Bernhard Schlink & Arthur Jacobson 
Weimar 
A Jurisprudence of Crisis

This selection of the major works of constitutional theory during the Weimar period reflects the reactions of legal scholars to a state in permanent crisis, a society in which all bets were off. Yet the Weimar Republic’s brief experiment in constitutionalism laid the groundwork for the postwar Federal Republic, and today its lessons can be of use to states throughout the world. Weimar legal theory is a key to understanding the experience of nations turning from traditional, religious, or command-and-control forms of legitimation to the rule of law.


Only two of these authors, Hans Kelsen and Carl Schmitt, have been published to any extent in English, but they and the others whose writings are translated here played key roles in the political and constitutional struggles of the Weimar Republic. Critical introductions to all the theorists and commentaries on their works have been provided by experts from Austria, Canada, Germany, and the United States. In their general introduction, the editors place the Weimar debate in the context of the history and politics of the Weimar Republic and the struggle for constitutionalism in Germany. This critical scrutiny of the Weimar jurisprudence of crisis offers an invaluable overview of the perils and promise of constitutional development in states that lack an entrenched tradition of constitutionalism.

Inhaltsverzeichnis

Preface

Translation and Apparatus


Introduction. Constitutional Crisis: The German and the American Experience, by Arthur J. Jacobson and Bernhard Schlink


Prologue. The Shattering of Methods in Late Wilhelmine Germany

Introduction, by Stefan Korioth

On Legal Theory and Sociology (1911), by Max Weber

Constitutional Amendment and Constitutional Transformation (1906), by Georg Jellinek

On the Borders between Legal and Sociological Method (1911), by Hans Kelsen

Statute and Judgment (1912), by Carl Schmitt


1. Hans Kelsen

Introduction, by Clemens Jabloner

Legal Formalism and the Pure Theory of Law (1929), by Hans Kelsen

On the Essence and Value of Democracy (1929), by Hans Kelsen


2. Hugo Preuss

Introduction, by Christoph Schoenberger

The Significance of the Democratic Republic for the Idea of Social Justice (1925), by Hugo Preuss


3. Gerhard Anschütz

Introduction, by Walter Pauly

Three Guiding Principles of the Weimar Constitution (1922), by Gerhard Anschütz


4. Richard Thoma

Introduction, by Peter C. Caldwell

The Reich as a Democracy (1930), by Richard Thoma


5. Heinrich Triepel

Introduction, by Ralf Poscher

Law of the State and Politics (1926), by Heinrich Triepel


6. Erich Kaufmann

Introduction, by Stephen Cloyd

On the Problem of People’s Will (1931), by Erich Kaufmann


7. Rudolf Smend

Introduction, by Stefan Korioth

Constitution and Constitutional Law (1928), by Rudolf Smend


8. Hermann Heller

Introduction, by David Dyzenhaus

Political Democracy and Social Homogeneity (1928), by Hermann Heller

The Essence and Structure of the State (1934), by Hermann Heller


9. Carl Schmitt

Introduction, by Volker Neumann

The Status Quo and the Peace (1925), by Carl Schmitt

The Liberal Rule of Law (1928), by Carl Schmitt

State Ethics and the Pluralist State (1930), by Carl Schmitt


Epilogue. The Decline of Theory

Introduction, by Reinhard Mehring

The Total State (1933), by Ernst Forsthoff

Legal Community as National Community (1935), by Reinhard H{od}hn

The Constitution of Freedom (1935), by Carl Schmitt

The Administration as Provider of Services (1938), by Ernst Forsthoff

New Foundations of Administrative Law (1934), by Theodor Maunz

Administration (1937), by Theodor Maunz

Constitution (1937), by Ernst Rudolf Huber

Form and Structure of the Reich (1941), by Ernst Rudolf Huber

‚Positions and Concepts‘: A Debate with Carl Schmitt (1941), by Ernst Rudolf Huber

Reich, Sphere of Influence, Great Power (1942), by Reinhard Höhn


Notes

Editors and Contributors

Copyright Acknowledgments

Index

Über den Autor

Arthur J. Jacobson is Max Freund Professor of Litigation and Advocacy at the Benjamin N. Cardozo School of Law, Yeshiva University, and coauthor of The Longest Night: Polemics and Perspectives on Election 2000 (California, 2002). Bernhard Schlink is Professor of Public Law and Legal Philosophy at Humboldt Universität zu Berlin. His novel, The Reader (trans. 1999), has won critical acclaim in German and in English.