Carl Schmitt on enabling legislation and the case of the Free City of Danzig: A legal opinion of 1935

In the spring of 1933, the newly formed National-Socialist majority in Danzig issued an Ermächtigungsgesetz which was meant to be the legal basis of the dismantling of liberal democracy. Unlike the German Reich, however, here this process was met with resistance due to a surviving political opposition and to the international status of the Free City. In a legal opinion submitted to the Council of the League of Nations, Schmitt argued for the constitutionality of the enabling law by deploying concepts developed in the Weimar era in a subtler strategy suited to buttress the Nazi take-over in Danzig. Defending the constitutional right of government to curtail the rights of political opposition in a state of exception, Schmitt actually justified the not at all provisionary, but revolutionary policies of the party in power. Behind this legal opinion was a theory of an epochal, world-wide transformation of constitutional orders overcoming the principle of the separation of powers itself.

The § is Dead, Long Live the §! A History of “the Paragraph” in the Third Reich

In 1933, Prussian Minister of Justice Hanns Kerl founded a training camp for German law students. In the middle of the camp, he set up a miniature wooden gallows from which a paragraph-sign was hung. Kerrl’s symbolic assassination of law epitomized Nazi boorishness and anti-intellectualism. But unease about the paragraph, I show in my paper, long preceded the Hitler years. Following the Civil Code’s coming into force, free lawyers and other legal modernists had cast doubt on whether its narrowly circumscribed provisions could capture Wilhelmine realities. Among these critics was Justus Wilhelm Hedemann who went on to pursue a curious project in the Third Reich. As part of a private law modernization committee affiliated with the Academy for German Law, a Nazi legal think tank, he was in charge of drafting a new People’s Code that was to be both literally and figuratively paragraph-less. My paper tells the story of this project.

The Mysterious Meeting between Carl Schmitt and Josef Redlich

In 1934, Carl Schmitt, then the crown jurist of the Third Reich, wrote in an essay titled National Socialist Legal Thought about “[a] conversation with a world-famous, world travelled, experienced scholar of more than seventy years of age from the United States [which] belongs to the major experiences and encounters which led me as a jurist to National Socialism.” Schmitt never disclosed the identity of the scholar whom he met. Based on Schmitt’s diaries, I reveal that the scholar was Josef Redlich. Born to a Jewish family in 1869, Redlich was the Fairchild Professor of Comparative Public Law at Harvard Law School at the time he met Schmitt in 1931. Based on an analysis of the 1934 essay and various other materials written both by Schmitt and Redlich, I offer three possible explanations for why Schmitt viewed his encounter with Redlich as so influential on his road to National Socialism.

Carl Schmitt on enabling legislation and the case of the Free City of Danzig: A legal opinion of 1935

In the spring of 1933, the newly formed National-Socialist majority in Danzig issued an Ermächtigungsgesetz which was meant to be the legal basis of the dismantling of liberal democracy. Unlike the German Reich, however, here this process was met with resistance due to a surviving political opposition and to the international status of the Free City. In a legal opinion submitted to the Council of the League of Nations, Schmitt argued for the constitutionality of the enabling law by deploying concepts developed in the Weimar era in a subtler strategy suited to buttress the Nazi take-over in Danzig. Defending the constitutional right of government to curtail the rights of political opposition in a state of exception, Schmitt actually justified the not at all provisionary, but revolutionary policies of the party in power. Behind this legal opinion was a theory of an epochal, world-wide transformation of constitutional orders overcoming the principle of the separation of powers itself.

Mobilizing the Western tradition for present politics: Carl Schmitt’s polemical uses of Roman law, 1923–1945

In my presentation, I argue that Schmitt’s different ways of narrating the modern reception of Roman law disclose, first, the Nazification of his thought in the spring of 1933, and second, the partial and apologetic de-Nazification of his thinking in the 1940s. While Schmitt’s Weimar-era works are defined by a positive use of Roman imagery, ranging from Schmitt’s support to the Catholic Church to his endorsement of Benito Mussolini’s ‘total state’ in Italy, Schmitt’s Nazi writings from 1933 to 1936 describe the reception of Roman law as an anti-German virus that must be overcome by the Nazi movement. This shift mirrors Schmitt’s transformation from an authoritarian thinker sympathetic to Italian Fascism into a devoted Nazi. However, once Schmitt begins to see that Germany will lose World War II, he recalibrates his position.