Updated 10/20/08
ASCHHEIM, Steven / “Iconising the Weimar
German-Jewish Intellectuals: Between the Critique of Liberalism and
the Theological Impulse” Remarkably, at the beginning
of the twenty first century, certain Weimar German-Jewish thinkers
– Theodor Adorno, Hannah Arendt, Walter Benjamin, Franz
Rosenzweig, Gershom Scholem and Leo Strauss – stand as central,
virtually iconic, figures of Western intellectual life. Celebrated
or castigated, canonized and critiqued, appropriated and
interpreted in manifold ways, dissected in minute and contested
detail, their presence and resonance has increased rather than
diminished with time. What accounts for this rather astonishing
phenomenon? The explanations, to be sure, are manifold. This paper
will focus on their representative role as “Weimar
intellectuals,” their search for (secular and religious)
salvationary visions beyond liberalism and the reasons for the
appeal of these quasi-theologies today.
BRAND, Oliver / “‘Drops of Socialist Oil’: The
Deprivatisation of Private Law in Weimar Germany?”
Private law in Weimar Germany is still observed by many through
distorted lenses. This paper advocates a more balanced approach to
German private law between 1919 and 1933. Distortion in its current
observation has at least three aspects. The first one is neglect.
Interest in Weimarian private law has always been eclipsed by the
interest in the Weimarian constitution and Weimarian political and
legal thought. The second aspect of distortion is retrospectivity.
Weimarian private law has for a long time been explained with
hindsight. Lead by Franz Wieacker's brilliant but suggestive
treatise on the History of Private Law in Europe, the corruption of
private law under the auspicies of the Nazi Regime used to be
explained as a necessary consequence of the failure of late 19th
century private law and consecutive mistakes made by Weimarian
private lawyers. The third distorting factor is a "mythic" approach
to Weimarian private law: In some respects it is believed to have
trodden on virgin ground (e.g. the rise of the judiciary as a major
force in the modelling of private law, the "emancipation" of
disciplines like labour law from general private law, the decline
of the autonomy of private law from public law etc.). Most of these
observations are myths. In fact, it is suggested, Weimar has been
more a catalyst to legal development in the field of private law
than a period that sparked great innovation.
This paper will try to demonstrate that distortion and
myths have been so persistent, because the leading actors of
Weimarian private law themselves liked to believe in them. The
discussion will begin with the greatest myth of German private law,
that the German Civil Code of 1900, the Bürgerliche Gesetzbuch,
was an outdated formalistic product of 19th century pandectism, was
based on selfish egoism, and protected the strong at the expense of
the weak. This criticism has been put forward in Imperial times
most prominently by Otto v. Gierke, who complained about "drops of
socialist oil" that lacked in the machinery of the Civil Code.
Gierke was a great inspiration for the Weimarians, who felt
strongly that German private law as out of touch with the needs of
the society in the inter-war period. Modern scholarship (Rückert,
Repgen), however, suggests that in fact the Civil Code provided all
the tools for a proper solution of the Weimarian dilemmas. In
deconstructing the myth that the Bürgerliche Gesetzbuch was out of
touch with the reality of Weimar Germany, other misconceptions
shall be addressed as well: The rise of the judiciary in Weimarian
times was favoured by the social and economic circumstances of the
time, yet it was foreseen and even necessitated by decisions taken
in adopting the Civil Code. Finally, even the alleged beginning of
a “de-privatisation” of German private law in Weimar by an ever
expanding domain of public law is a myth. As it is accepted in
America for some time, it shall be demonstrated that there never
was such a clear divide between the domains of private law and
public law in Germany as it is commonly claimed.
In the analysis, leading actors of Weimarian private law
will be introduced, leading decisions of the German Supreme Court
(Reichsgericht) will be put into context and the key issues in
Weimarian private law will be brought to light.
CALDWELL, Peter C. / “Sovereignty, Constitutionalism,
and the Myth of the State: Reflections on Article Four of the
Weimar Constitution” Article Four of the Weimar
Constitution stated that "The generally recognized rules of
international law are valid as binding constituent parts of the law
of Germany." The article had little effect on legal practice in the
Republic; it did, however, fuel a broad discussion among legal and
political theorists, for whom the Versailles Treaty constituted a
dramatic challenge to German sovereignty. This paper explores the
meaning of Art. 4 in the context of the underlying debate over the
nature of the Weimar state. I make the following points. First the
article's purpose was more on the level of propaganda than
politics. Second, courts and legal commentators consciously
neutralized its significance over the course of the Republic.
Third, the article posed the question of how state law and
international law related, indeed of whether international law
might in fact exist-and what state sovereignty meant, one of the
hottest questions of the Republic. Fourth, the article, despite
attempts to neutralize it, posed the problem of how domestic law,
constitutional law, and international law related. I will show this
with the example of the debate over the 1931 trial of Carl von
Ossietzky for revealing secret military programs that explicitly
violated the provisions of the Versailles Treaty.
CHRISTOPHERSEN, Alf / “Karl Barth, or: The Self-constructed
Churchly Isolation” In the fights over terminology and
rivalries on the interpretation of an era, Karl Barth played a
leading role during the Weimar Republic, National Socialism and
most notably the post-war era, in which he became the paradigmatic
theologian of the times, dominating his profession in both church
and academia. The experience of war and exile, the politicization
of theology and theological ennoblement of political caesurae are
the guiding themes of the interpretation of Karl Barth's biography
and writings. The experience of crisis during the upheavals of war
and revolution and an inspiring confluence of political and
theological visionary energies determined his writings during the
Weimar Republic. Only the focus on the overall theological
development, which demands precise, source-critical examination
allows for an adequate interpretation of the historicity of the
publications and their historic impact. Such a meticulously
arranged mosaic, composed of many individual components, can only
be retrospectively harmonized at the expense of substance, if not
at the risk of destruction. At any rate, politically correct
thought patterns are not appropriate to the comprehension of the
ambiguity and inconsistency of the past. From this vantage point,
the question to be answered is why the influence of the theologian
Karl Barth was confined to a comparatively narrow churchly context.
DE VRIES, Hent / “Adorno and the Future of
Immortality” In the final part of his Essais sur le
politique, the French political philosopher Claude Lefort compares
his reconstruction of the temporality of the political and its
institutions-which, in his view, represents a curious mixture
simultaneity of instantaneousness and permanence, of being
outside-of-time and within-time-with the aphorism that Theodor W.
Adorno devotes to idea of “immortality,” in his Minima Moralia.
In it, Adorno tackles not so much a classical theological topos, to
wit: the perpetuated existence of an individual, incorporeal soul
that had been a central theme of the metaphysica specialis, namely
philosophical psychology up until Kant (and which forms a central
focus of his meditations in the concluding sections of his magnum
opus, Negative Dialectics). Instead, Adorno addresses the social
construction and fate of personal, intellectual, and artistic fame,
that is to say, the “after-life” of “idols,” created by the
so-called culture industry and machinery of capitalist media
markets, whose products, he claims with barely veiled
condescension, lead to “nothingness”: indeed, they turn all
“posterity” into “conformity,” from which at that point
only “disinterested energy”-in Adorno’s view, the only thing
“capable of permanence”-can help to set us free.
Following Adorno, Lefort suggests that in modernity
immortality must come to signal, not so much the individual
soul’s (provisional or perennial) existence beyond the body’s
demise, but the persistence-and, in that sense, permanence, which
is not to say, eternity-of certain of its ideational attributes,
including the enduring affects they inspire and the more than
merely “ephemeral effects” they produce.
However, the theological trope of “immortality”-like
that of theologico-political “permanence”-cannot be substituted
with some strictly secular equivalent (as in the indefinite
continuation of the t+1), without suffering significant loss of
meaning. Even where it is no longer believed or believable as such,
the idea of immortality would still point thought-including
“thinking politics”-ahead of itself, in the direction of a
qualitatively understood “duration” and “substance,” whose
peculiar structure and density shapes the central features of
social space. Without this structure and density, we would atomize
and compartmentalize-and, hence, lose all track and traction
of-time.
The consequences of this view are wide-ranging. For one
thing, it means to revise all contractarian and utilitarian,
liberal and communitarian, procedural and pragmatist conceptions of
commonality and solidarity, justice and the rule of law, freedom
and democracy, and to strip them from their individualist and
presentist, vitalist and discursive, auditive as well as
ocularcentrist presuppositions and presumptions, all of which sway
“the invisible” under the carpet of the visible and stifle the
very thought of the political and of politics they seek to
summarize. Ignoring or repressing the “depth” of the past and
the extension-intension of the lateral and futural dimensions that
surround present subjects (persons and themes), they flatten, reify
and immobilize the revolutionary invention of the democratic
process and its prospects. This insight, shared by Adorno and
Lefort, has lost nothing of its actuality even though we may wish
to articulate it differently under present conditions.
DORRIEN, Gary / “Crisis Dialectics: The Barthian
Revolt as Theology and Politics” The major event of
twentieth-century theology was a Weimar moment, the Barthian
overthrow of the liberal establishment in the early 1920s. No
theological movement in Christian history effected a more dramatic
transformation of its inherited landscape than the one led by Karl
Barth. For two centuries the pressure of modern science and
historical criticism made the liberal strategy in theology seem
imperative. That presumption was overturned with astonishing
swiftness in the early 1920s, as Barthian “crisis theology”
replaced liberalism with a neo-Reformationist perspective that, in
Barth’s case, combined dialectical brilliance, spiritual power, a
prophetic edge, and a great and strange narrowness.
GIBBS, Robert / “Freedom, Democracy and the Rule of
Law” By focusing on the Rule of Law, I will re-open
questioning the relationship of freedom and democracy. My guide
will be David Dyzenhaus' 1997 study Legality and Legitimacy: Carl
Schmitt, Hans Kelsen, and Hermann Heller in Weimar. Heller, in his
account, offers the most robust justification for the rule of law
rooted in both a political and ethical account of law. That
questioning, moreover, reaches both forward to current questions in
theories of the liberal state, but also points back to the 19th
Century German Idea of Freedom. If Krieger's work showed how the
Idea of Freedom was unable to overcome the authoritarianism of the
German state, it also raises questions about the limits of an idea.
Democracy may be able to provide insight into the unresolvable
tension between ideas and power.
GORDON, Peter E. / “German Idealism and German Liberalism: The Case of Ernst Cassirer” On August 11, 1928, the philosopher Ernst Cassirer gave a public address before colleagues at the University of Hamburg in celebration of Weimar Constitution’s ninth anniversary. Cassirer was then at the height of his reputation. He was one of the leading philosophers not only in Germany but throughout Western Europe, and his status conferred upon the occasion a solemnity appropriate for an academic institution that owed its own founding in April 1919 to the Republic. Why take notice of Cassirer’s address today? I would like to suggest that it furnishes us with a brief but noteworthy illustration of how German Idealism could be interpreted in the 1920s and, more specifically, how German Idealism came to be affiliated with values of liberalism, democracy, and constitutional government. Cassirer’s arguments on behalf of German liberalism may strike us today as wildly unfamiliar. But they warrant our attention in part because they serve as an important corrective to the commonplace generalities of postwar Anglophone historiography which catalogued the manifold and ostensibly fatal disabilities of what Leonard Krieger once called “the German Idea of Freedom.” A noteworthy feature of that historiography was that it reserved a special place for German Idealism within the larger narrative of political pathology. Kant and Hegel in particular, it was argued, helped lay the foundations for a Sonderweg of political thought by which Germany diverged from the presumptive norms of Anglo-Saxon liberalism. A characteristic error of the Sonderweg theory, however, is that in attempting to portray a seamless intellectual tradition it neglected to acknowledge the contingency and openness of philosophical interpretation. The possibility that a philosophical formation as vast and complex as German Idealism could ramify in different ways at different moments in German history seemed entirely forgotten.
GREENBERG, Udi / “The Cold War as Constitutional Crisis: The Theological Politics of Carl J. Friedrich” Carl J. Friedrich is remembered today as one of the most influential anti-totalitarian intellectuals of the early Cold War, the chief legal adviser to the American occupation in Germany and one of the key agents in the country's postwar democratization. This paper, however, will focus on a neglected aspect of Friedrich's work, by showing how his Cold War concepts of democracy, dictatorship, representation, totalitarianism, and theology were shaped already in the Weimar period under the influence of a continuous dialogue with Carl Schmitt. From his early career and well into the 1950's, Friedrich, who was later to become an agent of democratization, had close personal and intellectual relations with the archconservative, authoritarian thinker, and a close look at their works and correspondence reveals a continuous bi-directional exchange of ideas. The paper will show how this is most apparent in Friedrich's neglected theory about the relations between German Calvinist theology and Western democracy, which he developed from the late 1920's on. Through the Friedrich-Schmitt dialogue, the paper will demonstrate how concepts that were shaped in the context of Weimar's constitutional debates were applied to new historical realities, and in turn helped to define the intellectual world of the early Cold War.
HERF, Jeffrey / “Critique and Apologia, Historical
Specificity and the Yearning for Generalization in the Frankfurt
School's Critical Theory” This paper explores the
relationship between historical specificity and theoretical
generalization the Frankfurt School’s analysis of Nazism. It
examines several essays Herbert Marcuse, Franz Neumann’s
Behemoth and Theodor Adorno and Max Horkheimer’s Dialetic of
Enlightenment. Each of these texts had origins in Weimar’s
political and intellectual climate. While they contained some
valuable insights, they all suffered from the displacement of
proper nouns with abstractions. Their pages are thin on specific
references to places, persons and institutions of German history
while they are filled with commentary on capitalism, fascism, the
Enlightenment, technology and modernity. The tendency to displace
historically specific proper nouns with generalizations and thus to
hypostatize Weimar’s own particularities as emblematic of
something called modernity in general unfortunately entered into
modern social theorizing and has had a damaging impact on it ever
since. Weimar was neither paradigmatic for modern societies and
politics nor did the generalizing tendencies of its traditions of
social theory help to illuminate its own political, and economic
crises. Ironically, despite their preoccupation with the
subjective factor and human consciousness in politics, they also
failed in important and perhaps in light of Neumann’s work in the
Office of Strategic Services in Washington, even in consequential
ways, to grasp the causal significance of the Nazis’ radical
anti-Semitism. In view of the comparative weakness of liberal
democratic institutions in the Weimar Republic, the Frankfurt
School’s attacks on liberalism were of a piece with a radical
left that was finding fault with the Republic in a period in which
it needed intellectual defenders. While the Frankfurt School
celebrated its critique of capitalism and a fascism with no
national referent, it found itself unable to explain why the
bastions of global capitalism in the 1940s, the United States and
Great Britain waged and helped to win World War II against the
German dictatorship. While the Frankfurt theorists certainly were
critical of capitalism, their work of the 1920s to the 1940s
diverted attention from the long and short term particularities of
German history that would explain Germany’s divergence from the
core institutions and ideas liberal modernity as they emerged and
remained intact in Great Britain and the United States before and
during World War II. Ironically, in the 1960s, both Horkheimer and
Adorno had left behind some of the core ideas of their work
inspired by the Weimar era at the same time that the new left was
rediscovering the very abstractions that they no found less
compelling.
HOLLANDER, Dana / “Can There Be a Jewish Theopolitical?
The View From Hermann Cohen” This paper takes up the
question the question of whether Jewish existence has served or can
serve as an instantiation of theopolitics or as its exception, by
considering the case of the German-Jewish philosopher Hermann Cohen
(1842–1918). A useful vantage point on Cohen’s work can be
found in a 1931 treatment of Cohen by Leo Strauss, which highlights
and problematizes the extent to which Cohen’s philosophical
concern is also a "political" concern. Taking up Cohen’s
retrieval of the "Noahide" specifically as a religious category
that has been productively "politicized," I suggest that Cohen
re-values the political in Judaism as the realm in which a
universal justice may be envisaged.
HOLLERICH, Michael / “Catholic Anti-Liberalism in Weimar:
Political and Anti-political Theologians”
The paper summarizes Catholic political opinion from perspectives
that were (more or less) theological. It briefly reviews motifs
commonly found in anti-liberal thinkers and publicists. Next it
examines the controversy over “political theology” as it
emerged after Carl Schmitt's repristination of the concept in the
1920s. Then it looks more closely at the political presuppositions
and ideas in three anti-liberal Catholic scholars: Alois Dempf,
the philosophical and cultural historian whose Sacrum Imperium
(1929) gave a large impetus to the brief but potent efflorescence
of a Catholic Reichstheologie that in 1933 would build bridges to
National Socialism; Erich Przywara, the Jesuit systematic
theologian (and interlocutor of Karl Barth's) who kept an eye on
contemporary affairs through his involvement with the journal
Stimmen der Zeit; and Erik Peterson, a historian of Christian
origins and convert from Lutheranism, whose primary talking partner
- and eventual critic - was his close friend Carl Schmitt. Their
withholding of intellectual and moral capital from the Republic was
emblematic of a reticence common among certain Catholic
intellectuals, and the debate over their legacy reflects ongoing
Catholic misgivings about modernity that are still very much a
potent force in today's politics.
HOLQUIST, Peter / “The Russian Role in Formulating the Allies'
May 24, 1915 Note on the Armenian Genocide: Or, Why it Is Not
Surprising That the Russian Empire Inserted the Phrase ‘Crimes
Against Humanity’” Throughout the early nineteenth
and early twentieth centuries, Imperial Russia played a remarkably
prominent role in codifying and extending the international law of
war. This role challenges the traditional narrative of the rise of
international humanitarian law, which holds that the emergence of
humanitarian law was due largely to liberal states with developed
civil societies. This paper examines one key moment in
international law: the Allied powers’ May 24, 1915 note to
Ottoman Empire regarding the slaughter of Armenians. It was the
Russian government which initiated and drafted the note. It is
significant in the history of diplomacy, war crimes and genocide
studies for containing the first usage in a diplomatic document of
the term “crimes against humanity. Most scholars puzzle over the
Russian role in this note. Gary Bass, in his Stay the Hand of
Vengeance: The Politics of War Crimes Tribunals, writes that it is
surprising that it was “of all people” the Russian Foreign
Minister who inserted the key phrase “crimes against humanity.”
By situating Russia’s role in drafting and issuing this note
within a broader history of Russian involvement in such issues both
before and after 1915, the paper seeks explain why scholars should
not be surprised by the Russian foreign minister’s involvement.
JENNINGS, Michael / “Critique of Violence: Benjamin's
Politics, ca. 1922” It has long been acknowledged that
the work of the German-Jewish critic and philosopher Walter
Benjamin mixes theology and politics in heterodox ways.
Characterizations of the particular “theological politics” that
resulted, though, seldom examine the precise nature of the
theological positions that come into play. In the early years of
the Weimar Republic, Benjamin worked intensively on the formulation
of a theologically inflected “politics.” This project produced
a diverse body of work: from contributions to political manifestos
through finished essays and on to the great study of the German
Trauerspiel. In my paper, I trace Benjamin’s attempts to define a
theological and political position in a field bounded, on the one
hand, by conversion, syncretism, ecumenicism, and orthodoxy and on
the other by communism, anarchism, and notions of association
defined by the radical right. In so doing, I attempt to correct the
easy assumption that Benjamin was a messianically-inclined leftist.
KAPLAN, Gregory / “Politics, Theology, Race, and
Religion: The Dialogue of Franz Rosenzweig and Eugen
Rosenstock-Huessy, 1916-1924" In this essay, I unpack
Rosenstock-Huessy’s 1924 argument for the immortality of
revolution in the context of a vital discussion about Judaism and
Christianity, ethnicity and faith, and sustaining sacrifice. The
disputation in 1916-1924 writings of Rosenzweig and Rosenstock
effectively raised major Jewish and Christian questions about life
or bios, its practice (politics), and its transcendence (theology).
Whereas, I find, Rosenzweig’s assumptions about a theology that
admits multiple religious identities stand alongside his
identification with traditional, even tribal ethnic identities,
Rosenstock’s theology of a universal church stands alongside his
politics of the human race that cannot reduce into ethnicities
KENNEDY, Ellen / “The Economic Sources of Dictatorship in Weimar
Germany” The constitutionality of executive prerogative
is a subject of intense debate among American scholars today.
Questions familiar from the political-legal literature of the
Weimar Republic came to the fore as a result the 9/11 attacks and
the Bush administration's response to them, and an unprecedented
number of constitutional scholars have begun to consider the
"emergency" capacities of the U.S. constitution. As practices of
surveillance, "extraordinary rendition", the use of torture and
indefinite confinement, practices in violation of fundamental
rights and guarantees that are long and well established in common
law and statute proliferated, Sanford Levinson described this
regime as one in which legal norms have been suspended. Our
discussion until now has focused on security and war powers. But
as for Germans in the 1920s, so now for us economic and financial
crisis belongs to critical phases in the constitutional life, and
to what our conveners call the "Weimar moment". Inflation and
depression mark its history and its political and legal theory. If,
as Jacobsen and Schlink argue Weimar's was a "jurisprudence of
crisis", it was an economic and financial crisis as well as a
security crisis. A more complex set of material threats to the
Republic's survival than is usually assumed shaped its
"constitutional dictatorship" throughout the 1920s. The expansion
of presidential government in response to the dissolution of the
parliamentary system through 1929-30, diplomatic stalemate,
domestic political gridlock, economic crisis, deficits,
unemployment paved the way to presidential dictatorship.
With the onset of inflation in 1922, economic emergency,
this paper argues, became as important to the theory of
dictatorship as threats to public order and civil peace.
Economic, as much and in some respects more than, security concerns
shifted legal opinion away from a limited reading of Article 48 to
an expansive interpretation of it. What had been a minority view
among constitutional scholars in the early '20s became by 1930 the
established opinion. Those shifts are examined in the work of Carl
Schmitt, Gerhard Anschütz and others.
KOSHAR, Rudy / “Demythologizing the Secular: Karl Barth and the
Politics of the Weimar Republic” The Weimar Republic
has achieved an iconic status in scholarship as a time of heroic
secular modernism. But recent radical critiques of secularism
suggest the need for re-examining historical narratives of the
Weimar years. More than a process of putting religion back into the
picture, these critiques refocus attention on the appearance of
fundamental re-descriptions of German society and polity that
emerged from the theological ferment of the early Weimar years.
Karl Barth's political theology is arguably the most important of
these re-descriptions because, by demythologizing secular
liberalism's separation of the theological and political, it
presented a starker alternative to the modern age than those
offered by either the Right or Left. But in contrast to both an
older scholarship as well as more recent discussions of the
relation between theology and politics in the modern West, this
paper argues that Barth's thought increased rather than decreased
resources for the stability of the liberal polity. Barth's
political theology simultaneously devalued all political ideologies
and reinserted elements of liberal secularity that corresponded to
his concept of God's freedom. The Weimar moment turns out to be
neither exclusively nor primarily a moment of high modernism but
also a moment in which the vision of a more theonomic polity
emerged that nonetheless also conduced to liberal democracy.
LLANQUE, Marcus / “Weimar Jurisprudence and Economics:
the Invention of ‘Wirtschaftsverfassung’ and the Integration of
the Economy into Constitutional Law” Up to the 1960s
and even longer the German tradition of constitutional law strictly
distinguished between the state and the social sphere (including
the economy). The term “Wirtschaftsverfassung” was invented to
connect both spheres during the Weimar Republic. Initially the term
“Wirtschaftsverfassung” came up in the decade before World War
I, transformed into a core field of jurisprudential research during
the Weimar republic, kept its momentum during the Third Reich and
had a massive influence on the founding period of Western Germany.
There is no proper English word for the German term
“Wirtschaftsverfassung”. Keith Tribe, the editor of Otto
Kirchheimer's writings [1], made different proposals which range
from “sphere of economic organization” and “framework of law
for the economy” to “legal organization of the economy” and
the “legal concept of a modern economic organization”. As he
says: “The problem is that the term Wirtschaftsverfassung does
not simply concern those sections of the Constitution which bear on
the economy, but designates rather a set of legal, social,
political and economic conditions which together, in this instance,
are the subject of constitutional action.” There are some
parallels between Wirtschaftsverfassung and “institutional
economics” in the Anglo-Saxon world in the 1920s (think of John
R. Commons) [2], although we have to keep in mind that
institutional economics started from the perspective of economical
theory and struggled with other taditions that had to be overcome.
It was Walther Rathenau, the Nabob of Robert Musil's “Man
ohne Eigenschaften”, a leading German entrepreneur in the
Kaiserreich, manager of the state agency on directing macro
economical efforts during Word War I, major figure within the
Deutsche Demokratische Partei DDP, and Secretary of the Exterior,
later shot by ultra nationalist militias, who said: economy is our
destiny (speech delivered to the Reichstag 1/29/1921). The
experience of World War I as well as defeat and subsequently
reparation claims made clear that economical power was a
significant factor for political sovereignty. One would even say
that society itself is dominated by a type of rationalism
established first in economy. Some years later Carl Schmitt replied
that politics should still be seen as the fateful question [3] in
order to protect collective freedom from internationally operating
markets and global financial transactions. Schmitt saw economy and
its rationalism as the major threat to the sovereignty of the
nation-state. [4]
In between Rathenau whose thinking was entirely independent
from the German state tradition and Schmitt who tried to redeem the
traditional Staatslehre from social factors by integrating politics
into it we find a less glamorous but more fruitful approach to
establish a system of legal concepts to provide a better
understanding of the economical effects on politics, from which the
term "Wirtschaftsverfassung" resulted. It means much more than the
state of the economy or the current economical system and also much
more than the constitutional norms touching the economical field.
Although it was an achievement of the Weimar Constitution to
mention the working sphere as well as the economical sphere as
parts of constitutional law (part II, section 5: “Das
Wirtschaftsleben”) it was not clear in what sense and to what
extent these provisions could be seen as binding law or merely as a
kind of directive goal setting for further state action.
No matter whether there was a capitalistic or a socialistic
system, the question at stake was how ethical and political ideals
could influence powerful social factors like markets, business and
industry. For many contemporary thinkers the answer to that
question came as a suprise: the state itself and its normative
regulations being powerful instruments influence the contents as
well as the procedures of the economy and it is the state that
provides vital services even for the most liberal capitalistic
system considering itself to be independent from the state as well
as state interventions. Not only does the state introduce
non-economical ideals to business (like regulations to protect the
workers), but effectively brings economical systems to work; even
capitalism needs laws and regulations implemented by the state.
Norms which constitute the framework for economical
practices not necessarily range in the highest level of law
hierarchy: most constitutions do not mention the economy at all or
only speak in very vague terms of the freedom of property. Some
ordinary laws beneath constitutional law are as much important as
formally constitutional law could be. The corner-stones of the
general economical framework are built of norms on all levels:
constitutional law, ordinary law and even executive orders (which
leads to problems of democratic theory and to the idea of the
general law). So the approach of Wirtschaftsverfassung emphazises
the constitutional importance of sub-constitutional institutions
like contract law, bankruptcy law, anti-trust law, market procedure
regulations. By thinking the relationship of the state and the
economy in terms of Wirtschaftsverfassung it was possible to
establish a more integrative approach, and thus bring together both
private and public law.
Operating with the concept of Wirtschaftsverfassung as an
attempt to connect public and private law; however, the political
purposes of doing so were different. Theories like the
institutionalism of Maurice Hauriou and Karl Renner had their
impact on the invention of the concept of Wirtschaftsverfassung.
Both of them helped to overcome the older tradition of legal
thinking which focused on the opposing spheres of the state and the
society. Hauriou's institutionalism [5]inspired Schmitt to define
limits for legislation in regulating property (in the case of
expropriation). Renner's institutionalism [6] initiated the effort
by Otto Kirchheimer and Franz Leopold Neumann to modernize dogmatic
Marxism by giving jurisprudence a major role. In this perspective
law is not just the "Überbau", the ideological cover for the
material structure of society, it is a political tool to bring
socialism into existence within a democratic state.
On the other side there is the liberal Franz Böhm,
disciple and later major figure of the Freiburg school of
Ordoliberalism which had a major influence on the development of
the concept of the Social Market Economy after 1945. In many ways
the Social Market Economy is typicall for the German tradition to
mix social and political aspirations with market economy procedures
by giving the state the role of a guardian, as the “Hüter der
Verfassung.”
Notes:
[1] Keith Tribe, ed., Social Democracy and the Rule of Law,
London (Allen and Unwin) 1987.
[2] John R. Commons (Legal Foundations of Capitalism, New York:
Macmillan 1924.
[3] Carl Schmitt, Begriff des Politischen, 1933, p. 21.
[4] Marcus Llanque, Politische Ideengeschichte. Ein Gewebe
politischer Diskurse, München/ Wien (Oldenbourg) 2008, p. 434.
[5] Maurice Hauriou, La théorie de l'institution et la
fondation, Cahiers de la Nouvelle Journée, no. 4, 1925, 2-25;
engl. Albert Broderick, ed., The French Institutionalists, Maurice
Hauriou, Georges Renard, Joseph T. Delos, Harvard UP 1970, 93-124.
[6] Karl Renner, Die Rechtsinstitute und ihre soziale Funktion.
Ein Beitrag zur Kritik des bürgerlichen Rechts, Tübingen 1929;
übersetzt in der ed. von Kahn-Freund: The Institutions of Private
Law and their Social Functions, London 1949 (Routledge); dt.
Übersetzung: mit einer Einleitung und Anmerkungen von Otto
Kahn-Freund, Stuttgart 1965.
MCCORMICK, John / “Authority Beyond the Bounds of Mere Reason in the Schmitt-Strauss Exchange” This essay reevaluates the Weimar writings of Carl Schmitt and Leo Strauss, specifically, their intellectual efforts to replace, as the ground of political authority, Enlightenment rationality with, respectively, “political theology” and “Biblical atheism.” These efforts originate in the respective authors' idiosyncratically Catholic and Jewish writings from the early twenties, culminate in the their engagement over Schmitt's Concept of the Political in 1932, and continue, with certain changes in orientation, into the early to mid-thirties, after the Weimar Republic had been usurped by the National Socialist Party state. Schmitt and Strauss each insisted that Enlightenment rationality was unraveling into a way of thinking that violently rejected “form” of any kind, fixated myopically on human things and lacked any conception of the external constraints that condition the possibilities of philosophy, morality and politics. Consequently, they considered Enlightenment reason a threat to “genuine” expressions of rationality and a dangerous obfuscation of the necessity of political order-of the brute fact that human beings stand in need of “being ruled,” as such.
MICHELSON, Patrick / “Restoring Wholeness in an Age of
Disorder: Europe's Long Spiritual Crisis and the Genealogy of
Slavophile Religious Thought, 1835-1860” The aim of
this paper is to explain how Slavophile religious thought, which
took shape during the reign of Nicholas I (1825-1855), informed the
Christian categories used in the 1920s by some Russian émigrés to
make sense of the old regime's demise and chart a path toward the
renewal of European civilization. It does so not by examining the
immediate context of the interwar period, but rather by
investigating a previous, discrete moment in history: the
Slavophile appropriation of Eastern Orthodoxy to address the sense
of spiritual disjointedness in post-Napoleonic Europe and
Nicholaevan Russia. Such an analysis establishes the historically
contingent content of Slavophile religious thought, which, in turn,
helps to unpack many of the signs and symbols embedded in the
complex of ideas expressed by Russian religious thinkers in the
decade after the Bolshevik Revolution.
NOVAK, David / “Leo Strauss’ Critique of Hans Kelsen”
In his 1953 book, Natural Right and History, the
political philosopher Leo Strauss (1899-1973) wrote the following
about the 1949 translation of the 1925 book, Algemeine Staatslehre
by the legal philosopher Hans Kelsen, entitled General Theory of
Law and State: “Since Kelsen has not changed his attitude toward
natural right, I cannot imagine why he has omitted this instructive
passage from the English translation” [p. 4, n. 2]. The original
passage to which Strauss is referring (and which he quotes at
length) asserts that even a despotic regime is still a valid legal
order (Rechtsordnung), and that to argue otherwise is an example of
"the naiveté of natural law." Writing from a perspective after the
collapse of the Weimar Republic, and the defeat of the Third Reich,
Strauss seems to have history on his side, and that it is Kelsen's
legal positivism that is in the end truly naïve. Moreover, the
fact that both Kelsen and Strauss were Jews who had to flee Europe
because of Nazi persecution makes Strauss' critique of Kelsen's
naiveté that much more poignant, since Strauss seems to be saying
that Kelsen was providing a philosophical justification in advance
for the Nazi regime, one that one could infer from its subsequent
omission was one that embarrassed Kelsen, yet one he himself would
not or could not philosophically overcome because of his continued
advocacy of legal positivism. The question is, though, did Strauss
offer a truly cogent alternative to Kelsen's dismissal of what
Strauss called the classical Greek philosophical idea of “natural
right.” This paper will explore this question.
POOLE, Randall / “Kantian Foundations of Russian Liberal Theory: Human Dignity, Justice, and the Rule of Law” Despite its frail social foundations, or perhaps because of them, Russian liberalism in the late imperial period was highly developed theoretically. Russian philosophers produced a body of liberal theory that was as sophisticated and powerful as any in contemporary European social thought, perhaps more so. Russian liberal theory was developed mainly by a group of idealist philosophers associated in the Moscow Psychological Society (1885-1922), the first and most important center of the growth of Russian philosophy in this period. This group included Boris Chicherin, Vladimir Solov'?v, Evgenii Trubetskoi, Pavel Novgorodtsev, and Sergei Kotliarevskii. This paper contends that, beginning with Chicherin, the foundations of Russian liberal theory were Kantian. It shows how the Russian philosophers embraced Kant's concept of personhood (autonomy and dignity) as their first principle and how they dealt with the relationship among morality, right, and law. It argues that they tended to emphasize moral consciousness over coercion as the most important factor in the observance of law and that, for them, the rule of law rested ultimately on a strong civil society suffused with respect for human dignity, civil rights, and justice. The paper concludes by contrasting the Kantian principles of liberal theory with the very different principles of political theology in Weimar Germany and Soviet Russia.
RASMUSSEN, Carl / “Barth among Anselm and Augustine:
Karl Barth’s Anselm: Fides Quaerens Intellectum (1931) as a
Prelude to the Barmen Declaration” In 1931, Karl Barth
published a commentary on St. Anselm: Anselm: Fides Quaerens
Intellectum: Anselm's Proof of the Existence of God within the
Context of his Theological Scheme. Barth considered this short book
a turning point in his development: It is the Anselm commentary
that prepared Barth not only for his Church Dogmatics but also for
the Barmen Declaration of 1934, of which Barth was the principal
author. I argue in this paper that the Anselm commentary takes
Barth beyond dialectical theology into an Augustinian realism that
forms the basis for his subsequent work. I also argue that the
Anselm commentary presents a Barth very different from the “post
liberal” Barth presented by Barthians of the Yale School.
The Barmen Declaration, a twentieth century confession of
the church, makes an objective, authoritative claim on the secular
order, including the claim that the Church alone instructs
government about its vocation. Dialectical theology was not capable
of making such a claim. In his dialectical phase Barth confronted
the problem of how God can be present objectively to thought. How
can the Church claim that faith is other than an irrational,
inarticulate experience, the equivalent of mere illusion or
fantasy? The Anselm commentary provides an answer, which
constitutes a breakthrough. In Anselm, Barth discovered the
theological realism of Anselm, and through Anselm, of Augustine.
Anselm provided Barth with an epistemology of revelation. Anselm's
famous "proof," is according to Barth, not a proof at all but an
intramural demonstration (a demonstration following from and within
faith) that establishes a rule for thinking about God and making
claims on behalf of the Church beyond language, conception, and
ideology.
Barth has been misrepresented in current scholarship, as a
post modern, “post liberal” theologian of the Yale School who
configures the language of the semiotic community that we call the
Church. A post liberal Barth would not have been capable of the
Barmen Declaration. Barmen transcends any particular semiotic
community and makes claims on the public order beyond the Church.
To highlight the point that Barth is not a “post liberal,” I
structure my explication of Barth’s Anselm commentary on a series
of oppositions: knowledge rather than belief; the object in re
rather than language; human solidarity rather than semiotic
community; illumination rather than meaning; and confession rather
than ideology.
RICCI, Gabriel R. / "The Ideological Struggle for the
German Soul in Thomas Mann’s The Magic Mountain"
Thomas Mann planned and wrote The Magic Mountain over twelve
tumultuous years which spanned the First World War and a social
revolution which ended the Wilhelmine Empire and launched the
Weimar Republic (1912-1924). Over these same years Mann would
experience a personal transformation that would dislodge a
"non-political" chauvinism and replace it with a political
consciousness that would make him a public critic of the emerging
Right. His personal transformation is echoed in the exchange of
ideas in Magic Mountain that would pit liberal humanism against a
theocratic totalitarianism. These positions are represented by the
characters of Luigi Settembrini and Leo Naptha respectively. The
object of their intellectual attention is the protagonist Hans
Castorp, who is also referred to as the Engineer, a symbolic label
which refers to the belief that societal amelioration and progress
keep pace with technological advances.
The exchange between Settembrini and Naptha was partially
fueled by the conflict between Mann and his brother who was a
Francophile, but it is supposed that Naptha's character was based
on Georg Lukacs and Settembrini on the real Luigi Settembrini, a
Risorgimento figure who believed that literature was identical with
the soul of a nation and was in opposition to medieval mysticism
which ignored reality, freedom and the autonomy of reason in favor
of the preeminence of faith. As a Jewish Jesuit, Naptha argues
for a form of theocratic totalitarianism that is bolstered by a
rabid scholasticism. As heir to the romanticism and ideals of the
French Revolution, Settembrini exalts the individual and the
perfectibility of humanity. Settembrini refers to Naptha as the
princeps scholasticorum and Naptha dismisses Settembrini as a mere
carbonara (a charcoal burner or the Italian form of freemason).
This paper examines the fiery exchange and the name calling between
Naptha and Settembrini in light of the rise of Pan-Germanism and
the cultural roots of Nazi ideology.
ROSENHAGEN, Ulrich / “‘Together a Step Towards the
Messianic Goal’ - Jewish-Protestant Encounter in the Weimar
Republic” The Weimar republic was a time of intensive
encounters and dialogue between liberal Jewish and (mainly) liberal
Protestant theologians. As religious scholars have noted, during
this brief period, theologians of both faiths found common cause in
their fight against anti-Semitism, and in their defense of
democracy, modernity, and the West. But even this alliance did not
hold after 1933, and it finally failed when liberal theology got
affected by Volkish thought. My paper seeks to explore in greater
depth this fragile inter-religious dialogue from the perspective of
the Protestant theologians. By focusing on two major publications
in which this dialogue took place--the leading Protestant
encyclopedia in Weimar, Religion in Geschichte und Gegenwart, and a
special 1927 edition of Martin Buber’s Der Jude-- this paper
examines the Protestant theologians’ views, assumptions, and
ideas about Jews and Judaism, as well as their assessments of the
relationship between Christianity and Judaism. It demonstrates
how, despite their own calls for openness, Protestant theologians
failed to comprehend Judaism as a lived religion, and thus, how
their persistent ambivalence undermined the promise of this
inter-religious dialogue.
SPICER, Kevin / “Who is Neighbor? Catholics and Jews
in the Weimar Republic” The paper will examine the
complex relationship between Catholics and Jews during the Weimar
Republic.
WOLIN, Richard / “Walter Benjamin Meets the Cosmics: A
Forgotten Weimar Moment” In Weimar cultural history,
there are fascinating moments when les extrêmes politiques se
touchent. One such moment concerns the overlap between the
political thought of Walter Benjamin and Carl Schmitt, both of whom
were obsessed by the “state of exception.” Both figures viewed
the exception as being of higher existential, even theological
import than the prosaic, rule-bound strictures of bourgeois
parliamentarism. Another such instance concerns Benjamin’s
momentous encounter with self-styled cosmic philosopher Ludwig
Klages, on which my presentation will focus.
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