CARL SCHMITT

STATE, M O V E M E N T, PEO PLE
THE TRIADIC STRUCTURE OF THE POLITICAL U N ITY (1933)

THE QUESTION OF LEGAUTV
(1950)

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

PLUTARCH

PRESS
,

C o rv allis, o r

Th is selection in English translation first published in the United States by P LU TA R C H PRESS. Corvallis O R , in 2 0 0 1 .

T h e first text, originally published in Germ any as S T A A T , B E W E G U N G . V O LK : die Dreigliederung der politischen Einheit, von S ta atsra t Prof. D r. Carl S chm itt. Copyright in the German text © 1 9 3 3 by Hanseatische Verlagsanstalt, Hamburg

T h e second text, Das Problem der Legalität, published as part of V E R FA S S U N G S R E C H TLIC H E A U F S Ä T Z E A U S DEN JA H R EN 1 9 2 4 -1 9 5 4 , von Carl Schm itt. 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 ® 2 0 0 1 by Simona Oraghici

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L ibrary o f C ongress C ataloging-in-P ublication D ata S chm itt. C arl. 1888[Staat. B ew egung, V oik. English] State, m ovem ent, p e ^ l e ; th e triadic structure o f th e political u n it y ; T he question o f legality / C arl S c h m itt; edited, translated, and w ith a preface by Sim ona D raghici. p. cm . Includes bibliographical references and index. ISB N 0-94 3 0 4 5 -I8 -5 (alk. paper) 1. G erm any—P olitics and goven u n en t—1 9 1 8-1933.2. G erm any— P olitics and g o v e rn m e n t- 1933-1945. 1. D raghici. Sim ona, 1937-11. Schm itt, C arl, 1888- Problem d er L egalität. English III. T itle: Q uestion o f legality. IV . Title. JN 3 9 52 .S33 2001 9 4 3 .0 8 6 -tlc 2 l

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TABLE OF CONTENTS
PREFACE by Simona Draghici XXV VI

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

Chapter I : The P resent Constitutional Situation Chapter I I : The Triadic S tructure of the Political Unity Chapter III: The Binary State C onstruction of Liberal Democracy and the German State of the Civil Service Chapter IV: Leadership and Ethnic Identity as Basic Concepts of the NationaiS o dalist Law THE QUESTION OF LEG A U TY NOTES INDEX

3 11 24

36 55 65 81

M OVEM ENT. Whereas. Carl Schm itt in turn could n o t help making the m o st o f the third aspect o f the form ula o f persuasion in an attem p t to dispel illusions and draw distinctions as clearly as the circum stances ahowed. It was m eant to facilitate the understanding and the retention b y ail and su n d ry o f the social and poiiticai significance o f som e o f the acts p er­ fo rm e d and decisions taken particularly with regard to the legislative and the . or rather. sim ple w ording so that the ordinary man (Goehheis p referred the term 'w oodcutter') couid understand. b.1 8 7 2 ) VI . o f tw o legal re v o ­ lutions. 'under the p re te x t o f w orking out Jegal concepts within normativeJy predeterm ined abstractions'. G r i l l p a r z e r ( 1 7 9 1 . c. concepts and institutions. the lo ngest in that year. Thus. Carl Schm itt's STATE.P. o r as we p re fe r to call it nowadays. in the end. p a st the audience's ejcpected ceiling o f endur­ ance. and yet. dominated b y the basic principle o f security.PREFACE It is said that Plato's dialogue THE ST A T E SM A N is fir s t and fo rem o st a logical exercise in the art o f definition through differentiation meant to im prove the pow er o f reasoning. PEOPLE m a y be said to be fir s t and forem ost an exercise in the technique o f m ass persuasion. a period also know n as the legal revolution. trans­ fo rm s all notions. Carl Schm itt M O T T O :' T he w a y of t h e n e w m a n k i n d goes f r o m h u m a n i t y t h r o u g h n a ti o n a li t y to b e s t i a l i t y . The technical form ula behind this essay m a y be described b riefly as: a.u d id ai spheres in the life o f Germany between 30 January and 1 December 1933. and I quote. The latter. as Carl Schm itt h im self would say fo r ty -fiv e years later. and in which the legal state. 'the rule o f law'. is the intermediate fo rm . ' . So. too. continuous repetition to reach saturation. is sustained b y his conceptual analysis o f the transition fro m iiherai democracy to totalitarianism under the conditions o f legality. Plato could n o t help turning the exerd se into an o p p o rtu n ity to reflect on the nature o f the statesman as an ideal type. the content should be interesting enough so as to m ake everyb o d y else give it careful attention. calculability and measurability. The continuous interest in this w riting o f his.

and even make cabinet m inisters hang their heads in embarrassement. in THE FIN AN C IAL TIMES. fro m the safety o f Switzerland. Carl Schm itt had been holding the highest functions which he would ever enjoy as a ju rist under H itler's regime. the nostalgia fo r totalitarianism fin d s expression in the complaints about the absence o f a definite goal that would mobilize energies and g ive them direction. one o f the Young C yber-T urks was underlining the dichotom y. which he tried to convince w hom ever would heed him that existed between the perm anent revolution o f radical change. progress and democracy. One may easily recognize here the aspirations o f the European Union. Such complaints com ing fro m a German foreign m inister. heave m any a sigh o f revolutionary rom antic regret. on the one hand. and create optim um conditions fo r its acceptance. in other w ords.W W lI H ungary. I t is in this spirit that earlier in the year 2000. the stagnation and the despondency which he attrib u ted to and equated with authoritarianism and autocracy. his only contribution to National Socialism. as his fo rm er disciple Waldemar Gurian was to call him in 1934. o r the President o f a state like South Africa. one was treated with advertizing as ideology. 'every obligation in order to become a legal d u ty m u st have a content that is norm atively measuraWe and subject to verification b y a judge'. Although b y December 1933.39). to say nothing o f the basic principle o f the constitutional governance o f the United States. it was som eone trying to p ro m o te his global internet business. are the ostensible factors that press it on in this century. (Ironically. (p . b y juggling with norm atively predeterm ined abstractions and present them as justificatory legal concepts. and which fo r him meant freedom .PREFACE goes on. an ethnic German b o m in p o s t. and on the other. the free-m a rket globalization. substantive though unintentionai. (Rem em ber the Year 2000 Presidential Elections?) I t is a concern that is carried over into the 2 1 st century. the so-called inform ation technology and its corollary. neither then nor later did be become 'the crown ju rist o f the Third Reich'. On the other side. There. with the alacrity o f the innocent and seif-righteous. was to VII .

w ithout in the interval harm ing anybody in particular but himself. that fro m the v e ry beginning he had been aware o f the nefarious role H itler would play in G erm any's history i f roped in. in that im possible jo b o f governor. had made adventurism a VIII . tired o f FranJc's hallucinations.PREFACE have pointed the w ay b y which any m ass m ovem ent with enough stro n g will and determination could come into po w er constitutionally in the Weimar Republic.11). and in particu­ lar o f A rticle 76. under the perm anent challenge o f the SS. 1988). o r sta y on and make the m o st o f his professo rsh ip as long as possible. confronted b y the unpredictability o f the new rule and faced with the chance o f experiencing at fir s t hand the dism antling o f a social and poUtical order o f which he h im self had been a p a rt. I said that Carl Schm itt m ig h t be counted am ong those who had thought that they could influence H itler's thinking in the direction o f a con­ stru ctive solution o f G erm any's intem ai crisis (p . managed to survive it. on a persona! level. who was imagining that role fo r him self as he dream t o f compiling fo r H itler 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 . A closer reading o f som e o f his writings o f that period has since convinced me o f the contrary. quite cor­ rectly as even ts would c o n ftm . He did that in his 1928 book. H itler's personal lawyer and fu tu re governor o f Poland. n o t realizing that H itler needed no code o f laws. treading on eggs and living with Damocles' sw o rd hanging over him unreJentingly. He was fo r certain the adventurer he later claimed to have been. Indeed. and change its stru ctu re altogether. since h e h im self was the law in virtue o f the dictum that m ig h t m akes right.) I t was H ans FranJc. and the social instability which was feeding it. He tooJc that chance. Eventually. namely. A s a m atter o f fact. Carl Sch m itt had the choice either to emigrate or go into internal exile. which allowed a tem porary tw o -tiu rd s m a jo rity in parliament 'to revise the constitution'. DC. the unpredictability o f political life. In the Introduction to THB IDEA OF REPRESENTA­ TIO N (W ashington. and in the bargain. Hitler would dispatch him to Cracow. VERPASSUNGSLEHRE fConstitutionai Theory] b y showing the weaknesses o f the W eimar Constitution. but considered i t to be lim ited to H itler's lifespan.

fu rth er split the law yers. through concrete evaluation o f circum stances. he earned a doctoral degree fro m the same university that enabled him to turn to teaching instead. and in those conditions. that position IX . som e o f which had managed to expand at the expense o f o thers in the afterm ath o f victorious m ilitary alliances. settlem ent) that was both expeditious and better adapted to the concrete case. where it had been endemic fro m the beginnings o f its European coloniza­ tion. which coincided with the rapid develop­ m en t o f capitalism and industrialization in the conditions o f a m ultitude o f sovereign states o f various sizes. between the m orality o f the Enlightenm ent. F or him the foundation o f the Jaw was sociological. and the m orality o f business. Carl Schm itt started in life as a civil servant o f that Em pire in 1910.e. during the 1914 war. P russia had become the largest o f the German monarchies after the A ustrian Em pire in the second h a lf o f the 19th century. i f n o t earlier. and given the abnormal conditions o f the times. with its human dignity and social justice. to contribute to the e ffo rts o f institutional recon­ struction. and so it was not experienced as a sym ptom o f the unravelling social fabric. That battle rehected conflicting attem pts to produce corresponding in stitutions that would m o st satisfactorily reflect the policy o f federalization under Prussian hegem ony. between substantive justice and form al legality. and m o re exactly in 1916. The conflict between tradition and m odernity. The p erio d o f disintegration o f the federal structure o f G erm any that made itse lf fe lt even before the end o f the Great War o ffered him unlimited opportunities.PREFACE trait o f everyday life in Europe fro m the time o f W W I. in America. Then. in a m ore stable age o f the Second Reich. (On the other hand. B rought 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 ew ork. as against the application o f general n o rm s to particular cases. 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. in his new position. after he bad received his law degree fro m the C/hiversity o f Strassburg.) Born in 1888. He joined in the long-standing battle between ju rists in Germany. given the fact that as a result o f alliances and annexations. adventurism was ju s t normal. and in Jegal term s.

in his search o f objective standards and n o n -fo rm a l criteria that could serve as source fo r judicial decisions.lex est. A t the same time. Carl Schm itt iooJced back to the endeavours o f the German reform ers at the turn o f the 19th century. characteristic o f the parliamentarian legislative state.27). which paraUeled the irrationalization o f religion and the demands o f popular justice. 1932. L o ren z von Stein. a consequence o f the increasing reification o f the legal technique. and which affected the very notions o f law and justice. a basis fo r poUtical unity. battered b y the p o sitiv ists’ ram. it was his conviction that no dem ocracy m ight su rvive which was not grounded in the prem ise that the people was good and its will was enough m otivation: it suffices that the people wiUs (il su ffit qu'il . a phenom enon that had a sh o rt-lived recurrence in the fir s t few m onths o f what was to become W W I. it m ay be said that he took advantage o f the grow th o f various currents in the rationalization o f legal thinking and the flig h ts into the irrational. with the ju ris­ prudence o f interests. it was his reahsm that made Carl Schm itt aware o f the subversive character o f the am orphous norm s behind pubUc law. devoid o f sacredness o f content. quod popuius ju b et (L E G A L IT Ä T UND LEG ITIM ITÄT. and the natural law o f the Catholic scholars. or in his own words. unprom pted political unity o f all social groups.PREFACE am ply allowed him to perceive the inconsistency in the coexistence o f the custom ary law. it is the will o f a m ajority at a certain m om ent . F urtherm ore. p . A t the same time. alongside o f the continuous balancing o f in terests and other phenomena that tu rn law into a continuously transformable technical apparatus. A gainst the disruptive tendencies at w ork in his country's build-up. and fo r a com prehen­ sive rational legislation. the irrational character o f the facts o f life. He made a career out o f combating them during the Weimar RepubUc. when the French m ilitary advancement and occupation brought about an unprecedented. historicist and halfm ystical. He studied the theories o f a later refo rm ist. and focussing on those ends that are inherent in or favoured b y certain fo rm s o f political authority. Carl Schm itt was n o t a democrat because fo r him the law in a democracy was the ephemeral will o f the people as it made itse lf m anifest at a given m om ent.

before the Federal High C ourt in Leipzig. On the o ther hand. Kelsen is mentioned b y name. which after all. I t had nothing to do with the advance o f the National-Socialist m ovem ent. (If. He won his n o to riety as an in ternational authority on constitutional law with the publication o f his opus magnum. So. In the same year. in the p resen t essay. the Reich. it is because he had already managed to be o u t o f danger. fro m S trassb u rg to Munich. and had been well known in the Juridical drcJes. where the p leb isd ta ry Reich president was presented as the p ivo t o f the country's political u nity when parliament had fallen victim to in te r-p a rty factionalism and conflicts o f interest. On the other hand. their sw ord-crossing in m atters related to the nature o f law and o f justice was much older than the advent o f Hitler. as it took him away fro m the wheeling-and-dealing at the centre o f political pow er in Berlin where n o t long before he had favoured the suppression o f the terrorist form ations and a m ilitary take-over. That also maJces obvious w hy he couid n o 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.PREFACE veuC). and lost its JegisJative pow er. would take positivism to new heights. starting fro m the spring term 1933. and then to Bonn U niversity (1922-1928). he had already said what he wanted to say about political leadership in his w riting o f 1931. although he had never imagined H itler to fill that role. the U niversity o f Cologne made him an o ffe r fo r a p ro fe sso r­ ship a t that institution. which o ffer Hans Kelsen. hoped he. to Berlin. XI .) I suspect that at the time Carl Schm itt found the move to Cologne salutary. to G reiswaid. so to speak. and also that parliamentarian dem ocracy in order to be genuine needed to reflect in its laws the will o f ail the people as a whole. VERFASSUNGSLBHRE. 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 P russia vs. DER HOTTER DER VERFASSUNG [The D efender o f the C onsti­ tution]. Schm itt. b y m oving to Switzerland. Carl Schm itt returned to Berlin where he taught at the Graduate School o f B usiness Adm inistration [Handels HochschuieJ between 1929 and 1932. in 1928. in the autumn o f 1932. would accept. a m em ber o f the faculty there.

PREFACE

He was alm ost fo r ty -fiv e years old, and already counted a iong and respectable list o f publications ranging fro m belles-lettres and political philosophy to jurispru­ dence, when on his way to Rom e 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 deem ed useful in the form ulation o f the governm ent legislation concerning the relations between the states (Länder) and the Reich. Indeed, none o f his ideas did ultim ately find their way in F rick'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 w orked out in the inner sanctum o f the Chancellery and the M in istry o f the Interior. The humiliation m u st have been so com plete that .he never adm itted it openly. Seem ­ ingly. it increased his anim osity towards von Papen who had involved him in the affair. A s a m atter o f fact, von Papen, alongside Schleicher, whose adviser he, Carl Schm itt, had been until recently, and Hindenburg are the three p eeves in the jpresent essays.T hey are far fro m being forgiven fo r their political weakness and their self-assum ed roles in bringing H itler to pow er. On the other hand, another three people seem to have been instrum entai in his re tu rn to Berlin as full p ro fesso r o f public law, this tim e at Berlin U niversity, only after one term at Cologne; in his appointm ent to the Prussian State Council in July o f the same year, and in his nomination to the new ly founded Akadem ie fü r D eutsches Becht, to the editorial board o f the organ o f the N ational-Sodalist ju rists DAS DEUTSCHE RECHT [German Law], and at the head o f higher education instru cto rs' 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 fro m earlier days; Hans F rank, State Secretary fo r Justice in the Third Reich, who had a sincere admiration fo r Schm itt's intellect and scholarship fro m his years as a law student in Munich, and finally, Hermann Göring, M inister President o f Prussia.
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PREFACE

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 M artin Heidegger, then R ector o f Freiburg University, on the other hand, was m erely episodic, urging Carl Schm itt to join the NSDAP b y sending him a letter in that sense fro m Freiburg on 22 A p ril 1933. On M ay Day 1933, Carl Schm itt took his application to the local N SD AP quarters in Cologne. That gesture had o n ly an administrative value, in fact, as it came after the 7 A pril law fo r the purging o f the d v ii service, and in Germany, u niversity p ro fesso rs were civil servants. Later, in 1937, when he received his card, he fo u n d out that he had become the 2,0 9 8 ,8 6 0 th m em ber o f th e National-Socialist Party. (Goebbels had been m aking fu n o f all those who joined the NSD AP after Hitler had been reconfum ed in pow er in M arch 1933, calling them 'the fallen soldiers o f the m onth o f M arch' [die M ärzgefallene].) In the long run, the connection with Göring p ro v e d the m ost valuable when the period o f transition came to an end, and the w ar-oriented reorganization o f the country became prim arily the task o f the SS. Prank took back the P arty functions which h e had once bestow ed on Schm itt, in order to ingratiate h im self with Himmler, but Göring sto o d his ground and refused to k ic k him out o f the State Council and the U niversity. That did n o t mean that he was also exeinpted fro m surveillance b y the Gestapo fo r the re st o f the regime, or at least n o t until he was drawn into the V olkssturm and sent to defend Berlin against the Russian onslaught. (It was the H om e 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 H itler's last m ass le v y .) Captured b y the Russians, he was released after intensive interrogation: either th ey were satisfied with S ch m itt’s explanation, in the term s o f M elville's s to r y o f BEN ITO 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. N or is it d ea r until n o w w hy in Septem ber 1945, be was arrested b y the Am ericans, had his library confiscated (as potentially incriminating evidence?), and k e p t in custody in various p riso n s fo r the n ex t tw o years. He ke p t those v id ssitudes m o s tly to him self, and considered them enough paym ent fo r having been an adventurer in the
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PREFACE

T hird Reich to turn down the occasion o f eating another hum ble pie, the additional gratuitious humiliation , that was the process o f 'denazification' carried on b y the occupied to placate the occupier.

A ll te x ts w ritten b y people o f independent thinking in the conditions o f any kin d o f censorship likely to im peril their lives need to be read at different levels: the m o st superficial, which corresponds to what publicly the particular author is expected to say, or p u t differently, what the others should be made to think that one thinks: then, what one really thinks, although quite often denying it, o r even ostensibly affirm ing the contrary, and a third level, where the interlocutor, o r the reader, is led to draw the conclusions on his own fro m the contradictions and the inconsistencies le ft in the text, as well as fro m oiTussions o r even erroneous references. Training in logical thinking and thorough knowledge o f the conditions in w hidi the author p roduced the particular work become necessary to g et a correct reading o f the author's mind. That always rem ind m e o f F ra Tommaso Campanella, Galileo's great friend, who w ould o ften write in the m argins o f the poem s h e was com posing in the dungeons o f the Spanish kings and o f the Roman /nguisition: 'who reads, understands'. A s fa r as the main te x t presented here is concerned, its esoterism , so to speak, is unexpectedly thin, revealing a beginner at the game. The su b tlety would grow with time, as it m a y be perceived, fo r instance, in his article o f 1938, entitled 'Neutrality According to International L aw and National T otality,' (BT, 1999). Notwithstanding, and as already said, the continued interest in the present essays g o es beyond their historical m om ent. It is sustained b y Carl S ch m itt's continued interest prim arily in the legal institu-* tioDs o f liberal democracy, and their transform ation in the conditions o f the legal state and o f totalitarianism. Were H itler and H immler n o t precursors o f p resent-day genetics, as the alchemists had been o f m o d e m chem istry? D id n o t Lenin and Stalin want to transform Russia in the m o st industrially developed country o f the world b y emulating their own image o f America, as the present leaders from
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th ey all allow fu h scope to the perfectioning o f dreams XV . The advocates o f animal rights bring their contribution to the devaluation o f hum ankind in the m oral sphere and nullify social institutions. it reduces the human species to a prim ary. and som e o f the contributing factors are quite new: cybernetics and the so-called 'information revolution'. that is persons. fo r Ínstanos. ciass-struggie and what have you. after all is the political end-product o f the perpetual antagonism between technology as a stance and the longing fo r creature co m fo rts in each and everyone. universal statu s o f biological material fo r the achievement o f rationally follow ed and calculated ends. Going hand in hand with the continuous im provem ent o f the arsenal fo r m ass destruc­ tion. the use o f live human cells to activate artifidally made circuits show that the thinking behind them is grounded in this conviction. the suicidal induded. the p ro tective function went out o f the window to be replaced by the endemic social conflict o f individual freedom . To deviate internal crises. A s m onarchies with their paternalism gave way to the nation-state. at the expense o f the governm ent o f people. among which one should count depopulation. A s it eliminates sodai differentiations. fir s t form ulated b y Saint-Sim on.PREFACE K hrushchyov on have been trying so hard? The 'fall o f the Wall' in 1989 did not p u t an end to the trend. talk o f 'lives' that are saved and n o t o f people. known also as so d a i p rogress or social Darwinism. geographic and so d a i m obility and the chronic shortage o f genuine political talent have rendered the p rotective function unfeasabie in the m odern times. Totalitarianism. or one m ay ra th e r call it. welfare measures would be taken as paiiatlves. The developm ents in the spheres o f m olecular biology and genetic engineering. am ounts o f m oney that are m oved round the world. person and personality:m edia co m ­ m entators. F urtherm ore. it also does away with such notions as subject. but no serious attem pt has ever been made to secure the protection o f the subject: individuai rig h ts became an issue fo r the law courts to decide in each p articu lar case. Hence individual ingenuity has become the suprem e moral value o f existence in the age o f technology which does indeed pro m o te the adm inistration o f things. they give it the global dimension o f which Lenin was dreaming. alongside o f the huge. hardly imaginable. Growth o f population. and even Jess reversed it.

o f intellectual occupa­ tions and their subversive value. One m ay say that it will come to pass. in the w orld-w ide conridence game that we are all playing. Machiavellian hints and insinuations about the negativity o f cultural differences. A s concerns the form er. i f not earlier. i f fla ttery m ay be taken fo r an expression o f im potence and inferiority on the part o f the flatterer. this trend is n o t inevitable. the one in operation in the name o f technology risks b y its globalization to render the planet Earth uninhabitable fo r any fo rm o f life. on the o th er hand. Although in full swing. a Secretary o f State XVI . Thus. neo-rom antic flights. Carl Schm itt was expected n o t only to indulge the biases o f his new m asters but also to make a m ore substantial contribution to the cause. he felt the need to stress that it was shared b y a ju rist higher up in the Nazi hierarchy. whatever the technolo­ g ists and the 'virtual reahsts' m ight say in their attem pts to convince the o th ers o f the contrary. loom s large in the very title o f the essay: he chose to use the term 'm ovem ent'. and m ore recently. y e t unlike previous dissolutions o f social structures. and given the new p a rty functions bestow ed on him by F rank. he obliged b y flattery. though leg-puIUng could n o t be excluded in this particular case. Taking into consideration the fact that the fir s t con­ g ress o f the National-Socialist ju rists had only taken place some three m onths earlier (Septem ber 1933). the fact that Carl Schm itt felt the need o f invoking higher authorities to validate some o f his concepts only p o in ts to the precariousness o f his position as theoretician o f the new. The moronic dream o f escaping to a friendlier planet in a space machine m a y only be a consolation fo r the dimwits. His poUtical incor­ rectness. changed poUtical conditions. those o f the other parts o f the world in direct and persistent contact with the W est. On the other hand. all splattered so awkward­ ly that only som eone com pletely devoid o f any sense o f hum our could hold them against him. already m entioned. curt declarations that discouraged doubt and eliminated argu­ m entation. to p ro ve the correctness o f his idea that the law o f 24 March J933 was in fact the provisional constitution of the Reich.PREFACE and aspirations that have torm ented the luminaries o f the W estern world since the 17th century. although he was aware that H itler was against it when referring to the NSDAP.

however. was to help weaken resistances to and win acceptance fo r the new pow er o f command assumed b y a determ ined Hitler. A s a te a d y said. A pparently. structural and ideational. regulations and dedsions XVII . who had printed it in DEUTSCHE JURISTENSZEITUNG. he undertook to attack the weaknesses. In o ther w ords. Carl Schm itt pointed to another fact. anyhow). In the process.PREFACE in the Reich M inistry o f the Interior (p. but on a basis o f its own'. the Y orkists. b y using the word 'provisional' to qualify the outcom e o f the pow er o f command. repeated on page 5: 'the law o f the p rese n t-d a y N ationai-Sodalist State does n o t rest on a basis that is essentially alien and hostile to it. o f the W eim ar Republic (a thing which he had been doing th roughout those years. as weU. as de facto and de jure leader n o t only o f the m ovem ent but o f the country. then at Jena. earlier in ApriJ. the Lancastrians. he came to te stify to the replacement o f an entire Jegal system . m eant that as far as their validity was concerned. however. PEOPLE. the n ew pow er o f command. and sang the praises o f an idealised state o f d v ii servants and soJdiers. the ordinances flow ing fro m it were on a par with the legal system that preceded it and with which it had entered. Perhaps it is n o t too fa r-fetch ed to say that Carl Schm itt carried o u t his jo b in a way n o t unlike Shakespeare. 6n). nam ely that the ordinances. and singing the praises o f those before them. Furtherm ore. that became necessary in order to countervail the criticism leveJled at his notion b y another law professor. legitim ized b y the consent o f an elected assem bly. into com petition w ithout being able to eliminate its basis b y sim ply dedaring it alien. In fact. the ostensive purpose o f STATE. who had helped to consolidate the Tudors by attacking their defeated predecessors. and once m ore on page 8. Hence Schm itt's emphasis on the singularity and unattachm ent to precedent o r tradition o f the new order with which he begins the essay: 'all public law o f the p resen t German State rests on its own g ro u n d ' (p. O tto KoeUreuter. b y the arbitrariness o f regulations issued and commanding obedience in the nam e o f such loose a fiction as ethnic identity b y the will o f a single man whose d ed sio n s were free o f any o f the n o rm s previously in force. which he roiled back in to the 19th century. 3). M OVEM ENT. how ever w obbly and fu ll o f w arts.

alter and even cancel one another. despite the plebiscitary gestures that went with som e o f them . which lend it the needed legitimation. in his n e x t longer w riting o f 1934. The controlled anarchy o f mutual surveillance gave the leader his justiñcation. ÜBBR DIE D REl A R T E N DES RECHTSWISSBNSCHAPLICHEN [On the Three W ays o f Conceiving the Law]. the p seu d o m ystical medievalism and the revolutionary rom antidsm . The main p o in t o f C h ^ te r I o f the essay is that legality m a y become its own legitim ation. that the XVIII . and substantive or 'popular' justice. norm ativist and functionalist in its conception and m ode o f im plementation. the new pow er o f command not o n ly was assured o f the advantages o f an unprecedented ñ exib ility. He did it by reso rtin g to no other authority than that o f Heraclitus (c540-c480 BC). p o sitiv ist and substantive would give way conceptually to the one m an's dedsionism a little later. i f the transfer o f pow er is carried o u t according to the law s in force at the tim e o f the transfer. tradition. on the one hand. and which after all were a fiction. However. characteristic o f periods o f transition. to transfer the intrafamilial m anner o f settling con­ flic ts to the body politic. obstruct. as Max W eber would have said.PREFACE issued fro m the new centre o f command and the authorities under its control and supervision could not create real 'law'. 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 w ere relieved o f their political rig h ts and responsibilities in exchange fo r obedience. the legal n o rm s o f W eimar and the Second Reich. The contrast between form al and empirical. in terfere with. One m ay speak o f a legal revolution in two senses: one. he would lim it him self to the binary opposition between the administrative legality. on the other. at the end o f 1933. B y n o t feeling bound to any fixed fo rm s. though. the pre-Socratic G reek thinker who in one o f his fragm ents (110) had been saying that obedience to the will o f one man was also law. alongside the ordinances issued b y the new rule still kept vying with each other. In the p resen t essay. It to o k Carl Schm itt several m onths m o re to be able to produce the legal fíction that the will o f one man is Jaw. but also was able. perpetuating the atm osphere o f unpredictability and undermining resistances.

PREFACE

transfer has been carried o u t in conform ity with the Jaws in force at the time, and the other, that the previo u s 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 im portant to rem em ber, because it differs fro m the legitim acy o f a new order that em erges fro m the outcom e o f a d v ii war, as it happened in Russia after the collapse o f the tzarist order, and som e tw en ty years iater, in Spain, and a fter another decade, in China. W hatever the unintend­ ed consequences fo r the population at large, both in Russia and in China, the latter rem ains the source o f légitim ation fo r all the regim es that follow ed, induding the present, even i f as in Russia, one has been fíyin g the tzarist com m erdal flag, and playing one o f Glinka's operatic h ym n s as a provisional national anthem fo r a while. Chapter II o f Carl Sch m itt's essay sketches the outline o f the n ew system , that is, the w orkings o f th e n ew pow er o f command which sh ifts the centre o f political po w er fro m the s ta t^ s o d e ty intercourse to the m ovem ent that has em erged through the fissu re between the two, and so fro m outside the traditional sphere o f pow er. I t is a dynam ic m odel 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 adm inistrative machine or the arm y), subjects both to its interests, disenfrancbizing the people (i.e. the d v il so d e ty ), and turning both the state bureaucracy and the arm y in to its willing tools. The m o vem en t dominates and penetrates both, and draw s its cadres fro m the ranks o f the people. F o r the sake o f m an­ ageability, it reserves fo r itse lf the m onopoly o f political pow er: it is up to the leader to decide what is political and what is n o t (in the sam e way as it is h e 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 s o d e ty as a precondition fo r the ascent o f a m o vem en t to the p o w er o f com mand. A lthough ffitJer borrow ed a Jot fro m the institutions o f the one-party S o viet system (as a m atter o f fact, the influence and the borrow ings have been m utual), once in pow er, h e avoided the S o viet internationalism and its universalization o f the political, that is. seeing everything e x d u siv ely in term s o f frien d and enem y. Such a stance would have ill
XIX

PREFACE

accommodated his biological doctrine o f racial identity and his p o licy o f coordination. Chapter III is ostensibly meant to underline the sup erio rity o f the triadic m odel over the binary one, that o f the W eim ar 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 m onarchy. In fact, it dem onstrates the vulnerability o f liberal dem ocracy when im posed upon the unstable condi­ tions o f a different era. The legal state is what re su lts when the fo rm er society tries to create the security and the predictability that w ere n o t its strongest points even at the b est o f tim es. Victim o f its own prejudices, the 2 0 th -ce n tu ry hberal democracy, which wanted to be everything to everyb o d y, n o t only was unable to provide protection and secu rity fo r all and su n d ry but has become the breeding field fo r fo rces and interest groups intent only on carrying o f f the p rize in juridically unassailable conditions. The very loose fabric, ridden with inconsistencies, ambiguities, confusions and om issions, d v ic irresponsibility, and a tolerance verging on helplessness, not only p u ts up a p oor defence but invites its ransack b y forces previously excluded. In such conditions, judges, and one may add, sd e n tists, as irresponsible as the politicians that hide behind them, are hardly the rescu ers o f the society. The leadership p rin d p le as the cornerstone o f political u n ity o f a co u ntry was n o t a new idea, and n o t in the least H itler's. I t had em erged in German political thinking time and again w henever conflicts o f interest and p a rty factionalism paralysed the ability o f taking aU-embradng d ed sio n s and follow ing them through. It derived fr o m the p o w er p rin d p le o f the hereditary charismatic monarch. In the last years o f W W I, i t fo u n d its m o st vocal theoretidan in M ax W eber who p u t fo rth the notion o f a plebiscitary president with his own cabinet, as a unitary solution against the m any-headed dom ination system o f the federation o f states that at the end o f W W I had emerged quite un­ scathed fro m the collapse o f the empire. Carl Schm itt's own idea o f political leadership, m entioned earlier in the Preface, is a reform ulation o f W eber's concept that takes into consideration the changes that had occurred in G erm any's poUtical landscape in the interval. Nonetheless, when faced

X X

PREFACE

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 tim e to I distinguish it fro m 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 pow er 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 a rm y and o f the d v ii service. It did away ] with election altogether, replacing it by the principle o f : selection and o f the ultim ate responsibility o f the leader at ; the apex, surrounded b y a d r d e o f cronies, his paladins, ; whom he co -o p ted and dism issed at pleasure. The Council ■ o f the Leader, inform ally know n as the inner cirde, had still an o th er function, n o t m entioned b y 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 m em bers and deferring to his dedsions and otherw ise dining to his every w ord. For Hitler, the perfect confidence trickster, the recurrent validation o f his leadershw h y his willing subordinates was a vital necessity, even in the conditions o f the p o sitiv ist state machine which the German Reich grew into during the war. The political leadership which Carl SchmiCt had in m in d was in fa ct replaced b y the sim plified bureaucratic notion o f the authority to issue orders, and which in turn p resupposed regim entation. Its accessibility was le ft open: everyb o d y m ight become a leader. W'hich rem inds one o f the Napoleonic dictum that every soldier carried a field m arshal's baton in his knapsack. N o t to repeat what he had already said in Chapter I and to avoid running the gauntlet b y a frank opinion o f H itler'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 adm inistrative state, where control, com m issions 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 H itler'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 sam e chapter, and read Plato's dialogue THE STA TE SM A N , particularly the
XXI

fed as it was b y his chronic inferiority com plexes. THE MODERN REGIME (E T 1890-1894). and personally. the instinct and the affect. Carl Schm itt's irony that rests in the stress which he lays on Napoleon's nationality is likely to be lo st on the presen t-d a y English speaking readers. the demise o f pariiamentarianism and the reappearance o f what M ax Weber named the ja c k -in -th e -b o x -lik e career politidans w ithout a calling who were striving fo r immediate advantages fo r them selves and their supporters. Napoleon was sa 3ong that while a student at a m ilitary college in France. towards the bio­ logical. and make the m o st o f the low est com mon denominators. 'race' had not yet been established as a legal concept. only inherited and inheritable biochemical traits should be made to count. all these pointed into the opposite direction. with reference to H itler's and Frank's XXII . and Taine's analysis o f Napoleon's rule. security and ju st deserts. Both kinds o f leader bode ill fo r those who happen to be ruled b y them. which represents the first volume o f his study. While Carl Schm itt had been seeking a unifying p rin d p le in the sphere o f ideas and religious beliefs at a time when the very notion o f natural law had been dis­ credited. with all expenses paid b y the French state. consistently prone to shipw reck the vessel en tru sted to him. A t the tim e when the essay was written. as much as Napoleon. Carl Schm itt was seem ingly reluctant to add it to the inventory in circulation. had in his turn been anti-French: ' I shall do to the French all the harm that I shall be capable o f . unaware as th ey are that in Germany people never fo rg o t that H itler was an Austrian (and jokes on that theme were circulating widely). He only used the word 'race' twice in the whole text: once. entitled THE OiUGiNS OF CONTEMPORAPy FRANCE. wUllng to sweep away moral and legal obstades that m ight have cast a shadow ov er illusions o f recognition. in the name o f racial identity. culture and wealth. It was H itler's m e rit to grasp it. with an inbuilt hostility n o t only to the Jew s but also to the (Jermans themselves. the ever-p resen t fear o f being sucked b y the m aelstrom o f B olshevik Soviet rule. Out with such distinctions as class.PREFACE characterization o f the steerman. the Italian adventurer and fu tu re Em peror o f the French. which its e lf is the third and last part o f his ample w ork in six volumes.

Schm itt seem ed anxious to point out that it was the only guarantee against arbitrariness and tyrannical conduct in the leader. 51). now haughtily critical. in his own quasi-lyrical encom yum .48). as it allowed free rein to arbitrariness and cruelty in decision-m aking. to the deepest and m o st instinctive stirrings o f his em otions. with only lim iting consequences as regards the belief in a com mon ethnicity. On the other band. and a second time. I t was used as a su b stitu te fo r the M arxist d a ss-co n flict and p rovided 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: It is Carl Schm itt’s conclusion that 'without the principle o f ethnic identity.. letting the reader to draw his own conclusions: one m ay easily infer fro m 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. which after all. Carl Schm itt could n o t help giving a sh o rt practical lesson about the new meaning o f ethnic identity. whether in m atters o f culture and tradition. It is equated in the essay with a sense o f belongingness 'to the law-creating com m unity o f kith and kin ' (p. A t the same time. and likewise. man stands in the reality o f this belongingness o f people and race' (p. Carl Schm itt. Which is what happened after W W II. . the German NationalSocialist state cannot e x i s t .PREFACE speeches at the Nazi ju rists' congress. he. as well as in the judge! (The string o f events that m arked that year since H itler's appointm ent as Chancellor on 3 0 January had already show n its unreliability. n o t conducive to group-form ation. when the W estern sectors o f Germany were returned to the XXIII .) N onetheless. he had n o t the same reticence with regard to 'ethnic identity'. which in the Nazi propaganda had become but a fiction. inside. it would be im m ediately handed over to its liberal or M arxist enemies. It could be used only to ju stify the expulsion o f the undesirable under the p retex t o f their being different fro m the com m unity and its various walks. Beyond that. Again. is a close definition o f the emotional state o f hom o hitlericus:' Down. and fo r that reason. m eant to stand fo r the opposite o f the B olsheviks' internationaiism. with all its in stitu ­ tions. 51). custom or expression. now obsequiousiy assimilationist' (p. was n o t p re ­ pared to go. in the tiniest fibre o f his brain.

the notes m arked b y asterisks are the author's while the numbered are the English editor's. Thus. and lend an air as it were o f global legitimacy to what is only a chronic p o v e rty o f ideas and lack o f imagination that neither side seem s able or willing to overcom e. that often turns into an inept game o f cops and robbers. Carl Schm itt's diagnostic is also confirm ed b y the new German com m unist p a rty 's reorganization after the reunification as the Party o f Democratic Socialism. to take an example. m oreover. The inconsistencies in capitalization reflect a lack o f editorial consensus which m ight be reached b y the time o f a second printing. when and i f asked to do so. Needless to say that w ithout the help o f the L ibrary o f Congress s ta ff this book would have never been completed. m y stify and induce resigna­ tion. the m ere word 'democracy' is nowadays used in disaim inately as the great 'parole o f legitim ation' o f any dubious undertaking at local. Terms are em ptied o f any ideational content and are cultivated m erely fo r their pure emotional value to disorient. It is an inabihty which they refuse to adm it even to themselves. in which the roles are interchangeable. In this intercourse. or the opposite. the vocabulary used and som e o f the principles quoted have been borrowed fro m the fir s t few decades o f the last century but only in order to disguise old habits and propensities. almost as a m atter o f course. national o r international levels.PREFACE W eiwar system . and which is a grow ing source o f m utual contem pt and hostility. In the texts that follow. and social and economic destabilization is the only noticeable result. while the Eastern zone reverted to Soviet socialism. the index covers only Carl Schm itt's texts. The m ore recent attem pts to link the award o f inter­ national loans and g ra n ts to various countries with the im position 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 p rese n t-d a y world and o ffer adequate suggestions fo r pohtical problem s in need o f solution. SIM ONA DRAGHICI EDITOR'S NOTE. XXIV .

BIBLIOGRAPHICAL NOTE Whoever is interested in the question o f legitim acy m ay access the subject catalogue o f the Library o f Congress: the jnum ber o f titles on the m atter that has been published the world over in the last three decades is im pressive. George Schwab and E rna Hilfstein. 72 (Sum m er 1987). ed. THE IDEA OF REPRESENTATION (1923). in 1988. in TELOS No. tr. ed. ¡however. G . THE CRISIS OF PARLIAMENTARY DEMOCRACY (1923). MIT. Here. Ulmen. 1988. relevant to the problem s under discussion but which are n o t y e t available in English translation. W ashington DC. Plutarch Press. M essrs D uncker à H um blot o f Berlin reprinted the 1940 edition o f POSITIONEN UND BEGRIFFE IM KAMPF MIT WEIMAR-GENF-VERSAILLES 1923-1939. tr . Duncker & Hum blot. MIT.M . Berlin. 2nd ed. thus making available an im portant collection o f Schm itt's articles ón the period. tr. 1999. 1985.. S. FOUR ARTICLES (1931-1938). John P. 1969. W esport C onn. M oreover. S. and LEGALITÄT UND LEGITIMITÄT (1932). pp. pp.. in TELOS No. T hey are Usted in chronological order: POLITICAL ROMANTICISM (1919). I shall lim it m y s e lf to quoting those te x ts b y Carl iSchmitt that cast additional light on the problem s raised here and are available in Engiish translation. Greenwood P ress.D raghici. tr. Berlin. 1968. T he Age o f Neutralization and D epoiitidzation' (1931). McCormick. 1996. and so expanding the perspective opened b y the XXV . 73-89... tr. D rag h id . Cambridge M ass.L . Codd. 96 (Sum m er 1993). trs. 1986.. There are m ore w o rks b y Carl Schm itt. T he Legal W orld Revolution' (1978). W ashington DC. among them DER HÜTER DER VERFASSUNG (1931). Plutarch Press. 130-142. Guy Oakes. E. and tr. 2nd ed. Cambridge M ass. Duncker & Hum blot. Ellen Kennedy. THE LEVIATHAN IN THE STATE THEORY OF THOMAS HOBBES: MEANING AND FAILURE OF A PO LJTICAL SYMBOL (1938).

with several reprints. 1983. 2nd ed. of Chicago Press. Besides.. XXVI . tr. Steinberg. W esport Conn. 1984. the tw o American monographs: CARL SCHMITT: THEORIST FOR THE REICH by Joseph W. of Cali­ fornia. Princeton U. Berlin. Press. namely VERFASSUNGSRECHTLICHE AUFSÄTZE AUS DEN JAHREN 1924-1954. Duncker & Humblot. Michael S. Chicago. one m ay consult: MAX WEBER AND GERMAN POLITICS by Wolfgang J. Univ. Bendersky. they both contain useful bibliographies. 1958. Peter Paret. 1977. ed. Mommsen. 1989 m ay help one fin d one's way through the intricacies o f German pohtics before and during H itler's com ing to pow er. F or a sJighJy earlier period.. Greenwood P ress.B I B L I O G R A P H I C A L NOTE Other collection o f his shorter writings and from which 'The Question o f L egality' has been translated here. and THE CHALLENGE OF THE EXCEPTION: AN INTRODUCTION TO THE POLITICAL IDEAS OF CARL SCHMITT BETWEEN 1921 AND 1936 by George Schwab. Besides. Berkeley. while the age o f Prussia's m o d em reform ers m a y be gleaned with painless p ro fit fro m THE AGE OF GERMAN LIBERATION. Princeton. 1795-1815 by Friedrich Meinecke. and tr. Univ.

PEOPLE THE TRIADIC STRUCTURE OF THE PO U TIC AL U N IT Y (1933) . M O V E M E N T .STATE.

.

by its contents. All the principles and regulations that w ere essential to that consti­ tution b oth from the ideological and the organizational standpoints are set aside along w ith all their prem ises. the W eimar C onstitution cannot be the foundation of a National -Socialist State. to be talked of shortly. Their continuous v a ii^ ty re sts on an assum ption in p a rt explicit (as for instance. 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. Likewise. p. by its legal constitutional force. a ^ c r e e issued by the Reich P resident on 22 M arch 1933 had solemnly abolished and rem oved their sp irit and their foim dation together w ith the b lack -red -g o ld flag o f the W eimar system (Article 3 of the W eim ar C onstitution*). of the provisional constitution . Either substantially.THE PRESENT CONSTITUTIONAL SITUATION 1. one could n o t w ait fo r the em pow erm ent 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 Germ an people. 479)* and the law of 13 O ctober 1933 to ensure legal peace (RGBi. p. they do not serve as the groundw ork and consti­ tutional legitimation of the p resen t State.* the enemy o f the State and o f the people. with reg ard to the conditional stipulations. or form ally. in o rder to abolish the Com m unist P arty. Even before the so-called em pow erm ent law o f 24 M arch 1933. Some individual provisions of the W eimar C onstitution are still in force.the s o called law of em pow erm ent’ of 24 M arch 1933). 723)* eradicate the Weimar C onstitution both ideologically and as fa r as its organizational consequences . However. The W eimar C onstitution is no longer in force. and partly implicit in the new public law. yet no m ore than the large mass of p re-revolutionary regulations. All public law of the p resen t Germ an State re sts on its own ground. I. and so only to the extent they do n o t contradict the new juridical conditions.

any political freedom of propaganda. leading to suicidal neutrality. Several ju rists. and even less. the provisions of the W eim ar C onstitution are wanting. who obviously cannot g et used to the reality of the National-'Socialist State. This is a concession which internally is .STATE. MOVEMENT. The conditional stipulations of the provisional constitution of 24 March 1933 (rights of the Reich President. which belongs to the p resen t-d ay State. The new w orld of the NationalSocialist law cannot be understood in any other way. every attem pt to justify o r to refu te the p resen t legal situation on the basis of the Weimar C onstitution is fo r that very reason a senseless game. deviations which should be m easured exclusively against the so-called 'law of em powerm ent'. an expression of the political effo rt to realign the public law in force now and the auctoritas rei constitutae*. w ith the o rd e r of the ideas of the form er law. as 'admissible'. as well as the law of 14 July on the plebiscite‘ s. of action. The provisional constitu­ tion of 24 M arch 1933 (the so-called law o f empowerment). find justification or a basis in the concepts and the fo rm s of the Weimar system . and in addition. either to paralyse it o r at least to tre a t it as relative. W ith the help of this law. or else. of the Reichstag* and the R eichsrat*. F rom the point of view of the N ational-Socialist State. That constitution is no longer identical with itself when the whole ideal. and even o f ideological efforts hostile to the State. as institutions) have n o t the edge over the law of 14 July 1933 on the plebiscite. of conscience. oth er laws may take effect that would go beyond the conditional stipulations of the provisional constitution of 24 M arch 1933. of opinion. when fo r instance. Even from the point of view of the so-called form al au th o rity o f constitutional law. eith er in generous term s. and in th at way. PEOPLE are concerned. there are no longer any indiscrim inate party form ations. o r critically. have tried to present the new basic laws of this State as deviations from the W eimar C onstitution. liberal-dem ocratic world has collapsed. as 'inadm issible'. when there is no longer any equalization or ra th e r the absence of discrim ination between the enemy of the State and the friend of the State. surpasses the fram ew ork of every regulation conceivable in term s of the W eim ar C onstitution. between the comrade of the people and the alien.

interim m easure against the background of the earlier constitution. MOVEMENT. The text of the W eimar C onstitu­ tion cannot be treated as continuously valid in the conditions o f the new public and constitutional law of the National-Socialist State. But w hat then is the meaning of the Reich law of 24 M arch 1933 that changed the constitution. and that a simple bill passed by the Reichstag m ight again abolish the new constitutional legisla­ tion entirely. is valid. a p le b isd te ’ * by which the G erm an people has acknowledged Adolf Hitler. made m anifest through the parliam entary elections of 5 M arch 1933.N e u b e r t. the * S«*. fo r in sta n c e . as the political leader o f the Germ an people. B e rlin .new in its contents. F ro m 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 ­ p orary. PEOPLE j ! impossible. a n d S ch eu n er in L eip zig er Z e ite e b r ift. . M e d icu e' re m a rk s on th e R eich law of 2 3 M arch 1933 in D eu tsch es R ech t [G erm an Ju ris p ru d e n c e ] b y P fu n d tn e r. N evertheless. y et was passed ¡with the required m ajority of two thirds of votes. 1 9 3 3 . but on a basis of its own. A u g u st 1 9 3 3 . the leader of the N ationalSocialist M ovement. and that the contents o f the IWeimar C onstitution is still in force? 1 m ention this m anner Iof looking at things only in o rder 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 p re sen t-d ay N ationai-Sodalist State does n o t re st on a basis th at is essentially alien and hostile to it. adm ittedly . 903. The local elections of 12 M arch confirm ed once m ore the same will of the people. p. the elections were in fact a popular re fe r­ endum. unsustainable. in ac­ cordance w ith the dispositions of A rtid e 76 of the Weimar C o n stitution’ ’ ? This so-called law of em pow erm ent was passed by the Reichstag solely as the enactm ent o f the will of the people.* How can one distinguish the 'pure text* of a constitution fro m its contents and its form al validity. W hen looked a t w iüi the criteria of jurisprudence. The Reichstag and the Reichsrat would act fro m then on exdusively as the executive bodies of the people’s will.STATE. and how is it possible to say with juridical logic th at a constitutional law. and re tu rn to the Weimar C onstitution.

STATE. P fu n d tn e r. a t th e C onference of th e G erm an Society for th e Prom otion of P olitical S ciencee. it is n o t w ithout m erit that a system surrenders on its own. ad o p ted th e aam e e ta n d p o in t. the m ore so. and affixes its seal on its own end. Besides. As it will be recalled fu rth er on. The phrase 'law of em pow erm ent' fu rth e r re ­ inforces the propensity for this e rro r. legality is one o f the ways by which the Civil Service and the adm inistrative m achinery of the State function. O r. but only th at the law rep resen ts a bridge fro m the old to the new State. and for that reason it was im portant both politically and juridically. Because of that. If this is co rrec t under the aspect of a law transform ing the constitution in conform ity with Article 76 o f the Weimar C onstitution. in conform ity w ith its own legality. Practically. that m ight bind the p re sen t-d ay State. that does n o t mean that one may still now­ adays consider the W eimar C onstitution as the foundation of the p resen t-d ay State structure. PEOPLE m ental habits of the so-called positivist ju rists give them gro u n d s to fmd in this law the juridical foundation of today's State. a n d d e s c rib e d th e law a s a 'p ro v isio n a l c o n s titu tio n ' (le c tu re d e liv e re d at th e A d m in is­ tr a tiv e A cadem y of B e rlin . as it does not appear either in the title of the law (Law fo r Removing the D istress of People and Reich) o r in its text: it has only been attached to the law fro m the outside. 1933). this 'em pow erm ent law' is a provisional constitutional law o f the new G erm any* The provisional constitution of 24 M arch 1933 has all th e characteristic features of a transitional m easure. fro m the old base to the new base. MOVEMENT. I t h a s assu m e d a special sig n ific a n c e for th a t m a tte r w h e n th e R eich S tate S e c re ta ry fo r the I n te rio r . fo r th e f i r s t tim e. As a m atter of fact. B e rlin . Neither the base. It eeem e th a t in th e m eantim e i t hae cau g h t on. it is necessary to recognize that the expression 'law of em power­ m ent' is a juridically imprecise albeit erroneous description. B ut that is only the abdication and the death statem ent of the old law. a t W eim ar). F asc icle 1 of th e P ublic A d m in istra tio n in th e New R eich . nor the boundary o r any essential in ter­ pretative opinion. it is of great im portance that this transition should take place legally. and n o t the substantial definition of the new. * I p re» en t« d th i s i n ta r p r e u tio n im m ed iately a f te r th e p u b lic a tio n of th e law (on 31 M arch 1 9 3 3 . . It would be better to avoid the expression altogether. o n 4 Ju ly 1933.

A t the 1933 P arty C ongress in N urem berg. W hat is alive cannot be legitim ated by m eans of what is dead. The soim d law o f the Germ an revolu­ tion does n o t re s t on the fact that. The law of the p re sen tday Germ an State does n o t hang on the conditions. It would be absurd both politically and morally. It would be juridically false and politically an act of sabotage to derive from that icind of legality a continuous validity of superseded juridical ideas. Rudolf Hess. as well as juridically. institutions o r norm s. thro u g h their consent. F or the Jaw in force nowadays. th a t legalization is in its juridical and political mean­ ing w hat the legalistic m entality of a legi^ative liberaldem ocratic State is fo r the principle of lo y ^ ty in a State of monarchical servants. a p e r­ manent subm ission to the letter and the spirit of the Weimar C onstitution. And when the L eader's deputy u tte rs the following sentence: 'AH the pow er comes from the people. and together w ith it. and th at hits the nail on its head. seize pow er again fo r a system th a t has become im potent. several dozens of deputies w ere willing by their fifteen per cent to make up the difference which exists between the simple and the tw o -th ird s m ajority.' this is essentially different fro m w hat was m eant by the liberal-dem ocratic Weimar C onstitution when . form ally correct in keeping w ith the fo rm er constitution. its legality is meaningful only in term s of the legality o f the form er W eimar C onstitution. o u r Leader's deputy. and force has no need to legitimize itself by means of pow erlessness. But the notion of 'parlia­ m ent' is n o t m eant in the sense given to th at institution by the W eimar C onstitution. On this point. o r ju st the m ental reservations im der which that group has given its consent. ’ ® The German revolution was legal. PEOPLE can be deduced from the old era which has resigned. that em powerm ent be here granted by pow erlessncss. In re s t. MOVEMENT. th at is of a system th at has been superseded. lim ita­ tions. th at is to say. and in that way. ilia t happened thanks to discipline and the Germ an sense of o rd er. has said that the P arty C ongress [Parteitag] is a 'parliam ent' [Reichstag] o f the Third Reich. the 'em pow erm ent' of 24 M arch 1933 is nothing but a kind of republican analogy to the explicit release from the oath of loyalty u ttered by a m onarch when renouncing the throne o r abdicating.STATE.

th e p a r tie s . the Reichsrat. a) The following are to be counted as supreme offic o f the Reich: the Reich President. th e lew of 17 D ecem b er 1 9 3 2 . The prim ary im portance of the * T he Bconom ic C ouncil of th e R eich [R e ic h e w irtsc h e fte ra t]. T h erefo rs. w h ic h is fo u n d ed on th e le a d e r p r in c ip le [P u e h re r p r tn z ip ]. the Reich Chancellor. is a s little v a lid as th e o th er c o n s titu tio n a l p ro v ia io n e of th e W e im a r sy stem th a t no longer co rre sp o n d to th e p r e s e n t law . W e re a sp e c ia l re p e a l of th is law c o n s id e re d n e c e s e a r y . in ev ery case of im p e d im e n t. fig h tin g am ong th em eelv ea.* * AH our public law. an d at th a m o st. as well as m ore possibilities of legislation. The basic features of the new State stru c tu re will be dealt with fu rth e r on (in Chapter II). induding all the provisions taken over from the W eimar C onstitution and subsequently valid. for psychological re a so n s in o u r p e rio d of tr a n s itio n . the Reich Governm ent. h ad no u n ita ry p o litic a l w ill. ae w ell ae th e office of th e re p re e e n ta tiv e of th e R eich P re a id e n t. I.STATE. The valid regulatory prin d p le fo r the dassification of the suprem e offices of the Reich is th at the Reich Chancellor is the political leader of the Germ an people. rests on an entirely new foundation. ev en w ith o u t its e x p re ss e d ab o litio n . Ae i t is k n o w n . 2. politically united in the German Reich. co u ld all converge o n ly u p o n a p o litic a l zero p o in t. 16 5 ). w h ic h p e rh a p s w ould n ot be e x c e s siv e . he m u s t b e r s p rs e e n ta d n ot b y th e R eich C hancellor b u t b y th e P re s id e n t of th e S u p rem e C o u rt of th e R eich . In th e N atio n al-S o cialist S tate. I. em erging from such m o tiv ss. Ita ta n a e a n d aim lie in th e fact th a t in such a p lu r a lis tic sy e tem . i t is h o w e v e r n ot in d ie p e n e a b le e ith e r c o n s titu ­ tio n a lly o r ju rid ic a lly . The constitutional provisions valid today stipula fo r a coexistence of m ore suprem e offices of the Reich. a reg u latio n lik e th a t. m ay b e e e t asid e. is a b s u r d .* ■ . PEOPLE it used the same w ords in its Article 1. against all the false juridical construc­ tions which would lead the N ationai-Sodalist State back into the tracks and the ways of the old and superseded thinking about the State. p . acco rd in g to th e law of 17 D ecem ber 193 2 on th e re p re a e n ta tio n of th e R eich P re a id e n t (RGBI. ’ ® the Reichstag. th is m ea su re w a s tak en a t a p a r tic u la rly gloom y tim e for th e m u lti-p a r ty S tate of W eim ar. Aa re g a rd s th e re p re s e n ta tio n of th e R eich P re s id e n t. Here one m ust only make d e a r the own law of our new State fro m the beginning. 5 4 7 ). ev en th e s h o rte s t. on th e p a r t o f th e R eich P re s id e n t. p .* The question of the m utual relation of the many Reich offices cannot be resolved by means of the Weimar Constitution. th e Econom­ ic C o u n cil of th e R eich i t a tra n a itio n a l body w ith an u n c le a r p u r p o r t aa long aa ita lot haa n ot b een d e c id e d th ro u g h th e e la b o ra tio n of a to cial c o n a titu tio n of profeaaional o rg an izatio n s. N o tw ith e ta n d in g th e law o t 5 A p ril 1 9 3 3 (ROBi. MOVEMENT. in m y o p in io n .

th at the Reich Chancellor Adolf Hitler holds a position in conform ity with the State law.® ® and the plebiscite in virtue of A rtid e 73®®) are still equally valid. paragraph 2.’ ' The office has in a way resum ed the 'constitutional* position of the head of an authoritarian State.’® b) Besides the coexistence of the said offices. according to A rtid e 48. and function as stand-in for a political lead ersh ip . PEOPLE political leadership is a fundamental principle of the p re sen tday public Jaw. not comparable to the position of any of the preceding chancellors. As a consequence of the application of this fundam ental law.’ * Nowadays.®^ is still effective.STATE. the question rem ains of their hierarchical o rd e r and their m utual relationship. the rig h t of the Reich President to issue decrees with the force of Reich laws.® ’ M oreover. and to be exercised in particular cases. qui règne e t ne g o u ­ verne p a s . in which the Reich Presi­ dent was constrained to abandon the specificity of his high office. The political 'leadership* exercised by Adolf H itler is som ething more than and different fro m a 'simple determ ination of d irect­ ives. H ere. The rig h ts of the Reich P resident are guaranteed. the liberal constitutional separation o f the executive from the legislative is cancelled. it is self-understood not only de facto but also de jure. too. The legislative possibilities recovered fro m the Weimar C onstitution (such as the voting by the Reichstag in virtue of A rtid e 68. the question cannot be solved through form alist and sophistical interpretations of the w ords of the W eim ar C onstitution. But gone is the abnorm al situation of the last few years of the W eimar system . Finally. MOVEMENT. In the face of this variety of legislative possibilities. either in relation to the Reich P resident or to the other members of the Reich governm ent. ®° The normal way of today's legislation is that of the decree of the Reich Governm ent (A rtid e 1 of the provisional constitution of 24 March 1933).' according to A rtid e 56 o f the Weimar C o n stitu tio n . and the governm ent assum es a . The public law of the N ational-Sodalist State m ust ra th e r enhance the awareness of the fact that the absolute p rio rity of the political leadership is a positively effective basic law of today’s State. the Reich G overnm ent has the possibility to question the people by way of the ballot. that is. precisely about laws and regulations (the law of 14 July 1933). there is the coexistence of varied JegisJative possibilities.

legislative rig h t (which. the popu­ lar law no longer corresponds to the facts and becomes meanmgless.STATE. p . It is another m atter altogether. form al. if in a completely changed situation. and which of the means available in th at case new popular consultation. the so-called elections had long lost their tru e elective character. considers it binding. is ex p ressedly acknowledged in A rticle 1 of the provisional constitu­ tion of 24 March 1933). an option that split the German 10 . and make itself heard. Even the referendum . * ® On the other hand. it is up to the political leadership to decide the form in which a new and necessary m easure is to be taken. to the Reich legislation in such an event. The Reich G overnm ent acknowledges the authority of the people's will which it has called upon. by means of a new G overnm ent law. in the W eimar system . and as a consequence. perhaps. and there to present a so-called bill o f initiative. which by a decree o f the Reich P resident of 14 October 1933 (R H B l I. a Reichstag resolution. and the popular legislative procedure o f the W eimar C onstitution give way to the new rig h t o f the Reich Governm ent to popular consultation. and through it. Previously. PEOPLE tru e. by the way.may be used to that end. they had become a plebiscitary option of the m asses o f v o ters between five o r six incompatible program m es and ideologies. are m eant only as an integral p a rt 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 governm ent. An appeal of the Leader to the Reichstag is still of consequence. MOVEMENT. based on popular consultation.729) were set fo r 12 November 1933. * ’ The new elections fo r the Reichstag. 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 th ird of the m em bers. in conform ity with A rticle 24*®). The subsequent question of the relation between a law o f the Reich G overnm ent and a law b ro u g h t fo rth by popular consultation may equally be answ ered on the grounds of accepted National-Socialist principles. a Governm ent law . In th a t case. in addition to all this. every legislative initiative is in principle a m atter fo r the govern­ m ent. the reorganization of the Reichs­ tag. As it has been repeatedly rem arked. In no way does it assume the rig h t sim ply to abolish a law of the Reich.

b u t also in the essen tid stru ctu ral and organizational lines of the concrete ediflce of the State. have distinctly different contacts and direct links with each other. Three fo r­ m ations move side by side. Each has moulded itself from a variety of viewpoints and. penetrates and leads the other two. People. It is radically different from the liberal-dem ocratic State schema th at has come to u s fro m the nineteenth century. of different m aterials. even if in various ways. The three series do n o t ru n parallel one to the other. effected by the carrying series. m eet in certain decisive points. MOVEMENT. II THE TRIADIC STRUCTURE OF THE POLITICAL UNITY 1. and n o t only with respect to its ideological presuppositions and its general principles. b u t all. PEOPLE people into as many incom patible parties.STATE. and thereby. M ovement. if I may say so. and as a whole. particularly at the apex. all shape the constitution of the political unity. which however are not allowed to cancel the distinctions. Bach one of the three w ords: State. in their own order. all the regulation of its public life appear to be ordered into three distinct series.®* The danger of such a pluralistic division of Germany into several totalitarian parties has been quelled in the o n e-p arty State of the National-Socialist G erm any. the M ovem ent. the election has become a response of the people to the appeal launched by the political leadership. M ovem ent and People. The new State stru c tu re is m arked by the fact th at the political unity of the people. That character of appeal o f the reorganized Reichstag and its connection with the plebiscite became evident on 12 Novem ber. are sw ept along by the public legal order. may be used alone to denote the whole of the li . Thus. E very essential concept and every im portant institution is affected by this difference. which carries the State and the People. b u t one of them. The political unity of the present-day State is a th ree-part summation o f State.

the State may be regarded strictly as the politically static part. the People against the Movement. because it requires a specially s tric t organiza­ tion and a firm leadership. it indicates yet an o th er particuiar aspect and a specific elem ent o f this whole. This would correspond to the liberal splitting. This also corresponds to the wording of the law of 14 July 1933 (RGBJ. The sociologists have nam ed it ’o rd er'. and the People. b u t relies on ■free recruitm ent'). o r the M ovem ent against the People. as already said. Hence the following three series: a) The State apparatus and the Q vil Service.STATE. b u t it is an organization of command. in its traditional meaning of the whole political unity o f a people. A P arty in whose political body the M ovement finds its specific form . the Movement. But it would be false to make sophistically out of them alternating and mutually exclusive opposites. because nowadays a m isunderstanding is little to be feared. The M ovem ent. the relativization of the political whole. as the dynamic p o lit­ ical element. and justice in the narrow est sense only. b) A Party carrying State and People. but self-contained and led hierarchically. At the same time. 'elite* o r something like th at. in particular. and neither the p resen t-day State (in the sense o f political unity) n o r the Germ an people of today (the subject o f the political entity which is the ’German Reich') would be imaginable w ithout the Movement. MOVEMENT. 479) against the ré­ constitution of the parties: 'The National Socialist W orkers' 12 . of which m ore will be said later on. the term 'State' will be always used. Still. one may keep holding on to the usual name of 'p a rty '. I. and recruited fro m aU the strata o f the People. growing u n d er the protection and in the shade of the political decisions. adminis­ tratio n . as the apolitical side. PEOPLE political unity. in order to differentiate it from the political party o f the liberal State (which in principle is n o t tightly organized. In this way. however. consisting of the arm y and the civil servants. This is still often de­ scribed (in keeping with a traditional way of speaking) as the State. o r the Movement against the State. whereas in its bro ad est sense. and play o ff the State against the Movement. the People against the State. p. o r at least. and the political sense of which is the abolition. or the State against the People. is as much the State as it is the People.

Party and T rade-U nions as a total encom passing of the poUtical and social reaUties. it was ousted from the consciousness of the Germ an people under the influence o f liberal and alien theoreticians and w riters. left to auto-adm inistration. This new triadic image o f the whole poUtical unity is recognizable in the State of the Germ an N ational-SodaU st M ovem ent. p u bßc and legal auto-adm inistration and introduce an autonom y that m ight be possible within the general fram e of !the poUtical leadership. in the poUtical life o f the People. a corporatism o r a union of various kinds of association. Oiûy in the second half of the nineteenth century. In no way is it affected by the objection that it deals only with the idealization of the ItaUan F ascist situation. initiated by Hegel. which rejects the principle o f an autonom ous territorial adm inistration and tolerates only types of technical or 'functional* autonom ous adm inistration. Even in the Bolshevik State o f the Soviet Union.STATE. of State. a 'popular social order* [volkstümliche Sozialordnung] (this phrase has been coined by W erner Som bart) m ight fill the space of a n o n statal. it is characteristic o f the tw entiethccntury State.'®® c) A sphere of the People. The triadic stru c tu re becomes 'apparent not only w herever one seeks to surm ount the liberal-dem ocratic system and proceed to a new State. It also corresponds to the great traditions of the (ïerm an theory o f the State. as it is in the F ascist State. PEOPLE Party constitutes the only political Party in Germany. a system of trade unions and associations. the m utual relationship between the three corresponding constitutions is in itself a question of the theory of law and S tate. that com prises the professional economic and social order. Even a corporative State (sta to co rporativo) of the F ascist S tate [K orporationsstaat des faschistischen Staates]. albeit in a different m anner. Likewise. a triadic stru ctu re had been attem pted. this triadic outline should appear whoUy convincing as a Hrst clean d ra ft o f the p resen t-d ay State stru ctu re . corresponding to the social and poUtical reaUties o f the tw entieth century. however. B ut the 13 . as well as the communal auto-adm inistration (based on the local neighbourhood). Hence. MOVEMENT. In what relationship the three series and their organizations stand to one another is a constructive and organizational question in itself. (kneraU y.

and incorruptible. As organization of the 'M ovem ent'. the additional question may be raised. They are applied eith er publicly and visibly. MOVEMENT. which was a historical reality approxim ately between 1815 and 1848. Still. it was characteristic o f the Hegelian civil-service State of the Prussian-G erm an type. W hereas in other States. cither in virtue of norm s specified in advance. o r internally and invisibly. of the relation between the civil attribute and the m ilitary attribute of the State. Then. because as Paul R itterbusch has recognized. the civil service would be conceived only as a bureaucratic tool of the pow ers in charge of the State. between the adm inistrative pow er and the pow er o f command within the ranking order of the State. under an already relativized m onarchy. and are penetrated. o r freely. was already exercising the functions of the stratum in charge of the State. of a 'general theory of the State'.STATE. It emerged from the n p rm ativ ist effo rts to dissolve the concrete State and the concrete People into 'generalities' (general education. according to circum stances and expediency. which has already been mentioned several times. leadership o r domination. that a State civil service of high cultural and m oral standing. and develop into all kinds of institutions. general law 14 . and will be enlarged on. whence the other two o rd ers come second to it. of m utual influence. I do not say. the m utual rela­ tionship of the three series may be quite different in d ifferent political entities at different tim es. a g reat m any m ethods have em erged. To pursue this subsequent problem is the task of a concrete 'th eo ry of the State' of the tw entieth century. the politically leading Party carries b oth the State 'apparatus' and die social and economic order as also the whole of the political unity. fu rth e r. PEOPLE phrase 'P arty that carries State and People' already conveys th at the political leadership m ust re st on this series sequel. F ro m this surges the central significance of the statal and legal concept of the political leadership. after the pure absolutism and before the constitutional recognition of the bourgeoisparliam entary legislative bodies. A bstractly and generally speaking. To give an ex­ ample. the category ■general' in the theory of the State is a typical concern of the liberal nineteenth century. m oulded and led by it in an authoritative way. whose position is in the middle of our outline.

which fully corresponds to the incongruence between the people's political unity and the State adm inistrative m achinery . and at the same time. which in this sense are positive. has been transform ed by 'this triad. m ay the law then spread to all the sectors of the public life in a free and autonom ous expansion. can no longer grasp the new reality. derived from the historical conditions of the nineteenth ¡century. T here­ fore. 2. the m ore m anifestly it is at variance with the law. 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 . it has come to be recognized as ju st |a p a rt o f the political unity. As statal d v il iservJce and offidaldom . to destroy their political essence. general theory of knowledge) and in this way. One needs always to rem em ber that the concept of 'S tate'. This legality identifies as little w ith the law of the people as does the State machinery with th e political unity o f the people. and the Jaw 15 . the State loses the m onopoly o f the political which it acquired in the seventeenth century and in the eighteenth. n o r w ith a self-su ffid en t 'a u th o rity '. ever since the nineteenth century the C onstitution developed fo r this State and the legality deriv­ ing from it have m oved fro m the centre of the com m unity to another position o f the political life. the essence o f the State ofñdaldom and public (administration no longer identifles itself alone with the political whole. Instead. As a resu lt. Only on the basis of uncontested political dedsions. N ow ­ adays the political cannot any longer be determ ined b y the State. relative because instrum ental. finally. and th a t the traditional way of representation. and on the oth er. FEOPLE itheory. It received th a t secondary significance. belongs the p rio rity in securing political unity.and had given it expression on the one hand b y holding firm ly to the position th at by 'law' it should be u n derstood every 'juridicd norm*. rather the State m u st be determ ined b y the political. MOVEMENT. how ever sound the latter is in its (contents.STATE. To the law. and p re d se ly a part that Idepends on the organization which carries the State. as well as that of 'People'. by form alizing and mechanically rendering jurisprudence into law. befitting it. The m ore form al and mechanical the legality becom es. in substantive sense. It became th e functioning m ode o f the State adm inistrative machinery.

MOVEMENT. th at is to say. even of custom ary law. justice and the adm inistration of justice. 252). Alongside it. conceptual exacerbation of the conflict into the 'general* theory of the law and of the State. every Jaw becomes 'State law' in a particular sense. In this way. that is to say. In a passage that is quite characteristic of the consequential m anner of the liberal-constitutional thinking (and at the same time. Unlike the m ere adm inistrative decree. Hereby.STATE. that is to say. it could ultim ately consider justice in general only as 'the embodiment of the rules of State activity'. the so-called m aterial concept of the law would continue to exist in the legal praxis. One does n o t refer here to the familiar distinction between popular justice and law yers' justice {Juristenrechi]. the parliament. that is to say. as already said. have as their contents the State adm inistration with respect to the executive activity of punishm ent and execution carried out and com pleted by m eans of the State organs' (Kelsen. A doctrine. acknowledges the law only as a calculable link of the restrictive machinery of the State. the liberal norm ativism simulates a 'dominion o f the legal n o rm '. it was addressed n o t only to the 'civil 16 . and the other way round: every State activity becomes 'law'. This has nothing to do with law or justice in an objectively substantive sense. which in reality is only the dominion o f a system of legality over the adm inistrative machine. b u t is typical of the political system o f the liberal depoliticization. that statute the subjects and set norm s of punishm ent and execution. a system in turn ruled by no n -statal and politically irresponsible forces. it is said: 'Even the legal obligations of the legal maxims (in the narrow sense of the term ). Hauptprobleme der Staatsrechtiehre [Main Issues of the Theory of State Law]. The law was 'legal norm ’. as working mode of the com petent authorities and co u rts. as much as to the abstract. and every legal norm . of its relationship with the German language). p. As a resu lt. would take into consideration only the civil servant. which denies any substance to the law. This p ositivist and 'functionalist' way of thinking. and not the 'citizen'. im plementation of the norm by that p a rt of the State adm inistrative m achine which is bound to norm s. which is interesting fo r its internal logic. PEOPLE in turn into the decision of the majority of the legislative body. was 'law'. as the tru e and p ro p er addressee of the legal norm .

governm ent against people. MOVEMENT. constitutional State. PEOPLE servant' (subject to a special relation of forces). was a liberal polemical legal concept in the fight against the 'unfree* soldier and career®* civil servant. and therefore.! STATE. Indeed. has nothing to do w ith the 17 . carrier of State and People. individually worked out fo r each d v il servant. but also to the 'citizen' (subject only to the 'general' pow er of the State). too. In the triadic organization of the political unity. the People is no longer sim ply a sum total of non-governing v o ters. ®' The spheres of popular and professional autoadm ininstration are penetrated by the M ovem ent in a corresponding m anner. there were in fact tw o diverse and ilisconnected representations of law and jurisprudence. and whose freedom . and people against governm ent. so much so. two oth er kinds of law. instead o f quoting the idea and the institution of the Cîerman Civil Service. ^ e leading political body. In the N ational-Socialist State. The d v il servant finds him self no longer in opposition to the dtizen calling him self 'fre e '. Here. The Q v il Service is no longer compelled. cancelling one another. This 'depoliticization'. The civil servant is now a com rade of the people in a political unity based on ethnic identity. as in the system o f p arty -p lu ralism between 1919 and 1932. however. and people against the State. the binary way of thinking w orks w ith an tith et­ ical divisions such as the State agmnst the people. as in the m onarchical. and as P arty com rade. and this organization has filled the decisive executive p o sts of the State adm inistrative body w ith political leaders fro m the M ovement. Thus. two addressees of the norm s and two notions of the law. form erly. a member of the organization carrying State and People. the notions o f 'State' and 'People' assume another position. and à meaning altogether different from th at w ithin the binary system of the liberal democracy (described in C hapter III). F o r th at reason. has the task to prevent and overcom e all the antitheses of this kind. essentially unconnected with the State. th a t one comes to recognize here the autonom ous stru ctu re o f a sphere by far m ore depolitidzed and different from the organism of the civil service and the offidaldom that was only relatively depolitidzed by virtue of its static character. to organize itself as an in terest group and to refer to the 'w ell-earned rig h ts'. carrying State and People.

and also the political guarantor of the depolitidzed communal o r professional auto-adm inistrationf 3. is not u n d e r c o n sid e ra tio n . resulting from the inner weakness and corruption of the W eimar system . one may say th at the combination o f the federal idea with the State idea . and subm itted the latter to the political leadership of the subleaders subordinate to the Reich leader. to w h ic h t e r i a s of th is tr ia d ic s tr u c tu r e th e c h u rc h e s belo n g . it m ay fin d ita p la c e in th e th ir d se rie e . and particularly the 'independence' of the judges. th e s p h e re of autonom ous a d m in is tra tio n . every federal organization impHes * T he q u e e tio n . carrying State and People.was fo r a century the real danger to Germ any's political unity. th a t w o u ld m ean th a t i t cla im s to a ssig n to th e S tate. b u t if i t lays t h s p o litic a l claim to to ta lity . The law of 7 April 1933 on the Reich G overnors has secured the precedence of the political leadership of the Reich over the provinces.STATE. the dynamic engine opposite the static element of the admin­ istrativ e machine directed by regulations and the political d ed sio n s that lie in it. are outdated. o r in the form of a federal State . Consequently and in a specific sense. Actually. 18 . Both the 'objectivity' of the civil service. both the traditional concept o f the federal m onarchical-dynastic State of the nineteenth century and the m ulti-party federal State. but re s ts entirely on the political decision of the political leadership. As long a s th e c h u rc h does n ot lay a n y to ta lita ria n p o litic a l claim .** In this way. t h a t ia to sa y . It is one of the fundam ental notions of the politically uptodate German generation th at to determ ine whether a m atter or a field are apolitical is precisely a political decision in a specific way. with all the advantages and the security of the apolitical. The new regulation of the relations between th Reich and the provinces [Länder] em erges from the new overall stru ctu re.either in the form of a confederation. an d th e People th e ir p o aitio n on its o w n . Making use o f a brief and synthetical form ula of the State law. only if both subm it to the politick leadership and the political decisions o f the M ovement. PEOPLE earlier political m isuse of the allegedly 'apolitical' business of the autonom ous adm inistration. th e M ovem ent. an d to d is c rim in a te on i t s o w n betw een th e frie n d a n d th e en em y of th e People. as well as the apolitical character of the traditional sphere of popular auto-adm inistratio n are possible. MOVEMENT. th at is the political element of die com m unity.

in case of conflict. becomes evident only against this background of the pre-N ationai-S ocialist w orld of ideas of the m ulti-party federal State. unless the concept of State transform s itself essentially once m ore. and the pronounce­ m ent of the Supre C o urt of 25 O ctober 1932 contained fine examples and evidence of such 'endless stipulation of federalism '. after this law. it is no longer possible to designate the provinces as States. some skilful advocacy would n o t 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. and thoroughly 'depoliticize' the province-S tates. The term 'State' would then convey a certain autonom ous stru ctu re and decentralization within a political unity. although given the fast process of developm ent of th e ' Germ an unity nowadays. above all under the * A cco rd in g to th e R eich C om m ieeioner for J u e tic e .* The true value of the achievement. PEOPLE a guarantee of the territorial and political sta tu s quo. render the statal unity of the whole Germ an people relative. The w ritten statem ents and the sum m ings up of the Leipzig trial of the B raun-Severing-H irtsiefer Prussian governm ent and of the Held Bavarian governm ent. 19 . respectively. in o rder to preserve the provinces as S tates.STATE. but also in a form ation built up as a federal State. S tate M in is te r Dr.2 0 9 1 . Perhaps one m ight try to rem ove the 'political' trait fro m the concept of State. as it did once. F o r this reason. This m ust benefit the very statal character of the individuai m em b er-state as a political unity. which the law on the Reich G overnors is. in Ja rittiM ch e W o e h a n a e h n h . and th at they cannot claim a right to their own policy under any form . perhaps it m ight appear already out of date. MOVEMENT. B ut today it is m ore im portant to make sure beyond any doubt that the territorial stru ctu re s inside the Reich subm it absolutely and unreservedly to the political leadership of the Reich. ju s t as the political unity o f the 'United States o f A m erica' is made of 'S tates'. ®® Indeed. previously. p. was rem oved after 1871. not only in a confederation. its characteristic feature. it would n o t be u n ­ thinkable to designate lands or provinces as 'S tates'. after 1871. and in this way. C onsidering the changeability of w ords and concepts. P ra n k a t th e R eich Congraa» o f th e P a rty In 1 9 3 3 . 1 933. as sovereignty.

it would be better to avoid this word which is so much m isused. I would like to limit the notion of communal auto-determ ination stric tly to the auto-adm inistration o f local neighbourhoods (ru ral and urban. The Reich is a com posite form ation of largely autonom ous lands o r provinces. included in the constitutional law of 24 March 1933. N or can it be by any chance inferred in a roundabout way from the proviso fo r the institution of the Reichsrat. because one is dealing with territo rial corporations. and in re s t. As long as there is the danger th at confedera­ tion and federal State m ight be regarded as equivalent. but upon the the self-contained unity of the German People and of the National-Socialist M ovement. departm ent. The noxious concept of the nineteenth century. PEOPLE until now extrem ely dangerous p retex t of the 'apolitical character* of an issue. to relate the auto-adm inistration to professional and similar organizations whose place in the overall fram ework of the 20 . are structures of a particular kind and of a type utterly autonom ous. in virtue of the old thinking habits of the nineteenth century.have not come to an end. which conceptually dam ps together federation and S tate and so makes a non-S tate of the Reich. as well as those th at m ight be form ed.*® The p resen t Germ an lands o r provinces. The political unity of the German people does n o t re s t upon the German lands or the German tribes. Thus. and rural district). German State is only the Germ an Reich. F or our present-day German notions. Let us n o t fo rg et what is said in Adolf H itler's book M y Struggle about ‘federalism as m ask'. but it is not a 'federal State'. carrier of State and People.STATE. MOVEMENT. W hether the term 'federalism ' should be maintained is purely a practical question of term inology. Indeed. the German p ro v ­ inces enjoy certain pow ers that belong to the 'authority of the State'. There is no longer any constitutional guarantee of the te rrito ry o r the existence of today's provinces. but under no circum stances are they 'S tates'. the idea of a 'depoliticized S tate' is as impossible as that of a 'demilitarized arm y'. they do have State authority. m ust disappear fro m internal Germ an law.** The developm ents started with the law of 7 April 1933 on the Reich G overnors . The L eader's statem ents at this year's Party C ongress in N urem ­ berg are known. They are neither States n o r bodies of communal auto-adm inistration.

The link with the State is based m ainly on personal ties. PEOPLE National-Socialist fabric is m arked out closer to the series ¡'People'. Such a State organ (organo statale) is only a certain organ of the Party. casual m anner. the P arty is a c o r­ p o ration of public law. MOVEMENT. o r other kinds o f pltiralism . the m em bers o f the Party and the SA are subordinate to a spedal jurisdiction of the Party and the SA.. see Santi Romano: Corso di diritto costituzionale. is equally and indissolubly linked to the State. and in fact. The L eader's D eputy and th e Chief of Staff o f the SA®’ become m em bers of the Reich Cabinet in o rd e r to guarantee the d o s e s t cooperation of the services o f the Party and the SA w ith the public bodies. 1933. the P arty and the head of S ta te . I. Despite some isolated sim ilarities between the National-Socialist State and the Italian F ascist State. a g reat difference has come to the fo re regarding the relationship between the Party and the civil service. but on the real foundation o f the general fram ew ork of the poUtical unity. d a s s .*® The National Socialist Germ an W o r k e r s ' P arty. p.STATE. 1016). 4 th ed. These personal ties have 21 . with which the heads of the different organizational series bind each other n o t in a capricious. 1 December 1933. which are under State control. An entirely new sequence of questions concerns the legal relations between the State and the M ovement. as ca rrier o f the idea o f the State. b u t n o t an unm ediated public o r State organ. in another and superior way than any of the m any corporations o f public law. the Party and the arm y. B ut neither the P arty organization as a whole. namely the Grand Council of F ascism {il Gran Cosiglio del Fascismo. p. W ith regard to their special and lofty duties. I t goes w ithout saying th at the N ational-Sodalist P arty is in no way a 'p a rty ' in the sense of the now superseded p luralisticp a rty system . It is the leading body th at carries the State and the People. n o r a certain authority as su d i have the character of an unm ediated 'State organ' today. 127). the Fascist P arty is indeed 'an organ o f the S tate' (un iorgano dello Stato). A ccording to the law to secure the unity of P arty and State o f 1 December 1933 (RGBl. * 4. The law of 14 July 1933 against the reco n ­ stitution of parties secures this unique and ex dusive p re frential position fo r it against all attem pts to revive the previous confessional. Since the law o f 14 Decem ber |1929.

and in that way . and to p re ­ serve the co urts fro m the dangers of the political sphere. All the interferences b y the courts. All fu rth e r ties and delimitations . A right to veriHcation. his paladins and subleaders occupy other offices o f political leadership. because these 22 . based on such alternatives. M inisters of Prussia. as the co urts have assum ed in relation to the laws of the Reich (Ruling of the F ifth Civil Senate of the Reich C ourt of 4 November 1925. M ovem ent. M ovem ent. there may be typical means of contact between the State and the P arty. and so on. p. PEOPLE already to som e extent acquired an institutional character: the Leader of the National-Socialist M ovem ent is the Chancellor of the Germ an Reich. their fundam ental incom patibility . People triad. F irst of all.are a question of expe^ency. It will be necessary to ensure a clear delimitation o f the various spheres by m eans of w ell-tried practices.STATE. th at is. Reich G overnors. 320f). 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 stru ctu re. in the in terest of their independence. I l l . M inister P resident of Prussia. In addition to these personal ties. People are distinct b u t n o t divided.even the fundamental com patibility of P arty office w ith S tate and auto-adm inistrative p o sts. consistently in agreem ent w ith the logic that State. Because it seems likely th at the open and the hidden enemies of the new State will make use of the old political means to rep resen t som e issue as 'a purely legal m atter' in order to drag the State and the M ovem ent into court.to put on an act th at they are on a par with the State and the M ovement.** Vol. B ut the organizational basic lines are set by the State. linked but n o t fused. The link between State and Party cannot be grasped by m eans of notions used until now when talking about State and non-S tate. o r the opposite. certain possibilities to influence. nom inate and recom m end for regional o r local Party offices). p arty and non-party. is out of the question as far as the governm ent laws of the Reich Governm ent are concerned. such as that o f the so-called conflict inquiry [Kordliktserhebung]. Bavaria. RGZ. particularly of a personal kind (rights to propose.through the equalization of the parties inherent in the logic of trial procedure . MOVEMENT. such as Reich M inister.

The courts are ju st as little p erm itted on any p retex t to in terfere in the internal problem s and decisions of the P arty organization. MOVEMENT. public or private. §839 of the G erm an G vil Code)^° be applied to the P arty o r to th e SA. and with it also th e destiny o f the political unity of the Germ an people. The Ñational-Sodalist Party is neither a State in th e sense of the old State. judicial o r political. We are cionfronted by a completely new problem of State law. it would be dangerous and m isleadjag to keep using the old distinctions between law and Í^Utícs and to p u t such alternative questions o f statal and àoii-fstatal. PEOPLE législative pow ers of the Reich Governm ent have a constitua '^ n á l character. No o th er authority. on which this duty is incum bent. ca rrier o f State and People. The in te rn ^ organization and discipline of the Party. Concerning this m atter. a n d thirdly. jrhich is incompatible w ith the new triadic overall stru ctu re the political unity. and least o f all a bourgeois j u d i < ^ y m oulded procedural court. secondly. are its own business. it is entirely self-reliant. in the sense of the old juxtaposition of the State sphere and the S tate-free inhere. The Party offices. this legislation by the G overn­ ment is a t the sam e time a m atter of acts of a governm ent iwhich through the rig h t to legislate has re sto red th e true 'donCept of ' g o v e r n m e n t ' . such an in te rfe rehce by the courts could be justified only by the dual view á State and no n -S tate (to dwelt upon in C hapter III). I 23 . n o r is it n o n -statal and private. particularly of collective responsibility fo r abuse of office (A rticle 131 of the W eimar C onstitution. have to make use of a function on which no m ore and no less than the destiny of the P arty depends. nowadays. : Hence. and violate its leader-principle from w ithout. can take from the P arty or the SA this colossal task which also amasses all the risk of the political. N or can the criteria of responsibility.n STATE. It m ust develop its own standards on its own strictest responsibility.

^ The bourgeois legal State of the 1800's was ruled by thaij duality rig h t into the specificity of its legislative. and even into the last] ram ifications of seemingly quite ab stract theories andj conceptualizations. is n o t a 'legal S tate' either.STATE.] intellect and pow er.] betw een law and force. This is expressed 'ideologically' (al specific and typical term of the liberal nineteenth century) ini the w ell-know n and m uch-cherished antitheses. 2091). Dr. and so on and so fo rth .J the binary division has a very concrete constructive and! organizational significance. is n o t a 'constitutional State'. 1933. The subsequent effects both of ] the liberal 'ideology' and of the binary State stru ctu re have until the p resent day dominated the legal thinking. com -: m ensúrate with its intellect. b u t in fact. individual andj com m unity. and so on. it is necessary to become aware n o t only o f the ideological contradiction b u t also o f the State stru ctu re erected on it. F ra n k (Juristische W ochenschrift. it is n o t 'free'. It has succeeded in creating a 'practical arrangem ent' of its own. a 'despotism '. exchange-] able and negotiable. The liberals call a 'legal s ta te ' only the dually built State. to b o rro w a pithy expression of the Reich Commissioner fo r Justice. p. The new triadic State structure of the twc century has long superseded the binary statal constitutionaij schem a of the liberal democracy of the nineteenth century. law and State. Hence. The vocabulary of this political struggle is quite extensive on this point. A differently built S tate 'has no constitution'. Still. as well as the m anner of speaking of the ju rists b ro u g h t up in the liberal system . now alternative. it is always the same in its political exploitation of a c e r t ^ concept o f 'law ' and of 'legal S tate'. b u t an 'autocracy*. S tate'and society. admin4 istrativ e and judiciary organizations. law and politics. MOVEMENT. a 'd ictatorship'. now 'oscillating'. intellect and S tate. and naturally. PEOPLE III THE BINARY STATE CONSTRUCTION OF LIBERAL DEMOCRACY AND THE GERMAN STATE OF THE a V I L SERVICE 1. 24 .

and the judiciary. it designates a n o n -co n stitu ted self-organizing sphere of freedom . the constitution of the State. The p a rt consisting o f the liberal basic rig h ts is no constitution m the organization^ sense. had the sam e political sense. the liberal outlook first forces the M ovem ent into the State. but parliam ent is the representation of the n o n -statal society against the State. the executive. th at is.STATE. Otherwise. In th at constitutional system . between State and S ta te-free society. the State into a 'law' opposed to the State. therefore irresponsible and uncontrolled. the judiciary had organizationally an interesting interm ediary position between the command mechanism o f the State and the S tate-free 25 . between politics and the apolitical private sphere. the law is essen­ tially a decision of parliam ent.* ’ The duality re sts on the co n trast between the State and the free individual person. that is to say. and then by way of the 'legal State’. This division explains the typically binary constitutional schema o f the bourgeois legal State. The universally recognized organizational principle o f the so-called division of pow ers into three p a rts . th at is to say. between statal pow er and individual freedom . into the liberal system of the nineteenth c e n tu ry . Everything was set to regulate and control the political power of the State and to shield the freedom o f the sphere o f society from the 'encroachm ents' of the S tate. free in the sense of n o t statal and n o t 'constituted'. 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. namely. namely. as it is known. the reality o f the State com m and. A judiciary independent of the State was expected to lend legal and procedural safeguards to the protection against the State. On the co n trary. A gainst it stands the organizational p a rt o f the statal constitution. MOVEMENT. PEOPLE and of its institutional and conceptual co n stru cts. because in th at ranking system . consists of a basic legal part. to divide the State pow er in such a way as to allow the no n -statal society to rule and effectively 'control' the State 'executive*. basic rights and freedom s o f the society composed of free individuals. the legislative. delim itation and restrictio n of the political power of the State. the constitution of which. and o f an organizational p a r t that establishes norm s constitutive of and holding together the State. the com m itm ent.

There­ fo re. entirely political form ations then dom inate both the will o f the State (by way of legislation) and also (through societql constraint and the force of . productive proletariat. in order to protect the helpless and defenceless. it is a natural and sensible attem pt to erect a whole edifice out of the protective legal m eans and institutions. free citizenry. The liberal s ta t^ and constitutional stru c tu re thus recirons with a simple and direct confrontation between the State and the private indi­ vidual. the 'S tate'.s. and on the other. poor and isolated individual p erso n from the pow erful Leviathan. and on the other. the ■purely private law') the individual person whom they m ediate. b u t only principles that bear upon the State constitution.o . Only starting from this confrontation. It ju stiiies thereby that the protection against the State will always be shaped by justice and will re su lt increasingly into the ruling of a co u rt judicially independent of the State. it was independent of the official directives coming from State superiors.STATE. public opinion.). as already said. MOVEMENT. Then the political pow ers take cover in every conceivable way behind the ram p art fo r safeguarding the individual freedom of apolitical individual persons in need of protection. PEOPLE social sphere of society. and which should lend the S tate meaning and p u rp o se. N onstatal b u t. a . and those n o n -statal (but by no means p o litica l) 'auto-organizations' will on the one hand com press the individual persons ever tighter and m ore forcefully. in the name o f the 'law*. challenge the State under various legal titles (such as people. it was a suitable tool fo r p o litic ly inñuencing the S tate and holding it in the palm of one's hand. society. its justification and its limits. it was a State offícialdom. These become the true and real vehicles of the 26 . But all this becomes quite absurd as soon as strong coJJective form ations o r organizations occupy the non-statal and apolitical sphere of freedom . ^ *M ost of the legal safeguards of the so-called legal State have sense only with regard to the protection of the poor individual. F o r that reason. On the one side. they are neither a State-building principle nor a constitution. The basic rig hts and freedom s of the statal and con­ stitutional system of liberal democracy as such are essentially rig h ts of the private individual person. Solely on those grounds m ay they be considered 'p o litic a l'.

Consequently. In the State cdnstitution of the liberal-dem ocratic legal State. 1932. A num ber of political parties o f the m ost varied kinds.*^ in the same way. so th at all the p artid p a n ts in this system are compelled to an inevitable abuse of alJ the legal resources. as ap­ propriately once said by a N ationai-Sodalist (K arl Fiehler. a com prom ise th a t is 'always a commitment of the better to the w orse'. PEOPLE !!jpblitical decisions. Every attem p t to in sert them makes the liberalP d ^ o c ra tic State and its system b u rst. p.. They enjoy all the advantages of the State pow er without relinquishing the advantages of the sphere of freedom. evade any political risk and responsibility. politically irresponsible and uncontrolled. In virtue o f its internal logic. b u t they will m aster it from the non-'public' ^individual sphere. because the liberal binary schema has no place for them . solid and even self-contained organizations of national. G roups and resources. 12). As it may saud of the ideal democracy) that it re sts on a 'daily plebiscite'. Nazionalsozialistische Gemeindepoiitik [The Local Policy of National-Sodaiism ]. confes­ sional or other kinds would come to an agreem ent in secret on the exercise of the S tate pow er and on the rep artitio n of the national income. Munich. if such formations succeed in seizing the positions and the m eans of State pow er by way of the political parties dom inated by them . as well. then they look after their in terests in the name of the State authority and of the law. that remain in a m inority and do n o t manage to join a m ajority 27 . trade-unions and pow erful economic associations. the constitutional law of such a system m ust be a purely instrum ental. it may be said of such a pluralistic system that it is integrated and able to exist only by the 'daily com prom ise' of heterogeneous pow ers and alliances. and in this way. churches and religious societies. and wieiders of the statal instrum ents of power. they can legally never appear w hat they are in the political and the Mdal reality. technical weapon which everyone wields against everyone else. because ostensibly apoliticd. the alien and the enemy o f the State against the com rade of the people. MOVEMENT.STATE.and th at is the typical developm ent . free o f State and constitution. The pluralist system o f a m u lti-p arty State m ay 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 C onstitution.

this p a rt of the C onstitution likes to render justice to the reality o f today's social life. loyal o r! inimical to the nation. The W eimar C onstitution had been w orked o u t dually. All the political] facto rs. I observed that the pow er o f th ^ governm ents of the W eim ar coalition did not re s t on theirj legality b u t on the political exploitation of the political! advantages of the le g ^ holding of pow er. such as public-law institutions 28 . are obliged out: o f necessity to defend their goals and principles. num erous other dispositions of this 'basic rig h ts p art' guarantee and firmly fix things that are in contradiction with a liberal-dem ocratic constitutional construction. In 1932. howevef| illiberal o r antiliberal. PEOPLE coalition or strike a deal by compromising. n e u tra l m eans. and the survival of the political unity of the people a m ere waste p ro duct o f the 'd ^ y com prom ise'. in accordance with the liberal-dem ocratic schema. a) Full as it is of internal contradictions. is and^ rem ains u tterly inadequate and incommensurable to th e very ^ reality o f a social and political life that is ruled by politically ] pow erful n o n -statal o r suprastatal organizations. organizational p a rt. recklessly take advantage o f all thefi legal possibilities and o f all the positions of pow er they-t occupy in such a statal and constitutional system . The binary stru c tu re o f the ensuing 'legal State'. as well. governm ent aslr well as opposition. I t is : capable o f distinguishing only between legality and illegality b u t neither between rig h t and wrong nor between friend and enemy. All the concepts and| institutions of such a system cannot but become f ^ s e and| absurd. MOVEMENT. national o r international parties. 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. Besides. the seco main p a rt (th at on basic rig h ts) of the Weimar C onstitution cancels i t s ^ out. because ] the constitution had becom e simply a functionalist. m ajority o r m inority form ations. against the State by means of liberal-] dem ocratic argum ents and m ethods. resting on the opposition between the State and the individual. the second p a rt includes the liberal freedom s of the individual person only in the smallest degree. B ut under the title 'Fundam ental Rights and Obligations of the G erm ans'. and the H rst. A s a result.STATE.

In th at way. PEOPLE vid claims o f churches and religious societies (A rticle |l37f). with the h d p o f all kinds of legal p erso n s endowed w ith d v il and com m ercial rig h ts. a State o fn d a l.** M oreover. of public and private interests and functions. into a chaotic jum ble o f th e statal 29 . everything was reconciled with everything else and Germ any was 'the realm o f unlim ited com patibilities'. * * and likewise. In such a system . But. MOVEMENT. th at pluralistic S tate consisted only of cro ss-sectio n s and an aggregation and amalgama­ tion. and many o th e r things. and on the o th er and at .churches.STATE. still w ant and juridically can rem ain Iprivate-law asso d atio n s is sym ptom atic of th e confusion in |th e essentials o f such a State. one may sim ul­ taneously be a Reichstag deputy. * * the public-law institution of the career d v il MTvice (A rtid c 129). and a member o f the su p ervisory board of various societies. and |i n spite o f all th at. * although they have so far preferred technically to emain p riv ate-law organizations or even n o t JegallyJqualifying form ations. the llremaining public-law institutions. C orporate bodies and local asso d a tio n s knew how to m anage economically. corporations and the career j. and som e at least tolerated.dvil service . an anarchical pluralism o f social forces w ould grow rankly. the public-law in sti­ tution o f communal auto-adm inistration (A rticle 127). som e p erm itted . th a t was based on prin d p le. o f the o th er private-law su p p o rts and relief I organizations. a R eichsrat delegate. Big private-law unions o f d v il serv an ts came into being alongside of the public-law in stitu tio n of the d v il service. and évade State control. N ot only political parties b u t also a pow erful : private-law confederation o f countless religious and cultural assodations and d u b s . nonetheless. w o rk ers' unions and employers* a sso d a tio n s are so acknowledged in this p a rt of the C onstitution (A rtid e 165). the same tim e. a p a rty leader. featured in the so-called Ip a rt o f basic rig h ts .would n o t be able in any way in such a I system to stop making the widest use o f the various I political p arties. a church dignitary. on the one hand. Indeed. T hat such stro n g collective forces l^av e come to be 'acknowledged' in a State constitution. som e integrated. Behind the duality of the liberal-dem ocratic constitutional schema. this re m v k a b le system functions on the whole only by m eans of such transversal connections. linked up w ith and leaned upon the churches. Ultimately.

as much as the conse­ quence o f the internal logic of the W eimar liberaldem ocratic State. b u t we experience already beyond i t th a t our triadic S tate stru ctu re . invisibly and irresp o n s­ ibly. genuine ca rriers of th e State. MOVEMENT. anonim ously. Because the p a st receives its lig h t fro m the p re se n t and every knowing m ind is a contem ­ p o ra ry m ind. the political an( the fictitiously apolitical. in A rticle 16S. we see now that many a time and in certain S tates. Thus. ra th e r suprastatal. and which h as rem ained w ithout any significant practical result. PEOPLE and n o n -statal. A so d ai o r economic constitution is possible only in a triadically assem bled State. even in the earlier political fo rm atio n s and institutions. M oreover. additional construct.STATE. b) A nother graphic illustration of th e inadequa the binary constitutional schema is offered by the sto ry o thè plan fo r an econom ic constitution which was also fìrml) 'an ch o red '. it unhinges the whole binary system . fo r instance.^* In liberal-dem ocratic binary system . o r State and the sq>oliticai sphere o f hreedom). a t the end of the b a slc -rig h ts p a rt o f th e W eimar C onstitution. so to speak. E ith ^ it is achieved indeed. N ot only are we today aware o f the int contradictions o f such a pluralistic system th a t occurs behind the legality of the liberal-dem ocratic constitutional system . in secret. and in that case. with its d e rg y o r a 30 . when com pared to the liberal-dem ocratic duality (o f State and society. we recognize those m agnitudes and organizaions. w ith devices sim ilar to those o f the provisional Economic Council o f the Reich. is the self-evident prem ise o f political honesty and decency. * * 2. through all the disguise o f freedom and equaHty. Today. o r it is practically insignificant. an economic constitution is an Im possibility. also often inimical to the State. the church. forces which under the protection of 'liberal freedom ' can play t h d r role of a politically dedsWe m agnitude. th e public and the private. I t was n o t so much the deliberate ill will of all th e interested p artie s o f the pluralistic system . non-statal b u t certainly n o t apolitical. the duality seem s to us a disguise and concealm ent o f forces and pow ers. introduced by the decree of 4 May 1920. th at the repeated attem pts to introduce a real and definite economic council of the Reich would faU dism ally.

an 31 . and since about 1890.STATE. the 'corporations' co n stitu te the transition fro m the bourgeois society to the State. * ° F o r him . * ’ Lorenz von Stein emphasized alongside o f the governm ent adm inistration. 266). both the action and the task o f G erm any's N ationai-S odalist M ovem ent appear ever g re ater and awe­ inspiring. R ecording to Hegel (The P hilosophy o f R ight §250f). in his adm inistrative th e o ry '(I. takes on the gigantic perform ance of an organization th at carries the State and the People. on the one side. and w ith all p u b lidty. In m aritim e and m ercantile S tates. MOVEMENT. B ut given the p re sen t-d ay condition of our political aw areness. and likewise. the State is n o t a bureaucratic machine. while we take the liberal-dem ocratic constitutional schem a o f State and the individual. only the blindness and the im connectedness o f the so called positivism prevailed. A fterw ards. Tn o th er cases. A s concerns the evolution of th e G erm an th eo ry of the S tate particularly. PEOPLE governing o rd er. organizational norm s and freedom s fo r a façade only. on the other. Likewise. of the social and economic spheres are especially g re a t and incom parable in Germ any. that is. and as already m entioned. It openly stands by its historical responsibility. as integral p a rt of public life. certaW y . fo r instance. at all. as the ofHce o f auth o rity . would assum e the role o f S tate-carry in g organization. to the v ictory of the liberal mode of thinking and o f an u n sd en tific positivism had had no knowledge o f the binary schem a o f the co n tra st between State and so d e ty . A p ro fesso r of State law. the econom y o r a certain professional organization w ith its own jurisdiction would m o re often take charge o f the public o rd e r o f the political u nity . these insights into the stru ctu re o f the S tate were lo st in the so-called 'th eo ry o f s o d e ty '. the au to-adm inistration of d istricts. the G erm an theory o f the S tate until the m iddle o f the nineteenth centimy. and the asso d ations assigned by him to the sphere of the public law. Thus. com m unities and co rp o ra­ tions. this function m ight be exercised by a secret o rd e r like the freem asonry. Similarly. p. M any cross-connections are conceivable. and a free bourgeois society. as also of the organization of the N ationai-S odalist P arty . we will always come back to th at triadic stru c tu re and to the question o f the S tate-carry in g organization. in 1865. i t is d e a r that the historical peculi­ arities o f the Germ an d v il service and o f the arm y.

the German State remained a State o f soldiers and civil servants. FBOPLE alien to the Germ an nation. in his theory of the State as realm of objective reason. there rem ains the living consciousness that the State of the cultivated. of which the positivist theory of public law is p art. representing the executive power. Adolf Wagner®^ and Gustav Schm oller. with its 32 . fo r instance. and particularly in Prussia. A bout this of­ ficialdom O tto M ayer rightly rem arks that it was 'tru ly and above all.STATE. Only in the teachings of the Germ an historians and of the econom ists of the past generation. On this historical fact re sts the ultim ate and true meaning of the familiar w ords u ttere d by O tto Mayer: 'The constitu­ tional law wears out.B ut behind the façade of the binary liberal constitutional State. w hereas the adm inistrative law abides. B ut th at was n o t enough to sustain intellectually a State th a t was threatened froi. W ithin half a century. The German officialdom has never become a m ere bureaucratic 'machine' in the sense cu rren t in the W estern liberal democracies. the leading German State. a cultured career civil service that filled all the authoritative positions. I t was in that way that a socially and culturally political State of the civil service became possible. was the g re at German concept of the State p reserv ed while the ju rists betrayed it. it was decisive that the German arm y and civil service in m ost o f thd German States. over the liberal constitutional system m ore to the point than their au th o r him self had p erhaps wanted to believe. Even if 'historically' relativized. had alone fo r a century carried out the function o f the State-carrying stratum . had indeed abstained ju st as soon fro m any scientific attem pt to penetrate and explain this situation. MOVEMENT. That is the historical reality which had found a theoretical and philosophical system in Hegel's philosophy of the State. could dismiss the w ork of a L orenz von Stein as 'muddling cleverness'. even in the liberal nineteenth century. and was no tool but a free-standing pow er inside the S tate'. such as. the Germ an theory of public law. The State pow er machine and the S tate-carrying organization w ere concurrent. Above all.n the inside as well as from the outside. thus an adm inistrative State. U nder the p retex t of positivism .' These w ords express the superiority of the m onarchical officialdom. though. uncorrupted German civil service stands 'above the bourgeois society'.

It was natural th a t the civü service would always seek its ti^ e w orth ra th e r in the m atte r-o f-fa c t professional reliability and calculability of an exemplary adm inistrative and judiciary activity than in the responsibility o f political decisions. w hether open o r secretive. would continuously h it out a t th e prevailing system of norm s and all the principles o f the liberaldem ocratic constitution. The Germ an doctrine of State and law was neither the m ixture o f rh e to ric and sophistry with which the Prussian conservatives w ere supplied by Friedrich Julius Stahl . Likewise. a t the whole 'constitutional­ ism ' of the nineteenth century. Hence. The ex trao rd in ary political success scored by Bism arck between 1866 and and 1871** m ight blind one to the fact that from 1848 on. it has become incapable of carrying out : the decisive tasks of a politically leading stratum . visible o r invisible. neutrality and 33 . it had become apparent already before the W orld W ar that th e German civil service. As long as the Germ an State of soldiers and civil servants was a reality. MOVEMENT. and as a consequence.. the State could be regarded as a sphere of 'objective m orality and reason* th at stood over society. which a t any rate. they would all ultimately become the fo reru n n ers o f the advan­ cing political forces and pow ers of liberal dem ocracy in the name of the 'legal State' and of M arxism . however. was n o t a simple tool in the hands of foreign 'societal' forces. Indeed. PEOPLE ¡almost exclusively legal training.STATE. spread over m ore than tw enty individual States. our German civil service ¡has withered 'intellectually and politically in a supposed I'positivism '.his real name is JoU Jolson . it was possible to have a socially and culturally political State of civil servants. The reality of such a State of soldiers and civil servants. N otwithstanding all the obvious contradictions. 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. following directly in its steps. the German State of civil servants had been intellectually on the defen­ sive. nor the cynical positivism o f a Laband. Because of its objectivity. well. n o t even the liberal-dem ocratic W eiinar Con­ stitution and the fo urteen y ears' rule of a pluralistic p arty system could completely destroy the great trad itio n o f the Germ an State of civil servants.

Between 1919 and 1932. In order to survive in the long ru n . MOVEMENT. leaning only on the 34 . PEOPLE positívísm . had to renounce its essence. however. a stro n g pow er complex and command mechanism. It sto o d no longer above society b u t rather between the layers o f society. they have failed utterly. had . and produced a political leadership from their ranks. it g o t caught in the game o f the pluralistic system . the Germ an civil service found its justification only in a negotiated settlem ent and a kind of neutral position o f referee between the organized p a rty interests.STATE. it had to become playmate and political accomplice in the traffíc of m utual concessions. In this. the best-intended 'neutral accom m odation'. and as a resu lt. Thus the claim of the parliam entary parties to political leadership m et no serious resistance. could b e only a poor and insuffícient substitute fo r the m issing political leadership. It became ensnared in a p o sitivistic legal co nstraint which in the end was reduced to the legality o f a positivistic legislative State.too little to do with 'justice' in the practical and substantive sense. and expand the pluralistic system by another m agnitude. even if m orally superior to a system of internally corru p ted parties. and the foundation o f which. it was no longer by itself capable of recognizing the State enemy. N either the neutral d v il service nor the pluralistic party system and its parliam entary operation have accomplished their statal tasks. D uring the W orld W ar. accepted only because of the need to fill the void of political leadership somehow. ^ * B ut neither of the ostensibly 'authoritarian' governm ents of von Papen (between July 1932 and November 1932) and of Schleicher (between November 1932 and January 1933). of defeating him. o r w hat was m ore. th at law was indeed only th e com prom ise reached b y a heterogeneous coalition. would this realization also p ro fit the great m ajority of the German people. with clear political determ ination. In th a t way. Then. a group of poUtidans from the parliam entary parties could infiltrate the Germ an State w ithout any credentials of political achievement. N ot until the experiences of 1932. after th e collapse of the m onarchical State o f dvil serv an ts and in the m ulti-party State of the Weimar C onstitution. the law. The Prussian coup of 20 July 1932 has rem oved the governm ent of the W eimar system from P russia and taken fro m its hands the Prussian State. Finally.

the Hegelian State o f d v il servants of the nineteenth century. did the German Reich recover a political leadership. one could say: 'Hegel died'. was replaced by another State construction. The German career civil serv an t is freed fro m a hybrid position grovm obscure and unsustainable. on th at day. and are replaced by other form ations c o rres­ ponding to o u r reality of today. may be grasped only with the help of the triad of State. n o r could it ¡ give the Reich governm ent w hat it needed and w hat it did : hot dare to seize. T hat which in Hegel's massive mental constructs is tunelessly g reat and German. The Supreme C o u rt’s decision of 25 O ctober 1932 admittedly did not re sto re the Weimar system . Chancellor o f the Reich. characterized by the identity o f the d v il service and the stratiu n in charge o f the State. in the liberal-dem ocratic 35 . remains effective in the new form . from the standpoint of the theory of S tate and law. N ot until 30 January 1933. In his w ork. Adolf Hitler. and the German State found the strength to crush M arxism . its enemy. Today. O ^ y the form s o f the Hegelian State of d v il servants. On this 30 January. MOVEMENT. created by the absence o f a political leadership. could'fill the political vacuum. and is spared the risk of being debased. T here­ fore. published in 1932 and entitled Der Verfassungskom prom iB von Weimar. PEOPLE Military [Reichswehr] and on the m achinery of the Prussian State pow er. when the Reich P resident appointed the leader of the N ationai-Sodalist Movement. the German Reich. and th at the idea of a political leadership standing aboye the selfishness of sodetal in terests has been abandoned. are eliminated. B ut th at does not mean th at the g reat w ork of the philosopher of the German State has become meaningless. Paul R itterbusch has shown the desperation at that stage in the evolution of pluralism. * * That decision also refused to recognize the enemy o f the State fo r enemy of the State and help to render him harm less. Movement and People. das Experim ent der Prasidialregierung und die nationalBozialistische Staatsidee [The Constitutional Com prom ise of Weimar: the Experim ent of the Presidential G overnm ent and the N ational-Socialist Idea of State]. The enorm ous political task of the N ationai-Sodalist Party can be recognized only in this way. the political unity o f the German people. that corresponded to the internal situation of the State in the n in e te e n ^ century.STATE.

b u t with the same sense of its own concrete grow th. such as SA and SS. politically irresponsible.® * Likewise. on the basis of the regulations of the old arm y crim inal court. So wherever it m akes sense it will acknowledge the jurisdiction of a drum head court m artial.STATE. 264). National-Socialism may adm inister justice in the sphere of communal auto-adm inistration. and then ju st resign when it fades into the. societal pow ers. with regard to certain organizations of the P arty. kin o r kith. MOVEMENT. it has saved the peasantry. a sp ed al kind of disdpline in the ranks may be conceivable th rough the jurisdiction of im proved courts m a r tia lf ’ The scope of the authority o f the sum m ary court m artial will expand on its own. invisible. In a different way. I t secures and ciiltivates every true national substance w herever it encounters it: in country. 'S tate'. * ® IV LEADERSHIP AND ETHNIC IDENTITY AS BASIC CONCEPTS OF THE NATIONAL-SOQALIST LAW 1. It is an enemy of every norm ativist and functionalist concoction. the task of the Movement does n o t exhaust itself in supplying new blood to the stiffened body of a State o f civil servants. as the M inister President o f Prussia Gdring once called them . through the law of 12 May 1933 {RGBL I.: each according to its inner law. with objective 36 . to the level. National-Socialism does not think abstractly a stereotypicaUy. w ith the form ation of genuine ranks.of a blind tool of non-statal.®* I t has the courage to handle differ­ ences differently and to carry through necessary differentia­ tions. as it has reintroduced it fo r the arm y. On] the other hand. unite b u t n o t fuse.** it has cleansed the German d v il service of alien elements. m ust discrim inate but n o t divide. p . I t has established the law on inherited peasant estates [E rbhofrecht]. that is to say. The three g reat 'flyw heels'. run one next to the other. thus resto rin g its station. PEOPLE way. and all in unison with the political whole.

of the State itself. a) The acceptance of the m anysidedness of spontan­ eous life m ight lead again vnthout delay to an unfortunate pluralistic splitting of the German people into denom ina­ tions.STATE. 37 . A strong State is the prem ise of a sound life. I t needs a unitary idea of form to give a general shape to all the spheres of pubhc life. a consistent main principle m ust be recognized firm ly as much. there is no norm al State which is n o t total at the same time. would n o t necessarily be by itself the basis fo r a split within the State. industrial town. However num erous the viewpoints of the regulations and the institutions of the various spheres of life. characteristic of its different ranks. and an unravelling spot of the pluralistic splinter­ ing and disintegration. though. m u st be applied both to the State adm inistration and to the various spheres of auto-adm inistration. unless a stro n g State uplifts and guarantees the whole of the political unity over the m ultitude of form s. as it was then called). a p rin d p le different fro m th a t of the State 'executive' (th at is. Every uncertainty and every split become a crevice fo r the insertion of form ations firs t neutral. The stren g th of the N ational-Socialist State resides in the fact th a t it is dom inated and imbued from top to bottom and in every atom o f its being by the idea o f leadership. r^aturally taking into account the m odifications required by the specificity of the m atter. resulting from elections. classes. then inimical to the State. com m itted the serious political e rro r of allowing another organizational p rin d p le to arise in the communal auto-adm inistration. ®* The nineteenth-century German State of the soldiers and the d v il servants. to exclude fro m the idea of leadership any im portant sphere of public life. In this sense also. by means of which the M ovem ent has grow n great. This principle. It would n o t be perm issible. PEOPLE differentiations between village. country-tow n. w ithout being em barrassed by the false notions of equality of a liberal-dem ocratic schema. Every political unity needs a coherent internal logic of its institutions and norm ative system s. given the essential dissim ilarity between local com m unity and the State. But the elected local representation was perceived as the tru e carrier and representative of the local com m unity. so strong externally. estates and interest groups. tribes. MOVEMENT. The local rep resen ­ tation. big c ity and m etropolis.

a local parliam ent cannot organize political dem onstrations of p ro te st. it was defeated as a result. which was in force w ith regard to local elections. It is not necessary to go to g reat lengths to show that m atters m u st stand differently in today’s State and adm inistrative law. 'freedom of auto-adm inistration'. such notions as the 'idea of association'. fo r instance. th e th ree-class electoral law. as was the case’ . quite efficiently backed the conquest of the P russian State by m eans of an organizational principle radically foreign to it. it kept fighting on the defensive. and so b e 'free of the S tate'. th at would elude the State. In the long ru n . * * hindered the ultimate effects o f a sound liberal dem ocracy. S ^ . 38 . aware of its aim and purpose. the liberal bourgeoisie would create a sphere o f public law for itself. though. now advocating the idea of association.STATE. now liberal-con­ servative. H ere. N evertheless. 2). In a total Stale. and as a result. 'private business'. eliminated th e leader-principle fro m th e essence of the Prussian State. It w orked o u t an exem plary organizational interpenetration of State admin­ istratio n and local auto-adm inistration. PEOPLE precisely because it was elected. I t is tru e th a t th e Germ an State of soldiers and the civil servants offered a tenacious resistance to the appar­ ently irresistible p ro g ress o f liberal ideas. as shown above (C hapter III. As early as 1810. a legal doctrine. one should n o t m istakenly think ^ a t the State was n o t intellectually on a p ar with its advancing adversary. and in which o th er political ideals would count. particularly w ith regard to the com m unity and the State. Baron vom Stein came to realize that he 'had n o t paid sufficient attention to the difference between constitution and adm inistration'. now communal liberal. o f which the Prussian L andrat*^ is the m ost famous illustration. a form al principle that contravened the monarchical State was acknowledged fo r the com m unity. Thus the local autonom y became a sp o t by which the liberal-dem ocratic parliam entary principle broke into the m onarchical-authoritarian State of the civil servants. now national-liberei. under the cover o f 'the German law. Under the typical p retex t th at it concerned itself with the affairs of the 'apolitical' auto-adm inistration. loo. The theory of the equality o f all human associations. A fter­ w ards. as well as o th er form al and inform al principles than those of the State. MOVEMENT.

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. i t h a p p a n a d th a t th a m ayor o f a p ro v in c ia l c a p itai fo rb é d e th a arm y to m * rch alo n g c a rta io a treata in th a c ity . th a S u u . the institution of a Council o f the * L ik « w iM . with all the residues o f the custom ary electioneering.* which was decided in favour of th e town by the judgm ent of the Supreme C ourt of the G erm an Reich on 9 July 1928 (Lam m ers-Sim ons. the typically liberal divisions and dualisms between the legislative and the executive. and has as its natural complement. The new idea of leader is of a particular and decisive im portance fo r the National-Socialist State. (As shown above. T h u s. a 'purely auto-adm inistrative m atter'. a 'simple act o f piety'. 39 .'* cannot continue o r repeat itself in a o n e-p arty State. which claimed to be entirely 'apolitical'. p. 4 4 8 . u se d th e local su to -a d m in ia tra tio o aa a g ataw sy of in c u rsio n . MOVEMENT. 276). and at the local organizational level. A r c h iv [A d m in is tra tiv a A re h iv a a ]. E veryw here. to lay a wreath on the tom b of the revolutionaries of M arch 1848 (Decision of the Chief Adm inistration C ourt [OVG] of 9 July 1898).STATE. path-breaking instance of the rem oval of those artificial divisions. b) The organizational application o f the doctrine of leadership re q u ire s. The election fro m below. in th * H a p sb u rg m o n arch y . p. The legislative com petence of the Reich G overnm ent is a first.d i a r u p t i v a forças. the new elections of 12 November 1933 fo r the Reichstag can be understood only as a component of a popular consultation). Finally. * ® N or even the old voting procedures. and the election m ust be replaced by selection. form ed through a coalition after a so rt. in a negative way a t firs t th at all the methods reflecting the liberal-dem ocratic m entality in their essence m ust be discontinued. com es to an end. for a paaaaga w h ic h a lto c o n u in a a fin a illu s tr a tio n of th a m aan in g a n d ata e n c e of th a 'lagal atata*. with the help of which a m ajority. or the quarrel over flags between the State and the town at Potsdam . I. PEOPLE With the 1898 descriptive resolution of the Berlin Municipal Council. between the deliberative organs and the administrative o r managerial organs have lo st their meaning. tu rn s a m inority into a m ajority and m akes of the division a weapon to outvote and vote down the o th e r s . p a r tic u la rly th a n a tio n a litie s fig h tin g th a a u u l e n tity . xix (1 9 1 1 ). Saa V arw .

the council o f the Leader cannot be elected fro m the outside o r fro m below. and in this way. popular representation against the governm ent. and even less a pluralism . local representation against local governing body). as well as practical. lo c ^ and regional. but m ust be selected by the Leader. In order to grasp the full meaning of the concept. according. It is neither an organization o f intimidation. it keeps him in live contact with his foUowingi and with the people. In this way. Whence. and also a theoretical. which are quite necessary and indispensable in their spheres. but cannot relieve the Leader of any responsibility. PEOPLE Leader [F ührerratJ. it assists and sup-.STATE. it m ust win general acceptance and be universally recognized as a principle. with advice. and to safeguard it in its peculiarity. it is e ss e n ü d firs t o f all to distinguish it d early fro m other concepts. to immobilize its real force. Today. have been employed deliberately in o rder to make them absorb the idea of leader. Because such concepts. It stands by the side of the Leader. clear and exemplary form in the Council o f the Prussian State. In the Prussian law on the provincial council of 17 June 1933 (GroEer Senat [Fuh Senate]. They have found their initial. to distinct principles of selection that firs t of all take into account the link with the Party organization carrying State and People. Leader and council of the Leader are kinds o f form ation ju s t as simple as they are resilient in their concrete application to the m ost diverse fields of life. n o r m ust it represen t an internal dualism (that is. suggestions and opinions. 254). b u t are also ^ e a d y im pregnated by m o th e r spirit. and of the various estates. it also becomes possible to give. the idea is already tran sferred from the sphere of governm ent to that o f the adm inistration. * ^ 2. and avoid the danger of falsifications and confusions. seemingly related. p o rts him. differentiation concerning the concept o f leadership. In view of the fundamental significance of the idea of leader. control and transfer of responsibilities. the great constructive work o f the Prussian M inister President Goring. the core concept of the N ationai-Sodalist State law. far-reach in g consideration to the particular conditions and needs. MOVEMENT. It is generally known that it is characteristic o f the singlem inded liberal dem ocracy to see its ideal in the political 40 . it becomes all the m ore necessary to draw a d ear. p.

is expelled from legal life. m ust always have a content th at is normatively measurable. The anti-statal kernel of the liberal antithesis between law and politics became obvious there. MOVEMENT. is a legal obligation with a political content. another kind of duties. of the civil service. for instance. every obligation. To distinguish the com m unist organization. and ironically treated by a particularly typical representative of the Weimar system ’ as som ething 'sentim ental'. and a 'political' judgm ent contrary to a 'legal* or 'juridical' assessm ent. But it has not yet reached the scientific consciousness of m ost of the German ju rists that fo r alm ost a century. PEOPLE 'absence of leaders'.*® The allegiance of the provinces to the Reich. which needless to say. to place the N ational-Socialists and the Communists politically on a par m eant 'law'. dominated by the basic principle of security.virtually shattering effect. has been reduced to a 'simply m oral' o r 'simply political' m atter. and as a result. In that interpretation. concepts and institutions. fo r instance. a dangerous and deadly enemy of the German State. The legal State thinking. subject to verification by a judge. and which is a legal duty in the full sense of the word. under the pretext o f working out legal concepts within normativeJy predeterm ined abstractions. that. th at o rd er of ideas celebrated its trium ph. in its pronouncem ent of 25 O ctober 41 . inaccesible to the individualistic liberal legal thinking. A t the Leipzig trial of the dismissed Prussian Cabinet of the Weimar system versus the German Reich. and deprived of its legal kernel. It would be said. caiculability and m easurability.STATE. In this simple way. if it were to be a legal d u ty and juridically relevant. the allegiance o f the followers. Indeed. was destroyed in its essence with the help of such a liberal separation of law from politics. a system o f speciHc conceptual co nstructs had been at w ork to eliminate the idea of leader and th a t the lever of such concepts will be placed at the ready above all • there where they should have a politically destructive and . of the com rades of the people. Through this interpretation. and the m onopoly of the legal scientifidty is gained by quite a distinct political ideology (which is neither particularly juridical nor particularly scientific). vital to the law of the leader-S tate. tra n s ­ formed all the notions. from a German national m ovem ent m eant but a violation of 'the equality before the law'.

in the famous pronouncem ent: 'The possibility of interpreting such attacks as in­ fringem ent of duty on the p a rt o f the Province cannot fo r that m atter be excluded even when the m inister did n o t act in his official capacity but as a private citizen or p arty mem ber.STATE. the political leadership. developed into a notion antithetical to the concept of p o liticd leadership. One would lay oneself open to the accusation of being 'political' and 'unscientific'. PEOPLE 1932. this decisive concept of the law of the German federal State was indeed of little interest to the theory of the State law. It is self-understood th at even nowadays th ere are still a g re at many ways in which the word 'supervision' is used (office supervision of the civil servants. characteristic of the m otives o f decision. This is made clear in the following extract. ecclesiastic supervision. Prussia had the hegemony. in every kind of leadership. and since the concept o f political leadership eluded the mode of thinlung of liberal positivism . its sphere of validity rem ains unchallenged. which is w ord fo r w ord. which in the half a century o f liberalistic praxis. th at is to say. sentence for sentence. That was uncontested and uncontestable.s. even when it was carried o u t in the light of the then entire situation. MOVEMENT. But the examination of M inister Severing's statem ents. school supervision. a. one m ay still discover some 'supervision'. Likewise. it is necessary to draw clear distinctions between the particular spheres of validity of supervision. B ut it was n o t explicitly w ritten in the text of the constitution.}. Notwithstanding.' Another example is the concept of supervision [Aufsichtj. the Suprem e C ourt of the German Reich sought to rem ain strictly 'legal and neutral' even in this respect and to evade a ruling. were one to render justice to the tru th and the reality o f th e stru ctu re of a 42 . and to re sist the confusion which centres the concept of true leadership on the concept of supervision. and as such. B ism arck's f e ^ r a l constitution of 18 April 1871 was the constitution of a hegemonic federation. established that the b order of the required reticence was not transgressed in a manner b y which a violation o f duty by the Province against the Reich may be detected therein .o.

With the advent o f the Weimar C onstitution..a new political weapon fo r the elimination of the idea of political leadership. But the prevailing norm ativism o f the then 43 . the book by H. the trend in favour of the concept of supervision would develop fu rth e r and perfect itself. Die Reichsaufsicht (The Supervision o f the Reich] (1917) dealt with it under the aspect of Reich supervision. the Reich was left out.o . a . the needs fo r political leadership made them selves felt even m ore sharply in the practical life of the State. it has rem oved the Prussian hegemony altogether. W ith the increasing difficulties o f the internal political situation. points to the pow er 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. So the central concept of th at constitution of . and fo r which even the execution of federal orders by force was only a case of 'Reich supervision'. And it is a logical consequence of this i kind of theorizing that the last system atic w ork on the constitutional law of Bism arck's constitution. The Weimar C onstitution is a particularly typical docum ent of the bourgeois legal State. That a German scholar such as H.s. PEOPLE L .STATE. Triepel. MOVEMENT. b u t above all. and thereby has completely elim inated th at last leading element fro m what was maintained o f the federal constitutional organization. and its ideological groundw ork encloses the liberal divisions of law and politics. intellect and force. namely the lawsuit in the Suprem e Court. Reich supervision found an all the m ore extensive treatm ent and development. came to lay particular stress on this aspect.®* it made available to all the interested R eidi-disruptive forces . there were still some re strain ts against those m ethods. By the fa 9t th at this C onstitution also replaced the fo rm er Federal Council [B undesrat] by a Suprem e C ourt. which it allowed to settle federal constitu­ tional disputes. the concept of .federal State wholly and absolutely erected on a hegemonic foundation. law and force.the political p arty pluralism as much as the one-State particularism . Among the authors o f the Weimar C onstitution. Triepel. as well as those between the Reich and the Provinces by judicial procedure (Article 19). On the other hand. who had often proven his own sense of the political reality against the norm ativist d istortions of the S tate law.

local supervision. As its last w ord. its norm ative bias. which will be interpreted into all these conceiits of supervision. and even the concept of discretionary judgm ent. On the contrary. the vague notions o f such a system of supervision. p. A fter the concept of 'Reich supervision’ in the federal State law of Bism arck's constitution had been made into a suitable means fo r the norm ativist relativization o f the political leadership. the concept of supervision is linked to the introduction o f a criterion fo r this supervision. Even the 'prohibition of arb itrarin ess'. the completely norm ativized concept of 'constitutional supervision' became a reality a t the end of the Weimar system . That condition too culminated in a concept of supervision. And this concept. 44 . O ther conceptual constructs. Likewise. the execution of federal orders by force! In this way. 211). regulated in advance. The first. hence m easurable and verifiable. in opposition to the principle of political leadership. Vol. 23. are ruled by this trend. in keeping w ith the facts of the case. That is to say. the destruction of the political leader­ ship read ied the highest degree. A rchiv des öffentliches Rechts [Archive of Public Law]. 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 O ctober 1932. and in actuality a judicially verified limit. in the 'excess of judgm ent' and in the 'm isuse o f judgm ent'. at least include the object of supervision. MOVEMENT. PEOPLE constitutional science and the absence of any true theory of th e State zealously contributed to the juridical transform ation of internal politics. All the relations between the supervising and the supervised were subm itted to this predeterm ined regulation th at ignored every concrete situation. otherw ise well intended. in the phrase 'constitutional supervision' neither a subject nor an object com e to light.STATE. that is to say. had to serve as the theoretical basis o f the deciding political authority of every federal system . They too have to find the limits. Three factors characterize the elaboration and the developm ent of the concept of supervision in the legal State into a tru e counterconcept. ultima ratio"^ * of the political unity of a federal Reich. b u t only the criterion o f supervision: the constitution. In the phrase 'Reich supervision’ one still at least could recognize the Reich as the subject of the supervision. such as school supervision.

th at it was already decided and stipulated in advance. it can be no question at all of leadership and subm ission. Consequently. opposed to that of leadership ensues with the same logic from the two preceding characteristics. is established. MOVEMENT. that is.STATE. Because as soon as the criterion of supervision. only of an 'objective' interpretation of the norm and of the 'im partial' delimitation of jurisdiction. and what the supervised m ust allow himself to expect. and consequently. one may assum e fro m the fiction. b u t only to an allegedly objective norm ative content verifiable by an onlooking third party. It becomes fu rth e r apparent that even the supervisor is subject to the same norm . as well. the term s 'su p er­ vising guidance' are w rong. is characteristic of an allegedly purely 'judicial' thinking). The second characteristic feature in the form ation 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. what the 'in ter­ vention* (this word. it is unavoidable that only an equally 'objective' onlooking third p a rty . from the just-m entioned norm ativism of the theory of supervision. an independent judicial instance. it becomes apparent that in reality he m ust above all be subjected not to the supervising instance o r to a political leader. It ensues easily. so loaded with political polemic. guided by supervision. supposedly calculable and verifiable. but on both sides. PEOPLE has the politicaJ p u rp o rt to impose the fiction of the calcul­ able measurability 'on the basis of previous standardization and the regularization of all m utual relations of su p er­ vision. with logical consistency. In that case. and m ust be replaced by 'the objective validity of n o rm s' and 'the application of norm s'. If it is a measurable norm and both parties to the relation of supervision are on the same footing in their subm ission to the norm . 45 . Such a concept of supervision inevitably requires a Judicial instance and the settlem ent by trial o f all differences between the object o f supervision and the supervisor. should sit in judgm ent over both parties as the organ of the objective norm . can perm it itself. Hence the subject of supervision may any time refer to the norm as the sole authoritative criterion against the supervision. The third peculiarity of this concept of supervision.

3. tran sfo rm the adm inistrative tribunals for the adjudication o f disputes related to the law of communal supervision into authorities fo r the supervision of the State supervision.STATE. we m ust be wary of obscuring and weakening a concept. when taken to their logical conclusion. In a cru d al polit­ ical case. The domination of India o r Egypt by the English may be justffied on many grounds. either. normalization and decision by trial mean only a com m itm ent of the leader to the benefit of the disobedient. The adm inistrative criminsd co u rts o f the civil service law. passes off in hum anitarian garb as 'guardianship* and 'education'. A decision reached by an independent judge means only the subm ission of leader and follow er to a politically irresponsible non-leader. but it is som ething altogether different from a leadership o f the Indians o r of the Egyptians by the English. perhaps necessary and salutary. expressions of leadership in our sense. are transform ed into m ere protective m echanisms of the law of adminis­ trativ e supervision. to dictate. The equalization of the parties only m eans the equalization o f the enemy of the State and People with the com rades of the State and People. specifically German and N ational-Sodalist by assimilation 46 . To lead is n o t to command. The Suprem e o r the Constitutional C o u rts have been transform ed into an organ fo r the political supervision of the governm ent confined to constitutional supervision. The exploitation of the form er German colonies by the so-called m andatary pow ers. However. The ideas of protection and security. PEOPLE Ultimately. A trial judge is n o t a political leader and the m ethods o f today’s legal controversy are no m odel fo r the creation o f a leader-State. The resu lt is always administration o f the law instead o f political leadership. from all these superim posed and extremely varied aspects of the concept of supervision. MOVEMENT. to govern bureaucratically fro m the centre. there appears a judicial instance which has the last word through m ore or less judicial proceedings. in conform ity w ith A rtid e 22 of the Covenant of the League of Nations. or any other kind o f rule yo u like. even of feur and reasonable dom inion and order th a t are no leadership [Führung]. There are m any fo rm s of dominion and order. essentially necessary to the liberal concept of the legal State. but is n o t leadership. N or are m ost cases of dictatorship. which should be strict drum head courts m artial.

because it gives the m ore profound explanation of the internal p ressu re under which that rule stood: to norm alize itself hastily inside and outside through the ever renewed m ilitary successes. This concept of leadership comes wholly from the concrete.STATE."^’ As 'g u b e rn a to r. governm ent.’ * It justified the im peratorial statu re of that Italian soldier who seized the State o f the F rench nation. those of the Romance and Anglo-Saxon peoples. A famous passage in Plato's Statesman draws various com parisons w orth considering to describe the statesm an. The Rom an-Catholic Church has given to its power of domination over its faithful the image of a shep­ herd and flock. and at the same time. MOVEMENT. and has become the w ord fo r 'governm ent' [Regierung]. The sto ry of this 'g u b ern ato r' contains a good illustration of the way a graphic com parison may become a technical legal concept. which it cast into an idea o f its theo­ logical dogma. none of these images com es upon what should be understood by political leadership in the essentially German sense of the word. Papal crowning. T urn b y turn. he is compared with a physician. Essential in this image is th at the shepherd remains absolutely transcendent to the flock. ultim ately to retain the image of the steersm an. m arriage to a H apsburg princess) and institutionalizations (a new nobility). through recu rren t legitim ations (plebiscites. A nother characteristic image is that o f h orse and horsem an. PEOPLE with foreign categories. governo. It is 47 . a shepherd and a steersm an. substantive thinking of the National-Socialist Movement. and it seems to me even m ore correct from the viewpoint of the legal science to become. There are various images and similes that should make apparent the relationship between dom inator and dom inated. governing and governed. or as the 'gubernium ' of the form er H apsburg monarchy. such as gouvernem ent. ’ * In essence.'’ * it has entered all the languages influenced by Latin. which the great F rench historian Hippolyte Taine used fo r N apoleon's rule over the French peo p le. aware of the factual meaning of these various designations rath er than to speak with the help o f certain conceptual clichés about a 'special' pow er relation which unqestionably finds its limits both in the predeterm ined norm and in 'private life'. That is not o ur concept of 'leadership'. in a splendid m anner.

united itself. are based upon ethnic identity. is thus the m ost unavoidable [unumgänglichste] prem ise and foundation of the political leadership o f the German People. MOVEMENT. The reliability and caiculability are not inherent in norm alization b u t in the presupposedly norm al situation. PEOPLE sym ptom atic that every image fails entirely and every fo r­ tuitous image is m ore of. and their m utual loyalty. It alone justifies the difference from any rule of an alicntran sm iu ed will. the German National-Socialist State cannot exist. F o r that reason and as a positive requirem ent. and in the distinguished specialized re p o rts. now haughtily critical. a picture o r simile than the very leadership in question. with all its institutions. how ever intelligent and advantageous it m ight be. it also implies an absolute ethnic identity between leader and following. as fo r instance. Again. 4. that of H. The ethnic identity of the German people. 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. That was no m ere abstract postulate when at the C ongress of the N ational-Socialist German Ju rists at Leipzig in 1933. On the whole. it would be immediately handed over to its liberal o r M arxist enemies. in the riveting addresses of the Leader of the German Legal F ront. D r. Neither does it come from baroque allegories and representations nor from a Cartesian idée générale. W ithout the principle of ethnic identity. The fiction of the norm ativist com m it­ m ent o f the judge to a law has nowadays become th eo ret­ ically and practically unsustainable in many essential spheres of the life of legal practice. ’ ® Il is a concept of the immediately present and of a real presence. Nicolai. and its legal life would be unimaginable. Hans F rank. 48 . Both the continuous and infallible contact between leader and following. O ur concept is neither necessarily n or appropriately an interm ediary image or a representative simile. The legal scientists of the new German jurisprudence need in particular to become aware of the system atic force of this concept of ethnic identity that pervades all the judicial deliberations. now obsequiously assimilationist. Only ethnic identity can prevent the power of the leader from becoming tyrannical and arbitrary.STATE. the idea of ra<» was time and again highlighted in the L eader's forceful closing speech.

but situation-related (such as 'public order and safety ’.s . 'prohibition of abuse'. and also con­ cepts such as 'due discretion’. Die Peucht in die Generalklauseln [Escape into General C au ses]. 'arbitrariness'. Even 'effective' and 'im m ediate possession' may be recognized as vague concepts n o t by som e Talm udist but by a highly regarded German law p ro fesso r as Philipp Heck of Tubingen. Nobody wants to maintain. from all sides. 'proportionality'. vague and unsteady whenever in an oscillating situation they are seized by m inds and interests differently conditioned. 'im portant m otive'. produces a g reat picture of the enorm ous spread of these clauses. ’ * Such general clauses had in the long ru n become unavoidable and indispensable. B ut I do n o t believe that the big problem of the general clauses will go away with it. especially when considering the available literature of all the branches of jurisprudence. 'd isp ro p o r­ tionate disadvantage'. uncertain. even the crim inal law.STATE. 'unreasonable harshness'. MOVEMENT. 'prohibition of arbitrariness' are so incalculable in case of conflict that they them selves may tu rn into the w orst arbitrariness. A recently published work (1933) by Law Professor Hedemann of Jena.o . 'reasonableness'. 'particular plight'. In earnest term s. 49 . he w arns o f the danger of a complete dissolution of the law into norm atively vague and incalculable generalities.).these are only a few examples of the dissolution of the legalistic norm ativism . PEOPLE ’ The so-called general cJaiises and the vague concepts have invàded all the spheres of legal life. 'prevailing interests'. Looked at from that point of view. 'hardship'. n o t n o rm . and in countless circum locutions: 'faith and fidelity'. 'claim fo r paym ent of interest' . 'endan­ gering'.” Particularly all our adm inistrative law is pervaded by such vague concepts. They wholly determ ined the overall picture of our adm inistration of justice regarding b oth private and public law. 'good m anners'. The disintegration and vagueness of all the concepts seem to me by far m ore advanced than Hedemann presents it. we have reached the point where the epistemological question is raised with all the practical seriousness: to w hat 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 m ade the experience that every w ord and every concept soon become contentious. 'prohibition of arbitrariness’. there are only 'vague' legal concepts nowadays. a . In the theory and practice o f law.

Never has the question 'q u is judicabit'*^ had any such crucial im portance as today.® ' That is valid fo r the career civil service. The fiction and the illusion of a law that would cover all the cases and all the situations m atching the facts and subsum ing them in advance cannot be revived. because the 'personality' was referred to only in general term s. that it would be possible to re tu rn to the ancient faith in a safely calculable legal norm alization of all con­ ceivable cases. W och. even though a mechanical and automatic com m itm ent of the judge to predeterm ined regularizations is n o t possible. It did n o t mean the concrete Germ an people but only 'p e rso n s'. interpretation and application of the German law. with all their facts m atching wholly in advance. The road forw ard seems to lead away from the shore and ever fa rth er from th e firm land of legal safety and constraints of the law. There is only one road. Out of the positive necessities of the scientific legal w ork. in order to avoid distinguishing between the ethnically identical and the aliens. and this is inherent in the com m itm ent to the people and the ethnical identity of every man en tru sted with the exposition. Thus. The tru e substance of 'personality' m ust be secured with all firm ness. which at the same time is also the land of the judge’s independence. N either in the liberal-dem ocratic system were ethical and m oral require­ m ents m issing. serving in this way the liberal individualism. The National-Socialist State has been treading it with great firm ness.’ ^® If an independent adm inistration of justice m ust continue to exist. the whole application of the laws stands between Scylla and Q iarybdis. The road back to a form alistic legal supersti­ tion recognized as m eaningless and long outdated historically is not w orth considering either. as much as for the legal profession essentially 50 . 'A re tu rn to a strict positivism is o u t of the question’. and the Secretary of State FreisJer has given it the clearest form ulation in the call: 'no refo rm of justice but reform of j u r is ts '. 1933. says Philipp Heck (Jur. MOVEMENT.'^* The idea of a complete codification o r regularization is hardly feasable nowadays. and he is right.. then it all depends precisely on the breed and type o f our judges and civil servants. PEOPLE though. as concerned the judge's 'creative personal­ ity '. 1449). p.STATE. the idea of the ethnic identity will pervade and dom inate sül o u r public law . But that remained em pty declamation.

Today we have become more receptive. a simple 'concretization of ab stract norm s'. to the deepest and m ost instinctive stirrin g s of his em otions. as well as fo r all the cases' in which comrades of the people become active in the management o f public affairs. As long as one could be confident th at the judge and even the adm inistrative official were . if I may say so. 'la bouche qui prononce les paroles de la h i '.only a function o f the norm ativist legality. we see even the diversity of the m ouths. of understanding w ords correctly. in the tiniest fibre of his brain. inside. PEOPLE interested in the creation and the shaping of the law.®* F o r our present-day susceptibility. man stands in the reality of this belongingness of people and race. of listening to state­ m ents intently. the adm inistra­ tion of justice and in jurisprudence. M ontesquieu's fam ous sentence that the judge is 'only the m outh th at u tte rs the w ords of the law'. We not only feel but also know fro m the m ost rig o r­ ous scientific insight that all justice is the law o f a certain people. in every crucial train of thought. and of weighing im pressions about people and things pro p erly joins in the law -creating community of kith and kin in his own m odest way and belongs to it existentially. only the familiar 'law -applying autom aton'. He is n o t objective whoever with a clear objective conscience believes th at he can be so because he has exerted himself hard enough to be objective. MOVEMENT. An alien w ants to behave critically and also to apply himself shrewdly. in the existential condition o f his own kind. this will guarantee a fruitful collaboration in the constitution of different new 'councils o f leaders'. Above all. filled with organic. and likewise. We hear how these 51 . he thinks and understands differently because he is differently disposed.STATE. and remains. which u tte r the ostensibly same w ords and sentences. biological and ethnic differences. this sentence already points to the sphere o f the living human being. w ants to read books and to write l^ o k s . Down. That is the objective reality o f 'objectiv­ ity'. was even in the eighteenth century in terp reted in a mechanical way. * * It is an epistemological tru th th at only whoever is capable of seeing the facts accurately. 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.

th a t ’creativity’ would be b u t anarchy and an especially noxious source o f political dangers. MOVEMENT. all the independence of the judges. We know th at the same vocable in the m ouths of different peoples not only sounds differently b u t also means som ething else in th o u g h t and fact. the civil service and the judge's independence. and th at in m atters o f legal interpretation and in the recording o f the facts of the case. 52 .STATE. Nevertheless. in view o f the inseparable connection o f the commitment to the law. rem ote effects. and above all. W here else can it re st b u t in ourselves. 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. PEOPLE sam e w ords are ’pronounced’ very differently. in particular. small deflec­ tions have quite astonishing. and in our kin. m ore reliable and m ore em bued with life than the deceptive attachm ent to the d isto rted letter of thousands of paragraphs o f the law. Even here. We seek a commitment which is deeper. we dem and their com m itm ent w ithout which all the guarantees and freedom s. Hence o u t of necessity. all the questions and answers flow into the exigency of an ethnic identity w ithout which a total leader-State could n o t stand its g ro u n d a single day.

THE QUESTION O F LEGALITV (1 9 5 0 ) .

.

and which is o f particular in terest to us. and in jurisprudence. who died in 1932. This form ulation by the O ratorian Father should serve as an opportunity to reflect on some historical. a Critique of the Notion of the Sovereignty o f the Law. has left behind the voluminous w ork of a life­ time.* F ather Laberthonnière critically examines the wide­ spread notions of the suprem acy of the law prevailing in m oral theology. namely. To this. another book of his has been added to them. 'La maxime: c'est la loi. which is being edited by his friend Louis Canet. * 0 « u v r « « d t L *b e rth o n n iirt. V r in . namely that 'not men but the law' m ust rule. Quite recently. p u b l i s h e d u n d e r t h e c s r e o f L o u ie C an e t. S ic u t m in i s t r a t o r . 55 . 1 9 4 7 . This connection made between law and war is in fact surprising and sounds quite radical. ne diffère en rien au fond de la maxime: c'est la g uerre' [the saying: "it is the law" does not differ in any way from the saying.M a d e le in e d ’H e n d e c o u rt. philosophy. I n tr o ­ d u c tio n a n d n o te e b y M a r ie . juridical and sociological experiences of the last few decades. the learned O ratorian opposes the assertion that men stand directly behind every earthly law and th at they use the law as a means of their power. "it is the war"]. P a r i s . Between 1933 and 1948. C riliqu e d a ¡a notion d a ao u v arain ati da ¡a Joj. F ather L aberthonnière goes very far. six im pressive volumes have been published. The knowledge on which it is based can be grasped only as the b itte r fru it of the experiences of the civil war. and which go back to and reach their acme in a w ell-know n saying of A rtisto tles'.The Reverend O ratorian Father Laberthonnière. In his criticism. L i b r a r ie p h ilo s o p h iq u e J . m oral. 6 P la c e d e la S o rb o n n e .

and partly. The m ajority of the d v il servants feared no harm 56 . Many h ig h er. the product of the higher civil service.and low er-ranking civil servants had sym pathized with Hitler and his m ovem ent fro m before 1933. On the other hand. the w ell-earned rights of the d v il servants and the stro n g position of the higher. The German civil service. and an influential higher. they rested on the national w atchw ords dis­ seminated by Hitler.THE QUESTION OF LEGALITY I Why did the German civil service follow H itler? The problem of culpability need not be stirred anew nor other attem pts at exculpation be made by raising this question. Every m otoriza­ tion of the legislative procedure. had attained an astonishingly high p oint in the last years of the W eimar C onstitution. 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. had a twofold foundation: the traditional German State of the civil service with its well earned rights. namely. feared no harm from Hitler to their overall social and economic existence. This overall existence. thei m inisterial bureaucracy. but rather with the overall sociological situation of a broad circle of people. The m otives of the sym pathizers were num erous and diverse. The legislation was 'm otorized' through simplifications and p red p itatio n s. since his big electoral success of 1930. however. on status and class in terests. Both. We are n o t dealing here with individual cases. Through thé practice of decrees. in virtue of A rtid e 48 of the C onstitution. m eant a power increase fo r the bureaux in which the decrees were worked out. m inisterial bureaucracy. the higher m inisterial bureaucracy had become legislative. m ore exactly. m inisterial bureaucracy. th a t is. The decree had ousted the law. th ere is in particular the m atter of a leading and com m and­ ing layer. however. and the h ig h er. Partly.and highest-ranking civil servants. The W eimar C onstitution had explicitly guaranteed the wellearned rig h ts of the d v il servants. within this circle which counts hundreds of thousand people. in particular. in general.

and equally so for the foreign governm ents which continued to maintain their diplomatic relations w ithout considering it necessary to proceed to a new recognition. Likewise. His eulogies o f the German civil service in his book M y Struggle. Only the feeble hope was left th at perhaps the Reich President Hindenburg m ight still be in the position to dism iss Hitler and appoint another Reich 57 . the program m e fo r a resto ration of the Germ an career d v il service and the organization of the NS association of the civil servants. in particular the fam ous oath o f legality at the Scheringer trial in 1930. The factual and sweeping legalizing effect of th at law o f em powerm ent was therefore so com prehensive because H itler and his following were confirmed in their effective possession of pow er by a constitutional am endm ent voted by Parliament. which would have been necessary in a case of illegality. Many believed his repeated assurances and even held him fo r the rescuer of the principles of the traditional Germ an career civil service. all served that aim. Likewise. Such a governm ent materialized neither on Germ an soil n o r as governm ent in em igration. in the notion of legality one finds the true answer to our question: why did the German civil service follow H itler? Because in the eyes of the Germ an civil service H itler's seizure of pow er was n o t illegal. H itler too did everything to maintain this unsuspectingness. At that time only very few suspected the danger which a totalitarian p a rty system m ust rep resen t fo r the traditional German State of Uie civil service. both fo r the events of F ebruary and M arch 1933 and fo r ail the actions to come. All of them feared an open civil w ar and saw in H itler's p ro testations o f legality a shield against the civil w ar. though. The so-called em powerm ent law of 24 M arch 1933 rem oved all the m is­ givings and had the effect of a great general and sweeping legislation. N or was it so fo r the large m ajority of the Germ an people. according to international law. and in fact.THE QUESTION O F LEGALITY from Hitler either to their well-earned rights o r to the position of p o w e r'o f the Germ an civil service as a whole. Thus every legal way to a cancellation o f the seizure of power was blocked. retrospectively. Decisive. there was no Germ an gove. ’ A lready at th at time the issue o f legality had turned up to be the key to the problem of statal pow er in Germany. were the solemn d edarations of legality.‘nm ent in opposition to H itler.

in accordance with the traditional principles of the career d v il service. B ut where the fear of a civil war had been such a stro n g m otive to subm it to Hitler. under detailed definitions and guarantees of the legal position of th e German d v il servants. 247) acknowledged th at in time of war H itler had the rig h t to interfere in the w ell-earned rig h ts of the d v il servants (as if in such a total w ar and in such a system no other demands fo r rights had 58 . Thereupon. I. The law of 26 January 1937 concerning the German civil servants concealed its totalitarian poison. It has been established in the judgm ent of the N urem ­ berg International M ilitary Tribunal of 1 O ctober 1947 that 'in 1934. it follows fo r every positive idea of legality that H itler's pow er was by fa r m ore than ju st legal in itself. the essential feature of which rested in the fact that if the ruling represented a m otorized law. a fit of the need fo r legitim a­ tion suddenly seized H itler himself. the last rem nants of a m oral resistance on the p a rt of the Germ an d v il service vanished as a re su lt of the w ar. adm inistration and justice functioned with new simplifications and p re d p ita tio n s. because the concentration of all statal pow er in H itler's hands reached its m aximum degree a t the tim e. b u t also as a kind o f dem ocratic legitimacy. the 'disposition' [A nordnung] was a m otorized ruling. the whole pow er was in H itler's hands'. it was revealed in two strange explanations. because everybody knew that the attem pt to rem ove Hitler would have unleashed an even m ore dangerous civil war. the hope of H itler's dism issal by H indenburg did not make much sense. a new concept came into being in the sphere of food supply: the 'disposition' [Anordnimg]. A darification of the Reichstag of 26 A pril 1942 (RGB!. S tarting w ith th e end o f A u gust 1939. in fact n o t only in the sense o f his own positivistically absolute legality. it was also the source of all positive le g ^ ty . p . This statem ent is of the g re atest im portance for our problem . A t that time.THE QUESTION OF LEGALITY chancellor. as command machines. Legislation.® particularly in the general reservation of §71 on p arty-politics. because of the self-understood invocation o f the necessities of a total w ar. F irstly . In the last years of the w ar. always unrestrained. The general m otoriza­ tion is characteristic o f thè unmixed functionalism of this m achinery. and secondly. Oddly enough in 1942.

b u t about the problem of the functioning of a regim e as a whole. The legality in question here does n o t mean a m erely external. There lies the key to an understanding of H itler’s regim e. and this w ord lex has an altogether different content at different times. It is a highly topical sociological problem which deserves fully to be treated with all objectivity. it tackles a wholly im portant question of m odern developm ent. w hether in a conservative or a revolutionary sense. in different constitutions and fo r different organizational form s of legislation and adm inistration of justice. purely form al. An explanation of 10 May 1943 by Hitler himself renewed the em powerm ent law of 24 M arch 1933. either. 59 . Nowadays. and in different countries. purely juridical accompaniment. In a m odern system . B oth explanations are simply incredible in the confusion of their inner co n tra­ dictions. They prove all the m ore clearly th at ultim ately H itler himself was interested in a certain legitim ation even m ore than the machine functioning according to the concept o f the p o sitivist law. at least to the extent it deals with the specifically statal aspect of his pow er. It resides in the fact th at the word 'legality' acquires a distinctive. and which obeyed him as the holder of S tate power and the only source of legality. In order to do ju st that we m ust become aware of an ex trao rd in ary difficulty. grasp the history o f the Germ an civil service since 1918. thoroughly organized State entity. II O ur analysis keeps running into the notion of legality which lies at the core of the problem . Hence we m ust seek to some extent to overcom e the alm ost Babylonian confusion of speech th at prevails here. It does n o t refer to the question of law and justice under the aspect of their contents. Here we are talking not of the lawfulness or the unlawfulness of countless isolated o rd ers. the w ords 'legal' and 'legality' can mean everything that the w ord 'lex' somehow conveys. an industrialized. It is also to be distinguished from legitimacy. that is to say. Beyond that. It is only from this point of view that one can.THE QUESTION OP LEGALITY been granted b u t only those of the civil servants). ra th e r specific meaning in a m odern.

this sentence became a familiar saying in France and in the F rench language.THB QUESTION OF LEGALITY thoroughly organized system . It would be hard to make our reasoning clear to an Englishman or an American w ithout any sociological training. Of course. On the contrary. the routine and the habits of departm ents. I t can hardly be translated into English. In the Anglo-Saxon usage. the m o st d e a n -c u t form ulations of a purely form alist-functional legality came into being as a consequence. endowed with a division of labour and highly specialized. If a sociologist like Max W eber says: 'The bureaucracy is our fate’. Lamennais had with all p re d sio n form ulated the antithesis between legality and legitimacy. we m u st add: 'legality is the w orking mode of this bureaucracy'. the m onopoly of the adm inistration of public tasks. which is the basis of our analysis. the concern to retain this kind of life and th e need of a 'cover' against an account-dem anding authority: all that belongs to the complex of legality from a bureaucraticfunctionlist point of view. one can hardly grasp the transform ation of the law into the working m ode of an operating public body and p erhaps would not understand the change in the meaning of th e w ord 'legal' at all. b u t the sharpest antithesis between lawiful and legal. the somewhat calculable functioning. Immediately after 1848. As early as 1829. From 60 . In those countries in which the State bureaucracy has n o t. in opposition to substantive law and historical legitim ation. Even before the 1848 revolution. legality m eans a specific w orking and functioning m ethod of the public body. There. the statal adm inistrative machine has since 1799 survived half a dozen regim e changes. which may be explained only by the fact th at the English o f the nineteenth century had distanced them selves m ore than the F rench fro m the line of fire of the European d v il war. the homeland of State legislation and of the great statal codifications. o r n o t yet. the w ord 'legal' has the sam e sense as 'lawful' o r 'juridical'. cannot be expressed in English. In no time. p o u r rentrer dans le droit). The m anner in which affairs are decided. the then P resident Louis Napoleon issued p ro d am atio n s in which ' he urged. in F rance. would the w ord be preached: legality kills (la légalité tue). 'to gel out of legality in order to attain the law' (d e so rtir de la légalité. lawful and politically possible and habitual. there are antitheses between lawful and m oral.

could em erge with such clarity only in France. F ather Laberthonnière. Likewise. it becomes clear why it was in F rance th at the separation of law and legality had been firs t and m ost sharply felt and had been form ulated m ost pregnantly. the only apparent form of legitimacy. F o r centuries. Legality would become. as Max W eber said. In this way. To th at may 61 . until the collapse o f 1918. by a thick veil of a double tradition. there can be no doubt that the G erm ans are in a particularly high degree a people of civil servants with a cast of mind common to a statal civil service. Ill It is said about the Germ ans that they are a people that are touching by their need fo r legality. only the statal legality remained as the sole lawful foundation of State functioning. In Germany. in contra­ distinction to 'real co untry' [pays réel]. w ith which we started. the Germ an State had been a State of civil servants. She has g o t a strong statal centralist tradition b u t also an im portant free advocateship and m agistracy which do n o t regard them ­ selves m erely as p a rt of the State adm inistration of justice. They have presum ably shown a special ability to combine subm is­ sion to the powers at the time with an inner sense of freedom . the opposition in France has been speaking of a 'legal country' [pays légal] which it represents. namely that of the monarchically dynastic legitim acy and the federalist decentralization. Finally. The econom ic-industrial developm ent went the way of an increasing centralization. on the other hand. after its m ost m assive effects had been taken into consideration. the phrases of the Rev. F or the rest. France is the country of legists. W hether L uther o r K ant or anybody else should be held responsible for it need n o t be looked into here. They have also and often been reproached th a t they were incapable of offering any right resistance to the pow ers th at be. one became critically aware of the antithesis much later.THE QUESTION OF LEGALITY around 1900.The dynastic legitimacy fell in Novem ber 1918. Nevertheless. the purely statal functionalism was hidden despite the prevailing legal positivism .

a topos of the juridical m anuals and com m entaries. B ut the transform ation of law into legality as a m ere functioning mode of the w ork of the statal a d i ^ istratio n and the corresponding relationship with the individual human beings who are dependent on such an adm inistration is no longer a specifically Germ an problem . the g reat German sociologist. A t the same time. Still nowadays. The frightful image which results from a complete functionalization of mankind has been the subject of an im pressive recent article in the journal Universitas in Tübingen. at the beginning o f Decem ber 1949. The German Suprem e C ourt had said th at after the collapse of November 1918.THE QUESTION OF LEGALITY be added a stro n g er sense of a technicized discipline for specialization and the delim itation of responsibilities and for the ideal functioning w ithout a hitch. an interesting kind of force which was not discovered only in Germany and only in 1933. B ut that is a platitude. a transform ation which until recently has been extolled to us as a m arvellous scientific and cultural p ro ­ g ress. We have already quoted his 62 . with regard to the then w orkers' and soldiers' councils. In the h isto ry of philosophy. the English delegate at the UNO explained w ith reference to the recognition o f Q iina's new com m unist governm ent that recognition according to international law is to be based only on factual reality. w ritten by its publisher Serge Maiwald. The rightfulness of the genesis is no characteristic trait of the pow er of a State. But already m ore than th irty years before it. had made a diagnosis and a p ro g ­ nosis that proved to be co rrect. Perhaps. it is an aspect o f the evolution of the industrialtechnical age. it belongs to the transform ation of substantive thinking into functional thinking. Max W eber. Everyw here rules the juridical positivism and th at m eans the acceptance o f the sentence th at the law will be set by whom ever simply asserts himself de facto. Sociologically speaking. Juridical positivism is but the transform ation of law into a setting of settings. It is unavoidable as soon as a political com m unity distances itself from the Church. it is the acceptance of the 'norm ative force o f the factual'. A State macidne which functions effectively is in itself the carrier of the State pow er and the source o f all positive law. This transform ation of law into legality is a conse­ quence o f positivism .

That becomes even clearer when we say 'civil war is civil w ar'. pp. As another illustration of his marvellous prognosis we quote from his posthum ous work Econom y and Society (1921. whereas for them there is only one kind of historical legitimacy. F o r them . entitled 'Left-W ing Communism . and be devoid of any sacred content. while shuddering intensely. Neither was th at a Germ an invention. Renowned philosophers and w riters of Leninism and Stalinism have made these theses of Lenin's the object of their exegeses with the result th at all legality becomes a tactical tool. these sentences of Max W eber may not be easily understood. that legimacy justifies every m easure and every legal and illegal te rro r. Then. special. but even so they are not an oracle b u t a sociological prognosis. 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. the w ords o f F ather L aberthonniire th at the maxim 'law is law' basically m eans the same thing as 'w ar is war*. it is the unavoidable fate in all circum stances and as a consequence of the technical and economic develop­ m ent that each law in force will expand as a rational tech­ nical machine.THE QUESTION OF LEGALITY w ords about bureaucracy as fate.'^ That is it. Lenin says: 'B ut revolutionaries who are incapable of combining illegal form s of struggle with e v ery [the emphasis is Lenin's] form of legal struggle are p o o r revolutionaries indeed. 511-512): 'W hatever form law and legal practice might assume under these influences. W ith g reat sadness Father Laberthonnifere re ­ m inds us of the long row s of revolutionary tribunals. th at of the com m unist rev o ­ lution. chambers and instances.'® True. this fate may be concealed by the ability to conform to the existing law on general grounds and in many ways. capable o f being adjusted any time. It was Lenin who proclaimed it with full awareness and sharpness. The transform ation of law into legality was directly followed by the transform ation of legality into a weapon of civil war. extraordinary. His paper of 1920.An Infantile D isorder' is such a confirm ing docum ent th at any discussion of the problem of legality becomes anachronistic unless its words are taken into consideration. Adm ittedly. people's. W ith this observation we have reached our point of departure. but in reality it cannot be deflected. we hear his 63 .

64 . I compare only the judges.THE gUBSTION OF LEGALITY amazing statem ent: I do n o t compare the victims.

I t w ill a p p e a r in th e a b b r e v ia te d form . in th e r e s t o f th e te x t.r e d flag s. th e o n ly r e s e r v a tio n s b e in g th o s e th a t c o n c e rn e d th e i n s t it u t io n s of th e tw o fe d e r a l c h a m b e rs .w h i te . se c tio n 3 p r o v id e d t h a t th e la w s e n a c te d by th e G o v e rn m e n t w e re to b e d r a f te d by th e C h a n c e llo r a n d w e re to com e in to e ffe c t o n th e d a y a fte r t h e i r p u b lic a tio n i n th e O fficia l G a ze tte o f th e R e ic h . 2 . 'fo rc e '.a n d . a s fo llo w s. A s th e r e w aa no q u e s tio n of e n a b lin g o r d is a b lin g a n y o n e . A s fo r th e Law p r o p e r . a n d e v e n tu a lly of B is m a rc k 's n e w G e rm a n E m p ire h a d b e e n b la c k .g o ld . s e c tio n s 2 a n d 4 s ta te d th a t in i t s le g is la tio n . b u t of s u r r e n d e r i n g th e p o w e r o f m ak in g la w 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.a n d . fin a lly .nemy w a s a ll th e m o re n e c e s s a r y a s C a rl S c h m itt h a d b e e n k n o w n aa a n a d v o cate o f th e s u p p r e s s io n of b o th th e C o m m u n ist a n d th e N atio n al S o c ia list m o v e m e n ts a n d t h e i r a ffilia te s . T h e N a tio n a l S o c ia list G e rm a n W o r k e r s ' P a rty c o n s titu te s th e o n ly p o litic a l p a rty in G e rm a n y . haa th e w o r d s 'm ig h t'.w h ite . of th e R e ic h M in is te r of th e In te r io r a n d th e R e ic h M i n i s t e r of J u s tic e . RGBl. a c c o rd in g to o th e r r e g u la tio n s .w h i te . a n d a ls o to con­ c lu d e tr e a tie s w ith fo re ig n s ta te s . a n d t h e H a n s e a tic w h i t e .r e d w i t h th a R e ic h 's c o lo u rs in th e in s id e u p p e r r ig h t a n g le . th e ro o t o f th e G e rm a n te r m . 'M acht'. i t h a s b e e n th o u g h t m o re c o r re c t to t r a n s ­ la te 'B rm Schtigung b y 'e m p o w erm en t* th ro u g h o u t. a c o m b in a tio n of th e P r u s s ia n b la c k . u n d e r th e s ig n a tu r e s of th e R eich C h a n c e llo r. '1 . u n le s s th e a c tio n ia s u b je c t to a g re a te r p e n a lity . B e a id e s . A r tic le 3 o f th e W e im a r C o n s titu tio n la id d o w n th a t th e c o lo u rs of th e R eich w e r e b la c k . W h o e v e r u n d e r ta k e s to m a in ta in th e o r­ g a n iz a tio n a l s t r u c tu r e of a n o th e r p o litic a l p a r ty o r to fo rm a n e w p o litic a l p a rty w i l l b e p u n is h e d w ith p e n a l s e r ­ v itu d e u p to t h r e e y e a r s o r w ith im p r is o n m e n t u p to th r e e y e a r s .r e d .1 8 4 9 . c o n ta in e d o n ly tw o a r tic le s . T h e law e n a c te d b y th e G e rm a n G o v e rn m e n t. a s E n g lis h e q u iv a le n ts . 65 . th is law is ro u tin e ly tr a n s la t e d a s th e 'B n a b lin g L a w '.r e d .. T h is q u a lific a tio n of th e m o r u l e. B la c k -re d -g o ld w e r e th e c o lo u rs flo w n b y th e lib e r a l s t u d e n t m o v e m e n t in th e y e a rs 1 8 4 8 .NOTES In th e B n g lis h -la n g u a g e l i t e r a t u r e . 'p o w e r '. i t c o n ta in e d f iv e se c tio n a : 1 a n d S g a v e th e fe d e ra l g o v e rn m e n t t h e p o w e r to e n a c t la w s for fo u r y e a r s w ith o u t th e c o o p e ra tio n of t h e P a rlia m e n t (R e ic h sta g ). a n d th e m e rc a n ­ t i l e flag w a s b l a c k . t h s G o v e rn m e n t h a d th e p o w e r to d e v ia te fro m th e C o n s titu tio n .' T h e R e ic h g e s e tz b ia tt w a s th e O ffic ia l G a ze tte o f th e R e ic h . w h e re a s th o s e o f t h e N o rth G e rm a n ic C onfed­ e r a tio n .

o r p lo t­ te d th e m u rd e r of a ju d g e . i t w aa a R eich G o v e rn m e n t law w h ic h p ro ­ m u lg a te d th e d e a th p e n a lty o r fo rce d la b o u r for fifte e n y e a rs o r in p e r p e tu ity . a n a s s e s s o r. b u t s h u n n e d r e fe r ­ e n d a . B e sid e s t h e law on p le b is c ite s a n d th a t on th e re c o n s titu tio n o f p o litic a l p a r ti e s (se e n o te 4 a b o v e). by w h ic h h e w o u ld h a v e s u r r e n d e r e d th e d e c isio n to th e p e o p le a n d so d e p r iv e d h im s e lf o f c o n tro l. u n d e r ta k e n b y th e G o v e rn m e n t. as w e ll as to w h o m e v e r in s id e th e c o u n try s y m p a th iz e d w ith a h ig h ly tre a s o n o u s a c t c o m m itte d a b ro a d . th e R e ic h G o v e rn m e n t. th a t is. T he G e rm a n te r m fo r p a r lia m e n t o r n a tio n a l a sse m b ly h a s b e e n le ft u n tr a n s la te d i n b o th te x ts . a ssu m e d th e r ig h t to d e m a n d th e a p p ro v a l of th e p e o p le fo r m e a s u re s . M o re o v e r. la w s o r c h a n g e s in th e C o n s titu tio n . By th e la w on p o p u la r c o n s u lta tio n . o r a p ro s e c u to r. a s i m il a r se n te n c e w a s to b e m e te d to w h o m e v e r c o m p ile d a n d d is s e m in a te d a n y d o c u m e n t fa ls e ly ju s tif y in g h ig h -tr e a s o n a c ts . a ll th o se w ho a tte m p te d to in tro d u c e a n d d is s e m in a te d o c u m e n ts o f an a n ti. O n e re a so n w a s an a tte m p t to a v o id tr a n s la t in g 'R e ic h ' b y 'B m p ire ' a n d so len d th e w o rd th e sig n ific a n c e w h ic h i t h a d b e fo re th e B m p e r o r'e a b d ic a tio n in N o v e m b er 1 9 1 8 . th e s e c u rity s e rv ic e o r a m e m b e r of th e a rm e d fo rc e s . p ro v o k in g a n d m ak in g fa ls e d e c la ra tio n s . a n d to w h o m e v e r t r i e d to in tro d u c e i t in s id e th e G e rm an b o r d e rs a n d d is s e m in a te it. o f th e N a tiç n a l-S o c ia lie t P a rty 66 . m e a n in g 'th e a u th o r ity of a c o n s titu te d m a tte r'.NOTES L ik e w ise tr a n s la te d aa 'th e law on th e g u a ra n te e of j u r i d ­ ica l peace'. a n d c o n s e q u e n tly . th e law w as p r o m u lg a te d on th e c o m p u lso ry s te r iliz a tio n fo r in d iv id u a ls a ffe c te d b y h e r e d ita r y i ll n e s s e s o r o th e r in c u r a b le d e fic ie n c ie s . w e re p u n is h a b le up to fiv e y e a r s of h a r d la b o u r. o r ev en a m o re s e v e re p u n i s h ­ m e n t to w h o m e v er u n d e rto o k to k ill. as a le g itim a tin g m e a n s. P u rth e rm o re . i t c h a n g e d in to a d r a s tic a lly d if f e r e n t fo ru m . L a tin legal p h r a s e . w ith th e d is s o lu tio n o f th e p o litic a l p a r ti e s . As C h a n c e llo r a n d L e a d e r. O n th e o th e r h a n d . w h e n e v e r i t s u ite d it. of th e SA a n d o th e r p a r a m ilita r y o rg a n iz a tio n s p ro te c tin g th e P a rty . th e ra ilw a y . H itle r r e s o r te d to p le b is c ite s to o b ta in p o p u la r c o n firm a tio n o f h is p o lic y a n d v a rio u s d e c is io n s . a w itn e s s o r a c iv il s e r v a n t e m p lo y e d b y th e c r im in a l p o litic a l p o lic e . in c ite d to . T h re e im p o rta n t la w s cam e o u t o f th e R e ic h C h a n c e lle ry on 14 J u ly 1 9 3 3 . a m a tte r th a t becom es a u th o r ita tiv e in v i r tu e o f th e fa ct t h a t i t is e s ta b lis h e d b y law . a P a rty o ffic ia l o r a m e m b e r of th e G e rm a n fly in g c lu b . f u lly a w a re of i ts c o n te n ts . in c itin g . w ith a v ie w to o rg a n iz in g p o litic a l p a r ti e s . tit l e u n d e r w h ic h h e c o m b in e d h is P a r ty 's le a d e rs h ip w i t h th e o ffice of th e R e ic h P r e s id e n t in 1 9 3 4 .n a tio n a l p u r p o r t in to th e c o u n tr y . f o re s t and m u n ic ip a l p o lic e .

O n th e o th e r h a n d . u n le s s th e R e ic h s r a t d e m a n d e d a re fe r e n d u m .o u t o ffe n s iv e a g a in s t h i s p o litic a l o p p o n e n ts a n d a llie s a lik e . D u rin g th e W e im a r R e p u b lic . F u r th e r m o r e . t h a t i s . b u t fo r th s r o u tin e w o rk o f th e a s s e m b ly t h e y w e re a llo w e d to a p p o in t t h e i r o w n h ig h o ffic ia ls to r e p r e s e n t th e m in s te a d .s i x v o te s am ong th e m . 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. th a t w a s c o n v e n e d a t H i t le r 's p le a s u r e . th e R e ic h s r a t lo s t i t s re a s o n fo r e x is te n c e . th e m e m b e rs of th e p r o v in c ia l g o v e rn m e n ts w e re th e c h ie f d e le g a te s of t h e i r s ta te s in th e R e ic h s r a t.NOTES a lo n e . He n e e d e d h i s N a tio n a lis t a llie s to g e t th e b a re m a jo rity of s e a ts in th e R e ic h s ta g (2 8 8 p l u s 5 2 in a h o u se of 6 4 7 s e a ts ). A r tic le 76 r e f e r r e d to t h e p o s s ib i l it y o f r e v is in g th e C o n s titu tio n b y le g is la tiv e m e a n s . th e a s s u m p tio n of t h e le g is la tiv e p o w e r by 9 10 11 12 13 67 . O ffic ia lly . H i t la r 's m o v e m e n t g a r n e r e d o n ly a n a d d itio n a l f iv e a n d a h a lf m illio n v o te s . S e c o n d ary in im p o rta n c e to th e R e ic h sta g . W ith th e e lim in a tio n o f a ll s ta ta l a t t r i b u t e s o f th e p r o v in c e s by H itle r in J a n u a ry 1 9 3 4 . b y m e a n s o f s m a jo rity o f tw o t h i r d s of t h e i r v o tes. in c a s e o f o p p o s itio n . to ta llin g 4 3 . T he 5 M a rc h 1 9 3 3 e le c tio n s w e re th e la s t m u lt i . L eft u n tr a n e ie te d in t h e te x t. th e D a w e e P la n . n a m e d a fte r its in it i a t o r . a n d w a s d is s o lv e d b y a law o f 14 F e b r u a r y 1934 A d o p te d in A p r il 1 9 2 4 . i n th e p r e s e n c e o f tw o t h i r d s of th e to ta l leg a l n u m b e r of th e d e p u tie s o f t h e R e ic h sta g . A m e ric a n la w y e r a n d f in a n c ie r C h a rle s G a tes D a w e s ( 1 8 6 S -1 9 S 1 ) w h o a y e a r l a t e r b e c a m e US V ice P r e s id e n t. e v e r y la w w a s e x p e c te d to b e p a s s e d b y th e R e ic h s r a t w h ic h c o u ld b e o v e r rid e d b y th e R e ic h sta g . th e R e ic h sta g c o u ld o v e r ru le t h e R e ic h s r a t's v e to in t h e m a tte r . a s a q u a s i p le b is c ita r y o rg a n . a p o p u la r in it i a t i v e fo r a n y c o n s titu tio n a l r e v is io n h a d to r a l l y th e m a jo rity c o n s e n t o f a p o p u la r r e fe r e n d u m . th e H e ic h s ra t w a a th e c re a tio n of th e W e im a r R e p u b lic . i t c o n s is te d of r e p r e s e n t a t i v e s of t h e s ta te s w h ic h c o u n te d a to ta l of s i x t y . th o u g h .p a r t y e le c tio n s . m e a n t som ehow to c o n ­ tin u e th e tr a d i t io n o f th e F e d e r a l C o u n cil in B is m a rc k 's R e ic h . a n d e n a b la h e r to p a y th e im p o s e d w a r r e p a r a tio n s w ith o u t s e ttin g a n y fin a l to ta l a m o u n t a n d te r m of p a y m e n t. T h e f illin g of a p o w e r v a c u u m i n a c o u n tr y 's g o v e rn a n c e i s e n o u g h ju s tif ic a tio n in a s e c u la r iz e d w o rld fo r w h o m e v e r u n d e r ta k e s i t s u c c e s s f u lly . a n d h a v e th e R e ic h P r e s i d e n t p ro m u lg a te t h e a m e n d m e n t w i t h in a fo r tn ig h t.9 p e r c e n t o f th e o v e r a ll n u m b e r o f v o tea c a s t. a te b iliz e i ts c u r r e n c y . If t h e W e im a r R e p u b lic e m e rg e d in t h e p o w e r v a c u u m c re a te d b y th e B m p e ro r's a b d ic a tio n . D e s p ite a m o n s te r e le c to r a l c a m p a ig n . a s H itle r t h e n e m b a rk e d u p o n h is a ll .

2 . it h a d a w id e c ir c u la tio n in th e lib e ra l n in e te e n th c e n ­ t u r y . A lth o u g h h e d i s l ik e d H itle r p e rs o n a lly . C h . h is m u c h re s h u f f le d c a b in e t m et for th e la st tim e on 4 F e b r u s r y 19 3 8 ! T h e re w a s no fo llo w .70. E v e n tu a lly . w h e n th e R e ic h sta g tu r n e d d y s fu n c tio n a l.1 6 3 2 ) . it w as a tr a n s la tio n of th e L atin s e n te n c e R e x regnet se d non g u b e rn a t. A t S c h le ic h e r h a d b e e n re le a s e d from a n y p o litic a l office a n d H itle r h im s e lf h a d becom e C h a n c e llo r. th e R eich G o v e rn m e n t c h a n g e d its c o m p o s itio n fro m a p o litic a l c o alitio n c a b in e t to a le g is la tiv e g o v e rn m e n t o f e x p e r t s se lec te d a n d a p p o in te d by t h e C h a n c e llo r w h o a ls o c o u ld d is m is s th e m a t w ill. PoU tiscbe T heologie ff. (See C arl S c h m itt. H ence th e i n h e r e n t c o n tra d ic tio n : th e E m p ire (R e ic h ) is a re p u b lic ! A fte r th e M a rc h 1 9 3 3 e le c tio n s . th e C o n s titu tio n re fle c te d th e d if f ic u ltie s e n ­ c o u n te re d w h ile a tte m p tin g to p la c a te a ll th e c o n flic tin g tr e n d s . a n d (2 ) T he p o litic a l p o w e r co m e s fro m th e p e o p le . 2 . w a s d ir e c te d a g a in s t S ig ism u n d 111 V asa ( 1 5 8 7 . a n d w a s soon to b e re p la c e d by a G o v e rn m e n t law of H itle r 's o w n m a k in g .) 14 15 16 17 18 68 . T he la w o f 17 D ecem ber 1 9 3 2 w a s a N a tio n a l-S o c ia lis t s p o n s o re d b i ll m e a n t to p r e v e n t th e th e n C h a n c e llo r S c h le ic h e r to a s s u m e th e P re s id e n t's p o w e rs in c ase of l a t t e r 's in c a p a c ita tio n . K ing o f P o la n d . A rtic le 1 of th e ^ V eim ar C o n stitu tio n c o n s is te d of tw o se c tio n s: '(1 ) T h e G e rm a n R eich is a re p u b lic . 19. w h ic h ro u n d 1 6 0 0 .' P ro m its f i r s t s ta te m e n t. O n th e o th e r h a n d . th e 'gloom y s itu a tio n ' r e fe r s to th e s h o r t s p e ll w h e n H in d e n b u rg . o r in th e e v e n t of h i s d e a th . i t w a s th e la t t e r 's a s s u r a n c e s t h a t h e w o u ld not be b u r d e n e d w ith th e p ro b le m s in c u m b e n t o n th e c h a n c e llo r th a t m a d e P r e s i­ d e n t H in d e n b u rg r e le n t a n d a p p o in t h im c h a n c e llo r. B e r lin . F re n c h s e n te n c e m e a n in g 'w h o re ig n s b u t does not g o v e rn '. th e R eich P r e s id e n t h a d b e e n re fu s in g to e n tr u s t H itle r w ith th e fo rm a tio n o f a c a b in e t in th e a fte rm a th of th e N o v e m b er 1 9 3 2 e le c tio n s . th e le g a lity of th e a ct as s u c h is its le g itim a tio n .NOTES H itle r c o u ld b e J u s tif ie d b y an alo g y w ith th a t v o lu n ta ry tr a n s f e r . R e fe re n c e to th e fo rm u la of g o v e rn m e n t by p re s id e n tia l d e c re e w h ic h w a s p r a c tis e d in G e rm an y in th e l a s t tw o y e a rs of th e W e im a r R e p u b lic . p a r ti c u l a r ly in o r d e r to so lv e th e fin a n c ia l c r i s i s . A c c o rd in g to C a rl S c h m itt.u p o f th a t law as no n ew C o n s titu tio n w a s e v e r to b e w r i t te n in th e tw e lv e y e a rs of N a tio n a lS o c ia list r u le . It se e m s to h a v e b e e n o n e of th e v e ry few p ro m is e s w h ic h H itle r e v e r k e p t. M o re o v e r. s e c . th a t law w aa a n o b v io u s im p e d im e n t to h is a ssu m p tio n of p re s id e n tia l p o w e rs . in c irc u m s ta n c e s in w h ic h n o rm a tiv e p o s itiv is m p r e v a i ls . r e lu c ta n t o r u n a b le to e x p e d ite n e c e s s a ry le g is la tio n .

A r tic le 7 3 l is te d f o u r c a s e s i n w h ic h a r e fe r e n d u m c o u ld b e c a lle d : a. th e ra n g e of le g is la tiv e p o s s ib i l it i e s w o u ld s u r ­ p a s s a n y b o d y 's im a g in a tio n . e n d s d e m a n d w a s m a d e fo r i t s s u b m is s io n to a r e fe r e n d u m b y tw e n ty p e r c e n t of t h e e le c to ra te . E v e r y th in g w a s in d e e d q u ite c o m p lic a te d . w h e n th e p u b lic a tio n of a b i ll w a s a d jo u rn e d b y t h e m o tio n o f a t le a s t o n e t h i r d (d th e m e m b e re of t h e R e ic h e te g . w h e n t h s R e ic h P r e s id e n t a lo n e h a d t h e r ig h t to c e ll a r e fe r e n d u m . ta x e s a n d w a g e s . in c o n n e c tio n w i t h t h s le g isla tio n fo r th s b u d g e t. i t s ta te d t h a t e ac h m in i s t e r h a d to m sn sg a th e a f fa ir s of t h e d e p a r tm e n t in h i s c h a rg e f u lly in d e p e n d e n tly . b u t e q u a lly b y th e R e ic h G o v e rn m e n t. a n d t h s se c o n d a ffirm e d th a t b i ll s o f t h e R e ic h w e re p a s s e d by th e R e ic h sta g . I t m ay b e s a id t h a t a n y o r d e r is s u e d i n th e n a m e o f a n y p u b l i c b o d y e v e n tu a lly a c q u ir e d th e p o w e r of la w . In a d d itio n . no re fe r e n d u m fo r t h s p o p u la r i n it i a t i v e w a s d e e m e d n e c s s s e r y ) . a n d f i n a l l y . T h a t is : T h e ' la w s o f t h e R e ic h m a y b e e n a c te d a c c o rd in g to t h e p ro c e d u r e s t i p u la t e d b y t h e R e ic h C o n s titu tio n . T he p r o c e d u r e fo r r e fe r e n d a a n d p o p u la r i n i t i a t i v e s w a s e s ta b lis h e d b y a n o th e r la w o f th e R e ic h . 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 ­ s e n te d a p o p u la r i n it i a t i v e . d . w ith in th e lim ita o f th o s e d ir e c ti v e s . c . w h ic h n e e d e d to b e b r i e f a n d h a d f i r s t to b s s u b m itte d b y t h e g o v e rn m e n t to th e R e ic h s ta g fo r i t s o p in io n ( in t h d c a s e in w h ic h th e R e ic h s ­ ta g e n a c te d t h s d r a f t w i t h o u t a m e n d m s n ta . w h e n t h e R e ic h P r e s id e n t eo d e c id e d w i t h in a m o n th fro m th e p a s s a g e o f e b i l l b y th e R e ic h s u g a n d b e fo re its p u b lic a tio n . In d e e d . b . T h a t m ak e a i t e a s y to u n d e r s ta n d H itle r 's p r e fe re n c e fo r p le b is c ite s w h ic h o n ly c o n firm e d h is d e c is io n s w h e n e v e r h e n e e d e d c o n firm e tio n e it h e r as s e lf . T h is d ie p o e itio n a p p lie e to t h e la w s d e fin e d b y A r tic le 8 2 $2 a n d A r tic le 8 7 o f th e W e im a r C o n s titu tio n '.NOTES 19 A r tic le 5 6 o f th e W e im a r C o n s titu tio n d e fin e d t h e o ffice of R e ic h c h a n c e llo r a s th e d u t y to t r s c e o u t th e g u id in g l in e s o f p o lic y fo r w h ic h h e a s s u m e d r e s p o n s ib ility b e fo re th e R e ic h sta g . a n d u n p r e d ic ta b l e a s fa r a s t h s r e s u l ts w e re c o n c e rn e d .a s s u r a n c e o r m o r s l ik e ly f o r p ro p a g a n d is tic e ffe c ts in t h e in te r n a tio n a l a re n a . a n d fo r w h ic h h e w a s a c c o u n ta b le to th e R e ic h sta g . A r t i c l s 6 8 c o n ta in e d tw o c la u s e 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 le g is la tio n b e lo n g e d to th e R e ic h g o v e rn ­ m e n t a n d to t h e m e m b e rs o f t h s R e ic h sta g . P a ra g ra p h 2 r e fe r r e d to th e n e c e s s a r y m e a s u re s w h ic h th e R e ic h P r e s id e n t c o u ld ta k e i n case s e c u r ity a n d p u b lic o r d e r w e re s e r io u s ly im p a ir e d o r c o m p ro m ise d w ith in th e 20 21 22 23 24 69 . 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 e t w i t h no o b je c tio n fro m th e i n te r ­ e s te d p u b lic a d m i n i s t r a t i v e d e p a rtm e n ts .

in to R e ic h sta g re s o lu tio n s . in c lu d e d am ong th e m e a su re s w e re th e u se of a rm e d fo rc e s a n d th e p a r tia l o r total s u s p e n s io n o f th e b a sic r ig h ts g u a ra n te e d b y o th e r a rtic le s of th e C o n s titu tio n . not o n ly in m a tte rs of d e c is io n -m a k in g b u t a ls o in th e im p le m e n ta tio n of d e c isio n s: th e W e im a r C o n s titu tio n w a s n e v e r a b ro ­ g a te d o ffic ia lly . See note 4 above. often c o n tra d ic to ry . W h a t in p r i n c i p l e is im p o r ta n t in t h e i r case is th a t th e y w e re e n title d to te n u r e . a t th e r e q u e s t of th e R eich P r e s id e n t o r . R e fe rs to th e m a in tr a n s fo rm a tio n w o rk e d in th e 25 26 2? 28 29 30 31 70 . p ro d u c e d th e ir o w n re g u la tio n s a n d c o m m a n d s. In o th e r w o rd s . g iv e n th e f a c t th a t all c iv il s e r v a n ts w e r e p r o f e s s io n a ls . it e n h a n c e d th e s e lf . B e sid e s. 1 9 3 2 -1 9 3 8 . H en ce. B n g lis h -tp e a k in g h is to r ia n s a n d t r a n s la t o r s te n d to r e n d e r th e G e rm an te rm B erufabeam ten aa 'p ro fe s s io n a l c iv il s e r ­ v a n ts ’. a fte r th e 2 7 F e b ru a ry 19 3 3 f ir e a t th e R e ic h s ta g b u ild in g . th e R e ic h sta g c o n v e n e d o n ly a t th e c h a n c e llo r's p le a s u r e o n its new a n d p ro v is io n a l p re m is e s . w e re n o t p o litic a l a p p o in te e s . V a rio u s . so to s p e a k . w h ile on th e o th e r.2 7 of th e B n g iish tr a n s la tio n in c lu d e d in C arl S c h m itt: F o u r A rtic le s . 2 4 . v y in g in t h e i r e a g e rn e s s to a n tic ip a te th e L e a d e r's w ill. A ll t h i s a c c u m u la tio n erf r u l e s a n d re g u la ­ tio n s g e n e ra te d a n d p e r p e tu a te d a fog of a p p re h e n s io n a n d u n c e r ta in ty . 1 9 9 9 . w h ic h s o u n d s r a th e r p le o n a s tic . w h ile lo cal a u th o r itie s . in o r d e r to re s to re th e m . n a m e ly . w h e th e r re a l o r m e re ly im a g in a ry . a n d o th e r la w s o f th e im p e r ia l e ra re m a in e d v a lid . See i n p a r ti c u l a r p p . th a t th e R e ic h sta g w a s to c o n v e n e each y e a r on th e f i r s t W e d n e s d a y of th e m o n th o f No­ v e m b e r a t th e s e a t o f th e R e ic h g o v e rn m e n t. th e y h a d to s u b m it to sp e c ia l e x a m in a tio n s a n d t r a in in g fo r th e p o s itio n s fo r w h ic h th e y a p p lie d . d e c re e s a n d re g u la tio n s w e re a d d e d to th e m . th e o n e . p a rty o r a d m in is tr a tiv e . R e fe re n c e to h ie a r ti c l e 'F u r t h e r D e v e lo p m e n t of th e Total S ta te in G e rm a n y '. p u b l is h e d o rig in a lly in th e F e b ru a ry 1 9 3 3 is s u e o f R u ro p E isc h e R ev u e.p a r ty R e ic h sta g e le c te d in No­ v e m b e r 1 9 3 3 h a d no le g is la tiv e i n itia tiv e of its o w n . I t c o u ld be c o n v en e d so o n e r b y i t s C h a irm a n . It o n ly c o u ld fo rm u la te th e d e c is io n s s u b m itte d b y th e R eich c h a n c e llo r a t h is p le a s u r e . a n d lik e th e c a re e r d ip lo m a ts in th e USA. th e K ro ll O p e ra H o u se. a n d w ith o u t a n y d e b a te . A r tic le 24 of th e W e im a r C o n s titu tio n s tip u la te d q u ite th e o p p o site . th e p re fe re n c e to u s e th e E n g lis h te r m s 'c a r e e r c iv il s e r v a n t s ' w h e re v e r t h a t a p p lie s in b o th t r a n s la tio n s in c lu d e d in t h is book. H itle r k e p t a ll h is o p tio n s o p e n . W a s h in g to n DC.s a tis f a c tio n o f th e v a r io u s c a te g o rie s of 'le g is la to rs ' w h o e n jo y e d a n d in d u lg e d t h e i r u n d re a m t-o f p o w e r. o f a t le a s t o n e t h ir d of th e d e p u tie s .NOTES G e rm an R e ic h . on th e o n e h a n d . b e c a u s e in G e rm a n y a t le a st.

a n d t h e i r p a r lia m e n ta r y r e p re s e n ta ­ tio n . R h in e la n d e r s . A s v ic e -c h a n c e llo r s to th e p ro v in c e s . In v ir tu e of t h a t la w . e x c e p tio n s w e re m a d e fo r th o s e in th e la tte r category w h o h a d lo s t a p a r e n t o r a s ib lin g in th e w a r o r w e re th e m s e lv e s w a r v e te r a n s .le a n in g c iv il s e r v a n t. a n d d is r e g a r d th e c o n s titu tio n s a n d th e p ro c e d u r e s p e c u lia r to th e re s p e c tiv e s ta te s . a t th e e x p e n s e of v o n P a p e n . b e c a u se a n o th e r G o v e rn m e n t law of 13 O c to b e r 1 9 3 3 w o u ld s u s p e n d th e m in d e f in ite ly . a n d o f a ll d i s t r ic t . a n d a lso of any c iv il s e r v a n t of J e w ih d e s c e n t. e tc . f o rb id d in g a n y of­ fic ia l d is tin c tio n s s u c h a s . th e R eich C h a n c e llo r's d e le g a te s c h arg e d to s u p e r v is e th e im p le m e n ta tio n o f th e la w s o f th e R eich a n d of th e L e a d e r 's o r d e r s in th e p ro v in c e s o r th e g ro u p of p ro v in c e s a llo tte d to th e m . a n d s u p p r e s s e d th e n a tio n a litie s . T he e m p h a sis is on d i r e c t a n d m e c h a n ic a l s u b o rd in a tio n a c c o rd in g to a p r i n c i p l e of ra n k in g le a d e r s h ip . so to s p e a k . b u t e n tr u s te d th e fu n c tio n s of th a t o ffice to h i s h e n c h m a n H e rm a n n G b rin g . a n d v illa g e c o u n c ils . a n d in c re a s e th e p o w e r of th e g o v e rn o rs . T he p ro v in c ia l g o v e rn o rs w e re . r e p la c in g t h e i r c o u n c ils b y m a y o rs a n d 32 33 71 . a s M in is te r P r e s id e n t of P r u s s ia . se le c te d p ro v in c ia l a s s e m b lie s w o u ld b e s h o r t . I t h a d a lso p r o v id e d fo r th e d is s o lu tio n o f a ll th e e le c te d p ro vin cia l p a r lia m e n ts . th o u g h . a n d to law e n fo rc e m e n t b o d ie s . a n d a p p lie d to e d u c a to rs a t a il le v e ls . T he n e w . k n o w n as th e la w fo r th e re ­ e s ta b lis h m e n t of th e c iv i l s e rv ic e . H itle r a p p o in te d h im s e lf g o v e rn o r of P r u s s ia . t h a t is . T h e p ro c e s s h a d b e e n s t a r te d w ith th e 31 M a rch law o f c o o rd in a tio n .: th e y w e re a ll G e rm an s. b e tw e e n S axons a n d F ra n c o n ia n s. fo r in s ta n c e . T he sa m e la w d e p r iv e d th e b ig c itie s o f t h e i r a u to n o m y . t h e i r a u th o r ity w a s a ll in c lu s iv e a t th e e x p e n s e of th e l a s t a tt r i b u te s of sta te h o o d of th e p ro v ­ in c e s . a n d fo r t h e i r re o rg a n iz a tio n on th e b a s is of th e r e s u l t s of th e R eich e le c tio n s o f S M a rc h 1 9 3 3 . a c c o rd in g to th e law of 7 A p ril 1 9 3 3 . c ity . a f te r th e p u b lic a tio n of t h is book. T h a t law w as s tre n g th e n e d by o th e r tw o o f 3 0 J u n e a n d 2 0 J u l y 1 9 3 3 w h ic h a ls o re g u la te d a d m is s io n to th e B ar. S w a b ia n s . a n e w la w on th e reorganization o f th e R e ic h f u lly a b o lish e d any c o n s titu tio n a l a n d a d m in is tr a tiv e p a r ti c u ­ la r ity of th e p r o v in c e s .l iv e d . O n 31 J a n u a ry 1 9 3 4 . th e s t r u c t u r e of th e G e rm a n c iv i l s e r v ic e by th e law of 7 'A p ril 1 9 3 3 .NOTES m e n ta lity and. i t m a r k s th e se c o n d s ta g e in th e s tre a m ­ lin in g p ro c e s s o f c o n c e n tra tio n o f s ta te p o w e r in th e h a n d s of th e L e a d e r. U n til H in d e n b u rg 's d e a th . w h ic h h a d c a lle d th e N a tio n a l-S o c ia list g o v e rn m e n ts of th e c o n fe d e ra te s ta te s to le g isla te in tu n e w i t h a n d by ta k in g th e e x a m p le of th e R eich g o v e rn m e n t. K n ow n a s th e 'se c o n d law o f th e c o o rd in a tio n o f th e p r o v in c e s w ith th e R e ic h '. th a t led to th e re m o v a l of a n y le ft-w in g o r e v e n R e p u b lic a n .

th e SA w a s s u p e r s e d e d by th e SS (S c h u tz S taffeln . w ith tw o t h i r d s of th e v o te s. w h ile on p u b lic d u ty . N one of th a t c o u ld h a v e h a p p e n e d in th e N a tio n a l-S o c ia list G e rm a n y . b u t a fte r 3 0 J a n u a ry 1 9 3 3 s a w i ts ro le ch an g e d in to th e e m b o d y m e n t o f th e r e v o lu tio n fro m b e lo w . in c h a rg e of th e P a r ty ’s a ffa ir s .T h a t a ls o m e a n t th a t th e s ta te s w ith th e ir te r r i t o r i a l so v e re ig n ty w e re a t le a s t th e o r e tic a lly n o t affect­ e d b y th e la w . w h ic h t r a n s la te s a s 'th e R e ic h C o u rt fo r C iv il L aw C ases'. p p . In fa ct H itle r h a d a lre a d y b e e n m a k in g p la n s to do a w ay w ith R öhm a n d re d u c e th e im p a c t of th e SA in th e p u b lic a re n a in fa v o u r o f th e d is c ip l i n e o f th e A rm y . T he la r g e s t p a r a m ilita r y fo rm a tio n of th e N a tio n a l-S o c ia list P a r ty . i t w a s th e sta te o r th e c o rp o ra tio n w h ic h e m p lo y e d th e c iv i l s e r v a n t th a t in p r i n c i p l e w as lia b le fo r th e v io la tio n . In th e 1 9 3 9 p r i n ti n g of R e y n a l a n d H itchcock of N ew Y o rk . T h a t is th e title of c h a p te r X in th e se c o n d v o lu m e of H itle r 's M e in K am pf. th a t i s . It w a s th a t G ra n d C o u n cil of P a sc ia m .E c h e lo n s o f P ro te c tio n ) w h ic h w on its in d e p e n d e n c e fro m th e SA on th e occasion. 4 6 . th e SA h a d a c te d aa th e P a r ty 's in s t r u m e n t of m a s s te r r o r is m . s u b je c te d M u s s o lin i to s c o rc h in g c r itic is m fo r h is c o n d u c t and r e p u d ia te d h im . b o th of th e R e ic h sta g a n d th e R e ic h s ra t.2 5 J u l y 1 9 4 3 . it w a s th e R e ic h M i n i s t e r o f th e I n te r io r W ilh e lm P ric k w h o u n d e rto o k to so lv e it th ro u g h th e g ra d u a l c o o rd in a tio n of th e s ta te s in to th e p ro v in c e s of a c e n tr a liz e d e n tity a n d th e u ltim a te d is s o lu tio n of th e R e lc h s ra t in 1 9 3 4 . M o re a b o u t th e n o tio n o f g o v e rn m e n t m ay b e fo u n d in C h a p te r IV. aa d e p u ty le a d e r of th e P a r ty .4 8 . b ro u g h t no sp e c ific a lte ra tio n s to th e tw o i n s t it u t io n s as d e fin e d b y t h a t c o n s titu tio n . w h ic h w as p a s s e d in te rm s of th e W e im a r C o n s titu tio n . as C h ief of Staff o f th e S tu rm A b te ilu n g (S e lf-D efe n c e S e c tio n ). A fte r th e 3 0 J u n e .NOTBS c o m m isio n e rs a p p o in te d b y th e R eich G o v e rn m e n t. a n d B rn s t R öhm . T h e re a re s e v e ra l B n g iish t r a n s la ­ tio n s a v a ila b le . A s fa r aa R öhm w a s con­ c e rn e d . th a t a p p o in tm e n t w a a se e n a s t h e c o rre c tio n of an o m m ia sio n th a t h a d long b e en a g rie v a n c e w ith th e SA. w h ic h b ro u g h t a b o u t a c r i s i s w ith in th e n e w R eich g o v e rn m e n t. T h a t is to s a y . th u s fa c ilita tin g h ia d is m is s a l b y th e K ing a n d h is a r r e s t. 8 1 6 . T he in it i a l s s ta n d fo r 'R e ic h s g e r ic h t f ü r Z iv ils a c h e n '. i t r u n s b e tw e e n p p . T he law of 2 4 M a rc h 1 9 3 3 . y e t t h a t lia b ility d id not e x c lu d e i t s n o rm a l p u r s u i t in a c o u rt of la w .8 4 5 . w h ic h in a m e e tin g on th e n ig h t o f 2 4 . 34 35 36 37 38 39 40 72 .4 J u ly 1 9 3 4 p u rg e . R u d o lf H e ss. A p p a r e n tly . b et­ t e r k n o w n as 'S to rm T ro o p s'. A r tic le 131 of th e W e im a r C o n s titu tio n s ta te d th a t if a c iv il s e r v a n t in fr in g e d h i s p ro fe s s io n a l o b lig a tio n s to w a rd s a t h ir d p a r ty . f a r t h e r on. th e o n ly a v a ila b le to m e a t th is tim e .

th e C o n s titu tio n re c o g n iz e d th e w o r k e r s ' a n d e m p lo y e rs ' a s s o c ia tio n s a n d t h e i r c o n tr a c ts . T h e h r s t s e c tio n o f t h a t la w a e s e r te d th e a b s e n c e o f a s ta te c h u r c h . w h ic h s ta te d t h a t t h e c o m m u n itie s a n d u n io n a ^ c o n u n u n itie s h a d a r ig h t to a u to . T h a t is th e d e fin itio n o f th e n a tio n fo rm u la te d b y E r n e s t R e n a n ( 1 8 2 3 .1 8 7 1 ) t h a t e n d e d i n P r a n c e 's d e fe a t a n d th e a n n e x a tio n of A ls a c e -L o r ra in e b y P r u s s ia n G e rm a n y . c o n ta in in g a ix s e c tio n a . I t i s in t h is a r ti c l e ( w h ic h w i t h th e r e e l o f th e C o n s titu ­ tio n w a s m a d e p u b l ic o n 11 A u g u s t 1 9 1 9 .e a r n e d r i g h ts o f th e c iv i l s e r v a n t s w h o s e te n u r e w a s a ffirm e d . in th e p o le m ic b e tw e e n G e rm a n a n d F re n c h s c h o la rs re g a rd ­ in g A ls a tia .a d m in is tr a tio n w i t h in th e l im i ts o f th e la w .NOTES 41 T h a t is a p p a r e n tly w h a t S o v ie t R u s s ia a n d C o n u n u n ist C h in a h a v e tie e n fe a rin g m o s t fro m th e econom ic o v e r tu r e s b y th e W e s t s in c e t h e o s te n s ib le e n d o f th e c o ld w a r. A r tic le 1 6 5 .1 6 7 9 ) . w h ile th e s e v e n th s e c tio n a s s im ila te d s u c h a s s o c ia tio n s w h ic h co m m o n ly p u r s u e d p h ilo s o p h ic a l id e a ls to re lig io u s d e n o m in a tio n s. b y T h o m a s H o b b e s ( 1 5 8 8 . 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 c o m m o n w e a lth . A llu s io n to th e s y m b o l u s e d f o r th e s ta te .1 8 9 2 ) F r e n c h h is to r ia n a n d p h ilo lo g is t. a n d w h o c o u ld se e k s a tis fa c tio n fo r a b u s e a n d o th e r g rie v a n c e s in c o u r ts of la w . F u r th e r m o r e . its se c o n d s e c tio n g u a r a n te e d th e fre e d o m o f r e l i ­ g io u s a sso c ia tio n w i t h o u t lim ita tio n s . T h ey w e re to f u n c tio n a lo n g s id e o f d i s t r i c t eco n o m 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 a v e b r o u g h t to g e th e r e m p lo y e rs a n d e m p lo y e e s a n d a ll th e so c ia lly a n d e c o n o m ic a lly s ig n ific a n t p ro fe s s io n a l ^ o u p s i n o r d e r to c a r r y o u t eco n o m ic ta s k a a n d c o o p e ra te in th e a p p lic a tio n of th e la w a o f so c ia liz a tio n . s u r t e d w ith a n a p p e a l to w o r k e r s a n d e m p lo y e e s to c o o p e ra te w i t h th e e m p lo y e rs on a n e q u a l fo o tin g w i t h r e g a rd to w ag ea. w h e r e a s n e w a p p lic a n ts c o u ld o b ta in t h a t s ta tu a o n ly if th e y w e r e c a p e b le cA g iv in g a u ffic ie n t p ro o f of d u r a b il i ty . i n th e a f te r m a th o f t h e F ra n c o -P m e e ia n w a r (1 8 7 0 . u n le s s th e la w p r o v id e d o th e r w is e . A r tic le 1 2 7 c o n ta in e d o n e s e c tio n o n ly . a n d of a R e ic h la b o u r c o u n c il m e a n t to r e p r e s e n t w o r k e r s ' a n d e m p lo y e e s' i n te r e s t s . M o re o v e r. th o s e d e n o m in a tio n s w h ic h h a d a lre a d y b e e n e n jo y in g th e s t a tu s o f p u b l ic . t h e E n g lis h p o litic a l p h ilo s o p h e r of t h e C iv il W a r. T h a t a r tic le r e f e r r e d to t h e i n v io la b ility o f th a w e ll. th e e r a o f w o r k e r a ' a n d s o ld ie r a ' c o u n c iia ) t h a t m e n tio n w a s m a d e o f d i s t r i c t la b o u r c o u n c ils w h ic h w e r e to b e o rg a n iz e d a c c o rd in g to eco n o m ic re g io n s . w o r k in g c o n d itio n a a n d th e o v e r a ll e co n o m ic d e v e lo p m e n t c i th e p r o ­ d u c tiv e fo rc e s.l a w c o rp o ra tio n s w e re a llo w e d to k e e p th a t s ta tu s . T h s R e ic h E co n o m ic C o u n c il h a d b e e n m e a n t to s e r v e a t a n a d v is o r y 42 43 44 45 46 47 48 73 .

D ie G rundleg u n g d e r p o litise b e n Ö konom ie (T h e P o u n d a tio n e of P o litic a l E conom y). See a ls o w h a t C arl S c h m itt s a y s in th e foo tn o te on page 6 a b o v e . a n d th e F re n c h d e fe a t in th e P r a n c o -P r u s s ia n w a r . O n e n e e d n o t m is ta k e A d o lf W a g n e r ( 1 8 3 5 . A d o lf W a g n e r ( 1 8 9 0 . e ith e r th ro u g h th e g o v e rn m e n t. th e p o litic a l p a r ti e s p r o v e d b e tt e r a g e n ts of th e i n te r e s t s of e m p lo y e rs a n d e m p lo y e e s a lik e .) U n id e n tif ia b le . a N a tio n a i-S o c ia lia t P a rty m e m b e r s in c e 1 9 2 3 a n d f u t u r e G o v e rn o r of B av aria. a lth o u g h th e d i s t r ib u t i o n o f i ts s e a ts t u r n e d in to a h ig h ly c o n tr o v e r s ia l a n d r a th e r in s s o lu b le ta s k . T he c la s s of c iv il s e r v a n t s is u n i v e r s a l in c h a r a c te r a n d so h a s th e u n iv e r s a l e x p li c it l y a s its g ro u n d a n d as th e a im of i t s a c tiv ity . w a s c re a te d on a p ro v is io n a l b a s is . is e s s e n tia lly c o n c e n tra te d on th e p a r ti c u l a r . h o w e v e r. t h a t t u r n e d P r u s s ia in to th e m ajo r G e rm an p o w e r a t th e e x p e n s e o f th e H a p s b u rg B m p ire . a n d to m ak e re c o m m e n d ­ a tio n s fo r so c ial a n d eco n o m ic la w s to th e R e ic h sta g .' (Q uoted fro m th e T . s tim u la te d th e se a rc h fo r a b e tte r c o n c e p tu a l u n d e r s ta n d in g o f th e m o d e rn s ta te . th e y seem to h a v e b e e n le ft w ith o u t a n y p r a c tic a l con­ s e q u e n c e .M . lik e m an y o th e r th in g s .MOTES office to th e R e ic h g o v e rn m e n t. th e p e r io d b e tw e e n th e P ru s s ia n m ilita r y v ic to ry o v e r A u s tr ia a t S a d o w a . No so c ia l o r e co n o m ic c o n s titu tio n w a s e v e r w o rk e d o u t in th e tw e lv e y e a r s o f th e N a tio n a l-S o c ia list sy s te m . T h e c la s s b e tw e e n th e m . w h o se m a jo r w o rk . In p r a c tic e . w ith th e ta s k to d e te r m in e w age c o n tra c ts . p u b lis h e d in 1 8 7 6 .1 9 4 4 ) . in th e f i r s t p lac e. a R e ic h g o v e rn m e n t law o f 19 M ay 1 9 3 3 c re a te d ’la b o u r t r u s t e e s ' to b e nam ed b y th e p r o v in c ia l g o v e rn m e n ts . th ro u g h o n e o f its re p r e s e n ta tiv e s . th a t led to 49 50 51 52 53 74 . T h e s e c tio n in q u e s tio n fro m H e g el's te x t r e a d s in B n g iish tr a n s la tio n a s fo llo w s: 'In v i r tu e of th e s u b s ta n t ia l it y o f its n a tu r a l a n d fa m ily life . a n d w h ic h fin a n c e d i ts a c t i v it i e s fro m t h e a s s e ts of th e fo rm e r t r a d e u n io n s a n d w e lf a re i n s t it u t io n s of th e s ta te a n d o f th e O u tlaw ed p a r ti e s . th e b u s i n e s s c la s s . A R eich B conom ie C o u n c il. N e v e r th e le s s . a n d h e n c e i t is to i t t h a t c o rp o ra tio n s a r e s p e c ia lly a p p r o p r i a te .1 9 1 7 ) G e rm a n econom ic h is to r ia n a n d so c ial th in k e r . T h a t is . th e a g r ic u ltu r a l c la s s h a s d ir e c tly w ith in i ts e l f th e c o n c re te u n iv e r s a l in w h ic h i t liv e s . o r d ir e c tly . b e c a u s e th e p o litic a l u n ity w h ic h th e y p r e ­ su p p o s e d w a s n o t th e r e . A ll th o a e c o u n c ils w e re a ls o in te n d e d to b e g iv en th e p o w e r o f a d m in is tr a tio n and c o n tro l in t h e i r p a r tic u la r s p h e r e s . O n t h e o th e r h a n d . fo r h ia m u c h y o u n g e r n a m e sa k e . b u t o n ly p ie c e m e a l g o v e rn m e n t le g ie la tio n a n d P a rty m e a s u re e w h ic h le d to th e c re a tio n of th e G e rm a n L a b o u r F r o n t t h a t e v e n ­ tu a lly c o n c e n tra te d on N a tio n a i-S o c ia lia t in d o c tr in a tio n a n d th e o rg a n iz a tio n o f th e w o r k e r s ' le is u r e tim e . K n o x 's tr a n s la tio n o f 1 9 4 2 .

NOTES th e u n ific a tio n of G e rm a n y . th e la r g e s t a rm e d fo rc e in th e fe d e ra tio n . A s th o s e fa rm s c o u ld be n e it h e r so ld n o r m o rtg a g ed . C arl S c h m itt fin 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 c o n c lu ­ s io n s to b e d r a w n fro m h ia p r e v io u s e ta te m e n ta . la rg e ly Social D e m o cra t.5 to 10 h e c ta r e s i n d iv i s i b l e a n d u n s a le a b le . t i l l e r s o f th e G e rm a n s o il a n d th e p r o g e n ito rs o f p u r e G e rm a n b lo o d . in fo rm e d th e P r u e e ia n g o v e rn m e n t th a t it f e lt n e c e s s a ry to ta k e o v e r th e g o v e rn m e n ta l p o w e rs in P r u s s ia b e c a u se its c a re ta k in g g o v e rn m e n t. a s th a fo u n d a tio n of n a tio n a l v ita lity . th e h e a d o f th e fe d e ra l g o v e rn m e n t. th e y f a c ilita te d th e N a tio n a l-S o c ia lis t c o u n tr y . O n ly a u c h f a r m e r s w e re e n title d to c all th e m s e lv e s G e rm a n p e a s a n ts .t r a d e of p r e e id e n ts a n d h e a d s o f g o v e rn m e n ts and t h e i r re p re s e n ta tiv e s a lik e . T h is im a g e ry i s p u r e g i b b e r i s h . T h e C o u rt d id n o t d e c la re th e t a k in g o v e r of th e P r u s s ia n a d m in is tr a tio n by th e f e d e ra l g o v e rn m e n t u n c o n s titu tio n a l. M o re lik e ly th a t w aa a n e x c u s e fo r a s s u m in g c o n tro l of th e P r u s s i a n p o lic e .c o m m u n ie t zeal. e v e r y w h e r e in t h e w o r ld . w ith c o n se q u e n c e s c o n tr a r y to v o n P a p e n ’s o r ig in a l in te n tio n s . By t h a t tim e . w h ic h l it e r a l ly m ean 't r u n k ' a n d 's u n d i n g '. from w h ic h th e y p ro c e e d e d to c le a n th e a d m in is tr a tio n o f so c ia ld e m o c ra tic a n d r e p u b lic a n e le m e n ts . i t o c c u rre d to m e . a s i ta k in d haa becom e th e s to c k . T h e G e rm a n w o rd s S tam m a n d Stand. C o n s id e rin g th e N a tio n a lS o c ia list e ffo rts to p ro d u c e a G e rm a n ic h e rita g e o f th e ir o w n . fo rm a n a ll i te r a t i v e p h r a s e . P r a n z v o n P a p e n . so m e o f th e n u a n c e o f th a t tr e n d w o u ld b e p r e s e r v e d . b u t r u le d th a t th e la tte r c o u ld n o t a e s u m e th e r e p re s e n ­ ta tio n o f P r u s s i a in th e R e ic h s r a t w ith o u t fo r t h a t m a tte r c h a n g in g th e fe d e ra l s t r u c tu r e o f G e rm a n y . h o w e v e r h o llo w i t m ig h t a p ­ p e a r to som a. in o r d e r to p r e ­ s e r v e th a p e a s a n ts . th a t b y u s in g t h a A ngloS axon te r m s in t h is tr a n s la tio n .in . O n 2 0 J u l y '1 9 3 2 . In t h a t w a y . w h ic h u n f o rtu n a te ly h a s s u r v i v e d H itle r ite G e rm a n y . i t h a d no m o re s e n s e th a n th e B n g lie h 'k i t h a n d k i n '. th a t in its g e n e r a liz e d u sa g e . s e c o n d o n ly to th e A rm y . 54 35 56 57 58 75 . th e m e a s u re c e a se d to b e n e fit th e o w n e rs d u r in g th e p e rio d o f re c o v e ry th a t follo w ed .w id e cam ­ p a ig n of in f iltr a tio n . A s a r e s u lt. n a m e ly t h a t th e P a rty w a s s w e r v in g t h e c iv il s e r v ic e fro m its tr a d itio n a l p u r p o s e a n d p r o c e d u r e s to th o s e o f th e P a rty w h ic h w a a re p la c in g t h e S tate. a n d so p r e v e n t th e N a tio n a lS o c ia lista fro m ta k in g i t o v e r. w h ile v o n P a p e n 's c o m m ies io n e r a o c c u p ie d th e P r u s s i a n g o v e r n m e n t o ffic e s. th e o ld c a b in e t o f O tto f ira u n r e tu r n e d to B e rlin j u s t to o v e rse e P r u s s i a 's vote in th e R e ic h s r a t. r e e p e c tiv è ly . lo n g p r e c e d e d H itle r 's re g im e. h a d n o t e h o w n e n o u g h a n ti. T h e law of 29 S e p te m b e r 1 9 3 3 d e c la re d a ll fa rm s o f 7 . w ith s g e n e ra l a p p e a l.

T he A rm y . th o u g h . th e n e w s w e re p u b lis h e d th a t th e body of s t u d e n ts a t th e lo cal u n i v e r s it y h a d p ro c la im e d P ro fe sso r D r.l i s t e le c tio n s fo r th e R e ic h sta g of 12 N ovem ber 1 9 3 3 w e re c o u p le d w ith a n a tio n a l p le b is c ite on G e rm a n y 's w ith d r a w a l fro m th e L eague o f N a tio n s. Bach c la s s . a t le a s t. and th e y w e re r e la tiv e ly fe w . K ö ln isch er Zeitung. e le c te d th e sa m e n u m b e r of c o u n c illo r s . w h ile th e t h 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 h o p a id v e ry sm a ll ta x e s o r no n e a t a ll. Som e th r e e c e n tu r ie s e a r l ie r . a s w e ll). se e note 3 1 . a g o v e rn m e n t law of 3 J u ly 1934 ju s t if i e d th e k illin g s a s leg al m e a s u re s ta k e n in d e fen c e of th e s ta te in an e m e rg e n c y .a law of n a tu r e a n d a s s u c h th e u ltim a te g u a r a n te e of i ts e f fe c tiv e n e s s . A s t i t l e . a n d w as g iv e n to th o s e re lia b le o ffic e rs o f P r u s s i a 's c e n tra l g o v e rn ­ m e n t.c l a s s s u ffra g e . a n a c tio n a lre a d y c o m p le te d . and w h o s e fu n c tio n w a s n o t o n ly th e c o lle c tio n of ta x e s a n d th e g e n e ra l a d m in is tr a tio n o f th e a r m y . In v i r t u e of th e 1 8 5 0 C o n s titu tio n . T h o m a s H o b b es d a r e d to e x p r e s s h is d o u b ts on th e is s u e in h is De C iv e (T he C itiz e n ). 'C o u n ty C o u n c illo r' d a te d from 1 7 0 2 . To th a t a n ew a rm y law w a s a d d e d on 2 0 J u ly 1933 w h ic h e n d e d th e j u r is d ic t io n o f th e c iv il c o u r ts o v e r th e m il i ta r y . 'Y ou p e r m a n m a n . w h ic h w e re se le c te d fro m th e local n o b ility . w a s th e w ay it w as fo rm u la te d . It a ls o u n d e r li n e s th e N a tio n a l-S o c ia lis t in ­ te n tio n of re d u c in g a ll th e o rg a n iz a tio n a l p r i n c i p l e s of th e c iv i l s e r v ic e to th a t of e th n ic i d e n tity . T h e w ay in w h ic h th e SA w a s r e in e d in . a n d a b o lis h e d th e r e p u b lic a n p r a c tic e o f e le c tin g r e p r e s e n ta tiv e s of th e ra n k a n d f ile to th o s e c o u rts . T h a t m e a n t th a t t h e v o te r s w e re d iv id e d in to t h r e e c la s s e s a c c o rd in g to th e a m o u n t of d i r e c t ta x e s w h ic h th e y p a id (th e to ta l re v e n u e of each c o m m u n ity w a s d e v id e d in to th r e e . w ho a s e le c to rs w o u ld th e n a ll to g e th e r ch o o se one d e p u ty for th e P r u s s ia n L a n d tag (D ie t) b y o p e n b a llo t. C a rl S c h m itt 'in te lle c tu a l le a d e r '. T he s i n g i e . A fte r th e fa c t.NOTES 59 R e fe re n c e to th e la w o f 7 A p r il 1 9 3 3 m e n tio n e d above. w a s a p p a r ­ e n tly s a tis f ie d w ith th a t e x p la n a tio n b e c a u se it fa ile d to la u n c h a n y p r o te s t a g a in s t th e su m m a ry e x e c u tio n of tw o of i t s m o st p ro m in e n t g e n e r a ls d u r in g th e p u rg e . six m o n th s la te r c o u ld n o t b e fo re s e e n fro m th e s c a n t le g isla ­ tio n on th e j u r is d ic t io n o f p u b lic b o d ie s a v a ila b le a t th e tim e . a n d th e y w e re m o re n u m e r o u s . you 60 61 62 63 64 65 76 . T he u n u s u a l th in g a b o u t th a t p le b is c ite . In th e 21 J u ly 1 9 3 3 is s u e of th e Cologne n e w s p a p e r . th e se c o n d c la s s of v o te rs w e re th o s e w h o to g e th e r p a id th e s e c o n d t h i r d . b u t a ls o th e c o n d u c t o f eco n o m ic p o lic ie s in t h e i r r e s p e c tiv e c o u n tie s. th e f i r s t c la s s o f v o te r s w e r e th o s e w h o se p a y m e n ts in d ire c t ta x e s a m o u n te d th e f i r s t t h i r d o f th e to ta l re v e n u e . th o u g h . th e m u n ic ip a l c o u n c ils w e re e le c te d b y th e t h r e e . c h a p te r V o f a n y E n g lis h e d itio n . so to s p e a k .

J o h a n n e s P o p itz . e i n e irg e n d w ie z u a a m m e n k o a lie rte M e h r h e it e in e M in d e r h 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 tm 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 a c h te '. W h e n . A a C a rl S c h m itt r e m a r k s i n T h e Q u e stio n of L egality*. L a tin e x p r e s s io n m e a n in g 'th e l a s t resort*. do y o u a p p ro v e of th e p o litic a of y o u r G o v e rn m e n t aind a r e y o u r e a d y to a c q u ie e c e in i t.3 p e r c e n t fo r th e p le b is c ite .NOTES G e rm a n w o m a n . . c h . b u t th e w e a v e r.2 p e r c e n t fo r th e R e ic h sta g e le c tio n s a n d 9 6 . th e F e d e ra l C o u n c il (B u n d e s r a t) h a d b e e n th e c r e a tio n o f B is m a rc k . T he O rig in e o f C ontem porary R ra n ce : The M o d e rn R e g im e (Lea O rig in e s d e la F ra n c e C o n te m p o ra in e : Le R égim e M o d e rn e ). S e ttin g a s id e th e p u b l ic p ro c e s s io n s a n d ac­ c la m a tio n s . b e c a u s e l ik e h im . i t m e t o n ly o n c e. a n d in w h ic h 66 67 68 69 70 71 72 73 74 77 . fo r th a t m a tte r . so h e re i t is in th e o rig in a l: '. T a in e . N or w a s t h s i n i t i a t i v s ta k e n o v e r b y a n y o th e r p ro v in c e . v o l. a n d so l­ e m n ly p r o f e s s y o u r f a ith in i t? ' Its a im w a s 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 ls o an o a th o f f id e lity o f a o rta . L a tin w o rd fo r 's te e r m a n '. th o u g h i t w a s n e v e r o ffic ia lly d is s o lv e d . th e f i r s t m a in g e s tu r e in th a t d ir e c tio n w a s th e c e re m o n y th e o p e n in g o f th e n e w R e ic h s u g in th e g a r­ ris o n c h u r c h o f P o tsd a m on 21 M a rc h 1 9 3 3 . a n d enacted in th e C o n s titu tio n of 1 8 7 1 . th e s ta te s m a n h a s to b r in g to g e th e r d iv e r e e n a tu r e s in to e u n ifo rm t e x t u r e a n d on th a loom of tim e . t h e la t t e r t u r n e d to th e P e d e re l S u p re m e C o u rt in L e ip z ig for a r b it r a t i o n . C a rl £»chmitt h a d b e e n m a d e a m e m b e r o f t h a t c o u n c il by M in is te r P r e s id e n t H e rm a n n G b rin g a t th e su g g e s tio n of S c h m itt’s f r i e n d a n d co lle ag u e . See H . on 2 0 J u l y 1 9 3 2 . T h e o ffic ia l fig u r e s fo r th e c o u n tr y . I t b ro u g h t to g e th e r th e N o rth a n d th e S o u th G e rm a n s ta te s to so J v s a n y c o n fJic tu a l i s s u e s e it h e r am ong th e m s e lv e s o r w i t h th e Im p e ria l A d m in is tr a tio n a n d to d e c id e a n y c o n s titu tio n a l a m e n d m e n ts . I. N o tw ith ­ s ta n d in g .w i d e p a r ti c i ­ p a tio n i n th e tw o e v e n ts w e ra 9 5 . T he G e rm a n p la y u p o n w o rd s in tftis e e n te n c e c a n n o t b e re p ro d u c e d in B n g iis h . a t tim e s H itle r h im s e lf f e lt t h e n e ed o f le g itim iz in g h is Own p o w e r. to w e a v e th e l iv in g f a b r ic of a s in g le so c ie ty fro m th e w a r p a n d th e w oof o f h u m a n q u a litie s ( 3 1 0 e 31 le ) .. 1 o f a n y e d itio n . A c tu a lly i t i s n o t t h s s te e rm a n t h a t i s th e m o st s a tis f a c ­ to ry a p p ro x im a tio n o f a sta te s m a n in P la to 's d ia lo g u e . th e f e d e r a l g o v e rn m e n t o u s te d th e P r u s s i e n g o v e rn m e n t. French o r B n g iish . a s g u b e r n a r e m e a n s to s te e r . F o r th e C o u rt's d e c is io n se e n o te 5 5 a b o v e. 5 6 . A s a m a tte r o f fa c t T a in e lik e n s N ap o leo n to a 'c o n d o ttie re '. M e n tio n e d a b o v e (s e e n o te 9 ). I t c a m s to a n e n d w ith th e d is s o lu tio n o f th e B m p ire in N o v e m b e r 1 9 1 8 . p .

J a m e s von M o ltk e . I t w a s b a s e d on a n d m ad e fu ll a n d s u c c e s s fu l u se of t h i s p r i n c i p l e . a lth o u g h as th e m o ra l p h ilo s o p h e r G eorg Sim m el ( 1 8 5 8 1 9 1 8 ) u se d to s a y . e tc . th e a im e d -a t c o rre s p o n d e n c e b e tw e e n th e c o n te n t of th e re g u la tio n a n d in d iv id u a l c o n d u c t w a s a tta in e d . a n d r e tu r n e d to G e rm a n y a s a c o m m u n ist. h e w aa ap ­ p o in te d P r e s id e n t o f th e P e o p le 's C o u rt w h ic h w a s to tr y am ong o th e rs th e c o n s p ir a to r s of th e 2 0 J u l y 1 9 4 4 p lo t a g a in s t H itle r. In F re n c h in th e o rig in a l. i t w a a a tte m p te d . D u rin g W W I. a p p r e c ia te d h is ta le n t o f d e b a te r . law p r o fe s s o rs . N o n e th e le s s. T he tre n d is n o t a s p e c ific a lly G e rm an p ra c tic e : i t m ay be e n c o u n te re d in th e W e s te r n w o rld a s a w h o le . H itle r c a lle d h im 'o u r V is h in s k y '. in 1 9 2 5 . P r e i s l e r h a d b e e n ta k e n p r is o n e r b y th e R u s s ia n s . T he d a n g e r h e re is th a t by a sso c ia tio n m e r e ly e x p r e s s e d fe e lin g s m ay b e con­ s id e re d c rim e s . m e m b e rs of th e B ar. in A u g u s t 1 9 4 2 . a n d b ecam e a la w y e r . legal c o u n s e ls . o n e m ay h a te som eone o r so m e th in g th o ro u g h ly a n d do n o th in g a b o u t it. P r e i s l e r d ie d b e fo re h e c o u ld p ro n o u n c e th e se n te n c e a g a in st th e p lo tte r s . as a n e v e r re n e w e d a tte m p t to m a k e th e law r e fle c t th e s h if tin g so cial i n te r e s ts a n d b e lie fs . and th e young fo rc e s of th e R eich e m b o d ie d in th e n ew c h a n ­ c e llo r. H e b e c a m e a B o lsh e v ik c o m m issa r th e re . T he j u r i s t s as ju d g e s . p r o s e c u to r s . h e jo in e d th e N atio n al S o c ia list G e rm an W o r k e r s ' P a r ty . w e re e ith e r c iv il s e r v a n ts o r s u b je c t to th e r e g u la tio n s a p p lic a b le to th e C iv il S e rv ic e a s a w h o le . w h e n a f a llin g b e am c r u s h e d 75 76 77 78 79 78 . a n d w e re m e a n t to re g u la te in d iv id u a l b e h a v io u r. By 1 9 3 4 .NOTES P r e s id e n t H in d e n b u r g s y m b o lic a lly m e d ia te d b e tw e e n th e h is to ric a l g lo ry a n d g r e a tn e s s o f P r u s s ia n m o n a rc h y . e v e n in th e a b s e n c e of a n y a ctio n th a t m ig h t b e d ir e c tly c o n n e c te d w ith th e m . T h e n . A dolf H itle r. w h ile one of h is v ic tim s . th e w h o le t r ia l w a s tu r n e d in to a f a rc e a t th e e x p e n s e of th e ta x -p a y e rs * m o n ey a n d of A m e ric a ’s p re s tig e a b ro a d . h e w as a lre a d y p ro m o te d to th e office o f S ta te S e c re ta ry in th e R eich M in ie tr y of J u s tic e . T h e n . o f e x p lo itin g th e v a g u e n e ss in h e r e n t in a b s tr a c t leg al n o tio n s in o r d e r to re d u c e th e m to n o th in g n e s s . H ere C a rl S c h m itt q u o tes R o lan d P r e i s l e r ( 1 8 9 3 . T h e m o st n o to rio u s re c e n t e x a m p le th a t com es to m in d is th e A m e ric a n -c o in e d 'h a te c rim e '. th a t is .1 9 4 5 ) w h o m ad e th a t d e c la ra tio n in h is q u a lity of c h ie f p e r s o n n e l o ffic e r in th e P r u s s ia n M in is tr y of J u s tic e . A p e r ti n e n t e x a m p le w a s th e US P re s id e n t's te le v iz e d de fen c e o f 1998 a g q in s t th e S e n a te ’s a c c u s a tio n s of im p ro p e r b e h a v io u r. In th a t w a y . U ltim a te ly . u s in g e th n ic I d e n tity a s th e m o ral g ro u n d s fo r a c o n tin u o u s flow of e n a c tm e n ts w h ic h w e re fo rm u la te d in th e m a n n e r of th e m ilita r y c r im in a l c o d e. re a d la w .

w ith th e p o s s ib ility of a few h e a d s ro llin g le g a lly . w h e re th e o n ly e s s e n tia l s h i f t w a a fro m p r o le ta r ia n in te r n a tio n a lis m to e th n ic id e n tity . d e c la re d th e c iv il s e r v a n t d ir e c tly r e s p o n s ib le to H itle r as 'e x e c u to r ' of th e w ill of th e S ta te c a r r ie d by th e P a r ty . p a r ti c u l a r ly th e f i r s t th ir te e n books. H itle r w a s in v ite d to te s tify on th e t h i r d d a y of th e t r ia l . a ls o k n o w n a s th e C iv il S e rv ic e A ct. T h a t is to s a y . a s a r e s u lt. W h ic h w o u ld n o t do a w ay w ith p o s itiv e law b u t on th e c o n tra ry f a c ilita te i t s f u r t h e r d e v e lo p m e n t on a s im p lif ie d . he w o u ld s e t up s ta te t r i b u n a l s w ith in h is legal g o v e rn m e n t. I am te m p te d to c o n s id e r it j u s t an in d ir e c t in v ita tio n to th o s e c o n c e rn e d to re a d M o n te s q u ie u 's S p ir it o f th e L aw s. T h is q u e s tio n w a s ra is e d by T h o m a s H obbes ( 1 5 8 8 . T he q u o tatio n is u n id e n tif ia b le . 4 8 ) sh o u ld b e in te r p r e te d in t h i s lig h t. em p o w ere d to p a s s ju d g m e n t on th o s e r e s p o n s ib le fo r th e m is f o r tu n e s of th e n a tio n .1 6 7 9 ) in c h a p te r 2 6 . in w h ic h b y c o n ju r in g u p th e God A lm ig h ty . b io lo g ic al b a s is . e ac h n a tio n haa its o w n law a n d s y s te m of ju s tic e . I h a v e lin g e re d on th e a e d e ti i ls in o r d e r to p o in t to th e eaae w ith w h ic h o n e c o u ld s w itc h fro m o n s ideology to th e o th e r . Jo a c h im F eet h a s in p a r t r e c o n s titu te d H itle r 's o a th on th e o c ca sio n . It a ls o m a d e th e c iv il s e r v a n ts re s p o n s ib le fo r re p o rtin g a c tiv itie s h o s tile to th e S ta te to h is p e rm a n e n t u n d e r -s e c r e ta r y o r to th e h e ad of th e R e ic h C h a n c e lle ry . 79 . 25 S e p te m b e r 1 9 3 0 . M in is te r L am m ers. C a rl S c h m itt's s t r e s s on th e la t t e r a s th e sin g le m o st im p o rta n t c h a r a c te ris tic of th e N a tio n a l-S o c ia lis t s y s te m (p. 80 81 82 83 THE QUESTION OF LEGALITY L ie u te n a n t W ilh e lm S c h e rin g e r w a s one of th e th r e e y o u n g R e ic h s w e h r o ffic e rs o f th e g a r r is o n a t U lm p u t on t r i a l a t th e F e d e ra l H igh C o u rt in L e ip z ig fo r m a k in g p ro p a g a n d a fo r th e NSDAP in s id e th e A rm y . non v e r it a s f a c it legsm ). T he law of 26 J a n u a ry 1 9 3 7 . S w e a rin g an o a th to H itle r a s th e r e p re s e n ta tiv e of th e S tate c a r r ie d b y th e P a rty w a s a lso m ad e c o m p u lso ry b y th a t la w . page 133 of th e L a tin v e rs io n of h i s L e v ia th a n . a n d r e fle c t on th e c o n te m p o ra ry s itu a tio n in G e rm a n y in th e lig h t of th e F re n c h t h in k e r 's r e m a r k s . aa w e ll a s th e e x c lu sio n fro m th e C iv il S e rv ic e of a ll th o s e w ho a t th e tim e of a p p o in tm e n t h a d b e e n e x c lu d e d fro m o r b e en re je c te d by th e P a rty . a fte r he h a d d e c id e d th a t i t w a s p o w e r a n d not t r u t h th a t m a d e th e law ( a u to r ita s . h e a s s u r e d th e ju d g e th a t if h e c am e to p o w e r le g a lly . L atin e x p re s s io n m e a n in g 'w h o ia to ju d g e '.NOTES h im u n d e r d u rin g a n a ir r a id o v e r B e rlin .

p p .NOTES T h e q u o U tio n h a s b e a n tr a n s la t e d e s i t ie re p ro d u c e d b y C a rl S cbntiU in h i s t e x t . p . N o a tte m p t h a s b e e n m a d e to h a rm o n iz e i t w i t h th e t e x t a s i t a p p e a rs in th e B n g iish tr a n s la tio n o f E conom y a n d S o c iety . 80 . N ew Y o rk . 8 9 S . 1 4 th e d . See L e n in . 3 1 . C ollected W orka. v o l. II. vol. 1 9 6 6 .. 1 9 6 8 . M oscow . 9 6 9 7 .

3 0 . a s p r i n c i p l e of G e rm a n n a tio n a l-s o c ia lis t s ta te . D e m o cra t p o litic ia n . 4 3 . 7. 40 e th n ic id e n tity . J u s tu s ( b . 4 . 49 H egel. h i s P h ilo so ­ p h y o f R ig h t ( 1 8 2 1 ). 81 . O tto ( 1 8 7 2 . a n d a d ­ m in is tr a tio n of ju s tic e . 3 6 . le a d e r o f B a v a ria n P e o p le's P a rty . c a s t of m in d .INDEX a lle g ia n c e . 5 7 . o rg a n iz e d p o lit­ ica l p o lic e a n d f i r s t G e r­ m an c o n c e n tra tio n c am p at O ra n ie n b u r g . NSDAP o ld g u a rd . 4 9 . 44 B ra u n . P r u s s ia n M in is te r of th e I n te r io r a n d M in is te r P r e s id e n t.1 9 4 6 ) R e ic h sta g d e p u ty fro m 1 9 2 8 . P r in c e O tto von ( 1 8 1 5 . aa o rg a n iz a tio n a l p r i n c i p l e . lifte d b a n on H itle r 's p a r ty a n d n e w s p a p e r a fte r B ism a rc k . 6 . 4 8 . S. a d m i n i s t r a t i v e a n d R om an la w s c h o la r. 1 6 . 3 . SO G d rin g . 41 a u to . 5 0 . G e rm an p h ilo s o p h e r a n d p o ly m a th . j u r i s t . 63 c o n s titu tio n . 4 8 . v s . W e im a r. 4 8 . m o ral r e s is ta n c e of. 58 c iv il w a r. 6 . H e rm a n n ( 1 8 9 3 . 3 5 . la w y e r. 3 7 . 4 2 . 3 8 . 19. l 8 7 8 ) . 55 c iv il s e rv ic e . 9 . l 8 9 9 ) . 4 0 H eck. J o h a n n e s ( b . 3 7 . a n d p le b is c ite . C h ief B u rg o m a s te r of M u n ic h fro m M a rc h 1 9 3 3 . 4 2 . e n o b le d in . H e in ric h ( 1 8 6 8 . 12. c iv i l . P h ilip p ( 1 8 5 8 . 3 3 . 5. 7. B ism a rc k 's f e d e r a l.1 8 3 1 ) . 48 F r e i s l e r . 27 P ra n k .1 9 4 5 ) .1 8 9 8 ) . 3 8 . 34 . 60. lib e r a l. R e ic h M in is te r . L o u is. 4 3 .1 9 5 5 ) . 44 H e d em a o n . legal s c h o la r . G eorg W ilh e lm F r ie d ­ r ic h ( 1 7 7 0 . 2 4 . 18. 5 . 17. 14. 3 9 . 10. 56. 2 8 2 9 . 4 3 . R o lan d ( 1 8 9 3 . 1 3 . 4 8 . 5 . 4 4 . a n d ra c e . 1 0 -1 1 . 3 1 . B a v a ria n a n d th e n R e ic h M i n i s t e r of J u s tic e fro m 1 9 3 3 .1 9 4 3 ) . 19 C a n et. 5 d e m o c ra c y : id e a l. 3 9 . SS le a d e r. K a rl ( b .a d m in is tr a tio n . i ts P r e s id e n t fro m 1 9 3 2 . 2 0 . 1 9 n . e x p e r t in s ta te a n d c h u rc h la w . la w y e r. IS e le c tio n s . p ro ­ v is io n a l [e m p o w e rm e n t la w ]. 6 . 1 3 . 56 D a w e s P la n . IS . 8 .l8 9 5 ) . 51 [e v e ry o n e a g a in s t e v e ry o n e e ls e ].1 9 1 2 . R e ic h sta g d e p u ty fro m 1 9 3 0 . 2 7 -2 8 P ie h le r. se le c tio n . M in is te r P r e s id e n t of B a v aria fro m 1 9 2 4 . 31 H e ld . 6 1 . M in ­ i s t e r P r e s id e n t of P r u s s ia . 2 0 . 1 7 -1 8 . P ru s s ia n a ta te a m a n a n d R sich C h a n c e llo r. 32. 39 17. 27 d e p o litic iz a tio n . 4 . c o m m u n a l p o lic y e x p e r t. SO. 5 8 . fo u n d ­ e r o f th e R e ic h A cad em y fo r G e rm a n L aw . H ans (1 9 0 0 -1 9 4 6 ). 57 . 51. 50 H e ck e l.1 9 3 8 ) . a n d p o litic a l le a d e r­ s h i p .

R u ss ia n B o lsh e v ic k r e v o lu tio n a r y . 8 . 3. F re n c h p h ilo s p h e r a n d a u th o r . 4 0 . 4 3 .1 9 2 4 ) . 34. 16. 7 . L u cien ( 1 8 6 0 1 9 3 2 ). a n d ju s tic e . 16. 6 3 .1 0 . (1 7 8 2 -1 8 5 4 ). a d m in is ­ tra tio n of la w . of th e NSDAP. tra n s fo rm a tio n of law in to . H itle r's p r iv a te s e c re ta r y . F é lic ité .9 . 4 7 . 6 3 . 4 8 . con­ s titu tio n a l. id e a of. 58 H ir ts ie f e r . M a rie -M a d e le in e 55n ■ H e ss. v s. 5 9 . F ie ld M a rs h a l. 5 6 . H e in ric h ( 1 8 7 6 1 9 4 1 ). 60 L am m ers. 'd is p o s itio n '. a n d p a r lia ­ m e n t. 11. j u r i s t .1 9 6 2 ) . 6 3 . 18. R u d o lf ( 1 8 9 4 . 5 7 . 5 6 . p o litic a l. 9 . 5 1 . 3 5 . a n d p le b is c ite . Im m a n u el ( 1 7 2 4 . 5 9 . as w eapon. 4 1 .1 8 7 3 ) . a r re s te d a n d s e n t to c o n c e n tra tio n cam p in S e p te m b e r 1 9 3 3 . 39 le a d e r s h ip . 63 L o u is N ap o leo n B o n a p a rte ( 1 8 0 8 . 6 1 . w aa o u s te d in M a rch 1 9 3 3 . 9 . le a d e r of NSDAP a n d G e rm a n C h a n c e llo r. 5 9 . e lim in a tio n of. 9 . H a n s ( b . 6 0 . A d o lf ( 1 8 8 9 . 6. th e n L e a d e r's d e p u ty a n d R eich C a b in e t M in is te r . p o s itiv e s o u rc e of. 2 5 . trad«*u n io n o rg a n iz e r. H a n s H e in ric h (1 8 7 9 . 19 H itle r . 5 8 . a n d r e s p o n s ib ility . le g itim a c y . 15. 58 le g is la tiv e : b o d y . 58 K a n t.ZNOBX th e la tte r'» re le a s e from p r is o n . V la d im ir Ily c h U ly a­ n o v ( 1 8 7 0 . Paul (1 8 3 8 -1 9 1 8 ). as co re c o n c e p t of la w . th e o re tic ia n of th e s ta te law of th e Second G e rm a n R e tc h . 5 7 .1 9 8 7 ) . a n d ille g a l­ ity . v s.1 8 0 4 ) . G e rm a n p h ilo s o p h e r . 13. 2 0 . 4 6 . 5 7 . 4 4 . 63 L a m e n n a is. 57 ju s tic e . 5 L e n in . 61 K e lse n . th e n E m p e ro r. F re n c h P r e s id e n t. v s . 3 5 . a n d leg al o b lig a tio n . 5 5 . r u lin g . 33 L a b e r th o n n iè re . 40. 5 9 . P r u s s ia n M in is te r of P u b lic W e l­ fa re . 6 0 . 16 L aband.1 9 4 5 ) . 9.4 1 . R o b e rt d e 82 . 19 d ’H e n d e c o u rt.s o c ia lis t c o n c e p t of. 7. 63 le g isla tio n . 39 le g itim a tio n . p re v io u a iy s ta te of­ fic ia l in th e R e ic h M in is ­ t r y of th e I n te r io r . 2 3 . 5 . h is to r ic a l. 2 8 . 5 7 . hi# book M y S tru g g le [M e in K am p f]. 3 9 . a b se n c e of. 5 8 . 14 le g a lity . h e ad of th e C o u n c il of th e P e o p le 's C o m m iss a rs a fte r O c to b er 1 9 1 7 . 2 8 . legal sc h o la r a n d le a d in g e x p o ­ n e n t of legal p o s itiv is m . 4 6 . 6 2 . 5 8 . p o litic ia n . 6 1 . P au l von ( 1 8 4 7 1 9 3 4 ). fro m a fu n c ­ tio n a lis t b u r e a u c r a tic p o in t of v ie w . R e ic h S u p re m e C o m m a n d e r o f A rm e d F o rc e s ( 1 9 1 6 1918} a n d P r e s id e n t from 1 9 2 5 . re c o n c ilin g c a th o lic C h ris tia n ity w ith m o d e rn ­ ity . 16. 'm o to riz e d '. 7. C h ief of th e R e ic h C h a n c e lle ry fro m 1 9 3 3 . 3 4 . n a tio n ­ a l. 21 H in d e n b u rg . b y g o v e rn ­ m e n t. C h r ie tia n F re n c h t h in k e r a n d e d u c a to r. l 8 8 1 ) . I S . h ie r a r c h ic a l o r d e r o f. p o s s ib ilitie s of. 3 7 . 6 0 . 5 8 . e x ­ e c u tiv e . 58. 8 . 4 .

3 8 . a n d p e o p le 's w ill. 37 p o s itiv is m : leg a l. m em b e r of P r u s ­ sia n S ta te C o u n c il. 7 R itte r b u a c h . SO re fe re n d u m . p o litic ia n o f th e e x tre m e r ig h t fa c tio n of th e C a th o lic C e n tre P a rty . P ra n z von ( 1 8 7 9 1 9 6 9 ). 9 'q u i s j u d ic a b it? '. a n d n o rm a l s itu a tio n .INDEX 60 i L u th e r . F re n c h a u th o r a n d so c ial th in k e r . H a n s ( b . 62. th e c la s s ic th e o r e t­ ic ia n of G e rm an a d m in is ­ t r a t i v e la w . C o rsic an o ffic e r. 10 re v o lu tio n : c o m m u n is t. V ic eC h a n c e llo r u n t il 1 9 3 4 . 4 8 . 12. 48 n o rm s . in ­ s tr u m e n ta l in H itle r's a s c e n t to p o w e r. 4 9 . 17. m e m b e r o f th e P r u s s ia n U n d ta g ( 1 9 2 1 . 2 3 . m in is te r ia l c o u n s e llo r in th e R eich M in is tr y of th e I n te r io r . its c o n g re ss a s p a r lia m e n t. a n d n o rm a liz a tio n . 62 M a y e r. 15 M o n te s q u ie u .v . SO. 61 M a iw a ld . 2 1 . I S . 10. 1 8 9 0 ). n a tio n a l.s o c ia lis t. 47 p lu r a lis m . 2 1 . to ta lita ria n . 34 p a r ty : n a tio n a l-s o c ia lis t. O tto (1 8 4 6 -1 9 2 4 ) . H e lm u t ( 1 8 9 5 . c o n s titu tio n a l a n d p u b lic law s c h o la r. Sn n e u tr a li t y . 7. 16. its ro le in p o litic a l u n i ty . legal c o u n se l of th e NSDAP d i s t r ic t of G r e a te r B e rlin . d e le ­ g ate M in is te r P r e s id e n t in M a g d e b u rg .3 7 . lib e r a l. 5n ['m ig h t m a k e s r ig h t']. U . 1 6 .l 8 9 6 ) . 3 2 . P a u l ( b . 16 o ffice s: h ig h .1 9 3 2 ) . 5 1 . 50. p o litic a l. 4 9 . m in is te r ia l c o u n ­ s e l. S ta te S e c r e u r y o f th e R e ic h M i n i s t r y o f th e i n te r i o r . 5 1 . 4 .1 9 5 5 ) . 8 . G e rm a n th eo lo g ian a n d re lig io u s re fo rm e r. 3 N ic o la i. a c tiv e in d e fin in g th e p u b lic law of th e n ew re g im e . 3 . la w y e r. b a ro n d e ( 1 6 8 9 1 7 5 5 ). 36 N e u b e rt.l 9 0 0 ) . C o n su l. S. 5 5 . j u r i s t . Serge. C h a rle s de S eco n d ât. 32 M e d ic u s . 47 n a tio n a l-a o c ia lis m : ju s tic ia r y c h a r a c te r. m ode of m a n ife s ta tio n .) of D as n s u e d e u ts c h e R êich srech t [T he N ew G e rm a n R eich L aw ]. 4. l a w y e r. a n d th e fa c tu a l. c o -e d ito r w ith N e u b e rt ( q . 3 6 . 51 N apoleon B o n a p arte ( 1 7 6 9 1 8 2 1 ). of th e R e ic h . 61. la w y e r. 62 p u b lic la w . 6 n P lato (4 2 7 7 -3 4 7 BC). 8 -9 P a p e n . 1 2 13. a n d B m p ero r of th e F re n c h fro m 1 8 0 4 to 1 8 1 5 . 57 P f u n d te r. M a rtin ( 1 4 8 3 .1 5 4 6 ) . 4 8 . a n d n o rm a tiv is m . 6 2 m o n o p o ly : o f th e p o litic a l. G re ek p h ilo s o p h e r : h is S ta te s­ m an . J u rid ic a l. H e rm a n n ( b . 4 8 . j u r i s t . d ire c to r of B e rlin 's p u b lic p r o s e c u to r 's office. P ra n z A lb re c h t (b . 83 . 6 2 . 14. m in is te ria l d ir e c to r in th e R eich M in is tr y of th e I n te r io r . S n . l 8 8 5 ) . S. G e rm a n .

14. 11.1 8 6 1 ) . W a lte r ( 1 8 6 1 . le a d e r-. I I . 34 S c h m o lle r.1 9 1 7 ) . F a s c is t. co n ce p t of. 39 S o m b a rt. 61. its le g a lity v s. 58 t r a n s it i o n . so c ial th in k e r a n d p ro fe s s o r of a d m in is tr a tiv e sc ie n c e .4 0 . 3 1 . H e in ric h ( b . 2 1 . s ta te a n d . K u r t v o n . 4 2 . 3 2 . 84 . 2 0 . 2 6 2 7 . in f lu e n tia l in th e f o rm u la tio n of th e P r u s s ia n C o n a titu tio n of 1850. B o lsh e v ik . P r u s s ia n M in ­ i s t e r o f th e In te r io r d u r in g W e im a r. 2 4 . W e r n e r ( 1 8 6 3 . 39.INDEX c o . l 8 6 8 ) . 32 s u p e r v is io n . 3 2 3 8 . S o c ia l-D e m o c ra tic p a r lia ­ m e n ta ria n . 8 . 2 1 . l ib e r a l d e m o c ra tic . and le a d e r s h ip . 12 W a g n e r. j u r i s t . F . 2 6 . 4 3 u n ity . 3 3 . 4 1 . 4 1 . a d m in is tr a tiv e . 4 6 T a in e . a d v is e r to K in g F re d e ric k W illia m IV. ( 1 8 8 2 1 9 3 4 ). 4 8 . 5 . 3 0 -3 1 . la w . 1 9 . e x p e r t in s ta te a n d in te rn a tio n a l la w . 3 4 . a s ­ s a s s in a te d on 30 J u n e 1 9 3 4 . 15.1 9 3 7 ) . a rm y g e n e ra l. 3 5 . a n d c o u n se l in th e G e rm a n F o re ig n O ffice. h is to r ic a l e co n o m ist a n d so c ial th in k e r . 1 3 . M ax ( 1 8 6 4 . 2 1 . 15 R om ano. 4 3 .d y n a s tic . 1 3 . 1 8 . 4 4 . 9. a d m in is tr a tiv e m a c h in e of. 13. 4 2 .1 9 4 6 ) . 3 7 . fo rm e r p o litic a l a d v is e r to th e R eich P r e s id e n t.J .' 1 9 1 7 ). 52.3 9 S te in . S a n ti ( 1 8 7 5 . 17. 1 1 -1 3 . 4 4 . G u s ta v ( 1 8 3 8 . m o n a r­ c h ic a l. of s ta te . 2 0 . c o n s titu tio n a l law e x p e rt. 1 5 . 6 T rie p e l. 20. 13. fe d ­ e ra l. 4 . L o ren z v o n ( 1 8 1 5 1 8 9 0 ). of R e ic h . le a d ­ e r of P r o te s ta n t a g ra ria n c o n s e rv a tis m in P r u s s ia . to ta l. a n d p o litic a l u n ity . b o u r­ g e o is -le g a l. a g e n ts of. 3 0 . stro n g . 33 s ta te . 13. c o n s titu tio n ­ a l.4 5 . 3 1 . c r itic . b a ro n vom u n d zu m ( 1 7 5 7 . P r e s id e n t of th e Ita lia n C o u n cil of S ta te ( 1 9 2 8 1 9 4 3 ). 3 0 . 19. G e rm a n th e o ry of. 3 4 . H e in r ic h . c h a r a c te r is tic fa c to rs of. p o litic a l. 7. as L e v ia th a n . a n d fe d e ra l o r­ g a n iz a tio n . I S . e th n ic Id e n tity a n d . le g is la tiv e . a u th o r ita r ia n . 3 3 . 6.1 8 9 3 ) . 4 4 .1 9 . 19.s o c ia lis t. A dolf ( 1 8 3 5 . 3 9 . 42 S im o n s. 4 4 .1 9 4 1 ) so c ial t h in k e r a n d p o lit­ ic a l e co n o m ist. 18. 3 7 .1 9 2 0 ) . 32 W e b e r. H ip p o ly te ( 1 8 2 8 . 3 2 . legal a c h o la r. 47 to ta l w a r.2 5 . ( 1 8 0 2 . C a rl ( 1 8 7 5 .1 9 5 2 ) . 11. 18. 2 2 . p s y c h o lo g is t a n d h is to r ia n . tr ia d ic s t r u c tu r e of. P r u s s ia n a d m in is tr a tiv e o fficial a n d re fo rm e r. c h ie f sp o k e sm a n of th e P r u s s ia n C a b in e t in th e a b se n c e of O tto B ra u n . n a tio n a l. 13. 2 2 . 3 5 . 2 5 . 32 S e v e rin g . 3 7 . 21 S c h le ic h e r. 3 8 . 38 S te in . 13 S U h l.e d ito r of Z eita ch rift fü r P olitik [R e v ie w of P o lit­ ic s ] a n d D er deutache Ju riatenazeitnng [T he G e r­ m an J u r i s t 's J o u rn a l]. 2 4 . 28. F re n c h p h ilo s o p h e r. 13.1 8 3 1 ) .

INDEX so c io lo g ist. 6 1 . 6 0 . h is to ric a l e co n o m ist a n d p o litic a l p h ilo s o p h e r. H er in te re sts in the com parative s tu d y o f social in s titu tio n s h a ve led h e r m o re re c e n tly to the analysis o f the rec u rre n t phenom enon o f civilizational decline. .6 2 A b o u t th e E d ito r SIM O N A D RAG H IC I is a E u ro p ean -A m erican social scien tist w ho am ong o th er things ho ld s a PhD degree in socioiogy fr o m the L iniversity o f T exas at A u s tin .

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