The Law Under the Swastika (23 page)

The third common trait was a turn toward administrative realities, at least in the form of declared intent.
²³
The underlying need was the same that had led to the break with legal positivism. The difference was that the issue here was not to broaden the maxims of interpretation but to close the gap between norm and administrative reality. This was the real starting point of an administrative science that sought to elucidate which rules administration actually followed, what laws guided the conduct of bureaucrats and their personnel, and how decisions were made and implemented “on the spot.” However, material actually gathered from administrative praxis and available in readable form was sparse. Ernst von Harnack, a retired Regierungspräsident and a civil servant of the old school, offered such material “as a systematization of remembrances, experiences, and insights . . . put down in the form of memoirs by men in the administration.”
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Since his book did not affirm National Socialism politically, it met with virtually no response. In any case, to my knowledge no comprehensive empirical works on administration were written, aside from Harnack’s book.

Hans Peters was therefore right when he said in 1936 that it was not possible at the time to fix the date for genuine courses in administrative
studies and that a comprehensive training for administrative officials could not be accomplished at the universities.
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There was little more than a call for administrative studies to try to “look into administrative practice”
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as a way to develop scientific administrative studies. Such a field should integrate normative and empirical factors—though, as Arnold Köttgen warned, without letting this lead to the disintegration of administrative law into vague discussions about “concrete orders.”
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This shows that Köttgen, too, much like Forsthoff, fairly soon recognized the dangers that a dynamic and politicized concept of the law—even in the guise of the familiar demand for a revival of administrative studies—posed to legal security and the stability of the entire system.

III.
In the meantime there was an effort to link up with other countries in administrative studies, and here the need for professional exchange went hand in hand with the regime’s desire to be represented on the international stage. The International Institute for Administrative Studies, headquartered in Brussels, had organized a congress in Vienna in 1933. At that time “the German Reich declined to participate, for reasons that need no further explanation.”
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A German delegation was present at the subsequent congress in Warsaw in 1936 (it consisted of Ministerialrat Dr. Medicus, Professor Ritterbusch, Lord Mayor Dr. Weidemann, the President of the German League of Municipalities, Dr. Jeserich, and Ministerialdirektor Jäger for the National Socialist Lawyers’ Association). A short time later, Undersecretary Wilhelm Stuckart announced that the German Reich would join the International Institute and that “a section would be set up in Germany . . . in the near future.” As expected, Stuckart was made President of this section,
²⁹
and he succeeded in having the next congress scheduled in Berlin for September 13–19, 1939. Various activities took place in the lead-up to this congress, among them an essay contest on the topic of “the pedagogical importance of administration,” and a joint work on “contemporary foreign administrative law.”
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World War II broke out two weeks before the start of the congress.

Thereafter, international contacts were limited to states allied with the Axis powers. But contacts in the field of administrative law did not amount to much. No activities in administrative studies developed in the Academy for German Law, either under Carl Schmitt’s chairmanship in the committee for administrative law or under that of his successor, Stuckart.
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In 1942 Stuckart established an International Academy for Political and Administrative Sciences in Berlin, and Hans Frank founded an Institute for the Techniques of State in Munich before his dismissal as President of the academy and Reichsführer of
the National Socialist Lawyers.
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However, the goal of Frank’s institute was not the study of “administrative technique” in the conventional sense, but the relationships between technology and the state. These international contacts and institutes produced no visible results during the war.

IV.
In the meantime the debate over the state of administrative studies and its proper tasks had continued, becoming more vigorous in the lead-up to the 1939 congress. Peters felt provoked into a lengthy response by Nass’s article charging that administrative studies had utterly failed.
³³
He hinted that his own textbook on administrative science, long in planning, had been blocked by the National Socialist seizure of power. However, since the summer semester of 1933 he had been lecturing on administrative science, as had Kurt Jeserich and the lecturers at the academies of administration. He described his own view of the relationship among administrative law, administrative policy, and administrative studies as follows:

Administration is the activity of the state or, in certain instances, of public associations, aimed at giving concrete shape to the purposes of the state. Independent initiative and judgment are typical of administration. Law, technology, medicine, biology, psychology, and so on, are means that administration uses to attain its goals . . . The essential task of administrative science is to describe administration in all its manifestations and components, to produce a systematic order, to clarify concepts, and to show causal connections and the reasons for their existence. Administrative law as a science of norms must clarify the rules by which administration should work, investigate their foundations, and resolve existing uncertainties through interpretation. Administrative policy as a science of values must study the suitability of individual administrative institutions, especially from the perspective of the basic ideas of the relevant political systems.
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In addition to these fundamental demarcations, which reappeared later in his 1949 textbook,
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Peters outlined the chapter headings of his “Verwaltungslehre,” a book that was not published in its planned form.

Gerhard Wacke’s textbook on administrative studies suffered the same fate. It was scheduled to appear in 1941 in the Kohlhammer Verlag under the title “The Destiny and Task of Administrative Studies,” but the relevant party office refused permission to print it. And since the manuscript was destroyed, it was not possible to publish it later, either. However, various articles indicate that what Wacke had in mind was not an integration of empirical and normative work as a simple “art of administration” that would discuss the means of administration, its instruments of leadership, its organization, and questions
of personnel.
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Wacke was too much a jurist to abandon the original guiding function of the law, and he was clearly on the side of an administration that was orderly and bound by the law. His retrospective in 1942 was sobering and contained some pointed comments. He noted that the hopes in 1933 for a revival of administrative studies had not been fulfilled: “The impulse of 1933 and a few symbolic acts as well as hopeful beginnings (for instance, the work of the Institute of Communal Science at the University of Berlin) could in no way keep pace with the headlong developments in all fields of administration.”
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By emphasizing the accomplishments in the fields before 1933, he was able to criticize the present and do justice to the past.

It is striking that the discussion about the training of administrative officials and the reform of the public law component in the legal curriculum intensified precisely during the war. One impetus came from the renewed debate about the legal curriculum in 1941 as efforts were under way to separate the training of administrative lawyers
(Rechtswahrer)
from the general training of jurists.
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The controversies also reflected the general difficulties of an administration that was expanding rapidly and was embroiled in constant battles with the Nazi party and the SS. Given this background, the debate about training, documented chiefly in the 1942 issue of
Deutsche Verwaltung
,
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took on different contours than it had in 1935, for example, when the new curriculum was introduced. Those who emphasized praxis over theory were now absolutely dominant. The crucial issue was who would eventually control the separate educational track for administrative officials. Grand designs and declarations of intent had given way to careful tactical maneuvering. Language, too, reflected the generally more sober atmosphere in a time of war.

Euphoric voices were heard more rarely. When W. Taeuber wrote in 1942 that “the historical moment has now come for newly establishing—in a sense, rediscovering—administrative studies,” that jurisprudence had “finally entered onto the right path,” that the ground was “prepared for the sowing of ideas from administrative studies,” that legal positivism had been “transcended” and legal philosophy seemed “to be heading for a heyday,”
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this merely proved how much he had lost touch with reality. The hope that administrative studies could become the main subject of the political sciences, on the basis of Nicolai Hartmann’s “natural realism” and following in Stein’s footsteps, was illusory. Wacke saw this much more clearly: “There is still no development of an administrative science proper—a science that has a comprehensive understanding of the overall situation of public administration also in terms of its political importance and its transformations, and
could thus in turn provide the foundation for the future design of administration.”
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V.
Efforts after 1933 to bring about a “revival of administrative studies” had thus failed. This was reflected in the new curricula of legal studies in the fall of 1943,
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which no longer contained a course with the title “Administration.” Attempts to set up lasting and well-funded research institutes for administrative studies, to create a canon of basic knowledge, and to supply the necessary textbooks and study materials were equally unsuccessful.

However, in no way can one argue from these outcomes that attempts by the Nazis and the SS to politicize the administration had been successfully deflected, because some champions of administrative science did in fact wish to use it as a Trojan horse for precisely that purpose. Rather, the reasons for the lack of success are to be found both in the external circumstances and within the field itself.

Among external conditions we should include the shortness of time, the feverishness that was characteristic of all undertakings during the Third Reich, and war conditions that were generally unfavorable for intellectual and scholarly work. Furthermore, active support for administrative studies was taken as an indication of a person’s stance on a central question, and the readiness to provide such an indication, which could easily be misunderstood politically, waned over time. As Bodo Dennewitz rightly put it in 1944: “Administrative law or administrative science: ever since the seizure of power, this has become once again and with increasing sharpness the central problem of the science of administration.”
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In the midst of “total war” this problem could no longer be genuinely resolved, least of all in a political environment that was dominated by an activism hostile to intellectual work and in which rational structures were increasingly disintegrating.

The reasons inherent in administrative science itself included, first of all, the uncertainty and lack of consensus about the true goal of this new field. In its most modest form it was conceived as an auxiliary science for administrative law, an empirical propaedeutics and accompanying subject that would be able to fill the gap between administrative reality and administrative law with information about the praxis of administration. In its most ambitious form, administrative science opened up the “grand vista . . . of the totality of all spheres of public life.”
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In this version, once the constitutional question had been “settled,” administrative science became the central field of work of political science. While proponents of the modest form wanted to work with the simple aids of statistics and observation, advocates of the ambitious
version attempted, on the basis of a “cosmological theory of culture,” a “comprehensive view of what belongs together in life.”
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In this regard the two sides were not speaking the same language.

An important reason for the failure of the ambitious version was, of course, the fact that the philosophical foundations it called upon were all vague and irrational. Picking up the thread of Stein’s ideas meant, if seriously pursued, either the attempt to transpose a “modernized” Hegel into administrative science, or the reverse, to repackage a Stein freed from the Hegelianism of a specific time in history. Both approaches ran into fundamental difficulties.

Very different problems arose for anyone who tried to do administrative science as administrative sociology: to collect information and arrange it into rationally verifiable hypotheses. Not only had the most important representatives of empirical social research been driven out in 1933, this entire approach did not fit into the climate of National Socialism, which was anti-Enlightenment, antirational, and thus hostile to science. The political system would have been deeply suspicious of anyone who had tried to provide a meticulous account of the growing chaos.

Despite these external and internal conditions unfavorable to the development of an administrative science, a central problem remained: how could an administration that had been expanding for decades in every area, was now guided by a dictatorship, and was purpose-oriented continue to function using the instruments of the liberal
Rechtsstaat?
Since the time of Mayer, the complexion of administration, its size and tasks, had changed tremendously—so much so that none of the building blocks of a “general part” of administrative law that had been found at the time could be used unchanged. Only on the surface had the totalitarian state displaced Mayer’s liberal
Rechtsstaat
. In reality, a hybrid of state and industry, later called the “state of industrial society,” had taken its place. The foundation of this new state’s legitimation as it began to take shape in the 1920s was no longer democracy but the system of social security. The current of continuity that is visible here is also a mainstay of the Federal Republic, which is why it is no coincidence that a mere restoration of liberal administrative law after 1945 was not enough. Instead, the efforts noticeable in the writings of Forsthoff
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and Köttgen
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—to include the administration of social services, to make the element of purpose in administrative law into a systemic criterion, and to see administration as a whole as dependent on basic political and constitutional decisions—were pursued further. The proposition that administrative law is constitutional law made concrete (Fritz Werner),
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so often cited under democratic
premises, was emphatically advocated also under National Socialism: “Administration and constitution are one. Their ideological and organizational structure is identical.”
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To that extent only the contents of administrative law had changed after 1945, but not the methodological problem of administrative law and administrative science in industrial society. It therefore comes as no surprise that the difficulties inherent in creating an administrative science suited to the conditions of modern administration and translating it into the subject of study were carried over into the Federal Republic.
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