The (Corona) crisis has relentlessly exposed the inability of neoliberal capitalism and its political personnel to meet the elementary needs of the people. Even if it is not felt to the same extent in Germany due to the depressing political conditions: the neoliberal offensive is in a deep existential crisis after 40 years in which it was able to achieve global hegemony.



The long struggle for a post-capitalist society

On the chances of a socialist renaissance in the historical and current political-strategic context

by Klaus Wagener in Marxist Papers (01.12.2020)

[This article published on 1/12/2020 is translated from the German on the Internet, https://www.linksnet.de/artikel/48110.]

The (Corona) crisis has relentlessly exposed the inability of neoliberal capitalism and its political personnel to meet the elementary needs of the people. Even if it is not felt to the same extent in Germany due to the depressing political conditions: the neoliberal offensive is in a deep existential crisis after 40 years in which it was able to achieve global hegemony. The inability of the neoliberal pioneer states in particular to effectively address the challenges of the pandemic has made clear the structural disproportions and misguided developments of the neoliberal counter-reformation and, in addition, is leading it to absurd excesses such as the unrestrained enrichment of the ultra-rich and the impoverishment of millions of citizens. The neoliberal mode of exploitation has proven to be a disastrous mis-development and has caused chaos in the formerly richest countries of the world that was not thought possible. The proof, previously only theoretical, has long since also been empirically proven. With hundreds of thousands of - avoidable - Covid 19 deaths, shattered economies, an obscene enrichment of the rich, amidst bankruptcies and impoverishment, unemployment, housing cancellations and forced evictions, the neoliberal offensive has sufficiently proven its unsuitability as a socio-economic principle. The need to think about a society beyond capitalism, about a rational socio-economic concept based on reason, democracy, equality and harmony with the surrounding biosphere, is tangible.

This search is old. The slave revolts in antiquity, the religiously influenced life plans and fantasies of redemption of the Middle Ages were reactions to the early brutal practice of exploitation and oppression, and the equally brutal reactions of the ruling classes to them have since shaped history as a form of class struggle. A class struggle that at that time did not open up any real perspective for the oppressed classes. With the emergence of capitalism came the modern proletariat, the "doubly free wage workers" of whom Karl Marx in the Communist Manifesto says that they are the men who will carry the weapons that will "bring death to the bourgeoisie. Here, for the first time, the perspective opens up of being able to achieve the emancipation of humanity as a whole with the emancipation of the proletariat. Since then, the thoughts of the proletarian revolutionaries have revolved around the question of how best to carry out this task of humanity.

The historical process has constantly changed both the conditions and prerequisites under which an alternative to capitalism could be constructed and capitalism itself. Capitalism, despite its crisis nature (its first cyclical crisis took place as early as 1825), has proven to be much more stable than the ancients who had thought theorists of communism. Likewise, the idea of what an alternative could look like has been very much modified by social practice, the trial and error of the various attempts at realization. Looking at the phase of the historical enforcement of capitalist production and social relations, from the early commercial capitalism of the 12th-13th centuries in northern Italy and southern France to the French Revolution and the foundation of the German Empire in the 18th and 19th centuries, it was a long contradictory path with many setbacks and changes of form. The French bourgeoisie alone needed an entire revolutionary cycle to find a reasonably stable form. Similarly, the attempts to build a post-capitalist, rational-human society were subject to serious changes, from the attempts of the early utopian socialists, the "sky-stormers" of the Paris Commune, the modifications of the Red October, to the blatant changes of direction of the Chinese attempt at socialism. The temporarily cultivated idea of a valid socialist orthodoxy is neither theoretically justifiable by the classics nor covered by historical reality. The forms and also the prospects of success of the post-capitalist social project have always been a function of the geostrategic balance of power.

Conditions for alternatives

Historically, the labor movement and its striving for a post-capitalist, socialist society without exploitation is a recent phenomenon. The notions that were particularly prevalent in the III. International, that an ultimately valid form had been found which now had to be consistently implemented, are politically and ideologically understandable as a stabilizing moment in the ongoing siege situation and the blatant economic inferiority, but they have not insignificantly led to the moments of inertia which have made a flexible reaction to the changes that have taken place with the rise of the U.S. empire to a globally dominant power, especially in the 1970s and 1980s, impossible. In a "globalized" world, it can be considered reasonably certain that a globally relevant size of social production and population, access to strategic resources, the ability to master global advanced technology and security-relevant armaments technology must be regarded as the primary prerequisite for the chances of success of an attempt at socialism. For the project itself, the conquest and defense of political power, as well as the degree of socialization of the means of production and the management and control of production remain decisive criteria for future attempts as well.

However, with the defeat of the Red October, it has also become clear that the conquest and defence of political power and the ability to implement an alternative, socialist social project in the phase of capitalist imperialism must be understood as a historical, global project that can provide both the political-strategic unity, military strength and economic potential necessary to repel the fierce attacks of the imperialist forces. In short, the ability to impose new relations of production and society has become a global power issue. What the bourgeois revolutions have already shown on a continental scale is now being demonstrated on a global scale by the main imperial powers with their supremacy, the U.S. empire.

An old ruling class does not voluntarily resign. The struggle for the implementation of a socio-economic, social challenge is taking place in all areas: military, economic, technological, propagandistic and political-ideological-cultural. This was the case with the Red October. Since 2011, the Empire's struggle against Eurasian cooperation, especially against the PR China, has been developing in the same direction. Both struggles form an, albeit contradictory, historical unity. Without the Soviet Union and its 74 years of tenacious struggle against exploitation and imperialism, the current position of Eurasian cooperation and especially the PRC is unimaginable.

The Besieged Fortress

This power struggle with the dying old is shaping to a not inconsiderable extent the emerging new, the future, newly forming society. The Russian Civil War, the war of annihilation waged by Hitler's fascism, the "Cold War" of the U.S. empire have promoted a radical militarization of the CPSU and society in the Soviet Union, which, despite all its functionality in the immediate war situations, also became the basis for the crimes of the Stalin era and also prevented the urgently needed modification of the production and ownership relations in the 1970s and 1980s. The Soviet Union was neither on the "road to communism" as Nikita Khrushchev believed, nor was it a "developed socialist society". Red October was forced to remain largely at the level of war and siege, the dictatorship of the proletariat. As early as World War II, the Anglo-American leaders had developed the concept of a massive nuclear strike against the Soviet Union. This "doomsday" concept was driven to monstrous dimensions until the early 1960s, as the plans for "SIOP 62" (Single Integrated Operational Plan) show. SIOP 62 provided for the deployment of 3,200 thermonuclear warheads with an explosive force of 7,847 megatons against the socialist states. This threat, driven by the collective force of global imperialism, required such an enormous defense effort that it was not simultaneously possible to achieve that civil productivity potential, that "critical mass" that would have been necessary to take the lead in the development of social productive forces. This militarized socialism, and this was the goal of imperial containment, could not achieve that global hegemonic status that the capitalism of the Euro-North American expansion at times succeeded in achieving. It should be noted, however, that the Soviet Union's successful response to the U.S. empire's nuclear war plans prevented not only war but, as we now know, the annihilation of all humanity in the nuclear winter.

The socialism attempt of the III. International went under. It was a besieged fortress in a hostile, materially clearly superior environment. This was clear to the Bolsheviks as early as the early 1920s, when postwar revolutions failed to materialize in Western Europe. The appeal of Red October increased markedly in the Great Depression of the 1930s and with the Red Army's victory over German fascism, but the Soviet Union, twice destroyed, struggling for bare survival in the face of the nuclear threat, was not a real alternative for the "Western" working class of the New Deal era. The anti-Communist forces in the "Western" labor movement, could and can maintain their dominance until today. The leadership in the development of productive forces in society as a whole remained with the capitalist states. Even the successes of the socialist and communist forces in the "Third World" did not change this basic strategic structure. The new colonially independent nation-states were generally in great need of finance and support, and with few exceptions were hardly in a position to make a major, independent industrial and technological contribution to the communist/socialist world movement. Even in the best of times, in the mid-1970s, the combined GDP of the U.S. Empire and Western Europe was about four times that of all Warsaw Pact states. Since an enormous part of the economic effort had to be spent on defense, the standard of living remained low. For all its strategic successes, the international balance of power forced Red October to remain at a level just above that of the struggle for survival, in the dictatorship of the proletariat. Despite all the achievements in military technology, it could not develop into the champion of productive force development.

The Internal Decay of the "Only World Power”

But the victory over the Red October did not leave the empire, "Western" capitalism as a whole, untouched. The neoliberal counter-reformation and imperial over-expansion have over-indebted the "Western" societies, emaciated them in terms of infrastructure and left them socially disparate. In the (Corona) crisis, the empire offers the dystopian image of a society disintegrating in street battles, rampant poverty, bankruptcies and unemployment on the one hand, and obscene wealth on the other. Instead of the New Deal/Bretton Woods era's mood of reconstruction as the Soviet Union was, the Chinese Communists are now confronted with the progressive neoliberal decay. In the wars of the Global War on Terror and in the Great Crises of the 21st century, the empire has long since lost its hegemonic position. Its economic weakness, its industrial sell-out, has necessitated a policy of hard protectionism, power and gunboat politics, robbery, open extortion and unchecked currency inflation. Corruption has long since reached even the hypertrophied, completely overpriced military machine. Washington has degenerated into a kind of global mafia headquarters.

This policy of drawn guns, of permanent wars on credit cards against a background of plunder by a highly parasitic financial economy, is not sustainable. The empire's ability to resist social change noticeably diminishes in the phase of decay despite the militant appearance. The expansion of the MAGA ("Make America Great Again") concept to include its own allies has caused massive uncertainty, especially among the important European vassals. Like internal cohesion, international support for the empire is eroding. In many areas, the imperial media and propaganda apparatus has moved on to an unrestrained whitewashing of its own situation and an absurd demonization and denigration of the opposing politicians and state leaders, who have become the ultimate figures of horror. Deviating expressions of opinion are increasingly censored. In addition, with the demise of Red October, the reformist, hard-line anti-Communist part of the labor movement has also gone down. Reformism as a whole has sunk into insignificance and with the withdrawal of socio-economic integration and social chauvinism in the neoliberal phase, the organized support of imperialism in the labor movement has largely disappeared. With the elimination of all criticism, even the Ancien regime's last opportunities for internal reform and renewal are lost.

From anti-Soviet ally to boomtown of globalization

The leadership of the People's Republic followed the Soviet pattern in essence only as long as it was necessary to achieve and stabilize power. Serious differences of opinion were already emerging in the late 1950s. When the voluntaristic concepts of the "Great Leap" and the "Cultural Revolution" failed, the leadership around Mao also made a strategic shift in the early 1970s, away from the international solidarity of the Third Reich. International, to a de facto alliance with the US Empire. This cronyism continued beyond the historic defeat of the Red October. After 1991, however, the U.S. Empire no longer motivated by anti-Communist/anti-Soviet sentiment, but now by neoliberal/globalization-oriented considerations, in order to secure the "share-holder value" or better, maximum profit. This phase began a few years after Mao's reunification with Deng Xiaoping's "Four Modernizations" in 1978. This phase of Chinese construction through finance-capital-driven cooperation continued until 2011, when the empire's strategic reorientation towards the Pacific Century and the "Great Power Competition" officially took place.

After the victory over the Soviet Union, empire theorists believed themselves to be at the "end of history". They planned for a "New American Century" (PNAC). Such a challenge to the "One World Power" was not to be repeated. China was considered to be of little importance; the Chinese leadership had accepted the empire's world power position and was ready to cooperate. It had opened the country to "Western" financial capital, which was looking for maximum profit. On the long run, the Western strategists were convinced that the economic base, the Western and Chinese monopoly capital would "revolutionize" the socialist superstructure. It was this imperial hubris that gave China, as a boomtown of globalization, the chance for a true Chinese industrial revolution. It was an extremely contradictory process that simultaneously required a significant portion of the Chinese economy to be made available for capitalist exploitation and profit-making. The CCP has paid enormous social and political costs for this rise, and the party has not only accepted large amounts of foreign capital, but has also accepted the accumulation of billions of dollars of Chinese private capital, transforming a society of the poor but equal into a society of social inequality.

It is in a sense the distance or even opposition to the Soviet Union and the de facto "partnership" with the U.S. empire that has enabled China to push ahead with its industrial development largely unmolested. The historical dialectic, however, has (re)transformed this at times anti-Soviet cronyism into an existential competitive relationship in which the survival of the U.S. Supremacy is at stake. Since Chiang Kai-shek had seized the leadership of the Guomindang, the CCP was the only force that could bring about the national liberation of China, the end of the "century of humiliation" after the opium wars. The restoration of national sovereignty, the millennia-old greatness of China against imperial oppression by Japan and the "West," was closely linked to the proletarian revolution from the outset. With the imperial "Great Power Competition," this situation has in a sense returned in a new quality.

New Economic Policy 4.0

However, China has changed dramatically in the last 30 years. Its willingness to experiment, to trail and error, which in the early years had produced the catastrophes of the "Great Leap" and the Cultural Revolution, has catapulted the backward agricultural country into modernity through a kind of "New Economic Policy 4.0". China has lifted 700 million people out of poverty and is capable of planning and implementing a gigantic infrastructure project spanning four continents, the Belt and Road Initiative (BRI).

Since 1978, the People's Republic has developed into an industrial hotspot, the industrial workbench of the world, which clearly outshines US industry in important sectors. Even before the corona eruption, the drift of the industrial centers away from North America and Europe to the East Asian states had taken on historic dimensions. Chinese technological development, as the examples of Huawei, ZTE and ByteDance (TikTok) show, has at least caught up with that of the US empire in key areas. In 2018, China has overtaken the USA as the largest trading nation. China alone produces as many industrial products as the USA, Germany, France, Italy and Great Britain combined. Together with Japan, South Korea and India, the Asian powerhouse produces 1.5 times as much as the "Western" main states. As a result of the (Corona) crisis, this ratio will continue to change in favor of East Asia, according to all that can be seen so far. The "West", the European-North American dominance, no longer stands for the development of the productive forces in society as a whole. It may only be a matter of time before the industrial leadership of East Asia translates into corresponding political, economic and military power development.

China, unlike the Soviet Union, has managed to achieve industrial equality with the now decaying, neoliberally deindustrialized and over-indebted empire. It has been able to accumulate the technology and the "critical mass" that will make it difficult for the empire to successfully implement a containment strategy without harming itself the most.

This is particularly evident in the case of Huawei. Despite the massive US sanctions, the tech group has managed to produce a smartphone without US components on a par with those of the US giants, and leads in 5G technology by a clear margin over its "Western" competitors. The blockade strategy ruthlessly enforced by the empire has the unpleasant effect for the participating countries of falling behind even technologically. Here, in a field of high technology, the sanction strategy turns against the sanctioners themselves. The de-coupling effect triggered by this strategy secures an exclusive market in the "West" for US tech companies in a protectionist manner, but at the same time increasingly excludes them from potentially larger Asian markets. This protectionism is a significant sign of weakness. It will not promote the competitiveness of the empire. On the contrary.

Socialism or recapitalization?

It is no secret that China's success is based in large part on the admission of capitalist enterprises and investment by foreign, predominantly U.S., finance capital. The opening of the country to Western capital, which came about after extensive consultations with the financial institutions of the "West", IMF and World Bank, after the "Four Modernizations" after 1978, has been the subject of intense discussion and criticism in "orthodox" socialist and communist circles. The attractiveness of the People's Republic for petty-bourgeois left-wing radical currents in the West and in the "Third World" declined noticeably. After all, millions of Chinese people were gradually subjected on a grand scale to exploitation by "Western" financial capital. Social inequality in the People's Republic grew rapidly. The Gini coefficient rose to over 0.7, roughly comparable to capitalist France (with Gini 0, there is complete equality; with Gini 1, one person owns everything). The first Chinese dollar billionaires appeared. In 1990, the Shanghai Stock Exchange, a symbol of gambler capitalism, opened in China as well. This was an almost dramatic shift to the right after the years of the ultra-left politics of the "Great Leap" and the "Cultural Revolution". The Chinese leadership now seemed to follow the political rapprochement with Washington with the economic rapprochement with Wall Street. China had already caused a rapid loss of sympathy with the war against the Socialist Republic of Vietnam in 1979, just four years after the U.S. aggression. Especially when one considers the reason for the war: Vietnam had put an end to the murderous regime of the "Khmer Rouge" in Cambodia. The "Khmer Rouge" was supported both materially and diplomatically by China and the United States alike until the end of the 1990s, which of course did not prevent the "Western" propaganda machine from mourning the victims of "Stone Age Communism" with tears.

Then, when the Soviet Union collapsed in 1991, the hopes of communists and leftists that the People's Republic could carry the torch of revolution were low. The historical process had obviously gone into reverse. This also seemed to apply to China. The next 20 years indicated that this assessment would be confirmed. China seemed firmly in the grip of international financial capital and its own privatization profiteers, who had accumulated fabulous wealth overnight. However, the crises of 2000 and 2007 had revealed the limits of speculation-driven globalization. The balance shifted. China became the engine of the world economy during the crisis. It rose from the cheap workbench of the world to the industrial and social challenger of empire and "Western" capitalism. The country achieved ever higher export surpluses vis-à-vis the USA and in 2014 held almost 4 trillion US dollars. US dollar as currency reserves. The People's Republic became the empire's biggest creditor. US industry was no longer competitive in many areas.

This created an immediate need for action. The Obama administration also officially turned the tide in 2011. China, like Russia and Iran before it, was transformed from a trading partner and investment location into a strategic opponent. The "Global War on Terror" for supremacy in the Middle East was downgraded on the list of priorities in favor of the "Great Power Competition". For the People's Republic the necessity arose to react to this changed situation. With Xi Jinping, a man who stood and still stands for a resolute response, for strong state structures, for leadership by the party and for a renaissance of the socialist perspective, took the lead in 2012. Xi's name is closely linked to the strategic Eurasian New Silk Road (BRI) development and integration program.

Prospects of success in the "Cold War 2.0"

The renaissance of socialist ideas is no coincidence. The CCP sees itself as the completion of a kind of national rebirth after the "century of humiliation" that began with defeat in the opium wars of 1842. The solution of this national task is closely linked to the socialist orientation of the CCP. Under Chiang Kai-shek, the bourgeois-nationalist Guomindang had degenerated into an instrument of imperial power interests. It offered no prospects for the vast majority of the Chinese, especially for the rural population. In order to successfully counter this strategic confrontation, the "Cold War 2.0," the People's Republic needs a renewal of its social alliances. As things stand, this can only happen on the basis of overcoming poverty and renewing and consolidating the socialist promise of the future. Only the prospect of the socialist perspective and national rebirth is a sufficiently strong "cement" to enable society to resist such a challenge as the full confrontation of the empire, the Cold War 2.0, as it is currently being unleashed by Washington. This had already been demonstrated in the Soviet Union, when Soviet society was able to survive the civil war, the invasions of the 15 Powers and the fascist war of annihilation with a bright socialist future in mind.

Success in this struggle is by no means a foregone conclusion. The fate of the Soviet Union has shown this too. China is even farther away from a "developed socialist society" than the Soviet Union was in the 1970s. Yet its chances are incomparably better. Its former anti-Sovietism and its ambivalent approach to the empire had, one might perhaps say behind the scenes, made possible a dynamic development of the productive forces, which can (but need not) now be the basis for a new attempt at socialist development. China leads the "Fortune Global 500", the list of the 500 companies with the highest turnover worldwide, published by the US business magazine "Fortune", with 124 companies ahead of the US, 121 companies. The 2nd, 3rd and 4th places, for example, are held by Chinese (state-owned) companies. Around 85 percent of these Chinese companies, which are very successful on an international scale, especially the largest ones, are state-owned enterprises.

US Secretary of State Michael Pompeo took up this development in his "Cold War speech" in front of the Nixon Library and criticized that Nixon's policy of rapprochement had ultimately failed. So China had not become a capitalist grand vassal of the empire after all, but had become a serious threat to the capitalist world. If the "free world" did not change its relationship with China, "communist China will change us.

In the long run, the success of a socialist perspective depends not only on its ability to appear as the engine of social progress, the driving force of the productive forces of society as a whole. As Marx describes in the famous "Preface to the Critique of Political Economy," it is a matter of a development of the productive forces specific to socialism that is incompatible, or better, increasingly incompatible with capitalism. "At a certain stage of their development, the material productive forces of society come into conflict with the existing relations of production or, which is only a legal term for it, with the relations of ownership within which they had previously moved. From developmental forms of the productive forces, these relations change into the fetters of the same. An epoch of social revolution then enters. With the change in the economic basis, the whole enormous superstructure is rolled over more slowly or more rapidly.

This development begins to emerge more and more clearly with the stormy development of technological progress, artificial intelligence, self-control and self-optimization of complex systems. The consistent application of this technological progress in production will pose such a challenge to socio-economic conditions that it is difficult to imagine how this can be established in the long term in the already neoliberal structures of the capitalist leading powers. The neoliberal counter-reformation has reached its limits in its Great Crisis since the turn of the century. The dystopia of the internally torn, over-indebted and deindustrialized capitalism of the "West" can develop less and less counterrevolutionary radiance to the peoples of Eurasia. And not only there. The defeats of the regime change operations in Syria, Venezuela, Hong Kong and Belarus show that things have changed fundamentally. If the Pentagon does not finally agree to a (suicidal) "nuclear option", the chances of a renaissance of socialism by the People's Republic of China are not so bad.

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Basic information on the rule of law

Extract from the Marxist Papers 01_2015: "World Order in Transition"

by Hermann Klenner

[This article published on 1/8/2015 is translated from the German on the Internet, https://www.linksnet.de/artikel/32182.]

"Freedom" and "democracy", "constitutional state" (and more recently, once again, "unjust state") are among the most commonly used political vocabulary. Not only do different opinions clash - conflicting interests clash. Even if confessions are not refuted by findings, enlightenment is required. What else is science for? For this reason, the following will list fewer cases of injustice in a constitutional state or of law in an unjust state, but will instead, for the sake of the present, primarily discuss fundamental questions with a look into the past.

1

The word "constitutional state" first appears in the German language around 1800. The idea of the constitutional state, on the other hand, is ancient, and the concept of the constitutional state has been controversial from the beginning to the present day, and necessarily so. But to say it from the outset: anyone who, as usual, thinks that a state under the rule of law is a state in which things are done justly, and a state without rights is a state in which things are done unjustly, is at least naive, and his hopes, like his fears, are at any rate empty madness.

Let us begin with the word "constitutional state. In probably no other language is there such a word combination between law and state, and as with other legal terms, it is only circumstantially and inaccurately translatable into other languages. "Rule of law", for example, is declared, with reference to Albert Venn Dicey, to be "all men are equal before the law, whether they are officials or not (except the Queen)"; [2] it does not correspond, at least not with this definition, to our understanding of the rule of law. For the first time, our term was used in a review published in 1798 and referred neither to the actual nor to the target state of an actually existing state, but characterized a theory of contradiction and its adepts, namely the "critical or the school of the law-and-state teachers", which was opposed to the mere experience of experiential state practice. 3] This meant Immanuel Kant and his followers - Wilhelm von Humboldt, for example, with his view of the rational state as a "legal institution". 4] Kant, in whose Critique of Practical Reason, as in his other works, the word "constitutional state" does not appear, but in his "Metaphysical Initial Foundations of the Doctrine of Law" of 1797 he defined the state-not as it is, but as it should be-from the point of view of law, and the law from the point of view of an allegedly a priori law as the will of the citizens that unites the common interest of all. To imagine the State as a commonwealth and the right as an order of liberty of equal rights, and then to assert that "reason itself had so willed it," could, however, if one considers the circumstances surrounding Königsberg at that time, be accused of pure illusion; if one then adds that its author considered the workers and the "women's rooms" not to be citizens, the negative judgment of Kant's concept of the constitutional state seems inevitable. Room. Those who at that time in Europe considered statehood and legality justifiable neither by the monarchical authorities nor by rewriting the Bible, but only by the earthly will of equals and equal-rationals, were subject to state censorship, for they illegitimated traditional feudalism and absolutism and at the same time legitimized a future democratism. It is no wonder that Kant remained faithful to the great revolution of the French, with, as he also made public in 1798, a "participation according to desire that borders on enthusiasm".

Of such enlightenment thinking quite the opposite meaning was the use of the word "constitutional state" ten years later. It can be found in a lecture given in Dresden on December 13, 1808, in which Ducal Court Councilor Adam Müller, a descendant of a Prussian family of civil servants and pastors, propagated an "organic constitutional state", in whose "totality" the entire inheritance of past times was included, thus mystically transfiguring the traditional feudal state and declaring it to be capable of preservation rather than in need of change. 5] If Kant had understood his doctrine of the rule of law as a counter-draft to the reality of the state, Müller, who had converted to Catholicism, defended with his "organic" conception of the rule of law "the beautiful balance of rule and obedience," the nobility and landed property, and the conformity of the legal and religious communities. In those years, it happened that an anti-feudal teacher of the rule of law was condemned for insulting the King's majesty and publicly apologized before the image of the King, or - also in Bavaria - Protestant soldiers were forced by a decree of the monarch to attend Catholic services, including kneeling before the Holy of Holies for Catholics.



Neither the Kantian nor the Mullerian concept of the constitutional state made a career in the German nineteenth century. Kant's "revolution of the way of thinking-so his self-characterization in the preface to the second edition of his Critique of Pure Reason-had not turned into a revolution of the way of acting; but even the highly conservative version of the rule of law did not withstand the demands of a bourgeoisie creeping into power in Germany. In the course of the 19th century, the rule-of-law concept of a third way proved to be successful. Liberalism at that time promoted the "right middle between two opposing extremes," between popular sovereignty and sovereignty of the ruler, between civil liberty and state absolutism, between democracy and aristocracy. Instead of oppression on the one hand and upheaval on the other, the liberals focused on transformation - a word that has recently been making a big splash again! - on a transformation of the former police state (including its absolutist welfare state variant) into a state in which the relations between the rulers and the ruled are not regulated by violence, habit, morality and religion, but by law and order. Instead of arbitrary rule, there should be legally regulated rule over citizens who are equal before the law, rules of jurisdiction between the various state organs should be standardized, and a prohibition of retroactivity in criminal law should apply (nulla poena sine lege). A "state of violence" would then have become a "state under the rule of law", so the Liberals claim. 6] Commentary by Marx: "They only forget that the right to the fist is also a right, and that the right of the strongest also lives on in their 'constitutional state'". [7]

The lost revolution of 1848 meant that the view that prevailed thereafter, while conceptually maintaining the state's self-binding nature to its law, was "Christianized: The constitutional state determined and secured "the paths and limits of its effectiveness like the free sphere of its citizens in the manner of the law," but as a "moral community" whose order is binding for all (! ) living conditions must have a moral idea about the principle; obedience to the subject should not be based merely on a legal duty, but also on reverence and loyalty to the prince; the king is not an official of the people, but an official of God over the people; the authority is the guardian of "holy orders" and the right is the "order of life of the people for the preservation of God's world order" - according to the professor of law at Berlin's university, the member of the Prussian High Church Council and eloquent leader of the high conservatives in the Prussian manor house, Friedrich Julius Stahl, to whom, by the way, the formula also refers: "Authority, not majority! "goes back to. [8]

To round off the historical evidence of the non-existence of a uniform concept of the rule of law: The word "constitutional state" does not appear in the many constitutional texts in 19th century Germany, neither in this nor in that meaning. However, there are, in various ways, regulations relevant to the rule of law, but they cannot be condensed into a self-contained concept of the rule of law. What remains, however, is the realization that these regulations relevant to the rule of law are, in their entirety, the rule of law in the form of the legality of the authoritarian state appropriate to the eventually victorious capitalism, which guaranteed the economic power and political violence, but also allowed a halfway legal development of the labor movement and the emergence of the women's movement. It had established national unity as a result of wars on the grave of freedom. A 1975 Marx sentence was a "military despotism dressed up with parliamentary forms, mixed with feudal additions and at the same time already influenced by the bourgeoisie, bureaucratically timbered, police-guarded" (MEW 19/29). In it, the rule of the ruling class pretended to be the rule of abstract laws and, under the semblance of non-violence, administered the monopoly on the use of force.

It was the Social Democracy of the time that revealed the relationship between class rule and the rule of law in the German Reich, as can be read in Bebel, Bernstein, Ehrlich, Kautsky, Liebknecht, Mehring, and others. 9] And during the World War begun by the Empire, Rosa Luxemburg unveiled "bourgeois society as it is: defiled, dishonored, wading in blood, dripping with dirt; not when, licked and modest, it mimes culture, philosophy and ethics, order, peace, and the rule of law. [10]

2

Completely unlike today, there was no particular need for concepts of the rule of law or accusations of the unjust state in the everyday political business of the Weimar Republic or in the legal discussions of the time. In the six-volume handbook of jurisprudence (Berlin 1926/29), there is not even a lemma on the rule of law; nor is there one in the eight-volume handbook of political science (Jena 1925/28). While Hermann Heller and Gustav Radbruch had at least tried to position thoughts of the rule of law against anti-democratic tendencies, the two internationally important professors of law, Hans Kelsen and Carl Schmitt, who otherwise tended to think in the opposite direction (one "left", the other "right"), agreed on this matter: the word "constitutional state" was a pleonasm, since every state, whether feudal or civil, national or social, was a constitutional state. [11]

The Weimar Constitution of 1919, like its predecessor of 1871, did not know the word "constitutional state. The guarantee of private property, even in the means of production (Article 153), guaranteed the traditional power/powerlessness structure of society as a whole; but it was also secured by more than mere appearance of regulations relevant to the rule of law, such as: universal suffrage, equality before the law, individual basic rights, independence of the courts, and prohibition of retroactive effect of criminal law. It was not the ownership structure, but rather the progressive regulations mentioned above that were ultimately undermined by the President of the Reich, who was supported by leading representatives from business and industry, on the basis of Articles 25 and 48 of the Constitution, i.e., legally, by passing two February decrees of 1933 (according to their preamble: "in defense against Communist acts of violence that endangered the state"), which replaced most of the provisions contained in Articles 114 ff. and decreed that the police impose "protective custody" of any person without judicial review or time limit; this was later carried out in concentration camps. After the illegal annulment of the 81 KPD mandates elected on March 5, 1933, the Reichstag then passed the "Law to Eliminate the Plight of the People and the Reich" on March 24, 1933, with the votes of the NSDAP, the German National People's Party, the Center, the German State Party, and the Bavarian People's Party, but against the votes of the SPD deputies. In his government declaration of the same day, Hitler legitimized the seizure of power with, on the one hand, "Marxist heresies" and "communist chaos" and, on the other hand, with "real national community..., moral restoration of our national body..., the unshakable foundations of moral life..., blood and race..., ideological unity" lying in Christianity, as well as with "barbaric ruthlessness against treason. [12]

Thus, the way into the crimes of the fascist German Reich was authorized, which ended with 11 million murdered in the concentration and extermination camps as well as the 55 million dead of the Second World War. The course of this way let also many legal regulations become recognizable, whose inhuman content was dressed up Nazi-ideologically by the racist phrase: "Right is what Aryan people consider right". Not only were the state's means of violence handled de facto according to its own discretion, but arbitrariness was also legalized: according to § 2 of the 1935 StGB (German Criminal Code), the courts, in disregard of the principle of legality (nulla poena sine lege - no punishment without law) that had been in force up to that time, were also to condemn those who "deserved punishment according to healthy popular feeling. The Nazi regime, which from the outset was based on a system of terror within and between states, was itself criminal, along with its means and methods.

But while, as mentioned, the 1927 Handbook of Jurisprudence considered a lemma of the rule of law to be superfluous, the 1937 supplementary volume VIII of this dictionary, entitled: Die Rechtsentwicklung der Jahre 1933 bis 1935/36 (The Development of Law in the Years 1933 to 1935/36), offers on pages 567-577 a lemma of the rule of law written by State Secretary Roland Freisler, later President of the "People's Court". Among other things it says: "The National Socialist state raises the idea of the rule of law from a formal to a material idea.... This material state under the rule of law requires no formal guarantee of freedom; for it possesses the much stronger material guarantee of freedom of the unity of the total fundamental view". With this concept of the rule of law, the idea of the state and the idea of the law flow from the same "folkish" source; he was not content with a formal one; he wanted a material goal, that of "material justice," which in the Third Reich was unbreakable and would triumph over "Shylock justice. [13]

The reduction of the fascist concept of the rule of law to an idealistic "basic view" including the trivialization of all formal moments of the rule of law raises the problem, which goes far beyond the Nazi crimes and their facade of the rule of law, of whether the legal obligation of the state belongs to its structural or its substance principles, that is, whether it is to be understood in a formal or also in a substantive sense, and what consequences a material understanding of the rule of law has with its linking of the law to this or that idea of justice? We will have to come back to this.

3

Nor does the word "constitutional state" refer to the Basic Law, which was deliberated by a parliamentary council in Bonn and adopted by a majority (with the two KPD members voting against it) and, after its approval by the Allied military governors of the three Western occupation zones and its adoption by the state parliaments (with the exception of Bavaria) on May 23, 1949, has since been modified and supplemented by more than fifty amending laws and finally, since October 3, 1990, has been valid for all of Germany. 23 requires Germany's participation in the development of the European Union, which (among other things) "is bound by principles of the rule of law"; and according to Art. 28, the constitutional order in the German Länder must "comply with the principles of the social constitutional state".

Nowhere, however, does the Basic Law state what these constitutional principles are. The Federal Constitutional Court, which is responsible for the interpretation of the Basic Law - in the specific case even with binding effect - as well as the "competent" legal scholars see the principle of the rule of law primarily in the GG-Art. 20 III. It reads: "Legislation is bound to the constitutional order; executive power and jurisdiction are bound by law and justice". The binding of the legislature to the state constitution and of the executive and judiciary to the law has been one of the most reliable insights, at the latest since Hobbes, Pufendorf, Locke, Montesquieu, Rousseau and Kant, as a coagulated experience of many centuries. The experiences mentioned in the GG-Articles 16, 23 and 28 and in the GG-Art. 20 III and transformed into binding law are thus much older than the rule-of-law vocabulary of the German language. The obligation of the legislative, executive, and judicial state power to act in accordance with the rule of law, which results from the further development of legal requirements into legal norms, is part of the hard core of the Basic Law, because according to GG Article 79 III, a restriction or even cancellation of the principle of the rule of law is inadmissible even if all members of the Bundestag unanimously vote in favor of it, and would therefore be illegal. The same would apply according to this same GG article 79 for a restriction or even abolition of the principle of the rule of law, which is in the GG-Art. 1, concerning human dignity, human rights and fundamental rights. This commonality of the irrevocability of human rights and rule of law principles has contributed to mixing them up also in terms of content, which has not served their own clarity.

In its decisions, the Federal Constitutional Court has called the principle of the rule of law a "guiding principle" (BVerfGE (22/426). This is all the truer, since by the so-called legal way guarantee of the GG-Art. 19 and 34, legal recourse is open to anyone whose rights, including civil rights, are violated by public authority. However: since the right to work is counted as a human and civil right by the General Assembly of the United Nations in Article 23 of its "Universal Declaration of Human Rights" of 1948 and in Article 6 of the "International Covenant on Economic, Social and Cultural Rights" of 1966 (of which the Federal Republic of Germany has been a member since 1973), but has no legal rank in the Federal Republic of Germany, it is not enforceable. The disparity between the rule of law and the welfare state, tangible: the coexistence of freedom of opinion and travel on the one hand and unemployment and homelessness on the other, is one of the fundamental evils of the Federal Republic's legal system, which identifies the Federal Republic as capitalist.

The coexistence of freedom of opinion and travel on the one hand and unemployment and homelessness on the other hand is one of the basic evils of the Federal Republic's legal system, which identifies it as capitalist. The integration of the intellectual, personal and structural legacy of the Nazi Reich into the Federal Republic's postwar constitutional state has also taken place under the protection of the guiding principle of the rule of law: Of the judges working in the German justice system after 1949, about 80 percent were already active in the Nazi German judicial service, and about 85 percent of them were members of the NSDAP. The almost complete personal identity of the university lecturers at the law faculties before and after 1949 had its foreseeable and probably also intended consequences in the suppression of the legal co-sponsorship of the terrorist dictatorship. 15] The ban on the KPD and the criminalization of Communists were carried out in "constitutional forms," even if they were unlawful. [16]

The rule of law is a structural principle, not a substance principle of the Federal Republic's state and legal system. It guarantees legal security and says nothing about legal correctness. To avoid misunderstanding: The rule of law principle does not change the fundamental fact that law and justice - like the constitution itself! - is the product of struggles of interests, in many areas of class struggles, in which the bearers of social power tend to assert themselves. The holders of power and violence are, if not the rulers, then at least the holders of rights. The juridification and judicialization of conflicts of interest, especially of antagonisms of interest, gives the illusion to the unenlightened that bourgeois society is a community whose right is based on a depoliticized consensus, or at least one that is capable of being depoliticized. Apparently, in the state as a community based on the rule of law, as in the much-called community of states, it is not people who rule over people, but rather the law rules over people and states. As if "rule of law" is not first of all "rule by law"! (To weave in something historical: In the Massachusetts Constitution of 1780, Article 30 states: "The rules of law pursue the goal that in this society [mind you, a bourgeois society including slavery!] laws prevail and not people - "it may be a government of laws and not of men"). It is the exclusively legitimized use of force to which the liberal-bourgeois constitutional state laid claim from the beginning, and which even gave it the appearance of non-violence, as if the law of the state and its violence were inherently opposites. Power without right can be injustice; right without power is in any case impotence. By suggesting rule with the help of law as rule of law (with which "justice" is all too easily associated), the principle of the rule of law favors the self-delusion that law contains ideas without interests, reason unclouded by desires.

But does the existence of such illusions, and in view of the inequality of people under the law, justify a rejection of the equality of citizens before the law that is inherent in every rule of law? Even if a state based on the rule of law is not an alternative to the state of power (and by pretending to be something like that, it deserves to be demythologized), it is still that subclass of the states of power that at any rate offers better chances for a democratization of state and society than states to which principles of the rule of law are alien. Even though the privatized ownership of production, distribution and media manipulation means enables the structural powers in contemporary West German society to assert themselves unchallenged under the rule of law, this is by no means a reason to reject the constitutionally binding nature of Parliament and the legally binding nature of government and the courts. The scope for a legal development from below would be reduced if the Basic Law were no longer binding on the legislative, executive, and judicial branches, or if citizens whose rights were violated were no longer able to take legal action to claim damages. Or if the prohibition of retroactive effect of criminal laws would no longer be considered an absolute right. The rule of law certainly does not abolish the class character of law, but it does make it easier to disclose it and to oppose its concrete content.

The Federal Constitutional Court has at least certified the principle of the rule of law's proximity to the idea of justice (BVerfGE 20/331; 37/65; 52/144; 70/308), from which the temporary Federal Minister of the Interior and long-time president of the Federal Constitutional Court (CDU) concluded that "the rule of law also means justice," especially since the democratic principle gives rise to the task and authority of the people's representatives "to seek the appropriate answer to the question of justice in each case under the changing circumstances. [17] As if parliamentarians mobilized interests for ideas of justice, and not justice cloaks for interests. The constitutional state has even been suddenly described as a state "in which law and justice prevail", and even more reduced, it has been defined simply as a "state of justice". 18] But if the principle of the rule of law, instead of being a structural principle, is at least also given out as a substance principle, and a material content is added to its formal content, then legal theory threatens to become legal ideology - ideology in the Marxian sense as false consciousness. A "material" understanding of the rule of law can become the gateway to almost any values; but above all it serves to use their prevailing versions as subordination enhancers. By binding positive law back to over-positive law, it is likely to undermine the constitutional limitation of governmental and judicial power as well as the constitutional legal status of the citizen-and thus the core ideas of the concept of the rule of law. One of the fundamental demands of the European Enlightenment was the return of all state sovereign acts to laws of this world (and not to a natural law of the afterlife). If former "civil rights activists" mock the fact that they wanted justice, but now only got a constitutional state, they could minimize their disappointments by learning to understand them as the product of their own deceptions. Values, no matter by whom and for how long, and even more so when they are condensed into an "objective order of values" (BVerfGE 39/67), are not suitable for the dignity of philosophical rationality and legal obligation. Authority by divine grace or by means of seen values is outside the realm of constitutional legality.

4

While the "Communique on the formation of the bloc of anti-fascist democratic parties" in the Soviet-occupied zone of Germany of 14 July 1945 mentions as the third of five main tasks the "establishment of full legal security on the basis of a democratic constitutional state", [19] neither the state constitutions of Thuringia, Saxony-Anhalt, Mecklenburg and Brandenburg adopted in 1946/47 nor the GDR constitutions of 1949 and 1968/74 contain the word "constitutional state". In the extensive legal lexicon published by Staatsverlag der DDR in 1988, there is no keyword dealing with the rule of law.

This failure to mention "constitutional state" is conceptually conditioned. The Bolshevik legal theorist Yevgeny B. Paschukanis (1891-1937), in his internationally recognized masterpiece General Legal Doctrine and Marxism of 1924, called the rule of law a "mirage" convenient to the bourgeoisie. [20] Karl Polak (1905-1963), who, contrary to Arthur Baumgarten, Max Fechner and Karl Schultes, formed and represented the prevailing opinion in the GDR, stated this in an article originally published in the July issue of Einheit in 1946: Since the concept of the constitutional state could easily be used to defame political opponents by turning their policies into law-breaking ones and wrongly stemming the outcome, it was dangerous in political propaganda, but since it could be claimed by any historical formation - there was an ancient, a feudal, a bourgeois, a socialist, even a National Socialist constitutional state - it was "completely devoid of content and did not stand up to any scientific analysis.” [21]

Even though in the course of development, for example at the SED's VI and VII party congresses in 1963 and 1967 and then again at the 6th plenary of the SED Central Committee in 1988, the GDR was officially referred to as a "socialist constitutional state", [22] no adequate socialist theory of the rule of law was developed and no legal practice was implemented in accordance with it. Only what had been achieved or the anti-fascist basic content of the new order up to that point, the abolition of exploitative conditions and the peace policy practiced, without wanting and enforcing fundamental changes, could be described as socialist rule of law. Above all, these changes should have distinguished themselves from the prevailing view that law can only ever be a means of power, but never its measure. To establish the class character of even a socialist right does not, however, contradict the insight that this right must have a relative autonomy as a result of its normative character, for without subjective rights there is no objective right. Without a relative autonomy of law and jurisdiction, there can be no rule of law, neither a normatively limited power of government nor a freedom of citizens secured by legal norms. From a Marxist point of view, it is both theoretically wrong and counterproductive in practice to understand socialist legality merely as citizens' compliance with orders from authorities, instead of also and initially as a claim by citizens who are only just beginning to constitute state power to merely legally regulated opportunities for state organs to intervene in their sphere of freedom. When the party's leadership role, which is laid down in the constitution, intervenes in legally regulated relations in a changing manner, it is an expression of extra-legal, i.e., illegal, dominance. A negative example: Until 1964, there were politburo decisions on the death penalties to be imposed by GDR courts (some of which were in favor of the perpetrator to be sentenced, others against). [23]

The end of the GDR was certainly not caused by its legal system. Even if (in contrast to the Basic Law of the FRG) the constitution of the GDR had passed the test of a referendum, and in many areas the legal security here - the security of life anyway - was greater than that experienced in capitalist states, it cannot be overlooked that there were favorable conditions for the demise of the early socialist social system in the legal system of the GDR. These include the undervaluation of the subjective, if necessary judicially enforceable rights of the citizen in constitutional and administrative law, as well as the imbalance in theory and practice between social civil rights on the one hand and political civil rights on the other. The repeatedly practiced reduction of socialist democracy to an inclusion of the population in the executive party and state organs' leadership decisions already made elsewhere (although democracy can be nothing more than the identity of the ruler and ruled) has certainly contributed to the fact that many citizens have increasingly been unable to identify with the state. For those who think about it, this should be clear: Not because the legal system of the GDR was not bourgeois-capitalist, but because it was not democratic-socialist enough, it is partly responsible for the failure of the first attempt on German soil to develop a social order alternative to real capitalism.

These self-critical remarks - in every respect, including personal ones - are not intended to work towards the malicious primitivisms of those who, when the GDR is mentioned, swing the cudgel of the unjust state. Those, in alphabetical order: Gauck, Herzog, Jahn, Knabe and Merkel, e tutti quanti, use this defamatory vocabulary first used by one of the pioneers of political Catholicism on February 12, 1853, in the Second Chamber of the Prussian Parliament. 24] Words such as "unjust state" are not even found in today's political dictionaries, not to mention legal dictionaries. But: not because the GDR was not democratic enough, but because it was too much socialist, the victors of the Cold War tried to cut off its honor. But the honor of those who, as the beneficiaries of capitalism, have committed themselves to its finality and therefore pass it off as having no alternative - it is not our honor!

To say that too: The reprisals of those who rule today do not legitimize the failures of their predecessors; it is even more difficult to recognize the antagonisms between wealth and poverty, power and powerlessness, war and peace, which are reflected in today's legal order, if one does not take note of the causes and favorable conditions for the failure of the GDR, for example, for fear of being mistaken for someone who no longer dares to recognize bourgeois society as a structural and developmental form of a brutalizing real capitalism, because he had already become its player.

5

The normative embodiment of the "principles of the rule of law" mentioned several times in the Basic Law by the "principles of the GG-Art. 20 prescribed binding of the legislature to the constitutional order, of the executive and judicial powers to law and justice, should not be understood as an assertion that the FRG is a constitutional state. But: that it should be. It is not the claim to truth of a sociological insight, but the legally binding demand on the organs of the state to behave according to the rule of law. It is the permanent contradiction between constitutional law and constitutional reality, the difference between being and should be, between statement and norm, that comes into play here and whose oversight leads to misjudgments and wrong actions.

There are two distinguishable levels on which socialists and communists must adjust to the principles of the rule of law:

a) As experience shows, the normative requirements resulting from these principles are at risk of being violated by the Realpolitik of those in power and violence; they require their defense. One need only think of the 1956 ruling of the Federal Constitutional Court, which, at the request of the federal government, dissolved and expropriated the party most fatally persecuted by the Nazis, the KPD; of the subsequent nearly 140,000 preliminary proceedings with some 7,000 convictions; of the practice of banning people from practicing their professions; of the (regardless of the legal consequences resulting from GG-Art. 103 of the Basic Law) after 1990, two hundred GDR lawyers were convicted by a justice system in the FRG that had not previously convicted a single judge of the Nazi justice system with its 50th birthday. 000 death sentences; to the participation of the Federal Republic, even if only as a vassal of another state in the at least illegally begun, as a whole: wars against Yugoslavia (1999), against Afghanistan (2001), against Iraq (2003) and against Libya (2011), which were waged in violation of international law, on the grave of national and international rule of law and with total informational surveillance and torture methods, and in which participation is declared to be part of the reason of state of the FRG - but reason of state means action by the state without regard to morality and law! Here a continuous commitment to the principles of the rule of law is necessary, not primarily in the legal interest, but in the interest of progress of mankind. [25]

b) As part of an overall capitalist legal system, the transformation of the principles of the rule of law into legal norms contributes to maintaining relations of exploitation and oppression. Since, as Ernst Bloch put it,[26] "despite the relative legal certainty in prosperity, a state under the rule of law is at the same time a disguise for rich and poor, capable of giving interested formalism the appearance of a special objectivity, that of impartiality and its justice," criticism of it remains inevitable. This is also because the legal certainty, which is legally equal for the economically unequal, contributes to the fact that those who are actually oppressed by the structural power relations do not consider themselves oppressed, but above all those who are entitled to advancement, and with almost logical coercive force seduces them into an opportunistic willingness to adapt to the respective lesser evils, which the rulers are only too happy to impose on the others and which then often ends in their complicity. Continuing the findings of Wolfgang Abendroth's Antagonistic Society and Political Democracy, Neuwied 1967, and also of Helmut Ridder's [Alternative] Commentary on the Basic Law, Neuwied 1984, unbroken resistance is called for. Of course, this is not only a question of insight, but also of character.

Literature:

[Alternative] Commentary on the Basic Law of the FRG, Neuwied 1984, pp. 1288-1337: "Rechtsstaat"; Otto Bähr, Der Rechtsstaat, Cassel 1864; Ernst Benda, "Der soziale Rechtsstaat", in: Handbuch des Verfassungsrechts, Berlin 1994, pp. 719-779; Michael Benjamin, "Rule of Law and Democracy," in: Journal marxistische Erneuerung (30), 1997, pp. 117-128; Brand/Hattenhauer (ed.), Der europäische Rechtsstaat - Zeugnisse seiner Geschichte, Heidelberg 1994; Fischer-Lescano (ed. ), Der Staat der Klassengesellschaft, Baden-Baden 2012; Forsthoff (ed.), Rechtsstaatlichkeit und Sozialstaatlichkeit, Darmstadt 1968; Graulich/Simon (ed.), Terrorismus und Rechtsstaatlichkeit, Berlin 2007; Ludwig Gumplowcz, Rechtsstaat und Sozialismus, Innsbruck 1881; Habermas, Faktizität und Geltung, Frankfurt 1992, pp. 166-237, 571-599: "Rechtsstaat"; Gustav Heinemann, Plea for the Rule of Law, Karlsruhe 1969; Hermann Heller, Rechtsstaat oder Diktatur, Tübingen 1930; Heuer/Riege, Der Rechtsstaat - eine Legende? Baden-Baden 1992; Philip Kunig, The Principle of the Rule of Law, Tübingen 1986; Ludwig, The Rule of Law in the European Union, Baden-Baden 2011; Maihofer, Rule of Law and Human Dignity, Frankfurt 1968; Karl A. Mollnau, "Die Rechtsstaatsproblematik in der Rechtswissenschaft der DDR", in: Jahrbuch zur Staats- und Verwaltungswissenschaft, 9 (1996), p. 47-60; Ingo Müller, "Die DDR - ein Unrechtsstaat?", in: Neue Justiz, 46 (1992), pp. 281-283; Norman Paech, "Rechtsstaat", in: Demokratie und Recht, Special Issue 1989, pp. 3-12; Helmut Ridder, "Die neueren Entwicklungen des Rechtsstaats", in: Wahrheit und Wahrhaftigkeit in der Rechtsphilosophie, Berlin 1987, pp. 116-134; Roellecke, "Rechtsstaat, Nichtrechtsstaat, Unrechtsstaat", in: Rechtstheorie, 28 (1997), pp. 299-314; Schlink, "Rechtsstaat und revolutionäre Gerechtigkeit", in: Neue Justiz, 48 (1994), pp. 433-437; Karl-Heinz Schöneburg, "Sozialistischer Rechtsstaat", in: spectrum, (21) 1990, No. 3, pp. 20-22; Volkmar Schöneburg, "Rechtsstaat versus Unrechtsstaat", in: Ansichten zur Geschichte der DDR, Vol. 5, Bonn 1994, pp. 149-161; Ekkehart Stein, Staatsrecht, Tübingen 2007, Chapter 4: "The Social Rule of Law"; Tohidipur (ed.), Der bürgerlicher Rechtsstaat, Vol. 1-2, Frankfurt 1978; Ingo Wagner, Die DDR - ein Unrechtsstaat? Leipzig 1994; Uwe Wesel, Geschichte des Rechts, Munich 2006.

Remarks:

1] The subsequently recorded and also revised version of the lecture given on September 6, 2014, as a guest of the Federal Coordination Meeting of the CPF, is based on several publications by the author, among which are: "Gesetzgebung und Gesetzlichkeit" [1956], in: Staat und Recht, 39 (1990), p. 372-381; "Von der Pflicht zur Gesetzgebung im Rechtsstaat", in: Kritische Vierteljahresschrift für Gesetzgebung, 75 (1992), pp. 275-283; "Zur Gerechtigkeit des Rechtsstaates", in: Berliner Debatte Initial, 4/1996, pp. 7-13; "Rule of Law versus State of Power", in: Journal marxistische Erneuerung, 8 (1997), pp. 31-42; "On the Tension between Rule of Law and Justice", in: Between Triumph and Crisis, Opladen 1998, pp. 393-401; Recht und Unrecht, Bielefeld 2004; Historisierende Rechtsphilosophie, Freiburg 2009; "Legalität / Legitimität", in: Historisch-kritisches Wörterbuch des Marxismus, Vol. 8, Hamburg 2012, pp. 799-839; "Marx/Engels-Anthologie zur Natur des Staates", in: Marxistische Blätter, 2014, Issue 6.

2] Cf. Osborn's Concise Law Dictionary, London 2009, p. 368; Dicey, Introduction to the Study of the Law of the Constitution [1885], London 1961, p. 183: "rule of law"; he explains the formula "the Queen can do no wrong" fearlessly with: "the Queen cannot be made personally responsible for any act done by her; if (to give an absurd example) the Queen were herself to shoot the prime minister through the head, no court in England should take cognizance of the act" (p. 24).

3] Johann Wilhelm Placidus [d. i. J. W. Petersen], Litheratur der Staatslehre, Strasburg 1798, p. 73.

4] Kant, Rechtslehre, Berlin 1981, pp. 125-133; Humboldt, Menschenbildung und Staatsverfassung, Berlin 1994, p. 229.

5] Adam H. Müller, Die Elemente der Staatskunst [Berlin 1809], Jena 1922, pp. 165, 200.

6] Rotteck/Welcker, Das Staats-Lexikon, Vol. 3, Altona 1846, p. 527; also: Philosophy of Law in Rotteck/Welcker's book (Texts from the State Dictionary 1834-1847), Freiburg 1994, pp. 390-418: "Natürliches Recht und liberaler Rechtsstaat".

7] Marx/Engels, Werke, Vol. 42, Berlin/GDR 1983, p. 23.

8] Stahl, Die Philosophie des Rechts, vol. II/2, Heidelberg 1856, p. 137 ff. (5th edition 1878).

9] See Detlef Joseph (ed.), Rechtsstaat und Klassenjustiz, Freiburg/Berlin 1996: Texte aus der sozialdemokratischen Neuen Zeit 1883-1914.

10] Rosa Luxemburg, Gesammelte Werke, vol. 4, Berlin/GDR 1974, p. 53.

11] See Heller, Rechtsstaat oder Diktatur, Tübingen 1929; Radbruch, Rechtsphilosophie [1932], Heidelberg 2003, pp. 169-174; Kelsen, Allgemeine Staatslehre, Berlin 1925, p. 91; Schmitt, Legalität und Legitimität, Munich 1932, p. 19.

12] For the foregoing, see the supporting documents: Martin Hirsch (ed.), Recht, Verwaltung und Justiz im Nationalsozialismus (Quellentexte), Cologne 1984.

13] Otto Koellreutter, Deutsches Verfassungsrecht, Berlin 1935, p. 12: "The National Socialist state is a distinct constitutional state because the idea of the state and the idea of law flow from the same national source.

14] Cf. Fischer/Künzel (ed.) Constitutions of German Länder and States [from 1816 to 1974], Berlin/GDR 1989; Horst Dreier / Fabian Wittreck (ed.), Basic Law [of the FRG with all amendments and other texts on German and European constitutional law], Tübingen 2012.

15] See Joachim Perels, Das juristische Erbe des Dritten Reiches, Frankfurt 1999; Ingo Müller, Furchtbare Juristen, Munich 1989.

16] Cf. Alexander v. Brünneck, Politische Justiz gegen Kommunisten in der Bundesrepublik Deutschland 1949-1968, Frankfurt 1978; Diether Posser, Anwalt im Kalten Krieg, Bonn 2000, especially pp. 147-246.

17] Ernst Benda, in: Handbuch des Verfassungsrechts, Berlin 1994, pp. 720-728.

18] Horst Tilch (ed.), Deutsches Rechtslexikon, Vol. 3, Munich 2001, p. 3498 f.; Creifeld's Rechtswörterbuch, Munich 2002, p. 1112.

19] Printed in: Geschichte des Staates und des Rechts der DDR (Documents 1945-1949), Berlin/GDR 1984, p. 58.

20] Paschukanis, Allgemeine Rechtslehre und Marxismus [1924/1929], Freiburg 1991, p. 153.

21] Polak, "Rechtsstaat und Demokratie, in: Max Fechner (ed.), Beiträge zur Demokratisierung der Justiz, Berlin 1948, pp. 76-80; Polak, Redenden und Aufsätze, Berlin 1968, pp. 141-144.

22] See the details and analyses in Uwe-Jens Heuer / Gerhard Riege, Der Rechtsstaat - ein Legende?, Baden-Baden 1992, pp. 82-99; U.-J. Heuer (ed.), Die Rechtsordnung der DDR, Baden-Baden 1995, pp. 611-622.

23] Cf. Volkmar Schöneburg, Rechtspolitik und Menschenwürde, Potsdam 2014, p. 201-204 (of the 231 death sentences passed in the GDR between 1949 and 1981, of which 94 were passed on Nazi criminals, 160 were carried out).

Peter Franz Reichensperger (1810-1892): "I think the constitutional state consists in the fact that the sword is entrusted to the authorities [by God] for the terror of the wicked and for the protection of those who are in their right; a state of injustice, on the other hand, would have to be called the one that protects the troublemakers and threatens those who are in their right.

25] Cf. H. Klenner, "Terrorismusverdacht und Bürgerrechte", in: Mitteilungen der KPF, 1- 2008, p. 1-17; also in: Ellen Brombacher (ed.), Klartexte, Berlin 2009, pp. 284-308.

26] Ernst Bloch, Naturrecht und menschliche Würde [1961], Frankfurt 1985, p. 158.



To each his own! History of a keyword

by Hermann Klenner

[This article published on Feb 16, 2002 is translated from the German on the Internet, https://www.linksnet.de/artikel/18162.]

Traditionally handed down for two and a half millennia, "to each his own" has become one of the longest serving slogans in the world. Moreover, as a result of its international standing ...

... of Greek philosophy as well as Roman law in its original Latin version Suum cuique! it has spread across many national borders. It is sometimes used in a stencil-like manner, i.e. without thinking about anything at all, and in any case nothing generally valid. Or with a banal ulterior motive, such as: "To each his own, and to me a little bit more!” In any case, the meaning of "each his own" is not unmistakable. But it is not the unambiguity, but the variety of interpretations of intelligent sentences that is the normal thing anyway. For the simple reason that the intellectual content of a text cannot be understood without its respective context. And this changes like everything else in the world; more quickly, at any rate, than words, the petrified thoughts. No concept is inherent in words. It is men who denote and understand something - or not!

The keyword "to each his own" has become a buzzword, since the Eastern Roman Emperor Justinian (born in a village near Skopje) had the suum cuique! used as the basis for his Pandekten of 533 A.D., comprising fifty books, as a principle of law and justice. This can still be read in Shakespeare a millennium later: Suum cuique is our novel justice (Titus Andronicus I, 2). And Justinian's legislative work proved to be the most momentous codification in world history: Its regulations were received throughout Europe; they were valid in Germany, at least in part, until the end of the 19th century and can still be traced in today's Civil Code; European law, in turn, infected law in the rest of the world by means of European power.

And with this, each his own! became the formula of justice par excellence: "Law is the art of the good and just.Â...Justice is the unchanging and enduring will to grant everyone his right. The rules of justice are the following: live honorably, do not hurt others, grant to each his own" (Digests 1, 1, 1 and 1, 1, 10).

Although Justinian's Corpus iuris civilis may be the source of the future slogan Suum cuique! and its German-language version Jedem das Seine! (which gave it the status of a legal principle binding for centuries!), Rome's law is not the source of the idea underlying this slogan. The Digests themselves referred to Ulpian, murdered by a Praetorian Guard in 223 C.E., from whose rulebook the suum cuique passages had been excerpted. And it may be assumed that this highly productive jurist knew at least some of the writings of Cicero, who in turn discussed the suum cuique idea in at least eight of his works. Before Cicero, Seneca (Epistolae morales 81, 7) and, as Aulus Gellius (Noctes Atticae XIII, 24) reports, the older Cato had already used the suum cuique! in formulas.

That the Romans, as in many others, were in the spiritual debt of the Greeks in this case, too, was to be assumed; it can be proven: Aristotle already defined justice as a virtue by which each receives what is his (rhetoric 1366 b), and Plato had Socrates claim from the mouth of Socrates, referring to the poet Simonides of Keos (556-468 BCE), that justice consists in giving everyone what is due to him (Politeia 332). - Forgive the intrusive accuracy in the search for clues. But with not too many keywords, not only his own source but also its intellectual history can be proven in detail. -

But now, finally, into the present. And it's got it! For to each his own! has come into the talk. Very much so, and with political explosiveness. A buzzword, then, that makes headlines. This is not the usual thing either, especially since this catchword is ancient and the scandal is brand new. Normally, keywords are threatened by fate, that they are worn out to the point of literally being meaningless. Or they slip into the banal. So, the justice formula "To each his own!" could have been flattened to the fun society motto "To each little animal its little pleasures!

But it came quite differently. The copywriters of some large companies had remembered the little slogan with its advertising all-quantifier "everyone". Rather than trying to prematurely identify the media's extraneous determination of buyer behavior with: "Cats would buy whiskas" or with: "Persil, you know what you have", Microsoft, Burger King, Nokia, REWE and Telekom, among others, suggested to the honorable public that "everyone" who thinks highly of himself had to buy "his" cell phone, "his" barbecue accessories, "his" laptop program or "his" mincemeat sandwich of the corresponding brand.

It was not the classical philologists who protested against the fact that, because of the filthy mammon, antique ideas were being played fast and loose with and sacrilege was being committed by degrading a venerable measure of justice to a profane advertising slogan. Instead, a historically and politically sensitive public found it obscene that capitalist commerce was advertised with a text that the Nazi barbarians had had forged into the entrance gate of their Buchenwald concentration camp in order to mock their victims.

Between 1937 and 1945, some 240,000 people from 32 nations were deported to the Buchenwald concentration camp set up on Ettersberg near Weimar, with its motto "To Each His Own". Some 56,000 of them did not survive the terror, including the Communist Ernst Thälmann, the Social Democrat Rudolf Breitscheid, and the priest Paul Schneider. The prisoners had been forced into slave labor in the 136 field commandos of this concentration camp, including those at the capitalist armaments plants BMW, Bochumer Verein, Braunkohle-Benzin-AG, IG-Farben, Junkers, Krupp, Rheinmetall-Borsig and Wintershall.

That the Nazis were masters of the most perverse demagogy was, as is well known, part of the conditions under which they operated. It is a truism that the terms of business of advertising copywriters do not include sensitivity for inhumane associations of their slogans, but rather the unscrupulous protection of the interests of the producers and sellers of goods. It does not escape the attention of today's advertisers that whatever the text of the constitution says, the key category of bourgeois society is not the dignity of people, but their value for the winners of added value. It is outrageous, however, that in the face of escalating neo-fascist atrocities in Germany, an official policy that repeatedly leads to nationalism and the pitiful quarrels over compensation payments to Nazi forced laborers, German companies refused to immediately withdraw the (tax-deductible!) advertising materials produced on their behalf from circulation, even though they needed outside tips to become aware of their frivolous, if not sadistic-looking at least thoughtlessness.

But had the Nazis at the time abused or merely used this catchword for their exploitation and murder regime with their provocative use of Jedem das Seine! This question cannot be answered as simply as it may seem at first glance. Opinions differ diametrically as to whether the Buchenwald concentration camp was a use or an abuse of the buzzword. While the German legal philosopher Arthur Kaufmann saw the Nazis' use of "Jedem das Seine!" (each to his own) as proof of their frivolity, with which they mocked law and justice, the Austrian philosopher Ernst Topitsch said that there was "nothing to object to from a purely logical point of view".

This contrast of opinions reflects at the same time the even more fundamental contradiction of interpretations about the actual meaning of the keyword itself. For some people appreciate to each his own! as starting point of any reflection on the essence of justice and count it among its fundamental principles (so Helmut Coing), while others consider this formula of justice, which is in any case most frequently used in the history of thought of mankind, empty of content: Since it offers no criterion for what is due to everyone as his own, it is tautological (according to Hans Kelsen).

Even if it can be proved here only paradigmatically: In its two and a half thousand-year history of use, the intellectual content of each one's own! also meant different, even contradictory things, and was thus justified. Even the most gifted hermeneutics may not be able to establish a congruence between the views of each his own! as they were represented (in chronological order) by Plato, Aristotle, Cato, Seneca, Cicero, Ulpian, Paul (Galatians VI, 5), Augustine (De civitate dei XIX, 21), Hobbes (Leviathan I, 15), Spinoza (Tractatus politicus II, 23), Kant (Classification of Legal Doctrine A) or Nietzsche (Human, All-too-human I, 92).

To become concrete: On January 18, 1701, when the Elector of Brandenburg had crowned himself King of Prussia by his own hand, the present Frederick I. donated the Order of the Black Eagle, an eight-pointed silver star with a black eagle in an orange field and above it the motto SUUM CUIQUE, as the highest Prussian decoration. The respective Prussian king was a Grand Master, each of his sons born knights of this order, which could also be awarded to foreign princes, their most distinguished dignitaries as well as to domestic military men and officials of the highest rank. The Order of the Black Eagle was therefore not, as with other orders, "toys for old boys", as Kuno Fischer called such decorations, which, however, his master Hegel did not spurn a year before his death when he was awarded the - admittedly only - Red Eagle Order 3rd class in Berlin. But was the suum cuique on the Order of Prussia (since 1918 Hohenzollernorden) a use or an abuse of Ulpian's formula of justice? Did the self-congratulation of crowned noblemen, ennobled by the legal text of the digests, have anything to do with, for example, the view of the great thinker Leibniz (De Jure et Justitia; Tria Praecepta), who two decades earlier had counted the suum cuique! among the three eternal maxims of justice, as was confirmed in September 2001 by the VII Congress of the Order of the Red Eagles, which met in Berlin. International Leibniz Congress meeting in Berlin in September 2001 considered it necessary to remember in a special resolution?

Or, to bring another point of view into the argumentation, does Thomas Aquino forbid the use of suum cuique! as a justification for the legitimacy of slavery and serfdom (Summa theologica II-II, 57, 4) to anyone who wants to leave these two forms of exploitation and domination behind, to refer to the catchword in whatever context? And couldn't the Nazi use of each his own! be considered an appropriate continuation of the legitimation of the master-slave relationship by the scholastic? But then what is one to make of the fact that the School for Military Police of the German Federal Armed Forces, founded in 1956, has chosen suum cuique! as its motto?

Ernst Bloch, at any rate, countered the patriarchal suum cuique! as the standard of justice from above with the cardinal virtue of a morality without master and servant, but with the radical claim: "Each according to his abilities, each according to his needs," which would also allow Marx to make use of this very formula suggested by the Saint-Simonists, whose "each one his own" offered a completely different criterion for what was due to each one as his own.

To return once again to the scandal in the history of the use of "To each his own!” The misuse of a catchword does not cancel its future usefulness; rather the reverse, for a useless formula cannot be misused at all. Admittedly, the further use of a meanwhile abused catchword presupposes a sensitivity that one may at least expect from those whose profession consists in dealing with words and their meaning.

The historians Kurt Pätzold and Manfred Weißbecker had the idea of researching the history of meaning of catchwords. The idea resulted in a two-volume work that will be presented at the Leipzig Book Fair: "Schlagwörter und Schlachtrufe. From two centuries of German history" (Militzke Verlag Leipzig). The legal philosopher Hermann Klenner got to the bottom of the keyword.