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Rechtsstaat or dictatorship? First published
as Rechtsstaat oder Diktatur? in Die Neue
Rundschau(Berlin: S. Fischer Verlag, 1929) pp.
721–735. A second, enlarged version appeared
in the series Recht und Staat in Geschichte und
Gegenwart(vol. 68) published by J.C.B. Mohr,
Tubingen: 1930. This translation is based on the
second edition which is included in Hermann Heller.
Gesammelte Shriften(ed. Martin Drath et al.) Leiden:
Sitjhoff, 1971
Hermann Heller
Published online: 28 Jul 2006.

∗
To cite this article: Hermann Heller (1987) Rechtsstaat or dictatorship? First published as Rechtsstaat oder Diktatur? in
Die Neue Rundschau(Berlin: S. Fischer Verlag, 1929) pp. 721–735. A second, enlarged version appeared in the series Recht
und Staat in Geschichte und Gegenwart(vol. 68) published by J.C.B. Mohr, Tubingen: 1930. This translation is based on the
second edition which is included in Hermann Heller. Gesammelte Shriften(ed. Martin Drath et al.) Leiden: Sitjhoff, 1971,
Economy and Society, 16:1, 127-142, DOI: 10.1080/03085148700000010

To link to this article: http://dx.doi.org/10.1080/03085148700000010

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 Rechtsstaat or dictatorship?"

Hermann Heller
Translated by Ellen Kennedy

Until the end of the world war the Rechtsstaat was a self-evident
truth in Europe. Even where the Rechtsstaat did not exist at all,
or was not fully realised, its claims were hardly challenged. Even
the marxist dictatorship of the proletariat was understood by the
socialist parties until the Bolshevist revolution more or less in a
democratic Rechtsstaat sense. Only the small, uninfluential groups
of French and Italian syndicalists counted in this period as de-
clared, although very unclear, opponents of the Rechtsstaat. This
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situation has changed fundamentally within the last ten years. The
question Rechtsstaat or dictatorship has been seriously put to dis-
cussion. And even if it should not be taken too seriously that a
well-known German constitutional lawyer has described dictator-
ship as the specifically modern state form, and the Rechtsstaat as
an outmoded constitutional cliche, the possibility of such an
assertion is nevertheless symptomatic.
What does this sudden and radical transformation mean? Can
the political cataclysms in Italy, Spain, Albania and Yugoslavia
and in other smaller countries and the dictatorial ambitions among
us, in Austria and elsewhere be subsumed under a common name
at all? Does the rising number of dictatorships in Europe mean the
end of the Rechtsstaat and its replacement by a state form which
better conforms to contemporary social existence? Which disloca-
tions in social reality find their expression in these political up-
heavals and intellectual transformations?
We want to restrict our inquiry t o the form of dictatorship that
goes under the flag of fascism in western Europe and which is the
only relevant form of dictatorship here. The Bolshevist dictator-

*First published as Rechtsstaat oder Diktatur? in Die Neue Rundschau (Berlin: S.

Fischer Verlag, 1929) pp. 721-735. A second, enlarged version appeared in the series
Recht und Staat in Geschichte und Gegenwart (vol. 6 8 ) published by J.C.B. Mohr,
Tubingen: 1930. This translation is based on the second edition which is included in
Hermann Heller. Gesarnmelte Shrfften (ed. Martin Drath et al.) Leiden: Sitjhoff, 1971
'Rechtsstaat' cannot be rendered adequately into English. It remains throughout this
translation as a term of art which means both 'the rule of law' and a state form in which
law is the governing institutional model.

Economy and Society Volume 16 Number 1 February 1987

0 RKP 1987 0308-5147/87/1601-0127 82
 128 Hermann Heller

ship, in the last analysis only a reprise of Peter the Great's govern-
mental system, never faced the alternative, Rechtsstaat or dictator-
ship, and can be left out of our considerations.
The answers t o these questions assume above all clarity about
the social, political, and intellectual foundations of the Recbtsstaat.
For there can be no doubt that all these European dictatorships
and their ideologies have only the negation of the Rechtsstaat in
common. Their social foundations, however, can only then be
grasped when one realises that cultural advance always implies an
increase in the division of labour and that geographically distant
social groups become dependent because they have to trade with
one another. As the division of the labour and commerce increase,
a commensurate measure of commercial security becomes neces-
sary which is as a whole identical with what a jurist calls legal
security. Commercial security or legal security become possible
through an increased level of predictability and regularity in
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social relations. Such predicability can only be reached if social,

above all economic, relations are supported by an increasing mea-
sure of integrated order; that is, if they are regulated from a cen-
tral territorial point. The provisional production of this rationa-
lization process is the modern Rechtsstaat that has arisen essenti-
ally through ever-increasing legislation, i.e. a conscious process of
regulating social transactions, regulations which exclude self-help
for an increasing number of persons in favour of a central deter-
mination of norms and their implementation.
The sociological, political and juridical meaning of the modern
Rechtsstaat can be grasped if it is understood as the 'rule of law'
in the original sense of its creators. The establishment of Reichs-
kammergerichte in the old German Reich three years after the
discovery of America comprise the greatest success in the history
of achieving domestic peace. This court was intended to settle con-
flicts between the lords and their subjects according to law, and to
exclude force and self-help here as well. The early capitalist
economy in the age of absolutism made a relative independence
of criminal and civil law necessary, a fact that most know through
the legend of the miller of Sansouci. The power of the absolute
prince rested on the predictability of this economy. He could only
free himself from the unpredictability of feudal vassals and do
away with stubborn feudal lords and their innumerable customary
rights by creating a professional army and bureaucracy for himself,
both of which were socially independent of the nobility and
financially dependent on the prince. For that the prince needed a
predictable money economy plus a civil service schooled in the
uniform Roman law with whose help the unpredictable variety of
Germanic law could be overcome. With his soldiers and bureau-
 Rechtsstaat or dictatorship? 129

crats, the absolute prince was gradually able to centralize war-

making, legislation, the courts and administration - activities
which until then had been entrusted to the feudal lords.
As the dictates of the IPechtsstaat and the principles of the rule
of law were popularized taward the end of the eighteenth century,
law came to be regarded as publically pronounced by the prince
and applied - in the words of the great administrative lawyer
Otto Mayer - 'with a professional predictability' by his courts
as the ideal.'
This absolute law, vested with doubly binding power, should
now govern not only the courts and the administration, but 'inter-
ference with the citizen's freedom and property' should from now
on be possible only on the basis of a law. The rationality and pre-
dictability of the state order, however, should be considerably
improved in another direction.
One knows that Montesquieu described the theory of the divi-
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sion and balancing of powers as the foundation of the Rechtsstaat.

Montesquieu saw in the political freedom of the citizen that 'peace
of mind which arises from the confidence each has in his own
~ a f e t y . ' This
~ freedom would be permanently lost if the same
person or the same assembly exercised legislative, executive and
judicial powers at the same time. The reasons such a profound
judge of human beings held this opinion can be cloaked in the
generally valid sociological principle: every uncontrolled human
power succumbs sooner or later to the danger of unpredictable
despotism. For that reason the legislature should be the supreme
power, determining all state activities and - organizationally
separate from an independent judiciary and from the executive
power remaining to the king - it should be entrusted to the
people. As long as the king gave and also abolished laws, as
long as the laws were drifted in a secret council and not even
always published, an element of insecurity and personal unpredict-
ability was always present. This disappears immediately if the
people through its representatives decided on the laws in open
sittings of parliament and thus became themselves the guarantors
of their own freedom.
The history of ideas went parallel with this historical-political
development. Its roots too reach back into the period of the
Renaissance. It is the depersonalized law which one finds just as
much in Kepler, Galilei, Gassendi and Grotius as in Voltaire,
Saint-Simon, Kant and Morx. In the ethical-political sphere, the
maxim reads: Man is free when he no longer obeys other men,
but must only obey the law. 'Law' was increasingly understood,
not as the will of a persanal God or a divine monarch, but as a
norm elevated above all wills and every kind of arbitrariness; the
 130 Hermann Heller

content of this law was t o an increasing extent derived from the

earthly and rationally comprehensible existence of nature and
society.
This 'certainty of legal f r e e d ~ m 'as
~ the classical theorist of the
Rechtsstaat idea, Wilhelm von Humboldt, called it, was the demand
of the intellectually and economically rising Burgerturn at the end
of the eighteenth century. Its political and economic security
required an influence on legislation in a Rechtsstaat with divided
powers; the political ideals of freedom and equality conformed to
its ethic of individual autonomy. That this democracy remained
limited to 'Besitz und Bildung' (the educated and the propertied)
could be justified in an age in which property was still education
and the educated were still propertied.
That had t o change fundamentally in an age of developed and
organized capitalism. A continually increasing proletariat awakened
to consciousness and made the demands of bourgeois democracy
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into its own in the form of social democracy. Organized indepen-

dently in parties and trade unions, it forced its participation in the
legislative of the Rechtsstaat. But with that this popular legislature
became the spirit that the bourgeoisie had called into being and
could no longer check without denying that spirit altogether and
driving away dictatorship with Beelzebub.
Through the round-about way of politics, a proletariat with
equal civil and political rights would, from this time on, also be-
come economically dangerous for the bourgeoisie. The economic-
ally weak try t o bind the economically strong through legislation
and force more social benefits from them or even usurp their
property. Thus capitalism has brought the democratic principle
to those consequences which threaten the dominance of its own
creator, the bourgeoisie. And the limitation of democracy to the
educated and propertied cannot be imposed on today's conscious-
ness, because property is unable to demand respect either through
education or tradition in a period when the transfer of property
and wealth is accomplished at break-neck speed. The bourgeoisie
begins to question the Rechtsstaat ideal and to deny its own
intellectual world.
In Germany the idea of the Rechtsstaat already began to be
emptied out and disowned in the Revolution of 1848. Robert von
Mohl still understood the Rechtsstaat in 1859 as an association in
which the members of the state have a claim 'above all to equality
before the law, i.e. to respect for the life-goals of all without regard
to differences in personal circumstances, and the application of
general norms without regard to the status, class and so forth of
the indi~idual.'~ A few years later this material conception of the
Rechtsstaat had become empty and lifeless, and transformed into
 Rechtsstaat or dictatorship? 131

something formal-technical. From then on until the Revolution of

1918 it was an undeniable tenet that, for example, the equality be-
fore the law guaranteed in Art. 4 of the Prussian constitution of
1850 did not mean the prohibition of legislative arbitrariness,
but only refers t o the civil servant's application of existing law.
With this the ideal of justice lost its authority for the legislator and
declined into a formal principle of administration which required
the predictable application of the law in individual cases without
consideration for the just or unjust content of the law. It had now
become a matter of the law's predictability and bourgeois security,
and no longer of the law's righteousness.
It is symptomatic that now, since the Revolution of 1918,
bourgeois domination can seem to be threatened by the equality
principle of Art. 109 of the Weimar constitution and that it is
right-wing jurists who want to see a Willkiimerbot (prohibition of
arbitrariness) precisely for the legislator with respect t o this
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equality principle and that bourgeois-democratic jurists still insist

against them on the old interpretation. The preeminent political
meaning of this change of position by conservative jurisprudence
can only be understood in the context of the enormous increase
in power which judges in Germany have acquired through an
undoubtedly wrong decision by the Reichsgerichtshof, namely
the decision of 4 November 1925. With this case the judicial
bureaucracy has been able t o claim successfully for itself the
right to review the material content of all laws in accordance
with the Reich constitution and has justified this claim with the
blatantly false assertion that they have always had this right.5 For
the time being the bourgeoisie has created an effective security
against the possibility that rhe popular legislature would transform
the liberal Rechtsstaat into a social Rechtsstaat through the right
of judges - in their overwhelming majority from the ruling class -
to review the laws for their compatibility with the principle of
equality. What will count as equal and unequal is then essentially
determined not just by national and historical considerations, but
also by the socially divergent value judgements of those who are
called on to decide, and it is always better for the justice of the
decision that those who sit in judgement are not convinced of
their own absolute objectivity; only if that is the case will the judge
show the necessary self-criticism.
This oversight of legislature through the judiciary has not, how-
ever, definitely blocked the social Rechtsstaat. It remains a ques-
tion of time when a government dependent on the popularly-
elected legislature will replace these judges with others or do away
with the judiciary as a review organ altogether through legislation.
This transfer of power from the legislature t o the judiciary, which
 132 Hermann Heller

is in many other ways politically questionable, can in no way be

seen as a renaissance of the material Rechtsstaat theory. Apart
from the fact that a legal decision which sets itself up as the legis-
lature violates the fundamental of a division of legisla-
tive and judicial powers, a familiar deflation of the Rechtsstaat
theory is evident precisely in this eccentric interpretation of
equality (i.e., 'recognition of the life-goals of all') that is given as
the standard theory and often, too, in practice today, for example
in respect of Art. 156 RV (Expropriation).
Through the degeneration of the Rechtsstaat idea, the notion of
'the rule of law' would also take on a fundamentally different
meaning. A moral-rational law governs in so far as living persons
apply it to themselves and others. Moral necessity would affirm
selfdetermining freedom. But the legalization of life that served,
finally, economic security could not be anything but a techniciza-
tion that serves the ends of de-individualized people. Law under-
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stood morally retains its relationship to the absolute, despite its

positive state authority, and t o life's determining basis and abyss.
It always remains the subjective decision of a concrete-individual
will. Law merely understood technically by contrast would be
independent of a subjective decision; in logical-mathematicalobjec-
tivity it would rule over people who in their boundless optimism
first hoped to be freed from the misery of individual decisions
through a finally decisive legalization.
Today there are only a very few adherents of this belief in empty
nomocracy, the utopia of eternal peace through irrevocable legal-
ization of all individuality. In its purest form this belief comprises
the often unrecognized basis of a pure theory of law that Kelsen
and his school advance, which sees the Rechtsstaat in every state
and a democracy without leaders as the democratic ideal6 The
empty abstraction of this nomocracy has contributed in no small
measure to the support of dictatorship among a youth that looks
for moral justification and is hungry for reality.
The contemporary sociological position of the Burgerturn appears
today to allow a pessimistic interpretation of this legalization.
Doesn't the demand of the proletariat for a social democracy
mean only the extension of a material idea of the Rechtsstaat to
the order of work and commodities? Among the Burgerturn
there is no power that could give a new content to the old rules.
It denies its own meaning and throws itself into the arms of an
irrational neo-feudalism. Nietzsche, for whom the law is only a
technique of superior men (~bermenschen)to control the herd,
has become its mouthpiece; the master's arbitrariness, however,
stands above all law. For him subjection to the law would be sub-
jection to the herd. He doesn't like any sort of social discipline,
 Rechrssraar or dictatorship? 133

not even culture which spoils his 'noble instincts'. From time t o
time Nietzsche's master-race must conduct themselves like
uncaged beasts of prey. There they savour a freedom from all
social constraints, they compensate themselves in the wilderness
for the tension engendered by protracted confinement and en-
closure within the peace of society, they go back to the innocent
conscience of the beast of prey, as triumphant monsters, who
perhaps emerge from a disgusting procession of murder, arson,
rape, and torture, exhilarated and undisturbed of soul, as if it
were no more than a students' prank, convinced they have pro-
vided the poets with a lot more material for song and praise."
These remarks of Nietzsche's about the 'blond beast', which he
recognizes as the basis of everything 'noble', are found in a treat-
ise on resentment; through the application of his own psychologi-
cal method, it is not difficult to recognize it as the resentment of
the Burger against himself.
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This bourgeois hatred of the law developed earlier in capitalis-

tic France. The degenerate meaning of a formerly honourable
name originated during ths period of restoration and was meant
t o designate the pathetic plight of the bourgeois who, now con-
cerned only for his own economic security, feared and hated all
genuine spirit and every elementary irrational force as a threat
t o this security. At that time too the contrasting literary figure
for the bourgeois originated, the great criminal who has only a
sovereign contempt for law and who was best incorporated in
Balzac's Jean Vautrin. This hatred of the law, at that time a
matter for the genius and for a few romantic literati, has today
become the common property of the high and the petty bour-
geoisie, the common property of the intellectual middle class.
Particularly since the Great War every member of a veteran's
organization is duty-bound t o a genius-religion beyond good and
evil. Every chief master of a guild is deeply disturbed by the
depersonalizing effect of consumer's unions and department
stores.
This neo-feudalism develops an entire mythology as its arcanum
imperii. It contrasts rationalistic worldly salvation through legis-
lation, law without individuality, to a genius-religion of individ-
ualism without law; instead of security and necessity, it values
adventure and danger, undefined freedom and miracles. It invents
irratio as a weapon against ratio and is ready to admire everything
irrational, not in spite of the fact that it is absurd, but because it
is. Unable to master the sociological situation either intellectually
or morally and politically, its supreme article of faith becomes
force in itself, force as an end in itself. Against the philosophy of
the impersonal law, it appears with its philosophy of individual
 134 Hermann Heller

action for the sake of action, with its 'idealism of the act'.
But this aestheticising religion of violence is only bearable for
the strong soul of the superior man (Ubemzensch). The weakness
of the herd needs a particular mythic construction which con-
ceals the yawning emptiness of this religion. At first nationalism
serves this purpose. 'We have created our myth. This myth is a
belief, a passion. It is not necessary that it should become
reality. (. . .) Our myth is the nation' - thus Mussolini a few
days before the March on R ~ m e This. ~ nationalism, which resolves
the tension between the individual and the community through
the flat repression of the former, seems today the most appropriate
religion for mastering the herd. In the name of the nation and its
sacro egoism0 that often seems interchangeable with that of the
ruling class, one numbs an inner voice and drugs oneself with the
phraseology of a supposedly moral community. One is not even
ashamed to call on Christianity for the absolute right of the objec-
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tive spirit of this community. National self-consciousness, once an

awareness of the particular charms of each people, has become a
'conviction', a moral code that sanctifies every possible form or
non-form and functions in power-technical terms to sort out the
purely 'national' herd of sheep from the goats. Combined with
the fact that nationalism usually equates the nation with the
governing organization and the state with the governing, the
glorification of the state which follows from an originally anarchis-
tic genius-religion is transparent. In political practice it is the ideal-
ization of the arbitrariness of the master race and the idealization
of the law for the herd.
The superior man even sees a not contemptible power myth in
the traditional religions. Of course he perceives their Christian con-
tent as positively disturbing. He accords the greatest respect to
Catholicism minus its Christianity as an organization of power,
not to mention the fact that he cannot dispense with the churches
for the sanctification of his rule. 'I am a Catholic, but I am an
atheist' - so goes the pithy formulation of the Action francaise
Catholic Charles Maurras9 which could just as well have come
from Mussolini.
To the disguises of dictatorship must also be counted those
particularly popular slogans today which demand dictatorship as
the means to eliminate democratic-parliamentary corruption.
Democracy certainly has every reason not only to deliver up
every one of its officials who does not have completely clean
hands but also to combat corruption freely in every form. A
democratic politician or civil servant who keeps company with a
racketeer or even takes part in his operations, or an irresponsible
scribbler who defends democracy, without doubt harm this form
 Rechtsstaat or dictatorship? 135

of government more than a hundred left or right radical attackers

could do. It is also absolutely correct that one hears more about
corruption in a democratic Rechtsstaat than in dictatorship, and
it is undoubtedly true that the form of government is responsible
for this. But it would be false to believe that there is less corrup-
tion in a dictatorship than in democracy. Here too the democra-
tic Rechtsstaat is better than it seems and dictatorship seems -
at least from afar - better than it is. As proof of this it is not
even necessary to take much trouble with the Italian reality of
the fascist dictatorship: the worst sort of pocket-lining by high
officials in the state is practically the rule and clean hands are
practically the exception, so that it is almost superfluous to have
made a joke of mangiare, this gorging oneself indulged in by the
fascist elite, and to translate the initials of the national fascist
party PNF bluntly as per necessith famigliare, for family reasons.
It is not even necessary, as I have already said, t o point to these
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incontestable facts. But it must be clear to every judge of human

nature that the completely uncontrolled power of dictatorial insti-
tutions will always lead to such results. In a democratic Recbtsstaat
every competing party has the greatest interest in exposing the
corruption of others; each and every one must place the highest
value on having a clean dhirt. For the same reason the single party
in a dictatorship cannot let the spots on its shirt show. It justifies
the suppresion of all other parties and its exclusive monopoly on
the means of government with the assertion that its members are
an 'elite' and comprise the new aristocracy of the people. It is
forced to maintain this myth by all means and t o suppress every
report of corruption as long as possible. Because a dictatorship has
no watchdogs and the division of powers as well as fundamental
rights have been destroyed, decent elements are also denied the
opportunity of calling the guilty to account in the press, in parlia-
ment or even in the courts. The structure of the democratic
Rechtsstaat and of dictatorship means that charges of corruption
are common in the former and unusual in the latter. The structure
of both political forms means, similarly, that the true extent of
corruption in each stands in inverse proportion t o the number
officially charged.
There is a specific kind of corruption that belongs t o the
peculiar anatomy of a west European dictatorship and which is
more dangerous in the long run to the nation's health than purely
economic graft in goverhment. I mean the corruption of political
will and spirit that results from the fact that every west European
dictatorship must be based on the lie that voluntary decisions of
the whole people are identical in all important matters with the
will of a single person, the will of the dictator. Dictatorship in
 136 Hermann Heller

capitalistic Europe will always be forced to work with all the

political, military and economic means of pressure and may be
able through them, above all through pressure on the stomach,
t o force practically the whole people t o political hypocrisy and
lies. I t is this corruption which now seems to the best of the
Italian people as the most terrible sign of the political degenera-
tion that has resulted from its dictatorship. Everywhere in Italy
one meets people who only wear the party badge or only speak
or write ublicly for fascism because their families would other-
wise go !ungry. There are enough characterless literati in the
democracies, of course, and the press in our democratic Rechts-
staat is without doubt terribly corrupt. In a dictatorship, however,
not only the journalist but all intellectuals and thinking people are
educated t o this corruption for the sake of the state with every
available means of political and economic pressure. There is no
myth less true, then, than the myth of a dictatorship free from
corruption.
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All these mythological disguises of dictatorship are only found

in unabashed purity in religious, unified national states where the
left rules or has ruled, for example in France and Italy. What a
movement sociologically identical to these but without their dis-
guises looks like, one can study by contrast in contemporary
Austria. The myth of a dictatorship that would clean out the
Augean stables of corruption is not viable in Austria, first, be-
cause the Austrian left demonstrates no noticeable signs of cor-
ruption but secondly and above all because the circles there
which are pressing for dictatorship have been sitting for years on
the feed boxes which they have generously emptied. None of the
other common myths go down in Austria either. Glorification of
the state must be reluctantly dispensed with, nationalism as a
camouflaging ideology is not practical because it has, at least
for the moment, the undesired consequence for the Christian-
Socialist wing of the military of an Anschluss with the German
Reich, and Catholicism is unwelcome to the urban bourgeoisie.
What remains, then, as a lofty battle goal? The taxes of socialist
governed Vienna.
It is of the greatest importance that the neo-feudal power-
posturing and the cry for a strong man be recognized as the
expression of a mood of desperation among the bourgeoisie.
Frightened by the advance of the working masses, the bour-
geois believes not only that his own claims to political and econo-
mic leadership are threatened but sees, too, the end of European
civilization coming near. More or less without thinking he thus
mistakes class for ~~1tUrallyforeign masses and races. By identifying
the always uncreative mass of people in all classes simply with the
 Rechtsstaat or dictatorship? 137

contemporary working class and oneself with a cultural elite,

frequently regarding the proletariat as racially inferior as well, it is
easy to brand the social Rechtsstaat and its beginnings today as
the dominance of the inferior. It is completely logical that the
author of the Untergang des Abendlandes is at the same time the
most representative German supporter of this religion of violence
and genius and of the idea of dictatorship. For Oswald Spengler
there are only 'Corporate states (Standestaaten), states in which a
single estate governs."O Only the nobility, however, is the 'genuine'
estate, the 'quintessence of blood and race.'" Peasants and the
bourgeoisie are already a 'wn-estate',12 the fourth estate, finally,
the 'masses' is 'the end, a radical nothing.'13 It is understandable
that for a desperate bourgeoisie there remains only the hope of a
strong man, the hope of a man of 'caesaristic dimensions' who,
with his 'com~letelypersonal power'I4 will take over all decisions;
for so is the order of all 'declining cultures.' The master race then
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has no illusions about the meaning of dictatorship; it knows

dictatorship means the deformation of every political form and
the dictatorship, is only the political sign of social anarchy.
Such knowledge would, however, be dangerous for the herd.
For its sake these illusionary disguises are needed; for it, too, the
masking of political fronts, For that reason one tends to attack
parliamentarism and declare that dictatorship is not the positive
goal but the corporative ar professional-estate (berufstiindische)
state. Both assertions are more or less conscious falsifications.
The destruction of parliamentarism along with the retention
of the Rechtsstaat, with a division of powers along the lines of
the model presented by the United States of America, would
still mean the subjection of the rulers to democratic law and
therefore to the will of the masses and their control through the
constitutional and administrative courts. Such a non-parliamen-
tary Rechtsstaat would not conform, however, to the religion of
violence and genius nor could it - and this is the main thing -
remove the political-economic difficulties of the ruling class.
But one cannot openly attack the popular legislature in the
Rechtsstaat. The unambipous negation of democracy would
assume that one had more than resentment at one's disposal,
namely a positive conception of law and the state that could
replace democracy. But how impotent as answers these anti-
democratic feelings are in fact, how limited their power to shape
politics, is nowhere more clear than where they are forced to
make Kowtows before their real enemy, democracy.
All contemporary dictators and all those who would like to be
dictators assure us that they have done nothing but realize 'true'
democracy, or want nothing but t o realize it. What else could
 138 Hermann Heller

they say? Even the petty bourgeoisie understands by now that the
age of the old divine right monarchy is past for social and religious
reasons. There is hardly anyone who believes that an hereditary
aristocracy in the age of transferable property could be anything
else but a legally recognized capitalistic class rule. The only course
remains therefore to defeat democracy with democratic means,
again and again to affirm it in words but to destroy its real content.
For this purpose dictatorship must be as well or even better
presented democratically and somehow legitimated through the
authority of the democratic popular will. The methods with
which a specifically democratic legitimation are adapted for the
purposes of an authoritarian dictatorship are really very interest-
ing. To begin with, important civil liberties in the democratic
Recbtsstaat are comprised as 'bourgeois' through the appeal, so
popular today, to an anti-liberal affect. If it is possible t o reduce
the civil liberties of freedom of opinion, assembly and the press
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and the secret ballot as 'really' undemocratic, then the guaran-

tees of a purely democratic determination of the popular will
are at the same time destroyed. Then there will be no more free
political campaigning, no independent voting, no security of
elections. The dictator can let the popular will function in this
way or that, completely according to his wish and even the plebis-
cites of Napoleon I11 and Mussolini can be designated as demo-
cratic 'acclamation'; not a game without its dangers in foreign
policy as well, when one thinks that the French, appealing to
the renowned German state theorist and constitutional lawyer
Carl Schmitt - even if against his own foreign policy views -
could try to replace the free, secret and uninfluenced election^'^
foreseen by Art. 34 of the Versailles Treaty for the Saarland with
acclamation of that sort. The sterile character of the dictatorial
idea demonstrates itself precisely here in the fact that even in
fascist Italy such plebiscites are indispensible.
A further apparently democratic disguise which serves to
support dictatorship is the ideology of the corporative or pro-
fessional (bentfsti5ndisch) state. It owes its effectiveness to the
fact that it ties into genuine political needs today. One has
undoubtedly demanded too much of the contemporary state;
it has overextended itself, not in legislation but certainly in
administration. And the further the state intrudes into the order
of work and commerce, the more necessary will be the elimina-
tion of the state's own administration in favour of self-administra-
tion. In this respect the corporative idea was a thoroughly demo-
cratic demand and it would also be the opposite of what the
opponents of the Recbtsstaat mean to achieve with it. In truth
their attacks are not directed against increased legislation but
 Rechrssraat or dictatorship? 139

against the extension of state regulation into the socio-economic

area. Above and beyond that they understand the corporative
state as one of 'professional estates' rather than parties, i.e., as
a state borne by the masks reduced t o political apathy. That the
constitution of such a state is democratically impossible and that
its attempt would mean the end of the state, the leadership knows
very well. Prominent fascists in Italy have expounded this theory
in detail. The essence of the political is contained precisely in the
unification of will in a pluralistic society. 'Corporative' organiza-
tions, if we accept this false designation for the moment, would
today more than ever be economic organizations which would
first require a political moment to constitute themselves as politi-
cal unities; but with that they would necessarily become political
parties. The cardinal political problem however is and remains the
construction of unity at the top, the emergence of a supreme
representative and thus of the state itself. How should that come
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about? The supporters of corporatist ideology know very well

that no political unity originates from economic interest groups
but rather permanent class struggle. Precisely for this reason they
keep silent about the form of political unification in the corpora-
tive state. The best-known German programme, Othmar Spann's
Der wahre Staat, can only say about this that the central power
would not 'be derived from all elements equally; more exactly
government should not come from the bottom up at all, but from
the top down' so that the not exactly new demand that 'the best
should govern from above'16 today can only mean dictatorship.
Dictatorship however always requires central unification of
power in the hands of the dictator, therefore the opposite of
corporatism. Within the capitalist dictatorship the latter merely
has the function then of disguising ideologically the organization
of the economic domination of the masses without which a
modern dictatorship cannot survive. Through the means of cor-
porations, workers should be made economically dependent on
the dictator and become politically pliant. For this reason there
is a monopoly of fascist trade unions in Italy without the
slightest self-administration, which comprise a submissive tool of
the dictatorship; for that reason Art. 23 of what is called the most
modern labour constitution (Carta del Lavoro)" requires that
work permits be distributed under the control of the fascist state
on grounds of parity and obliges employers to obtaintheir employees
through the means of these work permits. The employers have the
right - since the order of 6 December, 1928, even the duty - to
give preference among the registered t o those who belong t o the
fascist party and its trade union. This is how one has to under-
stand the fascist Justice Minister Rocco's speech in the Chamber
 140 Hermann Heller

on March 9, 1928: 'When one talks about the syndicalist or cor-

poratist state, then on the presumption that the word has been
properly understood. The corporate state is not the state in the
hands of the corporations, but the corporations in the hands of
the state.'18
To summarize: this demonstrates that dictatorship has nothing
to set against the Rechtsstaat which subordinates itself to the
economy, except an ideologically quite poorly disguised violence.
One of the heroes of fascism, Enrico Corradini, confirms this in
his book, I1 regim della borghesia produttive (1918), which poses
that question: 'How can a regime of the productive bourgeoisie
be possible in the middle of the modern political community,
universal socialist class struggle? Our answer is: the bourgeoisie
will take up the class struggle bravely, it will have to do every-
thing to dominate universal suffrage in the expectation that by
the logic of things, the system will have to change sooner or
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later; for even the conventional lies only have a limited exist-
ence fortunately, and parliamentarism is a conventional lie.'19
In calling the Rechtsstaat, democracy and parliamentarism con-
ventional lies, the bourgeoisie creates lies for itself. Through its
neo-feudal hatred of the law it involves itself not only in a self-
contradiction of its own former intellectual existence, it also
denies the existential necessities of its social life: Without the
certainty of a legal right to freedom of opinion, the freedom of
religious confession, of science, art and the press, without rechts-
staatliche security against arbitrary arrest and arbitrary judgement
by judges dependent upon a dictator's whim, without the principle
of legally-organized administration the bourgeoisie can live neither
economically nor intellectually. A bourgeoisie that has experienced
the Renaissance cannot let its feelings, wishes and thoughts be
dictated without committing intellectual suicide, it cannot allow
itself t o be forbidden, for example, to read Dostoevski and Tolstoy
as it has been - to name just one example from among thousands -
in Italy in September 1929.
If contemporary culture and civilization, created above all
by the bourgeoisie, is to survive, let alone be renewed, then the
degree of predictability in social relations must not only be main-
tained but increased. The bourgeoisie fought against absolute
monarchy because the certainty of legal freedom had become
indispensable to it. Today it cannot in one breath cry for the
'rationalization of the economy' and for a dictatorship whose
arbitrariness will necessarily be enormously greater than that of
the absolute princes. The more rational American economy rests
without a doubt on the fact that the domain of its rationality is
a giant continent whereas the European economy is a conglomerate
 Rechtsstaat or dictatorship? 141

of geographical dwarfs. One cannot be a state-glorifying nationalist

today and at the same time recognize that the north Americans
could gradually transform all the European nation-states into
white slave colonies because national economies in Europe protect
their markets against each other and finally compete themselves
t o death. The national trade barriers erected without regard to
market conditions, the similarly created armaments industries and
national automobile firms of these dozen European states often
only serve the private interests of a few capitalist groups, while
meaning the ruin of the national cultural community, and must
lead t o an increasingly powerful demand for rationalized produc-
tion in Europe. In Germany one could take the 'national' demand,
Buy German cars! seriously and pay a disproportionately high
price for German cars so long as the largest German car firm had
not yet become American property. After that every German must
ask himself for whose benefit he is really paying such exhorbitant
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prices: for the benefit of the nation or for that of the Ope1 family
and America's General Motors. That a nationalistic dictatorship
cannot oppose these global economic developments without
damaging the national economy is self-evident.
Nationalistic professors and literati like t o brand Europe as a
'betrayal of the spirit of the west' and conclude from these facts
that the west and Europe have only one last task, t o go down with
honour. It seems to me not only national but also honourable, and
in this case appropriate to the spirit of the west as it was under-
stood two generations ago, if the intellectual powers of the nation
would begin to feel ashamed of their desertion of intellect, if they
would finally recognize in current social circumstances the neces-
sary contemporary content of those laws which alone form us
into personalities. They must thereby come to realize that the
legal regulation of the economy in the Rechtsstaat is nothing but
a subordination of the means of life to the purposes of life and
thus constitutes the precondition for a restoration of our culture.
They must see that the future of western civilization is not en-
dangered by the law and its extension into the economy, but
precisely through social anarchy and its manifestation, dictator-
ship, and through the anarchistic speed of our capitalistic produc-
tion which allows neither headwork nor handwork their needs
and possibilities. With this knowledge they must, in the face of the
irresponsible chatter of bloodless rationalists and blood thirsty
irrationalists, be overcome by a feeling of insurmountable nausea,
and the decision between fascist dictatorship and the social
Rechtsstaat would be taken.
 Hermann Heller

Notes
1 O n 0 Mayer, Deutsches Venualtungsrecht, vol. 1, Munich: 1914 (2. ed),
p. 44.
2 Montesquieu, De l'esprit des lois (1748)Bk. XII, ch. 2.
3 Wilhelm von Humboldt, Ideen zu einem Versuch die Grenzen der Wirk-
samkeit des Staates zu bestimmen (1792), in Gesammelte Schriften (ed.
Royal Prussian Academy), vol. 1, Berlin: 1903, p. 179.
4 Robert von Mohl, Encyklopadie der Staatswissenschaft, Tubingen: 1859,
p. 329.
5 Decision o f the Reichsgericht (Imperial German Court) o f November 4 ,
1925. C f Reichsgericht in Zivilsachen, vol 112, p. 6 7 f f .
6 Hans Kelsen, V o m Wesen und Wert der Domokratie, Tiibingen: 1929,
(2.ed), p. 79.
7 Friedrich Nietzsche, Zur Geneologie der Moral, in Werke, vol 7 , Leipzig:
1899, p. 321ff. (English translation quoted from Walter Kaufmann's trans
lation, On the Genealogy of Morals, New York: Vintage, 1969, p. 40).
8 Cf. Hermann Heller, Europa und der Fascismus, note 119.
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9 Ibid., note 59.

10 Oswald Spengler, Der Untergang des Westens. Umrisse einer Morpho-
logierder Weltgeschichte, vol. 2, Munich: 1922, p. 457.
11 Ibid, p. 414
12 [bid, p. 412.
13 Ibid, p. 445.
14 Ibid, p. 541.
15 Reichsgesetzesblatt (1919), p. 687 f f .
16 Othmar Spann, Der wahre Staat, Leipzig: 1921, p. 274.
17 On April 21, 1927.
18 Heller, Fascismus (see note 8 above), note 312.
19 Ibid., note 276