Vol. 11 No. 5 (May 2001) pp. 181-183.

WEIMAR: A JURISPRUDENCE OF CRISIS by Arthur J. Jacobson and Bernhard Schlink (Editors). Berkeley: University of California Press, 2000. 405 pp. Cloth $55.00. ISBN: 0-520-22059-5.

Reviewed by Georg Vanberg, Department of Political Science, Florida State University. Email: gvanberg@mailer.fsu.edu

If ever an advanced, industrialized state was in crisis, the Weimar Republic surely counts. With defeat in a disastrous world war, the monarchy was swept away in 1918. Under conditions of civil unrest (even the threat of impending civil war), social democratic and liberal politicians stepped into the void to craft a constitution that created Germany's first genuine experiment with democracy. However, the prospects for the new regime were uncertain. Ratification of the Versailles Treaty, which included the "war guilt clause," enormous reparation demands, loss of territory, and occupation of western lands immediately settled the new democracy with a difficult burden. The early 1920's were marked by a series of coup attempts (including Hitler's Beer Hall Putsch in 1923). Economic adversity, partially a result of reparation demands, culminated in a period of hyperinflation that wiped out much of middle class savings. The onset of the Great Depression imposed further domestic strain. Under these difficult circumstances, and in part due to the fragmented party system, the formation of stable majority governments became more and more difficult. Increasingly, conservative presidential cabinets began to rule by decree. To many Germans, this troubled experience only seemed to suggest that parliamentary democracy provided no viable option for Germany, thus opening the door for appeals from extremist parties intent on abolishing democratic institutions. With Adolf Hitler's rise to power, Germany's first attempt at establishing democratic government had failed.

This fascinating history has provided rich material to social scientists studying the preconditions for successful democratic government. Scholars of political culture have studied the failure of a "republic without republicans" while students of political institutions have tried to tease out the institutional shortcomings of the Weimar constitution. Arthur Jacobson and Bernhard Schlink's WEIMAR: A JURISPRUDENCE OF CRISIS provides yet another interesting perspective on the Weimar experience. The edited volume consists of a collection of translated excerpts from the works of nine Weimar legal scholars. Each chapter is preceded by a short introduction that situates the author in the debates among Weimar scholars. The range of theorists that are represented is broad. It includes those already well known in English- speaking circles (Max Weber, Hans Kelsen, and Carl Schmitt) as well as legal theorists that are less well known outside of Germany (Hermann Heller, Gerhard Ansch》z, and Rudolf Smend). More importantly, the collection represents the views of scholars that took radically different positions on the questions of the day. It includes essays by avid supporters of the Weimar constitution (like Hugo Preuss and Ansch》z) as well as by those who were openly hostile to

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parliamentary democracy in general and to the Weimar constitution in particular (like Schmitt). In providing this collection of essays, Jacobson and Schlink have done English-speaking legal scholars and students of judicial politics who would like to get an impression of Weimar legal thought a great service. At the same time, potential readers, especially those who are, like me, not trained as legal scholars, should be warned that this book makes for challenging reading. In large part, of course, these difficulties can be attributed to the nature of Germanic legal writing, much of it steeped in the Hegelian tradition, which does not become easier to read in translation.

In the opening survey chapter, the editors contrast the American and Weimar experiences with constitutional government and constitutional change. They argue that the debates among Weimar legal scholars, reflected in this collection, "play a role today in Germany reminiscent of the role of THE FEDERALIST in the United States" (p. 3). Consciously reading the volume against the backdrop of THE FEDERALIST, one is struck by the fundamentally different character of the questions and answers that were debated by Weimar scholars. Philosophically, the American Founders departed from the idea of the contingency of political arrangements embedded in contract theory: individuals create governments for their purposes. As a result, THE FEDERALIST is fundamentally a practical treatise on institutional design. It tries to explicate the political consequences of choosing particular institutional arrangements. What seems remarkable about the Weimar debate (at least as represented here) is the extent to which concrete questions of constitutional design appear to have been of less immediate interest to Weimar scholars. Many of the essays collected in this volume revolve around abstract concepts in legal philosophy and democratic theory, including the nature of democracy and legal order, the "people's will," the "nation," and "the unity of the state." As Jacobson and Schlink point out, this focus is explained, in part, by the fact that the German state preceded (in a sense) the Weimar constitution while the American constitution created a state that did not previously exist as an independent entity (p. 3).

Where the essays collected here touch more immediately on the constitutional questions confronting the Weimar Republic, one can often not help (given the benefit of hindsight) reading passages with a certain sense of impending tragedy. It is common wisdom that the downfall of Weimar democracy can be explained, at least in part, by a lack of democratic commitment and a prevalence of virulent nationalism among German citizens. The essays illustrate powerfully the extent to which such sentiments influenced even intellectuals who were deeply committed to the success of Weimar democracy. Take, for example, Ansch》z's essay "Three Guiding Principles of the Weimar Constitution," given as a speech to Heidelberg law students in 1922. Without question, Ansch》z was a democrat and ardent supporter of the Weimar constitution. Against the backdrop of the early 1920's, he tried to make use of the occasion to urge his students to support the democratic state, arguing that there "are PREREQUISITES for every constitution, especially that of a democratic state. It IS UP TO US to make their prerequisites a reality-up to us, and especially TO YOU YOUNG GERMANS" (p. 149, emphasis in original). Instead of stressing a CONSTITUTIONAL commitment to the new republic, however, Ansch》z connects these prerequisites to an openly aggressive nationalism:

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"And just so as no love can exist without hatred of the deadly enemies of that which one loves, so too the love of fatherland. Just as it is holy, so too is the hate that it demands. But do not turn your hatred against your fellow citizens, turn it where it belongs. The enemy is not to the left and right, BUT ON THE RHINE; there he is, the only one with whom there can be neither peace nor reconciliation, I do not need to name him" (p. 150, emphasis in original).

Of course, Ansch》z's remarks can be explained, in part, by the extraordinary burdens imposed by the Versailles Treaty and the rhetorical need to appeal to students caught up in the practical debates of the day. Nevertheless, the fact that a legal scholar who participated in writing the Weimar constitution, who was a committed democrat, and who would resign from his academic position and go into seclusion after the Nazi take-over of power, would choose to extol an aggressive nationalism instead of a constitutional commitment to a particular political order provides a remarkable indication of the intellectual crisis of the Weimar period.

In short, this volume achieves at least two important aims. It provides a fascinating glimpse of the intellectual climate among Weimar legal scholars in their own words. It also conveys a strong sense for the fundamentally different character of constitutional argument during the American founding and the Weimar period. However, despite their claims, the editors were less successful in establishing that the dialogue of the Weimar period has direct relevance for contemporary American constitutional debates. To a certain extent, this may not be a failure of the volume but rather a product of my background as a political scientist and not as a legal philosopher. At the same time, I suspect that a slightly different balance between original work and introductory material might have been helpful. An expanded introduction for each chapter, even if at the expense of primary material, would probably have made it easier for a broader audience to appreciate more fully the fundamental issues raised in these essays. Nevertheless, this book constitutes a valuable resource for comparative judicial scholars with an interest in Weimar jurisprudence.