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On the Three Types of

Juristic Thought
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kffresi Seilzer
On the Three Types of
Juristic Thought

Carl Schmitt
Translated by Joseph W. Bendersky

C o n t r i b u t i o n s in P o lit ic a l S c ie n c e , N n n i b c r 397

G l o b a l P e r s p e c t iv e s in H is t o r y a n d P o litic s

G eorge Schw ab, Series E d it o r

0) ^ Westport, Connecticut
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Sch n iitl, C arl, I8.S8-


[U b e i d ie d re i ;\j ten des re d its w is seiis d ia ftlich e n D en ken s.
E n glish .]
O n the th re e types o f ju ris tic th o u g h t/ C a rl S d u n ilt ; translated by J osep h W.
B endcisky.
p. cm . {C o n trib u tio n s in po litiea l science, IS S N 01471066 ;
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teacher, fr ie n d , g u a r d ia n
Contents

.\( kiiowledgments ix

lull ofliiction: T h e Th ree Types o f Juristic Thought in


( ierinan Historical and Intellectual Context 1
J o s e p h W . B en d ersk y

I. Distinctions among Juristic Ways o f Thinking 43

I . Rule and Statute Th inking (Norm ativism )


and C oncrete-Order Th inking 47

Decisionist Th inking (Decisionism ) 59

Nineteenth-Century Juristic Positivism as a


( lombination o f Decisionist and Statute Thinking
(Decisionism and Norm ativism ) 63

II. Classification o f Juristic Ways o f Thinking in the 73


Overall Development o f Legal History

I . ( lerman D evelopm ent U p to the Present 75

Developments in England and France 85

3. fh e Current Condition o f German Jurisprudence 89

(in c lu s io n 97
viii C ontents

Notes 101

Bibliography 115

In dex 121
Acknowledgments

This translation o f On the Three Types o f Juristic Thought is part o f


I lie continuing sttidy o f the life and ideas o f Carl Schmitt tliat
lias occupied a good part o f my scholarly endeavors over die
past thirty years. However, it could not have been brought to
li iiilion without the generous assistance o f others. G eorge
S< hwab o f the Graduate Center o f the City University o f New
Mirk encouraged the initiation o f this important translation
pKiject and regularly prod ded me to bring it to com pletion. H e
was also kind enough to read die entire work and suggest useful
I (-visions. I owe a m ajor debt as well to Paul F. Dvorak and Mar
garet T. Peischl o f the Foreign Language Departm ent o f V ir
ginia Com m onwealth University. They devoted con.siderable
lime to assisting m e in translating particularly difficult German
passages into readable English sentences and paragraphs that
K'lained the precision and tone o f the original German. At var
ious points I also called upon the scholarly experti.se o f Arthur
Ik Cunlicks o f the Political Science Departm ent at the Univer-
siiy o f Richmond.
Introduction: The Three Types of
Juristic Thought in German Historical
and Intellectual Context
Joseph W. Bendersky

IIISTORIOGRAPHICAL TRENDS

D espite its brevity, Carl Schmitts On the Three 'Types o f Juristic


Thought ranks am ong his most important contributions to politi-
( al and legal theory. It offers a disturbing challenge to long-
sianding, comm only assumed liberal ideas, ideals, and standards
ol law, particularly as they relate to government and political cul-
iiire. Within these pages, Schmitt provides perhaps his clearest
and most elaborate critique o f the legal positivism and norma-
livism so closely linked to the political liberalism o f his day. It is a
( I itique with continuing relevance fo r our own time. By under
mining the com forting but no longer tenable claim to certainty
and objectivity o f positivism and normativism, Schmitt opened
(lie way fo r the elements o f contingency and indeterminacy at the
very heart o f contem porary debates over social and political
modernity.'
I his work also documents a dramatic shift in Schmitts think
ing that had been gradually developing since the late 1920s. H e
now exposes and critiques the limits o f the very decisionist legal
and political theory he earlier espoused and with which his
name is still inextricably associated. In this respect, a reading o f
On the Three Types o f Juristic Thought, where he introduces his
( ((tu:ept o f concrete-order thinking, is essential to avoid the
2 O n the Three Types o f J u ristic T h o u g h t

many misconceptions and misrepresentations oi' him and his


decisionism. A n d beyond clarifying his theoretical stand, his
concept o f concrete orders, with its emphasis upon traditional
institutions, community, and cultural foundations, reconfirm s
that Schmitt rem ained primarily a traditional conservative
thinker.
Hcwever, fo r over h a lf a century, Carl Schmitts On the Three
Types o f Juristic Thought received rather scant attention. Pub
lished in the early stages o f the Th ird Reich, this b o o k s contri
bution to legal theory appeared highly dubious. Schmitts
scathing critique o f liberal legal principles and practice, written
as he acquiesced to the new National Socialist political reality in
Germany, confirm ed the reservations many had about his politi
cal and legal theory. U nlike the reputable academic publishers,
such as Duncker and H um blot in Berlin, which had issued his
earlier books. On the Three Types o f Juristic Thought was published
in 1934 by the Hanseatische Verlagsanstalt in Hamburg, a house
famous fo r its right-wing nationalist, and then Nazi, authors and
readership. That this book also appeared as a publication o f the
Nazi Academ y o f German Law under the editorship o f Reich
Minister Dr. Hans Frank further dam aged its credibility am ong
legal scholars.
Th e wartime treatment o f this book by Ernest Fraenkel and
Franz Neumann, two leftist migrs intimately familiar with
Schmitts Weimar writings, probably reflected the widespread
estimate o f its value fo r decades thereafter. Although Fraenkel
called it the most influential Juridical study o f recent years
by the most brilliant political theorist o f post-war Germany,
he found its theoretical shortcom ings highly problem atic.
Fraenkel ultimately condem ned it as nothing but the new legiti
mation o f this capitalistic legal order o f Nazi Germany. A nd in
his classic study. Behemoth: The Structure and Practice o f National So
cialism, Neumann dismissed it as a major part o f the theoretical
foundation I'or a legal system that was nothing but a technique
o f mass manipulation by terror. Thus, it was not sui prising that
utvodudion 3

(luring the subsequent decades in which Schmitt and his ideas


were either universally condem ned or ignored, this work in par-
li( ular suffered a similar fate.*
However, the international renaissance in Schmitt studies that
l)cgan in the 1980s has opened the way fo r various reintcrpreta-
lions o f this jurist and his work. Earlier characterizations o f him
as a forerunner o f National Socialism, a nihilist, or an amoral
opportunist now have been challenged by diverse perspectives
ol this enigmatic figure, ranging from depictions o f him as a tra
ditional conservative thinker to the m ore recent argument o f
(crtain German scholars that he was a theological thinker.* M ore
id lin g still are the latest series o f publications in English in
which even his most strident critics acknowledge the enduring
significance o f his theory. As one conceded, Schmitts critique
o( liberalism captures better than contem porary critics the
problem atic nature o f liberalism . Others em phasized his lu
ll ucnce on the constitutional .system o f the Federal Republic
o f Germany, particularly the Gonstitutional Gourt and its rela-
lionship to popular sovereignty and democracy. Schmitt has
even been called the god fa th er o f contem porary Am erican
(onservatism . '
As part o f this renewed interest, several o f Schmitts major
Weimar works have been translated into English.* Although this
( Iearly indicates an increasing recognition o f Schmitts impor-
lance in the history o f legal and political theory, especially o f
his significant Weim ar contributions, his compromises with the
Nazi regim e automatically render anything he wrote during
I hose years as inherently suspect and likely to be dismissed out
o( hand.
Nonetheless, while this revisionist scholarship has been em erg
ing, there have been various signs that, despite the taint o f Nazism,
some o f Schmitts works from the H itler era also warrant serious
examination. It has been realized that such analyses are nece.s-
sary to fully grasp the evolution in Schmitts thinking, as well
as his relationship to National Socialism. M oreover, G eorge
4 O n the Three Types o f Ju ris lie T h o u g h t

Scliwab pointed out quite early in this rvaluation process that,


his collaboration notwithstanding, Schmitts writings during
these years retained fundamental conservative characteristics in
contrast to Nazi ideolog)' and policies. Equally important, Schwab
showed not only how essential concepts in On the Three Types o f Ju
ristic I'hcmght were outgrowths o f Schmitts earlier legal ideas, but
also how they were part o f a broader tradition o f European legal
thought on institutions, which included the prolific and highly
respected work o f such distinguished French thinkers as Maurice
Hauriou and Cieorge Renard."
Still, it has only been since the late 1980s that the notion o f
concrete orders em bodied in On the Three Types of Juristic Thought
has becom e the focus o f direct attention. A t an international con
ference on Schmitt in 1986 at Speyer, Germany, two prom inent
German legal scholars, Joseph H. Kaiser and Ernst-Wolfgang
Bckenfrde, suggested that concrete orders and institutional
thinking have a continuing relevance in politics and law. It was
just such suggestions that concrete orders and institutional
thinking might have any validity or current acceptance in law
that has long greatly alarmed another German legal scholar and
Judge, Bernd Rthers.*'
ln Rtherss m ind, the experience o f National Socialism
demonstrated categorically that law can degenerate into an in
strument o f state tei ror, and he identifies Schmitt as the very
paradigm o f the kind o f German jurist whose ideas and actions
facilitated that perversion o f law. Thus, Rthers was greatly dis
turbed by the growing interest in Schmitt on the part o f both
rightist and leftist thinkers in contem porary Germany and else
where. An early critic o f institutional theory, Rthers argued
that this type o f thinking had actually reem erged rather quickly
in Germany after 194,5, overtly in legal theory, as well as in the
practice o f constitutional and civil law, and in disguised form s
in other areas o f law and sociological theory. Rthers is con
vinced that, as before, the acceptance o f institutional form s o f
thinking and general clauses endangers dem ocratic equality
I iilro/ h irlion 5

.1 1 1 ( 1 individual rights; it also poses a serious and ominous chal


lenge to the entire constitutional form o f government.*
Ingeborg Mans, on the other hand, has argued that Schmitts
legal ideas had already long pervaded Germanys postwar system.
Reviving a Marxian analysis she imposed on Schmitt decades
.igo, Maus has continued to insist Schmitts ideas w ere always
directed at m aintaining dom ination by the bourgeoisie and
m onopoly capitalism as opposed to the social and econom ic in-
ici esls o f other segments o f society. W hen W eim ar collapsed,
S( hmitt m erely turned to institutions, concrete orders, and
general clauses to achieve the same objectives under National
Socialism. Maus sees continuity in Schmitts thought and influ-
ciK e not only from W eim ar to the T h ird Reich but down to the
prc-sent. Schmitts work was from the outset, she writes, the
sc( ret dom inant legal theory o f the Federal Republic, particu
larly the Gonstitutional Gourt."
A l the same time, ironically, TELOS, form erly a key journal
am ong those Marxist intellectuals in Am erica devoted to the
l i ankfurt Schools legacy o f critical theory, has taken a special
i merest in Schmitt. Its editor, the late Paul Picconc, had gradu-
.illy integrated m ore and m ore Schmitlian concepts into his own
( ritical political and sociological analyses until he reached the
point o f presenting On the Three Types o f Juristic Thought'as. avAu-
al)le contribution to the theoretical fram ework o f a postmodern
brand o f communitarianism and new form o f populist legiti
macy fo r governm ent.'"
In one o f the most recent major studies, Andreas Koenen ar
gues that with concrete-order thinking and institutionalism
S( hmitt was attem pting to guide the H itler regim e into a m ore
(onservative and le.ss radical direction during the early stages o f
die Th ird Reich. Essentially, Koenen has taken Schwabs earlier
nierpretation and added what is now referred to in historiogra
phy as the theological twist. For Koenen believes Schmitt was
pursuing much m ore than traditional conservative political and
( ultural goals. Rather than merely seeking to constrain Nazi
6 O n the Three Types o f J iir is lic T h o u g h t

extremism, and thereby preserve as much o f traditional G er


man society and culture as possible, Schmitt, a devout Catholic
political activist, was actually hoping to realize a Christian coun
terrevolution during the Th ird R e ich ."
W hether one considers On the Three Types o f Juristic Thought a
foundation o f Nazi legal theory and practice or a failed attempt
at a conservative counterweight to the most extrem e tendencies
in National Socialism, it was definitely a transitional work fo r
Schmitl. Th ere is an undeniable continuity with Schmitts pre-
Nazi critiques and ideas on legal and political theory. In this re
spect, it reflects the evolution in his thinking in the course o f a
natural intellectual developm ent o f ideas. On the other hand,
these preexisting theories and ideas are clearly adjusted to ac
com m odate the new political realities after the Nazi Machler-
greifung.
That On the I'kree Types o f Juristic Thought consiuied a grafting
o f the new upon the old is strongly suggested not only from the
actual content o f this work, but also from the d ifferin g public fo
rums in w'hich Schmitt introduced his theory o f concrete-order
thinking. Th e first was a very traditional academic venue, the
Kaiser-Wilhelm Society fo r the Advancement o f Science, where
he lectured on February 21, 1934. Th ere, Schmitt felt com
fortable am ong old and respected professional colleagues. A l
though in such settings Schmitt had often encountered heated,
often hostile, debates, he shared with such intellectual critics a
com m only accepted set o f professional values, standards, and
expectations concerning scholarship, as well as society. A few
weeks later, on March 10, he spoke before the Reich Group o f
Young Jurists o f the National Socialist League o f German Jurists.
W hile this group included fam iliar professional and academic
types, it definitely represented the em erging forces o f Nazisni
gradually penetrating m ore and more o f traditional society. H ere,
the personnel, the ideas, and the still rather indeterm inate ex
pectations differed significantly from the academic and public
arenas in which he had functioned throughout his distinguished
Iiilmduc.lion 7

|)i ()fessional career. This was the new m ilieu in which Schmitt
had been cautiously feeling his uncertain way since the spring o f
1933.

I HE CONTINUING STRUGGLE AGAINST LEGAL


POSITIVISM AND NORMATIVISM

Those scholars who argue the importance o f concrete-order


( ( incepts and institutional thinking could point out the great ex-
icnl to which this work is really vintage Schmitt. Indeed, one
(ou ld contend that Schmitts arguments regarding concrete or
ders would lose little, if anything at all, by purging those aspects
relating to National Socialism. Much o f this work is, in fact, a
(ontinuation o f the struggle against legal positivism and norma-
liv ism that Schmitt had been waging fo r decades. A nd though
mentioned only briefly, the shadow o f Hans Kelsen, Schmitts
I let ennial adversary in jurisprudence, is evident to anyone knowl
edgeable about either thinker. Kelsen was an intellectual heir to
Ilie nineteenth-century jurisprudential tradition o f German legal
positivism, which had attempted to develop a value-neutral ap-
I IK lach that dictated an inviolable separation between law and all
oilic-r nonlegal spheres such as politics, morality, or society.
I'his .school o f legal thought (fou nded by Garl Friedrich von
( tci her and further elaborated by Paul Laband and G eorg
Meyer) had acquired one o f its most renowned W eim ar prop o
nents in Gerhard Anschiitz.'* B eginning with the founding o f
the Bismarckian Reich, positivism becam e the prevailing form
III German legal thought in the latter h a lf o f the nineteenth
( eiitury. A nd fo r law, as was the case with other disciplines, this
meant an increasing emphasis on observation and analysis in-
\ ie a d o f on idealist assumption or philosophical speculation. It
,ilso signified a turning away from the universalism o f natural
l.iw and a turning toward law as a creation o f the individual
s(i\creign state. Each o f these trends was an outgrowth o f the
8 O n the Three Types o f J u ris tic T h o u g h t

general scienlilic empiricism o f a materialistic, positivistic era


and o i the triumph o f German national power and sovereignty
that follow ed unification.' German legal positivists like Laband
argued that law was granted by the sovereign slate, and it was the
responsibility o f jurists to develop an empirical and .systematic
analysis o f legal norms as they existed in statutes, decisions, and
practice. Because positivist law consisted o f the norms created
by the power o f the sovereign state that recognized no higher
anthority, the ethical principles em bodied in natural law theo
ries, which might conflict with these norms o r with the power
o f the state, were disregarded." In the process, law became
equated m ore and m ore only with legal statutes to such an ex
tent that legal positivism is sometimes described as slalnte posi
tivism.'
It would be fo r Kelsens normativism and reine Rechtslehre
(theory o f pure law) that Schmitt reserved some o f his harshest
criticism. To KcLsen, law was norm. A ll form s o f law, which in
themselves were nothing but norms, had emanated from an
original Grundnorm (fundam ental norm ). T h e task o f jurists was
to analyze objectively the nature and relationship between this
fundamental norm and those legal norms derived from it, as well
as the applicability o f these legal norms to actual cases, within
narrow legalistic confines. In order to protect the purity and
value-neutrality o f law from anything whicli might taint itsJui istic
clarity and autonomy, jurists were obligated lo exclude from con
sideration such potentially contaminating factors as history, poli
tics, morality, sociology, and so o n ."
W hile laudable in the abstract as a goal o f scientific and schol
arly inquiry, Schmitt argued, the hxation o f Kelsen and other legal
posilivisLs on wissenschaftliche Objektivitt (scientific objectivity)
m ade their entire theoretical approach impractical, inade
quate, and potentially dangerous. Normativism neglected the in
escapable political and sociological realities, as well as the crucial
elem ent o f historical change, that inevitably bear on law and its
actual relationship to society. Normativists excluded as beyond
! iih o iliu iio n 9

I he scope o f ju risp ru den ce inescapable questions co n c ern in g le-


I'.iiirnacy, power, and sovereignty. In both their gen eral jurispru-
dciK c and constitutional theory, the legal posilivisLs also basically
separated Rechtsmdssigkeit fr o m Rechtswirksamkeil, the justice o f
I.iws from their effectiveness. '"
By the early twentieth century, legal positivism was under
.iil.ick from several quarters. Together with the neo-Kantian
I espouse there had em erged the Free-Law M ovem ent {Freirechls-
Iclnr) and various schools o f neo-Hegelian thought, each an-
iipositivist and idealist in orientation. Th e neo-Kantian Jurists,
licsl represented by R u d o lf Stammler, disputed the absolute
I ><>wer o f the state in establishing Recht (right or right la w ); in-
si< ad, they contended there was a right law above the norms
I icaled by the state. This idea o f a high er or right law was
nol a return to natural-law theory, and the concept always re
in.lined vague, yet it did contain the precept that Recht existed
I l( n e its establishment by the state and that it was not depcnd-
i iii upon state power. A greein g that Rechtd\d not emanate from
I lie state, the neo-Hegelians argued, nonetheless, that it arose
I Him within society itself. O f the prom inent neo-Hegelians,
|nscl Kohler held that each society assumes certain general
III iiu iplcs o f right and that it is the function o f jurists lo analyze
ilicse and derive ideals to which laws should conform . T h e
mcmhcrs o f the Free-Law Movem ent, such as Fugen Fhrlich,
vvcic m ore concerned that law be created and administered in
, 1 1 (ordance with Justice and equity. For this purpose, they would
.illow a ju d ge considerable discretion in arriving at different in-
I' l prctations o f higher legal norm s.'"
A fundamental question raised by these new schools o f
iliuiight was how to determ ine when the right legal decision
II .id l)cen reached. From the positivist point o f view, it would be
iIk- function o f the judge to interpret the legal statute, or writ-
icii norms, in strict conform ity with the will o f the lawgiver.
W'llli Ihe new emphasis on right law, the positivist notion that
I lie (o rrec t legal decision would be one which adhered to the
10 O n the Three Types o f J u ris tic T h o u g h t

lilenil w ording ol' die statute was totally inadequate. Free-Law


advocates were now willing to perm it a ju d g e to ignore the letter
o f the statute where it did not conform to fundamental princi
ples o f justice and right.'"
But the question still rem ained as to whether judicial deci
sions arrived at in tfiis m anner approxim ated the dictates o f
right law. Th e young Carl Schmitt was convinced the solution to
this problem must com e from within the legal profession itself.
.After publishing his doctoral dissertation on the concept o f
guilt and types o f guilt,*" he turned his attention to the question
o f when a legal decision is right {Richtig).
In his second m ajor publication, Gesetz und Urteil (1912),
Schmitt stated that the will o f the lawgiver, the literal w ording o f
the statute, and even the subjectivity o f the ju d ge, all fail to pro
vide the criteria fo r evaluating the correctness o f a legal deci
sion. Disagreeing with the positivist concept o f law, he asserted
that the judge is neither a legislator nor the mouth o f the law.
A ju d g e could not decide strictly in accordance with the will o f
the lawgiver, because in most cases diificulties arise in deter
m ining the actual intent o f the lawgiver. N either could the pre
cise w ording o f the statute serve as the criterion fo r a right
decision, because most statutes require interpretation. Simi
larly, the subjective legal interpretation o f a ju d g e is no guaran
tee o f a right decision. H e concluded, therefore, that a legal
decision could be considered right when another ju dge would
decide that very case in the same manner. A nother ju d g e signi
fies here the em pirical type o f m odern ju d g e trained in ju
risprudence. A ccord in g to Schmitt, a ju d g e could conceivably
even arrive al a decision contrary to the literal w ording o f a
statute, and this decision would still be right, so long as another
ju d g e would decide the case likewise.*'
W hile the extensive latitude he allowed the judge in m aking
a legal decision resem bled the outlook o f Free-Law thinkers,
the thrust o f Gesetz und Urteil was at the same tim e one o f the
Iiiln id u r tio n 11

most pronounced indications o f the new type o f legal thought


known as decisionism , which Schmitt would introduce in
I I If 1920s. A fter overcom in g his own p re -W o rld W ar I neo-
Kantianism, Schmitt, however, had becom e a starkly realistic
political and legal thinker with a strong sociological orienta-
lion. In his m ind. Jurists had to surmount the tradition o f ab-
siract norm ativism and form ulate theories and analyses that
I elate law with actual political and societal circumstances and
loices. Thereafter, the phrase concrete situation would re-
i.iiu a central place in his legal and political writings such as
I'dlilieal Theology (1922) and Legalitt und Legitimitt (1932).
( !ci lain phrases, in fact, w ere recogn ized as distinctly Schmitt-
laii; a philosophy o f real life, an adequate expression o f reality,
jurislisch Konkreten, value- and reality-neutral functionalism,
.md truth will avenge itself.""
Norm alivism s inability to accom m odate the Ausnahmezustand
(s(ale-of-exception) was fo r Schmitt one o f the most revealing
ispects o f its theoretical deficiencies and practical dangers.
I' ven in theoretical legal terms, the exceptional case, by delini-
iioM, could not be bound to a norm. But far m ore im portant fo r
S( 11 mitt was that in the real world, where law actually func-
lioiicd in the context o f political and social conflict, the Aus-
uahnu'zustand con n oted a condition in which domestic order was
SCI iously disrupted o r even one in which the survival o f the ex
isting political system was at stake. Since such conditions could
not he predicted, the necessary responses to them could not be
pic( isely prescribed according to predeterm ined norms or ex-
.1 1 I normative procedures. N either could the Ausnahmezustand,
III a practical sense, be accom m odated by the normative legal
1 ) 1 der; fo r norms required a norm al situation in which to func
tion. Since there is no norm which would be applicable to
ili.ios, the creation or restoration o f order and security re
in.lincd prerequisites fo r the existence and functioning o f any
legal system."
12 O n the Three Types o f J u ris tic T h o u g h t

In the early 1920s, SchmiU contrasted this normative legal the


ory with what he called decisionism, whose classical represen
tative he identified as Thom as Hobbes, a juristic thinker who
grasped the reality o f societal life . H obbes had rejected all at
tempts lo substitute an abstractly valid ord er fo r a concrete sov
ereignty o f the state. N either the Grundnorm nor its derivative
norms but rather the ultimate decision o f the sovereign pro
duces and guarantees the situation in its totality. In this regard,
SchmiU frequently invoked H obbess classic form ulation,
auctoritas, non verilas facil legem (authority, not truth, makes the
law). What matters fo r the reality o f legal life, Schmitt wrote,
is who decides. A ll laws, norms, or interpretations and appli
cations o f these are the creation o f the sovereign whose funda
mental decision first established order, peace, and security out
o f a pre-stately existence o f nothing and di.sorder. Right, justice,
and law are whatever this sovereign lawgiver decides; they are
only possible, in fact, after this sovereign authority has form ed
order out o f chaos. Likewise, it is the sovereign who will there
after decide when this normal order he has established has been
sufficiently disrupted o r endangered to constitute an Ausnahme
zustand and what measures are necessary to reestablish a normal
situation.*'
Schmitt contended that aspects o f Hobbesian decisionism
continued to exist even within m odern democratic constitu
tional systems. The very act o f creating a constitutional order was
a sovereign act o f decisionism on the part o f those (e.g., the p eo
ple in a democratic process) instituting that system. Th e original
decisi(jn-makers o r fundamental lawgivers would also designate,
usually through specific constitutional articles, who in a practical
sense will exercise slate sovereignty, especially within a crucial
Ausnahmezustand. In the W eim ar Republic, Schmitt argued, the
constitution had endowed the Reich president with sovereign
decisionist powers over an Ausnahmezustand, so lon g as his ac
tions were directed toward preservation o f the existing political
and legal order and had the consent o f the Reichstag.**
I iilim lu c lio n 13

By the early 1930s, Schmitt had developed serious concerns


iliat the prevailing value-netilral constitutional interprchitions
I )l normativist legal theorists were endangering the entire Weimar
political and legal system. By that point, the econom ic collapse
c.\uscd by the Great Depression, together with the paralysis o f
I lie Reichstag due to intransigent political parties representing
irreconcilable ideologies and class interests, had generated con-
(lilions under which the republican form o f governm ent was
disintegrating from within while the anticonstitutional Nazi and
Communist parties posed an ever-increasing overt revolution-
. 1 1 y threat from without. Schmitt was especially fearful that
xaluc-ncutral constiUitional interpretations were also allowing
I liilcr to manipulate the concept o f legality. Maintaining legal
Mcntrality toward a political m ovem ent whose ultimate objective
was the destruction o f that legal system was, to Schmitt, suicidal
.md absurd. A constitutional system, he argued strenuously in
Icgnlt und Legitimitt and elsewhere, could not maintain neu-
ii alily toward its own principles and very existence. N o matter
wlial legal norms and procedures the Nazis adhered to, their ul-
limatc objectives constituted an intolerable threat to the exist
ing (institutional order and therefore they must be denied the
legal access to power.""
Schmitt advocated a resolution o f this crisis through the Re-
II I I presidents exercise o f his constitutional authority, espc-
I i.illy that authority granted in an Ausnahmezustand under
\i licle 48. As the legally designated d efen d er o f the ccanstitu-
liiiii in Schmitts interpretation, the Reich president was obli-
i;.iicd not only to restore order and security, but also to prevent
.1 Nazi acquisition o f pcawcr by legal means or revolution."'^ Most
normativist legal theorists, however, adhered strictly to the con-
I cpi o f legal and p(ditical neutrality. They also rejected Schmitts
polilical solution o f em ploying the Reich presidents constitu-
al powers; they favored instead a legal approach in which the
Mipteme court would render the ultimate decision regarding the
lrj;,ilily or illegality o f a political party. Schmitts opponents
14 O n the Three Types o f J u ris tic T h o u g h t

decried his constitutional interpretations as situational Jurispru


dence that would relativize constitutional law by in leijeclin g
uncertainties and arbitrariness.**
W liile Schmitt had conceded the courts were the legal ar
biters in such cases, he rem ained convinced that legal decisions
alone, especially if the current sense oi neutrality continued to
pievail, would prove inadequate lo defen d the republic. Soon,
as he had predicted, the normative system (including die courts)
failed against both the Nazi legal acquisition o f power and their
destruction o f the constitutional system which had granted them
that opportunity.*"
Nevertheless, the gradual evolution o f Schmitts own views
over the past several years had already led him to recognize the
limits o f decisionist legal theory. In Verfassiingslehre (1928), his
classic study o f constitutional theory, and Freiheitsrechte und in-
stitutionelle Garantien der Reichsverfassung (1931), Schmitt started
to address institutional theory and take an interest in the preser
vation and special protection o f certain institutions o f state and
society such as marriage, property, civil service, and churches.*"
But it was the reality o f a Germany under control o f the Nazis,
pursuing the total transformation o f society, culture, and state
in accordance with their grandiose ideological visions o f a
T h ird Reich, that finally prom p ted Schmitt to turn to institu
tional thinking to rectify the deficiencies his critics had lo n g
poin ted out rega rd in g decisionism. It was on e thing to advo
cate sovereign decisionism within the W eim ar constitutional
fram ew ork or even to entrust Paul von H indenbu rg, a p oliti
cal figure o f prov'en responsibility deep ly devoted to G erm an
traditions and western civilization generally, with broad ex
ceptional powers in an Ausnahmezustand. It was quite another
when such dcci.sions would be made by the leader o f a dynamic,
revolutionary m ovem ent unrestrained by the v'alues, tradi
tions, and institutions that conservatives such as Schmitt cher-
islied.
Iiiltoduciion 15

SCHMITT AND THE THIRD REICH

Initially, it appeared highly unlikely that Schmitt would have


any association with Nazi legal institutions or theoretical devel
opments. Given his earlier ideas and recent political back
ground, even his professional future seem ed in doubt. H e had
displayed not the least sympathy, or even toleration, fo r the ide
ology or politics o f the Nazi movement, which he had hum or
ously referred to at one point as organized mass insanity.
None o f his Weimar works had proposed totalitarian dictator
ship or the revolutionary transformation o f society. His Weim ar
writings had all been directed at ensuring the stability o f the
( ierman state and W eim ar constitutional system. In stark con-
irast to the central im portance the Nazis attached to biological
racism and anti-Semitism, his political theory was not racial
and his writings and personal relationships were free o f anti-
Semitism. H e had very close and devoted Jewish friends, as.soci-
ales, and students. W hile Schmitt ranked am ong the most
liequently cited political and legal thinkers in Weimar, the
Nazis totally neglected his work; his ideas had contributed noth
ing to their ideology or movement. Indeed, as the political and
econom ic turmoil intensified in the early 1930s, Schmitl feared
increasing Nazi power. For this reason, he supported Chancel
lor Kurt von Schleicher, to whom Schmitt served as a constitu-
lional adviser, in his attempt to prevent a Nazi acquisition o f
power in January 1933, by instituting an Ausnahmezustand and
banning both the Nazi and the Communist parties. Schmitts
political and legal efforts to sustain the Schleicher alternative to
ilie Nazis has been reconfirm ed by crucial new archival docu
mentation recently discovered by Lutz Berthold. This is one o f
ihe most important evidentiary contributions to our under-
slanding o f Schmitts relationship lo the W eim ar Republic and
lo National Socialism to appear in decades. '
16 O n the Three Types o f J u ris tic T h o u g h t

Schmitts metamorphosis m 1933 from Nazi opponent to


collaborator cannot be explained by either ideological conver
sion or m ere opportunism. His involvements with Nazism took
place in stages, each o f which tied him closer to the regim e and
required m ore reprehensible compromises. O nly after the En
abling A ct o f March 24, 1933, had virtually destroyed Weimar
and, in effect, granted Hitler dictatorial power, did Schmitt begin
to reconcile liim self to the new regime. A t that point, H inden
burgs retention o f die presidency and control o f the Rmhswehr,
together with the num ber o f conservatives in H itlers cabinet,
created the illusion o f continued conservative influence. W hen
the Nazis displayed uncharacteristic tolerance by overlooking
Schmitts earlier opposition to acquire the cooperation o f such
a prestigiovrs name, Schmitt believed that he and his conserva
tive cohorts might direct the new regim e along m ore traditional
conservative lines.**
It was this early hope o f guiding constitutional developments
in the Th ird Reich toward a m ore conservetiv'e and less radical
course that first brcjught him into the service o f the Nazi state.
Although even at this stage he had maintained his distance from
the Nazi Parly, he soon succumbed to fear fo r his personal, fam
ily, and professional welfare wlien he witnessed the Nazi purge
o f the universities. Thus, on May 1, 1933, Schmitt jo in e d the
Nazi Party. For the next three years, Schmitt publicly supported
the H iller regim e under the double illusion that he might exert
some conservative influence in legal affairs and at the same time
rem ove suspicions about his past and his present loyalty.
In the beginning, not only were his illu-sions fed by a positive
Nazi response, but he was also greatly rewarded professionally
fo r his collaboration. Schmitt was appointed to the Prussian
State Gouncil in July 1933, in O ctober he received the presti
gious chair o f public law at the University o f Berlin, and the fol
lowing month he became director o f the University Teachers
Group o f ihc National Socialist League o f German Jurists. Honors
like these and subsequent ones, together with his new writings, led
h ilm d u c lio n 17

lo liis erroneous (but, nonetheless, enduring) reputation as


Kronjurist o f d\e Th ird Reich. In actuality, he would never be any-
iliing but a tem porary figurehead.
Yet, decades later Schmitt admitted that, at the time, he really
iliought he would be allowed to construct the legal fram ework
lor the new order and thereby restrain the m ore extremist ten
dencies emanating from party ideologues. By mid-1933, when
S( hmitt made this attempt, the future nature and direction o f a
National Socialist Germany was not yet entirely clear. Liberal
democracy and political freedom , o f course, were lost. Jews and
Icliists had been purged from the civil service and universities,
while communists and other active opponents had been incar-
(crated in newly constructed concentration camps or had fled
abroad. Th rough their policy o f Gleichschaltung, the Nazis had
.ilso usurped the power o f state governments, controlled the me
dia and general public information, crushed the labor unions,
.md outlawed all other political parties, ffowever, most traditional
.ispects and institutions o f German society, culture, and the state
had not been eliminated or Nazified as y e t The state bureati-
( racy, the churches, the legal system, econom ic enterprises, as
well as property and social relationships (e.g., the family), had to
I his point rem ained very much as before.
Far m ore important, H indenburg was still president. And
ilioiigh Schmitt him self conceded that by late summer 1933,
llin d cn b u rg reigned but did not rule, his im portance and
polential action should not be underestimated. As president,
I lindenburg legally controlled and personally retained the alle
giance o f the prestigious Reichswehr, a powerful institution still
beyond H itlers comm and. Furthermore, H indenburg was a
icscrvoir o f legitimacy, who, in the eyes o f many Germans also
SCIved as a symbolic, psychological, and perhaps legal-institutional
link to their traditional conservative past and to the rem aining
non-Nazi aspects o f Germ an society and culture.
During this first year o f the Third Reich, the most horrendous
Icalures o f Nazism were yet to surface. Despite the oppression
18 O n the Three Types o f J u r is lic T h o u g h t

and dictatorial means used during the Nazi consolidation o f


power, this new regim e had not subjected German society in gen
eral to widespread or constant violence. By winter 1933-1934,
even Hitler was disassociating him self m ore and m ore from the
radical goals, rhetoric, and activities o f the SA storm troopers
{Sturmahleilung) under Ernst Rohm who were agitating fo r
the total econom ic, social, and institutional transform ation o f
Germany.
Conservatives like Schmitt, as well as substantial portions o f
the German population, understood dearly that major acljust-
ments had to be made to National Socialist power, .symbols, lan
guage, policies, and expectations. But a significant degree o f
uncertainly rem ained about the nature and extent o f what would
be required. It was from this perspective, that Schmitt viewed his
summer appointment to the Prussian State Council as an oppor
tunity to develop that institution as a conservative counterweight
to abscrlute party control and societal penetration. Together with
his close friend and political ally, form er Prussian finance minis
ter,Johannes Popitz (who was later executed fo r his involvement
in the July 20, 1944, coup to overthrow H ille r), he began to en
visage his interpretation o f the councils structure and role as a
type o f m odel fo r the broad outlines o f a less radical political-
legal system fo r the Th ird Reich.
W ithout any direction from the Nazis, an overconfident, yet
obviously cautious Schmitt took the initiative to test his ideas in
lectures and articles in the summer and fall o f 1933. These cul
m inated in his Staat, Bewegung, Volk, published at the end o f tlie
year. Whereas the Prussian State Council had three main divi
sions: state secretaries, party members, and societal representa
tives (e.g., churches, economy, culture), his tripartite structural
scheme fo r the Th ird Reich included the state (essentially the
bureaucracy and arm y), the National Socialist German Workers
Party (N S D A P ), and the German people.
As a conservative, Schmitt not only listed the state first but
retained an essential role fo r it as the static political part
hilwdiiction 19

I al l ying out its traditional administrative or military functions


willioLit continual Nazi interference. In recognition o f Nazi
power and dom ination, he made political decisions and activ-
i(y (he prerogative o f the NSDAP, which he defin ed as the po-
lilit ally dynamic part. A n d he relegated the p eop le to the
.ipolitical sphere o f public life, except where plebiscites were
<oncerned. Although each com ponent in this tripartite system
would remain different, they would be united and led by the
pai'ty, which would penetrate both the state and society. As head
o f both state and party, the Fhrerwoid be the ultimate leader
wilhin this system, but not a dictator. For, Schmitt argued, im
plicit in the National Socialist concept o f Fiihrungwas a requisite
identity and equality between a Fhrer and his followers. These
identities, reinforced by continual contact, sustained mutual
II list, and occasional plebiscites, on the one side, and by the
Ilin den o f responsibility on the Fhrer, on the other, would sup
posedly prevent the abuse o f power, tyranny and caprice.

( )N THE THREE TYPES OF JURISTIC THOUGHT

It was in these personal, political, and intellectual contexts


ill.It in early 1934, Schmitt advanced his arguments on the his-
lorical and theoretical characteristics o f the various schools o f ju-
I is|)rudential thought. Schmitts interpretations in On the Three
Types of Juristic Thought, as well as the language he used in certain
places, reflected the time and circumstances. Yet, in content and
six'le, most o f this work was simply a treatise on legal theory sim-
il.ii to those he had always written. Only at the very end, did he
ically relate this work specifically to the em erging, though still
iiiK lear and undeveloped, National Socialist law and institutions.
I he three kinds o f legal thinking Schmitt identified were char-
.11 lerizcd by the manner in which each conceives o f the fotmda-
iion and essence o f law, in other words, whether law is viewed in
icrms o f concrete orders, decision, or norms. W liile every legal
20 O n the Three Types o f J u ris tic T h o u g h t

ih eory does contain elements o f all three types, the determ in


ing factor is which concept o f law is the fundamental one from
which all the others ai e derived and therefore which concept o f
law uses the others as instruments in its own actualization.
Goncrcte-ordcr or institutional thinking is not centered around
the individual, but rather is founded upon social groups, associ
ations, and institutions. It was most evident during the M iddle
Ages, with some residue still found with Luther and H egel. A c
tual life (i.e., the social reality) was organized according to nat
ural social groupings such as peasants, burghers, clergy', and
nobility. These were the Slande or concrete orders and institu
tions in which men lived and worked.*' T h e legal system re
flected the presuppositions o f that age and culture about right,
normalcy, values, and so on, as well as o f a life organized around
that societys institutions. O n e is ju d ged and held accountable,
therefore, not according to an abstract universal norm but ac
cording to the standards o f the partie ulai' concrete ord er to
which one belongs.
Ecpially important, the legal system is not perceived as a series
o f rules or regulations governing the relationship between indi
viduals in society. N or is the legal system created by or founded
upon such rules and regulations. O n the contrary, the rules and
regulations are derived from the already-existing social order.
Moreover, each concrete order could not be reduced m erely to
some legally defin ed contractual relationship. Eor exam ple, the
family could not be reduced to a series o f legal rules governing
the individual relationships between husband and wife, and
parents and children. Members o f a family, like soldiers in an
army or clergy in a church, constitute a natural organic unit.
Legal norms, rules, regulations, and decisions must grow out o f
the intrinsic way o f life within each concrete order and speak to its
values and needs. Thus, for concrete-order thinking, law must al
ways be conceived o f institutionally, but also broadly and flexibly,
so that law reflects the existing, yet always-evolving social reality.
hdmduction 21

The second type o f legal thinking Schmitt described as deci


sionism, which found its classic representation in the seventeenth
( cnlury with Thomas Hobbes. This kind o f thinking focuses nei-
ilicr upon norms nor concrete orders, but upon pure decision.
I listorically, Hobbesian decisionist legal theory corresponded to
I lie actual em ergence o f the Leviathan in the form o f the m od
ern state. And this political developm ent had twcv major reper
cussions fo r legal thinking. First, the om nipotent Hobbesian state
'devoured all existing concrete social orders. It sets aside or rel-
.ilivizes the traditional feudal legal, stdndisrhm and ecclesiastical
communities, hierarchical stratification and inherited rights. It
iliercby underm ined the very .social foundations o f concrete-
ordcr and institutional legal thinking. Secondly, by establishing
civil peace and security, this m odern state created the stability
1 ) 1 ihe eighteenth century necessary fo r the rise and success o f
normative legal thinking, the third type o f juristic thought in
S( 11 mitts analysis.
Normative legal thinking asserts that law, not m en, should
govern. Normativism transforms a legal norm into an absolute,
( laiming fo r itself the status o f superiority and eternal univer-
salily. As Schmitt wrote: It elevates itself above the individual
I ase and above the concrete situation and thus has, as n orm , a
<criain superiority and em inence above the m ere reality and
I.Kdial nature o f the concrete individual case, the changing sit-
ii.ilion and the changing will o f m en." It thus promises to
I each the cherished goal o f impersonal, objective justice.
But in the process o f developing law as a series o f objective
norms unaffected by social, econom ic, moral, or political con-
icxls, normativists detach law m ore and m ore from social reality.
I ,aw becomes abstract. Instead o f being broad and flexible, law
l)c(om es rigid, and is perceived as a rule or regulation emanat
ing ( rom impersonal, abstract norms. A nd a legal .system appears
Id he nothing but the sum o f all these rules and regulations.
I his trend in legal thinking toward greater abstract and im per
22 O n the Three Types o f J u ris tic T h o u g h t

sonal regulation through abstract norms reached its peak in the


legal positivism o f the nineteenth century.
T o Schmitt, nineteenth-century legal positivism was not an
original or distinct type o f legal thinking. It was, instead, a le-
galilarian hybrid o f decisionist and normativist legal thinking.
O n e important decisionist com ponent can be found in the sov
ereignty o f the om nipotent state which provided the stable and
secure political fram ework in which law could be viewed in such
a positive m anner o f legal certainly. In addition, legal posi
tivists viewed law solely as the will o f the lawgiver. That deci
sion by the lawgiver, in the form o f legislation, claims to be the
authoritative legal norm to which all else must be subjected.
In order to achieve and preserve legal certainty, purity, objec
tivity, and calculability, with legal positivism, one must adhere
strictly to tlie will o f the lawgiver in terms o f the literal contents or
wording o f the statute. Interpretations are taboo and judges
should be nothing but the mouthpiece o f the lawgiver. Likewise,
anything extra-legal (i.e., anything not created by human legal
statute) is rejected fo r fear o f tainting the norm or law with social
circumstances, interests, and subjectivity, fo r these would under
mine the claim to objectivity and purity. Thus, legal positivists
dismiss the interjection o f every nonlegal consideration as ideo
logical, econom ic, sociological, moralistic, or political. Thus,
Schmitt argued, Recht thinking becomes legality thinking ; and
an abstract legalitarianism prevails. In essence, the m ore legalistic
a system becomes, the m ore unrealistic it becomes.*
A nd despite the attempts by legal positivists to elim inate hu
man judgments, social circumstances, and interests, the need
fo r the interpretation, application, and defense o f laws remains.
As Schmitt responded elsewhere lo those who maintained a
purest normativist position on the rule o f law rather than the
rule o f men: O n e law cannot protect another law, only men
can be the interpreters and defenders o f the law.**
Toward the end o f his treatise, Schmitt finally related his
theoretical and historical survey specifically lo Nazi Germany.
Iiilio d u r/ im 23

Allributing widespread and significant changes in law to the


new National Socialist regim e and the spirit it engendered,
S( 11 mitt proclaim ed the dem ise o f the age o f positivism in G er
many and the em ergence o f concrete-order thinking as the
new form o f legal thought fo r the twentieth century. In spirit
.md practice, National Socialism was elim inating the artificial
normativist separation o f law from social reality, once again re
uniting law with econom ic, m oral, and political considerations.
And he em phasized that this was not m erely some adjustment
or corrective to previous legal thought and practice, as had
I )ccn the case with the Free-Law M ovem ent, but an entirely new
lorm o f legal thinking, though one which, in a certain sense,
s.tlvaged the original Germ anic concrete-order thinking o f ear
lier ages.
Schmitt saw an important sign o f such National Socialist suc-
<css in the increasing reliance upon general clauses (o r broad
legal principles and codes o f conduct) as opposed to specific
rules and the literal content and details o f laws. H e likewise no-
ii(e d similar trend.s in criminal, tax, constitutional, and admin-
isirative law over the previous year.
I lowever, the lim ited num ber o f examples Schmitt cited were
m eie indications o f new currents in law. H e was pointing out
(lie general direction that law was headed, though one o f great
( onsequcnce, rather than o fferin g a specific scheme o r struc-
lure o f his own. A t most, Schmitt briefly insinuated a return to
some type o f corporatist legal structure com posed o f various
Sldiide, along the lines o f the tripartite system he had proposed
III Slant, Bnuegung, Volk?'-^

( lO N C E PT S A N D L A N G U A G E : S C H M IT T S
( O N C E S S IO N S T O N A Z IS M

Schmitts adaptation o f his earlier theories to National Social


ism had its counterpart in his similar bastardization o f his
24 O n ihe Three Types o f J u ris tic T h o u g h t

concepts and language to reflect the spirit and rhetoric o f the


Nazi new order. It was in his gradually escalating use o f the cor
rupted form s o f his term inology generally and against those the
Nazis had targeted as Volksfeinde (enem ies o f the p e o p le ) that
Schmitt made some o f his most despicable com prom ises with
the Th ird Reich. As was already abundantly evident to those fa
m iliar with his earlier work and personal relationships (and as
would soon be discovered by his enem ies within the party),
Schmitt was obviously acting out o f fear and opportunism rather
than conviction or ideological conversion. Nazi id eology was
founded upon a type o f Darwinian biological racism, which the
conservative, Catholic, Schmitt had long ago ridiculed. Th e politi
cal and legal theory that had established Schmitts international
reputation contained no resonance o f racism or anti-Semitism.
Neither o f his wives, both Slavs, nor his daughter, met the Nazi
ideological racial criteria o f an Aryan.
Thus, Schmitt was not only a National Socialist office holder,
but also one with a potentially incrim inating anti-Nazi past who
now held ambitious aspirations to becom e a guiding fo rce in fu
ture legal developments. A nd his rhetoric, including the hom
age he now paid in laudatoi y remarks about Nazi leadei's from
Hans Frank to Hitler, played a substantial role in his em ergin g
image as the actual Kronjurist o f the Th ird Reich. Even today,
those who begin their study o f Schmitt by reading his W eim ar
publications are invariably shocked upon first encountering
some o f what he wrote during the Nazi era and especially the
vocabulary and tone through which he expressed Iiis argu
ments.
In addition lo highlighting the T m/ott concept, Schmitt began
fo r the first lim e to xise language which could im ply legal
thought had racial foundations. But even in this there was, ini
tially, still a suggestive ambiguity. Did his new term inology con
note nationality (based on culture, ethnicity, etc.) in the sense
many conservative intellectuals had conceived it, o r did it con
note race in the deterministic biological and genetic conception
Iiilto d u c iio n 25

ol I he Nazis? O ften his words could be read either way. Tradi-


lional cultural conservatives could see in Schmitts ideas an at-
icmpt to rejuvenate a distinctly German culture and nationality
whose identity and hom ogeneity had been dangerously diluted
wilhin m odern liberal bourgeois society or by foreign cultural
inlluences. Un-German ideas and forces, as well as the selfish in
dividualism Inherent in liberalism, which threatened the natu-
i.il organic unity and ord er o f G erm andom could now be
( oim teracted by the revival o f age-old G erm anic com m im itar-
i.m concepts. A t the same time, Nazis could perceive his ideas as
. 1 1 liculating a variant o f the National Socialist racial principle o f
BhU und Boden (b lo od and soil) as the basis o f a unique German
iialnre and identity.
Schmitt replaced words like association used in his Weim ar
uorks with terms such as Genossenschaft and, in places, he re
le red to Germans as Volksgenosse. These expressions reilccted
1 11 C newly dominant anti-individualist and antiliberal comm im i-
i.n ian Zeitgeist in Germany pervading both traditional conser-
\alive and Nazi thinking. W hile Genossenschafthad lon g denoted
.1 U pc o f cooperative society, or in German law a corporate as-
so( iation, and Volksgenosse, a fellow countryman or com rade,
Nazi usage had imbued such social relationships with a dis-
iiiu tly racial character. Whereas the concept o f hom ogeneity in
11 is original Weim ar political theory denoted commonalities
h.iscfl on class, religion, culture, or even constitutional consen
sus, it now had acquired an accent which could also be inter-
pi i'led racially."
Already in Staat, Bewegung, Volk, Schmitt had adopted the
icm i Arigleichheit, which, though generally m eaning o f identi-
I al type, intimated in Nazi Jargon a combination o f spiritual
.md biological similarities within a distinct species. Schmitt also
ilrcw distinctions between Artgleiches and Artfremdes, those o f
similar kind and aliens or foreigners. An Arlfremder, he wrote,
"iliinks and understands differently, because he is o f a d ifferen t
kind and remains . . . in the existential service o f his own kind.
26 O n the Three Types o f J u ris tic 'Th ough t

W liile Schmitts m eaning is still ambiguous, the Nazis used


these concepts with unecjuivocal clarity to distinguish racial kin
from those o f alien blood.
A l first, Schmitt was also equally vague and circumspect in
identifying these alien types, speaking only o f liberal and
Marxist enem ies. '* But his two b rie f references to specific
p eople and races in On the Three Types o f Juristic Thought con
tained a rather transparent insinuation about Jews:

th e re a re p e o p le w h o w ith o u t territory,

w ithout a state, w ith o u t a c h u rc h , exist o n ly


in la w ; to them n o rm ativ ist th o u g h t a p p e a rs

as the o n ly r e a s o n a b le le g a l th o u gh t. '*

A few months later, Schmitt became explicit in an article fo r


the Nazi legal journal Deutsches Recht, where he used the National
Socialist identification o f Jews as a Gaslvolk and atlrifjutcd the
further developm ent o f nineteenth-century normativist legal
thought to th em ;"

B e c a u se o f th eir p e c u lia r n a tu re , the Jew ish


p e o p le , w h o fo r th o u sa n d s o f years liv ed n o t

as a stale o r in a territory, b u t o n ly in law

a n d in iiorm.s, a r e in the truest sen se o f the

term e x is te n d a lly n o rm ativ istic. '''

Such expressions were not only a betrayal o f Schmitts form er


Jewish friends, students, and colleagues, but a contradiction o f
his earlier work. H e had, in fact, collaborated with Jewish friends
and sdiolars in the developm ent of his own political and legal
theory. They had shared his theoretical reservations about nor
mativism and positivism, and some were drawn to his decision
ism. H e liad great respect for the early work o f L eo Strauss
whom, on the eve ol' the Nazi seizure o f power, Schmitt assisted
in earning a R ockefeller Fellowship. Schmitt had actually revised
I iilro d u c tio n 27

I he 1932 edition o f his famous ConceJH o f the Political in light


ol criticism from Strauss. What had happened since the end
ol Weimar was quite evident to Strauss, who exclaim ed to a col
league: ffave you seen Carl Schmitts la st. . . [i.e., On the Three
Types o f Juristic Thought]'? H e is now against the decisionism o f
I lobbes and fo r thinking in terms o f o rd e r on the basis o f the
;irguments in my review, which, o f course, he does not cite.
After all, Strauss added later, Schmitt could not possibly allow
himself to acknowledge his dependence on a Jew. "
Furthermore, if interpreted racially, Schmitts On the Three
Types o f Juristic Thought suffered from internal inconsistencies.
While speaking o f the national (o r race-specific) origin and na-
Ilire o f certain kinds o f legal thought, Schmitt actually noted his
intellectual debt to the institutional thinking o f Maurice Haii-
liou, a Frenchman, and Santi Romano, an Italian, both o f
whom according to Nazi racial theory belon ged to different
nil es and therefore should also have exhibited a type o f legal
thought dissimilar to that o f the Germans."^ Although Schmitts
.ii giiments could have been accom m odated by certain kinds o f
I .icial theories o f the day, they were definitely not in line with
what Nazi racial ideologues would have dem anded. Perhaps
equally telling, even though he had m entioned the word race
once in On the Three Types o f Juristic Thought, it would still take
I wo m ore years before he began to address the question o f Nazi
i :i< ial principles and policies or to use notions like German
hlood in a few o f his articles. "
On the other hand, Schmitts general ideas on concrete or-
ilci s did resonate with .some o f those involved with National So-
<ialist legal theory and affairs such as Karl Larenz. Th e concepts
ilso apparently had some impact on the evolution o f criminal
l.iw during this p eriod .'" But their influence rem ained quite
limited. A n d certainly Schmitts vision o f concrete orders as the
loim dation o f an em ergin g National Socialist legal and political
order quickly proved illusionary. " Ernst R u d o lf Huber, later
oiic o f postwar Germ anys renowned constitutionalists, had at
28 O n the Three Types o f J u ris tic T h o u g h t

the time perceived die true National Socialist reception o f


Schmitts concrete-order concept. As H u ber privately expressed
it lo Schmitt in 1939, the e.ssence o f concrete-order thinking was
lost as the phrase rolled o f f the tongues o f so many who turned
a crucial insight into a banality."'
W hile Schmitt was introducing his concepts, ideological op
ponents within the Nazi Party and legal profession were launch
ing what proved to be a relentless campaign against him and his
ideas. For ideological purists like O tto Koellreutter, Schmitts
conversion lo National Socialism was sheer opportunism. To
him, Schmitt had never m oved away from his earlier neo-
H egelian conservatism, and despite his adoption o f Nazi term i
nology, his fundam ental theories were never actually racially
based. Thus, while Schmitt continued to advance in Nazi legal in
stitutions over the next year under the protection o f Hans Frank,
widespread resentment and opposition was building against
him.**
Starting in the fall o f 1934 and continuing fo r several years,
Schmitt was also subjected to incessant press attacks from abroad.
Several o f his fo rm er friends and students, now German m i
grs, were determ in ed to underm ine his position in Nazi G er
many by exposing in detail his past relationships with Jews, his
political Catholicism, and his anti-Nazi activities.** In response
to such internal and external assaults, Schmitt was equally
determ in ed to prove his conversion to National Socialism. H e
began to mouth m ore closely and frequ ently the Nazi rhetoric
on race a n djew s, d efe n d in g the N u rem b erg Laws as the ccrn-
stitution o f fre e d o m . His opportunistic com prom ises reached
their peak al the C on feren ce on Judaism in Jurisprudence,
wliich he sponsored in O ctob er 1936. A t the con feren ce, he
urged purging the Jewish spirit from Germ an law and ur
gently recom m en ded reading Mein Knm pf on the Jewish
question.*'
Very lew were convinced, and Schmitts National Socialist ca
reer came to an abrupt end by early 1937. Th e Sicherheitsdienst
I Iilro d u c tio n 29

(Security Service) o f the SS (Schutzstaffel), which had already


liad Schmitt under investigation fo r some time, publicly re-
1Hiked him in its publication Das Srhwarze Korps, preparing the
way fo r his removal from party offices. Schmitt was able to re
tain his professorship in Berlin, but he never again addres.sed
doiTiestic political or legal aspects o f the Th ird Reich.
W hile chastising Schmitt fo r his form er affiliations with Jews,
his anti-Nazi past, and the fact that his earlier theories were non-
I a( ial, the SS investigators privately considered On the Three Types
I'l Juristic Thought a primary p ro o f o f his continuing political
( ialholicism. Carl Schmitt com bined politics and Catholicism in
MU h a manner, they argued, that all spheres o f influence could
liccom c instruments o f the Catholic Churcli. A n d they strongly
suspected Schmitts new direction in legal thought was, in fact,
m effo rt to bring the National Socialist state under the political
pow'cr o f the Catholic Church. Schmitts phraseology', concrete
iiiders and institutions, merely di.sguised the fundamental
<Miholic precepts and interests supposedly still governing his
iliought. From their perspective, this work certainly could not
provide the theoretical fram ework or even stimulate the proper
II leas fo r the true Votksgemeinschafl within the Th ird Reich they
u< re trying to create.

IMF LEGACY

Shortly after the war, Frederick Dessauer wrote that Schmitt


II.KI supported the new rulers with all the weapons which a wide
niidition , an unusual analytical ability, a brilliant style, and an
I l.isiic conscience could supply. But despite this, Dessauer re-
.pc( (ed this Jurists contributions to legal theory and clearly im
plied Schmitts Weimar ideas had a great deal to offer. So when
I uiislitutional decisions have to be made in Europe, Dessauer
uioie in the journal Ethics, Carl Schmitts theory o f the constitu-
iKiii.il decision will not be forgotten. Dessauer was, however, far
30 O n the Three Types o f J u ris tic T h o u g h t

m ore critical regarding On the Three Types of Juristic Thought. H e


found it brilliant in its discussion ol drinking in abstract rules
and individual decisions. And, indeed, Schmitts incisive analy
ses o f decisionism, normativism, and legal positivism exposed
many o f the serious deficiencies in these types o f legal thinking.
Yet, Dessauer correctly pointed out that Schmitt's general contri
bution on concrete orders was superficial.'^
In retrospect, we see how prescient Dessauers observations
were. For the prelim inary sketch o f a Schmittian theory o f con
crete orders introduced in On the Three Types o f Juristic Thought
was never adequately developed thereafter. Schmitt identified
what concrete orders meant fo r the M iddle Ages and showed
the residue in Germ an legal thought thereafter; but his own
ideas on concrete orders were the least detailed and developed
parts o f this work. A nd after the war, these ideas never assumed
a central place in Schmitts prolific writings. A t best, there are a
few b rie f references in his Nomos der Erde (1950) and Verfass
ungsrechtliche Aufstze (1958), which fail to provide elaboration
or clarity." W e are left not only with a sense o f incompleteness,
but with a general vagueness, which Rthers noted in his cri
tique o f the concept." What is the equivalent in the contem po
rary w orld o f a concrete order or institution, and where is this
kind o f thinking expected to lead in terms o f theories or laws
and their application in a com plex, m odern mass society?
M ore important, though Dessauer conceded that thinking
in concrete form s o f life, in institutional patterns, provides
some insight into the conflict between abstract and general
rules . . . and the varieties and realities cxf life, he clearly un
derstood the potential dangers as w'ell. For if one draws the ul
timate conclusions from such premises, the individual rights
are destroyed."" A n d if such institutional thinking is the alter
native to normativism and legalitarianism, with their emphasis
upon individual rights and legal procedures, how will it ensure
equality before the law and the protection o f the individual
against the group? H ow will such a new system protect us
Iiiln id u c lio n 31

a g a i n s t a c a p r i c i o u s a n d a r b i t r a r y a p p l i c a t i o n o f t h e la w a n d e n -

siii e f a i r n e s s a n d d u e p r o c e s s ?

It is j u s t s u c h q u e s t i o n s t h a t h a v e g r e a t l y c o n c e r n e d c u r r e n t

( I ilic s w h o f e a r t h e i n s i d i o u s i n f l u x o f c o n c r e t e - o r d e r t h i n k i n g

a n d g e n e r a l c la u s e s i n t o l e g a l a n d s o c ia l t h e o r y as w e l l a s in t o

la w a n d p u b l i c p o lic y . W h e t h e r t h e i r a p p r e h e n s i o n a b o u t s u c h

s u b t le t r e n d s i n G e r m a n s o c ie t y a n d l a w is w e l l f o u n d e d is y e t to

he d e te r m in e d .

I n a n y e v e n t , t h e p l a c e o f O n th e T h re e Types o f J u r is tic T h o u g h t

III th e b r o a d e r c o n t e x t o f S c h m it t s o e u v r e w i ll n o t r e s t p r i m a r i ly

o n ih is o u t c o m e . F o r th is w o r k o f f e r s f a r m o r e t h a n a n i n t r o d u c -

lio n o f t h e c o n c e p t o f c o n c r e t e - o r d e r t h i n k i n g . I t c o n t a in s a m a

im a d ju s t m e n t t o th e d e c i s i o n i s m s o i n e x t r i c a b ly i d e n t i f i e d w it h

S( h m it t s n a m e a n d le g a l t h e o r y a n d w h i c h p e r v a d e d s o m u c h

o f h is m a j o r w r it in g . M o r e o v e r , it o f f e r s p e r h a p s S c h m it t s c l e a r -

< si a n d m o s t e l a b o r a t e c r i t i q u e o f n o r m a t i v i s m a n d p o s it iv is m .

11le s e r e a s o n s a l o n e m a k e it e s s e n t ia l r e a d i n g f o r a n y s t u d y o f

S( lim ilt .

NOTES

1. O n S ch m itts im p o rt a n c e f o r c u rre n t s c h o la d y dispu tes o v e r

m o d e rn is m a n d p o s t m o d e r n is m , see W illia m R asch, N ik la s L u h m a n n s


M ddcrnU y: T h e Parad oxes o f D iffe re n tia tio n (S t a n fo r d , 2 0 0 0 ).

2. E rn st F ra e n k e l, T h e D u a l Slate: A C o n tiib td io n to the Theory o f D ic -

lalorship (N e w Y o r k , 1 9 41 ), 61, 118, 131, 1 4 2 -1 4 6 , 196; F ra n z N e u m a n n ,

ltd ieiiioth : T h e S tru ctu re a n d P ra ctice o f N a tio n a l Socialism , 1 9 3 3 -1 9 4 4

I N e w Y o rk , 1 9 4 4 ), 440-4.58. S ee also J o s e p h W . B en d ersk y , G a rl


'>( 11 III in C o n fro n t s the E n g lis h -S p e a k in g W o r ld , C a n a d ia n J o u rn a l o f

I 'old ir a i a n d S o cia l Th eory/R evu e ca n ad ien rie de thore p o litiq u e et s o c ia le 2 ,


on. (F a ll/ A u t o m n c 1 9 7 8 ): 125-1.35.

>. F o r a rec en t discussion o f the Schm itt ren aissan ce, see the in tro-
d III lion in A n d r e a s K o e n e n , D e r F u ll C a rl Sch m itt: Sein A u fstieg zu m K ro n -

iK in le n des D ritte n Reiches (D a rm s ta d t, 1 995), 1 -2 4 , w h ic h also contain s


32 O n the Three Types o f J u ris tic T h o u g h t

an extensive, u p -to -d a te b ib lio g ra p h y . S ee also the lo n g essay re v ie w by

M a r k L ilia o n a b o u t a d o z e n n e w p u b lica tio n s: T h e E n e m y o f L ib e r a l

ism , N ew York Review o f Books, M a y 15, 1997, .38-44. In d icative o f the

w id e n in g attention to Sch m itt w as C a r l Schm itt: L e g a c y a n d P rospects:


A n In te rn a tio n a l C o n f e r e n c e h e ld in N e w Y o rk City in A p r il 1999,

.spo n sored by the Italian A cad em y , (C olu m b ia L a w S c h o o l, a n d C a r d o z o


S c h o o l o f Law . T h e p a p e r s a n d c o m m e n ta ry fr o m this c o n fe r e n c e w e r e
p u b lis h e d in the Cardozo L a iv R eview 2 1, nos. 5 - 6 (M a y 2 0 0 0 ). F o r an e x

a m p le o f an im p o rta n t c o n trib u tio n by a n e w c o m e r to the fie ld o f

Sch m itt studies, see W illia m R asch, C o n flic t as V o c atio n : C a rl Schm itt
a n d the Possibility o f Politics, in Theory, C u ltu re & Society: E x p lora tio n s in

C ritic a l S o cia l Science 17, n o . 6 (D e c e m b e r 2 0 0 0 ): 1 -32 .

4. S e e D a v id D y z e n h a u s s im r o d u c lio n lo the sp ec ia l ed itio n on

S ch m itt o f T h e C a n a d ia n J o u r n a l o f L a w & J u risp ru d en ce N , n o .l (J a n u

a ry 1 9 9 7 ); D y z e n h a u s , Lega lity a n d L e g itim a cy : C a r l Schm itt, H a n s Kelsen,

a n d H e r m a n n H e lle r in W eim a r ( N e w Y o rk , 1 9 9 7 ); a n d N o w the M a


c h in e R u n s I t s e l f : C a r l S ch m itt o n H o b b e s a n d K e ls e n , C ardozo L a w

Reinew. 16, n o . 1 (A u g u s t 1 9 9 4 ); 1 -1 9 ; P e t e r C. C a ld w e ll, P o p u la r Sover

eignty a n d the Crisis o f G erm a n C M n stitu tiorial L a w : T h e Theory & P ra ctice


o f W e im a r C oristitu lim icilisin (D u r h a m , 1 9 9 7 ), a n d L e g a l Positivism a n d

W e im a r D e m o c ra c y , T h e A m e riea n J o u r n a l o f J u risp ru d en ce 39 (1 9 9 4 ):

2 7 3 -3 0 1 ; J o h n P. M c C o r m ic k , C a r l Sch m itt's C ritiq u e o f L ib e ra lis m :

A g a in s t P o litic s as Technology (C a m b r id g e , M ass., 1 9 9 7 ). F o r a c ritiq u e o f

s o m e o f these tren d s, see J o s e p h W . B en d ersk y , Sch m itt a n d H e lle r ,


T E L O S : A Q iia rterly J o u r n a l o f C r itir a l T h o u g h t 113 (S u m m e r 1 9 9 8 ), a n d

the rev iew s o f the w o rk s o f D a v id D y z e n h a u s a n d W illia m E. S c h e u e r-

m a n in C e n tra l E u ro p e a n H is to ry 3 4 , n o . 1 (2 0 0 1 ); 1 1 6 -1 2 0 .

5. S ee C a r l S chm itt, T h e C oncept o f the P oliticcd , trans. G e o r g e

S c h w a b , 2 n d e d . (C h ic a g o , 1 9 9 6 ); P o litic a l Theology: H m r Chapters o n the


C oncept o f Sovereignty, trans. G e o r g e S c h w a b (C a m b r id g e , M ass., 1 9 8 8 );

Th e Crisis o f P a rlia m e n ta ry Dem ocracy, trans. E lle n K e n n e d y (C a m b r id g e ,

M ass., 1 9 8 5 ); R o m a n C a th olicism a n d P o litic a l F orm , trans. G . L . U lm e n

(W e s t p o r t , C o n n ., 1 9 9 6 ); T h e N om os o f the E a rth in the In te rn a tio n a l L a w


o f the f u s P u b lic u m F u rop a eu m , trans. G . L . U lm e n (N e w Y o rk , 2 0 0 3 );

Lega lity a n d Legitim acy , trans. J e ffr e y S eitzer (D u r h a m , N .C ., 2 0 0 4 ).


I iiliii< liirtio n 33

(). G e o r g e S ch w ab , T h e C ha llenge o f the E x ce p tio n : A n In tro d u c tio n to

Ihr P o litic a l Ideas o f C a r l S ch m itt between 1921 a n d 1936, 2 n d e d . ( N e w


Nnik, 1989), 1 L5 -1 2 5 .

7. Joseph H . Kaiser, K onkretes O rd n u n g sd en k en a n d Aussprache, in

( om plexio O p p ositoru m , ber C a rl S ch m itt: Vortrge u n d D iskussionsbeitrge


f/rs 28. S on d ersem ina r 1 9 8 6 d er H o ch sch u le f r Verwcdtungswissenschaften

Sty'irr (B e r lin , 1 9 8 8 ), 3 1 9 -3 4 0 .

8. B e r n d R th e rs, Entartetes R echt: Rechtslehren u n d K ro n ju ris te n im

Ih tile n Reich (M u n ic h , 1 9 8 8 ), a n d D ie unhegtenzte A u s le g u n g Z u m W a n -

d il der F riva treeh tso rd n u n g im N a tio n a ls o z ia lis m u s (F r a n k fu r t am M a in ,


I'l7 3 ). S ee also ray re v ie w in T h e A m e ric a n H is to r ic a l Riuriew, F e b r u a r y
I')')(), 1 9 6 -1 9 7 .

9. First p u b lis h e d in K ritisch e f u s t iz in 1969, this article a p p e a r e d re-

( ciilly in E n g lis h tran slatio n . S ee I n g e b o r g M a u s , T h e 1933 B r e a k in

I a l l S ch m itts T h e o r y , T h e C a n a d ia n Journcd o f L a w & J u rispru d en ce'S .,

no. I (J a n u a r y 1 9 9 7 ); 125-140.
10. S e e S p e c ia l Issue, C a rl Schm itt; E n e m y o r Foe? Telos: A Q iin r-

h dy p m r n a l o f C r itic a l T h o u g h t 72 (S u m m e r 1 9 8 7 ), a n d m o st issues o f
(he 1990s.

I 1. K o e n e n , D e r F a ll C a r l Schm itt, 4 4 9 -5 0 5 .

12. O n e o f the best d e sc rip tio n s o f le g a l positivism in G e r m a n y can

lie (o u n d in C a ld w e ll, C erm a n C o n s titu tio n a l I.aw . See also E lle n

K en nedy, C a rl S clim itts P a rla m en ta rism u s in Its H is to ric a l C o n te x t, in


( lis is o f P a riia m e n ta ry Dem ocracy, x x x v -x x x v i.

13. R u p e rt E m e r s o n , State a n d Sovereignty in M o d e rn C erm a ny ( N e w

I l.iven, 1928), 47, 56; C a ld w e ll, C erm a n C o n s titu tio n a l La w , 2 2 -3 9 .

I I. C a rl J. F r ie d ric h , T h e Philosophy o f L a w in H is to iic c d Perspective


( ( liic a g o , 1 9 6 3 ), 165, 173; W . F r ie d m a n , L e g a l Theory ( L o n d o n , 1 953),

150-151, 1 5 9 -1 6 1 .
15. S ee C a ld w e ll, C e rm a n C o n s titu tio n a l La w , passim .

16. H a n s K e lse n , D e r Soziologie u n d d er ju ris tis c h e Staatsbegriffe: K ritis -


I hc [ In tersu ch u n g des Verhltnisses v o n Staat u n d R echt (T b i n g e n , 1 9 2 2 ),

3, 7.5-81, 253; S c h w a b , Challenge, 4 7 -5 3 ; R u d o lf A . M e ta ll, H a n s

Kelsen: L eh ren u n d W erk (V ie n n a , 1 9 69 ); C a ld w e ll, C e rm a n C o n s titu tio n a l

I VW, 4 0 -5 1 .
34 O n Ihe Three Types o f J u ris tic T h o u g h t

17. S c h m iu , P o litic a l Theology, 1 6 -3 2 ; K e n n e d y , S ch m itts P a rla m e n t

a rism u s,'' x x x v i.
18. K m e rs o n , Stale a n d Sovereignty, 1 5 9 -1 6 7 , 2 0 7 -2 0 8 ; Ro.scoe P o u n d ,

J urispru den ce (St. P au l, M in n ., 1959), 1: 167; F rie d m a n , L e g a l Theory, 120,

245; C a ld w e ll, 4 2 -4 4 .

1 9 . Ib id .
20. C a rl Schm itt, V h er Sch u ld u n d Schuldat-ien: E in e term in ologisch e U n

ters u ch u n g (B r e s la u , 1910).
21. C a rl Schm itt, Gesetz u n d U rte il: E in e U n te rs u c h u n g zu m Problem der

liech tsp ra xis, 2 n d e d . (M u n ic h , 1969), 8, 22, 7 1 -7 3 , 1 0 1 -1 0 2 , 111-1 1 3 .


22. Schm itt, P o litic a l Theology, 3 4 -3 5 ; L e g a lit t u n d L e g itim it t (B e r lin ,

1 9 3 2 ), 49, 98. O n the c o m p e t in g s ch o o ls o f W e im a r le g a l th o u g h t a n d


th e ir in flu e n c e o n the p o lilic a l h isto ry o f the r e p u b lic , see C a ld w e ll,

G erm a n C o n s titu tio n a l La w .

23. Sclnnitt, P o litic a l Theology, 1 2 -1 4 .

24. Ib id ., 13, 33-,35.


25. Ib id ., 1 0 -1 2 ; C a r l S chm itt, D ie D ik ta tu r des R eichsprsidenten

n a ch A r tik e l 4 8 d er W eim a re r V e rfis s u n g ,'' in D ie D ik ta tu r: Von den A n f n

gen des inodem en Souvernittsgedanken his zu m proletarischen Kl/issenkam pf,

2 n d e d . (M u n ic h , 1 9 2 8 ), 2 1 4 -2 5 9 . S ch m itt h a d also p la c e d sp ecific

lim its o n su ch p o w e rs o f a p re s id e n t ac tin g, in S ch m itts term in o lo g y ,

as a c o n s litu iio n a l o r c o m m issa ria l dictator. A p r e s id e n t s e x c e p t io n a l


p o w e rs w e r e restricted to the d u r a t io n o f the crisis, d u r in g w h ic h he

c o u ld n o t c h a n g e ex is tin g laws o r a b o lis h the co n stitu tion al fo r m o f


g o v e rn m e n t, o r ev e n m a k e n e w laws. A n d the e n tire o r ig in a l co n stitu

tion al system m u st b e rein sta te d u p o n tlie e n d o f the t e m p o r a r y crisis.


On S ch m itts th e o ries of p re s id e n tia l pow er and his distin ction

b e t w e e n a s o v e re ig n a n d a c o m m issa ria l d icta to rsh ip , see J o s e p h W .

B en d ersk y , C a r l S ch m itt: Th eorist fm -th e R eich (P r in c e t o n , 1 9 83 ), 3 1 -3 5 ,


7 3 -8 4 .

26. Schm itt, L e g a lit t u n d L e g itim it t, 2 8 -6 0 ; B en d ersk y , C a rl Schm itt,

14.5-154.
27. C a r l Schm itt, D e r H t e r der V erfassung ( T b i n g e n , 1 9 3 1 ).

28. T h e s e d iff e r in g in terp retatio n s to o k o n p a rtic u la r le g a l a n d p o

litical sig n ific an c e w h e n Schm itt a n d o p p o n e n ts like G e r h a r d A n s c h u tz

a n d A r n o l d B re ch t p u b lic ly d a s h e d d u r i n g the historic trial b e f o r e the


Iiiln td u c iio n 35

t u -n n a n S u p r e m e C o u r t in O c t o b e r 1932. Schm itt, re p r e s e n t in g the


Reich g o v e rn m e n t, d e fe n d e d the righ t o f the R e ich p re s id e n t u n d e r

Al licle 48 to d e c la re a n A u sn a h m ezu sta n d in th e state o f P ru s s ia in o r-


ilei to re s to re o r d e r a n d security. T h e law yers f o r P russia, how ever,

I o n s id e r e d this a n u n c o n stitu tio n a l m a n e u v e r that w as m e re ly a m ask

I o r a p o litic al Staatsstreich ag ain st the state, a n d w h ic h , in effe ct, u n

d e r m in e d the e n tire d e m o c ra tic co n stitu tion al fr a m e w o r k o l W e im a r.

I he s u p re m e c o u rt r e n d e r e d a S o lo m o n ic d e c isio n a llo w in g the R e-


i( li g o v e r n m e n t to m ain ta in the A u sn a h m ezu sta n d b u t also re s t o r in g

d ie P ru ssia n state c a b in e t to of fice. Preussen co n tra R eich v o r dem Staats-


Irrich tsh o f: Stenogram m bericht der V erha nd lu ngen v o r dem S ta a tsgerichtshof

III L e ip z ig v o m 10. bis 14. u n d vom 17. O ktober 1 9 3 2 (B e r lin , 1 9 3 2 ); E a rl

R. Beck, T h e D ea th o f the P ru s s ia n R e p u b lic: A Study o f R e ic h -P rm s ia n R e


lations, 1 9 3 2 -1 9 3 4 (T a lla h a ss e e , 1 9 5 9 );J iir g e n Bay, D e r P reu ssen kon flikt

t > 1 2 -3 3 : E in K a p ita l a us d er Verfassungsge.schichte d er W eim arer R ep u b lik


( f r la n g e n - N u r e m b e r g , 1 9 6 7 ); B en d ersk y , C a rl Schm itt, 1 5 4 -1 7 1 ; D a v id

l)y / e n h au s, L e g a l T h e o r y in the C o lla p s e o f W e im a r ; C o n t e m p o r a r y


I.essons?, A tn e ric a n P o litic a l Science Reviexv 91, n o . 1 (M a r c h 1 9 97 );
121-134.

29. C a r l Schm itt, D a s Reich sgericht als H t e r d er Verfassung (1 9 2 9 ), in

( :,irl Schm itt, Verfassungsrechtliche A ufstze aus den J a h ren 1 9 2 4 -1 9 5 4 :


M a te ria le n zu e in e r Verfssungslehre (B e r lin , 1 9 5 8 ), 6.3-109; B en d ersk y ,

t 'jtr l Schm itt, 1 7 2 -1 9 1 .

30. C a rl S c h m iu , Vcrfnssim gslehre (B e r lin , 1 9 2 8 ), 1 7 0 -1 8 2 ;


" l rcrheitsrechte u n d irrs titu tio n elle Giarantierr der R eich sverfa ssu n g (1 9 3 1 ),

IM VerfassungsreehtlicheAufstze, 1 4 0-1 7 3 .

3 1. S ee Lixtz B e r t lio ld , C a rl S ch m itt u n d d er Stnatsnotstandsplan am


tirrde der W eim arer R ep u b lik (B e r lin , 1 999).

32. F o r details o f S ch m itts pre-1 9 3 3 attitud e to w a rd the N a tio n a l

S()( ialist m o v e m e n t a n d o f his ev e n tu al c o lla b o r a tio n , see: B end ersk y,


t :<rrl Schm itt, 1 7 2 -2 0 4 ; S c h w a b , Challenge, 9 0 -1 0 7 ; K o e n e n , D e r F a ll C a rl
S, hm itt, 1 7 3 -2 6 8 .

33. C a rl S ch m itl, Staat, B ew egung, Volk: D ie D re ig lie d e ru n g der p o litis -


ihetr E in h e it (H a m b u r g , 1 9 3 3 ), 1 1 -1 2 , 2 0 -2 1 , 40.

31. A S ta n d is the G e r m a n eq u iv a le n t o f a fe u d a l p o litic al estate. A

Stndestaat, o r system o f g o v e rn m e n t b ased o n these .Stnde, is so m e w h at


36 O l the T im e 'Types o f J u ris tic T h o u g h t

sim ila r lo the F r e n c h E sta le s -G e n c ra l b e f o r e 1789. F o r a n u n d e r s t a n d


in g o f the ac tu a l o rg a n iz a tio n a n d fu n c tio n o f d ie s e Stnde rs o p p o s e d

to ro m a n tic iz e d version s o f th em , see K lau s E p ste in , 'The Genesis o f G er

m a n C o n s e n a tis m (P r in c e t o n , 1 9 6 6 ), 2 5 9 -2 7 6 .

35. S ee this v o lu m e , p. 74.

36. S ee this v o lu m e , p. 49.


37. S ee this v o lu m e , p p . 6 3 -6 5 , 7 0 -7 1 .

38. C a rl Schm itt, D e r W ert des Staates u n d die B e d e u tu n g des E in z e ln e n

(T b i n g e n , 1 9 1 4 ), 83.
39. G e o r g e S c h w a b has o fl'e r e d s o m e in sigh t o n this q u e stio n . A c

c o r d in g to h im , Sch m itt b e lie v e d that le g a lly r e c o g n iz e d institutions

su c h as re lig io u s associations a n d the p ro fe s s io n a l civil service, o r inter

est g r o u p s o r g a n iz e d a lo n g p ro fe s s io n a l o r o c c u p a tio n a l lines, w o u ld


e n s u r e the co ntinu ity o f the societal o r d e r m o r e easily than a p o liiic a l

system. . . . E v ery institution h a d its o w n le g a l existen c e estab lish e d by

the in stitu tion alization o f p rac tic e in ligh t o f a c o n c e p t o f justice b a s e d

o n the in tera ction o f m e m b e r s in a giv e n o rd e r. T h e m o r e solidly an


o r d e r is e n tre n c h e d , the less likely it is that the s o v e re ig n au thority w ill

v e n tu re to in te rv e n e in n o r m a l tim es. P o litic a l Theology, x x v -x x v i; sec

also S c h w a b , C hallenge, 122-125.


40. B en d ersk y , C a r l Schm itt, 2 0 6 -2 0 8 .

41. In W e im a r, S ch m itt h a d a r g u e d that ev e ry ac tu a l d e m o c ra c y

rests o n the p r in c ip le that n o t o n ly a re e q u a ls e q u a l b u t u rie q u a ls will

n o t b e treate d eq u ally. D e m o c r a c y r e q u ire s , t h e re fo r e , first h o m o


geneity. . . . [ Ih e ] su b stan ce o f e q u a li t y . . . can b e fo u n d in certain

p h ysical a n d m o r a l q u a litie s, f o r e x a m p le in civic v irtu e , in mete, the

classical d e m o c ra c y ( j f vertus (v e r t u ). In the d e m o c ra c y o f E n g lish sects

d u r i n g the seven teen th centu ry, ecjuality w as b a s e d o n a c o n sen su s o f

re lig io n s co n v ic tio n s. S in ce the n in e te e n th c e n tu ry . . . in n a tio n a l h o

m o g e n e ity . C risis o f P a rlia m e n ta ry C overn m en t, x x x iii, x x x v ii, 8 -1 2 ,

1 4 -1 7 . C o m p a r e the 1932 ed itio n o f T h e C oncept o f the P o litic a l w \ h D e r

B e g riff des P olitisch en (H a m b u r g , 1 9 3 4 ), 27, 4 3 -4 4 .


42. Schm itt, Staat, B ew egung, Volk, 4 2 -4 6 .

43. S ee this v o lu m e , p. 45. M o r e recently, Schm itts attitudes toward

Jew s have ag a in b e e n c a lle d into question bec au se o f the re fe re n c e s to

Jews in his p o s t - W o r ld W a r II d iary entries. A lt h o u g h these have le d to


Iiilx x lu c t io n 37

ic iu 'w e d ch arge s that ScVimill was an anti-Sem ite, these notes a n d the

( iKiie rela tio n sh ip b e tw e e n h im a n d t h e j e w s h q u estio n have b e e n n ei-

ih< I sufficiently e x p la in e d n o r e x p lo r e d . F o r these referen ces, see C a rl


S( hmitt, G lossarium : A u fzeich n u n g en c k r Jahre 1 9 4 7 -1 9 5 J ed . E b e r h a r d

I I In. v o n M e d c m (B e rlin , 1 991). N o t a b le a m o n g the q u e stio n a b le inter-

ptciations that S clim itts le gal th in k in g h a d always b e e n anti-Sem itic is


Kiiphacl G ross, Cctrl Schm iU u n d die J u d en : E in e deutsche Rerhtslehre (F ra n k

lin I, 2 0 0 0 ). F o r a critiqu e o f G ross, see J o se p h W . B endersk y, C a rl

S( hmitt a n d the Jew ish Q u e s t io n : N e w E v id en c e, O l d C o n trad ic tio n s,


(ie n n a n Studies A ssociation C o n fe r e n c e (O c t o b e r 2 0 0 2 ), a n d C a rl

S( liinitts L e g a l T h e o r y a n d the Jew ish Q u e s t io n , S e m in a r o n the H is-

i( iry o f L e g a l a n d Political T h o u g h t, C o lu m b ia University, (M a r c h 1999).


14. T h e N a z i P arty P r o g r a m o f 1920 stated: O n ly m e m b e r s o f the

n a lion m ay b e citizens o f the State. O n ly th o se o f G e r m a n b lo o d , w hat-

(\cr th e ir c r e e d , m ay b e m e m b e r s o f the n a tio n . A c c o rd in g ly , n o j e w

II III) b e a m e m b e r o f the n a tio n . [ A n d ] n o n c itiz en s m ay live in G e r -

iiiany o n ly as gu ests a n d m u st b e su b ject to laws f o r a lie n s . J. N o a k e s ,


iiid G . P r id h a m , eds., N a zism , 1 9 1 9 -1 9 4 5 : A H is to ry in D ocu m en ts a n d

l.M'witness A cc o u n ts ( N e w Y o rk , 1 9 83 ), 1: 14.
1.5. H e r e , too, a sim ilar am bigtiity in m e a n in g existed in Sch m itts c h o

sen term Eigena rt, b e c a u se N a zi u sage im p lie d a p a rtic u la r racial ch ar-

,i( 1er. S ee C a rl Schmitt, Nationalsozialistisches R e ch tsden k en , Deutsches

ttccht: Z e n tra l-O ig a n des B undes N ationalsozialistischer D eidscher Juristen 4, nr.


10 (M a y 25, 1934): 226.

46. H e in r ic h M e ie r, C a r l Schm iU a n d L e o Strauss: T h e H id d e n D icdogue,


n a n s. J. H a r v e y L o m a x (C h ic a g o , 1 9 9 5 ), w h ic h co n tain s S trau sss arti-

I le o n S ch m itts C oncept o f the P o litic a l a n d the Stratiss letters fr o m


ivliich these q u o te s a re cited.

17. S ee this v o lu m e , p p . 57, 8 6 -8 9 .

18. C a rl Schm itt, D ie V e r fa s s u n g d e r F re ih e it, D eutsche J u risten -

/ c ilu n g 4 0 , H e f t 19 ( O c t o b e r 1, 1 9 3 5 ): 1 1 3 3 -1 1 3 5 ; D ie n a tio n a lso z ial-


isiische G esetzgebu n g tin d der V o r b e h a lt d es o r d r e p u b li c im

liile r n a t io n a le u P riv a tre ch t, Z e its r lm ft der A k a dem ie f r Deutsches R echt


3, I le ft 4 (F e b r u a r y 20, 1 9 3 6 ): 2 0 4 -2 0 5 ; a s h o rte r v ersion o f the latter

had b e e n d e liv e r e d as a p a p e r b e f o r e the In te rn a tio n a l L a w A ssocia-

lion in B e r lin o n N o v e m b e r 24, 1935.


38 O n the Three Types o f J u ris tic T h o u g h t

49. Riilhens, Entartetes Recht, 54, 66, 73; Neum ann, Behemoth,

4,53-4.58; O U o K irc h lie im e r, G rim in a l L a w in N a t io n a l Socialist G e r

m an y , Studies in P h ilosoph y a n d S o cia l Science 8 (1 9 3 9 / 4 0 ): 445.


50. T h e lim ite d in flu e n c e o f S ch m itts c o n c r e t e -o r d e r c o n c e p t o n

N a z i le g a l th e o ry o r p rac tic e is also s u g g e s te d in d ire c tly hy P e t e r C a ld

w ell. W h i l e a n a ly z in g S ch m itts Staat, B ew egung, Volk a n d c o n tro versia l

w ritin gs o n the Rechtsstaat in r e la tio n s h ip to le g a l d e v e lo p m e n ts in the


T h i r d R e ic h , C a ld w e ll c o m p le te ly ig n o r e s S ch m itts id e a s o n c o n c re te

o rd e r s d u r i n g these years. S e e N a tio n a l S oc ialism a n d C o n stitu tio n a l


I.aw : C a rl Schm itt, O t t o K o ellre u tter, a n d the D e h a te o v e r the N a t u r e

o f the N a zi S late, 1 9 3 3 -1 9 3 7 , Cardozo L a w Rexriew 16 (1 9 9 4 ): .399-427.

51. E rn st R u d o lf H u h e r to C a r l Schm itt, M a y 30, 1939, C a rl S c h m iU

N a c h la s s, R W 26.5-6269, H au p tslaatsarch iv , D s s e ld o r f.

52. O tto K o ellre u tter, D e r Deutsche F h rersta a t (T h in g e n , 1 9 3 4 ), 16;


Volk u n d S ta a t in d er W elta n sch a u u n g des N a tioria lsozia lisrriu s (B e r lin ,

1 9 3 5 ), 6 -1 9 ; Deutsches Verfassungsrecht: E in G ru n d riss (B e r lin , 1 9 35 ),

3 -4 , 26. B en d ersk y , C a r l Schm itt, 2 2 0 -2 2 3 . F o r a very d e ta ile d c o v e ra g e

o f this sam e su b ject, see K o e n e n , D e r F a ll C a r l Schm itt, 5 0 9 -6 5 0 .


53. P a u l M lle r (W a ld e m a r G u r i a n ), E n ts c h e id u n g u n d O r d n u n g :

Zu den S c h rifte n von C a rl S ch m itt, Schweizerische R u n d s ch a u 34

(1 9 3 4 / 1 9 3 5 ): 5 6 6 -5 7 6 ; H e in z H u r t e n , ed ., Deutsche Briefe: E in B la tt der

katholischen E m ig ra tio n (M a in z , 1969).


54. C a rl Schm itt, D ie V e r fa s s u n g d e r Freih eit, Deutsche fu ris te n -

Z e itu n g 4 0 , H e ft 19 (O c t o b e r 1, 1935): 1133-11.35; D ie deutsche Rechtswis

senschaft im K a m p f gegen den f d is ch e n Geist: Schlusswort a u f d er T a g u n g


der R eich sgrup p e H o ch s ch u lle h re r des N S R B vorn 3. u n d 4. O ktober 1 9 3 6 ,"
D eutsche J u ris te n -Z e itu n g 4 1 , H e ft 20 (O c t o b e r 15, 1 936): 119.3-1199.

55. T h e best p r im a r y s o u rc e f o r the investigations o f S ch m itt a re the

exten sive files c o lle c t e d o n h im by the SS c o n t a in e d in Sicherheitsdienst

des R F S S S D H a u p ta m t (1 9 3 6 ), P A 6 5 1C , Schm itt, w h o s e o rig in a ls h a ve


b e e n re lo c a te d fr o m L o n d o n to the W i e n e r L ib ra ry , T el Aviv. O n the

S ic h c rh e ilsd ie n st c a m p a ig n ag ain st S ch m itt a n d o n his life a n d w o rk in


the T h ir d R e ic h th e re afte r, .see B en d ersk y , C a r l Schm itt, 2 3 0 -2 6 4 .

56. D e r S taatsrech lsleh re i P r o f. Dr. C a rl S ch m itt, M itte ilu n g e n Z u r

W eltan sch a ulich en L a g e 3 n o . 1 (J a n u a r y 8, 1 9 37 ), Sicherheitsdienst,

2 7 2 -2 7 5 .
I iih ix lu r tio n 39

57. F r e d e r ic k F . D essau er, T h e C o n s d t u tio n a l D e c is io n : A G e r m a n


I h c o ry o f C o n stitu tio n a l L a w a n d P o litics, E T H I C S : A n In te r n a tio n a l

In iirn a l o f Social, P o litic a l, a n d L e g a l P h ilosoph y 5 3 , n o . 1 ( O c t o b e r 1 9 4 6 ):

I 1 .37.

5(S. C a rl Schm itt, D e r N o m o s d er E rd e im Vlkerrecht des J u s P u b lic u m Fa i -

lopaeum (C o l o g n e , 1 9 5 0 ), 175, 2 1 6 -2 1 7 ; Verfassungsrechtliche Aufstze,


172-173.

59. R th e rs, E ntartetes Recht, 7 0 -7 6 . F o r a u s e fu l, th o u g h b r ie f, re-

I rill attem p t to in te rp re t c o n c re te o rd e r s a n d in stitu tion al t h in k in g in


S( liin itls w o rk , see G . L . U lm e n , P o litis c h e r M e h rw e rt: E in e S tu d ie ber

M a x W e b e ru n d C a rl S ch m itt (W e in h e im , 1 9 9 1 ), 430-4.37.

60. D e ssau e r, C o n s titu tio n a l D e c is io n , 18.


On the Three Types o f
Juristic Thought
I Distinctions among
Juristic Ways o f Thinking

I jvery jurist who consciously or unconsciously bases his work on


I lie concept o f Recht, conceives o f this Recht either as a rule or as
.1 decision, or as a concrete ord er and form ation (Gestaltung) f It
IS in this way that we determ ine the three kinds o f jurispruden-
ii.il thought that will be distinguished in this work.
I'.very jurisprudential thought works with rules, as well as with
<lc( isions, and with orders and formations. But only one o f these
1 , 1 1 1 be the ultimate jurisprudentially ibrm ed notion from which
.ill the others are always juristically derived: cither norm (in the
sense o f rule and statute), or decision, or concrete order. Even in
every natural or rational law both o f which are nothing m ore
I IMil jurisprudential thought further developed to its logical
1 1 inclusion one will find the ultimate notion o f Recht as either
norm or decision or order. This is what determines the various
kinds o f natural or rational law. The Aristotelian-Thomistic natu-
1 .il law o f the M iddle Ages, fo r example, isjurisprudentially order
iliinking; the rational law o f the seventeenth and eighteenth cen-
iiii ies, in contrast, is part abstract normativism, part deci.sionism.
I he three kinds o f thinking rule and statutes, decision, and
loncrete order and form ation arc distinguished according to
(he various ranks each confers on the three specific concepts in
|iiiistic thought and according to the order o f succession in
vvliieh one is deduced from the other or traced back to the other.
44 O n the Three Types o f J u ris tic T h o u g h t

W lien the types and ways o f thinking are advanced fo r a


certain field o f knowledge, other distinctions arc usually dis
covered linking or intersecting several, mostly broader and
general, though often narrower, adjacent fields o f knowledge.
Philosophical or characterological classifications also function
in jurisprudence. M oreover, am ong jurists one could estab
lish, fo r exam ple, the differen ce between Platonists and Aris
totelians, Ontologists, Idealists, Realists, Nominalists, and am ong
discursive and intuitive intellectual positions. Likewise, the gen
eral differences am ong human dispositions (habitus) are as ob
servable within jurisprudence as within any field o f knowledge,
ffe r e there are also phlegm atic and sanguine types, m ore dy
namic and m ore static-oriented natures, voluntarists and intel-
lectualists, and so on. Legal-historical states o f maturation and
ages are also identifiable; thus, fo r exam ple, Savigny" differenti
ated betw een ages o f childhood, youth, m anhood, and o ld age
in o rd e r to explain the need fo r codification as a sign o f an
en din g age o f youth and xvliy the still-youthful Germ an p eople
should reject codification o f a civil code. It would be a further
question in itself w hether one could associate Jurisprudential
thinking on the whole, or in a particular way in certain areas
and specializations, with specilic m odes o f thought or kinds
o f men. W hether, fo r exam ple, as I suspect, genu ine juristic
thought, at least in public law, is conceptually realistic, w hile a
consistent nom inalism endangers o r destroys g o o d jurispru
dence and at best could have a certain latitude in civil traffic
law.
Th e theme o f this treatise, however, involves another problem.
Namely, that the various theoretical, practical, and intellectually
prom inent kinds o f jurisprudential thought must here be identi
fied and differentiated not from outside, but rather from the in
trinsic nature o f the Jurisprudential wcjrk. That is the way o f
concrete observation, which perhaps will yield results sooner
than general m ethodological or epistemological inquiries about
pure logical possibilities or pure form al terms o f ajurisprudence.
I )is//nclions a m o n g J u ris tic Ways o f T h in k in g 45

1 1 1 so far as such general inquiries advance overall toward a con-


I u'le jurisprudential object and do not remain completely empty
.1 1 1 ( 1 superfluous, they could fo r the most part be explained only
.!(co rd in g to the differences among the three types o f jtirispru-
(Icnlial thought. Formalistic absolutes and suppvjsedly pure cate
gories in jurisprudence are based merely on the unqualified
scll'-as.sertion o f a specific type o f jurisprudential thought, which
(>ne only needs to identify as such in order to detect and correctly
( lassify the logic o f its m ethodological train o f thought.
It is o f great im port which kind o f jurisprudential thought
prevails in a specific age and am ong a specihc people. Various
peoples and races are associated with various types o f thought,
.1 1 1 ( 1 an intellectual, and therefore political, dom ination over a
people can be linked with the predom inance o f a specific type
(il thought. Th ere are peoples that, without territory, without a
stale, and without a church, exist only in law. To them, nor-
iiiativisl thought is the only reasonable legal thought, and every
(ither type o f thought appears inconceivable, mystical, fantastic,
(Il ridiculous. T h e Germ anic thinking o f the M iddle Ages, in
(ontrasl, was through-and-through concrete-order thinking;
liowevcr, the reception o f Roman law in Germany since the fif
teenth century had displaced this kind o f thought am ong G er
man jurists and advanced an abstract normativism.* In the
nineteenth century, a second, no less consequential reception,
that o f a liberal constitutional normativism, had diverted G er
man constitutional thought from the concrete reality o f intrin-
si( German problem s and twisted it into the normative thinking
(il the Rechtsstaatf
11 is inherent in the nature o f the thing, that the reception o f
loi eign legal systems have such consequences. Every form o f
political life stands in direct, mutual relationship with the spe-
I i(ic m (jde o f thought and argumentation o f legal life. T h e
sense o f justice, legal practice, and legal theory o f a feudal com-
immity, fo r exam ple, differs from the societal legal thinking o f
,1 bourgeois legal system o f exchange in m ore than methods
46 O n the Three Types o f J u ris tic T h o u g h t

and the content ol the individual juristic line o f argument. For


a jurisprudential distinction timong the various kinds o f Juristic
th(night, it is o f far greater and deeper significance that the dis
tinction expresses itself in the presumed and underlying notions
o f an entire order. O n e can detect such distinctions in its notions
o f what is a normal situation, who is a normal person, and what in
legal life and legal thought are presumed to be typical concrete
examples o f the life to be Justly judged. Without persistent, un
avoidable, and indispensable concrete suppositions there is nei
ther jurisprudential theory nor jurisprudential practice. These
legal suppositions, however, develop directly out o f the concrete
assumptions o f a presumed normal condition and o f a presumed
normal type o f man. They differ, therefore, according to eras
and nations as well as to the kinds o f jurisprudential thought.
1 Rule and Statute Thinking
(Normativism) and Concrete-Order
Thinking

I proceed from die fact that it is a matter o f im portance fo r dif-


Icrentiating the kinds o f jurisprudential thought whether Recht
is conceived as rule, decision, or order. It is almost .self-evident
iliat each o f the specific three types o f juristic thought equates
die notion specific to its type either norm, decision, or con-
>rete order with the concept o f Rechl and denies other types
die claim o f a strictly legal m ode o f thought. W e would do
well, therefore, not to proceed from antitheses such as Recht
,111(1 decision, o r Recht and statute, or Recht and order, because
wilhin such antitheses hides a whole world o f previously de-
<idcd positions. For the same rea.son, it would also be m ore pru
dent not to speak im m ediately o f legal norms, legal decisions,
or legal orders, because not the antithesis o f Rechl and norm,
decision or order stands in question, but rather the difference
helween normative, decisionist, and order thinking do, and
e.ich o f these three concepts claims Recht fo r itself. Fach o f
iliesc maintains that it constitutes the true sense and core o f
Recht', each attempts to becom e universal and to determ ine ju-
I islically both other concepts from its own perspective.
When we, fo r exam ple, have becom e accustomed to speak o f
.1 Rechts-order" without clarifying the relationship between
Rcchl and order, then we are only dealing with one o f the many
imbiguous compcmnd xvords that were typically comm on and
48 O n the Three Types o f J u ris tic T h o u g h t

popular in the niueteenth century. Th ere are vigorous concep


tual combinations which com bine two real, equally substantive
entities, like North Germany, Latin Am erica, and so on. Thus, a
w ord combination like National Socialism is necessary, be
cause it puts an end to the tearing apart and antagonistic play
ing o f f o f nationalism against the socialistic and in turn
socialism against the national. Th ere are, however, also superfi
cial word combinations through which, instead o f a com pre
hensive unity, is produced only a generalizing give and take or
an amateurish not only, but also. Th e com pound w ord and
concept Rechts-oi'deT' no longer belongs today am ong suitable
w ord associations, because it can be used to conceal the distinc
tion that persists between rule and order thinking. Namely, i f
the word Recht in Rechts-ovdeT' is thought o f as abstract norm,
rule, or statute and every normativist-thinking jurist conceives
o f it naturally in this sense then from this normativist notion
o f Recht every order is transformed into a m ere aggregate or a
m ere sum o f rules and statutes. Th en there are the well-known
textbook definitions which, under the predom inance o f norma-
tivisl thought, reduce every concrete order to rules o f law and
define all Recht and every order as the epitom e o f legal rules
or the like. Th e com pound word /ii-cAb-order would also per
mit logically and linguistically the po.ssibility o f conceiving Recht
from the perspective o f concrete order rather than o f legal-
rules. Then an independent concept o f ord er determ ines the
concept o f Recht and thereby overcom es the normativist seizure
o f the concept o f Recht and the transformation o f Rechts-ocdcr
into pure legal-rules.
For concrete-ordcr thinking, ord er is also juristically not pri
marily rule or a summation o f rules, but conversely, rule is
only a com ponent and a medium o f order. Norm or rule think
ing is accordingly a m ore limited and indeed a m ore derivative
part oi the whole and com plete jurisprudential purpose and ap-
plicaticjn. Th e norm or rule does not create the order; on the
contrary, only on the basis and in the fram ework o f a given order
l>i\lh icotis a m o iig J u ristic Ways o f T h in k in g 49

1 1<)cs it have a certain regulating function with a relatively small


(Icgree o f validity, independent o f the facts o f the case. A ccord
ing to pure normativist method, it is, on the other hand, charac-
Ieristic that it isolates and absolutizes the norm or rule (in
( oiurast to decision or concrete order). Every rule, every legal
norming, regulates many cases. It elevates itself above the indi-
\idual case and above the concrete situation and thus has, as
"norm, a certain superiority and em inence above the m ere real-
iiy and factual nature o f the concrete individual case, the chang
ing situation, and the changing will o f men.
fh e argument that endows the normativist with his superior-
iiy and makes him into an eternal type in legal history is
lounded upon this em inence. Normativist thinking can appeal
lo being im personal and objective, whereas a decision is al
ways personal and concrete orders are suprapersonal. Th e nor
mativist, thus, claims im personal, objective justice against the
personal choices o f the decisionist and the feudal, s t n d is c h e n , or
iillier pluralisms o f the orders. In all ages, it has been dem anded
I hat law and not men shoidd rule. Thus, the normativist gen
erally expresses one o f the most beautiful and oldest coinages
ol human legal thought, the saying o f Pindar from N om os

h a siteu s, from N om os as K in g. Normativistically: O nly law,


not the necessities o f the momentary, continually changing sit-
iialion o r even the choices o f m en, should be allowed to ru le
or com m and. In countless historical situations and many
\;iriations, this saying fro m N o m o s b a s ite u s , o f law as king, o f
die Texas, the only R ex, has proven quite efficacious. Always in
;i renewed form , it has been repeated that only law and
not men should be allowed to govern. In the influential two-
lliousand-year stoic tradition it had further effectiveness through
die definition o f Chrysipp, that law is king, overseer, rider,
and master over m orality and immorality, right and wrong,
likew ise, the often-repeated antithesis o f r a t io and v o t u n la s ,

v e rita s and a u c t o r iia s , supports the normativist dem and fo r the


rule o f law as opposed to the rule o f men. T h e fathers o f the
50 O n the Three Types o f J u ris tic T h o u g h t

Am erican ConsliLution o f 1787 stood firm ly in this tiadition


when they took llie trouble to ensure that the Constitution
and public life o f the U nited States w ould have a government
o f law, not o f men. Every representative o f the Rechtsstaat
speaks this language and turns the Rechtsstaat into a Geselzestaat
(law giving state)
But Nomos, like law, does not mean statute, rule, or norm ,
but rather Recht, which is norm, as well as decision and, above
all, order. Concepts like king, master, overseer, or governor, as
well as judge and court, shift us im m ediately into concrete insti
tutional orders that are no longer m ere rules.' Recht as master,
the Nomos basiteus, cannot be merely any arbitrary positive norm,
rule, or legal stipulation; Nomos, which a legitimate king is sup
posed to embody, must have in itself certain o f the highest, un
alterable, but also concrete qualities o f an order. O n e would not
say that a m ere m ethod o f operation o r a schedule is king. I f
pure normativist thinking wants to remain internally consistent
with itself, it must always base itself on norms and the validity o f
norms, never on concrete power and office. For the pure nor
mativist, who continually refers back to norm as the juristic
foundation o f his thought, king, leader, ju d ge, and state be
com e purely normative functions. Th e higher rank in the hier
archy o f these authorities is m erely som ething that emanates
from the higher norm , until hnally the highest or utmost norm ,
the law o f laws, the norm o f norms, in the purest and most in
tensive m anner becom es nothing but norm or statute.* In con-
creto nothing other is achieved except that norm or statute is
played o f f against king or leader in a political-polem ical man
ner; through this rule o f law (Gesetz), law destroys the con
crete kingly or leadership order (Fiihrerordnung); the master o f
Lex subdues Rex.
That is also, in most cases, the concrete political objective o f
this kind o f normativist playing o f f o f Lex against Lex." O n e can
speak o f a true Nomos as true king only if Nomos means precisely
the concept o f Recht encompassing a concrete ord er and
D is tin ctio n s a m o n g J u ris tic Ways o f T h in k in g 51

(' crn e in s c h a ft. Just as in the w ord and concept com bination
hVcte-order both distinctive concepts mutually determ ine
R echt a n d order, so too is N o m o s m the juxtaposition N o m o s - k i n g "
already thought oi as a concrete order o f life and community in
so far as the word king is supposed to have a m eaning here at
all. Likewise, king is a legalistic concept o f order, which must
he brought into conform ity { g le ic h g e a r ie t) with N om os, i f the n o
lion o f N o m o s -\ d n g " is supposed to be m ore than a superficial
word combination and denote a genuine classification. Just as
N em os is king, so is king N om os, and we thereby find ourselves
already again in concrete decisions and institutions instead o f
abstract norms and general rules. Even if one endeavors to des
ignate a ju d ge as a pure organ o f the pure norm, who is only de
pendent upon the norm and only subject to the law, and in this
manner perm it only the norm to govern, one still proceeds
along orders and a hierarchical sequence o f authorities and sub
jects oneself not to a pure norm but to a concrete order.
For a law cannot apply, administer, or en force itself. It can
neither interpret, nor define, nor sanction itself; it cannot
wilhout ceasing to be a norm even designate or appoint the
Ioncrcte men who are supposed to interpret and administer it.
Fvcn the independent ju d ge, subject only to the law, is not a
normativistic but rather an order concept, indicating a compe-
k-nt authority and m em ber o f an order system o f officials and
authorities. That this very concrete person is the duly appointed
judge, results not from rules and norms, but from a concrete ju
dicial organization and concrete personal appointments and
nominations. Thus, it remains forever correct, what H ld erlin '"
said in a note to his translation o f the aforem entioned passage
from Pindars N o m o s b c is ile u y N Nom os, the law, is here disci
pline { Z u c h t), in so far as it is the form within which man en
counters him self and God. It is the church and the law o f the
land and inherited rules that, m ore firmly than art, em body the
living relations within which a people encounters others and
ilsclf in tim e.
52 O n the Three Types o f J u ris tic T h o u g h t

Every juris prudential consideration o f com pound words such


as liechts-order, statute-rule, norms-value, allows two dif fer
ent jurisprudential types o f thought to com e to light: the ab
stract rules or norm type and concrete-order type. For the jurist
o f the first type, who Hnds law in predeterm ined, general rules
and statutes, which arc independent o f the concrete state o f af
fairs, every manifestation o f legal life every comm and, every
measure, every contract, every decision turns into a norm.
Every concrete ord er and community disintegrates into a series
o f effective norms, who.se unity or system is, in turn, only
normative. O rd er fo r him essentially consists o f the fact that a
concrete situation corresponds to general norms by which it is
measured. This correspondence is certainly a difficu lt and
often-debated logical problem , because normative thought, the
m ore it becomes purely normativistic, leads to an increasingly
sharper separation o f norm and reality, ought and is, rule and
concrete slate-of-affairs. A ll valid norms, so lon g as they are
valid, arc naturally always in o rd e r ; the disorder o f the con
crete situation, in contrast, does not interest the normativist
who is only interested in the norm. View ed in this way, the con
crete statc-of-affairs can never in a normativist sense, be disor
der as opposed to order.
Norrnatively, the .set legal norm is confirm ed by sentencing
the m urderer to death through application cvf the valid penal
statute; the crim e, however, is not disorder, but rather m ere ev
idence. As such, according to juristic-normativist logic, it is in
the very same m anner evidence as when in tax law a tax claim
o f the state, or in civil law a private legal claim, is resolved
through submission o f legal evidence. T h e punishment is an
infrin gem ent on the freed o m o f the criminal, just as the tax is
an infringem ent on property and military sei'vice even on the
right to o n e s own life. A ll o f these infringem ents are indis
criminately either lawful o r unlawful. Norrnatively, nothing else
can be asserted about them. Every law is reduced to the norm,
which is separated from the circumstances; the rest is m ere
IhsH n ction s a m o n g J u r is tic Ways o f T h in k in g 53

f a d and the opportunity fo r factual confirm ation o f the law.


flie crime, laying the foundation fo r the charges brought by the
slate, which are normativistically reduced to the application o f
.1 norm in accordance with the factual presuppositions, is no
more order or disorder than is the engagem ent o f a daughter,
which lays the foundation fo r a claim to a dowry. Th e criminal
does not break the peace or order; he does not even break the
general norm as rule; juristically considered, he actually
hi caks nothing at all. Only the concrete peace or a concrete or
der can be broken; only with this in m ind can the concept o f
( rime be salvaged. Th e abstract norm and rule, in contrast, con-
liim e to operate unchanged, as is well known, despite the
' ( I im e : it hovers above every concrete situation and every con-
<retc action; it is not annulled through a so-called violation o f a
norm or unlawful behavior. Norm ativity and facticity are com
pletely different planes : the ought lies outside o f the is and, ac-
(o rd in g to normativist thought, retains its own inviolable
splicre, while in concrete reality, all distinctions between right
md wrong, order and disorder, normatively seen, are trans-
lorm ed into the material basis fo r the application o f norms.
I he matter-of-factness and objectivity o f pure normativism
lc;tds here to an order-destroying and order-dissolving juristic
.ihsurdity.
It is, o f course, possible to im agine the calculable functioning
o f human traffic relation.ships as a m ere function o f predeter
mined, calculable, general rules. Th e smooth running, stan-
ihirdized, and orderly process o f such traffic then appears as
order. Th ere is an area and a sphere o f human life in which
siuh a fixed-functionalistic ord er concept is m eaningful. In
die fram ew ork o f scheduled railroad traffic, fo r exam ple, one
( :m say that here not the personal choices o f men, but the im
personal matter-of-factncss o f the timetable rules, and that
Ihis scheduled regularity is order. Th e well-regulated traffic
on Ihe highways o f a m odern m etropolis offers the best picture
o f this kind o f order. H ere, too, the last vestiges o f human
54 O n the Three Types o f J im s tic T h o u g h t
(
rule and choice, as represented by the traffic policem an, ap
pear to be replaced by precisely functioning', automatic traffic
lights. A sphere o f life whose interest is focused solely on the cal
culability o f a sure regulation, such as an individualistic, bour
geois, com m ercial society, could perhaps still be linked lo such
an ord er concept.
I'here are, however, other spheres o f human existence fo r
which the transference o f this kind o f functional regularity
would destroy the specific legal nature o f the concrete order.
These are all areas o f life which have n ot been fo rm ed like
technical traffic regulations but have been form ed institution
ally. They have their concepts o f what, in itself, is normal, the
norm al type and the norm al situation, and their concept o f nor
mality does not ex p en d itself, as in a technologized com m ercial
society, by being the calculable function o f a standardized regu
lation.'* They have o n e particular juristic substance, which no
doubt recognizes general rules and regularities, but only as the
emanation o f this substance, as som ething deriving only from
its concrete particular, inner order, which is not the sum o f
those regulations and f unctions. T h e cohabitation o f spouses
in a m arriage, fam ily m em bers in a family, kin in a clan, peers
in a Stand, officials in a state, clergy in a church, com rades in a
work camp, and soldiers in an army can be reduced neither to
the functionalism o f p redeterm in ed laws n or to contractual
regulations.
Th e various customs, regularities, and calculations within
such orders cannot and should not .seize and consume the
essence o f this order, but only serve it. Th e concrete inner or
der, discipline, and h on or o f every institution resists, so lon g as
the institution endures, every attempt at com plete standardiza
tion and regulation. It places the dilem m a b efore every legis
lator and anyone who applies the law, either to accept and apply
the given concrete legal concepts o f the institution or lo destroy
the institution. W here there is, fo r exam ple, still a family, the
legislatoi- as well as the jurist who applies the law, Hnds him self
I >I si in f lion s a m o n g Ju ristic Ways o f T h in k in g 55

oin p clled again and again to accept the concrete-order no-


iions o f the concrete institution o f the family, instead o f the
ihsiract arrangem ent o f a general concept. W lien they speak o f
die good head o f a fam ily o f the bonus paterfamilias, the judge
.md legislator thereby subject themselves to the traditional or
der o f the concrete pattern family. Such notions and concepts
.lie, despite all normativistic dissolutions o f the past century
.md despite the great number o f codified legal rules o f fam ily
l.ivv and other areas o f law, still today numerous and typical o f a
siilrstantive institutional order in contrast to pure normativistic
regulation. Every stndische law as such presupposes only those
recognizable concrete typical figures grow ing out o f the order
ol (he concrete conditions, fo r exam ple, brave soldiers, diity-
( onscious bureaucrats, respectable comrades, and so on. These
kinds o f figures provoke in many ways the criticism and .scorn o f
iiormativist-thinking jurists. Karl Binding prided him self on
having wrung the neck o f ghosts like the bonus Jtalerfamitiasd'^
A still-greater narrowness o f this renunciation o f every concrete
(orm shows itself in the criticisms which Professor J. Bonnecase
had recently launched against H au riou s theory o f institu-
lions, which is based com pletely on o rd er thinking; everything
is simply dismissed by identifying the concept o f institution as
'mysticism. "
Today, on the other hand, many jurists perceive the disinte
gration o f such concrete-order figures into a sum or into a sys
tem o f norms as unreal and ghostlike. W e will understand a
jurisprudentially important question better and solve a juristic
task m ore correctly when we elaborate a concrete form , such as
"defender o f the constitution, which normatively cannot exist,
becau.se according to it all authorized organs are equally de
fenders o f the legal order. ' T h e same is true o f the Fhrer o f
the m ovem ent, which normativist thinking must make into a
duly authorized state organ in order to incorporate him into
the constitutional system o f legality, just as in the nineteenth
(cntury it m ade the declassed monarch into a state organ. "
56 O n the Three Types o f f u r is t ic T h o u g h t

W e encounter similar difficulties when we pose the problem o f


incongruities (incom patibilities), that is, pose the question re
garding which functions and purposes are com patible or in
com patible with a specific concrete figure in public life, a
question that can be posed only in concrete orders, not m erely
normativistically. For normativislically, it is handled not in
terms o f concrete-order figures, but m erely in terms o f abstract
attribution points, by which naturally everything is com pati
ble with everything else and intrinsic incompatibilities could
never make any sen se." W e know that the norm presupposes a
norm al situation and a normal type. Every order, including the
legal order, is bound to concrete concepts o f what is normal,
which are not derived from general norms, but rather such
norms are generated by their specific order and fo r their spe
cific order.
A legal regulation presupposes concepts o f what is normal,
which develop so little from the legal regulation that the norm
ing itself becom es so incom prehensible without them that one
can no longer speak o f a norm . A general rule should cer
tainly be independent from the concrete individual case and el
evate itself above the individual case, because it must regulate
many cases and not only one individual case; but it elevates it
self over the concrete situation only to a very lim ited extent,
only in a com pletely defined sphere, and only to a certain m od
est level. I f it exceeds this limit, it no lon ger affects or concerns
the case which it is supposed to regulate. It becomes senseless
and unconnected. The rule follows the changing situation fo r
which it is determ ined. Even if a norm is as inviolable as one
wants lo make it, it controls a situation only so far as the situa
tion has not becom e com pletely abnormal and so long as the
normal presupposed concrete type has not disappeared. Th e
normalcy o f the concrete situation regulated by the norm and
the concrete type presupposed by it arc th erefore not m erely
an external, jurisprudentially disregarded presupposition o f
the norm, but an inherent, characteristic juristic feature o f the
D is tin ctio n s a m o n g Ju ristic Ways o f T h in k in g 57

n orm s effcclivcness and a normative determ ination o f the


norm itself. A pure, situationless, and typeless norm would be a
juristic absurdity.
In his book L ordinamento giuridico, Santi Rom ano had justifi
ably stated it is inaccurate to speak o f Italian law, French law and
so on and thereby think only o f a sum o f rules, while in truth
the com plex and heterogeneous organization o f the Italian or
French state as a concrete order determines this law. Th ere are
numerous authorities and combinations o f state authority or
state power that produce, modify, apply, and guarantee the juris
tic norms, but do not identify themselves with these norms. Only
that is Italian or French law. Th e legal order { t ordinamento
giuridico) is a uniform essence, an entity that moves to some ex
tent according to rules, but most o f all itself moves the rules like
figures on a gameboard; the rules represent, therefore, mostly
the object or the instrument o f the legal order and not so much
an elem ent o f its structure. " t fc added correctly that a change
in the norm is m ore the consequence than the source o f a
( hange in the order.
Decisionist Thinking (Decisionism)

T h e distinction developed here between norm and order


thinking only becam e quite prom inent and well known in re-
( ent decades. A m o n g old er authors one could hardly find an
antithesis like the one in the previously cited position o f Santi
Romano. Earlier antitheses did not concern the opposition o f
norm and order, but mostly that o f norm and decision, or norm
and command. These oppositions overlapped with other oppos
ing pairs such as ratio and votunlas, objectivity and subjectivity,
impersonal norm and personal will. They had been previously
brought to light because they involved old theological and
metaphysical problems, especially the question o f whether G od
commands som ething because it is good or whether som ething
is good becam e G od commands it. Indeed, Heraclitus told us
iliat to follow the will o f an individual man is likewise a Nomos.
O n e can find the ultimate juristic foundation o f all legal va
lidity and values in an act o f will, in a decision, which, as deci
sion, actually creates Rechl initially and whose force o f law
( annot be derived from the force o f law o f decision-rules. For a
decision that does not correspond to the rules also creates
Recht. These norm -contradicting decisions, having the force o f
l.wv, belong to every Rpchis-order. In contrast to this, a logically
( (insistent normativism must lead to the absurdity that the ap-
|iropriate normative decision derives its force o f law from the
60 O n the Three Types o j J u ris tic T h o u g h t

norm , whereas the norm -conlradicling decision derives its force


only out cjf itself, out o f its norm-contradiction!
For jurists o f the decisionist type, it is not the com m and as
com m and, but the authority or sovereignty o f an ultimate deci
sion with which the com m and is given that is the source o f all
R e c h t, that is, all ensuing norms and orders. T h e decisionist type
is not less eternal than the normativist. H e has, however, in his
purity only lately becom e prominent. For before the disintegra
tion o f the ancient and Christian notions o f the world order
throtigh m odern natural science, order notions as a prerequi
site o f decision were always an integral part o f the chain o f rea
soning. In this way, the pure nothing-but-decision was already
restricted by and incorporated into ord er thinking; it was the
emanation o f a pre,supposcd order. W hen the jurist and theolo
gian Tertullian'" states: W e are obligated to do som ething not
because it is good , but because G od commands it (n e q u e e n im

q u i a b o r m m est, id c ir c o a u s c u lta r e d eh em us, sed ([ u i a d eu s p r a e c i p i l ) , it


already sounds like juristic decisionism. But because o f the in
herent, presupposed, Christian concept o f God, it still lacks the
conscious notion o f com plete disorder and chaos that is trans
form ed into law and order not by the hand o f a norm but rather
only through pure decision. Th e ever-im penetrable decree o f a
personal G od is, so long as one believes in God, always already
in ord er and n ot pure decision. Th e Roman Catholic dogm a
o f the infallibility o f a Papal decisicjn likewise contains strong
juristic-dedsionist elements; but the infallible decision o f the
Pope does not establish the order and institution o f the church
but presupposes them: the Pope is, as head o f the church, only
infallible in the power o f his office; the Pope is not vice versa in
fallible.
Also in the Calvinist teaching o f the dogm a o f supralapsar-
ian Predestination, according to which G od had already de
cided conclusively b efore the Fall o f Man about salvation and
damnation, as well as grace and lack o f grace fo r each individ
ual human soul, one could find a decisionist stance against
l)is lin ctio 7 is a m o n g J u ris tic Ways o f T h in k in g 61

every regulatory restriction, measurement, and calculation o i


Ihe Divine decision. A t the same time, however, this teaching
reestablishes a genuine Recht and order concept, namely that o f
pure grace or lack o f grace, which had been debased by juristic
or m oral normativization. It returns this concept o f grace,
which statute thinking continually attempts to norm ativize and
relativize, back to its rightful place o f deserved incalculability
and immeasurability; it takes it out o f a humanized normativis-
lic order and places it back where it belongs in an exalted Di
vine order above human normativization. N ot only in C alvins
absolutist concept o f G od (G od is lege solutus, ipse sibi lex,
summa majestas) but also in his teaching o f predestination,
llieological notions make their appearance whose inherent de-
( isionism had also exercised an influence on sixteenth-century
notions o f state sovereignty, particularly those o f Bodin."' But
even B od in s theory o f sovereignty remains encompa,s.sed
within traditional order thinking, it retains the family. Stand,
and other legitimate orders and institutions, and the sovereign
is a legitimate authority, namely the legitimate king.""
Th e cla.ssic case o f decisionist thinking first appears in the
sc'vcnteenth century with ffob b es." A ll Recht, all norms and
slatutes, all interpretations o f laws, and all orders are fo r him
essentially decisions o f the sovereign, and the sovereign is not a
legitimate monarch or established authority, but m erely the one
who decides in a sovereign manner. Recht is statute, and statute
is the deciding com m and in the conflict over Rechl: Auctoriias,
non veritas facit tegemZ^ In this phrase, auctoriias does not signify
some prestately order o f authority; the otherwise (e.g., in
Bodin) still-existing distinction at that time between aucloritas
ind potestas--' also perished through the sovereign decision. It is
summa auctoritns and summa potestas in one. W hoever establishes
peace, security, and order is sovereign and has all authority.
As genuine and pure decision, this establishment o f order can
Mi-ither be derived from contents o f a preceding norm nor from
.1 previously existing order. Otherwise, it would be conceived
62 O n the Three Types o f J u ris tic T h o u g h t

cither norm alivislically as pure self-application o f the valid


norm , or in concrete-order thinking, as the emanation o f an al
ready preexisting order reestahlishment not establishment o f
the order. T h e sovereign decision is, therefore, juristically ex
plained neither from a norm nor from a concrete order, n or in
corporated into the sphere o f a concrete order, because fo r a
decisionist it is, on the contrary, the decision which hrst estab
lishes the norm as well as the order. T h e sovereign decision is
the absolute beginning, and the beginning (also in the sense o f
Arche) is nothing but sovereign decision.
Th e sovereign decision springs from the normative nothing
and a concrete disorder. Th e state-of-nature is fo r H obbes a
condition o f strife, the deepest desperate disorder and insecu
rity, a ruleless and orderless struggle o f all against all, the belliim
omnium contra onines o i the homo homini lupus)^^' T h e transition
from this anarchistic condition o f total disorder and insecurity
to the stately condition o f peace, security, and order o f a societas
civilis is only brought about by a sovereign will, whose com m and
and order is law. With Hobbes, the logical structure o f decision-
ism is most clear, because pure decisionism presupposes a dis
ord er that can only be brought into order by actually making a
decision {not by how a decision is to be m ade). Th e deciding
sovereign stirely does not have jurisdiction fo r the decision on
the basis o f an already-established order. First o f all, it is the de
cision that replaces the condition o f disorder and insecurity o f
the state-of-nature with the order and security o f the stately con
dition that makes him the sovereign and makes everything else
possible, including law and order. For Hobbes, the forem ost
representative o f the decisionist type, the sovereign decision
creates the state dictatorship o f law and order in and over the
anarchistic insecurity o f a pre- and substately natural existence.
3 Nineteenth-Century Juristic
Positivism as a Combination of
Decisionist and Statute Thinking
(Decisionism and Normativism)

The decisionist type is therefore particularly widespread


am ong jurists, because legal training and a jurisprudence di-
1 ectly serving legal practice have the tendency to look at all le
gal questions only from the viewpoint o f cases o f conflict and to
participate m erely to pave the way fo r a court decision on the
(on flict. O n e specific m ethod o f examination preparation and
juristic examination reduces this to crudely ascertaining an
swers and a quick decision on the case and to deriving its nor-
mativist foundation from the text o f a written norm. In such a
manner, juristic thinking orients itself exclusively toward cases
o f collision or ccrnflict. It is governed by the notion that a con-
(lict or a clash o f interest, thus a concrete disorder, is first o f
all overcom e and brought into order through a decision. The
norms and rules, with which the jurisprudential foundation o f
(he decision has to do, theieby becom e m ere viewpoints fo r dis
pute resolutions, jurisprudential material evidence fo r the basis
ol judicial decisions. Th ere is, then, really no longer any system
atic jurisprudence; every jurisprudential argument is nothing
but a potential basis fo r a decision which is waiting fo r a case o f
dispute.
Th e propensity toward this kind o f jurisprudence occurs par-
licularly when a self-contained codification becomes authorita
tive as positive norm and positive law fo r professional civil
64 O n the Three Types o f J u ris tic T h o u g h t

services, judges, and the lawyers who adapt themselves to the


thinking o f such a judiciary. This positivism identifies statutory
governing with Recht; it recognizes also when it makes conces
sion to the possibility o f prescriptive law instead o f Recht, only
the normative fixed legality. In the two great states in which ju
ristic positivism achieved dom ination in the nineteenth century,
in France as well as in Germany, it becam e apparent that, as the
m ode o f operation o f the state legality o f a professional civil ser
vice judiciary, it was only conceivable under the effective influ
ence o f written codifications and on the basis o f a stable,
domestic, political ord er and security. In France, the positivistic
nondistinction between Recht and law, the identity o f Droit and
Loi, found its jurisprudential expression in the Ecole de l exgse.
For half a century approxim ately from 1830 to 1880 it had
dom inated uncontested and, despite m ethodological and philo
sophical criticism, is still today in no way elim inated in prac
t i c e . A l s o in Germany, this positivism o f the legal rule has until
now been known to pass itself o f f as tAcjuristic method. Neither
the teaching o f prescriptive law nor the decades-long m ethod
ological discirssions over the relationship o f law and judgm ent,
law and ju dge, Free-Law Movem ent, and Inleressenjurisprudenz^^
advanced to the decisive antitheses o f the differences between
statute-, decision-, and order thinking. They sought only the
loosening up and better adaptation o f legal thought in a situa
tion that was changing and becom ing unsteady.
T h e jurisprudential positivism o f the nineteenth century be
longs in the great intellectual-historical context o f its age. It,
therefore, not only has some contiguity and kinship with the
philosophical positivism founded by Auguste Comte, but also
with the pcrsitivism o f the natural sciences. But above all it is
com prehensible in the peculiarities o f the legal situation o f this
century. For the jurisprudence o f the nineteenth century, po.si-
tivism signihed first o f all som ething polem ical: the rejection
o f everything extra-legal, all Recht not created through human
statutes, whether it appears as Divine, natural, or rational law.
D is tin c tio n s a m o n g J u ris tic Ways o f T h in k in g 65

Recht thinking becom es legality thinking. Th e jurisprudential


foundation o f this legalitarian positivism has passed quickly
through three phases: one had first o f all to adhere to the will
o f the lawgiver; then, in order not to fall into subjective and psy
chological analyses, appear to have spoken objectively the will
o f the law; finally, one had to declare only the law itself, as a suf-
Hcient norm, to be authoritative. Therein lain an unconditional
subjugation to the will or the contents o f a specilic norm , but
at the same time also a lim itation on this subjugation: one sub
jugates on eself only to the norm and its clearly identihable
contents. That gives to positivistic legality thinking the ostensi
ble value o f greatest objectivity, firmness, inviolability, security,
and calculability, in short, positivity. In a stable situation, this
m ode o f thinking is plausible, and it appears possible in reality to
disregard all metajuristic viewpoints. Positivism is then held to
be a pure juristic m ethod, whose purity is based on the fact
that all metaphysical as well as all metajuristic considerations
are excltided.
Metajuristically, however, all ideological, moral, econom ic,
political, or any other kind o f considerations, are not just pure
juristic viewpoints. N either the normal-situations or normal-
lypes presupposed in legal regulations, nor the pursuit o f the
goal determ ined by the statutess framers, nor the underlying
|)rinciples, nor the nature o f the thing, nor the m eaning o f a
definition, but only the obvious, indisputable contents o f the
norm itself are, fo r these positivistic jurists, allowed to be au-
ihoritative. Only then does he believe he is really staying on the
secure groun d o f the positive and pure juristic handling
o f the contents o f the norm. In every other case, he fears slip
ping into the incalculable subjectivity o f metajuristic consid
erations. Security, firmness, inviolability, and objectivity are
ilready once again endangered. This way o f thinking found its
<learest and best expression in the h ook Jurisprudenz und Rechts
philosophie (1892) by Karl Bergbohm. H ere the combination o f
normativism and decisionism, which is the characteristic o f the
66 0 ? i the Three Types o f f i ih s t ic T h o u g h t

positivist type, also comes out quite distinctly. Rechi fo r Berg


bohm contains, on the one side, the notion o f som ething nor
mative, som ething functioning as an abstract rule intended to
be follow ed (p. 81); at the same time, this Recht is nothing but
human statute, and everyone who imagines a Recht that is in
dependent o f human statute enters into the corru ption o f
natural law (p. 131). In so far as this positivism furnishes a
philosophical legal foundation, it leads in the intellectual direc
tion o f the interests o f an individualistic legal-certainty and
appeals to the fact that it would be w rong to di.sappoint the Er-
wartung, the expectation, and the trust o f the legal community
(Rechtsgenossen) evoked through the statute. Therein one be
holds the righteousness o f Positivity.
But security, certainty, firmness, strict scientific m ethod, func
tioning calculability, and all kinds o f positive qualities and ad
vantages were in reality generally not advantages o f the legal
n orm and human statute. These were, instead, only the attrib
utes o f the norm al, relatively stable situaticjn o f a political sys
tem at that time in the nineteenth century, which had its focal
point in legislation and therefore in the legality system o f a leg
islative state. N o t because o f the norm , but because and in so
far as this state system was constructed in a certain stable, se
cure, and firm manner, could one be so positive. Even the
simplest problem o f interpretation and p r o o f had to teach one
that the firmness and security o f even the most painstakingly
and carefully written legal texts remain in themselves entirely
questionable. W ording and literal m eaning, historical develop
ment, sense o f Justice, and communication recpiirements op er
ate confusingly in the most varied m anner in establishing the
unquestionable contents o f legal texts and regarding ques
tions o f p r o o f and qualification o f the facts in the pure Juris
tic establishment o f evidence.
O ne can understand the indignation that struck that fanatic
o f positivistic legal certainty, Jerem y Bentham,'*' by the very
word interpretation; and his basic reason is the same as that
IH sfin ction s a m o n g J u ris tic Ways o f T h in k in g 67

for the above-mentioned (p. 59) indignation o f H obbes against


Ihe discretion o f the interpreting jurists: I f the ju d g e presumes
and claims the power to interpret laws, then everything be
comes com plete incalculable discretion. With this m anner o f
proceeding there is no security.'*- N either the English practice
o f subordination to precedent cases (the practice o f so-called
case law), nor the interpretations o f the Roman-legal jurists, the
Roman lawyers, satisfy Bentham s positivistic requirem ent o f
unconditional certainty and calculability. Only when the ju d g e
has been totally turned into a function o f the clear w ording and
contents o f the statute, have we approached the ideal o f cer
tainty and inviolability. Then there is indeed no lon ger any
jurisprudential productivity and only the certainty, firmne.ss,
and inviolability o f a norm -fuliilling apparatus functioning
according to a schedule, fo r which, instead o f a jurisprudential
education, one applies m ore pragmatically the technical school
ing o f a good switchman.
Th e positivist is n ot autonom ous and th erefore not an
eternal type o f jurisprudential thinker. H e subjects him self
dccisionistically to the decision o f whichever current legislator
|)ossesses sUite power, because only this legislator has the actual
power to bring about the decisions realization. But, at the same
(ime, the positivist demands in addition that this decision have a
lirm and inviolable value as norm, that is, that the state legislator
him self also be subject to the very same statute and its interpre-
(ation that had been created by him. Only this system o f legality
does he call a Reehtsstaat," although it substitutes a legislative
slate fo r a Recht-sriitc, and the interest o f legal certainty fo r jus-
lice.'*'* But through the normativism o f legality, this legal system
;igain rises above the power-decision o f the state, which it has
subjugated in the interest o f certainty and firmness, and now
places normative demands on the legislator. H e therefore estab
lishes his standpoint first on a will (o f the legislator or the law),
ihen, against this will, directly on an objective law. In the histor
ic al devc^lution o f the formula one is able to identify the sequence
68 O n the Three Types o f J u r is tk T h o u g h t

fro m the will o f the legislator, through the will o f the law, to the
law itself. It is natural to surmise from this an intrinsically consis
tent developm ent from will to norm, from decision to regula
tion, from decisionism to normativism. But instead o f growing
out o f the intrinsic consistency o f a specific m ode o f thought,
this sequence has only becom e possible through the peculiar
combination o f decisionism and normativism in the form o f pos
itivism. D epending upon the situation at hand, it permits posi
tivism to be sometimes decisionist and sometimes normativist in
order to satisfy the sole authoritative positivist requirem ent fo r
certainty and calculability. That positivity always lies in the inter
est o f the real certainty, firmness, and calculability o f that which
is actually realizable, whether that be the decision o f the legisla
tor or whether it be the statute emanating from his decision and
the legally calculable decision emanating from that statute. That
positive value o f law is distinct from other kinds o f value in that
it is neces.sarily always something real and factually realizable di
rectly through human power.
Now a fact, a pure fact, is naturally not a source o f law. Th e
jurisprudential question focuses on how this solely factual
point will o f the law or the m om ent o f the realized value to
which the positivist adheres, is to be com prehended juristically,
whether as norm or as decision or as part o f an order. T h e posi
tivist will be inclined to dismiss this question as to the beginning
o f the positive value o f the norm as in itself no lon ger a juristic
question. But he cannot also escape the jurisprudential neces
sity, already at the point at which he initiates his jurisprudential
activity, to include the stttirces o f Recht o r the foundation o f
value in a jurisprudential category. H e will, therefore, explain
every real factual m om ent in which the positive value begins, ei
ther normatively or decisionistically. From the normativist side,
a nineteenth-century positivist, G eorg Jellinek, had coined the
typical expression: normative power o f the factual. Because
he proceeds from the normative motivating power o f law,
facts and data, which undoubtedly exercise a particularly strong
D is tin ctio n s a m o n g J u r is tic Ways o f T h in k in g 69

motivating power, at once also have a norm ative power.*' Th e


form ula o f normative power o f the factual has been repeated
innum erable times.
(Considered on the basis o f legal logic alone, it is a m ere word
combination and only a paraphra.se o f the em pty tautology that,
given its normativistic com ponent, positivism can obviously al
ways only explain factual positivity as a norm ative power. A
positivist with sharper logic would speak o f a decisionist power
o f the factual, which natxrrally is at least as great as the norma
tive power. On the other hand, a positivist would not like to ap
peal to the positive power o f the factual, although by his
submission to the positive fact o f the power o f enforcem ent he
supposes nothing other. But the self-revelation that lies in the
idiom o f the positive power o f the factual would also probably
be jurisprudentially intolerable to a pure positivist. This indeed
shows that the positivist is not an original type o f jurisprudential
thinker.
O ne could speak previously o f an ordering power o f the
factual. However, concrete-order thinking does not correspond
in the .same degree to the positivistic axithority aimed at the func
tioning o f certainty and justice as does the combination o f nor
mativism and decisionism, which constitutes the jurisprudential
nature o f positivism. A pure normativism must deduce the posi
tive norm from a norm superior to the positive; concrete-order
thinking would likewise lead to a comprehensive, total unified
order superior to the positive. Decisionist thinking, on the
other hand, permits the positive connection to a definite factual
point in time, in which from a previous absence o f norm or ab
sence o f order springs forth the positive sole noteworthy posi
tive law, which then, however, is supposed to have additional
value as positive norm. O nce established, it nevertheless works
against the will o f the one who had established it; otherwise it
(o u ld not create the nece.ssary certainty which one has com e
lo expect from the state. But only the decisionist com ponent
makes it possible fo r the positivist, instead o f always leading
70 O n the Three Types o f Ju ristic T h o u g h t

further into the boundless metajuristic, to break o f f the ques


tion o f the ultimate fotmdation o f the prevailing norm in a d e f
inite m om ent and in a definite place, and to acknowledge in a
historical point in time the actually existing, actually prevailing,
will o f a sovereign power. It does so without presenting this
power as an institution or other kind o f concrete cjrder o r gen
erally to inqtiire about its actual justification.
Th e certainty, firmness, and inviolability to which the positivist
appeals relating to the decisionistic com ponent o f positivism is
in reality only the certainty, firmness, and inviolability o f the will
o f w hoevers .sovereign decision makes the norm into the effec
tive norm. In appealing to the will o f the state legislator or state
laws, to an actually existing supreme power as an expressed
and prevailing decision o f the state legislator, he is, in terms o f
legal history, bound to the decisionist state theory that devel
oped in the seventeenth century and must fall with it. However,
iti appealing to law as norm, he binds its certainty and firmness
onl)' to the certainty and firmness o f the legality o f the legislative
state which achieved domination in the nineteenth century.
O nly to the extent that behind the certainty requirement o f pos
itivism is concealed the underlying universal-human striving fo r
protection against risk and responsibility, can one essentially
state if only in a disparaging sense that we are dealing here
with an eternal and ineradicable universal human type. As a
jurisprudentially notable manifestation, juristic positivism is,
on the contrary, com pletely bound to the state and societal
conditions characteristic o f the nineteenth century. W hile the
normativist and decisionist are always reoccurring types o f ju
risprudential thought, the combination o f decisionism and nor
mativism which constitute that nineteenth-century positivism
can be considered neither an original nor an eternal juristic
type.
I f the alleged ptire juristic m ethod o f this kind o f positivism
rejects every im pure juristic consideration as ideological, eco
nomic, sociological, moralistic, or political, and consequently
D is lin rtio n s a m o n g J u ris tic Ways o f T h in k in g 71

excludes all o f these factual considerations, then not much


l emains fo r pure juristic argumentation. W hat can remain as
residue, if one removes everything ideological, econom ic, or
political from a case and its evaluation? I f juristic thought is
lorn loose from every contextual m eaning and from the pre
supposed normal situation, then it brings itself out o f necessity
into an ever sharper contrast to all contents, to everything that
is ideological, moralistic, econom ic, or political. As a result, the
distinction between juristic and ideological, juristic and eco
nomic, juristic and political, juristic and moral, and so on, be
comes so sharpened that in a logically consistent dialectic only
the ideological, econom ic, ethical, and political absurdity ulti
mately remains as the sole specific characteristic o f an unques
tionably pure, nothing-but-juristic type o f thought.
Max Planck has shown how in striving fo r unqualified cer
tainty the positivism o f the natural sciences relied only upon
sensation and consequently could no longer distinguish decep
tive and illusory sensory perceptions from others, because there
are no illusions in positivist physics.*' Th e fate o f jurisprudential
positivism aimed at certainty and avoidance o f subjective choice
has some similarity with this trend. I f the normality o f the con-
( rete situation presupposed by the positive norm but ignored by
|K)sitivist jurisprudence collapses, then the use o f every firm, cal-
( ulable, and inviolable norm collapses. Then, the righteousness
o f positivity o f which Erich Jung spoke also ceases. Without the
system o f coordination o f a concrete order, juristic positivism is
( apable o f distinguishing neither right and wrong, nor objectiv
ity and suljectivc choice.
II Classification o f Juristic
Ways of Thinking in the
Overall Development of
Legal History

T h e r e does not exist a free-floatin g { freischwebende) ju


risprudence anym ore than there exists a free-floating intelli
gentsia.^' Legal and jurisprudential thought expresses itself
only in connection to a historical, concrete, total order. It can
not also rely upon free-floating rules or free-floating decisions.
Even the fictions and illusions o f such fre ed o m and such
floatin g belong, as an accompanying symptom, to a specilic
condition o f a disintegrated ord er and are only ccrmprehensi-
Itle within it. Th e types o f thought advanced here are therefore
presented not relativistically, or arbitrarily so to speak, but
rather maintain their status in the overall relationship to the
concrete present sittiation and the reality o f our current legal
life.
Medieval Aristotelian-Thomistic natural law is a living unified
order constructed out o f stages o f essence and being, upper
and lower orders, and classifications and exclusions. Th e nor-
mativistic misinterpretations through which this natural law was
( ast o f f in the previous century are dissipating today. Out o f the
( ollapse o f the many m edieval orders and the order thinking
lielonging to them, there arose since the sixteenth century the
order o f the state as the which absorbed in itself all the nu
merous other orders. T h e decisionism o f Hobbesian political
and legal theory is the most logically consistent and therefore
74 O n the Three Types o f fu r ls lic 'Thought

the most consequential legal-historical jurisprudential expres


sion o f the new thinking on sovereignty. With him appears the
great Leviathan, which devoured com pletely the other orders.
H e sets aside or relativizes the traditional feudal legal, stndischen
and ecclesiastical communities, hierarchical stratification and
inherited rights. H e sets aside every right o f resistance based on
such prestately orders, gives the lawgiver a m onopoly on Recht,
and seeks to construct the civil order from the individual. From
this perspective o f order, he seeks to create from a tabula rasa an
order and community, out o f nothing. T h e contract that pro
duced die state (m ore precisely: the consent o f the individual)
is, however, only possible through a sovereign guarantee o f the
order thereby established and only through the state whose
power just arose from this general consent. T h e sovereign is om
nipotent through the consent that he him self produced and
m ade po.ssible through the om nipotence and decision o f the
state. Only after the new ground was prepared through this state
that produced civil peace, security, and order during tlie great
stability o f the eighteenth century could a m ore normativistic ra
tional law allow absolute decisionism to recede. This norm a
tivism dissolved all natural orders into norms and individualistic
contractual relationships, until finally in the nineteenth cen
tury it culminated in the positivistic rule-functionalism o f a
bourgeois, individualistic, commercial society.
1 German Development
Up to the Present

C on crete-ord er and communitarian {Gemeinschaft) thinking


iias never ceased in Germany. In legal practice, it was hrst set
aside in the nineteenth century, strictly speaking in the second
liair o f the nineteenth century, through so-called legal and leg
islative positivism. Until then order concepts relating to ecclesi
astical and internal affairs rem ained in effect. T h e internal
order that developed since the seventeenth century with the
new German territorial states never actually produced a tahula
rasa. Th e institutional certainty o f the Catholic Church and that
o f its spiritually educated life in Catholic countries hut no less
in Protestant Germany in the Lutheran sense o f the natural or
ders o f creation always determ ined the reality o f legal life in
a much stronger way than did the dom inating rational-law legal
and political theory o f the philosophers. Through the slow, hut
nonetheless m ore secure path o f theory, these positivist theo
rists transform all governm ental and domestic orders into con
tractual and legal norm ings and hy doin g so destroy them as
concrete orders and communities. Luther had forcefully de-
lended, and knew how to safeguard, the natural internal orders
o f marriage, family. Stand, person, and office against theologi-
( al, moral, and juristic norrnativizations. His phrase: I f you are
a mother, then act according to the laws o f m otherhood which
is com m anded o f you and which Christ did not rem ove but
76 O n the Three Types o f J u ris tic T h o u g h t

rather co iih n n ed ,'*^ expresses most beautifully the dom inance


o f the existing concrete order over abstract normativity. This
phrase is as valid fo r mothers as it is fo r every Stand, kaiser,
prince, judge, soldier, peasant, husband, and wile. For Luther,
all Recht is not abstract norm ing, but a concrete natural order
and derived from the concrete condition o f a Stand, not from
rules.
But even in the natural-law system o f som eone like Samuel
Pufendorf,'*** who as an individual was still a seventeenth-century
orthodox Lutheran, marriage and family were no longer con
crete natural orders and communities. They were only recipro
cal legal relationships o f individuals contractually constituted
on the basis o f the dom inating norms o f rational law.'*'' T h e fi
nal arguments o f a century o f individualistic rational law were
articulated by Kant when he traced marriage back to a contract
o f individuals mutually interested in their sexuality."* Nonethe-
lc.ss, in the reality o f domestic political life, concrete orders
were still not destroyed by the end o f the eighteenth century.
Th e second part o f the Prussian Law C ode o f 1794 showed that
the codifying lawgiver o f the absolutist state still understood
church, Stnde, family, household community, and m arriage as
institutions and in no way perceived them as m ere functions
o f legal regulations. It is noted at the very begin n in g (Part I,
Title I, paragraph 2): Civil society consists o f .several smaller as
sociations and StndehonnA together through nature or law or
both. Domestic servants still belong to the household comm u
nity (paragraphs 3, 4), churches and sects are still distinguished
from one another, some are adm itted, and therefore incorpo
rated into the total order of public life, others in contrast are
only tolerated, and therefore not perceived as a m em ber o f
the public order. T h e liberal concept o f the religious society is
still not recognized. Only the victory o f the French Revolution
had achieved an individualistically constituted, total, civil soci
ety and, as a further consequence, also the positivistic jurispru
dence o f the nineteenth century.
C la ssifica tion o f Ju ristic Ways o f T h in k in g 77

T h e spirit o f the German people had lon g resisted the liberal


Ideas o f 1789 and their disintegration o f order thinkin g."
Fichte had overcom e the individualistic Jacobinism o f the year
1792 in an intensive inner struggle with him self (and by him
self).*'^ Fichtes Idealism o f F reed om is not predestined fo r
concrete-order thinking to the same extent as H e g e ls objec
tive idealism. But Fichte had ultimately advanced in his own
thinking, from the low conception o f the state (as a servant o f
property owners) to the highest and most German order con
cept, to the Reich as a concrete-historical political unit which
can distinguish frien d and enem y.' O ther motives fo r intellec
tual resistance came from a romantic-intuitive reaction against
abstract rational law, and from a traditional-conservative restora
tion. T h e historical legal school o f Savigny and its teaching
o f prescriptive law had lon g and successfully com batted the
spirit o f positivistic codihcation efforts and opened up new
legal-historical sources, which only gradually overcam e foreign
thougliLs. Schellings " w onderful cosmic-naturalistic philosoph
ical theory o f organism, o f worldview and o f myth, did not have
the same direct success and not the same effect. Yet, it also be
longs to the great collective achievement o f the German spirit
in which the German people at that time rem em hered their
own dignity and power when faced with a foreign invasion.
A ll of these currents and directions in German resistance
found their systematic summation, their summa, in H e g e ls
legal and political philosophy. In it, concrete-order thinking
once again came alive (b e fo re the collapse o f follow ing genera
tions) with an im m ediate force, the likes o f which could hardly
have heen expected any longer after the developm ent o f
seventeenth- and eighteenth-century political and legal theory.
In order that feeling, will, intellect becom e real, they must he
cultivated; Recht must grow into custom, into habit, the state
must have a rational organization, and then these transform
ihe will o f individuals into an actual legal on e. I f one wants
lo marry or build a hou.se, and so on, then the result is only
78 O n the Three Types o f J u ris tic T h o u g h t

im portant fo r this individual; the truly divine is the institution


o f agriculture itself, the state, marriage, legal arrangements.
Such phrases are only particularly pointed epigram m atic exam
ples o f a total and conscious ord er thinking. A ll individualistic,
contractual teaching o f abstract rational law is seen through
here with a sense o f absolute superiority; fam ily and marriage
are again recognized as natural partnerships; Kants construc
tion o f marriage as a mutual contract o f sextially desirable indi
viduals is called disgraceful {Rechtsphilosophie, paragraph 7,5).
Through Stnde with special professional hon or and through
corporations, civil society is fitted into a great total order and
subordinated to the state. In this way, the theoretical founda
tion was provided fo r rendering innocuous, as far as it was still
possible in the reality o f the nineteenth century, the claim to to
tality that the bourgeois contractual society extolled in that cen
tury and which had also ultimately prevailed. T h e state is a
form {Gestalt), which is the com plete realization o f the spirit in
being {Dasein); an individual totality, a Reich o f objective rea
son and morality.
From the decaying system o f the H oly Roman Empire, H egel
lied to the Prussian state. Th erefore, his construction o f the
state retained so many elements from the concept o f the Reich
that this state is depicted in a way that would be ridiculous to say
about any state in a general theory o f the state : a Reich o f ob
jective morality and reason, which is in a po.sition to stand above
civil society and to fit it in lio m above. The very fact that the
state in nineteenth-century Germany was conceived as a Reich,
shows the difference between the German concept o f the state
and that conceived by western-liberal rational law or positivism.
This latter concept o f the state is suspended between the deci
sionism o f the dictatorial state construction o f Hobbes and the
normativism o f later rational-law thinking, between dictatorship
and the bourgeois Rechtsstaat. H e g e ls state, in contrast, is not
the civil peace, security, and order o f a calculable and en force
able legal functionalism. It is neither m ere sovereign decision
C la ssifica tion o f J u ristic Ways o f T h in k in g 79

nor a norm o f norms, nor a changing combination o f both no


tions o f the state, alternating between the state-of-exception
(Ausnahmezustand) and legality. It is the concrete order o f or
ders, the institution o f institutions.
As governm ent philosopher, H egel died in 18.31. Already in
the follow ing generation, the great representatives o f the G er
man theory o f the state Loren z von Stein in Vienna and
R u d o lf Gneist in Berlin no lon ger dom inated intellectually.
T o L oren z von Stein (1815-1890) the dom ination o f the state
over .society had already becom e problem atic; state and society
were now derived from one another like stroke and counter
stroke. But Stein could still hope to save the autonomy and in
trinsic right o f the state vis--vis society, the intrinsic significance
o f executive power vis--vis the legislature, and the govern
ment vis--vis the claims o f popular parliamentary representa
tion. However, his attempt has, despite the most w onderful
scholarly work, rem ained without practical results. A book full
o f concrete-order thinking such as his VerwaUungslehre (first
published in 1865), which particularly attem pted to develop a
genuine concept o f governm ent from such thinking, could no
longer strongly influence constitutional thought. R u d o lf Gneist
(1816-1895) also stopped at the state; self-governm ent is fo r
him the process by which the (educated and property-owning)
citizens raise themselves to the level o f the state. But despite all
the theoretical claims o f state domination, civil society appears
to him already as the undoubted victor. Yet the state and socie
tal picture is total and concrete. The hook about a Reehtsstnat
(1872) furnishes a vivid exam ple erf this, because here the
Rechtsstaal is not thought o f as an abstraction defined only by
statutes, but as a state constructed harmoniously o f state and so
ciety.' Th e collective jurisprudential works o f hoth German
constitutional theorists suffer from this futile endeavor at incor
porating civil society into the state. Jurisprudential reason and
concrete reality, reality and reason, are still not torn asunder in a
normativistic-positivistic sense. Th e liberal dcictrine o f separation
80 O n the Three Types o f J u ris tic T h o u g h t

o f powers, the foundation o f tlie liiteral Rechtsstaal and the nor-


mativistie positivism associated with it, is by Stein much m ore
than by Gneist set against German ord er thinking. Th erefore,
their works are still fo r us today o f actual interest, monuments
o f a genuine, if unsuccessful, creative effort, and not only a
storehouse o f valuable materials.
O tto von G ierkes organic theory o f the state and his theory
o f the real personality o f the grou p is, in contrast, no longer, a
concrete theory o f the state, but a general theory o f associa
tion ." Indeed, his interest in order and community is alive and
the inherited estate o f German legal thought still strong and
powerful. But the liberal-democratic antithesis o f corporate as
sociation {Genossenschaft) and institution clouds the objectivity
o f his legal-historical insights. H e ccmstructed the Prussian
monarchy o f the nineteenth century, which was desperately on
the intellectual defensive, as a residue o f the institutional peak
o f the absolutist era and thereby unintentionally sacrificed it.
Despite all the provisos in favor o f the dom inating elements o f
the state and the great success o f the first volum e o f fiienossen-
schafistheorie (1868), this as.sociation theory .sank, in the end,
into the typical dissension o f nineteenth-century national liber
alism. It was no lon ger capable o f becom ing the creative master
o f the enormous materials that it brought together with a
mighty hand. T h e critici.sm which Gierke directed against the
surging juristic positivism o f Laband in 1883 rem ained just as
unsuccessful as that o f Loren z von Stein. Based upon his own
abundant concrete political knowledge, Stein warned in the
years 1885-86 about the separation o f a jurisprudence o f public
law posing as juristic. "
In the face o f individual historical events and problem s in
constitutional law, many examples could naturally be cited to
prove that jurisprudential thinking in Germany had never
evolved into normativistic abstractness. H ere belongs above all
the attempts to construe the foundation o f the North German
Confederation o f 1867 and other com m on actions o f a founding
C la ssifica tion o f J w is tic Ways o f T h in k in g 81

character not as contract but as a com plete act {Gesamlakt) or


agreem ent {Vereinbarimg) distinct from individualistic con
tractual notions.'** Most o f those enm eshed in a nineteenth-
century positivist-normative legal theory could not understand
the actual bearing and fruitfulness o f this differen ce between
contract (Vertrag) and agreem ent and could not generally
recognize in such a distinction the inherent significant onset
o f a m ovem ent to overcom e liberal-individualistic contractual
thinking. A fter the W orld War, similar unsuccessful attempts
were m ade once again in labor law, when it came to the point o f
taking the wage agreements between em ployers and em ployees
out o f the sphere o f bourgeois contract thinking in civil law and
to construe the differen ce between an agreem ent and a con
tract. This attempt also could not win acceptance in the con
crete general situation o f the political system o f that time. Still,
such starts hold symptomatic significance and demonstrate the
continuous force o f concrete-order thinking beneath the cover
o f a superficial positivism.
C om pared to these prom inent details in legal scholarship, it
is o f far greater significance to what extent concrete-order
thinking survived in the practice o f governm ental administra
tion and particularly in that o f the Prussian Army. Th e Pruss
ian Arm y and the governm ental administrative organization
were in themselves too firm and vigorous creations and orders
to have allowed their inner intrinsic right to be degenerated by
normativistic or positivistic legal thinking. In concepts like or
ganizational power, official authority, leading fo rce, insti
tutional police, and similar structures o f constitutional and
administrative law, an indestructible order-thinking manifests
itself in the public law o f a state, which, after all, first made pos
sible a governm ental and administrative state organism.
Prom inent examples o f this kind stand out naturally in the
struggle o f the Prussian A rm y leadership against the norma-
livistic constitutional thinking o f the liberal Rechtsstaal. On the
occasion o f the regulation o f military discipline and military
82 O n the Three Types o f J u ris tic T h o u g h t

punishm ent in the years 1872 and 1873, and the Im perial
d ecree regarding hon or courts o f May 2. 1874, these adver
saries w ere hound to clash publicly with each other. L eader
ship and the power o f com m and, supreme com m and, supreme
comm ander-in-chief, and supreme legal authority, could not be
torn apart from each other without destroying the Prussian
Army. T h e leadership necessary in every concrete-order unit
and community showed here its intrinsic connection with the
coticcpts o f discipline and honor.
For normativistic-constitutional legal thought, however, it was
juristically self-evident that every jurisdiction, as a I'unction
stringently bound to norm , had to be separated from leader
ship. A dom inating kind o f legal thought based on the com
plete antithesis o f norm and comm and. Lex and Rex cannot at
all legally grasp leadership thinking {Fhrergedanken). It de
mands, therefore, an oath to the constitution, to a norm, instead
o f to a leader {Fhrer) Its doctrine o f separation o f powers,
separates justice and administration and makes necessary an
even sharper separation o f military jurisdiction, disciplinary ju
risdiction, and military leadership. For the Prussian king, how
ever, every individual verdict o f the honor court and every
appointm ent o f a military ju d g e was as much a discharge o f his
military leadership as a general order regarding hon or courts
and their principles. That it would also be legally impermissible
and impossible to tear military leadership, application o f disci
pline, qualifications o f officers, and disciplinary legal affairs
from each other, must simply be understood in itself as the legal
sentiment o f a Prussian king who thinks entirely in terms o f the
concrete ord er o f the Prussian Aimy.
Ibday, after concrete-order thinking has again been revived
with a new communal life {Gemeinschaftsleben), the legal axiom
that truth, discipline, and honor cannot be separated from lead
ership, is better understood by us than the liberal-constitutional,
power-separating, norm ativistic way o f thinking o f a bygone
individualism . ' Since the political m ovem ent {slaatslragende
C la ssifica tion o f J u ris tic Ways o f T h in k in g 83

Bewegung)-'''^ swears absolute loyalty to the Fhrer, we can today


do im m ediate justice once again to the legal nature o f an oath
o f allegiance. A normativistic legal type o f thinking, however, is
capable o f grasping the desertion o f a deserter or the disloyalty
o f a traitor only as a punishable deed, only as a matter-of-fact
supposition o f a pronounced punishment by the state. It cannot
understand these in terms o f the essential w rong and specific
crim e o f violating an oath and treachery.
2 Developments in England
and France

T h e jurisprudence of other European nations has found other


expressions and form s o f self-defense against normativistic pos
itivism. In this regard, English jurisprudence can be left out o f
consideration, because the English m ethod o f so-called case
law, o f Fallrechts, is not in the same m anner susceptible to the
one-sidedness o f normativism. This lies on the nature o f the thing
and applies to the legal life o f all countries in which case law
dominates, consequently also fo r the United States o f America.
Still, in this respect, great differences persist. In the practice o f
case law, a rational-law and natural-law normativism is, o f course,
also possible. In the interpretation frequently advanced by
Am erican jurists, the decision o f a precedent case is regarded
as bin ding only in so far as an underlying norm appears in the
decision by which the ju d ge in the precedent case, as well as those
in subsequent cases, is bound. Thereby the practice o f case law
approximates once again rule-thinking, even if it cannot so eas
ily be transformed into the narrow legal-positivism that must oc
cur with the great codifications o f entire areas o f law.
A ccord in g to the English conception o f case law, however,
precedent is binding as an individual case. A precedent is not
bound to the norm underlying the decision and also not even
(as in Blackstones construction) by the obvioixs manifestation
o f custom in the precedent case. * Therein perhaps could be
86 O n the Three Types o f J u ris tic T h o u g h t

em bodied a purer decisionism as distinct from the Am erican in-


clinaticm toward natural-law and rational-law normativism. The
binding to the precedent would then be considered binding
only to the decision o f the previous ju dge. Th ere are to be
found in English legal thought particularly clear and pure ex
amples o f genuine decision o f which, besides Hobbes, I would
like to cite the previously m entioned legislative state positivism
o f J. Bentham and fo r the nineteenth century, above all, Austin.
Yet, a decisionistic interpretation does not appear to m e to fit
exactly the typical peculiarity o f this practice in case law. Cer
tainly, it is not easy fo r the kind o f jurists on the European con
tinent to get used to the autochthonous way o f thinking o f the
insular Engli.sh legal practice. It would, however, be conceivable
that later judges should be bound neither by the norm underly
ing the decision o f a previous ju dgm ent nor by the previous
judgm ent as pure decision, but m erely to the ca.se as such.
Th en English case law would em body an exam ple o f concrete-
order thinking, which adheres exclusively to the inner Recht o i a
specific case. T h e precedent, including its decision, then be
comes the concrete paradigm fo r all subsequent cases, which
have their Recht concretely in themselves not in a norm or a
decision. I f one views the .second case as a case equal to the pre
cedent case, then to this concrete equality also belongs the or
der which is manifest in the previous ju dicial decisicxn.
Th e state o f jurisprudence in the romance countries was, in
contrast to England, characterized mostly by great codifica
tions and the consequent manifestations o f positivist doctrine
and practice. H ere begins likewise, almost simultaneously with
the German Free-Law Movement, even though less radical, a
m ethodological critique and awareness (Gny and Saleilles).
However, a new kind o f tliinking also appeared. Th e doctrine o f
the institution, which Maurice Hauriou (1856-1929) had devel
oped during the period 1896-1926, contained the first system
atic attempt o f a restoration o f concrete-order thinking since the
dominance o f juristic positivism. Santi Rom anos previously
C la ssifica iion o j J u ris tic Ways o f T h in k in g 87

m entioned very significant theory o f Ordinamento giuridico was


already influenced by this work. Hauriou, long-standing Doyen
on the law faculty at Toulouse, was the famous antagonist o f
his fam ous positivist colleagu e in Bordeaux, Lon Duguit
(1859-1928). O ne can try to introduce the opposition o f these
two great jurists with the pithy catchwords: metaphysics versus
positivism, pluralism versus monism, institution versus rgle de
droite''^ But that point itself provides the best way to recognize to
what extent the antitheses o f the liberal nineteenth century have
today becom e obsolete. Th e juristic positivism o f Duguit is thor
oughly o f a metaphysical kind, and the alleged mystic Hauriou is
m ore real, m ore down-to-earth and in this sense by far m ore
positive than a doctrinaire o f principles and pure scientific
positivism.
Hauriou did not start with a legal theory and even less with a
m ethodolog)'. Through forty years o f work, he had observed,
annotated, com m ented on, and in a scholarly way extended the
practice o f French administrative law, particularly the decisions
o f the Conseil d Etat. French administrative law itself has in slow
increments em erged from the practice o f the French StaatsraV,
Hauriotis doctrine o f institutions grew in an actual organic
manner from the observation o f such administrative practice,
and its subject matter is highly appropriate. In the daily firsthand
dealing with its direct object, not through a normativistic-
positivistic way erf squeezing something out o f isolated legal texts,
Hauriou acquired above all a clear jurisprudential view o f the
rgime administratif, fo r exam ple, the living French administra
tive organism. H e regarded this as a unit living according to its
own laws and inner discipline, and distinguished it from the
governm ent as well as from civil justice and the individual ad
ministrative functions found in all states. H e developed his doc
trine o f the institution from this concrete view o f a concrete
order.
As the great German exam ple o f administrative doctrine
(L oren z von Steins) already shows, the concrete jurisprudential
88 O n the Three Types o f J u ris tic T h o u g h t

consideration o f an orderly state administration can best pro


vid e the elements o f a general theory o f institutions : jurisdic
tional authority, hierarchy o f offices, inner autonomy, internal
counterbalancing o f opposing forces and tendencies, inner disci
pline, honor, and official secrets, and with these the all-important
fundamental presupposition, namely a normal stabilized situa
tion, a situation tablie. These becom e tlie elements o f a concept
o f the institution, which are now applied to the most varied struc
tures and features o f a public and private legal kind and make
their jurisprudential realization fruitful. I must here resist giv
ing a detailed lecture on Haurious theory; its various arenas and
modifications are expressions o f continual productive growth
and change, and, as such, also o f great juristic con.scquence.'"
However, it suffices fo r the general outline shown heie that the
mei e restoration o f a concept o f institution overcomes both the
previous normativism as well as decisionism and with it the posi
tivism, wliich is com posed o f both. For the institutional m ode o f
thinking, the state itself is no longer a norm or a system o f norms,
nor a pure sovereign decision, but the institution o f institutions,
in whose order numerous other, in themselves autonomous, insti
tutions find their protection anci their order.
3 The Current Condition of
German Jurisprudence

F o r us Germans, the word insdtuUon has all the disadvan


tages and few o f the advantages o f a foreign word. It can be
tran,slated neither as Einrichtung (estahlishm ent), nor as Anstalt
(institution), nor as organism , although it em bodies som e
thing from each o f these concepts. Th e word Einrichtung is too
general and only permits the factual-external organizational
side to protrude. Anstalt has becom e unusable because in the
nineteenth century it had acquired a political-polem ical mean
ing as a counter-concept against Genossenschaft, which hinds it to
the situation o f the domestic political struggles o f the nine
teenth century. Finally, the word organism is burdened greatly
by the now rather com m onplace antithesis against mechanism.
That foreign Latin word, however, like many other relationships
o f Latin derivation, perhaps unconsciously directs us toward a fix
ation and rigidity. As a result, the coinage institutional think
ing^ became overly identified merely as the hallmark o f a
conservative reaction against normativism, decisionism, and the
positivism o f the last century, which was composed o f both. And
this gave rise to misinterpretations and far-too-many cheap ob
jections. As it happened, Flaurious doctrine o f the institution was
transformed by his disciple G. Renard into neo-Thomism, where
it appears as typical Roman Catholic t h e o r y . I t would indeed
he regrettable if the forcefu l advance toward concrete-order
90 O n the Three Types o f J u ris tic T h o u g h t

and form ation thinking, which captures the jurisprudential


thinking o f nations today, would be im peded by such misunder
standings and constrictions.
Naturally, various nations grapple with their previous think
ing in words, concepts, and form s that are in accordance with
their kind {Art) and their historical tradition. Th at is one o f the
great insights fo r which we are indebted to the National Social
ist movement. For this reason, I would like to propose as a des
ignation fo r the third and current type o f jurisprudential
thinking not institutionalist but rather concrete-order and
form ation thinking."" In this way, we escape the misunder
standings and misinterpretations that attempt to impugn to this
thinking the political propensity o f a m ere restoration o f by
gon e things or a conservation o f superannuated establishments
{Einrichtungen).
T h e extent to which the age o f juristic positivism has en ded is
most clearly recognizable today in Germany. From all sides and
in all areas o f legal life, so-called general clauses surge forward
in a way that wipes out every positivistic certainty : these in
clude indeterm inate concepts o f all kinds, references to extra-
legal critei'ia, and notions such as com m on decency, g o o d faith,
reasonable and unreasonable demands, im portant reason, and
so on. They em body a renunciation o f the foundation o f posi
tivism, namely the detached lawgiving decision em bodied in the
norm ing. Neither legislation nor the administration o f justice
could dispense with them today. In German jurisprudence, they
have been the real theme o f juristic discussions fo r over a year.
Th eir advance and their predom inance have been made out to
be a danger fo r legal certainty and calculability, and we have been
warned against them.'" From the standpoint o f the earlier posi
tivist b elief such warnings and worries are well founded. For that
b elief engendered the idea that only the combination o f legisla
tive decision and rule that forms this positivism guarantees legal
certainty. But with general clauses, the in-itself complete, gapless
law, which is the foundation o f certainty, escapes. On the other
C la ssifica tion o f J u ris tic Ways c f T h in k in g 91

side, however, H. Lange perceived these general clauses as a


vehicle o f natural law, as a carrier o f a new legal thought, as a
breakthrough o f new ideas, as a cu ck oos eg g in the liheral le
gal system, and as a symbol signifying the victory over the
pcrsitivist legal thought that had developed in the nineteenth
century."' As soon as concepts such as g o o d faith, com m on
decency, and so on are not linked to the individualistic, bour
geois, com m ercial sctciety, but to the interests o f the whole
nation, the entire Recht changes in reality without it being nec
essary to change a single positive law. I am therefore o f the
conviction that a new Juristic way o f thinking can be brought
about through these general clauses. Still, they should not be
considered a m ere corrective o f the earlier positivism, but must
be handled as the specific m ethod o f a new type o f Jurispruden
tial thinking.
As such, they are not only relevant to legal guilt in civil law, as
well as in property, family, and inheritance law. H ow far the dis
integration process o f positivism has already progressed today,
and how little possibility there is o f returning to the kind o f
thought that achieved dom ination in the nineteenth century,
becomes most strikingly evident in the two core areas o f liberal
constitutional thinking, in criminal law and tax law. Th e m ethod
o f the seemingly firm, matter-of-fact, de.scriptive abstract con
cept and the ideal o f its matter-of-factness are disintegrating.
R egarding criminal law, these concepts and intellectual founda
tions have been carefully studied recently by Dahm, Schaffstein,
and H enkel."" I am thinking about the new (as perceived
through the old concepts) indefinite facts o f a case, such as
breach o f trust, national and econom ic treason, as well as about
the advance o f so-called normative instead o f descriptive factual
elements." O f even greater systematic bearing is the change in
the relationship o f general and special parts o f the penal code,
as already expressed in the report on a National Socialist crim i
nal law o f fall 1933, developed under the general direction o f
the Prussian Minister o f Justice Kerri."' H ere, the norm ing o f
92 O n the Three Types o f J u ris tic T h o u g h t

crim inal law does not begin with a general part, but with the
specific punishable offense. The detaclim ent o f general con
cepts like guilt, aiding and abetting, and attempt, from con
crete crimes like treason, theft, or arson, appears to us today no
lon ger as a conceptual clarification or as a guarantee o f greater
legal certainty and precision, but m ore as an artificial and non
sensical abstraction tearing apart the natural and actually exist
ing relationships o f life.
Also in tax law, whose definitiveness shares the same funda
m ental significance fo r legal thought, other legal concepts
directly related to econ om ic and social reality replace the
elaborate, seem inglyjuristically firm concepts taken over fro m
civil law. This is, therefore, o f symptomatic significance beyond
the narrower sphere o f tax law, because tax law, analogcxus to
budget law in constitutional life, was a kind o f holy shrine o f
liberal-constitutional positivism. Th e only jurisprudential system
o f tax law to em erge since 1919, that is, since the developm ent o f
Germany as a reparations and taxation state, systematically devel
oped the doctrine o f the matter-of-factness o f the public right
o f taxation deliberately analogfxus to criminal law."" But precisely
in tax law it has above all becom e obvious that a just and mean
ingful regulation cannot be accomplished with the help o f the in
creasingly irrelevant concepts o f a pure positivism. In the Reich
tax code o f Decem ber 13, 1919, the groundbreaking clause o f
paragraph 4 already establishes that in the interpretation o f tax
legislation its purpose, its econom ic significance, and unfolding
circumstances are to be taken into account. With this, cxxllapses
the foundation o f positivist certainty, the autarchy o f the self-
contained, definite contents o f the statute. In the developm ent o f
German sales-tax legislation from the law o f July 26, 1918, to the
additional laws o f May 8, 1926, w4iat had at first gained accep
tance in the tax area, also found a systematic jurisprudential ex
pression. German sales-tax legislation intentionally broke with
the inherited tyjjcs o f legal transactions and contracts conceived
C la ssifica tion o f J u ris tic Ways o f T h in k in g 93

in terms o f commercial civil law; it speaks intentionally not o f


buying, rent, wages, acquisition o f property, but o f delivery, re
muneration, and so on.""
With these new concepts should not be introduced some con
cepts which are even m ore abstract and general than those o f
the contract types. Rather the possibility will be created fo r tak
ing into account the concrete reality o f life relationships in or
der to grasp an econom ic process in a fiscally correct manner.
Th e normativism and positivism o f the old style would here
have been com pletely helpless against the logical unlim ited pos
sibilities o f arbitrary, formalquristic labelling. It would have
m ade the Rechtsstaat in the area o f tax law a laughingstock in the
same way it rendered that possible fo r the bold and imagina
tively endow ed crim inal with the help o f the phrase nulla poena
sine lege in the area o f criminal law."' Prom inent authorities on
our new tax law such as Johannes Popitz and Enno Becker have
recognized this danger and have proceeded with greatest ju
risprudential and m ethodical awareness. They have in this way
protected the new German tax jurisprudence from sinking into
a m ere .science o f tax evasion."" Unlike a legal positivism com
bined o f rules and decision thinking and normativistically dis
engaged from the reality o f life, such concepts directly relate to
the concrete reality o f a life relationship and lead necessarily to
a new type o f thinking that takes into account the existing and
newly maturing orders o f life. In German tax jurisprudence, in
cluding seemingly incidental legislative questions o f taxation,
the intrinsic order-relationship o f the governm ental, social and
vlkisch order o f life and community is im m ediately and directly
visible. Consider, fo r exam ple, the question o f the deduction
fo r the father o f a fam ily and fo r a certain number o f children,
acknowledgem ent o f a certain kind o f living cost and expendi
ture, or the question o f taxing civil servant incomes, and the
computation o f advertising expenses. In each o f their particu
lars, they at once involve concrete orders o f life and institutions
94 O n (he Three Types o f J u ris tic T h o u g h t

such as marriage, family, Stand, and state, and dem and an opin
ion on fundamental principles.*'"
W h ile this disintegration o f positivistic rules and statute
thinking is occurring in the developm ent o f crim inal and tax
law, numerous new orders have em erged in other areas o f pub
lic law, which com pletely shun the nineteenth-century way o f
thinking. Th e new constitutional and administrative law has re
alized the leadership principle and with it concepts like loyalty,
followers, discipline, and hon or that could only be under
stood in terms o f a concrete order and Gemeinschaft/'' Political
unity is form ed by the tripartite order state, m ovem ent, p eo
ple. T h e construction o stndischen Einrichtungen (institutions)
will even m ore fo rcefu lly realize the idea o f the inseparable
connection o f leadership, discipline, and honcxr and thereby
overcom e a norm ativism erected on the earlier principle o f
separation o f powers. W ithin a .stanch'icA-organized Volk, a ma
jo rity o f cxrders always governs, each o f whom must form fo r it
self the jurisdiction cjf its tw n Stand so many Stnde, so many
benches. *
However, the National Socialist lawgiver has expressed most
clearly the new ord er thinking in its Law fo r the Organization
o f National La b or o f January 20, 1934. I f one recalls the above-
m entioned (p. 81) failed attempt in labor law to overcom e the
private contractual notion with the help o f the concept o f agree
ment, at least fo r the area o f wage agreements, then this new
law fo r the ord er o f national labor appears as a forceful step.
With one stroke it leaves behind an entire world o f individualis
tic thinking o f contractual and legal relationships. Th at law
speaks intentionally no lon ger o f employers and employees;
in the place o f wage agreements steps a wage order. Entrepre
neurs, employees, and workers are leaders and followers {Eiihrer
und Gefolgschaft) o f a firm , working together fo r the advance
m ent o f the firm s aims and fo r the com m on g o o d o f Volk and
state; botfi appear as members o f a com m on order, a com m u
nity with a public-legal character. The Social H o n o r Court is a
C la s s ijic a lio n o f f u r i s t k Ways o f T h in k in g 95

logical application of' order thinking, which presents loyalty, fo l


lowers, discipline, and honor, no lon ger as functions o f de
tached rules and norms, hut as essential elements o f a new
community and its concrete order and form ation o f life
Conclusion

O n l y after this short summary overview o f the present condi


tion o f German Jurisprudence can we recognize the deep and
decisive significance o f the new concept o f jurists that the Na
tional Socialist m ovem ent has introduced into Germany. Th e
.dnrfhcA concentration o f German jurists in the German Legal
Front has laid the foundation o f its organization on a concept
o f the jurist who rises ahove and overcom es the earlier positivis
tic tearing apart o f law and economy, law and society, law and
politics. Every (ierm an Volksgenosse, who in his professional work
deals with the application or im provem ent o f German law in
public life, state, econom y, or self-administration, and who in
such a m anner is rooted in German legal life, should pay atten
tion to the new stndisch image o f the German jurist. Th e Na
tional Socialist League o f German Jurists is based upon these
new concepts o f Recht, jurist, and Rechtsstand, as is that part o f
the National Socialist m ovem ent concerned in a special sense
with German Law, such as the Academ y o f German Law founded
in the fall o f 1933. T h e leader o f the German Legal Front and
founder and president o f the Academ y o f German Law, Reich
Minister o f Justice, Dr. Hans Frank, has perceived the task o f Ger
man jurists to he above all a Sachgestaltun^"^'^ that conforms to
the German spirit.' In this word coined hy him is pregnantly
98 O n the Three Types o f J u ris tic T h o u g h t

inanifesled the essential course o f the new order and form ation
thinking^
To the traditional positivist type o f thinker, the undeniable
advance o f the new juristic way o f thinking appears, o f course,
only as a corrective to his old m ethod, like the earlier Free-Law
M ovem ents similar loosening o f rigidity as a m ere adjustment
to a new condition fo r the purpose o f continuing and preserv
ing the previous type. But the change in the jurisprudential way
o f thinking is today linked with a change in the entire fram e
work o f the state. A ll transformations o f a juristic type o f think
ing stand, as was shown ahove, in the great historical and
systematic relationship that the m om entary situation o f the po
litical life o f the community places them. Th e decisionism o f
Hobhes in the seventeenth century belongs to the age o f perva
sive princely absolutism, and the rational-law normativism to
the eighteenth centtiry. So too, the combination o f decisionism
and normativism, which since the nineteenth century rep re
sents the dom inance o f legal positivism, is explained in terms o f
a specific dualistic relationship o f state and civil society, and by
the dualistic structure o f the political unit o f that time, which,
in a disintegrating state and society, alternated between the
state-of-exception and legality. As soon as this dualistic struc
ture o f state and state-free society ceases, the jurisprudential
type o f thinking belon gin g to it must also collapse.
Th e state o f the present is no lon ger a dualistic one separated
into state and society, but one built upon the tripartite order o f
state, movement, people. T h e state, as a special part o f the or
der within the political unit, no longer has a m onopoly on the
political, but is only one organ o f the Fhrer o i the movement.
T h e previous decisionistic or normativistic or positivistic legal
thinking com bined o f both is no lon ger adequate fo r a political
unit constructed in this way. Now a concrete order and form a
tion thinking is required that will measure up to the numerous
new tasks o f the governm ental, vlkisch, econom ic, and id e o lo g
ical conditions and to the new form o f community. T h erefore,
C o n c lu s io n 99

em bodied in every advance o f a new jurisprudential way o f


thinking is not a m ere corrective to the previous positivistic
m ethod, but a transition to a new type o f jurisprudential think
ing, which would be able to do justice to the em erging com m u
nities, orders, and form ations o f a new century.
^ Notes

1. [T r .] Sch m itt is u sin g the term G e s ta ltu n g h e re . to c h a ra c te riz e a

type o f la w that is in the co n tin u a l process o f fo rm a tio n . S ee S ch w ab, The

C hallenge o f the E x cep tion : A n In tro d u ctio n to the P o litic a l Ideas o f C a rl Schm itt

between 1921 a n d 1936, 2 n d ed . (N e w Y o rk & L o n d o n , 1 989), 120-121.

2. [T r .] K arl F r ie d ric h v o n S av ign y (1 7 7 9 -1 8 6 1 ) was the le a d in g


rep re se n tativ e o f the co n serv a tiv e -ro m an tic H is to ric a l S c h o o l o f L a w

in the ea rly n in e te e n th century. O p p o s in g the n o tio n o f law as a c re


atio n o f h u m a n re a so n , su c h th in k e rs h e ld that laws a n d le g a l institu

tions w e re a n a tu ra l e v o lv in g o u tg ro w th o f the Volksgeist (n a t io n a l spirit

o f a p e o p l e ) as e x p re s s e d in historical cu stom s.

.3. [T r .] T h e N azis f o u n d this c o n flic t b e t w e e n R o m a n law a n d an


o r ig in a l, m o r e g e n u in e fo r m o f G e r m a n la w su fficie n tly im p o rta n t as a

p r o b le m to a d d re s s it a lre a d y in th eir 1920 P arty P r o g r a m . S ee p o in t

19: W e d e m a n d that R o m a n Law , w h ic h serves a m aterialistic w o rld


o rd e r, b e r e p la c e d by a G e r m a n c o m m o n law . J. N o a k e s , arid G . P rid -

h a m , ed s., N a z ism , 1 9 1 9 -1 9 4 5 : A H is to ry in D o c u m e n ts a n d Eyewitness


/IrcoMwri ( N e w Y o rk , 1 9 8 4 ), 1: 15.

4. [T r.] Rechtsstaat is o n e o f those G e r m a n term s best left in the o r ig

in a l b e c a u s e o f the vario us c o n n o ta tio n s it has d e p e n d i n g u p o n the his

torical, id e o lo g ic a l, a n d p o litic al contexts in w h ic h writers, especially

p o litic al a n d le g a l theorists, have u sed it o v e r the past tw o centuries. In


its m o st basic fo r m , a Rechtsstaat im p lies a type o f constitution al state

that gu a ra n te e s fu n d a m e n t a l civil lib erties o f sp ee ch , press, relig io n ,


102 Notes

eq u a lity b e f o r e the law, a n d so o n . It also u su ally involves a type o f g o v

e r n m e n t b a s e d u p o n the c o n sen t o f the g o v e r n e d a n d the s e p a ra tio n o f

p o w e r s as a m e a n s o f p ro te c tio n against a rb itra ry o r o p p ressive g o v e r n

m en t. A s an o u tg ro w th o f the n a tu ra l-law th e o ry o f the eig h tee n th -


ce n tu ry E n ligh ten m e n t, the prin c ip les o f the R echtsstaats'iere c o n s id e re d

p a rt o f u n iversal a n d e te rn a l laws o f re a so n , e x e rc is in g the authority o f

a b s o lu te m o r a l truth. T h e ea rly G e r m a n e x p o n e n t o f the Rechtsstaal


w as the e m in e n t G e r m a n p h ilo s o p h e r I m m a n u e l K an t (1 7 2 4 -1 8 0 4 ).

D e sp ite v a ry in g in terpretatio n s, c h a n g in g po litical alig n m e n ts, a n d


c o m p r o m is e s w ith o th e r po litical cu rren ts a n d the p o w e r o f the P ru ss

ian State, a n d th en the u n ifie d G e r m a n H eich o f 1871, the Rechtsslaat

r e m a in e d a ch erish p o litic al g o a l o f G e r m a n lib e ra lism since the e ig h


teenth century.
.5. E d itio n o f the S to ik e r-F ra g m e n ts b y H . V . A r n iin (1 9 0 5 ), 3: 314.

6. S o re a d s the d e fin it io n o f Rechtsstaat by G . A n s c h tz , Deutsches

Staatsrecht, in the E n cy clop ed ia o f H o lt z e n d o r f f- K o h le r (1 9 0 4 ) V o l. 2,

p. 593: a state, w h ic h is sy m b o liz ed c o m p le te ly by Recht, w h o se s u p re m e

w ill is n o t R ex b u t Lex\ a c o m m o n w e a lt h w h e r e the re la tio n s h ip s o f in

d iv id u a ls n o t o n ly lo e a c h o th e r b u t abo\ c all to the s u p r e m e p o w e r


a r e d e t e r m in e d b y le g a l m a x im s, w 'h ere t h e r e fo r e g o v e r n in g a n d b e
in g g o v e r n e d p r o c e e d a c c o r d in g to Recht a n d n o t a c c o r d in g lo the tel

est notre p la is ir o f the g o v e r n in g p e rs o n s . . . . T h e le g a l o r d e r s h o u ld

also b e a p p lie d to the c r o w n as o p p o s e d to a b s o lu tis m (v o n M a rtitz );

law a p p e a rs as a p o w e r, w h ic h is likew ise set a b o v e the w ill o f the g o v

e r n e d as w e ll as the g o v e r n in g p e r s o n . T h is p o sitio n is a l the sam e


tim e a typical e x a m p le o f the positivist id en tific a tio n o f R ech t a n d

statute (w h e r e b y statute u ltim ately b e c o m e s decisio n istically a p u r e

m ajority d e c isio n o f p a rlia m e n t).

7. [T r .] T h e term N o m o s o r ig in a t e d w ith the classical G r e e k s as a


key c o n c e p t in th eir p h ilo s o p h y a n d le ft a le gac y in w estern p h ilo s o p h y

ge n e ra lly . F o r the classical G re e k s, N o m o s m e a n t s o m e th in g b e lie v e d

in, p ra c tic e d o r h e ld to b e right. . . . [w h ic h ] p r e s u p p o s e s an a c tin g


su b ject b elie v er, practitio n er, o r a p p o r lio n e r a m in d fr o m w h ic h

the N o m o s em a n a te s. N a tu r a lly t h e re fo r e d iffe r e n t p e o p le h a d d i f f e r

ent N o m o i, bu t, so lo n g as r e lig io n r e m a in e d an e ffe ctive fo r c e , the d e


v is in g m in d c o u ld b e the g o d s, a n d so th e re c o u ld b e N o m o i that w e re
N otes 103

a p p lic a b le to all m a n k in d . O n N om os, e sp e cially as it p e r t a in e d to the


o rig in s o f law, see: W .K .C . G u th rie , T h e Sophists (C a m b r i d g e , 1 9 7 1 ),

,55-133. Sch m itt la te r u se d this c o n c e p t as the fr a m e w o r k f o r o n e o f

his m a jo r w orks. S ee D e r N o m o s der Erde im Vlkerrecht des Jus P u b lic u m


Eu ropa eu rn, 2 n d e d . (B e r lin , 1974).

8. T h e so -ca lle d V ie n n a S c h o o l le d b y H . K e lse n h a d c h a m p io n e d

w ith p a rt ic u la r p u rity the ex c lu siv e claim to d o m in a t io n by an a b


stract n o rm ativ ism d u r i n g the p e r io d 1 9 1 9 -1 9 3 2 .

9. S ee as an e x a m p le fr o m the last G e r m a n c e n tu ry the o n e in the

p re v io u s a n n o ta tio n to the d e fin itio n o f Rechtsstaat b y G . A n s c h tz .

10. [T r.] F rie d ric h H ld e r li n (1 7 7 0 -1 8 4 3 ) w as a d is tin g u ish e d G e r


m a n ro m a n tic p o e t w h o s e w o rk s u n d e r w e n t a ren aissan ce in the tw e n
tieth century. H is artistic w o rk e m b o d ie d id e a liz e d visions o f the

an cien t G r e e k h a r m o n y o f b o d y a n d m in d .

11. N . V. H e llin g r a t h , L . V. P ig e n o t , a n d F. S eebass, eds., C ollected


W orks (B e r lin , 1 9 2 3 ), 6: 9.

12. [T r .] F o r a h ig h ly su ggestiv e analysis o f S ch m itts o p p o sitio n in

his W e im a r w ritin gs to lib e r a lis m s attem p t to a p p ly the p a r a d ig m o f

th e n e u tr a liz in g f o r c e o f m o d e r n t e c h n o lo g )' to politics, see J o h n P.

M c C o r m ic k , C a rl S ch m itt s C ritiq u e o f L ib e ra lis m : A g a in s t P o litic s as Tech


nology (C a m b r id g e , U K , 1 9 9 7 ). M u c h m o r e q u e s t io n a b le , how ever, is

M c C o r m i c k s g e n e r a l in te rp re ta tio n o f S ch m itt as a fascist t h in k e r a n d

his claim that Sch m itt is the p r o g e n it o r o f all the m a jo r c o m p o n e n t s


o f c o n t e m p o r a ry A m e r ic a n co n se rv a tism (p . 3 0 4 ).

13. [T r .] S ee K a rl B in d in g , D ie N o rm e n u n d ihre b ertretu n g (1 8 7 2 -


19 20 ) 4 vols.

14. U n e n ou v e lle mysticpie: la n o tio n d in s titu tio n ; R evu e gnrale d u D ro it,

de la L g is la tio n et de la J urisp ru d en ce, 1 9 3 1 -1 9 3 2 . T h e article b y B o n -


n e c a se co n tain s in o th e r respects e x c e lle n t m ate ria l a n d re m a in s v a lu

a b le a n d w o rth r e a d in g . M o r e o n H a u r io u fo llo w s b e lo w u n d e r section


11 2 o f this w o rk .

15. F r e ih e r r M a rs c h a ll v o n B ie b e rs te in , Vercm tw ortlirhkeit u n d Cegen-

z e ic h n u n g bei A n o rd n u n g e n des Obersten K riegsherrn, (B e r lin , 1911), 392,


speak s (critic ally ) o f the a d v a n c in g v ie w p o in ts that, in the victo rio u s

t r iu m p h o f the Rechtsstaat, w an t to d e s ig n a te ev e ry o r g a n o f the state,

n o m atter o n w h ic h r u n g o f the la d d er, likew ise as the d e fe n d e r o f the


104 Notes

le g a l o r d e r . O i t o M a ye r, Deutsches VerwaUungsrechl, 2 n d e d . (M u n i c h

a n d L e ip z ig , 1 9 1 7 ), 2: 324, states: T h e id e a o f the co n stitu tio n al a n d

Rechtsstaat allow s e v e ry th in g to a p p e a r a c c e p t a b le that c o u ld serve to

s e c u re R echt a n d law a g a in s t a b u s e b y the au thorities. . . . T h u s arises a


secu rity o f law, as it c o u ld n o t have b e e n b e tte r c o n c e iv e d : e a c h o ffic ia l

is n o w d e s ig n a t e d as this d e f e n d e r in re la tio n to his s u p e r io r . O n e


h a d .soon o b s e rv e d that this k in d o f ex c lu siv e d o m in a t io n b y the la w

reve rses the c o n c re te o r d e r o f the b u r e a u c ra t ic h ie ra r c h y a n d pla ce s it

o n its h e a d . H o w e v e r, it c o u ld o n ly b e r e fu t e d o n g r o u n d s o f p ra c tic a l

ity, n o t in term s of ju r is t ic a n d c o n s titu tio n a l n o rm ativ ism .

16. C o n c e rn in g the d e stru c tio n of the concept of le a d e r s h ip

t h r o u g h the n o rm a tiv ism o f the c o n c e p t o f su p e rv isio n : C a r l Schm itt,


Staat, B ew egung, Volk: dw D re ig lie d e ru n g der p o litis ch e n E in h e it (H a m b u r g ,

19.33), 36.

17. T h e p lu ralistic party-state o f the W e im a r co n stitu tion w as th e re

fo r e a R e ich o f lim itless c o m p a tib ilitie s . A ft e r the du alistic c o n s tru c


tion o f the stale a n d state-free civil society h a d b e c o m e p r o b le m a tic a l

in lib e r a l-d e m o c r a t ic stales, w h ic h r e c o g n iz e p a rlia m e n ta r y in c o m p a t

ibilities f o r b u r e a u c ra t s , th e re arises tod ay the q u e stio n (in su c h a state


u n s o lv a b le ) o f s o -c a lle d e c o n o m ic in c o m p a tib ilities. R e g a r d in g this,

see the m e a n in g fu l dissertatio n at the H a n d e ls -H o c h s c h u le , B e r lin , by

R u th B ttn e r (B e r lin , 1933).

18. Santi R o m a n o , L o r d in a m e n to g iu r id ic o (P isa , 1 918), 17.


19. [T r .] T e rtu llia n (ca. 1 6 0 -2 2 0 A .n .) w as an early C h ristia n w rite r

w h o w o rk e d o u t the le g a l d o c trin e s o f Christianity, e sp e cially as they

r e la t e d to the O l d T estam ent.

20. [T r .] G o d is u n fe t t e r e d fr o m law. H e h im s e lf is L a w u n to H i m

self, the u ltim ate A u th o rity .

21. G . B ey erh a u s, S tu d ien z u r S ta a tsa n sch a u u n g C a lvin s, m it besonderer


B e r c k s ic h tig u n g seines S ou ver n it tsb eg )iffs (B e r lin , 1 9 1 0 ), p r o v id e s

p r o o f s that fo r C a lv in , G o d is also m aster o v e r the m d o n a tu ra e u n d the


ju s natu ra e. T h e in flu e n c e o f C a lv in o n the c o n c e p t o f state sovereign ty

is d e a lt w ith in the M a r b u r g d issertation o f K a rl B u d d e b e r g (1 9 3 3 ),

w h ic h co n ta in s an in fo r m a t iv e c h a p t e r o n p o litic al th e o lo g y .

22. [T r .] O n e o f the g re a t e x p o n e n ts o f the th e o ry o f state sove r


eignly, J e a n B o d in (1 5 3 0 -1 .5 9 6 ) w as a piv o tal fig u r e in d e t a c h in g law
N otes 105

p h ilo s o p h ic a lly fr o m its m e d ie v a l re lig io u s fo u n d a t io n s . H e e x e ic is e d

a g r e a t d e a l o f in flu e n c e u p o n Schm itt, w h o c o n s id e r e d h im o n e o f

the f o u n d i n g fa th ers o f ju r is p r u d e n c e .
23. [T r.] M u c h o f S ch m itts o w n w o rk h a d b e e n sig n ific an tly in flu

e n c e d b y H o b b e s . A lt h o u g h in O n the Three Types o f J u ristic T h ou g h t,


Sch m itt r e p u d ia t e d his e a r lie r d e c isio n ism , w h ic h h a d d r a w n h eavily
o n H o b b e s , h e h a d n o t actu ally a b a n d o n e d that think er. A ft e r b e i n g

r e b u k e d by the N a z is in 1936, Schm itt, in fact, r e t u r n e d to his stu dy o f


H o b b e s . See C a rl Schm itt, D e r Staat als M e c h a n is m u s b e i H o b b e s

u n d D e sc artes, A r c h iv f r Rechts- u n d Sozialphilosophie (1 9 3 6 -3 7 ), 30:

6 2 2 -6 3 2 ; a n d D e r L e v ia th a n in der Staatslehre des T h onu is Hobbes: S in n u n d


F ehlsch la g eines p olitisch en Sym boles (H a m b u r g , 1 9 3 8 ). O n the r e la tio n
s h ip b e t w e e n the th in k in g a n d w o ik o f these tw o theorists, see H e h n u t

R u m p f, C a rl S ch m itt u n d Thom,as Hobbes: Ideelle B eziehungen u n d aktuelle

B e d e u tu n g m it ein e r A b h a n d lu n g ber: D ie F r s ch rifte n C a rl Schm itts

(B e r lin , 1 9 7 2 ); a n d G e r s h o n W e ile r, F ro m A b solu tism to T o ta lita ria n is m :

C a rl S ch m itt on T h om a s Hobbes (D u r a n g o , C o lo ., 1 9 94 ). F o r insights into


S ch m itts w ritin gs o n H o b h e s in the p r o p e r h isto rica l co n te xt o f N a z i
G e rm a n y , see G e o r g e S c h w a b s in tro d u c tio n to his re c e n t translation

o f T h e L e v ia th a n in the State Theory o f T h om a s Hobbes: M e a n in g a n d F a il

u re o f a P o litic a l Sym bol (W e s t p o r t , C o n n ., 1 996).

24. L e v ia th a n , C h a p . 26, p. 133, o f the L a tin ed itio n o f 1670; p. 143

o f th e E n g lis h e d itio n o f 1651. I n C h a p . 26 also sta n d the c le a r p as

sages a b o u t in te rp re ta tio n ( i n q u a sola consistit L e gisE ssen tia l), a b o u t the


in c a lc u la b le po.ssibilities a n d u n certainty o f ev e ry in te rp re ta tio n , a n d
a b o u t the s o v e re ig n as the s o le in terp re te r, w h o t h r o u g h his s o v e re ig n

d e c isio n puts an e n d to the m a z e o f o p in io n s, lik e as it is c a lle d in the

E n g lish ed itio n o f the L e v ia th a n ^A lexander the G r e a t cu ttin g th ro u g h

the G o rd ia n K n o t; a typ ical d e c isio n istic im a g e . T h e c o n c lu d in g

C h a p . 27 co n ta in s the first m o d e r n es ta b lis h m e n t o f the p h ra s e n u lla


p oen a sine lege.

25. On the distin ction betw een a u ctorita s a n d potestas see C a rl

Schm itt, D e r H t e r d er V erfassung ( \ 9 5 l ) , 136.


26. [T r .] M a n is w o lf to m a n . T h is pessim istic H o b b e s ia n v ie w o f

h u m a n life a n d c o n flic t was sh a re d hy Schm itt, w h o w ro te that all g e n

u in e p o litic al th eories p resix p p o se m a n to b e evil, that is, by n o m ea n s


106 Notes

a n u n p r o b le m a t ic b u t a d a n g e r o u s a n d d y n a m ic b e in g . Sch m itt also


o fte n in v o k e d the H o b b e s ia n p h ra se bellum o m n iu m con tra nomties. S ee

C a rl Schm itt, T h e C oncept o f the P o litica l, trans. G e o r g e S c h w a b , 2 n d ed .

(C h ic a g o , 1 9 96 ), 61.
27. J. B o n n e c a s e , L cole de Texgse (P a ris , 1 9 2 4 ).

28. [T r .] lnteressen ju rispru den z w as the p re-1 9 3 3 s c h o o l o f le g a l

th o u g h t that c la im e d to b e p h ilo s o p h y f r e e a n d n e u tra l to w a rd all


id e o lo g ic a l o rie n tatio n s. Its m a jo r rep re se n tativ e, P h ilip p H e c k , ar

g u e d that the j u d g e w as the servan t n o t th e m aster o f the law. It w as

the du ty o f the j u d g e to asce rta in a n d fo llo w the inten t o f the la w g iv e r

a n d n o t to in q u ir e into the justness o f the law. A c c o r d in g to R th ers,


this id e o lo g ic a l a n d v a lu e -n e u tra l le g a l m e t h o d w as an in s tru m e n t p e r

fe c tly su ited lo the n e w N a z i-s t a ie s e i f o i t s to m a n ip u la t e th e le g a l

system to estab lish its a u th o rita ria n F h rersta a t. N o n e th e le s s , its id e o

lo g ic a l neu trality w as attack ed by Vlkisch le g a l theorists lik e K arl

L a r e n z p rec ise ly b e c a u s e they b e lie v e d all aspects o f life a n d c u ltu re ,


p a rtic u la rly law, m u st m a n ife st the ra c ia l id e o lo g y ' o f N a tio n a l S o c ial

ism. S e e B e r n d R th ers, Entartetes R echt: Rechtslehren u n d K ro n ju ris te n im

D ritte n R eich (M u n ic h , 1 9 8 8 ), 3 6 -4 1 .
29. T h e m o st ra d ic a l re p re se n tativ e o f positivist le g a l certainty is J e

re m y B e n th a m ; the classical sta n d o n the e x p e c t a tio n as the f o u n d a

tion o f le g a l certainty is f o u n d in Jo h n B o w r i n g s ed itio n o f B e n t h a m s


w o rk s ( E d i n b u r g h , 1 8 43 ), 2: 299, 307, 311. A ls o the fo r m u la ju s tic e

t h r o u g h posith'ity o f E ric h J u n g , D a s Prob lem des n a t rlich en Rechts


(1 9 1 2 ), establish es the claim o f le g a l certainty o n the e x p e c ta tio n o f

the le g a l co m m u n ity. In A llg em ein e Staatslehre, 3 rd e d ., 369, G e o r g

Jellinek also speaks a b o u t the assurance o f b e in g su b ject to the law, the

e x p e c ta tio n a n d the trust in in v io la b le ad m in istration ; o n trust,


see f o r e x a m p le . M a x R m e lin , Rechtssicherheit (1 9 2 4 ), 6.

30. T h e r e a r e d e p e n d i n g o n the activity that the state has as its f o

cal p o in t a n d speak s as its fin a l w o r d legislative, c a b in e t o i a d m in is

trative, a n d ju r is d ic tio n a l states. T h is d istin ction is d e v e lo p e d in m y


treatises, D e r H t e r d e r V erfassung (T b i n g e n , 1 9 31 ), 76 a n d L e g a lit t

u n d L e g itim it t (M u n i c h , 1 9 3 2 ), 7 -1 9 . S ee in p a rtic u la r p. 8: A le g isla

tive state is a p o litic al system g o v e r n e d by im p e r s o n a l, t h e r e fo r e g e n


era l, a n d p r e d e t e r jiiin e d n o r m s that a re c o n s id e r e d f o r the d u r a t io n
N otes 107

to h a ve m e a s u r a b le a n d d e t e r m in a b le content, in w h ic h la w a n d the

e x e c u tio n o f la w a re s e p a ra t e d fr o m e a c h o th e r. T h a t is lik ew ise a d e f

in ition o f w h a t w as p re v io u sly c a lle d the Rechtsstaat. In the treatise by


H. H e n k e l, S tra frich ter u n d Gesetz irn neuen Staat (H a m b u r g , 1 9 3 4 ), the

h istorical a n d systematic c o n n e c tio n o f the p h ra se N u U a poen a sine lege


with the legality system o f such a legislative state, as w ell as with the p r e

viously m e n tio n e d interest in le g a l certainty, is d e m o n stra te d w ith p e r

fect clarity.

31. [T r .] A n early u tilitarian B ritish p h ilo s o p h e r , J e re m y B etith am


(1 7 4 8 -1 8 4 2 ), was d e t e r m in e d to d e v e lo p an o b je c tiv e scien ce o f h u

m a n b e h a v io r a n d an e m p ir ic a l ju r is p r u d e n c e m o d e le d o n the e x p e r

im e n ta l m e t h o d . A ls o o f im p o rt a n c e f o r S ch m itt w as that B e n t h a m
r e m a in e d a relen tless critic o f c o m m o n law.

32. W it h this m a n n e r o f p r o c e e d i n g th e re is n o security, as cited o n


p. 32.5.

33. S ee the s p e e c h N a tio n a l S ocialism a n d Rechtsstaat Juristische

W och en sch rift (M a r c h 24, 1 933), 713.

33. A llg em ein e Slaalslehre, 3 r d e d ., 341, 360, 371 (th e first e d itio n a p
p e a r e d in 1 9 0 0 ); the b asic n o rm ativ ist thesis is p r e s e n te d o n p. 355:

A ll R echt is n o rm a tiv e ju d g m e n t a n d t h e re fo r e n e v e r c o in c id e s with

the circu m stan c es to b e j u d g e d by it. M o r e o v e r , d e sp ite this n o r m a

tive p o w e r o f the fa c t u a l, politics [s h o u ld r e m a in ] e x c lu d e d fr o m the


aUgem einen Staatslehre (p . 2 3 ). P o w e r a n d R echt a re n o rrn atively o p

p o s e d , the states righ t o f necessity as an expre.ssion o f the p h ra se


m ig h t p r e c e d e s r ig h t is re je c te d , b u t co n stitu tion al g a p s c o u ld b e

positively fille d t h r o u g h fa c t u a l p o w e r re la tio n s h ip s (p . 3 5 9 ).

35. P ositivism us u n d re a le A u s s e n w e lt, le c tu re d e liv e r e d o n N o


v e m b e r 12, 1930, at the K aiser-W ilh e lm -S o c ie ty , B e r lin a n d L e ip z ig ,
1931, p. 11. [T r .] M a x P la n c k (1 8 5 8 -1 9 4 7 ) w as a p io n e e r in q u a n t u m

physics w h o s e th e o ries, in c o n ju n c tio n w ith th ose o f N ie ls B o h r a n d A l

b e r t E in stein , s h o o k the fo u n d a t io n s o f the n in e te e n th -c e n tu ry n a tu


ral scien ces a ft e r w h ic h the positivist social scientists a n d ju rists h a d

m o d e le d them selves.

36. [T r.] A lt h o u g h literally translated as 'i v e e A l o i U m g freischwehende

is som etim es also r e a d as u n a tta c h e d in the co n text o f an intelligentsia


that is u nattiiched to an y social cla.ss. S ee K arl M a n n h e im (1 8 9 3 -1 9 4 7 ),
108 Notes

Ideology a n d U tojn a ( L o n d o n , 1 9 36 ); a n d H . Stuart H u g h e s , Consciousness

a n d Society: The R eorien ta tion o f Fruropean S ocia l T h ou g h t, 1 8 9 0 -1 9 3 0 (N e w

York, 1 9 58 ), 4 1 8 -4 2 7 .
37. W e im a r issue 391, p. 10
38. [T r .] S a m u e l P u f e n d o r f (1 6 3 2 -1 6 9 4 ) m a r k e d a t u rn in g p o in t in

le g a l h isto ry a n d is o ft e n c o n s id e r e d the first m o d e r n ju rist. H e o f

fe r e d a c o m p r e h e n s iv e system o f n a t u r a l la w that in c lu d e d in te rn a
tio n al law. S ee C a r l j. F rie d ric h , T h e P h ilosop h y o f l.a w in H is to r ic a l

Perspective (C h ic a g o , 1 9 5 8 ), 1 1 2 -1 2 1 .
39. P a rtic u la rly ch aracteristic is the d e riv a tio n o f the authority o f f a

t h e r a n d m o t h e r fr o m a n a tu ra l-la w n o r m o f s o c ia b ility a n d fr o m the

p r e s u m e d ra tio n a l c o n s e n t o f c h ild r e n ; de J u re N a tu r a e et G en tiu m , B o o k


6, C h a p . 2, par. 4 . 1 a m in d e b t e d lo university le c t u re r D r. R u d o lf C r a e -
m e r in K n ig s b e r g f o r r e c o g n iz in g the s tr o n g fu n d a m e n t a l L u t h e r a n -

o r t h o d o x e le m e n ts that still exist in the c h a ra c te r as w ell as the


th e o rie s o f P u fe n d o r f . T h is m ak e s his th e o re tic a l le g a l c o n s tru c tio n o f

m a r r ia g e a n d fa m ily e v e n m o r e a s to u n d in g .

40. M eta p hy sik der Sitten, Rechtslehre, par. 23.

41. [T r .] A n illu m in a tin g e x p la n a t io n o f the attack by W e im a r c o n

servative in tellec tu a ls o n the lib e r a l Id e a s o f 1789 a n d the e m b r a c e -


m e n t a n d articu la tio n by co n serv a tiv e re v o lu tio n a rie s o f the so -c a lle d

Id e a s o f 1 914, w h ic h w e r e s u p p o s e d ly m o r e in lim e with G e r m a n


K u ltu r , is c o n ta in e d in K le m e n s v o n K le m p e r e r , G e rm a n y s N ew C onser

va tis m : Its H is tory a n d D ile m m a in the Tw entieth C entury (P r in c e t o n ,

1 9 68 ), 25, 4 7 -6 9 .
42. [T r .] O n e o f G e r m a n y s greatest p h ilo s o p h e r s , J o h a n n G o t t lie b

F ichte (1 7 6 2 -1 8 1 4 ), p la y e d a sig n ific an t r o le in the d e v e lo p m e n t o f

the th e o ry o f the state. D u r i n g the N a p o l e o n i c o c c u p a tio n o f G e r


m any, Fichte b e c a m e a fie ry ea rly ad v o c ate f o r the estab lish m e n t o f a
G e r m a n national-state. S ee F r ie d ric h M e in e c k e , C osm op olita n ism a n d

the N a tio n a l State, Iran s. R o b e r t B. K im b e r (P r in c e t o n , 1 9 7 0 ), 7 1 -9 4 .

4.3. S ee e sp e cially the p la c e in his le c tu re s Staatslehre W e r k 4,

(S u m m e r 1 813); 409; A g r o u p o f p e o p le w ith a c o m m o n ly d e v e lo p e d

h isto ry w h o a re u n ite d in e r e c t in g a R eich, a re c a lle d a Volk. T h e ir in d e

p e n d e n c e a n d f r e e d o m coirsists in the e le v a tin g p a th to w a rd d e v e lo p


in g them selves into a Reich. T h e p e o p l e s fr e e d o m a n d in d e p e n d e n c e
N otes 109

is assau lted i f the p a th o f this d e v e lo p m e n t is in t e r r u p t e d t h r o u g h

s o m e o th e r fo r c e , if it is in c o r p o r a t e d by o th e rs striv in g to d e v e lo p

th e m se lves in to a Reich o r p e r h a p s to w a rd th e d e stru c tio n o f eve ry


R eich a n d Recht. . . . T h e n a re a l w a r is n o t a m o n g the r u lin g fa m ilie s

b u t a m o n g p e o p le s , w h o s e g e n e r a l f r e e d o m a n d that o f e v e r y o n e is

e s p e c ia lly t h re a te n e d ; w ith o u t it h e has n o d e sire to live, w ith o u t it he


ad m its a k in d o f w orth lessn ess. T h e s tr u g g le f o r life a n d d e a t h is then

g iv e n o v e r to e v e ry o n e p e rs o n a lly w ith o u t re p r e s e n t a t io n .

44. In tro d u c tio n to Ph ilosofrh ie d er M y th ologie, ed itio n o f M a n fr e d


S c h r t e r (M u n ic h , 1928). V o l. 11.

4.5. [T r.] Sch m itt w o u ld e n c o u n te r d ifficu lties w ith the N a z is o v er

w h e t h e r the T h ir d R e ic h w as a Rechtsstaat. H e o rig in a lly c o n c lu d e d that


the H it le r r e g im e , th o u g h a ju s t state, c o u ld n o lo n g e r b e c o n s id e r e d

a Rechtsstaat in the trad itio n al sense o f the term . H o w e v e r, h e s o o n a d


ju s t e d his in terp re ta tio n to a c c o m m o d a t e the N a z i insistence that the

n e w o r d e r was, in d e e d , a Rechtsstaat. S ee C a rl Schm itt, N a tio n a lso z ia l


ism us u n d Rechtsstaat, Deutsche V e rw cd tu n g W (1 9 3 4 ): 8 5 -9 2 ; W a s b e

d e u te t d e r Streit u m den Rechtsstaat? Ze itsch rift f r die gesamte


Staatswissenschaft, B d . 95 (1 9 3 5 ), 1 8 9 -2 0 1 . S ee also H a n s F ran k , D e r

d e u tsch e Rechtsstaat A d o l f H itle rs, Deutsches Recht 6 (1 9 3 4 ), 121.

46. [T r .] O t t o v o n G ie r k e (1 8 4 4 -1 9 2 1 ) w as p e r h a p s the hest r e p r e

sentative o f the G e r m a n h is to ric a l s c h o o l o f law a n d a p io n e e r in the

fie ld o f G e r m a n i c le g a l history. A m o n g h is c o r e id e a s w e r e th a t la w

d e riv e s fr o m the p e o p l e a n d that a u n iq u e c o n c e p t o f G e r m a n la w


ex isted in d e p e n d e n t o f R o m a n law ; m o re o v e r, this G e r m a n law, h e a r
g u e d , was n e v e r rea lly e lim in a t e d by the re c e p tio n o f R o m a n la w in

G e rm a n y . G ie r k e e x e rc is e d a g r e a t d e a l o f in flu e n c e o n his s tu d e n t

H u g o P reu ss, w h o b e c a m e the fa t h e r o f the W e im a r co n stitu tion .

P re u ss essen tially r e o r ie n t e d his m e n t o r s o r g a n ic t h e o r y o f the state


to w a rd p ro gressiv e lib e ra l-d e m o c ra tic prin cip les. F o r a sense o f G ie r k e s

in sigh ts a n d e r u d it io n s e e his P o litic c d Theories o f the M id d le Ages, trans.


F r e d e r ic W i lli a m M a it la n d ( C a m b r i d g e , 1 9 2 7 ), a n d N a t u r a l L a w a n d

the Theory o f Society, 1 5 0 0 to 180 0, trans. E rn e s t B a r k e r (C a m b r i d g e ,

1 9 5 8 ),

47. G i e r k e s article o n L a b a n d s Staatsrecht u n d die deutsche Rechtswis

senschaft was, p u b lis h e d in Schm ollets Jah rbu ch , (1 8 8 3 ): 1 0 9 7 -1 1 9 5 ; h e


110 N otes

Starts f r o m the po sition that o n e o f the h ig h e s t p u r p o s e s o f g e n u in e

c o n stitu tio n al la w lies in the c le a n s e p a ra tio n o f law f r o m p o litic s;

b u t that d e sp ite this, th e re is n o c o m p le te ly a p o litic a l co n stitu tion al


law. D u e to this lack o f clarity, the o th e rw ise s trik in g criticism o f L a -

b a n d s o n ly s e e m in g ly ap o litic a l co n stitu tion al la w w as r o b b e d o f its

p e n e t r a t in g p o w e r. L o ren z von S te in s w a r n in g fr o m the years

1 8 8 5 -8 6 (in the fo r e w o r d to vol. 2 [p . 7 5 ] a n d vol. 1 [p . 6 0 ] o f the 5th


e d . o f his Lehrbuches der Firu in zw issenscha ft) is b a s e d o n the in sigh t that

L a b a n d s ju ristic positivism , with its d iv o rc e b e t w e e n p o litic a l th e o ry

a n d the p u r e ju ris tic treatm e n t o f ad m in istrativ e law, w o u ld sh o w its


s c h o la rly in a d e q u a c y m o st co n sp icu o tisly in the fin a n c ia l m atters o f

the fe d e r a l state. O n e m ust c o n lir m w ith a d m ir a t io n , s t a t e s jo h a n n e s

P o p itz {F in a n z a r c h iv (1 9 3 2 ), 4 1 8 ), h o w L o r e n z v o n Stein t h r o u g h his

d e e p in sigh t into the s ig n ih c a n c e o f a d m in istra tio n a n d into the p o w e r

o f tax a tio n in state fo r m a t io n h a d a lre a d y in 1885 fo r e s e e n how' sin ce


th e n , if o n ly c o n s id e r a b ly la te r th an h e p e r h a p s assum etl, this p a th

w o u ld b e t r o d d e n , a n d in d e e d , as h e h im s e lf stated it, fr o m the n a t u r e


o f the t h in g itself w ith o u t w a ilin g f o r sch o la rly an alysis.

48. K a rl B in d in g , D ie G r n d u n g des N orddeu tschen B u n d es (1 8 8 9 ).

H e i n r i c h T r ie p e l, Vlkerrecht u n d Lan desrecht (1 8 9 9 ), 37, 178; O tto

G ie rk e , D a s Wesen d er m enschlichen Verbnde (1 9 0 2 ). A d d it io n a l litera

tu re in M e y e r-A n s c b tz , Staatsrecht, 7th e d . (1 9 1 9 ), 201.


49. [T r .] S ch m itts p ra is e f o r the P ru ssia n A r m y w as an o th c i' in d ic a

tion that lie w as still v ery m u c h a co n serv ativ e t h in k e r at h eart, d e sp ite

his in c re a s in g c o m p r o m is e s w ith N a z is m . In e a rly J an u ary 1934, o n ly

w ee k s b e f o r e h e in t r o d u c e d his id e a s o n c o n c r e t e -o r d e r th in k in g ,
S ch m itt h a d d e liv e re d a p u b lic le c tu re a l the U n iv e rsity o f B e r lin o n

the P ru ssia n A rm y. S p e a k in g o f the arm y as an essential p illa r o f the

slate, Sch m itt a p p a re n tly w as still h o p in g this institution c o u ld c o n

tin u e to serve as a tra d itio n a l co n serv a tiv e c o u n le rw 'e ig h t to c o m p le t e

N a z i p o w er. H is le c t u re w as su b s e q u e n tly p u b lis h e d as Staatsgefge u n d


Z u sa m m en b ru ch des zweiten R eiches: D e r S ieg des B rgers ber den Soldaten

( H a m b u r g , 1 9 3 4 ). A c c o r d i n g to G e o r g e S c h w a b , S ch m itt w as a ttem p t
in g to create a fr a m e w o rk in w h ic h the arm y w o u ld b e a m a jo r p a rt o f

the co n stitu tion al s c h e m e he in t e n d e d to c o n stru c t f o r the new

r e g im e . S ee T h e C ha llenge o f the F xcep tion , 126-1 3 0 .


N otes 111

50. [T r .] T h e d a n g e r in h e re n t in S ch m itts p o sitio n o n an o a th to an

in d iv id u a l as o p p o s e d to a constitution o r p o litic al system b e c a m e

p a in fu lly e v id e n t w ith in less th a n a year. U p o n p re s id e n t H i n d e n b u r g s


d e a th in A u g u s t 1934, the A rm y h a d to sw e a r an o ath o f a lle g ia n c e to

H it le r a n d this in the lo n g r u n u n d e r m in e d S ch m itts h o p e that an

a u t o n o m o u s A r m y c o u ld serve as a trad itio n al co n serv a tive c o u n t e r


w e ig h t to the N a zis. F o r s o m e o ffic e r s s in c e re ly b e lie v e d that this

o a t h b o u n d th e m to o b e d i e n c e to H itle r, w h ile o th e rs u s e d it as a

c o n v e n ie n t ra tio n a liz a tio n f o r in a c tio n a g a in s t th e N a z i r e g im e d u r

in g its m o s t m u r d e r o u s a n d b a r b a r o u s stages. N o a k e s a n d P r id h a m ,
N a z ism , 6.35-6.36.

51. I f today, f o r e x a m p le (in P ru ssia t h r o u g h the d e c r e e o f the M in


ister f o r S cien ce, A rt, a n d E d u c a tio n o f O c t o b e r 28, 19.3,3), in o r d e r to

s e c u re a ce n tra liz e d le a d e rs h ip o f the university, the rights o f the S e n

ate w e r e t r a n s fe r re d to the R e c to r o f the U n iversity, it w o u ld b e in c o r


rec t to e x c lu d e fr o m the tra n s fe r the le g a l d is c ip lin a ry a n d ju d ic ia l

au th o rity o f the S en ate o n the g r o u n d s that it is h e re a m atter o f ju ris

d ic tio n o r sim ila r ju d ic ia l authority. T h a t c o u ld b e ju s t ifia b le o n ly with


a s e p a ra tio n o f p o w e r s a n d lib e r a l n o rm a tiv ism that destroys the

c o n c e p t o f le a d e rs h ip as w e ll as that o f d is c ip lin e a n d h o n o r cou rts.

52. [T r .] T h e m o v e m e n t h e r e is the N a t io n a l S ocialist Party, w h ic h


S ch m itt h a d e a r lie r d e s ig n a t e d as the p o litic ally d y n a m ic c o m p o

n e n t o f the trip artite s c h e m e h e h a d a tte m p te d to c o n s tru c t fo r the

T h i r d R e ic h . N e it h e r th e p re s e n t state (in the sen se o f a p o litic al


u n it ), n o r the p r e s e n t G e r m a n p e o p le (as the s u b je c t o f the p o litic al
u n it o f the G e r m a n R e ic h ) , h e w ro te , can ev e n b e c o n c e iv e d w ith

o u t the m o v e m e n t . T h o u g h u n d e r the d ire c tio n o f the F hrer, the


m o v e m e n t w as to b e the u n ify in g lin k b e t w e e n th e state, the party,

a n d th e p e o p le , as w e ll as the institution that p r o v id e d the d y n a m ic

p o litic a l le a d e r s h ip f o r b o th state a n d p e o p le . S ee S chm itt, Staat, Be-


w egung, Volk, 13.

5.3. S ee the illu m in a tin g treatm e n t o f this by G o o d h a r t , The L a u i

Q iia rterly R e irie w h (L o n d o n , 1 9 3 4 ); 40.

54. P a g e 246 o f J. B o n n e c a s e s le c tu re o n W a lin e a n d A . M e stre, as

w e ll as B o n n e c a s e s c o m m e n ts (p . 2 6 2 ) a re o f sp ec ia l interest o n this
p o in t.
112 N oies

55. It h as le ft b e h in d , in the th re e v o lu m e s e d it e d by A . H a u r io u in
h is c o lle c t e d a n n o ta tio n s lo the d e cisio n s o f th e C onseil d E la t a n d the

T r ib u n a l des C o n flits o f 1 8 9 2 -1 9 2 8 , a g re a t m o n u m e n t o f ju ris tic p r o

ductivity (1st e d . u n d e r th e title Notes d A rre ts , 1928; 2 n d e d . as ] u r -

isprtidence a d m in istra tive, 1930).

56. T h e th re e m o st im p o rta n t t u r n in g p o in ts lie in the years 1896 { L a


Science s o c ia k tr a d itio n e lle ), 1910 (1st ed . o f the P rin cip le s de D ro it p u b lic ),

a n d 1925 { L a Therm e de T In s tilu tio n et de la fo n d a tio n in la C it m oderne et


les tra nsform a tions d u D r o it, vol. 4 o f the C ahiers de la N o u v e lle J ou rn e ).

57. I h a v e fr e q u e n t ly u se d this e x p re ss io n w ith o u t fu r t h e r s p e c ifie d

r e fe r e n c e in m y te a c h in g o f co n stitu tion al in stitu tion al g u a ra n t e e s

(B e r lin , 1931) a n d rec en tly in the fo r e w o r d to the 2 n d e d . o f m y tre a

tise P o litis ch e 'Theologie (M u n i c h a n d L e ip z ig , 1 9 3 4 ), 8.


58. G e o r g e s R e n a rd , L a Thorie de IT n s litu tio n , L s sa i d ontologie ju r id iq u e

(P aris, 1 930); L in stitu tio n , fon d em en t d u n e ren ova tion de Tordre social
(P a iis , 1 9 33 ); see also the article by Iv o r J e n n in g s , T h e Institutional

T h e o r y , in M o d e rn 'Theories o f L a w (L o n d o n , 1 933), 6 8 -8 5 .
59. [Tr.J A c c o r d i n g to Franz, N e u m a n n , it w as to av o id an y associa

tion with n c o -T h o m is m that e x p o n e n ts o f c o n c r e t e -o r d e r th in k in g

su c h as S ch m itt so u g h t an altern ativ e to the w o r d in stitu tion alism .

S e e Behem oth: 'The S tru ctu re a n d P ra ctice o f N a tio n a l Socialism , 1 9 3 3 -1 9 4 4


( N e w Y o rk , 1 9 66 ), 451. Yet, the SS S ich e rh eitsd ien st w as c o n v in c e d

that S ch m itts r e je c tio n o f the term institu tion al t h in k in g , w as ju s t

a n o t h e r a ttem p t by h im to h id e his tru e C a th o lic p o litic al m otives a n d


goals. It w o u ld b e lo o d a n g e r o u s , the SS w rote, f o r Schm itt to p r o m o t e

C a th o lic institutionalism so p u b licly a n d u n d is g u ise d . M itte ilu n g e n z u r

w eltanschaulichen L a g e i , n o . 1 (J a n u a ry 8, 1 9 3 7 ): 275, Sicherheitsdienst

d es RFSS S D H a u p t a m t (1 9 3 6 ), P A 6 5 i C , Schm itt.

60. J. H e d e m a n n , D ie F lu c h t in die G en eralkla useln (J e n a , 1 9 3 3 ).

61. H . L a n g e , L ib era lis m u s, N a tion a lsoz ia lis m u s u n d brgerliches Recht

( T b i n g e n , 1 9 33 ).
62. G . D a h m , a n d F r e ih e r r S c h a ffs le in , L ib era les oder autoritres
S tra frech (H a m b u r g , 1 9 3 3 ); H . H e n k e l, S tra frich te r u n d Gesetz im neuen

Sta a t ( H a m b u r g , 1 9 3 4 ). [T r .] T h e s e ju r is t s w e r e a m o n g the le a d in g

ad voc ates o f the p h e n o m e n o lo g ic a l sclrool o f c rim in a l law in N a z i G e r

many, w h ic h , N e u m a n n a rg u e s, c o m b in e d vitalism with C a rl S ch m itts

T h in k in g in c o n c re te o r d e r s . S ee Behemoth, 4 5 3 -4 5 8 .
N otes 113

63. T h e c a tc h w o rd iio rn ia tiv e m erits o f the case ( Tatbestandsmerk-

m a le n ) d e sig n a te s h e re o n ly the antithesis o f the a lle g e d v a lu e -fr e e ,

fir m , d e sc rip tiv e m erits o f the case; it is a s y m p to m o f the in n e r d iv i


siveness o f the positivism c o m p o s e d o f n o rm a tiv ism a n d d e c isio n is m

a n d lets us k n o w that a p u r e n o rm ativ ist n o lo n g e r thinks p u r e ly p o si-

tivistically; o n this, see a b o v e p p . 3 3 -3 6 .

64. [T r.] H a n n s K erri (1 8 8 7 -1 9 4 1 ), a Jurist a n d early N a z i m e m b e r,


b e c a m e p re s id e n t o f the P ru ssia n L a n d t a g by 1932, a n d P ru ssia n M in is

ter o f Justice a fte r the N a z i seiz u re o f p o w er. Iro n ically in ligh t o f

S ch m itts praise, K erri w o u ld in 193.5 b e a p p o in te d by H it le r as m in iste r

f o r c h u rc h a ffa irs with the e x p re ss e d g o a l o f u n d e r m in in g the a u to n


o m y fr o m N a tio n a l Socialism a n d societal in flu e n c e o f the ch u rc h e s,
the very institutions Sch m itt w a n te d to p re s e rv e as co n c rete o rd e rs.

65. A lb e r t H e n s e l, Steuenecht, 1st e d . (B e r lin 1 9 2 4 ); 3 rd ed . (1 9 3 3 ).


66. [T r.] N e u tn a n n p r o v id e d an illustration o f the n e w type o f think

in g as it p e rta in e d to la w a n d business. F o r positivism the p lan t is a tech

n ical u n it in w h ic h the p ro p e rty o w n e r p ro d u c e s , w h ile the en terp rise is

an e c o n o m ic unit in w h ic h h e p u rsu e s his busin ess policy. Institittional-

ism tran sfo rm s the p lan t into a social com m unity. T h e en terp rise b e
co m es a social o rg a n iz a tio n a n d the jo in t-sto ck c o m p a n y ch a n g e s fr o m

an association o f le g a l p e rso n s with p ro p e rty into an Anstaft. In short,

property' ch a n g e s fr o m a stibjective righ t b e lo n g in g to a legal p e rs o n


into an institution. Behemoth, 449.

67. [T r.] N o p e n a lty w ithout law . A f t e r W o r ld W a r II, Sch m itt h im

s e lf w o u ld w rite a w o rk , w h ic h r e m a in e d u n p t ib lis h e d until q u ite r e

cently, o n this c o n c e p t as it re la te d to in te rn a tio n a l la w a n d w a r crim es.

S e e C a rl Schm itt, D a s in tern a tion a lrech tlich e Verbrechen des Angriffskrieges

u n d d er G ru n d sa tz N u U u m crim en, n u lla p oen a sine lege, e d . H e lm u t


Q u a ritsc h (B e r lin , 1 9 94 ).

68. J. P op itz, E in le it u n g z u dern K o m m e n ta r zu m Umsatzsteuergesetz


(1 9 2 9 ), 91; fr o m the w ritin g s o f E . B e c k e r is o n ly m e n t io n e d h e r e his

le c tu re at the G e r m a n J u rist c o n fe r e n c e at L e ip z ig in 1933 (p u b lis h e d

in A n sp ra ch e n u n d F a ch vortriigen des deulschen Juristentags, e d . Ober-


regierun gsrat D r. S c h ra u t [B e r lin , 1 9 3 3 ], 3 0 0 ).

69. F o r this, i f I m ay b e p e rm itte d to say, c h a ra c te r o f sch o larly

th o u gh t, w h ic h is a g a in b e c o m i n g un iversal, the treatise hy P ru ssia n


Fin an c e M in is te r P o p itz o n the g re a t w o r k o f the G e r m a n n a tio n a l
114 N otes

e c o n o m is t v o n G o t ll-O t t lilie n fe ld is o f sp ec ia l interest. S e e his article

R e c h t u n d W ir t s c h a ft Juristische W orh en s ch rift 1 (1 9 3 3 ). T h e eco

n o m ic d o c t r in e o f this B e r lin s c h o la r w o rk s witli p a tte rn s a n d stru c

tu re (G e b ild e n u n d G e fiig e n ), in stead o f abstract a n d iso la te d co n c ep ts


a n d rela tio n sh ip s. T h a t c o u ld b e c o m e c o n d u c iv e to the n e w c o n c re te -

o r d e r th in k in g in ju r is p r u d e n c e in a m a n n e r a n a lo g o u s to h o w the in

d iv id u a listic system of the so -c a lle d classical n a tio n a l econom y


b e l o n g e d to the capitalistic t h in k in g o f the b o u r g e o is Rechtsstaat a n d

its positivistic n o rm ativ ism .


70. [T r .] O n the in tro d u c tio n o f this n e w j a r g o n as it p e r t a in e d to

the id e o lo g ic a l g o a ls o f N a tio n a l S ocialism r e g a r d i n g the r e la tio n s h ip

b e t w e e n busine.ss a n d la b o r, as w ell as e c o n o m ic activity a n d e n te r


prises ge n e ra lly , see D a v id S c h o e n b a u m , H it le r s S o c ia l R e v o lu tio n : Class

a n d Status in N a z i G erm any, 1 9 3 3 -1 9 3 9 ( N e w Y o rk , 1 9 6 6 ), 7 3 -1 5 1 .


71. [T r ,] A c c o r d i n g to N e u m a n n , N a z i le g a l theorists a r g u e d that

fro n ts a n d o c c u p a tio n s a r e articu la tio n s o f the n a tu ra l o r d e r o f the

p e o p le , in w h ic h a series o f laws c re a t e d b y o c c u p a t io n a l a n d estate

g r o u p s a p p e a rs to b e the o p t im u m p r in c ip le o f v o lu n ta ry a n d o r d e r ly

g r o w t h o f law . Behemoth, 451.


72. [T r .] E stab lish e d u n d e r the L a w f o r the O r g a n iz a t io n o f L a b o r ,

these co u rts w e r e In t e n d e d to d e a l w ith v io la tio n s o f so c ia l h o n o r

w ithin the b u sin ess e n t e r p r is e . F o r a fu lle r e x p la n a t io n o f h o w they

actually fu n c t io n e d in the T h i r d R e ic h , see N a t h a n A . P elcovits, T h e


S o c ial H o n o r C o u rts o f N a z i G e r m a n y , P o litic a l Science Q u a rterly 53,

n o . 3 (1 9 3 8 ): 3 5 0 -3 7 1 .
73. [T r .] T h e term Sachgestcdtung in v e n ted by the N a z is c o n n o t e s a
type t)f t h in k in g a n d u ltim ately le g a l p rac tic e s h a p e d by the n e e d s o f

the c o n c re te situ atio n . N e u m a n n , Behemoth, 451.


34. Ju ristisch e W och en sch rift (1 9 3 3 ), 2091.
75. [T r .] S ch m itt a n d F r a n k w e re d e v e lo p in g a fr ie n d s h ip , a n d a fe w

m o n th s later, in J u n e 1934, F ra n k a p p o in te d S ch m itt e d it o r o f the

c o u n t r y s le a d in g la w jo u r n a l, D eu tscheJu risten zeitu ng. F ra n k was a ls o in

flu e n tia l in d e f e n d i n g S ch m itt a n d p r o te c t in g h im f r o m a w o rse fa te

than the loss o f his p arty o ffic e s w h e n the SS su b s e q u e n tly so u g h t lo

p u r g e h im . S e e Jo se p h W . B en d ersk y , C a r l Sch m itt: Th eorist f o r the Reich

(P r in c e t o n , 1 9 83 ), 2 J 1 -2 1 2 , 2 3 0 -2 3 9 .
Bibliography

SELECTED WORKS BY CARL SCHMITT

Books
T h e C oncept o f the P o litic a l (2 n d . e d . 1928). T ra n sla te d b y G e o r g e
S c h w a b . C h ic a g o , 1996.

The Crisis o f P a rlia m e n ta ry Dem ocracy (1 9 2 3 ). T ra n sla te d by E lle n

K en n e d y . C a m b r id g e , M ass., 1985.

D a s Rdchsstattshaltergesetz. 2 n d . ed . B e r lin , 1934.

D e r H t e r der Verfassung. T b i n g e n , 1931.

D e r W ert d er Staates u n d die B e d e u tu n g des E inzelnen . T b in g e n , 1914.


D ie D ik ta tu r : Von den A n f n g e n des m odernen Souvernittsgedankens bis

z u m p roleta rischen K la s s e n k a m p f 2 n d e d . M u n ic h , 1928.


Cesetz u n d U rte il: E in e U n te rs u c h u n g zu m P rob lem d er Rechtspraxis. M u
n ich , 1912.

Le ga lity a n d Legitim acy . T ra n sla te d by Jeffrey Seltzer. D u r h a m , N .G .,


2004.

T h e L e v ia th a n in the State Theory o f T h om a s H obbes: M e a n in g a n d F a ilu re

o f a P o liiic a l Sym bol (1 9 3 8 ). T ra n sla te d b y G e o r g e S ch w ab . W e st


p o rt, C o n n ., 1996.

N o m o s o f the E a rth in the In te r n a tio n a l L a w o f the J u s P u b lic u m Eu ropa eu m .

T ra n sla te d by G . I.. U lr n e n . N e w Y o rk , 2003.

P o litic c d Theology: F o u r Chapters on the C oncept o f Sovereignty (1 9 2 2 ).

T ra n sla te d by G e o r g e S ch w ab . C a m b r id g e , M ass., 1985.


116 B ibliograph y

P o s itio n e n u n d Begriffe im K a m p f m it W e im a r-C e n f-V e rs a ille s , 1 9 2 3 -1 9 3 9 .


H a m b u r g , 1940,

Staat, Bew egung, Volk: D ie D re ig lie d e ru n g der p olitisch en E in h eit. H a m b u r g ,

1933.

Staatsgefge u n d Z u sa m m en b ru ch des Zw eiten Reiches: D e r Sieg des B rgers

b er den Soldaten. H a m b u r g , 1934.


U ber die drei A rte n des rechtswissenschaftlichen Denkens. H a m b u r g , 1934.

Uber S c h u ld u n d S ch u ld a rten : E in e term in ologisch e U ntersu ch u n g. B re slau ,

1910.

Verfassungsrechtche .Vufstze aus den Jahren 1 9 2 4 -1 9 5 4 : M a te ria lie n zu


ein er Verfassungslehre. B e r lin , 1958.

Verfassungslehre. M u n ic h , 1928.

Articles
D a s G e se tz z u r B e h e b u n g d e r N o t v o n V o lk u n d R e ic h . Deutsche

J itris te n -Z e itu n g ^ id , H e f t 7 (A p r i l 1, 1 9 3 3 ); 4 5 5 -4 5 8 .

D e r F h r e r schtzt d as R e c h t. Deutsche J u ris te n -Z e itu n g 39, H e f t 15


(A u g u s t 1, 1 9 34 ); 9 4 5 -9 5 0 .

D e r Staat als M e c h a n is m u s b e i H o b h e s u n d D e sc artes. A r c h iv f r

Rechts- u n d S o z ia lp h ilo s o p h ie 30 (1 9 3 6 - 3 7 ): 6 2 2 -6 3 2 .

D e r W e g d es d e u ts c h e n J u riste n . Deutsche fu r is te n -Z e itu n g 3 9 , H e ft 11

(J u n e 1, 19.34); 6 9 1 -6 9 8 .

D ie d e u tsch e R c c h tsw isse n sc h a ll im K am pf gegen d e n j d is c h e n


G e ist. D eutsche fu r is te n -Z e itu n g 4V, H e ft 20 ( O c t o b e r 15, 19.36):

119.3-1199.
D ie g e sc h ich tlich e L a g e d e r d e u ts c h e n R ech tsw issen sch aft. Deutsche

J u r is te n - Z e itu n g M , H e f t 1 (J a n u a r y 1, 1 9 3 6 ); 1 5 -2 1 .

D ie n a tio n a lsozialistisch e G e s e t z g e b u n g u n d d e r V o r b e h a lt d e s o r-

d rc p u b li c im in te rn a tio n a le n P riv a tre ch t. ZeM schrift der

A k a dem ie f r Deutsches Recht, H e ft 4 (F e b r u a r y 20, 1 9 3 6 );

2 0 4 -2 1 1 .
D ie N e u g e s t a lt u n g d e s ffe n t lic h e n R e c h i . J a h rb u ch der A k a d em ie f r

Deutsches R echt I (1 9 3 3 - 3 4 ): 6 3 -6 4 .
D ie S te llv e rtre tu n g d e s R e ic h s p r s id e n t e n . D eutsche J u ris te n -Z e itu n g

38, H e ft 1 ( J an u ary 1, 1 9 3 3 ); 2 7 -3 1 .
B ibliogra ph y 117

D ie V e r fa s s u n g d e r F re ih e it. Deutsche J u ris t en ,-Z eitun g 4t), H e f t 19 ( O c


t o b e r 1, 1 9 35 ): 11.33-1135.

N a tio n a lso z ia lis m u s u n d R echtsstaat. Deutsches R echt 4, n o . 10 (M a y

25, 1 9 3 4 ): 2 2 5 -2 2 9 .

N e u e Leitstze f r d ie R e ch tsp rax is. /iim/wc/i W ochenschrift H e ft


50 (D e c e m b e r 16, 1 9 3 3 ): 2 7 9 3 -2 7 9 4 .

SELECTED WORKS ON SCHMITT AND O N THE


THREE TYPES OF JURISTIC THOUGHT

Books
B eh re n d s, O kko. V o n der F r e ir e c h t s b e w e g u n g zu m k o n k re t e n

O r d n u n g s u n d G e s t a lt u n g s d e n k e n . In R ech t u n d J u stiz im D r i t

ten R e ic h , e d ite d by R a lf D re ie r, a n d W o lf g a n g S c lle it. F ra n k


fu rt, 1989.

B en d ersk y , J o s e p h W . C a r l S ch m itt: Th eorist f o r the R eich. P rin c e to n ,

1983.
B e rth o ld , L u tz. C a r l S ch m itt u n d der Sta a tsn otsta n dspla n am E n d e d er

W eim arer R epu blik. B e r lin , 1999.

B c k e n f r d e , E rn s t -W o lfg a n g . K o n k re te s O r d n u n g s d e n k e n . V o l. 6
o f H istorisches W rterbuch d er Philosofrhie, e d ite d b y j . Ritter, a n d

K. G r n d e r . Basel, 1984.
B re c h t, A r n o ld . P o litic a l T h eory : T h e F o u n d a tio n s o f l'xuentieth-Century P o
litic a l T h ou g h t. P rin c e to n , 1959.

B ro d e ric k , A lb e r t . T h e French In s titu tio n a lis ts : M a u r ic e H a u r io u , Ceorges

Ren a rd , Joseph T. Delos. T ra n sla te d by M a r y W e llin g . C a m b r id g e ,

1970.

C a ld w e ll, Peter. P o jn d a r Sovereigrdy a n d the Crisis o f C e rm a n C o n s litu -


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J o u r n a l o f L a w i d J u risp ru d en ce 10, n o . 1 (J a n u a r y 1 9 9 7 ).

K irc h h e in ie r, O tto . C r im in a l L a w in N a tio n a l S ocialist G e r m a n y .

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Index

A c a d e m y o f G e r m a n l.aw , 97 c h u rc h e s, 5 - 6 , 1 7 -1 8 , 2 0 -2 1 , 54,
A m e r ic a n ju r is p r u d e n c e , 4 9 -5 0 , 60, 113. a/vo C a th o lic
8 5 -8 6 C h u rc h
A n s c h tz , G e r h a r d , 7, 102 C orntc, A u g u s t e , 64
A n s ta lt, 89. See also institu tion al c o n c re te o r d e r th in k in g , 1, 4 -5 ,
t h in k in g 20, 23, .30-31, 51, 5 4 -5 6 ,
anti-Sem itism , 24, 2 6 -2 7 , 3 6 -3 7 . 7 5 -7 9 , 82, 9 3 -9 5 , 9 8 -9 9 , 113.
See a t o je w s ; rac ia l th e o ry See a k o institu tion al t h in k in g
A rtfrem des, 25 C o n s titu tio n a l C o u rt, 5
A rtg le ich h eit, 25 c rim in a l law, 27, 9 1 -9 4
Au sna h m ezustan d, 1 1 -1 5 , 79, 98

D a h m , G . , 9 1 , 112
B eck er, E n n o , 93, 113 d e cisio n ism , 1, 1 0 -1 2 , 21, 31,
B e n th a m , Jerem y, 6 6 -6 7 , 1 0 6 -1 0 7 5 9 -6 2 , 6 8 -7 0 , 7 3 -7 4 , 98. See
B c r g b o h m , K arl, 6,5-66 afio H o b b e s , T h o m a s

B e r t h o ld , Lu tz, 15 D e ssau e r, F re d e ric k , 2 9 -3 0


B in d in g , Ktirl, 55, 110 D u g u it, L o n , 87
B c k e n f r d e , E rn s t -W lfg a n g , 4
B o d in ,J e a n , 61, 1 0 4 -1 0 5 E h rlic h , E u g e n , 9

E in r ic h tu n g , 8 9 -9 0 , 94. See also


G a lv in , J o h n , 5 9 -6 1 , 104 c o n c re te cjrd er th in k in g ;

C a th o lic C h u r c h , 5 -6 , 29, 60, 75, institution al th in k in g


89, 112 E n g lis h ju r is p r u d e n c e , 8.5-86
122 Index

Fichte, J o h a n n G o ttlie b , 77, 108 H e g e l, G e o r g W ilh e lm F rie d ric h ,

F r a e n k e l, E rn est, 2, 31 9, 20, 28, 7 7 -7 9

F ra n k , H a n s , 2, 24, 9 7 ,1 1 4 H e n k e l, H , 91, 107, 112

F ra n k f u rt S c h o o l, 5 H in d e n b u r g , P a u l v o n . See R e ich

F r e e -L a w M o v e m e n t, 9 -1 0 , 23, P re s id e n t

86, 98 H itle r, 17, 24. S e e -ho Fhrer,

Frehechts/ehre. See F re c -l.a w F h ru n g

M ovem ent H o b h e s , T h o m a s , 12, 6 1 -6 2 ,

F re n c h ju r is p r u d e n c e , 8 6 -8 8 . See 7,3-74, 78, 98, 1 0 5 -1 0 6 . See also

also H a u r io u ; institu tion al d e c isio n ism

t h in k in g h o n o r co u rts, 82, 9 4 -9 5 , 114

F h rer, F h ru n g , 19, 24, 50, 55, H u b e r , E rn st R u d o lf, 2 7 -2 8

8 1 -8 3 , 9 4 -9 5 , 98, 111. See also

H it le r in stitu tion al th in k in g , 4, 14, 30,

8 6 -9 0 , 1 1 2 -1 1 3 . See also

g e n e r a l clau ses 4 -5 , 23, 9 0 -9 2 , c o n c re te o r d e r th in k in g ;

112 H a u r io u , M a u r ic e ; R o m a n o ,

Genossenschaft, 25, 80, 89 Santi


G e r b e i , C a rl F iie d r ic h v o n , 7 institution alism . See institution al

G e r m a n arm y. See R e ic h s w e h r t h in k in g

G e r m a n law, 25, 30, 9 0 -9 5 , 97, institutions. See institu tion al

101, 1 0 9 -1 1 0 . See also t h in k in g

G e r m a n ic t h in k in g Interessen fu ris p ru tk n z . See

G e r m a n L e g a l F ro n t, 97 situ atio n al ju r is p r u d e n c e

G e r m a n ic th in k in g , 2 4 -2 5 , 27,

45, 7 5 -7 7 , 8 0 -8 1 , 9 7 -9 9 . See J e llin e k , G e o r g , 6 8 -6 9 , 106

also G e r m a n law J e n n in g s , Ivor, 112

G eskdtun g, 43, 101 Jetvs, 15, 17, 2 6 -2 9 , 3 6 -3 7 , 45. See

G ie rk e , O t t o v o n , 80, 1 0 9 -1 1 0 (dso an ti-Sem itism ; racial

G n e ist, R u d o lf, 7 9 -8 0 th e o ry

J u n g , E ric h , 71, 106

H a u r io u , M a u r ic e , 4, 27, 55,

8 6 -8 9 , 112. See also Kaiser, Jo seph H ., 4, 33

institu tion al t h in k in g K aiser-W 'illielm Society fo r the

H e d e m a n n , J, 112. See also A d v a n c e m e n t o f S cien ce, 6

g e n e r a l clatises Kant, Im m a n u e l, 9, 11, 76, 78


Index 123

K e lse n , H a n s , 7 -8 , 10.3. See also n e o -H e g e lia n . .Gr H e g e l, G e o r g


le g a l positivism ; n o rm a tiv ism ; W ilh e lm F r ie d i leh

positivism n e o -K a n tia n . See K ant, Im m a n u e l


K e rrl, H a n n s , 91, 113 N e u m a n n , F ra n z , 2, 31, 1 1 2 -1 1 4
K o e llr e u U e r , O tto , 28 N om os, 4 9 -5 1 , 1 0 2 -1 0 3
K o e n e n , A n d r e a s , 5 -6 , 33, n o rm a tiv ism , 7 -8 , 2 1 -2 2 , 31,
35 4 8 -5 0 , 5 2 -5 4 , 5 6 -5 7 , 7,3-74,

K o h le r, J o se f, 9 8 5 -8 6 , 113. A o K elsen ,
H a n s ; positivism ; le gai

l.a b a n d , P au l, 7, 80 positivism

L a n g e , H , 91, 112 n o rm s. See n o rm ativ ism


L a re n z , K arl, 27

L a w f o r the O r g a n iz a t io n o f P ic c o n e , P a u l, 5
N a t io n a l L a b o r , 94 P lan ck , M a x , 71, 107

le a d e rs h ip . S e e Fhrer, F h r u n g P op itz, J o h a n n e s , 1 8 ,9 3 , 1 1 3 -1 1 4
le g a l positivism , 7 -8 , 2 1 -2 2 , positivism , 7 -8 , 31, 6 3 -7 1 . See also
6 3 -7 1 , 8.5-86, 93, 98. See also K elsen , H a n s ; le g a i positivism ;
K e lse n , H a n s ; n o rm ativ ism ; n o rm ativ ism
positivism P ru ssia n A rm y , 8 1 -8 2 , 110. See
lib e ra lism , 1, 3, 17, 25, 45, 7 6 -8 2 , also R e ic h s w e h r

92, 103 P ru ssia n State C o u n c il, 16, 18


Lu th e r, M a rtin , 20, 7 5 -7 6 P u fe n d o r f , S a m u e l, 76, 108

M a n n h e im , Kttrl, 73, 1 0 7 -1 0 8 rac ia l theory, 2 4 -2 9 , 3 6 -3 7 , 45.


M a n s, I n g e b o r g , 5, 33 90. See also an ti-Sem itism ; Jews
M eyer, G e o r g , 7 ratio n al law. See n a tu ra l law

Recht, 9 -1 0 , 4 7 -4 9 , 51, 5 9 -6 1 , 64,


N a tio n a l S ocialism , 2, 5 -6 , 13, 68, 7 6 -7 7 ,8 6 , 9 1 , 9 7
1 5 -1 9 , 2.3, 4 8 , 9 0 - 9 1 ,9 4 ,9 7 , Rechtsstaat, 45, 50, 67, 7 8 -8 0 , 93,
111 101-1 0 2 , 1 0 6 -1 0 7 , 109
N a t io n a l S ocialist L e a g u e o f R e ich G r o u p o f Y o u n g Jurists,
G e rm an Ju ris ts, 9 7 N a tio n a l Socialist L e a g u e o f
n a t u r a l law, 9 -1 0 , 43, 64, 7 3 -7 4 , G e r m a n Jurists, 6
7 6 ,7 8 , 8 5 -8 6 R eich p resid en t, 1 2 -1 4 , 16 -1 7 ,
N a zis, N a zism . N a tio n a l 111
Socialism R eich stag, 1 2 -1 3
124 Index

Reichswehr, 1 6 -1 7 . See also 25, 94; Staatsgefge u n d

P ru ssia n A rm y Z u sa m m enbruch des ziveiten

reine Rechlslheoric. See K elsen , Reiches: D e r S ieg des B rg ers ber

H ans den Soldaten, 110;

R e n a rd , G e o r g e , 4, 112 Verfassungslehre, 14

R e lig io n . See C a th o lic C h u r c h ; S c h w a b , G e o r g e , 4 -5 , 101, 110

c h u rc h e s; th e o lo g ic a l twist S ich erh eitsdien st. See SS

R o m a n law, 45, 67, 101, 109 situ a tio n a l ju r is p r u d e n c e , 14,

R o m a n o , Santi, 27, 57, 59, 8 6 -8 7 . 106

See also in.stiiutional t h in k in g SS, 2 8 -2 9 , 112

R th e rs, B e r n d , 4 -5 , 30 S tam m le r, R u d o lf, 9

Sta n d, Stnde, 20, 23, 5 4 -5 5 ,

Sachgestaltung, 97, 114. See also 7 4 -7 5 , 94, 97

F ra n k , H a n s state o f e x c e p tio n . S ee

Savigny, K a rl F r ie d ric h v o n , 44, A u sn a h m ezu sta n d

77, 101 Stein, L o r e n z v o n , 7 9 -8 0 , 8 7 -8 8 ,

S ch affsteiti, F re ih e rr, 9 1 , 1 1 2 110


S c h e llin g , F rie d ric h W ilh e lm Strauss, L e o 2 6 -2 7 . See a t o anti-

J o s e p h , 77 S em itism ; Jew s

S ch leich er, K u rt v o n , 15

Schm itt, C a rl: C a th o lic ism , 6, tax law, 27, 9 1 -9 3

2 8 -2 9 , 1 12; co n serv a tism , 2, T F L O S , 5, 33

46, 16, 18; co n tin u ity o f t h e o lo g ic a l twist, 5

ideas, 6; a n d Jew s, 15, 2 6 -2 8 ; t h e o ry o f p u r e law. See K e lse n

in tellec tu a l ct)iicessioiis to T r ie p e l, H e in r ic h , 110

N a z is m , 6, 2.3-29;

in te rn a tio n a l re n a issa n c e o f, U n ix ersity T e a c h e rs G r o u p ,

3 -6 ; a n d N a zis, 1 5 -1 9 ; a n d N a tio n a l .Socialist L e a g u e o f

N a z i racism 2 4 -2 9 , 45, 90; G e r m a n Jurists, 16


W o rk s : Freiheitsrechte u n d

in s titu tio n e lle G a ra n tie n der v a lu e -n e u tra l co n stitu tion alism ,

R k h s v e r fa s s u n g , \4-, Gesetz u n d 1 3 -1 4 , 6 4 -6 6 ,7 1 ,1 0 3 ,

U rteil, 10; D e r H t e r der 1 0 9 -1 1 0

Verfassung, 1 0 5 -1 0 6 ; L e g a lit t Volksgenosse, 25, 97

u n d L e g itim it t, I I , 13, 106;

Staat, B ew egung, Volk, 18, 23, W e im a r R e p u b lic , 12


About the Author and Translator

C A R L S C H M IT T (1888-1985) was a jurist, scholar, and author.

JO SEPH W. BENDERSKY is Professor and Chair in the History


Departm ent at Virginia Com m onwealth University. A m o n g his
earlier books is Carl Schmitt: Theorist fo r the Reich (1983).