restricted access Seven: Rudolf Smend

From: Weimar

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seven Rudolf Smend introduction Stefan Korioth Rudolf Smend (15 January 1882–5 July 1975) was born into a family of lawyers and theologians. His scholarly work, though of comparatively limited volume, was crucial to the development in Germany in this century of the theories of the state, broadly conceived, and of the law of the state, conceived as a matter of doctrine. The main themes of Smend’s work were legal and constitutional history, state and constitutional theory, and finally, especially after 1945, Protestant church law and the law of church and state. Smend focused on the fundamental concepts of state and constitutional theory; he was less concerned with doctrinal, systematic ventures into positive law. At the core of his work was the “theory of integration,” created in the 1920s. This theory is Smend’s own attempt to oppose a theory of state and constitution , in a very specific sense “idealistically” [geisteswissenschaftlich] and “sociologically ” oriented, to the state law positivism associated with the names of Carl Friedrich von Gerber, Paul Laband, Georg Jellinek, and Hans Kelsen. Smend’s dissertation, which he presented in Göttingen at the age of 22, elaborated the principles of Prusso-German law of the monarchic state, using as an example the Prussian Constitution of 1850; he compared it with the Belgian Constitution, which contained some of the same wording but was based on the principle of popular sovereignty. This comparative approach was already leading Smend not to limit his constitutional interpretation to the interpretation of texts and the construction of concepts but to bring in the historical and political background of constitutional law to explain the differing meanings of identical constitutional provisions. 207 208 RUDOLF SMEND In 1908, Smend completed his Habilitationsschift, an examination of the Reichskammergericht (the highest court of the Holy Roman Empire) from the perspective of legal history, in Kiel under Albert Hänel, one of the strongest critics of Laband’s positivism. Only a year later, Smend was named professor at Greifswald. This appointment was followed by chairs in Tübingen (1911), Bonn (1915), and Berlin (1922). Smend refused to collaborate with the Nazi regime, limiting his publications between 1933 and 1945 to legal history ; in 1935, he was forced to surrender his chair in Berlin and accept one in Göttingen. He worked in Göttingen until his death, serving from 1945 to 1946 as the university’s first postwar rector. From 1945 to 1955, Smend was a member of the Council of the Protestant Church in Germany [Rat der Evangelischen Kirche in Deutschland], the church’s leading body. Smend’s attempts to overcome state law positivism in the theories of the state and of state law began in the final years of the Empire. His most important work during this phase, a precursor of his theory of integration of the 1920s, was the 1916 study Unwritten Constitutional Law in the Monarchic Federal State [Ungeschriebenes Verfassungsrecht im monarchischen Bundesstaat]. Smend began by analyzing the political practice of the federal system under the Empire and discovered many elements that contradicted the norms of the Constitution of 1871. He then applied his new approach: Smend abandoned the dichotomy, typical of state law positivism, of “is” and “ought,” of constitutional reality and constitutional norms which, where the two diverged , allowed only the verdict that state practice was unconstitutional. Instead , Smend demanded that state law theory mediate between norms and reality. He believed that the views of political actors should be included in the interpretation of constitutional norms. This approach, which Smend had not yet theoretically grounded during the Empire, took issue with a type of legal thinking that reduced the constitution to the “immanent logic” of its written words. The doctrinal result of this work of 1916 lay in the development of “unwritten” federal rights and duties. These culminated in the “federal comity” [Bundestreue] that the central government and individual states owed one another even if it was not an express constitutional norm. Smend thus established a legal device with long-term effect. Even in the entirely altered context of the democratic federal state under the Basic Law of 1949, the Federal Constitutional Court [Bundesverfassungsgericht] still uses the concept “federal comity,” citing Smend’s pre-Weimar work, in treating the relationship between the federal government and the Länder. Smend’s main work is Constitution and Constitutional Law [Verfassung und Verfassungsrecht] of 1928. This work was the first comprehensive presentation of the “theory of integration.” The book and the theory are divided...


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