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epilogue The Decline of Theory introduction Reinhard Mehring Under National Socialism, the theory of the state and its law generally languished . This is evident not only among those scholars who largely clung to their pre-1933 methods and positions and attempted to stay out of politics and matters of state, or those National Socialist authors in the narrower ideological sense who sought a genuinely racist, theoretically unassuming new approach to the theory of the state and its law.1 Above all, it is evident in the state law scholars directly involved with National Socialism who continued working on the problems and theoretical efforts of the Weimar period. They —and thus also the acceptance and rejection of the Weimar jurisprudence of crisis under National Socialism—are the subject of what follows. The main participants in the Weimar struggle over methods and aims held very different attitudes toward, and suffered various fates under, National Socialism. Positivists and liberal advocates of the Weimar Constitution either resigned their professorships in 1933 (Georg Anschütz, 1867–1948), were dismissed and retreated into internal exile (Gustav Radbruch, 1878–1949), or were forced to emigrate (Hans Kelsen, 1881–1973). But even the critics of positivism and theorists of a new basis for the theory of the state and its law who pointed out the cultural, social, and political prerequisites and foundations of positive constitutional provisions held quite varying attitudes toward National Socialism. Hermann Heller (1891–1933) emigrated and died abroad in November 1933, before he could complete his Theory of the State [Staatslehre]. Erich Kaufmann (1880–1972) lost his Berlin professorship in 1934 and emigrated in 1938.2 Heinrich Triepel (1868–1946) 313 314 EPILOGUE was pensioned off in 1935. Rudolf Smend (1882–1973) had to give up his Berlin chair in 1935 to the rising SS lawyer Reinhard Höhn (born 1904) and moved to Göttingen, where he devoted himself to the history of jurisprudence . Only Carl Schmitt (1888–1985) brought his Weimar constitutional thinking regarding the state and its law into National Socialism, quickly rising to become “crown jurist.” The student generation also followed various paths. Triepel’s pupil Gerhard Leibholz (1901–82) was dismissed from a professorship in 1935 and emigrated to England in 1938. Schmitt’s student Ernst Friesenhahn (1901– 84), who, like Leibholz, later served as judge on the Federal Constitutional Court, withdrew his application for membership in the National Socialist German Workers Party (NSDAP) after June 1934, but received a professorship in 1938 nevertheless. Social Democratic lawyers and scholars such as Ernst Fraenkel (1898–75), Franz Neumann (1900–54), and Otto Kirchheimer (1905–65) held no academic positions in 1933, so we cannot speak of a formal end to their academic careers. Neumann and Kirchheimer emigrated immediately; Fraenkel continued to practice law in Berlin until 1938 and wrote the Dual State [Der Doppelstaat], the first sustained critical analysis of National Socialism. Besides Schmitt, the National Socialist theorists of the state and its law who continued the theoretical efforts of Weimar included Schmitt’s young conservative students Ernst Rudolf Huber (1903–90) and Ernst Forsthoff (1902–74), as well as Theodor Maunz (1901–93) and Reinhard Höhn. At the seizure of power in 1933, not a single professor of the law of the state was a member of the National Socialist Party; thus we cannot say that legal scholars had a particular predisposition toward National Socialism. Their motivations for later affirmation were complex and diverse. The systematic conservatism of lawyers in supporting the rulers on the basis of legality does not suffice to explain the motivations behind their sometimes enthusiastic advocacy.3 Hope for an end to the permanent crisis of the Weimar system was coupled with relief at the demise of an unpopular republic. Often, National Socialism was misunderstood to be a conservative movement. On top of everything else, the coming generation expected it to provide career opportunities and soon filled the positions of the numerous professionals driven out by the Law to Restore the Professional Civil Service [Gesetz zur Wiederherstellung des Berufsbeamtentum].4 In 1933, Schmitt moved to Berlin via Cologne. Huber (Kiel), Forsthoff (Frankfurt), and Scheuner ( Jena) received their professorships in 1933, Höhn (Berlin) and Maunz (Freiburg) in 1935. The revolutionary transformation of Germany’s political and constitutional systems was an intellectual challenge taken up enthusiastically by many. The internal development of the Third Reich, in which we may distinguish5 a formative phase that lasted until 1934, consolidation until 1938, and finally radicalization, presented...


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