Gerhard Leibholz

Gerhard Leibholz (born November 15, 1901 in Berlin ; † February 19, 1982 in Göttingen ) was a German lawyer and a judge at the Federal Constitutional Court from 1951 to 1971 .

Life

Leibholz was born the son of wealthy Jewish parents, but was baptized himself, raised a Christian and was confirmed (together with the later resistance fighter Hans von Dohnanyi ). He and Dohnanyi had a personal friendship, the common affirmation of the Weimar Republic and the acquaintance of the Bonhoeffer family . Both began studying law and philosophy in Heidelberg , where Leibholz worked for Richard Thoma in 1921 - at the age of 19 - with a thesis on Johann Gottlieb Fichte as a Dr. phil. received his doctorate. 1925 followed with Heinrich Triepel in Berlin doctorate in jur. with the scripture Equality before the law . Here he interpreted the principle of equality as a prohibition of arbitrariness and took the view that Article 109 of the Weimar Constitution , which had previously been understood as a requirement to apply the law, was not only binding on the administration but also on the legislature. In 1928 Leibholz completed his habilitation at Triepel in Berlin with the work Das Wesen der Representation . This work, in which he noted the transformation of the liberal representative state into a party state, later became the basis of his so-called “party state doctrine”. His inaugural lecture dealt with the fascist constitutional law of Italy.

In 1929 Leibholz was appointed to a chair at the Law Faculty of the University of Greifswald . In 1931 he was given a chair at the Faculty of Law and Political Science at the Georg-August University in Göttingen , which he only got through an intervention by the Prussian Science Minister Adolf Grimme after the faculty had spoken out against him with anti-Semitic motives. When the National Socialists passed the “ Law for the Restoration of the Professional Civil Service ” in 1933 , with which they removed the majority of civil servants of Jewish origin from the public service, Leibholz was allowed to remain in office for the time being under an exception because he was able to make credible that he was after the first World War I participated in the suppression of Bolshevik unrest. In 1935, however, he was retired because of his Jewish origins. He was succeeded by Georg Erler in November 1938 . In 1938, Leibholz was able to emigrate to Great Britain with his wife Sabine Bonhoeffer , Dietrich Bonhoeffer's twin sister , and their two daughters in time for the anti-Semitic pogroms . There he was briefly interned in 1940 as an " Enemy Alien " . Although Leibholz gave some lectures at Oxford University , he was ultimately unable to pursue his academic career in England. However, he worked as an advisor to the Anglican Bishop George Bell , whose criticism of the official British war policy he influenced.

Four of his brothers-in-law, including Dietrich Bonhoeffer and Hans von Dohnanyi , were murdered by the National Socialists shortly before the end of the war after a court trial. Leibholz 'older brother Hans and his wife had already committed suicide when the Germans invaded their exile in the Netherlands.

Leibholz grave in the city ​​cemetery (Göttingen)

In 1947 Leibholz returned to the University of Göttingen, initially as a visiting professor. His final return to Germany was favored not least by his appeal to the newly founded Federal Constitutional Court in Karlsruhe . From September 7, 1951 to December 8, 1971, he was a member of the Second Senate of the Federal Constitutional Court. There he held the department for parliamentary law, party law and electoral law and, in particular, influenced the party-friendly case law of the court. His role as the author of the so-called Status Report in 1952 is also important, in which the court itself defined its position as a constitutional body and thus established its specific position in the constitutional structure of the Federal Republic of Germany. The First Senate of the Federal Constitutional Court, to which Leibholz did not belong, already followed Leibholz's interpretation in one of its first decisions and interpreted the principle of equality in Article 3, Paragraph 1 of the Basic Law as a prohibition of arbitrariness.

From 1961 to 1978 he was a member of the Advisory Board of the Friedrich Naumann Foundation for Freedom .

meaning

Gerhard Leibholz is particularly known as a representative of the so-called party state doctrine, which has its origins in the time of the Weimar Republic , but was increasingly popular under the validity of Art. 21 GG. According to this doctrine, the liberal-representative constitutional system (especially the Basic Law) is overlaid by the emergence and constitutional recognition of parties as organizations with which the will of the people is formed. The Federal Constitutional Court took up the doctrine in its decisions, especially in the early days, also under the influence of Leibholz. Both the admissibility of party financing and the withdrawal of the Bundestag mandate from members of banned parties ( SRP judgment of the First Senate of 1952) was justified with this view. In recent times there has been a turn away from party politics.

Honors

• 1968: Great Cross of Merit with Star and Shoulder Ribbon of the Federal Republic of Germany
• 2006: A street in Neureut is named after him.

Publications

• Spruce and the democratic idea. A contribution to the theory of the state. Boltze, Freiburg im Breisgau 1921.
• Equality before the law. A study based on comparative law and legal philosophy. Liebmann, Berlin 1925 (dissertation, University of Berlin, 1924); 2nd edition expanded with a series of additional articles. Beck, Munich / Berlin 1959.
• The essence of representation with special consideration of the representative system. A contribution to general state and constitutional theory. De Gruyter, Berlin 1929; 3rd, expanded edition 1966 under the title The essence of representation and the change in shape of democracy in the 20th century.
• The dissolution of liberal democracy in Germany and the authoritarian image of the state. Duncker & Humblot, Munich 1933.
• with Hans Reif : Constitutional position and internal order of the parties. Mohr Siebeck, Tübingen 1951.
• Structural problems of modern democracy (lectures and essays). Müller, Karlsruhe 1958; New edition of the 3rd, extended edition. Athenaeum, Frankfurt am Main 1974, ISBN 3-8072-6012-9 .
• Politics and Law , Leyden 1965.
• Constitutional State - Constitutional Law [lectures given between 1956 and 1968]. Kohlhammer, Stuttgart 1973.
• Σύγχρονος Γερμανική επιστήμη του πολιτειακού δικαίου [= contemporary German science of constitutional law]. In: Αρχείον Φιλοσοφίας και Θεωρίας των Επιστημών. Athens, 3 (1931-1932), pp. 345-374 [without the name of the translator].
• Το ολοκληρωτικόν κράτος της σήμερον και αι πολιτικαί ιδέαι του 19ου αιώνος [= The total state of today and the political ideas of the 19th century]. In: Αρχείον Φιλοσοφίας και Θεωρίας των Επιστημών. Athens, 8 (1937), pp. 239-282 [Εκ του Γερμανικού κατά μετάφρασιν K.] [= P. Kanellopoulos?].

Correspondence

• Eberhard Bethge , Ronald CD Jasper (ed.): On the threshold of a divided Europe: the correspondence between George Bell and Gerhard Leibholz; 1939-1951. Kreuz-Verlag, Stuttgart / Berlin 1974, ISBN 3-7831-0448-3 .

Individual evidence

1. ↑ Detlev Fischer: Gerhard Leibholz, in: Blick in die Geschichte No. 122, March 22, 2019, p. 1.

literature

• Susanne Benöhr: The fascist constitutional law of Italy from the point of view of Gerhard Leibholz. On the origins of party state theory (=  writings on party law. Vol. 23). Nomos, Baden-Baden 1999, ISBN 3-7890-6307-X .
• Werner Heun : Life and work of persecuted lawyers - Gerhard Leibholz (1901–1982). In: Eva Schumann (Ed.): Continuities and caesuras. Law and justice in the “Third Reich” and in the post-war period. Wallstein, Göttingen 2008, pp. 301–326.
• Anna-Bettina Kaiser (ed.): The party state. On the understanding of the state by Gerhard Leibholz (= understanding of the state. Vol. 58). Nomos, Baden-Baden 2013, ISBN 978-3-8329-7105-2 .
• Sabine Leibholz-Bonhoeffer: Past - experienced - overcome. Fate of the Bonhoeffer family. Gütersloher Verlagshaus, Gütersloh 1983, ISBN 3-579-03961-X .
• Christoph Link (ed.): The principle of equality in the modern constitutional state. Symposium on the 80th birthday of Federal Constitutional Court Judge Professor Dr. phil. Dr. iur. Dr. hc Gerhard Leibholz on November 21, 1981. Nomos, Baden-Baden 1982.
• Christoph Link :  Leibholz, Gerhard. In: New German Biography (NDB). Volume 14, Duncker & Humblot, Berlin 1985, ISBN 3-428-00195-8 , pp. 117-119 ( digitized version ).
• Robert Chr. Van Ooyen : Critique of the party state doctrine by Gerhard Leibholz. In: ders .: Politics and Constitution. Contributions to a political science constitutional theory. VS-Verlag, Wiesbaden 2006, pp. 56-63, DOI: 10.1007 / 978-3-531-90077-3_4 .
• Christian Starck : Gerhard Leibholz (1901–1982). In: Peter Häberle , Michael Kilian , Heinrich Wolff : Constitutional law teacher of the 20th century. Germany, Austria, Switzerland . De Gruyter, Berlin / Boston (2nd edition) 2018, pp. 679–691, ISBN 978-3-11-054145-8 .
• Shigetoshi Takeuchi: Gerhard Leibholz 1901–1982. His life, his work, his time. Yuhikaku Gakujutu Center, Tokyo 2004.
• Peter Unruh: Memory of Gerhard Leibholz (1901–1982) - constitutional lawyer between the ages. In: Archives of Public Law , Vol. 126 (2001), pp. 60–92.
• Manfred H. Wiegandt: Norm and Reality. Gerhard Leibholz (1901-1982) - life, work and judicial office ( studies and materials on constitutional jurisdiction , vol. 62). Nomos, Baden-Baden 1995, ISBN 3-7890-3795-8 .
• ders .: Gerhard Leibholz's path into emigration . In: Kritische Justiz 1995, pp. 478–492.
• ders .: Antiliberal Foundations, Democratic Convictions: The Methodological and Political Position of Gerhard Leibholz in the Weimar Republic . In: Peter Caldwell, William E. Scheuerman (Eds.): From Liberal Democracy to Fascism: Political and Legal Thought in the Weimar Republic. Humanities Press, Boston / Leiden / Cologne 2000, pp. 106-135.
• ders .: Between anti-liberal and democratic ideas. Gerhard Leibholz in the Weimar Republic . In: Christoph Gusy (Ed.): Democratic thinking in the Weimar Republic. Nomos, Baden-Baden 2000, pp. 326-364.
• ders .: Gerhard Leibholz (1901–1982) . In: Jack Beatson / Reinhard Zimmermann (eds.): Jurists Uprooted. German-speaking Émigré Lawyers in Twentieth-Century Britain. Oxford University Press, Oxford 2004, pp. 535-581.
• ders .: From the Weimar Republic to the Bonn Republic. Gerhard Leibholz (1901–1982) . In: Joachim Lege (Ed.): Greifswald - Mirror of German Jurisprudence 1815–1945. Mohr Siebeck, Tübingen 2009, pp. 373-397.

Web links

• Literature by and about Gerhard Leibholz in the catalog of the German National Library