The German Constitution
Germany is no longer a state. The older teachers of constitutional law had the idea of a science in mind when they dealt with the constitutional law of Germany, and they accordingly set out to specify a concept of the German constitution. But they could not reach agreement on this concept, and their modern counterparts finally gave up looking for it. The latter no longer treat constitutional law as a science, but as a description of what is present empirically without conforming to a rational Idea; and they believe that it is only in name that they can describe the German state as an empire or body politic.
There is no longer any argument about which concept the German constitution falls under. What can no longer be related to a concept [begriffen] no longer exists. If Germany were supposed to be a state, we could only describe the present condition of the state’s dissolution as anarchy (as a foreign scholar of constitutional law did), were it not that the parts have reconstituted themselves into states which have retained a semblance of unity, derived not so much from a bond which still exists as from the memory of an earlier one. In the same way, fallen fruit can be seen to have belonged to a particular tree because it lies beneath its branches; but neither its position beneath the tree nor the shade which the tree casts over it can save it from decomposition and from the power of the elements to which it now belongs.
The health of a state generally reveals itself not so much in the tranquillity of peace as in the turmoil of war. The former is a state [Zustand] of enjoyment and activity in isolation, in which government is a wise paternalism which makes only ordinary demands upon its subjects; but in war, the strength of the association between all [individuals] and the whole is displayed, both in the extent of the demands which this association has managed to impose on individuals and in the worth of what the latter are prepared to do for it of their own initiative and inclination [Trieb und Gemüt].
Thus, in the war with the French Republic, Germany has found by its own experience that it is no longer a state. Both in the war itself and in the peace which concluded it, it has become aware of its political condition. The following are the tangible results of this peace: some of the finest German territories have been lost, together with several million of the country’s inhabitants; a burden of debt, which weighs more heavily on the southern than on the northern half, prolongs the misery of war far into the peace; and apart from those states which have come under the rule of the conquerors, and hence also of foreign laws and customs, many others will lose what is their highest good, namely their existence as independent states.
The present peace affords an opportunity to consider the inner causes, or spirit, of these results, which are merely the external and necessary appearances of this spirit. Besides, this consideration is in itself worthy of anyone who does not simply surrender to current happenings but recognises the event and its necessity. By such recognition, he distinguishes himself from those who see only arbitrariness and chance through the eyes of their own vanity, and thereby convince themselves that they would have exercised wiser and more effective control over all that happened. For most people, such recognition is of importance only because they [can derive enjoyment from] it and from the intelligent judgements on individual things which it makes possible, not in order that they may learn by experience how to act better on a future occasion. For there are very few people who can act in these great events in such a way as to direct their course, whereas the others must serve the events with understanding and insight into their necessity. But those who learn from the experience of mistakes which are an expression of inner weakness and imprudence are not so much those who have made the mistakes: on the contrary, they are merely confirmed in their habit of making them. It is others who take note of [kennenlernen] them and are enabled by this insight to profit accordingly; and if they are at all capable of doing so, and if their external circumstances make this possible, they are in possession of an insight which may well be lacking in the thought of a private individual.
The thoughts which this essay contains can have no other aim or effect, if expressed publicly, than that of promoting an understanding of what is, and hence a calmer attitude and a tolerant moderation both in words and in actual contact [with events]. For it is not what is that makes us impetuous and causes us distress, but the fact that it is not as it ought to be; but if we recognise that it is as it must be, i.e. that it is not the product of arbitrariness and chance, we also recognise that it is as it ought to be. But it is difficult for human beings in general to rise to the habit of trying to recognise and think [in terms of] necessity. For between the events and their free apprehension they interpose a mass of concepts and ends, and they expect what happens to conform to these. And when it doubtless turns out otherwise in most cases, they get round their concepts by arguing that, whereas these were governed by necessity, the events were governed by, chance. For their concepts are just as limited as their view of things, which they interpret merely as individual events and not as a system of events ruled by a spirit; and whether they suffer from these events or merely find that they contradict their concepts, they find in asserting their concepts the right to complain bitterly about what has happened.
It is no doubt recent developments above all which have afflicted the Germans with this vice. In the perpetual contradiction between what they demand and what happens contrary to their demand, they appear not only censorious but, when they talk only of their concepts, untruthful and dishonest; for they attribute necessity to their concepts of right [Recht] and duties, whereas nothing happens in accordance with this necessity, and they are themselves all too accustomed on the one hand to a constant contradiction between their words and the deeds [of others], and on the other to trying to make of the events something quite different from what they really are, and to twisting their explanation of them to fit certain concepts.
But anyone who tried to understand [kennenlernen] what normally happens in Germany by looking at the concepts of what ought to happen — namely the laws of the state — would be utterly mistaken. For the dissolution of the state can be recognised primarily from the fact that everything is at variance with the laws. He would likewise be mistaken if he took the form assumed by these laws to be the true ground and cause of this dissolution. For it is precisely with regard to their concepts that the Germans seem dishonest enough not to acknowledge anything as it is, and not to present it as either more or less than the facts actually warrant. They remain true to their concepts, to right and the laws, but the events tend not to correspond with these, so that whichever party [Seite] stands to gain an advantage by doing so strives to reconcile the two by means of words with the force of concepts. But the concept which embraces all the others is that Germany is still a state today only because it once was a state, and because those forms whose inner life has [now] departed are still with us.
The organisation of that body known as the German constitution took shape in [the context of] a life quite different from that which later invested it and does so now. The justice and power, the wisdom and valour of times gone by, the honour and blood, the well-being and misfortune of long-deceased generations and of the manners and relationships which perished with them, are [all] expressed in the forms of this body. But the course of time, and of the culture [Bildung] which develops within it, has cut the destiny of that age off from the life of the present. The structure in which that destiny resided is no longer supported by the destiny of the present generation; it stands without sympathy for the latter’s interests and is unnecessary to them, and its activity is isolated from the spirit of the world. If these laws have lost their former life, the vitality of the present age has not managed to express itself in laws. The vital interest of each has gone its own way and established itself separately, the whole has disintegrated, and the state no longer exists.
This form of German constitutional law is deeply grounded in that quality for which the Germans have become most famous, namely their drive for freedom. It is this drive which did not permit the German people to become subject to a common political authority [Staatsgewalt], [even] after all the other peoples of Europe subjected themselves to the rule of a common state. The obduracy of the German character has never yielded sufficiently for the individual parts [of Germany] to sacrifice their particular characteristics to society, to unite in a universal [whole], and to discover freedom in common, free subjection to a supreme political authority.
The quite distinctive principle of German constitutional law has an unbroken connection with the condition of Europe [as it was] when the nations participated directly in the supreme authority, and not indirectly through laws. Among the peoples of Europe, the supreme political power was a universal authority in which each was accorded a kind of free and personal share; and the Germans have not wished to transform this free personal share, which is dependent on the arbitrary will, into a free share independent of the arbitrary will and consisting in the universality and force of laws. Instead, they have based their most recent condition entirely on the foundation of the previous condition of an arbitrary will which, though not opposed to law, is nevertheless lawless.
The later condition arises immediately out of that condition in which the nation constituted a people without being a state. In that age of ancient German freedom, the individual stood on his own in his life and his actions; his honour and destiny were not based on his association with a class [Stand], but on himself. Relying on his own sense and powers, he was either destroyed by the world, or shaped it to please himself. He belonged to the whole by virtue of custom, religion, an invisible living spirit, and a few major interests. Otherwise, in his activity and deeds, he did not allow himself to be limited by the whole, but imposed restrictions on himself, without fear or doubt, solely on his own [initiative]. But what lay within his sphere was so very much and so completely himself that it could not even be called his property; on the contrary, he would put life and limb, soul and salvation at risk for what belonged to his sphere, for what we would describe as [only] a part and [for which we] would therefore risk only a part of ourselves. He knew nothing of that division and calculation on which our legal arrangements depend, so that it is not worth the trouble of risking one’s neck for a stolen cow or openly setting one’s individuality against a power like that of the state — which is ten times or infinitely superior [to one’s own]; instead, he was completely and wholly [involved] in what was his own. (In French, entier means both ‘entire’ and ‘obstinate’.)
Out of this self-willed activity, which alone was called freedom, spheres of power over others were shaped by chance and character, with no regard for a universal and with little restriction by what is known as political authority; for the latter, as opposed to individuals, scarcely existed at all.
These spheres of power were fixed by the passage of time. The parts of the universal political power became a multiplicity of exclusive property, independent of the state itself and distributed without rule or precept. This manifold property does not constitute a system of rights, but a collection without principle, whose inconsistencies and confusion required the most acute perception to rescue it as far as possible from its contradictions whenever a collision occurred; or rather, it required constraint and superior strength [for the conflicting elements] to be reconciled with one another, but as far as the whole was concerned, it required above all the most special divine providence for it to survive at all.
Political powers and rights are not offices of state designed in accordance with an organisation of the whole, and the services and duties of individuals are not determined by the needs of the whole. On the contrary, every individual member of the political hierarchy, every princely house, every estate [Stand], every city, guild, etc. everything which has rights or duties in relation to the state — has acquired them for itself; and in view of this reduction of its power, the state has no other function but to confirm that it has been deprived of its power. Consequently, if the state loses all authority, and individual ownership [Besitz] rests on the power of the state, the ownership of those who have no other support but the power of the state, which is virtually nil, must necessarily be very precarious.
The principles of German public law [offentliches Recht] should therefore not be derived from the concept of the state or the concept of a specific constitution such as monarchy, etc., and German constitutional law is not a science based on principles but a register of the most varied constitutional rights acquired in the manner of civil law [Privatrecht]. Legislative, judicial, spiritual and military powers are intermingled, divided, and combined in the most irregular manner and in the most disparate proportions, just as diverse as the property of private individuals.
The political property of every member of the German body politic is most carefully defined by decrees of the Imperial Diet, peace treaties, electoral contracts [Wahlkapitulation], domestic settlements, decisions of the Imperial Court, etc. The care devoted to this has been extended, with the most religious punctiliousness, to absolutely everything, and years of effort have been devoted to apparently insignificant things such as forms of address, orders of procession and seating, the colour of various furnishings, etc. Given the utmost precision with which it determines every circumstance relating to right, however trivial, the German state must be credited with the best organisation in this regard. The German Empire, like the realm of nature in its productions, is unfathomable on a large scale and inexhaustible on a small scale, and it is this aspect which fills those who are initiated into the infinite details of the [various] rights with such wonder at the venerability of the German body politic and with such admiration for this most scrupulous system of justice.
This [system of] justice, whereby each part is maintained in separation from the state, stands in absolute contradiction to the necessary claims of the state on its individual members. The state requires a universal centre — a monarch and Estates — in which the various powers, foreign relations, defence, and their relevant finances etc. are united, a centre which not only directs [the whole] but also has the necessary power to assert itself and its resolutions and to keep the individual parts in [a state of] dependence on itself. On the other hand, the individual estates are assured by right of almost complete — or rather wholly complete — independence. If there are aspects of independence which are not expressly and solemnly defined in electoral contracts, decrees of the Imperial Diet, etc., they are [nevertheless] sanctioned in practice — a more important and comprehensive legal title [Rechtsgrund] than all the others. The German political edifice is nothing other than the sum of the rights which the individual parts have extracted from the whole, and this justice, which watches carefully to ensure that no power remains in the hands of the state, is the essence of the constitution.
Even if the unfortunate provinces which come to grief through the helplessness of the state to which they belong should denounce its political condition; even if the head of the Empire and the patriotic estates which first came under pressure should vainly appeal to the others for collective action; even if Germany, should be pillaged and abused — the constitutional lawyer will know how to demonstrate that all this is wholly in accordance with rights and with practice, and that all these misfortunes are trifles in comparison with the operation of this [system of] justice. If the unfortunate manner in which the war has been conducted derives from the behaviour of individual estates, one of which contributed no contingent at all and very many of which sent raw recruits instead of soldiers; if another paid no Roman Months, a third withdrew its contingent at the hour of greatest need, many concluded peace agreements and treaties of neutrality, and the great majority, each in its own way, nullified the defence of Germany — constitutional law can [nevertheless] prove that the estates had a right to behave in this way, a right to plunge the whole into the greatest danger, havoc, and misfortune. And since these are rights, the individuals and the whole must most rigorously guard and protect such rights [even the right] to be destroyed completely. There is perhaps no more fitting motto for this legal edifice of the German state than this:
Fiat iustitia, pereat Germania!
It is a feature of the German character — if not a rational one, then at least to some extent a noble one — that it regards right in general, whatever its basis and consequences, as something sacrosanct. If, as seems very likely, Germany should entirely cease to exist as a separate independent state, and [with it] the German nation as a people, it would still be gratifying to observe that, amidst the spirits of destruction, the fear of the law [Recht] was still conspicuous.
The political condition and constitutional law of Germany would afford such a spectacle if Germany could be regarded as a state; its political condition would have to be viewed as legal [rechtliche] anarchy, and its constitutional law as a legal system opposed to the state. Yet everything supports the conclusion that Germany, should no longer be regarded as a unified political whole, but rather as a collection of independent and essentially sovereign states. But it is said that Germany is an empire or body politic under a common imperial head and within an imperial union. There can be absolutely no objection to these expressions as legal titles; but an enquiry dealing with concepts is not concerned with these titles (although the definition of the concepts [in question] may clarify what such titles may mean). Admittedly, such expressions as ‘empire’ and ‘imperial head’ are often treated as concepts, and they must act as stop-gaps when the need arises.
The teacher of constitutional law who can no longer call Germany a state because he would then have to concede various consequences which flow from the concept of a state but which he finds inadmissible, adopts the expedient — since Germany is not supposed to be regarded as a non-state either — of treating the title ‘empire’ as a concept. Or, since Germany is neither a democracy nor an aristocracy, but ought essentially to be a monarchy — although the Emperor is not supposed to be regarded as a monarch either — the Emperor’s title of ‘Imperial head’ is adopted as an expedient, even within a system in which determinate concepts rather than titles are supposed to predominate.
To apply the completely general concept of ‘Imperial head’ to the Emperor is to consign him to the same category as the former Doge of Venice and the Turkish Sultan. Both of these are likewise heads of state, but the former was the very limited head of an aristocracy, while the latter is the most unlimited head of a despotism. And since the concept of a head [of state] applies to the most diverse range of supreme political authority, it is completely indeterminate and consequently valueless. It purports to express something, but has in fact expressed nothing at all.
Such meaningless expressions should be avoided In scientific and historical [contexts], even if the German character requires them as stop-gaps in actual life. For given the inherent stubbornness of the Germans in sticking firmly to their own will in civil life, and given the separate and irreconcilable interests of the state in [the sphere of] politics, if there are other important reasons why unity should nevertheless be achieved in these two areas, there is no better means [of attaining it] than by finding a general expression which satisfies both [parties], and which nevertheless respects the will of each. In this case, the difference remains as before; or if one party really must give ground, the same general expression at least allows it to avoid admitting that it has done so.
The Germans have for centuries kept up a semblance of unity with the help of such general expressions, although no party has in fact renounced one iota of its claims to independence. Reflection on this matter, particularly if it aims to be scientific, must stick to concepts, and in judging whether a country is a state, it must not waste its time with general expressions, but should consider what degree of power remains to that [body] which is to be called a state; and since it appears on closer examination that what is generally described as constitutional law [Staatsrecht] consists [in fact] of rights against the state [Rechte gegen den Staat], the question arises of whether, in spite of this, the state still [possesses] a power by virtue of which it really is a state. And if one looks more closely at what is required for this purpose, comparing it with the situation of Germany in this respect, it will emerge that Germany can in fact no longer be called a state. We shall [now] review the various principal powers which must be present within a state.