Let Liberals be Liberals

Published date01 November 1998
Date01 November 1998
DOIhttp://doi.org/10.1111/1468-2230.00185
REVIEW ARTICLE
Let Liberals be Liberals
John C. P. Goldberg*
David Dyzenhaus,Legality and Legitimacy: Carl Schmitt, Hans Kelsen and
Hermann Heller in Weimar, Oxford: Clarendon Press, 1997, xiv + 283 pp, hb £40.00.
David Dyzenhaus’s Legality and Legitimacy is a learned and important contribution
to the body of English-language scholarship that has sought to draw philosophical
lessons from the experience of Weimar. Much to his credit, Dyzenhaus does not
simply use examples from this period to illustrate a preconceived argument. Rather,
he attempts to derive that argument from a genuine scholarly engagement with the
political events of the period, and with the work of prominent German theorists who
wrote about those events at the time they occurred. The result is a work of
extraordinary ambition. Indeed, Legality and Legitimacy undertakes no fewer than
three distinct projects, each of which might warrant a book unto itself.
Dyzenhaus’s first project is to provide a brief account of an important moment in
the collapse of the Weimar Republic. Specifically, Dyzenhaus offers an inter-
pretation of the 1932 decision of the German State Court in Prussia vReich.
1
In July
of that year, Reich Chancellor Franz von Papen arranged for President Hindenburg to
issue an executive decree that ousted the duly-elected Prussian state government – at
the time, the last political foothold of the Social Democrats – and designated Papen
as National Commissioner for Prussia. Citing violent street battles between Nazis and
Communists within Prussia, Papen and Hindenburg claimed that the federal take-
over of the State was authorised under Article 48 of the Weimar Constitution,
2
The Modern Law Review Limited 1998 (MLR 61:6, November). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 899
* School of Law, Vanderbilt University.
Thanks for helpful comments to William Booth, Mark Brandon, Rebecca Brown, Joshua Dienstag, Julie
Faber, Bob Rasmussen, Tony Sebok, Don Welch and Nick Zeppos. Remaining errors are mine.
1 The State Court (Staatsgerichtshof) was a specialised federal court created by the Weimar
Constitution to resolve questions of constitutional law.
2 As translated by Dyzenhaus (p 33), the first, second, third and fifth paragraphs of Article 48 provided
in part:
If a Land does not fulfil the duties imposed on it by the Constitution ... or by a law of the Reich,
the President can ensure that these duties are performed with the help of armed force.
If the public safety and order of the German Reich is seriously disturbed or endangered, the
President may take the measures necessary for the restoration of public safety and order, and may
intervene if necessary with the help of armed force. To this end he may temporarily revoke in
whole or in part the fundamental rights contained in [certain Articles of the Constitution].
The President must inform the Reichstag immediately of all measures taken in terms of
paragraphs 1 and 2. On demand of the Reichstag, the measures are revoked. .. .
A law of the Reichstag will determine details [of appropriate action in terms of the Article.]
In theory, the President’s power under Article 48 was limited by: the requirement of Articles 50 and
54 that the Chancellor counter-sign any such decree; the terms of paragraph three, which empowered
Parliament to suspend any decree ‘on demand’, and; the ‘law’ described in paragraph five (pp 19–20
and 33). However, none of these checks had any practical force with respect to the Prussian decree
because Chancellor Papen was allied with Hindenburg, Hindenburg had exercised his prerogative to
dissolve Parliament (pp 20 and 24) and the Reichstag never passed a law specifying the details of how
the President was to proceed under Article 48 (p 33, n 80).
which, among other things, empowered the President to take measures necessary to
quell serious civil unrest.3In their suit to nullify the decree, Prussian officials
countered that the violence in Prussia did not constitute the threat to public safety
required by Article 48, particularly since Reich officials had helped precipitate the
violence by lifting a prior ban on Nazi paramilitary organisations. They also argued
that the measures contemplated by the decree exceeded the authority conferred to
the President by Article 48. The State Court’s decision in some sense split the
difference. It invalidated the decree insofar as it claimed simply to dismantle the
federal structure of German government, but upheld the power of the President to
displace temporarily the State government for the purposes of governing Prussia’s
internal affairs and restoring order.4On Dyzenhaus’s reading, the Court’s
concession to Prussia amounted to an empty gesture (p 36).5Thus, he views the
decision as an important political failure, one that conferred the veneer of legality
on what was in fact a cynical plot by Reich officials to use Article 48 to destroy the
last organised political resistance to their campaign to dismantle Weimar
democracy (p 28).6
Dyzenhaus’s second project is to reconstruct and interpret the remarkable debate
over the constitutional issues presented in Prussia vReich that arose among three
of Weimar’s leading legal scholars – Schmitt, Kelsen and Heller. Both as a scholar
and as a lawyer who helped argue the Reich’s case, Schmitt maintained that Article
48’s grant of emergency powers demonstrated that the Weimar Constitution had
designated the president as the German sovereign and thus had conferred on
Hindenburg unfettered discretion to rule by decree. Although he did not share
Schmitt’s enthusiasm for presidential supremacy, Kelsen reluctantly agreed with
Schmitt that, as enacted, the Constitution in fact conferred on the president
unreviewable discretion to take measures he deemed appropriate to deal with
civil unrest. Meanwhile, Heller, as a scholar and as a lawyer for Prussia, argued
that the decree had to be unconstitutional because to conclude otherwise would
be to interpret one provision of the Constitution (Article 48) so as to allow the
President to undermine the Constitution’s overall purpose of maintaining a
government accountable to the people through the institutions of parliamentary
democracy.
In successive chapters, Dyzenhaus seeks to provide original interpretations of
Schmitt’s, Kelsen’s and Heller’s work by explaining how their respective
accounts of the Weimar Constitution each derived from a deeper theory of
politics. Thus, Dyzenhaus finds that Schmitt’s view of Article 48 as the
centerpiece of the Weimar Constitution followed from his romantic, existentialist
conception of politics as the means by which a nation under the direction of a
3 Papen and Hindenburg claimed authority for the Prussian decree under both paragraphs one and two
of Article 48. Before partially upholding the decree under paragraph two, the State Court rejected
their contention that the Prussian government had failed to fulfil its constitutional duties as required
for Presidential action under paragraph one (p 35).
4 Specifically, the Court struck the decree insofar as it purported to deprive Prussian officials of their
authority to represent Prussia in dealings with other state governments and in the Reichsrat (Federal
Council), which had limited constitutional powers to revise legislation (p 20).
5 I will not pursue whether Dyzenhaus rightly interprets the Court’s decision. One source that he cites
maintains that the decision was widely perceived as a rebuke to Papen and Hindenburg, and that it
caused them significant political damage. Arnold Brecht, Prelude to Silence (New York: Oxford
University Press, 1944) 71.
6 Dyzenhaus concedes that the Court’s ruling was probably not a ‘but for’ cause of Weimar’s demise
and Hitler’s ascension, both of which were well underway by the time it was issued (p 32). He
nonetheless argues that the case is significant because the rise of Nazism has to be understood as an
incremental sequence of avoidable political failures, including the Court’s (pp 130–131).
The Modern Law Review [Vol. 61
900 The Modern Law Review Limited 1998

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