E-Book Overview
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.
E-Book Content
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
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For Peninah Petruck
CONTENTS
preface / xi translation and apparatus
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xiii<