussian governm ent and of the Held Bavarian government, respectively, and the pronounce­ment of the Supre C ourt of 25 October 1932 contained fine examples and evidence of such 'endless stipulation of federalism '.* The true value of the achievement, which the law on the Reich Governors is, becomes evident only against this background of the pre-N ationai-Socialist world of ideas of the m ulti-party federal State, although given the fast process of development of the ' German unity nowadays, perhaps it might appear already out of date. ® ®

Indeed, after this law, it is no longer possible to designate the provinces as States, unless the concept of State transform s itself essentially once more, as it did once, previously, after 1871. Perhaps one m ight try to remove the 'political' tra it from the concept of State, and thoroughly 'depoliticize' the province-States, as sovereignty, its characteristic feature, was removed after 1871, in order to preserve the provinces as States. Considering the changeability of w ords and concepts, it would not be un­thinkable to designate lands or provinces as 'S tates', ju s t as the political unity o f the 'United States o f America' is made of 'S tates'. The term 'State' would then convey a certain autonomous structure and decentralization within a political unity. But today it is m ore im portant to make sure beyond any doubt that the territorial structures inside the Reich submit absolutely and unreservedly to the political leadership of the Reich, and that they cannot claim a right to their own policy under any form, above all under the

STATE, MOVEMENT, PEOPLE

* A ccording to th e R eich Com m ieeioner for Ju e tic e , S tate M in is te r Dr. P rank a t th e Reich Congraa» o f th e P arty In 1 9 3 3 , in JarittiM che W o eh anaehnh , 1933, p- 2 0 9 1 .

19

until now extremely dangerous pretext of the 'apolitical character* of an issue. For our present-day German notions, the idea of a 'depoliticized State' is as impossible as that of a 'demilitarized arm y'. Indeed, the German prov­inces enjoy certain powers that belong to the 'authority of the State'. Thus, they do have State authority; but under no circumstances are they 'States'. German State is only the German Reich. The Reich is a composite formation of largely autonomous lands o r provinces, but it is not a 'federal State'. The noxious concept of the nineteenth century, which conceptually dam ps together federation and State and so makes a non-State of the Reich, m ust disappear from internal German law. W hether the term 'federalism' should be maintained is purely a practical question of terminology. As long as there is the danger that confedera­tion and federal State might be regarded as equivalent, in virtue of the old thinking habits of the nineteenth century, it would be better to avoid this word which is so much misused. Let us not forget what is said in Adolf Hitler's book M y Struggle about ‘federalism as m ask'.**

The developments started with the law of 7 April 1933 on the Reich Governors .have not come to an end. The Leader's statements at this year's Party Congress in Nurem­berg are known. The political unity of the German people does not re s t upon the German lands or the German tribes, but upon the the self-contained unity of the German People and of the National-Socialist Movement, carrier of State and People. There is no longer any constitutional guarantee of the territo ry o r the existence of today's provinces. Nor can it be by any chance inferred in a roundabout way from the proviso for the institution of the Reichsrat, included in the constitutional law of 24 March 1933.*®

The present German lands o r provinces, as well as those that might be formed, are structures of a particular kind and of a type utterly autonomous. They are neither States nor bodies of communal auto-adm inistration. I would like to limit the notion of communal auto-determ ination stric tly to the auto-administration o f local neighbourhoods (rural and urban, departm ent, and rural district), because one is dealing with territorial corporations, and in res t, to relate the auto-adm inistration to professional and similar organizations whose place in the overall framework of the

STATE, MOVEMENT, PEOPLE

20

National-Socialist fabric is marked out closer to the series ¡'People'.

* 4. An entirely new sequence of questions concerns thelegal relations between the State and the Movement. Despite some isolated similarities between the National-Socialist State and the Italian Fascist State, a great difference has come to the fore regarding the relationship between the Party and the civil service, the Party and the arm y, the Party and the head of S ta te . Since the law of 14 December |1929, the Fascist Party is indeed 'an organ o f the S tate ' (un iorgano dello Stato), but not an unmediated public o r State organ. Such a State organ (organo statale) is only a certain organ of the Party, namely the Grand Council of Fascism {il Gran Cosiglio del Fascismo; see Santi Romano: Corso di diritto costituzionale, 4 th ed., 1933, p. 127).*® The National Socialist German W o rk e rs ' Party, as carrier o f the idea o f the State, is equally and indissolubly linked to the State. But neither the Party organization as a whole, nor a certain authority as su d i have the character of an unmediated 'State organ' today, 1 December 1933. I t goes without saying that the N ational-Sodalist Party is in no way a 'party ' in the sense of the now superseded pluralistic- p arty system. I t is the leading body that carries the State and the People. The law of 14 July 1933 against the recon­stitution of parties secures this unique and exdusive p re f- rential position for it against all attem pts to revive the previous confessional, d ass , o r other kinds o f pltiralism. According to the law to secure the unity of Party and State o f 1 December 1933 (RGBl. I, p. 1016), the Party is a co r­poration of public law, and in fact, in another and superior way than any of the many corporations o f public law, which are under State control. The Leader's Deputy and the Chief of Staff o f the SA®’ become members of the Reich Cabinet in order to guarantee the d o ses t cooperation of the services o f the Party and the SA w ith the public bodies. W ith regard to their special and lofty duties, the members o f the Party and the SA are subordinate to a spedal jurisdiction of the Party and the SA. The link with the State is based mainly on personal ties, with which the heads of the different organizational series bind each other no t in a capricious, casual manner, but on the real foundation o f the general fram ework of the poUtical unity. These personal ties have

STATE, MOVEMENT, PEOPLE

21

already to some extent acquired an institutional character: the Leader of the National-Socialist Movement is the Chancellor of the German Reich; his paladins and subleaders occupy other offices o f political leadership, such as Reich M inister, Minister President of Prussia, Reich Governors, M inisters of Prussia, Bavaria, and so on. In addition to these personal ties, there may be typical means of contact between the State and the Party, certain possibilities to influence, particularly of a personal kind (rights to propose, nominate and recommend for regional o r local Party offices). All fu rther ties and delimitations - even the fundamental compatibility of Party office with State and auto-adm inistrative posts, o r the opposite, that is, their fundamental incompatibility - are a question of expe^ency. B ut the organizational basic lines are set by the State, Movement, People triad, consistently in agreement with the logic that State, Movement, People are distinct but not divided, linked but no t fused.

The link between State and Party cannot be grasped by means of notions used until now when talking about State and non-State, party and non-party. All the interferences b y the courts, based on such alternatives, in State and Party m atters (interventions corresponding to the liberal ideal of the incessant legal quarrels that take place to establish the tru th ) are in conflict w ith the triadic State structure. It will be necessary to ensure a clear delimitation o f the various spheres by means of w ell-tried practices, such as that o f the so-called conflict inquiry [Kordliktserhebung], and to p re­serve the courts from the dangers of the political sphere, in the interest of their independence. Because it seems likely that the open and the hidden enemies of the new State will make use of the old political means to represent some issue as 'a purely legal m atter' in order to drag the State and the Movement into court, and in that way - through the equalization of the parties inherent in the logic of trial procedure - to put on an act that they are on a par with the State and the Movement. A right to veriHcation, as the courts have assumed in relation to the laws of the Reich (Ruling of the Fifth Civil Senate of the Reich Court of 4 November 1925. RGZ.** Vol. I l l , p. 320f), is out of the question as far as the government laws of the Reich Government are concerned. F irst of all, because these

STATE, MOVEMENT, PEOPLE

22

I

législative powers of the Reich Government have a constitua '^ n á l character, secondly, this legislation by the Govern­ment is a t the same time a m atter of acts of a governm ent iwhich through the righ t to legislate has restored the true 'donCept of ' g o v e r n m e n t ' , a n d thirdly, such an in terfer- ehce by the courts could be justified only by the dual view á State and non-State (to dwelt upon in Chapter III), jrhich is incompatible with the new triadic overall structure

the political unity.: Hence, nowadays, it would be dangerous and mislead-

jag to keep using the old distinctions between law and Í^Utícs and to put such alternative questions o f statal and àoii-fstatal, public or private, judicial o r political. We are cionfronted by a completely new problem of State law. The Ñational-Sodalist Party is neither a State in the sense of the old State, nor is it non-statal and private, in the sense of the old juxtaposition of the State sphere and the S tate-free inhere. Nor can the criteria of responsibility, particularly of

collective responsibility fo r abuse of office (Article 131 of the Weimar Constitution, §839 of the German Gvil Code)^° be applied to the Party o r to the SA. The courts are just as little perm itted on any pretext to in terfere in the internal problem s and decisions of the Party organization, and violate its leader-principle from without. The in te rn ^ organization and discipline of the Party, carrier o f State and People, are its own business. I t m ust develop its own standards on its own stric test responsibility. The Party offices, on which this duty is incumbent, have to make use of a function on which no more and no less than the destiny of the Party depends, and with it also the destiny o f the political unity of the German people. No other authority , and least o f all a bourgeois ju d i< ^ y moulded procedural court, can take from the Party or the SA this colossal task which also amasses all the risk of the political. Concerning this m atter, it is entirely self-reliant.

n STATE, MOVEMENT, PEOPLE

23

STATE. MOVEMENT. PEOPLE

III

THE BINARY STATE CONSTRUCTION OF LIBERAL DEMOCRACY AND THE GERMAN STATE OF

THE a V IL SERVICE

1. The new triadic State structure of the twcntiethj century has long superseded the binary statal constitutionaij schema of the liberal democracy of the nineteenth century.^ The bourgeois legal State of the 1800's was ruled by thaij duality right into the specificity of its legislative, admin4 istrative and judiciary organizations, and even into the last] ramifications of seemingly quite abstract theories andj conceptualizations. This is expressed 'ideologically' (al specific and typical term of the liberal nineteenth century) ini the well-known and much-cherished antitheses, exchange-] able and negotiable, now 'oscillating', now alternative.] between law and force, law and State, law and politics,] intellect and power, intellect and State, individual andj community, S tate 'and society, and so on and so forth . Still,J the binary division has a very concrete constructive and! organizational significance. I t has succeeded in creating a 'practical arrangement' of its own, to borrow a pithy expression of the Reich Commissioner fo r Justice, Dr. F rank (Juristische Wochenschrift, 1933, p. 2091), com-: m ensúrate with its intellect. The subsequent effects both of ] the liberal 'ideology' and of the binary State structure have until the present day dominated the legal thinking, as well as the manner of speaking of the jurists brought up in the liberal system. The liberals call a 'legal s ta te ' only the dually built State. A differently built State 'has no constitution ', is n o t a 'constitutional State', and naturally, is not a 'legal S tate ' either, it is not 'free', but an 'autocracy*, a 'd ictatorship ', a 'despotism ', and so on. The vocabulary of this political struggle is quite extensive on this point, bu t in fact, it is always the same in its political exploitation of a c e r t ^ concept o f 'law' and of 'legal S tate '. Hence, it is necessary to become aware not only o f the ideological contradiction but also o f the State structure erected on it,

24

and of its institutional and conceptual constructs. Otherwise, the liberal outlook first forces the Movement into the State, and then by way of the 'legal State’, the State into a 'law' opposed to the State, that is to say, into the liberal system of the nineteenth cen tu ry .* ’

The duality rests on the contrast between the State and the free individual person, between statal pow er and individual freedom, between State and S ta te-free society, between politics and the apolitical private sphere, therefore irresponsible and uncontrolled. This division explains the typically binary constitutional schema of the bourgeois legal State, the constitution of which, as it is known, consists of a basic legal part, namely, basic rights and freedom s o f the society composed of free individuals, free in the sense of no t statal and not 'constituted ', and o f an organizational p a r t that establishes norm s constitutive of and holding together the State. The p art consisting o f the liberal basic righ ts is no constitution m the organization^ sense. On the contrary, it designates a non-constitu ted self-organizing sphere of freedom. Against it stands the organizational part o f the statal constitution, the constitution of the State, that is to say, the commitment, delimitation and restric tion of the political power of the State. The so-called 'precedence of the law' over all the other kinds of statal activity aims a t the political subjection of the State to the allegedly apolitical society, because in that ranking system, the law is essen­tially a decision of parliament, but parliam ent is the representation of the non-statal society against the State. The universally recognized organizational principle o f the so-called division of powers into three p arts , the legislative, the executive, and the judiciary, had the same political sense, namely, to divide the State power in such a way as to allow the non-statal society to rule and effectively 'control' the State 'executive*, that is, the reality o f the State command. Everything was set to regulate and control the political power of the State and to shield the freedom of the sphere o f society from the 'encroachm ents' of the State. A judiciary independent of the State was expected to lend legal and procedural safeguards to the protection against the State. In that constitutional system, the judiciary had organizationally an interesting intermediary position between the command mechanism of the State and the S tate-free

STATE, MOVEMENT. PEOPLE

25

social sphere of society. On the one side, it was a State offícialdom. and on the other, it was independent of the official directives coming from State superiors. F or that reason, it was a suitable tool for p o li t ic ly inñuencing the State and holding it in the palm of one's hand, in the name of the 'law*.

The basic rights and freedoms of the statal and con­stitutional system of liberal democracy as such are essentially rights of the private individual person. Solely on those grounds may they be considered 'p o litic a l'. There­fore, they are neither a State-building principle nor a constitution, but only principles that bear upon the State constitution, and which should lend the State meaning and purpose, its justification and its limits. The liberal s ta t^ and constitutional structu re thus recirons with a simple and direct confrontation between the State and the private indi­vidual. Only starting from this confrontation, it is a natural and sensible attem pt to erect a whole edifice out of the protective legal means and institutions, in order to protect the helpless and defenceless, poor and isolated individual person from the powerful Leviathan, the 'State'. ̂*M ost of the legal safeguards of the so-called legal State have sense only with regard to the protection of the poor individual. It justiiies thereby that the protection against the State will always be shaped by justice and will resu lt increasingly into the ruling of a court judicially independent of the State.

But all this becomes quite absurd as soon as strong coJJective formations or organizations occupy the non-statal and apolitical sphere of freedom, and those non-statal (but by no means po litica l) 'auto-organizations' will on the one hand compress the individual persons ever tighter and more forcefully, and on the other, challenge the State under various legal titles (such as people, society, free citizenry, productive proletariat, public opinion, a .s.o .). Then the political powers take cover in every conceivable way behind the ram part for safeguarding the individual freedom of apolitical individual persons in need of protection. Non- statal but, as already said, entirely political formations then dominate both the will o f the State (by way of legislation) and also (through societql constraint and the force of . the ■purely private law') the individual person whom they mediate. These become the true and real vehicles of the

STATE, MOVEMENT, PEOPLE

26

!!jpblitical decisions, and wieiders of the statal instrum ents of power, but they will m aster it from the non-'public'

^individual sphere, free o f State and constitution, and in this way, evade any political risk and responsibility. In the State cdnstitution of the liberal-dem ocratic legal State, they can legally never appear what they are in the political and the Mdal reality, because the liberal binary schema has no place for them. Every attem pt to insert them makes the liberal-

P d^ocra tic State and its system burst. Consequently, if such formations succeed in seizing the positions and the means of State power by way of the political parties dominated by them - and that is the typical development - , then they look after their in terests in the name of the State authority and of the law. They enjoy all the advantages of the State power without relinquishing the advantages of the sphere of freedom, politically irresponsible and uncontrolled, because ostensibly apoliticd.

The pluralist system of a m ulti-party State may exist behind the veil of the liberal-dem ocratic freedom and o f the bourgeois legal State as it has been typical o f the fourteen years of the Weimar Constitution, A number of political parties o f the m ost varied kinds, trade-unions and powerful economic associations, churches and religious societies, solid and even self-contained organizations of national, confes­sional or other kinds would come to an agreement in secret on the exercise of the State power and on the repartition of the national income. As it may saud of the ideal democracy) that it rests on a 'daily plebiscite',*^ in the same way, it may be said of such a pluralistic system that it is integrated and able to exist only by the 'daily compromise' of heterogeneous powers and alliances, a compromise that is 'always a commitment of the better to the w orse ', as ap­propriately once said by a Nationai-Sodalist (Karl Fiehler, Nazionalsozialistische Gemeindepoiitik [The Local Policy of National-Sodaiism], Munich, 1932, p. 12). In virtue o f its internal logic, the constitutional law of such a system m ust be a purely instrum ental, technical weapon which everyone wields against everyone else, the alien and the enemy of the State against the comrade of the people, as well, so that all the partidpants in this system are compelled to an inevitable abuse of alJ the legal resources. Groups and resources, that remain in a minority and do not manage to join a m ajority

STATE. MOVEMENT, PEOPLE

27

STATE, MOVEMENT, PEOPLE

coalition or strike a deal by compromising, are obliged out: o f necessity to defend their goals and principles, howevef| illiberal o r antiliberal, against the State by means of liberal-] democratic arguments and methods. All the concepts and| institutions of such a system cannot but become f^ s e and| absurd. In 1932. I observed that the power o f th ^ governments of the Weimar coalition did not re s t on theirj legality but on the political exploitation of the political! advantages of the leg ^ holding of power. All the political] factors, majority o r m inority formations, governm ent aslr well as opposition, national o r international parties, loyal o r! inimical to the nation, recklessly take advantage o f all thefi legal possibilities and o f all the positions of power they-t occupy in such a statal and constitutional system, because ] the constitution had become simply a functionalist, n eu tra l means, and the survival of the political unity of the people - a mere waste product o f the 'd ^ y compromise'. The binary structu re o f the ensuing 'legal State', resting on the opposition between the State and the individual, is and^ remains utterly inadequate and incommensurable to the very ̂reality o f a social and political life that is ruled by politically ] powerful non-statal o r suprastatal organizations. I t is : capable o f distinguishing only between legality and illegality bu t neither between righ t and wrong nor between friend and enemy.

Two illustrations o f the discrepancy between every liberal-dem ocratic constitution and the reality of the s o d ^ and political life o f today may render this situation relevant.

a) Full as it is of internal contradictions, the second main p art (that on basic righ ts) of the Weimar Constitution cancels i t s ^ out, and the H rst, organizational p art, as well. The Weimar Constitution had been worked ou t dually, in accordance with the liberal-democratic schema. But under the title 'Fundamental Rights and Obligations of the Germ ans', the second p art includes the liberal freedom s of the individual person only in the smallest degree. Besides, this part of the Constitution likes to render justice to the reality o f today's social life. As a result, num erous other dispositions of this 'basic rights part' guarantee and firmly fix things that are in contradiction with a liberal-democratic constitutional construction, such as public-law institutions

28

vid claims o f churches and religious societies (Article |l37f), * * the public-law institution of the career dv il MTvice (A rtid c 129), * * and likewise, the public-law insti­tution o f communal auto-adm inistration (Article 127).** Moreover, w orkers' unions and employers* assodations are

so acknowledged in this p a rt of the Constitution (A rtid e 165), * although they have so far preferred technically to emain private-law organizations or even no t Jegally-

Jqualifying form ations. That such strong collective forces l^ave come to be 'acknowledged' in a State constitution, and | in spite o f all that, still want and juridically can remain Iprivate-law assodations is symptomatic of the confusion in |th e essentials o f such a State. But, nonetheless, the llremaining public-law institutions, featured in the so-called Ipart o f basic righ ts - churches, corporations and the career j;dvil service - would no t be able in any way in such a I system to stop making the widest use o f the various I political parties, on the one hand, and on the o ther and at ; the same time, o f the o ther private-law supports and relief I organizations. Not only political parties b u t also a powerful : private-law confederation o f countless religious and cultural assodations and d u b s , some integrated, som e perm itted , and some at least tolerated, linked up with and leaned upon the churches. Corporate bodies and local assodations knew how to manage economically, with the h d p o f all kinds of legal persons endowed w ith dv il and commercial rig h ts , and évade State control. Big private-law unions o f dv il servants came into being alongside of the public-law institu tion of the dv il service. Ultimately, that pluralistic State consisted only of cross-sections and an aggregation and amalgama­tion, that was based on prindple, of public and private interests and functions. In such a system , one may simul­taneously be a Reichstag deputy, a Reichsrat delegate, a State o fn d a l. a church dignitary, a party leader, and a member o f the supervisory board of various societies, and many o ther things. Indeed, this rem vkable system functions on the whole only by means of such transversal connections. In that way, everything was reconciled with everything else and Germany was 'the realm of unlimited compatibilities'. Behind the duality of the liberal-dem ocratic constitutional schema, an anarchical pluralism of social forces would grow rankly, into a chaotic jumble o f the statal

STATE, MOVEMENT, PEOPLE

29

STATE, MOVEMENT, PEOPLE

and non-statal, the public and the private, the political an( the fictitiously apolitical.

b) Another graphic illustration of the inadequacy o the binary constitutional schema is offered by the sto ry o thè plan fo r an economic constitution which was also fìrml) 'anchored ', so to speak, in Article 16S, a t the end of the baslc-righ ts p a rt o f the Weimar C onstitution.^* In liberal-dem ocratic binary system , an economic constitution is an Impossibility. E ith ^ it is achieved indeed, and in that case, it unhinges the whole binary system , o r it is practically insignificant, additional construct, with devices similar to those o f the provisional Economic Council o f the Reich, introduced by the decree of 4 May 1920, and which has remained w ithout any significant practical result. I t was n o t so much the deliberate ill will of all the interested parties o f the pluralistic system , as much as the conse­quence o f the internal logic of the Weimar liberal- dem ocratic State, that the repeated attem pts to introduce a real and definite economic council of the Reich would faU dismally. A sodai o r economic constitution is possible only in a triadically assembled State. * *

2. N ot only are we today aware o f the internal contradictions o f such a pluralistic system that occurs behind the legality of the liberal-dem ocratic constitutional system , bu t we experience already beyond i t that our triadic S tate structu re , when compared to the liberal-democratic duality (o f State and society, o r State and the sq>oliticai sphere o f hreedom), is the self-evident prem ise o f political honesty and decency. M oreover, the duality seems to us a disguise and concealment o f forces and pow ers, non-statal b u t certainly no t apolitical, ra ther suprastatal, also often inimical to the State, forces which under the protection of 'liberal freedom ' can play th d r role of a politically dedsWe m agnitude, in secret, anonimously, invisibly and irrespons­ibly.

Today, we recognize those magnitudes and organiza- ions, genuine carriers of the State, through all the disguise o f freedom and equaHty, even in the earlier political form ations and institutions. Because the p ast receives its light from the p resen t and every knowing mind is a contem­porary mind. Thus, we see now that many a time and in certain S tates, the church, fo r instance, with its d ergy o r a

30

governing order, would assume the role o f S tate-carry ing organization. Tn other cases, this function m ight be exercised by a secret order like the freem asonry. In m aritim e and mercantile States, the economy or a certain professional organization with its own jurisdiction would m ore often take charge o f the public order o f the political unity . Many cross-connections are conceivable. But given the presen t-day condition of our political awareness, we will always come back to that triadic struc tu re and to the question o f the S tate-carrying organization, while we take the liberal-dem ocratic constitutional schema of State and the individual, organizational norm s and freedom s fo r a façade only. Thus, both the action and the task o f Germ any's N ationai-Sodalist Movement appear ever g reater and awe­inspiring. It openly stands by its historical responsibility, and with all publidty, takes on the gigantic perform ance of an organization that carries the State and the People.

As concerns the evolution of the German theory of the State particularly, i t is d e a r that the historical peculi­arities o f the German d v il service and o f the army, as also of the organization of the N ationai-Sodalist Party , and likewise, of the social and economic spheres are especially g rea t and incomparable in Germany. Similarly, and as already mentioned, the German theory o f the State until the middle o f the nineteenth centimy, that is, to the v ictory of the liberal mode of thinking and o f an unsdentific positivism had had no knowledge o f the binary schema o f the contrast between State and sodety . Recording to Hegel (The Philosophy o f Right §250f), fo r instance, the 'corporations' constitu te the transition from the bourgeois society to the State. * ° F o r him, the State is no t a bureaucratic machine, on the one side, and a free bourgeois society, on the other, at all. Likewise, in 1865, in his adm inistrative th eo ry '(I , p. 266), * ’ Lorenz von Stein emphasized alongside o f the governm ent administration, as the ofHce o f authority , the auto-adm inistration of d istricts, communities and corpora­tions, and the assodations assigned by him to the sphere of the public law, as integral p a rt of public life. A fterw ards, certaW y, these insights into the structure o f the S tate were lost in the so-called 'theory o f sodety ', and since about 1890, only the blindness and the imconnectedness o f the so - called positivism prevailed. A professor of State law, an

STATE, MOVEMENT, PEOPLE

31

alien to the German nation, could dismiss the w ork of a Lorenz von Stein as 'muddling cleverness'- But behind the façade of the binary liberal constitutional State, of which the positivist theory of public law is part, the German State remained a State o f soldiers and civil servants, thus an adm inistrative State, even in the liberal nineteenth century. On this historical fact re s ts the ultimate and true meaning of the familiar words u ttered by Otto Mayer: 'The constitu­tional law wears out, whereas the administrative law abides.' These w ords express the superiority of the monarchical officialdom, representing the executive power, over the liberal constitutional system more to the point than their author himself had perhaps wanted to believe.

Above all, it was decisive that the German army and civil service in m ost o f thd German States, and particularly in Prussia, the leading German State, had alone fo r a century carried out the function o f the State-carrying stratum . The State power machine and the S tate-carrying organization were concurrent. The German officialdom has never become a m ere bureaucratic 'machine' in the sense curren t in the W estern liberal democracies. About this of­ficialdom O tto Mayer rightly rem arks that it was 'tru ly and above all. a cultured career civil service that filled all the authoritative positions, and was no tool but a free-standing power inside the State'. That is the historical reality which had found a theoretical and philosophical system in Hegel's philosophy of the State, in his theory of the State as realm of objective reason. Under the pretext of positivism, the German theory of public law, though, had indeed abstained just as soon from any scientific attem pt to penetrate and explain this situation. Only in the teachings of the German historians and of the economists of the past generation, such as, fo r instance, Adolf Wagner®^ and Gustav Schmoller, was the g reat German concept of the State preserved while the ju rists betrayed it. Even if 'historically' relativized, there remains the living consciousness that the State of the cultivated, uncorrupted German civil service stands 'above the bourgeois society'. I t was in that way that a socially and culturally political State of the civil service became possible. But that was not enough to sustain intellectually a State that was threatened froi;n the inside as well as from the outside. Within half a century, with its

STATE. MOVEMENT, FBOPLE

32

¡almost exclusively legal training, our German civil service ¡has withered 'intellectually and politically in a supposed I'positivism '. Hence, it has become incapable of carrying out : the decisive tasks of a politically leading stratum .

As long as the German State of soldiers and civil servants was a reality, and as a consequence, the State could be regarded as a sphere of 'objective m orality and reason* that stood over society, it was possible to have a socially and culturally political State of civil servants, which a t any rate, was not a simple tool in the hands of foreign 'societal' forces, whether open o r secretive, visible o r invisible. The reality of such a State of soldiers and civil servants, however, would continuously h it out a t the prevailing system of norm s and all the principles o f the liberal- democratic constitution, well, a t the whole 'constitutional­ism ' of the nineteenth century. The extraordinary political success scored by Bismarck between 1866 and and 1871** m ight blind one to the fact that from 1848 on, the German State of civil servants had been intellectually on the defen­sive. The German doctrine of State and law was neither the m ixture o f rhetoric and sophistry with which the Prussian conservatives were supplied by Friedrich Julius Stahl - his real name is JoU Jolson - , nor the cynical positivism of a Laband. Notwithstanding all the obvious contradictions, they would all ultimately become the forerunners o f the advan­cing political forces and powers of liberal democracy in the name of the 'legal State' and of Marxism, following directly in its steps.

Indeed, not even the liberal-dem ocratic Weiinar Con­stitution and the fourteen years' rule of a pluralistic party system could completely destroy the great tradition o f the German State of civil servants. Likewise, it had become apparent already before the W orld W ar that the German civil service, spread over m ore than twenty individual States, was no longer in the position to fulfil alone both the offices of an objective and neutral adm inistrative machinery and those o f a politically ruling stratum in charge o f the State. It was natural that the civü service would always seek its ti^e worth ra ther in the m atter-o f-fact professional reliability and calculability of an exemplary adm inistrative and judiciary activity than in the responsibility o f political decisions. Because of its objectivity, neutrality and

STATE. MOVEMENT, PEOPLE

33

positívísm , it was no longer by itself capable of recognizing the State enemy, o r what was more, of defeating him, with clear political determination. It became ensnared in a posi- tivistic legal constraint which in the end was reduced to the legality o f a positivistic legislative State, and the foundation o f which, the law, had .too little to do with 'justice' in the practical and substantive sense. Then, that law was indeed only the compromise reached by a heterogeneous coalition. Thus the claim of the parliamentary parties to political leadership met no serious resistance. During the W orld W ar, a group of poUtidans from the parliamentary parties could infiltrate the German State without any credentials of political achievement, accepted only because of the need to fill the void of political leadership somehow. Between 1919 and 1932, after the collapse of the monarchical State o f dvil servants and in the m ulti-party State of the Weimar Constitution, the German civil service found its justification only in a negotiated settlement and a kind of neutral position o f referee between the organized party interests. It stood no longer above society but rather between the layers o f society. In that way, however, it got caught in the game of the pluralistic system . In order to survive in the long run . it had to become playmate and political accomplice in the traffíc of mutual concessions, and as a result, had to renounce its essence, and expand the pluralistic system by another magnitude. Finally, the best-intended 'neutral accommodation', even if morally superior to a system of internally corrupted parties, could be only a poor and insuffícient substitute fo r the missing political leadership. Neither the neutral dv il service nor the pluralistic party system and its parliamentary operation have accomplished their statal tasks, and produced a political leadership from their ranks. In this, they have failed utterly .

N ot until the experiences of 1932, would thisrealization also p ro fit the great majority of the Germanpeople. The Prussian coup of 20 July 1932 has removed the governm ent of the Weimar system from Prussia and taken from its hands the Prussian State, a strong power complex and command mechanism. ̂* But neither of the ostensibly 'authoritarian ' governments of von Papen (between July 1932 and November 1932) and of Schleicher (betweenNovember 1932 and January 1933), leaning only on the

STATE. MOVEMENT, PEOPLE

34

Military [Reichswehr] and on the machinery of the Prussian State power, could'fill the political vacuum, created by the absence o f a political leadership. In his work, published in 1932 and entitled Der VerfassungskompromiB von Weimar, das Experiment der Prasidialregierung und die national- Bozialistische Staatsidee [The Constitutional Compromise of Weimar: the Experiment of the Presidential Governm ent and the National-Socialist Idea of State], Paul R itterbusch has shown the desperation at that stage in the evolution of pluralism, from the standpoint of the theory of State and law. The Supreme C ourt’s decision of 25 October 1932 admittedly did not restore the Weimar system , nor could it

¡ give the Reich government what it needed and what it did : hot dare to seize. * * That decision also refused to recognize

the enemy of the State for enemy of the State and help to render him harmless. Not until 30 January 1933, when the Reich President appointed the leader of the N ationai-Sodalist Movement, Adolf Hitler, Chancellor o f the Reich, did the German Reich recover a political leadership, and the German State found the strength to crush Marxism, its enemy.

On this 30 January, the Hegelian State o f dv il servants of the nineteenth century, characterized by the identity o f the dv il service and the stratiun in charge o f the State, was replaced by another State construction. There­fore, on that day, one could say: 'Hegel died'. But that does not mean that the great work of the philosopher of the German State has become meaningless, and that the idea of a political leadership standing aboye the selfishness of sodetal interests has been abandoned. That which in Hegel's massive mental constructs is tunelessly great and German, remains effective in the new form . O ^ y the form s o f the Hegelian State of dv il servants, that corresponded to the internal situation of the State in the n ine teen^ century, are eliminated, and are replaced by other form ations corres­ponding to our reality of today.

Today, the German Reich, the political unity o f the German people, may be grasped only with the help of the triad of State, Movement and People. The enormous political task of the Nationai-Sodalist Party can be recognized only in this way. The German career civil servant is freed from a hybrid position grovm obscure and unsustainable, and is spared the risk of being debased, in the liberal-dem ocratic

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35

way, to the level- of a blind tool of non-statal, societal powers, that is to say, politically irresponsible, invisible. On] the other hand, the task of the Movement does not exhaust itself in supplying new blood to the stiffened body of a State o f civil servants, and then just resign when it fades into the. 'S tate'. The three great 'flywheels', as the M inister President o f Prussia Gdring once called them, m ust discriminate but not divide, unite bu t no t fuse, run one next to the other,: each according to its inner law, and all in unison with the political whole. * ®

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IV

LEADERSHIP AND ETHNIC IDENTITY AS BASIC CONCEPTS OF THE NATIONAL-SOQALIST LAW

1. National-Socialism does not think abstractly and stereotypicaUy. I t is an enemy of every norm ativist and functionalist concoction. I t secures and ciiltivates every true national substance wherever it encounters it: in country, kin o r kith. I t has established the law on inherited peasant estates [Erbhofrecht]; it has saved the peasantry;** it has cleansed the German dv il service of alien elements, thus restoring its station.®* I t has the courage to handle differ­ences differently and to carry through necessary differentia­tions. So wherever it makes sense it will acknowledge the jurisdiction of a drumhead court m artial, as it has reintroduced it fo r the arm y, through the law of 12 May 1933 {RGBL I, p . 264), on the basis of the regulations of the old army criminal court.®* Likewise, with regard to certain organizations of the Party, such as SA and SS, a spedal kind of disdpline in the ranks may be conceivable through the jurisdiction of improved courts m a r tia lf ’ The scope of the authority o f the summary court martial will expand on its own, with the formation of genuine ranks. In a different way, bu t with the same sense of its own concrete grow th, National-Socialism may administer justice in the sphere of communal auto-adm inistration, with objective

36

differentiations between village, country-tow n, industrial town, big c ity and m etropolis, without being em barrassed by the false notions of equality of a liberal-dem ocratic schema.

a) The acceptance of the manysidedness of spontan­eous life might lead again vnthout delay to an unfortunate pluralistic splitting of the German people into denomina­tions, tribes, classes, estates and interest groups, unless a strong State uplifts and guarantees the whole of the political unity over the m ultitude of form s. Every political unity needs a coherent internal logic of its institutions and normative systems. I t needs a unitary idea of form to give a general shape to all the spheres of pubhc life. In this sense also, there is no norm al State which is not total at the same time. However num erous the viewpoints of the regulations and the institutions of the various spheres of life, a consistent main principle m ust be recognized firmly as much. Every uncertainty and every split become a crevice fo r the insertion of form ations f irs t neutral, then inimical to the State, and an unravelling spot of the pluralistic splinter­ing and disintegration. A strong State is the premise of a sound life, characteristic of its different ranks. The strength of the National-Socialist State resides in the fact that it is dominated and imbued from top to bottom and in every atom of its being by the idea o f leadership. This principle, by means of which the Movement has grown great, m ust be applied both to the State administration and to the various spheres of auto-adm inistration, r^aturally taking into account the modifications required by the specificity of the m atter. I t would not be permissible, though, to exclude from the idea of leadership any im portant sphere of public life. ® *

The nineteenth-century German State of the soldiers and the dv il servants, so strong externally, committed the serious political e rro r of allowing another organizational prindple to arise in the communal auto-adm inistration, a prindple different from that of the State 'executive' (that is, of the State itself, as it was then called). The local represen­tation, resulting from elections, would not necessarily be by itself the basis for a split within the State, given the essential dissimilarity between local community and the State. But the elected local representation was perceived as the true carrier and representative of the local community,

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37

precisely because it was elected, and as a result, a formal principle that contravened the monarchical State was acknowledged for the community. Thus the local autonomy became a spot by which the liberal-democratic parliamentary principle broke into the m onarchical-authoritarian State of the civil servants. As early as 1810, Baron vom Stein came to realize that he 'had n o t paid sufficient attention to the difference between constitution and administration'. Under the typical p retext that it concerned itself with the affairs of the 'apolitical' auto-adm inistration, the liberal bourgeoisie would create a sphere o f public law for itself, that would elude the State, and so be 'free of the State', and in which o ther political ideals would count, as well as o ther formal and informal principles than those of the State. A fter­w ards, under the cover o f 'the German law, such notions as the 'idea of association', 'freedom of auto-adm inistration ', 'private business', a legal doctrine, aware of its aim and purpose, eliminated the leader-principle from the essence of the Prussian State. The theory of the equality o f all human associations, particularly with regard to the community and the State, quite efficiently backed the conquest of the Prussian State by means of an organizational principle radically foreign to it.

I t is tru e th a t the German State of soldiers and the civil servants offered a tenacious resistance to the appar­ently irresistible p rogress o f liberal ideas. I t worked out an exemplary organizational interpenetration of State admin­istration and local auto-adm inistration, o f which the Prussian Landrat*^ is the m ost famous illustration. S ^ . the three-class electoral law, which was in force with regard to local elections, * * hindered the ultimate effects o f a sound liberal democracy. Nevertheless, one should not mistakenly think ^ a t the State was not intellectually on a par with its advancing adversary, now national-liberei, now liberal-con­servative, now advocating the idea of association, now communal liberal. Here, loo, though, as shown above (Chapter III, 2), it kept fighting on the defensive. In the long run , it was defeated as a result. I t is not necessary to go to great lengths to show that m atters m ust stand differently in today’s State and administrative law. In a total Stale, a local parliament cannot organize political dem onstrations of p ro test, as was the case’, fo r instance,

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With the 1898 descriptive resolution of the Berlin Municipal Council, which claimed to be entirely 'apolitical', a 'purely auto-administrative m atter', a 'simple act o f piety ', to lay a wreath on the tomb of the revolutionaries of March 1848 (Decision of the Chief Administration Court [OVG] of 9 July 1898), or the quarrel over flags between the State and the town at Potsdam,* which was decided in favour of the town by the judgment of the Supreme Court of the German Reich on 9 July 1928 (Lammers-Simons. I, p. 276).

b) The organizational application o f the doctrine of leadership requ ires. in a negative way a t f irs t that all the methods reflecting the liberal-democratic mentality in their essence m ust be discontinued. The election from below, with all the residues o f the custom ary electioneering, comes to an end. (As shown above, the new elections of 12 November 1933 fo r the Reichstag can be understood only as a component of a popular consultation). * ® Nor even the old voting procedures, with the help of which a majority, formed through a coalition after a so rt, tu rns a m inority into a majority and makes of the division a weapon to outvote and vote down the o th e rs , '* cannot continue o r repeat itself in a one-party State. Finally, the typically liberal divisions and dualisms between the legislative and the executive, and at the local organizational level, between the deliberative organs and the administrative o r managerial organs have lost their meaning. The legislative competence of the Reich Government is a first, path-breaking instance of the removal of those artificial divisions. Everywhere, the system of repartition and discharging o f responsibilities m ust be replaced by the clear responsibility o f the leader who has acknowledged the mandate, and the election m ust be replaced by selection.

The new idea of leader is of a particular and decisive importance fo r the National-Socialist State, and has as its natural complement, the institution of a Council o f the

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* L ik«w iM . in th* H apsburg m onarchy , th a S u u - d ia r u p t iv a forças, p a r tic u la rly th a natio n a lities figh ting th a a u u l e n ti ty , u sed th e local su to -ad m in ia tra tio o aa a gataw sy of incu rsion . T hus, i t h ap panad th a t th a m ayor o f a p ro v in c ia l cap itai forbéde th a arm y to m *rch a long ca rta io a treata in th a c ity . Saa Varw. A rc h iv [A dm in is tra tiv a A reh iv aa], xix (1 9 1 1 ), p. 4 4 8 , for a paaaaga w h ich a lto co n u in a a fin a i l lu s tra tio n of th a m aaning and ataence of th a 'lagal atata*.

39

Leader [FührerratJ. I t stands by the side of the Leader, with advice, suggestions and opinions; it assists and sup-, p o rts him; it keeps him in live contact with his foUowingi and with the people, but cannot relieve the Leader of any responsibility. It is neither an organization o f intimidation, control and transfer of responsibilities, nor m ust it represent an internal dualism (that is. popular representation against the government, local representation against local governing body), and even less a pluralism. Whence, the council o f the Leader cannot be elected from the outside or from below, but m ust be selected by the Leader, according, to distinct principles of selection that f irs t of all take into account the link with the Party organization carrying State and People. In this way, it also becomes possible to give; far-reaching consideration to the particular conditions and needs, lo c^ and regional, as well as practical, and of the various estates. Leader and council of the Leader are kinds o f form ation ju st as simple as they are resilient in their concrete application to the m ost diverse fields of life. They have found their initial, clear and exemplary form in the Council o f the Prussian State, the great constructive work o f the Prussian M inister President Goring. In the Prussian law on the provincial council of 17 June 1933 (GroEer Senat [Fuh Senate], p. 254), the idea is already transferred from the sphere of government to that o f the administration. Today, it m ust win general acceptance and be universally recognized as a principle. * ^

2. In view of the fundamental significance of the idea of leader, it becomes all the m ore necessary to draw a dear, and also a theoretical, differentiation concerning the concept o f leadership, the core concept of the Nationai-Sodalist State law, and to safeguard it in its peculiarity. In order to grasp the full meaning of the concept, and avoid the danger of falsifications and confusions, it is e ssen ü d firs t o f all to distinguish it dearly from other concepts, seemingly related. Because such concepts, which are quite necessary and indispensable in their spheres, bu t are also ^ e a d y im pregnated by m other spirit, have been employed deliberately in order to make them absorb the idea of leader, and in this way, to immobilize its real force. It is generally known that it is characteristic o f the single- minded liberal democracy to see its ideal in the political

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'absence of leaders'. But it has not yet reached the scientific consciousness of m ost of the German jurists that for almost a century, a system of speciHc conceptual constructs had been at work to eliminate the idea of leader and that the lever of such concepts will be placed at the ready above all

• there where they should have a politically destructive and - virtually shattering effect.

The legal State thinking, dominated by the basic principle of security, caiculability and measurability, tran s­formed all the notions, concepts and institutions, under the pretext o f working out legal concepts within normativeJy predetermined abstractions. It would be said, for instance, that; every obligation, if it were to be a legal d u ty and juridically relevant, m ust always have a content that is normatively measurable, and as a result, subject to verification by a judge. In this simple way, another kind of duties, inaccesible to the individualistic liberal legal thinking, is expelled from legal life, and the monopoly of the legal scientifidty is gained by quite a distinct political ideology (which is neither particularly juridical nor particularly scientific). Through this interpretation, the allegiance o f the followers, fo r instance, of the civil service, of the comrades of the people, vital to the law of the leader-State, and which is a legal duty in the full sense of the word, has been reduced to a 'simply moral' o r 'simply political' m atter, and deprived of its legal kernel. A t the Leipzig trial of the dismissed Prussian Cabinet of the Weimar system versus the German Reich, that order of ideas celebrated its triumph.*® The allegiance of the provinces to the Reich, which needless to say, is a legal obligation with a political content, was destroyed in its essence with the help of such a liberal separation of law from politics, and ironically treated by a particularly typical representative of the Weimar system ’ as something 'sentim ental'. In that interpretation, to place the National-Socialists and the Communists politically on a par meant 'law'. To distinguish the communist organization, a dangerous and deadly enemy of the German State, from a German national movement meant but a violation of 'the equality before the law', and a 'political' judgment contrary to a 'legal* or 'juridical' assessment. The anti-statal kernel of the liberal antithesis between law and politics became obvious there. Indeed, in its pronouncement of 25 October

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41

1932, the Supreme C ourt of the German Reich sought to remain strictly 'legal and neutral' even in this respect and to evade a ruling. This is made clear in the following extract, which is word fo r word, sentence for sentence, characteristic of the motives o f decision, in the famous pronouncement:

'The possibility of interpreting such attacks as in­fringement of duty on the part o f the Province cannot fo r that m atter be excluded even when the m inister did not act in his official capacity but as a private citizen or party member. But the examination of Minister Severing's statem ents, even when it was carried out in the light of the then entire situation, established that the border of the required reticence was not transgressed in a manner by which a violation o f duty by the Province against the Reich may be detected therein.'Another example is the concept of supervision [Auf-

sichtj, which in the half a century o f liberalistic praxis, developed into a notion antithetical to the concept of politicd leadership. I t is self-understood that even nowadays there are still a g reat many ways in which the word 'supervision' is used (office supervision of the civil servants, school supervision, ecclesiastic supervision, a.s.o.}, and as such, its sphere of validity remains unchallenged. Likewise, in every kind of leadership, one may still discover some 'supervision'. Notwithstanding, it is necessary to draw clear distinctions between the particular spheres of validity of supervision, and to resist the confusion which centres the concept of true leadership on the concept of supervision.

Bismarck's f e ^ r a l constitution of 18 April 1871 was the constitution of a hegemonic federation; Prussia had the hegemony, that is to say. the political leadership. That was uncontested and uncontestable. But it was not explicitly w ritten in the text of the constitution, and since the concept o f political leadership eluded the mode of thinlung of liberal positivism , this decisive concept of the law of the German federal State was indeed of little interest to the theory of the State law. One would lay oneself open to the accusation of being 'political' and 'unscientific', were one to render justice to the tru th and the reality o f the structure of a

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42

L- federal State wholly and absolutely erected on a hegemonic foundation. So the central concept of that constitution of

; the Reich was left out. On the other hand, the concept of . Reich supervision found an all the more extensive treatm ent

and development. And it is a logical consequence of this i kind of theorizing that the last systematic w ork on the

constitutional law of Bismarck's constitution, the book by H. Triepel, Die Reichsaufsicht (The Supervision o f the Reich] (1917) dealt with it under the aspect of Reich supervision. That a German scholar such as H. Triepel, who had often proven his own sense of the political reality against the norm ativist distortions of the State law, came to lay particular s tress on this aspect, points to the power of suggestion of the habits of the liberal constitutional thinking and to the internal logic o f such ways o f thinking that shifted from leadership to supervision, and fo r which even the execution of federal orders by force was only a case of 'Reich supervision'.

With the advent o f the Weimar Constitution, the trend in favour of the concept of supervision would develop fu rther and perfect itself. The Weimar Constitution is a particularly typical document of the bourgeois legal State, and its ideological groundwork encloses the liberal divisions of law and politics, law and force, intellect and force, a .s .o ., but above all, it has removed the Prussian hegemony altogether, and thereby has completely eliminated that last leading element from what was maintained o f the federal constitutional organization. By the fa9t that this Constitution also replaced the form er Federal Council [Bundesrat] by a Supreme Court, which it allowed to settle federal constitu­tional disputes, as well as those between the Reich and the Provinces by judicial procedure (Article 19),®* it made available to all the interested R eidi-disruptive forces - the political party pluralism as much as the one-State particularism - a new political weapon for the elimination of the idea of political leadership, namely the lawsuit in the Supreme Court. Among the authors o f the Weimar Constitution, there were still some restrain ts against those m ethods. With the increasing difficulties o f the internal political situation, the needs for political leadership made themselves felt even m ore sharply in the practical life of the State. But the prevailing normativism of the then

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43

constitutional science and the absence of any true theory of the State zealously contributed to the juridical transform ation of internal politics. That condition too culminated in a concept of supervision. As its last word, the old theory o f supervision coined the phrase constitutionai supervision (in the article by Johannes Heckel on the decision o f the Supreme C ourt of 25 October 1932, Archiv des öffentliches Rechts [Archive of Public Law], Vol. 23, p. 211). After the concept of 'Reich supervision’ in the federal State law of Bismarck's constitution had been made into a suitable means for the normativist relativization o f the political leadership, the completely normativized concept of 'constitutional supervision' became a reality a t the end of the Weimar system. In the phrase 'Reich supervision’ one still at least could recognize the Reich as the subject of the supervision. Other conceptual constructs, such as school supervision, local supervision, at least include the object of supervision. On the contrary, in the phrase 'constitutional supervision' neither a subject nor an object come to light, bu t only the criterion o f supervision: the constitution. And this concept, otherwise well intended, had to serve as the theoretical basis o f the deciding political authority of every federal system, ultima ratio"^ * of the political unity of a federal Reich, that is to say, the execution of federal orders by force! In this way, the destruction of the political leader­ship readied the highest degree.

Three factors characterize the elaboration and the development of the concept of supervision in the legal State into a true counterconcept, in opposition to the principle of political leadership. The first, its normative bias. That is to say, the concept of supervision is linked to the introduction of a criterion fo r this supervision, regulated in advance, in keeping with the facts of the case, hence measurable and verifiable. All the relations between the supervising and the supervised were subm itted to this predetermined regulation that ignored every concrete situation. Likewise, the vague notions o f such a system of supervision, and even the concept of discretionary judgment, are ruled by this trend. They too have to find the limits, and in actuality a judicially verified limit, in the 'excess of judgment' and in the 'misuse o f judgm ent'. Even the 'prohibition of arbitrariness', which will be interpreted into all these conceiits of supervision,

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has the politicaJ purport to impose the fiction of the calcul­able measurability 'on the basis of previous standardization and the regularization of all mutual relations of super­vision.

The second characteristic feature in the formation o f a concept of supervision antagonistic to the leadership is the tendency to place on an eguai footing the subject and the object o f supervision. It ensues easily, with logical consistency, from the just-m entioned normativism of the theory of supervision. Because as soon as the criterion of supervision, supposedly calculable and verifiable, is established, one may assume from the fiction, that it was already decided and stipulated in advance, what the 'in ter­vention* (this word, so loaded with political polemic, is characteristic of an allegedly purely 'judicial' thinking), guided by supervision, can perm it itself, and what the supervised m ust allow himself to expect. Hence the subject of supervision may any time refer to the norm as the sole authoritative criterion against the supervision. In that case, it becomes apparent that in reality he m ust above all be subjected not to the supervising instance o r to a political leader, but only to an allegedly objective norm ative content verifiable by an onlooking third party. I t becomes further apparent that even the supervisor is subject to the same norm , and consequently, it can be no question at all of leadership and submission, but on both sides, only of an 'objective' interpretation of the norm and of the 'impartial' delimitation of jurisdiction. Consequently, the term s 'super­vising guidance' are wrong, as well, and m ust be replaced by 'the objective validity of norm s' and 'the application of norm s'.

The third peculiarity of this concept of supervision, opposed to that of leadership ensues with the same logic from the two preceding characteristics. If it is a measurable norm and both parties to the relation of supervision are on the same footing in their submission to the norm , it is unavoidable that only an equally 'objective' onlooking third party , that is, an independent judicial instance, should sit in judgment over both parties as the organ of the objective norm . Such a concept of supervision inevitably requires a Judicial instance and the settlement by trial o f all differences between the object o f supervision and the supervisor.

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45

Ultimately, from all these superimposed and extremely varied aspects of the concept of supervision, there appears a judicial instance which has the last word through m ore or less judicial proceedings. The ideas of protection and security, essentially necessary to the liberal concept of the legal State, when taken to their logical conclusion, transform the administrative tribunals for the adjudication o f disputes related to the law of communal supervision into authorities fo r the supervision of the State supervision. The administrative criminsd courts o f the civil service law, which should be strict drumhead courts martial, are transform ed into mere protective mechanisms of the law of adminis­trative supervision. The Supreme or the Constitutional C ourts have been transform ed into an organ fo r the political supervision of the government confined to constitutional supervision. The result is always administration o f the law instead o f political leadership. A trial judge is not a political leader and the methods o f today’s legal controversy are no m odel for the creation o f a leader-State. In a crudal polit­ical case, normalization and decision by trial mean only a commitment of the leader to the benefit of the disobedient. The equalization of the parties only means the equalization o f the enemy of the State and People with the comrades of the State and People. A decision reached by an independent judge means only the submission of leader and follower to a politically irresponsible non-leader.

3. To lead is n o t to command, to dictate, to govern bureaucratically from the centre, or any other kind o f rule you like. There are many form s of dominion and order, even of feur and reasonable dominion and order that are no leadership [Führung]. The domination of India o r Egypt by the English may be justffied on many grounds, but it is something altogether different from a leadership o f the Indians o r of the Egyptians by the English. The exploitation of the form er German colonies by the so-called mandatary powers, in conformity with A rtide 22 of the Covenant of the League of Nations, passes off in humanitarian garb as 'guardianship* and 'education', but is no t leadership, either. Nor are m ost cases of dictatorship, perhaps necessary and salutary, expressions of leadership in our sense. However, we m ust be wary of obscuring and weakening a concept, specifically German and N ational-Sodalist by assimilation

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46

with foreign categories.There are various images and similes that should make

apparent the relationship between dominator and dominated, governing and governed, and it seems to me even more correct from the viewpoint of the legal science to become, aware of the factual meaning of these various designations rather than to speak with the help o f certain conceptual clichés about a 'special' power relation which unqestionably finds its limits both in the predetermined norm and in 'private life'. The Roman-Catholic Church has given to its power of domination over its faithful the image of a shep­herd and flock, which it cast into an idea o f its theo­logical dogma. Essential in this image is that the shepherd remains absolutely transcendent to the flock. That is not our concept of 'leadership'. A famous passage in Plato's Statesman draws various comparisons w orth considering to describe the statesman. Turn by turn, he is compared with a physician, a shepherd and a steersman, ultimately to retain the image of the steersman."^’ As 'g u b e rn a to r,'’ * it has entered all the languages influenced by Latin, those of the Romance and Anglo-Saxon peoples, and has become the word fo r 'government' [Regierung], such as gouvernement, governo, government, or as the 'gubernium' of the form er Hapsburg monarchy. The sto ry of this 'gubernator' contains a good illustration of the way a graphic comparison may become a technical legal concept. Another characteristic image is that o f horse and horseman, which the great French historian Hippolyte Taine used for Napoleon's rule over the French people.’ * It justified the imperatorial stature of that Italian soldier who seized the State o f the French nation, in a splendid manner, because it gives the m ore profound explanation of the internal pressure under which that rule stood: to normalize itself hastily inside and outside through the ever renewed military successes, and at the same time, through recurren t legitimations (plebiscites, Papal crowning, marriage to a Hapsburg princess) and institutionalizations (a new nobility). ’ *

In essence, none of these images comes upon what should be understood by political leadership in the essentially German sense of the word. This concept of leadership comes wholly from the concrete, substantive thinking of the National-Socialist Movement. It is

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symptomatic that every image fails entirely and every fo r­tuitous image is more of. a picture o r simile than the very leadership in question. Our concept is neither necessarily nor appropriately an intermediary image or a representative simile. Neither does it come from baroque allegories and representations nor from a Cartesian idée générale. ’ ® Il is a concept of the immediately present and of a real presence. F o r that reason and as a positive requirement, it also implies an absolute ethnic identity between leader and following. Both the continuous and infallible contact between leader and following, and their mutual loyalty, are based upon ethnic identity. Only ethnic identity can prevent the power of the leader from becoming tyrannical and arbitrary. It alone justifies the difference from any rule of an alicn- transm iued will, however intelligent and advantageous it might be.

4. The ethnic identity of the German people, united in itself, is thus the m ost unavoidable [unumgänglichste] premise and foundation of the political leadership o f the German People. That was no mere abstract postulate when at the Congress of the National-Socialist German Jurists at Leipzig in 1933, the idea of ra<» was time and again highlighted in the Leader's forceful closing speech, in the riveting addresses of the Leader of the German Legal F ront, Dr. Hans Frank, and in the distinguished specialized reports, as fo r instance, that of H. Nicolai. W ithout the principle of ethnic identity, the German National-Socialist State cannot exist, and its legal life would be unimaginable. Again, with all its institutions, it would be immediately handed over to its liberal o r M arxist enemies, now haughtily critical, now obsequiously assimilationist.

The legal scientists of the new German jurisprudence need in particular to become aware of the systematic force of this concept of ethnic identity that pervades all the judicial deliberations. The fiction of the norm ativist commit­ment o f the judge to a law has nowadays become theoret­ically and practically unsustainable in many essential spheres of the life of legal practice. On the whole, the law cannot any m ore Hnd the calculabiÜty and reliability which were p a rt of the definition of the law in the doctrine of the legal State. The reliability and caiculability are not inherent in normalization but in the presupposedly normal situation.

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’ The so-called general cJaiises and the vague concepts have invàded all the spheres of legal life, even the criminal law. from all sides, and in countless circumlocutions: 'faith and fidelity', 'good m anners', 'im portant m otive', 'unreasonable harshness', 'reasonableness', 'particular plight', 'd isp ropor­tionate disadvantage', 'prevailing interests', 'prohibition of abuse', 'prohibition of arbitrariness’, 'claim fo r paym ent of interest' - these are only a few examples of the dissolution of the legalistic normativism. ’ * Such general clauses had in the long run become unavoidable and indispensable. They wholly determined the overall picture of our adm inistration of justice regarding both private and public law. A recently published work (1933) by Law Professor Hedemann of Jena, Die Peucht in die Generalklauseln [Escape into General C auses], produces a great picture of the enorm ous spread of these clauses. In earnest term s, he warns o f the danger of a complete dissolution of the law into normatively vague and incalculable generalities. But I do not believe that the big problem of the general clauses will go away with it. The disintegration and vagueness of all the concepts seem to me by far m ore advanced than Hedemann presents it, especially when considering the available literature of all the branches of jurisprudence. Even 'effective' and 'immediate possession' may be recognized as vague concepts not by some Talmudist but by a highly regarded German law professor as Philipp Heck of Tubingen. In the theory and practice o f law, we have reached the point where the epistemological question is raised with all the practical seriousness: to what extent a w ord o r a concept of the legislator can in a truly calculable way bind the people who apply the law? We have made the experience that every word and every concept soon become contentious, uncertain, vague and unsteady whenever in an oscillating situation they are seized by minds and interests differently conditioned.” Particularly all our administrative law is pervaded by such vague concepts, not no rm - but situation-related (such as 'public order and safety’, 'endan­gering', 'hardship', 'proportionality ', a .s .o .), and also con­cepts such as 'due discretion’, 'arbitrariness', 'prohibition of arbitrariness' are so incalculable in case of conflict that they themselves may turn into the w orst arbitrariness.

Looked at from that point of view, there are only 'vague' legal concepts nowadays. Nobody wants to maintain.

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49

though, that it would be possible to re tu rn to the ancient faith in a safely calculable legal normalization of all con­ceivable cases, with all their facts matching wholly in advance. The fiction and the illusion of a law that would cover all the cases and all the situations matching the facts and subsuming them in advance cannot be revived.'^* The idea of a complete codification o r regularization is hardly feasable nowadays. 'A re tu rn to a strict positivism is ou t of the question’, says Philipp Heck (Jur. W och., 1933, p. 1449), and he is right. Thus, the whole application of the laws stands between Scylla and Qiarybdis. The road forward seems to lead away from the shore and ever farther from the firm land of legal safety and constraints of the law, which at the same time is also the land of the judge’s independence. The road back to a formalistic legal supersti­tion recognized as meaningless and long outdated historically is not worth considering either.

There is only one road. The National-Socialist State has been treading it with great firm ness, and the Secretary of State FreisJer has given it the clearest formulation in the call: 'no reform of justice but reform of ju r is ts '. ’̂ ® If an independent adm inistration of justice m ust continue to exist, even though a mechanical and automatic commitment of the judge to predetermined regularizations is not possible, then it all depends precisely on the breed and type o f our judges and civil servants. Never has the question 'quis judicabit'*^ had any such crucial importance as today. Neither in the liberal-dem ocratic system were ethical and moral require­m ents missing, as concerned the judge's 'creative personal­ity '. But that remained empty declamation, because the 'personality ' was referred to only in general term s, in order to avoid distinguishing between the ethnically identical and the aliens. I t did not mean the concrete German people but only 'persons', serving in this way the liberal individualism. The true substance of 'personality' m ust be secured with all firm ness, and this is inherent in the commitment to the people and the ethnical identity of every man entrusted with the exposition, interpretation and application of the German law. Out of the positive necessities of the scientific legal work, the idea of the ethnic identity will pervade and dominate sül our public law .® ' That is valid fo r the career civil service, as much as for the legal profession essentially

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interested in the creation and the shaping of the law, as well as fo r all the cases' in which comrades of the people become active in the management o f public affairs, the adm inistra­tion of justice and in jurisprudence. Above all, this will guarantee a fruitful collaboration in the constitution of different new 'councils o f leaders'.

We not only feel but also know from the m ost rig o r­ous scientific insight that all justice is the law of a certain people. * * It is an epistemological tru th that only whoever is capable of seeing the facts accurately, of listening to state­m ents intently, of understanding words correctly, and of weighing impressions about people and things properly joins in the law-creating community of kith and kin in his own m odest way and belongs to it existentially. Down, inside, to the deepest and m ost instinctive stirrings of his emotions, and likewise, in the tiniest fibre of his brain, man stands in the reality of this belongingness of people and race. He is not objective whoever with a clear objective conscience believes that he can be so because he has exerted himself hard enough to be objective. An alien wants to behave critically and also to apply himself shrewdly, wants to read books and to write l^o k s, he thinks and understands differently because he is differently disposed, and remains, in every crucial train of thought, in the existential condition o f his own kind. That is the objective reality o f 'objectiv­ity '.

As long as one could be confident that the judge and even the administrative official were .only a function o f the norm ativist legality, only the familiar 'law-applying autom aton', a simple 'concretization of abstract norm s', could one ignore the tru th that all human thinking is bound to existence as every standardization and interpretation of facts are bound to the situation. M ontesquieu's famous sentence that the judge is 'only the m outh that u tte rs the w ords of the law', 'la bouche qui prononce les paroles de la h i ', was even in the eighteenth century in terpreted in a mechanical way.®* For our present-day susceptibility, this sentence already points to the sphere o f the living human being, filled with organic, biological and ethnic differences. Today we have become more receptive, we see even the diversity of the mouths, if I may say so, which u tter the ostensibly same words and sentences. We hear how these

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same words are ’pronounced’ very differently. We know that the same vocable in the mouths of different peoples not only sounds differently but also means something else in thought and fact, and that in m atters o f legal interpretation and in the recording o f the facts of the case, small deflec­tions have quite astonishing, remote effects. Nevertheless, we m ust and will hold onto the legally secured position of the German civil servant as much as onto the independence of the judge, in particular. Hence out of necessity, we demand their commitment without which all the guarantees and freedom s, all the independence of the judges, and above all, that ’creativity’ would be but anarchy and an especially noxious source o f political dangers. We seek a commitment which is deeper, m ore reliable and m ore embued with life than the deceptive attachment to the d istorted letter of thousands of paragraphs o f the law. Where else can it rest bu t in ourselves, and in our kin. Even here, in view of the inseparable connection o f the commitment to the law, the civil service and the judge's independence, all the questions and answers flow into the exigency of an ethnic identity w ithout which a total leader-State could not stand its ground a single day.

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THE QUESTION O F LEGALITV(1 9 5 0 )

The Reverend Oratorian Father Laberthonnière, who died in 1932, has left behind the voluminous work of a life­time, which is being edited by his friend Louis Canet. Between 1933 and 1948, six impressive volumes have been published. Quite recently, another book of his has been added to them, and which is o f particular in terest to us, namely, a Critique of the Notion of the Sovereignty o f the Law.* Father Laberthonnière critically examines the wide­spread notions of the supremacy of the law prevailing in moral theology, philosophy, and in jurisprudence, and which go back to and reach their acme in a well-known saying of A rtistotles'. namely that 'not men but the law' m ust rule. To this, the learned Oratorian opposes the assertion that men stand directly behind every earthly law and that they use the law as a means of their power.

In his criticism, Father Laberthonnière goes very far. 'La maxime: c'est la loi, ne diffère en rien au fond de la maxime: c'est la guerre' [the saying: "it is the law" does not differ in any way from the saying; "it is the war"]. This connection made between law and war is in fact surprising and sounds quite radical. The knowledge on which it is based can be grasped only as the b itter fru it of the experiences of the civil war. This formulation by the O ratorian Father should serve as an opportunity to reflect on some historical, moral, juridical and sociological experiences of the last few decades.

* 0 « u v r« « d t L *berth on n iirt, p u b l is h e d u n d e r th e c s r e of L ou ie C anet. S ic u t m in is t r a to r . Crilique da ¡a notion da aouvarain ati da ¡a Joj. In tro ­d u c t io n a n d no tee by M a r ie -M a d e le in e d ’H e n d ec o u rt. P a r is , L ib ra r ie p h i lo s o p h iq u e J . V r in , 6 P lace de la S o rb o n n e . 1 9 4 7 .

55

THE QUESTION OF LEGALITY

I

Why did the German civil service follow Hitler? The problem of culpability need not be stirred anew nor other attem pts at exculpation be made by raising this question. We address the general and practical problem of legality which is highly topical and by no means of concern only to the German civil service. We are not dealing here with individual cases, but rather with the overall sociological situation of a broad circle of people. On the other hand, within this circle which counts hundreds of thousand people, there is in particular the m atter of a leading and command­ing layer, namely, thei ministerial bureaucracy, the product of the higher civil service.

Many higher- and lower-ranking civil servants had sympathized with Hitler and his movement from before 1933, more exactly, since his big electoral success of 1930. The motives of the sympathizers were num erous and diverse. Partly, they rested on the national watchwords dis­seminated by Hitler, and partly , on status and class interests. The German civil service, in general, and the h igher- and highest-ranking civil servants, in particular, feared no harm from Hitler to their overall social and economic existence. This overall existence, however, had a twofold foundation: the traditional German State of the civil service with its well earned rights, and an influential higher, ministerial bureaucracy. Both, that is, the well-earned rights of the dv il servants and the strong position of the higher, m inisterial bureaucracy, had attained an astonishingly high point in the last years of the Weimar Constitution. The Weimar Constitution had explicitly guaranteed the well- earned rights of the dvil servants. Through thé practice of decrees, in virtue of A rtide 48 of the Constitution, the higher ministerial bureaucracy had become legislative. The decree had ousted the law. The legislation was 'm otorized' through simplifications and predpitations. Every m otoriza­tion of the legislative procedure, however, meant a power increase fo r the bureaux in which the decrees were worked out.

The majority of the dv il servants feared no harm

56

from Hitler either to their well-earned rights o r to the position of po w er'o f the German civil service as a whole. Many believed his repeated assurances and even held him fo r the rescuer of the principles of the traditional German career civil service. All of them feared an open civil war and saw in H itler's protestations o f legality a shield against the civil war. At that time only very few suspected the danger which a totalitarian party system m ust represent fo r the traditional German State of Uie civil service. Hitler too did everything to maintain this unsuspectingness. His eulogies o f the German civil service in his book My Struggle, the program m e for a restoration of the German career dv il service and the organization of the NS association of the civil servants, all served that aim. Decisive, though, were the solemn dedarations of legality, in particular the famous oath o f legality at the Scheringer trial in 1930. ’ Already at that time the issue o f legality had turned up to be the key to the problem of statal power in Germany. Likewise, in the notion of legality one finds the true answer to our question: why did the German civil service follow Hitler?

Because in the eyes of the German civil service H itler's seizure of power was not illegal. N or was it so fo r the large majority of the German people, and equally so for the foreign governments which continued to maintain their diplomatic relations without considering it necessary to proceed to a new recognition, according to international law, which would have been necessary in a case of illegality. Likewise, there was no German gove;‘nment in opposition to Hitler. Such a government materialized neither on German soil nor as government in emigration. The so-called empowerment law of 24 March 1933 removed all the mis­givings and had the effect of a great general and sweeping legislation, and in fact, retrospectively, both fo r the events of February and March 1933 and fo r ail the actions to come. The factual and sweeping legalizing effect of that law o f empowerment was therefore so comprehensive because Hitler and his following were confirmed in their effective possession of power by a constitutional amendment voted by Parliament. Thus every legal way to a cancellation o f the seizure of power was blocked. Only the feeble hope was left that perhaps the Reich President Hindenburg might still be in the position to dismiss Hitler and appoint another Reich

THE QUESTION O F LEGALITY

57

chancellor. But where the fear of a civil war had been such a strong motive to subm it to Hitler, the hope of H itler's dismissal by Hindenburg did not make much sense, because everybody knew that the attem pt to remove Hitler would have unleashed an even m ore dangerous civil war.

I t has been established in the judgment of the Nurem­berg International Military Tribunal of 1 October 1947 that 'in 1934, the whole power was in H itler's hands'. This statem ent is of the greatest importance for our problem. Thereupon, it follows fo r every positive idea of legality that H itler's power was by far m ore than just legal in itself, it was also the source of all positive le g ^ ty .

The law of 26 January 1937 concerning the German civil servants concealed its totalitarian poison,® particularly in the general reservation of §71 on party-politics, under detailed definitions and guarantees of the legal position of the German dv il servants, in accordance with the traditional principles of the career dv il service. Starting with the end o f A ugust 1939, the last remnants of a moral resistance on the p a rt of the German dv il service vanished as a resu lt of the war. F irstly , because of the self-understood invocation o f the necessities of a total war, and secondly, because the concentration of all statal power in H itler's hands reached its maximum degree a t the time. Legislation, administration and justice functioned with new simplifications and predpita tions, always unrestrained, as command machines. In the last years of the war, a new concept came into being in the sphere of food supply: the 'disposition' [Anordnimg], the essential feature of which rested in the fact that if the ruling represented a m otorized law, the 'disposition' [Anordnung] was a m otorized ruling. The general m otoriza­tion is characteristic o f thè unmixed functionalism of this machinery.

Oddly enough in 1942, a fit of the need fo r legitima­tion suddenly seized Hitler himself, in fact no t only in the sense o f his own positivistically absolute legality, but also as a kind o f democratic legitimacy. A t that time, it was revealed in two strange explanations. A darification of the Reichstag of 26 April 1942 (RGB!. I, p . 247) acknowledged that in time of war H itler had the righ t to interfere in the well-earned rights of the dvil servants (as if in such a total war and in such a system no other demands fo r rights had

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been granted but only those of the civil servants). An explanation of 10 May 1943 by Hitler himself renewed the empowerment law of 24 March 1933. Both explanations are simply incredible in the confusion of their inner contra­dictions. They prove all the m ore clearly that ultimately Hitler himself was interested in a certain legitimation even m ore than the machine functioning according to the concept o f the positivist law, and which obeyed him as the holder of State power and the only source of legality.

THE QUESTION OP LEGALITY

II

Our analysis keeps running into the notion of legality which lies at the core of the problem. There lies the key to an understanding of H itler’s regime, at least to the extent it deals with the specifically statal aspect of his power. Beyond that, it tackles a wholly im portant question of modern development. Here we are talking not of the lawfulness or the unlawfulness of countless isolated orders, bu t about the problem of the functioning of a regime as a whole. I t is a highly topical sociological problem which deserves fully to be treated with all objectivity.

In order to do just that we must become aware of an extraordinary difficulty. I t resides in the fact that the word 'legality' acquires a distinctive, ra ther specific meaning in a m odern, thoroughly organized State entity. It is only from this point of view that one can, grasp the history o f the German civil service since 1918. The legality in question here does not mean a merely external, purely formal, purely juridical accompaniment. It does not refer to the question of law and justice under the aspect of their contents, either. It is also to be distinguished from legitimacy, whether in a conservative or a revolutionary sense. Nowadays, the words 'legal' and 'legality' can mean everything that the word 'lex' somehow conveys; and this w ord lex has an altogether different content at different times, and in different countries, in different constitutions and fo r different organizational forms of legislation and administration of justice. Hence we m ust seek to some extent to overcome the almost Babylonian confusion of speech that prevails here.

In a modern system , that is to say, an industrialized,

59

thoroughly organized system, endowed with a division of labour and highly specialized, legality means a specific working and functioning method of the public body. The manner in which affairs are decided, the routine and the habits of departments, the somewhat calculable functioning, the concern to retain this kind of life and the need of a 'cover' against an account-demanding authority: all that belongs to the complex of legality from a bureaucratic- functionlist point of view. If a sociologist like Max Weber says: 'The bureaucracy is our fate’, we m ust add: 'legality is the working mode of this bureaucracy'.

In those countries in which the State bureaucracy has not, o r not yet, the monopoly of the administration of public tasks, one can hardly grasp the transform ation of the law into the working m ode of an operating public body and perhaps would not understand the change in the meaning of the w ord 'legal' at all. I t would be hard to make our reasoning clear to an Englishman or an American without any sociological training. In the Anglo-Saxon usage, the w ord 'legal' has the same sense as 'lawful' o r 'juridical'. Of course, there are antitheses between lawful and moral, lawful and politically possible and habitual, bu t the sharpest antithesis between lawiful and legal, which is the basis of our analysis, cannot be expressed in English. On the contrary, in France, the homeland of State legislation and of the great statal codifications, the statal administrative machine has since 1799 survived half a dozen regime changes. There, the m ost d ean -cu t formulations of a purely formalist-functional legality came into being as a consequence, in opposition to substantive law and historical legitimation. As early as 1829, Lamennais had with all p redsion formulated the antithesis between legality and legitimacy. Even before the 1848 revolution, would the word be preached: legality kills (la légalité tue). In no time, this sentence became a familiar saying in France and in the French language. I t can hardly be translated into English, which may be explained only by the fact that the English o f the nineteenth century had distanced themselves m ore than the French from the line of fire of the European dvil war. Immediately after 1848, the then President Louis Napoleon issued prodam ations in which ' he urged; 'to gel out of legality in order to attain the law' (de sortir de la légalité, pour rentrer dans le droit). From

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around 1900, the opposition in France has been speaking of a 'legal country ' [pays légal] which it represents, in contra­distinction to 'real country ' [pays réel].

France is the country of legists. She has got a strong statal centralist tradition but also an im portant free advocateship and magistracy which do not regard them­selves merely as part of the State administration of justice. In this way, it becomes clear why it was in France that the separation of law and legality had been f irs t and m ost sharply felt and had been formulated m ost pregnantly. Likewise, the phrases of the Rev. Father Laberthonnière, with which we started, could emerge with such clarity only in France. In Germany, on the other hand, one became critically aware of the antithesis much later, after its m ost massive effects had been taken into consideration.

For centuries, the German State had been a State of civil servants. Nevertheless, until the collapse o f 1918, the purely statal functionalism was hidden despite the prevailing legal positivism, by a thick veil of a double tradition, namely that of the monarchically dynastic legitimacy and the federalist decentralization.The dynastic legitimacy fell in November 1918. The economic-industrial development went the way of an increasing centralization. Finally, only the statal legality remained as the sole lawful foundation of State functioning. Legality would become, as Max Weber said, the only apparent form of legitimacy.

THE QUESTION OF LEGALITY

Ill

It is said about the Germans that they are a people that are touching by their need fo r legality. They have also and often been reproached that they were incapable of offering any right resistance to the powers that be. They have presumably shown a special ability to combine submis­sion to the powers at the time with an inner sense of freedom . W hether Luther o r Kant or anybody else should be held responsible for it need not be looked into here. For the rest, there can be no doubt that the Germans are in a particularly high degree a people of civil servants with a cast of mind common to a statal civil service. To that may

61

be added a stronger sense of a technicized discipline for specialization and the delimitation of responsibilities and for the ideal functioning w ithout a hitch.

Perhaps. But the transform ation of law into legality as a m ere functioning mode of the work of the statal a d i ^ - istration and the corresponding relationship with the individual human beings who are dependent on such an administration is no longer a specifically German problem. Everywhere rules the juridical positivism and that means the acceptance o f the sentence that the law will be set by whomever simply asserts himself de facto. Juridical positivism is but the transform ation of law into a setting of settings. A t the same time, it is the acceptance of the 'norm ative force o f the factual', an interesting kind of force which was not discovered only in Germany and only in 1933. Still nowadays, at the beginning o f December 1949, the English delegate at the UNO explained with reference to the recognition o f Q iina's new communist government that recognition according to international law is to be based only on factual reality. The rightfulness of the genesis is no characteristic trait of the power of a State. The German Supreme Court had said that after the collapse of November 1918, with regard to the then w orkers' and soldiers' councils. But that is a platitude, a topos of the juridical manuals and commentaries. A State macidne which functions effectively is in itself the carrier of the State power and the source o f all positive law.

This transform ation of law into legality is a conse­quence o f positivism. It is unavoidable as soon as a political community distances itself from the Church. Sociologically speaking, it is an aspect o f the evolution of the industrial- technical age. In the h istory of philosophy, it belongs to the transform ation of substantive thinking into functional thinking, a transform ation which until recently has been extolled to us as a marvellous scientific and cultural p ro ­gress. The frightful image which results from a complete functionalization of mankind has been the subject of an impressive recent article in the journal Universitas in Tübingen, w ritten by its publisher Serge Maiwald. But already m ore than th irty years before it, Max Weber, the great German sociologist, had made a diagnosis and a p rog ­nosis that proved to be correct. We have already quoted his

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words about bureaucracy as fate. As another illustration of his marvellous prognosis we quote from his posthum ous work Economy and Society (1921, pp. 511-512): 'W hatever form law and legal practice might assume under these influences, it is the unavoidable fate in all circumstances and as a consequence of the technical and economic develop­ment that each law in force will expand as a rational tech­nical machine, capable o f being adjusted any time, and be devoid of any sacred content. Admittedly, this fate may be concealed by the ability to conform to the existing law on general grounds and in many ways, but in reality it cannot be deflected.'® True, these sentences of Max Weber may not be easily understood, but even so they are not an oracle but a sociological prognosis.

The transform ation of law into legality was directly followed by the transform ation of legality into a weapon of civil war. Neither was that a German invention. It was Lenin who proclaimed it with full awareness and sharpness. His paper of 1920, entitled 'Left-W ing Communism - An Infantile Disorder' is such a confirming document that any discussion of the problem of legality becomes anachronistic unless its words are taken into consideration. Lenin says: 'But revolutionaries who are incapable of combining illegal form s of struggle with every [the emphasis is Lenin's] form of legal struggle are poor revolutionaries indeed.'^

That is it. Renowned philosophers and w riters of Leninism and Stalinism have made these theses of Lenin's the object of their exegeses with the result that all legality becomes a tactical tool, whereas for them there is only one kind of historical legitimacy, that of the communist revo­lution. F o r them, that legimacy justifies every m easure and every legal and illegal te rro r.

With this observation we have reached our point of departure, the words o f Father Laberthonniire that the maxim 'law is law' basically means the same thing as 'war is war*. That becomes even clearer when we say 'civil war is civil war'. With great sadness Father Laberthonnifere re ­minds us of the long rows of revolutionary tribunals, extraordinary, special, people's, chambers and instances, which have been busy in the course of history and in the hands of which the law has been a tool of persecution and of vengeance. Then, while shuddering intensely, we hear his

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THE gUBSTION OF LEGALITY

amazing statement: I do not compare the victims, I compare only the judges.

64

NO TES

In th e B ng lish -lan g u ag e l i te r a tu r e , th is law is ro u tin e ly tra n s la te d a s th e 'B n ab lin g L aw '. As th e re w aa no q u estio n of e n a b lin g o r d is a b lin g an y o n e , b u t of s u r r e n d e r in g th e p o w e r of m aking law s fo r th e w h o le c o u n try to H itle r 's g o v e rn m e n t, i t h as b een th o u g h t m o re c o rre c t to t r a n s ­la te 'Brm Schtigung by 'em pow erm ent* th ro u g h o u t.B eaid es , 'M acht', th e ro o t of th e G erm an te rm , haa th e w o rd s 'm ig h t', 'fo rce ', 'p o w e r ', a s E n g lish e q u iv a le n ts . As fo r th e Law p ro p e r , i t c o n ta in ed f iv e sec tio n a: 1 an d S g ave th e fed era l g o v e rn m e n t th e p o w er to en ac t law s for fo u r y e a rs w ith o u t th e co o p era tio n of th e P a rlia m e n t (R e ich stag ); sec tio n 3 p ro v id e d th a t th e law s en ac ted by th e G o v ern m en t w e re to b e d ra f te d by th e C h an ce llo r and w e re to com e in to e ffec t on th e d ay a fte r th e i r p u b lic a tio n in th e O fficia l G azette of th e R e ich ; f in a lly , se c tio n s 2 and 4 s ta te d th a t in i t s leg is la tio n , th s G o v e rn m en t h a d the p o w e r to d ev ia te from th e C o n stitu tio n , and a lso to con­c lu d e tre a tie s w ith fo re ig n s ta te s , th e o n ly re se rv a t io n s b e in g th o se th a t c o n ce rn ed th e in s t i tu t io n s of th e tw o fe d e ra l ch am b ers .A r t ic le 3 of th e W e im a r C o n s titu tio n la id dow n th a t th e co lo u rs of th e R eich w e re b la c k -re d -g o ld , an d th e m ercan ­t i le flag w as b la c k -w h ite - re d w ith th a R e ich 's co lo u rs in th e in s id e u p p e r r ig h t an g le . B lac k -red -g o ld w e re th e c o lo u rs flo w n b y th e l ib e ra l s tu d e n t m ovem en t in th e y e a rs 1 8 4 8 -1 8 4 9 , w h e rea s th o se of th e N orth G e rm an ic Confed­e ra tio n , an d e v e n tu a lly of B ism arc k 's new G erm an E m p ire h ad been b la c k -w h ite - r e d , a c o m b in a tio n of th e P ru s s ia n b la c k -a n d -w h ite , an d th e H an se a tic w h i te -a n d - re d flags. T h is q u a lif ica tio n of th e m o r u l e,nemy w a s a ll th e m ore n e c e ssa ry a s C arl S c h m itt h ad b een k n o w n aa an advocate o f th e su p p re s s io n of b o th th e C o m m unist a n d th e N ational S oc ia lis t m ovem en ts an d th e i r a ffilia te s .T he law en ac ted by th e G erm an G o v e rn m en t, u n d e r th e s ig n a tu re s of th e R eich C h an ce llo r , of th e R eich M in is te r of th e In te r io r an d th e R e ich M in is te r of J u s tic e , co n ta in ed o n ly tw o a r tic le s , a s fo llo w s; '1 . T he N ational S oc ia lis t G e rm an W o rk e rs ' P a r ty c o n s t itu te s th e o n ly p o lit ic a l p a r ty in G e rm an y . 2 . W h o ev e r u n d e r ta k e s to m a in ta in th e o r­g an iza tio n a l s t ru c tu re of a n o th e r p o lit ic a l p a r ty o r to fo rm a n ew p o litic a l p a r ty w il l b e p u n ish e d w ith p e n a l s e r ­v i tu d e up to th re e y e a rs o r w ith im p riso n m e n t u p to th re e y e a rs , u n le s s th e ac tio n ia s u b je c t to a g re a te r p e n a lity , a cc o rd in g to o th e r re g u la tio n s .'T h e R e ich g ese tzb ia tt w as th e O ffic ia l G azette of th e R eich . I t w il l a p p ea r in th e a b b re v ia te d form , RGBl., in th e r e s t of th e te x t.

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L ik ew ise tra n s la te d aa 'th e law on th e g u a ran tee of j u r id ­ical peace', i t w aa a R eich G o v ern m en t law w h ich p ro ­m ulgated th e d ea th p e n a lty or fo rced la b o u r for fifteen y e a rs o r in p e rp e tu ity , o r even a m ore se v e re p u n is h ­m en t to w hom ever u n d e rto o k to k i ll , in c i te d to , or p lo t­ted th e m u rd e r of a ju d g e , o r a p ro se c u to r , an a sse sso r , a w itn e ss or a c iv i l s e rv a n t em ployed b y th e c r im in a l po litica l p o lice , th e ra ilw a y , fo re s t and m u n ic ip a l p o lice , th e se c u rity se rv ic e o r a m em ber of th e a rm ed fo rce s , of th e SA an d o th e r p a ra m il i ta ry o rg an iza tio n s p ro te c tin g the P a rty , a P a rty o ffic ia l o r a m em b er of th e G erm an fly in g c lu b . P u rth e rm o re , a s im ila r sen ten ce w as to b e m eted to w h o m ev er com p iled a n d d isse m in a ted a n y d ocum en t fa lse ly ju s t ify in g h ig h -tre a so n ac ts , an d to w h o m ev er t r ie d to in tro d u c e i t in s id e th e G erm an b o rd e rs an d d isse m in a te it , fu lly aw are of i ts c o n te n ts , as w e ll as to w hom ever in s id e th e co u n try sy m p a th iz ed w ith a h ig h ly trea so n o u s ac t com m itted ab ro ad . O n th e o th e r h a n d , a ll th o se w ho a tte m p ted to in tro d u c e an d d isse m in a te docum en ts of an a n ti-n a tio n a l p u rp o r t in to th e c o u n try , w ith a v iew to o rg an iz in g p o lit ic a l p a r tie s , in c i t in g , p ro v o k in g an d m ak ing fa lse d e c la ra tio n s , w e re p u n ish a b le up to fiv e y e a rs of h a rd lab o u r.L atin legal p h ra se , m ean in g 'th e a u th o r ity of a c o n s titu ted m a tte r ', th a t is , a m a tte r th a t becom es a u th o r i ta t iv e in v i r tu e of th e fact th a t i t is e s ta b lish e d b y law .By th e law on p o p u la r co n su lta tio n , th e R e ich G o v e rn m en t, w h e n e v e r i t su ite d it , a ssu m ed th e r ig h t to d em and th e ap p ro v a l of th e p e o p le fo r m ea su re s , law s o r changes in th e C o n stitu tio n , u n d e r ta k e n b y th e G o v e rn m en t. As C h an ce llo r an d L ead er, t i t le u n d e r w h ich h e com bined h is P a r ty 's le a d e rsh ip w ith th e office of th e R eich P re s id e n t in 1 9 3 4 . H itle r re so r te d to p le b is c ite s to o b ta in p o p u la r co n firm atio n of h is p o lic y and v a rio u s d e c is io n s , and c o n se q u en tly , as a leg itim a tin g m ean s, b u t sh u n n e d re fe r ­en d a , by w h ich h e w o u ld h ave s u r re n d e re d th e dec isio n to th e p eop le and so d e p r iv e d h im se lf of co n tro l. T h ree im p o rta n t law s cam e o u t of th e R eich C h an ce lle ry on 14 Ju ly 1933 . B esides th e law on p le b is c i te s a n d th a t on th e re co n stitu tio n of p o lit ic a l p a r tie s (see no te 4 above), th e law w as p ro m u lg a ted on th e co m p u lso ry s te r il iz a tio n fo r in d iv id u a ls affec ted by h e re d ita ry i l ln e s s e s o r o th e r in c u ra b le d e fic ien c ie s .The G erm an te rm fo r p a r lia m e n t o r n a tio n a l a ssem b ly has b een le ft u n tra n s la te d in both te x ts . O ne reaso n w as an a tte m p t to avo id tra n s la t in g 'R e ic h ' b y 'B m p ire ' an d so lend th e w o rd th e s ig n ific a n ce w h ich i t had b e fo re th e B m - p e ro r 'e ab d ica tio n in N ovem ber 1 9 1 8 . M o reo v er, w ith th e d isso lu tio n of th e p o lit ic a l p a r tie s , i t ch an g ed in to a d ra s t ic a l ly d if fe re n t fo ru m , of th e N a tiçn a l-S o c ia lie t P a rty

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a lo n e , th a t w as co n v en ed a t H i t le r 's p le a su re , a s a q u a s i- p le b is c i ta ry o rgan .

9 L eft u n tra n e ie te d in th e te x t , th e H e ich sra t w aa th e c rea tio n of th e W e im ar R e p u b lic , m ean t som ehow to con­t in u e th e tra d i t io n of th e F e d e ra l C ouncil in B ism arc k 's R e ich . S econdary in im p o rta n c e to th e R e ichstag , i t c o n s is ted of r e p re s e n ta t iv e s of th e s ta te s w h ic h c o u n ted a to ta l of s ix ty - s ix v o tes am ong th e m . O ffic ia lly , th e m em b e rs of th e p ro v in c ia l g o v e rn m en ts w e re th e c h ie f d e leg a te s of t h e i r s ta te s in th e R e ic h s ra t, b u t fo r th s ro u tin e w ork of th e a s se m b ly th e y w e re a llo w ed to a p p o in t t h e i r ow n h igh o ffic ia ls to r e p re s e n t th em in s te a d . D u rin g th e W eim ar R e p u b lic , e v e ry la w w as e x p e c te d to be p a sse d b y th e R e ic h s ra t w h ic h co u ld be o v e rr id e d b y th e R e ich stag , th o u g h , in c ase of o p p o s itio n . W ith th e e lim in a tio n of a ll s ta ta l a t t r ib u te s of th e p ro v in c e s by H it le r in J a n u a ry 1 9 3 4 , th e R e ic h s ra t lo s t i t s reaso n fo r e x is te n c e , an d w as d is so lv e d b y a law of 14 F e b ru a ry 19 3 4

10 A dop ted in A p r i l 1 9 2 4 , th e D aw ee P lan , n am ed a f te r i ts in it ia to r , A m erican la w y e r a n d f in a n c ie r C h a rle s G ates D aw es (1 8 6 S -1 9 S 1 ) w h o a y e a r la te r b ecam e US V ice P re s id e n t, i t w a s d e s ig n e d to b a la n c e G e rm a n y 's b u d g e t, a te b iliz e i ts c u r re n c y , a n d e n a b la h e r to p ay th e im p o sed w a r re p a ra tio n s w ith o u t se ttin g a n y fin a l to ta l am o u n t a n d te rm of p a y m en t.

11 A r t ic le 76 r e fe r re d to th e p o s s ib i l i ty of re v is in g th e C o n stitu tio n b y le g is la tiv e m ea n s , th a t i s , in th e p re se n c e of tw o th i r d s of th e to ta l lega l n u m b e r of th e d e p u tie s of th e R eichstag , by m ea n s of s m a jo r ity of tw o t h i r d s of th e i r votes. O n th e o th e r h a n d , a p o p u la r in it ia t iv e fo r an y c o n s titu tio n a l re v is io n h a d to r a l ly th e m a jo rity c o n sen t of a p o p u la r re fe re n d u m . F u r th e rm o re , th e R e ich stag c o u ld o v e rru le th e R e ic h s ra t 's v e to in th e m a tte r , a n d have th e R eich P re s id e n t p ro m u lg a te th e am en d m en t w i th in a fo r tn ig h t, u n le s s th e R e ic h s ra t d em an d ed a re fe re n d u m .

12 D esp ite a m o n s te r e le c to ra l cam p aig n , H i t la r 's m o v em en t g a rn e re d o n ly an a d d itio n a l f iv e a n d a h a lf m illio n v o tes , to ta llin g 4 3 .9 p e r c e n t of th e o v e ra l l n u m b e r of votea c a s t. He n eed ed h is N a tio n a lis t a ll ie s to g e t th e b a re m a jo rity of se a ts in th e R e ic h s ta g (2 8 8 p lu s 52 in a h o u se of 6 4 7 sea ts ). T he 5 M a rch 1 9 3 3 e lec tio n s w e re th e la s t m u lt i -p a r ty e le c tio n s , a s H itle r th e n e m b a rk ed u p o n h is a l l -o u t o ffen s iv e ag a in s t h is p o lit ic a l o p p o n en ts a n d a llie s a lik e .

13 T he f ill in g of a p o w e r v acu u m in a c o u n try 's g o v e rn an ce i s enough ju s tif ic a tio n in a se c u la r iz e d w o rld fo r w h o m ev er u n d e r ta k e s i t su c c e s s fu lly . If th e W eim ar R e p u b lic em erged in th e p o w er v acu u m c re a te d b y th e B m p ero r 's a b d ic a tio n , th e a ssu m p tio n of th e leg is la tiv e p o w er by

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H itle r cou ld b e Ju s tif ie d by analogy w ith th a t v o lu n ta ry tra n s fe r . M o reo v er, in c irc u m s tan c es in w h ich n o rm ativ e p o s itiv ism p re v a i ls , th e leg a lity of the act as su ch is its leg itim ation .

14 A rtic le 1 of th e ^V eim ar C on stitu tio n co n sis ted of tw o sec tio n s: '(1 ) T he G erm an R eich is a re p u b lic , and (2 ) The p o litica l p o w e r com es from th e p eo p le .' P rom i ts f i r s t s ta tem en t, th e C o n stitu tio n re flec ted th e d if f ic u ltie s en ­co u n te red w h ile a tte m p tin g to p laca te a ll th e co n flic tin g tr e n d s . H ence th e in h e re n t c o n trad ic tio n : th e E m p ire (R e ich ) is a re p u b lic !

15 A fte r th e M arch 1 9 3 3 e le c tio n s , th e Reich G o v ern m en t changed i ts co m p o sitio n from a p o litica l coalition c a b in e t to a le g is la tiv e g o v e rn m e n t of e x p e r ts se lected and ap p o in te d by th e C h an ce llo r w h o a lso co u ld d ism iss th em a t w ill. E v e n tu a lly , h is m u ch re sh u ff le d cab in e t m et for th e last tim e on 4 F e b ru s ry 1938!

16 T h ere w as no fo llo w -u p of th a t law as no new C o n stitu tio n w as e v e r to be w r i t te n in th e tw e lv e y e a rs of N ational- Socia list ru le . O n th e o th e r h a n d , th e 'gloomy s itu a tio n ' r e fe rs to th e s h o r t s p e l l w h en H in d en b u rg , th e R eich P re s id e n t h ad b een re fu s in g to e n tru s t H itle r w ith th e fo rm atio n of a c a b in e t in th e a fte rm a th of th e N ovem ber 1 9 3 2 e le c tio n s . T he law of 17 D ecem ber 193 2 w as a N a tio n a l-S o c ia lis t sp o n so red b i l l m ean t to p re v e n t th e th en C h an ce llo r S c h le ic h e r to assu m e th e P re s id e n t's p o w e rs in case of la t te r 's in c a p a c ita tio n , o r in th e e v e n t of h is d ea th . A t S c h le ich er h ad b een re le a sed from an y p o litic a l office an d H itle r h im se lf h ad becom e C hancello r, th a t law w aa an o b v io u s im p e d im e n t to h is assu m p tio n of p re s id e n tia l p o w e rs , and w as soon to be rep laced by a G o v e rn m en t law of H it le r 's o w n m ak in g .

17 R eferen ce to th e fo rm u la of g o v ern m en t by p re s id e n tia l d e c re e w h ich w as p ra c t is e d in G erm any in th e la s t tw o y e a rs of th e W e im ar R e p u b lic , w hen th e R e ich stag tu rn e d d y s fu n c tio n a l, r e lu c ta n t o r u n a b le to ex p ed ite n e ce ssa ry leg is la tio n , p a r t ic u la r ly in o rd e r to so lve th e fin an c ia l c r is is . A lthough he d is l ik e d H itle r p e rso n a lly , i t w as th e la t te r 's a s s u ra n c e s th a t h e w o u ld not be b u rd e n e d w ith th e p ro b le m s in c u m b e n t on th e ch an c e llo r th a t m ade P re s i­d e n t H in d e n b u rg r e le n t an d a p p o in t h im c h an ce llo r. It seem s to h av e b een one of th e v e ry few p ro m ises w h ich H itle r e v e r k e p t.

18 F re n c h se n te n c e m ea n in g 'w h o re ig n s b u t does not g o v e rn ', i t had a w id e c irc u la t io n in th e lib e ra l n in e te en th cen ­tu r y . A cco rd in g to C arl S c h m itt, it w as a t ra n s la tio n of th e L atin se n ten c e R ex regnet sed non g u b e rn a t, w h ich ro u n d 1 6 0 0 , w a s d ire c te d ag a in s t S ig ism und 111 V asa (1 5 8 7 -1 6 3 2 ) , K ing of P o lan d . (See Carl S ch m itt, PoUtiscbe Theologie ff. C h. 2 , se c . 2 , B e rlin , 19,70.)

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19 A r tic le 56 of th e W e im a r C o n stitu tio n d e fin e d th e office of R e ich ch an ce llo r a s th e d u ty to t r s c e o u t th e g u id in g l in e s of p o licy fo r w h ic h h e a ssu m e d re s p o n s ib i li ty b e fo re th e R e ich stag . In a d d itio n , i t s ta te d th a t each m in is te r h ad to m sn sg a th e a f fa irs of th e d e p a r tm e n t in h is ch arg e fu lly in d e p e n d e n tly , w ith in th e l im ita of th o se d ir e c t iv e s , an d fo r w h ich h e w as a cc o u n ta b le to th e R e ichstag .

2 0 In d e ed , th e ran g e of le g is la tiv e p o s s ib i l i t ie s w o u ld s u r ­p a s s a n y b o d y 's im ag in a tio n . I t m ay be sa id th a t an y o rd e r is s u e d in th e n am e o f a n y p u b l ic body e v e n tu a lly a c q u ire d th e p o w e r of law , aa soon a s i t w a s m a d s p u b l ic in w r i t te n fo rm a n d m et w i th no o b jec tio n fro m th e in te r ­e s te d p u b lic a d m in is t r a t iv e d e p a rtm e n ts .

21 T h a t is : T h e ' la w s of th e R e ich m ay be e n ac ted acco rd in g to th e p ro c e d u re s t ip u la te d b y th e R eich C o n stitu tio n , b u t e q u a lly by th e R eich G o v e rn m en t. T h is d iep o e itio n a p p lie e to th e law s d e fin e d b y A r tic le 8 2 $2 an d A rtic le 8 7 of th e W e im a r C o n stitu tio n '.

2 2 A r t ic ls 6 8 c o n ta in ed tw o c la u se s : th e f i r s t s ta te d th a t th e r ig h t to o rig in a te leg is la tio n b e lo n g ed to th e R eich g o v e rn ­m e n t an d to th e m e m b e rs of th s R e ich stag , an d th s second a ffirm ed th a t b i l ls of th e R e ich w e re p a sse d by th e R e ichstag .

2 3 A r tic le 73 l is te d fo u r c a se s in w h ic h a re fe re n d u m could b e c a lle d : a. w h e n th e R e ich P re s id e n t eo d e c id ed w ith in a m o n th from th e p a ssa g e of e b i l l by th e R e ic h s u g an d b e fo re i ts p u b lic a tio n ; b . w h e n th e p u b lic a tio n of a b i l l w a s a d jo u rn e d b y th e m otion of a t le a s t one t h i r d (d th e m em b e re of th e R e ich eteg . en d s d em an d w a s m ad e fo r i t s su b m iss io n to a re fe re n d u m b y tw e n ty p e r c e n t of th e e lec to ra te ; c . w h e n te n p a r c e n t of th e e le c to ra te p r e ­se n te d a p o p u la r in i t ia t iv e , w h ic h n eed ed to b e b r ie f an d h a d f i r s t to b s s u b m itte d by th e g o v e rn m en t to th e R e ic h sta g fo r i t s o p in io n ( in th d case in w h ic h th e R e ich s­tag en ac ted th s d ra f t w i th o u t a m e n d m sn ta , no re fe re n d u m fo r t h s p o p u la r in i t ia t iv e w a s deem ed n e c s s se ry ) , and f in a l ly , d . in co n n ec tio n w i th t h s leg is la tio n fo r th s b u d g e t, ta x e s an d w ag es , w h e n th s R e ich P re s id e n t a lone h a d th e r ig h t to ce ll a re fe re n d u m . T he p ro c e d u re fo r r e fe re n d a an d p o p u la r in i t ia t iv e s w as e s ta b lish e d by a n o th e r law of th e R e ic h . E v e ry th in g w a s in d e e d q u ite c o m p lica te d , a n d u n p re d ic ta b le a s fa r a s th s r e s u l ts w e re co n ce rn ed . T h a t m akea i t e asy to u n d e rs ta n d H it le r 's p re fe re n c e fo r p le b is c i te s w h ic h o n ly co n firm ed h is d e c is io n s w h e n e v e r h e n e ed e d co n firm etio n e ith e r as s e lf -a s s u ra n c e o r m o rs l ik e ly fo r p ro p a g an d is tic e ffec ts in th e in te rn a tio n a l a ren a .

2 4 P a ra g ra p h 2 r e fe r re d to th e n e c e ssa ry m e a su re s w h ich th e R eich P re s id e n t c o u ld ta k e in case s e c u rity a n d p u b lic o rd e r w e re se r io u s ly im p a ire d o r co m prom ised w ith in th e

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G erm an R eich , in o rd e r to re s to re th em , in c lu d e d among th e m easu re s w ere th e u se of a rm ed fo rces and th e p a r tia l o r total su sp en s io n of th e b asic r ig h ts g u a ran teed by o th e r a r tic le s of th e C o n s titu tio n .

25 In o th e r w o rd s , th e o n e -p a r ty R eichstag e lec ted in No­vem b er 1933 had no leg is la tiv e in it ia t iv e of i ts o w n . It o n ly cou ld fo rm u la te th e d e c is io n s su b m itte d by th e R eich ch an ce llo r a t h is p le a su re , an d w ith o u t any d eb ate , in to R eichstag re so lu tio n s . B esides, th e R eichstag convened on ly a t th e c h a n c e llo r 's p le a su re o n i ts new and p ro v is io n a l p re m ise s , th e K ro ll O p e ra H ouse, a fte r th e 27 F e b ru a ry 1933 f ire a t th e R e ic h sta g b u ild in g .

26 A rtic le 24 of th e W e im a r C o n stitu tio n s t ip u la te d q u iteth e opp o site , n am e ly , th a t th e R eichstag w as to convene each y ear on th e f i r s t W ed n esd ay of th e m on th of No­v em b er a t th e se a t of th e R eich g o v ern m en t. I t co u ld be convened sooner b y i ts C h a irm an , a t th e re q u e s t of the R eich P re s id e n t o r ,o f a t le a s t one th ir d of th e d e p u tie s .

2 ? H itle r k e p t a ll h is o p tio n s o p en , so to sp eak , not o n ly inm a tte rs of d e c is io n -m a k in g b u t a lso in th e im p lem en ta tio nof d ec isio n s: th e W e im ar C o n stitu tio n w a s n e v er a b ro ­gated o ffic ia lly , an d o th e r law s of th e im p e ria l e ra rem a in ed v a lid . V a rio u s , often c o n tra d ic to ry , d ec rees and reg u la tio n s w e re ad d ed to th em , w h ile local a u th o r it ie s , p a r ty o r a d m in is tra t iv e , p ro d u c ed th e ir ow n reg u la tio n s and com m ands, v y in g in th e ir e ag e rn ess to a n tic ip a te th e L ead er's w ill. A ll th i s accu m u la tio n erf ru le s and reg u la ­tio n s g en era ted a n d p e rp e tu a te d a fog of a p p re h e n s io n and u n c e r ta in ty , on th e o n e h an d , w h ile on th e o th e r , it en h an ced th e se lf -sa tis fa c tio n of th e v a r io u s ca teg o ries of 'le g is la to rs ' w ho e n jo y ed and in d u lg e d th e i r u n d re am t-o f p o w er, w h e th e r re a l o r m ere ly im ag in ary .

28 R eference to h ie a r t ic le 'F u r th e r D evelopm en t of th e Total S ta te in G e rm an y ', p u b l is h e d o rig in a lly in th e F e b ru a ry 193 3 issu e of R u ropE ische R evue. See in p a r tic u la r p p . 2 4 -2 7 of th e B ng iish tra n s la tio n in c lu d e d in C arl S chm itt: F o u r A rtic le s , 1932 -1938 , W ash in g to n DC, 1999 .

29 See note 4 above.30 B n g lish - tp e a k in g h is to r ia n s and t r a n s la to rs te n d to re n d e r

th e G erm an te rm Berufabeam ten aa 'p ro fe ss io n a l c iv il s e r ­v a n ts ’, w h ich so u n d s r a th e r p leo n a s tic , g iv en th e fa c t th a t all c iv il s e rv a n ts w e re p ro fe ss io n a ls , b ecau se in G erm an y a t lea st, th ey h ad to s u b m it to sp ec ia l e x am in a tio n s and t ra in in g fo r th e p o s it io n s fo r w h ic h th ey a p p lie d . W h atin p r in c ip le is im p o r ta n t in th e i r case is th a t th ey w ere e n title d to te n u re , a n d lik e th e c a re e r d ip lo m a ts in th e USA, w ere no t p o lit ic a l a p p o in te e s . H ence, th e p re fe re n c e to u se th e E n g lish te rm s 'c a re e r c iv il s e rv a n ts ' w h e re v e r th a t ap p lie s in bo th t ra n s la t io n s in c lu d e d in th is book.

31 R efers to th e m ain tra n s fo rm a tio n w o rk ed in th e

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m en ta lity and. th e s t r u c tu r e of th e G e rm an c iv i l s e rv ic e by th e law of 7 'A p ril 1 9 3 3 , know n as th e law fo r th e re­e s ta b lish m e n t of th e c iv i l s e rv ic e , th a t led to th e rem oval of any le ft-w in g o r e v en R e p u b lic a n -le a n in g c iv i l s e rv a n t , and a lso of any c iv i l s e rv a n t of Je w ih d e sc en t. U n til H in d en b u rg 's d e a th , ex ce p tio n s w e re m ade fo r th o se in th e la tte r category w ho h ad lo s t a p a re n t o r a s ib l in g in th e w a r o r w ere th e m se lv e s w a r v e te ra n s . T h a t law w as s tre n g th e n ed by o th e r tw o of 30 Ju n e an d 20 J u ly 1933 w h ich a lso reg u la ted a d m iss io n to th e B ar, an d a p p lie d to e d u ca to rs a t a il le v e ls , an d to law en fo rcem en t b o d ies .

32 T he em p h asis is on d ir e c t an d m ech an ica l su b o rd in a tio n acco rd in g to a p r in c ip le of ra n k in g le a d e rs h ip , so to sp eak . The p ro v in c ia l g o v e rn o rs w e re , acco rd in g to th e law of 7 A p ril 1 9 3 3 , th e R eich C h a n ce llo r 's de legates charged to s u p e rv is e th e im p le m e n ta tio n of th e la w s of th e R eich and of th e L ea d e r 's o rd e rs in th e p ro v in c e s or th e g ro u p of p ro v in ce s a llo tte d to th em . As v ice -ch a n c e llo rsto th e p ro v in ce s , t h e i r a u th o r ity w as a ll in c lu s iv e a t th e ex p en se of th e la s t a t t r ib u te s of sta teh o o d of th e p ro v ­in ces . In v ir tu e of th a t law , H itle r ap p o in te d h im se lf g o v e rn o r of P ru s s ia , a t th e e x p e n se of von P ap en , b u t e n tru s te d th e fu n c tio n s of th a t o ffice to h is hen ch m an H erm ann G bring, a s M in is te r P re s id e n t of P ru s s ia . K now n a s th e 'second law of th e c o o rd in a tio n o f th e p ro v in c e s w ith th e R e ich ', i t m a rk s th e second s tag e in th e s tre am ­lin in g p ro cess of c o n ce n tra tio n of s ta te p o w e r in th e h a n d s of th e L ead er. T he p ro c e ss h ad b een s ta r te d w ith th e 31 M arch law of c o o rd in a tio n , w h ich h ad ca lled th e N a tio n a l-S o cia list g o v e rn m e n ts of th e co n fed e ra te s ta te s to leg isla te in tu n e w ith an d by tak in g th e e x am p le of th e R eich go v ern m en t, a n d d is re g a rd th e c o n s titu tio n s a n d th e p ro c ed u re s p e c u lia r to th e re sp e c tiv e s ta te s . I t h ad a lso p ro v id e d fo r th e d isso lu tio n o f a ll th e e le c te d provincial p a rlia m e n ts , an d of a ll d is t r ic t , c ity , an d v illag e c o u n c ils , and fo r th e ir re o rg an iza tio n on th e b a s is of th e r e s u l ts of th e R eich e lec tio n s of S M arch 1 9 3 3 . T he n ew , se lec ted p ro v in c ia l a sse m b lie s w o u ld b e s h o r t - l iv e d , though , b ecause an o th e r G o v e rn m en t law of 13 O c to b er 193 3 w ould su sp e n d th em in d e f in i te ly , and in c re ase th e p o w e r of th e g o v ern o rs .

3 3 On 31 Ja n u a ry 1 9 3 4 , th a t is , a f te r th e p u b lic a tio n of th is book, a new law on the reorganization o f th e R eich fu l ly ab o lish ed any c o n s titu tio n a l an d a d m in is tra t iv e p a r tic u ­la r ity of th e p ro v in c e s , an d th e i r p a r lia m e n ta ry re p re se n ta ­tio n , an d s u p p re s s e d th e n a tio n a lit ie s , fo rb id d in g an y of­f ic ia l d is tin c tio n s su c h a s . fo r in s tan c e , b e tw een Saxons an d F ran co n ian s, S w ab ian s , R h in e la n d e rs , e tc .: th e y w ere a ll G erm ans. T he sam e law d e p r iv e d th e b ig c itie s of th e i r au tonom y, re p la c in g th e i r c o u n c ils by m ay o rs and

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NOTBS

com m isioners ap p o in te d by th e R eich G ov ern m en t.3 4 T h at is th e t i t le of c h a p te r X in th e second volum e of

H itle r 's M ein Kampf. T h ere a re se v e ra l B ngiish t r a n s la ­t io n s av a ilab le . In th e 193 9 p r in tin g of R eynal an d H itchcock of N ew Y ork , th e o n ly a v a ilab le to m e a t th is t im e , i t ru n s b e tw een p p . 8 1 6 -8 4 5 .

3 5 T he law of 2 4 M arch 1 9 3 3 , w h ic h w as p a sse d in te rm s of th e W eim ar C o n stitu tio n , th a t i s , w ith tw o th i r d s of th e vo tes , both of th e R e ich stag and th e R e ic h sra t, b ro u g h t no sp ec ific a lte ra tio n s to th e tw o in s t i tu t io n s as d e fin ed b y th a t c o n s titu tio n - T h a t a lso m ean t th a t th e s ta te s w ith th e ir te r r i to r ia l so v e re ig n ty w e re a t le a s t th e o re tic a lly no t affect­ed by th e law , w h ich b ro u g h t a b o u t a c r is is w ith in th e n ew R eich g o v e rn m en t. A p p a re n tly , it w as th e R eich M in is te r of th e In te r io r W ilh e lm P rick w ho u n d erto o k to so lv e it th ro u g h th e g ra d u a l co o rd in a tio n of th e s ta te s in to th e p ro v in ce s of a c e n tra liz e d e n tity an d th e u ltim a te d isso lu tio n of th e R e lc h s ra t in 1934.

3 6 It w as th a t G ran d C ouncil of P asc iam , w h ich in a m eeting on th e n ig h t of 2 4 -2 5 J u ly 1 9 4 3 , su b je c te d M u sso lin i to sco rch in g c r it ic ism fo r h is co n d u ct and re p u d ia te d h im , th u s fa c ilita tin g h ia d ism is sa l by th e K ing an d h is a r re s t . N one of th a t cou ld h av e h ap p en ed in th e N a tio n a l-S o cia lis t G erm any .

37 T h at is to say , R u d o lf H ess, aa d ep u ty le a d e r of th e P a r ty , in ch arg e of th e P a r ty ’s a ffa irs , an d B rn s t R öhm , as C hief of Staff of th e S tu rm A b te ilu n g (Self-D efence Section), bet­te r k n o w n as 'S to rm T roops'. A s fa r aa R öhm w as con­c e rn e d , th a t a p p o in tm e n t w aa seen a s th e co rrec tio n of an om m iasion th a t had long been a g riev a n ce w ith th e SA. The la rg e s t p a ra m ili ta ry fo rm atio n of th e N a tio n a l-S o cia list P a r ty , th e SA had ac ted aa th e P a r ty 's in s t ru m e n t of m ass te r ro r ism , b u t a f te r 3 0 J a n u a ry 19 3 3 saw i ts ro le changed in to th e em b o d y m en t of th e re v o lu tio n from below . In fact H itle r h ad a lre a d y been m ak in g p la n s to do aw ay w ith Röhm an d re d u ce th e im p a c t of th e SA in th e p u b lic a ren a in fav o u r of th e d is c ip l in e of th e A rm y. A fte r th e 30 Ju n e - 4 Ju ly 1934 p u rg e , th e SA w as su p e rse d e d by th e SS (Schutz S taffeln - E ch e lo n s of P ro tec tio n ) w h ich w on its in d ep en d en ce from th e SA on th e occasion.

38 The in i t ia ls s ta n d fo r 'R e ic h sg e r ic h t fü r Z iv ilsa c h e n ', w h icht ra n s la te s a s 'th e R e ich C ourt fo r C iv il Law C ases'.

3 9 M ore about th e n o tio n of g o v e rn m en t m ay be found inC h ap te r IV, p p . 4 6 - 4 8 , f a r th e r on.

4 0 A rtic le 131 of th e W e im a r C o n stitu tio n s ta te d th a t if ac iv il s e rv a n t in fr in g e d h is p ro fess io n a l o b lig a tio n s to w a rd s a th ir d p a r ty , w h ile on p u b lic d u ty , i t w as th e s ta te or th e co rp o ra tio n w h ich em ployed th e c iv i l s e rv a n t th a t in p r in c ip le w as l ia b le fo r th e v io la tio n , y e t th a t l ia b i li ty d id not ex c lu d e i ts n o rm al p u r s u i t in a c o u rt of law .

72

4 1 T h a t is a p p a re n tly w h a t Sov ie t R u ss ia an d C o n u n u n ist C h in a h ave tieen fe a rin g m o st f ro m th e econom ic o v e r tu re s by th e W e s t s in c e th e o s te n s ib le e n d of th e co ld w a r.

4 2 A llu s io n to th e sy m b o l u se d fo r th e s ta te , o r w h a t h e c a lle d th e c iv i l a n d ra lig io u s co m m o n w ealth , by T hom as H obbes (1 5 8 8 -1 6 7 9 ) , th e E n g lish p o litic a l p h ilo so p h e r of th e C iv il W ar.

4 3 T h a t is th e d e f in it io n o f th e n a tio n fo rm u la ted b y E rn e s t R enan (1 8 2 3 -1 8 9 2 ) F re n c h h is to r ia n an d p h ilo lo g is t, in th e po lem ic b e tw e e n G erm an a n d F re n c h sc h o la rs re g a rd ­in g A lsa tia , in th e a f te rm a th of th e F ra n c o -P m e e ia n w a r (1 8 7 0 -1 8 7 1 ) th a t e n d e d in P ra n c e 's d e fea t an d th e an n ex a tio n of A lsa c e -L o rra in e b y P ru s s ia n G erm an y .

4 4 T h e h r s t sec tio n of th a t law a e s e r te d th e a b sen ce of a s ta te c h u rc h ; i ts second se c tio n g u a ra n te e d th e freedom of r e l i ­g ious asso c ia tio n w ith o u t l im ita tio n s , w h ile th e se v e n th sec tio n a s s im ila te d su c h a sso c ia tio n s w h ic h com m only p u r s u e d p h ilo so p h ic a l id e a ls to re lig io u s d en o m in a tio n s. F u r th e rm o re , th o se d en o m in a tio n s w h ic h h ad a lre ad y b een en jo y in g th e s ta tu s of p u b l ic - la w co rp o ra tio n s w e re a llo w ed to k eep th a t s ta tu s , w h e re a s n ew a p p lic a n ts co u ld o b ta in th a t s ta tu a o n ly if th e y w e re c ap e b le cA g iv in g a u ffic ie n t p ro o f of d u ra b il i ty .

4 5 T h a t a r tic le r e fe r r e d to th e in v io la b il i ty of th a w e ll-e a rn e d r ig h ts o f th e c iv i l s e r v a n ts w h o se te n u re w as a ffirm ed , u n le s s th e law p ro v id e d o th e rw is e , an d w h o co u ld seek sa tis fac tio n fo r a b u se a n d o th e r g r ie v a n c e s in c o u r ts of law .

4 6 A rtic le 127 c o n ta in ed o n e sec tio n o n ly , w h ic h s ta te d th a t th e co m m u n itie s a n d u n io n a ^ co n u n u n itie s h ad a r ig h t to a u to -a d m in is tra tio n w i th in th e l im its of th e law .

4 7 A rtic le 1 6 5 , c o n ta in in g a ix se c tio n a . s u r t e d w ith an a p p ea l to w o rk e rs a n d e m p lo y e es to coo p era te w i th th e e m p lo y e rs on a n e q u a l fo o tin g w ith re g a rd to w agea, w o rk in g c o n d i- t io n a an d th e o v e ra ll econom ic d e v e lo p m en t c i th e p r o ­d u c tiv e fo rce s. M o re o v e r, th e C o n stitu tio n reco g n ized th e w o rk e rs ' a n d e m p lo y e rs ' a sso c ia tio n s an d th e i r c o n tra c ts .

4 8 I t i s in th is a r t ic le (w h ic h w ith th e r e e l of th e C o n s titu ­tio n w as m ad e p u b l ic o n 11 A u g u s t 1 9 1 9 , th e e ra of w o rk e ra ' a n d s o ld ie ra ' co u n c iia ) th a t m en tio n w as m ad e of d i s t r ic t la b o u r c o u n c ils w h ic h w e re to b e o rg an ized a cc o rd in g to econom ic re g io n s , a n d of a R eich la b o u r co u n c il m ean t to r e p re s e n t w o rk e rs ' a n d em p lo y ees ' in te r e s ts . T hey w e re to fu n c tio n a lo n g s id e of d is t r ic t econom ic c o u n c ils a n d a n a tio n a l econom ic c o u n c il th a t w o u ld h av e b ro u g h t to g e th e r em p lo y e rs an d em ployees an d a ll th e so c ia lly a n d eco n o m ica lly s ig n if ic a n t p ro fe ss io n a l ^ o u p s in o rd e r to c a r r y o u t econom ic ta s k a and coopera te in th e a p p lic a tio n of th e law a of so c ia liza tio n . T h s R eich E conom ic C ouncil had b een m ea n t to s e rv e a t an a d v iso ry

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office to th e R eich g o v e rn m e n t, an d to m ake reco m m en d ­a tio n s fo r soc ial an d econom ic law s to th e R e ich stag , e ith e r th ro u g h th e g o v e rn m e n t, o r d ire c tly , th ro u g h one of its re p re se n ta t iv e s . A ll th o ae c o u n c ils w ere a lso in te n d e d to be g iven th e p o w e r of a d m in is tra tio n and co n tro l in th e ir p a r tic u la r sp h e re s . N e v e r th e le s s , l ik e m any o th e r th in g s , th ey seem to h av e been le ft w ith o u t any p ra c t ic a l con­se q u e n ce , b e ca u se th e p o lit ic a l u n ity w h ich th e y p re ­su p p o sed w as no t th e re , in th e f i r s t p lace. See a lso w h a t C arl S ch m itt sa y s in th e footnote on page 6 ab o v e . A R eich Bconomie C o u n c il, h o w e v e r, w as c rea ted on a p ro v is io n a l b a s is , a lth o u g h th e d is t r ib u t io n of i ts s e a ts tu r n e d in to a h ig h ly c o n tro v e rs ia l an d r a th e r in sso lu b le ta sk . In p ra c tic e , th e p o lit ic a l p a r t ie s p ro v e d b e tte r agen ts of th e in te re s ts of em p lo y e rs an d e m p lo y ees a lik e .

4 9 No so c ia l o r econom ic c o n s t itu t io n w as e v e r w o rk e d o u t in th e tw e lv e y e a rs of th e N a tio n a l-S o cia lis t sy s te m , b u t on ly p iecem eal g o v e rn m e n t leg ie la tio n an d P a rty m ea su re e w h ich led to th e c re a tio n of th e G erm an L ab o u r F ro n t th a t e v en ­tu a l ly c o n c e n tra te d on N a tio n a i-S o cia lia t in d o c tr in a tio n and th e o rg an iza tio n of th e w o rk e rs ' le isu re t im e , and w h ich f in an c ed i ts a c t iv i t ie s fro m th e a s se ts of th e fo rm er t r a d e - u n io n s a n d w e lfa re in s t i tu t io n s of th e s ta te an d of th e O utlaw ed p a r tie s . O n th e o th e r h a n d , a R eich g o v e rn m e n t law of 19 M ay 1 9 3 3 c re a te d ’la b o u r t ru s te e s ' to be nam ed b y th e p ro v in c ia l g o v e rn m e n ts , w ith th e ta sk to d e te rm in e w age c o n tra c ts .

50 T he sec tio n in q u e s tio n fro m H egel's te x t re a d s in B ng iish tra n s la tio n a s fo llow s: 'In v i r tu e of the s u b s ta n t ia l i ty of its n a tu ra l an d fa m ily life , th e a g r ic u ltu ra l c la ss h a s d ire c tly w ith in i ts e l f th e c o n c re te u n iv e rs a l in w h ich i t l iv e s . The c la s s of c iv i l s e rv a n ts is u n iv e rs a l in c h a ra c te r an d so has th e u n iv e rs a l e x p lic it ly a s i ts g ro u n d an d as th e a im of i t s a c t iv ity . T he c la s s b e tw ee n th em , th e b u s in e s s c la s s , is e s se n tia l ly c o n c e n tra te d on th e p a r tic u la r , an d h en ce i t is to i t th a t c o rp o ra tio n s a re sp e c ia lly a p p ro p r ia te . ' (Q uoted from th e T .M . K n o x 's tr a n s la t io n of 1 9 4 2 .)

51 U n id e n tif ia b le .52 O ne need n o t m is ta k e A dolf W ag n er (1 8 3 5 -1 9 1 7 ) G erm an

econom ic h is to r ia n an d soc ial th in k e r , w hose m ajo r w o rk , Die G rundlegung der p o litiseben Ökonomie (T he P o u n d a - tio n e of P o litic a l E conom y), p u b lis h e d in 1 8 7 6 , s t im u la te d th e sea rc h fo r a b e tte r co n cep tu a l u n d e rs ta n d in g of th e m o d ern s ta te , fo r h ia m u ch y o u n g er nam esake, A dolf W agner ( 1 8 9 0 -1 9 4 4 ) , a N a tio n a i-S o cia lia t P a r ty m em b er s in c e 192 3 a n d f u tu re G o v e rn o r of B avaria.

53 T h at is , th e p e r io d b e tw ee n th e P ru s s ia n m il i ta ry v ic to ryo v e r A u s tr ia a t Sadow a, th a t tu rn e d P ru s s ia in to th e m ajo r G erm an p o w e r a t th e e x p en se of th e H ap sb u rg B m p ire , and th e F re n c h d e fea t in th e P ra n c o -P ru ss ia n w a r , th a t led to

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th e u n ifica tio n of G erm an y .5 4 O n 2 0 J u l y '1 9 3 2 , th e head of th e fe d era l g o v ern m en t,

P ra n z von P ap en , in fo rm ed th e P ru e e ia n g o v e rn m e n t th a t it fe lt n ecessa ry to tak e o v e r th e g o v e rn m en ta l p o w e rs in P ru s s ia b ecau se i ts c a re ta k in g g o v e rn m e n t, la rg e ly Social D em ocrat, had no t ehow n enough a n ti-c o m m u n ie t zeal. M ore lik e ly th a t w aa an e x cu se fo r a ssu m in g c o n tro l of th e P ru s s ia n p o lice , th e la rg e s t a rm e d fo rce in th e fe d era tio n , second on ly to th e A rm y , an d so p re v e n t th e N a tio n a l- S o c ialista from tak in g i t o v er.

3 5 T he C ourt d id no t d e c la re th e ta k in g over of th e P ru s s ia na d m in is tra tio n by th e fe d e ra l g o v e rn m e n t u n c o n s titu tio n a l, b u t ru le d th a t th e la t te r co u ld n o t aesu m e th e re p re se n ­ta tio n of P ru s s ia in th e R e ic h s ra t w ith o u t fo r th a t m a tte r c h an g in g th e fe d era l s t r u c tu r e of G e rm an y . A s a re s u lt , th e o ld c a b in e t of O tto f ira u n re tu rn e d to B e rlin ju s t to oversee P ru s s ia 's vote in th e R e ic h s ra t, w h ile von P a p e n 's com m ie- s io n e ra occup ied th e P ru s s ia n g o v e rn m e n t o ffices , from w h ic h th ey p ro ceed ed to c lean th e a d m in is tra tio n of so c ia l- d em o cra tic and re p u b lic a n e le m e n ts , w ith co n seq u en ces c o n tra ry to von P ap en ’s o r ig in a l in te n tio n s . In th a t w ay , th e y fa c ilita te d th e N a tio n a l-S o c ia lis t c o u n try -w id e cam ­p a ig n of in f il tra tio n .

56 T h is im agery is p u re g ib b e r is h , w h ich u n fo rtu n a te ly has s u rv iv e d H itle r ite G e rm an y , a s i ta k in d haa becom e th e s to c k - in - t r a d e of p re e id e n ts an d h e a d s o f g o v e rn m e n ts and th e i r re p re se n ta t iv e s a lik e , e v e ry w h e re in th e w o r ld . C arl S ch m itt f in d a it c o n v e n ie n t to c o v e r th e o b v io u s conclu ­s io n s to be d ra w n from h ia p re v io u s e ta tem en ta , nam ely th a t th e P a rty w as s w e rv in g th e c iv i l s e rv ic e fro m i ts tra d it io n a l p u rp o se an d p ro c e d u re s to th o se of th e P a rty w h ic h w aa re p la c in g th e S tate.

57 T he G erm an w o rd s S tam m a n d Stand, w h ic h l i te r a l ly m ean 't r u n k ' an d 's u n d in g '. r e e p e c tiv è ly , fo rm an a ll i te ra t iv e p h ra se , th a t in i ts g e n e ra liz ed usag e , long p re c e d e d H it le r 's reg im e. By th a t t im e , i t h a d no m o re s e n se th an th e B nglieh 'k i th an d k in '. C o n s id e rin g th e N a tio n a l- S oc ia lis t e ffo rts to p ro d u c e a G erm an ic h e r ita g e o f th e ir o w n , w ith s gen era l a p p e a l, h o w e v e r ho llow i t m ig h t ap­p e a r to som a, i t o c cu rre d to m e, th a t by u s in g th a A nglo- Saxon te rm s in th is tr a n s la t io n , som e of th e n u an ce of th a t t r e n d w o u ld b e p re se rv e d .

5 8 T he law of 29 S ep tem b er 193 3 d e c la re d a ll fa rm s of 7 .5 to 10 h e c ta re s in d iv is ib le a n d u n sa le a b le , in o rd e r to p re ­s e rv e th a p e a sa n ts , t i l l e r s of th e G erm an so il a n d th e p ro g e n ito rs of p u re G erm an b lo o d , a s th a fo u n d a tio n of n a tio n a l v i ta l ity . O n ly au ch fa rm e rs w e re e n ti t le d to call th e m se lv e s G erm an p e asan ts . As th o se fa rm s co u ld be n e ith e r so ld n o r m ortgaged, th e m e a su re ceased to b en efit th e o w n e rs d u r in g th e p e r io d o f reco v e ry th a t follow ed.

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5 9 R eference to th e law of 7 A p ril 1933 m en tio n ed above, see note 3 1 . It a lso u n d e r lin e s th e N a tio n a l-S o c ia lis t in ­ten tio n of re d u c in g a ll th e o rg an iza tio n a l p r in c ip le s of th e c iv i l s e rv ic e to th a t of e th n ic id e n ti ty - a law of n a tu re - an d a s su ch th e u ltim a te g u a ra n te e of i ts e ffec tiv en ess . Some th re e c e n tu r ie s e a r l ie r , T hom as H obbes d a re d to e x p re s s h is d o u b ts on th e is s u e in h is De C ive (The C itizen ), c h a p te r V of an y E n g lish ed itio n .

6 0 To th a t a new a rm y law w as ad d ed on 20 Ju ly 1933 w h ic h en d ed th e ju r is d ic t io n of th e c iv il c o u r ts o v e r th e m il i ta ry , an d ab o lish e d th e re p u b lic a n p ra c tic e of e lec tin g re p re s e n ta t iv e s of th e ra n k an d f i le to th o se co u rts .

61 T he w ay in w h ich th e SA w as re in e d in , so to sp eak , six m o n th s la te r cou ld no t b e fo reseen from th e sc a n t leg isla ­tio n on th e ju r is d ic t io n of p u b lic b o d ies a v a ila b le a t th e t im e . A fte r th e fac t, a g o v e rn m e n t law of 3 Ju ly 1934 ju s t if ie d th e k ill in g s a s legal m e a su re s tak e n in defence of th e s ta te in an em erg en cy . The A rm y , a t le a s t , w as a p p a r­e n tly sa tis f ie d w ith th a t e x p la n a tio n b ecau se it fa iled to la u n c h any p ro te s t a g a in s t th e su m m ary ex ecu tio n of tw o of i t s m ost p ro m in e n t g e n e ra ls d u r in g th e pu rg e .

6 2 In th e 21 Ju ly 193 3 is su e of th e Cologne n e w sp a p e r .K öln ischer Zeitung, th e n ew s w e re p u b lis h e d th a t th e body of s tu d e n ts a t th e local u n iv e r s i ty h ad p ro c la im ed P ro fesso r D r. C arl S ch m itt 'in te l le c tu a l le a d e r '.

6 3 As t i t le , 'C ounty C o u n c illo r ' d a te d from 1 7 0 2 , and w asg iv en to th o se re lia b le o ffice rs of P ru s s ia 's c e n tra l g o v e rn ­m en t, w h ich w e re se lec te d fro m th e local n o b ili ty , and w h o se fu n c tio n w as no t o n ly th e co llection of tax e s and th e g e n e ra l a d m in is tra tio n of th e a rm y , b u t a lso th e conduct o f econom ic p o lic ie s in th e ir r e sp e c tiv e co u n ties .

6 4 In v i r tu e of th e 185 0 C o n s titu tio n , th e m u n ic ip a l co u n cilsw e re e lec ted b y th e th re e -c la s s su ffrag e . T h at m ean t th a t th e v o te rs w e re d iv id e d in to th r e e c la sse s acco rd in g to the am o u n t of d i re c t tax e s w h ich th e y p a id (the to ta l rev en u e of each co m m unity w a s d e v id e d in to th re e , a s w e ll) ; th e f i r s t c la s s of v o te rs w e re th o se w hose p a y m e n ts in d ire c t ta x e s am oun ted th e f i r s t th i r d of th e to ta l re v e n u e , and th ey w e re r e la tiv e ly few ; th e second c la s s of v o te rs w ere th o se w ho to g e th e r p a id th e seco n d th i r d , and th ey w ere m o re n u m ero u s , w h ile th e th i r d c la s s in c lu d e d th e la rg e s t n u m b e r w ho p a id v e ry sm all ta x e s or none a t a ll. Bach c la s s , th o u g h , e lec ted th e sam e n u m b e r of c o u n c illo rs , who a s e le c to rs w o u ld th e n a ll to g e th e r choose one d ep u ty for th e P ru s s ia n L andtag (D ie t) by open ba llo t.

65 T he s in g ie - l is t e lec tio n s fo r th e R e ich stag of 12 N ovem ber 193 3 w e re co up led w ith a n a tio n a l p le b is c i te on G erm an y 's w ith d ra w a l from th e League of N ations, an ac tio n a lread y c o m p le ted . The u n u su a l th in g a b o u t th a t p le b isc ite , though , w as th e w ay it w as fo rm u la ted ; 'You p e rm a n m an . you

NOTES

76

G erm an w om an, do y ou ap p ro v e of th e p o litic a of y o u r G o v e rn m en t aind a re yo u re a d y to acq u ieece in i t , a n d so l­em n ly p ro fe s s y o u r fa ith in i t? ' I ts a im w as n o t o n ly to w r in g o u t a d e c la ra tio n of t r u s t b u t a lso an o a th of f id e l i ty o f ao rta . T he o ffic ia l f ig u re s fo r th e c o u n try -w id e p a r t ic i ­p a tio n in th e tw o e v e n ts w era 9 5 .2 p e r c e n t fo r th e R e ich stag e le c tio n s an d 9 6 .3 p e r c e n t fo r th e p le b is c i te .

6 6 T he G erm an p la y u p o n w o rd s in tftis e en ten c e c an n o t b e re p ro d u c e d in B n g iish , so h e re i t is in th e o r ig in a l: ' . . .e in e irg e n d w ie z u aam m en k o a lie rte M e h rh e it e in e M in - d e rh e i t m a jo r ia ie r te u n d aue d e r A b a tim m u n g e in M a c h t- m itte l d e r Ü b e ra tim m u n g u n d d e r N ie d e rs tim m u n g m ach te '.

67 C arl £»chmitt h ad b een m ade a m em ber o f th a t c o u n c il by M in is te r P re s id e n t H e rm an n G b rin g a t th e su g g e stio n of S ch m itt’s f r ie n d a n d colleague, Jo h a n n e s P o p itz . N o tw ith ­s ta n d in g , i t m et o n ly once, th o u g h i t w as n e v e r o ffic ia lly d is so lv e d . N or w as th s in i t ia t iv s tak en o v e r b y a n y o th e r p ro v in c e , fo r th a t m a tte r .

6 8 W h e n , on 20 J u ly 1 9 3 2 , th e fe d e ra l g o v e rn m en t o u s te d th e P ru s s ie n g o v e rn m e n t, th e la t te r tu rn e d to th e P e d e re l S uprem e C o u rt in L eipzig for a rb it ra t io n . F o r th e C o u rt 's d ec is io n see no te 55 above.

6 9 M en tio n ed ab ove (se e no te 9 ), th e F e d e ra l C ouncil (B u n d e s- ra t) h ad b een th e c re a tio n of B ism arck , a n d enacted in the C o n stitu tio n of 1 8 7 1 . I t b ro u g h t to g e th e r th e N o rth a n d th e South G erm an s ta te s to so Jv s a n y co n fJic tu al i s s u e s e ith e r am ong th e m se lv e s o r w i th th e Im p eria l A d m in is tra t io n an d to d e c id e an y c o n s titu tio n a l am e n d m en ts . I t c am s to an en d w ith th e d is so lu tio n of th e B m p ire in N o v em b er 1 9 1 8 .

7 0 L a tin e x p re ss io n m ea n in g 'th e la s t resort*.71 A c tu a lly i t i s no t t h s s te e rm an th a t i s th e m o st sa tis fa c ­

to ry ap p ro x im atio n of a s ta te sm a n in P la to 's d ia lo g u e , b u t th e w e av e r, b ecau se l ik e h im , th e s ta te sm a n h a s to b r in g to g e th e r d iv e re e n a tu re s in to e u n ifo rm te x tu re a n d on th a loom of tim e , to w e av e th e l iv in g fa b r ic of a s in g le so c ie ty fro m th e w a rp a n d th e woof of hu m an q u a li t ie s (3 1 0 e - 31 le ) .

7 2 L a tin w o rd fo r 's te e rm a n ', a s g u b e rn a re m ean s to s te e r .7 3 A s a m a tte r of fa c t T ain e lik e n s N apoleon to a 'c o n d o ttie re '.

See H . T ain e , The O rig in e o f Contemporary R rance : The M o d ern R egim e (Lea O rig in es d e la F ra n c e C o n tem pora ine : Le R égim e M o d ern e), vo l. I, ch . 1 of any ed ition , French o r B ng iish .

74 Aa C arl S c h m itt r e m a rk s in T h e Q u estio n of Legality*, p .5 6 , a t t im e s H it le r h im se lf fe lt th e need of leg itim iz in g h is Own p o w e r. S e ttin g a s id e th e p u b l ic p ro c e ss io n s a n d ac­c lam atio n s , th e f i r s t m a in g e s tu re in th a t d ire c tio n w as th e cerem ony th e o p e n in g of th e n ew R e ic h su g in th e gar­r iso n c h u rc h of P o tsd am on 21 M arch 1 9 3 3 , an d in w h ich

NOTES

77

P re s id e n t H in d e n b u rg sy m b o lica lly m ed ia ted b e tw een th e h is to ric a l g lo ry a n d g re a tn ess of P ru s s ia n m o n arch y , and th e young fo rces of th e R eich em bod ied in th e new chan­c e llo r. Adolf H itle r .

75 In F ren ch in th e o rig in a l.76 The tre n d is no t a sp e c if ica lly G erm an p ra c tic e : i t may be

en co u n tered in th e W e s te rn w o rld a s a w hole , as an e v e r - ren ew ed a tte m p t to m ake th e law re fle c t th e sh if tin g social in te re s ts and b e lie fs . T he m ost n o to rio u s re ce n t exam ple th a t com es to m in d is th e A m e rican -co in ed 'h a te c r im e ', a lthough as th e m o ra l p h ilo so p h e r G eorg Sim m el (1 8 5 8 - 1 9 1 8 ) u sed to sa y , o n e m ay ha te som eone o r som eth ing tho ro u g h ly an d do n o th in g a b o u t it . T he dan g er h e re is th a t by asso c ia tio n m e re ly e x p re ss e d fee lin g s m ay b e con­s id e re d c r im e s , ev en in th e ab sen ce of any action th a t m ig h t b e d ire c tly co n n ec ted w ith them .

77 A p e r tin e n t e x am p le w as th e US P re s id e n t's te lev izeddefence of 1998 ag q in s t th e S enate’s a ccu sa tio n s of im p ro p e r b eh av io u r. I t w as b a se d on an d m ade fu ll and su ccess fu l u se of th is p r in c ip le , th a t is , of e x p lo itin g th evagu en ess in h e re n t in a b s tra c t legal n o tio n s in o rd e r tore d u ce th em to n o th in g n e ss . U ltim a te ly , th e w ho le t r ia l w as tu rn e d in to a fa rce a t th e ex p en se of th e tax -p ay ers* m oney and of A m erica ’s p re s tig e ab road .

78 N o n e th e less , i t w aa a tte m p te d , u s in g e th n ic Id e n tity a s th e m oral g ro u n d s fo r a c o n tin u o u s flow of en ac tm en ts w h ich w e re fo rm u la ted in th e m a n n e r of th e m ili ta ry c r im in a l code, and w e re m ea n t to re g u la te in d iv id u a l b eh av io u r.In th a t w ay , th e a im e d -a t c o rre sp o n d e n c e b e tw een th e c o n ten t of th e re g u la tio n and in d iv id u a l c o n d u c t w as a tta in e d .

79 T he ju r i s t s as ju d g es , p ro se c u to rs , m em b ers of th e B ar, legal c o u n se ls , law p ro fe s so rs , e tc . w e re e ith e r c iv il s e rv a n ts o r s u b je c t to th e re g u la tio n s a p p lic a b le to th e C iv il S e rv ice a s a w h o le . H ere C arl S c h m itt quo tes R oland P re is le r (1 8 9 3 -1 9 4 5 ) w h o m ade th a t d e c la ra tio n in h is q u a lity of ch ie f p e rso n n e l o ffice r in th e P ru s s ia n M in is try of Ju s tic e . D u rin g W W I, P re is le r had been tak en p r iso n e r b y th e R u ss ia n s . He b ecam e a B olshevik co m m issa r th e re , an d re tu rn e d to G e rm an y a s a c o m m u n ist, read law , and becam e a law y er . T h en , in 1 9 2 5 , he jo in ed th e N ational S o c ia lis t G erm an W o rk e r s ' P a r ty . By 1 9 3 4 , h e w as a lre ad y prom oted to th e office of S ta te S ec re ta ry in th e R eich M in ie try of Ju s tic e . T h en , in A u g u s t 1 9 4 2 , he w aa ap­p o in te d P re s id e n t of th e P eo p le 's C o u rt w h ich w as to t ry am ong o th e rs th e c o n sp ira to rs of th e 20 J u ly 194 4 p lo t a g a in s t H itle r . H itle r c a lled h im 'o u r V ish in sk y ', w h ile one of h is v ic tim s , Jam es von M o ltk e , a p p re c ia te d h is ta le n tof d e b a te r . P r e is le r d ied befo re h e cou ld p ro n o u n ce th e sen ten ce ag a in st th e p lo tte r s , w h e n a fa llin g beam c ru sh e d

NOTES

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NOTES

h im u n d e r d u rin g an a ir ra id o v e r B e rlin . I h ave lin g e red on th eae d e t i i ls in o rd e r to p o in t to th e eaae w ith w h ich one cou ld sw itc h fro m o n s ideology to th e o th e r , w h e re th e on ly e sse n tia l s h if t w aa from p ro le ta r ia n in te rn a t io n a lism to e th n ic id e n tity . C arl S ch m itt 's s t r e s s on th e la t te r a s th e s in g le m ost im p o rta n t c h a ra c te r is tic of th e N a tio n a l-S o c ia lis t sy s te m (p. 4 8 ) sh o u ld b e in te rp re te d in t h i s lig h t.

80 L atin e x p re ss io n m ean in g 'w h o ia to ju d g e '. T h is q u e s tio nw as ra is e d by T hom as H obbes (1 5 8 8 -1 6 7 9 ) in c h a p te r 2 6 , page 133 of th e L atin v e rs io n of h is L ev ia th an , a f te r he had d ec id ed th a t i t w as po w er an d not t r u th th a t m ade th e law (a u to r ita s , non v e r i ta s fa c it legsm ).

81 W h ic h w o u ld no t do aw ay w ith p o s itiv e law b u t on th e c o n tra ry fa c ilita te i t s f u r th e r d ev e lo p m en t on a s im p lif ie d , b io log ical b a s is .

82 T h at is to say , each n a tio n haa i ts ow n law an d sy s te m ofju s tic e .

83 T he quotation is u n id e n tif ia b le . I am te m p te d to c o n s id e r itju s t an in d ire c t in v ita tio n to th o se c o n ce rn ed to read M o n te sq u ieu 's S p ir i t o f th e L aw s, p a r t ic u la r ly th e f i r s t th ir te e n books, an d re fle c t on th e co n te m p o ra ry s itu a tio n in G erm any in th e l ig h t of th e F re n c h th in k e r 's re m a rk s .

THE QUESTION OF LEGALITY

L ie u ten a n t W ilh e lm S ch e rin g e r w as one of th e th re e young R e ic h sw eh r o ffice rs of th e g a rr is o n a t U lm p u t on t r ia l a t th e F ed eral H igh C ourt in L eipzig fo r m ak in g p ro p ag an d a fo r th e NSDAP in s id e th e A rm y. H itle r w as in v ite d to te s tify on th e t h i r d day of th e t r ia l , 25 S ep tem b er 1 9 3 0 . Joach im Feet h as in p a r t re c o n s titu te d H it le r 's oath on th e occasion , in w h ich by c o n ju r in g up th e God A lm ig h ty , he a s su re d th e ju d g e th a t i f he cam e to p o w e r leg a lly , he w o u ld s e t up s ta te t r ib u n a ls w ith in h is legal g o v e rn m e n t, em pow ered to p a s s ju d g m e n t on th o se re s p o n s ib le fo r th e m is fo r tu n e s of th e n a tio n , w ith th e p o s s ib i l i ty of a few h ead s ro llin g leg a lly , a s a re s u l t .T he law of 26 Ja n u a ry 1 9 3 7 , a lso k n o w n a s th e C iv il Se rv ice A ct, d e c la re d th e c iv i l s e rv a n t d ire c tly re sp o n s ib le to H itle r as 'e x e c u to r ' of th e w il l of th e S ta te c a r r ie d by th e P a r ty . It a lso m ad e th e c iv i l s e rv a n ts re sp o n s ib le fo r re p o rtin g a c tiv it ie s h o s tile to th e S tate to h is p e rm a n e n t u n d e r -s e c re ta ry o r to th e head of th e R eich C h an ce lle ry , M in is te r L am m ers. S w earin g an o a th to H itle r a s th e re p re se n ta tiv e of th e S tate c a r r ie d by th e P a rty w as a lso m ade com p u lso ry by th a t law . aa w e ll a s th e ex c lu sio n from th e C iv il S e rv ice of a ll th o se w ho a t th e tim e of ap p o in tm en t had b een ex c lu d ed fro m o r been re jec ted by th e Party .

79

T he q u o U tion h a s bean tr a n s la te d e s i t ie re p ro d u c e d by C a rl ScbntiU in h is te x t . No a tte m p t h a s b een m ad e to h a rm o n ize i t w i th th e te x t a s i t a p p e a rs in th e B ng iish tra n s la t io n of Economy and Society , vol. II , p . 8 9 S , New Y o rk , 1 9 6 8 .See L en in , Collected W orka, 1 4 th e d ., vo l. 3 1 , p p . 9 6 - 9 7 , M oscow , 1 9 6 6 .

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INDEX

a lleg ian ce , 41a u to -a d m in is tra tio n , 13 , 17,

18. 20 . 3 7 . 3 8 . 39

B ism arck , P r in c e O tto von (1 8 1 5 -1 8 9 8 ) , P ru s s ia n a ta team an an d R sich C h an ce llo r. 3 3 . 4 2 . 4 3 .4 4

B rau n , O tto (1 8 7 2 -1 9 5 5 ) , D em ocrat p o litic ia n , M in ­is te r P re s id e n t of P ru s s ia , 19

C anet, L ouis , 55 c iv i l se rv ic e , 6 , 12, 14. 17,

32 , 3 4 , 5 1 , 5 6 . 5 7 . 6 0 ; c a s t of m in d , 61 ; m oral re s is ta n c e of, 58

c iv i l w a r, 5 7 , 58 , 63 c o n s titu tio n , IS ; B ism arck 's

fe d e ra l. 4 2 , 4 3 , 4 4 ; p ro ­v is io n a l [em p o w erm en t law ], 4 , 5 , 6 , 7; W eim ar, 3 . 4 . 5 , 6 , 7, 8 , 9 . 2 8 - 2 9 , 3 0 . 4 3 . 56

D aw es P lan , 5 dem ocracy : id ea l, 27 d e p o litic iza tio n , 1 7 -1 8 , 19,

20 ; l ib e ra l, 16 . IS

e le c tio n s , 5 , 1 0 -1 1 , 3 8 , 39 ; aa o rgan iza tio n a l p r in c ip le , 37 ; an d p le b isc ite , S, 10; v s . se lec tio n , 3 9 , 40

e th n ic id e n ti ty , 4 8 ; an d ad ­m in is tra tio n of ju s tic e ,5 0 ; and p o litica l le a d e r­s h ip , 4 8 ; a s p r in c ip le of G erm an n a tio n a l-so c ia lis t s ta te , 4 8 , SO; and race ,4 8 . 51

[ev ery o n e ag a in s t e v e ry o n e e lse], 2 7 -2 8

P ie h le r , K a r l ( b . l 8 9 5 ) ,

law y e r , NSDAP o ld g u a rd , com m unal po licy e x p e r t . C hief B u rg o m aste r of M u n ich from M arch 1 9 3 3 , SS le a d e r . 27

P ra n k , H ans (1 9 0 0 -1 9 4 6 ) , law y e r , R e ich stag d e p u ty from 1 9 3 0 , B av arian and th en R eich M in is te r of J u s tic e from 1 9 3 3 , fo u n d ­e r of th e R eich A cadem y fo r G erm an L aw , 19n , 24 , 48

F re is le r , R oland (1 8 9 3 -1 9 4 5 ) , SO

G d ring , H erm ann (1 8 9 3 -1 9 4 6 ) R e ich stag d e p u ty from 1 9 2 8 , i ts P re s id e n t from 1 9 3 2 , R e ich M in is te r , P ru s s ia n M in is te r of th e In te r io r an d M in is te r P re s id e n t, o rg an ized p o lit ­ica l p o lice an d f i r s t G er­m an c o n ce n tra tio n cam p at O ra n ie n b u rg , 3 6 , 40

H eck. P h ilip p (1 8 5 8 -1 9 4 3 ) , legal sc h o la r , en o b led in

.1 9 1 2 , 4 9 . 50 H eckel, Jo h a n n e s ( b . l8 9 9 ) ,

ju r i s t , e x p e r t in s ta te and ch u rch la w , 44

H edem aon, J u s tu s ( b . l8 7 8 ) , c iv i l , a d m in is t ra t iv e and Rom an law sc h o la r , 49

Hegel, G eorg W ilh e lm F r ie d ­r ic h (1 7 7 0 -1 8 3 1 ) , G erm an p h ilo so p h e r and p o ly m a th , 13 , 3 1 . 3 5 ; h is Ph iloso ­p h y of R ig h t (1 8 2 1 ) , 31

H eld . H e in ric h (1 8 6 8 -1 9 3 8 ) , le a d e r of B av arian People 's P a r ty , M in is te r P re s id e n t of B avaria from 1924 , lif ted b an on H itle r 's p a r ty a n d n e w sp a p e r a fte r

81

ZNOBX

th e la tte r '» re le a se from p riso n , waa o u s te d in M arch 1933 . 19

d ’H en d eco u rt, M a rie -M a d e le in e 5 5 n ■

H ess, R udo lf (1 8 9 4 -1 9 8 7 ) , H itle r 's p r iv a te s e c re ta ry , th en L ead er's d e p u ty an d R eich C ab in e t M in is te r , 7, 21

H in d e n b u rg , Paul von (1 8 4 7 - 1934), F ie ld M arsh a l,R eich S u p rem e C om m ander of A rm ed F o rces (1 9 1 6 - 1918} and P re s id e n t from 1925 , 5 7 , 58

H ir ts ie fe r . H e in rich (1 8 7 6 - 1 941), p o lit ic ia n , trad«*- un io n o rg an ize r, P ru s s ia n M in is te r of P u b lic W el­fa re , a r re s te d an d s e n t to c o n cen tra tio n cam p in S ep tem b er 1 9 3 3 , 19

H itle r , A do lf (1 8 8 9 -1 9 4 5 ) , le a d e r of NSDAP and G erm an C h an ce llo r. 5 . 9 , 3 5 . 5 6 . 5 7 . 5 8 . 59 ; hi# book M y S trugg le [M ein K am pf], 2 0 , 57

ju s t ic e , 16, 5 1 , 58

K an t. Im m anuel (1 7 2 4 -1 8 0 4 ) , G erm an p h ilo so p h e r , 61

K elsen , H ans ( b . l8 8 1 ) , legal sc h o la r an d lead in g expo­n e n t of legal p o s it iv ism ,16

L ab an d . P au l (1 8 3 8 -1 9 1 8 ) , ju r i s t , th eo re tic ia n of th e s ta te law of th e Second G erm an R etch , 33

L ab e rth o n n iè re , L ucien (1 8 6 0 - 19 3 2 ), C h rie tian F re n c h th in k e r an d e d u ca to r, re co n c ilin g catho lic C h ris tia n ity w ith m o d ern ­i ty . 5 5 , 6 1 . 63

L am en n a is , F é lic ité , R o b e rt de

(1 7 8 2 -1 8 5 4 ) , F re n c h p h i l - o sp h e r an d a u th o r , 60

L am m ers, H ans H e in ric h(1 8 7 9 -1 9 6 2 ) , C hief of th e R eich C h a n ce lle ry from 1933 , p re v io u a iy s ta te of­f ic ia l in th e R eich M in is ­t r y of th e In te r io r , 39

le a d e rsh ip , 4 6 , 4 7 ; ab sen ce of. 34. 3 5 . 4 0 -4 1 ; as core co n cep t of law , 40; e lim in a tio n of, 4 3 , 44 ; idea of, 37 ; p o lit ic a l . 8 -9 , 11, 13, 18; v s . a d m in is ­tra tio n of law , 4 6 ; and r e s p o n s ib i li ty , 3 9 ; n a tio n ­a l-s o c ia lis t co n cep t of, 48 ; of th e NSDAP. 14

leg a lity , 6, 7, IS . 16, 28 .3 4 , 57 , 5 8 ; from a fu n c ­tio n a lis t b u re a u c ra t ic p o in t of v iew , 6 0 ; an d illeg a l­i ty , 2 8 , 63 ; and ju s t ic e , 6 1 ; v s . leg itim acy , 59 ,60 ; an d legal ob lig a tio n , 4 1 ; p o s itiv e so u rce of,59 , 60 ; tran s fo rm a tio n of law in to , 6 2 , 6 3 ; as w eapon , 63

leg is la tio n . 5 7 ; and p a r lia ­m en t, 15, 25 ; p o s s ib i l i t ie s of, 8 , 9 - 1 0 ; by g o v e rn ­m en t, 23 ; h ie ra rc h ic a l o rd e r o f, 9; 'm o to rized ',5 6 , 58; 'd isp o s i t io n ', 58 ; ru lin g , 58

leg is la tiv e : b o d y , 16; v s . ex ­e cu tiv e , 9 , 39

leg itim a tio n , 7 , 58 , 5 9 ; con­s t i tu t io n a l , 3; h is to r ic a l. 6 3 ; and p le b isc ite , 4 , 5

L en in , V la d im ir Ily ch U lya­nov (1 8 7 0 -1 9 2 4 ) , R u ss ian B olshev ick r e v o lu tio n a ry , head of th e C ouncil of th e P eop le 's C o m m issars a fte r O ctober 1 9 1 7 , 63

L ou is N apoleon B onaparte (1 8 0 8 -1 8 7 3 ) , F ren ch P re s id e n t, th en E m p ero r,

82

INDEX

60 iL u th e r , M a rtin (1 4 8 3 -1 5 4 6 ) ,

G erm an theologian and re lig io u s re fo rm er, 61

M a iw a ld , Serge, 62 M ay er, O tto (1 8 4 6 -1 9 2 4 ) ,

ju r i s t , th e c la ss ic th e o re t­ic ian of G erm an a d m in is ­t ra t iv e law . 32

M ed icu s , P ra n z A lb re ch t (b . 18 90), law y er, m in is te r ia l co u n se llo r in th e R eich M in is try of th e In te r io r , ac tiv e in d e fin in g th e p u b lic law of th e new reg im e, 5n

[ 'm ig h t m akes r ig h t'] , 5 5 , 6 2 m onopoly: of th e p o lit ic a l . 15 M o n te sq u ieu , C h arles de

Secondât, b aron d e (1 6 8 9 - 17 55), F ren ch a u th o r and soc ial th in k e r , 51

N apoleon B onaparte (1 7 6 9 - 18 2 1 ), C orsican o ffice r. C o nsu l, and B m peror of th e F ren ch from 1804 to 1 8 1 5 , 47

n a tio n a l-ao c ia lism : ju s t ic ia ry c h a ra c te r , 3 6 -3 7 ; m ode of m an ifes ta tio n , 36

N e u b e rt, H erm ann ( b . l8 9 6 ) , legal co u n se l of th e NSDAP d is t r ic t of G re a te r B e rlin , d ire c to r of B e rlin 's p u b lic p ro se cu to r 's office, Sn

n e u tra li ty , 3N ico la i, H elm ut (1 8 9 5 -1 9 5 5 ) ,

la w y e r , m em ber of P ru s ­sia n S ta te C ouncil, de le­gate M in is te r P re s id e n t in M ag deburg , m in is te r ia l d ire c to r in th e R eich M in is try of th e In te r io r , 48

n o rm s, 17, 51 ; Ju r id ic a l, IS . 16; an d n o rm aliza tio n , 4 8 , SO; an d no rm al s itu a tio n ,

4 8 ; and n o rm a tiv ism , 4 8 .4 9 , 51 ; and th e fac tu a l, 6 2 ; l ib e ra l , 16

offices: h ig h , of th e R eich , 8 -9

P ap en , P ra n z von (1 8 7 9 - 1 969), p o litic ia n of th e e x tre m e r ig h t faction of th e C atho lic C en tre P a r ty , m em b er of th e P ru s s ia n U n d ta g (1 9 2 1 -1 9 3 2 ) , in ­s tru m e n ta l in H itle r 's a sc en t to p o w er, V ice- C h an ce llo r u n t i l 1 9 3 4 , 34

p a r ty : n a tio n a l-so c ia lis t , 12- 13, 21 , 23 ; i ts ro le in p o litic a l u n i ty . 14; its co n g ress a s p a r lia m e n t, 7; p o lit ic a l , 12; to ta lita r ia n , U . 57

P fu n d te r , H ans ( b . l8 8 5 ) ,law y e r , m in is te r ia l coun­se l, S ta te S e c re u ry of th e R eich M in is t ry of th e in te r io r , co -ed ito r w ith N e u b e rt (q .v .) of Das n su e d e u tsch e R êichsrecht [The New G erm an R eich L aw ], Sn, 6 n

P lato (4 2 7 7 -3 4 7 BC). G reek p h ilo so p h e r: h is S ta tes­m an. 47

p lu ra l ism , 2 1 . 37 p o s itiv ism : legal, S, 16 , 3 2 ,

5 0 . 6 1 . 6 2p u b lic law , 3 , 4 , 3 8 , 49 ;

n a tio n a l-s o c ia lis t , 4 , S, 8 , 9

'q u is ju d ic a b it? ', SO

re fe re n d u m , 10; and p eo p le 's w il l, 10

rev o lu tio n : co m m u n is t, 62;G erm an , 7

R itte rb u a c h , P au l ( b . l9 0 0 ) , ju r i s t , c o n s titu tio n a l and p u b lic law sch o la r.

83

INDEX

co -ed ito r of Zeitachrift fü r Politik [R eview of Polit­ics] an d Der deutache Juriatenazeitnng [The G er­m an J u r i s t 's Jo u rn a l] , 14, 15

Rom ano, San ti (1 8 7 5 -1 9 4 6 ) , c o n s titu tio n a l law e x p e rt , P re s id e n t of th e Ita lian C ouncil of S ta te (1 9 2 8 - 1 943), 21

S ch le ic h er, K u r t von . (1 8 8 2 - 1 934), a rm y g en era l, fo rm er p o litic a l a d v is e r to th e R eich P re s id e n t, a s­sa ss in a te d on 30 Ju n e 1 9 3 4 , 34

Sch m o lle r, G u s tav ( 1 8 3 8 - '1 9 1 7 ), h is to r ic a l econom ist a n d soc ial th in k e r , 32

S e v e rin g . C arl (1 8 7 5 -1 9 5 2 ) , Socia l-D em ocra tic p a r lia ­m e n ta ria n , P ru s s ia n M in ­is te r of th e In te r io r d u r in g W eim ar, ch ie f sp o k esm an of th e P ru s s ia n C ab in e t in th e ab sen ce of O tto B rau n . 19 . 42

S im ons, W a lte r (1 8 6 1 -1 9 3 7 ) , legal ach o la r , and counse l in th e G erm an Foreign O ffice, 39

Som bart, W e rn e r (1 8 6 3 -1 9 4 1 ) soc ial th in k e r and p o lit­ica l econom ist, 13

S U h l, F .J . (1 8 0 2 -1 8 6 1 ) , lead ­e r of P ro te s tan t a g ra r ian c o n se rv a tism in P ru s s ia , a d v is e r to K ing F re d e ric k W illia m IV, in f lu e n tia l in th e fo rm u la tio n of th e P ru s s ia n C onatitu tion of 1 8 5 0 , 3 3

s ta te , IS . 19; a d m in is tra t iv e m ach in e of, 6; i ts leg a lity v s. law , 15; s tro n g , 37 ; a n d p o litic a l u n ity , I I ; G erm an th eo ry of, 13, 3 1 , 3 2 , 35 ; a d m in is tra tiv e .

3 2 , 33 , 3 4 ; a u th o r i ta r ia n , 9; B o lsh ev ik , 13; b o u r­g eo is-leg a l, 2 4 , 25 , 28; concep t of. 2 4 -2 5 , 3 3 ,4 1 ; F a sc is t , 13, 2 1 ; fed ­e ra l, 18, 19, 20; le a d e r- , 4 1 , 52; leg is la tiv e , 34 ; as L ev ia th an . 26 ; l ib e ra l - d em o cra tic . 11, 13 , 2 6 - 27 , 30 , 3 2 3 8 ; m o n ar­c h ic a l-d y n a s t ic , 18, 61; n a tio n a l-so c ia lis t , 4 , 5 , 7, 8 , 13. 15 . 2 1 . 3 7 . 39;4 8 ; tr ia d ic s t r u c tu r e of, 1 1 -1 3 , 2 2 , 3 0 . 3 9 -4 0 ; to ta l, 3 7 , 3 8 -3 9

S te in , H e in r ic h , b aron vom u n d zum (1 7 5 7 -1 8 3 1 ) , P ru s s ia n a d m in is tra t iv e o fficial an d re fo rm e r, 38

S te in , L orenz von (1 8 1 5 -1890), soc ial th in k e r and p ro fesso r of a d m in is tra t iv e sc ien ce, 3 1 , 32

su p e rv is io n , 4 2 ; c o n s titu tio n ­a l. 44 ; c h a ra c te r is tic fac to rs of, 4 4 -4 5 ; and le a d e rs h ip , 4 2 ; of R eich , 4 3 , 44 ; of s ta te , 4 6

T ain e , H ip p o ly te (1 8 2 8 -1 8 9 3 ) , F rench p h ilo so p h e r , c r i t ic , p sy ch o lo g is t and h is to r ia n , 4 7

to ta l w a r, 58 t ra n s it io n , 6T rie p e l, H e in ric h ( b . l8 6 8 ) ,

ju r i s t , e x p e r t in s ta te and in te rn a tio n a l law , 43

u n ity ; p o litic a l, 11, 13 , 13, 20 , 2 1 . 2 2 . 35 ; ag en ts of, 3 0 -3 1 ; e th n ic Id e n tity a n d , 17; an d fe d e ra l o r­g an izatio n , 1 8 -1 9 , 2 0 . 44 ; s ta te a n d , 12

W ag n e r. A dolf (1 8 3 5 -1 9 1 7 ) ,3 2

W eb e r, M ax (1 8 6 4 -1 9 2 0 ) ,

84

INDEX

socio log ist, h is to ric a l econom ist an d p o litica l p h ilo so p h e r , 6 0 , 6 1 -6 2

A b o u t th e E d ito r SIM O NA DRAGHICI is a E uropean-A m erican social scien tist who am ong other things holds a PhD degree in socioiogy fro m the Liniversity o f Texas at A u stin . H er in terests in the com parative s tu d y o f social in stitu tio n s have led h er m ore recen tly to the analysis o f the recurrent phenom enon o f civilizational decline.