The worldwide legal revolution - (Carl Schmitt)

Revista de Estudios Políticos (Nueva época) Issue 10, July/August 1979

1. THE MODERN YEARNING FOR STATE LEGALITY

Progress is present, as well as in the consciousness of professional revolutionaries. Today this refers to the legal revolution. According to Rudolf Smend, a specialist in constitutional law — who died of old age in 1975 — the German people suffer from a “tender yearning for legality.” I assume that Smend made this observation not only as a historian of the Imperial Chamber of Wetzlar, but also as an observer of the positivist normativism of his own time. Now, in 1977-78, the old and experienced Spanish professional revolutionary, Santiago Carrillo, touches on this subject in his book Eurocommunism and the State¹. His yearning for legality is of a different political nature, but equally touching. He confesses his conviction that the violent methods of Lenin and Trotsky's illegal revolution of October 1917 are outdated today. They were only in their time and place when it came to the abrupt transition from an agrarian country to a modern, i.e. industrial society. As a communist revolution, these methods were legitimate, but not legal. Today, however, they are outdated, because today it is about state power in industrially developed societies. They are no longer a suitable model for a communist revolution, and must be replaced by peaceful, i.e. state-legal methods.

Carrillo thus knows how to draw on the experiences of Mussolini's fascism and Hitler's national socialism. He repeats over and over again the word “State” in a positive sense, with a big S. The State is no longer dead, far from it, but more alive and necessary than ever; for the State is the bearer of legality, which brings about this miracle of a peaceful revolution. The revolution, in turn, legitimizes the State, as compensation for the benefit of a state-legal revolution. The legal revolution becomes permanent, and the permanent State revolution becomes legal.

Our analysis of the possibilities of a world legal revolution is concerned with legality, not with the legitimacy of a world revolution. For such an analysis it is useful to briefly clarify the notions before proceeding with this dissertation.

2. LEGALITY, LEGITIMACY, AND SUPER-LEGALITY

a) Legality means a formula of obedience and discipline. Its aim and object is a “possibility of compelling obedience” (Max Weber)². It is the mode of operation of any developed bureaucracy, whether of a modern state or of a modern private industry. “Formula of obedience” is an expression of Goethe in a commentary on Schiller's play Wallenstein. The decisive motive was the oath to the Emperor as a “formula of obedience.” What is nowadays called “rationalism” is nothing more than the reduction to calculability of performance in the realisation of the plan. A popular song expresses it precisely: “As long as you obey me, I don't need your loyalty.”

State legality implies the inevitable political premiums on the possession of state and legal power: obéissance préalable [prior compliance] for all laws and state acts; distribution of the social product, of offices, commissions and subsidies; interpretation of the manifold new situations that continually arise from rapid scientific, technical and economic-industrial progress. For this reason, state power — if it is politically aware of itself — has astonishing possibilities to continuously create new situations and new faits accomplis full of consequences. State legality provides it with a political surplus value; as Karl Marx says of capital, it is “a value that incubates surplus value.”

b) Legitimacy means a formula for the identity and moral, ideological and philosophical self-representation of a state order. For as long as written constitutions have existed, the author of the constitution has tried to sanction its identity with solemn declarations, with the invocation of God, with moral, ideological or philosophical formulas which he sets down in preambles. Ion Contiades³, a Greek jurist, gives us in his 1964 thesis (supervised by Ernst Forsthoff) a precise idea of this desire for prestige of today's States, which thus seek to legitimize themselves. The Constitution of the Turkish Republic of 27 May 1961 deserves to be cited as an example of the accumulation of such legitimacy:

“The Turkish state is a Republic. The Turkish Republic is a national, democratic, secular and social constitutional state based on human rights and the fundamental principles set out in the preamble.”⁴

This example of a preliminary constitutional declaration represents the kind of constitutionalism that is now widespread throughout the world. A state that presents itself with these attributes commends itself as legitimate. Since President Woodrow Wilson, founder of the League of Nations, legitimacy has ceased to be the specific attribute of hereditary monarchy. Dynastic legitimacy has become democratic legitimacy. At the same time, the corresponding antagonisms have changed into democratic attributes. Liberal or capitalist democracy is now the enemy of socialist or communist democracy, and vice versa.

c) But what is super-legality? The word means the increased validity of certain norms as opposed to simple or normal norms. The typical case is procedural rules which should make it difficult to change or abolish rules by a qualified majority or to structure the procedure in several different ways. In modern pluralist democracies, this complication of the legislative procedure is intended, above all, to avoid the frequent change of governments with slim majorities and fragile coalitions, to create stable majorities capable of governing, because a stronger majority is required, over and above the simple majority of 50 percent.

Both the notion and the term “super-legality” come from Maurice Hauriou. It is the fruit of his long constitutional and administrative experience, with theory and praxis, of the many French constitutions between 1789 and 1923 and of the stable and traditionally rich administration of the French nation and its state. It is significant that he discovered the notion after the experiences of the 1914-18 world war and after a post-war period, and that he expressly insisted on this circumstance⁵ . Hauriou opposed institutionalised control of “super-legality,” especially the control of the constitutionality of laws by a supreme constitutional court. On this point, the constitutional development of some modern industrial states and their constitutionalism have disavowed Hauriou, although they have not disproved him.

I have tried to expose the problematic relations between constitution, normal law, and constitution-changing law in terms of the interpretation of the Weimar constitution. In the critical situation of 1932, I published the work “Legality and Legitimacy.” In the chaotic period of autumn and winter 1932-33, I considered it unconstitutional for a National Socialist or Communist to be appointed Reich Chancellor and to be given political bonuses for the legal possession of power, such as, for example, the powers of Article 48:

“I agree with Hauriou that every constitution knows fundamental ‘principles,’ which essentially belong to the unalterable ‘constitutional system,’ as Carl Bilfinger said. It cannot be the meaning of constitutional rules on the revision of the constitution to open a procedure to eliminate a system which should have been established by the constitution. If a constitution provides for the possibility of revisions, it is not intended to provide a legal method of eliminating its own legality, let alone a legitimate means of destroying its legitimacy.”

Super-legality is conceived as a specifically legal-constitutional notion. However, it easily lends itself to polemical applications and use with political intent. Words with super almost provoke this use. Legitimacy then appears as a kind of superior legality and is also transformed into a method of forcing obedience. The liberal Hauriou wanted to avoid precisely this. If a constitutional court is instituted as the supreme normativist instance in a hierarchy of norms and ‘values,’ then this institutionalized constitutional court becomes the “supreme legislator”, a term that has already appeared in the discussion⁶.

In this situation, progress, as accelerated development in the scientific, technical, and industrial field, can become a general and global legitimization of opposing political goals. Then, any party program, right or left, can legalize its fundamental values; and that means procuring for itself the possibility of obligation to obedience. This would be the most transcendental of all premiums on the legal possession of power.

3. IDEOLOGIES OF PROGRESS AS DRIVING MOTIVES OF SUPER-LEGALITY

Idea and praxis of a world revolution are today legitimized by invoking ideologies of progress. For the highly developed industrial societies of today's world, the idea of technical and economic progress — which in its functionality is global — is of particular importance. François Perroux⁷ speaks of a path towards the universal unity of mankind. La révolution qui est au travail dans le monde [The revolution at work around the world] seeks the way towards this goal. But he is still using an imprecise notion of economy. It confuses quelques performances d'Européens et d'Occidentaux avec le progrès de l’économie des hommes [a few performances of Europeans and Westerners with the progress of the economy of Men]. According to Perroux, this is nothing but an illusion. He opposes this vision with an economic progress which is distinguished from technical and mercantile progress, and which converts a miserly economy — with its egoism of individuals, nations, classes and races — into an économie de tout l'homme et de tous les hommes [economy of all Man and of all men].

Our scientific intention is not focused on a critique of modern industrial society in general, nor on a principled denial of the consumer-society in contrast to an economy of greed. Nor will we talk about the annoying, harmful and dangerous consequences that an unchained progress of science, technology, and industry brings with it; of environmental pollution, damage to health, and the social damage of an ever higher standard of living. To summarize, we leave aside everything that is called in German, with a miserly euphemism, Nebenwirkungen, side effects, and which became a topic of public discussion on the occasion of the critical report of the Club of Rome (1975)⁸. Economic progress appears in a syndrome of industrial technical progress. Global progress, in the singular, is confronted with a growing number of specific progresses, in the plural. Perroux sets out this problem with precision as the conclusion of his theory of the 19th century. The last part of the book is directed against the adversaires du progrès [opponents of progress]. The great general process of progressivité de l'espèce humaine [progressive nature of the human species] encompasses many different kinds of progress. An exact definition of progress has become inevitable. The légitimité et opportunité d'une analyse rigoureuse et exigente du progrès [legitimacy and timeliness of a rigorous and demanding analysis of progress] is obvious⁹.

Progress, in the plural, is steadily increasing; scientific, technical, economic, and commercial progress seems to be pushing the social progress of industrial society. Moral, civilizational, cultural, and humanitarian progress accompanies another type of evolution. The various developments have their inter-relationships, isolated or in groups; friendly as well as hostile or neutral. They can be seen as absolute or as willing to compromise; they can slow down or speed up; they can run parallel or cross and get in each other's way. Finally, it is also conceivable that it is precisely their collision and trampling, their déclination that is necessary for the global unity of the human race to emerge, analogous to the declination of atoms according to Democritus' theory:

quod nisi declinare solerent omnia deorsum cadent per inane profundum.

[unless they are used to decline, everything will fall downward through the void]

Karl Marx quoted these verses by Lucretius in the preliminary works for his Jena doctoral dissertation¹⁰. Marx translates declinare in German as ausbeugen.

In the context of our reflections on the possibility of a world legal revolution, we have to add another kind of progress: political progress. It belongs to the propaganda arsenal of the international parties as a slogan of legitimization. Since the Russian Revolution of October 1917, Soviet state power has been at the service of a universal approach to the political unity of the world and the human race. The Russian Revolution consciously wanted to be the beginning of a world revolution. It abolished the constitutions of Tsarism and the Kerensky regime, it also abolished the National Constituent Assembly, elected by the Russian people, and installed a “dictatorship of the proletariat.” This was illegal from the point of view of Russian state norms which, in turn, were essentially based on Western doctrines of a pouvoir constituant. Here, then, an internal revolution was “encompassed” within the horizon of a world revolution. I borrow the term englober from Perroux, who described the phenomenon of the englobement of national and international, state and supra-state evolutions. Perroux insists on demonstrating that a state socialisation can only be realized on one's own state territory. Despite capitalist or socialist internationalisation, social struggles have so far developed within the sphere of each individual state, and their social institutions and organisations have so far been different. For international capitalist enterprises and apparatuses, too, socialisation has different effects in different countries. The large extraordinary premiums on the legal possession of the power of the status quo, the stabilising effect of any legislation (of the uti possidetis of the praetorian edict) benefit those parties and organisations which are in power in the states at the time of the legislation. This is naturally inevitable, but it also shows to what extent the legality of a world revolution remains a question of the plurality of particular state legalities¹¹.

Perroux speaks in this connection of an appareil de production [an apparatus of production] and of the prise [taking] of such an apparatus. For the discussion in German, I have proposed the word lndustrienahme — takeover of industry — using a formula from the time of the German Reformation: cujus regio, ejus religio [whose realm, his religion]. At that time, in the 17th century, this meant a way out of confessional civil wars, in the form of an itio in partes [going into parts]. The reigning prince determined the religion of his country's population. This political practice gave rise to the national unity of France as a nation state and the national disintegration of the German Empire into a few large and many small states. The sovereign, i.e. the government of each territory, determined, like a feudal lord, what was to be law and ecclesiastical faith in its territory. According to this principle, the various large and small German countries chose between Rome, Wittenberg and Geneva. The basic rule was strict parity.

In an age of rapid industrial development, it is no longer a question of theological alternatives such as Catholicism, Lutheranism, or Calvinism. Today it is a question of the political system of society that is best suited to scientific-technical-industrial development: a liberal-capitalist, or social-communist, or liberal-socialist system, with corresponding methods of accelerating or, if necessary, slowing down industrial progress. Even today, the industrial world is still divided into more or less autonomous states. State and nation do not always coincide. The specific economic-industrial structure determines the problem. Instead of the now obsolete confessional-religious-theological question, today the adage prevails: cujus industria, ejus regio [whose industry, his religion] or cujus regio, ejus industria [whose realm, his industry]. Because industrial progress brings with it its own notion of space. The previous agrarian culture derived its categories from the land, from the soil. Its conquests were land-grabs, because land was its real objective. England, the country of origin of modern industrialisation, moved in the 17th and 18th centuries to a maritime existence, and dominated the “free” sea (free because it was without limitations and boundaries of land). This is how she took the sea, Seenahme. Today we are in the age of industrial seizures, Industrienahme. Only and exclusively the possession of a large industrial space allows today the seizure of the universe, Weltraumnahme¹².

We can imagine the political unity of mankind on our planet being achieved through the victory of one industrial world power over the other or through the union of the two in order to subdue politically the entire industrial potential of the earth. This would be a planetary industrial takeover. It would differ from the old methods of conquest — seizure of land and seizure of sea — only by an intensified aggressiveness and by the greater destructiveness of the means of power employed. Here the gulf separating the ethical and moral progress of mankind from industrial and technical progress opens up. Universal politics comes to an end, becoming universal policing; a dubious progress. From an operational, strategic or tactical point of view, legality becomes a political and practical problem of the first order. Industrial society is subject to a rationalisation which also implies the conversion of law into legality. In terms of its persistence and functioning, industrial society is highly sensitive to disruption, violent interruption or even sabotage. Whoever works legally is neither a disruptor, nor an aggressor, nor a saboteur. Legality reveals itself as an inevitable modus of any revolutionary change.

4. TWO EXAMPLES OF PRE-FASCIST SUPER-LEGALITY: FRANCE AFTER 1871 AND GERMANY AFTER 1919

Despite the universal spread of modern ideologies of progress, all roads to attempt a world legal revolution lead to the State. A professional revolutionary like Carrillo saw this clearly. Universal political progress towards unity cannot do without the great possibilities of state legislation. Naturally, it continually stumbles into the gorge of state legality and a state Constitution to which it has to adapt itself as long as it does not succeed in changing it. The drive towards supra-state spaces of industrial development has so far not led to the political unity of the world, but to three major established spaces: the USA, the USSR, and China. Only the two atomic superpowers are large developed industrial areas that have established themselves politically and respect each other and do not allow any intervention by other powers. Thus, world politics becomes the politics of world equilibrium. The state gorge, which progress encounters within such large spaces, is to some extent overcome, as it is within a confederation of states or a federal state. But there remains a third large space: the so-called bloc-free space, which preserves a certain freedom of world political movement for the states that belong to it. The states in this space can have their own politics and even their own wars, such as the Vietnam War, or the war in the Near East between Israel and the Arab States. This gives rise to particular problems and dangers. The third space becomes a conflict zone for opposing political and military interventions from the three major established spaces, which have been recognized as such since the Yalta Conference (1945).

A state that wants to oppose the influence or interference of supra-state powers and their ideas of progress can narrow the gorge for legal interventions if it tries to make its Constitution defensive and more resistant to outside influences. In parliamentary states with a party system and a flexible constitution, internationally oriented or even internationally-led radical parties have a better chance of breaking through, because an absolute majority of votes, 51%, is enough to pass a constitutional law. This facilitates structural changes of the constitution, not only for progressive but also for reactionary laws; but there is a specific possibility anyway. The complication of constitutional change is often an obstacle for new progressive parties. When establishing these complications (i.e. the requirement of a qualified majority of two-thirds of the votes) one must always ask about the political enemy one wants to hinder or close the door of legality.

After the First World War, the Fascist revolution of 1922 created a new constitutional problem, which had already arisen as a result of industrial development. It no longer refers to an alternative of state forms: monarchy or republic. The monarchy is even retained and helps to legalize the new form of constitution. Opposing views of social, industrial, or political progress compete with each other. It cannot be denied that fascism has favored and accelerated technical progress, even if its motives, aims, and political methods are considered reactionary and atavistic. In what follows we will compare two different styles of state-republican self-defense against interventions of supra-state forces and revolutionary ideas of progress. These are precisely two different models of “super-legality.”

The defense of the French Republic as a state form was regulated in the constitutional law of August 18th, 1884. This law is an instructive example of the French style, compared to the German model of the Weimar Constitution, which was predestined to be a victim of Hitler's legal revolution. A constitutional law of 1884 defends the French Republic in an abstract manner and with the help of a provision that is limited to a procedural rule. The law mandates that not even a motion seeking to abolish the Republic as a state form can be submitted through the constitutional revision procedure. La forme républicaine du Gouvernement ne peut faire l'objet d'une proposition de revision [The republican form of government may not be the subject of a proposal for revision]. This goes against any enemy of the Republic; but, in the concrete situation of 1884, the law had a very specific internal enemy in mind: the legitimate monarchy. Not so directly it thinks of another potential enemy: Bonapartism. These two enemies remained within the usual framework of traditional ideas about politics and the Constitution. They were pre-fascist phenomena. It will be objected that Bonapartism was an avant-la-lettre fascism. But this is true only from the angle of a constitutionalism which does not focus on anything other than the classical problem of the division of powers and its abolition by a dictatorship. For us it is a transformation of ideas, which is so typical of rapid evolutions.

The example of Germany is from 1921 to 1929. It consists of a series of rather complicated laws and decrees which make a careful effort to not completely close the way to legal political power. In fact, they did not dare to openly exclude the possibility of a restoration of the monarchy via Article 76 of the Weimar Constitution (approval by the Reichstag and the Reichsrat with a qualified majority). The motives for this complicated normativism of protection had been two political assassinations: that of Erzberger on August 26th, 1921 and that of Walther Rathenau on June 24th, 1922. This German way of protecting the Republic arose in a state with a highly developed industrial society, which sought to carefully respect the principles of a liberal constitutional state. The bulk of the Republic's protection consisted of criminal and bureaucratic provisions. It went so far as to set up a State Court for the protection of the Republic by ministerial decree, but this was a special court and not a supreme constitutional court. The entire protection was limited in time, for by a law of July 2nd, 1927 the jurisdiction of the State Court was transferred to the Supreme Court of the Reich. Its limited duration ended in June 1929, because by this time there was no longer a parliamentary majority for an extension. A year later, in September 1930, the electoral victory of the Hitler movement had fundamentally transformed the situation in German domestic politics.

I have taken the time to explain this case of the protection of a public constitution, which even for jurists is somewhat complicated, in order to emphasise the difference with the French solution of 1884 in the face of the alternative of the Monarchy or the Republic. The legal-constitutional problem involves the question of the enemy who is to be prevented from entering constitutional legality. Immediately after the assassination of Walther Rathenau on June 24th, 1922, Reich Chancellor Joseph Wirth of the Catholic Zentrum party had exclaimed in the Reichstag: “This enemy is on the right!” A paragraph from Gustav Radbruch's speech at an event to celebrate the constitution on August 11th, 1928 shows how strong this feeling was in the Social-Democratic party:

“A Constitution is like a flag. The more it is broken by sword blows, the more it is pierced by bullets, the more honor and sanctity it contains. There is an old superstition which believes that a house can only last if something living is enclosed in its foundations. How much life has been enclosed in our Constitution!”

Despite this statement, it was not considered necessary to put, in the place of a criminal defense of the state, a republican form of state protection, such as, for example, voting for a constitutional law prohibiting the restoration of the monarchy. The path of legality remained open to the enemies of the Republic, and this corresponded to the idea of the constitutional state which then prevailed in Germany.

5. HITLER'S LEGAL REVOLUTION FROM 1933 TO 1945 AS A PRECEDENT

In the political consciousness of the great majority of the German bourgeois electorate at that time (1928), the left-right alternative corresponded to the pre-fascist alternative Monarchy-Republic. The Marxist working-class masses, however, chanted in their demonstrations: “We don't care about the Republic, we want socialism!” In September 1930, at last, the emergence of the National Socialist movement made the problem of a monarchical state a secondary issue. All in all, Hitler knew how to keep the half-light of secondary importance very well and exploit it. Even Emperor Wilhelm II, living in his Dutch exile, felt a certain sympathy for National Socialism, and for some time was of the opinion that Hitler “did his job very well.” Reich President Hindenburg, an upright old man, was firmly convinced that his oath to the Weimar Constitution was perfectly compatible with his previous oath to his sovereign. In his mind he never ceased to be a monarchist. According to the general opinion about the Weimar Constitution, this attitude was perfectly legal. Heinrich Brüning (1930-32), a man of character and absolute loyalty, remained a monarchist when he became Reich Chancellor, and thought of legal procedures to restore the monarchy. In his memoirs, published later in 1970, he expressed himself so naively on this subject that some of his admirers were perplexed. The door to legality was thus open to the right as well as to the left, to the monarchy as well as to the liberal, socialist, or communist republic.

The National Socialist movement anticipated this problem situation in every respect. My own legal attempts to solve the problem of the never-closed door of the Weimar Constitution by means of a reasonable interpretation of its revision provisions (Art. 76) failed because of the skeptical or ironic attitude of its interpreters.

Hitler even managed to turn the narrow gate of legality into a triumphal arch for his entry into Potsdam and Weimar. From the first day of his appointment as Reich Chancellor, he knew how to systematically and unscrupulously exploit the political premiums on his legal possession of power. His appointment as Reich Chancellor was only the first step in an escalation of successive legal revolutions. Immediately after January 30th, 1933 he had the Reichstag dissolved. Two days later, on February 2nd, 1933, he issued an emergency decree under Article 48 of the Weimar Constitution, which put an end to the indescribable chaos that had resulted from the ambiguous judgement of the Supreme Court on October 25th, 1932, without the defenders of the Constitution protesting or even daring to say a word. On March 5th, Hitler achieved a relatively favorable election result for his party through legal, paralegal, or other electoral maneuvers, such as, for example, the propaganda exploitation of the Reichstag fire. In any case, the result was sufficient. Just three weeks later, on March 24th, 1933, the German Reichstag granted him with a qualified majority (necessary to change the constitution) astonishing full powers. This power was in reality an unlimited authorization to change the Constitution. It was a second legal revolution.

In short, Hitler knew how to close behind him the door of legality through which he had entered, and legally pushed his political enemies into illegality. If they tried to resist, or even to force entry through the closed door of legality, they could be treated as agitators and criminals. Apart from a few experienced communists, everyone felt disillusionment and indignation at discovering so drastically the political premiums on the legal possession of power. The famous case of Hitler's revolutionary legality involves the escalation of a whole series of such revolutions.

To this day there is no exact and complete study of the coming to power in 1933 and its step-by-step extension up to 1939. The installation to power in 1933 could only be successful if it was approached as a national revolution. Already in 1939, Hitler was confronted with the problem of power in a large industrial area, which meant a new escalation of the problem of legality. The methods and tricks that had enabled him in 1933, in an astonishing way, to bring about a national revolution, suddenly, in 1939, did not work. The third escalation on the road to the legality of a world revolution was doomed to fail from the outset as a probability of success and a considerable chance. The origin and backbone of Hitler's movement was nationalism. But German nationalism at that time (1919-1945) involved the most contradictory tendencies of right and left, including elements of a national-Bolshevism. At the core of this national mix was an even more elemental and intense force: the revanchism born of the humiliation of Versailles from 1919 onwards. This was the real fighting force of Hitler's movement. Hitler turned it into an instrument of his own terrible revanchism¹³. Despite all traces of racist ideology, the struggle against Versailles is the essential impetus for Hitler's successes between 1919 and 1939.

In 1940, the revenge had been achieved. The national war, which had been lost in 1918, had been won. It was an overdue victory. The world war manifested itself in all its reality when Hitler took the very serious decision in 1941 to attack the Soviet Union. For three centuries the Germans had never ceased to live under the gaze of the Russians, sous l'oeil des Russes [under the Russians' eye].

It is only logical that after the defeat of Hitler's regime in 1945, every effort was made to avoid a repetition of such an extraordinary case. This explains why the Bonn Basic Law of May 23rd, 1949 regulates a change of constitution. This lex fundamentalis presents itself as the constitution of a social, parliamentary-democratic, federal and pluralistic constitutional state. It is adapted to an industrial, technically and socially highly developed society whose advanced potential was made manifest to the whole world by the “German economic miracle.” From this point of view, the new German constitution belongs to a post-fascist era. It does not only attempt to narrow the gorge of legal access to political power, but to close it off completely for certain political parties and purposes.

The Constitutional Court in Karlsruhe, which has jurisdiction in this matter, has so far banned two political parties with legal force: a small radical right-wing party, the Sozialistische Reichspartei (judgement of October 23rd, 1952) and the Kommunistische Partei Deutschlands (KPD, judgement of August 17th, 1956)¹⁴. The first ruling can be said to have made a finite cause politically. The second case is more complicated, because, despite the ban and its legal force, a new communist party appeared under the name Deutsche Kommunistische Partei (DKP), and openly and publicly engaged in its political activities.

In view of this situation, it is difficult to speak of a finite cause. The reasoning of the judgement is all the more interesting because it justifies the banning of the KPD with an abundance of historical, ideological, and legal arguments. It is probably the most voluminous judgment in the history of law to date. The official text of the judgment fills a tome of more than 300 pages. And the basic arguments of the judgement are immediately binding. The blatant contradiction between the claim of absolute normative validity and the very relative political outcome of this judgement reminds us of all the problems of a gouvernement des juges and of indirect or even apocryphal super-legality.

6. HUMANITY AS A POLITICAL SUBJECT AND HOLDER OF A CONSTITUENT POWER

The problem of a world legal revolution leads to a whole series of national and state revolutions. From this results an authentic dialectical relation between the world revolution and all the national-state revolutions. We have commented on this mystery of a legal world revolution on the basis of an idea of François Perroux.

Progress towards the legal world revolution is not accompanied by a parallel political will towards the political unity of Europe or even towards a European revolution. Whoever delves into the more than a thousand pages of H. P. Ipsen's seminal work¹⁵, comparing this masterly exposition of legal efforts over decades with their political outcome, will be deeply saddened. The forces and powers of world politics fighting for the political unity of the world are stronger than the European interest in the political unity of Europe. Even some “good Europeans” expect the political unity of Europe only as a by-product (not to say waste product) of a global political unity of our planet. The revolutionary energies pushing towards a world revolution are much stronger and more active than the tendencies towards a specifically European revolution, which we can hardly imagine today. The regional separations of an existing national-state unity, which are so topical today, are understood and united, over the heads of national units, rather with the force of the world revolution than with a European revolutionary movement, if such a movement exists. The legality of a European revolution would have to presuppose the existence of a European patriotism to be able to form a constituent assembly in the sense of the European constitutional tradition. It would be possible to imagine this in the case of England ceasing to be an island. There are multiple plans and projects for a European constituent national assembly. They all follow the path of the existing European nations and states and take them as a basis.

A world legal revolution, however, would have to be based on what Hauriou and Perroux have called patriotisme de l'espèce, in order to create the political unity of mankind. This means, literally, a patriotism of the human race¹⁶. The expression recalls the universalist system of the philosophy of Auguste Comte, whom Hauriou greatly admired, albeit with critical reservations. But the word “genus” no longer seems to us to sound as idealistic as it did to the philosophy of German idealism. Karl Marx asked himself about death and the immortality of man, a subject he is not usually fond of, and he answers with an observation about the human race:

“Death seems like a hard victory of the genus over the individual, and seems to contradict its unity; but the determinate individual is only a determinate generic being and, as such, immortal.”

Each one of the billions of men is a man and a parcel of humanity. Every day thousands die and thousands are born. Every day humanity as a whole changes its face. It is never “all together.” By what right do the men of today impose a Constitution on the men of tomorrow? Already the enlightened revolutionaries of the 18th century were aware of the problem, and included in their Declaration of Human and Civil Rights of June 24th, 1793 a phrase fraught with problems:

“One generation cannot subject future generations to its laws.”

Despite this, French legal theory made its notion of pouvoir constituant the precondition and legitimization of all pouvoirs constitués. With overwhelming success it has created ideal types of legal forms and procedures which are valid for all democratic constitutional theories, for example, the convocation of a constituent assembly, and the proclamation of human and civil rights. In this formal aspect, it had a more juridical character than the American proclamation which precedes it. The American proclamation feels as alien to the idea of a state person, in the sense of continental-European state thinking, as it does to the classical continental-European state itself, as well as to the ensuing relationship of state and society. The specifically French legalistic form of thought of the Abbé Siéyés has transferred Spinoza's theological-political relationship of Natura-naturans versus Natura-naturata to the legalistic relationship of pouvoir constituant versus pouvoirs constitués, created by him, and thus determined the conceptual structure of the written Constitutions. In this way he created an example of political theology that has only been surpassed by Max Weber with the impact of his theory of charismatic legitimacy.

The esoteric nature of such intense political-theological reflection is harsh, and humanity today cannot be expected to follow such reflections. Somewhat more plausible became the esoteric formulas which help to manipulate and put into political practice those complicated relationships, especially the relationship between pouvoir constituant and pouvoir législatif. Every professional revolutionary has learned to manipulate them: the existing legal government is removed, a provisional government is proclaimed, and a constituent national assembly is convened. In this way, the great French revolution became an arsenal of legal-constitutional precedents. Over the course of two centuries, through many great and small revolutions, European and non-European, a legitimizing habit has been formed with the legalization of coups d'état and revolutions. Even for the intermediate revolutionary phase of dictatorship, the French model has been credited. Friedrich Engels was asked how the dictatorship of the proletariat was to be imagined, and he answered: as in 1793. Lenin and Trotsky practiced it in November 1917, with the greatest success. Engels, however, also sees the possibility of the road by the 51% majority in parliament. Today, this path has been made more difficult in many new Constitutions by the super-legality of constitutional norms; but this does not mean a major abolition of the formal model of written Constitutions, as long as total immutability is not established.

In practice, however, it is almost impossible to imagine the transmission of constituent power from the nation to mankind. It may be that the land today is smaller than France was in 1789. However, the new technology serves not only centralization, but also resistance against it. Today's organisation for peace in the world serves not only the unity but also the status quo of its many sovereign members. Or are we to imagine a UN General Assembly or at least a session of the World Security Council similar to the night of August 4th, 1789, when the privileged solemnly renounced their feudal privileges? This renunciation, by the way, would still require a decade of bloody civil war within and without, until it was practically realized, de facto. Would it be possible for the superpowers to dispense with their hegemonic supremacy and their bases? And where are these bases? Will the nuclear potential be sunk in the ocean, leaving no remains? Or will it be transported to the moon? Are we to believe that all states, large and small, will open their production secrets to world publicity without open or silent reticence? Will they open their archives and present their secret records in order to initiate a gigantic trial against the enemies of mankind?

Humanity as such and as a whole has no enemy on this planet. Every man belongs to humanity. Even the criminal, as long as he lives, has to be treated as a man. When he is dead, like his victim, he no longer exists. Then he is suspended, like his dead victims. But until then he remains a human being, good or bad, i.e. a bearer of human rights. “Humanity” thus becomes an asymmetrical concept. If one discriminates within humanity, if one takes away the quality of man from the negative, the harmful, the disturbing, then the man judged in this negative way becomes a non-man, a non-person (Unmensch, Unperson), and his life is no longer the supreme value. His life becomes a non-value that must be destroyed. Notions such as man thus contain the possibility of the deepest inequality and become “asymmetrical.”

Reinhart Koselleck has clarified the great problem of a “patriotism of humanity” with a very impressive explanation of ideas, even for a jurist accustomed to handling ideas. His work¹⁷ has as its epigraph a sentence from Civitas Dei (XV, 5):

“Good and bad fight each other; so do the bad fight each other. The perfectly good cannot fight each other.”

Koselleck examines three pairs of concepts from universal political history about their dualistic linguistic structure, and shows how they became “asymmetrical;” that is, through series of negative judgements they polemically discriminated the adversary unequally: Hellenes and barbarians, Christians and pagans, and, finally, man and non-man, super-man and sub-man. The potential for linguistic argumentation, which is acquired by starting from man and humanity, leads in its conceptual figures to a very intense asymmetrical structure, which far exceeds the disintegrating force of Hellenes versus barbarians or Christians versus pagans. The man who fights against man sees himself in his self-understanding against an undoubtedly inferior object of comparison, and he himself stands out all the purer as the true man.

We can fear an end result reminiscent of a tale from the 19th century. A ruler is dying on his deathbed. His spiritual father asks him, “Do you forgive your enemies?” And the ruler replies, with the best conscience in the world, “I have no enemies; I have killed them all.”

1. Santiago Carrillo: Eurocomunismo y el Estado. “Eurocommunism” as the ideal revolutionary model in the developed capitalist countries. Madrid, 1977.

2. The German word meint in the two definitions of legality and legitimacy is etymologically the same as the English word means: to mean something, or to mean indicate a certain thing. The word ist, which was hitherto commonly used in German definitions of concepts, has unfortunately been semantically abused. The deepening of the word in the words of Sein and Seyn and Seiend has left something imprecise for legal science.

Max Weber's definition means, in its scientific assertion, a value-free reduction of values (in the sense of the then neo-Kantian theory of knowledge); three reductions equally free of valuation — obedience, obligation, and possibility — are lumped together in a verbal and conceptual agglomeration.

3. Ion Contiades: Verfassungsgesetzüche Staatsstrukturbezeichnungen. Res publica, Beitrage zum offentlichen Recht, Heft 16, Stuttgart, 1967.

4. As an example of the practical application of the Constitution, see Ernst E. Hirsch: Menschenrechte und Grundfreiheilen im Ausnahmezustand. Eine Fallstudie über die Tatigkeit und die Agitation “strikt unpolitischer” internationaler Organisationen, Berlin, 1974.

5. Maurice Hauriou: Précis De Droit Constitutionnel, 1923, p. 379.

6. Robert Leicht: Süddeutsche Zeitung, 19 April 1978.

7. François Perroux: L'économie du XXe siècle, 1969, p. 390.

8. I regard the expression “side effects” as a misleading and anti-scientific trivialization. It is merely an evasion of the problem of the threatening consequences of scientific progress, because modern science is axiologically neutral, pure, and value-free. The German word Wert comes from the terminology of the representatives of the philosophy of values. For them, value freedom is the supreme freedom and the supreme value. It is not permissible to isolate value-free science and technology, otherwise free from valorisation, from the qualification of their results, so that the results of the science and technology syndrome also benefit from the privilege of value freedom and value neutrality. If the industrial products of such a syndrome are judged by criteria other than good or bad, desirable or undesirable, and if bad and undesirable consequences are then to be nothing more than “side effects,” this is a scientifically unacceptable underrepresentation. Environmental pollution is environmental pollution, even if great physicists and Nobel Prize winners have contributed to this result. I am grateful for this clear view when I read Rainer Specht's book Innovation und Folgelast; Beispiele aus der neueren Philosophie und Wissenschaftsgeschichte. Problemata Collection, Verlag Frommann-Holzboog, No. 12, Stuttgart-Bad Cannstatt, 1972.

9. François Perroux: Aliénation et Société industrielle, N R F Idees, No. 206, Paris, 1970, p. 180.

10. Marx-Engels edition by David Riazanov, vol. 1, Frankfurt a. M., 1927, p. 125.

11. See François Perroux: Masse et classe, Collection O. M., no. 22, Castermann, Paris, 1972, pp. 161-162.

12. Carl Schmitt: Der Nomos der Erde im Völkerrecht des Jus Publicum Europeum, Berliin, 1974. In this book I refer, on all the decisive points concerning the development of large industrial and economic areas, to Maurice Hauriou (see, for example, pp. 175, 183, 207, 216-217, 229). Also, my essay, Nehmen / Teilen / Weiden, in Revue internationale de sociologie I, Rome, 1954, and in Verfassungsrechtliche Aufsätze, Durcker & Humblot, Berlin, 1958, 2.º ed., 1974, pp. 488-504.

13. On Hitler's revanchism, see the imaginary conversation with Georges Sorel in Jesús Fueyo: La vuelta de los budas. Ensayo-ficción sobre a última historia del pensamiento y de la política, Madrid, 1973, p. 186.

14. Rulings of the Bundesverfassungsgericht, Vol. 2, p. 1, 1979; Vol. 5, pp. 85-393.

15. H. P. Ipsen: Europäisches Gemeinschaftsrecht, Tübingen, 1972.

16. A semantic remark about the word “patriotism of the species” (patriotisme de l'espèce). When French authors speak of patriotism, they usually stick to the national-state tradition of their homeland and its corresponding ideas of liberty. This is true for Auguste Comte, for Hauriou and Perroux. In Germany, however, the terms Patriotismus and Patriot sound almost reactionary for progressive thinking, too paternalistic. The difference can be explained by the fact that state and nation have been congruent in French conceptual language, whereas in Germany they have always been distinguished. Notions such as Staatsangehörigkeit and Nationalität, Verstaatlichung and Nationalisierung, Staatsgefühl and Nationalgefühl could and can contradict each other and constitute a conflict for the loyal German. Hauriou in particular has no doubts whatsoever about the congruence and synonymity of the two words. He follows the terminology of his nation, and has explained this in detail in his Principes de droit public (1910 and 1919) and in his Précis de droit constitutionnel (1923).

After all, the current world organisation of the UN calls itself the United Nations and not the United States, regardless of what the various admitted members actually are. The question arises whether the UN, in the thirty-five years of its existence, has produced any kind of “patriotism.” As for Marxist ideology, the question is superfluous. A species of self-created men, according to Feuerbach's thesis 11, would be a society without fathers.

17. Reinhart Koselleck: Zur historisch-politischen Semantik asymmetrischer Gegenbegriffe, Poetik. und Hermeneutik VI, Wilhelm Fink Verlag, München, 1975, pp. 65-104. The collective volume edited by Harald Weinrich is called Position der Negativität.