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This selection of the major works of constitutional theory during the Weimar period reflects the reactions of legal scholars to a state in permanent crisis, a society in which all bets were off. Yet the Weimar Republic's brief experiment in constitutionalism laid the groundwork for the postwar Federal Republic, and today its lessons can be of use to states throughout the world. Weimar legal theory is a key to understanding the experience of nations turning from traditional, religious, or command-and-control forms of legitimation to the rule of law. Only two of these authors, Hans Kelsen and Carl Schmitt, have been published to any extent in English, but they and the others whose writings are translated here played key roles in the political and constitutional struggles of the Weimar Republic. Critical introductions to all the theorists and commentaries on their works have been provided by experts from Austria, Canada, Germany, and the United States. In their general introduction, the editors place the Weimar debate in the context of the history and politics of the Weimar Republic and the struggle for constitutionalism in Germany. This critical scrutiny of the Weimar jurisprudence of crisis offers an invaluable overview of the perils and promise of constitutional development in states that lack an entrenched tradition of constitutionalism.
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Weimar PHILOSOPHY, SOCIAL THEORY, AND THE RULE OF L AW General Editors Andrew Arato, Seyla Benhabib, Ferenc Fehér, William Forbath, Agnes Heller, Arthur J. Jacobson, and Michel Rosenfeld 1. William Rehg, Insight and Solidarity: A Study in the Discourse Ethics of Jürgen Habermas 2. Alan Brudner,The Unity of the Common Law: Studies in Hegelian Jurisprudence 3. Peter Goodrich, Oedipus Lex: Psychoanalysis, History, Law 4. Michel Rosenfeld, Just Interpretations: Law between Ethics and Politics 5. Jeanne Lorraine Schroeder, The Vestal and the Fasces: Hegel, Lacan, Property, and the Feminine 6. Michel Rosenfeld and Andrew Arato, editors, Habermas on Law and Democracy: Critical Exchanges 7. Desmond Manderson, Songs without Music: Aesthetic Dimensions of Law and Justice 8. Arthur J. Jacobson and Bernhard Schlink, editors, Weimar: A Jurisprudence of Crisis Weimar A Jurisprudence of Crisis Arthur J. Jacobson and Bernhard Schlink editors tr anslated by Belinda Cooper with Peter C. Caldwell, Stephen Cloyd, David Dyzenhaus, Stephan Hemetsberger, Arthur J. Jacobson, and Bernhard Schlink UNIVERSITY OF CALIFORNIA PRESS Berkeley Los Angeles London University of California Press Berkeley and Los Angeles, California University of California Press, Ltd. London, England © 2000 by the Regents of the University of California Library of Congress Cataloging-in-Publication Data Weimar : a jurisprudence of crisis / edited by Arthur J. Jacobson and Bernhard Schlink; translated by Belinda Cooper with Peter C. Caldwell . . . [et al.]. p. cm. — (Philosophy, social theory, and the rule of law ; 8) Includes bibliographical references and index. isbn 0-520-22059-5 (cloth : alk. paper) 1. Constitutional history— Germany—Sources. 2. Constitutional law— Germany—Philosophy—History—Sources. 3. State, The—History—Sources. 4. Germany—Politics and government—1918 –1933—Sources. I. Jacobson, Arthur J. II. Schlink, Bernhard. III. Series. kk4710. w45 2000 342.43⬘029⬘09042— dc21 00-037772 Manufactured in the United States of America 09 08 07 06 05 04 03 02 01 00 10 9 8 7 6 5 4 3 2 1 The paper used in this publication meets the minimum requirements of ansi/niso z39.48⬁ 1992 (r 1997) (Permanence of Paper). 䊊 For Peninah Petruck CONTENTS preface / xi translation and apparatus / xiii<