The Question of Legality (1950)

3,544 words

Translated by Simona Draghici

The Reverend Oratorian Father Laberthonnière, who died in 1932, left behind the voluminous work of a lifetime, which is being edited by his friend Louis Canet. Between 1933 and 1948, six impressive volumes were published. Quite recently, another book of his was added to them, and which is of particular interest to us, namely, a Critique of the Notion of the Sovereignty of the Law.[1] Father Laberthonnière critically examines the widespread notions of the supremacy of the law prevailing in moral theology, philosophy, and in jurisprudence, and which go back to and reach their acme in a well-known saying of Aristotle’s, namely that “not men but the law” must rule. To this, the learned Oratorian opposes the assertion that men stand directly behind every earthly law and that they use the law as a means of their power.

In his criticism, Father Laberthonnière goes very far. “La maxime: ‘c’est la loi,’ ne differe en rien au fond de la maxime: ‘c’est la guerre’” [The saying: “that’s the law” does not differ in any way from the saying “that’s war”]. This connection made between law and war is in fact surprising and sounds quite radical. The knowledge on which it is based can be grasped only as the bitter fruit of the experiences of civil war. This formulation by the Oratorian Father should serve as an opportunity to reflect on some historical, moral, juridical, and sociological experiences of the last few decades.

I.

Why did the German civil service follow Hitler? The problem of culpability need not be stirred anew nor other attempts at exculpation be made by raising this question. We address the general and practical problem of legality which is highly topical and by no means of concern only to the German civil service. We are not dealing here with individual cases, but rather with the overall sociological situation of a broad circle of people. On the other hand, within this circle which includes hundreds of thousand people, there is in particular the matter of a leading and commanding layer, namely, the ministerial bureaucracy, the product of the higher civil service.

Many higher- and lower-ranking civil servants had sympathized with Hitler and his movement from before 1933, more exactly, since his big electoral success of 1930. The motives of the sympathizers were numerous and diverse. Partly, they rested on the national watchwords disseminated by Hitler, and partly on status and class interests. The German civil service, in general, and the higher- and highest-ranking civil servants, in particular, feared no harm from Hitler to their overall social and economic existence. This overall existence, however, had a twofold foundation: the traditional German State of the civil service with its well-earned rights, and an influential higher, ministerial bureaucracy. Both foundations—that is, the well-earned rights of the civil servants and the strong position of the higher, ministerial bureaucracy—had attained an astonishingly high point in the last years of the Weimar Constitution. The Weimar Constitution had explicitly guaranteed the well-earned rights of the civil servants. Through the practice of decrees, in virtue of Article 48 of the Constitution, the higher ministerial bureaucracy had become legislative. The decree had ousted the law. The legislation was “mechanized” through simplifications and precipitations. Every mechanization of the legislative procedure, however, meant a power increase for the bureaus in which the decrees were worked out.

The majority of the civil servants feared no harm from Hitler either to their well-earned rights or to the position of power of the German civil service as a whole. Many believed his repeated assurances and even held him for the rescuer of the principles of the traditional German career civil service. All of them feared an open civil war and saw Hitler’s protestations of legality as a shield against the civil war. At that time only very few suspected the danger that a totalitarian party system must represent for the traditional German State of the civil service. Hitler too did everything to maintain this unsuspectingness. His eulogies of the German civil service in his book Mein Kampf, the program for a restoration of the German career civil service, and the organization of the NS association of civil servants, all served that aim. Decisive, though, were the solemn declarations of legality, in particular the famous oath of legality at the Scheringer trial in 1930.[2] Already at that time the issue of legality had turned out to be the key to the problem of state-related power in Germany. Likewise, in the notion of legality one finds the true answer to our question: why did the German civil service follow Hitler?

Because in the eyes of the German civil service, Hitler’s seizure of power was not illegal. Nor was it so for the large majority of the German people, and equally so for the foreign governments which continued to maintain diplomatic relations without considering it necessary to proceed to a new recognition, according to international law, which would have been necessary in a case of illegality. Likewise, there was no German government in opposition to Hitler. Such a government materialized neither on German soil nor as a government in exile. The so-called Enabling Act of March 24, 1933 removed all the misgivings and had the effect of a great general and sweeping legislation, and in fact, retrospectively, both for the events of February and March 1933 and for all the actions to come. The factual and sweeping legalizing effect of the Enabling Act was therefore so comprehensive because Hitler and his following were confirmed in their effective possession of power by a constitutional amendment voted by Parliament. Thus every legal path to a cancellation of the seizure of power was blocked. All that remained was the feeble hope that the Reich President Hindenburg might still be in the position to dismiss Hitler and appoint another Reich Chancellor. But since the fear of a civil war had been such a strong motive to submit to Hitler, the hope of Hitler’s dismissal by Hindenburg did not make much sense, because everybody knew that the attempt to remove Hitler would have unleashed an even more dangerous civil war.

It has been established in the judgment of the Nuremberg International Military Tribunal of October 1, 1947 that “In 1934, all power was in Hitler’s hands.” This statement is of the greatest importance for our problem. Thereupon, it follows for every positive idea of legality that Hitler’s power was by far more than just legal in itself, it was also the source of all positive legality.

The law of January 26, 1937 concerning the German civil servants concealed its totalitarian poison,[3] particularly in the general reservation of §71 on party-politics, under detailed definitions and guarantees of the legal position of German civil servants, in accordance with the traditional principles of the career civil service. Starting with the end of August 1939, the last remnants of a moral resistance on the part of the German civil service vanished as a result of the war. Firstly, because of the self-understood invocation of the necessities of a total war, and secondly, because the concentration of all state power in Hitler’s hands reached its maximum degree at the time. Legislation, administration, and justice functioned with new simplifications and precipitations, always unrestrained, as command machines. In the last years of the war, a new concept came into being in the sphere of food supply: the “disposition” [Anordnung], the essential feature of which rested in the fact that if the ruling represented a mechanized law, the “disposition” [Anordnung] was a mechanized ruling. The general mechanization is characteristic of the unmixed functionalism of this machinery.

Oddly enough in 1942, a fit of the need for legitimation suddenly seized Hitler himself, in fact not only in the sense of his own positivistically absolute legality, but also as a kind of democratic legitimacy. At that time, it was revealed in two strange explanations. A clarification of the Reichstag of April 26, 1942 acknowledged that in time of war Hitler had the right to interfere in the well-earned rights of the civil servants (as if in such a total war and in such a system no other demands for rights had been granted but only those of the civil servants). An explanation of May 10, 1943 by Hitler himself renewed the Enabling Act of March 24, 1933. Both explanations are simply incredible in the confusion of their inner contradictions. They prove all the more clearly that ultimately Hitler himself was interested in a certain legitimation even more than the machine functioning according to the concept of the positivist law, and which obeyed him as the holder of State power and the only source of legality.

II.

Our analysis keeps running into the notion of legality which lies at the core of the problem. There lies the key to an understanding of Hitler’s regime, at least to the extent it deals with the specifically state-related aspect of his power. Beyond that, it tackles a wholly important question of modern development. Here we are talking not of the lawfulness or the unlawfulness of countless isolated orders, but about the problem of the functioning of a regime as a whole. It is a highly topical sociological problem which deserves fully to be treated with all objectivity.

In order to do just that we must become aware of an extraordinary difficulty. It resides in the fact that the word “legality” acquires a distinctive, rather specific meaning in a modern, thoroughly organized State entity. It is only from this point of view that one can, grasp the history of the German civil service since 1918. The legality in question here does not mean a merely external, purely formal, purely juridical accompaniment. It does not refer to the question of law and justice under the aspect of their contents, either. It is also to be distinguished from legitimacy, whether in a conservative or a revolutionary sense. Nowadays, the words “legal” and “legality” can mean everything that the word “lex” somehow conveys; and this word lex has an altogether different content at different times, and in different countries, in different constitutions and for different organizational forms of legislation and administration of justice. Hence we must seek to some extent to overcome the almost Babylonian confusion of speech that prevails here.

In a modern system, that is to say, an industrialized, thoroughly organized system, endowed with a division of labor and highly specialized, legality means a specific working and functioning method of the public body. The manner in which affairs are decided, the routine and the habits of departments, the somewhat calculable functioning, the concern to retain this kind of life and the need of a “cover” against an account-demanding authority: all that belongs to the complex of legality from a bureaucratic- functionalist point of view. If a sociologist like Max Weber says: “The bureaucracy is our fate,” we must add: “legality is the working mode of this bureaucracy.”

In those countries in which the State bureaucracy has not, or not yet, the monopoly of the administration of public tasks, one can hardly grasp the transformation of the law into the working mode of an operating public body and perhaps would not understand the change in the meaning of the word “legal” at all. It would be hard to make our reasoning clear to an Englishman or an American without any sociological training. In the Anglo-Saxon usage, the word “legal” has the same sense as “lawful” or “juridical.” Of course, there are antitheses between lawful and moral, lawful and politically possible and habitual, but the sharpest antithesis between lawful and legal, which is the basis of our analysis, cannot be expressed in English. On the contrary, in France, the homeland of State legislation and of the great state-related codifications, the state-related administrative machine has since 1799 survived half-a dozen regime changes. There, the most clear-cut formulations of a purely formalist-functional legality came into being as a consequence, in opposition to substantive law and historical legitimation. As early as 1829, Lamennais had with all precision formulated the antithesis between legality and legitimacy. Even before the 1848 revolution, would the word be preached: legality kills (la legalite tue). In no time, this sentence became a familiar saying in France and in the French language. It can hardly be translated into English, which may be explained only by the fact that the English of the nineteenth century had distanced themselves more than the French from the line of fire of the European civil war. Immediately after 1848, the then President Louis Napoleon issued proclamations in which “He urged, “to get out of legality in order to attain the law” (de sortir de la legalite, pour rentrer dans le droit). From around 1900, the opposition in France began speaking of a “legal country” (pays legal) which it represents, in contradistinction to a “real country” (pays reel).

France is the country of legalists. She has got a strong state-related centralist tradition but also an important independent advocateship and magistracy which do not regard themselves merely as part of the State administration of justice. In this way, it becomes clear why it was in France that the separation of law and legality had been first and most sharply felt and had been formulated most pregnantly. Likewise, the phrases of the Rev. Father Laberthonniere, with which we started, could emerge with such clarity only in France. In Germany, on the other hand, one became critically aware of the antithesis much later, after its most massive effects had been taken into consideration.

For centuries, the German State had been a State of civil servants. Nevertheless, until the collapse of 1918, purely state-related functionalism was hidden despite the prevailing legal positivism, by a thick veil of a dual tradition, namely that of the monarchically dynastic legitimacy and the federalist decentralization. The dynastic legitimacy collapsed in November 1918. Economic-industrial development followed the path of increasing centralization. Finally, only state-related legality remained as the sole lawful foundation of State functioning. Legality would become, as Max Weber said, the only apparent form of legitimacy.

III.

The Germans are said to be a people with a touching need for legality. Also, they have often been reproached for being incapable of offering any right resistance to the powers that be. They have presumably shown a special ability to combine submission to the powers of the time with an inner sense of freedom. Whether Luther or Kant or anybody else should be held responsible for it need not be looked into here. For the rest, there can be no doubt that the Germans are in a particularly high degree a people of civil servants with a cast of mind common to a state-related civil service. To that may be added a stronger sense of a technicized discipline for specialization and the delimitation of responsibilities and for the ideal of functioning without a hitch.

Perhaps. But the transformation of law into legality as a mere functioning mode of the work of the state-related administration and the corresponding relationship with the individual human beings who are dependent on such an administration is no longer a specifically German problem. Juridical positivism rules everywhere, and that means the acceptance of the sentence that the law will be set by whomever simply asserts himself de facto. Juridical positivism is but the transformation of law into a positing of posits. At the same time, it is the acceptance of the “normative force of the factual,” an interesting kind of force which was not discovered only in Germany and only in 1933. Still nowadays, at the beginning of December 1949, the English delegate at the UN explained with reference to the recognition of China’s new communist government that recognition according to international law is to be based only on factual reality. The rightfulness of its genesis is not a characteristic trait of the power of a State. The German Supreme Court said the same after the collapse of November 1918, with regard to the then workers’ and soldiers’ councils. But that is a platitude, a topos of juridical manuals and commentaries. A State machine that functions effectively is in itself the carrier of the State power and the source of all positive law.

This transformation of law into legality is a consequence of positivism. It is unavoidable as soon as a political community distances itself from the Church. Sociologically speaking, it is an aspect of the evolution of the industrial-technical age. In the history of philosophy, it belongs to the transformation of substantive thinking into functional thinking, a transformation which until recently has been extolled to us as a marvelous instance of scientific and cultural progress. The frightful image which results from a complete functionalization of mankind has been the subject of an impressive recent article in the journal Universitas in Tübingen, written by its publisher Serge Maiwald. But already more than thirty years before it, Max Weber, the great German sociologist, had made a diagnosis and a prognosis that proved to be correct. We have already quoted his words about bureaucracy as fate. As another illustration of his marvelous prognosis we quote from his posthumous work Economy and Society (1921, pp. 511–12): “Whatever form law and legal practice might assume under these influences, it is the unavoidable fate in all circumstances and as a consequence of the technical and economic development that each law in force will expand as a rational technical machine, capable of being adjusted any time, and be devoid of any sacred content. Admittedly, this fate may be concealed by the ability to conform to the existing law on general grounds and in many ways, but in reality it cannot be deflected.”[4] True, these sentences of Max Weber may not be easily understood, but even so they are not an oracle but a sociological prognosis.

The transformation of law into legality was directly followed by the transformation of legality into a weapon of civil war. That was not a German invention either. It was Lenin who proclaimed it with full awareness and sharpness. His essay of 1920, entitled “Left-Wing Communism—An Infantile Disorder” is such a confirming document that any discussion of the problem of legality becomes anachronistic unless its words are taken into consideration. Lenin says: “But revolutionaries who are incapable of combining illegal forms of struggle with every [the emphasis is Lenin’s] form of legal struggle are poor revolutionaries indeed.”[5]

That is it. Renowned philosophers and publicists of Leninism and Stalinism have made these theses of Lenin’s the object of their exegeses, with the result that all legality becomes a tactical tool, whereas for them there is only one kind of historical legitimacy, that of the communist revolution. For them, that legitimacy justifies every measure and every legal and illegal terror.

With this observation we have reached our point of departure, the words of Father Laberthonnière that the maxim “law is law” basically means the same thing as “war is war.” That becomes even clearer when we say “civil war is civil war.” With great sadness Father Laberthonnière reminds us of the long lists of revolutionary tribunals, extraordinary, special, people’s courts, which have been busy in the course of history and in the hands of which the law has been a tool of persecution and vengeance. Then, while shuddering intensely, we hear his amazing statement: “I do not compare the victims, I compare only the judges.”

Notes

[1] Oeuvres de Laberthonnière, published under the care of Louie Canet. Sicut ministrator. Critique de la notion de souveranité de la loi. Introduction and notes by Marie-Madeleine d’Hendecourt (Paris: Librarie philosophique J. Vrin, 1947).

[2] Lieutenant Wilhelm Scheringer was one of the three young Reichswehr officers of the garrison at Ulm put on trial at the Federal High Court in Leipzig for making propaganda for the NSDAP inside the Army. Hitler was invited to testify on the third day of the trial, September 25, 1930. Joachim Fest has in part reconstituted Hitler’s oath on the occasion, in which by conjuring up God Almighty, he assured the judge that if he came to power legally, he would set up state tribunals within his legal government, empowered to pass judgment on those responsible for the misfortunes of the nation, with the possibility of a few heads rolling legally as a result.

[3] The law of January 26, 1937, also known as the Civil Service Act, declared the civil servant directly responsible to Hitler as “executor” of the will of the State carried by the Party. It also made the civil servants responsible for reporting activities hostile to the State to his permanent under-secretary or to the head of the Reich Chancellery, Minister Lammers. Swearing an oath to Hitler as the representative of the State carried by the Party was also made compulsory by that law, as well as the exclusion from the Civil Service of all those who at the time of appointment had been excluded from or been rejected by the Party.

[4] The quotation has been translated as it is reproduced by Carl Schmitt in his text. No attempt has been made to harmonize it with the text as it appears in the English translation of Economy and Society, vol. II, p. 895 (New York, 1968).

[5] V. I. Lenin, Collected Works, 14th ed., vol. 31, pp. 96–97 (Moscow, 1966).

Sources: Original: “Das Problem der Legalität” (1950), in Carl Schmitt, Verfassungsrechtliche Aufsätze aus den Jahren 1924-1954 (Duncker & Humblot, 1958). Translation: Carl Schmitt, State, Movement, People: The Triadic Structure of the Political Unity, ed. and trans. Simona Draghici (Corvallis, Or.: Plutarch Press, 2001).