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Book Review
| Michael Stolleis, A History of Public Law in Germany 1914–1945, trans. Thomas Dunlop, Oxford: Oxford University Press, 2004. Pp. 504. £70 ($165) (ISBN 0-19-926936-X).
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| This book—the third in a series analyzing the history of German public-law scholarship since the seventeenth century—examines the tumultuous years 1914–1945 with such lucidity and sound judgment that it is hard to imagine it will be surpassed any time soon.. Although Professor Stolleis does not avoid moral judgments, he is much less concerned with "individual and collective attributions of guilt" (253). The historiography, he hopes, has moved into a new phase where one can now focus on "the necessarily important questions about the functioning of [the Nazi] system, its historical preconditions, and, finally, its continuities in the industrialized societies of the twentieth century" (253). Even as the constitutional structure of Germany lurched from one regime to the next over twenty years (1914–1933)—between monarchy, wartime military dictatorship, revolutionary government, parliamentary republic, and finally the "Hitler state" in all its chaos and brutality—Stolleis notes certain deeper continuities, particularly at the level of administrative law (377). Rather than think in terms of "state intervention" (indicative of the liberal concern over the boundary between public and private), German administrative scholarship increasingly focused on the state's role in Daseinsvorsorge—"providing for the basic necessities of life." Although this evolution in the nature of the state had "begun long before the First World War" (13), it would not be until 1938, when the Nazi administrative theorist Ernst Forsthoff published his Die Verwaltung als Leistungsträger ("The Administration as Provider of Services"), that this concept would become "standard" in German administrative jurisprudence (392–93). |
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This deeper evolution in administrative doctrine is ultimately overshadowed, however, by ruptures at the level of constitutional law and legal theory. The virtue of Stolleis's approach here is that he refuses to analyze the pivotal Weimar debates as disembodied abstractions. Ideas have advocates, with their own personal histories and outlooks. Even relatively unfamiliar English readers will recognize some of the leading players in this drama (Hans Kelsen for the positivists and Carl Schmitt for the anti-positivists). But perhaps Stolleis's most important insight into Weimar debates is that "[m]ethodological and political fault lines ... did not overlap" (177). Herman Heller, for example, "polemicized against Kelsen in the sharpest terms" (175) and yet like Kelsen was a Social Democrat; Heller's own methodological anti-positivism by no means put him in the same political camp as Schmitt. The ultimately important dividing line among public-law scholars, Stolleis suggests, was not between positivists who argued for a strictly normative conception of the state, and anti-positivists who saw in the state the embodiment of certain historical and political "supra-positive" values. Rather, it was over the nature of the political values to which the individual scholars were committed, regardless of their theoretical camp. Positivist scholars like Kelsen, Gerhard Anschütz, or Richard Thoma were all committed democrats who were more in-touch, at the level of their own personal politics at least, with many of the supra-positive values that would be entrenched in the Basic Law of the Federal Republic in 1949—even if its "eternity clause" (Article 79[3]) was fundamentally in contradiction with their positivism (91). On the other hand, the positivists received some measure of theoretical vindication after 1933, even if by negative example. The "Hitler state" dispensed with normativity entirely, taking Schmitt's "decisionist" theory of sovereignty to its logical extreme, which was utter arbitrariness, chaos, and state criminality on an unimaginable scale. In this way, the Nazis taught future generations of Germans what Kelsen apparently could not: that there was a political value in conceptualizing the state in normative terms and thus in establishing commitment mechanisms (courts) to enforce those norms against the momentary possessors of political power. |
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If there is one weakness in Stolleis's analysis, it is that he pays insufficient attention to positivist conceptions of separation of powers and legislative delegation. From the earliest years of the Weimar Republic, influential positivist scholars like Anschütz and Thoma supported the common practice of nearly unlimited legislative delegation to the executive. By contrast, certain moderate anti-positivists—the most important being Heinrich Triepel—argued the legislature could not transfer unchecked power to the executive without undermining the democratic character of the constitution itself. Triepel's concerns would be sadly realized in March 1933, with the adoption of the Enabling Act transfer all governing authority to Hitler as chancellor. Stolleis rightly sees Triepel as the exemplar of the finest tradition in German public-law scholarship under Weimar, citing him time and again as a key marker of important developments (see, e.g, 33, 89, 162, 179, 188, 263, 328, 418). It is thus unfortunate that Stolleis did not highlight this aspect of Triepel's thinking more distinctly. |
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This oversight does not detract, however, from the extraordinary accomplishment of this book. Balanced, thoughtful, thorough—it will be the definitive work on the topic for the foreseeable future. The excruciating detail with which Stolleis describes the "destruction of a scholarly discipline" after 1933 (Chapter 8), in which Carl Schmitt played such a central role, makes for very depressing reading indeed. Stolleis movingly concludes: "What the regime eventually did exceeded the worst fears that even the most pessimistic mind could have entertained in 1933. In the end they all confronted utter ruination" (448). So true. |
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| Peter L. Lindseth
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| University of Connecticut School of Law |
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