Legal Counterrevolution: Property and Judicial Power in the Weimar Republic

This article offers a new account of the rise of judicial power in modern Germany. Strong judicial control of the government is often associated with the constitutional ethos that emerged in postwar West Germany as a reaction to Nazi rule. This article locates the origins of German judicialization in the political struggles of the Weimar era. It shows how the assumption of a power to judicial review by Germany's highest court, the Reichsgericht, was the product of the successful cooperation of the judiciary with conservative political parties on the issue of property rights in the young republic. These were at the centre of two controversies examined in the article: the expropriation of princes of former ruling houses and the consequences of the hyperinflation of 1923. In both cases the Reichsgericht used an understanding of property as an inalienable right to radically reinterpret Germany's first democratic constitution, which had in fact granted the legislature extensive power to modify property relations. This suited the judiciary's own objective of assuming stronger controls over legislative action and bolstered the political position of conservative forces in Weimar politics. What emerged was a supra-positive constitutionalism that sought to supersede the written constitution. These political realities were an essential context for theoretical debates on the extent and limits of judicial power between theorists such as Carl Schmitt, Hans Kelsen, Hermann Heller, Franz Neumann, and Ernst Fraenkel. An examination of the complex interaction of parliamentary, judicial, and popular politics concerning the issue of property reveals that German judicial empowerment amounted to an attempt to rewrite the Weimar Constitution and limit the scope of Germany's democratic revolution.