推荐图书A History of Public Law in Germany 1914-1945

cuplav

Michael Stolleis 的 A History of Public Law in Germany 1914-1945在专家找书版现有下载，http://www.readfree.net/bbs/read.php?tid=4615316
感谢好心人gzlaser
该书是Michael Stolleis三本鸿篇大作中的收尾的一本。
英文译本由Thomas Dunlap翻译，Oxford University Press 2004年出版，德国著名法学家Alexy对于这个译本评价很高。
系列之二《德国公法史:国家法学说和行政学(1800-1914)》由雷勇博士翻译成中文，法律出版社出的。也有英文译本，public law in Germany 1800-1914, Berghahn出版的。
此外，我还推荐大家读一下维亚克尔的《近代私法史》，陈爱娥老师翻译的，陈老师说他在德国上博士时读的如痴如醉，我也读的如痴如醉，大家可以比照着Michael Stolleis的公法史来阅读。


给大家发一个Robert Alexy为A History of Public Law in Germany 写的书评，帮助大家阅读。


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 jurisprudence? Part of the answer stemmed from what he had learned from Jeremy Bentham. The rest of the answer came from what he would learn during a sojourn in Germany, where, in 1827-28, he studied pandect law. 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.



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'.



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 Puchta and the early Rudolf von Jhering, in particular, succeeded in transforming the field by 'rendering the law scientific' (die Verwissenschaftlichung des Rechts). By the middle of the 19th century, legal science with its 'constructivist' method was well entrenched in civil law, and a bit later the machinery of legal science was carried over to public law, 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. Notwithstanding 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 accoutrements 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 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 Lander (or federal 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 saying that the choices will reflect the reviewer's own interests, too. I have selected, in section 2 of what follows, fin de siecle 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 questions stemming from it, in section 5, aspects of the Vienna School of Legal Theory 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 siecle Legal Positivism in Public Law



Fin de siecle legal positivism in public law took its cues, above all, from Paul Laband (1838-1918). His well-known lines in the Foreword to his great treatise, Public Law of the German Reich, 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 considerations 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 constructivist work.



To be sure, Laband's dictum is a caricature, as some of his own work makes abundantly clear (see 25). 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'.



Stolleis is quick to add that it would be a mistake to suppose that Laband's dictum was altogether representative of the early 1920s (see 18, 24-25). Laun himself was favourably disposed to a sociological point of view-alongside, as he puts it, 'legal dogmatics', the traditional point of view -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) -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), which set the stage for the modern European debate on the unity of municipal and international law, Triepel was still very much under the influence of his teacher Karl Binding and Binding's constructivism. 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, whereas the law of nations stems solely from 'relations between states'. The respective sources of municipal law and international law are different, and so 'their respective content must be different, too'. 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'.



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 Rumelin of the Tubingen School of Interest Jurisprudence, Triepel transformed his methodology in major works of 1907 and 1908. Far from ruling out 'subjective value judgements', he now endorses them as necessary. 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.



Hans Kelsen's early work counts as an example of the second pattern vis-a-vis Laband's dictum. That is, Kelsen never was a proponent of the 'jurisprudence of concepts'. The popular view to the contrary notwithstanding, 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. 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. Kelsen was indeed engaged in concept formation from the beginning, common ground among fin de siecle 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 Munster 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 organisation'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) delivered a lecture with natural law trappings that prompted an extraordinarily heated exchange of views.



In his early treatise, The Nature of International Law and the Clause rebus sic stantibus (1911), Kaufmann had defended the view that what is lawful in the international 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 ultimate norm that decides which of the states is lawful'. 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.



In light of this background, Kaufmann's conversion at the 1926 meeting in Munster was remarkable. Save for his well-nigh pathological contempt for legal positivism of the Kelsenian variety, everything had changed. Kaufmann is now prepared to defend the equality provision, article 109 of the Weimar Constitution, 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 contain 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.



In his spirited defence of the equality provision, Kaufmann's starting point was not naive, 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. The equality provision, too, is to be understood as a principle of law. Differential treatment is acceptable only if it is 'just'. 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 known directly, which is to say that they are not definable either. 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 simply recognition 'of the fact that justice is something creative, not the mechanical application of rigid, abstract norms'. 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 personalities' 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'. 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'.



Hans Nawiasky (1880-1961), 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 theorist'. For Kaufmann, 'the law and ethics form, in a certain sense, a unity', whereas, for Nawiasky, these were altogether separate. Nawiasky then proceeded to develop a traditional, 'historico-systematic' interpretation of equality. He first distinguished three historical readings of the concept-'personal equality' (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'. Understandably, Kelsen saw Kaufmann's 'audacious' claim that positivism was finished 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 metaphysics. And-following a period of positivism and empiricism-the call for metaphysics is heard again, everywhere and in all fields of enquiry.



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.



As Stolleis writes, '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 Anschutz, Walter Jellinek, Richard Thoma, and others. On the other side was Hermann Heller, who, notwithstanding a political orientation close to Kelsen's, 'had long taken an anti-positivist stance [and] surely could not declare himself 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 parliamentary system, and the question of a new constitution for Germany were discussed at length during World War I. Views covered the political spectrum, including those of Gerhard Anschutz, 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. Then, 'in the critical phase leading up to the adoption of the constitution, with [developments that included] the convocation of the National Assembly in Weimar, interest in constitutional questions rose dramatically' (53). Unlike the 'professorial 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). Profoundly influenced by Otto von Gierke in legal theory and bourgeois left-liberal in his political leanings, Preuss had held a professorship at the new Academy of Commerce in Berlin since 1906. 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, 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' with political participation developing 'from below', as Stolleis neatly puts it. The result, in practical terms, was a 'strengthening of communal self-government' (55), a motif to which Preuss devoted his second major treatise. 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. The final draft of the Weimar Constitution contained an expansive catalogue of basic rights that was, to be sure, of merely programmatic import, with Preuss himself regarding such a catalogue as superfluous '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 emergency decrees. He saw the President both as a check on the tendency of the Lander to lay claim to sovereignty and, in the transition from a constitutional monarchy to a 'genuine' parliamentary democracy, as a counterbalance to the Parliament. But the President's broad powers weighed too heavily in the balance. 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.



This unhappy state of affairs, foreboding the destruction of parliamentary government 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. In 1931, Schmitt ups the ante, devoting an entire monograph to the issue, which prompted Kelsen to respond.



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 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-a-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.



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)!'



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. Subsumption can take place, Schmitt says, only if the subsuming norm is neither 'doubtful' 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'.



Kelsen's reply to this second requirement of Schmitt's model is telling:



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-a-vis adjudication 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



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 indefensible? The answer takes us to Schmitt's political programme. He is keen on 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 others making up the second camp in the aftermath of the 1926 meeting discussed above, was quick to accuse Kelsen of formalism. It is Schmitt, however, who is the formalist here, for his argument fits to a T the classical, two-fold characterisation 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 distinctions, 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 adjudication before a constitutional court cannot meet the requirements he himself had invented for his model of subsumption.



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.



I take up the latter first, for the beginnings of the Vienna School antedate Weimar 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, Alfred Verdross, who became a major figure in his own right in public international law, Josef L. Kunz, another important figure in public international law, n76 Felix Kaufmann, who, unlike the others in the Vienna School, had ties to the better-known Vienna Circle, Fritz Schreier, like Kaufmann also influenced by phenomenology, and Fritz Sander, the enfant terrible of the Vienna School, who, both gifted and disturbed, saw fit to claim that Kelsen had plagiarised 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. 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 Theory' in Czechoslovakia.



Stolleis provides a helpful sketch on the early development of Kelsen's legal theory (see 152-54) and reflects, too, on the 'specific Austrian environment' (see 155-56) in which Kelsen worked. Kelsen's early biography, while its general outlines are clear, holds certain puzzles. Stolleis, I think, points to the resolution 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 disputes. To illustrate the depth of their contempt, I want briefly to trace an 'argument' in Erich Kaufmann's pamphlet of 1921, A Critique of Neo-Kantian Legal Philosophy, 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 influenced 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 terms and endorsed, on legal policy grounds, a system of world government, going so far as to invoke the civitas maxima of Christian Wolff. Kaufmann replies:



f Kelsen is convinced that the purification of concepts according to the ideal of a world-law monism could contribute anything to the realisation of that ideal, this is a conviction that can only be based on a radically 'logicistic' metaphysics (logizistische Metaphysik) ... The metaphysics of this rationalistic logicism is so grotesque as to take on something of the grandiose.



To charge that Kelsen moves from the 'purification of concepts' to the realisation 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 positivism' associated with those-'among others, [Paul] Laband, [Rudolf] Stammler, [and Julius] Binder'-who had been 'influenced by neo-Kantianism'. Two years later, Rudolf Smend (1882-1975) entered the fray:



A theory of the state that, like the Vienna theory, pursues the greatest possible dissolution of ideal reality (geistige Wirklichkeit) into fiction,xxx, concealment, and deception-as belated descendant of rationalism-naturally finds especially appreciative support here [in Kelsen's theory].



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] criticism 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 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:



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.



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 Hohn', a member of the SS (262-63). Why, then, this brutal treatment of Kelsen, the unspeakable reference 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 Schmitt 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. Of course Kelsen was not a professional philosopher. Still, the Austrian reception of philosophers very far removed from Hegel and Hegelianism left its mark. In Kelsen's writings, the post-Kantians are conspicuous 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.



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 forms in Kelsen's work, coupled with his own hard-headed analytical approach. And the explanation is significant, for it is an explanation in legal theory, going beyond and complementing 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, or the extent to which Kelsen's own biting criticism prompted others to respond with verbal abuse. 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, 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, 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, which suspended all basic rights indefinitely and served in its practical effect to 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 warding off the acute danger of a Communist coup', 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. The Parliament was reduced to an 'organ of acclamation' 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. Those jurists who insisted on the continuing validity of the Weimar Constitution were, in Carl Schmitt's words, 'obviously unable to accustom themselves to the reality of the National Socialist state'.



Other voices, with political views diametrically opposed to Schmitt's, had come to the same conclusion. Gerhard Anschutz, who had been a leading figure in German constitutional law and a major participant in the Weimar methodological disputes, took early retirement at the University of Heidelberg in 1933 (see 174, 287) 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 government, 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 adherence to this system but its repeal, the end of the multi-party parliamentary state-a system 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.



What became of the leading figures in the Weimar methodological disputes after 30 January, 1933? Anschutz, as noted, took early retirement. Smend, 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, and Nawiasky in 1933, Jellinek in 1935 (see 287). Kaufmann lost his professorial post in 1934 and fled four years later, after his private seminar, the 'Nicolas Lake Circle', had come to light (see 262).



Carl Schmitt (1888-1985) is an altogether different case. To be sure, although his anti-liberal and anti-parliamentarian line was evident in the 1920s, he did not aim then at the establishment of a volkischer Fuhrer-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 justification of the Rohm murders, his organisation 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.



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 co-optation of those willing to do the Nazis' bidding. 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 summarises, '[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. As a way of underscoring translator 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, Milo Calda, translated an entire treatise of Franz Weyr's from the Czech into English 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 system, too. 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 standpoint 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 surface 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, comparative law, legal philosophy, or political theory-will be handsomely rewarded. The volume reviewed here is the third and, presumably, last volume of Stolleis's treatise, and the achievement that the treatise represents is epochal.

cuplav

FOOTNOTES:







n1 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-a-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.



n2 &#39andect law' (Pandektenrecht) refers to the law stemming from the piecemeal reception of Roman law that took place in Europe prior to codification. &#39andect', from the Greek, is familiar as a name for Justinian's Digests or &#39andects'. 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 fur Rechtswissenschaft und Gesetzgebung des Auslandes, 5 (1833), 199-212.



n3 William Blackstone, Commentaries on the Laws of England, 4 vols (Oxford: Clarendon Press, 1765-69), vol. 1, p 5 (std. pagination).



n4 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.



n5 After literally 150 years of neglect accompanied by a caricature of his views-albeit a decidedly prominent caricature, 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 Pandektistik nach G. F. Puchta (Cologne: Bohlau, 2004); Christoph-Eric Mecke, 'Begriff und System des Rechts bei Georg Friedrich Puchta' (dissertation Univ. Gottingen, 2006).



n6 For a rewarding statement, see Alexander Somek, 'Legal Formality and Freedom of Choice. A Moral Perspective on Jhering's Constructivism' (2002) 15 Ratio Juris, 52-62.



n7 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.



n8 See Franz Wieacker, History of Private Law in Europe, trans. Tony Weir (Oxford: Clarendon Press, 1996) at - - 20-4 (279-370). See also Jan Schroder, 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.



n9 See Stolleis, History, vol. 2 (n 10) at 315-28. A detailed statement is found in Walter Pauly, Der Methodenwandel im deutschen Spatkonstitutionalismus (Tubingen: J. C. B. Mohr, 1993) at 92-167.



n10 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, designated 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.



n11 'Legal positivism' is used in the secondary literature on fin de siecle German-language legal theory in a bewildering variety of ways: (1) Laband qua legal positivist is defending Begriffsjurisprudenz or the 'jurisprudence of concepts'. 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 Souveranitat und die Theorie des Volkerrechts (Tubingen: 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, recognisably positivistic (by our standards 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 Brockmoller, Die Entstehung der Rechtstheorie im 19. Jahrhundert in Deutschland (Baden-Baden: Nomos, 1997); Andreas Funke, Allgemeine Rechtslehre als juristische Strukturtheorie (Tubingen: Mohr Siebeck, 2004); and Walter Ott, Der Rechtspositivismus, 2nd edn (Berlin: Duncker & Humblot, 1992). I am using 'legal positivism' as Stolleis uses it, namely, to refer to (1), a view that represents an important part of his narrative.



n12 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 Spatkonstitutionalismus (n 9) at 168-245, and in Christoph Schonberger, Das Parlament im Anstaltsstaat (Frankfurt: Klostermann, 1997) at 83-182.



n13 Laband's treatise, Das Staatsrecht des Deutschen Reiches, first appeared in 1876-82. The 5th edn in 4 vols (Tubingen: J. C. B. Mohr, 1911) is most frequently cited.



n14 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 Schluter (ed.) (Berlin: Duncker & Humblot, 2004) at 159 (these lectures of Laband's appear for the first time in Schluter's volume).



n15 See, in particular, Otto von Gierke, 'Labands Staatsrecht und die deutsche Rechtswissenschaft', Schmollers Jahrbuch fur 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 criticises Laband and the fin de siecle legacy of a 'legal culture of purity'. On Gierke's criticism of Laband, see Bernd Schluter, Reichswissenschaft. Staatsrechtslehre, Staatstheorie und Wissenschaftspolitik im Deutschen Kaiserreich am Beispiel der Reichsuniversitat Strassburg (Frankfurt: Klostermann, 2004) at 375-87.



n16 (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: 'Socalled 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.



n17 Rudolf von Laun, 'Der Staatsrechtslehrer und die Politik', Archiv des offentlichen 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.



n18 Rudolf von Laun, 'Eine Theorie vom naturlichen Recht', Archiv des offentlichen Rechts, 30 (1913), 369-406 at 405; see also Laun's review of Hans Kelsen, Hauptprobleme der Staatsrechtslehre, and of Ignatz Kornfeld, Grundzuge einer allgemeinen Lehre vom positiven Rechte auf soziologischer Grundlage, in Grunhuts Zeitschrift fur das privatund offentliche Recht der Gegenwart, 39 (1912), 312-35.



n19 On Triepel, see the fine monograph by Ulrich M. Gassner, Heinrich Triepel. Leben und Werk (Berlin: Duncker & Humblot, 1999).



n20 Heinrich Triepel, Volkerrecht und Landesrecht (Leipzig: C. L. Hirschfeld, 1899).



n21 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 references at n 84.



n22 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 (Gottingen: Otto Schwartz, 1954), and Andreas Hoyer, Strafrechtsdogmatik nach Armin Kaufmann (Berlin: Duncker &Humblot, 1997).



n23 Triepel, Volkerrecht und Landesrecht (n 20), 9.



n24 Ibid, 18, 19.



n25 Ibid, 111. On Triepel's position, see Theo Ohlinger, Der volkerrechtliche Vertrag im staatlichen Recht (Vienna and New York: Springer, 1973) at 43-47; Gassner, Heinrich Triepel (n 19) at 446-69.



n26 Representative of the Tubingen 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).



n27 Heinrich Triepel, Unitarismus und Foderalismus im Deutschen Reiche (Tubingen: J. C. B. Mohr, 1907); Triepel, 'Die Kompetenzen des Bundesstaats und die geschriebene Verfassung' in Staatsrechtliche Abhandlungen. Festgabe fur Paul Laband, 2 vols [no editor] (Tubingen: J. C. B. Mohr, 1908), vol.2, 247-335.



n28 See ibid at 287.



29 Tagesspiegel (Berlin), 7 December, 1946, quoted in Gassner, Heinrich Triepel (n 19), 231.



n30 See text at nn 86-90.



n31 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).



n32 See e.g. Kelsen, Introduction to the Problems of Legal Theory (n 7) at - - 27-28 (55-57).



n33 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 judischer 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 Civiliser of Nations. The Rise and Fall of International Law 1870-1960 (Cambridge: Cambridge UP, 2002) at 249-61.



n34 Erich Kaufmann, Das Wesen des Volkerrechts und die Clausula rebus sic stantibus (Tubingen: J. C. B. Mohr, 1911), 153 (emphasis in original). For sharply-worded criticism of Kaufmann, see Kelsen, Das Problem der Souveranitat (n 11), - 54 (at 265).



n35 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.



n36 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 anything in common with Kelsen. See, as capturing Kaufmann's positivism, species (3) in my scheme at n 11.



n37 'All Germans are equal before the law.' (This is the first of six paragraphs in article 109.)



n38 Stolleis, History, vol. 3 (n 10), 182-83 (trans. altered).



n39 Erich Kaufmann, 'Die Gleichheit vor dem Gesetz im Sinne des Art. 109 der Reichsverfassung', Veroffentlichungen 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 (Gottingen: 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.



n40 This insight, expressly rejecting the thesis of statutory positivism (see n 11), was constitutionalised in the postWorld 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.



n41 Kaufmann, Gleichheit (n 39), 10 (emphasis in original), repr. Ges. Schr. (n 39), vol. 3, 253-54.



n42 Kaufmann, Gleichheit (n 39), 10 (emphasis in original), repr. Ges. Schr. (n 39), vol. 3, 253-54.



n43 Kaufmann, Gleichheit (n 39), 12 (emphasis in original), repr. Ges. Schr. (n 39), vol. 3, 255-56.



n44 Kaufmann, Gleichheit (n 39), 22 (emphasis in original), repr. Ges. Schr. (n 39), vol. 3, 264.



n45 Kaufmann, Gleichheit (n 39), 23 (emphasis in original), repr. Ges. Schr. (n 39), vol. 3, 265.



n46 On Nawiasky, see Hans F. Zacher, 'Hans Nawiasky (1880-1972). Ein Leben fur Bundesstaat, Rechtsstaat und Demokratie' in Deutsche Juristen judischer Herkunft (n 33), 677-92.



n47 Hans Nawiasky, 'Die Gleichheit vor dem Gesetz im Sinne des Art. 109 der Reichsverfassung', Veroffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer, 3 (1927), 25-43 at 25.



n48 Hans Kelsen, Aussprache [contribution to the discussion following Kaufmann's lecture], Veroffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer, 3 (1927), 53-55 at 53 (emphasis in original).



n49 Ibid.



n50 Ibid, 53-54 (emphasis in original).



n51 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 Demokratietheorie bei Hans Kelsen (Baden-Baden: Nomos, 1986, 2nd printing 1990), 28-29, 42-43, et passim; Stanley L. Paulson, 'The Neo-Kantian Dimension of Kelsen's Pure Theory of Law' (1992) 12 OJ LS 311-32, esp. 313-22.



n52 On Heller, see Stolleis, History, vol. 3 (n 10) at 175 n 160, and Christoph Muller, 'Hermann Heller (1891-1933). Vom liberalen zum sozialen Rechtsstaat' in Deutsche Juristen judischer Herkunft (n 33), 767-80.



n53 On Anschutz, see Horst Dreier, 'Ein Staatsrechtslehrer in Zeiten des Umbruchs: Gerhard Anschutz (1867-1948)', Zeitschrift fur Neuere Rechtsgeschichte, 20 (1998), 28-48.



n54 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).



n55 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 Muller, 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 Gunther Gillessen, Hugo Preuss (Berlin: Duncker & Humblot, 2000) (completed in 1955), and Siegfried Grassmann, Hugo Preuss und die deutsche Selbstverwaltung (Lubeck and Hamburg: Matthiesen, 1965). In the recent literature, see the full-dress monographic study of Preuss by Detlef Lehnert, Verfassungsdemokratie als Burgergenossenschaft (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 judischer Herkunft (n 33), 429-53; Schonberger, Das Parlament im Anstaltsstaat (n 12) at 367-404; Vom Untertanenverband zur Burgergenossenschaft, Detlef Lehnert and Christoph Muller (eds) (Baden-Baden: Nomos, 2003).



n56 On Gierke, see the lucid statement in Stolleis, History, vol. 2 (n 10), 337-40.



n57 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 &#39reuss 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.



n58 Hugo Preuss, Gemeinde, Staat, Reich als Gebietskorperschaften (Berlin: Julius Springer, 1889).



n59 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 Principles of Social Order, rev. edn, Kenneth I. Winston (ed.) (Oxford and Portland, Oregon: Hart, 2001), 81-99.



n60 Hugo Preuss, Die Entwicklung des deutschen Stadtewesens (Leipzig: B. G. Teubner, 1906).



n61 See Hugo Preuss, 'Denkschrift zum Entwurf des allgemeinen Teils der Reichsverfassung vom 3. Januar 1919' in Preuss, Staat, Recht und Freiheit (Tubingen: J. C. B. Mohr, 1926), 368-94 at 374-79 (the paper was first published in the Rechtsanzeiger, 20 January, 1919).



n62 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 Borsen-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.



n63 See Preuss, 'Denkschrift' (n 61) at 387.



n64 '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 (Tubingen: 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.



n65 Carl Schmitt, 'Das Reichsgericht als Huter der Verfassung' in Otto Schreiber (ed.), Die Reichsgerichtspraxis im deutschen Rechtsleben. Festgabe der juristischen Fakultaten zum 50 jahrigen Bestehen des Reichsgerichts, 6 vols (Berlin and Leipzig: Walter de Gruyter, 1929), vol. 1, 154-78; Carl Schmitt, 'Der Huter der Verfassung', Archiv des offentlichen Rechts, 55, N.F. 16 (1929), 161-237.



n66 Carl Schmitt, Der Huter der Verfassung (Tubingen: J. C. B. Mohr, 1931); Hans Kelsen, 'Wer soll der Huter der Verfassung sein?', Die Justiz, 6 (1930-31), 576-628.



n67 Schmitt, Der Huter der Verfassung (n 66), 37-38 (emphasis in original).



n68 Kelsen, 'Wer soll der Huter 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 judgement-making machine; from the rear, the case qua judgement comes out again.' Von Jhering, Der Zweck im Recht, 3rd edn, 2 vols (Leipzig: Breitkopf & Hartel, 1893), vol. 1, 394.



n69 Schmitt, Der Huter der Verfassung (n 66), 19.



n70 Kelsen, 'Wer soll der Huter der Verfassung sein?' (n 66), 588.



n71 See text at n 52.



n72 See Carl Schmitt, Verfassungslehre (Munich and Leipzig: Duncker & Humblot, 1928) at 8-9; Schmitt, Der Huter 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.



n73 '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.



n74 An edition of Merkl's collected works is in progress; see my review in Ratio Juris, 17 (2004), 263-67.



n75 See e.g. Alfred Verdross and Bruno Simma, Universelles Volkerrecht, 3rd edn (Berlin: Duncker & Humblot, 1984), which, like the earlier editions, has been a standard work in the field.



n76 See e.g. Josef L. Kunz, Volkerrechtswissenschaft und reine Rechtslehre (Leipzig and Vienna: Franz Deuticke, 1923); Kunz, Die Staatenverbindungen (Stuttgart: W. Kohlhammer, 1929); Kunz, 'The 'Vienna School' and International Law', New York University Law Quarterly Review, 11 (1933-4), 370-421.



n77 See, in legal theory, Felix Kaufmann, Logik und Rechtswissenschaft (Tubingen: J. C. B. Mohr, 1922), and Kaufmann, Die Kriterien des Rechts (Tubingen: 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 Positivismus und Phanomenologie: Felix Kaufmanns Methodologie der Sozialwissenschaften' in Hans-Joachim Dahms (ed.), Philosophie, Wissenschaft, Aufklarung. Beitrage 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 (Tubingen: J. C. B. Mohr, 1911) at 5-6 n, 14 n, 161 n. For other aspects of Kelsen vis-a-vis the Vienna Circle, see Stanley L. Paulson, 'Zwei Wiener Welten und ein Anknupfungspunkt: Carnaps Aufbau, Kelsens Reine Rechtslehre und das Streben nach Objektivitat' in Clemens Jabloner and Friedrich Stadler (eds), Logischer Empirismus und Reine Rechtslehre (Vienna and New York: Springer, 2001), 137-90.



n78 See e.g. Fritz Schreier, Grundbegriffe und Grundformen des Rechts. Entwurf einer phanomenologisch begrundeten formalen Rechtsund Staatslehre (Leipzig and Vienna: Franz Deuticke, 1924).



n79 In 1936, Kelsen, in Geneva, received an offer to teach in Prague and decided to lecture there initially as a visiting 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 supporter of the Nazi movement in Czechoslovakia, to which Kelsen remarked that this had to be a pretty risky business, given that Sander, too, was of Jewish ancestry. Sander shrugged and replied that he no longer had any choice. Rudolf Aladar Metall, Hans Kelsen. Leben und Werk (Vienna: Franz Deuticke, 1969), 72-73 (Metall's account draws on the second of Kelsen's autobiographical statements).



n80 See e.g. Die Brunner rechtstheoretische Schule, Vladimir Kube and Ota Weinberger (eds) (Vienna: Manz, 1980), which contains papers by Weyr.



n81 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.



n82 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-doctoral 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 constitution. 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 centralised 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 marriage 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 emigrated to the United States.



n83 Erich Kaufmann, Kritik der neukantianischen Rechtsphilosophie (Tubingen: J. C. B. Mohr, 1921), repr. in Kaufmann, Ges. Schr. (n 39), vol. 3, 176-245.



n84 See Ohlinger, Der volkerrechtliche Vertrag im staatlichen Recht (n 25) at 40-57, 94-102, and Stanley L. Paulson, 'Souveranitat und der rechtliche Monismus. Eine kritische Skizze einiger Aspekte der fruhen Lehre Hans Kelsens' in Stefan Hammer et al. (eds), Demokratie und sozialer Rechtsstaat in Europa. Festschrift fur Theo Ohlinger (Vienna: WUV Universitatsverlag, 2004), 21-40 at 31-40.



n85 Kelsen, Das Problem der Souveranitat (n 11), - 53 (249-57).



n86 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 thesis, 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.



n87 Hermann Heller, 'Die Krisis der Staatslehre', Archiv fur Sozialwissenschaft und Sozialpolitik, 55 (1926), 289-316 at 303, repr. in Heller, Gesammelte Schriften, 2nd printing, 3 vols, Christoph Muller (ed.) (Tubingen: 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.



n88 On Smend, see Stolleis, History, vol. 3 (n 10) at 164-6, and Manfred Friedrich, 'Rudolf Smend 1882-1975', Archiv des offentlichen 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).



n89 Rudolf Smend, Verfassung und Verfassungsrecht (Munich and Leipzig: Duncker & Humblot, 1928), 95, repr. in Smend, Staatsrechtliche Abhandlungen und andere Aufsatze, 3rd edn (Berlin: Duncker & Humblot, 1994), 119-276 at 204.



n90 Rudolf Smend, 'Zu Erich Kaufmanns wissenschaftlichem Werk' in Um Recht und Gerechtigkeit. Festgabe fur Erich Kaufmann zu seinem 70. Geburtstag (Stuttgart and Cologne: W. Kohlhammer, 1950), 391-400 at 395.



n91 See references at n 88. After being forced out at the University of Berlin, Smend was appointed professor of law at the University of Gottingen.



n92 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 judischen 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.



n93 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).



n94 See Alfred Verdross [Selbstdarstellung] in Nikolaus Grass (ed.), Osterreichische Rechtsund Staatswissenschaften. Der Gegenwart in Selbstdarstellungen (Innsbruck: Wagner, 1952), 201-10 at 201.



n95 On Hegelianism in the Weimar period, see Sylvie Hurstel, '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 neoHegelianism qua apologetics for the regime. See Ralf Dreier, 'Julius Binder (1870-1939). Ein Rechtsphilosoph zwischen Kaiserreich und Nationalsozialismus' in Fritz Loos (ed.), Rechtswissenschaft in Gottingen. Gottinger Juristen aus 250 Jahren (Gottingen: Vandenhoeck & Ruprecht, 1987), 435-55, repr. in Dreier, Recht-Staat-Vernunft (Frankfurt: Suhrkamp, 1991), 142-67 (with additional notes, see ibid at 166-67).



n96 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.



n97 On Kelsen's replies to Kaufmann, see n 34 and text at nn 48-51. Kelsen replies to Smend in Der Staat als Integration. 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 [concluding statement following his lecture], Veroffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer, 5 (1929), 117-23 at 121-23.



n98 For an instructive, richly documented statement on Heinrich Bruning'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 Bruning and the Dissolution of the Weimar Republic (Cambridge: Cambridge UP, 1998) at 220-305.



n99 'Verordnung des Reichsprasidenten 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.



n100 'Verordnung des Reichsprasidenten zum Schutz von Volk und Staat v. 28.2.1933', Reichsgesetzblatt, pt. i (1933), 83.



n101 Hans-Ulrich Wehler, Deutsche Gesellschaftsgeschichte, vol. 4: Vom Beginn des Ersten Weltkriegs bis zur Grundung der beiden deutschen Staaten 1914-1949 (Munich: C. H. Beck, 2003), 605.



n102 'Gesetz zur Behebung von Volk und Reich v. 24.3.1933', Reichsgesetzblatt, pt. i (1933), 141.



n103 Stolleis, History, vol. 3 (n 10), 332, referring here to Peter Hubert, Uniformierter Reichstag. Die Geschichte der Pseudo-Volksvertretung 1933-1945 (Dusseldorf: Droste, 1992).



n104 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 fur Gerhard Otte zum 70. Geburtstag (Munich: Sellier, 2005), 495-507.



n105 Carl Schmitt, Staat, Bewegung, Volk (Hamburg: Hanseatische Verlagsanstalt, 1933), 6, quoted in Stolleis, History, vol. 3 (n 10), 333 n 10 (trans. altered).



n106 Here, in a rare slip on the part of the translator, 'Emeritierung' is rendered as 'emigration' rather than as 'emeritus status'. See Stolleis, History, vol. 3 (n 10) at 174, and cp. the German text of vol. 3: Geschichte des offentlichen Rechts in Deutschland. Dritter Band 1914-1945 (Munich: C. H. Beck, 1999) at 182.



n107 Gerhard Anschutz, 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).



n108 See n 91.



n109 See n 82.



n110 On Schmitt, see Stolleis, History, vol. 3 (n 10) at 169-73, 264, 340-3, 418-22, et passim. Among the Englishlanguage 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 Muller, 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).



n111 See, in particular, Carl Schmitt, The Crisis of Parliamentary Democracy, trans. Ellen Kennedy (Cambridge, Mass.: MIT Press, 1985) (first published in 1923).



n112 Stolleis, History, vol. 3 (n 10), 173 (trans. altered); see also n 92.



n113 See ibid at 332-431; see also Horst Dreier, 'Die deutsche Staatsrechtslehre in der Zeit des Nationalsozialismus', Veroffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer, 60 (2001), 9-72.



n114 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 translation of 'Rechtswissenschaft', that is, 'legal science', rather than 'jurisprudence'. The latter fails to convey anything 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 matter-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 proposition (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, 'Arriving at a Defensible Periodisation of Hans Kelsen's Legal Theory' (1999) 19 OJ LS 351-64 at 355-60.



n115 See text at n 80.



n116 An example is the development of centralised constitutional review in the two countries at the same time and largely from the same sources. See Herbert Haller, Die Prufung von Gesetzen (Vienna and New York: Springer, 1979) at 61-67; Theo Ohlinger, 'The Genesis of the Austrian Model of Constitutional Review of Legislation' (2003) 16, Ratio Juris 206-22 at 207 n 3.



n117 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.

天大地大

谢谢呀，不错的说

worm0628

这是一本不错的书！

cuplav

由于我的疏忽，误将上述书评的作者Stanley L. Paulson错写为Alexy，为我的不严谨深感歉意，希望各位能原谅鄙人的疏漏。
该文的citation是25 Oxford J. Legal Stud. 525，可在westlaw中检索到