Karl Loewenstein (lawyer)

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Karl Loewenstein , too: Karl Loewenstein (* 9. November 1891 in Munich , † 10. July 1973 in Heidelberg ) was a German national and constitutional lawyer and political scientist , who later became a citizen of the United States accepted. He was considered one of the most prominent representatives of public law and is also of importance for political science .

Life

The son of the pewter manufacturer Otto Löwenstein and Mathilde, born. After graduating from high school in 1910, Oppenheimer studied law in Paris , Heidelberg , Berlin and Munich at the Wilhelmsgymnasium in Munich, where he also received his doctorate in 1922 . During the First World War he worked for the War Usury Office in Bavaria until 1919 . He then worked as a lawyer and joined the German Democratic Party . In 1931 he received his habilitation and was a private lecturer at the law and political science faculty of Munich University .

By the National Socialist Minister of Education, Hans Schemm , Löwenstein was removed from the civil service on October 11, 1933, because constitutional doctrine and constitutional law in the National Socialist state cannot be taught by a non-Aryan and fled to the USA. From 1934 to 1936 he worked (now Loewenstein ) at Yale University in New Haven (Connecticut) and then went to Amherst College in Massachusetts . His dissertation was placed on the list of harmful and undesirable literature in 1936 , and his doctorate was revoked in 1941 . Between 1942 and 1944 he worked as an advisor to the American attorney general. In this function he was entrusted with questions of the state protection legislation of the American states.

After the Second World War, he briefly returned to Germany as a US legal advisor to the Allied Control Council . In September 1945 he arranged for Carl Schmitt to be arrested and his library to be confiscated. In 1946 he gave a guest lecture at Munich University. In 1956 he received a professorship for political science and legal policy in Munich as compensation for his expulsion from Germany - on the condition that he could take leave for the current winter semester and then immediately submit his retirement. The reparation proceedings were fraught with conflicts between the emigrant and some members of the teaching staff who had been heavily burdened from the time of National Socialism.

After his retirement, universities in Berlin, Kyoto, Mexico City and Basel invited him to take up visiting professorships. At the celebration of the golden anniversary of the doctorate, which the University of Munich had arbitrarily brought forward to 1969, the revocation of the title from 1941 was concealed because the members of the law faculty “lacked the courage to deal honestly with recent history”.

Constitutional theory

Loewenstein, along with Karl Mannheim , who like him lived in exile during National Socialism , was one of the initiators of a " controversial" or "defensive democracy ". In 1937, Loewenstein drafted the model of “militant democracy” against the background of his experiences with National Socialism.

Karl Loewenstein wrote throughout his life on a comparative constitutional law, which he published in 1959 as a work under the name Verfassungslehre (in the original: Political Power and the Governmental Process ). The book includes the distinction between autocratic states and constitutional democracies. For the latter, the use of power and the avoidance of abuse of power were the leitmotifs of the norms of validity. The relationship between power and law is problematic in Loewenstein's opinion and leads to a compulsory structure in the state itself. The autocratic state defines the relationship between power and law as unproblematic. This results from the fact that in such a system, due to its structure, both powers (law, power) are exclusively bound to the absolute ruler. Karl Loewenstein examined the constitutional systems not according to values, but according to structural aspects. Loewenstein distinguishes six types of government in constitutional democracy:

The parliamentary government was of particular importance to Karl Loewenstein, as he attributes it to a balancing effect between the assembly and the government. Through this form of government an attempt is made to balance power, so neither side should take a prominent role, they control each other. Loewenstein describes that in this dualism the two power bearers share the two functions of shaping the basic political decision and the implementation of this decision by way of legislation. As an "ideal type", Loewenstein would understand the perfect equilibrium, in which government and parliament have symmetrical, equal power resources and are periodically controlled by elections by the sovereign, the people. Löwenstein goes back to the history of the French Revolution when he claims that the history of constitutional government since 1789 has been nothing more than the search for the magic formula for creating and maintaining a balance between government and parliament. Loewenstein defines the parliamentary government as follows:

  • Members of the government are also members of parliament,
  • Cabinet is like a committee of parliament
  • pyramidal structure of the government with prime minister or prime minister at the top,
  • Government is in office as long as it is supported by the parliamentary majority,
  • Political decisions of principle and legislation are basically on the government and parliament

divided up,

  • mutual political control of government and parliament through the instruments of dissolution of parliament and a vote of no confidence.

Loewenstein considers the last point to be particularly important for the parliamentary system: If the instruments of dissolution of parliament and a vote of no confidence are missing, this amounts to a serious curtailment of an authentic parliamentary system. The parliamentary system can only function with difficulty in this way, or in this case it may have already stopped working completely. Karl Loewenstein divides the type of parliamentary government into four forms:

  • classical parliamentarism (dualistic executive; France's 3rd and 4th republic),
  • the fake parliamentarism (two-part executive; Weimar Republic),
  • controlled parliamentarianism (Federal Republic of Germany; Bonn Republic),
  • the restrained parliamentarism (France's 5th Republic.)

Karl Loewenstein sees France's 3rd and 4th republic as a classical parliamentarism, where the president and government face each other in a dualistic executive, the real power lies with the prime minister - in contrast to the "fake" parliamentarism of the Weimar Republic, in which there is a two-tier executive that makes the prime minister doubly dependent on parliament and president. He views the West German system critically as “demo-authoritarian”, whereby parliament is elected democratically, but then exercises power during the legislative period in an authoritarian manner and without parliamentary restrictions or voters' will.

France's 5th republic, which he describes as subdued parliamentarianism, hands over political power from parliament to the government and the president. Loewenstein sees the loss of importance of parliament both positively and negatively: on the one hand, the strengthening of the president and government corresponds to the needs of the time (1958), on the other hand, the disempowerment of parliament is also a reactionary backward trend.

In contrast to the parliamentary system, he describes the political system in Great Britain, which Loewenstein calls cabinet government, consistently positively; it is characterized by six features:

  • Two-party system,
  • Cabinet members are also members of parliament,
  • Prime Minister is at the same time leader of the majority party and has an outstanding position in relation to the cabinet
  • Government with full control over legislation, House of Commons often limited to approving government legislative initiatives,
  • Political control by both Houses of Parliament and by the electorate,
  • Faction and party discipline.

The amalgamation of the two power bearers parliament and government into one power mechanism as well as the two-party system positively emphasized by Loewenstein make the cabinet government, in Loewenstein's eyes, the most successful system of government today. The essential factor for the system of presidentialism, the cooperation between the de facto independent, divided rulers, president and congress - in particular, in the USA, for example, the parties act as mediators between the rulers - ensures the success and legitimation of the presidential system. In contrast, Loewenstein classifies the political systems in Latin America, which are closely related to US presidentialism, as neo-presidential and assigns them to autocracy. Since in these systems the president stands above all other state organs, this type has an authoritarian character and cannot be compared with actual presidentialism.

Political science approaches

Karl Loewenstein had a decisive influence on the parliamentary debate in post-war Germany with his research on constitutionalism and parliamentarism, which was oriented towards Max Weber , as well as the examination of the pebliscitary leadership state. He was considered one of the great experts on foreign constitutional law. In addition, he published studies on the English and US constitutional history and structure and developed the dialectic of institutions and ideology.

Works

  • Minority government in Great Britain. Constitutional studies of the latest developments in British parliamentarism. Schweitzer, Munich 1925, first in: Annalen des Deutschen Reiches 56/58 (1923/1925).
  • Forms of constitutional amendment. Constitutional dogmatic investigations into Article 76 of the Reich Constitution , [Habil.-Schrift, Univ. Munich, 1931] Tübingen 1931 (= contributions to contemporary public law , vol. 2).
  • Political power and the governmental process. The University of Chicago Press, Chicago 1957, translated by Rüdiger Boerner as constitutional theory. Mohr-Siebeck, Tübingen 1959, 4th edition, as an unchanged reprint of the 3rd edition, Tübingen, Mohr-Siebeck, 2000 ISBN 3-16-147432-5 Review by Ralf Hansen on Jurawelt.com .
  • Constitutional Law and Constitutional Practice of the United States , Springer, Berlin 1959 (= Encyclopedia of Law and Political Science . Law Department ).
  • Constitutional Law and State Practice of Great Britain , Springer, Berlin 1967, 2 vols. (= Encyclopedia of Law and Political Science. Law Department ).
  • Co-optation and election. About the autonomous formation of privileged groups. Alfred Metzner Verlag, Frankfurt am Main 1973, ISBN 3-7875-5230-8 .

literature

Web links

Individual evidence

  1. ↑ Address book for Munich , Volume 1891 , Otto Löwenstein, p. 232 (accessed on August 23, 2018).
  2. ↑ quoted in: Stefanie Harrecker: Degradierte Do Doctors , p. 320.
  3. ^ Reinhard Mehring: Carl Schmitt. Rise and fall. Eine Biographie , Munich 2009, p. 442.
  4. ↑ Stefanie Harrecker: Degradierte Do Doctors , p. 197.
  5. ↑ See Karl Mannheim: Diagnosis of Our Time. Wartime Essays of a Sociologist , London 1943.
  6. ^ Karl Loewenstein: Militant Democracy and Fundamental Rights , in: American Political Science Review 31/1937, pp. 417–433 and pp. 638–658.
personal data
SURNAME Loewenstein, Karl
ALTERNATIVE NAMES Löwenstein, Karl
BRIEF DESCRIPTION American constitutional lawyer and political scientist of German origin
DATE OF BIRTH November 9, 1891
PLACE OF BIRTH Munich
DATE OF DEATH July 10, 1973
Place of death Heidelberg