Peter C. Caldwell, Rice University
Sovereignty, Constitutionalism, and the Myth of the State: Article Four of the Weimar
Constitution
Introduction
Article Four of the Weimar Constitution stated that “The generally recognized
rules of international law are valid as binding constituent parts of the law of Germany.”
That article played almost no role in the German judiciary during the Weimar Republic; it
is possible that the legal norm was in fact legally irrelevant even in the few cases where
the Reichsgericht, the highest court of the land, invoked it.1 But the article touched a raw
nerve in postwar Germany. In 1919, after all, Germany had found itself an object rather
than an active subject in international relations. Its representatives were excluded from
much of the Paris Peace Conference, and the Treaty of Versailles was, in essence,
dictated to the Germans. The process exposed how empty the notion of sovereignty could
be in face of a major inequality of power or military defeat. In this context, as opposed to
the context of judicial decisions, then, Art. 4 raised the question of how coercive power
affected a state's relationship to the international legal order, and indeed what the nature
of sovereignty was.
The purpose of this paper is to explore the meaning of Art. 4 in the context of the
Weimar debate over the nature of the state. I will make the following arguments:
1
General summary of the meaning of Art. 4 in Gerhard Anschütz, Die Verfassung des Deutschen Reichs
vom 11. August 1919, 14th ed. (Berlin: Georg Stilke, 1933), 60-70. Max Fleischmann suggests that Art. 4 in
its revised form really only restated what German courts had long since been doing: "Die völkerrechtliche
Stellung des Reichs und der Länder," in Gerhard Anschütz and Richard Thoma, Handbuch des Deutschen
Staatsrechts (Tübingen: Mohr: 1930), 1:219.
1

First, this article had a propagandistic function as well as a symbolic one,
indicating to the world Germany's reentry into the community of nations
and to the German population itself a break with the past. Included in the
constitution before the completion of the peace negotiations in Paris, it
was intended to prove that Germany was dedicated to international law
and to mark a break with German traditions of statist thinking, which often
denied the very existence of international law.

Second, legal scholars and politicians consciously neutralized the legal
significance of the article over the course of the Weimar Republic, as the
most important commentaries show. Its neutralization reflected the prewar German tradition of rejecting the existence of or at least downplaying
the force of international law, certainly, but also the real complexities
involved with relating domestic law to international law. In other words,
not just ideology was involved in the legal disempowerment of the article.

Third, Art. 4, whatever its judicial significance, raised a problem at the
center of post-war German political thinking. For the article raised the
question of how state law and international law related, indeed of whether
international law in fact limited popular sovereignty. Politicians and legal
writers on both left and right condemned the peace dictated by the Allies.
They argued the Germany had ceased to be sovereign, and that the
international law of the Entente merely propounded the fiction that
Germany was sovereign.
2

Fourth, the discussion around Art. 4 reveals an important function of a
democratic constitution beyond positive law itself: to lay out the
challenges that a political community will have to confront in the future.
The democratic constitution posed a challenge to the German statist
tradition; Art. 4 was not just about the validity of international law within
domestic law, it was about the principle of legality itself. Democratic
constitutionalism assumes that legal procedures "constitute" the state, that
the existence of constitutional rules allows one to determine which
activities carried out by someone claiming to act in the name of the state
are really actions of state. In this sense, law is not just an element that
binds state actors, law creates state actors. By contrast, the
constitutionalism of the German Empire assumed that the state preexisted
the constitution, that original state power was modified by but not
constituted by constitutional rules. If an individual signs a treaty, that
signature is imputed to the state only if the individual is legally permitted
to sign the treaty. By the same token, violating the terms of a signed treaty
must also raise issues of legality. Did the individual violating the treaty
have the authority as a state actor to do so, or did he not—making him in
essence a criminal? This question was at the heart of one of the few
criminal cases to bring up problems in international law during the
Weimar Republic, the 1931 trial of Carl von Ossietzky for revealing secret
military programs that explicitly violated the provisions of the Versailles
Treaty.
3

Finally, I would like to conclude with the suggestion that Art. 4, far from
being meaningless, raised the key issues of legality and of the relationship
between democracy and the community of nations that would continue to
resonate over the course of the twentieth century. It is not by chance that
Art. 4 was incorporated into the new West German Basic Law of 1949,
nor that its words would make their way into a series of other postauthoritarian, democratic constitutions.
Origins and Original Intent of Article 4
Hugo Preuss, a left-liberal, democrat, German patriot, and Jew, played the central
role in writing the constitution and guiding it through the National Assembly—no easy
task in the fractured German political world after the War.2 Two contexts are especially
important for understanding Preuss's decision, taken in concert with the new interim
leaders of Germany in late 1918 and early 1919, to insert what would become Art. 4 into
the constitutional draft: the Revolution of 1918 and the First World War.
Hugo Preuss initially introduced an article that stated: "The Reich recognizes
valid international law as a binding component of its own law." He would later write that
the article was intended to be part of a comprehensive statement of principle for a new
democratic state, which would proclaim popular sovereignty, the subordination of the
2
See esp. the new, five-volume edition of Preuss's work, with extensive commentary: Gesammelte
Schriften, ed., Detlef Lehnert and Christoph Müller (Tübingen: Mohr Siebeck, 2007ff.); on Preuss's
constitutional theory, Lehnert, Verfassungsdemokratie als Bürgergenossenschaft (Baden-Baden: Nomos,
1998), with further references.
4
Länder to the central state, and entry into the community of nations.3 Preuss, unlike so
many of his fellow liberals, greeted the explicit break with the authoritarian traditions of
German politics. He cited as his model Article VI of the U.S. constitution, which on his
interpretation stated that a democratic republic could enter into the community of nations
as an equal, equally respecting the generally accepted rules of international law that
applied to all nations equally.4
The second context was obvious: the Allies had repeatedly condemned German
violations of international law during the War. Indeed Wilson's defense of U.S. entry into
the war relied on an argument about Germany's alleged qualitatively different approach to
international law. The U.S. argued in particular that German legal approaches denied the
existence of international law and asserted the legally unlimited right of the state to act as
it saw fit, which contributed to the atrocities committed during the war.5 Inserting a
statement about respect for international law was to send a signal to the Allies about a
new Germany; as the noted British international lawyer Lassa Oppenheim remarked,
“Half a confession and half a protest, and withal a promise of better things for the future,
3
Preuss, Reich und Länder. Bruchstücke eines Kommentars zur Verfassung des Deutschen Reiches, ed.,
Gerhard Anschütz (Berlin: Carl Heymann, 1928), 81-82; text of Preuss's draft in Die deutsche
Nationalversammlung, II: 703. See also Ernst Portner, Die Verfassungspolitik der Liberalen 1919. Ein
Beitrag zur Deutung der Weimarer Reichsverfassung (Bonn: Ludwig Röhrscheid, 1973), 73; Frank
Schorkopf, Grundgesetz und Überstaatlichkeit. Konflikt und Harmonie in den auswärtigen Beziehungen
Deutschlands (Tübingen: Mohr Siebeck, 2007), 35-37.
4
Preuss, Reich und Länder, 82-83. In making this argument, Preuss missed the most important reason for
the clause in the U.S. Constitution: to assert the primacy of federal legislation over state legislation, and to
assert the validity of treaties for states. See explicitly on this score Publius [James Madison], The Federalist
XLII and XLIV, in The Debate on the Constitution. Federalism and Antifederalist Speeches, Articles, and
Letters During the Struggle over Ratification (New York: Literary Classics of the United States, Inc.,
1993), II: 63-70, 99; Schorkopf, Grundgesetz und Überstaatlichkeit, 41-42, and 46 on the shift in AngloAmerican law against that very doctrine in the 1920s.
5
These arguments, including both examples of German doctrines of international law and documentation
of German violations of international law, in James Brown Scott, A Survey of International Relations
between the United States and Germany, August 1, 1914-April 6, 1917, Based on Official Documents
(New York: Oxford University Press, 1917); therein, see Wilson's criticism of Germany's breach of
international law in its use of unrestricted submarine warfare, which he connects as well to the rule of
Germany by a narrow clique and its lack of free public discussion, xiii-xxi.
5
[Art. 4] was obviously inspired by the well-known charges formulated both during the
war and in the treaty of Versailles.”6 Oppenheim's remark is only partially correct.
Arguably for most of the delegates to the National Assembly, there was no confession
involved with the approval of Art. 4, but rather solely a protest that Germany had been
just as loyal to international law as had the other belligerent powers.7 One way or the
other, however, the article was a response to the propaganda campaign of the Allies.
Preuss's original intent was, then, to affirm the insertion of Germany as a
democratic state under the rule of law into the community of nations: Art. 4 was to
function both as propaganda to the outside world and as a tool against the old order
within. Over the next months, however, the article changed significantly. The original
wording, with its reference to "valid international law," was replaced by the phrase
"generally accepted rules of international law." The latter term seemed to exclude treaties
among particular nations, by definition particular contracts rather than general rules.
Indeed, the committee writing the constitution sought to limit Art. 4's application as much
as possible, and to reduce a question of general principle to one of limited legal
technique.
Within the committee of the National Assembly charged with working out a
constitution, opposition to the constitutional article appeared immediately.
Representatives of the German People's Party (DVP) and Nationalists (DNVP)
condemned what they saw as an attempt to put Germany permanently under the rule of an
International Law: A Treatise, 3rd ed., 14, cited in Ruth D. Masters, “The Relation of International Law to
the Law of Germany, Political Science Quarterly 45 (1930), 383.
7
See esp. Preuss's argument in Bericht und Protokolle des achten Ausschusses über den Entwurf einer
Verfassung des deutschen Reiches (Berlin: Heymann, 1920), 32, hereafter cited as Verfassungsausschuss;
see the complaint that a confession was implied by Karl Rudolf Heinze, in Die deutsche
Nationalversammlung im Jahre 1919 in ihrer Arbeit für den Aufbau des neuen deutschen Volksstaates, ed.,
Eduard Heilfron (Berlin: Norddeutsche, n.d.), II: 990.
6
6
international coalition. They feared that now an ill-defined Völkerrecht, which they
viewed as the imposed wishes of the wartime enemies, would destroy German
sovereignty; Gustav Stresemann referred to it as a "noose around the neck" of Germany.8
At the same time, the noted civil servant Clemens von Delbrück (DNVP) denied that
"generally recognized rules of international law" existed in the first place; there was no
such thing as international law, he argued, just international "conscience" (Gesinnung).9
Karl Rudolf Heintze (DVP) brought up the difficult question of what would count as
"generally recognized rules": would that language include only universally accepted rules
of international law, or would it include also general treaties and agreements, such as
those of the Hague Convention on warfare (which the German military had consciously
and repeatedly violated during the War)?10 The committee initially rejected Preuss's
article, altering the wording to eliminate any reading that could put international law
before domestic law. It only returned to the original wording after representatives from
the Foreign Office and the Ministry of Justice assured the committee that the effect of the
rule would be minimal, that the only rules that were "generally accepted" would be those
agreed to by Germany, and that the political value of the statement—which was being
drafted several months before the Versailles Treaty was completed and made public—
outweighed any legal concerns.11 The article, the government essentially assured the
committee members, would have no effect domestically; it would at most establish a rule
8
See the comments by Wilhelm Kahl (DVP), Verfassungsausschuss, 31; Stresemann in Die Deutsche
Nationalversammlung, 1224.
9
Delbrück, in Verfassungsausschuss, 31.
10
Heintze, in Verfassungsausschuss, 32.
11
Comments by Ernst von Simson of the Auswärtiges Amt and Erich Zweigert, a privy councilor from the
Justizamt, in Verfassungsausschuss, 406.
7
of interpretation that was already in place in German courts, while it would placate
international critics.12
By the time the article made its way to the National Assembly, it had ceased to be
very controversial. Representatives of the German People's Party (DVP) and the
Nationalists (DNVP), who were former National Liberals and Conservatives attached to
the old order, made a point of defending the sacred German state against foreign
influence, but their opposition had no effect on the article's final version.13 Notably all the
major issues for the German (and indeed global) discussion of international law before
1914 reappeared in the debates on the article. First, Art. 4 posed the question of how a
state's own law and international law related: if international law was made by a
community of nations and the state was part of that community, then was the state
subordinate to the community? Or did international law, which lacked a clear "universal
executive," also require universal consent to exist? In other words, was the notion of
"recognition" in the term "generally recognized rules" one that implied the necessary
recognition of a rule by a state if that rule was to apply to the state, as the Foreign Office
had proposed? If that were the case, then was international law law—or anarchy? The
revision of the article sought to neutralize its legal significance; its political significance,
however, remained, at least on a theoretical level.
The Theory of International Law in the Empire and in the Republic
12
Kahl summarized the discussion, which amounted to a denial of much of any legal effect of the article, in
Die deutsche Nationalversammlung, V: 2949-50; Schorkopf, Grundgesetz und Überstaatlichkeit, 45.
13
By the time of the final reading, there were no more comments on the article in Die deutsche
Nationalversammlung.
8
As in all the major nations of the pre-War world, German legal thinkers worked
with many different conceptions of international law. A few argued that something like a
general international law was increasingly dominating individual states, and advocated
something like institutions of world governance.14 The dominant position, however, was
represented by Adolf Lasson in the early years of unified Germany, by Phillip and Albert
Zorn, and by Erich Kaufmann, who argued that international law was the expression of
state sovereignty and was therefore revocable by the sovereign will of the state.15 While
only Lasson went so far as to deny the existence of international law entirely, all agreed
that no treaty, should continue to exist if conditions changed—indeed, if the interests of
the state changed. The doctrine of rebus sic stantibus came together with a conception of
reason of state that held that a state could never will conditions that endangered its own
survival; the imperative of the life of the state could sweep aside any given international
law.16 What might be termed the middle party sought to combine a role for international
law with a doctrine of the state's will, in recognition of the empirical fact that
international law did in fact play an ever-growing role in a globally interconnected world.
Heinrich Triepel, in the most important German work on international law of the Empire,
argued that international law existed insofar as the state engaged in a conscious
14
See esp. Walther Schücking, Die Organisation der Welt (Leipzig: Kröner, 1909), and in general Roger
Chickering, Imperial Germany and a World without War: The Peace Movement and German Society,
1892-1914 (Princeton: Princeton University Press, 1975).
15
The classic works: Adolf Lasson, Princip und Zukunft des Völkerrechts (Berlin: Wilhelm Hetz, 1871),
22, 26, 28-29, 35-36, 45, 48, 51, 53, 61, 65; more differentiated, Erich Kaufmann, Das Wesen des
Völkerrechts und die Clausula rebus sic stantibus (Tübingen: Mohr, 1911), 7-12, whose non-positivist
argument, however, is that international law does exist as a kind of unenforced common law of nations
always conditioned by the spoken or unspoken clausula rebus sic stantibus. In general on international law
before 1914, see Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International
Law 1870-1960 (New York: Cambridge University Press, 2002), 179-265; Ingo Hueck, "Peace, Security
and International Organisations: The German International Lawyers and the Hague Conferences," in
Randall Lesaffer, ed., Peace Treaties and International Law in European History from the Late Middle
Ages to World War One (New York: Cambridge University Press, 2004), 254-69.
16
Kaufmann, Das Wesen des Völkerrechts, 126.
9
"reception" of its rules, i.e. "transformed" international law into domestic law. In Georg
Jellinek's classic formulation, the state's will was theoretically unconstrained, but for
reasons rooted in empirical reality it limited itself by law (and in theory could remove
these restraints at any time).17 The group around Zorn and the group around Jellinek both
held that the foundation of modern law was state sovereignty; they rejected the notion
that some higher, natural law stood above the state, considering such notions quasitheological, metaphysical, and out of tune with the positivistic spirit of the times.18
The doctrine of state sovereignty was difficult to maintain in the realm of real
legal affairs, which helps to explain Jellinek's and others' attempts to supplement formal
legal analysis with sociological observation.19 The courts, according to Triepel, were
subordinate to the sovereign, and only the sovereign state could "transform" international
law into state law—a prerequisite for its legal validity. But in fact, international law
played an ever-growing role in German domestic law before 1914. The German judiciary,
in fact, made regular use of international law to fill in gaps in domestic law, especially in
the sphere of private law. In that age of globalization, contracts were international, and
both the number of contracts and the challenges of dynamic technological development
made it necessary for courts to fill gaps left by absent legislation.20 Meanwhile, the
17
Jellinek, Allgemeine Staatslehre, 2nd ed. (Berlin: Häring, 1905), 466-70, 475-82; Triepel's notion of
"transformation" clearly implied the doctrine of a state's self-binding: Völkerrecht und Landesrecht
(Leipzig: Hirschfeld, 1899), 169-210.
18
The standard polemic against natural law to be found in Bergbohm, Jurisprudenz und Rechtsphilosophie.
Kritische Abhandlungen (Leipzig: Duncker und Humblot, 1892), explicit statement that all international
law is based on the fiction that there is such a thing as positive law above the state at 453 n.33; see also
Lasson, Princip und Zukunft des Völkerrechts, 15, 18-20, 27-28, relating natural law to "theocracy" and
"ultramontanism"; Kaufmann, Das Wesen des Völkerrechts, 134-36, on the end of Church authority ("eine
pathologische Erscheinung") and the rise of modern sovereign nation-states. Triepel's position was more
complex, insofar as he both recognized the objective existence of a body of international law and affirmed
state sovereignty, in the end produced an account of two parallel legal systems.
19
On the theory of the state as an entity with two sides, one legal and one factual, see esp. Jellinek,
Allgemeine Staatslehre, 9-13.
20
See esp. Masters, "The Relation of International law to the Law of Germany," 363-70.
10
German tradition of legal thinking remained abstract and often divorced from actual
judicial decisions, which allowed theorists to neglect what we might call, invoking
Jellinek's famous phrase in a different context, the “normative power of the factual.”21
Defeat in the First World War brought with it the realization that the German state
was in fact not free to do what it wanted. Many German lawyers reacted strongly to the
terms of the Versailles Treaty, especially the Allies' insistence that Germany alone should
accept responsibility for the war, and that is should give up territories and accept
economic and military conditions. The Allies seemed to take little account of the
transition from monarchism to democracy.22 Some Germans condemned the peace as
unprecedented, except for perhaps the Romans' peace with Carthage; others claimed that
the Allies had violated a basic tenet of international law by forcing a treaty on a defeated
state.23 This last argument, it must be said, reveals a surprisingly selective interpretation
of the nature of contracts among states after a war, carefully ignoring Lasson's Hobbesian
interpretation of treaties as the expression of the relative power of the contracting
partners, the 1871 Treaty of Frankfurt, which took territory from France and imposed
high reparations, and the even more radical Treaty of Brest-Litovsk. Pre-war conservative
accounts of international treaty-making had excluded consideration of justice and
morality—in large part because they assumed that German power would always prevail.
21
Triepel argued that courts engaged in a "fictive transformation" of international law into domestic law, as
though the sovereign state had decided: Triepel, Völkerrecht und Landesrecht, 392-97, discussed in Alfred
Verdross, Die völkerrechtliche Kriegshandlung und der Strafanspruch der Staaten (Berlin: Engelmann,
1920), 38.
22
Of the many works on the Treaty, see esp. Manfred F. Boemeke, Gerald D. Feldman, and Elisabeth
Glaser, ed., The Treaty of Versailles: A Reassessment after 75 Years (New York: Cambridge University
Press, 1998); Koskenniemi, Gentle Civilizer, 236-38.
23
See e.g. Kahrstedt, "Die staatsrechtliche Stellung Deutschlands nach dem Entente-Frieden," Deutsche
Juristen-Zeitung 24 (1919), 588-90, comparing Germany and Carthage; Hermann Jahrreiss, Das Problem
der rechtlichen Liquidation des Weltkriegs für Deutschland: Ein Beitrag zur Grundlehre vom Recht und zur
Völkerrechtstheorie (Leipzig: Weicher, 1924); and the more respectable Julius Hatschek, An Outline of
International Law, tr., C. A. W. Manning (London: Bell and Sons, 1930), esp. 92-94.
11
Conservative jurists now rediscovered natural law when it served German interests.
Natural law served as a weapon of the state in international law.
The reception of natural law among German international lawyers in the wake of
Versailles did not necessarily mean that they developed new doctrines of how
international law related to domestic law. A glance at the leading handbooks of
constitutional law shows that their general sense was that Art. 4 would have little or no
practical effect on law. Anschütz's handbook, which went through fourteen editions
during the Weimar Republic, arguably reflects the standard doctrine of the time. On his
account, Art. 4 made very little difference. It provided for the transformation of the
general rules of international law into domestic law by the courts, but Anschütz remained
vague as to how that would actually work. He also made clear that "general" referred to
those rules that were accepted by the sovereign state. Germany remained autonomous
and, insofar as international law played a role in it, it did so only with the explicit or
implicit approval of the "sovereign," i.e. the political system of the Republic. Simple
legislation could rescind any particular rule of international law; the sovereign state was
free to bind or unbind itself.24 Anschütz's student Fritz Mieck made this argument even
more strongly at the end of the Republic. Mieck argued that Art. 4 changed nothing in
practice. He also asserted that while a rule need not be accepted by all states to be
considered "general," it did require acceptance by all important states like Germany. If
Germany did not approve of a rule, then, it could not be "general" in the first place. In the
end, either an explicit or implicit act was necessary to transform an international rule into
24
Anschütz, Die Verfassung des Deutschen Reichs, 14th ed., 60-70.
12
an internally binding rule. The norms of international law in themselves, Mieck held,
bound only the states, not individuals or individual officials.25
Friedrich Giese's commentary took issue with Anschütz. Giese claimed that the
article was much more than a "superficial political confession without dignity"; it served
to make the "generally accepted rules" of international law immediately valid for citizens
and officials, without any "transformation" of these rules into domestic law by the state.
In other words, the transformation clause posited by Triepel and Jellinek was no longer
necessary; generally recognized rules of international law were automatically positive
law, and did not have to be justified through complex legal fictions.26 That said, however,
Giese offered little concrete detail about how the article really changed the legal system.
After all, the rules were "general" if accepted by Germany, they were general rules rather
than specific treaties, and where these rules came into conflict with German statutes, the
rules gave way. All they seemed to do was to reaffirm existing practice—even in the
writings of a theorist like Giese, who was sympathetic to the new rule. Julius Hatschek
was likewise deeply committed to recognizing the validity of international legal norms as
a separate and objective legal system, yet did not argue that Art. 4 allowed the general
rules of international law to overrule state decisions. Instead, he viewed the article as a
reference to the quasi-organic growth of generally accepted rules of international
behavior, such as the presence of a head of state to sign treaties, recognition of consular
rights, special protections for foreigners, and no extradition for political crimes. For
25
Mieck, Die Anerkennung der Regeln des Völkerrechts im Sinne des Artikel 4 der Reichsverfassung.
Inaugural-Dissertation zur Erlangung der Doktorwürde der Hohen Juristischen Fakultät der RuprechtKarls-Universität zu Heidelberg (Heidelberg: publisher unknown, 1928).
26
Giese, Die Verfassung des Deutschen Reiches, 8th ed. (Berlin: Heymann, 1931), 46-48.
13
Hatschek, international law involved the coordination of states, not their subordination
under a higher power.27
The abstract nature of German constitutional jurisprudence worked to limit the
effects of Art. 4, because it closed down discussion of possible applications of the law in
favor of proclaiming the abstract meaning of a legal norm. From a U.S. point of view, the
German discussions about constitutional law are remarkable for their abstraction,
including the avoidance of actual cases where constitutional articles became relevant. So
did the article make a difference at all, or was it merely a waste of ink? It was important
in two important respects. First, Art. 4 put the problem of how the state related to
international law front and center in theoretical discussions; it served as the way into a
generalized criticism of the notion of the state's will that would point toward a different
conception of international politics, the topic of the next section. Second, Art. 4 was one
of several articles in the new constitution that posed the question of how state and law
related in judicial practice, a matter discussed in the final section of this paper.
The Challenge of International Law to the Doctrine of the State's Will
Discussion of the state's will circled around the so-called Pure Theory of Law,
associated with Hans Kelsen. The most important intervention in legal theory between
1910 and 1945, the Pure Theory of Law moved from a neo-Kantian critique of the
foundations of legal thinking to a fundamental criticism of generally accepted notions of
sovereignty, legal order, and normativity. Kelsen focused on the problematic relationship
between power, law, and morality, insisting that the three categories at no point
27
Hatschek, An Outline of International Law, 15.
14
necessarily coincided. The theory did not serve a specific partisan aim: as Kelsen would
note in the final years of the Weimar Republic, scholars of "almost all political
tendencies" were among his followers.28 It was not, as its critics on the right (and left)
alleged, the ideology of democratic liberalism, except perhaps in that it made the
necessity of political judgments clear, and debunked reference to mythical concepts like
the "will of the state" or the "people" as justifications for power.
A full restatement of Kelsen's theoretical position is impossible in this short
space.29 What mattered most in the discussions of the 1920s is that Kelsen's theory drew
attention to the logical process of legal thinking. A legal scholar usually asks a very
specific question, such as whether a specific person is authorized by law to undertake
some kind of action. The act of authorization comes from some higher authority: a city
council, for example, may authorize a person designated the dog catcher to catch stray
dogs.30 Such authorizations usually involve discretion: the definition of "stray" cannot
encompass all circumstances, and the dog catcher must exercise judgment in carrying out
his or her duty. The legal scholar, in a contested case, would go back further: what legal
entity authorizes the city council to grant this authority? Whence does the authority of
that legal entity derive? These are the questions that drive legal disputes; at issue is
legally authorized authority and its limits. And the legal scholar must ultimately assume
some originary norm (Ursprungsnorm) from which the authority arises. This has to be an
assumption, because any authorizing norm derives from some authority, and especially in
28
Kelsen, "Juristischer Formalismus und reine Rechtslehre," Juristische Wochenschrift 58 (1929), 1725.
Lars Vinx, Hans Kelsen's Pure Theory of Law: Legality and Legitimacy (Oxford: Oxford University
Press, 2007), with an excellent bibliography; "The European Tradition in International Law," special issue
of the European Journal of International Law 9:2 (1998); Stanley L. Paulson and Michael Stolleis, Hans
Kelsen: Staatsrechtslehrer und Rechtstheoretiker des 20. Jahrhunderts (Tübingen: Mohr Siebeck, 2005).
30
On Befugnis rather than Zwang: Probleme der Souveränität, 13-14, 70 n. 1.
29
15
the case of foundational law, the law that derives from an authority is assumed to create
that authority in the first place. This is an obvious paradox, because the authorizing norm
may be based on political considerations, moral considerations, or social considerations,
yet none of these are sufficient in themselves to ground a specifically legal structure,
which for Kelsen is not reducible to power, morality, or social facts.31 The legal scholar
has to engage in this logical exercise because his or her job is precisely to conceptualize
law as a coherent entity and provide answers about what is and what is not actually law.
The Pure Theory of Law affords not just insights into the structure of normative orders
but also insights into the way law claims, at least, to function as a coherent discipline
with its own set of internal laws and principles. In Weberian or Luhmannian terms,
Kelsen's theory investigates law as a system—law's Eigengesetzlichkeit.
As noted above, the dominant approach to public law in the German Empire took
as its point of departure the will of the state. In Jellinek's terms, the state engaged in a
process of self-binding in order to create law. In Triepel's terms, it made an active
decision to "transform" international law into state law in order to give it validity. The
will of the state founded the system; international law was therefore an effect of the will
of the state (or several states). In a sense, Jellinek's and Triepel's methods of analysis
followed the same path as Kelsen's: to move back logically from existing norms to
determine the "source" of law. Where they differed from Kelsen was in their assumption
that the state itself constituted an original, "causal" source of law, rather than a primal
point to which legal origins were imputed, an imputation that was based on a prior
assumption. The assumption that the state was a real, living entity was expressed clearly
by Erich Kaufmann, who referred to it, citing Otto von Gierke, as the "corporeal form of
31
Problem der Souveränität, 14-16.
16
a spiritual national community" (leibliche Gestalt einer geistigen Volksgemeinschaft),
whose "social value" was the "victorious war."32 It was relatively easy for Kelsen and his
school to tear down the notion that the state as legal actor was the same as the state as
material power. The former was theoretically unlimited and "sovereign," while the latter
was limited in its actions and finite, always in a world of unending causation.33 These
were in fact two different entities, Kelsen maintained. And even more important, the
"will of the state" in legal terms could not logically be derived from a state that was itself
constituted by law.34 The "will of the state" in Gierke's or Jellinek's sense was a myth.
Kelsen's student Alfred Verdross argued that Kelsen's method forced scholars to
reconsider the very basis of the legal order. Factually, he argued, the legal order
originated elsewhere: in international law. Verdross offered as proof the common-law
doctrine of international law that even in the event of a revolution, a new state was
assumed to maintain the international agreements and obligations entered into by the old
one. This assumption guided other state actors in international relations, and even the
Soviet Union, he argued, was finding itself forced to follow this rule.35 Contemporaries
already pointed out how thin this argument was, given the far greater role of actors
legally empowered by individual states.36 But the example of the Weimar Constitution
reveals to what extent new constitutions found themselves constrained by international
organizations: the Allies themselves demanded, as part of the Versailles Treaty, that
32
Kaufmann, Das Wesen des Völkerrechts, 139, 146. Kaufmann's statement reflects his anti-positivist,
"organic" approach to law, influenced by Otto von Gierke; there was a notable convergence between
organic and positivist theories of law with regard to the state.
33
See esp. Hauptprobleme der Staatsrechtslehre entwickelt aus der Lehre vom Rechtssatz, 2nd ed.
(Tübingen: Mohr, 1923), 429-33.
34
Or rather the imputation of jurisdication: Problem der Souveränität, 16-17.
35
Verdross, Die Einheit des rechtlichen Weltbildes auf Grundlage der Völkerrechtsverfassung (Tübingen:
Mohr Siebeck, 1923), 157-58.
36
See esp. Leo Wittmayer, "Völkerrecht und Staatsrecht. Ein kritischer Beitrag," Zeitschrift für
Völkerrecht 13 (1926), 5-7.
17
Germany amend Art. 178 to exclude the possibility of unifying Austria with Germany.37
Indeed, modern constitutions normally come into being in an international context; they
create institutions that are recognizable to other international actors, and officially
recognized as such. From an empirical perspective, Verdross argued, the sovereign "will"
underlying the constitution is a creation of the constitution itself, which gains its
recognition from the international community.
Verdross declared the state a mere fiction, an ideology.38 Verdross made an even
stronger argument that deviated from Kelsen's: that one could discover the source of law,
and not merely assume it, in the body of moral and political precepts uncovered by
scholastics like Suarez and early modern international lawyers like Grotius.39 In other
words, he claimed to (re)discover a higher law of nations. For Verdross, Art. 4 of the
Weimar Constitution, then, recognized the fact of a higher order from which state law
was derived; it did not create any new law. After all, he claimed, citing his own
experience with Austro-Hungarian military courts during World War One, German and
Austrian courts had already recognized international law within their own decisions; all
that Art. 4 (and Art. 9 of the Austrian Federal Constitution) did was to recognize existing
fact and state that citizen and state office were immediately bound by international law.
Since some actor had to be bound for the law to have an effect at all, since the state was a
mythical being, Art. 4 merely stated the truth: international law stood above state law.40
The reverse position was also possible from within a legal position that argued
against methodological dualism: Max Wenzel, not in Kelsen's school but coming from a
37
Mattern, Constitutional Jurisprudence of the German Republic, 640-41.
Verdross, Das Einheit des rechtlichen Weltbildes, 1: the state is a "Fabelwesen."
39
Explicitly in Das Einheit des rechtlichen Weltbildes, 39-47.
40
Verdross, "Staatliches Recht und Völkerrecht: Die Stellung der neuen deutschen und österreichischen
Verfassungen zum Völkerrecht," Schweizerische Juristen-Zeitung 17 (1920-21), 246-47.
38
18
similar theoretical position, rejected Verdross's arguments and argued that all law existed
insofar as it could be imputed to the state. For him, Art. 4 changed nothing about the
basic nature of law.41
Kelsen took a different tack. His theory did not admit of an ultimate source of
law, nor could it: that ultimate presupposition was, as noted, a legal-logical necessity
founded on a series of extra-legal considerations.42 A legal scholar had to make an
"epistemological-theoretical hypothesis" that the legal order originated from either the
sovereign state, which was the source of international law, or from international law,
which provided the legal categories for recognizing the "state" and authorizing its actions
(including war).43 The conclusion was more disturbing than Verdross's. Now the legal
scholar was faced with a choice (Wahlmöglichkeit) between two claims that seemed to
exclude each other. And the claims were neither fully rational nor innocent. As Kelsen
argued, since sovereignty in the sense of absolute and final power did not and could not
exist in the world, its existence outside of law could only be located, if anywhere, in a
psychological condition: sovereignty was the product of mass psychology.44 (Coming
from a different theoretical position, Preuss made a similar argument: the positivist
account of the will of the state amounted to a natural law that assumed the sovereignty of
the ruler [Herrschersouveränität]. Preuss wrote that just as democratization required the
state to recognize pluralism and the rule of law within, it also required a new conception
41
Wenzel, Der Begriff des Gesetzes. Zugleich eine Untersuchung zum Begriff des Staates und Problem des
Völkerrechts (Berlin: Dümmler, 1920), 468-84.
42
On the constitution in a "legal-logical" sense, Kelsen, Problem der Souveränität, 32-33, 97-98 n. 1.
43
Ibid., 314-15.
44
Ibid., 15-16,
19
of the state as one among many that had to cooperate.)45 The hypothesis of state
sovereignty, Kelsen claimed, corresponded to the political thought of modern
imperialism; he cited Adolf Lasson, who had denied the existence of international law in
neo-Hegelian fashion, while also asserting the natural tendency of states to expand. And
against that "subjectivist" position he stated an "objectivist" position that saw states—and
their borders—as constituted by international law, which he said corresponded to
pacifism and the call for international governance.46 Kelsen made clear his own
preference for the development of international law beyond its current primitive state,
and for the "radical suppression" of sovereignty—but saw that as an "infinite task," in the
Kantian sense of a universal imperative, rather than a claim about reality.47 By the same
token, Kelsen implied that a position starting from the solipsistic subjectivism of the state
was defensible—although as political assertion rather than as scholarship. The most
disturbing aspect of Kelsen for the statist tradition (left or right) was not his
"cosmopolitanism," but his deep relativism. By exposing the questionable foundations of
jurisprudence, Kelsen promoted a method of legal analysis that forced scholars to make
clear their political or ethical intentions. Even if he agreed with some arguments about
the international order put forward by a pacifist scholar like Hugo Krabbe, for example,
he considered Krabbe's approach unscholarly because ethical aims were blended with
claims to legal science.48
45
Preuss, Reich und Länder, 84-98; see also Stanley Paulson, "Hugo Preuss und Hans Kelsen—
überraschende Parallelen," in Christoph Müller, ed., Gemeinde, Stadt, Staat: Aspekte der
Verfassungstheorie von Hugo Preuss (Baden-Baden: Nomos, 2004), 70-75.
46
Problem der Souveränität, 318-20.
47
Ibid., 320.
48
Ibid., 22-27.
20
Already in the Weimar Republic, Kelsen's method came under fire for its alleged
lack of realism: the state became a construction rather than a real, living will in the world,
law became the product of legal analysis rather than a real force. Scholars obsessed with
a supposed bedrock of the real in the form of the state asserted that a political unity had to
"concretely exist" and that no contract existed without a "real" decision.49 The reference
to crude power, decisions, and the state as an actual thing holds an appeal, certainly, for
those yearning for access to an immediate reality. But precisely in his criticism of
theories that asserted the substantial reality of the state lay Kelsen's realism. Just because
someone named “president” takes an action or makes a decision, there is no reason why
that action should be imputed to the will of the state. The actions of an individual are
transformed into the will of the state if the argument succeeds—and it may well succeed
by way of mass psychology—that that individual is authorized to act in this way in the
name of the state. If, for example, a state actor orders that torture be carried out against
the explicit word of international law, then the question is not whether that act of torture
exists, but whether the state actor was authorized to order it. Perhaps the state actor was
authorized, because the legal scholar assumes that that actor may act to "transform"
international law into state law—and may equally well act to "transform" it into non-state
law. In such a case, one might note, legal construction is what constitutes the state. The
"existence" of the state is not primary, but different constructions of the legal order are.
49
See e.g. Carl Schmitt, Verfassungslehre, 69-75, 363-64, rejecting Verdross's claim that the doctrine that
contracts are binding (pacta sunt servanda) can serve as the presupposition for any international legal
system; only the concrete, real decisions of the "state" can do so. Schmitt's remarks on warfare in The
Concept of the Political are an extrapolation of this anti-legal position, as noted by Andreas Toppe, Militär
und Kriegsvölkerrecht. Rechtsnorm, Fachdiskurs und Kriegspraxis in Deutschland (Munich: Oldenbourg,
2008), 40; see also Christoph Möllers, Staat als Argument (Munich: Beck, 2000), 58-83. Lasson had a
similar position on the state: "Es giebt kein realeres Wesen und welches mehr auf das Reale hingewiesen
wäre, als der Staat," Princip und Zukunft des Völkerrechts, 92.
21
To summarize, then: rules served to "construct" the will of the state, according to
Kelsen's theory. The office-holder who commands torture is either in this action a
criminal and not an office-holder at all, because rules do not permit such a command; or
he or she is an office holder and the rules governing the office permit him or her to
command torture. At issue is how to interpret the rules that construct an office—and who
should do that interpreting. The debate over who interprets, i.e. judicial review, was a
lively one in the Weimar Republic. Despite questionable arguments to the contrary, there
was—and is—no a priori reason to assume that the person who issues the commands
should be the one to determine whether those commands fit within the set of rules that
constitute the will of the state. Perhaps an independent court, not an actor per se, should
have the task of evaluating actions for their correspondence to law. Nothing at all forbids
a priori the creation of a constitutional court. But by the same token, nothing requires
legal disputes to be resolved by a court.50
The German High Court (Reichsgericht) and Article 4
At issue was how law related to power. Kelsen's theory offered no a priori
argument against any specific political system; the Pure Theory of Law made no essential
distinction between an organized robber band and a state. It held that political power
never merely existed, but was always the result of an intellectual construction, a
conception of normative order. Moreover, it held that the method of arriving at a
construction that connected (normative) law with (causal) reality was necessarily
"impure," in the sense that neither causal reality nor normative conception led to clear
50
See especially Kelsen, "Wer soll der Hüter der Verfassung sein?" Die Justiz 6 (1931-32), 576-627
22
conclusions about what ought to be done.51 Hard cases are hard because they require a
legal actor to interpret and apply law in an active manner; interpretation was a necessary
part of Kelsen's theory of the judiciary.
What if, for example, a private individual exposed in the press a violation of
international law by a person or group authorized to act by the German state? This case
could show how constitutional law and international law interrelated, the laws founding
the state and the laws founding the international order, related. The case in question, the
Weltbühne trial of 1931, concerned the publication of an article that revealed the secret
development of an air force, in violation of the terms of the Versailles Treaty.52 The
article's author, Walter Kreiser, and the Weltbühne's publisher, the renowned pacifist Carl
von Ossietzky, were charged with and convicted of treason and the betrayal of military
secrets.53 They were sentenced to 18 months in prison.
There were actually two dimensions to the case: the German state's relationship to
the Versailles treaty and the defendants' publication of military secrets. The German high
court did not consider the former, choosing to focus exclusively on the latter. I consider
both aspects in the following discussion.
The German government clearly violated the terms of the Versailles Treaty in this
instance. Germany had signed the Versailles Treaty under duress, of course. But then
again, power differences enter into most treaties, and indeed are characteristic of contract
51
On Kelsen's theory of legal interpretation and application, see esp. Introduction to the Problems of Legal
Theory, tr. By Bonnie Litschewski Paulson and Stanley L. Paulson (Oxford: Clarendon Press, 1992), 7784.
52
Versailles Treaty, Par. 198-202.
53
In general on the case, see Ingo Müller, "Das berühmte Fall Ossietzky vom Jahre 1930 könnte sich
wiederholen…," in Hans-Ernst Böttcher, ed., Recht Justiz Kritik: Festschrift für Richard Schmid zum 85.
Geburtstag (Baden-Baden: Nomos, 1985), 297-326; Elke Suhr, Carl von Ossietzky: Eine Biographie
(Cologne: Kiepenheuer und Witsch, 1988), 162-67; and "Weltbühne-Prozess," at
http://de.wikipedia.org/wiki/Weltb%C3%BChne-Prozess, accessed on August 19, 2008.
23
in general, as Adolf Lasson (and indeed Thomas Hobbes) had noted long before.
Germany had not repudiated the treaty (which, according to most interpretations of
international law, it could well do under changed circumstances: the principle that treaties
are binding, pacta sunt servanda, was always accompanied by the principle that changes
in reality could lead to a treaty's substantial renegotiation or end, rebus sic stantibus).54
No German government had stated publicly that it would ignore part or all of the
Versailles Treaty, and the Locarno Treaty presumed that Germany would continue to
obey Versailles. The President (and with him the government) had the right to negotiate
treaties, certainly (Art. 45). But that article went on to state that treaties that involved
areas under the jurisdiction of the Reichstag required Reichstag approval, and military
budgets were definitely part of that jurisdiction; presumably this was an expenditure that
constituted a probable violation of a treaty, and thus required Reichstag approval on more
than one ground. Art. 178, par. 2, stated explicitly that "the provisions of the peace treaty
signed on June 28, 1919, in Versailles are not affected by the constitution"; as noted, this
article served in 1919 to halt attempts to annex Austria to Germany. Although legal
scholars disagreed over the relationship between the peace treaty and German
sovereignty, at the least it would seem to limit the actions of the German state with
respect to its provisions.55 The Reichsgericht, in its decision, did not address whether the
54
The question is, of course, under what conditions such a repudiation may occur and which form the
repudiation takes; these two issues are often spelled out within specific treaties or more general
international agreements.
55
Anschütz's commentary interpreted this clause to mean that the provisions of the peace treaty took
precedence over those of the constitution—and then, in a long footnote, suggested that such "precedence"
only meant a limitation to the constitution, a quite ambiguous statement. See Anschütz, Die Verfassung des
Deutschen Reichs, 763, with further literature cited. Fleischmann, "Die völkerrechtliche Stellung des
Reichs und der Länder," 221-24, notes the significant legal problems that would result from simply
assuming the validity of all aspects of the Versailles Treaty by way of Art. 178, most important the way it
would impose upon the entire system of state organization; he states as well that even without Art. 178, Art.
4 would guarantee the effectiveness of the Versailles Treaty in Germany law (222). Stronger statement by
24
government had acted legally in this case at all; it did not even consider the "collision" of
international, constitutional, and criminal law, at least in its written decision.56 At issue
was not the legality of the concealed rearmament, but the way the defendants exposed the
rearmament through the press.57
The defendants were accused of publishing military secrets in violation of both
the general law on espionage and the law on military secrets of 1914. Paragraph 92 of the
Criminal Code was clear on this score: whoever intentionally betrayed military secrets
that would be damaging to the well-being (Wohl) of Germany to a foreign power would
be subject to prison time. "The Law Against the Betrayal of Military Secrets" of June 3,
1914, reiterated the point. Because of the nature of the alleged crime, this trial—like
many others in the Weimar Republic dealing with press revelations of state activities
classified as "espionage"—was secret. The judgment—also kept from the public—
declared the defendants guilty of publishing information about secret military activity
that could be damaging to German military interests. In other words, the court, on the
basis of arguments presented to it by the government itself, concluded that the Weltbühne
article had, indeed, told the truth; its secrecy, according to the government, was in the
interest of the defense of the country, an argument that the court accepted at face value.
The court refused to hear expert witnesses from the defense, who were prepared to argue
Hermann Held, review of Jahrreiss, Völkerbundsmitgliedschaft und Reichsverfassung (Leipzig, 1926), in
Archiv des öffentlichen Rechts 20 (1931), 156.
56
See Ulrich Klug, "Überlegungen zum Versuch einer Wiederaufnahme des Carl von Ossietzky-Prozess
nach 60 Jahren," Festschrift für Günter Spendel zum 70. Geburtstag am 11. Juli 1992 (Berlin: Walter de
Gruyter, 1992), 682-83.
57
The full documentation of the Weltbühne trial was never made public since military secrets were at stake,
and much of it was destroyed during the war; a copy of the decision of the Reichsgericht, however,
survived in the Auswärtiges Amt, Akten der Rechtsabt., Rechtssachen geheim, spec. Kreiser und Ossietzky,
K 2027/K 520 469-97, now available at http://de.wikisource.org/wiki/Reichsgericht_Urteil_WeltbühneProzess; p. 26 states that "Dem eigenen Lande hat jeder Staatsbürger die Treue zu halten; auf Durchführung
der Gesetze kann er nur durch Inanspruchnahme der hierzu berufenen innerstaatlichen Organe hinwirken,
niemals aber durch Mitteilungen an ausländische Regierungen oder deren Organe."
25
that the information provided was in fact well known to experts in aviation; at issue, it
argued, was the relative secrecy of the information, not its absolute secrecy.58 Since the
defendants had intentionally revealed the military secret, and since they had done so by
way of the press, which was read by foreign powers, they were guilty of the crime. 59
Finally, they had violated a basic principle: "Dem eigenen Lande hat jeder Staatsbürger
die Treue zu halten," or every citizen should be loyal to his country; they had crossed the
line from objective criticism to "baiting and betrayal" (Hetze und Verrat). "The criminal
act of the defendants, which has violated their duty of loyalty as citizens, is to be
considered damaging to the state: unconcerned with the interests of their fatherland in a
difficult time and with conscious contempt, they far overstepped the bounds of objective
critique out of a need to create a sensation."60
Although the court had a weakness for the Right, the decision did, in fact, apply
the law of the land, which defined espionage and treason as the court applied those
concepts.61 Certainly the court was not interested in making a point about the importance
of freedom of the press. In any case, that freedom was, as the constitution expressly
stated, still subject to the limits set by general laws.62 Certainly the court deferred to the
58
"Reichsgericht-Urteil," 20-21; this issue reappeared in the 1992 attempt to reverse the decision; Müller
notes that in fact the concept of "relative secrecy" was firmly rooted in precedents from the 1880s: "Der
berühmte Fall Ossietzky," 312. Klug by contrast argues that the judges acted in such a way to negate the
possibility of a fair trial, even by existing legal standards: 681-82.
59
Ibid., 23.
60
Ibid., 28. "Die Straftat der Angeklagten, die ihre Treuepflicht als Staatsbürger verletzt haben, ist als seine
staatsschädliche anzusprechen: Unbekümmert um die Interessen ihres Vaterlandes in schwerer Zeit und
unter deren bewusster Nichtachtung haben sie aus Sensationsbedürfnis das Mass einer sachlichen Kritik
weit überschritten."
61
See however Ingo Müller, "Der berühmte Fall Ossietzky": however, it is indisputable that the concepts of
treason and espionage saw a dramatic expansion in Weimar: see the statistics assembled already in 1926 by
E. J. Gumbel, "Landesverrat, begangen durch die Presse," Die Justiz II (1926-27), 75-92.
62
Art. 118 WRV: "within the limits of general statutes"; Anschütz, Die Verfassung des Deutschen Reichs,
551-55, who argues that "general statute" means a statute with a generally applicable content rather than
one directed against a specific opinion, such as a statute forbidding socialist or atheist literature. A law
against the betrayal of military secrets would certainly seem to be "general" in this sense. "Generality"
26
government's own definition of what constituted information that would represent a
potential danger to the country; the court's refusal to call defense witnesses to show that
the information was in fact not secret was questionable, and formed the basis of the 1992
attempt to revise the earlier judgment.63 The political proclivities of the individual judges
involved in the case reinforced their unwillingness to challenge the military.64 The court
also seems not to have considered that the information provided was, in fact, quite trivial,
as a Social Democratic inquiry presented to the government in 1932 pointed out.65 But
even this refusal to hear defense witnesses fit with the traditional subservient role of the
German judiciary—and the secrecy of the proceedings allowed the judges to avoid
answering these questions.66 The court's timidity reflected its own weak tradition of
constitutional review.
The problem of how international law and domestic law related is a separate
question. It was possible that one could blow the whistle on a violation of international
law, and in so doing might reveal military secrets, i.e. commit treason or espionage. But
absent the kind of whistleblower law that was finally approved in the Federal Republic,
only a strong interpretation of the law—which was not to be expected from the courts
during the Weimar Republic—could have led to a different judgment.67 Would it have
been possible to argue that Art. 4, even in the weak sense developed in the Weimar
could also, of course, have a substantive meaning, as became clear in the debates on the topic during the
Weimar Republic.
63
BGH 3 StB 6/92.
64
See Ivo Heiliger, "Ein zweiter Fehlurteil gegen Ossietzky," Kritische Justiz (1991), 498-99.
65
"Zum Weltbühnenprozess," Die Justiz 7 (1931-32), 198-99.
66
On the willingness of the judiciary in the Weimar Republic to accept the word of the military on what
should constitute a military secret, see Gumbel, "Landesverrat," 81-85.
67
An attempt to create such a protection was submitted by the Social Democrats in 1925 as an amendment
to Section 92 of the Criminal Code, and failed to be approved: Gumbel, "Landesverrat," 87. The presentday Section 93, Par. 2, of the Criminal Code states: "Facts which constitute violations of the free,
democratic constitutional order or of international arms control agreements by virtue of having been kept
secret from the treaty partners of the Federal Republic of Germany, are not state secrets."
27
Republic, offered a defense? As noted above, the notion that treaties are binding was at
least potentially to be construed as a general rule of international law, and itself not a
treaty; such a rule would make it necessary for a German government that acted in
violation of a treaty to state clearly that it was doing so, i.e. to declare that the treaty was
invalid. Actions taken outside of that framework would thus not be actions imputed to the
state, but rather illegal actions of private individuals. And from another perspective, at
issue was the principle of legality per se—a principle that Art. 4 merely restated. Treaties
involving budgetary matters, for example, fell within the competence of the Reichstag,
and thus had statutory status; if the government took secret action against parts of such a
treaty, was it not breaking the generally recognized principle that treaties are binding—
unless expressly abrogated?68
This would have been a difficult argument to make, and probably the court would
not have dared to make it, barring some kind of self-executing clause directly applicable
to the matter.69 The court apparently did consider the question of whether the activities
violated the Versailles Treaty and the Paris Accord on Air Travel, but set that question
68
This the argument presented in 1992: BGH 3 StB 6/92, par. 8; see also Klug, "Überlegungen," 682;
Lothar Schücking, "Landesverrat und Friedensvertrag," Die Justiz 3 (1927-28), 509-16 (commenting on
RGSt. 60, 62, discussed below). The issue of the binding nature of contracts remains complex; a
conservative like Erich Kaufmann took the position in 1911 that a treaty not explicitly repudiated by a state
was still binding (Das Wesen des Völkerrechts, 222); the Basic Law of 1949, meanwhile, which sought to
broke with German statism, did not consider the doctrine of pacta sunt servanda to determine precisely how
treaties would be enforced: Rudolf Geiger, Grundgesetz und Völkerrecht. Die Bezüge des Staatsrechts zum
Völkerrecht und Europarecht, 2nd ed. (Munich: Beck, 1994), 171; "political treaties," however, did take the
form of statutes according to Art. 59 GG (ibid., 134-35).
69
It is also quite possible that Art. 4 would have been unnecessary to the logic. After all, if treaties have the
same status as statutes in domestic law, why should they be afforded a lower status in actual administrative
practice? Art. 4 does, however, highlight the collisions of law that the court would have to consider if it
were to take law seriously as constitutive of state will: see Johannes Mattern, The Constitutional
Jurisprudence of the German National Republic (Baltimore: Johns Hopkins Press, 1928), 643-47; see also
Masters, "The Relation of International Law to the Law of Germany," 390-92.
28
aside in the face of the state of emergency the state claimed to be in.70 The wording they
chose in their judgment shows the political world in which they were operating: they
assumed a prior loyalty of the citizen to the state, and defined the latter implicitly as the
executive that made decisions on military matters, not as the law that constructed the
power of the state. Note the phrases in the decision cited above: "unconcerned about the
interest of the fatherland"; "damaging to the state"; "sensationalism"; "betrayal." A
political, rather than formal-legal, logic was at work here.
That logic was already present in an earlier, much-cited case of the German High
Court of March 14, 1928, which served as a precedent for the 1931 decision. The journal
Das andere Deutschland had published reports of connections between the army and
right-wing militia members persisting after the crisis of 1923. Such connections clearly
violated the terms of the Versailles Treaty and potentially indicated financial actions by
the government not authorized by the Reichstag. The defendants invoked the freedom of
the press (Art. 118) and Art. 4 in their defense. The court argued that the articles were
irrelevant to the case. Press freedoms were subject to limits set by general laws, including
Section 92 of the Criminal Code; international law, the court argued, by definition could
not apply to individuals, but only to states, so the requirement of the Versailles Treaty
that the signers engage in a "good faith" effort to uphold the treaty did not apply to
individuals (even leaders of the state).71 Most important, the court argued that citizens
had the duty to be loyal to the state; this was their "highest commandment." Thus
publishing secret information and thereby making it available to "enemy alliances" was
70
According to Müller's citation of the defense lawyer Alfred Apfel's notes on the oral proceedings, cited in
"Der berühmte Fall Ossietzky," 315.
71
RGSt. 62, 65-72; see also Ingo Müller and Gerhard Jungfer, "70 Jahre Weltbühnen-Urteil," Neue
Juristische Wochenschrift (2001), 3462.
29
illegal, not just on positive legal grounds but also by a kind of natural law. Again, the
reference to a quasi-natural entity, the state; again, the deferral to the government
regarding what constituted a secret. In one of the most important summaries of the law of
espionage of the day, Hellmuth von Weber summarized the state's argument in what was
probably the dominant interpretation of the day: the state defined—according to its
subjective interpretation—what constituted a secret (thereby sidelining judicial review of
content); the state itself was a real organization, and as such stood above the individual,
and no citizen could have the right to fight governmental measures that the state viewed
as damaging with the means of treason. The state, he concluded, was not to be
conceptualized as a realization of the legal order, but rather as something apart from the
legal order: "Only on the "level of being" (Seinsebene) is the state vulnerable and in need
of protection. Betrayal of secrets [Verrat] concerns the state with respect to the power it
exercises as a social organization. The state, in other words, was a social entity in the real
world, not merely in law, and "for its continued existence it is irrelevant whether its
actions contradict a legal norm or not."72 Von Weber's essay concluded with a statement
that directly contradicted Art. 4, however conceived, on political grounds: "A norm of
international law that would suspend the subject's duty to be loyal, insofar as that duty
concerns situations contrary to international law, does not exist."73 Well before the Nazis
came to power, jurists had developed the notion of a state of emergency that allowed the
state—conceptualized as an existential being prior to the law rather than as constituted by
72
Von Weber, "Die Verbrechen gegen den Staat in der Rechtsprechung des Reichsgerichts," in Das
Reichsgerichtspraxis im deutschen Rechtsleben. Festgabe der juristischen Fakultäten zum 50jährigen
Bestehen des Reichsgerichts (Berlin: Walter de Gruyter, 1929), V:197.
73
Ibid., 198.
30
the law—to act against the word of the law, if it deemed such action necessary.74 A
judicial "enabling law," in a sense, preceded the Enabling Law of March 1933 by several
years. And its sources lay not in the work of only Weimar theorists, but in the legal
traditions of the German Empire.
Conclusion
Art. 4 of the Weimar Constitution served no clear legal function, narrowly
conceived, during the Republic. It approved the "transformation" of international law,
especially common law, at a non-controversial level, but when international law
threatened actually to mean something, to hold the state to the rules its itself made, the
courts deemed the article irrelevant. Commentators from the Anglo-American world
expected that the court would eventually be forced to consider the meaning of the article
more carefully as German democracy and the international community of nations
continued to develop.75 Whether they were right or not, the Nazi seizure of power
brought the experiment to an abrupt end. The National Socialists never got around to
suspending Art. 4, and indeed Nazi courts cited the article in some of their decisions—
when it was convenient. They also said clearly what was already implicit in the Weimar
courts' decisions. First, "What the generally recognized rules of international law are
within the meaning of Art. 4, the German Reich by virtue of its sovereignty is alone
74
Christoph Gusy, Die Weimarer Reichsverfassung (Tübingen: Mohr Siebeck, 1997), 221-22.
See Lawrence Preuss, "International Law and German Legislation on Political Crimes," Transactions of
the Grotius Society 20 (1934), 93-95; Mattern, Constitutional Jurisprudence of the German Republic, 64546; Masters, "The Relation of International Law to the Law of Germany," 393.
75
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entitled to determine."76 Second, "Art. 4 of the constitution, by which the generally
recognized rules of international law are binding elements of German Law, is not to be
understood to mean that in view of the international law principle 'pacta sunt servanda,'
the legislature should be constitutionally prevented from enacting a statute contrary to the
treaty."77 With this starting point, it became clear that Art. 4 did not need to be
suspended, since following the dominant doctrine of the day as well as judicial practice,
the sovereign legislator could override it in any case.
National Socialist jurists had contradictory approaches to international law. On
the one hand, they continued to demand that Germany be treated according to principles
of justice and fairness; on the other hand, they in no way obligated Germany to treat other
nations according to those principles. The result was, in the words of Lawrence Preuss, "a
specious legal rationalization for any step which the National Socialist government...may
choose to take."78 Law is a tool, so it should not be surprising that lawyers would seek to
apply it in order to support their side; legal doctrine, however, seeks consistency and
coherence, and these principles were of no interest to the Nazi leadership or to Nazi
jurists. Here is not the place to reflect on what effect this fuzzy anti-legalism had on the
German polity; suffice it to say that the argument that power is what matters cannot solve
problems of jurisdiction and consistency. The Nazi rejection of clarity about how law and
power related would become one of the problems of organization faced by the Nazi state.
76
RGSt. 67, 130, cited in Entscheidungen des deutschen Reichsgerichts in völkerrechtlichen Fragen
(Cologne: Heymann, 1960), 14.
77
Ibid., 16. The cases that follow, however, dealing with issues of extradition, seem to express the opposite
idea.
78
See esp. the early remarks by Lawrence Preuss, "National Socialist Conceptions of International Law,"
The American Political Science Review 29 (1935), 594-609.
32
Art. 4 was, however, by no means useless, even if its specific legal meaning was
unclear. First, it focused attention on one of the central questions facing the international
order and German democracy: how Germany would relate to the community of nations.
In other words, it put the question of national sovereignty and international law front and
center. Second, the article served a public function even if not a legal function of raising
the question of the legality of state actions. At least it provided a way of questioning the
laws on espionage and treason in Weimar, even if it was not yet a successful one. The
foreign commentators who noted that courts would eventually have to consider this
article were probably right over the long run, though not over the short run. And Art. 4
served to reinforce the argument that the Nazi leadership operated outside of the law at
the Nuremberg Trial. An invocation that was clearly based on an incorrect reading of the
article's actual meaning in the Republic—but one that was strongly implied by an article
designed to make a statement to the world about Germany and international law.79 It is no
accident that the founders of the Federal Republic adopted a stronger version of Art. 4 in
the Basic Law, to signal Germany's return from barbarism.80
79
See esp. Justice Jackson's reference to the article in his opening remarks, Nuremberg Trial Proceedings,
II:145. Franz B. Schick, "Crimes against Peace," Journal of Criminal Law and Criminology 38 (1948), 459,
referring to closing speech by Hartley Shawcross.
80
Geiger, Grundgesetz und Völkerrecht, 162-92; Schorkopf, Grundgesetz und Überstaatlichkeit, 48-61. A
version of Art. 4 has furthermore been adopted by a series of other states emerging from dictatorship: see
for example Antonio La Pergola and Patrick Del Duca, "New International Law in National Systems:
Community Law, International Law and the Italian Constitution," American Journal of International Law
79 (1985), 598-621; Eric Stein, " International Law in Internal Law: Toward Internationalization of
Central-Eastern European Constitutions?" American Journal of International Law 88 (1994), 427-450.
33