Dictatorship

Foreword to the Second Edition (1928)

Attached to this second edition of the book is a discussion of the dictatorship of the president of the Reich according to Article 48 of the Weimar Constitution. Apart from some insignificant changes and a supplementary section on the so-called 'law of implementation' [Ausführungsgesetz] of Article 48, this discussion is identical with the report I delivered in April 1924 in Jena at the meeting of the German Constitutional Jurists, side by side with a report given by my esteemed colleague, Professor Ernst Jacobi from Leipzig. W. de Gruyter, who published the proceedings of this meeting (Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer, 1: Der Deutsche Föderalismus: Die Diktatur des Reichspräsidenten, Berlin/Leipzig, 1924; keynote presentations by Gerhard Anschütz, Karl Bilfinger, Carl Schmitt and Erwin Jacobi, pp. 60-104), has kindly allowed republication. For technical reasons related to the production of this second edition, the text of the first edition had to remain unchanged; in consequence the appendix had to be incorporated after the index of subjects. Hopefully the detailed table of contents will compensate for the lack of an index of subjects.*

Regrettably, there is no scholarly critique of the first edition, to which the second would have responded. Some general praise, marginal recognition or tacit borrowing of the concepts elaborated there, and a few sardonic comments in the Zeitschift für öffentliches Recht - this is all that academic circles have so far contented themselves with. There is, however, an exception, which is of particular interest on account of the academic importance of its author; and it concerns a particular problem raised in this examination, namely the interpretation of the phrase höchstes Regal [supreme prerogative] in the agreement between the emperor and Wallenstein at the second general council of 1632 (p. 174] in this volume). Ulrich Stutz has demonstrated in the Zeitschrift der Savigny Stiftung (Kanonistische Abteilung, 12: 1922, pp. 416ff.) that the ius reformandi can be understood as 'supreme prerogative' [höchstes Regal]; in the next volume of the same journal Johann Heckel provides even more examples of the linguistic use of that phrase and its meaning (13: 1923, pp. 518-22). I do not deny that, in different contexts, the phrase 'supreme prerogative' can also mean ius reformandi, I only claim that it did not have this content always, or exclusively. What matters here is what it meant in the agreement of 1632: '(5) He receives from the conquered lands the highest kind of royal rights in the Reich as an extraordinary compensation.' A phrase like 'supreme prerogative', 'best prerogative', 'most precious and perfect gem [Kleinod]', and so on (for which see Heckel, p. 532) was a baroque commonplace bearing no exclusive meaning. Furthermore, as the ecclesiastical sphere was clearly separated from the worldly sphere in the seventeenth century, a 'supreme prerogative' was possible in each. In the agreement with Wallenstein no political interest in ius reformandi is in evidence. The perception that the 'supreme prerogative' is identical here with the office of the prince elector [Kurwürde] is also an effect of linguistic usage at that time. Furthermore, in the context of the rewards listed, it makes perfect sense to understand the phrase as an 'extra reward', appropriate to the situation of 1632.

My examination of the dictatorship of the Reich's president according to Article 48 of the Weimar Constitution is based entirely on the historical and constitutional investigations presented in this book. I am sceptical about whether it is academically fruitful, or even permissible, to discuss such a difficult and far-reaching problem like the correct interpretation of Article 48 outside the historical and systematic context of a democratic theory of the constitution. In any case, the rebuttal of such an established view requires investigating this context. Unlike the book on Dictatorship, this discussion of the dictatorship of the Reich's president has been reviewed and critically commented upon more often. But even the two authors who have published extensive counter-arguments - H. Nawiasky in Archiv für öffentliches Recht ', New Series 9.1, and Richard Grau, both in his report at the 33rd meeting of German Jurists [Deutscher Juristentag] and in Gedächtnisschrift für Emil Seckel (Berlin, 1927, pp. 430ff.) - do not deal with basic principles of constitutional theoory. They concentrate on the meaning of individual concepts, oppose my interpretation of the history of origins,1 and produce a certain 'atmosphere' rather than sticking to the arguments: they write in a liberal-democratic [rechtsstaatliche-liberal] atmosphere that mistrusts dictatorship. Rumor dictatoris iniucundus bonis [the news of dictatorship is unpleasant to the good people]. The kernel of their argument remains that the 'constitution is inalienable' [unantastbar]; their doctrine calls itself a 'theory of inalienability' [Unantastbarkeitslehre]. Such phrases and trains of thoughts presuppose a wholesale ambiguity of the concept of a constitution, under which the current theory of the constitution suffers. The constitution is identified with each of its 181 single articles. It is even identified with the law facilitating amendments to the constitution, which was passed in accordance with Article 76 of the Weimar Constitution. A constitution is each single constitutional statute [Verfassungsgesetz]; and a constitutional statute, according to the 'formal' understanding of statute or law [Gesetz], is a statute that can only be changed under the restrictive requirements of Article 76! The fact that the constitution is inalienable only means that every particular legislation of the constitution is, for the dictator, an unbridgeable obstacle in the fulfilment of his duty. In this way the meaning and purpose of dictatorship - the protection and the defence of the constitution as a whole - will be violated and turned into its opposite. Every single constitutional provision becomes more important than the constitution itself - the sentence 'the German Reich is a republic' (Article 1, §1) and the other sentence, 'the official is permitted to access personal details' [Personalnachweis] (Article 129, §3), are both treated as the inalienable parts of the constitution. Such absurd consequences resulting from an ambiguous understanding of the constitution demonstrate how necessary and unavoidable it is to discriminate between the numerous 'formal' constitutional legislations. If one attempts to isolate an inalienable 'organisational minimum' within the constitutional regulations, then a few formal hints (such as that Article 48 refers to Article 50) will certainly not clinch it.

Without a thorough examination of the history and theory of the constitution, it is not possible today to treat in scholarly depth either such a problem of interpretation or the general subject of dictatorship. A strange phenomenon, the same under different shapes, occurs in almost every European country. It occurs in the guise of an open dictatorship or as a use of enabling laws [Ermächtigungsgesetze]; in seemingly legal breaches of the constitution - that is, breaches that protect the prescribed forms of an amendment to the constitution; in the legislation of a parliamentary majority, and so on. It is not a 'positive' thing simply to ignore it. The study of public law is compelled, like any other, to pay heed to the problems of its time. Hence the present attempt justifies itself by examining the problematic of dictatorship across a few centuries. Sure enough, prognosis is an altogether different matter. I have refrained from attempting one, although some precedents already exist. For instance Erwin von Beckerath, in the conclusion to his clear and prudent book Wesen und Werden des faschischtischen Staates (Berlin, 1927, pp. 154-5), asserts that, along with the increasing concentration of economic and political power in the hands of a few people, the ideology of the majority will be dissolved and, if the economic and political tensions in Europe increase ('as can be predicted'), 'it can be assumed that, along with the transformation of political ideology, the concept of the authoritarian state will gain territory again within western culture'. Shorter in form and content, the prophesy about Mussolini made by H. Nawiasky in Munich, on 18 February 1925, runs in the opposite direction: 'Mussolini's downfall is just a question of time' ('Die Stellung der Regierung im modernen Staat', in the collection of essays Recht und Staat in Geschichte und Gegenwart, Tübingen, 1925, p. 23). Admittedly anything in our sublunar world is, in the long run, only 'a matter of time', and therefore the risk one runs into by making such prophecies is not very serious. Nevertheless I prefer not to get involved in them.

Concerning the development of the idea of dictatorship, remarks can be found at page 125 (the concept of dictatorship today,...