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DEVELOPMENTS. Review Essay – Ernst Forsthoff and the Intellectual. History of German Administrative Law. By Florian Meinel*. [Christian Schütte, Progressive. Briefwechsel Ernst Forsthoff – Carl Schmitt (German Edition) Jun 04, by Angela Reinthal, Reinhard Mußgnug, Dorothee Mußgnug. Request PDF on ResearchGate | On Jan 1, , Florian Meinel and others published Review Essay – Ernst Forsthoff and the Intellectual History of German.

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Skip to main content. Log In Sign Up. Ernst Forsthoff in Frankfurt. Ernst Forsthoff in Frankfurt: Caldwell, Rice Fodsthoff Ernst Forsthoff’s time at the University of Frankfurt, fromoverlapped with his most forstyoff involvement with the National Socialist revolution. It was in this period that his programmatic work, The Total State, torsthoff, and he authored a series of articles extolling National Socialist measures. Sometime in orhowever, he broke with the party ernet with his mentor Carl Schmitt, who was seeking to solidify his place as the crown jurist of National Socialism through radical attacks on Jews in the German legal tradition.

In a personal letter from cited by his student and biographer Hans H. Klein, Forsthoff stated that he ernt initially pinned “high hopes on National Socialism” and had a positive relationship to the movement, but by had “seen his error and from a supporter became a determined opponent.

Klein, “‘Der totale Staat’: Kolloquium aus Anlass des Duncker und Frosthoff,32 n. For a general description of the field that illustrates Forsthoff’s peculiar place: Walter de Gruyter, esp. Ewald Grothe, Zwischen Geschichte und Recht: Deutsche Verfassungsgeschichtsschreibung Munich: His student Karl Doehring, for example, states that the Republic had descended into a chaos of thirty parties, where the only alternatives left were communist dictatorship, military dictatorship, or National Socialism; Forsthoff, on Doehring’s interpretation, believed that the Nazi success signaled the “possibility of restoring conditions commensurate with human dignity.

And then Forsthoff fell victim to the movement: Vandenhoeck und Ruprecht, It is important to note, however, that opposition to National Socialism need not mean opposition to authoritarianism or even a fascist dictatorship.

Ernst Forsthoff in Frankfurt | Peter C. Caldwell –

Deutsche Hochschullehrer gestern und heute, ed. Verlag Rolf Seeliger, Leben und Werk,” Sember Apertus: Springer,III: But the different emphases matter a great deal.

For at stake is how one reads one of the crucial figures of public law and political thought in the early decades of the Federal Republic of Germany. Forsthoff’s Frankfurt years followed him for the rest of his life, sowing doubt and distrust among others, including other conservatives. If represented a youthful aberration, than was he capable of making such a grand error again? If it reflected a deeper affirmation of dictatorship, then could a deeper strategy underlie his critical views on constitutional democracy?

With these issues in mind, the present essay seeks to answer two questions. First, what were Forsthoff’s political and legal positions before that might have 6 Jerry Z.

Muller, The Other God that Failed: Princeton University Press, Zur Verwaltungsrechtslehre Ernst Forsthoffs Berlin: Forsthoff, I will argue, was a careful, critical legal thinker with an eye for complex detail already before He had also, however, imbibed much of Carl Schmitt’s suggestive language about a new form of authoritarian state. His desire to make Schmitt’s state a reality led to a suspension of his critical and complex legal judgment, I will argue.

Second, what precisely did Forsthoff advocate in the first years of the dictatorship? Not only did he support the dictatorship; not only did he endorse the anti-Semitic measures of the first years hardly a surprise given his upbringing in a nationalist, conservative, Protestant family.


Forsthoff’s Frankfurt years were something more than a case of romantic fever; they were years of active engagement and attempts to shape the National Socialist project, whatever the distance that he so clearly put between himself and National Socialism after Forsthoff in Weimar 8 On Forsthoff’s personal life, see the most comprehensive account in Florian Meinel, Der Jurist in der industriellen Gesellschaft: Ernst Forsthoff und seine Zeit Berlin: Beck, But Schmitt was more than that for Forsthoff and for other young, anti- republican intellectuals in the Republic.

He offered a historical narrative and political analysis of the inevitable instability of liberal democracy, and the threat it posed to order, a history that paralleled the grand reactionary narratives of Joseph de Maistre and others of the nineteenth century, updating them for the cynical mood of post-war Germany.

These themes shaped Forsthoff’s thinking before Three aspects of Schmitt’s political narrative were essential to Forsthoff.

First, according to Schmitt, the 19th century was marked by a struggle between the concept of democracy and the concept of the Rechtsstaat. These were notably concepts rather than empirical political or social or economic history. Schmitt understood “democracy,” for example, as the direct identity of people and state, on the basis of some homogeneous quality Artgleichheitto the exclusion of representation and rules. Akademie, Jurist in der industriellen Gesellschaft, Duncker und Humblot, and passim.

It foorsthoff rules and procedures that would create gaps between the people and the state: The concepts that Schmitt used to describe the system contradicted each other; therefore, in Schmitt’s narrative, the system itself was contradictory.

Second, the problem of the state, for Schmitt the ultimate truth of politics, underlay this contradiction. The “political,” Schmitt argued in faux Kantian terms, had its foundation in the distinction between friend and enemy, a distinction that furthered internal unity. A state unable to grasp its real foundation in the potential for war or civil war would necessarily remain existentially threatened, internally and externally. Munich, Third, Weimar constitutionalism asserted the predominance, not of the demos or the state, but of the rules for creating and limiting both.

Weimar liberal proceduralism could not ensure homogeneity or power, on Schmitt’s account in ; it could not clearly distinguish between friend and enemy. Weimar lawyers, worst of all, could not even grasp the internal logic of the bourgeois Rechtsstaat, for example the way that it should have forbidden the expropriation of the property of the former governing royal families.

Pluralism proved the major threat to the unity of the state. It is rather to indicate what Forsthoff saw in him. Duncker und Humblot, Schmitt’s argument involves a prior concept of the constitution that excludes certain types of legislative acts as illegitimate: Fink, Schmitt for him was not an ambiguous intellectual adventurer, but a beacon, providing sure insights into the crisis of the modern world.

Hermann Heller’s use of Schmitt before he became a professor at Frankfurt is proof of that. Not that he avoided controversy.

To be sure, the essay on Art. David Dyzenhaus, Legality and Legitimacy: Clarendon, The only proper forsthof amendment, in other words, had to change the text for the foreseeable future, rather than suspending rules for a certain length of time—a definition not in evidence in the constitutional document itself.

Forsthoff argued–like Schmitt–from prior conceptual definition to the law itself; his assertions lacked clear positive law to support them. The work argued in support of Bavaria’s attempt to circumvent the Republikschutzgesetz, but ernwt a legal point of view that pointed out the full complexity of the law.


His work on Art. But his analysis cannot yet be fogsthoff to his political vision; the concern with complexity alone revealed a level of professional competence rarely achieved by his mentor Schmitt.

Afterseveral themes began to develop that would play into the next, more politicized phase of his scholarship. First, Forsthoff began to elaborate on the meaning of World War One for German institutions, putting Schmitt’s criticism of the bourgeois Rechtsstaat into an immediate political narrative. But, as in his work on legal institutions, Forsthoff was more precise and detailed than was Schmitt: The analysis was complex and astute; Forsthoff did indeed pinpoint a major structural change that went beyond the exigencies of wartime.

But he also embedded this legal shift in the narrative forsthofv crisis and decline borrowed from Schmitt, and it was this element of his work showed his rejection of the Weimar system per se. By implication, the “state,” as a public thing, was to be an arena where plans and motives become public and known, rather then concealed.

The most important institutions of the bourgeois Rechtsstaat were accordingly representation, parliament, and the right of free expression: Ofrsthoff for him the distinction between public and private was subordinate to a prior decision by the state on the content of each, a prior decision on order: The exclusive criterion is the concrete decision of the state over what is public and what private. This was in fact rather contorted reasoning, which started with an a priori concept of “state” and deduced the conclusion from the concept assumed.

It seems probable that such a use of concepts contributed to the positivist Richard Thoma’s apparently lukewarm reception of Forsthoff in Bonn after Schmitt’s departure for Berlin. Meinert provides a citation from Marschall Freiherr von Bieberstein that suggests that a difference of opinion over federalism was at issue Jurist in der industriellen Gesellschaft41 n. The state forstohff into “pluralism” and “polycracy,” of multiple social groups and multiple actors within the state especially the municipalities endowed with political powers: Thoma’s more basic political distrust of Schmitt, however, may have played a far greater role.

Ernst Forsthoff – Wikiwand

But in this work, as in his similar monograph on the crisis of the municipal administration of the following year, the precise nature of that authority remained unclear. But even here, his vision of the future remained vague. While on the one hand defending the tradition of municipal self-administration dating from the time of the Freiherr vom Stein, Forsthoff argued that the intervention of the Reich into communal finances sincethe transformation of stable municipalities into the mass city Grossstadt of modernity, and the effects of Art.

Forsthoff’s Pseudonymous Writings The points of criticism in Forsthoff’s pseudonymous publications were virtually identical to those in the essays he published under his own name. The difference lay in how explicit his conclusions were.

Five points dominated his arguments: First, Forsthoff argued that the bourgeois liberalism that dominated the pre- war world had degenerated into pluralism; faith in reason, the rule of law, and parliament has decayed and indeed was but weak to begin with.