Paulson 2005

Oxford Journal of Legal Studies, Vol. 25, No. 3 (2005), pp.
525–545
doi:10.1093/ojls/gqi026
The Theory of Public Law in Germany

1914–1945 †
STANLEY L. PAULSON*
1. Introduction
John Austin was appointed on 27 July, 1827 to the Chair of Jurisprudence at the
newly founded University College London. No friend of natural law, he faced
from the beginning a major question: What was he to teach in the name of juris-
prudence? Part of the answer stemmed from what he had learned from Jeremy
Bentham.1 The rest of the answer came from what he would learn during a
sojourn in Germany, where, in 1827–28, he studied pandect law.2 In making his
way to the Continent, Austin was following a well-established practice, lamented
by William Blackstone:
[A] fashion has prevailed, especially of late, to transport the growing hopes of this
island to foreign universities, in Switzerland, Germany, and Holland; which, though
infinitely inferior to our own in every other consideration, have been looked upon as
better nurseries of the civil, or (which is nearly the same) of their own municipal law.3
†
A review of Michael Stolleis, A History of Public Law in Germany 1914–1945, trans. Thomas Dunlap (Oxford:
Oxford UP, 2004). See n 10 for details on Stolleis’s multi-volume History.
* School of Law and Department of Philosophy, Washington University in St. Louis. I wish to express my grati-
tude to the Alexander von Humboldt Foundation (Bonn—Bad Godesberg), which supported, inter alia, this work
through the conferral of the Humboldt Research Prize (2003–04). In my capacity as awardee, I spent the year in
residence at the University of Kiel, and I remain grateful to my host there, Professor Robert Alexy, for his gracious
hospitality. And I am grateful to Bonnie Litschewski Paulson, not least of all for her fine work on the quotations
translated from the German.
1
Austin, in Sarah Austin’s words, ‘looked up to [Bentham] with profound veneration’ as ‘the most original and
inventive of all writers on Law’. Janet Ross, Three Generations of English Women (London: T. Fisher Unwin, 1893),
382. On Bentham’s role vis-à-vis Austin, see Stanley L. Paulson, ‘Legal Theory’ in Thomas Baldwin (ed.), The
Cambridge History of Philosophy 1870–1945 (Cambridge: Cambridge UP, 2003), 309–17 at 309–10.
2
‘Pandect law’ (Pandektenrecht) refers to the law stemming from the piecemeal reception of Roman law that took
place in Europe prior to codification. ‘Pandect’, from the Greek, is familiar as a name for Justinian’s Digests or
‘Pandects’. On Austin in Germany, see W. L. Morison, John Austin (London: Edward Arnold, 1982) at 17–20, 60–63,
and Andreas B. Schwarz, ‘John Austin and the German Jurisprudence of his Time’, Politica, 1 (1934–35), 178–99.
Schwarz is surely right when he remarks, ibid 178, that Austin was largely unknown on the Continent. Still, no less
a figure than Karl Salomo Zachariae saw fit to write, in 1833, a probing—and on its own merits rewarding—review
of Austin’s Province of Jurisprudence Determined, which had appeared a year earlier. See Zachariae, in Kritische
Zeitschrift für Rechtswissenschaft und Gesetzgebung des Auslandes, 5 (1833), 199–212.
3
William Blackstone, Commentaries on the Laws of England, 4 vols (Oxford: Clarendon Press, 1765–69), vol. 1,
p 5 (std. pagination).
 The Author 2005. Published by Oxford University Press. All rights reserved. For permissions,
please e-mail: journals.permissions@oxfordjournals.org
526 Oxford Journal of Legal Studies VOL. 25
The exodus from England to the Continent was not merely a fashion, as Blackstone
writes, it was the reflection of a problem. Until Austin and Andrew Amos began
lecturing at University College London, there had been, in England, ‘for many
years no effective public teaching of law anywhere’.4
The contrast with Germany could scarcely have been greater. Its universities
knew no rival in academic law. What is more, its academic lawyers were busy. In
the decades following Austin’s visit, Georg Friedrich Puchta5 and the early
Rudolf von Jhering,6 in particular, succeeded in transforming the field by ‘ren-
dering the law scientific’ (die Verwissenschaftlichung des Rechts). By the middle of
the 19th century, legal science with its ‘constructivist’ method7 was well
entrenched in civil law,8 and a bit later the machinery of legal science was carried
over to public law,9 with all that this ostensibly scientific turn in both fields
would portend for our Continental colleagues’ conception of the law.
Michael Stolleis writes about this conception of the law in the latter volumes
of his monumental treatise on the History of Public Law in Germany.10 Notwith-
standing its title, the treatise is in fact largely a history of the theory of public law,
with ‘theory’ very broadly conceived to include academic law and its accoutre-
ments in the law faculties of the German and Austrian universities. And this is all
to the good. Stolleis’s third volume, my topic here, covers the period 1914–45, an
extraordinarily rich period for the theory of public law until, on 30 January,
1933, the roof caved in. Two foci are dominant in the book: the theory of public
law, in the Weimar period in particular, and its fate after the Nazis came to
power. Still, to speak in terms of two foci is misleading, for Stolleis takes up a
4
Barry Nicholas, ‘Jurisprudence’ in M. G. Brock and M. C. Curthoys (eds), The History of the University of
Oxford, vol. 7: Nineteenth-Century Oxford, Part 2 (Oxford: Clarendon Press, 2000), 385–96 at 385.
5
After literally 150 years of neglect accompanied by a caricature of his views—albeit a decidedly prominent cari-
cature, reflected in the boilerplate pronouncements of the foremost theorist of the day, Paul Laband (see quotation
in text at n 14)—Puchta has suddenly emerged as the subject of no fewer than three major studies, in which, inter
alia, the caricature is challenged: Hans-Peter Haferkamp, Georg Friedrich Puchta und die ‘Begriffsjurisprudenz’
(Frankfurt: Klostermann, 2004); Thomas Henkel, Begriffsjurisprudenz und Billigkeit. Zum Rechtsformalismus der Pan-
dektistik nach G. F. Puchta (Cologne: Böhlau, 2004); Christoph-Eric Mecke, ‘Begriff und System des Rechts bei
Georg Friedrich Puchta’ (dissertation Univ. Göttingen, 2006).
6
For a rewarding statement, see Alexander Somek, ‘Legal Formality and Freedom of Choice. A Moral Perspec-
tive on Jhering’s Constructivism’ (2002) 15 Ratio Juris, 52–62.
7
The ‘constructivist’ method is closely associated with the early von Jhering. See the entertaining lines from his
‘Die civilistische Konstruktion’ (1861) in Hans Kelsen, Introduction to the Problems of Legal Theory, a translation of
the 1st edn of the Reine Rechtslehre, trans. Bonnie Litschewski Paulson and Stanley L. Paulson (Oxford: Clarendon
Press, 1992) at Appendix I, no. 7 (136–7). Here von Jhering is dismantling his own constructivist system, and he
takes to twitting his former allies, the constructivists.
8
See Franz Wieacker, History of Private Law in Europe, trans. Tony Weir (Oxford: Clarendon Press, 1996) at
§§ 20–4 (279–370). See also Jan Schröder, Recht als Wissenschaft. Geschichte der juristischen Methode vom Humanismus
bis zur historischen Schule (Munich: C. H. Beck, 2001) at 191–271, which, as in the case of Stolleis’s work, reflects
the most recent scholarship.
9
See Stolleis, History, vol. 2 (n 10) at 315–28. A detailed statement is found in Walter Pauly, Der Methodenwan-
del im deutschen Spätkonstitutionalismus (Tübingen: J. C. B. Mohr, 1993) at 92–167.
10
The first volume of Stolleis’s History, entitled Reichspublizistik und Policeywissenschaft 1600–1800, was published
in 1988; no English translation exists. The second volume, published in 1992, appeared in English as Public Law in
Germany 1800–1914, trans. Pamela Biel (New York and Oxford: Berghahn Books, 2001). The third volume, being
reviewed here, was published in 1999 (see n 106) and appeared in English in 2004 (see the first note above, desig-
nated with †). I refer to the English-language volumes with the abbreviations ‘History, vol. 2’ and ‘History, vol. 3’.
All page references in the text are to volume 3.
AUTUMN 2005 The Theory of Public Law in Germany 1914–1945 527
wealth of topics—the administration of law during World War I, the November
Revolution, Hugo Preuß and the creation of a new constitution, texts on and
interpretations of the new constitution, the constitutions of the Länder (or fed-
eral states), the methodological disputes in Weimar Germany, the theory of and
texts on administrative law, developments in constitutional and administrative
law in Austria, expulsions from the universities following the Nazi takeover, law
journals and their fate in the Nazi period, the destruction of legal science as a
discipline under the Nazis, and a great deal more.
Confronted with this range of topics, the reviewer is called upon to choose a
handful of themes that will be of special interest to readers. It goes without say-
ing that the choices will reflect the reviewer’s own interests, too. I have selected,
in section 2 of what follows, fin de siècle legal positivism in public law, in section
3, the methodological disputes of the Weimar period, in section 4, the formation
of the Weimar Constitution along with one of the politico-constitutional ques-
tions stemming from it, in section 5, aspects of the Vienna School of Legal The-
ory as well as a puzzle about Hans Kelsen’s role in the Weimar period, in section 6,
the destruction of a discipline—public law as a field within legal science—in the
Nazi period, and, in section 7, a short conclusion that includes some remarks on
Thomas Dunlap’s fine translation of the book.
The theme of section 2, the status of legal positivism in public law at the turn
of the 20th century, draws in part on Stolleis’s second volume. He takes up the
theme again at the beginning of his third volume, thereby setting the stage for all
that follows in the theory of public law in Weimar Germany.
2. Fin de siècle Legal Positivism in Public Law

Fin de siècle legal positivism11 in public law took its cues, above all, from Paul
Laband (1838–1918).12 His well-known lines in the Foreword to his great treatise,
11
‘Legal positivism’ is used in the secondary literature on fin de siècle German-language legal theory in a bewilder-
ing variety of ways: (1) Laband qua legal positivist is defending Begriffsjurisprudenz or the ‘jurisprudence of con-
cepts’. By contrast, (2) statutory positivism (Gesetzespositivismus), a position closer to ‘legal dogmatics’, has it that
the law (das Recht) is nothing but statutory law (das Gesetz). (3) Fact-based legal positivism, sharply attacked by
Gustav Radbruch, Rechtsphilosophische Tagesfragen, Hidehiko Adachi and Nils Teifke (eds) (Baden-Baden: Nomos,
2004), 31–35 et passim, and by Hans Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts (Tübingen:
J. C. B. Mohr, 1920), §§ 21–24 (85–100), is evident in much of the Continental literature from this period. It
counts as a species of naturalism and is properly understood as including all fact-based theories of law. Finally, (4)
Hans Kelsen qua legal positivist, see ibid, is defending normative positivism, recognizably positivistic (by our stan-
dards today) in its defence of the separation principle, while, as already noted, emphatically rejecting the fact-based
species of positivism at (3). For further distinctions and useful discussion, see Robert Alexy, The Argument from
Injustice. A Reply to Legal Positivism, trans. Bonnie Litschewski Paulson and Stanley L. Paulson (Oxford: Clarendon
Press, 2002); Annette Brockmöller, Die Entstehung der Rechtstheorie im 19. Jahrhundert in Deutschland (Baden-Baden:
Nomos, 1997); Andreas Funke, Allgemeine Rechtslehre als juristische Strukturtheorie (Tübingen: Mohr Siebeck,
2004); and Walter Ott, Der Rechtspositivismus, 2nd edn (Berlin: Duncker & Humblot, 1992). I am using ‘legal pos-
itivism’ as Stolleis uses it, namely, to refer to (1), a view that represents an important part of his narrative.
12
On Laband, see the informative statements in Stolleis, History, vol. 2 (n 10) at 323–28. Detailed statements are
found in Pauly, Der Methodenwandel im deutschen Spätkonstitutionalismus (n 9) at 168–245, and in Christoph
Schönberger, Das Parlament im Anstaltsstaat (Frankfurt: Klostermann, 1997) at 83–182.
Public Law of the German Reich,13 count as an unqualified endorsement of

Begriffsjurisprudenz or the ‘jurisprudence of concepts’:
Dogmatics is not the sole dimension but is certainly one of the dimensions of legal
science. The scientific task of the dogmatics of a particular body of positive law lies
in the construction of legal institutes (Rechtsinstitute), in tracing individual legal
norms back to more general concepts and, on the other hand, in deriving from
these concepts the consequences that follow. Except for research into prevailing
positive-law norms, that is, [arriving at] a thorough knowledge and mastery of the
material at hand, the task of dogmatics is a purely logical, intellectual activity. In
order to carry out this task, there is no other means than logic, nothing can replace
logic toward this end. As valuable as historical, political, and philosophical consid-
erations in and of themselves may be, they are all insignificant for the dogmatics of
concrete legal material, serving only too often to conceal the paucity of constructiv-
ist work.14
To be sure, Laband’s dictum is a caricature,15 as some of his own work makes

abundantly clear (see 25).16 Still, with German professors of public law taking
their conception of the field from the theory of public law, Laband’s statement
was influential, an influence still evident in the 1920s. For example, Stolleis
quotes from Rudolf von Laun, who, in 1922, wrote that legal science ‘counts as
“scientific” only in so far as it restricts itself to statutory law and logic’ (Gesetz
und Logik). Laun continues: ‘This, despite criticism from the proponents of the
Free Law movement, is essentially the predominant view of our guild of legal
scholars’.17
Stolleis is quick to add that it would be a mistake to suppose that Laband’s dic-
tum was altogether representative of the early 1920s (see 18, 24–25). Laun him-
self was favourably disposed to a sociological point of view—alongside, as he puts
13
Laband’s treatise, Das Staatsrecht des Deutschen Reiches, first appeared in 1876–82. The 5th edn in 4 vols
(Tübingen: J. C. B. Mohr, 1911) is most frequently cited.
14
Ibid, vol. 1, Foreword (repr. from the 2nd edn, where it first appeared), vii–x at ix (emphasis in original) (the
2nd edn of Laband’s treatise appeared in 1888–91). For a comparable statement, see Paul Laband, Staatsrechtliche
Vorlesungen, Bernd Schlüter (ed.) (Berlin: Duncker & Humblot, 2004) at 159 (these lectures of Laband’s appear
for the first time in Schlüter’s volume).
15
See, in particular, Otto von Gierke, ‘Labands Staatsrecht und die deutsche Rechtswissenschaft’, Schmollers
Jahrbuch für Gesetzgebung, Verwaltung und Volkswirtschaft im Deutschen Reiche, 7 (1883), 1097–195. Cp. Hugo
Preuß, ‘Zur Methode juristischer Begriffskonstruktion’, ibid, vol. 24 (1900), 359–72 at 360–61, who criticizes
Laband and the fin de siècle legacy of a ‘legal culture of purity’. On Gierke’s criticism of Laband, see Bernd
Schlüter, Reichswissenschaft. Staatsrechtslehre, Staatstheorie und Wissenschaftspolitik im Deutschen Kaiserreich am
Beispiel der Reichsuniversität Straßburg (Frankfurt: Klostermann, 2004) at 375–87.
16
(Page references in the text are to Stolleis, History, vol. 3.) Apart from the fact that Laband’s own work belies
the caricature, legal historians have undertaken a major reassessment of legal positivism qua Laband’s dictum: ‘So-
called Gerber-Laband positivism, with the exiling of all historical, philosophical, and political elements from [legal
science] that are usually ascribed to it, did not, in point of fact, ever exist in the decisive form often described. This
form is rather a legend that can be traced back to the twentieth-century opponents of positivism.’ Stolleis, History,
vol. 2 (n 10), 446.
17
Rudolf von Laun, ‘Der Staatsrechtslehrer und die Politik’, Archiv des öffentlichen Rechts, 43, N.F. 4 (1921),
145–99 at 154, quoted in Stolleis, History, vol. 3 (n 10), 24–25 (trans. altered) (‘N.F’. refers to the journal’s new
series, with—from 1921 through 1963—a new numbering of volumes running alongside the original numbering).
On Laun, see ibid at 284–85.
it, ‘legal dogmatics’, the traditional point of view18—and his statement on the
ostensibly constructivist character of the law, following Laband’s dictum, has to
be understood as a report, not an endorsement. Other public law theorists, among
them some who would play a key role in the Weimar methodological disputes,
either—like Heinrich Triepel (1868–1946)19—had emancipated themselves from
the ‘jurisprudence of concepts’ qua Laband’s dictum or—like Hans Kelsen
(1881–1973)—had never subscribed to that view in the first place. The early work
of Triepel and of Kelsen is instructive on the point and merits a closer look.
In his early treatise, International Law and State Law (1899),20 which set the
stage for the modern European debate on the unity of municipal and interna-
tional law,21 Triepel was still very much under the influence of his teacher Karl
Binding and Binding’s constructivism.22 A fairly sophisticated version of the
constructivist method was evident in Triepel’s treatise, where he proceeded by
defining first municipal law and then international law. The law of a given state
stems solely from that state’s will,23 whereas the law of nations stems solely from
‘relations between states’. The respective sources of municipal law and interna-
tional law are different, and so ‘their respective content must be different, too’.24
Thus, Triepel concluded, the only defensible position on the question of the
unity of law is dualism. International law and municipal law are ‘two spheres
that at best adjoin one another but never intersect’.25
This emphasis on definitions, concepts, and the conclusions that can be
drawn from them did not last long in Triepel’s case. Influenced by Philipp Heck
and Max von Rümelin of the Tübingen School of Interest Jurisprudence,26
Triepel transformed his methodology in major works of 1907 and 1908.27 Far
18
Rudolf von Laun, ‘Eine Theorie vom natürlichen Recht’, Archiv des öffentlichen Rechts, 30 (1913), 369–406 at
405; see also Laun’s review of Hans Kelsen, Hauptprobleme der Staatsrechtslehre, and of Ignatz Kornfeld, Grundzüge
einer allgemeinen Lehre vom positiven Rechte auf soziologischer Grundlage, in Grünhuts Zeitschrift für das privat- und
öffentliche Recht der Gegenwart, 39 (1912), 312–35.
19
On Triepel, see the fine monograph by Ulrich M. Gassner, Heinrich Triepel. Leben und Werk (Berlin: Duncker
& Humblot, 1999).
20
Heinrich Triepel, Völkerrecht und Landesrecht (Leipzig: C. L. Hirschfeld, 1899).
21
For an illuminating statement of the competing positions, see the paper by Kelsen’s erstwhile student from his
Geneva period, Joseph G. Starke, ‘Monism and Dualism in the Theory of International Law’, British Year Book of
International Law, 17 (1936), 66–81, repr. in Normativity and Norms. Critical Perspectives on Kelsenian Themes,
Stanley L. Paulson and Bonnie Litschewski Paulson (eds) (Oxford: Clarendon Press, 1998), 537–52. See also ref-
erences at n 84.
22
See Gassner, Heinrich Triepel (n 19) at 40–41, 447. On Binding, see Daniela Westphalen, Karl Binding (1841–1920)
(Frankfurt: Peter Lang, 1989). Binding’s theory of norms has attracted a great deal of attention over the years; see,
in particular, Armin Kaufmann, Lebendiges und Totes in Bindings Normentheorie (Göttingen: Otto Schwartz, 1954),
and Andreas Hoyer, Strafrechtsdogmatik nach Armin Kaufmann (Berlin: Duncker & Humblot, 1997).
23
Triepel, Völkerrecht und Landesrecht (n 20), 9.
24
Ibid, 18, 19.
25
Ibid, 111. On Triepel’s position, see Theo Öhlinger, Der völkerrechtliche Vertrag im staatlichen Recht (Vienna
and New York: Springer, 1973) at 43–47; Gassner, Heinrich Triepel (n 19) at 446–69.
26
Representative of the Tübingen School is Philipp Heck, ‘The Formation of Concepts and the Jurisprudence of
Interests’, trans. M. Magdalena Schoch, in Schoch (ed)., The Jurisprudence of Interests (Cambridge, Mass.: Harvard
UP, 1948), 99–256 (Heck’s treatise was first published in 1932).
27
Heinrich Triepel, Unitarismus und Föderalismus im Deutschen Reiche (Tübingen: J. C. B. Mohr, 1907); Triepel,
‘Die Kompetenzen des Bundesstaats und die geschriebene Verfassung’ in Staatsrechtliche Abhandlungen. Festgabe für
Paul Laband, 2 vols [no editor] (Tübingen: J. C. B. Mohr, 1908), vol. 2, 247–335.
from ruling out ‘subjective value judgments’, he now endorses them as neces-
sary.28 In the words of Henrich Mitteis many years later, Triepel takes up at this
point his ‘relentless struggle against formalism and the cult of conceptualism’ in
public law.29
Hans Kelsen’s early work counts as an example of the second pattern vis-
à-vis Laband’s dictum. That is, Kelsen never was a proponent of the ‘juris-
prudence of concepts’. The popular view to the contrary notwithstanding,30 Kelsen
never flirted with, much less did he endorse, the idea that the legal system
must somehow be understood ‘deductively’, and he rightly objected to the
charge of ‘Labandism’ with its formalist connotations.31 In debunking the
myth captured in the popular view of Kelsen, his distinction between types of
system is telling. While the static, non-legal system is properly understood in
terms of deduction (‘Deduktion’, ‘Ableitung’), Kelsen distinguished the dynamic,
legal system on precisely this point, as not proceeding deductively.32 Kelsen was
indeed engaged in concept formation from the beginning, common ground
among fin de siècle public law theorists, but this by itself scarcely amounts to an
endorsement of Begriffsjurisprudenz or the ‘jurisprudence of concepts’ qua
Laband’s dictum.
Even if, in the 1920s, the work of major figures in the field did not reflect
Laband’s dictum, as Stolleis makes clear (see 18, 24–5, 30–5, 46, 146–51, 161–78),
the real turbulence in the field, marked by the Weimar methodological disputes,
awaited the fourth annual meeting of the Association of German Public Law
Teachers, held in Münster in March of 1926.
3. Methodological Disputes of the Weimar Period

The idea of establishing the Association of German Public Law Teachers had
been proposed by Triepel in 1921, and, with the support of his colleagues,
Triepel drafted the organization’s by-laws a year later (179). The Association
served as the main forum for politico-constitutional discussion until 1931 (see
178–94), when it fell into limbo (see 327–31). It was revived in 1949 in the Federal
Republic. Its earliest annual meetings were relatively uneventful, but at the 1926
meeting Erich Kaufmann (1880–1972)33 delivered a lecture with natural law
trappings that prompted an extraordinarily heated exchange of views.
28
See ibid at 287.
29
Tagesspiegel (Berlin), 7 December, 1946, quoted in Gassner, Heinrich Triepel (n 19), 231.
30
See text at nn 86–90.
31
See Hans Kelsen, ‘The Pure Theory of Law, “Labandism”, and Neo-Kantianism. A Letter to Renato Treves’
in Normativity and Norms (n 21), 169–75 (Kelsen’s letter was written in 1933).
32
See e.g. Kelsen, Introduction to the Problems of Legal Theory (n 7) at §§ 27–28 (55–57).
33
On Kaufmann, see Stolleis, History, vol. 3 (n 10), 156–57, 159, 166–67, 261–62, et passim, and Manfred Friedrich,
‘Erich Kaufmann (1880–1972). Jurist in der Zeit und jenseits der Zeiten’ in Helmut Heinrichs et al. (eds), Deutsche
Juristen jüdischer Herkunft (Munich: C. H. Beck, 1993), 693–704. There is a rewarding statement on Kaufmann’s
work in international law in Martti Koskenniemi, The Gentle Civilizer of Nations. The Rise and Fall of International
Law 1870–1960 (Cambridge: Cambridge UP, 2002) at 249–61.
In his early treatise, The Nature of International Law and the Clause rebus sic stan-
tibus (1911), Kaufmann had defended the view that what is lawful in the interna-
tional sphere is determined by which state’s exercise of power has prevailed. Thus,
‘victory in war proves to be confirmation of the idea of law, proves to be the ulti-
mate norm that decides which of the states is lawful’.34 Kaufmann’s penchant for
power politics, if not his defence of law as power, was also given expression in
what he had to say about domestic law and politics, reflecting, in particular, his
cynical attitude toward parliamentary government and political parties.35
In light of this background, Kaufmann’s conversion at the 1926 meeting in
Münster was remarkable. Save for his wellnigh pathological contempt for legal
positivism of the Kelsenian variety,36 everything had changed. Kaufmann is now
prepared to defend the equality provision, article 109 of the Weimar Constitu-
tion,37 arguing from natural law premisses. Stolleis explains why the provision
had become a focal point.
Its explosive political power did not become apparent until the effort was made to con-
tain the (emergency) inflation legislation of 1923. The political discrepancy between a
poorly functioning parliamentary system that, most importantly, was regarded with
suspicion by the citizenry, and the status concerns and the expectations of individual
groups turned the question of the extent to which the legislator could pursue equality
or create inequality into one of the most sensitive issues.38
In his spirited defence of the equality provision,39 Kaufmann’s starting point

was not naïve, although the arguments he adduced on behalf of his new position
quickly got out of hand. Principles of law, he asserts, stand above statutory law
and bind the lawmaker.40 The equality provision, too, is to be understood as a
principle of law. Differential treatment is acceptable only if it is ‘just’.41 But how
is ‘just’ to be defined? It cannot be defined, Kaufmann answers, for nothing that is
‘known directly’ is definable. ‘The good, the true, and the beautiful’ are also
34
Erich Kaufmann, Das Wesen des Völkerrechts und die Clausula rebus sic stantibus (Tübingen: J. C. B. Mohr,
1911), 153 (emphasis in original). For sharply-worded criticism of Kaufmann, see Kelsen, Das Problem der Sou-
veränität (n 11), § 54 (at 265).
35
See Stolleis, History, vol. 3 (n 10) at 28, 34–35, 52–53, 65-66, 85, 105, 156, 166–67; see also Marcus Llanque,
Demokratisches Denken im Krieg. Die deutsche Debatte im Ersten Weltkrieg (Berlin: Akademie Verlag, 2000) at 95,
126, 212–16.
36
See text at nn 83–86. The distinction between different species of legal positivism (see n 11) looms large here.
Until his conversion, Erich Kaufmann was himself a legal positivist, though hardly a legal positivist who had any-
thing in common with Kelsen. See, as capturing Kaufmann’s positivism, species (3) in my scheme at n 11.
37
‘All Germans are equal before the law.’ (This is the first of six paragraphs in article 109.)
38
Stolleis, History, vol. 3 (n 10), 182–83 (trans. altered).
39
Erich Kaufmann, ‘Die Gleichheit vor dem Gesetz im Sinne des Art. 109 der Reichsverfassung’, Veröffentlichun-
gen der Vereinigung der Deutschen Staatsrechtslehrer, 3 (1927) [abbrev. below as: Gleichheit], 2–24, repr. in
Kaufmann, Gesammelte Schriften, A. H. van Scherpenberg et al. (eds), 3 vols (Göttingen: Otto Schwartz, 1960)
[abbrev. below as: Ges. Schr.], vol. 3, 246–65. For references to a good bit of the rest of the Weimar literature on
article 109, see Oliver Lepsius, Die gegensatzaufhebende Begriffsbildung (Munich: C. H. Beck, 1994) at 348–49 n 25.
40
This insight, expressly rejecting the thesis of statutory positivism (see n 11), was constitutionalized in the post-
World War II Grundgesetz or Basic Law at article 20.3: ‘Legislation shall be subject to the constitutional order; the
executive and the judiciary shall be bound by statute [Gesetz] and the law [Recht].’ On the import of article 20.3,
see e.g. Alexy, The Argument from Injustice (n 11) at 8–10.
41
Kaufmann, Gleichheit (n 39), 10 (emphasis in original), repr. Ges. Schr. (n 39), vol. 3, 253–54.
known directly, which is to say that they are not definable either.42 What is really
at stake is not a definition but a just decision, and this ‘can only be taken by a
just personality’. What is more, there is ‘no subjectivism in this’. Rather, it is sim-
ply recognition ‘of the fact that justice is something creative, not the mechanical
application of rigid, abstract norms’.43 From a ‘just personality’, Kaufmann moves
to a ‘just judicial personality’, contending that it is better to shape ‘the soul of
the young jurist on the basis of the great precedents of outstanding judicial personal-
ities’ than to burden him with the familiar ‘juridico-technical training’. Who are
these personalities? Kaufmann refers to ‘the method of the Romans and the
Anglo-Saxons, the two greatest peoples of the law’.44 In closing, Kaufmann adds
that the ‘good and just judge’ serves ‘eternal values’ and is ‘called to help build a
world, a material order, that corresponds to the idea of justice’.45
Hans Nawiasky (1880–1961),46 delivering the second lecture at the 1926
meeting, set the stage for the controversy that ensued. He announced that while
he himself was a ‘sceptic, that is, a positivist’, Kaufmann was ‘a natural law the-
orist’. For Kaufmann, ‘the law and ethics form, in a certain sense, a unity’,
whereas, for Nawiasky, these were altogether separate.47 Nawiasky then pro-
ceeded to develop a traditional, ‘historico-systematic’ interpretation of equality.
He first distinguished three historical readings of the concept—‘personal equal-
ity’ (elimination of class-based privilege), equality before the law, and material
equality—and then argued that the first two readings, but not the third, gain
support from other provisions of the Constitution.
Unlike Nawiasky’s plain-spoken reply, Kelsen’s answer to Kaufmann came as
a blockbuster. Ignoring the equality clause altogether, Kelsen proclaimed that
‘[t]he most important problem that Mr. Kaufmann has touched upon in his lecture
seems to me to be the problem of positivism’.48 Understandably, Kelsen saw
Kaufmann’s ‘audacious’ claim that positivism was finished49 as addressed to him.
I am namely a positivist . . . Positivism is not finished and never will be, no more than
natural law is finished or ever will be. This opposition is eternal. The history of ideas
shows simply that now the one standpoint, now the other, enjoys priority. Indeed, it
appears to me that this is not simply an opposition in the history of ideas but is an
opposition that lives in the heart of every thinking person. Natural law is juridical met-
aphysics. And—following a period of positivism and empiricism—the call for meta-
physics is heard again, everywhere and in all fields of enquiry.50
42
43
44
Kaufmann, Gleichheit (n 39), 22 (emphasis in original), repr. Ges. Schr. (n 39), vol. 3, 264.
45
Kaufmann, Gleichheit (n 39), 23 (emphasis in original), repr. Ges. Schr. (n 39), vol. 3, 265.
46
On Nawiasky, see Hans F. Zacher, ‘Hans Nawiasky (1880–1972). Ein Leben für Bundesstaat, Rechtsstaat und
Demokratie’ in Deutsche Juristen jüdischer Herkunft (n 33), 677–92.
47
Hans Nawiasky, ‘Die Gleichheit vor dem Gesetz im Sinne des Art. 109 der Reichsverfassung’, Veröffentlichun-
gen der Vereinigung der Deutschen Staatsrechtslehrer, 3 (1927), 25–43 at 25.
48
Hans Kelsen, Aussprache [contribution to the discussion following Kaufmann’s lecture], Veröffentlichungen der
Vereinigung der Deutschen Staatsrechtslehrer, 3 (1927), 53–55 at 53 (emphasis in original).
49
Ibid.
50
Ibid, 53–54 (emphasis in original).
Kelsen confirms this position in the closing lines of his reply to Kaufmann:
The problem of natural law is the eternal problem of what lies behind positive law. And
whoever seeks the answer will find, I fear, neither the absolute truth of metaphysics nor
the absolute justice of natural law. Whoever lifts the veil without closing his eyes will
confront the gaping stare of the Gorgon’s naked power.51
As Stolleis writes, ‘[i]n the passionate debate that followed these lectures, the
two camps took shape’ (185). On the one side were Kelsen and Nawiasky, and also
Gerhard Anschütz, Walter Jellinek, Richard Thoma, and others. On the other side
was Hermann Heller,52 who, notwithstanding a political orientation close to
Kelsen’s, ‘had long taken an anti-positivist stance [and] surely could not declare him-
self to be on Kelsen’s side in this confrontation’ (ibid). Carl Schmitt, though not
present at the 1926 meeting, was, to be sure, on the other side, as were Rudolf
Smend, Heinrich Triepel, and Kaufmann himself, his conversion now a fait accompli.
I return to both Schmitt and Smend below. Specifically, in the section that
follows, Carl Schmitt stands opposed to Hans Kelsen in their exchange on the
question of who ought to be the guardian of the Weimar Constitution. Then, in
section 5, Rudolf Smend turns up as one of Kelsen’s outspoken opponents, and
a text of Smend’s invites attention to the puzzle of why Kelsen was so thoroughly
despised by most of his opponents in the Weimar methodological disputes.
4. The Weimar Constitution and a Fundamental

Politico-Constitutional Debate
The presence of a military dictatorship, the prospect of a transition to a parlia-
mentary system, and the question of a new constitution for Germany were dis-
cussed at length during World War I. Views covered the political spectrum,
including those of Gerhard Anschütz,53 for example, who was receptive to the
idea of parliamentary government, and those of Erich Kaufmann, who (at that
time) was not. Max Weber, too, played a central role in these discussions.54
51
Kelsen, Aussprache (n 48), 54–5 (emphasis in original). Kelsen is usually understood as doing battle on both
fronts in the juridico-philosophical tradition—against fact-based legal positivism (see n 11) and against natural law
theory. If, however, natural law theory collapses into ‘subjectivism’—as Kelsen contends, expressly rejecting
Kaufmann’s view (see text preceding n 43)—then it might appear as though there were no second, distinct front
after all. Such an appearance, however, represents a confusion of the pre-analytical state of affairs—two fronts—with
the upshot of Kelsen’s criticism, namely, that neither of the traditional theories survives. On the standard reading of
Kelsen’s two fronts, see Joseph Raz, ‘The Purity of the Pure Theory’, Revue internationale de philosophie, 35 (1981),
441–59, repr. in Normativity and Norms (n 21), 237–52; Horst Dreier, Rechtslehre, Staatssoziologie und Demokratie-
theorie bei Hans Kelsen (Baden-Baden: Nomos, 1986, 2nd printing 1990), 28–29, 42–43, et passim; Stanley L. Paul-
son, ‘The Neo-Kantian Dimension of Kelsen’s Pure Theory of Law’ (1992) 12 OJLS 311–32, esp. 313–22.
52
On Heller, see Stolleis, History, vol. 3 (n 10) at 175 n 160, and Christoph Müller, ‘Hermann Heller
(1891–1933). Vom liberalen zum sozialen Rechtsstaat’ in Deutsche Juristen jüdischer Herkunft (n 33), 767–80.
53
On Anschütz, see Horst Dreier, ‘Ein Staatsrechtslehrer in Zeiten des Umbruchs: Gerhard Anschütz
(1867–1948)’, Zeitschrift für Neuere Rechtsgeschichte, 20 (1998), 28–48.
54
See Llanque, Demokratisches Denken im Krieg (n 35) at 179–91, 210–14, 237–63, 284–90, 312–20; and see
generally Wolfgang J. Mommsen, Max Weber and German Politics, 1890–1920, trans. Michael S. Steinberg
(Chicago: University of Chicago Press, 1984).
Then, ‘in the critical phase leading up to the adoption of the constitution, with
[developments that included] the convocation of the National Assembly in Wei-
mar, interest in constitutional questions rose dramatically’ (53). Unlike the ‘pro-
fessorial parliament’ of 1848, which had deliberated in a leisurely way, this time
around it was clear that ‘fundamental decisions of principle [would have to be]
condensed into just weeks, indeed, days’ (54).
The key figure, the framer of the Weimar Constitution, was the remarkable
Hugo Preuß (1860–1925).55 Profoundly influenced by Otto von Gierke in legal
theory56 and bourgeois left-liberal in his political leanings, Preuß had held a pro-
fessorship at the new Academy of Commerce in Berlin since 1906.57 On 15
November, 1918, he was appointed State Secretary of the Reich Office of the
Interior, an appointment designating him primarily responsible for drafting the
new constitution (55).
In his first major treatise,58 Preuß had already rejected the traditional concept
of sovereignty with its corollary that authority be imposed ‘from above’. Instead,
he favoured an ‘internally graduated pluralism of human associations’59 with
political participation developing ‘from below’, as Stolleis neatly puts it. The res-
ult, in practical terms, was a ‘strengthening of communal self-government’ (55),
a motif to which Preuß devoted his second major treatise.60 These ideas hardly
appealed to the establishment, those with whom Preuß would be negotiating in
drafting the new constitution. It came then as no surprise that Preuß failed to
win support for his plan to break up the huge state of Prussia, four-sevenths of
the entire German federation.61 The final draft of the Weimar Constitution
55
Having long been a victim of scholarly neglect, Hugo Preuß is now enjoying a fair bit of attention, and, thanks
to the initiative of Christoph Müller, an edition of Preuß’s collected works is being prepared. On Preuß, see Stolleis,
History, vol. 3 (n 10) at 53–60, and Ernest Hamburger, ‘Hugo Preuß. Scholar and Statesman’, Leo Baeck Institute,
Year Book, 22 (1975), 179–206. In the older literature from the Federal Republic, see Günther Gillessen, Hugo
Preuß (Berlin: Duncker & Humblot, 2000) (completed in 1955), and Siegfried Grassmann, Hugo Preuss und die
deutsche Selbstverwaltung (Lübeck and Hamburg: Matthiesen, 1965). In the recent literature, see the full-dress
monographic study of Preuß by Detlef Lehnert, Verfassungsdemokratie als Bürgergenossenschaft (Baden-Baden:
Nomos, 1998); Llanque, Demokratisches Denken im Krieg (n 35) at 68–102, 168–79, 316–20, et passim; Dian Schefold,
‘Hugo Preuss (1860–1925). Von der Stadtverfassung zur Staatsverfassung der Weimarer Republik’ in Deutsche
Juristen jüdischer Herkunft (n 33), 429–53; Schönberger, Das Parlament im Anstaltsstaat (n 12) at 367–404; Vom
Untertanenverband zur Bürgergenossenschaft, Detlef Lehnert and Christoph Müller (eds) (Baden-Baden: Nomos, 2003).
56
On Gierke, see the lucid statement in Stolleis, History, vol. 2 (n 10), 337–40.
57
Although Preuß had completed, in 1889, the Habilitation (proceedings, including a post-doctoral dissertation,
that culminate in the venia legendi or state license to lecture at the university), he was never offered a university
post, despite the fact that his Habilitationsschrift (see n 58) was an outstanding treatise and despite the fact that Otto
von Gierke at the University of Berlin stood behind him. A part of the explanation stems from the ‘Preuß case’ of
1889. The Prussian Ministry of Culture had announced that the work of Jewish school teachers in Berlin was
henceforth to be limited to religious instruction. The teachers protested, and Preuß lent them his support, which
caused an uproar. Efforts in 1896, 1902, and 1910 at the University of Berlin to have him appointed as professor
were defeated by the Ministry. See Gillessen, Hugo Preuß (n 55) at 64–66.
58
Hugo Preuß, Gemeinde, Staat, Reich als Gebietskörperschaften (Berlin: Julius Springer, 1889).
59
A distant cousin is Lon L. Fuller, ‘Two Principles of Human Association’ in J. Roland Pennock and John W.
Chipman (eds), Voluntary Associations (Nomos XI) (New York: Atherton, 1969), 3–23, repr. in Fuller, The Princi-
ples of Social Order, rev. edn, Kenneth I. Winston (ed.) (Oxford and Portland, Oregon: Hart, 2001), 81–99.
60
Hugo Preuß, Die Entwicklung des deutschen Städtewesens (Leipzig: B. G. Teubner, 1906).
61
See Hugo Preuß, ‘Denkschrift zum Entwurf des allgemeinen Teils der Reichsverfassung vom 3. Januar 1919’
in Preuß, Staat, Recht und Freiheit (Tübingen: J. C. B. Mohr, 1926), 368–94 at 374–79 (the paper was first pub-
lished in the Rechtsanzeiger, 20 January, 1919).
contained an expansive catalogue of basic rights that was, to be sure, of merely
programmatic import, with Preuß himself regarding such a catalogue as super-
fluous ‘in a truly democratic polity’ (59). Preuß’s successes, however, ‘included
the overall structure of the organs of the Reich’, express recognition of the norms
of public international law, and a resolution of problems bearing on state-church
relations (58–59).
The rub came with the office of the Reich President. Preuß gave the President
broad powers, including power to dissolve the Parliament and to issue emer-
gency decrees.62 He saw the President both as a check on the tendency of the
Länder to lay claim to sovereignty and, in the transition from a constitutional
monarchy to a ‘genuine’ parliamentary democracy, as a counterbalance to the
Parliament.63 But the President’s broad powers weighed too heavily in the bal-
ance. During what would prove to be the last years of the Weimar Republic,
from mid-1930 through 1932, the Parliament was virtually displaced by the
Reich President, whose article 48 emergency decrees (including vast regulatory
schemes) took the place of parliamentary legislation.64
This unhappy state of affairs, foreboding the destruction of parliamentary gov-
ernment altogether, served as the backdrop for the most extraordinary of the
Weimar methodological disputes, the exchange between Carl Schmitt and Hans
Kelsen on the question of who ought to be the guardian of the Constitution.
Should it be the Reich President, as Schmitt argued, or a constitutional court, as
Kelsen argued? The exchange begins with papers by Schmitt in defence of the
Reich President as guardian.65 In 1931, Schmitt ups the ante, devoting an entire
monograph to the issue, which prompted Kelsen to respond.66
Addressing the niceties of adjudication, Schmitt remained for much of his
argument within legal science—or, more precisely, this was the impression he
sought to convey. He introduced a ‘model of subsumption’ that serves, without
62
It is controversial whether Preuß, in conferring broad powers on the Reich President, was influenced by Max
Weber, whose arguments on behalf of a strong president are spelled out in his paper ‘The President of the Reich’
in Weber, Political Writings, Peter Lassman and Ronald Speirs (eds) (Cambridge: Cambridge UP, 1994), 304–08
(Weber’s paper first appeared in the Berliner Börsen-Zeitung, 64 [no. 93], 25 February, 1919). Cp. Schefold, ‘Hugo
Preuß (1860–1925)’ (n 55) at 450, who argues on behalf of such an influence, with Manfred Friedrich, Geschichte
der deutschen Staatsrechtswissenschaft (Berlin: Duncker & Humblot, 1997) at 387–88, who argues that Preuß arrived
at his position independently of Weber.
63
See Preuß, ‘Denkschrift’ (n 61) at 387.
64
‘If public safety and order in the German Reich is materially disrupted or endangered, the Reich President may
take the measures (Maßnahmen) necessary to restore public safety and order…’ (This language is drawn from the
second paragraph of article 48. The fifth paragraph provided for legislation that would set out in detail what
counted as an emergency, etc., but no such legislation was enacted.) There is a valuable discussion of the Reich
President and article 48 in Christoph Gusy, Die Weimarer Reichsverfassung (Tübingen: Mohr Siebeck, 1997) at 98–115,
400–19, et passim. Gusy’s monograph is a full-dress study of the Weimar Constitution, with close attention to the
vast literature in the field.
65
Carl Schmitt, ‘Das Reichsgericht als Hüter der Verfassung’ in Otto Schreiber (ed.), Die Reichsgerichtspraxis im
deutschen Rechtsleben. Festgabe der juristischen Fakultäten zum 50jährigen Bestehen des Reichsgerichts, 6 vols (Berlin
and Leipzig: Walter de Gruyter, 1929), vol. 1, 154–78; Carl Schmitt, ‘Der Hüter der Verfassung’, Archiv des
öffentlichen Rechts, 55, N.F. 16 (1929), 161–237.
66
Carl Schmitt, Der Hüter der Verfassung (Tübingen: J. C. B. Mohr, 1931); Hans Kelsen, ‘Wer soll der Hüter der
Verfassung sein?’, Die Justiz, 6 (1930–31), 576–628.
exception, as the foundation for the judicial decision. Specifically, in the exchange
with Kelsen he pointed to two requirements of the model. First, there is the
requirement of derivation:
The special position of the judge in the Rechtsstaat, his objectivity, his position vis-à-vis
the parties, his independence, and the fact that he is not subject to dismissal—all this is
based on the following alone: that he decide on the basis of a statute, and that his
decision, in its content, be derived (abgeleitet) from another decision, namely, one . . .
already contained in the statute.67
Kelsen interprets Schmitt’s notion of derivation as deduction, writing that, for
Schmitt, ‘the judicial decision is already contained in finished form in the statute
and needs only to be “derived” from the statute by way of an operation of logic’.
This, Kelsen adds, is ‘judicial decision qua slot machine (Rechtsautomat)!’68
Arguably, there is a rejoinder to Kelsen’s interpretation. Schmitt may have
intended derivation to be nothing more than a reconstruction of the judicial decision
in subsumptive terms, that is to say, a reconstruction after the fact—specifically,
after completing the hard work of arriving at and interpreting the subsuming
norm.
This reconstructive interpretation, however, is precisely what Schmitt appears
to rule out with his second requirement of the model of subsumption. Subsump-
tion can take place, Schmitt says, only if the subsuming norm is neither ‘doubt-
ful’ nor ‘controversial’ in the context in question. As he writes: ‘The judicial
decision is bound to the legal norm, and [judicial decision-making] comes to an
end where the norm itself is either doubtful or controversial in its content’.69
Kelsen’s reply to this second requirement of Schmitt’s model is telling:
[I]t is little short of astonishing that Schmitt appears to be of the opinion that civil
courts, criminal courts, and administrative courts, whose character vis-à-vis adjudica-
tion he does not wish to call into question, only apply norms whose content is neither
doubtful nor controversial; and that in the case of a legal dispute to be decided by one
of these ‘courts’, what arises is always a question of fact and never a so-called question
of law.70
In Schmitt’s view, a question of law would arise only if the content of the norm
to be applied were doubtful or controversial, in which case subsumption could
not take place. Thus, the question before the court must be a question of fact.
Kelsen finds this astonishing, and I dare say he is not alone.
Why is someone as astute in the law as Schmitt attempting to defend the inde-
fensible? The answer takes us to Schmitt’s political programme. He is keen on
67
Schmitt, Der Hüter der Verfassung (n 66), 37–38 (emphasis in original).
68
Kelsen, ‘Wer soll der Hüter der Verfassung sein?’ (n 66), 591–92. Rudolf von Jhering, in the course of a parody
of legal constructivism, suggested as a model of the judicial decision the digestive process of a duck. ‘From the
front, the case is inserted into the judgment-making machine; from the rear, the case qua judgment comes out
again.’ Von Jhering, Der Zweck im Recht, 3rd edn, 2 vols (Leipzig: Breitkopf & Härtel, 1893), vol. 1, 394.
69
Schmitt, Der Hüter der Verfassung (n 66), 19.
70
Kelsen, ‘Wer soll der Hüter der Verfassung sein?’ (n 66), 588.
defending the Reich President as the guardian of the Constitution. And if he can
cast this defence in the language of legal science by showing that the alternative
to the Reich President, a constitutional court, is not possible legally speaking,
then he will have made his case in non-political terms. Or so he would have us
believe.
Duplicity aside, there is an irony in Schmitt’s argument. He, along with oth-
ers making up the second camp in the aftermath of the 1926 meeting discussed
above,71 was quick to accuse Kelsen of formalism.72 It is Schmitt, however,
who is the formalist here, for his argument fits to a T the classical, two-fold
characterization of formalism: First, the issue in question is framed in a way
that fails to address the exigencies that gave rise to the issue. Second, instead,
the issue is shrouded in a cloak of ‘formal’, conceptual, or categorial distinc-
tions, with an eye to providing a ‘resolution’ in those terms. In the debate
between Kelsen and Schmitt, the relative merits of a constitutional court and
of the Reich President as guardian of the Constitution were at issue. But
Schmitt never addressed the former on the merits, arguing instead that adjudica-
tion before a constitutional court cannot meet the requirements he himself had
invented for his model of subsumption.73
As noted, the charge of formalism is usually raised as an objection to Kelsen’s
legal theory, not to Schmitt’s. The charge as levelled against Kelsen is at the
heart of section 5.
5. Vienna School of Legal Theory, and Hans Kelsen during the

Weimar Period
Some contemporary German writers in the law give Hans Kelsen and his
Vienna School of Legal Theory short shrift, charging formalism and thereby
dismissing Kelsen and the Vienna School out of hand. Michael Stolleis, by
contrast, has an abiding interest in Kelsen’s legal theory and examines aspects
of it with critical understanding. He takes up, as we have seen, Kelsen’s role in
the Weimar methodological disputes (a topic to which I return below), and he
also looks at developments in Austria, including Kelsen’s Vienna School of
Legal Theory.
71
See text at n 52.
72
See Carl Schmitt, Verfassungslehre (Munich and Leipzig: Duncker & Humblot, 1928) at 8–9; Schmitt, Der
Hüter der Verfassung (n 66) at 38–44, 63 n 1. Although Schmitt exercises restraint in the earlier work, his criticism
in the exchange with Kelsen is expressed with sarcasm bordering on ridicule. See also n 92.
73
‘Invented’ is not, I think, too strong here. The farcical idea of insisting on subsumption and limiting it to cases
in which the content of the subsuming norm is perfectly clear (in the language of Schmitt’s second requirement,
‘neither doubtful nor controversial’) is a view that Schmitt, too, dismissed out of hand in earlier work. See Carl
Schmitt, Gesetz und Urteil (Berlin: Otto Liebmann, 1912) at 8 et passim. Indeed, there he pokes fun at the model of
subsumption, suggesting that it is tantamount to a declaratory model of the judicial decision (judges do not make
law, they simply give expression to pre-existing law from time to time), and he refers in this connection to John
Austin, who had ridiculed the declaratory model as a ‘childish fiction’. See Austin, Lectures on Jurisprudence, 5th edn,
2 vols, Robert Campbell (ed.) (London: John Murray, 1911), vol. 2, lec. 37 at 634.
I take up the latter first, for the beginnings of the Vienna School antedate Wei-
mar Germany and its methodological disputes. Specifically, the Vienna School
goes back to informal meetings in Kelsen’s discussion group during World War
I. The group included Adolf Julius Merkl, perhaps the most gifted of Kelsen’s
younger colleagues,74 Alfred Verdross, who became a major figure in his own
right in public international law,75 Josef L. Kunz, another important figure in
public international law,76 Felix Kaufmann, who, unlike the others in the Vienna
School, had ties to the better-known Vienna Circle,77 Fritz Schreier, like
Kaufmann also influenced by phenomenology,78 and Fritz Sander, the enfant ter-
rible of the Vienna School, who, both gifted and disturbed, saw fit to claim that
Kelsen had plagiarized from his, Sander’s, writings. Sander’s charge led to his
expulsion in 1922 from the University of Vienna, though Kelsen himself, it is
worth noting, did not press for this censure. Sander spent the rest of his life,
marked by tragedy, in Czechoslovakia.79 Another influential figure, if tied only
indirectly to the Vienna School, was Kelsen’s good friend Franz Weyr, a legal
theorist of major significance and the leader of the ‘Brno School of Legal The-
ory’ in Czechoslovakia.80
74
An edition of Merkl’s collected works is in progress; see my review in Ratio Juris, 17 (2004), 263–67.
75
See e.g. Alfred Verdross and Bruno Simma, Universelles Völkerrecht, 3rd edn (Berlin: Duncker & Humblot,
1984), which, like the earlier editions, has been a standard work in the field.
76
See e.g. Josef L. Kunz, Völkerrechtswissenschaft und reine Rechtslehre (Leipzig and Vienna: Franz Deuticke,
1923); Kunz, Die Staatenverbindungen (Stuttgart: W. Kohlhammer, 1929); Kunz, ‘The “Vienna School” and Inter-
national Law’, New York University Law Quarterly Review, 11 (1933–4), 370–421.
77
See, in legal theory, Felix Kaufmann, Logik und Rechtswissenschaft (Tübingen: J. C. B. Mohr, 1922), and
Kaufmann, Die Kriterien des Rechts (Tübingen: J. C. B. Mohr, 1922). Kaufmann is a remarkable figure with an
enormous range of interests (Kelsenian legal theory, phenomenology, foundations of economics, philosophy of
mathematics) and with ties, as noted in the text, to the Vienna Circle. See e.g. Ingeborg Helling, ‘Logischer Positiv-
ismus und Phänomenologie: Felix Kaufmanns Methodologie der Sozialwissenschaften’ in Hans-Joachim Dahms (ed.),
Philosophie, Wissenschaft, Aufklärung. Beiträge zur Geschichte und Wirkung des Wiener Kreises, (Berlin and New York:
de Gruyter, 1985), 237–56. Popular views to the contrary notwithstanding, there are no direct ties between Kelsen
and the Vienna Circle, and Kelsen in fact took a dim view of Ludwig Wittgenstein, who in his early work counted
as one of the major influences on members of the Vienna Circle. On Kelsen on Wittgenstein, see Nicola Lacey, A
Life of H. L. A. Hart (Oxford: Oxford UP, 2004) at 251. This is not to say that there are no ties or that there was no
influence whatever. For example, it is arguable that there is a philosophico-intellectual tie to Ernst Mach, precursor
of the Vienna Circle. Kelsen was familiar with some of Mach’s work and appears to have been influenced by him.
In particular, if the large, normative component of Kelsen’s greater legal theory were abstracted therefrom, what
would remain of the theory is a pale imitation of the external world as Mach understood it. See Hans Kelsen,
Hauptprobleme der Staatsrechtslehre (Tübingen: J. C. B. Mohr, 1911) at 5–6 n, 14 n, 161 n. For other aspects of
Kelsen vis-à-vis the Vienna Circle, see Stanley L. Paulson, ‘Zwei Wiener Welten und ein Anknüpfungspunkt:
Carnaps Aufbau, Kelsens Reine Rechtslehre und das Streben nach Objektivität’ in Clemens Jabloner and Friedrich
Stadler (eds), Logischer Empirismus und Reine Rechtslehre (Vienna and New York: Springer, 2001), 137–90.
78
See e.g. Fritz Schreier, Grundbegriffe und Grundformen des Rechts. Entwurf einer phänomenologisch begründeten
formalen Rechts- und Staatslehre (Leipzig and Vienna: Franz Deuticke, 1924).
79
In 1936, Kelsen, in Geneva, received an offer to teach in Prague and decided to lecture there initially as a visit-
ing professor in order to see whether the situation would be viable. Sander met with Kelsen in Prague and gave him
the impression that he was happy to see him again. In a later meeting, Sander revealed that he was an active sup-
porter of the Nazi movement in Czechoslovakia, to which Kelsen remarked that this had to be a pretty risky busi-
ness, given that Sander, too, was of Jewish ancestry. Sander shrugged and replied that he no longer had any choice.
Rudolf Aladár Métall, Hans Kelsen. Leben und Werk (Vienna: Franz Deuticke, 1969), 72–73 (Métall’s account
draws on the second of Kelsen’s autobiographical statements).
80
See e.g. Die Brünner rechtstheoretische Schule, Vladimír Kubeš and Ota Weinberger (eds) (Vienna: Manz, 1980),
which contains papers by Weyr.
Stolleis provides a helpful sketch on the early development of Kelsen’s legal
theory (see 152–54)81 and reflects, too, on the ‘specific Austrian environment’
(see 155–56) in which Kelsen worked. Kelsen’s early biography, while its gen-
eral outlines are clear,82 holds certain puzzles. Stolleis, I think, points to the res-
olution of one of these, namely, why it is that Kelsen and his theory were truly
despised by a number of the key participants in the Weimar methodological dis-
putes. To illustrate the depth of their contempt, I want briefly to trace an ‘argu-
ment’ in Erich Kaufmann’s pamphlet of 1921, A Critique of Neo-Kantian Legal
Philosophy,83 and then to turn to comments made by Rudolf Smend on Kelsen’s
work.
Kaufmann’s pamphlet does not warrant a painstaking examination on the
merits, for his effort is wayward. He had an agenda, which was to dismiss once
and for all a number of legal thinkers, dubious in his view, who had been influ-
enced by the neo-Kantian philosophers of the Baden or ‘Southwest German’
School. Kelsen was at the top of Kaufmann’s list and received unusually harsh
treatment. One example is Kaufmann’s response to Kelsen’s argument in The
Problem of Sovereignty and the Theory of International Law (1920) on behalf of
legal monism, that is, the unity of municipal and international law. Kelsen defended
unity in epistemological terms84 and endorsed, on legal policy grounds, a system
of world government, going so far as to invoke the civitas maxima of Christian
Wolff.85 Kaufmann replies:
[I]f Kelsen is convinced that the purification of concepts according to the ideal of a
world-law monism could contribute anything to the realization of that ideal, this is a
conviction that can only be based on a radically ‘logicistic’ metaphysics (logizistische
81
For more on Kelsen’s early theory, see Stanley L. Paulson, ‘Hans Kelsen’s Earliest Legal Theory: Critical
Constructivism’ (1996) 59 Modern Law Review 797–812, repr. in Normativity and Norms (n 21), 23–43.
82
Born in Prague on 11 October, 1881, Kelsen grew up in Vienna. He took a doctorate in law at the University
in 1906 and completed the Habilitation (see n 57) five years later, publishing the Habilitationsschrift (or post-doc-
toral dissertation) in 1911. Notwithstanding its title, ‘Main Problems in the Theory of Public Law’ (see n 77), the
treatise is decidedly juridico-philosophical, and its profound challenge to naturalism in legal science distinguished
Kelsen, from the beginning, as a figure to reckon with. After military service in World War I, Kelsen was appointed
by Karl Renner, the Chancellor of the provisional government in the post-War Austrian state, to draft a new consti-
tution. Kelsen in fact completed a number of drafts, responding to the concerns of the various political parties. The
effort culminated in the Austrian Federal Constitution of October 1920, which, with many amendments, is in
effect today. Kelsen’s most distinctive contribution to constitution-making is reflected in the provisions for central-
ized constitutional review, in those days an entirely new institutional practice. From 1921 to 1930, Kelsen served as
Constitutional Court judge, and he held at the same time a professorship in the Faculty of Law at the University of
Vienna. In 1930, the right-of-centre Christian Social Party ousted Kelsen from the Court for his decisions on mar-
riage dispensations. Kelsen left Vienna in the same year for Cologne, where he held a professorship until the Nazis
ousted him on the authority of the notorious ‘Law for the Restoration of the Civil Service’, 7 April, 1933. From
Cologne, Kelsen went to Geneva and taught there until the spring of 1940, when he and his wife Margarete emi-
grated to the United States.
83
Erich Kaufmann, Kritik der neukantianischen Rechtsphilosophie (Tübingen: J. C. B. Mohr, 1921), repr. in
Kaufmann, Ges. Schr. (n 39), vol. 3, 176–245.
84
See Öhlinger, Der völkerrechtliche Vertrag im staatlichen Recht (n 25) at 40–57, 94–102, and Stanley L. Paulson,
‘Souveränität und der rechtliche Monismus. Eine kritische Skizze einiger Aspekte der frühen Lehre Hans Kelsens’
in Stefan Hammer et al. (eds), Demokratie und sozialer Rechtsstaat in Europa. Festschrift für Theo Öhlinger (Vienna:
WUV Universitätsverlag, 2004), 21–40 at 31–40.
85
Kelsen, Das Problem der Souveränität (n 11), § 53 (249–57).
Metaphysik) . . . The metaphysics of this rationalistic logicism is so grotesque as to take

on something of the grandiose.86
To charge that Kelsen moves from the ‘purification of concepts’ to the realization
of a substantive normative position is to miss Kelsen’s point altogether. Kelsen
sharply separated his case on behalf of monism from the legal policy argument
that took him, in this early work, to Wolff’s civitas maxima.
The quotation from Kaufmann—not least of all its tone—is instructive, for it
invites attention to the charge underlying virtually everything Kaufmann says in
his often ill-informed and intemperate criticism of Kelsen. The charge, of course,
is formalism. Kaufmann was not alone here. Hermann Heller, for example, wrote
in 1926 that Kelsen was ‘merely carrying out the programme of logicistic positiv-
ism’ associated with those—‘among others, [Paul] Laband, [Rudolf] Stammler,
[and Julius] Binder’—who had been ‘influenced by neo-Kantianism’.87 Two
years later, Rudolf Smend (1882–1975)88 entered the fray:
A theory of the state that, like the Vienna theory, pursues the greatest possible dissolu-
tion of ideal reality (geistige Wirklichkeit) into fiction, illusion, concealment, and decep-
tion—as belated descendant of rationalism—naturally finds especially appreciative
support here [in Kelsen’s theory].89
This might all be taken as representing nothing more than the give and take in
the Weimar methodological disputes, where many of the participants, Kelsen
included, generated their own fair share of heat.
But there is more. Smend, writing from the vantage point of 1950, reflects on
the significance of Kaufmann’s Critique of Neo-Kantian Legal Philosophy of 1921.
Smend begins on what appears to be a conciliatory note, granting that
Kaufmann’s Critique does not do justice to every single opponent.
If all of [the opponents], from [Paul] Laband to [Julius] Binder, from [Heinrich] Rickert
to [Hans] Kelsen, appear as a single general front against which [Kaufmann’s] criti-
cism stands in sharpest contrast, if this criticism fundamentally challenges their
internal consistency, overthrows to a great extent their interpretation of Kant, indeed,
saddles their failure with a substantial responsibility for Germany’s collapse [at the end
86
Kaufmann, Kritik der neukantianischen Rechtsphilosophie (n 83), 29 (emphasis in original), repr. Ges. Schr.
(n 39), vol. 3, 198. Logicism was introduced early in the 20th century in several contexts, for example, as the the-
sis, defended by Bertrand Russell, that mathematics is reducible to logic or, following Wilhelm Wundt, as a counter
to psychologism. In European legal science, however, ‘logicism’ was simply a term of abuse. It was understood as a
synonym for ‘formalism’, but its connotations were, I think, even nastier.
87
Hermann Heller, ‘Die Krisis der Staatslehre’, Archiv für Sozialwissenschaft und Sozialpolitik, 55 (1926), 289–316
at 303, repr. in Heller, Gesammelte Schriften, 2nd printing, 3 vols, Christoph Müller (ed.) (Tübingen: J. C. B. Mohr,
1992), vol. 2, 3–30 at 18. (Heller’s suggestion that Laband, of all people, was influenced by neo-Kantianism is an
absurdity.) On Julius Binder, see n 95.
88
On Smend, see Stolleis, History, vol. 3 (n 10) at 164–6, and Manfred Friedrich, ‘Rudolf Smend 1882–1975’,
Archiv des öffentlichen Rechts, 112 (1987), 1–26, with many additional references to biographical material. On
Smend’s theory, see Stefan Korioth, Integration und Bundesstaat (Berlin: Duncker & Humblot, 1990).
89
Rudolf Smend, Verfassung und Verfassungsrecht (Munich and Leipzig: Duncker & Humblot, 1928), 95, repr. in
Smend, Staatsrechtliche Abhandlungen und andere Aufsätze, 3rd edn (Berlin: Duncker & Humblot, 1994), 119–276
at 204.
of World War I], then one understands the indignant protest from all sides of the camp
under attack.
Smend does not take up the question of the ‘juridico-philosophical merit’ of

Kaufmann’s book, turning instead to its historical significance:
[I]ts historical role ought to be recalled with gratitude even today. For surrounding the
wasteland into which positivism had led us, there still stood the fence erected by neo-
Kantianism, and the penalty for every attempt to break out of this concentration camp
(Konzentrationslager) was the automatic loss of honour and standing among our peers.
But our generation, in so far as it was of one mind, had now found [in Kaufmann’s
Critique] the programmatic expression of its emancipation, marking the end at last of
the old order.90
By all accounts, Smend was a decent person who had not compromised himself
during the Nazi period, who, indeed, had been driven out of the University of
Berlin in 1935 by the ‘ambitious and tough Reinhold Höhn’, a member of the
SS (262–63).91 Why, then, this brutal treatment of Kelsen, the unspeakable ref-
erence to a concentration camp? Stolleis in effect alludes to the puzzle when he
writes, entirely correctly, that legal positivism ‘had allegedly been transcended’
in the Weimar period, especially in ‘the thoroughly despised form it assumed in
Viennese normativism’ (195, and see 164). Again, why this animosity?
Stolleis points en passant to the answer (see 68–9, 164–7, 175). All of Kelsen’s
critics, never mind where they stood on the political spectrum—Kaufmann,
Smend, and Schmitt92 on the right, Heller on the left—reflected the influence of
Hegel and Hegelianism. Kelsen did not. And this was no accident. Austria went
its own way philosophically in the 19th century. In Austrian philosophy, Bernard
Bolzano, Ernst Mach, and Alexius Meinong were more familiar names than
those of the post-Kantians.93 Of course Kelsen was not a professional philoso-
pher. Still, the Austrian reception of philosophers very far removed from Hegel
and Hegelianism left its mark. In Kelsen’s writings, the post-Kantians are con-
spicuous by their absence, and the Vienna School’s effort to learn something
about the Marburg neo-Kantians, far from representing a natural Austrian
reception of their work, stems from the initiative of people in Kelsen’s discussion
group.94
90
Rudolf Smend, ‘Zu Erich Kaufmanns wissenschaftlichem Werk’ in Um Recht und Gerechtigkeit. Festgabe für
Erich Kaufmann zu seinem 70. Geburtstag (Stuttgart and Cologne: W. Köhlhammer, 1950), 391–400 at 395.
91
See references at n 88. After being forced out at the University of Berlin, Smend was appointed professor of
law at the University of Göttingen.
92
To be sure, Schmitt qua critic of Kelsen is a special case. Restrained in 1928, sarcastic to the point of ridicule
in 1931 (see n 72), Schmitt’s criticism of Kelsen in 1936 is expressly anti-Semitic. See Schmitt, ‘Die deutsche
Rechtswissenschaft im Kampf gegen den jüdischen Geist’, in a volume of the same title, appearing as volume 1 of
the series: Das Judentum in der Rechtswissenschaft (Berlin: Deutscher Rechtsverlag, 1936), 14–17, 28–34. The latter
of Schmitt’s talks also appeared in the Deutsche Juristen-Zeitung, 41 (1936), cols. 1193–9.
93
For a lucid statement on these matters, see Berry Smith, Austrian Philosophy. The Legacy of Franz Brentano
(Chicago and La Salle, Ill.: Open Court, 1994).
94
See Alfred Verdroß [Selbstdarstellung] in Nikolaus Grass (ed.), Österreichische Rechts- und Staatswissenschaften.
Der Gegenwart in Selbstdarstellungen (Innsbruck: Wagner, 1952), 201–10 at 201.
Save for Stolleis’s valuable references, this explanation of the animosity

toward Kelsen has gone largely unremarked, an explanation turning on the
absence of any trace of Hegelianism in one or another of its forms95 in Kelsen’s
work, coupled with his own hard-headed analytical approach. And the explana-
tion is significant, for it is an explanation in legal theory, going beyond and com-
plementing the various explanations that might well be offered by looking to
personal factors, for example, the perception of the Austrian, Hans Kelsen, as
outsider, the role played by anti-Semitism,96 or the extent to which Kelsen’s own
biting criticism prompted others to respond with verbal abuse.97 Explanations
drawing on personal factors are, of course, everyday fare for the historian and
biographer, but what is of special interest here is that Stolleis can also point to an
explanation in legal theory.
6. The Destruction of the Theory of Public Law

in the Period 1933–45
Appointed Chancellor by Reich President Paul von Hindenburg on 30 January,
1933,98 Hitler made quick work of the Weimar Constitution. Within two days,
the Reichstag had been dissolved by emergency decree of the President, and just
three days after that, on 4 February, the Emergency Decree for the Protection of
the German People was issued,99 with far-reaching restrictions on the freedom of
the press. When the Reichstag was set ablaze, on 27 February, the Nazis seized
the opportunity to press for a permanent state of emergency. One day later, the
Emergency Decree for the Protection of the People and the State was issued,100
which suspended all basic rights indefinitely and served in its practical effect to
95
On Hegelianism in the Weimar period, see Sylvie Hürstel, ‘Rechtsphilosophie oder Rechtsgeschichte? Der
Neuhegelianismus in der Weimarer Republik’, Rechtshistorisches Journal, 14 (1995), 368–98. As a case study, there
is Julius Binder, who moved from neo-Kantianism to neo-Hegelianism, and then, in the Nazi period, to neo-
Hegelianism qua apologetics for the regime. See Ralf Dreier, ‘Julius Binder (1870–1939). Ein Rechtsphilosoph
zwischen Kaiserreich und Nationalsozialismus’ in Fritz Loos (ed.), Rechtswissenschaft in Göttingen. Göttinger Juristen
aus 250 Jahren (Göttingen: Vandenhoeck & Ruprecht, 1987), 435–55, repr. in Dreier, Recht-Staat-Vernunft (Frankfurt:
Suhrkamp, 1991), 142–67 (with additional notes, see ibid at 166–67).
96
Aside from the case of Carl Schmitt (see n 92), this explanation has limited application here. Two of Kelsen’s
harshest critics, Erich Kaufmann and Hermann Heller, were themselves of Jewish ancestry.
97
On Kelsen’s replies to Kaufmann, see n 34 and text at nn 48–51. Kelsen replies to Smend in Der Staat als Inte-
gration. Eine prinzipielle Auseinandersetzung (Vienna: Julius Springer, 1930). Kelsen’s stinging replies to Heller were
limited to exchanges in meetings of the Association of German Public Law Teachers, and they came only after
Heller’s criticism of Kelsen in the journals (see e.g. reference at n 87). See e.g. Hans Kelsen, Schlußwort [conclud-
ing statement following his lecture], Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer, 5 (1929),
117–23 at 121–23.
98
For an instructive, richly documented statement on Heinrich Brüning’s dismissal as chancellor on 30 May,
1932, and on the subsequent events leading to the appointment of Hitler as chancellor eight months later, see
William L. Patch, Jr., Heinrich Brüning and the Dissolution of the Weimar Republic (Cambridge: Cambridge UP,
1998) at 220–305.
99
‘Verordnung des Reichspräsidenten zum Schutze des deutschen Volkes v. 4.2.1933’, Reichsgesetzblatt, pt. i
(1933), 35–41. To be sure, this decree had been prepared by Hitler’s predecessor as chancellor, Kurt von Schleicher.
See Hans Mommsen, The Rise and Fall of Weimar Democracy, trans. Elborg Forster and Larry Eugene Jones
(Chapel Hill: University of North Carolina Press, 1996) at 532.
100
‘Verordnung des Reichspräsidenten zum Schutz von Volk und Staat v. 28.2.1933’, Reichsgesetzblatt, pt. i
(1933), 83.
supplant the Weimar Constitution. The Hitler coalition prevailed in the elections
of 5 March, not a surprising outcome, given a campaign marked by terror (69
dead on the streets at the hands of the ‘brown battalions’, for example) and by
enthusiastic support for the draconian measures ‘supposedly necessary in ward-
ing off the acute danger of a Communist coup’,101 all this effectively inhibiting the
forces of the left. The Enabling Act of 24 March granted the government power
to issue ‘statutes’ (‘Gesetze’) for four years without any participation by either the
Reichstag or the Reichsrat.102 The Parliament was reduced to an ‘organ of accla-
mation’103 or—in the language of the day—‘the world’s most expensive glee club’
(332, 333). Within less than two months, the system of government had been
transformed in toto.104 Those jurists who insisted on the continuing validity of the
Weimar Constitution were, in Carl Schmitt’s words, ‘obviously unable to accus-
tom themselves to the reality of the National Socialist state’.105
Other voices, with political views diametrically opposed to Schmitt’s, had
come to the same conclusion. Gerhard Anschütz, who had been a leading figure
in German constitutional law and a major participant in the Weimar methodo-
logical disputes, took early retirement at the University of Heidelberg in 1933
(see 174, 287)106 in order to avoid any association with the Hitler regime. Later
he wrote:
When Reich President v. Hindenburg appointed Adolf Hitler Reich Chancellor on 30
January 1933 and charged him with forming a new government, whoever saw only the
surface and the formality of the event might think that this was merely a change in gov-
ernment, just like others that had taken place so often since 1919 in accordance with
the rules of the parliamentary system. But anyone who looked more closely had to say
to himself that something far greater and different was happening, namely, not adher-
ence to this system but its repeal, the end of the multi-party parliamentary state—a sys-
tem of government that, strictly speaking, had been internally eroding for a long time
and was in the throes of dissolution. There can be no doubt that the takeover of power
. . . was a revolution.107
What became of the leading figures in the Weimar methodological disputes
after 30 January, 1933? Anschütz, as noted, took early retirement. Smend,108
101
Hans-Ulrich Wehler, Deutsche Gesellschaftsgeschichte, vol. 4: Vom Beginn des Ersten Weltkriegs bis zur Gründung
der beiden deutschen Staaten 1914–1949 (Munich: C. H. Beck, 2003), 605.
102
‘Gesetz zur Behebung von Volk und Reich v. 24.3.1933’, Reichsgesetzblatt, pt. i (1933), 141.
103
Stolleis, History, vol. 3 (n 10), 332, referring here to Peter Hubert, Uniformierter Reichstag. Die Geschichte der
Pseudo-Volksvertretung 1933–1945 (Düsseldorf: Droste, 1992).
104
Ralf Dreier takes up the question of whether the transformation counts as a revolution; see his paper
‘Bemerkungen zum “Dritten Reich”’ in Wolfgang Baumann et al. (eds), Gesetz, Recht, Rechtsgeschichte. Festschrift
für Gerhard Otte zum 70. Geburtstag (Munich: Sellier, 2005), 495–507.
105
Carl Schmitt, Staat, Bewegung, Volk (Hamburg: Hanseatische Verlagsanstalt, 1933), 6, quoted in Stolleis,
History, vol. 3 (n 10), 333 n 10 (trans. altered).
106
Here, in a rare slip on the part of the translator, ‘Emeritierung’ is rendered as ‘emigration’ rather than as ‘emer-
itus status’. See Stolleis, History, vol. 3 (n 10) at 174, and cp. the German text of vol. 3: Geschichte des öffentlichen
Rechts in Deutschland. Dritter Band 1914–1945 (Munich: C. H. Beck, 1999) at 182.
107
Gerhard Anschütz, Aus meinem Leben, Walter Pauly (ed.) (Frankfurt: Klostermann, 1993), 327–28 (the text
quoted here was written in 1942, see ibid at 329), quoted in Stolleis, History, vol. 3 (n 10), 249 (trans. altered).
108
See n 91.
Thoma, and Triepel continued to teach but kept their distance from the regime.
Heller, Walter Jellinek, Kaufmann, Kelsen, and Nawiasky, all of Jewish ancestry,
were ousted from their university posts and managed to leave the country—
Heller, Kelsen,109 and Nawiasky in 1933, Jellinek in 1935 (see 287). Kaufmann
lost his professorial post in 1934 and fled four years later, after his private semi-
nar, the ‘Nicolas Lake Circle’, had come to light (see 262).
Carl Schmitt (1888–1985)110 is an altogether different case. To be sure, although
his anti-liberal and anti-parliamentarian line was evident in the 1920s,111 he did
not aim then at the establishment of a völkischer Führer-state. That came later.
As Stolleis writes:
We know definitively that he did not decide in favour of such a state until March and
April of 1933, when the die had been cast. Still, it was this decision that threw him into
the maelstrom of later moral condemnation: his hectic participation in the Nazi state, the
invective he heaped upon emigrants, the scramble for leadership positions, his justifica-
tion of the Röhm murders, his organization of the 1936 conference on ‘the influence of
Jewry’ on German legal scholarship—all this pursued with the zeal of the convert who
senses deep down that he is doing the wrong thing but cannot bring himself to stop.112
The destruction of a discipline—public law as a field in legal science—had two
facets. One facet, as adumbrated above, was the elimination of central figures in the
field, some compelled to leave the university and others effectively silenced. The
other facet, of course, was the cooptation of those willing to do the Nazis’ bidding.113
Grotesquely distorted exchanges took place, for example, on whether the new state
ought to remain a Rechtsstaat, as if that were still an open question (see 349–58).
As Stolleis summarizes, ‘[n]o general state doctrine, constitutional doctrine, or
state theory worthy of the name emerged’ (260). And how could things have been
otherwise? The new arrivals in the law faculties, ‘no different from the German
people as a whole, had [their] gaze firmly fixed on Hitler and his intentions’ (336).
7. Conclusion
In closing, I want to turn briefly to the merits of the translation of Stolleis’s
book. The translation is, in a word, splendid.114 As a way of underscoring translator
109
See n 82.
110
On Schmitt, see Stolleis, History, vol. 3 (n 10) at 169–73, 264, 340–3, 418–22, et passim. Among the English-
language studies on Schmitt, special mention should be made of Gopal Balakrishnan, The Enemy. An Intellectual
Portrait of Carl Schmitt (London and New York: Verso, 2000); Jan-Werner Müller, A Dangerous Mind. Carl Schmitt
in Post-War European Thought (New Haven and London: Yale UP, 2003); and William E. Scheuerman, Carl
Schmitt. The End of Law (Lanham, Md.: Rowman & Littlefield, 1999).
111
See, in particular, Carl Schmitt, The Crisis of Parliamentary Democracy, trans. Ellen Kennedy (Cambridge,
Mass.: MIT Press, 1985) (first published in 1923).
112
Stolleis, History, vol. 3 (n 10), 173 (trans. altered); see also n 92.
113
See ibid at 332–431; see also Horst Dreier, ‘Die deutsche Staatsrechtslehre in der Zeit des Nationalsozialismus’,
Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer, 60 (2001), 9–72.
114
Translation is interpretation. And in a book of this length and complexity, the reader will inevitably prefer an
interpretation different from the translator’s on one point or another. For example, I would have preferred a literal
Thomas Dunlap’s achievement, I might tell the following little story, which has
the virtue of being true. Some time ago, my friend and colleague in Prague, Miloš
Calda, translated an entire treatise of Franz Weyr’s115 from the Czech into Eng-
lish for me. After completing his fine translation, Calda remarked that it would
have been a whole lot easier to translate Weyr’s book into German. Why so? In
the early decades of the 20th century, legal science in these two countries of the
old Austro-Hungarian Empire, Austria and Czechoslovakia, was very similar,
and concepts prominent in the one legal system were prominent in the other sys-
tem, too.116 Thus, there would have been little need for translator Calda to find
a verbal counterpart in a second language where there was, in the second legal
system, no corresponding concept, for the corresponding concept was almost
always there in Austrian law. Translating into English, however, meant that this
need arose all the time.
What is true of my friend Calda’s translation is also true of Thomas Dunlap’s.
The two legal systems, German and English, are very different from the stand-
point of their respective conceptual frameworks, and Dunlap’s difficult task was
to come up with satisfactory renditions of German legal expressions despite the
lack of conceptual counterparts in English. He succeeded admirably.
Returning to the book itself, I am aware that I have barely scratched the sur-
face of Michael Stolleis’s rich palette. Still, I hope to have succeeded in inviting
attention to the book. Readers who turn to it—be their field legal history, com-
parative law, legal philosophy, or political theory—will be handsomely rewarded.
The volume reviewed here is the third and, presumably, last volume117 of Stolleis’s
treatise, and the achievement that the treatise represents is epochal.
translation of ‘Rechtswissenschaft’, that is, ‘legal science’, rather than ‘jurisprudence’. The latter fails to convey any-
thing of the ostensibly scientific turn in Continental legal thought (see text at nn 5–9). Indeed, in ‘pre-scientific’
Continental legal thought, ‘Jurisprudentia’ depicts a craft, a practice. Another point—to be sure, a technical mat-
ter—is that Dunlap translates ‘Rechtssatz’ in the title of Kelsen’s first main work, which had appeared in 1911, as
‘proposition’, see Stolleis, History, vol. 3 (n 10) at 152. See also ibid at 157 and contrast the interpretation at 187,
where Stolleis is talking about Hermann Heller. Kelsen, however, does not develop a doctrine of the norm proposi-
tion (or norm statement) until the 1940s. The task, in the Hauptprobleme der Staatsrechtslehre (n 77) at 237 et passim,
is to establish the ‘ideal linguistic form’ of the legal norm. For more on the problem, see Stanley L. Paulson, ‘Arriv-
ing at a Defensible Periodization of Hans Kelsen’s Legal Theory’ (1999) 19 OJLS 351–64 at 355–60.
115
See text at n 80.
116
An example is the development of centralized constitutional review in the two countries at the same time and
largely from the same sources. See Herbert Haller, Die Prüfung von Gesetzen (Vienna and New York: Springer,
1979) at 61–67; Theo Öhlinger, ‘The Genesis of the Austrian Model of Constitutional Review of Legislation’
(2003) 16, Ratio Juris 206–22 at 207 n 3.
117
There are rumours afloat in German legal circles to the effect that Stolleis may well add a fourth volume,
which would take the History right up to the present day.

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Oxford Journal of Legal Studies, Vol. 25, No. 3 (2005), pp.

The Theory of Public Law in Germany

2. Fin de siècle Legal Positivism in Public Law

Public Law of the German Reich,13 count as an unqualified endorsement of

To be sure, Laband’s dictum is a caricature,15 as some of his own work makes

3. Methodological Disputes of the Weimar Period

In his spirited defence of the equality provision,39 Kaufmann’s starting point

4. The Weimar Constitution and a Fundamental

5. Vienna School of Legal Theory, and Hans Kelsen during the

Metaphysik) . . . The metaphysics of this rationalistic logicism is so grotesque as to take

Smend does not take up the question of the ‘juridico-philosophical merit’ of

Save for Stolleis’s valuable references, this explanation of the animosity

6. The Destruction of the Theory of Public Law

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