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Popular Sovereignty and the Crisis of German Constitutional Law
The Theory & Practice of Weimar Constitutionalism
By Peter C. Caldwell Duke University Press
Copyright © 1997 Duke University Press
All rights reserved.
ISBN: 978-0-8223-9765-6
CHAPTER 1
THE WILL OF THE STATE AND THE REDEMPTION OF THE GERMAN NATION
Legal Positivism and Constitutional Monorchism in the German Empire
In 1871, in the wake of the Wars of Unification, Germany was unified within a constitutional framework. Otto von Bismarck's foreign policy satisfied nationalistic aims. And liberal majorities in the new national assembly, the Reichstag, and in the individual state assemblies ensured that the new system would fulfill some of the constitutional aims of conservative liberals as well. National Liberalism affirmed the new constitutional monarchy. National Liberals worked closely with the government in the early years of the empire to create the laws and institutions of the new state, from the national court system of the 1870s and the Civil Code of 1900 to statutes limiting "ultramontane" and "internationalist" influence in the 1870s and 1880s.
In this context a new, formal approach to law came to dominate constitutional jurisprudence in the German Empire. In the first edition of his commentary on German state law, Paul Laband, the leading representative of the school, declared that the 1871 Imperial Constitution marked the "redemption" of the German people from its division. For Laband, "redemption" meant the fulfillment of a sacred history: Germany's struggle for existence was resolved. Both he (unaffiliated with a party) and the National Liberals found the Bismarckian system open to centralizing and modernizing reforms. Labandian legal positivism took as its task the description of a constitutional system. And what Laband described, he affirmed. His method and his handbook set the standards for work on constitutional law in the empire.
The affirmative approach to the Bismarckian system expressed itself in the "neutral" language of science. Both Laband's legal positivism and its alleged opponent in the empire, the "organic" state theory of Otto von Gierke (1841-1921), were part of a more general trend within the humanities to emulate natural scientific methods in the nineteenth century. Both schools rejected notions that the law had a transcendent origin: the positivist school insofar as it saw all law as posited by the worldly and human state, and the organic school insofar as it derived laws from the worldly "spirit of the nation" (Volksgeist) in its natural, historical development. At the same time, both positivist and organic theories—in Germany as in other European states in the nineteenth century—assumed that the law comprised a unified system or even a real subject. The positivists assumed that all statutes and ordinances were the expression of a unified "state's will"; the organic theorists presupposed the natural unity of the people or nation (Volk) from which law derived. The two opposing theories of law in the empire shared an anthropomorphism of the state.
Perhaps no one offers better evidence of the connection between the organic and positivist traditions than Laband's forerunner, Carl Friedrich von Gerber (1823-1891). Gerber had become famous before 1848 as a compiler and synthesizer of the many systems of private law in the German-speaking lands. Unlike the historical school of legal scholarship, which sought to derive the validity of a law from its historical origins, Gerber built his system on existing law. In order to synthesize the law (contract law, family law, etc.) of the German states, however, he had to assume an underlying, quasi-organic unity of German law. Gerber extended his work to the realm of state law after the Revolution of 1848, when the issue of German unity had been placed on the table. He attempted to describe German state law using the same method of compiling and synthesizing the law of the many German states. Germany had ceased to exist as a public law entity after the fall of the Holy Roman Empire in 1806. Therefore, Gerber had to presuppose an underlying unity of the legal systems. But he excluded that presupposition of organic unity in the dogmatic, systematic exposition of German state law itself.
Paul Laband applied Gerber's approach to law to the new German state coming into being between 1866 and 1871. Like Gerber, he presupposed an organic connection between state and nation. The statutes and ordinances of the empire expressed the "state's will," which he argued was also the will of society. But unlike Gerber, and to the chagrin of scholars in the organic tradition such as Otto von Gierke, Laband never explicitly theorized how the statutes and ordinances he studied related to the social "organism." Prussia's victory over Austria in 1866 had paved the way for the 1867 Constitution of the North German Confederation, the forerunner of the 1871 Imperial Constitution. Laband simply assumed that all laws based on the 1871 Constitution were valid. Because of Bismarck's success in forging a new state, Laband was able to draw a far stricter line than Gerber had between legal scholarship and politics, history, and sociology.
Born in 1838 to a Jewish professional family in Breslau, Laband converted to Protestantism and entered into a professional career in civil law in the 1860s. In 1870 he turned from his earlier work on the history of Roman civil law to address legal aspects of the constitutional crisis that had raged from 1862 to 1866 in Prussia. His essay on the subject quickly earned Laband praise from the most important law journals and jurists of the time. It followed strict, formal rules of exegesis and exposition and excluded all "politics" in approaching the central problem of the new constitutional system: the requirement that the budget be approved by both monarch and popular assembly to become a valid statute. His next major work, the monumental State Law of the German Empire (1st ed., 1876-82; 5th ed., 1911-13), set out in systematic fashion the entire system of state law of the German Empire. Already by 1872 Laband had become a professor of public law at Strasbourg and a state adviser on legal matters. His State Law was the standard work to which other scholars and even politicians had to refer. Laband was also a co-founder and coeditor of the most important journals of public law in the empire. He died in March 1918, his life as a jurist of state law thus coinciding with the constitutional life of his object, the German Empire.
Laband was not given to long reflections on method, which may help to explain his popularity among practical-minded lawyers, judges, and administrators. His brief statements on method were included in the forewords to the first and second editions of State Law. First, he claimed that the jurist had at his disposal a series of superhistorical concepts (such as dominion, property, and contract) with which to order the legal universe. Laband compared these "legal institutes" to logical categories or forces of nature. Next, he argued that the legal scholar's task was to order existing legal norms logically under the individual concepts. All "nonlegal" aspects of the state, such as "historical, political, and philosophical observations," had "no importance for the exegesis [Dogmatik] of concrete legal material." Laband hoped that by excluding all "external" material, he could find a value-free, logical method of ordering legal norms and explaining their "positive," true content. His lifelong goal was the exclusion of politics, or "caprice" (words Laband used as synonyms), dilettantism, and political journalism from legal science.
With these brief statements, Laband's discourse on method was at an end. His contribution to imperial legal debates lay only partially in his method, however. Laband's main contribution was in his treatment of the most important structural problems of state law facing the German Empire, beginning with his solution to the Prussian constitutional conflict of 1862-66. At issue in that crisis was the viability of the constitutional structure adopted by the new German Empire in 1871.
The Budget Law and Constitutional Monarchism
Laband's Analysis of the Prussian Constitutional Conflict
Over the half century following Napoleon's invasion, the German states had adopted written constitutions that were with few exceptions based on the so-called monarchical principle, according to which the monarch was the sovereign power. The monarch, however, chose to limit his or her power through a constitution imposed on or "condescended" (oktroyiert) to the people. It was, as Ernst-Wolfgang Böckenförde has argued, an inherently unstable system. The monarchical principle found formal expression in the preambles of the constitutions. The preamble to the 1850 Prussian Constitution, for example, declared: "We, Frederick William, King of Prussia by the Grace of God, let it be known and decreed that We ... have definitively established the Constitution in agreement with both chambers." The monarch was the "willing subject" of the constitution. Formally, the monarch had the power to convene representative bodies, although the constitution determined where and how this convocation should occur; he (or, in principle, she) also had the power of absolute veto against any bill passed by the representative body. Furthermore, the monarch alone controlled the entire sphere of administration. The armed forces also fell under the monarch's sole command, free from the assembly's scrutiny or control (the so-called Kommandogewalt). But the constitutions also granted representative bodies the right to vote on laws that would affect the "freedom or property" of citizens, including the yearly budget.
As the state bureaucracies and armies grew in size and expense over the nineteenth century, the possibility of a confrontation over the budget grew as well. But despite the monarchical principle, neither legally nor as a matter of practical politics could the monarch suspend the constitution. In some cases, confrontations over the budget led to a general crisis of the state, as occurred in the Prussian constitutional conflict of 1862-66.
The Revolution of 1848 sought to create a centralized state based on popular sovereignty rather than a constitutional monarchy. The revolution failed, but in its aftermath almost all German states without constitutions adopted one modeled on constitutional monarchism. One such constitution was imposed by Frederick William IV on Prussia in 1850, replacing the more democratic 1848 Prussian Constitution. The 1850 Constitution granted the Landtag, or popular assembly, more powers than the estates-based Prussian assembly of 1847 had possessed. The Prussian king controlled the army and administration, and had the power to make international treaties and declare war and peace. He was also immune to legal prosecution. But the institution of ministerial responsibility transferred legal responsibility for executive actions to the chancellor, in this way enabling the assembly to monitor the executive. The institution of ministerial responsibility remained of limited legal importance, however. The Landtag could not force the king to remove a minister and had legal recourse only in the event of a violation of constitutional law. Nevertheless, an expression of dissatisfaction from the Landtag could have political ramifications whose importance extended far beyond the realm of law, for the Landtag's approval was required for all bills—including the budget presented to it by the monarch each year.
In the early 1860s, the new Prussian monarch William I introduced a series of bills allocating more funds for military expenditures, including an increase in the required military service from two years to three. The liberal majority in the Landtag opposed this proposal for financial and political reasons. As they rightly suspected, the king and his conservative supporters hoped that longer military service would educate citizens to respect the authoritarian state. In March 1862, liberals responded to the king's proposal with the Hague Bill, which would have required a line-item outline of the military budget. In this act the contradiction within the monarchical principle came to the surface. To watch over bills affecting the freedom and property of the citizens, the Landtag logically called for more detailed knowledge of the sphere directly under the monarch's power, the monarchical Kommandogewalt. The crisis resulted in a stalemate, and no budget was approved. The king's dissolution of the Landtag resolved nothing; voters returned an even stronger liberal majority to the assembly. William, on the verge of abdicating, decided to appoint Count Otto von Bismarck the new prime minister of Prussia in September 1862, against the advice of his ministers. Bismarck, an extreme reactionary, was to save the crown from embarrassment at the hands of the Landtag.
Bismarck argued that the constitution provided no means for resolving the conflict. As a result, the crown, as an entity "prior" to the constitution itself, had to fill the "gap" in state law. Therefore, he concluded, the monarch was obliged to operate the state even without a budget. Liberals in the Landtag argued in return that the crown had to stand under the constitution. When the Landtag refused to back down, Bismarck put his theory into practice, and the state continued to function—notably, on the basis of the previous year's budget, not the new one. Although Bismarck operated according to a theory of monarchical sovereignty, he did not take the next step and declare the assembly irrelevant to the state.
Bismarck's foreign policy successes ended the conflict. In 1864, Prussian and Austrian troops attacked Denmark to settle a dispute over German-speaking territories held by the Danes. The German victory fulfilled liberal and nationalist hopes that had been dashed in the aftermath of the nationalist Revolution of 1848. In 1866, Prussian troops defeated Austria in a war sparked in part by conflicts over how to governthe new provinces taken from Denmark. In the aftermath of that victory, Bismarck pulled the northern German states into a constitutional system that was ratified in 1867. Conservative liberals, applauding Bismarck's accomplishments, joined conservatives in 1866 to approve the Indemnification Bill, which retroactively ratified the unratified budgets of the previous years and thus legitimized Bismarck's actions during the crisis. But insofar as the Landtag itself approved the bill and, through it, previous budgets, the Indemnification Bill recognized the principle of control by the assembly over the budget law. The conflict between assembly and monarch was resolved for the time being, but it was not permanently laid to rest.
Prussian victories took the edge off liberal critiques of the constitutional monarchy. It was in this context that Laband published his essay on the constitutional conflict—in 1870, directly before German unification. The timing was propitious. Just as conservative liberals sought to reconcile their values with those of the triumphant Bismarck, Laband offered a method of reading constitutions that appeared rationalistic, formal, and scientific, and affirmed the constitutional status quo.
Laband expressly rejected critical or speculative legal thought in his essay. The existing legal system, he argued, was the legitimate and self-sufficient basis for the analysis of all legal disputes. Only by excluding politics and analyzing the positive-legal aspects of the case could one correctly perceive the "legal truth," Laband claimed. Politics had "unintentionally" invaded debates over the budget, he argued, muddying both the legal state of affairs and the different political positions. His own discussion excluded all references to sovereignty, whether popular or monarchical, and to historical precedent. Implicitly, Laband's argument also implicated the popular assembly as the source of political intrigue. Indeed, with one exception, whenever Laband condemned the entry of politics into law in this essay, he referred to the Landtag's activities.
Legally the problem stood as follows: According to Article 62 of the 1850 Prussian Constitution, the highest legislative power—the power to pass statutes (gesetzgebende Gewalt)—was to be exercised by the king and representative assembly together. According to Article 99, the budget was a statute (Gesetz). Therefore, the budget required the approval of both king and Landtag to be valid. Laband argued that this formal definition of the statute was the binding one in a constitutional monarchy. Nevertheless, he continued, the budget was not substantively a statute; that is, it was not a "legal rule," a "norm for the regulation or determination of legal relations." While his definition of substantive statute was somewhat murky, he seemed to have in mind a legal norm that delimited spheres in which a legal person could exercise its will. The statute in this substantive sense was to be distinguished from an administrative ordinance in a substantive sense, which was not a "legal rule" but rather "legal business." Therefore, although the budget was formally a statute, in terms of its substance or content it was an act of legal business; that is, an administrative ordinance that applied only to the state and its organs.
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Excerpted from Popular Sovereignty and the Crisis of German Constitutional Law by Peter C. Caldwell. Copyright © 1997 Duke University Press. Excerpted by permission of Duke University Press.
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