On 23 March 1964, the presiding judge at the Auschwitz trials, Hans Hofmeyer, admonished a witness who had called the defendants ‘murderers’ in his testimony. ‘In German law’, the judge explained, ‘you can only call a man a murderer once he has been convicted in a court of justice.’Footnote 1
In his first lecture on ‘Hitler and the Germans’ given in the same year at Munich University, the political theorist Eric Voegelin cited this incident to his students.Footnote 2 Voegelin sought to alert his audience to the utter absurdity of the judge's claim. This supposed the existence of an intact overarching legality, which spanned the two decades separating the perpetration of the crimes at Auschwitz from their prosecution by the West German state. Voegelin pointed out that such a legal order did not and could not exist. The ‘specific murderous situation in Auschwitz’, he stated, could not be prosecuted as part of ‘proper court proceedings’. These murders were not murders in the ‘normal sense of criminal law’.Footnote 3 Treating them as such obscured their true heinousness. They were murders committed by the state and within the legal framework of the German Reich. The rule of law (the Rechtsstaat), Voegelin followed on, ‘has disappeared’ when murder ‘is carried out on a mass scale and precisely by those who should have punished murder – in other words, when the government, in this case the Reich chancellor, his ministers, the administrative authorities subordinate to him, his generals, etc. all co-operate in organized mass murder’.Footnote 4 Voegelin's criticism of the Rechtsstaat in post-war Germany was not that Nazi criminals were being tried in court. It was that through the reinstitution of a normal criminal justice system, the systemic failure and collaboration of the German legal profession was being erased. The murders committed by the Nazi regime were being made into individual murders by individual Nazis.Footnote 5 In front of his students, Voegelin contested an easy consensus of German post-war politics: that the tradition of the Rechtsstaat could restore the integrity of the German people as a political community. As early as 1946, the constitutional theorist Gustav Radbruch had proposed just that. In his famous and highly influential article on ‘Gesetzliches Unrecht und übergesetzliches Recht’ (Legal injustice and supra-legal justice), he had argued that whilst democracy was ‘a commendable good’, the Rechtsstaat was ‘like daily bread, like water to drink, like air to breathe’. It was ‘the best part of democracy’, Radbruch contended, that it was ‘so uniquely suited to secure the Rechtsstaat’.Footnote 6 In Radbruch's argument the Rechtsstaat had become the ultimate aim of politics; democracy itself served merely as a means to its realization.
This article aims to shed light on the concept of the Rechtsstaat, which has existed in German political and legal thought since the early nineteenth century. It argues from the assumption that rather than simply an equivalent to the English-language ‘rule of law’, the idea of the Rechtsstaat implies a specific understanding of the relationship of the state, law, and legitimacy in the German political tradition.Footnote 7 The concept of the Rechtsstaat has been used to legitimate widely varying political projects. This article identifies the key components of the political project of post-war West Germany and the role of the Rechtsstaat within it. It shows how the idea and tradition of the Rechtsstaat served to institutionalize a specific conception of the law and of the state's legitimacy more broadly. This was a conception based on an objective order of values enforced by judges and thus removed from the political squalor of democratic decision-making processes. The article recovers the intellectual and political provenance of this conception of the state and contextualizes it within legal and political theoretical debates from the early Federal Republic and the Weimar era. It argues that contrary to the understanding of the Rechtsstaat’s most fervent proponents after 1945 and many of its interpreters until this day, West Germany's specific model of judicialized constitutionalism was developed not simply as a reaction and certainly not as a solution to the political and legal problems that Nazism had brought to the fore. Rather, this article contends, the West German Rechtsstaat with its ‘eternal’ basic rights and the strong role of the constitutional court was developed already in the Weimar years, as a response to the first German republic's parliamentary democracy.
Much has been made of the judicialization of politics in the aftermath of the Second World War. Current political and legal theory juxtaposes such processes with the principle of popular sovereignty and with democratic politics more generally. Such literatures seek to expose judicialization as a political process – one in which power is taken away from democratic agents and institutions.Footnote 8 Ran Hirschl, the foremost critic of what he takes to be a global process of judicialization of politics, describes it as a ‘hegemony-preserving manoeuvre’ by ‘risk-averse agents’ who seek to insulate themselves from the ‘vicissitudes of democratic politics’.Footnote 9 These critical arguments are not new. In fact, they were present from the beginning of one such process in the 1920s. German lawyers and political theorists such as Franz Neumann, Hermann Heller, Eric Voegelin, and Wolfgang Abendroth saw the dangers of judicial rule and pointed to the political agendas bound up with it. They showed up the decisive political implications of different conceptualizations and juridifications of basic rights and criticized the haphazard expansion of judicial review in the Weimar era. They criticized comfortable narratives about the failure of the Weimar Republic and exposed the Rechtsstaat’s ineffectiveness as a remedy to the legal and moral abyss created by Nazism.Footnote 10 In this sense, this article not only traces the institutionalization of a specific model of constitutionalism. It also tracks the defeat of its critics. It shows the immense ideological power which the concept of the Rechtsstaat has developed throughout the complex histories of German democracy and illustrates why its fundamentally undemocratic understanding of law and political legitimacy remains so attractive today.
In German political discourse, the critical history of the Rechtsstaat is largely forgotten. It is a sign of the enormous success of this specific constitutional model that ‘democratic Rechtsstaat’ functions today as a blanket term for any legitimate state. By analysing the distinct meaning and political implications of the German Rechtsstaat as a specific proposition about the relationship between basic rights, the judiciary, and democracy, this article connects the intellectual history of the Rechtsstaat to the theoretical arguments put forward by the critical study of constitutionalism. The Rechtsstaat can indeed be seen as the undoing of German democracy. Yet its history also shows us how it came to be the making of it.
I
Gustav Radbruch's conceptualization of the Rechtsstaat epitomized the new understanding of the relationship of politics and law in post-war West Germany.Footnote 11 To Radbruch, a social democrat and Weimar era minister of justice, the state needed to be legitimized from values outside of the positive legal order. ‘Legal positivism’ had rendered the German legal profession ‘defenceless against laws of arbitrary or criminal nature’ and had thereby inoculated the Germans against extra-legal notions of justice. Positivism had prevented German jurists from asking the question: if something had been legal, how could it have been unjust?Footnote 12
This question has more pertinence in German than in English. Uniquely amongst the European languages, the German word for law (Recht) is intimately connected with the word for justice (Gerechtigkeit). As Isabella Aguirre Siemer has shown, none of the other major European languages knows this affinity. In French, just as in Spanish, Italian, and English, the Latin distinction of law (lex) and justice (justicia) is maintained. From the perspective of everyday language, this has decisive consequences for the German concept of Recht and of the Rechtsstaat.Footnote 13 The law appears as a necessary function of a system of justice. Conversely, the legal state has to justify itself as a state of justice. To a German-speaker, therefore, the question: ‘How can something be legal and unjust’ sounds therefore more like: ‘How can the law be illegal?’ or ‘How can justice be unjust?’
Radbruch's 1946 essay used this linguistic affinity to demonstrate the deep need for morally grounded legal and constitutional frameworks for any future German state. Legal positivism as it had been taught in the Weimar period, he argued, could never suffice to justify the validity (Geltung) of law. As a system, it had to derive the validity of laws ultimately from the power to enact them. Power, however, could never be a source of true legitimacy. Such legitimacy could only be ‘based on a value which is inherent to that law’.Footnote 14 For, he stated, one ‘cannot define the law, even positive law, in any other way than as an order or a statute with the distinct purpose of serving justice’.Footnote 15
While the legitimacy and true validity of law was the guiding concern of Radbruch's argument, democratic legitimation was absent from his deliberations. He recognized the law's utility to the people as a possible source for its legitimation but sought to show that utility properly understood could itself only be a function of justice. The good of the people would ultimately only be served by laws which ‘strove for justice’, he claimed.Footnote 16 The fact, however, that laws could express the will of the people and thereby gain a specific legitimacy independent of their moral value was not even considered. The law appeared in ‘Gesetzliches Unrecht’ as entirely independent from the means of its creation. Indeed, severing the connection between the political production of laws and the law itself appears as the fundamental purpose of Radbruch's conception of the law.
II
The plausibility of Radbruch's conception of legal positivism was further advanced by the Allied powers’ understanding of Nazism, and their interpretation of the role German lawyers had played in maintaining the regime. US occupying forces in particular placed enormous emphasis on the re-education of German lawyers and the reorientation of legal education.Footnote 17 They fully recognized the pivotal role of lawyers in German society and sought ‘to mould the thinking of this profession towards the tenets of a democratic system of justice’.Footnote 18
Already in 1948, German law students were given stipends from the American military government. In 1950 the legal division of the Interdivisional Reorientation Committee was working on fourteen different programmes for the reorientation of German law. Mostly, such programmes provided opportunities for German lawyers and civil servants to visit courts and law faculties in the United States and take part in lecture series organized in Germany and the US. As Edith Raim has shown, the Americans deemed particularly exchange programmes essential for the success of a new democratic Germany. In their view, German legal education lacked a real consideration for the purpose of law. ‘The problem involves a legal system which has not, heretofore, been completely aware of its obligation to serve the people’, stated one military government memorandum in 1949.Footnote 19 German law was seen as overly technical and wholly disconnected from the republican principles that were integral to the Americans’ own conception of law and justice.Footnote 20 With their educational programmes, the Americans hoped to allow the Germans a glimpse into such an alternative understanding of the law. The military government expressed its hope that ‘the Germans who have participated in this cultural exchange programme’ would ‘acquire new and stimulating ideas in the States and that these ideals will become a living force among the legal profession as a whole’.Footnote 21 By broadening ‘the background of the students’ and ‘awakening in them an understanding of vital ideological and social issues’, the Americans hoped to avert the danger of another generation of German ‘technicians of the law’ with ‘no appreciation for the moral and social significance of the legal problems with which they [were] to deal’.Footnote 22
From this memorandum, it seems that American officials did not seriously consider the possibility that German lawyers, judges, and officials in executing Nazi law might have simply followed a different set of principles. Rather, in the understanding of the American military government, it had been the Germans’ adherence to the state, the unthinking reverence towards a cold legal order, which had allowed for the crimes of Nazism to occur. The émigré political and constitutional theorist Karl Loewenstein who advised the American military government on legal questions concurred with such an interpretation. He, too, emphasized the importance of educating a new generation of lawyers. It was ‘unlikely, and perhaps humanely impossible’, he remarked, to expect ‘the present generation of judges and prosecutors who [had] applied Nazis law with unflinching loyalty because it was state-commanded law’ to ‘undergo a deep intellectual conversion’ and to ‘retreat from their positivist position’.Footnote 23
However different their understanding of legal issues might have been in detail, both German lawyers and the American occupying forces believed that the key to establishing a functioning and legitimate German state was its reorientation towards supra-positive values and away from legal positivism. In seeing German lawyers as obedient servants of a perverted state machine, both groups followed a rather simplistic reading of Nazism as an extension of German state worship.Footnote 24 Already in the 1940s, the émigré political theorists Franz Neumann and Ernst Fraenkel had contested this understanding of Nazism.Footnote 25 Nevertheless, both in America and Germany such an account of National Socialism as a continuation of German – often Prussian – traditions of state idolatry remained hegemonic.Footnote 26 For German lawyers, judges, and officials, this interpretation was a convenient one. It meant that their participation in the Nazi regime was not understood to be a crime of conviction but rather one of compliance. It was equally for the occupying powers in Germany. For them, it meant that they could defend working with a deeply discredited elite within the German population without whose support a reliable new state could hardly be built.
III
The anti-positivism of the immediate post-war period, then, was by no means a merely philosophical position. As a comprehensive interpretation of the relationship of law and the state, it constituted the legitimatory core of the Basic Law of 1949.Footnote 27 West Germany's new constitutional text established a distinct understanding of the Rechtsstaat as a state of justice. On the face of it, this merely revived a nineteenth-century liberal conception of the Rechtsstaat as a protected space for the individual in the absence of political self-rule. Within a democracy, however, such an easy opposition of the private citizen with the state order was rather problematic; indeed, this tension had already been evident in the Weimar Republic. The Rechtsstaat as conceived in the Basic Law stood therefore in a delicate tension with the basic principle of democracy as the primary source of West Germany's legitimacy.Footnote 28
As Michael Stolleis has pointed out, the re-establishment of the Rechtsstaat constituted the ‘main concern’ of both the West German public as well as the community of legal experts in the parliamentary council.Footnote 29 The law professor Friedrich Klein called the development of the Rechtstaat the ‘principal basic right’ of the new political order.Footnote 30 In the deliberations of the parliamentary council, too, the Rechtsstaat appeared as the main legitimating principle of the newly forming state. The later president of the Federal Republic, Theodor Heuss, argued that ‘the legitimacy of the state was clearly expressed in the concept of the Rechtsstaat’.Footnote 31 He, therefore, deemed a specific reference to parliamentary democracy at the beginning of the Basic Law unnecessary. A Christian Democratic Union delegate, Helene Weber, similarly declared that the ‘Rechtsstaat had to be placed in the foreground’ of the new order. The people, she summed up curtly, ‘can be brought in later’.Footnote 32 In signing the Grundgesetz, the parliamentary council gave the Rechtsstaat, for the first time, the explicit status of a constitutional principle. Article 28 of the new Basic Law declared the new West German state to be a ‘republican, democratic, and social Rechtsstaat’.Footnote 33
With the Grundgesetz, the law gained a new significance not as a means of conveying decisions made within the democratic process, but as an independent source of legitimacy in its own right. This is most clearly visible in the new status basic rights assumed in the text of the Basic Law. In contrast to the Weimar Constitution and in close adherence to the arguments brought forward by Radbruch and others, the new Federal Republic's Rechtsstaat was built on the existence of basic human rights as pre-political rights. The first article of the Weimar Constitution had declared the German Reich a republic and established the principle of popular sovereignty.Footnote 34 In a second part of the text, the Weimar Constitution had then listed the citizens’ basic rights and duties. The Grundgesetz, on the contrary, relegated the actual formal structure of the state to the second part of the text. It thereby put basic rights rhetorically and legally before the actual existence of the Federal Republic as a political entity. Its first article stated: ‘Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.’Footnote 35 Basic rights thereby achieved a legal and at the same time supra-legal position within the law much in the way as the advocates of anti-positivism had envisioned it. Basic rights were before the law and its inception. This was further stressed by the fact that Article 1 of the Grundgesetz did not put in place a specific right. Rather, with human dignity it established a principle of justice from which all other rights could be derived. Legally, the extra-legal status of basic rights was secured through a so-called ‘eternity clause’ of the Grundgesetz, which forbade any changes to the basic rights portion of the provisional constitution.Footnote 36 In this way, basic human – not civic – rights truly ‘governed the Grundgesetz’, as Carlo Schmid, the principal architect of the Basic Law, had postulated it.Footnote 37
In the Weimar Constitution, Schmid contended in a speech before the parliamentary council, basic rights had been a ‘mere appendage’, with no vital function for the state. This had been part of the Weimar Constitution's weakness as a constitutional arrangement.Footnote 38 The Grundgesetz, Schmid argued, would need to position basic human rights at its heart and establish them as ‘immediately valid federal law’ without further need for legislative procedures. As such, every German should be given the ability to sue directly for his or her rights. This entirely new form of citizen–state interaction would later be established as the so-called ‘constitutional complaint’ (Verfassungsbeschwerde) in German law. It gave both the courts and basic rights a new and decisive political weight within the institutions of the new republic.Footnote 39
The conception and legal framing of basic rights were the significant new element of the Federal Republic's Basic Law. As legal entities, basic rights created an entirely new space for the judiciary in the political order. In his 1952 essay on the ‘conception of man in the Basic Law’, Günter Dürig, Carlo Schmid's successor in his university post and the first commentator on the Basic Law, stated that with the establishment of human dignity as well as the positive right to ‘free personal development’ guaranteed in the Grundgesetz, the Basic Law was merely ‘superficially returning to the old liberal Rechtsstaat’. Instead, the Grundgesetz had established an order of values based on a Christian understanding of the human person. As such it represented a ‘rejection of the central theme of liberalism’.Footnote 40
IV
The introduction of this Rechtsstaat with its order of values was a challenge to the German judicial system, which was now charged with actively creating such an order through its jurisdiction. The decisive cornerstone for the establishment of the new Rechtsstaat was therefore the introduction of a constitutional court. As Peter Caldwell has noted, this introduction ‘marked a significant institutional break from the political and judicial traditions of the German Empire and the Weimar Republic’.Footnote 41 It is true that the Weimar Constitution knew no constitutional court in the modern sense. However, in 1921, the Staatsgerichtshof für das Deutsche Reich had been founded to adjudicate contentions between different organs of the state, and in the late Weimar years, the Oberstes Reichsgericht (supreme court) had gained significant powers for judicial review against the legislature and the cabinet governments.Footnote 42 The Basic Law established the Bundesverfassungsgericht (federal constitutional court) next to the Oberste Bundesgericht (supreme federal court) mainly to arbitrate ‘contentions between the different organs of federal government’ and ‘differences of opinion about the rights and duties of the federal government and the Länder governments’.Footnote 43 As Matthias Jestaedt has shown, however, the Bundesverfassungsgericht was quickly able to claim a position far beyond these competencies.Footnote 44 In a 1952 memorandum to the government, parliament, and the Bundesrat (federal chamber) the constitutional court declared itself to be the ‘guardian of the constitution’, reclaiming a rather contentious formula from the Weimar period.Footnote 45 The court described itself as a ‘constitutional organ’ in its own right invested with the ‘highest authority’.Footnote 46 Therefore, the court argued, it could not ‘be subservient to any other constitutional organ’.Footnote 47 By putting itself on the same footing as the other organs of the constitution, i.e. the president, parliament, the federal chamber, and the government, the court created a new position for itself vis à vis the elected representatives of the German people.
With the so-called Lüth judgement of 1958, the constitutional court further expanded its own reach within the political order of the young West German state. The case concerned revolved around a contention between two German citizens, the film director Veit Harlan represented by his production firm and a high-ranking civil servant in the government of the city-state of Hamburg, Erich Lüth. Harlan had been a famous filmmaker and propagandist in the Nazi period most notable for his Jud Süß (1940). In post-war Germany, Harlan was able to continue his career. Lüth, however, publicly demanded for his films to be boycotted. Harlan's production firm sued Lüth who insisted that his utterances were covered by the constitutionally guaranteed right to free speech. After several lower courts had ruled in favour of the production firm, Lüth filed a so-called constitutional complaint at the Bundesverfassungsgericht, an entirely new form of interaction between private citizens and the judiciary, which had been established only in 1951.Footnote 48 Unlike the other courts, the constitutional court upheld Lüth's right to free speech. The court had been expected to refuse to interfere with a civil law suit but it used the case to establish further its role as a constitutional organ. In the opinion of the court, the Bundesverfassungsgericht declared that the Grundgesetz did ‘not want to be a value neutral order’ but that the constitution had ‘establishe[d] an objective order of values with its section on basic rights’. The court stressed this objective order formed the basis for the ‘increased strength of the validity of basic rights’ in the Bonn constitution. More importantly, however, the court established the legal significance of this objective order for the whole of the German political system. The value system, it declared, had to ‘be in effect as a fundamental constitutional decision for all branches of law; legislature, administration and judiciary derive from it principles and impulses’. Therefore, no law ‘could be in contradiction’ to it and ‘every law’ had to be ‘interpreted in its spirit’.Footnote 49 With this, the Bundesverfassungsgericht established itself not merely as an arbiter between the citizens and the state but as the true guardian of basic rights wherever they might be infringed upon. This so-called ‘mediated third party effect of fundamental rights’ fully established basic rights as the primary political and legal principle of the West German state.Footnote 50
With the help of basic rights and the force of the historical arguments put forward to defend their new legal and political status, the Bonn Republic significantly expanded the reach of the judicial branch within the political order. Where the Rechtsstaat in a traditional liberal understanding had been merely a citizen's defence against the over-reach of the state, the new conception of Rechtsstaatlichkeit made the assertion and implementation of civic and human rights the positive obligation of the state. The post-war generation of judges rapidly assumed for themselves the mantel of the guardians of that new Germany.
V
Despite the new constitution's wide acceptance in West Germany and beyond, careful observers of its specific political arrangement saw the new central role of the judiciary and the legitimizing role of the Rechtsstaat concept more sceptically. In his lecture series Hitler and the Germans, the political theorist and returned émigré Eric Voegelin mounted a detailed analysis of what he saw as the muddled political ideas connected with the Rechtsstaat idea in post-war Germany.Footnote 51 Two points were central to his critique: the internal inconsistency of the Rechtsstaat principle as conceived in the Grundgesetz and the deep rift between the moral aspirations of the post-war legal order and its inability actually to establish a just society. For Voegelin, the idea of a higher constitutional order as a check on all further law was derived ultimately from the monarchical ideal of a hierarchy of legal norms. This principle, however, could not be brought into conformity either with the concept of popular sovereignty or with a general principle of the separation of powers.Footnote 52 Article 20 of the Basic Law, which attempted to establish both principles, was, Voegelin argued, ‘characteristic’ for the Grundgesetz. Its ‘authors had obviously been incapable of comprehending the issue’, he stated laconically.Footnote 53 For Voegelin, the Rechtsstaat concept was ‘dispensable’ because it contained, even within the narrow confines of constitutional law, too many contradictory impulses, notions, and precepts.Footnote 54
Voegelin also chastised the ideological rebirth of the Rechtsstaat as an emblem for the new West German state's justice and legitimacy. Voegelin argued that the idea of constitutionally guaranteed rights relied on a superstitious belief in the power of the law. The law could merely open, he contended, a space for a possibility of certain rights. The right to inheritance, for example, remained positively meaningless without the existence of a rich aunt, he quipped.Footnote 55 Voegelin's rather philosophical critique of the Basic Law and the norms connected with the Rechtsstaat principle pointed to a larger, fundamental problem in constitutional law particularly, in the context of German post-war society. Could the right institutions fix society? Or would a fundamentally flawed social order always over-ride even the best constitutional design? Voegelin believed that no constitutional order and no degree of judicial oversight could repair a fundamentally dysfunctional society. The Rechtsstaat, with all its legal and moral paraphernalia, served only to conceal this fundamental moral truth.Footnote 56
Franz Neumann, too, reflected on the Bundesrepublik’s search for constitutional fixes and, specifically, its tendency to promote the judiciary over the legislature. In his 1950 essay ‘Deutsche Demokratie’, Neumann wrote about the Germans’ propensity to safeguard themselves against democracy through the means of jurisdiction and the provision of fixed basic rights. Neumann spoke of the ‘constitutional fetishism’ of the Germans.Footnote 57 The ‘hypertrophy of the courts’, he explained, was aimed at ‘demonstrating the complete rejection of totalitarian methods’.Footnote 58 With it, the Germans hoped to ‘protect themselves against acts of despotism’.Footnote 59 Neumann pointed out, however, that such an attempt was ‘inadequate, in Germany perhaps even worthless’. ‘From history’, he warned, ‘we have little reason to judge the German judicial system optimistically.’Footnote 60
In order to understand Neumann's scepticism toward the new German constitutional order, it is necessary to go back to earlier debates about the nature of basic rights and judicial review from the Weimar period.Footnote 61 As has been clearly visible from the rhetoric employed by Radbruch, Schmid, Dürig, and others, post-war constitutional lawyers were keen to show that the new Rechtstaat was a complete abnegation of a failed German legal tradition, which had done much to make the German state defenceless against the onslaught of Nazism. This rhetorical figure, whilst being highly effective, bore little connection with the political realities of the Weimar period. It has often been stressed that the renaissance of natural law in the post-war period operated under false assumptions since it can be easily shown that Nazi state was by no means operating on a positivist understanding of the law.Footnote 62 Indeed, the Nazi regime had itself deployed strongly anti-positivist polemics precisely against the positivism of the Weimar Constitution.Footnote 63 As Bernd Rüthers's 1989 study Entartetes Recht demonstrated, the cold letter of the law was consistently confronted with higher ethical norms, which were in turn allowed to undermine positive legal norms. Not only the will of the Führer but also the so-called gesundes Volksempfinden (the wholesome understanding of the people) was given immediate legal authority under Nazi law.Footnote 64 Even the term Rechtsstaat itself was appropriated by some Nazi jurists in the immediate aftermath of the ‘national socialist revolution’.Footnote 65 Already in his 1928 Verfassungslehre Carl Schmitt had introduced the polemical distinction between a Gesetzesstaat (state of laws) and the true Rechtsstaat. Footnote 66 In 1933, Gustav Adolf Walz argued for the adoption of the term ‘national Rechtsstaat’.Footnote 67 Ernst Forsthoff, Ernst Rudolf Huber, and Otto Koellreuter each made their own arguments against the legal positivism of the bygone era and its ‘Gesetzesstaat’.Footnote 68
Less recognized, however, is the fact that the supposedly hegemonic positivism and its formalist interpretation of the Rechtsstaat had been under constant attack from conservative legal theorists already during the Weimar period. Their critiques effectively undermined the Weimar state's legitimacy and led to significant changes in the state's legal structure. Both the interpretation of basic rights and the idea of an abstract order of values were key components of these criticisms. In unearthing and re-evaluating these concepts, post-Second World War constitutional theorists established a continuity between the conservative thought of the Weimar period and the legitimation of the Bonn Republic.
In his Verfassungslehre (constitutional theory), Carl Schmitt had insisted that basic rights could within the framework of a Rechtsstaat only be conceptualized as rights ‘prior to and above the state’.Footnote 69 As such they were not bestowed upon the citizens by the state but merely ‘recognized and protected’ by it. Rights, according to Schmitt, were themselves not legal entities but ‘spheres of liberty’. For Schmitt, freedom of religion, personal freedom, the right to property, free speech as well as, crucially, the right to resistance did not exist according to and as part of a specific legal order. They ‘denoted the principally uncontrollable latitude of individual freedom’ as forms of ‘unorganizable justice’.Footnote 70 Where there was a state claiming to be a Rechtsstaat, these rights were in existence and operable.Footnote 71
It was precisely this reading of basic rights that Neumann had opposed in his 1930 text on the Soziale Bedeutung der Grundrechte in der Verfassung (the social significance of basic rights in the constitution). For Neumann, the strength of the Weimar Constitution was that it did precisely not recognize basic rights, it granted them. This, Neumann had argued, constituted a significant improvement from a liberal understanding of basic rights as supra-legal or pre-political. He argued that if rights were to be maintained as inviolable rights, the character of the Weimar Republic would merely be that of liberal state, built to ensure ‘the interests of the bourgeoisie’, their rights to property and freedom of contract.Footnote 72 As positive rights, however, they would give the state the flexibility needed for a significant and legal redistribution of wealth.
Neumann's understanding of basic rights was supported not only by the formal structure of the Weimar Constitution, in which basic rights appeared at the end and therefore as a product of the political order erected by the constitution. It was also consistent with the concrete phrasing of specific basic rights in the text. Carl Schmitt had proposed that the principle of Rechtsstaatlichkeit meant that the Weimar state had to accept and protect a conventional list of basic rights even where such rights were not explicitly granted in the constitution. Neumann pointed out that such an understanding created an unproductive tension within the constitutional order. Not only did the Weimar Constitution not recognize, acknowledge or mention a right to resistance. It also did not accept its citizens’ inviolable right to property. Article 153 stated explicitly that ‘property was warranted by the constitution’ and that its ‘content and barriers would be regulated by specific laws’.Footnote 73 The same article specified that ‘expropriations’ could take place ‘on a legal basis’ if they were judged to be beneficial to the common good. An abstract right to property as proposed by Carl Schmitt, which contradicted the actual text of the constitution, meant leaving it to individual judges to interpret which was in fact the Weimar Constitution: the written text or an abstract order of principles consistent with a particular interpretation of the Rechtsstaat. Neumann argued that an understanding of the law, which sought to establish basic rights as pre-legal, as Carl Schmitt had laid them out in his Verfassungslehre, made the advancement of the constitution impossible and ‘compelled those who wanted a socialist order to revolution’.Footnote 74 While Neumann's position remained consistent, Schmitt reversed his. After the war, he renounced his earlier interpretations of basic rights and the relationship of legality and legitimacy. In a diatribe against the Lüth judgement, Schmitt spoke of a ‘tyranny of values’ being established in West Germany.Footnote 75
VI
The discovery of basic rights was, however, not the only feature of conservative legal thinking which found its way into the Basic Law. Part and parcel of the post-war German Rechtsstaat’s effectiveness as an institution was the immense expansion of judicial review in the early years of the Federal Republic. This process too had its roots in the Weimar era.Footnote 76 With reference to a higher value order, the immutability of the constitution, and the fixed meaning of basic rights, the dynamism of the political process and legislative action could be contained and even reversed. The introduction of judicial review, which had heretofore only been known in the United States, was a key new instrument for the implementation of this new political order.Footnote 77
In his Soziale Bedeutung der Grundrechte, Franz Neumann had criticized both the new interpretation of basic rights and the ‘expansion of judicial review’ in the Weimar state. The growing importance of the courts in the Weimar system, in his view, had ensured that ‘legislative action by parliament’ as well as ‘actions taken by the cabinet’ were increasingly controlled by the jurisdiction ‘with recourse to basic rights’.Footnote 78 This de-legitimation of the democratic process was not only a concern for Neumann. The constitutional theorist Hermann Heller, too, cautioned in his passionate defence of a democratic Rechtsstaat against the ‘shift of power from the legislature to the judges’.Footnote 79 In his 1930 Rechtsstaat oder Diktatur?, Heller spoke about the ‘tremendous gain in power’ upon which the judges had ‘seized’.Footnote 80 Just like in the contention about the true meaning of basic rights, the social question played a decisive role in the legal struggle that ultimately led to the introduction of this controversial legal instrument in 1925. After years in which the question of judicial review had been politically and legally unresolved, the debate came to a head as part of a political economic debate in the aftermath of the hyperinflation of 1923. After having stabilized the German monetary system through the introduction of a new currency, the Rentenmark, the German political system had to decide: would the existing debts be inflated away, or would the debt be converted into Rentenmark? The history of this case is complex, and its significance for the development of German constitutionalism is not yet fully recognized.Footnote 81 Here, it is enough to say that by 1924 two positions had emerged. On one side stood the German government which, as the issuer of state bonds, had a decisive interest in allowing debts to be inflated away. On the other emerged the association of judges at the Reichsgericht, arguing both for the necessity to appreciate debts in the new currency, and for its own right to uphold this opinion against the legal actions of parliament or the government. In its position paper to the German chancellor Wilhelm Marx, the association at the Reichgericht defended the jurisdiction on the case and warned that its position must not be ‘toppled by the dictum of the legislature’.Footnote 82 The judges at the court had based their position on the ‘principle of good faith and trust’, which stood ‘outside of any single law’ and ‘outside of any positive-legal norm’ but was, nevertheless, according to the court, the essence ‘of our legal existence’.Footnote 83 Accepting the position that ‘one mark equals one mark’, i.e. that there would be no adjustment of debts in the new currency, would lead to ‘an injustice of the highest order’. Such an injustice, the judges admonished, would be ‘unbearable in a Rechtsstaat’.Footnote 84
In his 1924 essay on the occasion of the Reichsgericht's position paper, the law professor James Goldschmidt proclaimed the court's ‘enunciation’ a ‘decisive event in the development of jurisdiction’.Footnote 85 The judges’ ‘claim to liberty’ against the ‘dictum of the legislator’, Goldschmidt argued, was by no means a ‘convulsion in the organization of the entire state’ as the minister of justice, Erich Emminger, had called it.Footnote 86 It was a necessary assertion against the impending ‘absolutism of the majority’.Footnote 87 The Rechtsstaat had, according to Goldschmidt, so far only developed defences against monarchical absolutism. Now, Goldschmidt demanded, the law had to safeguard against the absolutism of a ‘popular state’ through the ‘strict control of its organs’Footnote 88 – for, as Goldschmidt asserted quoting Heinrich Triepel, ‘the law’ was ‘not sacred, only justice (das Recht)’ was ‘sacred’. Footnote 89 The law would always be subservient to justice. Therefore, the legislature had to be made subservient to jurisdiction, for only the judge ‘serves justice alone’.Footnote 90
With this warning to the government, the Reichsgericht’s judges had asserted their right to adjudicate legislation as the supreme authority in the Weimar state. In 1925, the Reichsgericht officially attributed to itself the right to judicial review. In its ruling on the question of whether judges were allowed to adjudicate the law with reference to its constitutionality, a power hitherto only given to the president in a limited way, the court argued that since the constitution itself contained no laws to the contrary, judicial review ‘had to be accepted’.Footnote 91 With this ‘ruling without an argument’,Footnote 92 as Bernd J. Hartmann put it, the Reichsgericht advanced Heinrich Triepel's monarchist position to the ruling opinion within German jurisdiction. In his Rechtsstaat oder Diktatur?, Hermann Heller characterized this decision as ‘with certainty false from a juridical standpoint’.Footnote 93 He saw the advancement of judicial review as an attempt by the middle classes, from whose ranks most judges hailed, to safeguard themselves against the ‘transformation of a liberal Rechtsstaat into a social Rechtsstaat through democratic legislation’.Footnote 94 It was this middle-class obstructionism that Neumann recognized in the Basic Law and its ennobling of the Rechtsstaat.
VII
In curtailing the rights of the legislature and asserting its unique authority over the true meaning of the law, Weimar era lawyers had sought to mobilize the figure of the German Rechtsstaat specifically against the bourgeoning social state. Specifically, the Rechtsstaat had been used to establish an immutable right to property which the Weimar Constitution did not guarantee as well as the ability of courts to strike down any legislation which infringed on such rights. This logic was again employed in the Federal Republic. In 1954, Ernst Forsthoff, author of the 1938 book Der totale Staat (The total state) and leading theorist of German administrative law, argued for the supremacy of the Rechtsstaat as a constitutional principle. The social Rechtsstaat, as Hermann Heller had envisioned it and as the Basic Law had established it, was, Forsthoff claimed, a contradictio in adiecto.Footnote 95 In his Verfassungsprobleme des Sozialstaats (Constitutional problems of the social state), Forsthoff recovered a liberal understanding of the Rechtsstaat familiar from Schmitt's Verfassungslehre. The Rechtsstaat implied a specific understanding of the role of the state vis à vis the citizenry. The state, in this reading, should merely safeguard the citizens’ freedom through non-interference. The social state, however, was bound to infringe on precisely this personal freedom through its conflation of ‘rule and social function’.Footnote 96 On a constitutional level, Forsthoff argued, the principles of the Rechtsstaat and the social state could, therefore, never be made to be compatible. The Basic Law needed ‘to be understood principally as a constitution of the Rechtsstaat’.Footnote 97
Forsthoff had used these arguments already in 1952 in an advisory opinion for the German employers’ association. In a dispute about significant changes in German labour law, several unions had organized strikes to oppose the new legislation. The German employers’ association as well as the German government deemed such ‘political strikes’, as they termed it, unconstitutional.Footnote 98 Forsthoff's sparring partner in this debate, the legal consultant for the German trade union confederation, was the political theorist Wolfgang Abendroth. The exchange between the two scholars is often dubbed the ‘Abendroth–Forsthoff controversy’.Footnote 99 Abendroth, however, was excluded from contributing to the annual conference of German constitutional experts on Begriff und Wesen des sozialen Rechtsstaates (concept and character of the social Rechtsstaat).Footnote 100 His highly influential article on the social and democratic Rechtsstaat appeared instead in the Festschrift for the Social Democratic politician Ludwig Bergstraesser.Footnote 101 In his article, Abendroth argued that the Basic Law's principles needed to be understood in concert and should not be set against each other. The social state would enable democracy and a social and democratic Rechtsstaat would bring forth a new kind of legal order. Indeed, by connecting the three principles, Abendroth argued, the Bundesrepublik had established the state's active duty to enact a transformation of the economic and social order in a legally and democratically sustainable way. As long as this amalgamation of principles did not occur, all three would be equally ‘undermined by an emerging social crisis’.Footnote 102 This project, of course, implied a reconceptualization of the concept of democracy along the lines of Ernst Fraenkel's neo-pluralism. Contrary to Neumann, who had like Schmitt identified democracy strongly with popular sovereignty, Fraenkel's and Abendroth's vision was that of layered, plural democracy where a strong civil society, as represented for example in the unions, could legitimately oppose a democratically elected government.
Politically, the German unions failed in their attempt to put pressure on the government to change their proposals in 1952. The legal position first outlined by Forsthoff prevailed in the courts as well as in parliament. This coalition between the courts and the government represented in parliament would, of course, have been alien to the Weimar era and therefore also to its political theorists. By allowing the government to claim the principle of democracy for itself and defame the unions as undemocratic, the case put the emancipatory potential of basic rights in the Bundesrepublik to the test. As the Lüth case had shown, individual basic rights could indeed be strengthened through the expansion of the Rechtsstaat’s institutional power. Social and political rights, which challenged the liberal separation of state and society, however, were much less likely to be endowed with the same importance for the functioning and legitimation of the state.
Abendroth's theorization of the democratic and social Rechtsstaat brought a new dynamism to the debate about the constitution – but only at the price of accepting the Rechtsstaat with its institutional and ideological centrality for the Federal Republic. Within his conception, the constitutional principles of the Basic Law could be understood as an aspiration for an ever-developing political order rather than a constraint on the democratic evolution of society. Unlike Franz Neumann or Eric Voegelin, who had criticized the constitutional rigidity of the Bonn Republic, Abendroth employed the language of the Basic Law as the basis for the reform of the Bonn Republic's constitutional order and political culture.
These three critics of post-war German constitutionalism, Neumann, Voegelin, and Abendroth, each in their own way exemplify the immense power of the Rechtsstaat as a political rhetoric and an institution. Where Voegelin's and Neumann's incisive arguments fell on deaf ears, Abendroth, like Hermann Heller before him, had to accept the concept of the Rechtsstaat in his attempt to redescribe it. As the dispute over union rights shows, this severely underestimated the institutional power that the Rechtsstaat had already attained in the years since Heller's Rechtsstaat oder Diktatur. Abendroth's attempt at a critical reinvention of the Rechtsstaat stands thus at the beginning of its integration into a framework of political theory which had so long sought to expose the Rechtsstaat’s regressive political tendencies. It was Abendroth's habilitation supervisee, Jürgen Habermas, who would later claim that there was a normatively necessary ‘cohesion of the Rechtsstaat and democracy’.Footnote 103
VIII
The decisive shifts in the understanding of the German Rechtsstaat, which are so strongly associated with the renewal of German democracy, occurred not after the Second World War but already in the 1920s. The key arguments for the introduction of pre-legal basic rights, the introduction of a constitutional court and judicial review, as well as provisions for the limited alterability of the constitution, all stem from Weimar debates and contentions between the judiciary and the legislative. In these contentions, the judiciary systematically and successfully sought to expand its own reach to the detriment of the latter. As political arguments, the conceptualizations of the Rechtsstaat from the Weimar period show a decisive mistrust towards the democratic process of government. Indeed, they exhibit an impatience with the fluctuation and constant change of government under popular sovereignty. It was no accident that all of these arguments arose in close connection to the social question, which had been so contentious in the Weimar era.
In unearthing these specific elements of Rechtsstaatlichkeit and putting them front and centre in the Basic Law, constitutional lawyers of the second German Republic created the judicially bounded democracy, which Weimar theorists such as Hans Kelsen, Hermann Heller, and Franz Neumann had sought to avoid. In as much as the Bonn Republic's constitutional thought sought to distance itself both from the Weimar period as well as Nazism, its understanding of law showed strong continuities with precisely those legal arguments from the Weimar period, which had been effectively used to undermine the state's legitimacy and its ability to expand the provision of welfare. The ‘new constitutional settlement’ with its ‘new constitutional ethos’, as Jan-Werner Müller put it, was new, at least from a legal perspective, only in that it gave final constitutional form to legal positions, which had already proved highly successful in the Weimar period.Footnote 104
The continuities with the Weimar period in German constitutional thought show the limited influence which German émigré political theorists had on the immediate development of the post-war German state. Franz Neumann, Karl Loewenstein, Eric Voegelin, Wolfgang Abendroth, and Ernst Fraenkel were relegated to the sidelines as the German legal profession re-established both itself and the German Rechtsstaat.Footnote 105 For Eric Voegelin, it was clear that Germany's specific Rechtsstaat tradition had propelled it towards National Socialism.Footnote 106 It was absurd to expect the Rechtsstaat of all things to right the wrongs of Nazism post-1945. It was precisely the Rechtsstaat which had consolidated a system of cold legalism, absolving both citizens and politicians from accepting real responsibility. This legalism made the Nazi past manageable but obfuscated the real scandal of Nazi atrocities: that they had been lawful, too. In Franz Neumann's ‘Deutsche Demokratie’, the Bonn Republic's constitutional arrangement appeared as a return to an older order of bourgeois liberal government, which the Weimar Constitution had already superseded. His critique of Germany's constitutional fetishism pointed to the inconsistencies in the German political self-understanding after 1949. While the Federal Republic was proclaiming itself a ‘social Rechtsstaat’ it was recycling precisely those instruments of legal authority that had been used to curtail demands for social justice in the Weimar Republic.
Neumann's clear critique of a reinterpretation of constitutionally enshrined rights in the context of the Weimar Constitution also clarified that it was not basic rights in and of themselves which posed a threat to democratic rule.Footnote 107 It was the institutional combination of positive rights, envisioned as supra-positive rights, enforced not by the legislature but through the new powers of a constitutional court, which consolidated the new model of the Rechtsstaat after 1945. As the Lüth case shows, this new judicial encirclement could well lend itself to an active assertion of citizens’ rights. However, it achieved this by by-passing parliamentary decision-making and restricting its reach. With the constitutional complaint, the Federal Republic created a new bond between the individual citizen and the judges in Karlsruhe, which would only expand over its now fifty-year history. In the end, the scepticism towards democratic rule which had been so powerful in the parliamentary council of 1948/9 created a political order which sidetracked democratic legitimacy and the institutional power of parliament in favour of a communal adherence to shared values and individual claims safeguarded by judicial authority.
In his 1929 essay, Carl Schmitt had called the Reichspräsident the ‘guardian’ of the Weimar Constitution.Footnote 108 Citing the drafter of that constitution, Hugo Preuß, Schmitt argued that it was the president's role to ‘counterbalance parliament’ and represent the ‘continuity and permanency of the state’.Footnote 109 The history of the Weimar Republic showed clearly that a president could not fulfil such a complex and demanding task. Instead, the continuity and permanency of the post-war West German state was ensured by an ideologically potent combination of basic rights and a judicially bounded democracy.
