Weimar: A Jurisprudence of Crisis

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This selection of the major works of constitutional theory during the Weimar period reflects the reactions of legal scholars to a state in permanent crisis, a society in which all bets were off. Yet the Weimar Republic's brief experiment in constitutionalism laid the groundwork for the postwar Federal Republic, and today its lessons can be of use to states throughout the world. Weimar legal theory is a key to understanding the experience of nations turning from traditional, religious, or command-and-control forms...
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Overview

This selection of the major works of constitutional theory during the Weimar period reflects the reactions of legal scholars to a state in permanent crisis, a society in which all bets were off. Yet the Weimar Republic's brief experiment in constitutionalism laid the groundwork for the postwar Federal Republic, and today its lessons can be of use to states throughout the world. Weimar legal theory is a key to understanding the experience of nations turning from traditional, religious, or command-and-control forms of legitimation to the rule of law.

Only two of these authors, Hans Kelsen and Carl Schmitt, have been published to any extent in English, but they and the others whose writings are translated here played key roles in the political and constitutional struggles of the Weimar Republic. Critical introductions to all the theorists and commentaries on their works have been provided by experts from Austria, Canada, Germany, and the United States. In their general introduction, the editors place the Weimar debate in the context of the history and politics of the Weimar Republic and the struggle for constitutionalism in Germany. This critical scrutiny of the Weimar jurisprudence of crisis offers an invaluable overview of the perils and promise of constitutional development in states that lack an entrenched tradition of constitutionalism.

Author Biography: Arthur J. Jacobson is Max Freund Professor of Litigation and Advocacy at the Benjamin N. Cardozo School of Law, Yeshiva University, and coauthor of The Longest Night: Polemics and Perspectives on Election 2000 (California, 2002). Bernhard Schlink is Professor of Public Law and Legal Philosophy at Humboldt Universit├Ąt zu Berlin. His novel, The Reader (trans. 1999), has won critical acclaim in German and in English.

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Editorial Reviews

Ulrich Karl Preuss
An important resource, it includes the most significant and influential texts representative of the political and conceptual diversity of the intellectual approaches of that time. . . . Very significant for contemporary debates about the relationship between state, law, and constitution.
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Product Details

Meet the Author

Arthur J. Jacobson is Max Freund Professor of Litigation and Advocacy at the Benjamin N. Cardozo School of Law, Yeshiva University, and coauthor of The Longest Night: Polemics and Perspectives on Election 2000 (California, 2002). Bernhard Schlink is Professor of Public Law and Legal Philosophy at Humboldt Universit├Ąt zu Berlin. His novel, The Reader (trans. 1999), has won critical acclaim in German and in English.

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Table of Contents

Preface
Translation and Apparatus
Introduction: Constitutional Crisis: The German and the American Experience 1
Prologue : The Shattering of Methods in Late Wilhelmine Germany
Introduction 41
On Legal Theory and Sociology (1911) 50
Constitutional Amendment and Constitutional Transformation (1906) 54
On the Borders between Legal and Sociological Method (1911) 57
Statute and Judgment (1912) 63
1 Hans Kelsen
Introduction 67
Legal Formalism and the Pure Theory of Law (1929) 76
On the Essence and Value of Democracy (1929) 84
2 Hugo Preuss
Introduction 110
The Significance of the Democratic Republic for the Idea of Social Justice (1925) 116
3 Gerhard Anschutz
Introduction 128
Three Guiding Principles of the Weimar Constitution (1922) 132
4 Richard Thoma
Introduction 151
The Reich as a Democracy (1930) 157
5 Heinrich Triepel
Introduction 171
Law of the State and Politics (1926) 176
6 Erich Kaufmann
Introduction 189
On the Problem of the People's Will (1931) 196
7 Rudolf Smend
Introduction 207
Constitution and Constitutional Law (1928) 213
8 Hermann Heller
Introduction 249
Political Democracy and Social Homogeneity (1928) 256
The Essence of Structure of the State (1934) 265
9 Carl Schmitt
Introduction 280
The Status Quo and the Peace (1925) 290
The Liberal Rule of Law (1928) 294
State Ethics and the Pluralist State (1930) 300
Epilogue: The Decline of Theory
Introduction 313
The Total State (1933) 320
Legal Community as National Community (1935) 323
The Constitution of Freedom (1935) 323
The Administration as Provider of Services (1938) 326
New Foundations of Administrative Law (1934) 327
Administration (1937) 327
Constitution (1937) 328
From and Structure of the Reich (1941) 330
"Positions and Concepts": A Debate with Carl Schmitt (1941) 331
Reich, Sphere of Influence, Great Power (1942) 332
Notes 335
Editors and Contributors 391
Copyright Acknowledgments 393
Index 395
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