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The Führer Protects the Law On Adolf Hitler’s Reichstag Address, 13 July 1934 1 By State Attorney, Prof. Dr. Carl Schmitt, Berlin I. At the German jurist conference, held in Leipzig on October 3 rd 1933, the Führer spoke about state and law. He elaborated the distinction between substantial law, which is not divorced from morality and justice, and the empty legality of false neutrality. He also delineated the inner contradictions of the Weimar system, which destroyed itself through this neutral legality and thereby handed itself over to its enemies. To this he added the sentence: “This must be a warning for us.” In his speech to the Reichstag, delivered on July 13 th 1934, which was addressed to the entire German Volk, the Führer invoked yet another historical lesson. The powerful German Reich founded by Bismarck collapsed during the world war because it lacked the strength “to activate statutes pertaining to war” in the decisive moment. The civil bureaucracy, devoid of all political instincts and paralyzed by the logic of the liberal constitutional state, could not muster the courage to treat mutineers and enemies of the state properly under the law. Anyone today who were to read the report on the public plenary session held October 9 th 1917, in volume 310 of the Reichstag-Drucksachen, will be appalled, and will understand the Führer’s warning. The 1. [Eds.] See Schmitt, “Der Führer schützt das Recht,” Deutsche Juristen-Zeitung 39 (1 August 1934) 945–50; reprinted in Schmitt, Positionen und Begriffe im Kampf mit Weimar, 1923-1939 (1940) (Berlin 1994) 227-32. Translated by Clara Teresa Picker and John P. McCormick.

Carl Schmitt-Fuehrer Protects the Law

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  • The Fhrer Protects the Law

    On Adolf Hitlers Reichstag Address, 13 July 19341

    By

    State Attorney, Prof. Dr. Carl Schmitt, Berlin

    I. At the German jurist conference, held in Leipzig on October 3rd 1933, the Fhrer spoke about

    state and law. He elaborated the distinction between substantial law, which is not divorced from

    morality and justice, and the empty legality of false neutrality. He also delineated the inner

    contradictions of the Weimar system, which destroyed itself through this neutral legality and

    thereby handed itself over to its enemies. To this he added the sentence: This must be a warning

    for us.

    In his speech to the Reichstag, delivered on July 13th 1934, which was addressed to the

    entire German Volk, the Fhrer invoked yet another historical lesson. The powerful German

    Reich founded by Bismarck collapsed during the world war because it lacked the strength to

    activate statutes pertaining to war in the decisive moment. The civil bureaucracy, devoid of all

    political instincts and paralyzed by the logic of the liberal constitutional state, could not muster

    the courage to treat mutineers and enemies of the state properly under the law. Anyone today

    who were to read the report on the public plenary session held October 9th 1917, in volume 310

    of the Reichstag-Drucksachen, will be appalled, and will understand the Fhrers warning. The

    1. [Eds.] See Schmitt, Der Fhrer schtzt das Recht, Deutsche Juristen-Zeitung 39 (1 August 1934) 94550; reprinted in Schmitt, Positionen und Begriffe im Kampf mit Weimar, 1923-1939 (1940) (Berlin 1994) 227-32. Translated by Clara Teresa Picker and John P. McCormick.

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    Reichsgovernment reported that the ringleaders of the mutinying sailors were negotiating with

    members of the Reichstags affiliated with the Independent Socialist Party. [Page break in

    original, p. 945]

    The German Reichstag answered with loud indignation that one cannot curtail a partys

    constitutional right to campaign in the army, and that there was no conclusive evidence for high

    treason in this case. Well, only one year later the Independent Socialists threw this conclusive

    evidence in our face. The German Volk withstood an onslaught by the entire world with

    unprecedented bravery and with tremendous sacrifice for four years. But its political leadership

    woefully failed in the fight against the poisoning of the German Volk and the undermining of

    German law and its sense of honor. Still to this day we are atoning for the paralyses and

    hesitations of the German government during the world war.

    All moral outrage over the disgrace of such a collapse accumulated in Adolf Hitler and

    became in him the thriving force of a political act [Tat]. The experiences and warnings of the

    history of this German calamity live on in him. Most people fear the severity of such warnings

    and prefer to escape into an evasive and compensative superficiality. But the Fhrer takes

    seriously [macht Ernst] the teachings of German history. This endows him with the right and

    power to found a new state and order.

    II. The Fhrer protects the law from the worst kind of abuse when, in the moment of danger, he

    immediately creates law by virtue of his leadership [Fhrertum] as the supreme judge: In this

    hour, I was responsible for the fate of the German nation and thereby became the supreme judge

    of the German Volk. The true Fhrer is [page break in original, p. 946] always also a judge.

    Justice springs from leadership. Whoever wants to separate or even oppose justice and leadership

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    either turns the judge into a counter-leader [Gegenfhrer] or into the tool of a counter-leader, and

    thereby seeks to dismantle the state by means of the judiciary. This is an often proven method

    not only for the destruction of the state, but also for the destruction of law. It was characteristic

    of liberal legal thought, given its legal blindness, to try and convert criminal law into the grand

    charter, into the Magna Charta for the criminal (Fr. v. Liszt). In the same manner,

    constitutional law was transformed into the Magna Charta of traitors [Hoch- und

    Landesverrter]. Consequently, the judiciary becomes a machine [Zurechnungsbetrieb] to whose

    predictable and foreseeable operations the criminal has a well-earned subjective right. But, on

    this view, state and Volk are completely bound up in a supposedly all-embracing legality. In the

    case of an emergency, some liberal jurists, bowing to the factual situation, might secretly grant

    some apocryphal loopholes to the state and the people. Other such jurists, in the name of the

    constitutional state, would deny the state such latitude and declare the emergency to be legally

    nonexistent. The Fhrers claim that he acted as the supreme judge of the Volk cannot,

    however, be grasped within the framework of this kind of jurisprudence. The latter can only re-

    interpret the judicial act of the Fhrer as a measure of a state of siege that requires retroactive

    legalization and indemnity. A fundamental principle of our present constitutional law that is,

    the priority it affords political leadership would thereby be turned into a juridically irrelevant

    empty phrase, and the gratitude that the Reichstag expressed to the Fhrer on behalf of the

    German Volk would be turned into indemnity or even acquittal.

    Actually, the Fhrer's deed was an exercise of true jurisdiction. His deed is not

    subordinate to justice but itself constitutes supreme justice. It was not an action of a republican

    dictator who creates facts in a lawless space, while the law closes its eyes for a moment only so

    that the fictions of all-embracing legality can then again be grounded on the newly created facts.

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    No, the judicial power of the Fhrer originates in the same source of law from which the law of

    every Volk flows. Supreme law proves itself in the moment of ultimate distress, at which point

    appears the highest degree of judicial, vengeful realization of this law. All law originates in the

    Volks right to life [Lebensrecht]. Every public statute, every judicial sentence only contains as

    much justice as is provided by this source. The rest is not law, but merely a meshwork of

    positive mandatory norms, mocked by any clever criminal.

    III. In sharp contrast, the Fhrer emphasized the difference between his state and administration

    and the state and administration of the Weimar system: I did not want to hand over the new

    Reich to the fate of the old. What happened on January 30th was not the creation of yet another

    administration, but the elimination of an old and sick era by a new regime. When the Fhrer

    demands the liquidation of this woeful chapter of German history with such words, [page break

    in original, p. 947] this entails judicial consequences for our legal thinking, practice, and

    interpretation. We have to examine afresh our methods and reasoning, as well as the prevailing

    doctrines and decisions made by the highest courts in all fields of law. We cannot blindly adhere

    to judicial concepts, arguments, and precedents that are products of an old and sick era. Some

    statements from the conclusions of previous holdings can certainly be understood as justified

    resistance against the old system's corrupt nature. But to uphold them thoughtlessly today would

    change their meaning and transform the judiciary into an enemy of our present state.

    If, in June 1932, the Reichscourt (RGSt. 66, 368) understood judicial independence in

    terms of the courts duty to protect the citizen in his legally recognized rights from potentially

    arbitrary state power exercised by a hostile government, it advanced this doctrine from a liberal-

    individualist perspective. Judicial power is here understood to be opposed not only to head of

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    state and government, but also to the administrative body in general.2 This position is

    understandable in its historical context. Today, however, we are obliged to assert the new

    meaning of all public institutions, including the judiciary, with all decisiveness.

    At the end of the 18th century, old Hberlin linked the question of emergency law to the

    problem of differentiating between judicial affairs and government affairs. He taught that, in

    case of danger or great harm for the state, a government could declare judicial affairs to be

    government affairs. In the 19th century, Dufour, one of the fathers of French administrative law,

    defined the act of government (acte de gouvernement, which is exempt from ex-post judicial

    examination) to be oriented towards the defense of society a defense against external and

    internal, secret and open, present and future enemies. Regardless of what one may think of such

    designations, they point to a juridically significant specificity of political acts of government

    that, even in liberal constitutional states, procured legal recognition. In a Fhrerstaat, however,

    legislative, executive, and judicial branches do not distrustfully control one another.3 What is

    therefore usually legitimate for an act of government must apply, to an incomparably greater

    extent, to a deed through which the Fhrer demonstrated his highest Fhrertum and judicial

    power.

    The Fhrer himself determines the scope and content of his course of action. His address

    assured us again that the state of normal law had been restored as of the night of Sunday, July

    1st. The statute on measures of state self-defense from July 3rd 1934 (RGB1. I. S. 529) designates

    the temporal and factual scope of the Fhrer's immediate action in the form of executive

    2. See the recently published work by H. Henkel, Die Unabhngigkeit des Richters in

    ihrem neuen Sinngehalt, Hamburg 1934, S. 10 f. 3. See E.R. Hubers article, Die Einheit der Staatsgewalt, below p. 950 in this volume.

    [page break in original, p. 948]

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    legislation. Acts committed within or outside the timeframe of these three days that were not

    associated with the acts of the Fhrer, that is, special actions that were not authorized by him,

    are all the more grave injustices the higher and purer is the Fhrer's law. The declarations of

    Prussian Prime Minister Gring of July 12th and Reichstjustizminister Grtner of July 20th 19344

    demand especially strict prosecution of such special actions. Given the above mentioned

    specification of government acts and acts of the Fhrer, it should be self-evident that, in case of

    doubt, the courts possess no competence over the classification of authorized and unauthorized

    acts.

    IV. Within the timeframe of those three days, the acts of the Fhrer through which he, the leader

    of the movement, avenged the specific betrayal of him as the highest political leader by his

    Unterfhrers, acquire a special significance. The leader of the movement as such undertakes a

    specific judicial task, whose inner justice [inneres Recht] cannot be realized by anyone else. The

    Fhrer explicitly emphasized in his Reichtags speech that the National Socialist Party is the sole

    bearer of the political will. But a community that is, in such manner, arranged and composed of

    state, movement, and Volk, is also characterized by the inner right [innere Recht] of those state-

    supporting orders of life and community, which are predicated in a special way on the oath that

    declares fidelity to the Fhrer. No less than the fate of the political unity of the German Volk

    itself depends on the party's ability to fulfill its task. This enormous task, in which all danger of

    the political accumulates, cannot be carried out by any other actor, least of all by a judicially

    proceeding civil court. Here the party and the SA are on their own.5 Consequently, the Fhrer,

    4. Vlkischer Beobachter July 13th and July 22nd/23rd 1934, and Dtsch. Justiz p. 925;

    see also the survey [Rundschau] below p. 983. 5. Schmitt, Staat, Bewegung, Volk. Hamburg 1933, p. 22.

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    as political leader, here became the supreme judge in a specific way due to the specific

    qualification of the crime.

    V. The Fhrer repeatedly reminds us of the collapse in 1918. This date determines our present

    situation. In order to understand correctly the events of June 30th one must not divorce the events

    of this and the two subsequent days from the context of our general political situation. Procedural

    methods cannot empty these events of all substance by isolating and circumscribing them; they

    cannot be turned into purely legal matters as procedural methods typically do. Such methods

    can never do justice to a highly political event. But such methods have for too long, over

    previous decades, characterized attempts to poison the German public, and it has been a

    longstanding trick of propaganda hostile to Germany to portray this particular kind of

    proceduralism as the only type that is truly constitutional. In the fall of 1917, constitutionally

    confused parliamentarians, capitalists, communists, clerics and atheists alike, demanded in

    strange unity that Germany's political fate be handed over to such procedural fictions and

    distortions. [Page break in original, p. 949]

    A spiritually empty bureaucracy did not even manage to grasp emotionally the political

    meaning of such juridical demands. Some of Germanys enemies will respond with similar

    demands to Adolf Hitler's deed. They will be outraged to find that the present German state has

    the strength and will to distinguish friend from enemy. They will promise us the whole worlds

    praise and acclaim if we, as we did in 1919, fall down and sacrifice our political existence to the

    idols of liberalism. Those who recognize the overwhelming background of our general political

    situation will understand the admonitions and warnings of our Fhrer. They will arm themselves

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    for the great spiritual struggle in which we must protect our own righteous law.