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Constitutional theory in the Weimar Republic : = Positivists, anti-positivists, and the democratic welfare state.

Record Type:	Electronic resources : Monograph/item
Title/Author:	Constitutional theory in the Weimar Republic :/
Reminder of title:	Positivists, anti-positivists, and the democratic welfare state.
Author:	Caldwell, Peter Charles.
Description:	1 online resource (439 pages)
Notes:	Source: Dissertations Abstracts International, Volume: 55-06, Section: A.
Contained By:	Dissertations Abstracts International55-06A.
Subject:	European history. -
Online resource:	http://pqdd.sinica.edu.tw/twdaoapp/servlet/advanced?query=9401890click for full text (PQDT)
ISBN:	9798534678208

Constitutional theory in the Weimar Republic : = Positivists, anti-positivists, and the democratic welfare state.
Caldwell, Peter Charles.

Constitutional theory in the Weimar Republic :Positivists, anti-positivists, and the democratic welfare state. - 1 online resource (439 pages)

Source: Dissertations Abstracts International, Volume: 55-06, Section: A.

Thesis (Ph.D.)--Cornell University, 1993.

Includes bibliographical references

This dissertation addresses debates during the Weimar Republic about the constitution's nature and function in a democratic, interventionist state. After examining German constitutional history and the shift from monarchical constitutionalism to popular sovereignty in 1918 (Part One), I turn to the dominant legal positivist approach to constitutional jurisprudence in the Kaiserreich (Part Two). Legal positivists such as Paul Laband and Georg Jellinek assumed that every statute produced according to the procedures enumerated in the constitution was valid, regardless of content. The Laband school therefore granted statutes the same weight as constitutional articles, downplaying any specifically constitutional jurisprudence. Their approach to law, I argue, suited the political and legal structures of constitutional monarchism. After the 1918 Revolution created the new Republic, the Labandian method came under fire. Gerhard Anschutz and Richard Thoma used Labandian positivism to affirm the constitutional status quo and therefore the Republic. Yet Labandian positivism afforded no answers to two important questions facing a parliamentary democracy. First, positivists did not address how law was "grounded" in a democratic state. Did law originate in the unified will of the people or in the procedure of organizing plural interests? Second, positivists did not develop a theory of constitutional interpretation. Chapter Six shows how Hans Kelsen and Carl Schmitt addressed the first problem. Schmitt's fundamentalist assertion of a pre-legal, homogenous Volk related to his defense of the authoritarian state. By contrast, Kelsen's neo-Kantian transformation of the problem of origins into a hypothetical presupposition allowed him to develop a dynamic theory of state and society. Hermann Heller and Rudolf Smend addressed the second problem (Chapter Seven). Heller stressed the formal and political requirements of constitutional interpretation and application, while Smend revealed the need for substantial, moral or sociological analysis in the interpretive endeavor. As my conclusion shows, Kelsen and Heller had begun to develop out of positivism a theory of constitutional jurisprudence that was adequate to the needs of the democratic welfare state. The subtext of Schmitt's and Smend's respective theories was, however, a rejection of that state.

Electronic reproduction.
Ann Arbor, Mich. :
ProQuest,
2023

Mode of access: World Wide Web

ISBN: 9798534678208Subjects--Topical Terms:

1972904
European history.
Subjects--Index Terms:

GermanyIndex Terms--Genre/Form:

542853
Electronic books.

Constitutional theory in the Weimar Republic : = Positivists, anti-positivists, and the democratic welfare state.
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520 $a This dissertation addresses debates during the Weimar Republic about the constitution's nature and function in a democratic, interventionist state. After examining German constitutional history and the shift from monarchical constitutionalism to popular sovereignty in 1918 (Part One), I turn to the dominant legal positivist approach to constitutional jurisprudence in the Kaiserreich (Part Two). Legal positivists such as Paul Laband and Georg Jellinek assumed that every statute produced according to the procedures enumerated in the constitution was valid, regardless of content. The Laband school therefore granted statutes the same weight as constitutional articles, downplaying any specifically constitutional jurisprudence. Their approach to law, I argue, suited the political and legal structures of constitutional monarchism. After the 1918 Revolution created the new Republic, the Labandian method came under fire. Gerhard Anschutz and Richard Thoma used Labandian positivism to affirm the constitutional status quo and therefore the Republic. Yet Labandian positivism afforded no answers to two important questions facing a parliamentary democracy. First, positivists did not address how law was "grounded" in a democratic state. Did law originate in the unified will of the people or in the procedure of organizing plural interests? Second, positivists did not develop a theory of constitutional interpretation. Chapter Six shows how Hans Kelsen and Carl Schmitt addressed the first problem. Schmitt's fundamentalist assertion of a pre-legal, homogenous Volk related to his defense of the authoritarian state. By contrast, Kelsen's neo-Kantian transformation of the problem of origins into a hypothetical presupposition allowed him to develop a dynamic theory of state and society. Hermann Heller and Rudolf Smend addressed the second problem (Chapter Seven). Heller stressed the formal and political requirements of constitutional interpretation and application, while Smend revealed the need for substantial, moral or sociological analysis in the interpretive endeavor. As my conclusion shows, Kelsen and Heller had begun to develop out of positivism a theory of constitutional jurisprudence that was adequate to the needs of the democratic welfare state. The subtext of Schmitt's and Smend's respective theories was, however, a rejection of that state.
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