2.1 Introduction

The political theory of Hans Kelsen, developed during the 1920s and early 1930s, represents a sustained attempt to provide a coherent theory of constitutional multiparty democracy for European interwar democracies.Footnote ¹ Kelsenian political theory arose in the particular context of the creation of the Austrian First Republic, as a constitutional multiparty democracy, resulting from the collapse of the Austro-Hungarian Empire and the Treaty of Saint-Germain-en-Laye (1919).Footnote ² This was combined with the debate, within Austrian social democracy over the character of the new state and the form of state intervention in its economy.Footnote ³ Thus, from its inception, Kelsenian political theory is distinguished by the elaboration of a theory of constitutional multiparty democracy that explicitly articulated itself within and against the wider political dynamics of this European interwar period.

The gradual weakening of European interwar democracies and, in particular, the transformation of a significant proportion of the democracies created after the end of the First World War into nondemocratic regimes during the 1930s, revealed the fragility of European interwar democracy. This fragility, which marked the conclusion of Kelsen’s political theory of this period, was not, however, unacknowledged by Kelsen.Footnote ⁴ It is a fragility that is specifically thematised by Kelsen in ‘La dictature de parti’ (1935).Footnote ⁵

It is this work of Kelsen that is the initial, detailed focus of the chapter in order identify the distinctively Kelsenian understanding of the underlying fragility of interwar, multiparty democracies and the capacity for this fragility to enable their internal transformation into a one-party state: the party dictatorship. The initial focus upon the distinctive Kelsenian thematisation of the fragility of interwar democracies is then broadened through a comparative examination of the contemporaneous early work of Franz Neumann, The Rule of Law: Political Theory and the Legal System in Modern Society (1936).Footnote ⁶ Neumann’s approach, in distinction to that of Kelsen, situates the origin and fragility of interwar democracy in a broader historical and conceptual analysis of the emergence of the notion of the Rechtstaat and the fragility of the Weimar Republic, as a social Rechtstaat, as the basis for the installation of the one-party state under National Socialism. The comparative examination enables the critical reflection upon the Kelsenian approach to be compared with that of the early work of a later member of the Institute for Social Research (Frankfurt School) and to establish the degree of affinity between these two critical reflections and their respective conceptual frameworks.Footnote ⁷

This comparative examination emphasises that for both Kelsen and Neumann, the collapse of the interwar democracies revealed a fragility in democracy that is to be comprehended as extending beyond the confines of a strictly historical or conjunctural approach. Democracy, in the form of a representative democracy composed of political parties, includes rather than excludes fragility. Thus, in representative democracy, there remains an inherent fragility whose exacerbation and limitation become the common focus of their critical reflections.

2.2 Kelsen: From Democracy to Autocracy

Kelsen’s ‘La dictature de parti’ (1935), presented as a report to the Institut International de Droit Public, was conceived from its inception as an explication of the gradual weakening of European interwar democracies and their increasing tendency to transform into nondemocratic regimes.Footnote ⁸ As a report, the format of the analysis presumes a position of detached explication, which, therefore, intersects with a broader methodological orientation. This approach is predicated upon ensuring the detachment from the recourse to or assertion of values in the analysis, which are designated as inherently subjective, in order to commence from a non-subjective foundation. The Kelsenian analysis commences not from democracy as the assertion of a subjective value but from the non-subjective foundation of democracy as the existing system of European, interwar multiparty democracy. From this foundation, the analysis then focuses upon instances where this form of multiparty democracy has been transformed into a party dictatorship.Footnote ⁹ Hence, it traces the internal transformation of an existing political system, and it is the description and characterisation of this transformation that provides the explication of the fragility of European interwar democracy.

The existing political system of European interwar multiparty democracies was characterised by the formation of a common willFootnote ¹⁰ from ‘the free play of different groups of interests constituted by political parties’.Footnote ¹¹ The will of the democratic state arises solely from the formation of this common will, and it is formed through a procedure of democratic will formation in which the opposed interests of political parties are reconciled, and in this reconciliation, the common will is generated as a process of compromise. The state, as a democratic state, is distinguished by its procedure − the creation of commonality from the plurality of opposed interests of the political parties − which rests upon the continued reproduction of compromise. It is the fragility of this procedure − the absence of compromise and the assertion of the interest of a particular party as the common will − which, for Kelsen, contains the ‘risk of transformation into its opposite, into autocracy’.Footnote ¹²

The risk, rather than the expression of a merely conceptual possibility, is held to have had its initial, contemporary realisation in the ‘new form’ of autocracy resulting from the ‘socialist revolution which broke out in Russia, following the [first] world war’Footnote ¹³ and its opposed analogue of Italian fascism.Footnote ¹⁴ The designation of these two opposed party dictatorships, as Bolshevism and fascism, had by the 1930s, ceased to be confined to a particular state; each had become a ‘generic term’ describing the existence of the dictatorship of the proletarian party and the dictatorship of the bourgeois party, respectively.Footnote ¹⁵ Thus, the party dictatorships, in the form of the autocratic regimes in Russia, Italy, and Germany, become the subject of a descriptive explication that has a wider heuristic purpose: a typology and differential categorisation of modern autocracy in comparison with the political system of European interwar multiparty democracy.Footnote ¹⁶

The transformation of a political system of multiparty democracy into the dictatorship of a single party involves the forcible seizure of power by one party, the subsequent exclusion and suppression of all other existing political parties and the prevention of the organisation of new parties.Footnote ¹⁷ The capacity of this party to seize power requires that it has itself, within the framework of the preceding multiparty democracy, already undergone a preparatory transformation. The forcible seizure of power requires that the party has the capacity to exercise military force.Footnote ¹⁸ The further process of transformation is therefore differentiated by whether the seizure of power is the result of a revolution − Russia − or of an effective transfer of power by the existing institutions of the democratic political system − Italy and Germany.

The forcible transformation is accompanied by the complete disappearance of ‘the clear separation, characteristic for democracy, between the organization of the parties and the organization of the state’.Footnote ¹⁹ The organisation of the party which has assumed the position of a party dictatorship extends to the conferral of ‘state posts of any importance’: the party dictatorship creates a state party in which ‘the organization of this party is the sole determinant of the will of the state’.Footnote ²⁰ The character of this organisation differs in accordance with the degree to which ‘the preceding formal organization of the state finds itself subordinated to the organization of the party’.Footnote ²¹ Russian Bolshevism engaged in a complete subordination of this preceding formal organisation to the party, distinguishing it from the ‘juxtaposition’Footnote ²² of the preceding formal organisation of the state and the party under Italian and German fascism. The primacy of the party, under Italian and German fascism,Footnote ²³ was ensured by the dual role of the leader as both party leader and leader of the government − a unity of state and party through ‘personal union’.Footnote ²⁴

These two typologies of subordination are then reflected in the approach to the preceding juridical organisation of the multiparty democracy as a constitutional order. The underlying commonality of the three-party dictatorships was to render their transformation of the preceding constitutional order − republican (Russia, Germany) or constitutional monarchy (Italy) − into an empty juridical form. The preceding constitutional order was retained as a façade for the organisation of the party and its ‘possibilities for expansion’.Footnote ²⁵ The differentiation between the three-party dictatorships is drawn between that of Russian Bolshevism, whose constitutional façade was produced through the abolition of the preceding constitutional order and the promulgation of a new constitution,Footnote ²⁶ and that of Italian and German fascism, whose constitutional façades involved the preservation of significant aspects of the preceding constitutional order.Footnote ²⁷

The hollowing out of the juridical character of the constitutional order, within which the party dictatorship determines and exercises the will of the state, is the corollary of ‘the total suppression of political and personal liberty’.Footnote ²⁸ The liberty of European interwar democracy, differentiated into political and personal spheres, is to be understood in the specifically Kelsenian sense of types of liberty which arise through their expression as legal norms of positive law within the particular domestic legal system of each European interwar democracy. The normative framework of positive law, which expresses these liberties guarantees the domains of political and personal liberty and, through this guarantee, prevents the institutions of the democratic state and the political parties from encroaching arbitrarily upon these domains. The guarantee is that provided by an entirely positive system of legal norms, which is neither the state’s self-delimitation, created by a state sovereignty which precedes the law, nor the translation of a preceding subjective right into an objective system of legal norms.Footnote ²⁹ These domains of liberty, as demarcated by the legal norms of an autonomous legal system of positive law, are situated beyond the dualisms of state and law and subjective right and objective law. The transformation into an autocratic nondemocratic political system is the suppression − overt abrogation or loss of practical effect − of these legal norms of positive law.

Within this suppression of political and personal liberty, Kelsen considers that the primary focus of active suppression is upon political liberty, with a more differentiated approach to personal liberty. The suppression of political liberty and, in particular, that of political participation as a member of other political parties who, in turn, are elected through a process of universal suffrage is undertaken through the substitution of the dictatorship of one party. The party dictatorship, should it decide to preserve or maintain a legislative body, ensures that it is composed either ‘exclusively, or in an overwhelming majority’Footnote ³⁰ of the members of its party. Political participation and a process of election are replaced with the prerequisite of membership of this one party and the reduction of the process of election to one of the selection and nomination of party members or those considered loyal to the party. The notion of democracy is thereby either rendered merely ideological or entirely eliminated. Under Bolshevism, in which the party dictatorship was presented as the representative of a class − the proletariat − which ‘aims at the suppression of class oppositions and consequently as the establishment of prefect freedom’, democracy ceased to be a political system and has become ‘a collective ideal’.Footnote ³¹ Under fascism, in both its Italian and German variants, democracy was entirely eliminated and replaced with the party dictatorship as ‘representative of the entire people unified in the nation’.Footnote ³² Insofar as the fascist party dictatorships sought to retain and present the appearance of consent, recourse was made to plebiscites. The further distinction between the Italian and German variants is, for Kelsen, German fascism’s adoption of racism as an integral element in the determination of the unification of the nation.Footnote ³³

In relation to personal liberty, Kelsen considers this from the perspective of those elements of this liberty which comprise ‘the freedom of mind essential to every democracy’.Footnote ³⁴ Here, the mind should be understood non-metaphysically as the potential for an individual’s formation of sense, meaning, and value and for its further development and expression as individual and public opinion. It is public opinion which surrounds the formal space of multiparty democracy, and it is their reciprocal interaction which shapes the political programme and interests represented by each party, the operation of universal suffrage and the selection of the party or parties of government or opposition − and, more indirectly, the character of the compromise, which determines the common will of the democratic state. The suppression of these elements thus concerns the freedom of expression in the form of freedom of the press and freedom of opinion.Footnote ³⁵

In contrast, the freedom of religion is, for Kelsen, comparatively less affected.Footnote ³⁶ For Bolshevism, it entailed, in place of simple legal prohibition, the privatisation of religion − the separation of a secular, atheistic one-party state and its institutions from religion.Footnote ³⁷ For fascism, in both its Italian and German variants, an explicit, formal accommodation with religion, in the form of Christianity, was established. Christianity and its religious observance and practice were tolerated insofar as they acknowledged and supported both fascist party dictatorships. This acknowledgement and support, in relation to German fascism, were also predicated upon the acceptance and active articulation of the party dictatorship’s antisemitism.Footnote ³⁸

This suppression, by the party dictatorships, of the space of political and personal liberty of European interwar multiparty democracies had a concomitant effect upon the formal, legal equality of those within these states, which were transformed into party dictatorships. The effect was one of the dissolution of this formal, legal equality and its replacement with generalised legal inequality: the reduction of rights to a hierarchy of statuses combined with the continued capacity for their reduction or removal and, within this hierarchy, the designation of individuals or groups with no status.Footnote ³⁹

The imposition of generalised legal inequality was accompanied by an insistent attempt to attain a degree of equality in the form of ‘a uniformity of mind’, in which Bolshevism and fascism differed only in their ideological orientation of this uniformity.Footnote ⁴⁰ The uniformity of mind is reinforced by the primacy accorded within and beyond the institutions of the party state to the ‘principle of authority’, with the attendant emphasis upon the ‘duty of discipline and blind obedience to superiors’.Footnote ⁴¹ This, in turn, has a wider effect upon schooling, higher education, and the freedom of scientific inquiry, particularly in the social sciences, which are all now organised and directed to ‘blindly serve the interest of state power’.Footnote ⁴²

The central divergence between the two types of party dictatorship centred upon their approach to the material equality of their populations after the transformation of their preceding democratic political system. This resulted from the divergent character of their relationship to the economy and ‘the opposition between the socialist economic order which Bolshevism strives to realize and the capitalist economic order which fascism endeavours to maintain’.Footnote ⁴³

It is in the relationship between the economy and European interwar democracy that Kelsen identifies significant internal weakness or fragility. For Kelsen, this is located in the comparatively more effective realisation by their parliamentary system of the task of legislation than that of administration.Footnote ⁴⁴ The comparative difference in effectiveness was exacerbated, and the internal weakness revealed with the increasing intervention of the state in ‘all domains of economic life’.Footnote ⁴⁵ In this process of increasing intervention, democracy as a ‘legislative and juridical state’, a constitutional democracy, become ‘an administrative state’, reflecting the transition from ‘the system of private capitalism, based upon free exchange’ to ‘the system of state capitalism’.Footnote ⁴⁶ The transition between these two systems of capitalism is not in itself the origin of this weaknessFootnote ⁴⁷ but, rather, the effect that this transition had upon the constitutional framework, the juridical foundation of these interwar democracies. The clear juridical demarcation between the domain of the legislative and juridical state and the economy was blurred with the intervention of the state in the economy. The blurring of this demarcation is, for Kelsen, the manner in which administration becomes the primary framework within which the parliamentary system of multiparty democracy operates. The primacy of administration is, therefore, a framework for the marginalisation of the preceding constitutional framework, ‘indispensable to a strong and stable government’.Footnote ⁴⁸ The marginalisation becomes the effective exclusion of the constitutional framework to the extent that ‘there no longer exist more than two political parties and neither of them has a guaranteed majority’.Footnote ⁴⁹ Thus, the combination of the dominance of the administrative framework and the uncertain electoral status of multiparty democracy, reduced to an essentially two-party democracy, creates a situation of governmental dysfunction. This dysfunction, because it arises within and through the parliamentary system, appears as one which is systemic rather than capable of resolution by the parliamentary system.Footnote ⁵⁰ The systemic appearance of this governmental dysfunction facilitates the actions of the party, which seeks to supplant the multiparty democracy with a party dictatorship. It enables this party to equate a constitutional multiparty democracy with governmental dysfunction − ungovernability − and to present the nondemocratic political system of a party dictatorship as the solution to this apparent governmental impasse of the constitutional, parliamentary system.

The Kelsenian presentation of the transformation of European multiparty interwar democracies into autocratic regimes governed by party dictatorships provides a description of both the fragility of interwar parliamentary democracy and the contrasting configurations of these autocratic regimes. The descriptive analysis indicates that the emergence of party dictatorships is a possibility which is internal to multiparty democracies and emphasises the significance of their transformation into party dictatorships. The descriptive mode of presentation is intended to initiate and facilitate a process of reflectionFootnote ⁵¹ in conformity with the Kelsenian methodology of a legal science of positive law. The conformity relates to two aspects of this methodology by retaining, through its descriptive approach, the separation between consciousness and will and, through the utilisation of autocracy as the contrastive term to democracy, the acknowledgement that these party dictatorships remain legal systems of positive law.Footnote ⁵² The Kelsenian insistence upon the separation between consciousness and will establishes the non-programmatic character of the descriptive analysis: it is limited to furnishing the information from which a subsequent decision to act is taken.

2.3 Neumann: From the Rule of Law to Lawless Rule

Neumann’s The Rule of Law (1936), in contrast to Kelsen’s ‘La dictature de parti’, is a longer, conventional academic work undertaken, in exile, as a research project at the London School of Economics.Footnote ⁵³ The question of the fragility of interwar European democracy is placed within a broader methodological framework which establishes the parameters for the consideration of the notion of the rule of law; and then proceeds to apply this framework in the work’s concluding chapters.Footnote ⁵⁴ The structure and progression of the text designate these final chapters − the Weimar Constitution and its transformation into National Socialism − as the concrete example through which the coherence and plausibility of the preceding methodological framework are determined.

The further contrast with Kelsen’s ‘La dictature de parti’, is that The Rule of Law presents Kelsen, without reference to his political theory, as an exclusively legal theorist propounding a pure theory of positive law. Kelsenian legal theory is a specific focus of The Rule of Law, and the methodological advance of a pure theory of positive lawFootnote ⁵⁵ is acknowledged whilst emphasising that this can only be fully realised by the adoption of a sociology of law. The basic elements of the Neumannian sociology of law are developed in the initial chapters of The Rule of Law and represent a distinct theoretical synthesis of Engels, Heller, Laski, Mannheim, Marx, Renner, and Weber.Footnote ⁵⁶ The synthesis is undertaken in relation to two main, complementary aspects. The first consists of the elaboration of a sociological theory of legal sovereignty, which is then complemented by a sociological theory of the interrelationship between law and human action. These two complementary aspects of the Neumannian sociology of law respond to an understanding of the Kelsenian methodological purification of law − a legal science of positive law − as one which results in a legal theory which is ‘self-contained and self-consistent, but solves no political problem whatsoever’.Footnote ⁵⁷

The purpose and character of the comparative assessment of Kelsen and Neumann proceeds otherwise than by re-examining the veracity of the Neumannian presentation and critique of Kelsenian legal positivism;Footnote ⁵⁸ Rather, the focus upon Kelsen’s ‘La dictature de parti’ displaces the exclusively legal presentation by Neumann of Kelsenian theory. This enables the Neumannian approach to the question of the fragility of European interwar democracy in The Rule of Law to be compared and contrasted with that of Kelsen’s ‘La dictature de parti’. The Rule of Law is therefore analysed in order to reveal these affinities and divergences, which, in turn, determine the approach to the composition and structure of the text itself.Footnote ⁵⁹

The point of transition, for Neumann, between the Kelsenian science of positive law and a sociology of law is the acceptance of the Kelsenian distinction between private and public law as non-fundamentalFootnote ⁶⁰ and then to designate the state, on the basis of a sociological theory of legal sovereignty, as the entity which determines the distribution and extent of the domains of private and public law.Footnote ⁶¹ By situating the state in this manner, a dynamic theory of socio-legal change and transformation is created based upon the pattern of the distribution of the domains of private and public law.Footnote ⁶²

Private and public law are designated as fields of legally regulated human action through which the broader relationship between the state and society is determined. The state, in the exercise of socio-legal sovereignty, regulates society through law, and the exercise of sovereignty through law renders the state’s exercise of sovereignty as predictable, legal regulation. It is in this predictability that Neumann identifies the essential characteristics of the rule of law as that which separates it from the exercise of state sovereignty in an arbitrary, unpredictable and immeasurable manner. For Neumann, this predictability − ‘measurable interference’ − creates a wider ‘compulsion of state organs to keep within the limits of the state’s own law − even if it [the state] can alter the law according to the then existing needs, [it] is preferable to a state of affairs where there is no such compulsion’.Footnote ⁶³

The legal regulation of human action through the state’s exercising of socio-legal sovereignty is the regulation of the freedom of human action.Footnote ⁶⁴ From this regulation, ‘a certain number of special liberties have emerged which are described as fundamental rights – as human rights, or as “rights of men”.’Footnote ⁶⁵ Neumann further classifies these rights in accordance with ‘the legal protection which they enjoy, or from the subject-matter which they regulate’.Footnote ⁶⁶ This, in turn, provides a typology of the rights to freedom in relation to subject matter, distinguishing individual/personal, political, economic and socio-economic rights.Footnote ⁶⁷ This classification of rights is then combined with a descriptive theory of institutions: ‘the establishment of a relationship, intended to endure, either between men or between properties or between men and property, for the purpose of regulating social processes, either organised on a hierarchical basis or as a fellowship (herrschaftlich or genossenschaftlich) and belonging either to public or to private law’.Footnote ⁶⁸

The interconnection between rights, as liberties or freedoms, and institutions is further differentiated by the main liberties and institutions, which are then surrounded by auxiliary liberties and institutions providing the ‘protection and realization’ of these main liberties or institutions.Footnote ⁶⁹ The differentiation between main and auxiliary is essentially contingent and reversible; thus, a liberty or institution can operate simultaneously as both a main and an auxiliary element.Footnote ⁷⁰ The descriptive framework of this sociology of law is then applied to the transformation of the constitutional multiparty democracy of the Weimar Republic into National Socialism. In this application, the Neumannian analysis enters, within this more restricted purview, the descriptive terrain of Kelsen’s ‘La dictature de parti’.

The socio-legal analysis of the Weimar Republic, as the rule of law within the constitutional framework surrounding monopoly capitalism, traces its economic, political, and legal transformation. For Neumann, this transformation is understood as both the difference between the Weimar Republic and the former German economic, political, and legal system and that among the economic, political, and legal dynamics within the Weimar Republic. It is through this analysis that Neumann identifies the elements of the Weimar Republic whose fragility created the conditions for its transformation into National Socialism.

The economy of the Weimar Republic, as a particular form of interconnection between rights and institutions, is one which combined the predominance of monopolies and increased state intervention in the economy.Footnote ⁷¹ The combined effect of these two aspects was an economic field traversed by both the progressive and regressive tendencies of monopolies and state intervention.Footnote ⁷² These, in turn, resulted in ‘a decisive transformation of the social stratification of society’ in which the entrepreneur increasingly became the ‘functionary of the undertaking’, and the composition of the working class became increasingly complex.Footnote ⁷³

The transformation at the level of the economy was accompanied by a parallel transformation at the level of the political system. Here, the analysis enters the Kelsenian terrain more directly and turns to the emergence of European interwar multiparty democracies as ‘the transformation of the liberal state into a mass democracy’.Footnote ⁷⁴ The transformation was reflected in the new, post-First World War constitutions ‘based upon the political principles of pluralism’ in which a ‘collectivist democracy recognized the existence of a class conflict but attempted to transform the conflict into cooperation of the classes on the basis of parity’.Footnote ⁷⁵ In relation to the Weimar Constitution, Neumann identifies its unacknowledged prefiguration in five preceding social contracts: that of the First President of the Reich Erbert, as the representative of the Social Democratic Party (SPD), and General Gröner, as the representative of Supreme Army Command (10 November 1918), to restore ordered government; the Stinnes–Legien Agreement (15 November 1918) between employer organisations and trade unions; the agreement between the government and the SPD of Berlin (4 March 1919) to institute work councils in place of revolutionary soviets; the agreement between the Reich and the Federal States (26 January 1919) recognising the latter; and the agreement among the SPD, Centre Party and Democratic Party maintaining the previous bureaucracy, judiciary and the influence of the Church as aspects of the introduction of multiparty parliamentary democracy.Footnote ⁷⁶ From these five social contracts arose a multiparty parliamentary democracy within a constitution, as a ‘social Rechtstaat’.Footnote ⁷⁷ The characterisation of the Weimar Constitution as a social Rechtstaat therefore involved according primacy to the second part of the Constitution, as the reflection of these five social contracts of parity whose provisions concerned ‘the future activities of the state’.Footnote ⁷⁸

The realisation of these future activities depends upon the character of the mass democracy in which the parliament has ‘become the stage where compromises are reached between the various partners [in] the class struggle’.Footnote ⁷⁹ It is these compromises which ensure the existence and reproduction of parity, as the state situates itself between the ‘negotiating and collaborating parties as a neutral third, which should interfere only if the social opponents do not reach agreement’.Footnote ⁸⁰ Thus, the position of the state and the continued existence of compromise depend upon the maintenance of a separation between economic and political conflicts.

The fragility of this multiparty democracy in Germany became evident from the position of the Parliament in relation to that of the state apparatus of the ‘ministerial bureaucracy’, whose personnel were protected by constitutional guarantees.Footnote ⁸¹ The initial situation of the state as a neutral third and the sovereignty of parliament became increasingly inverted, to the extent that all economic agreements between employers and workers effectively ceased in 1931, to be replaced by ‘compulsory enforcements of the state’.Footnote ⁸² The neutral state apparatus was transformed into an interventionist apparatus, and its marginalisation of multiparty democracy was reinforced by the Parliament’s ‘empowering acts, and the President of the Reich, by his emergency legislation’.Footnote ⁸³ This, in turn, exerted a broader effect upon the status of the fundamental rights contained in the provisions of the Weimar Constitution, which were all qualified rights: ‘the bureaucracy can intervene in those fundamental rights on the basis of a law’.Footnote ⁸⁴ The extent of such interventions in society increased following the significant electoral gains of the National Socialist Party in 1931 and was extended to encompass intervention in, and bureaucratic control over, the constitutional rights to the ‘freedom of meeting, freedom of press, freedom of assembly’.Footnote ⁸⁵

The fragility of the political structure of the Weimar Republic was compounded by the ‘transformation of the legal structure’ based upon the attempt by German constitutional theoristsFootnote ⁸⁶ to revive the essential limitation upon the supremacy of ‘the legislative power of Parliament’ by confining its role to the promulgation of ‘general laws’.Footnote ⁸⁷ This limitation is the corollary of the exclusive definition of legal equality as the formal legal equality of all individual legal subjects. For Neumann,

The constitutional theory of the generality of law found legal expression in the decision of the Supreme Court of the German Reich in 1921 to uphold and assert its authority to review the formal and material legality of enacted laws and ordinances.Footnote ⁸⁹ The criteria of legal standards of conduct, which informed and guided this review sought the preservation of the ‘existing state of political, cultural and economic life’.Footnote ⁹⁰ This undermined rather than preserved the ‘formal structure of law’, as its reference to legal standards of conduct refers to ‘extra-legal norms’Footnote ⁹¹; in turn, this indicates that formal, judicial decision-making was being increasingly replaced by a form of free discretion. This transformation of the judicial role in relation to the state, as a multiparty democracy, is the reflection of an alteration in the wider conceptualisation of the judicial role, as the orientation towards the preservation and absolutisation of institutions. Thus, this orientation contained the potential for the juridical transformation of a multiparty democracy into ‘the corporative state’.Footnote ⁹²

The concluding chapter of the Rule of Law presents National SocialismFootnote ⁹³ as the fundamental contrast − the transformation of the rule of law into the absence of law. The fragility of the Weimar Constitution was transformed into an economic, political, and legal order to which ‘the basic principles of a Rechtstaat’ could not be ascribed.Footnote ⁹⁴ This order was predicated upon the explicit ‘rejection of the postulate of the rule of law’, as law had now become synonymous with the will of the leader.Footnote ⁹⁵ The general character of law was replaced with commands, and law itself became retroactive, enabling ‘either the annihilation of political opponents or the legalisation of illegal measures taken during the transition period’.Footnote ⁹⁶ National Socialism was therefore orientated by the sociological principles of the complete atomisation of society, the control of private affairs by public power (totality), the effective abolition of formal equality and differentiation within society in order to create ‘reliable elites’.Footnote ⁹⁷ Hence, for Neumann, under National Socialism, ‘law does not exist in Germany, because law is now exclusively a technique of transforming the political will of the Leader into constitutional reality. Law is nothing but an arcanum dominationis’.Footnote ⁹⁸

2.4 Conclusion

The conceptualisation of the fragility of European interwar democracy and its transformation into the nondemocratic political systems of the mid 1930s form the shared orientation of Kelsen and Neumann. The commonality of their orientation extends to their determination that the internal weaknesses of European interwar democracy comprised the preliminary stage for the thematisation of its transformation into, and the further development of, nondemocratic political systems.

In ‘La dictature de parti’, the descriptive analysis utilises class analysis in its designation of the plurality of interests represented by the different parliamentary parties, and these class-based interests continue to be the orientation for the particular party dictatorships.Footnote ⁹⁹ The transformation into party dictatorship is the transition from democracy to autocracy,Footnote ¹⁰⁰ but the absence of democracy is not the absence of a legal system. The Kelsenian notion of the Rechtstaat rejects, as unintelligible, the dualism of state and law in which the law, distinguished from the state, provides its justification.Footnote ¹⁰¹ The transformation of democracy into autocracy indicates not the absence of law or a legal system but the transformation of the content of the legal system. The party which assumes the party dictatorship abolishes the procedure for the formation of a common will from a plurality of interests through the parliamentary procedure of compromise and, through this abolition, creates the capacity to fundamentally change the content of the legal system. It is this fundamental change which the weakness or fragility of European interwar democracy renders possible.

The Rule of Law, whilst confining Kelsen within the parameters of a legal science of positive law and seemingly unaware of Kelsen’s ‘La dictature de parti’, proceeds to overcome the perceived limitations of Kelsenian legal theory through the elaboration of a sociology of law. Neumann therefore maintains a sociological distinction between state and law and utilises this distinction to confront the question of the fragility of the Weimar Republic and its transformation into National Socialism. For Neumann, in contrast to Kelsen, the central focus upon the distinction between state and law, through the concept of Rechtstaat, facilitates the pertinent analysis of the Weimar Republic’s economic, political and legal characteristics. This distinction enables the definition of the Weimar Republic as a social Rechtstaat and the identification of the economic, political and legal aspects which indicate its weakness and fragility. The transformation into national socialism was thus the transformation into a state without law.

The inherent fragility of representative democracy which Kelsen and Neumann identify, and the elaboration of its exacerbation and limitation through their distinct frameworks of theoretical reflection are responses to the particular development and transformation of interwar democracies apparent in the mid 1930s. This conjunctural limit, necessarily circumscribing their presentation of the further expansion and development of the nondemocratic regimes, places the focus of their critical reflections upon the initial transformation of the inherent fragility of representative democracy, a collapse into a nondemocratic political form.

The attunement of Kelsen and Neumann to this potential transformation is also derived from the specific circumstances of the emergence of interwar representative democracies from the preceding collapse of the Austro-Hungarian Empire and the German Reich. These new representative democracies, and the particular process of democratisation from which they emerged, were accompanied, from their inception, by an explicit fragility. The distinct characteristics of these interwar democracies, reinforced by the participation of Kelsen and Neumann in their respective creation and/or preservation, are reflected in their theoretical frameworks.

Their common focus upon the comprehension of the fragility of these representative democracies led to their common attempt to locate its specificity and the potential for its exacerbation and limitation. It is in this attempt that their theoretical frameworks differentiate themselves from the tradition of classical and modern political philosophy, and it is their comparative degree of differentiation that marks the divergence between Kelsen and Neumann.

For Kelsen, the fragility of democracy is traced through the characteristics of these representative democracies themselves, with minimal recourse to the preceding tradition of classical and modern political philosophy. This corresponds to the analogous approach of Kelsenian legal theory, which seeks, even more radically in this period of Kelsen’s work, to elaborate a theory of positive law from law itself. It is this Kelsenian methodological departure which Neumann qualifies and, in this qualification, continues to uphold the pertinence of a stronger recourse to this preceding tradition of political philosophy together with the retention of a theory of law which is not exclusively positivist. This, in turn, affects their respective designation of the origin of this inherent fragility of representative democracy and the selection and interpretation of the theoretical resources with which to determine the basis of its exacerbation and limitation.

The differences between Kelsen and Neumann therefore arise from within the historical limits of their common theoretical framework or problematic, which were situated between political theory and the then emerging disciplines of political science and sociology. These theoretical limits were combined with the historical character of the interwar forms of representative democracy and of the nondemocratic regimes into which a number of these democracies collapsed. Within the historical horizon of their interventions, the fragility which is thereby revealed remains their distinctive contribution, which indicates the potential for their enduring contemporary relevance. For, this inherent fragility provides a continued connection to recent considerations in political theory, which have increasingly begun to focus upon the question of democratic legitimacy as a question which is internal or inherent to contemporary democracy.Footnote ¹⁰²

The notion of fragility is also one which marks a difference from this recent work. The difference relates, in particular, to the divergence from the contemporary emphasis upon democratic renewal through a broader notion of fragility as a phenomenon which includes the essential interconnection of democratic form and legal order. The broader conceptualisation of the notion of fragility in Kelsen and Neumann also contains a difference of emphasis between them with regard to this interconnection in the constitutional frameworks of the interwar democracies.

The Kelsenian perspective concentrates upon the democratic form and its interconnection with a constitutional order as a higher law which insists upon the centrality of a constitutional court. This centrality is the legal regulation, by the constitutional court, of the form and content of a multiparty democracy, which seeks to ensure the continued formation of the democratic common will between the political parties of which it is comprised. It is the combination of the separation and connection of law and politics, as that between a constitution and a multiparty democracy, which contains both the possibility and the inherent fragility of democracy.

The continued resonance of the Kelsenian perspective has itself become internally differentiated between a positive and a more reticent approach. This differentiation relates to the increasing prominence of illiberalism, as the contemporary manifestation of the inherent fragility of democracy, in which the dominance of a political party is achieved without the repetition of the forms of the party state which Kelsen delineates. The positive reception and recognition of the Kelsenian perspective arise, prior to the increasing prominence of illiberalism, from the difficulties encountered by contemporary constitutionalism. In particular, with regard to the systematic legal conceptualisation of multilevel government, the globalisation of constitutionalism and the notion of open-ended constitutionalism.Footnote ¹⁰³ The positive emphasis attributed to the Kelsenian perspective is then qualified with the increasing prominence of the phenomenon of illiberalism, in which the Kelsenian connection between a constitution and multiparty democracy is held to require reconfiguration.Footnote ¹⁰⁴ The central focus of the reconfiguration is upon the position of the constitutional court within this Kelsenian connection between a constitution and multiparty democracy. The reconfiguration is an institutional response to illiberalism which seeks to ensure the ‘maximum possible protection of democratic arrangements and human rights’.Footnote ¹⁰⁵ This, in turn, involves the reconsideration of the co-ordination of aspects of the Kelsenian constitutional court and, in particular, the parameters of judicial review of legislation and the neutrality of the process of judicial appointments.

The inclusion of social and economic elements, which were effectively more methodologically muted in the wider Kelsenian perspective of the 1930s,Footnote ¹⁰⁶ underlie the distinct approach of Neumann to the interconnection of a constitution and multiparty democracy.Footnote ¹⁰⁷ The expanded conceptualisation of this interconnection is reflected in the different emphasis of the notion of the inherent fragility of democracy which arises from the analyses of Neumann. This difference results from the underlying conception of the constitution as an ‘economic constitution’ (Wirtschaftsverfassung) which had shaped Neumann’s preceding experiences and publications within the framework of the Weimar Constitution prior to the work on the Rule of Law. The central emphasis is upon the inclusion of the economy within the constitution, and this inclusion involves as an integral aspect, the inclusion of labour within the constitution. The economic constitution is a juridical framework which is not confined to a conception of private, individual economic exchange but encompasses the conditions of labour together with the legal recognition and institutionalisation of the collective and democratic organisation of labour. In this manner, the economic constitution is conceived as a juridical framework which contains the potential to facilitate social transformation.Footnote ¹⁰⁸

The continued resonance of the Neumannian perspective centred upon this expanded notion of an ‘economic constitution’ is more diffuse. The resurgence of interest is evident in the earlier work of Rudolf Wiethölter and, in a different manner, in the work of Antonio Negri and Michael Hardt.Footnote ¹⁰⁹ However, both approaches reflect a selective appropriation and critical reconsideration of the notion of an ‘economic constitution’ rather than an adoption of Neumann’s position and analyses. This more selective approach reflects both the theoretical differences between the early work of Neumann and Wiethölter and Hardt and Negri’s divergences from the Frankfurt School. This is combined with the subsequent and significant transformation in the social and economic realm to which any economic constitution would extend.