restricted access Three: Gerhard Anschütz

From: Weimar

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three Gerhard Anschütz introduction Walter Pauly Gerhard Anschütz did not owe his standing in the state law theory of the Weimar period to conceptions of state and constitutional theory, as did Hermann Heller, Rudolf Smend, and Carl Schmitt, nor to a position on state law grounded in legal theory, as did Hans Kelsen; his prominence was due instead to doctrinal works on existing public law. He succeeded in writing the classic commentary on the Weimar Constitution, one of the few works that went to fourteen editions in the Weimar Republic, and with his temporary colleague on the Heidelberg faculty, Richard Thoma, edited the two-volume Handbook of the German Law of the State [Handbuch des deutschen Staatsrechts], a unique encyclopedia that collected pieces by numerous scholars. Citations from both works continue to this day to carry great weight. Anschütz had already become a scholarly authority during the Empire; his appointments in Tübingen (1899), Heidelberg (1900), Berlin (1908), and, at his own wish, his return to Heidelberg (1916) document this, as do his assumption of Georg Meyer’s successful textbook on German constitutional law and the inclusion of his article on German constitutional law in the Encyclopedia of Jurisprudence. He began publishing in 1891, at the age of 24, with a dissertation written under Edgar Loening in Halle: Critical Studies on the Theory of Legal Propositions and Formal Law [Kritische Studien zur Lehre vom Rechtssatz und formellen Gesetz]. It was—like his later lecture , “Theories of the Concept of Legislative Power,” given following his 128 Habilitationsschrift—a contribution to the concept of the “statute,” and thus to the scope of parliamentary cooperation in the process of creating law. According to Anschütz, for acts interfering with the freedom and property of individuals, the monarchic executive needed statutory authorization and to that extent the agreement of parliament—the “provision of legality” [Vorbehalt des Gesetzes]. While the dissertation was still clearly influenced by the conceptual legal method of Carl Friedrich von Gerber and Paul Laband—its construction was largely conceptual—the second study focused on the text and genesis of the relevant constitutional norms. Here Anschütz changed his position from a constructivist legal positivism [Rechtspositivismus] to a statutory positivism [Gesetzespositivismus] based on an historical and genetic understanding of norms. His commentary on the Prussian constitutional charter that appeared in 1912 also followed this method and thus became in many ways more traditionalist than had it followed a doctrinal approach guided by von Gerber’s and Laband’s conceptual legal method. Thus Richard Thoma1 praised the fact that at least in part it took the rights of Prussian citizens seriously as individual rights but at the same time criticized Anschütz’s argument that these rights did little more than mirror the provision of statutory legality. Anschütz’s strict statutory positivism placed him in conflict with other leading contemporary scholars of the law of the state. Unlike Paul Laband, he denied the existence of a legal resolution of a conflict where monarch and parliament could not agree on the budget, stating: “Here the law of the state ceases; the question of how to proceed when no budget exists is not a legal question.”2 He accused Rudolf Smend of confusing law and politics, of interpreting the constitution with his integrationist approach—if not counter to, then at least far beyond the text.3 He criticized Erich Kaufmann as a natural-law thinker for seeking to bind the legislature to the principle of equality, although this was not stated explicitly in the constitution.4 He also questioned the doctrinal conclusions Hans Kelsen had drawn from his legal theory as lacking historical understanding.5 He criticized as unfounded in the text the substantive limits on constitutional amendment asserted by Carl Schmitt as a consequence of his concept of the constitution.6 Anschütz’s statutory positivism placed constitutional law within narrow bounds. The field of constitutional policy, to which he also devoted himself throughout his lifetime, began for him beyond these bounds. Impressed by southern Germany’s social structure and mentality that he had come to know and appreciate in Tübingen and Heidelberg, the Prussian Anschütz developed increasingly in the course of the Empire into an advocate of the democratic idea. In his writings on constitutional policy during the First World War, he demanded the elimination of the three-class GERHARD ANSCHÜTZ 129 electoral system in Prussia and the introduction of the parliamentary system...


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