Popular Sovereignty and the Crisis of German Constitutional Law

The Theory and Practice of Weimar Constitutionalism

Popular Sovereignty and the Crisis of German Constitutional Law

Book Pages: 320 Illustrations: 1 figure Published: September 1997

History > European History, Law > Legal History, Politics > Political Science

Popular Sovereignty and the Crisis of German Constitutional Law is a historical analysis of competing doctrines of constitutional law during the Weimar Republic. It chronicles the creation of a new constitutional jurisprudence both adequate to the needs of a modern welfare state and based on the principle of popular sovereignty. Peter C. Caldwell explores the legal nature of democracy as debated by Weimar’s political theorists and constitutional lawyers. Laying the groundwork for questions about constitutional law in today’s Federal Republic, this book draws clear and insightful distinctions between strands of positivist and anti-positivist legal thought, and examines their implications for legal and political theory.
Caldwell makes accessible the rich literature in German constitutional thought of the Weimar period, most of which has been unavailable in English until now. On the liberal left, Hugo Preuss and Hans Kelsen defended a concept of democracy that made the constitution sovereign and, in a way, created the "Volk" through constitutional procedure. On the right, Carl Schmitt argued for a substantial notion of the "Volk" that could overrule constitutional procedure in a state of emergency. Rudolf Smend and Heinrich Triepel located in the constitution a set of inviolable values of the political community, while Hermann Heller saw in it a guarantee of substantial social equality. Drawing on the work of these major players from the 1920s, Caldwell reveals the various facets of the impassioned constitutional struggles that permeated German legal and political culture during the Weimar Republic.


Popular Sovereignty and the Crisis of German Constitutional Law is a thoroughly researched and very reasonable study of German constitutional theory during the Weimar Republic and before. . . . [T]he book is well reasoned and makes fascinating reading for all those interested in the development of German constitutional theory during a period of time when nascent democratic values were already being undermined by the dangerous dealings of ruthless demagogues who craved theoretical support from constitutional lawyers for a so-called ‘legal revolution.’” — Sven Reckewerth , International and Comparative Law Quarterly

“[An] important contribution to our understanding of the failure of liberalism to take root in Germany in the 1920s. . . . [Caldwell’s] work is a breath of fresh air for American students of constitutional theory, because the current debates over the U.S. Constitution’s meaning take for granted such fundamental questions as popular sovereignty and the legitimacy of the welfare state. The book also contributes to the understanding of the basic law of the Federal Republic of Germany. . .” — Kenneth Holland, Law and Politics Book Review

“[W]ide-ranging [and] closely reasoned. . . . [T]his book is a major addition to our literature on the Weimar Republic, illuminating an aspect of that era that has been largely neglected. It is particularly significant . . . not only for the well-done comparison of the views of Kelsen and Schmitt but also because it illustrates why for the most part Weimar’s legal theoreticians were unwilling to function as a support group for parlimentary democracy.” — Dietrich Orlow , Journal of Modern History

“Caldwell draws an impressive picture of German legal history, from the constitutional crisis in Prussia in the 1860s through the ‘statutory positivism’ of the German Empire, to the new constitutional jurisprudence of popular sovereignty in the Weimar Republic. . . . This remarkable study on the history of legal scholarship is not only an important contribution to German intellectual history between 1871 and 1933. It also offers new perspectives on the political culture of the Weimar Republic.” — Eckhardt Fuchs , German History

“Peter C. Caldwell’s important study of German constitutional law is a welcome addition to the historical literature. . . . Caldwell provides an overview of the legal positivism of imperial Germany through the fateful court decisions on the Reich’s imposition of emergency rule in Prussia a few months before the Nazi seizure of power. His sections on legal positivism under the monarcy are among the best available and make an excellent contribution ot our understanding, as do sections on legal positivism and the Weimar constitution. . . . [A] very useful book establishing the contemporary relevance of Weimar constitutionalism [and] expand[ing] the debate beyond the narrow and perhaps overworked Kelson-Schmitt duality by finally recognizing the contributions of other significant legal theorists.” — Joseph K. Bendersky, American Historical Review

“Peter C. Caldwell’s study provides a new dimension to our analysis of the political and economic instability of the Weimar years by analyzing the ideas of major theorists of constitutional law, and how their ideas provide insight into new (perhaps even revolutionary) directions that German constitutional law developed during the short-lived republic. . . . Caldwell’s study is a well-documented analysis certain to fill a gap in the literature of German legal theory and constitutional history.” — L. M. Stallbaumer, German Studies Review

“This fine monograph tackles a daunting and difficult subject with skill and insight, and it delivers a payoff that extends beyond its ostensible period of focus. It promises to become the starting point among English language accounts of the history of German public law theory from the Kaiserreich through Weimar, with important foreshadowings of ongoing debates in the Federal Republic.” — Kenneth F. Ledford , Central European History

"Popular Sovereignty and the Crisis of German Constitutional Law . . . is thorough historically, giving a good account of constitutionalism and constitutional theory in Wilhelmine Germany, and of the way that leading theorists such as Paul Laband in the pre–1918 Empire set the tone for the theorizing later to come under Weimar. . . . The sequence of events leading up to and culminating in the disaster of 1933 is brilliantly grasped in Caldwell, and the main lines of legal theoretical controversy are sketched out reasonably well. Caldwell does, moreover, put real and rewarding effort into accounting for the German (and Austrian) tradition in public law scholarship, which supplies important context for a rounded understanding of basic points in issue among constitutional theorists and philosophers of law in 1932, and the preceding years." — Neil MacCormick , Texas Law Review

"Peter Caldwell’s masterful study of German constitutional law and theory between 1919 and 1933 identifies the origins of the conflict between Prussia and the Reich in the preceding regime, the German Reich (1871–1918). Caldwell’s analysis of legal positivism and constitutional monarchy in the Reich of 1871 is the best account in English since Rupert Emerson’s State and Sovereignty in Modern Germany. . . . [An] exciting, intelligent, and provocative book." — Ellen Kennedy, Texas Law Review

“A searching examination and critical analysis of the debates in Germany over the meaning and interpretation of the constitution during the Weimar years. No other book in English, so far as I know, treats Weimar constitutionalism with the depth and analytical power of this study. What an admirable study of intellectual history this book is!” — Donald P. Kommers, University of Notre Dame

“An outstanding contribution to the literature on 20th-century Germany and its political/legal theory.” — Ellen Kennedy, University of Pennsylvania


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Peter C. Caldwell is Associate Professor of History and German Studies at Rice University.

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Paper ISBN: 978-0-8223-1988-7 / Cloth ISBN: 978-0-8223-1979-5
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