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five Heinrich Triepel introduction Ralf Poscher Heinrich Triepel’s significance for the law of the state of the Weimar Republic was the result not only of his scholarly undertakings but also of his practical efforts. Born on 12 February 1868 in Leipzig, Triepel completed his studies in Freiburg and Leipzig and, with the support of his teacher, Karl Binding, progressed rapidly through the early stages of his academic career. In the winter semester of 1900–01, he succeeded Gerhard Anschütz in Tübingen as professor of the general and German law of the state, international law, and the theory of the state. After appointment at Kiel in 1908, he became a member of the law faculty in Berlin in 1913. Immediately after the war, Triepel devoted great effort to strengthening the discipline of public law institutionally. In 1920, together with Otto Koellreuther, he became publisher of the Archive for Public Law [Archiv für öffentliches Recht], thus ensuring continuity for the forum founded by Paul Laband. In 1921, thanks to Triepel’s initiative, state law theory formed a topic at the German Jurists’ Congress [Deutsche Juristentag] for the first time. Triepel himself gave the inaugural speech, on the distinction between statute and regulation.1 Evenmoreimportantthantheinaugurationoflawofthestateasadiscrete field at the Jurists’ Congress was the founding of the Association of German Teachers of the Law of the State [Vereinigung der deutschen Staatsrechtslehrer]. With this, Triepel was responding to the wishes of other colleagues as well. 171 172 HEINRICH TRIEPEL The association was intended neither to be a trade association nor to have a political agenda, but to “provide the basis for a working group that was urgently desired under the exigencies of the present and was possible despite antagonisms of scholarly method and political viewpoint.”2 From its first meeting in 1922, the association did full justice to the role Triepel intended for it.3 Its meetings were important stimulus for the Weimar law of the state. Thus presentations by Kaufmann, Smend, and Heller at the 1926 and 1927 meetings took the struggle over methods and aims to new heights. It is due not least to debates mandated by the association’s charter on set topics—in which Triepel was consistently one of the most active participants4—that the minutes of these meetings are today among the most lively documents of Weimar state law theory. I Triepel first gained lasting international recognition in the field of international law through his 1899 work International Law and National Law [Völkerrecht und Landesrecht]. Developing the consequences of the concept of sovereignty, Triepel depicted the relationship between international law and national law as a relationship between independent legal systems. He thus founded the so-called dualist theory, which he defended in 1923 against monism, which Hans Kelsen especially advocated.5 Although Triepel went on to be active in the field of international law after 1908 as publisher of the respected Recueil Martens, his interests gradually returned to the law of the state, with which he had already dealt in his dissertation on the Interregnum. With his focus of interest, his methods also shifted. While his work on international law was still written entirely in the style of the conceptual legal tradition of Carl Friedrich Wilhelm von Gerber and Laband, Triepel developed increasingly into an opponent of positivism. This was already apparent in the subtitle of his 1907 monograph on unitary and federal elements in the Reich, A Constitutional and Political Study [Eine staatsrechtliche und politische Studie]. Besides an examination of the Constitution , Triepel offered a detailed portrayal of the historical development of constitutional reality, including an analysis of the positions of political parties . Triepel had not yet brought the law of the state and politics into an alliance . Still, this work showed Triepel’s lively historical and political interests , by no means limited to Germany, as his numerous references to Swiss and American constitutional law attest. Triepel found his lifetime subject in the federal state. He returned to these issues again and again. Even in his last year of life, he took up the subject and wrote on the federal reorganization of Germany.6 His most extensive work on state law in the Reich, Reich Supervision [Die Reichsaufsicht] of 1917, was devoted to that subject. Here, too, Triepel preceded his legal examination HEINRICH TRIEPEL 173 with a historical, comparative law investigation. He turned explicitly against the conceptual approach with which the supervisory powers of the Reich had previously been constructed. “The conceptual construct serves...


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