Preferred Citation: Jacobson, Arthur, and Bernhard Schlink, editors. Weimar: A Jurisprudence of Crisis. Berkeley:  University of California Press,  c2000 2000. http://ark.cdlib.org/ark:/13030/kt209nc4v2/


 
Hugo Preuss


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2. Hugo Preuss

INTRODUCTION

Christoph Schoenberger

The Weimar Constitution had no more passionate defender than the person who drafted it. No German law professor bound his name so unreservedly to the Weimar Republic as Hugo Preuss.

On 15 November 1918, six days after the fall of the monarchy, Friedrich Ebert, the Social Democratic chairman of the Council of People's Deputies and later president, appointed Preuss to a high post in the government: Staatssekretär des Inneren. His main responsibility was to draft a democratic constitution. Preuss, a bourgeois leftliberal, was at the time the most leftleaning scholar of the law of the state in Germany—Social Democratic professors of the law of the state had been unthinkable under the Kaiser. By appointing him, Ebert sought to bridge the divide between his Social Democrats and the middle class. He hoped to mollify bourgeois fears of a socialrevolutionary dictatorship, the “authoritarian state in reverse”against which Preuss had warned in a famous newspaper article in the days after the November Revolution.[1] At the end of 1918, Preuss completed a draft that decisively influenced the Weimar Constitution, although it underwent significant changes in the National Assembly. This “paternity”strengthened his deep inner bond with the Weimar Republic; his death in 1925 at the age of sixty-four spared him the experience of its failure.

During the Empire, Preuss had been an outsider among fellow scholars of the law of the state—unlike, for example, Gerhard Anschϋtz, one of his generation's few other prorepublican scholars of state law. Preuss was never offered a professorship at a German university; political and scholarly


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reservations as well as anti-Semitic prejudice kept him from the centers of scholarly life in the Empire. It was not an accident that he taught at the far less respected Berlin College of Commerce [Handelshochschule],aprivate school founded by the Berlin business community. The College of Commerce was an institution of the urban liberal bourgeoisie, the social class to which Preuss, a financially independent member of the Jewish upper class and an active leftliberal municipal politician, felt the closest ties. Here Preuss's career coincided with his scholarly and political interest: the selforganization of a free citizenry.

Preuss believed that citizens should organize themselves in locally selfgoverned communities, which would ultimately be supplemented by parliamentarization and democratization at the level of the Länder and the Reich. His personal involvement in local Berlin politics, as city councilor and honorary member of the municipal council [Magistrat], served this end at the local level. Historians of the Empire have sometimes viewed such liberal influence in local politics as indicative of the potential for liberalizing imperial Germany as a whole.[2] This is certainly what leftliberals like Preuss had in mind. But it should be noted that the strong position of liberals in the cities was largely due to the restricted franchise that applied to local elections. By contrast, the introduction of universal suffrage for Reichstag elections in 1871 seriously reduced liberal influence at the federal level and strengthened the Social Democrats and the Catholic Center Party. Preuss's political fate at the national level during the Empire mirrored the different conditions there. His efforts to win a Reichstag seat were unsuccessful both in the Empire's last Reichstag elections of 1912 and in the elections to the National Assembly and the first Reichstag of the Weimar Republic in 1919–20. Preuss, who joined the newly founded leftliberal German Democratic Party [Deutsche Demokratische Partei, DDP] after the end of the monarchy, ultimately proved to be too much the scholar and too little the politician.

His scholarly work centered on citizen self-organization as well. In 1889, he successfully defended his Habilitationsschrift under Otto von Gierke at the University of Berlin. That work, Municipality, State, and Reich as Territorial Corporations [Gemeinde, Staat und Reich als Gebietskörperschaften] and his later historical work on the development of German towns since the late Middle Ages were strongly influenced by Gierke's Theor y of Associations [Genossenschaftslehre]. Gierke thought that the possibility of creating associations and cooperatives was the basis of human history in general. According to him, associations of all kinds, from the family to the state, were able to combine diversity and uniformity.[3] Gierke's theory owed much to the tradition of the failed German revolution of 1848 and the Paul's Church Constitution drafted by the National Assembly in Frankfurt.

Gierke and Preuss, influenced as they were by the liberal ideals of 1848, opposed the legal positivism of Paul Laband that dominated state law


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scholarship during the early decades of imperial Germany. Laband viewed the law of the state as a creation of state power and attributed this power to the monarchy and its bureaucracy alone. His canonical State Law of the German Reich [Das Staatsrecht des deutschen Reiches (1876–82)] therefore dealt only grudgingly with the Reichstag's position in the Wilhelmine system. Laband considered parliamentary institutions to be mere formal limitations to an elementary state power that remained firmly in the hands of unelected bureaucrats.[4] Gierke, on the other hand, insisted on the crucial importance of the Reichstag, on the significance of basic rights and on the right of citizens to participate in public affairs in general. But Gierke was in favor of neither parliamentary government nor modern democracy. Preuss later radicalized Gierke's position, advocating gradual parliamentarization and democratization of the Wilhelmine system, which he termed an “authoritarian state”[Obrigkeitsstaat]. Long before Hans Kelsen, Preuss rejected the very concept of sovereignty, which was for him a relic of the monarchic-bureaucratic-absolutist tradition. A state built according to the principles of Gierke's Theor y of Associations could no longer be fixated on sovereignty; instead, the state would be characterized by popular self-organization at all levels—from the municipalities to the Länder and the Reich.

During the First World War, Preuss became one of the most outspoken critics of Wilhelmine Germany's political system. His impassioned German People and Politics [Das deutsche Volk und die Politik (1915)] dealt harshly with the Empire from a practical political perspective. In this wartime book, Preuss bemoaned the weakness of the German liberal tradition, which he claimed gave Germany a fundamentally different nature than the western democracies. The German idea of freedom, he argued, was traditionally apolitical and aimed only at protecting a private sphere of freedom against the alien, authoritarian power of the state. Freedom was only freedom from the state, not freedom in the state. For Preuss, the German party system reflected this tradition. Since the Reichstag had no direct influence on the formation of a cabinet, the German parties had developed stubborn ideological convictions and a strong oppositional spirit. They lacked the ability to compromise, let alone to take practical responsibility:

Despite the constitutional structure and local autonomy, the state appears again and again—above all in cases of conflict—to be embodied by the sole executive with its army and bureaucracy. Faced with this state, parliament and local government are an alien, heterogeneous element and can at best serve as external limitations. Not only does the attitude of the executive involuntarily follow this pattern; so does, involuntarily, the effort of the political currents called upon to practice eternal opposition in the German Länder. This effort always tended far more toward the negative side, the protection of individual and private freedom from encroachments by the state—the authoritarian


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bureaucracy—than toward the positive side, the conquest of state power and responsibility for one's own party.[5]

Preuss, in contrast, wanted freedom to be thought of as the freedom to cooperate in the community of citizens. With the end of the monarchy, he had the opportunity to translate his ideas into action.

Preuss drafted the Weimar Constitution, defended the draft before the National Assembly, and was closely involved in working out the final version of the document, which was promulgated on 14 August 1919. However, the Weimar Constitution did not reflect Preuss's wishes in every respect, particularly with regard to Germany's new federal structure. Preuss was convinced that the young republic could succeed only if its territorial boundaries, until then coupled with the dynasties of the individual Länder, were to change fundamentally. He proposed, on the one hand, unifying the underpopulated dwarf states of the Empire into larger territories, and, on the other, dividing Prussia into several separate Länder. In Preuss's view, the dissolution of Prussia, which had exercised a de facto hegemony during the Empire, was indispensable to the formation of a parliamentary democracy at the national level. He was convinced that the end of the dynasties signaled the coming of a unitary German nationstate—a state that could not bear the weight of an overgrown Prussia.[6] Preuss underestimated the tenacity of German federalism, however, and was unable to put his views into practice. A thorough restructuring of territorial divisions did not occur, nor did the breakup of Prussia. The continued existence of Prussia, which comprised three-fifths of the territory of Germany and its population, would be an obstacle to the development of the constitution, as Preuss had predicted. Ironically, democracy in Prussia, under the leadership of the Social Democratic minister-president Otto Braun, proved far less crisisprone than its national counterpart.[7]

By contrast, the central institutions recommended by Preuss for the Weimar Constitution did succeed in gaining the support of the National Assembly, in particular his conception of the relationship between Reichstag, cabinet [Reichsregierung], and president [Reichspräsident]. In Preuss's model, the president would appoint a chancellor to head the cabinet, who would at the same time require the confidence of the Reichstag. The president, directly elected by the people, would have a status equal to that of the Reichstag. In case of conflict between president and Reichstag, the president would have the right to call new elections “to lodge an appeal against the people's representative with the people themselves.”[8] This system was intended, on the one hand, to lead to an equilibrium based on separation of powers; on the other hand, it was to guarantee the democratic rights of the people against parliament.[9]

The new constitutional system weakened parliamentary institutions from the start. The Reichstag still had to grow out of the oppositional role to which


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it had become accustomed during the Empire. The new system, however, favored the persistence of behavior held over from the monarchy, as it ensured the presence of an executive ready for action and supported by the civil service and the military. The existence of a popularly elected president relieved the parties in the Reichstag, which were deeply split by social and religious differences and unused to the necessity of compromise, of the responsibility to form a cabinet. With the president as an Ersatzkaiser, a reserve authority stood at the ready that could easily head the state administration should the Reichstag fail to act. This “reserve constitution”became reality at the end of the Weimar Republic, when a presidential cabinet replaced the Reichstag as the primary legislative body. Preuss, who had denounced the weaknesses of the imperial constitutional system so unsparingly during the First World War, proved in his Weimar draft constitution to be far more influenced by the legacy of the constitutional monarchy than he himself realized. His system was onesidedly aimed at weakening the Reichstag but took no practical precautions against the danger of a dictatorship of the president.

Preuss's idealistic conception of cooperative democracy prevented him, like so many other Weimar democrats, from paying enough attention to the great significance of parties in a democratic state. Apart from exceptions such as Gustav Radbruch and Hans Kelsen, even democratically oriented state law scholars left the discussion of parties to conservative authors such as Heinrich Triepel, who bemoaned their influence over representative bodies and flirted with the idea of a parliament of estates. Even prorepublican scholars such as Preuss conceived of democracy more as an organic unity of the people than as a system for the orderly resolution of conflict. In their minds as well, the president easily developed into a guardian of the unified popular will facing a parliament splintered into opposing parties.[10]

Preuss continued his political, journalistic, and academic engagement on behalf of the young German democracy until his death in 1925. He was especially hurt by the accusation of rightwing nationalists circles, often accompanied by anti-Semitic attacks directed at him personally, that the Constitution was “un-German.”[11] Improvised in a climate of wartime defeat, saddled with enormous problems of foreign policy and economics, the Weimar Republic was unable to fulfill the task formulated by Preuss during the First World War as the goal of German constitutional development: “to synthesize antitheses and interests in common work and common responsibility for the commonwealth, the res publica.[12]

MAIN WORKS

Gemeinde, Staat und Reich als Gebietskörperschaften: Versuch einer deutschen Staatskonstruktion auf Grundlage der Genossenschaftslehre. Berlin: Springer, 1889.


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Die Entwicklung des deutschen Städtewesens. Vol. 1: Entwicklungsgeschichte der deutschen Städteverfassung.Leipzig: Teubner, 1906.

“Selbstverwaltung, Gemeinde, Staat, Souveränität” . In Staatsrechtliche Abhandlungen: Festgabe fϋr Paul Laband zum fϋnfzigsten Jahrestage der Doktor-Promotion, vol. 2, 197 ff. Tϋbingen: Mohr, 1908.

Das deutsche Volk und die Politik. Jena: Diederichs, 1915.

Deutschlands republikanische Reichsverfassung. 2nd ed. Berlin: Neuer Staat, 1923.

Um die Reichsverfassung von Weimar. Berlin: Mosse, 1924.

Staat, Recht und Freiheit: Aus 40 Jahren deutscher Politik und Geschichte. Tϋbingen: Mohr, 1926.

Reich und Länder: Bruchstϋcke eines Kommentars zur Verfassung des deutschen Reiches. Aus dem Nachlaß herausgegeben von Gerhard Anschϋtz. Berlin: Heymann, 1928.

LITERATURE

Bilfinger, Carl. “Reich und Länder” . Zeitschrift fϋr Politik19 (1929): 63 ff.

Feder, Ernst. Hugo Preuss: Ein Lebensbild. Berlin: Hapke & Schmidt, 1926.

Gillessen, Gϋnther. “Hugo Preuss: Studien zur Ideenund Verfassungsgeschichte der Weimarer Republik” . Dissertation. University of Freiburg, 1955.

Grassmann, Siegfried. Hugo Preuss und die deutsche Selbstverwaltung. Lϋbeck and Hamburg: Matthieson, 1965.

Hamburger, Ernest. “Hugo Preuss: Scholar and Statesman” . Leo Baeck Institute, Year book20 (1975): 179 ff.

Heuss, Theodor. “Hugo Preuss” . In Hugo Preuss. Staat, Recht und Freiheit, 1 ff. Tϋbingen: Mohr, 1926.

Hintze, Hedwig. “Hugo Preuss: Eine historischpolitische Charakteristik” . In Die Justiz, vol. 2, 223 ff. Berlin: Rothschild, 1926–27.

Lehnert, Detlev. “Hugo Preuss als moderner Klassiker einer kritischen Theorie der ‘verfaßten’ Politik: Vom Souveränitätsproblem zum demokratischen Pluralismus” . Politische Vierteljahresschrift33 (1992): 33 ff.

Lehnert, Detlev. Verfassungsdemokratie als Bϋrgergenossenschaft. Politisches Denken, Öffentliches Recht und Geschichtsdeutungen bei Hugo Preuss—Beiträge zur demokratischen Insitutionenlehre in Deutschland. Baden-Baden: Nomos, 1998.

Mauersberg, Jasper. Ideen und Konzeption Hugo Preuss' fϋr die Verfassung der deutschen Republik 1919 und ihre Durchsetzung im Verfassungswerk von Weimar. Frankfurt am Main: Peter Lang, 1991.

Schefold, Dian. “Hugo Preuss (1860–1925): Von der Stadtverfassung zur Staatsverfassung der Weimarer Republik” . Deutsche Juristen jϋdischer Herkunft. Edited by Helmut Heinrichs et al., 429 ff. Munich: Beck, 1993.

Schmidt, Gustav. “Hugo Preuss” . In Deutsche Historiker, vol. 7. Edited by Hans-Ulrich Wehler, 55 ff. Göttingen: Vandenhoeck & Ruprecht, 1980.

Schmitt, Carl. Hugo Preuss: Sein Staatsbegriff und seine Stellung in der deutschen Staatslehre. Tϋbingen: Mohr, 1930.


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THE SIGNIFICANCE OF THE DEMOCRATIC
REPUBLIC FOR THE IDEA OF SOCIAL JUSTICE

Hugo Preuss

Originally appeared as Die Bedeutung der demokratischen Republik fϋr den sozialen Gedanken (1925), in Hugo Preuss, Staat, Recht und Freiheit: Aus 40 Jahren deutscher Politik und Geschichte (Tϋbingen: Mohr, 1926), 481–96. It is the text of a speech that Preuss gave to the General Association of Free Employees [Allgemeiner freier Angestellten Bund], which was a trade union of whitecollar workers.

Of the value and dignity of the republic and of democracy in general I do not believe that I need to speak. I know that the AfA-Bund [Allgemeiner freier Angestellten Bund, General Association of Free Employees] is supposed to be “apolitical”in a certain sense; yet it is not so apolitical as not to be pervaded by the value and dignity of democracy, without my having to preach it. One would have to be politically blind not to discern clearly in the great course of recent history the direction in which historical development is moving with an internal necessity. If we look back one and a half centuries—a short span of time in the historical context—this period, especially its final decades, is filled with the incomparable triumph of democratic principles around the world. It starts with the Declaration of Independence by the United States and ends with the world war. One and a half centuries ago, when the United States entered the community of nations, it was the first and only large, modern, democratic republic. And after one and a half centuries had past, the last three antidemocratic powers collapsed in the world war—we, unfortunately, along with them. It is of world historical significance that not only Germany and Austria fell before the superior power of the coalition, but first of all Russia, which had been on the side of the victors, on the side of the superior power. This certainly does not prove that the allied and associated democracies of the West had led a crusade for democracy, as they claimed in their wartime propaganda. Yet it proves much more. It proves that in the great conflicts and decisions of the modern world with its tremendous mass movements—in these battles in which not only the military, but whole peoples, determine victory or defeat in their social entirety by summoning all their social strength of soul and technical potential—that in these times the antidemocratic form of government is simply no longer capable of competing with the great democracies. In short, it is so clear and apparent that the development is strengthening and securing the spread of the democratic principle and asserting it everywhere, that one could hardly deny it even if one wished to.


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Yet, some say, all that may be true, but the democratic state simply does not suit Germany. It contradicts the German character! Democratic institutions are “Western.”Yes, gentlemen, as I said at the beginning, I do not believe I need to refute that in front of this audience. They would be a strange people, these Germans, if they alone were incapable of keeping step with the political development of all civilized humanity. This claim is suspiciously reminiscent of those who glorified Russian czarism and desired to protect “Holy Mother Russia”from infection by the “rotten West.”It is generally those in power, favored by the historical destiny of a country and its people and by particular circumstances, who fear nothing so much as that their subjects could enter the great stream of general political and social development. The beneficiaries and followers of the power of princely dynasties, as well as the princely bureaucracies, also insisted that the German character and the true German national feeling stood in opposition to a unified national state. German nationalism, they said, could only feel at home in Prussia, or even more in Bavaria, and then, secundum ordinem, down to the Lippe and the Reuss. One is bitterly reminded of [Gotthold Ephraim] Lessing's despairing words, uttered at the height of princely sovereignty: “The true German national character is to have no national character.”But praise God, these times are behind us. Democratic freedom and national unity belong together, and why they belong together will be discussed later. But is it not already proven by the fact that we survived the terrible collapse of the old powers and the six equally terrible years of peace on this foundation of democratic and national unity? We could not have done it on any other foundation. But I do not need to discuss this further here.

In this circle, however, dedicated to social policy, the question formulated in my topic does arise: the social significance of the democratic republic. This certainly does not mean that I expect you to be smallminded enough to gauge great principles of the state's communal life and its historical development according to the personal advantages they bring or some other facet of social or trade union policy. I know that your opponents accuse you of this, but it does not touch you. But on the other hand, the republic and the democratic idea would be nothing but sounding brass or a tinkling cymbal

[*] Preuss quotes from 1 Corinthians 13:1.—EDS.

if the democratic idea were not closely linked with the social idea; if the free people's state that we hope to realize in the democratic republic meant nothing for the freedom and for the moral and material improvement of the people—that is, in general, the working people—in their own state. However, two opposing parties claim that democracy and republic mean nothing for the social idea and social progress.

You all know the term “formal democracy”used as an attack. Formal democracy—and there are many who mean the Weimar Constitution in


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particular when they say this—is said to be socially meaningless as long as the capitalist economic order has not been destroyed. In this view democratization of the state without socialization of the means of production is form without content, the equal rights of democratic freedom are as much of a lie as the privatelaw freedom of the so-called freelabor contract between the owners of the means of production and the proletarian who possesses only his labor power; just as the worker continues to be exploited through freelabor contracts, so also does he remain unfree under the freedom of democracy and the republican constitution. And this is where the opposing side chimes in: No, not only does he remain unfree, but he is even less free and more helpless in the democratic republic; for in the democratic republic, the property-owning classes rule without scruple or restraint. In the capitalist economic order, there is only one road to effective social reform, effective social progress, and that is a strong monarchy, they say, a strong monarchy that stands above the interests and aspirations of the ruling economic classes and is immune to class egoism, but which must also have the power to rein in the ruling economic classes and circles, to set restraints and to force them to take measures of social reform. And then, naturally, they go on to praise specifically the social kingship of the Hohenzollerns, and they quote the old Fritz, who is supposed already to have said that he would like to be a king for the beggars.

[*] The supporters of the monarchy in Imperial Germany had argued that only the monarchy could guarantee social justice, because it stood above the various interest groups. They referred to a celebrated remark of Frederick the Great, who, as Prussian prince, is supposed to have said that as king he would be “a king for the beggars”[“Quand je serai roi, je serai un vrai roi des gueux.”]. See Eckart Reidegeld, “Schöpfermythen des Wilhelminismus: Kaiser und Kansler an der ‘Weige des deutschen Sozialstaates’,” in Lothar Machten, ed., Bismarcks Sozialstaat: Beiträge zur Geschichte der Sozialpolitik und zur sozialpolitischen Geschichtsschreibung (Frankfurt and New York: Campus, 1994), 269.—EDS.

These are the two opposing parties, in whose crossfire the democratic republican constitution stands with regard to its connection with the social idea.

“Formal democracy!”Yes indeed, in a sense every constitution, like every legal order, is formal. It creates formal barriers between individuals and groups. Is, for example, the Soviet constitution(if one can speak of a constitution) not formal? It determines above all purely organizational forms and the rights to participate in the full electoral process and to vote. It is even more formal in creating, purely formally, an endless chasm between the minority of those with rights and the great mass of those excluded from them. These are formal barriers. Because every constitution, like every legal order, is in itself a formal element, no constitution as such can create a new society. It would be exciting false hopes to claim that any constitution, however it may be formulated, could immediately and directly create a new social landscape. Nevertheless, the value of a constitution for the idea of social


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justice can vary enormously. I believe that the value of a constitution for the idea of social justice can be determined by looking at its structure, the “formal”structure in which the constitution shapes the organization of government. The constitution may benefit and promote positive social development and leave it the most leeway legally, or it may limit social justice through privileges on the one hand and deprivation of rights on the other, and set artificial barriers and obstacles to the natural development of positive social movement. A constitution, even in the democratic republic, cannot create the “social state of the future”(to use an older expression). That is beyond the powers of a mere legal order. However, its value from a social point of view will be judged according to how its legal norms—the legal limits and restraints it sets—perform in regard to the law of progressive socialization. Although, or perhaps because, I am not a socialist, I can refer to progressive socialization with a clear conscience. It is an undeniable truth. Of course, one must not expect of it the sudden fulfillment of any socialist schema. But with shrinking space on earth, due as well to the growth of mankind and the conquest of distance, the law of progressive socialization has a certain natural inevitability. One need only consider the development of common means of transportation, light sources, energy sources, water sources, etc., with all their consequences. The present situation, with the consequences of the world war, offers indirect evidence. At first, a socialist deluge was expected, hoped for, or feared as a consequence. In fact, we see the opposite: an ebbing of socialization despite a socialist electorate and the swelling of an antisocial supercapitalism; for the world war temporarily pulled mankind apart, not only intellectually but also economically. By making international exchange and traffic more difficult, it also increased physical distances to a certain extent. As long as this situation continues, it limits or interrupts the efficacy of the law of progressive socialization.

However, it makes a significant difference whether a legal order hinders the development of the law of progressive socialization, whether it, as we can also say, hinders the intensification of social life—through artificial restraints, legal inequality, privileges and deprivation of rights—or whether it smoothes the path through democratic equality. Smoothing does not immediately lead to an ideal goal; neither do restraints hold off the goal forever. The development simply takes a longer or shorter time; and above all, it progresses either through healthy, peaceful internal development or through internal struggles and convulsions. That is the whole difference. But it is important enough for those who have to live with it.

I would like to illustrate this with an example. The freelabor contract certainly brings only formal equality of rights. When the employer and the employee, formally equal, make a legally free contract, they are not economically and socially equal; the economic and social differences at first remain unchanged. Here we see a spectacle that is often repeated in similar


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circumstances. There was a time and there were people who celebrated the freelabor contract as the ultimate in economic and social wisdom and who said: Children, what else do you want? The thousand-year Reich has been achieved! That was foolish; it was lack of political awareness. And it is partly for this reason that the opposing side now can claim, in contrast to this senseless overestimation, a swindle, a complete nothing, a lie; the freelabor contract is worthless! Gentlemen! For social policy it is neither the ultimate wisdom, nor is it socially worthless. It is even eminently valuable. Ask yourself: Is not the freelabor contract the starting point for the entire recent upward movement in social policy? Would this even be imaginable without the “formal”legal prerequisite of the freelabor contract? Would this entire development be imaginable under conditions of slavery, bondage, serfdom, indentured servitude, and guilds? No, these legal conditions had to outlive themselves, they had to make room for the new, “formal”right of the freelabor contract in order to create the opportunity and precondition for all the things that seem obvious to you today, since they have become so normal: the right to form unions, their movement and activity, collective bargaining agreements, etc. Just ask yourselves, in a quiet moment, what the necessary precondition to all these things is. The free-labor contract! Certainly, the free-labor contract did not in itself create the upward social movement, other movements and struggles did this. But the disgraceful “formal”right of the free-labor contract was the precondition to and root of all these modern weapons in the onward pressure of social policy. And now, to leave this example, constitutionally granted “formal” democracy offers in a similar, but much broader and larger sense, the basis, the starting point, the precondition for a rich and vigorous, though gradual, step-by-step unfolding of the social idea.

The democratic constitution contributes nothing to social progress? The supporters of the old say: Did not the social kingship do more? The democratic constitution does not speak of the “poor man”who must be “raised.”The so-called social kingship spoke quite a lot of him. Yes, gentlemen! The older among you still recall the large employers, who were in a certain sense extremely active in regard to “social policy”; they created a wealth of wellmeaning rules and beneficial social institutions—and they strongly emphasized what they did. But is it not remarkable that those who were to be favored by these measures saw them as a means of oppression! No fair person would deny that in a material sense the results were excellent. But why did those on the receiving end, if they were of firm character and clear head, experience at least, let us say, an uneasy feeling? Because they felt, and rightly so, that these social measures were not an end in itself; they were rather the means to an end, to a goal of power, stricter control and tighter shackles. Nonsocialists must never forget that, despite certain errors and mistakes, socialism always heavily and rightly emphasized, despite the importance of


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material questions, that the human being, and therefore the worker, does not live by bread alone; that to him ideal claims, claims to freedom, are just as much a necessity. For those “social”welfare measures, one is justifiably convinced that many a grant of bread and other material things occurs at the cost of personal freedom, dignity, and autonomy. What for the individual large employer is a matter of business policy and personal advantage, is on a larger scale and in modernized form what the social policy of the eudaimonic police state and of the Kaiser used to be. I do not deny that liberals and Social Democrats made political errors in dealing with these things. But what is now extolled in so many beautiful speeches—that real social improvement was achieved from above, that a real social, I won't say reconciliation, but rapprochement between the various segments of this one people through the instrument of social policy was reached; that is beyond question. For just like the policy of the enlightened absolutist employers (if we may so characterize them), authoritarian social policy was also a means to an end. The obvious proof of this is the fact that legislation concerning social policy was framed within anti-Socialist legislation—emergency legislation. The aim of this legislation was not social improvement in itself; it did not indicate that the social idea had penetrated the state; it was a means to the goal of power. We need not express it as impolitely as did Marx and Engels, speaking of the deception of royal Prussian government socialism; but those who follow these things more closely know what Bismarck learned from Louis Bonaparte in regard to this social policy as an instrument of power. It is simply an embarrassment to ascribe merely to Social Democratic agitation the astonishing fact that Germany, the country with the most progressive legislation concerning social policy, is at the same time the country whose working class is most alienated from the state, the life of the state, and the nation. During the war, as a member of the Reich Committee for the Welfare of War Invalids, I once went to Brussels at the invitation of the former governorgeneral of Belgium, von Bissing. Some of you will remember that Herr von Bissing made great efforts to explain to the Belgians how far ahead of their fatherland Germany was in social policy. He thought that with this he would propagandize Germany to the Belgian workers in a particularly clever and cautious way. And one must admit that Belgium was as backward in social policy as Germany was progressive. Despite Germany's exemplary social policy, the Belgian workers wanted nothing to do with its control. For politically they were more closely linked with their state than the German workers unfortunately were or could have been with the German state until the war, despite social policy from above—a result of the authoritarian system that excluded broad sectors from the life of the state.

Is not there a strong nexus between the idea of the republic—the res publica, the res populi, the affair of the people, what is shared by the entire people—and the social idea, in and of itself? Seen in broad terms, two


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structures of the state face one another here. The socialists call each other comrade. And the republic, and the democratic principle, rest on the cooperative principle of organization from below. Authority is not derived from above but from the community of comrades, of citizens; it rises from narrower to ever wider associations, from bottom to top. It is the cooperative structuring of the state. It faces the authoritarian structuring of the state from top to bottom that claims an authority given a priori. Max Weber has defined state power as the “monopoly of the legitimate use of force.”If this monopoly of the legitimate use of force is not in the hands of the entire population but of a dynasty, a class, a caste, a ruling body, they are forced like every creature, in line with the drive for selfpreservation, to use their power and force, first of all to obtain the monopoly. They must follow policies that cannot arise from the cooperative spirit of the entire population. They assure their own preservation, the assertion of their own control, anchored in all sorts of formal legal regulations and a corresponding administrative practice.

To be sure, democratic equality cannot be equated with the fiction of complete personal equality. First of all, people are not equal but very unequal. It has been said that, just as on a tree not one leaf is like the other, so not one person is really like the other. And further, political organization, like every organization, is differentiation and division of labor, hence, inequality. But why, then, is the right to take part in the full electoral process, political equality in general, the basis of every democratic form of state? Because at least at today's level of social, cultural, and economic conditions, any formal difference in the allocation of political rights to individuals leads to despotism, privilege, and deprivation of rights; a just allocation of different rights according to differences in personality is impossible. Those who would like to introduce an “organic”right to take part in the full electoral process, as they like to call it—that is, an unequal right—insist that the highest legal principle is not equal treatment for all, but equal for equals, unequal for unequals. But against what standard can one justly measure the allocation of political rights? Once, it could be done, when the rights of the estates still existed—before they were in ruins and could only be upheld in the flow of times through trickery and violence. At a time when they were still vital, the legal order had strict measures and could do justice to mass phenomena according to them. Individuals could still fall under the wheels of life, but these were individual cases. In general, the knight was a knight, the peasant a peasant, the trader a trader, the wage laborer a wage laborer in his entire nature and manner. It always happened that some were declassed upward or downward, but these were exceptions. But in this regard, modern social development (to summarize) involves differentiation of individuals and integration of classes. I know that it contradicts some of this audience's feelings, but I must openly express my scholarly conviction: Our development is not characterized by a deepening of class oppositions; rather, it integrates the classes.


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The mental and intellectual differences, the typical features of classes are leveling out; they level out to the same extent that individuals differentiate and become intellectually more varied. Today, gentlemen, the worker is not simply part of the mass phenomenon of workers; everything depends on individuality. I know “workers”who are statesmen in their entire individuality and mentality. And there are members of classes formerly called upon by law to govern, who in their mentality are not the least statesmen. The fact that they are not workers is certainly not a result of their being too good for it intellectually and being destined for something else because of their mentality. I do not want to go into this more deeply. If you follow me and quietly extend it according to your own personal experience, you will find confirmation in many examples. And if you know family histories, you will see how great the changes have been within a few generations! Differentiation of individuals out of their classes, and integration and equalization of various classes and vocations. Economic conditions also help to blur these boundaries. And because this is the essence of modern development, the legal order can no longer link varied rights to a variety of fixed, large groups. Thus democracy in the sense of equality, unconditional equality, is not a doctrinaire quirk, not a dogma made up in someone's study, but the natural, just consequence of all recent economic, social, cultural, and intellectual development.

Law in a democracy has realized that to turn political valuations into legal distinctions would be purely arbitrary; for the fixed, large, cultural, intellectual, etc. mass phenomena to which they could be linked no longer exist. However, individual differences cannot be measured using “formal”law. Does democracy therefore mean atomization, dissolution into mere unconnected individuals? Oh no, not into unconnected individuals; they simply are no longer divided into artificial, falsely formed groups forced together through a law that has become unjust.

On the basis of modern development, there is a remedy for atomization in keeping with and based upon democratic equality, which is also necessary and indispensable for the new state: the people's free selforganization in parties. This avoids atomization and gives the people the means of acting politically in a democratic sense. Perhaps you will interject: Wait! Do the political parties in Germany really provide the people with the means of acting politically, or should one maintain the opposite? Democratic selfgovernment is still in its infancy here. We have inherited our party system from the old days of the old authoritarian state, where playing political games was a more-or-less sensible way of passing the time without any true, serious responsibility for the fate of the people. They will have to change and reform themselves under the harsh necessity of the responsible task that popular self-government poses. Thus, our old party system is experiencing ferment and decomposition; something new is happening. Certain parties


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would like to use social conflicts of interest to drive apart the political trends that belong together from internal necessity for the future of our people.

All liberal political trends must be rooted in the social idea, if they are not to betray themselves. One often hears of the contradiction in principles between liberalism and democracy, namely, social democracy. Gentlemen, this contradiction is not genuine, not true. Read the father of classical liberal economics, Adam Smith. If you really read him, you will have to say that the man is not the father of the Manchester guild; he is much more what today we would call socialliberal. He certainly is, and this also is what liberalism was originally. That is why liberalism had to grow into a socially oriented democracy. Only later does one find a different trend, a distortion of liberalism—when, as Alfred Weber described it, competitive capitalism changed into monopoly capitalism. That was an important change. The idea of free movement for all, the search for freedom of economic development in opposition to the state, were no longer the true leitmotifs; they declined to mere propaganda and advertisement. Instead, in reality, the real issue for this trend was and is until today control by private economic interests over the entire state, over the public interest. Monopoly capitalism is necessarily antidemocratic and anti-social—what competitive capitalism is not, so long as it is healthy and fresh. In contrast, the democratic and the social ideas are rooted together in the cooperative principle of the commonwealth, the democratic, the republican state. Gentlemen, it was under the aegis of imperial social policy that monopoly capitalism, with its anti-social and antidemocratic instincts, became far stronger. It became one of the driving forces behind that means of power, behind the whip of the emergency laws, when the carrot of social policy with its legislation was proven politically ineffective. It was one reason for the alienation of broad sectors of the population from the state and finally for the collapse that we experienced with horror.

Lulled by the dream of security in the good old days, no sector of the German people was prepared for that collapse. If one considers this, one must realize—as will future historical investigation—that those trends and movements of the people who were not attached to the old system come hell or high water, as well as those who in fact opposed it, did an incredible rescue job after the collapse. I have always emphasized that the attitude taken by the Majority Social Democrats in those terrible, critical days was a stroke of luck for Germany. It was statesmanlike, it was national in the true sense of the word, and it gave credit to its name, social and democratic. It is really not so much a question of how the two parts of the word are connected, whether democratic and social or social and democratic. It is just a difference in emphasis. What counts is not to allow the democratic and the social principles to be turned against one another, playing into the hands of those


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who, as anti-nationalists and anti-democrats, serve the cause of reaction and monopoly capitalism. In that terrible emergency, after all the gods or idols had collapsed in the great twilight of the gods; after the world war, this horrible judgment of the world, had revealed the old system's loss of vitality, the only possibility of salvation proved to be the fact that the new state could be erected on the elemental community of democratic, social, and national ideas, all inseparable from one another.

A nation that no longer believes itself held together by subservience to hereditary dynasties—what is it but a cooperative community, the cooperative community of a people sharing common historical experiences, a common language, a common culture, a people that wishes to be itself, developing through its own individuality, its own character, its own intellectual gifts as a full-fledged member of the international community? For this national community to hold together strongly and firmly, it must—on a cultural and intellectual level that a people such as ours achieved long ago—live in a state based on the rule of law that facilitates and makes possible the betterment of all members of the people and gives it free rein by refraining from limiting and harming the natural development of this upward movement through outdated privileges, legal inequalities of a “formal”yet legally binding type. The necessity of democratic equality of which I spoke previously must become the reality of this state based on the rule of law.

Common work on the common democratic state, on the res populi, the affair of the people, at the same time creates common ground for the various economic and social interest groups and classes. This is not the sweet song of eternal social peace and harmony. We should not believe that economic and social struggles, or party struggles, will disappear even in the most attractive democratic order. That would be marasmus; everything would suffocate in such stagnation. But the struggles would lose much of their poison if they were framed by the common object of democratically equal comrades, by the political commonwealth. Common political activities—getting acquainted, standing shoulderto-shoulder, collegial political relationships—create mutual respect and temper harshness, and the attack of monopoly capitalism will be countered by the great mass of voting citizens with their superior weight.

When we consider under what conditions of external and internal distress the democratic German republic was born and lived its early years, we must say, despite everything that, God knows, we do not approve of in this German republic, it did good work. It would not have been possible to hold the German Reich together without the democratic and social communal spirit. Without this communal spirit, without the commonalities of the national, democratic, and social principle, everything would have come apart at the seams. Pure power politics, pure authoritarian power could not have kept


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the Germans on the Rhine and the Ruhr within the Fatherland. Not because they were ordered from above, but because they wanted from below, they remained loyal to the nation. It would be triply pernicious from this point of view if one did not attempt to lead the social struggle into calmer paths where possible—if one were to fan the flames of social bitterness and embitterment in Germany's democratic, national, and social republic.

Certainly weaknesses, grave weaknesses, did the state reveal during this period and continues to reveal today. When the so-called bourgeoisie feared that the red wave of socialism would close over their heads, in reality monopoly capitalism was celebrating its orgies. In those early days, when there was weeping and gnashing of teeth in many circles I knew, when people sat behind lowered blinds and only timidly passed a lantern, then I said, my God, I am not afraid of socialism but of social reaction. It will not be caused by what really happened, but by your fear. And unfortunately, that was often the case. The fact that great parts of our bourgeoisie were impoverished under the Weimar Constitution was not caused by the Weimar Constitution or by its social content, nor by socialism, which may have done many wrong things and unfortunately may not have done some right ones. But the responsibility lies with the orgy of monopoly capitalism. Lately, monopoly capitalism does not seem to be doing so well; and while until now it was closely linked with all the reactionary opponents of democracy and the republic, in accordance with its anti-democratic and anti-social nature, today one can observe something resembling an affectation of reconciliation. It almost seems as though the monopoly capitalists would begin to recognize the republic “formally.”Maybe they recall how it was often scornfully said that it was only a formal democracy; and they have neither great respect for nor great fear of the simply formal. There is some indication that a great transaction could take place: recognition of the republic as a formal constitutional schema and, in return, a united “bourgeois” front against socialism. This is not without dangers. But I must say, such a price is too high for the recognition of the “formal”democracy and republic by its opponents. If the content withers, the shell will also shrivel away. Whoever does not want this to happen must, I believe, whatever narrow party basis he may stand upon, stand together with all who wish to truly preserve the Weimar Constitution, the republic, its close link to the forward movement of the social idea so that the republican form will not be robbed of its democratic and social content. All supporters of the democratic, national, and social republic, supporters of its true spirit belong together in opposition to attempts at domination made in manifold guises by anti-democratic, anti-social monopoly capitalism. The nuances may vary in what the supporters seek in terms of political freedom, national unity, and social advancement; but their goals are linked at the core. In any case, in our modern age and under its conditions, the one


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cannot be achieved without the other. One must serve all three, must fight for them together—national unity within the international community, political freedom and democratic equality, and social advancement according to natural development. This, gentlemen, I consider—and I would be happy if you would consider it with me—to be the significance of the democratic republic for the social idea.


Hugo Preuss
 

Preferred Citation: Jacobson, Arthur, and Bernhard Schlink, editors. Weimar: A Jurisprudence of Crisis. Berkeley:  University of California Press,  c2000 2000. http://ark.cdlib.org/ark:/13030/kt209nc4v2/