INTRODUCTION
Peter C. Caldwell
Of the leading representatives of the statutory positivist approach to public law in the Weimar Republic, Richard Thoma produced the most coherent political theory of the Weimar constitutional system. He developed this theory in numerous essays and expositions of legal problems, in journals, in Festschriften, and in his many contributions to the Handbook of the German Law of the State [Handbuch des deutschen Staatsrechts], edited by him and Gerhard Anschϋtz in 1930 and 1932. Thoma provided a political and legal account of parliamentary democracy expounded from a leftliberal political and a neo-Kantian philosophical position. Both positions owed much to the Heidelberg milieu and the circle of scholars around Max and Marianne Weber in which Thoma was trained. The product was a theory of the way the Weimar Republic was supposed to function, had the left-liberal, socialdemocratic, and Christian-democratic political assumptions at its basis been realized in German political culture.
Thoma was born in 1874, the son of a factory owner in Todtnau, a town in the Black Forest region of the southwestern German state of Baden.[1] In the years after 1848, southwestern Germany and Baden in particular had become the training-ground for the theory and practice of left-liberal democracy in Germany. It was in Baden, for example, that the Social Democratic faction first entered into voting agreements with liberals during the Empire. A major theme of Thoma's mature works was the development of social reforms in tandem with Social Democracy.
Thoma wrote his dissertation in 1900 on issues of property law in the new
Thoma's work spanned half a century and four state forms in Germany. His works prior to 1918 already show some of the basic issues that would preoccupy him until his final days. These issues are apparent in his 1910 essay “The Idea of the State Based on the Rule of Law and Administrative Law Scholarship” [Rechtsstaatsidee und Verwaltungsrechtswissenschaft].[3] The dry title of the essay conceals a burning political topic: how to combine the rule of law with administrative activity in the early years of a modern welfare state. Thoma argued that conceptions of the state based on the rule of law from the mid-nineteenth century had posited a substantive idea of what Recht was, based on individualistic notions of personal and property rights. But these substantive notions had to be replaced with a more formal notion of Recht at the end of the nineteenth century, when “the creative forces of national and the socialist ideas” overcame “individualist” conceptions.[4] Like other left-liberals and like later reformist socialists, Thoma linked the words “national” and “socialist” to develop the idea of an interventionist (“social”) republic based on legal principles—a republic that would provide for the “emancipation of the fourth estate” and initiate social reform legislation.[5] This combination of ideas prefigured the underlying logic of the Weimar Republic, which combined republicanism and an openness to substantive reforms in its constitutional structure.
At the same time, Thoma insisted that openness to social law would not undermine the formal structure of law. Indeed, he called for a more rigidly formalist approach to administrative law to preserve the rule of law. First, all administrative acts were necessarily subordinate to a statute approved by the legislature (in the case of the Empire, the monarch and the Reichstag). The statute was “omnipotent,” the highest expression of the state's authority; it set the framework within which the administration could operate.[6] Second, basic rights would create an additional set of limits to the actions of the ad-ministration.[7] Finally, Thoma stressed the necessary presence of a strong parliamentary system equipped with the institution of ministerial responsibility. The responsibility of ministers to the assembly was not, however, fully developed in the Empire. In spite of being a member of the right-liberal National Liberals, Thoma cast doubt on the Rechtsstaatlichkeit of the Bismarck Constitution of 1871 while still basically affirming the existing Reich.[8]
At first somewhat hesitant in his support of the new Weimar Republic in 1919, Thoma soon became one of the republic's leading supporters. He gave speeches to the left-liberal German Democratic Party, worked with an organization of university educators who were “faithful to the constitution,” and published numerous works in defense of the Weimar democracy.[9] As one of his colleagues wrote in an obituary: “He did not, like so many others of his generation, merely accept the first democratic constitution of the Reich; he loved it.”[10]
By “democracy” Thoma meant the kind of liberal-democratic system adopted by the Weimar Constitution. Like his fellow left-liberals Anschütz and Hugo Preuss, Thoma repeatedly rejected rule by “the plebeian.” As he wrote in the essay below, the election of the National Assembly on 19 January 1919 was a decision for “responsible government” based on competing parties whose representatives were elected by rules of general suffrage—not rule by an autocratic minority. In other words, parliamentary democracy was still based on an aristocratic principle of indirect representation and not direct (plebiscitary) democracy, while at the same time the “aristocratic” electors were responsible to periodic popular votes.
The democracy Thoma had in mind, then, was anything but the “series of identifications” of people and state invoked by Carl Schmitt.[11] To Schmitt, Thoma would respond: To proclaim a magically unified, republican whole was to ignore the reality of fragmented interests of the German people. Democracy had to involve representation of concrete interests. Therefore, Thoma argued, it required different, contending political parties. From here it was only a short step to assuming (with Hans Kelsen) that only proportional voting rights could adequately represent the many interests of the German people, without allowing a majority to trample the interests of a minority.[12] At the same time, Thoma had great faith that the combination of proportional representation with the parliamentary system would create a truly democratic decision-making process. For this reason, he argued that the right of the Reichstag to amend the Constitution through a two-thirds vote was in theory unlimited. This idea of free, democratic self-determination, he argued, was “daring, perhaps, but sublime in its logical consistency.”[13] The key to his argument, however, lies in the distinction between theory and practice: theoretically, i.e., from the point of view of existing legal forms and procedures, Article 76 was unlimited. But in actual practice, Thoma pointed out, a whole range of limits to “parliamentary absolutism” existed—from minority parties' right of inquiry to public opinion to the plebiscitarian right of popular initiative.
Thoma made a similar distinction between theory and practice in his essay on the limits of judicial interpretation of constitutional law in a democracy. He laid out this argument in a brilliant speech to the first meeting
Thoma rejected the judiciary's right to review statutes on political grounds: There were sufficient other defenses of the Constitution such that granting judges this right—and deviating from existing doctrine—seemed unnecessary. During these same years the higher levels of the judiciary did begin to develop systems of judicial review, often making questionable judgments in the process. Thoma viewed these new practices as autonomous claims, almost usurpation, of power by the courts: a “gerontocracy of the judiciary.”[16]
The strength of the positivist tradition lay in its ability to outline the way a given system of law should function. Thoma and Anschütz's Handbuch des deutschen Staatsrechts was, in this respect, one of the best practical works of German political science before 1945. The dark side of the positivist tradition lay, however, in its utter dependence on the workability of the political system. By 1932, when the second volume of the Handbuch was published, the Weimar constitutional system had become paralyzed. During the final months of its existence, the positivist tradition was unable to offer any politically acceptable way out of the crisis.[17]
Thoma continued teaching under National Socialism, but restricted himself to the less immediately political area of administrative law. He published only one major work during the Nazi period, an essay from 1937 that dealt with the financial policies of the new Volksgemeinwirtschaft, or the “common economy of the Volk.”[18] The book contains praise for the “insight” and “saving deeds” of “our Führer, Adolf Hitler.” In this respect, Thoma offered no critical perspectives.[19] The argument can be made, however, that his work indicated the limits to expansive financial policies. In this way it seems to have supported Hjalmar Schacht's calls for limiting deficit spending on rearmament. It is unclear whether Thoma intended this work
After the Nazis were defeated in 1945, Thoma regained a prominent position in public life. He published an important defense of parliamentary democracy in 1948—no longer filled with the enthusiasm of the 1920s, but still supporting the institutions of liberal democracy.[20] He served as an adviser to the Parliamentary Council during its discussions on basic rights in the Basic Law of 1949. In his last essays, he developed an important, critical commentary on the rights and the place of the Federal Constitutional Court [Bundesverfassungsgericht], completed as blindness was slowly setting in.[21] In this and other works, he repeated virtually verbatim the arguments he had made against an extensive application of the equality clause in the Weimar Republic, which had been part of his general critique of judicial review.[22] In 1949, Thoma served as honorary chair of the newly reorganized Association of German Teachers of the Law of the State in its first meeting since 1932. He died on 26 June 1957, in Bonn.