The Führer as source of “supreme justice” in the German Reich: Carl Schmitt’s essay of 1st August, 1934
Legal-political philosopher Carl Schmitt is often described as the “crown jurist of the Third Reich” by modern commentators, an appellation supposedly first coined by the German-American scholar of totalitarianism, Waldemar Gurian. Schmitt’s actual relationship with the Reich is contentious – there are plenty today who claim that his support for the National Socialist regime was opportunistic, that there is evidence he attempted to defend and support the Weimar constitution during its long period of gradual breakdown. Others counter these claims by pointing directly to works such as Schmitt’s Dictatorship, or to his Crisis of Parliamentary Democracy, arguing that they demonstrate an implicit fascist sympathy through their critique of the fundamentals of liberal parliamentarism and their advocacy for authoritarian forms of governance as an essential tool in statecraft. Whatever the reality behind Schmitt’s complex philosophical ideas, it is indisputable that he was part of the Conservative-Revolutionary intellectual milieu and that he fell behind the National Socialist regime after Hitler’s accession to the Chancellorship in 1933. Schmitt spent the early years of the new Reich attempting to provide its governance with a solid juridical-philosophical foundation, something he was assisted in by the prominent appointments he attained within the new regime – including leading positions within the Prussian State Council, the Academy of German Law, and the National Socialist Lawyers’ League. The article below is a prime example of Schmitt’s writings from this period. Published in the prestigious legal journal Deutsche Juristen-Zeitung less than a month after the final death-spasms of the Night of the Long Knives and Hitler’s speech justifying the purge, “The Führer Protects the Law” sees Schmitt putting forth a legal justification for the extra-judicial killings of Röhm, Schleicher, Gregor Strasser, and numerous other real, potential, or imagined opponents of the regime. It is a juridical argument for Führerprinzip, positing the Führer’s legal role as that of both supreme judge and the supreme source of the Volk’s collective sense of justice; as such it makes for an inestimable contribution to fascist theory.
The Führer Protects the Law
On Adolf Hitler’s Reichstag Address of 13th July, 1934
State Attorney, Prof. Dr. Carl Schmitt, Berlin
At the German Jurists’ Annual Convention, held in Leipzig on October 3rd 1933, the Führer spoke about state and law. He elaborated the distinction between substantial law, which is not divorced from morality and justice, and the empty legality of false neutrality. He also delineated the inner contradictions of the Weimar system, which destroyed itself through this neutral legality and thereby handed itself over to its enemies. To this he added the sentence: “This must be a warning for us.”
In his speech to the Reichstag, delivered on July 13th 1934, which was addressed to the entire German Volk, the Führer invoked yet another historical lesson. The powerful German Reich founded by Bismarck collapsed during the world war because it lacked the strength “to activate statutes pertaining to war” in the decisive moment. The civil bureaucracy, devoid of all political instincts and paralyzed by the logic of the liberal constitutional state, could not muster the courage to treat mutineers and enemies of the state properly under the law. Anyone today who were to read the report on the public plenary session held October 9th 1917, in volume 310 of the Reichstag-Drucksachen [official record], will be appalled, and will understand the Führer’s warning. The Reichs-government reported that the ringleaders of the mutinying sailors were negotiating with members of the Reichstag affiliated with the Independent Socialist Party.
The German Reichstag answered with loud indignation that one cannot curtail a party’s constitutional right to campaign in the army, and that there was no conclusive evidence for high treason in this case. Well, only one year later the Independent Socialists threw this conclusive evidence in our face. The German Volk withstood an onslaught by the entire world with unprecedented bravery and with tremendous sacrifice for four years. But its political leadership woefully failed in the fight against the poisoning of the German Volk and the undermining of German law and its sense of honor. Still to this day we are atoning for the paralyses and hesitations of the German government during the world war.
All moral outrage over the disgrace of such a collapse accumulated in Adolf Hitler and became in him the thriving force of a political act [Tat]. The experiences and warnings of the history of this German calamity live on in him. Most people fear the severity of such warnings and prefer to escape into an evasive and compensatory superficiality. But the Führer takes seriously [macht Ernst] the teachings of German history. This endows him with the right and power to found a new state and order.
The Führer protects the law from the worst kind of abuse when, in the moment of danger, he immediately creates law by virtue of his leadership [Führertum] as the supreme judge: “In this hour, I was responsible for the fate of the German nation and thereby became the supreme judge of the German Volk.” The true Führer is always a judge as well. From his domain as Führer flows his domain as judge. Whoever wants to separate or even oppose justice and leadership either makes the judge into an anti-Führer [Gegenführer] or into the tool of an anti-Führer, and thereby seeks to dismantle the state by means of the judiciary. This is an often proven method not only for the destruction of the state, but also for the destruction of law. It was characteristic of liberal legal thought, given its legal blindness, to try and convert criminal law into the grand charter, into the “Magna Carta of the criminal” (Fr. v. Liszt). In the same manner, constitutional law was transformed into the Magna Carta of traitors [Hoch- und Landesverräter]. Consequently, the judiciary becomes a calculating machine [Zurechnungsbetrieb] through whose predictable and foreseeable operations the criminal has won his well-earned subjective right. But, in this respect, state and Volk are completely bound up in a supposedly all-embracing legality. In the case of an emergency, some liberal jurists, bowing to the factual situation, might secretly grant some apocryphal loopholes to the state and the people. Other such jurists, in the name of the constitutional state, would deny the state such latitude and declare the emergency to be “legally nonexistent.” The Führer’s claim that he acted as the “supreme judge of the Volk” cannot, however, be grasped within the framework of this kind of jurisprudence. The latter can only reinterpret the judicial act of the Führer as a measure of a state of siege that requires retroactive legalization and indemnity. A fundamental principle of our present constitutional law – that is, the priority it affords political leadership – would thereby be turned into a juridically irrelevant empty phrase, and the gratitude that the Reichstag expressed to the Führer on behalf of the German Volk would be turned into indemnity or even acquittal.
Actually, the Führer’s deed was an exercise of true jurisdiction. His deed is not subordinate to justice but itself constitutes supreme justice. It was not an action of a republican dictator who creates facts in a lawless space, while the law closes its eyes for a moment only so that the fictions of all-embracing legality can then again be grounded on the newly created facts. No, the judicial power of the Führer originates in the same source of law from which the law of every Volk flows. Supreme law proves itself in the moment of ultimate distress, at which point appears the highest degree of judicial, vengeful realization of this law. All law originates in the Volk’s right to life [Lebensrecht]. Every public statute, every judicial sentence only contains as much justice as is provided by this source. The rest is not law, but merely a “meshwork of positive mandatory norms,” mocked by any clever criminal.
In sharp contrast, the Führer emphasized the difference between his state and administration and the state and administration of the Weimar system: “I did not want to hand over the new Reich to the fate of the old…. What happened on January 30th was not the creation of yet another administration, but the elimination of an old and sick era by a new regime.” When the Führer demands the liquidation of this woeful chapter of German history with such words, this entails judicial consequences for our legal thinking, practice, and interpretation. We have to examine afresh our methods and reasoning, as well as the prevailing doctrines and decisions made by the highest courts in all fields of law. We cannot blindly adhere to judicial concepts, arguments, and precedents that are products of an old and sick era. Some statements from the conclusions of previous holdings can certainly be understood as justified resistance against the old system’s corrupt nature. But to uphold them thoughtlessly today would change their meaning and transform the judiciary into an enemy of our present state.
If, in June 1932, the Reichscourt (RGSt. 66, 368) understood judicial independence in terms of the court’s duty to “protect the citizen in his legally recognized rights from potentially arbitrary state power exercised by a hostile government,” it advanced this doctrine from a liberal individualist perspective. “Judicial power is here understood to be opposed not only to head of state and government, but also to the administrative body in general.” This position is understandable in its historical context. Today, however, we are obliged to assert the new meaning of all public institutions, including the judiciary, with all decisiveness.
At the end of the 18th century, old [Karl Friedrich] Häberlin linked the question of emergency law to the problem of differentiating between judicial affairs and government affairs. He taught that, in case of danger or great harm for the state, a government could declare judicial affairs to be government affairs. In the 19th century, [Gabriel Michel] Dufour, one of the fathers of French administrative law, defined the act of government (acte de gouvernement, which is exempt from ex-post judicial examination) to be oriented towards the defense of society – a defense against external and internal, secret and open, present and future enemies. Regardless of what one may think of such designations, they point to a juridically significant specificity of political “acts of government” that, even in liberal constitutional states, procured legal recognition. In a Führerstaat, however, legislative, executive, and judicial branches do not distrustfully control one another. What is therefore usually legitimate for an “act of government” must apply, to an incomparably greater extent, to a deed through which the Führer demonstrated his highest Führertum [domain as Führer] and judicial power.
The Führer himself determines the scope and content of his course of action. His address assured us again that the state of “normal law” had been restored as of the night of Sunday, July 1st. The statute on measures of state self-defense from July 3rd 1934 (RGB1. I. S. 529) designates the temporal and factual scope of the Führer’s immediate action in the form of executive legislation. Acts committed within or outside the timeframe of these three days that were not associated with the acts of the Führer, that is, “special actions” that were not authorized by him, are all the more grave injustices the higher and purer is the Führer’s law. The declarations of Prussian Prime Minister Göring of July 12th and Reichstjustizminister Gürtner of July 20th 1934 demand especially strict prosecution of such special actions. Given the above mentioned specification of government acts and acts of the Führer, it should be self-evident that, in case of doubt, the courts possess no competence over the classification of authorized and unauthorized acts.
Within the timeframe of those three days, the acts of the Führer through which he, the leader of the movement, avenged the specific betrayal of him as the highest political leader by his Unterführers, acquire a special significance. The leader of the movement as such undertakes a specific judicial task, whose inner justice [inneres Recht] cannot be realized by anyone else. The Führer explicitly emphasized in his Reichtags speech that the National Socialist Party is the sole bearer of the political will. But a community that is, in such manner, arranged and composed of state, movement, and Volk, is also characterized by the inner right [innere Recht] of those state supporting orders of life and community, which are predicated in a special way on the oath that declares fidelity to the Führer. No less than the fate of the political unity of the German Volk itself depends on the party’s ability to fulfill its task. “This enormous task, in which all danger of the political accumulates, cannot be carried out by any other actor, least of all by a judicially proceeding civil court. Here the party and the SA are on their own.” Consequently, the Führer, as political leader, here became the supreme judge in a specific way due to the specific qualification of the crime.
The Führer repeatedly reminds us of the collapse in 1918. This date determines our present situation. In order to understand correctly the events of June 30th one must not divorce the events of this and the two subsequent days from the context of our general political situation. Procedural methods cannot empty these events of all substance by isolating and circumscribing them; they cannot be turned into “purely legal” matters as procedural methods typically do. Such methods can never do justice to a highly political event. But such methods have for too long, over previous decades, characterized attempts to poison the German public, and it has been a longstanding trick of propaganda hostile to Germany to portray this particular kind of proceduralism as the only type that is truly “constitutional.” In the fall of 1917, constitutionally confused parliamentarians, capitalists, communists, clerics and atheists alike, demanded in strange unity that Germany’s political fate be handed over to such procedural fictions and distortions.
A spiritually empty bureaucracy did not even manage to grasp emotionally the political meaning of such ”juridical” demands. Some of Germany’s enemies will respond with similar demands to Adolf Hitler’s deed. They will be outraged to find that the present German state has the strength and will to distinguish friend from enemy. They will promise us the whole world’s praise and acclaim if we, as we did in 1919, fall down and sacrifice our political existence to the idols of liberalism. Those who recognize the overwhelming background of our general political situation will understand the admonitions and warnings of our Führer. They will arm themselves for the great spiritual struggle in which we must protect our own righteous law.