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Popular Sovereignty and the Crisis of German Constitutional Law is a historical analysis of competing doctrines of constitutional law during the Weimar Republic. It chronicles the creation of a new constitutional jurisprudence both adequate to the needs of a modern welfare state and based on the principle of popular sovereignty. Peter C. Caldwell explores the legal nature of democracy as debated by Weimar’s political theorists and constitutional lawyers. Laying the groundwork for questions about constitutional law in today’s Federal Republic, this book draws clear and insightful distinctions between strands of positivist and anti-positivist legal thought, and examines their implications for legal and political theory.
Caldwell makes accessible the rich literature in German constitutional thought of the Weimar period, most of which has been unavailable in English until now. On the liberal left, Hugo Preuss and Hans Kelsen defended a concept of democracy that made the constitution sovereign and, in a way, created the "Volk" through constitutional procedure. On the right, Carl Schmitt argued for a substantial notion of the "Volk" that could overrule constitutional procedure in a state of emergency. Rudolf Smend and Heinrich Triepel located in the constitution a set of inviolable values of the political community, while Hermann Heller saw in it a guarantee of substantial social equality. Drawing on the work of these major players from the 1920s, Caldwell reveals the various facets of the impassioned constitutional struggles that permeated German legal and political culture during the Weimar Republic.
“An outstanding contribution to the literature on 20th-century Germany and its political/legal theory.”—Ellen Kennedy, University of Pennsylvania
|The Power of the People and the Rule of Law: The Problem of Constitutional Democracy in the Weimar Republic||1|
|1||The Will of the State and the Redemption of the German Nation: Legal Positivism and Constitutional Monarchism in the German Empire||13|
|2||The Purity of Law and Military Dictatorship: Hans Kelsen and Carl Schmitt in the Empire||40|
|3||The Radicalism of Constitutional Revolution: Legal Positivism and the Weimar Constitution||63|
|4||The Paradoxical Foundations of Constitutional Democracy: Hans Kelsen and Carl Schmitt in the Weimar Republic||85|
|5||Constitutional Practice and the Immanence of Democratic Sovereignty: Rudolf Smend, Hermann Heller, and the Basic Principles of the Constitution||120|
|6||Equality, Property, Emergency: The Constitutional Jurisprudence of the High Courts in the Republic||145|
|Conclusion: The Crisis of Constitutional Democracy||171|