restricted access Prologue: The Shattering of Methods in Late Wilhelmine Germany

From: Weimar

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prologue The Shattering of Methods in Late Wilhelmine Germany introduction Stefan Korioth The Weimar debate on the tasks, aims, and methods of the theory of the law of the state spans a discrete period in the development of public law in Germany. However, it would be simplistic to seek in Weimar alone the factors that triggered this debate; the Weimar discussion took up issues and provided answers to questions that were of longer standing. Just as the problems of the Weimar state were rooted in certain developments in the Empire , the Weimar debate had its background in the latter years of the Empire —between 1900 and 1918. Much of what developed into the principal approaches of the 1920s had already been tentatively reflected, and sometimes even tested, in individual problems of state law during those two decades. However, this prehistory of Weimar state law theory lacked clear programmatic contours and positions. Apart from attempts to further elaborate the legal positivism that had first emerged in state law theory at the beginning of the Empire, the specific character of this prehistory was to show the early beginnings of tendencies toward radical change. The latter trend tended to undermine the foundations of the constitutional positivism that had dominated state law theory almost unchallenged up to 1900. This happened gradually, often unnoticed, sometimes even by the authors themselves . No express questioning or radical critique of positivism took place; the fundamental debate on redirecting state law theory was reserved for Weimar. The history of Weimar can be understood only against the background of what was gradually being called into question. Therefore, the subject of 41 the following overview is, first, the basics of state law positivism. Only after this can we ask how, after 1900, the familiar paths of state law reasoning were abandoned and why state law positivism eroded. I State law positivism began to develop in 1850 and achieved its dominant position around 1880. With the failure of the revolution of 1848, bourgeois hopes for a united, democratic German nation-state were shattered. Germany sank back into small monarchical states, linked loosely by the German Union [Deutscher Bund]. The bourgeois political liberalism of the first half of the century became economic liberalism; bourgeois interests no longer sought political participation in the state, but freedom from the state—particularly freedom of economic action. Two works by the civil law scholar Carl Friedrich von Gerber (1823–91) contain terms that state law positivists elaborated into an entire school of thought. Disappointment in the political situation, as well as the inclination to make peace with it, is mirrored in Gerber’s postulate that politics is “not the purpose, but simply the material”1 of the law of the state. This postulate defines the tasks, as well as the limitations, of state law theory: to exclude the “purely political aspects” of the state while including its “legal aspects.”2 The theory of the law of the state was not intended to mirror political hopes—that is, to serve as a scholarly instrument of legal policy, as was often the case in the law of the state before 1850—but rather to begin to address the positive law of the state. This can be seen as the legal correlate to the bourgeoisie’s acceptance of the political status quo in the years after 1850. Gerber’s terminology refers to the manner in which the theory of the law of the state can do justice to its new task: the “creation of a theoretical system”3 through formal “legal construction”4 that would learn from and match the conceptual clarity achieved in private law. Only this could be the foundation of the “theoretical autonomy”5 of state law. The finest hour of this program, soon to be called “legal method” by its supporters, began with the formation of the Empire between 1867 and 1871. The bourgeoisie again proved incapable of creating a state responsive to its own interests; the leading role in creating the Empire was taken by the individual monarchic Länder. But German national unity was nonetheless achieved; the bourgeoisie quickly adapted to the new state, and the Empire ’s early decades were relatively quiet politically. Gerber’s call for a systematic ordering of positive law and for the abolition of wishful political thinking from state law theory now met with strong approval, especially in the face of the need to interpret the Empire’s constitution, the first codi- fication of state law...