De Wilde 2010

Tijdschrift voor Rechtsgeschiedenis 78 (2010) 135-158
Revue d’Histoire du Droit 78 (2010) 135-158

The Legal History Review 78 (2010) 135-158
The state of emergency in the Weimar Republic

Legal disputes over Article 48 of the Weimar
Constitution
Marc de Wilde*
Summary
The article analyzes the debate on ‘constitutional dictatorship’ that took place at the first annual
conference of the Association of German Constitutional Lawyers in Jena in 1924. In their key-
note lectures, Carl Schmitt and Erwin Jacobi argued that Article 48 of the Weimar Constitution
authorized the President of the Reich to derogate from the rule-of-law provisions of the con-
stitution if this was necessary to save its ‘political substance’. Advocating a ‘doctrine of derogation’,
they implicitly criticized one of the main methodological assumptions of legal positivism, i.e.,
that legal norms and politics, law and power, had to remain strictly separated. They thereby set
the stage for the emerging ‘conflict of methods and directions’ that was to haunt German juris-
prudence in subsequent years.
Keywords
Weimar Republic, state of emergency, constitutional dictatorship, Article 48 Weimar Con-
stitution, anti-positivism
Introduction
On 14 and 15 April 1924, some of the brightest minds of constitutional
law in the Weimar Republic convened in Jena for the first annual meeting
of the Association of German Constitutional Lawyers. One of the topics on
the agenda was ‘the dictatorship of the President of the Reich [die Diktatur
des Reichspräsidenten]’, more particularly, the question as to how Art. 48 of
the Weimar Constitution, which gave the President far-reaching powers in
case of an emergency, had to be interpreted. The question was addressed by
two of the key-note speakers, Carl Schmitt and Erwin Jacobi, Professors of
Constitutional Law at the University of Bonn and Leipzig respectively1. In
their lectures, both criticized the dominant interpretation of Art. 48, which
* Faculteit der Rechtsgeleerdheid, Universiteit van Amsterdam, Postbus 1030, 1000

BA Amsterdam, The Netherlands; M.deWilde@uva.nl.
1
The other topic of discussion was ‘German federalism’, which was addressed by Gerhard
Anschütz and Carl Bilfinger.
© Koninklijke Brill NV, Leiden, 2010 DOI: 10.1163/157181910X487341

136 M. de Wilde / Tijdschrift voor Rechtsgeschiedenis 78 (2010) 135-158
declared the constitution ‘inviolable’ vis-à-vis the President’s emergency

powers. Instead, they argued that Art. 48 authorized the President to derogate
from the rule-of-law provisions of the constitution if this was necessary to
save the constitution itself2.
The discussion proved momentous. In prior years, Schmitt, in particular,
had become one of the leading voices of the so-called ‘anti-positivist’ movement
in German jurisprudence3. Attending his lecture were some of the leading
spokesmen of positivism, such as Richard Thoma and Gerhard Anschütz. By
arguing that the President could sacrifice the rule-of-law provisions of the
constitution to save its ‘political substance’, Schmitt implicitly criticized one
of positivism’s main methodological assumptions, i.e., that legal norms and
politics, law and power, had to remain strictly separated. Schmitt thereby
made the question of the President’s dictatorship the focus of a ‘conflict of
methods and direction [Methoden- und Richtungsstreit]’4. In the ensuing
debate, the positivists responded vehemently, arguing that Schmitt had liberated
the President from constitutional restraints, thus allowing for a virtually
unlimited executive power. Soon afterwards, two of the critics, Hans Nawiasky
and Richard Grau, published lengthy articles in which they systematically
rejected the main propositions of what they called the ‘Schmittian-Jacobian
doctrine’5.
There has been relatively little attention in secondary literature for the
debate that took place at the Jena conference. Most authors mention it only
in passing6, although some do acknowledge its importance in contributing
to ‘an uncontrollable erosion of the [constitutional] text’7. The only account
of the discussion that is more extensive is Peter Blomeyer’s, which is valuable
2
C. Schmitt, Die Diktatur des Reichspräsidenten nach Artikel 48 der Weimarer Verfassung, in:
Schmitt, Die Diktatur, Berlin 1994, p. 211–257; E. Jacobi, Die Diktatur des Reichspräsidenten
nach Artikel 48 der Reichsverfassung, Veröffentlichungen der Vereinigung der deutschen Staats-
rechtslehrer, 1 (1924), p. 105–136.
3
M. Stolleis, Geschichte des öffentlichen Rechts in Deutschland, Weimarer Republik und National-
sozialismus, Munich 2002, p. 177ff.
4
On the ‘conflict of methods and direction’: M. Friedrich, Der Methoden- und Richtungsstreit,
zur Grundlagendiskussion der Weimarer Staatsrechtslehre, Archiv des öffentlichen Rechts, 102
(1977), p. 161–209; M.-E. Geis, Der Methoden- und Richtungsstreit in der Weimarer Staatslehre,
Juristische Schulung, 29 (1989), p. 91–96.
5
R. Grau, Diktaturgewalt und Reichsverfassung, in: Gedächtnisschrift für Emil Seckel, Berlin
1927, p. 430–494; H. Nawiasky, Die Auslegung des Art. 48 der Reichsverfassung, Archiv des
öffentlichen Rechts, 9 (1925), p. 1–55.
6
E.R. Huber, Deutsche Verfassungsgeschichte seit 1789, die Weimarer Reichsverfassung, Stuttgart–
Berlin–Cologne–Mainz 1981, p. 716; K.D. Bracher, Die Auflösung der Weimarer Republik, eine
Studie zum Problem des Machtverfalls in der Demokratie, Düsseldorf 1984, p. 51; E. Kennedy,
Constitutional failure, Carl Schmitt in Weimar, Durham–London 2004, p. 161; C. Rossiter,
Constitutional dictatorship, Crisis government in the modern democracies, New York 1963, p. 69.
7
Stolleis, Geschichte des öffentlichen Rechts (supra, n. 3), p. 189. Cf. Bracher, Auflösung (supra,
n. 6), p. 51.
M. de Wilde / Tijdschrift voor Rechtsgeschiedenis 78 (2010) 135-158 137
for its careful analysis of sources, yet fails to determine their historical signi-
ficance8. The reason for this hiatus might be that the debate in Jena does not
seem to have touched upon what is considered the main constitutional cause
of the Republic’s downfall, i.e., the fatal combination of the President’s
emergency power with his rights to dissolve the Reichstag (Art. 25) and to
appoint the Chancellor and his Ministers (Art. 53), which enabled him to
gradually rule out parliament and to establish a less democratic and more
authoritarian type of government after 19309. Yet, as I will argue, the discussion
at the Jena Conference did testify to the very mentality that made this transition
possible, i.e., the willingness to downplay the importance of the constitutional
text in favor of what was considered its ‘political substance’.
The lack of interest in literature might also be explained by the suggestion
of some authors that the ‘conflict of methods and direction’ would not erupt
until the more famous conferences in Münster (1926) and Munich (1927),
where the antipositivist and the positivist direction were to clash in all vehe-
mence10. Manfred Friedrich, for instance, argues that the discussion topic of
the conference in Jena, i.e., the President’s emergency power of Art. 48, ‘did
not yet produce the demand for a new methodological orientation’, which
he explains by pointing out that the Weimar Republic had just entered more
quiet years, in which the state of emergency had become ‘superfluous’, and
also by observing that both speakers at the conference in Jena presented their
arguments as provisional in view of a statute they expected to be promulgated.
In comparison to the discussion topic of the Jena conference, Friedrich
concludes, those of the conferences in Münster and Munich provided an
‘incomparably greater polemical incentive’11.
Although it is certainly true that the confrontation between positivists and
anti-positivists had not yet fully erupted, I believe that the debate in Jena was
important to setting the stage for these later controversies. For instance, it
was no coincidence that Schmitt’s main critic in Jena, Hans Nawiasky, was
close to Hans Kelsen12. In his Hauptprobleme der Staatsrechtslehre, entwickelt
aus der Lehre vom Rechtssatze (1911), Kelsen had formulated positivism’s most
8
P. Blomeyer, Der Notstand in den letzten Jahren von Weimar, die Bedeutung von Recht, Lehre
und Praxis der Notstandsgewalt für den Untergang der Weimarer Republik und die Machtübernahme
durch die Nationalsozialisten, Berlin 1999, p. 100–120.
9
Ibid., p. 14; Cf. Bracher, Auflösung (supra, n. 6), p. 47–57.
10
Stolleis, Geschichte des öffentlichen Rechts (supra, n. 3), p. 189.
11
Friedrich, Methoden- und Richtungsstreit (supra, n. 4), p. 186.
12
Nawiasky had been educated in Vienna. As Hans Zacher writes: ‘Scientifically, he soon
belonged to the circle surrounding Hans Kelsen, whose “Reine Rechtslehre” he continued to
support during his life, without sharing Kelsen’s strictness or enthusiasm’; H.F. Zacher, Hans
Nawiasky, in: Juristen im Portrait, Festschrift zum 225-jährigen Jubiläum des Verlages C.H. Beck,
Munich 1988, p. 599. Cf. H.F. Zacher, Hans Nawiasky (1880–1961), Ein Leben für Bundesstaat,
Rechtsstaat und Demokratie, in: Deutsche Juristen jüdischer Herkunft, ed. H. Heinrichs et al.,
Munich 1993, p. 677–692.
radical methodological program yet, arguing that legal science had to deal
exclusively with norms that were ‘objectively valid’, independent of their
ethical or moral rightness, and that could not be derived from de facto or
causal relations13. Although meant as an epistemological challenge to positivism
itself, Kelsen’s doctrine would provoke the criticism of a new generation of
legal scholars and contribute substantially to the emergence of the anti-
positivist movement14. What united anti-positivists such as Rudolf Smend,
Hermann Heller, and Carl Schmitt, in spite of many important differences,
was their rejection of Kelsen’s methodological ban on historical, ethical and
political arguments in legal science. Instead, they suggested that legal science
had to start where Kelsen had declared that it ended: by examining the
‘existential reality’ that preceded the norms and that guaranteed their force
and applicability15.
In the early-1920s, however, methodological frontlines had yet to be
defined, and oppositions were still latent and diffuse. Although Nawiasky
and Schmitt already embodied the emerging confrontation between positivism
and antipositivism, their allies, in a way, blurred the distinction. Thus, Schmitt’s
co-speaker and ally Jacobi, who proposed a slightly more moderate version
of the doctrine of derogation, was considered a legal positivist. Conversely,
Grau, who came to support Nawiasky, took some distance from positivism,
presenting himself as spokesman of a ‘kind of natural law’. Neither of them
embraced the radical Kelsian view of positivism that ethical and political
considerations had to be completely ruled out from legal interpretation. Yet,
they did not accept the opposite view of anti-positivism either, that all
significant concepts of the theory of the state were thoroughly political or
ethical. In the emerging ‘conflict of methods and direction’, then, there were
still those who held the middle ground, crossing methodological dividing
lines. Only after the conferences in Münster and Munich would this middle
ground become gradually less inhabitable.
However, at stake in Jena were not only methodological questions. Rather,
the debate on Art. 48 Weimar Constitution proved a dress-rehearsal for events
that would later herald the Republic’s end. After Weimar’s last majority
cabinet had fallen in the Spring of 1930, and parliament failed to build a
viable new coalition, President Paul von Hindenburg took refuge in Art. 48,
appointing a minority cabinet that governed through emergency decrees. In
the following years, this practice of emergency government was continued,
leading to an increasingly authoritarian regime and the gradual erosion of
Weimar’s democratic institutions. The anti-positivists contributed to these
13
H. Kelsen, Hauptprobleme der Staatsrechtslehre, entwickelt aus der Lehre vom Rechtssatze,
Tübingen 1911, p. 8, 11.
14
Stolleis, Geschichte des öffentichen Rechts (supra, n. 3), p. 157.
15
P.C. Caldwell, Popular sovereignty and the crisis of German constitutional law, the theory and
practice of Weimar constitutionalism, Durham–London 1997, p. 120ff.
developments by making the meaning of Art. 48 dependent on the political

situation: Schmitt, for instance, welcomed the Presidential system, arguing
that Art. 48 gave the President a lawmaking power if parliament failed to
take its legislative responsibility16. In their turn, faced with electoral successes
of political parties openly hostile to the constitution, positivists had no other
option than to tolerate the practice of emergency government. By reducing
the discussion about Presidential emergency power to the options of positivist
neutrality and anti-positivist politicization, the Jena debate appears to have
been symptomatic for the very mentalities that would later cause the Republic’s
decline.
Before I describe the debate in Jena in more detail, a conceptual remark
seems necessary: in the discussion on Art. 48, both positivists and anti-
positivists tended to refer to the President’s dictatorship as an institution they
considered legal and legitimate; following Hugo Preuss, they spoke of a
verfassungsmässige Diktatur, a dictatorship that was in accordance with the
constitution. That the dictatorship as such was believed to be legitimate and
legal might seem awkward to us, as we have become familiar with the totalitarian
dictatorships of fascism and communism and their fatal consequences. Yet,
with their notion of a constitutional dictatorship, the lawyers and scholars
of the Weimar Republic were, in fact, linking up with an age-old tradition
going back to Rome and even beyond, that, at the time, had not yet become
tainted by excesses that would later discredit the institution of dictatorship17.
Therefore, both positivists and anti-positivists agreed that the institution of
constitutional dictatorship, as such, was legitimate and in accordance with
the law. The opinions only diverged on the question as to how it should be
limited.
1. – Criticizing the doctrine of inviolability: Carl Schmitt and Erwin

Jacobi
In its first five years, the Weimar Republic was plagued by chronic political
turmoil, a foreign occupation, and an unprecedented financial breakdown18.
To cope with these crises, the authorities sought refuge with the state of
emergency on no less than 135 occasions, issuing emergency decrees and
calling upon the military to intervene in civil affairs on the basis of Art. 48
Weimar Constitution19. Particularly in 1920, the President made repeated
16
C. Schmitt, Der Hüter der Verfassung, Berlin 1969, p. 131.
17
Rossiter, Constitutional dictatorship (supra, n. 6); F. Saint-Bonnet, L’État d’exception, Paris
2001.
18
H.A. Winkler, Weimar, die Geschichte der ersten deutschen Demokratie, München 1993,
p. 13ff. E. Kolb, Die Weimarer Republik, München 1993, p. 9ff.
19
F. Poetz-Heffner, Vom Staatsleben unter der Weimarer Verfassung, erster Bericht, vom 1. Januar
1920 bis zum 31. Dezember 1924, Jahrbuch des öffentlichen Rechts, 13 (1925), p. 141ff.
use of Art. 48 in suppressing communist insurrections in several German

states, authorizing martial rule, and suspending fundamental rights by allowing
for summary arrests and detentions, the prohibition of public assemblies, and
the censorship of newspapers. He even established special courts that could
impose the death penalty for crimes against the state.
Moreover, the practice of emergency government did not remain limited
to the classical cases of war and civil strife. Instead, the President also employed
his emergency powers to deal with economic and financial crises. In 1923,
the year of Weimar’s first financial crisis, a series of emergency decrees was
issued, forbidding the speculation in foreign currencies, regulating the market
for scarce goods, and introducing severe punishments for tax fraud20. In fact,
the majority of these emergency decrees found its legal basis not in Art. 48,
but in so-called Ermächtigungsgesetze [enabling acts] through which the
Reichstag expressively authorized the executive to issue ordinances with the
force of law. Following the example of the German war economy, President
Ebert and Chancellor Wirth argued that ‘public safety and order’ as mentioned
in Art. 48 could be ‘seriously disturbed and endangered’ not only by political
but also by financial and economic crises. This widening of the scope of Art.
48 proved crucial, for now there was nothing to prevent executive legislation
in other domains as well21.
Thus, when two of the key note speakers at the Conference of the Association
of German Constitutional Lawyers addressed the question of executive emer-
gency power, they did not engage with a merely theoretical issue, but, rather,
intervened in a topical and highly politicized debate. The focus of their
discussion was the interpretation of Art. 48:2, which reads: ‘If the public
safety and order in the German Reich are seriously disturbed or endangered,
the President of the Reich may take the measures necessary for the restoration
of public safety and order, and may, if necessary, intervene with the armed
forces. To his end he may temporarily suspend in whole or in part the
fundamental rights established in Articles 114 [inviolability of person], 115
[inviolability of domicile], 117 [secrecy of communication], 118 [freedom
of opinion and of expression thereof], 123 [freedom of assembly], 124 [freedom
of association], and 153 [inviolability of property]’22.
At the time, the prevailing interpretation of Article 48:2 was the so-called
‘doctrine of inviolability [Unantastbarkeitslehre]’, which had been first
20
Blomeyer, Notstand (supra, n. 8), p. 81–84.
21
Rossiter, Constitutional dictatorship (supra, n. 6), p. 42.
22
‘Der Reichspräsident kann, wenn im deutschen Reiche die öffentliche Sicherheit und
Ordnung erheblich gestört oder gefährdet wird, die zur Wiederherstellung der öffentlichen
Sicherheit und Ordnung nötigen Maßnahmen treffen, erforderlichenfalls mit Hilfe der bewaff-
neten Macht einschreiten. Zu diesem Zwecke darf er vorübergehend die in den Artikeln 114,
115, 117, 118, 123, 124 und 153 festgesetzten Grundrechte ganz oder zum Teil außer Kraft
setzen’; Die Verfassung des Deutschen Reiches vom 11. August 1919, Art. 48:2, trans. Rossiter,
Constitutional dictatorship (supra, n. 6), p. 31.
formulated by Richard Grau in his 1922 monograph on the President’s

dictatorship23. Grau argued that the second sentence of Art. 48:2 containing
the enumeration of fundamental rights had a limiting function, in that those
Articles of the Constitution that were not explicitly mentioned had to be
considered non-derogable. ‘The adding of this sentence’, Grau argued, ‘can
only mean that the President should be permitted to do something which is
not yet included in his power to take the necessary measures. Therefore, it
connotes an exception to a limitation’24. The President’s emergency power,
then, was thought to be restricted by the Constitution’s inviolability, the
only exception being that the Constitution itself, in the second sentence of
Art. 48:2, had explicitly authorized the President to suspend some of its
provisions regarding fundamental rights.
Grau gave three arguments in support of his reading. The first was historical:
he pointed out that the immediate predecessors of Art. 48 Weimar Constitution,
i.e., Art. 111 of the Prussian Constitution of 1850 and Art. 68 of the Con-
stitution of 1871, had both contained provisions authorizing the executive
to suspend some of its Articles in the state of emergency. However, since the
executive’s emergency power had itself been regulated in an ordinary statute,
the Belagerungszustandsgesetz of 1851, the executive was not believed to be
allowed to derogate from other Articles than those explicitly enumerated. In
view of this, Grau concluded, it was unlikely that the Weimar Constitution
had provided less protection against executive emergency power than its
predecessors25. Grau’s second argument was logical-grammatical: using an
argumentum e contrario, he pointed out that the mere fact that some Articles
of the Constitution were explicitly mentioned in Art. 48:2 as being derogable
could only imply that the others were not. His third and final argument was
systematic: Grau argued that Art. 76 prescribed an exclusive procedure for
amending the Constitution; the measures the President was allowed to take
on the basis of Article 48:2 did not fulfill these formal requirements26.
At the conference in Jena, Grau’s arguments were sharply criticized by
Schmitt and Jacobi. Referring to Grau’s monograph on the President’s dic-
tatorship, they claimed that the doctrine of inviolability was flawed, since it
failed to do justice to both legal theory and practice. Their parallel criticism
appears to have been coordinated, though they came to slightly different
conclusions. Thus, Schmitt held that ‘an effective state of emergency would
23
R. Grau, Die Diktaturgewalt des Reichspräsidenten und der Landesregierungen, Berlin 1922,
p. 50–58.
24
‘Die Hinzufügung des Satzes kann nur bedeuten, dass dem Reichspräsidenten etwas erlaubt
werden soll, was in der Befugnis zum Treffen der nötigen Maßnahmen noch nicht enthalten
ist. Sie bedeutet also eine Ausnahme von einer Beschränkung’; ibid., p. 51. Translations are
mine unless otherwise indicated.
25
Ibid., p. 51–53.
26
Ibid., p. 54–55.
be impossible, if, apart from the seven fundamental rights of the second
sentence, every other Article of the Constitution would be an insurmountable
barrier to the President’s acts’27. In his turn, Jacobi claimed that ‘with the
prevailing doctrine the general proposition [can] never be derived from Article
48, paragraph 2 … that all the Articles of the Constitution that have not
been explicitly enumerated have been withdrawn from an intervention by
the President of the Reich’28. Contrary to Grau’s ‘doctrine of inviolability’,
then, Schmitt and Jacobi argued that Art. 48:2 allowed the President to
derogate from constitutional provisions that had not been explicitly enumerated.
In his lecture, Schmitt did not systematically engage with Grau’s doctrine
of inviolability, yet he did implicitly counter each of his arguments. Had
Grau referred to legal history to illustrate a continuous development toward
more protections against executive emergency power, Schmitt emphasized
the revolutionary character of the Weimar Constitution, arguing that, contrary
to its predecessors, it had been enacted in response to ‘exceptional circumstances’
that demanded exceptionally wide emergency powers29. Schmitt also refuted
Grau’s logical-grammatical argument, claiming that the argumentum e contrario
applied to Art. 48:2 in part only, because it affected only the suspension of
rights, not other emergency measures30. Finally, Schmitt countered Grau’s
systematic argument: whereas Grau had argued that Art. 76 prescribed an
exclusive procedure for amending the Constitution, Schmitt pointed out that
this did not exclude emergency measures that made exceptions to constitutional
provisions without amending them31. Contrary to Grau, then, Schmitt con-
cluded that Art. 48:2 did not prevent the President from derogating from
other constitutional provisions than those explicitly mentioned.
In his lecture, however, Schmitt went well beyond Grau’s arguments. He
started by observing that, in legal practice, the President had, in fact, frequently
violated – and been allowed to violate – other constitutional provisions than
those enumerated in Art. 48:232. As an example, Schmitt mentioned the
President’s decision to establish ‘exceptional courts’ to deal with enemies of
the Reich in 1920, which had been contrary to Art. 105 that explicitly
prohibited such courts. Some of the emergency decrees issued during the
27
‘Ein wirksamer Ausnahmezustand würde unmöglich, wenn außer den Sieben Grundrechten
des Satz 2 jeder andere Artikel der Verfassung dem Vorgehen des Reichspräsidenten eine
unüberwindliche Schranke entgegensetzte’; Schmitt, Die Diktatur des Reichspräsidenten (supra,
n. 2), p. 214.
28
‘Mit der herrschenden Lehre [kann niemals] aus Art. 48 Abs. 2 … der allgemeine Satz
abgeleitet werden, dass alle nicht ausdrücklich aufgezählten Verfassungsartikel dem Eingriff
des Reichspräsidenten entzogen seien’; Jacobi, Die Diktatur des Reichspräsidenten (supra, n. 2),
p. 117.
29
Schmitt, Die Diktatur des Reichspräsidenten (supra, n. 2), p. 231.
30
Ibid., p. 223.
31
Ibid., p. 241.
32
Ibid., p. 216.
1923 financial crisis appeared to have violated constitutional rights as well,

such as the freedom of trade guaranteed by Art. 151. However, according to
Schmitt, more important than these incidental cases was the fact that the
underlying principle of Art. 48 – that in case of an emergency, power was
concentrated in the President – appeared to be incompatible with the separation
of powers and the federal structure characteristic of the Reich. Therefore,
Schmitt concluded, it was simply unthinkable that the Constitutional Assembly
had intended to bind the President to all constitutional rule-of-law provisions,
for, in that case, the concentration of power essential to emergency government
would not have been possible at all33.
To support this conclusion, Schmitt referred to the letter of the constitutional
text. He observed that the phrasing of Article 48:2 did not suggest an exhaustive
account of the President’s emergency authorities. Rather, whereas the first
sentence spoke of ‘measures necessary to the restoration of public safety and
order’, the second referred to the ‘suspension of fundamental rights’. As Schmitt
pointed out, in legal practice, the term ‘suspension’ had a specific meaning,
i.e., to cancel temporarily the force of a norm for oneself and for ‘every
competently acting authority [jede zuständigerweise handelnde Behörde]’34. By
contrast, the term ‘measure’ indicated a mere departure from the norm, i.e.,
an exception to the norm, without its force being cancelled. In the latter case,
only he who was explicitly authorized to take the measure was temporarily
exempted from the norm, in the sense that he could make an exception to
it, while it remained in force for others. Therefore, Schmitt suggested that
the President had, in fact, two powers derived from Article 48:2: a general
authority to take measures, and a specific authority to suspend certain funda-
mental rights. While his specific authority was limited to those rights mentioned
in Art. 48:2, this limitation did not apply to his general authority: in other
words, the President could take measures that deviated from other constitutional
provisions, and even from fundamental rights, as long as he did not suspend
those provisions35.
In Schmitt’s view, this did not mean, however, that the President’s authority
to take measures was unlimited. Instead, Schmitt proposed three limits which
he believed were inherent in the constitution itself. First, the President’s
emergency measures were conditioned by their purpose, that is, they had to
be necessary for ‘the restoration of public safety and order’. This implied that
the President was not allowed to use his power to other ends. Nor could he
decide by himself what the normal order consisted of, for this was already
determined by the constitution itself36. Second, the President’s emergency
measures could not violate what Schmitt called the ‘organizational minimum’
33
Ibid., p. 216–217.
34
Ibid., p. 224.
35
Ibid., p. 227.
36
Ibid., p. 242.
that was presupposed by Art. 48. As he pointed out, Art. 48 itself presupposed
the normal functioning of the President, the Government, and the Reichstag.
This meant, for instance, that, in order to be legal, the President’s emergency
measures had to carry a countersignature by a Minister as prescribed in Art.
50, so that the Minister or Government as a whole could be held accountable
by the Reichstag37. Third, the President was authorized only to take ‘measures’
meant to regulate specific cases and circumstances, not to create legal norms
that were essentially intended to express a principle of justice38. Therefore,
he could not, for instance, enact a new civil code, yet he could temporarily
suspend certain of its provisions39.
If the President respected these limitations, as Schmitt thought he should,
he was acting as a ‘commissarial dictator’, i.e., a dictator with the task of
defending the constitution, having only those powers necessary to his task40.
With his notion of a ‘commissarial dictatorship’ Schmitt drew on theoretical
arguments that he had already presented elsewhere. In Die Diktatur (1921),
Schmitt made a distinction between, on the one hand, a ‘commissarial dic-
tatorship [kommissarische Diktatur]’ which suspended ‘the constitution in
concreto in order to protect its concrete existence’ and, on the other, a ‘sovereign
dictatorship [souveräne Diktatur]’ which aimed at creating a different political
situation, in which it became possible to impose a new constitution41. Referring
to this distinction, Schmitt, in his Jena lecture, argued that the President’s
emergency power under Art. 48 was to be regarded as a ‘commissarial dic-
tatorship’, because it was authorized and limited by the constitution itself42.
According to Schmitt, however, this did not yet adequately characterize
the dictatorship of Art. 48. Schmitt attached much weight to the fact that
Art. 48 had been intended as a provisional rule. Thus, paragraph 5 announced
a statute that was to regulate the state of emergency in further detail, yet this
statute was never enacted. According to Schmitt, this explained the extensive
power allowed the President under Art. 48:2: a limitation of the President’s
dictatorship with respect to rule-of-law provisions had not yet taken place,
37
Ibid., p. 243–244.
38
According to Schmitt’s definition, a measure is ‘determined by a concretely given state of
affairs and completely governed by its material purpose …, so that it [has] a different content
from case to case according to the circumstances and no true legal form [durch eine konkret
gegebene Sachlage bestimmt und ganz von einem sachlichen Zweck beherrscht …, so dass es
nach Lage der Sache von Fall zu Fall verschiedenen Inhalt und keine eigene Rechtsform hat]’:
Ibid., p. 97.
39
Ibid., p. 247.
40
The German adjective ‘kommissarisch’ refers to someone who performs a task in commission,
and who temporarily has the authority required by his task (an authority he does not normally
have). Thus, the commissarial dictator performs the task of defending the constitution, and he
has the authority of a dictator to the extent in which – and as long as – it is required by his
task.
41
C. Schmitt, Die Diktatur, Berlin 1994, p. 133–134.
42
Schmitt, Die Diktatur des Reichspräsidenten (supra, n. 2), p. 239.
because the statute regulating and limiting his authority had not yet been
enacted. As Schmitt suggested, the making of this law had been deliberately
postponed, because the President was believed to be in need of exceptionally
wide emergency powers as long as the abnormal circumstances of the Republic
continued. Therefore, Schmitt argued that the President’s emergency power
of Article 48:2 was de jure a ‘commissarial dictatorship’, yet he also claimed
that it had been left open and unregulated on purpose, so that it could ‘operate
in fact, not in its legal justification, as the residue of a sovereign dictatorship’43.
Schmitt’s criticism of the doctrine of inviolability was shared by Erwin
Jacobi, who, in his lecture at the conference in Jena, proposed to replace it
with what he called a ‘doctrine of derogation [Durchbrechungslehre]’44. Like
Schmitt, Jacobi believed that categorically binding the President to the rule-
of-law provisions of the Constitution was unwise and impractical as long as
the exceptional circumstances of the Republic appeared to be the rule. Yet,
whereas Schmitt had suggested that all the rule-of-law provisions of the
constitution could be temporarily cancelled in order to save the constitution
itself, Jacobi, although sharing his criticism of the doctrine of inviolability,
sought to determine more precisely which Articles of the constitution were
derogable and which were not. Contrary to Schmitt, then, Jacobi did not
seem to recognize the traces of a sovereign dictatorship in the emergency
power assigned to the President of the Reich, even though he believed, with
Schmitt, that the historical circumstances required the President to have an
‘exceptionally wide’ emergency authority45.
Jacobi criticized Grau’s doctrine of inviolability for not having taken into
account several important conceptual distinctions. First, he argued, it was
necessary to distinguish between ‘amendments to the constitution [Verfassungs-
änderungen]’, ‘suspensions of the constitution [Verfassungssuspensionen]’, and
‘derogations from the constitution [Verfassungsdurchbrechungen]’46. As Jacobi
pointed out, Art. 48:2 did not authorize the President to make amendments
to the constitution, yet it did allow him to derogate from its provisions, the
difference being that derogations were meant to be temporary only (and could
thus be considered ‘measures’ in the sense of Art. 48:2), whereas amendments
were intended to have a more sustainable character. Moreover, to derogate
from a constitutional provision was not the same as to suspend it, the effect
of suspension being that the rule temporarily lost its force, in the sense that
all competently acting authorities were released from it, whereas derogation
left the rule itself in force and did not affect the legal position of those other
than the President himself and those operating directly under his authority.
43
‘In der Sache, nicht in ihrer rechtlichen Begründung, wirkt sie wie das Residuum einer
souveränen Diktatur’: Ibid., p. 239.
44
Jacobi, Die Diktatur des Reichspräsidenten (supra, n. 2), p. 116.
45
Ibid., p. 135.
46
Ibid., p. 109.
Jacobi concluded that Art. 48:2 authorized the President to derogate from
just about every constitutional provision, yet it allowed him to suspend only
those rights that were enumerated in the second sentence.
The second distinction Jacobi made was between ‘fundamental rights
[Grundrechte]’ and the ‘organizational provisions [organisatorische Bestim-
mungen]’ of the constitution47. According to Jacobi, the measures the President
could take on the basis of Art. 48:2 could derogate from ‘organizational
provisions’, such as, for instance, the distribution of power between Reich
and States as prescribed by Arts. 5, 14, 15, and 78 ff. Jacobi gave a historical
reason for this, pointing out that the President’s general authority to take all
the ‘necessary measures’ had to encompass, at the least, the rights of the
military commander under the old Constitution, to whom all executive power,
including that of the States, was temporarily transferred in case of an emer-
gency.48 Moreover, contrary to the old Constitution, the Weimar Constitution
provided the President with a general authority to take all the ‘necessary
measures’, thereby widening the scope of his power to encompass the right
to derogate from every organizational provision, which, Jacobi believed, was
in accordance with the constitution’s ‘historical-political constellation’49.
Yet, while Art. 48:2 authorized the President to derogate from organizational
provisions, it did not encompass the right to derogate from fundamental
rights. The reason for this, Jacobi argued, was that some of the fundamental
rights contained in the constitution already provided for their own derogation,
prescribing that it was possible by means of a federal statute [Reichsgesetz].
Since the President’s emergency measures, though having force of law, could
not be considered federal statutes in the sense of the Constitution, Jacobi
47
Ibid., p. 110.
48
Art. 68 of the Constitution of 1871 reads: ‘If the public safety in the federal territory is
threatened, the Emperor may declare any part thereof to be under martial law. Until the
publication of a statute regulating the conditions, the form of announcement, and the effects
of such a proclamation, the provisions of the Prussian statute of 4 June 1851 shall be in force
[Der Kaiser kann, wenn die öffentliche Sicherheit in dem Bundesgebiete bedroht ist, einen
jeden Theil desselben in Kriegszustand erklären. Bis zum Erlaß eines die Voraussetzungen, die
Form der Verkündigung und die Wirkungen einer solchen Erklärung regelnden Reichsgesetzes
gelten dafür die Vorschriften des Preußischen Gesetzes vom 4. Juni 1851]’; Die Verfassung des
Deutschen Reiches vom 16. April 1871, Art. 68. Because the statute announced in Art. 68 was
never enacted, the Prussian statute of 4 June 1851 remained in force until 1918. Contrary to
Art. 48 Weimar Constitution, the Prussian statute testified to a military approach to the state
of exception, and a strict regulation of emergency power. Hence, under the law, a state of
exception could be proclaimed only in case of war or armed uprising, not in case of other threats
to public order, such as (the threat of) a natural disaster or a financial emergency. The proclamation
of the state of exception led to the immediate transfer of executive power from civil authorities
of both Reich and States to the military commander. Moreover, important fundamental rights
could be suspended, and military tribunals could be established. Finally, under § 9 of the
statute, the military commander had the right to issue emergency decrees and to penalize
offences against them. Cf. Blomeyer, Notstand (supra, n. 8), p. 62–64.
49
Ibid., p. 116.
concluded that they could not derogate from fundamental rights other than
those enumerated in Art. 48:2. According to Jacobi, then, the President was
not allowed any intervention in these other rights, neither by general ordinances,
nor by specific decrees or instructions. Here, Jacobi’s interpretation clearly
differed from Schmitt’s, in that the latter claimed that derogations from other
fundamental rights than those enumerated in Art. 48:2 were legal and acceptable
as long as they did not suspend those rights. By contrast, Jacobi argued that
the President could suspend only those rights enumerated in Article 48:2,
while interventions in other rights remained categorically refused to him,
even if they were not full-fledged suspensions but mere derogations50.
In spite of the difference, Jacobi did share Schmitt’s criticism of the doctrine
of inviolability, arguing that it was impossible that all Articles of the Con-
stitution that were not explicitly mentioned in Art. 48:2 were categorically
withdrawn from an intervention by the President in case of an emergency51.
For both Jacobi and Schmitt, then, Art. 48:2 authorized the President to
derogate from rule-of-law provisions of the Constitution, and in particular
from its organizational provisions, the main reason for this being that, in the
absence of such an authority, the state of emergency would remain impractical
and ineffective. In the end, the logic of the exception caused Schmitt and
Jacobi to claim that it was justified to derogate from the constitution’s rule-
of-law provisions to save the constitution’s political substance. This claim
would prove a major provocation to legal positivists, for it suggested that, in
the end, not law, but power was the true foundation of Weimar’s constitutional
order. Indeed, it would be perceived as a direct assault on one of positivism’s
main methodological assumptions, i.e., that legal norms and politics, law and
power, had to remain strictly separated.
2. – Criticizing the doctrine of derogation: Hans Nawiasky and Richard

Grau
It was not surprising, then, that the lectures by Schmitt and Jacobi provoked
a heated debate among those present. Unfortunately, the conference report
does not specify the names of those who intervened in the debate52. Ellen
Kennedy suggests that criticism was expressed not only by Nawiasky, but
also by other positivists, such as Anschütz, Thoma, and Fritz Stier-Somlo,
but there is, in fact, no evidence for this, except that they were among those
who attended the lectures53. Nawiasky himself reports that the participants
50
Ibid., p. 117.
51
Ibid., p. 117.
52
The conference report mentions only the names of those present, without specifying who
intervened in the discussion; Verhandlungsbericht zum Thema ‘Diktatur’, in: Veröffentlichungen
(supra, n. 2), p. 137.
53
Kennedy, Constitutional failure (supra, n. 6), p. 161.
in the debate had been ‘completely caught off guard by the new theses’,
therefore lacking the ‘opportunity to think over arguments and counterargu-
ments’54. Still, the conference report shows that criticism was expressed, and,
without saying much about specific arguments and counterarguments, it
suggests that the main objection formulated against the Schmittian-Jacobian
doctrine was that it had provided the President with an emergency power
that seemed to evade any attempt at legal regulation.
In particular, the speakers’ claim that a distinction was to be made between,
on the one hand, the ‘necessary measures’ of the first sentence of Art. 48:2
and, on the other, the ‘suspension’ of certain rights as mentioned in the
second sentence, so that the latter could not be understood as a limitation of
the former, was rejected by a majority of those present. According to the
conference report, the general opinion was essentially ‘that the measures of
the President of the Reich on the basis of the second paragraph could not
violate the constitution of the Reich, which has to be regarded as a whole
vis-à-vis his authority, and that the second sentence of paragraph 2 gave an
exhaustive account of the exceptions in force’55. According to the critics,
derogation from constitutional provisions other than those enumerated in
Art. 48:2 was inadmissible, because only the constitution itself could authorize
such derogation.
The criticism expressed at the conference was later specified in two lengthy
articles by Hans Nawiasky, a professor of constitutional law in Munich, and
Richard Grau, the Berlin-based lawyer who had first formulated the doctrine
of inviolability, which Schmitt and Jacobi had attacked in their lectures. Both
Grau and Nawiasky tried to reaffirm the constitutional limits to the President’s
emergency power, arguing that Art. 48 did not authorize the President to
derogate from the constitution’s rule-of-law provisions as long as these had
not been explicitly designated as being derogable by the constitution itself.
Both recognized the danger inherent in the Schmittian-Jacobian claim that
the President could derogate from the rule-of-law provisions of the constitution
to save its political substance, for they suspected that there might be nothing
but politics if the rule-of-law provisions were no longer directive. Yet, while
Nawiasky phrased his criticism in the language of positivism, suggesting that
Schmitt and Jacobi sought to politicize the law, Grau defended a somewhat
different position, which he described as a ‘kind of natural law’, arguing that
Jacobi and Schmitt failed to recognize the constitution’s ‘ideal content’.
As early as the Fall of 1924, Nawiasky had written down his criticism of
the ‘Schmittian-Jacobian doctrine’. His main objection against it was that
54
Nawiasky, Die Auslegung des Art. 48 (supra, n. 5), p. 3–4.
55
‘Die Meinung ging im wesentlichen dahin, dass die Maßnahmen des Reichspräsidenten auf
Grund des Abs. 2 die Reichsverfassung, die seinen Befugnissen gegenüber als eine Einheit
aufzufassen sei, nicht antasten dürfen, und dass der zweite Satz des Abs. 2 die hierin geltenden
Ausnahmen erschöpfend aufzähle’; Verhandlungsbericht (supra, n. 52), p. 138.
he expected it to lead to ‘undesirable consequences’. Among these, Nawiasky

deemed the risk of a President abusing his emergency power to rule beyond
accountability the most dangerous. An interpretation that leads to such
consequences, he argued, ‘cannot be in accordance with the meaning of this
constitution, it is not developed from it, flesh of its flesh, it is artificially added
to it, a foreign thorn that has to be pulled out’56. A foreign thorn, Nawiasky
suggested, was Schmitt’s notion of an ‘organizational minimum’; it was
nowhere to be found in the constitutional text. As Nawiasky pointed out,
the notion enabled Schmitt to rule out all those constitutional organs that
were not explicitly mentioned in Art. 48, such as the Reichsrat, the Govern-
ments of the States, and the Constitutional Court. The notion of an ‘orga-
nizational minimum’, he argued, could thus be used to justify a complete
dismantlement of the edifice of Reich and States, with the exception of some
‘isolated ruins’. ‘A President gone wild’, Nawiasky prophesied, ‘could even-
tually break through the defenseless maximum of Reich and State organiza-
tion like an apocalyptic horseman’57.
According to Nawiasky, the President could only be President in the sense
of the Constitution if his rule was restricted not merely by an ‘organizational
minimum’, but by other ‘constitutional factors’ as well. Reintroducing these
factors, Nawiasky sought to replace Schmitt’s notion of an ‘organizational
minimum’ with that of an ‘organizational maximum’. His main argument
was that there were no legal criteria that could be used to draw a line between
those parts of the constitutional organization that were essential and those
that were not. Hence, he suggested that Schmitt’s selection of essential organs
was arbitrary, i.e., not prompted by legal criteria, but by political preferences.
Presenting his argument in dogmatic terms, Nawiasky dramatized the con-
frontation between his own positivism and Schmitt’s anti-positivism: Schmitt
was suspected to have ventured beyond the limits of his discipline. He was
believed to have employed a ‘freely chosen political ideology’, rather than
criteria deriving from the constitution itself, to prioritize some of the consti-
tution’s organizational provisions at the expense of others58.
Nawiasky also criticized the technical distinction between ‘amendments’
and ‘derogations’ that Schmitt and Jacobi had employed in their analysis of
Art. 48:2. Both had argued that a mere exception to a constitutional provi-
sion could not yet be regarded as an amendment, since it lacked general
56
‘Diese [Konsequenzen] sind so ungeheuerlich, dass man wohl von vornherein sagen muss,
die Auslegung einer Bestimmung der RV, die zu solchen Ergebnissen führt, kann nicht im
Sinne dieser Verfassung gelegen sein, sie ist nicht aus ihr entwickelt, nicht Fleisch von ihrem
Fleisch, sie ist künstlich an sie herangetragen, ein fremder Pfahl, der herausgegraben werden
muss’; Nawiasky, Die Auslegung des Art. 48 (supra, n. 5), p. 11.
57
‘Ein wildgewordener Reichspräsident könnte auf einige Zeit wie ein apokalyptischer Reiter
über das wehrlose Maximum der Reichs- und Landesorganisation hereinbrechen’; ibid., p. 8.
58
Ibid., p. 13.
applicability and a sustainable character. By contrast, referring to a definition

by Heinrich Triepel and Alexander Graf zu Dohna, Nawiasky argued that
every law that was contrary to the ‘text of the constitution [Verfassungsurkunde]’
had to be considered an amendment. The reason for this, Nawiasky argued,
was that there was no material difference between derogations from the
constitution and amendments to it, since in both cases it was the rule itself
that was changed. What remained, then, was a merely formal difference: the
text of the constitution was changed in case of an amendment, while it
remained the same in case of derogation. As Nawiasky observed, this formal
distinction had not prevented Schmitt and Jacobi from proposing an entirely
new constitutional order without changing a letter of the constitutional text59.
Finally, Nawiasky objected to the Schmittian-Jacobian definition of a
‘measure’, which, he believed, was subjective and, therefore, again, in danger
of becoming political. According to Schmitt’s definition, what characterized
a ‘measure’ was that it lacked a ‘true legal form’ and that it was ‘completely
governed by its purpose’. The problem with this definition, Nawiasky argued,
was that it made the concept of a measure dependent on its content: what
constituted a measure in the sense of Schmitt’s definition was not its legal
form, but that it was governed by its purpose. Yet, as Nawiasky pointed out,
there were no legal criteria to determine whether a rule was governed by its
purpose or not. Rather, this seemed to depend entirely on the subjective
expectations of those implementing the measure; therefore, if there was any
legal category applicable to the President’s emergency measures, it had to be
that of a discretionary authority, which gave those affected by it few guarantees60.
In the end, Nawiasky’s critique of Schmitt and Jacobi came down to the
positivist objection that they had gambled away legal criteria in favor of
political considerations that seemed to be entirely their own, and that could
not serve as objective standards in constitutional law. Whereas Jacobi and
Schmitt had been prepared to sacrifice the rule-of-law provisions of the
constitution in order to save its political substance, Nawiasky reaffirmed these
rule-of-law provisions, arguing that they were a necessary limit to the President’s
emergency power, preventing him from creating a new constitutional order.
Against the possibility of derogation advocated by Schmitt and Jacobi, Nawiasky
thus emphasized the need to regard the constitution as an ‘inviolable whole’,
the parts of which had to be considered non-derogable as long as they were
not explicitly designated as derogable by the constitutional text itself. From
this perspective, Nawiasky concluded that Art. 48 had to be considered a
‘special norm [Sondernorm]’ to be interpreted in a narrow sense61. It was
believed to indicate precisely which rules were applicable to the state of
59
Ibid., p. 18.
60
Ibid., p. 28.
61
Ibid., p. 21 and 34.
emergency, setting strict limits to the President’s emergency power that

derived from the constitutional text itself.
Like Nawiasky, Richard Grau formulated a sharp criticism of the Schmit-
tian-Jacobian doctrine, while choosing the perspective of what he considered
a ‘kind of natural law’, rather than that of positivism. Arguing that a modern
constitution could be meaningful and effective only in so far as it responded
to an ‘ideal minimum of constitutional content’ present in public conscious-
ness, he suggested that it had almost the ‘features of natural law and [was] fit
to serve as substitute for natural law, in that the typical constitutional content
determined by it [could] be maintained as a kind of “as-if-natural law”’62.
However, as it turned out, these natural-law-like features of modern consti-
tutions were explained not by human nature, as the tradition of natural law
would have it, but by legal and political history. Thus, the Constitution of
the Weimar Republic was believed to be the outcome of a ‘rather straight-
lined development [ziemlich gradlinige Entwicklung]’, in which the executive
was subjected to ever more rule-of-law provisions. From this perspective, it
was simply improbable, as Grau suggested, that the Weimar Constitution
marked a rupture in legal and political history, as Schmitt and Jacobi claimed.
Grau’s main objection to the interpretation of Schmitt and Jacobi was that
they had failed to recognize that Art. 48 was essentially an ‘organizational
norm’. He rejected their argument that the fact that the President’s emergency
power of Art. 48 was contrary to some of the constitution’s fundamental
principles, such as the separation of powers and the federative structure of
the Reich, led to the logical conclusion that derogation from its rule-of-law
provisions had to be allowed63. Art. 48, he claimed, had to be interpreted
primarily from the perspective of its organizational function: it was meant
to provide the President of the Reich with an exceptional power, because the
normal organization of the Reich was insufficiently flexible to cope with a
major emergency. Yet, it did not follow from the fact that the President had
a special function in case of an emergency, a function at odds with the normal
62
The complete sentence reads: ‘So trägt die ideale Forderung nach einem typischen Verfas-
sungsinhalt geradezu naturrechtliche Züge und ist geeignet, als Ersatz für Naturrecht zu dienen,
indem der durch sie bestimmte typische Verfassungsinhalt als eine Art “Als-ob-Naturrecht”
gehandhabt werden kann’; Grau, Diktaturgewalt und Reichsverfassung (supra, n. 5), p. 456.
Grau’s notion of an ‘as-if-natural law’ may have been inspired by Hans Vaihinger’s Die Philosophie
des Als Ob. Vaihinger argues that fictions, which are theoretically untrue or the truth of which
cannot be proven, can be useful to advance knowledge, in spite of their theoretical nullity. As
an example of the practical significance of fictions, Vaihinger discusses 17th-century theories
of natural law that are based on a hypothetical state of nature. Although the state of nature
itself cannot be proven, the idea has a practical relevance for justifying natural rights. Implicitly
referring to Vaihinger’s book, Grau suggests that it can be useful to regard a modern constitution
as if it originated from natural law (which cannot be proven), because this fiction may contribute
to the constitution’s legitimacy and effectiveness. Cf. H. Vaihinger, Die Philosophie des Als Ob,
System der theoretischen, praktischen und religiösen Fiktionen der Menschheit, Berlin 1913, p. 700ff.
63
Ibid., p. 439.
organization of the Reich, that he had the authority to take measures contrary
to the constitution. What Schmitt and Jacobi failed to see, then, was that
Art. 48 was primarily an ‘organizational norm’ that created an exceptional
organization within the boundaries of the constitution, without affecting the
force of its rule-of-law provisions64.
Developing Nawiasky’s criticism, Grau, moreover, argued that the distinc-
tion between derogation and suspension proposed by Schmitt and Jacobi did
not contribute anything to the question of the constitution’s inviolability,
because the distinction was merely formal, not material. What was decisive,
Grau believed, was that in both cases the scope of the norm was changed, in
the sense that the applicability of the norm was limited. Materially, it did
not matter whether a norm was suspended or derogated from, for, as Grau
observed, ‘one can suspend a norm in accordance with formal prescription
and still keep a considerable part of its scope in force; conversely, one can
preserve a norm formally and still withdraw its force almost completely or
even completely from it’65. Materially, then, the consequences of derogation
could be more far-reaching than those of suspension. Therefore, Grau con-
cluded, the Schmittian-Jacobian interpretation had to be flawed: for if the
President had the far-reaching general authority to derogate from constitu-
tional provisions, he would not have any practical need for an additional
authority to suspend certain fundamental rights, as the latter was already
implied by the former66.
In one respect, though, Schmitt had acknowledged the material effects of
suspension and derogation. He had pointed out that the suspension of a norm
had the effect of the norm becoming temporarily inoperative not only for
the President himself, but also for ‘every competently acting authority’. By
contrast, derogation was believed to have a more limited effect: it exempted
only the President himself and those operating under his direct authority,
while the norm remained in force for others. Grau criticized this interpretation,
because he believed that the material effects attributed to the suspension were
too vague and far-reaching. He argued that the practical purpose of the state
of emergency, i.e., the restoration of public safety and order, did not demand
that a constitutional norm could temporarily lose its force for ‘every competently
acting authority’. For this would mean that, for instance, the treasury or
health care department would also be exempt from the norm, even if they
had no function whatsoever in an emergency government. Therefore, Grau
concluded that the suspension of a norm under Art. 48 had a more limited
effect than Schmitt had suggested: it applied only to the President himself
64
Ibid., p. 451–452.
65
‘Man kann eine Norm verfahrensmäßig aufheben und doch einen erheblichen Teil ihres
Geltungsbereichs in Wirksamkeit lassen; umgekehrt kann man eine Norm formell bestehen
lassen und ihr doch ihre Geltungskraft nahezu ganz oder sogar gänzlich entziehen’; ibid., p. 469.
66
Ibid., p. 470.
and to those operating under his direct authority, while the norm remained
in force for every other organ of the Reich67.
Finally, Grau, like Nawiasky, criticized Schmitt’s notion of an ‘organizational
minimum’. Schmitt had argued that the President, although authorized to
derogate from constitutional provisions, could not violate the organizational
minimum presupposed by Art. 48 itself. Grau rejected Schmitt’s notion of
an ‘organizational minimum’, arguing that the coherence of constitutional
‘organs’ was so narrow that it would be arbitrary to designate some of them
as the organizational minimum at the expense of others. Such, at least, could
not be done without affecting the entire constitutional framework, Grau
suggested. Selecting some organs as an ‘organizational minimum’ would also
change the meaning of these organs themselves, he expected, for, isolated
from their original context, they were bound to ‘denaturalize in the strange
environment’68. Grau gave the example of the Reichstag, arguing that it could
fulfill its legislative task only in cooperation with the Reichsrat, even though
the latter was not mentioned in Art. 48 and thus had no part in Schmitt’s
organizational minimum. Making the Reichstag independent of the Reichsrat,
Grau claimed, would not only fundamentally change the constitutional
framework, but also the meaning of the organ itself. It would no longer be
the Reichstag of the constitution, but a ‘denaturalized organ’ of another,
more authoritarian constitution.
Criticizing the Schmittian-Jacobian doctrine, Grau and Nawiasky both
sought to reaffirm the constitutional limits to the President’s emergency
power. Both denied that the President could derogate from provisions of the
constitution other than those mentioned in Art. 48:2. Yet, in expressing their
critique, Nawiasky and Grau testified to different methodological convictions.
Nawiasky defended a strictly positivist view, accusing Schmitt and Jacobi of
having used political criteria in their explanation of Art. 48:2. By contrast,
Grau never denied that Art. 48:2 had a political background, and that its
meaning was dependent on both legal and political history. He, too, argued
that the President was bound by the rule-of-law provisions of the constitution,
yet, unlike Nawiasky, he believed that this responded to an ‘ideal minimum
constitutional content’ that was the result of political struggles from the past.
He thus regarded the constitution as the outcome of a historical development,
in which an increasing level of legal protection against executive emergency
power had been realized. This development, Grau suggested, had culminated
in Art. 48:2, which gave an exhaustive account of those rule-of-law provisions
that the President was allowed to suspend in case of an emergency.
67
Ibid., p. 476.
68
Ibid., p. 482.
Conclusion
The debate on the ‘dictatorship of the President’ that took place at the first
conference of the Association of German Constitutional Lawyers in Jena in
1924 bore witness to an emerging confrontation between positivists and
anti-positivists that was to haunt legal science in subsequent years. At the
conference, Schmitt and Jacobi criticized the prevailing doctrine of inviolability,
which regarded the constitution as an inviolable limit to the President’s
emergency power, and categorically rejected derogation from constitutional
provisions if it was not explicitly authorized by the constitution itself. Instead,
Jacobi and Schmitt advocated a doctrine of derogation, which allowed the
President to derogate from the constitution’s rule-of-law provisions, even if
an explicit authorization was lacking. The state of exception, they claimed,
could only be practical and effective if the President was allowed to make
exceptions to these provisions. Arguing that the President could derogate
from the rule-of-law provisions of the constitution in order to save its political
substance, they indirectly criticized one of the main methodological assumptions
of positivism, i.e., that the law had to remain neutral vis-à-vis politics and
power.
The conference report suggests that the ‘Schmittian-Jacobian doctrine’ was
generally perceived as a threat to positivism. According to the report, the
majority of those present rejected the doctrine, because it did not regard the
constitution as a ‘whole’, which the President could not violate. Nawiasky,
in particular, emphasized the methodological differences, accusing Schmitt
and Jacobi of having employed political criteria in their interpretation of Art.
48. For Nawiasky, the main example of this implicit politicization was Schmitt’s
notion of an ‘organizational minimum’, which prioritized some organizational
provisions of the constitution over others. As he observed, the constitutional
text itself lacked the criteria to support this prioritization, so that it had to
be based on Schmitt’s own preferences. Schmitt was thus accused of having
used a ‘freely chosen political ideology’, rather than criteria deriving from
the constitution itself, to define what he regarded as its essential content.
Choosing a positivist perspective, Nawiasky feared that, as soon as the con-
stitutional text was no longer guiding, politics would permeate the law, and
the constitutional system would become dependent on bare power.
Yet, at the time of the conference in Jena, the conflict between positivists
and anti-positivists was still emerging, and had not yet hardened into mutually
exclusive oppositions. Therefore, some participants in the debate still crossed
methodological dividing lines, and sought to unite the demands of law with
those of power, avoiding the alternatives of pure neutrality or politicization.
This was true of Schmitt’s co-speaker Jacobi, who claimed that the political
circumstances of the Weimar Republic required the President to have excep-
tionally wide emergency powers, yet simultaneously argued that these were
limited by the constitutional text itself, in the sense that the President was
allowed to derogate from its organizational provisions, whereas he had to
respect those provisions containing fundamental rights. Nawiasky’s co-critic
Grau, too, defended a position that differed from both positivism and anti-
positivism, arguing that the President had to respect the constitution’s rule-
of-law provisions, because they reflected a long history of legal and political
struggles. Both Jacobi and Grau believed that Art. 48 could not be understood
isolated from its political context, yet they also rejected the view that the
constitution was completely dependent on power, for the President was not
allowed to derogate from fundamental rights.
It would not take long before the issues that were debated in Jena became
vital questions. In the final years of the Weimar Republic, democracy gradually
eroded because of the President’s frequent appeal to Art. 48. After Weimar’s
last majority government had fallen in the Spring of 1930 over internal
disagreements about how to cope with the financial crisis, President Paul von
Hindenburg took refuge in Art. 48, declaring a state of emergency and
supporting minority cabinets that governed through emergency decrees. The
anti-positivists contributed to these developments by making the meaning
of Art. 48 dependent on the political situation: they attributed exceptionally
wide emergency powers to the President, which they justified by referring to
the Republic’s exceptional circumstances69. In their turn, the positivists had
no alternative but to silently support the practice of emergency government70.
In the national elections of 14 September 1930, anti-constitutional parties
(NSDAP, DNVP, and KPD) had surged ahead; they now occupied almost
69
Schmitt, for instance, defended Hindenburg’s decision, arguing that he had acted as ‘a
guardian of the constitution’ by preventing the constitutional order from falling prey to narrow
and conflicting party interests. Applying the criteria of his Jena lecture, he claimed that the
President’s emergency power was limited by parliamentary control, rather than by ‘normativities
and legally formed barriers’. However, if the Reichstag had become ‘the theatre of the pluralistic
system’, and failed to fulfill its legislative and controlling task, the President should take his
own responsibility, and legislate without parliament instead; Schmitt, Der Hüter der Verfassung
(supra, n. 16), p. 131.
70
For instance, Anschütz, referring to the developments since 1930, justifies the practice of
emergency government by arguing that the President may take refuge in his emergency powers
of Art. 48:2 if parliament fails to fulfil its constitutional duties: ‘The conditions of Art. 48, par.
2, are also given in case of the occurring of disturbances of the state, especially the parliamentary
apparatus that hinder or threaten a normal functioning of the legislative and executive activity
guaranteeing the public necessities (obstruction, impossibility of necessary majority formations,
other failure of the parliamentary system of government) [Die Voraussetzungen des Art. 48
Abs. 2 sind auch gegeben im Falle des Auftretens von Störungen des Staates-, insbesondere des
parlementarischen Apparats, die ein normales, die Staatsnotwendigkeiten sicherndes Funktionieren
der Gesetzgebungs- und Regierungstätigkeit verhindern oder gefährden (Obstruktion, Unmöglich-
keit notwendiger Mehrheitsbildungen, sonstiges Versagen des parlamentarischen Regierungs-
systems)]’: G. Anschütz, Die Verfassung des deutschen Reiches vom 11. August 1919, ein Kommentar
für Wissenschaft und Praxis, Berlin 1933, p. 279.
half of the seats in the Reichstag. Confronted by political parties that were
prepared to turn democracy against itself, the only option was to allow the
President to defend the constitution’s political substance, if necessary at the
expense of the constitutional text itself.
When these questions truly started to matter, neither positivists, nor anti-
positivists had a satisfying solution for the Republic’s survival. Instead, they
appeared paralyzed by their methodological convictions. By ignoring the
political substance of the constitution for the sake of its neutrality, positivists
threatened to undermine the President’s ability to counter those who questioned
its fundamental norms. Yet, by downplaying the importance of the constitu-
tion’s rule-of-law provisions in favor of its political substance, the anti-positivists
were in danger of denying constitutional limits to the President’s emergency
power, justifying the transition toward a more authoritarian regime. In the
end, neither of them, positivists nor anti-positivists, were able to defend
effectively Weimar’s constitution, and, if they did have any influence, it was
to accelerate, rather than restrain its decline.
There may also have been a more direct impact of the debate in Jena on
the events that heralded the Weimar Republic’s end. On 20 July 1932 Chan-
cellor Franz von Papen forcibly removed the Prussian State government from
office, installing himself as a Reich Commissioner for Prussia on the basis of
a Presidential emergency decree. The Papen-government justified the inter-
vention by claiming that the Prussian government had failed to restore pub-
lic peace and order after violent clashes had broken out between National
Socialists and Communists. In fact, the events of 20 July were nothing less
than a coup d’état71. The SPD-dominated Prussian cabinet led by Otto Braun
was one of the last republican forces in Weimar opposing the Presidential
system. By usurping the Prussian government’s powers, Papen not only
destroyed republican democratic opposition, but also acquired control over
the powerful Prussian police force72.
Papen’s intervention in Prussia was contested before the Constitutional
Court by the Prussian government and other parties. In the trial, Schmitt
and Jacobi, together with Carl Bilfinger, represented the Reich. The plaintiffs
consisted of parties with a stake in making sure that Art. 48 could not be
used to deprive a State government of its constitutional power: the Prussian
government, the Prussian Centre Party, and the Bavarian government.
Nawiasky represented the Bavarian government73. In his opening statement
71
D. Dyzenhaus, Legality and legitimacy, Carl Schmitt, Hans Kelsen and Hermann Heller in
Weimar, Oxford 2003, p. 28.
72
Ibid., p. 34; H. Grund, Preußenschlag und Staatsgerichtshof im Jahre 1932, Baden-Baden
1976; J. Bay, Der Preußenkonflikt 1932, Ein Kapitel aus der Verfassungsgeschichte der Weimarer
Republik, Erlangen 1965; Bracher, Auflösung (supra, n. 6), p. 510–518; Stolleis, Geschichte des
öffentlichen Rechts (supra, n. 3), p. 120–124.
73
Representing the Prussian government were Hermann Heller, Gerhard Anschütz, and Arnold
Brecht. The Centre Party was represented by Hans Peter.
for the Reich, Schmitt reaffirmed his anti-positivist interpretation of Art. 48:
he presented the deposition of the Prussian government and the transfer of
its powers to the Reich as an act of Presidential discretion that could not be
limited by the rule-of-law provisions of the constitution74. By contrast, in his
address to the Court, Nawiasky emphasized that the Weimar Constitution
had to be regarded as an inviolable whole, so that its federal character could
not be affected even in the state of exception. Nawiasky claimed that he had
felt ‘a stab in [his] jurist’s heart’ on hearing Schmitt’s argument that ‘merely’
positive norms could be ignored if political circumstances required this75.
The Court’s decision on 25 October brought a Pyrrhic victory for the
Prussian government. Although it kept some of its representative rights, its
executive power was transferred to the Reich Commissioner. The Court’s
decision confirmed not only the lawfulness of Papen’s intervention in Prussia,
but the legality of the Presidential system as such. Indeed, as David Dyzenhaus
argues, ‘had the court in fact declared the coup unconstitutional, this would
have caused the cloak of legality, under which Papen and Schleicher had
attempted to establish government by decree in Germany, to be torn apart’76.
This might have made it more difficult for the National Socialists to seize
power a few months later. Moreover, by robbing the Prussian government
of its executive power, the coup of 20 July and the Court decision of 25
October paved the way for the Gleichschaltung of States under National
Socialism. Therefore, these events have been aptly described as ‘decisive
turning point in the process of a shift of power leading from democracy
toward dictatorship’77.
With their anti-positivist interpretation of Art. 48, Schmitt and Jacobi
provided the Papen government – and with it, the Presidential system – with
an appearance of legality. They thus contributed to the transition from
democracy toward dictatorship. By contrast, Nawiasky unsuccessfully resisted
the coup on the basis of a positivist reading of Art. 48. He failed to convince
the Court that constitutional rights of State governments were inviolable
even if a State was on the verge of civil war. After Hitler seized power, Schmitt
made a considerable career as ‘crown jurist of the Third Reich’. He supported
the Nazi-regime with legal arguments, and published several explicitly anti-
Semitic essays. Although he fell out of favor with the Nazi-regime in 1936,
74
Preußen contra Reich vor dem Staatsgerichtshof, Stenogrammbericht der Verhandlungen vor dem
Staatsgerichtshof in Leipzig vom 10 bis 14 Oktober 1932, Berlin 1933, p. 39–40. Cf. Caldwell,
Popular sovereignty (supra, n. 15), p. 171–172; D. Blasius, Carl Schmitt, Preußischer Staatsrat
in Hitlers Reich, Göttingen 2001, p. 40–50.
75
Preußen contra Reich (supra, n. 74), p. 338. cf. Caldwell, Popular sovereignty (supra, n. 15),
p. 172–173.
76
Dyzenhaus, Legality and legitimacy (supra, n. 71), p. 32.
77
Bracher, Auflösung (supra, n. 6), p. 510.
he remained a party member until the end of the war78. By contrast, because
of their Jewish background, both Jacobi and Nawiasky were robbed of their
university positions. Both survived the war, Nawiasky by fleeing to Switzerland,
Jacobi by hiding in Leipzig and his hometown Zittau. Jacobi actively resisted
the Nazi-regime as a member of the bekennende Kirche79.
78
On Schmitt’s involvement in National Socialism: A. Koenen, Der Fall Carl Schmitts, Sein
Aufstieg zum Kronjuristen des Dritten Reiches, Darmstadt 1995. On Schmitt’s anti-Semitism:
R. Gross, Carl Schmitt und die Juden, eine deutsche Rechtslehre, Frankfurt am Main 2000.
79
M. Otto, Von der Eigenkirche zum Volkseigen Betrieb, Erwin Jacobi (1884–1965), Tübingen
2008, p. 231ff. Stolleis, Geschichte des öffentlichen Rechts (supra, n. 3), 286ff.

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Tijdschrift voor Rechtsgeschiedenis 78 (2010) 135-158

Revue d’Histoire du Droit 78 (2010) 135-158

The state of emergency in the Weimar Republic

* Faculteit der Rechtsgeleerdheid, Universiteit van Amsterdam, Postbus 1030, 1000

© Koninklijke Brill NV, Leiden, 2010 DOI: 10.1163/157181910X487341

declared the constitution ‘inviolable’ vis-à-vis the President’s emergency

developments by making the meaning of Art. 48 dependent on the political

1. – Criticizing the doctrine of inviolability: Carl Schmitt and Erwin

use of Art. 48 in suppressing communist insurrections in several German

formulated by Richard Grau in his 1922 monograph on the President’s

1923 financial crisis appeared to have violated constitutional rights as well,

2. – Criticizing the doctrine of derogation: Hans Nawiasky and Richard

he expected it to lead to ‘undesirable consequences’. Among these, Nawiasky

applicability and a sustainable character. By contrast, referring to a definition

emergency, setting strict limits to the President’s emergency power that

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