Carl Schmitt: Theorist for the Reich [Course Book ed.] 9781400853250

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Carl Schmitt THEORIST FOR THE REICH

Carl Schmitt THEORIST FOR THE REICH

JOSEPH W . BENDERSKY

PRINCETON UNIVERSITY PRESS

Copyright © 1983 by Princeton University Press Published by Princeton University Press, 41 William Street, Princeton, New Jersey 08540 In the United Kingdom: Princeton University Press, Guildford, Surrey All Rights Reserved

Library of Congress Cataloging in Publication Data will be found on the last printed page of this book This book has been composed in Linotron Palatino Qothbound editions of Princeton University Press books are printed on acid-free paper, and binding materials are chosen for strength and durability. Paperbacks, while satisfactory for personal collections, are not usually suitable for library rebinding Printed in the United States of America by Princeton University Press, Princeton, New Jersey

For Carmen, Karen, and Nicole

CONTENTS

PREFACE ACKNOWLEDGMENTS PART I: EARLY YEARS, 1888-1921: From Apolitical Scholar to Political Theorist ONE. Catholic Heritage, Education, and

the State Two. Political Consciousness, Democracy, and Dictatorship PART II: BONN YEARS, 1922-1928:

The Rise to Intellectual Prominence THREE. Character and Perspectives of a

University Professor FOUR. Parliamentarianism vs. Presidential

Power FIVE. Friend-Enemy Thesis and the Inviolable

Constitution PART III: WEIMAR'S FINAL CRISIS, 1929-1933:

The Theorist of the Presidential System Six. The Pouvoir Neutre as Defender of the Constitution SEVEN. Presidential Government in the Midst of Controversy EIGHT. Legality, Neutrality, and Reality: The Constitution, the Court, and the Nazis

CONTENTS

NINE. The Constitutional Dilemma and

Hitler's Legal Acquisition of Power

172

PART IV: THE NAZI EXPERIENCE, 1933-1947:

Collaboration, Repudiation, and Reckoning TEN. The "Crown Jurist" of the Third Reich ELEVEN. The Purge of an Ideological Deviant TWELVE. The Security of Silence? From Grossraum Theory to Nuremberg

195 219

EPILOGUE BIBLIOGRAPHY INDEX

274 289 313

243

PREFACE

THE life of Carl Schmitt has been marked by eminence and controversy. His public career has been distinguished by major intellectual accomplishments and recognition, but it has also been marred by political and personal crises. As a witness to some of the most decisive events in German history, Schmitt experienced the collapse of the monarchy in 1918, the turmoil of the Weimar Republic, the Nazi dic­ tatorship, and the creation of the Federal Republic. And his writings have addressed the political and constitutional issues of each of these periods. An established scholar be­ fore World War I, Schmitt reached the peak of his intel­ lectual creativity during the Weimar Republic and pub­ lished his last article in 1978. In the 1920's he emerged as one of Weimar's most influential, as well as most widely read, political and legal theorists; at that time his writings played a prominent role in the intellectual and political debates over the viability of democracy in Germany. No student of Weimar can ignore his works on the crisis of liberalism and parliamentary government, his theory of constitutional dictatorship, or his interpretations of presi­ dential emergency powers under Article 48 of the Weimar constitution. Schmitf s ideas took on particular significance when the republic faced its final crisis, brought on by the depression, a paralyzed Reichstag, and the threat of a Nazi seizure of power. As an adviser to the Hindenburg gov­ ernment, Schmitt provided the theoretical and legal justi­ fications for the presidential system that ruled Germany through emergency decrees between 1930 and 1933. How­ ever, his active support for the presidential government, his subsequent compromises during the early phase of the Hitler regime, and his reputation as the "Crown Jurist" of the Third Reich have made Schmitt the subject of consid­ erable debate for decades.

PREFACE

As the German historian Heinrich Muth noted, "He is one of the few really significant political theorists of our century, but without a doubt the most controversial." Often compared with such thinkers as Hobbes, Machiavelli, and Max Weber, Schmitt is considered by many as a man of brilliant intellect whose original ideas and incisive analyses have retained their significance in the contemporary world. In the opinion of others, however, Schmitt symbolizes the worst tendencies in German political thought. He has been described variously as a fascist, nihilist, or opportunist. Some argue that his writings were essentially nihilistic and contributed to the collapse of the Weimar Republic by cre­ ating an intellectual wasteland in which Nazism could flourish. Others go further, contending that he was a prophet of the totalitarian state whose ideas found their realization in Hitler's Third Reich. Not only has this controversy pro­ duced an extensive body of literature in Germany, but more recently scholars in England, Italy, Japan, and the United States have displayed an interest in this enigmatic jurist. Since World War II twenty books and more than three hundred articles have been published on Schmitt, and his works have been translated into nine different languages. One of the most striking features of the literature on Schmitt is that no one has attempted a systematic exami­ nation of his life and political activity. Yet there is an im­ portant interrelationship between his ideas and the chang­ ing political circumstances he confronted. In the past most scholars have attempted to understand his political stances in Weimar and Nazi Germany by reading between the lines of his published works. This in turn has encouraged writers to make sweeping, unsubstantiated, and frequently mis­ leading generalizations about Schmitfs character, political attitudes, and influence. Similarly, misunderstandings of his political philosophy and aims have tended to distort interpretations of Schmitfs writings. A detailed account of Schmitt's public life, based on unpublished as well as pub­ lished sources, is obviously needed. χ

PREFACE

I have chosen Schmitf s politics as the focal point for the present study precisely because much of the controversy surrounding him is directly related to his political involve­ ments. For it is quite evident that so long as crucial ques­ tions remain unanswered about Schmitt's political per­ spectives and activities, it will be difficult to determine his proper place in German intellectual history. From the be­ ginning it has been my intention to clarify as many of these questions as possible and thereby provide a framework for a more detached evaluation of Schmitt and his ideas. Since these ends would not have been furthered by hagiography or vilification, I have tried to avoid both. I have attempted to represent Schmitfs ideas and political attitudes as ac­ curately as possible, interpreting his life, work, and politics on the basis of what he actually stated in his writings and from the standpoint of what other available evidence in­ dicated about his viewpoints and activities. Given the con­ troversial nature of the subject, however, I remained ever aware of the need for critical evaluation of these sources. In assessing Schmitt's postwar statements and reflections, in particular, I devoted special attention to the problems presented by memory, bias, and Schmitt's desire for vin­ dication. Consequently, in many important areas my inter­ pretations contrast sharply with Schmitfs own self-image and his explanations for the political choices he made. Nonetheless, the evidence has also led me to draw conclu­ sions differing significantly from those presented by writ­ ers who have allowed Schmitfs compromises with the Hit­ ler regime to overshadow all other aspects of his life and work. My approach to this subject was best summed up in the recent comment by Wilfried von Bredow—Schmitt's work is too intelligently written and too important to be left in the hands of apologists and anti-apologists.

ACKNOWLEDGMENTS

DURING the years of researching and writing a book an author incurs many more debts than he can ever hope to repay. At best he can acknowledge the contributions of others and express his gratitude. In this regard, I would like to thank Paul R. Duggan and Paul R. Sweet of Michigan State University for their assistance during an earlier phase of my work when I was establishing the foundations for the present study. They were demanding, as well as openminded, in providing constructive criticism and I benefited greatly from their guidance and comments. I owe a special debt to Paul Sweet for originally suggesting Carl Schmitt as a subject for research and for his kind help in a variety of ways over the years. George Schwab of the Graduate Center of the City University of New York and Helmut Rumpf of the German Foreign Office deserve equal ac­ knowledgment for their encouragement and for sharing with me their extensive knowledge in the field of Schmitt studies. It is my hope that when they finally have the opportunity to read this book, they will feel that their ef­ forts were worthwhile. The assistance of Gary Ulmen of Columbia University was crucial in bringing this work to fruition and for this I am especially grateful. Well-deserved recognition also belongs to my friend and colleague James T. Moore, who read major segments of the manuscript and was perhaps my most demanding and helpful critic. Throughout the years that I imposed so often upon his time and patience he demonstrated the endurance of Job; he certainly listened to more about Carl Schmitt than any­ one would care to hear. I am also indebted to the following individuals for grant­ ing interviews and providing information: Carl Schmitt, Riidiger Altmann, Mrs. Edith Gurian, Robert M. W. Kempner, Heinrich Popitz, Charles Robson, and Ulrich Scheu-

ACKNOWLEDGMENTS

ner. On several occasions Piet Tommissen of the Economische Hogeschool Sint-Aloysius, Brussels, furnished copies of important documents and publications I was un­ able to locate elsewhere. This book could not have been written without the as­ sistance of several institutions. Support for extensive re­ search in Germany was provided by a Fulbright scholarship and the Alexander von Humboldt Foundation. My work was facilitated by various archivists in the Bundesarchiv, Koblenz; the Institut fiir Zeitgeschichte, Munich; the Geheimes Staatsarchiv, Berlin; and the Document Center, Ber­ lin. A research grant from Virginia Commonwealth Uni­ versity allowed me time to write part of the manuscript. Particular acknowledgment must be given to members of the Inter-Library Loan Department of the James Branch Cabell Library at Virginia Commonwealth University for their outstanding work over a period of years. It would be difficult to find a more competent, efficient, and helpful staff. I would like to express my sincere appreciation to Miriam Brokaw of Princeton University Press for the professional attitude she displayed in dealing with this work. A note of thanks should also go to my colleagues in the History Department of Virginia Commonwealth University for their moral support, and to Wanda Clary, who did such an ex­ cellent job of typing the manuscript. From the very beginning my wife, Carmen, played a decisive role in this study and she deserves much of the credit for its completion. Her technical assistance with proofreading and corrections, and more importantly her patience, understanding, and encouragement were only a small part of her actual contribution. My most personal expression of gratitude is reserved for her and my daugh­ ters, Karen and Nicole. While I did the researching and writing, they really made all the sacrifices.

PART I EARLY YEARS, 1888-1921: FROM APOLITICAL SCHOLAR TO POLITICAL THEORIST

ONE

CATHOLIC HERITAGE, EDUCATION, AND THE STATE

THE tranquil setting of Carl Schmitt's birth revealed little of what the future held for the man and his country. When Carl was born on July 11, 1888, the seemingly incessant process of German industrialization had just begun to make its mark on his birthplace of Plettenberg, a small town in the heart of the Sauerland. With the Rhine valley to the west and the highly industrialized Ruhr Basin to the north, the Sauerland protected its small towns and villages within the bosom of its mountain forests. A glance at the beautiful countryside in which Plettenberg is situated would prompt the most convinced materialist to reflect upon the romantic perception of life. Even today the town's halcyon environs instill a sense of nostalgia for a simpler age. Although nature had been beneficent, history would not be so kind. The first sixty years of Schmitt's life were tur­ bulent ones. In retrospect, he would write: "I have expe­ rienced the jolts and slashes of the reins of fate / Triumph and defeat, revolution and restoration."1 It would be a fate inextricably tied to the most volatile period in German his­ tory. For behind the idyllic facade of its natural beauty the germ of future upheaval was already planted in the Ger­ many of Schmitf s youth. The nationalistic zeal of the age, permeating the minds of a majority of Germans, was coun­ terbalanced by the disruptive effects of new and age-old diversities. Germany had reached the zenith of her power and prosperity; most Germans took pride in the great ac­ complishments of the nation; they were easily seduced by 1 Carl Schmitt, "Gesang des Sechzigjahrigen," in "Der Fall Carl Schmitt: Charaktermord," Der Fortschritt, 4 (January 25, 1952).

PART I

chauvinistic slogans. With the exception of the socialists and the more progressive-minded in the liberal and Cath­ olic parties, the authoritarian state was accepted as almost a natural condition. But this nationalism and respect for the state did not eradicate the traditional sectarian and regional antagonisms which for generations had separated Catholic from Protestant, and Prussia from the rest of Ger­ many. Recent political developments following unification and industrialization had only contributed further to this divisiveness. The new forces of liberalism and socialism now challenged not only conservatism and Christianity, but each other as well. The homogeneity Schmitt would later view as essential to any democracy was absent in the Wilhelmine Reich, while the same pluralistic forces he would criticize in Weimar had become firmly entrenched. Schmitt himself was a child of these conflicting currents. Although he became a nationalist who always displayed considerable deference for the authority of the state, his identity was conditioned by a distinct sectarian and re­ gional heritage. Born into a lower-middle-class Catholic family of modest means, Schmitt had little in common with the Protestant Prussian ruling class. By tradition and tem­ perament he was a Rhinelander. Introducing himself to Ernst Niekisch, Schmitt remarked, "I am Roman by origin, tradition, and right."2 Indeed, there was an element of truth in this self-characterization. Short and vivacious, he appeared far more Latin than Germanic. His close friend Franz Blei was impressed by the French air about Schmitt.3 Both branches of Schmitfs family had, in fact, recently migrated from the Moselle valley. The maiden name of his mother, Louise, was Steinlein, a name indigenous to that region; the family still had French-speaking relatives in 2 Ernst Niekisch, Gewagtes Leben: Begegnungen und Begebnisse (Cologne, 1958), p. 242. 3 Franz Blei, "Der Fall Carl Schmitt, Von einem, der ihn kannte," Der Christliche StSndestaat (December 25, 1936), p. 1220, and "Ein deutsches Gesprach," Neue Schweitzer Rundschau (July 1931), p. 519.

EARLY YEARS, 1888-1921

Lorraine. Over the years, Schmitt would speak of the Mo­ selle valley as though he had been reared in that setting. Moselle wine was always his favorite, and he would make references such as "my nature is slow, silent, and easy­ going, like a still river, like the Moselle."4 Perhaps this cultural identification also accounted for his ability to feel at home in Italy and Spain, to which he paid visits through­ out his life. Ever since their incorporation into Prussia in 1815, Rhen­ ish Catholics had resisted assimilation. Suffering various forms of discrimination throughout the nineteenth centuiy, culminating in the Kulturkampf, Catholics continued to view themselves as an oppressed minority. They jealously de­ fended their cultural and religious autonomy against the power of the Prussian state.5 And family tradition had kept the Schmitts at the heart of the sectarian struggle. For gen­ erations they had been staunch defenders of the faith, with close ties to the clergy. Carl's father, Johann, remained an earnestly loyal and lifelong member of the Catholic Center Party. Three of Carl's great-uncles were priests who had been involved in the Kulturkampf, and at one time the family expected the young Carl to enter the priesthood. Rein­ forcing this alienation was the numerical preponderance of Protestants in Schmitfs birthplace. The parochial clannishness of Protestants and Catholics alike, occasionally resulting in sectarian violence, left an indelible mark on Schmitt's outlook.6 He would defend the Catholic cause into the mid-1920's; in later life he would draw distinctions 4 Carl Schmitt, Ex Captivitate Salus-Erfahrungeti der Zeit 1945/47 (Cologne, 1950), p. 10. 5 Alfred Apfel, Behind the Scenes of German Justice: Reminiscences of a German Barrister 1882-1933 (London, 1935), pp. 2-5; Ronald J. Ross, Be­

leaguered Tower: The Dilemma of Political Catholicism in Wilhelmine Germany

(Notre Dame, 1976), pp. 8-17. 6 "Carl Schmitt in Gesprach mit Dieter Groh und Klaus Figge," Over en in Zake Carl Schmitt, ed. Ket Tommissen (Brussels, 1975), p. 92; George Schwab, The Challenge of the Exception: An Introduction to the Political Ideas of Carl Schmitt between 1921 and 1936 (Berlin, 1970), pp. 18-23.

PART I

between religious groups as if the intensity of animosity had not diminished since his youth. His tendency to view politics in terms of friend and enemy was no doubt greatly influenced by his youthful identity as part of a minority caught in a confessional struggle. During Schmitfs youth Catholicism, and religion in gen­ eral, was besieged from another quarter. The materialistic interpretation of life, buttressed by the growing scientific achievements of the nineteenth century, threatened the very nature of religious belief. Monism, Darwinism, nat­ uralism, and scientism all indicated an increasing skepti­ cism about the existence of a spiritual realm.7 Technology and industry had shifted societal emphasis away from tra­ ditional spiritual values and toward power and wealth. To the religious-minded this meant moral relativism and athe­ ism, with the danger of replacing universal moral values with brute force and of relegating man to the status of a machine. Schmitfs co-religionists in Germany saw these insidious doctrines represented most clearly by socialism and liberalism, two inherently anti-clerical movements founded upon materialistic philosophies. German Catho­ lics were caught between the rising tide of secularism, the ossified anti-clericalism of Prussian Protestantism, and the patriotic pressures of a nationalistic age. These pressures became quite apparent to the young Carl when he encountered the Prussian public educational sys­ tem. In 1900, after several years in a Catholic grammar school, he entered the public humanistic Gymnasium in Attendorn. Aside from the humanistic disciplines, with the traditional emphasis on Greek and Latin designed to cul­ tivate character and intellect, he was taught mathematics and natural science by a teacher who stressed Darwinism.8 One of his instructors, a freethinker, went so far as to introduce him to David Friedrich Strauss's Life of Jesus, a book anathema to devout Christians because it challenged 7

Gordon A. Craig, Germany, 1866-1945 (New York, 1980), pp. 181-183. Over, pp. 93-94.

8 Tommissen,

EARLY YEARS, 1888-1921

the gospel accounts of Christ. His parochial views were disturbed further by the prevailing nationalist interpreta­ tions of history. Previously his historical consciousness had been based upon books written from the Catholic stand­ point; now he confronted the Prussian nationalism of Treitschke's historical thought.9 But Schmitt completed his studies with his faith undaunted and he never lost his deeply rooted aversion to materialistic philosophies. Like every German Catholic, however, Schmitt would still have to find some accommodation between his religious and his national identity. Family acquaintances were astonished when Schmitt en­ tered the University of Berlin in 1907, since it was highly unusual for someone of such modest economic background to study at a university. In making this choice, it seems that the wishes of Frau Schmitt prevailed over those of his father, who would have preferred more practical training than that offered by a university education.10 In the chang­ ing society of Wilhelmine Germany, however, a university degree opened the door to social mobility and a respected station in life for those lacking noble titles or wealth.11 And as the future would show, Schmitt was ambitious; he would try to compensate for his humble origins by winning public recognition of his achievements. The search for social dis­ tinction later led him to add the more exotic name of his first wife to his own. Several of his early publications thus bear the name Carl Schmitt-Dorotid.12 Gradually his own very common name became one of distinction in intellec­ tual circles, but his ambition would often cloud the judg­ ments of an otherwise acute mind. 9

Schmitt, Ex Captwitate, p. 25. Tommissen, Over, pp. 93-94. 11 Fritz Ringer, The Decline of the German Mandarins: The German Academic Community, 1890-1933 (Cambridge, Mass., 1969), pp. 47-48, 69. 12 See Carl Schmitt-Dorotit Politische Romantik (Munich, 1919), and Die 10

Diktatur-Von den Anfingen des Souveranitatsgedankens bis zum proletarischen Klassenkampf (Munich, 1921).

PART I

Like countless members of his peer group, Schmitt ar­ rived at the university with no precise career in mind; orig­ inally he intended to study philology. As he approached the staircase of Friedrich Wilhelm University, he noticed the sign for the law faculty. He remembered the advice of a highly successful uncle who, degrading philology as a very unpromising profession, had suggested jurispru­ dence. With casual indifference Schmitt registered with the law faculty, unaware that this would be the beginning of a fascinating, yet tragic, career. Later in life Schmitt said that if his critics knew of this rather nonchalant choice of a field of study, they would probably exclaim, "What mis­ ery we would have been spared, if this man had only walked into another area."13 During his first course in Roman law Schmitt became thoroughly fascinated with jurisprudence; but he would never abandon his deep interest in art, philosophy, and literature. As Franz Blei later observed, Schmitt's learning extended far beyond his specialization; his broad intellect enabled him to recognize and grasp the essence of remote subjects, for which he had a penchant.14 He could discuss poetry or drama with the same degree of enthusiasm he displayed when debating a pressing legal issue; frequently he invoked an allegory to explain a political phenomenon. Shakespeare was a favorite and he eventually published a book on Hamlet.15 The poet Theodor Daubler and such prominent writers as Robert Musil, Ernst Jiinger, and Hugo Ball were among his close friends and acquaintances. That such intellectual diversity enhanced the creativity and orig­ inality found in his legal and political studies is often ac­ knowledged.16 13

Tommissen, Over, pp 94-95 Blei, "Gesprach," pp 518-519 15 Carl Schnutt, Hamlet oder Hekuba Der Etnbruch der Zeit in das Spiel (Cologne, 1954). 16 Heinnch Muth, "Carl Schnutt in der deutschen Innenpohtik des Sommers 1932," Htstonsche Zeitschrift, Beiheft 1 (1971), ρ 77 14

EARLY YEARS, 1888-1921

After two semesters in Berlin, Schmitt transferred to Mu­ nich, then to Strassburg.17 Such movement was typical for German undergraduates, but Schmitf s preference for the Southwest was indicative of his Rhenish disposition and his selection of Strassburg was important. Like Heidelberg and Freiburg, the University of Strassburg was becoming a center of anti-positivist and neo-Kantian thought, intel­ lectual currents far more compatible with Schmitfs own spiritual predilections than the materialistic and positivistic thinking of the late nineteenth century. The rector of the University of Strassburg was Wilhelm Windelband, an ex­ ponent of neo-Kantian philosophy who represented the strong anti-positivist attitude spreading throughout var­ ious academic disciplines from history to science; juris­ prudence was no exception.18 Whether Strassburg attracted Schmitt precisely for this reason is unknown. Unquestion­ ably that institution exerted a substantial influence on his intellectual development, as he would always be noted for his uncompromising stand against the positivist school of law. Beginning with German unification, positivism became the prevailing form of German legal thought, and it re­ mained so for the latter part of the nineteenth century.19 In law, as with other disciplines, this meant an increasing emphasis on observation and analysis in lieu of idealist metaphysics or philosophical speculation. It signified a de­ parture from the universalism of natural-law theory in fa­ vor of the idea that law was the creation of the sovereign state. This new trend stemmed directly from the scientific empiricism of a materialistic, positivistic era and was rein17 Carl Schmitt, "Lebenslauf," Akademie fiir Deutsches Recht, R-61, Band 65, Bundesarchiv, Koblenz (hereafter BA). 18 H. Stuart Hughes, Consciousness and Society: The Reorientation of Eu­ ropean Social Thought, 1890-1930 (New York, 1958), pp. 47-48, 189-191; Ringer, Mandarins, p. 310. 19 Rupert Emerson, State and Sovereignty in Modern Germany (New Ha­ ven, 1928), pp. 47, 56.

PART I

forced by the new emphasis on German national sover­ eignty and power that accompanied unification. German legal positivists such as Paul Laband argued that law was granted by the sovereign state; it was the responsibility of jurists merely to develop an empirical and systematic anal­ ysis of legal norms as they existed in statutes, decisions, and practice. Positivist law consisted of the norms created by the power of a state which recognized no higher au­ thority. The universal ethical principles embodied in nat­ ural-law theories, which might conflict with these norms or with the power of the state, were disregarded.20 By the early twentieth century, Rudolf Stammler and other neo-Kantian jurists disputed the absolute power of the state in establishing "law" or "right."21 The neo-Kantians contended that a "higher law" existed above the norms created by the state. This idea of higher law was not a return to natural-law theory; in fact, the concept always remained vague. Yet, it did contain the precept that right law existed prior to its establishment by the state and was not dependent upon state power. Neo-Kantianism offered Schmitt a means of synthesizing the dichotomous sympathies he felt as a German nationalist and as a Catholic. The dictates of universal moral principles could be reconciled with the authority of the state; morality and power, religious conviction and nationalism, could be harmoniously integrated. It is not surprising therefore that neo-Kantian thought pervaded his early works. On the eve of World War I he wrote that the incontestable value of the state emanated, not from power, but from its relationship to a "higher law."22 It was the function of the state to transform this higher law into a wordly phenomenon.23 20 Carl J. Friedrich, The Philosophy of Law in Historical Perspective (2nd ed., Chicago, 1963), pp. 165, 173; W. Friedmann, Legal Theory (3rd ed., London, 1953), pp. 150-151, 159-161. 21 Emerson, State, pp. 159-167, 207-208. 22 Carl Schmitt, Der Werf des Staates und die Bedeutung des Einzelnen (Tu­ bingen, 1914), p. 69. 23 Ibid., pp. 10, 52.

EARLY YEARS, 1888-1921

But neo-Kantian philosophy did not entirely overshadow his sectarianism. For Schmitt also noted that in doubtful cases the Catholic Church could decide what constituted right, because it embodied universal ethical norms.24 Beyond these basic attitudes toward law, the state, and religion little is known of Schmitt's university studies and early years. But he must have excelled, since he graduated from Strassburg summa cum laude with a law degree in June of 1910. Whereupon he entered the Prussian civil service as a junior barrister in Diisseldorf, occupying that position until he passed his state assessor's examination in 1915. This routine service as a law clerk, intended to provide practical legal experience, was required before aspiring ju­ rists were admitted into the profession. Schmitt made the expected advances while accumulating an impressive list of legal publications. By 1915 he had written three books and four articles, each well received by legal scholars.25 Walter Jellinek, a dean among German jurists, remarked that Schmitt's book on law and judgment "towered far above" the cross-section of countless works on the sub­ ject.26 Apparently a bright future was awaiting the young Schmitt. Aspiring lawyers of Schmitt's calibre were usually des24 Ibid., pp. 44-45, 81-83. See also Helmut Rumpf, Carl Schmitt und Thomas Hobbes: ldeelle Beziehungen und aktuelle Bedeutung mit einer Abhandlung uber: Die Fruhschriflen Carl Schmitts (Berlin, 1972), pp. 13-17. 25 In addition to Der Wert, Schmitf s most important publications of this period are liber Schuld und Schuldarten: Eine terminologische Untersuchung (Breslau, 1910); Gesetz und Urteil: Eine Untersuchung zum Problem der Rechtspraxis (Berlin, 1912); "Clber Tatbestandsmassigkeit und Rechtswidrigkeit des kunstgerechten operativen Eingriffs," Zeitschrift fur die gesamte Strafreehtswissensehaft, Band 31 (1910), pp. 467-478; "Der Wahnmonolog und eine Philosophie des Als-Ob," Bayreuther Blatter (June 1912); "Schopen-

hauers Rechtsphilosophie ausserhalb seines philosophischen Systems," Monatsschrift fiir Kriminalpsychologie und Strafreehtsreform, Jg. 10, Heft 1 (April 1913), pp. 27-31; "Juristische Fiktionen (Uber Vaihinger und die Philosophie des Als-Ob)," Deutsche Juristen-Zeitung, Jg. 18, Heft 12 (1913), pp. 804-806. 26 See Walter Jellinek's review of Gesetz und Urteil, Archiv fiir offentliches Recht, XXXII (1912), pp. 296-299.

PART I

tined for careers in either the bureaucracy or the university, two quite conservative institutions. The federal and Prus­ sian bureaucracies, dominated by Prussian aristocrats, acted as the servants of the monarchy rather than as the executors of the will of the people as it was manifested in the Reichs­ tag. By the end of the nineteenth century most German academicians had also become committed to the authori­ tarian state, paying homage to the Kaiser even in the uni­ versity lecture halls.27 Many professors had also succumbed to the lure of chauvinistic nationalism and lent their sup­ port to the Pan-German League's clamor for German worldpower status. Even among those who avoided such crude nationalistic expressions, there was a general consensus about the central importance of the state. Law professors debated whether the state was essentially power or imbued with a moral purpose, but the authority of the state was rarely questioned. Although Schmitt never displayed any vulgar national­ istic sentiments, he did share the exalted view of the state so prevalent among his future colleagues. And his concept of the moral purpose of the state had no relationship to the liberal doctrine of individualism. From his perspective the freedom of the individual was secondary to the gran­ diose task allotted to the state. In fulfilling its function of establishing right law, the state could not tolerate oppo­ sition and consequently "no individual can have autonomy within the state."28 Schmitt believed that he was living in an anti-individualistic age, yet a great age.29 And it was precisely on the point of authoritarianism vs. liberal indi­ vidualism that the views of many Catholics and those of non-Catholic conservatives coincided. For alongside many 27 George Iggers, The German Conception of History: The National Tradition of Historical Thought from Herder to the Present (Middletown, Conn., 1968), pp. 146-147; Walter Laqueur, Weimar: A Cultural History, 1918-1933 (New York, 1974), p. 184; Ringer, Mandarins, pp. 114, 127, 139. 28 Schmitt, Der Wert, p. 101. 29 Ibid., p. 6.

EARLY YEARS, 1888-1921

of the reformist tendencies within German political Ca­ tholicism there stood strains of authoritarianism. Since the Middle Ages the Catholic Church has fostered the notion of a hierarchy of authority descending from God. In Ger­ many the right wing of the Catholic Center Party remained authoritarian from the late nineteenth century through the Weimar Republic. Within this faction Franz von Papen eventually rose to political prominence while trying to unite the Christian, national, and conservative forces against so­ cialism.30 The more progressive wing of the party had also harbored similar attitudes before 1914. Matthias Erzberger, the spokesman for this faction and later a party leader, saw the Center as reformist, yet authoritarian. He wrote that an authoritarian party's "highest call is not freedom . . . but natural and divine law."31 Such attitudes obviously made it easier for Schmitt to adjust to the bureaucratic and academic professions of Wilhelmine Germany. Still, Catholicism always remained a potential obstacle to Schmitt's advancement. Authoritarianism aside, Cath­ olics continued to be viewed as outsiders, suspect in the eyes of non-Catholic professors and bureaucrats. Schmitfs deference to the state, and to authority in general, might mollify some of this distrust, as his exceptional talents might compensate for his social origins. But he still had to con­ front the traditional anti-clericalism of the bureaucratic and university elites. Catholics were often excluded from the most important administrative positions; a future career in government might actually be jeopardized by membership in a Catholic organization.32 In the prejudiced atmosphere of Wilhelmine Germany it was not unusual for promising scholars to be denied academic chairs for religious or po30 Jtirgen A. Bach, Franz von Papen in der Weimarer Republik: Aktivitaten in Politik und Presse, 1918-1932 (Diisseldorf, 1977), pp. 21-22; Klaus Ep­ stein, Matthias Erzberger and the Dilemma of German Democracy (New York, 1971), p. 34. 31 Epstein, Erzberger, pp. 91-92. 32 Ibid., p. 69; Ross, Beleaguered Tower, pp. 30-32.

PART I

litical reasons, as was the case with Georg Simmel and Robert Michels, a Jew and a socialist.33 The memory of the dispute over the appointment of Martin Spahn to a Catholic chair of history at Strassburg, a cause cittbre in 1901, was still very much alive when Schmitt studied at that insti­ tution.34 For someone in Schmitfs situation it was wise to proceed cautiously, which partially explains why a political thinker of Schmitf s later stature did not address specific issues concerning German domestic politics and foreign policy in his youthful writings. The wrong political attitude could compromise a career. Although one could argue that Schmitfs work on the relationship between the state and the individual was po­ litical in nature, it was not necessarily viewed as such by his peers. When most German academics thought of pol­ itics, they envisioned not the authoritarian institutions of the monarchy, army, and bureaucracy, but rather the more popularly based political parties in the Reichstag. By keep­ ing his discourses on the state on a very abstract philo­ sophical level and by avoiding a stand on any particular political question, Schmitt was reflecting this general atti­ tude toward politics held by the academic elite. It was the era of the so-called apolitical professor, typified by the ar­ gument that professors must stand above politics. Profes­ sors supposedly discharged their academic duties as the highly revered defenders of pure Wissenschaft; they were not to meddle in the vulgarity and partisanship of politics, which might compromise their alleged objectivity.35 Many professors were repulsed by the petty, often irresponsible partisanship of parties representing special socioeconomic, ideological, and religious interests. From the narrow view­ point of such academicians, this party bickering was enough to condemn democracy itself; it threatened the unity of the 33

Ringer, Mandarins, pp. 135-137, 141-143. Ross, Beleaguered Tower, pp. 26-28. 35 Hans Bleuel, Deutschlands Bekenner: Professoren zwischen Kaiserreich und Diktatur (Bern/Munich, 1968), pp. 54-55, 65-66. 34

EARLY YEARS, 1888-1921

nation and undermined the authority of the established order to which they were totally committed. It also con­ firmed their belief that a strong state must stand above parties and represent the interests of the nation as a whole. Professors could expound upon the "national cause" and the significance of the state, but other opinions were frowned upon as "political."36 Convinced of the unsavory nature of politics, Schmitt and his peers, like large segments of the German population, were ill prepared for the rise of par­ liamentary democracy in 1918. Schmitt never lost his an­ tipathy for party politics and throughout the Weimar Re­ public he refused to join a political party. Nothing existed in Schmitfs prewar writings to indicate the very broad interest in various aspects of political thought he would show in the future. To the extent that he had a perspective on government it was colored by his naive confidence in the moral purpose of the state and his disdain for party politics. Most of his efforts were devoted to ob­ taining his professional credentials and establishing a ca­ reer. His life at this time was rather uneventful, though the quality of his legal writings was a sign of the stimulating works he would produce over the next several decades. By World War I he was one promising young scholar among many. When Schmitfs generation went forth to the battlefields in August 1914, he was not among them. The man who later theorized that the state had "the right to demand from its own members the readiness to die and unhesitatingly to kill enemies" never served at the front.37 Schmitt man­ aged to delay his entry into the military until he passed his final assessor's examination in Berlin on February 15, 1915. The following day he enlisted as a volunteer in the reserve infantry, but a vertebra injury during basic training left him unfit for combat duty. In March he was transferred 36 37

Ringer, Mandarins, pp. 121, 139. Carl Schmitt, Der Begriffdes Politischen (4th ed., Berlin, 1963), p. 46.

PART I

to the service of the general staff in Munich, where he spent most of the war. And military service by no means com­ pletely interrupted his progress in the academic world. On February 16, 1916, he received his Habilitation, or formal inauguration as a lecturer, at the University of Strassburg. While the battle of Verdun was being fought, Schmitt was granted an extended leave of absence between May and August of 1916 to lecture at Strassburg.38 In that same year he married Pawla Dorotic, of whom little is known. Four years of conflict and slaughter, climaxed by the utter defeat and collapse of the old order in Germany, would lead a maturing Schmitt to a new recognition of the realities of power. The stability provided by the authoritarian state of the Wilhelmine era would contrast sharply with the up­ heavals and perennial crises of the next half century of German history. To a large degree, this loss of stability accounts for Schmitfs future preoccupation with the themes of order, peace, and stability. His youthful neo-Kantianism was abandoned in the process. What remained was a fun­ damental antipathy toward liberalism and materialism, as well as a belief in the primacy of the state, all of which had been firmly engrained in his mind by his religious, national, and academic heritage. In the midst of the war he more clearly articulated these basic feelings about the state and society, and his writings began to reflect a sense of cultural pessimism similar to that expressed by many conservative German thinkers since the 1880's. To such writers, the rise of a materialistic culture, the scientific interpretation of man and nature, and the growth of liberal political ideas had destroyed traditional cultural values.39 Life was left devoid of any meaning, except per­ chance that provided by bourgeois hedonism. This malaise extended from reputable intellectuals such as Thomas Mann 38

Schmitt, "Lebenslauf." Klemens von Klemperer, Germany's New Conservatism: Its History and Dilemma in the Twentieth Century (Princeton, 1972), pp. 6-7,47-69; Laqueur, Weimar, p. 79. 39

EARLY YEARS, 1888-1921

and the philosopher Ernst Troeltsch to popularizers such as the anti-Semitic Paul de Lagarde. The reaction against this alleged cultural decay reached new heights during the war, when many conservatives expounded upon the "ideas of 1914." Johann Plenge, the Munster sociologist who coined the phrase, claimed that Germany was waging a war against the Enlightenment of the eighteenth century and the liberal ideas of 1789. For those conservative intellectuals who ac­ cepted Plenge's concept, the war took on the nature of a struggle between conservatism and liberalism, spirituality and materialism, traditional values and bourgeois moder­ nity. Some saw the struggle in moral terms; Thomas Mann viewed the rejuvenation of conservatism as a spiritual quest for absolute values. Others, particularly Max Scheler, and later Ernst Junger, placed a value on the conflict itself as an inner experience that would revitalize the nation. Schmitfs own orientation, however, remained primarily religious and philosophical. He avoided the ethnocentric political pronouncements which characterized the wartime publications of so many conservatives. Schmitt never even alluded to the popular notion of a higher German Kultur in conflict against the mechanistic-materialistic civilizations of Germany's enemies in the West, and he saw no re­ deeming aspect to the war whatever. From his perspective, all of Europe, including Germany, suffered from the spir­ itless mechanization of life. In the midst of this mass destruction and cultural crisis, Schmitt found solace and relevance in the poetry of his friend Theodor Daubler, a man whose life and art had been decisively influenced by an inner personal conflict between liberal Enlightenment values and Catholicism.40 The ten­ sion between materialism and spirituality was the motif of a series of poems Daubler published under the heading Nordlicht (Northern Lights). Schmitt interpreted Nordlicht 40 Carl Schmitt, Theodor Daublers "Nordlkht": Drei Studien iiber die Elemente, die Geist und die Aktualitat des Werkes (Munich, 1916).

PART I

as an indictment of the Occident, exposing a crude, spir­ itless, inartistic world which "has designated itself as cap­ italistic, mechanistic, relativistic; a world of traffic, tech­ nique, and organization."41 Function, Schmitt wrote, rather than spirit or meaning was the key to the age, with "func­ tion as some grand means to some miserable and senseless goal."42 Despite enormous material prosperity, men had become poor devils. They knew everything, but believed in nothing; they were interested in everything, but enthu­ siastic about nothing. Their heaven on earth was one of commerce and industry; they discounted a loving and mer­ ciful God, for they had accomplished such astonishing things.43 "An eschatological dread had seized many even before the horrors of the World War became a reality," as the last and most important things were secularized. "Right was transformed into power, faith into calculation, truth into a general recognition of accuracy, beauty became good taste. . . . In place of the distinction between good and evil there appeared a sublime difference between usefulness and destructiveness."44 The essential problem, Schmitt concluded, was that the age lacked a soul. While burdened with this metaphysical pessimism, Schmitt nonetheless continued to perform the worldly functions demanded of him by the state. Among Schmitt's peers the state had usually been exempt from the same criticism applied to other political institutions and seg­ ments of society. To the conservative cultural critics, the authoritarian state, a paradigm of traditionalism, stood as one of the last bulwarks against the wave of spiritless lib­ eralism and socialism. It also symbolized a familiar sense of order and stability for those who looked with dread upon an unknown future. After 1914, with national survival at stake, the state assumed even greater significance. Ibid., pp. 63, 69. Ibid. 43 Ibid., pp. 64-65. 44Ibid. 41 42

EARLY YEARS, 1888-1921

The dictates of total war had necessitated an expanded role for the state in the lives of the German people. To facilitate the war effort martial law had been declared im­ mediately upon the outbreak of hostilities in accordance with the Prussian state-of-siege law of 1851 and the Ba­ varian state-of-war law of 1912. And Schmitt had firsthand knowledge of the increased exercise of state power. At the general staff headquarters in Munich he had been assigned to the state-of-war section involved in administering mar­ tial law. The practical and legal problems this entailed stirred within him an abiding interest in dictatorship and in the Ausnahmezustand (the state of exception). He soon pub­ lished two articles on the legal implications of the state-ofsiege condition in Germany.45 This experience also led him further away from neo-Kantianism. Instead of moral pur­ pose, he now emphasized concrete danger, or what he later termed the "concrete situation," as dictating the actions of the state.46 The basic tenor of Schmitt's future work on constitutional law was already inherent in these wartime articles. At the core of his legal thought was the security of the state and the preservation of the existing constitutional order. As would be the case with his more influential Weimar pub­ lications, these early works concerned the extent to which constitutional laws could be suspended in order to meet a present danger and to reestablish a normal state of affairs. With regard to martial law, he argued that a threat to the state required that a military commander retain a certain degree of flexibility unhindered by normal legal restric­ tions.47 To meet an impending danger a commander could 45 Carl Schmitt, "Diktatur und Belagerungszustand: Eine staatsrechtIiche Studie," Zeitschriftfir die gesamte Strafrechtswissenschaft, XXXVIII (1916), pp. 138-161; and "Die Einwirkungen des Kriegszustandes auf das ordentliche strafprozessuale Verfahren," Zeitschrift fir die gesamte Strafrechtswissensehaft, XXXVIII (1917), pp. 783-797. 46 Schmitt, "Diktatur," pp. 147, 159. 17 Ibid., pp. 158-159.

PART I

temporarily suspend constitutional laws where necessary, or institute temporary measures (Massnahmen) not pro­ vided by current laws. But under no circumstances could he enact new laws (Gesetze), for this authority still rested with the legislature, nor could he suspend the entire con­ stitutional framework. Massnahmen are merely temporary means to a specific end, such as to quell domestic disorder or to assure efficient mobilization, whereas Gesetze repre­ sent more permanent and general legislation.48 The sus­ pension of certain laws, like the enactment of Massnahmen, by no means alters the existing legal system. This funda­ mental distinction between Gesetze and Massnahmen would become the cornerstone of Schmitt's legal interpretation of presidential emergency powers in the Weimar Republic. It was his contention that the use of emergency powers in times of crisis was necessary as a defense of the constitution and did not constitute a step toward its abrogation or to­ ward the institution of a permanent dictatorship.49 With the state concept firmly entrenched in the minds of so many conservative German intellectuals since Hegel, and considering the circumstances of postwar political and psychological dislocation, it is not difficult to discern why Schmitt would consistently designate the state as the piv­ otal institution in society. But at the end of the war there emerged a new constitutional framework under which the state must exercise its power. It would be a constitutional order based upon many of the liberal principles about which Schmitt had serious reservations. And the new political structure would bring political parties to the forefront of the governmental process. Some disconcerting readjust­ ments would be in order for the young jurist. 48

Ibid., p. 149; Schmittr "Einwirkungen," pp. 796-797. "Diktatur," pp. 139, 156.

49 Schmitt,

TWO

POLITICAL CONSCIOUSNESS, DEMOCRACY, AND DICTATORSHIP

BY THE end of 1918 the Wilhelmine order of Schmitfs youth had fallen apart. Under the pressures of military defeat, demoralization, and domestic upheaval the Kaiser abdi­ cated and a republic was proclaimed on November 9. These were agonizing times for Schmitt. Not only was the future political direction of Germany unclear, but the continued existence of the republic was in doubt from the very be­ ginning. An unstable republic, lacking clearly established centers of power and authority, had replaced the most powerful state in German history. For decades the au­ thoritarian state had been the cement which held German society together, despite unresolved social conflicts and the lack of a political consensus. With the capitulation of this overriding authority, the pluralistic forces in Germany be­ gan vying for power. Although the supporters of a repub­ lican form of government hoped that a constitutional as­ sembly could bring about a reconciliation among these forces, the country remained for months in a state of revolution and civil war. Encouraged by the successful Russian Rev­ olution, the radical left continued to agitate for the estab­ lishment of a socialist state. Throughout the winter of 19181919 the radical left fought it out in the streets of Berlin with the army and the Free Corps.1 With civil strife in the capital and worker-soldier councils arising across the country, Schmitt, like other members of the middle classes, feared that Bolshevism might triumph 1

Craig, Germany, pp. 396-410.

PART I

in Germany as it had during the wartime dislocation in Russia. The Free Corps in Berlin had barely suppressed a second communist uprising in early March 1919 when a communist regime was established in Hungary, increasing the anxiety of those Germans who yearned for a return to peace and order, but spurring the radicals toward revo­ lutionary action. And Schmitt soon found himself in the midst of a revolutionary situation. On April 6, a soviet republic had been declared by the radicals in Munich, where Schmitt was still attached to the general staff headquarters. Schmitf s anxiety was enhanced by the masses of workers who took to the streets in support of the soviet, and by the subsequent seizing of hostages, including a number of officers.2 The chaos of this period, the violence and un­ certainty about one's personal security, greatly affected Schmitt's thinking and attitudes. He later recounted that he felt himself in personal danger, and in his political writ­ ings thereafter he often mentioned that the primary func­ tion of the state was the preservation of one's physical existence. The atrocities committed by the Free Corps in crushing the communists in May would soon be forgotten; after all, the Free Corps volunteers, who reestablished pub­ lic order and security, were the saviors of the middle classes. It would only be the horrors of Bolshevism and the chaos that would be remembered by Schmitt and the bourgeoisie in Munich. For the duration of the Weimar Republic they were haunted by the thought of a breakdown of civil order and the reenactment of these revolutionary events. Adding to Schmitf s dismay over the immediate postwar situation was the uncertainty of his own future. What had previously appeared to be a highly promising career for him as a professor of law suddenly became questionable. When finally released from the military on July 1, 1919, Schmitt could not return to Strassburg to continue his ac2 Allan Mitchell, Revolution in Bavaria, 1918-1919: The Eisner Regime and the Soviet Republic (Princeton, 1965), pp. 116, 273, 277, 284-285, 301-303,

310.

EARLY YEARS, 1888-1921

ademic career.3 He had lost his position when the univer­ sity closed on November 11, 1918; subsequently it was re­ stored as a French institution after the Treaty of Versailles. It was only with the personal assistance of Moritz Julius Bonn that in September of 1919 Schmitt was able to acquire a lectureship at the School of Business Administration in Munich, where Bonn was a director. This marked the be­ ginning of a close friendship which, in spite of their often opposing political viewpoints, endured until the end of Weimar.4 But though Schmitt was greatly indebted to Bonn for this help, a lectureship at the business school was hardly commensurate with his talent; it certainly did not fulfill his earlier expectations. During this period of personal disappointment and po­ litical upheaval Schmitt underwent an intellectual meta­ morphosis. The war and the German revolution had im­ pressed upon him the necessity of broadening his perspectives on politics beyond philosophical discussions of the purpose and function of the state, and of confronting a wide range of political issues he had neglected in his prewar writing. Like many German intellectuals, particu­ larly his academic peers, Schmitt had also previously avoided political engagement. This general aloofness had been fos­ tered throughout the nineteenth century by a variety of currents in German society and culture. The German in­ tellectual tradition tended to stress inner moral and intel­ lectual development rather than public life and political affairs. Thomas Mann articulated this attitude in his war­ time work Reflections of a Nonpolitical Man, when he praised the German cultural orientation toward the individual spirit, as opposed to the terrorism of politics in the West.5 Intel­ lectuals in Wilhelmine Germany, including Max Weber and 3 Schmitt,

"Lebenslauf." Nachlass Moritz Julius Bonn, Nos. 48-50, 56, BA; Moritz Julius Bonn, So Macht Man Geschichte: Bilanz eines Lebens (Munich, 1953), pp. 330-332. 5 Joachim C. Fest, Hitler (New York, 1975), pp. 379-380; Hajo Holborn, A History of Modern Germany, 1840-1945 (New York, 1970), p. 411; Klemperer, Conservatism, pp. 51-53. 4

PART I

Friedrich Meinecke, who tried to overcome this passivity and antipathy toward politics were frustrated by the strength of the authoritarian state and the complacency produced by material prosperity and security.6 Most of Schmitt's teachers and colleagues in the aca­ demic and legal professions who did write about the state and society tended either to intellectualize political ques­ tions or to degrade politics as the mundane affairs of in­ terest groups unworthy of scholarly attention.7 In many cases this alleged apolitical position was a tacit political decision in favor of the existing order. So long as the Wilhelmine state towered above and held the antagonistic forces in check, jurists could subsume the social question within the larger context of the existing constitutional framework. Faced with an entrenched authoritarian state, which re­ sisted political alternatives, Wilhelmine jurists usually dis­ cussed law and government in a very legalistic and phil­ osophical fashion, while avoiding the sociological aspects of politics. After 1918, however, the collapse of the au­ thoritarian state and the rise of a parliamentary system opened the way for a variety of such alternatives.8 Under the new constitutional system competing social forces, manifested in political parties and interest groups, could greatly affect the future course of Germany. And to those groups which rejected the Weimar constitutional order, particularly the communists and the reactionary monarch­ ists, there were also the options of revolution or coups. In these circumstances, those concerned with law and gov­ ernment would have to take some stand on the new con­ stitution and the alternatives advocated by the diverse groups 6 Friedrich Meinecke, Cosmopolitanism and the National State, trans. Rob­ ert B. Kimber (Princeton, 1970); Ringer, Mandarins, pp. 130-132. 7 Ringer, Mandarins, pp. 114-121. 8 Ibid., pp. 227-228; Gordon A. Craig, "Engagement and Neutrality in Weimar Germany," Journal of Contemporary History, Vol. 2, No. 2 (April 1967), pp. 49-63.

EARLY YEARS, 1888-1921

competing for political power. For such writers political choices had become unavoidable. Schmitfs increasing political awareness was quite evi­ dent in the book he published early in 1919 entitled Politische Romantik (Political Romanticism).9 Before World War I, romanticism had been one of the strongest apolitical cur­ rents in German intellectual life. Most German intellectuals had been profoundly influenced by the romantic tradition, which from the beginning had fostered a subjective per­ ception of reality wherein the fulfillment of the self was paramount. Individuality was viewed as superior to the norms of society.10 This romantic individualism and preoc­ cupation with the self led to a sense of social alienation. Political romanticism did, of course, exist. But from its ear­ liest expression in Adam MulleriS Elements of Stateaaft (1808— 1809) through the work of Treitschke at the end of the nineteenth century, political romanticism in Germany re­ mained almost exclusively romantic nationalism, and this tended to discourage active political involvement on the part of German citizens.11 Beginning with Miiller, the ro­ mantic nationalists no longer focused on the individual but on the nation as a personification of a greater individual attempting self-realization. The decisive institution in this process was the state, which embodied the laws, customs, and traditions of the nation. Although politics took on a new importance for the romantic nationalists, politics re­ mained the prerogative of the state rather than of the in­ dividual within society. Despite his earlier fascination with the ideas of Miiller, Schmitt concluded by 1918 that Miiller had never actually made the transition from the romantic preoccupation with the self to a wider perspective on the state and politics. 9 References are to the 1925 edition of Politische Romatitik. See also Carl Schmitt, "Politische Theorie und Romantik," Historische Zeitschrift, Band 123 (1921), pp. 377-397. 10 Meinecke, Cosmopolitanism, pp. 49-63. 11 Ibid., pp. 95-117; Holbom, Germany, p. 392.

PART I

Using Miiller as an example, Schmitt now argued that". . . politics is as foreign [to a romantic] as is morality or logic," and that "Where political activity begins political roman­ ticism ends."12 Schmitt interpreted romanticism as a type of "subjective occasionalism" that precluded any firm po­ litical position or commitment.13 Everything existed merely as an Anlass (occasion or opportunity) for the productivity of the romantic. The romantics, Schmitt contended, had replaced the concept of God, which traditionally served as a universal absolute and objective standard, with the sub­ jectivity of the individual.14 There no longer existed any absolute vantage point or frame of reference, other than the individual himself, on which the romantic could base decisions. Society and history, cosmos and humanity, were but occasions for the productivity of this genial Ich. The object itself, whether political or not, offered only a tem­ porary concrete point around which the romantic game of imagination was suspended.15 It had been this "subjective occasionalism," Schmitt be­ lieved, that allowed the romantics to associate themselves with the most varying, often contradictory, political and philosophical viewpoints. While the revolution triumphed romanticism appeared revolutionary, after the revolution it became conservative, and finally it was affiliated with a reactionary restoration.16 Schmitt noted that while in Gottingen Miiller became an Anglophile, in the feudal milieu of Berlin extremely feudal, and in the clerical circles of Vienna very clerical. From Schmitt's perspective, Miiller was an opportunist who treated politics as merely another occasion for his own romantic self-expression. Such a ro­ mantic could not maintain a consistent political viewpoint, because "The most important source of political vitality, 12

Schmitt, Politische Romantik, pp. 205, 224; Rumpf, Schmitt, pp. 22-26. Schmitt, Politische Romantik, p. 23. » Ibid., pp. 107, 110-111, 138. 15 Ibid. 16 Ibid., pp. 160-161. 13

EARLY YEARS, 1888-1921

the belief in right and indignation over wrong, did not exist for him."17 While writing Politische Romantik Schmitt was engaged in what one historian later described as a kind of "skinshedding," by which he disassociated himself from the romantic tradition.18 It was also clear that this work, which contained so many pointed references to vacillating polit­ ical and philosophical allegiances, was written in the shadow of the changing political conditions of Germany in 19181919. What 1789 and the restoration had been to the early romantics, the German and Russian revolutions were to Schmitfs own age. According to his interpretation, the romantics had either remained apolitical or placed them­ selves at the disposal of the dominant political forces of the day. In contrast, Schmitt was determined to avoid the lure of opportunism, yet he felt that he must rise above the status of the alienated intellectual and confront the pressing political issues of his time. When the Weimar constitution went into effect on Au­ gust 11, 1919, Schmitt was faced with the crucial decision of accepting the republic or remaining in opposition. Unlike the rootless political romantics, however, Schmitt had a guide in the Catholic Church—the embodiment of tradition and enduring values—which historically had served as a haven in the midst of chaos and change. The Catholic Cen­ ter Party, which had been an active participant in the for­ mation of the republic, supported the new constitution. And Schmitt found the Catholic involvement in the de­ velopment of the new order encouraging. The Center Party might serve as a bulwark against more radical trends, par­ ticularly those associated with Bolshevism, which could lead into unknown spheres of political experimentation.19 17

Ibid., pp. 177, 182. See Schwab, Challenge, p. 23. 19 Kurt T6pner, 'TDer deutsche Katholizismus zwischen 1918 und 1933," in Zeitgeist im Wandel: Zeitgeist der Weimarer Republik, ed. Hans Joachim Schoeps (Stuttgart, 1968), p. 188; Epstein, Erzberger, p. 286. 18

PART I

While not dispelling Schmitt's fears about Germany's po­ litical future, Catholic participation did help to make the republic more palatable to him. As a lawyer and professor, Schmitt also had to consider the question of legality. His later reference to legality as the Funktionmodus (mode of operation) of the bureaucracy could also pertain to the position of jurists as well as to German professors, who as civil servants had a status sim­ ilar to that of members of the bureaucracy.20 Jurists and civil servants alike functioned according to the dictates of the legal state authorities. Once the constitution had been ratified by the popularly elected National Assembly, a new legally constituted authority had replaced the monarchy. As time passed, most conservative jurists and bureaucrats, while remaining unenthusiastic about democracy, did ac­ commodate themselves to the new legal order. Even though they made this adjustment reluctantly and anti-republican biases were evident in many of their attitudes, few of them refused to carry out their duties under the Weimar system. And Schmitt quickly reconciled himself to the fact that the Weimar constitution had become the legal framework in which he, as a jurist and professor of constitutional law, would have to function. Obedience to the legally consti­ tuted authority was always a fundamental maxim of Schmitf s political and legal philosophy. That Schmitt accepted the authority of the new regime at such an early stage was due in no small measure to this concept of legality. Although it would present him with difficult choices in the future, he never abandoned the principle of obedience to the le­ gally constituted authority.21 The unifying thread among all of these considerations, a key to Schmitf s thought, was the concept of the state. For him the state had retained its paramount importance as a central institution in society. In his mind, the German 20 Schwab, 21

Challenge, p. 93. Ibid., pp. 105-106.

EARLY YEARS, 1888-1921

state, the sovereign political entity with which the German people identified, had not appreciably changed as a result of the revolution. Although its internal political nature had been transformed, the institution of the state still repre­ sented Germany as a national unit. As Schmitt noted in a subsequent work, "By accepting the Weimar constitution the German nation does not want to disavow its identity with the German nation of the constitution of 1871; it wants to renew its Reich . . . but not establish a new Reich. Just because it is a democratic constitution, the new constitution does not establish a new German state. It only signifies that a people, which until now believed [in] . . . monar­ chical principles . . . [has decided to] continue its existence on the basis of a constitution which it has granted itself."22 But in the immediate postwar situation the unity of the German state was constantly threatened. The dangers of civil war and revolution were ever present. Adding to these internal problems of the state, and to Schmitfs dismay, was the draconian Versailles Treaty forced upon the de­ feated people. Like all German nationalists, Schmitt was appalled by the unjust and oppressive nature of a treaty that infringed upon the very sovereignty of his country. Schmitt felt that the viability of the German state as a po­ litical entity, and any possibility of overcoming the burdens of the Diktat, would depend upon the ability of the Ger­ mans to put their own house in order. Now that the au­ thoritarian hand of the monarchy had been removed, Schmitt hoped that the new constitution would provide the basis on which the future security and stability of the state could be assured. Thus Schmitt assumed the stance of a Vernunftrepublikaner, who accepted the republic out of "good sense" rather than sentiment, and joined the ranks of such prominent conservative intellectuals as Max Weber and Friedrich Meinecke (followed later by the former rightist politician Gustav Stresemann). None of these figures were 22

Carl Schmitt, Verfassungslehre (Berlin, 1928), p. 97.

PART I

ever enthusiastic about the new order, yet they all came to believe that under the circumstances it was the best alternative for Germany.23 Thereafter, Schmitt favored the stabilization of the political situation in Germany within the context of the Weimar constitution. Unfortunately, the very survival of the newborn republic would remain in doubt for several years. Events would not grant Weimar the breathing space so necessary for recovery or stabilization. Within a matter of months after the con­ stitution had been ratified, the government would be on the verge of collapse, challenged by overt assaults from extremists. In March of 1920, the ardent monarchists Wolf­ gang Kapp and General Walther von Liittwitz, backed by a brigade of soldiers scheduled for dissolution, staged a coup in Berlin, forcing the Ebert government to flee the city. Shortly thereafter the communists in the highly in­ dustrialized Ruhr area led a Red Army of 50,000 men in revolt against the republic. It was only a general strike by German workers against the rightist seizure of power that brought a quick end to Kapp's adventure. But while elim­ inating this short-lived rightist regime, the strike reemphasized the tremendous power of the working classes and, in the minds of the bourgeoisie, indicated a potential for further revolutionary activity. During this crisis the army demonstrated that its own sympathy for the republic was quite limited. It took part in the brutal suppression of its ideological enemy on the left, ending the communist revolt, but it had not come to the assistance of the government during the Kapp Putsch. More important, these events, along with the suspicion and antagonism among the plur­ alistic forces in Germany, were clear indications that the reconciliation of class and ideological differences was still exceptionally difficult. And in the elections to the first Reichstag on June 6, 1920, those parties supporting the republic failed to acquire a majority. With voting trends 23

Klemperer, Conservatism, pp. 92-93.

EARLY YEARS, 1888-1921

moving to the extreme right and left, the potential for fur­ ther disorder still existed.24 It was during this period of sustained crisis that Schmitt wrote a timely book on a subject that would eventually become closely connected with his name. Die Diktatur (Dic­ tatorship), appearing in 1921, was a historical and theo­ retical study of the nature of dictatorship from ancient Rome to the Leninist regime.25 But there was little doubt that contemporary events had prompted Schmitt to undertake this study. For though Die Diktatur was a continuation of his wartime work on the state of exception, Schmitt's view­ points had been greatly influenced by the revolutionary postwar situation in Europe. The unexpected Russian and German revolutions had raised questions concerning the legality and legitimacy of a newly created political order, and the current German situation raised the additional problem of how a constitutional system could sustain itself in the face of internal challenges to its authority. In his earlier studies of martial law, Schmitt had already exam­ ined the use of dictatorial powers as a means of preserving the existing system. The Leninist dictatorship of the pro­ letariat had, however, shown that dictatorship could be revolutionary as well. Schmitt was particularly concerned about the persistent danger from the left, because Bolshe­ vism threatened not just the constitution but the German state itself. Moreover, Bolshevism was antithetical to his religion and his entire way of life. And though temporarily suppressed, revolutionary sentiment had by no means been eradicated in Germany. The refusal of the German communists to recognize the 24

Craig, Germany, pp. 429-433. References are to the 1928 edition of Die Diktatur. In Constitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton, 1948), p. 14, Clinton L. Rossiter called Schmitfs book a "trailblazing" work. Frederick M. Watkins referred to Die Diktatur as "The pioneer study in the field. . . ." See The Failure of Constitutional Emergency Powers under the German Republic (Cambridge, Mass., 1939), p. 143. 25

PART I

authority of the Weimar constitution had convinced Schmitt that they were determined to imitate the Leninist model of revolution against what they considered an illegitimate bourgeois order.26 In Die Diktatur, Schmitt had cited the Leninist dictatorship of the proletariat as one example of a "sovereign dictatorship" which "... sees in the total existing order the condition, which it wishes to eliminate through its actions. It does not merely suspend an existing constitution. . . but attempts to create a condition in which it can establish a constitution, which it views as the true constitution. It appeals not to an existing, but rather to a newly arising constitution."27 By rejecting the legitimacy of the established order, a sovereign dictator claims that he acts on behalf of the people and that his authority em­ anates solely from this "formless pouwir constituant." It is the purpose of the sovereign dictator to represent the will of these formless and disorganized people, and to create the external conditions which permit the realization of the popular will in the form of a new political or constitutional system. Theoretically, a sovereign dictatorship is merely an Ubergang (transition), lasting only until the new order has been established.28 According to Schmitt, the limited transitional nature of a sovereign dictatorship, along with the implied notion of popular sovereignty, completely dis­ tinguishes this type of rule from an absolute monarchy or sovereign aristocracy. In the case of Marxism, the dicta­ torship of the proletariat supposedly would disappear once the transition to true communism had been completed. Schmitt also considered the National Assembly, which had framed the Weimar constitution, a sovereign dictator­ ship drawing its authority from the sovereignty of the peo­ ple. With the ratification of the constitution, however, the dictatorship ended and Weimar became the newly estab26

Schmitt, Diktatur, pp. xin-xrv. Ibid., pp. 137, 204-205. 28 Ibid., p. 146; Schwab, Challenge, p. 35. 27

EARLY YEARS, 1888-1921

lished legal and political order.29 But in its attempt to de­ fend itself against those who denied its authority, Weimar could still rely upon another type of dictatorial power granted through Article 48 of the constitution. For this article stip­ ulated that the Reich president could, when public order and security were endangered, take necessary measures to reestablish a normal state of affairs. Schmitt referred to these powers as those of a "commissarial dictatorship," which, in contrast to a sovereign dictatorship, was de­ signed to preserve the existing system. "The [commissarial] dictator is not a tyrant and the [commissarial] dictatorship is not an absolute form of rule, but an exclusively repub­ lican and constitutional method of preserving freedom."30 He is always the commissar of the pouvoir constitue, deriving his authority from a constitutional organ and retaining his position only within the existing constitutional frame­ work.31 This type of dictator is called upon only when the constitutional order is seriously threatened, and his ap­ pointment is limited to the duration of the crisis. During that time he may, when necessary, temporarily suspend certain laws or parts of the constitution in order to meet this danger. He cannot, however, change existing laws, abolish the constitution or the system of government, or make new laws. After restoring order and security, the commissarial dictator is relieved of his commission by the authorizing pouvoir constitue and the original constitutional order is reinstated.32 Schmitfs models of dictatorship were obviously quite applicable to the state of confrontation existing between the republican authorities and those, whether communists or reactionary monarchists, who sought to overthrow the Weimar order in the name of some other allegedly legiti­ mate authority. In fact, in the very year Schmitt published 29 30 31

Schmitt, Diktatur, p. 203, and Verfassungslehre, p. 59. Schmitt, Diktatur, pp. 6-7. Ibid., pp. 145-146. p. 136.

32Ibid.,

PART I

Die Diktatur, President Ebert invoked Article 48 to coun­ teract the anti-republican agitation that followed the mur­ der of Matthias Erzberger by rightist assassins. As a strong advocate of the Weimar constitution and one who urged the Germans to ratify the Treaty of Versailles, Erzberger had symbolized everything the extreme right detested in Weimar. In an effort to halt this assault on the republic, Ebert temporarily banned anti-republican groups and pub­ lications.33 Although Schmitt made no reference to these events in his book, he would cite such examples in future works and from the beginning he wholeheartedly sup­ ported the use of Article 48 in defense of the constitution. Yet, even at this early stage Schmitt recognized that Ar­ ticle 48 was a two-edged sword. With almost prophetic insight, he foresaw the possibility in which a commissarial dictatorship under Article 48 could be transformed into a sovereign dictatorship that would destroy the Weimar state and constitution. Schmitt noted that a historical precedent had already been set in ancient Rome when both Sulla and Caesar deviated from the traditional practice of commis­ sarial dictators and abrogated the existing constitutions.34 Although Schmitt insisted that the president must have exceptional latitude in instituting the appropriate emer­ gency measures demanded by a crisis situation, he was wary of the dangers inherent in such presidential powers. He cautioned that ". . . if this extensive authority is not to signify a disintegration of the total existing legal order and the transferring of sovereignty to the Reich president, these measures (Massnahmen) must always be of a factual nature, and as such could be neither acts of legislation nor involve the administration of justice."35 This prudent statement contrasts sharply with the future interpretations of Schmitt 33 Erich Eyck, A History of the Weimar Republic, Vol. I, trans. Harlan P. Hanson and Robert G. L. Waite (Cambridge, Mass., 1967), pp. 188-189. 34 Schmitt, Diktatur, pp. 2-4, 25-27, 105. 35 /bid., pp. 201-202.

EARLY YEARS, 1888-1921

as one who intentionally undermined the Weimar consti­ tution and paved the way for a totalitarian dictatorship.36 The transformation in Schmitt's thought that had oc­ curred since the war was also evident in Politische Theologie (Political Theology), a short book on sovereignty and the state of exception he published in March of 1922.37 No longer concerned with neo-Kantian notions of "higher law" or abstract concepts of "right," Schmitt now argued that legal theory must relate to actual political and societal con­ ditions. Politische Theologie was permeated with phrases such as "a philosophy of real life," an "adequate expression of reality," and the "juristisch Konkreten."38 Henceforth, the "concrete situation" would prevail over abstract construc­ tions in Schmitfs legal thought. Schmitfs intellectual reo­ rientation placed him among that small minority of German scholars—including Max Weber, Ferdinand Tonnies, and Max Scheler—who recognized the importance of sociolog­ ical and political studies. Schmitt had, in fact, participated in Weber's seminar at Munich in 1919-1920, and he later published sections of Politische Theologie as his contribution to a Festschrift in honor of Weber.39 Among the host of other contributors were the economic historian Carl Brinkmann, the Freiburg legal philosopher Hermann Kantorowicz, and Tonnies, all fathers of German sociology.40 However, the majority of German mandarins, as Fritz Ringer has called German professors, retained their tra­ ditional aversion to such innovative approaches and doubted whether sociology and political science were legitimate scholarly disciplines at all. In the minds of many of these 36 See Jiirgen Fijalkowski, Die Wettdung zum Fiihrerstaat: ldeologische Komponenten in der politischen Philosophie Carl Schmitts (Cologne, 1958). 37 Carl Schmitt, Politisehe Theologie: Vier Kapitel zur Lehre von der SouverSnitat (Munich, 1922). 38

Ibid., pp. 22, 26, 46. See Carl Schmitt, "Soziologie desSouverdnitatsbegriffs und politische Theologie," in Hauptprobleme der Soziologie, ErinnerungsgabefUr Max Weber, Band Π (Munich, 1923), pp. 3-35. 40 Laqueur, Weimar, pp. 188, 199. 39

PART I

orthodox mandarins, sociology was often equated with so­ cialism or Marxism. To others, sociology represented an empirical philosophy that threatened to replace the cher­ ished idealist belief in ". . . the autonomy and potency of pure geisf' with the notion that ideas have material causes.41 Within law faculties the opposition to the new disciplines was also due to the fear that the infusion of sociological or political factors would compromise the objectivity of legal theory and analyses. As Schmitt noted, "Nothing is more modern today than the struggle against the political."42 The resistance to any violation of the traditional sepa­ ration of jurisprudence and sociology was best illustrated by Hans Kelsen's theory of pure law (reine Rechtslehre).43 This prominent legal scholar argued that law was norm and that an entire legal system emanated from the basic and unifying norms found in a constitution. A jurist was to restrict himself to analyzing and interpreting various aspects of law within the narrow confines of these basic norms; he was not to allow his perspectives to be affected by sociological, political, or even moral considerations. The purity of legal theory must remain untainted by such fac­ tors, which might prejudice juristic ideas. It was Schmitt's contention, however, that in their preoccupation with "wissenschaftliche Objektivitat" (scholarly objectivity) Kelsen and other normativist thinkers had neglected the realities of political and sociological change.44 The normativists, Schmitt pointed out, had also failed to address the crucial problem of the exceptional case, which by definition precludes the possibility of binding it to a norm.45 And Schmitt was con41

Ibid., pp. 199-208; Ringer, Mandarins, pp. 240-241. Schmitt, Politische Theologie, p. 82. 43 Hans Kelsen, Der Soziologie und der juristische Staatsbegriffe: Kritische Untersuchung des Verhiiltnisses von Staat und Recht (Tubingen, 1922), pp. 23, 75-81, 253; Schwab, Challenge, pp. 47-53. See also Rudolf A. Metall, Hans Kelsen: Leben und Werk (Vienna, 1969). 44 Schmitt, Politische Theologie, p. 25. 45 Ibid., pp. 20-22, 29-33. 42

EARLY YEARS, 1888-1921

vinced that any legal philosophy that hoped to relate to the real world, particularly in Weimar Germany, must take into account the exceptional as well as the normal situation. The particular problem Schmitt had in mind was the Ausnahmezustand, a situation in which domestic order, or the very existence of the state, was seriously endangered by political or economic crises. It was a condition that could not be subsumed by the normative legal order, because a normal situation—public order and security—must be es­ tablished before norms could have any meaning. "There is no norm," he wrote, "which would be applicable to chaos."46 From Schmitfs perspective, the crucial legal question was, "Who decides?" Who would decide when an Ausnahmezustand existed and what would be required to meet this crisis?47 He asserted that Entscheidung (decision), not norms, would be the determining factor in such cases. Con­ sequently, sovereignty resides not in the constitution but with the person or group authorized to make these deci­ sions. Schmitt opened Politische Theologie by declaring, "Sovereign is he who decides on a state of exception."48 Norms or laws cannot be sovereign because they cannot decide when a state of exception exists, nor how to coun­ teract it. "No law," Schmitt wrote earlier, "can execute itself, only men can be designated as the defenders of laws. . . ."49 Moreover, it would be impossible to predict the nature of an Ausnahmezustand, or to prescribe beforehand in any precise detail the legally permissible procedures needed to deal with unique and varying situations. A con­ stitution—the normative legal order—can at best indicate who assumes legal authority in an Ausnahmezustand and therefore who is sovereign.50 t6Ibid.,

p. 20. Ibid., pp. 11-13, 46. 48 Ibid., p. 11. 49 Schmitt, Der Wert, p. 83. 50 Schmitt, Politische rHwologie, p. 12. 47

PART I

Although a crisis may compel the sovereign to go beyond existing norms, even force him to suspend temporarily parts of the constitution, he still works within a legal framework. His authority emanates solely from the existing legal sys­ tem; constitutional deviations are allowed only insofar as they are directed at preserving the constitution and estab­ lishing the security under which the normative order can function. As Schmitt phrased it, the sovereign ". . . stands outside the normal legal order and yet belongs to it.. . ."51 And it was here that Schmitfs ideas on sovereignty, dic­ tatorship, and presidential power converged. The sover­ eign could declare a state of exception and thereafter in­ stitute a commissarial dictatorship to solve the crisis. In Weimar the Reich president shared sovereignty with the parliament because Article 48 empowered him to declare an Ausnahmezustand and to take appropriate measures only with the consent of the Reichstag.52So longas the Reichstag consented, the president would, according to Schmitfs interpretation, assume the role of commissarial dictator in a crisis situation. The Ausnahmezustand was by no means a hypothetical problem raised in a scholarly disputation between two legal theorists. It was an issue of immediate importance. Over the past several years the German state had been belea­ guered by so many crises that the Ausnahmezustand had become a common occurrence. Emergency situations would prove to be a heavy burden from which the republic would never escape; they would remain an integral part of Weimar political life.53 These experiences had profoundly affected Schmitfs legal thought. Just a few years earlier he had personally witnessed the collapse of public order during the communist revolution in Munich. At that time, the normative legal system had virtually ceased to function until the army and Free Corps had reestablished order 51

Ibid., p. 13. Ibid., p. 17. 53 Rossiter, Dictatorship, p. 33. 52

EARLY YEARS, 1888-1921

through force. And in similar incidents across Germany legal norms and procedures had become meaningless in the face of political chaos. While the normativists would dismiss these problems as political rather than legal, Schmitt felt that jurisprudence could not ignore a question on which the very survival of a legal order may depend. What Schmitt found so compelling about the Ausnahmezustand was that in it ". . . the power of real life breaks through the shell of a mechanism which has been hardened by repetition."54 54 Schmitt,

Politische Theologie, p. 22.

PART II BONN YEARS, 1922-1928: THE RISE TO INTELLECTUAL PROMINENCE

THREE

CHARACTER AND PERSPECTIVES OF A UNIVERSITY PROFESSOR

BY 1921, Schmitfs scholarship, his most recent works on dictatorship and sovereignty in particular, had placed him back on the path toward professional success. In the fall of that year, he received an appointment as a full professor of public law at the University of Greifswald. Although this was his first major academic position, he taught at Greifs­ wald for only one semester, moving to the University of Bonn by the spring of 1922.1 Greifswald, situated in the Baltic area of Prussia, had an atmosphere that was too alien for someone with Schmitfs Rhenish, Catholic tempera­ ment. He found Bonn much more compatible.2 Almost midway between the Moselle valley, where his ancestors had lived, and his familial home in the Sauerland, Bonn offered a more cheerful cultural milieu in contrast to the reserved Prussianism farther north. Rhinelanders were noted for their fun-loving lifestyle and, of course, the area was predominantly Catholic.3 The university was located near the romantic Rhine, which wound its way northward to Cologne after having passed through scenic valleys and a mountainous countryside. Certainly no one could guess that Bonn, a peaceful town with only 50,000 inhabitants, would ever serve as a capital, but it did host the major university of the Rhineland and that institution was the pride of the entire community. Both the university and the town elicited an immediate positive response from Schmitt. During his first semester he wrote: "Bonn is splendid. 1

Schmitt, "Lebenslauf." Bonn, Bilanz, p. 330. 3 Apfel, Reminiscences, pp. 2-3, 21. 2

PART II

Everything, lectures, practice sessions, etc. have the best results, so that I could be very satisfied. . . . Fortunately the sun of our thousand-year civilization and of humanity still shines here, despite the fact that the University of Bonn had been considered a Prussian outpost; I can at least breathe."4 Nevertheless, there is reason to believe that so far as Schmitfs private life was concerned his first years in Bonn were not happy ones. In 1922 he ceased publishing under the hyphenated name Schmitt-Dorotic, and in1924 his mar­ riage to Pawla Dorotic was annulled.5 Since Schmitt has always been very reticent about his personal life, the rea­ sons behind this annulment have remained shrouded in mystery. And all that is known about Schmitfs family life thereafter is that in 1926 he married Duschka Todorovitsch, a woman of Orthodox Serbian descent, and that five years later they had a daughter whom they named Anima.6 Schmitfs second marriage appears to have been quite suc­ cessful and his final years in Bonn seem to have been re­ warding ones from both a personal and professional point of view. It would be at Bonn that the academician from Plettenberg would rise to national prominence as a legal scholar and political publicist. Invariably, Professor Schmitfs con­ temporaries had the greatest respect for the quality of his intellect, if not always for the uses to which he put his talents. "The most gifted of my colleagues," wrote Moritz Julius Bonn, "was undoubtedly Dr. Carl Schmitt."7 Ernst Niekisch, one of Weimar's better known nationalist writ­ ers, later spoke of Schmitfs "sagacious and original mind."8 4 Schmitt

to Moritz Julius Bonn, June 16, 1922, Bonn Nachlass, No. 49,

BA. 5 Schwab, 6

Challenge, p. 15. Ibid.; Reichsministerium fir

Wissenschaft, Erziehung und Volksbildung,

R-21, Band 144, Mappe 39, BA. 7 Bonn, Bilanz, p. 330. 8 Niekisch, Gewagtes Leben, p. 241.

BONN YEARS, 1922-1928

Frequently, the word brilliant has been used to describe Schmitt.9 In Weimar, an age that overflowed with imposing intellectuals, such accolades were a special tribute. Those who knew Schmitt as a colleague, friend, or teacher also tended to regard him as a paradox. Not unaware of his own talents and originality of thought, Schmitt had a discernible streak of vanity, once expressing his sincere desire ". . . to find an oasis of practical discussion in the desert of barbarous stupidity in which we live."10 On an­ other occasion he asked Franz Blei: "Who in Germany could write the foreword to the second edition of my Politische Romantikl You cannot because you are too lazy, and all the others are too stupid."11 Even though this latter statement was no doubt intended to be taken lightly, it was still quite revealing. Intermixed with vanity, however, was a linger­ ing self-consciousness, perhaps indicative of a certain per­ sonal insecurity. Indeed, Schmitt was a man very much concerned with status and his public image. Beyond a close circle of family, friends, and students he never failed to display the proper professorial airs. Always perfectly poised and urbane, speaking with perfect form and diction, he rarely hesitated in search of the right word or phrase. Though such demeanor was typical for German professors of the day, Schmitt occasionally went to extremes, as when he addressed his wife as Frau Schmitt, or with the formal Sie, long after this practice had become an anachronism.12 And he could become rather disturbed when the expected rec­ ognition or respect was not forthcoming. His complaints about plagiarism, for example, were not unfounded, but he took these instances as a personal affront intended to 9

Ernst Fraenkel, The Dual State: A Contribution to the Theoryof Dictatorship (New York, 1941), p. 131; Craig, Germany, p. 494. 10 Schmitt to Moritz Julius Bonn, June 17,1926, Bonn Nachlass, No. 50, BA. 11 Blei, "Schmitt," p. 1218. 12 Author's personal interviews with Mrs. Edith Gurian, wife of Waldemar Gurian, South Bend, Ind., July 14-16, 1976; Niekisch, Gewagtes Leben, p. 242.

PART II

deny him the recognition he felt was rightly his.13 Such sensitivity was all the more revealing when one considers that he would remain for decades, without question, one of the most frequently cited legal scholars. More perplexing, Schmitt was, despite his public man­ nerisms, neither boring nor stodgy nor unapproachable. "He is not dull," wrote Franz Blei, "because he cannot be dull."14 Beneath his exterior formalism stood an unusually congenial, vibrant, witty personality, with a prepossessing charm. When out of the public eye, Schmitt was rather playful, engaging in merrymaking quite uncharacteristic of a German professor; he was even known to swing around a lamppost while laughing. As a young man Schmitt had tried his own hand at humor in a parody entitled Schattenrisse (Silhouettes), which he published with his close friend Fritz Eisler in 1913. Writing under the pseudonym Johan­ nes Negelinus, Mox Doctor, Schmitt and Eisler ridiculed among other things the cherished German value of inner cultural and intellectual development known as Bildung. Their farcical treatment of this subject included an appen­ dix with annotations for the "Ungebildete" and "Rules of Rhyme" for the "completely Ungebildete."15 Wine and hu­ mor were a tradition in any informal gathering with Schmitt. In such social circumstances he loved to make light of con­ cepts he would otherwise handle with the utmost serious­ ness, as when he defined an elite as a group of wealthy people who paid no income tax. Schmitfs wit, acuteness of mind, and penchant for paradoxes could enliven any discussion. And aside from fine company, what he relished most was good conversation. His somewhat pejorative def­ inition of the bourgeoisie as the "discussing class" might 13 Schmitt to editor of Duncker & Humblot, August 1,1925, Carl Schmitt, Personal Papers, Plettenberg-Pasel; Blei, "Schmitt," p. 1218. 14 Blei, "Gesprach," p. 519. 15 Johannes Negelinus, Mox Doctor (Fritz Eisler and Carl Schmitt), Schattenrisse (Leipzig, 1913). See also Josef Pieper, Noch wusste es niemand: Autobiographische Aufzeichnungen, 1904-1945 (Munich, 1976), p. 197.

BONN YEARS, 1922-1928

very well be invoked to describe him, for he thrived on discussion and the exchange of ideas. Not infrequently a conversation with Schmitt would last for more than four hours. His appetite for new, stimulating subjects and chal­ lenging ideas was insatiable. While engrossed in thought, Professor Schmitt could become so oblivious to his sur­ roundings that he would stop in the midst of traffic to explain the Hegelian notion of the cunning of reason or other ideas of similar import.16 At the age of ninety he would still take his guests walking for hours in the moun­ tains around his home, discussing literature, music, or pol­ itics, always interjecting the right amount of humor. Some of this esprit carried over into his lectures and writings, where he avoided the abstruseness of many pro­ fessors. Whether involved with analysis or conceptual for­ mulations, Schmitt always moved to the heart of a matter. Even before World War I he broke away from the ponder­ ous writing style for which German thinkers were so no­ torious, expressing his ideas in clear, crisp sentences that made his writing so distinguishably smooth and compre­ hensible. As Franz Blei noted, Schmitt wrote German as if it were Latin.17 Schmitt attributed his writing style to his early exposure to French through his mother, and to his study of classical languages. Any professor with such a facility for clarity and succinct argumentation who also generated so many stimulating ideas was bound to be popular with students. Schmitt's appeal was further enhanced by his reputation as a devoted teacher. Through friendliness and the personal interest he took in the intellectual development of promising students, 16 Important information on Schmitt as a teacher and on the attitude toward him held by German students in the 1920's has been provided by Professor Charles Robson, who, as an American student at the University of Bonn, studied with Schmitt. Robson is now professor emeritus at the University of North Carolina. Robson to Author, Chapel Hill, N.C., Jan­ uary 28, March 31, 1977. 17 Blei, "Gesprach," pp. 518-519.

PART II

he bridged the traditional gap between professor and stu­ dent.18 Although anyone as prolific as Schmitt would be especially aware of demands on his time, he was never too busy for a student. The personal relationship he established with his students in seminars, informal discussions, and frequent private sessions at his home endured for a life­ time. Out of Schmitfs seminars came Ernst Forsthoff and Ernst R. Huber, two prominent constitutionalists who con­ tinued to train young lawyers and legal scholars well into the Federal Republic. Most students retained their respect for Schmitt through the trying years that were ahead, even though many would be reluctant to state so publicly. During his first years at the University of Bonn, religion continued to influence Schmitfs thinking, and if he dis­ played any political partisanship at this stage in his life it was for the Catholic cause.19 His book on political Cathol­ icism, published in 1923, was nothing less than a reaffir­ mation of his allegiance to the Church.20 "This world has its hierarchy of values and its humanity," Schmitt pro­ claimed, "[and] in it lives the political idea of Catholi­ cism."21 In contrast to the materialistic trends of the modern world, he argued, the Catholic Church still recognized as significant the moral, psychological, and spiritual sides of man.22 Liberal capitalism and socialism were reducing life to a "process of production and consumption," in which politics became merely a means of satisfying economic in­ terests.23 But political Catholicism was not founded upon narrow economic or class interests, because the Church, as the "representative of Christ" on earth, served all hu18 Those who studied with Schmitt usually express great admiration for him as a teacher and scholar. Robson correspondence; Author's personal interviews with Riidiger Altmann, Bonn, February 24,1973, and Helmut Rumpf, Bonn, December 14, 1972, February 26, 1973. 19 Tommissen, Over, p. 95. 20 Carl Schmitt, IRSmischer Katholizismus und Politisehe Form (2nd ed., Munich, 1925). 21 Ibid., p. 30. 22 Ibid., p. 19. 23 Ibid., p. 24.

BONN YEARS, 1922-1928

manity and its mission extended far beyond the materi­ alistic needs of men.24 In essence, Schmitt was setting po­ litical Catholicism apart from the Interessenparteien (parties representing special interests) which he later chastised so often. In doing so, he showed that his Catholic heritage still colored his political perspectives. For the Catholic Cen­ ter Party was very much a guardian of its own special religious and institutional interests, something that Schmitt would finally realize over the next few years. These sharp philosophical and political distinctions aside, Schmitt did not, even at this point, view the Catholic Church as an intransigent institution aloof from the political real­ ities of this world. He observed that throughout history the Church, as a complexio oppositorum, had always proven itself sufficiently flexible to make necessary adjustments and alliances without compromising its intrinsic principles.25 In postwar Europe, Schmitt felt that the Catholic Church con­ fronted another unavoidable decision. Liberalism was still a strong opponent, but Bolshevism from the East, and from within, threatened the continued existence of western Eu­ ropean traditions and values. Under these circumstances, he stated that the Catholic Church as a political force must stand ". . . on the side of western civilization, nearer Mazzini than the socialism of the anarchistic Russians."26 That Schmitt favored cooperation between Catholics and the lib­ eral forces in Germany was definitely implied. The impact of this short book was widespread and im­ pressive. The famous canonist Hans Barion, then a young seminarian in Cologne, claimed that a single reading of this work changed his entire outlook and set the tone for much of his future scholarship.27 Outside Catholic circles, the reaction was similar, as evidenced by a long review in Der Ibid., pp. 20, 26. Ibid., pp. 6, 10. 26 Ibid., pp. 51-53. 27 Piet Tommissen, "Carl Schmitt—metajuristisch betrachtet: Seine Sonderstellung im katholischen Renouveau des Deutschlands der Zwanziger Jahre," Criticon, 30 (July/August 1975), p. 180. 24

25

PART II

Neue Merkur, a democratic journal which usually took a hostile attitude toward political Catholicism. Its Berlin po­ litical correspondent, Friedrich Sternthal, wrote: "It con­ tains so many keen observations . . . [that] no one should say a word about the Roman Catholic Church who has not read this little book."28 In 1925 the book was reprinted with the authorization of the German bishops in the series "Catholic Thought." With a single work Schmitt had ac­ quired a reputation as a Catholic publicist.29 While at Bonn, Schmitt associated mainly with members of Catholic intellectual circles and not, as often alleged, with representatives of the radical right. In the early twen­ ties a close relationship developed between Schmitt and Carl Muth, the founder and editor of the influential Cath­ olic journal Hochland, who was a major intellect in his own right.30 During visits and through a steady correspondence, the two thinkers exchanged ideas on a variety of subjects from romanticism to political theory. Muth found Politische Romantik especially fascinating, and on his trips to Paris he discussed the book with French intellectuals and clerics.31 Muth's respect for Schmitfs ideas is of particular impor­ tance because the former was known for his support of democracy in Weimar and later for his opposition to Na­ tional Socialism. For a short while, Schmitt established a similar friendship with the former Dadaist Hugo Ball, then in his Catholic phase. Ball was so inspired by his first read­ ing of a work by Schmitt that he exclaimed, ". . . as a Catholic thinker [this jurist] is a new type of Kant."32 Be28 Friedrich Sternthal, "liber eine Apologie der romischer Kirche," Der Neue Merkur, Heft 7 (1922/1924), p. 768. 29 Hermann Hefele, "Zum Problem einer Politik aus dem katholischen Glauben," Abendland, Jg. 2, Heft 7 (April 1927), p. 195. 30 Topner, "Katholizismus," p. 177. See also Konrad Ackermann, Der Widerstand der Monatschrift Hochland gegen den Nationalsozialismus (Munich, 1965). 31 Carl Muth to Schmitt, April 27, June26,1926, Schmitt, Personal Papers. 32 Hugo Ball, Briefe, 1911-1927 (Einsiedeln, 1957), pp. 164,171,191,194, 202-203, 298, 313.

BONN YEARS, 1922-1928

ginning in the summer of 1924, when Schmitt finally met this admirer, a very intimate relationship evolved between him and the Ball family. They corresponded regularly, with long letters, until things soured in 1925 as a result of un­ known personal differences. At the height of his enthusi­ asm for the Bonn professor, Ball published a long article in Hochland honoring Schmitt as a defender of Catholicism and European civilization.33 Among Catholic intellectuals, Waldemar Gurian, a Rus­ sian emigre of Jewish descent, was perhaps the most de­ voted early disciple of Schmitt. After bringing him to Ger­ many in 1911, Gurian's mother had her son convert to Catholicism in 1914; judging from his emotional attachment to his adopted country and to Catholicism, Gurian's na­ tional and religious conversions were complete.34 Before turning to free-lance writing, Gurian worked on the edi­ torial staff of the Kolnische Volkszeitung, and became one of the most prolific Catholic publicists of the latter half of the Weimar Republic. Although Gurian had already completed his university studies, he started attending Schmitf s sem­ inars at Bonn in 1924. Their personal relationship lasted for the duration of the republic and was not limited to mere intellectual discourse.35 The two families socialized fre­ quently, and Schmitt paid regular visits to Gurian's home in Godesberg, where young Catholic intellectuals gathered. While Schmitt was in Bonn, or even vacationing abroad, he maintained contact with Gurian through at least monthly correspondence.36 Intellectually Schmitt was clearly the dominant partner in this relationship and Gurian was never reticent about extolling the virtues of his mentor. Decades 33 Hugo Ball, "Carl Schmitts Politische Theologie," Hochland, Band 2 (April-September 1924), pp. 263-286. 34 Heinz Hurten, Waldemar Gurian: Ein Zeuge der Krise unserer Welt in der ersten Halfte des 20. Jahrhunderts (Mainz, 1972), p. 3. 35

36

Ibid., pp. 12-15.

Gurian-Schmitt correspondence (1924-1932), Waldemar Gurian, Per­ sonal Papers, South Bend, Ind.

PART II

later, Edith Gurian recalled that her husband's respect and admiration for Schmitt bordered on intellectual worship.37 The tremendous influence Schmitt exercised on Gurian's intellectual maturation and early writings is indisputable. In the foreword to his book on the political ideas of French Catholicism, Gurian acknowledged that countless conver­ sations with Schmitt between 1924 and 1926 had "contrib­ uted significantly" to clarifying his perspectives on the sub­ ject.38 Moreover, there were few discernible differences between the ideas of Gurian and those Schmitt held on parliamentarianism, political theology, and romanticism; Gurian's early writings were full of references to Schmitt. The general analytical framework employed by Gurian, as well as the terminology, was essentially Schmittian. Like Schmitt, Gurian also viewed the bourgeoisie as the "dis­ cussing class," romanticism as "subjective occasionalism," and the essence of democracy as the "identity between ruler and ruled."39 In his book on the Action Frangaise, Gurian emphasized the importance the "concrete situa­ tion" had on the development of that French royalist move­ ment.40 Almost half the articles Schmitt wrote in the 1920's were published by the Catholic press, mostly by Hochland and the Kolnische Volkszeitung. TTie staff at Germania, the major organ of the Center, also took note of the writings of this prominent exponent of political Catholicism. Paul Adams, a Berlin editor for the paper, followed Schmitt's publica­ tions with the utmost interest well into 1932.41 And it would 37

Gurian interviews. Waldemar Gurian, Die politischen und sozialen Idem des franzosischert Katholizismus 1789-1914 (Gladbach, 1929). 39 Ibid., pp. 218, 377; Waldemar Gurian, "Zur Soziologie der Wahlpropaganda," Archiv fir Politik und Geschichte, Vol. 3 (1925), pp. 585-589, and "Ein Traum von Dritten Reich," Hochland, Band 22 (1924/1925), pp. 237-242. *> Waldemar Gurian, Der integrate Natiomlismus in Frankreich: Charles Maurras und die Action Francaise (Frankfurt am Main, 1931), pp. 2, 124. 41 Correspondence between Gurian and Paul Adams (1924-1932), Gu­ rian, Personal Papers. 38

BONN YEARS, 1922-1928

be in Germania that Johannes Popitz later published his defense of SchmittyS latitudinarian interpretation of presi­ dential power. Although the Center Party would eventu­ ally have serious reservations about Schmitfs constitu­ tional theories, he was invited to deliver lectures at conferences sponsored by the party for most of the 1920's. His work on the Rhineland as an object of international politics was originally presented as a paper before the Rhenish Center Party, which subsequently published it in book form.42 In 1928 Schmitt joined Heinrich Briining at a conference of Catholic intellectuals and political leaders in Boppard, and later Schmitt fully supported the policies of the Catholic chancellor.43 Yet, a lingering distaste for party politics, and a desire to retain as much intellectual inde­ pendence as possible, prevented Schmitt from actually joining the party. His relationship to the Center remained one of religious conviction and intellectual support rather than direct political involvement. Catholics in general were usually committed to the con­ stitution. For years the Center Party remained a major pillar of the republican order.44 And Catholic law professors were more favorably inclined toward the republic than their nonCatholic colleagues.45 Most university professors were either hostile or indifferent in their attitudes about Weimar; en­ thusiasts were rare. Non-Catholic jurists such as Hermann Heller, Hans Nawiasky, and Gustav Radbruch, who ac­ tively supported the republic, were notable exceptions rather than the norm. But Catholic professors were far from ebul42 Carl Schmitt, Die Rheintande als Objekt internationaler Politik (Cologne, 1925). 43 Gottfried Treviranus, Das Ende von Weimar: Heinrich Briining urtd seine Zeit (Vienna, 1968), pp. 85-86. 44 Karl Dietrich Bracher, Die Aufldsung der Weimarer Republik: Eine Studie zum Problem des Machtverfalls in der Demokratie (Villingen/Schwarzwald, 1971), pp. 80-83; Hans-Jiirgen Puhle, "Conservatism in Modern German History," Journal of Contemporary History, Vol. 13, No. 4 (October 1978), p. 694; Craig, Germany, p. 504; Holborn, Germany, pp. 533-534. 45 Laqueur, Weimar, p. 187.

PART II

lient.46 Nationalism and the traditional Catholic respect for authority, combined with the fear that Bolshevism endan­ gered Christian values and western culture, assured that Catholics would continue to look askance at Versailles and the weakness of Weimar. While he supported the republic, Schmitfs statements on Weimar echoed this dissatisfac­ tion. In his lectures Schmitt provided a blunt analysis of the current practice of parliamentary government and chal­ lenged the legality of the Versailles Diktat.47 From an aca­ demic point of view, this criticism was quite sound. But the academician's tendency to seek incisive analyses over­ rode good political sense. Like so many Weimar intellec­ tuals, Professor Schmitt laid bare the deficiencies of the system without considering the demoralizing effects his criticism would have on German society. Among the most attractive aspects of Schmitt's writings and lectures was their relevance to the contemporary po­ litical situation. Schmitt was one of the few law professors involved in studying politics; most of the courses he taught at Bonn were not in jurisprudence but in what would today be called political science. Aside from an occasional seminar by Erich Kaufmann, Schmitt was the only professor on the law faculty to offer such courses. As early as 1922, he sched­ uled a course on political ideas and even his introduction to government now had the subtitle "politics."48 Until this time, a major obstacle to responsible participation in the political process was the lack of political education of the average German citizen as well as of the intellectuals. "The most serious opposition that the republican idea encoun­ ters in Germany," Thomas Mann recognized, "arises from the fact that the German man and Burger has never in­ cluded the political element in his conception of education. . . ."*9 But the introduction of democracy and all the prob«Ibid., p. 13. 47 Robson correspondence. 48 Verzeichnis der Vorlesungen an der Rheinischen Friedrich-Wilhelms-Universitat zu Bonn, 1922-1928, University Archives, Bonn. 49 Craig, "Engagement," p. 63.

BONN YEARS, 1922-1928

lems this entailed for Weimar had created an increasing political consciousness among many German students and intellectuals; they were now eager for such studies. Still, traditional educational institutions did little to al­ leviate the problem of the apolitical German; university professors in particular retained their prewar aversion to politics. Consequently, political science remained a highly controversial discipline in Weimar and would not be granted the status of an independent field of study.50 Before World War I, political science had merely served as an auxiliary discipline to public law; the political treatises of Treitschke and others never reached a level acceptable in academia. Among academicians, the important subjects of public opinion, the nature of political parties, and interest groups were either totally ignored or handled on the periphery of legal studies.51 There were exceptions, but jurists such as Georg Jellinek and Fritz Stier-Somlo, who declared "We must also become a political people,"failed to acquire wide­ spread professional support for their work in political sci­ ence.52 Most law faculties never overcame their skepticism, and for the duration of the republic jurists debated the relationship between law and politics without arriving at any consensus.53 The Deutsche Hochschule fiir Politik, opened in Berlin in 1920 for the purpose of educating Ger­ mans in political affairs, though promising, remained an exception. Thus, while at Bonn, Schmitt was part of that small vanguard of professors who pioneered in the devel­ opment of German political science. In the process he did not, as so many of his colleagues had feared, substitute propaganda for scholarship, nor did he become a political activist. 50

Laqueur, Weimar, pp. 207-208. Peter Gay, Weimar Culture: The Outsider as Insider (New York, 1970), pp. 37-39. 52 Fritz Stier-SomJo, Politik (Leipzig, 1911), p. 173. 53 Ulrich Scheuner, "Die Vereinigung der Deutschen Staatsrechtslehrer in der Zeit der Weimarer Republik," Archiv des offentlichen Rechts, Band 97, Heft 3 (September 1972), pp. 359-361. 51

PART II

Each crisis would increase Schmitt's popularity, and in turn his writings reinforced the sense of disillusionment felt by many Weimar intellectuals. But Schmitt did not seek the downfall of the republic; revolutionary change was an­ tithetical to his entire political philosophy. Schmitt voiced harsh criticism of the Weimar system, but there was much to criticize. As a scholar, he felt obligated to identify the problems that threatened to bring Weimar from instability to total collapse, and to provide thorough analyses of press­ ing contemporary issues. Weimar's political misfortunes had generated countless publications by democratic writers such as Moritz Julius Bonn, Carl Landauer, and Alfred Weber dealing with the problems of democracy from the perspective of parties, socialism, and economic interest groups.54 That the term crisis appeared so often in the titles of such works was indicative of the times and the wide­ spread mood of distress; it did not necessarily mean that these writers thought Weimar was doomed. There were many rightist political publicists, however, who had absolutely no interest in balanced analyses aimed at rectifying the problems plaguing the existing system. Weimar was a manifestation of everything they detested— weakness, democracy, cultural decline. They waged an in­ cessant campaign against the republic and looked forward to its demise. Foremost among these writers was a diverse grouping of intellectuals associated with the conservative revolutionary movement who were united only by their hostile anti-republicanism and by their vague doctrine of a national revolution.55 It was their belief that the conser54 See Moritz Julius Bonn, Die Aufldsung des modernen Staates (Berlin, 1921), and Die Krisis der europaischen Demokratie (Munich, 1925); Carl Lan­ dauer, Uber die besonderen Schivierigkeiten des Parlamentarismus gegenuber Problemen moderner Wirtschaft (Tubingen, 1924); Alfred Weber, Die Krise des modernen Staatsgedankens in Europa (Stuttgart, 1925). 55 The best studies of the conservative revolution are Klemperer, Con­ servatism; and Armin Mohler, Die Konservative Revolution in Deutschland, 1918-1932: Ein Hendbuch (2nd ed,, Darmstadt, 1972). See also Walter Struve, Elites against Democracy: Leadership Ideals in Bourgeois Political Thought in Germany, 1890-1933 (Princeton, 1973), pp. 219-231.

BONN YEARS, 1922-1928

vative revolution would usher in what Moeller van den Bruck called a "Third Reich" and others referred to as the "New State," a system under which the ideals of German conservatism and nationalism could be realized. But they failed to develop any coherent point of view as to the actual nature of this new conservative Reich, or regarding the means to achieve it. Some fostered Oswald Spengler7S no­ tions of a Prussian socialism that would unite all Germans at the expense of liberalism and capitalism, while others such as Wilhelm Stapel tried to retain a link between the rightist movement and Christianity. Whether the conser­ vative revolution would consist of an actual revolution or a nationalistic revival of traditional German values re­ mained unclear. They all, of course, displayed a distinct inclination toward extremism, irrationalism, and cultural pessimism; many were convinced volkisch or racist thinkers. Schmitt's reservations about Weimar, particularly his cri­ tique of parliamentary government, have led many histo­ rians to mistakenly associate him with the conservative revolution.56 Yet, Schmitt did not associate with conser­ vative revolutionaries before he moved to Berlin, or before Weimar reached its final crisis in 1929; even then, he never supported the goals articulated by members of these circles. While throughout the 1920's Schmitt was frequently invited to deliver lectures at the republican Hochschule fur Politik, he was neglected by rightist organizations such as the Politisches Kolleg and the conservative intellectuals affiliated with Hans ZehrerrS publication Die Tat. Schmitt's name does not appear on any of the surviving membership or 56 See Craig, Germany, p. 494; Martin Greiffenhagen, "The Dilemma of Conservatism in Germany/' Journal of Contemporary History, Vol. 14, No. 4 (October 1979), p. 616; Puhle, "Conservatism," p. 709; Robert A. Pois, Friedrich Meinecke and German Politics in the Twentieth Century (Berkeley, 1972), p. 112; George L. Mosse, Germans and Jews: The Right, The heft, and The Search for a "Third Force" in Pre-Nazi Germany (New York, 1970), pp. 116-117, 128, and The Crisis of German Ideology: Intellectual Origins of the Third Reich (New York, 1964), pp. 283-285. However, neither Schwab, Challenge, nor Klemperer, Conservatism, support the notion of Schmitt as a conservative revolutionary.

PART II

contributor lists of conservative revolutionary organiza­ tions. The files of the Politisches Kolleg contain only a single reference to Schmitt, a request made in 1929 to the Rheinischer Beobachter for a copy of his article on the Rhineland.57 Before this date Schmitt published nothing in any journal of a conservative revolutionary nature. Between 1930 and 1933, a few of his articles appeared in Der Ring and Deutsches Volkstumf but these dealt with the immediate crisis and the exercise of state power to preserve the ex­ isting legal and political order. Like all conservatives, Schmitt naturally had certain gen­ eral philosophical affinities with the exponents of the na­ tional revolution, such as a pessimistic view of human na­ ture. But this was also true of Weber and Meinecke, prime examples of Vernunftrepublikanem, who sought the reali­ zation of conservatism within the new republican frame­ work.58 And any comparison of Schmitt's outlooks on pol­ itics and society with those of conservative revolutionaries would reveal essential differences. Two significant aspects of conservative revolutionary thought were anti-modern­ ism and irrationalism. Intellectuals of the radical right had labeled Weimar culture, particularly expressionism and other modern forms of artistic experimentation, as Kulturbolshevismus, signs of decadence and cultural decay. However, although Schmitt lamented the secularization and mecha­ nization of society, he was not antagonistic toward modern intellectual and cultural trends. His close friends, artists whose works he truly admired, the poet Theodor Daubler and the writer Franz Blei, were expressionists. And though irrationalism was prevalent in expressionism, it would be inaccurate to construe from Schmitfs appreciation of this form of creativity, or from his understanding of the irra57 Politisches Kolleg R-118, Nos., 15, 21, 28, 34, 35, 46, 63, 64, BA; Herr renklub membership list cited in Deutscher Herrenklub (n.d.), Kurt von Schleicher Nachlass, N42, No. 7, Militararchiv, Freiburg. See also the ap­ pendix in Hans Joachim Schwierskott, Arthur Moeller van den Bruck und der revolutiondre Nationalismus in der Weimarer Republik (Gottingen, 1962). 58 Klemperer, "Conservatism," pp. 17-32, 92-96.

BONN YEARS, 1922-1928

tional aspect of man in general, that he shared the irrational political ideas of certain members of the conservative rev­ olutionary movement. Schmitfs political theory was not irrational and he never promoted irrationalism or nihilism as a political doctrine. In an age of mass politics he was particularly cognizant of the political significance of irra­ tional behavior and the power of myth, but he regarded such irrationalism in the political sphere as dangerous.59 As Walter Laqueur, a critic of Schmitt, has noted, "His critique of the Weimar Republic was closely reasoned, based on a wide reading in history and political philosophy," and "Schmitt's doctrine was perfectly rational, once one ac­ cepted its premises. . . Z'60 Moreover, though Schmitt was a nationalist, his intellectual cosmopolitanism set him apart from volkisch thinkers and those conservatives who habit­ ually glorified German Kultur. Schmitt was not a racist and his intellectual heritage was European rather than purely German. He had a love for English and French literature, and his Catholicism had instilled in him a lifelong fondness for Latin culture. Significantly, Hobbes, Machiavelli, the Spanish conservative Donoso Cortes, and the French phi­ losopher Jean Bodin were the thinkers with whom Schmitt identified intellectually.61 99 Carl Schmitt, "Die politische Theorie des Mythus," in Schmitt, Positionen und Begriffe im Kampf mit Weimar—Gerif-Versailles, 1923-1939 (Hamburg, 1940), p. 17. Among those works which describe Schmitt as an exponent of an irrational political philosophy are Christian Graf von Krockow, Die Entscheidung: Eine Untersuchung Uber Ernst Jiinger, Carl Sdanitt, und Martin Heidegger (Stuttgart, 1958); Heinrich Wohlgemuth, Das Wesen des Politischen in der heutigen neoromantischen Staatslehre—Eine methodischer Beitrag zu seiner Begriffsbildung (Erlangen, 1933), pp. 194-202; Peter Pattloch, Recht als Einheit von Ordnung und Ortung: Ein Beitrag zum Reehtsbegriff in Carl Schmitts "Nomos der Erde" (Aschaffenburg, 1961); Franz Neumann, Behemoth: The Structure and Practice of National Socialism, 1933-1944 (New York, 1963), p. 45; Hugo Fiala (Karl Lowith), "Politischer Dezisionismus," Internationale Zeitsehrift fur Theorie des Reehts, Jg. 9, Heft 2 (1935), pp. 108111. 60 Laqueur, Weimar, pp, 99, 101. 61 Rumpf, Schmitt, pp. 56-60; Schwab, Challenge, pp. 20-23, 45-47; Carl

PART II

Schmitfs works were of the highest scholarly quality, they contained no references to the second-rate writings of Spengler or Moeller van den Brack, and he lent no cre­ dence to their ideas or political goals. Schmitt made a con­ scious effort to disassociate himself from those rightist pub­ licists whose writings he considered of dubious intellectual value. One such thinker was Othmar Spann, an Austrian whose ideas about an "organic" or "corporate" state greatly influenced many of the conservative revolutionaries in Ger­ many.62 When Schmitt learned that Spann was also con­ tributing to a particular collection of philosophical essays, he immediately withdrew his own article in order to pre­ vent his name and ideas from being associated with Spann's school of thought. In a forceful letter to the editor of this publication, Alfred Baumler, Schmitt wrote: ". . . the cru­ cial differences between Prof. Othmar Spann and me are so great that, in my opinion, cooperation on a publication to which both of us would contribute is impossible . . . I refuse to appear on his side in print, not merely because he belongs to a circle which systematically ignores my work, and which in principle does not cite my name, but also because I currently take a problem such as political phi­ losophy too seriously. . . Z'63 A contribution by Spann, Schmitt said in essence, would mean that this publication would cease to be a work of philosophy and would become an "intellectual magazine." During his Bonn years, Schmitt was not generally per­ ceived as a rightist ideologue. On the contrary, he was a highly respected university professor, whose scholarship Schmitt, "Donoso Cortgs in Berlin (1849)," in Yiiederbegegnung von Kirche utid Kultur in Deutschland: Eine Gabe fur Karl Muth (Munich, 1927), pp. 338373, and "Der unbekannte Donoso Cortis" Hochland, Jg. 27, Heft 12 (Sep­ tember 1929), pp. 491-496. 62 Klemperer, Conservatism, pp. 122-123; Struve, Elites, pp. 323-327. 63 Schmitt to Dr. Alfred Baumler, August 6, 1925, published in Piet Tommissen, "Problemen round de houding van Carl Schmitt in en na 1933," Liber Memorialis (Limburg, 1979), pp. 180-181.

BONN YEARS, 1922-1928

was valued by intellectuals of a variety of political and ideological persuasions. This point is best illustrated by the influence Schmitt had on the ideas of Otto Kirchheimer and Walter Benjamin, two of the more prominent members of the renowned leftist Frankfurt School. Kirchheimer, who subsequently became a well-known political scientist and activist in the Social Democratic Party, had studied with Schmitt and integrated many of his mentor's ideas into his early writings.64 In "The Socialist and Bolshevik Theory of the State," Kirchheimer7S dissertation at the University of Bonn, he relied heavily on Schmitt's concepts of dictator­ ship and the Ausnahmezustand.65 Those who have studied Kirchheimer7S writings have pointed out that in "Weimar— And What Now?" the analysis of the Weimar constitution he wrote in 1930, Kirchheimer tried to combine the ideas of Schmitt with those of Marx.66 Similarly, Benjamin, one of Weimar's most widely recognized essayists, considered Schmitt a significant influence on his own thought. In his classic study, The Origins of German Tragedy (1928), Benja­ min used Schmitfs ideas on sovereignty and the Ausnahmezustand, and he personally acknowledged his intellectual debt to Schmitt in 1930.67 "You will very quickly notice," Benjamin wrote to Schmitt, "how much the book owes to 64 Martin Jay, The Dialectical Imagination: A Histoiy of the Frankfurt School and the Institutefor Social Research, 1923-1950 (Boston, 1973), pp. 147-150. 65 Otto Kirchheimer, "The Socialist and Bolshevik Theory of the State," in Politics, Law, and Social Change: Selected Essays of Otto Kirchheimer, ed. Frederic S. Burin and Kurt L. Shell (New York, 1969), pp. 3-21. 66 Otto Kirchheimer, "Weimar-And What Then?" Selected Essays, pp. 33-74; Jay, Dialectical Imagination, p. 148. 67 Walter Benjamin, Ursprung des Deutschen Trauerspiels, in Gesammelte Schriften, ed. Rolf Tiedemann and Hermann Schweppenhauser, (Frank­ furt am Main, 1974), Band 1, pp. 245-246, 412-413. For an analysis of Benjamin's use of Schmitf s ideas see Bernd Witte, Walter Benjamin: Intellektuelle als Kritiker, Untersuchungen zu seinem FrUhwerk (Stuttgart, 1976), pp. 112-113, 130, 216, 220, and Michael Rumpf, "Radikale Theologie: Benjamins Beziehung zu Carl Schmitt," in Walter Benjamin: Zeitgenosse der Modeme, ed. Peter Gebhardt and Martin Grzimek, (Kronberg, 1976), pp. 37-50.

PART II

you in its description of the theory of sovereignty in the 17th century. . . . I have also found in your later works, above all the 'Dictatorship' and your research in legal phi­ losophy, a confirmation of my own research methods in aesthetic philosophy."68 Schmitfs reputation as a scholar and dynamic lecturer, but perhaps more importantly his frank assessment of Wei­ mar and Versailles, did attract the attention of many rightist anti-republican students. At Bonn, as at most universities, the right-wing student corps constituted the largest and most vocal group among the politically conscious segments of the student body.69 They flocked to SchmittrS courses not in the pursuit of a scholarly evaluation of the political and constitutional system, but in search of a confirmation of their negative emotional responses to this new experi­ ment in democracy. Hearing what they wanted to hear, they disregarded the rest. While every statement Schmitt made about the failings of liberalism found a waiting au­ dience, his call for establishing stability through the exist­ ing constitutional order fell on deaf ears. Each time Schmitt accurately pointed out a defect in the Weimar system, he merely reinforced the anti-republicanism of most of his young listeners. However, those serious students who worked closely with Schmitt did grasp the intricacies of his thoughts on the German state and constitution. In his inaugural dis­ sertation on the Ausnahmezustand and federalism, written under Schmitfs direction, Ernst Forsthoff reiterated the interpretation of his teacher that constitutional emergency powers were designed to defend the constitution and not to institute a sovereign dictatorship.70 Another of Schmitt's more distinguished students, Ernst Friesenhahn, was later appointed to the Constitutional Court of the Federal Re68 Walter Benjamin to Schmitt, December 9, 1930, Schmitt, Personal Papers. m Robson correspondence; Apfel, Reminiscences, pp. 21, 22. 70 Ernst Forsthoff, Der Ausnahmezustand der Lander (Bonn, 1925).

BONN YEARS, 1922-1928

public. Friesenhahn's dissertation, The Political Oath, was an expansion on Schmitt's idea that a president was bound by his oath to defend the essence of the Weimar consti­ tution. "Loyalty to the constitution is therefore only com­ prehensible," Friesenhahn wrote, "if one grasps the "con­ stitution' in the sense of the new definition provided by Carl Schmitt. . . . Whoever swears loyalty to the Weimar constitution, thereby takes an oath to the republic and has the obligation 'to support actively' this constitution and the republican form of government established by it."71 It was truly unfortunate that these crucial elements in Schmitf s constitutional and political theory were not more widely understood. 71 Ernst Friesenhahn, Der politische Eid (Bonn, 1928), pp. 121-123; Tommissen, "Problemen," p. 169; Schmitt, Verfassungslehre, pp. 27-29.

FOUR

PARLIAMENTARIANISM VS. PRESIDENTIAL POWER

THE sleepy university town of Bonn, though far from the major power struggles in Berlin, did not isolate Schmitt from the political problems plaguing Germany. Less than a year after Schmitt arrived in Bonn, the country again lapsed into turmoil. It would be several years before the nation could recover even a perceptible degree of stability. Schmitt spent his first years at the university grappling with the problems caused by political instability and by the centrifugal forces debilitating the republic. These were challenging times for anyone studying politics. It was ex­ ceptionally difficult to retain a sense of scholarly detach­ ment when every discussion concerning government or political institutions brought one face to face with a wide range of contemporary problems.1 But to even the most impartial political observer, it was clear that the sources of many of Weimar's ills were a weak parliamentary system and the current practice of party politics. In its first five years the country had six different chan­ cellors; the inefficacious Weimar parliament would beget twenty-one separate coalition governments within its short history. At times only the efforts of determined leaders in the executive branch kept the government functioning at all and saved the country from disintegration. The au­ thoritarianism of the Second Reich had prevented the Ger­ mans from developing a tradition of compromise so nec­ essary for self-government in a pluralistic society, and had left Germany divided into irreconcilable social groups. As a consequence, Weimar parties represented specific and 1 Ringer,

Mandarins, pp. 227-228.

BONN YEARS, 1922-1928

antagonistic class interests and ideologies; the welfare of the nation, though frequently mentioned, was usually seen through the spectacles of one's own party. With no ex­ perience in governmental responsibility, these tightly or­ ganized and disciplined Weltanschauung and lnteressen par­ ties inhibited the formation of viable majorities and repeatedly paralyzed the government.2 In the popular mind, the term Politiker, previously a title of little esteem, more and more conjured up the image of the Bonzen, or party bosses.3 Several parties refused to recognize the Weimar order as legitimate, whereas those which accepted the constitution could find no firm basis for lasting cooperation. Although the Social Democratic Party (SPD) was devoted to the re­ public, it remained essentially a class party, whose Marxist rhetoric continued to alarm the bulk of middle-class voters. Large segments of the middle classes had originally ac­ quiesced in the establishment of the republic only because they saw it as a bulwark against Bolshevism and as a means to a more lenient peace. With the exception of that minority of liberals associated with the German Democratic Party (DDP), middle-class enthusiasm for the republic remained quite limited. Most middle-class liberals followed Gustav Stresemann's German People's Party (DVP), which, though it tolerated Weimar, was too nationalistic and too closely tied to business interests to form a durable coalition with the SPD. Further to the right, the reactionary German Na­ tionalist People's Party (DNVP) sought a return to an au­ thoritarian government and rejected the very idea of rec­ onciliation with the left. Complicating this political morass were numerous splinter parties. The two most extreme 2 Sigmund Neumann, "Germany: Changing Patterns and Lasting Prob­ lems," in Modern Political Parties: Approaches to Comparative Politics (Chi­ cago, 1956), pp. 354, 365; Biacher, Die Aufldsung, pp. 19-28; Ferdinand Hermens, Democracy or Anarchy? A Study of Proportional Representation (Notre Dame, Ind., 1941), p. 71. 3 Craig, Germany, p. 499.

PART II

groups, the National Socialists (NSDAP) and communists (KDP), were avowed enemies of the republic which refused to cooperate with any government. Only the Catholic Cen­ ter Party, which cut across class lines and encompassed diverse economic interests, offered a possibility for com­ promise with both sides of the political spectrum. Its broad social constituency made the Center the pivotal party in the Weimar system; every coalition required its participa­ tion. But despite its loyalty to the constitution and its com­ mitment to preserving the stability of the republic, the Cen­ ter was still a Weltanschauungspartei, whose politics were often motivated by its exclusive religious and institutional interests.4 In addition, the intellectual critique of liberalism and ra­ tional politics, which began before World War I and now pervaded twentieth-century political thought, did little to encourage faith in democratic institutions. Political and so­ cial theorists throughout Europe had exposed the discrep­ ancy between the liberal ideology and the actual process of party politics. While Marxists continued to condemn parliament as an instrument of the ruling class, writers such as Robert Michels and Gaetano Mosca argued that parlia­ ments, rather than representing the will of the people, were controlled by elites. These critics viewed political parties as essentially self-perpetuating oligarchies ruling in their own interest.5 Similarly, an increasing emphasis on the irrational element in political behavior further undermined the liberal assumption of rational individuals engaging in self-government. The works of Vilfredo Pareto, Georges Sorel, and Max Weber emphasized the irrational in human nature, showing the power of myth and charismatic lead­ ership as motivating political forces.6 At the same time, it 4 Werner Conze, "Die deutschen Parteien in der Staatsverfassung vor 1933/' in Das Ende der Parteien 1933, ed. Erich Matthias and Rudolf Morsey (Diisseldorf, I960), pp. 3-27; Bracher, Die Auflosung, pp. 58-115. 5 Hughes, Consciousness and Society, pp. 249-277. 6 Struve, Elites, pp. 123-124.

BONN YEARS, 1922-1928

was becoming evident that traditional liberal institutions were incapable of handling the influx of the masses into the political process. Contrary to the liberal ideal of peaceful compromise, parliaments served as the battleground for a confrontation between mass political parties. Thus, when the Germans started their first real experi­ ment in democratic government, liberalism was already on the defensive in Europe. It appeared to many Germans that the deficiencies of their own system confirmed what the intellectual critics of liberalism had claimed since the end of the nineteenth century. And in 1923, public confi­ dence in the Weimar Republic dropped to an all-time low as a result of the catastrophic inflation and domestic strife that followed the French occupation of the Ruhr in January. The ineffective response of the German government heightened the feelings of frustration and helplessness, adding further credibility to the argument that republican institutions were incapable of providing Germany with a viable government.7 It was in this atmosphere of renewed crisis and growing disillusionment that Schmitt joined the debate on liberal politics, publishing a short, quickly written book on con­ temporary parliamentarianism.8 Whereas other critiques of parliamentary government stressed the difficulties caused by proportional representation and interest groups, Schmitfs treatise had as its focal point the philosophical foundations of parliamentarianism. It was his contention that no polit­ ical system could rest solely upon either sheer force or the technical procedures of government.9 At the heart of every political system was a series of philosophical assumptions from which that system derived its legitimacy and author­ ity. "To the political belongs the idea," he wrote, "because there is no politics without authority, and no authority 7

Craig, Germany, 434-435. Carl Schmitt, Die geistesgeschichtliche Lage des heutigen Parlamentarismus (2nd ed„ Berlin, 1926). 9 Ibid., pp. 12-13. 8

PART II

without an ethos of belief."10 Modern parliamentarianism, however, had strayed so far from its original "moral and intellectual" foundations that it was becoming an "empty apparatus" that would be defenseless against ideologically motivated movements such as Bolshevism and fascism.11 Future reform proposals, he held, could be properly con­ sidered only in the context of the intellectual (geistige) crisis of liberalism.12 After examining two centuries of liberal political theory, Schmitt identified the distinctive feature of parliamentari­ anism as "public discussion."13 This essential element, which had its intellectual roots in the rationalist metaphysics of the Enlightenment, could be found in the writings of Locke and Montesquieu, as well as in those of nineteenth-century liberals such as Bentham, Guizot, and John Stuart Mill. It was assumed that the free expression of contrasting opin­ ions by parliamentary deputies would result in rational and balanced decisions, and that laws would be enacted through this process of rational public debate as opposed to the secret cabinet politics of absolutist governments. Moreover, the close scrutiny of a free press and public opinion would act as checks against corruption and the arbitrary exercise of power. Ideally, "la discussion substituee ά la force," and social progress would follow this victory of law over Macht.14 But the realities of parliamentary and party practice bore little resemblance to the liberal ideal. Instead of open par­ liamentary debate, small party committees or party coali­ tions convened secretly to decide the political fate of Ger­ many. This practice allowed the parties to avoid responsibility and reduced public discussion to an idle formality follow­ ing the decision-making process.15 In essence, parliament 10 11 n 13 14 15

Schmitt, Rdmischer Katholizismus, p. 23. Schmitt, Parlamentarismus, p. 30. Ibid. Ibid., p. 43. Ibid., pp. 45-61. Ibid., p. 62.

BONN YEARS, 1922-1928

had become ". . . a poor facade covering the rule by parties and vested economic interests."16 And for this reason, Schmitt concluded that "... parliament, as it had devel­ oped in the nineteenth century, had lost its previous foun­ dation and meaning."17 While parliamentary government was contributing to its own decline by failing to approximate liberal ideals, the philosophical rationalism on which the entire system of liberal politics rested was at the same time threatened by the irrational political doctrine of "direct action."18 Origi­ nating with the nineteenth-century anarchists, the theory of direct action received its modern formulation in Sorel's writings on myth and violence and in Bergson's concept of έΐαη vital. Contrary to the liberal notion of rational men engaged in representative government, these thinkers as­ serted the fundamental irrationality of man; what men val­ ued arose not out of reasoning, but from instinct and in­ tuition. Myths, not rational discussion, filled the masses with enthusiasm and provided them with the courage for direct action and martyrdom.19 To those motivated by myth, Schmitt argued, the bourgeois ideal of peaceful compro­ mise from which all will benefit was treasonous. Each myth, whether it be that of the class or that of the nation, was viewed as a self-evident, absolute moral truth; its goals must be pursued until the movement had triumphed over its enemy.20 The attractiveness of direct action and the power of ir­ rational political movements, Schmitt believed, had been demonstrated in Bolshevist Russia and fascist Italy. In Rus­ sia the rationalism of Marxist theory had evolved into the myth of the class struggle. The class myth, which desig­ nated the bourgeoisie as the ultimate enemy, had then 16 17 18 19 20

Ibid., p. 29. Ibid., p. 63. Ibid., pp. 77-79. Ibid., p. 80. Ibid., pp. 81-83.

PART II

merged with the national myth and Russia's traditional hatred of the sophisticated civilization of the West.21 Much more ominous for the West, however, was the success of Italian fascism, because it had shown the fragility of liberal institutions and pointed to an uncertain future for parlia­ mentary government. Whereas Russia had been ruled by an anachronistic monarchy, a constitutional parliamentary government in the liberal Anglo-Saxon tradition had ex­ isted in Italy.22 Yet Italy had recently been overwhelmed by a popular movement based upon a revived national myth. It should be clear from the Italian example, Schmitt asserted, that "The great psychological and historical sig­ nificance of the theories of myth cannot be denied," and that the rationalism underlying liberal political theory had lost its dominant position.23 Therefore, Schmitt took little comfort in the liberal contention that, despite its current debility, no acceptable substitute for parliamentary gov­ ernment had been discovered. That argument, he noted at the conclusion of his book, would surely prove futile when the political power of myth, in the form of radical mass movements, confronted parliamentarianism. As the day of reckoning approached, a simple reiteration of the phrase "Parlamentarismus, was sonst?" (parliamentarianism, what else?) would not alone be sufficient ". . . to revitalize the age of discussion."24 When Schmitt's book appeared in the summer of 1923, the republic faced a precarious future; the turmoil contin­ ued unabated, and the worst was yet to come. With no end in sight to the inflation and the Reichstag failing to provide solutions, the radicals renounced the parliamen­ tary path to power in favor of direct action. By fall, the communists had resorted to violence and incited revolu­ tions in Hamburg, Saxony, and Thuringia; meanwhile, a 21

Ibid., pp. 87-88. p. 89. Ibid., pp. 87, 89. Ibid., p. 90.

aIbid., 23 24

BONN YEARS, 1922-1928

Rhenish separatist movement fostered by the French had emerged in October, followed a month later by the aborted Nazi Putsch in Munich. That the republic survived this lat­ est series of assaults was due only to forceful executive action, as President Ebert had declared an Ausnahmezustand under Article 48, and in September he had authorized the army to restore order.25 And the resignation of Chancellor Gustav Stresemann at the end of November was yet an­ other sign of governmental instability. The frequent change of chancellors and governments, which had become the Weimar pattern, was symptomatic of the deeply rooted political problems caused by ideological and class divisions within the nation. In his timely analysis, Schmitt had ob­ viously raised many valid questions about the current state of parliamentary government in Germany. The cogency of Schmitfs arguments was quickly rec­ ognized by several intellectuals. Schmitfs liberal friend Moritz Julius Bonn expressed his ". . . admiration for the exceedingly sharp formulations and the competence with which [Schmitt] always pursued a subject."26 Although Bonn continued to argue that parliament was an institution where "negotiations" and "compromises" took place between in­ terest groups, and though he viewed such "bargaining" as an essential part of any parliamentary system, he agreed that the ideological aspects of parliamentarianism that Schmitt had stressed were equally important. Similarly, to support his own thesis, the Social Democratic sociologist Robert Michels cited Schmitfs book in the preface to the second edition of his famous work on political parties.27 And Karl Mannheim made use of Schmitfs book in Ideology and Utopia and other writings. Mannheim accepted com­ pletely Schmitt's contention that rational public discussion 25 Craig,

Germany, pp. 461-467; Eyck, Weimar Republic, I, p. 269. Moritz Julius Bonn to Schmitt, June 11,1926, Bonn Nachlass, No. 50. 27 Robert Michels, Zur Soziologie des Parteruxsens in der modemen Demokratie: Untersuchungen Uber die oligarchischen Tendenzen des Gruppenlebens (Stuttgart, 1970), p. xxvm. 26

PART II

was the essence of parliamentarianism, and that this fun­ damental principle was threatened by the theories of myth and direct action as exemplified by Mussolini's fascist movement.28 The second edition of Schmitt's book was published in the same series as Georg Simmel's Conflict in Modern Culture and Max Weber's Politics as Profession. Some writers, however, reacted with hostility, accusing Schmitt of proposing the elimination of parliamentary gov­ ernment. To these critics, Schmitt replied that apparently "A scholarly argument which provides no utility for a po­ litical party and serves as propaganda for no one, is gen­ erally viewed today as impractical, unrealistic, and anach­ ronistic. . . . Perhaps the era of discussion had truly come to an end."29 Indeed, Schmitt became quite perturbed when the liberal jurist Richard Thoma asserted that he was at­ tempting to prove that parliament was obsolete. Misinter­ preting Schmitf s writings on Catholicism, dictatorship, and parliamentarianism, Thoma had accused Schmitt of ad­ vocating an alliance between a national dictator and the Catholic Church, goals Schmitt labeled "incredible."30 In a long introduction to the second edition of his book, Schmitt emphasized that he had not declared parliament obsolete, but pointed out that it had lost its traditional intellectual foundations because twentieth-century party politics had made a mockery of public discussion. It was now a question of finding new intellectual foundations that would revital­ ize parliamentarianism, and he hoped that he had made a contribution to the debate on the subject.31 Contrary to later 28 Karl Mannheim, Ideology and Utopia: An Introduction to the Sociology of Knowledge (New York, 1936), pp. 64, 124, 139, 141; and From Karl Mann­ heim, ed. Kurt Wolff (New York, 1971), pp. 248, 291. 29 Schmitt, Parlamentarismus, p. 5. 30 Richard Thoma, "Zur Ideologie des Parlamentarismus und der Diktatur," Archiv fur Sozialwissenschaft und Sozialpolitik, Band 53 (1925), pp. 212-217. For a general attack on the critics of parliamentarianism see also Hans Nawiasky, Die Stellung der Regierung in modernen Staat (Tubingen, 1925), pp. 11-19. 31 Schmitt, Parlamentarismus, pp. 6-8.

BONN YEARS, 1922-1928

assertions that he opted for "action instead of deliberation, for decision instead of evaluation," Schmitt stated: "That the belief in publicity and discussion appears today as something outdated is also my fear."32 In his response to Thoma, Schmitt revealed himself as a typical conservative Vernunftrepublikaner. "Like everything else that exists and functions tolerably," Schmitt wrote, "[parliament] is useful, nothing more and nothing less," but it is clearly "the lesser evil" compared with "Bolshe­ vism and dictatorship," or "untried methods of govern­ ment."33 He doubted, however, that the utilitarian argu­ ment alone would suffice to sustain parliament, since in its current condition parliament represented a "status quo devoid of ideas," the weakness of which would soon be­ come apparent when it confronted ideologically oriented radical movements.34 In a letter to Moritz Julius Bonn, Schmitt confessed that he had ". . . an almost continual fear [of the manner in which] the German right and left pursue their politics." The history of Weimar would show that his fears were well-founded.35 More often than not, the parliament remained paralyzed in times of crisis, and party squabbling or intransigence usually aggravated the situation. The task of restoring or­ der and security fell on the shoulders of Weimar's presi­ dents, who would invoke Article 48 more than 250 times.36 It was only the frequent use of emergency powers that assured the survival of the republic in its early stages of 32 Ibid., p. 6. The erroneous allegation that Schmitt favored action in­ stead of deliberation has been made repeatedly for decades. See Neu­ mann, Behemoth, p. 45; Greiffenhagen, "Conservatism," p. 616. 33 Schmitt, Parlamentarismus, p. 7. 34

35

Ibid., pp. 12-13, 21.

Schmitt to Moritz Julius Bonn, June 17, 1926, Bonn Nachlass, No. 50. 36 Rossiter, Dictatorship, p. 33; Ulrich Scheuner, "Die Anwendung des Art. 48 der Weimarer Reichsverfassung unter den Prasidentsehaften von Ebert und Hindenburg," in Stoat, Wirtschaft und Politik in der Weimar Republik: Festschrift fiir Heinrich BrUning, ed. Ferdinand A. Hermens and Theodor Schieder (Berlin, 1967), pp. 257-266.

PART II

domestic strife. Although Schmitt had no remedy for the deficiencies he had identified in the parliamentary system, he believed that the Reich president, armed with consti­ tutional emergency powers, could prevent a total collapse of the political order or a seizure of power by extremists. But Schmitt never viewed the president as an Ersatzkaiser or advocated presidential usurpation of the constitutional rights of parliament. Instead, Schmitt perceived the pres­ ident as the defender of the Weimar state and constitution. And he had formulated his interpretation of the commissarial nature of Article 48 as early as 1919, while President Friedrich Ebert, a Social Democrat devoted to the consti­ tution, was in the early stage of his term of office. Schmitt remembered clearly the events of 1923 when he defended his interpretation of presidential power at the first conference of the Association of German Constitu­ tional Lawyers held at Jena on April 14 and 15,1924.37 Ebert had ended the state of emergency in February, but the Hitler trial had kept the entire affair in the public eye until the beginning of April. In the light of these events, it is not surprising that the conference attracted some of the most renowned constitutionalists in Germany—Stier-Somlo of Cologne, Nawiasky of Munich, Thoma and Anschiitz of Heidelberg, Heller of Leipzig, Jellinek of Kiel, and Bilfinger of Tubingen. Schmitt felt that the recent crisis had vindi­ cated his position, whereas other jurists were wary of the potential abuse of Article 48.38 Thus a heated controversy 37 "Verhandlungen der Tagung der deutschen Staatsrechtslehrer zu Jena am 14. und 15. April 1924," Veroffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer, Heft 1 (Berlin, 1924). 36 Article 48 stated: "If a state does not fulfill the duties imposed by the Reich constitution or the laws of the Reich, the Reich president may enforce such duties with the aid of armed forces. "In the event that public order and security are seriously disturbed or endangered, the Reich president may take the necessary measures in order to restore public security and order, intervening, if necessary, with the aid of armed forces. To achieve this goal, he may temporarily suspend entirely or in part, the stipulated basic rights in articles 114,115,117,118, 123, 124, and 153.

BONN YEARS, 1922-1928

developed over the precise wording and intent of Article 48 in defining the limits of presidential emergency powers. It was the opinion of a majority of participating jurists that the constitutional limitations on presidential emer­ gency powers were clearly enumerated in paragraph two of Article 48, and that the president could suspend only the seven constitutional articles specifically listed in this paragraph. Any suspension of, or infringement upon, ad­ ditional articles was considered unconstitutional. These ju­ rists also feared that unless such emergency powers were specifically enumerated, presidential authority would be greatly enhanced and the possibility for constitutional vi­ olations increased. They supported a federal law detailing precisely the extent of presidential emergency powers in order to prevent future abuse or misinterpretation. The immediate passage of an Ausfuhrungsgesetz (specific law), as stipulated in paragraph five of Article 48, was considered an "urgent necessity."39 However, Schmitt and Erwin Ja­ cobi, both of whom lectured on the dictatorial powers of the president, challenged the majority viewpoint. Schmitt held that the president must assume extensive powers in times of disorder, and he opposed the passage of any spe­ cific law that would restrict such authority. Jacobi con­ curred with this interpretation, but his lecture never re­ ceived the enormous attention later given to Schmitf s work.40 Schmitt's legal arguments rested on a significant ambi­ guity in the wording of Article 48 and on his interpretation "All measures undertaken in accordance with sections 1 or 2 of this article must be immediately reported to the Reichstag by the Reich pres­ ident. These measures are to be suspended if the Reichstag so demands. [Paragraph four has been omitted.] "The details will be determined by a federal law." "Die Weimarer Verfassung," in Staatsverfassungen, ed. Giinther Franz, (Munich, 1950), pp. 188-189. 39 "Tagung der deutschen Staatsrechtslehrer," pp. 136-139; Scheuner, "Die Vereinigung," pp. 351, 354-355. 40 Carl Schmitt and Erwin Jacobi, "Die Diktatur des Reichsprasidenten nach Art. 48 der Reichsverfassung." Citations are to the 1928 edition of Schmitf s Die Diktatur, where his lecture appeared as an appendix.

PART II

of the basic intent of this provision. The first sentence of paragraph two stated that the president could take "nec­ essary measures" to reestablish public order and security, whereas the next sentence listed seven articles he may sus­ pend to achieve this goal. But as Schmitt pointed out, in times of crisis "necessary measures" might entail the sus­ pension of other constitutional articles. Therefore, he con­ cluded that the second sentence could not serve as a Iimitation on the first. Provided he had the consent of the Reichstag, the president could infringe upon most consti­ tutional articles.41 It was not Schmitf s objective to elevate the president to the status of a sovereign dictator above the constitution. As he explained, a nation can have "Either a sovereign dictatorship or a constitution; one excludes the other."42 In an Ausnahmezustand, the president functions as a commis­ sariat dictator whose sole purpose is to preserve the existing constitutional order. Although the president may suspend individual parts of the constitution, these measures are always temporary and the constitution must be reinstated in its original form once the crisis has subsided. It would, Schmitt stated, ". . . be impossible to transform the re­ public into a monarchy," or in any way to "abrogate" or "revise the constitution" through Article 48.43Likewise, the office of the president, the Reichstag, and the government were exempt from suspension even in an Ausnahmezustand. They constituted what Schmitt called an institutional min­ imum required for the continued functioning of the existing order. So long as the president was bound by these con41 Ibid., pp. 225, 229. Clinton Rossiter noted that, "In actual practice, even when German democracy was at its strongest, the Schmitt-Jacobi thesis was nearer the facts than was the strict and legalistic point of view. A number of provisions of the constitution besides those specifically men­ tioned in Article 48 were clearly contravened by presidential decrees." See Rossiter, Dictatorship, pp. 68-69. 42 Schmitt, Die Diktatur, p. 238. See also Schwab, Challenge, pp. 30-43. «Ibid., p. 242.

BONN YEARS, 1922-1928

stitutional limitations and the consent of the Reichstag, it was necessary to allow him extensive latitude for action, according to the dictates of the concrete situation.44 It would be impossible, Schmitt noted, to predict in ad­ vance what "necessary measures" would be required to solve an unforeseeable crisis. Thus precise restrictions on presidential emergency powers could violate the intent of Article 48 by preventing a president from taking the nec­ essary response in an Ausnahmezustand. The Constitutional Assembly had granted the president these exceptional powers because it realized that an abnormal and critical situation existed in Germany. Since any enumeration of presidential powers could conflict with the original intent of this article, an Ausfuhrungsgesetz would require a con­ stitutional amendment. He also inferred from the records of the Assembly that it had intended to delay the fulfillment of paragraph five, which stipulated that such a law be passed, until a normal state of affairs had been reestablished in Germany.45 To tamper with the constitution while Ger­ many still struggled through periods of instability would only intensify the crisis and possibly endanger the consti­ tution itself. Not only would the proposed law hinder the president's defense of the republic, but the process of con­ stitutional revision could open the way for revolutionary or reactionary amendments as well. Although Schmitt failed to persuade many of his col­ leagues at Jena or thereafter, his stand against limiting pres­ idential power was later supported by the father of the Weimar constitution himself. Using Die Diktatur as a source in an article he wrote in 1924, Hugo Preuss accepted Schmitf s distinction between a sovereign and a commissarial dic­ tator. Preuss stated that "... the Reich president under Article 48 is a commissarial [dictator]," whose purpose is 44

Ibid.,

45

Ibid.,

pp. 244-252. pp. 254-259.

PART II

to defend the constitution.46 Since the birth of the republic events had shown, Preuss emphasized, that politically the exceptional authority granted under Article 48 was an ab­ solute necessity (unerttbehrlich). He also strongly advised against passage of an Ausfiihrungsgesetz, stating that the pressure for such a law came more from a desire on the part of jurists to seek legal refinements than from the de­ mands of the present situation. Many of Preuss's argu­ ments paralleled those of Schmitt. There was still a need, Preuss wrote, for "... the constitutional dictator to retain as much unrestricted freedom to act as possible . . . [and] so long as the current circumstances remain unchanged we should not create a situation in which the Reich authority will face the choice of either violating its legally specified limitations, or not being effective enough to protect the constitution of the republic."47 And like Schmitt, Preuss, a staunch republican, felt that the survival of the republic would continue to depend upon the extensive use of pres­ idential power. "All signs of the times," Preuss concluded, "point to the fact that the constitutional dictator of Article 48 will have to play an even greater role than previously in protecting the Reich and its unity. The competent au­ thorities should prepare themselves for this and be ready for action."48 Weimar jurists continued to engage in endless debates about the correct interpretation of Article 48, and a majority of them persisted in their efforts to define the limits of presidential emergency powers. Writing in Das Recht a few months after the Jena conference, the Munich law professor Hans Nawiasky argued that the incertitude about Ihe power granted under Article 48 actually increased the dangers to domestic stability and he urged passage of a specific law.49 46

Hugo Preuss, "Reichsverfassungsmassige Diktatur," Zeitschrift fiir

Polittk, Vol. 13 (1924), p. 101. 47 Ibid., p. 105. 48 Ibid., p. 113. 49 Hans Nawiasky, "Das Durchfiihrungsgesetz zum Artikel 48 der Reichsverfassung," Das Recht, Jg. 28, Heft 20 (1924), pp. 454-468.

BONN YEARS, 1922-1928

Nawiasky and Schmitt would later oppose each other in a case before the supreme court in 1932, where the central question concerned presidential emergency powers. But another Schmitt critic, Richard Thoma, though he favored passage of an Ausfiihrungsgesetz, recommended postpone­ ment of the issue until more stable times. Like Schmitt, Thoma believed that attempts to pass such a law in 1924 would only heighten demands for general constitutional revisions and further aggravate a volatile situation.50 At the thirty-third German Jurist Conference at Heidelberg in Sep­ tember of 1924, Article 48 was again debated and a bill for a specific law actually written. But subsequent political ma­ neuvers by Chancellor Marx prevented the introduction of this bill before the Reichstag.51 Schmitt was not blind to the potential abuse of presi­ dential power. He believed that the president must be un­ questionably loyal to the constitution and represent the nation as a whole rather than the interests of a particular party. Schmitt thought that Ebert, despite his SPD affilia­ tions, had fulfilled this role quite well. When Ebert sud­ denly died in February 1925, Schmitt felt that the country faced not merely the election of a new president, but a choice that could affect the future of the republic. In a front­ page article in the Catholic newspaper Kolnische Volkszeitung two weeks before the election, Schmitt urged voters to elect a president who would guarantee the integrity of the Weimar constitution.52 A president, Schmitt wrote, should be a pouvoir neutre, a neutral force above parties, who would uphold the constitution and who could govern the complicated machinery of a modern state. Weimar re­ quired a president capable of assuring the continued func­ tioning of the state in the event that the Reichstag was paralyzed for lack of a majority, or by extremists. The coun50

Richard Thoma, "Die Regelung der Diktaturgewait," Deutsche Juris-

ten-Zeitung, Jg. 29, Heft 17/18 (1924), pp. 654-664. 51

Scheuner, "Die Vereinigung," pp. 371-372. Carl Schmitt, "Reichsprasident und Weimarer Verfassung," KMnische Volkszeitung, No. 198 (March 15, 1925), p. 1. 52

PART II

try also needed a president who could defend the state and constitution if anti-democratic forces were able to acquire a Reichstag majority.53 In addition, he must be someone who could be entrusted with the exceptional powers of Article 48. "No constitution on earth," Schmitt warned, "could so easily legalize a Staatsstreich as the Weimar con­ stitution. . . Z'54 Schmitt praised Ebert's performance, but feared that the president's successor might be unable, or unwilling, to serve as a pouwir neutre. Thus, the prime consideration in the upcoming election should not be party loyalty and discipline, but the "personality" and "intelli­ gence" of the candidate.55 Trying to project the image of a disinterested commen­ tator, Schmitt did not endorse any candidate. Hindenburg was certainly not his choice, since when Schmitt published this article the future president was not even a candidate for the March 29 election. It is doubtful that Schmitt pre­ ferred Karl Jarres, the rightist candidate, because of the DNVP hostility to the entire constitutional and political system. The extremists, KPD and NSDAP, were equally unacceptable to Schmitt, and he had criticized the SPD for making the election a test of party prestige and loyalty. That Schmitt published in a Centrist paper, stressed the immense dangers involved, and favored a neutral force loyal to the constitution suggested that he would have pre­ ferred Wilhelm Marx, a member of the Center Party. Marx had impeccable qualifications; he was a man of consider­ able political experience and intelligence whose republi­ canism and public service were beyond reproach. Although Schmitt made no public statements during the runoff elec­ tion of April 26, it was highly unlikely that he would have abandoned Marx in favor of his new rival Hindenburg. The former field marshal was clearly the candidate of the antirepublican forces in Germany; and at this time Hinden53

Ibid.

54

Ibid. Ibid.

55

BONN YEARS, 1922-1928

burg's loyalty to the constitution was definitely suspect.56 Hindenburg had neither the experience nor the intelligence Schmitt thought was required of the person who would occupy the most powerful office in the nation and upon whom the future of the state and constitution mighi very well depend. The course Hindenburg pursued after his election, how­ ever, surprised his rightist promoters as well as his op­ ponents. The new president was determined to keep the state above partisan politics and ideological discord.57Sdunitt would have preferred a more competent president, one with a broader perspective on Weimar's political problems and on the constitution, and he would later lament the fact that Hindenburg interpreted the constitution in such a lit­ eral fashion, often in disregard of political realities. But despite these liabilities, Hindenburg did prove to be verfassungstreu (loyal to the constitution) and to a certain extent he did approximate Schmitfs model of a pouwir neutre. Hindenburg's first years in office would, in fact, be ones of increasing stability. In any event, the presidency had been entrusted to Hindenburg for seven years. During this time, Schmitt would support the Hindenburg government, and presidential advisers would gradually take a special interest in Schmitfs constitutional writings. Still, to many republicans, Hindenburg remained a sym­ bol of the old imperial order and of the reactionary forces that had resisted a democratic form of government in Ger­ many. Weimar democrats were particularly wary of a for­ mer general in possession of unspecified emergency pow­ ers. As a result, passage of an Aus hrungsgesetz once again became an issue of public debate late in the summer of 1926, when the Democratic Party in the Reichstag de56 Andreas Dorpalen, Hindenburg and the Weimar Republic (Princeton, 1964), pp. 66-86. 57 Ibid., pp. 90-92. See also Hermann Piinder, Der Reichsprasident in der Weimarer Republtk (Bonn, 1961), passim.

PART II

manded that Article 48 be regulated through a specific law.58 The Democratic deputies claimed that there had been wide­ spread abuse of emergency powers during the inflation and political crisis of 1923, and that now the enemies of the Weimar constitution intended to use Article 48 to institute a dictatorship. A draft proposal for an Ausfuhrungsgesetz was actually discussed in the Reich ministry of the interior and the cabinet, though the Hindenburg government def­ initely opposed the law. The renewed attempt to limit presidential prerogatives in an Ausruzhmezustand alarmed Schmitt and prompted him to take a public stand against the proposed bill. In an article in the Kdlnische Volkszeitung on October 30, Schmitt reiter­ ated the viewpoints he had presented two years earlier at the Jena conference.59 It would be impossible, he wrote, to predetermine the type and extent of a danger to public order and security, or to enumerate what "necessary meas­ ures" would apply to a future state of exception. The ex­ periences of the first seven years of the republic had dem­ onstrated beyond a doubt the variety of crises which might arise, many of which were unpredictable. He also noted that any attempt to revise or limit the existing presidential powers would require a constitutional amendment rather than merely a federal law. Given the political composition of the Reichstag, Schmitt was confident that the necessary two-thirds majority for a constitutional amendment was out of the question. But there was always a possibility that a court ruling might eliminate the need for a constitutional amendment. Although at this point in his career Schmitt had no per­ sonal contact with the Hindenburg government, the pres­ ident7s advisers found in Schmitt's interpretation of Article 58 "Art. 48 der Reichsverfassung, (1924-1930)," Reichskanzlei, 19191933, R-43-I, 1870, BA. 59 Carl Schmitt, "Das Ausfiihrungsgesetz zu Art. 48 der Reichsverfas­ sung; (sog. Diktaturgesetz.)," KSlnische Volkszeitung, Jg. 67, No. 805 (Oc­ tober 30, 1926), p. 2.

BONN YEARS, 1922-1928

48 a strong constitutional justification for rejecting an Ausfuhrungsgesetz. After several months of consideration, Hindenburg sent a twelve-page exposition to Chancellor Marx on November 22, detailing his objections to the proposed legislation.60 The document was probably prepared by Otto Meissner, a state secretary and legal adviser in the presi­ dent's office, since Hindenburg was obviously incapable of composing such a sophisticated legal interpretation. Schmitt was never cited in the document; but the legal concepts, arguments, and often the wording were taken directly from his publications on Article 48. The tone of Hindenburg's response was definitely Schmittian. Experience had shown, the president wrote, ". . . the multiplicity of potential dangers threatening state security, [and the necessity of] . . . allowing the president a free hand in instituting measures according to the de­ mands of each individual case. . . . A rigid formalistic def­ inition of [a president's] rights, would represent a weak­ ening of his authority and a serious danger to state security."61 Hindenburg added that in an Ausmhmezustand a president could suspend more constitutional articles than those enumerated in paragraph two of Article 48: ". . . he can institute all necessary measures to restore public se­ curity and order."62 There were constitutional limits to presidential emergency powers, but these were to be found in the "organic" and "structural" parts of the constitution. A president ". . . can neither suspend, limit, nor change the institutions of the Reich president, Reich government, or the institution of the Reichstag (or the Reichsrat)."63 Hindenburg also emphasized that the proposed law re­ quired a constitutional amendment.64 The only major ju60 President Hindenburg to Chancellor Marx, November 22, 1926, Reichskanzlei, R-43-I, 1870. 61 Ibid., p. 2. 62 Ibid., p. 9. 63 Ibid. « Ibid., pp. 11-12.

PART II

rists to hold this precise interpretation of Article 48 were Schmitt and Jacobi. No other interpretation granted the president such extensive latitude while at the same time restricting his power over what Schmitt had earlier referred to as the institutional minimum—the president, govern­ ment, and Reichstag.65 This was just the beginning of the government's reliance upon the constitutional interpreta­ tions of Schmitt, which would become so important during the final crisis of 1929-1933. The controversy over the Ausfiihrungsgesetz carried over into the early months of 1927, but in the end the draft bill suffered the fate of earlier proposals. Despite future dis­ cussions in the Reichstag and countless articles in legal journals supporting a specific law, no bill was ever passed altering or defining presidential power under Article 48. Although the government had used Schmitfs arguments in defense of presidential authority, his interpretations had little impact on the failure of these reform proposals. The decisive factors were not legal or theoretical, but clearly political and psychological. The disorders and upheavals of the early republic had predisposed most Germans to strong centralized leadership. They were most reluctant to restrict the president's flexibility in dealing with future crises.66 65 For the source of these arguments see Schmitt, "Die Diktatur," in 'Tagung der deutschen Staatsrechtslehrer," pp. 74-77, 88-90, 93-95; and Schmitt, "Das Ausfiihrungsgesetz." " Rossiter, Dictatorship, pp. 64-65.

FIVE

FRIEND-ENEMY THESIS AND THE INVIOLABLE CONSTITUTION

DURING the final years Schmitt spent at the University of

Bonn, 1926-1928, Germany experienced its most stable and prosperous interlude. The civil disorders and political vio­ lence that had characterized the early history of Weimar had ceased. The Hindenburg presidency offered many Ger­ mans a sense of psychological security and the government was at least functioning tolerably. The future of the republic appeared brighter than ever.1 Like most Germans, Schmitt welcomed the new era of tranquillity. But he remained cautious and apprehensive. He never lost sight of the fact that little had changed in the relations among the diverse political and ideological forces that had torn the nation apart since 1918. While Schmitt hoped that the political stabilization of Germany was finally at hand, an uneasy awareness of the ever present possibility of conflict contin­ ued to pervade his political thought. The evolution of Schmitt's political ideas had started with World War I and had been profoundly affected by the tur­ moil of the early republic. But it was only in the mid-1920's that he finally sorted out these ideas and began to articulate a precise and coherent political philosophy. By this time his Catholic partisanship had given way to a purely secular approach to politics. As late as1923, he had still considered the Catholic Church as a universal moral force representing humanity. Now he displayed a definite dissatisfaction with this view of Catholicism. He began, in fact, to deride those 1 S. William Halperin, Germany Tried Democracy: A Political History of the Reich from 1918 to 1933 (New York, 1965), pp. 347-357; Craig, Germany,

pp. 510-511.

PART II

who continued to include concepts such as "humanity" and "morality" in their political analyses. Although his personal relationships with Catholic intellectuals were not yet appreciably affected (occasionally he still published in the Catholic press), his earlier religious devotion had ob­ viously waned. He was no longer an advocate of political Catholicism, nor a defender of the Catholic cause in gen­ eral. The reasons for this philosophical transformation are not readily apparent. Most likely Schmitfs new political out­ looks were the culmination of several years of thought and personal experience rather than the result of any sudden change of attitude. The Great War, like the upheavals of the early republic, had done little to encourage a belief in humanity or in the existence of a moral element in politics. But since early childhood religion had been such an essen­ tial part of Schmitt's daily life, education, and family re­ lationships that it was difficult for him to develop political perspectives beyond the moral dictates of Catholicism. Thus his early Weimar writings reflected a certain tension. There was, on the one hand, an inclination toward Hobbesian thought, a growing political realism, with emphasis on power, conflict, and the concrete situation. Yet, on the other, he continued to attribute universal moral character­ istics to the Catholic Church, reserving a special political role for the Church as the representative of humanity. As time passed, however, Schmitt gradually recognized that the Catholic Church in Germany acted more like a special interest group than like the universal institution he had described in his book on political Catholicism. Its parochial Weltanschauung and institutional interests were as much a factor inhibiting political harmony in Germany as the ide­ ological positions of the SPD or German nationalists.2 It also appears that Schmitt became personally embittered toward the Church, though the reasons for this are un2 Schwab,

Challenge, pp. 20-21, 55.

BONN YEARS, 1922-1928

known. In later life he often spoke disparagingly of the Church, and he was highly critical of its historical meddling in politics. He once mentioned the "tremendous shock" he received when finally learning that ". . . a layman did not have much to say within a bureaucracy of celibate men."3 Schmitfs new political perspectives were essentially amoral. He argued that universal morality, "natural law or the law of reason," are ideas that one group uses to justify its own position and to vilify its opponents. The rule of a "higher law" is "an empty phrase" which really denotes the rule by those "... men who draw up and administer the law."4 Everyone, he said, naturally desires justice, mo­ rality, ethics, and peace. The crucial question is, "Who decides" what these concepts mean in a particular case?5 In the absence of a sovereign authority to make such de­ cisions, there are only ". . . concrete human groupings which fight with other concrete human groupings in the name of justice, humanity, order, or peace."6 Schmitt did not deny the existence of moral convictions; he merely pointed out that often no consensus existed among political, religious, and ideological factions as to what constituted morality or justice. Therefore, morality and immorality are aspects of private life and do not provide a basis for political analysis. "If men were good," Schmitt said, "my views would be wicked; but men are not good."7 And this pessimistic es­ timate of man was at the heart of his entire political phi­ losophy. "In a good world among good people," he wrote, "only peace, security, and harmony would prevail. Priests 3 Tommissen,

Over, pp. 95-96. Schmitt, Der Begriff des Politischen, pp. 65-67. This is the only work by Schmitt translated into English. See The Concept of the Political, trans. George Schwab (New Brunswick, N.J., 1976). In quoting from Schmitfs book, I have relied extensively on this translation. 5 Carl Schmitt, "Zu Friedrich Meineckes 'Idee der Staatsrason'," Archiv fur Sozialwissenschaft und Sozialpolitik, Band 56 (1926), p. 231. 6 Schmitt, Der Begriff des Politischen, pp. 66-67. 7 Carl Schmitt, "Machiavelli-Zum 22. Juni 1927," Kolnische Volkszeitung, Jg. 68, No. 448 (June 21, 1927), p. 1. 4

PART II

and theologians are here just as superfluous as politicians and statesmen."8 For this reason, he concluded that "all genuine political theories presuppose man to be . . . a dan­ gerous and dynamic being," and that the basic character­ istic of political life is enmity.9 During the winter semester of 1925-1926, Schmitt held a seminar in "Political Philosophy" at the University of Bonn. Here his amorphous political ideas began to crys­ tallize into his controversial friend-enemy thesis.10 The re­ sult was several articles and later a book, The Concept of the Political, wherein he declared: "The specific political dis­ tinction to which political actions and motives can be re­ duced is the distinction between Freund und FeindZni In itself the political has no precise and immutable nature; it is simply ". . . the most intense and extreme antagonism, and every concrete antagonism becomes that much more political the closer it approaches the most extreme point, that of the friend-enemy grouping."12 The political draws its power from various areas of life, such as religion, eco­ nomics, and nationalism, and there are no neutral or apol­ itical spheres as the liberals contend; they are all potentially political. "Every religious, moral, economic, ethical, or other antithesis transforms into a political one if it is sufficiently strong to group human beings effectively according to friend and enemy."13 The political enemy is not necessarily morally evil. "He is merely the other, the stranger, and it is sufficient that according to his nature he is in a special intense way existentially something different and alien, so that in the ex­ treme case conflicts with him are possible. . . ."w The friend8 Schmitt,

Der Begriff des Politischen, p. 64. Ibid., p. 61. 10 Schmitt, Positionen und Begriffe, p. 313. 11 Schmitt, Der Begriff des Politischen, p. 26. 12 Ibid., p. 30. 13 Ibid., p. 37. 14 Ibid., p. 27. 9

BONN YEARS, 1922-1928

enemy concept can only be understood within this exis­ tential framework and should not be confused with moral or economic concepts, or with private feelings. Economic competitors and private adversaries do not constitute a political enemy; the enemy is solely the public enemy, that is, hostis and not inimicus.15 Political enmity does not even necessitate personal hatred of the public enemy. What mat­ ters is the ". . . degree of intensity of a union or separation, of an association or disassociation."16 War, "the real possibility of physical killing," is the most extreme consequence of enmity.17 But Schmitt was quick to emphasize that "War is neither the aim nor the purpose nor even the very content of politics."18 The actual conflict has no political meaning or existential value in itself; the political distinction between friend and enemy has already been made before the onset of hostilities. The politically prudent course could instead be the avoidance of war. Like­ wise, the friend-enemy concept does not imply that any nation or group is the natural or perpetual enemy of any other nation or group.19 War, Schmitt added, is not com­ mon, normal, something ideal or desirable.20 "There exists no rational purpose, no norm no matter how true, no pro­ gram no matter how exemplary, no social ideal no matter how beautiful, no legitimacy nor legality which could jus­ tify men in killing each other for this reason. If such phys­ ical destruction of human life is not motivated by an ex­ istential threat to one's own way of life, then it cannot be justified."21 Thus, "the definition of the political suggested 15 Ibid., p. 29. For further clarification on Schmitfs use of the term Feind see George Schwab, "Enemy oder Foe: Der Konflikt der modernen Politik," Epirrhosis: Festgabe fiir Carl Schmitt, ed. H. Barion, E-W. Bockenforde, E. Forsthoff, W. Weber (Berlin, 1968), II, pp. 665-682. 16 Ibid., p. 27. " Ibid., p. 33. 18 Ibid., p. 34. w Ibid., p. 35. 20 Md., p. 33. 21 Ibid., pp. 49-50.

PART II

here neither favors war nor militarism, neither imperialism nor pacifism."22 The state is the decisive political entity, according to Schmitt, because to it alone belongs the jus belli.23 No other entity within society can determine the enemy and none has the means to conduct an armed struggle against that enemy, that is, to wage war. Only the state can require the ultimate sacrifice and ". . . demand from its own members the readiness to die and unhesitatingly to kill enemies."24 By virtue of this power the state transcends all other social and political entities. But this does not mean that the state is an authoritarian or totalitarian entity, or that the state determines "... every aspect of a person's life or that a centralized system should destroy every other organization or corporation."25 Competing social groups, political as­ sociations, and parties can exist within a state so long as they do not seriously endanger the established political and legal order. The primary function of the state is neither to wage war nor to control the lives of its citizens; its purpose is "to create tranquillity, security, and order. . . ."26 Within a sta­ ble state legal norms and laws prevail because the state can guarantee a normal situation and assure that domestic friendenemy antagonisms do not reach the level of armed strug­ gle. But in extreme cases the state must decide upon the Staatsfeind (domestic enemy). Any group which seriously threatens domestic peace or the existence of the state must, out of necessity, be declared a Staatsfeind. Here Schmitt had in mind only those groups which seek the destruction of the existing system, or those groups which in their conflicts with other groups threaten to cast the nation into domestic turmoil. If, however, domestic friend-enemy antagonisms were to become so intense as to lead to armed conflict 22 23 24 25

26

Ibid., p. 33. Ibid., p. 45. Ibid., p. 46. Ibid., pp. 39, 48.

Ibid., p. 46.

BONN YEARS, 1922-1928

between such groups, the state would cease to be the de­ cisive political entity.27 The result would be a civil war in which each group would draw its own friend-enemy dis­ tinctions and the survival of the state would be in doubt. A world in which the possibility of war or civil war dis­ appeared ". . . would be a world without the distinction between friend and enemy and hence a world without politics."28 No other work by Schmitt provided a clearer insight into his basic outlook on political life. For him, politics was a conflict between organized groups within a state and be­ tween sovereign states on the international scene. Central to his entire theoretical framework, as well as to his ap­ proach to the politics of Weimar, was the state. Only the state could protect its citizens from foreign enemies and maintain domestic order, peace, and stability. In pursuit of this goal the state must be able, in times of crisis, to intervene in different areas of society, because no sphere is immune from potential political conflict. Attempts by liberals to separate religion, culture, economics, and law from politics were considered by Schmitt to be unrealistic. When necessity so warrants, the state must either intervene to counteract an enemy or the state will abrogate its sov­ ereignty.29 In the years that followed, Schmitt would argue repeatedly that the survival of Weimar would depend upon the ability and willingness of the German state to distin­ guish the friend from the enemy and to react accordingly. Schmitt first introduced his friend-enemy concept in a lecture at the Hochschule fur Politik on May 10, 1927, and his article on the subject appeared in late summer.30 The Hochschule had sponsored a lecture series on "The Prob27

Ibid., pp. 46-47. Ibid., p. 35. " Ibid., pp. 68-72. 30 Probleme der Demokratie, ed. Arnold Wolfers (Berlin, 1928), pp. v-vni. See also Schmitt, Positionen und Begriffe, p. 313, and "Der Begriff des Politischen," Archiv fiir Sozialmissenschaft und Sozialpolitik, Band 58, Heft 1 (August 1927), pp. 1-33. 28

PART II

lems of Democracy" and invited Schmitt to Berlin as a guest speaker. To many in his audience and to many of those who would later read his work, particularly those of liberal or humanitarian sympathies, Schmitf s ideas were disturb­ ing to say the least. The very terms "friend-enemy," com­ bined with the tone of Schmitt's frank assertions about the political nature of man, probably sounded crude. It ap­ peared as if he were reviving some atavistic notion of Machtpolitik inappropriate for describing the relations be­ tween civilized nations. It was quite obvious that Schmitt's arguments ran counter to the liberal Enlightenment tradi­ tion, the belief in social progress, and the hope that the burdens of war might somehow eventually be lifted from the shoulders of mankind. But some of those who were themselves critical of liberalism also found Schmitt's ideas objectionable. The Social Democratic legal theorist Her­ mann Heller, another guest speaker in this series, charged that Schmitt's definition of the political ignored ethics and contradicted all accepted theories of law and the state. Hel­ ler cited Schmitt's friend-enemy thesis as an example of where the irrational political philosophies of thinkers such as Vilfredo Pareto could lead. Within Schmitt's scheme, Heller said, there would no longer be any basis for rational discussion and the political goal would be the annihilation of the enemy. All politics and history would then be re­ duced to "a naked power struggle."31 Although Heller had correctly identified the amoral as­ pect of the friend-enemy theory, many of his accusations were misleading. Schmitt was not advocating any irrational political philosophy, but presenting a stark, realistic, and rational analysis of political behavior. For Schmitt, the ir­ rational was an integral part of human life and it had a significant impact on politics. Yet, he never claimed that political behavior was essentially irrational, or that there existed no basis for rational discussion. Many of the factors 31 Hermann Heller, "Bemerkungen zur staats- und rechtstheoretischen Problematik der Gegenwart," Archiv des dffentlichen Rechts, Band 16, Heft 3 (1929), p. 338.

BONN YEARS, 1922-1928

that could motivate friend-enemy oppositions, such as eco­ nomic competition or the defense of one's homeland, were quite rational. And Schmitt never denied that rational dis­ cussion and compromise could likewise be a means to avoid such confrontations. He had said, in fact, that war was the exception. His point was that there always remained the possibility of armed conflict.32 He never intended to reduce politics to a naked power struggle. Power might determine the outcome of a conflict, but the original friend-enemy grouping would be the result of some religious, moral, economic, or other antithesis. Schmitt had anticipated a hostile reaction to his thesis. It was irrelevant, he remarked, whether one accepted or rejected his concept, because ". . . rationally speaking, it cannot be denied that nations continue to group them­ selves according to the friend and enemy antithesis."33 But Schmitt was quite perturbed by Heller's misrepresentation of his ideas. ". . . I am concerned about being cited cor­ rectly," Schmitt wrote to Heller, "in order to protect myself from obvious misunderstandings or even from insinua­ tions. I do not recall stating that the enemy should be destroyed. . . . In an atmosphere of deception, I wanted to speak with simple human and intellectual honesty and in writing this work I feel that I acted only as a sole retriever of an ancient prudence. However, the catchwords associated with my name on page 16 of your article (neo-Machiavellian political techniques, 'disillusioned bourgeois society,' 'na­ ked power struggle,' . . . 'atheistic Catholicism') . . . [are] the weapons of distinct friend-enemy groups, with which I am being identified, despite the fact that up to now I have been able to preserve my intellectual autonomy. . . . In itself my name does not properly belong in this kind of paper on the political theory of Pareto."34 At this time, however, the condemnation of Schmitt was 32

Schmitt, Der Begriff des Politischen, pp. 39-40. Ibid., p. 29. 34 Schmitt to Hermann Heller, December 18, 1928. This letter has been published in Tommissen, Problemen, pp. 182-183. 33

PART II

not as widespread as one might have expected. Several German scholars felt that on balance Schmitt had provided a penetrating analysis and a challenging thesis. Schmitt's Catholic friends were certainly impressed. Waldemar Gurian was quite enthusiastic about Schmitt's realistic ap­ praisal of politics, and had nothing but praise for an article Schmitt had published on Machiavellianism and interna­ tional relations. The day after this article appeared, Gurian informed Schmitt that he ". . . could have made good use of [Schmitt's] political definition" in a discussion he had had earlier that morning with a representative of the League of Nations. He also asked Schmitt to send him two copies of the proofs of his forthcoming article on the concept of the political.35 Carl Muth's reaction was similar. When the article finally appeared he read it carefully several times and wrote to Schmitt that"... dialectically your work has undoubtedly surpassed everything that has been previ­ ously said about the concept of the political."36 But he cau­ tioned that a majority of educated Germans would find the friend-enemy concept offensive. Although Muth himself had some reservations about accepting the thesis com­ pletely, he concluded his comments by saying that". . . in essence, you are on the right track, the formulation you have attempted strikes at the heart of the matter."37 Like­ wise, Schmitt's ideas do not seem to have been too repug­ nant for the Catholic editors of Germania; they published a section of "The Concept of the Political" in their paper on April 21, 1928.38 Though much criticism would be in store for the friendenemy thesis in the future, Schmitt's work was initially 35

Waldemar Gurian toSchmitt, June 22,1927, Schmitt, Personal Papers. Carl Muth to Schmitt, November 7, 1927, Schmitt, Personal Papers. 37 Ibid. 38 See Carl Schmitt, "Der Staat und das Recht auf den Krieg," Germania, No. 186 (April 21, 1928), which is identical with chapter five of Der Begriff des Politischen. 36

BONN YEARS, 1922-1928

received as a major contribution to political science.39 Many of the scholars at the Hochschule fiir Politik held his study in high regard, and they were in the vanguard of those advancing political science as an academic discipline. It was the Hochschule that first published "The Concept of the Political" in book form early in 1928, and thereafter Schmitt was invited on a fairly regular basis to lecture at that in­ stitution.40 In a volume published in honor of the tenth anniversary of the Hochschule, the sociologist Albert Sal­ omon referred to Schmitt's friend-enemy concept as". . . a fundamentally important sociological discovery."41 Two years later when Sigmund Neumann, a rising political sci­ entist at the Hochschule, published his classic study of Weimar political parties, he relied upon several of Schmitfs concepts and works. Neumann actually opened his first chapter with the statement, "All politics begins with this recognition of friend-enemy relationships."42 By this time, not only had Schmitt sorted out his own political ideas, but he had also acquired a national repu39 For a systematic analysis of Schmitf s friend-enemy thesis see Mathias Schmitz, Die Freund-Feind Theorie Carl Schmitts Entwurf und Entfaltung (Co­ logne, 1965). See also Hasso Hofmann, Legitimitat gegen Legalitat: Der Weg der politischen Philosophie Carl Schmitts (Berlin, 1964), pp. 101-124, and "Feindschaft-Grundbegriff des Politischen?" Zeitschrift fiir Politik, Jg. 12, Heft 1 (February 1965), pp. 17-39; Julien Freund, L'essence du politique (Paris, 1965); Jiirgen Fijalkowski, "Das politische Problem der Feindschaft," Politischen Vierteljahresschrift, Jg. 6, Heft 1 (March 1965), pp. 105111. Over the decades, Schmitf s friend-enemy thesis has been distorted by many writers. See Charles Frye, "Carl Schmitt's Concept of the Polit­ ical," The Journal of Politics, XXVIII (November 1966), pp. 818-830; William Ebenstein, The German Record: A Political Portrait (New York, 1945), pp. 48-51, and Man and the State: Modern Political Ideas (New York, 1947), pp. 294-295. 40 This edition of Der Begriff des Politischen was published by the Hoch­ schule fiir Politik in its series Politische Wissenschaft. 41 Albert Salomon, "Innenpolitische Bildung," in Politikals Wissenschaft: Zehn Jahre Deutsche Hochschule r Politik, ed. Ernst Jackh (Berlin, 1930), p. 106. 42 Sigmund Neumann, Die deutschen Parteien: Wesen und Wandel nach dem Kriege (Berlin, 1932), p. 9.

PART II

tation among German intellectuals. Since the founding of the republic he had published approximately twenty-five articles and eleven books, several of the latter had gone through a second edition, and his Politische Romantik had been translated into French. In addition to countless re­ views, there were already more than ten articles devoted to Schmitt and his writings; he was well on his way to becoming "that era's most influential political analyst."43 Nevertheless, his reputation rested as much upon his stud­ ies in legal theory and constitutional law as upon his po­ litical writings. For despite his fascination with political theory and the innovative courses he taught in political science, his primary responsibilities at the university were still in jurisprudence. And the crowning achievement of his Bonn career was his Verfassungslehre, a classic study of legal theory and constitutional law he completed in 1927. Even a cursory reading of Schmitf s Verfassungslehre would force one to conclude that he was not an opponent of the Weimar constitution or the republic. But Schmitt's sense of realism, along with his almost chronic fear of political disorder, led him to formulate a very distinctive interpre­ tation of the constitution, one which would inhibit drastic or revolutionary change while at the same time permit flex­ ibility in the application of the constitution to specific cases. A constitution, he asserted, originated not from legal norms but from a political decision on the part of those who held the "constitutional granting power."44 As such, a consti43 Dorpalen, Hindenburg, p. 93. Among the more important articles on Schmitt from this period which have not yet been cited are Alfred von Martin, "Das Wesen der romantischen Religiositat," Deutsche Vierteljahreshefte fur Literaturwissenschaft und Geistesgeschichte, Band II, Heft 3 (1924), pp. 367-417; Carl Brinkmann, "Carl Schmitts Politische Romantik," Archiv for Sozialwissenschaft und Sozialpolitik, Band 54, Heft 2 (August 1925), pp. 530-536; Georg von Below, "Zum Streit um die Deutung der Romantik," Zeitschrift fiir die gesamte Staatsivissenschaft, Band 81, Heft 1 (1926), pp. 154162; Johannes Kirschweng, "Der Romantiker Carl Schmitt," Rhein-Mainische Volkszeitung, No. 16 (January 21, 1926). 44 Schmitt, Verfassungslehre, pp. 23-25, 77.

BONN YEARS, 1922-1928

tution was more than a collection of individual laws or norms for governing society; it actually determined the specific form and nature of a political order, whether dem­ ocratic, monarchical, or communistic. In the case of the Weimar constitution, the German people made a "political decision for a constitutional democracy," and "against the monarchy."45 Although individual articles of that consti­ tution were subject to amendment under Article 76 and to temporary suspension under Article 48, the constitution as a whole (i.e., the essence of the political and legal order) was, in his view, "inviolable."46 Therefore, Schmitt insisted that the constitution must be interpreted on the basis of the essence of that document, and with regard to its in­ violability, rather than merely according to the wording or details of specific articles. The inviolability of the essence of the constitution placed limitations on constitutional revisions. Schmitt was em­ phatic on this point, stating repeatedly that "constitutional revision is not constitutional abrogation."47 A literal inter­ pretation of Article 76, which provided for amendments voted by a two-thirds Reichstag majority, he feared, could sanction unconstitutional changes in the very nature of the Weimar constitution. And he argued that such a legal ma­ jority did not have the authority to transform the Weimar Republic into a new type of political order (e.g., "into an absolute monarchy or a soviet republic").48 The essence of the constitution must take precedence over the precise wording of Article 76, because only the people as a whole, the pouvoir constituant, could authorize such a change in the basic nature of the constitution. Neither could individ­ ual constitutional articles be amended in such a way that they would violate the democratic nature of other parts of the constitution. Article 76 could never be used, for in45 Ibid., pp. 20-24, 29. «Ibid., pp. 26-27. 47 Ibid., pp. 104-112. 48 Ibid., pp. 25-26.

PART II

stance, to destroy "democratic voting rights," or ". . . to transform the position of the president into that held by a monarch."49 By taking this position Schmitt showed that he was not a fellow traveler of the German National Party or the right­ ist groups from which it drew support. Between 1926 and 1928, there were several proposals for reactionary consti­ tutional revisions sponsored by the DNVP and right-wing organizations such as Franz Seldte's Stahlhelm.50 These amendments would have established a second chamber of parliament, in actuality an indirectly elected upper house, that would counterbalance the popularly elected Reichstag; and they would have altered Article 54 in such a way as to allow the government more power and independence from the Reichstag.51 Both revisions were intended to weaken the democratic segments of the constitution so as to grad­ ually institute an authoritarian form of government. Al­ though Schmitt was disgruntled by the current practice of parliamentary government, he was still unwilling to aban­ don the republic and he challenged the constitutionality of an upper house. "The political consequences of democ­ racy," he wrote, "conflict with the two chamber system. . . ."52 The concept of a second chamber is based upon a recognition of certain noteworthy characteristics of specific individuals within a nation, such as education, age, or property, and "... thus this system signifies a violation of the democratic equality of all citizens."53 The attempts to make the government less responsible to the Reichstag by amending Article 54 also received no 49

Ibid., pp. 104-105. "Reichsverfassung," Reichskanzlei, R-43-I, 1864, 1865; Dorpalen, Hindenburg, pp. 116-117. 51 Article 54 states: "The Reich Chancellor and the Reich Ministers re­ quire for the exercise of their office the confidence of the Reichstag. Any one of them must resign if the Reichstag withdraws itsconfidence through a formal resolution." "Die Weimarer Verfassung," p. 189. 52 Schmitt, Verfassungslehre, p. 294. 53 Ibid. 50

BONN YEARS, 1922-1928

support from Schmitt. He referred to the vote of confidence required by this article as ". . . the foundation of the par­ liamentary system of the Weimar constitution," and it was necessary for maintaining the balance of power between the executive and the legislature.54 Of course, Schmitt de­ plored the fratricidal party politics in the Reichstag and lamented the fact that the government was so dependent upon vacillating party alignments. But in his discussions of Article 54, he did not even allude to the need for a constitutional change that would rectify this problem by enhancing the power of the president or the government.55 The slogan of the German Nationalist Party, "More power to the Reich president," never became a catchword for Schmitt because he assumed that the president already had sufficient constitutional power at his disposal. Oddly enough, the strongest opposition to Schmitfs concept of the limits of constitutional revision came from republican jurists. Gerhard Anschutz, perhaps the major authority on the Weimar constitution, argued that Article 76 granted the legislature comprehensive authority; legally there were no limitations whatever on its power to amend the constitution, and so the constitution ". . . is at its dis­ posal."56 A decision on major revisions, Anschutz informed Schmitt, was not a question of constitutional law, but of politics.57 This interpretation worried Schmitt, because he feared that the fate of the constitution might in the future rest upon the political goals of a party or a coalition, rather than on a political decision of the German people as a whole. A literal interpretation of Article 76 would leave open the door to revisions that could violate the republican nature of the constitution, or even lead to its abrogation. But most jurists remained unconvinced by Schmitt's ar54

Ibid., pp. 196-197, 343. Ibid., pp. 345-357. 56 Gerhard Anschutz, Kommentar zur Reichsverfassung (Berlin, 1932), p. 404, and Die Verfassung des Deutschen Reichs vom 11. August 1919 (Berlin, 1929), pp. 351-352. 57 Schwab, Challenge, p. 96. 55

PART II

guments. Schmitt's perennial opponent, Richard Thoma, summed up the majority opinion when he noted that nei­ ther "enthusiasm nor fear" can alter the fact that the leg­ islature "possesses an unlimited competence."58 Schmitt's concerns about a formalistic interpretation of the constitution went beyond the problem of constitutional revision. He warned that in certain political circumstances a literal adherence to specific constitutional articles might also paralyze the entire governing process, thereby endan­ gering the constitution or the security of the state. It would be inconsistent and unrealistic, he felt, to assert the in­ violability of the constitution or to express loyalty to the republic and then to ignore the political dangers to the existing constitutional order. An immutable Schmittian precept was that the concrete situation should prevail over abstract principles, or strictly formalistic interpretations, when analyzing constitutional questions.59 Schmitt had first expressed concern about the possibility of such political paralysis in October 1924, when President Ebert dissolved the Reichstag because Chancellor Marx had been unable to form a government that could acquire a vote of confidence.60 At that time there was a strong like­ lihood that new elections might also fail to return a Reichs­ tag capable of providing majority support for a new gov­ ernment. Although Article 25 clearly stipulated that the Reichstag could be dissolved "only once for the same rea58 Richard Thoma, "Die Funkhonen der Staatsgewalt," in Handbuch des Deutschen Staatssreehts, ed G Anschutz and R Thoma (Tubmgen, 1932), II, ρ 154 59 Schmitt, Verfassungslehre, pp 110, 125, 146, 200, and Pohttsche Theologie, pp 20, 27-29 60 Carl Schmitt, "Nochmalige Reichstagsauflosung," Kolmsche Volkszeitung, No 836 (October 26, 1924), and " 'Einmaligkeif und 'gleicher AnIass' bei der Reichstagsauflosung nach Art 25 der Reichsverfassung," Arehiv des offentlichen Rechts, Band 8 (1925), pp 162-174 Citations are to Carl Schmitt, Verfassungsrechtliche Aufsatze aus den Jahren 1924-1954 Materialien zu einer Verfassungslehre (Berlin, 1958), pp 13-26

BONN YEARS, 1922-1928

son," Schmitt believed that a literal interpretation of this clause, applied to the current case, could paralyze the gov­ ernment. The failure to form a majority government, he contended, was not subject to the phrase "only once for the same reason," since the entire constitutional system depended upon the formation of a governing majority.61 In the event that a government backed by a Reichstag ma­ jority was still lacking after the election, the Reichstag could once again be dissolved without violating the spirit of Ar­ ticle 25. Terms such as "only once" and "for the same reason" were relative terms rather than absolute concepts; they were bound to the concrete political case at issue.62 Otherwise, the literal application of Article 25 in this case would turn the constitution into a purely formalistic doc­ ument with no relationship to political reality. The country would be caught in a constitutional dilemma, without a governing majority and unable to call new elections in search of the necessary majority. Either an intolerable situation would exist for four years or a fictitious new reason for dissolving the Reichstag would have to be invented.63Schmitt believed that the dire consequences of governmental pa­ ralysis were a greater danger to the constitutional system than his broad interpretation of a specific article. When Schmitt wrote his Verfassungslehre, he had not fore­ seen the possibility in which repeated elections would fail to provide a viable majority coalition in the Reichstag. He was quite astute, however, in recognizing that a vote of no confidence under Article 54 could be used as an ob­ structionist tactic by anti-constitutional parties.64 The sole objective of a vote of no confidence by these parties would be to paralyze the government, since they Ihemselves would be unwilling to cooperate in the formation of a new gov61

Ibid., pp. 16-17. Ibid., pp. 21-25. 63 Ibid., p. 26. 64 Schmitt, Verfassungslehre, p. 345. 62

PART II

ernment. If such circumstances did arise, the government, according to Schmitfs legal opinion, would not have to resign until new elections led to the creation of another government. This was necessary in order to prevent a power vacuum and to keep the machinery of the state functioning in the interim.65 It is quite significant that Schmitt specifi­ cally mentioned the German Nationalist Party and the Communist Party as the groups most likely to abuse Article 54 in this manner.66 Within a few years the National So­ cialists would also find Article 54 a useful tool in helping to bring about the collapse of the republic. Early in 1928, when Schmitt's book appeared and his Bonn career was drawing to an end, the possibility of pro­ longed governmental paralysis or of a Reichstag majority controlled by the extreme right and left seemed more un­ likely than ever. Weimar was at its peak of prosperity; with economic improvement came political stability as well as a new confidence in the republic. The Reichstag elections of May 20 proved to be the greatest victory for the republican forces in Germany since 1919.67 It was a notable success for the Social Democratic Party, which made substantial gains, and a decisive defeat for the right. The DNVP lost more than a million votes; the Nazis, now reduced to a mere twelve Reichstag seats, appeared on their way to political obscurity. After some initial difficulties, the Social Democrat Hermann Muller emerged as chancellor and was able to reconstruct a great coalition government. The SPD, Weimar's largest party and the one most devoted to the republic, had again taken a position of leadership and re­ sponsibility. The Miiller government started out on a note of optimism that was shared by most Germans. Yet, this was only an Indian summer for the republic. By the end of the year Weimar's political parties would revert to their 65 66 67

Ibid., pp. 356-359. Ibid., p. 345. Dorpalen, Hindenburg, pp. 140-145; Halperin, Germany, pp. 358-365.

BONN YEARS, 1922-1928

traditional squabbling and years of crisis would follow. When this happened Schmitt would be in Berlin, the very center of German political life, where he would become more involved in political affairs than he had ever antici­ pated.

PART III WEIMAR'S FINAL CRISIS, 1929-1933: THE THEORIST OF THE PRESIDENTIAL SYSTEM

SIX

THE P O U V O I R N E U T R E AS DEFENDER OF THE CONSTITUTION

SCHMITT left Bonn in the spring of 1928 to accept the Hugo

Preuss chair of law at the Berlin Graduate School of Busi­ ness Administration. No doubt, it was the lure of the Preuss chair and the attraction of Berlin that convinced him to leave the University of Bonn for a position at the Handelshochschule. Berlin, the political and intellectual center of Weimar, offered a more prestigious setting, one befitting an ambitious scholar with a national reputation who was fascinated by politics. Schmitt's selection for the Preuss chair depended upon the recommendation of his friend Moritz Julius Bonn, the director of the Handelshochschule.1 A staunch liberal, Bonn remained a loyal sup­ porter of the republic until the very end. If Schmitt had been regarded as an enemy of the republic, Bonn would never have considered him for a position previously held by the father of the Weimar constitution. Perhaps it was the workings of fate that brought the theorist of the Ausnahmezustand to Berlin just as the republic was about to experience another period of sustained crisis. The next few years Schmitt spent in Berlin were times of governmental paralysis, economic depression, and re­ newed political violence. This was the final test for Weimar democracy. During this time Schmitt enjoyed his greatest public recognition and had his best opportunity to exert political influence. While at Bonn, Schmitt had never es­ chewed Weimar's political problems. But Bonn was not Berlin. The small university town left Schmitt without di­ rect access to the center of Weimar politics. Only after mov1

Bonn, Bilanz, p. 330.

PART III

ing to Berlin did he establish contact with some of Weimar's more important political figures. Yet, neither Schmitt's writings on parliamentary government, the state of excep­ tion and Article 48, nor his advice to political leaders was responsible for the crisis which led to the collapse of the republic. All of Schmitt's efforts were directed at the res­ toration of stability, and Weimar's future was, in any event, determined by political circumstances which no intellectual could ever possibly alter.2 The fundamental political weakness that led to parlia­ mentary paralysis between 1929 and 1933 had existed since the inception of the republic. A multiplicity of antagonistic political groups and parties continually hindered the for­ mation of stable governing coalitions. Even when con­ fronted by economic disaster and the threat of an extremist seizure of power, these Interessenparteien proved incapable of compromise and cooperation. Although the formation of the great coalition in 1928 held out hope for such ac­ commodation, the interests and ideological views of the Social Democrats and the German People's Party were too divergent to provide a firm basis for the Muller govern­ ment. The economic crisis of 1929 placed an additional strain on this tenuous coalition and brought the govern­ ment to the verge of collapse by the end of that year. At a time in which cooperation was most necessary, the failure of the great coalition would leave Weimar without a viable governing majority, as class and party interests took prec­ edence over the general welfare of the nation and the se­ curity of the republic.3 2 Werner Conze, "Die Krise des Parteienstaates in Deutschland 1929/ 30," Historische Zeitschrift, Band 178, Heft 1 (1954), p. 50; Laqueur, Weimar, p. 109. 3 The intransigence of the trade unions and the political offensive of industry against labor and the SPD were crucial factors in the collapse of the great coalition. For detailed discussions of the socioeconomic conflicts that prevented the SPDand bourgeois partiesfrom reaching a compromise see David Abraham, The Collapse of the Weimar Republic: Political Economy and Crisis (Princeton, 1981), pp. 47, 85, 288-290, and chap. 5; Bracher, Die

WEIMAR'S FINAL CRISIS, 1929-1933

As early as August 1928, Schmitt feared that such selfinterested party politics could eventually bring about the disintegration of the republic.4 He did not deny that a nat­ ural plurality of interests and associations existed within society and that political parties were a necessary part of a parliamentary system. But in a pluralistic society, he noted, the unity of the state can be preserved only so long as two or more parties come to terms and recognize common premises. Under such circumstances, a constitution, com­ monly recognized and respected by these parties, can serve as the foundation of a very effective political unit.5 Parlia­ ment becomes the arena in which the interests and opin­ ions of various socioeconomic, cultural, and ideological groups are transformed into an "over-party will" through free negotiations by the representatives of these different party interests. This can only be achieved, however, if po­ litical parties are free associations open to compromise and persuasion, rather than exclusive, firmly controlled, and tightly disciplined organizations.6 Unfortunately, Weimar never approximated this type of political system. Not only did several parties refuse to rec­ ognize the legitimacy of the constitution, but those that did were so divided they could find no common ground on which to cooperate. Weimar had become what Schmitt dis­ paragingly called a "pluralistic Parteienstaat." Its parties were thoroughly organized institutions with influential bureau­ cracies, standing armies of paid functionaries, and a variety of supporting organizations, to which an ideological, soAufldsung, pp. 257-271; Craig, Germany, pp. 521-533; Richard Hunt, German Social Democracy, 1918-1933 (Chicago, 1970), pp. 185-187; Helga Timm, Die Deutsche Sozialpoliltk und der Bruch der Grossert Koalition im Marz 1930 (Diisseldorf, 1952); Bernd Weisbrod, Schwerindustrie in der Weimarer Republik: lnteressenpolitik zxoischen Stabilisierung und Krisen (Wuppertal, 1978), pp. 395-3%, 472-479. 4 Schmitt, Aufsatze, p. 100. 5 Carl Schmitt, "Staatsethik und pluralistischer Staat," Positionen und Begriffe, pp. 141-144. 6 Carl Schmitt, Der Hiiter der Verfassung (Tubingen, 1931), pp. 88-89.

PART III

cial, or economic clientele was cohesively bound.7 And the problem was compounded by the system of proportional representation and the list system by which candidates were elected. Rather than electing individual representa­ tives, voters confronted a party list containing a series of names selected in secret, unaccountable party committees. The result was a statistical grouping and distribution of the voting masses according to the party lists. Because parties were organized into these firmly bound political and social power blocks, elections constituted "a roll-call of the stand­ ing-party army" and, in effect, a plebiscite.8 The Weimar parliament, Schmitt noted, was no longer an institution in which compromise and political unity could be achieved; it had become an arena for dividing the nation into a plurality of social groups. This trend led either to a condition in which parties were unable to form majorities, or to one in which the present majority used all legal means during its term of office to secure its possession of power and to limit the opportunity of its opponents to acquire offices.9 Maintaining the legal reins of power, every incum­ bent majority or coalition declared its own actions as legal, while it designated any criticism or threats to its own po7 8

Ibtd,

ρ 83

Ibtd , pp 86-87 In the latter stages of the republic, it was generally

believed that the list system and the peculiar nature of German political parties were two of Weimar's most pressing problems Even Fntz Hartung and Hans Kelsen, two opponents of Schmitfs political ideas, recognized that these problems were paralyzing the parliamentary system See Fntz Hartung, Jurist unter vter Retchen (Cologne, 1971), pp 90-91, and Hans Kelsen, "Die Knse des parlamentanschen Systems," speech delivered on February 4, 1931, before the Februar-Klub in Cologne The Februar-Klub was a nonpartisan political organization concerned with constitutional reform which favored a strengthening of the power of the government m relationship to the Reichstag Fnednch Sieling, Nachlass, Kleinen Erwerbungen, No 484, Band 2 (1930-1931), BA See also Hermens, De­ mocracy or Anarchy7, pp 71, 76, and Fnednch Schafer, "Zur Frage des Wahlrechts m der Weimarer Republik," in Hermens and Schieder, eds , Brumng, pp 119-140 9 Ibid , ρ 89

WEIMAR'S FINAL CRISIS, 1929-1933

sition as illegal or contrary to the spirit of the constitution. These practices, Schmitt charged, "destroyed respect for the constitution."10 Whereas in the nineteenth century the danger to the constitution was usually found in the exec­ utive, with the legislative branch serving as the defender of the constitution, the current threat resided in parlia­ ment.11 The pluralistic social and economic factions in the Reichstag often caused governmental paralysis and increas­ ingly threatened the political unity of the nation. To counteract these centrifugal pressures, Schmitt looked to a neutral force which, standing above pluralistic interests and representing the German people as a whole, would act as the defender of the constitution. Although in a de­ cision of October 15, 1927, the supreme court had desig­ nated itself as the protector of the constitution, Schmitt had little faith in the ability of that institution to fulfill this role.12 For Schmitt, preservation of the constitution was a political problem and not merely a legal question. The supreme court, he argued, was incapable of defending the consti­ tution as a whole, or of wielding sufficient political power, two prerequisites for any guardian of the constitution. Its decisions were restricted to violations of individual con­ stitutional laws; even in this respect its decisions would always be too late, because judicial decisions must be made after a violation has occurred.13 Schmitt also realized that the court would be powerless against a constitutional amendment under Article 76, and he feared that an ex­ tremist party might use this article to abuse or even to destroy the constitution. So long as the judiciary remained apolitical, it would be an inadequate defender of the con­ stitution. Laws may be passed and judicial decisions ren­ dered, but without political authority the judiciary would 10

Ibid., p. 90. » Ibid., pp. 24-25. 12 Carl Schmitt, "Das Reichsgericht als Huter der Verfassung," Aufsatze, p. 70. 13 Ibid., pp. 69-70. Ill

PART III

still be powerless in many cases. "One law cannot protect another law," Schmitt wrote; a true defender of the con­ stitution required the political authority to distinguish the friend from the enemy, and the power to enforce that de­ cision.14 If the judiciary received such political authority, it would mean the politicization of justice.15 Elaborating an idea inherent in his early writings on pres­ idential power, Schmitt began to promote the concept of the president as the defender of the constitution. The pres­ ident, he explained, was not a "higher third" above the other institutions of government, for this would transform him into the sovereign ruler of the nation.16 The president was actually a "neutral third," a pouvoir neutre, who stood next to, not above, other constitutional institutions. That the president should serve as a pouvoir neutre and as the defender of the constitution, Schmitt argued, was defi­ nitely implied in the Weimar constitution. Directly elected by the German people for a seven-year term, a president was the only officer of the government whose position was based on a democratic mandate, and as such he was in­ dependent of vacillating parliamentary majorities and party coalitions. Through his authority to dissolve the Reichstag, call new elections, and present referendums, the president could act as a counterweight to the Reichstag by appealing directly to the people as a whole, without reliance upon parties. Equally important, the presidential oath obliged him to defend the constitution against anti-constitutional movements. And Article 48, in conjunction with his control over the army, granted the president both the legal au­ thority and the political power to carry out a viable defense of the constitution.17 In practice, both presidents had ac­ cepted this role. At critical points, Ebert had acted as the guardian of the constitution and taken appropriate meas14 15

16 17

Schmitt, Hiiter der Verfassung, pp. 16, 32-33, 40. Ibid., pp. 88-89. Ibid., p. 132. Ibid., pp.158-159.

WEIMAR'S FINAL CRISIS, 1929-1933

ures, and Hindenburg had tried to serve as a neutral and mediating force.18 When Schmitt first introduced the concept of the presi­ dent as the defender of the constitution in an article in March of 1929, he was merely a prominent legal scholar, as isolated from daily political struggles as any German academician.19 Though he must have hoped that the Hindenburg government might take heed of his ideas, he could not have foreseen the extent to which the government would come to rely upon his constitutional interpretations in the near future. Schmitt's transition from university professor to constitutional adviser for the government only began during the course of 1929, when he established a personal relationship with Johannes Popitz, a state secretary in the Reich finance ministry, and with General Kurt von Schleicher, Hindenburg's confidant. Popitz had a reputation as an ingenious financial expert; his opinions commanded a good deal of respect within the bureaucracy. An irreproachable civil servant with sharp political instincts, Popitz viewed his own official and po­ litical behavior in terms of his professional responsibility, and he tried to be impartial. Politics for Popitz was a matter of solving specific problems through deciding on practical alternatives, a type of bureaucratic pragmatism that al­ lowed him to serve a variety of political leaders. In 1932, Papen would appoint him a Reich commissar for Prussia and cabinet minister; and later, after serving as Prussian finance minister and state councillor under Hermann Go­ ring, Popitz became a key conspirator in the conservative resistance and the plot to assassinate Hitler. Sharing similar ideas on the problems of Weimar pluralism and the ne­ cessity of a strong, orderly state, Popitz and Schmitt worked 18

Ibid., p. 139. Carl Schmitt, "Der Hflter der Verfassung," Archiv des offentlichen Rechts, Neue Folge, XVI (March 1929), pp. 161-237. 19

PART I I I

closely together during the waning years of the republic.20 Schmitfs credibility in political and governmental circles was greatly enhanced by his association with Popitz, who also provided Schmitt with invaluable access to information on developments within the government. The relationship between the two men was, however, much more than po­ litical and it grew closer as the years passed. Eventually becoming neighbors, their two families established an in­ timate friendship; for the rest of his life Schmitt spoke fre­ quently, always fondly, of his friend. In 1954, Schmitt ded­ icated a collection of his more important works to Popitz. The decisive figure, of course, was Schleicher, whom Schmitt met through the general's aides Erich Marcks and Eugen Otty two officers highly informed about Schleicher's intentions and political maneuverings. As Schleicher's pub­ lic relations officer, director of the press office in the war ministry, and after August 1932 Reich press chief, Marcks in particular exercised considerable influence on his su­ perior, and was privy to the discussions and decisions of the cabinet. Ott's functions were likewise of a political na­ ture. In addition to heading the armed forces section of the war ministry, he acted as Schleicher's Reichstag observer and later as the liaison in the general's negotiations with Hitler. Ott was also frequently called upon to advise Hindenburg and the cabinet on political questions involving the army. Because of their political association with Schleicher, Marcks and Ott would later be relieved of their Berlin posts by the Nazis; Ott would become military at­ tache in Tokyo, and Marcks would be transferred to a reg­ ular army unit.21 Schmitt's closest contact was with Marcks, 20 Hildemarie Dieckmann, Johannes Popitz: Entwicklung und Wirksamkeit in der Zeit der Weimarer Republik (Berlin-Dahlem, I960), p. 137; Lutz-Arwed Bentin, Johannes Popitz und Carl Schmitt: Zur wirtschaftlkhen Theorie des totalen Staates in Deutschland (Munich, 1972), pp. 10-22, 31-48; Schmitt, Aufsatze, pp. 8, 350. 21 John W. Wheeler-Bennett, The Nemesis of Power: The German Army in Politks, 1918-1945 (New York, 1967), pp. 200, 282; Dorpalen, Hindenburg,

pp. 170, 392-393. See also Eugen Ott, "Ein Bild des Generals Kurt von

WEIMAR'S FINAL CRISIS, 1929-1933

a relationship based on mutual intellectual respect. The professor's influence on the officer was easily discernible in two articles published by Marcks in 1930 and 1931, on the Reichswehr and the state. Marcks' criticism of the Parteienstaat, like his emphasis on presidential neutrality and the power of the president in an Ausnahmezustand, was identical to the ideas Schmitt had been promoting for years.22 Marcks and Schmitt met frequently, and during the critical months of 1932 they had daily telephone conversations. Given their diverse backgrounds, Schmitt and Schleicher were remarkably similar in their political outlooks and ob­ jectives, though Schmitt was at his best in the world of ideas whereas Schleicher's forte was political intrigue. Schleicher excelled at behind the scenes maneuverings that included the appointment and disposition of chancellors and cabinets. No matter how damaging these machinations might have been to his reputation, he was motivated by a sincere concern for the future of Germany and the Reichs­ wehr, rather than by personal ambition. His long-range goal was the establishment of a strong, stable Germany, in which the interests of the Reichswehr would be se­ cured.23 Like Schmitt, he had come to terms with the re­ public out of practical considerations and saw political sta­ bility as the major priority for Weimar. Schleicher never entertained any notion of a return to the old order and he was, in fact, quite alarmed by the reactionary radicalism of the German National People's Party. At the end of the twenties, Schleicher and Schmitt both feared that fratricidal Schleicher: Aus den Erfahrungen seiner Mitarbeiter dargestellt," Politische Studien, X (1959), pp. 360-371. 22 Erich Marcks, "Reich, Volk, und Reichswehr," Wissen und Wehr, Eistes Heft (1931), pp. 1-12, and "Staat und Wehrmacht," Wissen und Wehr, Zweites Heft (1930), pp. 65-82. 23 The most balanced historical accounts of Schleicher are Peter Hayes, " Ά Question Mark with Epaulettes'? Kurt von Schleicher and Weimar Politics," Journal of Modern History, Vol. 52 (March 1980), pp. 35-65; and Thilo Vogelsang, Kurt wn Schleicher: Ein General als Politiker (Gottingen, 1965). See also Craig, Germany, pp. 560-567; and Dorpalen, Hindenburg, pp. 123-124.

PART III

party politics could bring Germany to the brink of civil war or open the way to power for the extremists. They saw the German state as the only bulwark against such a catastro­ phe. It was on this point that the ideas of Schmitt and the politics of Schleicher converged, closing the gap between the realm of theory and the realities of political life. Schmitf s attitudes regarding the role of the state in coun­ teracting the detrimental effects of party strife were clearly shared by those around Schleicher. It was generally agreed that the state must stand above interest politics and rep­ resent the nation as a whole. Speaking before the Kant Society in Halle on May 22,1929, Schmitt reiterated a theme he had expounded upon for years. "The political unit [i.e., the state] is the highest unit," he said, "not because it dictates omnipotently or levels all other units, but because it decides and therefore within itself can hinder all other antagonistic associations. . . . Where it exists, the social conflicts of individuals and social groups can be decided in such a manner that order, i.e., a normal situation re­ mains."24 And in a directive to the army the following January, Schleicher's friend, War Minister Wilhelm Groener, expressed the same views when he wrote: "It is the sacred task of the Wehrmacht to prevent the cleavage be­ tween classes and parties from ever widening into suicidal civil war. In all times of need in the history of a people, there is one unshakable rock in the stormy sea: the idea of the state."25 The central theme of Marcks' writing too was the preservation of national unity through the state, and he warned, "civil war would be the end of Germany."26 In 1929, while Schmitt was establishing these relation­ ships, the crisis that would disrupt Weimar's hopeful in­ terlude and confirm his worst suspicions began to emerge. Early in the year the economy was moving into a slump, leaving about 2,000,000 unemployed, with an additional 24 Schmitt,

"Staatsethik," p. 141. Gordon A. Craig, The Politics of the Prussian Army, 1640-1945 (New York, 1966), pp. 432-433. 26 Marcks, "Reich und Reichswehr," p. 9. 25

WEIMAR'S FINAL CRISIS, 1929-1933

1,000,000 to follow before 1930. At the same time, the agi­ tation against the Young Plan increased popular dissatis­ faction with Weimar and provided the Nazis with an op­ portunity to capitalize on the wave of anti-Versailles and anti-republican sentiment that swept across Germany for most of the year. By October the crisis took on a new dimension with the stock market crash and the death of Stresemann, the one statesman capable of assuring at least temporary cooperation among the moderate parties. To­ ward the end of 1929, it was obvious that the days of the Miiller cabinet were numbered, and it was doubtful whether the current Reichstag could form a new government. There was even less likelihood that a coalition forged under these circumstances could steer the country through its political and economic troubles.27 It was during the winter months of 1929-1930, that Schleicher began promoting his plans for the type of pres­ idential government that would rule Germany for the next three years.28 It would consist of a chancellor and cabinet ministers who, selected independently of narrow party in­ terests, would govern with the general welfare of the nation in mind. This government would not rely upon Reichstag coalitions, but on the authority and confidence of the pres­ ident, and it would have all necessary emergency powers under Article 48 at its disposal. This presidential authority, combined with the support of the army, would make the government sufficiently strong to deal with the economic and political crisis, including the growing strength of the communists and Nazis, thereby preventing Germany from repeating the revolutionary events of 1918, or from expe­ riencing a new round of civil disorders. The presidential government was not intended as a means to destroy de­ mocracy or to institute a sovereign dictatorship. 27

Craig, Germany, pp. 527-535. Hayes, "Schleicher," p. 42; Vogelsang, Schleicher, pp. 56-59; Craig, Germany, pp. 535-538, and Prussian Army, pp. 436-437; Wheeler-Bennett, Nemesis of Power, pp. 200-201. 28

PART III

In order to establish this iiberparteiliche presidential gov­ ernment, Schleicher had to select a chancellor with the necessary acumen and potential for success. By December 1929, Schleicher had decided on Heinrich Briining, a prom­ inent figure in the Catholic Center Party, whose knowledge of fiscal and economic matters, support for the military, and willingness to act decisively with state power made him the most suitable choice.29 But the general still had to convince Hindenburg of the wisdom of this venturesome enterprise and of his choice of Bruning as the appropriate man to head the cabinet. On both points Schleicher was able to enlist the backing of the president's trusted aide, State Secretary Otto Meissner, who believed that a presi­ dential government might be the best solution to this recent crisis.30 Together, Schleicher and Meissner succeeded in getting the president to accept Briining and this new type of government. Meissner was not a member of the Schleicher clique, but as an aide to Ebert and Hindenburg he had acquired first­ hand knowledge of the important role the presidency had played in stabilizing the republic. Moreover, as a legal ex­ pert, he was quite familiar with the constitutional teachings of Schmitt. After Schmitt's article on the defender of the constitution appeared, Meissner wrote: I have taken special interest in your arguments and char­ acterization of the Reich president as the "neutral and mediating force." From my ten years in the office of the Reich president, I can concur that the major activity of both presidents has always been mediation in order to 29 Dorpalen, Hindenburg, p. 171. The argument made by Timm, Grossen Koalition, p. 194, that Bruning had helped undermine the great coalition has been refuted by Rudolf Morsey, "Neue Quellen zur Vorgeschichte der Reichskanzlerschaft Briinings," in Hermens and Scheider, eds., Brii­ ning, pp. 207-231. 30 Ibid., p. 175.

WEIMAR'S FINAL CRISIS, 1929-1933

prevent crisis. . . . I am also convinced that gradually a practice will arise that realizes your tenet. . . .31 Throughout the short life of the presidential system, Meissner's advice would be crucial in reassuring Hindenburg that the policies of the government, particularly the fre­ quent and broad use of Article 48, were justifiable under the constitution.32 For the most part, the presidential system was also well received in the bureaucracy. One official who later worked with Schleicher was Erich Zweigert, a state secretary in the ministry of the interior.33 Like Meissner, he had read the writings of Schmitt; indeed, before Schleicher began to en­ vision the presidential system, Zweigert recognized the potential value of Schmitt's arguments concerning the de­ fender of the constitution. In June of 1929, Zweigert called Schmitt's article "clearsighted and courageous," stating, ". . . it will give me excellent support in the impending discussions with the lawyers from the judiciary over the future of the supreme court."34 Considering this early fa­ vorable response to Schmitt's work by those in the office of the president and in the bureaucracy, as well as his connections with Schleicher, it is not surprising that Schmitf s assistance would soon be requested in preparing a consti­ tutional defense of the presidential government. The first stage of the Schleicher plan was implemented at the end of March 1930. Unable to agree on budgetary matters, the parties comprising the great coalition reached a stalemate and on March 27, the Miiller cabinet resigned. The following day Hindenburg appointed Briining chan­ cellor. Although Briining was willing to work with the cur­ rent Reichstag, his cabinet was not selected on the basis of 31 State Secretary Otto Meissner to Schmitt, April 8, 1929, Schmitt, Per­ sonal Papers. 32 Dorpalen, Hindenburg, p. 188. 33 Eyck, Vieimar Republic, II, pp. 330-331. 34 State Secretary Erich Zweigert to Schmitt, June 4, 1929, Schmitt, Per­ sonal Papers.

PART III

a party coalition. Furthermore, he was determined to in­ stitute his economic programs as soon as possible, and he would, if necessary, circumvent or dissolve the Reichstag. In his opening speech before parliament on April 1, the new chancellor stated unequivocally that the president had requested a cabinet above parties, that the new government would seek immediate solutions to the problems affecting vital national interests, and that this would be its last at­ tempt to work with the current parliament. The presiden­ tial system had become a reality.35 This was the type of leadership and exercise of state 35 Eyck, Weimar Republic, II, p. 258; Craig, Germany, pp. 538-539. The intended purpose, necessity, and effects of the presidential system remain subjects of historical debate. Among others, Karl Dietrich Bracher, The German Dictatorship: The Origins, Structure, and Effects of National Socialism (New York, 1970), pp. 170-172, argues that a parliamentary solution was never seriously attempted before resorting to the presidential system, that rule by emergency decrees only aggravated the crisis of parliamentary government, and that in the end this course undermined democracy itself and conditioned the nation for dictatorship. David Abraham, on the other hand, challenges the very notion that the presidential government was intended to stabilize the Weimar system, stating that ". . . few political or economic figures expected (or wanted) his [Bruning's] government to be the temporary dictatorship that saved the Republic." See Weimar Re­ public, pp. 296-297. Nonetheless, the evidence shows that individuals such as Bruning, Hindenburg, and Schleicher saw the introduction of a pres­ idential government as a necessary means of stabilizing the political sys­ tem and solving the economic crisis; they did not envision it as the first step toward dismantling the Weimar Republic or as the beginning of a permanent dictatorship. This interpretation is also supported by scholars with such diverse historical viewpoints as Hayes, "Schleicher," pp. 4244; Holborn, Germany, pp. 649-651; Morsey, "Reichskanzlerschaft Briinings," and Scheuner, "Die Anwendung des Art. 48," in Hermens and Schieder, eds., Briining, pp. 231, 272-281. Moreover, though there existed different perspectives and expectations regarding this system, no one at the time was able to predict its future direction or final results. As will be shown in the following chapters, some of the strongest opposition to the presidential system came from the anti-constitutional parties of the extreme left and right precisely because they feared that it might succeed in placing Germany back on the road toward political and economic sta­ bilization.

WEIMAR'S FINAL CRISIS, 1929-1933

power Schmitt had been waiting for. Within a week after Briining's Reichstag speech, Schmitt began publicly sup­ porting the new government and the chancellor's goals of instituting sweeping economic measures. As a guest speaker at a conference of the German Chamber of Industry and Commerce on April 8, Schmitt attacked the liberal princi­ ples of "inner-political neutrality" and the "absolute non­ intervention" of the state in the economy.36 Before an au­ dience which included members of the government, the Reichstag, as well as representatives of the press and the business community, he said that under the current eco­ nomic and political circumstances such outdated nine­ teenth-century concepts presented a real danger for Ger­ many.37 The twentieth-century state was clearly an economic state and to a great extent the domestic and foreign policy of a country was political economics. The "unstable coalition-party-state" of Weimar, however, hindered the in­ troduction of policies which were not in keeping with the narrow economic interests of the parties forming a partic­ ular coalition. The economic policies of such coalitions were rarely impartial; often they disregarded the national eco­ nomic interest.38 The solution to Germany's economic woes, Schmitt said, was to be found neither in total state control over the economy nor in a weakening of state involvement in economic matters. On the one hand, depoliticalization was impossible, since politics was an unavoidable conse­ quence of anything of public interest or of concern to the state. "The flight from politics," he stated, "was the flight from the state."39 On the other hand, Schmitt also rejected the alternative of total state control of the economy, as exemplified by the Soviet Union and the stato corporativo of 36 Carl Schmitt, "Neutralitat gegeniiber der Wirtschaft?" Germania, No. 166 (April 9, 1930). 37 Carl Schmitt, "Das Problem der innerpolitischen NeutreJitat des Staates/' Aufsatze, p. 41. 38 Ibid., pp. 54-55. 39 Ibid., pp. 56-57.

PART III

fascist Italy, because both systems were directed by a rig­ idly centralized one-party state.40 What was needed was for the state to make firm political decisions regarding the economy and to institute programs that were in the best interest of the entire nation.41 BriiningrS forthcoming economic program was not the only thing on Schmitt's mind when he delivered this lec­ ture. He was obviously concerned that certain groups might seek to exploit the economic crisis in order to promote plans for constitutional revision, or even to destroy the consti­ tution. Believing that any attempt to alter the existing legal and political order in the midst of this crisis would be ex­ ceptionally dangerous, Schmitt told his audience that the decisive state action in the economic sphere proposed by the new chancellor did not require any changes in, or the abandonment of, the existing constitution. And he cau­ tioned against such plans, noting that ". . . all constitu­ tional possibilities have by no means been exhausted."42 The real problem facing Germany, he emphasized, was not constitutional reform but the lack of national unity. Nonetheless, there were several unresolved constitu­ tional questions concerning the presidential system and the course of action Briining wished to pursue. For if the Reichstag failed to support his programs, Briining intended to institute the same programs through presidential emer­ gency decrees under Article 48. And if the Reichstag voted to rescind these decrees, he was prepared to dissolve par­ liament.43 But legal experts disagreed as to whether a gov­ ernment could stay in office until after new elections in the event that a vote of no confidence led to the dissolution of parliament. It was also questionable whether during the interim a chancellor could institute emergency measures previously rejected by the Reichstag. Herbert Dorn, min40 Ibid., p. 44. « Ibid., p. 57. 42 Ibid., p. 58. ° Dorpalen, Hindenburg, pp. 187-188.

WEIMAR'S FINAL CRISIS, 1929-1933

isterial director of the Reich finance ministry, advised Briining that these legal questions were still points of conten­ tion among jurists, but that the government's position was supported by the constitutional interpretations of Walter Jellinek and Carl Schmitt.44 In a Gutachten (legal interpre­ tation) of April 3, Dorn wrote that these constitutionalists "... are of the opinion that a government which receives a vote of no confidence can countersign the dissolving or­ der of the Reich president and remain in office as the man­ aging government until after new elections . . . and that a legally constituted limitation on its functions for the period after the vote of no confidence is not provided for."45 This interpretation was the type of legal underpinning that Briining needed; it provided the constitutional foundation for the action he would take when his confrontation with the Reichstag reached a climax the following summer. After the Reichstag rejected his financial programs on July 16, Briining abandoned his attempts to work with par­ liament and started putting his programs into effect through presidential emergency decrees. Two days later the Reichs­ tag invoked its constitutional right under Article 48, re­ scinding these decrees by a vote of 236 to 221, whereupon Briining dissolved the Reichstag. Not only did Briining remain chancellor, but he reinstituted his financial program through Article 48, and since the Reichstag had been dis­ solved, it could not rescind these decrees.46 But Briining realized that once a new Reichstag assembled, his govern­ ment might face the suspension of these measures and a challenge to the legality of using Article 48 in financial matters. These problems must have been under consid­ eration by Briining's advisers for some time, because the 44 "Gutachten Dorn zu Punkt 1 der heutigen Ministerbesprechung. (3.4.1930): Zur Frage der Anwendung des Artikels 48 der Reichsverfassung und der Auflosung des Reichstags," Reichskanzlei, R-43-I, 1870, BA, pp. 107-110. 45 Ibid., pp. 108-109. 46 Eyck, Weimar Republic, II, pp. 269-274.

PART III

government had requested Schmitt to write a Gutachten on the authority of the president to issue emergency financial decrees under Article 48. Schmitt completed this work on July 28, and within two days it was already circulating through various government offices.47 The arguments Schmitt presented in his Gutachten were consistent with the constitutional interpretations he had previously formulated on the power of the president and Article 48. He noted, however, that over the past ten years the nature of an Ausnahmezustand and of emergency decrees had changed, and that these new developments must now be considered a part of German constitutional law. Gov­ ernment practice, decisions of the supreme court, and the opinions found in legal literature now supported the ex­ tension of presidential authority to financial and economic states of exception.48 So long as a president observed the constitutional limitations on his authority, he could exer­ cise his exceptional powers in financial matters because, in the current situation, the economic crisis could constitute a real threat to public order and security.49 And Schmitt cited several precedents for such action which had already been set by President Ebert during the economic crisis of 1923-1924.50 Furthermore, as a consequence of these prac­ tices, presidential emergency decrees now went beyond the status of mere measures (Massnahmen). Though still not formal laws, as would be passed by the legislature, pres­ idential decrees carried the authority of law. Thus, the eco­ nomic and financial programs of the present government did not require formal laws and could be instituted through presidential decrees which substituted for laws (gesetzver47 Carl Schmitt, "Verfassungsrechtliche Gutachten iiber die Frage, ob der Reichsprasident befugt ist, auf Grund des Art. 48 Abs. 2 RV. finanzgesetzvertretende Verordnungen zu erlassen" (July 28,1930), Reiehskanzlei, R-43-I, 1870, BA. 48 Ibid., pp. 1-6. « Ibid., pp. 3, 6-7. 50

Ibid., p. 4.

WEIMAR'S FINAL CRISIS, 1929-1933

tretende Verordnungen).51 Schmitt added that he personally still adhered to the distinction between measures (Massnahtnen) and laws (Gesetze), but that in practice this differ­

ence had been blurred.52 Schmitt did not consider such broad presidential power a usurpation of the constitutional authority of the Reichs­ tag. The constitution, he explained, granted the Reichstag the right and the opportunity to check the power of the president. "It is self-evident," he wrote, "that a limitless, uncontrolled competency of the Reich president is not being advocated here. . . . [and] that the actual limits of the ex­ ceptional power of the Reich president and the actual se­ curity against the misuse of his power reside in the control authority of the Reichstag. . . ."53 A majority vote in the Reichstag could immediately suspend any emergency de­ cree. In the case of decrees instituted while the Reichstag was not assembled, the government was constitutionally obligated to present these decrees to the newly elected or assembled Reichstag for consideration. A Reichstag could also exercise its constitutional power as a legislative body, form coalitions, and institute its own programs, thereby making presidential decrees unnecessary.54 However, Schmitt concluded his Gutachten by criticizing a Reichstag which would use its constitutional authority to restrict the government's ability to act, even though that Reichstag itself was incapable of forming a majority. In the past, such opposition tactics had been useful in the legis­ lature's struggles with a monarchical government. But it would be contrary to the spirit of a republican constitution, Schmitt stated, if these tactics "... should now be used in order to incapacitate a republican government."55 The Briining government was delighted with this Gut51

Ibid., pp. 7-13. Ibid., p. 11. 53 Ibid., p. 22. 54 Ibid., pp. 22-23. 55 Ibid., pp. 23-24. 52

PART III

achten, and considered Schmitt's arguments one of the

strongest legal defenses the government had of its emer­ gency measures. State Secretary Dorn immediately for­ warded the Gutachten to Briining on July 30. In a covering letter to the chancellor, Dorn wrote: 'The conclusion to which this work comes is all the more satisfactory because Prof. Schmitt is one of the few constitutionalists who until now basically refused to recognize the decreeing power of the Reich president on the basis of Article 48. In case hes­ itations from other sides should be forthcoming, this Gutachten would, for that reason, be an essential foundation for our position."56 For the next several months, Schmitt's Gutachten was the subject of telephone conversations and correspondence between the chancellery, finance ministry, and ministry of the interior.57 The government had ac­ quired the constitutional justification it needed for the pres­ idential system, and Schmitt found a government he thought was capable of acting in accordance with his theoretical formulations on the exercise of state power. Armed with this constitutional interpretation, Bruning proceeded with his financial reforms under Article 48 for the next two months, while awaiting the Reichstag elections scheduled for September 14. 56 State Secretary Herbert Dorn to Chancellor Briining, July 30, 1930, Reichskanzlei, R-43-I, 1870, p. 285. 57 Ministerial Director Viktor von Hagenow to State Secretary Zweigert, August 2, 1930; Zweigert to von Hagenow, August 2, 1930; Zweigert to State Secretary Hermann Kinder, October 10, 1930. Reichskanzlei, R-43-I, 1870, BA, pp. 311-312, 322.

SEVEN

PRESIDENTIAL GOVERNMENT IN THE MIDST OF CONTROVERSY

THE elections of September 14, 1930, were a turning point in the history of the Weimar Republic and a great disap­ pointment to Schmitt. In his Verfassungslehre, Schmitt had argued that the right to dissolve parliament and call new elections was one of the democratic means available to a president to counteract an obstructionist Reichstag.1 The direct appeal to the people, Schmitt wrote, was a procedure that no good democrat could contest. And to a large extent, the viability of the presidential system, as Schmitt envi­ sioned it, depended upon this authority. Although Bruning's decision to dissolve the Reichstag was in no way influenced by Schmitt, the chancellor also believed that new elections were the best method of overcoming the stalemate and resistance in the Reichstag, and he hoped that the nation would rally to a strong government. Briining had risked elections because he felt that a majority of the German people had become impatient with the ob­ structionist Reichstag and were willing to return a parlia­ ment that would support his programs.2 He gambled that the radical right and the Social Democrats would lose votes and that the new Reichstag would include a majority of deputies from the moderate right and the Catholic Center Party, who would submit to his leadership. But the political wisdom of holding elections in the midst of an ever wors­ ening depression was questionable. Moreover, contrary to Schmitt's expectations, the elections were never perceived as a presidential appeal to the people, because during the 1 2

Schmitt, Verfassungslehre, pp. 358-359. Craig, Germany, pp. 539-540.

PART III

campaign Hindenburg declared himself neutral and did not publicly endorse Bruning or his programs.3 As it turned out, the September elections did not provide a solution to the parliamentary impasse. The elections were a great victory for the radicals, and for all practical purposes the results signaled the end of a workable parliamentary form of government in Germany. Most shocking was the ominous forward surge of the Na­ tional Socialists from 12 seats in 1928 to 107 in the new Reichstag. The gains on the extreme left, where the com­ munists rose from 54 to 77 seats, compounded the prob­ lems of the republic. Although the Social Democrats re­ mained the strongest party, reduced by only 10 seats to 143, the two most radical, anti-republican parties, the NSDAP and KPD, were now the second and third largest in the Reichstag. Briining's hope of acquiring a submissive par­ liament and the support of the moderate right was shat­ tered, as the rightist parties lost many of their seats to the Nazis. Given the new distribution of Reichstag seats, no majority coalition could be formed, with the exception of a rightist government that included the National Socialists. The resurrection of a great coalition was impossible because the parties which had previously constituted such a gov­ ernment controlled only 47 percent of the votes in the Reichstag. Unwilling to take the Nazis into the govern­ ment, Briining was forced to organize a minority cabinet based on the Center Party and several small rightist groups. The SPD tolerated the new government because it feared that a vote of no confidence would result in another round of elections and further gains by the extremists.4 The Nazi threat assured that the Reichstag would not reject Briining's emergency decrees. And for the next two years Ger­ many would be governed by the presidential system. Like many of his contemporaries, Schmitt had under3

Dorpalen, Hindenburg, pp. 189-194. Ibid., pp. 197, 206-208. AUred Milatz, "Das Ende der Parteien im Spie­ gel der Wahlen 1930 bis 1933," Das Ende der Parteien, pp. 756-758. 4

WEIMAR'S FINAL CRISIS, 1929-1933

estimated the potential of the Hitler movement. When he first encountered the National Socialists in Munich, in the years immediately after World War I, he considered them an insignificant fanatical group which he could not take seriously. As the Nazis started to acquire support through­ out Germany in the late twenties, he began to view them as an anti-constitutional party which, like the communists, should not be given the opportunity to destroy the repub­ lic. As early as April of 1930, he wrote that a state and constitution could not remain neutral toward their own existence; anti-constitutional parties must be denied the equal chance to acquire power, particularly when their goals included the destruction of the very legal order which of­ fered them that opportunity.5 Such absolute neutrality, Schmitt said repeatedly, was an absurdity. Consequently, he favored the Law for the Protection of the Republic, which made acts against the republic a treasonable crime, and he supported restrictions against Nazi and communist civil servants and against the use of the radio by these groups.6 There was, however, no sense of urgency in Schmitt's early references to the Nazis. But after the Nazi and communist upsurge in 1930, Schmitt was continually haunted by the spectre of a possible extremist seizure of power by legal or revolutionary means. The return of political violence and public disorder in the following months, reminiscent of earlier years, added to his concern. He felt that the presi­ dential system was more necessary than ever, not merely to keep the government functioning and to lead the country through the economic crisis, but also to serve as a check against the communists and Nazis. And under the circum­ stances, he expected a more vigorous exercise of presiden­ tial emergency powers. Schmitt's stance on the legality and necessity of the pres5 Carl Schmitt, "Neutralitat gegeniiber der Wirtschaft," Germattia No. l 166 (April 9, 1930). 6 Carl Schmitt, Hugo Preuss: Sein Staatsbegriff und Seine Stellung in der deutschen Staatslehre (Tubingen, 1930), p. 32.

PART III

idential system was similar to the position taken by many republicans. In a book explaining the position of his party, the Centrist Reichstag deputy Georg Schreiber stated that the use of Article 48 was unavoidable; the Reichstag had provided no alternative and had forced the government to seek a solution on its own. "The common good (Volkswohl)," he wrote, "stands higher than parliamentary dis­ cussion and party strife."7 The emergency measures ". . . have nothing to do with dictatorship," because the Reichstag has the final word.8 One would expect, of course, that the Center Party would back Briining, a leader of the Catholic Reichstag faction. But the fact remains that the Center was still determined to uphold the constitution, and Schreiber's arguments were echoed by the liberal-demo­ cratic press as well. The Vossische-Zeitung, the Frankfurter Zeitung, and the Berliner Tageblatt agreed that the broad use of Article 48 was required to contain radicalism; the pres­ ident and chancellor, the "trustees of the nation," had to fill the power vacuum created by irresponsible parties.9 Similar views were expressed by Professor Carl J. Friedrich of Harvard University in an article written for the Oc­ tober 1930 edition of Foreign Affairs. Although he had left Germany in 1922, Friedrich kept himself well informed of political developments in his native land, and subsequently he became one of the most highly regarded thinkers on the subject of totalitarianism. Qting what he called Schmitfs "epoch-making discussion" of Article 48, Friedrich noted that the presidential system was necessary ". . . to tide the country over a temporary impasse"; it did not imply the establishment of a dictatorship.10 "As has been shown by 7 Georg Schreiber, Zentrum und Reichspolitik: Ein politisches Handbuch in Frage und Antwort (Cologne, 1930), pp. 8-9. 8 Ibid., p. 29. 9 Modris Eksteins, The Limits of Reason: The German Democratic Press and the Collapse of Weimar Democracy (London, 1975), pp. 216-218. 10 Carl Joachim Friedrich, "Dictatorship in Germany?" Foreign Affairs,

Vol. 9, No. 1 (October 1930), pp. 129, 132.

WEIMAR'S FINAL CRISIS, 1929-1933

Carl Schmitt, one of the most astute constitutional theo­ rists, Article 48 is peculiarly ill adapted to such purposes; for its end is, as has been said before, the maintenance of the Constitution."11 Friedrich's concluding reference was to the president: "Truly benevolent despotism of this sort forestalls internal chaos and a complete breakdown of the government, particularly when it is placed in the hands of a man who has grown old in unswerving loyalty and serv­ ice to his country."12 Schmitt's constitutional interpretations were also corrob­ orated by one of his critics, Richard Thoma, who presented the government with a Gutachten on October 7,1930, deal­ ing specifically with the constitutionality of the emergency decrees issued on July 26.13 Although Thoma had reser­ vations about the legality of individual parts of certain de­ crees, he held that in general they were constitutionally justifiable. Considering the existing social situation, the threatening insufficiency of public funds constituted a con­ siderable danger to public security and order in the sense of Article 48.14 He also concurred with Schmitt on the point that these decrees carried the authority of law.15 Nonetheless, there was widespread opposition to the presidential system. The Weltbuhne, the most important journal of the intellectual left, speculated that perhaps Briining wanted to institute a Catholic dictatorship. Carl von Ossietzky charged that the arguments of the republi­ can press—that the emergency measures were needed to halt the "growing terror of National Socialism"—were spe11

Ibid., p. 131. Ibid., p. 132. 13 Richard Thoma, Rechtsgutachten iiber die Verfassungsmiissigkeit der Verordnung des Reichsprasidenten zur behebung financieller, wirtschafllicher und sozialer Notstiinde vom 26. Juli 1930, Reichskanzlei, R-43-I, 1870. 14 Ibid., p. 14. 15 Ibid., pp. 37-40. For further clarification of Schmitt's position on the constitutional right of the state to intervene in the economy through Article 48 and the legal limits of such power see Ernst Rudolf Huber, Das deutsche Reich als Wirtschaftsstaat (Tubingen, 1931). 12

PART III

cious, because the Bruning government was not serious about the struggle against fascism.16 But the greatest out­ cries against the alleged unconstitutional course pursued by the government came from those groups which had never expressed any sympathy for the constitution, or which had as their political goal the destruction of the republic. The German National Party, a bastion of authoritarianism, now defended the rights of parliament against the "illegal" decrees issued under Article 48. And on the grounds that the government had not received a constitutionally re­ quired vote of confidence, the Nazis called for the "illegal" Briining cabinet to resign, while the communists were of the opinion that a fascist dictatorship already existed under Bruning.17 This recent conversion to constitutionalism was, of course, purely political. The DNVP would surely have rallied to Briining if the chancellor had disassociated him­ self completely from the SPD and used Article 48 to insti­ tute reactionary and authoritarian policies. And the KPD and NSDAP were worried that the presidential system might undermine their position by solving the economic crisis, or that Article 48 might be used to suppress their move­ ments. Within the legal profession, however, there was a sincere concern about the constitutional implications of such broad use of emergency powers, particularly regarding their ex­ tension into new areas, such as taxation and the bureau­ cracy. These questions were thoroughly discussed at the last conference of the Association of German Constitutional Lawyers held at Halle in 1931. Despite Schmitt's spirited defense of the presidential system before this body, the majority of participants considered the current practice of governing by Article 48 an abuse of the constitution, and 16 Carl von Ossietzky, "Katholische Diktatur," Die Weltbuhne,Jg XXVII, Band 1, No. 14 (April 7, 1931), pp 481-487 17 Dorpalen, Htndenburg, pp 206-211, Eyck, Weimar Republic, II, pp 290295; Halperin, Germany, pp 454-456.

WEIMAR'S FINAL CRISIS, 1929-1933

they warned against its continuation.18 Henceforth, more and more jurists began referring to the "dictatorial power of the Reich president," and the "dictatorial Article 48 of the constitution." When Schmitt's work on the president as the defender of the constitution first appeared in book form early in 1931, Hans Kelsen accused Schmitt of trying to construct an ideology by mixing science and politics. Schmitf s interpretation of presidential power, Kelsen wrote, was nothing less than an attempt at reviving the doctrine of constitutional monarchy.19 In the highly charged atmosphere of late Weimar, the suspicion that the presidential system might be the first stage of a dictatorship rather than the salvation of the re­ public was quite understandable. For there were those who looked to the presidential system as a transition to some kind of authoritarian "New State" that would replace the bankrupt republic and its rule by political parties. The most outspoken exponents of this political goal were the con­ servative intellectuals associated with Die Tat, the Herrenklub, and the Politisches Kolleg.20 Their continual lam­ basting of the republic, like their vague assertions about a new type of government, reinforced concerns about where the presidential system was heading. And the appearance of Schmitt's name in the publications of these groups only increased such doubts.21 For as Schmitt had become better known in intellectual circles after his arrival in Berlin, he began to attract the attention of the conservative revolu­ tionary movement. In 1930, two of the most influential journals of the intellectual right, Der Ring, edited by Heinrich von Gleichen, and Der Kunstwart, began reporting on 18 Willibalt Apelt, Jurist im Wandel der Staatsformen: Lebenserinnerungen (Tubingen, 1965), p. 192; Scheuner, "Die Vereinigung," pp. 353-354. 19 Hans Kelsen, Wer soli der Hiiter der Verfassung sein? (Berlin, 1931), pp. 8-10, 41-47, 53-56. 20 Klemperer, Conservatism, pp. 120-138. 21 Kurt Sontheimer, "Der Tatkreis," in Von Weimarzu Hitler, 1930-1933, ed. Gotthard Jasper (Cologne, 1968), pp. 197-228.

PART III

SchmittrS lectures and publications; about the same time writers for Die Tat started citing Schmitt's work.22 In the hands of the editors of Die Tat, Hans Zehrer and Horst Griineberg7 Schmitt's ideas became clay, molded or disregarded to suit their own arguments, and his schol­ arship became a credible source to cite in defense of a particular point.23 Rarely were Schmitt's writings explained fully. In their relentless assaults on the republic, these au­ thors used a simplistic interpretation of Schmitt's book on parliamentarianism to prove that parliamentary govern­ ment was "at the point of death."24 Zehrer, for example, would quote from Schmitt in order to show that the pres­ ident and the army were the keys to future developments. But contrary to Schmitt's constitutional teaching, Zehrer expected the president and the army to introduce an au­ thoritarian government that would eliminate parliamentary rule and establish a postcapitalistic economic system from above.25 Many central ideas and much of the terminology in Griineberg's articles were also borrowed from Schmitt. But when filtered through Gruneberg7S writing, works such as Der Hiiter der Verfassung appeared to justify the trans­ formation of the German state into a dictatorship. The proper retort to the question "Parlamentarismus, was sonst?" ex­ claimed Griineberg, was "Demokratische Diktatur, was sonst?"26 22 "Zum Kapitel Staatsethik," Der Ring, Jg. 3, Heft 40 (October 5,1930), pp. 700-702; "Carl Schmitt iiber den totalen Staat," Der Ring, Jg. 3, Heft 51 (December 21,1930), p. 912; Clemens Bauer, "Besprechung, Der Hiiter der Verfassung," Der Kunsiwart, Jg. 44 (October 1930-September 1931), pp. 809-812; Martin Merck, "Artikel 48," Der Ring, Jg. 3, Heft 31 (August 3, 1930), pp. 547-548. 23 Hans Zehrer, "Rechts oder Links?" Die Tat, Jg. 23, Heft 7 (October 1931), p. 509; Horst Griineberg, "Die foderalistische Kulisse," Die Tat, Jg. 23, Heft 4 (July 1931), pp. 286-303; and "Mittelstandspolitik-Staatspolitik," Die Tat, Jg. 23, Heft 3 (June 1931), pp. 203-210. 24 Horst Griineberg, "Zur Theorie des Antiparlamentarismus," Die Tat, Jg. 22, Heft 2 (May 1930), pp. 115-121. 25 Hans Zehrer, "Die Kalte Revolution," Die Tat, Jg. 22, Heft 7 (October 1930), pp. 510-511; Struve, Elites, pp. 371-372. 26 Horst Griineberg, "Diktatur ante portas!" Die Tat, Jg. 22, Heft 3 (June 1930), pp. 194-202.

WEIMAR'S FINAL CRISIS, 1929-1933

As a result, Schmitfs writings, which had long been praised for their scholarly value, were turned into political prop­ aganda; carefully formulated concepts became catchy slo­ gans. Misconceptions of Schmitfs actual political standpoint were also created by the apparent close connection that later developed between Die Tat and Schleicher in the fall of 1932. For a while, Zehrer looked to Schleicher as the man who might be able to carry forth the plans for the "New State," and supposedly Zehrer's journals had be­ come a mouthpiece for the government. But Zehrer and Schleicher were never as closely aligned as generally as­ sumed. Schleicher suspended his financial assistance to Zehrer's publications before the end of 1932, and Zehrer became a leader in the press campaign against alleged fi­ nancial corruption in the Hindenburg government.27 Such ephemeral and fickle affiliations were typical of the topsy­ turvy political conditions of these years. Furthermore, though Schmitt could not be categorized as a conservative revolutionary, he did associate with sev­ eral of that movement's more prominent figures. Most no­ table among these was the enigmatic, often shocking Ernst Jiinger, an existential critic of bourgeois society who had a nihilistic preoccupation with action and war. Schmitt first encountered Junger in 1930, and this was the beginning of a lifelong friendship. Jiinger introduced Schmitt to Ernst Niekisch, whose National Bolshevist movement was an odd amalgamation of radical rightist and leftist tenets.28 For a short while, these three men frequently gathered for intellectual and political discussion. It was also in 1930 that Sehmitt first met Wilhelm Stapel, editor of Deutsches Volkstum, a widely read conservative journal.29 Stapel's political philosophy was a blend of Christianity, extreme nation27

Dorpalen, Hindenburg, pp. 415-416; Struve, Elites, pp. 372-374. Niekisch, Gewagtes Leben, p. 242. 29 Heinrich Kessler, Wilheltn Stapel als politischen Publizist: Ein Beitrag zur Geschichte des konservatiOen Nationalismus zwischen den beiden Weltkriegen (Nuremberg, 1967), pp. 148-149. 28

PART III

alism, an abiding concern for social problems, and virulent anti-Semitism which, curiously enough, was matched only by his contempt for the National Socialists. A co-worker of Stapel, Albrecht Erich Giinther, was a friend of both Schmitt and Schleicher's aide Erich Marcks.30 Like Schmitt, these men were staunch nationalists and harsh critics of contemporary society. They longed for a strong German state and were disdainful of the party pol­ itics that caused disunity and weakened the nation from within. Yet, here the similarities ended. For they differed immensely in their views on the origins of Weimar's prob­ lems and on possible solutions. Schmitt's friendship with Junger was based on a mutual fascination with each other's intellect. Jiinger was ecstatic over Schmitt's friend-enemy concept and Schmitt found many of JiingerrS writings sig­ nificant because they were a manifestation of major tran­ sitions taking place in German society and political thought.31 But neither Junger's nihilism nor his ideas on the total mobilization of society into a worker-soldier state were ever shared by Schmitt. The jurist doubted that Junger's pro­ gram pointed the way to a national revival. In a conver­ sation with the writer Franz Blei early in 1931, Schmitt said that he could foresee a situation in which the Nazis would use Junger to lead their troops to victory and then cast him aside, because there would be no place for him or his ideas within their new order.32 And the incompatibility of Na­ tional Bolshevism with Schmitt's traditional conservative views assured that the relationship between him and Niekisch was short-lived. By 1932, Niekisch, a radical oppo­ nent of Weimar, was publicly accusing Schmitt of defend­ ing a Staatsstreich.33 Schmitf s relationship with Stapel and Giinther was equally 30

Ibid., p. 147; Schmitt, Hamlet, p. 16. Emst Jiinger to Schmitt, October 14, 1930, Schmitt, Personal Papers; Schmitt, Hiiter der Verfassung, p. 79. 32 Blei, "Gesprach," pp. 526-527. 33 Niekisch, Gewagtes Leben, p. 242. 31

WEIMAR'S FINAL CRISIS, 1929-1933

complex. Schmitt found in these men two of the most en­ thusiastic supporters of the presidential system. All three of them felt that Schleicher, whose schemes they backed until the end of Weimar, was the pivotal figure throughout the crisis. Schmitt and the editors of Deutsches Volkstum also had a common, deep antipathy toward National So­ cialism. Giinther and Stapel recognized that the Nazis were a powerful popular force which articulated many of the nationalistic sentiments of the German people. But at the same time they regarded National Socialism as a danger­ ous, irresponsible mass movement whose leaders must be prevented from acquiring power.34 There were, however, fundamental differences between Schmitt and Stapel con­ cerning the Jewish question and the future course of the presidential system. Stapel attributed many of Weimar's ills to the Jews, whom he excluded from his circle, but Schmitt never engaged in any of the vitriolic, irrational antiSemitic polemics that filled the pages of Deutsches Volkstum. Anti-Semitism constituted no part of Schinitfs analysis of Weimar's political or social problems; no anti-Semitic ref­ erences, or even tendencies, can be detected in Schmitfs Weimar writings or personal relationships.35 Moreover, Stapel saw in the presidential system an opportunity to realize at last the long-awaited conservative revolution that would usher in an era of rejuvenated Christian conserva­ tism within a new authoritarian state.36 In contrast, the strong state Schmitt frequently spoke of in these years was to be achieved within the context of the Weimar consti­ tution, because it was the only legal framework in which legitimacy and political authority could be determined. Schmitt believed that the president and the army were the last hope of restoring stability and of preventing a seizure of power by the radicals. He realized that the power of the 34 Albrecht Erich Gfinther, "Sollen die Nationalsozialisten 'regieren'?" Deutsches Volkstum, Maiheft (1932), pp. 381-385; Kessler, Stapel, p. 147. 35 Schwab, Challenge, pp. 136-137. 36 Klemperer, Conservatism, p. 129.

PART III

president rested upon his constitutional authority, and that this legitimacy might be undermined if the validity of the constitution was ever called into question. Attempts at con­ stitutional change, or at establishing an authoritarian state from above, could meet with resistance and possibly lead to civil war. Even short of domestic conflict, once the proc­ ess of constitutional revision started, who could foretell its outcome? Could not this process, and the diminishing au­ thority of the existing constitution that would naturally accompany it, be exploited by the Nazis or the left to pro­ mote their political goals or to topple what was left of the Weimar order? A state of civil and legal chaos, similar to the one Germany had experienced in the revolutionary period that followed the collapse of the monarchy, might very well result. From the very beginning of the presidential system, Schmitt took a strong public stand against constitutional change. In fact, of the three articles he published in journals associated with the conservative revolutionary movement, two warned against tampering with the constitution, and the third urged voters not to give the Nazis an electoral majority.37 Not just in his writings, but also in his speeches, Schmitt made it categorically clear, as Carl J. Friedrich rec­ ognized, that the presidential system was the equivalent of a commissarial dictatorship intended to preserve the existing legal order. In a speech he delivered in October 1930 before a conference of the Langnamverein, a presti­ gious industrialist organization, Schmitt said, "I would not consider any fundamental constitutional reform at this time."38 The proper course was for ". . . the legal Reich 37 Carl Schmitt, "Eine Warnung vor falschen politischen Fragestellungen," Der Ring, Jg. 3, Heft 48 (November 30, 1930), pp. 844-845; "Zur politischen Situation in Deutschland," Der Kunstwart, Jg. 44, No. 4 (Oc­ tober 1930-September 1931), pp. 253-256; and "Legalitat und gleiche Chance politischerMachtgewinnung," Deutsches Volkstum, Juliheft (1932), pp. 557564. 38 Schmitt, "Zur politischen Situation," p. 255.

WEIMAR'S FINAL CRISIS, 1929-1933

government to make use of its constitutional authority," in order to institute necessary economic reforms.39 Schmitt compared himself to a technician who would warn against changing engine parts while an automobile was in motion. The existing constitution, he concluded, ". . . was better left alone, unless one wanted to open the way for incal­ culable and dangerous experiments."40 Several months later, Schmitt reiterated this point in an address to members of the bureaucracy. The president, he said, must rely upon the legally sanctioned prerogatives available to him. When necessary, this would include the temporary suspension of certain sections of the constitu­ tion as authorized by Article 48, because no individual part ". . . of our constitution is more important than the pro­ tection of the constitution itself."41 But, he added, the pres­ ident's authority under Article 48, though exceptionally broad, was by no means unlimited and was still counter­ balanced by the Reichstag. Presidential emergency decrees do not constitute ". . . a dictatorship in some revolutionary sense or a Staatsstreich. They do not bring into play a new principle of government, but in a difficult situation attempt to protect the existing constitution against the breakdown of its central organs."42 Although conservative revolution­ aries in general tended to ignore this crucial element in Schmitt's concept of the presidential system, Zehrer him­ self recognized that Schmitt had not abandoned the re­ public. "Schmitt and Heller," Zehrer wrote, "still shy away from the final consequences of their ideas. They both hold open the way back, perhaps because they themselves see no new goal."43 x Ibid.

taIbid.,

p. 256. Schmitt, "Die staatsrechtliche Bedeutung der Notverordnung, insbesondere ihre Rechtsgiiltigkeit," Aufsatze, pp. 244-245. i2 Ibid., p. 260. 43 Hans Zehrer, "Der Weg in das Chaos: Enthiillungen, Skandale, Sensationen," Die Tat, Jg. 21, Heft 8 (November 1929), p. 568. 41 Carl

PART III

During this period, Schmitt was not generally looked upon as a prophet of the "New State," or as a conservative revolutionary. His contact with Junger and Stapel was just one aspect of the diverse personal and intellectual rela­ tionships he established throughout his life. An insatiable thirst for new ideas and stimulating discussion led Schmitt to seek a dialogue with thinkers of various political and ideological persuasions. Because of his reputation, Schmitt was sought out by others, and he in turn was flattered by this attention. Despite criticism of many of his ideas and political attitudes, Schmitt was still highly regarded by in­ tellectuals outside conservative circles. Felix Gilbert, then a student in Berlin and later a professor at Princeton's In­ stitute for Advanced Study, recalled how impressed he was by Schmitt's brilliance during a long discussion they had around this time. Schmitt struck Gilbert as a man of great political ambition who was impatient with the government, but who was definitely not an enemy of the republic. On the contrary, Gilbert saw Schmitt's presence in the capital as a strengthening of the republican faction in Berlin aca­ demic circles.44 And though Schmitt's ties with Catholic groups had weakened over the past few years, the Catholic press still looked favorably upon him. "One never comes away from you unenlightened," wrote Carl Muth to Schmitt in 1930, and Muth continued to solicit articles from Schmitt for Hochland.45 Similarly, Germania and the Kolnishe Volkszeitung continued to publish articles by Schmitt and provided de­ tailed descriptions of his speeches.46 This enduring interest can be explained, in part, by the Center Party's attempt to rally public opinion behind Briining, for Schmitt's publi44

Professor Felix Gilbert to author, January 31, 1977. Carl Muth to Schmitt, February 8 and September 18, 1930, Schmitt, Personal Papers. 46 For example, see Carl Schmitt, "Die Einberufung des vertragten Reichstages," Kolnische Volkszeitung, Jg. 71, No. 542 (October 23, 1930), P- 145

WEIMAR'S FINAL CRISIS, 1929-1933

cations were among the most positive support the govern­ ment received. Such consideration must have influenced the editors of Germania when they decided to publish an unusually long article by Johannes Popitz on Schmitt's con­ cept of the defender of the constitution. Written with a sense of urgency, Popitz's somber piece warned of the grave danger to the constitution created by the current situation. Using Schmitf s analysis of the Parteienstaat, Popitz asserted that the security of the state and constitution could be guaranteed only by the presidency, the one in­ stitution that had displayed an "objectivity and neutrality" above parties, and that had the constitutional authority to fulfill this obligation. "The president," he wrote, "is the defender of the constitution and this conclusion stands in complete agreement with the democratic principles on which the Weimar constitution is based."47 The political mileage that might be gained from Schmitf s work should not obscure the fact that, as a scholar and teacher, he had a great deal to offer. Several members of the Hochschule fur Politik certainly thought so. Two days after he delivered a public lecture on Hugo Preuss at the Handelshochschule on January 18, 1930, Schmitt received a very cordial letter from Theodor Heuss thanking him for the "strong intellectual stimulation." Heuss, a liberal-dem­ ocrat and later president of the Federal Republic, described Schmitt's talk as "very valuable," remarking: "I sincerely hope that the lecture will be made available in print."48 Until the Nazi seizure of power, in fact, Schmitt was a frequent guest speaker at the Hochschule fiir Politik, which in 1931 published another of his lecturers in its series "Prob47 Johannes Popitz, "Werist Huter der Verfassung," Germania, Jg. 61, No. 176 (April 17, 1931). 48 Theodor Heuss to Schmitt, January 20, 1930, Schmitt, Personal Pa­ pers. In his memoirs, Heuss was very critical of Schmitt and never men­ tioned this letter. See Theodor Heuss, Erinnerungen, 1905-1933 (Tubingen, 1963), p. 303.

PART III

lems of Democracy."49 That institution, of course, had a policy of bringing together lecturers with divergent political viewpoints so as to serve as a forum for airing all sides of public issues. But the Hochschule regarded Schmitt as much more than another representative of a particular political perspective. His scholarly credibility was such that the Hochschule also invited him to teach several courses on law and politics between 1930 and 1933.50 This does not suggest that those at the Hochschule agreed with Schmitf s political views, but it does indicate the extent to which his scholarship was respected. The classic study of Weimar parties that Sigmund Neu­ mann completed at the Hochschule in the fall of 1931, for example, revealed a direct Schmittian influence. Neumann, who had read Schmitt's major works, did not consider the jurist a conservative revolutionary. In his discussion of the major figures and literature related to this movement, Neu­ mann made no reference to Schmitt.51 Thus, at the same time that the writers at Die Tat were quoting from Schmitt's book on the crisis of parliamentarianism in their anti-re­ publican diatribes, Neumann was relying upon this work as a scholarly source for his analysis of political parties.52 Indeed, there were striking similarities between the way Neumann and Schmitt viewed the German party system and the impact it had on parliamentary government. Ac­ cording to Neumann, most parties, organized along the lines of class interest, ideology, or religion, attempted to "integrate" their constituents completely into the party structure and thereby draw a sharp distinction between ® Carl Schmitt, "Die neutralen Grossen im heutigen Verfassungsstaat," Probleme der Demokratie: Eine Ausgabe der deutschen Hochschule fiir Politik (Berlin, 1931), pp. 48-56. The original manuscript is still in the files of the Hochschule fiir Politik, Geheimes Staatsarchiv, Preussischer Kulturbesitz, Rep. 303, No. 181, Berlin. 50 Hochschule fiir Politik, Rep. 303, Nos. 168, 169, 246. 51 Neumann, Die deutschen Parteien, pp. 129-133. 52 Ibid., pp. 115-116, 128.

WEIMAR'S FINAL CRISIS, 1929-1933

them and other segments of society. This created a rigidity in the political system in which exclusive, uncompromising parties confronted each other, making the formation of coalitions difficult, if not impossible.53 "The breakdown of parliament," he wrote, "will out of necessity lead to the rise in importance of other political power factors, perhaps the Reich president [or] the Reich government. . . Z'54 The possibility was still open for the parties to adjust and trans­ form themselves so as to create a workable political system; whether they would do so was a question for the future. But at present, the traditional liberal ideal of persuasion through political discussion was being undermined. "Dis­ cussion becomes meaningless," Neumann stated, "where one's partner has already decided on his position before the discussion has begun. . . . As a result the intellectual foundations of liberalism and parliamentarianism have been shaken."55 That was exactly the point Schmitt had been trying to make since 1923. In the context of 1931, the bleak description of Weimar parliamentary government presented by Schmitt and Neu­ mann was actually an understatement. The unruly behav­ ior and obstructionist tactics of the National Socialist dep­ uties in the Reichstag made a mockery of parliamentarianism itself. Not only did the Nazis oppose all serious legislation and initiate countless unnecessary debates on points of order, but their catcalling and clamor forced the suspension of several parliamentary sessions.56 The Nazis continually lambasted the government with charges of treason and on certain occasions when an alleged Marxist began to speak, the entire Nazi contingent marched out of the room. Ap­ proximately 400 motions of censure were filed against Nazi 53 54 55 56

298.

Ibid., pp. 110-112. Ibid., p. 113. Ibid., p. 111. Halperin, Germany, pp. 456-460; Eyck, Weimar Republic, II, pp. 291-

PART III

deputies.57 Such irresponsibility and extremism did, how­ ever, make the other parties more cooperative, and in March 1931, Bruning was able to get the budget and several pieces of financial legislation through the Reichstag. But clearly, at this point, there was little chance of returning Germany to effective parliamentary rule. And after being in session for less than two months, the Reichstag adjourned for the next half year, leaving the presidential government in con­ trol.58 The debates over the merits and legality of the presi­ dential system had become what the liberal-democratic press called Doktorfragen (purely academic). For the presidential government had become a keystone in the German political process; it was, in fact, more necessary now than when the system had been introduced. Unfortunately, Briining and his policies had attracted little popular support. And though the presidential system served as a bulwark against the radicals in the Reichstag, it had so far proved much less effective than proponents like Schmitt had hoped. Throughout 1931, the country continued to slide into a worsening state of political chaos and economic depres­ sion. By the end of the year, unemployment would reach 5,615,000, and the country would be plagued by weekly shootings, bombings, and other acts of political violence, in which paramilitary gangs of Nazis and communists fought it out in the streets. Nazi popularity increased in proportion to the intensification of the crisis and the rapid decline of confidence in the government's ability to act decisively or even to maintain public order.59 A year after the first emer­ gency decrees, Germany was in a more alarming state eco­ nomically and politically than when the presidential system had been proposed. Yet, Schmitt still saw a presidential government as the only realistic political alternative. 57

Fest, Hitler, pp. 296-297. Dorpalen, Hindenburg, p. 218; Halperin, Germany, p. 460. 39 Craig, Germany, pp. 553-557. 58

EIGHT

LEGALITY, NEUTRALITY, AND REALITY: THE CONSTITUTION, THE COURT, AND THE NAZIS

THROUGHOUT the convulsive year of 1932, Schmitt was preoccupied with the dual threat of civil war or an extremist seizure of power. Not since the upheavals of the early republic had there been such heightened political tension and radicalization within a single year. The German people were saturated with constant political activity which, rather than alleviating their troubles, only contributed to the de­ terioration of the body politic. It was a year of countless electoral campaigns at all levels of government and a time of public disorder, despite the institution of numerous emergency decrees intended to assure civil peace. Within a matter of months, the Germans faced a presidential elec­ tion and two of the most intense Reichstag elections in German history, with a third to follow shortly. For more than a year political extremism had reached the point of street fighting and physical harassment of opponents, as the danger of civil war loomed in the immediate back­ ground. By summer, the Nazis and communists, who nor­ mally faced each other in these street confrontations, would move into the center of the political arena when the July elections provided them with a majority of seats in the Reichstag. And governmental ineptitude, underscored by the failures of three successive chancellors by the end of 1932, did little to inspire confidence in the Weimar system. While many Germans looked to the radical parties as an alternative, others clamored for constitutional reform. The situation was further complicated when the Reich govern­ ment used its emergency powers to seize control of the

PART III

Prussian state, sparking a constitutional crisis that had to be settled by a dramatic trial before the supreme court. Hindenburg's victory over Hitler in the April presidential election was a ray of hope for the republic. But the gov­ ernment still faced the difficult question of how to handle the increasing strength and popularity of the National So­ cialists. Hitler had acquired almost 37 percent of the vote in the presidential election; shortly thereafter his party made substantial gains in state elections, where the NSDAP emerged as the largest party in several new governments; and the Storm Troopers (SA) would soon swell to four times the size of the German army.1 Even if the revolu­ tionary forces in the NSDAP could be kept in check and civil war avoided, there was still the ominous prospect that the continued growth of the Nazi party might eventually bring Hitler to power legally. That possibility was as great a danger to the constitution as an overt assault on the republic. Although in 1930 Hitler had declared before the supreme court, "Our political movement wishes to acquire the power of the state by legal means . . . ," he made it clear that he felt bound by the constitution only during the struggle for power, and that thereafter he could legally change the constitution. "I tell you," he said, "that if I come to power legally, . . . then quite a few heads will roll legally."2 The positions taken by Schmitt in 1932, like the political tactics of the man he advised, General Schleicher, were a reaction to the menacing rise of the Nazis and the inten­ sification of political turmoil. In addition to reestablishing stability under the presidential government, the general and the jurist sought to avert the legal or revolutionary subversion of the existing order by extremist parties. Schleicher's negotiations with the Nazis were always di­ rected at controlling and containing this party. Even at 1 2

Craig, Germany, p. 560; Dorpalen, Hindenburg, pp. 298-299. Halperin, Germany, pp. 447-448; Fest, Hitler, pp. 291-292.

WEIMAR'S FINAL CRISIS, 1929-1933

those points when he considered drawing Hitler or other Nazis into the cabinet, for want of an alternative, Schleicher intended to remain Wehrminister and to use the power of the army and the authority of the president as restraints against the potential total usurpation of power by the Na­ tional Socialists.3 Far more skeptical of the possibility of harnessing the NSDAP, and alarmed lest Hitler's legal strategy prove effective, Schmitt began writing his Legalitat und Legitimitat (Legality and Legitimacy) during the spring of 1932, to warn against the impending destruction of the Weimar constitution through legal means.4 Schmitt identified the greatest danger to the Weimar con­ stitution as a "value-neutral" and "purely functional" interpretation of that document.5 Every constitution, he wrote, embodied certain basic values and principles (e.g., these could include democracy, private property, and re­ ligious freedom), which constituted the essence of a par­ ticular constitutional system.6 And no constitution could remain neutral toward its own fundamental values and principles. But he argued that a "purely functional" inter­ pretation indicated such "value-neutrality" regarding laws passed according to legally specified procedures. As a case in point he selected Article 68 of the Weimar constitution: "Reich laws are enacted by the Reichstag." A literal inter­ pretation of the wording of that article exemplified the purely functional type of legal thought Schmitt had always ad­ monished, because such an interpretation involved only 3 Eugen Ott, "Aus der Vorgeschichte der Machtergreifung des Nationalsozialismus," lecture to the Rhein-Ruhr-Klub, Dusseldorf, May19,1965, pp. 2-3, 8; Hayes, "Schleicher," pp. 43-47; Theodor Eschenburg, "Die Rolle der Personlichkeit in der Krise der Weimarer Republik: Hindenburg, Bruning, Groner, Schleicher,"Vierteljahresheftefir Zeitgeschichte, Jg. 9, Heft 1 Qanuary 1961), p. 27; Thilo Vogelsang, "Zur Politik SchIeichers gegeniiber der NSDAP 1932," Vierteljahreshefte fir Zeitgeschichte, Jg. 6, Heft 1 (January 1958), pp. 86-118, and Schleicher, pp. 70-75. 4 Carl Schmitt, Legalitat und Legitimitat (Munich, 1932). 5 Ibid., pp. 28-32. 6 Ibid., pp. 48, 60-61, 78-81.

PART III

the legal procedures for passing laws and reflected an at­ titude of "neutrality" toward the actual "substance" of those laws. Thus laws could be enacted through these procedures even though the "substance" of such laws might contradict the basic values and principles of the constitution or en­ danger the entire legal order.7 Such neutrality would also grant all parties the "equal chance" to acquire power legally, form a 51 percent gov­ erning majority, enact laws, and control the institutions of the state. According to a strictly "value-neutral" interpre­ tation, it would be unconstitutional to limit a party's equal chance to the legal acquisition of power.8 But Schmitt held that the concept of the equal chance made sense only when the parties concerned accepted the legitimacy of the con­ stitution and were willing to adhere to its fundamental principles. In Weimar, anti-constitutional parties had seized upon the tactic of the equal chance as a vehicle with which to undermine the constitution itself, and a value-neutral interpretation of the constitution would allow this to occur legally. An anti-constitutional party which controlled a 51 percent majority in the Reichstag and the office of chan­ cellor could through various manipulations ban the re­ maining 49 percent as illegal. The party that controlled the legal reins of power could change election laws to the dis­ advantage of its opponents, or amend the constitution in such a way that it could legally close forever the door through which it came to power by denying its opposition the equal chance. Once in power, an anti-constitutional party could thus use its legal authority to abrogate the constitution. "The majority is then suddenly no longer a party, it is the state itself."9 The implementation of these plans by an incumbent party would be facilitated by what Schmitt termed the "political premiums" that accompany the legal possession of power. 7

Ibid., p. 30. Ibid., p. 32. ' Ibid., pp. 33, 35, 37, 39. 8

WEIMAR'S FINAL CRISIS, 1929-1933

Many crucial laws, decrees, and administrative functions require interpretation and enforcement. It would be the prerogative of the ruling party to decide on many of these consequential matters and, at the same time, that party would have at its disposal the entire bureaucratic apparatus to use to its own advantage.10 It was merely a question of which group was holding power at the moment when fi­ nally the whole legal system was thrown aside. That group would then be capable of constituting its power on new foundations.11 Schmitt's position, that the courts would be an ineffective check on the political manipulation of the legality principle and of the power of the state, would be vindicated in less than a year, as Hitler's pseudo-legal rev­ olution and brutal exercise of force turned the supreme court into a meaningless institution. An astute political observer, Schmitt foresaw a real pos­ sibility in which the communists or National Socialists would capitalize upon such legal authority, and their control over the government, to institute a new order. Regarding ". . . the legality or illegality of the National Socialist organiza­ tions . . . ," he wrote, "I would once more like to empha­ size that for National Socialists, [and] communists. . . such questions must in no way be understood in terms of in­ dividual, isolated constitutional articles . . . but from this fundamental interpretation of the system of legality. . . . [Otherwise] all parties must be given the lawful and un­ conditional equal chance to form the majorities which are necessary . . . to bring about its aspired goal—Soviet Re­ public, National Socialist Reich, . . . monarchy of the old style, aristocracy of some form—and another constitu­ tion."12 With this in mind, Schmitt argued that a consti­ tution could never provide the legal methods for its own destruction.13 10 11 12 13

Ibid., pp. 34-35. Ibid., p. 40. Ibid., pp. 50-51. Ibid., p. 61.

PART III

Schmitt contrasted the neutral characteristics of the first sections of the Weimar constitution, which implied the equal chance, with what he interpreted as the inviolable princi­ ples and values contained in the second part.14 So distinct were these two segments that Schmitt claimed the second part, which detailed the rights and obligations of Germans, was in effect another constitution. Since the neutrality of the first section was incompatible with the inviolable prin­ ciples of this other constitution, one of them must take precedence. Strict adherence to the legal principles of the first part would, at best, probably mean the continued pa­ ralysis of the Reichstag, with the potential for civil war or domestic collapse, and at worst, the eventual seizure of power by an anti-constitutional party. But affirming the inviolability of the principles inherent in the second part would at least assure the preservation of the essence of the constitution.15 Therefore, the laws and procedures found in the first constitution must be interpreted in relationship to the second part and to the current danger as well. In this context, Schmitt again called upon the president to act as the defender of the constitution. The president must take the necessary measures to solve the crisis and protect the basic nature of the existing order against legal manip­ ulation or revolution, even if this required the temporary suspension of parts of the first constitution.16 Although Schmitt realized that constitutional revisions were unavoidable, his book offered no reform proposals and he continued to speak out against initiating revisions before the restoration of stability.37 Neither was this rec­ ognition of the need for reform inconsistent with his long­ standing position on the limits of constitutional revision. Schmitt had always maintained that the essence of a con­ stitution was more significant than its individual articles, 14 15 16 17

Ibid., pp. 40-50. Ibid., pp. 52-61. Ibid., pp. 76-87. Ibid., p. 97.

WEIMAR'S FINAL CRISIS, 1929-1933

and that constitutional interpretations must reflect the dic­ tates of a concrete situation. The current crisis had con­ vinced him that the reestablishment of a workable political system in Germany could only be accomplished through future constitutional changes. But Schmitt still assumed that certain limitations were inherently imposed on such revisions. Any constitutional changes must accord with the principles and values embodied in the second constitution, and he never implied that the first constitution must be entirely abandoned. Presidential powers and the demo­ cratic principles on which presidential authority rested were an integral part of the first half of the constitution. Schmitt was actually proposing that the constitution be developed along the lines of its inner consistencies.18 The immediate concern of Schmitt remained security and stability rather than reform, and he never favored the usur­ pation of all power by the president. A viable Reichstag majority, he acknowledged, could at any time legally reas­ sert itself and assume the legislative functions it had so far abdicated, thereby making the presidential system unnec­ essary.19 But it was far more probable that the paralysis in that body would continue, and in either case the president was still obligated to resist the legal acquisition of power by anti-constitutional parties. In the circumstances of 1932, Schmitt saw the alternatives as a recognition of this ex­ panded role for the president, or the continuation of a system with "value-neutral functionalism" granting the equal chance to all parties. If the latter prevailed, it would mark the end of the Weimar constitution: "Dann racht sich die Wahrheit" (reality will avenge itself).20 While Schmitt was writing Legalitat und Legitimitat, Schleicher was busy devising a plan to contain the NSDAP by forming a non-Nazi rightist government that would, nonetheless, be tolerated by Hitler. Schleicher thought that 18 19 20

Ibid., pp. 48-49; Schwab, Challenge, p. 87. Ibid., pp. 88-94. Ibid., p. 98.

PART III

such a government would be strong enough to resist a Nazi takeover even if NSDAP leaders later joined the cabinet. As a bargaining point with Hitler, Schleicher offered him a repeal of the ban imposed on the SA and SS since April 13, and new elections. This plan also involved the dismissal of Briining, because Schleicher was convinced that the chancellor was incapable of either counteracting the Na­ tional Socialist threat or successfully negotiating with Hit­ ler.21 With Briining out of the way, the general was sure that his discussions with the Nazis would yield positive results. Schleicher's undermining of Briining's position, and his cocky overestimation of his own ability to tame the Nazis, was a historical blunder of catastrophic proportions. But at the time, he felt that his negotiations with the Nazis were necessary to avoid civil war and he was confident about succeeding.22 He convinced Hindenburg that this was a necessary course of action and that Franz von Papen was the man best suited to form this new rightist presi­ dential government. Schleicher believed that he could con­ trol Papen and thereby influence government policy from behind the scenes. He also expected the new elections to return a rightist parliament that would draw some of the appeal away from the Nazis. On May 30, Bruning resigned under pressure and the following day Papen was ap­ pointed chancellor; four days later the Reichstag was dis­ solved, new elections scheduled for July 31, and on June 14 the ban on the SA and SS was lifted. Although Schmitt had no influence on Schleicher's po­ litical decisions, he was probably well informed of these, as he was in close contact with Erich Marcks. Schmitt had doubts about bringing Nazis into the government, but he did think it was necessary for the government to have a free hand in trying various approaches to handling the Hitler movement, including tactical maneuvering through 21 Hayes, "Schleicher," pp. 46-49; Craig, Germany, pp. 560-561; Bracher, Die Aufiosung, pp. 458, 579. 22 Dorpalen, Hindenburg, pp. 311, 324-325.

WEIMAR'S FINAL CRISIS, 1929-1933

negotiations and elections. Schmitt fully supported the general's attempts at diminishing the appeal of the Na­ tional Socialists, and he directed his efforts at warning against granting anti-constitutional parties the equal chance. With the election campaign at the peak of intensity in July, Schmitt published a segment of his yet unfinished Legalitat utid Legitimitat in the conservative Deutsches Volkstum.23 Under current circumstances, he cautioned, the unrestricted neu­ tral application of the concept of the equal chance would be an absurdity and could lead to the total transformation of the existing system. Two weeks later, the message was more explicitly conveyed in another excerpt from his work published in the Tagliche Rundschau, which concluded with the following editorial note: Our practical application: Whoever provides the National Socialists with the majority on July 31, acts foolishly. . . . He gives this still immature ideological and political movement the possibility to change the constitution, to establish a state church, to dissolve the labor unions, etc. He surrenders Germany completely to this group. . . . It would be extremely dangerous . . . because 51% gives the NSDAP a "political premium of incalculable signifi­ cance."24 Schmitt's warning went unheeded. The elections produced a spectacular Nazi victory that allotted them 37.8 percent of the seats in the Reichstag and increased the communist strength to 14.6 percent. Schleicher's plans for a non-Nazi rightist parliament failed, since together these two radical parties now controlled 52.4 percent of the Reichstag; in Schmittian terms, they had achieved the dangerous abso­ lute majority. Fortunately, the KPD and NSDAP were so ideologically incompatible that they could not cooperate with each other so as to take advantage of their majority, 23 Schmitt,

"Legalitat und gleicher Chance." Carl Schmitt, "Der Missbrauch der Legalitat," TSgliche Rundschau (July 19, 1932). 24

PART III

and they had to be content with merely obstructing the formation of a governing coalition. However, since the Na­ zis had more than doubled their vote compared with 1930 returns, their potential seizure of power, legally or other­ wise, was more likely than ever. Schleicher's miscalculation had added to the Nazi momentum and brought Weimar one step closer to destruction.25 Not only had Schleicher and Papen failed to acquire in­ creased support for the traditional right, but by their pre­ election action against the state of Prussia they had com­ pletely alienated the Center Party and moderate left, two groups that had previously tolerated the presidential sys­ tem. For on July 20, Papen, armed with a presidential emer­ gency decree, had placed all of Prussia under martial law and had removed the state government.26 The legal pretext was that Prussia was unable to maintain order and security, particularly where the communists were concerned, and therefore the president was empowered to intervene under Article 48. But the act was politically motivated as well. The move against Prussia at this point was intended to bolster the Papen government's position on the right dur­ ing the elections by showing that it was decisive and that it could act effectively against the left. Papen and Interior Minister Gayl also saw this as an opportunity to destroy 25

Bracher, Die Aufldsung, pp. 533-536; Dorpalen, Hindenburg, p. 348. For a detailed description of the events leading to the Prussian crisis and of the subsequent trial see Henning Grund, "Preussenschlag" und Staatsgericktshof im Jahre 1932 (Baden-Baden, 1976); Earl R. Beck, The Death of the Prussian Republic: A Study of Reich-Prussian Relations, 1932-1934 (Tal­ lahassee, 1959); and the dissertations by Jiirgen Bay, Der Preussenkonflikt 1932-33: Ein Kapitel aus der Verfassungsgeschichte der Weimarer Republik (Erlangen-Nuremberg, 1967), and Thomas Trumpp, Franz von Papen, Der preussische-deutsche Dualismus und die NSDAP in Preussen: Ein Beitrag zur Vorgeschichte des 20. Juli 1932 (Marburg, 1965). See also Karl Dietrich Bracher, "Der 20. Jtili 1932," Zeitschrift fiir Politik, Jg. 3, Heft 3 (December 1956), pp. 243-251; and Arnold Brecht, "Die Auflosung der Weimarer Republik und die politische Wissenschaft," Zeitschrift fiir Politik, Jg. 2, Heft 4 (De­ cember 1955), pp. 291-308. 26

WEIMAR'S FINAL CRISIS, 1929-1933

the power of the Social Democrats in Prussia, whereas Schleicher viewed it from the perspective of his scheme to outmaneuver the Nazis. By assuming authority in Prussia, the Reich government could prevent the state from contin­ uing to impose restrictions on the National Socialists, a gesture Schleicher felt might make them more conciliatory. With Prussia ruled by emergency decrees, the Nazis would also be unable to acquire the institutions of power in that state; indeed, Reich control over the Prussian police would strengthen its hand against the Nazis. These political ob­ jectives could be fulfilled by replacing the Prussian gov­ ernment with a Reich commissar.27 That move, however, less than two weeks before this crucial election, drew angry protests of unconstitutionality from various parties, be­ cause it appeared that the Prussian government had be­ come the victim of a Staatsstreich. The stage was set for a constitutional confrontation before the supreme court. The stakes in Prussia were high, as there was a large measure of truth in the often repeated phrase, "Who con­ trols Prussia controls the Reich." Constituting two-thirds of Germany's territory, three-fifths of its population, and with its police force of 85,000 men closely approximating the size of the German army, the Prussian state was a tremendous counterweight to the authority of the Reich. Reforming the relationship between Prussia and the Reich had been an issue of debate since the beginning of Wei­ mar.28 Moreover, the long standing Weimar coalition in the Prussian Landtag, which had made Prussia a bulwark of republicanism, was determined to keep the Nazis in check by legal restrictions on their activities. But the state elec­ tions of April 24 had shattered the Weimar coalition; the Nazis doubled their seats in the Landtag and the members of the coalition were reduced to a minority. The Prussian 27 Hayes, "Schleicher," p. 48; Craig, Germany, p. 562; Dorpalen, Hindenburg, pp. 342-343. 28 Beck, Prussian Republic, pp. 55, 92; Bracher, Die Auflosung, pp. 491501.

PART III

parliament thus found itself in the same paralytic state in which the Reichstag had been suspended since 1930.29 An­ ticipating this Nazi upsurge, the Weimar coalition had used its preelection majority to change the procedure for electing a minister president to head the Prussian government. Un­ der the new procedure an absolute majority in the Landtag was required for the election of a minister president. In the absence of such a new majority, the incumbent SPD gov­ ernment remained in power after the election as a "care­ taker" government, even though its authority no longer rested on a parliamentary majority.30 The legality of this maneuver was debatable, but the SPD argued that this course of action was necessary in order to prevent the Prussian government, as well as its bureau­ cracy and police, from falling into the hands of the Nazis. The National Socialists, of course, claimed that this move, like the restrictions placed on their activities, violated their constitutional rights. And despite Hitler's policy of legality, the situation in Prussia worsened when the Reich govern­ ment removed the SPD ban on Nazi formations; political violence in the brief period immediately following the ban's repeal left 99 dead and 1,125 seriously wounded.31 Though the Prussian SPD government seemed as capable as the Reich in maintaining order and security, those around Schleicher, Schmitt included, felt that the measures of the SPD government against the Nazis might actually drive the latter into revolt. As Schmitt soon noted before the supreme court, it appeared that rather than the state attempting to assure order and security, one party was suppressing an­ other.32 Thus, the claim of the Reich government, that it must intervene to preserve order and security, did not seem 29

Milatz, "Das Ende der Parteien," pp 766-770 Grand, "Preussenschlag", pp 37-42 31 Ibid, pp 26-30, Craig, Germany, ρ 561 32 Carl Schnutt, "Die Verfassungsmassigkeit der BesteIIung ernes Reichskommissars fur das Land Preussen," Deutsche Juristen-Zeitung, Jg 37, Heft 15 (August 1, 1932), pp 953-958 30

WEIMAR'S FINAL CRISIS, 1929-1933

entirely unfounded if viewed as an attempt to avoid civil war. And there was definitely a present danger of conflict between organized political groups. Throughout Germany the NSDAP had at its disposal 300,000 SA troops, rein­ forced by another 50,000 in the SS; the illegal communist Red Front was still 150,000 strong, the nationalist Stahlhelm had 1,000,000 members, and the Reichsbanner had close to half a million men.33 In the face of these forces, the Reich government could not risk the outbreak of widespread civil conflict within Germany's largest state. Briining, a vocal critic of Papen's Prussian policy, had himself earlier con­ sidered instituting a Reich commissar so as to acquire con­ trol over the Prussian police and to abort Nazi moves in this direction.34 The Prussian government's appeal for an injunction pre­ venting the Reich commissar from assuming power in Prus­ sia was rejected by the supreme court on July 25, and a trial scheduled for October.35 When the Papen cabinet met that very day to discuss preparation of the Reich's case, the chancellor stated that "it is already decided that coun­ selor Meidinger as well as Professors Carl Schmitt in Berlin, Jacobi in Leipzig and Bilfinger in Halle would be taken into consultation as representatives or Gutachtern for the Reich government."36 Papen also reported that 'Trofessor Schmitt will publish an article on July 29 in Deutsche Juristen-Zeitung, regarding the constitutional dispute between the Reich and the Prussian state government, and in this article explain the legality of the Reich government's position."37 Interior Minister Gayl added that "he wanted to establish the framework of the statement with Professor Schmitt."38 This 33 Grund, 34 35

"Preussenschlag," p. 31. Ibid., pp. 53-54. Ibid., pp. 79-82.

36

Niederschrift iiber die Ministerbesprechung am 25 Juli 1932, Reiehskanzlei, R-43-I, 1457, pp. 186-187. 37Ibid. 38

Ibid.

PART III

was the first mention of Schmitt's involvement in the affair. Although subsequently his ideas and publications con­ cerning the equal chance and presidential emergency pow­ ers took on additional importance in the legal arguments before the court, Schmitt was not a motivating force behind the actions of the Papen government, nor was there any evidence indicating that his constitutional interpretations were used to overcome Hindenburg's reservations about Papen's Prussian venture. Neither was Schmitt a puppet of Papen and Gayl.39 He merely served as a legal adviser for the government, a position he had unofficially assumed since the Bruning chancellorship. Considering this previous affiliation, his particular constitutional interpretations, and his public support for the presidential system, it was not surprising that Schmitt would be engaged for the case. Actually it was Schleicher who insisted that Schmitt represent the Reich.40 After his selection, Schmitt met with Papen a few times, but only regarding the details of the trial. The aforemen­ tioned article, which appeared on August 1 (two months before the opening of the trial), had been requested by the editorial staff of the Deutsche Juristen-Zeitung, and nothing in the article suggested manipulative influences on Schmitt, or that his arguments were fabricated to support the gov­ ernment's position.41 In this article, in his statements before 39 In "Carl Schmitt in der deutschen Innenpolitik," pp. 107, 112-113, Heinrich Muth argues that the aforementioned references to Schmitt in­ dicate that he was a man of Papen, Gayl, and the DNVP. But beyond these quotes there is no evidence of a close Papen-Gayl-Schmitt connec­ tion. Schmitt is not mentioned in either Franz von Papen, Memoirs (Lon­ don, 1952), or the Nachlass of Wilhelm Freiherr von Gayl, BA. For a more detailed analysis of Muth's misinterpretation of Schmitf s relationship to Papen, Gayl, and the DNVP see Joseph W. Bendersky, "Carl Schmitt in the Summer of 1932: A Reexamination," Revue europeenne des sciences sociales, XVI, No. 44 (1978), pp. 39-53. 40 Schwab, Challenge, p. 15. 41 Schmitt, "Die Verfassungsmassigkeit." A shortened version of this article had already appeared in the Deutsche Allgemeine Zeitung, No. 349, on July 29, under the title, "1st der Reichskommissar Verfassungsmassig?"

WEIMAR'S FINAL CRISIS, 1929-1933

the court, as well asin his speeches and publications during the rest of 1932, Schmitt simply reiterated the legal inter­ pretations he had constructed for years concerning the power of the president in an Ausnahmezustand and his role as a neutral force. The Reich government, Schmitt argued, was justified under Article 48 in establishing a commissar in Prussia, because the state had failed to fulfill its constitutional ob­ ligations and was incapable of assuring order and security. Both the removal of the Prussian government and the in­ stitution of martial law were constitutional and warranted by the volatile Prussian situation. It was clear, nonetheless, that Schmitt viewed these questions from a political as well as a legal standpoint, and that he believed that these con­ stitutional issues must be considered in relationship to the political dangers to the state and constitution. "There is no doubt," he wrote, "that the essential point of controversy in the case concerns the political evaluation of two parties, the National Socialists and the Communist Party."42 That in the past Article 48 had been invoked against both parties was a known fact, but it had always been by a president who, standing above parties, acted as a neutral force. The current danger was that this type of executive action might become the instrument of antagonistic political parties, each of which would use any legal means available to outlaw its opponents; the principle of the equal chance would then become a tool of the incumbent party.43 Although Schmitt was alluding to the actions of the caretaker SPD govern­ ment and the repressive measures of Prussia against the Nazis, he was by no means favoring the National Socialists. He stated explicitly that "on the other hand, of course, it would be totally impossible to give the equal chance to a party which is an enemy of the state."44 But to prevent civil war, a theme he emphasized again and again, a policy of excluding any political party from the equal chance must 42 Schmitt, a Ibid.

ilIbid.

"Die Verfassungsmassigkeit," p. 958.

PART III

be initiated by the president, a figure above the political parties involved. Essentially, Schmitt interpreted the con­ flicts between the Reich and Prussia as a struggle between the Reich government and various contending political par­ ties. Schmitt's argument that a state government might become the power instrument of the incumbent party, which would then deny the equal chance to its political compet­ itors, was not something he invented at this time to con­ done Papen's action against the Prussian SPD. It had been a major point in Schmitt's writings for years. Already in 1931, he noted that "in many law suits between the Reich and a state which are brought before the supreme court, it is obvious that not the Reich and a state, but two com­ peting party coalitions are the real parties in the proceed­ ings."45 By the time the trial before the supreme court in Leipzig finally opened on October 10, the number of plaintiffs had expanded to include the states of Baden and Bavaria, as well as the Center and SPD factions of the Prussian Land­ tag. The parties involved, like the political and constitu­ tional ramifications of the case, assured widespread public attention. That the trial had become one of the most im­ portant of the republic, one which could significantly in­ fluence the future of Weimar, was evident from the distin­ guished jurists, an elite among German constitutionalists, chosen to represent each side. Representing the Reich were Schmitt, Erwin Jacobi, and Karl Bilfinger, and among their opposition stood Friedrich Giese, Arnold Brecht, Gerhard Ajischutz, Hans Nawiasky, Hans Peters, and Hermann Heller.46 The highly political nature of the trial, the pres­ ence of such eminent legal scholars, many with strong ide­ ological convictions, and the national publicity involved, 45 Carl Schmitt, "Reichs- und Verwaltungsreform," Deutsche JuristenZeitung, Jg. 36, Heft 1 (January 1, 1931), p. 7. 46 Preussen contra Reich vor dem Staatsgerichtshof: Stenogrammbericht der Verhandlungen vor dem Staatsgerichtshof in Leipzig vom 10. bis 14. und vom 17. Oktober 1932 (Berlin, 1932), p. 1.

WEIMAR'S FINAL CRISIS, 1929-1933

all greatly affected the dynamics of the trial. It was only with some difficulty that Chief Justice Erwin Bumke kept the trial from degenerating into either abstruse academic debates over conflicting constitutional theories, or a series of political discourses that went beyond the scope of the case.47 Schmitt faced a formidable opposition, which had a wellprepared case and a wealth of theoretical knowledge and practical experience. Anschiitz and Giese, two of the most acute legal minds of the era, were an easy match for Schmitt in constitutional debates; and Brecht, a specialist in fed­ eralism, had acquired a good deal of expertise in the area of Reich-state relations as a member of the committee to study Reich reform. The cleverness of the opposition was evident from the opening statements before the court, where Brecht introduced Schmitt's theory of the equal chance to justify the actions of the Prussian government against the National Socialists. Reading several passages from Legalitat und Legitimitat, Brecht asserted that Schmitt's own writings showed that Prussia had acted in accordance with the con­ stitution by preventing the Nazis from acquiring the reins of power.48 Therefore, the Reich charge that Prussia had failed to fulfill its constitutional obligations was un­ founded. Schmitt retorted that Brecht had ignored an essential part of his theory, namely, "Who decides" which groups should be denied the equal chance? One political party, he noted, cannot determine the legality or illegality of another; only a neutral force, the Reich president, could make such a 47 Ibid., p. 60; Handakten Dr. D. Arian, Ministerialrat Verfassungsstreitsache der Lander Preussen, Baden und Bayern gegen das Deutsche Reich betr. Verordnung des Reichsprasidenten vom 20. 7. 1932 vor dem Staatsgerichtshof, Kleine Erwerbung, No. 337-1, Band 1, pp. 85, 88, BA. 48 Preussen contra Reich, p. 12- See also Arnold Brecht, Mit der Kraft des Geists: Lebenserinnerungen. Zweite Halfte 1927-1967 (Stuttgart, 1967), pp. 180-183.

PART III

decision.49 The independent actions of an SPD government against the Nazis, he warned, could lead to civil war. Re­ minding the court of the upheavals of the early republic and the current critical situation in Germany, Schmitt ar­ gued that the institution of a Reich commissar for Prussia was necessary in order to avoid a new rash of civil con­ flicts.50 Schmitfs own convictions on this point were rein­ forced by knowledge of certain political realities that he could not explain in public without further undermining the position of the Reich government. As an adviser to Schleicher, he was well aware that the army could not cope with a simultaneous revolt by the communists and Nazis, a common nightmare within the Schleicher coterie.51 Like Schleicher, Schmitt thought that handling the Nazis should be left to the Reich government. And after their impressive electoral victories showed that the Nazis appealed to more than a third of the nation, he felt that the government must proceed cautiously. Thus, the position he defended in court was that a state, particularly one which might incite civil war, did not have the right to pursue a course which de­ viated from the policies of the Reich.52 In long discourses before the court, Schmitt contended that the president had acted out of necessity, with the best interest of Germany in mind, and in accordance with his constitutional duties. Article 48 authorized the president to force a state to fulfill its obligations under the consti­ tution and Reich law (paragraph one), and to take neces­ sary measures to reestablish order and security (paragraph two). Both paragraphs were interrelated in this case and should be considered as such by the court. By failing to maintain order and security, and by refusing to follow the 49 50

Preussen contra Reich, p. 39. Ibid., pp. 39, 180-181, 289-291.

51 This fear was soon confirmed by the war game exercises of November 25-26, 1932. See Hayes, "Schleicher," pp. 56-57; and Ott, "Machtergreifung," pp. 8-9, 16. 52 Preussen contra Reich, p. 40.

WEIMAR'S FINAL CRISIS, 1929-1933

policies of the Reich, Prussia had not fulfilled its obligations to the constitution or the Reich. Consequently, the presi­ dent had the authority to invoke paragraph one to compel Prussia to fulfill its constitutional obligations, and concur­ rently to employ paragraph two as a means to reestablish security.53 Schmitt's adversaries argued, however, that each paragraph represented a different type of authority and they must be handled separately. Anschiitz, for example, tried to show that each paragraph had derived from distinct parts of the former constitution and had remained sepa­ rated in the Weimar constitution. It was never intended that the authority to suspend certain constitutional rights (authorized under paragraph two) should apply to the first section.54 Equally significant, Prussia had always fulfilled its duties under the constitution and Reich law; its having deviated from certain political policies of the central gov­ ernment did not signify a constitutional violation.55 In re­ sponse, Schmitt reiterated that when divergent state pol­ icies threaten to disrupt order and security, that state is certainly not satisfactorily discharging its constitutional duty.56 But it was also the Prussian position that the pres­ ident had erred in invoking paragraph two because order and security were not seriously disturbed in Prussia, and the state government had the situation firmly under con­ trol. Furthermore, nowhere in the constitution, even in Article 48, was it stated or implied that a president can authorize the removal from office of a legally constituted state government.57 The jurists for Prussia went on to challenge the extensive authority Schmitfs interpretations would grant a presi­ dent. Anschutz and Giese held that a president was not the ultimate interpreter of the authority he had under Ar53 54 55 56 57

Ibid., pp. 130-135, 175-181. Ibid., pp. 124-127; Beck, Prussian Republic, pp. 138-139. Preussett contra Reich, pp. 118-121. Ibid., pp. 176-181. Ibid., pp. 77, 2&7, 322-325.

PART III

tide 48; his actions were subject to judicial review.58 Sim­ ilarly, Brecht argued that the constitutionality of the actions of a state, like the legality or illegality of a political party, was to be determined not by the president, but by the courts.59 Schmitt pointed out, however, that a constitution is a political document, not just a collection of legal norms, and as such it must be viewed in the context of political realities. He conceded that from a legal standpoint the court was the "defender of the constitution" and the final arbiter in legal disputes regarding the constitution. "But it is and remains a court," and thus was unprepared and unable to render those political decisions and to take the political action which might be required to protect the constitu­ tion.60 For this reason, the president had been designated under Article 48, and by his oath, as the lawful political defender of the constitution. In this position, a president must have, and in fact did have, the constitutional au­ thority to react according to the dictates of a concrete po­ litical situation; implicit in this authority was the right, in extreme cases, to remove a negligent state government from office and to institute a Reich commissar if this action was deemed necessary for the defense of the state and consti­ tution. In his concluding summary, Schmitt said quite bluntly that "the formalities . . . in this process before the supreme court are no mere formalities, but very real political mat­ ters."61 Ever since Schmitt had first proposed such a broad con­ stitutional interpretation in the twenties, many of the same jurists he now confronted in court had considered his legal position untenable. It was certainly no surprise, therefore, when they protested vigorously that Schmitt was elevating the president above the court in constitutional matters and subordinating law to politics. They charged that Schmitt's 58

Ibid., p. 127. Ibid., p. 41. 60 Ibid., pp. 468-469. « Ibid., pp. 466-467. 59

WEIMAR'S FINAL CRISIS, 1929-1933

attempt to make constitutional interpretations dependent upon an existing situation could lead constitutional law to the point of absurdity.62 They frequently employed the term "situationsgemass" (according to existing conditions) to de­ scribe Schmitt's position, and at one point his presentation was interrupted by the cry "situation-jurisprudence."63 Within a few months, these criticisms would reappear, and Schmitt would find himself under public attack for alleg­ edly relativizing constitutional law. After days of hearing exhaustive arguments and coun­ terarguments, the court rendered a "Solomonic verdict" that satisfied neither party and left the Prussian situation in a very dubious state. The court reaffirmed its own right of judicial review and its claim of being the legal defender of the constitution.64 It also rejected the allegations that Prussia had failed to fulfill its constitutional obligations; consequently, paragraph one of Article 48 was not appli­ cable and the Reich had no authority to remove the Prus­ sian cabinet, and its return to office was now guaranteed by the court. On the other hand, the court agreed that the institution of a Reich commissar for Prussia under para­ graph two was justified, because there did exist a serious danger to public order and security.65 These decisions cre­ ated an awkward situation in Prussia, where a Reich com­ missar now existed alongside the state government. And the results of these rulings soon showed that, in effect, many of the points Schmitt had made during the trial re­ lating to presidential power, as opposed to the legal de­ cisions of the court, had been quite perceptive. In reality, the political power and constitutional authority of the pres­ ident under Article 48 proved more decisive than the legal judgments the court had handed down regarding the conaIbid., 63

p. 57.

Ibid., pp. 58, 124, 353, 469. " Ibid., pp. 494, 510-512. 65 Ibid., pp. 482-484, 495-496, 514-515; Grund, "Preussenschlag," pp. 8991, 127-142.

PART III

stitutional rights of the Prussian government. For while the Prussian cabinet returned to office, its authority became meaningless, as the real power in Prussia shifted to Papen's commissar, who governed the state through emergency decrees.66 Participation in the trial was a professional and personal triumph for Schmitt, and undoubtedly gave him immense satisfaction. He was now involved in a trial of immeasur­ able political consequence, with the attention of the whole nation focused on the proceedings. Legal ideas he had expounded for years in the lecture hall and in publications were now debated extensively before Germany's highest court; often his constitutional writings, particularly Legalitat und Legitimitat and his recent article in Deutsche JuristenZeitung, became central points of discussion.67 His audience suddenly extended beyond intellectual circles, as his major role in the trial cast him into the limelight. Standing in the courtroom at Leipzig, Schmitt was at the peak of his Wei­ mar career. Reassured of the importance of his work, he rose to the occasion. Rather than engaging in sophistry, as often alleged, Schmitt conducted himself in a highly profes­ sional manner throughout the trial.68 His arguments were forceful and clearly formulated, a reflection of his usual method of driving directly to the heart of a question. Though he always remained poised and respectful, his sharp re­ sponses were indicative of his astute legal mind and his natural penchant for challenging intellectual discourse. But the trial was not without its personal drawbacks for Schmitt. The same forum that afforded him a national au­ dience gave his opponents an opportunity to repudiate, even ridicule, Schmitt and his work. Throughout the trial 66 Dorpalen, Hindenburg, pp. 368-370; Beck, Prussian Republic, pp. 143145; Bracher, Die Auflosung, pp. 559-563. 67 Preussen contra Reich, pp. 57-59,118-119, 322-325; Handakten, p. 474. 68 In his description of Schmitt, Earl Beck uses phrases such as, "in­ genuous, legal sophistry," "apostle of dictatorship," and "fascinating genius of the plausible and the opportune." See Prussian Republic, pp. 106-107. For similar views see also Craig, Germany, pp. 641-642.

WEIMAR'S FINAL CRISIS, 1929-1933

Hans Peters and Hermann Heller assailed Schmitfs entire legal philosophy and his interpretation of the Weimar con­ stitution in particular.69 Although these arguments were often trenchant, they appeared directed more at Schmitt than at the case at hand, forcing the chief justice to inter­ vene at various points and request that counselors stick to the immediate issue under consideration. This did not de­ ter certain members of the opposition from interrupting Schmitt's addresses with shouts of "dreadful" and "shock­ ing."70 Always composed and polite, Schmitt refrained from responding in kind, even when he felt that the opposition was misleading the court with a "caricature of the so-called Schmitt-Jacobi theory."71 Such assaults on Schmitt, how­ ever, were mainly limited to Peters and Heller. And their impatience with Schmitt did not emanate merely from the­ oretical disagreements or personality clashes, but from their feeling that he was providing a legalistic cover for an attack on the republic itself. They sincerely believed that they were involved in a showdown over the future of the Wei­ mar constitution and that Schmitt was an apologist for the reactionary forces in Germany. Many of Schmitfs courtroom adversaries had long been critical, or at best suspicious, of his political leaning. More recently their attitude had been reinforced by the special attention Schmitt received in the conservative press. When a new edition of Schmitt's Begriff des Politischen appeared early in 1932, the book was praised in Der Ring for warning Germany about the necessity of distinguishing friend from enemy in the current power struggle.72 For the rest of the year, Schmitt's book was widely discussed and cited as a 69 Preussen contra Reich, pp. 57-60. *> Ibid., pp. 290, 352, 355, 466, 468-469. 71 Ibid., p. 351. 72 Karl Lohmann, "Die Waffe der Legalitat," Der Ring, Jg. 5, Heft 37 (September 9, 1932), pp. 608-611; Michael Horst, "Naturrecht, Legalitat und das Zentrum," Der Ring, Jg. 5, Heft 33 (August 12, 1932), pp. 548550; Heinrich Rogge, "Feindschaft als Lebenselement von Staat und Politik? Eine staatstheoretische Warnung," Der Ring, Jg. 5, Heft 2 (January 8, 1932), pp. 16-18.

PART III

source in each edition of Deutsches Volkstum.73 The latter had a history of blatant anti-Semitism, and in one article Clemens Lang claimed that the friend-enemy concept was antithetical to the liberalism dear to the hearts of "certain political scientists of Jewish descent."74 Though Schmitt was not an anti-Semite, his reputation was harmed by such remarks and misuse of his thesis. Schmitt's image among republicans was damaged further when many of his works were cited in Albrecht Erich Giinther's book, What We Ex­ pect of National Socialism, a collection of twenty essays by conservatives describing their attitudes toward the Nazi movement.75 Some contributors were critical of National Socialism, others had strong reservations, but many took a conciliatory position and even emphasized the impor­ tance of the movement for Germany. Ironically, Schmitt had used Deutsches Volkstum, which Giinther co-edited, to warn against a Nazi legal acquisition of power. Schmitt had obviously lost control over his own ideas. On the surface at least, it was quite easy to identify Schmitt with the radical right. Thus, when his association with the presidential system and his role in the trial Prussia vs. Reich made him a political personality of some importance in 1932, Schmitt became a logical target for criticism in the liberal and leftist press. Assaults on Schmitt, previously restricted for the most part to scholarly publications, now appeared for the first time in the leftist Neue Blatter fiir den Sozialismus, where Reinhold Aris and Thomas Eck took issue with the notion of the president as the defender of the constitution, and attacked the friend-enemy thesis as 73 Friedrich Griiter, "Der Rechtsstaat in der Krise/' Deutsches Volkstum, 1 Aprilheft (1932), pp. 260-265. See also Hans Zehrer, "Revolution oder Restauration?" Die Tat, Jg. 24, Heft 5 (August 1932), pp. 353-393. 74 Qemens Lang, "Die Ideologie des Widerstandes. Bemerkungen zu Carl Schmitts Begriff des Politischen," Deutsches Volkstum, 1 Dezemberheft (1932), p. 961. 75 Albreeht Erich Giinther, Was wir vom Nationalsozialismus erwarten: Zwanzig Antworten (Heilbronn, 1932), in particular pp. 82-83, 97-98.

WEIMAR'S FINAL CRISIS, 1929-1933

a concept devoid of moral content; it would, Aris wrote, justify the destruction of the weak by the strong.76 Yet, the clearest sign of the importance recently assumed by Schmitt and his theories came from the liberal press, which had earlier supported the presidential system but had turned against Papen over the Prussian affair.77 On the front page of its September 11 Sunday edition the Vossische-Zeitung noted that Schmitt's ". . . teachings had become especially significant because they laid the ideological foundations for Papen's policies."78 And in order ". . . to combat this dan­ gerous teaching," the paper published an article, two full pages in length, assailing Schmitt's position on presidential power; the subtitle read "A Constitutional Guide for Stu­ dents of Dictatorship."79 In a detailed exegesis of the major segments of Legalitat und Legitimitat, Georg Quabbe charged that the result of Schmitt's constitutional interpretations would be the supplanting of parliamentary government with a system in which law would ultimately be determined by the president. But the image of Schmitt as a political apologist for the Papen government and as a proponent of the "New State" was not universal. Leo Strauss's long essay on Der Begriff des Politischen, published in late summer 1932, showed that Schmitt's ideas and analyses were still taken quite seriously in the scholarly community. Strauss, later a professor of political science at the University of Chicago, noted that 76 Reirthold Aris, "Politik und Ethik: Kritische Anmerkungen zu Carl Schmitts politischer Theorie," Neue BlStter fir den Sozialismus, Jg. 3, Heft 10 (October 1932), pp. 542-548, and "Krisis der Verfassung: Die gegenwartige Situation," Neue BlStterfir den Sozialismus, Jg. 3, Heft 1 (January 1932), pp. 19-29; Thomas Eck, "Das Volk als Hiiter der Verfassung," Neue Blatter fir den Sozialismus, Jg. 3, Heft 7 (July 1932), pp. 347-355. 77 Eksteins, Limits of Reason, pp. 253-254. 78 "Auseinandersetzung mit Carl Schmitt," Vossische-Zeitung, No. 437 (September 11, 1932), p. 1. 79 Georg Quabbe, "Die Interpreten das Ausnahmezustandes—Ein staatsrechtlicher Leitfaden fiir Diktaturbeflissene," Vossische-Zeitung, No. 437 (September 11, 1932), Vierte Beilage.

PART III

Schmitf s critique of liberalism's failures was incisive and crucial to understanding the contemporary crisis of liber­ alism. Equally significant was Strauss's recognition of the fact that Schmitt, despite his criticisms, saw no new system in Europe to replace liberalism. "By this awareness," Strauss wrote, "[Schmitt] stands alone among the opponents of liberalism, who usually carry in their pocket a fully workedout illiberal theory. . . Z'80 Strauss viewed Schmitt not as a prophet of a postliberal system, but as a scholar whose ideas could neither be ignored nor dismissed as mere po­ lemics. Schmitfs intention, according to Strauss, ". . . is to do no more than provide a theoretical framework for an immense problem; the theses of his study are to be thought of as a starting point for objective discussion."81 In the charged atmosphere of 1932, however, hopes for "objective discussion" would remain unfulfilled. There were few opportunities, in many cases little desire, for consid­ eration of intricate theoretical arguments. And in fairness to Schmitt's critics, his insistence that that theory relate to the concrete political situation did not make it easy to eval­ uate his arguments in a detached scholarly manner. Indeed it was a time for taking sides. To use Schmitfs own ter­ minology, the intensity of association and disassociation was reaching the point of friend-enemy distinctions in do­ mestic politics. Decisive in the minds of many republicans was the fact that Schmitt appeared to have sided with the anti-democratic forces. The conclusion drawn by the leftist WeltMhne, that Schmitt had become the apologetic Krotijurist (crown jurist) of the government, was indicative of the prevailing attitude toward him in Catholic, liberal, and 80 Leo Strauss, "Anmerkungen zu Carl Schmitts Der Begriff des Politischen," Archiv fur Sozialwissenschaft und Sozialpolitik, Band 67 (AugustSeptember 1932), pp. 732-734. 81 Ibid. It is also important to note that around this time Walter Jellinek, a highly regarded law professor at the University of Heidelberg, wrote a very favorable review of Schmitfs Legalitat und Legitimitat in Deutsche Juristen-Zeitung, Jg. 38, Heft 1 Qanuary 1, 1933), p. 116.

WEIMAR'S FINAL CRISIS, 1929-1933

socialist circles.82 Schmitt was compared with the Kronjuristen who had contrived legal justifications for Frederick the Great's seizure of Silesia and Bismarck's claims on Schleswig-Holstein. And this was just the beginning of Schmitt's public vilification. 82 Helmut von Gerlach, "Schleicher und sein Stahlhelm," Die Weltbiihne, Jg. 28, No. 36 (1932), p. 343. Even Schmitt's former student Otto Kirchheimer criticized him for fostering reactionary policies. See "Bemerkungen zu Carl Schmitts Legalitat und Legitimist," Archivfiir Sozialwissenschaft und Sozialpolittk, Band 68, Heft 4 (January 1933), pp. 457-487.

NINE

THE CONSTITUTIONAL DILEMMA AND HITLER'S LEGAL ACQUISITION OF POWER

IN THE months between the July 20 action against Prussia and the October decision of the supreme court, the gov­ ernment's position deteriorated as the political and eco­ nomic crisis intensified. Despite the government's failures, Schmitt still saw the presidential system as the best alter­ native and he continued to advise the Schleicher clique along the lines of the arguments he had set forth in LegalMt und Legitimitat. While it is doubtful that Schleicher ever read this book, he had, through his aides and his own conversations with Schmitt, become familiar with the gen­ eral ideas of his legal adviser. Beginning in mid-August, the general's confidant, Erich Marcks, attempted to pop­ ularize Schmitf s Legalitiit und Legitimitat. "In its strict schol­ arly constructions, its deductions and in the richness of its content," Marcks informed Schmitt, "it is for us an excel­ lent arsenal in the fight for the future."1 It would be in­ accurate to construe from this, however, that Schmitt had altered his interpretations to suit the general's intrigues. From Schmitf s perspective, the Wehrminister represented the best chance for the fulfillment of the political and con­ stitutional tenets Schmitt believed were applicable to the current crisis. Marcks himself confirmed Schmitt's intellec­ tual integrity when he stated in the same letter, "that in popularizing it for political purposes one cannot do justice to your thought, but I hope that this political utilization will not be looked upon by you unsympathetically. Every1

Erich Marcks to Schmitt, September 6,1932, Schmitt, Personal Papers.

WEIMAR'S FINAL CRISIS, 1929-1933

one who actually reads your book will realize, in spite of our attempts, that it is geared to a different level which is not a reflection of a momentary political situation."2 But Schleicher's recent plans for acquiring popular sup­ port for the presidential system had been thwarted by the massive Nazi and communist gains in the July Reichstag elections. And Papen, the man Schleicher had personally selected to bring these plans to fruition, had already dis­ tinguished himself as the most unpopular chancellor in German history. Moreover, Schleicher began to have doubts about Papen, because it was becoming quite obvious that the chancellor, in addition to his ineffectiveness, was pur­ suing an independent course that could have catastrophic results for Germany. After the July elections, Schleicher's major concern was to bring the National Socialists under control, whereas Papen wanted to exploit the crisis to in­ stitute reactionary constitutional reforms.3 The reforms that Papen outlined in the August 10 cabinet meeting would, in effect, have destroyed the republican nature of the con­ stitution, by restricting voting rights and by establishing an upper house of parliament as a conservative counter­ weight to the Reichstag.4 Ironically, these plans were made public on August 11 by Interior Minister Gayl in a speech during the celebration of Constitution Day.5 Throughout the late summer and fall, both Papen and Gayl wanted to dissolve the Reichstag for an indefinite period of time and in the interim revise the constitution accordingly. Schleicher had no sympathy for this visionary course, fearing that during the current stage of instability such unpopular programs could lead to civil war, or force the 2

3

Ibid.

Hayes, "Schleicher," p. 57; Vogelsang, Schleicher, pp. 79-87, 93; Bracher, Die Auflosutig, p. 579. 4 Ministerbesprechung vom 10. August 1932, Reichskanzlei, R-43-1,1309, pp. 181-185. 5 Dorpalen, Hindenburg, p. 357.

PART III

army to defend unconstitutional ventures.6 On this point Schmitt was in complete agreement with Schleicher. Schemes for immediate constitutional revision conflicted with Schmitf s belief that altering the existing legal order in the midst of a crisis, particularly against the opposition of large segments of the population, was fraught with incalculable dangers. Schmitt recognized the need for reform, as did many republicans, but like Schleicher he felt that the res­ toration of stability and security must come first. And con­ trary to the position of Papen and Gayl, Schmitt stated that the exceptional powers of the president ". . . were in­ tended as a check on certain abuses of the parliamentary system, and therefore were meant to save this system, but were not intended to establish some new kind of state. "7

The immediate problem for both Schleicher and Papen, of course, was that the new Reichstag, scheduled to con­ vene on September 12, might bring down the government with a vote of no confidence. With the approval of his cabinet and Hindenburg, Papen planned to avoid this eventuality by dissolving the Reichstag during the first ses­ sion, before a vote of no confidence could be returned. The Nazis perceived Papen's scheme as an effort to deny them the fruits of their electoral victory and to force upon them the burdens of another expensive and exhaustive cam­ paign. They prepared, therefore, to foil Papen's plans by joining the communists in a vote of no confidence before Papen could dissolve the Reichstag.8 The National Social­ ists knew, however, that there were conflicting constitu­ tional interpretations over the issues of whether a chan­ cellor could, instead of resigning, dissolve the Reichstag after a vote of no confidence, and whether the government could remain in office until another Reichstag was elected. Party member Erich Zwade had informed the Nazi Iead6

Ibid., p. 384; Vogelsang, "Zur Politik Schleichers," p. 104. Legalitat und Legitimitcit, p. 89. 8 Fest, Hitler, pp. 345-347; Dorpalen, Hindenburg, pp. 361-363. 7 Schmitt,

WEIMAR'S FINAL CRISIS, 1929-1933

ership in late August that ". . . the Reich government, as is well known, had requested a Gutachten from the consti­ tutionalist Professor Carl Schmitt concerning whether it must resign in the event that it receives a vote of no con­ fidence from the Reichstag."9 According to Zwade's report, "Schmitt had declared continuation in office, despite a vote of no confidence, as compatible with the constitution." Nonetheless, the constitutionality of such a maneuver was still disputable and the Nazis tried to force the issue during a very confused parliamentary session on September 12, where the radicals returned a vote of no confidence while Papen dissolved the Reichstag. Considering the govern­ ment illegal after this vote, the Nazis refused to accept Papen's decree. But shortly thereafter the National Social­ ists reconciled themselves to the fact that the Reichstag had been dissolved. The Papen government was uncertain about its next move. Although under Article 25 it was constitutionally obligated to hold new elections within sixty days, it had not set a date for yet another round in what Schmitt called the now habitual process of appealing directly to the people in search of legitimacy. It was the general consensus of the cabinet that sixty days would be insufficient for the government's economic and social programs to show results, and that new elections would not only fail to end the deadlock but would most likely exacerbate the political crisis. With Nazi strength still increasing, negotiations with them a failure, and the likelihood of a postelection stalemate in the Reichs­ tag, Schleicher was willing to postpone elections beyond sixty days. He believed that such action could be taken on the grounds that the welfare of the nation, the people, and the economy precluded an election which would not change the existing state of political paralysis and which might 9 Dr. Erich Zwade to Rosenberg, August 26, 1932, Rosenberg-Akten, II, 76, MA-251 (22-23), Institut fiir Zeitgeschichte, Munich.

PART III

give the radicals an even greater majority in the Reichstag.10 Schleicher's aide, Eugen Ott, had conferred with Professors Schmitt, Jacobi, and Bilfinger the day after the Reichstag had been dissolved and they agreed that a temporary post­ ponement could be constitutionally justified.11 This would be a technical violation of the constitution; thus most of the cabinet rejected Schleicher's proposal. But Papen's own disagreement with Schleicher had little to do with the in­ tegrity of the constitution. The chancellor's primary objec­ tive was reactionary constitutional revision; he felt that a postponement of elections would not grant him the op­ portunity to fulfill this aim. The elections were then sched­ uled for November 6. Schmitt's private advice on postponing the elections did not contradict his public position on the defense of the constitution. Although according to his own interpretation of Article 48, the Reichstag was a part of the "organizational minimum" immune from presidential infringements, Schmitt had also held that no individual article, as well as no strict formalistic constitutional interpretation, should ever be al­ lowed to endanger the entire constitutional order or the security of the state. And in his Diktatur he had left open the possibility of postponing elections in the event of a Staatsnotstand (i.e., an extreme type of emergency that threatens the existence of the state itself). It might be nec­ essary to deviate from the letter of Article 25, Schmitt wrote, "if an extreme case should occur in which elections are completely impossible or the Reichstag could no longer be assembled, because the greater part of German territory was occupied by enemies or for similar extreme reasons. . . ."12 He obviously considered the current political con­ dition of Germany an "extreme case" warranting the tem­ porary postponement of elections. Schmitt felt that the 10 Ministerbesprechung vom 14. September 1932, Reichskanzlei, R-43-I, 1865, pp. 255-257. » Ibid. 12 Schmitt, Die Oiktatur, pp. 246-247, and Politische Theologie, p. 18.

WEIMAR'S FINAL CRISIS, 1929-1933

president, as defender of state and constitution, had the right, in fact the duty, to take such action if it was required to prevent a political catastrophe. The much debated elections of November 6 were a major setback for the Nazis, who lost two million votes. But Papen still faced an overwhelming majority of hostile depu­ ties in the Reichstag that could bring down his government. As it had done after the July elections, the government continued to grope for a way out of this political morass. Negotiations were conducted with various party leaders to see if any agreement was possible between the Reichstag and the government. Yet Papen and Gayl, to Schleicher's dismay, persisted in promoting their plans for declaring a state of emergency and instituting constitutional revisions. Schleicher preferred a more cautious policy of exhausting every legal alternative before daring a major breach of the constitution, because he was certain that the Papen-Gayl plans could lead to civil war at a time when the army was inadequate to cope with such a development.13 Even when Schleicher had earlier suggested postponing the elections, he requested ". . . that the question of reforming the con­ stitution in the current exceptionally tense situation be set aside."14 In subsequent cabinet meetings, Schleicher was supported in his stand against immediate constitutional revisions by Schmitt's closest friend in Berlin, Johannes Popitz, who was now serving as a minister-without-portfolio and as a member of the commissarial government in Prussia.15 The question of constitutional reform, mainly a rightist issue during the twenties, was by 1932 widely discussed. There was substantial disagreement, of course, concerning the type of reform and the process by which to achieve it. 13 Hayes, "Schleicher," pp. 56-57; Vogelsang, "Zur Politik Schleichers," p. 118; Dorpalen, Hindenburg, pp. 373-374, 385. u Ministerbesprechung 20. Oktober 1932, Reichskanzlei, R-43-I, 1309, pp. 331-333. 15 Beck, Prussian Republic, pp. 155, 165.

PART III

But even republicans acknowledged what Schmitt had been stating for years, that the peculiar nature of German po­ litical parties, in conjunction with the Weimar electoral sys­ tem, were themselves in large part responsible for the cur­ rent crisis of parliamentary government.16 Schmitt's critic Hans Kelsen spoke in favor of changing the electoral sys­ tem to allow citizens to vote for individual candidates in­ stead of party lists; the former leader of the German Dem­ ocratic Party, Erich Koch-Weser, advocated a constitutional revision that would strengthen the power of the presi­ dent.17 A similar change of attitude was reflected in the liberal press, which now agreed that Germany's hopes for a viable parliamentary government could only be realized through a reform of the electoral system and of the struc­ ture of political parties.18 There was, however, a well-founded concern that re­ forms instituted by the present government might destroy the republican nature of the constitution. Many of those who harbored such a suspicion incorrectly assumed that Schmitt was the one furnishing the theoretical support for the Papen-Gayl plans for reactionary constitutional reform. Otto Kirchheimer charged that in Legalitiit utid Legitimitat his former teacher had provided the foundations for a re­ gressive "constitutional revolution."19 The Catholic Center Party, which had voiced no objections to Schmitt's consti­ tutional interpretations while they were used by the Bruning government, now accused Schmitt of attempting to transfer absolute power to the president. Schmitt's aim, wrote Georg Schreiber in a publication explaining the Centrist 16

Dorpalen, Hindenburg, p. 357; Sieling NacHlass, Nos. 484-2, 484-3, 484-4. Eritii Koch-Weser to Otto Gessler, March 26,1932, Koch-Weser Nachlass, No. 40, BA. See also Waldemar Besson, "Zur Frage der Staatsfiihrung in der Weimarer Republik," Vierteljahreshefteftr Zeitgeschichte, Jg. 7 (1959), pp. 85-111. 18 Eksteins, Limits of Reason, pp. 216-219. 19 Otto Kirchheimer, "Constitutional Reaction in 1932," Selected Essays, p. 77. 17

WEIMAR'S FINAL CRISIS, 1929-1933

political position, was to create a fascistic "total state" in which the state would have complete control over society.20 Schmitt's affiliation with the Papen government had, in fact, led to his complete alienation from the Catholic camp. It was at this time that Hochland, the Catholic journal for­ merly so receptive to his ideas, published its first attack on Schmitt's political theory.21 Even the intimate relationship between Schmitt and his most devoted Catholic admirer, Waldemar Gurian, had soured. While Gurian continued to integrate Schmittian concepts into his own works, he viewed Legalittit und Legitimitat as a scholarly blind concealing the type of constitutional revision demanded by the right.22 Decisive in creating these misunderstandings of Schmitt's attitude toward constitutional reform was that in the public mind he was so closely associated with the Papen govern­ ment; thus his recent writings were interpreted accord­ ingly. In the confusing atmosphere of these months, mere associations, past and present, were often the bases on which public figures were categorized politically and ide­ ologically. This point was illustrated by the fact that in the fall of 1932, the editors of the leftist Weltbiihne identified Schmitt not just as the "Kronjurist of the Papen dictator­ ship," but also as a Catholic thinker affiliated with the position of the Center Party.23 Nonetheless, the suspicion about Schmitt's role in the 20 Georg Schreiber, Regierung ohne Volk: Eine positive Kritik (Cologne, 1932), pp. 80-85, 101, 126. Schmitt was not advocating total state control over society. For Schmitf s attitude toward the concept of the "total state" see Hilter der Verfassung, pp. 73-91; and Schwab, Challenge, pp. 77-80. See also Heinz O. Ziegler, Autoritarer oder totaler Staat (Tubingen, 1932). 21 Erich Brock, "Der Begriff des Politischen: Eine Auseinandersetzung mit Carl Schmitt," Hochland, Jg. 29, Heft 11 (1932), pp. 394-404; and Ackermann, Hochland, p. 124. 22 Walter Gerhart (Waldemar Gurian), Um des Reiches Zukunft: Nationale Wiedergeburt oder politische Reaction? (Freiburg, 1932), pp. 34-39, 48-49, 8991, 107-119, 124, 199, 209; Hurten, Gurian, p. 78. 23 Jan Bargenhusen, "Termin: 6. November," and Kurt Hiller, "Ewiger Friede in Gansefflsschen," Die Weltbilhne, Jg. 28 (1932), pp. 269, 499-500.

PART III

formation and promotion of plans for constitutional revi­ sion was sufficiently widespread that the director of the Bavarian finance ministry, Fritz Schaffer, requested an ex­ planation from Papen himself. In a personal letter to the chancellor, Schaffer wrote that, "yesterday I was informed that Professor Dr. Karl Schmitt is commissioned to draft a new constitution. Professor Karl Schmitt as a result of his publication has become a controversial personality. It would be particularly doubtful, however, if he in his manner of thinking would show sympathy for sound federalist ideas. I would therefore like to inquire if this rumor is correct and if he in particular has been commissioned as the sole con­ stitutionalist engaged in the drafting of a new constitu­ tion."24 Papen could honestly deny this rumor, because Schmitt had not been commissioned for such a task.25 Papen's alleged Krottjurist had, in fact, no sympathy with the chancellor's reform plans. Early in November, Schmitt did discuss one aspect of constitutional reform with the Berlin lawyer Hans Fritz Abraham. Their conversation centered around counteract­ ing the abuse of Article 54 by obstructionists in the Reichs­ tag. By bringing down governments with no-confidence votes while they were unwilling or unable to form a new government, the radical rightists and leftists controlling the majority were creating a political vacuum they could exploit to subvert the republic. Schmitt, who had pointed out this loophole in the Weimar constitution as early as 1927, con­ curred with Abraham that the problem could be remedied if a vote of no confidence in a chancellor was made de­ pendent upon the selection of a successor.26 This idea had nothing to do with the Papen-Gayl scheme; it was certainly not of a reactionary nature. That same concept, later adopted 24 Fritz Schaffer to Papen, September 24, 1932, Reichskanzlei, R-43-I, 1865, pp. 289-290. 25 State Secretary Planck to Schaffer, October 4,1932, ibid., pp. 291-293. 26 Hans Fritz Abraham to Schmitt, November 14, 1932, Schmitt, Per­ sonal Papers; and Abraham to State Secretary Planck, November 14,1932, Reichskanzlei, R-43-I, 1865, pp. 317-319.

WEIMAR'S FINAL CRISIS, 1929-1933

by the framers of the Bonn constitution of 1949, was also suggested by the Social Democratic theorist Ernst Fraenkel.27 "Carl Schmitt was undoubtedly correct," Fraenkel wrote in 1932, when he stated that a parliament incapable of governing "did not have the right to incapacitate other responsible institutions of government. . . Z'28 So long as the Reichstag was unable to fulfill its constitutional obli­ gations there was a danger that parliament would bring the state machinery to a standstill and give the enemies of the constitution an opportunity for a Staatsstreich.29 Agree­ ing with Schmitt, Fraenkel stated, "the parliament should not be allowed to die because of parliamentarianism."30 Under the current circumstances, the survival of the re­ public required a flexible and realistic interpretation of the constitution. Blind loyalty to every word of the constitu­ tion, Fraenkel warned, contained the danger that its spirit be overlooked: "Loyalty to the constitution should never become constitutional fetishism."31 Repeated votes of no confidence had not strengthened, but weakened, the power of parliament and made the revision of Article 54 an un­ avoidable necessity. The decisive factor should not be the sacrosanct nature of every constitutional phrase, but that such reform be in accordance with the basic principles of the constitution. That, Fraenkel asserted, was "the signif­ icant point of the teaching of Carl Schmitt. . . ."32 In contrast to Abraham and Fraenkel, however, Schmitt did not view the revision of Article 54 as a solution to the current parliamentary crisis. Schmitt still believed that the future of the German state and constitution could best be guaranteed by the exercise of presidential power. Attempts at constitutional reform would only aggravate the situation, 27 Ernst Fraenkel, "Verfassungsreform und Sozialdemokratie," Die Gesellschaft, Jg. 9 (1932), p. 494. 28 Ibid., p. 488. 25 Ibid., p. 492. 30 Ibid., p. 495. 31 Ibid., p. 491. 32 Ibid., pp. 489-490.

PART III

and therefore he urged that they be postponed until sta­ bility had been restored. In a lecture delivered at a confer­ ence of Westphalian industrialists in late November, Schmitt spoke out against immediate constitutional reform. He also publicly disagreed with the Papen-Gayl plan when he cau­ tioned against overestimating the political importance of an upper house of parliament and advised delaying dis­ cussion on the matter until stability could be reestab­ lished.33 "We need first of all," he said, "a strong viable state equal to its great problems. When we have that, then we can create new organizations, new institutions, new constitutions. In my opinion it is high time and we no longer have many possibilities, also no longer much lati­ tude for great constitutional experiments. . . . Therefore, it is better first of all not to establish authority through new institutions. . . . [instead] the government should utilize all constitutional means, but all constitutional means, which stand at its disposal. . . Z'34 33 In "Carl Schmitt in der deutschen Innenpolitik," pp. 125, 132-137, Muth asserts that Schmitt supported the Papen-Gayl-DNVP plans for constitutional revision, including the establishment of an upper house. Muth argues that although Schmitt was reserved in his public promotion of these schemes, he allowed his students, Ernst Forsthoff and Ernst R. Huber, to publish articles fostering constitutional revision. The articles cited, however, merely contain an elaboration of the arguments found in LegalitSt und Legitimitat, and suggest nothing about immediate constitu­ tional change. Only once, at the end of Huber7S article, is an upper house mentioned and then only as an example. These articles were preliminary legal discussions of the type of constitutional reform that would be nec­ essary in the future, with emphasis on Schmitt's concept of the second constitution. And nothing in these works contradicts Schmitfs public position. See Friedrich Landeck (Muth believes this is a pseudonym for either Forsthoff or Huber), "Verfassung und Legalitat," Deutsches Volkstum (September 2, 1932), pp. 733-737; Ernst Forsthoff, "Legalitat und Weimarer Verfassung," Rheinisch-Westfalische Zeitung, No. 521 (October 12, 1932); Ernst R. Huber, "Der Bedeutungswandel der Grundrechte," Arehiv des offentlichen Rechts, Bd. 23, Heft 1 (December, 1932), pp. 1-98. 34 Carl Schmitt, "Gesunde Wirtschaft im starken Staat," Mitteilungen des Vereins zur Wahrung der gemeinsamen wirtsehaftliehen Interessen in RheinIand und Westfalen, No. 1, Heft 21 (November 23, 1932), pp. 30-31.

WEIMAR'S FINAL CRISIS, 1929-1933

But with the new Reichstag scheduled to meet on De­ cember 6, Hindenburg and his advisers had not yet agreed on any course of action to break the inevitable parliamen­ tary impasse they would soon confront. Papen urged the president to declare a state of emergency and to dissolve the Reichstag for an indefinite period; meanwhile a new constitution could be written. Schleicher opposed the plan on the grounds that it would be regarded as a Staatsstreich, be devoid of popular support, and lead to civil war. Still seeking to avoid the use of force and a major constitutional violation, Schleicher proposed an alternative. He would try to create a national front extending from the socialists and Catholics to the left wing of the Nazi party. The goal would be to rally the popular anti-capitalist forces, which had been traditionally divided by class, ideology, and religion, be­ hind a massive program of social reform and public works projects that would not just counteract the economic crisis, but produce a national revival as well. Schleicher hoped to acquire the support of the army, the Catholic and socialist trade unions, and even the Reichsbanner, the paramilitary organization consisting primarily of Social Democrats that had been created to defend the republic. He also thought that he could convince part of the NSDAP to back the government and its essentially socialist programs.35 Had Schleicher succeeded, he would have established, without a breach of the constitution, the long-discussed govern­ ment above parties. Schleicher had been considering this option since Au­ gust, but delayed proposing it because he could not find an acceptable candidate to serve as chancellor in this na­ tional front government.36 For some time, Schmitt had been aware that Schleicher was working in this direction, and he wholeheartedly supported the concept in his November 35 Hayes, "Schleicher," pp. 56-59; Fest, Hitler, pp. 351-353; Dorpalen, Hindenburg, pp. 389-393; Bracher, Die Auflosung, p. 589; Vogelsang, Schleicher, pp. 86-89. 36 Dorpalen, Hindenburg, pp. 390-391.

PART III

speech before the industrialist conference, though he made no mention of Schleicher. The government, Schmitt stated, must establish direct contact with the productive social forces within Germany. The solution was not to be found in con­ stitutional reform, but in energetic leadership and in con­ crete programs for public works projects and for the mo­ bilization of German youth. Schmitt was convinced that this approach "was feasible and not Utopian."37 He told his audience that a government which brought together the social and economic forces of the German people was bound to succeed. But soon after Schleicher personally assumed the chan­ cellorship on December 3, it was evident that he could not bring his plan to fruition. Despite his proposed reforms and his conciliatory policies toward the Reichstag and the trade unions, Schleicher did not receive the expected back­ ing from the left. When he failed to acquire any support from the NSDAP, the entire plan had to be scuttled. Equally disastrous for both Schleicher and the republic was that in January 1933, Papen had begun negotiating with Hitler, and by this time it was Papen, not Schleicher, who held the president's confidence. By late January, when it appeared that either Papen or Hitler might become chancellor, Schleicher concluded that exceptional measures were required as a last resort. He requested that the president declare a state of emergency, ban the Nazi and Communist parties, and dissolve the Reichstag until stability could be restored. During the in­ terim Schleicher would govern by emergency decrees, but he proposed no constitutional revisions.38 This was pref­ erable to the potentially calamitous return of Papen, with his dangerous reform plans and unpopularity. It would also preclude the possibility that as chancellor Hitler would eventually usurp all power and completely destroy the con­ stitution, even the nature of the German state, in favor of 37 38

Schmitt, "Gesunde Wirtschaft im starken Staat/' pp. 31-32. Craig, Germany, pp. 566-568; Bracher, Die Aufldsung, pp. 616-620.

WEIMAR'S FINAL CRISIS, 1929-1933

the proclaimed Third Reich. Had Hindenburg complied with Schleicher's request, the president would have denied the equal chance to an anti-constitutional party and thus, in Schmitt's estimate, truly acted as the defender of the constitution. But to Hindenburg, this new plan sounded much like the one Schleicher had assailed as dangerous when Papen had proposed it two months before. Having lost faith in Schleicher, fearing civil war, and trying to avoid violating his oath to uphold the constitution, Hindenburg refused. At this point, Schleicher was the only leader in a position to prevent the Nazi acquisition of power, if the president had only granted him this authorization. Con­ sequently, Hitler acquired power not through the use of Article 48, but because it was not used against him.39 Although Schleicher had failed to persuade Hindenburg, news of the discussion leaked, eliciting a public outcry against an alleged Staatsstreich. The defenders of the re­ public were so concerned with a constitutional violation that they were blinded to the dangerous alternatives so clear to the chancellor and Schmitt.40 The Catholic Center Party, for example, insisted on guaranteeing the integrity of the constitution by living up to the letter of each article. The leader of the Center, Prelate Kaas, wrote to Schleicher on January 26, warning him against "the entire basic tend­ encies of Carl Schmitt and his followers to relativize con­ stitutional law.. . ."41Thepostponementofelections, Kaas stated, would violate the constitution; a return to consti39 Detlef Junker, Die deutsche Zentrumspartei und Hitler 1932/33: Ein Beitrag zur Problematik des politischen Katholizismus in Deutschland (Stuttgart, 1969), pp. 70-71; Ott, "Machtergreifung," pp. 16-17; Eschenburg, "Die Rolle der Personlichkeit," p. 27. However, Hayes, "Schleicher," p. 63, argues that "the game was already up," and that Schleicher's new strategy never could have succeeded. 40 As Vogelsang notes, "Loyalty to the constitution could now be uti­ lized against Schleicher and in a grotesque manner it would become the most powerful trump-card in Hitler's hand. . . ." Schleicher, p. 94. See also Dorpalen, Hindenburg, pp. 426-444. 41 Prelate Kaas to Schleicher, January 26, 1933, Reichskanzlei, R-43-I, 1865, pp. 403-405.

PART III

tutionally authorized coalitions, and not an unconstitu­ tional state of emergency, was the proper course. Kaas also forwarded a copy of this letter to Hindenburg. The following evening Schmitt was invited to the house of Erich Marcks, where he learned that Schleicher would have to resign and that either Papen or Hitler would receive the chancellorship.42 Schleichei5S resignation, though not entirely unexpected, was a major political and personal disappointment for Schmitt. Since the beginning of the presidential system, Schmitt had looked to Schleicher as the one leader who could guide Germany through the cri­ sis, and who might be influenced by his political and legal theories. The possibility of Schmitt's exerting more influ­ ence on political events, which had opened up when Schleicher became chancellor, had now disappeared. "I was eliminated from the race," Schmitt later reminisced, "insofar as I was ever really in the race as a behind-thescenes adviser."43 The next day, Hindenburg again rejected Schleicher's request for a state of emergency and the chan­ cellor resigned. To Schmitt's surprise, however, Schleicher's fall had not ended his own public involvement in the controversy. For below the front-page article in Germania announcing the chancellor's resignation was the letter in which Kaas had warned Schleicher against Schmitt's constitutional relativ­ ism.44 Angered particularly over the headline, "Kaas Warns of Illegality," Schmitt considered the letter a personal af­ front and a gross misrepresentation of his constitutional theory; but he wavered in deciding whether he should try to vindicate himself. After discussing the matter with Po42

Tommissen, Over, p. 102. Interview by Ansgar Skriver with Carl Schmitt, in "Hitlers Machtergreifung vor 40 Jahren im Gedachtnis von heute: Eine zeitgeschichtliche Befragung," Westdeutscher Rundfunk, Hauptabteilung Politik, 8:45 p.m., January 30, 1973, p. 13. 44 "Kass warnt vor Dlegalitat: Ein Schreiben an Schleicher und Hinden­ burg," Germania, Jg. 3, No. 29 (January 29, 1933). 13

WEIMAR'S FINAL CRISIS, 1929-1933

pitz, who tried to dissuade him from responding, Schmitt decided to retort to Kaas's accusations.45 On the morning of January 30, Schmitt drafted his response to Kaas, and sent copies to Papen, Hindenburg, and the chief justice of the supreme court, as well as to Germania and the Kolnische Volkszeitung.46 Schmitt's letter was direct and forceful. He stated that he had the courage to defend his scholarly convictions and did not fear either a factual discussion or a public exami­ nation of his ideas. But Kaas's warning of illegality had raised unjust political suspicion about his scholarship. And Schmitt retorted, "one would find in none of my publi­ cations and in no authentic verbal remark even one phrase which could justify such degrading of my constitutional interpretations. My constitutional expositions are entirely concerned with the attempt to convey recognition of the meaning and consequences of the German constitution, without regard to changing party interests, and to oppose degrading it to a tactical instrument and tool. I do not relativize constitutional law, but struggle against a misuse of the concept of legality and against a value- and realityneutral functionalism."47 Contrary to the claims of Schmitt's post-World War II critics, that statement was not an apol­ ogy, but a succinct elucidation of his basic approach to constitutional law.48 After dictating this letter, Schmitt went to the cafe Kutschera, where he first heard the news of Hitler's ap­ pointment as chancellor. Schmitt noted in his diary that he was "irritated, and yet somehow relieved; at least a deci45 Skriver,

"Hitlers Machtergreifung," pp. 11-13. Schmitt to Prelate Kaas, January 30, 1933, Stellvertreter des Reiehskanzlers Vizekanzlei von Papen, R-53, 77, pp. 136-137. 46

47

48

Ibid.

Those who view Schmitfs response as an apology include Muth, "Carl Sehmitt in der deutschen Innenpolitik," pp. 145-147; and Kurt Sontheimer, "Carl Schmitt: Seine 'Loyalitaf gegeniiber der Weimarer Verfassung," Nene Politische Literatur, Jg. 3, Heft 10 (October 1958), pp. 757770.

PART III

sion."49 That evening, while the victorious Nazis staged a torchlight parade through the Brandenburg Gate, Schmitt remained at home. Wilhelm Stapel paid him a visit and they discussed recent political developments over a bottle of red wine. Though an advocate of the conservative rev­ olution, Stapel, like Schmitt, was alarmed over Hitler's ap­ pointment, for a Nazi dictatorship was not the "New State" he had envisioned. A few days earlier, his colleague, Albrecht Erich Giinther, had beseeched Erich Marcks to per­ suade Schleicher to protest vigorously against handing the chancellorship over to Hitler.50 Stapel's disappointment with the president's decision was emphasized by his remark that "he no longer considered Hindenburg a Prussian."51 Ex­ hausted after three years of fruitless work with the presi­ dential system, Schmitt was in a rather philosophical mood; he had the feeling that something had come to an end. He was witnessing the suicide of the Weimar Republic. But the republican parties did not seem to realize im­ mediately that the appointment of Hitler had signaled a unique change in German politics. After all, with the for­ mation of a cabinet in which conservatives had the major­ ity, there was the illusion that Hitler could be held in check, and with new elections scheduled, the letter of the con­ stitution had been upheld. Andreas Dorpalen captured the essence of this legalistic scenario when he noted that "only a week before the Weimar parties had furiously protested against Schleicher's intention of suspending the constitu­ tion, but they saw nothing objectionable in Hitler's chan­ cellorship because all the constitutional niceties had been observed. The view that the Weimar Republic was a polit­ ical neuter equally open to all parties and ideologies had come full circle."52 While he was being criticized by Kaas and others for 49

Skriver, "Hitlers Machtergreifung," p. 12. Kessler, Stapel, p. 147. 51 Skriver, "Hitlers Machtergreifung/' p. 18. 52 Dorpalen, Hindenburg, p. 444. 50

WEIMAR'S FINAL CRISIS, 1929-1933

allegedly justifying the illegal actions of the government, Schmitt was actually trying to warn that a constitutional system could not remain neutral toward its own basic prin­ ciples, nor provide the legal means for its own destruction. A true defender of the constitution must, he stated re­ peatedly, distinguish friend from enemy and take neces­ sary measures, including the temporary suspension of cer­ tain parts of the constitution, to assure that anti-constitutional parties do not acquire the legal reins of power. But as late as February 1933, the Catholic Center Party, an institution so fearful of a constitutional violation, continued to attack Schmitt's interpretation of presidential power and his Iatitudinarian interpretation of the constitution.53 At the same time that the Center Party was condemning Schmitf s friendenemy theory as "naive and simplistic," Hitler was busy using his legal authority to suppress his opposition and to consolidate his control over the German state. The reality Schmitt had foreseen in Legalitat und Legitimitat was taking its revenge. Schmitt did not expect to be on the Berlin scene to wit­ ness subsequent events. By a strange coincidence his aca­ demic career had brought him to Berlin just as the presi­ dential system was about to be instituted. Now his departure from the capital, also for professional reasons, coincided with the failure of that system and the end of Weimar. He was preparing to leave Berlin to fill the chair of public law at the University of Cologne vacated by the death of Pro­ fessor Fritz Stier-Somlo. The process of attracting Schmitt to their university had been started by the law faculty at Cologne the previous April.54 Throughout summer and fall they made persistent efforts, including several very cordial 53 The Center now called Schmitt one of the ". . . Kronjuristen of au­ thoritarian government and a scholarly propagandist for antiparliamentarian movements." See Das Zentrum: Mitteilungsblatt der Deutschen Zentrumspartei, Jg. 4, Nos. 1/2 (1933), pp. 7-8, 24-25. 54 Professor Nipperdey to Professor Eckhardt, April 7, 1932, Schmitt, Personal Papers.

PART III

letters of encouragement from Schmitt's traditional liberal opponent Hans Kelsen, to convince Schmitt to accept the position.55 The chair was officially offered on August 6, and accepted in early November, before the final collapse of Weimar was evident, with the provision that Schmitt would assume his duties on April 1, 1933. Obviously, Schmitfs scholarly reputation had not been as tarnished by his politics as one might have assumed. His involvement with the presidential government, in fact, probably enhanced his standing in the eyes of conservative professors. But, as Kelsen's correspondence indicates, even to those liberal academicians who disagreed with his pol­ itics and ideas, Schmitt's sagacious mind, scholarly stature, and unassailable credentials still made him very attractive professionally. Schmitfs liberal friend, Moritz Julius Bonn, the director of the Handelshochschule, did everything pos­ sible to keep him in Berlin.56 Although in his memoirs he claimed that Schmitt left Berlin for political reasons, Bonn knew quite well that Schmitt's decision was a professional one, for the Handelshochschule had fallen on hard times.57 Recent changes in administration and jurisdiction made by the Reich commissar for Prussia indicated that the insti­ tution would no longer be sufficiently funded to keep prominent full professors. They would be replaced, Bonn lamented, by "poorly paid, young Dozenten from the pro­ vincial universities" and this would mean "the end of the Handelshochschule" as far as Bonn was concerned.58 Start­ ing with Schmitt, Bonn hoped to prevent the flight of full 55 Professor Windelband, Prussian Minister for Science, Art, and Ed­ ucation, to Schmitt, August 2, 1932; Professor Nipperdey to Schmitt, August 11, 1932; Professor Lehmann to Schmitt, August 12, 1932; Hans Kelsen to Schmitt, September 3 and 7, October 7,1932, Schmitt, Personal Papers. 56 Moritz Julius Bonn to Schmitt, October 5, 1932, Bonn Nachlass, No. 56. 57 Bonn, Bilanz, pp. 331-332. 58 See Bonn's private memorandum of October 28,1932, Bonn Nachlass, No. 56.

WEIMAR'S FINAL CRISIS, 1929-1933

professors and thereby protect the prestige of his institu­ tion. But by the fall of 1932, Bonn resigned himself to Schmitfs departure, because he knew that Schmitt had been unofficially informed that a future call to the Univer­ sity of Berlin would be dependent upon his acceptance of the position at Cologne. And Schmitt was not about to compromise such a prestigious future promotion. The years Schmitt spent in Berlin were full of intense activity and excitement. He was in the midst of the political and constitutional conflicts leading up to the demise of the republic. But though he received a great deal of publicity and criticism as the government's Kronjurist, he always remained a secondary figure, an intellectual trying unsuc­ cessfully to have an impact on political events. Political leaders and intellectuals alike used his ideas in defense of their own plans, disregarding these same ideas when they did not coincide with their own political purposes. Never­ theless, Schmitt did believe that his writings and counsel would have the effect he desired; he came closest to this goal in providing a legal justification for the presidential system and with Schleicher's efforts to stop the National Socialists. Yet, in the final analysis he failed to make a significant difference, and whatever influence he might have had ended with Schleicher's resignation. Standing in the Leipzig courtroom a few months earlier, he had been at the peak of his public career. Now it appeared that his venture into the political arena was over and he was about to leave public life to return to the isolation of the ivory tower. But any psychological letdown he experienced by being removed from the public eye was to be short-lived. For within the next few months he would unexpectedly emerge once again in the limelight.

PART IV THE NAZI EXPERIENCE, 1933-1947: COLLABORATION, REPUDIATION, AND RECKONING

TEN

THE "CROWN JURIST" OF THE THIRD REICH

IN THE early months of 1933, Schmitt found himself in a predicament similar to the one he faced in 1918-1919. Once again there was the possibility of an abrupt change from one legal and political system to a new order, the precise nature of which, though not readily apparent, was poten­ tially disastrous. During the upheavals that followed World War I, his anxiety had stemmed from the spectre of a dic­ tatorship of the proletariat; now he was equally apprehen­ sive over the eventual establishment of a National Socialist dictatorship. When the monarchy had collapsed, Schmitt had wondered to what extent the left might succeed in destroying the institutions of the Second Reich and in rev­ olutionizing the social order of Germany. In 1933, the ques­ tion was how far the Nazis would be allowed to go in attempting to transform German society and the state into their Third Reich. At first, Schmitt, like so many of his countrymen, still felt somewhat reassured by Hindenburg's authority to dismiss Hitler if the need arose and by the hope that the army could keep the Nazis in check.1 Early in February, Schmitt told Ferdinand Hermens that Schleicher and the army would do everything possible to bring an end to the Nazi adventure.2 As the weeks passed, it was clear that Schmitt had mis­ calculated. Not only was the army, an institution Hitler 1 Christopher Sykes, Tormented Loyalty: The Story of a German Aristocrat Who Defied Hitler (New York, 1969), p. 86; Craig, Germany, pp. 567-571; Dorpalen, Hindenburg, pp. 443-446. 2 Ferdinand Hermens, Zwischen Politik und Vernunft: Gesammelte Aufsatze aus drei Welten (Berlin, 1969), pp. 158-159.

PART IV

was now trying to placate, unprepared to take action, but Schleicher had lost credibility with the Yiehrmacht leaders.3 Even the democratic press no longer voiced strong oppo­ sition.4 Moreover, the Nazis were making effective use of what Schmitt had called the "political premiums" inherent in the legal possession of power to suppress their oppo­ sition and to achieve their party goals. Along with the Nazi campaign of terror and intimidation, Hitler was abusing his control of the state apparatus, particularly the authority of Article 48, in a way that previous presidential chancellors would never have been allowed. Emergency decrees in­ stituted during early February, placing tight restraint on freedom of the press and public meetings, were followed by the decree of February 28, which virtually suspended all basic rights. In control of the police and the mass media, and unhindered by the legal restrictions forced upon their opponents, the Nazis had a tremendous advantage in the Reichstag elections scheduled for March 5.5 More and more, the situation resembled the one Schmitt had foreseen in Legalitiit und Legitimitat, in which the decisive question was what group held power when the entire legal system was thrown aside.6 Although the elections of March 5 did not produce as great a Nazi victory as anticipated, the combined seats of the NSDAP and the German Nationalists did provide Hitler with a legal majority in the Reichstag, reinforcing his grip on the state while further demoralizing the opposition. The next Nazi goal, however, the establishment of a dictator­ ship under the guise of a legally enacted Enabling Act, required a constitutional amendment. But within a matter of weeks, by purging the communists and intimidating the other parties (with the exception of the SPD), Hitler ac3 Craig, Prussian Army, pp. 470-471; Wheeler-Bennett, Nemesis of Power, pp. 284-285. 4 Eksteins, Limits of Reason, pp. 272, 310. 5 Bracher, Dictatorship, pp. 202-203; Dorpalen, Hindenburg, pp. 448-460. 6 Schmitt, Legalitiit und Legitimitcit, p. 40.

THE NAZI EXPERIENCE, 1933-1947

quired the necessary two-thirds majority under Article 76 to pass an Enabling Act on March 24.7 Under this act, which was to last for four years, laws could be passed not only by the Reichstag, but by the government itself, thus elim­ inating the separation of powers. Equally significant, laws decreed by the government could deviate from the consti­ tution so long as they did not violate the rights of the Reichstag, Reichsrat, and the office of the president. In reality, only decisive action on the part of Hindenburg could now prevent Hitler from acquiring virtually absolute dic­ tatorship. Within a week Schmitt had an article in print assessing the implications of the Enabling Act.8 To him that act was much more than a major constitutional amendment, or a temporary emergency provision similar to the Enabling Act of 1923. It represented instead a revolutionary change in the essence of the constitution itself, as decisive a trans­ formation as the revolution of 1918.9 Up to this point, against the opposition of the overwhelming majority of German jurists, Schmitt had held that there were definite limits to constitutional changes that could be made by the Reichstag under Article 76. Although his critics had argued that his interpretation would infringe upon the rights of the Reichs­ tag, it was Schmitt's contention that no constitutional sys­ tem should provide the means for its own destruction. His real fear, which had since materialized, was that an anticonstitutional party would seize upon the amendment process to undermine the constitution. Now Germany con­ fronted a fait accompli and, despite the four-year limit on the Enabling Act, Schmitt knew that any hopes for a future return to the constitutional system of Weimar were illusory. In a later publication, he described the Enabling Act as the 7 Gesetz zur Behebung der Not von Volk und Reich. Vom 24. Marz 1933, Reichsgesetzblatt, Teil I, No. 25 (March 24, 1933), p. 141. 8 Carl Schmitt, "Das Gesetz zur Behebung der Not von Volk und Reich," Deutsche Juristen-Zeitung, Jg. 38, Heft 7 (April 1, 1933), pp. 455-458. 9 Ibid., pp. 456-457.

PART IV

"provisional constitution of the German Revolution," the genesis of a new political and legal order.10 Nevertheless, because the constitution had not been officially abrogated, and the institutions of the Reichstag, the Reichsrat, and president were immune from decrees under the Enabling Act, Schmitt continued to argue that parts of the Weimar constitution were still valid. He made a special point of emphasizing that the president retained his constitutional authority, including his supreme command of the army, his right to dismiss the chancellor, and his emergency pow­ ers under Article 48.11 So although Schmitt expected Hitler to use his legal mandate and dictatorial powers to institute far-reaching changes in the existing political and legal sys­ tem, he was still hoping, even at this point, that Hindenburg could serve as a counterweight to the Nazis. But lingering hopes notwithstanding, the Enabling Act had produced a decisive change in Schmitt's attitude; henceforth he adopted a more conciliatory stance toward the Nazis. His previous reservations on immediate consti­ tutional revision now seemed unimportant, since the con­ stitution had already been irreversibly altered; he now ac­ cepted further reform as a major goal of the new government.12 Similarly, his fears of civil war had van­ ished, because the Nazis now controlled the government, had acquired a legal mandate in the March elections, and were sufficiently powerful under the Enabling Act to elim­ inate their opposition and institute wide-ranging reforms. Whatever his distrust and disapproval, Schmitt had to ad­ just himself to the fact that National Socialism had become the dominant force in German politics. At first it appeared most unlikely that Schmitt would have any role in the Hitler regime, given his association with the Schleicher clique, previous opposition to the Na­ tional Socialists, and lack of contact with the party. He was 10

Carl Schmitt, Das Reichsstatthaltergesetz (Berlin, 1933), p. 9. Schmitt, "Das Gesetz," p. 457. aIbid.

11

THE NAZI EXPERIENCE, 1933-1947

an outsider with far fewer possibilities of exerting influence than under the presidential system. At the end of March, Schmitt left Berlin for Rome, where he intended to celebrate Easter before assuming his new post in Cologne.13 But upon arriving in Munich on March 31, he received an unexpected telegram from Papen instructing him to return to Berlin for a meeting the following afternoon. Schmitt had been ap­ pointed to a committee charged with drafting a law that would significantly change the relationship between the Reich and the states.14 Since this law would, in effect, le­ galize the Nazi takeover of state governments, compliance with the Papen directive marked a turning point in Sdimitfs life and work. It was his first act of collaboration with the Third Reich. This law was only one aspect of the Nazi policy of Gleichschaltung (coordination), by which Hitler tried to force all institutions of state and society to comply with the will of the party. Through threats, political violence, and the abuse of federal power, the Nazis already exerted control over most state governments.15 But ever cognizant of the im­ portance the veil of legality had for his consolidation of power, Hitler wanted to legalize and institutionalize these gains in order to preclude any resistance, or noncompli­ ance, at the state level. On March 31 his cabinet passed a law for the coordination of the states with the Reich, through which all state governments (except the already Nazified one in Prussia) were dissolved and reorganized without elections. These new Nazi-controlled governments could deviate from state constitutions and pass laws without the consent of their legislatures. Desiring additional assurance that his directives would be followed, Hitler had on that 13 Tommissen,

Over, p. 106. Papen to Schmitt, March 31, 1933. Schmitt had met with Papen on February 16 to discuss Kaas's attack on Schmitfs constitutional theory. Papen to Schmitt, February 13,1933, and Schmitt to Papen, February 14, 1933. Vizekanzlei von Papen, R-53, 77, pp. 138-140. 15 Bracher, Dictatorship, pp. 203-210. 14

PART IV

same day instructed Papen to draft a "Second Law for the Coordination of the States with the Reich," which would empower Hitler to appoint commissars (Reichsstatthalter) to oversee state governments.16 Papen immediately formed a commission comprised of himself, Schmitt, Popitz (now Prussian finance minister), and Nazi Interior Minister Frick. On Hitler's orders, the law was quickly written by this small group and passed by the cabinet on April 7. Schmitt viewed his participation in the Papen commis­ sion as an extension of his earlier work in the Prussia-Reich dispute; in both cases he felt he was acting on behalf of the German state. He had always favored a strong central government unhampered by federalism and the domestic strife characteristic of Weimar, and the Reichsstatthaltergesetz would go a long way toward solving the age-old problem of German particularism.17 Whether the recent actions of the Hitler government against the states were legally justifiable under the Weimar constitution seemed irrelevant, since Schmitt firmly believed that the Enabling Act had inaugurated a new legal order. Schmitt had always considered obedience to the legally constituted authority as a fundamental political precept and, just as he had trans­ ferred his allegiance in 1919 from the Second Reich to the Weimar Republic, he now felt bound to obey the newly constituted legal authority.18 Equally significant, Schmitt's rapid transition from opposition to collaboration was made easier by his association with men such as Papen and Popitz, whose continuance within Nazi governments tended to reinforce the illusion of conservative influence. This, along with the presence of Hindenburg, led Schmitt to believe there was still an opportunity to direct the new 16 Martin Broszat, Der Staat Hitlers: Grundlegung und Entwicklung seiner inneren Verfassung (Munich, 1969), pp. 143-144. 17 Schmitt, Hiiter der Verfassung, pp. 71-73, and Reichsstatthaltergesetz, pp. 3, 10, 13. 18 Schmitt, Ex Captivitate Salus pp. 20-21; Schwab, Challenge, pp. 106, l 148.

THE NAZI EXPERIENCE, 1933-1947

constitutional developments into a traditional conservative framework. The centralization of power was only the beginning of the far-reaching changes Schmitt expected as a natural con­ sequence of the Enabling Act. He thought that his renewed contact with conservatives in the government might offer him a chance to take part in establishing a theoretical legal framework for the new constitutional order he was sure would follow. As each month passed, however, it would become clearer that laws such as the one Schmitt helped draft merely shifted more power into Nazi hands, thereby further undermining the conservative position. But before awakening to this reality, Schmitt deluded himself into believing that he and his fellow conservatives could lay the foundations for a traditional authoritarian German state.19 Still displaying a typical conservative aversion to Na­ tional Socialism, Schmitt continued to maintain his distance from the party. It appeared that he might attempt to follow the path he had pursued throughout the Weimar Republic, remaining aloof from direct political activity while serving as a behind-the-scenes adviser to the conservative clique within the government. "I am a theorist," he told Veit Rosskopf in a radio interview the day after Hitler's ap­ pointment, "a pure scholar and nothing but a scholar."20 In order to comprehend events before being overwhelmed by them, he added, "... one must continually concentrate with great effort, above all with inner independence and without any egotistical self-interest, otherwise one will only grasp the total situation when it is past and it is too late."21 Unfortunately, the luxury of such intellectual and political 19

Referring to Schmitt, Walter Struve noted that "there is much justi­ fication for the claims made after World War II by demoted theorists that they sought during the early years of the regime to guide it into safer, more traditional, and less violent channels." See Elites, p. 146. See also Schwab, Challenge, p. 105; and Klemperer, Conservatism, p. 209. 20 Tommissen, Over, p. 114. 21 Ibid., p.118.

PART IV

autonomy soon proved untenable. Succumbing to fear and quickly forgetting his own advice, Schmitt subsequently based many of his political decisions on personal consid­ erations, and suffered the consequences for the rest of his life. Always a cautious realist, Schmitt's keen instincts for self-preservation took control as he witnessed the Nazi purge of German universities. On April 7, "The Law for the Res­ toration of a Professional Civil Service" removed the con­ stitutional rights of civil servants, including professional tenure. Schmitt knew that his own position was not im­ mune from such measures, particularly in view of his for­ mer opposition to National Socialism. Other well-known professors of law, such as Radbruch, Bonn, Cohn, Heller, Kantorowicz, and from Schmitt's own faculty at Cologne, Hans Kelsen, faced dismissal; before the purges ended over 11 percent of Germany's professors would lose their chairs.22 A further anxiety was presented by the large Nazi student groups who waged a noisy campaign of disruption and boycotts against Jewish, liberal, socialist, and noncooperative professors. Although he had not personally suffered the wrath of these students, it was not unreasonable for Schmitt to assume that his previous anti-Nazi stance, like his conservative views on the state, would eventually make him a likely target for those young Nazis who saw them­ selves in the vanguard of a truly revolutionary movement. Early in 1933, when the prominent nationalist intellectual Ernst von Salomon lectured at the University of Gottingen on reconstructing the state, the response from the Nazi students was, "We don't think much of Carl Schmitt." "You see," a young Nazi answered defiantly, "we don't want a state anyhow," but rather "a national commu­ nity."23 At the same time, rapid submission within the univer22 "Personalien," Deutsche Juristen-Zeitung, Jg. 38, Heft 9 (May 1,1933), p. 613, Heft 10 (May 15, 1933), pp. 678-679. 23 Ernst von Salomon, The Answers (London, 1954), pp. 125-127.

THE NAZI EXPERIENCE, 1933-1947

sities accompanied the coercion, boycotts, and disruptions. Early in March hundreds of professors, with hundreds still to follow, displayed their support for the Nazis. By the end of April even the professorial association, the University League, had come to terms with the regime.24 Two of Schmitt's most promising students, now law professors, Ernst Rudolf Huber and Ernst Forsthoff7 had already ben­ efited from the university purges, replacing Professor Schiicking in Kiel and Hermann Heller in Frankfurt.25 Lit­ erally hundreds of thousands of Germans flocked to join the party, motivated by opportunism, fear, or in many cases enthusiasm. Reinforcing this trend were the pro-Nazi pronouncements of reputable intellectuals such as Martin Heidegger, who wrote to Schmitt on April 22,1933, inviting his collaboration.26 In this perplexing situation Schmitt faced a difficult choice. Since the Enabling Act he had pondered and discussed with friends the course of action he should take personally and as a professor of law. Emigration at this stage in his life would have caused as much uncertainty and hardship as the loss of his academic position. By 1932 he had reached the apex of his career; not many Germans with so much to lose willingly left their posts.27 To stay uncommitted within Germany involved the risk of dismissal with no defense against his incriminating political past; complicity appeared to be the safest option and one which, he be24 Karl Dietrich Bracher, "Die Gleichschaltung der deutsehen Universitat," in Nationalsozialismus und die deutsche Universitat (Berlin, 1966), p. 132. 25 "Personalien," Deutsche Juristen-Zeitung, Jg. 38, Heft 10 (May 15,1933), p. 679. 26 Martin Heidegger to Schmitt, April 22, 1933, Schmitt, Personal Pa­ pers. 27 On the reluctance of German civil servants to leave their positions, Arnold Brecht noted that "there were only relatively few, really voluntary, exceptions." See The Political Education of Arnold Brecht: An Autobiography, 1884-1970 (Princeton, 1970), pp. 434-435.

PART IV

lieved, held open the possibility of future work in consti­ tutional matters. On May 1 the highly respected former Kronjurist of the presidential system stood in a long line at the Nazi office in Cologne, awaiting his turn to join the NSDAP.28 His party number, 2,098,860, showed that since January almost a million Germans had entered the party before him.29 It was a public affirmation of loyalty to a regime he felt would tolerate nothing less than total allegiance, and an act by which he hoped to assure his personal and professional welfare. The Hobbesian relationship of protection and obe­ dience was an integral part of Schmitt's political philoso­ phy. Thus, he later explained, when the Weimar system could no longer protect him he felt justified in transferring his allegiance to the new regime so long as it granted him this protection.30 Shortly thereafter, he tied himself still closer to the policies of his new protectors by declaring the one-party state to be the state of the twentieth century and Gleichschaltung a step toward achieving the unity of the German people.31 Despite evident obstacles, Schmitt had been brought into the service of the Third Reich, whose leaders, concerned with consolidating their power, dis­ played an uncharacteristic tolerance. In order to attract such prestigious support for their cause, it seemed that the Nazis had openly accepted their former opponent into the fold, especially after the Cologne party organ, Westdeutscher Beobachter, published a long article lauding Schmitt as "the most renowned national constitutionalist in Germany."32 28

Tommissen, Over, p. 106. Personnel File Carl Schmitt, Party Records Gau Cologne-Aachen, and Nazi Party Records Central Munich, Document Center, Berlin-Dahlem. 30 Schmitt, Ex Captivitate Salus, pp. 20-21. 31 Carl Schmitt. "Das gute Recht der deutschen Revolution," Westdeutscher Beobachter, Jg. 9, No. 108 (May 12,1933), pp. 1-2, and "Der Staat des 20. Jahrhunderts," Westdeutscher Beobachter, Jg. 9, No. 151 (June 28, 1933), pp. 1-2. 32 "Der grosse nationale Staatsrechtslehrer Professor Dr. Carl Schmitt an die Kolner Universitat berufen," Westdeutscher Beobachter, Jg. 9, No. 107 (May 11, 1933), pp. 1-3. 29

THE NAZI EXPERIENCE, 1933-1947

The reconciliation appeared complete when Goring ap­ pointed Schmitt Prussian state councillor in early July. Schmitt owed this appointment to the influence of Popitz, who remained Prussian finance minister after Goring had taken control of Prussia on April 7. As a participant in Goring's reorganization of the Prussian State Council, Popitz saw to it that Schmitt, a close friend and conser­ vative ally, was chosen as one of the two representatives of academia on the new Council.33 Goring had reorganized the Council in an attempt to establish it as an advisory upper house which, though having no legislative power, would serve as a link between the government and other parts of society. Councillors like Schmitt and Popitz, how­ ever, thought that they could develop this institution as a conservative counterweight to absolute party control, in­ tending that the Council should serve as an arena for deal­ ing with actual administrative problems.34 This office also offered Schmitt the first opportunity to promote his theo­ retical formulations on law and politics in the Third Reich. With the office of Prussian state councillor and his as­ sociation with Goring, who enjoyed playing patron to art­ ists and intellectuals, Schmitt soon moved into other areas of Third Reich law. Nazi legal theoreticians had so far paid him little attention. Although he had received perhaps more publicity in legal journals than any other constitutionalist throughout the Weimar Republic, particularly during the crisis of 1932, the Nazi Deutsches Recht had never mentioned his name.35 Now Schmitt seemed to attain some distinction in Nazi legal institutions, accepting membership in the re­ cently organized Academy of German Law, serving on many 33 Sitzung des preussischen Staatsministeriums, Berlin, May 29, 1933, Preussisches Staatsministerium, Rep. 90, No. 13, pp. 247-251, Geheimes Staatsarchiv Preussiseher Kulturbesitz, Berlin. 34 Carl Schmitt, Beantwortung des Vorwurfs: Sie haben an der Vorbereitung des Angriffskrieges und der damit verbundenen Straftaten an entscheidender Stelle mitgewirkt, Nuremberg, April 28,1947, p. 4, Schmitt, Personal Papers. 35 Deutsches Recht, Monatsschrift des Bundes N-S Deutseher Juristen, ed. Hans Frank, Jg. 1-2 (1931-1932).

PART IV

of its committees, and delivering lectures at its major con­ ferences.36 In November 1933, he became director of the University Teachers Group of the National Socialist League of German Jurists. It appeared that Schmitt was establish­ ing himself as Kronjurist of the Third Reich, and his affilia­ tion with the National Socialist power structure enhanced the prestige he had acquired since 1932. He had recently been offered the chair of constitutional law at Heidelberg, and in July 1933 he received a similar offer from Munich, which he considered accepting. But the faculty and stu­ dents of Cologne urged Schmitt to refuse these appoint­ ments, the students declaring that he should remain their "intellectual leader."37 Obviously, the publicity Schmitt now received in the Nazi press had helped remove student sus­ picions about his commitment to National Socialism. In October 1933, he accepted the chair of public law at the University of Berlin; it was the most prestigious appoint­ ment of his career. Of course, much of this attention was the result of the university purges, which made it exceptionally difficult to fill vacancies with professors of any standing. Even his former adversaries, however, had the impression that he had acquired some influence with the Nazis. After con­ gratulating Schmitt on his appointment to the Prussian State Council, Arnold Brecht, who had opposed him in the trial Prussia vs. Reich, wrote to him: "The Ministry of State, in which there is now no one who knows me, is threatening me with temporary retirement by applying Section 4 of the Professional Civil Service Law. Could you as an old op36 Akademie fiir Deutsches Recht, Records of Nazi Cultural and Re­ search Institutes, U.S. National Archives, No. T-82, Roll 23, Serial 23, Reel 806. See also Hermann Weinkauff, Die deutsche Justiz und der Nationalsozialismus: Ein Uberblick, Teil 1 (Stuttgart, 1968), pp. 80-81. 37 Professor Nipperdey to Schmitt, May 29, 1933, Schmitt, Personal Papers; "Die Studentschaft an Professor Carl Schmitt," Kdlnisher Zeitung, No. 390 Ouly 21, 1933).

THE NAZI EXPERIENCE, 1933-1947

ponent say a word for me in this matter."38 Subsequent events showed that neither this outward appearance of official influence nor Schmitt's own expectations regarding his future role in Nazi legal affairs ever corresponded to his true position. Nevertheless, he continued his prodi­ gious work under the double illusion that he could exert at least some influence in legal affairs and at the same time remove suspicions about his loyalty. By this time any thoughts of establishing a traditional authoritarian state had disappeared with the loss of what­ ever political power the conservatives might have had at the beginning of the year. Schmitt had also completely lost faith in Hindenburg. By the end of 1933, Schmitt admitted publicly that the president had been relegated to the status of a figurehead "who reigns but does not govern," and he acknowledged that Hitler was now both de facto and de jure the political Fuhrer of the German nation.39 Such changes in Schmitfs attitude and writings were not due to any recently acquired sympathy for National Socialism, but re­ sulted from his recognition of the increasing domination the NSDAP exercised over German society. Faced with the realities of Nazi power, he attempted to make his ideas compatible with National Socialism, and at each subse­ quent phase in his Nazi career he made more and more concessions. Schmitt revised the new edition of Der Begriff des Politischen in an effort to make it acceptable to the Nazis. He eliminated his references to Karl Marx and the leftist theor­ ist Georg Lukdcs, and replaced words such as"association" with "Genossenschaft," the Nazi jargon for social relation­ ships, which has racial overtones.40 By the autumn of 1933, he had also gradually begun to pay lip service to Nazi views 38

Arnold Brecht to Schmitt, August 16,1933, Schmitt, Personal Papers. Carl Schmitt, Stoat, Bewegung, Volk: Die Dreigliederung der politischen Einheit (Hamburg, 1933), pp. 9-10. 40 See the 1933 edition of Der Begriff des Politischen published by Hanseatische Verlagsanstalt, Hamburg, pp. 27, 43-44. 39

PART IV

by inserting the odd anti-Semitic remark into his publica­ tions.41 But although he mentioned such terms as race and blood, he never succumbed to a belief in the biological racism of National Socialist ideology. He had always con­ sidered such ideas absurd. And according to Nazibiological criteria, his own wife, who was of Serbian descent, would be subject to exclusion from the planned national com­ munity of Aryans. These early references to race, irrelevant to the content of his work and artificially placed within the text, reveal his desire to show himself in tune with the new order. As an officeholder in a National Socialist legal or­ ganization he was, of course, expected to conform to the party line. By doing so he might also avoid embarrassing questions about his past close professional and personal involvements with Jews. But he never became an ideolog­ ical convert to Nazism. In a series of articles and lectures during the summer and fall of 1933, Schmitt had begun to develop the broad theoretical outlines of a constitutional structure for the Third Reich.42 Stoat, Bewegung, Volk (State, Movement, People), a pamphlet he published at the end of the year, contained a more coherent version of this scheme. Although Schmitt used Nazi institutions and meetings as a forum for these ideas, he had not drawn up this constitutional model at the request of the Nazis and his scheme was not embraced by party ideologues. Schmitt's model was actually an adap­ tation of the structure of the Prussian State Council. Where the Council was divided into three main areas—state sec­ retaries, party members, and representatives from the 41

See, for example, Schmitt, Staat, Bewegung, Volk, pp. 42-43, 45. Carl Schmitt, "Die Neugestaltung des offentlichen Recht," Jahrbuch der Akademiefir Deutsches Recht, Jg. 1 (1933/1934), pp. 63-64; "Der Neubau des Staates- und Verwaltungsrecht," Deutscher Juristentag 1933 (Berlin, 1933), pp. 242-252; "Die Bedeutung des neuen Staatsrates," Westdeutscher Beobaehter, Jg. 9, No. 169 Quly 16, 1933), p. 1; and "Die offentliche Verwaltung in neuen Reich," summarized in "Der Geist des neuen Staatsrecht," Deutsche Juristen-Zeitung, Jg. 38, Heft 14 (July 15, 1933), p. 959. 42

THE NAZI EXPERIENCE, 1933-1947

churches, economy, sciences, arts, and so on—his plan for the Third Reich consisted of the state (the bureaucracy and army), the party, and the people.43 Schmitt saw the state as the "static political part" endowed with administrative authority; the party would become the politically dynamic element leading the nation; and the people would consti­ tute the apolitical sphere of public life. He described each group as ". . . different, but not separate, united but not merged," for it would be the function of the party to pen­ etrate, lead, and unite the state and the people.44 The pivot was Hitler's status as both head of state and party leader under the "Law for Securing of the Unity of Party and State" of December 1, 1933.45 Schmitt emphasized, how­ ever, that the Fuhrer, as the ultimate political authority, must accept responsibility for all his actions. Moreover, at the foundation of the National Socialist concept of lead­ ership was the implicit sense of identity and equality be­ tween leader and led. Only such identity and equality could "... prevent the power of the Fuhrer from becoming tyr­ anny and caprice." Schmitt felt that the "continuous con­ tact," as well as the mutual trust, required by this rela­ tionship between the Fiihrer and the people could be maintained through occasional plebiscites.46 But the very notion of restraints on Hitler's actions, based on either a self-imposed sense of responsibility or expressions of pop­ ular sympathies through plebiscites, was nothing but wish­ ful thinking. Schmitt also assumed that once Hitler and the party had made political decisions, the state bureaucracies and the army would be allowed to fulfill their traditional roles with­ out continual interference by the party, an assumption which 43 Gesetz uber den Staatsrat. Vom 8. Juli 1933, Preussische Gesetzsammlung, No. 46 (July 10, 1933), pp. 241-243. Akten betreffend Preussischer Staatsrat (1921-1936), Reichskanzlei, R-43-I, 2300. 44 Schmitt, Stoat, Bewegung, Volk, pp. 11-12, 21. 45 Ibid., p. 20. 46 Ibid., p. 42; Schwab, Challenge, pp. 105-114.

PART IV

revealed Schmitt's conservative preferences and reluctance to surrender the German state apparatus entirely to the National Socialists. Two lectures delivered by Schmitt early in 1934, later published as Uber die drei Arten des rechtswissenschaftlichen Denkens (On the Three Types of Juristic Thought), indicated that he was still attempting to find a place within National Socialism for his traditional conser­ vative views.47 Schmitt deemed it essential that, in addition to the party, certain traditional institutions, the "concrete orders" (the family, churches, army, state bureaucracy, etc.), should serve as the basis for the new order of society.48 Although he saw the party as the unifier of the "concrete orders" and stated that the National Socialist spirit must pervade every institution, Schmitt still failed to realize that his recognition of Hitler as absolute sovereign meant that the party could intervene at any time in private life, in institutions, and at every point in society.49 Guarantees of stability were worthless, and it was a strange naivety in him to imagine that interference would be limited to times of crisis. For the Nazis would be satisfied with nothing less than totalitarian control and the unrestricted Nazification of all of German society. Schmitt was still underestimating the dynamism and revolutionary nature of the movement he was trying to serve and for which he was attempting to construct a legal framework. Signs of the disparity between Schmitt's view of his fu­ ture role and the actual significance the party attached to him were discernible quite early. While consolidating power, the party willingly accepted the support of such a public figure to enhance its credibility at home and abroad. He could scarcely be allowed, however, to occupy a central position, even among theorists. Schmitt would always re­ main a figurehead, whose reputation and ideas were used 47 Carl Schmitt, IIber die drei Arten des rechtswissenschaftlichen Denkens (Hamburg, 1934). 48 Ibid., pp. 42-44. 49 Ibid., p. 63.

THE NAZI EXPERIENCE, 1933-1947

or disregarded depending upon the needs of the moment, and whose talents were at the disposal of the party. At the very first session of the Prussian State Council on Septem­ ber 1, 1933, Schmitt's factual discussion of the nature and development of municipal self-administration in a National Socialist state was overshadowed by the ideological speech of Josef Terboven, the Gauleiter from Essen.50 Similarly, when the press office of the German Legal Front requested an article for Deutsches Recht on the first anniversary of Hitler's chancellorship, Schmitt politely declined on the ground of numerous previous commitments. The press of­ fice demanded the article, since his work within the party could not take second place to any other obligations.51 And it was duly published on January 25, 1933, indicating Schmitfs precarious status and the hollowness of his ti­ tles.52 By the time Schmitt had fully realized the implications, his name had become inextricably associated with the Nazi regime. But he was not yet able to assess his position ac­ curately, due to the misleading publicity about him, his association with prominent Nazis, and the fact that the party continued to grant him additional responsibility in Nazi legal affairs. The hostile attitude of other party mem­ bers toward Schmitt had not yet surfaced publicly. And announcements of his appointment to party offices were given front-page headlines in the Nazi press. Indeed, though they were never close, Goring himself had taken a personal liking to Schmitt. Most important, however, was the fact that Hans Frank had great respect for Schmitfs intellect 50 "Erste Arbeitstagung des Staatsrats," in Cuno Horkenbach, Das Deutsche Reich von 1918 bis Heute, 1933 (Berlin, 1935), p. 396. 51 Schmitt to Oberregierungsrat, January 13, 1934; and Press Office, Bund Nationalsozialistischer Deutscher Juristen to Reichsgeschaftsfuhrer Dr. Heuber, January 15, 1934, Personnel File Carl Schmitt (Sch 32), Nazi Party Records, Berlin Document Center. 52 Carl Schmitt, "Ein Jahr nationalsozialistischer Verfassungsstaat," Deutsches Recht, Jg. 4, No. 2 (January 25, 1934), pp. 27-30.

PART IV

and tried to open the way for his advancement. The two jurists became friends, and as late as June 1934 Frank ap­ pointed Schmitt editor of the leading law journal, Deutsche Juristen-Zeitung.53 But within a few weeks of receiving this new position, Schmitt suddenly had doubts about whether his party af­ filiations would actually guarantee his survival within the system. For the Night of the Long Knives of June 30, when SA leaders were executed without trial, showed that even party "old-fighters" could be quickly and brutally de­ voured by the dictatorship they had created. Hitler had ordered the purge in order to placate the army, which feared SA encroachments, and to prevent the emergence of the SA as a counterweight to his authority.54 The SAarmy controversy, like the dispute between Hitler and SA leader Rohm, had been building up to a climax since early in the year. Tensions had also been intensified when Papen, backed by Edgar Jung and the Catholic Action Group, sought HindenburgiS intervention against the regime. This rising antagonism came to a head in Papen's speech at the University of Marburg on June 17, criticizing party ex­ cesses. At the same time, various rumors spread about Schleicher's return to the political scene and about a pos­ sible Putsch by the SA. Thus, in addition to the 150 to 200 party members executed between June 30 and July 2, the purges extended to conservative circles as well. Schleicher, his wife, his associate General von Bredow, Edgar Jung, and two of Papen's aides were murdered, while Papen found himself under house arrest.55 Once again Hitler's penchant for legality led him to try to sanction these mur­ ders. A one-sentence law promulgated by his cabinet on July 3 read: "The measures taken on June 30, July 1 and 2 53 54 55

Deutsche Juristen-Zeitung, Jg. 39, Heft 11 (June 1, 1934), pp. 690-692. Craig, Germany, pp. 586-588; Bracher, Dictatorship, pp. 238-240. Wheeler-Bennett, Nemesis of Power, pp. 315-323.

THE NAZI EXPERIENCE, 1933-1947

to suppress treasonous assaults are legal as acts of selfdefense by the State."56 Schmitt's reaction was mixed. He viewed the SA purge as a necessary measure to preserve the army as a "concrete order" and to prevent it from being merged with the party.57 He had always maintained close contact with officers and considered the army a central pillar of the German state, hoping that it would play a greater role in the Third Reich.58 The purges also annihilated the radical left wing of the NSDAP, feared by so many conservatives, and eliminated the possibility of civil war. But he was alarmed by the murder of the conservatives. Particularly shocked by the killing of Schleicher, Schmitt feared for his own life. As a conservative Catholic who had worked closely with Schleicher and was still in contact with Schleicher's former aide, Colonel Marcks, Schmitt was no unlikely target if the purges had continued.59 The fact that several months later Schmitf s name would be mentioned during a dispute be­ tween the party and the army indicated that his relation­ ship with army officers had raised suspicions about his party loyalty. For in January 1935, Himmler would incor­ rectly allege that Schmitt had been invited by General von Fritsch to deliver a lecture to a group of officers providing 56

Fest, Hitler, p. 468. s concept of "concrete orders" was directly related to many of the points Papen stressed in his Marburg speech, composed by the conservative intellectual Edgar Jung. Criticizing the notion of a "second revolution" and the uncontrolled dynamism of the party which threatened the security of the private sphere of life, religious freedom, and rule by law, Papen urged a return to the past, where Germany had known a firm social structure and uncontested state authority. The difference between these conservatives and Schmitt was, as noted above, that the latter had granted such a pervasive role to Hitler and the party that a system which would guarantee the integrity of the "concrete orders" and the private sphere of life had already been precluded. Klemperer, Conservatism, pp. 210-211; Struve, Elites, pp. 351-352. 58 See Carl Schmitt, Staatsgefiige und Zusammertbruch des zweiten Retches: Der Sieg des Biirgers iiber den Soldaten (Hamburg, 1934). 59 Erich Marcks to Schmitt, June 9, 1934, Schmitt, Personal Papers. 57 Schmitf

PART IV

the legal justifications for a Putsch by the army.60 Thus, though Schmitt remained unaware of this later incident and much of his anxiety during the purges can be attributed to his own basic insecurity, his concerns were not entirely unfounded. For a short while, Schmitt actually considered himself in danger and for the rest of his life he believed that only the intervention of Goring, who directed the purges in Berlin, saved him. As a party jurist, Schmitt was expected to accept without question both the official explanations for the purge and the legality of the law of July 3. Like the army, Schmitt was willing to acknowledge that the SA purge was a necessary emergency measure; even the retroactive legalization did not present an insurmountable problem for him. Yet, de­ spite all the compromises he had made to secure himself within the dictatorship, he still could not bring himself to condone the murder of his friend Schleicher and other conservatives.At first, it appeared that he would not have to betray his true feelings in order once again to submit to the demands of the party, because immediately after the purge Hitler tried to hush up the affair.61 But shortly there­ after, when Hitler felt compelled to justify his actions pub­ licly in a Reichstag speech scheduled for July 13, the entire party was expected to come to his defense and Schmitt was forced to ponder a possible response. It is unknown whether Schmitt was actually requested to publish a juridical exposition substantiating Hitler's claims concerning the legality of his recent actions. But at least indirect pressures existed, for the party was engaged in a campaign to convince the public that the emergency meas­ ures were both justifiable and legal. The party was partic­ ularly disturbed by the incredulous reaction of the foreign 60 Friedrich Hossbach, Zwischen Wehrmacht und Hitler, 1934-1938 (Gottingen, 1965), pp. 60-61; Hermann Foertsch, Schuld und Verhangnis: Die

Fritsch-Krise im Friihjahr 1938 als Wendepunkt in der Gesehichte der nationalsozialistisehen Zeit (Stuttgart, 1951), pp. 146-149. 61 Fest, Hitler, p. 468.

THE NAZI EXPERIENCE, 1933-1947

press to the ex post facto attempt at legalizing the purges. On July 9 Schmitt received two party memoranda stating that the French press had declared the law of July 3 nothing but a "retroactive exoneration" (Indemnitat) of Hitler granted by the Nazi minister of justice.62 The article in question had cited a Vatican statement that the executions without trial constituted murder. Three days later Goring, in a long ad­ dress to the lawyers of the Prussian justice ministry, pro­ claimed that the primary law is the welfare of the people and that by acting decisively Hitler had freed Germany from an enormous danger.63 He also told these jurists that it was their obligation, as guardians of the law, to defend the Fuhrer and the state against unwarranted attacks, and be issued a warning to those bureaucrats who failed to fulfill their duty under National Socialism.64 In his selfjustifying Reichstag speech the following day, Hitler said that in the hour of danger he was responsible for the fate of the German nation and therefore at that point he became the supreme judge.65 Schmitt followed these public statements with intense interest. Carefully analyzing the speeches of Goring and Hitler printed in the Volkische Beobachter, Schmitt found that he could satisfy party expectations by justifying the legality of the purges without sanctioning the murders of those unassociated with the SA.66 For though the Ftihrer had ac­ cused Schleicher of complicity in Rohm's treason, both Hit­ ler and Goring admitted that unauthorized violent acts had been committed outside the scope of the emergency and promised that the perpetrators would be punished. Schmitt 62 Party memoranda addressed to Schmitt, July 9, 1934, Schmitt, Per­ sonal Papers. 63 "Das Recht und der Wille des Ftihrers sind eins," Volkischer Beobachter, Jg. 47 Ouly 13, 1934), p. 1. 64 Ibid. 65 Fest, Hitler, pp. 468-471. 66 Schmitt's personal papers contain the July 13 and 14, 1934 editions of the Volkischer Beobachter, with the important passages from the speeches by Gdring and Hitler underlined.

PART IV

believed that the SA purges were necessary, but he did not believe that Schleicher had been involved in any conspir­ acy; yet Schmitt could not risk party disfavor by challenging the word of the Fuhrer. Therefore, a few weeks later when he published "The Fuhrer Protects the Law," a short article on the legality of Hitler's actions, Schmitt never mentioned Schleicher's name.67 Instead, in guarded and skillfully worded statements he took exception to the allegedly un­ authorized murders and urged that those responsible be brought to justice. With Goring's warning about uncooperative jurists in mind, Schmitt defended Hitler against the charges of "ret­ roactive exoneration" made in the foreign press. "In reality the deed of the Fuhrer was within his legitimate jurisdic­ tion," Schmitt wrote, and thus no exoneration (Indemnitat) was required.68 He asserted that the Fuhrer had the right, in moments of extreme danger to the nation, to act as the supreme judge, distinguish friend from enemy, and take appropriate measures.69 But still hoping that law had not yet degenerated into caprice or the whims of Hitler and the party, Schmitt stated that Hitler's right to act as su­ preme judge was limited to an exceptional emergency sit­ uation; the normal system of justice was immediately rein­ stated once the danger was removed.70 This was evident, Schmitt noted, in the law of July 3, which described the temporary nature and the precise limits of the emergency measures of the Fiihrer. Furthermore, in a veiled reference to the murder of his friend and others, Schmitt emphasized that the "unauthorized actions" (Sonderaktionen), which went beyond the scope of the emergency, were not only illegal, 67 Carl Schmitt, "Der Fiihrer schutzt das Recht," Positionen und Begriff, pp. 199-203. This article was originally published in Deutsche JuristenZeitung, Jg. 39, Heft 15 (August 1, 1934), pp. 945-950. 68 Ibid., p. 200. 69 Ibid., p. 203. 70 Ibid., p. 202.

THE NAZI EXPERIENCE, 1933-1947

but grave violations of justice itself.71 He cited the state­ ments by Goring and Reich Minister of Justice Giirtner that the expeditious prosecution of the perpetrators had been ordered. "The higher and more absolute the law of the Filhrer," Schmitt declared, "so much greater are these acts of injustice."72 That someone as cautious and insecure as Schmitt would even raise the question of justice for innocent victims re­ veals the extent to which he had been shaken by the blood purge. Initially the experience had forced him to reevaluate his position in the Third Reich. But the rapid termination of the emergency situation and the apparent return of nor­ mality gave him a false sense of security. Thus, after con­ sidering the possible alternatives of emigration, withdrawal from public life, or further attempts to entrench himself within the Third Reich, he chose the latter course. Even had he managed to emigrate, his name was by this time too closely connected with the Nazi dictatorship to enable him to build a satisfactory future abroad. By compromising himself for the sake of protection, self-aggrandizement, and public attention, he had set himself up as the enemy of the emigres. Indeed, shortly after joining the party, he wrote that the exiled intellectuals who criticized Germany had never belonged to the German nation.73 Equally sig­ nificant, despite his precarious position, Schmitt still prof­ ited by the Third Reich. His status as Prussian state coun­ cillor, professor in Berlin, and director of the National Socialist University Teachers Group played upon his vanity and sense of importance. Having survived the recent purges, and believing himself to be under Gdring's protection, he was reluctant to tamper with his apparent achievements within the new system. After publication of "The FUhrer Protects the Law," it appeared that the former opponent " Ibid. ™ Ibid. 73 Carl

Schmitt, "Die deutschen lntellektuellen," Wesideutscher Beobach-

ter, Jg. 9, No. 126 (May 31, 1933), pp. 1-2.

PART IV

of the Nazis had become an apologist for a murderous party dictatorship. Though Schmitt condoned only the actions against the SA and took exception to the other murders, his article would be remembered merely as a vindication of the hideous deeds of the Hitler regime.74 Thereafter, he would find it increasingly difficult to extricate himself from his Nazi entanglements. 74

Craig, Germany, p. 642; Bracher, Dictatorship, p. 241.

ELEVEN

THE PURGE OF AN IDEOLOGICAL DEVIANT

CONTRARY to Schmitt's expectations, the SA purges had not tempered the more radical elements within the party, but rather had opened the way for a more extreme group, the SS, to emerge gradually as the most powerful party institution. Along with the increasing power of the SS, there also developed a more intensified effort at ideological purification. For some time, there had been a growing con­ cern among the party old guard that the tremendous influx of new members since the seizure of power threatened the purity of the movement. The older members were partic­ ularly sensitive about those writers whose interpretations of National Socialism tended to dilute the ideology with middle-class and conservative ideas regarding state and society. A reaction against the newcomers and their ver­ sions of National Socialism had started in 1934, and picked up momentum in the aftermath of the purges.1 The pres­ sure for ideological conformity greatly increased over the next two years as the SS, which had taken over the Prussian Gestapo in April 1934, made a determined effort to expose and root out ideological deviants and opportunists. The SS was preoccupied with the volkisch aspect of the ideology, which had as its foundation a crude form of biological rac­ ism. Any interpretation of politics, society, culture, or even science that did not start from this racial premise, or that neglected the primary racial enemy (i.e., the Jews), was suspect. And Schmitt soon discovered that his attempts at adjusting his ideas to suit the needs of National Socialism 1 Bracher, Dictatorship, pp. 247-248, 258; Klemperer, Conservatism, p. 213.

PART IV

fell far short of the type of commitment demanded by the party ideologues. Instead of convincing the party of his ideological conversion, his recent writings had revealed the discrepancies between his ideas and the Nazi racial ide­ ology. Likewise, his status as a "March violet," a late-comer to the cause, aroused suspicion and envy among the party's "old fighters."2 Many were angered by the fact that a new arrival received so much attention and tried to play the role of Kronjurist. The Nazis had their own plans for institu­ tionalizing their ideology, and resented interference by theorizing intellectuals, particularly if they threatened to overshadow the second-rate ideas of established party members. Publicity and titles notwithstanding, Schmitt had ac­ quired neither great influence nor popularity within the party. Apart from his association with Goring and Hans Frank, the Nazi upper echelons were closed to him, a fact born out by the SS and Academy of German Law files.3 He had no contact with Goebbels, Hess, Himmler, or Alfred Rosenberg; and because Hitler despised intellectuals, Frank had warned Schmitt to avoid any possible contact with the Fiihrer* "Besides, what would I say to him?" Schmitt later said in jest. "I would have to sit him in a chair and deliver a lecture." Goring patronized Schmitt as a prominent jurist and member of the Prussian State Council, in the same way that he patronized certain artists. But though this re­ lationship was crucial for Schmitt's survival in the Third Reich, it never provided him with the opportunity to exert 2 On the reaction of established party members to the newcomers see Richard Grunberger, The 12-year Reich: A Social History of Nazi Germany, 1933-1945 (New York, 1972), pp. 62-63. 3 Akademie fiir Deutsches Recht, Reichskanzlei (1933-1945), R-43-II, 1509; Schmitt File, Sicherheitsdienst des RFSS SD Hauptamt (1936), PA 651C, Wiener Library, London, copies in Institut fiir Zeitgeschichte, Mu­ nich, AKZ 4062/68, Fa 503, Nos. 1-2. 4 Carl Schmitt, Beantwortung der Frage: Wieweit haben Sie die theoretische Untermauerung der Hitlerschen Grossraumpolitik gefordert? Nu­ remberg, April 18, 1947, p. 2, Schmitt, Personal Papers.

THE NAZI EXPERIENCE, 1933-1947

influence. Schmitfs plans for the Prussian State Council were illusory, since the party never intended to grant it any real significance, and it soon became merely a show­ piece for Goring. Furthermore, within Nazi legal organi­ zations, Schmitt fared little better, since his standing among party jurists rested mostly on Frank's recognition of his talents.5 In these circles, such well-established National So­ cialists as Frank and Werner Best dominated the scene. Frank was indeed obliged to defend Schmitt against party members who saw him as an opportunist of dubious ide­ ological sincerity and political reliability. From the beginning, the tripartite constitutional scheme for the Third Reich Schmitt had presented in Stoat, Bewegung, Voik, had led to difficulties with Nazi theorists. By opposing the merger of party and state, he had antagonized party members who intended to infiltrate the state appa­ ratus and reduce it to a mere instrument of the party. Un­ like Schmitt and other conservatives, theorists such as Ro­ senberg were unwilling to grant the state any significance in itself, fearing that the concept of the state might even­ tually predominate over that of the movement.6 Moreover, Schmitt had relegated the people to an apolitical role "in the protection and shadows of political decisions,"7 whereas the Nazis idolized the people as the Urkraft of political life.8 Hitler himself stressed, "The Volk is primary. Party, state, 5 Schmitt,

Beantwortung des Vorwurfs, pp. 4-5. Alfred Rosenberg, "Totaler Staat," Volhscher Beobachter (January 9, 1934), in Alfred Rosenberg: Selected Writings, ed. Robert Pois (London, 1970), pp. 191-192. 1 Schmitt, Staat, Bewegung, Volk, p. 12. 8 According to the Nazi legal theorist Gottfried Neesse, the VoJfc is no separate order outside the party and state, but the Urgrund of these two organizations. Giinther Krauss, "Staat, Bewegung, Volk als selbstandige Ordnungen. Bemerkungen zu einem neuen Buch von Gottfried Neesse," Deutsche Juristen-Zeitung, Jg. 41, Heft 10 (May 15, 1936), pp. 620-624. See also Hans Fabricius, Bewegung, Staat, und Volk in ihren Organisationen (Ber­ lin, 1935), passim; Eugen Schmahl, Der Aufotieg der Nationalen Idee (Stutt­ gart, 1933), especially pp. 193-195; and Neumann, Behemoth, pp. 65-66. 6

PART IV

army, economy, law, etc. are secondary manifestations and methods for the purpose of preserving this Volk."9 To con­ vinced Nazis, Schmitf s theories appeared unvolkisch, neg­ lecting the fundamental biological foundations of politics.10 The first public attack on Schmitt's theories came from the Munich law professor Otto Koellreutter, one of the leading advocates of a racially based political theory. Writ­ ing to the editors of the Junge Front in February 1934, Koell­ reutter accused "Schmitt and his school" of trying to force National Socialism into a Neo-Hegelian framework.11 Koell­ reutter carried his assault further in a lecture to the KantGesellschaft at the University of Halle, where he charged that Schmitfs political philosophy stood in opposition to the National Socialist concept of Volksgemeinschaft (racial community).12 According to Koellreutter, Schmitt was a typical Neo-Hegelian who viewed the state as the sole au­ thority to whom one had a political obligation. Even Schmitfs friend-enemy thesis had the state as its focal point, neg­ lecting the fact that the basis of all Nazi politics was the biological unity of the people.13 In another lecture, Koell­ reutter charged Schmitt with spreading erroneous ideas about the relationship between the people and the Fuhrer. The FUhrer, Koellreutter said, does not, as the Neo-Hegelians contend, view the people merely as the object of his activity. The Fuhrer is one who lives with the people, shares the feelings of the people, and struggles for the people; that is the correct definition of "volkische leadership," not 9 "Die Grundlagen unseres Verfassungs- und Rechtslebens: Aus der Reichstagsrede des Fiihrers und Reichskanzlers vom 30. Januar 1937," Zeitschrift der Akademiefir Deutsches Recht, Jg. 4, Heft 4 (February 13,1937), p. 97. 10 Otto Koellreutter, Volk und Stmt in der Weltanschauung des Nationalsozialismus (Berlin, 1935), pp. 6-11. 11 Koellreutter to editors of Junge Front, February 5, 1934, Gurian, Per­ sonal Papers. 12 Koellreutter, Volk und Stoat, pp. 8-9, 19. 13 Ibid., p. 6.

THE NAZI EXPERIENCE, 1933-1947

"the flashy and hazy explanations of Carl Schmitt."14 For the next several years, Koellreutter kept up his relentless attacks in lectures and publications, arguing that Schmitt had contributed nothing substantial to National Socialist thought, and in fact had done the movement a great dis­ service.15 Aside from these ideological rebukes, Koellreutter was engaged in a private campaign to rally other party members against Schmitt. He found that anti-Schmittian sentiments were widespread and that privately at least various party members expressed disapproval of Schmitt; criticism was especially strong among those who considered Schmitt an opportunist.16 Schmitt's past association with Jews and the presidential government, which he hoped had been for­ gotten, was openly discussed in certain party circles. Before the SA purges, Schmitt's position and his connections with Goring and Frank had discouraged subordinate officials from challenging him.17 But by autumn 1934 the reckoning appeared nearer as rumors circulated that Schmitt would shortly be removed from his party offices and that Rosen­ berg himself had doubts about his "ideological side."18 What gave credence to the rumors of Schmitt's imminent downfall was not the existence of party intrigues, but the public scrutiny of his past in the emigre press. Those emigres who had formerly been close friends, colleagues, and stu­ dents of Schmitt viewed his collaboration as treacherous opportunism; they were disgusted by the very thought that such a brilliant mind had become the handmaiden of Na14

Otto Koellreutter, Der Deutsche Fiihrerstaat (Tubingen, 1934), p. 16. Otto Koellreutter, Deutsches Verfassungsrecht: Ein Grundriss (Berlin, 1938), pp. 3-4, 26. This book was originally published in 1935. 16 Bornhack to Koellreutter, April 22 and June 1,1934; Heckel to Koell­ reutter, October 6,1934, Sicherheitsdienst, pp. 7-8, 11. 17 Gerland to Koellreutter, June 16, 1934, ibid., p. 10. 18 Sehwinge to Koellreutter, September 10,1934, ibid., p. 6; StaffDireetor in Rosenberg's office toProfessor Wirz in NSDAP Hochschulkommission, September 20, 1934, Gemeinschaft studentischer Verbande, MA-1163, NSDAP (IV, 24), 95620-95622, Institut fur Zeitgeschichte, Munich. 15

PART IV

tional Socialism. Most disappointed and most embittered of all was Waldemar Gurian, who had fled with his family to Switzerland in mid-July 1934. Because of his previous near-worship of Schmitt, Gurian was emotionally shattered by the jurist's collaboration.19 Schmitt's behavior had re­ vealed a moral defect that Gurian could not forgive. If someone with Schmitfs intelligence had succumbed, he felt, there was little hope for the rest. For Gurian, Schmitt personified the lack of courage and the moral failings of the German elite that allowed for the Nazi success. Gurian was not merely morally outraged, but deeply hurt as well. With each passing month, he became obsessed with Schmitt, searching for every piece of information with which to ex­ pose and discredit him in the eyes of the Nazis.20 On October 1, 1934, under the pseudonym Paul Miiller, Gurian published an article in the Schweizerischen Rundschau detailing the changes in Schmitt's political ideas and alle­ giances that had brought him from political Catholicism to National Socialism.21 Gurian confirmed in the most explicit terms all the Nazi counts against Schmitt. Noting how "for­ getful are contemporaries," Gurian reminded his readers that Schmitt began his career with the assistance of nonAryan liberals such as Moritz Julius Bonn, that he had Jewish friends and admired Jewish scholars such as Hugo Preuss, that he had been a major exponent of political Ca­ tholicism, and still was a Roman Catholic.22 More damaging was the public disclosure of Schmitt's affiliation with the presidential system and his former opposition to National Socialism, which he had once called "organized mass in­ sanity." Referring to what he now saw as the essence of Schmitf s thought, Gurian concluded, "Who rules is right, 19 Gurian

interviews. Otto Knab to Author, December 21, 1976. 21 Paul Miiller (Waldemar Gurian), "Entscheidung und Ordnung: Zu den Schriften von Carl Schmitt," Schweizerische Rundschau, No. 34 (1934/ 1935), pp. 566-576. 22 Ibid., p. 567. 20

THE NAZI EXPERIENCE, 1933-1947

and therefore Carl Schmitt is today the National Socialist Kronjurist, because National Socialism is the current Ger­ man reality."23 Meanwhile, Gurian and another emigre journalist, Otto Knab, had founded Deutsche Briefe, a major resistance jour­ nal for Catholic emigres.24 Gurian used this new journal to publish a version of his earlier article, which now had the title "Carl Schmitt, Kronjurist of the Third Reich." Taunting the Nazis for their credulity, he said that Schmitt could never be a true National Socialist and that it was obvious that he was using the party for personal ends.25 And for the next two years, such exposures, along with continual ridicule of the party for tolerating Schmitt, filled the pages of Deutsche Briefe, with no other figure so vehemently at­ tacked or so morally defamed as Schmitt.26 Koellreutter assumed that these revelations were suffi­ cient grounds to have Schmitt drummed out of the party. He circulated copies of Gurian's articles to party friends along with a draft letter to Hans Frank requesting Schmitt's removal.27 He soon learned, however, that Schmitt's critics were still reluctant to raise the question with Frank at this time.28 Upon their advice, he did not contact Frank and did not force the issue further, though he kept up his own ideological attacks in lectures and publications. Hopes, reinforced by rumors, of Schmitf s downfall were prema­ ture. The aspiring Kronjurist seemed to be securely under Frank's wing. For the next two years Frank continued to favor Schmitt, calling upon him to serve as chairman of 23

Ibid., p. 576. Heinz Hiirten, ed., Deutsche Briefe: Ein Blatt der Katholischen Emigration, I, 1934-1935, Π, 1936-1938 (Mainz, 1969), xxxvii-xlii, and Gurian, pp. 9924

101. 25 "Carl Schmitt, Oer Kronjurist des III. Reiches," Deutsche Briefe (Oc­ tober 26, 1934), I, pp. 52-54. 26 Hiirten, Gurian, p. 13. 27 Koellreutter to Mirow, November 1, 1934; Becker to Koellreutter, November 15, 1934, Sicherheitsdienst, pp. 8, 16-18. 28 Heckel to Koellreutter, October 6, 1934, ibid., p. 11.

PART IV

various committees and to deliver lectures to the German Legal Front and the Academy of German Law.29 Schmitt was even allowed to represent National Socialist legal or­ ganizations abroad, where he lectured on such topics as the Filhrer state.30 But despite Frank's patronage, the disclosures about Schmitt's past which appeared repeatedly in Deutsche Briefe revived the fears he had suffered during the purges. His insecurity increased as he watched the party ideologues publicly chastise another conservative who had tried to accommodate himself to National Socialism after 1933. For in the spring of 1935, Wilhelm Stapel was subjected to vicious rebukes in the SS mouthpiece Das Schwarze Korps, and Gurian made a special effort to remind his readers that Schmitt had been a member of the Stapel circle.31 The ed­ itors of Das Schwarze Korps went to extremes to establish themselves as the guardians of ideological purity and to vilify nonconformists; their favorite targets were oppor­ tunistic conservatives, the churches, and the Jews.32 This pressure eventually forced Stapel to resign as editor of Deutsches Volkstum by 1938. The demands for total intel­ lectual Gleichschaltung even extended into the natural sci­ ences, where the advocates of a type of "German physics" accused other scientists of teaching "Jewish physics." Start­ ing in 1935, Nobel prize winner Werner Heisenberg was 29 "Aus der Deutschen Rechtsfront," Deutsche Juristen-Zeitung, Jg. 40, Heft 9 (May 1, 1935), p. 557; Heft 20 (October 15, 1935), pp. 1233-1234; Heft 23 (December 1, 1935), p. 1425; Jg. 41, Heft 4 (February 15, 1936), pp. 245-246. "Vermischtes," Deutsche Juristen-Zeitung, Jg. 40, Heft 14 (July 15,1935), p. 877; Heft 24 (December 15,1935), pp. 1492-1493. "Carl Schmitt Vorsitzender des Ausschusses fur Strafverfahrensrecht," Berliner Tageblatt, No. 327 Quly 12, 1936). 30 "Rechtswissenschaftliche Vortrage in Holland," Deutsche Juristen-Zeitutig, Jg. 40, Heft 7 (April 1, 1935), p. 424. 31 "Deutsche Woche," Deutsche Briefe (July 19, 1935), I, pp. 465-466; Klemperer, Conservatism, p. 204. 32 Heinz Hohne, The Order of the Death's Head: The Story of Hitler's SS (New York, 1971), pp. 249-251.

THE NAZI EXPERIENCE, 1933-1947

charged with perpetuating Jewish influence in German in­ tellectual life; this could clearly be seen, his accusers claimed, in his use of Einstein's concepts and in his past close per­ sonal and intellectual association with Jews. The charges against Heisenberg were serious enough to warrant cov­ erage in the Volkischer Beobachter, but the most vehement attacks came later in a diatribe in Das Schwarze Korps, la­ beling the physicist a "White Jew" who must vanish like the Jews.33 Thus, although party opponents still believed Schmitt's position was unassailable, his own basic inse­ curity led him to conclude that the SS offensive against intellectuals was an ominous sign for someone with his compromising past. Thereafter, Schmitt made a deter­ mined attempt to appear as an unwavering National So­ cialist. Schmitt felt especially vulnerable to charges that he had associated with Jews and that his writing lacked a racial orientation. These points received special attention in Deutsche Briefe and in KoellreutterrS critiques. To protect himself, Schmitt began to make additional intellectual and moral compromises, this time on the Jewish question. The heightened anti-Semitism in his writings after 1934 indi­ cated the extent to which he was willing to taint his rep­ utation in order to appease the National Socialists. Such obvious opportunistic compromises appear all the more despicable when it is remembered that before he joined the NSDAP there was not the slightest anti-Semitic note in any of his writings or personal relationships. In addition to his intimate friendship with Moritz Julius Bonn through­ out the Weimar era, Schmitt had dedicated his Verfassungslehre to Fritz Eisler, a Jew who had died in the First World War, and he had published a book in praise of Hugo Preuss. Until this point, Schmitt's concessions to Nazi anti-Semi­ tism only consisted of a few remarks inserted here and 33 Armin Hermann, Werner Heisenberg, 1901-1976 (Bonn-Bad Godesberg, 1976), pp. 54-62.

PART IV

there in his works.34 But as his position in Nazi circles became increasingly doubtful, he became more vociferous in his anti-Semitism. This latest attempt to secure himself within the Third Reich was the culmination of a series of compromises he had made over a period of years, each of which brought him further into the jaws of the Nazi levi­ athan. He had moved from opposition at the start of 1933 to a defense of the Fiihrer as supreme judge less than two years later. Now he found himself articulating ideas about race and the Jews which he thought were truly absurd. In September 1935, the passage of the Nuremberg Laws not only revoked the citizenship rights of Jews, but also legalized the biological-racial anti-Semitism of the Nazis. Thereafter, race was no longer merely an ideological con­ cept but a formal legal category.35 Within a few weeks, Schmitt did what the party expected and publicly defended these laws. Like so many Germans after World War II, Schmitt would claim that he was only obeying the legally constituted authority. No doubt at the time he tried to convince himself that he was obligated to obey and that as a jurist he was also compelled to work within the confines of these laws. He could easily rationalize his behavior with the same Hobbesian precepts he had used to explain his previous compromises. For he always adhered to the prin­ ciple Autoritas, non Veritas facit legem (authority, not virtue makes the law), and he never tired of repeating that phrase. Authority was in the hands of the Nazis, their racial ide­ ology became law, and he was bound by these laws. His own writings on the Jewish question reveal, however, that his response was determined not only by obedience to the law, or his status as a jurist, but by his personal predica34 See, for example, Carl Schmitt, "Nationalsozialistisches Rechtsdenken," Deutsches Recht, Jg. 4, No. 10 (May 25, 1934), p. 226. See also the discussion of Schmitt and the Jewish question in Schwab, Challenge, pp. 133-138 35 Lucy S. Dawidowicz, The WarAgainst the Jews, 1933-1945 (New York, 1978), p. 84; Bracher, Dictatorship, p. 253.

THE NAZI EXPERIENCE, 1933-1947

ment. For he was always conscious of the criticism that he was neither an anti-Semite nor a racist. Therefore, when expounding upon the Nuremberg Laws, Schmitt went far beyond a purely juridical analysis and began to enunciate those Nazi racial concepts which provided the justification for the newly enacted laws.36 Using racial terminology and concepts that were completely antithetical to his previous legal and political thought, he wrote, "the racial legislation in particular provides for the protection and the purity of volkisch blood."37 He even went so far as to declare the Nuremberg Laws "the constitution of freedom."38 Although Schmitt was now promoting the volkisch thoughts of the Nazis, he discovered that his opponents still remained unconvinced about his ideological conver­ sion. Gurian kept up the pressure from abroad, never over­ looking a single opportunity to point out the discrepancies between Schmitt's earlier friendships with Jews and his recent anti-Semitic writings. Schmitt retained his profes­ sional positions in the Third Reich, Gurian stated, only by greater and greater indignities, such as his recent apology for the Nuremberg Laws.39 More important, Schmitt soon learned that questions concerning his conservative sym­ pathies vis-a-vis his allegiance to National Socialism had stirred up a controversy within the party. 36 Carl Schmitt, "CKe nationalsozialistische Gesetzgebung und der Vorbehalt des 'ordre public' im Internationalen Privatrecht," Zeitschrift der Akademie fir Deutsches Recht, Jg. 3, Heft 4 (February 20, 1936), pp. 204205. This article was originally a lecture delivered at a conference of the International Law Association in Berlin on November 28, 1935. 37 Ibid., p. 208. 38 Carl Schmitt, "Die Verfassung der Freiheit," Deutsche Juristen-Zeitung, Jg. 40, Heft 19 (October 1, 1935), pp. 1133-1135. 39 "Carl Schmitt schafft den Menschen ab" (December 13, 1935); "Ein Bolschewistenfreund als Nationalsozialistischer Kronjurist" (March 13, 1936); "Der NS Kronjurist Carl Schmitt iiber das Plebiszit" (April 3,1936); "Carl Schmitt gegen Carl Schmitt" (May 22, 1936); "Der Fall Eschweiler, Das Opfer Carl Schmitts" (June 19, 1936); "Staatsrat Carl Schmitt" (Oc­ tober 9, 1936); Deutsche Briefe, I, pp. 1133-1135, II, pp. 107, 130, 204-205, 240, 405-406.

PART IV

Another ambitious Nazi jurist, Professor Karl August Eckhardt, wrote to Schmitt in January 1936 accusing him of forming a "reactionary clique" of conservatives in Nazi legal organizations.40 Eckhardt informed Schmitt that he had asked Hans Frank to prevent these individuals from receiving key appointments and to stop publication of their articles. Irritated and worried, Schmitt's only response was a curt note stating, "you should do what you consider right, just as I will do what I consider right."41 Whereupon Eckhardt, in a detailed letter, complained directly to Dr. Raeke, Reich inspector of the Nazi League of German Ju­ rists. While they were colleagues at the Handelshochschule between 1930 and 1932, Eckhardt explained, Schmitt had worked with Briining and Papen and only after the Nazi victory tried to transform himself into a National Socialist. He described Schmitt as essentially an opportunist who could serve as "Kronjurist" under any regime. Indeed, Schmitt had told him in 1932 that Hitler would be finished within half a year.42 In a second letter to Frank, Eckhardt repeated his charges that Schmitt was favoring a group of reactionaries who stood in opposition to the new type of legal thought the true National Socialists were trying to develop.43 Raeke's intervention led to a private meeting among Frank, Eckhardt, and Schmitt, and Frank was able to contain the dispute.44 But later in February Schmitt received yet another re­ buke, this time in a public forum. When he tried to deliver an informal, rather disorganized lecture on Walter Jellinek and Jewish influence in German legal thought to a group of Nazi law students, a hostile audience immediately raised questions about the influence of political Catholicism. Sur­ prised, and realizing that he personally was the object of this attack, Schmitt denied any such influence. Nonethe40

Eckhardt to Schmitt, January 18, 1936, Schmitt, Personal Papers. to Eckhardt, January 20, 1936, Schmitt, Personal Papers. 42 Eckhardt to Raeke, January 24, 1936, Schmitt, Personal Papers. 43 Eckhardt to Frank, February 3, 1936, Schmitt, Personal Papers. 44 Raeke to Schmitt, January 28, 1936, Schmitt, Personal Papers. 41 Schmitt

THE NAZI EXPERIENCE, 1933-1947

less, the discussion quickly degenerated into a confronta­ tion when a student charged that in his Stmt, Bewegung, Volk, Schmitt had distorted the relationship between the movement and the people. After retorting that his work had the support of party leaders Hans Frank and Wilhelm Frick, Schmitt abruptly terminated the lecture for "tech­ nical reasons."45 Schmitt could no longer avoid the fact that he faced widespread opposition and that his position within the party was deteriorating. Throughout the spring of 1936, Schmitt intensified his efforts to counteract criticism that he was a reactionary preoccupied with the concept of the state, and that he had not taken the racial question seriously. In his lectures and writings, he made a point of emphasizing that both the racial concept and the primacy of the party over the state were fundamental principles of National Socialist law.46 "The Fuhrer is not an agent of the state," he now wrote, "but the highest judge of the nation and the highest lawgiver."47 The state was merely a means for the reali­ zation of the National Socialist ideology, and the program of the NSDAP was the most important source of all for legal theorists.48 The primary goal for German jurispru­ dence, Schmitt asserted, was the development of a truly Germanic and National Socialist legal order.49 In pursuit of this goal, Schmitt announced in May that his Teachers Group would hold a conference in the fall to examine the problem of Jewish influence in German legal thought.50 Although Schmitt had launched this anti-Semitic offen45 Sicherheitsdienst,

pp. 22-24. Carl Schmitt, "Die geschichtliche Lage der deutschen Rechtswissenschaft," Deutsche Juristen-Zeitung, Jg. 41, Heft 1 (January 1, 1936), pp. 1521; and "Faschistische und nationalsozialistische Rechtswissenschaft," Deutsche Juristen-Zeitung, Jg. 41, Heft 10 (May 15, 1936), pp. 619-620. 47 Carl Schmitt, "Aufgabe und Notwendigkeit des deutschen Rechtsstanden," Deutsches Recht, Jg. 6, Heft 9/10 (May 15, 1936), p. 185. 48 Ibid., p. 181. 49 Ibid., pp. 182, 185. 50 "Aus der Deutschen Rechtsfront," Deutsche Juristen-Zeitung, Jg. 41, Heft 11 (June 1, 1936), pp. 695-696. 46

PART IV

sive to protect himself against growing opposition, he had little knowledge of how precarious his position had actually become. While he made preparations for a conference that would begin the process of purging Jewish influence from German law, his Nazi opponents were busy plotting his removal from party offices. The challenges no longer came only from emigres, disgruntled rivals, and minor party of­ ficials. The most powerful party organization, the SS, had now taken up the cause of Schmitt's opponents, who had previously avoided confrontation with Frank and Goring. By the summer of 1936, the SS Security Service (SD) had started an extensive investigation of Schmitt. A driving force behind the campaign to purge Schmitt was Professor Reinhard Hohn, a former political scientist at Heidelberg whose party affiliations facilitated his professional adv­ ancement.51 By the mid-thirties, Hohn's position as SSSturmbannfuhrer in the SD had opened the way for his ap­ pointment as head of the Institute for Government Re­ search at the University of Berlin. Just a few years before, Hohn had been one of Schmitt's greatest admirers; but now, like Schmitt, Hohn was also trying desperately to forget his past. In the early thirties, while still an aspiring young scholar, Hohn had been enthralled by Schmitt's constitutional and political theories. He sought Schmitt's opinions of his own work, and eagerly looked forward to every opportunity for discussion with the jurist he held in such high regard.52 Because Schmitt believed that Hohn had a great deal of intellectual potential, he tried to accommodate him when­ ever possible. The year before the SS began its investiga­ tion, when Schmitt had been called upon to evaluate Hohn's accomplishments and talents as a scholar, he had nothing 51

Hohne, Hitler's SS, pp. 154, 224, 240-243. Hohn to Schmitt, May 2, 1932, and December 30, 1931, Schmitt, Personal Papers. See also Reinhard Hohn, Der biirgerliche Rechtsstaat utid die neue Front: Die geistesgeschichtliche Lage einer Volksbewegung (Berlin, 1929), passim. 52

THE NAZI EXPERIENCE, 1933-1947

but praise for Hohn's scholarship and personality.53 And decades later, despite the bitterness that naturally resulted from the SD affair, Schmitt's opinion of Hohn's intellect had not changed. "Had it not been for the Third Reich," Schmitt said with some disappointment, "Hohn would have become a very good scholar." But in 1936, Schmitt had become a liability for Hohn, who had taken it upon himself to make his section of the SD the ideological watchdog of the party. And those party members whom Hohn criticized for representing "wrong tendencies" struck back with rev­ elations of his earlier anti-Nazi and anti-Hitler remarks, including his statement in a 1929 book that anti-Semitism was "poisonous agitation."54 A disclosure of his relation­ ship with Schmitt would only strengthen the position of Hohn's party enemies. Moreover, since his own staff di­ rector, Otto Ohlendorf, considered Schmitt's version of Na­ tional Socialism one of the most dangerous tendencies within the movement, Hohn had an additional reason for disas­ sociating himself from Schmitt.55 Hohn later became very perturbed when in the middle of the secret SD investigation an article in the Kolnische Zeitung linked him with Schmitt. Warning the editors against repeating this error, Hohn wrote, "I would like to inform you that I am neither a student of Carl Schmitt nor do I stem from his school of thought."56 Recently, Schmitt attempted to secure himself within the party at the expense of the Jews, and now Hohn was willing to sacrifice the Kronjurist in an effort to remove doubts about his own loyalty and ideological purity. In the socialDarwinistic struggles that characterized internal party pol­ itics in the Third Reich, the repudiation of former friends and ideas was a frequent occurrence. Throughout the summer of 1936, Hohn's office devoted 53 See Schmitf s written evaluation of Hohn, 1935, Schmitt, Personal Papers. » Hohne, Hitler's SS, pp. 264-267, 373. 55 Ibid. 56 Hohn to Kdlnische Zeitung, October 16,1936, Sicherheitsdienst, p. 66.

PART IV

considerable time and effort to the investigation of Schmitt and to a surveillance of his current activities. Schmitt's mail, along with that of some of his friends, was inspected; spies reported on the lectures he delivered in various parts of the country; and many of those who had contact with Schmitt were interrogated.57 Both Eckhardt and Koellreutter co­ operated enthusiastically, providing information for the SS file on Schmitt that would eventually contain several hundred pages of documents.58 The overzealousness of certain in­ vestigators produced some truly ridiculous accusations. One report charged that Schmitt, through his Serbian wife, was connected with a communist influenced Great Yugoslavian Movement.59 But most of the charges against Schmitt were based on more plausible arguments. The data collected seemed to prove that he was not a National Socialist, but a Catholic thinker and an opportunist with numerous Jew­ ish connections.60 Still more damaging, the investigators learned that Schmitt considered the SS a major ideological opponent and had made snide jokes about the Gestapo.61 Close surveillance apparently also showed that Schmitt in­ tended to secure himself within the party by acquiring the sympathy of men close to Hitler, and for this reason had invited Julius Streicher to the forthcoming teachers' con­ ference on Jewry.62 The SS inferred that the entire confer­ ence was an attempt by Schmitt to rehabilitate himself within National Socialism. Of immediate concern to the SD was Schmitf s alleged ambition to become a state secretary when Hans Frank was appointed Reich minister of justice. Be­ lieving that Schmitfs advancement would expand the in57

Sicherheitsdienst, pp. 30, 92-94, 140. Ibid., pp. 6-10, 20-21. »Ibid., pp. 31-32. 60 Ibid., pp. 110-111, 168. 61 "Ausserungen Carl Schmitts iiber die Arbeit der SS," ibid., pp. 3536. 62 'Teilnahme des Gauleiters Streicher an einer Tagung von Carl Schmitt," ibid., pp. 47-49. 58

THE NAZI EXPERIENCE, 1933-1947

fluence of political Catholicism, the SD recommended that Himmler himself intervene to prevent Schmitt from ac­ quiring this office.63 The SD was still preparing its case against Schmitt when the "Conference on Judaism in Jurisprudence" opened in Berlin on October 3. The conference was well attended and subsequently received a good deal of coverage in the Nazi press. After Frank delivered the opening speech outlining a series of demands for the purification of National Socialist law, there followed two days of lectures by law professors from across Germany on Jewish influence in such areas as civil law, criminal law, and legal theory.64 Schmitt con­ cluded the conference with a speech on "German Juris­ prudence in the Struggle against the Jewish Intellect."65 He started out by saying that the conference had proven how pervasive the Jews had been in all areas of legal thought and how much work had to be done to purge German law of these influences. But most of his speech dealt with the "practical problems" of identifying Jewish authors, estab­ lishing separate Judaic sections in libraries, and assuring that scholars did not rely upon Jewish ideas. Then toward the end, he launched his most vitriolic attack on the Jews ever, calling them sterile intellectual parasites who had nothing to offer the Germans.66 Trying to sound like a devoted National Socialist, he said, "I repeat again and again the urgent request that you read every phrase in 63 "Ernennung

Franks zum Reichsjustizminister," ibid., pp. 42-43. Judentum in der Rechtswissenschaft: Tagung der Reichsgruppe des NSRB," Mitteilungensblatt des National-Sozialistischen Rechtswahrerbundes (Berlin, 1936), pp. 200-201; "Aus der Deutschen Rechtsfront: Das Judentum in der Reehts- und Wirtschaftswissenschaft," Deutsche JuristenZeitung, Jg. 41, Heft 20 (December 1936), pp. 1228-1232. 65 Carl Schmitt, "Die deutsche Rechtswissenschaftim Kampf gegen den judischen Geist: Schlusswort auf der Tagung der Reichsgruppe Hochschullehrer des NSRB vom 3. und 4. Oktober 1936," Deutsche JuristenZeitung, Jg. 41, Heft 20 (October 15, 1936), pp. 1193-1199. 66 Ibid., p. 1197. 64 "Das

PART IV

Adolf Hitler's Mein Kampf concerning the Jewish question, especially his statements about Jewish dialectics."67 To those in the audience who remembered his friendship with Moritz Julius Bonn and the dedication of his Verfassungslehre to Fritz Eisler, Schmitt must have appeared more like the opportunistic political romantics he had criticized in his 1919 book than a loyal servant of the Third Reich. The Jewish conference was a turning point in the SD investigation. Hohn and his cohorts feared that Schmitt's hypocritical anti-Semitic offensive might not only remove doubts about his ideological sincerity, but perhaps would also strengthen his position within Nazi institutions. To prevent either outcome, the SD decided to take prompt and direct action to undermine Schmitt's position. Frank was informed that the SS would frown upon the appoint­ ment of Schmitt to any new office in the Academy of Ger­ man Law. Trying to avoid a showdown with the SS, Frank acquiesced, stating that Schmitt himself had no desire to acquire such an office and was content with the leadership of the Teachers Group in the League of German Jurists.68 After Frank warned him of the SS intervention, Schmitt wisely stayed away from the next session of the Academy. But this only increased the determination of the SS to re­ move Schmitt from the party. They viewed his withdrawal from active participation in the Academy as merely a "cun­ ning" tactic, and considered his retention of any office in­ tolerable.69 By November, when rumors of the SS intrigues against Schmitt were spreading, Popitz advised Schmitt that he would not be able to defend himself much longer in the League of German Jurists and must resign.70 At this point Schmitt seriously considered resigning from his party offices. However, while he was pondering this decision, the SS pressured Frank into agreeing to remove Schmitt 67

Ibid., p. 1198.

68 Sicherheitsdienst, 69 70

Ibid., pp. 82-87. Ibid., pp. 96-98.

p. 81.

THE NAZI EXPERIENCE, 1933-1947

from offices in Nazi legal organizations by the end of 1936, in the event that Schmitt had not resigned by that date.71 The SD had also become incensed when Giinther Krauss7 a former Schmitt student, published an article on Novem­ ber 10 praising Schmitt's contributions to Nazi legal theory and explaining away the apparent incongruities between Schmitt's past and his allegiance to National Socialism.72 Krauss compared Schmitf s intellectual and political evo­ lution with the historical development of the German peo­ ple; both had proceeded from Catholicism to the state to the Reich. Even more reprehensible in the eyes of the SD was Krauss's assertion that Hitler himself had followed a similar path from Catholicism to the state and finally to National Socialism. Considering the timing and the fact that the article appeared in Jugend und Recht, the organ of the youth section of the League of German Jurists, the SD naturally surmised that Schmitt was behind this publica­ tion. The SD believed that Sehmitt had devised a "cunning plan" to save himself by having others defend him, while he abandoned his futile attempts to influence the devel­ opment of Nazi legal theory and moved into the less con­ troversial area of international law.73 But the SD was not about to allow Schmitt to escape from its clutches. In a desperate effort to safeguard his position, Schmitt wrote to Himmler on December 2 describing the fruitful work of his Teachers Group in purging the Jewish spirit from German law and offering full cooperation in the strug­ gle against Judaism.74 But he was too late. The next day a mild rebuke of Schmitt, in the form of a sarcastic critique of Krauss's article, was published in Das Schwarze Korps.75 71

Ibid., pp. 99-101, 126.

71 Gunther

Krauss, "Zum Neubau deutscher Staatslehre: Die Forschungen Carl Schmitts," Jugend und Recht, Jg. 10, No. 11 (November 10, 1936), pp. 252-253. 73 Sicherheitsdienst, pp. 112-115. 74 Schmitt to Himmler, December 2, 1936, ibid., p. 125. 75 "Eine peinliche Ehrenrettung," Das Schwarze Korps, Folge 49 (Decem­ ber 3, 1936), p. 14.

PART IV

This was followed a week later by a second article de­ nouncing Schmitt's anti-Semitic stance as a mere oppor­ tunist sham to cover his former friendship with Jews and reliance upon Jewish scholarship,76 The article stated that Schmitt had been a prominent exponent of political Ca­ tholicism who had supported the Center Party and the Bruning government. Only in 1933 had Schmitt, for reasons of self-interest, joined the National Socialist movement; thereafter he had suddenly discovered harmful Jewish in­ fluences in German intellectual life, whereas before he had praised his Jewish colleagues. To show what Schmitt really thought of Nazi race doctrines, Das Schwarze Korps quoted his 1916 book Nordlicht. "The whole romanticism of race teaching," Schmitt had written, "rests on similar, namely morphological speculations, and persons who like to call themselves Realpolitiker, make natural scientific, presum­ ably exact race differentiations valid, but basically they mean moral significances."77 Schmitt wrote this, the editors em­ phasized, while "the best part of German youth was bleed­ ing to death at the front."78 These articles had immediate repercussions. The Nazi theorist Gottfried Neesse informed Schmitt that the articles were not only widely read and discussed, but had actually "caused a great sensation" within the party.79 Although there was some uncertainty as to whether this was the beginning of a general attack on Schmitt by the SS, he had definitely been stigmatized. Over the past several years, many had presumed Schmitt to be a man of influence in the right circles and had tried to cultivate relationships with him; now he was to be avoided. His name no longer added any distinction to organizations, publications, or social cir76 "Es wird immer noch peinlicher," Das Schwarze Korps, Folge 50 (De­ cember 10, 1936), p. 2. 77 Ibid. ™Ibid. 79 Gottfried Neesse to Schmitt, December 13, 1936, Schmitt, Personal Papers.

THE NAZI EXPERIENCE, 1933-1947

cles. Mere association with him might raise suspicions. The day after the second article appeared, Schmitt was notified that owing to "recent developments" he had been with­ drawn from participation in an oral examination at the min­ istry of justice.80 Two articles had transformed the Kronjurist into an outcast. Hans Frank, who had for years protected Schmitt against party rivals, was the first to rise to his defense. He im­ mediately wrote to Giinther d'Alquen, editor of Das Sckwarze Korps, pointing out that these allegations merely repeated the denigrations of the Jewish emigre press.81 Had d'Alquen been familiar with Schmitt's work over the last three years for National Socialist goals, he would never have published these articles. A copy of the letter was forwarded directly to Himmler. But despite these protests, Frank knew that he alone could not withstand the SS; over the past few months he had already complied with their wishes by al­ lowing the deliberate isolation of Schmitt in the Academy of German Law and by preparing for Schmitt's removal from other offices. Within a few days Frank made addi­ tional concessions. On December 15 it was announced that Schmitt, "for reasons of health," had asked to be relieved of his duties in the League of German Jurists, and that same day he resigned his editorship of Deutsche JuristenZeitung.82 Frank's position became even less tenable after Himmler backed up Das Schwarze Korps in this matter.83 In fact, the SS had determined to block off even Schmitt's scholarly contacts, which he might still attempt to preserve by turning to questions of international law. Since they 80 President of Reichs-Justizpriifungsamt to Schmitt, December 20,1936, Schmitt, Personal Papers. 81 Frank to d'Alquen, December 11, 1936, Sicherheitsdienst, pp. 128129. 82 Ibid., p. 155; Mitteilungensblatt des National-Sozialistischen Rechtswahrerbundes (Berlin, 1936), p. 248; Hans Frank, "Zum Schluss," and Carl Schmitt, "Schlusswort des Herausgebers," Deutsche Juristen-Zeitung, Jg. 41, Heft 24 (December 15, 1936), pp. 1449-1456. 83 Himmler to Frank, January 5, 1937, Sicherheitsdienst, p. 240.

PART IV

considered him their avowed opponent, the SS would ac­ cept nothing less than a full disclosure of his disloyalty. Schmitfs publications, together with other evidence, were collected in order to prepare a case against him which would nullify the protests of party functionaries like Frank. Based on this material, two long reports were made, stating that while older party members had opposed him as early as 1933, it was the emigre press which had first exposed his true political Weltanschauung and then exploited the situ­ ation in order to ridicule National Socialism.84 Even more striking than the accusations of philo-Judaism, Catholi­ cism, and opportunism was the irrefutable documentation of Schmitfs prior anti-party activity. As the Kronjurist of the presidential system he had advocated the constitutional suppression of the National Socialists and, the report em­ phasized, the theory of the "equal chance" embodied in his Legalitiit und Legitimitat was expressly intended to pre­ vent the legal acquisition of power by the NSDAP.85 Such evidence wielded by the SS inevitably held grave conse­ quences for the individuals involved; it seemed that Schmitt might be imprisoned, or worse. Although the reports were kept secret, the articles in Das Schwarze Korps had aroused an atmosphere of anticipation. While party adversaries awaited the end of Schmitt's Na­ tional Socialist career, Deutsche Briefe, in long reports on his changing fortunes, pointed out that it had long ago un­ veiled his true nature, and that so long as he served a purpose for National Socialism the Nazis could overlook his past; now he was superfluous.86 With the case against 84 "Professor Carl Schmitt"; and "Der Staatsrechtslehrer Professor Carl Schmitt," Mitteilungen zur Weltanschaulichen Lage, Nos. 1/3 (January 8, 1937), ibid., pp. 184-220, 266-281. 85 Ibid., pp. 194-201. 86 Ibid., pp. 155,161-168; "Die NS Treibjagd gegen NS Kronjuristen Carl Schmitt hat eingesetzt," Deutsche Briefe (December 18, 1936), and "Auf dem Wege in die Emigration oder ins Konzentrationslager?" Deutsche Briefe (December 24, 1936), II, pp. 498-499, 510.

THE NAZI EXPERIENCE, 1933-1947

him apparently almost closed, the paper, perhaps hope­ fully, declared his alternatives to be "emigration or a con­ centration camp." The SD affair placed Schmitt in a quandary. Terrified by his adverse change of fortune, he wondered whether his options really were emigration or a concentration camp. He did give some thought to the possibility of emigration, but his deeply rooted nationalistic feelings made the choice of leaving Germany an exceptionally difficult one. More­ over, he worried about what a future abroad would mean for a former Nazi Kronjurist who had justified the Blood Purge of 1934 and anti-Semitic racial laws. The uncertain­ ties of a new life abroad had to be weighed against the lingering hope that the danger would pass and that he could retain his prestigious professorship in Berlin. Even the most compelling reason for leaving Germany, his per­ sonal safety, presented a dilemma. For any attempt at em­ igration might play into the hands of the SD; he was in fact under surveillance into 1937.87 Despite all of these thoughts and worries, Schmitt made no conscious decision to pursue one course of action as opposed to another. He merely waited. Suddenly, the SS terminated its public campaign against Schmitt, although the extensive information on him still remained in the files of the SD. For Hermann Goring, like Frank, objected to the public defamation of a prominent associate who, as Prussian state councillor, fell into his sphere of influence. In a letter to d'Alquen demanding that even if the evidence were accurate, open criticism of Schmitt should cease, Goring declared that he could not tolerate the denigration of his own appointee.88 He also requested that the next edition carry a notice clearly indicating that as far as the paper was concerned the matter was closed. The last request was never fulfilled, but Goring and Himmler 87 88

Sicherheitsdienst, pp. 245-247. Goring to d'Alquen, December 21, 1936, ibid., p. 235.

PART IV

did arrange some compromise. Although the secret inves­ tigations of Schmitt extended into 1937, the only result of the whole affair was the end of his work within the party. Schmitt retained his chair of law at the University of Berlin, as well as his official title of Prussian state councillor, though the Council last assembled in 1936. Nevertheless, the im­ munity conferred by this position was upheld by Goring, and Schmitt was not disturbed in it until the end of the Third Reich. To avoid further complications, he never again dealt with domestic or party politics, but turned his atten­ tion to the study of international relations, and soon passed into obscurity. Opportunism had certainly been a major factor in Schmitf s National Socialist career, but equally important was his own belief that he could, as the Nazi Kronjurist, establish a constitutional framework for the Third Reich. To him, National Socialism was a precocious movement which re­ quired further development of its theoretical political and legal foundations. His attempt to provide such foundations along the lines of a traditional authoritarian regime was foredoomed, and he succeeded only in helping to consol­ idate a totalitarian dictatorship. Certain members of the party hierarchy had welcomed his support in the initial stages of the regime because his reputation lent an aura of respectability to the Nazi cause. But as soon as Schmitt attempted to exert any real influence, the struggle to elim­ inate him began. In 1936, Deutsche Briefe aptly summed up his predicament in Schiller's phrase, "The Moor has done his duty, the Moor can go."89 89 "Der NS Kronjurist Carl Schmitt als Mohr . . . ," Deutsche Briefe (December 11, 1936), II, pp. 489-491.

TWELVE

THE SECURITY OF SILENCE? FROM GROSSRAUM THEORY TO NUREMBERG

As THE months passed without further incidents, Schmitt felt more and more secure in his belief that Goring's in­ tervention had definitely ended the SD campaign. He had been greatly shaken by this experience and would do every­ thing possible to avoid attracting the attention of the party. When the SD ceased its attacks on him, a relieved yet suspicious Schmitt withdrew from public life. Never again did he provide legal or political advice for Nazi officials or institutions; thereafter questions related to Nazi laws and domestic politics were never addressed in any of his works. Similarly, his personal associations with Goring and Frank were broken off in 1936; he never met Goring again, and he had only a few brief encounters with Frank in the years that followed.1 Taking refuge in his professorial duties at the University of Berlin, Schmitt received no public atten­ tion for the next two years. His withdrawal from public life, however, was certainly not unique. Many German intellectuals, out of disdain for the Nazis from the very beginning or out of eventual disillusionment with the re­ gime, had entered into a state of "inner emigration," avoid­ ing political questions by escaping into esoteric areas of scholarship.2 But few of them had gone as far as Schmitt had in his compromises with the Nazis before facing re1 Schmitt, Beantwortung der Frage, p. 2; and Beantwortung des Vorwurfs, p. 5. 2 Ringer, Mandarins, pp. 442-443; Klemperer, Conservatism, p. 203. See also Gerhard Ritter, "The German Professor in the Third Reich," The Review of Politics, Vol. VIII, No. 2 (April 1946), pp. 242-254.

PART IV

jection. Therefore, when Schmitt joined the ranks of the inner emigration he encountered a cold reception. He was now mistrusted by all sides, whether for his insincerity or for his closeness to the party. Schmitt's recent experiences had, however, forced him to engage in serious soul-searching. Previously he had tried to rationalize his collaboration, in part, with the hope that once a strong state was established individual citizens would be allowed to live their private lives within the security of that state. When his own life was threatened, he finally faced the reality of a totalitarian party which intervened in the private sphere arbitrarily and which tolerated no in­ dependence of thought. He now became particularly sen­ sitive to something he had probably recognized from the start of his Nazi career, but refused to admit to himself so long as he was advancing within the system. The funda­ mental purpose he had assigned to the state, even in his earliest works—to provide order, peace, and security for its citizens—could never be fulfilled by a state under Nazi control. Since 1933, he obviously knew that the state no longer provided security for certain segments of society, and that the security of many outside these groups was always doubtful. But like so many middle-class Germans, Schmitt closed his eyes to this problem. In fact, to assure his own security, he cooperated with the emerging totali­ tarian order and through his writings helped justify the authority of the Nazis. Considering how conscious Schmitt always was of the concrete situation, a great deal of selfdelusion was necessary for him to deny the reality around him. Only when the actions of the Nazis struck close to home did Schmitt express any disapproval. Schleicher's murder had prompted a response from him. Similarly, when the arbitrariness of the party threatened Schmitt person­ ally, clear indications of disillusionment with the Nazi state began to appear in his writings for the first time. Still fearing for his safety, Schmitt would never criticize the Nazis directly. He would instead cautiously cloak his

THE NAZI EXPERIENCE, 1933-1947

dissatisfaction in erudite pieces of scholarship on Thomas Hobbes and the nature of the leviathan.3 Schmitt had a tremendous respect for Hobbes, and was disturbed that scholars often viewed Hobbes as an advocate of an abso­ lutist state. Writers in the western democracies, Schmitt noted, incorrectly used the term totalitarian to explain the Hobbesian state. This gross misinterpretation, he argued, was completely inconsistent with Hobbes's philosophy of the state and his concept of the relationship between pro­ tection and obedience.4 The primary purpose of the state for Hobbes was to secure the physical existence of its cit­ izens; here there was fundamental agreement between the two thinkers.5 It would be ridiculous, Schmitt wrote, for the poor human being, out of total fear of the state of nature, to flee into the total control of a Golem or Moloch.6 "The state machine functions or it does not function. In the first case it guarantees me the security of my physical existence; for this it demands unconditional obedience to the laws of its functions. All further discussions lead into a 'pre-stately' condition of insecurity, in which one's phys­ ical life is no longer secure."7 If the protection ceases, how­ ever, then the state itself also ceases to function and with it ends each obligation of obedience. At this point the in­ dividual once again wins his natural freedom.8 'The 're3 These attitudes were first expressed by Schmitt early in 1937 in an article entitled "Der Staat als Mechanismus bei Hobbes und Descartes," Archiv fiir Rechts- und Sozialphilosophie, Band 30 (1936/1937), pp. 622-632, which he later expanded into Der Leviathan in der Staatslehre des Thomas Hobbes: Sinn und Fehlschlag eines politischen Symbols (Hamburg, 1938). 4 Schmitt, Leviathan, pp. 111-112. 5 Ibid., p. 55. On the intellectual relationship between Hobbes and Schmitt see Rumpf, Schmitt und Hobbes, especially pp. 56-98; and Martin Janicke, "Die 'Abgrundige Wissenschaff vom Leviathan: Zur Hobbes-Deutung Carl Schmitts im Dritten Reich," Zeitsehrift f Ur Politik, Jg. 16, Heft 3 (Sep­ tember 1969), pp. 401-415. 6 Schmitt, Leviathan, p. 112. 7 Ibid., p. 69. 8 Ibid., p. 113.

PART IV

lation of protection and obedience' is the cardinal point of the Hobbesian concept of the state. All one-sided ideas of totalitarian control are incompatible with it."9 On the other hand, Schmitt pointed out, Hobbesian ideas "are very com­ patible with the concepts and ideals of the bourgeois Rechtsstaat."10 Unmistakably, Schmitt had Nazi totalitarianism in mind when, a short while after his confrontation with the SD, he began to work on Hobbes. However, Schmitt never entertained the thought of resistance to the Nazis. Like Hobbes, he believed that resistance to the power of the state would be a fruitless absurdity, since the state mo­ nopolized power and had the means to destroy any re­ sistance. If the state did not possess this irresistible power, Schmitt wrote, it could not maintain peace and security; then civil war or rebellion would most likely occur.11 Under these conditions of conflict a state of nature would return and mark the end of the existing political structure. Thus, Schmitt found himself in the precarious position of an in­ dividual who is uncertain if his existence is secured by the state, yet to whom resistance appears hopeless. Although in the end the state rewarded Schmitt's obe­ dience and acquiescence with the preservation of his life, his retreat into the scholarly world never provided the sanc­ tuary he sought. Not only was he always conscious of the caprice of the Nazi leviathan, but reminders of his close call with the SD were ever present in those scholarly circles where he tried to remain active. In the law faculty at the University of Berlin, Schmitt had to work in an environ­ ment in which his ardent opponent, Reinhard Hohn, wielded considerable influence. Hohn's status among law profes­ sors was due mostly to his SS affiliations; allegedly he was close to Himmler. Hohn had served as director of the In­ stitute for Government Research since its transfer to the 9 Schmitt,

"Hobbes und Descartes," p. 627. Schmitt, Leviathan, pp. 113-114. » Ibid., pp. 71-72. 10

THE NAZI EXPERIENCE, 1933-1947

University of Berlin from Kiel in 1935.12 One of his primary objectives was to develop this institute as a center for es­ tablishing the foundations of a new type of National So­ cialist constitutional and administrative law. This was the same field Schmitt had originally intended to dominate by playing the role of Kronjurist, but which he now wisely abandoned. Hohn's involvement in the SD affair had created a good deal of tension between the two professors. Any attempt to heal the wounds was prevented by the fact that Hdhn continually had to defend himself against charges by his own party rivals that he belonged to the Schmittian school of thought.13 Despite their earlier relationship, such asser­ tions were certainly no longer valid. Ever since he joined the SS, Hohn had become committed to the Nazi volkisch ideology and his racial approach to politics and law con­ trasted sharply with Schmitt's ideas. Hohn considered the Volk as the pillar of the Nazi system. The Volk represented far more than the people or the nation; it was an organically developed racial community. Each Volk supposedly had its own identity, nature, and vital life source out of which grew all culture and institutions, including the state. Like many SS theorists, Hohn emphasized that the biological makeup of each Volk determined the essence and unity of the state, whereas Schmitt did not conceive of the state in racial terms. Indeed, Hohn never ceased his criticism of Schmitt's uriOdlkisch ideas.14 At the university, Schmitt usually attracted the more con12 Institut fiir Staatsforschung, Universitat Berlin, Ministerium fiir Wissenschaft, Kunst und Volksbildung, Rep. 76, No. 46, pp. 160, 258-260, Geheimes Staatsarchiv. 13 State Secretary Hans Lammers to Dr. Stuckart, June 28, 1939, Reiehskanzlei, R-43-II, 913; Helmuth Heiber, Walter Frank und sein Reichsinstitut fiir Geschichte des neuen Deutschlands (Stuttgart, 1966), pp. 124, 912. 14 Reinhard Hohn, "Grossraumordnung und Volkisches Rechtsdenken," Reich, Volksordnung, Lebensraum, Jg. 1 (1941), p. 286.

PART IV

servative students to his lectures and seminars, while those students oriented toward volkisch thought found Hohn more appealing. But Schmitt intentionally avoided the appear­ ance of competition. He had learned his lesson well, and eschewed Nazi constitutional and administrative law in favor of international law. With the exception of his Hobbes studies, all of Schmitf s publications between 1937 and 1945 dealt with international law and politics. Questions on Na­ tional Socialist legal thought were, however, bound to be asked. And an ever cautious Schmitt always referred stu­ dents interested in these matters to his "distinguished col­ league, Professor Hohn."15 It was under these closely scru­ tinized and tense conditions that Schmitt was forced to pursue his academic career for the rest of the Third Reich. Schmitt encountered similar difficulties in the Academy of German Law, the one legal organization in which he tried to remain active after 1936. By this time SS jurists had gained control of several important committees within the Academy and succeeded in preventing Schmitt from ac­ quiring any offices within this organization. Schmitt also had to contend with the presence of an arch-rival who over the past several years had tried to undermine his standing in the party. For among the Academy's members was Otto Koellreutter, and though the SD campaign had ceased, he was as relentless as ever in his efforts to expose Schmitt as an ideological deviant. In his correspondence with mem­ bers of the Academy, Koellreutter rarely missed an op­ portunity to complain about continued Schmittian influ­ ence in legal circles.16 Oddly enough, Koellreutter was one of those who still linked the ideas of Hohn with those of Schmitt. Only through the assistance of friends in the Aca­ demy such as Professor Werner Weber, and only so long as he remained in the background, was Schmitt able to 15

Altmann Interview. Koellreutter to Werner Weber, May 28,1937, Akademie fur Deutsches Recht, R-61, No. 78, BA. 16

THE NAZI EXPERIENCE, 1933-1947

maintain this institutional affiliation.17 But both Schmitt and his friends knew that his very presence created a del­ icate situation. As a result, Schmitt eschewed not only sub­ jects related to domestic politics and law, but he also re­ fused to take a position on any matter which might cause controversy, or even lead to heated discussion. For two years he kept himself narrowly confined to abstract writ­ ings on international law and changing concepts of war, which to a great extent were really an elaboration of his friend-enemy thesis.18 Even in these areas, however, he feared disagreements which might revive the controversy over his ideas. He refused, for example, to read papers before the Academy when other papers were being pre­ sented on the same subject; he especially avoided getting into discussions with Koellreutter.19 The situation was so tense that Schmitf s friends in the Academy were reluctant to send him official congratulations, or to sponsor any cel­ ebration, on his fiftieth birthday (July 11, 1938). This oc­ casion, wrote Freytagh-Loringhoven, "is definitely a very difficult matter. . . . which requires serious consideration of all factors involved."20 A few years earlier, this event would have been cause for celebration and would probably have received extensive press coverage; now congratula­ tions by certain members of the Academy were limited to personal telegrams and private visits. 17 Ibid., Nos. 64, 78, 80, 84, 88,109; and Akademie fur Deutsches Recht, Records of Nazi Cultural and Research Institutes, No. T-82, Roll-23, Serial28, Reel-806, and Roll-24, Serial-29, Reel-807, U.S. National Archives. 18 Carl Schmitt, Die Wendung zum diskriminierenden Kriegsbegriff (Munich, 1938). See also Carl Schmitt, "Staat als ein konkreter, an eine geschichtliche Epoche gebundener Begriff"Die Lage der europaischen Rechtswissenschaft," Aufsatze, pp. 375-426; and "Totaler Feind, totaler Krieg, totaler Staat"; "Uber das Verhaltnis der Begriff Krieg und Feind";"Volkerrechtliche Neutralitat und volkische Totalitat," Positionen und Begriffe, pp. 235-239, 244-251, 255-260. 19 Werner Weber to Axel Freytagh-Loringhoven, October 19,1937, and Freytagh-Loringhoven to Weber, October 12,1937, Akademie fur Deutsches Recht, R-61, No. 80. 20 Freytagh-Loringhoven to Weber, June 29, 1938, ibid.

PART IV

To a certain extent, some of Schmitt's difficulties were self-imposed. He could have avoided many of these prob­ lems by resigning from the Academy. But while his recent experiences made him shy away from controversy, they did not diminish his desire for professional recognition. And the Academy was one of the few professional avenues open to him. As unobtrusive as he was in this institution, he knew that his work was respected by many of his peers. So long as he felt relatively secure, he was unwilling to withdraw voluntarily from one of the few remaining in­ stitutions that allowed intellectual productivity and rec­ ognition. Furthermore, Schmitt still had a strong propen­ sity for writing about issues of contemporary significance, and despite his generally prudent behavior, he eventually made a very unwise intellectual excursion into an area of crucial importance to the Nazis. To write about interna­ tional law without acknowledging recent developments proved to be an impossible task for someone whose basic tendency was always to analyze political and legal ques­ tions in the light of a concrete situation. By 1938, with Nazi foreign policy the major issue in European affairs, Schmitt was unable to resist the temptation to provide his own scholarly analysis. What he had not anticipated was re­ newed public attention and a new, potentially dangerous theoretical dispute with the Nazis. Since the early thirties Schmitt had believed that the tra­ ditional state system was undergoing a fundamental trans­ formation, though he had no idea where this would lead or what new order might replace it.21 But by 1938, Schmitt began to perceive the broad outlines of a new order in international law and politics. In that year Hitler had started to dismantle the existing state system in central and eastern Europe. Speaking before the Reichstag on February 20, 1938, Hitler promised to protect German minorities outside the Reich. By mid-March he had achieved the Anschluss 21

See Schwab's introduction to The Concept of the Political, pp. 8-11.

THE NAZI EXPERIENCE, 1933-1947

with Austria and in September the Munich agreement ceded the Sudetenland to Germany. When Hitler violated this agreement by occupying Bohemia and Moravia on March 15, 1939, Germany was on the verge of establishing he­ gemony in central and eastern Europe. Schmitt concluded that these developments could best be understood in the context of Raumtheorie (space theory), a concept widely dis­ cussed by German thinkers for over two decades and one especially popular during the Third Reich. Although it was not specifically identified as such, some of the basic aspects of Raumtheorie were already evident in the writings of Friedrich Naumann and others during World War I.22 According to their concept of Mitteleuropa, modern political, economic, and technological considerations ne­ cessitated the creation of a German empire in the center of Europe that would allow Germany to survive in a world dominated by political units larger than the typical Euro­ pean nation-state, namely Russia, the British Empire, and the United States.23 Raumtheorie was first established as a specialized field of study in the twenties, when it became an integral part of the developing science of geopolitics.24 Students of this school of thought emphasized the signif­ icant interrelationship between geography and politics, particularly where economic and strategic factors were in­ volved. Naturally the type and size of a Raum (the area over which one exerted influence or control) was a crucial element in any geopolitical study. The leading proponent of this new science was Karl Haushofer, who as a professor of geopolitics at the University of Munich had founded the Zeitschrift filr Geopolitik in 1924. Under his sponsorship the 22

Friedrich Naumann, Mitteleuropa (Berlin, 1915). Fritz Fischer, War of Illusions: German Policies from 1911 to 1914 (New York, 1975), pp. 30-43, 439-458. See also Fritz Fischer, Germany's Aims in the First World War (New York, 1967). 24 See, for example, Adolf Grabowsky, Politik (Berlin, 1932), pp. 30, 45; and "Staatserkenntnis durch raumliches Denken," in Politik als Wissenschaft, pp. 34-54. 23

PART IV

field grew in importance until it acquired respectability among German academicians. Haushofer's own intentions went far beyond these le­ gitimate scholarly and theoretical pursuits; he wanted geo­ political studies to serve as a foundation for German ex­ pansion. It was from Haushofer, the mentor of Rudolf Hess, that Hitler plagiarized the idea of Lebensraum.25 At first Haushofer viewed Lebensraum in terms of the right of a country to acquire territory commensurate with the needs of its population. After the Nazis seized power and he became director of the Institute for Geopolitics, Haushofer began to write about Lebensraum in the context of the Na­ tional Socialist doctrine of biological racism.26 This was a major disservice to the promising, quite reputable science of geopolitics. Thus, Schmitt's audience was well prepared when, a few weeks after the invasion of Czechoslovakia, he introduced his concept of Grossraum in a lecture before the Institute for Politics and International Law at the University of Kiel.27 Schmitt noted that his purpose was to establish the concept of Grossraum as a principle in the science of international law.28 Although his idea was clearly related to the general field of Raum studies, he drew a sharp distinction between his own concept and those of the Haushofer school.29 The 25 Norman Rich, Hitler's War Aims: Ideology, the Nazi State, and the Course of Expansion (New York, 1973), p. xxxiv; Bracher, Dictatorship, p. 128. 26 See Karl Haushofer, Weltpolitik von heute (Berlin, 1935), especially the sections on race, pp. 211-215; and Macht und Erde: 1Π, Raumiiberwindende Machte (Leipzig/Berlin, 1934), ed. Karl Haushofer. His son, who was shot

for his involvement in the conservative resistance to Hitler, also wrote extensively on Raum theory and geopolitics. See Albrecht Haushofer, Zur Problematik des Raumbegriffs (Heidelberg/Berlin, 1935); and Allgetneine politische Geographie und Geopolitik (Heidelberg, 1944). 27 Carl Schmitt, Volkerrechtliche Grossraumordnung mit Interventionsverbot filr raumfremde Machte: Ein Beitrag zum Reichsbegriff im Volkerrecht (Berlin, 1939). 28 Ibid., p. 8. 29 Ibid., pp. 13-16.

THE NAZI EXPERIENCE, 1933-1947

essential element in a Grossraum, according to Schmitt, was its "political idea," a point neglected by geopolitical the­ orists.30 Similarly, Grossraum differed significantly from Lebensraum or, as Schmitt called it, the "demographic right" of a stronger nation with an expanding population to make territorial demands.31 Many of the nonracial aspects of these demographic and geopolitical ideas were closely connected with the theory of Mitteleuropa, which he also distinguished from Grossraum.32 A Grossraum, Schmitt stated, was an area dominated by a power representing a distinct "political idea." This idea was always formulated with a specific opponent in mind; in essence, distinctions between friend and enemy would be determined by this particular political idea. As an ex­ ample, he cited the American Monroe Doctrine and its concept of nonintervention by foreign powers in the Amer­ ican Rautrt.33 The originators of the Monroe Doctrine, he argued, saw their enemy as the representatives of the Eu­ ropean monarchical-dynastic principle of legitimacy, who claimed the right of intervention to uphold this principle. The United States, on the other hand, defended the polit­ ical idea of free and independent states in opposition to the interventionism of the European system.34 By the twen­ tieth century, the western democracies, which invoked lib­ eral democratic and capitalistic legitimacy principles to maintain the status quo, were in a position similar to that of the former Holy Alliance. Britain and the United States followed a policy of universalism that included the doctrine 30

Ibid., pp. 34-35. Ibid., p. 16. 32 Carl Schmitt, "Reich und Raum: Elemente eines neuen Volkerrechts," Zeitschrift der Akademie fir Deutsches Recht, Jg. 7, Heft 13 (July 1, 1940), p. 201. See also Lothar Gruchmann, Nationalsozialistische Grossraumordnung: Die Konstruktion einer "deutsehen Monroe-Doktrin" (Stuttgart, 1962); and Eduard Bristler (John Herz), Die Volkerrechtslehre des Nationalsozialismus (Zurich, 1938). 33 Schmitt, Grossraumordnung, p. 23. 34 Ibid., pp. 33-35. 31

PART IV

of intervention to introduce and to guarantee their prin­ ciples of legitimacy. Britain maintained this policy to pro­ tect its empire and to assure the status quo. The United States since Theodore Roosevelt and Woodrow Wilson had followed a similar policy of universalism and intervention, though it still opposed intervention in its own hemi­ sphere.35 From Schmitt's point of view, this system of universalism and interventionism was disintegrating as a result of the rise of a new Grossraum in central and eastern Europe. A central component of this Grossraum was the Reich, the major power in this area, representing a distinct political idea and resisting intervention by foreign powers in its Raum.36 This political idea was introduced by Hitler when he assumed responsibility for protecting German minori­ ties in central and eastern Europe. At that point, the pro­ tection of minorities under the universalism and interven­ tionism of Versailles and the League of Nations was ended in this part of Europe.37 More precisely, the political idea represented by the Reich included uniting German minor­ ities with Germany so as to assure their protection, and at the same time to guarantee the development of the national unity of the German people by preventing the assimilation of these minorities into other national groups. Every na­ tional group in this Grossraum, German and non-German alike, however, would be allowed to live as individual na­ tional entities, though under German hegemony. In effect, the Reich would determine the political future of this area to the exclusion of powers foreign to this Raum.38 But Gross­ raum and Reich were not synonymous, since not every state or national group within a Grossraum would be a part of the Reich; the Reich was merely the dominant political unit. Neither was a Grossraum an empire, because empire pre35 36 37 38

Ibid., pp. 36-39, 53-54. Ibid., p. 69. Ibid., pp. 64-65. Ibid., pp. 86-87.

THE NAZI EXPERIENCE, 1933-1947

supposed universalism and the assimilation of nations.39 The German Reich would supposedly prevent such assim­ ilation and respect the existence of the various nationalities in this area. Schmitt went on to say that the western powers and the Soviet Union both claimed the right of intervention around the world on the basis of universal principles. But Germany would now resist such intervention in its Grossraum in the same way that the United States, using the Monroe Doc­ trine, prohibited intervention in the American hemisphere. Germany's Grossraum in the middle of Europe would stand between the western powers, with their notions of uni­ versal liberal-democratic principles, and the universalism of the Bolshevik East, with its idea of world revolution.40 The emergence of this Grossraum, he asserted, would re­ quire a new type of international law. The traditional sys­ tem of international law based either on universal princi­ ples or on relations between sovereign states was no longer adequate. It would soon be evident that Schmitt had developed a concept that many German writers found intriguing. But with the exception of definite statements on the protection of minorities and nonintervention, most of his ideas on Grossraum were quite abstract. As critics quickly pointed out, he had said nothing about the actual internal nature or precise political order of such a Grossraum, nor had he made any concrete suggestions regarding the new type of international law he said was necessary. Even those who had studied with the renowned professor felt he had neg­ lected some very essential points. During the war, a former student on leave from the eastern front responded to Schmitt's enthusiastic explanation of Grossraum with the remark, "It doesn't really matter how big your Grossraum is, but how you live in it." Vagueness and abstractions, of 39

Ibid.,

40

Ibid.

pp. 70-71.

PART IV

course, were often intentional on Schmitt's part in order to avoid the likelihood of contradicting party theorists. Schmitt himself knew that his ideas on the subject needed further development. In 1939, he was simply trying to in­ troduce a new concept into international law, one he be­ lieved was required by the reality of a new concrete situ­ ation in Europe. The development and refinement of this concept was a goal he set for German political and legal theory.41 There is little doubt that Schmitt's lecture and later pub­ lications on the subject were supportive of Hitler's foreign policy in central and eastern Europe. For two decades, Schmitt's nationalistic sentiments were manifested in re­ lentless criticism of Versailles.42 Naturally he was elated over the reemergence of a strong Germany asserting itself once again in international politics. His hopes for a revi­ talized Germany capable of distinguishing friend from en­ emy and of overthrowing the burdens of the Diktat were close to realization. Earlier he had welcomed the repudia­ tion of the military clauses of Versailles, as well as the remilitarization of the Rhineland.43 Now his emphasis on nonintervention was definitely related to the opposition the Germans might face as a consequence of Hitler's recent actions. But Schmitt did not advocate war or the Nazi con­ quest of Europe. His works on Grossraum contained no specific or predetermined objectives; rather he analyzed changes that had already taken place. Only after the Nazis were in control of most of Europe would Schmitt expand his concept from a central and eastern European Raum to 41

Ibid., pp. 7-8, 87-88. Carl Schmitt, "Die siebente Wandlung des Genfer Volkerbundes. Eine volkerrechtliche Folge der Vernichtung Abessiniens," Deutsche Juristen Zeitung, Jg. 41, Heft 13 (July 1, 1936), pp. 785-789; and "liber die innere Logik der Allgemeinpakte auf gegenseitigen Beistand," Positionen und Begriffe, pp. 204-209. 43 Carl Schmitt, "Sprengung der Locarno-Gemeinschaft durch Einschaltung der Sowjets," Deutsche Juristen-Zeitung, Jg. 41, Heft 6 (March 15, 1936), pp. 337-341. 42

THE NAZI EXPERIENCE, 1933-1947

a "continental European" Grossraum.44 The essential ques­ tion in each case remained the same—Grossraum vs. universalism. Nevertheless, his friend-enemy thesis indicated that he considered war a natural, though extreme, conse­ quence of politics. And while he certainly did not desire war, he did accept it and tried to justify Germany's position once the conflict began.45 When the war spread around the globe, Schmitt believed that the world was being divided into larger political units or Grossrciume. The United States, the British Empire, the Soviet Union, and the new Japanese Empire each had their Raum; it appeared that Germany's Raum would be Europe. Schmitt still disapproved of the Nazis, but he would accept the fruits of the victories Hitler would win for Germany. Considering his isolation over the past two years, Schmitt never expected his introductory lecture on Grossraum to attract any attention outside academic circles. In his usual style, he had selected a timely theme for his Kiel paper, with no idea that it would once again bring him into the limelight. As it turned out, Schmitt's lecture appeared so relevant to the contemporary situation that several German newspapers, including the prestigious Frankfurter Zeitung, published long articles describing his Grossraum theory.46 With Hitler's recent territorial acquisitions the major issue on the international scene, the foreign press also took spe­ cial note of Schmitt's lecture. Two British papers, the Times and the Daily Mail, presented Schmitt as the theorist behind 44 Carl Schmitt, "Raum und Grossraum in Volkerrecht," Zeitschrift fiir Volkerrecht, Band XXIV (1941), p. 168. 45 Carl Schmitt, "liber das Verhaltnis von Volkerrecht und staatslichen Recht," Zeitschrift der Akademie fiir Deutsches Reeht, Jg. 7, Heft 1 (January 1, 1940), pp. 4-6. 46 "Das Reich im Volkerrecht, Ein Vortrag Carl Schmitts in Kiel," Frank­ furter Zeitung, No. 172 (April 3,1939); "Grossraumiges Denken. Professor Carl Schmitt sprach in Kiel," Deutsche Allgemeine Zeitung, No. 158 (April 3, 1939); Karl Heinz Bremer, "Volkerordnung und Volkerrecht. Arbeitstagung des Institutes fiir Politik und internationales Recht in Kiel," Miinchner Neueste Naehtrichten, No. 116 (April 26, 1939).

PART IV

Hitler's expansionary policy. On April 5, the Daily Mail reported that "Herr Hitler and Professor Schmitt will now, it is believed, devote themselves to completing the frame­ work of this conception, and the Fuhrer will soon give it to the world as his justification for Germany's relentless expansion."47 That same day the Times stated, "Hitherto no German statesman has given a precise definition of his aims in Eastern Europe, but perhaps a recent statement by Professor Carl Schmitt, a Nazi expert on constitutional law, may be taken as a trustworthy guide."48 The Daily Mail supported this claim when it noted that "Herr Hitler's 'key' man in this policy is Professor Carl Schmitt, middle-aged and handsome, who is the leading international lawyer in Germany."49 To those outside the National Socialist camp at least, it appeared that Schmitt had returned to the Nazi fold as their theorist of expansion. These reports appeared verified on April 28, when Hitler spoke before the Reichstag in response to President Roo­ sevelt's message asking for guarantees against further aggression. In the middle of his address Hitler referred Roosevelt to the Monroe Doctrine, stating that "We Ger­ mans support a similar doctrine for Europe—and above all for the territory and the interests of the Greater German Reich."50 Of course, the works of Schmitt were unknown to Hitler. Probably one of Hitler's advisers provided him with the idea of a European Monroe Doctrine then circu­ lating in the press. After Hitler's speech, Schmitt received a telephone call from Hans Frank, informing him that the FUhrer prided himself on his originality and warning him to remain silent about the true origin of the concept of a 47 Joseph H. Kaiser, "Europaisches Grossraumdenken: Die Steigerung geschichtlicher Grossen als Rechtsproblem," Epirrhosis, p. 542. 48 Ibid., p. 538.

«Ibid. 50 The Speeches of Adolf Hitler, April 1922-August 1939, ed. Norman H. Baynes (New York, 1969), II, p. 1646; Alan Bullock, Hitler: A Study in Tyranny (New York, 1964), pp. 500-503.

THE NAZI EXPERIENCE, 1933-1947

European Monroe Doctrine.51 Schmitt heeded this advice; he made no effort once again to play the role of Kronjurist. Schmitt did not provide the theoretical foundations for Nazi foreign policy. Hitler had formulated his ideas long before a jurist he did not know had even thought about Raumtheorie, and Schmitt's concept soon met with sharp criticism from National Socialist theorists. The source of Hitler's expansionary policies was the racial doctrine of Lebensraum. This concept, already inherent in Meitt Kampf, had received further explication from racial theorists like Alfred Rosenberg and was reinforced by the writings of the nazified geopolitical school of Haushofer. At the heart of these theories was the biological concept of race and the goal of establishing a racial empire in Europe.52 Although Schmitt mentioned national groups, his concept had noth­ ing to do with either biological racism or Lebensraum. He had essentially disregarded Lebensraum when he distin­ guished his Grossraum concept from the theory of "de­ mographic rights" to territory, though he would never dis­ cuss, let alone challenge, the Lebensraum doctrine. He had advisedly stayed away from Nazi theories since his rebuke in 1936. Hitler's proclamation of a European Monroe Doctrine, however, had raised considerable interest in Grossraum; it would remain a topic for discussion among German schol­ ars until the end of the Third Reich.53 The initial publicity 51

Kaiser, "Europaisches Grossraumdenken," p. 543. Rich, Hitler's War Aims, pp. 3-10; Gerhard L. Weinberg, The Foreign Polio) of Hitler's Germany: Diplomatic Revolution in Europe, 1933-36 (Chicago, 1970), pp. 1-24. 53 Carlo Costamagna, "Autarkie und Ethnarkie in der Volker- und Staatsrechtslehre der Neuordnung," Zeitschrift der Akademie fiir Deutsches Recht, Jg. 8, Heft13 Quly 1/1941), pp. 201-203; HermannJahrreiss, "Wandlung der Weltordnung: Zugleich eine Auseinandersetzung mit der Volkerrechtslehre von Carl Schmitt," Zeitschrift fUr dffentliches Recht, Band XXI (1941), pp. 513-536; Gustav Schmoller, "Der volkerrechtliche Status der Vereinigten Staaten nach Inkrafttreten des Englandshilfegesetzes," Zeitschrift der Akademie fiir Deutsehes Recht, Jg. 8, Heft 10 (May 15, 1941), pp. 52

PART IV

led the Kiel Institute to publish Schmitt's lecture as a sep­ arate book, whereas the other lectures from the conference were published in a single volume. Schmitt's book went through several editions; the other lectures received no further attention. And when confronted with the monu­ mental task of controlling and administering the extensive European territories under German occupation, certain Nazi theorists, each of whom had a strong racial orientation, began to find Grossraum a rather useful concept. By 1940, Werner Daitz, a former associate of Rosenberg, Dr. Werner Best, former legal adviser to Hitler and Gestapo legal expert who later became Reich plenipotentiary ruler of Denmark, and Schmitt's perennial opponent Reinhard Hohn were all interested in the subject. Beginning in 1941, Best and Hohn edited a new journal, Retch, Volksordnung, Lebensraum, de­ voted to fostering the development of a biological theory of Grossraum. Using Schmitt's idea as a point of departure, these writers proceeded to criticize his work for its abstractness and lack of substance, as well as for its neglect of Lebensraum and the racial factors they considered crucial. They attempted to correct the inadequacies in Schmitt's theory by remolding it into a program for a new racial order in Nazi occupied Europe.54 Never straying from the official Nazi ideology, they tried to present "Grossraum as Lebens­ raum."55 Hohn also initiated a program at his Institute for 153-155, Ernst Wolgast, "Grossraum und Reich Bemerkungen zur Schnft Carl Schmitts 'Volkerrechtliche Grossraumordnung/ " Zettschnft fur offentliches Reeht, Band XXI (1941), pp 20-31 54 Werner Best, "Volkische Grossraumordnung," Deutsehes Reeht, Jg 10, Heft 25 Qune 22, 1940), pp 1006-1007, Roger Diener, "Reiehsverfassung und Grossraumverwaltung im Altertum," Retch, Volksordnung, Le­ bensraum, Band I, Jg I (1941), pp 177-229, Gunther Kuchenhoff, "Grossraumgedanke und volkische Idee im Recht," Zeitsehnft fur auslandtsehes offentltches Recht und Volkerrecht, Band XII, No 1 (September 1944), pp 34-82 55 Hohn, "Grossraumordnung," ρ 287, Hans Spanner, "Grossraum und Reich. Bemerkungen zu Band I der Zeitschnft 'Reich, Volksordnung, Lebensraum/ " Zeitschnft fur offentltches Recht, Band ΧΧΠ (1942), ρ 34

THE NAZI EXPERIENCE, 1933-1947

Government Research to study the problems of Grossraum administration.56 For similar purposes, Daitz helped or­ ganize the Society for European Economic Planning and Grossraum Economy in 1941. Daitz, like the other Nazi the­ orists involved in this field, believed that "the coming order-principle of the world will consist of the proclamation of biological Monroe Doctrines."57 But their ideas never went beyond a very primitive stage of development; for the most part, Nazi interest in such ideas was limited to this small group of theorists, whose work had no discern­ ible political or ideological impact. The established Nazi doctrine of Lebensraum prevailed; it did not require any additional buttressing from Grossraum theory. Until 1943 Schmitt continued to write and lecture on subjects related to Grossraum, without ever addressing the problems Nazi theorists had found in his work, and with­ out compromising his theory by modifying it to suit the Nazi racial ideology.58 Although he published three articles in Das Reich, this did not signify a change in party policy toward him.59 Goebbels had founded Das Reich as a weekly in 1940 for purposes of psychological warfare. To strengthen public morale, Goebbels utilized the talents of numerous writers from the "inner emigration," including the poet Oskar Loerke and the Christian writer Gertrud Le Forte.60 Among party officials, Schmitt was still condemned on ide­ ological and political grounds as a representative of ". . . 56

Institut fiir Staatsforschung, Rep-76, No. 46, pp. 339-341. Max Weinreich, Hitler's Professors: The Part of Scholarship in Germany's Crimes against the Jewish People (New York, 1946), p. 125. 58 Carl Schmitt, Land und Meer: Eine weltgeschichtliche Betrachtung (Leip­ zig, 1942), and "Die Auflosung der europaischen Ordnung im 'Interna­ tional Law' (1890-1939)," Deutsche Rechtswissenschaft: Vierteljahresschrift der Akademie fiir Deutsches Recht, Band 5, Heft 4 (October 1940), pp. 267-278. 59 Carl Schmitt, "Die Raumrevolution: Durch den totalen Krieg zu einem totalen Frieden"; "Das Meer gegen das Land"; and "Beschleuniger wider Willen oder: Die Problematik der westlichen Hemisphere," Das Reich (Sep­ tember 29, 1940; March 9, 1941; April 19, 1942). 60 Grunberger, 12-Year Reich, p. 442. 57

PART IV

the most sublime and therefore most dangerous form of Catholicism."61 His Grossraum theory was considered to have only limited value and remained suspect in the eyes of most Nazis.62 Schmitt's fate was quite similar to that of many intellectuals in totalitarian societies. His ideas were usually rejected; when they were useful to party members, his concepts were never accepted in their original form, but plagiarized and distorted for the political and propagandistic needs of the moment. In 1941 the Swiss publication Schweizer Weltwoche de­ clared that, as a theorist, Schmitt was to Nazi Germany what Rousseau was to the French Revolution.63 Though obviously flattered by historical comparisons of this type, Schmitt considered such assertions about his role in the Third Reich ludicrous. During a discussion with Junger in that same year, Schmitt compared his own predicament to that of the Spanish captain of the slave ship in Melville's novel Benito Cereno.64 After a revolt placed the ship in the hands of the slaves, Captain Benito Cereno was forced to sail toward Senegal. Later the peculiar behavior of Cereno and the unusual activity on board his ship confused the captain of an American vessel, who was unaware of the slave revolt because the Spanish captain retained the out­ ward appearance of control. Only after Benito Cereno leaped to safety was he able to explain that he was merely a fig­ urehead controlled by the slaves. Schmitt adopted this myth as an explanation of his own situation after 1936.65 He claimed that, contrary to appearance, he had no influence on the course of events in Nazi Germany. 61 NSDAP, Beauftragte des Fiihrers fiir die Uberwachung der gesamten geistigen und weltanschaulichen Schulung und Erziehung der NSDAP, Reichsleitung, Rosenberg-Akten, 67, MA-129/5, 50343, Institut fiir Zeitgeschichte. « Ibid., 62, MA-129/3, 47566. 63 Kaiser, "Europaisches Grossraumdenken," p. 543. 64 Ernst Jiinger, Strahlungen I (Munich, 1964), p. 65. 65 Schwab, Challenge, pp. 141-143; Marianne Kesting, Herman Melville: Benito Cereno (Frankfurt, 1971), pp. 122-134, 240-248.

THE NAZI EXPERIENCE, 1933-1947

The significant difference between Schmitt and Benito Cereno was that the former never attempted to escape and never considered any action which might undermine Nazi rule. Until the very end, Schmitt behaved like a true Hobbesian, obeying in return for protection. Moreover, his scholarship, in particular the Grossraum works he wrote without pressure from the Nazis, reinforced the public im­ age that he was either still active in Nazi circles or at least sympathetic to their cause. And even those who knew for certain that Schmitt had terminated his party affiliations still viewed him as politically unreliable. Schmitt's rela­ tionship with Popitz during these years was a typical case in point. Since 1929, the two men had maintained a close personal and working relationship, reinforced by the social bonds that had developed between their families. In the midst of the Allied bombing of Berlin, Schmitt and Popitz sat together night after night in shelters discussing various subjects. When Schmitt's home was damaged, he moved in with the Popitz family for a short time. But Popitz never allowed Schmitt to discover that he was involved in the Resistance. After the aborted plot to assassinate Hitler on July 20, 1944, Popitz was arrested as a major conspirator, tried, and hanged.66 Upon hearing of Popitz's arrest, Schmitt sat si­ lent, shocked at the fate of his friend and at his own ig­ norance of the entire affair.67 He also feared that the Nazis might link him to the conspiracy because of his closeness to Popitz. Although in his report to Hitler the head of the SS security service, Ernst Kaltenbrunner, mentioned Schmitf s name, the professor was never in any real dan­ ger.68 Nonetheless, the aftermath of the July 20 plot caused 66 Hans Rothfels, The German Opposition to Hitler: An Assessment (Lon­ don, 1970), pp. 89-91. 67 Author's Interview with Professor Heinrich Popitz, son of Johannes Popitz, Freiburg, March 20, 1973. 68 Schwab, Challenge, p. 142.

PART IV

Schmitt much more anxiety than he had felt in 1936. Popitz had broken the Hobbesian covenant of protection and obedience; at great personal risk he had resisted the om­ nipotent leviathan. The failure of the plot and the conse­ quences suffered by the conspirators confirmed Schmitt in his belief that resistance to the modern state was futile. As the war drew to a close, Schmitt had no idea what new difficulties he might encounter, though he surely must have suspected that the Allies would hold him accountable for his Nazi collaboration. In April 1945, the Russians oc­ cupied Berlin and arrested Schmitt at his home. During several hours of interrogation, Schmitt told the Russians that his relationship with National Socialism could best be understood in reference to the experiments of the German scientist Max von Pettenkofer. Schmitt explained to his baffled interrogators that at the beginning of this century, Pettenkofer had argued that the susceptibility of a person to illness was more important than a bacillus in causing infectious disease. To prove his point, Pettenkofer stood before his students and drank a glass of water containing a culture of cholera bacteria; he remained healthy. "You see," Schmitt concluded, "I have done exactly the same thing: I drank of the Nazi bacillus, but it had not infected me."69 While it is unknown what effect this story had on the Russians, Schmitt was released and allowed to return home. The onset of denazification, however, meant that Schmitt would still have to account for his National Socialist career. The system used by the British and Americans to identify Nazis was the Fragebogen, a questionnaire requiring 131 answers about one's past that delved into personal as well as political matters.70 When Schmitt was required to fill out 69 Pieper, Autobiographische Aufzeichnungen, p. 198. This story has been confirmed by Schmitt. 70 A. J. Ryder, Twentieth-Century Germany: From Bismarck to Brandt (New York, 1973), pp. 468-473.

THE NAZI EXPERIENCE, 1933-1947

a Fragebogeti at the end of June 1945, he began to realize how difficult it would be for him to provide a satisfactory defense or explanation for his actions under the Nazi re­ gime. "I am a contemplative man," he reflected at the time, "and tend toward sharp formulations, but not toward the offense, also not toward the counteroffensive. . . . I am also weak at defense. I have too little practical interest in myself and too great a theoretical interest in the ideas of my opponents."71 As he had done with the Russians and would do frequently in the postwar era, he relied on anal­ ogies as a means of explanation. His case, he said in ref­ erence to an example from classical mythology, "is a wretched, shameful and yet authentic case of a Christian Epimetheus."72 Ignoring the warnings of his brother Pro­ metheus (Forethought) to refuse gifts from the gods, Epimetheus (Afterthought) accepted the first woman—Pan­ dora—together with her jar full of evils. Without sufficiently weighing the consequences, Schmitt had quickly suc­ cumbed to the tempting rewards offered by the Nazis. Meanwhile the Allies had established tribunals to scru­ tinize, categorize, and judge known or suspected Nazis. High-ranking officials, as well as many SS and Gestapo members, were placed under automatic arrest and sent to internment camps pending trial. Approximately two months before the trials of the major Nazi leaders were scheduled to begin at Nuremberg in November 1945, American sol­ diers showed up at Schmitt's home and placed him under arrest. They seized his files and carried off the magnificent private library he had collected over almost half a century. Schmitt had earlier shipped most of his papers to his birth­ place in Plettenberg, which allowed him to retain posses­ sion of them. When the soldiers finished loading their trucks, they asked Schmitt if he wanted to keep two family Bibles. Saddened at the loss of his cherished scholarly possessions, 71 n

Schmitt, Ex Captivitate Salus, pp. 10-11. Ibid., p. 12.

PART IV

Schmitt, who in his youth had expressed such deep reli­ gious sentiments, now responded, "No, take them." The preliminary report on Schmitt, based upon the American interrogations of him in October, contained om­ inous allegations. Even after 1936, the report stated, he continued to advocate totalitarianism and the Nazi domi­ nation of Europe. He had been, the interrogator noted, "very active in the party," the Nazi "official constitutional apologist," and "the most eminent legal exponent of the Nazi ideology."73 Erroneous statements in the report (e.g., that Schmitt had belonged to the left wing of the Center Party and since 1941 had been rector of the University of Strassburg) were overshadowed by the general conclusion that he had actually been the Nazi Kronjurist. All indications were that he would have to face a tribunal. But for more than a year Schmitt remained in two American internment camps awaiting a decision. During this long period of internment, which afforded him plenty of time for reflection, Schmitt began to write down his thoughts. He claimed that his statements were not intended to be either political or apologetic; as he put it, they do not belong on the streets or on the stage.74 Nonetheless, he was trying to explain his behavior in the Third Reich, and his explanation had a discernible defen­ sive tenor. Indeed, the drift of his writings seemed to in­ dicate that he anticipated a stern judgment. So long as he still sat "in the clutch of this earthly life," Schmitt wrote, he wanted to say a word to a few deceased and a few living friends, to his faithful students around the world, and es­ pecially to his daughter, Anima.75 The essence of his ex­ planation was that the two areas in which he was involved as a scholar, constitutional and international law, were in73 Preliminary Interrogation Report of Carl Schmitt, Berlin, October 18, 1947, Modern Military Branch, Military Archives Division, U.S. National Archives. 74 Schmitt, Ex Captivitate Salus, p. 77. 75 Ibid., pp. 77-78.

THE NAZI EXPERIENCE, 1933-1947

herently political; they were full of political dangers which no jurist could avoid. The scholarly work of someone in public law is determined by a distinct country, by distinct groups and powers, and by a distinct period of time. The "subject matter" from which a jurist develops his concepts and toward which he directs his attention "... bind him to political situations, where fortune or misfortune, victory or defeat also affect the scholar and decide his personal fate. . . ."76 In times of instability the scholar of public law suddenly finds that free thought is no longer possible and that his ideas are controlled by men to whom a free intellect is incomprehensible.77 Schmitt was actually saying that after the seizure of power his subject matter was defined and determined by the Na­ zis. Although he disapproved of the regime, he was, as a jurist, forced to deal with legal concepts within the confines of National Socialism. He often remarked that he was merely performing the function of a jurist in the same way that scientists, bureaucrats, and other professionals served the Third Reich in their respective areas of competency. He felt that those who asked why he did not resist, or at least refuse to cooperate with the tyrannical regime, did not understand his predicament during these years. "If the situation becomes so completely abnormal," he wrote, "and no one from the outside protects [an individual] from the terror from within, then he must determine for himself the limits of his loyalty, especially when the situation becomes so abnormal that one no longer knows the real position of his closest friend. The obligation to unleash a civil war, to engage in sabotage and to become a martyr has its limits."78 He did not, however, address the question of why he had not fled. While Schmitt personally found solace in such musing, the Allies would demand a more detailed accounting of 76

Ibid., pp. 55-56.

77 Ibid. 78

Ibid., pp. 18-21.

PART IV

the role he played in the Third Reich. Because of his rep­ utation and extensive publications, the legal section of the military governor's office took a special interest in Schmitt's case. As a result, he was transferred to Nuremberg at the end of March 1947, as a potential defendant in a war crimes trial. Schmitt's doubts about the impartiality of those who would judge him were reinforced when he came face to face with Robert Kempner, his interrogator at Nuremberg. Kempner was an emigre and former lawyer in the Prussian ministry of the interior who had lost his position when Papen instituted martial law in Prussia. Kempner consid­ ered the Reich takeover of the Prussian government a major turning point leading to the Nazi seizure of power, and he had not forgotten that Schmitt had defended Papen's ac­ tions before the supreme court.79 Kempner interrogated Schmitt in his cell over a period of weeks in an effort to determine the jurist's involvement in planning a war of aggression, in war crimes, and in crimes against humanity.80 Throughout these interroga­ tions, Schmitt denied KempnerxS charges that his writings on Grossraum had provided the theoretical foundations of Hitler's expansionist policies. Anyone who actually read his works, Schmitt retorted, could not possibly get this 79 Robert M. W. Kempner, "Man hatte Hitler stoppen konnen," Vorwarts, No. 4 (January 25, 1973), p. 17; Author's Interview with Kempner, Frankfurt, May 7, 1973. 80 In his book Das Dritte Reich im Kreuzverhor: Aus den unverojfentlichten Vernehmungsprotokollen des Anklagers (Munich, 1969), pp. 293-300, Kemp­ ner published excerpts from these interrogations under the subtitle "Hat Professor Carl Schmitt die Jugend vergiftet?" However, Kempner7S edited version of these interrogations is distorted and unreliable, because ques­ tions and answers from three separate days were spliced together, often out of sequence, with important information deleted. For the complete reports see Interrogation Reports of Carl Schmitt, Nuremberg, Office of U.S. Chief Counsel for War Crimes, Evidence Division, No. 1842 (April 3, 1947), No. 1992 (April 21, 1947), No. 2161 (April 29, 1947), Modern Military Branch, Military Archives Division, Record Group No. 238, U.S. National Archives.

THE NAZI EXPERIENCE, 1933-1947

impression.81 His writings were merely scholarly analyses of an existing situation and had nothing to do with plan­ ning or promoting aggressive wars. Regarding his work in National Socialist legal affairs, Schmitt maintained that he always wrote under the control of the party, and that his anti-Semitic remarks must also be viewed in this context. From the very beginning, Schmitt said, he had considered Nazi Jewish policies a great misfortune, and he was proud of the fact that after 1936 he no longer worked for the party.82 When asked whether he was ashamed of what he had written under the Nazis, Schmitt replied: "Today, cer­ tainly. . . . It is definitely horrible. Nothing else can be said about it."83 At one point, Schmitt referred to himself as an "intellectual adventurer" who develops his ideas and ex­ pands his knowledge through such adventures, but one who never attempts to evade responsibility for taking these risks. Whereupon Kempner interrupted, "But when what you call pursuit of knowledge ends in the murder of mil­ lions of people?" "Christianity," Schmitt quickly re­ sponded, "also ended in the murder of millions of men."84 Since most lines of questioning usually degenerated into exchanges of this type, it was unlikely that the issue of whether Schmitt's Nazi affiliations warranted prosecution could be resolved through such interrogations. Kempner, therefore, requested that Schmitt explain in writing whether he had promoted Hitler's Grossraumpolitik, as well as the extent to which his activities and publications related to punishable crimes. For someone who earlier stated that he was weak at defense, Schmitt proved quite capable of a meticulous re­ futation of the accusations which might have served as a basis for legal prosecution. Considering that he had to rely mostly on memory, the disquisitions he wrote were amaz81 82 83 84

Schmitt Interrogation, No. 1842, p. 1. Ibid., pp. 1-2. Ibid., No. 2161, p. 2. Ibid., No. 1992, p. 2.

PART IV

ingly detailed.85 Subsequent historical research has, in fact, shown that the information he provided was quite accur­ ate. After outlining his limited connections with the upper echelons of the party before 1936, he went on to explain that since that time he provided neither the government nor the party with advice or theories. Hitler's expansionist policies received their theoretical justification, not from his Grossraum concept, but from the Nazi racial doctrine of biological Lebensraum and from SS theorists. His own theory of Grossraum differed significantly from Lebensraum and was unrelated to the racial ideology; he was criticized for this and his work did not appear on the party list of approved books.86 He never attempted to analyze Nazi theories of expansion, because they were so "primitive," and because to do so would have also been exceptionally dangerous.87 One could relate his own concept to Hitler's policies, Schmitt argued, only if one used Grossraum as a catchword for every type of expansion.88 Schmitt claimed, moreover, that he never served in a decision-making capacity. As a scholar and publicist, he was tolerated because of his reputation; he had no impact on the plans of Hitler or other Nazi leaders and had no real influence within the totalitarian system. Although he was defending himself against specific ac­ cusations on which his fate might rest, and despite his complaints to Kempner that ". . . all previous interroga­ tions eventually ended in intellectual discussions," Schmitfs 85 See Schmitt, Beantwortung der Frage; and Beantwortung des Vorwurfs. A third disquisition requested by Kempner did not deal with Schmitfs case, but with the power of state secretaries in the Third Reich. See Carl Schmitt, StaatsrechtIiche Bemerkungen zu der mir gestellten Frage: Die Stellung des Reichsministers und Chefs der Reiehskanzlei, Nuremberg, April 28, 1947, later published as "Der Zugang zum Machthaber, ein zentrales verfassungsrechtliches Problem (1947)," in Aufstitze, pp. 430437. The other disquisitions have never been published. 86 Schmitt, Beantwortung der Frage, pp. 4-6. 87 Ibid., pp. 10-11. 88 Ibid., p. 11.

THE NAZI EXPERIENCE, 1933-1947

responses were to a certain extent intellectual discourses.89 The influence of theories and ideas, he wrote, cannot be judged merely in reference to decision-making positions. "The consequences of spoken, written, and published words are countless and incalculable."90 What a scholar relates as the result of his research and thoughts is intended as a point of departure for further scholarly thought and dis­ cussion. In this respect his own work had always been recognized as important. Unfortunately, many listeners and readers view theses and formulations not as scholarship, but as something with a practical application to their mo­ mentary goals and interests. This danger is especially great when these ideas concern law and politics. In times of peace and stability, authors have a good deal of flexibility in exercising their intellectual freedom, whereas in periods of instability there exists the danger that every public word is reduced to the level of ". . . quickly changing propa­ ganda slogans and, in the chaos, to nihilistic and destruc­ tive concepts."91 He, like the founders of his discipline, Jean Bodin and Thomas Hobbes, had experienced this problem and paid the price for it. Using a technological metaphor, Schmitt said that "every amplification is a dis­ tortion and also, in most cases, a falsification of meaning."92 This was the real context in which he felt his case should be evaluated.93 An author, Schmitt readily admitted, is indeed respon­ sible for every word he writes. But there are limits to what constitutes legal responsibility and to what can be deter­ mined through legal proceedings. For any judgment of the consequences of theses and opinions involves the very dif­ ficult question of establishing causal relationships. There are some historians, he pointed out, who would hold Rous89 Schmitt

Interrogation, No. 1842, p. 1. Schmitt, Beantwortung des Vorwurfs, p. 6. 91 Ibid., pp. 6-7. 92 Mf., p. 7. 90

93

Ibid.

PART IV

seau accountable for the Reign of Terror. The problem be­ comes even more complex in an age where "the psychotechnological machinery of modern propaganda" forms its own daily myths and just as quickly eliminates them again.94 "In every respect," Schmitt wrote, "I take the question of my responsibility quite seriously and repeat that it is in no way my intention to use the distinction between legal and nonlegal questions only as a loophole or excuse."95 He was quite aware that beyond the limits of what constitutes legal responsibility there does not begin a sphere of irrespon­ sibility or absolute security. But where criminal proceed­ ings are concerned the distinction between legal account­ ability and moral-ethical or historical responsibility remains crucial. For this very reason, his own case was quite com­ plicated, because, as he put it, "the deed for which I am being held responsible . . . is essentially the publication of scholarly opinions which have led to many fruitful discus­ sions."96 In the light of the massive destruction and unparalleled human suffering caused by a regime he had supported, Schmitt's concluding statement was shocking. In addition, the way he depicted his intellectual activity during the Third Reich was misleading. One could easily get the impression from these disquisitions that his works were abstract anal­ yses of political and legal subjects intended primarily for intellectual discussions among scholars. He conveniently forgot that before his rebuke in 1936 he had hoped that his works would influence political and legal developments, and that despite the distortion of his ideas, he thrived on the public attention he received as a result of his publica­ tions and activities within Nazi institutions. Nonetheless, Schmitt's statement was not inaccurate. The case against him actually did boil down to the influence of his ideas and writings. And moral responsibility aside, none of 94 95 96

Ibid., pp. 7-8. Ibid., p. 8. Ibid.

THE NAZI EXPERIENCE, 1933-1947

Schmitt's publications or activities constituted punishable crimes as precisely defined by the statutes on which the Nuremberg Trials were conducted. Kempner had reluctantly come to the same conclusion even before Schmitt handed him his final written disquis­ ition. At the end of the last interrogation on April 29, Kempner informed Schmitt that he would arrange for his release. Later Schmitt would compare the Nuremberg experience with other times in his life when he felt personally threat­ ened. The communist revolution in Munich, the murder of conservatives during the Rohm purge, the SD attack, the execution of Popitz, and the war crimes trial eventually turned into a litany he included in every discussion about his life. As he prepared to leave his cell at Nuremberg, Schmitt told Kempner that he would now retreat "into the security of silence."

EPILOGUE

AFTER his release from Nuremberg it seemed that Schmitt actually intended to remain within the "security of si­ lence." He did not return to Berlin, but instead went to his birthplace in Plettenberg, where his wife and daughter had since moved. The chances of someone with Schmitfs tainted reputation returning to university life were slight indeed. And whatever possibility might have existed disappeared when he refused to go through denazification because he considered the entire process meaningless in his particular case. His attitude was best summed up in a favorable news­ paper article that appeared later: "He could neither be nazified nor denazified."1 In any event, he was, at almost sixty years of age, nearing retirement, and he made no effort to regain his university chair. Supported mostly by a pension for his previous years of university service, he would spend the rest of his life in the Sauerland. These early years of postwar intellectual isolation were made all the more difficult by the death of his wife in 1950. However, after forty years of scholarly productivity Schmitt found it impossible to remain intellectually inactive. Even during his internment he had continued to write. But in the immediate postwar years it was exceptionally difficult for him to find a publisher. Not surprisingly, the first ar­ ticles he wrote after his release from Nuremberg appeared anonymously.2 For none of the questions about his rela­ tionship to National Socialism had been laid to rest, and any publication under his name was bound to create con­ troversy. True, he had never been charged at Nuremberg. 1

"Der Fall Carl Schmitt." See "Donoso Cortis in gesamteuropaischer Interpretation," Neue Ord­ nung, Jg. 3, Heft 1 (1949), pp. 1-15; and "Francisco de Vitorio und die Geschichte seines Ruhmes," Neue Ordnung, Jg. 3, Heft 4 (1949), pp. 289313. 2

EPILOGUE

But neither had he been exonerated. In the public eye, he was still the Kronjurist of the Nazi dictatorship. As the author of the first postwar monograph on Schmitt phrased it, "He was the only ingenious fascist in Germany at that time. . . . the one from whom all other fascist jurists cop­ ied."3 Thirty years later it would not be unusual to hear someone refer to Schmitt as "that war criminal." Schmitt had avoided legal prosecution, but the moral and historical responsibility he himself spoke of at Nuremberg was a burden he would have to bear for the rest of his life. When Schmitt began publishing under his own name in the 1950's the reaction, predictably, was immediate and hostile.4 Few were willing to acknowledge that Schmitt still had, or for that matter ever had, anything to offer the scholarly world. He was described as a solipsist, a Nietzschean nihilist, and "the intellectual prophet of National Socialism par excellence."5 His critics seemed less con­ cerned with what he was actually writing than they were with the fact that he was publishing at all. Is it any surprise, Walter Lewald asked indignantly, to hear the current out3 Karl Schultes, Der Niedergang des staatsrechtlichen Denkens im Faschismus: Die Lehren des Herrn Professor Carl Schmitt, Kronjurist der Gegenrevolution

(Weimar, 1947), p. 12. 4 Although Schmitt's postwar writings go beyond the scope of this study, they remain a significant area in which further research needs to be done. Schmitt's more important publications from this period are Der Nomos der Erde im Vdlkerrecht des Jus Publicum Europaeum (Cologne, 1950); Die Tyrannei der Werte: Uberlegungen eines Juristen zur Wert-Philosophie

(Stuttgart, 1960); Theorie des Partisanen: Zwischenbemerkungen zum Begriff des Politischen (Berlin, 1963); "Die vollendete Reformation: Bemerkungen und Hinweise zu neuen Leviathan-Interpretationen," Der Stoat, Band 4 (1965), pp. 51-69; Politische Theologie 11: Die Legende wn der Erledigung jeder politischen Theologie (Berlin, 1970). 5 Walter Lewald, "Carl Schmitt redivivus?" Neue Juristische Wochenschrift, Jg. 3 (1950), p. 377; Friedrich August von der Heydte, "Heil aus der Gefangenschaft? Carl Schmitt und die Lage der europaischen Rechtswissenschaft," Hochlandl Jg. 43 (1950/51), pp. 288-294; Erich Kaufmann, "Carl Schmitt und seine Schule: Offener Brief an Ernst Forsthoff," Deutsche Rundschau, Jg. 84, Heft 11 (October 1958), pp. 1013-1015.

EPILOGUE

cry to "crucify him"? "Is one supposed to forget what Carl Schmitt said and wrote after 1933?"6 But, in fact, the prob­ lem was not so much one of forgetting as it was one of formulating a detached evaluation of the man and his work. For the first postwar monographs on Schmitt interpreted him almost entirely in the light of the Nazi experience.7 He was made to appear, at best, as an opportunist and, at worst, as one who intentionally undermined parliamentary government in Germany and saw his ideas come to fruition in the Nazi Machtergreifung. Rarely was Schmitt given credit for his substantial pre-Nazi contributions to legal and po­ litical thought. There continued to exist a small group of friends, former colleagues, and students (e.g., Hans Barion, Ernst Forsthoff, Werner Weber, Piet Tommissen, Rudiger Altmann, and Roman Schnur) who were willing to acknowledge Schmitfs intellectual importance in the face of such overwhelming criticism. But when several of them published a Festschrift in honor of Schmitt's seventieth birthday, they found that they had created a scandal.8 The widespread condemnation of Schmitt was accom­ panied by what might be called an attempt at intellectual disassociation. This process had started shortly after Schmitt began collaborating with the Nazis and continued into the postwar period. Carl J. Friedrich, who had praised Schmitf s work on presidential emergency powers in 1930, claimed in 1937 that Schmitt's ideas on the subject were "marred by his preoccupation with 'political' considerations of the moment."9 And by 1941, Friedrich merely labeled Schmitt's 6

Lewald, "Carl Schmitt redivivus?" p. 377. Fijalkowski, Die Wendung zum Fiihrerstaat; Krockow, Die Entscheidung; Pattloch, Ordnung und Ortung. 8 See Festschrift fiir Carl Schmitt zum 70. Geburtstag, ed. Hans Barion, Ernst Forsthoff, Werner Weber (Berlin, 1959). See also Adolf Schule, "Eine Festschrift,"Juristenzeitung, Jg. 14, No. 22 (November 20, 1959), pp. 729731; and "Zeit des Partisanen," Der Spiegel, Jg. 32, No. 28 (July 10, 1978), pp. 138-139. 9 Carl J. Friedrich, Constitutional Government and Politics: Nature and De­ velopment (New York, 1937), pp. 534-535. 7

EPILOGUE

Die Diktatur as a "partisan tract."10 Equally noticeable was

the change of attitude displayed by Franz Neumann. Dur­ ing Weimar he had considered many of Schmitt's ideas on the problems of the republic quite perceptive. Neumann clearly stated this in a letter to Schmitt at the end of 1932, wherein he used such concepts as "friend-enemy" and the "equal chance" when analyzing Weimar's final crisis.11 In 1942, however, when he published Behemoth, his important study on the Nazi state, Neumann presented Schmitt as an intellectual forerunner of Nazism and his friend-enemy thesis as ". . . a doctrine of brute force in its most striking form, one that sets itself against every aspect and act of liberal democracy and against our whole traditional con­ ception of the government by law."12 Similarly, the editors of the 1955 edition of the collected works of Walter Ben­ jamin omitted those footnotes in which Benjamin acknow­ ledged the importance of Schmitt's ideas.13 This was done despite the fact that in his autobiographical fragment, writ­ ten shortly before his death in 1940, Benjamin had again cited Schmitt as a significant intellectual influence on his own thought.14 In the postwar atmosphere those who had merely studied with Schmitt were also suspect. It appeared that any intellectual affiliation with Schmitt, even indirectly through his former students, might taint one's own rep­ utation.15 10 Carl J. Friedrich, Constitutional Government and Democraqf Theory and Practice in Europe and America (Boston, 1941), p. 627. 11 Franz Neumann to Schmitt, September 7, 1932, Schmitt, Personal Papers. 12 Neumann, Behemoth, pp. 42-45. For a more detailed discussion of the changing attitudes toward Schmitt and his ideas held by Friedrich and Neumann see George Schwab, "Schmitt Scholarship," Canadian Journal

of Political and Social Theory/Revue canadienne de thiorie politique et sociale,

Vol. 4, No. 2 (Spring-Summer 1980), pp. 149-155. 13 Schriften, ed. Theodor W. Adorno and Gretel Adorno (Frankfurt, 1955); Hans-Dietrich Sander, Marxistische ldeologie und allgemeine Kunsttheorie (Tubingen, 1975), p. 173. 14 Unseld, Zur Aktualitat Walter Benjamins, pp. 46-47. 15 Riidiger Altmann, "Macht die Verfassung noch den Staat? Carl Schmitt wird neunzig," Frankfurter Allgemeine Zeitung, No. 143 (July 8, 1978).

EPILOGUE

Schmitf s critics were not the only ones involved in ma­ nipulation of the past. Concerned with his reputation and the judgment of history, Schmitt made a conscious effort to ignore his writings from the National Socialist era. The volume of collected writings he published in 1958 included many of his more important Weimar works, as well as a few abstract essays on the concept of the state which he wrote during and after the war.16 But conspicuous by their absence were the works he had written in the service of the Nazi state. One of the most striking aspects of this volume was that it did not contain a single piece he wrote between the spring of 1933 (the beginning of his collabo­ ration) and 1941. And as critics quickly pointed out, this was not the first time Schmitt had exercised such selectivity in publishing a collection of his writings.17 An earlier vol­ ume, published in 1940 with the subtitle "The Struggle with Weimar-Geneva-Versailles," had been compiled with an eye toward making Schmitt's writings acceptable to the National Socialists.18 At that time, Schmitt was still trying to bury part of his Weimar past, and this collection omitted those works which might have raised questions with the Nazis. Interestingly, many of the writings omitted in the 1940 volume, most notably Legalitat und Legitimitat, consti­ tuted major portions of the second collection. Schmitt, of course, had his justifications for this postwar publication. He felt that, despite his previously recognized contributions to political and legal thought, his works were now being judged solely from the perspective of what he did and wrote under the Nazi regime. One of his perpetual complaints was that many postwar writers approached his works with the preconceived notion that he had been a Weimar prophet of National Socialism. He hoped that this collection of his writings might counterbalance the distor­ tion of his ideas and the popular myths about his previous 16

Schmitt, Aufsatze. Sontheimer, "Carl Schmitt," pp. 757-758. 18 Schmitt, Positionen und Begriffe.

17

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political activity. Equally important, he thought that many of his Weimar constitutional and political ideas were quite applicable to the situation in postwar Europe. In the fore­ word to this publication, Schmitt noted correctly that "the problems of negative majorities and governmental stabil­ ity" as well as the "limits of constitutional change and the question of the defender of the constitution" were still cru­ cial issues. He cited the 1948 seizure of power by the Czech communists as a specific example of the relevance of the theory of the "equal chance" embodied in his Legalitiit und Legitimitcit .19 But the appearance of this volume did little to alter the general image of Schmitt as an intellectual cha­ meleon who adjusted his writings to suit changing political conditions. Instead of leading to the rehabilitation of his reputation, Schmitt's prolific postwar writings seemed only to keep alive the dispute surrounding him. Eventually he became one of the most controversial figures in twentieth-century Germany. For though the hostility toward Schmitt had not diminished, neither had the interest in him and his ideas, as he remained the subject of an endless flow of literature. In the 1950's alone there were more than eighty articles dealing specifically with Schmitt, and his name and ideas were cited in over a hundred other publications of a more general nature. Andby the late 1960's this enduring interest had led to the publication of new editions of several of his more important Weimar writings. Beginning at this time and continuing through the following decade there was also an upsurge of interest in Schmitt on the part of scholars and writers outside Germany. Works by and about Schmitt were translated into several foreign languages, including Japanese and Korean.20 19

Schmitt, Aufsiitze, pp. 7-8. For an almost complete listing of the works on Schmitt and of his writings translated into foreign languages see Piet Tommissen, "CarlSchmitt-Bibliographie," Festschrift, pp. 298-330; "Erganzungsliste zur CarlSchmitt-Bibliographie vom Jahre 1959," Epirrhosis, pp. 748-778; "Zweite 20

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Amid all the criticism there also emerged eventually a few encouraging signs for Schmitt. Studies written in the 1960's by Hasso Hofmann and George Schwab indicated that the passage of time had finally made it possible for some scholars to develop a more detached perspective on Schmitt.21 While these authors remained highly critical of the compromises Schmitt made during the National So­ cialist era, they did not allow this phase in his writing to distort their interpretations of his earlier works. Instead, they analyzed Schmitt's ideas in the context of the changing legal and political problems he confronted at different stages in his life. In doing so Hofmann and Schwab discredited the longstanding assumption that Schmitt's Weimar works were intended to pave the way for the one-party state. Schwab in particular offered ample evidence that during the 1920's Schmitf s ideas were in harmony with the Wei­ mar constitution. As one reviewer wrote in reference to these studies, "the period of one-sided and complete con­ demnation, negation, and extensive attempts at refutation appears to have ended. . . Z'22 Nevertheless, Schmitf s hope that such publications would soon lead scholars in general to reassess their perceptions of him proved unfounded. For these revisionist interpre­ tations have still not dispelled the traditional myths about Schmitt which are so deeply embedded in the minds of some scholars and so widely dispersed throughout the his­ torical literature. The 1973 edition of Karl Bosl's biograph­ ical dictionary still described Schmitt as one who prepared the way for the Hitlerian total state.23 Ten years after Schwab's study, articles in major historical journals continued to inFortsetzungsliste der C S -Bibliographie vom Jahre 1959," Revue europienne des sciences sociales, Tome XVI, No 44 (1978), pp 193-238 21 Schwab, Challenge, Hofmann, Legitimitat gegen Legalitat 22 See Helmut Rumpf's review of Schwab's book in Die Offenthche Verwaltung, Heft 23 (December 1971), pp 827-828 23 Btographtsches Worterbuch zur deutschen Geschichte, ed Karl Bosl (Mu­ nich, 1973), ΠΙ, pp 2523-2524.

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terpret Schmitt as a conservative revolutionary and as an exponent of an irrational volkisch philosophy who at­ tempted to undermine the Weimar Republic.24 Evidently, the French sociologist Julien Freund was correct when, al­ most two decades ago, he concluded that it was best ". . . to recognize that Carl Schmitt is controversial and will al­ ways remain controversial."25 Although differing interpretations of Schmitfs prolific writings are to be expected, the continuing controversy surrounding him can be attributed mostly to the political choices he made between 1933 and 1936. Unquestionably, 1933 was a crucial turning point in his life which no his­ torian can ignore. I have already said a great deal about this aspect of the man and his work in an effort to explain the personal motives and political circumstances which brought him into the service of National Socialism. While initially Schmitf s collaboration was based in part on a sin­ cere hope of directing constitutional developments in the Third Reich toward a more conservative and less radical course, it cannot be denied that his actions were also mo­ tivated by self-interest. Not only did he compromise in order to protect himself personally and professionally, but he was quickly seduced by the rewards offered him by the new system. He relished the prospect of becoming the Kronjurist and thrived on the public attention he received in the early stages of the regime. Later, when threatened by the ideological purists in the party, Schmitt took up the anti-Semitic cause as a means of proving his ideological conversion. Fear, ambition, and vanity each played a role in determining the way Schmitt reacted to the changing 24 Greiffenhagen, "Conservatism," p. 616; and Puhle, "Conservatism," p. 709. See also the critical review of Schwab's translation of The Concept of the Political by R. Judson Mitchell in Perspective (January/February 1977), pp. 16-17. 25 See Julien Freund's preface to Francis Rosenstiel's Le Principe de supranationaliti: Essai sur Ies rapports de la politique et du droit (Paris, 1962), pp. 15-16.

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circumstances under which he lived and worked during these years. My purpose in describing the various moti­ vations and events which led Schmitt to make such com­ promises was to try to understand his behavior, not to excuse it. For his writings and actions during this phase were indeed reprehensible. Schmitt's Nazi career definitely revealed a personal weakness so far as moral principles are concerned. But despite these compromises, Schmitt had neither paved the way for the Nazis, shared their ideolog­ ical beliefs, nor provided the legal foundations for the Nazi state, as often alleged. It must also be remembered that Schmitt's ideas were developed in response to the changing political and legal problems of four distinct political sys­ tems. Born in the era of Bismarck, Schmitt published his first book four years before the outbreak of World War I, and he was still writing almost a half century after the Nazi seizure of power. His works should be judged in the con­ text in which they were written; one cannot merely search backward into the Weimar Republic in order to discover some presupposed roots of what he wrote during the Third Reich. To allow Schmitt's Nazi collaboration to overshadow all other aspects of his life and work would create a dis­ torted image of an important historical figure. As Helmut Rumpf recently pointed out, Schmitt's Nazi involvements in no way diminish his significance in the field of German political and legal theory.26 Schmitt's place in German intellectual history is firmly established. He was one of the most respected and widely read theorists of the Weimar Republic. Few of his scholarly contemporaries were so prolific, offered so many original, stimulating ideas, or provided such penetrating analyses of so many pressing political and legal questions. For decades, his writings have been cited extensively and his ideas analyzed by scholars in countless publications. Although his ideas and person26 Helmut Rumpf, "Carl Schmitt und der Faschismus," Der Staat, Band 17, Heft 2 (1978), pp. 242-243.

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ality have been subjected to virulent attacks by certain writ­ ers, his thoughts have never ceased to command respect among other intellectuals. Even some of Schmitt's harshest critics often use the word "brilliant" when describing him.27 Moreover, many of the ideas Schmitt developed in the 1920's and early 1930's have retained their significance. When the Germans were in the process of establishing a constitutional democracy after World War II, they con­ fronted many of the same political and legal questions Schmitt had wrestled with during the Weimar Republic. And despite the erroneous allegation that Schmitfs theo­ ries had been directed at undermining the Weimar consti­ tution, several of his ideas on constitutional law and gov­ ernment were incorporated in the Bonn constitution. During Weimar, Schmitt was one of the few jurists to argue in favor of limiting the constitutional changes which could be instituted through the amendment process. He held that only individual laws could be altered through amendments and that the essence of the constitution remained inviol­ able. The Bonn constitution states explicitly that an amend­ ment affecting the federalist nature of the government or the basic principles enumerated in Articles 1 and 20 "is inadmissible."28 Article 1 deals with the basic rights of cit­ izens and Article 20 affirms that the Federal Republic is a democratic state in which all authority emanates from the people.29 One of the points Schmitt emphasized during Weimar's final crisis was that anti-constitutional parties must be denied the "equal chance" to acquire power legally. And Article 18 of the Bonn constitution states that whoever abuses his freedoms "in order to attack the free democratic basic order, forfeits these basic rights."30 The federal constitu­ tional court has the authority and obligation of pronounc27

Craig, Germany, p. 494; Ebenstein, Man and the State, pp. 294-295. Basic Law for the Federal Republic of Germany, in Documents of Ger­ man History, ed. Louis L. Snyder (New Brunswick, N.J., 1958), p. 518. 29 Ibid. pp. 501, 505. 30 Ibid., p. 504. 28

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ing on the constitutional legality of political parties. And in the 1950's the courts banned both the neo-Nazi Socialist Reich Party and the German Communist Party.31 The framers of the Bonn constitution essentially agreed with Schmitt's argument that no constitutional system should provide the legal means for its own destruction. The questions of emergency powers and the Ausnahmezustand, essential parts of Schmitf s constitutional theory, were intentionally ignored by the framers of the Bonn con­ stitution. The abuse of Article 48 by Hitler, combined with the widespread belief that this constitutional provision was a major reason for the collapse of Weimar, inhibited for many years any serious discussion of emergency powers in the new German democracy. Yet, this important aspect of Schmitt's constitutional theory had not lost its relevance. Twenty years after the founding of the Federal Republic, Karl Dietrich Bracher, a relentless critic of Schmitt's ideas on the Ausnahmezustand, noted: "In fact, hardly any other aspect of political theory and constitutional practice is as hotly debated today as the question of establishment and extension, interpretation and political justification of an emergency regime, and its relationship to democracy and the constitution."32 While writers such as Bracher opposed an emergency law, arguing that Article 48 helped under­ mine the democratic order of Weimar, others disagreed. Even Carl Landauer, a scholar who had to flee Nazi Ger­ many, recognized the need for such a law and denied that Article 48 had led to the demise of Weimar. Reflecting the realism that was inherent in Schmitf s thoughts on this question, Landauer wrote: "If there is no law, either the executive or—more likely—the military commanders will take the measures they deem necessary [in a state of emer31

Ryder, Germany, p. 493. Karl Wetrich Bracher, The German Dilemma: The Relationship of State and Democracy (New York, 1975), p. 278. 32

EPILOGUE

gency]. . . Z'33 Though he made no mention of Schmitt, Landauer also basically agreed with Schmitt's latitudinarian approach to emergency powers. "Safeguards against the misuse of emergency powers are very necessary," Lan­ dauer stated, "but any attempt to make these safeguards airtight will frustrate the purpose of the law.//34 Throughout the Weimar Republic, Schmitt contended that the use of Article 48 was vital to the survival of the state and consti­ tution. And in 1960, when the Bonn government presented its first draft of emergency legislation, its official declaration stated: "There can be no doubt today that without Article 48 the Weimar republic could not have existed for fourteen years. . . ."3S After almost a decade of heated discussion, an emergency law was passed in 1968. From his earliest writings under the monarchy, the state has remained the crucial element in Schmitf s thought. Only the state can guarantee the basic human and societal re­ quirements of order, peace, and stability, which are pre­ requisites for freedom and cultural development.36 In his Weimar writings he expanded upon this basic idea, arguing that in order to fulfill these objectives the state must be able to distinguish friend from enemy and have the power to take appropriate action against the enemy. The state must also represent the interests of the nation as a whole and not merely sections of it. Thus, for Schmitt the state was the decisive political authority within society.37 Under a constitutional system, the state must determine the ene­ mies of the constitution and prevent their acquisition of power. And the last work Schmitt ever wrote, "Die legale Weltrevolution" (The Legal World Revolution), showed that 33 Carl Landauer, Germany: Illusions and Dilemmas (New York, 1969), p. 302. * Ibid., pp. 301-302. 35 Schwab, Challenge, pp. 42-43. 36 Rumpf, Schmitt und Hobbes, pp. 109-110. 37 Schwab, Challenge, pp. 52, 55-59.

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his political and legal philosophy had not changed fun­ damentally since the Weimar Republic.38 In his swan song, as he called it, Schmitt again warned against the potential destruction of a constitutional system through legal means. He noted that the Spanish communist Santiago Carrillo, like many contemporary Marxists, had recently acknowledged that the method of violent, illegal revolution of the Lenin-Trotsky variety had become ob­ solete in modern industrial societies. The communists learned from Mussolini and Hitler that a revolution will only succeed through peaceful, legal means, which re­ quires control of the state.39 Schmitt took a great deal of satisfaction in pointing out that in his book on Eurocom­ munism, Carrillo not only recognized the state as the piv­ otal institution but used the word "state" countless times in a very positive sense.40 The state was no longer the object to be destroyed; it had become the bearer of "legality" through which the revolutionary transformation of society would be realized. The revolutionary process would be facilitated, Schmitt emphasized, by the "political premi­ ums" which accompany the legal possession of power, including control over the military, police, bureaucracy, and finance, and the authority to interpret changing cir­ cumstances to the advantage of the group in power. Those who possessed legality and these "political premiums" would have fantastic possibilities for creating new situa­ tions and producing faits accomplis.41 Revolutionaries, of the right or the left, who managed to acquire such legal control could alter the entire constitutional system in order to fulfill their political or ideological objectives.42 Reiterating a theme 38 Carl Schmitt, "Die legale Weltrevolution: Politischer Mehrwert als Pramie auf juristische Legalitat und Superlegalitat," Der Stoat, Band 21, Heft 3 (1978), pp. 321-339. 39 Ibid., pp. 321-322. 40 Ibid., p. 322. 41 Ibid., pp. 322-323. 42 Ibid., p. 325.

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from his Weimar writings, Schmitt argued that the threat of legal revolution would not be eliminated until the "equal chance" was denied to revolutionary parties and until the "inviolability" of the essence of a constitution was de­ creed.43 Shortly after he wrote this article, Schmitt celebrated his ninetieth birthday on July 11,1978. And though thirty-five years had passed since the end of World War II, the con­ troversy surrounding him had not ended. For the balanced treatment Schmitt received in a few newspaper and journal articles marking this occasion was offset by the impas­ sioned page-length assault on his ideas and character pub­ lished in the Suddeutsche Zeitung.44 But over the years Schmitt had come to expect such criticism. In fact, ever since he returned to Plettenberg in the late 1940's, he regarded him­ self as an intellectual in exile, a role he seemed to play with pride. He compared his fate to that of Machiavelli and Hobbes, two theorists who had to endure similar ostracism despite their significant intellectual contributions. Schmitt even referred to his house as San Casciano, the place where Machiavelli lived while in exile after losing favor with the Medici family. Although irritated, at times angered, by the perpetuation of what he considered myths about him and his ideas, Schmitt nonetheless received immense gratifi­ cation from the fact that he had become a controversial historical figure. Disturbed as he was about his tarnished reputation, he knew that at least he would not soon be forgotten. « Ibid., pp. 330-336, 338. u Altmann, "Maeht die Verfassung"; Rolf Schroers, "In der Landschaft des Verrats: Zum 90. Geburtstag von Carl Schmitt (11.VII. 1978)," Merkur: Deutsche Zeitschrift fiir europaisches DetAen, Jg. 32, Heft 7 (July 1978), pp. 735-738; Wilfried von Bredow, "Carl Sehmitt lesen," Liberal, Jg. 20, Heft 6 Qune 1978), pp. 432-444; Robert Leicht, "Ein Staatsreeht ohne das Recht: LJber die Maehtphantasien eines Unpolitischen," Siiddeutsche Zeitung, No. 154 Guly 8-9, 1978), p. 102.

BIBLIOGRAPHY

I. ARCHIVES AND DOCUMENT COLLECTIONS A. PERSONAL PAPERS OF CARL SCHMITT, PLETTENBERG-PASEL

Although Schmitt has not made his papers available to histo­ rians, he did grant me access to important portions of his files, and copies of these documents are in my possession. B. PERSONAL PAPERS OF WALDEMAR GURIAN, in the possession

of Mrs. Edith Gurian, South Bend, Indiana C. BUNDESARCHIV, KOBLENZ

Reichskanzlei, 1919-1933, R-43-I, Nos. 1309-1310,1457,1864-1865, 1869-1870, 2300. Reichskanzlei, 1933-1945, R-43-II, Nos. 495, 913, 1309, 1509. Stellvertreter des Reichskanzlers, Vizekanzlei von Papen, R-53, No. 77. Reichsministerium des Innern, Staatsskretaer Pfundter, R-18, No. 5436. Politisches Kolleg, R-118, Nos. 21, 28, 63. Akademie fiir Deutsches Recht, R-61, Nos. 64, 78, 80, 84, 88,109, 208. Reichsministerium fiir Wissenschaft, Erziehung und Volksbildung, 1934-1945, R-21, No. 144. Handakten Dr. D. Arian, Kleine Erwerbung, No. 337-1. Nachlasse: Moritz Julius Bonn, Nos. 49, 50, 56. Hans Frank. Wilhelm Freiherr von Gayl, Nos. 4, 7, 14, 31, 36-39, 43, 45. Erich Koch-Weser, No. 40. Friedrich Saemisch, No. 68. Friedrich Sieling, No. 484. Paul Silverberg, No. 417. Richard Thoma, No. 47. D. INSTITUT FOR ZEITGESCHICHTE, MUNICH

Sicherheitsdienst des RFSS SD Hauptamt (1936), PA 651C, Schmitt, Karl Dr. Prof., AKZ 4062/68, Fa 503, Nos. 1-2. Copies of documents located at the Wiener Library, London.

BIBLIOGRAPHY

Rosenberg Akten, 62, MA-129/3, 47566; 67, MA-129/5, 50343. Rosenberg Akten (II), 76, MA 251 (22-23); NSDAP (III), 83, MA603, 20363-20382; NSDAP (IV), 24, MA-1163, 95620-95622. E. BAYERISCHEN HAUPTSTAATSARCHIV, MUNICH

Rihse Sammlung, Carl Schmitt, No. 5153. F. GEHEIMES STAATSARCHIV, BERLIN

Hochschule fur Politik, Rep. 303, Nos. 168-169,172-173,181, 244, 246, 265. Preussisches Staatsministerium, Rep. 90, No. 13. Ministerium fiir Wissenschaft, Kunst, und Volksbildung, Rep. 76, No. 46. G. U.S. DOCUMENT CENTER, BERLIN

Personalakte (Sch-32), Party Records Central Munich. Party Records Gau Koln-Aachen. NSD Dozentenbund-Reichsfachschaft, I, N.S. Lehrerbund. H. BUNDESARCHIV-MILITARARCHIV, FREIBURG

Nachlass Kurt von Schleicher, N42, Nos. 7, 22, 31. I. U.S. NATIONAL ARCHIVES, WASHINGTON, D.C.

Records of Nazi Cultural and Research Institutes, Akademie fur Deutsches Recht, T-82, Roll-23, Serial-28, Reel-806; Roll-24, Serial, 29, Reel-807 (Microfilm). Preliminary Interrogation Report of Carl Schmitt, Berlin, October 18,1947, Modern Military Branch, Military Archives Division. Interrogation Reports of Carl Schmitt, Nuremberg, Office of Chief Counsel for War Crimes, Evidence Division, No. 1842 (April 3,1947), No. 1992 (April 21, 1947), No. 2161 (April 29, 1947), Modern Military Branch, Military Archives Division, Record Group 238. II. INTERVIEWS AND CORRESPONDENCE My most important interviews were with Carl Schmitt in 1972, 1973, and 1978; and I have maintained a regular correspondence with him from-1971 to the present. Several of Schmitfs acquaint-

BIBLIOGRAPHY

ances, contemporaries, and students also provided valuable in­ sights and information: Dr. Rudiger Altmann Professor Harold Deutsch Professor Felix Gilbert Edith Gurian Professor Ferdinand Hermens Robert M. W. Kempner

Otto Knab Professor Heinrich Popitz Professor Charles Robson Dr. Helmut Rumpf Professor Ulrich Scheuner

III. PUBLISHED PRIMARY SOURCES A. DOCUMENTS

Ball, Hugo, Briefe, 1911-1927, Einsiedeln, 1957. Baynes, Norman H., ed., Speeches of Adolf Hitler, April 1922-August 1939, New York, 1964. Hoche, Werner, ed., Die Gesetzgebung des Kabinetts Hitler, Vol. I., Berlin, 1933. Huber, Ernst R., ed., Dokumente zur deutschen Verfassungsgeschichte, Dokumente der Novemberrevolution und der Weimarer Republik, 1918-1933, Vol. Ill, Stuttgart, 1966. Hiirten, Heinz, ed., Deutsche Briefe: Ein Blatt der katholischen Em­ igration, 1934-1935, Vol. I, 1936-1938, Vol. II, Mainz, 1969. Preussen contra Reich vor dem Staatsgerichtshof: Stenogrammbericht der Verhandlungen vor dem Staatsgeriehtshof in Leipzig vom 10. bis 14. und vom 17. Oktober 1932, Berlin, 1933. B. BOOKS AND MEMOIRS

Anschiitz, Gerhard, Kommentar zur Reichsverfassung, 14th ed., 1932. , Die Verfassung des Deutschen Reichs vom 11. August 1919,

Ilth ed., Berlin, 1929. Anschiitz, Gerhard et al., ed., Der deutsche Fdderalismus: Die Diktatur des Reichsprasidenten: Verhandlungen der Tagung der deutschen Staatsreehtslehrer zu Jena am 14. und 15. April 1924, Berlin, 1924. Apelt, Willibalt, Jurist im Wandel der Staatsform: Lebenserinnerungen, Tubingen, 1965. Apfel, Alfred, Behind the Scenes of German Justice: Reminiscences of a German Barrister, 1882-1933, London, 1935.

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Kelsen, Hans, Soziologie und der juristische Staatsbegriff: Kritische Untersuehung des Verhaltnisses von Staat und Recht, Tiibingen, 1922. , Staatsform und Weltanschauung, Tubingen, 1933. , Wer soil der Hiiter der Verfassung sein?, Berlin, 1931. Kessler, Harry Graf, Tagebucher, 1918-1937, Frankfurt am Main, 1961. Kirchheimer, Otto, Politics, Law, and Social Change: Selected Essays of Otto Kirchheimer, ed. Frederic S. Burin and Kurt L. Shell, New York, 1969. Koellreutter, Otto, Der deutsche Fiihrerstaat, Tubingen, 1934. , Deutsches Verfassungsrecht: Ein Grundriss, Berlin, 1938. , Volk und Staat in derWeltanschauung des Nationalsozialismus,

Berlin, 1935. Mannheim, Karl, From Karl Mannheim, ed. Kurt Wolff, New York, 1971. , Ideology and Utopia: An Introduction to the Sociology of Knowl­ edge, New York, 1936. Michels, Robert, Zur Soziologie des Parteiwesens in der modernen Demokratie: Untersuchungen iiber die oligarchischen Tendenzen des Gruppenlebens, ed. Werner Conze, 2nd ed., Stuttgart, 1970. Nawiasky, Hans, Die Stellung der Regierung im modernen Staat,

Tubingen, 1925. Neumann, Sigmund, Diedeutschen Parteien: Wesen und Wandel nach dem Kriege, Berlin, 1932. Niekisch Ernst, Gewagtes Leben: Begegnungen und Begebnisse, Co­ logne, 1958. Papen, Franz von, Memoirs, London, 1952. Pieper, Josef, Noch wusste es niemand: Autobiographische Aufzeichnungen 1914-1945, Munich, 1976. Salomon, Ernst von, The Answers, London, 1954. Schmahl, Eugen, Der Aufstieg der nationalen Idee, Stuttgart, 1933. Schreiber, Georg, Regierungohne Volk: EinepositiveKritik, Cologne, 1932. , Zentrum und Reichspolitik: Ein politisches Handbuch in Frage und Antwort, Cologne, 1930. Smend, Rudolf, Verfassung und Verfassungsrecht, Munich, 1928. Stier-Somlo, Fritz, Politik, Leipzig, 1911. Wohlgemuth, Heinrich, Das Wesen des Politischen in der heutigen

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deutschen neoromantischen Staatslehre: Ein methodenkritischer Beitrag zu seiner Begriffsbildung, Erlangen, 1932. Das Zentrum, Mitteilungsblatt der Deutschen Zentrumspartei,

Berlin, 1933. Ziegler, Heinz O., Autoritarer oder totaler Staat, Tubingen, 1932. C. ARTICLES

Aris, Reinhold, "Krisis der Verfassung: Die gegenwartige Situa­ tion," Neue Blatter filr den Sozialismus, Jg. 3, Heft 1 (January 1932), pp. 19-29. , "Politik und Ethik: Kritische Anmerkungen zu Carl Schmitts politischer Theorie," Neue Blatter fiir den Sozialismus, Jg. 3, Heft 10 (October 1932), pp. 542-548. Ball, Hugo, "Carl Schmitts Politische Theologie," Hochland, Band 2 (April-September 1932), pp. 263-286. Bargenhusen, Jan, "Termin: 6. November," Die Weltbuhne, Jg. 28, No. 34 (1932), pp. 266-269. Best, Werner, "Volkische Grossraumordnung," Deutsches Recht, Jg. 10, Heft 25 Gune 22, 1940), pp. 1006-1007. Blei, Franz, "Ein deutsches Gesprach," Neue Schweizer Rundschau, Juliheft (1932), pp. 518-533. , "Der Fall Carl Schmitt, Von einem, der ihn kannte," Der Christliche Standestaat, December 25, 1936. Brock, Erich, "Der Begriff des Politischen: Eine Auseinandersetzung mit Carl Schmitt," Hochland, Jg. 29, Heft 11 (1932), pp. 394-404. Costamagna, Carlo, "Autarkie und Ethnarkie in der Volker- und Staatsrechtslehre der Neuordnung," Zeitschrift der Akademie fiir Deutsches Recht, Jg. 8, Heft 13 (July 1, 1941), pp. 201-203. Diener, Roger, "Reichsverfassung und Grossraumverwaltung im Altertum," Reich, Volksordnung, Lebensraum, I (1941), pp. 177229. Eck, Thomas, "Das Volk als Hiiter der Verfassung," Neue Blatter fiir den Sozialismus, Jg. 3, Heft 7 (July 1932), pp. 347-355. "Eine peinliche Ehrenrettung," Das Schwarze Korps, Folge 49, De­ cember 3, 1936. "Es wird immer noch peinlicher!" Das Schwarze Korps, Folge 50, December 10, 1936. Frank, Hans, "Zum Schluss," Deutsche Juristen-Zeitung, Jg. 41, Heft 24, (December 15, 1936), pp. 1449-1452.

BIBLIOGRAPHY

Friedrich, Carl J., "Dictatorship in Germany?" Foreign Affairs, Vol. 9, No. 1 (October 1930), pp. 118-132. Gerlach, Hellmut v., "Schleicher und sein Stahlhelm," Die Weltbiihne, Jg. 28, No. 36 (1932), pp. 342-345. Griineberg, Horst, "Diktatur ante portas!" Die Tat, Jg. 22, Heft 3 Oune 1930), pp. 194-202. , "Die foderalistische Kulisse," Die Tat, Jg. 23, Heft 4 (July 1931), pp. 286-303. , "Mittelstandspolitik—Staatspolitik," Die Tat, Jg. 23, Heft 3 Oiune 1931), pp. 191-212. , "Warum Diktatur?" Die Tat, Jg. 22, Heft 5 (August 1930), pp. 321-332. , "Zur Theorie des Antiparlamentarismus," Die Tat, Jg. 22, Heft 2 (May 1930), pp. 115-123. Griiter, Friedrich, "Der Rechtsstaat in der Krise," Deutsches Volkstum, 1 Aprilheft (1932), pp. 260-265. Gtinther, Albrecht Erich, "Sollen die Nationalsozialisten 'regieren'?" Deutsches Volkstum, 2 Maiheft (1932), pp. 381-385. Gurian, Waldemar, "Ein Traum von Dritten Reich," Hochland, Band 22 (1924/25), pp. 237-242. ,"Zur Soziologie der Wahlpropaganda," Archiv fir Politik und Geschichte, Vol. 3 (1925), pp. 585-589. Hartung, Fritz, "Staatsgefuge und Zusammenbruch des Zweiten Reiches," Historische Zeitschrift, Band 151 (1935), pp. 529-544. Hefele, Hermann, "Zum Problem einer Politik aus dem katholischen Glauben," Abendland, Jg. 2, Heft 7 (April 1927), pp. 195-197. Heller, Hermann, "Bemerkungen zur staats- und rechtstheoretischen Problematik der Gegenwart," Archiv des offentliehen Rechts, Band 16, Heft 3 (1929), pp. 321-354. , "Politische Demokratie und Soziale Homogenitat," ProbIeme der Demokratie, Berlin, 1928, pp. 35-47. Hiller, Kurt, "Ewiger Friede in Gansefusschen," Die Weltbiihne, Jg. 28 (1932), pp. 498-500. Hitler, Adolf, "Die Grundlagen unseres Verfassungs- und Rechtslebens, Aus den Reichstagsrede des Fiihrers und Reichskanzlers vom 30. Januar 1937," Zeitsehrift der Akademie fir Deutsehes Reeht, Jg. 4, Heft 4 (February 15, 1937), p. 97. Hohn, Reinhard, "Grossraumordnung und volkisches Rechts-

BIBLIOGRAPHY

denken," Reich, Volksordnung, Lebensraumt Jg. 1 (1941), pp. 256-288. Huber, Ernst Rudolf, "Bedeutungswandel der Grundrechte," Archiv des offentlichen Rechts, Band 23, Heft 1 (December 1932), pp. 1-98. Jahrreiss, Hermann, "Wandlung der Weltordnung: Zugleich eine Auseinandersetzung mit der Volkerrechtslehre von Carl Schmitt," Zeitschrift fiir offentliches Recht, Band 21 (1941), pp. 513-536. "Das Judentum in der Rechtswissenschaft, Tagung der Reichsgruppe des NSRB," Mitteilungensblatt des National-Sozialistischen Rechtswahrerbundes (1936), pp. 200-201. Kirchheimer, Otto, "Bemerkungen zu CarlSchmitts Legalitat und Legitimitat," Archro fiir Sozialwissenschaft und Sozialpolitik, Band 68, Heft 4 (January 1933), pp. 457-487. Koellreutter, Otto, "Der nationale Rechtsstaat," Deutsche JuristenZeitung, Jg. 28, Heft 8 (April 15, 1933), pp. 517-524. Krauss, Giinther, "Staat, Bewegung, Volk als selbstandige Ordnungen, Bemerkungen zu einem neuen Bueh von Gottfried Neesse," Deutsche Juristen-Zeitung, Jg. 41, Heft 10 (May 15, 1936), pp. 620-624. ,"Zum Neubau deutscher Staatslehre: Die Forschungen Carl Schmitts," Jugend und Recht, Jg. 10, No. 11 (November 10, 1936), pp. 252-253. Kuchenhoff, Giinther, "Grossraumgedanke und volkische Idee im Recht," Zeitschrift fiir auslandisches offentliches Reeht und Volkerrecht, Band 12, No. 1 (September 1944), pp. 34-82. Landeck, Friedrieh, "Verfassung und Legalitat," Deutsches Volkstum, Halbmonatschrift (September 2, 1932), pp. 733-737. Lang, Clemens, "Die Ideologie des Widerstandes, Bemerkungen zu Carl Schmitts 'Begriff des Politischen,' " Deutsches Volkstum, 1 Dezemberheft (1932), pp. 959-964. Lohmann, Karl, "Die Waffe der Legalitat," Der Ring, Jg. 5, Heft 37 (September 9, 1932), pp. 608-611. Mareks, Erich, "Reich, Volk, und Reichswehr," Wissen und Wehr, Erstes Heft (1931), pp. 1-12. , "Das Reiehsheer von 1919 bis 1935," Deutsche Heeresgeschichte, ed. Karl Linnebach, Hamburg, 1935, pp. 376-404. , "Staat und Wehrmacht," Wissen und Wehr, Zweites Heft (1930), pp. 65-82.

BIBLIOGRAPHY

Michael, Horst, "Naturrecht, Legalitat und das Zentrum," Der Ring, Jg. 5, Heft 33 (August 12, 1932), pp. 548-550. Miiller, Paul [Waldemar Gurian], "Entscheidung und Ordnung. Zu den Schriften von Carl Schmitt," Schioeizerische Rundschau, No. 34 (1934/1935), pp. 566-576. Nawiasky, Hans, "Das Durchfuhrungsgesetz zum Artikel 48 der Reichsverfassung," Das Reeht, Jg. 28, Heft 20 (1924), pp. 454468. Preuss, Hugo, "Reichsverfassungsmassige Diktatur," Zeitsehrift fur Politik, Vol. 13 (1924), pp. 97-113. Quabbe, Georg, "Die Interpreten das Ausnahmezustandes—Ein staatsrechtlichen Leitfaden fiir Diktaturbeflissene," Vossisehe Zeitung, September 11, 1932. Radbruch, Gustav, "Parteienstaat und Volksgemeinschaft," Die Gesellsehaft, Jg. 6, Heft 2 (1929), pp. 97-102. Rogge, Heinrich, "Feindschaft als Lebenselement von Staat und Politik? Eine staatstheoretische Warnung," Der Ring, Jg. 5, Heft 2 (January 8, 1932), pp. 16-18. Schmoller, Gustav, "Der volkerrechtliche Status der Vereinigten Staaten nach Inkrafttreten des Englandshilfegesetzes," Zeitschrift der Akademieftr Deutsehes Reeht, Jg. 8, Heft 10 (May 15, 1941), pp. 153-155. Spanner, Hans, "Grossraum und Reich: Bemerkungen zu Band I der Zeitschrift Reich, Volksordnung, Lebensraum," Zeitsehrift fiir offentliches Reeht, Band 22 (1942), pp. 28-58. Sternthal, Friedrich, "tJber eine Apologie der romischer Kirche," Der Neue Merkur, Heft 7 (1922/24), pp. 764-768. Strauss, Leo, "Anmerkungen zu Carl Schmitts Der Begriff des Politischen," Arehiv fiir Sozialwissensehaft und Sozialpolitik, Band 67 (August-September 1932), pp. 732-749. Thoma, Richard, "Die Funktion der Staatsgewalt," Handhueh des Deutsehen Staatsrecht, ed. G. Anschiitz and R. Thoma, 2nd ed., Tubingen, 1932. ,"Die Notstandsverordnung des Reichsprasidenten vom 26 Juli 1930," Zeitschriftftr offentliches Reeht, Band 11 (1931), pp. 12-33. , "Die Regelung der Diktaturgewalt," Deutsche Juristen-Zeitung, Jg. 29, Heft 17/18 (1924), pp. 654-664. , "Zur Ideologie des Parlamentarismus und der Diktatur,"

BIBLIOGRAPHY

ArchiO fur Sozialwissenschaft und Sozialpolitik, Band 53 (1925), pp. 212-217. Wolgast, Ernst, "Grossraum und Reich; Bemerkungen zur Schrift Carl Schmits, Volkerrechtliche Grossraumordnung," Zeitschrift fiir dffentliches Recht, Band 21 (1941), pp. 20-31. Zehrer, Hans, "Die Kalte Revolution," Die Tat, Jg. 22, Heft 7 (October 1930), pp. 484-511. , "Rechts oder Links?" Die Tat,Jg. 23, Heft 7(October 1931), pp. 506-559. , "Revolution oder Restauration?" Die Tat, Jg. 24, Heft 5 (August 1932), pp. 353-393. , "Der Weg in das Chaos: Enthiillungen, Skandale, Sensationen," Die Tat, Jg. 21, Heft 8 (November 1929), pp. 563577. IV. NEWSPAPERS AND JOURNALS Abendland Archiv des dffentlichen Rechts Arehiv des Volkerreehts Arehiv fur Rechts- und Sozialphilosophie Archiv fiir Rechts- und Wirtschaftsphilosophie Archiv fiir Sozialwissenschaft und Sozialpolitik Deutsche Juristen-Zeitung Deutsche Rechtswissenschaft Deutsche Richterzeitung Deutsches Recht Deutsches Volkstum Frankfurter Allgemeine Zeitung Germania Die Gesellschaft Hochland Jahrbuch der Akademie fiir Deutsches Recht Jugend und Recht Kantstudien Kolnische Volkszeitung Der Kunstwart Neue Blatter fiir den Sozialismus Das Reich Reich, Volksordnung, Lebensraum

BIBLIOGRAPHY

Reichsgesetzblatt Der Ring Das Schwarze Korps Schweizerische Rundschau Tagliehe Rundschau Die Tat Vdlkischer Beobachter Vossische Zeitung Die Weltbtihne Westdeutscher Beobachter Zeitschrift der Akademie βτ Deutsches Recht Zeitschrift fiir auslandisches offentliche Recht und Vdlkerrecht Zeitschrift βτ die gesamte Staatswissenschaft Zeitschrift r offentliches Recht Zeitschrift βτ Politik Zeitsehrift βτ Vdlkerrecht Central European History Historische Zeitschrift Journal of Contemporary History Journal of Modern History Der Staat Vierieljahreshefte βτ Zeitgeschichte

V. SELECTED WORKS BY SCHMITT A. BIBLIOGRAPHIES

For outstanding bibliographies of Schmitfs works, as well as of most publications related to the jurist and his ideas, see: Tommissen, Piet, "Carl Schmitt-Bibliographie," Festschrift βτ Carl Schmitt zum 70. Geburtstag, ed. Hans Barion et al., Berlin, 1959, pp. 273-330. , "Erganzungsliste zur Carl-Schmitt-Bibliographie vom Jahre 1959," Epirrhosis: Festgabe βτ Carl Schmitt, ed. Hans Barion et al., 2 vols, Berlin, 1968, pp. 739-778. , "Zweite Fortsetzungsliste der C.S.-Bibliographie vom Jahre 1959," Revue europeenne des sciences sociales, Tome XVI, No. 44 (July 1978), pp. 187-238.

BIBLIOGRAPHY Β. MAJOR BOOKS

liber Schuld und Schuldarten: Eine terminologische Untersuchung,

Breslau, 1910. Gesetz und Urteil: Eine Untersuchung zum Problem der Rechtspraxis,

Munich, 1912. Schattenrisse, with Fritz Eisler under pseudonym Johannes Ne-

gelinus, Mox Doctor, Leipzig, 1913. Der Wert des Staates und die Bedeutung des Einzelnen, Tubingen,

1914. Theodor Daublers "Nordlicht": Drei Studien iiber die Elemente, den Geist und die Aktualitat des Werkes, Munich, 1916. Politische Romantik, Munich, 1919. References are to the 1925 edi­

tion. Die Diktatur: Von den Anfangen des modernen Souveranitatsgedankens bis zum proletarischen Klassenkampf, Munich, 1921. References

are to the 1928 edition. Politische Theologie: Vier Kapitel zur Lehre von der Souveranitat, Mu­

nich, 1922. Diegeistesgeschichtliche Lage des heutigen Parlamentarismus, Munich,

1923. References are to the 1926 edition. Romischer Katholizismus und Politisehe Form, Hellerau, 1923. Ref­

erences are to the 1925 edition. Die Kernfrage des Volkerbundes, Berlin, 1926. Volksentseheid und Volksbegehren: Ein Beitrag zur Auslegung der Weimarer Verfassung und zur Lehre von der unmittelbaren Demokratie,

Berlin, 1927. Verfassungslehre, Munich, 1928. Der Begriff des Politisehen, Berlin, 1928,1932, Hamburg, 1933. Ref­

erences are to the 1963 edition. The Concept of the Political, Translation, Introduction, and notes

by George Schwab with comments on Schmitt's Essay by Leo Strauss, New Brunswick, N.J., 1976. Hugo Preuss: Sein Staatsbegriff und seine Stellung in der deutschen Staatslehre, Tubingen, 1930. Der Hiiter der Verfassung, Tubingen, 1931. Legalitat und Legitimitat, Munich, 1932. Das Reichsstatthaltergesetz, Berlin, 1933. References are to the 1934

edition. Staat, Bewegung, Volk: Die Dreigliederung der politisehen Einheit,

Hamburg, 1933.

BIBLIOGRAPHY

Staatsgefiige und Zusammenbruch des Zweiten Reiches: Der Sieg des Burgers ilber den Soldaten, Hamburg, 1934. Uber die drei Arten des rechtswissensehaftlichen Denkens, Hamburg,

1934. Der Leviathan in der Staatslehre des Thomas Hobbes: Sinn und FehlschIag eines politischen Symbols, Hamburg, 1938. Die Wendung zum diskriminierenden Kriegsbegriff, Munich, 1938. Volkerrechtliche Grossraumordnung mit Interventionsverbot fiir raumfremde Mdchte: Ein Beitrag zum Reichsbegriff im Volkerrecht, Ber­

lin, 1939. Positionen und Begriffim Kampfmit Weimar—Genf—Versailles, 19231939, Hamburg, 1940. Land und Meer: Eine weltgeschichtliche Betrachtung, Leipzig, 1942. Ex Captivitate Salus: Erfahrungen der Zeit 1945/47, Cologne, 1950. Der Nomos der Erde im Volkerrecht des Jus Publicum Europaeum, Co­

logne, 1950. Hamlet oder Hekuba: Der Einbruch der Zeit in das Spiel, Dusseldorf,

1956. Verfassungsrechtliche Aufsatze aus den Jahren 1924-1954: Materialien zu einer Verfassungslehre, Berlin, 1958. Theorie des Partisanen: Zwischenbemerkungen zum Begriff des Poli­ tischen, Berlin, 1963. Politische Theologie II: Die Legende von der Erledigungjeder politischen Theologie, Berlin, 1970. C. MAJOR ARTICLES

"Diktatur und Belagerungszustand: Eine staatsrechtliche Studie," Zeitschriftfiirdiegesamte Strafrechtswissenschaft, Band 38 (1916), pp. 138-161. "Die Einwirkungen des Kriegszustandes auf das ordentliche strafprozessuale Verfahren," Zeitschrift fiir die gesamte Straf­ rechtswissenschaft, Band 38 (1917), pp. 783-797. "Politische Theorie und Romantik," Historische Zeitschrift,, Band 123 (1921), pp. 377-397. "Reichsprasident und Weimarer Verfassung," Kolnische Volkszeitung, No. 198, March 15, 1925. "Einmaligkeit und gleicher Anlass bei der Reichstagsauilosung nach Art. 25 der Reichsverfassung," Archiv for offentlichen Rechts, Band 8 (1925), pp. 162-174. "Der Gegensatz von Parlamentarismus und modernen Massen-

BIBLIOGRAPHY

demokratie/' Hochland, Band 23, Heft 2 (April-September 1926), pp. 257-270. "Zu Friedrich Meineckes 'Idee der Staatsrason,' " Archiv fur Sozialwissenschaft und Sozialpolitik, Band 56 (1926), pp. 226-234. "Das Ausfuhrungsgesetz zu Art. 48 der Reichsverfassung; (sog. Diktaturgesetz)," Kolnische Volkszeitung, Jg. 67, No. 805, Oc­ tober 30, 1926. "Machiavelli—Zum 22. Juni 1927," Kolnische Volkszeitung, Jg. 68, No. 448, June 21, 1927. "Der biirgerliche Rechtsstaat," Abendland, Jg. 3, Heft 7 (April 1928), pp. 201-203. "Neutralitat gegenuber der Wirtschaft," Germania, No. 166, April 9, 1930. "Das Problem der innerpolitischen Neutralitat des Staates," Mitteilungen der Industrie- und Handelskammer zu Berlin, Jg. 28, Heft 9 (May 10, 1930), pp. 471-477. "Staatsethik und pluralistischer Staat," Kantstudien, Band 35, Heft 1 (1930), pp. 28-42. "Zur politischen Situation in Deutschland," Der Kunstwart, Jg. 44, No. 4 (October 1930-September 1931), pp. 253-256. "Eine Warnung vor falschen politischen Fragestellungen," Der Ring, Jg. 3, Heft 48 (November 30, 1930), pp. 844-845. "Reichs- und Verwaltungsreform," Deutsche Juristen-Zeitung, Jg. 36, Heft 1 (January 1, 1931), pp. 5-11. "Die Wendung zum totalen Staat," Europaische Revue, Jg. 7, Heft 4 (April 1931), pp. 241-250. "Legalitat und gleiche Chance politischer Machtgewinnung," Deutsches Volkstum, 2 Juliheft (1932), pp. 557-564. "Der Missbrauch der Legalitat," Tagliche Rundschau, July 19, 1932. "Die Verfassungsmassigkeit der Bestellung eines Reichskommissars fiir das Land Preussen," Deutsche ]uristen-Zeitung, Jg. 27, Heft 15 (August 1, 1932), pp. 953-958. "Gesunde Wirtschaft im starken Staat," Mitteilungen des Vereins zur Wahrung der gemeinsamen wirtschaftlichen Interessen in Rheinland und Westfalen, Heft 21 (November 23,1932), pp. 1332. "Die Stellvertretung des Reichsprasidenten," Deutsche JuristenZeitung, Jg. 38, Heft 1 (January 1, 1933), pp. 27-31. "Das Gesetz zur Behebung der Not von Volk und Reich," Deutsche Juristen-Zeitung, Jg. 38, Heft 7 (April 1, 1933), pp. 455-458.

BIBLIOGRAPHY

"Das gute Recht der deutschen Revolution," Westdeutscher Beobachter, Jg. 9, No. 108, May 12, 1933. "Die deutschen Intellektuellen," Westdeutscher Beobachter, Jg. 9, No. 126, May 31, 1933. "Der Staat des 20. Jahrhunderts," Westdeutscher Beobachter, Jg. 9, No. 151, June 28, 1933. "Die offentliche Verwaltung in neuen Reich," Deutsche JuristenZeitung, Jg. 38, Heft 14 Quly 15, 1933), p. 959. "Die Bedeutung des neuen Staatsrates," Westdeutscher Beobachter, Jg. 9, No. 169, July 16, 1933. "1 Jahr Deutsche Politik: Ruckblick vom 20. Juli 1932—Von Papen iiber Schleicher zum ersten deutschen Volkskanzler Adolf Hitler," Westdeutscher Beobachter, Jg. 9, No. 176, July 23,1933. "Die Neugestaltung des offentlichen Recht," Jahrbuch der Akademie fir Deutsches Recht, Jg. 1 (1933/34), pp. 63-64. "Neue Leitsatze ftir die Rechtspraxis," Juristische Wochenschrift, Jg. 62, Heft 50 (December 16, 1933), pp. 2793-2794. "Ein Jahr nationalsozialistischer Verfassungsrecht," Deutsches Recht, Jg. 4, No. 2 (January 25, 1934), pp. 27-30. "Nationalsozialismus und Rechtsstaat," Deutsche Verwaltung, Jg. 11, No. 3 (March 20, 1934), pp. 35-42. "Nationalsozialistisches Rechtsdenken," Deutsches Recht, Jg. 4, No. 10 (May 25, 1934), pp. 225-229. "Der Weg des deutschen Juristen," Deutsche Juristen-Zeitung, Jg. 39, Heft 11 Qune 1, 1934), pp. 691-698. "Der Fiihrer schiitzt das Recht," Deutsche Juristen-Zeitung, Jg. 39, Heft 15 (August 1, 1934), pp. 945-950. "Die Verfassungsmassigkeit der Einsetzung von Staatskommissaren," Danziger Juristen-Zeitung, Jg. 13, No. 11 (November 25, 1934), pp. 113-116. "Die Verfassung der Freiheit," Deutsche Juristen-Zeitung, Jg. 40, Heft 19 (October 1, 1935), pp. 1133-1135. "Die geschichtliche Lage der deutschen Rechtswissenschaft," Deutsche Juristen-Zeitung, Jg. 41, Heft 1 (January 1, 1936), pp. 15-21. "Die nationalsozialistische Gesetzgebung und der Vorbehalt des 'ordre public' im Internationalen Privatrecht," Zeitschrift der Akademiefir Deutsches Recht, Jg. 3, Heft 4 (February 20,1936), pp. 204-211.

BIBLIOGRAPHY

"Aufgabe und Notwendigkeit des deutschen Rechtsstandes/' Deutsches Recht, Jg. 6, Heft 9/10 (May 15, 1936), pp. 181-185. "Faschistische und nationalsozialistisehe Rechtswissenschaft," Deutsche Juristen-Zeitung, Jg. 41, Heft 10 (May 15, 1936), pp. 619-620. "Die deutsche Rechtswissenschaft im Kampf gegen den judischen Geist," Deutsche Juristen-Zeitung, Jg. 41, Heft 20 (October 15, 1936), pp. 1193-1199. "Der Staat als Mechanismus bei Hobbes und Descartes," Archiv fur Rechts- und Sozialphilosophie, Band 30 (1936/37), pp. 622632. "liber das Verhaltnis von Volkerrecht und staatlichen Recht," Zeitschrift der Akademie fiir Deutsches Recht, Jg. 7, Heft 1 (Jan­ uary 1, 1940), pp. 4-6. "Das Gesprach liber die Macht und den Zugang zum Machthaber," Gemeinschaft und Politik, Jg. 2, Heft 10 (1954), pp. 9-15. "Die legale Weltrevolution: Politischer Mehrwert als Pramie auf juristische Legalitat und Superlegalitat," Der Staat, Jg. 21, Heft 3 (1978), pp. 321-339. VI. SELECTED WORKS ON SCHMITT A. MAJOR BOOKS

Bentin, Lutz-Arwed, Johannes Popitz und Carl Schmitt: Zur wirtschaftlichen Theorie des totalen Staates in Deutschland, Munich, 1972. Fijalkowski, Jurgen, Die Wendung zum Fiihrerstaat: Ideologische Komponenten in der politischen Philosophie Carl Schmittsr Co­ logne, 1958. Freund, Julien, L'essenee du politique, Paris, 1965. Hofmann, Hasso, Legitimitat gegen Legalitat: Der Weg der politischen Philosophie Carl Schmitts, Berlin, 1964. Kodalle, Klaus-Michael, Politik als Macht und Mythos: Carl Schmitts "Politisehe Theologie," Stuttgart, 1973. Krockow, Christian Graf von, Die Entscheidung: Eine Untersuchung iiber Ernst Jiinger, Carl Schmitt, Martin Heidegger, Stuttgart, 1958. Pattloch, Peter Paul, Recht als Einheit von Ordnung und Ortung: Ein Beitrag zum Rechtsbegriff in Carl Schmitts "Nomos der Erde,"

Aschaffenburg, 1961.

BIBLIOGRAPHY

Rumpf, Helmut, Carl Schmitt und Thomas Hobbes: Ideelle Beziehungen und aktuelle Bedeutung mit einer Abhandlung iiber: Die Friihschriften Carl Schmitts, Berlin, 1972. Schmitz, Mathias, Die Freund-Feind-Theorie Carl Schmitts: Entwurf und Entfaltung, Cologne, 1965. Schneider, Peter, Ausnahmezustand und Norm: Eine Studie zur Rechtslehre von Carl Schmitt, Stuttgart, 1957. Schultes, Karl, Die Niedergang des staatsrechtlichen Denkens im Faschismus: Die Lehren des Herrn Professor Carl Schmitt, Kronjurist der Gegenrevolution, Weimar, 1947. Schwab, George, The Challenge of the Exception: An Introduction to the Political Ideas of Carl Schmitt between 1921 and 1936, Berlin,

1970. Tommissen, Piet, ed., Over En In Zake Carl Schmitt, Brussels, 1975. B. MAJOR ARTICXES

Altmann, Rudiger, "Macht die Verfassung noch den Staat? Carl Schmitt wird neunzig," Frankfurter Allgemeine Zeitung, No. 143, July 8, 1978. Bendersky, Joseph W., "Carl Schmitt Confronts the EnglishSpeaking World," Canadian Journal of Political and Social The­ ory/Revue canadienne de thiorie politique et sociale, Vol. 2, No. 3 (Fall/Automne 1978), pp. 125-135. , "Carl Schmitt in the Summer of 1932: A Reexamination," Revue europeenne des sciences sociales, Tome XVI, No. 44 (July 1978), pp. 39-53. , "The Expendable Kronjurist: Carl Schmitt and National Socialism, 1933-1936," Journal of Contemporary History, Vol. 14, No. 2 (April 1979), pp. 309-328. Bredow, Wilfried von, "Carl Schmitt lesen," Liberal, Jg. 20, Heft 6 Oune 1978), pp. 432-444. Fijalkowski, Jiirgen, "Das politische Problem der Feindschaft," Politische Vierteljahresschrift, Jg. 6, Heft 1 (March 1965), pp. 105-111. Frye, Charles E., "Carl Schmitt's Concept of the Political," The Journal of Politics, Vol. 28, No. 4 (November 1966), pp. 818830. Hofmann, Hasso, "Feindschaft—Grundbegriff des Politischen?" Zeitschrift for Politik, Jg. 12, Heft 1 (February 1965), pp. 1739.

BIBLIOGRAPHY

Janicke, Martin, "Die 'Abgrundige Wissenschaff vom Leviathan: Zur Hobbes-Deutung Carl Schmitts im Dritten Reich," Zeitschrifl fur Politik, Jg. 16, Heft 3 (September 1969), pp. 401415. Kaufmann, Erich, "Carl Schmitt und seine Schule: Offener Brief an Ernst Forsthoff," Deutsche Rundschau, Jg. 84, Heft 11 (Oc­ tober 1958), pp. 1013-1015. Leicht, Robert, "Ein Staatsrecht ohne das Recht: Ober die Machtphantasien eines Unpolitischen," Suddeutsche Zeitung, No. 154, July 8/9, 1978. Lewald, Walter, "CarlSchmitt redivivus?" Neue Juristische Wochenschrift, Jg. 3 (1950), p. 377. Muth, Heinrich, "Carl Schmitt in der deutschen Innenpolitik des Sommers 1932," Historische Zeitschrift, Beiheft 1, Beitrage zur Geschichte der Weimarer Republik (1971), pp. 75-147. Rumpf, Michael, "Radikale Theologie: Benjamins Beziehung zu Carl Schmitt," Walter Benjamin: Zeitgenosse der Moderne, ed. Peter Gebhardt et al., Kronberg, 1976, pp. 37-50. Scheuner, Ulrich, "Die Anwendung des Art. 48 der Weimarer Reichsverfassung unter den Prasidentschaften von Ebert und Hindenburg," Staat, Wirtschaft und Politik in der Weimarer Republik: Festschrift filr Heinrich Briining, ed. Ferdinand A. Hermens and Theodor Schieder, Berlin, 1967, pp. 249-286. Schroers, Rolf, "In der Landschaft des Verrats: Zum 90. Geburtstag von Carl Schmitt (11.VII.1978)," Merkur: Deutsches Zeitschrift fiir europaisches Denken, Jg. 32, Heft 7 (July 1978), pp. 735-738. Schule, Adolf, "Eine Festschrift," Juristenzeitung, Jg. 14, No. 22 (November 20, 1959), pp. 729-731. Schwab, George, "Carl Schmitt: Political Opportunist?" Intellect Magazine, Vol. 103 (February 1974), pp. 334-337. , "Enemy oder Foe: Der Konflikt der modernen Politik," Epirrhosis: Festgabe fiir Carl Schmitt, ed. Hans Barion et al., II, Berlin, 1968, pp. 665-682. , "Schmitt Scholarship," Canadian Journal of Political and Social Theory/Revue canadienne de theorie politique et sociale, Vol. 4, No. 2 (Spring-Summer 1980), pp. 149-155. Sontheimer, Kurt, "Carl Schmitt: Seine 'Loyalitat' gegenuber der Weimarer Verfassung," Neue Politische Literatur, Jg. 3, Heft 10 (October 1958), pp. 758-770.

BIBLIOGRAPHY

Tommissen, Piet, "Carl Schmitt—metajuristisch betrachtet: Seine Sonderstellung im katholischen Renouveau des Deutschlands der Zwanziger Jahre," Criticon, Jg. 30 (July/August 1975), pp. 177-184. , "Problemen rond de houding van Carl Schmitt in en na 1933," Liber Memoralis, Tien Jaar Economisehe Hogesschool Limburg, Limburg, 1979, pp. 167-199. von der Heydte, Friedrieh August, "Heil aus der Gefangenschaft? Carl Sehmitt und die Lage der europaisehen Rechtswissenschaft," Hochland, Jg. 43 (1950/51), pp. 288-294.

VII. SELECTED SECONDARY LITERATURE A. BOOKS

Abraham, David, The Collapse of the Weimar Republic: Political Econ­ omy and Crisis, Princeton, 1981. Ackermann, Konrad, Der Widerstand der Monatschrift Hochland gegen den Nationalsozialismus, Munich, 1965. Bay, Jiirgen, Der Preussenkonflikt 1932/33: Ein Kapitel aus der Verfassungsgeschichte der Weimarer Republik, Erlangen, 1967. Beck, Earl R., The Death of the Prussian Republic: A Study of ReichPrussian Relations, 1932-1934, Tallahassee, 1959. Bracher, Karl Dietrich, Die Aufldsung der Weimarer Republik: Eine Studie zum Problem des Machtverfalls in der Demokratie, 5th ed., Stuttgart, 1971. , The German Dictatorship: The Origins, Structure, and Effects of National Socialism, 2nd ed., New York, 1970. , The German Dilemma: The Relationship of State and Democ­ racy, New York, 1975. Broszat, Martin, Der Staat Hitlers: Grundlegung und Entwicklung seiner inneren Verfassung, Munich, 1969. Bullock, Alan, Hitler: A Study in Tyranny, New York, 1964. Craig, Gordon A., Germany, 1866-1945, New York, 1980. , The Politics of the Prussian Army, 1640-1945, New York, 1966. Dawidowicz, Lucy S., The War Against the Jews, 1933-1945, New York, 1978. Dieckmann, Hildemarie, Johannes Popitz: Entwicklung und Wirksamkeit in der Zeit der Weimarer Republik, Berlin-Dahlem, 1960.

BIBLIOGRAPHY

Dorpalen, Andreas, Hindenburg and the Weimar Republic, Prince­ ton, 1964. Ebenstein, William, The German Record: A Political Portrait, New York, 1945. , ed., Man and the State: Modem Political Ideas, New York, 1947. Eksteins, Modris, The Limits of Reason: The German Democratic Press and the Collapse of Weimar Democracy, London, 1975. Emerson, Rupert, State and Sovereignty in Modern Germany, New Haven, 1928. Epstein, Klaus, Matthias Erzberger and the Dilemma of German De­ mocracy, New York, 1971. Eyck, Erich, A History of the Weimar Republic, 2 vols., Cambridge, Mass., 1967. Fest, Joachim, Hitler, New York, 1975. Foertsch, Hermann, Schuld und Verhangnis: Die Fritsch-Krise im Friihjahr 1938 als Wendepunkt in der Geschichte der nationalsozialistischen Zeit, Stuttgart, 1951. Fraenkel, Ernst, The Dual State: A Contribution to the Theory of Dictatorship, New York, 1941. Gay, Peter, Weimar Culture: The Outsider as Insider, New York,

1970. Gruchmann, Lothar, Nationalsozialistische Grossraumordnung: Die Konstruktion einer "deutschen Monroe-Doktrin," Stuttgart, 1962. Grunberger, Richard, The 12-Year Reich: A Social History of Nazi Germany, 1933-1945, New York, 1972. Grund, Hennig, "Preussenschlag" und Staatsgerichtshof im Jahre, 1932, Baden-Baden, 1976. Halperin, S. William, Germany Tried Democracy: A Political History of the Reich from 1918 to 1933, New York, 1965. Heiber, Helmuth, WalterFrank und sein Reichsinstitutfur Geschichte des neuen Deutschlands, Stuttgart, 1966. Hermann, Armin, Werner Heisenberg, 1901-1976, Bonn-Bad Godesberg, 1976. Hermens, Ferdinand A., Democracy or Anarchy? A Study of Pro­ portional Representation, Notre Dame, 1941. , Zvoischen Politik und Vernunfl: Gesammelte Aufsatze aus drei Welten, Berlin, 1969. Hermens, Ferdinand A., and Schieder, Theodor, eds., Stoat,Wirt-

BIBLIOGRAPHY

schaft und Politik in der Weimarer Republik: Festschriftfir Heinrich Briining, Berlin, 1967. Hohne, Heinz, The Order of the Death's Head: The Story of Hitler's SS, New York, 1971. Holborn, Hajo, A History of Modern Germany, 1840-1945, New

York, 1970. Hossbach, Friedrich, Zwischen Wehrmacht und Hitler, 1934-1938, Gottingen, 1965. Hughes, H. Stuart, Consciousness and Society: The Reorientation of European Social Thought, 1890-1930, New York, 1958. Hunt, Richard N., German Social Democracy, 1918-1933, 2nd ed., Chicago, 1970. Hiirten, Heinz, Waldemar Gurian: Ein Zeuge der Krise unserer Welt in der ersten Halpe des 20. Jahrhunderts, Mainz, 1972. Jay, Martin, The Dialectical Imagination: A History of the Frankfurt School and the Institute for Social Research, 1923-1950, Boston, 1973. Junker, Detlef, Die Deutsche Zentrumspartei und Hitler 1932/33: Ein Beitrag zur Problematik des politischen Katholizismus in Deutschland, Stuttgart, 1969. Kempner, Robert M. W., Das Dritte Reich im Kreuzverhor: Aus den unveroffentlichten Vernehmungsprotokollen des Anklagers, Mu­

nich, 1969. Kessler, Heinrich, Wilhelm Stapel als politischer Publizist: Ein Beitrag zur Geschichte des konservativen Nationalismus zwischen den beiden Weltkriegen, Nuremberg, 1967. Klemperer, Klemens von, Germany's New Conservatism: Its History and Dilemma in the Twentieth Century, Princeton, 1972. Kohn, Hans, TheMind of Germany: The Education of a Nation, New

York, 1960. Landauer, Carl, Germany: Illusions and Dilemmas, New York, 1969. Laqueur, Walter, Weimar: A Cultural History, 1918-1933, New York, 1974. Matthias, Erich, and Morsey, Rudolf, Das Ende der Parteien 1933, Diisseldorf, 1960. Metall, Rudolf A., Hans Kelsen: Leben und Werk, Vienna, 1969. Mitchell, Allan, Revolution in Bavaria, 1918-1919: The Eisner Regime and the Soviet Republic, Princeton, 1965. Mohler, Armin, Die konseroative Revolution in Deutschland, 19181932: Ein Handbuch, 2nd ed., Darmstadt, 1972.

BIBLIOGRAPHY

Mosse, George L., The Crisis of German Ideology: Intellectual Origins of the Third Reich, New York, 1964. , Germans and Jews: The Right, The Left, and The Search for a "Third Force" in Pre-Nazi Germany, New York, 1970. Neumann, Franz, Behemoth: The Structure and Practice of National Socialism, 1933-1944, New York, 1963. Punder, Hermann, Der Reichsprasident in der Weimarer Republik, Bonn, 1961. Rich, Norman, Hitler's War Aims: Ideology, the Nazi State, and the Course of Expansion, New York, 1973. Ringer, Fritz, The Decline of the German Mandarins: The German Academic Community, 1890-1933, Cambridge, Mass., 1969. Ross, Ronald, Beleaguered Tower: TheDilemmaofPolitical Catholicism in Wilhelmine Germany, Notre Dame, 1976. Rossiter, Clinton L., Constitutional Dictatorship: Crisis Government in the Modern Democracies, Princeton, 1948. Rothfels, Hans, The German Opposition to Hitler: An Assessment, London, 1970. Ryder, A. ]., Twentieth-Century Germany: From Bismarck to Brandt, New York, 1973. Schwierskott, Hans Joachim, Arthur Moeller van den Bruck und der revolutionare Nationalismus in der WeimarerRepublik, Gottingen, 1962. Sontheimer, Kurt, Antidemokratisches Denken in der Weimarer Re­ publik: Die politischen Ideen des deutschen Nationalismus zwischen 1918 und 1933, Munich, 1964. Struve, Walter, Elites against Democracy: Leadership Ideals in Bour­ geois Political Thought in Germany, 1890-1933, Princeton, 1973. Sykes, Christopher, Tormented Loyalty: The Story of a German Aris­ tocrat Who Defied Hitler, New York, 1969. Timm, Helga, Die Deutsche Sozialpolitik und der Bruch der Grossen Koalition im Marz 1930, Dusseldorf, 1952. Treviranus, Gottfried, Das Ende von Weimar: Heinrich Brilning und seine Zeit, Vienna, 1968. Trumpp, Thomas, Franz von Papen, Der Preussisch-Deutsche Dualismus und die NSDAP in Preussen: Ein Beitrag zur Vorgeschichte des 20. Juli 1932, Marburg, 1965. Unseld, Siegfried, ed., Zur Aktualitcit Walter Benjamins: Aus Anlass des 80. Geburtstag von Walter Benjamin, Frankfurt am Main, 1972.

BIBLIOGRAPHY

Vogelsang, Thilo, Kurt voti Schleicher: Eiti General als Politiker, Gottingen, 1965. Watkins, Frederick, The Failure of Constitutional Emergency Powers under the German Republic, Cambridge, Mass., 1939. Weinberg, Gerhard L., The Foreign Policy of Hitler's Germany: Dip­ lomatic Revolution in Europe, 1933-36, Chicago, 1970. Weinkauff, Hermann, Die deutsche Justiz und der Nationalsozialismus: Ein Uberblick, Vol. 1, Stuttgart, 1968. Weinreich, Max, Hitler's Professors: The Part of Scholarship in Ger­ many's Crimes against the Jewish People, New York, 1946. Weisbrod, Bernd, Schwerindustrie in der Weimarer Republik: Interessenpolitik zwischen Stabilisierung und Krise, Wuppertal, 1978. Wheeler-Bennett, John W., The Nemesis of Power: The German Army in Politics, 1918-1945, New York, 1967. Witte, Bernd, Walter Benjamin: Intellektuelle als Kritiker: Untersuchungen zu seinem Friihwerk, Stuttgart, 1976. B. ARTICLES

Becker, Josef, "Briining, Pralat Kaas und das Problem einer Regierungsbeteilung der NSDAP, 1930-1932," Historische Zeitschrift, Band 196 (1963), pp. 74-111. Bracher, Karl Dietrich, "Der 20. Juli 1932," Zeitschrift r Politik, Jg. 3, Heft 3 (December 1956), pp. 243-251. Conze, Werner, "Die Krise des Parteienstaates in Deutschland 1929/30," Historische Zeitschrift, Band 178 (1954), pp. 47-83. Craig, Gordon A., "Engagement and Neutrality in Weimar Ger­ many," Journal of Contemporary History, Vol. 2, No. 2 (April 1967), pp. 49-63. Eschenburg, Theodor, "Die Rolle der Personlichkeit in der Krise der Weimarer Republik: Hindenburg, Briining, Groner, Schleicher," Vierteljahreshefte fur Zeitgeschichte, Jg. 9, Heft 1 (January 1961), pp. 1-29. Hayes, Peter, "A Question Mark with Epaulettes? Kurt von Schleicher and Weimar Politics," Journal of Modern History, Vol. 52 (March 1980), pp. 35-65. Morsey, Rudolf, "Neue Quellen zur Vorgeschichte der Reichskanzlerschaft Brunings," Staat, Wirtschaft und Politik in der Weimarer Republik: Festschrip filr Heinrich Briining, ed. Ferdi­ nand A. Hermens and Theodor Schieder, Berlin, 1967, pp. 207-231.

BIBLIOGRAPHY

Ott, Eugen, "Ein Bild des Generals Kurt von Schleicher: Aus den Erfahrungen seiner Mitarbeiter dargestellt," Politische Studien, Vol. X (1959), pp. 360-371. Puhle, Hans-Jiirgen, "Conservatism in Modern German History," Journal of Contemporary History, Vol. 13, No. 4 (October 1978), pp. 689-720. Ritter, Gerhard, "The German Professor in the Third Reich," The Review of Politics, Vol. VIII, No. 2 (April 1946), pp. 242-254. Schafer, Friedrich, "Zur Frage des Wahlrechts in der Weimarer Republik," Stoat, Wirtschaft und Politik in der Weimarer Repub­ lik: Festschrift fur Heinrich Bruning, ed. Ferdinand A. Hermens and Theodor Schieder, Berlin, 1967, pp. 119-140. Scheuner, Ulrich, "Die Vereinigung der Deutschen Staatsrechtslehrer in der Zeit der Weimarer Republik," Archiv des dffentlichen Reehts, Band 97, Heft 3 (September 1972), pp. 349-374. Sontheimer, Kurt, "Der Tatkreis," Von Weimar zur Hitler, 19301933, ed. Gotthard Jasper, Cologne, 1968, pp. 197-228. Vogelsang, Thilo, "Zur Politik Schleiehers gegeniiber der NSDAP 1932," Vierteljahreshefte fiir Zeitgeschichte, Jg. 6, Heft1 (January 1958), pp. 86-118.

INDEX

Abraham, David, 120n Abraham, Hans Fritz, 180 Academy of German Law, 205, 226, 236, 248-50 Adams, Paul, 52 Altmann, Riidiger, 276 Anschiitz, Gerhard, 74, 99-100, 160, 163 anti-Semitism. See Schmitt, atti­ tudes toward Jews Aris, Reinhold, 168-69 army, 21, 30, 71, 112, 114-17, 137, 146-47, 174, 195-%, 209-10, 21214, 222 Article 48, 32-34, 71, 73-84, 112, 117, 119, 122-26, 130-32, 139, 154, 159, 162-66, 176, 185, 196, 284-85 Association of German Constitu­ tional Lawyers, 74, 132 Ausfiihrungsgesetz (specific law), 75, 78-79, 81-84 Ausnahmezustand (state of excep­ tion), 19, 37-39, 61-62, 71, 7677, 82-83, 107, 115, 284-85 Ball, Hugo, 8, 50-51 Barion, Hans, 49, 276 Baumler, Alfred, 60 Bavarian state-of-war law (1912), 19 Benjamin, Walter, 61-62, 277; The Origins of German Tragedy, 61 Bergson, Henri, 69 Berliner TageMatt, 130 Best, Werner, 221, 260 Bilfinger, Carl, 74, 156, 160, 176 Blei, Franz, 4, 8, 45, 47, 58, 136 Bodin, Jean, 59, 271

Bonn, Moritz Julius, 23, 44, 56, 71-72, 107, 190-91, 202, 227 Bonn constitution, 181, 283-84 Bracher, Karl Dietrich, 120n, 284 Brecht, Arnold, 160-61, 164, 203n, 206-7 Bredow, Major General Kurt von, 212

Brinkmann, Carl, 35 Britain, 253-54, 257 Briining, Heinrich, 53, 118-19, 122-23, 126-27, 144, 157 Bumke, Erwin, 161, 167 Caesar, 34 Carrillo, Santiago, 286 Catholic Action Group, 212 Catholic Center Party, 13, 27, 53, 66, 80, 127-28, 130, 140, 154-60, 178-79, 185-86, 189 Catholics, 5-6, 12-13 Communist Party, 21-22, 30-32, 66, 80, 102, 132, 144-45, 149, 153, 173, 184, 196, 286 conservative revolution. See rightwing intellectuals Cortes, Donoso, 59 cultural pessimism, 16-17 Daily Mail 257-58 Daitz, Werner, 260-61 d'Alquen, Gunther, 239, 241 Daubler, Theodor, 8, 17, 58; Nordlicht, 17 Deutsche Briefe, 225-27, 240, 242 Deutsche Hochschule fur PoKtik, 55, 57, 91, 95, 141-42 Deutsche Juristen-Zeitung, 157-58, 166

INDEX Deutsches Recht, 205, 211 Deutsches Volkstum, 58, 137, 153,

168, 226 dictatorship, 20, 31-35, 62, 72-73, 77-78, 130-34, 138-39, 169, 179, 195, 197, 212, 218, 242, 275 Dorn, Herbert, 122-23, 126 Dorotic, Pawla, 16, 44 Ebert, Friedrich, 30, 34, 71, 74, 79, 100, 112, 124 Eck, Thomas, 168 Eckhardt, Karl August, 230, 234 Eisler, Fritz, 46, 227, 236 Enabling Act, 196-98 Enlightenment, 17, 68 Erzberger, Matthias, 13, 34 European Monroe Doctrine, 25859. See also Schmitt, Grossraum theory Februar-Klub, IlOn Forsthoff, Ernst, 48, 62, 182n, 203, 276 Fraenkel, Ernst, 181 Frank, Hans, 211-12, 220-21, 223, 225, 230-31, 234-35, 239, 243, 258 Frankfurt School, 61 Frankfurter Zeitung, 130, 257 Free Corps, 21-22 Freund, Julien, 281 Freytagh-Loringhoven, Axel, 249 Frick, Wilhelm, 200, 231 Friedrich, Carl Joachim, 130-31, 138, 276-77 Friesenhahn, Ernst, 62-63; The Po­ litical Oath, 63 Fritsch, General Werner von, 21314 Gayl, Wilhelm von, 154, 157-58, 158n, 173-74, 177, 182

German Democratic Party (DDP), 65, 81 German Legal Front, 211, 226 German Nationalist People's Party (DNVP), 65, 80, 98-99, 102, 108, 132, 196 German People's Party (DVP), 65 Germania, 52-53, 94, 140-41, 186-87 Giese, Friedrich, 160-63 Gleichen, Heinrich von, 133 Gleichschaltung, 199, 226 Goebbels, Josef, 220, 261 Goring, Hermann, 113, 205, 211, 214-15, 217, 221, 223, 241-43 Graduate School of Business Administration (Berlin), 107, 189-91, 230 Graduate School of Business Administration (Munich), 23 great coalition, 102, 108, 119, 128 Groener, General Wilhelm, 116 Grossraum. See Schmitt, Grossraum theory Gruneberg, Horst, 134 Giinther, Albrecht Erich, 136-37, 168, 188

Gurian, Edith, 52 Gurian, Waldemar, 51-52, 94, 179, 224-26, 229 Hartung, Fritz, IlOn Haushofer, Albrecht, 252n Haushofer, Karl, 251-52, 259 Heidegger, Martin, 203 Heisenberg, Werner, 226-27 Heller, Hermann, 53, 74, 92-93, 160, 167, 202-3 Hermens, Ferdinand, 195 Herrenklub, 133 Hess, Rudolf, 220, 252 Heuss, Theodor, 141 Himmler, Heinrich, 213-14, 237, 239, 241-42, 246 Hindenburg, Paul von, 80-85,

INDEX 118-19, 120η, 128, 146, 152, 18385, 195, 197-98, 207 Hitler, Adolf, 146-47, 184-85, 196, 212, 214-17, 221-22, 250-52, 25459, 268-70 Hobbes, Thomas, 59, 271, 287 Hochland, 50, 52, 140, 179 Hochschule fur Politik. See Deutsch Hochschule fur Politik Hofmann, Hasso, 280 Hohn, Reinhard, 232-33, 236, 24648, 260 Huber, Ernst Rudolf, 48, 182n, 203 Institute for Government Re­ search, 232, 246-47, 260-61 Jacobi, Erwin, 75, 84, 156, 160, 176 Jarres, Karl, 80 Jellinek, Georg, 55 Jellinek, Walter, 11, 74, 123, 170n, 230 Jews. See Schmitt, attitudes to­ ward Jews Jugend und Recht, 237 Jung, Edgar, 212, 213n Jiinger, Ernst, 8, 17, 135-36, 262 Kaas, Ludwig, 184-86 Kaltenbrunner, Ernst, 263 Kant Society (Halle), 116 Kantorowicz, Hermann, 35, 202 Kapp Putsch, 30 Kaufmann, Erich, 54 Kelsen, Hans, 36-39, IlOn, 133, 178, 190, 202 Kempner, Robert M. W., 268-69, 273 Kirchheimer, Otto, 61, 171n, 178 Knab, Otto, 225 Koellreutter, Otto, 222-23, 225, 227, 234, 248-49

Kolnische Volkszeitung, 52, 79, 82,

140, 187 Krauss, Gunther, 237 Kulturkampf, 5 Kunstwart, Der, 133 Laband, Paul, 10 Lagarde, Paul de, 17 Landauer, Carl, 56, 284-85 Lang, Clemens, 168 Laqueur, Walter, 59 Law for the Restoration of a Professional Civil Service, 200 Le Forte, Gertrud, 261 League of Nations, 254 Lebensraum, 252-53, 259, 261, 270. See also Schmitt, Grossraum the­ ory Lenin, 31-32, 286 Lewald, Walter, 275-76 liberalism, 66-70, 88, 91-92, 170 Loerke, Oskar, 261 Lukics, Georg, 207 Luttwitz, General Walther von, 30 Machiavelli, 59, 286 Mann, Thomas, 16-17, 54; Reflec­ tions of a Nonpolitical Man, 23 Mannheim, Karl, 71-72; Ideology and Utopia, 71 Marcks, Erich, 114-16, 136, 152, 172-73, 186, 213 Marx, Karl, 207 Marx, Wilhelm, 79-80, 83, 100 Marxism, 32, 36, 286 Meinecke, Friedrich, 24, 29 Meissner, Otto, 83, 118-19 Melville, Herman, Benito Cereno, 262 Michels, Robert, 14, 66, 71 Mitteleuropa, 251, 253. See also Schmitt, Grossraum theory Moeller van den Brack, Arthur, 57, 60

INDEX Monroe Doctrine, 253-54, 258, 261. See also Schmitt, Grossraum theory Mosca, Gaetano, 66 Miiller, Adam, 25-27; Elements of Statecraft, 25 Miiller, Hermann, 102, 108, 119 Miiller, Paul (Waldemar Gurian), 224 Musil, Robert, 8 Mussolini, 72, 286 Muth, Carl, 50, 94, 140 Muth, Heinrich, 158n, 182n National Assembly, 28, 32 National Socialism. See Nazi Party natural-law theory, 9-10 Naumann, Friedrich, 251 Nawiasky, Hans, 53, 74, 78-79, 160 Nazi Party (NSDAP), 66, 80, 102, 128-29, 132, 143, 146, 153, 172, 183-84, 195-252, 258-70, 272, 276-78, 281-82 Neesse, Gottfried, 221n, 238 Neo-Hegelian, 222 neo-Kantian jurists, 10 Neue Blatter fur den Sozialismus,

168 Neue Merkur, Derl 50

Neumann, Franz, 277 Neumann, Sigmund, 95, 142-43 Niekisch, Ernst, 4, 44, 135-36 normativism, 10 Nuremberg Laws, 228-29 Ohlendorf, Otto, 233 Ossietzky, Carl von, 131-32 Ott, Eugen, 114, 176 Papen, Franz von, 13, 113, 152, 154, 157-58, 166, 169-70, 176-77, 180, 182-85, 199-200, 212, 213n Pareto, Vilfredo, 66, 92-93

Peters, Hans, 160, 167 Plenge, Johann, 17 pluralism, 4, 109-11 political Catholicism. See Catholic Center Party; Schmitt, Carl, po­ litical Catholicism political parties, 14-15, 64-67, 10911, 130, 148-49, 160, 188 Politisches Kolleg, 57-58, 133 Popitz, Johannes, 53, 113-14, 141, 177, 200, 205, 236, 263-64 positivist legal thought, 9-10 presidential system, 117-34, 13739, 144, 146, 152, 172, 191, 224, 240 Preuss, Hugo, 77-78, 227 Prussia, 4-7, 154-66, 168-69, 199 Prussian State Council, 205, 2089, 211, 221, 242 Prussian state-of-siege law (1851), 19 Quabbe, Georg, 169 Radbruch, Gustav, 53, 202 Raumtheorie, 251-54. See also Schmitt, Grossraum theory Reich, Das, 261 Reich, Volksordnung, Lebensraum,

260 Reich commissar, 155, 157, 159, 162, 164-66, 190 Reichsstatthaltergesetz, 200 right-wing intellectuals, 17, 56-58, 132-35, 166-68 Ring, Der, 58, 132, 167 Robson, Charles, 47n Rohm, Ernst, 212, 215 romanticism, 25-27 Roosevelt, Franklin D., 258 Roosevelt, Theodore, 254 Rosenbeig, Alfred, 221, 223, 259 Rossiter, Clinton L., 31n Rosskopf, Veit, 200

INDEX Rousseau, 262, 271-72 Rumpf, Helmut, 282 Russian Revolution, 21, 31-32

—concept of second constitution, 150-51 —concrete order theory, 210, 213 —on concrete situation, 19, 35 —conservative constitutional SA, 146, 152, 212-14 plans for Third Reich, 200-201, Salomon, Albert, 95 208-10, 242 Salomon, Ernst von, 202 —continued significance of his Schaffer, Fritz, 180 ideas, 282-87 Scheler, Max, 17, 35 —controversy over, 275-77, 279Schleicher, General Kurt von, 83, 287 113-19, 135, 146-47, 151-55, 172- —criticism of his constitutional 73, 183-86, 196, 212, 214, 216 theory, 164-69, 178-79 Schmitt, Anima, 44, 266 —critique of Kelsen's pure-law Schmitt, Carl: theory, 36-39 —academic career, 16, 22-23, 43—critique of liberalism and parlia44, 54-55, 62, 88, 107, 189-91, mentarianism, 67-70, 72-73 206, 242, 246-48, 274 —cultural pessimism, 16-18, 58 —on Article 48 and presidential —dictatorship theory, 20, 31-35, power, 20, 33-34, 38, 62-63, 7475-77 77, 139 —distinction between Mossnahmen —attitudes toward Jews and antiand Gesetze, 20, 124-25 Semitic phase, 137, 208, 227-29, —early neo-Kantianism and anti230-31, 234-37, 269, 281-82 positivism, 9, 10-11, 16, 19 —against Ausfiihrungsgesetz, 75, —education, 6-9, 11 Tl, 82 —and Enabling Act, 197-98 —on Ausnahmezustand, 19, 36-39, —equal chance theory, 129, 14861-62, 76-77, 82, 115, 284-85 50, 153, 159-60, 240, 277, 279, —Benito Cereno myth, 262-63 283, 286-87 —on Catholic Church, 11. 27, 48—estimate of human nature, 58, 49, 85-87 87-88 —Catholic heritage and identity, —friend-enemy thesis, 88-91, 253, 4-7, 10, 48-50 277 —and Catholic intellectuals, 50-53 —Grossraum theory, 252-57, 260—character and personality, 4-5, 61, 268-70 7-8, 13, 45-46, 202-3, 212, 227—Hindenburg government's reli­ 28, 244, 250, 265, 273, 281-82, ance on his ideas, 83-84, 118-19, 287 123-26 —on communist threat, 21-22, 31- —Hobbesian concept of protec­ 32, 80, 102, 145, 149, 184, 195, tion and obedience, 204, 245-46, 279, 286 263-64 —concept of commissariat vs. —ideas on Fuhrer, 207, 209-10, sovereign dictatorship, 33-34, 216-17, 220, 231 38 —inner emigration, 243-49, 261

INDEX Schmitt, Carl (cont.) —intellectual breadth and cosmo­ politanism, 8, 59 —interpretation of Weimar consti­ tution, 96-102, 147-51, 176-77, 180-81 —as Kronjurist of presidential sys­ tem and Third Reich, 170-71, 179, 191, 206, 210-11, 225, 24142, 266, 270, 276, 281 —legal and constitutional theory, 19, 36-39, 75-77, 96-102, 110-13, 124-25, 138-39, 147-51, 176-77, 180-82, 187, 189, 197-98, 208-10, 278-79, 282-87 —on limits of constitutional revi­ sion, 97-99, 122, 138-39, 151, 174, 181-82, 279, 283-84, 286-87 —military career, 15-16 —on myth and irrationalism, 5859, 69-70, 281 —Nazi collaboration, 199-200, 203-18, 228-32, 235-37, 242 —Nazi criticism and repudiation of, 202, 210-11, 220-23, 230-31, 239-40, 247-49, 260-62, 270 —and Nazi foreign policy, 256-59, 262, 268-70 —on Nazi racial theory, 208, 228, 247, 259-63, 270 —and Nuremberg trials, 268-75 —obedience to legally constituted authority, 28, 200, 228 —opinions on his ideas and scholarship, 11, 44-45, 49-50, 52-53, 61-63, 92-95, 130-31, 14043, 169-70, 181, 190 —opportunism, 227-30, 234, 236, 238, 240, 242, 276 —opposition to Nazis, 129, 14647, 149, 153, 185, 240 —and political Catholicism, 48-49, 224, 230, 237-38, 240, 261-62

—political consciousness, 16, 23, 25, 35-39, 86-87 —on political romanticism, 24-27 —and political science, 35, 54-55, 95 —political theory of, 85-91 —postwar explanations of Nazi collaboration, 265-67, 270-73 —on president as defender of the constitution and neutral force, 79-81, 112-13, 127, 150-51, 15960, 185, 279 —private life of, 16, 44, 274 —and the problem of resistance, 246, 264, 267 —in Prussia vs. Reich trial, 156-62 —relationship to right-wing intel­ lectuals, 57-60, 135-37, 281 —reputation as teacher, 47, 62-63 —response to critics, 72-73, 93, 186-87, 278-79 —role in presidential system, 12122, 124-25 —SS campaign against, 232-34, 236-42 —standpoint on Weimar Republic and constitution, 27-30, 54, 56, 68-69, 79-81 —and the state, 10, 12, 15, 19, 22, 28, 90-91, 116, 209-10, 221-22, 231, 244-46, 250-51, 285-86 —on the supreme court, 111-12, 149, 155, 157, 160, 164-65 —theory of sovereignty, 35-39 —thoughts on emigration, 203, 217, 241 —on totalitarianism and total state, 34-35, 90, 116, 121-22, 136, 179, 210, 221, 242, 245-46, 280 —on value-neutral constitutional interpretations, 147-51 —as Vernunftrepublikaner, 29, 73

INDEX —viewpoint on political parties and criticism of Parteienstaat, 1415, 68-69, 109-10 —views on Reichstag, 76, 98-99, 100-102, 110-11, 125, 176-77, 180-81

—on war, 89-91 —warning of future legal revolu­ tions, 285-86 —youth, 3-15 Schmitt, Johann, 5, 7 Schmitt, Louise, 4, 7 Schmitt-Dorotic, Carl, 7, 44. See also Schmitt, Carl Schnur, Roman, 276 Schreiber, Georg, 130, 178-79 Schwab, George, 280 Schwarze Korps, Das, 226-27, 23740 Schweizer Weltwoche, 262 Schweizerischen Rundschau, 224 SD (SS security service). See SS Seldte, Franz, 98 Shakespeare, 8 Simmel, Georg, 14; Conflict in Modern Culture, 72

Social Democratic Party (SPD), 65, 80, 102, 108, 127-28, 160, 196 Society for European Economic Planning and Grossraum Econ­ omy, 261 Sorel, Georges, 66, 69 Soviet Union, 255, 257 Spann, Othmar, 60 Spengler, Oswald, 57, 60 SS, 152, 219, 226, 232-41 Stammler, Rudolf, 10 Stapel, Wilhelm, 57, 136-37, 188, 226 state of exception. See Ausnahmezustand

Steinlein. See Schmitt, Louise Sternthal, Friedrich, 50

Stier-Somlo, Fritz, 55, 74, 188 Strauss, David Friedrich, Life of Je­ sus, 6 Strauss, Leo, 169-70 Streicher, Julius, 234 Stresemann, Gustav, 29, 65, 71 subjective occasionalism, 26 SMdeutsche Zeitung, 287

Sulla, 34 Tagliche Rundschau, 153 Tat, Die, 57, 133-35

Terboven, Josef, 211 Thoma, Richard, 72, 74, 79, 100, 131 Times (London), 257-58 Tommissen, Piet, 276 Tonnies, Ferdinand, 35 Troeltsch, Ernst, 17 United States, 253-55, 257-58 University of Berlin, 7, 206, 24243, 246-48 University of Bonn, 43-44, 48, 5455, 62, 88 University of Cologne, 189-91, 202, 206 University of Greifswald, 43 University of Heidelberg, 206 University of Munich, 206 University of Strassburg, 9, 14, 16 university professors, 12, 14-15, 24, 35-36, 55 University Teachers Group of the National Socialist League of German Jurists, 206, 236-37, 239 Versailles, Treaty of, 23, 29, 254, 256 Volkischer Beobachter, 215, 227 Vossische Zeitung, 130, 169

INDEX Watkins, Frederick M., 31 Weber, Alfred, 56 Weber, Max, 23-24, 29, 35, 66; Politics as Profession, 71 Weber, Werner, 248-49, 276 Weimar constitution, 24, 29, 38, 62-63, 79-80, 96-102. See also Ar­ ticle 48 —Article 25, 100-101, 175-76 —Article 54, 98-99, 101-2, 180-81 —Article 68, 147 —Article 76, 97, 99, 111, 197 —constitutional revision, 97-100, 111, 122, 138-39, 145, 150-51,

173, 177-78, 180-83 Weimar Republic, 21-22, 30, 6467, 70-71, 85, 102, 108-10, 11617, 144-45, 174, 177, 183-85, 188 WeltbUhne, 131, 170, 179 Westdeutscher Beobachter, 204 Wilson, Woodrow, 254 Windelband, Wilhelm, 9 World War I, 15-18, 21, 85-86 Zehrer, Hans, 57, 134-35, 139 Zeitschrift filr Geopolitik, 251 Zwade, Erich, 173-74 Zweigert, Erich, 119

LIBRARY OF CONGRESS CATALOGING IN PUBLICATION DATA

Bendersky, Joseph W., 1946Carl Schmitt, theorist for the Reich. Bibliography: p. Includes index. 1. Schmitt, Carl, 18882. Political scientists—Germany—Biography. 3. Political science—Germany—History. 4. Germany—Politics and government—20th century. I. Title. JC263.S34B46 1983 320'.092'4 [B] 82-16353 ISBN 0-691-05380-4