Method dispute of the Weimar constitutional law theory

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The methodological dispute of the Weimar constitutional law theory is a methodological dispute that was fought out primarily in the 1920s and especially among constitutional lawyers of the Weimar Republic .

Starting position

From the exuberant enthusiasm not only in law at the time for the exact natural sciences that were advancing and for general philosophical positivism, legal positivism or the so-called legal method according to Paul Laband's understanding in the German-speaking area had developed in constitutional law by the end of the 19th century and Karl von Gerbers enforced: According to this understanding, the positive, that is, established law should be treated by jurists similar to a scientific fact; Regardless of its content, law that had been formally legally established was regarded as a validly established dogma and consequently treated as a suitable object of humanities analysis in the legal sciences .

The method dispute

The Austrian constitutional law teachers at the Vienna School , above all Hans Kelsen , had developed this classic legal positivism even more to the point of pure legal theory up to the 1920s - the main work in this direction is Kelsen's work of the same name from 1934, in which he reproduces what was in earlier writings and carried out systematically according to developed teaching. Kelsen strove for the real purity of jurisprudence; H. above all a consistent realization of the postulates of Labands and Gerbers. According to Kelsen's understanding, these had de facto not fulfilled their own claim of pure jurisprudence, as was shown by Laband's position in the Prussian constitutional conflict.

In the 1920s, however, criticism of legal positivism began to grow; In addition to constitutional lawyers such as Heinrich Triepel and Erich Kaufmann , it was above all the protagonists Carl Schmitt , Rudolf Smend and Hermann Heller who - each in their own way - turned away from legal positivism and criticized Hans Kelsen from everything .

Carl Schmitt

Schmitt, whose main work is the constitutional doctrine of 1928, replaced constitutional positivism with the decision of the (decision-making) ruler as the basis of validity of all law and all order in general. This decisionism becomes particularly clear in his work The Concept of the Political and is formative for Schmitt's entire work at that time; only later did he focus on “ concrete organizational and design thinking ”. ( On the three types of jurisprudential thinking , 1934)

Schmitt's style is mostly described as occasionally polarizing. In contrast to this is the teaching of Smend.

Rudolf Smend

Smend developed his doctrine of integration , which, in contrast to Schmitt's operation, can be described as integrative, consensual and undogmatic with selective conceptual categories. The main work is Smend's Constitution and Constitutional Law , which was also published in 1928 and published by Duncker & Humblot , but shortly after Schmitt's constitutional theory .

Hermann Heller

Heller himself did not design a new system, but proceeded eclectic and syncretic . He died of a heart condition before he could finish his main work on the theory of the state . It was published posthumously in 1934.

These and other exponents of Weimar constitutional law, namely Kelsen, Schmitt and Smend, conducted the dispute in an unusually direct manner for jurisprudential conventions. Kelsen's sharp, polemic style on the one hand and unobjective, pejorative counter-reactions, especially from the right-wing conservative camp, on the other, may have contributed to the escalation.

Aftermath

In the Federal Republic of Germany, legal positivism, and with it the dispute over methods, basically lost its relevance. The reasons for this were the natural law renaissance after the Second World War and the "positivism legend", according to which Kelsen - in fact, in contrast to Schmitt and Smend, an open opponent of National Socialism - encouraged National Socialism through his view that jurisprudence should not evaluate or justify law have. Kelsen's emigration to the USA also contributed to the loss of importance of legal positivism in Germany. Schmitt, on the other hand, did not receive a professorship after his dismissal in 1945 and did not strive to do so, so that he could only indirectly influence the discussion on constitutional law. In the beginning there were still the two camps of the Schmitt School (including Ernst Rudolf Huber , Werner Weber , Ernst Forsthoff , Roman Schnur and Ernst-Wolfgang Böckenförde ) and the Smend School ( Gerhard Leibholz , Ulrich Scheuner , Konrad Hesse , Horst Ehmke , Peter Häberle ), but this camp formation also lost its fundamental importance in the 1970s.

Around this time, Heller's theory of the state began to be received in jurisprudence, after the work of Heller, who himself did not establish a school, had long since been accepted by left lawyers and in political science .

In Austria, the popularity of Kelsen and his pure legal theory is still unbroken. But also in German jurisprudence a renaissance of Kelsen's legal positivism can be observed in the last two decades, which is being promoted by lawyers like Horst Dreier , Oliver Lepsius and Matthias Jestaedt .

Sources and literature

  • Horst Dreier : Reception and role of the pure legal theory. Ceremony on the occasion of the 70th birthday of Robert Walter , 2001.
  • Volker Neumann: Hans Kelsen and the German Constitutional Law , Humboldt Forum Recht 2012, p. 149.
  • Gilberto Bercovici: Constituição e estado de exceção permanente. Atualidade de Weimar. Rio de Janeiro: Azougue, 2004.
  • David Dyzenhaus: Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar . Oxford: Clarendon Press, 1997.
  • Manfred Friedrich: The method and direction dispute. For the basic discussion of Weimar constitutional law . Public Law Archives, 1977: 161–209.
  • Manfred Friedrich: History of German constitutional law . Berlin: Duncker & Humblot, 1997.
  • Manfred Gangl (ed.): Left lawyers in the Weimar Republic . Frankfurt: Peter Lang, 2003.
  • Mandred Gangl (Ed.): The Weimar Constitutional Law Debate . Discourse and reception strategies . Baden-Baden: Nomos, 2011.
  • Max-Emanuel Geis: The dispute over methods and direction in the Weimarer Staatslehre , in: Juristische Schulung (JuS) 1989, pp. 91 to 96.
  • Kathrin Groh: Democratic constitutional law teacher in the Weimar Republic. From constitutional state theory to the theory of the modern democratic constitutional state . Tübingen: Mohr, 2010.
  • Frieder Günther: Thinking from the state. The Federal German Constitutional Law Doctrine between Decision and Integration 1949–1970 , Munich 2004.
  • Christoph Gusy: 100 years of the Weimar Constitution. Good shape in bad time . Tübingen: Mohr, 2018.
  • Christoph Gusy (ed.): Democratic thinking in the Weimar Republic . Baden-Baden: Nomos, 2000.
  • Shu-Perng Hwang: Constitutional order as a framework. A critical examination of the materialization approach in constitutional law from a framework-oriented perspective . 1st edition. Mohr Siebeck, Tübingen 2018, ISBN 978-3-16-155905-1 .
  • Axel-Johannes Korb: Kelsen's critic . Tübingen: Mohr, 2010.
  • Jo Eric Khusal Murkens: From Empire to Union: Conceptions of German Constitutional Law since 1871 . Oxford: Oxford University Press, 2013.
  • Oliver Lepsius: The conceptual formation that eliminates the opposites. Methodological developments in the Weimar Republic and their relationship to the ideologization of jurisprudence under National Socialism . Munich: Beck, 1994.
  • Christoph Möllers: The method controversy as a political generation conflict. An offer for the interpretation of Weimar constitutional law . The state, v. 43, 2004: 399-423.
  • Christoph Müller, Ilse Staff (ed.): State theory in the Weimar Republic . Frankfurt: Suhrkamp, ​​1985.
  • Gerhard Robbers : The state theory of the Weimar Republic. An introduction , in: Jura 1993, pp. 69 to 73.
  • Ulrich Schröder, Antje von Ungern-Sternberg (ed.): On the topicality of the Weimar constitutional law theory . Tübingen: Mohr, 2011.
  • Michael Stolleis : History of Public Law in Germany , Vol. II: Constitutional Law and Administrative Science 1800–1914 , CH Beck, Munich 1992, p. 276 ff.
  • Michael Stolleis: History of Public Law in Germany , Vol. III: Constitutional and Administrative Law Studies in the Republic and Dictatorship 1914–1945 , CH Beck, Munich 1999, p. 153 ff.
  • Michael Stolleis: The Methodological Controversy in Weimar Constitutional Law - A Closed Chapter in the History of Science? , Steiner, Stuttgart 2001.