Popular Sovereignty and the Crisis of German Constitutional Law: The Theory and Practice of Weimar Constitutionalism

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Overview

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.

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Editorial Reviews

German Studies Review
Peter C. Caldwell's study provides a new dimension to our analysis of the political and economic instability of the Weimar years by analyzing the ideas of major theorists of constitutional law, and how their ideas provide insight into new (perhaps even revolutionary) directions that German constitutional law developed during the short-lived republic...Caldwell's study is a well-documented analysis certain to fill a gap in the literature of German legal theory and constitutional history.
Law and Politics Book Review
[An] important contribution to our understanding of the failure of liberalism to take root in Germany in the 1920s....[Caldwell's] work is a breath of fresh air for American students of constitutional theory, because the current debates over the U.S. Constitution's meaning take for granted such fundamental questions as popular sovereignty and the legitimacy of the welfare state. The book also contributes to the understanding of the basic law of the Federal Republic of Germany....
American Historical Review
Peter C. Caldwell's important study of German constitutional law is a welcome addition to the historical literature....[A] very useful book establishing the contemporary relevance of Weimar constitutionalism [and] expand[ing] the debate beyond the narrow and perhaps overworked Kelson-Schmitt duality by finally recognizing the contributions of other significant legal theorists.
From the Publisher
“A searching examination and critical analysis of the debates in Germany over the meaning and interpretation of the constitution during the Weimar years. No other book in English, so far as I know, treats Weimar constitutionalism with the depth and analytical power of this study. What an admirable study of intellectual history this book is!”—Donald P. Kommers, University of Notre Dame

“An outstanding contribution to the literature on 20th-century Germany and its political/legal theory.”—Ellen Kennedy, University of Pennsylvania

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Product Details

  • ISBN-13: 9780822319795
  • Publisher: Duke University Press
  • Publication date: 8/19/1997
  • Pages: 320

Meet the Author

Peter C. Caldwell is Associate Professor of History and German Studies at Rice University.

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Table of Contents

Preface
Acknowledgments
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
Notes 179
Bibliography 253
Index 293
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