CHAPTER TWENTY-TWO
IN 1883, as Bismarck was completing the transition from Prussian state-nation to German nation-state, Friedrich Nietzsche wrote:
Somewhere there are still peoples and herds, but not where we live, my brothers: here there are states. State? What is that? Well then, open your ears to me, for now I shall speak to you about the death of peoples. State is the name of the coldest of all cold monsters. Coldly it tells lies too; and this lie crawls out of its mouth: “I, the state, am the people.” This is a lie!… This sign I give you: every people speaks its language of good and evil, which the neighbor does not understand. It has invented its own language of customs and rights. But the state tells lies in all the languages of good and evil; and whatever it says, it lies—and whatever it has it has stolen.1
Here are heard many of the complaints against the imperial state-nation: that it acts in solidarity with other state-nations, rather than representing the nation; that it claims to be the nation when in fact it is acting to perpetuate and serve its own interests; that it is indifferent to—cold, shares no sentiment with—the people who alone are the source of its authority and wealth.
It is a common error to say that the imperial states defied nationalism. On the contrary, these states exalted nationalism and claimed it for themselves. Imperialism, in the words of one of its greatest historians, William Langer, was “a projection of nationalism beyond the boundaries of Europe.”2 It was the co-opting of nationalism by the state-nation that so infuriated Nietzsche: the state-nation had subordinated the nation to itself. “Ask not what your country can do for you, but what you can do for your country” might well have been spoken by the leader of a state-nation.
By contrast, the nation-state replies, “Go ahead: ask! Let's see what we can do for you!”* For this reason, the nation-state provided social security, free public mass education, universal suffrage, and redistributive taxation. The nation-state sought its legitimacy in the betterment of the welfare of its people. This, however, brought forth a shadow for every variation of its constitutional form. The shadow of the nation-state is its ideology: by setting the standards by which well-being is judged, ideology explains how the State is to better the welfare of the nation. Whereas the state-nation had studiedly contrived to legitimate itself through the creation of a certifying club of other state-nations, admission to which stamped the state as the representative of the nation in whose name it ruled, the nation-state could not resort to this method. It tried this tactic, as we shall see. At Versailles in 1919, and still later at San Francisco in 1945, the great powers tried to reproduce the authorizing society that would legitimate their claim to rule, as their predecessors had done at Vienna. But this could not succeed, because three different kinds of such states presented themselves as best at serving their peoples. Until the debate among fascism, communism, and parliamentarianism could be settled, the nation-states could not form a legitimating society, because it was the legitimacy of their competitors that each ideology attacked.
A number of historical conclusions follow from this: first, that the war that began in 1914 must properly be seen as having continued until 1990, at which time a legitimate constitutional form of the State achieved a consensus among the great powers; second, that the constitutional mandate sought by the parties at Versailles was therefore premature, and could only come when the ideological conflict among the great powers was settled; and third, that the so-called failure of Versailles was to a very great degree preordained, and perhaps could not ultimately have been avoided. In Book I, we took up the first of these conclusions. Here we shall take up the second and third.
Although the Versailles agreement might have been a constitution for the society of states in the way that the peace agreements at Westphalia and Vienna may be said to be, it can be quickly shown that this was not quite the case.†
The Treaty of Versailles and the various other treaties that together form the Peace of Paris of 1919 did not constitute a settlement consensually agreed to by the great powers who fought the war. The treaty terms of Versailles were imposed upon Germany, while hostile military action—a blockade that starved thousands to death during the pendency of the Peace Conference—was still underway. A single state's constitution can of course be imposed by war, but a constitution for the society of states requires consensus because it depends upon the vanquished state playing by the rules once the war is over. Moreover, the United States refused to ratify the treaty that emerged from the Peace Conference, and the Soviet Union was excluded altogether. No constitutive agreement can emerge when so many great powers are absent or alienated.
To be sure, there were many similarities between the Paris Peace Conference and the Congress of Vienna. Seventy plenipotentiaries from thirty-two countries came to Paris. There were 1,000 delegates. New states—Finland, Estonia, Latvia, Lithuania, Poland, Czechoslovakia, Yugoslavia—were created or legitimated, and the conference assumed the legal authority to abrogate pre-existing treaties, most important, the Russo-German treaty of Brest-Litovsk. Like the Vienna Congress, all the impor-tant decisions were made by a directorate of powers, which then presented the outcome to the general convocation. The Council of Four took the decisions, in secret, that determined the content of the peace treaty, just as the Committee of Four had attempted to determine the outcome of the deliberations at Vienna a century before. The draft peace treaty was presented to the Conference on May 6, 1919, just one day before it was to go to the German delegates.
The critical difference was that the states themselves were different: they were becoming nation-states. As Osiander insightfully points out, in “order to enhance their domestic legitimacy, increasingly governments gave up their solidarity with one another on which the Vienna system had been based.”3 This development can be attributed to the different basis of legitimacy claimed by these two different state archetypes.
The nation-state pursued a new bargain with the nation: in exchange for the release of enormous national energy, the State harnessed itself to the nation, promising more than simply its own aggrandizement and glory; it promised actual improvement in the material well-being of its citizens. Because the lot of all the citizens of a state can seldom be simultaneously improved, and because most governmental decisions produce losers as well as winners, such a task inevitably brought divisive pressures to bear within the State. In the parliamentary democracies, if they were lucky, this meant a restless changing of governments as the discontented accumulated with each decision; for the fascist states it encouraged an effort to divide the domestic polity into citizens and scapegoats, and to find foreign countries that could be frankly exploited to benefit the citizenry; for the socialist states, it invited a relentless program of class warfare, exalting one part of the citizenry at the expense of the other. None of these ideological forms, however, gained in prestige or sentiment by identification with the society of states as a whole or with the state-nation heritage of Vienna. The leaders of nation-states distanced themselves from the society of states because they simply had no choice. War itself was blamed on the society of state-nations.4 Speaking of the war that had just ended, Woodrow Wilson said: “It was a war determined upon as wars used to be determined upon in the old, unhappy days when peoples were nowhere consulted by their rulers and wars were provoked and waged in the interest of dynasties or little groups of ambitious men who were accustomed to use their fellowmen as pawns and tools.”5
Wilson insisted that there be “no odor of the Vienna settlement” at Paris.6 Insofar as the nation-state tolerated a supranational presence, it was that of all peoples, not merely governments. As Wilson put it, “there is a great voice of humanity… in the world… which he who cannot hear is deaf… We are not obeying the mandate of parties or of politics. We are obeying the mandate of humanity.”*
Such a view of the role of peoples, of course, is not incompatible with a constitution. Indeed it is the basis of most nation-state constitutions, including that of the United States. And it is true that the U.S. constitution provided the basis for the structure and ideology of the Versailles Treaty and the League of Nations. But before these provisions could be adopted as a constitution for the society of states a consensus was necessary on the ideological valence of the nation-state, which among other matters determines just how the public's mandate is to be ascertained. The United States was lucky to have achieved a domestic consensus on this matter early on, having fought a terrible civil war to determine its terms for the nation-state; this consensus was one the other great powers of the twentieth century did not share.
It is commonly held that the principal blunder of the peacemakers at Paris was their harsh treatment of defeated Germany. The Allies rejected the example of the victors at Vienna, which had embraced the new French government on the grounds that France had replaced the Napoleonic adversary and was now again a legitimate member of the society of states. Instead, the victors at Versailles rejected the proposal of Colonel House that the German delegates take part in the Conference, as provided in the U.S.-German exchange of notes on November 11, 1918, and refused to permit even oral discussions with the German representatives prior to presenting them with a draft treaty that the Germans were coerced into accepting by threats of further war and by the ongoing Allied blockade that had brought famine to Germany.
This situation was largely due to the unusual way in which the war had ended. Germany had agreed to an armistice on the basis of the famous Fourteen Points, a paper presented by Wilson that was in important ways inconsistent with the war aims of the other allies.7 This paper was given a gloss to hold the Allies together, but this interpretation was not communicated to the Germans.8 In fact, the Allies differed among themselves on major issues and were therefore unable to present Germany with comprehensive terms prior to the convocation of the Paris Conference.9 Thus the Conference itself became the forum for hashing out terms for Germany among the contentious Allies, terms that were exaggerated in order to allow for concessions that, owing to public expectations inflated by these very exaggerations, could scarcely in fact be made. The Germans were not invited to participate because no decision was ever taken by the Allies whether the Paris Conference was a meeting to draft preliminary terms that, once negotiated with the Germans, would give way to a Congress of all parties, or a meeting to agree on a final settlement. In the event the “preliminary” agreement was so precarious among the Allies themselves that the Germans were not permitted to discuss its terms, and it metamorphosed into a final settlement driven by Allied fear that their domestic publics had lost patience.
The German response to the treaty with which they were confronted was one of bitter dejection. In the “Observations of the German Delegation on the Conditions of Peace,” the German government expressed dismay that Germany's new constitutional arrangements—which had replaced the Kaiserreich with a parliamentary republic—had not been taken into account by the Allies. Furthermore, “[n]o recognition of [Wilson's] principles can be traced in the peace document laid before us,” they wrote.
The Allied reply to this paper was brutal:
The Allied and Associated Powers believe that they will be false to those who have given their all to save the freedom of the world if they consent to treat this war on any other basis than as a crime against humanity… Justice is what the German delegation asks for and… justice is what Germany shall have… Somebody must suffer for the consequences of the war. Is it to be Germany, or only the people she has wronged?
Article 231 of the Treaty included a “war-guilt” clause by which Germany took responsibility for the war. This too was a break with earlier general settlements: Westphalia, Utrecht, and Vienna had all included amnesty clauses, deliberately omitting any distinction between victors and vanquished.10 The Versailles Treaty instead provided for the extradition and trial of the kaiser.
Of course the Allies' charges were perfectly right: Germany had caused the war, Bethmann Hollweg's celebrated remark (“How did it all happen?”) to the contrary notwithstanding. Yet the failure to discriminate between the regime that had prosecuted the war and the Weimar Republic that now ruled in Germany seems an obvious and gratuitous mistake. Had European statesmen already forgotten the counsel of Castlereagh that punitive reparations would drive the former enemy's successor regime either into disrepute with its own people or into fresh aggressions? Wilson himself had said, on January 22, 1917:
Victory would mean peace forced upon the loser, a victor's terms imposed upon the vanquished. It would be accepted in humiliation, under duress, at an intolerable sacrifice, and would leave a sting, a resentment, a bitter memory upon which terms of peace would rest, not permanently, but only as upon a quicksand.11
It seems clear that the victors had lost sight of the fact that they were framing a constitution for the society of states and behaved instead as though they were drafting a bill to be paid. Only Wilson saw the work of the Conference as constitutional in nature, and he contented himself with providing the procedural provisions for such a constitution, neglecting the political consensus that had to be its foundation. By eliminating Germany from this consensus, and having excluded Russia at the outset, any consti-tutional program, such as the kind that came out of Vienna, or Westphalia, or Utrecht or Augsburg, was doomed. But was it doomed anyway?
We have observed that the end of an epochal war provides the opportunity for creating “constitutions in the usual sense of that word because they… [establish] diplomatic and legal rules for international relations and [determine] the nature of future conflicts, not only among the former belligerents, but of other states in the state system as well.”12 Yet, with a hostile Bolshevik regime in Russia, and an undiscredited, popular fascist movement in Germany, the epochal war that began in 1914 was far from over. It was an obvious mistake—one that was clear to virtually all the contemporaries—not to try to shore up the Weimar Republic by a generous peace and to enlist its participation in the drafting of an international constitution under which it would have to live and whose support it would depend upon. Instead, Germany was not even permitted to join the League of Nations at its founding. But too little was settled by 1919 for us to conclude that the epochal war of this century had ended, and if there was no end to the war, there can have been no beginning to the constitutional peace that was to follow it.
As a result, the Allied leaders were sharply divided between pressing for a strategic advantage over the Germans—bearing in mind always the potential for a war with Russia as well—or ratifying a conciliatory peace that would, perforce, leave Germany in a formidable military position. This accounts for the curious schizophrenia of the peace agreement, which neither reconciled Germany nor crushed her strategic power. It also accounts for the odd combination of self-determination for some nationalities and a ruthless, pawnlike treatment of others that would have bemused even the most cynical peacemakers at Vienna. Two new states, Poland and Czechoslovakia, were created on the grounds that the Polish and the Czech nations were each entitled to a nation-state, but both these new states included a substantial number of ethnic Germans who, presumably, were no less entitled to their own state. Indeed it was perfectly plain that these new countries were purposely being created with an endowment that would make them enemies to the states from which these lands were taken, Germany and Russia. That was the victors' point: to create new allies for a future war, and to weaken the adversaries they might face in such a war. Germany and Austria were prevented from amalgamating with the Sudetenland, Alsace-Lorraine, and each other, for the treaty forbade them to unify, despite the fact that, of all the peoples of Central Europe, the Germans had the clearest claim to a single state on the grounds of national self-determination.
Georges Clemenceau is the dark figure who is blamed for injecting a venomous revanchism into the peace agreement, abetted by David Lloyd George, largely on the grounds of campaign promises made to British voters that the Germans would pay Britain's war debt (and perhaps more), and only slightly diverted by a hopelessly naïve and ineffectual Woodrow Wilson. This was Keynes's famous portrait of the world's leaders at any rate, and it has been adopted generally by historians and politicians (it is quoted in Chapter 14).
There was, of course, merit in Keynes's analysis that the reparations burden placed on Germany could not possibly have been fully liquidated, and the peace agreement generally was a punitive one. Perhaps when World War II came, as Keynes* predicted it would, he felt that this analysis had been vindicated. However that may be, the attitude that Germany had been treated unjustly, widespread among intellectuals and journalists of the period, had much to do with the feckless appeasement of the interwar years after the Nazis came to power, and the refusal by the Allies to enforce the terms of Versailles when these were contemptuously violated by Germany. The Versailles terms gave Hitler a rhetorical stick with which to beat the Weimar Republic: either the republic's politicians could attempt to comply with the agreement or negotiate a reduction in its terms—in either case they would be groveling supplicants to their oppressors and traitors to the German people—or they could rebel. But if they rebelled, they sacrificed the one link that gave parliamentary governance legitimacy in Germany, namely its connection to the other parliamentary states. As the German delegates had petitioned the Peace Conference in 1919: “In view of the inter-connection which exists today between conditions throughout the world no people can, however, stand alone in its development but each one, if it is to be an efficient and trustworthy member of the family of nations, needs the support of its neighbors…”13 And in any case, if the German people wished to rebel against the society of states, they would not turn to the politicians of Weimar to lead such a revolution.
But was Keynes right to imply that a more generous peace would have lasted? Was Clemenceau so obviously wrong? For all of his ridicule of Wilson, it is Keynes who sounds disturbingly naive in imagining that a reduction in reparations debts—which in the event were, in fact, dramatically reduced, as Lloyd George and others fully expected—would reconcile the German public to its defeat. It is Keynes, not Clemenceau, who treated the German and British states as if they were fungible, and who ignored the ideological strife going on with deadly earnestness in Germany and on the continent. It can surely be argued that a more generous settlement and a refusal to take territory from Germany or prevent its national consolidation would have merely made a stronger Third Reich. This point was pressed by Clemenceau in this exchange with Wilson.
WILSON: I trust that, in principle, you are agreed with Mr. Lloyd George as to the moderation which must be shown toward Germany. We do not want to destroy Germany and we could not do so: our greatest mistake would be to furnish her with powerful reasons for seeking revenge at some future time…. We must not give our enemies even an impression of injustice.
CLEMENCEAU: My principles are the same as yours; I am considering only their application… [W]hat we regard as just here in this room will not necessarily be accepted as such by the Germans… Their idea of justice, I assure you, is not ours… Shortly before he died Napoleon said, “Nothing permanent is founded on force.” I am not so sure… You wish to do justice to the Germans. Do not believe that they will ever forgive us; they will only seek the chance for revenge.14
I am inclined to believe that German war resurgence had less to do with the eternal German spirit, as Clemenceau claimed to believe, than with the unsettled constitution of the German nation-state, the legitimacy of which was very much contested. It was not simply revenge that drove German politics, but the strife that resulted from three closely matched ideological candidates for control of the nation-state. Until this competition was settled, Germany could not have been a competent partner to a new constitution for the society of states. This can be seen clearly in the example of Italy, which neither suffered the loser's dismemberment nor manifested an especially warlike spirit.
Indeed Italy had been a member of the victorious alliance. Its premier, Orlando, was included in the Council of Four. On a visit to Italy in January 1919, Wilson had given his support to Italy's claim to the strategic Brenner Pass. This meant an extension of Italian rule to a large ethnically German population and was in direct contradiction to Point Nine of the Fourteen Points, which provided that a “readjustment of the frontiers of Italy should be effected along clearly recognizable lines of nationality.” When the Peace Conference later convened and Italy pressed for more territorial concessions at the expense of Yugoslavia, Wilson balked and effectively checked Italian claims. The consequence was the dramatic abandonment of the Conference by Orlando, a wounded refusal to sign the Treaty, and a persistent claim for aggrandizement that the Italian fascists could exploit. It was the weakness of Orlando's domestic position and the strength of Italian fascism that allowed such a claim to become a passionate and effective means of tormenting the Italian parliamentary government in Rome. So long as the new nation-state did not have a sure ground of legitimacy, the Peace Conference could only offer opportunities for further political struggle. It could not end the domestic political conflict. Yet without ending such conflicts, the Conference itself could not produce a consensual constitution: there were not sufficient legitimate regimes that would ratify it, whatever its content.
What was wanted was a way to hedge against the strategic assets that might end up in the hands of a hostile fascist or communist state, and at the same time to shore up the fragile parliamentary regimes who would be accused by their domestic opponents of selling out the nation's strategic interests. House and Wilson thought this might be done by getting states to participate in a system of legal adjustments of political disputes: this process would tend to legitimate the governments of the participating states with their domestic publics, while defusing strategic crises. I very much doubt such reliance upon legal systems would have been feasible. That reliance depends upon an idea about law, and its power, that was far from a natural assumption for the states of the world where the basic legitimacy of the regime was a contested notion. In such environments, the political resolution provided by the operation of law does not reinforce legitimacy but only puts it in play. Law is dragged into the most intense political disputes and “exposed” as a mere façade for political action.
The settlement that finally emerged at Versailles was on the scale of, but did not share the transforming finality of, earlier constitutional settlements. The state-nation form had already been abandoned in Russia, Germany, Austria, Hungary, and Turkey, and even before the war in Portugal and China. Norway had seceded from Sweden, without the benefit of a blessing by the Conference, just as Ireland would break away four years later from Britain. Moreover, wars arising from this transition from state-nation to nation-state outlasted the “peace” of Versailles: the Greco-Turkish war began in 1920 and lingered until 1923; the Russian wars continued until 1922, involving Britain, the United States, Japan, and France in various parts of Russia; 15 the Russo-Polish War broke out in 1920 and lasted until the next year, supplanted in part by the Polish-Lithuanian War that continued until 1923.
There was widespread disillusion with the Treaty. The American Secretary of State, Lansing, noted that “the impression made of it is one of disappointment, of regret, and of depression.”16 Harold Nicolson recorded in his letters, “The more I read [the Treaty draft] the sicker it makes me… There is not a single person among the younger people here who is not unhappy and disappointed at the terms.”17 This disappointment, though profound, cannot simply be attributed to the failure to live up to the magnanimous peace promised by Wilson's Fourteen Points. Rather it reflected, especially among the younger persons present, the conviction that another war would soon come. The Congress model, faithfully reproduced at Versailles and sought to be institutionalized in a League of Nations, became globalized with the 1919 Conference. The society of states had expanded beyond Europe, and its peculiar pattern of war and constitution making had also spread. What was missing—and what would remain missing after World War II, whose victors did not even attempt a general peace treaty—was the political, constitutional basis within each of the great powers that would make a general constitution for their society possible.
To make this point, let us examine the constitutional situation of the crucial parliamentary nation-state of Germany and, following this, focus the discussion on its legal interpreters of Versailles to make the constitutional conflicts of the Weimar Republic more vivid and comprehensible.
WEIMAR
At the congresses both of Westphalia in 1648 and of Vienna in 1815, the great powers had approved a constitution for Germany. At the Peace Conference of Paris in 1919, however, this was not done, and indeed might have been thought improper in some quarters because the Versailles powers' commitment to self-determination, a principle of the nation-state, also committed them to letting each state choose its own constitution. Nevertheless, the constitution that governed postwar Germany was very much in accord with Allied political views.
In the waning days of World War I, revolution had broken out in Germany. A new government was created virtually simultaneously with the deliberations at Versailles. The day the kaiser abdicated and fled, the chancellorship was given to the Social Democrat Friedrich Ebert; the German delegates to the Paris Conference had already left Berlin by this time. After the suppression of a violent left-wing revolt, elections for a constituent assembly were held in mid-January while the Peace Conference was underway. A new national assembly met on February 6, 1919, at Weimar, a German city associated with the liberal heritage of Goethe and Schiller, which was distant in a great many ways from the Prussian capital, Berlin. There a new constitution was promulgated in August providing for a legislative body, the Reichstag, to be chosen by a system of proportional representation based on universal suffrage. This is characteristic of democracies that came of age in the era of the nation-state (whereas proportional representation is rare in democracies that originated in the state-nation period). The new constitution was made easy to amend: as little as four-ninths of the membership of the Reichstag could change the fundamental law by a constitutional convention or by referendum without any requirement of subsequent ratification by the federal states.
Under this constitution, the chief executive was given unusually broad powers: elected by a national vote to a seven-year term and eligible for reelection, he could dissolve the Reichstag and submit any law enacted by it to a public referendum. Most significantly, under the notorious Article 48, the president could suspend civil liberties in case of an emergency and rule by decree.
This constitution and the “Weimar” Republic it established were barely in place when the Allies presented their draft treaty proposals on May 7, 1919. The new German republic earnestly exemplified the parliamentary form of the nation-state, 18 whose advocates had contended in German politics since their break with Bismarck in 1878 – 1879. Nevertheless, the treaty terms were harsh. In addition to the various European cessions extracted from Germany—Upper Silesia, most of Posen, and what is now Pomerania all went to Poland; North Schleswig went to Denmark; three small frontier districts went to Belgium; Memel went to Lithuania; Alsace-Lorraine and the subsoil rights to the mines of the Saar went to France—all German colonies were handed over to the Allies, who were also to occupy the west bank of the Rhine for an unspecified period between five and fifteen years, a period during which France was to administer the Saar, whose ultimate future would be determined by plebiscite. The German army was to be limited to 100,000 troops (no more than 4,000 of whom could be officers); the navy was similarly reduced; the German general staff was dissolved; no military aircraft were allowed; artillery was limited to 105 mm guns;* and vast quantities of war matériel were handed over to the Allies.
Although the treaty made no final determination of reparations, Germany was to make an initial down payment of twenty billion gold marks. German assets abroad were confiscated, and the German merchant fleet was reduced by 90 percent.
There was a widespread reaction among Germans, shared by all parties including the Left, that Germany had been tricked into an armistice by the inducement of the Fourteen Points and then presented with a punitive settlement agreement once it had sacrificed any defensible military position. In June the Allies presented an ultimatum. The Weimar chancellor, Schneidermann, who opposed ratification, was forced to resign. On June 23, with Germany facing famine and there really being no alternative, the Reichstag voted to accept the treaty terms.
The Weimar coalition of Social Democrats and two center parties continued to govern until the elections of June 1920, when parties to the left and right of the coalition gained strength. A new chancellor formed a coalition with the center parties, joined by a right-wing populist party and without the Social Democrats.
A right-wing coup d‘état was attempted in March 1920, but it failed. There were left-wing armed revolts in 1920 and again in 1921, but gradually the republic stabilized. On April 27, 1921, the Allied Reparation Commission fixed the amount to be paid by Germany at 132 billion gold marks. The German government immediately fell, but the new chancellor nevertheless managed to secure a pointless acceptance by the Reichstag—the sum was far in excess of Germany's ability to pay. When a technical default in timber deliveries occurred, the French used this as a pretext for occupying the industrial Ruhr Valley. The value of the German mark deteriorated steadily, partly owing to reparations transfers and partly to the result of monetary expansion to cover budget deficits. Inflation flared wildly. In 1922, the value of the mark fell from 162 marks per U.S. dollar to more than 7,000.
This situation was considerably exacerbated by France's seizure of the Ruhr, to which the German government responded by organizing a campaign of passive resistance. French occupation forces replied with mass arrests, and with an economic blockade that cut off the greater part of the occupied Rhineland from the rest of Germany. By July 1, the mark had fallen to 160,000 to the dollar (the prewar figure had been 4.2 marks to the dollar); by November 20, to 4.2 trillion to the dollar. Barter replaced currency; food riots broke out; savings and pensions were erased.
The extreme parties gained by this situation, their ranks swollen by veterans who formed paramilitary groups attached to left-wing and right-wing movements. The communists attempted a revolt in Hamburg in October 1923; the fascists attempted a coup in Munich on November 8 of the same year. A new chancellor, however, Gustav Stresemann, canceled the campaign of passive resistance, resumed reparation deliveries, simultaneously declaring an emergency and using the army to suppress the uprisings. Gradually, better relations were established with the Allies. Inflation was brought down by the issuance of a new mark, supported by mortgages on the entire industrial and agricultural resources of the country. Foreign investment began to flow back into Germany, and production, as well as employment, boomed. A new reparations agreement, the Dawes Plan, restructured the reparations schedule and provided for foreign loans; eventually the total amount was set at 121 billion marks, to be paid over a period of sixty years.
Throughout this period, Germany's relations with the international community were a principal domestic political issue. Stresemann, now foreign minister, pledged to fulfill German treaty obligations, which had the effect of securing substantial Allied concessions, and restoring Germany's international stature; but his policies were violently attacked within the country. In return for German acceptance of the Dawes figures, Stresemann won the withdrawal of French troops from the Ruhr in 1924. In return for a renunciation of claims on Alsace-Lorraine and guarantees of the Versailles borders, Germany gained the Allies' evacuation of the Cologne zone of the occupied Rhineland, and entry into the League of Nations in 1926.
These links to the international community were largely responsible for Germany's recovery and Stresemann has been rightly honored for forging them, but they also meant that German prosperity was dependent on foreign credit so that when the worldwide depression caused a contraction of liquidity and a sharp reduction in overseas Allied investment, Germany was particularly vulnerable. Moreover, the actions of foreign governments—like the blocking of a customs union between Austria and Germany by French and Italian opposition—were viewed in Germany, not unreasonably, as impeding any economic rebound.
Through all this, Hitler rose to power. He made his first public impression, and he continued to draw audiences, and hold and augment them, by delivering the same speech over and over again: a vitriolic speech entitled, The Treaty of Versailles.19
Notice that this is an example of an inner constitutional movement—the fascist attempt to seize the German nation-state—in reaction to an external constitutional movement—the attempt by the society of nation-states to impose a parliamentary form on Germany. Hitler saw this relationship and we must not miss it.
In early 1932, the number of unemployed reached six million, or about one-third of the workforce. The Nazi Party, which had come into being out of hostility to the Versailles Treaty,* became the largest party in the legislature of Prussia, the largest of the German states. Adolf Hitler, the party leader, came in second in the national presidential election to the incumbent, the venerated World War I general Paul von Hindenburg. After the election, a new chancellor was named, Franz von Papen, who negotiated the virtual abolition of reparations at a conference in Lausanne in June 1932; a lump-sum payment of three billion marks was to be made into a fund for European conservation.
Nevertheless, elections in July gave the Nazis 230 out of 647 seats in the Reichstag. They immediately brought down von Papen when the parliamentary session began, and he then dissolved the Reichstag and began to govern by decree, as provided by the constitution. Fresh elections were held in November; a new chancellor was named, General Kurt von Schleicher, but he too was unable to put together a governing coalition. This time Hindenburg refused to permit the Reichstag to be dissolved. In this crisis, von Papen brokered a deal whereby the Nazi Party would be brought into a governing coalition. The Nazi ministers would be heavily outnumbered in the cabinet and would hold no key posts, but the chancellorship would go to Hitler. On January 30, 1933, he was given the seals of office.
Hitler immediately pressed for fresh elections, reassuring the cabinet that the composition of the coalition would remain unchanged. The election day was set for March 5. On the night of February 27, however, the Reichstag building was destroyed by arson. On the plausible pretext that this event presaged a Communist coup, Hitler assumed emergency powers. In the election, the Nazis increased their numbers to 288 and with the 52 conservative Nationalist members achieved a working majority.
Now Hitler proposed the Enabling Act, which would allow the government to rule by decree independently of the Reichstag or the president. Such a step required a two-thirds majority, but this was achieved once Hitler was able to persuade the center party to support the measure. The Enabling Act remained the statutory basis for Hitler's dictatorship throughout the Third Reich. Prior to this, the Weimar constitution had permitted several chancellors to stay in office even after the president had dissolved the parliament in which the chancellor had held his majority; these chancellors had continued to govern through the use of presidential emergency powers, and by legislating on the basis of powers previously delegated to them by the Reichstag.20 The Enabling Act was a more extreme step in the direction of making the emergency state a continuous constitutional one.
CONSTITUTIONAL INTERPRETATION: THE LEGAL PHILOSPHERS
Weimar presents a drama that illuminates the constitutional difficulty that faced the peacemakers at Versailles, for in Weimar21 the constitutional problems that led to and extenuated the Long War were conspicuously acute. We can usefully link these problems with the important legal interpreters who addressed them, and gain an understanding of the moral choices facing constitutional decision makers at this historic juncture.
First, there was the transition from the state-nation to the nation-state, which required a complete rethinking about the sources of state legitimacy; the legal figure most associated with this rethinking in Germany was Georg Jellinek. Second, there was the unresolved ideological conflict among liberals, fascists, and communists, a conflict that reflected in miniature the worldwide struggle that would last until the end of the 1980s. Two emblematic Weimar figures symbolized for their contemporaries the liberal and fascist approaches to the bases for law: Hans Kelsen and Carl Schmitt; to them should be added the leading members of the Marxist Frankfurt School. Their three approaches to the construction of consti-tutional jurisprudence were fundamentally incompatible; there was no mediating approach that could reconcile them. In such circumstances, Germany—and the world for which Germany provided a stage for this struggle—had to resolve the conflict by the triumph of one approach and the destruction of the others before a constitution for Germany (or for Europe) could endure.
JELLINEK
Georg Jellinek was born in Leipzig in 1851, the child of a highly distinguished Moravian Jewish family.22 Like many of his contemporaries, Georg Jellinek converted to Christianity, perhaps to remove any legal disabilities that were attached to Jews.
Jellinek taught in Vienna for ten years (1879 – 1889), briefly at Basel (1890 – 1891), and for the last twenty years at Heidelberg (1891 – 1911). He achieved international fame with Die Erklärung der Menschen- und Bür-gerrechte (1895), which was translated in 1901 into English as The Declaration of the Rights of Man and of Citizens. This book presented the thesis that the French Declaration of the Rights of Man was derived not so much from the thought of Rousseau, as was (and is today) generally believed, but largely from the Anglo-American theories used to support the American Revolution. Book I of the present work suggested a similar relationship.
The State, Jellinek held, is a psychological mass-function. It has no reality apart from its human constituents, who associate in order to form a community of purpose. This emphasis on the nation's role in endowing the State with meaning is the nation-state's reversal of the ideology of the state-nation, which held that it was the State that endowed the nation with meaning.23 Jellinek saw that the legitimacy of the State itself was at stake whenever it changed constitutional form. “To think of the sovereign as a ‘determinate human superior' without qualifications concerning the legitimacy of this superior's position… is a misunderstanding derived from the days of autocratic monarchy.”24
Jellinek analyzed law through two overlays: sociological and normative. These two are in some tension, for according to the former analysis, a legal rule earns the status of law to the degree it is accepted, as reflected in popular behavior; whereas for the latter approach, a legal rule retains the status of law even if it is disobeyed. Reconciling the two perspectives is critical to Jellinek's overall view.
On that view, only a valid law is part of the legal order; the test of that validity is the ability of a norm to motivate compliance by engendering a sense of obligation, and because we only feel a sense of obligation to those laws we believe are valid, Jellinek's characterization is refreshingly non-foundational.* A valid law is simply one that is accepted as valid.
It seems generally true of human nature that it regards that which is seen to exist in fact, especially over a period of time, as normal, i.e., as establishing a norm. To find a reasonable justification for this normative power of facts would be wrong; whatever actually exists can be rationalized later; its immediate normative significance lies in the irrational acceptance of what is known and practiced as being right.25
In contrast to Austin, Jellinek rejected the idea that coercion can render a law valid: if coercion were the validating element, then any legal rule could be law, whereas we know that actual laws are constrained by real conditions. Moreover, any positivistic rule that postulates the existence of the State prior to law and postulates the State as the only source of law will be unable to account for the validity of international law. On the other hand, Jellinek conceded that there is no Volk, no nation, that validates international law by virtue of its traditions and culture.
This argument led Jellinek to his most famous formulation, the idea of autolimitation. It is a crucial notion for the nation-state, because the State is held to derive its authority from the nation. If the State promulgates law, how can it bind itself? If the nation is the source of authority, how can it be bound? Jellinek concludes that the State is bound by norms, the content of which it controls to this extent: the nation authorizes the State to act according to the norms the nation recognizes; the State chooses those norms that serve as the substantive content of the law it enacts. This means the State must agree to limit itself according to the norms it serves. And this also accounts for international law: not just the will of a single state, but rather the collective autolimitation of a number of states acting in accord produces international law. One consequence of this view was the discrediting of the former state-nation structure of the German Confederation, which the Congress of Vienna had set up, because the confederation form was backed solely by international law and thus was a weak and ineffectual structure, having no roots in a national society to supply a sense of obligation.
Jellinek's views are a good summary of the jurisprudence available to the statesmen who took the nation-state of the Kaiserreich into the nation-state of the Weimar Republic. That Jellinek's fundamental postulates—the normativity and theoretically independent validity of law, and its dependence in fact on the real existence of the politically organized Volk—would prove incompatible was quickly evident in the new state. In the first direction went the liberals, who maintained the integrity of the law above politics; in the second direction went the fascists and the communists, who demonstrated that law could not function in an atmosphere of violent political discord.
KELSEN
The leading figure of twentieth century jurisprudence was Hans Kelsen. Born in Prague in 1881, Kelsen was a professor of law at the University of Vienna in October 1918 when the Emperor Karl restructured the Austro-Hungarian empire. Later Kelsen became an important drafter of the postwar Austrian constitution, which, like that of Weimar, was organized according to parliamentary nation-state ideas. His principal contribution to this effort was the shaping of the Constitutional Court, to which he was named justice and general rapporteur, a post he held until he was deposed in 1929.26 In 1930 he became a professor at the University of Cologne. After emigrating to the United States in 1940 he taught at Harvard and then at Berkeley.
Jellinek and others recognized that law is normative (that it sets a standard) and therefore different from social facts (which are as they are, not necessarily as they should be). Kelsen's fundamental insight was that the full significance of this distinction had not been appreciated. This led him to two postulates: (1) the relative nature of law, and (2) the essential criterion of formality. Kelsen's working out of these two principles led him to a third, (3) the primacy of international law.
Jellinek conceded that law asserts norms, and he acknowledged that juristic concepts do not decide natural facts, 27 but he made law depend upon the psychological fact of acceptance. For Jellinek, the normative power of a legal rule depends upon its motivating power; its validity is a matter of its effectiveness. This introduces the world of causality, which is a feature peculiar to the world of natural reality. This move, in Kelsen's words, overlooks the fundamental characteristic of any norm: “that it is a rule not of but for human behavior.”28
No idea of Kelsen's is more celebrated or more misapprehended than this distinction between norm and fact. Relying on the Kantian idea that the categories of a field constitute its facts for it, Kelsen rejected Jellinek's assumption that sociology and jurisprudence have the same subject matter. This move led to Kelsen's description of the relative nature of law and not, as is usually asserted, the absolute nature of law, isolated from all culture.
Consider the neo-Kantian distinction between a practical and a theoretical science. A practical science (like Kant's practical reason) tries to bring about factual conditions in accordance with some desired standard; this standard is the normative. Every practicing politician, no less than every minister delivering a sermon, reflects such practical reason in his or her program. By contrast, a theoretical science determines the object of its discipline and explains and unifies the data that are factual for it. Every theoretical physicist, no less than every historian, must collect and attempt to explain the facts of his or her study.
Jellinek too had distinguished between theoretical and practical science by claiming that a theory is explanatory, while a practice is applied. Kelsen, however, contended that the distinction between theory and practice is a relative one, and that it depends upon the further distinction between fact and norm. The relevant facts for a theoretical science are different from those of a practical science, though both must deal with facts. The real difference between theory and practice is that each deals with different facts and has a different role for norms. This is the key to law's relativity. Vis-à-vis the social sciences, law is practical and has a normative aspect, whereas social sciences deal in social facts as they are; in such a context, law is a norm. But vis-à-vis politics, morality, ethics, and philosophy, jurisprudence is theoretical and in this context law is only a fact. Whether a law is wise or just or cruel is an important question, but not one for jurisprudence; whether studies show us that most French citizens do not report all their earned income does not bear on whether the French income tax law provides that such income is reportable.
Kelsen's first postulate then was that law has a Janus face; to ignore either of its visages is to assimilate it into a different discipline and thereby distort its true subject. The sociology of law, for example, is desirable as a guide to the development of new law, but such studies do not make up jurisprudence because they treat law not as a norm, but as a causal factor. Such efforts, in their “desire to explain how law ‘actually happens[,]’ [try] to put legal norms on the level with laws of nature.” Unlike the law of gravity, however, a legal norm is not always obeyed; indeed, there must be the possibility of disobedience or the rule would not embody a norm. For this reason, Kelsen disagrees with Oliver Wendell Holmes, Jr.: jurisprudence is not a prediction of what courts will in fact do, as Holmes concluded, but an assertion of what they ought to do.
At the same time, however, the norms of law are not those of justice. If law reveals its normative face in the presence of social science, it is a mistake to conclude that the standards of normative disciplines—ethics and morality, for example—are coextensive with those of law. This is hard to accept because, Kelsen wrote, we are inclined to identify law with justice in order to justify a given social order. There seems to be an irresistible urge to use jurisprudence as a means of attacking a particular social system (or promoting one). This, however, is beyond the cognition of legal science. To decide whether a norm is law, one must look to the presence of certain formal elements. After all, there are many wholesome rules of life that are not adopted by the legislature and enforced in actions before courts. Moeover, to decide whether a law is just, one cannot look to any criteria in the law itself, for both just and unjust rules can be (and are) embodied in valid laws.
This brings up the question: when is a law valid, if it is not when it is just? Kelsen's answer is that a valid law is one that follows that logical form* that is unique to the discipline of law. That particular logical form reflects the internal order of the law itself: law is a specific technique for social control that, unlike such other techniques as religion or morality, which also offer forms of ordering relations, depends upon the invocation of a particular coercive sanction by an enforcing official as the consequence of an unlawful act. This internal logic is therefore the logic of the hypothetical: if X occurs, then Y ought to follow. Therefore, Kelsen argued, the logical form of a legal proposition must also be that of a hypothetical: if an act is performed (or fails to be performed) such that an event ensues, then enforcement by an official of a sanction against the actor responsible for the event can result. This hypothetical states the fundamental logical form of the legal proposition.29 If the advocacy of a crime actually produces that crime, then the police can arrest the advocate; if the failure to maintain proper brakes actually results in an accident, then the magistrate can hold the automobile owner liable for the damages resulting from the accident; if the parties to a contract agree to perform certain acts, and the execution of a contract memorializes this agreement, then a court can enforce the agreement against the parties; and so on.
This view—which Kelsen called the “Pure Theory” of law—has significant implications for the various views it is attempting to displace. For example, one familiar answer to the question how we know when a law is valid is whether the positive law in question corresponds with natural law. On Kelsen's view, however, positive and natural law can't both be law at the same time. If they are the same, then one scarcely needs positive law; 30 if they are different, then one formulation or the other is not law because both can't correspond to the formal expression indicated and be noncon-tradictory if they are not the same.
Similarly, Kelsen dismisses Jellinek's proposal that it is the efficacy of law that makes it valid; there is no term for efficacy in the formal proposition. Even an ineffective law would still be law if it corresponded to the formal expression that is inherent in legal rules. Even if, that is, an official were bribed and did not enforce a law, it would still be law—and why not, because if it weren't still law, there would be no need to bribe the official. Indeed one might say that, according to Kelsen's view, law takes place pre-cisely when its exhortations are not wholly effective, i.e., when it has failed to be followed, and an organ of the State is therefore engaged to render a sanction in order to bring about compliance.
Notice that Kelsen's formulation directs the rule to an organ of the State and not to the subject of the rule. This has the effect of doing away with fictions like the will of the people or the intention of the legislature and other metaphysical entities like the sovereign. All the elements in Kelsen's formula are observable statements of fact (though again it must be said that they are facts about norms—otherwise one runs the risk of confusing Kelsen with the behaviorists). There is no need for Austin's fictional command.
But if we give up Austin's sovereign, what legitimates a legal rule? The answer is found in Kelsen's description of a legal order as a hierarchy of norms.
To the question why a certain act of coercion… is a legal act, the answer is: because it has been prescribed by an individual norm, a judicial decision. To the question why this individual norm is valid… the answer is: because it has been created in conformity with a criminal statute. This statute, finally, receives its validity from the constitution, since it has been established by the competent organ in the way the constitution prescribes.31
What then legitimates the constitution? It is its correspondence with what Kelsen chooses to call “the basic norm” (Grundnorm). The basic norm “may state that the will of the king shall constitute law because he holds his authority by the grace of God, or it may say that what the medicine man declares taboo ought to be avoided because he has communion with the spirits.”
Of this basic norm many things can be said; indeed Book I of the present work is in part a history of the morphogenesis of such norms. But these things cannot be said within the discipline of jurisprudence, for which the basic norm is a fundamental datum that simply must be taken as it is. For jurisprudence the basic norm is a necessary condition, but not a cause. It will be evident from this description that while he provides an account of the legitimacy of a state's constitution, Kelsen does not provide for the legitimacy of the State itself.
For Jellinek the State had been a sociological fact, a thought-content common to a group of people; that it could also be the subject of a juristic account posed no problems for him. Jellinek held that the same object can be a datum for different realms of cognition, as a symphony can be described both according to aesthetics and according to physics. Kelsen strongly disputed this. Indeed he took Jellinek's example, the symphony, and turned it against him: the mere physical description of sounds might be called many things, but not a symphony.32 The State is a juristic phenomenon. The sociologist has to presuppose a legal order so that he or she may then describe the State. Therefore no sociological account can provide for the legitimate basis of the State.
The world is made up of facts.33 Statements that evaluate rules can do so on a factual basis (for example, a change in tort liability might lead to a more or less efficient outcome), but if these statements purport to do so on a normative basis (a more efficient tort rule is a better tort rule), they do not state facts. A thought is a fact; the totality of true thoughts would be a representation of the world. By contrast, all human institutions are nothing more than various orders, sets of rules, and thus they are normative. Institutions, therefore, have no real existence. The legitimation of the State cannot come from the fact of the law because a fact cannot legitimate, can-not provide a normative outcome. The mere presence of a constitution can-not legitimate a state. Nor can this legitimation come from the normative dimension of constitutional law because the State is merely the juridical employee of constitutional law. Some other normative order must legitimate the State.
The State has the juridical status of a corporation: it exists by virtue of a superior legal order that endows it with validity. Because the validity of a legal order is a matter of its correspondence with a norm, it follows that a state can be legitimated by its correspondence to those rules that are the product of interstate norms. In other words, the state is legitimated by the norms of international law, not constitutional law.
… All legal formations may be arranged as a continuous line of formations gradually passing into one another. This continuous line starts with the contractual community of private law, leads to the association, the municipality, the country, the member-state, the federal state, the unitary state, unions of states, and treaty communities of international law, and ends in the universal international community.34
Kelsen's argument for the primacy of international law can be summarized as follows: only one normative system can be valid at one time; if the State was the creator of its own total legal order, these various orders would have to be consistent in order for there to be international law; there is an international legal order because its propositions can be stated in terms of the fundamental legal sentence formalized above; therefore, while it is possible that international law is delegated from the various states, if there is an international legal order—and Kelsen analogizes it to a primitive legal order where self-help is the principal law-enforcement regime—then it is reasonable to conclude that national authority is delegated from international authority, not the reverse.
A number of interesting conclusions may be drawn from Kelsen's views. First, the State simply drops out as a real entity. In Kelsen's words, the State “plays the same role as that of God in metaphysics and gave rise to the same problem, the reconciliation of sovereignty and legal limitation,” the problem that Jellinek sought to solve by autolimitation, the problem that theologians struggle with when they undertake to reconcile the existence of free will in the world where there is an omnipotent god. The State is a kind of ghost in the machinery of official acts, which correct analysis can eliminate the way analytical psychology eliminates the soul.
Second, the status of revolutionary states that challenge the international status quo is delegitimated, whereas otherwise the different moral and political qualities of states are treated relativistically. That is, each is derived from a broad legitimacy and differs from every other insofar as some fundamental, local social norm is being followed, the evaluation of which is beyond the scope of law.
Third, there is a strong implication that “political theology”—the focus on value-laden dogma and dialectic—unnecessarily makes the achievement of an harmonious legal order more difficult.
Fourth, the emphasis on the application, rather than the creation, of norms suggests a constitutional emphasis on the judiciary rather than on the executive or legislative.
In sum, Kelsen's is the jurisprudence of Versailles and Weimar, and as such it was at the epicenter of the political hurricane building in Germany in the 1920s and 1930s.
SCHMITT
Kelsen sought a jurisprudence that would support “a government of laws, not of men.” Lawfulness is the measure of legality. Such a jurisprudence is stifling, however, when it confronts a treaty that though lawfully ratified is believed to be the instrument of oppression, or when it encounters parliamentary maneuverings that though procedurally correct are the subject of universal contempt. Hans Linde has written:
It was inevitable that a theory which thought it beyond the competence of legal science to attempt a solution of, or even to recognize, the social and economic problems foremost in the contemporary public consciousness would meet with considerable opposition.*
Many Germans sought a jurisprudence that would locate the criteria of legality in the substantive content and real-world effects of the law.
This movement included Marxists, pragmatists, nationalists, sociologists, and others, who all agreed that law was first and foremost an element in human culture and therefore that it must be understood in its relation to the totality of the cultural milieu. Whereas the neo-Kantians, of whom Kelsen was the most prominent, held that the test of legality lay in the correspondence between the legal rule and the formal requirements of a legal proposition, these neo-Hegelians believed that legality was derived from a correspondence between the legal rule and the cultural needs and identity of the society. It was the duty of the neo-Hegelians to expose the derivative nature of legalization, and to show how cultural institutions tended to serve certain interests. Such a view tended to legitimate change (as the needs of the culture changed) instead of reinforcing stasis.
The most forceful critic of Kelsen and the legal order of Versailles and Weimar was undoubtedly Carl Schmitt. His early reputation in the 1920s was built upon his savage criticism of liberal ideas and institutions. His “debunking of parliamentary government and his exposes of liberal hypocrisy remain influential,”35 particularly on the Left, although Schmitt himself was an ardent fascist. The enduring interest in this figure must be attributed partly to the Nietzschean glamour of his aphoristic prose, but also partly to his role as the chief juristic apologist for the Nazi regime. He was, Herbert Marcuse said, the most brilliant of all the Nazis, and this alone would lend a certain fascinating horror to his writing.
The Versailles settlement meant that Schmitt could not receive a post at the university where he had qualified as a law professor because Strasbourg was now a part of France.36 Instead he found a lectureship at the Business School in Munich and began a prolific career as a scholar and polemicist.37 In 1921, Schmitt moved to the University of Bonn and began the work for which he is best known today.
In 1922, his small booklet Political Theology38 appeared, which began with the famous sentence “Sovereign is he who decides on the state of exception.” This electrifying expression was strikingly unconventional because, unlike Jellinek's and Kelsen's, its definition of sovereignty addressed the power structure of the State instead of its legal framework. In a single sentence, it captures the essential idea of the “Führer,” a leader embodying sovereignty who can thus decide when the rules of law can be suspended, and it unites this idea with the most profound identity of the State. The State is not driven by law: rather law is the State's creature, to be used as the State determines. The following year he published The Crisis of Parliamentary Democracy, 39 which attacked liberal parliamentarianism and drew a sharp distinction between democracy and representative government. Then came The Concept of the Political, 40 which introduced the friend/enemy distinction as the basis for all politics, the idea for which Schmitt is best known.
In 1933 Schmitt accepted an offer from the University of Cologne. He had previously visited the most renowned member of that faculty, Kelsen, and asked his support for the appointment despite their controversies in the past. Kelsen had obliged. On March 23 of that year, the Reichstag adopted the Enabling Act, empowering Hitler to rule by decree. In April, Jews were banned from university posts; Schmitt was the only law professor at Cologne not to sign a petition on behalf of Kelsen, who was removed. On May 1, Schmitt became a member of the Nazi Party.
In November Schmitt became the head of the professors' branch of the Nazi legal organization; in June 1934 he was made editor-in-chief of the leading law journal. He was given a chair at his alma mater, the most prestigious German university, the Royal Friedrich-Wilhelms in Berlin.
After the war he was interrogated at Nuremberg, but was not prosecuted. He never held another university post.
Schmitt lived on in West Germany until his death in 1985. He maintained always that he had been the victim of the Nazis, forced into collaboration by the politicians who voted for the Enabling Act. He called his house. San Casciano, in an allusion to the place where Machiavelli spent his exile writing the Discorsi and the Principe. Schmitt described himself as a kind of Benito Cereno—the character in a Melville novel who, as captain of a slave ship taken over by slaves in a revolt, is forced to sail to Senegal. His peculiar behavior and unusual activities on board the ship are observed by the captain of an American boat who does not really appreciate what is going on; only later, when Cereno escapes to the American vessel, is everything explained.
Schmitt's jurisprudence reflects four notable ideas: (1) that the crisis in Weimar Germany can be traced to its constitutional order—liberal parliamentarianism—and that this order was imposed on Germany by the Versailles Conference, whose directorate attempted to compose a society of states with similar liberal parliamentary constitutional orders; (2) that the State defines itself by the distinction it draws between friend and enemy, and that it achieves unity and makes homogeneity possible (without which unity is impossible) through its reliance on this distinction; 41 (3) that sovereignty is the power to determine when an emergency situation exists and thus when the legal rules that ordinarily govern should be suspended; (4) the relationship Schmitt draws between rule, order, and decision that is sometimes labeled “decisionism,” including his distinction between the commissarial and sovereign dictatorships—between, that is, a dictator who suspends the constitution in a case of emergency in order to protect the substance of the constitution, and the dictator whose intention is to produce an entirely new constitution by abrogating the present constitution.
Schmitt despised the Weimar regime and also the parliamentary democracies of which it was a copy, which had forced the Versailles agreement on Germany. All of these elements were interlocked in Schmitt's thought: that the parliamentary democracies represented only one version of a new constitutional order, the nation-state; that their victory in the war prompted the Germans to copy their constitutional form at Weimar; that the Peace Conference composed of the society of such states then ratified its consensus on this form, and imposed this form on the states of Europe and much of the world. For this reason, it is sometimes hard to see whether the basis of Schmitt's views lies in his hostility to Versailles or to Weimar.
According to Schmitt, parliamentarianism—which he called “government by discussion”—is an ineffectual and ultimately self-destructive guardian of the State, and thus was unable to protect German interests abroad or even to bring about stability at home. Moreover, parliamentarianism's claim to democracy is a fraudulent one; it is merely a ruse to allow government by an intellectual and liberal hierarchy. True democracy relies on the principle that equals are treated equally and, just as importantly, that unequals are not treated equally. Thus true democracy requires homogeneity—the assemblage of equals—and, sometimes, the eradication of heterogeneity.* In Schmitt's view, a democracy can only maintain itself by protecting its homogeneity. But parliamentarianism, because it depends on a pluralistic coalition of interest groups and because it is too weak to take decisions, will never be able to secure homogeneity. Immigration of minority groups will be unimpeded, and thus increase the fragmentation of the society. In the weak parliament that results, special interests will be able to tie up legislative action and thus frustrate true democracy.
For Schmitt, parliamentarianism is that constitutional system that serves the bourgeois interests that support liberalism. First, it subordinates the monarchy and aristocracy and thereby elevates the middle class to a position of governance; at the same time, it co-opts democracy by channeling the power of the more numerous working class into stalemated parliamentary maneuvers and into the separated, and therefore powerless, branches of government. Second, parliamentarianism establishes a normative order that secures the structure of a market economy, restricting the taking of property by the government and using public power to enforce private agreements. Third, parliamentarianism enshrines civil liberties that are of the greatest value to the professional and merchant classes and thereby gives the imprimatur of legitimacy to the tools of political dominance of one class.
Every legal order, according to Schmitt, is the reflection of a concrete social and political order in which some individuals or groups rule over others; the unusual thing about liberal parliamentarianism is that it seeks to conceal the dominance of the bourgeoisie behind a façade of legal procedures. Parliaments are useful in order to let certain measures through when these benefit private interest groups (claiming that these reflect the will of the majority and therefore must become law) and to bottle others up when they would undermine the interests of the bourgeoisie. In either case the clash of values that lies at the heart of politics, the resolution of which is the purpose of politics, is buried or even denied in the larger allegiance to the law and to lawful procedures.
Kelsen and Schmitt agree that we live in an age of relativity, that is, an age without a single overarching, governing norm. Liberalism's solution to this vacuum of received authority is rationality. Let people believe what they wish; all people are rational and seek self-preservation; governments exist because it makes sense for them to exist from the point of view of the individual who seeks protection—no matter what other views he or she may have. By stripping the State of any particular legitimating myth, however, Schmitt thinks that liberalism perpetuates the greatest myth of all, the depersonalized, rational, mechanistic operation of the law. “Eventually, as part of the logic of the process, all that will matter is that the machinery functions, on the one condition that the subjects continue to enjoy protection so they can go about their own lives.”
By thus making civil society the field of competition for numberless private myths, the State sows the seeds of its own destruction because it has become marginal to the production of meaning, while private interest groups, each organized around its own myth, try to capture the machine of government. Meanwhile the lives of its citizens dissolve into consumerism, hedonism, and an attraction to cults.
The change in the constitutional role of the individual conscience, from something wholly marginal in Hobbes to something so central that it is the justification for the State's existence, is (according to Schmitt) the work of Jewish philosophers such as Spinoza and Moses Mendelssohn, who wished to cripple the state out of self-interest, and whose intellectual descendant is Hans Kelsen. This change leads to the gradual abolition of politics; indeed Schmitt takes liberals as attempting to reduce as far as possible the necessity of politics by establishing the supremacy of impersonal law. Such a world would lack the ambiance that can exist only when there is the possibility of sacrifice on behalf of a common ideal. This is, as Schmitt concluded in a lecture in 1929, “the loss of all that is noble and worthwhile; it is the loss of life itself.”42 For Schmitt as for modern-day communitarians, “[s]omething more than the economic hedonism of a crude liberal individualism, some idea of belonging to a well-defined community, is needed to impart worth to individual lives.”43 “[T]he value of life stems not from reasoning,” Schmitt wrote, “it emerges in a state of war where men inspirited by myths do battle.”
For Schmitt44 all concepts of law are fundamentally political. Indeed, “[e]very form of political life stands in an immediate, reciprocal structural relationship with its specific modality of legal argumentation and thought.”45 Because the standard modalities of liberal parliamentarian legal thought are not hierarchical—because the liberal claims to be neutral among the forms of legal argument—there is no rational way to resolve conflicts among them.46 Hence liberalism's claim to rely on rationality is either a fraud and masks the effort of the bourgeoisie to maximize their power, or an impossibility, which will necessarily give way to defeat by specific interest groups that can impose an agenda that ranks legal choices rationally according to how their interests are served. The judge, not the norm, decides; the politician, not the process, picks the judge; the legislator, not the law, determines the jurisdiction of the court; the constitutional authority, not the constitution, grants the power to legislate. Thus the liberal legal order is doomed to undermine itself because when it finally does act, it exposes the parliamentary order to be the acts of men, not of laws.
Finally, liberal democracy finds its ideal in eternal discussion and compromise, whereas great political issues admit of no compromise. Just as “[b]etween Catholicism and atheism there is no compromise,” so between dictatorship and anarchy there is no mediator.
The Concept of the Political (1928) begins with the sentence “The concept of the State presupposes the concept of the political.” The political, in turn, depends upon Schmitt's famous distinction between enemies and friends.
The specific political distinction that is the basis for all political activity and impulses is the distinction between friend and enemy… The point of the distinction between friend and enemy is to denote the highest possible intensity of a union or separation, of an association or disassociation…. The political enemy need not be morally evil or aesthetically ugly; he does not have to make an appearance as an economic competitor, and it can even be advantageous to do business with him. However, he is the other, the stranger. It suffices for his being that he is in some specially intensive sense something existentially different and strange, so that in the extreme case conflicts with him are possible which cannot be decided by some predetermined general norm or by the pronouncement of some “disinterested” and thus “unpartisan” third party.
Schmitt's choice of the word enemy is not mere hyperbole:
the friend and enemy concepts are to be understood in their concrete and existential sense, not as metaphors or symbols47… To the enemy concept belongs the ever-present possibility of combat…. The friend, enemy, and combat concepts receive their real meaning precisely because they refer to the real possibility of physical killing…48 What makes politics special, what lends it its “specific political tension,” is the shadow of violent personal extinction cast over all genuinely political action. “The political” lofts citizens above the “economic” by confronting them with a mortal enemy, with the threat of violent death at the hands of a hostile group.49
Many conclusions are drawn from this vivid, even harrowing idea. A constitution depends on an act of sovereign decision; sovereignty is created by the political decision to constitute the political unity of a people— that is, the institutionalization of a particular friend/enemy distinction. Only when the criteria for being a fellow member of a homogeneous nation have been determined—an existential matter—is the authority created not only for politics but, a fortiori, for law.
Schmitt is able to draw sharp criticisms of parliamentarianism and socialism from this distinction. According to Schmitt, the parliamentarians usually divide conflict into three types—conflicts of interest, ideas, and ultimate values—and deal with these by means of negotiation and compromise, rational debate and voting, and the privatization of the spiritual, respectively. Socialists reduce all conflict to class conflict, which will ultimately end with the victory of those who are morally superior, the members of the working class. But neither of these ideologies accounts for the sort of conflicts one currently sees in Lebanon, Northern Ireland, the former state of Yugoslavia, Kashmir, Rwanda, and elsewhere. Rather non-economic divisions arising from religion, ethnicity, and race are peculiarly insensitive to treatment by rational debate and negotiation, because such conflicts are defined by the confrontation of absolutes and by absolute commitment to that confrontation. The parliamentarian can't face this reality. The socialist merely brings it home and, by making the enemy a class within the nation, turns the fact of conflict into civil war.
Most importantly, the friend/enemy distinction provides the basis for Schmitt's theory of law and the significance of law. “Der Feind ist unsere eigene Frage als Gestalt.” (“The enemy is our own question in visible form.”) The basis for the crucial distinction between friend and enemy is a cultural matter, and because the legal order depends upon the State's decision in making this distinction, the cultural order is prior to the legal order. Kelsen had assumed, like Hobbes, that the condition prior to law was complete anarchy and that a legal order permitted a cultural order to develop; Kant gave the example of the cultural phenomenon of marriage arising from a legally recognized contract for mutual sexual relations.
Schmitt, however, argued that cultural institutions are not created by law, nor can their peculiarities be reduced to legal norms; cultural customs and practices carry their own concepts of what is lawful and what is normal. Law is forced to accept these cultural standards. If legal rules conflict with cultural norms, the legal rules will not function as a norm. By identifying the role of the friend/enemy distinction, Schmitt hoped to re-politicize theories of law and link them to the existential facts of a national culture.
“The normal,” Schmitt wrote, “proves nothing, the exception proves everything; not only does it validate the rule, the rule above all lives off the exception. In virtue of the exception, the force of actual life breaks through the crust of a mechanics grown listless by repetition.”50 The resolution of fundamental clashes of values, which underlie conflicts in law, cannot come by negotiation or procrastinating compromises and half measures. Rather this resolution will occur when the sovereign makes a genuine political decision by invoking a condition of exception. “And the struggle for sovereignty, the struggle to be the one who decides, will be won not in the reasoned debates of parliamentary politics, but in the battle of the politics of identity.”51
Why does law bind the sovereign, if the sovereign is the source of the political authority for law? And if law does not bind the sovereign, how is it possible to operate in normal times when a fresh decision by the sovereign is not necessary (or possible) in every instance of the law's application? The answer is to reserve to the sovereign the decision of when to suspend the normal operation of law; indeed, this can be the only answer that is consistent with both the concept of sovereignty and the existential basis of law.
Liberalism attempts to cabin such situations by specifying in advance the conditions for declaring a state of exception (for example, the provision in the U.S. Constitution for the suspension of habeas corpus) and the method of resolving the crisis. Kelsen, as we have seen, solves this problem by eliminating sovereignty altogether as a kind of epiphenomenon of law, a concept that has no independent existence outside law, a mere personification of the legal order. Schmitt, however, sees that the death of an external sovereign, like the death of God, does not lead to the triumph of science—even legal science—but to the war of gods, the conflict of interest groups each animated by its own myth. As a description of Weimar Germany, one would have to say that Schmitt's account, not Kelsen's, was closer to reality.
It must be emphasized that Schmitt is not antidemocratic. On the contrary, he holds that only an appeal to popular sovereignty can legitimate modern political authority. Like Kelsen, he is a partisan of the nation-state. He rejects claims of legitimacy based on tradition, but he also rejects the claims of parliamentarianism that base legitimacy on rationality, because rationality inevitably subverts authority and thus indirectly subverts democracy.
Recognizing politics' need for a myth, Schmitt wishes to replace the procedural myth of Kelsen with a myth of substantive content. In Schmitt's view, this means a vision on behalf of which persons will be willing to sacrifice their lives. Indeed he holds that one's life is worthless unless one has a purpose for which one is prepared to die. Liberalism can-not ask for such sacrifice from individuals because it exalts the ultimate worth of the individual life.
Schmitt relies on two concepts—the state of exception and the friend/ enemy distinction—to draw one fundamental conclusion: the critical need for a decision.52 The constitution of a State is the result of an act by the nation that determines the form in which its will is to be expressed: that act, whether it is the foundational act of creating the friend/enemy distinction or the amending act of the state of exception, is the crucial act of decision.
By contrast, for liberal parliamentarians invoking a state of exception meant a ceasing of the operation of law. If, as Kelsen held, law is equivalent to the norms contained in the positive law of a valid legal order, then the cessation of the operation of law also meant a collapse of the legal order. Gerhard Anschütz, Weimar's most distinguished constitutional lawyer, said of Article 48—the provision for emergency powers in the Weimar constitution—“[h]ere the law of the State stops short.” Schmitt found this a telling remark, the inadvertent but unavoidable consequence of liberalism's effort to remove politics from law. Such a moment of supreme political importance was to occur in a legal vacuum. On the contrary, Schmitt argued, all legal orders are founded on an existential decision, and not on a norm. As a result, even in the state of exception where the positive law recedes, the State—the legal order—remains.
Democracy, Schmitt writes, is defined as the mutual psychological identification of rulers with ruled. While the parliamentary democracies divide the public will through organized dissent, opposition parties, pressure groups organized around particular issues, a critical free press, minority protests, and even the secret ballot—which effectively prevents a union of wills in one public acclamation—the dictatorships provide an opportunity for the coming together of a people and a forum for the expression of their unity. The public will is not parceled out and diluted by elections, but rather focused in the way that only the will of a substantively homogeneous group can be.
Perhaps at one time the myth of parliamentarianism—the picture of independent representatives of the people engaged in a rational search for consensus on the best policy for the society—could obscure the reality of parliament as an auction house for bargaining among interest groups. But the rise of mass parties, highly effective interest groups, expensive political campaigns, a broad-based electoral franchise to whom advertising is as important as it is to a broad-based consumer population, and, above all, a free press to expose parliament as little more than the display case of speeches made on behalf of clients—these developments have exploded the myth of liberal parliamentarianism. In its place is the movement and its leader: a state defined by values evoked by a decision, and ratified by ecstatic mass acclamation.
The dictator is required to act not only in the constituitive moment but at all times. He gives voice to the sovereign people, the nation.
The norm does not exist which can be applied in chaos. The order has to be established, so that the legal order must have meaning. A normal situation has to be created and sovereign is he who definitively decides whether this normal state actually obtains. All law is “situation law.” The sovereign creates and guarantees the situation as a whole in its totality. He has the monopoly on this ultimate decision.53
All this was very congenial to the Nazi state. Even though this state was stratified into many different groups, it was not a pluralistic state, because it sought a total unity of order arising from the führer's decisions. Moreover, there was an enormous increase in discretion, even to the point of passing ex post facto laws applying new rules to legal situations that arose prior to the rules. This arbitrary discretion was rationalized by invoking the nation-state legitimacy conferred by the führer as the apotheosis of the popular will, or as Mussolini put it (speaking of himself): “Duce sei tutti noi!”54
In summary, “decisionism” did not merely exalt the role of the decision. Where Kelsen, beginning with the logical form of the legal proposition, looked behind each legal act for the norm validating it and attempted to show that the basis for establishing the legality of a decision stood prior even to the constituent authority, Schmitt saw each legal act as a decision. Like his opponents in the Frankfurt School, he saw law as indeterminate, requiring fresh decisions inevitably and ubiquitously. He therefore substituted a hierarchy of men for the hierarchy of norms, finding the basis for legal validity in the correspondence between law and the actual social and political situation.
THE FRANKFURT SCHOOL AND OTTO KIRCHHEIMER
Schmitt and the German fascists were impressed by what was happening in Rome in the 1920s, but other intellectuals looked to Moscow. The Versailles settlement was no less an anathema to these persons, and Weimar, which they too saw as the creature of Versailles, was no less contemptible. Indeed the ideological alternatives that made their capitals in London, Rome, and Moscow were precisely mirrored in Weimar political society and thus the constitutional turmoil of that society is an excellent subject for our study of the constitutional situation of the larger society of nation-states.
“The Frankfurt School” is the name given to the writers and their works that came out of the Institute for Social Research founded in 1924 and attached to the university of Frankfurt. Its members were driven from Germany by the Nazis; some emigrated to Paris, to New York (where they became attached to Columbia University), and to Los Angeles, and their most prominent leaders then astonishingly returned to Germany after World War II. The romantic aura that still surrounds the Frankfurt School arises perhaps from this saga of a persecuted community of intellectuals, hounded into exile, courageously defending their vision against a malignant, or in some cases benign but apathetic, bureaucratized world.
This saga began when Felix Weil, the son of a millionaire who had made a fortune in South America, set up a trust fund to found an institute for Marxism, hoping one day that it would be handed over to a triumphant German Marxist state. Under the Institute for Social Research's first director, Carl Grunberg (1924 – 1928), the focus of research was largely Marxist orthodoxy. In addition to Weil's funds, the Institute sought financial support from the Prussian Ministry of Culture (Frankfurt was situated within the state of Prussia) and an affiliation with the University of Frankfurt. Despite the open breach between communists and democratic socialists, the Prussian state government, which was controlled by the Social Democratic Party (SPD), nevertheless supported the Institute and a university affiliation was procured.
The members of the Frankfurt School from 1923 to roughly 1950 were Marxist intellectuals of a specific sort.55 In his important collection of essays, published the year of the founding of the Institute, György Lukács wrote:
Orthodox Marxism… does not imply the uncritical acceptance of the results of Marx's investigations… It is not the “belief” in this or that thesis, nor the exegesis of a “sacred” book. On the contrary, orthodoxy refers exclusively to method. It is the scientific conviction that dialectical materialism is the road to truth and that its method can be developed, expanded and defended only along the lines laid down by its founders.56
In this sense, the members of the Frankfurt School were orthodox Marxist theoreticians, but their aim was to broaden the Marxist critique that hitherto treated philosophy, politics, and society as mere symptoms of the class economic struggle. Throughout their careers, the members of the School defined themselves in opposition to what they took to be empiricism and positivism. The verifiable theories of positivism would only confirm the surface phenomena of society; what was needed was critical insight to expose the façade that mesmerized the positivist.
By 1930 the focus had shifted to this project, the broadening of the Marxist critique, under a new director, Max Horkheimer. By supplementing the Marxist material and economic analysis with the cultural and psychological criticism of society the theorists of the Institute sought to account for the failure of the communist revolution despite the crises in capitalism of the First World War and the Great Depression. To explain the proletariat's failure to assume its historical role, Lukács had proposed the notion of class consciousness in the subjunctive mode, as it were.
Proletarian class consciousness is not the empirical consciousness of individuals or groups but rather what that consciousness of the proletariat would be if it could grasp its class interest and its historic role. The absence of proletarian class consciousness is blamed on the reification of consciousness.57
The central theme of the work of the Institute became the elucidation of the Marxist theory of alienation, based on the notion of reification—the idea that within capitalist societies, the relationships among human beings had taken on the form of the relations among things. This elucidation was embodied in a total cultural critique of the superstructure of society, encompassing art, music, psychology. It is sometimes said that the Frankfurt School, along with György Lukács, attempted a kind of Reformation of Marxist theology.
In addition to Horkheimer—an autocratic and tactically adept administrator—the other driving intellectual force was his close friend, Theodor Adorno, brilliant, immensely prolific, and a passionate critic of modern art and music (especially jazz) as well as of politics. Associated with these two, at various times, were Walter Benjamin, Erich Fromm, Herbert Marcuse, Franz Neumann, Friedrich Pollock, and Otto Kirchheimer. Although the Jewish background of each of these varied, some elements of traditional Judaic thought—a commitment to social justice; a utopian messianism and attachment to a vision of a world emancipated from the bondage of law; and a self-conscious affinity for ethical concerns—figure in virtually all the work of the School.58 Assimilated and yet marginalized in German society, saturated in high German culture and yet genuinely cosmopolitan, Marxist-Leninist in orientation and yet acutely aware that fascism was swelling with mass proletarian support, these writers provided a serious intellectual underpinning to Weimar revolutionary theory and brought this theory within the sheltering respectability of one of Germany's most prestigious universities. Their members were prominent targets for the Nazis, who closed the Institute in March 1933. Benjamin went to Paris, and probably committed suicide in 1940 after a failed attempt to emigrate. Neumann went to London.59 But most went to the United States.
In America, the school's most powerful members, Horkheimer and Adorno, were shrewd as well as committed; for the word Marxism they had invented the term critical theory; in place of capitalism they used the phrase forces of domination with such success that in 1934, Nicholas Murray Butler, the far-from-radical president of Columbia University, agreed to support the affiliation of the Institute with the University and to locate it in a Columbia building. Horkheimer and his colleagues were, Butler was told, “on the liberal-radical side.” Indeed they were: in 1939, Horkheimer wrote, “no one can ask the émigrés to hold a mirror up to the world that has produced fascism in the very place in which they are being offered asylum. But those who do not wish to speak of capitalism should be silent about fascism,” a piece of advice that we can be thankful was ignored by Franklin Roosevelt.
After the war, Horkheimer and Adorno returned to Germany. In the fall of 1951, the Institute for Social Research was reopened in Frankfurt, and in that year Horkheimer was also appointed rector of the University there. Adorno went back to Frankfurt in 1953 and was appointed to a chair in philosophy and sociology established as compensation for the expulsion of scholars by the Nazis. He never returned to the United States, and in 1955 he became a German citizen again.
Today the legacy of the early Frankfurt School is in evidence as much in the work of the American critical legal studies group as in the Institute's leading contemporary philosopher, Jürgen Habermas (who has recently been at pains to repudiate the critical legal studies movement).60Whereas Habermas tends to emphasize Horkheimer and Adorno's arguments about individual autonomy in a conformist society, the ambivalent inheritance of the Enlightenment and its instrumental rationality, as well as the Americanization of German culture that has occurred since the first period of the Frankfurt School's work, the American critical theorists appear more attracted by the Frankfurt School's blending of psychoanalysis and sociological Marxism, which produces a “total social critique” that unmasks the law as a tool for capitalist and elite domination, and exposes, so we are told, the vast self-deception of liberal political society.
The Frankfurt School, however, did not attempt a Reformation with respect to the Marxist view of law; indeed, with the exception of Franz Neumann and Otto Kirchheimer the School showed little interest in questions of jurisprudence. For the members of the School, as for the communists of Weimar, law was a simple mask for domination, a by-product of the class struggle.61 This orthodox legal nihilism was largely accepted by otherwise reform-minded Marxists of the School.62 By unequivocally equating the formalistic, coercive character of the law with bourgeois class interests and bureaucratic authoritarian rule, the Frankfurt School was unprepared for the Nazis' abandonment of rigid legal protocols in favor of undefined, “soft” discretionary rules. Kirchheimer speaks best for this attitude, which may be said to present the third alternative approach to jurisprudence in the Weimar Republic, opposed to parliamentarianism and fascism.
In Kirchheimer's “The Socialist and Bolshevik Theory of the State” (1928), one reads a ferocious Marxist attack on Weimar parliamentary ideology that is nevertheless thoroughly redolent of Carl Schmitt's thought.63 Kirchheimer had been a student of Schmitt's; indeed “The Socialist and Bolshevik Theory of the State” was originally part of Kirchheimer's dissertation, written under Schmitt. The basic flaw with liberal democracy, Kirchheimer writes, is its refusal “to decide”; by compromising with its bourgeois political foes, the social democrats of the Weimar state blur the true nature of politics, which is class conflict. Weimar is unable to act ruthlessly, in pathetic contrast to the Bolshevik liquidation of class enemies in Russia. In Kirchheimer, Schmitt's friend/enemy distinction is applied to the conflict between working class and capitalist class. The refusal to write this basic enmity into law reflects Weimar's greatest error. Lenin is lavishly praised for “a doctrine of unmitigated, all embracing struggle.” By contrast, Weimar is “a shell of a state… something less than itself” because it continues to tolerate, and even debate with, its enemies.
Kirchheimer emphasizes three other points: first, “[o]f fundamental importance for every political theory… is to what extent it takes account of, and admits into its texture the principle of emergency.”64
Soviet strategists understand the centrality of the emergency and, faced with internal and external threats, are ready to act ruthlessly against their enemies without qualms about establishing a dictatorial regime as a way of undertaking the crucial task of integrating their supporters according to a set of far-reaching shared ideals.65
Second, the Bolsheviks have been able to portray convincingly the myth of world revolution, which both inspires the working class and clarifies the nature of the struggle. Soviet myth making is far more effective than parliamentarianism's “medley of economic development and democracy, of majority vote and humanitarianism.”66 Finally, revolution is the existential decision, the defining constitutional moment. Revolutionary societies have the right to depict their opponents as “alien” and as “infidels” who must be destroyed. Kirchheimer admires Lenin for emphasizing the necessity of an ultimate and annihilating battle between socialism and capitalism. In this essay, 67 as well as the later “Weimar—And What Then?”68 he fairly pants with praise for the Soviets who crush their enemies instead of arguing with them.69
Kelsen is also a target for Kirchheimer. When Kirchheimer berates the Weimar constitution because it sacrifices its will and substance in favor of formalistic institutions, when he claims that the parliamentary state “tends to disappear behind its own legal mechanism,”70 he is faulting Weimar for achieving precisely the goals Kelsen sets for the State. Because Kelsen treated sovereignty as a ghost, the politics of class compromise result in the “impossibility to find, in our age of formally democratic structures aiming at social equilibrium, a satisfactory answer to the question of who is the wielder of sovereignty, that is, who makes the actual decision in the conflict situation.” Whereas parliamentary democrats take it as a major achievement of their ideology that it can transmute difficult and potentially deadly political disputes into peacefully resolved legal ones, Kirchheimer contemptuously calls this an attempt to “juridify” conflict. A writer so attracted to violent and final conflict doubtless hoped that the emergency that he believed Weimar to be incapable of handling would be one, at least in part, of his own making.
Far from pluralism, Kirchheimer yearns for a purifying solidarity that has found expression in our own times in the Khmer Rouge campaigns in Cambodia and the Cultural Revolution in China. For Kirchheimer, the cultural ethos becomes the constitutional ethos. As there must be a commonly shared cultural ethos in order for the State to achieve unity, so the constitutional ethos spreads to every aspect of cultural life. The consensus that emerges from the defining decision of revolution (Kirchheimer calls it the “creative act of revolution”) not only determines the fundamental law of the State, but also specifies policy choices and even the form of much everyday life. Because values correspond to the social context, a truly homogeneous social order will result in a cultural, moral, and social homogeneity. Only this conformity is capable of producing the necessary strength to deal with the emergency situation.
Kirchheimer praises the Bolsheviks for seeing and, unlike the liberal parliamentarians, for saying that law is no more than a political instrument to be used to discipline those who have yet to accept the values of the community. Because the decisions taken on behalf of that community must, in the case of the exception, be normless, the distinction between enforcing the values of the community and mere physical coercion is erased. Even compliance cannot be anticipated when the dictatorship governs according to exigency only. Law and force become the same thing. Lenin puts this forthrightly: “The court is not to abolish terror… but it should make it understandable and should elevate it to a legal rule, as a matter of principle, clear-cut, without hypocrisy and without embellishments.”71
Because legality equals social justice, there is no distinction between the legitimacy and the justification of a legal rule. The arbitrariness and radical discretion imposed by the exigency—which amounts to what can be justified by events—becomes the rule. In Kirchheimer's description of an authoritarian socialist alternative, the rule of law is reduced to nothing more than what those with power decide. “The Socialist and Bolshevik Theory of the State” argues
that whereas the explosion of legal instruments (in the form of new labor and social welfare courts, for example) in the West is expressive of democracy's anti-political refusal to make a decision in favor of a set of common interests and values… [l]aw in the Soviet Union is directly linked to the Communist Party's program and is made, as Lenin notes, “an instrument for education and for imparting discipline”… [Thus] the Bolshevik legal system is based on ever-changing “temporary law.”72
Kirchheimer approvingly reports that in the Soviet Union law had become “so dependent on the government objectives at any given time that the suggestion even was made to limit the validity of the new Soviet Civil Code to only two years.”73 In any case, what such a system aims at is not the application of formal law, but rather a judicial system of the appropriate revolutionary consciousness so that each situation is treated in a way that is plainly adapted to the mores of the socialist community.
This union of cultural and constitutional ethos divided fascism and communism from parliamentarianism. In 1939 Kircheimer bewilderedly wrote that “the attempt of the [fascist] legislature and the judiciary to use the criminal law to raise the moral standards of the community appears, when measured by the results achieved, as a premature excursion by fascism into the field reserved for a [socialist] society.”74 But by 1941, he conceded that the Nazis had “closed the gap which, under the liberal era, had separated the provinces of law and morality.”75 We are inclined to forget that, until the mid-1930s, liberal parliamentarianism, not fascism, was the principal target of communists. In the chapter “Elements of Anti-Semitism,” for example, in the Dialectic of Enlightenment by Adorno and Horkheimer, the authors had even concluded that “the German fascists were not anti-Semitic but were liberals who wanted to assert their anti-liberal opinions.”76
The brief Weimar period from 1919 to 1933 has often been studied as a textbook case of state formation in times of economic and political crisis. This discussion of various law professors active in that period has aimed to provide a survey of the three principal alternatives in play at the time. All of those persons discussed above were, in one way or another, concerned with the problem of how to achieve legitimacy for the new German state. So long as the ideological valence of the new nation-state form lay undecided, in any state where these alternatives contended on roughly equal terms there could be no stable constitutionalism for the State. Unlike the forms of the State in earlier periods, the nation-state requires an ideological shadow before it can come to life. When it acquires this shadow, it is a formidable strategic archetype, as the Nazis and the Soviets, no less than the liberal democracies, demonstrated.
The Weimar experience thus provides a national microcosm of an international phenomenon, the unstable competition among ideological forms of the nation-state that occurred in the aftermath of Versailles. Parliamentarianism, fascism, and communism contended in every major state, although in none were these forces so finely balanced as in Germany. Just as there could be no peace within Germany until this competition of values was settled for the German state, so also there could be no peace among states until the same question was answered for the society of states. It was necessary to determine which of the three putative ideologies of the nation-state would achieve legitimacy because each of these ideologies contended on the level of legitimacy: that is, each offered a standard by which the promise of the nation-state to enhance the welfare of the nation would be judged. Each form attacked not merely the policies of its competitors but their very right to govern, even to participate in political life. Normal politics could not take place until this fundamental question was resolved.
Many readers will recall that when Hitler accepted the surrender of France in 1940, he insisted that the signing of the articles take place at Compiègne, in the same railroad car where German generals had been forced to surrender in 1919. But few are likely to remember that in 1919, at Clemenceau's insistence, the Treaty of Versailles was signed in the Hall of Mirrors because this was the place where, in 1871, Bismarck had had William I proclaimed ruler of Germany, the first nation-state in Europe.