Rights in Old and New Democracies

TABLE OF CONTENTS INTRODUCTION : RIGHTS IN OLD AND NEW DEMOCRACIES ........................................................... 3 Individualism in rights talk and its alternatives ..................................................................... 5 The judicialization of politics in old and new democracies and the role of scholars............. 9 Postwar German jurisprudence and Weimar rights debates................................................. 15 CHAPTER ONE : A NEW DEMOCRACY IN CRISIS .......................................................................... 21 Constituting a republic in the wake of military defeat and revolution: the main constitutional institutions of the new German Republic, and the practice of emergency legislation and judicial review.............................................................................................. 21 Emergency government in the post-war economic and security crisis and the response of the courts .............................................................................................................................. 28 Consolidation at home and on the international scene: parliamentary party government during the "golden twenties" ................................................................................................ 31 Presidential government in the economic and security crisis of 1929-1933 and the collapse of Weimar democracy .......................................................................................................... 33 CHAPTER TWO : RIGHTS IN GERMANY UNTIL 1919.................................................................... 38 Fundamental rights in German constitutional thought until 1919........................................ 38 Fundamental rights in the Weimar Constitution .................................................................. 41 CHAPTER THREE : INDIVIDUAL RIGHTS THEORIES IN WEIMAR GERMANY .................................. 47 Regular courts as the bulwarks of individual rights: Heinrich Triepel, founder of the Association of German Professors of Constitutional Law................................................... 48 Triepel’s theory of individual rights ................................................................................. 54 Administrative courts as the bulwarks of individual rights: Gerhard Anschütz and Richard Thoma, editors of the Handbook of German Constitutional Law........................................ 58 Anschütz’s individual rights theory in his commentaries ................................................. 58 Thoma’s theory of individual rights in the collective commentaries ............................... 62 Rights in the collective commentaries .............................................................................. 69 Kelsen’s position on rights ............................................................................................... 73 CHAPTER FOUR : WEIMAR RIGHTS THEORIES REACHING BEYOND THE PRIVATE INDIVIDUAL ..... 77 The political community dimension of rights in the debates of the Association of German Professors of Constitutional Law: Erich Kaufmann, Rudolf Smend and Hermann Heller.. 77 Rights as principles of natural law in Erich Kaufmann’s constitutional theory .............. 77 Rights as values integrating society in Rudolf Smend’s rights theory ............................. 83 Rights connecting social pluralism and unity in Hermann Heller’s constitutional theory .......................................................................................................................................... 87 Rights as a function of contingencies in interpretive practices: Albert Hensel, Gustav Giere, Otto Kirchheimer, Franz Neumann, Ernst Rudolf Huber, Carl Hermann Ule..................... 90 Albert Hensel and Gustav Giere ...................................................................................... 90 Otto Kirchheimer and Franz Neumann ............................................................................ 91 Ernst Rudolf Huber and Carl Hermann Ule .................................................................... 94 Legal and political rights in the constitutional theory of Carl Schmitt ................................ 98 Schmitt’s theory of the legal rights of individuals............................................................ 99 Schmitt’s rights polemic ................................................................................................. 105 Schmitt’s theory of the political rights of individuals and institutional rights ............... 109 CONCLUSIONS ......................................................................................................................... 112 APPENDIX 1............................................................................................................................. 121 ENDNOTES ............................................................................................................................... 122 BIBLIOGRAPHY ……………………………………………………………………………….161 1 Dedication Szüleimnek és Zsoltnak ajánlom Acknowledgement Several people and institutions assisted me while I was working on the core of this book, my doctoral dissertation. For their help with locating and accessing literature, I would like to thank Katalin Gönczi (Frankfurt am Main), Christian Boulanger (Berlin), the Georg Brunner Collection at the Law Library of the University of Pécs, Hungary, and the librarians at the Max Planck Institute of European Legal History (Frankfurt am Main). For academic assistance, personal or institutional, I would like to thank Michael Stolleis (Frankfurt am Main), Wilhelm Hennis (Freiburg), Silke Roth (Philadelphia), John Lukacs (Phoenixville, Pennsylvania), Thomas Henne (Frankfurt am Main) and the Max Planck Institute of European Legal History (Frankfurt am Main). My research and writing was financially supported by the DAAD Doctoral Research Grant at the Max Planck Institute of European Legal History (Frankfurt am Main), the University of Pennsylvania Doctoral Exchange Fellowship at the Free University (Berlin) and my workplace, the Department of Sociology, University of Pécs, Hungary. Last but not least I thank my dissertation advisers at the University of Pennsylvania for their help: Ellen Kennedy at the Department of Political Science, Kim Lane Scheppele (formely at Penn’s Law School, now at Princeton University) and Thomas Childers at the History Department. 2 INTRODUCTION : RIGHTS IN OLD AND NEW DEMOCRACIES The language of rights plays a central role in contemporary constitutional and political thought and is one of the predominant modes of political argumentation in democracies around the world, both in domestic and international politics. In spite of the fact that rights are usually seen as the tokens of democratic political life, their implications have been criticized recently as promoting the cause of abstract individualism – a process that is arguably detrimental to viable democratic political communities. Searching for alternative ways of theorizing rights, however, has not always been part of such criticisms of contemporary rights talk – as we argue in Section One of the Introduction. One of the main tasks of the present work is to reconstruct the rights theories of Weimar Germany’s constitutional scholarship in order to show that there is in fact a wealth of approaches to rights that go beyond the individual dimension. Critics of contemporary rights talk interested in remodelling instead of abandoning the language of rights find here a theoretical reservoir to draw on. The contemporary focus on rights gave rise to an expanding body of literature on judicial review and the judicialization of politics both in old and new democracies. While in Weimar Germany too, the role of judges was a central element of debate in the context of constitutional scholarship on rights, and Weimar courts did claim the power to review legislation (although remained on the whole reluctant to use it), it was ultimately scholars, not judges who made rights important in Weimar. This brought with it a special interest on the part of Weimar scholars to extend their arguments on rights and courts to theorizing their own role, namely the tasks of constitutional scholarship – an element all but missing from contemporary literatures on the judicialization of politics, as Section Two of the Introcution shall demonstrate. This lack is unfortunate given that these literatures are, after all, in the quest of explaining the major shift of influence from traditional legislative and executive powers to those of the judiciary via constitutional interpretation, in which scholars surely (can) have a role. Beside its virtues of offering alternative ways of conceptualizing rights and calling attention to the role of scholars in the life of rights, Weimar constitutional scholarship has also been credited for the debts that postwar German political and legal thought incurred. In spite of a widespread recognition of such debts (as discussed in Section Three of the Introduction), no truly comprehensive treatment of Weimar rights theories has been advanced thus far. By reconstructing all the major rights theories of Weimar scholars as well as the dynamic of 3 rights debates in various institutional settings, we hope to contribute a hitherto missing element to the expanding body of literature on Weimar constitutional theory. The method followed in the design and implementation of this book has been advanced by the Cambridge school of the

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