- The state of emergency in the Weimar Republic: legal disputes over Article 48 of the Weimar Constitution
- Tijdschrift voor Rechtsgeschiedenis
- Volume | Issue number
- 78 | 1-2
- Pages (from-to)
- Document type
- Faculty of Law (FdR)
- Paul Scholten Centre for Jurisprudence (PSC)
The article analyzes the debate on 'constitutional dictatorship' that took place at the first annual conference of the Association of German Constitutional Lawyers in Jena in 1924. In their keynote lectures, Carl Schmitt and Erwin Jacobi argued that Article 48 of the Weimar Constitution authorized the President of the Reich to derogate from the rule-of-law provisions of the constitution if this was necessary to save its 'political substance'. Advocating a 'doctrine of derogation', they implicitly criticized one of the main methodological assumptions of legal positivism, i.e., that legal norms and politics, law and power, had to remain strictly separated. They thereby set the stage for the emerging 'conflict of methods and directions' that was to haunt German jurisprudence in subsequent years.
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