Translation via Kakao & Google of Carl Schmitt's 1 August, 1944article, which defends the Night of the Long Knives. The original German article is available here.
"In 1933, the leader spoke about state and law. He showed the contrast of a substantial right, not separated from morality and justice, to the empty law—equity of an untrue neutrality and developed—the inner contradictions of the Weimar system, which destroyed itself in this neutral legality and delivered to its own enemies.He then concluded the phrase: "This must be a warning to us."
"In his speech to the whole German people on 13th November, the Reichstag was a German state speech. On July 1, 1934, the leader recalled another historical warning. The strong German Empire founded by Bismarck collapsed during the World War because it did not have the power to "use of its.war articles" at the crucial moment. Paralyzed by the way in which a liberal "right-wing state" was thought, a politically instinctless civil bureaucracy did not find the courage to treat mutineers and enemies of the state under the right of law. Anyone who reads the report on the public plenary session of October 9, 1917 in Volume 310 of the Reichstag printed matter today will be shocked and understand the Fuehrer's warning. The message of the Reich government at the time that the ringleaders of the mutinous sailors had negotiated with members of the Reichstag from the Independent Socialist Party, the German Reichstag responded in sheer indignation by not curtailing a party's constitutional right to carry out propaganda in the army and that conclusive evidence of high treason was lacking. Kun, this conclusive evidence was spat in our faces a year later by the Independent Socialists. With unprecedented bravery and terrible sacrifices, the German people stood up to a whole world for four years. But his political leadership has sadly failed in the fight against poisoning and the undermining of German law and a sense of honor. To this day we atone for the inhibitions and paralysis of the German governments of the world war.
"All moral indignation over the shame of such a collapse has accumulated in Adolf Hitler and has become in him the driving force of a political act. All experiences and warnings in the history of the German misfortune are alive in him. Most fear the harshness of such warnings and prefer to flee into an evasive and balancing superficiality. But the Fuhrer takes the lessons of German history seriously. That gives him the right and the strength to establish a new state and a new order.
"II. The Fuehrer protects the law from the worst: abuse, if at the moment of danger he creates justice by virtue of his leadership as the highest judge: "At that hour I was responsible for the fate of the German nation and thus the German people in the highest level Judge. The true guide is always also a judge. Judgeship flows from leadership. Anyone who wants to separate or even oppose each other in: ies makes the judgII. The Fuehrer protects the law from the worst: abuse, if at the moment of danger he creates justice by virtue of his leadership as the highest judge: "At that hour I was responsible for the fate of the German nation and thus the German people in the highest level Judge. The true guide is always also a judge. Judgeship flows from leadership. Anyone who wants to separate the two from one another or even to oppose them makes the judge either a counter-leader or a tool of a counter-leader and seeks to unhinge the state with the help of the judiciary. This is a tried and tested method not only of the destruction of the state, but also of the law. It was characteristic of the legal blindness of liberal legal thinking that one sought to turn criminal law into the great license, the "Magna Charta of Criminals" (Fr. v. Liszt). Constitutional law then had to become the Magna Charta of treason and treason in the same way. The judiciary is thereby transformed into an imputed enterprise, to whose predictable and predictable functioning the criminal has a well-earned subjective right. State and people, however, are completely tied up in an allegedly complete legality. For extreme emergencies, he may be secretly granted apocryphal emergency exits, which are recognized by some liberal law teachers as the case may be, and denied by others in the name of the constitutional state and viewed as "legally non-existent". With this kind of jurisprudence, however, the Fuehrer's word that he acted as "the people's highest judge" is incomprehensible. It can only reinterpret the Fuehrer's judicial act as a measure of the state of siege that needs to be legalized retrospectively The sentence of our current constitutional law, the principle of the primacy of political leadership, is thereby twisted into a legally insignificant phrase and the thanks that the Reichstag has expressed to the Führer in the name of the German People into an indemnity or even an acquittal.e either a counter-leader or a tool of a counter-leader and seeks to unhinge the state with the help of the judiciary. This is a tried and tested method not only of the destruction of the state, but also of the law. It was characteristic of the legal blindness of liberal legal thinking that one sought to turn criminal law into the "lVIagna Charta des Criminal" (Fr. von Liszt). Constitutional law then had to become the Magna Charta of treason and treason in the same way. The judiciary is thereby transformed into an imputed enterprise, to whose predictable and predictable functioning the criminal has a well-earned subjective right. State and people, however, are completely tied up in an allegedly complete legality. For extreme emergencies, he may be secretly granted apocryphal emergency exits, which are recognized by some liberal law teachers as the case may be, and denied by others in the name of the constitutional state and viewed as "legally non-existent". With this kind of jurisprudence, however, the Fuehrer's word that he acted as "the people's highest judge" is incomprehensible. It can only reinterpret the Fuehrer's judicial act as a measure of the state of siege that needs to be legalized retrospectively The sentence of our current constitutional law, the principle of the primacy of political leadership, is thereby twisted into a legally insignificant phrase and the thanks that the Reichstag has expressed to the Führer in the name of the German People into an indemnity or even an acquittal.
"In truth, the Fuehrer's act was real jurisdiction. It is not subject to the judiciary, but was itself the highest judiciary. It was not the act of a republican dictator who, while the law closes its eyes for a moment, creates accomplished facts in a space devoid of the law, so that the fictions of complete legality can then take place again on the ground of new facts thus created . The Fuhrer's judicature arises from the same source of law from which all the law of every people arises. In the greatest need the highest right proves itself and appears the highest degree of judicially avenging realization of this right. All right comes from the people's right to life. Every state law, every judicial judgment contains only as much law as it flows from this source. The rest is not a right, but rather a "positive set of compulsory norms" which a skilful criminal scoffs at.
"III. In sharp opposition, the Führer emphasized the difference between his government and his state and the state and the governments of the Weimar system: "I did not want to surrender the young Reich to the fate of the old." "On Jan. 30, 1933, a new government was not formed for the umpteenth time, but a new regiment removed an old and sick age." If the Fuhrer calls for the liquidation of a dismal section of German history with such words, it is also of legal significance for our legal thinking, for legal practice and interpretation of the law. We have to re-examine our previous methods and lines of thought, the prevailing doctrines and the preliminary decisions of the highest courts in all areas of law. We must not blindly adhere to the legal terms, arguments, and precedents produced by an old and sick age. Many a sentence in the reasons for the decision of our courts can of course be understood from a justified resistance to the corruption of the system of that time; But even that, if carried on thoughtlessly, would mean the opposite today and make the judiciary the enemy of today's state. When the Reichsgericht in June 1932 (RGSt. 66, 386) saw the point of judicial independence in "protecting the citizen in his legally recognized rights against the possible arbitrariness of a government hostile to him", it was spoken from a liberal, individualistic attitude. “The judges' turn is thought of as a front position not only vis-à-vis the head of state and the government, but also vis-à-vis the administrative organs in general.” 1) That is understandable from that time To enforce institutions, including the judiciary, with the greatest determination.
"At the end of the 18th century, the old man linked the question of state emergency law with the question of the delimitation of judicial matters and government matters and taught that in the event of danger or great damage to the state, the government could turn any judicial matter into a government matter to explain. In the 19th century, Dufour,. one of the fathers of French administrative law, which defines the act of government (acte de gouvernement), which is beyond judicial review, as meaning that its aim is the defense of society, namely the defense against internal and external, open or hidden, present or future enemies be. Whatever one may think of such provisions, they in any case point to a legally essential peculiarity of the political "government acts" which have gained legal recognition even in liberal constitutional states. In a leader state, however, in which legislation, government and judiciary are mutually exclusive not, as in a liberal constitutional state, mutually mistrustful control 2), what is otherwise legal for an "act of government" must apply to an incomparably higher degree to an act through which the Führer has proven his highest leadership and judiciary.
"The Fuhrer himself determines the content and scope of his action. The speech once again ensured that the state of "normal justice" has been restored since Sunday, July 1, 1934 ) denotes in the form of a government law the temporal and material scope of the immediate Führer action. Outside or within the time range of the three days, unrelated to the Führer action and not authorized by the Führer, "special actions" are all the more serious injustice, the higher and purer the right of the leader is. According to the declarations of the Prussian Prime Minister Göring on July 12 and the Minister of Justice Gürtner on July 20, 19341), particularly strict prosecution of such inadmissible special procedures is ordered. That the delimitation of authorized and unauthorized action in case of doubt cannot be a matter for the courts, should be self-evident from the previous indications about the peculiarity of the act of government and the action of the Fuhrer.
"IV. Within the total scope of those three days, those judicial acts of the Führer stand out particularly through which he as leader of the movement atoned for the particular breach of faith committed against him as the highest political leader of the movement by his subordinates. As such, the leader of the movement asked for a judicial task, the internal right of which cannot be realized by anyone else. In his speech in the Reichstag, the Fuehrer expressly emphasized that there is only one bearer of political will in our state, the National Socialist Party. But a community that is structured and ordered in such a way into the state, movement, people, also includes the own internal right of those state-supporting life and community orders which are based in a special way on the oath of loyalty to the Führer. The fact that the party fulfills its task depends today no less than the fate of the political unity of the German people themselves. "This enormous task, in which the whole danger of the political is accumulated, cannot be done anywhere else, least of all remove a civil court from the party or the SA, which proceeds in the form of a judicial procedure. Here it is entirely up to itself "2). Here, because of the special qualification of the crime, the political leader has become the highest judge in a specific way.
"V. Again and again the Führer reminds us of the collapse of 1918. This is where our current situation is determined. Anyone who wants to judge the serious events of June 30th correctly must not take the events of this and the two following days out of the context of our overall political situation and isolate and encapsulate them according to the type of certain criminal procedural methods until the political substance has been driven out and only then a "purely legal factual element" or "non-factual element" remains. Such methods cannot do justice to any highly political process. But it belongs to the poisoning of the people of the last decades and is a trick of anti-German propaganda that has been practiced for a long time, precisely this isolation, experienced as the sole "rule of law" to present. In the autumn of 1917 all German parliamentarians, confused in their legal thinking, namely capitalists and communists, clericals and atheists, demanded with remarkable unanimity that Germany's political fate should be surrendered to such "processual fictions and distortions," and one spiritually The helpless bureaucracy at that time did not even feel the political sense of those "legal" demands emotionally. When faced with the act of Adolf Hitler, some enemies of Germany will come with similar demands. You will find it unheard of that today's German state asked for the strength and the will to distinguish friend and foe. They will promise us the praise and applause of the whole world if we again fall down, as we did in 1919, and sacrifice our political existence to the idols of liberalism. Anyone who sifts through the enormous background of our overall political situation will understand the admonitions and warnings of the Führer and prepare for the great spiritual battle in which we have to uphold our right."
No comments:
Post a Comment