THE UNITY OF THE SYSTEM OF INTEGRATION—
TYPES OF INTEGRATION IN RELATION TO ONE ANOTHER—
FOREIGN AND DOMESTIC POLICY
… The relationship among various types of integration, especially the two poles of every system of integration, the substantive on the one hand and the functional on the other, is an important problem of theory and politics. However, it is neither explicitly defined in this way nor even understood as such. For it is not fundamentally interpreted and treated as a systematic problem but rather observed as an historical one. Treatment as an historical problem involves, in particular, two possible historical sequences: the replacement of substantive by functional integration, on the one hand, and of functional by substantive, on the other.
The first possibility accords with the course of the modern history of ideas in general. The disintegration of the medieval value-system meant at the same time the disintegration of the developed, natural, unproblematic community of values—a “community” in the sense used by [Ferdinand] Tönnies; that is, the end of the era of primarily substantive integration. The spiritually atomized, desubstantialized, functionalized modern person is not a person lacking in values and substance but a person without community-forming values, especially traditional values, which are at the same time necessary for a stable cultural and social order. Including the modern person in community formation is more dependent than it used to be on functional integrating techniques. As the person of the stable order was integrated through inclusion in the established hierarchy of the state and the estates, the citizen of the nineteenth century was integrated through the formal play of the parliamentary state and the citizen of the democratic era through the plebiscitary forms of life in the mass state. To this extent, despite the insufficiencies of their psychological skepticism, the inroads of mass psychology into modern theories of the state contain some truth. To this extent, too, it is not incorrect to contrast the process-prone modern political groups, as in communism, with the more structure-oriented older parties.[116]
Such changes can sometimes also be observed in miniature, quite independently of these world-historical developments. Karl Bilfinger has impressively shown that it is typical for single German states, in contrast to nation-states, to be held together not so much by substantive elements—economics, culture, ethnicity, and related substantive competencies—but above all by the “principle of state authority”; that is, by the interplay of the forms and functions through which state authority is exercised; that is, functional integration by dint of the public's share in experiencing this functional life, completely separate from its substantive content.[117]
More important for state theory than the number, type, and truth of such singular cases is the fundamental fact that the opposite sequence of events also occurs, also in singular cases, and that it occurs here especially as a practical political program, thus giving it major practical significance.
On the one hand, the disintegration of the more traditional community into modern, rationalized “society” in the sense used by Tönnies means the transformation of the irrational content of community into a content of rationalized, conscious, formulated meanings and values, developed in the theories of social contract, human rights, and the modern state, as well as party programs. Thus the attempt has been made to see the essence of the modern community, as opposed to the older one, in the fact that in the original community, the leader was the determinative and essential integrating factor, while in the modern community, the leader is replaced by ideas and abstractions.[118]
A corresponding trend can be observed in various concrete individual phenomena. Here I will mention only the most significant description, provided by Karl Loewenstein, of the climax from a person-oriented to an issueoriented plebiscitary constitutional type in England.[119]
It is here, as far as I can tell, that the key to the riddles of the socialist theory of the state can be found. This becomes clearer the more Engels's formulation of the “transition from political rule over people to an administration of things and direction of the processes of production—that is, the elimination of the state”[120] becomes the leitmotiv of socialist discussions of the state. Creation of solidarity, which is the prerequisite for eliminating “domination,” is based on the creation of the true economic and social order. If this exists, then unity of will—in particular, the unity of political will—is no longer created through domination, through overpowering, through any act of will at all, but instead through insight into the truth of this order.[121] That is why Marxism puts so much emphasis on education; because the people in this new order must necessarily be different and better than those who came before.[122] In any case, however, once implemented, socialism requires no further systems of integration; it already has them, in the substantive new order it has implemented. That is why for Max Adler, for example, the problem of dissenting minorities no longer exists at all in the socialist order.[123]
Here “bourgeois” state theory begins to have its doubts—in the elimination of our familiar reality of political life, a world of lively and therefore battling wills, wills that build the state through this battle and make history pos-sible—quite apart from all other objections to Marxism.
Political integration exclusively through a single integrating content can be the subject only of a theory of the nonstate, as Marxism aims to be, or of a utopia. It is a lost or a future paradise that is so characterized—hence the tendency of all chiliastic utopias toward romanticism. This is not contradicted by the fact that a historical case is realized in the form of the Roman Church. On the one hand, here too the system of substantive integration did not remain pure; on the other hand, it is telling that its own legal system, and the political systems modeled on it, are all hierarchies of authorities deriving their legitimacy from the bearer of the central substantive value. Carl Schmitt's is the most important modern attempt to conceive the state's reality systematically along the lines of this scheme. It is instructive on the right and possibility of any attempt of this kind to develop a theory of the state. It becomes not a theory of the state but one of law, and given its prerequisites it can become nothing else. Thus it is telling that Max Adler finds something of an ally in this theory of value-legitimized legal relations.[124]
All the more attention is warranted by the transformation that, as a general retreat of humane human values before civilizing material values within our cultural universe, brings with it a corresponding shift in the relative significance of states' integrating factors, largely explaining, in particular, the decline of parliamentarism.[125]
We will refrain from further examples of actual or imagined stages of integrating types, which may easily be sifted out of many theories involving evolutionary stages.[126] Despite the relative truth of such observations, we must remain aware that the state is a unified association thanks to all its integrating factors—that is, thanks to its substantive content and volitional life, just as the personal life of the individual experiences its unifying fulfillment in the interplay of its functions and in the substance of its memory, responsibility, and tendency toward the future. Here too, the inherent spiritual logic of values proves itself in the ongoing harmonization of these constantly selftransforming single factors.
One of the most powerful aspects of fascism, however one may judge it otherwise, lies in the fact that it recognized this necessity for all-around integration with great clarity, that it handles the techniques of functional integration masterfully, despite its rejection of liberalism and parliamentarism, and that it consciously replaces the socialist substantive integration that it rejects with another (the myth of the nation, the corporate state, etc.).
Finally, we must be reminded again that, as a rule, none of the integrating types appears in pure form; only one type or another predominates in each individual case. At times, they appear as an inseparable unity; thus the
The types of integration and their systematic interplay in creating the unity of the life of the state have thus far been treated essentially from the point of view of domestic politics and illustrated through its most important manifestations. But this view would leave a painful gap if it considered the state, politics, and integration only from the domestic perspective, neglecting the question of the relationship between the developed system of the life of the state and the sphere of external politics, which seem at first glance to be so different in substance and logic. In one sphere, we apparently have the state as a power, that is, a compact unity; in the other, it is broken down into single factors and functions and their ever-changing interplay. In the one sphere, there is the heteronomy of the power game of foreign policy; in the other, the autonomy of the state's creation of its own character. In the one sphere, therefore, there is a necessity that limits the freedom in the other, in the spirit of the oft-mentioned “primacy of foreign policy.”
In another context, I attempted to demonstrate that political life is the unity of domestic and foreign politics and that this unity is based in the fact that both tendencies are the state's creation of its own individuality—that is, integration.[129] I have little to add to this discussion.
The conventional view of the essential contradiction between domestic and foreign politics, and of the problematic relationship between these two mutually alien worlds and fields of political force—that it must be a relationship in which the one influences the other, that is, a relationship of the primacy of the one over the other—is usually based on certain historical and practical, but also deeper theoretical, presuppositions.
Theoretically, the alternative of the primacy of domestic or foreign politics is the alternative of, on the one hand, the substantialization (and isolation) of the state's power, and, on the other hand, of the individual as the ultimate bearer of political goals and thus the ultimate engine of political life. The ultimate cause of political events is either the states and their power relationships, which determines domestic politics and the form of the state through foreign politics (the well-known thesis of German historians, repeated ad nauseam and especially employed to justify the German monarchy); or the individuals and the domestic political arrangements they initiate (as is often maintained, for example, in pacifist ideology).
Both ways of thinking are equally untenable from an idealist point of view. The second is that of the prevailing sociology of relationships and interactions having individuals as their inflexible, substantial subjects; in earlier discussions, it was rejected again and again from the idealist point of view. The first is just as incorrect where it is applied; it too hardens the political bodies
Even though the essential primacy of foreign or domestic politics can thus be justified using arguments based solely on theoretically untenable presuppositions, in practical historical discussion (where the question is generally treated in German historical and political literature), one or the other answer will still be well founded in certain situations. In a country without heavy pressure on its borders, such as the United States, domestic politics is more likely to dominate than in Germany before and after the world war. It is taken more for granted in the Anglo-Saxon context that “the national life precedes international relations” [English in the original],[131] than in the German context, with its passive, contemplative, and slightly aestheticizing approach to foreign politics.[132] In revolutionary countries and those with turbulent domestic politics, foreign politics more easily become dependent on domestic politics than in stable constitutional systems.[133] In regard to all these possibilities, it is important here to establish only that foreign politics determines the essence and integration of the entirety of a state as much as domestic politics. To remain within the bounds of the conventional discussion, this fact will be illustrated through several examples. The most obvious is that foreign politics is not about physical objects, which has often been discussed, particularly in the theory of imperialism.[134] The Rhine issue is less a question of the Rhine border than of the overall worth of the German and French peoples.[135] The overall character of a foreign policy, once taken, regularly outlives its actual cause, because it becomes an essential quality of the state, which “cannot escape its shadow.”[136] According to Richelieu, larger states honor treaties to a greater degree than small ones, because they have to care more about their reputations;[137] that is because they, as stronger entities, are more identified with their policies, more marked by them. In particular, political treaties and constellations are known to be more difficult to change than, for example, economic ones, because the former determine the essence of those involved to a greater degree than the latter.[138] As an essential attribute of the state, its standing in foreign politics is a point of honor, an integrating element;[139] a diktat such as that of Versailles, for example, is so immoral not only because it demands sacrifice, but because it forces a change in the essence of those affected without their consent. Bismarck's idea of grounding the Austro-German alliance in the constitution would have meant only a quantitative increase in and emphasis on this alliance, which, as is always true of foreign politics, was already an integral element of the essence of the states involved. Thus in practice, healthy foreign politics is not only a condition, but in fact even an element of a nation's domestic health,[140] and theory
Part Two
Consequences for Constitutional Theory
THE ESSENCE OF THE CONSTITUTION
The foundations of a state theory outlined so far provide a very specific basis for the resolution of each and every problem of state theory and, in particular, for a very specific constitutional theory. …
The … problem [of the essence of the constitution] was treated in detail for the first time by Georg Jellinek.[143] He saw the heart of the question in the fact that “legal precepts are incapable of actually mastering the distribution of power within the state,” that “actual political forces move according to their own laws, which operate independent of any legal form.”[144] To the extent these forces are capable of “transforming the constitution,” they make law, and belong to the particular doctrine concerning the sources of constitutional law, since the conventional doctrine of the sources of law does not cover them.[145]
Thus there is either the questionable “normative force of fact,” which is particularly effective in the constitutional arena[146]—or an unclear juxtaposition of and opposition between the written constitution and “actual” “sociological” forces.
This problem, here correctly perceived but incorrectly conceived, is the core problem of constitutional theory. It is not an instance of the applicability of the general idealist problem of the tension between the “ought” and the “is,” meaning and the reality of life. Nor is it an instance of the theory of the sources of law. Instead, it is a question of the particular substance of the state as the object of legal regulation by its constitution. …
The constitution is the legal order of the state, or more precisely, of the life through which the state has its reality[147]—namely, of its process of integration. The meaning of this process is the constantly renewed production of the totality of the life of the state, and the constitution provides the legal norms for various aspects of this process.
Of course, the state does not live merely through those elements of its life regulated by its constitution; in order to be carried out at all in political life, the constitution must have its supplement in reliance on the basic drives of this life and a wealth of social motivations. But it cannot even entirely master those functions of state life that it does regulate; like all political life, these functions too arise out of the totality of the individual personality and continuously grow together into the super-personal totality of the state. Such a wealth of life cannot be fully comprehended and governed by a few schematic constitutional articles usually based upon constantly new prescriptions at third-and fourth-hand; it can only be hinted at and, to the extent these articles demonstrate integrating strength, be stimulated by them. Whether, and how, the goal of successful, satisfactory integration emerges from these articles depends upon the way in which all the forces of the political life of the entire people come into play. In the process, the stream of political life may often achieve this goal by taking paths that are not exactly constitutional; in that case, fulfillment of the goal of integration set by the inherent logic of spiritual values and the articles of the constitution would, despite these isolated deviations, accord more with the spirit of the constitution than a constitutional life that, though more faithful to the letter of the law, is less successful.
Thus it is the spirit of the constitution itself, its focus not on the details but on the totality of the state and the totality of its process of integration, that not only permits but even requires such elastic, supplementary constitutional interpretation deviating greatly from every other kind of legal interpretation.
Constitutions do not need to provide any special authority for this. Constitutional legislators need be as little aware of the inherent spiritual logic of a constitution as the individual need be aware of the larger meaning of his spiritual life—in particular, of the meaning of his political life as a component of the process of state integration. As a rule, a constitutional document grows out of a different, more doctrinaire view of its tasks. The only modern constitution, to my knowledge, that was drafted with complete, if unreflective, clarity about these tasks is that of the North German Union [Norddeutscher Bund] and the Empire [Kaiserriech]. But this does not rule out a similar use of other constitutions. Not only do systems of integration governed by norms expand on their own by dint of the inherent logic of spiritual values and its effect on the national creative will, and by way of spontaneous formations (parties, conventions, etc.) that depend on the greater or lesser political talent of the people, but also the institutions governed by norms themselves enter the universe of meaning, which sets them their task with or without the awareness and intent of the legislature; they operate, expand, or modify themselves according to this task, without this being a special legal problem. It is simply the immanent, self-evident point of
Thus it should come as no surprise, and is neither a shortcoming nor a reproach, that constitutions are able to grasp their objects only schematically and at certain specific points.[148] The objective intent of constitutions is and can only be to provide hints; they generally do this in traditional ways, in the form of receptions;[149] however, they do not thereby make the same claim to rigidly heteronomous authority as the law of subordinate associations, which must provide abstract and schematic legal norms for many individual cases. They give free rein to the general, occasionally positivized tendency of constitutional life toward integration and its inclination toward self-formation—apart from those occasions on which the constitutions strictly determine this life, attempting to rule in the manner of rigidly heteronomous norms that can only be eliminated by genuine prescriptive law.[150]
This means that constitutions claim their own substantive area of life as their object and task, just as other complexes of legal norms have theirs in regard to other substantive areas of life. It means a rejection of the jurisprudence that attempts to raise the constitution to an essential element of every legal order as such—to a, in fact, to the condition of its validity.[151] This does the constitution, and even more the dignity and the idea of law, a great injustice. This type of “constitutional theory” has often been refuted suc-cessfully—but this refutation is complete only once positive evidence has been provided of the constitution's own substantive task. …
This reality is constantly reproduced not by a constitution that is the “dormant, persistent element in state life”[152] but by a constantly renewed constitutional life. This is no different from the “constituting” of other groups, such as assemblies. Legally formalist, static thinking sees in this the act through which an assembly gives itself a chair, or at most rules of procedure, and declares itself in session—all of which, apart from its technical significance, has a more important actual meaning: It not only establishes the duties of the chair and the speakers but also completes the transition from the previous state of each individual's being in himself to the social state of being assembled. This transition is perceived by all those assembled, without exception, as a real experience, as a synchronized procedure permeating all, as integration into a group whose formation and action was the point of the meeting. But every chair of an assembly knows that the assembly is not set in motion once and for all when it is constituted, like a wound-up clock; rather, the constituting act must, so to speak, be renewed each moment; the
The criterion that distinguishes the state from other associations will not be discussed here in full. In any case, the state's special position has two consequences. First of all, its existence is not, as with most other associations, guaranteed by a power outside itself; it is not kept in motion by a motor or referee located outside its own structure; it is not carried by a heteronomous cause or guarantee, but integrates itself, merely by dint of an inherent logic of values, into an integrating system gravitating toward itself. In this sense, state constructions based in mechanistic autonomy, like those of Montesquieu, The Federalist, and [Robert] Redslob, are a fortunate parable of reality, although Wilson correctly characterized them as those of the Newtonian age.[153] Thus, in a very different sense than an association's constitution, a state's written constitution can be only a stimulus and barrier to this constitutional life gravitating toward itself, which cannot be guaranteed heteronomously. Further, from this system of integration there constantly develops anew the sovereign decision of the state as a “unity through decision universal in a territory,”[154] and this decision is necessary by virtue of its immanent logic, as granting formal authority and ordering power of final appeal; while those associations are generally optional means of achieving specific, individual, substantive goals. That is the basis of the special status of the state's constitution: first, the categorical necessity of the task of integration assigned it, as opposed to the optional character of other associations; and second, its limitation to its own immanent forces and guaranties in completing this task. …
… The establishment of the state's goal or sphere of activity and of the status of its members are not essential requirements of a constitution—af-ter all, the state's formal existence and life, and the assurance of this existence and life, are first of all ends in themselves, and thus the only essential tasks of the constitution.
Thus the so-called elements of the state and their constitutive delimitation are not regular objects of constitutional regulation. However, territory is its most basic, substantive concretization and is thus often spoken of in an introductory article of a constitution, just as the goal of an association is spoken of in its charter. While under the law of associations, however, this establishment of a goal is constitutive, mention of the territory that has been established in international law in relation to neighboring states does not, as a rule, bear this significance; thus it is typically missing from the majority of constitutions.
It is the same with the personal “element of the state.”[155] The territory essentially determines who is part of the state; the details of obtaining and losing citizenship are essentially technical, specialized questions of legislation that do not involve the essence of the state. Nor is the constitution concerned with the membership status of citizens. The state is not there because of this status, because of these rights, but as an end in itself; regulation of this legal status—for example, through catalogues of basic rights—constitutes the state through substantive elements, through a specific character of its rule of law and its culture, and it is not the equivalent of an association's rules of membership.
In contrast, organs, formal functions, and substantive tasks are essential elements of the constitution. In the creation of its organs, in their existence and constitutional activity, the state lives and is personally integrated; in its formal functions may be found its life as a process, its functional integration; in the substantive content lent by its territory, its constitutional character, and its constitutional tasks lies the third element upon which the community is based. All the same, the third element diminishes in importance; while the territory is essential, the remaining manifestations are far less so in contrast to the two other systems of personal and functional integration. But together, the three form the material content, the material law of the constitution. …
Part Three
Consequences for Positive Law
INTERPRETATION OF THE CONSTITUTION AS A WHOLE
The attempt made here is intended not merely as a contribution to the establishment of a idealist theory of state and constitution as a spiritual reality, but also as a contribution to state law theory. For it is from the consideration of positive state law that these views in fact developed,[156] so that they must, in turn, stand the test of positive law. …
… I begin with questions concerning the constitution as a whole; in particular, the problem of demarcating its content and establishing basic methods of interpretation.
The first, systematic issue of demarcation is that of distinguishing the law of the state from administrative law. The traditional definition that assigns the law of the state the static existence of the state, and administrative law its active functioning, has already been rejected in an earlier context.[157] Like administrative law, the law of the state regulates public life, to some extent even the same public life; for example, where both are responsible for administration, in the latter case as part of the separation of powers, as the executive power, and in the former as an isolated system of purposeful state
The question is not merely one of apportioning the material in this or that course or textbook, but of finding the universe of meaning relevant to the interpretation and evaluation of the material. A legal precept is misunderstood, is done an injustice, if it is seen and acknowledged as a component in a universe of meaning other than the one in which it belongs. It is an illusion, rare even with formalists, that a legal precept will be given the same interpretation and application everywhere, regardless of whether it is placed in the context of public or private, procedural or substantive, political or technical law. …
A second, closely related problem is that of distinguishing the formal from the substantive sense of the constitution. It is formalist agnosticism that despairs of creating a system independent of the accidental phrasing of written constitutional clauses—a system of norms that are fundamental elements in an attempt by the citizenry to positivize the integrating order through law.[158] However, creating such a system is not simple[159] and cannot in any case be found in varying lists.[160] It can be achieved only by energetically relating and tracing back the stuff of state law to the simple principle of meaning to which it is oriented. Calling this problem insoluble would mean the abdication of state law theory as a systematic discipline.
The criterion that distinguishes the constitution from the rest of the legal order, again and again, is the “political” character of its object. The distinction was obviously expressed and generally understood during the German revolution, when workers and soldiers councils were declared the repositories of “political power,”[161] while “administrative powers” were reserved to the Bundesrat.[162] Thus the concept of the political is indispensable to the theory of the law of the state. But especially for the demarcation and distinction with which we are concerned, nothing can be defined as political simply through “relation to a state purpose”[163] or in the manner newly established by Carl Schmitt,[164] but only in the sense grounding this treatise.
Even more important, fundamental consequences emerge for the interpretation of constitutional law.
The formalist method here refrains from consciously taking the idealist theory of the state, a theory of the essential quality of its object, as the starting point of its juridical work. It applies to this object its familiar “general” juridical concepts, largely those of a highly authoritarian law of associations. Thus this method breaks constitutional law down into an aggregate of individual norms and complexes of norms [Institute] that it subsumes under
First of all, all details of state law are to be understood not as isolated, by themselves, but only as elements in a universe of meaning they are to realize in the functional totality of integration. Future discussions will provide examples; here only a few will be sketched in advance.
The Reich's supervisory power over the Länder practically demands treatment by analogy with the Länder's supervisory power over local authorities; here, as there, a superior and an inferior association under public law, with the inferior responsible to the superior for fulfilling certain tasks and subject to the superior's special “supervisory power” to ensure that this responsibility is carried out properly. But while the Länder's supervisory power is exercised in regard to the local authorities when necessary to uphold the law and further the state interest, naturally not without sensitivity to local political conditions but without this sensitivity being legally required, the Reich's supervisory power cannot be isolated this way and must not be under the constitution. The Reich's supervisory power is an element in the fluid coordination of Reich with Länder and must always be seen in conjunction with the converse constitutional influence of the Länder on the Reich. The Reich's supervisory power is acceptable to the Länder only in this context, if the Länder are to retain their political self-respect. The Reich's supervisory power is held together with the Länders' constitutional right of influence by the higher law governing the relationship between Reich and Länder, the law of federal comity, the duty of all those involved to incline constantly toward agreement and consensus. Therefore, the phrasing of the Reich's law of supervision in the Weimar Constitution is not simply a diplomatic statement of what is in fact a relationship between “ruler and subject,”[165] but rather the appropriate expression of a profound difference from the seemingly analogous legal situation of local authorities.
In the same way, constitutional court jurisdiction cannot be seen as analogous to civil or administrative jurisdiction. Constitutional court protection of parliamentary minorities is different from civil court protection of
A further consequence of the inclusion of specific constitutional norms in the universe of state integration is that these norms have varying relevance for integration and different degrees of importance. This question of importance is a legal question; it is apparent[166] that to be faithful to the truth a textbook on the law of the state must accurately assess the importance of individual norms and complexes of norms. It is an inadequate interpretation of Article 3 of the Weimar Constitution when leading commentators emphasize that establishing the Reich colors results only in certain duties for the administration and the merchant marine but do not recognize that this provision (as can already be inferred from its position at the beginning of the constitution) ranks high in the constitution—a rank not first created by the sanctions imposed by the Law for the Protection of the Republic, but rather is instead presupposed and protected by these sanctions.[167] It is a legal question whether the parliamentary system, under the Reich Constitution, can be ranked a constitutional principle of the first or second order.[168] It is no different in any other legal field, except that the question of ranking individual elements of the state law system of integration, with its particularly strong systematic cohesion, is also, to a very great extent, an element of its scholarly conception. Even positivism would most likely admit this, to the extent that it has not reached its pinnacle in a logic of norms, in whose kingdom all cats are gray even by day.
Finally, the alterability of the constitution, the possibility of “constitutional transformation,” is a characteristic of constitutional law that flows from its all-encompassing nature.[169]
As a system of integration, constitutional law is expected to ensure fulfillment of an ever-changing challenge that must constantly be met in an optimal fashion. The factors in meeting this challenge shift as time goes by and situations change. This transformation can occur outside of constitutional law if it lies in the sphere of social spontaneity, of “extra-constitutional”[170] forces, especially of political parties—a spontaneity presupposed, even taken into account, but not regulated, by the constitution. Transformation can concern the constitution itself, by gradually shifting the rank and importance of constitutional factors, complexes of norms, and norms.[171] It can even introduce a new factor in constitutional life; that would be the case if the limitation on the parliamentary system foreseen by [Willi] Hellpach[172] came to pass through a practice of increasingly creative ministerial decrees. The latter two cases involve “constitutional transformation” that changes the content of the constitution in a material sense. It is clear that this change cannot be bound by the requirements of the development of prescriptive law. It follows from the character of the constitution, which normativizes a system of integration that constantly fulfills its task: this integrating task is the regulative principle not only for the constitutional legislator but even for the fluid development of the constitution's meaning and authority. …