Appendix

Strong State and Sound Economy:

An Address to Business Leaders 1
Car/ Schmitt

Gentlemen! I shall deal with the issue 'Strong State and Sound
Economy' from the point of view of the state. You have heard the
remarks of your Chair, Dr Springorum, concerning a series of
economic projects and possibilities. Dr Springorum also
mentioned the projects and plans of my dear friend Popitz, 2 that
have to do with the administrative aspects of that issue. Aside
1 This is a translation of Schmitt's address to a conference of the

Langnamverein entitled 'Sound Economy in a Strong State', held in Dusseldorf on

23 November 1932 and published in its proceedings (Schmitt, 1932c: 13-32).
Schmitt's address was untitled. This translation uses the text published in the
Langnamverein proceedings, but adds the title Schmitt gave it when he
republished it in Volk und Reich (Schmitt, 1933a). It appeared in January 1933,
'only days before President Hindenburg appointed Hitler chancellor of Germany'
(Schmitt, 1938: p. x). In February 1933, sections of Schmitt's address were
reproduced in an article entitled 'Weiterentwicklung des totalen Staats in
Deutschland' published in Europiiische Revue (Schmitt, 1933e). It was among the
essays that appeared in Schmitt's Verfassungsrechtliche Aufsiitze (1958).
The Langnamverein was an association of Ruhr industrialists whose full name,
Vereins zur Wahrung der gemeinsamen wirtschaftlichen Interessen in Rhein/and
und Westfalen (Association for the Furtherance of the Joint Economic Interests of
the Rhmeland and Westphalia), forced its abbreviation to be 'Long Name
(Langnam) Association' (Abraham, 1981: 122).
The 23 November meeting of the Langnamverein had been convened as a show
of support for Papen 's policies before he tendered his resignation on 17
November. At the time of the meeting, Papen was only Acting Chancellor. After
the conference, one of its participants wrote: 'The Langnamverein convention ...
originally conceived within the framework of the Papen program and intended to
support him revealed [instead] the fact that almost all of industry supports the
appointment of Hitler, no matter under what circumstances' (quoted in Abraham,
1981: 321-2; compare with Turner, 1985: 302).
2 According to Benrin, Johannes Popitz, Prussian Finance Minister and
APPENDIX 213

from these predominantly economic or administrative aspects, it

is necessary to pay attention to state matters, and thus by neces-
sity to the political. I do not intend to engage in politics, but I
must refer to political matters because the state is something
political, and a strong state is, in a particularly intensive way, a
political formation. I share Dr Springorum's opinion when he said
that only a strong state can remove itself from non-state affairs. 3
The process of depoliticization and the creation of state-free
spheres is a political process. I would like to make this my point
of departure.
Two years ago I addressed this conference at this same place.
Your meeting then bore the motto 'Courage to Action'. On that
occasion I allowed myself to say that beautifully designed organ-
izational reform plans were not as relevant as real political forces,
how to identify them accurately, and then recruit them in some
fashion. Above all, the regime was supposed to use all legal
means. My assumption was that those legal possibilities were
strong, much stronger than one would have then surmised. This
view has not been largely disproved since that time. In these two
years we have come to recognize the practical usefulness and
energy of article 48. Admittedly, a strong opposition has been
launched to discredit and defame article 48. This ought to prove
that even today article 48 is a good, practical and indispensable
instrument of a strong government.

Schmitt's close friend, should be credited as 'proper author of the Schmittian

notion of "a free economy in a strong state'" (Bentin, 1972: 125). Schmitt's life-
long friendship with Popitz began in Berlin in 1929 (Schmitt, 1958: 8; compare
with Noack, 1993: 102-7).
3 Fritz Springorum was at the time managing director of the Eisen- und

Stahlwerk Hoesch AG of Dortmund, treasurer of the Ruhrlade and chair of the

Langnamverein. In his prefatory remarks to the audience of 1,500 participants,
Springorum expressed support for Papen's blueprint for a strong state. He
acknowledged that, at first sight, it appeared likely that business would favour a
weak state. A strong state could impose 'all kinds of fetters on private business
through taxes, credit policies and social policies' (Springorum, 1932: 5). But in
reality only a strong state was able to set limits to its own activity and did not
overreach its high functions. Springorum praised Papen's proposed constitutional
reforms, which he thought would strengthen the state. He also suggested that the
Chancellor should continue in office and cautioned against implementation of a
job-creation programme by the government. The best employment programme lay
in the 'return to the sound economic methods of private capitalism' (Springorum,
1932: 11; compare with Turner, 1985: 303).
214 APPENDIX

It is reasonable to raise the question whether in these two years

anyone truly showed the courage to action that was then
demanded of you. Could we, in this respect, acknowledge any
achievement? We often get the general impression that the state
has grown weaker and the circumstances have worsened and
become more chaotic. It seems to me that one may respond affir-
matively to the question whether, with respect to courage to
action, one single achievement is to be acknowledged. The
Prussian coup of 20 July 4 went to the core of the Weimar consti-
tution's worst design defect- the dualism between the Reich and
Prussia - and rectified it on a crucial point. This has to be
acknowledged as an achievement and as proof of courage to
action. Subsequently this achievement became, if I may say so,
rapidly relativized and even paralysed. Here lies another danger
for a strong state. The danger came to light during the trial held
before the supreme court in Leipzig (there were actually twelve
trials). 5 As soon as a genuine courage to action is exhibited and a
strong state, requested for so long, really steps forward, the
strangest confederates and all those interested in the status quo
are found together united in their resistance. The coalition that
developed during this trial against the Reich used Leipzig as a
scenario. Factions and dismissed ministers combined together
with Bavaria and Baden- the states that make a lot of noise with
respect to their statehood. The federal party-state revealed itself
in full daylight. The Bavarian representative referred to the
dignity of Bavaria as a state, and described the Leipzig supreme
court as an interstate body. He went as far as to compare it to the
4 President Hindenburg appointed Franz von Papen as Chancellor on 1 June

1932, and on 4 June dissolved the Reichstag, invoking article 35 of the constitu-
tion. On 20 July Papen, with article 48 at his disposal, placed Prussia under
martial law and dissolved its government. This event became know as the Prussian
coup of 20 July (compare with Bendersky, 1983: 154-7; Noack, 1993: 137-54).
Even though Schmitt did not share Papen's constitutional reform plans, he openly
supported his government (Muth, 1971: 107) and participated, as a juridical
expert, in designing a strategy for the Prussian coup (Huber, 1988: 38). It could
not have been a surprise when during the cabinet session of 25 July Papen
announced that Schmitt would officially represent the government before the
supreme court at Leipzig.
5 According to Bendersky, '[b]y the time the trial before the supreme court in

Leipzig finally opened on October 10, the number of plaintiffs had expanded to
include the states of Baden and Bavaria, as well as the Center and SPD factions of
the Prussian Landtag' (1983: 160).
APPENDIX 215

so-called 'World Court' at The Hague. But when I asked how

could this state of Bavaria, showing up hand in hand with
dismissed Prussian ministers and Prussian parliamentary factions,
disregard the first assumption in interstate affairs and interna-
tional courtesy, namely non-intervention in the affairs of another
state, the reply was: 'We welcome federal friends wherever we
find them.' These are significant words and, as it were, the
insignia of the federal party-state. You should be sure, gentlemen,
that when a necessarily strong state actually arises, the most
heterogeneous federal friends join together to see that it does not
become too strong.
Therein lies the great lesson of this Leipzig trial. I refer to it in
the singular because, for the most part, what went on in it has not
become part of the political consciousness of the German people.
At present, the grotesque coexistence of three governments 6 in the
capital of the German Reich, Berlin, makes a mockery of the
German state and is a natural and adequate consequence of judi-
cial politics. Were we actually to enter into a new era of trials like
the one held at the supreme court in Leipzig, I fear then we would
not need to refer to a 'strong state'. This is a clearly discernible
danger for anyone who pays attention to the lessons of German
constitutional history and the development of the contemporary
federal party-state. During three wretched centuries the political
unity of the German people had collapsed and, lest we forget, in
accordance with the methods of judicial politics! Those were the
days of the Imperial court in Wezlar and the Imperial privy
council. To my dismay I saw the shadow of that period appear
again at Leipzig. We should hope that it soon disappears, never
again to return.
That sole achievement, the one obtained on 20 July, was
distorted by the Leipzig verdict. Aside from this, a retrospective
look at this latest year indicates that a general conception has
become pervasive and that the actual leadership methods, and the
management of the relations between the state and the economy,
are generally seen as not viable. The worst spiritual confusion in
this respect should have disappeared by now. For approximately

6 The three governments Schmitt is referring to were: the government of the

Reich, the government of Prussia and the commissarial Prussian government

headed by Papen (compare with Noack, 1993: 143).
216 APPENDIX

ten years now, the whole of Germany and the whole planet has
echoed the call: Away with politics! The solution to all problems
was said to be the elimination of politics and the elimination of
the state. All matters should be decided by technical and
economic experts according to allegedly purely objective, techni-
cal and economic points of view. Innumerable articles and
brochures published by famous authors and economists of many
nations repeated this a thousand times between 1919 and 1924.
In the mean time we have known about conferences of experts
and scientists. Mountains of valuable material have been stored in
Geneva, Berlin and other capitals of the world, and the decision
on important issues lies buried under this kind of objectivity. It
turns out that this sort of depoliticization may be politically
useful in deferring unpleasant problems and necessary changes
through allowing any resolute will to exhaust itself.
After those approximately five years of radical demands for
exhaustive non-politics, an idea has seeped through - all prob-
lems may be political problems after all. In Germany we
experienced a politicization of all economic, cultural, religious
and other dimensions of human existence. This would have been
inconceivable in the nineteenth century. After years of attempting
to reduce the state to economics, it now appears that economics
has been entirely politicized. One can now fully grasp the effect-
ive and illuminating formula of the total state. I will examine it in
more detail, for it surely does not only provide the key to help
clarify the issue of the relations between the economy and the
state, but it also indicates the direction from where the solution
may come. A total state exists. One may angrily and indignantly
reject the formula 'total state' as barbaric, Slavic, un-German or
un-Christian, but that will not make it disappear from view.
Every state is anxious to acquire the power needed to exercise its
political domination. The surest sign of a real state is that it
proceeds in that manner. Presently, we are all under the impres-
sion that power has expanded. Every state has expanded its
power by technological means, more precisely, by the techno-
military instruments of power. Modern technical means give
governments of even small states such power and effective possi-
bilities that old notions concerning state power and the possibility
of resisting it fade away. The traditional images of street marches,
barricades, etc. are child's play in light of contemporary coercive
APPENDIX 217

methods. A state is forced to acquire modern weaponry. If it were

to lack the strength or the courage to do so, another power or
organization will do so and will thus become the state.
The proliferation of technical means also allows for the possi-
bility of mass propaganda, which may be more effective than the
press and other traditional means of influencing public opinion.
In present-day Germany, there still exists a widely respected
freedom of the press. In spite of all emergency decrees, the scope
for the free expression of opinions is quite broad; nobody thinks
of censuring the press. But every state must control the new tech-
nical means - film and radio. There is no state so liberal as to
reject intensive censure and control of radio, film and other visual
media. No state can afford to yield these new technical means of
mass control, mass suggestion and the formation of public
opinion to an opponent. The formula 'total state' accurately
describes the contemporary state's undreamt-of new means of
coercion and possibilities of the greatest intensity. We barely
conceive of the effect these will have since our vocabulary and
imagination are still deeply seated in the nineteenth century. In
this respect the total state is at the same time an especially strong
state. It is total in the sense of quality and energy. The fascist state
calls itself stato totalitario/ and by this it means that the new
powers of coercion belong exclusively to the state and promote its
escalation of power. A state does not allow forces inimical to it,
or those that limit or divide it, to develop within in its interior. It
does not contemplate surrendering new powers of coercion to its
own enemies and destroyers, thus burying its power under such
formulae as liberalism, rule of law, etc. It can discern ~etween
friends and enemies. In this sense, as has been said, every true
state is, and always has been, a total state. 8 The novelty is only
7 Schrnitt's interest in Mussolini and Italian fascism sprang from his fascination

with myth (Mehring, 1989: 86) and his desire to revitalize the state (Breuer, 1993:
131). In 1929, in an article entitled 'Wesen und Werden des faschistischen Staatc:s'
(a review of Erwin von Beckerath's book with that same title), Schmitt wrote: 'The
fascist state decides not as a neutral but as a higher third. That is its supremacy.
Whence does its energy and new force come from? From national enthusiasm,
from Mussolini's individual energy, from the war veteran movement ... The
fascist state will again be a state of ancient probity, with visible leaders and repre-
sentatives, and not the fa~rade and antechamber of invisible and non-responsible
rulers and financiers' (Schmitt, 1940: 113-14).
8 Compare with Schmitt's assertion in his Verfassungslehre that 'the modern
218 APPENDIX

new technological power, whose political meamng one should

clearly acknowledge. 9
There is, however, another meaning of the expression 'total
state'. Unfortunately this is the one that can be applied to the
present-day German state. This kind of total state is one that
penetrates all domains and all spheres of human existence, one
that knows of no state-free sphere because it can no longer
discriminate. It is total in a purely quantitative sense, in the sense
of pure volume and not in the sense of intensity or political
energy. 10 This is what defines Germany's party-state. Its volume
has been expanded to a monstrous degree. It concerns itself with
all possible affairs. There is nothing which is not somehow related
to the state. Not even a bowling club can continue to exist
without maintaining a good relation with the state, that is to say,
to a certain party and funds. This totality, in the sense of volume,
is the opposite to force and strength. The present German state is
total due to weakness and lack of resistance, due to its incapacity
to resist the onslaught of parties and organized interests. 11 It must

state is a closed political unity and essentially the status, namely the total status
that relativizes all other status within it' (Schmitt, 1928: 173 ).
9 Quaritsch laments Schmitt's casual use of the same label 'total state' to refer

to two 'opposed realities', the authoritarian strong state and the weak totalitarian
state (1988: 24, 41; compare with Koenen, 1995: 198-205). It is possible, though,
that Schmitt purposely referred to his and Ziegler's notion of authoritarian state
as 'total state' to emphasize its affinity with Mussolini's stato totalitario (compare
with Heller, 1933: 296).
10 Schmitt referred for the first time to the notion of a quantitative total state

in his Legalitat und Legitimitat (Schmitt, 1932a: 96). He adopted Ziegler's view
that total politicization meant a 'quantitative expansion' of the state, and not a
strengthening of its power and authority (Ziegler, 1932: 7).
11 Only a strong state could rise above contradictory interests. Alexander

Riistow's description of the strong state as 'a state that rose above groups and
above interests, that could extricate itself from entanglement with economic inter-
ests' (1932: 68) coincides with Schmitt's conception. As Haselbach observes,
Riistow's call for a strong state ought to be seen in the context of
Ordoliberalismus, Germany's neoliberal movement of the 1920s and 1930s: 'The
point of departure of a "new liberalism" was the revocation of the fusion between
the state and the economic spheres. Riistow espoused the separation of state and
society. Like nineteenth-century entrepreneurial capitalism, society should again
regulate itself with respect to the market and the price system' (1991: 40). Anthony
Nicholls notes that Riistow's lecture at the 28 September 1932 meeting of the
German Association for Social Policy (Verein fUr Sozialpolitik) was 'a landmark in
the prehistory of the social market economy. Riistow's words cettainly made a
APPENDIX 219

yield and satisfy everyone, while simultaneously pleasing contra-

dictory interests. As I have indicated, its expansion is the
consequence not of its strength but of its weakness.

11

How is it that we got into this condition of total weakness?

If we take a closer look, we see that we do not have a total state
but a plurality of total parties. Each party realizes in itself the
totality, totally absorbing their members, guiding individuals
from the cradle to the grave, from kindergarten to burial and
cremation, situating itself totally in the most diverse social groups
and passing on to its membership the correct views, the correct
ideology, the correct form of state, the correct economic system,
and the correct sociability on account of the party. Old liberal-
styled parties, which are not capable of such organization, are in
danger of being pulverized by the millstones of the modern total
parties. The drive towards total politicization appears to be
inescapable.
Coexistence between these total visions, which on their way to
parliament dominate the state and turn it into the aim of their
compromises, leads to that remarkable indiscriminate quant-
itative expansion of the state in all directions. A strong
well-organized plural party system interposes itself between the
state and its government on the one side, and the mass of citizens
on the other, and manipulates the monopoly of politics- the most
astounding of all monopolies, the monopoly of political media-
tion, the monopoly of the transformation of interests, which of
course must exist, into the will of the state. The need to submit to
this political monopoly which is the case with every vital concern
and every major social organization today in Germany, modifies
and falsifies all constitutional institutions. This political mono-
poly of a series of strong political organizations is more important
than any economic monopoly. These organizations will tolerate a
strong state only if this state can be exploited for their purposes.

great impression on his listeners, among who was at least one future Minister of
Economics in the Federal Republic of Germany' (1994: 48). But Nicholls fails to
mention Riistow's explicit agreement with Schmitt's views on the total state.
220 APPENDIX

The principal tool of this political monopoly is the nomination

of the list of candidates. Every election depends on the list of
candidates. The electorate cannot nominate candidates on its
own. Today, the great majority of voters is completely dependent
on approximately five party lists. Elections are no longer direct.
The representative is nominated by the party and not chosen by
the people; so-called elections are fully mediated statements that
voters address to a party organization. The number of parliamen-
tary seats that accrue to each list is thus the only remaining
question. I submit that this process, as it plays itself out today,
does not constitute an election, not just an immediate election but
no election at all. What goes on here? We have five party lists
dictated by five organizations; the masses mount, if I may say so,
five already prepared saddles, and one still refers to the statistical
recording of this process as 'an election'. What does this mean?
One must gain full awareness of this question lest Germany perish
through the use of those very methods. The choice between five
fully incompatible, opposed and closed total systems, which
espouse opposed ideologies, forms of state and economics, and
whose coexistence makes no sense, is absolutely monstrous. Five
organized hostile systems, each of them total and all of them co-
existing - and the people must choose between them five times
each year! Whoever can clearly grasp what that means and then
understand that each time the entire German people must choose
between five opposed ideologies, economic systems and forms of
state, cannot expect that a functioning and active majority may
ever ensue from such a procedure - a majority, even a loosely
connected one, united for the formation of a political will. A
process like this can only give rise to five political systems and
organizations which endure an unstructured, indeed, hostile co-
existence, and whose aim is mutual subjugation and deception.
There should be no delusions on this matter.
Such methods of constituting a political will lead to a purely
quantitative total state that draws no distinction between the
economy and the state, the state and culture, or even between the
state and other spheres of human and social existence. Elections
are no longer elections, representatives are no longer the repre-
sentatives that the constitution conceives. The representative is no
longer an independent, free person, representing the common
welfare over and against partisan interests. The representative is
APPENDIX 221

the partisan that marches in step and knows how to cast a ballot;
debates and ballots in the popular assembly become an empty
farce. Just as the representative is no longer a representative, so
too parliament is no longer parliament. The present-day
Reichstag is not the Reichstag of the Weimar constitution. The
non-confidence vote is not the non-confidence vote understood by
a rational parliamentary system, because today it does not have
the capacity or the willingness to form a functioning and
responsible government. All these constitutional institutions have
become frail and have entirely lost their meaning. If the one last
column of our constitutional order - the Reichsprasident and the
government appointed by him and carried by his confidence -
were not to stand, chaos would probably exist already in full view
and in outward appearances, and even the semblance of order
would have vanished.

Ill

How can we get out of this situation? The state's weakness, due
to the reasons mentioned, has led to the confusion of the state and
the economy, to the confusion of the state and other non-state
spheres. Only a very strong state would be able dissolve this
dreadful coalescence with all kinds of non-state businesses and
interests. That would have to be a painful surgical intervention
and not an 'organic' process in the sense of slow growth. If slow
growth were allowed, rank growth and weeds sprout faster and
multiply more readily than the healthy strains they now cover and
obstruct. A process of depoliticization, the segregation of the state
from non-state spheres is, to repeat, a political procedure. In
today's circumstances, disengagement from politics is a specifi-
cally political act. It cannot be generated by party-political
motives, whether of an economic, cultural or confessional nature;
it can only originate from the state as a whole. The first require-
ment is a clean and clear distinction between state and state-free
spheres. Distinction, not separation! But distinction ought to be
the point of departure.
And first, because we are dealing here with a process that is
primarily political, one ought to start with the state. The state
ought to be again a state. The first prerequisite is obviously a
222 APPENDIX

bureaucracy, which is not a prop or an instrument of party-

political interests or aims. It seems to me that the significant
coalescence of state and party, characteristic of present-day
Germany, is more the result of flawed knowledge and perception
than of bad will. The peculiar coexistence between well-acquired
rights and the right to political activity is not generally acknow-
ledged as intrinsically impossible. 12 Otherwise it would have long
since been dismissed both morally and juridically. We face here a
simple alternative: either well-acquired rights and the forswearing
of all political activity, or vice versa. There is no third alternative.
Until recently, our way of thinking was a notion that was not
familiar and for which we only have a technical expression, a
somewhat awkward foreign term: incompatibilities, that is, irre-
concilabilities.13 Whoever refuses to see that well-acquired
bureaucratic rights are incompatible with party-politics, will
refuse to accept that it is usually the state, communities and other
public associations, who pay a party's employees and collabora-
tors, and that thereby bureaucrats turn out to be something else
than what the constitution prescribes. Here, it is evident that
there is a need for unequivocal distinctions. Until now we have
not clarified the necessity of those incompatibilities. On the
contrary, one may define contemporary Germany as the land of
unlimited compatibilities, where everything may be reconciled
with everything else, where one and the same person may simul-
taneously be a member of the Reichstag, of a provincial assembly,
a representative of the Council of State, a high state functionary,
a party chairperson, and a multitude of other offices. This is
precisely the characteristic expression and product of the type of
quantitative total state that exists today in Germany; it can
neither define itself as state nor distinguish itself from what is not
12 According to Schmitt, only an autonomous and independent bureaucracy

would be be able to counterbalance the effects of unstable party coalitions

(compare with Schmitt, 1928: 172; 1931: 101). He noted that articles 129-30 of
the Weimar constitution protected the bureaucracy against parliamentary inter-
ventions by means of institutional guarantees like tenure and intangible
well-acquired rights. (Article 129 of the Weimar constitution stated that 'the well-
acquired rights of public functionaries are inviolable' and extended these rights to
the armed forces. Article 130 stated: 'Public functionaries serve the whole state
and not one party'.)
13 The issue of incompatibilities is discussed in Schmitt's Verfassungslehre as a

theoretical consequence of the separation of powers (1928: 189-91).

APPENDIX 223

state. Who will then be able to distinguish between spheres, when

state and non-state domains and functions are combined in such
a grotesque manner? For once, we could at least look at this
problem of incompatibilities right in the eye. In Germany, we
have preserved an island in this sea of unlimited compatibilities,
and today every German feels that safeguarding the armed forces
unpolluted by party politics is the equivalent to having saved
Germany and the state. The armed forces were able to elude
that murky flood. This can also be an encouraging paradigm for
the rest of German bureaucracy. It demonstrates that non-
partisanship and a disposition towards the state are still possible
and are not at all utopian.
If the specific instruments of state power, the armed forces and
the bureaucracy, remain undisturbed, a strong state is still
conceivable. But then I would consider it unfortunate if one were
to take away the only legal instrument of coercion that is still
retained for genuine cases of emergency- article 48. The coexis-
tence of the total parties that have occupied the state can never
lead to state power, that is, to a strong state. In virtue of its orig-
inal meaning, the democratic-parliamentary system ought to
generate a state capable of acting, ruthlessly if necessary, in cases
of emergency, a state that enjoys the unified agreement and
consent of the entire people. In Germany's present-day circum-
stances this aim cannot be reached, and with conditions such as
they are it cannot be reached in the foreseeable future. On the
contrary, our type of party-state, with its plurality of total parties,
precludes any genuine power. It unites itself against any attempt
at securing a strong state and leads to a combination of impotence
and the annihilation of power. The bearers of this situation still
retain enough power to want, and to be able to, block others from
acquiring power. To me, this negative resolve not to permit the
emergence of a strong state explains the present battle against
article 48 and the attempts to destroy this last indispensable
instrument of the state.
From the side of the state, present-day conditions are in fact
more difficult. The responsibility lies not in the democratic
methods for the formation of the state will, but in the peculiari-
ties of the total party-state as they exist now in Germany. But
Germany is no longer a democratic state. A state is self-contra-
dictory, particularly a democratic state, if it no longer has the
224 APPENDIX

right to bring up its young militarily and educate them as good

soldiers. There can be no meaningful universal electoral rights
without a necessarily corresponding universal military service. In
the past this was obvious to every democrat. But this is the most
effective of all the endeavours aimed at the destruction of the
German state - the separation of electoral rights and military
duties, thus leading universal electoral rights, without the neces-
sary correction provided by universal military duties, to its most
absurd consequences. This caricature of a democratic state
determines that the democratic parliamentary methods for the
formation of the political will, possibly good under other assump-
tions, bring about an impotence that is destructive of power. One
word, at least, with respect to the inseparable connection that
exists between the question of military duty and the military
readiness of the German people. I know the both the factual and
legal difficulties of this issue, which is also unfortunately a foreign
affairs issue, but here, in the demilitarized Rhine, that is, in the
dishonoured zone, that should not remain unsaid.
What would be required, from the side of the economy, to
allow for the possibility of a strong state and a sound economy?
Here again some new distinctions should be drawn. The old nine-
teenth-century opposition, the opposition drawn by our liberal
forebears between state and free individuals, is insufficient. There
is still today a very significant domain of the singular individual
which is in essence, I believe, economic activity. But today one
can no longer oppose the state with the private individual, with
the isolated private entrepreneur. Both would instantly fall to .the
ground. In opposition to the collective image of the mo~ern state
it is necessary to insert an intermediate domain between the state
and the singular individual. I use here a distinction drawn in
recent years by young constitutional jurists. It is valuable and
useful, not for the purpose of setting up new organizations but in
order to begin with the right knowledge. We will draw a three-
fold distinction in the domain of economics and replace, with a
tripartition, the two-fold antithesis between state and free indi-
vidual economy, state and private sphere. First, the economic
sphere of the state, the sphere of genuine state privilege. Certain
activities of an economic nature belong to the state - certain
commercial entitlements are, for instance, absolutely necessary,
and in certain forms, like the postal entitlement, have always
APPENDIX 225

existed. These are legitimate state enterprises, which ought to be

clearly featured as monopolies and distinguished from the rest of
the economy. Second, in opposition to that domain, the sphere of
the free, individual entrepreneur, i.e. the sphere of pure privacy.
Third, the intermediate non-state, but still public sphere. For
decades we have endured an unfortunate conceptual confusion
that understood anything public as a state concern. This meant
that one of the greatest achievements of the German people- real
autonomous administration (Selbstverwaltung) - could not be
rightly understood anymore. 14 It is known how, in the wake of
party politicization, autonomous municipal administration has
reached a critical point. Everyone is aware of this crisis in our
autonomous administration. In the domain of economics,
however, it is necessary to set the record straight with respect to
the notion of autonomous economic administration. 'Autonom-
ous economic administration' may be an ambiguous, possibly a
misleading slogan. Like in any ambiguity, here too, under this
description, the unclear and obscure aims of every kind of party-
politician may find refuge.
What is advanced here as economic autonomous administra-
tion, and as the distinction between state and public spheres, is
completely different from the 'economic democracy' propagated a
few years back by a certain side. That economic democracy
explicitly espoused a mixture of economics and politics; it also
wanted to acquire economic power within the state by means of
political power, and subsequently increase its political power by
means of the economic power it had thus acquired. By contrast,
when I refer here to economic autonomous administration [or
economic self-management] I mean something different, some-
thing that aims at a distinction and a separation. There is an
economic sphere that belongs to the public interest and should

14 In his Verfassungslehre, Schmitt employed the notion of autonomous admin-

istration as Gneist understood it, namely administrative jurisdiction as an

honorary activity placed in the hands of wealthy and instructed citizens. Here,
however, Schmitt adopted Popitz's views. Popitz extolled the virtues of municipal
autonomous administration, which 'demands, in a practical sense, strengthened
and unified state supervision (the "companion piece of autonomous administra-
tion"). This supervision should emanate from the central state and not from the
federal states. Centralization and autonomous administration do not exclude each
other, but are mutually required' (Bentin, 1972: 20).
226 APPENDIX

not be seen as separate from it. Still, this is a non-state domain

that can be organized and administered by these same business
agents, as it happens in any genuine autonomous administration.
Today, we already gather under the insufficiently clear expression
'autonomous economic administration' a number of things:
industrial and commercial chambers, non-voluntary unions of
every sort, associations, monopolies, etc.; we have mixed
economic enterprises, where again the expression 'mixed
economies' is misused when applied to pure state socialist or state
capitalist corporations that organize themselves privately as stock
companies or companies of limited responsibility. Finally, we
have monopolies of every kind chartered in the public interest but
administered autonomously by commercial agents. A major
confusion still reigns here, which is characteristic of the present
and that we always encounter. The state appears as an economic
agent in all conceivable outfits: in public law and private law, as
state, as treasury, as majesty, as company of limited responsibil-
ity and as stockholder. The state is thus disguised and concealed,
making it absolutely necessary to refer to it in simple, solid and
non-ambiguous legal forms and methods and to ask that it appear
openly as state when 'the state' is at issue. Should it require a
commercial privilege, it should use it openly as a state privilege
and not misuse it in an unclear combination of private legal
forms.
One may already refer today to an autonomous economic
administration and to an intermediate sphere of a public but non-
state economy as an order that exists in a number of initiatives.
Naturally, those are often contradictory initiatives, and, of the
formations just mentioned, some will be good and promising,
others bad and bizarre. We are dealing here with a basic outline
that has to be considered and kept in view. Without an
autonomous economic administration, in the sense of that inter-
mediate sphere, a real new order would be hardly thinkable.

IV

If the gist of basic outline is clear, we can proceed to raise the

question: how can one today render the distinction between state
and economy effective? Increasingly one thing is evident: only a
APPENDIX 227

strong state can depoliticize, only a strong state can openly and
effectively decree that certain activities, like public transit and
radio, remain its privilege and as such ought to be administered
by it, that other activities belong to the above mentioned sphere
of self-management, and that all the rest be given to the domain
of a free economy. A state that is to bring about this new order
ought to be, as was said, extraordinarily strong. Depoliticization
is a political act in a particularly intense way. How can we
achieve a strong state that may be capable of such tour de force?
At present, it is evident that the state, today only intermittently
and momentarily a state, needs to gain particularly solid
authoritarian foundations by means of new arrangements and
institutions. In connection with this I refer to the proposals, also
mentioned in the exposition of Dr Springorum, for a new type of
second chamber, an upper house, as it is sometimes referred to, a
combination of state council, state economic council and other
elements, or for the creation of something similar. But if I have
understood the expositions of your Chair, a certain- I would not
say scepticism- reserve and a certain lack of unconditional opti-
mism was expressed, when he mentioned the problem of the
opposed interests dividing industry and agriculture. 15 It can be
very useful to bring organized interests together, to unite them in
guilds [ Gremien) for the purpose of a round-table session and
then to await the decisions of this guild. However, I would like to
remind you of the following: interests, particularly business inter-
ests, may unite or may separate. That cannot be changed.
Whoever organizes interests as such, simultaneously organizes
opposed interests and possibly increases, by means of the orga-
nizing, the intensity of the opposition. When these organized
interests come to the table, and once serious conflicts of interest
ensue- the conflicting case is precisely the case that is of interest
here, for it is obvious that we will reach agreement on irrelevant
matters - the assembly will soon dissolve into its component
parts. The danger of secession or the exodus of one group is
15 In his prefatory remarks, Springorum lamented the fact that the recent

economic crisis had pushed the different sectors of the economy apart instead of
bringing them together. He mentioned the conflicts his own sector had had with
agriculture over quota fixing in foreign trade and suggested that agriculture and
industry should have a round-table discussion on matters concerning trade policy
(1932: 10).
228 APPENDIX

constant. I remind you of the experiences that we had with the

Business Advisory Board in October 1931. One would have to
say that it broke apart too soon. I would also remind you of the
notorious experience that has been had with more or less each
and every union of various professionally (berufsstandisch) orga-
nized groups: if a unified resolution is to pass, unconditional
parity must be eliminated and the possibility of a veto or of being
outvoted must be allowed. When every professional branch has a
firm quota and its electoral weight stays forever the same, the
result is predictable; majority resolutions make no sense in those
cases. That would give majority resolutions, where a coalition of
shoemakers and bakers could outvote beekeepers; or, as was once
the case, where professional musicians were the decisive factor in
the conflict of interest case between steel and coal.
In order to avoid politicizing a most interesting consideration
concerning professional associations, and also to avoid illusions,
I would suggest that the great, and also somehow idealized,
medieval history of the professional associations (Berufsstande)
and their organization offers us the following lessons: first, these
medieval Estates (Stande) did not constitute a politically unified
will of themselves. They faced a monarch or a prince and only in
this way was the constitution of a politically unified will possi-
ble.16 Second, the Estates never passed resolutions as a collective
association of professions and never voted as separate Estates. No
Estate was outvoted by the majority of the other Estates. The
outvoting of one Estate was not possible in a system of profes-
sional associations and would be meaningless. Third, the
medieval Estates did not vote at all in the way we do. Within each
Estate our problem with the 51 per cent majority did not arise.
On the contrary, a certain unanimity arose of itself in a way that,
for corrupted human beings like us, cannot be explained without
procedural manreuvring. In any case, there is no historical basis

16 In 1938, Schmitt would praise Hobbes's strong state for overcoming 'the

anarchy of the feudal estates' and the church's right of resistance as well as the
incessant outbreak of civil war arising from those struggles' (1938: 71). He also
noted that during the nineteenth century, Hobbes's old adversaries, 'the "indirect"
powers of the church and of interest groups, reappeared . . . as modern political
parties, trade unions, social organizations ... They seized the legislative arm of
parliament ... and thought they had placed the leviathan in harness'
(p. 73).
APPENDIX 229

which would allow this whole system to function with our

methods. Our arithmetical conception of the 51 per cent major-
ity, that puts the remaining 49 per cent in the shade, was certainly
not available. However, our modern electoral ways boil down to
that. One should not disregard the difficulty of these matters in
the call for a second chamber.
The issue of a second chamber is brought forward today
primarily as a way of strengthening a state that is not strong
enough and lacks authority. A second chamber would furnish it
with the authority it requires, obtaining it from anywhere, from
authority residuals of an earlier epoch, let alone as an advance. In
my view, the sequence ought to be reversed. Only a strong state
can bestow this second chamber the respect and authority
required by its members to free themselves from professional
(standischen) allegiances, and dare to submit to a unified collec-
tive resolution in a way that externally preserves their
respectability and nobility without immediately being chased
away by their unsatisfied clients. No upper house and no second
chamber is possible without a strong state. Here, a strong state is
also the first presupposition. From it proceeds the ordering effect
that overcomes the confusion and antagonism of the diverse inter-
ests, and orders them like a magnet attracts iron filings.
Otherwise they would at best organize a pathetic duplicate of
today's Reichstag. In the history of the modern constitutions this
second chamber, i.e. the chamber that is not generated by univer-
sal ballot, has normally had until today the role of limiting and
slowing down. It ought to preserve duration and continuity in the
face of the first chamber, the unstable and revolutionary-minded
chamber generated by the universal vote of the essentially dispos-
sessed masses. Among us the first universally elected chamber is
incapable of any action. Should a new second chamber be
conceived of as a constraint and counterpoise of a first chamber
that is incapable of action, it becomes an institution that is
unclear in itself. Something that is in itself incapable of action
cannot and need not be further constrained. But should the
second chamber strengthen or replace the missing capacity to act
of the first chamber, then the latter will probably receive a new
impulse and again throw its weight around as popular represen-
tative. The second chamber will then share the destiny of the state
business council, so that the question arises whether it is good and
230 APPENDIX

convenient to lend in this manner new life to such a first chamber.

So long as the point of view of the democratic electoral system
remains decisive for legality and legitimacy, an elected chamber
will unavoidably either abrogate the second chamber or make it
into its mere shadow and reflection. These considerations should
not, as was indicated, disprove the thoughts of a second chamber,
but only interpolate cautionary restraints against hasty institu-
tions.17 I know how useful a second chamber can be, I would not
like to reject or dismiss it as an ultimate goal. However, in view
of the difficult circumstances of present-day Germany, I must turn
my attention to our immediate present and to our immediate
future as far as it may be assessed. We need, in the first place, a
strong state that is capable of acting and ready for its great tasks.
Were we to have it, we would then create new arrangements, new
institutions, new constitutions.
In my opinion now is the time, and we no longer have many
chances or much latitude for great constitutional experiments. I
would go as far as saying, if I may express my own personal
private opinion, that the German people has no professional
competence for constitutional legislation, in the present meaning
of constitutional legislation. I consider that not a fault or an in-
feriority of the German people. Mostly, we produce imitations of
French-styled or Soviet constitutions. And when we draft and
constitutionally establish new institutions, according to an orga-
nizational scheme of clever and deep kind, we probably obstruct
a clearing that ought to remain free. We have before us the
example of Weimar's improvisation. A constitution is swiftly
prepared, and then in a few minutes, when it is required, lies
ready-made on the table. But once it is there it is not easy to
discard it. It is then a source of legality. It may be that today the
German people does not need legality as much as it did in the
past, and that it also does not believe so much in legality. Do not
forget that a modern state and its bureaucracy function according
to the point of view of legality. The authorities listen only to legal
prescriptions. Legality is- as distinguished from law (Recht) in a

17 In Heinrich Muth's view, one should not read this criticism of a corporatist

second chamber, Papen's 'pet project', as a sign of a rift between Schmitt and the
regime. Schmitt's objections had to do with a long-standing and unresolved
dispute within the Catholic camp (Muth, 1971: 125).
APPENDIX 231

'pathetic' sense- the manner in which modern bureaucracies and

the modern civil service function. I speak here very soberly about
the political meaning of legality, and in this sense the notion has
still a very special value, and particularly so for the strong state.
When we now improvise a new legality and posit, next to the
current institutions of the Weimar constitution which its creators
took as no more than an emergency setting, new institutions, we
thus create new legalities and thereby new protective walls for
various interests which will immediately take refuge under the
new legal walls.
I believe therefore that it is better first not to create authority
through new institutions, so to say in anticipation. We live in a
situation that is similar, even if more acute, to the one we lived in
two years ago. The government should make use of all constitu-
tional means, but also of all constitutional means, which stand at
its disposal and that prove to be necessary in chaotic circum-
stances. It should try to establish immediate contact with the real
social forces of the people. The tasks are indeed great. In the
introductory words of the Chair, a list of those important matters
was already mentioned. The duty to labour service, to settlement,
to military exercises and to the military service for the youth, and
many other things, are such great and powerful tasks that a
government which employs those means to that end, and is able
to unite with the forces of the social self-organization of the
German people, may have the success that every decent German
recognizes. Success comes from immediate labour, from the solu-
tion of a genuine labour task. That is possible and not mere
utopia. Authority stems only from success and achievemt:nt. Not
the other way around. One should not begin with a proclamation
of authority. Nobody will be fooled by this. I must work, show
what I can do, and this possibility belongs to work. When besides
other strictly constitutional institutions, that may wish to intefere
but whose interference is to be eliminated, new methods, guilds
(Gremien) or even individual persons prove their worth, then a
new authority rises, for which, I believe, the readiness of the
German people to follow and honestly to recognize an honest
success is great. The problem of the constitutional legalization of
new institutions will not then constitute an insuperable difficulty.
This is how I envisage the road ahead. The assumption is that
work shall start immediately. Another assumption is that the vast
232 APPENDIX

and strong productivity of the German people, which in the

course of centuries of German history has always stood out in the
most astounding way, is rendered fruitful. Our own experience
during the last decades still reminds us how the capacity for
autonomous organization always proved successful: during the
war and the post-war period, during mobilization and demobil-
ization, in good and bad times. This capacity for work and for
autonomous organization does not require today the party-
political costume in which it is forced to perform in disfigured
fashion. If a decisive and ready for action government were to
retrieve this connection and immediately seize these forces, what
is necessary would then also be possible. 18 Extensive organiza-
tional plans for constitutional reform should not be given up. But
today they should be deferred. The forces are here. They are only
awaiting a call. Were they to be seized, rational distinctions
would then again be possible, particularly the distinction between
state administration, autonomous economic administration
and the individual domain of freedom. On the basis of such
distinctions, the German people would, over and above party
divisions and particularisms, gain its political unity and a strong
state.

18 According to Bendersky, this should be read as Schmitt's 'wholehearted'

support for General Schleicher's proposed national front government 'extending

from the Socialists and Catholics to the left wing of the Nazi party'. Schleicher's
project included social reform and a massive public works programme to generate
employment (Bendersky, 1983: 183). In Turner's view, Schleicher had virtually no
support among Germany's business leaders, who favoured Papen's reliance on
private enterprise. Schleicher was perceived as being 'soft on labour' and 'as a
potential quasi-socialist in military garb'. Hans Zehrer, one of his conservative
revolutionary admirers, referred to him as a 'red general' (Turner, 1985: 304-5).
Is it then conceivable that Springorum invited the wrong man to address the
Langnam11erein convention?