The Law Under the Swastika (22 page)

SEVEN
The “Revival of Administrative Studies”
(Verwaltungslehre)
under National Socialism

I.
Complaints about the insignificance of administrative studies have accompanied virtually every step in the development of administrative law in Germany during the past century. In fact, Lorenz von Stein found no one to carry on his effort to arrest the disintegration of the political sciences with the help of a concept of administrative studies that was grounded in philosophy. Stein claimed to be dealing simultaneously with the totality of administration: its practical work and the legal form peculiar to it, its subordination to the constitution, and its society-shaping activity. Stein’s modernism notwithstanding, this claim struck proponents of positivism as overblown and old-fashioned because of its ties to Hegel’s philosophy, which had been declared “outmoded.” To be sure, given Stein’s standing in Vienna, his work had some influence in Austria,
¹
where Karl-Theodor von Inama-Sternegg and Ludwig Gumplowicz taught administrative studies.
²
Still, Ferdinand Schmid was right when he said in 1909 that administrative studies had practically disappeared from German universities.
³

Administrative studies saw itself supplanted by administrative law, which, from the time of Otto Mayer, was committed to the “legal method”
⁴
and which also began to assert itself at the universities from the 1880s on. The science of administration
(Polizeiwissenschaft)
had been given up: Its economic elements flowed into the disciplines of economics and finance, its social elements into statistics and social policy. As for the training of jurists, all that was left of administration was the “purely legal element.” This was not an expression of, say, the intellectual obtuseness of the positivism of administrative law, as was occasionally argued later on; rather, it corresponded to the constitutional situation. The contents and purposes of administrative activity did not seem to pose much of a problem. What was of political and pedagogical interest was the legal form and the legal protection of the
individual it provided. Administrative praxis and routine were learned in administration itself. Various attempts at reviving administrative studies
⁵
could not change the fact that it had “gone missing”
⁶
from university studies and scholarly literature before World War I. Attempts to find a place for administrative studies outside law faculties or to create research establishments for it outside the universities came to nothing.
⁷
Walter Jellinek saw administrative studies “at a dead end”;
⁸
Walter Norden considered it a “violet blooming in secret.”
⁹

As negative as this picture of administrative studies might have appeared to contemporaries, it is important to understand what their gloomy assessments were referring to. In the first place they were talking about “administrative studies” in the curriculum of legal education, about the creation of suitable teaching materials, and corresponding material support for research. If one focused on these points, there were indeed few successes. But this was not the entire picture. Administrative studies had run into considerable turbulence after World War I. It was imperative to take note of the changes that had occurred. Empirical questions thrust themselves to the fore. Administration was rife with political tensions, something traditional civil servants sensed with indignation and irritation. Questions of administrative reform had to be resolved. Industrialization was proceeding apace, and with it the social issues and the problems of maintaining local government become more acute. Political crises, inflation, and unemployment jolted the republic.

It is true that the science of administrative law neither reacted to these challenges in its textbooks nor responded by creating a field of administrative studies. However, it did address the political and empirical problems in numerous monographs.
¹⁰
And it was much less traditionalist than the textbooks would suggest when it came to judges working outside the courts and engaging in teaching.

In the spring of 1933, shortly after the National Socialists had seized power, Norden published a short work with the title
Was bedeutet und wozu studiert man Verwaltungswissenschaft?
(What is administrative studies and what is the purpose of studying it?).
¹¹
It was the culmination of efforts to “revive” administrative studies during the Weimar period and made a few half-hearted attempts to recommend the subject warmly to the new rulers. Norden tried to work out the independent task of an administrative theory of political science and to demarcate it from the former subdisciplines of
Polizeiwissenschaft
(economics, finance, statistics, social policy, political science). His goal was to find a place for it outside the law schools and within the general field of political science as an autonomous and “systematic empirical science”
(Seins-Wissenschaft)
of administration. However, this work was neither a textbook nor an electrifying platform. It was the voice of an academic outsider and was drowned out by the tumult of the “national revolution.” Before the year 1933 was over, Norden felt compelled to emigrate to Switzerland.

II.
“The revival of healthy administrative studies is consistent with the political ideas of the new state.”
¹²
This was the leitmotif of the first efforts after 1933 to pursue the implications of the so-called national revolution in the sphere of administrative law. Impulses from a variety of directions were behind the many calls in legal journals to make a fresh start, to “overcome” positivism, to restore the unity of theory and practice, and to recognize that the dogma of an apolitical administration was a form of ideology. To begin with, discomfort with the purely legal methodology of administrative law had been building up for quite some time, as early as the decade before World War I. There were repeated warnings that the historical foundations had to be taken into consideration, that thinking should reflect the administration’s dependency on politics and the constitution, and that administrative reality should not be forgotten when formulating theoretical foundations. This unease grew stronger during the years of the Weimar Republic, because the gap between the basic theoretical principles imparted by administrative studies and administrative reality had widened. The war economy had created a host of public enterprises, and the state and the economy continued to cooperate after the war; a public commercial law was created. The services provided by the state continued to expand. A wave of incorporations beginning in 1920 created larger communal entities. Social legislation broadened during the first years of the republic (welfare, youth welfare, protection of children and young people, miners’ insurance, unemployment insurance). The new discipline of labor law developed without regard for the conventional boundaries between civil law and public law. Ernst Forsthoff was right when he noted that the state, “by reorganizing the large banks; regulating the labor market, imports, and exports; acquiring foreign currency; providing countless subsidies; and taking individual measures and supportive actions, has entered as a participant directly into production and the turnover of goods. As a result, plant closings and a rise or decline in jobs can no longer be considered only a private piece of good luck or misfortune.”
¹³

In view of all this, it comes as no surprise that in 1933 many were hoping to resolve at a single stroke the problems in the training of jurists that had been created by these upheavals. The retrenchment of
studies in positivist administrative law seemed to create room for the long overdue admission of administrative reality into the classroom.

A second—and, in the final analysis, politically stronger—motive was the hope that this would make it possible to bring administrative science more quickly and effectively into line with National Socialism. Many believed that opposing “liberal” (“bloodless,” “ossified,” “dead,” “reactionary”) administrative law with an administrative science as the theory of an active, creative, and political administration would furnish an instrument to oust outdated content in courses on administrative law and incorrigible dogmatists of traditional administrative law. From this perspective, administrative studies was the vehicle of National Socialist ideology within the field of administrative law.

Curriculum reform was also pursued along these lines. Its most visible result was changing the name of the fourth-semester course “Administrative Law” into “Administration.”
¹⁴
The deletion of the word
law
was of considerable symbolic significance: It indicated that a liberal line committed to the legal protection of the individual had been deliberately broken. The change was to remind professors that their primary topics were not law and legal protection, but the purposes and instruments of an administration that was duty-bound to the new state.

However, it is possible that this renaming obstructed the formulation of an independent science of administration. Those professors who were not inclined to make major changes to begin with seemed to believe that the essential step had been taken by this change in name. Shielded by the new title, they could continue to present traditional administrative law. It no longer appeared necessary to offer separate courses in administrative studies alongside this course. To those professors who took the renaming seriously, and who included the new name in the titles of their textbooks,
¹⁵
curriculum reform offered an opportunity to become more open to administrative reality, to embrace the purposes of administration, and consequently to deal only secondarily with questions of legal forms and legal protection.

Given this starting position, it becomes clear why the effort to determine the relationship between administrative law and administrative studies was a political question on which those involved in the debate did not show their cards openly. Someone who clung to administrative law as the central subject matter could be an “incorrigible” in the Nazi sense, an administrative jurist of the older generation. However, he could also be a conservative loyal to the new regime, who adhered to the ideal of the “national
Rechtsstaat
” and sought to defend this state against “encroachments” and “arbitrary acts” on the part of the party. A similar motivational split existed among the proponents of an integration
of administration and administrative law, who in turn could not entirely agree among themselves upon the proper path to take: an “integrated” science of administration or separate offerings of administrative law and administrative studies. The lines were further blurred by the fact that the proponents of administrative studies also had in their ranks authors who combined vagueness with all the more emphatic rhetoric. One example was the tirelessly publishing Otto Nass.
¹⁶
Finally, traditional university rivalries also came into play on the question of whether administrative studies should be considered part of a jurist’s training or whether they should be affiliated with economics, political science, or perhaps even philosophy.

The many and varied statements about the “revival of administrative studies” during the first years of the regime
¹⁷
still shared some traits. They all rejected the model of the “legal method” that had held sway since Mayer. In so doing they implemented in administrative law the results of the so-called “quarrel over direction” in constitutional theory.
¹⁸
As it was, the old task of legal work, “to construct legal institutes, trace individual rules of law back to general concepts, and . . . deduce the implications arising from these concepts,”
¹⁹
had long since changed under the impact of teleological thinking. After a slight delay, the trend toward making constitutional interpretation open to political, social, philosophical, and historical considerations,
²⁰
which had begun around 1926, took hold of administrative law as well. Calls to take “reality” or “life” into consideration were the order of the day, though at first the methodological questions of how to grasp “reality,” what data to select, and, above all, how to translate them into normative principles were discussed hardly at all or in a noticeably vague fashion.

A second characteristic shared by all champions of administrative studies was the rejection of the image of an “apolitical” administration. That was the gist of Otto Koellreuter’s programmatic essay “Das Wesen des ‘Politischen’ in der öffentlichen Verwaltung” (The nature of the ‘political’ in public administration).
²¹
It was simultaneously a declaration in favor of the Nazi state, which, as one could hear everywhere, would not allow administration to deviate from the new basic political course. Objectivity and political neutrality, the orientation of administration toward the “job”
(Sache)
and a “common good” divorced from political needs of the day, attitudes that the same authors had praised as late as 1932, were now declared to be out of date.

To be sure, approval of the new state cannot be reduced to a uniform pattern, for the intellectual and social currents of which National Socialism made political use were too varied. But it was precisely those slogans about the “national
Rechtsstaat
,” about transcending the “jurist
out of touch with reality” (Koellreutter), about including “life” and “reality” that allowed every person to believe that subjective ideas could be realized. Talk about the “political responsibility of work in administrative law”
²²
therefore combined approval of the new state outwardly with the inner mental qualification that one really had one’s own political ideas in mind. Differences of opinion reemerged as soon as the question of implementing the new political commitment of administration was posed in concrete terms. Orthodox party jurists, in an effort to promote the mobilization of the executive in keeping with National Socialist ideology, strenuously denied that there was any difference between administrative activity and the “movement.” Others, while recognizing the political task of administration, sought to define lines of separation. For instance, Forsthoff emphasized the “essential difference” between bureaucratic administration and “dynamic leadership.” Bureaucracy, he maintained, took care of everyday things, operated in accord with strict rules in the mass administration peculiar to it, and was supervisable from above and reliable from below. Leadership, by contrast, dealt with the political decisions that set the course. Forsthoff’s express concern to protect the Nazi party from the humdrum of administrative service was in reality a defense of an administration guided by rules against the party’s claims to power. The party, too, saw it that way, and its reaction to this work was accordingly negative.