8. Hermann Heller
INTRODUCTION
David Dyzenhaus
The initial research for this project was generously funded by the Alexander von Humboldt Foundation and the Social Sciences and Humanities Research Council of Canada. I thank Cheryl Misak for her comments on a draft of this essay.
Hermann Heller (17 July 1891–4 November 1933) came from a Jewish family in the Austro-Hungarian Empire. He interrupted his studies in law by volunteering for service in the Austrian army during the First World War. His experiences as a front-line fighter left him with a heart condition, which contributed to his death at the age of 42. But his poor health did not dampen his deeply combative spirit—a spirit that he put at the service of German social democracy. In March 1920, together with Gustav Radbruch (who had successfully sponsored Heller's Habilitationsschrift at Kiel), he participated in the armed resistance to the Kapp Putsch, aimed at the overthrow of the Weimar Republic. In 1932, he appeared as the legal representative for the parliamentary party of the Prussian Social Democrats in the case Preußen contra Reich, which tested the constitutional validity of the conservative federal government's coup d'état against the Prussian (socialist-dominated) state government. In oral argument before the court,[1] Heller frequently incurred the wrath of the president of the court by refusing to allow the court to ignore the fact that the complex legal issues at stake were also political issues with profound implications.[2]
Between 1920 and 1932, Heller participated in building socialist youth
This manuscript, together with Heller's other works, which encompass a broad range of topics—political and legal philosophy, political science, practical legal and constitutional issues, the problem of sovereignty in domestic and international law, as well as studies of Hegel, socialism, education, nationalism, and fascism—were published in three volumes in 1971; a revised edition was published in 1992.[4]
The time it took for Heller's works to be made generally accessible in this form attests to the relatively sparse interest in his position within Germany; he is almost unknown to the English-speaking world. His obscurity may have more to do with the novelty of his ideas rather than with the fact that he did not live long enough to elaborate them or that his political involvement in Weimar meant that his ideas were too closely tied to a particular context.
Heller argued (as did Carl Schmitt, contra Hans Kelsen) that all conceptions of law are fundamentally political and tied to particular historical and social contexts. Like Schmitt, he sought to ground legal philosophy in society and culture. However, he opposed as dictatorial Schmitt's celebration of the elimination of political conflict through the imposition of the Volk's “substantive homogeneity” on a pluralist society. Rather, Heller shared with Kelsen a commitment to democracy, to the liberty of the individual, and to social equality. Heller also shared Kelsen's respect for the idea that it is important for a decent political society to make sense of the constraints of the rule of law.
The task that Heller set himself in legal and political philosophy was to vindicate a highly political conception of the Rechtsstaat—the state based on the rule of law. This conception sought to defend and extend democracy in the face of attack from the fascist right (or the equivalent on the left), a result achievable, Heller argued, only through the transformation of the formal Rechtsstaat—the product of liberal thought—into a social Rechtsstaat. In the absence of a “social homogeneity” that guarantees social equality, he reasoned, individual liberties for which liberals fought are worse than worthless. For these liberties can be politically and socially divisive when groups of individuals find the law's formal promise of equality and liberty for all to be
Heller sought to reconstruct legal theory, not to destroy it from within. His principal target in the field of law was Kelsen's positivism—in part because Kelsen had presented the most sustained account of how law works—but Schmitt remained Heller's principal political target. Heller understood Schmitt's philosophy of politics as the one most likely to exploit the problems raised by Kelsen's apolitical Pure Theory of Law—in particular, by the logic of legal norms, which grants legal validity to any political act.
Heller was for that reason committed to demonstrating not only the illogic of Kelsen's positivism but also its danger. In his view, Kelsen paves the way not for the overcoming of Weimar's crisis but for Schmitt's subversion of Weimar. Kelsen's positivism, which indiscriminately grants the title Rechtsstaat to any state, is, in Heller's words, the “ideal catalyst for dictatorship.”[6]
Schmitt as well sought to show that legal positivism could not help but accede to sovereign decision, and Heller's critique of Kelsen comes very close at times to Schmitt's. Indeed, Heller derived from Schmitt a sense of the importance of decision and of sovereignty in politics. But there is a crucial difference between Heller's and Schmitt's attacks on Kelsen, so much so that Heller seems at times quite close to Kelsen, at least to those passages in the Pure Theory where Kelsen seeks to substantiate the principle of legality.[7]
Heller, like Schmitt, sought to discern the politics of the Rechtsstaat, but his ultimate intent was entirely different. Schmitt posits that the Rechtsstaat is in fact a normative nothingness; Heller wants to show that while there is nothing at the end of the positivist trail, this does not mean that there is no valuable conception of politics to be found within the theory and practice of the Rechtsstaat. Under his view, one can make sense of the enterprise of governance through law only by nesting law within a highly political democratic theory. One of the two hallmarks of his project was that it sought to resurrect the natural law idea of the Rechtsstaat as something substantive and material that sets genuine boundaries to the exercise of power.
Such a theory was to some degree essential for making sense of existing law. Heller did not deny the importance of positive law to any constructive legal theory, but rather the proposition that any theory of positive law can itself be positive in Kelsen's sense—that is, informed solely by some scientific value, where science is understood by contrast with politics, ethics, and sociology. He maintained that such a theory of positive law must end in eliminating the very characteristic of law onto which it exclusively fastens: Positivism cannot explain even the positivity of law.
Heller argued that positivism is plagued by this problem because a theory of law, like any social and political theory, cannot merely reflect reality without risking self-destruction; legal theory, in seeking to understand what is, is prescriptive as well. But the theorist has, in Heller's view, a different task than the politician, for whom ideas are simply weapons in a political battle: The theorist must subordinate political practice to the aim of constructing a theory of such practice, with a view to showing which particular tendencies within the practice should be developed. Moreover, in accordance with his general anti-relativist stance, Heller maintains that there are standards of correctness that can be used to discriminate between political theories. His understanding of the importance of theory is thus deeply pragmatic at the same time that it sets high theoretical goals for inquiry.[8]
The key distinction in Heller's work is between positive law and fundamental principles of law. The idea of law must be established by “relativizing positive law to supra-positive, logical and ethical, fundamental principles of law [Rechtsgrundsätze].”[9] Heller's attempt to show an inherent connection between legality and legitimacy rests on precisely this distinction. But Heller also seeks to avoid equating legality and legitimacy in a way that would forfeit the critical ethical and legal conscience that he considers crucial to a healthy political culture. He argues that the modern tendency to strip law entirely of moral elements leads to the glorification of the contingencies of power—that is, to anarchy. At the same time, however, Heller maintains that one should resist tendencies that end in the total moralization of law.[10]
Nevertheless, he puts himself at risk of collapsing the distinction between positive legality and principles of legitimacy. For the second hallmark of Heller's project is his insistence that the content of any Rechtsstaat concept be appropriate to the circumstances of the times. Above all, this means that the supra-positive fundamental legal principles of which Heller speaks are not principles that come from outside of our general social practices. In his view, it is a condition of any modern attempt to justify the state or law that its justification be immanent—that is, internal to the practice. It must not appeal to anything that transcends our practice altogether, although it may appeal to, say, principles embedded in our ethical practices. Such principles will be legal principles that transcend positive law in the sense that we need to resort to them in order to understand the force of positive law and to give it appropriate content. But that does not make our recourse to them itself transcendent, since it stops at a practice, that is, in our ethical practices. These practices are but part of the array of practices that compose a particular culture or social reality, but for Heller they are a crucial part, not least because of the constitutive role they play in legal practice and, as a result, in the constitution of the power of the state.
Kelsen and Schmitt would both hold that Heller's appeal to ethics cannot
Heller argues that Schmitt and Kelsen both make the mistake of supposing that ethical practices are fruitless because they do not afford us an absolutely certain or secure foundation, and that they should therefore play no role in our understanding of law. Such a mistake, in his view, amounts to declaring that the roof of a house whose foundations are insecure must simply do without foundations and stand by itself.[12] While Kelsen and Schmitt attempt to ground their theories—Kelsen in science and Schmitt in “concrete order” thought[13]—Heller argues that their attempts fail; only ethical and political principles, based in social and cultural practices, can serve as a foundation for a Rechtstaat.
As the most recent philosophical debates on such issues attest, Heller's argument is at the very least difficult, and, according to many, impossible. He wants ethical foundations for law and the state that will provide a theory of legitimacy, but a theory that remains immanent. For some, the insight that all we have is our practices, so that justification is always immanent, is evidence that it is high time to abandon the search for foundations or justifications. Others argue that our ultimate values cannot be made dependent on what is internal to our practices: These values must be found beyond, whether in some divine source or in principles of rationality that transcend practice.
Heller begins his argument by attempting to demonstrate how both alternatives to his approach are unacceptable. The attempt to find standards of rationality that transcend practice ends in Kelsen's substanceless and thus defenseless theory of norms; Kelsen's theory of law cannot take into account the fact that power is constitutive of law and thus makes law prey to power. By contrast, Schmitt's complete relativization of law to power (and to the contingencies of the particular situation of power) leads to the irrational deification of power and decision. Unlike Schmitt (who places his hopes for purifying society of its contradictions and tensions on the advent of a new prophet) and unlike Kelsen (who similarly seeks to purify law) Heller argues for a normative, social basis for law that maintains its inherent contradictions and tensions.
Of course, that the alternatives are unacceptable does not of itself prove Heller correct. The positive step in Heller's project is his argument that just as power must be understood in terms of norms, norms cannot be understood outside of their relationship with the power that is required to positivize them.
In contrast to the positivist tradition, Heller argues that obedience to law is not merely something that has to be secured for a legal order to be effective; obedience is constitutive of such order. Law must secure obedience by appearing to those subject to it not just as an order, but as a norm—as a prescription with a justified claim to be legitimate. This imposes fundamental principles, both logical and ethical, on those who would make law. The principles are logical in that law must contain a content that is communicable to (that is, understandable by) its subjects. But law will not be communicable unless it also seeks to comply with ethical principles that justify its claim to legitimacy. One of the most important among these principles is that of the equality of all individuals before the law.[14]
In short, in order to exercise political power, a ruler needs to secure a framework of order in which he can exercise power; since positive law is essential to securing order, law and political power are mutually constitutive. But they cannot be constitutive in this manner unless law—that is, the legal order or legality—has an inherent claim to legitimacy or justification.
The basis of Heller's argument in this respect is a concept of human nature that is necessarily socially and culturally constructed. Human nature is culturally determined but also determinative of culture. Culture comes about because human nature is utopian in the sense of setting goals and then trying attain them. But these goals necessarily operate within the context of a culture that is not directly of our making and which thus forms a relatively objective and constitutive basis for our individual efforts.
In accordance with this concept of human nature, the social and the individual, norm and power, as well as other pairings that recur in our attempt to understand the world around us, must be understood as components of a dialectical unit. They are not reducible to each other nor to any common element; rather, the existence of the one presupposes the other. Such a dialectical concept is necessary to capture, for purposes of theory, the necessarily contradictory nature of the legal order, which is but a part (albeit a relatively autonomous one), of the political sphere, which is similarly merely a component of the social sphere, itself—by nature—contradictory.
Much work needs to be done to elaborate this position. Besides its inherent difficulties, the argument's exposition in the Staatslehre is plagued by ambiguities, the result not only of the book's incompleteness but also, undoubtedly, of the effect on Heller's state of mind of the total collapse of the democracy that he had made his life's work. But there can be no doubt about the power of his project.
Wolfgang Schluchter, in his outstanding exposition of that project, identifies Heller's intent as to “make comprehensible the structure of law, morality, and power, without tearing one of these limbs loose from the others or identifying one with another.”[15] The power of Heller's argument is perhaps best demonstrated by the fact that it is only recently that similar
MAIN WORKS
Heller's collected works are published in a three-volume edition edited by Christoph Müller: Hermann Heller, Gesammelte Schriften, 2nd ed. (Tübingen: Mohr, 1992). What follows is a list of his most significant works in legal philosophy, which are published in volume 2 of the Gesammelte Schriften—Recht, Staat, Macht [Law, State, Power] and volume 3, Staatslehre als politische Wissenschaft [The Theor y of the State as Political Science].
Gesammelte Schriften, II: Recht, Staat, Macht
Grundrechte und Grundpflichten. 1924. Pp. 281–317.
Die Krisis der Staatslehre. 1926. Pp. 3–30.
Die Souveränität: Ein Beitrag zur Theorie des Staats-und Völkerrechts. 1927. Pp. 31–202.
Der Begriff des Gesetzes in der Reichsverfassung. 1928. Pp. 203–47.
Bemerkungen zur staats- und rechtstheoretischen Problematik der Gegenwart. 1929. Pp. 249–78.
Die Gleichheit in der Verhältniswahl nach der Weimarer Verfassung. 1929. Pp. 319–69.
Politische Demokratie und soziale Homogenität. 1928. Pp. 421–33.
Rechtsstaat oder Diktatur?1929. Pp. 443–62.
Freiheit und Form in der Reichsverfassung. 1929/30. Pp. 371–91.
Ziele und Grenzen einer Deutschen Verfassungsreform. 1931. Pp. 411–17.
Europa und der Faschismus. 1931. Pp. 463–609.
Bürger und Bourgeois. 1932. Pp. 625–41.
Autoritärer Liberalismus?1933. Pp. 643–53.
Gesammelte Schriften, III: Staatslehre als politische Wissenschaft
Staat. 1931. Pp. 3–23.
Political Power. 1934. Pp. 35–44.
Political Science. 1934. Pp. 45–75.
Staatslehre. 1934. Pp. 79–395.
LITERATURE
Albrecht, Stephan. Hermann Hellers Staats-und Demokratieauffassung. Frankfurt am Main: Campus, 1983.
Blau, Joachim. Sozialdemokratische Staatslehre in der Weimarer Republik. Marburg: Verlag Arbeiterbewegung und Gesellschaftswissenschaft, 1980.
Caldwell, Peter. The Theory and Practice of Weimar Constitutionalism. Durham, N.C.: Duke University Press, 1997.
Dyzenhaus, David. Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar. Oxford: Clarendon Press, 1997.
Müller, Christoph, and Ilse Staff, eds. Der soziale Rechtsstaat: Gedächtnisschrift für Hermann Heller, 1891–1933. Baden-Baden: Nomos Verlagsgesellschaft, 1984. [Selections from these essays appear in Staatslehre in der Weimarer Republik: Hermann Heller zu Ehren, ed. Christoph Müller and Ilse Staff (Frankfurt am Main: Suhrkamp, 1985)].
Robbers, Gerhard. Hermann Heller: Staat und Kultur. Baden-Baden: Nomos Verlagsgesellschaft, 1983.
Schluchter, Wolfgang. Entscheidung für den sozialen Rechtsstaat: Hermann Heller und die staatstheoretische Diskussion in der Weimarer Republik. 2nd ed. Baden-Baden: Nomos Verlagsgesellschaft, 1983.
POLITICAL DEMOCRACY AND
SOCIAL HOMOGENEITY
Hermann Heller
Originally appeared as “Politische Demokratie und Soziale Homogenität,” in Hermann Heller, Probleme der Demokratie, I. Reihe, Politische Wissenschaft: Schriftenreihe der deutschen Hochschule für Politik in Berlin und des Instituts für auswärtige Politik in Hamburg 5 (Berlin: Walter Rothschild, 1928), 35–47. Reprinted in Hermann Heller, Gesammelte Schriften, II: Recht, Staat, Macht, 2nd ed., edited by Christoph Müller (Tübingen: Mohr, 1992), 421–33. Translated by David Dyzenhaus.
The question of what significance social homogeneity has for political democracy is inexhaustible. Here this question will be explored mainly by a clarification of basic concepts from a political (and thus not social, economic, or ethical) standpoint.
Like any other system of political domination, the democratic is also in essence a territorial decision of potentially universal extent. One rules politically when one makes the final decisions in regard to those acts that pertain to the unity of cooperation or when one engages significantly in the unity of territorial decision. The universality of the territorial decision is of course only a potential one. But if the unitary cooperation—the unity in the plurality that since Machiavelli has been called the state—is to be established, any question that pertains to the order uniting the social life of that territory is potentially subject to political decision. The judgment about the relevance of this or that social act for the unity of cooperation changes with the historical and social situation and location.
The unity of territorial decision makes the essence of the political comprehensible to us. It is the process of dialectical adjustment whereby the unending plurality and perplexity of diverse social acts are brought into an
We call the state the unity of those acts that constitute the institution of territorial decision. Hence, the basic problem of all politics is the following: how this unity of territorial decision is established and maintained, on the one hand, amid the plurality of those acts of will that constitute it, and, on the other hand, amid the plurality of surrounding territories with their domination. This universal unity of territorial decision is of necessity grounded in the “social-unsocial nature” of human beings—in both their essential characteristics of diversity and sociality. It is only in society that the human being, positioned between god and animal, becomes human; only in his unmistakable uniqueness does he come to and remain in spiritual-intellectual and physical existence. The universal, operative unity of a territorial decision, however it comes into existence, is thus the conditio sine qua non of the metaphysical, as well as the physical, survival of the human being.
Sociability, which is a fundamental presupposition of the earthly human condition, manifests itself above all as a natural fact that extends down to the animal world. In human society, individual diversity and particularization necessarily correlate, not solely with a community of a natural kind but also with an intellectual decision. While the incomprehensible orders of natural drives play a part, it is also (and above all) the hierarchical “superstructure” of the intellectual orders that gives coherence to the eternally antagonistic structure of human society. The common life of human beings is always a common life that is given order by the concrete human decisions of the will, whereby communities that grow on a naturalistic basis in no way prove themselves as the most stable. An example of an ideal power is that which for thousands of years has joined and divided human beings in the Catholic Church.
These decisions become political as soon as they concern the unity of territorial interchange and cooperation. Increasing civilization and division of labor in combination with an increasing range and complexity of social relationships heighten the necessity for willingly established orders and multiply the number of political decisions made from the center. It also widens therewith the activities of the political unity of decision working
All politics consists in the formation and maintenance of this unity. In an emergency situation, all politics must eventually answer an attack on this unity with the physical annihilation of the attacker.
Therein lies the correct core of Carl Schmitt's claim that the specific political distinction is the distinction between friend and enemy. Politics is fundamentally negated when there is no longer the readiness in an emergency situation to annihilate the one who mounts an internal or external attack on the political unity. A state abolishes itself if it forbids the use of deadly force in all circumstances, or fails to shoot when its representatives are under fire from within or without.
But one must contest Carl Schmitt's view that the friend-enemy distinction is specifically political, a distinction to which all political acts and motives can be reduced. Besides the fact that it is epistemologically inadmissible to arrange this distinction among the categorical value-distinctions of good and bad, beautiful and ugly, useful and harmful, Schmitt's friend-enemy distinction is circular. For, without the adjective “political,” the distinction indicates nothing essentially political. “My friends are your friends, and your enemies should be my enemies,” can apply just as well to the political friend as to any other friend who shares convictions—childhood friend, business friend, and bosom friend. Carl Schmitt is blind to the sphere of unity-formation within the state as politics. Suppose that in fact all political activity could be reduced to the friend-enemy distinction, where the enemy means the one who “in some specially intensive sense is existentially something alien and strange,”[17] one who must be fended off and fought, if need be annihilated, for the protection of the form of life appropriate to its essence. It would follow that the establishment and existence of political unity would be something altogether unpolitical. Schmitt sees only the accomplished political status; but this is not something static; on the contrary it is something that daily has to be formed anew, un plébescite de tous les jours [a daily plebiscite].[18]
The dynamic process whereby the state becomes and maintains itself as the unity in the plurality of its limbs is politics in at least as meaningful a sense as the way in which the state maintains itself in external affairs. The word “politics” derives from polis, not from polemos [war], even though the common root of these terms remains significant. Equally, whether or not one regards it as possible or desirable, the civitas maxima [a supreme or world state] is at the least a theoretically unobjectionable supposition that does not contradict the human condition. In our case it serves to show that the political friend-enemy distinction is a category that is not required in all circumstances. By contrast, the unity of territorial decision would adequately characterize even the essence of the world-state. Hence, Schmitt's friend-enemy
Democracy means rule by the people. If the demos [people] is supposed to kratein [rule] it must under all circumstances form a unity through action and decision [Wirkungs-und Entscheidungseinheit]. That is, like any form of domination, democracy must exhibit a system for unifying wills for which the law of the small number is always valid. The specific nature of the democratic form of domination consists in the fact that its representatives are appointed collegially and have a magisterial and thus not sovereign position. Each democratic representative is directly or indirectly both to be summoned and dismissed by the people, directly or indirectly. Despite his power as representative to make autonomous decisions, he remains legally bound to the will of the people by means of a rationally posited order. The bond that characteristically links democratic representatives to the people is not a sociological or perhaps social-ethical one. Such a bond exists even for autocratic representatives. Indeed, there is no form of domination for which Spinoza's saying is not valid: oboedientia facit imperantem [obedience makes the ruler].[19] It is only in democracy that this bond is additionally a legal one and equipped with effective legal sanctions. In democracy, the methods of appointing representatives can be very different. The direct election of central organs developed in liberal democracies is not the only way of selecting democratic representatives. An election mediated by a council system also counts, when it is not merely the appointment of representatives of purely economic interests, bound by an imperative mandate. There are countless possibilities for the status of democratic representatives. Besides parliamentarism and a democratic council system, one can also call democratic the experimental forms of representation in American cities that do without parliament and councils and simply summon one or two representatives with the widest powers of decision, subject to recall [English in the original] at any time.
The appointment of representatives is the most important phase in the dynamic of the formation of political unity. The whole problematic of contemporary democracy resides in the fact that the democratic appointment of representatives is supposed to take place in a legal process from bottom to top. The contingencies of history determine how far down the bottom reaches, who should be part of the ruling people, and who is to be excluded by reason of age, sex, or differences in education and property.
It is the insight into the significance of the democratic appointment of representatives that first permits an understanding of the great, though much misunderstood and much maligned, significance of political parties in democracy. They are indispensable even in the council system as the essential factors in that system for unifying wills that we call the democratic
The significance of social homogeneity for democracy is also comprehended in the problem just outlined. Democracy is supposed to be a conscious process of the formation of political unity from bottom to top; all representation is supposed to remain legally dependent on the community's will. The people as a plurality is supposed consciously to form itself into the people as a unity. For the formation of political unity to be possible at all, there must exist a certain degree of social homogeneity. So long as there is belief in such homogeneity and the assumption that the possibility of arriving through discussion at political agreement with one's opponent exists and so long as can one debate with one's opponent and renounce suppression by physical force. Carl Schmitt is therefore very wide of the mark when he thinks he has hit the “spiritual center” of parliamentarism. For he, taken as he is by the irrational allure of the myth of force, defines the ratio of parliament as the belief in the public nature of discussion and in the discovery of truth through an unconstrained marketplace of ideas.[20] Such a justification may formerly have been welcomed by some rationalist apologists and even more by contemporary opponents of parliamentarism. In fact, intellectual history shows as the basis of parliamentarism the belief, not in public discussion as such, but in the existence of a common foundation for discussion and thus in the possibility of fair play [English in the original] for one's internal political opponent, in the relationship with whom one thinks one can exclude naked force and come to agreements. Only when this consciousness of homogeneity disappears does a party, which has until that time been one that debates, becomes a party that dictates.
It is thus the case that the degree to which it is possible to form a political unity depends on the extent of social homogeneity; likewise the degree to which it is possible to put in place a system of representation, and stabilizing the representatives' position. There is a certain degree of social homogeneity without which the democratic formation of unity is impossible. The democratic formation of unity ceases to exist when all politically relevant sections of the people no longer recognize themselves in any way in the political unity, when they are not able to identify themselves in any way with the symbols and representatives of state. In that moment the unity is cleaved, and civil war, dictatorship, and alien domination are in the cards. The difficult birth of the continental coalition governments, their short duration, as well as their lack of any far-reaching operative effect, are the most obvious symptoms of an insufficient social homogeneity and, therefore, most dangerous signs of the crisis of our democracies.
A correct understanding of this situation (let alone an appreciation of it or change in it) is today made endlessly difficult by the twin-brothers of a substanceless form of thought: the utopian idealism that rests simply on
But social homogeneity can never mean the abolition of the necessarily antagonistic social structure. The peaceful community free of conflict and the society without domination can be meaningful as prophetic promises. But as a political aim this way of bringing a community of saints to earth, shared by Ernst Michel, denatures the religious as well as the political sphere. Social homogeneity is always a social-psychological state in which the inevitably present oppositions and conflicts of interest appear constrained by a consciousness and sense of the “we,” by a community will that actualizes itself. This relative equalization of the social consciousness has the resources to work through huge antithetical tensions, and to digest huge religious, political, economic, and other antagonisms. One cannot say definitively how this “we-consciousness” is produced and destroyed. All attempts to find the impulse for this consciousness in a single sphere of life have failed and must fail. All that we can rightly know is that in each epoch a correspondence between social being and consciousness—in other words, a societal form—emerges. It is always the sphere in which the consciousness of the epoch is most at home that is also decisive for social homogeneity.
In modern Europe, where since the Renaissance ontology has been thisworldly, the most important factors of social psychological equalization have been common speech and a common culture and political history. The contemporary zeitgeist, whether it assumes an idealist or materialist air, knows in truth nothing but the naturalistic sphere of reality. The intellectual “superstructure” dissipates into a derivative, into a powerless ideology and fiction above the economic, sexual, or racial—modes of being that have to an increasing extent been decisive for social homogeneity. In so far as it exposes the positivistic and historicist superstitions, this ideological lesson is quite healthy for human hubris.
However, in politics an awful question is raising its Medusa's head—the question of how one can affirm today's democracy in the midst of these huge class and racial conflicts. Democracy's existence is dependent to a much greater degree than any other political form on the success of social equalization. One can understand why today both the left and the right maintain that it is impossible to take a democratic path in forming political unity. The neo-Machiavellism of a disillusioned bourgeoisie wants, in the spirit of Vilfredo Pareto, to use democratic, nationalist, and socialist, in short all “ideologies” only as arcana imperii [mysteries of power] in order dictatorially to maintain itself in power amid the eternal “cycle of elites.” In Germany, too, monarchism is, at least for the younger generation, exclusively a disguise for the yearning for the “strong man” who acts and does not
To be sure, the last centuries have brought about civil homogeneity. There no longer exist slaves in the legal sense, people who enjoy no freedom under the law and no liberty of action and whose exclusion from the state was taken for granted in the ancient democracies. Every individual, and not just every citizen, enjoys the formally equal protection of person, family, and property. And this is also how formal-legal political homogeneity is brought about: Each citizen is guaranteed the formally equal right of participation in forming political unity and the formally equal right of qualification for official positions. But even this “step forward in the consciousness of freedom,” as we might say with Hegel, is one that today threatens the formation of democratic unity.
For this consciousness of freedom is, on the one hand, consciousness of social inequality, and consciousness of political power, on the other. The latter cannot be permanently suppressed by force, but so far has by no means the resources to independently direct culture and form political unity. The social-psychological equalization of consciousness cannot be had without a fundamental change in the economy and a profound revolution in consciousness. Is the democratic political form capable of enduring until then, given the facts of the social class struggle? In and of itself, the class struggle, which grows out of an economic basis, must in no way break democracy apart. But once the proletariat believes that the democratic equality of its over-powerful opponent condemns the democratic form of class struggle to hopelessness, it resorts to dictatorship.
The insight of the ruling classes, or rather of the intellectuals in these classes, is decisive for whether that belief takes hold among the proletariat. It is pointless to find comfort for oneself or for others in the ethic of the democratic form. To be sure, political democracy wants to preserve the equal opportunity of each member of the state to influence the formation of political unity by summoning representatives. But social disparity can make summum jus [supreme right] into summa injuria [supreme wrong]. Without social homogeneity, the most radical formal equality becomes the most radical inequality, and formal democracy becomes the dictatorship of the ruling class.
In virtue of their superiority in the economy and in everything that concerns civilization, the rulers have adequate means in hand to change political democracy into its exact opposite by means of their direct and
Should the proletariat become aware of this discrepancy, then it realizes also that not only all the wheels of industry but also the wheels of state will stand still once its strong arm wills it. In that case, it will respect the democratic form of the class struggle only on two conditions. First, the democratic form ensures the proletariat any prospect for success and, second, the proletariat can discern an intellectual and ethical foundation as well as a historical necessity for the contemporary condition of domination. Of course, this also depends on the degree of insight of the proletariat. But it depends incomparably more on the extent of the intellectual and ethical abilities of the rulers and their constituency. The statesman who does not honestly try to make his political decisions transcend class prejudices, the judge who does not constantly attempt to balance the value judgments of all classes in order to avoid a justice tied to one of them—they and all other authorities of the state will represent to the proletarian the naked class-state that has no power to obligate him, but, as a mere instrument of repression, is worthy only of being fought. In such a situation not only the economic condition of both classes but also their intellectual and ethical consciousness will confront each other heterogeneously as entities without any means of mediation. The bourgeois will no longer appear to the proletarian as the same kind of being. The proletarian will confront the dictatorship of the bourgeois class-state with his ideal of the proletarian class dictatorship.
The danger in which the economic disparity between the classes places political democracy can for a time, but in no way permanently, be weakened by a homogeneity of common conventions, something that has been brought about to a certain degree in Switzerland and the United States. Equality of conventions can somewhat reduce the awareness of economic inequalities. Conversely, the more strongly economic differences are emphasized in the ordinary modes of greeting and clothing, the greater the number of social circles and groups who publicly underline their caste distinction by means of their presentability at court, their capacity to become officers, to be members of a corps, and so on; the more closely the conventional steps in upbringing and education are linked with title, rank, and name, the more strictly public accommodations are allocated on distinct lines—whether in the street car or in church—the greater will be the consciousness of the
Finally, that even anthropological homogeneity can be a presupposition of political democracy is demonstrated by the American Negro question. The right to take part in the full electoral process, which was ensured for the Negro after the Civil War, was again taken away. And the altogether honest solemnity that the citizen of the United States lends to universal human rights does not hinder him in the slightest from excluding the Negro from democracy with the same sense of self-evidence as it seemed to Plato that slaves self-evidently are excluded from democracy. To be sure, the Negro question is not just an anthropological one. But it would be wrong to regard it as exclusively economic. In contrast, the European worker question is and will remain, so long as the question is one of our conscious conduct, in the first place an economic one. And nothing is more characteristic of the social disparity that threatens our democracy, nor of the readiness of the ruling class to engage in class struggle, than the attempt to recast the economic disparity into an anthropological one, and to separate the proletariat as inferior in blood from the ones who possess—the aim of which is to justify on the basis of blood the demand that those who possess are to be those who rule. It seems in fact to be the case: Quos deos perdere vult, dementat prius [whom the gods will destroy, they first drive mad]. Suppose the proletariat were not only economically heterogeneous with the ruling class and distinguished from it not only by mutable relationships of property and education but also by immutable blood. Then what kind of solidarity should make the proletariat concede to the ruling class's democratic equality?!
For a hundred years bourgeois circles were used to conceiving the national cultural community as an adequate factor for integration into the state. I will not be suspected of underestimating the national cultural com-munity's power in forming a state.[21] But I must just as forcefully emphasize that it is impossible to have a cultural community without a certain degree of social homogeneity. The bourgeois hope that the proletariat's share in the national culture would prove sufficient to keep the propertyless classes within the process of forming democratic unity is in great part a naive selfdeception. There is some truth to what Othmar Spann says: “Only insofar as participation in the spiritual community reaches, can the true national distinction, and also the true … belonging to a nation, go; beyond that it is just a community of interests.”[22]
But if the political conscience is satisfied with Spann and refers to the given cultural incompetence of the “masses,”[23] it confuses mass with class, and desires to maintain that its own class is superior to the other on account of its spiritual nature. In principle, this kind of legitimation of the class-state has the same political effect as the above-mentioned theory of the racial distinction of classes. It must also end by dissolving ultimate ties and starting
Finally, one should say something about the following crucial issue. To-day's deficiency of economic, cultural, and conventional homogeneity cannot be remedied by using a religious we-consciousness to integrate with the class opponent as children of one and the same God. However, this religious homogeneity, as little as it can be influenced by our will, is of the greatest significance for political democracy. For there exist today large circles among the bourgeoisie who recommend the use of religion as the medium by which one can achieve the aim of forming political unity. Not only in France does there exist an atheistic Catholicism that would like to provide a religion for the people while maintaining for itself a theory of domination empty of belief. In Germany we know the type of scholar who now does penance for his prerevolutionary academic socialism by praising the good Lord as a social sedative. Besides the fact that the exploitation of religion as an instrument of politics is blasphemous, its recommendation in itself signifies as well a grandiose political stupidity: one notes and is annoyed.
In Dostoevski's The Devils, Schatoff makes this pregnant remark: “Who has no people, also has no god.” Even though one can rationally construct out of the “myth of the nation” a religious “myth,” one cannot thereby create either a real people or a real God.
THE ESSENCE AND STRUCTURE OF THE STATE
HERMANN HELLER
Originally appeared as Wesen und Aufbau des Staates, part 3 of the Staatslehre (Leiden: A. W. Sifthoff 's Uigeversmaatschappij, 1934). Reprinted in Hermann Heller, Gesammelte Schriften, II: Staatslehre als Politische Wissenschaft, 2nd ed., edited by Christoph Müller (Tübingen: Mohr, 1992), 327, 331–39, 354–56, 358–59, 359–61, 390–95. Translated by David Dyzenhaus.
THE JUSTIFICATION OF THE STATE: STATE FUNCTION AND LEGAL FUNCTION
No justification of the state is possible without separating just from unjust. This separation can be accomplished only on the basis of a standard of law
The theory of the state therefore finds itself confronted with the fact that neither the harmonizing of law and power, nor legality, nor a democratic, nationalist, or Bolshevik legitimating ideology, is capable of a generally valid sanctioning of the state as such. But every political exercise of power now asserts of itself that it stands in the service of justice. It is not only the state based on the rule of law that makes this claim, as a propagandist of dictatorship maintains. There is no form of state or government in which an order in itself already exhibits a positive “legal value”; and the formulation, “an order is the best thing in the world,”[26] while it might bring joy to the aesthetes of power in their cultural languor, is a proposition that is false of any form of political power. For it is known that power is established only on the basis of obedience to orders, but obedience essentially lives always and in all forms of rule on the believed justification of the order.
Does the theory of the state resign itself to a relativistic agnosticism in view of this state of affairs? Is nothing left for the theory but the belief that every power stands in service of justice, or is the theory not able to demonstrate principles for a generally valid justification of the state?
It is not difficult to establish a positive answer to this question insofar as one is concerned with the justification of the state as an institution. The state is justified insofar as it exhibits, at a particular evolutionary level, the organization necessary to secure the law. By law we understand in the first place the ethical principles that are foundational for positive law. In all of these
The state institution is thus justified in that a certain level of division of labor and social intercourse requires the determinacy of law in meaning and execution. As only a certain intensity of traffic makes necessary first a special traffic ordinance and then even specialized traffic police, so growing civilization generally makes necessary a growing self-differentiating state organization for the promulgation, application, and implementation of the law.
The state institution is thus sanctioned as an organization that secures the law and only as such. This thesis should not be misunderstood in a liberal or technical manner. Neither does it aim to say that the state has to confine its activity to legislation and the organization of the judiciary, nor does it maintain that securing the law consists merely in policelike activity. That the state can be sanctioned only by its characteristic as an organization for securing the law is meant much more to express that it can be justified only in that it serves the application and implementation of ethical principles of law. The state's securing the law also has nothing to do with the positivist distinction between a purpose of the law and a cultural purpose. Legal principles are most certainly the ones that may require the state's economic, educational, and other cultural activity. It is obvious that our concept of legal certainty includes much more than the usual. The organization of the state is made
However, the ethical principles of law sanction directly only the norms regulating action and not the norms allocating authority. It is the socially valid ideologies of legitimation in a legal community that decide the authority to be called upon to promulgate, apply, and execute positive laws. Such an authority must be both empowered and entitled to secure the law. It must have power to pronounce on the law, to apply it, and also to execute it if possible, and it has this power only insofar as at least the decisive groups believe that it is prepared to secure the just and not the unjust. However, this social legitimation of the law-securing authority has to be distinguished clearly from the ideal justification of the state by ethical principles of law. It is only by dint of a judgment as to the justness of the secured law that one can decide whether the socially legitimate authority is not serving normal legal certainty alone and maintaining an unjust order for order's sake. Legal certainty and lawfulness can conflict with each other, and this tension, which necessarily obtains between both, reveals to us the deep problem of justifying the concrete state.
The theory of the state has abandoned to legal philosophy the question whether the ethical principles of law can simply be reduced to an unmediatedly assured sense of justice or whether they are deducible with an objective epistemological certainty from a rationally formulable supreme law. It has similarly abandoned the difficult questions whether and in what sense there are a priori principles of law, which principles are universal and which bound to particular cultures. However, it must be taken as settled for a realist theory of the state that there are such ethical principles of law that make up the justifying basis of the state and its positive law. Among those ideologies of social legitimation, of which several always exist, one can clearly distinguish by their generality those that make demands on all members of the state. Their claim to validity is, when not absolutely universal, still one that always extends beyond the particular state. …
The state can provide the ethical principles of law with such a determination as well as the corresponding determinacy of execution only within its area of efficacy. That the territory of a state and the sphere of a legal tradition coincide is much less plausible than a coincidence between the territory of state and an economic sphere. For the principles of law form not only the normative foundation of the law of the state, but also of the law between states. …
The social, legal situation in the modern state reaches the highest degree possible of legal certainty in regard to the determinacy of both meaning and execution, because it has at its disposal a hierarchical organization with a
All the organizational institutions of the state, however carefully they may be conceived, are capable only of guaranteeing legal form and legal certainty, but never compliance with law or legality, and never the ethical legitimacy of state acts. For all eternity it is the case that only the individual legal conscience will be in a position to secure justice. Thus there is established in the modern state a necessary and unsolvable conflict between compliance with the law and legal certainty. This conflict is necessary because, within a vital citizenry, complete agreement over the content and application of valid fundamental legal principles can never rule. It is unsolvable because both the state and the individual have life only in the tension in which positive law and the legal conscience find themselves.
Reason of state has the “right” to maintain that—but only in the modern state!—the legalization of a right of resistance against a state ordinance judged to be ethically repugnant means nothing other than a selfcontradictory legalization of anarchy. The destruction of all legal certainty must destroy the individual as well as the state.
But reason of law has even more “right” to assume that if the legal conscience capitulates to state power without resistance, it will lead to the destruction of the human being as an ethical personality and thereby finally also to the disintegration of his state-forming power.[29]
It is a question of the greatest relevance what conclusions should be drawn in case of a collision between duties arising from ethical principles of law and from positive laws. It was already Kant who absolutized the validity of positive law and denied any right of resistance, which, by the way, contradicted his own rationalist presuppositions about the law of reason.[30] Since that time, the positivism of the continental theory of the state has not in any way recognized a right of resistance and ultimately made a complete sacrifice of legality to legal certainty. One believes that one opens the door wide to anarchy just by conceding an ethical right of resistance. This axiom became all
In truth, however, clear-sighted reason of state does not at all require a complete capitulation of the legal conscience and the recognition of an ethical right of resistance in no way has anarchy as a consequence. Certainly, it must be established once and for all that the exclusive concern here is the problem of ethical justification and not just any question of legality. One cannot dispute that the recognition of a legal right of resistance is impossible in contemporary states, nor likewise that resistance against acts of state should in no way be allowed when these are, though defective in a legal sense, ethically indifferent. To be sure, it is a necessary requirement of legal certainty in many cases that such acts should also be attributed to the state as do not in form or content correspond to the positive legal order's established conditions for attribution. Generally one is concerned in these cases with infringements of provisions regulating forms of procedure and norms allocating jurisdiction that are almost without exception ethically indifferent. Only the Pure Theory of Law, which concedes without distinction the quality of absolute norms to all positive law, is capable of introducing a seriousness to the positivist theory of legal power, which gives only legality and never legal certainty its due.[31] That state acts enjoy the presumption of legality, by which a mere lack of positive legal validity is cured, is altogether justified by the requirement of legal certainty. It would, however, lead to the dissolution of the legal order if one desired to leave every single case to the man in the street [English in the original], and make his obedience dependent on whether, in his estimation, the organ of state is acting in agreement with all norms allocating jurisdiction and regulating legal formalities that are local, relevant, and current. In the state based on the rule of law, a right of resistance against legally defective state acts is for the most part superfluous, because the subordinates and subjects who are thereby burdened are generally capable of protecting themselves against the state by legal means. It also happens, not rarely, that the state, in order to protect a higher legal good, allows acts contrary to positive law to remain as valid legal acts.
But the problem of a right of resistance is different when it concerns a state act repugnant to ethics. Whether the relevant norm is legally unobjectionable or not then plays no decisive role. To take the crudest example: Whoever conscientiously refuses wartime service is threatened with the most serious punishment. Reason of state and the positive law must, for the sake of legal certainty, take such a prescription as indispensable. But a legal conscience is not worthy of the name when in this case first it fails to recognize a tragic conflict of duties, but then deprives the conscientious objector of his ethical right of resistance. To be sure, there are many who even call such an interpretation of state and law heroic. But the exact opposite is the case! That
It is good and right that the power of the state be challenged by the ethical right of resistance. And it is the opposite of an ethical justification of the state when one metaphysizes the state once and forever into the “actuality of the ethical idea” and thereby irrevocably deprives the only empirical bearer of the legal conscience of the right of resistance against unethical state acts. In this instance, the specter of anarchy is unjustly conjured up. In view of the state's enormously heightened techniques of law and power, the unlegalized resistance of the legal conscience is ultimately possible only at the risk of one's life. Given our character as humans, such a risk is seldom taken. But when it happens, it is all the more a valuable model because the contemporary state's techniques of dealing with the masses and using its power carry the awful danger of a complete deadening of the legal conscience. Those who happen to rule must always have an interest in justifying the state they rule as the objective expression of ethical reason. “The conception of societal institutions as objective reason annuls the function of reason in human society.”[32] The justification of the state can never consist in harmonizing law with power at any price. For each state power owes its establishment and structure to human—all-too-human—will. One always finds the highest ethical forces, a frightful mass of stupidity and evil, of baseness and arbitrariness, at work.
…
THE STATE POWER AS POLITICAL UNITY THROUGH DECISION
The most significant and most misunderstood relationship between state power and law can generally be characterized by the fact that every political power essentially aspires to the legal form posited and secured by the organs of the state. It must have this tendency, because in the modern state, law as a rule represents the technically as well as intellectually and ethically necessary manifestation of every lasting political power that proves itself. It is the technically (not always politically) most perfect form of political domination. For it makes possible, on average and in the long run, the most precise and practical orientation and ordering of political activity, that is, the most
On these technical grounds alone, state power is always legal, that is, legally organized, political power. A complex of social relationships, systematically organized into a unity of power, becomes a complex of legal relationships, systematically ordered into a unity of order, derived from the positive constitution. However, on account of its social function, each state power must strive not only for legality in the legal technical sense, but also, for the sake of its self-preservation, for an ethical justification of its positive legal or conventional norms, i.e., for legitimacy. A state power is all the more stable the greater the voluntary recognition that the pillars of its power show for its ethical principles of law and the positive laws that it legitimates. A state power has authority only when the justification of its power enjoys recognition. Its authority is based in legality only insofar as the legality is founded by legitimacy. The legitimation of the state power either can be traced back to tradition, so that its standing is consecrated by its origins, or rests on the belief in the particular gift or genius, and thus on the highly personal authority of the power-holder, or it is based in the recognition of the power-holder as the representative of particular religious, ethical-political, or other values. Only that state power is secure which has authority in this sense with the politically relevant pillars of power.
All the ideologists of force fail to recognize this power formation by law, while conversely all the pacifist ideologists do not want to recognize law formation by power. There cannot be an absolutely homogeneous legal community in a class-divided society, nor even in a society based on economic solidarity; for this would mean the abolition of all and not only the economic
STATE POWER AND STATE FORMS
The manner in which state power is divided determines the state form. This is certainly valid for the two basic forms of state. Democracy is a bottom-to-top power structure; autocracy organizes the state from top to bottom. In democracy, the principle of people's sovereignty holds: all power of the state comes from the people; in autocracy, the principle of the sovereignty of the ruler holds: the head of state unites in himself all state power. So far as this localization of sovereignty in the people or the ruler is concerned, one can and must distinguish between law and reality—but not where sovereignty of the state's unity through action is concerned, which comprehends both people and ruler. For these principles of localization are only in part statements of what is; for the rest, they are judgments of what ought to be, with which the actual division of state power does not always agree. In accordance with its function as a rule of orientation and calculation, the law of democracy attributes the formation of state power to the “people.” This is so even when the people that votes makes up only a small part of the actual population and individuals outweigh the greater part of the electoral power, for example, because of their superior economic power. But even in a democracy where there is equality of social opportunities, the people can rule only through a ruling organization. But each organization needs an authority, and all exercise of power is subordinate to the law of the small number; those who actualize the organizationally unified outputs of power must always have a certain degree of freedom of decision and thus of democratically unconstrained power. This is as true for the state organization as it is for the power structure of the political parties, which in democracy organize the manifestations of will. In the parties, the larger and more developed the organization, and the narrower the voter's political knowledge and interest, the more easily a very narrow circle of leaders in conjunction with the party bureaucracy concentrates power in its hands. The state administration, which constantly expands and becomes more complex, especially requires a professionally trained and experienced civil service in all its branches. Its expert knowledge and routine absorb a substantial part of the state power that is legally localized in the people, particularly when the bureaucracy is confronted by changing parliamentary majorities and a changing political leadership.
Despite all these limitations and falsifications, the legal localization of sovereignty in the people does not amount at all to a mere fiction, but to a political reality. Indeed, its political significance is grasped only when one correctly understands the people's sovereignty as a polemical principle for the distribution of political power antithetical to the principle of sovereignty of a ruler. That there is no pure realization of this principle in political life disappoints only the doctrinaire. Conversely, only ignorance or demagogy can contest that people's sovereignty expresses a structural principle of the actual distribution of political power. For it is always a fact that, in contrast to autocracy, a greater or smaller circle of the democratic citizenry has effective political power, which becomes practical above all in the appointment, recall, and control of the political leader. It is a political reality of the greatest practical significance that the democratic organization of the state based on the rule of law, with its division of powers and guarantee of basic rights, limits the leadership's political power through constitutional precepts. It secures for all members of the citizenry without exception a certain measure of “freedoms” (that is, of social and political power) that differ according to the particular circumstance.
In contrast, the distribution of state power in autocracy is in principle and in reality altogether different. Here all state power is supposed to come from the autocrat; he alone is supposed to take all politically relevant decisions. It is obvious that this legal principle of attribution must depart from political reality not less but rather more than the principle of the people's sovereignty. For only an omniscient and omnipotent autocrat could direct the entangled mammoth organization of the contemporary state with its entangled international dependencies with full freedom of decision. In practice, even the absolute monarch, and even more the modern dictator, must share his power widely, above all with his bureaucracy and other organs of domination, with national and international church, economic, and other power groups, and first of all with the privileged class, hence, in a dictatorship, with the leadership circle of the dictating party, which organizes the pillar of power that supports him. Yet, one may not deny that the localization principle of ruler sovereignty exhibits a concentration of state power in the hands of the autocrat that is completely unknown to democracy and the state based on the rule of law. That all the legal boundaries of dictatorial state power are removed does not, of course, mean that the dictator possesses total power, still less that all power is actually united in his person. But it does clearly mean that his power finds its boundaries only in the actual constellation of power in the society. However, the apparatus of dictatorship can be perfected with the help of the technique, developed enormously in the last century, of physical and psychological domination of the mass through tank, airplane and gas, press, cinema, radio, and school, as well above all through the compulsion of hunger. Hence the leader of the dictatorial apparatus is
…
THE WRITTEN CONSTITUTION
To begin with, we must distinguish four concepts of the constitution: two sociological and two legal. The constitutional concept that is richest in substance considers the characteristic power structure, the concrete form of existence and activity of the state. The extent of this concept renders it scientifically as good as useless; for it covers the “total situation of political unity and order,”[33] the “totality of life,” and the “reality of the state's life”[34] and thus includes all the natural and cultural conditions of the state unit without any worthwhile differentiation.
Much more fruitful, simply in that it is narrower, is the second realist constitutional concept. It comes about in that, within the totality of the state, a basic structure of the state is valued as fundamental from a particular historical-political standpoint and is singled out as the relatively permanent structure of the unity of the state.
Two idealist and even legal concepts of the constitution correspond to the two sociological concepts. The comprehensive legal concept would have the entire legal existence of the state as its content. At the least, however, it includes all the legal norms contained in the constitutional document together with all other laws of the order of the state that comply with the constitution. Here one has in mind not the actual total situation, but only the situation of political unity and order, which is valid in legal terms, to be sure, without regard to which of the countless precepts are valid because they are “foundational” and which because they are derived. One can speak in this case of a substantive constitution in a wider sense.
More useful is the concept of the substantive constitution in a narrower sense. The basic order that it stresses within the total legal order of the state is a substantive part that is judged to be foundational, but not just as a hypothetical, logical “basic norm.”[35] The idea of a substantive constitution in the narrow sense, written or unwritten, posed no difficulty for the natural law of the Enlightenment, because it started in the belief that its postulates, while in truth historically and politically determined, possessed an absolute, suprapositive legal bindingness, and permitted a logical-systematic deduction of all positive precepts. Even Kant[36] wants to understand the legal statute as an abstract, general premise by a deliberate analogy with the logical deductive scheme. Ultimately, only from this belief can one understand the requirement that the constitutional document should include “all the country's institutions and principles of government.”[37]
This requirement must be described as incapable of fulfillment because
The concept of the formal constitution, the fifth constitutional concept in our sequence, considers the totality of the laws fixed in writing in the constitutional document. The legislator alone decides which laws should count as important enough to be accepted into the constitutional document and which, if need be, should participate in its enhanced guarantee of durability. The tendency to bring the written constitution into the greatest possible agreement with the substantive constitution in the narrow sense is clearly visible in the written constitutions, all of which display a typical content, namely, the fundamental structure of organs and functions. The concept of the formal constitution is theoretically necessary because there can never be a complete correspondence between the substantive and the formal constitution. Although constitutional documents contain a typical content, there are no theoretical principles for deciding which provisions must be reserved to the constitution. Tradition, political expediency, the constellation of power, and legal consciousness decide on what the constitutional document rules just as they decide on which provisions must generally be reserved to statute.[38]
This settles Carl Schmitt's attacks on the concept of the formal constitution, the results of which amount in general to a relativization of the constitution based on the rule of law. Certainly, interpretative constitutional scholarship is not merely entitled, but even required, to construct from within the totality of law a concept of the substantive constitution in the narrow sense alongside the formal concept. However, the content of this positive concept of the constitution, as Schmitt has misleadingly termed it, is, just like the content of all formal constitutions, never independent from “demands along party lines.”[39] Thus, for example, one could easily dispute whether it is the case, as Schmitt maintains, that the federal structure actually belongs to the fundamental laws of the “positive” German Constitution of 1919.[40] On the other hand, one cannot grasp on what basis Schmitt wants to prevent the German constitutional legislator from, for example, regarding as just as fundamental as the federal structure the principle of separation of church and state, as well as the corresponding secular supervision of schools.[41] Finally, it is not just these but all the provisions of a substantive as well as of a formal constitution that have to be explained “in terms of the political and historical situation”[42] of their creation.
The claim is utterly false that the “positive” constitution—that is, the substantive constitution in the narrow sense—is not a norm and not a statute but a “solitary decision,”[43] or, as Schmitt says elsewhere, a plurality of “concrete political decisions,” and that the constitutional statutes “were valid” only on the basis of such a decision or decisions. The constitution is not at all comprehensible as “valid” if it is understood as a nonnormative, merely factually existing decision or plurality of such decisions.
At present, two equally one-sided understandings irreconcilably confront each other on the question of the basis of the validity of a state constitution. According to “pure” normativism, represented by Kelsen and his school, the basis is supposed to be the basic norm representing the “logical origin” of the constitution, which as a legal hypothesis puts in place “the constitutiongiving authority”; the constitution therefore is supposed to get its “legally”-and not as one might suppose its logically-relevant validity from this norm of origin, and its content “from the empirical act of will of the constituting authority.” Schmitt confronts this powerless, merely logical norm, which is not legally valid, with the norm-less power that is not valid at all. For him, the “positive” constitution is not at all normative, but is “valid by force of the existing political will of the one who gives it.”[44]
Every theory beginning with the alternatives, law or power, norm or will, objectivity or subjectivity, fails to recognize the dialectical construction of the reality of the state and goes wrong in its very starting point. The powerforming quality of law forbids us to understand the constitution as the “decision” of a norm-less power. A factual power situation becomes a relatively durable constellation of power and thereby a constitution in any wider or narrower sense only if the following obtains: The “decisions” of the powerholder are complied with by at least one, (i.e., one decisive) section of those subject to the power; and this compliance is motivated not just by interest, habituation, and the like, but because the section sees the norms as valid, exemplary, or binding. On the other hand, however, the law-forming quality of power must reject the interpretation which holds that the (content-less) constitution gets its legal validity by means of a powerless norm whose validity is merely logical, but gets its content from the act of a will of the constituting authority (which is first put in place by the basic norm). Efficacy and validity, the “is” and “ought” of the constitution, must indeed be logically distinguished, but they nevertheless apply to the same constitutional reality, in which the statement of one always at the same time asserts the other.
Not every political constitution, but clearly all constitution-giving presupposes a constitution-giving subject, which can be only a unity of will capable of action and decision. In the world of the Middle Ages, in which the construction of political power had over generations grown by tradition, the acceptance of a constitution-giving subject would have been redundant and purely fictitious. However, once the basic order of the modern state is
However, one can consider the prince as well as the people as the subject of the constitution-giving power only if they as well have acquired this quality normatively. The prince possesses constitution-giving power, not because he has it “existentially,” but only on the basis of the normative order of hereditary succession and, hence, as a legal power. The people as a “formless forming” cannot have a pouvoir constituant because it “[must] be existent and presupposed as a political unity if it is to be the subject of a constitution-giving power.”[47] One might deny that a people grows both substantively and technically from an amorphous mass into a unity of wills capable of decision only by compliance with a normative order. One might answer the question of its presupposed unity by saying that “in a certain sense”[48] the unitary people constitutes itself and “in its conscious identity with itself ”[49] is even a political unity capable of action. This may be political ideology, but certainly not a theory of the state. One may designate as the constitution-giving power the political will whose “power and authority” are able to determine the existence of the political unit as a whole. But without a normative act, a mass of human beings has neither a will capable of decision, nor power capable of action, and at the very least it has no authority whatsoever. The normative element cannot be excluded in any way from the concept of authority by the description of authority as a phenomenon resting essentially on continuity, tradition, and duration;[50] for there are indeed revolutionary authorities whose “social validity” rests in particular on the break in continuity.
The question of the legitimacy of a constitution cannot, of course, be answered by referring to its coming into existence in accordance with some previously valid positive provisions. But to be a constitution, i.e., more than a highly unstable factual situation of superior power, to be valid as lawful order, a constitution needs justification from ethical principles of law. Schmitt contradicts his own assumptions when he declares that one has to award legitimacy to every existing constitution, but that a constitution is only legitimate