Understanding of the rule of law in National Socialism
“ National Socialist German constitutional state ” and similar expressions such as “ the German constitutional state of Adolf Hitler ” were used several times by National Socialist and Nazi lawyers to refer affirmatively to what they considered to be a specifically German constitutional state .
"German" means above all a demarcation of abstraction and formality of statutory law and instead the postulation of a "popular", intuitively perceivable law, in which the coincidence of law and justice and the clarity, which both mean, is always guaranteed.
On explizitesten for linking "German" and "rule of law" have the Nazi official Hans Frank and too Weimar times influential constitutional law professor Carl Schmitt and the Magdeburg district president Helmut Nicolai expressed. They are the ones who actually place the words “German” and “Rechtsstaat” directly (Frank and Schmitt) - or at best separated by “National Socialist” in between (Nicolai) - one after the other, and those who are often cited with these expressions in secondary literature and refer in more detail to earlier German legal understandings that have been buried in the meantime by Roman and Western influences and that need to be restored.
Historical points of reference for the understanding of the rule of law and the rule of law, which are viewed as specifically “German”, are - in a speculative, racial-theoretical manner - the legal understanding of a Nordic- Germanic “primitive people”, the medieval law-preserving state prior to the reception of Roman law and the legal theorists of the 19th century especially Lorenz von Stein , Rudolf Gneist , Otto von Gierke and - with reservations - Robert von Mohl .
In the secondary literature, some authors see National Socialism in general and the National Socialist concept of the rule of law in particular as the culmination point of an actual tendency in German history in general (see the article " German Sonderweg ") and the history of the concept of the rule of law in particular (Maus and Bäumlin / Ridder), without that these authors would admittedly adopt the back-projection of the rule of law to times well before 1800 and the positive assessment of that tendency. Others see the National Socialist concept of the rule of law as an (objective) abuse and / or at least a (subjective) dishonest use (Stolleis) of the word. Still others take note of the National Socialist claim to the word “constitutional state”, but still characterize this usage as “constitutional criticism” (Schellenberg) without further justification. - Finally, many authors, especially the older generation, continue to ignore the phenomenon.
Use by Hans Frank
Hans Frank (at that time Bavarian Minister of Justice, Reich Commissioner for the Coordination of Justice and President of the Academy for German Law ; later “ Governor General ” for occupied Poland) published an article in 1934 in the Nazi organ German Law founded in 1931 with the title “The German constitutional state of Adolf Hitler ” as a copy of a radio address he had previously given on the Deutschlandsender. The expression "German constitutional state" appears only in the heading and is not explained in more detail.
In the first sentence of the essay it says without adding the adjective: "The state of Adolf Hitler, the powerfully united German Reich of National Socialism, is a constitutional state." What is specifically German about this constitutional state is apparently that the content of its legal system is the "legal policy of Germanness “Correspond; and in this sense a whole series of National Socialist legislative acts are enumerated for which it is claimed that they are in the German interest. There is no discussion of the history of the rule of law and the question of whether there are equivalents in other languages.
However, two aspects still give detailed information about the implicit in this concept of "German [r] rule of law" right understood:
Alleged legitimacy of the National Socialist takeover of power
Frank claims: “Today we want to once again publicly acknowledge this idea that the power of National Socialism has to find its realization and seeks to find it exclusively in the forms of law. The attainment of power by our Führer took place using the forms given by the imperial constitution . ”(P. 120, emphasis in the original)
The first of the legislative acts of the “Cabinet of our People's Chancellor” listed by Frank shows the uncertain ground on which this assertion stood based on a positivistic understanding of law : the elimination of the “sovereign powers” (p. 120), in the context of which the Reichsrat was also abolished Government law of February 14, 1934 was passed. In any case, the abolition of the Reichsrat was not covered by the Enabling Act of March 24, 1933, because Article 2 of this law stipulated: “The Reich laws passed by the Reich government can deviate from the Reich constitution, provided they do not deal with the establishment of the Reichstag and the Reichsrat as such have. "( Authorization Act on Wikisource .)
It is at least doubtful whether this was instead covered by Article 4 of the Reichstag law on the rebuilding of the Reich of January 30, 1934 (“The Reich Government can enact new constitutional law”). Because the removal of the Reichsrat was the removal of old constitutional law and based on the mere wording of the law it is not clear whether the establishment of new Imperial Constitutional Law was meant or rather the establishment of new Land constitutional law by the Imperial Government .
Deformalization of the legal concept
In contrast to Schmitt ( see below ), Frank does not find an explicit statement against a formal understanding of the rule of law (just as Frank lacks any explicit statement on the alternative of a formal and material understanding of the rule of law ). A deformalization of the legal term is also claimed by Frank,
- when he postulates that “the clear forms and content of legal life” have been brought into line with the “legal soul and legal convictions of the German people”,
- and when he claims that the class structure of the National Socialist legal organization "is not based on the empty point of view [...] of viewing the external function [...] as an ordering point of view [...]", but rather the " internal evaluation of the work of the individual" be the starting point.
Frank also claims “ legal certainty ” and “legal clarity” (p. 121), but at the same time he is also concerned with “speediness” (p. 121) and the fight against “every form of bureaucratism”: “Bureaucratisation means paralysis . It is not in this that the law can be made accessible to such a rigidification. "
In 1939 Frank reaffirmed his anti-positivist understanding of law. In Frank's view, law is something pre-existent in legislation that is only brought “to the light of consciousness” by the respective legislature, and for the legal interpretation Frank postulated there: “The interpretation of the law must not just be logically analogous , they must above all be able to find the right thing in terms of understanding. The measure of the application of the law does not lie in excessive severity or in indefinite fairness, but in the correct understanding of the legal spirit . Without this understanding application of the law, the law is dead [...]. "(Emphasis added)
German missionarism
Frank does not, however, specify a definition of specifically German in his concept of the rule of law because he wants to allow this deformalized rule of law to also be passed on to other peoples (and in this respect he can not claim an essential link between national identity and the specific concept of the rule of law):
"The Academy for German Law [...] also has the great task of conveying the conviction of the serious and professional intent of National Socialism to the universal community . [...]. Legal policy in particular is a part of general policy [...] which most surely leads to the goal of establishing a common basis for cooperation between peoples and states. "
"It is up to that that this [the above-mentioned corporate] kind of organization of a serious profession is exemplary for the development of the rule of law throughout the world." (P. 122, emphasis deleted)
Frank had already stated in 1933:
"We are committed to the rule of law, and nobody in the whole world is authorized to dispute this commitment, and anyone who believes, based on the claim that we have an arbitrary government in Germany, can make claims abroad, should be told please come to Germany and see for yourself. We German lawyers are happy to provide you with information and guide you, [...]. "
Saxon mirror and Roman law as opposing reference points of the German "legal idea"
In 1935, Frank wrote in his introduction to the National Socialist Handbook for Law and Legislation : "National Socialist legal policy requires us to secure the German people in a National Socialist constitutional state". The explanations given above and below provide more detailed information about what, in Frank's view, defines what is initially specifically German (albeit disseminable, see above) of his concept of the rule of law and the rule of law: He cites point 19 of the party program of the NSDAP (“We demand replacement for Roman law serving the materialistic world order through a German common law. "), and on the following page he writes:" National Socialist legal thought is not compatible with a law that is based on bloodless abstractions. "
According to Christian Hilger's account, Hans Frank also refers in further writings “to a 'Germanic primitive people' who, with the reception of Roman law, have become estranged from themselves. The German idea of the unity of 'custom' and law was expressed particularly clearly in the Sachsenspiegel , which in this respect must be used as a yardstick for the further legal development under National Socialism. It is important to bring the German people's 'intrinsic', 'eternal legal idea' back to full development and no longer to degrade it to the 'object of the abstracting propositions of formal law'. "
Use by Carl Schmitt
According to Carl Schmitt , Frank's phrase and his own phrases from 1934 “National Socialist constitutional state” and “National Socialist German constitutional state” represent the “profound change in meaning” that the word “constitutional state” underwent under the rule of National Socialism, especially in relation to the Weimar period , “Beyond doubt”.
"Harmony of state and society" instead of "subordination of the state to civil society"
Carl Schmitt also did not give a precise definition of what is specific and especially what is specifically German about this rule of law concept, but he saw in those phrases a "happier [meaning: more successful] continuation of the [...] efforts of Lorenz von Stein and Rudolf Gneist ". The third page of the essay in question said about these “efforts”: “Great thinkers and scholars like Lorenz von Stein and Rudolf Gneist tried, with tremendous efforts, with the help of a 'German' concept of the rule of law aimed at the harmony of state and society To stop the subordination of the state to civil society ”, as it was aimed at by Robert von Mohl in Schmitt's view with the concept of the rule of law. But Robert Mohl, who is generally considered to be the one who triggered the widespread use of the term, at least credits Schmitt with the fact that - unlike other authors - he did not oppose the rule of law and the police state. In 1934 Schmitt Mohl also included in the commendation for the "reconciliation and connection between state and civil society":
“Great and important German scholars like Robert Mohl, Lorenz v. Stein, Rudolf Gneist, use this word [constitutional state] to solve the real problem of the German 19th century, namely the reconciliation and connection between the state and civil society. [...]. This constitutional state should be a state in which state and civil society are organically linked and the dualism of both, the ongoing, open or latent conflict between state and citizen, government and parliament, executive and legislative branches, is overcome by 'integrating' institutions and methods. "
Only then, according to Schmitt's account, does the positivist stage of the rule of law begin, which he rejected.
Reference to Lorenz von Stein
In his 1935 writing, Schmitt referred to p. 297 of the (first and) second, “thoroughly revised” edition of Part I of Lorenz von Stein's Administrative Doctrine - without quoting verbatim . What seems to be meant is the following passage on p. 296 f. of the second edition: “First of all, one must assume that the word and concept of the 'constitutional state' are specifically German . Both appear neither in a non-German literature nor can they be reproduced correctly in a non-German language. "
According to Lorenz von Stein, the specificity of the German concept of the rule of law was that it was not law-centered, but a concept of (jurisprudential or legal-philosophical) teaching. See also the section The term "Rule of Law" in the article Rule of Law Concept .
This could also mean a passage on p. 297 below / 298 above, where Stein differentiates between two epochs of the rule of law. In the first epoch (which probably refers primarily to the times before the concept of the rule of law and foreign authors) the state was (conceptually) founded by social contract, and in the second - and according to Stein, this justification is no longer applicable:
“Here [in the second epoch] it is no longer necessary to go back to the treaty as the basis for the legal limitation of the government; [...] neither Herbart nor Kraus nor Hegel nor Stahl [think] of a contract [...], and the contract [disappears] even from ordinary works, like Bluntschli "
With this, Stein expressed something with affirmative connotation , which later authors - now with negative connotation - formulated as follows: The German rule of law concept is - unlike the British rule of law - not democratic-constituting the state, but is a mere limitation of what is found and accepted authoritarian state has been developed.
Reference to Rudolf Gneist
On the other hand, Schmitt referred to pages 1 and 180 f. and 181 f. by Rudolf Gneist's The Rule of Law of 1872, where Schmitt quotes the last two passages literally:
“The rule of law is not a legal state, […]. If [...] the extreme elements of society deny the state [...] its right and existence , if the most essential rights of state power are briefly and disproportionately described as police, bureaucracy and arbitrariness, I think it would be the legal profession to remember that the German state is inherently a constitutional state, that it was not the 'bureaucracy' but the misunderstanding of our society that destroyed the constitutional state, that our state did not first learn the order of law and finance from the parliament , but that we only want to continue and perfect the existing, most efficient state institutions in the European world with the regular participation of society. "
"Substantial justice" instead of "formal [r] methods" - "Rule of law" instead of "rule of law"
The year before, Carl Schmitt had already referred to it in an essay, to which he referred again in the cited essay from 1935, as an “alien way of thinking” when “[v] or the obvious substantial justice [...] a series of formal methods, principles, norms and institutions [pushes] [...] that transform the rule of law into a mere state of law ”. It is in this sense that Schmitt speaks affirmatively and without quotation marks of the “National Socialist constitutional state” and pejoratively of the liberal, formal “constitutional state” ”in quotation marks.
Schmitt's thesis of the defeat of Stein and Gneist
Schmitt speaks of a “profound change in meaning” that the word “constitutional state” experienced under the rule of National Socialism because, according to his account, Gneist and Stein's “efforts” towards the tendency to formalize the concept of the constitutional state were unsuccessful.
Responsible for the formal understanding of the rule of law, Schmitt makes an - as he says - "an author recognized as 'conservative': Friedrich Julius Stahl (Jolson) ", whereby the quotation marks around "conservative" are supposed to indicate that Schmitt did not recognize Stahl as really "conservative" ; and the addition of brackets “(Jolson)” refers to Stahl's name before his conversion from Jewish to Christianity, which marks the supposedly formal understanding of the rule of law as Jewish and discredits it all the more in National Socialist eyes.
Used by Helmut Nicolai
Helmut Nicolai , lawyer, racial theorist and head of the "professional group of administrative officials" created in the BNSDJ in 1933 , which was politically sidelined in 1935 after a dispute over competencies, established the following connection between the rule of law and "Germanic legal thought": "This new state that we are creating [... ], is a constitutional state, a state in which the Germanic legal idea comes first, as it had been in the first place in the Middle Ages, and as it was in the first place in the empire of Frederick the Great. That is why we thank our Fiihrer Adolf Hitler above all for giving us Germans back this legal idea. We lawyers owe it to him for the reawakening of the moral legal concept, the new creation of the German National Socialist constitutional state. "
Nicolai does not explain at this point what constitutes this “Germanic legal idea” in his opinion.
Rejection of positivism as a feature of the German conception of law
Before that, however, the speech on the subject of the “German conception of law” said: “Liberal legal theory was called 'positivism'. If I want to say briefly, briefly, what is meant by this, positivism means: the state makes the laws, and the lawyers have to learn and implement, and there is nothing more and nothing else. The German conception of law, which we National Socialists represent and must represent according to point 19 of our program, is completely different. Spiritual content also belongs to the law. The right is not an earthly thing that can be experienced from human laws, but the eternal order of life, which is only brought into shape by the law, the right should always be in harmony with the moral law in the stars and our breasts. "( P. 26) But even with this, according to Nicolai, mere shaping of what is allegedly found, the legislature is not a prominent authority, but stands alongside judges and administrative officials: “In the end, the law is constantly being reformed in the brain and heart of the legislature, the administrative officer and the judge ”(p. 26). And with regard to the yardstick for this formation, it then says: For this task, the above-mentioned authorities would have to “bring a great deal of knowledge with them, [...] above all a conscience that is racial and ethnic . That is why the law will always be based on race , that is why law without race cannot be understood and dealt with. "
What this means for “German law” is not explained by Nicolai at this point either, but he goes into more detail in his following publication Rasse und Recht from 1933.
Nordic law versus Roman and Oriental understanding of law
Nicolai also refers to a "Nordic [s] original people". Its legal thought is characterized by the fact that in it the law is connected “with the absolute ethical concept of truth” and is therefore considered “the ultimate good par excellence”. ”In contrast, the late Roman jurisprudence had the“ brilliant achievement ”(with Nicolai in distant quotation marks ) “The separation of morality and justice” accomplished “as it was taken for granted in our modern times as a natural truth”.
Nicolai presented the same contrast as early as 1932 in his book Die rassengesetzliche Rechtslehre as the contrast between Roman and Germanic law: “When the Roman was asked what was legal, [...] he opened the code of law, [...] the old German [...] could not appeal to an order of the state authority, but had to question his conscience. He could not look into a code of law, but had to take the answer from the ideal of law that stood before him, that general legal idea that prevailed in community life and was to be a binding guideline for the individual. "(P. 10)
Nicolai makes a further contrast between the "Nordic" and the "Oriental" understanding of law: "Nordic" law results from habit (p. 20, footnote 2) and conscience (p. 34); "Oriental" law, on the other hand, is "not revealed through conscience, but through the letter of a legislator." (p. 34)
The German constitutional state as the state of the "unity of natural law and moral law"
According to Nicolai's racial legal theory, of course, “Nordic” peoples are not immune from falling prey to legal thinking: “The disintegration of races leads to the disintegration of the Nordic legal system and vice versa. In place of the finding of law from the conscience comes the finding of law from the written law. ”In this sense, Nicolai comes to a negative answer to the anachronistic question whether the late Roman Empire was a constitutional state:“ If we use the standard of the Norse idea of To be right, one must answer this question in the negative . From the all-encompassing legal idea of the unity of natural law and moral law, of the cosmos, of the eternal divine order of all things, there was almost nothing left to notice. Little was left of the binding effect of the legal certainty […]. In truth, this Roman Empire had become a jurist state "- a state in which jurists record the law in books (p. 39) -" but it was no longer a constitutional state. "(P. 40, emphasis in the original)
The German constitutional state as a state of unity of rights and duties
Finally, Nicolai refers to what he believes to be “ German legal ideas that knew no sphere that could do what they wanted, but considered all justification from the perspective of duty” (p. 49) - following on from Ernst Forsthoff, the "total" state, which thinks law and duty together, as opposed to the "dualistic", liberal state, which opposes a private sphere of freedom to a state sphere of duties. Because of this supposed separation of freedom from duties, Nicolai finally comes to the conclusion: “If the liberal state allowed six or seven or any number of world views with as many different moral evaluations as justified to coexist, [...], yes, even with this one Uncertainty of the judgment no longer dared to punish at all and protected the criminal from justice more than his fellow men from the criminal, then one can truly hardly say that this liberal state deserves the honorary name of the 'constitutional state', [ ...]. "(P. 55)
Used by Edgar Tatarin-Tarnheyden
Edgar Tatarin-Tarnheyden , after his habilitation in Marburg in 1922, professor in Rostock, spoke affirmatively in 1933 of the “national constitutional state”.
In 1934 he describes the rule of law as “primarily a German value”: “The fact that the rule of law is not a matter of course shows that the state and law are not the same. The national-social state has written this marriage of the state with the law on its flag from the start; [...]. The rule of law is an eternal human and above all German value, from which the community of the people is completed. [...]. The rule of law basically means binding the actions of the state organs to inviolable legal norms, which of course do not necessarily have to be legal norms [...]. On the other hand, it must be argued that the principle of the rule of law [...] always remains the same, whereby the 'binding to the law' is by no means identical with positive legality [meaning: legality in the positivistic sense]. Of course, it depends on the legal norm, but that in no way leads to formal regularity ”.
The concept of tiered citizenship
For Tatarin-Tarnheyden, "Völkisch" apparently means (the term is not explicitly defined) on the one hand to claim (foreign policy) also all people of " German blood " who live in other countries as German citizens and (domestic policy) only To grant "Aryans [...] Germanic blood" full citizenship rights. For him, civil servant rights are just a first-class example (“above all”) of the rights to be restricted. "Aryans not of Germanic blood" and Jews of German nationality with an "Aryan" grandparent should be left with full citizenship rights if necessary with special "national merits"; In Tatarin-Tarnheyden's “ethnic constitutional state”, people with both Jewish grandparents are out of the question as bearers of citizenship rights. With this consideration of “national merits”, Tatarin-Tarnheyden is based on the so-called “ front-line combatant privilege ” in Section 3 II of the law on the restoration of the civil service, which is directed against Jewish, social democratic and Marxist civil servants (“Paragraph 1 does not apply to civil servants, who have been civil servants since August 1, 1914 or who fought on the front in the World War for the German Reich or for its allies or whose father or sons died in the World War. "). Tatarin-Tarnheyden only wants to “consider” the regulation introduced at a suggestion by Hindenburg , which is a must (“does not apply”) also for civil servants with four Jewish grandparents. Incidentally, his concept of a tiered citizenship (in Tatarin-Tarnheyden's terminology: mere “formal legal citizenship” and full “citizenship 'acquired from blood and probation in service and loyalty”) already 1933 the Nuremberg Laws of 1935 with their distinction between " Reich Citizenship " and mere "Citizenship" (§ 3 I and III: "Reich Citizen is only a citizen of German or related blood who proves through his behavior that he is willing to serve the German people and Reich in loyalty." Reich citizen is the sole bearer of full political rights in accordance with the law. ")
On the other hand, according to Tatarin-Tarnheyden, “völkisch” probably means paying attention to the “connections between the state and the organic, blood-like whole of life” and the “organism theory” (what is probably meant is an organic- romantic conception of the state) from “exaggerated relativistic intellectualism” discard.
Justice as a Germanic "community value"
In 1934 Tatarin-Tarnheyden referred approvingly to Frank's characterization of Nazi Germany as a constitutional state and also stated: “The constitutional state of strict legal obligations can never be fully implemented: the constitutional state always remains a postulate of practical state policy , it can never become a complete reality. The constitutional state nevertheless remains a highest social order value, which alone can protect against arbitrariness, and which is the basis of all culture and especially of a German culture. Because being German means being fair. The legal value has been one of the highest community values for the Teutons since time immemorial. "
He had already made it clear that by rejecting “arbitrariness” he was not concerned with safeguarding individual freedoms: He accused the “representative of the“ liberal constitutional state ”" for even granting the individual one a meta-state [...] position, they absolutize the individual vis-à-vis the state, thereby granting him legal priority over the state: that resulted in an individual librarianism that could always and everywhere fall into the arms of the state by doing that The state only wanted to allow action where everything was precisely regulated in advance, but postulated the priority of individual interests in a norm-free area. That was the correlate to the economic libertinism of ' Laisser faire , laisser aller!' "
Hitler's Mein Kampf and Otto Gierke
Tatarin-Tarnheyden finds the "basic ethical creed of the new state" in Hitler's Mein Kampf :
“The national revolution has given the German state, which until now in its formal legal relativism has been devoid of faith and confession, a new state idea, I would like to say a new state original nomos . This was made sufficiently clear through the National Socialist program, through Hitler's work 'Mein Kampf', through the great political speeches of the Führer and through the appointment of Adolf Hitler as Chancellor of the People […] achieved absolute victory. [...]. We can describe this original state nomos as the - in contrast to the system of 14 years standing - unified, total, Völkisch-German and social people state, organic, lordly-cooperative character and Christian nature. […]. A fundamental political and at the same time ethical creed of the new state has a decisive effect on the problem of the rule of law. The rule of law is by no means buried by the victory of National Socialism, but rather it is decisively strengthened. Thanks to such a fixed, original state nomos that encompasses all social life, the constitutional state will in many cases be able to dispense with paragraph pluralism in the future . The people themselves carry the new state idea. But wherever norms are set, this primordial nomos is the guiding star for their application and interpretation, indeed it decisively fills the gaps in the laws. This makes it what I already described in my 'professional associations' (1930) as the highest ' norm of interpretation '. He himself is no positive rule of law but the top blood-like cultural standard of the German national integrity, but he has a decisive effect on the completion of, the German rule of law ', which never ever with the manchesterlich be confused -marxistischen liberal constitutional state of blessed memory. "
In the following, Tatarin-Tarnheyden refers, among other things, to Otto Gierke's "concept of the ' lordly cooperative ' [...] in which the leader principle and the ethnic cooperative marry into one unit".
Otto von Schweinichen: constitutional state according to "Germanic tradition"
In 1935 Otto von Schweinichen spoke of a "rule of law thinking that is only valid for us Germans in this way [namely that of the" Germanic tradition "]. This is now “to be continued in a modern form. Because the essence of National Socialism, the legal and state thinking it seizes, is precisely the overcoming of value-neutral positivism, which understands the positive law as an end in itself and in this respect already identifies it with the law. "Before that, von Schweinichen referred to the Sachsenspiegel, Friedrich the great as well as Plato .
Kurt Gross-Fengels
Groß-Fengels' relatively formal positivistic starting point
The publication of the Nazi era, which most closely follows a formal rule of law concept, is likely to be Kurt Groß-Fengels' 1936 Marburg dissertation The dispute about the rule of law . He quotes Weimar writings by the SPD member Gustav Radbruch, who at that time was still largely positivist-oriented, neutral to approving (p. 11 f.) And warns against too much exaggeration in the effort to "justice" directly - i. That is, without the interposition of laws and thus in violation of legal certainty - to want to realize (p. 12 - with reference to Radbruch), and he even defends Julius Stahl against the attacks of Carl Schmitt (but based on a more material reading). Furthermore, by and large, he makes it clear that this more formalistic orientation is intended to secure at least a minimum of freedom for the citizens, although he also emphasizes their economic importance, and he omits in his work - unlike all the other authors dealt with here - any anti-Semitic statement.
Groß-Fengels' argumentation strategy consists on the one hand of protecting this relatively formal understanding of the rule of law and the 19th century from the blanket, Nazi condemnation "liberally" and, on the other hand, of identifying the origins of this understanding of the rule of law as early as the 19th century. He succeeds in doing this, of course, only at the cost of considerably shortening an originally formal concept of the rule of law; and it is precisely these abbreviations that Groß-Fengels describes as "deeply [...] German"; and at the price that Groß-Fengels joins the National Socialist rejection of the Weimar Republic.
The compromises on a formal concept of the rule of law and freedom as a specifically German understanding of the rule of law and freedom
First of all, Groß-Fengels identifies what - regardless of “this or that constitutional direction” - constitutes the core of the constitutional state with the legality of the administration. He interprets judicial protection and the separation of powers as (consequently subordinate) mere means to achieve this purpose (legality of administration). (P. 9 f.) He gives the separation of powers a reading that is primarily directed against the executive: “Its [the state's] administrative organs [should] be bound to inviolable norms. The value of this thought now seemed completely secured if it was made impossible that the executive could overturn these norms of its own accord. " (P. 31) This is now the first smear that Groß-Fengels makes: In order to save the concept of the rule of law for National Socialism, legal binding must not only mean binding to formal parliamentary laws, but he must accept the National Socialist government laws as full-fledged laws: “Also then, if [...] the top level of the executive power is at the same time the highest legislature, there remains the possibility of recognizing the binding to the law as a foresight, inviolable rule as a value with regard to the lower bearers of state power. "(p. 19)
He can then identify a rule of law tradition that began before the 19th century: “It is [...] interesting to note that the legal value of predictability and predictability was not just a discovery of the 'liberal' 19th century which one could assume based on the representations of the [National Socialist] opponents of the concept of the rule of law, - but that this value was already given attention in Prussian absolutism [...]. "(p. 16) Then Gross-Fengels asserts:" This' German liberalism '[of Freiherr vom Stein and the student fraternities ] was far from being unbound, selfish or even value-neutral. ”Because“ next to the word' freedom 'stood fatherland, defensibility and honor ”(p. 24) he refers to the "German view of freedom, which already has its degree in itself," that is, limited from the outset (even without legal restrictions). (P. 39, see also p. 40 with reference to Gierke)
On this basis, Groß-Fengels Frank's speech about the “German constitutional state of Adolf Hitler” (p. 30, highlighted in the original) follows. This state is a constitutional state for two reasons: “The National Socialist state is a constitutional state; it is first because, for the sake of the people, it does not renounce to regulate the relationship between the state and the individual through legal norms; He is so because it is a matter of course for him to base his legal system on a value system based on the National Socialist, völkisch worldview, so that one cannot speak of a contradiction between the rule of law and justice. "(p. 29)
Here it becomes clear that it is the formal component that serves the people by offering at least a minimum of legal security, while the material component is withdrawn from negotiation by the people , but is simply taken for granted and practically within the power of definition of the leadership is posed.
Finally, on this basis, Groß-Fengels goes into individual "rule of law principles" (today the prevailing doctrine would speak of elements of the rule of law principle):
- He comments on the relationship between legality and the free discretion of the administration as follows. “If in the past the demand for 'possible restriction of free discretion' was raised, today we are slightly inclined to demand the most possible extension of free discretion. This demand cannot be accepted so generally and without restrictions. "
- For example, Theodor Maunz 's demand for a transition from the legality of the administration to an over-positive "legality" of the administration, Groß-Fengels makes the following concession: "In so far as the demand for legality of the administration expresses the idea that the The expression 'legality of the administration' is preferable to the other expression 'legality' of the administration 'because it repeatedly reminds the administrative officials to let not the letter but the spirit of the law decide, taking into account the situation created by the National Socialist revolution, and there, where laws really fail to draw the right from National Socialist legal thought, there is nothing wrong with it. ”(p. 34) Then Gross-Fengels makes this restriction:“ It must be emphasized again and again that it is an error would be if one wanted to assume that this meant […] d there was now room for a free application of the law based on German legal feeling. "(p. 34 f.)
- Ultimately, Groß-Fengels also supports - despite his already deparliamentarized concept of law - a softening of the law's reservation for encroachments on freedom and property. (P. 38 f.) Fundamental rights and other similarly subjective public rights (p. 42 f.) Are put into perspective accordingly (p. 40 f.) And placed under the reservation of an over-positive “state emergency law” (p. 42).
- According to the general perspective of strengthening leadership, administrative legal protection should be restricted. (Pp. 45–47)
These loosening of the legal binding, which mean points 1 to 3, as well as the judicial statehood, which latter was previously directed against the executive, also take place in the case of Groß-Fengels in the name of or at least as a concession to over-positive justice, leadership and Germanness.
Overall impression of Gross-Fengels' argument
In the case of Groß-Fengels, the most likely question that arises is the extent to which his concessions to National Socialist linguistic usage were the price that had to be paid at the time in order to be able to publish outside the underground. At the same time, the text shows the extent to which it was possible, at least in the case of academic writings, to maintain distance without falling victim to repression - which in turn allows conclusions to be drawn as to the extent to which the further concessions by other authors were not due to the circumstances, but were presumably made out of conviction.
Nevertheless, one will have to take Gross-Fengels 'compromises from a formal concept of the rule of law seriously and, even in his case, it would be a mistake to see him as a disguised resistance fighter: Gross-Fengels' also posed the question "of the value of the rule of law for the National Socialist state " (P. 8, emphasis added). But Groß-Fengels was (on the analytical level) of the conviction that the despotic (unpredictable) character of state power increases the more it is deformalized. And in terms of the (valuation) consequence - against the trend of the time - he was at least cautious with compromising a formal rule of law conception and renounced any offensive propagation of a material rule of law conception.
Similar phrases by other authors
Similar formulations as the talk of the "German constitutional state" were used by other authors.
Otto Koellreutter
Otto Koellreutter (since 1920 professor in Halle and a sympathizer of the NSDAP since 1930) published a work The National Rule of Law in 1932 and followed up with a contribution The National Socialist Rule of Law in 1935 .
“National constitutional state” replaces bourgeois individualism
According to Hilger, for Koellreutter the subordination of individual interests to the alleged “concerns of the general public” or the “ national community ” constitutes the specifically national or National Socialist concept of his constitutional state: “We want to protect [...] certain traditional values of our national community. [...]. And this traditional sense of maintaining national institutions that have become organic, such as the civil service, local self-government, but also property, sharply distinguishes the 'national constitutional state' from the Bolshevik sense, which recognizes no safeguards and guarantees for what has become historical. " According to Koellreutter, protecting these institutions as “traditional values of our national community” also means relativizing them in their individual dimension: They are protected as institutions, and not as individual rights of freedom: “In their recognition as values of the national way of life there is [...] the importance of the institutions and institutes first and foremost and only in this context is the exercise and guarantee of subjective rights meaningful and justified. "(p. 34)
From the fact that the constitutional state should now be a "national [r]", it emerged, according to Koellreutter, that "the primary legal value in it consists in the legal formation and safeguarding of our national way of life" and that the "state emergency law [...] the basis of it legal shaping of the idea of national legal certainty ”. The "national constitutional state" is therefore "anti-liberal in that bourgeois individualism [...] is no longer a political idea whose basis is deep enough and broad enough among the people to be able to support the state alone."
"Basis for the establishment of the National Socialist constitutional state"
In this respect, Koellreutter also refers specifically to "German [s] conservative [s] genes" in his opinion: "It is precisely against these [individualistic] liberal ideas, which are alien to themselves, to emphasize the old German conservative heritage, as it is in the restoration of a German folk tradition with National Socialist influences. "
Koellreutter went on to explain in his third edition German Constitutional Law on this topic in 1937 : “In a people like the German, which has always developed a particularly fine and sensitive sense of justice, the rule of law has an eternal value. The National Socialist state is an outspoken constitutional state because in it the state idea and legal idea flow from the same völkisch source and the German people as a political greatness expresses its own essence in the state and legal structure of National Socialism. "(P. 12, emphasis added)
Koellreutter later referred to the “community experience ” of the First World War : “The tremendous experience of the World War has replaced the front generation and today's younger generation with individualistic thinking with community thinking and thus created the necessary basis for the establishment of the National Socialist constitutional state. For him, it is not the legal form but the legal idea that is decisive. First comes the law, then comes the law. "(P. 15)
Justice takes precedence over legal certainty
Koellreutter pays lip service to legal security: "In every constitutional state, the individual national must feel secure in the feeling of legal security that the existence of a positive legal order gives the individual." (P. 14, emphasis in the original) But what this " Feeling "is worth, it follows from the fact that it was said in the two preceding sentences that legal certainty only has a" value in the national state "(p. 14) have. On the previous page, the positive legal order was placed under the reservation of the “necessities of political existence”: “This binding to the norms of the positive legal order” - and Koellreutter, mind you, is speaking of the legal order created by the National Socialist “political leadership” and not something of traditional Weimar laws - "[...] finds its limits in the existence and assertion of the national order of life. All measures that serve this assertion are therefore 'as state emergency rights' (cf. Law on State Emergency Defense Measures of July 3, 1934). "(P. 13 below, emphasis added)
And already on the first page of the section in question on the “National Socialist constitutional state”, with the dissolution of any formality of the legal system, it was said: “Those norms are perceived as 'just' which set themselves the task of protecting and enforcing the national way of life of the people develop. In this sense, 'Everything that is useful to the people is right, everything that harms them is injustice' (Minister of Justice Frank). ”(P. 11)
The big Brockhaus (20-volume edition from 1934)
Even the Brockhaus said in 1934 in the article "State" from the "national [n] rule of law". There it was said: “Even the Führer state as a national constitutional state affirms the regulatory force of the law”.
Heinrich Lange
In the same year, Heinrich Lange contrasted “the intrinsic value of the National Socialist constitutional state with the external form of an empty legal and power state”: “ME we have to use the term constitutional state in relation to the liberal constitutional state alone”. Lange distinguishes himself - similar to Tatarin-Tarnheyden - from Manchester liberalism, but combines this with praise for the “German middle class in the mid-19th century”, which “vigorously resisted this (materialistic) decline in the (idealistic, German) understanding of freedom ".
Roland Freisler
In 1937 Roland Freisler first emphasized the at least philologically specifically German character of the word Rechtsstaat, accused the “liberal-bourgeois constitutional state” of having “wrongly usurped the designation 'constitutional state'” and also asserted: “The National Socialist State [...] elevates the rule of law idea from a formal to a material idea. "
Hans Peter Ipsen
In 1937 Hans Peter Ipsen spoke of the “intensified French legislative state” - a Weimar Republic in power, so to speak - and already said about the (simple, non-intensified) legislative state: “The monopoly that the legislative state gives to the law and the judge in the realization of legal value is no more. Because its existence is linked to the postulate that the abstract, general law is simply the bearer of justice and only the correct subsumption of the facts under the norm enables their concrete realization. ”In contrast, it is said of the National Socialist leader state that it was“ a fairer one State that is allowed to call itself the rule of law with much greater legitimacy [than the "conquered state"] . This would no longer need such “fragile crutches” as legislation (and consequently abstraction), legal binding and subsumption; rather, the leadership makes it possible to “meet reality [...] directly”. The new state demands "the validity of nomos , the law par excellence, which has the highest, unchangeable, but concrete quality of order in itself."
Wilhelm Frick and Hans Heinrich Lammers
According to Carl Schmitt - in addition to those already mentioned here - Reich Minister of the Interior Frick and Reich Chancellor Lammers also spoke of the Nazi state as a constitutional state.
Different positions
Divergent positions, which wanted to give up the term “constitutional state” for the sake of conceptual radicalism, remained marginal. As far as can be seen, they are not handed down by political functionaries, but exclusively by younger academics.
The Carl Schmitt doctoral student , Günther Krauss, and Ernst Forsthoff (also a Schmitt student, but professor since 1933 and previously a private lecturer) should be mentioned here.
- Krauss explained: “The term constitutional state is tied to the constitutional situation of the 19th century; for the state of the 20th century it is no longer justified. "
- On the one hand, Forsthoff accused - as already quoted above - the liberal state of wrongly claiming to be a constitutional state. On the other hand, he was of the opinion that the word “constitutional state” “emerged purely from liberal thinking” and that it was therefore not just a “terminological mistake” to continue using the word. Rather, it would “necessarily trigger the associations and emotions that are bound to such a word”.
Krauss and Forsthoff were in agreement with those who used the concept of the rule of law affirmatively for National Socialism in their rejection of a formal legal understanding of the law, but, unlike the main tendency in the National Socialist discussion, they did not believe that the concept of the rule of law should break away from such a formal understanding of the law let - which is why they advocated abandoning the term.
Evaluation after 1945
Jurisprudence
40 years of repression by the prevailing doctrine
In the post-war period, those specifically positive references by National Socialists to the term “constitutional state” were initially not discussed. In 1969, Ernst-Wolfgang Böckenförde spoke in general terms of "criticism of the rule of law [...] after 1933".
1975: Brief presentation of the National Socialist "anti-liberal rule of law" concept (Klaus Marxen)
As early as 1975, Klaus Marxen gave a brief lecture on the National Socialist “anti-liberal rule of law” concept in a study focused primarily on criminal law. Marxen emphasizes that the authors of the Nazi era " wanted to free themselves from the rule of a given concept of the rule of law" and "wanted to redefine the standard it contained in order to make it applicable to the new state". (P. 68) With regard to the Nazi use of the word “constitutional state”, he sometimes, but not always, uses quotation marks. He (beyond) does not explicitly go into the justification or honesty of the National Socialist use of the term. He emphasizes the anti-formal (substantialist) character of the National Socialist concept of the rule of law: According to the program of the authors of the Nazi era, “the new state has set itself the goal of enforcing the law of the German people that is above the law, regardless of formal barriers bring. In this 'national constitutional state' the actual rule of law is only established when the 'appropriate' law of the people is realized there. "(P. 69)
1978: The thesis of the real core of the National Socialist concept of the rule of law (Ingeborg Maus)
The Frankfurt political scientist Ingeborg Maus , in contrast to the abuse and dishonesty thesis, takes the view: “The discussion about the formula of the 'National Socialist constitutional state' that began after 1933 among civil constitutional law teachers and party lawyers is anything but an episodic satyr game or a mere argument about names , […]. If the transition to the Nazi system is now [meaning: after 1933] described as a turn from the 'constitutional state to the rule of law', then the ultimate consequence of the absolutization of the legal interest in terms of content is expressed in relation to the legal form associated with it up to now: legal certainty in terms of content now begins the place of formal predictability of law. "
A similar assessment is made by Richard Bäumlin and Helmut Ridder when they consider the “wild flash flood of 'substantive rule of law'”, which was produced by jurisprudence and literature after 1933, as a “trend summit in the anti-democratic continuum” that, in their opinion, represents German history , describe.
1985: From repression to negation (Ulrich Schellenberg)
In 1985, Böckenförde made a contribution to questioning this repression with the anthology he published, Constitutional Law and Constitutional Laws in the Third Reich .
Ulrich Schellenberg gave a sober description of what was perhaps to be regarded as the rational core (minus the later National Socialist, racial-theoretical mysticism) of the criticism of a liberal understanding of the rule of law that began as early as the Weimar period. He then presents the right-wing conservative and National Socialist discussion about the adoption and appropriation of the concept of the rule of law (pp. 79-85) and finally comes to the conclusion: "Even those who advocate adopting the concept of the rule of law firmly reject the liberal rule of law idea." (P. 85)
Since Schellenberg apparently considers the liberal understanding of the rule of law to be the only true understanding of the rule of law, he can place his entire article under the blanket heading The Critique of the Rule of Law . - With this the transition from repression to denial of the National Socialist appeal to the rule of law is complete.
1993: Abuse thesis (Edin Šarčević)
In his article in the journal Rechtstheorie from 1993, Edin Šarčević speaks explicitly of the “abuse” of the concept of the rule of law, but he is of the opinion that “the National Socialist criticism of the rule of law from modern thought cannot be rejected as dubious, worthless or unacceptable . “What he means exactly remains a bit dark in the further course of the essay; It is to be assumed, however, that he approves of the National Socialist criticism insofar as it turns against a one-sided formal understanding of the rule of law and, in particular, insofar as it turns against Hans Kelsen's pure legal theory .
Šarčević is now of the opinion, however, that National Socialism represented a one-sided, substantive understanding of the rule of law and therefore - albeit from the opposite point of view - leads to the same result as the pure legal theory: Both would equate law and state, which is why the concept of the rule of law would be meaningless because at an equation of law and state constitutional states and non-constitutional states can no longer be distinguished.
1999: Dishonesty thesis (Michael Stolleis)
Even Michael Stolleis deals in its history under public law with the Nazi relying on the rule of law, but keeps them well for a dishonest, merely "tactical" meant Okkupierung of the word. At the same time, however, Stolleis makes it clear that the rejection of formalism and positivism by the National Socialist lawyers was meant seriously: “The formal understanding of the rule of law should be overcome in favor of a 'just state', the positivist concept of law by a quasi natural law , called 'substantial' was replaced, the understanding of fundamental rights as property rights of private individuals by objective guarantees, the judicial protection 'against' the state by a new, holistic judicial model. [...]. In his [the liberal state] place, a state ruled in the name of a higher justice, which was aimed at the annihilation of opponents and which believed that it could despise formal inhibitions. "
2003: First monographic treatment of the National Socialist constitutional debate (Christian Hilger)
In 2003 Christian Hilger presented a “structural analysis” of the rule of law terms in the Third Reich as a dissertation, which, in addition to the authors dealt with here, also deals with those who, without using adjective-noun additions such as “German constitutional state”, during the rule of National Socialism over the Rule of law wrote. The unifying bond of all these positions was, among other things, the rejection of the liberal (formalistic- positivistic ) equation of law and statute.
Incidentally, Hilger differentiates between authors who merely reverse the liberal concept of the rule of law [e.g. B. Freisler and Lange], modify it [e.g. B. Tatarin-Tarnheyden] or fundamentally reorganize the conceptual structure [Nicolai, Frank and Schmitt], as well as how the various authors conceptualize the moral values they claim.
Carl Schmitt biography
- Hasso Hofmann : Legitimacy versus legality. The way of political philosophy Carl Schmitt , 4th edition, Duncker & Humblot, Berlin 2002, p. 184 quotes - to judge on the basis of the subject index sources for "rule of law" - of the Schmitt essays in question on the rule of law only What does the dispute about the 'constitutional state' , as a supplement to a quote from a Schmitt article The good law of the German revolution in the Nazi organ Westdeutscher Beobachter . With "lively agreement" Schmitt quoted a "sentence by Roland Freisler, according to which a state that safeguards the 'concentrated power of the nation' [...] is a constitutional state, whereas an entity guided by 'liberalist documents' is not a constitutional state". Hofmann does not go into the historical complications and the justification of the different legal state concepts.
- According to Carl Hermann Ule (see below), Joseph W. Bendersky goes: Carl Schmitt. Theorist of the Reich , Princeton University Press, Princeton 1983 does not address Schmitt's constitutional essays from the Nazi era.
- Bernd Rüthers : Carl Schmitt in the Third Reich. Science as a reinforcement of the zeitgeist . 2nd, extended edition, Beck, Munich 1990, p. 73 f. quotes Schmitt's rule of law essay from 1934 - it seems - once, but without going into the term "rule of law".
- Andreas Koenen mentions the Schmitt essays from 1934/35 on the rule of law several times, but Schmitt's own phrase “National Socialist German rule of law” and the phrase “German rule of law Adolf Hitler” adopted by Schmitt from Frank are never quoted. Koenen does not devote any of his text analysis to the distancing quotation marks or expressions such as “under any headwords” (p. 201) or “in the name of the constitutional state” (p. 604) that Schmitt uses when he speaks of the liberal (formal) constitutional state Attention, so that the impression arises that Schmitt was absolutely (and even before 1933) a critic of the "bourgeois" (regardless of whether formal or material, liberal or conservative) rule of law and, as early as 1934, of the rule of law in general (no matter what adjectives or other attachments). On p. 463, 467 Koenen nevertheless correctly writes that Schmitt did not reject the concept of the rule of law, but rather (at least up to and including 1934) endeavored to “take the term 'constitutional state' out of the hands of the liberals”, even if "The constitutional reality of the Weimar Republic [...] had clouded Schmitt's hopes that the concept of the rule of law could [...] be interpreted in a material sense".
- Dirk Blasius ' Carl Schmitt. Prussian Council of State in Hitler's Reich (Vandenhoeck & Ruprecht, Göttingen 2001) does not contain the keyword “constitutional state” in the subject index (p. 249); In the bibliography, of Schmitt's four relevant constitutional articles, only the one from the journal for the entire political science is mentioned, but apparently not even this one in the two chronologically relevant book chapters IV. and V. (pp. 119–180).
- Probably the newest release of this genre, Reinhard Mehrings Carl Schmitt . Rise and fall. Beck, Munich, 2009, p. 354, only briefly deals with the Schmitt essays in question and presents what Schmitt has considered for the more distant future as a final decision: "Adhering to the rule of law is only a 'transitional question'", so Mehring emphasizes Schmitt's position at the time.
Koellreutter biography
Jörg Schmidt arrives at the following assessment in his Koellreutter biography: “As a result, it can be said that a further development of the concept of the [now: National Socialist] constitutional state compared to the 'national' constitutional state in the explicit recognition of law and morality as the supreme source of law under the suppression of the law. In addition, Koellreutter sees his conception of the constitutional state, which was still a program before 1933, now [in the further course of the 1930s] as realized ”. Schmidt does not explicitly address the question of whether Koellreutter's reference to the word “constitutional state” is (objectively) meaningful and / or at least (subjectively) honest. In favor of assuming at least subjective honesty, says that Koellreutter endeavored to continuously develop his position further (without sharp breaks) and sees such a further development in the history of the rule of law: “The national / National Socialist constitutional state is therefore nothing original for Koellreutter ; it is a further development of the bourgeois constitutional state. ”(p. 163) However, Schmidt identifies a tendency to contradict Koellreutters - in comparison with other Nazi authors - a somewhat stronger orientation towards the judiciary and the concepts of“ Führer state ”and“ community ”. (P. 164 f.)
Further comments
Carl Hermann Ule
Carl Hermann Ule , himself an advocate of the Führer principle during the Nazi era , published an article in 1990 entitled Carl Schmitt, The Rule of Law and Administrative Jurisdiction , which focuses on the last term in the title. Ule works u. a. out,
- that in 1934 Schmitt still "wanted to adhere to the term constitutional state for the National Socialist state",
- that it remains "[t] snot of certain concerns" Schmitt also in his manual contribution The rule of law from the beginning of 1935,
- and only the essay which appeared shortly afterwards What does the dispute about the rule of law mean? is more skeptical about the possibility of adopting the concept of the rule of law for National Socialism.
In terms of evaluation, Ule is of the opinion that Schmitt's final skepticism was right, i.e. had at least the advantage of honesty on his side against further use of the concept of the rule of law in relation to National Socialism. (P. 12) In contrast, Koellreutter, who, in contrast to Schmitt, pleaded for a further use of the concept of the rule of law, was lacking this realism. Koellreutter, of whom Ule reports that for him the “national constitutional state [...] was the conscious form of the völkisch way of life” (p. 13), could however “claim the merit for himself through [... his] commitment to have stood up for the administrative jurisdiction for the preservation of constitutional institutions. "(p. 15)
Since Schmitt lacked such a commitment, and he is said to have later described his constitutional writings from the Nazi era as “gruesome”, those voices may be right who “expressed disdain about his [Schmitt's] character traits”. (P. 17)
Wolfgang Schuller
Wolfgang Schuller dealt in the memorial for the Schmitt student Roman Schnur with Schmitt's contributions to the National Socialist discussion about the rule of law. Schuller advocates the thesis that Schmitt reported for years a (rather formally accentuated [inviolability of the law; predictable procedures, etc.]) understanding of the rule of law "soberly or with an approving undertone". Only from 1928 (less in Schmitt's Constitutional Theory than in an essay published in the same year) was this tone initially turned into disapproval and from 1933 then also into an explicit rejection of a formal understanding of the rule of law, which later - as early as 1936 - became more neutral again during the Nazi era and was explicitly represented by Schmitt in the post-war period. Schuller clearly characterizes the “National Socialist constitutional state” as a “variant” of the substantive constitutional state.
“German constitutional state” as a polemical-critical term in today's discussion
The term “German constitutional state” is sometimes used polemically and pejoratively in the present to characterize the anti-formalist understanding of the rule of law that prevails in the Federal Republic today as a continuation of a “ special German path ”.
Problems of the state of research
These explanations each leave certain problems open:
A. Schellenberg and Šarčević have to claim a true legal state concept, which the National Socialist use of the same word misses. This means that their position is merely a mirror image of the National Socialist position, which rejects the liberal constitutional state as a constitutional state and claims for itself to have the true understanding of the rule of law.
1. In order to counter this mere juxtaposition of assertion and counter-assertion, Schellenberger refers to the shaping that the concept of the rule of law experienced in the "early liberal movement of constitutionalism".
But this still leaves three difficulties: a) No word is immune from suffering shifts in meaning in the course of time. The original meaning is ultimately not a suitable critique. b) Schellenberger ignores the co-shaping that the concept of the rule of law was also influenced by conservative authors in the 19th century. c) Schellenberger avoids the question of how liberal German early and (later) national liberalism were.
2. Šarčević avoids these problems by making a logical argument instead: A meaningful concept of the rule of law should have a narrower meaning than the state.
This is undoubtedly true, but the NS position was not: 'All states are constitutional states', but 'Nazi Germany is a constitutional state and, for example, the Weimar Republic was not a constitutional state.' The sense of this National Socialist claim may be criticized, but it did not mean a pointless use of the word “constitutional state”.
The connection that, according to Šarčević, exists between the National Socialist understanding of the rule of law, which he himself describes as “material”, and a “monistic” conception of “state and law [as] identical phenomena” is not entirely clear. Šarčević writes: "His [the National Socialist constitutional state] is made up of the people as a whole" - in contrast to the people of the liberal state, which is fragmented into individuals - "and the leader as the only, concrete embodiment of the people's will and the only source of reason and law." (P. 214) This shows how fatal it is when the law is made dependent only on the vuluntas (on the will) of the legislature and is not also permeated by ratio (reason). (P. 217 f.)
It remains unclear how the appeal to reason is supposed to offer a solution if - as Šarčević himself writes - reason was also claimed for the National Socialist leader. In addition, it is an accurate description that in the National Socialist reality the concretization of the “material” legal (state) content depended on the will of the Führer. But this points to the dilemma of all natural law theories that - contrary to their claim to pure reason, divine revelation or natural evidence - they cannot do without a human authority that enforces the respective definition of the supposedly natural, reasonable, divine etc. law.
Thus, the reference to the Führer principle is an accurate description of National Socialist legal reality, but not an accurate description (and therefore also not a sound basis for criticism) of National Socialist legal theory . Because material rule of law theories in the anti-positivist sense meant by Šarčević represent by definition a dualistic view of state and law: there is a right before and above the state - and so also in the case of the National Socialist constitutional state.
As for all natural law activists, what should be law for the Nazis was not the result of a voluntaristic decision by a legislature
- "The law is not an earthly thing that can be experienced from human laws, but the eternal order of life that is only brought into shape by the law; the law should always be in harmony with the moral law in the stars and our breasts." (Nicolai)
- “The law is the soul of every state. The legislation raises it to the light of consciousness . "(Frank)
- “We are rooted in legal life, the law is our element of life. [...] We know how to separate right and wrong and have no Byzantine or state-absolutist tendencies. Above all, we can differentiate between law and arbitrariness, an empty power ruling from a legal ruling. "(Schmitt)
- “The law [...] does not arise from the state. [...]. The law […] is rooted as the people's way of life in the people, is an outflow and expression of the people's spirit . [...]. The Führer is therefore above all and above all under the duty of loyalty, under the right. "(Lange)
According to Schmitt, Freisler, Lange, Ipsen, the National Socialist constitutional state should not be a legal or legislative state; and in Carl Schmitt's notorious essay on the murder of Röhm and others , the Führer does not justify the law, but rather: "The Führer protects the law". In this way, Otto conceptualized by Schweinichen the "leaders will as [...] will to determine reduction -" and, not - " By reduction of legal"
According to this, it remains unclear how the National Socialist understanding of the relationship between state and law should be described (and rejected) as monistic if it is recognized at the same time that the National Socialist understanding of the rule of law was "material" ( substantialist ).
B. Stolleis avoids the difficulty of having to assert a true concept of the rule of law, but restricts himself to the accusation that the National Socialist actors did not take their “tactical” appeal to the rule of law seriously. With the exception of Carl Schmitt, however, this accusation cannot be substantiated on the basis of the source texts; Stolleis himself does not quote any quotes for this either.
C. The position that the National Socialists rightly claimed a substantive understanding of the rule of law is a mirror image of the same problem as Schellenberg: it may be shown that the National Socialist understanding of the rule of law is objectively - mutatis mutandis - in line with earlier and later material understandings of the rule of law . Subjectively, the National Socialist authors - apart from Schmitt's reference to Gneist and Stein and Tatarin-Tarnheyden's to Gierke - claimed that their concept of the rule of law was novelty, not only in relation to its racial theoretical foundation, but also generally not only in relation to the Weimar Republic, but also compared to the 19th century, which was generally subsumed under an undifferentiated term of “liberal”.
- It is scientifically inadequate to accept the National Socialist characterization of the 19th century as liberal and on this basis to assert a qualitative difference between the National Socialist and the pre-Weimar rule of law.
- But it would also be insufficient to simply equate both of the constitutional-monarchical and the National Socialist rule of law because of the non-democratic-parliamentary character. The specific claim to modernity, especially of “conservative revolutionaries” like Carl Schmitt (but also original National Socialists), both in relation to their own present and their retrospective criticism of the 19th century, should be included in a comprehensive analysis of their use of the concept of the rule of law.
Such a comprehensive, historically comparative analysis was not claimed by Hilger, who instead, by declaring, limited himself “to a primarily descriptive approach from which the [National Socialist] views on the concept of the rule of law are to be presented in detail”.
D. Finally, unanswered and not even asked in this clarity is the question of how Carl Schmitt's tendentious change of strategy from a substantialist appropriation of the concept of the rule of law to considering its task can be explained. This is due to the fact that some see Schmitt as a critic of “the” constitutional state par excellence, the second think that Schmitt did not represent a material but a formal concept of the constitutional state before and after National Socialism (according to Schuller), and the third, the Schmitts materially oriented Work out the strategy of appropriation most clearly, overlooked his vacillations in 1935. Ule alone suspects that the change in strategy "was supported by the investigations of his [Schmitt's] pupil Krauss". Hilger, on the other hand, suspects that Schmitt "used Krauss [...] as a mouthpiece" - but less because of the rule of law itself than in intrigues with Koellreutter. Both assumptions are not supported by sources. Hilger's hypothesis also suffers from the fact that it can explain Krauss's positioning, but does not provide an answer to the underlying question about Schmitt's (re) positioning. -
In the essays by Ule and Schuller, on the other hand, the - each different - apologetic function is particularly striking .
- Ule depoliticizes and individualizes Schmitt's Nazi involvement into a negative “character trait”. In contrast, Koellreutter's involvement with the Nazis - Ule's academic teacher - was naive, but based on the belief in the "eternal value" of the constitutional state. The fact that Koellreutter, for his part, claimed to be the more authentic National Socialist (in comparison with Schmitt), apparently played no role in Ule's assessment of “character traits”. The question of whether National Socialism with administrative courts should be seen as a lesser evil compared to National Socialism without administrative courts and therefore a commitment to National Socialism with administrative courts should be called "merit" does not even arise with Ule.
- While Ule, in accordance with the historiography that prevailed for a long time after 1945, portrays the National Socialist commitment of German legal scholars primarily as the commitment of Carl Schmitt, Wolfgang Schuller , who is not only professor emeritus at the University of Konstanz, but also, according to self-citation, is the author of the - formerly national revolutionary, Meanwhile more pluralistic - magazine Mut ist, against this stigmatization of Schmitt and reminds that the fight against the "emptiness" of a formal understanding of the rule of law was not only the concern of Carl Schmitt - admittedly not to question this fight, but to promote understanding to advertise the extremism that Schmitt had committed. - Schuller puts forward this memory with a double thrust: on the one hand, in leveling the difference between National Socialism and “actually existing socialism” and on the other hand as an obligation to the prevailing doctrine: “However, the requirement of justice found its way into post-war state thinking indirectly, and Here too, Carl Schmitt - certainly not the only one - had a positive impact with his criticism: The substantive constitutional state in the form of the welfare state has become an integral part of German state life and scientific discussion. Even the criticism of the nulla-poena sentence is, one is almost afraid to say it, has become topical in an unexpected way [in the wall rifle trials ]. "(P. 131)
literature
Sources (1933–1945) with “Rechtsstaat” in the title
- Hans Frank: "The German constitutional state of Adolf Hitler" . In: Deutsches Recht 1934, pp. 120–123.
- Kurt Groß-Fengels: The dispute over the rule of law . Nolte, Düsseldorf 1936 (also dissertation Uni Marburg 1936).
- [Otto] Koellreutter: The national constitutional state . In: Deutsche Juristen-Zeitung 1933, Sp. 517-523.
- Günther Krauss, Otto von Schweinichen: Disputation on the rule of law . Hanseatische Verlagsanstalt, Hamburg 1935 (with an introduction and an afterword by Carl Schmitt).
- Heinrich Lange: From the rule of law to the rule of law . Hanseatic Publishing House, Hamburg 1934.
- Carl Schmitt: National Socialism and the Rule of Law . In: Juristische Wochenschrift , 1934, pp. 713–718 = Deutsche Verwaltung 1934, pp. 35–42.
- Carl Schmitt: What does the dispute about the “constitutional state” mean? In: Journal for the entire political science 1935, pp. 189–201.
- Edgar Tatarin-Tarnheyden: New constitution for the national constitutional state . In: Deutsche Juristen-Zeitung 1933, Sp. 1224-1230.
Other sources
- Hans Frank (ed.): National Socialist Handbook for Law and Legislation . Rather, Munich 1935 (including a contribution by Carl Schmitt: Der Rechtsstaat [pp. 3–10]).
- Heinrich Henkel: The independence of the judge in its new meaning (= series The German State in the Present , edited by Carl Schmitt). Hanseatische Verlagsanstalt, Hamburg 1934, issue 10.
- Hans-Heinrich Lammers, Hans Pfundtner (ed.): The administration academy. A manual for civil servants in the National Socialist state . 1st edition, Spaeth & Linde, Berlin / Vienna, 1934 ff. (Therein as contribution 15 of the first edition: Otto Koellreutter: Der Nationalozialistische Rechtsstaat ).
- Otto Koellreutter: German constitutional law. A floor plan . 3rd edition, Junker and Dünnhaupt, Berlin 1937, pp. 11-17.
- Helmut Nicolai: Race and Law . Lecture given at the German Jurists Day of the Federation of National Socialist German Jurists on October 2 in Leipzig (People / Law / Economy in the Third Reich [series without volume numbering]). Reimar Hobbing , Berlin 1933.
- Edgar Tatarin-Tarnheyden: Becoming constitutional law. Thoughts on an organic and German constitution . Heymanns, Berlin 1934, esp. Pp. 16-21.
- Erich Volkmar, Alexander Elster, Günther Küchehof (eds.): The legal development of the years 1933 to 1935/36 (= concise dictionary of jurisprudence , Vol. VIII: Der Umbruch 1933/36 ). de Gruyter, Berlin / Leipzig 1937 (therein by Roland Freisler: Rechtsstaat , pp. 568–577).
Secondary literature specifically on the concept of the rule of law
- Christian Hilger: Concepts of the rule of law in the Third Reich . A structural analysis (contributions to the legal history of the 20th century, vol. 39). Mohr Siebeck. Tübingen 2003, ISBN 3-16-148057-0 , table of contents (PDF).
- Klaus Marxen: The fight against liberal criminal law . A Study of Anti-Liberalism in Criminal Law of the Twenties and Thirties. Duncker & Humblot, Berlin 1975 (also Diss. Univ. Frankfurt am Main), ISBN 3-428-03307-8 , pp. 67-73, esp. Pp. 67-69.
- Günter Meuter: Carl Schmitt's "nomos basileus" or: The will of the leader is law. About the attempt to think of the concrete order as deliverance from the evil of positivism . University of the Federal Armed Forces Munich, Neubiberg 2000, pp. 22–34 ( digitized [PDF]).
- Andrea Nunweiler: The picture of the German legal past and its actualization in the “Third Reich” . Nomos, Baden-Baden 1996 (also Diss. Univ. Hannover 1993/94), ISBN 3-7890-4241-2 , pp. 163, 190, 208, 286 f., 348–357, esp. P. 350, 352, 357.
- Ulrich Schellenberg: The criticism of the rule of law. From a liberal to a national and national socialist constitutional state . In: Ernst-Wolfgang Böckenförde (ed.): Constitutional law and constitutional law in the Third Reich (= law - justice - contemporary history , vol. 41). Müller, Heidelberg 1985, ISBN 3-8114-1485-2 , pp. 71-88.
- Jörg Schmidt: Otto Koellreutter 1883–1972. His life, his work, his time . Lang, Frankfurt am Main et al. 1995, ISBN 3-631-48087-3 , pp. 53-61, 118-125, 154-157, 162-166.
- Detlef Georgia Schulze: Rule of Law versus Democracy. A discourse-analytical attack on the most sacred of German constitutional law . In: ders., Sabine Berghahn , Frieder Otto Wolf (eds.): Rule of law instead of revolution. Juridification instead of democracy? Transdisciplinary analyzes on the German and Spanish path to modernity (= StaR P. New analyzes on the state, law and politics . Series A, Volume 2). Westfälisches Dampfboot, Münster 2010, ISBN 978-3-89691-784-3 , pp. 553-628, especially pp. 568-572.
- Michael Stolleis: The History of Public Law in Germany . Vol. 3: Constitutional and Administrative Law Studies in the Republic and Dictatorship 1914–1945 . Beck, Munich 1999, ISBN 3-406-37002-0 , pp. 330–338.
- Michael Stolleis: Que signifiait la querelle autour de l'État de droit sous le Troisième Reich? In: Olivier Jouanjan (ed.): Figures de l'état de droit. Rule of law dans l'histoire intellectuelle et constitutionnelle de l'Allemagne . Presses universitaires, Strasbourg 2001, ISBN 2-86820-180-6 , pp. 373-383, table of contents (PDF).
Secondary literature on context
-
Ernst Fraenkel : The dual state. A contribution to the theory of dictatorship . Oxford University Press, New York 1942 (reprinted: Octagon, New York 1969).
- ders .: The dual state . Law and Justice in the “Third Reich” . EVA, Frankfurt am Main / Cologne 1974, ISBN 3-434-20062-2 (later, unabridged edition: Fischer, Frankfurt am Main 1984, ISBN 3-596-24305-X ) - reverse translation of the American version, the German version of which has not been preserved stayed, with an additional preface.
- Alexander von Brünneck (ed.): Collected writings . Vol. 2: National Socialism and Resistance . Nomos, Baden-Baden 1999, ISBN 3-7890-5826-2 , pp. 267–473 - back translation of the original German version of the double state. A contribution to the state doctrine of the German dictatorship with the individual edition with a considerably expanded register and editorial introduction [p. 7-22].
- Reviews on this by Otto Kirchheimer in Political Science Quarterly from 1941, pp. 434–436, Helmut Ridder: Der Doppelstaat. The marriage of capitalism and Nazi dictatorship . In: Die Zeit , No. 24, 1970 ( digitized version ) and Ulli FH Rühl in Democracy and Law from 1979, pp. 108-110.
- Otto Kirchheimer : The Legal Order of National Socialism . In: Studies in Philosophy and Science 1941, pp. 456–475 / The legal system of National Socialism . In: ders .: functions of the state and the constitution . Ten analyzes. Suhrkamp, Frankfurt am Main 1972, pp. 115-142, ISBN 3-518-00548-0 .
- Leonard Krieger : The German Idea of freedom. History of a political tradition . Beacon Press, Boston 1957 / Univ. of Chicago Press, Chicago 1972.
- Karl Loewenstein: Law in Third Reich . In: Yale Law Journal 1936, pp. 779-815.
- Dietmut Majer: Basics of the National Socialist legal system . Leader principle, special law, unity party. Kohlhammer, Stuttgart / Berlin / Cologne / Mainz 1987, ISBN 3-17-008803-3 .
-
Franz Neumann : The Governance of the Rule of Law . An Investigation into the Relationship between Political Theories, the Legal System and the Social Background, Diss. London School of Economics 1936; New publication under the title The Rule of Law. Political Theory and the Legal System in Modern Society . Berg Publishers, Leamington Spa (UK) / Heidelberg (D) / Dover (New Hampshire, USA) 1986, pp. 286-298, 346-348 (with a foreword by Martin Jay, an introduction and editorial footnotes by Matthias Ruete, the all three are not included in the German edition).
- Translation: The rule of law . An investigation into the relationship between political theory and the legal system in a competitive society. Suhrkamp, Frankfurt am Main 1980 (with an introduction by Alfons Söllner , which is not included in the English edition ).
- Franz Neumann: Behemoth. The structure and practice of National Socialism . Oxford University Press: Toronto / New York / London 1942; 2nd edition: 1944 (with a new foreword, an appendix and an updated index); Reprints: Octagon: New York 1963, Harper: New York 1966, pp. 440-458 and 467-470, respectively.
- Translation: Behemoth. Structure and Practice of National Socialism 1933–1944 . Ed. And with an afterword by Gert Schäfer . EVA, Cologne / Frankfurt am Main 1977; later edition: Fischer, Frankfurt am Main 1984 (= 1988 = 1993), ISBN 3-596-24306-8 , pp. 509-530, 541-543.
- See the reviews by Ernst Fraenkel in Alexander von Brünneck (ed.): Gesammelte Schriften . Vol. 2: National Socialism and Resistance . Nomos, Baden-Baden 1999, pp. 576-579; first in: Neue Volks-Zeitung [New York], May 16, 1942.
- Bernd Rüthers : The unlimited design. On the change in the private legal system under National Socialism . 7th, unchanged edition with a new afterword, JCB Mohr (Paul Siebeck), Tübingen 1968, ISBN 978-3-16-152058-7 .
- Bernd Rüthers: Degenerate Law. Legal teachings and crown lawyers in the Third Reich . dtv Wissenschaft, Munich 1994, ISBN 3-423-04630-9 .
- Richard Saage: On the concept of parties and parliament in Carl Schmitt and Gerhard Leibholz . In: Das Argument , Heft 50, 1969, pp. 174–193.
- Ilse Staff (ed.): Justice in the Third Reich. A documentation . Fischer, Frankfurt am Main / Hamburg 1964; 2nd edition: Frankfurt am Main 1979, ISBN 3-596-23409-3 .
- Michael Stolleis: The History of Public Law in Germany . Vol. 3: Constitutional and Administrative Law Studies in the Republic and Dictatorship 1914–1945 . Beck, Munich 1999, ISBN 3-406-37002-0 , pp. 246-414.
- Michael Stolleis: Right in Wrong. Studies on the legal history of National Socialism . 1st edition, Suhrkamp, Frankfurt am Main 1994, ISBN 3-518-28755-9 , esp. Pp. 126-146 (2nd edition: 2006, ISBN 978-3-518-28755-2 , with a new afterword) .
- Michael Stolleis: The Law under the Swastika. Studies in Legal History in Nazi Germany . Chicago University Press, Chicago / London 1998 - especially Chapter 5: In the Belly of the Beast: Constitutional Legal Theory under National Socialism (with a Historical Introduction and a General Introduction , which are not included in this form in the German edition) .
- Publications of the Association of German Constitutional Law Teachers . Vol. 60, 2001.
Web links
- Lothar Becker: Review of the above-mentioned book by Christian Hilger. H-Net Reviews, January 2004
See also
- German law (legal tradition)
- Historical school of law
- German special route
- Theodor Maunz
- Ernst Rudolf Huber
- Kiel School
- Unconstitutional state
- constitutional state
Individual evidence
-
↑ See the following individual references to the various statements. The sources were made accessible using citations in the secondary literature:
- Ingeborg Maus : Development and functional change in the theory of the bourgeois constitutional state . In: dies .: Legal Theory and Political Theory in Industrial Capitalism . Fink, Munich 1986, urn : nbn: de: bvb: 12-bsb00040886-9 , pp. 11–82, here p. 74, fn. 191 (quoted by Hans Frank: “The German rule of law Adolf Hitler” a . In: German Law , 1934, pp. 120–123);
- Ulrich Schellenberg: The criticism of the rule of law . From a liberal to a national and national socialist constitutional state. In: Ernst-Wolfgang Böckenförde (ed.): Constitutional Law and Constitutional Law Doctrine in the Third Reich ( Law - Justice - Contemporary History , Volume 41). Müller, Heidelberg 1985, pp. 71-88, here p. 83; [Incorrect] citation in Edgar Tatarin-Tarnheyden: Basics of administrative law in the new state . In: Archive of Public Law 1934, pp. 345–358, here p. 349: “German constitutional state, der [in the original rather:“ German rule of law ”(…), the“] never and never with the manchesterlich -Marxist liberal constitutional state of blessed memory may be confused ”;
- Richard Bäumlin , Helmut Ridder : [Comment on] Art. 20 Para. 1–3 III. Rule of law . In: Richard Bäumlin and others: Commentary on the Basic Law for the Federal Republic of Germany (= series of alternative comments , edited by Rudolf Wassermann). Volume 1: Art. 1–20 . Luchterhand, Neuwied / Darmstadt, pp. 1340–1389, here p. 1359, marginal no. 24 (Quoting Carl Schmitt's reference to Frank's phrase in Der Rechtsstaat . In: Hans Frank (ed.): National Socialist Manual for Law and Legislation . Eher, Munich 1935, pp. 3–10, here p. 10);
- Wolfgang Schuller: The rule of law at Carl Schmitt. The break of time in the game . In: Rudolf Morsey , Helmut Quaritsch, Heinrich Siedentopf (eds.): State, politics, administration in Europe. Commemorative writing for Roman Schnur . Duncker & Humblot, Berlin 1997, pp. 117–133, here p. 129 (citation in indirect speech of “something original German” in relation to the rule of law as a statement by Kurt Groß-Fengels: Der Streit um den Rechtsstaat . Nolte, Düsseldorf 1936 [plus dissertation Uni Marburg 1936] [with Schuller without page number])
- and for the rest based on the literature by Christian Hilger: Rechtsstaatsbegriffe im Third Reich. A structural analysis . Mohr Siebeck, Tübingen 2003.
-
↑ Conclusion based on the source texts:
- from the grammatical structure of Frank's formulation "[d] er German constitutional state of Adolf Hitler": The "German constitutional state of Adolf Hitler" is not a "constitutional state of Adolf Hitler" (alongside other - and be it hypothetical - "constitutional state of Adolf Hitler" ), but it is specifically shaped by its supposed or actually German characteristics.
- from the juxtaposition of “German rule of law” and “Manchester-like-Marxist liberal constitutional state” in Tatarin-Tarnheyden;
- from Nicolai's postulation of a "constitutional state [...] in which the Germanic legal concept comes first" (emphasis added);
- from the comparison of (negatively rated) "Roman [m] law" and (positively rated) "German [m] common law" by Hans Frank, which is immediately followed by the talk of the "National Socialist constitutional state"; b
- from Schmitt's affirmative reference to the (alleged) attempt by Stein and Gneist, "with the help of a 'German' legal state concept aimed at the harmony of state and society, to halt the subordination of the state to civil society" (since Stein and Gneist are in German anyway wrote, "German" is not only the designation of the linguistic affiliation of the term, but implies the assertion of a specific connection between assumed German national characteristics and the content of this legal state concept).
- In the secondary literature, Nicolai's speech is about the "constitutional state [...] in which the Germanic legal concept comes first", Schmitt's appeal to Stein and Gneist and Schmitt's related phrase "with the help of a 'German' [...] legal state concept" by Christian Hilger: Terms of the rule of law in the Third Reich. A structural analysis . Mohr Siebeck, Tübingen 2003, pp. 86 and 105 cited.
- In addition, it is recognized that the expressions "German constitutional state Adolf Hitler" (Frank), "National Socialist German constitutional state" (Schmitt) and "German national socialist constitutional state" (Nicolai) do not represent an alleged "constitutional state" which just happened to be on German territory, but rather one which - according to the users of the term - was specifically characterized by its supposed German being:
- Detlef Georgia Schulze: Rule of Law versus Democracy. A discourse-analytical attack on the most sacred of German constitutional law . In: ders., Sabine Berghahn , Frieder Otto Wolf (eds.): Rule of law instead of revolution, juridification instead of democracy? Transdisciplinary analyzes on the German and Spanish path to modernity (= StaR P. New analyzes on the state, law and politics . Series A, Volume 2). Westfälisches Dampfboot, Münster, 2010, pp. 553–628, here p. 569 f. sees Heinrich Lange's remarks on the topic from the rule of law to the rule of law (and probably also the position of Schmitt ibid.) as being shaped by an "anti-Western and anti-Semitic ('alien' etc.) thrust".
- Christian Hilger: Concepts of the rule of law in the Third Reich. A structural analysis . Mohr Siebeck, Tübingen 2003, p. 88 describes Hans Frank's position as follows: “It is important to bring the German people's' inherent ',' eternal legal idea 'back to full development and no longer make it the' object of the abstract sentences of the In Hilger's view, Frank sees a certain “legal idea” (or perhaps the “legal idea” in and of itself) as peculiar to the “German people” (“very own”).
- Hilger (p. 86) describes how Nicolai is used with the words: “The expression 'constitutional state' that Nicolai […] uses […] can be implicitly connected with the sense that a state is 'constitutional state' if it the 'German rule of law' [...] realized. "(emphasis added)
- According to Hilger, the additional words Schmitt added to the word “constitutional state” serve the purpose of creating a (new) “individual term” with the overall expression: “Who now” - this is Schmitt's view according to Hilger (p. 104 ) - "If you want to speak of the Third Reich as a constitutional state, this must be clearly expressed by the speech 'of the one National Socialist German constitutional state'. In this way Schmitt wants to make it clear that the 'National Socialist constitutional state' can only be an individual term that is just as unique and 'concrete' as the National Socialist state itself. "
- Andrea Nunweiler: The picture of the German legal past and its actualization in the “Third Reich” . Nomos, Baden-Baden 1996, p. 286 f. writes in relation to Walther Merk and two other legal historians: “It is precisely in the observance of these principles [namely, that the“ state 'in the conscious formation of law is not the producer of law, but merely an obstetrician' c ”] becomes the specifically Germanic-German rule of law of the National Socialist state: 'The German state is a constitutional state.' In the Roman view, law was a power ruling by the state authorities ... e Our Germanic-medieval view is quite different. For her, the law is not power, but wisdom […]. The state is not master of law, but the servant of its implementation. It is like a magnifying glass in which the right harmony is captured and amplified. That is the content of the German constitutional state. ' f "Already wrote about the Weimar period (p. 354):" In these statements on Germanic-medieval law there sounds a clear preference for the own, the communal-emotional in contrast to the individualistic-rational, which is ascribed to the foreign Roman law , an. "On p. 405 she comes to the overall result:" The preoccupation with German legal history [...] takes place in an atmosphere of high emotionality and massive aversion to everything foreign. "
- Walter Ott, Franziska Buob: Did legal positivism render german jurists defenceless during the Third Reich? In: Waldemar Schreckenberger, Christian Starck (ed.): Practical reason, legislation and jurisprudence . Negotiations of the 15th World Congress of the International Association for Legal and Social Philosophy (IVR) in Göttingen, August 1991. Steiner, Stuttgart 1993, p. 100 leaves not only the difficult-to-translate word “constitutional state”, but the entire expression “German constitutional state Adolf Hitler's ”- like other specific Nazi terms, but in contrast to longer quotations from German texts - are untranslated.
a The title is already in the original in quotation marks, without this being meant in a distancing manner or any other reason being apparent.b"The basis [...] is point 19 of the NSDAP's program, which proposes the following thesis: 'We demand replacement of the Roman law serving the materialistic world order with a German common law.' Through this thesis, the path and tasks are clearly prescribed for us. The National Socialist legal policy demands of us: The security of the German people in a National Socialist constitutional state, [...]. ”- Hans Frank: Introduction . Principles of National Socialist legal thought and legal will. In: ders. (Ed.): National Socialist Handbook for Law and Legislation . Rather, Munich 1935, pp. XIII – XXIV, here p. XIII.c Walther Merk : Growth and Creation in Germanic Law . In: Contributions to the reorganization of German law . Announcement of the Law and Political Science Faculty Marburg for the 70th birthday of Erich Jung , Marburg 1937, p. 127–175, here p. 129.d Gustav Klemens Schmelzeisen : The law in the National Socialist worldview (= reorganization of law and economy , issue 2). Leipzig 1934, p. 58.e Omission without square brackets by Nunweiler.fGustav Klemens Schmelzeisen: From German law and its reality . Düsseldorf 1933, p. 54 f. -
↑ Cf. for example:
- Helmut Nicolai: The racial legal theory. Fundamentals of a National Socialist legal philosophy (= Gottfried Feder (ed.): National Socialist Library , No. 39). Rather, Munich 1932, p. 10: "When the Roman was asked what was legal, [...] he opened the code of law, [...] the old German [...] could not invoke an order from the state, but had to ask his conscience. "
- Carl Schmitt: The Führer protects the law . In: Deutsche Juristen-Zeitung , 1934, pp. 945–950, here p. 949: “It […] is a trick that has been practiced for a long time in anti-German propaganda, precisely this isolation process [namely the distinction between 'purely legal facts' or' Non-factuality '] to be presented as solely' constitutional '. "
- In the secondary literature, Michael Stolleis and Christian Hilger, for example, generally comment on the anti-formality of the National Socialist understanding of the rule of law (without specific reference to the adjective “German”). Maus, Bäumlin / Ridder and Schulze (with different nuances that they undertake in detail) see the characteristic of the prevailing German doctrine of the rule of law (also in large parts of history before and after the NS) precisely through their substantialism and their anti-formality characterized, in contrast to - as formal or procedural classified - Western conceptions of the rule of law and the état légal .
-
↑ In the source texts, Wilhelm Coblitz expressly spoke of a “popular German law” ( preliminary remarks . In: Hans Frank (ed.): National Socialist Handbook for Law and Legislation . Eher, Munich 1935, pp. VII-XI); Incidentally, conclusion from the National Socialist distancing from the legal expert discourse, e.g. B .:
- Schmitt's affirmative reference to Gneist's sentence “The constitutional state is not a legal state”;
- Nicolai's pejorative characterization of the Roman Empire as a “legal state” that was not a “constitutional state”;
- whose demand the lawyer should be "no longer a paragraph hero and soulless bureaucrat [...], no letter scholar and no formal lawyer" (Helmut Nicolai: Rasse und Recht . Lecture held at the German Juristentag of the Association of National Socialist German Jurists on October 2nd in Leipzig ( People / Law / Economy in the Third Reich [series without volume numbering]). Hobbing, Berlin 1933, p. 74).
- ^ Christian Hilger: Rule of Law Concepts in the Third Reich. A structural analysis . Mohr Siebeck, Tübingen 2003, pp. 211, 212: “Most of the rule of law concepts [represented during the Nazi regime] are based on an understanding of reality that does not separate what is and what should be, but rather regards the highest norms as part of a valuable nature. [...]. Furthermore, these values cannot be recognized through experience; they are obtained through 'empathy', 'intuition' or 'instinct' or 'phenomenological'. [...]. The respective highest values are predominantly included in the legal term as sources of law overriding the laws. ”(Emphasis added).
- ↑ In the source texts linked Helmut Nicolai: Rasse und Recht . Lecture given at the German Jurists Day of the Federation of National Socialist German Jurists on October 2 in Leipzig (People / Law / Economy in the Third Reich [series without volume numbering]). Hobbing, Berlin 1933, p. 13 f. (In the original, the sentence is highlighted as a whole) Law and ethics as follows: "Through the connection with the absolute ethical concept of truth [...] law appears to Nordic thinking as the highest good par excellence." See also Günther Krauss, Otto von Schweinichen : Disputation on the rule of law . Hanseatische Verlagsanstalt, Hamburg 1935, pp. 32–33, 58: “the true rule of law or - which is the same for us - the idea of an 'directly just state'”. - Accordingly, the distinction between laws on the one hand and morality, custom and morality on the other - according to the findings of secondary literature - was the main criticism (“starting point of indignation”) of the National Socialist authors of the liberal understanding of the rule of law: Christian Hilger: Rechtsstaatsbegriffe im Third Reich. A structural analysis . Mohr Siebeck, Tübingen 2003, p. 12, 205–211 on the National Socialist conceptions of the relationship between law and moral “values”.
- ↑ See in the source texts by Carl Schmitt (fn. 63) and Hans-Peter Ipsens (fn. 160) postulation of “obvious” or “immediate” justice and the above-mentioned distancing from the legal expert discourse and from - the immediacy quasi interrupting - law books and from the secondary literature: Christian Hilger: Rechtsstaatsbegriffe im Third Reich. A structural analysis . Mohr Siebeck, Tübingen 2003, p. 96 f .: "In this way [that of the ' concrete orderly thinking '], according to Schmitt, the direct, not mediated by the application of law, access to the justice of the individual case."
- ^ Quoting Frank and Schmitt from Maus and Bäumlin / Ridder, from Frank and - analogously - Nicolai from Christian Hilger: Rechtsstaatsbegriffe im Third Reich. A structural analysis . Mohr Siebeck, Tübingen 2003, pp. 87, 86 and p. 80–81 the two sections “The 'race' as a determinant of law” and “The state as a mediator of the 'Germanic spirit'”.
- ↑ Carl Schmitt criticized in National Socialism and the rule of law . In: Juristische Wochenschrift , 1934, p. 713–718, here p. 717 (= Deutsche Verwaltung 1934, p. 35–42, here p. 41), in addition, the reception of Roman law as “tremendously intellectual […] [U ] nterw [e] rf [ung] "of the" Germans "; He also sees the Weimar Constitution - as a result of the “collapse of 1919”, ie the German defeat in World War I - as “intellectual submission to foreign legal and state concepts”. For the legal historical discussion of the Weimar period, cf. Andrea Nunweiler: The image of the German legal past and its actualization in the “Third Reich” . Nomos, Baden-Baden 1996, p. 356 f .: “negative external events”; “'Penetration of Jewish legal ideas through the Bible'” (source citation); “Reception of late Roman law”; “Antiquity, humanism, rationalism, liberalism, the doctrines of state sovereignty and the ideas of the French Revolution [...] [were] primarily perceived as the foreign” - in contrast to the “Germanic constitutional state” (357 below) - “and as a threat to the Perceived own ".
- ↑ Cf. Otto von Schweinichen ("Germanic traditions" of "constitutional thinking [s]" are to be "continued in modern form" [fn. 103]) and Hilger ("yardstick for the further legal development in National Socialism" [fn. 41]) . For the legal historical discussion of the Weimar period, cf. Andrea Nunweiler: The image of the German legal past and its actualization in the “Third Reich” . Nomos, Baden-Baden 1996, pp. 353 f., 356: “Legal renewal based on the Germanic-medieval model”; "Desire for [...] renewal of law through a connection [...] to the epochs of German legal history, in which state and law appeared as genuinely Germanic".
- ↑ See the individual references in the section Evaluation in Post-National Socialist Research .
- ↑ Pages 120–123. The title is already in the original in quotation marks, without this being meant in a distancing manner or any other reason being apparent.
- ↑ In the final sentence on p. 123 the word “constitutional state” appears again: “As a Reichsjuristenführer I am convinced that we will succeed in unifying all layers of the German people in building the constitutional state of Adolf Hitler at every moment in such a way that nobody in the world can dare to attack this constitutional state because of its rights. "
- ↑ Law on the repeal of the Reichsrat on Wikisource .
- ^ Walter Pauly: The German constitutional law doctrine in the time of National Socialism . In: Publications of the Vereinigung der Deutschen Staatsrechtslehrer , Vol. 60, 2001, pp. 73-105, here p. 104: "Parallel to the apotheosis of the 'Führer' [...] the concept of law fell, which largely met its formal criteria [... ] was stripped. "
- ^ Text of the law on the rebuilding of the Reich: documentarchiv.de .
- ↑ edocs.fu-berlin.de , p. 105, fn. 65.
- ↑ For the latter reading, the fact that the Reich government - apart from the restriction in Art. 2 HS 2 - was already authorized to enact constitutional law through the Enabling Act. If the law of January 30, 1934 should have removed that restriction, it would have been obvious to decide (e.g. within the framework of the law of January 30, 1934 or by separate law) to delete that clause. The fact that this obvious and simple path was not taken, but instead Art. 4 of the law of January 30, 1934 (“The Reichsregierung can enact new constitutional law.”) Was adopted, suggests that state constitutional law is meant, the establishment of which is the imperial government was not authorized until then.
- ↑ In the same year of the journal Deutsches Recht there are u. a. also the essays by Frank Lebensrecht, not formal law (pp. 231–233) and the task of legal life not to secure the application of paragraphs, but above all to secure the life of the people (425–427). Cf. also on Frank's anti-formalism: Christian Hilger: Rechtsstaatsbegriffe im Third Reich. A structural analysis . Mohr Siebeck, Tübingen 2003, p. 89 f.
- ^ A b Hans Frank: "The German constitutional state of Adolf Hitler" . In: Deutsches Recht 1934, pp. 120–123, here p. 121. In Frank, the entire cited passage is highlighted
- ↑ "Legal security" is highlighted in Frank. In the following year, the concept of legal certainty experienced an explicit (new) definition by Frank. While the term traditionally means that one can rely on the fact that the applicable law is being applied and thereby making the exercise of state authority predictable, Frank's term is directly linked to the “maintenance of internal and external order”. "Legal security" is guaranteed when order is maintained: "If this internal and external order is guaranteed by a German legal system and a popular application of law, the principle of legal security is implemented in the most perfect sense." - Hans Frank: Introduction . Principles of National Socialist legal thought and legal will . In: ders. (Ed.): National Socialist Handbook for Law and Legislation . Rather, Munich 1935, pp. XIII – XXIV, here p. XVI. In the same year Hermann Göring made a corresponding reversal in a lecture at the Academy for German Law: Not “the individual and his egoistic goals”, but the “people” should be “legally protected and protected by the law” - and in this sense he said, that legal security during the Weimar period was "deeply shaken". He therefore demanded that the laws be interpreted not according to their letters, but according to “meaning and purpose”: “Laws remain dead letters that do not fulfill their purpose, yes, which can even do more harm than good if the guarantee is not given is that they are carried out and fulfilled everywhere and at all times according to their meaning and purpose . […] [T] he proper and appropriate application of the law […] is legal certainty ”. In the further course of the same writing, Göring then expressly rejects the state for its part remaining bound to the law against the lawbreaker: “We do not call it legal security if the state loyally makes its organs and means of power available to those who are under this law Protection want to fight him and his purposes. ”- Hermann Göring: Legal security as the basis of the national community . Hanseatische Verlagsanstalt, Hamburg 1935, pp. 5, 7, 9 above, emphasis added; see also p. 10 center, 12 below / 13 above. For the National Socialist reinterpretation of the term legal security see also Helmut Seydel : The two terms of legal security . In: Deutsche Rechtswwissenschaft 1936, pp. 84–86, here p. 85: “This concept of individual security can certainly not be our concept of legal security. [...]. The leadership has deliberately given the judge significant powers to make decisions that are less predictable but all the more fair. "
- ^ Hans Frank: "The German constitutional state of Adolf Hitler" . In: Deutsches Recht 1934, pp. 120–123, here p. 121. In Frank the quoted passage is highlighted.
- ↑ "It is not in the that ..." - or in a quote below: "It is in the that ..." - is an ancient phrase that Frank uses in the sense of "It is not so that ..." or "It is so that ..." is used.
- ^ Hans Frank: "The German constitutional state of Adolf Hitler" . In: Deutsches Recht 1934, pp. 120–123, here: p. 122.
- ^ Hans Frank: Foreword . In: Hans Heinrich Lammers , Hans Pfundtner (ed.): The administrative academy. A manual for civil servants in the National Socialist state . 2nd edition, Spaeth & Linde, Berlin / Vienna 1939, unpaginated (loose-leaf collection - the 1st edition was probably published around 1934): “The law is the soul of every state. The legislation raises it to the light consciousness. "
- ↑ See also Christian Hilger: Rechtsstaatsbegriffe im Third Reich. A structural analysis . Mohr Siebeck, Tübingen 2003, p. 88: "Although Frank often emphasizes the connection between 'blood', 'sense of justice' and law, the 'hereditary' disposition with regard to the law does not [...] expressly become a 'racial law' Increased determinism, according to which ' race ' alone determines a person in a concrete situation to a very specific decision. Rather, it is [according to Frank] only one and not the only decisive prerequisite for making the 'right' decision. "
- ^ Hans Frank: "The German constitutional state of Adolf Hitler" . In: Deutsches Recht 1934, pp. 120–123, here p. 122. emphasis added on “Weltallgemeinheit”; Original emphasis removed.
- ↑ Hans Frank: Speech . In: Helmut Nicolai, Hans Frank: Speeches held at the first rally of the professional group of administrative officials in the Association of National Socialist German Jurists on September 14, 1933 in Berlin with an introduction by Manfred Bilke (People / Law / Economy in the Third Reich [series without vol. Numbering]). Hobbing, Berlin 1933, pp. 31–45, here p. 41 f. Original emphasis, which Frank includes the entire first sentence of the quote, deleted.
- ↑ Hans Frank: Introduction . Principles of National Socialist legal thought and legal will. In: ders. (Ed.): National Socialist Handbook for Law and Legislation . Rather, Munich 1935, XIII – XXIV (XIII). The passage after the colon is highlighted in Frank.
- ↑ At this point the philosophical-ethical meaning of “materialistic” (as opposed to “ idealistic ”) and not the legal meaning of “material” (as opposed to “ formal ”) is actually meant.
- ↑ documentarchiv.de . This item on the program is also cited in the preliminary remarks (pp. VII – XI) of the "Editor [s]" (editor) of the manual , Wilhelm Coblitz. He then wrote: “The reception of Roman law was recognized, even in the pre-Nazi era, as the event that prevented the development of a German law close to the people”, and he then postulates: If the law conforms to the “sense of justice” of those who Living conditions are to be regulated, correspond, then the "opposition between morality and law, sense of justice [...] and the established legal norm" disappear.
- ↑ Hans Frank: Introduction . Principles of National Socialist legal thought and legal will. In: ders. (Ed.): National Socialist Handbook for Law and Legislation . Rather, Munich 1935, XIII – XXIV (IX). For a critique of abstractions, see: Hans Frank: Rede . In: Helmut Nicolai, Hans Frank: Speeches held at the first rally of the professional group of administrative officials in the Association of National Socialist German Jurists on September 14, 1933 in Berlin with an introduction by Manfred Bilke (People / Law / Economy in the Third Reich [series without vol. Numbering]). Hobbing, Berlin 1933, pp. 31–45, here p. 44: "The files pass, but life remains, do not allow yourself to be stamped as servant of a formal abstraction [...]." (Emphasis deleted).
- ^ Christian Hilger: Rule of Law Concepts in the Third Reich. A structural analysis . Mohr Siebeck, Tübingen 2003, p. 88.
- ↑ Schmitt refers to his own article: National Socialism and the Rule of Law . In: Juristische Wochenschrift , 1934, p. 713 f. (Meant: ff .; the article ends on p. 718) [= Deutsche Verwaltung 1934, pp. 35–42]. The two quotations can be found in the first paragraph of Section I. and in the last paragraph of Section II. - In the second place, Schmitt demands “to speak without reservation of the one National Socialist German constitutional state ” and not with an unspecific concept of constitutional state “the National Socialist State seek to dictate from outside what it has to do ”(emphasis in the original).
- ↑ Carl Schmitt: What does the dispute about the “constitutional state” mean? In: Journal for the entire political science 1935, pp. 189–201, here p. 199.
- ↑ Carl Schmitt: What does the dispute about the “constitutional state” mean? In: Journal for the entire political science 1935, pp. 189–201, here p. 199 (emphasis in the original).
- ↑ Carl Schmitt: What does the dispute about the “constitutional state” mean? In: Journal for the entire political science 1935, pp. 189–201, here p. 191 (emphasis in the original). Cf. Christian Hilger: Rule of Law Concepts in the Third Reich. A structural analysis . Mohr Siebeck, Tübingen 2003, p. 105.
- ↑ Carl Schmitt: What does the dispute about the “constitutional state” mean? In: Journal for the entire political science 1935, pp. 189–201, here p. 190.
- ↑ See the section “ First stage of development rule of law vs. Police state "of the article" Rule of law concept ".
- ^ Carl Schmitt: The rule of law . In: Hans Frank (Ed.): National Socialist Handbook for Law and Legislation . Rather, Munich 1935, pp. 3–10, here p. 4: “[B] already R. Mohl himself (Encyclopedia [Encyklopädie der Staatswissenschaften], 1872, p. 88) [has] against the talk about the opposition of law - and police state protests ”.
- ^ Carl Schmitt: National Socialism and the Rule of Law . In: Juristische Wochenschrift , 1934, pp. 713–718, here p. 714 f. (= Deutsche Verwaltung , 1934, pp. 35–42, here p. 37) (emphasis on names deleted).
- ^ Carl Schmitt: National Socialism and the Rule of Law . In: Juristische Wochenschrift , 1934, pp. 713–718, here p. 715 (= Deutsche Verwaltung 1934, pp. 35–42, here p. 37): “Only then does it emerge for all of us from our legal studies and from the administrative law textbooks known: third, the positivist stage . ”The negative points of reference for Schmitt are now Otto Mayer and Gerhard Anschütz .
- ↑ Lorenz Stein: Administration . First part. 2nd edition, Cotta, Stuttgart 1869, p. 296 f. (Emphasis in the original).
- ↑ See Stein's reference (p. 299 above) to Robert von Mohl: Literatur der Staatswissenschaften . Volume IS 297 ff.
- ↑ This could mean Johann Friedrich Herbart , who also expressed state theory in his book General Practical Philosophy ; see. Robert Mohl: The history and literature of the political sciences. Represented in monographs . First volume. Enke, Erlangen, 1855, p. 244 (where the first names are also only abbreviated).
- ↑ This could be Christian Jakob Kraus , who published on "state economics" issues and whose posthumous philosophical writings were prefaced by Johann Friedrich Herbart according to the catalog of the Berlin State Library.
- ^ Richard Bäumlin: Keyword rule of law . (PDF; 190 kB). In: Roman Herzog , Hermann Kunst , Klaus Schlaich, Wilhelm Schneemelcher (eds.): Evangelisches Staatslexikon . 3rd edition, Kreuz, Stuttgart 1987, Sp. 2806–2818, here Sp. 2806: “First of all, it should be noted that the legal state was a concept of the German state theory of the 19th century. is. This legal state is supposed to protect the state in the interest of the bourgeoisie. Society under governmental Limit conditions. Thus, the rule of law differs from the outset from the British Rule of Law , which is not only meant as a principle that limits the state, but also constitutes it (representative state or democratic) principle. "
- ↑ In fact, the verbatim quotation that Schmitt cites already ends on p. 180 (with the end of the penultimate sentence on this page).
- ↑ Cf. also on Gneist: edocs.fu-berlin.de , p. 26, where it is pointed out that Gneist - as a distinction from the “neighbors in the West”, which is interpreted as an allusion to the French Revolution, applies to Germany used the spirit of moderation and justice .
- ^ Rudolf Gneist: The rule of law . Springer, Berlin 1872.
- ↑ a b Omission by Schmitt not marked.
- ↑ Both emphasis in the original by Gneist, deleted by Schmitt without identification.
- ↑ In Schmitt spelling modernized without marking: "arbitrariness".
- ^ Emphasis in the original by Gneist; repaid by Schmitt without marking.
- ↑ On p. 180 slightly shortened compared to the quotation in Schmitt
- ^ Carl Schmitt: National Socialism and the Rule of Law . In: Juristische Wochenschrift , 1934, p. 713–718, here p. 715, right column in the middle (= Deutsche Verwaltung 1934, p. 35–42, here p. 38, right column above). Schmitt speaks of a "foreign way of thinking" in relation to "such defined words", which means the "liberal view [... of the] constitutional state" or "constitutional state construction" mentioned in the previous column.
- ^ Carl Schmitt: National Socialism and the Rule of Law . In: Juristische Wochenschrift , 1934, pp. 713–718, here p. 714 (= Deutsche Verwaltung 1934, pp. 35–42, here p. 36).
- ^ Carl Schmitt: National Socialism and the Rule of Law . In: Juristische Wochenschrift , 1934, pp. 713–718, here p. 713 (= Deutsche Verwaltung 1934, pp. 35–42, here p. 35), where Schmitt in the left column initially - with reference to Frank - from “National Socialist constitutional state” speaks and then in the right-hand column “constitutional state” in the liberal sense several times in quotation marks, u. a .: "those publicists who taught us about the 'constitutional state'" and: "Those [...] who in the case of van der Lubbe kept talking about the 'constitutional state' apparently did not primarily care about an evil crime found the just punishment. "
- ↑ Schmitt characterizes the development that followed Gneist and Stein as “the separation of law from religion and morality; [...]; the transformation of law and justice into a positivist 'civilian coercive norm network', the whole of which is justice in legal certainty, d. H. consists in its predictability; the ideal of the legal form of all state acts and the principle of the 'legality' of the administration, yes, the normative binding of the entire state life, which makes law and order the mere timetable of the bureaucratic machine. "(Carl Schmitt: What does the dispute about the" Rule of law "? In: Journal for the entire political science 1935, pp. 189–201 [192]).
- ↑ Carl Schmitt: What does the dispute about the “constitutional state” mean? In: Journal for the entire political science 1935, pp. 189–201, here p. 192 (emphasis in the original). The passage in question reads in its entirety (p. 192): “The victory of this bourgeois constitutional state over both the Christian and Hegelian morality state was decided when an author recognized as 'conservative': Friedrich Julius Stahl (Jolson) , succeeded: Hegels To discredit state philosophy among the German conservatives as “un-German” and to introduce the Christian state into the conceptual network of the constitutional state through the combination of “Christian constitutional state”. In the dispute between the Christian state and the rule of law, the astonishingly simple combination of terms of a 'Christian constitutional state' worked with the contrivance of a meaningless, 'purely formal' term. 'The rule of law does not mean the aim and content of a state at all, only the way and character of realizing them.' This famous sentence contrasts aim and content with nature and character and uses the well-known and popular separation of end and means in a special way. He had to lead to the result that not, as usual, the end could justify the means, but conversely, the means, precisely the rule of law that has become a mere means, could justify the end. "For the Stahl quote see the article rule of law concept # research controversy: Was there a stage in the formalization of the rule of law concept? . Schmitt, however, is probably not the first to read Stahl in the sense of a formal understanding of the rule of law. In any case, this reading is prepared by Richard Thoma ( Rechtsstaatsidee und Verwaltungsrechtswwissenschaft . In: Mehdi Tohidipur (ed.): Der bürgerliche Rechtsstaat . Suhrkamp, Frankfurt am Main 1978, pp. 499-524 [Reprint from: Yearbook of Public Law of the Present 1910] ) - but there in the affirmative or co-opting sense: “Only Stahl has separated [...] the delimitation of state purposes, which is always controversial and in flux, from [...] striving for a legally determined form of realizing state purposes. [...]. As a form designating, i.e. H. Subsequently, Lorenz von Stein, Otto Bähr and Rudolf von Gneist developed the idea of the rule of law. ”(501) Anschütz also noted the“ incorporation of a factual element in the concept of the rule of law ”by Stahl, but that immediately “To a certain extent be crossed out again” (520), says Thomas Lesart.
- ^ A similar attack on steel can also be found in Carl Schmitt: Der Rechtsstaat . In: Hans Frank (Ed.): National Socialist Handbook for Law and Legislation . Rather, Munich 1935, pp. 3–10, here p. 6, where Schmitt Stahl accuses steel of transforming the “constitutional state into its opposite, namely into an indifferent constitutional state” (emphasis deleted).
- ↑ See in another context Wolfgang Schuller: The rule of law at Carl Schmitt. The break of time in the game . In: Rudolf Morsey, Helmut Quaritsch, Heinrich Siedentopf (eds.): State, politics, administration in Europe. Commemorative writing for Roman Schnur . Duncker & Humblot, Berlin 1997, pp. 117–133, here p. 122: Schmitt's creation of a connection between “Judaism and the concept of the rule of law” was a “fatal denunciation”.
- ↑ Helmut Nicolai: Speech . In: ders., Hans Frank: Speeches held at the first rally of the professional group of administrative officials in the Association of National Socialist German Jurists on September 14, 1933 in Berlin with an introduction by Manfred Bilke (People / Law / Economy in the Third Reich [series without vol. Numbering]). Hobbing, Berlin 1933, pp. 15–30, here p. 30. As early as 1932, Helmut Nicolai ( The racial legal theory. Fundamentals of a National Socialist legal philosophy [= Gottfried Feder (ed.): National Socialist Library , No. 39]. Eher, Munich 1932 , P. 50): “Kant also already confessed that the Prussian state was a perfect 'republic', which means that it was a constitutional state in the sense of German law.” On p. 4 it said: “In truth we want the constitutional state based on the legal doctrine of the law of life. ”and“ the Third Reich [will] be a constitutional state. ”Furthermore, on p. 33 the adjective“ constitutional ”appears.
- ↑ Rather, the speech ends with the following sentence: "In our Führer Adolf Hitler [...] we also honor the first administrative officer of the Reich, we want to follow him for and for wherever he may lead us." (P. 30) .
- ↑ Cf. Christian Hilger: Rule of Law Concepts in the Third Reich. A structural analysis . Mohr Siebeck, Tübingen 2003, pp. 80 f., 83.
- ↑ Helmut Nicolai: The legal theory of racial law. Fundamentals of a National Socialist legal philosophy (= Gottfried Feder (ed.): National Socialist Library , No. 39). Rather, Munich 1932, p. 26.
- ↑ Helmut Nicolai: Race and Law . Lecture given at the German Jurists Day of the Federation of National Socialist German Jurists on October 2 in Leipzig (People / Law / Economy in the Third Reich [series without volume numbering]). Hobbing, Berlin 1933, p. 11: “It will […] be useful to first single out a race and to explain whether and how its particular legal concepts […] differ from their other races […]. The Nordic indigenous people can be identified as such a pure race of primeval times .
- ↑ Helmut Nicolai: Race and Law . Lecture given at the German Jurists Day of the Federation of National Socialist German Jurists on October 2 in Leipzig (People / Law / Economy in the Third Reich [series without volume numbering]). Hobbing, Berlin 1933, p. 13 f. - In the original, the entire sentence from which the quoted passage originates is highlighted.
- ↑ p. 14.
- ↑ Subtitle: Fundamentals of a National Socialist Legal Philosophy (= Gottfried Feder (ed.): National Socialist Library , Issue 39). Rather, Munich 1932.
- ↑ See also Helmut Nicolai: Die rassengesetzliche Rechtslehre. Fundamentals of a National Socialist legal philosophy (= Gottfried Feder (ed.): National Socialist Library , No. 39). Rather, Munich 1932, p. 9: “[…], the very best conditions must have prevailed in Germany because there were no laws. No laws - that doesn't mean there was no law. The law, however, was a customary law that could be recorded, but which could not be changed by a 'legal' order. Even the Sachsenspiegel [...] was not a code of law in today's sense, but only a reproduction of the existing popular law that had been in force since ancient times, which was not invented or fantasized by a legislature ”.
- ↑ Helmut Nicolai: Race and Law . Lecture given at the German Jurists Day of the Federation of National Socialist German Jurists on October 2 in Leipzig (People / Law / Economy in the Third Reich [series without volume numbering]). Hobbing, Berlin 1933, p. 38.
- ↑ Forsthoff wrote in Der totale Staat (Hanseatische Verlagsanstalt: Hamburg 1934, p. 17): “A consistent defender of liberal democracy, Hans Kelsen , rightly stated: 'Anyone who considers absolute truth and absolute values of human knowledge to be closed does not just have to one's own must also at least consider foreign, mutual opinion to be possible. That is why relativism is the worldview that the democratic idea presupposes. ' This also shows the arrogance that lies in the designation 'constitutional state' for such a state. Because it is basically a gross delusion when a state, which is incapable of executing the distinction between right and wrong, claims with special emphasis that it is a state of law ”.
- ↑ Helmut Nicolai: Race and Law . Lecture given at the German Jurists Day of the Federation of National Socialist German Jurists on October 2 in Leipzig (People / Law / Economy in the Third Reich [series without volume numbering]). Hobbing, Berlin 1933, p. 48 f. - The adjectives "total" and "dualistic" are already in quotation marks in Nicolai - probably as a sign of the quotation from Forsthoff.
- ^ New constitution for the national constitutional state . In: Deutsche Juristen-Zeitung 1933, Sp. 1224-1230. The word “constitutional state” appears in columns 1225 and 1229 except in the heading. - Hilger did not evaluate this article.
- ↑ Edgar Tatarin-Tarnheyden: Becoming state law . Thoughts on an organic and German constitution. Heymanns, Berlin 1934 19, p. 21, fn. 29.
- ^ Edgar Tatarin-Tarnheyden: New constitution for the national constitutional state . In: Deutsche Juristen-Zeitung 1933, Sp. 1224–1230, here Sp. 1225 including fn. 4; see. also: ders .: Becoming constitutional law . Thoughts on an organic and German constitution. Heymanns, Berlin 1934, p. 33 f. (on "German Abroad") and 34–39 (on graduated nationality).
- ^ Law for the Restoration of the Professional Civil Service of April 7, 1933
- ^ Edgar Tatarin-Tarnheyden: New constitution for the national constitutional state . In: Deutsche Juristen-Zeitung 1933, Sp. 1224–1230, here Sp. 1225, fn. 4.
- ^ Text of the law on Reich citizenship: documentarchiv.de - corrected orthography.
- ↑ See there especially the sections "Political Motives" and "National Socialism".
- ^ New constitution for the national constitutional state . In: Deutsche Juristen-Zeitung 1933, Sp. 1224–1230, here Sp. 1227; see. in addition the references to the corresponding key words in the "subject index" of ders .: Becoming constitutional law. Thoughts on an organic and German constitution . Heymanns, Berlin 1934, p. 179: "organic", "organic state", "organic worldview", "organic economy".
- ↑ Edgar Tatarin-Tarnheyden: Basics of administrative law in the new state . In: Archives of Public Law 1934, p. 345–358, here p. 348: “Reichsjustizkommissar Frank has rightly placed the rule of law in the foreground when the National Socialist state wanted to renew itself, for example at the German Jurists' Conference in Leipzig in 1933 and most recently the Association of National Socialist German Lawyers in Berlin on November 15th J. “Ders .: Becoming constitutional law. Thoughts on an organic and German constitution . Heymanns, Berlin 1934, p. 18: "Frank in particular has repeatedly [...] declared this commitment to the rule of law."
- ↑ Edgar Tatarin-Tarnheyden: Basics of administrative law in the new state . In: Archive of Public Law 1934, pp. 345–358, here p. 348. “Postulat der Praxis Staatsppolitik” also in: ders .: Werdendes Staatsrecht . Thoughts on an organic and German constitution. Heymanns, Berlin 1934 19th
- ↑ Edgar Tatarin-Tarnheyden: Basics of administrative law in the new state . In: Archives of Public Law , 1934, pp. 345–358, here p. 346.
- ↑ See the "Ur-Nomos" in Tatarin-Tarnheyden ders .: Becoming state law . Thoughts on an organic and German constitution. Heymanns, Berlin 1934, p. 19 and the other passages mentioned on this subject in the “Subject Index” (p. 181).
- ↑ Cf. in this context the article Third Way , meanings “alternative concepts to socialism and capitalism” and “national revolutionary cross-front ideologies ”.
- ↑ Edgar Tatarin-Tarnheyden: Basics of administrative law in the new state . In: Archive of Public Law 1934, pp. 345–358, here p. 348 f.
- ^ Günther Krauss, Otto von Schweinichen: Disputation on the rule of law . Hanseatische Verlagsanstalt, Hamburg 1935, pp. 32–33, 64.
- ^ Günther Krauss, Otto von Schweinichen: Disputation on the rule of law . Hanseatische Verlagsanstalt, Hamburg 1935, p. 59. See also p. 63 with - albeit only hypothetical [“to be considered”] - reference to the “Germanic tribal states” and the “German Middle Ages”. Regarding von Schweinichen, see also Christian Hilger: Rule of Law Concepts in the Third Reich. A structural analysis . Mohr Siebeck, Tübingen 2003, pp. 119–129.
- ↑ On p. 29 below, Groß-Fengels expressly speaks of the “ formal regulatory value of law” (emphasis added). Cf. p. 11 the example of right-hand and left-hand driving: “The norm 'drive on the right' may claim validity, not because the norm 'drive on the left' would be the more unfair one - but because simply because of its existence it is a value of order and safety represents ".
- ↑ Kurt Groß-Fengels: The dispute over the rule of law . Nolte, Düsseldorf 1936 (see dissertation Uni Marburg 1936), p. 50.
- ^ Christian Hilger: Rule of Law Concepts in the Third Reich. A structural analysis . Mohr Siebeck, Tübingen 2003, p. 178 deals with Groß-Fengels under the heading “Approaching the 'bourgeois-liberal' concept of the rule of law”.
- ↑ In his introduction, Groß-Fengels ( The dispute about the rule of law . Nolte, Düsseldorf 1936 [plus dissertation Uni Marburg 1936]) makes a difference between science and propaganda (p. 1 f.). In doing so, he made considerable concessions to the politicized understanding of science at the time, but insists that "[...] the people would be in no way served if science believed that it could get by with slogans and a few strokes of the pen". Nevertheless, even Gross-Fengel's writing is not analyzing legal norms, but - apart from a few historical-analytical passages - primarily programmatic.
- ↑ "Even then, such a deviation [from the rules] can be perceived as unjust if in individual cases immediate considerations of equity speak in favor of deviating from the rule." The latter must therefore remain an "exception" case (p. 13, footnote 69 ). It is "not a defect if the rule of law is 'the opposite of the directly just state'" (p. 20), which Schmitt criticizes the "bourgeois-individualistic" constitutional state (Carl Schmitt: What does the dispute about the "constitutional state “? In: Journal for the entire political science 1935, pp. 189–201, here p. 190]). (In Schmitt, the passage quoted by Groß-Fengels is emphasized; in Groß-Fengels the emphasis is deleted.)
- ↑ Kurt Groß-Fengels: The dispute over the rule of law . Nolte, Düsseldorf 1936 (also Diss. Uni Marburg 1936), p. 20 f.
- ↑ Cf. p. 38: “It is not possible to simply enlarge the scope of duties of the police from their organic position, their organic position is determined by law.” P. 39: “Predictability is something that cannot be denied Value. It is the prerequisite for all human enterprise; a flourishing economic life is unthinkable without them. In the foreseeability, the core of what is called legal certainty is expressed. [...] That in an order that allows foreseeability the irreplaceable development of creative powers of the individual subject to order is given a special drive, [...] interventions in freedom and property [must] as important pillars of the life of the individual are especially given by law regulated and made predictable ”(emphasis added). See also p. 15 (2nd paragraph, approx. 2nd half) and p. 32 (“unbreakable norm to which the individual national can refer to the state administrative body”). In contrast to Frank and Göring, Gross-Fengels does not undertake a substantialist national community reinterpretation of the concept of legal security. Unlike other authors, he does not oppose the “people” to the individual, but to the state; BS 19 below, 20 above: "For the sake of the people he [the state] recognizes the value of self-restraint [...]." / "Restriction of the state [...] benefits the people". See also p. 14 above, where he tries to limit the “[r] evolution [ar]” dynamics of National Socialism in the name of the “good of the people” and 29 above (regulation of the “relationship between the state and the individual” through legal norms "" For the sake of the people ").
- ↑ Schmitt's racist criticism of Stahl is neutral with the words, "No matter how much one may be convinced that Stahl's philosophy cannot deny the racial origin of its creator," and then he makes the following objection: "It remains one The fact that Stahl, with his extremely theocratic views, sets the state's goal of fulfilling very specific ideals of justice, ”with which Groß-Fengels (p. 20) Schmitt's connection between Stahl's Jewish origin and his alleged formalistic legal state indifference to“ justice ”the ground withdraws.
- ↑ The presentation of the 19th century in Heinrich Lange's book Vom Rechtsstaat zum Rechtsstaat (Hanseatische Verlagsanstalt: Hamburg 1934) criticizes Groß-Fengels as follows: “It remains [...] the impression that he [Lange] is first with regard to the 19th century paints the devil on the wall in order to then want to say that it wasn't really that bad [means: liberal] ”p. 22. Cf. also the summary by Christian Hilger: Rechtsstaatsbegriffe im Third Reich. A structural analysis . Mohr Siebeck, Tübingen 2003, pp. 185-187.
- ↑ The dispute over the rule of law . Nolte, Düsseldorf 1936 (see dissertation Uni Marburg 1936), pp. 22, 28.
- ↑ On this difference, see Ingeborg Maus: Bürgerliche Rechtsstheorie und Faschismus. On the social function and current effect of Carl Schmitt's theory . 2nd edition, expanded to include a new foreword, Fink, Munich 1980, urn : nbn: de: bvb: 12-bsb00040752-7 , pp. 37–39, especially pp. 38 f., Footnote 76 ( digitized version ). Regarding the compromises that Groß-Fengels makes from positivism, see also p. 13 of his book Der Streit um den Rechtsstaat , Nolte, Düsseldorf 1936 (plus dissertation Uni Marburg 1936): In certain cases the law is “just a mouthpiece for law ", Just" declaratory ".
- ↑ In order to underpin this demarcation of legality from what is in his opinion exaggerated liberalism, he continues on p. 18: “Establishing the recognition of the value of an order that allows foreseeability by absolutism is especially significant because this recognition is not a weak concession to the subjects. "
- ↑ Cf. on the following the summary by Christian Hilger: Rechtsstaatsbegriffe im Third Reich. A structural analysis . Mohr Siebeck, Tübingen 2003, pp. 188-196.
- ↑ Kurt Groß-Fengels: The dispute over the rule of law . Nolte, Düsseldorf 1936 (see dissertation Uni Marburg 1936), p. 33.
- ↑ Groß-Fengels refers to: Theodor Maunz: New foundations of administration 1934, p. 33.
- ↑ Ultimately, for Groß-Fengels too, it is “dangerous legal positivism, which, in order to avoid injustice, may allow analogy , but must reject any direct norm of justice outside the law” (p. 14).
- ↑ Cf. p. 33 top and middle: “leadership in administration” cannot be made impossible or “given wide scope” in certain areas.
- ↑ Cf. p. 38: “In the German perspective, the state also appears to be a legal entity [with reference to Nicolai, Gierke and the at least temporarily strongly folk-oriented legal historian Walther Merk ]. Neither the individual nor the state can be the starting point, but a harmonious relationship between the state and the individual that corresponds to the legal view of National Socialism, [...]. "P. 40:" This [which in Gierke's sense] German freedom has nothing to do with licentiousness and Freedom ".
- ↑ See also, for example, p. 45: “It corresponds to nat. soz. [ie National Socialist] thinking about justice, if [...]. "
- ↑ Cf. p. 18, fn. 81: “It is true that the absolute state [of the 17th century] can be called a 'constitutional state' insofar as it has never been a despotism, that is, never a state in which the ' instantaneous The will of the ruler for himself and for others is the only object of organized coexistence '. (Mohl Enc. P. 371). […] On the other hand, while the previous terminology was retained - the relationship between the state and the subject was not regulated by a legal system ”(emphasis added), which is why it is better to speak of an“ untrained constitutional state ””. (The passage “not regulated by a legal system” probably refers to the fact that Groß-Fengels does not regard [internal] administrative norms as legal norms [p. 17, fn. 78].)
- ↑ Michael Stolleis: Koellreutter, Otto. In: New German Biography (NDB). Volume 12, Duncker & Humblot, Berlin 1980, ISBN 3-428-00193-1 , p. 324 f. ( Digitized version ) .: “His path as full professor led from Halle (1920) to Jena (1921), where he has also been a part-time judge in Thuringia since 1921. Higher Administrative Court was active. […] The Reichstag elections of September 14, 1930 led him […] to the side of National Socialism ”. "[A] n die Seite" is probably not yet a member (see the article " Otto Koellreutter ", where the entry is dated to 1933). Koellreutter himself attached great importance to the statement that he had already been a member in mid-April 1933 and that he had signed an appeal for Hitler (for the Reich President election) in the summer of 1932 (BA / R 43 II No. 906b, p. 69, quoted according to Andreas Koenen: The Carl Schmitt case. His rise to the position of “Crown Lawyer of the Third Reich . ” Scientific Book Society, Darmstadt 1995, p. 528, fn. 89). A specific entry date is not mentioned there either, except that Koellreutter said he did not want to join in April 1932. See also Koellreutter's book Reichstag elections and state theory (= Law and State in Past and Present , Vol. 76). Mohr (Siebeck), Tübingen 1930.
- ↑ Contribution 15 from 1935 to the loose-leaf collection published by Hans-Heinrich Lammers and Hans Pfundtner, Die Verwaltungs-Akademie. A manual for civil servants in the National Socialist state . 1st edition, Spaeth & Linde, Berlin / Wien 1934 (?) Ff. Cf. the OPAC entries of the Austrian and German National Libraries and the following incomplete or unclear citations: Jörg Schmidt: Otto Koellreutter 1883–1972. His life, his work, his time . Lang, Frankfurt am Main et al. 1995, p. 118, fn. 554; Kurt Groß-Fengels: The dispute over the rule of law . Nolte, Düsseldorf 1936 (see dissertation Uni Marburg 1936), p. 12, fn. 63; Christian Hilger: Concepts of the rule of law in the Third Reich. A structural analysis . Mohr Siebeck, Tübingen 2003, p. 236 f .; The dating by Ingeborg Maus is probably incorrect : Development and functional change in the theory of the bourgeois constitutional state . In: dies .: Legal Theory and Political Theory in Industrial Capitalism . Fink, Munich 1986, urn : nbn: de: bvb: 12-bsb00040886-9 , pp. 11–82, here p. 74, footnote 191 ( digitized version ). In the 2nd edition from 1939, the article does not seem to have been published again (article 15 is titled Der deutsche Führerstaat and comes from Lammers; article 25, The Political Forms of Today's World of States, comes from Koellreutter ).
- ^ Christian Hilger: Rule of Law Concepts in the Third Reich. A structural analysis . Mohr Siebeck, Tübingen 2003, p. 35 (with Hilger without quotation marks), p. 56 and 63 (with Hilger already in quotation marks), see also p. 43, 46 (last sentence in the main text), 67 f.
- ^ Otto Koellreutter: The national constitutional state . On the change in the German state idea. Mohr, Tübingen 1932, p. 32 f .; see. Christian Hilger: Concepts of the rule of law in the Third Reich. A structural analysis . Mohr Siebeck, Tübingen 2003, p. 43, fn. 158.
- ^ Otto Koellreutter: The national constitutional state . On the change in the German state idea. Mohr, Tübingen 1932, p. 30 above ("Skepticism against the exaggeration of the fundamental rights position by the liberal constitutional law doctrine"), p. 30 below, 31 above ("fundamental difference between institutional guarantees that are intended to grant certain institutions special protection , and the typical fundamental rights of freedom of a civil constitution based on the rule of law ”) - each with an approving reference to Carl Schmitt.
- ^ [Otto] Koellreutter: The national constitutional state . In: Deutsche Juristen-Zeitung 1933, Sp. 517-523, here Sp. 517 f. So again: The national constitutional state . On the change in the German state idea. Mohr, Tübingen 1932, p. 35: “The state emergency defense law is [...] the legal design of the idea of national legal security. If the civil constitutional state knows only the concept of individual legal security, [...], the 'national constitutional state' establishes the primacy of security in the national way of life. ”(The quotation marks around“ national constitutional state ”are probably used as a self-citation or as an emphasis on the new concept, but not to be understood as a distancing of Koellreutter.)
- ^ [Otto] Koellreutter: The national constitutional state . In: Deutsche Juristen-Zeitung 1933, Sp. 517-523, here p. 519.
- ↑ What is "reason" meant exactly this, is hardly clear even with attraction of the two preceding sentences: "As in the folkish State the political experience of the people and the nation and the feeling of being alive for the honor in each fellow must , as must also the national legal idea can be lived through the feeling of justice of the national comrades and experienced by each individual national comrade . Therein lies mainly that each member of the race in the other fellow sees the legal community, and that the per [s] önlichkeit and honor each fellow is a untastbares legal interest "- Otto Koellreutter. German constitutional law. A floor plan . 3rd edition, Junker and Dünnhaupt, Berlin 1937, p. 12, all emphasis added.
- ↑ Cf. p. 13 above: "Every constitutional state contains [...] a positive legal order that standardizes the political way of life of the people, insofar as this is compatible with the necessities of political existence." (Emphasis added).
- ^ State . In: The big Brockhaus. Handbook of knowledge in twenty volumes . Vol. 18. Brockhaus, Leipzig 1934, pp. 3–8, here p. 7.
- ^ Heinrich Lange: From the rule of law to the rule of law . A presentation. Mohr, Tübingen 1934, pp. 3, 41, fn. 2.
- ↑ See p. 17: “The German bourgeoisie in the middle of the 19th century still vigorously resisted the decline of the idea of freedom. [...]. A sense of duty and a sense of community had not yet become empty phrases for him. The bourgeoisie was certainly liberal, nationally liberal, but it was separated from the unrestrained liberalism of Manchester by a world. ”Cf. Kurt Groß-Fengels: The dispute about the rule of law . Nolte, Düsseldorf 1936 (plus dissertation Uni Marburg 1936), pp. 22, 24, who weighted these "German [n]" pages of the 19th century, which he rated as positive, even more than Lange. Carl Schmitt, on the other hand, also sees the German areas in the 19th century - apart from the hesitant resistance v. a. of stone and gneiss - largely flooded by the "Ideas of 1789".
- ^ Roland Freisler: Rule of Law . In: Erich Volkmar , Alexander Elster, Günther Küchehof (eds.): The legal development from 1933 to 1935/36 (= concise dictionary of jurisprudence , Vol. VIII: Der Umbruch 1933/36 ). de Gruyter, Berlin / Leipzig 1937, pp. 568–577, here p. 567: “The rule of law is a term developed in German political science, which was probably first used by Mohl […] as a well thought-out term. The term and the word coining found for it found its way into the political world literature without foreign languages being able to form an independent word for it . ”(Emphasis added, original emphasis on the name“ von Mohl ”deleted).
- ^ Roland Freisler: Rule of Law . In: Erich Volkmar , Alexander Elster, Günther Küchehof (eds.): The legal development from 1933 to 1935/36 (= concise dictionary of jurisprudence , Vol. VIII: Der Umbruch 1933/36 ). de Gruyter, Berlin / Leipzig 1937, pp. 568–577, here p. 574.
- ^ Roland Freisler: Rule of Law . In: Erich Volkmar , Alexander Elster, Günther Küchehof (eds.): The legal development from 1933 to 1935/36 (= concise dictionary of jurisprudence , Vol. VIII: Der Umbruch 1933/36 ). de Gruyter, Berlin / Leipzig 1937, pp. 568–577, here p. 573.
- ^ Hans Peter Ipsen: Politics and Justice. The problem of judicial acts of sovereignty . Hanseatische Verlagsanstalt, Hamburg 1937, p. 162.
- ^ Hans Peter Ipsen: Politics and Justice. The problem of judicial acts of sovereignty . Hanseatische Verlagsanstalt, Hamburg 1937, 306.
- ^ Hans Peter Ipsen: Politics and Justice. The problem of judicial acts of sovereignty . Hanseatische Verlagsanstalt, Hamburg 1937, p. 310 (emphasis in the original).
- ^ Carl Schmitt: The rule of law . In: Hans Frank (Ed.): National Socialist Handbook for Law and Legislation . Rather, Munich 1935, pp. 3–10, here p. 9 f., Where Schmitt does not give any sources.
- ^ Günther Krauss, Otto von Schweinichen: Disputation on the rule of law . Hanseatische Verlagsanstalt, Hamburg 1935, pp. 9–32, here p. 9.
- ↑ Ernst Forsthoff, [Review on:] Otto Koellreutter: Der Deutsche Führerstaat . In: Juristische Wochenschrift , 1934, p. 538.
- ↑ In the aforementioned review, Forsthoff particularly opposed the sentence nulla poena sine lege (no punishment without a law), and Krauss criticized the rule of law thinking that for them "the functional legality of a constitution is more important than its substantive legitimacy" ; Even as a polemical counter-term to the “constitutional state”, the “constitutional state” is no longer suitable, because under the rule of National Socialism no one advocates the “constitutional state” (ders., Otto von Schweinichen: Disputation über den Rechtsstaat . Hanseatische Verlagsanstalt, Hamburg 1935, pp. 9-32 [16, 30]). On Krauss cf. Christian Hilger: Concepts of the rule of law in the Third Reich. A structural analysis . Mohr Siebeck, Tübingen 2003, pp. 20–31, here p. 27: “For Stahl's constitutional thinking”, “there would no longer be any 'substantial' and ultimate purposes”.
- ↑ Origin and change of the concept of the rule of law . In: Horst Ehmke , Carlo Schmid , Hans Scharoun (eds.): Festschrift for Adolf Arndt on his 65th birthday . EVA, Frankfurt am Main 1969, pp. 53-76, 158, footnote 56 (emphasis added).
- ↑ Klaus Marxen: The fight against liberal criminal law . A Study of Anti-Liberalism in Criminal Law of the Twenties and Thirties. Duncker & Humblot, Berlin 1975 (also Diss. Uni. Frankfurt am Main), pp. 67-69.
- ^ For example, not on p. 69: "their [the anti-liberal] rule of law concept"; also on the same page: "in Henkel's view a constitutional state".
- ^ Ingeborg Maus : Development and functional change in the theory of the bourgeois constitutional state . In: dies .: Legal Theory and Political Theory in Industrial Capitalism . Fink, Munich 1986, urn : nbn: de: bvb: 12-bsb00040886-9 , pp. 11–82, here p. 43.
- ↑ Richard Bäumlin, Helmut Ridder, [commentary on] Art. 20 paras. 1–3 III . Constitutional state. In: Richard Bäumlin and others: Commentary on the Basic Law for the Federal Republic of Germany (= series of alternative comments , edited by Rudolf Wassermann). Volume 1: Art. 1–20 . Luchterhand, Neuwied / Darmstadt, pp. 1359, 1362, Rn. 24, 26.
- ^ Ulrich Schellenberg: The criticism of the rule of law . From a liberal to a national and national socialist constitutional state. In: Ernst-Wolfgang Böckenförde (ed.): Constitutional law and constitutional law in the Third Reich (= law - justice - contemporary history , vol. 41). Müller, Heidelberg 1985, pp. 71-88, especially pp. 73-78.
- ^ Edin Šarčević: Misuse of a term - the rule of law and National Socialism . In: Rechtstheorie 1993, pp. 205–223, here p. 207.
- ↑ See p. 216: "Every reduction of the rule of law to formal or material elements leads [...] to a rule of law concept in which the boundaries between 'law' and 'state' are no longer recognizable." (Emphasis added), which Šarčević can lead to a rejection of a purely formal understanding of the rule of law. - On the question of whether, as Šarčević thinks indeed a both formal and substantive law understanding may be logical, see Formal and material law # Formal and substantive law .
- ↑ Cf. p. 222: "The pure doctrine of law does not allow the constitutional state to constitute itself as an autonomous object."
- ↑ Cf. p. 214: "He [the" National Socialist constitutional state "] could only be conceived as a material constitutional state concept" (emphasis in the original).
- ↑ Cf. p. 221: “An almost identical 'result' resulted from the pure doctrine of law, which, as the antipode of National Socialist legal demagogy, shows the same symptoms: […]. Kelsen's position is […] methodological-monistic, […], because in pure legal theory, state and law are identical phenomena. "
- ↑ Cf. p. 208: "The basic problem lies within the dilemma of whether the rule of law is at all possible as a meaningful term in the doctrine of identity or in the monistically conceptualized relationship between law and state."
- ↑ Michael Stolleis: The history of public law in Germany . Vol. 3: Constitutional and Administrative Law Studies in the Republic and Dictatorship 1914–1945 . Beck, Munich 1999, p. 332: "tactical battle", "tactical lip service to the 'constitutional state'", p. 334: "He [Schmitt] would have liked to have completely erased the term 'constitutional state'", "half-hearted defense, if he Is understood as 'substantial' ”; "That is why [as a means in the struggle for supremacy in National Socialist constitutional law] he [Koellreutter] propagated the 'national constitutional state'", p. 335: "Schmitt himself emphasized [...] that adherence to terms such as 'constitutional state' [...] implied the formalistic, bourgeois, human, legal protection-oriented thinking of the 19th century. ”See also p. 329:“ Facades of a 'constitutional state' ”- but probably not meant there in a material sense. Indeed, in the Schmitt essays from 1935 - unlike in those from 1933 and 1934 as well as the period before and after National Socialism - there are statements that open up the prospect of renouncing the term "constitutional state", e.g. . For example: “In a tripartite political unity, living in state, movement and people, the word 'constitutional state' should become superfluous to the same extent as the development of a fundamentally new order is realized. [...]. Particularly in this last impossibility [the impossibility to speak of “legal empire” analogously to “constitutional state”] it becomes apparent that the combination of “constitutional state” is tied to both the legal and the state concept of a specific, dualistic state and society remains. ”- Carl Schmitt: What does the dispute about the“ constitutional state ”mean? In: Journal for the entire political science 1935, pp. 189–201, here p. 201. Of course, this does not mean that Schmitt was only “half-hearted” with regard to the defense of the substantive constitutional state and used the term “constitutional state” (regardless of whether formally or understood in material terms) “completely eradicated”, but the - very cautious (p. 200: “question looking to the coming centuries”; “a very theoretical question”; “hardly concerns a difficult, 'exact' way) prognosis to be made ”) - Addressing this perspective results from a skepticism as to whether what Schmitt really wants (namely a complete deformalization of the rule of law) is really possible . Cf. Christian Hilger: Rule of Law Concepts in the Third Reich. A structural analysis . Mohr Siebeck, Tübingen 2003, p. 101: "Schmitt warns [...] of the possibility that with the use of the word 'constitutional state' traditional 'bourgeois-liberal' meanings could find their way into National Socialist legal life." (Emphasis added) And His concerns concern - as in the quotation (the regret that the word "constitutional state", but not the word "Rechtsreich" [in the same sense]) is to be seen - not the word component "law", but the Part of the word “-staat”, which is to be understood in the context of the anti-statistic movement orientation claimed by National Socialism.
- ↑ Michael Stolleis: The history of public law in Germany . Vol. 3: Constitutional and Administrative Law Studies in the Republic and Dictatorship 1914–1945 . Beck, München 1999, pp. 333, 338. In contrast to this, p. 336: “The regime's tactics to speak out loudly for law and order and to continue to govern with the help of laws nurtured the illusion that it was with the traditional legal form also wanted a legal binding. "
- ^ Christian Hilger: Rule of Law Concepts in the Third Reich. A structural analysis . Mohr Siebeck, Tübingen 2003, pp. 12 f., 13: “The jurisprudential literature during the Third Reich identifies the legal understanding on which the 'bourgeois-liberal' concept of the rule of law is based with a legal concept whose extension only includes legal norms. Law is exclusively statutory law, which is conceptually differentiated from 'morality', 'custom' and 'morality'. The assumed refusal to include 'moral' elements in the definition of the legal term is the starting point of the indignation at the 'bourgeois-liberal' legal term [...]. In the identification of law and law, one sees at the same time an opposition between law and 'justice' [...]. Laws as such are flawed because they are the result of an 'arbitrary' and accidental compromise between the persons and parties represented in parliament [...]. The law-based and 'normativistic' understanding of the 'bourgeois-liberal' legal doctrine is highlighted as a typical expression of 'Jewish legal thought'. […] The 'bourgeois-liberal' rule of law […] does not recognize […] over-positive norms, which could impair legal security, not as law. [...]. Instead of recourse to over-positive norms, she tries to ensure the predictability and transparency of law in favor of the individual by way of legal dogmatic systematization and differentiation. ”(Emphasis added) - Hilger puts“ bourgeois-liberal ”in distancing (or quoting) quotation marks and speaks accordingly from a “historical picture” (p. 12), but the question of whether this picture was correct (or whether - perhaps for reasons of profiling - it exaggerates the liberal and positivistic character of the pre-National Socialist understanding of the rule of law) is beyond the scope of his investigation. It is to be assumed that he uses the quotation marks in a distancing and not quoting manner, as he nowhere gives a source for the phrase “bourgeois-liberal constitutional state”. In fact, it can be found, for example, in Schmitt's article Die deutscher intellectuals . In: Westdeutscher Beobachter from May 31, 1933, quoted from Andreas Koenen: The Carl Schmitt case. His rise to the position of “Crown Lawyer of the Third Reich” . Wissenschaftliche Buchgesellschaft, Darmstadt 1995, p. 368. Freisler spoke of the “liberal-bourgeois constitutional state” (see above). On the problem of the anti-bourgeois and anti-capitalist rhetoric of the Nazis, cf. the section on relationship to capitalism of the article National Socialism .
- ↑ See in detail the table of contents (PDF) of Hilger's book.
- ↑ See pp. 1 and 2 of the May 12, 1933 edition.
- ↑ Bernd Rüthers: Unlimited interpretation . 6th, extended edition, Mohr, Tübingen 2005, table of contents (PDF; 218 kB).
- ^ Andreas Koenen: The case of Carl Schmitt. His rise to the position of “Crown Lawyer of the Third Reich” . Wissenschaftliche Buchgesellschaft, Darmstadt 1995. See in the register the S. v. Bodies mentioned under the rule of law and also p. 109, p. 462–465, 467–469, 481, 482, 532–534.
- ↑ The problem is this procedure no later than when he writes on page 466, Schmitt had the "discrepancy" between an intent on the freedom of the individual, law state 'and related to a specific order, just state' revealed '(emphasis added Koenen) and does not mention that Schmitt, for his part, puts “constitutional state” in quotation marks - that is, denies that the liberal state is a true constitutional state, and rather equates the latter with the orderly “just state” (in Schmitt without quotation marks).
- ↑ Cf. p. 461: the “'civil constitutional state', which in the Weimar Republic was already an integral part of the image of the enemy that connects Schmitt and Forsthoff”, p. 210, fn. 22: “The root of his criticism of the 'civil constitutional state'” ; see. also p. 209: "whose [the separation of powers] expression in the 'civil constitutional state' he had criticized for years".
- ↑ See p. 536: "Article [...] in which the Catholic constitutional law teacher [Schmitt] explicitly addressed the 'opposition between the rule of law and the Christian state' as well as the historically substantiated 'concrete, anti-Christian sense of the word' constitutional state '" ".
- ↑ One of the accompanying footnotes (p. 668, footnote 67) also contains a factual error. It says: "Instead of the planned 'reply' from Krauss, Schmitt [...] writes an afterword [on the disputation on the rule of law , Hanseatische Verlagsanstalt, Hamburg 1935]." The publication rather contains both a "reply" by Krauss (p. 70 –83) as well as an “afterword” by Schmitt (pp. 84–88).
- ^ Jörg Schmidt: Otto Koellreutter 1883–1972. His life, his work, his time . Lang, Frankfurt am Main et al. 1995, p. 125, see also p. 124.
- ^ Carl Hermann Ule: Carl Schmitt, the rule of law and the administrative jurisdiction . In: Verwaltungs-Archiv 1990, pp. 1–17, here p. 8.
- ↑ Cf. p. 10: “Despite certain reservations, he [Schmitt] sticks to the concept of the constitutional state, but only in the version of the German constitutional state Adolf Hitler, which has been cleared of all general validity. More skeptical about such a reinterpretation of the concept of the rule of law is his position in the article 'What does the dispute about the rule of law mean?'
- ↑ Wolfgang Schuller: The rule of law with Carl Schmitt . The break of time in the game. In: Rudolf Morsey, Helmut Quaritsch, Heinrich Siedentopf (eds.): State, politics, administration in Europe . Commemorative writing for Roman Schnur. Duncker & Humblot, Berlin 1997, pp. 117-133, especially pp. 118-120.
- ↑ Wolfgang Schuller: The rule of law with Carl Schmitt . The break of time in the game. In: Rudolf Morsey, Helmut Quaritsch, Heinrich Siedentopf (eds.): State, politics, administration in Europe . Commemorative writing for Roman Schnur. Duncker & Humblot, Berlin 1997, pp. 122-126. Cf. on the post-war period: Ingeborg Maus: Bürgerliche Rechtsstheorie und Faschismus. On the social function and current effect of Carl Schmitt's theory . 2nd edition expanded to include a new foreword. Fink, Munich 1980, urn : nbn: de: bvb: 12-bsb00040752-7 , p. 117 f., Fn. 157 ( digitized version ).
- ↑ Wolfgang Schuller: The rule of law with Carl Schmitt . The break of time in the game. In: Rudolf Morsey, Helmut Quaritsch, Heinrich Siedentopf (eds.): State, politics, administration in Europe. Commemorative writing for Roman Schnur . Duncker & Humblot, Berlin 1997, pp. 117–133, here p. 127: “With regard to the constitutional state, which should no longer be bourgeois, that [the desired“ substance ”] was the social or material one, with Carl but Schmitt its variant, the national socialist rule of law. "(emphasis added).
- ↑ The German constitutional state: National “community” instead of legal binding of the state authority - the example of “tax CD” .
- ^ Ulrich Schellenberg: The criticism of the rule of law . From a liberal to a national and national socialist constitutional state. In: Ernst-Wolfgang Böckenförde (ed.): Constitutional law and constitutional law in the Third Reich (= law - justice - contemporary history , vol. 41). Müller, Heidelberg 1985, pp. 71-88, here p. 79.
- ↑ Cf. on this from the source literature in addition to those already mentioned in footnote 103: on the one hand Carl Schmitt: Staatsgestruge und collapse of the second Reich . The citizen's victory over the soldier. Hanseatischer Verlagsanstalt, Hamburg 1934 and on the other hand Arnold Köttgen: considerations on the new building of the German administration . In: Reichsverwaltungsblatt 1935, pp. 65–72, here p. 67, left column.
- ↑ Because of the postulated unity of people and leader, the so-called state or sovereign absolutism was rejected as "un-Germanic" (see Andrea Nunweiler: The image of the German legal past and its updating in the "Third Reich" . Nomos, Baden-Baden 1996 , P. 163 above, 190 (after footnote 335), 286 f.)
- ^ Carl Schmitt: National Socialism and the Rule of Law . In: Juristische Wochenschrift , 1934, pp. 713–718, here p. 713 (= Deutsche Verwaltung 1934, pp. 35–42, here p. 35).
- ^ Heinrich Lange: From the rule of law to the rule of law . Hanseatische Verlagsanstalt, Hamburg 1934, pp. 21, 22, 37 (emphasis added).
- ↑ Carl Schmitt: The leader protects the law . In: Deutsche Juristen-Zeitung 1934, pp. 945–950. See also Heinrich Lange: From the rule of law to the rule of law. Hanseatische Verlagsanstalt, Hamburg 1934, pp. 38 and 42, fn. 29: "The Führer did not create new law, he implemented old, applicable law."
- ^ Günther Krauss , Otto von Schweinichen : Disputation on the rule of law . Hanseatische Verlagsanstalt, Hamburg 1935, pp. 33–32, 64 (emphasis added).
- ↑ On this problem area, see Detlef Georgia Schulze: An interim balance in seven theses . In: ders., Sabine Berghahn , Frieder Otto Wolf (eds.): Rule of law instead of revolution, juridification instead of democracy? Transdisciplinary analyzes on the German and Spanish path to modernity (= StaR P. New analyzes on the state, law and politics . Series A, Volume 2). Westfälisches Dampfboot, Münster 2010, pp. 877–884, esp. Pp. 878–880 with a - not further elaborated - distinction between “monarchical, presidential, governing state and constitutional material rule of law” (880).
- ^ Ingeborg Maus: Development and functional change in the theory of the bourgeois constitutional state . In: dies .: Legal Theory and Political Theory in Industrial Capitalism . Fink, Munich 1986, urn : nbn: de: bvb: 12-bsb00040886-9 , pp. 11–82, especially pp. 40–44, pp. 180, 195–197 ( digitized version ). This: Social and legal aspects of the "Conservative Revolution" . In: ibid, pp. 141–171 (especially on Carl Schmitt: pp. 154–161).
- ^ Christian Hilger: Rule of Law Concepts in the Third Reich . A structural analysis (contributions to the legal history of the 20th century, vol. 39). Mohr Siebeck, Tübingen 2003, p. 5.
- ^ Carl Hermann Ule: Carl Schmitt, the rule of law and the administrative jurisdiction . In: Verwaltungs-Archiv 1990, pp. 1–17, here: p. 14.
- ^ Christian Hilger: Rule of Law Concepts in the Third Reich. A structural analysis . Mohr Siebeck, Tübingen 2003, p. 10.
- ↑ Dirk van Laak : Conversations in the security of silence. Carl Schmitt in the early intellectual history of the Federal Republic . 2nd edition, Akademie Verlag, Berlin 2002, p. 94, fn. 119 ( digitized version ). ( Ules dissertation was accepted in Jena, where Koellreutter taught.)
- ^ Andreas Koenen: The case of Carl Schmitt. His rise to the position of “Crown Lawyer of the Third Reich” . Scientific book company, Darmstadt 1995, p. 528. Dirk van Laak: Conversations in the security of silence . Carl Schmitt in the early intellectual history of the Federal Republic. 2nd Edition. Akademie Verlag, Berlin 2002, p. 94, fn. 119 .
- ↑ On p. 130 in footnote 58 of his article on the rule of law cited here, Schuller refers to his article: Imposed Blindness . Carl Schmitt as a contemporary phenomenon. In: Mut , No. 337, May 1997, pp. 62-67.
- ↑ Wolfgang Schuller: The rule of law with Carl Schmitt . The break of time in the game. In: Rudolf Morsey, Helmut Quaritsch, Heinrich Siedentopf (eds.): State, politics, administration in Europe. Commemorative writing for Roman Schnur . Duncker & Humblot, Berlin 1997, pp. 117–133, here p. 130: “Of course this is not the place to speculate again about why Carl Schmitt was so involved in this extreme way; in any case, however, opportunism and career considerations fall far too short when one considers that he was only one of many important intellectuals in Europe and the world who subscribed to the totalitarianisms of the 20th century. The tone is 'significant', because that is what makes the tragedy. [...]. To harbor contempt for them is not appropriate [...]. "
- ↑ The edition Gollancz: London 1942 seems to differ from the Oxford University Press edition only in a smaller font. The sections “National Socialist Law and Terror” and “Is Germany a State?” Can be found in the Gollancz edition on pp. 359–374 and 382–384.