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The Development of the Executive Power in Germany

Published online by Cambridge University Press:  02 September 2013

Carl J. Friedrich
Carl J. Friedrich
Affiliation:
Harvard University
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Extract

The broad use of the “dictatorial” powers granted by the German constitution to the president and the widespread popular demand for constitutional and administrative reform are the two dominant themes of political discussion in Germany today. Both are centered in the problem of what place the executive power occupies, and should occupy, in the German constitutional order. In this age of dictatorship and national concentration, the question is by no means peculiar to Germany. But the German situation contains a number of unusual features which it is the object of this paper to make more vivid and understandable. To this end, I shall first sketch the earlier history of a rather independent executive, then show the place of the executive power in the ordinary parliamentary system of the Weimar constitution, and finally discuss the emergence of a more independent executive under the presidential emergency power.

Type
Research Article
Information
American Political Science Review , Volume 27 , Issue 2 , April 1933 , pp. 185 - 203
Copyright
Copyright © American Political Science Association 1933

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References

1 L'introduction du régime parlementaire en France sous Louis XVIII et Charles X (1904).

2 The German word is Selbstbeschränkung. Regarding this notion, see Ihering, Der Zweck im Recht, and Georg Jellinek, Allgemeine Staatslehre. For an English commentary, I recommend the admirable chapter in Emerson's, RupertState and Sovereignty in Modern Germany, pp. 59 ff.Google Scholar

3 Cf., regarding all this, Oeshey, R., Die Bayerische Verfassungsurkunde vom 26. Mai 1818 und die Charte Ludwigss XVIII vom 4. Juni 1814 (1914)Google Scholar, and Doeberl, M., Ein Jahrhundert bayerischen Verfassungslebens (1918)Google Scholar. That a really independent judiciary did not come into existence until 1861 is pointed out on p. 116. For an extensive, though rather controversial, constitutional interpretation, see Max Seydel's Bayerischea Staatsrecht.

4 Gesetz vom 4. Juni 1848, die Verantwortlichkeit der Minister betreffend (in Bayern's Gesetze und Gesetzbücher, Vol. 6, p. 1 ff.Google Scholar).

5 Concerning this stage, see my Johannes Althusius' Politica, p. xxx ff. and the literature cited there.

6 Gesetz vom 30. März 1850, den Staatsgerichtshof und das Verfahren bei Anklagen gegen Minister betreffend (pp. 4 ff.).

7 See Friedrich, C. J. and Cole, Taylor, Responsible Bureaucracy; A Study of the Swiss Civil Service (Cambridge, 1932), Vol. I of Studies in Systematic Political Science and Comparative GovernmentCrossRefGoogle Scholar.

8 See, for these provisions, Friedrich, C. J., “The German and the Prussian Civil Service”, in White, Leonard D. (ed.), The Civil Service in the Modern State, p. 412 fGoogle Scholar. The antecedent period of development is discussed admirably in Dorn, Walter L., “The Prussian Bureaucracy in the Eighteenth Century”, Political Science Quarterly, September, 1931, pp. 403 ff.CrossRefGoogle Scholar, March, 1932, pp. 77 ff., and June, 1932, pp. 258 ff.

9 See, for these and other aspects, Bornhak, C., Preussisches Verfassungsrecht (1888)Google Scholar. The English accounts of this structure do not show any appreciation of the point here urged. They are all written from the point of view of an uncritical acceptance of English parliamentary government as the ideal form of government. Even most American writers have fallen prey to this convenient stereotype, and have failed to notice the analogies with the structure of the United States.

10 Elliott, J., Debates on the Federal Constitution, Vol. IV, pp. 120 f.Google Scholar

11 Lindsay Rogers was, therefore, quite correct when he discussed Wilson's leadership during the war as “Presidential Dictatorship in the United States”, Quarterly Review (1919)Google Scholar.

12 Associated Press despatches, Feb. 8, 1933.

13 See Anschütz, Gerhard, Die Verfassung des deutschen Reichs vom 11. August 1919, 14th ed.Google Scholar, first half [hereafter cited as Anschütz], p. 319. Cf. Thoma, Richard, “Die rechtliche Stellung des parlamentarischen Regierungssystems”, in Handbuch des deutschen Staatsrechts (ed. Anschütz, Gerhard und Thoma, Richard), Vol. I, pp. 503 ff.Google Scholar, and Schmitt, Carl, Verfassungslehre (1928), §§ 24–27Google Scholar.

14 Thoma, op. cit., p. 506.

15 Schmitt, , Verfassungslehre, pp. 344 f.Google Scholar

16 Anschütz, p. 322, and Thoma, op. cit., p. 511. See also Wolgast, , Zum deutschen Parlamentarismus, pp. 70 ff. and 77 ffGoogle Scholar. Thoma suggests that Article 54 be amended to require that the vote of no-confidence be sustained by a uniform set of reasons (einheitlich begründet).

17 Anschütz, pp. 323 f.

18 The controversy turned essentially upon two points—one a question of fact: “Had the chancellor asked for the floor before the vote started?”; the other a question of law: “Does the provision of Article 33, paragraph 3, which provides that ‘at their request the representatives of the cabinet shall be heard during the deliberations, and the representatives of the National Cabinet shall be heard even outside the regular order of business’ mean that a member of the cabinet can even interrupt a vote which i8 already in process of being taken? These questions were aired in the Standing Committee for the Protection of the Rights of the Representatives of the People (Article 35). The opinion prevailed that, as Anschütz (p. 215) expresses it, the cabinet members are heard only during the deliberations, but not after their conclusion, which would oblige one to deny the right of the chancellor to demand the floor after the voting had begun. This focuses full attention upon the first question of fact, and the committee passed a resolution on September 27, 1932, as follows: “The Committee states as a fact, upon the basis of the evidence before it as a committee of inquiry regarding the events in the meeting of September 12, 1932: ‘Chancellor von Papen had demanded the floor only after the vote had been started by the president of parliament. The acts of the president of Parliament complied with the constitution and the rules of procedure of parliament. The chancellor could have demanded the floor in time.’” See, for this, Frankfurter Zeitung, September 28, 1932.

19 See the decision of the Court of State (Staatsgerichtshof) of November 21, 1925, RGZ, Vol. 112, p. 5 f. Regarding this court itself, see Lammers, Das Gesetz, über den Staatsgerichtshof, and Friedrich, C. J., “The Issue of Judicial Review in Germany”, Political Science Quarterly, XLIII, p. 188 ff. (1928)CrossRefGoogle Scholar.

20 See Smend, Rudolf, Festgabe der Bonner juristischen Fakultät für Karl Bergbohm p. 283 fGoogle Scholar. Smend has elaborated upon the problem of “integration” in its various aspects in his magistral Verfassung und Verfassungsrecht. The general importance of integration has always been more readily realized in English-speaking countries; the particular problems of representation have been insisted upon with persuasive lucidity by A. Lawrence Lowell, especially in his Public Opinion in War and Peace.

21 Schmitt, Carl (Verfassungslehre pp. 228 ff.)Google Scholar insists upon the need of homogeneity, and points out that earlier democratic thought (Aristotle, Levellers, Rousseau, etc.) always presupposed such homogeneity. In his later study, Der Hüter der Verfassung (1931), he develops the implications for Germany, particularly pp. 73 ff. Kelsen's, polemic, “Wer soil der Hüter der Verfassung sein?,” Die Justiz, Vol. VI, pp. 576 ff.Google Scholar, misses this point by taking the homogeneity for granted.

22 See Laski, Harold J., “The Present Position of Representative Democracy,” in this REVIEW, Vol. 26, pp. 629 ff.Google Scholar

23 It was set up by the electoral law of April 27, 1920 (RGB1, p. 627), changed in details by laws of October 24, 1922 (RGB1, p. 801), Dec. 31, 1923 (RGB1, 1924, p. 40), and March 13, 1924 (RGB1, p. 173). The system is described concisely in Munro, William B., The Governments of Europe, pp. 631 ffGoogle Scholar. The constitutionality of this law has been contested before the Court of State, and has been affirmed; see RGZ, Vol. 128, p. 1 ff. and Vol. 130, p. 18 ff.

24 See, regarding this, Anschütz, pp. 401 ff. Since 1924, the resulting uncertainty as to what is constitutional law is somewhat lessened by the practice of indicating the constitutional amending nature by the addition to the proclaiming preamble: “… after it has been ascertained that the requirements of legislation amending the constitution have been fulfilled for ….” See, regarding this whole problem, Lowenstein, Karl, Erscheinungsformen der Verfassungsänderung (1931), particularly pp. 30 ff., 47 ff., 56 ff.Google Scholar

25 See, for the most recent discussion, Das Problem des Reichsrats (1930), published by the Bund zur Erneuerung des ReichesGoogle Scholar. The most searching analysis is found in Bilfinger, Carl, Der Einfluss der Einzelstaaten auf die Bildung des Reichswillens (1923)Google Scholar and the same author's contribution to the Handbuch des deutschen Staatsrechts, Vol. I, §§ 46, 47.

26 Article 63. See, regarding this, Hummel, , Preussen und seine Provinzen im Reichsrat (1928)Google Scholar, and the literature cited in Anschütz for this article.

27 For the bearing of this decision upon Article 48, see below, p. 201. The constitutional issues involved in this controversy are very complex. Its federal aspect necessitates separate treatment. Cf. Schmitt, Carl, “Die Verfassungsmässigkeit der Bestellung eines Reichskommissars für das Land Preussen”, Deutsche Juristenzeitung, August 1, 1932Google Scholar; Jellinek, Walter, “Zum Konflikt zwischen Preussen und dem Reich”, Reichsverwaltungsblatt, August 27, 1932Google Scholar; and Hans Nawiasky, “Die gegenseitigen Rechtsverhältnisse von Reich und Ländern bei der Handhabung des Art. 48 der Reichsverfassung,” ibid., August 6, 1932.

28 See, for an earlier discussion, Carl Friedrich, Joachim, “Dictatorship in Germany?” Foreign Affairs (1930)Google Scholar, and the literature cited there. The important historical and systematic study Die Diktatur, by Carl Schmitt, will be published soon in a translation by F. M. Watkins. The essential points of the present writer's essay have apparently not been considered by Lindsay Rogers, Sanford Schwarz, and Nicholas Kaltschas, in their recent article, “German Political Institutions—Article 48”, in Political Science Quarterly, Vol. 57, pp. 576 ffGoogle Scholar. With all due regard to the learning of the several authors (and it does not appear who has done what), I cannot help feeling that their approach to the general questions involved in the use of Article 48 is not entirely satisfactory, and that a certain amount of “liberal” prejudice has crept into their analysis. For example, the impression is conveyed to the reader that a presidential government is not “republican,” and that it is an “interregnum”—a misinterpretation which one might expect in England, but is surprised to encounter in the United States, particularly in view of what has been said above, p. 190. Again, the article's argument seems to suggest that it was the German president's fault that no majority could be formed in the Reichstag. But is that true? As far as I know, it is contrary to the prevailing opinion of those best informed that “there were negotiations for a cabinet which might be formed by a mock marriage of Centrists and Hitlerites, but the president forbade the banns.” It seems to me unfortunate to reproduce such temporary back-stage gossip in scholarly work. Even if the assertion were correct, the president would deserve commendation for his action; as the official justice of the peace, he is not meant by the constitution to condone such a companionate marriage. However, apart from these general observations, the aforementioned article contains a very valuable analysis of the actual use made of Article 48, and in considerable detail. Compare also Kraus, Herbert, The Crisis of German Democracy, Chap, IX and p. 71 ffGoogle Scholar. The German literature is very extensive. See, for an admirable summary of the literature and prevailing opinion, Anschütz, op. cit., pp. 267 ff.

29 See my “Dictatorship in Germany?” Foreign Affairs (1930)Google Scholar.

30 In the constitutional committee. See Vol. 336, p. 233.

31 “Der Reichspräsident kann, wenn im Deutschen Reiche die öffentliche Sicherheit und Ordnung erheblich gestört oder gefährdet wird, die zur Wiederherstellung der öffentlichen Sicherheit und Ordnung nötigen Massnahmen treffen, erforderlichenfalls mit Hilfe der bewaffneten Macht einschreiten. … Die Massnahmen sind auf Verlangen des Reichstags ausser Kraft zu setzen.” See Anschütz, pp. 267 ft.

32 See Article 50 of the constitution.

33 This seems to be the tendency of Lindsay Rogers in the article cited, p. 581. At any rate, it does not become sufficiently clear that the Reichstag has this power. The phrase “formal approval is not necessary,” is misleading. Politically, the power to disapprove is more important.

34 This he did on July 26, 1930, see RGB1, I, p. 311 ff. This ordinance contains minor additions to the decree of July 16, 1932 (RGB1, pp. 207 ff. and 212 ff.), revoked by the ordinance of July 18, 1930 (RGB1 p. 223). The legality of his action was confirmed by the National Judicial Court in a criminal case decided in Oct., 1931. See RGS, Vol. 65, p. 364.

35 This happened on September 12, 1932. See above, pp. 192. The decree for the dissolution stated frankly that it was being ordered “because of the danger that the Reichstag may demand the revocation of the emergency ordinance.”

36 See Article 59 for impeachment proceedings. The problem of what constitutes the “same cause” was first elaborated by Schmitt, Carl, Archiv des öffentlichen Rechts, Vol. 8, pp. 162 ff.Google Scholar

37 If the execution of emergency ordinances falls within the province of state administration, the concurrence of the Council is imperative, according to Article 77.

38 RGB1, I, p. 377. This ordinance transferred the Prussian government to a National Comissioner.

39 RGB1, I, p. 425 ff. For a summary of its contents, see the title given by Lindsay Rogers, in the article cited above, p. 593.

40 Lindsay Rogers seems to be of another opinion, ibid., p. 580.

41 In my contribution, “The German and the Prussian Civil Service”, in The Civil Service in the Modern State, edited by White, L. D. (1930)Google Scholar.

42 On this ordinance-making power, see the competent discussion in Frederick F. Blachly and Miriam Oatman, The Government and Administration of Germany, Chap. XIX.

43 See the Frankfurter Zeitung for July 20 and later, as well as Der Angrifi (National Socialist) and Die Rote Fahne (Communist).

44 See Frankfurter Zeitung, Oct. 26, 1932, pp. 3–4Google Scholar. The italics are mine. See also the admirable and concise analysis by Richard Grau, in the same paper, Oct. 8, 1932, pp. 3-4, which anticipates the decision of the Court all along the line. It is entitled “Der Konflikt vor dem Staatsgerichtshof.”

45 Frankfurter Zeitung, Oct. 26.

46 Of the opposite opinion is Carl Schmitt, who, in a pamphlet entitled Legimität and Legalität, written just before the fateful 20th of July, 1932, maintains that the first procedural part of the constitution must give way when it comes into conflict with the second and substantive part.

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