5. Heinrich Triepel
INTRODUCTION
Ralf Poscher
Heinrich Triepel's significance for the law of the state of the Weimar Republic was the result not only of his scholarly undertakings but also of his practical efforts.
Born on 12 February 1868 in Leipzig, Triepel completed his studies in Freiburg and Leipzig and, with the support of his teacher, Karl Binding, progressed rapidly through the early stages of his academic career. In the winter semester of 1900–01, he succeeded Gerhard Anschütz in Tübingen as professor of the general and German law of the state, international law, and the theory of the state. After appointment at Kiel in 1908, he became a member of the law faculty in Berlin in 1913.
Immediately after the war, Triepel devoted great effort to strengthening the discipline of public law institutionally. In 1920, together with Otto Koellreuther, he became publisher of the Archive for Public Law [Archiv für öffentliches Recht], thus ensuring continuity for the forum founded by Paul Laband. In 1921, thanks to Triepel's initiative, state law theory formed a topic at the German Jurists' Congress [Deutsche Juristentag] for the first time. Triepel himself gave the inaugural speech, on the distinction between statute and regulation.[1]
Even more important than the inauguration of law of the state as a discrete field at the Jurists' Congress was the founding of the Association of German Teachers of the Law of the State [Vereinigung der deutschen Staatsrechtslehrer]. With this, Triepel was responding to the wishes of other colleagues as well.
I
Triepel first gained lasting international recognition in the field of international law through his 1899 work International Law and National Law [Völkerrecht und Landesrecht]. Developing the consequences of the concept of sovereignty, Triepel depicted the relationship between international law and national law as a relationship between independent legal systems. He thus founded the so-called dualist theory, which he defended in 1923 against monism, which Hans Kelsen especially advocated.[5]
Although Triepel went on to be active in the field of international law after 1908 as publisher of the respected Recueil Martens, his interests gradually returned to the law of the state, with which he had already dealt in his dissertation on the Interregnum. With his focus of interest, his methods also shifted. While his work on international law was still written entirely in the style of the conceptual legal tradition of Carl Friedrich Wilhelm von Gerber and Laband, Triepel developed increasingly into an opponent of positivism. This was already apparent in the subtitle of his 1907 monograph on unitary and federal elements in the Reich, A Constitutional and Political Study [Eine staatsrechtliche und politische Studie]. Besides an examination of the Constitution, Triepel offered a detailed portrayal of the historical development of constitutional reality, including an analysis of the positions of political parties. Triepel had not yet brought the law of the state and politics into an alliance. Still, this work showed Triepel's lively historical and political interests, by no means limited to Germany, as his numerous references to Swiss and American constitutional law attest.
Triepel found his lifetime subject in the federal state. He returned to these issues again and again. Even in his last year of life, he took up the subject and wrote on the federal reorganization of Germany.[6] His most extensive work on state law in the Reich, Reich Supervision [Die Reichsaufsicht] of 1917, was devoted to that subject. Here, too, Triepel preceded his legal examination
His speech inaugurating his rectorship in 1926 can be seen as a methodological reflection on the departure from state law positivism already completed by the First World War. In the teleological method he had come to know as an instrument of the jurisprudence of interests [Interessenjurisprudenz] during his period in Tübingen,[9] Triepel found a tool that mediated the legal and political aspects of the law of the state and also provided legal legitimacy to his historical and political interests. In this way, Triepel showed himself more an improver of the old than the originator of a new method-ology.[10] Like conceptual jurisprudence, the teleological method in the law of the state was inspired by private law. His approach broke with positivist methods without having to break with the content of positivism. Teleological argumentation was also found among Weimar positivists such as Richard Thoma.[11] Therefore, the speech was seen not only as a settling of accounts with positivism but also as a rejection of the idealist method [geisteswissenschaftliche Methode][12] that Günther Holstein had promulgated with a strong critical, anti-positivist impetus only a year earlier.[13] It was not even mentioned by Triepel, either in this speech or later.
II
“I am … neither an absolutist nor a democrat, but if someday I would have to decide unconditionally and without further ado for absolutism or democracy, I would, without thinking twice, prefer monarchic absolutism as the lesser evil … in the certainty that it is ultimately better to live under the enlightened or unenlightened despotism of a single person than under the despotism of the never enlightened rabble.”[14] This and other political confessions[15] in the Empire already suggest that Triepel, who considered himself a strong supporter of the rule of law,[16] was less than enthusiastic about the prospects for the Weimar Republic. As a democratic form of state, only a presidential democracy on the American model seemed to him to have any chance of success. His attitude towards the semi-parliamentary system of the Weimar Constitution was skeptical, though always constructive.[17] In Weimar, he was conservative in the sense that he wished to retain “eternal justice”[18] in the new age. Thus Triepel was the first to develop the equality principle of the Weimar Constitution into a principle of justice binding on the legislature. To him, freeing the legislator from all legal restrictions seemed unacceptable even under monarchic constitutionalism, but “in a democratic republic …
Triepel considered the party-state a defect of Weimar, and the history of the Republic did little to make him doubt his assessment. Nevertheless, to his credit, he was one of the first to make the role of parties in the constitutional state the subject of a legal treatise. In his 1927 address inaugurating his rectorship, The State Constitution and Political Parties [Die Staatsverfassung und die politischen Parteien], he diagnosed party rule as a sickness of the commonwealth and contrasted modern mass democracy with an idea, not lacking in nostalgia, of liberal constitutionalism with a parliament of notables.[21]
His addresses reflect the ambivalence with which Triepel initially approached National Socialism. To him, bolshevism and fascism, in which a single party rules the state,[22] epitomized a society perverted into a party-state. Thus after the “enabling law” [Ermächtigungsgesetz], which gave Hitler's government almost unlimited legislative power, Triepel did not mourn the passing of the Weimar multiparty state. He still cherished the hope that “time will succeed in stripping from the now victorious party the dress of a party, and in transforming it into a community encompassing the entire nation, in which everyone feels able to incorporate himself in freedom.”[23] Triepel yearned for a self-administering, cooperatively organized commonwealth.[24] But there is an air of desperation in Triepel's willingness to take Hitler at his word with his talk of legality and law and demands for a “national revolution” to end un-German radicalization and respect for the freedoms in the Weimar Constitution.[25]
During the national socialist regime, Triepel withdrew into works focusing largely on history[26] and the history of constitutional doctrine.[27] He did not take part in the legal idealization of the regime. His distance from the German situation in 1938 is evident in the chapter titled “The Essence of the Leader and of Leadership” [Wesen des Führers und der Führung] in his major study on hegemony.[28] The Jewish background of his wife, Marie Ebers, also stood in the way of any closer relationship with the Nazi movement.
It was commensurate not only with his advanced age but also with the distance between Triepel and his time that at the end of his life he wrote, from an aesthetic perspective, On the Style of Law [Vom Stil des Rechts]. Only with the eye of a scholar sweeping the centuries could he make himself believe as early as 1946 that, next to the beauty of German law, “the ugly blots that emerged in the recent past will somewhat fade.”[29]
Heinrich Triepel died on 23 June 1946 in Grainau, Upper Bavaria.
MAIN WORKS
Das Interregnum: Eine staatsrechtliche Untersuchung. Leipzig: Hirschfeld, 1892.
Die Entstehung der konstitutionellen Monarchie. Leipzig: Seele, 1899.
Völkerrecht und Landesrecht. Leipzig: Hirschfeld, 1899.
Unitarismus und Föderalismus im deutschen Reiche: Eine staatsrechtliche und politische Studie. Tübingen: Mohr, 1907.
“Die Kompetenzen des Bundesstaats und die geschriebene Verfassung” . In Staatsrechtliche Abhandlungen: Festgabe für Paul Laband zum 50. Jahrestage der Doktor-Promotion, vol. 2, edited by Wilhelm von Calker and Fritz Fleiner, 249–335. Tübingen: Mohr, 1908.
“Staatsdienst und staatlich gebundener Beruf” . In Festschrift für Karl Binding zum 4. Juni 1911, vol. 2, 1–85. Leipzig: Meiner, 1911.
“Zur Vorgeschichte der norddeutschen Bundesverfassung” . In Festschrift für Otto Gierke zum 70. Geburtstage, 589–644. Weimar: Böhlau, 1911.
Die Zukunft des Völkerrechts: Vortrag gehalten in der Gehe-Stiftung zu Dresden am 11. März 1916. Leipzig and Dresden: Teubner, 1916.
Die Reichsaufsicht: Untersuchungen zum Staatsrecht des deutschen Reiches. Berlin: Springer, 1917.
Konterbande, Blockade und Seesperre. Berlin: Mittler, 1918.
“Die Entwürfe zur neuen Reichsverfassung” . In Schmollers Jahrbuch für Gesetzgebung, Verwaltung und Volkswirtschaft, vol. 43, 55–106. Munich and Leipzig: Duncker & Humblot, 1919.
Virtuelle Staatsangehörigkeit: Ein Beitrag zur Kritik der Rechtsprechung des Französisch-Deutschen Gemischten Schiedsgerichtshofs. Berlin: Vahlen, 1921.
“Streitigkeiten zwischen Reich und Ländern: Beiträge zur Auslegung des Artikels 19 der Weimarer Reichsverfassung” . In Festgabe der Berliner Juristischen Fakultät für Wilhelm Kahl zum Doktorjubiläum am 19. April 1923, edited by Theodor Kipp and Heinrich Triepel, article 2. Tübingen: Mohr, 1923.
Goldbilanzen-Verordnung und Vorzugsaktien: Zur Frage der Rechtsgültigkeit der über sogenannte schuldverschreibungsähnliche Aktien in der Durchführungsbestimmung zur Goldbilanzen-Verordnung enthaltenen Vorschriften. Ein Rechtsgutachten.Berlin: de Gruyter, 1924.
[as editor] Staatsrecht und Politik: Rede beim Antritte des Rektorats der Friedrich-Wilhelms-Universität zu Berlin am 15. Oktober 1926. Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, Heft I. Berlin and Leipzig: de Gruyter, 1927.
Die Staatsverfassung und die politischen Parteien. Berlin: Liebmann, 1927.
Die Hegemonie: Ein Buch von führenden Staaten. Stuttgart: Kohlhammer, 1938.
Delegation und Mandat im öffentlichen Recht. Eine kritische Studie.Stuttgart and Berlin: Kohlhammer, 1942.
Vom Stil des Rechts: Beiträge zu einer Ästhetik des Rechts. Heidelberg: Schneider, 1947.
LITERATURE
“Bibliography” . Archiv des öffentlichen Rechts91 (1966): 549–57.
Gassner, Ulrich M.Heinrich Triepel: Leben und Werk. Berlin: Duncker & Humblot, 1999.
Hollerbach, Alexander. “Zu Leben und Werk Heinrich Triepels” . Archiv des öffentlichen Rechts91 (1966): 417–41.
Kaufmann, Erich. “Heinrich Triepel” . Deutsche Rechtszeitschrift (1947): 60–61.
Kohl, Wolfgang. “Triepel, Heinrich” . In Biographisches Lexikon zur Weimarer Republik, 345–46. Munich: C. H. Beck, 1988.
Leibholz, Gerhard. “In Memoriam Heinrich Triepel” . In Deutsche Verwaltung, 141–42. Hamburg: Rechts- und Staatswissenschaftlicher Verlag, 1949.
Scheuner, Ulrich. “Triepel” . In Staatslexikon, 7: cols. 1044–45. Freiburg: Herder, 1962.
Smend, Rudolf. “Heinrich Triepel” . In Die moderne Demokratie und ihr Recht: Festschrift für Leibholz zum 65. Geburtstag, edited by Karl Dietrich Bracher, 2: 107–21. Tübingen: Mohr, 1966.
LAW OF THE STATE AND POLITICS
Heinrich Triepel
Originally appeared as Staatsrecht und Politik: Rede beim Antritte des Rektorats der Friedrich Wilhelms-Universität zu Berlin am 15. Oktober 1926 [Speech Inaugurating the Rectorship of the Friedrich Wilhelm University in Berlin on 15 October 1926], in Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, Heft I, edited by the Max-Planck-Institut für Ausländisches Öffentliches Recht und Völkerrecht (Berlin and Leipzig: de Gruyter, 1927), 5–40.
Honored gathering! Respected colleagues! Dear fellow-students!
… Carl Friedrich von Gerber's book on public law contains the clearly outlined program of a new school that makes it its business to cleanse the theory of the law of the state of everything political. Literally, he says that conceptual legal constructions should take the place of political and philosophical raisonnements. The meaning is: What is law can be understood only through what is law. Considered from the standpoint of legal scholarship, the political can only be the material, never the goal. In the law of the state, one must employ the entire sum of legal concepts, analyzed in their simplicity and unspoiled purity in private law, either directly, or where this is not possible because of the variety of material content, then in such a way that they are altered according to the principles of exact interpretation and consistency developed in private law. Gerber then immediately illustrates the usefulness of this method by way of a particular problem in which the “legal nature” of the rights of the monarch, the civil servant, and the subject in public law are revealed. In it, we encounter a series of constructions that would later play a major role—for example, the view that a monarch's rights are his “own” and “genuine” rights, and the claim that the subject's so-called rights of freedom are not rights but instead simply express certain effects of legal precepts on the exercise of state power. Practical consequences are
The new method, which incidentally can be traced back to earlier suggestions by [Wilhelm Eduard] Albrecht, was later employed by Gerber in his appealing Principles of the German Law of the State [Grundzüge des deutschen Staatsrechts]. Then [Paul] Laband—Gerber's intellectual executor, as [Ernst] Landsberg aptly called him—took over the method and treated it with consummate artistry. And Laband's State Law of the German Reich [Das Staatsrecht des deutschen Reiches], the first volume of which appeared exactly fifty years ago, completely dominated more than one generation of German public law scholars and exercised an influence even beyond Germany's borders, particularly in the Romance countries. Few from my generation failed to be entranced by the Gerber-Laband school when we began our careers. Its effect was checked neither by the strong opposition of [Otto] Gierke and Edgar Loening nor by [Felix] Störk's courageous, if somewhat misdirected, attack.
In treating problems of the law of the state, this school was interested in nothing but analyzing public law relations by establishing their “legal nature,” discovering the general legal concepts to which they were subject, and developing conclusions from the principles discovered. This analysis means, all in all, an unfolding of the logical elements of which the concept of a legal institution is composed. Any teleological examination is frowned upon, for the goal served by a legal institution lies beyond its concept. The conclusion thus follows of itself that the law of the state must shun all political considerations, since they include considerations of goals. The school bestows the honorable title “strictly legal” only upon writings that avoid any contact with the political as with the Evil One. Those who do not bow to this tyranny that on occasion almost resembles a court of the Inquisition are, at best, ignored. …
Now it is true that the word “politics” is ambiguous, and thus the relationship between the conceptual approach of public law scholarship and the “political” could be structured in various ways.
One can understand politics as state action; one might see politics, as does [Johan Caspar] Bluntschli, as leading the state and influencing it, as a “deliberate handling of all practical problems in and around the state” [bewuΒte Staatspraxis]. We need not concern ourselves with the question of where to draw the dividing line between the truly political and other state activity—perhaps by using the idea of integration that Rudolf Smend fortunately introduced into the world of state law. For in any case, states' political action, as well as mere technical administration, can support an assessment not only from the standpoint of expediency but also from that of law. Basically,
Until a few decades ago, politics was seen as the theory of the state per se, more or less in the way in which it was treated in antiquity. Thus [Georg] Waitz, for example, refers to politics as the scholarly discussion of the conditions of the state, with consideration of the historical development of states as well as states of the present day. Under this view, constitutional law is part of a comprehensive political science, and the question arises whether the law of the state should be practiced with or without considering the other aspects of this theory of the state. The question remains the same, however, or shifts only superficially, if we assume that the formerly unified concept of politics has dissolved and that the state has now become the object of various disciplines, with one examining its legal aspects and others considering it from the historical or social or psychological or some other standpoint. Whether there can also be politics in a more narrow sense—and with it a scholarly theory of state interests—is controversial but immaterial to us for the time being. For the question is solely whether it is methodologically correct for scholarship to place the law of the state in relation to other disciplines concerned with the state. Everyone would probably agree to this without reservation, were it not being fought passionately in the interests of methodological purity by the newest trend, which likes to describe itself as the logical legacy of the Gerber-Laband school. The young Austrian school led by [Hans] Kelsen, taking as its starting point the epistemologically irrefutable contrast between the “is” and the “ought,” would exclude any causal considerations from jurisprudence in general and the law of the state in particular, since it is a normative discipline. Political discussions are rejected with particular hostility as alien to law, because they are said to be discussions of goals. Although Laband was still willing to admit that the purposes of a legal institution could influence its legal structure and be important in understanding it, such a thought would be anathema to Kelsen, who would declare it “meta-legal,” as it is unattractively called. In this way law, as mere form, is of course and deliberately emptied of any content. Kelsen has gone so far as to call the state a mere legal concept, a point of reference for certain actions; in the end he has equated it with the legal order itself—that is, with a system of norms.
Now, the critical distinction between knowledge gained from legal logic and from causal science is an undeniable advance. But it is a different question whether the brusque one-sidedness with which the latest trend limits legal scholarship to the formal is a benefit. If we assume, without accepting, that the lawyer is no longer doing jurisprudence, but sociology, history, or whatever when he supplements formal, logical, conceptual work with social, historical, ethical, and other considerations, this seems merely a matter of
However, it is not even correct that legal scholarship, even if taken in the most narrow sense, must limit itself to constructs of a formal logical conceptual quality for the sake of its object. The logical school of law has fallen back on a concept of law that, though not wrong, is arbitrarily narrow. It cannot reasonably be disputed that the law concerns an “ought,” not an “is.” However, our discipline deals not only with the transcendental content of law but also with empirically existing legal orders consisting of rules that govern the ordered communal life of people, rules that come and go and differ according to places and times. Therefore, despite everything, every legal system is in itself a “given,” an “is,” and this fact cannot be understood without considering the social relationships that the law orders with its norms. Further, the rules of “ought” in law are always an expression of universal valuations, and their meaning refers to objects seen as means for achieving certain ends. Thus one cannot arrive at an understanding of legal precepts at all
Looked at in the light, it is a mere self-deception for jurisprudence to believe it can construct the entire substance of the legal order formally, logically, and without value judgments. Let us look somewhat more closely at the operation commonly called “legal construction.” First, some simple examples. One constructs when one understands the contract concerning a visit to the theater as a work contract, i.e., a contract for the production of work, namely the performance. One does this in order to apply the civil code provisions on work contracts to the relationship. Or, if I may present an example from the law of the state, there are lawyers who construct the abdication of a head of state as an act of government, in order to bring the act within the scope of the constitutional provisions that require government acts by the head of state to be countersigned by a minister. What does such a construction consist of? Strangely enough, many different explanations are offered. Max Rümelin, who I believe has most closely studied the issue, sees construction as assigning a single phenomenon a place within the system by analyzing and synthesizing its conceptual elements. I will accept this definition. However, somewhat differently from Rümelin, I would like to see construction not as the linkage of a factual predicate to its legal consequence, but as the classification of a factual predicate or a legal consequence within the system for the purpose of such linkage. Construction always refers to legal phenomena or events that cannot easily be subsumed under an established concept. If we bring a blow with a stick under the concept of bodily harm, this is mere subsumption, not construction. Construction is only the preparation in a subsumption that has yet to occur; its purpose is to make the legal phenomenon ready for subsumption. Again, unlike Rümelin, I consider it immaterial whether the concept under which a phenomenon is included is already known or newly created. Numerous concepts familiar to us today, some of which have already become statutory concepts, were originally created by scholars for the purpose of construction—think of the legal transaction, or of rights in rem and in personam, or of confederation and the federal state; it was a construction when Georg Jellinek invented the concept of “state fragment.” The only requirement is that the new concept should work to further the system—perhaps to remove a phenomenon from subsumption under other already familiar concepts, thus giving it a place in the system.
We will thus have to distinguish between two types or two levels of construction. For the first, it is enough to present familiar legal materials as a unity by viewing individual legal precepts as flowing from higher principles, and seeing these, in continuous upward progression, as deriving from concepts placed at the top of the large pyramid. This seeks to view the single as part of the whole, and the whole with its inner connection and cohesion. It is construction for its own sake. We might describe it as comprehending, or, to paraphrase Max Weber's well-known formulation, as understanding construction. A second step, not always taken but quite obvious, consists of taking from the postulated unity of the legal order the authority to derive new legal precepts from the discovered principles—that is, to fill the gaps in the familiar legal material. From the standpoint of the constructing lawyer, what is filled only seems to be a gap, as for him consequence and analogy are mere logical operations that only confirm what is already contained in the existing legal material. Thus here, construction is used for finding law. Philipp Heck has called this the method of inversion. We will call it the gapfilling construction. It is not always possible to tell immediately whether a legal construction aims to reach only the first level or has its eye on filling a gap. The Gerber-Laband school is at any rate devoted to construction in the fullest sense. One may have doubts about its legacy in the Kelsen school, as here jurisprudence is no longer viewed as a practical discipline whose task it is to prepare the administration of law by interpreting the existing and finding new law.
It seems to me to be the failure to distinguish between understanding and gap-filling construction that leads to a disagreement about the historical, and especially the intellectual-historical, foundations upon which the jurisprudence of construction is based. It has been said that the displacement of the politicizing method of the law of the state by the approach of construction may be explained by the fact that the period in which our nation still struggled to find its constitutional form has been superseded by a period of quiet in constitutional politics. This is undoubtedly true to a certain degree. But this would have explanatory power only for the law of the state, while the predominance of construction in the second half of the previous century was found in all areas of legal scholarship. How can this be explained? Many trace it back to the effects of the historical school of law, others to the influence of Hegel—which would, incidentally, not necessarily be a conflict. I consider both of these to be incorrect, or only partially correct.
There is no doubt that even the leaders of the historical school of law use construction in their presentation of subsisting law. [Friedrich Karl von] Savigny's famous monograph on possession is, for many, a model of jurisprudential construction, and Albrecht's Gewere forms the Germanist counterpart to it. But is not Savigny's inclination toward construction a part
The result is similar when we try to trace the jurisprudence of construction back to Hegel. Hegel unquestionably exercised a great influence on the lawyers of the first half of the previous century, and to some extent even beyond. Public law and, besides criminal law, the law of the state and
But the main point is that legal construction existed long before the historical school of law and long before Hegel; one might even say it has existed since people began to feel and satisfy a need for an immanent order in legal material, except that it was not always consciously treated as a method or as the only method. Often it was used only to model systems or for didactic purposes; often it served only as understanding, not as gap-filling construction.
None of these various ways of describing and finding the law can be related to any particular legal philosophy. On the contrary, each attempted to accord with its period's Weltanschauung s and forms of cognition. They are as related to the conceptual realism of scholasticism as to the abstracting tendency of the Enlightenment and of Kantian and post-Kantian idealism, and finally to the positivist narrowing of thought in general in the most recent eras—a way of thinking that does not look beyond the subject matter and only considers valid what it can extract from it. All the types of the jurisprudence of construction have in common only one principle. It is, if I may say so, a professional lawyer's view. The method of construction aims to serve the needs of the theorist and the practitioner, to create certainty about the legal precepts that guide life in society. Legal certainty is necessary to reassure the citizen whose interests are affected by law, as well as to reassure the conscience of the legal researcher and of the lawmaking authority. The infallibility of the logical conclusion, the obviousness of its outcomes, alone seems to be capable of creating this reassurance. Thus it was believed that the best legal method was found in operating with crystal-clear
Thence also the popular comparison of jurisprudence with mathematics, the description of law-finding as “calculating with concepts,” the demand that legal doctrine determine for each his own with mathematical precision. It has been claimed repeatedly, from Leibniz to Wolff and Kant, that legal scholarship is related to mathematics. Hints of this may be found even in Savigny. Even more recently this idea has appeared among philosophers, for example in [Wilhelm Max] Wundt and [Hermann] Cohen; and Kelsen, a student of Cohen's, calls jurisprudence a geometry of the total legal phenomenon, though he also admits that this comparison does not work in every respect. At one time the matter was taken quite literally, and there were even attempts to solve questions of the law of the state through simple arithmetic. A famous debate turned on the question whether, in a dispute between the three curia of the old Reichstag, the Kaiser could join the majority and elevate their decisions to Reich law—whether he could, for example, join the college of electors and the council of princes to override an opposing vote by the free cities. Here, some based their views on the doctrine, defended by [Dietrich] Reinkingk, that the Kaiser and the Reichstag possessed sovereignty [Majestät] pro partibus indivisis—thus the Kaiser held half and each of the three estates one-sixth. From this, it was derived with mathematical certainty that the Kaiser and the two Reich estates together, with ten-twelfths, or the Kaiser even if he had only one estate on his side, with eight-twelfths, would be able to achieve more than the remaining twoor four-twelfths. Pütter still had to fight such nonsense.
But what is the truth about the apodictic certainty that is the aim of the intellectualist methods of formal logic? It is nothing more than deceptive facade. No lawyer has yet achieved a reasonable result using this alone, and if he thinks so, he deceives himself; for a seemingly pure logical analysis and synthesis of concepts, if it is to make sense, cannot be made at all if not supported by value judgments. … Evenmoresoconcept-creation and conceptclassification growing out of a legal construction cannot be achieved without teleological ingredients. Thus it can easily happen that the constructor is seduced into filling a concept from the start with what he hopes to take from it later—thus arriving, by hook or by crook—at the desired result in a bona fide way. In the law of the state in particular, hundreds of constructions can be found with which results considered useful are brought about in this way. One example in place of many: A young scholar of the law of the state was once interested in the aforementioned question whether the abdication of the monarch required countersignature by a minister. It required this only if it were an act of government. Now, in order to have it appear to be one, the scholar broke it down into two acts: the monarch's petition to the state to release him from office—this petition was made by
The jurisprudence of construction in the law of the state is not loaded with goal-oriented political considerations, consciously or unconsciously, not when it deals with modest questions of detail. It is no exaggeration when I say that the majority of theories of state that have become influential for the law of the state—a majority of them legal constructions—were posited with regard to political goals and used to justify political acts. The doctrines of the state or social contract, of sovereignty, and of separation of powers were not mere products of theoretical speculation, but have been from the start the pillars of state and church policy. This can be followed into the modern period. The doctrine of the legal person of the state, like its opposite, the private-law construction of the state, were, as Albrecht correctly saw, decisive elements in the programs of political parties. The construction of the right of the monarch as his own right to state power, the concept of the bearer of state power, the formulation of the concept of the federal state were fashioned or used as crutches for political movements. Even Laband's doctrine of the contrast between statutes in the material and in the formal sense, apparently politically quite neutral, grew out of the Prussian budget conflict of the 1860s; it certainly had a political tendency, and the passion with which it was fought by [Albert] Hänel had a political background. Gierke correctly perceived an “unmistakably absolutist streak” in Laband's law of the state [Reichsstaatsrecht], and something similar may be observed in Otto Mayer's supposedly entirely apolitical administrative law constructions.
Yet in all these cases, it ultimately became clear that the most contradictory conclusions could be drawn from concepts; one could interpret the concepts more broadly or narrowly without being logically incorrect, and their so-called rightness generally depended only on the breadth of the inductive
Thus it becomes clear that the logical school of the law of the state quite correctly accuses traditional scholarship of having used political goals and values to mold its own concepts, often in contradiction with its own basic methodological views. But we draw different conclusions from this than the intellectual purists. It is not our opinion that teleological considerations should be banned from legal theory. We believe that, instead of hiding behind the mask of logic, they must openly seek and claim their place in legal doctrine. Because law itself is nothing but a complex of value judgments on conflicts of interests, the teleological method is the suitable method for the object of legal theory. Thus in the law of the state too, we are not afraid of, but demand, a linkage of political considerations with logical, formal conceptual work. Today we make a stricter distinction between purely political and legal considerations than did the liberal public law scholars of the time of [Carl von] Rotteck and [Karl Theodor] Welcker or the conservatives, such as [Friedrich Julius] Stahl and others; we do not desire a return to the days when the law of the state was replaced by politics. And we especially loathe it when political trends try to distort the subsisting law. But we so little avoid the political that we even declare ourselves unable to interpret law without considering the political. Yet far be it from us to scorn legal construction as such. On the contrary, we recognize in it perhaps not the only, but certainly one valuable, and as yet unsurpassed, means of modeling systems, without which we would have had a difficult time mastering the material. We scholars of public law, especially, have much to be grateful for in this respect. Otto Mayer's method of construction was what actually allowed us to master the virtually limitless bulk of administrative law. Thus we make obeisance to understanding construction. We even appreciate construction, though with some reservations, when it serves as preparation for the second main task of the lawyer—supplementing the legal material by developing new legal precepts. For it provides us with comfortable labels we temporarily may give to legal phenomena that have yet to be examined, until we pass final judgment on them according to a principled weighing and judgment of interests. Thus construction may serve as a “hypothesis for subsumption and analogy.” But should it try to play more than this heuristic part, should it dare to take on gap-filling functions, should it even behave as though it were the only method of salvation, then we will throw down the gauntlet.
It cannot be ignored that instrumental jurisprudence is exposed, and sometimes succumbs, to the danger of shallow relativism or raw utilitarianism; even Ihering did not always escape this danger. For the law of the state, above all, a method that bases all its interpretation and gap-filling on values seems questionable. “A state,” said Gerber, “based on opinions can have only an insecure, unstable existence.” But is the formal method of logic based any less on “opinions”? There is no doubt—and I ask you, my fellow students, always to remember this—that many public law concepts and axioms wearing the guise of the purely legal are nothing more than manifestations of political, even party-political tendencies. But teleological jurisprudence is forced to show its colors. It makes no secret of the fact that its results depend on value judgments. For a jurisprudence of interests that sets itself the task of “weighing” interests against each other must, if it is not to stop halfway, spell out the standards against which this weighing takes place. Instrumental jurisprudence makes it obvious, generally even to the untrained eye, when it reaches the border between subjective and objective assessment of interests. It is clear, however, that its task is to seek the standards it will follow in the objective sphere. We are all subject to error, and it can happen that we confuse subjective belief with objective validity. But such error is easier to discover than the mistake of logical construction. In any case, when we interpret and fill gaps we consider it our duty, in the law of the state as in private law—for there is only one legal method—we consider it our duty to stick, first of all, to the values we see expressed in laws. If this fails to help us, we are obliged to apply the standards we find in the legal consciousness of the legally bonded community. Even if we ultimately look into our hearts—if we decide, as required by the by-now classic provision of the Swiss civil code, on the basis of the rule we would create if we were legislator—we do not act according to individual caprice. The legislator also must create its norms not capriciously, but on the basis of factually justified considerations. Thus perhaps it could be better put as follows: In case of necessity, we decide as we would have to if we were the legislator. After all, our consciousness is merely part of an extra-individual spirit. When we look into our hearts, we are also reaching for eternal stars. For the jurisprudence of interests, the guiding star remains the idea of law, eternal justice. To serve only this is our duty; to serve it faithfully should be our vow.