The book by István Sándor, university associate professor with habilitation, was published in the autumn of 2015. It provides a historical analysis of the Anglo-Saxon trust, together with a review of civil-law institutions that have similar functions on the basis of comparative law. It is a unique work, offering an analysis of the institution of the trust within an international context.
All posts by Gábor Hamza
Iván Siklósi, A nemlétez?, érvénytelen és hatálytalan jogügyletek elméleti és dogmatikai kérdései a római jogban és a modern jogokban, (Budapest: ELTE Eötvös Kiadó, 2014; with detailed summary in English)
I. An imposing doctoral thesis, defended in 2013, served as the basis of this elegantly produced work.
Regarding the various interpretations of the above-mentioned concepts, the author’s main purpose has been—following a brief historical analysis of the concepts of juridical act and that of the concept of contract—to clarify and to systematize the concepts of inexistence (existence), invalidity (validity), and ineffectiveness (effectiveness) of juridical acts. In addition, special scientific problems related to these concepts are treated (e.g. the applicability of the modern concept of the inexistence of contract in Roman law; the raison d’être of the dogmatical construction of contractual inexistence; the formation of the modern concepts of nullity and annulment and the applicability of these legal categories in Roman law; the problems of elimination of the causes of invalidity in Roman law as well as in its subsequent fate; the dogmatical questions of partial invalidity; the theoretical problems of the ineffectiveness of juridical acts; the dogmatic problems of the revocation of will).
II. As for the methods of the research, the quite complex choice of topic—with special regard to the Roman law research—needed the application of a complex scientific method which is dogmatical on the one hand and historical on the other. Although the dogmatic method has enjoyed priority, a kind of “mixed” methodology of dogmatical and historical approach was applied.
III. Siklósi distinguished four levels of ability for producing legal effects:
1. Inexistence—when the legal transaction is not able to produce any typical legal effect; it does not exist in the contractual sphere.
2. Invalidity—when the legal transaction exists but it is not able to produce the intended legal effects.
3. Ineffectiveness (in strict sense)—when the juridical act without any legal fault could produce the intended legal effects, but only potentially and not actually.
4. Effectiveness (in strict sense)—when the valid legal transaction is actually producing the intended legal effects.
At the first level, the “juridical act” is not able to produce any “typical” legal effects. At the fourth level, however, the existing, valid, and effective juridical act is able to produce actually and in fact is producing the “typical” and intended legal effects. This system can be regarded perhaps the most important scientific achievement of Siklósi’s research.
IV. As for the structure and content of the book, following the Introduction (Chapter I) on the topic, purpose, and methods of the book, in Chapter II the author analyses some important questions related to the concept of juridical act and contract in Roman law and in the doctrine as well in the codes both in Europe and outside Europe. The essence of the concept of juridical act—which was not elaborated by Roman jurists—was described with terms “agere”, “gerere”, and “contrahere” in Roman law. In this regard, for instance, a famous text by Ulpian (D. 50, 16, 19) has been deeply analysed. As for the formation of the modern concept of juridical act, the author emphasized that its roots can be traced back before the Pandectist legal science (see the definitions of Althusius, Nettelbladt, and Harpprecht from the earlier centuries). Regarding Roman law sources, the author focused, inter alia, on the importance of contractual form and will, on the distinction of contractus and pactum, and on the development of the concept of contract in Roman law sources, giving an overall summary of the virtually boundless literature. Following that the formation and development of modern concept of contract, the principle of contractual freedom, and the roots of pacta sunt servanda principle in canon law as well as in Dutch and French jurisprudence were treated, with also regard to the modern legal systems.
In Chapter III the author is dealing with the problems of inexistence of the contract in Roman law and in modern (contemporary) legal systems. On the basis of numerous relevant sources of Roman law (fontes iuris Romani) the author inquires whether the modern concept of inexistence of contract was applicable in Roman law, and differentiates between inexistence and invalidity. In addition, the legal consequences of the inexistence of contracts in Roman law and in its subsequent fate are also dealt with. It is worth mentioning that—contrary to invalidity—the inexistence of contract is not to be regarded as an unlawful situation. According to Siklósi’s opinion, the “inexistence” of a contract in the contractual sphere means inexistence regarding the lack of the so-called äußerer Tatbestand. This consideration could help us to distinguish between inexistence and invalidity of juridical acts, which problem was also investigated in the context of modern legal systems.
In Chapter IV—which can be considered as the central and the most elaborated part of the book—some dogmatical and terminological questions related to invalidity of contracts are investigated. In this chapter the modern (contemporary) concept of invalidity of juridical acts, its applicability to Roman law related research, the formation and development of the distinction between nullity and annulment, the disputed questions of the elimination of the causes of invalidity, and the problems of partial invalidity are treated. The terminological inconsistency and the great variety of Roman law sources concerning invalidity deeply affected the modern legal terminology in this respect. Considering the terminology of invalidity in modern legal systems the author distinguished between a “German-type” and a “French-type” terminology. As for elimination of the cause of invalidity, the legal construction of laesio enormis—which can be regarded, according to the author’s opinion, as one of the cases of annulment according to ius civile in Roman law—and then the legal constructions of convalescence and conversion of juridical acts were investigated in Roman law as well as in its subsequent fate. Finally, the dogmatical questions of partial invalidity of contracts were treated in Roman law and in its subsequent fate. According to Siklósi, partial invalidity of a juridical act can only be recognized when the contractual will and, therefore, the juridical act itself can be divided into different autonomous parts and, additionally, when it is backed by the interests of the parties.
In Chapter V the author is dealing with some theoretical, dogmatical, and terminological problems of ineffectiveness of juridical acts with special regard to the revocation of will from the point of view of legal doctrine.
Finally, in Chapter VI of the book the most important conclusions and the possible utilization of the scientific results are summarized.
V. The work is supplemented by a detailed English language summary, a list of abbreviations, a list of the most relevant sources, and a multilingual bibliography.
In our opinion, the system of concepts developed in this book can be useful for lawyers working both in theory and practice, and not only for civil lawyers but also for the experts of other legal branches (e.g. constitutional law, administrative law, law of civil procedure).
Montesquieu in Hungary
He left Paris probably on the 5th of April 1728 for Vienna, and arrived in Vienna in the first days of May. He spent a few weeks in the northern parts (today territory of Slovakia i.e. of the Slovak Republic) of the “historical Hungary” (in Hungarian: Történeti Magyarország, in French: Hongrie historique). On the 26th of June he was back in Vienna, and finally he left the (imperial) city on the 9th of July.
It is worth noting that the father of Montesquieu, decades earlier, in 1685, as the soldier (officer) of the Prince de Conti, had already traveled in Hungary.
Unfortunately, the notes of Montesquieu on his journey in Hungary did not survive, but after returning home he compiled his notes entitled Mémoires sur les Mines de Hongrie et Hartz in which we can find interesting and important data (informations) concerning the Kingdom of Hungary. We know for sure, that he visited in Pozsony – then (until 1848) the capital of Hungary – (in Slovakian: Bratislava, in German: Pressburg, in Latin: Posonium, in French: Presbourg) the National Assembly (Diet) of the Kingdom of Hungary (in Latin: Diaeta), and then Körmöcbánya (in Slovakian: Kremnica, in German: Kremnitz, in Latin: Cremnicium), Besztercebánya (in Slovakian: Banská Bystrica, in German: Neusohl, in Latin: Neosolium), and Újbánya (in Slovakian: Nová Ba?a, in German: Königsberg, in Latin: Regiomontanum), that is to say the cities of Upper Hungary (in French: Haute Hongrie, in Hungarian: Felvidék), or more precisely, some, although undoubtedly the most important ones, of them.
In the above-mentioned notes we find details like this – in English translation: “In Hungary, you need only to plant the corn in the ground and it grows. It is so, because the lands of Hungary are not under very good cultivation and there the fields rest more.” Or: “There are three greatly significant places in Hungary: Eszék (in Croatian: Osijek, in German: Esseg), which, I think, lies where the Drava and the Danube flow into each other; Belgrade (in Hungarian: Nándorfehérvár) and Temesvár (in Romanian: Timi?oara, in German: Temeschwar); Orsova (in Romanian: Or?ova) is, on the shore of the Danube, supplied constantly with artillery batteries which keep the Turks i.e. Ottomans from advancing.”
Development and Codification of Private Law in Portugal
I. Middle Ages
1. After the collapse of the Western Gothic Empire in 714, the majority of the Iberian Peninsula came under the rule of Arabs; therefore, temporarily the Roman law could not be applied. Consequently, when dealing with the effect and survival of the ius Romanum we refer to those territories of the Iberian Peninsula where Christian monarchies were established.
An evidence of the significant influence of Roman law are the Ordenações Afonsinas (also called as Ordenações do Rey Afonso V). They were approved in 1446-1447, during the reign of Afonso V (1432-1481) – who was under the tutelage of his mother, later his uncle until 1448. This five-volume work consists of several sources of law (fontes iuris Lusitani). On one hand, it consists of the laws (leges) adopted since the reign of Afonso II (1211-1223), which were influenced by the practice of the Cortes. On the other hand, it includes the customary law (ius consuetudinarium, consuetudines). The courts were obliged to apply the provisions of the Ordenações Afonsinas.
In Portugal the customs (costumes) and certain municipal statutes (statuta) included several elements (i.e. institutions, concepts and terminology) of Roman law.
The Codex Euricianus and the Portugal translation of the Siete Partidas, adopted during the reign of Alphonse the Wise (Alfonso el Sabio) were in force. The formal reception (receptio in globo or receptio in complexu) did not take place in Portugal; contrary to Spain or Germany (i.e. the Holy Roman Empire; Sacrum Romanum Imperium).
3. In Portugal the so-called common law (direito comum) – similarly to Spain and Andorra – is based on the Roman law (ius Romanum) and the Canon law (ius canonicum).
It did not weaken the authority of the Glossa ordinaria of Bartolus’ and Baldus’ commentaries that the courts could apply these compilations only in case they were in conformity with the communis opinio doctorum. A reason for this was the fact that in many cases the establishment of the rules of the communis opinion doctorum required long examination. The Ordenações Manuelinas, which were promulgated in 1521, the last year of the reign of Manuel I (1495-1521), includes similar rules.
The Ordenaç?es Filipinas (1603) provide parallel rules. It shall be noted that in this era, Portugal was under the rule of Spain. The Ordenações Filipinas were promulgated by Philip III (1598-1621), who was the king of Spain and of Portugal (as the monarch of Portugal, Philip II) in the same time.
II. Modern Times
4. The Lei da Boa Razão (para os direitos das nações polidas e civilizadas) – adopted during the reform governance of Marquis de Pombal[1] (under the reign of Joseph I [1750-1777]) – regarded Roman law (direito romano) as a subsidiary source of law, that may be applied in case it was in conformity with the boa razão (which practically indicates the natural law [direito natural]). The law adopted on 9 September, 1769 (Lei de 9 de setembre 1769), which comprehensively modified the rules governing the law of successions (direito sucessório) is worth mentioning. In this reform, the ideas of the Enlightenment played an important role (“reforma iluminista”).
5. José Homem Correia Teles (1780-1849) in his work entitled “Theoria da interpretação das leis” (1815) followed the dogmas of Jean Domat (1625-1696). His work published in 1824 interpreting the Lei da Boa Razão had significant importance. Correia Teles also played an important role in the compilation of the Portuguese Civil code. He was a member of the committee entrusted with drafting the code. Correia Teles in his influential work of three volumes (“Digesto portuguez, ou tractado dos direitos ou obrigações civis, accommodado as leis e costumes de nação portugueza para servir de subsidio ao Novo Codigo Civil”), which was published in 1835, regarded the Prussian Allgemeines Landrecht and the French Code Civil as having guiding value for the Portuguese Civil code.
However, according to views of Correia Teles, the long-established Portuguese civil jurisprudence based on the Roman law traditions should have been the basis of codification. We shall mention in this regard the textbook of Manuel António Coelho da Rocha (1793-1850) entitled Instituições de direito civil portuguez[2] in which the renowned civilist deals with and presents the traditional Portuguese civil law.
6. In the 19th century, the representatives of a movement of codification – supported by politicians, as well – suggested that the legal traditions should be abolished. A. L. Visconde de Seabra (1798–1895), follower of the School of Law of Natural Law (Escola do direito natural), who was entrusted with the codification in 1850, published his draft in 1858. Similarly to the Swiss jurisconsult Walther Munzinger (1830-1873) and Eugen Huber (1849-1923), Seabra was exclusively charged with the work of the codification. The draft (Proyecto) of Visconde de Seabra was presented to the government in 1858. After several amendments, the Portuguese Código civil came into force during the reign of Louis I (1861-1889) in 1868.
Besides the oeuvre of Visconde de Seabra – graduated in Coimbra – as legal scholar, translator of literary works and philosopher, his political activities also gained significance. He translated into Portuguese works of classical Latin authors, such as Horatius and Ovidius. Seabra also commented their works – his commentaries are of great value even in the present time. The importance of his work dealing with the philosophy of law entitled “A Propiedade. Philosophia do Direito para servir de introducção ao comentario sobre a Lei dos foraes” shall be emphasized. This work – published in 1850 – played an important role in his assignment as the compiler of the Civil code. Seabra was appointed the minister of justice and ecclesiastical matters in 1852 and 1868 for a short time. He was the president of the Portuguese Chamber of Deputies (Câmara dos Deputados) between 1862 and 1868. Seabra was also the Rector of the University of Coimbra (founded in 1290) between 1866 and 1868.
7. In the drafting of the Código civil the liberal Seabra took into account the provisions of the Prussian Allgemeines Landrecht für die preußischen Staaten related to civil law, the French Code civil and the Austrian Allgemeines Bürgerliches Gesetzbuch. Art 16 of the Código civil regards natural law (direito natural) as a subsidiary source of law (direito subsidiário).[3] In this respect, natural law is the law incorporated into the boa razâo, which is related to Roman law in several aspects. In the interpretation of the Código civil the five-volume commentary of J. Dias Ferreira (1837-1909) played an important role. Dias Ferreira interpreted the Civil code in compliance with the Roman law tradition.
8. The new Portuguese Civil code was adopted following prudent and thorough preparatory work in 1966. It came into force one year later.[4] The new civil code was influenced by the German BGB and the German civil law jurisprudence, for instance by the German doctrine of legal transactions (Rechtsgeschäftslehre). The effect of the German pandectist legal science (Pandektenwissenschaft) and the Historical School of Law (escola histórica) can be observed in the structure of the Código civil. It shall be noted that the General Part (Parte geral) of the Código civil is more extensive than the Allgemeiner Teil of the German BGB. Contrarily, the Portugal code does not provide the definition of the legal transactions. The first provision dealing with legal transactions (Art 217) only provides that expression of will may be explicit or implicit.
The committed follower of the idea of incorporating the General Part into the civil code was Professor Moreira. He established the discipline of the general part of the civil law in the University of Coimbra in 1900. In this regard, he was influenced by the German pandectist legal science.
The above-mentioned tendency concerning the general part originates from the renowned civilist, Manuel António Coelho da Rocha. Coelho da Rocha proposed even before the promulgation of the Código civil that the doctrines of the civil law should be incorporated into the code. He referred to the textbook of Ferdinand Mackeldey (1784-1834) entitled Lehrbuch des heutigen Römischen Rechts, which was translated into several languages and was known also in Portugal.[5] The structure of the Código civil currently in force and the introduction of the general part can be attributed to Moreira’s influence. However, it shall also be noted that French civil law also had a significant impact on the new civil code.
9. The commercial law in Portugal was codified in Portugal for the first time in 1833; four years later than the first Spanish commercial code had been adopted. It was the French Code de commerce that played a guiding role in the compilation of the code[6]. The work of the codification was carried out by José Ferreira Borges. With respect to the fact that in Portugal – similarly to Spain – the civil code was not put into force simultaneously with the commercial code, the Portuguese Código de comercio includes provisions of the law of obligations (direito das obrigações). Contrary to the commercial code adopted in 1888, this code of 1833 follows the concept moniste.
The second Portuguese commercial code (come into force on 1 January, 1889) was drafted by Francisco António da Veiga Beirão[7]. It shall be noted that the code of commercial corporations (Código das Sociedades Comerciais) of 1986 substantially amended the company law.
10. The Portugal civil code (which came into force in 1868) with minor amendments is still effective in the former Portuguese colonies (Goa, Damão and Diu) that were annexed by India in December 1961.[8] The provisions of the civil code of 1966 shall be applied in the former Portuguese colonies in Africa, even after their independence; in case these provisions are consistent with the constitutional order.[9] Consequently, in Angola (República de Angola), Mozambique (República de Moçambique), Cape Verde (República Cabo Verde), São Tomé and Príncipe (República Democrática de São Tomé e Príncipe) and Guinea-Bissau (República da Guiné-Bissau) the significantly amended versions of the code were adopted as national civil codes.
In Guinea-Bissau the unification of the commercial law and the company law can be observed. This progression is attained within the framework of the Organization for the Harmonization of Business Law in Africa (Organisation pour l’Harmonisation en Afrique du Droit des Affaires – OHADA
[1] Sebastião José de Carvalho e Malho (duke of Oeyras, Marquis de Pombal [1699-1782]) was appointed to Prime minister in 1756 by Joseph I. Marquis de Pombal abolished slavery in Portugal, and provided to the Brazilian original inhabitants the same rights as to the Portuguese people. He resigned in 1777, the first year of the reign of Mary I. The reforms of Marquis de Pombal, who was committed to the centralist state power and enlightened absolutism, were completely preserved.
[2] Coimbra, 1844.
[3] Art 16 of the Portuguese civil code regards the content of the principios de direito natural, conforme as circunstâncias do caso as subsidiary source of law (direito subsidiário).
[4] The preparatory works of the new Portuguese civil code began in 1940. Its legal basis was the No 33908 decreto-ley, which explicitly pointed out the defects of the civil code of 1867. The drafting of the new civil code was finished i.e. completed in 1966.
[5] Ferdinand Mackeldey was professor of Roman law in the University of Bonn, which was founded by Frederick William III of Prussia (1797-1840) on 18 October, 1818.
[6] The first Portugal commercial code (adopted in 1833) is often referred to as “Código de Ferreira Borges”.
[7] The commercial code (adopted in 1888) is often referred to in the literature as the “Código de Veiga Beirão”.
[8] Goa became a Portuguese colony in 1510. Goa was conquered by Afonso de Alburquerque. Goa became the capital of the Eastern Portuguese colonial territories. On 18-19 December, 1961, India occupied and subsequently annexed Goa, Damão and Diu. It shall be noted that on 17 August, 1962, the so-called French India (Inde Française) – Pondicherry, Kapikal, Yanaon and Mahé – became part of India in terms of international law; inasmuch as these territories were under the administration of India since 1954.
[9] Concerning the Portuguese colonial law (direito colonial) see: C.R. Gonçalves Pereira: História da administraçãon da justiça no Estado da India. Séc. XVI.I-II. Lisboa, 1964-1965.; C.E. Boxer: The Portuguese Seaborne Empire, 1515-1825. London, 1969. and idem: Portuguese Society in the Tropics. The Municipal Councils of Goa, Macao, Bahia and Luanda (1510-1800). London, 1969.
The “Third Reich” in the German Legal, Philosophical and Political Thinking
It is much less known that Adolf Hitler (1889-1945) himself was never in full support of this expression even though it proved quite effective both before and after the NSDAP (Nationalsozialistische Deutsche Arbeiterpartei) takeover.[2] A circular letter that was issued by the Ministry of People’s Education and Propaganda of the German Empire (Reichsministerium für Volksaufklärung und Propaganda) on July 10, 1939 explicitly forbade the official use of “Third Reich”. According to this circular letter Germany’s official name is from this point on “Greater German Empire” (Großdeutsches Reich).[3] It is worth pointing out that the “Greater German Empire” (Großgermanisches Reich) used by the SS cannot be considered official either.
Years later, on March 21, 1942 the Ministry of People’s Education and Propaganda issued a circular letter with provisions for the official name of the “new Germany”. It was to be called “Empire”, quite possibly modelled after the British Empire.[4] The goal of using the expression of “Empire” was to illustrate to the world that the newly acquired lands include territories annexed or occupied by Germany without any international validity, altogether ca. 841 000 sq. km.[5] The same circular letter limits the use of the expression to Germany, emphasizing that there is only one Empire and that is Germany.[6] The use of the term “Third Reich”, however, implied a serial empire which is comparable both in deeds and leaders to the empire, an idea that was entirely incompatible with the self-conscience of the imperialistic national-socialism which fancied to be looked upon as the pinnacle of German history.
In a historical sense the First Empire was established by Otto I in 962 who was crowned emperor by Pope John XII in Rome. This empire is also known as the Holy Roman Empire (Sacrum Romanum Imperium, Heiliges Römisches Reich) which existed till August 6, 1806.[7] The “Second Empire” was founded on January 18, 1871 in Versailles after the Franco–Prussian War and remained the most influential political and military power in Europe until its dissolution in November 1918. In a sense the Weimar Republic can be considered an “intermezzo” (Zwischenreich) between the “Second Empire” and the “Third Empire”.[8]
Following the Christian doctrine of Trinitarianism the three empires can be thought of in a religious and messianic way as follows: the “First Empire” is related to the Father, the “Second Empire” to the Son, while the “Third Empire” to the Holy Spirit. According to such an interpretation the “Third Empire” would constitute the zenith of history and the perfect symbiosis between the real and ideal, satisfying the prophetic requirement of Ibsen and Lessing[9] that the contradiction between Christianity and Antiquity be dissolved. This “Third Empire” would follow a distorted era of Christianity that would be realized by the arrival of a new Messiah.
It is furthermore worth mentioning that in Ernst Krieck’s (1882-1947) Die deutsche Staatsidee (1917) the “Third Empire” appears not as a historical or political, but rather as a moral idea. Ernst Krieck alludes to Johann Gottlieb Fichte (1762-1814), the author of Reden an die deutsche Nation, a work that was highly influential in the latter’s era. Also, by 1919, Dietrich Eckart (1868-1923) uses the “Third Empire” with a clearly political and nationalistic content.[10]
Ernst Fraenkel (1898-1975) a lawyer who immigrated after the National Socialist takeover, quite rightly uses the term Doppelstaat (“Dual State”) to describe the autocratic national-socialist system, emphasizing the double nature of the national-socialist political rule. To insure the normal functioning of the economy an abstract Normenstaat is in effect in the areas of civil, trade, corporate and tax law. On the other hand only professional experience i.e. personal knowledge plays a part in securing political power (Maßnahmenstaat).[11]
In the preface of his work Arthur Moeller van den Bruck (1876-1925) emphasizes that the notion of the “Third Empire” is ideological (Weltanschauungsgedanke), hence it rises above reality. Moeller van den Bruck’s work quickly becomes widely known in Germany and has a large influence on the thinking of the young intellectual class with nationalistic feelings.[12] The disappointment felt after the very harsh political and economic terms of the Peace Treaty of Versailles that was imposed on Germany after the First World War undoubtedly helped shape the thinking of this class. The same work only very slowly becomes known outside of Germany.
The Solingen-born author, who came partly from a traditional Prussian military family, was greatly influenced by the philosophy of Nietzsche. His affinity to the Pan-German ideas is also quite strong. He is rather well acquainted with the most influential European countries, since he visited England, France, Austria, Italy and Russia between the turn of the century and the outbreak of the First World War. He was never really concerned about the unique ethnic problems of the Austro-Hungarian Monarchy. With the exception of the Dual Monarchy and Germany, he vehemently criticizes the major Western European powers, especially their political system and structure. To him the ideal “power” is Germany, his homeland, without which – according to him – no stability can or will ever exist in Europe.
Moeller van den Bruck is convinced that Germany is predestined to lead Europe for the historical ties it has with the Holy Roman Empire (Sacrum Romanum Imperium). He states that in its history the Holy Roman Empire was never able to amalgamate itself into a real political community (politische Gemeinschaft). The Holy Roman Empire is, in his view, almost exclusively dominated by the notion of territoriality (territorialitas), the result of which is centurial territorial dismemberment. This limits the development of German ethnic identity. The birth of the “Second-Empire” – despite the given of political unity – failed to change this situation. The state further remains autocratic and is viewed as a “foreign body” by its citizens.
As a truly conservative philosopher, he feels deep antipathy for Western democracies, primarily towards France and England. He introduces the democratic system of these countries in an ironic, belittling way. According to him, it is only a fiction that the nation (natio) is made up of formally equal individuals. Consistently, Moeller van den Bruck condemns Weimar Germany too, in which all political views are superficial and not reflective of what he believes actual society to be like. He strongly criticizes the Weimar constitution of 1919 as well, since in his opinion it is unable to provide a united Germany with an acceptable constitutional framework. Only with the elimination of its pseudo-values can Germany fulfil its mission of reviving Europe; something it is obligated to do with its rich ties to the Holy Roman Empire. It is the duty of the young generation to revitalize the dormant German intellectuals. They have to intuitively oppose and revolt against the deceiving values. Only as a result of such a “revolution” can the “Third Empire” come into existence.
The birth of the Third Empire, however, automatically assumes the territorial unification of the German ethnic group, which implies the termination of the system of the Treaty of Versailles. The substantial growth of the German population can provide the nation with the necessary strength to attain its goal.
It is quite interesting from the viewpoint of the “Third Reich” to briefly analyze the Article 61 of the Weimar Constitution. According to this article German-Austria after joining Germany receives proportional representation in the Imperial Council (Reichsrat). Even till the accession German-Austria (Deutsch-Österreich) is endowed with the right of consultation (later Germany was forced to declare the passage void). According to Article 80 of the Treaty of Versailles, Germany binds itself to acknowledging and respecting the independence of Austria. Austria’s independence is inviolable. Only with the consent of the League of Nations (Völkerbund) can the status of Austria be modified. This condition, however, led the peace conference to the inclusion of article 88 in the text of the third draft of the peace treaty signed with Austria on September 2, 1919. According to this article Austria’s independence is inviolable and is always dependant on the consent of the League of Nations. This article of the treaty is in unison with the decree that Austria must make a commitment to refrain from any action that could directly or indirectly threaten its independence.
It must be emphasized that this section opens the floor to a very wide range of interpretations. The expression “Jesuit section” used by John Maynard Keynes is quite telling of this section.[13] It was viewed positively by the followers of Pan-Germanism, since it left the door open for the unification with Germany (Anschluß) through a rather peculiar interpretation.
The emphasis of Moeller van den Bruck’s philosophy is on social or more specifically nationalistic demagogy. According to Moeller van den Bruck the integration of the peripheral classes into society and the German nation would be the solution to serious differences within the society of the Weimar Republic. Closely related to this idea, of course, is the goal of developing a national identity as soon as and as efficiently as possible. All this is a kind of anti-capitalist reaction and a significant contribution to the conservative and heterogeneous trend of both the conservative and the popular revolutions. The author of Das dritte Reich is an active supporter of only the first one.
Moeller van den Bruck’s idea of a “perfect” empire had already been present in Lessing’s and Ibsen’s thoughts concerning the “Third Reich”, but was influenced primarily by Gerhard von Mutius’ (1872-1934) value-ideal worldview.[14] Despite the rejection of modern liberalist ideals and the formulation of a plan for a “new European order”, the leaders of Germany’s political and ideological life refused to accept Moeller van den Bruck’s idea of the “Third Empire” that was originally trademarked by idealistic rather than politically relevant thoughts. This general hostility was further reinforced by the publication of a strong critique of Moeller van den Bruck’s views in 1939. Still, the ideas of the conservative intellectual philosopher are especially popular with the conservative German “national” intellectuals.[15] During the Great Depression of the early 30’s Moeller van den Bruck is often cited by many adherents of this group. It may also be worth mentioning that the expression “Prussian style” (Preußischer Stil) comes from Moeller van den Bruck.
Followers of the idea of conservative revolution are the writers, historians, economists, and lawyers who had close ties with the Die Tat cultural journal published by Ernst Horneffer (1871-1954) in Jena between 1909 and 1939. A majority of these people consider themselves to be the intellectual successor of Horneffer in some way.[16] After Horneffer, Eugen Diederichs (1867-1930) takes over as the magazine’s editor. During Diederich’s editorial years the paper gains a more religious, social and cultural political appearance. From April 1913 the sub-title of Die Tat becomes “Social-religiöse Monatschrift für deutsche Kultur”, well reflecting the changes in ideology of the paper. During the First World War the paper is out of print. In 1921 the sub-title of Die Tat is changed by Diederichs to “Monatschrift für die Zukunft deutscher Kultur”, implying a change in style once again. The goal of the paper is changing Germany’s political and cultural life.[17] The articles published in the Die Tat welcome the fall of the empire and follow a new socio-religious aristocratic thinking. Diederichs provides space for both the national-socialists and the liberals.[18] The “community of people” (Volksgemeinschaft) wishes to bring a halt to the social and political decline of the bourgeoisie through the simultaneous creation of a national-socialist and authoritarian state. He furthermore demands a “revolution from the top” (Revolution von oben).
It is necessary to mention Eugen Rosenstock (1888-1973) who further developed the ideas of Diederichs. His work on the European revolutions, published in the early 1930’s was quite influential. The same can be said about economist Ferdinand Fried (1898-1967), who used empirical research to demonstrate the serious crisis of capitalist production in his main work, eloquently entitled Ende des Kapitalismus (Jena, 1931). According to Rosenstock, the solution to this problem is an authoritarian economic system. He is further disturbed by the gradual impoverishment of the middle-class, and the drastic strengthening of a rather small elite in the political and cultural life of Germany. This evermore powerful group barely constitutes one-tenth percent of a 60 million large Germany, yet it seems to create an unbridgeable gap between itself and the rest of society. He believes that the only solution to this problem is not only economic expansion, but also a substantial increase in exports. In order to achieve this Germany needs to become self-sufficient economically and must switch to an authoritarian system politically.
Carl Schmitt (1888-1985), a renowned professor of law and the author of the well-known work Der Hüter der Verfassung (1931) was also a person with close ties to the Die Tat. In this greatly influential work, through closely studying the Weimar Republic, he reaches the conclusion that in historic dimensions the state becomes “overpowering”, directly leading to the rise of a totalitarian state. In many respects Carl Schmitt’s Gegenspieler is Hermann Ignatz Heller (1891-1933) who quite appropriately writes that “the need for a strong person is the bourgeoisie’s way of expressing its desperation. Through the strengthening of the working masses they feel that not only they own political and economic interests, but also the entire European culture is threatened… The only thing left for the desperate bourgeoisie is to place all their faith into a strong person.”[19]
Heller, who becomes a full professor of public law at Frankfurt am Main University in 1932, is a committed supporter of the Weimar Republic. The fact that in the same year he was the legal representative of the faction of the social democrats of the Prussian provincial diet in the so-called Preußenschlagverfahren seems to only reinforce this fact. It must be pointed out that Heller thinks that the modern state and its era are entirely incompatible with the class-stratification. As he indicated in his rather fragmented work, Staatslehre which was published after his early death, a modern state is both a social and democratic constitutional state, which by definition excludes the possibility of a strong person-led authoritarian state.[20]
Certainly worth mentioning is Hans Zehrer (1899-1966), who became the editor of the Die Tat in October 1929.[21] He is regarded as a supporter of the “conservative revolution” and the opponent of parliamentary democracy. After World War II Zehrer becomes the editor-in-chief of the Die Welt, and modifies the sub-title (“Monatsschrift zur Gestaltung neuer Wirklichkeit”) established by his predecessor Adam Kuckhoff (1888-1943). In 1932 he adds the adjective “independent” (unabhängig) to the original subtitle. The Die Tat becomes the intellectual interpretative forum for national-socialist ideas although keeping a distance of from Hitler and underestimating the dangerousness of the NSDAP. As the solution to the instable political and economic system of the Weimar Republic, Zehrer envisioned a new system, the “Third Reich”, as a fundamentally different, religion based corporate political system. This new system, which is in essence a 20th century version of Luther’s directorate, would be led by a new elite with “folk roots”. In Zehrer’s opinion only a return to the Lutheran Reformation can stop both communism and national-socialism from fulfilling their ultimate goal of establishing an authoritarian system. In accordance with Zehrer’s interpretation the “Third Reich” would have an eschatological political structure that had its foundations in the Reformation.
The intellectuals of the Die Tat, especially Giselher Wirsing (1907-1975), the person who becomes the editor of the review after the Nazi takeover in 1933, concentrate on Germany’s relations with Central Europe. Starting 1934-5 Wirsing shortens the review sub-title to “Unabhängige Monatsschrift”. This is “confirmed” or seems to be confirmed by the unique, yet already true fact that the “transformation of reality” has already taken place. From 1936 the word “independent” disappears and only “Deutsche Monatsschrift” appears on the cover of the paper. In March 1939 the publication of the Die Tat comes to an end by merging with the Das XX. Jahrhundert magazine. Despite the political, ideological changes it has gone through the years the Die Tat becomes very popular in Germany, especially during Zehrer’s editorial years. The circulation of the paper reaches a yet unprecedented 30 000 copies. In addition Tat-clubs (Tat-Kreise) are born all throughout Germany, forming intellectual debate forums. According to Wirsing, Germany’s future is primarily influenced by South-eastern Europe (Südost-Europa). He is convinced that the goal of Germany’s enemies or perceived enemies is to encircle the country. It is for this reason that Germany needs to establish a closed national “living-space” (Lebensraum). He is convinced that self-sufficient German economy should open towards South-eastern Europe instead of the increasingly hostile financial world. At the same time Wirsing, similarly to most of his colleagues of the Die Tat, does not wish to continue or renew the old policy of annexation. Wirsing essentially revives the Mitteleuropa-Plan (1848-50) which states that Germany’s expansion should be directed towards Central Europe instead of the West. This latter option has been limited, anyway, by the Locarno Treaty in 1925. The ultimate goal of the expansion is to establish the so-called Großwirtschaftsraum (Greater Economic Space). The Mitteleuropa-Plan is generally associated with Friedrich Naumann (1860-1919); however, it was the Prussian-born Karl von Bruck (representative of Trieste in 1848 in the Viennese Parliament and financial minister of Austria between 1855 and 1859) who first developed the financial aspect of the plan.[22]
Moeller van den Bruck was the intellectual centre for the other group of intellectuals who sympathized with the idea of a “conservative revolution”. These people were united under the Berlin-based Juni-Club and were led by Moeller van den Bruck’s friend Heinrich von Gleichen. There is a close relationship between the Juni-Club, organized around figures of Moeller van den Bruck, Heinrich von Gleichen and Martin Spahn from Berlin and the Deutscher Hochschulring (DHR), an organization established and actively participating at most German universities after World War I.[23] The Ring-Bewegung is primarily characterized by conservatism, a nationalistic attitude and – due to disorientation – a trend-seeking at the beginning. The ties are particularly strong in Berlin which is illustrated by the fact that the centres of the Hochschulring are in the headquarters of the Juni-Club. The Juni-Club is rather active in Berlin, in particular it exhibits educational activities of political nature. In November 1922 Martin Spahn, one of the leading figures of the Juni-Club establishes a “Political Collegium”, where he regularly organizes lectures. From 1923 the Collegium’s name changes to “Hochschule für nationale Politik”, where he holds “private university” classes. These classes are visited primarily by youth who sympathize with nationalist ideals, such as Werner Best, a lawyer and one of the most well-known national-socialists having a law degree.[24]
A prominent member of the Juni-Club is Edgar Jung (1894-1934). The Austrian economist, philosopher and sociologist, through the influence of Othmar Spann (1878-1950), propagates the rebirth and revival of the Holy Roman Empire of the German Nation.[25] This view is quite similar to Moeller van den Bruck’s call for the establishment of the “Third Reich”, since both of them reach back to the Holy Roman Empire for ideological support. Without going into an extensive analysis of the question, it must be pointed out that the linking of the Holy Roman Empire with the Germans as an ethnic group is entirely unhistorical.
Even based on this brief summary it can be ascertained that the idea of the “Third Reich” dates back a long time. In traces it is already present in Fichte’s philosophy. The idea of the “Third Reich” has quite an influence on the thinking of the conservative cultural philosophers, primarily Arthur Moeller van den Bruck. It is also present in the works of the era’s most influential literary, political and economic scholars. However, not even the often eschatological “Third Reich” is a uniformly interpreted idea. For political and philosophical reasons the national-socialist regime isolates itself from the idea of “Third Reich” already by the end of the 1930s. The “conservative revolutionary” branch of the Deutsche Bewegung (“German Movement”) – including all branches of the “conservative revolution” – becomes then unacceptable as an ideological base for the national-socialist rulers.
The “völkisch” branch of the Deutsche Bewegung is an entirely different matter. This latter one cannot be considered a uniform movement either, since it includes the Schwarze Front trend that later comes into conflict with the national-socialist ideals and the Landvolkbewegung,[26] a movement unfolding at the end of the 1920s in Schleswig-Holstein and one that wobbles between anarchy and corporatism as well. Of all these different movements, it is the Führerprinzip (“the leader’s principle”), espoused by Hans F. K. Günter (1891-1968), Richard Walter Darré (1895-1953) and Alfred Rosenberg (1893-1946), which becomes the official ideology of national-socialist Germany, in which the idea of the “Third Reich” no longer plays a role.
[1] An earlier version of this essay was published in Acta Juridica Hungarica 42(1-2), 2001, pp. 91-101.
[2] During Hitler’s official visit to Italy in May 1938, the German press repeatedly referred to the Holy Roman Empire of the German nation (Heiliges Römisches Reich Deutscher Nation). See V. Klemperer: LTI. La langue du IIIe Reich, Paris, 1996. p. 158 (In German original: LTI – Notizbuch eines Philologen. Leipzig, 1975.)
[3] In contemporary German legal textbooks the term “Greater German Empire” (Großdeutsches Reich) was used instead of Germany. See E.R. Huber: Verfassungsrecht des Großdeutschen Reiches, Hamburg, 1939.
[4] It is noteworthy that the name of the weekly paper released by Germany for foreign countries between 1940 and 1945 was Das Reich. This paper of the Nazi Germany contained a wide range of political, historical and literary information and was in print even in April 1945.
[5] According to a German official statement the territory of Germany in 1942 without Elsace, Lorraine, Luxembourg, the Czech-Moravian Protectorate (Reichsprotektorat Böhmen und Mähren) and Poland (the total size of these lands was 160 000 sq. km) was 681 000 sq. km. Previous to the Peace Treaty of Versailles the size of the “Second Reich” (which is often called “altes Reich”) was 540 000 sq. km. This substantial change is primarily due to the annexation of Austria (Anschluß), the Czech-Moravian regions following the Munich Agreement and the Polish regions (e. g. Warthegau) after the beginning of World War II. After the creation of the “Social Republic of Salò” (Repubblica Sociale di Salò) a part of Northern Italy, the so-called “Voralpenland” which includes Southern Tirol and the coastline of the Adriatic (“Adriatisches Küstenland”), became part of Germany. It is, however, difficult to decide whether these territorial acquisitions, from a legal viewpoint, were occupied or annexed.
[6] In legal terminology, primarily in administration, one comes across the euphemistic expression “Verreichlichung” quite often.
[7] For the international legal status of the Holy Roman Empire see F. Berber: Internationale Aspekte des Heiligen Römischen Reiches. In: Festschrift für Th. Maunz zum 80. Geburtstag, München, 1981, pp. 17-25. Regarding the relationship between the idea of the renovatio imperii and the Holy Roman Empire see Földi A. – Hamza G.: The History and Institutes of Roman Law, 5th revised and enlarged edition, Budapest, 2000, p. 114.
[8] For the most recent literature see R. Dufraisse: Le Troisième Reich. In: Les empires occidentaux de Rome à Berlin. Sous la direction de J. Tulard, Paris, 1997, p. 449.
[9] In his work “L’education du genre humain” (p. 86) Gotthold Ephraim Lessing foretells the “new eternal Gospel”, which means the “third era” (p. 90).
[10] It is worth pointing out that the title of Stefan George’s (1868-1933) work is “Das neue Reich” in which the expression “völkisch” occurs.
[11] See: E. Fraenkel: The Dual State, New York, 1941. (reprint: 1969). This work only appears in German translation in 1974 (Der Doppelstaat, Frankfurt am Main–Köln). For Ernst Fraenkel’s view of the state see: A. v. Brünneck: Ernst Fraenkel (1898-1975), Soziale Gerechtigkeit und pluralistische Demokratie. In: Streitbare Juristen, Eine andere Tradition, Baden-Baden, 1988, pp. 415-425.
[12] In the 3rd edition of Das dritte Reich (1931) Hans Schwarz emphasizes that national-socialism accepts the name “Third Reich” and named the federation’s paper “Oberland” based on the title of Moeller van den Bruck’s work.
[13] The decision, formulated by the Supreme Council on December 16, 1919 deals with the interpretation of the mentioned article. It was sent to Chancellor Karl Renner on the same day with a lettre d’envoi, that included the Allied Powers’ guarantee for the territorial integrity of Austria.
[14] See G. von Mutius: Die drei Reiche, Berlin, 1920, p. 226. Von Mutius writes: “One who frees himself of his own self stands in the Third Reich.” (Wer sich von seinem Selbst geschieden hat, der steht im dritten Reich.)
[15] Carlo Schmid writes in his memoirs, that in the 1930’s the members of Tübingen Wiking-Bund, a nationalistic student group, read the works of Moeller van den Bruck. See C. Schmid: Erinnerungen, Bern–München, 1979, p. 143.
[16] Essays and critiques are published in the Die Tat by distinguished writers and philosophers such as Hermann Bahr (1863-1934), Paul Ernst (1866-1933) and George Simmel (1858-1918).
[17] According to Diederichs the current leading bourgeoisie (bisher geistige Schicht des Bürgertums) cannot be the carrier of culture in the future. (Träger der Kultur nicht walten kann). See: E. Diederichs: Die neue „Tat”. In: Die Tat, Heft 7, October 1929, p. 481.
[18] K. Fritsche: Politische Romantik und Gegenrevolution. Fluchtwege in der Kriese der bürgerlichen Gesellschaft: Das Beispiel des „Tat”-Krises, Frankfurt am Main, 1976, p. 45.
[19] Hermann Heller writes: “Von grosser Wichtigkeit ist es, dass neufeudale Kraftpose und den Schrei nach dem starken Mann als den Ausdruck einer Verzweiflungsstimmung des Bürgers zu erkennen. Erschreckt durch das Avancieren der Arbeitermassen, glaubt er nicht nur seine eigenen politischen und ökonomischen Herrschaftsansprüche bedroht, sondern sieht zugleich das Ende der gesamten europäischen Kultur nahe. […] Begreiflich, dass diesem verzweifelten Bürger nur die Hoffnung auf den starken Mann übrig bleibt.” See H. I. Heller: Rechtsstaat oder Diktatur? Tübingen, 1930, pp. 17-18.
[20] For the importance of Heller’s view of the social state with respect to the German constitutional thinking see: Staatslehre in der Weimarer Republik. Hermann Heller zu ehren, Hrsg. von Ch. Müller und I. Staff, Köln, 1985.
[21] Adam Kuckhoff takes over the editing of the Die Tat from Diederichs in April 1928. Kuckhoff only works at the journal for one year. In August 1943 he gets executed by the Nazis as a member of the “Rote Kapelle”.
[22] It must be mentioned that Constantin Frantz, a political opponent of Bismarck, feels nostalgic towards the Holy Roman Empire. According to Frantz the three “Germanies” (Prussia, Austria, and the “third Germany”), which include the South and Central German states, may provide the real defence against the French and Russian expansion. Frantz’s idea is anti-Nazi and was rather popular in German circles outside of Germany. See: F. Genton: L’Europe Centrale, une idée d’Europe, Dijon, 1997, p. 362.
[23] At some universities the name of the Deutscher Hochschulring is Hochschulring Deutscher Art (HDA).
[24] See: U. Herbert: Best. Biographische Studien über Radikalismus, Weltanschauung und Vernunft. 1903-1989, 2. durchg. Aufl. Bonn, 1996, p. 55.
[25] In contrast with Adam Smith and David Ricardo’s liberal economics Othmar Spann, the founder of social economics and universalism in philosophy, develops a new view for studying the so-called Ganzheitslehre. In his opinion the construction of a “real state” (wahrer Staat) assumes the new, profession based establishment of the economy and the state (Ständestaat auf berufsständiger Grundlage). Through opposing the various trends of liberalism and Marxism Spann exerts great influence on the conservative Austrian thinkers. Following the Anschluß Spann was stripped of his professorship in Vienna. Thereafter he took an active part in the formulation of the so-called Korneuburger Eid, an oath of the Austrofascist Heimwehr.
[26] Here we point out that the trend represented by Ernst Niekisch (1889-1967) is part of the Deutsche Bewegung’s “völkisch” revolutionary branch. Ernst Niekisch is also one of Moeller van den Bruck’s students.