What does Akg-Bewaehrung mean?

State, metropolitan area, nomos. Works from the years 1919–1969 9783428474714, 3428074718

Table of contents:
content
List of abbreviations
Preface
About the present edition
Part One: Constitution and Dictatorship
Dictatorship and state of siege. A constitutional study
Editor's Notes
Editor's Appendix
Reich President and Weimar Constitution
Editor's Notes
Editor's Appendix
dictatorship
I. The dictatorship in Roman law
II. The dictatorship since the Renaissance
III. The dictatorship of the state of emergency
IV. Commissary and sovereign dictatorship
V. The dictatorship of the Reich President
VI. The dictatorship of the proletariat
literature
Editor's Appendix
The implementing law to Article 48 of the Reich constitution (so-called dictatorship law)
I.
II.
Editor's Notes
Editor's Appendix
The civil constitutional state
I.
II.
Editor's Notes
Editor's Appendix
Constructive constitutional problems
Editor's Notes
Editor's Appendix
Strong state and healthy economy
I.
II.
III.
IV.
Editor's Notes
Editor's Appendix
Second part: politics and ideas
absolutism
I. Absolutism in the state
II. The absolutism of the state
III. State Absolutism & Catholic Church
Editor's Notes
Editor's Appendix
Macchiavelli
June 22, 1927
Editor's Notes
Editor's Appendix
The state of justice
introduction
Rule of law as a polemical-political term
The rule of law as a concept of legal philosophy
The rule of law as a legal-technical term of the 19th century
Certain institutions or norms as a mark of the rule of law
Enough
Editor's Notes
Editor's Appendix
What does the dispute about the "rule of law" mean?
I.
II.
III.
Editor's Notes
Editor's Appendix
politics
I.
II.
III.
IV.
V.
Editor's Notes
Editor's Appendix
The state as a mechanism in Hobbes and Descartes
Editor's Notes
Editor's Appendix
Three hundred years of Leviathan
Editor's Notes
Editor's Appendix
The position of Lorenz von Stein in the history of the 19th century
Editor's Notes
Editor's Appendix
The "General German State Law" as an example of legal system formation
Editor's Notes
Editor's Appendix
The shaping of the French spirit by the legislator
I.
II.
III.
IV.
V.
VI.
VII.
Editor's Notes
Editor's Appendix
Amnesty or the power of oblivion
Editor's Notes
Editor's Appendix
Third part: Greater area and international law
Leadership and hegemony
Editor's Notes
Editor's Appendix
Space and Greater Space in International Law
I.
II.
III.
IV.
Editor's Notes
Editor's Appendix
Large-scale international law with a prohibition of intervention for non-spatial powers
A contribution to the concept of the Reich in international law
Preliminary remark
General
I. Examples of spurious or outdated spatial principles
II. The Monroe Doctrine as the precedent of a large-scale principle under international law
III. The principle of the security of the roads of the British Empire
IV. Minority and ethnic group law in the Central and Eastern European metropolitan area
V. The concept of the Reich in international law
VI. Rich and Space
VII. The concept of space in jurisprudence
Editor's Notes
Editor's Appendix
Bibliographical-editorial notes
For immediate discussion and reception of the "large-scale planning"
Political reactions, political context
Further reactions from abroad
The greater debate in Italy during World War II
For the discussion of the "Großraumordnung" in Germany 1939-45
The "large economic area" and the "large-scale economy"
Letters to Schmitt on the "Greater Area Regulations"
Final remarks and notes
The dissolution of the European order in the "International Law" (1890-1939)
Editor's Notes
Editor's Appendix
The space revolution. Through total war to total peace
I. The meaning of war: peace
II. What "total" means
III. Universal or regional?
IV. The modern exodus
Editor's Notes
Editor's Appendix
The sea against the land
Editor's Notes
Editor's Appendix
State sovereignty and a free sea. About the contrast between land and sea in modern international law
Editor's Notes
Editor's Appendix
Accelerator against will or: Problems of the western hemisphere
The bigger island
Large-scale order against universalism
Staggering America
The way out in a double game
Retarders and accelerators
Editor's Notes
Editor's Appendix
The last global line
Editor's Notes
Editor's Appendix
Reply to Kempner
I. My personal relationships with the practice of Hitler's policy of conquest
II. The theoretical underpinning of Hitler's policy of conquest
Editor's Notes
Editor's Appendix
Maritime world politics
Editor's Notes
Editor's Appendix
Fourth part: About the nomos of the earth
Illyria - Notes from a Dalmatian trip
Editor's Notes
Editor's Appendix
Space and Rome - On the phonetics of the word space
Editor's Notes
Editor's Appendix
The unity of the world
I.
II.
III.
IV.
Editor's Notes
Editor's Appendix
World of great suspense
Editor's Notes
Editor's Appendix
The new nomos of the earth
Editor's Appendix
The historical structure of today's world contrast between East and West. Comments on Ernst Jünger's work: "The Gordian Knot"
I.
II.
III.
IV.
V.
VI.
Editor's Notes
Editor's Appendix
Conversation about the new room
I.
II.
III.
IV.
V.
Editor's Notes
Editor's Appendix
Nomos - name - name
I.
II.
III.
IV.
V.
VI.
VII.
Editor's Notes
Editor's Appendix
The order of the world after World War II
I. Anti-colonialism, cosmic space acquisition and industrial development aid
II. The modern cold war is part of the revolutionary war
III. The three stages of the cold war: monistic, dualistic and pluralistic
IV. The present pluralism of areas of industrial development
Enough
Editor's Notes
Editor's Appendix
Conversation about the partisans. Carl Schmitt and Joachim Schickel
First criterion: irregularity
Second criterion: mobility
Third criterion: political commitment
Fourth criterion: the telluric character
Editor's Notes
Editor's Appendix
Directory of names I
Directory of names II
Subject index

Citation preview

CARL SCHMITT

State, Greater Area, Nomos Works from the years 1916-1969

Edited, with a foreword and annotated by Günter Maschke

Duncker & Humblot • Berlin https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

CARL SCHMITT State, Greater Area, Nomos

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

CARL SCHMITT

State, metropolitan area, nomos laboratories from the years 1916 - 1969

Edited, with a foreword and annotated by Günter Maschke

Duncker & Humblot • Berlin https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

Die Deutsche Bibliothek - CIP-Einheitsaufnahme Schmitt, Carl: State, Grossraum, Nomos: Works from the years 1916-1969 / Carl Schmitt. Ed., With a preface and with a note verse, by Günter Maschke. - Berlin: Duncker and Humblot, 1995 ISBN 3-428-07471-8 NE: Maschke, Günter [Ed.]

All rights, including those of partial reprinting, photomechanical reproduction and translation, reserved for all contributions © 1995 Duncker & Humblot GmbH, Berlin Typesetting and printing: Berliner Buchdruckerei Union GmbH, Berlin Printed in Germany ISBN 3-428-07471-8 Printed on non-aging (acid-free) paper according to ISO 9706 ©

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

I n grateful memory of Günther Krauss January 2, 1911-7.

9.1989

Eberhard Freiherr 12/29/1913 -

from Medem

19.1.1993

and Julien Freund 9. 1 . 1 9 2 1 - 10.9. 1 9 9 3

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

content

Preface

XIII

About the present edition

XXVIII

I. Constitution and dictatorship 1. Dictatorship and state of siege. A Constitutional Study (1916)

3

2nd Reich President and Weimar Constitution (1925)

24

3rd dictatorship (1926)

33

4. The implementing law to Article 48 (so-called dictatorship law) (1926)

38

5. The civil constitutional state (1928)

44

6. Constructive Constitutional Problems (1932)

55

7. Strong state and healthy economy (1932)

71

II. Politics and Idea 8. Absolutism (1926) 9. Macchiavelli. As of June 22, 1927 (1927)

95 102

10. The rule of law (1935)

108

11. What does the dispute over the "rule of law" mean? (1935)

121

12. Politics (1936)

133

13. The state as a mechanism in Hobbes and Descartes (1937)

139

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

VIII

content

14. Three Hundred Years of Leviathan (1951)

152

15. The position of Lorenz von Stein in the history of the 19th century (1940)

156

16. The "General German State Law" as an Example of Legal System Formation (1940)

166

17. The Legist's Formation of the French Spirit (1942)

184

18.Amnesty or the power of oblivion (1949)

218

I I I. Greater area and national law 19. Leadership and hegemony (1939)

225

20. Space and Greater Space in International Law (1940)

234

21. International law governing large-scale territories with a prohibition of intervention for non-spatial powers. A contribution to the concept of the Reich in international law (text of the 4th edition, 1941)

269

Preliminary Note 269; General 270; I. Examples of spurious or outdated spatial principles 272; II. The Monroe Doctrine as the precedent of a large area principle under international law 277; III. The Principle of the Security of the Roads of the British Empire 285; IV. Minority and ethnic group law in the Central and Eastern European metropolitan area 291; V. The concept of the Reich in international law 295; VI. Empire and Space 307; VII. The concept of space in jurisprudence 314; Notes and materials 321 22. The dissolution of the European order in the "International Law" (18901939) (1940)

372

23. The space revolution. Through total war to total peace (1940)

388

24. The Sea Against the Land (1941)

395

25. State sovereignty and a free sea. On the Contrast of Land and Sea in Modern International Law (1941) 26. Accelerator against Will or: Problems of the Western Hemisphere

401

(1942)

431

27. The Last Global Line (1943)

441

28. Reply to Kempner (1947)

453

29. World Maritime Policy (1949)

478

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

content

IX

IV. Around the nomos of the earth 30. Illyria - Notes from a Dalmatian journey (1925)

483

31. Space and Rome - on the phonetics of the word space (1951)

491

32. The Unity of the World (1952)

496

33. The new nomos of the earth (1955)

513

34. World's Greatest Tension (1954)

518

35. The historical structure of today's world contrast between East and West. Comments on Ernst Jünger's work: "The Gordian Knot" (1955)

523

36th Conversation about the New Space (1955/58)

552

37. Nomos - name - name (1959)

573

38. The order of the world after the Second World War (1962)

592

39. Conversation about the partisan Carl Schmitt and Joachim Schickel (1969) ..

619

Directory of names I

643

Directory of names I I

653

Subject index

659

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

List of abbreviations ADGB

General German trade union federation

AJIL

American Journal of International Law

AKG

Archive for cultural history

AöR

Public Law Archives

ARSP

Archive for legal and social philosophy

ARWP

Archive for Legal and Economic Philosophy

ASWSP

Archive for Social Sciences and Social Policy

AVR

Archives of international law

BGBl.

Federal Law Gazette

B YIL

British Yearbook of International Law

DJZ

German lawyers newspaper

DÖV

Public administration

DR

German law

EPD

Protestant press service

FAD

Voluntary work service

FBPG

Research on Brandenburg and Prussian history

FN

footnote

FS

Festschrift

FZ

Frankfurter Zeitung

GWU

History in Science and Education

GZ

Geographic journal

HLKO

Hague Land War Order

HPB

The historical-political book

HSTAD-RW

Main State Archives Düsseldorf (the "RW" refers to Schmitt's estate. "RW-265, 33", for example, means: Schmitt estate, box 265, item no. 33).

HZ

Historical magazine

JIR

International Law Yearbook

JöR

Yearbook of Public Law of the Present

JW

Legal weekly

JZ

Jurists Newspaper

KZfSS

Cologne Journal of Sociology and Social Psychology

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

List of Abbreviations MAP

Monthly Bulletin for Foreign Policy

MNN

Munich latest news

Ndr.

Emphasis

NJW

New legal weekly

NPL

New Political Literature

OKH

Army High Command

OKW

High Command of the Wehrmacht

PL

Patrologia Latina (edited by J. P. Migne, Paris 1878 ff.)

PM

Petermann's messages

RAO

Reich Tax Code

RdC

Recueil des Cours de 1 'Academia de Droit Internacional

RDILC

Revue de Droit International et de Legislation compare

REDI

Revista Espanola de Derecho Internacional

REP

Revista de Estudios Politicos

RGBL

Reichsgesetzblatt

RPr

President of the empire

RV

Imperial Constitution

RVBl.

Reichsverwaltungsblatt

Schm.Jb.

Schmoller's yearbook

SD

Security service

VB

League of Nations

VBS

League of Nations statutes

VBuVR

League of Nations and international law

Adm.

Administrative archive

VVDStRL

Publications of the Association of German Constitutional Law Teachers

VZG

Quarterly issues for contemporary history

WRV

Weimar Constitution v. August 11, 1919

ZAkDR

Journal of the Academy for German Law

ZaöRV

Journal of Foreign Public Law and International Law

ZfG

Journal of geopolitics

NDT

Journal of Politics

ZgStW

Journal for all political science

ZöR

Journal of Public Law

ZRG

Journal of the Savingy Foundation for Legal History

ZVR

Journal of International Law

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

XI

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

Foreword "II est surprenant, qu'au fond de notre politique nous trouvions toujours la theologie", Proudhon once remarked.1 Carl Schmitt could have spoken of his political theory in a similar way, the background of which is the kat-echon; the force which the parousia of the Antichrist stops and gives people the time within which politics can pursue its limited game.However, this background does not make it possible to dissolve Schmitt's political and legal theory in theology or to see in it only the mask of the latter. The state which outwardly contains the sea of ​​unbridled and narrow-minded egoism and the crudest instincts and at least forces the influential villain to hypocrisy 2 is therefore not yet a kat-echon; the Leviathan, which holds down the Behemoth, has no theological dignity, and the strong executive that asserts itself against the incapable of government parliament does not need to be boomed up by means of eschatology. Schmitt loved to take his diagnoses to the threshold of eschatology, but then he usually stopped for fear of the syllable jurisconsulti in munere alieno! inside3. Although the emphasis with which he spoke of the state and sovereignty or of the state of emergency and civil war was occasionally due to this background, Schmitt never got beyond a mere metaphorical political theology4, even if this is sometimes an enigmatic one in his reflections on the historically concrete Atmosphere. 1

Proudhon, Les Confessions d'un r ^ volutionnaire, pour servir a l'histoire de la revolution de tevrier, Paris 1849, p. 61. 2 Cf. Schmitt, Der Wert des Staates und die Meaning des Einzelnen, Tübingen 1914, p. 84. 3 This is how Schmitt wrote to his friend Alvaro d'Ors on September 13, 1951, referring to a lecture on the "Unity of the world" in Barcelona, ​​including: "The purpose of my lecture is precisely to develop the picture of the current situation with a cold and objective diagnosis and to take it to the threshold of eschatology, but not one step further. JHasta el umbral, pero ningün paso tras! That is part of my style as a lawyer, and my success as a lawyer is based on my strict adherence to this style, but also on the hatred and enmity of my opponents. " (I thank Prof. d'Ors, Pamplona, ​​for providing a copy of this letter). - Cf. also: Schmitt, Donoso Cortés in pan-European interpretation, Cologne 1950, p. 76. 4 That Schmitt, like his critic Barion, only advocates a "metaphorical political theology", but that what matters is a non-metaphorical one to justify and enforce, as outlined by Pius XI in his encyclical Quas primas (1925), is presented by Alvaro d'Ors in his essay "Teologia politica: una revisiön del problema", Revista de Estudios Poh'ticos, 1976, Pp. 41-79.

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

XIV

Preface

This also applies to the three topics presented here, state, metropolitan area and nomos, which are not discussed in Schmitt's work at the same time, but replace each other, even if the state has been abolished in the greater area and the new nomos of the earth is to be based on greater areas. State, metropolitan area and nomos, however, have a common task: they should - in an analogy to the Kat-echon that cannot be clarified here and probably also as its servant and instruments - stop. The state has to withstand the threatening invasion of human individuality, which finds its politically clearest expression in the civil war; the greater area is supposed to block the way into a universalistic nihilism that destroys the connection between order and localization, whereby the German Reich, "between the universalism ... of the liberal-democratic, people-assimilating West and the universalism of the Bolshevik world-revolutionary East" 5 plays a special role The project of the unity of the world, which, under the philanthropic motto Pax et securitas, can only be an anti-Christian project (Schmitt is convinced that the Christian is not It can be expected to promote the emergence of this anti-Christian unity, because it will be followed by the Parousia of Christ. 6) What is immediately noticeable is the decreasing accuracy, the increasingly less legal comprehensibility of these terms, which already indicate the increasing disorder and confusion of the saeculum , the Schmitt initially wed With no more firm certainty, then with a vague confidence, and finally with nothing but hope. *

*

*

The state of Wilhelm II, in which Schmitt grew up and published his first writings, was constitutionally somewhat strangely constructed, but it seemed to be solid and well-founded and exuded that security that was incomprehensible for us later generations, which is its in the "It is reached!" as casual as plausible formula found. The "It is achieved!" This also applied to the constitutional law of that time, dominated by Paul Laband, which believed that it could dispense with political, sociological, historical or teleological considerations and content itself with the "conscientious and complete determination of the positive legal substance" and its "logical mastery through concepts" allowed to; But this purely legal method was only the reverse side of the limitless trust in the state and a certainty of the state that was undoubtedly afflicted7. 5 Cf. preliminary vol., P. 297. - On this task of Germany cf. also: Paul Schütz, Der Anti-Christus - A study on the anti-divine power and the German mission (first 1933), in: ders., Der Anti-Christ - Collected Essays, Kassel 1949, pp. 47-50. 6 Alvaro d'Ors has a completely different view here; the Christian must long for the end of the world and therefore reject the work of Kat-echon: “. . . aquel Fin, no sölo no debe ser repugnado, sino que debe ser deseado "; in: d'Ors, De la guerra y de la paz, Madrid 1954, p. 194. 7 Cf. on this trust and this certainty: Helmut Quaritsch , State and Sovereignty, I, Frankfurt a. M. 1970, p. 12: “... In the representative works of Paul Laband and

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

Preface

XV

One can assume that Schmitt saw through these common illusions in his field as a young student; The distance of the Catholic outsider, whose parents and relatives had experienced the Kulturkampf, contributed to this, as did Schmitt's affect against the bombastically empty educational establishment in Berlin 8. That Schmitt's first monographs "About Guilt and Guilt Types" (1910) and "Law and Judgment "(1912) can hardly find any evidence for this, is due to their subject matter. But Schmitt's boredom with regard to Wilhelminism and modernity, which he likes to see only as cultural criticism, as it appears in the "Schattenrissen" (1913) and the Däubler book (1916), is to a large extent boredom with a situation facing the state society has fallen on the defensive, while the work "The Value of the State and the Importance of the Individual", which was completed in 1913, hardly conceals Schmitt's doubts about the viability not only of the Wilhelmine but of the modern state in general. It is of course uncertain whether the young habilitand, already equipped with the most impressive eavesdropping tongs, was already familiar with the 1907 death declarations by Edouard Berth and Maxime Leroy, "L'Etat est mort" and "L'Etat cesse d'etre un imperatif categorique" ; Even in 1932 he could not fully accept these statements and only dared to issue a death certificate similar to that of the two French in his Leviathan book in 1938, after the failure of the "total state" To breathe a new, powerful life into states believed moribund. The imposition of the state of siege on July 31st and the resulting emergency rights of the military commanders, on the one hand, and the enactment of the Enabling Act on August 4th, through which the legislative power was delegated to the executive, on the other, led During the war, however, the state did not become a unit, but split it up into two acting dictatorships, a military and a civilian dictatorship, which either had to be laboriously coordinated or came into conflict with each other.10 The "ambivalent overall state structure" of Germany became in d He was obviously the ultimate test of the Great War and the "pathognomic moment" revealed the true state of affairs that had been concealed up to that point 11. Although Schmitt decided on this experience

Georg Jellinek is nothing as secure as the state. "- Schmitt rarely commented on Laband, especially aggressively in: About the new tasks of the constitutional history (1936), Ndr. In: Positions and concepts, 1940, p. 232 f See Schmitt's essay from 1946/47: 1907 Berlin, in: Piet Tommissen, Hrsg., Schmittiana I, 2. A., Brussels 1988, pp. 11-21. 9 See the notes and commentary by Quaritsch, as in FN 7, p. 11 ff. 10 Cf. Ernst Rudolf Huber, Deutsche Verfassungsgeschichte seit 1789, V, Stuttgart 1978, p. 66. - More detailed on this problem, whose roots for Schmitt lie in the Prussian constitutional conflict: State structure and collapse of the second Reich, Hamburg 1934, pp. 36-41.h Schmitt, as FN 10, pp. 9, 10.

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

XVI

Preface

probably only once, in "State Structure and Collapse of the Second Reich" (1934), its importance for his work must be valued very highly. Another experience was that the whole complex "State of emergency" changed more and more in the course of the war. The expansion of the various exceptional measures, be it due to the military power of ordinance, be it due to the civil war emergency legislation, broke the conventional, military-police state of emergency with its rather selective interventions and created through the far-reaching change in currency and financial law, labor and social law, food and war economic planning, etc., the new social and political order of war socialism 12. In a certain way, the change in Article 48 of the Weimar Constitution towards the end of the republic was anticipated, which was initially implemented in a relatively conventional way and resulted in a system of economic and financial emergency ordinances13. From 1931 onwards, with a new terminology, Schmitt could have said, looking back on the war, that a strange interweaving of a total state out of strength and a total state out of weakness would have developed ... But the development of the young Schmitt is allowed not too "theoretically" imagined. The lecturer at the University of Strasbourg, at which Paul Laband had worked uninterruptedly since 1872, lived - and that during the war - in a province in which, since December 30, 1871, the chief president had discussed the "dictatorship paragraph" decreed that the French Loi sur l'etat de siege v. August 9, 1849, and finally inspired Hugo Preuss to write Paragraph 2 of Article 48 of the Weimar Constitution 133; It is astonishing that Schmitt says nothing about this prehistory in his essay "Dictatorship and State of Siege" from 1916, which was written in Strasbourg and with which we are opening our collection. 3. In 1917 in Maxburg in Munich, at the Bavarian War Ministry, responsible for monitoring the peace movement and the USPD.Schmitt had very clear experiences with the state of emergency and was even, in a by no means insignificant position, its practitioner : From experience that his critics did not have, Schmitt knew that the exception was more important than the rule, because only it is capable of either saving the rule or creating a new one 10, pp. 69-115.13 Schmitt, The constitutional meaning of the emergency ordinance (1931), Ndr. In: ders., Constitutional essays, 1958, pp. 235-262 describes the state of emergency: Hans Boldt, Rechtsstaat und Emergency, Berlin 1967, esp.p. 195 ff., 223 ff. 13a Cf.: W. Rosenberg, Der Diktatur-Paragraph in Elsass-Lothringen, AöR, 12, 1897, p 539-89; E. R. Huber, German Constitutional History since 1789, Vol. IV, 2nd A., 1982, pp. 440 f., 450 f.

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

Preface

XVII

ler evidence, but the anti-Schmitt affect feeds primarily on the hatred of the evidence in his key sentences, which is explained by a refusal to apperceive. Nor was Schmitt an exceptional romantic, as people claim, who seek "neither the truth nor the reality, but only the feeling of their security" 14; he was first and foremost a loyal lawyer who could save by exhausting all available means tried what could be saved. If Schmitt were to correspond to the image that is so drawn of him today, he would have had to fight the republic shortly after its birth: the illegality of the creation of its constitution and the signature of the Versailles dictation would have him being able to provide a clear conscience.15 But for Schmitt the revolutionary upheaval from monarchy to republic was little more than a mere - certainly brusque - evolution: "... in the" constitutional "there is an essential continuity between the present-day empire and the old one Reich of 1871 connects ... A constitutional democracy has replaced a constitutional monarchy "16 At the only fixed point in the phenomena of flight, and after the occupation of the Rhine and Ruhr, separatism, the Hitler putsch, the Central German uprising, etc., Weimar's will to assert itself and the defensive strength had to be strengthened: primarily the pouvoir neutrals Reich presidents and thus the possibilities of Article 48. The struggle against Versailles and Geneva (and against one's own illness to death) could only be waged from a strong Weimar. That Schmitt was concerned with strengthening the republic, not with dismantling it, was proven by his lectures on November 4th. and from November 23, 193217 as well as his commitment to Schleicher. If the republic wanted to survive, it had to change, of course, less in its constitution than in its constitutional policy. The fact that in the extreme case of Friedrich Ebert's motto, "If we are faced with the question: Germany or the constitution, then we will not let Germany perish because of the constitution!" Is one of the heavily denied evidence. Schmitt's approval of " Preussenschlag "of July 20, 1932 is finally rooted in its immediate, perhaps even most important, intention: to prevent an emerging coalition government of the NSDAP and the center in Prussia, in which the NSDAP, as the strongest party, falls into the hands of the Ministry of the Interior and thus the police would be 18. 14 Schmitt, Donoso Cort6s in Pan-European Interpretation, Cologne 1950, p. 84. (In italics by me - G. M.). 15 On the illegality of the Weimar Constitution see: Frhr. v. Freytagh-Loringhoven, The Weimar Constitution in Doctrine and Reality, Munich 1924, esp. Pp. 14-21. Although this attitude was often referred to as "legitimism", it was ultimately legalistic-right-positivistic; see ER Huber, Deutsche Verfassungsgeschichte seit 1789, VI, Stuttgart 1981, pp. 14 f. - In general, it was assumed among constitutional lawyers that "Legitimacy ... is not an essential element of state authority" (Heinrich Pohl). 16 Schmitt, der bürgerliche Rechtsstaat (1928), preliminary vol., P. 44. 17 Cf. preliminary vol., Pp. 55-70, 71-91. is So E. R. Huber, German Constitutional History since 1789, VII, Stuttgart 1984, p. 1017.

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

XVIII

Preface

Schmitt's 1933 "transition" to National Socialism, astonishing some observers, cannot be discussed here; this would require a book of its own. Of course, one can argue that an approval of National Socialism given with numerous reservations in 1933 requires less explanation than an immediate, massive rejection Schmitt had emphasized in 1932 that "the death and the end of the state had been proclaimed somewhat prematurely" 19, in 1933, despite great depression over the victory of the "legal revolution" 20, he hoped to give the formulas of National Socialism a meaning - a statist sense. That the strong "total state" that ended the civil war was now possible was a very plausible idea in 1933/34, even if it stood in contradiction to earlier assessments of National Socialism21.Defending and consolidating the state and statehood was Schmitt's clear goal in the years 1933-36 and his program of 1933 was entitled neither "People, Movement, State" nor "Movement, State, People". The campaign of the "Black Corps" of 1936 was directed not only against the Catholics, but also against the statist Schmitt, who had been the "crown lawyer" of the presidential governments, who in 1937 still inspired the National Socialists with more hostile respect than they did the previous democratic regimes22. *

*

*

Schmitt only pronounced "L'Etat est mort" in 1937/38 when he wrote his "Leviathan" during the uncanny calm in Europe; The war that broke out two years later confirmed the thesis of the end of the state as a "concrete term tied to a historical epoch". In 1937, probably in the summer or early autumn, Schmitt's report on international law, "The turn to the discriminatory war term 4, which was published on 29 October 10, 1937, shortly after Roosevelt's "Quarantine" speech on October 5, 1937 in Chicago, was presented to the Academy for German Law in Munich 23. 19 Schmitt, Der Term des Politischen, Munich and Leipzig 1932, p. 27. (Ed. 1933, p. 23; Ed. 1963, p. 40). 20 This is proven by a 10-page diary typoscript by Schmitt v. March 31 - April 13, 1933; cf. the quotations from it in H. Quaritsch, Positions and Concepts Carl Schmitt, Berlin 1995, 3rd A., p. 98. 21 Cf. Ernst Forsthoff, Der totale Staat, Hamburg 1933; there especially p. 31 (significantly missing in the 2nd edition, 1934, albeit with copyright 1933); also G. Maschke, epilogue to Schmitt, the Leviathan in the theory of the state of Thomas Hobbes, 2nd A., Cologne-Lövenich 1982, pp. 227-242. 22 Cf. on this the published by the Rosenberg Office. "Messages on the ideological situation" from 8 January 1937 to Carl Schmitt; now in: Second Stage, Bonn, Oct. 1988, pp. 96-111, with comments and references from G. Maschke. 23 The original text of the "Quarantine "-Rede Roosevelts in: Detlef Junker, Kampf um die Weltmacht - The USA and the Third Reich 1933-1945, Düsseldorf 1988, pp. 79-82: German translation in: Helmut Gordon, ed., Kriegsreden 1936-1941 - Das big boilers against Germany, Leoni am Starnberger See 1992, pp. 39-48 (with commentary).

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

Preface

XIX

That there had been a turn to the discriminatory concept of war on the side of the enemy powers was recognized by numerous German international law experts and political scientists, some of them long before Schmitt. The implications of universalism under international law were also seen through and Schmitt's wakeful awareness of the protrusion of the enemy side in intellectual and scientific preparation for total war was by no means singular; Schmitt was only the most famous here in a long line of viewers. The really new thing about Schmitt's little pamphlet was that the "L'Etat est mort" in international law was being taken seriously. Until then, even authors like Norbert Gürke, who wanted to declare the people to be the main addressee of international law instead of the state, To admit with resignation that international law stands and falls with the concept of the state.24 Even Gustav Adolf Walz, speaking of a "thorough national cleansing of political reality" and wishing for an "international law that does not just think in terms of states", could in the end only demand that to tie in with "the modest but clear forms of international law of 1914", which "despite its shortcomings is better suited to a sensible regulation of international relations than the rigid universalistic system of the post-war period" 25 always modified, the non-discriminatory war between states and duels resurrected. 26. Schmitt was sympathetic to such Hische reverien not included. Although he emphasized that against a League of Nations law that amounted to a kind of legal encirclement of Germany, "that ... a real community of European peoples is the prerequisite for a real and effective international law", 27 he was referring only vaguely to his in 1936, no less vague demand that the League of Nations as "a combination of the most heterogeneous structures ... another political structure" 28 must be opposed. When asked, however, "what new things should actually be put in place of the old state order, since (he) neither simply stays with the old nor (himself) the terms. 24 Norbert Gürke, Volk und Volkerrecht, Tübingen 1935, p. 100. - Far more radical in his efforts to replace international international law with a "law of the peoples" was Hans KEL Keller, cf. especially: Das Recht der Völker, I, Farewell to "Völkerrecht" Berlin 1938; Vol. II, Das Reich der Volker, Berlin-Schöneberg 1940. Keller accused practically the entire guild of international law of the Third Reich for sticking to statism. - For a general overview until shortly before the Second World War, see also: F. Giese / E. Menzel, Vom Deutschen Völkerrechtshaben der Gegenwart, Frankfurt a. M. 1938. - An investigation of the debate between the "völkisch" and the "statist" international law in the Third Reich is missing as well as a factual overall presentation of the situation of the international law between 1933 and 1945, which also the partly great achievements of this science during this Period knows how to appreciate. 25 G. A. Walz, Inflation in Völkerrecht der Nachkriegszeit, Berlin 1939, pp. 76 f.26 This is by no means only true for many of Walz's writings, v. Freytagh-Loringhovens or Heinrich Rogges. 27

Schmitt, The turn to the discriminating concept of war, Munich 1938, p. 52. 28 Lt. Minutes of the meeting d. International Law Committee of the Academy for German Law v. June 19, 1936; Central State Archives Potsdam, Academy for German Law, 28, 192.

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

XX

Preface

Schmitt was unable to answer in October 1937. It was not until April 1939, at the conference of the Kiel Institute for Politics and International Law (cf. preliminary vol., p. 343) that he believed the answer to know: "The new concept of order of a new international law is our concept of the empire, which is based on a people-borne, people-like greater area order. In it we have the core of a new way of thinking under international law, which is based on the concept of people and the elements of order contained in the concept of the state can exist, but at the same time is able to do justice to today's spatial conceptions and the real political vital forces; H. can be terrestrial without destroying the peoples and states and without, like the imperialist international law of western democracy, steering from the inevitable overcoming of the old concept of the state into a universalist-imperialist world law "30.

The passage is quoted so extensively here because on the one hand it happily meets the quintessence of Schmitt's large-scale thinking, on the other hand it suggests the undeniable weaknesses of the concept. Empire, greater area, people and state, these are four terms that are able to arouse historically very different associations and feelings and whose political and legal implications tend to diverge rather than lead to a closed, harmonious unit. Even if we leave Schmitt's game with the ambiguous term "Reich" aside, 31 his uncertainty becomes just as clear as his ambition to occupy the "entire field" and to please everyone by means of an intellectual balancing act. One is tempted to think of two statements by Schmitt about Friedrich Schlegel and Francisco de Vitoria: “So what does he (Schlegel G. M.) actually want? He wants to "follow the development with participatory thinking" or: "... what does he (de Vitoria - GM) actually want? He obviously doesn't want to change anything in the political and economic result of the Conquista. So what does he want? He wants them Getting the argumentation in hand in order to keep the spiritual guidance. "32 Although Schmitt retained the spiritual guidance in the large-scale debate, the argumentation was not in his hands. At the center of his theses was the "prohibition of intervention for powers outside of the area" and if this principle prevailed, 29 Vorl. Vol., P. 306. 30 Ibid. 31 Andreas Koenen, Der Fall Carl Schmitt - His assignment to the "Kronjuristen des Third Reiches", Darmstadt 1995 , believes that Schmitt was primarily a "Reich theologian" and that the "Großraumordnung" was only his last attempt to enforce his "Reich Theology." I hold this thesis, which is based on an alleged non-statism of Schmitt and which I will soon deal with in detail would be wrong; but would like to draw attention to the wealth of references and suggestions in this book.32 The first quote from: Schmitt, Politische Romantik, Munich and Leipzig 1919, p. 94 (in the 2. A., 1925 , P. 165); the second from: Schmitt, Glossarium - records of the years 1947-1951, Berlin 1991, entry of February 26, 1948, p. 106. - I owe this information to Mr. Andreas Raithel, Hürth near Cologne .

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

Preface

XXI

Should be set, then not only had the powers in question to forego interventions against the German Reich and its greater area, but also the Reich had to refuse all interventions. In the end it was said that it had to declare itself saturated. After the Protectorate of Bohemia and Moravia was founded in March 1939, just two weeks before the Kiel conference33, Schmitt considered this situation to be a given; the greater area of ​​the empire seemed complete. But precisely the invasion of Bohemia and Moravia was understood on the enemy side, even if it did not make use of a large-scale theory, as an analogue to an intervention that was alien to space. International politics could not agree on the boundaries of the metropolitan area, so the "struggle for metropolitan areas" had to begin, 34 what with the promise that "the metropolitan area ... must be an area of ​​national freedom and extensive independence and decentralization" 35 Even then there was a glaring contrast if the fulfillment of this promise had not only been the wish of the impotent intellectual Schmitt, but also the goal of the powerful perpetrators - which, as is well known, was not the case. The power demanding its greater area believed that it could only achieve its "appropriate" living space 36 by means of expansion and since, given modern industrial conditions, its concept of self-sufficiency was neither "self-sufficient", it quickly became subject to a more stringent law of growing spaces37. The situation with the open space was hardly any different than it used to be with the natural borders; the self-restraint and self-limitation that was so often proclaimed in both cases turned into an expansion that knew no boundaries, the glacis, which was moving ever further forward, had to be controlled, the terrain of "self-defense" had to be shifted further and further to the outside; Finally, the metropolitan area had been established if a continental block would have been desired or a supplementary room would have been needed ...

Interestingly enough, even the establishment of the Protectorate of Bohemia and Moravia in 1939 was "too much" in expansion for Werner Best, who was sharply critical of his reluctance to expand; he explained to his friend Höhn in March 1939: "Comrade Höhn, this is the end. So far, have We people believed that National Socialism embodied the Volkish idea and that this Volkish idea knew limits. With the invasion of Prague, however, National Socialism became imperialism. " (Based on: Heinz Höhne, Der Orden unter dem Totenkopf - Die Geschichte der SS, Essen undated (licensed edition by Magnum Verlag), p. 454. 34

Cf. the book with this title by Rolf Kapp, Munich 1942. 5 Vorl. Vol., P. 390.

3

36 It is noticeable that Schmitt mostly avoids the word "living space", probably because it could be interpreted expansionistically and biologically, and was also interpreted in this way by Hitler. Cf. previous vol., Pp. 465-468; also: Adolf Hitler, Mein Kampf, 464th - 468th ed., Munich 1939, especially pp. 739-742, as well as Hitler's Second Book, a document from 1928, Stuttgart 1961, passim. 37 On the "expansionist" interpretation of autarky cf. : Francois Perroux, Autarcie et expansion - Empire ou Empires ?, Paris 1940, who differentiates the "autarcie d'expansion" from the "autarcie de repliement". The criticism of the German striving for autarky (the high point of the discussion around 1932, cf. . Also in the year the book "Autarkie" by F. Fried) is a bit too cheap, since partly since 1900, but at the latest with the world economic crisis

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

XXII

Preface

The greater area did not become the antagonist of universalism, but resembled it, if only for that reason that it had to adopt its forms of war; He, too, could not avoid organizing his "self-defense" in the Atlantic and Pacific. Here there were often overlooked, inherent inevitabilities. But it was also obvious that Schmitt's opponents in the large-scale debate, like Reinhard Höhn and Werner Best, were just as unsatisfied as the political leadership in Germany or self-restraint, as Schmitt, who tried to exploit the propaganda of National Socialism as a non-export article and as a respect for any nationality, very clearly recommended The necessities of existence of the European peoples should take into account "38, objected Höhn against Schmitt and demanded," the essence of the large areas should not be grasped from the bottom of the demarcation, but from the bottom of the substance ... The principle of non-intervention cannot simply be put aside . It is . . . especially important at the moment when large areas are emerging and in the event of a conflict. However, it does not embody the legal principle for a public law based on large areas "39. Because Schmitt's Großraumordnung opposed expansion outside the area, because its criticism of the usual Anglo-Saxon procedure had to be read and was read as a criticism of National Socialism - it became clear that the perversion of the Monroe Doctrine described by Schmitt would "repeat" itself in a different way in the case of a greater area ruled by Germany - Schmitt had to get into the crosshairs of the SS ideologist Höhn, who moreover could justifiably ask what was happening because the principle of non-intervention regarding the metropolitan area would be different from the state prohibition of intervention 40. The state and with it the relation between protection and obedience had found its camouflaged bunker position for the anti-statist Höhn in the Schmitt area and Höhn, whose theses, in contrast to those of Schmitts, were clearly aggressive and offensive, did not hesitate, the usual porridge with this aggressiveness of the heart flow together and complained that Schmitt's principle of non-intervention “. . . always what separates (underlines). It sees the partner predominantly from the point of view of the possible adversary and always demands the possibility of a threat. "41 Werner Best also sensed the state, that is, not least law and legal security, in Schmitt's paper and he criticized the fact that the world foreign trade volume to be surmounted sank. Interestingly, Schmitt does not comment on autarky at all in connection with the large area issue; cf. only later, in a rather indirect way, in: Der Nomos der Erde, Cologne 1950, p. 207, fn. 38 R. Höhn, Großraumordnung und völkisches Rechtsought, in: Reich, Volksordnung, Lebensraum, 1941, pp. 256-288, here p. 260. The second italics from me - GM 3 9 Ibid., pp. 283 f. 40 Ibid., especially p. 278. Ibid. , P. 274 f.

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

Preface

XXIII

According to the international law character of Schmitt's theory, the smaller states incorporated into the greater German area could come up with the idea "that they would have to conclude" international law "treaties with the ruling people of the Greater Region as equal," sovereign "partners, and that they might be bound by" international law " 4 2 But despite such criticism, Schmitt did not get into trouble with his formula "Großraum" as he did a few years earlier with his formula "total state." There was a lack of clarity and arbitrariness of the interpretation here as there, but in the case of the "total state" they were lower and the internal political neutrality of the total state was too clearly included; even if this state should neutralize and depoliticize out of its political strength. This neutrality and depoliticization should not take place because it would have hindered or prevented the totalitarian coverage of the national community. In the open space, however, it was a question of reality en marche; "Everyone" wanted him, "everyone" could model him according to his taste, but even Schmitt's sharpest opponents had to grant him the palm of the intellectual pioneer. In view of this indisputable reality en marche and not least because of the polemical discussion, some weaknesses of Schmitt's sketch43 fell out of sight. Schmitt's metropolitan area was purely continental and ultimately contained nothing less than that the sea powers, because they did not have a closed metropolitan area and only controlled a network of traffic and communication lines, had to abdicate. out of a geographical guilt. The problem of the equilibrium between land and sea and that of the equilibrium at sea, which Napoleon and the French lawyers of his time had been concerned with, was simply disregarded in Schmitt's "Greater Area Regulations", but only touched upon in "Nomos der Erde". The sea power England (and not the downright "displaced" United States) was the enemy here, and that in a situation in which Hitler believed or at least hoped he could somehow come to terms with the Empire he admired, yes, in one Not too distant days to come to an alliance. The contrast between the 42 Werner Best, Again: Völkische Großraumordnung instead: 'Völkerrechtliche Großraumordnung!', Deutsches Recht, 1941, p. 1533 f., here p. 1534. 43 Cf. The beautiful, enlightening remark by Peter Schneider, exceptional state and norm, Stuttgart 1957, p. 21: "... It is known that suggestive sketches often have a stronger effect than completed paintings. One cannot blame them for lack of completion, because they do not want to be more than they are: perfection in the medium of the unfinished.While the painting can trigger in the viewer the feeling for the limitation of the completed realization, ... the hint of the freshness of the M opportunities ". 44

See, for example, the many references in Roman Schnur, Land und Meer - Napoleon against England. A chapter in the history of international politics (first 1963), in: ders., Revolution und Weltbürgerkrieg, Berlin 1983, pp. 33-58. An important keyword here was probably Gabriel de Mably, Le droit public de 1'Europe fondä sur les traitös, 1748; also the other, Diplomatic Negotiations, from the French, Berlin undated (Borngräber), esp. p. 90 f.

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

XXIV

Preface

Completely anti-English international law, geopolitical and foreign scholarly literature in Germany in the years 1936-1940 and Hitler's stubborn Anglophilia would be worth some attention ... This literature basically repeated - which can only be said here with the whole aplomb of simplification - that the anti- English polemics of the Wilhelmine era before the First World War, be it in the more nuanced way of Otto Hintze 45, be it in the coarser one of Count Ernst zu Reventlow, whose book "The Vampire of the Mainland" appeared for the first time in 1915 and in 1939, only slightly expanded and updated, came out in the 12th edition. Carl Schmitt has built on this tradition of Wilhelminism, which is otherwise so vilified by him, and one may wonder whether his spatial structure was really so different from the concepts of the Wilhelmine and Weimar times, i.e. the Central European The idea of ​​"world politics and no war", the south-east European politics. It is true that Schmitt's "hegemonic federalism" 46 tried to find a legal foundation for these concepts, but how should this take place? And in 1939 Schmitt did not suggest the idea that many observers had already before 1914, namely that Germany would rise to world power ultimately only a kind of transfer (quasi by cranesbill) of the outdated European equilibrium to the entire earth and therefore from the three real world powers (which in 1939, despite changed power potentials and ideologies, were still the same as in 1900: USA, England and Russia!) must be accepted? 47 What was the really decisive difference between the greater area and the ideas of order before 1914? This question arises precisely because Schmitt like few, and certainly even before the writing of the "Nomos der Erde" before 1945, knew that the European equilibrium rests on the unoccupied, still free spaces outside Europe uhte, but these rooms were closed by 1890 at the latest. The greater area, however, implied a world equilibrium. 4 8 45 Cf. Hintze: The rule of the sea in England, its foundation and significance, Dresden 1907 (Gehe Foundation); The English plans for world domination and the present war, Berlin 1914; Imperialism and world politics, in: Die deutsche Freiheit (lectures by Harnack and others), Gotha 1917, pp. 114-169. 46 Such an expression by Ernst Rudolf Huber. On his criticism of Schmitt's Greater Space Order, see our notes, preliminary vol., P. 360 f. 47 Gustav Schmoller launched the theory of the three world empires England, USA and England, which were expanding, reducing trade with other countries and striving for self-sufficiency from 1900 onwards Russia; see: Schmoller, The Changes in European Trade Policy of the 19th Century, Schmoller's Yearbook, 1/1900, pp. 373-382. Because of these exclusionary and exclusionary tendencies, Central Europe must come to a "trade-political unification". Schmoller's essay is related to the so-called industrial state debate in Germany; it is almost always given the wrong title in the literature, "The theory of the three world empires"; so also in Schmitt, Der Nomos der Erde, 1950, p. 207. On the context and criticism, see Heinrich Dietzel, Weltwirtschaft und Volkswirtschaft, Dresden 1900.

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

XXV

Preface

We break off these tentative movements here and still consider it unnecessary to emphasize the extraordinary importance of Schmitt's theory of large spaces. Apart from the fact that here, as is so often the case, Schmitt's talent for shaping and his sketching approach lead to a very exciting and stimulating eternal conversation, the seed-capsule-like fruitfulness of the small font from 1939 can only be admired. The results of the universalism triumphant in 1945 are terrifying and in the struggle against this universalism, which is accomplished in the catastrophic collapse of world unity, in its endless fragmentation, in the "failure of reason on the formulas of globalization" 49, one will have to rediscover Schmitt's lecture of 1939: as a "cast off!" to the long, uninterrupted journey we are still on ... *

*

*

It is noticeable that Schmitt, who quite eagerly propagated his "Großraumordnung" in public (cf. preliminary vol., P. 358), gave the last lecture on the subject on January 25, 1941 and that in August the fourth and the last edition of his work appeared, although the large-scale debate had by no means reached its zenith. We can only assume that Schmitt did not take part in this debate because the talk of a German metropolitan area had long since taken on not only imperialist, but also "placeless" traits , yes, "Hitler's combination of racial biological viewpoints and ideas about greater space ... (meant) more than just an intensification of what classical imperialism had already produced in this regard ..." 50. In addition, it was with the attack on the Soviet Union at the latest On June 22nd, 1941 the most important business basis of a greater area order in the sense of Schmitt ceased to exist: the delimitation of the "mutual interests of the Reich" (cf. preliminary vol., p. 295). With Operation Barbarossa, the metropolitan area was "refuted" for the time being, even if it was a question of a preventive war.

48 Ludwig Dehio, Balance or Hegemony, Krefeld 1948, sees the main flaw in German politics in both 1914 and 1939 in the belief that Germany can "grow out of the European system into a new world system", p. 202. He sees the Both world wars a determination for the unity of the world, ibid., p. 204. - Cf. Rudolf Kj61len, Die Großmächte der Gegenwart, 1914, 6th edition, Leipzig and Berlin 1915, p. 124: “But in the same measure as If world history has expanded from a European to a planetary (stage), the idea of ​​equilibrium must seek out the larger stage; the balance in Europe must be supplemented or replaced by the balance on the seas and in the entire political world, but in such a planetary one Equilibrium system there is no place for an English world empire of the type that dominates the seas today ”. 49

Emanuel Richter, The Disintegration of World Unity - Reason and Globalization in Modernity, Frankfurt a. M. 1992, pp. 242-252; Against this tendency, the author invokes a (“reasonable”) “universal community”, ibid., p. 252 ff., which, after all the crises he has uncovered, has a rather touching effect. so Heinz Gollwitzer, History of World Political Thinking, Vol. II, Göttingen 1982, p. 543.

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

XXVI

Preface

Schmitt probably also recognized the shortcomings of his concept and his texts on the relationship between land and sea, which he wrote from 1941 on, are attempts to remedy these shortcomings as far as Corollaries and Addenda are able to do so. At the same time, these addenda and corollaries express the awareness that the "last European war" (John Lukacs) would very quickly turn into a world war and thus complete the discriminatory concept of war. When, at the beginning of December 1941, the German advance before Moscow came to a standstill That the culminating point of the attack did not coincide with the culminating point of the war was the German defeat, even if one looked even superficially at the catastrophic underarmament of the Wehrmacht 51. Everywhere one looked: universalism had, first of all, triumphed over the greater area. Fought In the legal and domestic political discussion, Schmitt initially took an offensive for the state, but then fought defensively on the international law and foreign policy level - under new, supra-state conditions - for the elements of statehood that had yet to be rescued To conjure up nomos of the earth as well as to seek to the e final triumph of nihilistic universalism, a resistance that may still be possible. These attempts ranged from evoking, even sacralizing, places that were important to him, to historical-philosophical considerations and concrete analyzes of world politics, such as the international situation after the Bandung Conference, since the rise of China, or during de Gaulie's efforts. Many such hopes can hardly be dismissed today, in view of the decline of American hegemony5la or in view of the obvious disintegration of the world unity that is just beginning to emerge, even if all signs suggest that man is “taming the unleashed technology "(cf. preliminary vol., p. 568) will not succeed, that new fights of the war are not conceivable, let alone that the wish that it may be" the peacemakers ... who possess the earth52 seems to be achievable The attentive reader of Schmitt should not miss the non-activist, resigned tone that already registered in his early work; the trumpet, which gives a clear tone, sounds rather seldom, if one thinks of the complete work beginning in 1910 and completed in 1981. Everyone who knew Carl Schmitt better will agree with his self-characterization: "My nature may be opaque, at least it is defensive. I am a contrarian plativer and inclined towards sharp formulations, but not to the offensive, not even to the counter-offensive. 51 Cf.: Hartmut Schustereit, Vabanque - Hitler's attack on the Soviet Union in 1941 as an attempt to defeat the West by victory in the East, Herford and Bonn 1988, especially pp. 30-68. 51a Cf. especially: David Calleo, Beyond American Hegemony, German and English T. The future of the western alliance, Bonn 1989. 52 Schmitt, Der Nomos der Erde, Cologne 1950, p. 20.

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

XXVII

Preface

My being is slow, noiseless and yielding like a quiet river, like the Moselle, tacito rumore Mosella. "53 Schmitt's greatness does not lie in his answers, which often lack the power of persuasion - it lies in his questions and questions, behind them too Then we cannot go back if we do not find the answer. The greatness of this much maligned man also lies in the fact that he, the quiet and contemplative, did not follow the (escape) routes laid out for him, such as Jacob Burckhardt's way into culture or Franz Blei's path to aestheticism. Instead, Schmitt faced the res dura of the political: "Son of this consecration, you shouldn't tremble - listen and suffer!" Frankfurt am Main July 1995

Günter Maschke

53 Ex captivitate salus - Experiences of the time 1945/47, Cologne 1950, p. 10. - The quote from Ausonius, Moseila: "Et virides Baccho colles, et amonea fluenta / Supterlabentis tacito rumore Mosellae" ("... the greenish hills , consecrated to Bacchus, and the Moselle / lovely trickling flood, which flows with a quiet murmur "), according to the Ndr. the bookstore Behrens, Trier 1979, following the Koblenz edition of 1802.

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

About this edition The texts in this edition are based on the respective first prints mentioned in the appendix. Typographical errors were tacitly corrected, ancient spellings (for example "over" instead of "over") were usually adapted to current practice. The footnotes prepared by Carl Schmitt were largely checked; the errors, incorrect dating, incorrect quotations, etc., which are not uncommon, have been improved - mostly tacitly. Unless expressly stated, my own comments and suggestions are based on an autopsy. I have given priority to writings that Schmitt probably or with certainty knew, then the literature during his lifetime and finally the later literature. Of course, the respective standard works were also taken into account. It goes without saying that despite all efforts the section of the notes, which has been deliberately kept very detailed, still has "gaps". Just two particularly concise examples. On p. 425 f. I refer to the famous "Book Battle", the dispute over the freedom of the seas , back and learn about the polemics between Grotius, Seiden and Freitas. Even before this polemic, however, the French strongly demanded "freedom of the sea" from the Spaniards, as, for example, Adolf Rein in his important work "The Struggle of Western Europe and North America in the 15th and 16th Centuries", Stuttgart-Gotha 1925, p. 99 ff. proves in detail. Or: On p. 454 Schmitt mentions a "conference" by Ribbentrops with intellectuals shortly before the outbreak of World War II, of which I declare on p. 464, FN 4, that I have not found anything about it During the upheaval, I was made aware of an article by Armin Möhler, known to me, but omitted, "The Giselher Wirsing Case", in: Möhler, Tendenzwende für advancede, Munich 1978, p. 146155, which was based on a "kind of situation discussion (v. Ribbentrops - GM ) for writers at Schloss Leopoldskron near Salzburg "reported (p. 149), at which Wirsing and Ernst Jünger, among others, were present.To fill in all the gaps that I was still aware of, let alone the gaps that were not yet conscious due to a lack of knowledge, would have meant a further, no longer responsible, delay in the tape, which has been expected since at least 1993. The information and citation technique has unfortunately not been kept completely uniform due to the many years of interrupted work. Some remarks and comments are repeated, even if only on the matter and not in the text. To clean up and standardize everything here would not always have been useful, but would have turned the volume into a single cross-reference work, in which the reader would turn more back and forth than read at the end.

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

About the present edition

XXIX

de. The original plan to write a very extensive, "systematic" introduction was abandoned. If the approach had been only halfway serious, it would have turned into a book of its own. While working on this edition, which was often interrupted, mainly due to two longer stays in Peru in 1990 and 1992, I received help from many sides.First, I may mention my dear wife Sigrid, who shielded me and encouraged me: Prof. Dr. Joseph H. Kaiser, Staufen i. Br., the executor Carl Schmitts, kindly gave me the necessary permission to print and helped with numerous tips. Prof. Dr. Helmut Quaritsch (Speyer), Mr. Andreas Raithel (Hürth near Cologne) and Prof. Dr. Piet Tommissen (Grimbergen / Belgium); Mr. Raithel also kindly compiled the two directories of names. Finally, I would like to thank a few friends and acquaintances who brought me to Advised on individual cases, sent material, etc. I would like to mention here: Alain de Benoist (Paris), Alessandro Campi (Perugia), Prof. Dr. Antonio Caracciolo (Rome), Vice Admiral Luis Giampietri Rojas (La Punta / Peru), Dr. Manfred Lauermann (Gütersloh), Prof. Dr. Manuel Migone Pena (Chaclacayo / Peru), Dr. Armin Möhler (Munich), Martin Mosebach (Frankfurt a. M.), Prof. Dr. Alvaro d'Ors (Pamplona), Henning Ritter (Frankfurt a. M.), Dr. Guillermo Gueydan de Roussel (Lago Puelo / Argent.), Prof. Dr. Roman Schnur (Rottenburg), Robert Steuckers (Brussels), Christian Tilitzki (Berlin) and Dr. Peter Weiß (Vienna). Dr. Ingeborg Villinger and Dr. Dirk van Laak support my research in the Düsseldorf main state archive, which houses the estate of Carl Schmitt. Thanks also go to the publishing house Duncker & Humblot and its director, Prof. Dr. Norbert Simon, for the considerable patience. The issue is dedicated to three paternal friends whom I met through Carl Schmitt. Amicus certus in re incerta cernitur - Günther Krauss, Eberhard Freiherr von Medem and Julien Freund would certainly have gladly agreed on this motto. G. M.

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

First part

Constitution and dictatorship

1 State, Greater Area, Nomos https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

Dictatorship and the state of siege A study on constitutional law1 The states of emergency called state of siege, state of war or dictatorship contain various points of view mixed up in the legal regulation that they have found today in the various European countries. A knowledge of the legal and political nature of those exceptional states is only possible by dissolving the heterogeneous elements. Since the laws governing matter in force in the German Empire today arose essentially under the influence of French legislation, the historical material for the investigation will have to be taken mainly from French history. It is true that the influence of French ideas on the reform of the internal administration and on the armed forces of Prussia is not as great as is often assumed. 2 But the constitutions of the German states have adopted their terminology, which cannot be permanently detached from the terms, and the history of the Prussian state of siege is inseparable from the history of the Prussian constitution. The materials of all laws pertaining to the state of siege and the constitution refer to Belgian and French models. 3 Since the revolution of 1848 it became customary to use the so-called political, i. H. to give the state of siege imposed the name military dictatorship to combat internal unrest and to identify the state of siege as a legal institution with the dictatorship. Such an equalization of the two terms is historically quite unjustified.4 It would not have been possible in 1793. At that time, 1

This work is prompted by the remarks of Reichsgerichtsrat W. Rosenberg, "The legal barriers of the military dictatorship", vol. 37, pp. 808 - 825 of this journal. It seemed to me necessary to treat the question more fundamentally and under further historical aspects and thereby to determine the conceptual contrast between the state of siege and dictatorship.2 In particular, the Steinschen and Hardenberg organizations are not imitations of French models. — Godefroy Cavaignac, La formation de la Prusse contemporaine, 1.1, Paris 1891, p que la Prusse ne se distinguait de la France et Stein de la Revolution fran9aise qu'en reculant devant la tache, que l'une et l'autre avaient accomplie. " Ernst von Meier, French Influences on the State and Legal Development of Prussia in the 19th Century, Volume II, Leipzig 1908, p. 395 (about Stein) and p. 402 (about Hardenberg). 3 R. Smend, The Prussian constitutional document in comparison with the Belgian one, Göttingen 1904, p. 24 ff. Haldy, The state of siege in Prussia, Tübingen 1906, p. 5.

https://doi.org/10.3790/978-3-428-47471-4 Generated for Universitaet Leipzig, Universitaetsbibliothek at 139.18.244.59 on 2021-03-23, 10:35:05 UTC FOR PRIVATE USE ONLY | FOR PRIVATE USE ONLY

4

Part One: Constitution and Dictatorship