Social Democracy and the Rule of Law

Otto Kirchheimer, Franz Neumann, Keith Tribe, Keith Tribe, Leena Tanner

• Publisher: Taylor & Francis
• Year: 2019
• eBook ISBN: 9781000706536
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

First published in 1987. The legal and political writings of the German Social Democrats Kirchheimer and Neumann, from the period prior to the National Socialist seizure of power, are little known to English readers. This volume presents a selection of important essays from this period, which focus on the prospects for the constitutional realization of a social democratic order in the first German Republic - the Weimar Republic, created out of the collapse of the monarchy in 1918, and destroyed by the National Socialists in 1933.

Both Kirchheimer and Neumann were active as lawyers in the later 1920s and early 1930s, the latter especially having a close connection with trade union legislation and labour law. From their viewpoint as Social Democrats and lawyers they present incisive analyses of the problems confronted by the attempt to realize the ideal of a social Rechtsstaat in a political environment increasingly dominated by forces on left and right which saw constitutional order only as a means to seize power, and not as a legitimate form of order in itself. In these circumstances, political issues translated into constitutional issues, and thus could be analysed in terms of the aims and objectives of a given constitutional order.

A substantial introduction by the volume's editor, Keith Tribe, presents the political and theoretical background to these essays, which range over questions of industrial democracy, political representation, parliamentary rule and the role of judicial review. These issues are once more on the political agenda of Western industrial democracies, and the analyses of Kirchheimer and Neumann have lost none of their force and relevance, despite the catastrophic 'failure' of Weimar democracy in 1933.

1 The Social Significance of the Basic Laws in the Weimar Constitution

FRANZ NEUMANN

In the eleven years since the introduction of the Weimar Constitution, its basic laws have been subjected to an extraordinary variety of assessments.¹ Popularized writings on constitutional law have lauded them extravagantly, their significance being immeasurably boosted. By contrast, jurisprudence, which first almost completely denied the legal significance of the basic laws, has unceasingly minimized them, seeing in them solely non-binding phrases from a yet-to-be-realized programme of measures on the part of constitutional authority. Nevertheless, to the degree that the bourgeoisie gained strength and opposed the achievements of the post-revolutionary period, a complete transformation has taken place in the evaluation of the basic laws by the bourgeois theory of the state. It is possible to state that today not only the law-making activity of parliament but also the purely political action of cabinets (for example, the declaration of the Prussian cabinet on the participation of civil servants in popular initiatives) is regulated juridically by the requirements of the basic laws. This control of parliament and government is made possible by the wide extension of the judicial right of review, whose scope and significance I have indicated in the Party’s scientific journal.²

Only in the Young Socialist camp is the significance of the basic laws still minimized; attempts are being made to demonstrate that they represented a mixture of contradictory political evaluations, that the legal import of the basic laws is minor and that they do not permit an unambiguous assessment of the Constitution.³

If that were really the case it would not merely be the Constitution that was in difficulties but also the tenets of constitutional theory, for it is the unique business of the legal profession to create a system out of apparently mutually contradictory legal norms and demonstrate which are the underlying tenets of such basic laws. In this, a clear distinction has to be made between the legal validity of the provisions of basic law in the Weimar Constitution and the factual validity of basic-law-norms, for it can easily happen that the real political development and evolution of the provisions of basic law set them in contradiction to that which constitutional authority had expressed in the second part of the Constitution. With the unusually increased significance of the basic laws the publication of a work such as Nipperdey’s commentary on the second part of the Weimar Constitution has the greatest consequence. In fact until today a thorough presentation of the legal, political, social and cultural content of the basic laws has not been made, and the great merit of Nipperdey’s Commentary is that it contains within its three volumes the first attempt at such an interpretation.

Certainly this enterprise could not be completely successful, since, for example, a large number of collaborators were involved in the work who belonged to the most heterogeneous legal and political tendencies. And this is apparent in that, as is stated above, interpretation of the second part of the Constitution must, on that basis alone, seek a unified political adjudication on the part of constitutional authority, while such an adjudication is not realized in the Nipperdey Commentary. Serious contradictions appear among the different collaborators. Similarly, the presentation is of unequal quality. Despite that, this work of commentary must be welcomed without reservation, since it represents the first large-scale attempt at an analysis of the second part of the Weimar Constitution.

Basic Laws and Democracy

The first question that always arises is that of the compatibility of the basic laws with the democratic construction of the Reich laid out in the first part of the Constitution.

Historically, the basic laws derive from the idea of liberalism, and not from that of democracy – as the remarkable but unfortunately too brief contribution from Hans Planitz shows, and whose course on constitutional history at Frankfurt a.M. I remember with pleasure still.⁴ To be sure, the form of democracy that is to be found in the basic laws is personalistic; it is also based upon individual human beings. It does not, however, propose the freedom of the individual, but rather seeks to justify the compulsion of the state. This is classically summarized in Rousseau’s famous statement that man when entering society sheds all his rights, retaining no rights of freedom, and Rousseau plainly states that the purpose of his book is not the justification of individual freedom but of compulsion on the part of the state.⁵ Marx has also indicated in The Holy Family, as well as in the ‘Remarks on the Gotha Programme’, that Liberal rights of freedom are incompatible with the socialist conception of the state – and in no uncertain terms.⁶

For it is the objective of rights of freedom to guarantee to individuals a sphere free from the state, and secure to them a life-purpose (Lebenszweck) in which the state can under no circumstances interfere. Typical rights to freedom in liberalism are thus: right of private property, freedom of trade and enterprise, security of the person and similar rights. These rights are. conceived as anterior to the state; they cannot therefore be subject to the disposition of the state since they are prior to the state and are sacrosanct.

If it were the case that the basic laws of the Weimar Constitution had this character of anteriority to the state and were thus inviolate, then indeed the Weimar Constitution would be in the main a liberal constitution concerned with securing the interests of the propertied bourgeoisie, their safety, private property, freedom of contract and freedom of enterprise.

In truth, however, the basic laws, taken together, are no longer construed in terms of liberties which are anterior to the state. None of the definitions that are to be found in the second part of the Constitution contain a statement that such and such a law (Recht) is inviolable or holy. Even property is not guaranteed in terms of an inviolable basic law – as was the case, for example, in the old Prussian Constitution – but is instead ‘guaranteed by the Constitution’. In just the same way, all the basic laws are secured in terms of the Constitution, that is to say, solely by its second part. Consequently, the extraordinarily stimulating theory of Carl Schmitt is in error when he claims that the specific resolutions that the German people have embodied in their constitution (and, in particular, the political resolutions anchored in the basic laws) cannot be altered, since this would result in the constitution abolishing itself.⁷ Thoma, in his introductory contribution to the first volume of the Nipperdey Commentary, quite rightly rejects this.⁸ If the view of Carl Schmitt were correct, then further development beyond the Weimar Constitution – whether forward towards socialism, or back to a pure bourgeois Rechtsstaat – would not be lawful. The theories of Carl Schmitt compel revolution if a development of the Constitution is desired.

Equality Before the Law

It is clearly impossible to deal with the social implications of all the basic laws within the confines of this essay. For one thing, the writer is not competent in many of the questions that arise, while such a project would in any case burst the bounds necessarily imposed here.

Therefore, the following assessment of the unity of the political resolutions contained in the second part of the Weimar Constitution will be attempted solely with respect to the sphere of economic and labour organization ( Wirtschaftsverfassung und Arbeitsverfassung). The question that will be posed, and which has to be answered is as follows: does the Weimar Constitution resolve itself in favour of the principles of the bourgeois Rechtsstaat —for liberty and property – or does it resolve itself against these principles. If the latter, how does such a resolution positively arise? A start must be made with the fundamental article of basic law, Article 109, the first paragraph of which states: ‘All Germans are equal before the law’. Unfortunately, it is precisely this article that suffers a quite inadequate treatment from Stier-Somlo in Nipperdey’s Commentary.⁹ It would not be inaccurate to say that this contribution is the worst in the three volumes, since it simply summarizes the technical arguments associated with Article 109 more or less exactly, without, however, a single constructive idea being visible.

The interpretation of Article 109 belongs quite rightly to the most heavily disputed problems in the second part of the Weimar Constitution.

Traditionally, the opinion was that the decree on equality in Article 109 was only an injunction to judicial authorities (judiciary and administration) to deal with all citizens equally in terms of the law.¹⁰ It was denied that this article also contained an injunction to the legislature, for example, forbidding it to conclude arbitrary decisions, to cite materially irrelevant precedents, or treat equals as unequal. The viewpoint which had earlier prevailed in particular drew on the old Prussian Constitution, a constitution which similarly contained a fundamental right of equality before the law, a right which contemporary opinion had no doubt applied only to judicial authorities.

The view which prevails today, according to which the right of equality also addresses the legislature, supports itself in particular by reference to practice in Switzerland and America, and by political and sociological considerations.¹¹

The political significance of the issue is unusually great. If the article on equality is directed to the legislature, then the legislature is from the beginning bound by the basic law of equality; for not only through the individual specific basic laws does democracy have restrictions imposed upon it, but also a general limitation is introduced through the main principle of Article 109. If, however, the prevailing opinion is correct, it becomes of decisive importance to develop the material content of the decree on equality.

In the first instance, equality before the law can be defined only negatively. It can imply that each is to be given an equal chance, or, as the Americans term it, each has ‘equal opportunity’.¹² Such equality is solely formal. It does not conflict with the liberal ideology of liberty, for this ideology states exactly the same: that every person is legally free to make contracts, acquire property, establish a commercial enterprise – while disregarding the actual variation, the social differentiation of men and women. If it were only this conception of negative equality that was contained in the decree on equality in the Weimar Constitution, then the statement on equality that is to be found in Article 109 would be nothing more than a further brick in the edifice of the bourgeois Rechtsstaat which is based on liberty and property.

Equality can, however, be something more – a positive equality. It can demand not only that each is provided with the legal potential to share the goods of society, but it can also offer the real possibility implied in the demand. It cannot be denied that the decree on equality has a distinctly positive content. This positive content was first undoubtedly established on a political terrain, in the equality of the right to vote, in the removal of the distinction of ranks (Standesunterschiede) and in equal access to public office.

The only question that arises is whether the decree on equality proposes positive social and economic equality, or at the least requires that a start is made on the realization of social and economic equality. The following will seek to demonstrate that this is in fact the meaning of the decree on equality.

In the last instance, equality is not a mathematical category; it cannot be so since the legal order must of necessity evaluate.¹³ This was very clearly illustrated by the former French Foreign Minister, Viviani, at a congress where the question of sexual equality arose. When one enthusiastic proponent of sexual equality denied every last legal distinction between man and woman, Viviani replied that nevertheless a slight difference existed, interjecting ‘Vive cette petite différence!’ Equality constantly presupposes differences.

Equality before the law is the founding principle of democracy. This is because democracy endorses domination immanently, and not transcendentally. At the basis of the idea of democracy there lies the conception of popular sovereignty, a conception which posits an identity of ruler and ruled. As Lorenz von Stein formulated it, every person, in order to be quite free must participate in popular rule ‘and since the concept of personality accrues to each individual in the same fashion, then the part played by each must be the same for each’.¹⁴

Democracy could, on the one hand, be liberal democracy – that is, a democracy whose effective action was limited to the maintenance of bourgeois security, the securing ofliberty and the property of the possessing strata. Or democracy can be social democracy, whose effective action concerns the promotion of the rise of the working class, securing liberty and property only in so far as they do not hinder the advancement of this class.

Bourgeois democracy, the ideal of the bourgeois Rechtsstaat corresponds with the negative concept of equality: each has the same opportunity in trade and commerce. Within the terms of the bourgeois Rechtsstaat a positive conception of equality is unimaginable. If equality before the law were to be here materially defined – it thus falling to the business of the democratic state apparatus not only to prevent disturbances to the liberty and property of the bourgeoisie but positively to realize further objectives – then an interminable conflict with these liberal rights of liberty would arise, since they are posited as prior to, and beyond the action of, the state. For here indeed, participation in material goods by all – including the fourth estate – would involve in some circumstances interference with the liberty, property and security of the bourgeoisie. American theory and legal practice, which has almost fully accepted the formal concept of equality, justify it by reference to the Declaration of Independence; but this is held only to state that men are created equal, while ignoring the inequality that actually arises after birth.¹⁵

If the wording of Article 109 is examined for its legal content, then at first it says nothing. The wording can just as easily give support to those who see in the decree on inequality an address to the administration as to those who see in it also an injunction addressed to the legislature. The sentence on equality can be seen as expressive of a purely negative or a positive equality. Literal interpretation of this constitutional provision does not, therefore, lead anywhere.

Interpretation of Article 109 must then necessarily be historico-sociological. It presupposes that the content of every legal decree is capable of functional alteration, that a decree’s wording can remain under some circumstances unchanged for centuries, while the content and social meaning of a legal institution can experience decisive transformation. Examples are extraordinarily numerous. The important work by Karl Renner, The Institutions of Private Law and their Social Functions, provides an impressive example of this thesis. But American juridical practice also shows that, in spite of the apparently unchangeable nature of the negative clause on equality, it is none the less quite conscious of its variability. It is there said that, while the concept of equality is indeed invariable, it only means each has and must have equal opportunity; the conditions under which this clause is applied are materially altered by public opinion, with application to individual cases thus possibly differing...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Original Title Page
• Original Copyright Page
• Contents
• Acknowledgements
• Introduction
• 1 The Social Significance of the Basic Laws in the Weimar Constitution
• 2 On the Preconditions and Legal Concept of an Economic Constitution
• 3 Rechtsstaat, The Division of Powers and Socialism
• 4 On the Marxist Theory of the State
• 5 The Limits of Expropriation
• 6 Legality and Legitimacy
• 7 Remarks on Carl Schmitt’s Legalität und Legitimität
• 8 Constitutional Reform and Social Democracy
• 9 Extracts from the Weimar Constitution of August 1919
• Notes
• Index