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A History of Public Law in Germany 1914–1945$
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Michael Stolleis

Print publication date: 2004

Print ISBN-13: 9780199269365

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780199269365.001.0001

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Administrative Law and International Law

Administrative Law and International Law

(p.373) 9 Administrative Law and International Law
A History of Public Law in Germany 1914–1945

Michael Stolleis

Oxford University Press

The ‘shift toward administrative law’ during the Nazi period was an attempt by state law jurists to avoid the dangerous questions about what form the state would take. Furthermore, what kept the state running was an administration that was guided by emergency decrees and operated in accordance with traditional rules. Carl Schmitt made this clear in 1932 in a suggestive way in a discussion of the classic theory of the separation of powers. He had argued that the legislative state, was today paralysed, its legitimacy exhausted. The jurisdictional state (Uurisdiktionsstaat), he claimed, was static, habitually conservative, and incapable of creative action. The governing state (Regierungsstaat) was marked by sovereign will and authoritarian. The legislative, no longer functional, was to be replaced by the will of the leadership, while a ‘restored’ professional civil service was to realize the common good defined by authoritarian fiat.

Keywords:   administrative law, Nazi period, legislative state, jurisdictional state, governing state

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