Zeitschrift des Max-Planck-Instituts für europäische Rechtsgeschichte Rechts R Journal of the Max Planck Institute for European Legal History geschichte g Rechtsgeschichte Legal History www.rg.mpg.de http://www.rg-rechtsgeschichte.de/rg27 Rg 27 2019 222 – 230 Zitiervorschlag: Rechtsgeschichte – Legal History Rg 27 (2019) http://dx.doi.org/10.12946/rg27/222-230 Donal K. Coffey * The Influence of the Weimar Constitution on the Common Law World * Max Planck Institute for European Legal History, Frankfurt am Main, [email protected] Dieser Beitrag steht unter einer Creative Commons Attribution 4.0 International License Abstract It is commonly thought that the Weimar Con- stitution had little influenceinthecommonlaw world. This article traces the translation of the Weimar Constitution in the Irish context, and demonstrates its importance in the drafting of the Irish Free State Constitution of 1922 and the Irish Constitution of 1937. It specifically looks at the way in which translation occurred in relation to the Directive Principles of Social Policy. The translation of the Irish Constitution into the South Asian context is analysed, with a particular focus on India. Keywords: Constitutional history, Irish history, Indian history, common law history, imperial legal history □× Rg 27 2019 Donal K. Coffey The Influence of the Weimar Constitution on the Common Law World Irish Free State and later published as Select Constitutions of the World.2 The volume provided both the texts of The Weimar Constitution of 1919 did not various extant constitutions and a narrative about directly influence the constitutions of either the the adoption of individual constitutions. United Kingdom or the United States of America, ThebookpresentedanarrativeoftheWeimar butitdidstillhaveaninfluenceonsomeconsti- Constitution as being intimately connected to the tutions in the common law world. Within the liberal nationalist tradition as embodied in the British Empire, a distinction was drawn in the Frankfurt Constitution of 1848. The authors’ sym- aftermath of the First World War between those pathies were clearly on the side of liberal national- parts which were self-governing (called »Domin- ism, evidenced by a brief aside to counter the ions«) and those parts which were not yet self- arguments of »unnecessary dilatoriness« levelled governing.The Dominions in 1918 were composed against the Frankfurt deputies, and they empha- of Canada, Australia, New Zealand, Newfound- sised the influence which the ideology had on land, and South Africa. Within the United King- Hugo Preuß.3 The appeal of the Weimar Consti- dom itself, the Irish War of Independence broke tution for an Irish nationalist government can be out in 1919, and at the cessation of hostilities in seen in the manner in which it was presented: 1921, it was agreed that Ireland would become a Dominion to be known as the Irish Free State (this, The dominant principle of the Constitution in in turn, provoked a civil war within Ireland). The the Preuss Draft was the frequent insistence on translation of Weimar in a common law context the sovereignty of the people, not merely as a occurs most clearly in the case of the Irish Free pious expression, but everywhere as a practical State, where the constitutional drafters were not mode of government. In the forefront of his content to rely solely on British precedents, or on draft was placed a section dealing with the precedents from the other Dominions. The nation- Fundamental Rights of the people; and, accord- alist ideals of the new Irish state, and the distrust of ing to his original plan, the State organisations leaders such as Arthur Griffith of the Westminster followed after, being based upon, these Funda- parliamentarian model,1 meantthattherewasa mental Rights.4 perceived need to adopt other normative models to underpin the new constitutional settlement. This emphasis on popular sovereignty, a com- In attempting to construct a new constitutional mon feature of interwar constitutions, struck a order for the Irish Free State in 1922, Irish drafters chord with Irish nationalists; Laura Cahillane ar- drew upon continental models, in particular more gues that popular sovereignty was »without any liberal nationalist ones. Weimar’s influence as a doubt […] the greatest influence« on the drafters of constitutional Urtext thus rested more upon its the Irish Free State Constitution.5 The particular liberal pedigree than any familiarity with the case- influence of the Preussian draft (rather than the lawthathaddevelopedinGermany.Theinfluence final version) of the Weimar Constitution may may be most clearly seen in a document drawn up perhaps be discerned in the placement of the as part of the constitutional drafting exercise which fundamental rights provisions at the beginning of was presented to the Irish Constituent Assembly the Free State Constitution; in the Weimar Con- 1Griffith (1918) ix–xii. 2 Select Constitutions of the World (1922). 3 Ibid. 172. 4 Ibid. 176. 5Cahillane (2016) 87. 222 The Influence of the Weimar Constitution on the Common Law World Fokus focus stitution as promulgated on 11 August 1919, the the drafters of the Free State Constitution, partic- German States’ influence had moved them to the ularly Darrell Figgis, clearly relied on the Weimar second part of the text, after the provisions on the Constitution.12 In 1922, however, the Irish Free political system and institutions. The translation of State retained a constitutional structure within the the title of the new German state in Select Con- British Empire – that of a Dominion – which stitutions of the World cannot but have been for- retained the Crown in the executive, legislative, mulated in a manner to appeal to Irish nationalists and judicial spheres. No innovation was possible, – it was referred to as a »Reich-Republic«6 and for example, regarding the British Queen as head contained a footnote about terminology: of state, such as by providing for a president. In- stead one finds the influence of Weimar in other The word »Reich« has been retained in the provisions, particularly those intended to provide translation; there is no satisfactory equivalent a means for popular sovereignty to permeate the in English and the German word is coming into new Irish State, such as the possibility of holding currentuse.Itisperhapsnecessary,however,to a referendum on legislation passed by parliament point out that while the present title of the (the Oireachtas)13 and for the initiation of legis- German Republic is the same as was applied to lation by popular demand.14 Thesewereadapted the German Empire, the word itself has no in the Irish context in order to fit a unitary, rather Imperialist significance, but conveys much the than federal, form of government. same idea of national feeling and organisation While Weimar was influential in terms of con- as the English word »Commonwealth«.7 stitutional construction, it was less so in relation to the jurisprudence of the new state. The latter The insistence of a lack of imperialist intent was clearly owed more to the British common law intended to reassure Irish nationalists about the system, despite an early aborted attempt to inte- new constitutional direction of Germany, despite grate ancient Irish Brehon law into the court imperialism’s lingering influence within the Wei- structure. As an exercise in translation, the Weimar mar Constitution – where, although Germany no Constitution helped provide some liberal nation- longer had any colonies after 1919, legislating on alist underpinnings to the Constitution, but the colonial matters was listed as an exclusive power of understanding of German jurisprudence was the Reich under Article 6.2 – and on the Weimar superficial and limited to the text of the document. government.8 Indeed, one of the leading contem- poraneous commentaries of the Weimar Consti- tution noted the continuity of the Empire even 1937 Constitution of Ireland under the new Weimar Constitution.9 Notwith- standing these considerations in Germany, the In 1935, the work on drafting a new Irish Con- success of the method of presentation in Select stitution began.15 At that point in time, it was clear Constitutions of the World may be gauged from that the Weimar Constitution had not stopped the the adoption of this republican nomenclature in rise of dictatorship in Germany. When the parlia- the Constituent Assembly.10 mentary debates about the Irish Constitution took Brian Farrell has noted that the optimism which place in 1937, the possibility of a dictator establish- characterised constitutional thought in the after- ingthemselvesundertheauspicesofthepresi- math of the First World War was also present in dency was a pressing concern for some elected Dublin during the drafting of the Free State Con- representatives, although the more convincing ar- stitution.11 As has been shown by Laura Cahillane, gument aired was that no dictator would volun- 6 Select Constitutions of the World nur seine Verfassung geändert. Das 13 Weimar Constitution, Article 74; (1922) 174, 177. Reich als solches bestand und besteht Irish Free State Constitution, Article 7 Ibid. 177. auch heute noch weiter.« 47. 8 See, for example, the actions of 10 In the Dáil Debate of 26 Sept 1922, 14 Weimar Constitution, Article 73; Gustav Stresemann recounted in Deputy Thomas Johnson referred to Irish Free State Constitution, Article Gründer (2017) 169. it as the German Republic. 48. See Cahillane (2016) 111. 9Anschütz (1929) 3: »Die Revolution 11 Farrell (1970) 121. 15 The reasons for this are outlined in hat das Reich nicht zerstört, sondern 12 Cahillane (2016) 4, 83–84. Coffey (2018a) 78–80. Donal K. Coffey 223 Rg 27 2019 tarily restrict themselves to a set of enumerated and Headlam-Morley gave particular prominence to confinedpowersasoutlinedintheIrishConstitu- the German Constitution of 1919; invariably it tion.16 It might be thought, given its failure, that was the first or second example she considered in the drafters would not rely upon the Weimar relation to each subject matter. She provided an Constitution when working on the new docu- analytical overview of comparative constitutional- ment.