The Dual State - Ernst Fraenkel PDF
The Dual State - Ernst Fraenkel PDF
T H E DUA L S TAT E
ii
iii
THE DUAL STATE
A CONTRIBUTION TO THE THEORY
OF DICTATORSHIP
ERNST FRAENKEL
translated from the german by e. a. shils,
in collaboration with edith lowenstein
and Kl au s Knorr
With an Introduction by
JENS MEIERHENRICH
1
iv
1
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© Ernst Fraenkel 1941; excluding Introduction © Jens Meierhenrich 2017 and excluding
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v
Contents
vi Contents
Contents vii
Abbreviations 209
Notes 211
Appendix to the 1941 Edition: Reichsgesetzblatt
(Official Statute Book) 241
Appendix I to the 1974 German Edition: Proceeding
before the Reichsarbeitsgericht (Reich Labour Court) 242
Appendix II to the 1974 German Edition: Proceeding
before the Amtsgericht (District Court) Berlin 245
Table of Cases 247
Index 251
viii
ix
The conditions under which this book was conceived and written
deserve a brief comment. The book is the product of the paradoxical
isolation enforced upon those who lived and carried on their work
in the Germany of National-Socialism although they were opposed
to this regime. The purpose of the author was to describe the basic
principles of the legal and constitutional developments of the Third
Reich. His activity as a practising attorney in Berlin from 1933–38
provided the close and continuous contact with the legal system of
National-Socialism necessary to check and recheck his generaliza-
tions by confronting them with the reality of practice.
In writing this book the author had at his disposal all the National-
Socialist sources pertinent to his subject, including all the sig-
nificant decisions published in the different German law reviews.
Unfortunately it was impossible for him to take account of material
unavailable in Germany, such as the writings of the German emigrés
and many other publications outside Germany. Essentially the manu-
script was completed before the author left Germany.
The course of this work was fraught with many difficulties. Its pub-
lication would have been impossible without the generous assistance
of a number of friends.
For financial assistance, the author gratefully acknowledges his
indebtedness to:
The American Guild for German Cultural Freedom; the Graduate
Faculty of Political and Social Science organized by the New School
for Social Research; the International Institute of Social Research;
Professor Alfred E. Cohn, New York; Dr. Fritz Karsen, New York; and
Dr. Frederick Pollock, New York.
The manuscript has been read and many valuable sugges-
tions have been offered by Professor Arthur Feiler, New School
of Social Research, New York; Professor C. J. Friedrich, Harvard
x
1
Source: “Vorwort zu deutschen Ausgabe,” in Ernst Fraenkel, Der Doppelstaat,
translated by Manuela Schöps (Frankfurt: Europäische Verlagsanstalt, 1974), 11–18.
xiv
2
For a discussion of the original German version, the Urdoppelstaat, its gesta-
tion and relation to all other editions of The Dual State, see Jens Meierhenrich, “An
Ethnography of Nazi Law: The Intellectual Foundations of Ernst Fraenkel’s Theory of
Dictatorship,” in this volume.
xv
3
For a translation of these case histories, see Appendix I and II to the 1974 German
Edition, in this volume. They were not heretofore available in English.
xvii
erste Fassung”) of The Dual State found its way to freedom (“in die
Freiheit”).
In the final phase of my legal practice, I frequently described my
work to friends as that of a switchman (“Weichensteller”). That is,
I regarded it an essential part of my efforts to ensure that a given
case was dealt with under the auspices of the “normative state,” and
not end up in the “prerogative state.” Colleagues with whom I was
on friendly terms confirmed that they, too, had repeatedly worked
toward making sure that their clients were punished in a court of law
(“daß ihre Mandanten gerichtlich bestraft würden”) [rather than risk-
ing their arbitrary punishment in the prerogative state].
I first met Martin Gauger— the legal counsel of the Lutheran
Council, who was murdered in Buchenwald in 1941—in 1934 or
1935. We were introduced by Harold Pölchau, the prison chaplain in
Tegel [a suburb in the north of Berlin, the seat of one of Germany’s
oldest and largest prisons]. Back then, any and all organizations and
associations that belonged to or were otherwise connected with the
so-called Bekennende Kirche [literally: “Confessing Church,” a break-
away movement of the Protestant Church led by, among others,
Martin Niemöller, Karl Barth, and Dietrich Bonhoeffer, that opposed
the Nazi government’s attempts to “nazify” the Protestant Church
in Germany, i.e., to turn it into an institution of racial dictatorship]
were subjected to the same persecution and harassment as the Social
Democratic and unionized workers’ movement several years prior.
Because I had repeatedly given legal advice to the latter, I was able to
speak from experience. The case of Delatowsky und Genossen in the
appendix [a case history of which is reproduced below as Appendix I]
may illustrate what could happen in such a proceeding.
My exchanges with Martin Gauger initially revolved around tech-
nical questions of law, not least because such questions had, ever
since the intensification of the church struggle (“Zuspitzung des
Kirchenkampfs”) [i.e., the increasingly contentious politics about the
question of the relationship between the Nazi state and the country’s
churches], begun to take up a great deal of his time. But our talks
were not limited to discussing concrete legal problems. It was inevi-
table that our conversations, many of which lasted until late into the
night, would also touch upon the jurisprudential, philosophical, and
sociological aspects of the phenomenon of the “dual state.” It was not
without astonishment that we both realized how grotesquely dis-
torted the image was that each of us had had of the type of human
xx
4
The publication in question is Werner Best, “Neubegründung des Polizeirechts,”
Jahrbuch der Akademie für Deutsches Recht, vol. 4 (1937), 132–52.
xxi
xxiv Introduction
Introduction xxv
those who think that the Normative State has already disappeared or
that, if it exists, it is a mere remnant of the old state and therefore
doomed to oblivion, that a nation of 80 million people can be con-
trolled by a plan only if certain definite rules exist and are enforced
according to which the relations between the state and its members,
as well as the relations between the citizens themselves, are regulated.
These problems will be dealt with in the third part of the book.
It must be clearly understood that when we speak of the Dual State
we do not refer to the co-existence of the state bureaucracy and the
party bureaucracy. We do not place great importance on this new fea-
ture of German constitutional law. Although National-Socialist litera-
ture often discusses the problem and although this book will refer to it
occasionally, an attempt to find the exact legal distinction between the
two would be futile. State and party are increasingly becoming identi-
cal, the dual organizational form is maintained merely for historical
and political reasons.
In a speech at Weimar in July 1936, Hitler himself defined the line
of demarcation between state and party. He asserted that government
and legislation should be the task of the party, administration the task
of the state. Obviously this statement has little value as a juridical
explanation. Neither in legislation nor in administration is it possible
to distinguish the activities of the state and the party; not even the
administrative activities are a monopoly of the state. When we speak
of the state therefore we are using the term in its broader sense, i.e., as
the entire bureaucratic and public machine consisting of the state in
the narrower sense and of the party with its auxiliary organizations.
Whether this amalgamation of state and party is useful for the analy-
sis of legal social phenomena remains to be seen. In order to facilitate
the analysis of a more significant distinction within this system of
the Third Reich, the author feels justified in neglecting one of lesser
importance. Both the party and the state in its narrower sense func-
tion within the scope of the Normative State and the Prerogative State.
Preoccupation with the superficial distinction between party and
state tends to efface the more significant distinction between the
Normative State and the Prerogative State.
xxvi
xxvi Introduction
INTRODUCTION
1
Jakob Zollmann, “The Law in Nazi Germany: Ideology, Opportunism, and the
Perversion of Justice” (Book Review), German History, vol. 32 (2014), 496.
xxviii
2
Jens Meierhenrich, The Legacies of Law: Long- Run Consequences of Legal
Development in South Africa, 1652– 2000 (Cambridge: Cambridge University
Press, 2008).
3
Relevant rule- law scholarship includes Thomas Carothers, Promoting the
of-
Rule of Law Abroad: In Search of Knowledge (Washington: Carnegie Endowment
for International Peace, 2006); Jane Stromseth, David Wippman, and Rosa Brooks,
eds., Can Might Make Rights? Building the Rule of Law after Military Intervention
(Cambridge: Cambridge University Press, 2006); James E. Fleming, ed., Getting to the
Rule of Law, Nomos L (New York: New York University Press, 2011); Rachel Kleinfeld,
Advancing the Rule of Law Abroad: Next Generation Reform (Washington: Carnegie
Endowment for International Peace, 2012); David Marshall, The International Rule
of Law Movement: A Crisis of Legitimacy and the Way Forward (Cambridge: Harvard
University Press, 2014); and Paul Gowder, The Rule of Law in the Real World
(Cambridge: Cambridge University Press, 2016).
4
This introductory chapter draws on Jens Meierhenrich, The Remnants of the
Rechtsstaat: An Ethnography of Nazi Law, Book manuscript, September 2016.
xxix
5
Simone Ladwig-Winters, Ernst Fraenkel: Ein politisches Leben (New York: Campus
Verlag, 2009), 21–6.
6
Hubertus Buchstein and Rainer Kühn, “Vorwort zu diesem Band,” in Ernst
Fraenkel, Gesammelte Schriften, vol. 1: Recht und Politik in der Weimarer Republik,
edited by Hubertus Buchstein (Baden-Baden: Nomos, 1999), 17.
7
Fraenkel, “Anstatt einer Vorrede,” 15. Unless stated otherwise, all translations
from the German are mine.
8
Ibid., 20.
xxx
The Weimar Years
After the war, Fraenkel embarked on a law degree at the University
of Frankfurt, a progressive, privately funded institution that had
opened its doors just a few years earlier. There the lectures of Hugo
Sinzheimer (1875–1945) left the deepest impressions on Fraenkel.
Sinzheimer had joined the law faculty in 1920 to take up the first
chair in Germany in the new field of labor law (Arbeitsrecht). Aside
from advancing this new field, and his related interest, the sociologi-
cal study of law, it was Sinzheimer’s ambition to help train a new gen-
eration of lawyers, one that would be socially aware and committed
to creating a fair and equitable society.9 To this end, Sinzheimer also
founded, and edited between 1925 and 1931, the journal Die Justiz, a
publication of the Republican Federation of Judges (Republikanischer
Richterbund) that sought to push against the dominance of doctrinal-
ism and legal positivism in the legal profession. Sinzheimer’s com-
mitment to social justice—and his conception of labor law as a tool to
advance it—exerted a lasting influence on Fraenkel.
Upon completing his legal education, and the applied training of
his Referendariat, Fraenkel quickly turned to private practice. He also
began to contribute more regularly commentary to left-leaning pub-
lications such as Die Tat, Vorwärts, and the Jungsozialistische Blätter
as well as to specialized scholarly outlets like Arbeitsrecht. His passion
for social causes in general, and labor law in particular, netted him
invitations to workshops and conferences. It followed ever closer con-
tact with the trade union movement.10
In February 1926, Fraenkel took up a position as legal adviser to
the German Metalworkers Union (Deutscher Metallarbeiterverband).
Under its auspices, he assumed a teaching position in Bad
Dürrenberg, near Leipzig, where the trade union had just opened
a Wirtschaftsschule, an educational institution aimed at instructing
metalworkers in questions of law and economics as well as at intro-
ducing them to more general subjects.11 Fraenkel saw his mission
as that of contributing to “the struggle for the emancipation of the
9
See Hugo Sinzheimer, “Was Wir Wollen,” Die Justiz, no. 1 (1925), reprinted
in Hugo Sinzheimer and Ernst Fraenkel, Die Justiz in der Weimarer Republik: Eine
Chronik, edited by Thilo Ramm (Neuwied: Luchterhand, 1968), 19–23.
10
Ladwig-Winters, Ernst Fraenkel, 56–7.
11
See Ernst Fraenkel, “Die Wirtschaftsschule des Deutschen Metallarbeiterverbandes
in Bad Dürrenberg” [1926], in Fraenkel, Gesammelte Schriften, vol. 1, 163–6.
xxxi
Ibid., 163.
12
18
Fraenkel, “Rechtssoziologie als Wissenschaft,” 370–1. 19
Ibid., 370.
20
Paul Laband, Das Staatsrecht des deutschen Reiches, 3 vols., second edition
(Tübingen: Mohr, 1888).
21
I quote Laband in the translation provided in Stefan Korioth, “The Shattering of
Methods in Late Wilhelmine Germany,” in Arthur J. Jacobson and Bernhard Schlink,
eds., Weimar: A Jurisprudence of Crisis (Berkeley: University of California Press,
2000), 43.
xxxiii
Ibid., 43.
22
Karl Jaspers, The Idea of the University, edited by Karl W. Deutsch, translated by
23
26
Roger B. M. Cotterrell, “Interdisciplinarity: The Expansion of Knowledge and
the Design of Research,” Higher Education Review, vol. 11 (1979), 55.
27
Otto Kirchheimer, “Einführung,” in Sinzheimer and Fraenkel, Die Justiz in der
Weimarer Republik, 14–15.
xxxv
The Nazi Years
Just before the burning of the Reichstag in Berlin on February 27,
1933, Fraenkel threw down the gauntlet, issuing a daring challenge
to the insurgent Nazis. In his final article for Die Justiz he voiced his
opposition to the brownshirt revolution in no uncertain terms: “We
proudly fly the flag. On this flag these words are written: Against arbi-
trary rule!”28 We now know that Fraenkel at the time underestimated
the threat that the Nazis posed. He misjudged how few adherents the
democratic ideal truly had in his native Germany and how irreparably
divided the fledgling anti-Nazi alliance was. The gravity of the situa-
tion was driven home on a personal level at the end of March, when
police detained Hugo Sinzheimer, Fraenkel’s mentor, in Frankfurt,
and placed him in protective custody (Schutzhaft), ostensibly for his
own protection.29 It was the beginning of the destruction of Jewish life
and thought in Nazi Germany.30
On May 2, 1933, the new regime outlawed the country’s trade unions,
including the German Metalworkers Union. SA forces stormed the
headquarters at Alte Jakobstraße and systematically rounded up sus-
pected enemies of the state, including Franz Neumann. On May 9,
Fraenkel received his Vertretungsverbot, an official notification that
he, as a Jew, was henceforth prohibited from representing clients in a
German court of law.31 Neumann received the same notice and took
the opportunity to flee abroad before things could get worse. Fraenkel
decided to stay in Berlin. He appealed his prohibition to practice
law, as did around 1,700 other Jewish lawyers in the city. Although
the Nazis were only tolerating Jewish lawyers with a Frontkämpfer-
background, that is, individuals who had been involved in military
28
Ernst Fraenkel, “XLIII,” Die Justiz, February 1933, reprinted in Sinzheimer and
Fraenkel, Die Justiz in der Weimarer Republik, 396.
29
Ladwig-Winters, Ernst Fraenkel, 92.
30
For a comprehensive overview, see Saul Friedländer, Nazi Germany and the Jews,
vol. 1: The Years of Persecution, 1933–1939 (London: Weidenfeld and Nicolson, 1997).
See also Martin Dean, Robbing the Jews: The Confiscation of Jewish Property in the
Holocaust, 1933–1945 (Cambridge: Cambridge University Press, 2008) and Wolfgang
Benz, ed., Die Juden in Deutschland 1933–1945: Leben unter nationalsozialistischer
Herrschaft (Munich: Beck, 1988).
31
Ladwig-Winters, Ernst Fraenkel, 99.
xxxvi
32
It bears emphasizing that Neumann’s situation was different from Fraenkel’s. He
did not enjoy the limited and temporary privilege of a former Frontsoldat, which is
why his situation in 1933 was more precarious than Fraenkel’s.
33
Fraenkel describes one such case in Appendix II to the 1974 German Edition of
The Dual State. His summary of the proceeding before the Amtsgericht (district court)
Berlin appears in this volume for the first time in English translation.
34
Fraenkel reflected on this time and its legal tactics, in a typically detached fash-
ion, in “Auflösung und Verfall des Rechts im III. Reich” [1960], in Ernst Fraenkel,
Gesammelte Schriften, vol. 2: Nationalsozialismus und Widerstand, edited by Alexander
v. Brünneck, Hubertus Buchstein, and Gerhard Göhler (Baden-Baden: Nomos, 1999),
617–18. For a discussion of specific cases, see Douglas G. Morris, “The Dual State
Reframed: Ernst Fraenkel’s Political Clients and His Theory of the Nazi Legal System,”
Leo Baeck Institute Yearbook, vol. 58 (2013), 5–21. For a recent account of a “humane”
Nazi judge, in Fraenkel’s parlance, see Herlinde Pauer-Studer and J. David Velleman,
Konrad Morgen: The Conscience of a Nazi Judge (London: Palgrave, 2015).
35
Ernst Fraenkel, “In der Maschine der politischen Strafjustiz des III. Reiches”
[1934], in Fraenkel, Gesammelte Schriften, vol. 2, 475–484. On the ISK’s role and strat-
egies of contention in the resistance to Nazism, see Sabine Lemke-Müller, ed., Ethik
des Widerstands: Der Kampf des Internationalen Sozialistischen Kampfbundes (ISK)
gegen den Nationalsozialismus (Bonn: Dietz, 1996).
xxxvii
from Berlin, its perverse outcome, and the investigation and adjudi-
cation that directly led to it. For Fraenkel, it was meaningful, and thus
important to publicize, because as an example of political justice it
represented “an everyday occurrence” (“eine alltägliche Geschichte”).36
In 1935, this time under the pseudonym “Fritz Dreher,” Fraenkel pub-
lished again in the Sozialistische Warte.37 This time it was a rallying
cry. Fraenkel was seized by a desire to energize and fortify resistance
to Nazi rule. His biographer has observed that it was at this moment
that Fraenkel gave up his analytical detachment and “political action
became the center” of his depleted life.38 During this more overt phase
of his resistance, Fraenkel called upon “socialist workers” to take on
a leadership role.39 Had Nazi authorities uncovered Fraenkel’s pseu-
donymous identity, he would most certainly have been tried—and
sentenced—for high treason. His legal representation of some of the
resisting Jews of Berlin was already a thorn in the Nazi authorities’
side. In the fall of 1938, the Fraenkels left Nazi Germany in great
haste. Fraenkel’s name had appeared on a Gestapo list. His life was
now in danger.
After a brief spell in Great Britain, Fraenkel and his wife found ref-
uge in the United States. It was an extraordinarily trying time for him.
His professional life was in tatters, income meager or non-existent.
With no other prospects, he decided to become a student again. In
the fall of 1939, he enrolled for a J.D. at the University of Chicago
Law School. To finance his studies, Fraenkel applied and received a
highly competitive scholarship from the American Committee for
the Guidance of Professional Personnel. As part of his application,
Fraenkel had included the second English-language draft of The
Dual State.
In the remainder, I chart the long and winding road that led to
the publication of The Dual State. Fraenkel certainly took the one less
traveled by. I show why, and how, this made all the difference: how it
resulted in the making of a slow-burning classic, the intellectual signif-
icance of which far surpasses that of the other, more influential book
about the Nazi dictatorship that appeared in the early 1940s—Franz
36
Fraenkel, “In der Maschine der politischen Strafjustiz des III. Reiches” [1934],
475.
37
Ernst Fraenkel, “Der Sinn illegaler Arbeit,” in Fraenkel, Gesammelte Schriften,
vol. 2, 491–7.
38
Ladwig-Winters, Ernst Fraenkel, 116.
39
Fraenkel, “Der Sinn illegaler Arbeit,” 495.
xxxvii
Fraenkel completed the manuscript for the English edition of The Dual
State on June 15, 1940.40 Oxford University Press published it in early
1941. But the journey from the book’s conception to its eventual pub-
lication was arduous and probably more so than Fraenkel anticipated
when he first commenced his research in Nazi Germany in 1936.
Fraenkel was one of the most visible jurists in Weimar Germany.
Alongside Max Alsberg, Hermann Heller, Max Hirschberg, Hans
Kelsen, Otto Kahn- Freund, Otto Kirchheimer, Franz Neumann,
Gustav Radbruch, Carl Schmitt, and Hugo Sinzheimer, to name but
the most recognizable theorists and practitioners, he was a party to
some of the most important legal debates of his time.41 As a veteran of
World War I, he was allowed to practice law until November 30, 1938,
when all remaining lawyers of Jewish ancestry were banned from
their profession. With the “Fifth Ordinance of the Reich Citizenship
Law” (Fünfte Verordnung zum Reichsbürgergesetz) of September 27,
1938, the Nazi regime completed its purge of the legal profession.42
40
Ernst Fraenkel, “Preface to the 1974 German Edition,” in this volume, xiii–xxi.
41
For biographical sketches of left-leaning jurists in Weimar and Nazi Germany,
see, most notably, Kritische Justiz, ed., Streitbare Juristen: Eine andere Tradition
(Baden- Baden: Nomos, 1988); and Bundesrechtsanwaltskammer, ed., Anwalt
ohne Recht: Schicksale jüdischer Anwälte in Deutschland nach 1933 (Berlin: be.bra
Verlag, 2007).
42
Reichsgesetzblatt 1938 I, 1403– 1406. For a comprehensive compilation of
Nazi decrees, legislation, and other legal instruments, see Ingo von Münch, ed.,
Gesetze des NS-Staates: Dokumente eines Unrechtssystems, third, enlarged edition
(Paderborn: Schöningh, 1994).
xxxix
The first, partial purge had taken place shortly after Hitler’s seizure
of power in 1933, when the newly installed regime, in connection
with the more general “Law for the Restoration of the Professional
Civil Service” (Gesetz zur Wiederherstellung des Berufsbeamtentums),
on April 7, 1933 adopted a law mandating the disbarment of Jewish
lawyers by September 30 of that year.43 At the time, the 4,394 German
lawyers with a Jewish background accounted for 20 percent of the
approximately 19,500 members of the Bar in Germany.44
Yet to the chagrin of various legal representatives of the Nazi regime,
Fraenkel and a considerable number of other Jewish lawyers were
exempt from the provisions of this “Law on Admission to the Bar”
(Gesetz über die Zulassung zur Rechtsanwaltschaft).45 Either they had,
like Fraenkel, contributed to the war effort, had lost fathers or sons
in World War I, or they had opened their legal practice prior to 1914,
in which case they were classified as Altanwälte (“Old Lawyers”) and
thus also entitled to continued bar membership.46 Konrad Jarausch
estimates that 60 percent of all Jewish lawyers fell into one of these
categories and thus outside of the purview of the legal ban.47 Ingo
Müller found that an even larger percentage escaped the draconian
legislation: He calculated that 2,900 Jewish lawyers, or 65 percent of
their total number, “were still permitted to practice,” whereas 1,500
were stripped off their Bar membership during this first concerted
effort at displacing Germany’s Jews from legal life.48 Saul Friedländer,
finally, suggests that as many as 70 percent of Jewish lawyers were
Ingo Müller, Hitler’s Justice: The Courts of the Third Reich, translated by Deborah
44
Lucas Schneider (Cambridge: Harvard University Press, 1991), 61. See also Fritz
Osler, “Rechtsanwälte in der NS-Zeit,” Anwaltsblatt, vol. 33 (1983), 59. Jarausch
puts the number of attorneys and notaries who were practicing in Germany in
1933 at 19,364. On his count, the legal profession that year was comprised of 10,450
judges. See Konrad Jarausch, The Unfree Professions: German Lawyers, Teachers,
and Engineers, 1900–1950 (New York: Oxford University Press, 1990), 237. For an
overview of the development of the German Bar from its establishment in 1878
until 1945, with particular reference to the period of Nazi dictatorship, see Kenneth
C. H. Willig, “The Bar in the Third Reich,” American Journal of Legal History, vol.
20 (1976), 1–14.
45
Reichsgesetzblatt 1933 I, 188–9.
46
This exemption was included in the legislation at the urging of Reich President
Paul von Hindenburg.
47
Jarausch, The Unfree Professions, 129.
48
Müller, Hitler’s Justice, 61. See also Fritz Osler, “Rechstanwälte in der NS-Zeit,”
Anwaltsblatt, vol. 33 (1983), 61.
xl
xl An Ethnography of Nazi Law
49
Friedländer, Nazi Germany and the Jews, vol. 1, 29. Friedländer works with a
slightly larger starting figure than Müller, writing of 4,585 Jewish lawyers to begin
with. Of these he believes, 3,167 initially retained their Bar membership. Out of 717
Jewish judges and state prosecutors, another 336 continued their work. Based on these
figures, Friedländer claims that Jews, in June 1933, still comprised more than 16 per-
cent “of all practicing lawyers in Germany.” Ibid., 29. For his figures, Friedländer draws
on Avraham Barkai, From Boycott to Annihilation: The Economic Struggle of German
Jews, 1933–1943, translated by William Templer (Hanover: University Press of New
England, 1989), 4.
50
Friedländer, Nazi Germany and the Jews, vol. 1, 29.
51
Ernst Fraenkel, “Das Dritte Reich als Doppelstaat” [1937], in Fraenkel, Gesammelte
Schriften, vol. 2, 504.
xli
Ibid., 504–19.
52 53
Ibid., 505. 54
Ibid., 505. 55
Ibid., 505.
56
Ibid., 505. For the original spelling, see ibid., 509, 512, 514.
57
xlii
58
Ibid., 507. 59
Ibid., 508. 60
Ibid., 509. 61
Ibid., 509.
62
Ibid., 510. See also my discussion of Weber’s typology of law below.
xliii
Ibid., 510.
63
1933), 30.
65
Fraenkel, “Das Dritte Reich als Doppelstaat” [1937], 512.
66
Generally, see Dan Silverman, Hitler’s Economy: Nazi Work Creation Programs,
1933–1936 (Cambridge: Harvard University Press, 1998).
67
Adam Tooze, The Wages of Destruction: The Making and Breaking of the Nazi
Economy (London: Penguin, 2008), 114.
68
Fraenkel, “Das Dritte Reich als Doppelstaat” [1937], 517.
xliv
69
Ibid., 518. 70
Tooze, The Wages of Destruction, 114.
71
Fraenkel, “Das Dritte Reich als Doppelstaat” [1937], 518.
72
Ibid., 514.
xlv
73
Ibid., 507. On the anatomy of the so-called “Conservative Revolution” in Weimar
Germany, see, most important, Fritz Stern, The Politics of Cultural Despair: A Study
in the Rise of the Germanic Ideology (Berkeley: University of California Press, [1961]
1992); Jeffrey Herf, Reactionary Modernism: Technology, Culture, and Politics in Weimar
and the Third Reich (Cambridge University Press, 1984); Stefan Breuer, Anatomie
der Konservativen Revolution (Darmstadt: Wissenschaftliche Buchgesellschaft,
1993); Rolf Peter Sieferle, Die Konservative Revolution: Fünf biographische Skizzen
(Frankfurt: Fischer, 1995); and Martin Travers, Critics of Modernity: The Literature of
the Conservative Revolution in Germany, 1890-1933 (New York: Peter Lang, 2001). For
a sympathetic chronicle of the Konservative Revolution by the scholar who, in 1949,
invented the term, see Armin Mohler, Die Konservative Revolution in Deutschland
1918–1932: Ein Handbuch, second, enlarged edition (Darmstadt: Wissenschaftliche
Buchgesellschaft, 1972). On anti-democratic thought in interwar Germany more gen-
erally, see Kurt Sontheimer, Antidemokratisches Denken in der Weimarer Republik
(Munich: Deutscher Taschenbuch Verlag, [1962] 1978).
74
Ibid., 514.
75
On Carl Schmitt, see, most recently, the contributions to Jens Meierhenrich and
Oliver Simons, eds., The Oxford Handbook of Carl Schmitt (Oxford: Oxford University
Press, 2016).
xlvi
76
Fraenkel, “Das Dritte Reich als Doppelstaat” [1937], 506. Carl Schmitt, The Crisis
of Parliamentary Democracy, translated by Ellen Kennedy (Cambridge: MIT Press,
[1923] 1988).
77
Fraenkel, “Das Dritte Reich als Doppelstaat” [1937], 515.
78
Ibid., 515.
79
Fraenkel here invoked a formulation that Hermann Heller had used in Europa
und der Fascismus (Berlin: De Gruyter, [1929] 2014), the phrase apparently a fascist’s
response to the question of what characterized the nature of fascism. Fraenkel, “Das
Dritte Reich als Doppelstaat” [1937], 515.
80
Fraenkel, “Das Dritte Reich als Doppelstaat” [1937], 517.
81
Ibid., 517.
xlvii
business and the racial state. The 1937 article ended on a rhetorically
powerful note. Fraenkel declared that embedded in the “substantive
rationality of National Socialism” was a desire for the destruction of
the world. National Socialism was only “alive,” he opined, because “it
was readying itself to kill” (“[der Nationalsozialismus] nur dadurch zu
leben vermag, daß er sich zum Töten vorbereitet”).82
The Urdoppelstaat (1938)
Fraenkel’s first foray in the Sozialistische Warte quickly developed into a
draft, clandestine manuscript, entitled Der Doppelstaat: Ein Beitrag zur
Staatslehre der deutschen Diktatur (The Dual State: A Contribution to the
State Theory of the German Dictatorship; hereinafter Urdoppelstaat).83
The book-length treatment retained the unique blend of reason and
emotion—of, on the one hand, dispassionate analysis that embodied
the Weberian ideal of value neutrality, and, on the other, vociferous
advocacy in opposition to the Nazi destruction of the Rechtsstaat.
Given its explosive nature, one of Fraenkel’s clients, Wilhelm Urban,
a coal merchant active in the anti-Nazi resistance, temporarily hid the
sensitive draft.84 The book manuscript, written in German and only
ever intended for an audience in his fatherland, found its way to the
United States via France by way of a French embassy official. One of
Fraenkel’s most trusted colleagues in this period—Fritz Eberhardt
(the pseudonym of Hellmut von Rauschenplat)— was not only
critical to the beginnings of the Urdoppelstaat but also to its
survival.85 As Fraenkel recalled in his preface to the 1974 German
edition:
This book could not have been completed without the encourage-
ment and continuous support of the Internationaler Sozialistischer
Kampfbund, which was very active and exemplarily disciplined in
Ibid., 519.
82
267–473.
84
Ernst Fraenkel, “Erklärung über die Tätigkeit des Herrn Wilhelm Urban in den
Jahren 1933 bis 1938 vom 22. Oktober 1953,” BArch N 1274 (Fraenkel, Ernst)/11,
reprinted in Fraenkel, Gesammelte Schriften, vol. 2, 625.
85
Note that uncertainty surrounds the spelling of von Rauschenplat’s pseudonym.
Fraenkel himself, in the 1974 German edition, rendered it as “Eberhardt,” which
I have adopted. The editors of the 2012 German edition of The Dual State have done
the same. However, both Fraenkel’s biographer and the editors of his collected works
have opted for “Eberhard” instead.
xlviii
Ibid., xv.
87
David Collier, “Data, Field Work, and Extracting New Ideas at Close Range,”
88
l An Ethnography of Nazi Law
not end up in the “prerogative state.” Colleagues with whom I was on
friendly terms confirmed that they, too, had repeatedly worked toward
making sure that their clients were punished in a court of law (“daß
ihre Mandanten gerichtlich bestraft würden”) [rather than risking their
arbitrary punishment in the prerogative state].90
Eventually, the prerogative state turned on Fraenkel himself. When,
in 1935, his name appeared on a Gestapo list of thirteen lawyers
whose representation of SPD defendants had rankled the Nazi
authorities, Fraenkel and his wife decided to seek refuge abroad. They
left Germany on September 20, 1938, a mere six weeks before the
first systematic violent anti-Jewish pogrom—known by the euphe-
mism “Kristallnacht”—in the course of which 267 synagogues were
destroyed, an estimated 7,500 Jewish commercial establishments van-
dalized or looted or both, and 30,000 Jewish males rounded up and
transferred to concentration camps.91
After a brief stay in London, to where Fraenkel’s fellow lawyer
friends Otto Kahn- Freund and Franz Neumann had previously
emigrated, the Fraenkels fled to New York. Family connections
meant that entry to the United States was assured and a visa easily
obtained. Fraenkel’s most important cargo—what he referred to as the
Urdoppelstaat—made the journey by way of a French embassy official
in Berlin. The brave diplomat, whom Eberhardt had drafted into the
cause, hid the book manuscript in his diplomatic luggage and smug-
gled it to Paris—thus securing the work’s survival.92 We now know that
a carbon copy was buried for safekeeping in the garden of Otto and
Susanne Suhr, but it was the well-travelled copy of the Urdoppelstaat
that would serve as the foundation for the revision in exile.93 This first
draft (“die erste Fassung”) was the nucleus of The Dual State.94
An Ethnography of Nazi Law li
Ibid., xiii–xiv.
95
Ernst Fraenkel, Letter to Alexander v. Brünneck, April 23, 1970, BArch N 1274
96
Part I: Die Rechtsordnung des Doppelstaates (97 pages) Part I: Die Rechtsordnung des Doppelstaates (103 pages)
Chapter 1: Der Maßnahmenstaat (52 pages) Chapter 1: Der Maßnahmenstaat (57 pages)
Chapter 2: Die Grenzen des Maßnahmenstaates (8 pages) Chapter 2: Die Grenzen des Maßnahmenstaates (6 pages)
Chapter 3: Der Normenstaat (33 pages) Chapter 3: Der Normenstaat (36 pages)
Part II: Die Rechtslehre des Doppelstaates (49 pages) Part II: Die Rechtslehre des Doppelstaates (45 pages)
Chapter 1: Die Negation des rationalen Naturrechts durch den Chapter 1: Die Ablehnung des rationalen Naturrechts durch den
Nationalsozialismus (6 pages) Nationalsozialismus (7 pages)
Chapter 2: Der Nationalsozialismus im Kampf gegen die Restbestände des Chapter 2: Der Nationalsozialismus im Kampf gegen das Naturrecht (17
rationalen Naturrechts (22 pages) pages)
Chapter 3: Nationalsozialismus und gemeinschaftliches Naturrecht (17 pages) Chapter 3: Nationalsozialismus und gemeinschaftliches Naturrecht (17 pages)
Part III: Die Rechtswirklichkeit des Doppelstaates (54 pages) Part III: Die Rechtswirklichkeit des Doppelstaates (56 pages)
Chapter 1: Die Rechtsgeschichte des Doppelstaates (18 pages) Chapter 1: Die Rechtsgeschichte des Doppelstaates (17 pages)
Chapter 2: Die Oekonomie des Doppelstaates (8 pages) Chapter 2: Die ökonomischen Grundlagen des Doppelstaates (16 pages)
Chapter 3: Die Soziologie des Doppelstaates (24 pages) Chapter 3: Die Soziologie des Doppelstaates (19 pages)
Note: For the sake of accuracy, the comparison is based on the 1999 German editions of both books as they appear in Ernst Fraenkel’s collected works. See Fraenkel, Der Urdoppelstaat
[1938], in Gesammelte Schriften, vol. 2, 267–473; and Fraenkel, Der Doppelstaat [1974], in Gesammelte Schriften, vol. 2, 33–266. For the purpose of this exercise, I leave aside for the
moment the editorial and substantive differences between the 1941 English edition and the 1974 German edition. The latter was the product of a slightly modified retranslation of
the former.
liii
99
Fraenkel, Der Doppelstaat [1941], 173–84; Fraenkel, Der Urdoppelstaat [1938],
384–400.
100
See, for example, Franz Neumann’s glowing review of Harold Laski’s 1935 The
State in Theory and Practice, which he praised for coming to “a real Marxist conclu-
sion.” See idem., “On the Marxist Theory of the State” [1935], in Keith Tribe, ed., Social
Democracy and the Rule of Law: Otto Kirchheimer and Franz Neumann (London: Allen
and Unwin, 1987), 76.
101
Fraenkel, Der Urdoppelstaat [1938], 441.
liv
102
Joseph A. Schumpeter, Capitalism, Socialism, and Democracy
(New York: Harper, 1942).
103
Joseph A. Schumpeter, “The Sociology of Imperialisms” [1918], in Joseph A.
Schumpeter, The Economics and Sociology of Capitalism, edited by Richard Swedberg
(Princeton: Princeton University Press, 1991), 141–219.
104
Schumpeter, “The Sociology of Imperialisms” [1918], 144.
105
Fraenkel, Der Urdoppelstaat [1938], 441.
lv
An Ethnography of Nazi Law lv
juxtaposition of a substantial rationality in a process of disappearance
and maximally developed functional rationality?106
This section channeled both Marx and Weber. The approach was
Marxist, the argumentation Weberian. But Fraenkel also made recourse
to Karl Mannheim’s recent work on the nature of rationality (which
I discuss in more detail below), notably in his argument about the eco-
nomic origins of dictatorship in the case of Nazi Germany.
Fraenkel toned down this functional interpretation of Nazi dictator-
ship in the transition from Urdoppelstaat to The Dual State. Fraenkel,
likely on the basis of conversations with mentors and colleagues, decided
that the American audience he hoped to reach with the publication of an
English edition might not appreciate an overtly Marxist interpretation
of German history. This brings us to a third major difference between
the Urdoppelstaat and The Dual State: the tone. The Urdoppelstaat was
considerably more passionate than The Dual State. Large chunks of it
had more in common with Fraenkel’s essayistic interventions on behalf
of the ISK in the 1920s and 1930s than with the detached analysis for
which The Dual State is deservedly known. The change in tone was a
consequence of the change in target audience. Whereas Fraenkel drafted
the Urdoppelstaat with German readers in mind, he conceived The
Dual State for a much broader readership. To this end, the language,
terminology, empirical references, and even the argument needed to be
rethought and tweaked. But the efforts were worth it. In the transition
from Urdoppelstaat to The Dual State, an act of resistance turned into a
contribution to scholarship.
Fourth, Fraenkel’s translators, presumably in extensive conversation
with the author himself, translated his concept of Maßnahmenstaat
(literally: state of measures) as “prerogative state.” In order to moti-
vate this conceptual innovation and to avoid misunderstanding,
Fraenkel included in the 1941 English edition a two-page discussion
of John Locke’s concept of the prerogative, with which his notion of
the prerogative state must not be confused.107 As Fraenkel wrote, “[A]
connection might be presumed to exist between the neo-German
106
New York Public Library, Manuscripts and Archives Division, American
Committee for the Guidance of Professional Personnel records, Box 2, Fraenkel, Ernst
“The Dual State.” Here and in subsequent references to the NYPL draft, I silently
incorporated all of Fraenkel’s handwritten corrections into the excerpted section.
107
Fraenkel, The Dual State, 66–67. On Locke’s concept of the prerogative, see,
for example, Pasquale Pasquino, “Locke on King’s Prerogative,” Political Theory, vol.
26 (1998), 198–208. More generally, see Clement Fatovic, “The Political Theology
lvi
of the Frankfurt School and the Institute of Social Research 1923–1950, second edition
(Berkeley: University of California Press, 1996), 39.
115
The figure stems from Ladwig-Winters, Ernst Fraenkel, 140.
lviii
mood. In early 1939, Fraenkel had shared one of the versions of the
book manuscript with Horkheimer. The latter replied on February 9:
But the work is not only important because it offers the first analysis
of jurisprudence and scholarship. It also processes a wealth of empiri-
cal details (“Fülle der Einzelheiten”) from a theoretical perspective that,
in my opinion, is of decisive relevance (“entscheidener Bedeutung”) not
only for the production of knowledge (“Erkenntnis”) but also for a cri-
tique of National Socialist viewpoints.116
Horkheimer did not support the publication of The Dual State.
Fraenkel was largely alone in thinking that an in-depth scholarly
analysis of the transition to Nazi dictatorship was required, indeed
essential, for planning for a transition from Nazi dictatorship.
Notwithstanding the general indifference that had greeted him and
his work in the United States, Fraenkel persevered. Several schol-
ars commented on the manuscript- in-
progress, including Max
Rheinstein, Franz Neumann, and, perhaps most significantly, Carl
J. Friedrich, Professor of Government at Harvard University and one
of the most influential political scientists in the mid-twentieth cen-
tury. Friedrich’s involvement with, and endorsement of, Fraenkel’s
project will not have hurt in OUP’s deliberations about whether to
publish The Dual State.
The New York Public Library holds a typescript of the manuscript
for what eventually became the OUP book.117 The typescript consists
of a preface, a table of contents, and some chapters, with a large num-
ber of handwritten corrections.118 The preface is dated November 2,
1939, with Chicago listed as the city where it was written. In terms of
organization and substance, the typescript differs in minor rather than
major ways from the published version. Inasmuch as the hundreds of
additions, deletions, insertions, tweaks, and corrections altered the
manuscript, mostly improving it, they did not fundamentally change
the architecture and argument, save perhaps in Part III, Chapter 2
which in the manuscript of November 1939 was still entitled “The
116
Max Horkheimer, Letter to Ernst Fraenkel, February 9, 1939, as quoted in
Ladwig-Winters, Ernst Fraenkel, 148.
117
New York Public Library, Manuscripts and Archives Division, American
Committee for the Guidance of Professional Personnel records, Box 2, Fraenkel, Ernst
“The Dual State.”
118
The corrections were done in different handwriting styles, one of which was
likely Fraenkel’s.
lix
119
New York Public Library, Manuscripts and Archives Division, American
Committee for the Guidance of Professional Personnel records, Box 2, Fraenkel, Ernst
“The Dual State”; Fraenkel, Der Urdoppelstaat [1938], 270, 440.
120
Fraenkel, The Dual State, xi, 171; Fraenkel, Der Doppelstaat, 36, 223.
121
Ladwig-Winters, Ernst Fraenkel, 144.
122
Cf. New York Public Library, Manuscripts and Archives Division, American
Committee for the Guidance of Professional Personnel records, Box 2, Fraenkel, Ernst
“The Dual State”; Fraenkel, The Dual State, 172. Emphases added.
lx
lx An Ethnography of Nazi Law
Fraenkel’s principal argument had three parts.125 The first part com-
prised several counterintuitive propositions about the nature of the
123
New York Public Library, Manuscripts and Archives Division, American
Committee for the Guidance of Professional Personnel records, Box 2, Fraenkel, Ernst
“The Dual State”; Fraenkel, The Dual State, vi. In an aside, it is perhaps worth noting
that Fraenkel’s time at the University of Chicago overlapped with that of Friedrich
Hayek, who was there completing the book that would make him a household name,
The Road to Serfdom (London: Routledge, 1944).
124
New York Public Library, Manuscripts and Archives Division, American
Committee for the Guidance of Professional Personnel records, Box 2, Fraenkel, Ernst
“The Dual State.”
125
I will not dwell in this chapter on Fraenkel’s lengthy—and idiosyncratic—
ruminations in The Dual State about the theory and history of the natural law trad-
ition. See Fraenkel, The Dual State, 107–149. For a recent, comparative analysis, see
Douglas G. Morris, “Write and Resist: Ernst Fraenkel and Franz Neumann on the Role
of Natural Law in Fighting Nazi Tyranny,” New German Critique, vol. 126 (2015), 197–
230. See also William E. Scheuerman, “Social Democracy and the Rule of Law: The
lxi
The concept of the dual state is, at first glance, simple and straight-
forward. In his preface to the 1974 German edition, Fraenkel
explained how it came about: “Based on the insights into the func-
tioning of the Hitler regime that I gleaned from my legal practice,
I believed to have found a key to understanding the National Socialist
system of rule (“der nationalsozialistischen Herrschaftsordnung”) in
the duality or concurrent existence (“Nebeneinander”) of a “norma-
tive state” (“Normenstaat”) that generally respects its own laws, and
a “prerogative state” (“Maßnahmenstaat”) that violates the very same
laws.”130 Fraenkel maintained that the early Nazi state was not a uni-
tary state—as most of his contemporaries assumed—but, rather, two
“simultaneous states.”131 Although a “line of division” kept these insti-
tutional loci apart, he argued that they were simultaneously tied to
one another and “in constant friction.”132 As we have seen, he invented
the memorable neologism of the “dual state” to name this mutually
constitutive relationship between the prerogative and normative
halves of the state. It has been remarked, rather unkindly, that “the
most accomplished” (“das Gelungenste”) aspect of The Dual State was
its title.133 Spun more positively, we can think of the term as analytical
shorthand (“eine Art Chiffre”) for the institutional logic of a particular
kind of rule, Nazi and otherwise.134 Fraenkel made sense of this logic,
which he thought of as transitory not permanent in nature, by adopt-
ing a perspective from methodological structuralism.
The hallmark of the prerogative state is arbitrary rule. Fraenkel
argued that the phenomenon of the prerogative state derived from the
institution of martial law and suggested that we think of it as “a con-
tinuous siege.”135 As a “governmental system,” he wrote, the preroga-
tive state exercised “unlimited arbitrariness and violence unchecked
by any legal guarantees.”136 Its acts, or “measures” (“Maßnahmen”)
as Fraenkel called them, are self- legitimating, and thus self-
enforcing: “The political sphere in the Third Reich is governed nei-
ther by objective nor by subjective law, neither by legal guarantees nor
jurisdictional qualifications.”137 In other words, the prerogative state,
as an idea, amounts to institutionalized lawlessness. The absence of
130
Fraenkel, “Preface to the German edition (1974),” xv.
131
Fraenkel, The Dual State, xiii. 132
Ibid., xiii.
133
Helmut Ridder, “Der Doppelstaat: Die Ehe von Kapitalismus und NS-Diktatur,”
Die Zeit, June 12, 1970.
134
Dreier, “Nachwort,” 300; Meierhenrich, The Legacies of Law, esp. 3–5, 76–9.
135
Fraenkel, The Dual State, 24. 136
Ibid., xiii. 137
Ibid., 3.
lxiii
138
Ibid., 9, 23, 33–7. 139
Ibid., 14–33, 46–9. 140
Ibid., 44.
141
Dreier, “Nachwort,” 282–95.
142
Fraenkel, “Das Dritte Reich als Doppelstaat” [1937], 513–14.
lxiv
143
Dreier, “Nachwort,” 284– 5; Carl Schmitt, The Concept of the Political,
expanded edition, translated with an introduction and notes by George Schwab
(Chicago: University of Chicago Press, [1932] 2007). For key treatments of Schmitt’s
infamous concept, see Duncan Kelly, The State of the Political: Conceptions of Politics
and the State in the Thought of Max Weber, Carl Schmitt and Franz Neumann
(Oxford: Oxford University Press, 2003), Chapter 4; and Reinhard Mehring, ed., Carl
Schmitt, Der Begriff des Politischen: Ein kooperativer Kommentar (Berlin: Akademie
Verlag, 2003). Most recently, see also Jens Meierhenrich and Oliver Simons, “‘A
Fanatic of Order in an Epoch of Confusing Turmoil’: The Political, Legal, and Cultural
Thought of Carl Schmitt,” in Meierhenrich and Simons, eds., The Oxford Handbook of
Carl Schmitt, esp. 21–5.
144
Kammergericht, May 31, 1935. As quoted in Fraenkel, The Dual State, 16. The
case was reported in Deutsche Richter-Zeitung, vol. 27 (1935), 624.
145
Kammergericht, May 31, 1935. 146
Ibid.
147
Fraenkel, The Dual State, 3.
lxv
148
Dreier, “Nachwort,” 286–90. 149
Ibid., 290.
150
For a brief summary, see ibid., 81–3.
151
Fraenkel, The Dual State, 27. 152
Ibid., 28.
lxvi
153
On the nature and function of the Sondergerichte, see the discussion below. For a
comprehensive analysis of cultures of legality, their study, and path dependent effects,
see Meierhenrich, The Legacies of Law, 219–64.
154
Pars pro toto of a vast body of increasingly interdisciplinary scholarship, see
Fernanda Pirie, Anthropology of Law (Oxford: Oxford University Press, 2013).
155
Dreier, “Nachwort,” 291.
156
Otto Kirchheimer, “Politics and Justice,” Social Research, vol. 22 (1955), 377.
lxvii
in the common law. The case revolved around a defendant who had
been convicted of (and already served his sentence for) an act of high
treason, namely the distribution of illegal propaganda. When it was
subsequently discovered that the defendant’s conduct had been graver
than previously thought, the judges of Munich’s Oberlandesgericht
convicted him a second time, and for the same underlying conduct,
thus violating the principle of ne bis in idem.157 Fraenkel used the
example to illustrate the expanding reach of the prerogative state,
its persistent advances into the province of the normative state. The
example slots neatly into the third of the above subtypes—the pre-
rogative state as a constitutive force—because the Bavarian court was
neither coerced nor otherwise compelled to rule in the case the way
it did. Rather, the judges, as nominal representatives of the norma-
tive state, had discretion in reaching their judgment. They used this
discretion to continue the general dismantling of the normative state,
even introducing from the bench a novel principle of law: “In seri-
ous cases of high treason,” they held, “an adequate sentence has to be
imposed in all circumstances regardless of all legal principles! The
protection of state and people is more important than the adherence
to formalistic rules of procedure which are senseless if applied with-
out exception.”158 By internalizing the ethos of the prerogative state,
the court, according to Fraenkel, “degraded its status to that of an
instrument of the Prerogative State.”159 So much for the workings of
the prerogative state, what Fraenkel once called the dual state’s “irra-
tional shell.”160
I now turn to the “rational core” that he thought was contained
within that irrational shell—the normative state.161 Fraenkel grounded
the concept of the dual state solidly in the theoretical scholarship of
his time, drawing extensively on writings in philosophy, law, econom-
ics, and religion.162 He also traced in some detail the historical roots
of the dual state in Prussia, from the establishment of absolute mon-
archy to the prototype of the German Rechtsstaat. In thinking about
the normative state, Fraenkel was heavily influenced by the history of
the authoritarian regime of Frederick the Great (1740–1786), whose
enlightened despotism laid the intellectual foundations for the more
Oberlandesgericht Munich, August 12, 1937, as quoted in The Dual State, 52. The
158
benign half the institutional structure that Fraenkel saw at work in the
“Third Reich.”163 Fraenkel was particularly taken with the Prussian
Allgemeine Landrecht, which, under the influence of Enlightenment
precepts, fundamentally recast the nature and purpose of police pow-
ers. Revolutionary for its time, this pre-German code of law dras-
tically curtailed the powers of the police. Drawing on doctrines of
natural law, the Prussian monarch placed far-reaching and unprec-
edented limits on his own erstwhile prerogative state.
But it is essential not to misconstrue Fraenkel’s idea of the nor-
mative state. To be sure, the normative state is not akin to a rule-of-
law state, what Germans call a Rechtsstaat.164 Fraenkel distinguished
very carefully between the concept of the rule-of-law state and that
of the dual state. He pointed to the institution of extraordinary
courts to drive home the conceptual difference: “The term Special
Court [Sondergericht in German] sums up the difference between the
Rule of Law State (Rechtsstaat) and the Dual State: the Rule of Law
[State] refers political crimes to a special court despite the fact that
they are questions of law; the Dual State refers political crimes to a
special court, despite the fact that they are political questions.”165 In
other words, the normative state is only ever as strong as the pre-
rogative state permits it to be. In the case of the Sondergerichte, the
prerogative state turned law from a regulatory device that reduced
uncertainty into a destructive device that annihilated difference. As
Nikolaus Wachsmann has shown, “the special courts were hailed as
weapons to ‘render harmless’, ‘eradicate’ and ‘exterminate’ the politi-
cal enemy.”166 As instruments of the prerogative state, the example
163
Ibid., 159.
164
For a discussion of the Rechtsstaat concept, see, for example, Ernst-Wolfgang
Böckenförde, “Entstehung und Wandel des Rechtsstaatsbegriffs” [1969], in
idem., Recht, Staat, Freiheit: Studien zur Rechtsphilosophie, Staatstheorie und
Verfassungsgerichtsbarkeit (Frankfurt: Suhrkamp, 1991), 143–69. On the meaning(s)
of the rule of law, see, for example, Allan C. Hutchinson and Patrick Monahan, eds.,
The Rule of Law: Ideal or Ideology? (Toronto: Carswell, 1987).
165
Fraenkel, The Dual State, 50; 71. Pursuant to the “Decree of the Reich President
for the Defense against Malicious Attacks against the Government of National
Uprising” (Verordnung des Reichspräsidenten zur Abwehr heimtückischer Angriffe
gegen die Regierung der nationalen Erhebung) of March 21, 1933, a Nazi Sondergericht
was established in each of Germany’s judicial districts. See Nikolaus Wachsmann,
Hitler’s Prisons: Legal Terror in Nazi Germany (New Haven: Yale University Press,
2004), 114. For an overview, see also Hans Wüllenweber, Sondergerichte im Dritten
Reich: Vergessene Verbrechen der Justiz (Munich: Luchterhand, 1993).
166
Wachsmann, Hitler’s Prisons, 114.
lxix
of his dual-state concept, what did he have to say about their inter-
relationship? What, exactly, is the logic of the institutional structure
that they co-constitute? The combination of the two notions—the
prerogative state and the normative state—in one concept sets up a
dynamic tension between these elements. The dual state has built into
it what Reinhard Bendix termed “conflicting imperatives.”170 The nor-
mative state and the prerogative state, though complementary, stand
in tension with one another. The foundational relationship between
the halves of the dual state—from which all dynamic interactions
between them derive—can be stated thus: “the presumption of juris-
diction rests with the Normative State. The jurisdiction over jurisdic-
tion rests with the Prerogative State.”171
It was Emil Lederer who first inspired Fraenkel to embrace the idea
of institutional hybridity. In 1915, Lederer had described the Imperial
state of Wilhelmine Germany as a two-pronged state. Fraenkel cred-
ited Lederer as being the first person to “depict the co-existence of
the Normative State and the Prerogative State.”172 But the metaphor
of a Janus-faced or dual-natured state predates even Lederer’s con-
ceptualization. In fact, it was Georg Jellinek who first theorized an
institutional binary at the heart of the concept of the state, in his
Allgemeine Staatslehre at the turn of the twentieth century.173 Jellinek,
a highly influential legal scholar in his time, developed a two-sided
theory of the state that distinguished between, on the one hand, the
state as a “legal institution” and, on the other, the state as a “social
phenomenon.” Jellinek argued that a constitutional theory of the state
(Staatsrechtslehre) was required to study the former instantiation of
the state, and a social theory of the state (soziale Staatslehre) to study
structure of the state itself. Fraenkel insisted that “when we speak of the Dual State we
do not refer to the co-existence of the state bureaucracy and the party bureaucracy.
We do not place great importance on this feature of German constitutional law….
State and party are increasingly becoming identical, the dual organizational form is
maintained merely for historical and political reasons.” Fraenkel, The Dual State, xv.
Or, as he put it later in the book, the NSDAP was neither identical with nor separate
from, but rather “an instrument of the Prerogative State.” Ibid., 33. Emphasis added.
170
See, e.g., Reinhard Bendix, Nation-Building and Citizenship, enlarged edition
(Berkeley: University of California Press, 1977. Note that Bendix uses varying terms
to refer to what he calls conflicting imperatives. More recently, see Andrew C. Gould,
“Conflicting Imperatives and Concept Formation,” Review of Politics, vol. 61 (1999),
439–63.
171
Fraenkel, The Dual State, 57. 172
Ibid., 168.
173
Georg Jellinek, Allgemeine Staatslehre (Berlin: Häring, 1900).
lxxi
174
For a brief discussion of Jellinek’s effect on the social sciences, and his contribu-
tion to comparative-historical sociology, see Reinhard Bendix and Guenther Roth,
Scholarship and Partisanship: Essays on Max Weber (Berkeley, University of California
Press, 1970), 260–5.
175
Fraenkel, The Dual State, 69. 176
Fraenkel, The Dual State, xiv.
177
For an account of the entire trajectory of Jewish suffering in particular—from
persecution to destruction—at the hands of an ever-expanding prerogative state
in Nazi Germany, see, most recently, Christian Gerlach, The Extermination of the
European Jews (Cambridge: Cambridge University Press, 2016).
178
Fraenkel, The Dual State, 73. 179
Ibid., 90.
lxxii
180
Ibid., 173. 181
Ibid., 173. Emphasis added.
182
Ibid., 173, 176–82.
183
On analytical eclecticism as a research stance, see Rudra Sil and Peter J.
Katzenstein, “Analytic Eclecticism in the Study of World Politics: Reconfiguring
Problems and Mechanisms across Research Traditions,” Perspectives on Politics, vol.
8 (2010), 411–31.
lxxiii
184
Scheuerman, “Social Democracy and the Rule of Law,” 74, Fn. 1. For an insight-
ful discussion of Fraenkel’s postwar influence on the theory, practice, and study of
democracy in the Federal Republic of Germany, see Alexander v. Brünneck, “Vorwort
zu diesem Band,” in Ernst Fraenkel, Gesammelte Schriften, vol. 5: Demokratie und
Pluralismus, edited by Alexander v. Brünneck (Baden-Baden: Nomos, 2007), 9–36,
esp. 21–5.
185
Lest my allusion to the formulation’s double meaning is lost, my point is this: the
theory of dictatorship that Fraenkel developed in The Dual State was the subject of his
life, but it was also the subject of his life.
186
The empirical coverage in The Dual State ended with the late 1930s, but
Fraenkel’s postwar commentary suggests he harbored no illusions about having pro-
duced an institutional analysis that was valid for the war years as well.
187
Fraenkel, The Dual State, 59. 188
Ibid., 60.
lxxiv
189
Ibid., 70.
190
Ibid., 70; A. V. Dicey, Introduction to the Study of the Law of the Constitution,
eighth edition (London: Macmillan, 1926), 198.
191
Fraenkel, The Dual State, 71. 192
Ibid., 72. 193
Ibid., 73.
lxxv
Ibid., 73–82.
194 195
Ibid., xiv. 196
See the discussion above, xlvii–lx.
197
Fraenkel, The Dual State, 171, 172.
198
On the economics of the interwar order, see Tooze, The Wages of Destruction;
and Nicholas Crafts and Peter Fearon, eds., The Great Depression of the 1930s: Lessons
for Today (Oxford: Oxford University Press, 2013).
lxxvi
199
Fraenkel, The Dual State, 172. 200
Ibid., 172.
201
Richard Overy, The Nazi Economic Recovery 1932– 1938, second edition
(Cambridge: Cambridge University Press, 1996), 1.
202
Fraenkel, The Dual State, 172. 203
Ibid., 185.
lxxvii
Ibid., 186.
204 205
Ibid., 186–7. 206
Ibid., 185.
Ibid., 185.
207 208
Ibid., 185.
209
Douglass C. North, Institutions, Institutional Change and Economic Performance
(Cambridge: Cambridge University Press, 1990). Whereas Fraenkel’s book is a for-
gotten classic, North’s book by the summer of 2016 had a racked up total of 48,038
citations on Google Scholar. See <https://scholar.google.co.uk/citations?view_
op=view_ c itation&hl=en&user=- L cMZqMAAAAJ&citation_ f or_ v iew=-
LcMZqMAAAAJ:u5HHmVD_uO8C>, last accessed on July 24, 2016.
lxxviii
210
North, Institutions, Institutional Change and Economic Performance, 3.
211
For a solid overview, see Kathleen Thelen, “Historical Institutionalism in
Comparative Politics,” Annual Review of Political Science, vol. 2 (1999), 369–404.
For a more recent set of treatments of historical institutionalism as an approach to,
inter alia, the study of comparative politics, international relations, American poli-
tics, and European politics, see Orfeo Fioretos, Tulia G. Falleti, and Adam Sheingate,
eds., The Oxford Handbook of Historical Institutionalism (Oxford: Oxford University
Press, 2016).
212
See my discussion above and Fraenkel, The Dual State, 57.
213
Scheuerman, “Social Democracy and the Rule of Law,” 90.
lxxix
Ibid., 205–6.
217
lxxx
218
Scheuerman, “Social Democracy and the Rule of Law,” 88. For a comparison of
Neumann’s Behemoth and Fraenkel’s The Dual State, see Meierhenrich, The Remnants
of the Rechtsstaat.
219
Fraenkel, The Dual State, 183.
220
For a seminal, but controversial contribution to this debate, see Daron
Acemoglu and James A. Morrison, Economic Origins of Dictatorship and Democracy
(Cambridge: Cambridge University Press, 2006), a response by two economists
to Barrington Moore’s social science classic, Social Origins of Dictatorship and
lxxxi
Democracy: Lord and Peasant in the Making of the Modern World (Boston: Beacon
Press, 1966).
221
Fraenkel, The Dual State, 208.
222
For this argument, see my The Remnants of the Rechtsstaat, which also comprises
an analysis of the uneven reception of The Dual State since its publication in 1941.
1
Part I
Do you believe that a state in which the decisions of the courts can
have no validity, but can be reversed and nullified by particular
persons, would subsist rather than perish?
SOCRATES
2
3
The Prerogative State
4 The Dual State
gency Decree against acts of violence endangering the state, the law of
March 24, 1933 gave National-Socialism unlimited legislative power.
The official legend which the Third Reich seeks to propagate main-
tains that the National-Socialist state is founded on valid laws, issued
by the legally appointed Hitler Cabinet and passed by the legally
elected Reichstag. It would be futile to deny the significance of this
legislation in the transformation of the German legal order. A study of
this legislation and its influence on the activity of the courts presents
a clear picture of the existing German legal order in so far as it can be
said to exist. But it should be remembered that on the statute books
after February 28, 1933, can be found almost no legislation referring
to the part of political and social life, which we have labelled ‘political
sphere,’ now outside the sphere of ordinary law. Legislation regarding
politics would be futile inasmuch as legal declarations in this field are
not considered binding.
The National-Socialist legend of the ‘legal revolution’ is contra-
dicted by the reality of the illegal coup d’état.3 The events leading up
to the Decree of February 28, 1933 are known generally and need not
be repeated here. What is significant, however, is that the coup d’état
consists neither in the Reichstag fire of February 27, 1933, nor in the
Emergency Decree of February 28, 1933, but rather in the execution
of this decree itself. Three acts of President Hindenburg between
January 30 and March 24, 1933, helped National-Socialism into the
saddle: the appointment of Hitler to the post of Reichs-Chancellor,
the proclamation of civil siege by issuing the Reichstag Fire Decree
and the signing of the Enabling Law of March 24, 1933. Two of these
acts could scarcely have been avoided, but the third was entirely vol-
untary. The appointment of Hitler, the leader of the strongest party,
to the post of Reichs-Chancellor was in conformity with the Weimar
Constitution; historically, the proclamation of a state of ‘civil’ instead
of military siege subsequent to the Reichstag fire was the decisive
act of Hindenburg’s career. It was the necessary consequence of the
instigated coup d’état (based on the Reichstag Fire Decree), when
Hindenburg signed the law of March 24, 1933, and thus sounded his
own death knell.
5
The Prerogative State 5
6 The Dual State
A somewhat startling argument was addressed to us by Mr. Serjeant
Hanna, that it was not competent for this Court to decide whether a
state of war existed or not and that we were bound to accept the state-
ment of Sir Nevil Macready in this respect as binding upon the Court.
This contention is absolutely opposed to our judgment in Allen’s case
(1921) … and is destitute of authority, and we desire to state, in the
clearest possible language that this Court has the power and the duty
to decide whether a state of war exists which justifies the application of
martial law.6
The traditions of the monarchic period, when the declaration of
martial law was the privilege of the government and was independ-
ent of the jurisdiction of the courts, carried over into the Weimar
Republic. The German courts, possessing no guiding traditions in
questions of constitutional law, never succeeded in establishing a
claim to jurisdiction in these particularly crucial cases.
However, the National-Socialists would probably have been suc-
cessful even had such constitutional-judicial safeguards existed. The
absence of a legal tradition analogous to the Anglo-American tradi-
tion enabled them, however, to render lip service to the laws, a proce-
dure found useful during the transitional period, when the army and
the officialdom were not entirely dependable.
The Prerogative State 7
8 The Dual State
The Prerogative State 9
B. The State Police
Outstanding among the executive branches of the absolute dictator-
ship is the Secret State Police (Gestapo). This body has always been
and still is organized in accordance with state law. In Prussia, the
functions of the Gestapo are regulated by three statutes. The Office of
the Secret Police was established in April 1933. The Secret State Police
was transformed into a special police force in November 1933. The
general powers of the Gestapo were finally defined by the Prussian
statute of February 10, 1936, which revoked the earlier statutes.14
Section 7 of the law of February 10, 1936, besides correcting a
printing error (which will be discussed below), and announcing some
organizational regulations, contains a provision of substantive law
concerning the examination by administrative courts of decrees in
matters relating to the Gestapo.
Following the Prussian example, the other German states enacted
statutes building up Secret State Police systems. In some German
states, where the jurisdiction of the administrative courts is regulated
by a general clause, every decree issued by an administrative authority
was made subject to review by administrative courts. In other states,
the courts review the act if the situation is enumerated in the stat-
ute regulating the jurisdiction of the administrative courts. Prussia,
in the pre-Hitler-period, adhered to the latter method, but required
review of police orders in so far as they were explicitly enumerated
in the relevant statute. The extent to which changes have occurred in
the principles governing the acts of the Gestapo in Prussia and other
states will be examined below.15
10 The Dual State
The Prerogative State 11
12 The Dual State
The Prerogative State 13
14 The Dual State
The Prerogative State 15
16 The Dual State
The Prerogative State 17
28, 1933, it might be justified with reference to the necessities of the
self-defense of the state…. In the first half of the year of 1933 the situa-
tion of the National-Socialist state could not be regarded as secure. As
long as the Communist threat lasted, the state of insecurity continued
and necessitated the extension of police powers beyond their regular
limits.42
It is not accidental that the court uses the past tense in its justifica-
tion of the law of the self-defense of the state. It seems to have desired
to indicate that the emergency had ended by the time this decision
was rendered, thus reopening the period of normal conditions. In like
manner the decision of the Reichsgericht had opened the way for the
re-establishment of the rule of the law (see p. 14).
This trend, however, did not persist. It had originated with the
assumption of the preamble of the February 28, 1933, Decree, that
the sole motive of the law was the overthrowing of Communism.
Hamel declares this interpretation of the Decree of February 28, 1933,
to be erroneous. ‘It would be a mistake,’ he writes, ‘to assume that
the authorities are freed of liberal fetters only in their fight against
Communism. Liberal restraints are not just suspended by the laws
for the fighting of Communism; they are abolished without reserva-
tion.’43 This view has been followed by a great number of the higher
courts. The Special Court of Hamburg (Sondergericht), in a decision
regarding Jehovah’s Witnesses, holds that the decree was issued after
the Reichstag fire in a major emergency and with great haste and that
it was ‘directed against dangers threatening the state not only from
Communist but from any other sources as well.’44 The theory, how-
ever, that the special mention of the Communists is an editorial error
cannot be reasonably upheld.
To justify its application to churches, sects, anti-vaccinationists and
Boy Scouts, the Prussian Supreme Court (Kammergericht) created the
theory of the indirect Communist danger. A decision of December 8,
1935, of the criminal division of the Prussian Supreme Court reversed
a decision of the Municipal Court of Hagen (Westfalen) and acquitted
the defendants who were members of a Catholic youth organization.
The defendants had participated in hiking trips and athletic contests.
The complaint stated
18
18 The Dual State
The Prerogative State 19
It is sufficient for the application of the decree that an indirect dan-
ger to the state is created by an expression of disaffection with the new
order. Such disaffection provides fertile soil for the reemergence of
Communist activities.47
The participation of National-Socialism in the church struggle and
the abuse of the anti-Communist decree for the persecution of the
Confessional Church was justified by the contention that ‘such criti-
cism naturally provokes dissatisfaction … especially since the inimi-
cal attitude of Communism towards the church might acquire new
hope and strength from this situation.’48
It is not surprising that the theory of the indirect war on Communism
has been used as the basis for a prohibition of the anti-vaccinationists,
as was expressly recognized by a decision of the Reichsgericht of
August 6, 1936.49 Here again there is a historical parallel mentioned
by Carl Schmitt in his discussion of Wallenstein’s legal position: ‘The
right of expropriation is allowed only against rebels and enemies. But
in every revolution it has been the rule to brand political opponents as
enemies of the fatherland and so to justify completely depriving them
of legal protection and property.’50 The courts have since adopted this
theory with little hesitation.
The Administrative Court of Württemberg, in a decision of
September 9, 1936, dealing with the Innere Mission (Missionary
Work of the Protestant Church), dropped all pretence of a connec-
tion between police actions (based on the Reichstag Fire Decree)
and the anti- Communist campaign. It bluntly declared that ‘the
decree was not intended exclusively as a protection from the threat of
Communism but from any danger to public safety and order regard-
less of its source.’51 This decision emphasized a legal condition which
had already been foreshadowed by the District Court of Berlin when,
on November 1, 1933, this court declared in a decision, unique at that
time, that ‘all attacks upon public safety and order are to be regarded
as Communistic in a broader sense.’52
No discrimination was made among the various opponents of
National-Socialism. They were all labelled as Communists. Martial
law was applied equally against all opponents of the present
20
20 The Dual State
The Prerogative State 21
22 The Dual State
The Prerogative State 23
24 The Dual State
The Prerogative State 25
26 The Dual State
The Prerogative State 27
28 The Dual State
The Prerogative State 29
30 The Dual State
tion. The final word rests with the political authorities. Konflikt is the
technical instrument which draws the line between government by
law (the Normative State) and government by individual decree (the
Prerogative State).
§ 147 of the Civil Servants’ Law gave permanent form to a pro-
vision which had been in force as a special decree during the tran-
sition between democracy and dictatorship. During this period the
Adjustment of the Civil Claims Law (issued December 13, 1934)95
entitled the Minister of the Interior to interrupt judicial proceedings
and refer the case to the administrative authority provided claims
arising from the National-Socialist revolution were involved. The
administrative authority was not bound by the legal code, but made
its decisions according to ‘equitable considerations.’ This was held
necessary in order to prevent the Normative State from cancelling the
gains of the coup d’état. The way in which this statute works becomes
clear in a decision of the Reichsgericht delivered on September 7, 1937,
which reveals at the same time the true methods of the ‘legal revo-
lution.’ At the outset of the National Socialist revolution, the mayor
of Eutin was removed from office. Originally the authorities wished
to institute proceedings against him for malfeasance in office under
the legal provisions of the Normative State. But this plan was soon
dropped, and they pursued the course prescribed by the Prerogative
State. The mayor was placed under protective arrest on July 24, 1933.
Negotiations between his counsel and the government representative
resulted in a written statement (August 4, 1933) in which the mayor
waived his salary—as well as all other claims—and obligated himself
to pay 3,000 marks to the government for the damage he was alleged
to have inflicted on the reputation of Eutin, although German law
does not recognize restitution for moral damages in cases such as the
foregoing. In this case, the state ordered protective custody and threat-
ened internment in a concentration camp in order to prevail upon
one of its citizens to waive his lawful claims against it. Furthermore it
induced him to make payments for which there was not the slightest
legal justification. (The legal term for such conduct of course is rob-
bery and extortion.) The highest official in the county (Regierungsprä-
31
The Prerogative State 31
sident) and the newly appointed mayor of Eutin, once their booty was
secured, became generous. The Reichsgericht records that ‘the govern-
ment and the mayor of the city of Eutin declare that the state and
the city are now willing to regard the matter as closed. They have no
intention of taking any actions which might cause difficulties for the
plaintiff. The plaintiff is hereby dismissed from protective custody.’96
This procedure, however, was apparently not entirely satisfactory
to the National-Socialist officials, and to preclude any expression of
doubt concerning their conduct they offered the following explana-
tion: ‘The plaintiff and his counsel declare that all their statements
and agreements were made of their own free will and that no duress
of any kind was exercised.’97
This decision has an epilogue. The plaintiff, after the first storm of
the National-Socialist revolution had subsided, tried to withdraw his
waiver on the ground of duress. Since the Minister of the Interior, on
the basis of the Adjustment Law of December 13, 1934, declared that
the case was within his jurisdiction, his appeal was not heard. The
courts refused to hear the complaint and it was dismissed forthwith.
The slightest legal control over its authoritarian decisions is viewed
by the National-Socialist Prerogative State as a greater evil than the
perpetuation of injustice.
32 The Dual State
The Prerogative State 33
34 The Dual State
The Prerogative State 35
36 The Dual State
The Prerogative State 37
38 The Dual State
The Prerogative State 39
40 The Dual State
other undesirables, the Gestapo, in executing its commission to protect
the people and the state from the danger resident in such elements, will
confiscate those licenses. If this entails a loss of prestige to someone, the
Gestapo will not suffer the loss, since it always has the last word in such
matters.121
This statement is one of the most outspoken repudiations of the
Rule of Law which we have found in National-Socialist literature. The
difference between a Rechtsstaat (Rule of Law state) and the Third
Reich may be summed up as follows: in the Rechtsstaat the courts
control the executive branch of the government in the interest of
legality. In the Third Reich the police power controls the courts in the
interest of political expediency.122
The claim that the decisions of the regular courts can be and are
rendered ineffective by the political authorities is difficult to prove by
official evidence since those measures, lacking a foundation in law,
cannot be justified by legal arguments and naturally are not published.
All the more interesting for this reason is an article by Dr. Thieme, of
the University of Breslau, in which he takes for granted the use of
this procedure in cases before the Courts of Social Honor (Soziale
Ehrengerichte) in the manner set forth in the revised Penal Code.
Thieme argues that ‘anyone acquitted in a case which is punishable in
the light of wholesome popular sentiment should be handled through
publicity or protective custody.’123 This circumlocution may well be
interpreted as an indication of the control the political authorities
exercise over the courts.
If the political authorities go beyond the jurisdiction of the law
their measures need not be justified by the attribution of illegality to
the actions of those against whom they are invoked. In an article in
the Reichsverwaltungsblatt, which discussed whether a citizen may be
forced by the police to hoist a swastika banner on festive occasions,
the author concluded that though it is not a legal duty to hoist a flag, it
is evidence of the citizen’s devotion to the Leader. Moreover failure to
display the flag might be taken to indicate that the citizen in question
lacked a National-Socialist background. The author suggests that the
deficiency may be remedied in a concentration camp.124
41
The Prerogative State 41
42 The Dual State
Not only does the Prerogative State replace the court but it also
actively intervenes in pending proceedings.
A survey of legal developments in 1936 by an official of the Ministry
of Justice in the course of a discussion of political crime and the con-
flict between the State and the Catholic Church has supplied us with
a characteristic document on the relations between the courts and
the political authorities of the Third Reich. In it we find the following
statement:
Among the more important political crimes are the ecclesiastical delin-
quencies, which can be classified into three groups: exchange manipu-
lations, moral transgressions and malicious attacks on the state. Since
August 1936, by order of the Leader, for political reasons none of these
matters may be brought before the courts.129
Thus the defendants may be kept in jail for political reasons indefi-
nitely awaiting trial. The courts, whose legal duty is to speed up trials
in cases where the defendants are under arrest, must postpone the
trial by order of the Leader and thereby deviate from the law.
This self-revelation of the policy underlying the National-Socialist
administration of justice is of particular significance for its disclo-
sure of the wide range of actions which are designated as ‘political.’
Offenses against exchange regulations may be classified as ‘political’
in contemporary Germany, and malicious attacks against the govern-
ment are, of course, political crimes. Why the homosexual practices of
two monks should be considered a political offense, however, is more
difficult to explain. It is clear that there is no intrinsic connection
between such actions and those falling under the category, the ‘politi-
cal,’ which is defined by the Prussian Supreme Court (Kammergericht)
as ‘that which involves the domestic and foreign security of the state.’130
Neither the offense as such nor the person of a completely inconse-
quential monk has even the slightest connection with politics. In the
Third Reich, sodomy becomes a political offense whenever the politi-
cal treatment of such offenses is regarded as desirable to the political
authorities. The conclusion one must come to is that politics is that
which political authorities choose to define as political.
43
The Prerogative State 43
44 The Dual State
The Prerogative State 45
46 The Dual State
The Prerogative State 47
tional-Socialist Party for the Redrafting of the Penal Code: ‘In the
criminal law of the National-Socialist state there is no room for for-
mal justice; we are concerned only with material or substantive jus-
tice.’147 The first part of this quotation disregards formal justice in the
German legal system. Whether formal justice has been replaced by
a new type of material justice can be determined only by the exami-
nation of what National-Socialism calls ‘material justice.’ The second
part of this treatise will amply demonstrate what kind of justice this
new ‘material justice’ is. It will be shown that the Rule of Law has
not given way to higher ideals of justice, but rather that it has been
destroyed in accordance with National-Socialist doctrine for the pur-
pose of strengthening the ‘race.’
The practical significance of this point may be demonstrated by a
decision of the Supreme Disciplinary Court (Reichsdienststrafhof).
The question before the court was whether a public servant who
refused to contribute to the Winter Relief Fund (Winterhilfe) was
guilty of a misdemeanor in office. The accused, who for many decades
had been a member of the nationalist movement, pointed out that he
contributed a considerable share of his income to private charities and
that his refusal to contribute to the Winter Relief Fund was without
legal significance, since it always had been officially emphasized as
entirely ‘voluntary.’ In a legal system adhering to principles of formal
rationality it would be impossible to attach legal significance to the
non-fulfillment of ‘voluntary’ obligations. The National-Socialist state
ignores this ‘merely’ formal restriction. The Supreme Disciplinary
Court dealt with the significance of the voluntary character of the
contribution in the following argument:
Even today the defendant’s conception of liberty is of an extreme char-
acter…. For him liberty is the right to neglect all of his duties except
where they are explicitly required by law. He has abstained from par-
ticipation in community enterprises merely because he wanted to show
that as a ‘free’ man he could not be coerced.148
Because he believed that he was free, the state itself having empha-
sized the fact, he is now blamed for ‘a despicable abuse of the
48
48 The Dual State
liberty which the Leader had granted in full confidence that the
German people would not abuse it.’149 It was for this that he was pun-
ished. The wrongdoing of the public servant did not consist in his lack
of charitable intentions. National-Socialism is not interested in char-
ity as such. It is primarily interested in enlisting and co-ordinating
everyone in the official National-Socialist charity organization. The
‘despicable abuse of liberty’ consisted in having contributed to private
charity. The ‘value’ which National-Socialism attributes to activities
in the welfare field is a function not of charitable interests but of the
desire to add to the party’s prestige.
Here again a parallel can be found with the period of personal
government in England between 1629 and 1640 dominated by the
regime of Archbishop Laud. Professor Tawney tells us that the eccle-
siastical courts, when confronted by cases similar to that dealt with
by the Supreme Disciplinary Court, imposed similar punishment.
He explains that since the activity of the ecclesiastical courts had not
ceased with the Reformation these courts tried to enforce the obli-
gations of charity. They punished “the man who refused to ‘pay to
the poor men’s box,’ or who was ‘detected for being an uncharitable
person and for not giving to the poor and impotent.’ ”150 Laud’s the-
ocracy was guided by principles of material justice and was therefore
opposed to formal rationality.151
From this point of view, the great English revolutionary movement
of the seventeenth century acquires a tremendous interest for those
seeking to understand our present situation. The political movements
of the twentieth century which have culminated in National-Socialism
and Fascism are a reaction against the heritage of the English revolu-
tionary movements of the seventeenth century. Despite this similar-
ity, there is a marked difference between the ‘eleven years of personal
government’ in England and the National- Socialist dictatorship.
Although the National-Socialist state is by no means an agnostic
state152 it also lacks some of the central features of the theocratic state.
If a paradox were permitted it might be said that the Third Reich is
a theocracy without a god. The structure of the Third Reich approxi-
mates that of a church, although it is a church which is not devoted
to a metaphysical idea. The National-Socialist state seeks only its own
glorification. But as
49
The Prerogative State 49
50 The Dual State
The Prerogative State 51
52 The Dual State
The Prerogative State 53
54 The Dual State
and with the commandments of ‘Jehovah,’ she would not hesitate to
decide against the people and its leadership…. Although persons of the
type of Mrs. K. individually can scarcely be said to constitute a danger
to the state, their attitudes and opinions encourage those who actually
are enemies of the state and promote their destructive activities.169
A similar tendency is revealed in a case involving the dismissal of a
postal clerk who was a member of the Jehovah’s Witnesses Association
but who, following its prohibition, had not participated in its meet-
ings. According to his religious conviction, the Bible commanded that
no mortal being should be greeted with ‘Heil’ since such a greeting
was due only to God. Accordingly, when he greeted anyone he raised
his right hand and said only ‘Heil.’ His saying only ‘Heil,’ and not ‘Heil
Hitler’ as was officially required, resulted in his dismissal as a postal
clerk, a position which he otherwise would have held for life. In this
struggle for his existence ‘the accused was not allowed,’ as the court
said, ‘to appeal to religious scruples.’170
The Third Reich does not merely persecute those who spread dan-
gerous doctrines; it wages a perpetual warfare against all those dic-
tates of conscience not in harmony with its teachings. A decision of
the Reichsgericht of February 17, 1938, is ample evidence of this. In
this case a sectarian family from Solingen was alleged to have con-
ducted family worship at home. The charge was dismissed by the
District Court, which argued that family worship did not infringe
on the order prohibiting the sect. The Reichsgericht then reversed the
decision and pronounced sentence on the grounds that ‘services of
this type are prohibited and punishable even if held within the family
circle among the former members of the prohibited sect.’171
National-Socialism gives neither mercy nor justice to any German
suspected of harboring ideas which are not in harmony with its own
principles. This was quite clearly expressed by Alfred Rosenberg
when he said that ‘he who is not devoted to the interests of the people
cannot claim their protection. He who is not devoted to the com-
munity needs no police protection.’172 Three hundred years earlier
Archbishop Laud enunciated the same idea
55
The Prerogative State 55
56 The Dual State
II
58 The Dual State
’political’ does not imply that this method is always resorted to. Reuss,
a National-Socialist authority on Administrative Law, distinguishes
between ‘actual’ and ‘potential’ political relevance:
The range of the ‘political’ is variable. Even within the Third Reich and
even within our own historical period, the sphere of the ‘political’ wid-
ens and narrows at different moments, in different situations. The so-
called ‘private sphere’ is only relatively private; it is at the same time
potentially political.182
When Reuss speaks of the ‘potentially’ political character of pri-
vate life he has in mind what we have called the jurisdiction over
jurisdictions of the Prerogative State: i.e., where the Prerogative State
requires the ‘political’ treatment of private and non-state matters, law
is suspended. Where the Prerogative State does not require jurisdic-
tion, the Normative State is allowed to function. The limits of the
Prerogative State are not imposed from the outside; they are imposed
by the Prerogative State itself.183 These self-imposed restraints of the
Prerogative State are of cardinal importance for the understanding of
the Dual State. The self-limitation of the Prerogative State is as deeply
rooted in the nature of National-Socialism as its existence.
Legally the Prerogative State has unlimited jurisdiction. Actually,
however, its jurisdiction is limited. This is the most significant crite-
rion of the constitution of present-day Germany.
In a decision of the Supreme Administrative Court (Oberver
waltungsgericht) of Saxony of November 25, 1938, these facts, so
important to an understanding of the Third Reich, became especially
apparent. The court had to determine whether it could deny a build-
ing permit without citing the grounds for the refusal. This raises the
question whether building construction also falls within the scope of
the Reichstag Fire Decree. The court said that it did because ‘a build-
ing permit, such as is required under present building laws, may be
denied on grounds deriving from the Decree of February 28, 1933. It
must also be recognized that in such a case the reasons for the deci-
sion need not be adduced.’184 The possibility of excluding decisions in
building construction cases from the jurisdiction of the administra-
tive courts by refusing to state the reasoning underlying the decision
is limited to the sphere
59
Limits of Prerogative State 59
60 The Dual State
fact that there are two types of states with totalitarian tendencies. The
common character of the totalitarian tendencies is the subordination
of all activities to the ends of the state. This may be done on the one
hand in the name of the masses. In the state dominated by the masses,
conservatives like Jacob Burckhardt and contemporaries of the French
Revolution like Hegel and John Adams are likely to view with horror
the swallowing up of other values in the all-consuming interests of the
society which is considered to be identical with the state. Burckhardt
characterizes democracy as a Weltanschauung in which the ‘power
of the state over the individual cannot be too great.’190 On the other
hand a state may be called totalitarian because of its absolute exercise
of power in order to strengthen the state in its external relationship.
This state may be a monarchy or an aristocracy; it is not necessarily a
democratic state. Erich Kaufmann, in 1913, in his book Die clausula
rebus sic stantibus und das Völkerrecht191 has expressed the idea of the
Machtstaat as exponent of totalitarianism.
Thus the totalitarian state may be attacked by conservatives inso-
far as it is a state reflecting the purposes of the masses, while it may
be attacked by liberals because of its authoritarianism. The Third
Reich may be interpreted as a confluence of both of these tendencies
towards the totalitarian state. It is similar to France in the revolution-
ary period insofar as it combines the Jacobinist movement within the
Massenstaat and the Napoleonic policy towards the outside world of
the Machtstaat.
We have avoided using the term ‘totalitarian state’ because of its
complex connotations. Its use in Germany goes back to Carl Schmitt’s
book Der Hüter der Verfassung192 where the term totalitarian state was
used for the first time in connection with Ernst Jünger’s concept of
‘total mobilization.’193 Carl Schmitt refused to accept a definition of the
‘totalitarian state’ as one which controls every aspect of social and eco-
nomic life. He distinguished between two types of totalitarianism, the
qualitative and the quantitative type. The significance of this distinction
becomes clearer if one takes into account the occasion on which it was
formulated. In November 1932 the Rheinische-Westfälische Langnamen-
Verein (Heavy Industry Employers’ Association of the Ruhr Val-
61
Limits of Prerogative State 61
62 The Dual State
Limits of Prerogative State 63
64 The Dual State
III
THE NORMATIVE STATE
66 The Dual State
The Normative State 67
68 The Dual State
The Normative State 69
70 The Dual State
the Normative State and the organs of the Prerogative State rests on
the differences between their respective sphere of jurisdiction and is
not a problem of varying degrees of discretionary power. However
extensive the discretion of an administrative agency —such as the
Foreign Exchange Control Office —its discretion can be exercised
only within the limits of its clearly defined jurisdiction. Were the
Foreign Exchange Control Office to exceed its jurisdiction, its acts
could be declared null and void in a proceeding before the ordinary
courts. The organs of the Prerogative State, however, are not so lim-
ited in their jurisdiction. There are no legally defined restraints which
narrow their jurisdiction. Since the jurisdiction of these authorities
is unlimited, they cannot be considered as regular administrative
agencies. Administration may be defined negatively as the state func-
tion which is neither legislative nor judicial, while the organs of the
Prerogative State are characterized by their unlimited jurisdiction.
Although a clear distinction exists between administrative agen-
cies and the organs of the Prerogative State it must be pointed out
that the activities of the ordinary administrative agencies have been
greatly influenced by the existence of the Prerogative State. Since the
jurisdiction of the organs of the Prerogative State is unlimited, a cer-
tain tendency exists among the agencies of the Normative State to
imitate this example and to enlarge the scope of their own discre-
tion. Furthermore, since the Prerogative State has completely stifled
all public opinion, resistance against such an encroachment was deci-
sively weakened. Such a development was closely connected with the
changes in the economic sphere. In the period of competitive capi-
talism there were very far-reaching limitations on the discretionary
powers of administrative agencies. The continuously increasing activ-
ity of the state in all fields of social and economic life has brought with
it a corresponding enlargement of the area of discretion. Moreover,
the mere existence of governmental arbitrariness, as embodied in the
Prerogative State, has dulled the sense of justice to such a degree that
the existence of an agency with limited jurisdiction is considered as
a legal institution even though the government exercises enormous
discretionary power.218
71
The Normative State 71
72 The Dual State
falling within the domain of the Normative State. This is not a func-
tion of law but of the preferences of National-Socialism. We quote a
National-Socialist author:
It would be a misinterpretation of the concept of substantive political
issues if police authorities directed economic policy for political aims
and for the use of the police power, and further, if they were to attempt
to pass measures of economic policy as political issues. It would not be
satisfactory to withdraw from the control which is implicit in judicial
review such measures of the ordinary police authorities. The tasks of
the Gestapo do not lie in the field of economic policy but rather in the
investigation and suppression of activities which are dangerous to the
state. In other words, all their duties fall in the sphere of state policy in
its narrower sense.220
In order to prevent a repetition of the experience of the sorcerer’s
apprentice (i.e., in order to master the spirits which he has invoked),
Reuss, the author of the above quotation, appealed to the principles
of the traditional administrative law as it functioned under the Rule
of Law (Rechtsstaat), since he sensed ‘the danger of excès de pouvoir
in a particularly acute form.’221 Legally speaking, however, there can
be no abuse of discretionary power in contemporary Germany, no
excès de pouvoir, of political authorities. The ‘particularly’ acute form
in which the abuse of discretionary power takes place in National-
Socialist Germany consists in informing the responsible official that
he has infringed the basic principles of National-Socialism by dis-
turbing economic life through the exercise of prerogative measures.
In spite of the existing legal possibilities for intervention by the
Prerogative State where and whenever it desires, the legal founda-
tions of the capitalistic economic order have been maintained. If one
picks at random a volume of the decisions of a German civil court and
examines it systematically, this conception will find complete corrob-
oration. Freissler, Secretary of the Ministry of Justice, has clearly real-
ized that economic law in a narrower sense (the National-Socialists
call it ‘community law’) was left relatively untouched by the revolu-
tion of 1933. Even Freissler recognizes that the mores of the ‘ethnic
community’ did not affect it. As late as 1937 Dr. Freissler said in his
article ‘Der
73
The Normative State 73
74 The Dual State
The Normative State 75
76 The Dual State
b. Sanctity of Contracts.
A similar attitude was expressed by a court in a case which was in
many respects political and which involved the sanctity of con-
tract. In the capitalistic society credits can be given and goods can
be transferred only if one has the guarantee that contracts will be
honored: Pacta sunt servand. National-Socialism has not abolished
this principle though it by no means treats it as a corollary of Natural
Law. The difference between the western democracies and National-
Socialist Germany becomes particularly clear in their attitude towards
the Natural Law status of the sanctity of contracts as expressed in the
sphere of International Law. The foreign policy of Germany in the last
years has amply demonstrated the practical application of this system
of ethics which regards contracts as terminable whenever it appears
desirable. The clausula rebus sic stantibus which had been worked out
by German international lawyers before the war plays a central role
in National-Socialist theory and practice in the field of international
law. As early as 1930 Carl Schmitt referred to the principle pacta sunt
servanda as a tendency of ‘loan shark’ ethics.229
Is this attitude also dominant in the sphere of private legal rela-
tions? If it were possible to terminate any contract at will by appealing
to general National-Socialist principles, the Normative State could
not exist. This in turn would mean the destruction of the capitalistic
system. Some courts have at least definitely sounded a warning on this
point. The Bavarian Administrative Court (Verwaltungsgerichtshof)
had to decide whether a specific National-Socialist clausula rebus sic
stantibus was valid in the internal legal order of the Third Reich. In
1882 a Bavarian munic-
77
The Normative State 77
c. Private Property.
If the courts look at the traditional legal order as ‘the emanation of
the ethical principles accepted as binding by the ethnic community’
they would be inconsistent if they refused their protection to prop-
erty owners who are threatened with the intervention of non-political
authorities hiding themselves under National-Socialist phraseology.
A case dealing with the farm-land law, a sphere in which National-
Socialist ideology has allegedly made its most important
78
78 The Dual State
The Normative State 79
court, however, did not follow this reasoning, and acting in accord-
ance with the principles of the Normative State, declared that
‘although National-Socialism seeks to overcome the inadequacies of
the former regime with speedy and energetic actions its extensive leg-
islative activity demonstrates that statutory measures and legal pro-
cedures are required for this end.’236 The court emphasized that the
fiscal administrators are as much bound by the pre-National-Socialist
laws as they are by the laws and orders of the Leader. The mayor was
informed that inasmuch as he was not an agent of the Prerogative
State he had to assure himself that ‘in the National-Socialist state the
head of a community should avoid arbitrary measures.’237 In questions
of road constructions and highway taxes the Third Reich permits the
majesty of the law to prevail.
d. Competition.
The German courts have continued to uphold the previously prevail-
ing laws regulating unfair competition among business enterprises.
The Appellate Court (Oberlandesgericht) of Cologne denied an injunc-
tion to an association of oil dealers who, with permission of the Board
of Trade and the Trustee of Labor, had fixed gas prices. The injunc-
tion was to be applied against a non-member selling at lower prices.
The association pointed out that the prices which they had fixed had
been approved not only by the Board of Trade but by the Trustee of
Labor as well, i.e., by an authority erected by the National-Socialist
state in order to protect the interests of the community. In denying
the motion for the injunction, the court declared it ‘irrelevant that the
price fixing of the applicant had the approval of the Trustee of Labor
of Düsseldorf and of the Board of Trade and Industry of Cologne
because these organizations are not legally empowered to fix prices in
a binding way on the motor fuel market…. The approval of the said
organizations does not make the prices binding on outsiders.’238
Three years later there occurred a case which indicated that the
capitalistic laws of the market, involving the right of the producer to
set any price upon his product, were still operative where they did not
come into opposition with the special regulations of the
80
80 The Dual State
e. Labor Law.
The Normative State has also warded off threats against the posi-
tion of the entrepreneur in the firm. In a case before the Supreme
Labor Court (Reichsarbeitsgericht) a branch manager complained of
dismissal, without adequate notice. Sheltered by the German Labor
Front, she had attempted to rent for herself the shop in which she was
employed. The Labor Front had con-
81
The Normative State 81
82 The Dual State
The Normative State 83
84 The Dual State
The Normative State 85
86 The Dual State
The Normative State 87
in which the court withdrew an adopted Aryan child from its Jewish
foster-parents. The most precious thing which these parents pos-
sessed, their adopted child, was taken away from them in a decision,
typical of National-Socialist cynicism, which read: ‘The principle,
public welfare precedes self-interest, applies particularly to the Jewish
members of the German state.’263 This last decision certainly sacrificed
the positive law in favor of the party program. It is no accident that
the decision was one dealing with a Jew.264
b. The Racial Idea.
Although the party program as a whole has not been substituted for
the legal system which prevailed before 1933 we must raise the ques-
tion to what extent one of the central points in the program, the racial
idea, has been successful against the Normative State. To what extent
have the authorities of the Normative State respected the claims of the
racial idea? The racial problem in Germany includes the Jewish prob-
lem as its most important, though not sole, concern. In conformity
with a previous procedure we shall suspend our consideration of the
Jewish problem and deal only with the relationship between the non-
Jewish aspects of the racial program and the Normative State.
During the first years of the National-Socialist regime, the courts
generally tried to restrict the bearing of the racial idea to those areas
where it was legislatively required. This is well illustrated by a decision
of the Reichsgericht stating that ‘the courts are not required to accord
validity to National-Socialist views beyond the limits which legisla-
tive activity of the National-Socialist state itself has drawn.’ The court
underlined in this connection ‘that National-Socialist legislation con-
cerning racial problems has by no means attempted to enforce all the
points of the National-Socialist program.’265 This decision, however,
has been obsolete for some time. It should not be overlooked that
the ‘Non-Aryan Laws’ of 1933 were followed by the ‘Anti-Jewish’ leg-
islation (Nürnberg Laws) of 1935.266 Since 1935, persons classified
as Jewish are subject not only to the Aryan Laws of 1933 but to the
extremely rigorous ‘exceptional’ laws (Ausnahmegesetze) as well.
The racial laws are primarily directed towards family problems.
88
88 The Dual State
The Normative State 89
90 The Dual State
The Normative State 91
a cigar and cigarette store for sailors whose ships were docked in the
free port of Hamburg. Although the Jewish partner had fought in
the Great War and was by far the more efficient of the two partners,
the Aryan partner applied for an immediate dissolution of the part-
nership. He gave as a reason that the district leader of the National-
Socialist Party had threatened to confiscate the store license because
the ‘economic activities of a non-Aryan firm caused unrest among the
seamen.’279 The application was successful. The behavior of the district
leader conflicted directly with two orders issued by the Ministry of
Economics. These ‘orders did not influence the district leader,’ as was
demonstrated by his testimony. Even though the pressure brought by
the district leader was in violation of the law, it had a legal bearing on
the Jewish question. For according to the court ‘the plaintiff cannot
be expected to oppose the wish of the district leader…. If he were to
do so he would be opposing the general sentiment of the people and
also the National-Socialist Party which rules the state.’280 This deci-
sion marked the defeat of Dr. Schacht’s policy and the triumph of his
opponents among the party authorities. Since 1937, the situation dis-
cussed in the foregoing decision has frequently recurred. The party
authorities, as agents of the Prerogative State, have used their power
to exclude the Jews from all economic activities.
A parallel case came before the Reichsgericht. A partnership between
a Jew and an Aryan was being dissolved. When the Jew requested that
he be provided with monthly reports according to the law, the Aryan
partner refused, declaring that ‘the district leadership of the party
has forbidden the defendant or his employees to prepare and send an
account to the plaintiff. It has indeed prohibited all direct communica-
tion between the defendant and the plaintiff.’281 The defendant argued
that ‘under such conditions his failure to obey an explicit prohibition
of the district leadership cannot constitute any ground for issuing
judgment against him.’282 In a state wherein the dominant party uses
such methods, it does not really matter whether a Jewish complaint is
occasionally successful. Only in the most unusual circumstances will
a Jew bring a charge in court against an Aryan. A municipal
92
92 The Dual State
The Normative State 93
94 The Dual State
The Normative State 95
96 The Dual State
The Normative State 97
98 The Dual State
Socialist theory of law is that the police power has been replaced by
the estates in those matters solely of interest to the estates. Since this
allegation may seem astonishing and contrary to the usual concept of
totalitarianism, we quote several well-known writers on police law.
Knauth:
There are two diametrically opposed theories: one gives fundamentally
unlimited jurisdiction to the police power … and the other views its
scope as smaller than heretofore. For this reason the creation of inde-
pendent organizations, which has taken place in many spheres, is evi-
dence of the tendency to restrict the power of the police in the sphere
in question. The true reason for this development is that the consid-
erations in the light of which these matters are to be settled usually lie
outside the jurisdiction of the police.299
Schmidt:
The police must keep in the background in matters connected with sys-
tems of a different nature. The police are not concerned with the estate
system, their jurisdiction is limited to issues involving the regulation of
the whole community.300
Hoehn:
The limits of the police power are set by the tasks which the existing
concrete orders impose on the police.301
Hamel:
The exclusion of certain organizations from the jurisdiction of the
police has gained new importance. The police are not totalitarian … the
natural structure of these groups is neither the responsibility nor the
concern of the police.302
Koehler:
Although in some ways the police power has been increased, it has been
indirectly diminished to the extent that the new estate organizations
operate as self-supervising bodies…. The
99
The Normative State 99
state does not subject the vested rights of ethnic comrades to unjustified
or arbitrary restrictions.303
The final opinion we shall quote is one of the most extreme.
Professor Koettgen requires on the one hand the death penalty for all
violations of the ethnic code and on the other argues: ‘The function
of the police in an ethnic community comprising numerous groups
is merely supplementary. They are required to become active only
where particular norms have shown themselves to be inadequate.
Where concrete orders inside the state are operative the police have
no function.’304
In summarizing this point we may say that the police, who are the
embodiment of the state, are qualitatively but not quantitatively ‘total-
itarian’ (cf. p. 60).
The statement that the estates protect the business world against
interference from the Prerogative State does not present the complete
picture. In order to attain their goals, business-men in contemporary
Germany require not only that the Prerogative State abstain from
intervening in their enterprises but also that the state help them in a
positive way. One of the most important writers of National-Socialist
legal theory, Reinhard Hoehn, claims that the police authorities must
execute the decisions of the estates without any review. The police
authorities are no longer organs of the state exclusively (as in the
period of competitive capitalism) but are now also the organs of the
business-men’s estates. Hoehn formulates this:
The new conception of administration leads to a transformation of
police law. In the hitherto prevailing system the police were an organ of
the state administration —now the functions of the new estate organi-
zations overlap with those of the police and a change in the previous
position of the police is necessitated. Police action is no longer initiated
by the police administration alone; but it is also responsive to the estate
organization which it is supposed to serve. It is for this reason that the
old liberal conception of the status of the police must be given up.305
Thus the estates, which are the most inclusive associations of business-
men, give the purest expression of the Normative State.
100
They are a part of the Normative State, and in principle, their activi-
ties are treated as non-political. Though the police authorities have
the power to intervene in these activities (since their jurisdiction is
unlimited), they do not regularly do so. Membership in the guilds is
(within the jurisdictions of the guilds) a de facto guarantee against
the Prerogative State. To the extent that the estates abstain from
actions which the police call ‘political,’ they enjoy security from the
Prerogative State.
The principles governing the relations between the estates and the
political authorities were formulated by the Reichsgericht on April 28,
1936, in a decision dealing with freedom of the press in National-
Socialist Germany. The defendant was charged with a malevolent
attack on the government because of his statement that there was no
freedom of the press in Germany. The Supreme Court distinguished
between unlimited and regulated freedom of the press and admitted
that National-Socialism had eliminated unlimited freedom of the
press. The new Press Law was formulated in the legislation regard-
ing the Press Chambers and the journalistic profession.306 Within
the limitations specified by these statutes, the ‘orderly’ press ‘enjoys
a freedom of a special type’ —‘regulated freedom of the press.’ The
supervision of this ‘regulated freedom’ is the responsibility of the self-
governing bodies of the press. Those bodies, however, do not possess
an unrestricted monopoly over the supervision of the press. Although
pre-censorship does not exist, the Reichsgericht has recognized that
‘any conceivable violation can be dealt with (aside from the measures
of the self-governing bodies) by the state on the basis of the Decree
of February 28, 1933.’307 This decision is interesting because of its atti-
tude towards the competition between political and estate authori-
ties. No profession borders so closely on the ‘political’ as journalism.
A collision between the estates and political officials is scarcely avoid-
able. In spite of this, the Third Reich preferred to form a press estate
so that it could at least deal with economic aspects of the press within
the framework of the Normative State. The estate should be adequate
to take care of the everyday economic questions of the press, while as
a last resort the Decree of February 28, 1933, can always be
101
recipient has committed acts hostile to the state after January 30,
1933. Whether such activities actually took place shall be submit-
ted to the decision of the Minister of the Interior and the Minister
of Labor.’312 This provision did not pretend to be a protection against
violence and it retroactively deprived helpless cripples and invalids of
their pensions (their only source of income). It is no accident that the
Third Reich chose the Law concerning Social Insurance as the first
instance in which the activities of the unrestrained Prerogative State
were enacted in statute form.
104
105
Part II
THE REPUDIATION OF
RATIONAL NATURAL LAW
BY NATIONAL-SOCIALISM
tification of law and morality in the Third Reich has resulted in the
assimilation of morality to National-Socialist law. This opinion has
been expressed unambiguously in the National-Socialist literature.
Dernedde, for example, writes: ‘The present promulgation of the
indissoluble identity of law and morality signifies the integration of
both of these categories into the ethnic community. It is the opposite
of an acknowledgment of a transethnic universal Natural Law which
limits the power of the legislator.’328
It is evident that such a sweeping simplification of the deepest
problems of political theory contributes greatly to huge propagandis-
tic successes among the masses of the people. Ideas which Machiavelli
presented to a small circle of initiates are disseminated by Adolf Hitler
by means of all the modern techniques of communication even to the
adolescent members of the Hitler Youth organizations. Figgis’ com-
ment on Machiavelli applies equally to Hitler: ‘He did not start from
any ideals of government or desire to find them, he did not meditate
on the philosophy of law. Social justice has to him no meaning apart
from the one great end of the salvation of his country. He had the
limited horizon and the unlimited influence which always come of
narrowing the problem.’329 But the reverse side of this outwardly suc-
cessful enterprise is the destruction of the ethical tradition of Western
civilization. Hermann Heller said that ‘once conscience becomes a
problem of cattle breeding, moral problems lose their inescapability.’330
The actual repudiation of Natural Law is less surprising than the
form in which it is renounced. The doctrine of Natural Law, after all,
has been discredited for more than a century. It has been refuted time
and again by political science, and yet it has not lost its vitality. For
more than a hundred years, we have been intellectually denying every
type of Natural Law while our conscience has simultaneously been
demanding its acknowledgment. At a time when, thanks to Bergbohn’s
unfortunate influence, positivism flourished in Germany, American
legal philosophy was fully aware of this discrepancy. Morris Cohen,
in a lecture delivered in 1914, said: ‘To defend a doctrine of natural
rights today requires either insensibility of the world’s progress or else
112
sented by Cicero and Seneca.’336 Carlyle sees the same cleavage in the
various notions concerning the equality or inequality of man. He sets
the doctrine of primitive equality alongside the ancient view of ine-
quality. The specifically ‘modern’ political theory is of Stoic origin and
has been influential both in Christianity and in the Enlightenment.
In this doctrine ‘there is only one possible definition for all mankind,
reason is common to all … there is no race which under the guid-
ance of nature cannot attain to virtue.’337 For Germany, however, this
doctrine had ceased to be ‘modern.’ National-Socialism postulates its
opposite–namely, the racially conditioned and humanly unchange-
able inequality of man. Therewith the decisive step from Aristotle to
Cicero comes to nought and the long tradition of Christianity and
Humanism, of occidental science and philosophy passes into discard.
Moreover, owing to its repudiation of Natural Law, National-
Socialism is opposed to the medieval doctrine of the power of the
absolute prince. The foremost characteristic of the dictator is not
the fact that he makes law in accordance with his will. The theory of
modern dictatorship can only be apprehended by considering again
a distinction current in the Middle Ages which was forgotten in the
era of democracy and the Rule of Law. McIlwain338 points out that in
present times distinctions which were made during the Middle Ages
are ignored. The medieval king was considered to be absolute and
practically irresponsible, but his power was not an arbitrary one. The
old maxim, ‘What the king has willed has the force of the law,’ was–
according to Mcllwain–only valid if this will was expressed in a way
prescribed by law and tradition and was restricted to certain purposes.
There existed definite limitations for the will of the medieval prince
which were usually expressed by the formula: ‘The king is bound by
the Law of God and the Law of Nature.’ This distinction sheds new
light on the approach pursued in the first section of this book. By the
‘Enabling Law’339 Hitler became Germany’s absolute ruler after he had
previously (by the Decree of February 28, 1933) acquired the power
of a despot. Mcllwain, who obviously alludes to the present German
situation, regrets that at present both concepts are regarded as being
practically identical.340 Furthermore, he points
114
II
sion in the legal system of the Corpus Juris. As the heir of the Imperium
Romanum, the Roman Catholic Church took over its Natural Law
doctrines although they were subjected to extensive modifications in
order to adapt them to the needs of the Church.
The adaption of the abstract principles of a universal and rational
Natural Law to the requirements of a church intimately involved in
temporal concerns was effected by the medieval doctrine of ‘relative’
Natural Law. According to this theory man was unable, after the Fall,
to acquire anew the pure Natural Law of his previous state. Therefore
he has had to be content with ‘relative’ Natural Law although he is still
accorded the privilege of striving to approximate a state of ‘absolute’
Natural Law as nearly as possible. Troeltsch has shown343 how this
theory, in the course of centuries, was time and again opposed by
those who never doubted the possibility of the realization of an abso-
lute Natural Law. This opposition, coming from those who believed
in the existence of a community regulated by the principles of an
absolute Natural Law, was crystallized in the sects which, despite
merciless persecutions, steadfastly adhered to the belief in absolute
Natural Law.
While these sects denied the relativistic character of the Catholic
theory of Natural Law, Lutheranism asserted its relativity. Holding
that the legal regulation of interhuman relationships is a worldly
affair bearing the strains of sinfulness, Lutheranism preached uncon-
ditional obedience to every secular regime. This ‘extremist conserva-
tive glorification of autocracy’ (Troeltsch) by Lutheranism was the
consequence of an attitude which attributed only slight importance
to worldly affairs. To Lutheranism, true Christianity resides in the
inner soul of man (‘Innere Herzens-Christlichkeit’). It is independ-
ent of the political and legal order of the temporal world as long as
freedom of religious conscience is not violated. The Christian must
submit humbly to a harsh and unjust regime which he is to regard as a
punishment imposed by the Lord. But any restriction of the freedom
of conscience constitutes an attack on the fundamental principles of
Christian Natural Law.
The National-Socialist doctrine, with its intense enmity to
117
worldly power dares to make laws affecting the soul the Lord
interferes.’345
In its conflict with the Confessional Church, National-Socialism
points to Hitler’s declarations that he did not conceive himself as a reli-
gious reformer. Yet his repeated assurances that National-Socialism is
only a temporal movement, leaving the regulation of man’s relations
with the Lord to the churches, could not allay existing suspicions. As
long as National-Socialism claims the power to decide authoritatively
what is temporal and what is spiritual, and as long as the Third Reich
seeks to ‘govern the souls of men,’ it will be unable to establish peace-
ful relations with the Confessional Church. For the latter would have
to renounce its most fundamental principles in order to assent to the
political control of the conscience.
For Confessional Lutheranism freedom of conscience is an absolute
value; to compromise it is equivalent to a renunciation of principle.
In order to understand the tensions between church and state in
the Third Reich one should not emphasize superficial characteristics
or attach undue importance to the new cult of Wotan, in which a
few secondary-school teachers take particular interest. Devotion to
the latter cult would never have provided National-Socialism with the
impetus necessary to initiate and conduct the church struggle. The
strife arose when National-Socialism was confronted with remnants
of a faith in absolute Natural Law asserting its independence in the
face of the will of the state. National-Socialism has always been willing,
and is still willing, to acknowledge the claims of Christianity except
where they are incongruous with Art. 24 of the National-Socialist
Party Program, which requires that the Christian religion subordi-
nate itself to the vital necessities of the German people. Thus in the
sphere of religion we meet the same reservation as in the sphere of
law, the potential superiority of political considerations which impels
National-Socialism to fight the representatives of all ideologies influ-
enced by Natural Law doctrines. In ‘Christianity with reservations’
Christianity is of less importance than the reservations. Although for
propagandist reasons National-Socialism does not dis-
120
While it is true that the Christian religion is both historically and doc-
trinally bound to Natural Law, rationalistic Natural Law is not nec-
essarily dependent on the Christian notions with which it has often
been associated.
The schoolmen of the later Middle Ages had already examined
the question whether law is rational because it is the will of God or
whether God willed it because it is rational.351 The schoolmen finally
chose the latter alternative and by doing so prepared the way for the
doctrine of the existence of rational law independent of God. With
the proposition of Hugo Grotius that an eternal absolute law dictated
by reason would exist even if there were no God, the classical age of
secular Natural Law was initiated. In Pufendorff ’s writing, the theory
of rational law, far from constituting a revolutionary ideology, pro-
vided a justification for absolutist monarchy, while in Rousseau it
legitimized a radical form of democracy. Secular Natural Law influ-
enced Frederic the Great’s legislation and found its most enthusiastic
interpreters in the philosophers of German idealism, Immanuel Kant
and the young Fichte. Kant calls Law the apple of God’s eye, and the
state the guarantor of the law. Despite the attacks of National-Socialist
theorists who claim that it is un-German, Natural Law, as it is known
today, is largely the creation of German thinkers.352 To what extent do
residues of the classical type of Natural Law still persist in Germany?
How are they related to contemporary National-Socialist doctrines
which express their hostility towards universally oriented Natural
Law in the crude form of anti-Liberalism?
During the eighteenth century, Natural Law legitimized the exist-
ing distribution of powers.353 When, however, in the course of the
French Revolution, it became apparent that it could also legitimize
revolutionary demands, Natural Law incurred the hatred of all those
who were interested in the preservation of the status quo. The reac-
tion against Natural Law (which had thus been compromised by the
radicalism of the French Revolution) is best represented by Burke and
Hegel.354
123
ready pointed out that Hegel employed the terms Volk and Staat
indiscriminately and that in two references to the same Greek pas-
sage, he once used the word Volk and at another time the word
Staat. Behind these philological skirmishes, however, deeper differ-
ences of opinion are to be discovered. Insofar as National-Socialism
rejects rational Natural Law and accepts a conception of the ‘political’
derived from the notion of the ‘enemy,’ there are indeed close con-
nections between itself and Hegelianism. To the extent, however, that
National-Socialism gives a specific content to its concepts of politics
(as in its racial theory and its theory of ‘blood and soil’), not even the
remotest relationship exists.
Dealing with the Jewish question, Hegel asks for civil rights for the
Jews. He condemns a policy by which the Jews would be deprived of
full rights both in state and society. This attitude of Hegel’s is the more
interesting since he characterizes the Jews as a nation. He justifies his
attitude towards the Jews by the idea that the Jews are men and there-
fore have a right to be treated as men.367
Hegel swept away the remnants of rational Natural Law which the
Historical School had not destroyed. His work and that of Savigny
undermined the great German tradition of secularized Natural Law
and the attempts of some Kantians to restore it were of no avail.
Nevertheless, the scientific refutation of secularized Natural Law did
not lead to its disappearance. As early as 1910, Ernst Troeltsch raised
the question of how much the socialist-labor movement had been
influenced by ideas derived from Natural Law. At this time, how-
ever, he did not attribute much importance to this influence, assert-
ing that ‘contemporary Marxian Socialism does not base its theories
on the absolute Natural Law theory of freedom and love as found in
Christian doctrine … it rests rather on a conception of the natural
laws of economic development.’368 Only three years later, however,
Troeltsch strikingly enough modified his opinion and characterized
Social-Democracy as the heir of ‘radical Natural Law’369 declaring that
Social-Democracy was now the bearer of the traditions of the sects.370
This discussion of the interrelationships between Socialism and
Natural Law371 raises the question as to what extent the remnants
127
of political conflicts, but only the test of power. Marx was perfectly in
accord with the Hegelian tradition, justifying the class struggle for the
shortening of the working day in the words spoken by the laborer in
Capital: ‘I demand … a working day of normal length, and I demand
it without any appeal to your heart, for in money matters sentiment
is out of place. You may be a model citizen, perhaps a member of the
Society for the Prevention of Cruelty to Animals, and in the odour of
sanctity to boot; but the thing that you represent face to face with me
has no heart in its breast.’ And Marx sums up the argument: ‘There is
here, therefore, an antinomy, right against right, both equally bearing
the seal of the law of exchanges. Between equal rights force decides.’374
Thus Marx dissolves the concept of justice in toto and substitutes
for it ‘relative justices’ which are appropriate to the existing economic
situations. He says:
The juristic forms, in which these economic transactions appear as activ-
ities of the will of the parties concerned, as expressions of their com-
mon will and as contracts which may be enforced by law against some
individual party, cannot determine their content, since they are only
forms. They merely express this content. This content is just, whenever
it corresponds, and is adequate to, the mode of production. It is unjust,
whenever it contradicts that mode. Slavery on the basis of capitalistic
production is unjust, likewise fraud in the quality of commodities.375
It is quite understandable that the liberal Benedetto Croce should
have referred to Marx as Machiavellian. And yet this characteriza-
tion is misleading since it takes into consideration only one aspect of
Marx.376 Even the most influential thinker of the nineteenth century
could not transcend the contradiction inherent in our epoch between
conscience, guided by a belief in Natural Law, and intellect, demanding
its rejection. The famous slogan, ‘the proletariat has no ideals to real-
ize’ is supplemented by another, ‘the proletariat should set in motion
the process of liberation.’ Karl Marx states that Utopianism consists in
thinking that, under the present circumstances, good intentions will
suffice to establish a regime of justice. However, according to Marx,
this state of har-
129
III
NATIONAL-SOCIALISM AND
COMMUNAL NATURAL LAW
tically in the Johannean sense —they will all think in the same
way, and motivated by the irrationality of this feeling will act with a
divinely willed solidarity … this is the kernel of the Slavic conception
of Gemeinschaft inside and outside of the Church.’397
The practical significance of the theoretically intriguing difference
between the concepts of societal and communal Natural Law is to be
found in National-Socialist theories of international law as they have
been revealed by the foreign policy of the Third Reich.
There is an interesting inconsistency in Dietze’s study Naturrecht
der Gegenwart.398 After attacking the application of societal Natural
Law to domestic politics, he accepts without reserve all those prin-
ciples drawn from Natural Law which in the field of foreign politics
legitimized the remilitarization of Germany: the principles of the
equality of rights, self-determination and the freedom to choose
instruments of defense, etc.
If, however, we study the more recent German literature, espe-
cially publications after March 7, 1936 (when the Rhineland
was remilitarized), we discover a remarkable change.399 Gürke,
Professor of International Law at the University of Munich, for-
mulated with especial clarity the new National-Socialist theory of
international law as derived from the concept of ‘International Law
Community’: ‘International law presupposes the racial and cultural
affinity of states in addition to their continuous relationship.’400 The
practical consequences of this theory are likewise indicated by Gürke.
He points out, for example, that as long as Bolshevist Russia is ruled
by Jews and inspired by Marxism, it remains a racial and cultural alien
to the concrete ‘community’ of nations, and therefore stands, accord-
ing to the National-Socialist doctrine, outside the pale of interna-
tional law. It is no less important that in National-Socialist thinking,
the ethnic community (Volk) extends beyond the boundaries of the
state. The fact that there were ethnic comrades (Volksgenossen) living
under the sovereignty of foreign states had definite implications for
National-Socialism. Societal Natural Law served as the basis of inter-
national law as the Third Reich was rearming. In the second phase of
its development, the National-Socialist regime regarded com-
139
Part III
of all values. D’Ewes, in his autobiography, had remarked that ‘if this
could be done lawfully, then by the same right … no man was, in
conclusion, worth anything.’438 This English aversion to the Dual State
was brought to America by those emigrants who were driven out of
England by Archbishop Laud.
When, some centuries later, during the Civil War, a Dual State
seemed imminent, the Supreme Court halted the development. In ex
parte Milligan, Justice Davis upheld the Rule of Law:
No doctrine, involving more pernicious consequences, was ever
invented by the wit of man than that any of its provisions can be sus-
pended during any of the great emergencies of government. Such a doc-
trine leads directly to anarchy or despotism, but the theory of necessity
… is false…. Martial Law cannot arise from a threatened invasion. The
necessity must be actual and present…. Martial Law can never exist
where the courts are open, and in the proper and unobstructed exercise
of their jurisdiction.439
When this opinion is compared with the permanent state of martial
law in Germany today, one sees the correctness of Morstein-Marx’s440
statement that the German and American constitutional situations
represent opposite extremes. The more astonishing is that Reinhard
Hoehn, who expounds National- Socialist political theory at the
University of Berlin, has asserted that between the National-Socialist
antipathy to legal norms and the Anglo-Saxon adherence to the Rule
of Law ‘there is not a real but only a verbal conflict.’441 According to
Dicey’s classical definition ‘the Rule of Law may be used as a formula
for expressing the fact that with us the law of the constitution, the
rules which in foreign countries naturally form part of a constitu-
tional code, are not the source but the consequence of the rights of
individuals, as defined and enforced by the Courts.’442 According to
National-Socialism, rights of the individual in the sphere of public
law are, at best, reflexes of the statutes of public law, whereas under
the Rule of Law public law is nothing but a bundle of individual
rights.443 Hoehn’s statements only further corroborate the contention
that one cannot take seriously the study of political science and juris-
prudence in National-Socialist Germany as intellectual disciplines.
Since February 1933 an unbridgeable gap
157
discarded Natural Law because its potential dangers had become only
too apparent. The partial restitution of bureaucratic for patrimonial
methods of administration, which had become necessary after the
liberation of the peasantry, was not confined to the rural areas. It per-
meated the whole state and transformed the despotism of the enlight-
ened monarchy into the absolute domination of the state bureaucracy.
It was this absolute bureaucracy which Hegel had in mind when he
wrote about the state in his Philosophy of Right.
Georg Friedrich Knapp’s pioneer investigations into the social con-
sequences of the liberation of the peasantry render it unnecessary for
us to dwell upon this particular point. The abolition of serfdom can
only be understood in the light of the Regulatory Decree of September
14, 1811 and the Declaration of May 29, 1816.459
At the same time, the legal protection which the absolute mon-
archy had introduced for the prevention of the eviction or ‘putting
down’ of peasants (Bauernlegen) failed. Consequently the economi-
cally weaker strata of the peasantry became agricultural day-laborers.
Otto Hintze460 calculated that of the 145,000 serfs in the old Prussian
provinces (excluding Silesia) only about 45,000 became independent
farmers after the abolition of serfdom. The rest were ‘put down’ by the
Junkers and became part of the agricultural proletariat.461
The abolition of hereditary serfdom was accompanied by a strength-
ening of the tendencies towards a police state. The modification of the
police-idea which had been effected under the influence of Natural
Law during the age of enlightened despotism can be fully appraised
only with reference to the social structure of the period. The over-
whelming majority of the population had not even been touched by
the new Natural Law oriented legislation since they were under the
patrimonial jurisdiction of the Junkers and not of the agencies of the
state. For the upper classes, enlightened despotism meant a lessening
of the pressure of the police administration since the formerly auton-
omous estates were now socially and economically assimilated into
the absolute monarchy. The more the large estates in eastern Germany
were trans-
163
ization. The liberation of the peasantry meant that the landed nobility
exchanged social privileges for economic power. The losses and gains
of this change made it possible for the Junkers, adapting themselves to
the pattern of economic development, to transform their patrimonial
estates into capitalistic enterprises oriented towards export. This new
type of enterprise was easily integrated into bourgeois legal order,
which was being modernized by concurrent reforms of the legal
regulation of industry and commerce. The interests of the dominant
landed aristocracy were, to a large extent, in harmony with the eco-
nomic aims of the commercial and industrial bourgeoisie, which had
been freed from the shackles of mercantilism. For ‘as long as indus-
trial backwardness forces large-scale agriculturalists to export, the
landed proprietor will be well disposed towards industry and trade.’466
The free trade tendencies of German tariff policy were the expression
of this attitude, which made possible the strengthening of the bour-
geoisie, whose political weakening was the chief goal of the absolut-
istic bureaucracy. However, the subsequent development of industry
reinforced the influence of the bourgeoisie and threatened the politi-
cal power of the landed Junkers.
The domestic policy of the governing aristocratic bureaucracy467
had as its mainspring the persecution of popular agitators and fore-
runners of national unity by the police. In other words, its domestic
policy was essentially oriented towards defending itself against the
revolutionary democratic movements (in this period identical with
the national movements) which were surging over Europe subse-
quent to the formation of an industrial proletariat. At the same time
the governing aristocratic bureaucracy, in its role as executive organ
of the agrarian-capitalist Junker aristocracy, was moving towards a
liberal free-trade policy and a rational system of private law. During
the Restoration the dual nature of the monarchy manifested itself in
the conflict between the judiciary and the administration.
The Restoration saw a revival of the study of law. Its most distin-
guished theorist, Savigny, denied the possibility of changing the his-
torically developed law by means of legislation. Characteristically, his
definition of law referred only to private law.
166
The same Savigny, as Minister of Justice, asserted that the state could
declare its police organs independent of judicial control. This rejec-
tion of the Natural Law doctrine of the Enlightenment implied (in the
sphere of private law) that law as it had historically developed, was
inviolable, whereas in the sphere of state administration the rejection
of Natural Law tended to be associated with the scrapping of what-
ever had been public law in favor of the legally unrestricted power
of the police. Illustrative of this trend are the repeated attempts to
obstruct the judicial control of punishments imposed by the police.
Conditions reverted to what they had been in 1749. The rescript of
April 17, 1812 assigned jurisdiction over the lesser criminal cases con-
cerning domestic servants exclusively to the police, and specifically
excluded the right of appeal. It is interesting to note that punishments
of lower class persons by the police included corporal punishments
and that in the rural areas the Junker nobility in most cases remained
in possession of the patrimonial police authority. Thus, along with
the law administered by the courts, there existed another body of law
created and applied exclusively by the police. In the succeeding years,
the police-state increasingly blocked the legal control of police meas-
ures, even in those cases in which the unrestricted power of the police
could have been limited by legalistic interpretation of the decree of
December 26, 1808.
The end of this evolution was foreshadowed by the first signs of
the revolution of 1848. § 6 of the ‘Law concerning Admissibility of
Legal Appeal from Orders of the Police’ of May 11, 1842 provided
that a review of police cases by the courts is admissible only if the
police order has been declared by a higher administrative body to be
in conflict with law. The year 1847 witnessed the introduction of the
Konflikt (see p. 29) which National-Socialist Germany has adopted
from the Restoration —the darkest period of reaction in modern
Prussian history.
If one takes into account that the police had also ‘positive tasks,’
that the control of the police by administrative courts did not exist
and judicial control no longer existed, it can easily be seen why the
concept of the Dual State emerged at that time. It was perceived that
administrative matters were settled, not in
167
D. The Rechtsstaat
The vigour of these political forces was amply demonstrated by
the resistance they offered to the liberal democratic forces after the
delay of the feudal forces and the defeat of absolutism. It is especially
revealing that, during the conflict between Bismarck and the liberal
opposition in the ‘sixties, the groups demanding the rule of law and
parliamentary system of government never succeeded in dominating
the entire structure of the state. By retaining unlimited control of the
military, the crown pre-
168
II
although it will be found later that all three converge on and support
each other.
1. Power as the aim of economic policy means the subjugation
of all ‘economic’ policies to considerations of political necessity or
expediency. In the present world situation, striving for an increase
in power is identical with striving for economic nationalism and
imperialism. This force always works both externally and internally.
Characteristically, force applied internally was considered and justi-
fied as a means of increasing the strength of the group in its external
relations. The main task became that of organizing the economic sys-
tem as an instrument for the increase and preservation of the power
of the state and of the groups which aspired to greater power in which
this power has been invested and centralized. Correspondingly the
direction of economic affairs had to aim chiefly at increasing the
power of the state for protective and expansionist purposes even
when such a policy involved considerable hardship for many produc-
ers and consumer groups.
The pursuit of the second and third policies listed above, also served
the first and most important objective. The solution of the problem of
unemployment and of the special slump in the heavy industry and
in eastern agriculture helped greatly to strengthen the power of the
regime in Germany. The expansion of production —particularly of
foodstuffs and steel —strengthened the power of the regime exter-
nally. This aspect of the German economic system appeared increas-
ingly in the foreground and, in its later phases, overshadowed all
other considerations. Even in periods of ‘peace,’ the German economy
was a war economy.
This supreme aim of making the German state as powerful as possi-
ble in a short time imposed several conditions upon the concrete poli-
cies to be pursued and upon the methods to be applied. In the light of
the guiding objective, every waste of possibly employable resources is
a failure from the point of view of providing the necessary war equip-
ment. Resources must be exploited to an abnormally high degree —
even if political pressure is necessary.
177
after 1932 lies, of course, in the high rate of public investment financed
by credit expansion.
A second particular feature of the Hitler prosperity was the degree
to which investment, as compared with consumption, was expanded.
This was certainly made possible by the fact that at the beginning of
the process there existed huge unused productive capacities in these
investment industries. But those capacities could be used only if some
new fields of investment were opened up or created. This was done
precisely by the re-armament program with its cumulatively increas-
ing pace. However, ordinarily the expansion of the investment good’s
industries is checked by the expansion of the wage-earning with its
consequent expenditure on consumers’ goods and increase in interest
rates. This reaction is highly undesirable from the point of view of any
policy which is interested in the prevention of slump or even of a slow-
ing down in the rate of expansion. The Hitler regime had to expect
the emergence of such a situation when it embarked upon a policy of
rapid expansion for the purpose of re-armament. Therefore especially
strong checks upon the expansion of consumption had to be intro-
duced. This became the major problem of German economic policy
and almost all repressive and directive control measures in Germany
served primarily this one purpose: to restrict consumption as far as
possible and to put as many productive resources as possible in the
service of war preparations. This was one of the major functions of the
control of imports, of investments, of prices, of capital markets and
interest rates, and finally of the most important means of all: the keep-
ing down of the wage rates. On the whole, the policy of keeping down
consumption was highly successful, although the intentions of the
government could not be realized completely. There were important
increases in prices, if only because of deteriorations in quality. It was
imperative for the whole policy of investment expansion to prevent
any considerable increase of nominal wage rates beyond their depres-
sion level. This wage policy implied a tremendous pressure upon the
working class. Hitler would not have been able to carry through his
policy with a working class whose economic organizations were still
functioning. The fact that Hitler did not
180
that in 1933 at least this was the most important, the almost only
visible and the only professed aim of National-Socialist policy. This
objective was emphasized in the beginning, because the other two
objectives were either not useful for propaganda or not as yet ripe
for realization. In order to stimulate re-employment, the Hitler gov-
ernment used many devices already utilized by former governments
and put the pressure of the party machine behind this campaign. The
first period was one of mere makeshift. For a time this system was
reasonably successful, but when it reached its limit, the Hitler regime
was ready to give the general program of re-employment a specific
object: re-armament. From that time on, the aim of re-employment
becomes practically identical with the objective of war preparation.
Under the conditions prevailing in Germany, the great difficulties of
the program of re-employment pure and simple would have led the
existing system in the direction of economic and political national-
ism. After a period of makeshifts it would have become imperative
either to wait until world economy recovered —a solution which
from a political and psychological viewpoint was unbearable —or to
organize all efforts of re-employment in some ‘plan.’ As soon as the
regime decided to make a more systematic and co-ordinated attack
upon the problem of unemployment, it became indispensable to give
a clear direction to the ‘plan’: re-employment for what? Because of
the hardship implicit in such a policy, the main objective had to be
popular. The easiest way out was a nationalist policy. This choice was
supported by the very implications of an independent policy of recov-
ery itself.
In order to make the program for re-employment popular it was
necessary only to point to the unused material resources which had to
be re-employed as well as the unemployed workers. Unemployment
of both men and equipment was especially serious in the heavy indus-
tries. Did not these industries and their allies, the large scale farms,
utilize the resources of the ‘national soil’? Thus the program of re-
employment became dovetailed not only with re-armament but also
with the salvation of those sectors of German economy which had
been dominant for so many decades.
183
III
the German economy, all idyllic schemes built around peasants and
craftsmen have become impossible of realization. Gigantic factories
are so to speak springing out of the ground, armies of specialized
laborers are feverishly busy ten and more hours a day and, at least
since 1935, the army demanded as a military necessity that industry
be so mechanized that women and children would be able to replace
skilled workers needed for the armed forces. Thus National-Socialism
has not retraced the path of the Industrial Revolution of the nine-
teenth century. It has rather sought to accelerate it.
Is the type of rationalized, impersonal and complex system neces-
sitated by industrialization compatible with a ‘communal’ ideology?
And what are the causes and consequences of this experiment which
National-Socialism has announced itself ready to carry out?
The National-Socialists are no academic theorists. In order to prove
the correctness of their communal ideology, they point to their suc-
cess. They claim that they have created new communal forms dur-
ing their struggle for power. For them the SA (Storm Troopers)
and the SS (Blackshirts), the Labor Service and the Hitler Youth are
great manifestations of the new communal ideology. The National-
Socialists claim to have proved (and this is one of their supreme dog-
mas) that a ‘communal’ ideology and a ‘communal’ social structure
can be had if the real will to have it exists. If this was possible in the
case of the SA, the SS and the HJ (Hitler Youth) why should it not
also be possible outside of and beyond such political organizations?
Thus the National-Socialists have tried to reorganize non-political
groups —the family, the farm, the factory, the apartment house, the
business and craftsmen groups along the lines of the militant political
organizations.
Once the spirit of the SA has penetrated the workshops and facto-
ries with a ‘communal sense,’ the aims of National-Socialism will have
been achieved. Every social, group will then become a community
and constitute as such a source of thinking according to the concrete
theory of order. The above ideas form the nucleus of the social theory
of National-Socialism. The most important
191
munity but he enters the fraternity on his own decision. The com-
munity aims at the preservation of traditional values, while a frater-
nity unites those individuals who have been freed from all traditional
norms. The community exists even when the individual member is
not fully conscious of his membership in the group, but member-
ship in the fraternity involves an act of self-conscious decision. The
community lives by traditional values and transmits them to the next
generation. The Bund, made up of the organized followers of a char-
ismatic leader, is (like charism itself) transitory, and unstable. The
community is a stable and continuous formation. Like charism, the
fraternity stands in contrast to the matter-of-fact routines of daily life.
As soon as the authority of the charismatic leader becomes routinized
and continuous, the ‘fraternity’ ceases to be a fraternity. Routinization
leads to the dissolution of the fraternity or to its transformation, either
into society or community.
Friedrich Schiller’s Die Räuber provides a classical description of
the ‘fraternity.’ Around Karl Moor, the leader, whose career has been
disrupted, equally uprooted comrades assemble in order to transform
the world. But at bottom, they do not want a revolution in the struc-
ture of society. They do not attack the present order; rather they com-
plain that other people and not they are in power within this order.
They desire only the supplanting of the ruling élite by a new élite
formed from their fraternity. Unfavorable circumstances compelled
Karl Moor’s fraternity to take refuge in the Bohemian forests and
there to lead the life of robbers. Under more favorable circumstances,
Moor would have attained political dominance; his followers would
have become the new élite, divided up the spoils, but would have left
the structure, of society unchanged. The successful charismatic revo-
lution is the ideal type of the circulation des élites.
Shortly after their accession to power, the National-Socialists made
a genuine attempt to reorganize the factories in accordance with the
model of the Storm Troops. By roll-calls, daily flag ceremonies and
evenings of comradely entertainment, they attempted to engender the
spirit of the SA in the factories. The experiment failed, however, after
a short time. Werner Mansfeld,
194
has been dropped. Instead the vanguard within the factory is formed
to represent a fraternity. Dr. Ley left nothing unsaid when he outlined
the tasks of the Shop Troops: ‘Should Germany once more have to
undergo a severe trial of strength and should this process lead to seri-
ous disturbances in the factories as it did during the last war … every
factory must be organized so that it will itself be able to take the meas-
ures necessary for the creation of order.’493 The ‘soldierlike nucleus
of the factory community’ is intended to suppress any independent
expression of the workers’ demands and to ‘create order.’ Shop Troops
are organizations for the suppression of strikes, but, says Dr. Ley, ‘the
Shop Troop must be prevented by all means from becoming —if not
at present, then perhaps in fifty or a hundred years —a class-troop.’494
Dr. Ley expressly rejects the possibility of organizing the Shop Troops
of the different enterprises into large associations. On the contrary,
‘the factory is the center of the Shop Troop. Hence the Shop Troops
cannot constitute a hierarchical organization embracing all the Shop
Troops in a city, or a district, or in the Reich as a whole.’495
In his description of the Shop Troops Dr. Ley stresses the differ-
ences between them and the other quasi-military organizations of the
SA and SS. This structure of the Shop Troops differs also from those
of the estate organization of the non-manual occupations. In the
various entrepreneurial and professional groups, no objections have
been raised against organizations transcending local boundaries. But
Dr. Ley and the National-Socialist leadership have deliberately sought
to prevent such translocal organization of the Shop Troops in order to
avoid the danger of distracting these groups whose class homogene-
ity is pronounced from their proper tasks. The Shop Troops recruit a
small group from within the whole force of the plant to counteract any
defections on the part of the rest of the working force. Without this
institution, Dr. Ley believes that the factories would remain a poten-
tial source of disorder. And the dangers would only be re-introduced
if translocal organization of the Shop Troops were allowed. Thus all
that Dr. Ley has done is to confer the honorable title of community on
a strike-breaking agency. The Shop Troops are noth-
196
all the more anxious is his zeal and all the greater his function.497
Pfenning has stated with unusual directness that the function of
all Fascist undertakings is ‘to galvanize with the aid of a strong state
the tradition of bourgeois-capitalistic class society and to preserve
this order by means of state interference at those points where dif-
ficulties arise.’498 Pfenning’s view is by no means rare in the National-
Socialist literature. Neese goes so far as to infer a general law from
this common tendency of all Fascist revolutions by saying that ‘today
every revolutionary movement must be concerned with preserving
the integrity of the economic system.’499 Theoretically competent
National-Socialists are well aware of the social character of Fascism;
they do not deny that it is the political structure appropriate to the
imperialistic phase of capitalism. Pfenning remarks: ‘Community is
a cleverly designed necessity for the maintenance of certain social
relationships.’500 According to him, the German community, which is
constituted by ‘blood’ and not by any rational concept has, thanks to
its racial basis, a ‘natural system of ranks’ the nature of which entitles
it to acceptance.
The refutation of the opinion that certain economic and social struc-
tures have been permeated with communally oriented attitudes does
not settle this question as to the extent to which National-Socialism
has succeeded in fusing the German people into an ethnic commu-
nity (Volksgemeinschaft).
At this point, we should recall what we said earlier about one of the
primary conditions for the triumph of National-Socialism, namely,
the successful refutation of utopian pacifism which the German
parties of the Left espoused after the war. National-Socialists chal-
lenged the faith in salvation through international order as repre-
sented by the rational League of Nations and proposed instead the
dogma that the resurrection of the Fatherland could be attained
only by the union of all Germans against the common enemy. The
idea of the ethnic community undoubted-
198
ly arose out of the defeat in the last war, and the subsequent misery,
and out of the conscious opposition to foreign powers.
This connection between belief in an external threat and the awak-
ening of domestic solidarity is not a chance phenomenon. ‘Only in
cases of a common danger can communal action be expected with
some degree of probability.’501 At the same time it should be remem-
bered that ‘no community is so strong as to be indissoluble.’502 It is
obvious that if belief in external threats is the principal source of
communally oriented attitudes, internal cleavages will increase as this
belief diminishes.
Communally oriented attitudes are accorded the status of absolute
values in National-Socialist Germany. The National-Socialist Party
views the preservation of these values as its chief task. However, if
devotion to the community is immediately dependent on the magni-
tude of an actual or imagined threat, it is possible to explain the para-
dox which we will call the ‘political scissors’ of National-Socialism,
i.e., the more successful the foreign policy of National-Socialism, the
greater the contradiction between the National-Socialistic domestic
policy and the international position of Germany.
If the ethnic community has an absolute value in itself, then it is
dependent upon the existence of an enemy. If communally oriented
attitudes are intensified by the existence of an actual or imagined
enemy, then the preservation of the ethnic community is favored by
the existence of an enemy whose hostility endures as long as the eth-
nic community itself. It does not matter whether this enemy is real or
imaginary. Nor is it of much importance who the enemy is. The mere
fact that an enemy exists is the important point. The continuous exist-
ence of an enemy is a substitute for rational goal.503 ‘War is the source
of everything. The form of the state as a whole is determined by the
nature of the total war … the total war, however, obtains its meaning
from the total enemy.’504
Adolf Hitler expressed the same idea at the Nürnberg Party
Congress in September 1935: ‘Driven by savage impulses, peoples and
races fight without knowing the objectives for which they
199
Abbreviations
210 Abbreviations
HGB. Handelsgesetzbuch
Höchst. R. Rspr. Höchstrichterliche Rechtsprechung
H. Z. Historische Zeitschrift
Jahrb. f. Entsch. der freiw. Gbk. Jahrbuch für Entscheidungen der
freiwilligen Gerichtsbarkeit
Jgdr. u. Jgdwohlf. Jugendrecht und Jugendwohlfahrt
J. W. Juristische Wochenschrift
Kart. Rundsch. Kartellrundschau
Mbl. f. i. Verw. Ministerialblatt für innere
Verwaltung
N. F. Neue Folge (New Series)
OVG. Entscheidungen des Preussischen
Oberverwaltungsgerichts
PGS. Preussische Gesetzessammlung
RAG. Entscheidungen des
Reichsarbeitsgerichts
Reger Entscheidungen der Gerichte
und Verwaltungsbehörden auf
dem Gebiete des Verwaltungs-
u. Polizeistrafrechts, begründet
von Reger
RGBl. Reichsgesetzblatt
RGSt. Entscheidungen des Reichsgerichts
in Strafsachen
RGZ. Entscheidungen des Reichsgerichts
in Zivilsachen
R. Verw. Bl. Reichsverwaltungsblatt
Verkehrsr. Abh. Verkehrsrechtliche Abhandlungen
V. B. Völkischer Beobachter
Ztschr. f. ausl. öff. u. Völkerr. Zeitschrift für ausländisches
öffentliches und Völkerrecht
Ztschr. f. Beamtenr. Zeitschrift für Beamtenrecht
Ztsch. f. dtsch. Kult. Philos. Zeitschrift für deutsche
Kulturphilosophie
Ztsch. f. d. ges. Staatsw. Zeitschrift für die gesamte
Staatswissenschaft
211
Notes
PA RT I
Chapter I
1 The decree is reproduced in the appendix.
2 The expression ‘sphere’ is not exact and is merely used provisionally.
3 Regarding the opportunities for revolutions and coups d’état in pres-
ent-day society, see Max Weber, Wirtschaft und Gesellschaft (Tübingen,
1922), p. 670.
4 The distinction between ‘mandatory’ and ‘absolute’ dictatorship was
created by Carl Schmitt in Die Diktatur (München, 1921). Our use of
these terms is identical with that of Carl Schmitt.
5 RGSt 59, 187-8.
6 Garde v. Strickland (1921), quoted in D. L. Keir and F. H. Lawson, Cases
in Constitutional Law (Oxford, 1928), p. 373.
7 The assassination of Röhm, Schleicher and many other opponents of
the Hitler government.
8 Reinhard Heydrich, ‘Die Bekämpfung der Staatsfeinde’ Dtsch. Rw.
Band I, Heft 2, p. 97.
9 Oberlandesgericht Karlsruhe, June 25, 1936 (J. W. 1936, p. 3268).
10 Oberlandesgericht Hamburg, March 31, 1936 (D. J. Z. 1936, p. 771).
11 Ib.
12 Ib.
13 Landesarbeitsgericht Berlin, November 17, 1934 (D. Jstz. 1935, p. 73).
14 PGS. 1933, pp. 122, 413; 1936, p. 21.
15 We find certain technical differences in various statutes, caused by
the fact that the police law is state law (Landesrecht) and that it must
be adjusted to the administrative laws of the states (Länder). The legal
functions of the Gestapo are dependent on the police laws of the sev-
eral states. The same is true with regard to the review of actions of the
Gestapo by the administrative courts.
16 John Neville Figgis, Studies of Political Thought from Gerson to Grotius,
1414-1625 (Cambridge, 1907), p. 86.
17 Carl Schmitt, Die Diktatur (Von den Anfängen des modernen
Souveränitätsgedankens bis zum proletarischen Klassenkampf) (2nd.
ed. München 1928) p. 59, note 3. This book is the first of many scholarly
and literary efforts to ‘exploit’ the practical possibilities of Art. 48 of the
Weimar Constitution.
18 Samuel Rawson Gardiner, The Constitutional Documents of the Puritan
Revolution (Oxford, 1899), p. 105.
212
212 Notes
19 J. R. Tanner, English Constitutional Conflicts of the Seventeenth Century
(Cambridge, 1928), p. 78.
20 Cf. Justice Breese in Johnson v. Jones (44 Ill. 166) who characterized
emergency as something that ‘placed the dearest rights of the citizen
at the mercy of a dominant party who have only to declare the “emer-
gency” which they can readily create, pretext for which, bad men are
keen to find and eager to act upon.’
21 Mittermaier, ‘Die Gesetzgebung über Belagerungszustand, Kriegsrecht,
Standrecht und Suspension der Gesetze über persönliche Freiheit,’
Archiv für Criminalrecht, 1849, p. 29.
22 Ib.
23 Ruthardt, Entwurf eines Gesetzes über das Verfahren in Strafsachen
(Regensburg, 1849), p. 211.
24 ‘In order to cope with rebellion, sabotage and similar politically sterile
outbreaks … any government would have resort to martial law… . The
firm traditions of politically more mature nations which are less easily
intimidated have been maintained in such a situation. In such nations
the people have kept their heads overcoming violence by violence while
remaining sensible enough to seek to eliminate the tensions which
resulted in the outburst, above all restoring all guarantees of liberty as
soon as the emergency is over and remaining uninfluenced by the revo-
lutionary events in their approach to other questions of government.
We (Germans) may expect with certainty that the representatives of the
old order of the unchecked bureaucracy … will exploit every syndicalist
Putsch … however insignificant, to exert pressure on the “weak nerves”
of the lower middle classes. The reaction to this will show whether the
German nation has achieved political maturity. We may well despair of
our political future if they should be successful, although unfortunately
past experience indicates that such a success is entirely in the realm of
possibility.’ ( Max Weber, ‘Parlament und Regierung im neugeordne-
ten Deutschland’ in Gesammelte politische Schriften, München, 1921,
p. 223).
25 Walther Hamel, in Frank, Deutsches Verwaltungsrecht (München,
1937), pp. 387, 394.
26 Ib.
27 Walther Hamel, ‘Die Polizei im neuen Reich,’ Dtsch. Recht, 1935, p. 414.
28 See note 25.
29 Sondergericht Hamburg, March 15, 1935 (Dtsch. R. Z. 1935, p. 553).
30 The Eighteenth Brumaire of Louis Napoleon (translated by Daniel De
Leon), 3rd edition (Chicago, 1913) p. 61.
31 Carl Schmitt, Legalität und Legitimität (München, 1932), pp. 93-4.
32 A historically correct analysis of the events of 1933 is to be found
only in one National-Socialist document. A decision of the Appellate
213
Notes 213
Court of Berlin of November 1, 1933 (D. Jstz. 1934 p. 64) stated that
‘the Decree of February 28, 1933, by suspending fundamental rights,
deliberately creates an emergency situation for the purpose of realizing
the National-Socialist state.’
33 Reichsgericht, October 22, 1934 (RGZ. 145, p. 367).
34 Ernst Huber, in a comment on a decision of the Sondergericht
Darmstadt, March 26, 1934 (J. W. 1934, p. 1747).
35 Sondergericht Darmstadt, March 26, 1934 (J. W. 1934, p. 1747).
36 Landgericht Dresden, March 18, 1935 (J. W. 1935, p. 1949).
37 Reichsgericht, September 24, 1935 (J. W. 1935, p. 3377).
38 Preussisches Oberverwaltungsgericht, May 27, 1936 (J. W. 1936,
p. 2277). [Cf. Preussisches Oberverwaltungsgericht, April 17, 1935 (J.
W. 1935, p. 2676)].
39 Ib.
40 Published in Mbl. f. i. Verw. 1933, p. 233.
41 Kammergericht, May 31, 1935 (Dtsch. R. Z. 1935, p. 624).
42 Reichsarbeitsgericht, October 17, 1934 (J. W. 1935, p. 378). It is of con-
siderable interest to note that at about the same time the Supreme
Court of the United States was called upon to decide whether, in deal-
ing with a great national crisis, a constitutional agency can lay claim to
extra-constitutional powers owing to the existence of an emergency.
Chief Justice Hughes denied this in the Schlechter case in words which
have already become classical: ‘Extraordinary conditions may call for
extraordinary remedies. But the argument necessarily stops short of
an attempt to justify action which lies outside the sphere of constitu-
tional authority. Extraordinary conditions do not create or enlarge
constitutional powers.’ Schlechter v. United States, 295 US 495, 528; May
27, 1935.
43 Walther Hamel, in Frank, Deutsches Verwaltungsrecht (München,
1937), pp. 386-7.
44 Sondergericht Hamburg, March 15, 1935 (Dtsch. R. Z. 1935, p. 553; also
quoted in J. W. 1935, p. 2988).
45 Kammergericht, July 12, 1935 (R. Verw. Bl. 1936, p. 61).
46 Ib.
47 Kammergericht, March 5, 1935 (D. Jstz, 1935, p. 1831).
48 Ib.
49 Reichsgericht, August 6, 1936 (Dtsch. Str. 1936, p. 429).
50 Carl Schmitt, Die Diktatur, (2d ed., München, 1928), p. 94.
51 Württembergischer Verwaltungsgerichtshof, September 9, 1936 (Dtsch.
Verw. 1936, p. 385).
52 Landgericht Berlin, November 1, 1933 (D. Jstz. 1934, p. 64).
53 Ullrich Scheuner, ‘Die Neugestaltung des Vereins-und Verbandsrechts’
D. J. Z. 1935, p. 666.
214
214 Notes
54 The limitations of the police power are set forth in § 14 of Preussisches
Polizeiverwaltungsgesetz (PGS. 1931, p. 77). They are taken over almost
literally from the Allgemeines Preussisches Landrecht of 1794 and,
owing to their acceptance by the courts and by custom, have prevailed
in Germany for many decades.
55 Preussisches Oberverwaltungsgericht, January 10, 1935 (R. Verw. Bl.
1935, p. 923).
56 Mbl. f. i. Verw. 1933, p. 233.
57 See Reichsgericht, January 23, 1934 (J. W. 1934, p. 767).
58 Ludwig Eickhoff, ‘Die Preussische Geheime Staatspolizei,’ Dtsch. Verw.
1936, p. 91.
59 See note 51.
60 Ib.
61 Ib.
62 Ernst Swoboda, ‘Das Protektorat in Böhmen und Mähren,’ R. Verw. Bl.
April 2, 1939, pp. 281-4.
63 Badischer Verwaltungsgerichtshof, January 11, 1938 (Bad. Verw. Ztscbr.
1938, p. 87). Inasmuch as the courts of Baden at this time still claimed
competence in reviewing the actions of the police, the decision of the
administrative court has a definite historical significance, for it is the
last decision in which a German administrative court reviewed politi-
cal acts by the police authorities. (Since that time Baden has followed
the example of Prussia and of the other German states).
64 Ib.
65 Ib.
66 Dannebeck deals with this question in Frank, Deutsches
Verwaltungsrecht (München, 1937), p. 307. He condemns the review of
political measures with reference to abuse or arbitrariness. (Cf. Lauer in
J. W. 1934, p. 2833).
67 Oberlandesgericht Braunschweig, May 29, 1935 (Höchst. R. Rspr.
36, 98).
68 Regina v. Nelson & Brand. (Charge of the Lord Chief Justice of England
to the Grand Jury at the Central Criminal Court in the case of the
Queen against Nelson & Brand. 2nd ed., London, 1867, p. 86.)
69 Field in ‘ex parte Milligan’ 1864, 4 Wallace 2,35.
70 Carl Schmitt, Politische Theologie (München, 1922), p. 13.
71 Ministerialdirigent und SS- Oberführer Dr. Werner Best in D.
A. Z. July 1, 1937, (reprinted in Frank, Deutsches Verwaltungsrecht,
München, 1937).
72 Preussisches Oberverwaltungsgericht, October 25, 1934 (R. Verw. Bl.
1935, p. 458).
73 Preussisches Oberverwaltungsgericht, May 2, 1935 (R. Verw. Bl. 1935, p. 577).
74 PGS. 1933, p. 41.
215
Notes 215
75 This view has been upheld by the Supreme Administrative Court of
Prussia in its decision of May 23, 1935 (J. W. 1935, p. 2670), which explic-
itly denied that the political character of a police order was in itself suffi-
cient to exclude review. The Prussian Supreme Court (Kammergericht)
in decisions of May 3, 1935, and January 9, 1936, expressed the same
view. (D. Jstz. 1935, p. 1831; J. W. 1936, p. 3187).
76 Gesetz über die Freizügigkeit, November 1, 1867 (BGBl. 1867, p. 55).
77 Preussisches Oberverwaltungsgericht, December 5, 1935 (OVG.
97, 103).
78 Gesetz über die Geheime Staatspolizei, February 10, 1936 (PGS.
1936, 21).
79 Preussisches Oberverwaltungsgericht, March 19, 1936 (J. W.
1936 p. 2189).
80 PGS. 1936, No. 6.
81 See note 79.
82 Cf. Dtsch. Verw. 1936, p. 318 and R. Verw. Bl. 1936, p. 549.
83 Preussisches Oberverwaltungsgericht, November 10, 1938 (J. W. 1939,
p. 382).
84 Ib.
85 See Preussisches Oberverwaltungsgericht, December 15, 1938 (R. Verw.
Bl. 1939, p. 544).
86 The first decision of this type was rendered by the District Court
(Landgericht) of Tübingen on January 25, 1934 (J. W. 1934, p. 627)
which refused to invoke the provisions of the poor law in the case of
a man wanting to sue the state for unjust imprisonment in a concen-
tration camp. It held ‘that the state cannot set aside actions which it
has found politically necessary.’ Of greater significance is the deci-
sion of the Supreme Administrative Court of Hamburg (Hamburger
Oberverwaltungsgericht) of October 7, 1934 (R. Verw. Bl. 1935, p. 1045).
The political police had dissolved a Bürgerverein of mixed Aryan and
Jewish membership. The court refused to hear the appeal of the associa-
tion, declaring that its dissolution was a political act and, accordingly,
not subject to review.
87 See note 78.
88 Gesetz über die Zulassung zur Rechtsanwaltschaft, April 7, 1933 (RGBl,
1933, p. 188).
89 Reichsgericht, May 6, 1936 (J. W. 1936, p. 2982).
90 BGB. §839; Reichsverfassung Art. 131.
91 Reichsgericht, March 3, 1937 (J. W. 1937, p. 1723).
92 Ib.
93 Deutsches Beamtengesetz, January 26, 1937 (RGBl. 1937, p. 39).
94 This interpretation of the importance of the Konflikt is opposed to the
opinion of the Reichsgericht, which interprets §147 only as a shift in
216
216 Notes
jurisdiction and not as a change in substantive law. Needless to say, we
cannot regard this interpretation as correct.
95 Gesetz über den Ausgleich bürgerlich- rechtlicher Ansprüche,
December 13, 1934 (RGBl. 1934, p. 1235).
96 Reichsgericht, September 7, 1937 (RGZ. 155, p. 296).
97 Ib.
98 Oberlandesgericht München, November 4, 1937 (Entsch. des KG. und
OLG. München 17, p. 273).
99 Ib.
100 Dr. Best, ‘Werdendes Polizeirecht’ Dtsch. Recht, 1938, p. 224.
101 V. B., July 5, 1935.
102 Landesarbeitsgericht Gleiwitz (Dtsch. Rpfl. 1936, p. 59).
103 Reichsarbeitsgericht, April 14, 1937 (J. W. 1937, p. 2311). Cf.
Landesarbeitsgericht München, July 31, 1937 (D. Jstz. 1937, p. 1159).
104 In a decision of the Supreme Administrative Court of Prussia
(Preussischer Oberverwaltungsgerichtshof) of June 29, 1937 (R. Verw.
Bl. 1937, p. 762), a parallel case dealt with the exclusion of a civil ser-
vant from the National-Socialist Party on his continued service as an
official. The prosecuting attorney contended that the exclusion of an
official from the National-Socialist Party necessitated his dismissal
from the public service. The Supreme Administrative Court did not,
however, share the view, but held that actions of the party cannot
have such far-reaching consequences unless they are supported by
legislation.
105 The Appellate Court (Oberlandesgericht) of Stettin, on March 25, 1936,
had granted damages to a plaintiff who had been injured by an auto-
mobile owned by the National-Socialist Party, although the defendant
argued that since the party was an institution the funds and purposes
of which were devoted to the public weal, it could not be ordered to
make payments to private persons (J. W. 1937, p. 241). A parallel case
was decided by the Reichsgericht on February 17, 1939 (R. Verw. Bl.
1939, p. 727).
106 Reichsarbeitsgericht, February 10, 1937 (RAG. 18, p. 170).
107 Carl Schmitt commenting on a decision of the Kammergericht of
March 22, 1935 (D. Jstz. 1935, p. 686) in D. J. Z. 1935, p. 618.
108 Oberlandesgericht Düsseldorf, July 10, 1935 (D. J. Z. 1935, p. 1123).
109 Reichsgericht February 28, 1936 (Höchst. R. Rspr. 1936, p. 900). This
decision was followed by several courts regarding various branches
of the National-Socialist Party [Hitler Youth Movement Decision,
Appellate Court of Dresden, January 31, 1935 (D. J. Z. 1935, p. 439);
National-Socialist Party Decision, Appellate Court of Zweibrücken,
December 24, 1934 (D. J. Z. 1935, p. 442)]. All these decisions indicate
that this theory has become an established rule.
217
Notes 217
110 Kompetenzgerichtshof June 27, 1936 (R. Verw. Bl. 1936 p. 860).
111 See note 93.
112 Preussisches Oberverwaltungsgericht, December 5, 1935 (OVG. 97,
p. 117).
113 ‘The Gestapo protect the community rather than the individuals and
are therefore exempt from the restraint imposed by the ordinary police
law.’ Lauer, ‘Die richterliche Nachprüfung polizeilicher Massnahmen,’
J. W. 1934, p. 832.
114 ‘The compelling and supreme necessity of strengthening the new state
requires the widest possible extension of discretion in political cases.’
Preussisches Oberverwaltungsgericht, October 24, 1934 (OVG. 94,
p. 138).
115 Wilhelm Frick, ‘Auf dem Wege zum Einheitsstaat’ Dtsch. Verw. 1936,
p. 334.
115a James I, Works (ed. of 1616) pp. 553 ff.
116 Quoted in J. R. Tanner, Constitutional Documents of the Reign of James I
(Cambridge, 1930), p. 19.
117 Reichsgericht, September 22, 1938 (J. W. 1938, p. 2955).
118 Ib.
119 Ib.
120 Heinrich Himmler, ‘Aufgaben und Aufbau der Polizei’ Festschrift für
Dr. Frick, edited by Pfundtner, Berlin, 1937, reviewed in Fft. Ztg., March
12, 1937; Hans Frank, ‘Strafrechts –und Strafvollzugs-Probleme’ Bl.
f. Gefk. 1937, Band 68, p. 259.
121 Ministerialdirigent und SS-Oberführer Dr. Werner Best (Gestapo) in
D. A. Z., June 22, 1938.
122 At this point we will not discuss whether this form of state may be
called a ‘Justice State’ (Gerechtigkeitsstaat) as suggested by Carl
Schmitt (see Frank, Nationalsozialistisches Handbuch für Recht und
Gesetzgebung, München, 1935, p. 6). It is, however, of interest that
Schmitt derives his concept from the Czarist Russian Gosudarstwo
Prwady.
123 HansThieme, ‘Nationalsozialistisches Arbeitsrecht’ Dtsch. Recht,
1935, p. 215.
124 Weimar, Attorney in Cologne in R. Verw. Bl. 1937, p. 479.
125 Hans Franzen, Gesetz und Richter; eine Abgrenzung nach den
Grundsätzen des nationalsozialistischen Staates (Hamburg,
1935), p. 11.
126 It may be noted that Franzen supplements Carl Schmitt’s concept of
‘politics’ with the propositions that the ‘friend-enemy’ dichotomy has
nothing to do with the ‘just-unjust’ dichotomy.
127 Preussisches Oberverwaltungsgericht, January 28, 1937 (Verkehrsr.
Abh. 1937, p. 319).
218
218 Notes
128 Gesetz gegen heimtückische Angriffe auf Staat und Partei und zum
Schutz der Parteiuniformen, December 20, 1934 (RGBl. 1934, p. 1269).
129 Dr. Crohne, ‘Die Strafrechtspflege 1936’ D. Jstz. 1937, p. 7-12.
130 Kammergericht, May 3, 1935 (D. Jstz. 1935 p. 1831).
131 See note 37.
132 Oberlandesgericht Kiel, November 25, 1935 (Höchst. R. Rspr. 1936,
p. 592).
133 Ib.
134 Oberlandesgericht München, January 27, 1937 (Jahrb. f. Entsch. der
freiw. Gbk., Band 15, p. 58).
135 See note 127.
136 Ib.
137 Oberlandesgericht Stettin, April 14, 1937 (J. W. 1937, p. 2212).
138 Criminal proceedings for tax evasion were instituted against the
attorney.
139 February 6, 1875 (RGBl. 1875, p. 23).
140 Reichsgericht, November 2, 1936 (J. W. 1937, p. 98).
141 Massfeller, Akademie Ztschr. 1937, p. 119.
142 See note 134.
143 Rudolf Sohm, Kirchenrecht (Systematisches Handbuch der Dt. Recht
swissenschaft, Band VIII) (München, 1923), p. 1.
144 Cf. Max Weber, Wirtschaft und Gesellschaft, (Tübingen, 1922),
p. 59, 396.
145 Ernst Forsthoff, Der totale Staat (Hamburg, 1933), p. 30.
146 Hermann Heller, Rechtsstaat und Diktatur (Tübingen, 1930), p. 19.
147 V. B., July 5, 1935; also formulated by Huber, ‘Die Verwirkung der
rechtsgenössischen Rechtsstellung im Verwaltungsrecht’ Akademie
Ztschr. 1937, p. 368, insofar as administrative law is concerned: ‘The
administrative authorities are not only entitled to act when explicitly
empowered to do so by statute but also upon demand of the unwritten
principle of the ethnic community.’
148 Reichsdienststrafhof, June 15, 1937 Ztschr. f. Beamtenr. 1937, p. 104.
149 Ib.
150 R. H. Tawney, Religion and the Rise of Capitalism (New York, 1926),
p. 161.
151 This relationship has been pointed out by Max Weber, General
Economic History (translation by Frank H. Knight, New York,
1927), p. 342, and by George Jellinek, Allgemeine Staatslehre (Berlin,
1900), p. 89.
152 The concept of the ‘agnostic state’ has been elaborated by the Fascist
theory of the state. In German theory it was developed by Carl
Schmitt, Staatsethik und pluralistischer Staat (Kant-Studien, 1931,
Band XXXV), pp. 28-42, especially p. 31.
219
Notes 219
153 Georg Dahm, ‘Verrat und Verbrechen’ Ztschr. f. d. ges. Staatsw. Band
95, p. 283, 288.
154 Dr. Diener, ‘System des Staatsverbrechens,’ Dtsch. Recht, Band IV,
pp. 322-29.
155 Reichsstrafgesetzbuch, May 15, 1871, RGBl. 1876, p. 40.
156 Sondergericht Hamburg, May 5, 1935 (J. W. 1935, p. 2988).
157 Roland Freissler, ‘Der Volksverrat (Hoch-und Landesverrat) im Lichte
des National-Sozialismus,’ D. J. Z. 1935, p. 907.
158 Georg Dahm, in a comment on a decision of the Reichsgericht. (J. W.
1934, p. 904).
159 Reichsgericht, September 8, 1938, (J. W. 1938, p. 2899) and October 27,
1938 (J. W. 1939, p. 29).
160 Oberlandesgericht München, August 12, 1937 (D. Jstz. 1938, p. 724).
161 Ib.
162 Volksgerichtshof, May 6, 1938 (D. Jstz. 1938, p. 1193); Kammergericht,
March 26, 1938 (D. Jstz. 1938, p. 1752). Detailed discussion of the prob-
lem by Mittelsbach (J. W. 1938, p. 3155), and Niederreuther (D. Jstz.
1938, p. 1752). The decision of the Kammergericht is not published.
Parts of the decision are quoted in Niederreuther’s article.
163 Carl Schmitt, ‘Die Diktatur des Reichspräsidenten nach Artikel 48 der
Weimarer Verfassung’; appendix to Die Diktatur, (2d ed., München,
1928) p. 248 (paper read on the meeting of the Vereinigung deutscher
Staatsrechtslehrer, 1924). This distinction goes back to Robespierre’s
speech in the Convention Nationale on December 3, 1792, when he
indicted Louis XVI with these famous words: ‘Vous n’avez point une
sentence à rendre pour ou contre un homme mais une mésure de salut
public à prendre, une acte de providence nationale à exercer.’
164 Joint opinion of James and Stephen on Martial Law with refer-
ence to the Jamaica Insurrection 1866, quoted in William Forsyth,
Constitutional Law, (London, 1869), appendix, pp. 551-563, especially
pp. 560-1.
165 Ib., especially p. 561.
166 Ib., especially p. 552.
167 One high- treason decision of the Oberlandesgericht Hamburg of
April 15, 1937 was apparently published by accident in Funkarchiv,
1937, p. 257.
168 Bayerischer Verwaltungsgerichtshof, May 8, 1936 (Reger, Band 37,
p. 533).
169 Sächsisches Oberverwaltungsgericht, December 4, 1936 (J. W. 1937,
p. 1368).
170 Reichsdienststrafhof, February 11, 1935 (Ztschr. f. Beamtenr. 1936,
p. 104).
171 Reichsgericht, February 17, 1938 (J. W. 1938, p. 1018).
220
220 Notes
172 Alfred Rosenberg, ‘Die nationalsozialistische Weltanschauung und
das Recht,’ D. Jstz. 1938, p. 358.
173 Sermon on King James’ birthday, 1621: The Works of William Laud,
D. D., ed. Wm. Scott, vol. I, London 1847, p. 28.
174 Landgericht Hamburg, May 6, 1936 (Jgdr. u. Jgdwohlf. 1936, p. 281).
The above-mentioned matters belong to the jurisdiction of the lower
courts. We quote therefore decisions of the district and municipal
courts concerning the relations of children and parent.
175 Amtsgericht Berlin- Lichterfelde, April 15, 1935 (Das Recht, 1935,
No. 8015).
176 Amtsgericht Hamburg, April 15, 1935 (Das Recht, 1935, No. 8016).
177 Amtsgericht Frankfurt Main-Höchst, May 4, 1937 (Dtsch. Recht, 1937,
p. 466).
178 Amtsgericht Wilsen, February 26, 1938 (J. W. 1938, p. 1264).
179 Landgericht Zwickau, March 14, 1937 (J. W. 1938, p. 2145).
180 Sondergericht Breslau (Dtsch. R. Z. 1935, p. 554).
Chapter II
181 Carl Schmitt, Politische Theologie (2d. ed., München, 1934), p. 1.
182 Hermann Reuss, in a comment on a decision of the Prussian Supreme
Administrative Courts (Preussischer Oberverwaltungsgerichtshof ) of
June 30, 1936 (J. W. 1937, pp. 422-3).
183 At this point the American reader will probably recall the famous pas-
sage of Justice Stone’s dissenting opinion in United States v. Butler (297,
US 79). Justice Stone defined the supremacy of the courts over legislative
and administrative actions as follows: ‘…the other is that while uncon-
stitutional exercise of power by the executive and legislative branches
of the government is subject to judicial restraint, the only check upon
our exercise of power is our own sense of self-restraint.’ Underlying this
statement is the insight that in every legal and constitutional system
the old problem, quis custodiet custodem? can be answered only by an
appeal to conscience. The parallel with the problem of the Dual State
should not be extended further, since the question discussed in the
American decision deals with the relationship of governmental bodies
within the framework of legal order, while the line which separates the
Normative and the Prerogative States is the borderline between legal
order and lawlessness.
184 Sächsisches Oberverwaltungsgericht, November 25, 1938 (R. Verw. Bl.
1939, p. 103).
185 Ib.
186 Bürgerliches Gesetzbuch, August 18, 1896. RGBl. 1898, p. 195.
221
Notes 221
187 Preussisches Oberverwaltungsgericht, December 15, 1938 (R. Verw.
Bl. 1939, p. 544).
188 Heinrich Herrfahrdt, ‘Politische Verfassungslehre,’ Arch. f. Rechts –
u. Soz. Phil., Band XXX, p. 110.
189 Roland Freissler, ‘Totaler Staat? Nationalsozialistischer Staat!’ D. Jstz.
1934, p. 44; Cf. Otto Koellreutter, ‘Leviathan und totaler Staat,’ R.
Verw. Bl. 1938, pp. 803-7; Alfred Rosenberg in V. B. of January 9 & 10,
1934, and Ernst Huber, ‘Die Totalität des völkischen Staates,’ Die Tat,
1934, p. 60.
190 Jacob Burckhardt. Weltgeschichtliche Betrachtungen (Kröner’s
Taschenausgabe, Band 55, Leipzig), p. 197. Cf. Hegel, Die
Verfassung Deutschlands (Lasson, Hegels Schriften zur Politik und
Rechtsphilosophie, Leipzig, 1913), p. 28.
191 Erich Kaufmann, Die clausula rebus sic stantibus und das Völkerrecht
(Tübingen, 1911), p. 136.
192 Carl Schmitt, Der Hüter der Verfassung (Tübingen, 1931), p. 79.
193 Ernst Jünger, ‘Die totale Mobilmachung,’ in Krieg und Krieger (edited
by Ernst Jünger, Berlin 1930).
194 Dt. Bergw. Ztg., November 24, 1932 (partly reprinted in Europäische
Revue, February 1933).
195 Ib.
196 Ernst Huber, ‘Die Rechtsstellung des Volksgenossen erläutert am
Beispiel der Eigentumsordnung,’ Ztschr. f. d. ges. Staatsw. 1936, p. 452.
197 Werner Best, Jahrbuch der Akademie für deutsches Recht, 1937, p. 133.
198 Ib.
Chapter III
199 Carl Bilfinger, ‘Betrachtungen über politisches Recht,’ Ztschr. f. ausl.
öff. u. Völkerr., Band I, pp. 57-76.
200 Bilfinger demonstrated that the international arbitration treaties of
the post-war period considered the political element insofar as they
excluded questions touching on the existence of states from their
scope. Those questions were segregated and relegated to the extra-
legal field. Wherever existential questions were made the object of
normative regulations, Bilfinger argued that such treaties were made
among unequal parties and involved the renunciation of the principle
of equality.
201 Carl Schmitt, Nationalsozialismus und Völkerrecht (Schriften der
Hochschule für Politik, Heft ix, Berlin 1934).
202 Carl Schmitt, ‘Die Kernfrage des Völkerbunds,’ Schmoller’s Jahrbücher,
Band 48, p. 25.
222
222 Notes
203 This structural identity between National- Socialist domestic law
and international law abolished the dualism which had existed in
pre-war Germany between the domestic legal system, dominated by
the Rule of Law, and the system of international relations which was
completely governed by power politics. Cf. Hermann Heller, ‘Staat,’
in Handwörterbuch der Soziologie (Stuttgart, 1931), Band II, p. 610;
Karl Mannheim, Rational and Irrational Elements in Contemporary
Society. L. T. Hobhouse Memorial Trust Lectures No. 4, delivered on 7
March 1934 (London, 1934), p. 34.
204 Hans Kelsen always opposed this doctrine and pointed out the dangers
connected with this concept of government. [ Allgemeine Staatslehre
(Berlin, 1925), p. 254].
205 Otto Mayer, Deutsches Verwaltungsrecht (Systematisches Handbuch
der Deutschen Rechtswissenschaft, Teil VI,) 3rd ed. (München, 1924)
Band 1, p. 8.
206 Carl J. Friedrich, ‘Separation of Powers,’ in Encyclopaedia of the Social
Sciences, ed. by Seligman and Johnson, vol. 13 (New York, 1934),
pp. 663-6.
207 John Locke, Two treatises of civil government, §158.
208 Ernst Wolgast, ‘Die auswärtige Gewalt des Deutschen Reiches unter
besonderer Berücksichtigung des Auswärtigen Amtes’ (Arch. f. öff.
Recht, N. F. Band V, p. 96); Friedmann ‘Geschichte und Struktur der
Notstandsverordnungen,’ Kirchenrechtliche Abhandlungen, 1905, p. 41.
209 ‘A speech in behalf of the Constitution against the Suspending and
Dispensing Prerogative. House of Lords, Dec. 10, 1766.’ (Published in
Hansard, Parlamentary History of England, (London 1813) vol. XVI,
pp. 251-313, especially pp. 265-6.)
210 ‘By executive power we mean no reference to those powers exercised
under our former government by the Crown as of its prerogative.’
The executive power, according to Jefferson, comprises ‘those powers
which are necessary to execute the laws (and administer the govern-
ment) and which are not in their nature either legislative or judiciary.’
( Thomas Jefferson, Notes on the State of Virginia, Richmond, 1853,
p. 230, appendix).
211 Ib., p. 137.
212 Metternich, Nachgelassene Schriften, Band VIII, p. 114. This letter
is extremely significant because its author had wielded tremendous
political powers during more than forty years as Chancellor of Austria
and had been overthrown by a political revolution only a few weeks
previously.
213 Rudolf Smend, Verfassung und Verfassungsrecht (München, 1928); Die
politische Gewalt im Verfassungsstaat und das Problem der Staatsform
(Festgabe für Wilhelm Kahl) (Tübingen, 1923).
223
Notes 223
214 Rudolf Smend, Verfassung und Verfassungsrecht, pp. 97-98.
215 Carl Schmitt, Verfassungslehre (München, 1928), p. 131.
216 We are now able to correct our preliminary formulation to the effect
that the political sphere is a ‘sector of the state.’ Cf. note 2, and Ernst
Huber, ‘Die Einheit der Staatsgewalt,’ D. J. Z. 1934, pp. 954-5.
217 See note 215.
218 A. V. Dicey’s statement (Law of the Constitution, 8th ed., p. 198,
London, 1926) that ‘the predominance of regular law is opposed to the
influence of arbitrary power and excludes the existence of arbitrari-
ness of prerogative or even wide discretionary authority’ insofar as it
referred to discretionary authority, was never accepted in Germany.
Cf. Harold J. Laski, ‘Discretionary Power,’ Politica vol. I, pp. 284-5.
219 Supreme Court of the U. S.: Myers v. United States 272 US 52, 293.
220 Hermann Reuss, in a comment on a decision of the Prussian Supreme
Administrative Court (Preussisches Oberverwaltungsgericht) of June
30, 1936, J. W. 1937, p. 423.
221 Ib.
222 Festschrift zum 60. Geburtstag des Staatssekretärs Schlegelberger
(Berlin, 1937), p. 43.
223 Hermann Goering, ‘Die Rechtssicherheit als Grundlage der
Volksgemeinschaft,’ D. Jstz. 1934, p. 1427.
224 Entrepreneurial freedom has always been restricted by exceptional
decrees introduced into the Gewerbeordnung of June 21, 1869 RGBl.
1900, p. 87.
225 Preussisches Oberverwaltungsgericht, August 10, 1936 (J. W. 1937,
p. 1032).
226 Ib.
227 Ib.
228 Ib.
229 Carl Schmitt, ‘Staatsethik und pluralistischer Staat,’ (Kant-Studien,
Band XXXV, p. 41).
230 Bayerischer Verwaltungsgerichtshof, June 5, 1936 (R. Verw. Bl. 1938,
p. 17).
231 Ib.
232 Ib.
233 August 18, 1896 (RGBl. 1898, 195).
234 Kammergericht, June 25, 1937 (Recht des Nährstandes 1938, No. 63 of
the decisions).
235 Reichsdisziplinarhof, August 30, 1938 (Dtsch. Verw. 1939, p. 281).
236 Ib.
237 Ib.
238 Oberlandesgericht Köln, February 1, 1935 (J. W. 1935, p. 1106).
239 June 7, 1909 (RGBl. 1909, 499).
224
224 Notes
240 Oberlandesgericht Hamburg, May 12, 1937 (D. Jstz. 1937, p. 1712).
241 Ib.
242 Reichsarbeitsgericht, April 25, 1936 (J. W. 1936, p. 2945).
243 January 20, 1934 (RGBl. 1934, 45).
244 This question is especially significant because one of the most impor-
tant features of the new penal law introduced by National-Socialism
is the authority granted to punish acts, not mentioned in the code, by
analogy with acts specified by the court as punishable. This change in
penal law does not apply to labor law.
245 Reichsehrengerichtshof, September 30, 1935 (Arb. R. S. Band 25, p. 89).
246 Werner Mansfeld, ‘Die soziale Ehre,’ Dtsch. Recht 1934, p. 125.
247 Reichsgericht, November 14, 1936 (D. Jstz. 1936, p. 1941).
248 Reichsgericht, December 2, 1936 (RGZ. 153, p. 71).
249 Cf. below, ‘The Legal Status of the Jews,’ pp. 89-96.
250 The discrepancy between the ‘authoritarian leader state’ and the ‘sov-
ereign central parliament’ as proposed in the program is obvious. Nor
have the trusts been abolished, etc.
251 Reichsgericht, March 10, 1934 (RGZ. 144, p. 106 [112]).
252 Zivilprozessordnung, May 17, 1898 (RGBl. 1933, 821).
253 Reichsstrafgesetzbuch, May 15, 1871 (RGBl. 1876, 40).
254 Reichsgericht, July 6, 1934 (RGZ. 144, p. 306 [310]).
255 Landgericht Breslau, November 18, 1934 (D. Jstz. 1935, p. 413).
256 As a matter of fact the Breslau decision was an exceptional one and
was reversed by the next higher court.
257 Paetzold, in a comment on the decision of the Landgericht Breslau. (D.
Jstz. 1935, p. 413).
258 Reichsgericht (Plenarentscheidung), November 16, 1937 (RGZ. 156,
p. 305).
259 Landgericht Hamburg (Dtsch. R. Z. 1935, No. 631).
260 Ib.
261 Oberlandesgericht München, August 10, 1936 (Reger 1937, p. 571).
262 Amtsgericht Berlin, August 12, 1936 (Jgdr. u. Jgdwohlf. 1936, p. 283).
263 Ib.
264 A closer examination of the decision shows that the ‘self-interest’ of
the Jewish parents consisted in the fact that even after they knew the
racial laws ‘the father still clung to the child.’ Actually the father had
no choice in the matter under the German Civil Code. In the name of
‘public interest,’ the court held that the father had to give up the child
while continuing to provide for its support.
265 Reichsgericht, July 12, 1934 (RGZ. 145, p. 1).
266 Gesetz zum Schutz des deutschen Blutes und der deutschen Ehre,
September 15, 1935 (RGBl. 1935, 1146). (So- called ‘Nürnberger
Gesetze.’)
225
Notes 225
267 Bürgerliches Gesetzbuch, August 18, 1896 (RGBl. 1898, 195).
268 This short period was set to prevent upsetting the family status of the
child and disturbance of the family peace over a long period of time.
269 Reichsgericht, November 23, 1937 (RGZ. 152, p. 390).
270 Ib.
271 Oberlandesgericht Naumburg, April 20, 1937 (Akademie Ztschr. 1937,
p. 587).
272 Massfeller, in a comment on the decision of the Oberlandesgericht
Naumburg (Akademie Ztschr. 1937, p. 587).
273 See p. 62 of this book.
274 This was a consequence of Dr. Schacht’s policy.
275 June 7, 1909, (RGBl. 1909, 499).
276 Reichsgericht, February 25, 1936 (RGZ. 150, p. 299). This decision was
overruled by the Reichsgericht on February 4, 1939 (J. W. 1939, p. 437).
277 Preussisches Oberverwaltungsgericht, November 21, 1935 (R. Verw.
Bl. 1936, p. 553; see Jugend und Recht, October 1936).
278 Ib.
279 Hamburger (Hanseatisches) Oberlandesgericht, May 4, 1937 (Hans.
R. u. Ger. Ztg. 1937, p. 216).
280 Ib.
281 Reichsgericht, March 30, 1938 (J. W. 1938, p. 1826).
282 Ib.
283 Reichsarbeitsgericht, June 2, 1937 (Arbeitsr. Entsch. 30, p. 153).
284 Reichsarbeitsgericht, March 20, 1937 (J. W. 1937, p. 2310).
285 Arbeitsgericht Saalfeld, July 13, 1937 (J. W. 1937, p. 2851).
286 Ib.
287 Gesetz über Mieterschutz und Mieteinigungsämter, June 29, 1926
(RGBl. 1926, 347).
288 Cf. Adami in J. W. 1938, p. 3217 and the official declaration of the Reich
Ministry of Justice: ‘Veröffentlichungen der Zeitschrift “Das Schwarze
Korps,”‘ (item 7) published in D. Jstz. 1939, p. 175.
289 Amtsgericht Berlin- Charlottenburg, March 9, 1938 (J. W. 1938,
p. 3173).
290 Amtsgericht Berlin- Schöneberg, September 16, 1938 (J. W. 1938,
p. 3045).
291 Landgericht Berlin, November 7, 1938 (J. W. 1938, p. 3242).
292 Ib.
293 Friedrich Schiller, ‘Letters upon the Aesthetic Education of Man,’
in Literary and Philosophical Essays (ed. by C. W. Eliot, New York,
1910), p. 229. ‘Der Mensch kann sich aber auf eine doppelte Weise
entgegengesetzt sein: entweder als Wilder, wenn seine Gefühle über
seine Grundsätze herrschen; oder als Barbar, wenn seine Grundsätze
seine Gefühle zerstören.’
226
226 Notes
294 Professor Kohlrausch, ‘Rassenverrat im Ausland’ Akademie Ztschr.
1938, p. 336, discussing a decision of the Grosser Strafsenat des
Reichsgerichts of February 23, 1938 (Akademie Ztschr. 1938, p. 349).
295 Reichsgericht, June 27, 1936 (Seufferts Archiv, Band 91, p. 65).
296 Ib.
297 Erlass des Reichswirtschaftsministers, Kart. Rundsch. 1936, p. 754.
298 Handwörterbuch der Rechtswissenschaft, Band VIII (Berlin, 1936),
article: ‘Stand,’ p. 683.
299 Dr. Knauth, ‘Die Aufgaben der Polizei im nationalsozialistischen
Staat,’ D. J. Z. 1936, p. 1206, 1210.
300 Georg Schmidt, ‘Zu einem Reichspolizeigesetz,’ R. Verw. Bl. 1935,
p. 838.
301 Reinhard Hoehn, ‘Die Wandlungen im Polizeirecht,’ Dtsch. Rw. 1936,
p. 100.
302 Walther Hamel, in Frank, Deutsches Verwaltungsrecht (München,
1937), p. 391.
303 Ludwig von Koehler, Grundlehren des Verwaltungsrechts (Berlin und
Stuttgart, 1935), pp. 347-8.
304 Arnold Koettgen, Deutsche Verwaltung (2nd ed., Berlin, 1937), p. 143.
305 Reinhard Hoehn, ‘Das Führerprinzip in der Verwaltung,’ Dtsch.
Recht, 1936, p. 306.
306 Schriftleitergesetz of October 4, 1933 (RGBl. 1933, 713).
307 Reichsgericht, April 28, 1936 (D. Jstz. 1936, p. 1131). The author of
the rumor that there was no freedom of the press in the Third Reich
was not unconditionally acquitted. The court decided to investigate
whether by ‘freedom’ he meant the freedom of the Weimar System or
the regulated freedom of the Third Reich. Had it been determined that
he meant the latter, he would have been found guilty and sentenced to
the penitentiary for a maximum of five years.
308 Franz Wieacker, ‘Der Stand der Rechtsemeuerung auf dem Gebiet des
bürgerlichen Rechts,’ Dtsch. Rw. 1937, p. 7.
309 Werner Mansfeld, ‘Die Deutsche Arbeitsfront,’ Dtsch. Arb. R. 1933,
p. 139.
310 Arnold Koettgen, ‘Polizei und Gesetz,’ R. Verw. Bl. 1938, p. 173.
311 At this point in our discussion, the justification of our undifferenti-
ated treatment of state and party authorities is quite evident. A purely
juristic analysis of the situation would treat the Labor Front and the
Estates as public corporations. But this would only obscure the real
situation.
312 Gesetz über Änderung einiger Vorschriften der Reichsversicherung
sordnung, December 23, 1936 (RGBl. 1936, 1128); Reichsversicherung
sordnung of July 19, 1911 (RGBl. 1926, 9, originally published RGBl.
1911, 509).
227
Notes 227
PA RT I I
Chapter I
313 Gustav Radbruch, Rechtsphilosophie (3rd ed., Leipzig, 1932), pp. 182 ff.
314 The fact that, historically viewed, the principle of inviolability of law
originated in Natural Law is purposely stressed by Radbruch, who
in the preface of his book announces his opposition to certain more
fashionable currents of thought and identifies himself with an epoch
which the National-Socialist legal philosopher Larenz had ridiculed as
the ‘Night of the Enlightenment.’
315 The authoritative character of these utterances is indicated by their
conspicuous publication in most law reviews.
316 Hans Gerber, ‘Volk und Staat (Grundlinien einer deutschen
Staatsphilosophie),’ Ztschr. f. dtsch. Kult. Philos., N. F. 1936, Band III
pp. 15-56, especially p. 24.
317 Ib., p. 23.
318 Ib., p. 42.
319 Ib., p. 41.
320 Alfred Rosenberg, ‘Lebensrecht, nicht Formalrecht,’ Dtsch. Recht
1934, p. 233.
321 Alfred Rosenberg, Der Mythos des 20. Jahrhunderts (53rd-4th ed.,
München, 1934), pp. 571-2.
322 Gustav Walz, ‘Der Führerstaat,’ D. Jstz., 1936, p. 814-15.
323 Rudolf Smend, Verfassung und Verfassungsrecht (München, 1928),
p. 102.
324 See note 321.
325 Carl Schmitt, ‘Nationalsozialistiches Rechtsdenken,’ Dtsch. Recht,
1934, p. 225.
326 Leuner, ‘Spekulatives und Lebensgesundes Staatsrecht,’ Jugend und
Recht, 1937, p. 49.
327 Hitler proclaimed this principle on the meeting of German lawyers in
Leipzig in a famous speech (October 1933). This dogma, incidentally,
completely denies the Kantian distinction between legality and moral-
ity. Cf. Georg Rusche and Otto Kirchheimer, Punishment and Social
Structure (New York 1939) p. 179.
328 Carl Dernedde, ‘Gesetz und Einzelanordnung,’ Ztschr. f. d. ges.
Staatsw, vol. 97, p. 377.
329 See note 16.
330 Hermann Heller, ‘Bürger und Bourgeois,’ Neue Rundschau 1932,
p. 725.
331 Speech delivered before the conference on legal and social philosophy
April 11, 1914 (Chicago University); published in The Philosophical
Review, vol. XXV, 1916. pp. 761-777, especially p. 761.
228
228 Notes
332 Carl L. Becker, ‘Afterthoughts on Constitutions,’ in C. J. Read, The
Constitution Reconsidered (New York, 1938), p. 396. Cf. Otto von
Gierke, Johannes Althusius und die Entwicklung der naturrechtlichen
Staatstheorien (4th ed., Breslau 1929) pp. 318, 366, 391.
333 T. Werner Jaeger, Paideia, the Ideals of Greek Culture (translated by
Gilbert Highet) (New York, 1939), p. 323. Smend was partly correct
when, in his praise of Carl Schmitt’s earlier writings (especially Die
Diktatur), he wrote: ‘The attitude of antiquity towards the state and
the antiquarian approach are beautifully combined in this book.’
(Smend: Verfassung und Verfassungsrecht, München, 1928, p. 104).
334 Reinhard Hoehn, Otto von Gierke’s Staatslehre und unsere Zeit
(Hamburg, 1936).
335 Alfred Manigk, ‘Rechtsfindung im neuen Staat,’ Arch. f. Rechts-u. Soz.
Phil. 1936, p. 176.
336 A. J. Carlyle, A History of Medieval Political Theory in the West
(Edinburgh and London, 1903), vol. I, p. 8.
337 Ib.
338 Charles H. McIlwain, The Growth of Political Thought in the West
(New York, 1932), pp. 364-5.
339 Gesetz zur Behebung der Not von Volk und Reich
(Ermächtigungsgesetz), March 24, 1933 (RGBl. 1933, 141).
340 Charles H. Mcllwain, ‘The Fundamental Law behind the Constitution
of the United States,’ in C. J. Read, The Constitution Reconsidered
(New York, 1938), pp. 5, 7, and McIlwain, Constitutionalism and
the Changing World (Collected Papers), article ‘Liberalism and the
Totalitarian Ideals’ (New York, 1939), p. 263.
Chapter II
341 Ernst Troeltsch, Die Soziallehren der christlichen Kirchen und Gruppen,
3rd ed. (Tübingen, 1923), English translation by Olive Wyon, The
Social Teachings of the Christian Churches (London, 1931).
342 Eduard Zeller, Die Philosophie der Griechen (5th ed., Leipzig 1909),
English translation by Alleyne, A History of Greek Philosophy
(London, 1881).
343 See note 341.
344 Martin Luther’s Sämtliche Werke (Deutsch), Band 50 (Frankfurt
a. M. —Erlangen, 1851), p. 349. Cf. Erich Brandenburg, Martin
Luther’s Anschauung vom Staate und der Gesellschaft (Halle, 1901),
p. 5, note 6.
345 Martin Luther, Von weltlicher Obrigkeit, Sämtliche Werke, Band 27,
(Frankfurt a. M. —Erlangen, 1851), p. 83. In his latest work, Der
Leviathan in der Staatslehre des Thomas Hobbes (Hamburg 1938),
229
Notes 229
Carl Schmitt tries to prove that modern freedom of thought and con-
science did not have its historical origin, as ordinarily assumed, in
Protestantism. Schmitt argues that, according to Hobbes, the indi-
vidual is free to believe what he desires to believe, provided he submits
to the religious cult prescribed by the state. Thus the undermining of
the omnipotent Leviathan was started by Hobbes himself. ‘A few years
after the publication of the Leviathan the first liberal Jew came across
this ordinarily unperceivable inconsistency’ (Schmitt, op. cit. p. 86.)
This ‘first liberal Jew,’ by a ‘simple logical maneuver’ characteristic
of ‘Jewish mentality,’ managed to pervert Hobbes’ line of reasoning.
Whereas Hobbes speaks of a sphere of reservation which the omnipo-
tent state graciously grants to the individual regarding his religion,
Spinoza (for Schmitt refers to no-one else by the application ‘first lib-
eral Jew’) postulates the principle of the freedom of belief in a man-
ner which makes it the duty of the state to respect all opinions in the
sphere of religion except when they undermine public safety. Spinoza,
according to Schmitt, thus took the decisive step in developing the
conception of the neutral and agnostic state of the nineteenth and
twentieth centuries, i. e., the conception of the very state which evokes
the deepest contempt on the part of National-Socialist Germany.
It is not difficult to detect the political purpose of this novel histori-
cal interpretation. By declaring the doctrine of freedom of conscience
to be a product of Jewish thought, Schmitt attempts to denounce the
fight of the Confessional Church for this doctrine as a Jewish affair.
Schmitt, however, overlooks two things. First: the principle of
tolerance as developed by Spinoza in his Tractatus Politicus had
been realized by Roger Williams in Rhode Island at a time when
Spinoza was only two years old. Secondly: Spinoza’s conception that
the freedom of thought must be granted to everyone and that the
right of intervention is limited only to the public manifestation, not
to the private creed, is in no way a product of ‘Jewish mentality.’ It
was a German of pure Aryan origin who developed the same idea
in his doctoral dissertation: Johann Wolfgang Goethe (cf. Dichtung
und Wahrheit, 3. Band 11. Buch; English translation by John
Oxenford: The Autobiography of Goethe, ‘From my own Life, Truth
and Poetry.’ London, 1891, p. 408).
346 Published in D. Jstz. 1937, p. 873.
347 Niccolo Machiavelli, ‘Discourses on the first ten Books of Titus Livius,
Book II, Chap. 2,’ in The Historical, Political, and Diplomatic Writings
of Niccolo Machiavelli (translated from the Italian by Christian E.
Detmold, Boston 1882), vol. II, p. 232.
348 Op. cit., Book I, Chap. 11 (vol. II, p. 127).
349 Hermann Heller, Staatslehre (Leyden, 1934), p. 218.
230
230 Notes
350 Norbert Gürke, ‘Der Stand der Völkerrechtswissenschaft,’ Dtsch. Rw.
Band II, p. 75.
351 Otto von Gierke, Johannes Althusius und die Entwicklung der natur-
rechtlichen Staatstheorien (2nd ed., Breslau, 1902), p. 73.
352 Hugo Preuss, Verfassungspolitische Entwicklungen in Deutschland
und Westeuropa (Historische Grundlegung zu einem Staatsrecht der
Deutschen Republik). (Aus dem Nachlass von Dr. Hugo Preuss her-
ausgegeben und eingeleitet von Dr. Hedwig Hintze, Berlin, 1925),
pp. 400-1; Alfred Vierkandt, Der Geistig-sittliche Gehalt des neueren
Naturrechts (Wien, 1927), p. 17.
353 Hans Kelsen, Die philosophischen Grundlagen der Naturrechtslehre
und des Rechtspositivismus (Charlottenburg, 1928), pp. 39-40.
354 Hermann Heller, ‘Political Science,’ in Encyclopaedia of Social Sciences,
ed. by Seligman and Johnson, vol. 12 (New York, 1934) p. 218.
355 Roscoe Pound, in Interpretation of Legal History (New York, 1923,
p. 19), has shown that the Historical School of Law was based upon
an irrational conception of Natural Law. Cf. Rexius, ‘Studien zur
Staatslehre der historischen Schule,’ H. Z. Band 107, pp. 513-15.
356 Carl Larenz, ‘Volksgeist und Recht, zur Revision der Rechtsanschauung
der historischen Schule,’ Ztschr. f. dtsch. Kult. Philos. Band I, p. 40,
especially p. 52.
357 Hegel, ‘Die Verfassung Deutschlands.’ Sämtliche Werke (herausgege-
ben von Lasson), Band VII (Leipzig, 1913) pp. 3-149.
358 Hegel, Grundlinien der Philosophie des Rechts (herausgegeben von
Lasson) 3rd ed. (Leipzig, 1930), §182, Zusatz, p. 334, English transla-
tion by S. W. Deyde, Philosophy of Right (London, 1896), p. 186.
359 Ib. §324, Zusatz, p. 369. English translation, p. 332.
360 Hegel, ‘Über die wissenschaftlichen Behandlungsarten des
Naturrechts.’ Sämtliche Werke (herausgegeben von Lasson), Band VII
(Leipzig, 1913), pp. 329-416, especially p. 371.
361 Friedrich Meinecke, Die Idee der Staatsraison (München, 1924), p. 435.
362 Hans Frank, ‘Die Aufgaben des Rechts,’ Akademie Ztschr. 1938, p. 4.
363 Alfred Rosenberg, Der Mythos des 20. Jahrhunderts (München, 1934),
p. 525.
364 Otto Koellreutter, Grundfragen des völkischen und staatlichen
Lebens im deutschen Volksstaat (Berlin- Charlottenburg, 1935),
p. 14, and Koellreutter, Volk und Staat in der Weltanschauung des
Nationalsozialismus (Berlin, 1935), pp. 12 ff.
365 Carl Larenz, ‘Die Rechts—und Staatsphilosophie des deutschen
Idealismus und ihre Gegenwartsbedeutung’ in Handbuch der
Philosophie, (herausgegeben von A. Baeumler und M. Schröter),
Abteilung IV, (München and Berlin, 1934), pp. 153, 187-8.
231
Notes 231
366 Julius Loewenstein, Hegels Staatsidee; ihr Doppelgesicht und ihr
Einfluss im 19. Jahrhundert (Berlin, 1927), note 45.
367 Hegel, Grundlinien der Philosophie des Rechts (herausgegeben von
Lasson), 3rd ed. (Leipzig, 1930), §270, p. 212; English translation by
S. W. Deyde, Philosophy of Right (London, 1896), p. 263.
368 Verhandlungen des Ersten Deutschen Soziologentages (Tübingen,
1911), p. 187.
369 Ernst Troeltsch, ‘Das stoisch-christliche Naturrecht und das moderne
profane Naturrecht’ in Gesammelte Werke, Band IV (Tübingen, 1921-
25), pp. 166-91, especially p. 186.
370 Ernst Troeltsch, ‘Das christliche Naturrecht (Überblick), in
Gesammelte Werke, Band IV (op. cit.), pp. 156- 6 6, especially
p. 165.
371 Max Weber in Wirtschaft und Gesellschaft (Tübingen 1921 pp. 499-
501) saw that beginnings of a proletarian Natural Law had been
checked by the Marxian hostility to Natural Law.
372 Friedrich Engels, The Housing Question, (Moscow —Leningrad
1935), p. 88.
373 Critique of the Gotha Programme, edited by C. P. Dutt (New York,
1937), p. 17.
374 Karl Marx, Capital, Vol. I (translated by Samuel Moore and Edward
Aveling, Chicago, 1912), pp. 258-9.
375 Ib., vol. III (translated by Ernest Untermann, Chicago, 1909), p. 399.
376 Hellmuth Plessner, Grenzen der Gemeinschaft (Eine Kritik des sozi-
alen Radikalismus) (Bonn, 1924), p. 36.
377 Karl Marx, op. cit. vol. III. p. 954.
378 Marx and Engels, Gesamtausgabe, vol. I, p. 325.
379 Michael Freund, George Sorel (Der revolutionäre Konservativismus)
(Frankfurt a. M. 1932).
380 Quoted in Waldemar Gurian, Der integrale Nationalismus in
Frankreich (Charles Maurras und die Action française) (Frankfurt
a. M., 1931) p. 84.
381 Ernst Jünger, Der Kampf als inneres Erlebnis (5th ed., Berlin,
1933) p. 78 and Ernst Jünger, ‘Die totale Mobilmachung’ in Krieg und
Krieger (ed. by Ernst Jünger, Berlin, 1930).
382 Carl Schmitt, ‘Nationalsozialistisches Rechtsdenken’ Dtsch. Recht,
1934, p. 225.
383 Even more characteristic than Carl Schmitt’s well-k nown essay on the
nature of political activity is a book by Richard Behrendt: Politischer
Aktivismus (Berlin, 1932).
384 Alfred Meusel, ‘Der klassische Sozialismus,’ Arch. f. Rechts. u. Soz.
Phil. Band XXIV, 1930-1, pp. 125-168, especially 148.
232
232 Notes
Chapter III
385 Carl L. Becker, The Declaration of Independence (New York, 1922) pp.
57, 60, 265, 274, 278. In the National-Socialist literature the problem is
discussed by Max Mikorey: ‘Naturgesetz und Staatsgesetz,’ Akademie
Ztschr. 1936, p. 932 especially p. 942). Cf. Friedrich Nietzsche, Beyond
Good and Evil, Prelude to a Philosophy of the Future (1st ed. London,
1901), p. 32.
386 The materialistic interpretation of history endeavors to derive the
changing problem of natural science from the change in productive
relations. Cf. Otto Bauer, ‘Das Weltbild des Kapitalismus,’ in Der leb-
endige Marxismus, Festgabe zum 70. Geburtstag von Karl Kautsky (ed.
by Otto Jennssen, Jena 1924). Yet the sociology of the natural sciences
is still an almost entirely unexplored territory.
387 Otto von Gierke, Das deutsche Genossenschaftsrecht, Band IV (Berlin
1913), p. 391, note 47.
388 Ib, p. 392, note 49; p. 491.
389 Leibniz, Deutsche Schriften (Berlin, 1838) Band I, p. 414.
390 George Gurvitch, article ‘Natural Law’ in Encyclopaedia of the Social
Sciences, ed. by Johnson and Seligman (New York, 1933), vol. XI, pp.
284-90.
391 The above references to the history of communal Natural Law are
necessitated by the fact that National-Socialist propagandists of this
theory—Professor Wolgast of Würzburg and his disciple Dietze–omit
reference to it. Since National-Socialism is supposed to be the origi-
nal creation of Adolf Hitler, such historical references are unfavorably
viewed in the Third Reich. Dietze’s ‘Naturrecht aus Blut und Boden’
(Akademie Ztschr. 1936, p. 818) represents the best summary of the
National-Socialist theory of communal Natural Law.
392 252 US 416, 433.
393 Adolf Hitler, Mein Kampf (42nd ed., München, 1933) p. 433.
394 Th. Buddeberg, ‘Descartes und der politische Absolutismus,’ Arch.
f. Rechts. u. Soz. Phil. Band XXX, 1937, p. 544.
395 Andreas Pfenning, ‘Gemeinschaft und Staatswissenschaft (Versuch
einer systematischen Bestimmung des Gemeinschaftsbegriffes),’
Ztschr. f. d. ges. Staatsw., Band 96, pp. 312 ff.
396 Konrad Heiden, History of National-Socialism (translated from the
German, London, 1934), has emphasized the influence of the Russian
emigration upon the development of National-Socialism. In the early
stages of the National-Socialist movement, Munich was the ‘Coblenz’
of the White Russian émigrés. It was from these circles that National-
Socialists also borrowed this particular form of anti-Semitism.
397 Max Weber, Wirtschaft und Gesellschaft (Tübingen, 1921), p. 631.
233
Notes 233
398 Hellmuth Dietze, Naturrecht der Gegenwart (Bonn, 1936)
399 The work of Professor Wolgast of the University of Würzburg
(‘Völkerrecht’ in Das gesamte Deutsche Recht in systematischer
Darstellung, Teil XIII, pp. 698-993, Berlin 1934) is of importance in this
connection. Wolgast acknowledges his indebtedness to Adolf Hitler,
the Leader, and to Toennies, the Seer of the Third Reich.
400 Norbert Gürke, Grundzüge des Völkerrechts (Berlin, 1936).
401 Ferdinand Toennies, Einführung in die Soziologie (Stuttgart, 1931).
402 Henry Maine, Ancient Law (London and Toronto, 1917), pp. 67-
100, especially p. 100. Cf. Ferdinand Toennies, Gemeinschaft und
Gesellschaft (6th ed., Berlin, 1926), Buch III, §7, p. 182, and Toennies,
Soziologische Studien und Kritiken (Jena, 1925), Band I, p. 54.
403 Karl Landauer, ‘Zum Niedergang des Fascismus,’ Gesellschaft, 1925,
p. 168.
404 Hans Freyer, Soziologie als Wirklichkeitswissenschaft (Leipzig, 1930),
p. 240.
405 Cf. Ernest Barker, Introduction to Otto Gierke, Natural Law and the
Theory of Society 1500-1800 (Cambridge, 1934), p. 17.
406 In the light of this claim it is of interest to note that during the post-
war period the concept of Gemeinschaft was also used for a time in the
Marxist labor movement in Germany. Though this appropriation of
the Gemeinschaft concept never got very far in the socialist movement,
it was not an isolated phenomenon. A somewhat similar Gemeinschaft
theory is to be found in Friedrich Engels’ Origin of the Family. The
primitive conditions ‘which preceded alienation,’ as sketched by
Engels, had many communal Natural Law traits.
Plessner’s contention that the Marxian theory is intelligible to the
proletariat only as a theory of liberation from the machine is correct.
But when he continues to say that ‘Socialism abolishes society for
the sake of community’ he is generalizing tendencies which existed
in the German socialist youth movement at the time the book was
written. These tendencies never became important in the policies of
the German working class parties. ( Hellmuth Plessner, Grenzen der
Gemeinschaft; eine Kritik des sozialen Radikalismus. Bonn 1924, p. 36.)
407 Johannes Heckel, ‘Der Einbruch des jüdischen Geistes in das deutsche
Staats—und Kirchenrecht durch F. J. Stahl,’ H. Z. 155, 529.
408 The present author, in spite of his complete skepticism regarding the
proposition that there is a close association between an author’s race
and his political theory, thinks it is not without interest to present at
least one example of a genuine ‘Aryan’ who has dealt with political the-
ory and who has not arrived at the theory of the Gemeinschaft. Justus
Möser, concerning whose Germanism National-Socialist authors have
never raised any questions, wrote: ‘Any civil society is like a stock
234
234 Notes
company. Every citizen is a stockholder. A serf is a member of the state
who has no shares and hence is without assets and liabilities. This is
no more contrary to religion than it is to be an employee of the East
India Company without possessing shares in it. At bottom there is an
explicit or tacit social contract among all landowners who turned in
their farms against shares.’ (Justus Möser, Patriotische Phantasien, III,
3rd. ed., Berlin, 1804, No. 62).
409 Carl Dernedde, ‘Werdendes Staatsrecht,’ Ztschr f. d. ges. Staatsw. 1935,
Band 95, p. 349.
410 Hans Gerber, ‘Volk und Staat (Grundlinien einer deutschen
Staatsphilosophie),’ Ztschr. f. dtsch. Kult. Philos., Band III, 1936, p. 47.
411 Heinrich Herrfahrdt, ‘Politische Verfassungslehre,’ Arch. f. Rechts.
u. Soz. Phil. Band XXX, 1936, p. 109.
412 Carl Schmitt, Über die drei Arten des rechtswissenschaftlichen Denkens,
(Schriften der Akademie für Deutsches Recht; Hamburg, 1934), p. 13.
413 Theodor Maunz, in Frank Deutsches Verwaltungsrecht
(München, 1937).
414 Carl Schmitt, Über die drei Arten des rechtswissenschaftlichen Denkens
(Hamburg, 1934), p. 52.
415 Hegel, Philosophie der Weltgeschichte. Sämtliche Werke (herausgege-
ben von Lasson), Band VIII (Leipzig, 1923), p. 925; English transla-
tion by J. Sibree, Lectures on the Philosophy of History (London, 1890),
pp. 470-1.
416 Carl Schmitt, Legalität und Legitimität (München, 1932), p. 13.
417 Georg Dahm, ‘Die drei Arten des rechtswissenschaftlichen Denkens,’
Ztschr. f. d. ges. Staatsw., Band 95, p. 181.
418 Friedrich Völtzer, ‘Vom Werden des deutschen Sozialismus,’ Ztschr.
f. d. ges. Staatsw., Band 96, p. 1.
419 Friedrich Kühn, ‘Der vorläufige Aufbau der gewerblichen Wirtschaft,’
Arch. f. öff. Recht, Band 27, p. 334.
420 Ib., p. 360.
421 Friedrich Völtzer, op. cit., p. 9.
422 Georg Havestädt, ‘Grundverhältnisse des Eigentums,’ Verwaltung
sarchiv, Band 42, pp. 337-68.
423 Ib., p. 365.
424 Ernst Huber, ‘Die Rechtsstellung des Volksgenossen (erläutert am
Beispiel der Eigentumsordnung),’ Ztschr. f. d. ges. Staatsw. 1935, p. 449.
425 Hans Peter Ipsen, Politik und Justiz (Das Problem der justizlosen
Hoheitsakte), (Hamburg, 1937).
426 Ib., p. 276.
427 He says that they refer ‘not to heteronomous but to homogeneous
spheres of a state in which justice rules.’ (Ib, p. 239.)
428 Ib., p. 12.
429 Ib., p. 12.
235
Notes 235
430 Max Weber, ‘Der Sinn der Wertfreiheit der soziologischen und ökono-
mischen Wissenschaften,’ (Gesammelte Aufsätze zur Wissenschaftslehre).
(Tübingen, 1922), p. 458.
431 Hans Frank, ‘Der Nationalsozialismus und die Wissenschaft der
Wirtschaftslehre,’ Schmoller’s Jahrbuch, Band 58, pp. 641-50, espe-
cially p. 643.
432 Cf. Heinrich Rickert, Kant als Philosoph der modernen Kultur (ein
geschichtsphilosophischer Versuch) (Tübingen, 1924), pp. 50, 125.
PA RT I I I
Chapter I
433 See: Ferdinand Toennies, Gemeinschaft und Gesellschaft (6th and 7th
eds., Berlin, 1926), p. 227, and Werner Sombart, Das Wirtschaftsleben
im Zeitalter des Hochkapitalismus (München and Leipzig 1927)
Band I, p. 48.
434 Otto Hintze, ‘Preussens Entwicklung zum Rechtsstaat,’ Forschungen
zur Brandenburgisch-Preussischen Geschichte, Band 32, p. 394.
435 Ib., Staatsverfassung und Heeresverfassung (Dresden, 1906), p. 43.
436 Michael Freund, ‘Zur Deutung der Utopia des Thomas Morus (Ein Beitrag
zur Geschichte der Staatsraison in England),’ H. Z. Band 142, p. 255.
437 Quoted in John Rushworth, Historical Collections (London, 1721), vol.
II, p. 323.
438 The Autobiography and Correspondence of Sir Simonds D’Ewes (edited
by James Orchard Halliwell), (London, 1845), vol. II, p. 130.
439 4 Wallace 2 (121, 127).
440 F. Morstein-Marx, ‘Roosevelt’s New Deal und das Dilemma ameri-
kanischer Staatsführung,’ Verwaltungsarchiv, Band 40, 1935, pp.
155-213.
441 Reinhard Hoehn, ‘Parlamentarische Demokratie und das neue
deutsche Verfassungsrecht,’ Dtsch. Rw. 1938, pp. 24-54.
442 A. V. Dicey, Introduction to the Study of the Law of the Constitution,
8th ed. (London, 1926), pp. 198-9.
443 Cf. William Ebenstein, ‘Rule of Law im Lichte der reinen Rechtslehre,’
Revue internationale de la théorie du droit, 1938, p. 316.
444 The document is reprinted in Altmann, Ausgewählte Urkunden zur
Brandenburgisch-Preussischen Verfassungs— und Verwaltungsge
schichte, 2nd ed. (Berlin, 1914).
445 Carl Brinkmann, in Landeskunde der Provinz Brandenburg (Berlin,
1910), Band II, p. 398, ‘Wirtschaftsgeschichte.’
446 Bernhard Erdmannsdörfer, Deutsche Geschichte im Zeitalter des
Absolutismus (Berlin, 1892-3), Band I, p. 423.
447 On the occasion of the 500th anniversary of the Hohenzollern
Dynasty in 1915, Otto Hintze had to admit that the Prussian nobility
236
236 Notes
had indeed known how to exploit the situation. (Die Hohenzollern und
ihr Werk [Berlin, 1916], p. 206.)
448 Otto Hintze, ‘Preussens Entwicklung zum Rechtsstaat,’ Forschungen
zur Brandenburgisch-Preussischen Geschichte, Band 32, p. 429.
449 Dr. Spatz in Landeskunde der Provinz Brandenburg (Berlin, 1910),
Band II, p. 275, ‘Zur Verwaltungsgeschichte der Städte und Dörfer,
Marken und Kreise.’
450 Edgar Loening, Gerichte und Verwaltungsbehörden in Brandenburg-
Preussen (Halle, 1914), p. 332.
451 Max Weber, Wirtschaft und Gesellschaft (Tübingen, 1922), p. 703.
452 Otto Hintze, ‘Preussens Entwicklung zum Rechtsstaat,’ Forschungen
zur Brandenburgisch-Preussischen Geschichte, Band 32, p. 379.
453 Hugo Preuss, Verfassungspolitische Entwicklungen in Deutschland
und Westeuropa (Historische Grundlagen zu einem Staatsrecht der
Deutschen Republik), (Berlin, 1925), p. 401.
454 Friedrich II., König von Preussen: Gesammelte Werke, Band 9, p. 205.
455 Otto Hintze, ‘Zur Agrarpolitik Friedrichs des Grossen,’ Forschungen
zur Brandenburgisch-Preussischen Geschichte, Band 10, p. 287.
456 Cf. Karl Brinkmann, op. cit. Band II, p. 298.
457 The delimitation of this procedure was related to the concept of status
oeconomicus, which came more and more to refer to questions con-
nected with the royal domains.
458 Cf. A. Wagner, Der Kampf der Justiz gegen die Verwaltung in Preussen
(dargelegt an der rechtsgeschichtlichen Entwicklung des Konfliktgesetzes
von 1844), (Hamburg, 1936).
459 G. F. Knapp, Die Bauernbefreiung und der Ursprung der Landarbeiter
in den älteren Teilen Preussens (2d ed., München, 1927). The decree
provided for the cession of land by the liberated peasants as compen-
sation to the Junkers for their losses. Hereditary copyholders had to
give up one third of their land, non-hereditary ones one half and peas-
ants without horses were entirely excluded from the soil.
460 Otto Hintze, Die Hohenzollern und ihr Werk, (Berlin, 1916), p. 495.
461 Gustav Schmoller made the following tabulation of the distribution of
the rural population under the absolute monarchy in Brandenburg (Zur
Verfassungs-, Verwaltungs-und Wirtschaftsgeschichte, Leipzig 1898, p. 623):
(Cotters (Kossäten) tilled land but without regular holding in the village
fields and without cattle.)
237
Notes 237
462 Marie Dumler, ‘Die Bestrebungen zur Befreiung der Privatbauern in
Preussen,’ Forschungen zur Brandenburgisch-Preussischen Geschichte,
Band 33, p. 187.
463 Rudolf Hilferding, Das Finanzkapital. (Marx- Studien, Band II),
(Wien, 1923), p. 432.
464 Friese, quoted in Edgar Loening, Gerichte und Verwaltungsbehörden
in Brandenburg-Preussen, (Halle, 1914), p. 133. Walter Hamel (Dtsch.
Recht 1936, p. 413) has described this important development of police
law. He proposes to substitute the Prussian Police Law of 1931 for
Friese’s decree of 1808.
465 Eckhart Kehr, ‘Zur Genesis der preussischen Bürokratie und des
Rechtsstaats (Ein Beitrag zum Diktaturproblem),’ Gesellschaft, 1932,
p. 109.
466 Rudolf Hilferding, op. cit., p. 432.
467 In contrast with the monarchy of Frederic the Great, in which the lead-
ership of the army and the upper hierarchy of the administration was
staffed exclusively by the nobility, while the state was directed politi-
cally by the king and his bourgeois councillors, in post-Napoleonic
Germany political leadership too fell into the hands of the aristocratic
higher bureaucracy. Prince von Hardenberg in Prussia, Prince von
Metternich in Austria were its most famous representatives.
468 Ludwig Waldecker, Von Brandenburg über Preussen zum Reich. (Berlin
1935), p. 114.
469 Franz Schnabel, Deutsche Geschichte im 19. Jahrhundert (Freiburg,
1929), Band II, p. 110.
470 Emil Lederer, ‘Zur Soziologie des Weltkrieges,’ Arch. f. Szw. Band 39, p. 359.
471 Ib., p. 373.
472 Konrad Heiden, History of National-Socialism (translated from the
German, London, 1934), p. 1.
Chapter II
473 Fritz Tarnow, Parteitag der Sozialdemokratischen Partei Deutschlands
zu Leipzig 1931 (Berlin, 1931), p. 45.
474 See Deutschlands wirtschaftliche Lage in der Jahresmitte 1939 (pub-
lished by the Reichskreditgesellschaft, Berlin, 1939).
475 Joseph Schumpeter, ‘Zur Soziologie der Imperialismen,’ (Arch. f. Szw.
Band 46, p. 309).
476 Fft. Ztg. May 22, 1935.
Chapter III
477 Ferdinand Toennies, Gemeinschaft und Gesellschaft (Berlin, 1926).
478 Cf. Hans Freyer, Soziologie als Wirklichkeitswissenschaft (Leipzig 1930).
238
238 Notes
479 Alfred von Martin, ‘Zur Soziologie der Gegenwart,’ Zeitschrift für
Kulturgeschichte, Band 27, pp. 94-119, especially p. 97.
480 Werner Sombart, A New Social Philosophy (Princeton, 1937).
481 See ‘Germany’s Economic War Preparations’ in The Banker, vol. 41,
1937, p. 138.
482 Heinz Marr, Die Massenwelt im Kampf um ihre Form (Zur Soziologie
der deutschen Gegenwart) (Hamburg, 1934), pp. 549, 564.
483 Ib., p. 550.
484 Reinhard Hoehn, review of Koellreutter, Grundriss der Allgemeinen
Staatslehre (J.W. 1936, p. 1653).
485 Andreas Pfenning, ‘Gemeinschaft und Staatswissenschaft (Versuch
einer systematischen Bestimmung des Gemeinschaftsbegriffs),’ Ztschr.
f. d. ges. Staatsw. Band 96, p. 314.
486 Reinhard Hoehn, Rechtsgemeinschaft und Volksgemeinschaft
(Hamburg, 1935), p. 81.
487 Hermann Schmalenbach, ‘Die soziologische Kategorie des Bundes,’
Die Dioskuren, Band 1, p. 35-105.
488 Werner Mansfeld, ‘Der Führer des Betriebes,’ J. W. 1934, p. 1005.
Till 1933 Mansfeld was counsel for the mining industry. ‘Whenever
the legislature attempts to regulate the differences between masters
and workmen, its counsellors are always the masters.’ (Adam Smith,
Wealth of Nations, Chap. X.)
489 Heinz Marr, op. cit. pp. 466, 7, 8.
490 Ib.
491 D. A. Z., April 28, 1938.
492 Ib.
493 Ib.
494 Ib.
495 Ib.
496 Werner Mansfeld, ‘Vom Arbeitsvertrag,’ Dtsch. Arb. R. 1936, p. 124.
497 Karl Marx, Capital, vol. I, (translated by Samuel Moore and Edward
Aveling, Chicago, 1912) p. 692.
498 Andreas Pfenning, ‘Gemeinschaft und Staatswissenschaft,’ Ztschr. f. d.
ges. Staatsw. Band 96, p. 302.
499 Gottfried Neese, ‘Die verfassungsrechtliche Gestaltung der
“Einpartei,”’ Ztschr. f d. ges. Staatsw. Band 98, p. 680.
500 See note 498.
501 Max Weber, Wirtschaft und Gesellschaft, (Tübingen, 1922) p. 198.
502 Hellmuth Plessner, Grenzen der Gemeinschaft, (Eine Kritik des sozi-
alen Radikalismus), (Bonn, 1924) p. 54.
503 Hence, it is interesting to recall that more than 130 years ago the
Federalists realized the same point when they were fighting
Jeffersonian democracy. One of their leaders, Fisher Ames, wrote
239
Notes 239
in 1802 to Rufus King: ‘We need, as all nations do, the compres-
sion on the outside of our circle of a formidable neighbour, whose
presence shall at all times excite stronger fears than demagogues
can inspire the people with towards their government.’ (Quoted in
Raymond Gettell, History of American Political Thought (New York,
1928), p. 185.) This letter of Fisher Ames draws its meaning from the
dread of Jacobinism which swept the western world after the French
Revolution.
504 Carl Schmitt, ‘Totaler Feind, totaler Krieg, totaler Staat,’ Völkerrecht
und Völkerbund, Band IV, 1937, pp. 139-145.
505 Quoted in Rasse und Recht, 1935, p. 29.
506 Article ‘Rechtsstaat’ in ‘Handwörterbuch der Rechtswissenschaft,’
Band VIII, pp. 572-3.
507 Carl Schmitt (Geistesgeschichtliche Lage des Parlamentarismus, 2nd
ed., München, 1926, p. 87) once pointed out quite aptly that the his-
tory of the stereotype of the bourgeoisie is as important as the history
of the bourgeoisie itself. However, Schmitt accused Marxism unjustly
of having given an almost supernatural aura to this stereotype. ‘A
synthesis of all that is hateful with which one does not discuss —but
which one annihilates.’ The racial problem has a bogey function in
National-Socialist theory of the community. [On the ‘bogey’ cf. Paul
Szende, ‘Eine soziologische Theorie der Abstraktion,’ Arch.f. Szw.
Band 50, p. 469].
508 Reinhard Hoehn, Rechtsgemeinschaft und Volksgemeinschaft
(Hamburg, 1935) p. 83. (‘Vom Standpunkt der Volksgemeinschaft ist
jede Wertgemeinschaft eine Zersetzungsgemeinschaft.’)
509 Fritz Kern, ‘Über die mittelalterliche Anschauung von Staat, Recht
und Verfassung,’ H. Z. Band 120, pp. 63-4.
510 Ludo Moritz Hartmann, ‘Der Begriff des Politischen,’ (Festgabe für
Lujo Brentano zu dessen 70. Geburtstag, München 1916, p. 220.)
511 Carl Schmitt, ‘Der Begriff des Politischen’ Arch. f. Szw Band 58, p. 1.
512 Rudolf Smend, Die politische Gewalt im Verfassungsstaat und das
Problem der Staatsform, (Festgabe für Wilhelm Kahl), (Tübingen,
1923), p. 17.
513 Joseph Schumpeter, ‘Zur Soziologie der Imperialismen,’ Arch. f. Szw.
Band 46, pp. 1-39, 275-310.
514 Hubert R. Knickerbocker, The German Crisis (New York, 1932).
515 On September 20, 1922, Mussolini said in a speech at Udine: ‘Our pro-
gram is very simple —we want to rule Italy!’
516 Walther Rathenau, Gesammelte Schriften, Band V, p. 272.
517 Hans Kelsen, ‘The Party Dictatorship,’ Politica, vol. II, p. 31.
518 Heinrich Herrfahrdt, ‘Politische Verfassungslehre,’ Arch. f. Rechts-
u. Soz. Phil.,’ Band XXX p. 107.
240
240 Notes
519 The Earl of Balfour, introduction to Walter Bagehot, The English
Constitution (Oxford, 1928), p. xxiv.
520 ‘First Inaugural Address, March 4, 1801,’ in A Compilation of the
Messages and Papers of the Presidents, vol. I, (New York, 1897), p. 310.
521 Hegel, Grundlinien der Philosophie des Rechts (herausgegeben von
Lasson), 3rd ed. (Leipzig, 1930), §270, p. 212; English translation by
S. W. Deyde, Philosophy of Right (London, 1896), p. 263.
522 Fft. Ztg., January 22, 1937.
523 Alfred von Martin, ‘Zur Soziologie der Gegenwart,’ Zeitschrift für
Kulturgeschichte, Band 27, pp. 94-117.
524 Arnold Koettgen, ‘Die Gesetzmassigkeit der Verwaltung im
Führerstaat,’ R. Verw. Bl. 1936, pp. 457-62.
525 See Karl Mannheim, Mensch und Gesellschaft im Zeitalter des Umbaus
(Leyden, 1935), p. 27 and ib., ‘Rational and Irrational Elements in
Contemporary Society,’ L. T. Hobhouse Memorial Trust Lectures No.
4, delivered on 7 March 1934 (London, 1934), p. 14.
526 Carl Schmitt, Römischer Katholizismus und politische Form (Hellerau,
1923), p. 31. This book was later withdrawn from circulation by
Schmitt himself.
527 Ib., p. 30
528 Rainer Heyne, ‘George Sorel und der autoritäre Staat des 20.
Jahrhunderts,’ Arch. d. öff. Rechts, N. F., Band 29, p. 129.
529 Ib.
530 Er nennt’s Vernunft und braucht’s allein,
Nur tierischer als jedes Tier zu sein.
(Goethe, Faust.)
241
A PPE N DI X T O T H E 19 41 E DI T ION
REICHSGESETZBLATT
(Official Statute Book)
Teil I
1933 Issued at Berlin, February 28, 1933 No. 17
Contents: Decree of the President of the Reich for the Protection of the
People and the State. February 28, 1933, p. 83.
DECREE OF THE PRESIDENT OF THE REICH FOR
THE PROTECTION OF THE PEOPLE AND THE
STATE … OF FEBRUARY 28, 1933.
On account of the Article 48, paragraph 2 of the Constitution of the Reich,
the following decree is issued for the defence against Communistic, state-
endangering acts of violence:
§ 1.
The Articles 114, 115, 117, 118, 123, 124, and 153 of the Constitution of the
German Reich are put out of force until further notice. Restrictions of per-
sonal freedom, the right of free expression of opinion, including the right
of the press, the right of associations and meetings, interference with the
secrets of letters, of the post, the telegraph and the telephone, the issue of
search warrants, as well as of orders for confiscation or restriction of prop-
erty —all these restrictions are therefore also admissable beyond the oth-
erwise legally fixed limitations.
§ 2.
If the necessary measures for the re-establishment of public security and
order are not taken the Government of the Reich may then temporarily
exercise the authority of the supreme Government of the land.
§ 3.
The authorities of the lands and municipalities (Municipal Associations)
have to comply with the orders of the Government of the Reich issued on
account of 2 within the framework of their competence.
242
A PPE N DI X I T O T H E 19 74 G E R M A N E DI T ION 1
1
Source: “Anhang I,” in Ernst Fraenkel, Der Doppelstaat, translated by Manuela
Schöps (Frankfurt: Europäische Verlagsanstalt, 1974), 243–5.
243
A PPE N DI X I I T O T H E 19 74 G E R M A N E DI T ION 1
It must have been as late as 1938 when I received a request from prison to
visit a detainee in pre-trial detention. The person in question was a Jew for
whom an arrest warrant had been issued for a violation of the Decree of
the Reich President for the Defense against Malicious Attacks against the
Government of the National Uprising of March 21, 1933 (Verordnung des
Reichspräsidenten zur Abwehr heimtückischer Angriffe gegen die Regierung
der nationalen Erhebung).2 The detention occurred when the accused, while
perusing the latest issue of the weekly Der Stürmer in a public display case
at a bus stop, muttered to himself, “This is an old hat” (“Das ist ja alles
alter Käse”). At this very moment, the accused told me, a member of the
SA (Schutzabteilung), whom he had not previously noticed, arrested him,
claiming that he had insulted the Führer. When I asked my client what had
prompted his utterance, he replied that he remembered very clearly that
he had seen the photograph [on view in the display case] some time ago in
the magazine Die Woche. In both weeklies, he claimed, the photograph was
published as evidence of the catastrophic conditions in the Soviet Union.
After reviewing the court documents, which included the image from
Der Stürmer, and inspecting Die Woche, which I did in the Staatsbibliothek
[a famous library in Berlin, at the time the largest in the German-speaking
world], I was indeed able to determine that the images were identical. Once
I had procured a copy of Die Woche, I explained to my client that the judge,
if presented with the image in Die Woche, would—by comparing it to the
image in Der Stürmer available in the files—have to conclude that the
accused’s utterance had been truthful. I explained that it was very likely
that the relevant district court judge would lift the arrest warrant and sus-
pend the investigation.
We were not just dealing with a judicial arrest warrant, however. The
Gestapo had also issued an arrest warrant for my client. I was unable to
negotiate about it being lifted as well. For at the entrance to the Gestapo
1
Source: “Anhang II,” in Ernst Fraenkel, Der Doppelstaat, translated by Manuela
Schöps (Frankfurt: Europäische Verlagsanstalt, 1974), 246–7.
2
Translator’s note: In the 1974 edition, the decree was listed with the wrong date. It
has been corrected in this edition.
246
Table of Cases
Kammergericht
(Oberlandesgericht Berlin) 25. 6. 37 Recht des Reichsnährstandes
38, No. 63.
” ” 12. 7. 35 R. Verw. Bl. 36, p. 61.
” ” 12. 5. 38 Jgdr. u. Jgdwohlf. 38, p. 272.
Oberlandesgericht Braunschweig 29. 5. 35 Höchst. R. Rspr. 36, p. 98.
” Dresden 31. 1. 35 D. J. Z. 35, p. 439.
” Düsseldorf 10. 7. 35 D. J. Z. 35, p. 1123.
” Hamburg 31. 3. 36 D. J. Z. 36, p. 771.
” ” 15. 4. 37 Funk Archiv 37, p. 257.
” ” 4. 5. 37 Hans. R. u. Ger. Ztg. 37,
B. 216.
” ” 12. 5. 37 D. Jstz. 37, p. 1712.
” Karlsruhe 25. 6. 36 J. W. 36, p. 3268.
” Kiel 25. 11. 35 Höchst. R. Rspr. 36, p. 592.
” Köln 1. 2. 35 J. W. 35, p. 1106.
” München 10. 8. 36 Reger 37, p. 571.
” ” 27. 1. 37 Jahrb. f. Entsch. der freiw.
Gbk. 15, p. 58.
” ” 4. 11. 37 Entsch. des KG. u. OLG.
München 17, p. 273.
” ” 8. 12. 37 D. Jstz. 38, p. 724.
” Naumburg 20. 4. 37 Akademie Ztschr. 37, p. 587.
” Stettin 25. 3. 36 J. W. 37, p. 241.
” ” 14. 4. 37 J. W. 37, p. 2212.
” Zweibrücken 24. 12. 34 D. J. Z. 35, p. 442.
Landgericht Berlin 1. 11. 33 D. Jstz. 34, p. 64.
” ” 7. 11. 38 J. W. 38, p. 3242.
” Breslau 18. 11. 34 D. Jstz. 35, p. 413.
” Dresden 18. 3. 35 J. W. 35, p. 1949.
” Hamburg 6. 5. 36 Jgndr. u. Jgndwohlf. 36,
p. 281.
” ” Dtsch. R. Z. 35, No. 631.
” Tübingen 25. 1. 34 J. W. 34, p. 627.
” Zwickau 14. 3. 37 J. W. 38, p. 2145.
Landesarbeitsgericht Berlin 17. 11. 34 D. Jstz. 35. p. 73.
” Gleiwitz Dtsch. Rpfl. 36, p. 59.
” München 31. 7. 37 D. Jstz. 37, p. 1159.
Sondergericht Breslau Dtsch. R. Z. 35, No. 554.
” Darmstadt 26. 3. 34 J. W. 34, p. 1747.
Sondergericht Hamburg 15. 3. 35 J. W. 35, p. 2988.
” Hamburg 5. 6. 35 J. W. 35, p. 2988.
Amtsgericht Berlin 12. 8. 36 Jgndr. u. Jgndwohlf. 36, p. 283.
” Berlin-Lichterfelde 15. 4. 35 Das Recht, 35, No. 8015.
” Berlin-Charlottenburg 3. 9. 38 J. W. 38, p. 3172.
” Berlin-Schöneberg 16. 9. 38 J. W. 38, p. 3045.
” Frankfurt-Höchst 4. 5. 37 Dtsch. Recht 37, p. 466.
” Hamburg 15. 4. 35 Das Recht, 35, No. 8016.
” Wilsen 26. 2. 38 J. W. 38, p. 1264.
Arbeitsgericht Saalfeld 13. 7. 37 J. W. 37. p. 2850.
249
Administrative Courts
Reichsdienststrafhof 11. 2. 35 Ztschr. f. Beamtenr. 36, p. 104.
” 15. 6. 37 Ztschr. f. Beamtenr. 37, p. 104.
” 30. 8. 38 Dtsch. Verw. 39, p. 281.
Badischer Verwaltungsgerichtshof 11. 1. 38 Bad. Verw. Ztschr. 38, p. 87.
Bayrischer Verwaltungsgerichtshof 8. 5. 36 Reger 37, p. 533.
” ” ” 5. 6. 36 R. Verw. Bl. 38, p. 17.
Hamburger Oberverwaltungsgericht 7. 10. 34 R. Verw. Bl. 35, p. 1045.
Preussisches Oberverwaltungsgericht 24. 10. 34 OVG. 94, p. 138.
” ” ” ” 25. 10. 34 R. Verw. Bl. 35, p. 458.
” ” ” ” 10. 1. 35 R. Verw. Bl. 35, p. 923.
” ” ” ” 2. 5. 35 R. Verw. Bl. 35, p. 577.
” ” ” ” 23. 5. 35 J. W. 35, p. 2670.
” ” ” ” 21. 11. 35 R. Verw. Bl. 1936, p. 553.
” ” ” ” 5. 12. 35 OVG. 97, p. 117.
” ” ” ” 19. 3. 36 J. W. 36, p. 2189.
” ” ” ” 27. 5. 36 J. W. 36, p. 2277.
” ” ” ” 2. 7. 36 J. W. 36, p. 3415.
” ” ” ” 8. 10. 36 J. W. 37, p. 1031.
” ” ” ” 28. 1. 37 Verkehrsr. Abh. 37, p. 319.
” ” ” ” 29. 6. 37 R. Verw. Bl. 37, p. 762.
” ” ” ” 10. 11. 38 J. W. 39, p. 382.
” ” ” ” 15. 12. 38 R. Verw. Bl. 39, p. 544.
Sächsisches Oberverwaltungsgericht 4. 12. 36 J. W. 37, p. 1368.
” ” ” ” 25. 11. 38 R. Verw. Bl. 39, p. 105.
Württembergischer Verwaltungsgerichtshof 9. 9. 36 Dtsch. Verw. 36, p. 385.
Preussischer Kompetenzgerichtshof 27. 6. 36 R. Verw. Bl. 36, p. 860.
250
251
Index
Absolutism: Constitution:
and arbitrariness, 113 Third Reich, 3ff, 83, 96, 187
of bureaucracy, 165, 170 USA, 136, 219f
dictatorial, 170 Weimar, 13ff, 32, 61, 168ff
monarchical, 157ff, 170 Contracts, 76f, 85
Agnostic state, 48, 218 Control of business, 70, 173f, 179ff
Arbitrary and discretionary power, 62, Coup d’état, 4f, 13
69f, 222 Courts of Social Honor, 40, 81
Autarcy, 177f
Decisionism, 142, 145
Becker, Carl L., 112, 133 Dicey, A. V., 156, 222
Best, Werner, 25, 33, 39f, 61f
Building permit, 58 Enabling Law, 4f, 8, 113
Burke, Edmund, 123 Enemy of the state, 43, 45
Engels, Friedrich, 127, 231
Capitalism: Estate system:
competitive and monopoly, 70, 172 history, 157
183ff, 205 National-Socialist theory, 144
Dual State, 171f Normative State, 97ff
National-Socialist Party, 61, 183 Shop Troops, 195
National-Socialist theory, 153 Excès de pouvoir, 72
Natural Law, 131
Normative State, 71ff Family relations, 55f, 87f
and rationality, xii, 73, 205ff Frank, Hans, 125, 149
Third Reich, 196, 203ff Freedom:
Cartels, 97, 172, 175 of association, 15, 59
Catholicism: of conscience, 32, 116, 118f
National-Socialism, 17f, 56, 77, 118 National-Socialist concept of, 47f
Natural Law, 116 of press, 100, 225
Charity organizations, 21, 47f of worship, 15, 32, 54f
Church struggle, 17ff, 22f, 42, 117, 119 Freissler, Roland, 50, 59, 72, 199
Civil Servant, 29f, 47, 78f, 216 Frick, Wilhelm, 38
Class structure, 63, 86, 102, 186, 197
Class-struggle, 102, 144, 186 Gestapo:
Communism: economic policy, 72
Communist Party, 3f, 12, 16f, 49f functions, 21f, 216
55f, 239 jurisdiction, 43ff
in a broader sense, 19 and legal order, 26ff
indirect communistic activities, 18f organization, 9, 211
sympathizers, 23 Gierke, Otto von, 112, 122, 134, 226
Concentration camp, 12, 39ff Goering, Hermann, 74
Concrete theory of order, 99, 142 Government and administration,
145, 196 66ff, 201
Confessional Church:
National-Socialism, 18f Hegel, Georg Fr. W., 60, 124ff, 143, 204
Natural Law, 117f High treason, 49ff
252
252 Index
Hindenburg, Paul von, 4 Weimar Constitution, 5ff
Historical School of Law, 123f World War, 168
Hobbes, Thomas, 139, 227 Marx, Karl, 13, 127ff, 196f
Marxian Socialism, 114, 126ff, 229, 231
Imperialism, 131, 176, 184, 202 Master and servant, 33f, 80f, 92
Industrial revolution, 190 Mcllvain, Charles, 113
Inflation, 180 Middle classes, 173, 189f
International law, 65f, 76, 135, 138, 203 Miles perpetuus, 158, 164, 170
Military conscription, 164, 170
Jefferson, Thomas, 67, 204 Montesquieu, Charles de, 67
Jehovah’s Witnesses: Morality and law, 110f, 226
Natural Law, 117 Mortgage, 85
Prerogative State, 15, 17, 53ff Möser, Justus, 232
Jews:
martial law, 96 National-Socialist Party:
National-Socialist Party, 7, 35f, 83, 96 and competing
National-Socialist theory, 87, 140 organizations, 22, 28
148, 199f and courts, 34ff, 216
Normative State, 73, 87ff and members, 34, 146f
Prerogative State, 62, 90ff, 215 and outsiders, 35f, 147, 148
Junker, 157f, 162ff, 234 and state, xiii, 7f, 22, 34
Justice: National-Socialist Party program:
formal and material 46, 86 anti-Semitism, 36, 83, 87, 96
restricted to Germans, 108f anti-capitalistic tendencies, 85, 175
restricted to National-Socialists, 147 positive Christianity, 32, 119f
private law, 61, 83, 85
Kant, Immanuel, 122, 226 racial idea, 87
Ne bis in idem, 51
Labor Front: Niemöller, 39
agent of Gestapo, 7 Normativism, 140ff
anti-Jewish activities, 92 Nulla poena sine lege, 109
class-struggle, 144
estate system, 101 Pacifism:
Normative State, 80f National-Socialism, 53, 197
Shop Troops, 194ff Social-Democracy, 131
Landlord and tenant, 93ff Peasant law:
Leader principle, 112, 192ff, 204 history, 157, 160ff, 165
Lederer, Emil, 168 Third Reich, 77f, 189
Leibniz, Gottfried Wilhelm von, 134 Penal law:
Liberal principles, 17, 95, 108 and formal justice, 47
Locke, John, 66f procedure, 50ff
Luther, Martin, 118ff political crimes, 33, 49ff
People’s Tribunal, 50ff
Machiavelli, Nicolo, 111, 120f Police law:
Mannheim, Karl, 206ff, 221 history, 161, 163ff, 166
Martial law: Third Reich:
American law, 24f, 156 and estate system, 98ff
English law, 24, 52f and Gestapo, 27
German law: and judicial review, 25ff
history, 11f, 212 positive and negative
National-Socialist theory, 25, 200 functions 20ff
Third Reich, 3ff, 52, 57, 96, 156 Press law, 8, 100, 225
253
Index 253
Property: Third Reich:
economic aspect, 172f economic aspect, 185
National-Socialist theory, 61 international law, 221
and Normative State, 72ff, 185ff National-Socialist theory, 199
and Prerogative State, 14 Normative State, 71
Protective custody, 12, 30, 40 Prerogative State, 9ff
Protective tariff, 165, 172, 177ff
Protestantism: Savigny, Friedrich Karl von, 123f 165f
and Natural Law, 116 Schmalenbach, Hermann, 192f
and Third Reich: Schmitt, Carl, 5, 11, 13, 19, 25, 35 52, 57,
clergy, 18 60f, 65f, 68, 76, 110, 118 130f,
missionary work, 19, 21 142, 198, 201f, 217f, 226f 237
women’s organization, 22 Schumpeter, Josef, 183, 201f
Punishment: Sectarian movements:
administrative and Natural Law, 116
criminal, 41, 166 Third Reich, 23
Self-defense of state, 17
Racial doctrine: Smend, Rudolf, 68, 110, 201f, 226
and Natural Law, 133f Social-Democracy, 127, 130, 132, 203
Third Reich, 87ff, 113 Social insurance, 102f
Raison d’état: Social reform, 181
and National-Socialism, 108 Sohm, Rudolf, 46
and Natural Law, 125, 160 Sombart, Werner, 154, 188
and the police state, 167 Sorel, George, 130, 207
Rathenau, Walter, 202f Spinoza, Baruch, 227
Rearmament, 138, 173, 177, 179ff, 189f, Storm Troopers, 5, 7, 34, 190ff, 196
205, 208 Stuart absolutism, 11, 38, 48, 54f, 155
Re-employment, 182 Syndicalism, 130
Religion:
and National-Socialism, 119ff Tawney, Richard, 48
Reservation of politics: Taxes, 78f, 180
external and internal, 74 Toennies, Ferdinand, 139, 154, 188, 231
and international law, 65 Totalitarian state:
and inviolability of law, 52, 107 estate system, 97ff
and religion, 119 National-Socialist theory, 60ff
and science, 148f Total mobilization, 60, 170
Robespierre, Maximilien de, 219 Total war, 198
Roman law: Trade unions, 7, 144, 175, 179ff, 186f
Natural Law, 116 Traditional law:
National-Socialist attitude absolute monarchy, 158
towards, 112 National-Socialism, 123, 201
Rosenberg, Alfred, 54, 109, 125, Traffic regulation, 43f
137, 220 Troeltsch, Ernst, 115, 126, 139
Rule of Law:
America, 156 Unfair competition, 35, 79, 89
England, 154ff
Germany: Vaterlandspartei, 168ff
history:
enlightened despotism, 159 Weber, Max, 4, 12, 46, 48, 137f, 148f,
Revolution of 1848, 167 159, 192, 198, 206, 212, 214
imperial Germany, 167f
Weimar Republic, 169f Youth movement, 139