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THE HISTORY AND THEORY OF INTERNATIONAL LAW
Sovereignty
THE HISTORY AND THEORY OF INTERNATIONAL LAW
General
Editors NEHAL BHUTA
Chair in International Law, University of Edinburgh
ANTHONY PAGDEN
Distinguished Professor, University of California Los Angeles
BENJAMIN STRAUMANN
Alberico Gentili Senior Fellow, New York University School of Law
In the past few decades the understanding of the relationship between nations has undergone a radical transformation. The role of the traditional nation-state is diminishing, along with many of the traditional vocabularies that were once used to describe what has been called, ever since Jeremy Bentham coined the phrase in 1780, ‘international law.’ The older boundaries between states are growing ever more fluid, new conceptions and new languages have emerged which are slowly coming to replace the image of a world of sovereign independent nation states which has dominated the study of international relations since the early nineteenth century. This redefinition of the international arena demands a new understanding of classical and contemporary questions in international and legal theory. It is the editors’ conviction that the best way to achieve this is by bridging the traditional divide between international legal theory, intellectual history, and legal and political history. The aim of the series, therefore, is to provide a forum for historical studies, from classical antiquity to the twenty-first century, that are theoretically-informed and for philosophical work that is historically conscious, in the hope that a new vision of the rapidly evolving international world, its past and its possible future, may emerge.
PREVIOUSLY PUBLISHED IN THIS SERIES
Law and the Political Economy of Hunger
Anna Chadwick
Nineteenth-Century Perspectives on Private International Law
Roxana Banu
Hermann Heller (1891–1933), c.1920
Reproduced with the kind permission of the Archiv der sozialen Demokratie der Friedrich-Ebert-Stiftung, Bonn (6/FOTA023312)
Series Editor’s Preface
Hermann Heller (1891–1933) has a fair claim to being the most interesting political, constitutional and international legal thinker of the Weimar era, but his work has remained largely obscure, especially in English-language scholarship and as compared to his contemporaries and antagonists Hans Kelsen and Carl Schmitt. A Google Ngram Viewer search confirms this intuition and reveals that mentions of Heller, both in German and in English books, have remained negligible compared to Kelsen and in particular to Schmitt—a case where unfortunately intellectual weight seems inversely proportional to impact. David Dyzenhaus’s present edition of Heller’s Sovereignty (1927), in a lucid translation by Belinda Cooper, seeks to change this.
Heller anticipates current debates about the nature of public reason and its presuppositions, and he shows that Jean Bodin had already anticipated them in the late sixteenth century. Heller points out that Bodin had justified his conception of sovereignty by showing the necessity of giving a binding interpretation of what natural reason demands—the necessity of a referee. For Bodin, the “reason which we call natural is not always so clear and manifest, but that it finds impugners.” Hobbes certainly agreed: “no one man’s reason, nor the reason of any one number of men, makes the certainty.” The necessity of a referee itself, however, is revealed by reason in a sufficiently clear and manifest way, for Bodin and Hobbes no less than for Heller; this makes their theories expressible, transparent—enlightened—and prevents them from being self-defeating. Private reason is prone not only to being wrong, but also to disagreement, which may lead to dangerous conflict. The sovereign referee provides public reason and thus allows for common, binding interpretations of natural reason. This solves practical coordination problems and prevents civil strife. However, and here Heller is again in broad agreement with Bodin and Hobbes, public reason does not just provide an arbitrary solution to coordination problems, but can be right or wrong. It seeks to be correct—it is reason after all. This makes Heller a normative constitutional thinker about sovereignty: sovereignty serves the practical goal to coordinate the behavior of many people through law, but does this by fleshing out an underlying conception of higher-order legal principles. Heller’s sovereign referee produces legislation (statutes or leges) but, as Heller reminds us, such legislation is to be sharply distinguished, with Bodin, from higherorder legal principles (ius, i.e. Heller’s Rechtsgrundsätze). These fundamental legal principles provide a normative yardstick for the sovereign’s legislation, and can in extreme cases be appealed to by subjects. Partly they are principles of legality, inherent in what legal form requires; partly they are substantive moral principles. Fundamental legal principles cannot, however, replace positive statutes. Rather, they stand in need of concretization and have to be positivized. This is what sovereignty is for. But sovereign legislation also requires a normative ideal to aim at, an ideal that represents the normative purposes of the state, is reasonable and binding
on all subject to it. It is because Heller’s overall view of sovereignty seeks to capture both the normative ideal and the positive legislation, not denying the tension, that his theory of sovereignty is neither utopian nor simply tied to the factual contingencies that happen to obtain.
For Heller, Kelsen’s positivism is the necessary result of Kelsen’s moral relativism and provides a congenial stepping stone for a fascist writer like Schmitt to celebrate an irrational decisionism. Heller himself acknowledges what he calls the individuality of states and the contingency within which politics inevitably play out, but this contingency in Heller’s thought is accounted for in terms of a body of “highest legal principles,” principles which are presupposed by the sovereign’s positive legislation. Legislation is adapted to contingencies, but the underlying, more fundamental legal principles are not. They encompass, interestingly, the rules of contract law, as they did for Bodin, which results in a view of the sovereign being bound, not by his own legislation, but by the norms of contract law. This has the important consequence that the state’s constitutional architecture, held together by contractual relationships between sovereign and magistrates, is not at the sovereign’s disposition. It also entails that the sovereign’s dealings with other sovereigns, which is contractual in nature too, has more solidity than legislation does. The sovereign is bound by contracts with its own subjects, because having been established as interpreter- and enforcerin-chief, it would be self-undermining and irrational for the sovereign not to acknowledge its own contractual duties.
There are several ramifications of Heller’s thought that are as interesting as they are topical. Heller was prescient in pointing out the difficulties of a political and legal theory which aims at a conceptualization of European federation without sovereignty and argued for the necessity of mitigating the dangers of the “political individualism” of European nation-states by way of a European federation—but such a federation, Heller believed, would itself need to have all the attributes of sovereignty at its disposal. Furthermore, on the domestic plane, Heller diagnosed a displacement of legitimacy “by the surrogate of formalist legality,” and he localized this displacement in the denial, by the nineteenth-century bourgeoisie, of the substantive ideas of liberty and equality which had been formulated by early modern natural law. Heller’s historical diagnosis provided the foundation of his anti-Marxist, Hobbesian, socialdemocratic take on what substantive legitimacy required in the circumstances of industrialized Europe. Heller thought that there was a dangerous possibility that the corrosion of sovereignty could entail the prospect of a world which “will in future replace state sovereignty with feudal capitalism, for example, which would once again dissolve political rule into a bundle of private-law use rights.”
Heller agreed with Hobbes about the causal power of ideas and knew that in the last resort, as Hobbes had put it, sovereignty “hath no foundation but in the opinion and beleefe of the people.” This requires a certain optimism about the convergence of private reason on a however limited set of beliefs as well as an optimism about the possibility of justifying these beliefs, given that “they cannot be maintained by any Civill Law, or terrour of legal punishment.” With Sovereignty, Heller sought to justify certain fundamental normative claims and thereby to provide a foundation “in the opinion and beleefe” of his readers. In his substantial Introduction, David
Dyzenhaus argues that we, as individual legal subjects, cannot avoid taking a stance vis-à-vis those normative claims: Heller’s sovereign Rechtsstaat requires the subjects of the law not only to authorize the law, but also to check public reason when it diverges from its promise to express fundamental ethical principles of law. Professor Dyzenhaus thus shows why we should return to Heller’s arguments about the legal idea of sovereignty, and why this idea deserves to be preserved.
Benjamin Straumann
New York City November 2018
Preface and Acknowledgments
A sense of political urgency motivated the interwar debate in Europe about sovereignty, as legal scholars and political theorists sought to understand the new legal order that the League of Nations had attempted to create, whether out of a determination to make the international rule of law succeed or to undermine it. As we know, the attempt failed and in our own era we are also faced with an urgent question: whether the renewed attempt after the Second World War to create an international order that had learned from the mistakes of the earlier experiment is also on the brink of failure. It is hardly surprising, then, that there is a renewed interest in the work of these interwar scholars, in particular in those who worked in Weimar Germany where the sense of political urgency was most palpable.
The Oxford University Press publication of a translation of Hermann Heller’s Sovereignty: A Contribution to the Theory of Public and International Law (1927) makes available in English the work of one of the major players in that interwar debate who is hardly known in English. It is distinctive in that, like the approach set out by his rightwing rival Carl Schmitt, Heller wished to emphasize the political nature of all conceptions of sovereignty. But, like his main foil the great legal positivist philosopher Hans Kelsen, Heller wished to defend a legal idea of sovereignty, one that would explain why sovereignty and the rule of law or Rechtsstaat are part of one juridical package. The introductory chapter, “The Politics of Sovereignty,” tries both to provide a context for the work and to help the reader navigate Heller’s complex argument. I also try to provide some detail about a number of the figures with whom Heller engages in the book and about several of the examples he discusses without providing the reader with much or any context. (To provide detail on all the figures and examples would not only have been a mammoth undertaking, but also would, in my view, have overwhelmed the text.)
In the first two chapters, Heller relies heavily on the work of Jean Bodin and quotes extensively from him, nearly always using the Latin original. I have relied on the 1606 English translation by Richard Knolles, sometimes adapted a little, in rendering the Latin into English—Jean Bodin, The Six Bookes of a Commonweale, Kenneth Douglas McRea, ed. and intro. (Cambridge, Mass.: Harvard University Press, 1962). I indicate the pagination of the English translation in square brackets. I have done the same for the translation from the Latin text of Hobbes’s De Cive, where I have relied on the edition of Richard Tuck and Michael Silverthorne: Thomas Hobbes, On the Citizen (Cambridge: Cambridge University Press, 1998).
When Heller uses Latin or French terms, I have supplied the English equivalent in quotation marks and, with the first-time use, put the original in square brackets. Thereafter the terms are marked by double quotation marks. I have erred on the side of caution and so have translated some terms that will seem obvious to most readers. If no square brackets are evident with the first-time use, it is because Heller used the term in English. Heller’s use of “Rechtsstaat”—the term for a state committed to the
Preface and Acknowledgments
rule of law—is retained but the adjective “rechtstaatlich” has been translated as “rule of law.” (There is a considerable literature on whether there is a distinction between the meaning of Rechtsstaat and the rule of law, but this debate does not directly affect either Heller’s text or my Introduction.) Translations from the French are my own. The text preserves Heller’s original footnotes and no attempt has been made (with one exception) to check them. Heller uses double quotation marks for direct quotations from cited texts and single quotation marks for a variety of purposes: to denote terms of art in a body of work but not as a direct quotation, for emphasis, and to indicate a tone of sarcasm or irony. I have corrected some of these in places where he seems to have slipped. The notes to Heller’s text run from 1 to 530 as in the edition of Sovereignty in Heller’s collected works.
Heller is not the easiest person to read. His ideas are presented in great torrents of often highly polemical argument. With Sovereignty, one has the impression even more than usual of a man in a hurry to make his mark in a debate that had already been shaped by interventions in the 1920s by Kelsen, Schmitt, and many others. The translation tries to remain faithful to Heller’s mode of argument at the same time as being as clear as possible. For this, I have to thank Belinda Cooper who undertook that very difficult task. I also thank her for her patience as we worked closely together in trying to tease out meaning without departing from Heller’s intentions.
The Goethe Institute generously funded part of the cost of the translation and the University of Toronto the remainder. The German publisher of Heller’s collected works, Mohr Siebeck, not only agreed to have the book translated, but also warmly encouraged the project and in particular I thank the very helpful Foreign Rights Manager, Elisabeth Wener. Heller’s family kindly gave Oxford University Press their permission to publish.
I have been working on Heller for many years, but the suggestion that I should preside over a translation of the book and provide an introduction to it came from Benjamin Straumann, one of the editors of the series in which it appears. I am grateful to Benjamin for setting me off on this path and for much encouragement and help along the way.
The initial work on the translation and a lot of the research for the introductory chapter were done while I was a Fellow at the Wissenschaftskolleg zu Berlin in 2017/ 18. In my end of year report to the Kolleg, I highlighted that it had provided an ideal environment for this work. First, there was the serendipity that Heller wrote the book in Schlachtensee, just a few kilometers from Grunewald where the Kolleg is located. Second, the incomparable librarians were able to supply me with the often very hard to find material I from time to time needed. Third, Heller assumed that his many quotations—Latin, Greek, French, and Italian—needed no translation, and I could call on my fellow fellows and their partners (Barbara Kowalzig, Giacomo Todeschini, and Jim Zetzel) for help with translation, and on a theologian (Michael Moxter) and an historian of the church (Hubert Wolf) for help with some of his allusions.
That leave would not have been possible without the encouragement of my two homes at the University of Toronto, the Law Faculty and the Philosophy
Preface and Acknowledgments
Department. My thanks go to them as well, including the Law librarians who do in fact compare to the otherwise incomparable librarians of the Wissenschaftskolleg.
For providing comments on the Introduction at short notice, I am very grateful to my friends and colleagues Jutta Brunnée and Karen Knop. I am equally grateful to Daniel Lee for his comments on Heller’s reliance on Bodin, some of which pointed out several problems with Heller’s own interpretation of Bodin. But as these problems do not affect the main theme that Heller takes from Bodin—that the sovereign’s freedom from law is from positive or enacted law not freedom from higher legal principles—I do not address these problems in the Introduction.
Finally, I would like to dedicate the work as a whole to Christoph Müller. Without Professor Müller’s commitment to preserving the thought of the liberal-left (often Jewish) public lawyers of Weimar, we would not have Heller’s collected works, which he edited in the 1970s, nor more recently the collected works of Hugo Preuss, the “father” of the Weimar Constitution. In a time when the fascistic thought of Carl Schmitt seems all the rage, we will find, I hope, that our debt to Professor Müller is considerable.
Introduction The Politics of Sovereignty
David Dyzenhaus
Hermann Heller published Sovereignty: A Contribution to the Theory of Public and International Law [Sovereignty]1 in 1927 as an intervention in the interwar debate about the nature of sovereignty. In large part it is a response to the most important legal philosopher of the last century, Hans Kelsen, and in particular to his work of 1920, The Problem of Sovereignty and the Theory of International Law: A Contribution to a Pure Theory of Law. 2 It is also in small part a response to one of the most controversial figures in the political and legal thought of the last century, Carl Schmitt and his 1922 book Political Theology: Four Chapters on the Concept of Sovereignty. 3 Of the three, Heller’s book is the least known, in fact virtually unknown.
This debate remains pertinent today, as Martti Koskenniemi observes in saying that if the “terms of the interwar debate are applied” to contemporary challenges to the jurisdiction of international courts such as the European Court of Justice and the European Court of Human Rights, it is “possible to see that behind the apparently conceptual problem of the limits of the ‘political’ vis-à-vis the ‘legal’ there is a more pragmatic concern about who should have the final say about foreign policy—and thus occupy the place political theory has been accustomed to calling ‘sovereignty’.”4 This claim is made in Koskenniemi’s “Introduction” to another work of the interwar period, by the foremost international lawyer of the last century, Hersch Lauterpacht’s The Function of Law in the International Community (1933). Koskenniemi continues: “Kelsen, Schmitt, and Lauterpacht all had much to say
1 Hermann Heller, Die Souveränität: Ein Beitrag zur Theorie des Staats- und Völkkerrechts in Heller, Gesammelte Schriften (Tübingen: J.C.B. Mohr, Christoph Müller ed.), Volume 2, 31.
2 Hans Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts: Beitrag zu Einer Reinen Rechtslehre (Aalen: Scientia Verlag, 1981, reprint of the second edition of 1928). See Hans Kelsen, The Problem of Sovereignty and the Theory of International Law, (Oxford: Oxford University Press, forthcoming, Paul Silverman, trans.).
3 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, (Chicago: University of Chicago Press, 2005, George Schwab, trans.).
4 Martti Koskenniemi, “Introduction” to Hersch Lauterpacht, The Function of Law in the International Community [1933] (Oxford: Oxford University Press, 2011), xxviii, at xlvi
© David Dyzenhaus, 2019. Published 2019 by Oxford University Press.
about this, and very little that would have been both new and intelligent has been added to the topic thereafter.”5
But what Koskenniemi gives with one hand, he takes away with the other. He immediately suggests that in today’s “pluralist” world, there is simply no such “ultimate place from which authoritative direction could be received for any and all disputes.”6 He concludes that we should turn away from abstract theory to questions about the politics of international law and institutions, in which the legalist vision of those like Lauterpacht, who believed that “international lawyers, in particular international judges, should rule the world,” should be understood as a “political project” in competition with others, each imposing its own set of advantages and disadvantages on participants.7 More recently, in a collection on sovereignty, Koskenniemi has said that “sovereignty” is “just a word” and that if there is “historical sense to a notion such as ‘sovereignty of the law’ ” it is perhaps “shorthand for the power of the juristic class.”8
Heller does not figure on Koskenniemi’s list though he does get a mention in his magisterial book The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960. There he is described as the “socialist constitutional lawyer” who pointed out that “many of the numerous critiques of sovereignty after the First World War engaged a straw man—no political theorist had ever espoused the absolute conception they attacked. Without a concept of sovereignty in a concretely existing community . . ., they continued to move in an abstract conceptual heaven.”9 “Yet,” Koskenniemi continues, “there was force to the argument that the attempt to square the circle of statehood and international law was doomed to fail on logical grounds. Either the State was sovereign—and there was no really binding international order. Or there was a binding international order—in which case no state could truly be sovereign.”10
Koskenniemi’s attribution of a conception of sovereignty to Heller as that which exists in a concrete community seems to put Heller on the sovereignty side of the tension between sovereignty and international law he just sketched. He is not alone in this judgment. In The Function of Law in the International Community, Lauterpacht grouped Heller’s Sovereignty among those works of the time that argued that the relation of the state to international law is “based on the voluntary acceptance of legal obligations” and said that, “in fact,” Heller’s “able monograph is a somewhat intolerant denial of international law as a system of law, and an affirmation of the absolute sovereignty of the state.”11 But if that judgment is right, it would have been odd for Heller to have argued that “no political theorist had ever espoused the absolute conception.”
5 Ibid. 6 Ibid. 7 Ibid., xlvii.
8 Martti Koskenniemi, “Conclusion: Vocabularies of Sovereignty – Powers of a Paradox” in Hent Kalmo and Quentin Skinner, eds, Sovereignty in Fragments: The Past, Present and Future of a Contested Concept (Cambridge: Cambridge University Press, 2010) 222, at 229 and 241.
9 Marrti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 18701960 (Cambridge: Cambridge University Press, 2001), 239–40.
10 Ibid., 240.
11 Lauterpacht, The Function of Law in the International Community, note 2 at 416–17.
Heller’s book does defend an absolutist conception of sovereignty. But it does so by articulating the complexity of such a conception in a way that explains why so many critics do in fact attack a straw man. Heller sees that conception as both legal and part of a political project, as Koskenniemi claims one should understand Lauterpacht’s own legalist vision. But in exposing the politics of a legal or juridical idea of sovereignty, Heller hoped to address sovereignty so as to clarify the space in which pragmatic decisions had to be made. That clarification would preserve the spirit of legalism in a way denied to Kelsen’s legal positivist approach and against Schmitt’s attempt to show that the rule of law is a liberal sham.
In doing so, Heller approached the understanding of international law that Lauterpacht set out six years later in The Function of Law in the International Community because, despite Lauterpacht’s own view of Heller, they shared the goal of injecting substance into Kelsen’s Pure Theory of Law precisely to square the circle of sovereignty and international law. The major difference between the two is, as I just suggested, that Heller conceived this project as political as well as legal. But he did so in a way that would have led him to resist Koskenniemi’s invitation to turn away from abstract theory to an account immersed in the concrete politics of the moment.
Writing in 1968, the distinguished social theorist Wolfgang Schluchter concluded a book on Heller by saying that contemporary political and social theory should not “decline Heller’s legacy.” Heller’s account of progress from a skeptical, pragmatic perspective meant, Schluchter said, that hardly any other theorist had set out as clearly as Heller did the predicament that results from the necessity to make political decisions from a stance of internal uncertainty, while barring any retreat to a past world or to a future salvation, and without engaging in crude simplifications or one-sided treatments of important problems.12 In this Introduction, I will explain not only why the interwar debate remains relevant today on its own terms, but also why we should pay special attention to Heller’s contribution within it, precisely because his argument about the place of sovereignty in the international legal order has the characteristics that Schluchter so nicely describes.13
Paradigms of Sovereignty
Heller died in 1933 aged forty-two and to this day remains at best an obscure figure in the English-speaking world.14 Kelsen’s status in that same world is assured. But he
12 Wolfgang Schluchter, Entscheidung für den Sozialen Rechtsstaat: Hermann Heller und die Staatstheoretische Diskussion in der Weimarer Republik (Baden-Baden, Nomos, 1983), 290. The most comprehensive work on Heller’s thought is Michael Henkel, Hermann Hellers Theorie der Politik und der Staates (Tübingen: Mohr Siebeck, 2011).
13 Parts of the following two sections are adapted from my “Kelsen, Heller and Schmitt: Paradigms of Sovereignty Thought” (2015) 16 Theoretical Inquiries in Law 337 and I am grateful to the journal for permission to repurpose these parts.
14 Sovereignty was, however, reviewed quite favorably in (1928) 22 American Journal of International Law 706 by Francis Deák. For some signs of a revival of interest in Heller, see (2015) 21 European Law Journal, issue 3, a collection devoted to the theme of “authoritarian liberalism,” a term coined by Heller
is little read even by specialists in legal philosophy and his Weimar-era work, most of which remains untranslated, is almost as unknown as Heller’s entire corpus.
Kelsen and Heller were both Jews who had grown up in the Austro-Hungarian empire. Both were committed to democracy, parliamentary government, and were on the social democratic left. Kelsen and Heller were forced out of their positions in Germany in 1933 after the Nazi seizure of power and the enactment of the law that required the elimination of Jews from public positions—The Law for the Restoration of the Professional Civil Service. Heller was at that time a professor in the Frankfurt Law Faculty, where the dismissal of Jewish professors opened the way for the appointment of Ernst Forsthoff, a committed Nazi and a disciple of Schmitt, who as one of Germany’s leading public lawyers after the war was instrumental in ensuring Schmitt’s lasting influence. Heller’s last significant public intervention was his appearance against Schmitt in the Preussenschlag. In this case, the Prussian government—the major bastion of social democracy in Germany—contested the seizure of the Prussian state machinery by Schmitt’s political masters in the federal government under the pretext that the political situation in Prussia represented an emergency in terms of Article 48 of the Weimar Constitution.
Kelsen was at that time at the Cologne Law Faculty, where as acting dean he had recruited Schmitt to the Law Faculty the year before. Schmitt alone among Kelsen’s colleagues refused to sign the Faculty’s letter of protest. Heller died in exile in Madrid that year of a heart condition, a relic of his war time service, while Kelsen made his way via Geneva and Prague to the USA. In 1942, he took a visiting position in Political Science at Berkeley, which became a full position in 1945. He remained there for the rest of his long career in relative obscurity.
Carl Schmitt, in contrast, has become in our century one of the central figures in political and legal theory despite the fact, or perhaps because of the fact, that his work is a sustained polemic against liberal democracy and the liberal commitment to the rule of law, an intellectual commitment that had significant practical implications. In the early 1930s, he was in the inner circle of the conservative politicians who were determined to turn the clock back on Germany’s first experiment with democracy at the same time as they attempted to contain Hitler. He jumped onto the Nazi bandwagon as soon as Hitler had not only bested these politicians, but also ordered the murder of General Schleicher, the politician to whom Schmitt was closest, along with the murder of Hitler’s rivals within his own ranks. Schmitt’s public reaction to these murders on the “Night of the Long Knives,” and to the enactment of the legislation that retroactively legalized the murders, was an article celebrating this event entitled “The Führer as the Guardian of our Law”15 his first major step in
in the last paper he published before leaving Germany. (The collection begins with his essay of 1933, “Authoritarian Liberalism?,” translated at 295 by Bonnie Litchewski Paulson, Stanley L. Paulson, and Alexander Somek.) See also Anthoula Malkopoulou and Ludvig Norman, “Three Models of Democratic Self-Defence: Militant Democracy and its Alternatives” (2018) 66 Political Studies 442, which revives against Schmittean decisionist and Kelsenian formalist accounts of democracy in contemporary debates Heller’s idea of “social homogeneity” as the basis of democracy.
15 Carl Schmitt, “Der Führer schützt das Recht” in Schmitt, Positionen und Begriffe in Kampf mit Weimar-Genf-Versailles 1923–1939 (Berlin: Duncker & Humblot, 1988) 199.
ingratiating himself with the Nazis. His involvement with them was sufficient for him to be interned after the war while the Allies considered putting him on trial at Nuremberg. He was not in the event tried, but was prohibited from having an academic position, which did not prevent him from exerting a baleful influence on postwar German public law.16
Oxford University Press’s publication of Heller’s Sovereignty as well as Kelsen’s work on the same topic in the same year is important at a time when Schmitt has become central to Anglo-American political and legal thought to the extent that essays in the mainstream press will occasionally refer to him as providing insight into our current situation.17 At the same time, there is an explosion of books about sovereignty, many of which strike a pessimistic note18 and in which often Schmitt figures prominently and always more prominently than Kelsen, while references to Heller are extremely rare.19
The reason for the explosion is that our situation is an eerie echo of the tensions and concerns that came to the fore in Weimar. Sovereignty, in the sense of national sovereignty, is often perceived in liberal democracies today as being under threat, or at least “in transition,” as power devolves from nation states to international bodies. Some scholars conclude that we are living in a “post-sovereign order,” though perhaps “disorder” would be more accurate, as the loss of control by individual states to bodies which do not have the characteristics of states—for example, a defined territory over which they wield a monopoly of effective lawmaking power—leads to the fragmentation of political power. This threat to national sovereignty is at the same time considered a threat to a rather different idea of sovereignty, popular sovereignty—the sovereignty of “the people”—as, increasingly, important decisions appear to be made by institutions outside of a country’s political system or by elitedominated institutions within.
16 See Reinhard Mehring, Carl Schmitt: A Biography (Cambridge: Polity, 2014, Daniel Steur, trans.) and Jan-Werner Müller, A Dangerous Mind: Carl Schmitt in Post-War European Thought (New Haven: Yale University Press, 2003).
17 As a search of, for example, The New York Times, The Guardian, and The Washington Post will show.
18 Perhaps the most dramatic title in recent years is George Edmonson and Klaus Mladek, eds, Sovereignty in Ruins: A Politics of Crisis (Durham: Duke University Press, 2017) in which the extent of the ruin is confirmed by the fact that sovereignty is hardly discussed by any of the contributors to the book.
19 Compare, for example, the index citations in Richard Bourke and Quentin Skinner, eds, Popular Sovereignty in Historical Perspective (Cambridge: Cambridge University Press, 2016); Richard Rawlings, Peter Leyland, and Alyson L. Young, eds, Sovereignty and the Law: Domestic, European, and International Experiences (Oxford: Oxford University Press, 2013); Kalmo and Skinner, eds, Sovereignty in Fragments, and Neil Walker, ed., Sovereignty in Transition (Oxford: Hart Publishing, 2003). The last contains one of the rare discussions of Heller—see Miriam Aziz, “Sovereignty Über Alles: (Re)Configuring the German Legal Order,” 279, especially 295–6, as well as a reference in Bardo Fassbender, “Sovereignty and Constitutionalism in International Law,” 115, at 124–5. For a more balanced approach to Schmitt and Kelsen, see Jean L. Cohen, Globalization and Sovereignty: Rethinking Legality, Legitimacy and Constitutionalism (Cambridge: Cambridge University Press, 2012) and Andrew Arato, Post Sovereign Constitution Making: Learning and Legitimacy (Oxford: Oxford University Press, 2016). It is significant that in a recent book on the history and theory of sovereignty, as eminent a scholar as Dieter Grimm refers to Heller only once in a footnote, and refers more often to Schmitt than to Kelsen: see Grimm, Sovereignty: The Origin and Future of a Political and Legal Concept (New York: Columbia University Press, 2009, Belinda Cooper, trans.).
Indeed, “sovereignty” has become a kind of catchword in politics for a stance that may include hostility to some or all of the following: the role of international organizations and supra- national organizations in making decisions that have a domestic impact, international law itself, immigrants and refugees, a judicial role in upholding constitutionally entrenched rights and elite expertise, most notably in the scientific fields that concern themselves with the environment and climate change. Those who hold this kind of stance seem intent on eradicating these elements in a bid to restore their countries to a perceived lost “greatness,” predicated on an idea of a political community in which the condition of entry is satisfaction of vague criteria of substantive homogeneity.20
In the 1920s, a similar sense of loss of control was pervasive. People wondered about their place in a world during a time when new countries and national identities were being formed on terms dictated by the victorious nations at the Paris Peace Conference that ended the First World War. At the same time, these nations attempted to forge a new international order by entering into the Covenant that led in 1920 to the creation of the League of Nations, an association confined to the victors at its inception,21 and of the Permanent Court of International Justice that was attached to the League and which began operation in 1922.
These tensions and concerns were not unique to Weimar Germany; but they had an existential quality there. Germany was a signatory to the Treaty of Versailles, which ended the war between herself and the Allied Powers in 1919. However, as the principal vanquished country, she had no choice but to sign an agreement that imposed an economic stranglehold on her as well as foreign control over important aspects of international and domestic policy, and which required her explicitly to accept a humiliating statement of responsibility for the aggression that led to the war.
This national humiliation coincided with the birth of the Weimar Republic, which replaced the pre-war political system of a monarch in whom power was concentrated with a democratic system in which the Constitution assigned power principally to an elected parliament. But commitment to the Constitution did not prevail among either the elites or the masses and that made its political and legal institutions most fragile. Indeed, until 1923 there were several violent attempts by the extreme right and left to overthrow the Republic.
In this context, legal scholars on the right regarded the Weimar Constitution as itself a threat to sovereignty, given that it diluted the power of the pre-war sovereign— the Kaiser—by introducing the checks and balances of democratic, parliamentary government. Their concern about sovereignty was, however, much more radical than that of contemporary figures in the Anglo-American tradition of opposition to judicial review who claim that such review undermines parliamentary supremacy and so the authority of the representatives of the people. For these rightwing Weimar
20 Although in groups that remain for the moment on the political margins, the criteria are often frighteningly precise; and these groups have become less marginal with the election of Donald Trump, the move toward illiberal democracy in Central and Eastern Europe, and so on.
21 Except for the USA, which decided not to join despite the fact that President Wilson had been its main proponent.
scholars opposed root and branch what they regarded as the too pluralistic party political system of parliamentary democracy; because they thought that, like the judicial system, it was prone to capture by special interest groups and thus contributed to the problem of fragmentation. On their view, popular sovereignty is national sovereignty, with national sovereignty understood as the sovereignty of a substantively homogeneous people. This is a quintessentially political power located outside of legal order. As such, it cannot be constrained by the legal limits that liberals and democrats desire to impose on an authentic sovereign, one who is capable of making the kinds of decisions necessary to solve the fundamental conflicts of a society.
Their position gave rise to one of the three leading paradigms of sovereignty in Weimar. Schmitt, its leading exponent, set out his conception of sovereignty in 1922 in the opening sentence of one of his two most influential works, Political Theology: “Sovereign is he who decides on the exception.”22 Schmitt’s customarily succinct and enigmatic formulation becomes clearer when paired with his claim in an essay of 1927 “The Concept of the Political,”23 which he elaborated in his other most influential work as a book in 1932, that the primary distinction of “the political” is the distinction between friend and enemy.24 It follows, he supposed, that the political sovereign is the person who is able to make that distinction, is indeed revealed in the making of that distinction, and that he decides both that there is an exception and how best to respond to it.
Schmitt argued that liberal democratic institutions with their commitment to the legal regulation of political power, that is, to the rule of law or the Rechtsstaat, are incapable of making the distinction, hence, incapable of being sovereign, hence, cannot be the guardian of the Constitution. He took this flaw to be manifested in Article 48 of the Weimar Constitution—the emergency powers provision—since that article recognized the need for the presidential exercise of sovereign authority on existential questions, though it also sought in a liberal-legalist fashion to set limits to an exercise of executive discretion that cannot, in his view, be legally circumscribed.
Kelsen provided the second, legal positivist paradigm, one which opposed the classical idea that each state is sovereign in that it is subject to no legal limits, either internal or external. Indeed, it might be more accurate to say that Kelsen accepted the claim that sovereignty is best understood as the absence of legal limits on ultimate political power, but as a result argued that one has reason to eradicate the idea from theory and practice. Thus, he concluded his 1920 work on sovereignty by advocating the radical suppression of the concept of sovereignty in legal thought if, as he thought desirable, states were to conceive of each other as equal actors within an international legal system.25
22 Schmitt, Political Theology, 5.
23 Carl Schmitt, “Der Begriff des Politischen” (1927) 58 Archiv für Sozialwissenschaft und Sozialpolitik 1. This article was not available to Heller at the time he was finishing Sovereignty. For his 1928 response to it, see Hermann Heller, “Political Democracy and Social Homogeneity,” David Dyzenhaus trans., in Arthur J. Jacobson and Bernard Schlink, eds, Weimar: A Jurisprudence of Crisis (Berkeley: University of California Press, 2000) 256.
24 Carl Schmitt, The Concept of the Political, (Chicago: University of Chicago Press, 1996, George Schwab trans.).
25 Kelsen, Das Problem der Souveränität, 320.
