This Day in Philosophy — 11 August: the Weimar Constitution is signed

On 11 August 1919 President Friedrich Ebert signed the Weimar Constitution into force. Germany's first parliamentary democracy was founded with it. The text guaranteed the separation of powers and set out fundamental rights, among them the equality of men and women.

That is an event in political history. Its entry into the history of philosophy comes from the argument it generated across the fourteen years it remained in force.

Who is sovereign?#

Article 48 of the Weimar Constitution allowed the president to govern with emergency powers whenever public order was endangered. On paper a safety valve, in practice the article opened the way to the suspension of the constitutional order by that order itself.

Out of this grew two opposed positions in legal philosophy.

Carl Schmitt opens his Political Theology, published in 1922, with the sentence: “Sovereign is he who decides on the exception.” For Schmitt a legal order cannot carry itself; every system of norms rests on a decision that determines the moment at which the norm is suspended. A rule cannot subject its own exception to a rule.

Hans Kelsen stands squarely against this. On the view he develops in the Pure Theory of Law, law is a self-consistent hierarchy of norms purged of politics and of morality. Each norm draws its validity from a higher one; at the summit stands a presupposed basic norm (Grundnorm). Sovereignty is not a moment of extra-legal decision; it is the legal order itself.

Why the argument has not ended#

After 1933, Schmitt's association with the Nazi regime cast a permanent shadow over the reading of his theory. Kelsen was forced to leave Germany and continued his career in the United States.

But the question itself did not close. States of emergency, counter-terrorism laws, the decrees of the pandemic years — the same question is still being asked: can a state under the rule of law regulate its own suspension from within the law?

Giorgio Agamben's State of Exception (2003) is written directly in this line. For Agamben the exception is not a malfunction of modern politics; it is a structure that has increasingly become an ordinary technique of government.

The text itself#

The Weimar Constitution's catalogue of rights was ahead of its time: freedom of expression, of assembly and of belief, social rights, the right to education. Its failure is explained less by defects in the drafting than by the absence of the social consensus it needed to rest on.

Which leaves a philosophical question behind it: how long can a constitution hold together a society that does not believe in it?